Tribunal Criminal Tribunal for the Former Yugoslavia

Page 46640

1 Tuesday, 29 November 2005

2 [Motion Hearing]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 9.05 a.m.

6 JUDGE ROBINSON: The Chamber scheduled a hearing this morning to

7 hear submissions from the parties on the question of severing the Kosovo

8 indictment and concluding that part of the trial.

9 We'll hear first from the Prosecutor.

10 MR. NICE: We filed a paper late yesterday afternoon. I don't

11 know if the Chamber has had an opportunity to consider it.

12 JUDGE ROBINSON: No. I just received it, Mr. Nice, and I haven't

13 got beyond page 2.

14 MR. NICE: Your Honour, I was, in fact, proofreading it rather

15 late yesterday and one or two things slipped through that required it to

16 be amended, so in fact the version you've got I think has been withdrawn

17 and a slightly -- a corrected or slightly amended version will be with us

18 shortly. But there's no difference in substance. And up and until quite

19 a late stage, there's no change in paragraph numbers.

20 But I would ask the Chamber to -- obviously, to consider that in

21 detail, and I don't intend to go over all the ground of that document now,

22 even though the Chamber hasn't had an opportunity to read it in advance.

23 However, perhaps I can summarise our position as set out in that

24 paper, and amplify the paper with one or two other observations. The

25 Prosecution is completely opposed to any question of severance of this

Page 46641

1 indictment. It is also opposed, should this matter be being considered

2 today, to the grant of any extra time to this accused for presentation of

3 his Defence, save for one particular circumstance which I cover in the

4 paper. And the Prosecution is of the view that there should be no further

5 delay in the hearing of Defence evidence as a result of the apparent

6 medical condition of this accused.

7 On that last point, I understood that we might have been expecting

8 further medical reports about today -- yesterday or today. None has been

9 seen by the Prosecution and therefore the present medical position is as

10 covered by reports that, in the submission of the Prosecution, reveal

11 little, if any, significant change in the condition of the accused as

12 reported on much earlier.

13 JUDGE ROBINSON: Mr. Nice, why did you use the word "apparent"

14 with regard to the condition?

15 MR. NICE: Because, Your Honour, there is a history of uncertainty

16 as to whether the accused has been taking his medication correctly, and

17 that has been adverted to again in the recent filings by the medical

18 experts. That's all I can say on that.

19 Now, the scheduling order of the Trial Chamber appointing today

20 for this discussion identified a number of factors without, if I may

21 respectfully say so, identifying with absolute particularity the concern

22 that it wanted us all to address. And I venture to suggest that any lack

23 of clarity in the question that we are addressing may be unfortunate. Are

24 we reconsidering severance because of some further evidence about the

25 accused's health position? Are we reconsidering severance because of the

Page 46642

1 way he has chosen to conduct his Defence, or for some other reason or for

2 a combination of reasons?

3 Now, because of that lack of certainty, there are some

4 difficulties, as I explain in the paper, in dealing with today's argument.

5 There has inevitably, and indeed as forecast in our earlier filing last

6 year on the same topic, been unhelpful and, indeed, unflattering

7 discussion in the media in the former Yugoslavia about the true objectives

8 of this issue of severance being raised. The media is making allegations

9 that the Tribunal as a whole is trying to help the Kosovo Albanians, or

10 trying to reflect the fact that there is no evidence on which to convict

11 the accused and matters of that sort. And it may be that this freedom to

12 make such assertions flows from the fact that there is some lack of

13 clarity as to why we are, in fact, discussing severance again at this

14 time.

15 JUDGE BONOMY: May I say right at the outset, Mr. Nice, that I

16 regard that as a preposterous submission. I found it offensive when I

17 read it. I was completely unaware of these comments that you've now drawn

18 to the attention, and that you should give credence to any basis at all

19 that might justify these astounds me.

20 MR. NICE: I absolutely don't. Completely the reverse.

21 JUDGE BONOMY: You've just suggested it's because of a lack of

22 clarity in the order that was given.

23 MR. NICE: I see, yes. I stand by that, and I'm sorry that Your

24 Honour takes the view that you do.

25 JUDGE BONOMY: Well, you can rest assured I do.

Page 46643

1 MR. NICE: Very well.

2 But the position, so far as the Prosecution is concerned, is that

3 we are facing here a trial of somebody who could reasonably be expected

4 would be on trial, the head of state of one of these involved parts of the

5 former Yugoslavia, a man suffering from a medical condition that is

6 unsurprising for his age, on a trial that is necessarily extensive.

7 Having said that it is extensive, it is essential to repeat - the Chamber

8 knows this - but to repeat so that the public perception is corrected if

9 it needs correcting, that the Prosecution evidence in chief only actually

10 lasted some seven weeks of this Court's comparatively short trial days,

11 seven full weeks, for each -- averaged out, for each of the indictments.

12 That is by no means an excessive period of time.

13 In that period of time, because it made full use of the means of

14 achieving economy in the presentation of evidence, the Prosecution called

15 some 295 witnesses, with another 50-odd in written format; 352 in total.

16 And before we move from the extensive nature of necessity of a trial like

17 this, and on the basis that the accused has been allocated the same time

18 for preparation -- presentation of his case as has the Prosecution, why,

19 then, in the time allowed him, he would have had the opportunity to call

20 200, 300 witnesses. And so, therefore, wherever the perception is given

21 that this is an excessively long trial and thus, perhaps, reaching the

22 position of unmanageability, it has to be borne in mind that the real time

23 consumed is actually moderate given the scale of the enterprise.

24 Twenty-one weeks for examination-in-chief by the Prosecution in

25 its case. If you doubled it - in fact, it was more than doubled because

Page 46644

1 of the way the accused conducted his case - that would take you to some

2 42-odd weeks. If you double that for Prosecution and Defence case, you're

3 in a case that lasts a little more, but not necessarily substantially

4 more, than one year of full-time sittings. So that we're not, in fact,

5 dealing with a case that needs to be construed or described as excessively

6 long.

7 I move on from the characteristics of the trial in the most

8 general terms, from its extensive nature to the fact that the accused

9 doesn't recognise the Court. That's not necessarily to be -- is

10 unexpected, and, indeed, that he seeks to serve purposes that are

11 non-forensic, also reasonably to be forecast, it may be, for trials of

12 this kind. And a central part of the Prosecution's approach to the

13 problems facing this Trial Chamber is that it must be possible for such a

14 man, in these comparatively -- or in these -- in circumstances that could

15 be forecast, it must be possible for him to be tried and tried to

16 completion. And that severance must, as at first sight - and indeed we

17 could say at second and all later sights, but at first sight - be entirely

18 inappropriate.

19 I move on in the paper, and if we can stick with the paragraph

20 numbers -- I don't know if the new ones have now been distributed. Thank

21 you very much. To deal with the question of the accused's use of time

22 made available to him, and to make good the argument that he should be

23 allowed no extra time, save in one particular possible circumstance. This

24 can be found at paragraphs 12 and thereafter.

25 This accused has made conscious decisions how to use his time. He

Page 46645

1 has used his time to date almost exclusively on the Kosovo portion of the

2 case. That means that he has little time to present evidence on the

3 Bosnia and Croatia parts of the case.

4 Now, he has been told by this Court repeatedly and fairly that

5 it's up to him how he uses his time and that he cannot expect an

6 extension. In those circumstances, he is - and this is at paragraphs 14

7 and 15 and thereafter - he is to be dealt with, in respect of what seems

8 to be a problem maybe about Croatia and Bosnia evidence, he is to be dealt

9 with exactly as if he was an accused making a conscious decision to call

10 no evidence, or almost no evidence, for those parts of the case. He has

11 actually acted in defiance of Court orders and invitations that he well

12 understands, and it -- I'm sorry, Your Honour.

13 JUDGE BONOMY: Mr. Nice, help me, where does this issue of

14 extended time arise? I have looked again at the order that fixed this

15 hearing, and it's all about health. And you know perfectly well that

16 that's the problem, that a submission was made that the accused required a

17 period of rest. And because that arose, this issue followed. Now, where

18 is the application for the extension of time that you're now addressing?

19 MR. NICE: There hasn't been one.

20 JUDGE BONOMY: Is it the agenda set by the Serb press and

21 commentators that you're addressing at the moment or is it the issues

22 raised by the Trial Chamber?

23 MR. NICE: Page 3 of Your Honours' and the Court's scheduling

24 order: "Noting that the accused's case has now progressed to

25 approximately 75 per cent of the 360 hours allotted to him to present his

Page 46646

1 case in chief, he has led almost entirely Kosovo-related evidence in that

2 time, and the end of the Defence case, without any extension of additional

3 time being granted, and not taking into account the current or future loss

4 of time due to the accused's ill-health is estimated to be sometime in

5 March 2006."

6 Your Honour, I have to say that it seemed to me the fact that that

7 was noted in the scheduling order, meant that, in some way, it was being

8 addressed.

9 JUDGE BONOMY: One thing that a court is bound to do, which

10 plainly a prosecutor isn't, on the present performance is keep an open

11 mind, and it would be preposterous for the Trial Chamber to pose the sort

12 of questions you've suggested in the first page of this submission. But

13 equally, having heard on one occasion an application for an extension of

14 time, bearing in mind the loss of time that's already occurred, and

15 bearing in mind the suggestion that was made that there would be more loss

16 of time, then it makes no sense not to simply lay out these as issues that

17 may at some stage in the future, and indeed in relation to one of them is

18 at the moment, causing concern. But my concern is certainly in relation

19 to the issue of adjournment in relation to the health of the accused.

20 MR. NICE: If the Chamber's only concern is in relation to health

21 of the accused, because the original timetable is expected to be kept to,

22 then --

23 THE INTERPRETER: Could you speak into the microphone, please.

24 MR. NICE: -- then that would be much easier. But I have to say

25 that reading the scheduling order in the form it was, and as I've just

Page 46647

1 read it out, made it pretty obvious to me as a possibility that the

2 Chamber was concerned, amongst other things, by the impact on future

3 conduct of the trial of the possibility of there being the need to

4 consider an extension of time allowed to him. And I have in mind very

5 much the way the Chamber has tried to establish with him whether he

6 recognises that he is running out of time when he's asking for more time.

7 JUDGE BONOMY: How could that justify severance? The issue is

8 severance. So how would the fact that he needed more time impact on the

9 issue of severing one indictment from the other two?

10 MR. NICE: Well, if the Chamber is unanimously of the view that it

11 has no impact on the question of severance and therefore could not

12 encourage the Chamber to grant severance, I can move directly to the

13 issues of health and severance itself.

14 JUDGE BONOMY: I may be speaking for myself on that, but I cannot

15 see how, if the trial is to run on smoothly, that severance would really

16 be an issue.

17 MR. NICE: Maybe I'll come back to that topic when and if I'm

18 asked further questions by Your Honour's other Judges. But I make it

19 clear that when dealing with this issue as I did, I was attempting to, and

20 I hope successfully attempting, to cover all the possible factors that

21 will drive the Court's decision in the future conduct of this trial. And

22 to sum, the question of the accused's use of his time so far has proved to

23 be an important or potentially important factor. But if we can part from

24 it straight away, then, at least for the time being, I will.

25 Just repeating what the Prosecutions position is: That there

Page 46648

1 should be no extra time granted to him in light of his current conduct, I

2 can take Your Honours to the place where I deal, in the filing, with the

3 only circumstances on which it might be thought there could be grounds for

4 extra time, and that's dealt with at paragraphs 21, 24, and 27 of the

5 filing. But I don't desire to go through them at this stage.

6 Now, when we come to the issue of severance generally and the

7 impact, if any, of the current position on the accused's health, we are,

8 first of all, significantly assisted by the Appeals Chamber's decision of

9 the 1st of November, 2004, on the assignment of Defence counsel.

10 Can I add to the citations of that decision that are in our filing

11 by one or two other references from that decision. The Appeals Chamber

12 noted, of course, that there is the presumptive right to

13 self-representation. It went on to observe that the right to

14 self-representation -- or it may be decided, is the term they put it in,

15 this way, whether the right of self-representation may be curtailed on the

16 ground of a defendant's -- that defendant's self-representation is

17 "substantially and persistently obstructing the proper and expeditious

18 conduct of his trial," and it expressed the view that the Chamber may,

19 under appropriate circumstances, "restrict the right on those grounds."

20 But then at paragraphs 13 and 14, it made these observations --

21 well, I can probably omit 13. At 14, it dealt with the possibility of the

22 health situation getting worse.

23 "How should the Tribunal treat a defendant whose health, while

24 good enough to engage in the ordinary and non-strenuous activities of

25 everyday life, is not sufficiently robust to withstand all the rigors of

Page 46649

1 trial work - the late nights, the stressful cross-examinations, the

2 courtroom confrontations - unless the hearing schedule is reduced to one

3 day a week, or even one day a month?" asked the Appeals Chamber

4 rhetorically. "Must the ... Chamber," it went on, "be forced to choose

5 between setting that defendant free and allowing the case to grind to an

6 effective halt? In the Appeals Chamber's view, to ask that question is to

7 answer it."

8 It then went on at paragraph 15 - and I've only got a couple more

9 citations that I want to draw to your attention and remind you of - to

10 say, of the Trial Chamber's decision that it affirmed in part but, as we

11 know, changed in part, it said:

12 "There was a legitimate basis, in other words, for the Trial

13 Chamber's conclusion that the trial 'might last for an unreasonably long

14 time, or worse yet, might not be concluded' if Milosevic were allowed to

15 continue representing himself. Given that finding, it was within the

16 Trial Chamber's discretion to assign counsel to Milosevic notwithstanding

17 his opposition."

18 At paragraph 17, it said:

19 "... any restrictions on Milosevic's right to represent himself

20 must be limited to the minimum extent necessary to protect the Tribunal's

21 interest in assuring a reasonably expeditious trial." And went on: "...

22 any restriction of a fundamental right must be in service of 'a

23 sufficiently important objective' ..."

24 At paragraph 18, perhaps quite importantly, it observed, when it

25 parted company with the decision of the Trial Chamber, that its finding

Page 46650

1 that the Trial Chamber's restrictions on the involvement of the accused

2 were excessive, were for three reasons: "(1) the medical reports relied

3 on by the Trial Chamber explicitly rejected the notion that Milosevic's

4 condition is permanent, (2) there was no evidence that Milosevic had

5 suffered from any health problems since late July ..." and then this:

6 "(3) Milosevic made a vigorous two-day opening statement ..."

7 And the Chamber will recall that it emphasised that again in

8 paragraph 19, I think, of its disposition, where it relied on the apparent

9 vigorous good health of the accused at that stage to justify what it said

10 was just "a presumption" about the decision of the Appeals Chamber that

11 Milosevic should take the lead in presenting his case.

12 Now -- and then it concluded with a passage that has indeed been

13 cited and referred to in our filing; namely, that if all goes well, the

14 trial should continue much as it did when Milosevic was healthy. Later,

15 it says this:

16 "If Milosevic's health problems resurface with sufficient

17 gravity, however, the presence of Assigned Counsel will enable the trial

18 to continue even if Milosevic is temporarily unable to participate."

19 Now, I come back to what I said at the beginning: On the medical

20 evidence so far available to us from the doctors invited to prepare

21 reports by the Chamber, there is no, as I read it, revealed change of

22 substance in the underlying medical position. However, the accused came

23 in a week or so ago and simply told you that he would not or could not

24 carry on, effectively. He was reluctant to apply in terms for an

25 adjournment on the grounds that he was incapable, and sought to get you to

Page 46651

1 make that decision by reference to medical opinion from doctors he had

2 retained, but he was clearly saying that he was not then able. He wasn't

3 in a vigorous state of health that the Appeals Chamber, it may be heavily

4 relied on, when it reversed the order of modality that this Chamber had

5 earlier imposed.

6 I draw that to your attention for this reason, and subject, of

7 course, to any other medical evidence that may be forthcoming today or

8 soon. The wise discretion spoken of by the Appeals Chamber lying in this

9 Chamber should, in the respectful submission of the Prosecution, now be

10 invoked to change the modalities of presentation of Defence evidence to

11 reflect the apparent inability on medical grounds of the accused to be as

12 vigorous as he was, and to ensure that a timely result can be achieved for

13 this case.

14 In any such changed modalities, the Trial Chamber will be able to

15 rely on paragraph 20 of the Appeals Chamber's decision, which envisages

16 that assigned counsel can conduct the trial even if the accused is

17 temporarily unable to participate.

18 There is, I know, an exchange of filings on the question of trial

19 in absentia from, I think, April and May of last year, setting out the

20 assigned counsel's views on trial in absentia and the research of the

21 Prosecution on this topic.

22 JUDGE BONOMY: Mr. Nice, that envisages a temporary change of

23 driver in the case, not a permanent one, and it also envisages that

24 occurring where the accused is temporarily unable to participate. And one

25 interpretation of that word would be "unable to conduct his own Defence."

Page 46652

1 But the situation that arose last week, or two weeks ago, was that he was

2 unable to be here.

3 Now, how does the Trial Chamber continue with the case if his

4 health gets to the stage where he can't even be here?

5 MR. NICE: It was with that issue in mind that I drew to your

6 attention the earlier passage in the Appeal Chamber's ruling, where it

7 asked the rhetorical question about what happens if the trial would have

8 to reduce to one day a week or one day a month, saying that to ask the

9 question is to answer it.

10 If we are moving to the position where the accused is no longer

11 able to conduct the trial for the, it may be thought, minimum acceptable

12 three comparatively short days per week, why, then, the regime has to be

13 changed to save him from those consequences of his ill health which make

14 such limited attendance the maximum he can achieve. The only way of

15 dealing with that is by a more active involvement of the assigned counsel.

16 JUDGE BONOMY: One other way of dealing with it is to sever the

17 Kosovo case, which is more or less complete, deal with it while the

18 accused recovers his strength to carry on with the rest of the trial, if

19 you consider it appropriate to do so, after Kosovo has been dealt with.

20 MR. NICE: There is no material to suggest that recovery in those

21 circumstances is something that would occur. Of course, we are, to some

22 degree, in the dark because we don't have the most detailed further

23 medical evidence that is required. We don't know the degree to which it

24 is absolutely established he's been complying with the medical regime

25 imposed. But there is no evidence to suggest that there's going to be

Page 46653

1 this recovery at any -- or any reasonable time.

2 I can't help observe Your Honour's observation about continuing

3 with the rest of the trial if we should consider it appropriate to do so.

4 I come back to my opening observation: The Prosecution is completely

5 opposed to severance, and there would be, as I understand it, having

6 discussed the matter, of course, with the Prosecutor, no contemplation

7 that there would not be full pursuit of the Croatia and Bosnia segments of

8 this trial, whatever the final decision may be about severance of the

9 Kosovo section.

10 JUDGE BONOMY: Well, you see, that rather shows a closed mind on

11 the issue, if I may say so, Mr. Nice, because I would have expected any

12 wise Prosecutor to decide on future conduct of the case in the light of

13 any decision that was made along the way, and you have absolutely no way

14 at the moment of knowing what that decision might be.

15 MR. NICE: Let's be blunt about this --

16 JUDGE ROBINSON: Otherwise one could be forgiven for construing it

17 as a political exercise.

18 MR. NICE: Let's be blunt about this: If the Court is raising as

19 a possibility that, following a conclusion of the Kosovo section in which

20 convictions were returned, the Prosecution might take the view that it

21 didn't then need to continue with the Croatia and Bosnia segments of the

22 trial, let me make it absolutely plain that the Prosecution's duty

23 includes a duty to the victims, and it has no doubts but in the

24 circumstances of the gravity of the matters charged against this accused,

25 including, of course, genocide in respect of Srebrenica, it has no doubt

Page 46654

1 that its duty would be to press ahead with those trials.

2 This is not, if I may say so, a question of a closed mind. This

3 is the question of the Prosecution recognising absolutely what its duties

4 are. This is a person at the very highest level of responsibility. We

5 have called hundreds of witnesses whose family and friends have suffered

6 as a result of what are said to be the gravest crimes committed by and

7 through this man. And there is no question of any form of expediency

8 relieving us of the duty to prosecute those cases. If those cases are not

9 prosecuted to conviction, save for this accused actually being unfit to

10 stand trial, it will be as a result of decisions made but not by the

11 Prosecution. I have to make that position clear.

12 JUDGE BONOMY: Mr. Nice, that is a Court in which accused people

13 may equally be acquitted as well as convicted, and the presumption that

14 you make that conviction is inevitable is one that is unworthy of you.

15 MR. NICE: I didn't make that presumption and I didn't express it

16 that way. I expressed it as a possibility, and that remains my --

17 JUDGE BONOMY: You said: "If these cases are not prosecuted to

18 conviction, save for this accused actually being unfit to stand trial, it

19 will be as a result of decisions made but not by the Prosecution." I find

20 that an utterly offensive submission to be made.

21 MR. NICE: That was a slip of the tongue. I thought you were

22 referring to the earlier passage about Kosovo. I meant, and I will

23 correct it, "prosecuted to conclusion." Of course I meant that, not to

24 conviction.

25 JUDGE BONOMY: Thank you for that.

Page 46655

1 JUDGE ROBINSON: Mr. Nice, then I understand you to say --

2 MR. NICE: I'm sure that Your Honour understood that's what I

3 meant, yes.

4 JUDGE ROBINSON: I understand you to say that, irrespective of the

5 outcome of the Kosovo indictment, were it to be severed, that the

6 Prosecutor has already determined that it would proceed with the rest of

7 the case.

8 MR. NICE: Absolutely. There is no question of these cases being

9 dropped. There is, I suppose, one possibility, which, to pick up His

10 Honour Judge Bonomy's point, were the accused to be acquitted and were the

11 findings of acquittal such as to have a spill-over effect, then of course

12 any Prosecutor would have to consider that. That's different from the

13 fundamental decision that's being made as to the appropriateness of

14 continuing with the prosecutions. So obviously that, and that situation

15 alone, is one that might lead to a change, yes. That's all.

16 Before I turn from health to the particular arguments about

17 severance, and in light of our earlier discussion about time for the

18 accused, the remaining time for his Defence is a comparatively limited

19 number of days. And that's another reason why I referred to the question

20 of allowing him, or not, more time. If we are working on the assumption,

21 as I now understand we are - assumption only, nothing more - that he will

22 be entitled to no more time, then by about March of next year, if sittings

23 resume, then the Defence case will be closed for all three indictments.

24 There may be a reopening of the case, there may be rebuttal and rejoinder,

25 but essentially the case for all three indictments will be closed, so far

Page 46656

1 as Defence evidence is concerned, in about March of next year.

2 Severance on the basis of health is being proposed, I understand

3 it, because it is thought that the accused will be more able to manage, or

4 will be able to manage, conclusion of the Kosovo section of the trial in

5 some period of time shorter than that which passes between now and next

6 March. But, in fact, the time required is very short in any event. And

7 it would be, in our respectful submission, wholly unjust to all those with

8 an interest in these proceedings to deny them, deny this Court, the

9 possibility of judgement for Croatia and Bosnia simply because of the

10 saving of the accused from participating in what may be literally just a

11 few weeks of court hearings.

12 Can I turn to the question of severance generally. That's dealt

13 with in -- that's dealt with in paragraphs 42 and on, and in the annexes,

14 or in the second of the two annexes attached.

15 Before I look at how we set out the arguments there, in general,

16 because again I would invite the Chamber to consider this submission in

17 detail, can I remind you of something said by the Appeals Chamber when it

18 dealt with joinder of this trial, or these trials, way back in April of

19 2002.

20 At paragraphs 30 and 31 of its decision, the Appeals Chamber made

21 the following observations: "... any possible prejudice to the accused in

22 facing one trial (and it sees none of any significance)" said the Appeals

23 Chamber, "is completely outweighed by the fact that a substantial body of

24 evidence relevant to the issue of the acts and conduct of the accused

25 himself in the Croatia and Bosnia trial is also relevant to that issue in

Page 46657

1 the Kosovo trial."

2 It went on to say: "If there are to be two separate trials, there

3 would necessarily be a large amount of evidence which would have to be

4 repeated in each."

5 At paragraph 31, it amplified, it may be, that part of its

6 decision, halfway through the paragraph, with these words:

7 "Any words of or conduct by the accused which point to or identify

8 a particular state of mind on his part is relevant to the existence of

9 that state of mind. It does not matter whether such words or conduct

10 precede the time of the crime charged, or succeed it. Provided that such

11 evidence has some probative value, the remoteness of those words or

12 conduct to the time of the crime charged goes to the weight to be afforded

13 to the evidence, not its admissibility. The prosecution would therefore

14 be entitled to prove in the Kosovo trial what is, in effect, its case in

15 the Croatia and Bosnia trial. To have to do so twice would be a grave

16 waste of the scarce resources available, for no discernible benefit."

17 JUDGE BONOMY: I have two questions arising from that, Mr. Nice.

18 The first one is: Do you say that the first of these propositions

19 has borne fruit, that there is a substantial body of evidence relevant to

20 the issue of the acts and conduct of the accused in Croatia and Bosnia

21 which is relevant to Kosovo?

22 MR. NICE: If Your Honour --

23 JUDGE BONOMY: Is that, in fact, the position?

24 MR. NICE: Yes. If Your Honour would be good enough to take the

25 filing which I hope has just been distributed to you and turn to Annex B.

Page 46658

1 In the time available, we have attempted to -- Annex B is -- its contents

2 are confidential. However, what we've done in Annex B is to list all the

3 witnesses called as part of the either Croatia or Bosnia parts of the

4 case. We can't pretend that this is an exhaustive analysis because there

5 wasn't time, but we have attempted, with all of those witnesses, to

6 identify - and if you look at it, you'll see the first one, two, three,

7 four, five, have entries beside them - whether there is in their evidence

8 material that would relate to the Kosovo section of the trial, or as in

9 the one, two, three, four, five, sixth, where we accept that there is

10 either little or no relevance to that --

11 JUDGE BONOMY: That's very helpful, thank you.

12 And the second question I have is this: Surely we've moved on

13 from the stage envisaged in the Appeals Chamber's decision because the

14 evidence has been led, and there's no question of that evidence having to

15 be led twice.

16 MR. NICE: The problem --

17 JUDGE BONOMY: Is that correct or not?

18 MR. NICE: It's certainly correct that we've led the evidence, and

19 thus it is certainly the case that were there to be two separate trials -

20 one for Kosovo and then continuing for Croatia and Bosnia - there would be

21 no need to call that evidence twice. Your Honour is quite right about

22 that. But the point that we are concerned about is a rather different one

23 and is expressed in our filing: If this body of material is available as

24 of evidential value in the Kosovo section of the trial, then there are one

25 of two possibilities: Either, A, the accused must be allowed time and

Page 46659

1 circumstances in which to meet it. That, of course, goes back to the

2 issue of extended time, but nevertheless that's a reality. Or it may be

3 the Chamber would have to try and attempt the impossible, which would be

4 to put aside in its mind all the evidence that was, in a sense, Croatia

5 and Bosnia and that related to Kosovo.

6 Now, with this in mind, and notwithstanding something that the

7 Appeal Chamber said in its decision on joinder, the Chamber may want to

8 have a look at paragraph 46 of the filing, where we cite, cautiously, a

9 very famous recent English case. Cohen and Others, also known as the Blue

10 Arrow Case, and as the Court may remember, this was, I think at the time,

11 said to be the second largest criminal trial in English history, tried by

12 a High Court Judge who, right at the end of the trial, decided to sever

13 the indictment and leave only one of a large number of counts to the jury.

14 He recognised that this would involve the jury having heard evidence now

15 no longer relevant. His direction to them was as favourable to the

16 accused in that case as could be; he told them to ignore evidence coming

17 from that other source or other parts of the evidence that could be

18 adverse to the accused in that case, while asking them to consider

19 evidence that could be beneficial. So there could be no more, it might be

20 thought, appropriate and favourable direction that the learned judge gave

21 to the jury in that case.

22 I read from paragraph 46:

23 "The English Court of Appeal recognised the 'power of the

24 subconscious' and that 'an impression formed when identifying [...]

25 material cannot be removed despite conscious and conscientious efforts to

Page 46660

1 effect total erasure.' Furthermore, the Court of Appeal concluded that

2 'no analysis can escape the fact that the jury were left with a large

3 part of the evidence which had been admitted to them but which had an

4 undetermined and questionable relevance to the one issue which so late had

5 been isolated for decision. In our judgement, this was a material

6 irregularity which must lead to the quashing of those convictions.'"

7 JUDGE ROBINSON: How is that applicable here?

8 MR. NICE: Well, Your Honour, I invite you to say, if you look at

9 the last line: "The Trial Chamber may wish to be cautious before acting

10 in contravention of the general principle sensibly expressed here." For

11 if in separating out for purposes of severance that evidence which is and

12 that evidence which is not specifically relevant to the Kosovo indictment,

13 it separates out evidence that, if our schedule is accurate, separates out

14 as irrelevant evidence that actually has an impact on this accused, his

15 thinking processes, his control of paramilitaries, his use of

16 extrajudicial lines of authority and so on, if such evidence has been

17 given but not actually specifically dealt with by him because cast as

18 irrelevant, why, then, the power of the subconscious to infect even a

19 Chamber of professional Judges exists.

20 And, of course on that last point I know and I think I've referred

21 to --

22 JUDGE ROBINSON: Mr. Nice, I consider that would be wholly

23 unmeritorious submission.

24 JUDGE BONOMY: I agree entirely with Judge Robinson. I take it

25 the English Court of Appeal had some authority for this statement of the

Page 46661

1 effect on the subconscious in general.

2 MR. NICE: I'm not sure that it referred to any authority for

3 that. But, Your Honour, we have --

4 JUDGE BONOMY: The decision is surely based on the fact that a

5 jury in an English trial do not have to give reasons for their decisions

6 and therefore the court can't be confident of the basis on which the jury

7 has reached its decision when so much irrelevant evidence has been heard

8 and they're asked simply to cast it from their minds. Entirely

9 inappropriate here, I would suggest, Mr. Nice.

10 MR. NICE: I respectfully stand by my position, and must tell you

11 this: We've also attempted to find from other jurisdictions authorities

12 that may assist the Chamber's proposition that severance at this late

13 stage of the trial might be possible. We've gone to Germany, where we

14 find that, I think, the Statute would allow it to happen in principle, and

15 we've managed to find some late severance cases, but this is severance by

16 the Appeals Court in Germany, severing a case where the Trial Chamber had

17 already made final decision. So the decision there is broadly similar to,

18 say, an appeals court in a common law jurisdiction sending a trial back

19 for retrial by a differently constituted court.

20 We've looked at the position in the former Yugoslavia, and it's

21 not in the filing because the information came to me very late, we have

22 managed to find some examples of severance. One, I think, of an accused

23 in a multi-accused trial - this is a late severance - where that

24 particular accused fell so sick that he could not attend court or

25 something like that, and therefore it was judged in the interests of the

Page 46662

1 overall trial that his case was taken entirely separately. But save for

2 quite exceptional cases like that and in the time available, we haven't

3 been able to find from parallel -- not parallel, from other jurisdictions,

4 examples of justified late severance of the type here.

5 And although I understand that at least two of the Court are

6 against me, the closest parallel on the facts is, indeed, the Blue Arrow

7 case to which we referred, and I have no hesitation in inviting you, at

8 leisure, to reconsider that.

9 Your Honours, if we then come back to the discussion on severance

10 generally, and if I can invite you, please, to turn to paragraph 42 of our

11 filing, and by headline, I'll take you through the arguments that we there

12 set out.

13 It has to be -- to some degree it may be necessary to consider two

14 alternatives, but it may be, in light of what the Court's been good enough

15 to explain today, that only one of them is really in contemplation. The

16 two alternatives are that if Kosovo was severed, Croatia and Bosnia would

17 be tried by a different Chamber at a later date. The other possibility is

18 that it would be tried by the same Chamber, this Chamber, either

19 immediately after Kosovo evidence finished or at some later stage when

20 Kosovo had been the subject of judgement or even of appeal judgement. And

21 I don't know --

22 JUDGE ROBINSON: Just a minute, Mr. Nice.

23 [Trial Chamber confers]

24 JUDGE ROBINSON: Yes, Mr. Nice.

25 MR. NICE: Your Honours, so if there are the two possibilities to

Page 46663

1 be considered - trial by another Trial Chamber, trial by this Trial

2 Chamber - then probably paragraph 42 can be disregarded.

3 Paragraph 43, if there's a significant gap in time between

4 conclusion of all matters in relation to Kosovo and determination of the

5 remainder of the trial concerning Croatia and Bosnia, there will be an

6 unusually large and potentially prejudicial gap between presentation of

7 Prosecution evidence and presentation of Defence evidence.

8 Paragraph 44, the timetable problems are pretty obviously

9 complicated if the Chamber has any intention of pressing on with the

10 Croatia and Bosnia indictment immediately, because we would then be in

11 this position: The Chamber would be hearing evidence with an open mind,

12 to pick up a phrase used earlier, while at the same time deliberating to

13 final conclusion questions of truth and falsity, guilt or innocence of the

14 accused. Very unsatisfactory.

15 The problem would then arise, if and when the Chamber made its

16 decision one way or another, that decision might be appealed and so the

17 Chamber would, and everybody else would, be acting in a state of suspense

18 on its findings, while listening to evidence on Croatia and Bosnia pending

19 the uncertain date of delivery of an appeals decision. And obviously, to

20 wait for the appeals decision before pressing on with Croatia and Bosnia

21 indictment would, whatever priority was given to that process, involve a

22 very substantial delay between the end of one part of this case and its

23 restart, or the restart of another part -- or the start of another part of

24 it.

25 I've dealt with paragraph 46, 47, 48 as now amplified. In 49,

Page 46664

1 there's the -- one of the aspects of health and mortality that we have to

2 consider in looking at the overall timetable of this case, and of course

3 severance would lead to inevitably very substantial delay in bringing a

4 judgement for Croatia and Bosnia, denying the advantage of that judgement

5 to the many people of the former Yugoslavia who would, by then, not be

6 alive to learn about it.

7 Paragraph 50 I think I've dealt with, save to say that -- yes,

8 I've dealt with the integrated nature of the case. The Prosecution, as

9 the Court will know, has always expressed a preference for the evidence

10 being given chronologically; Croatia, Bosnia, Kosovo. It was, in fact,

11 the Appeals Chamber on joinder that required the leading of Kosovo

12 evidence first in February 2002, because it said that we couldn't lead

13 Croatia evidence until the various time limits following on the service of

14 the indictment and material in respect of those other indictments was met;

15 and thus it was, and possibly because the Chamber also elected this, that

16 Kosovo went first there.

17 When the defendant -- when the accused came to lead his evidence,

18 I raised again the issue of the order of evidence, expressing a preference

19 that matters might go chronologically, but the Chamber ruled in favour of

20 Kosovo going first. The consequence of that is that, first, there's the

21 evidential problem to which I've already referred. As a matter of

22 interest, it may in a sense now only be historic, but had things been

23 otherwise, had we gone Croatia, Bosnia, Kosovo, we would undoubtedly now

24 be into the Bosnia section of this trial which, in one way, may be thought

25 to be the heart of the case, although the Prosecution, in its earlier

Page 46665

1 finding -- its earlier filing on severance, expressed itself as, of

2 course, neutral as between indictments because it is neutral as between

3 the grave suffering of those victims in all three scenes of war.

4 I've dealt with paragraph 51. And there were further arguments at

5 52 and 53 setting out the other various forms of prejudice that may be

6 suffered. But fundamentally, this has been, from first to last, on the

7 Prosecution's view, a case that has to be seen as a whole. There's the

8 joint criminal enterprise referred to, of course in slightly different

9 ways in the different indictments, but we've gone into that comparatively

10 recently. The case or the cases are fully integrated in so far as they

11 touch on the development of this accused's mental state, the reflection of

12 his mental state from one event to another and to a third, systems of

13 behaviour that he manifested at all three times which were systematic in

14 their disregard for the law. And in our respectful submission, it would

15 be as unjust to the Prosecution as to those who have a separate and non --

16 not immediately judicial interest in the outcome of these proceedings for

17 these indictments to be in any way severed.

18 But, Your Honours, I have to pick up a couple of points in

19 amplification of what I've already said. Going back to the potential

20 saving of time, if any, that would result from severance, His Honour Judge

21 Bonomy said that Kosovo was more or less complete. According to the

22 latest witness list from this accused, and I'm afraid it's not yet filed

23 officially - that's the subject of quite specific complaint in our filing,

24 again for consideration perhaps later - there are 37 witnesses, I think,

25 relating to Kosovo still in his list, in their 65 ter summaries. There

Page 46666

1 are then eight others -- just give me one moment, please.

2 [Prosecution counsel confer]

3 MR. NICE: Yes, I'm grateful. In addition to those 37, we've been

4 able to identify at least eight others that would seem to make them

5 candidates for being able to speak about Kosovo, so that would come to 45

6 altogether. And, of course, any high-ranking witnesses that the accused

7 may wish to call addressing the issue of the joint criminal enterprise in

8 Croatia and Bosnia would have or would be able to have an impact, if this

9 was the accused's plan, on events in Kosovo.

10 So that, in our respectful submission, it may well be that the

11 accused is determined to exhaust all his allowed time with Kosovo evidence

12 - it could easily be from the number of witnesses still listed - and that

13 severance will simply serve no purpose, save to deny a judgement on all of

14 these indictments that can properly be returned, if I go back to the way I

15 made my first assumptions, if time is not to be extended.

16 Now, Your Honours, that sets out our position. We have tried to

17 make it available to the other interested parties in advance by service

18 yesterday of the first version of the filing. I've been invited to go

19 first. I would ask for the opportunity to meet any particular arguments

20 that may be raised as against the proposition that severance should not be

21 allowed. I'm not entirely sure what positions are going to be taken by

22 the other three parties to address you in Court.

23 Thank you.

24 JUDGE ROBINSON: You may find that they're all in agreement with

25 you, Mr. Nice.

Page 46667

1 MR. NICE: They may be, but I'm not sure.


3 [Trial Chamber confers]

4 JUDGE ROBINSON: Mr. Kay, we'll hear from the accused before you.

5 THE ACCUSED: [Interpretation] I shall take up far less time than

6 Mr. Nice did.

7 I addressed you two weeks ago with a request that you respect the

8 position of the team of doctors from Russia, France, and Serbia to allow

9 me a period of rest, because that was observed on the basis of their

10 findings that my health had not been stabilised, that the possibility of

11 complications existed, and that a period of rest was indicated for at

12 least a period of six weeks.

13 You asked to hear the views of the Dutch physicians in that

14 regard, and now what is the state of that? What have they found? You

15 have that in the report. Dr. van Dijkman, who is a cardiologist, a

16 specialist, one that you selected here, in his report, wrote, among other

17 things, the following: "[In English] I strongly advise provision for

18 sufficient rest."

19 [Interpretation] And he added: "[In English] And it seemed to me

20 that the six-week rest period is somewhat too much." [Interpretation] So

21 the cardiologist selected by you has confirmed the need for rest. The

22 only question is whether six weeks is somewhat too much. So that is one

23 fact and one point I wish to address.

24 Not a single one of the doctors who considered the report that you

25 supplied them with questioned the findings of the consilium of physicians

Page 46668

1 from Russia, France, and Serbia.

2 Otherwise, on the 15th of November -- and Mr. Nice here noted that

3 I strolled in, and he said that I wasn't able to work. I know exactly

4 what I said: I said that I wasn't feeling well, and that was the first

5 time that I did so in the past four years, the first time I said that in a

6 four-year period, the first time I asked the session to be interrupted

7 because I really didn't feel well. And even then this request of mine was

8 met on your part by keeping me in that small room on this floor an hour

9 and a half while your physician examined me.

10 Now, all the time that you have been questioning the positions

11 taken by the consilium, which has now been confirmed by your own doctors,

12 the doctor at the prison forbid me to come into court, first of all on the

13 12th of November and then on a second occasion on the 21st of November. I

14 had prepared myself to come in here to court. I had put on my shirt and

15 tie, and then I was told there would be no transport and I wasn't able to

16 come. So when Mr. Bonomy says that I didn't come, I didn't come because

17 it was your own doctor who forbid me to come. I would like to make that

18 quite clear.

19 Now, finally, this question that I complained about on the 15th

20 and waited patiently for two months, with growing problems, health

21 problems, that needed to be addressed, the question of my very serious

22 symptoms, very high pressure that I feel in my ears and oversensitivity to

23 sound in general, at the medical centre of the Leiden University,

24 Dr. Dalal examined me fully and wrote an objective finding. When I say

25 "objective," I'm referring to the finding that was written without the

Page 46669

1 active part of the patient, so it was only the passive participation of

2 the patient, since the findings are based on long-term electronic

3 examination, and he told me that those objective findings of his fully

4 confirmed the symptoms that I complain of and the problems -- health

5 problems that I complain of.

6 Therefore, the physicians of my own choice who came here because

7 my state had not improved at all during those two months, and also the

8 doctors you selected yourselves, have come to the same conclusions, to all

9 intents and purposes. Your prison doctor told me that, over the past few

10 days, he supposed that I had managed to amass enough energy to deal with

11 the pressure that I have in my ears because he told me that Dr. Dalal, who

12 is a very highly placed professional in the area, is preparing some sort

13 of solution which will make it easier for me to deal with my health

14 situation or do away with the symptoms at all. So that is a very

15 interesting standpoint from the medical point of view, but I'm not going

16 to comment on it now.

17 JUDGE ROBINSON: Mr. Milosevic, we have not had the benefit of

18 seeing Dr. Dalal's report. You have been referring to it, so I just

19 wanted you to know that.

20 THE ACCUSED: [Interpretation] Mr. Robinson, I have not seen it

21 myself either, but I do know what he told me, after having examined me. I

22 was at the medical center of the university in Leiden, I underwent a

23 lengthy examination there. It was with the help of electronic

24 instruments. It lasts a long time. The patient has to lie down. There

25 are no questions and answers or anything of that kind. It is electronic

Page 46670

1 sounding, using electronic instruments. And then he told me after that

2 examination that his objective findings confirmed the symptoms that I

3 complain of. That's what he told me, and I assume he wrote that in his

4 report.

5 Dr. Falke came and told me that he has good news for me, that

6 Dr. Dalal considers that he's going to be able to mitigate those symptoms

7 or put them right. I asked him a logical question: When? And he said,

8 Well, in the next few days. We'll do our best to hurry up. So how am I

9 expected to work in the meantime? Well, I -- he said, well, I assume you

10 have accumulated enough strength to persevere, you've lasted that long,

11 and things along those lines. I was in Bronovo Hospital in September for

12 the magnetic resonance test, and before that an ENT specialist saw me.

13 That's been going on for months, for three months, and the situation

14 became worse and worse as time progressed.

15 JUDGE ROBINSON: Mr. Milosevic, I just wanted to clarify that we

16 did not have the report to which you have been referring. Proceed with

17 your submissions on the question --

18 THE ACCUSED: [Interpretation] I don't have it either. Yes, I'll

19 get to that, but it's all linked up.

20 As I was saying, I assume you do have the Dr. van Dijkman's

21 report, do you?

22 JUDGE ROBINSON: Yes, we have Dr. van Dijkman's report.

23 THE ACCUSED: [Interpretation] And it says here -- very well. "[In

24 English] We strongly advise provision for sufficient rest."

25 [Interpretation] That's what it says in his report.

Page 46671

1 JUDGE ROBINSON: But as you noted, he went on to say that he did

2 not consider a period of six weeks to be required.

3 THE ACCUSED: "Somewhat too much." [Interpretation] That's what

4 he said.


6 THE ACCUSED: [Interpretation] And I pointed that out. I didn't

7 want to quote it one-sidedly, quote what he said one-sidedly.

8 Therefore, gentlemen, it is my right to demand of you to enable me

9 to have the right to protect my own health, and I think it is your duty to

10 protect that right and support it. And that right is over and above all

11 the other preoccupations for which you have convened these proceedings

12 here this morning.

13 So my request is this - I hope it is sufficiently clear - and I

14 request that you enable me to have a pause, that is to say, a period of

15 rest in which to recuperate.

16 I understand that your basic preoccupation ...

17 [Trial Chamber confers]

18 JUDGE ROBINSON: Proceed, Mr. Milosevic.

19 THE ACCUSED: [Interpretation] Yes, I was waiting for you to finish

20 your discussion.

21 Mr. Nice, among other things, mentioned the question of whether I

22 was taking my medicaments or not. That can only be said by somebody who

23 doesn't know what prison procedure is like. You have to take your pills

24 in front of the guards in prison. That does not only apply to me, it

25 applies to everyone. And then the time at which you took your medications

Page 46672

1 is recorded into a log book.

2 I myself requested Falke to carry out a laboratory analysis to see

3 how my medicines were working, within the context of all my general

4 efforts to help myself. And I should like to mention the doctors that I

5 invited came more than two months after I put in a request to Falke and

6 from the time they sent me for my first examination. So all this was

7 organised without upsetting any of your plans.

8 So let's make each other understood there, let's be clear on that

9 point. I don't want to hear any more of the nonsensical kinds of things

10 that Mr. Nice has been saying.

11 Gentlemen, your principal preoccupation is time, and you have been

12 devoting such great effort to the question of time that when you speak of

13 my health state, you are looking at it exclusively, as it says in

14 paragraph 6 of your guidelines, the state of factors that upset these

15 proceedings, the time factors upsetting these proceedings, in your order.

16 So that I think that the protection of health and the measure to

17 which this megalomaniac procedure, with your permission, has been pursued

18 by the opposite side is upsetting my health, that, judging by all factors,

19 doesn't seem to be important to you.

20 I would like to remind you gentlemen of the following: In

21 paragraph 4 of your order, which we have here before us on the table, you

22 put forward the chronology of your efforts to ensure expediency of this

23 trial. I'm not going to quote those passages because you have them in

24 front of you. However, it is interesting to note, and also indicative,

25 that that chronology of events - that is to say, that enormous wish to

Page 46673

1 have expediency - begins in July 2004, and that is what your chronology

2 shows, which is a point in time when it is up to me to present my Defence

3 case. And the time I was given by you was 150 days, and you said that

4 that was the same as the 300 days allocated to the other side. Several

5 weeks ago, I mentioned here that the number of hours which I was given by

6 the opposite side shows the sum of -- which is lacking in 72 days. You

7 didn't allow me to continue along those lines, so I stopped, and I'm not

8 going to talk about that now either, but I'd just like to say that that

9 remains as a fact.

10 So your concerns over expediency and efficiency started when my

11 half time began, and to my detriment. And the speed at which the

12 proceedings have been evolving became important when it came to my

13 presentation of facts, and took precedence over those facts and precedence

14 over my state of health as well.

15 Now, had you expressed such concern over expediency during the

16 time of Nice's and Del Ponte's Prosecution case, then you would not have

17 allowed different witnesses to appear. Mr. Robinson, Mr. Kwon, you will

18 remember full well that we had witnesses here such some institute

19 established in haste in the space of a few days, right near here in

20 Amsterdam, and they held a report about genocide against the Armenians in

21 Turkey and the genocide in Rwanda and some other third place, I can't

22 remember which now, and that Dutchman talked about that at length, and you

23 would never have allowed things like that even to be presented here at a

24 place like this, including many other irrelevant witnesses. So we heard

25 about the Armenians, but we didn't hear about examples which the Dutch

Page 46674

1 institute and the only Dutch word that everybody knows in the world, the

2 word "apartheid," how that came into being. They didn't deal with the

3 question of apartheid, but they did deal with the Armenians in Turkey and

4 Turks. So that was part of his procedure, let alone other witnesses who

5 came to waste time here and talk about minor issues.

6 So you showed an enormous amount of understanding for the

7 megalomaniac ambitions of the opposite side to --

8 Yes, Mr. Robinson.

9 JUDGE ROBINSON: You are now wasting our time. We are here to

10 consider two issues: The question of severance and the medical -- and

11 your medical condition. Confine your submissions to those two issues.

12 THE ACCUSED: [Interpretation] Well, Mr. Robinson, you did not

13 interrupt Mr. Nice when he was making the most absurd claims here, and I

14 think that these absurd claims of his can be responded to --

15 JUDGE ROBINSON: If you're going to continue like this, I will

16 stop.

17 THE ACCUSED: [Interpretation] All right.

18 JUDGE ROBINSON: You told us you wish to make submissions. If I

19 did not interrupt Mr. Nice, it was because there was no reason to

20 interrupt him. Let us proceed.

21 THE ACCUSED: [Interpretation] Let us proceed. I'm referring to

22 what it says here in your own decision concerning the order that we're

23 discussing today. So the time lost, you say, due to my health, in the

24 period when you started expressing this intense interest in the

25 expeditiousness of the trial.

Page 46675

1 I want to draw your attention to the fact that this time that you

2 call lost or wasted is much shorter than time wasted due to another

3 matter, and that is when you unlawfully took away my right to

4 self-representation last year. Because of what you did, some of the

5 deadlines that you had set yourselves and that you mention in this

6 chronology were simply not met at the moment when my Defence case finally

7 started after the decision made by that Appeals Chamber of yours.

8 So, gentlemen, do not blame my health - and I'm not to be blamed

9 for the state of my health - for time wasted, when you're the ones who

10 wasted the time. As for all the time that's been taken up, and in terms

11 of my health, the other side there is also to be blamed, because of the

12 torture that they have been exposing me to due to their megalomaniac

13 designs. And you never oppose that.

14 In paragraph 5 from the end of your order, your scheduling order

15 for this hearing, today's hearing, you deal with the positions taken by

16 the Appeals Chamber. I think that, due to the importance of what you note

17 here, it is necessary to see what it says there in paragraph 26. It says

18 that: "[In English] If the prosecution fails to discharge this

19 responsibility, the Trial Chamber has sufficient powers under the Rules of

20 Procedure and Evidence to order the prosecution to reduce its list of

21 witnesses to ensure that the trial remains as manageable as possible.

22 Finally, if with the benefit of hindsight it becomes apparent to the Trial

23 Chamber that the trial has developed in such a way as to become

24 unmanageable - especially if, for example, the prosecution is either

25 incapable or unwilling to exercise the responsibility which it bears to

Page 46676

1 exercise restraint in relation to the evidence it produces - it will still

2 be open to the Trial Chamber at that stage -" [Interpretation] I emphasise

3 that - "at that stage," just like I pointed out the Prosecution a moment

4 ago - "[In English] to order a severance of the charges arising out of one

5 or more of the three areas in the former Yugoslavia."

6 [Interpretation] So what is referred to here are the resources

7 that you have available if the other side, and that is what is emphasised,

8 does not act in accordance with its obligation in paragraph 25, where it

9 says that the Prosecution has a great responsibility to prevent the trial

10 from being unmanageable due to an overabundance of material, et cetera, et

11 cetera. So your very own Chamber here says that: "The prosecution will

12 bear a heavy responsibility to ensure that the single trial ..." et

13 cetera, et cetera, that the trial is manageable.

14 It's not only that example, but also the systematic interpretation

15 of what the Appeals Chamber said in the context where the severance of

16 trials is discussed. Obviously, they took into account the situation that

17 came to pass a long time ago because of the megalomaniac ambitions of the

18 Prosecution in these proceedings that you call a trial.

19 I also want to note here that the Appeals Chamber did not look at

20 my health at all, and I don't think that they needed to look at it at all,

21 at that time, that is. But not even bearing that in mind, they emphasised

22 need to rest. Please, in paragraph 27, it says: "[In English] As has

23 been shown to be necessary in all long trials before this Tribunal, the

24 Trial Chamber will from time to time have to take a break in the hearing

25 of evidence to enable the parties to marshal their forces and, if need be,

Page 46677

1 for the unrepresented accused to rest from the work involved."

2 [Interpretation] So, gentlemen, the only effect that my health can

3 have on these proceedings is the fact that breaks are taken if my health

4 gets worse, or, with any luck, to have proper short rest periods so that

5 any worsening of my health is prevented. However, I am quoting your own

6 decision when you say that these are factors that constantly impede the

7 trial. And I have read out paragraph 26 to you, and you say -- you quote

8 paragraph 26 when you say that the trial becomes unmanageable, but it is

9 the other way around. I have quoted paragraph 26 to you, and the Appeals

10 Chamber has instructed you how to make the trial more manageable: To give

11 breaks from time to time, and so on and so forth.

12 Now, gentlemen, do you really think that somebody would be crazy

13 enough to believe that the Appeals Chamber would, in paragraph 26,

14 instruct measures to be taken that would be in contravention of paragraph

15 26 of their own decision? Do you think that your colleagues are that

16 unreasonable that they call for pauses in the trial, breaks in the trial,

17 and that that is counter-productive? That's the way it should be,

18 according to what Mr. Nice said here too. Of course, that's wrong. The

19 right way of interpreting it is that by severing the trial, you are

20 actually acting against the decision of the Appeals Chamber and you are

21 incorrectly interpreting their words. So that would be an abuse of a

22 document in order to violate that same document, which is quite

23 unbelievable. It is illogical and unlawful acrobatics.

24 Also, for years, you have been violating --

25 JUDGE BONOMY: Mr. Milosevic, what you ignore entirely in that

Page 46678

1 submission is that these words of the Appeal Chamber were pronounced when

2 this trial could sit five days a week, and elaborate arrangements have

3 been made to give you rest throughout the period since 2003.

4 THE ACCUSED: [Interpretation] When was it that you gave me a

5 break, a rest? Just remind me, please.

6 JUDGE BONOMY: Every week you get a rest, because you can only do

7 three days a week.

8 THE ACCUSED: [Interpretation] No one works five days a week here,

9 especially for such a long period of time, so please don't count on me --

10 please, in Dr. Van Dijkman's report, in a part that I did not quote, in

11 the paragraph that precedes the one that I quoted, it says: "In view of

12 the current work schedule [In English] it is understandable -- In view of

13 the current work schedule, it is understandable that the patient feels

14 fatigued. He has three court sessions per week and spends the rest of the

15 time preparing for them, including interviewing witnesses."

16 [Interpretation] So how is it that you think that I can interview

17 witnesses during these remaining days if I'm supposed to get some rest

18 then?

19 JUDGE ROBINSON: You can get the rest -- you could get the rest if

20 you utilised the services that are available to you. You do not have to

21 interview witnesses. That could be done by assigned counsel. You have

22 chosen to do that.

23 THE ACCUSED: [Interpretation] I have seen how the assigned counsel

24 work with witnesses when you made it possible for them to question

25 witnesses, by force, and I concluded that it was absolutely inadequate.

Page 46679

1 JUDGE ROBINSON: Mr. Milosevic, what comes to mind -- what comes

2 to my mind are the words of Marc Antony in his funeral oration for Julius

3 Caesar: "Ingratitude, more strong than traitors' arms ..." You are an

4 ingrate in relation to the work of the assigned counsel and the help they

5 have given you. It does you no credit for taking that approach to

6 assigned counsel.

7 Continue.

8 THE ACCUSED: [Interpretation] I do not wish to insult Ms. Higgins

9 or Mr. Kay, not in the least bit. But they know full well that they know

10 very little about the situation in the territory of the former Yugoslavia,

11 especially regarding issues that I am being indicted for here by Mr. Nice

12 and this entire side that he represents. Mr. Nice made absurd assertions

13 here, allegations regarding my alleged participation in various things in

14 Bosnia, and during the presentation of his case, he did not give a shred

15 of evidence about my alleged crimes in Bosnia-Herzegovina. He talked

16 about events that occurred in Bosnia-Herzegovina. But, on the other hand,

17 there is ample evidence that my greatest efforts over all those years was

18 to attain peace, and I was given credit for that by all sorts of Western

19 leaders as the person who gave the greatest contribution to that and --

20 JUDGE ROBINSON: Mr. Milosevic, I have stopped you. I want

21 submissions on the two issues before us: Severance and, to the extent

22 relevant, your health.

23 We'll take an adjournment for 20 minutes.

24 --- Recess taken at 10.39 a.m.

25 --- On resuming at 11.07 a.m.

Page 46680

1 JUDGE ROBINSON: Just to make sure that the transcript is correct

2 in relation to my reference to Marc Antony, it's: "Ingratitude, more

3 strong than traitors' arms ..." You can at least get it correct in the

4 English.

5 Mr. Milosevic, there's a matter in which I think you can help us.

6 You have 37 or 45 witnesses outstanding for Kosovo. How, in the light of

7 the remaining days left for your case, do you plan to manage your case so

8 as to complete Kosovo as well as Bosnia and Croatia? And, please, I don't

9 want to hear the refrain that this merely shows how little time or how

10 inadequate is the time that has been allocated to you.

11 THE INTERPRETER: Microphone, please.

12 THE ACCUSED: [Interpretation] The microphone wasn't switched on.

13 What I was saying was this: Mr. Robinson, the question of time you seem

14 to be placing in first place, so I assume you won't have anything against

15 me having comments to make with respect to that issue.

16 I should like to remind you, Mr. Robinson, that a certain amount

17 of time ago, I did indicate the need to give me adequate time. Had you

18 personally -- and that you personally said at the time that it was too

19 early to discuss the matter, that is to say, to give me adequate time.

20 Now, to carry on from where you interrupted with your comment that

21 I should use imposed counsel, let me present my position and you do with

22 it what you will and make your own conclusions as you desire. But I don't

23 think you'll be able to topple that position.

24 It is my right to represent myself, and that right emanates from

25 international law and is contained in your Statute as well. Therefore,

Page 46681

1 you are duty-bound to enable me to make effective use of that right. That

2 right cannot be made up for by some sort of assigned or imposed counsel.

3 It is my right to be able to present my own Defence, and it is grounded in

4 the documents that are well known to you all. So it is your duty to

5 enable me to use that right effectively and not some fictitious right

6 which is accorded me in formal terms whereas it is withheld in realistic

7 terms. If I have that right, then you must enable me to use it

8 effectively and to avail myself of that right.

9 And the comment that I don't have to proof witnesses myself is the

10 same as saying that I don't have to avail myself of the right accorded me

11 and that I have chosen to use my right to my own detriment. So the

12 substance of the matter is that I should be allowed to use that right

13 effectively.

14 Now, with regard to the question of time, once again, Mr. Nice

15 quoted different documents and so you'll allow me to do the same, to quote

16 from various documents. And I have sufficient examples for you, although

17 in Serbian because it is a Serbian translation, it is a statement by a

18 group of members of the Russian Association of International Law for

19 Monitoring the Process of the Prosecutor versus Slobodan Milosevic in the

20 International Tribunal for the former Yugoslavia, which a few days ago was

21 published by the Moscow Journal of International Law and it was translated

22 from that Moscow Journal. It is the largest and most important forum of

23 that nature in Russia, and the most important journal for international

24 law in Russia as well.

25 Among others, in point 1, which they discuss, it is the right of

Page 46682

1 the accused to have sufficient time. Now, this term "sufficient time"

2 means for the preparation of his Defence. That has been extracted from

3 "international documents," and this is what it says:

4 "After the signing of the first indictment raised against

5 S. Milosevic by the Prosecutor up until the start of the Prosecution case,

6 two years elapsed and eight months. Throughout that time, time was used

7 to prepare the indictment. Preparations of the indictment went on eight

8 months after the accused was in prison. Now, for the preparation of the

9 Defence case, Slobodan Milosevic was given three months."

10 And then they go on to quote your order concerning the preparation

11 and presentation of the Defence case of September 17th, 2003.

12 "After an extension of the time limit with respect to the

13 accused's health, the Defence case, as a whole, amounted to six months,

14 but that extended time was not used to prepare the Defence because the

15 Registry of the Tribunal denied Milosevic the right to meet with witnesses

16 in connection with his health. It is quite clear that the time for the

17 preparation of the Defence case in the most complex international crimes

18 contained in 66 charges and 1.000 events in prison conditions is

19 inadequate. In keeping with the principle of fair play and equality of

20 arms, the accused must be accorded at least as much time for his Defence

21 case as the Prosecution had for the Prosecution case from the time the

22 indictment was signed until the case went to trial. In conformity with

23 giving the accused sufficient time for preparation of his Defence case,

24 and taking into consideration the complexity of the case itself,

25 S. Milosevic must be given adequate time, and six months cannot be termed

Page 46683

1 adequate time. The request by the accused to be granted more time was

2 turned down by the Appeals Chamber as well, who said that, 'choosing to

3 represent himself, the accused has given up the right of enjoying the

4 benefits of the Defence team set up for him,' and that he himself, 'will

5 bear the brunt of not accepting the services of assigned counsel.'"

6 That is the decision of January 2004. In this connection, the

7 Appeals Chamber referred to four decisions made by national courts, but it

8 forgot to refer to the norms of international law which are in force, and

9 the most senior Chamber of the Tribunal, which was duty-bound to protect

10 the rights of the accused, confirmed the unlawful decision by the Trial

11 Chamber to the detriment of the accused for having opted to represent

12 himself without providing legal arguments in sufficient scope.

13 "Apart from that, this right is part of the rights that do not

14 have a time limit," and it says, "see Article 3 of international --

15 covenant of international laws where everybody has the right, as a

16 minimum, to the following guarantees and conditions." And the conclusion

17 is, of this group, that is to say, the group of the Russian International

18 Law Association, is that: "The Tribunal has violated the rights of the

19 accused to be given sufficient time to prepare his defence case."

20 I won't continue quoting. I will ask you to take up this

21 decision, and I'm sure your translators will be able to translate it into

22 English for you. They contain many other points, but I think it would be

23 beneficial for you to read it.

24 JUDGE ROBINSON: Did I understand you correctly to read from the

25 Journal of International Lawyers that this right is part of the rights

Page 46684

1 that do not have a time limit? Is that what you read?

2 THE INTERPRETER: Statute of limitations, interpreter's note.

3 THE ACCUSED: [Interpretation] I read what it says exactly in that

4 statement. I'll go back to that. Let me just see.

5 JUDGE ROBINSON: What right are they referring to? Is it the

6 right to a defence? Is it the right of an accused to put up his defence?

7 THE ACCUSED: [Interpretation] The right of the accused, and then

8 they quote "to have sufficient time and possibility for preparation of his

9 defence." That is point 1, which I quoted.

10 JUDGE ROBINSON: And is that the right which they say is without a

11 time limit? I'm trying to understand what you just read.

12 THE ACCUSED: [Interpretation] Well, Mr. Robinson, they don't say

13 that it has a time limit. What they say is, the amount of time that was

14 necessary and accorded to the opposite side for writing the indictment,

15 and claim that I must be given that same amount of time. And they quoted

16 exactly when the indictment was signed and how long it took them to

17 prepare for the Prosecution case to go ahead with the trial. So it's no

18 fluid category that we're dealing with here, without boundaries. They are

19 talking and comparing the time that the other side had at its disposal and

20 the time accorded to me by you. And those six months, or barely six

21 months, cannot be compared to a period of three years, let alone compared

22 to the fact that I am managing my Defence myself, whereas Del Ponte and

23 Nice have an enormous machinery at their disposal, including all their

24 services and experts and so on and so forth.

25 JUDGE ROBINSON: Thank you.

Page 46685

1 THE ACCUSED: [Interpretation] And when I mentioned -- Mr.

2 Robinson, when I mentioned the NATO pact officers, let me remind you,

3 since Mr. Nice is talking about proof and evidence, I would like to remind

4 you that their military expert, Mr. Theunens, said here on behalf of the

5 whole group working on the subject matter, that they studied thousands of

6 documents, and I asked him here, "Do you have any document of mine?" if

7 you remember, Mr. Robinson, and he said, "Yes, I do." And I asked him to

8 place it on the overhead projector.

9 JUDGE ROBINSON: Mr. Milosevic --

10 THE ACCUSED: [Interpretation] Do you remember that?

11 JUDGE ROBINSON: -- I can understand the submission that an accused

12 person is entitled to sufficient time, but I do not accept a submission

13 that there is no time limit for putting a defence. You're entitled to a

14 reasonable time. If your Russian association of lawyers said that there

15 is no time limit in putting a defence, and if by that they meant that an

16 accused person would be entitled to put a defence ad infinitum, I utterly

17 reject that. You're entitled to a reasonable time to put your Defence.

18 Continue.

19 THE ACCUSED: [Interpretation] Mr. Robinson, in responding to your

20 question, I precisely said that that is not what they claim, that the

21 accused has limitless rights. All they claim is that the accused must be

22 given the same amount of time as given to the Prosecution for preparing

23 the indictment. And they were able to establish that time in quite exact

24 terms by comparing the date in which the indictment was raised and the

25 date when the trial started here, and that was a period of time that was

Page 46686

1 exactly established, let alone the fact that before they actually wrote

2 the indictment, they had to have done some preparatory work as well.

3 So you did not understand the explanation and quotation that I

4 read out to you properly, so I suggest that you take this report and read

5 it for yourself, because I think that they are leading international

6 lawyers who took part in writing it, and I wish to add to this that we are

7 not only speaking -- although this is a statement by the International

8 Russian Federation legal minds, but of course there is a series of broad

9 circles of experts for international law from other countries, including

10 those countries who wrote the petition to Kofi Annan with respect to your

11 conduct towards me from some 30-odd countries that signed it and went to

12 visit the Secretary-General of the Security Council. So this is a

13 position that is widespread in the world, and it would suffice, if I were

14 in your place, if I were to read this position elaborated by the experts

15 from the Russian Federation that rank among the top professionals in the

16 world in their field.

17 As I was saying - let me continue - the present situation is the

18 direct result of a megalomaniac ambition by the other side and most

19 probably by the desire to have the quantity of material replace any

20 serious proof and evidence against me. Quantity over quality. Because

21 you cannot have evidence and valid proof for untruths. And you have

22 supported the other side through your tolerant relationship with them, and

23 asking them to be limited in their scope.

24 I am the main victim of having been bombed by various documents,

25 material witnesses, and so on, that the opposite side has been allowed to

Page 46687

1 present with the go-ahead from you. I think that this is a form of

2 torture and a form of cynicism to put that burden of responsibility upon

3 me, all the more so if this is linked to my health situation, which has

4 been significantly impaired because of the torture I have been exposed to.

5 And I would like to remind you that when General Stevanovic testified

6 here, in some context or other - it's not important now; we can look at

7 the transcript if we want to see the exact context - I said that the

8 opposite side served over a million pages of material on me. Mr. Nice

9 intervened at that point and said it was only 600.000, and with respect to

10 the others it was copies supplied twice.

11 Now, without entering into whether I was served double copies, and

12 would have to read through all the material to see whether that was true,

13 and there's no justification for that either, but nonetheless it's an

14 enormous amount of material. And that every participant in this trial had

15 to read 500 to 1.000 pages per day every day over the space of three and a

16 half years, without exception and without all their other obligations.

17 And a normal human being is quite certainly not able to read even a small

18 portion of that. And as I believe that nobody could claim to be a

19 superpowerful human in any sense here, then we come to the conclusion that

20 the situation is quite unrealistic and in this hall for three and a half

21 years we have had a group of people taking part in something that we can

22 call or is called a trial, whereas none of the participants in the

23 proceedings knows what it says in the files on the basis of which the

24 discussions are being held here.

25 Please, to a certain extent, it is not only that that people don't

Page 46688

1 know about; they don't know what the other side is prosecuting me for. I

2 would particularly like to highlight the issue of a Greater Serbia in that

3 context. This was represented by the other side four years ago when they

4 asked for a joinder of trials, that that was the red thread bringing all

5 parts of the case together, and the Trial Chamber agreed to that. So then

6 you cannot talk about severing the case without dealing with the destiny

7 of that particular issue.

8 On the 25th of August this year, Mr. Nice, after three and a half

9 years of trial, said that he was not prosecuting me on account of a

10 Greater Serbia, and he ascribed that idea to me from the very outset, from

11 his introductory remarks and then through the testimony of almost half or

12 even more than half of his witnesses who -- his witnesses, who spoke of a

13 Greater Serbia as my objective and answered questions put by him to them

14 in that context.

15 So how can you talk about severance, then, before giving answers

16 to certain questions? What is the fate of these proceedings that have

17 been going on for over three years where you and I, and probably the other

18 side, thought that I was being tried for a Greater Serbia, which was the

19 objective of some kind of alleged joint criminal enterprise. So that was

20 what we tried to deal with when putting questions to the witnesses and in

21 dealing with all the evidence, because that is what Mr. Nice was alleging

22 through his witnesses.

23 So, then, what is the legal validity of that part of the

24 proceedings, when we were all being deluded into believing that this was

25 the main objective of the Prosecution? So what's the point of all these

Page 46689

1 witnesses who talked about a Greater Serbia as my primary goal here? Are

2 you going to take that out of the evidence, the body of evidence, or are

3 you going to let me examine them further?

4 Also, what about this joint criminal enterprise? And what would

5 its objective be after this change? And what is this phantom of a joint

6 criminal enterprise that is being discussed here? And what is it that is

7 exactly being alleged? People who are sitting here, including me,

8 including you, on the one hand, simply cannot know all the things that are

9 referred to in all these documents that Mr. Nice served - a million pages,

10 no less - and no one knows what the Prosecutor is prosecuting, including

11 the Prosecutor herself. She doesn't know it either. I think that even

12 Franz Kafka would feel that he did not have great imagination compared to

13 this.

14 So now, gentlemen, after almost four years of a joined trial,

15 after omitting to exercise your own responsibilities and duties and to

16 bridle the other side, as instructed by the Appeals Chamber, so perhaps

17 you could have even severed the trial at some point earlier on, but now

18 you want to do it four years later. Four years later. And during those

19 four years, this was a whole, an entity, not only from the point of view

20 of process, but also from the material point of view, where the other side

21 presented its own body of evidence as a whole and then I based my Defence

22 case on that single entity.

23 And since there is this time pressure that you've been insisting

24 upon all the time, the crossover that you say, witnesses that testify

25 about Kosovo and Bosnia and Croatia, now I have to make a selection, it

Page 46690

1 appears, with a great deal of effort, I must say.

2 Immediately, there is another question that comes to mind: As for

3 these witnesses that, for the most part, pertain to Kosovo, but some of

4 them also have to do with Bosnia and Croatia, include witnesses that I

5 asked you to call: Clinton, Clark. And during his testimony here, you

6 did not allow me to put questions in relation to the war that he commanded

7 and the book that he wrote about it. And these are key witnesses. For

8 over a year, you've been in correspondence with them. It is high time for

9 you to understand that they will not come here without your order.

10 JUDGE ROBINSON: Mr. Milosevic, that, again, is a matter in

11 relation to which you owe a great debt of gratitude to assigned counsel.

12 Through their action, through their professionalism, we are considering

13 now a motion to subpoena certain witnesses, and without their

14 intervention, without their help, we would not have been considering this.

15 THE ACCUSED: [Interpretation] Yes, I know about that. I know

16 about that, Mr. Robinson.

17 So severance would create the following situation: That they

18 prosecute me for one thing, and halfway, I start defending myself from

19 other things that I'm being accused of. I have to defend myself a bit

20 from one and a bit from the other, and then what I do here, when

21 presenting the truth, is being sabotaged in practical terms; it is being

22 truncated. And the effect of the fact that Mr. Nice changes his position

23 with regard to a Greater Serbia halfway multiplies the effort involved.

24 What he said is true, that, as regards Kosovo, then, you would be

25 in a position to decide, under the impression of many years of having

Page 46691

1 heard senseless and totally baseless accusations related to Bosnia and

2 Croatia. He talks about victims here. Let me see one single victim of

3 mine here. He never established any link whatsoever between what he

4 presented and the charges that he's bringing against me. These victims do

5 not deserve this. They do not deserve having the wrong people being

6 accused of things done against them.

7 Mr. Nice mentioned Annex B. I don't have time to read it, but

8 let's have a look at it. The first witness here, Stjepan Mesic, the

9 current president of Croatia, who testified here, the first person

10 mentioned in Annex B, the famous Stjepan Mesic, who did his very best to

11 break up Yugoslavia, who stated himself that he carried out his job, that

12 Yugoslavia was no more. And he says here "[In English] ... where he said

13 ..." [Interpretation] and so on and so forth, and so on and so forth.

14 Nonsense, sheer nonsense. And this Mesic got that from this distorted and

15 forged BBC TV show which seems to be Mr. Nice's lodestar.

16 Indictments should be based on facts, not on comic books, TV

17 shows, what have you not. So this is kitsch, really, the entire

18 Prosecution case, both in terms of the vehicles used and the witnesses

19 called. Kitsch.

20 So now, if you wanted to check this, it would be as if somebody

21 were playing a game of football for 50 minutes, and then in the second

22 half he starts playing basketball. It's even worse, because the adverse

23 effects are only on my side. It is only the Defence that has to deal with

24 the negative effects. So it becomes even more senseless because the

25 change of the terms and conditions is only to my detriment.

Page 46692

1 And I wish to say --

2 JUDGE ROBINSON: Just a minute, Mr. Milosevic.

3 [Trial Chamber confers]

4 JUDGE ROBINSON: Yes, Mr. Milosevic.

5 THE ACCUSED: [Interpretation] So the proposal to sever the trial

6 is so pointless, but I think that you yourselves show the senselessness

7 through your own words: "[In English] ... for the Trial Chamber to sever

8 the Kosovo Indictment, conclude that part of the trial and render its

9 Judgement thereon ..."

10 Gentlemen, "part of the trial" are the words that you clearly use

11 here, so the objective should be to conclude part of the trial. But parts

12 of the trial cannot be concluded. Parts cannot be concluded. Parts of

13 the trial cannot be concluded. Trials have a Prosecution case and a

14 Defence case and then they can be concluded, but to conclude part of a

15 trial is basically an abuse of trial. Or what would that mean, to

16 conclude part of a trial? [In English] A mistrial.

17 [Interpretation] I think that this Kafkaesque situation that I

18 just described, if there were to be a severance, would make the entire

19 situation even more absurd and more incredible. Of course, again, you're

20 going to decide as you wish, and then you won't understand why, throughout

21 the world, this trial of yours is being treated as an ordinary farce.

22 So, gentlemen, I'm opposed to your order, and the first thing I

23 ask you to do is to return to me my right to health, to make it possible

24 for me to have a break to recuperate.

25 And in relation to what Mr. Bonomy said when he expressed his

Page 46693

1 astonishment when Mr. Nice was referring to what the public was talking

2 about, I wish to remind you of the following: In all the paragraphs of

3 the Kosovo indictment where alleged crimes are referred to over the

4 allegedly unarmed Albanians, it says: "The forces of the Federal Republic

5 of Yugoslavia and the Republic of Serbia" did such and such a thing. In

6 all paragraphs, without exception. All of Serbia, and everyone in the

7 international public knows that the forces of the FRY of Serbia were

8 protecting, defending the country from terrorism and foreign aggression.

9 That is what is perfectly clear.

10 Now, this phrase which is used in every paragraph pertaining to

11 the alleged crimes, "the forces of the FRY and Serbia," you are supposed

12 to make a judgement, when lo and behold, the negotiations on the final

13 status of Kosovo and Metohija are about to start, not to mention the fact

14 that as a precondition for bringing the war to an end, we got the firmest

15 possible international guarantees for the territorial integrity and

16 sovereignty of the country. So what a coincidence. Is there anyone that

17 you can dissuade that that is not the aim of those that you receive orders

18 from, that it is the forces of the FRY and Serbia that have to be found

19 guilty for defending their own territory so that those who really did this

20 would not stand accused but rather achieve their geopolitical objectives.

21 So that is quite clearly present in the public opinion. And this is a

22 coincidence that everybody noticed immediately. It was not necessary for

23 anyone to explain it to them.

24 JUDGE BONOMY: Mr. Milosevic, I wonder if you can help me and tell

25 me how these instructions are conveyed to me, because I'm obviously

Page 46694

1 missing some part of the information that you seem to consider as

2 essential to my judgement of this matter. How is it I get my orders?

3 Where do they come from? You who so proudly denies the allegations

4 against you about conveying orders to others on the basis of no

5 information, on no evidence, what is the evidence you suggest indicates

6 that I receive orders from somewhere?

7 THE ACCUSED: [Interpretation] Mr. Bonomy, this entire Court was

8 envisaged as an instrument of war against my country. It was founded

9 illegally on the basis of an illegal decision and carried through by the

10 forces that waged war against my country. There is just one thing that is

11 true here: It is true that there is a joint criminal enterprise, but not

12 in Belgrade, not in Yugoslavia as its center, but those, who, in a war

13 that was waged in Yugoslavia from 1991 onwards, destroyed Yugoslavia.

14 Yugoslavia did not disintegrate by --

15 JUDGE BONOMY: You fail to answer my question. Please answer the

16 question rather than embark on a political diatribe.

17 THE ACCUSED: [Interpretation] Mr. Robinson -- or, rather,

18 Mr. Bonomy, I'm not making political speeches here at all. I think that

19 you are in the service of those who committed crimes against my country

20 and against my people, and you're receiving a salary from them.

21 JUDGE BONOMY: You're refusing to answer the question, are you?

22 THE ACCUSED: [Interpretation] No, no, I'm not refusing. Do you

23 want to tell me who pays your salary? Do you wish to claim that you

24 receive a salary from the United Nations? Who finances this Court,

25 Mr. Bonomy? Who established this Court, Mr. Bonomy? Who effected an

Page 46695

1 aggression against my country, Mr. Bonomy? Your country. And who am I

2 asking to come in to testify? Your presidents and Prime Ministers.

3 JUDGE BONOMY: Are you suggesting I am not paid by the United

4 Nations?

5 THE ACCUSED: [Interpretation] I claim that, Mr. Bonomy, because

6 the United Nations are -- finance this illegal Tribunal of yours. It's

7 financed from all manner of sources. I have enumerated some of them.

8 Now, whether you, in formal terms, whether you, in formal terms, receive a

9 salary via this institution which calls itself a United Nations Tribunal

10 is quite immaterial as far as I'm concerned.

11 JUDGE BONOMY: Well, now you move on to another issue when you're

12 proved to be wrong. So let's concentrate on the issue that you're

13 addressing; the question of severance.

14 THE ACCUSED: [Interpretation] Therefore, gentlemen, as I've

15 already told you, I am opposed to severance because I would say that was

16 -- that was a war, it was one war. I said Yugoslavia did not

17 disintegrate or disappear in some manner, but it was destroyed in a

18 planned manner, forcefully, through a war, and that war is still being

19 waged, is still going on. And one of the instruments of this war is your

20 illegal Tribunal.

21 Let me say straight away, as far as your judgements are concerned

22 and rulings in joinders or not joinders, I'm not afraid of them at all,

23 because if you judge according to the law and the truth, then there would

24 never have been this trial in the first place. But as we do have a trial,

25 it can end only in one way: A decision on the non-existence of

Page 46696

1 culpability. And if you don't rule based on justice and truth, then your

2 ruling will disintegrate and will burst like a bubble of soap, because the

3 court of the world and the court of justice and the truth is stronger than

4 any other court. It is up to each one of us, and each one of you

5 gentlemen, to opt and choose what place we're going to have before that

6 court of history, and what its decision will be. So don't harbour any

7 illusions on that score.

8 Therefore, as I said, I am opposed to severance. I demand that I

9 be given a rest period to recuperate. I stress that today, too, I came in

10 in a very poor state of health, extremely poor, but I did come in so that

11 we can continue the proceedings. Therefore, I demand that you consider my

12 request to give me a break, a period of rest. And as for severance or

13 non-severance, I've stated my views on that matter, too.

14 JUDGE ROBINSON: Thank you, Mr. Milosevic.

15 Mr. Kay.

16 MR. KAY: Thank you, Your Honours.

17 The submissions of the accused center on two issues that are of

18 great importance to him, the first being his health and the second being

19 the scope and scale of the case against him and the materials that he has

20 had to deal with. And it was clear that his case has been conducted by

21 him in a fairly continuous manner for almost a year, when a new

22 complication in his health arose, which is not an apparent illness, as

23 described by the Prosecution, and there is not a single reference to it

24 being an apparent illness. It is a genuine health condition, backed up by

25 medical reports, and I understand the report that was discussed this

Page 46697

1 morning will be ready from the translation department this afternoon for

2 Your Honours to consider the specialist report concerning the audiology of

3 the accused.

4 When we started this trial, it was the Prosecution who sought the

5 joinder of all three indictments, although they had not themselves drafted

6 initially joined indictments. They had drafted distinct and separate --

7 THE ACCUSED: [Interpretation] Mr. Robinson.

8 JUDGE ROBINSON: Mr. Milosevic.

9 THE ACCUSED: [Interpretation] Let me just stress for the public

10 listening to this in the Serbian language, the interpretation into Serbian

11 was that the Defence asked for a joinder of indictments, whereas I see

12 that Mr. Kay, in fact, said it was the Prosecution who sought the joinder

13 of all three indictments.

14 JUDGE ROBINSON: That's quite clear. That's quite clear, thanks.

15 MR. KAY: Thank you. I'm grateful. And that is clear. It was a

16 Prosecution initiative which the Trial Chamber did not find in favour of,

17 but there was an appeals hearing, and representations were made at that

18 stage concerning the shape and form of the trial. And we're now dealing

19 with the year of 2001, 2002, some considerable time ago, and at a stage

20 when the shape and look of the trial was unable to be predicted.

21 In that judgement by the Appeals Chamber, it was clear that the

22 Chamber was concerned with any development of the case that would become

23 unmanageable for the Trial Chamber or unmanageable for the accused, would

24 require the decision, which was not a permanent decision but one that was

25 temporary and open to review, for there to be a reconsideration of the

Page 46698

1 issue of the severance of any one or two counts from the trial before the

2 Chamber.

3 Our concern here today is that the health of the accused in

4 conducting his Defence is able to be, to such an extent and in such a

5 form, that he is able to provide an effective Defence, and that the time

6 available to him in which to present that Defence on all three indictments

7 is sufficient and adequate for that to be effective. At this stage in the

8 trial, on the time allotted by the Chamber, we are at approximately the 75

9 per cent mark, having gone 75 per cent through the time allotted for the

10 Defence case. It will be apparent to all that in that period of time we

11 have not dealt with, in an effective way, the defence concerning Croatia

12 or Bosnia in the indictments, and our concern is that the accused may not

13 have sufficient time, having concluded the Kosovo section of the trial, to

14 then be able to effectively put his Defence and case in relation to those

15 two remaining indictments.

16 The scale of the case may be one of the reasons for that. In just

17 considering the Kosovo indictment, when you break down in each count the

18 separate allegations of criminal offences, as well as consider the fact

19 that two forms of criminal responsibility are alleged - in Article 7(1)

20 individual criminal responsibility; Article 7(3) superior command

21 responsibility - and break down within the paragraphs of the indictment

22 the separate allegations concerning each municipality, all of which will

23 require findings, as a lawyer approaching that, I've been able to see and

24 spot what I would consider to be 150 to 200 separate allegations. In

25 fact, the findings of fact to deal with those, what are effectively 200

Page 46699

1 counts, would be some tenfold, because each would have within them eight

2 to ten elements of findings. This Trial Chamber, in relation to Kosovo,

3 is really dealing with what amounts to 2.000 findings of fact relating to

4 some 200 incidents which have been conjoined into five or six counts but

5 are, in fact, made up of many separate and different allegations, each one

6 of which would be capable of proving a count if the evidence was adequate

7 or sufficient.

8 It's said that, in relation to the three indictments, that the

9 accused faces 66 counts. That's only counting the chapter headings. In

10 fact, with the two distinct forms of criminal liability, 7(1) and 7(3),

11 he's facing 132 counts within the three indictments. And if one did the

12 same exercise concerning the Kosovo indictment, the multiplicity of those

13 charges, counts and allegations reach into the thousands and, I suspect,

14 somewhere up near the figure of 10.000, having considered the issue from

15 the perspective of the Kosovo indictment.

16 In our submission, it is no wonder that the scale and scope of

17 this case does have an effect upon the accused's health, and it has an

18 effect on the manageability of the trial.

19 We're at a stage now where the accused said in open session

20 recently that he had some 19 Kosovo witnesses remaining. A witness list

21 has been provided to the Trial Chamber from his best assessment of the

22 outstanding witnesses that he would like to call, amounting,

23 approximately, to some 200 witnesses. That witness list would amount to

24 all three indictments being considered under that total of witnesses. In

25 our submission, again, it is no wonder that the scale and scope of this

Page 46700

1 case provides him with difficulty in relation to his health.

2 The Prosecution, throughout this case, have been complaining about

3 the lack of notice and lack of time allotted to them in dealing with

4 issues. We're concerned that any time that is made available is available

5 so that the accused can provide that effective Defence that he wishes to

6 put forward in relation to all three indictments.

7 In relation to the evidence that's been called already, a survey

8 of the Defence witnesses reveals that about 15 per cent of the time of the

9 Defence case in the Kosovo portion has been also covering issues

10 concerning Croatia and Bosnia. So effectively what the Court has been

11 dealing with to date has been the Kosovo indictment.

12 A number of facts and figures in relation to the scale and extent

13 of the case are probably worth considering at this stage because the

14 issues of manageability and health, as we say, and pressure on the Defence

15 and pressure on the Court concerns the scope and scale of the

16 documentation and the issues that have to be considered.

17 The assigned counsel have put together a schedule, which I hope

18 the Court will find helpful, detailing these matters, and I'd like them to

19 be handed out because they do put into context that which is often spoken

20 about publicly but never actually quantified.

21 We're at over 46.000 pages of transcript at the moment, and in the

22 course of the proceedings against the accused, which started in July of

23 2001, there have been 2.256 separate filings in the proceedings. The

24 number of pages of those filings have amounted to 63.775.

25 The exhibits the Prosecution have produced, 930, are broken up

Page 46701

1 into different tabs and sections, amount to over 85.000 pages of exhibits,

2 and that doesn't include DVDs that contain information within them. The

3 Prosecution produced 117 videos. The Defence have produced 328 exhibits,

4 and they amount to approximately 9.000 pages to date.

5 In relation to the disclosure that has taken place to enable the

6 parties to deal with the case, the number of pages under the Rule

7 66(A)(ii) disclosure, statements of evidence to be relied on in the trial,

8 over 106.000 pages. Number of pages relating to Rule 66(B), over 207.000

9 pages. And of the Rule 68 material served by the Prosecution, that

10 amounts to over 930.000 pages.

11 We're dealing with a case at the moment that has over a million

12 pages of documents -- over 1.2 million pages of documents.

13 JUDGE ROBINSON: Mr. Kay, I'm sorry to interrupt you.

14 Mr. Nice, I'm going to ask you to reply and to attend to one

15 matter in particular. I tell you now so that if you need to prepare for

16 it, you will. I asked, when you made your submissions, why did you refer

17 to the apparent illness of the accused. Mr. Kay has dwelt on it, so has

18 the accused.

19 MR. NICE: I can shorten you. I've checked that matter, because

20 my answer was incorrect. There's nothing in the recent filings that says

21 anything about it. It's only the earlier filings.

22 JUDGE ROBINSON: The filings of last year.

23 MR. NICE: That's right. I checked that and I was going to draw

24 that to your attention in any event.

25 JUDGE ROBINSON: Thank you.

Page 46702

1 Mr. Kay, yes.

2 MR. KAY: Thank you, Your Honour.

3 The accused himself has been in custody, as we know, for some four

4 years and five months on these proceedings, and, during that period, has

5 had to deal with this quantity of material that the case to date has

6 produced. We know that the infrastructure of the Court often has

7 difficulty coping with the volume of material. There have become

8 difficulties with translation of documents. The allocation of documentary

9 space for the Defence in this case is some 1.000 pages a month, a quantity

10 quite easily able to be exceeded in relation to the documents that he was

11 caused to present, as well as an amount of material easily exceeded by the

12 Prosecution in the presentation of their case.

13 We know that, in certain filings, the tracking of evidence may

14 cause difficulties. The recent issue concerning documents marked for

15 identification and tracking their progress through translation, how they

16 were produced in evidence, what the arguments were -- of admissibility

17 were to be. The assigned counsel took some four weeks working alone on

18 that document with assistance from interns brought from outside to try and

19 help us manage the materials. I know the accused didn't put in a written

20 submission on that, but resources available to him, it would have been

21 impossible for him to have achieved, and we dealt with that matter.

22 That filing itself had problems. The Prosecution put in a

23 response to our document which had a clear error in it, described as a

24 technical error but plainly an error that had come about because of the

25 scope and scale of the materials that had to be dealt with. And it wasn't

Page 46703

1 surprising that there was a misunderstanding of a particular section that

2 led to an error they filed running throughout their document.

3 None of that is good for manageability. None of that is good for

4 the conduct of the Defence case, as much as the Prosecution case. It's in

5 our interest to have the accused's exhibits admitted into evidence, and

6 it's in our interest to have, at the time they're produced, as many of his

7 documents translated as possible so that at the time the Trial Chamber is

8 able to deal with translated documents that it's able to more readily

9 comprehend, and the efficient use of time is more properly catered for

10 rather than having documents read out on the ELMO.

11 At the time of the joinder of this case, it was very clear that

12 the Prosecution was submitting on a basis that included a plan for a

13 Greater Serbia and in which they had quite clearly connected the accused,

14 and a return to the original filings made by the Prosecutor, the arguments

15 made at the time, all of them carry with them that connectivity with that

16 issue.

17 Now, in 2001/2002, we may not have been better informed on the

18 state of their evidence. We have been now because we have had the benefit

19 of their case and there has been a Defence case dealing with, in

20 particular, Kosovo. It is quite clear that the Greater Serbia concept did

21 not fit, and does not fit, with the allegations they make concerning

22 Croatia and Bosnia. Assurances and representations made at the time on

23 that matter, in our submission, have not proven to be right upon the

24 evidence.

25 During argument at the time, in 2001, before the Trial Chamber,

Page 46704

1 the Prosecution were asked to account for this issue. There had been

2 submissions by the amici concerning the differences between the

3 indictment, between each of the particular areas - Croatia, Bosnia and

4 Kosovo - and the Trial Chamber sought clarification. At no stage was the

5 Prosecution case disassociating itself with that particular concept and

6 idea, and it was a part of the reason for connecting all three indictments

7 that they were mounting at the time.

8 Now this Trial Chamber is able to look back on the evidence,

9 consider the validity of the representations made at the time, and, in our

10 submission, it quite clearly discloses that, whatever allegations they may

11 have concerning that issue in relation to the Croatia and Bosnia

12 indictments, it simply does not hang together in relation to the Kosovo

13 indictment.

14 The Prosecution have filed, yesterday or today, their submission

15 in relation to the hearing today. I've received this this morning. And

16 Annex B, which is a list of witnesses that the Prosecution have called in

17 the Croatia and Bosnia phase of the case, apparently sets out grounds for

18 connectivity between those witnesses and the Kosovo indictment. Again,

19 this is another 20 or 25 pages of schedule. I've only been able to look

20 at the first page, and I think it's worthy of comment. To reply to a

21 document like this would take us some two or three weeks of work. But the

22 first page I can largely deal with, as it's been an aspect of the case

23 I've been reviewing recently concerning preparations for the submission of

24 a final brief.

25 The first witness, C-37, has "Concern about the ethnic balance in

Page 46705

1 Kosovo" written in his box. Well, he may have been concerned about the

2 ethnic balance in Kosovo, but he does not provide one shred of evidence

3 that goes to the issues in the Kosovo indictment. His evidence concerns a

4 particular part of Croatia in which he had a role to play, and if you go

5 back to the transcript and see the terms of his evidence, you would not

6 be, in any way, shape or form, considering him as a witness to do with

7 Kosovo.

8 The second witness, Mesic, the accused has dealt with him at

9 length to date. Again, you read through his evidence, he has no relevance

10 to the Kosovo indictment at all. It's written here, "Milosevic as

11 centrepiece of Serb Nationalism." Well, Mr. Mesic isn't needed as a

12 witness to put that allegation against the accused by the Prosecutor.

13 They have tried to call as many witnesses as possible on that issue within

14 the Kosovo component of the case. So to try, in some way, to connect him

15 with the Kosovo indictment, in our submission, is not a valid submission

16 at all.

17 The next witness, Matovina, again, general matters - nothing to do

18 with Kosovo - general matters concerning the background of Kosovo as an

19 autonomous state -- an autonomous part of the Serbian state, and nothing

20 within his evidence that goes to prove a single count within the

21 indictment.

22 Anastasijevic, the journalist: "Modus operandi of the accused.

23 Pattern of behaviour." This was a journalist writing articles in the

24 Croatia and Bosnia conflict, giving no evidence about Kosovo at all. And,

25 again, for that heading, "Modus operandi of accused. Pattern of

Page 46706

1 behaviour," in our submission, this is thoroughly over-egging this pudding

2 to call this witness on this matter.

3 JUDGE BONOMY: Mr. Kay, though, on one view, the point of this

4 annex was to support the position that Mr. Milosevic is actually taking

5 here. Now, what purpose does it serve to then rebut every one of these,

6 one by one, other than to say, Well, there will be an answer eventually

7 when I come to make my final submission?

8 MR. KAY: What it shows is that evidence is being called or relied

9 upon out with the Kosovo indictment, that the Prosecution lay their hands

10 on any single thing that they can to show a connectivity. That has to be

11 dealt with by the rest of us. That has to be dealt with by the accused.

12 If your arguments are not shaped and honed and based on reality, this

13 scatter-gun approach not focused on the indictment makes the resources

14 available to the accused, assigned counsel and, no doubt, the Trial

15 Chamber, having to deal with all these issues completely pointless just to

16 have to negate them. And this schedule, this annex here, which they rely

17 upon in support of their argument to maintain joinder of the counts within

18 the trial, in our submission, is, again, making a submission that is not

19 based upon valid argument and solid reasoning. I doubt very much whether

20 Mr. Nice had a hand in drafting this at all.

21 JUDGE ROBINSON: There's something that I'm not clear about. For

22 example, in Matovina, it says, "Limited/no relevance to Kosovo

23 Indictment." How is one to take that, Mr. Nice? If you concede that it

24 has no relevance, why is it here?

25 MR. NICE: We put all the witnesses down so that you can see

Page 46707

1 proportionately the number that may have evidence directly relevant to

2 Kosovo. I've simply -- it's expressed as limited or no relevance to the

3 Kosovo indictment because it's always impossible to be sure that there's

4 absolutely no relevance in a history of this kind, but that's basically

5 designed to explain that these witnesses would seem to be those that don't

6 have relevance. We had to list them all; otherwise, it would have looked

7 even more selective.


9 MR. KAY: And I think that comment is in relation to another

10 witness, it's C-1220, who is hiding in a little box there, "Limited/no

11 relevance to the Kosovo Indictment," and Anastasijevic has got a

12 significant and greater entry. And what it says: "Similar to Croatia and

13 Bosnia and Herzegovina, the accused needed another conflict in Kosovo, to

14 stay in power, after opposition parties challenged his election fraud in

15 the winter 1996/97."

16 This was a journalist who had written about issues, and there was

17 a great controversy at the time, and I remember the accused saying, well,

18 you're allowing journalists here for the Prosecution and you've said to me

19 you don't care about their opinions and what they write, yet the

20 Prosecution are relying upon it.

21 Continuing through this list, Dulovic: "Accused pattern of using

22 criminals like Arkan in Croatia and then later in Kosovo." There's

23 nothing relevant in Dulovic's evidence at all to the Kosovo indictment,

24 and drawing comparisons and using his opinion from one context to another

25 simply doesn't focus the trial on the allegations being made against the

Page 46708

1 accused within the indictment and, again, can cause him to have to waste

2 his time, energy, and resources in trying to deal with this scatter-gun

3 approach.

4 C-020, the same issue is repeated in relation to paramilitaries

5 who worked in Croatia and later in Kosovo, and that's all it amounted to,

6 really, in C-020's evidence.

7 Well, I'll just deal with this page rather than the next 50 pages,

8 I'm sure the Trial Chamber will be pleased to hear.

9 Lazarevic, you may be able to have got a bit out of Lazarevic if

10 you really wrung hard in relation to Kosovo, but there's other evidence

11 that the Prosecution has relied upon to call which is really focused and

12 shaped in relation to the Kosovo indictment, and that's why he was called

13 in the Croatian section of the trial.

14 And Mustafa Candic, again, the issue of Greater Serbia is no

15 longer a runner, if I understand -- well, I hope I understand it right.

16 I've gone back to reread all the representations made on Greater Serbia,

17 and it's a bit like reading the fine print on an agreement when you buy a

18 washing machine. You really do have to check what's being said and what

19 you can or cannot do with the machine. But --

20 JUDGE ROBINSON: For Greater Serbia, we must now read an

21 "extended Serbia". That's what I understand is the Prosecution's case

22 now.

23 MR. KAY: And Kosovo was a part of Serbia anyway, so it still

24 doesn't make sense to me. But an extended Serbia that's not Greater

25 Serbia but could have stretched up to the same boundary, was, I think, the

Page 46709

1 way I ended up last time I looked at it yesterday.

2 Milan Babic, again, nothing to do with Kosovo.

3 And that's part of the problem that the Defence have to face is

4 the scale, scope, and, when you start really looking at the issues in the

5 case more so than you do at the Rule 98 stage when you're making the

6 submission of no case, which is a different issue, but you're looking at

7 the shape of the indictment and the evidence relied upon by the

8 Prosecutor, evidence called by the Defence, you really do feel that you

9 are wasting time and resources when you're having to chase matters that,

10 at the end of the day, come to nothing. But from our stage, we don't know

11 how the Trial Chamber's going to think; we don't know whether it will take

12 the same robust approach that we have and the accused does in relation to

13 the evidence.

14 Moving on from --

15 JUDGE ROBINSON: Mr. Kay, I'm reminded that it's time for the

16 break.

17 MR. KAY: I must apologise.

18 JUDGE ROBINSON: We'll adjourn for 20 minutes.

19 --- Recess taken at 12.23 p.m.

20 --- On resuming at 1.04 p.m.


22 MR. KAY: Thank you, Your Honour.

23 We have a schedule prepared of the Defence witnesses which

24 contains the transcript pages relating to Croatia and Bosnia, so what the

25 overlap between the indictments is, which I think may be of assistance to

Page 46710

1 the Trial Chamber. I know one might have an instinct about it, but it's

2 often quite a good idea to see what it is in factual figures terms, which

3 has been very, very helpfully prepared for us by one of our assistants.

4 The Court will there see the witnesses who the Defence called that

5 overlapped dealing with Croatian and Bosnian issues, the principally early

6 stage of the trial, but of course Mr. Seselj, who spent a greater period

7 of time than any of the other witnesses on crossover material, amounting

8 to approximately, in fact, about 10 per cent of the case. The others come

9 to about 6 per cent.

10 I hope that's of assistance to the Trial Chamber. I'm actually

11 drawing to the end of my submissions now.

12 In relation to the conduct of the Defence case, the Prosecution,

13 again, took an opportunity today to criticise the Defence. May I remind

14 the Trial Chamber that the Prosecution sought, by 29 different motions, to

15 change their witness list, have new witnesses added on, witnesses taken

16 off the list. And by the 4th of November, 2003, so in the stage of the

17 last four months of their case, the Trial Chamber had to issue an order

18 asking them to finalise the list of exhibits and witnesses, and to produce

19 a definitive exhibit list at that stage of the trial. In fact, the order

20 to produce the witness list was on the 13th of September, 2003, so still

21 then, no final list having been provided. And the reason is, and it's

22 exactly the same issue that the accused has to face and deal with, is that

23 witnesses may change, they may alter; issues in the case may develop;

24 particular strands become stronger, particular needs identified during the

25 conduct of the case itself, and thereby changes having to be made. This

Page 46711

1 attempt to rigidly apply standards by the Prosecutor upon the accused is

2 being dealt with by the Trial Chamber in the way that they had the same

3 latitude and recognition that the circumstances change. And we emphasise

4 that, that this is something that needs to be recognised and appreciated

5 as he is conducting his own Defence.

6 Those are all the matters that I submit to the Court upon

7 concerning manageability and health, and as we see it, our real concern,

8 that the accused is in a state and condition as well as within a time

9 frame to be able to present the most effective Defence case in relation to

10 the indictments as is possible.

11 Unless I can assist the Trial Chamber any further.

12 JUDGE ROBINSON: Thank you, Mr. Kay.

13 Mr. McCormack, if you have anything to say in light of the

14 submissions that have been made, the Chamber will hear you.

15 MR. McCORMACK: Your Honours, I would like to make one brief

16 counter-submission, if I can. I'm not sure whether it's ever happened in

17 the trial before that the two sides have been in complete agreement yet

18 differing so spectacularly on the reasons for their submissions. Whether

19 it's a novel situation or not, I would just like to make one brief

20 alternative submission in favour of severance of the Kosovo indictment in

21 the hope that it might assist the Chamber in your deliberations about

22 whether or not to sever the indictment.

23 It seems to me that the single most compelling argument in favour

24 of severance of the Kosovo indictment is the length of time of the trial

25 to date. The Appeals Chamber, in relation to the decision on assignment

Page 46712

1 of counsel of the 1st of November, 2004, in paragraph 19, the first

2 paragraph of the disposition, made the metaphor of maritime steerage in

3 the last sentence of that paragraph: "It is therefore left to the wise

4 discretion of the Trial Chamber to steer a careful course between allowing

5 Milosevic to exercise his fundamental right of self-representation and

6 safeguarding the Tribunal's basic interest in a reasonably expeditious

7 resolution of the cases before it."

8 Now, admittedly the Appeals Chamber was talking about the right of

9 self-representation, but I think in terms of this particular metaphor they

10 are using, they are talking generally about the accused's rights and

11 suggesting that it is for the Chamber to steer a course between, on one

12 hand, the rights of the accused and, on the other, the basic interest in a

13 reasonable, expeditious resolution of the case. Perhaps the default

14 steerage point is to the rights of the accused, and that's the way it

15 should be, but from time to time the Trial Chamber has attempted to

16 correct that steerage point and to work for the also important objective

17 of reasonable -- reasonably expeditious resolution of the case.

18 We've heard from the parties, in fact from all three - Mr. Nice,

19 Mr. Milosevic, and Mr. Kay in order - about different reasons for why the

20 trial has taken as long as it has. Perhaps there's truth in all of that.

21 Whatever the objective assessment of exactly why the trial has taken as

22 long as it has, the reality is that, in just over two months, we will all

23 endure the fourth anniversary of the start of the trial.

24 When the Prosecution first requested or moved the motion for

25 joinder of all three indictments on the 27th of November, 2001, four years

Page 46713

1 ago this week, they outlined some of the key arguments in favour of their

2 motion. One of those was judicial economy, the public interest of the --

3 in the efficient administration of international justice, and at the time,

4 back in November 2001, the Prosecution argued that that particular issue,

5 the public interest in the efficient administration of international

6 justice, demands one trial. Perhaps four years ago that was the case.

7 But I think it's arguable four years later that now the public interest in

8 the efficient administration of international justice calls for severance

9 of the Kosovo indictment.

10 I'd note the following observations: You refer -- the Chamber

11 refers in the scheduling order to the resolve expressed in July last year

12 to conclude the presentation of the Defence case by October 2005. We know

13 there are reasons why that hasn't happened, but that date has certainly

14 passed. It couldn't have been contemplated at the start of the trial that

15 we would lose 66 days throughout the Prosecution case because of

16 Mr. Milosevic's ill-health. It couldn't have been foreseen at the start

17 of the trial that we would be reduced to sitting three days per week

18 instead of five. There are all sorts of reasons why the case has taken

19 until now to reach the stage that it has.

20 THE INTERPRETER: Could the amicus please slow down for the

21 benefit of the interpreters, thank you.

22 JUDGE ROBINSON: The interpreters are asking you to speak more

23 slowly.

24 MR. McCORMACK: Sorry. I apologise to the interpreters.

25 I'd like to just return to paragraph 26 of the Appeals Chamber's

Page 46714

1 decision on the joinder of all three indictments, the decision of the 18th

2 of April, 2002, a paragraph that both Mr. Nice and Mr. Milosevic cited. I

3 think it's arguable in relation to the question of manageability that the

4 Appeals Chamber referred to in terms of recognising the discretion of the

5 Chamber. "... if with the benefit of hindsight it becomes apparent to the

6 Trial Chamber that the trial has developed in such a way as to --"

7 THE INTERPRETER: Counsel hasn't slowed down, really.

8 JUDGE ROBINSON: It's being said that you have not slowed down, by

9 the interpreter.

10 MR. McCORMACK: It could also be the accent.

11 The submission that I'm making is that unmanageability, I think

12 it's arguable the trial has become unmanageable in terms of an expeditious

13 resolution of the trial. I'm not suggesting that the trial can't be

14 managed. Clearly it is being managed. But I think in terms of the

15 objective that has been recognised a number of times throughout the trial,

16 the importance of expeditious resolution, there is a serious question

17 about whether, in fact, the trial, as currently constituted, with the

18 joinder of all three indictments, really is manageable.

19 So my submission to the Chamber is that, in considering the

20 question of whether or not to sever the Kosovo indictment from the Croatia

21 and Bosnia indictments, the Chamber has the opportunity to bring to

22 relatively quick conclusion a very important part of the case in the

23 Kosovo indictment. Important, as demonstrated, in fact, by the accused

24 himself with the concentration that he has given in the presentation of

25 his own Defence case to date on Kosovo and in relation to the allegations

Page 46715

1 made in the Kosovo indictment by the Prosecution.

2 I would like the Chamber to be able to take those arguments into

3 consideration, along with those that have been made by Mr. Kay, by

4 Mr. Milosevic, and by Mr. Nice before me arguing for a rejection of any

5 attempt to sever the Kosovo indictment.

6 JUDGE ROBINSON: Thank you, Mr. McCormack.

7 Mr. Nice.

8 MR. NICE: First, I have set out in our filing but mention now

9 that we adopt and therefore don't repeat our filing of July 2004 in

10 relation to this matter. All the points in that filing remain valid. The

11 Chamber may be interested, in light of one of the things the accused has

12 said, to note that, at paragraph 25, he forecast that any form of

13 severance might lead parties in the former Yugoslavia to interpret an

14 expression of choice as to having a hidden agenda where none exists.

15 Health being the core problem, as the Chamber has made plain to

16 all the parties, the accused nevertheless declines to deal with it on that

17 narrow basis, and, when invited to say how much more time he would use for

18 Kosovo, declined to tell you. Twenty-five per cent left of his allotted

19 time comes to some 90 hours. On average, very rough average, witnesses so

20 far have lasted six hours. Ninety hours would accommodate 15 such

21 witnesses of the accused. There is no reason to doubt that, if this case

22 is severed, the accused will press you to use all of the time originally

23 made available to him for the three indictments just for the one. And yet

24 that is the time which, according to your own ruling, he should have

25 concluded his evidence and, we would say, must indeed be counted as having

Page 46716

1 concluded his evidence so that the Chamber could bring in judgement

2 following the other stages of the trial.

3 The accused made an incorrect observation about time efficiency

4 having been raised only at half time, only at the end of the Prosecution's

5 case. Absolutely untrue. As long ago as the 11th of December, 2001, in

6 court, I was pressing for the maximum use of 92 bis, that then being the

7 only method of dispatch faster than oral testimony available to us. As

8 soon as the 11th of December, 2002, in a written filing, I was making the

9 first suggestion that -- I think the first suggestion, that we should be

10 using a system of examination-in-chief by written statement adopted by

11 witnesses. It found no favour with the Trial Chamber then or on

12 subsequent occasions, and it only became available following an Appeals

13 Chamber's ruling late in the Prosecution's case. Thereafter, we used it,

14 or attempted to use it, for every single witness.

15 I make that point for this reason: Not only is the accused wrong

16 in saying that time efficiency hadn't been in our contemplation or

17 anybody's contemplation from the beginning, because it has been, but it

18 follows that since 89(F) is now available generally, and we would never

19 oppose its use by this accused, he would have been able to fit in to his

20 allotted time, which matched ours for examination-in-chief, more witnesses

21 than we could have done because he has had the availability throughout

22 that time of this particular mechanism.

23 The accused made an observation about nobody in this institution

24 working five days a week. Let me tell him straight away that so far as

25 the Prosecution is concerned, he's absolutely right because the

Page 46717

1 Prosecution works pretty well, for four years, seven or, at a minimum, six

2 days a week. I make that to heap no praise on ourselves, but to underline

3 a point made, and the Chamber will find this in the Appeals decision on

4 assignment of Defence counsel, at paragraph 14 and footnote 42, a point

5 made by that Appeals Chamber, where it made this point, dealing with the

6 possibility of the schedule going down to one hearing day a week or even a

7 month, a point I've already referred to. The Chamber rejected assigned

8 counsel's "contention that Milosevic's inability to represent himself

9 necessarily rendered him unfit to stand trial at all," but went on to say

10 this: "Trial litigation is an extraordinarily demanding profession. It

11 cannot be that only those defendants capable of meeting its demands are

12 formally fit to stand trial."

13 And that is an important principle for us to have in mind as, and

14 to the extent necessary on this application, the Chamber finds itself --

15 not application, consideration, the Chamber finds itself considering the

16 way that the accused has elected to try and do everything himself and then

17 complains of the consequences for him of doing so.

18 I observe, finally, on this point of time that the accused now

19 wants some 200-odd witnesses, having had 40 so far; 240 is plainly a

20 number he could have fitted in to the time allocated to him had he used

21 the efficiency measures that we used and that were available to him.

22 Can I pick up a point, lest I forget it, from Mr. Kay, my learned

23 friend Mr. Kay, about the service of witness lists. We've had none from

24 the accused recently, apart from one that has not been formally filed and

25 is a courtesy copy. We don't know, really, what are the witnesses to

Page 46718

1 come. We responded throughout to the Chamber's directions, notifying them

2 of changes in priority of witnesses as time foreshortened. We were

3 entirely transparent about whom we initially wished to call, and as things

4 changed, we changed. The Chamber will, indeed, remember that one of the

5 ways in which we manifested the change is we said, This witness is no

6 longer one that we can call; it may, however, be one that the Chamber may

7 wish to call itself under Rule 98. And we gave details of it.

8 So that on that point, I end what I want to say at this stage on

9 that topic by saying there is clearly going to be no advantage in time by

10 severance. All that will happen is that whereas there could and should,

11 in our respectful submission, have been decisions on all three indictments

12 at the same time, there will be decisions only on one. And it is our

13 position that this case should continue, and swiftly, on all three

14 indictments.

15 When we come to medical issues, Your Honour, I think all the

16 reports are, in fact, confidential. They've been referred to. I want to

17 make reference to two reports very shortly. Must I go into private

18 session to deal with it properly? I think one passage has been referred

19 to already, and possibly the other one as well.

20 [Trial Chamber confers]

21 JUDGE ROBINSON: In relation to these matters, Mr. Nice, when the

22 issue first came up, I determined that we could hear evidence in relation

23 to medical reports of the accused in public session because they are in

24 the interests of the trial, and that was in accordance with the

25 jurisprudence of the Tribunal.

Page 46719

1 MR. NICE: Yes.

2 JUDGE ROBINSON: So to the extent necessary, we would lift the

3 confidentiality.

4 MR. NICE: Thank you very much.

5 Very briefly, then, Dr. van Dijkman's first report of the 18th of

6 November, 2005, sets out as its conclusion no grounds to change the

7 current course of action, "... and in my opinion, no reasons from the

8 cardiologic point of view to alter the current trial regime."

9 Then in his second report of the 23rd of November, 2005, dealing

10 -- or not dealing with the particular queries that the Court had raised

11 with him, and his conclusion, the passage that the accused referred to,

12 "... as in the past, I strongly advise provision for sufficient rest. On

13 the other hand, it seems to me that the six-week rest period is somewhat

14 too much."

15 A reading of that is that his advice in the past for rest is

16 indeed the advice that was reflected in the trial timetable that he said

17 in his shortly earlier -- a little earlier report did not need to change.

18 And I'm not aware really that there is any evidence coming from this

19 doctor going to show that there's a substantial period of time required

20 now for rest. To that extent, I find the report not entirely clear. But

21 it looks to me as if he's referring back to the time when he advised rest

22 generally, something that the Trial Chamber has, indeed, accommodated.

23 On the medical position as described by the accused, if he is

24 worse, and if his position is different, although at the moment there's no

25 report detailing that different position, at least from the doctors turned

Page 46720

1 to by the Trial Chamber, then his position is not as described by the

2 Appeal Court when it decided on the mode of procedure here with assigned

3 counsel. And that brings me to the proposition which you can find fleshed

4 out at paragraphs 28 to 32 of our filing, that, for whatever reason,

5 medical or other reason, for whatever reason, if any, that the Trial

6 Chamber thinks there are problems about the trial and thinks that it's not

7 going to be able to continue as it has done immediately in the past, it is

8 now the time to use the assigned counsel in a much more vigorous way and

9 to deal with any obstruction to that that might come either from the

10 accused or from others acting on his behalf with firmness, showing indeed

11 that this Trial Chamber has a settled intention to see this case through.

12 There was a quotation that the accused relied on in the joinder

13 application -- the joinder decision, at paragraph 27. I'll just find it.

14 He omitted the immediate following sentence which the Chamber will have in

15 mind, I suspect, namely this -- this is when he dealt with the

16 unrepresented accused needing rest from work. The Chamber went on to say:

17 "The responsibility for the accused's decision not to avail himself of a

18 defence counsel, however, cannot be shifted to the Tribunal."

19 Another principle vital to have in mind. He is responsible for

20 what is happening to him, he is responsible by attempting to undertake

21 what is beyond him for the medical condition that now creates a problem.

22 No one else is.

23 This trial - and I have to repeat this - was capable of being

24 dealt with in a very, very compact period of time, as the Prosecution's

25 evidence in chief showed. The time was only extended to the time the

Page 46721

1 accused repeatedly refers to by his extensive cross-examination. And of

2 course the Prosecution has been required to limit their cross-examination

3 time, and has, I think, almost certainly succeeded in doing so within the

4 parameters required of us. So the taking of time is the accused's

5 responsibility, and the fact that he's done it himself cannot be shifted

6 onto anybody else's shoulders for allocation of responsibility.

7 The accused drew to your attention the passage in the joinder

8 motion -- paragraph 26 of the joinder decision, I beg your pardon, a

9 well-known passage which says how, if the Prosecution fails to discharge

10 this responsibility that has been earlier explained by the Appeals

11 Chamber, the Trial Chamber has sufficient powers, and so on and so forth.

12 Well, of course, the position is without doubt the Prosecution did

13 discharge its responsibilities, and there can be no way of seeking to base

14 a decision to sever now on anything that the Prosecution has done. That

15 possibility, if it ever existed, would have had to have been dealt with

16 far earlier.

17 Further observations by the accused that I can deal with shortly:

18 He says there has been no link established. Why, then, if it's really the

19 case that that's his belief, why is he calling all this evidence? But if

20 that is his belief, then certainly his witness list can be shortened and

21 pruned of all those witnesses who serve non-forensic functions.

22 He refers to document torture. In a case involving a head of

23 state, or former head of state, with Rule 68 obligations on us, of course

24 there will be a large amount of material; it's inevitable. The Chamber

25 will want to remind itself, if it pays any attention to that observation,

Page 46722

1 how the Prosecution recognised the difficulties on the accused and on

2 Mr. Kay and others and set out the parameters by which it was searching

3 its collections of material right at the beginning, publishing reports on

4 what it was doing, and inviting comments if any of the parties, or even

5 the Bench, wished us to change the process by which we were performing our

6 otherwise irresistible duty. We had one representation on changing

7 parameters, I think to broaden it, by my learned friend Mr. Kay, but at no

8 time have we been asked to narrow those parameters, and accordingly the

9 material that comes comes as a result of the Statute and Rules of this

10 Tribunal. We have no choice in the matter.

11 Greater Serbia has been dealt with by two of those addressing Your

12 Honours this morning. The position on Greater Serbia has been dealt with

13 not so very long ago now at some length, some detail. Can I simply remind

14 the Chamber that on Greater Serbia, from the moment I was in this case, I

15 was extremely careful with my words. If you look at it, what's said in

16 the -- in this Chamber's hearing on joinder, I expressed myself

17 cautiously. And the Appeals Chamber, as revealed in its decision of the

18 18th of April, 2002, got right the Prosecution's position, not

19 surprisingly. It's true that at paragraph 8 it made a reference to a

20 "Greater Serbia" but thereafter, and at paragraphs 20 and 21, it set out

21 the Prosecution's case with clarity, saying this: "... the purpose behind

22 the events in each of the three areas for which the accused is alleged to

23 be criminally responsible was the forcible removal of the majority of the

24 non-Serb civilian population from the areas which the Serb authorities

25 wished to establish, or to maintain as Serbian-controlled areas by the

Page 46723

1 commission of the crimes charged. The fact that some events occurred

2 within a province of Serbia and others within neighbouring states does not

3 alter the fact that, in each case, the accused is alleged to have acted in

4 order to establish or maintain Serbian control over areas which were or

5 were once part of the former Yugoslavia."

6 In the second paragraph, saying: "A joint criminal enterprise to

7 remove forcibly the majority of the non-Serb population from areas which

8 the Serb authorities wished to establish or to maintain as

9 Serbian-controlled areas by the commission of the crimes charged remains

10 the same transaction notwithstanding the fact that it is put into effect

11 from time to time and over a long period of time as required."

12 My words in questioning witnesses have always followed that same

13 line, advanced from before this trial opened. They were expressed by me

14 cautiously in the opening remarks where I think I acknowledged that the

15 words "Greater Serbia" never fell from the accused's lips, or to our

16 knowledge.

17 The plan identified and the subject of evidence is what binds

18 these three indictments together, and it is the respectful submission of

19 this Prosecution that it will be doing a grave injustice not to allow them

20 to be brought to a conclusion together because of that indissoluble

21 connection.

22 My learned friend Mr. Kay, in dealing with Kosovo somewhat maybe

23 dismissively, I don't mean it in an offensive way, is simply failing to

24 record the extensive evidence now before the Court going to show the way

25 that Kosovo is the beginning, and in the middle and at the end of this 10-

Page 46724

1 to 20-year period. The accused's reaction to it can be considered in

2 various ways, but just to take some headlines, his position at The Hague,

3 where matters were dealt with, his position at Dayton where Neumann said

4 in terms to you as a witness that it was -- he actually said it to the

5 accused in terms, that it was he who refused to allow Kosovo to be placed

6 on the agenda at Dayton. The whole history of, say, the Bosnian Serbs in

7 1994 with their petition. We heard about this through Kosta Bulatovic,

8 complaining about the way the Serbs in Republika Srpska were being dealt

9 with and demanding a response from the accused in respect of Kosovo as a

10 result, or leading, say, the Prosecution to such specific events as the

11 1995 police trial and the repression of Kosovo Albanians that followed

12 that. And of course we very recently had a typical piece of evidence

13 showing how it was that there was repression, even of, what is it,

14 Drenica, that beautiful town, where fear must guard the house, before

15 there was any need for the excessive police force. Kosovo features as the

16 explanation for the rise to power of this accused, for his retention of

17 power, and then at the end, for the commission of offences. And it is

18 impossible, realistically and properly, those, I venture to suggest,

19 familiar with the overall history and who have given evidence to you, show

20 it's impossible to extract the one from the other.

21 Annex B to our filing, I, of course, take complete responsibility

22 for documents I file, and Mr. Kay suggested I might not have had a hand in

23 it. I had a hand in instructing that it be prepared, how it be prepared,

24 and, to the extent possible with the time allowed, reviewing it. So I

25 take responsibility for it and it falls nowhere else.

Page 46725

1 If one -- it has been prepared in something of a hurry. I think I

2 made that point clear at the beginning. So that, for example, if you look

3 at the page my learned friend was looking at, page 1, C-037, and Babic, of

4 course the same person, but in each case you have real evidence here that

5 shows the connections and it doesn't do to try and put it on one side.

6 Where you've got Serbs -- Babic said it all started in Kosovo. That's

7 what led to the problems in Knin, and he says that the Serbs fleeing

8 Croatia, being driven or forced to go or invited to go to Kosovo. You

9 make Mesic, who in 1990, raises concerns about the way Serbia handled the

10 Kosovo incident, being told by the accused "when you give them a good slap

11 on the face, then they'll be obedient. That's how we solved the point."

12 Taking another one, Anastasijevic. And trying to characterise

13 witnesses now is not appropriate. He gave evidence, he was not stopped

14 giving evidence; his evidence was admissible. And he said that the

15 accused -- this was his judgement from evidence coming to him and material

16 coming to him, was that the accused needed another conflict to stay in

17 power, and that conflict was Kosovo. But more importantly, or more

18 factually, maybe, if the opinion doesn't appeal to you because it's an

19 opinion, the accused had a military line, jumping over formal chains of

20 command, something that appeared elsewhere and, of course, in Kosovo.

21 And likewise as to Arkan in Croatia and later in Kosovo. Of

22 course the pattern of this accused's familiarity with or even direction

23 over paramilitaries, such as the Red Berets or Arkan, is of extreme

24 significance wherever it occurs, and it is, in our respectful submission,

25 unrealistic to try and forget or set aside the evidence of his control of

Page 46726

1 these things in Croatia and Bosnia. And it turns up regularly in the

2 witnesses you'll see when looking at the Kosovo indictment.

3 JUDGE ROBINSON: Mr. Nice, the Chamber will have to go through

4 your Annex B very carefully --

5 MR. NICE: Yes.

6 JUDGE ROBINSON: -- because it does appear to be an exaggeration of

7 the connection.

8 MR. NICE: I'm sorry that Your Honour should be inclined to

9 describe a document prepared to assist you in these circumstances an

10 exaggeration, and on behalf of those who prepared it, I absolutely reject

11 that observation and would respectfully remind you of how it was that the

12 Appeals Chamber made it clear on the joinder decision that - and I repeat

13 it to you, although I've mentioned it once already - that in their

14 judgement at that time, and it is not changed -- there's been no reason to

15 change since: "... a substantial body of evidence relevant to the issue

16 of the acts and conduct of the accused itself in the Croatia and Bosnia

17 trial is also relevant to that issue in the Kosovo trial." And it then

18 went on to say: "The prosecution would therefore be entitled to prove in

19 the Kosovo trial what is in effect its case in the Croatia and Bosnia

20 trial. To have to do so twice would be a grave waste of the scarce

21 resources ..." I realise that point doesn't apply as the Chamber is only

22 considering severance with the second trial to be heard by the same

23 Chamber.

24 I'm nearly finished.

25 I invite the Chamber to ask itself this question of the accused,

Page 46727

1 or not to ask -- to ask itself this question of how the accused will

2 behave: If there is severance, does it expect there to be any difference

3 in the approach of this accused to this Chamber? He has not asked you for

4 anything. He has indeed, at one stage - and I wrote his words down -

5 demanded from you something. The same way as he demanded an adjournment

6 the other day, he demands from you today a period of rest. Is there any

7 reason to believe if, in the same time he has to deal only with Kosovo as

8 with all three indictments, that he will return anything for that

9 generosity in his recognition of this Court? Of course not. All that

10 will happen is that a trial of this accused for genocide may be left

11 hanging where otherwise it could be the subject of a verdict.

12 As to my learned friend Mr. McCormack's observations, judicial

13 economy, I think I have already dealt with. He doesn't recognise, in his

14 arguments, that the only change and the only thing that has made this

15 trial, as he would seek to characterise it, as unmanageable, is the

16 accused's health, the accused's response to it, the accused's

17 determination either to let it have its effect on the conduct of this

18 trial and the control of this trial rather than to do that which any

19 sensible and rational person would do, which would be to use the forces of

20 lawyers available to him.

21 And on manageability, my learned friend also referred to the same

22 passage from the Appeals Chamber's judgement. Manageability is not

23 something that can be -- I think I said this already. Manageability is

24 relevant only in this case because it is the accused who needs to be

25 managed. Please look at our proposals for how the assigned counsel could

Page 46728

1 be used. It is an inversion of reality to think that it is the trial that

2 has become unmanageable. The question here is who manages the trial and

3 whether the accused is managing himself properly or needs to be managed

4 further.

5 Your Honours, I think that concludes my answer, subject only to

6 this observation that I must make, although I think it's in our filing:

7 It may be that the objective of the accused in his conduct of the case is

8 to achieve a postponement of judgement. The Chamber may think that by

9 severance it will be seeking to resist that objective of the accused. As

10 I hope I've revealed, there will, in fact, be no time saving, there will

11 be no resistance of those objectives of his, and the high probabilities

12 are that what is, of course, difficult and complex when it's a single

13 trial, with the opportunities open to the accused if it becomes two

14 trials, will become even worse. And we press the Chamber to say that it

15 is quite inappropriate for these indictments now to be severed.

16 Unless I can help you further.

17 JUDGE ROBINSON: Thank you, Mr. Nice.

18 [Trial Chamber confers]

19 JUDGE ROBINSON: There are several issues arising from the matters

20 that we have considered today. I wish to note --

21 Mr. Milosevic.

22 THE ACCUSED: [Interpretation] Will I get an opportunity to say a

23 few words with regard to these questions that Mr. Nice raised?

24 JUDGE ROBINSON: Well, you've already spoken, and we have heard

25 you. Do you have something that could be said very briefly?

Page 46729

1 THE ACCUSED: [Interpretation] We heard him before me and now he

2 spoke, well, for a considerable amount of time yet again.

3 JUDGE ROBINSON: That was a response to you. That's traditional

4 in these matters. If you have something to say, I'll hear it, briefly.

5 THE ACCUSED: [Interpretation] Before I speak in connection with

6 what Mr. Nice said, and he repeated lots of nonsense that we have occasion

7 to hear from him here, I just wish to provide a piece of information to

8 Mr. Bonomy because he asked me about this.

9 So, Mr. Bonomy, in relation to the financing of this illegal

10 Tribunal of yours, according to your own Article 32 of your own Statute,

11 the expenses are covered from the regular budget of the UN. However, they

12 arrive from very murky sources; the Soros Foundation, various foundations

13 from the Islamic countries, with NATO being the major financier.

14 On the 17th of May, 1999, Jamie Shea, the spokesperson of NATO,

15 said: "NATO countries are those [In English] ... the finest to set up

16 Tribunal. We are amongst the majority financiers. We want to see war

17 criminals brought to justice. I'm certain that when Justice Arbour goes

18 to Kosovo and looks at the facts, she will be indicting people of

19 Yugoslavian nationality, and I don't anticipate any others at this stage."

20 [Interpretation] So the main financier is NATO, and the others are

21 the Soros Foundation and foundations from Islamic countries, and so on and

22 so forth. So that is perfectly clear.

23 And on page 35550 from these proceedings here, I'm just going to

24 quote Mr. Nice, who talks about a witness, and says: "[In English] If we

25 go to page 2 of 11, halfway down the page we can see that this is by no

Page 46730

1 means written by people who are friends of the ICTY or any Western

2 conspiracy, because the author describes NATO's intervention as the recent

3 'brutal, illegal, and illegitimate intervention of the NATO forces

4 against the country.'

5 "So you would accept that this is a Serb without any particular

6 leaning towards the forces and powers that established this Tribunal ..."

7 et cetera.

8 [Interpretation] So, Mr. Bonomy, for Mr. Nice, obviously there is

9 no dilemma, the kind of dilemma you have. So you can clarify it with him,

10 what he meant to say then. Since you say that you don't know about this,

11 I hereby inform you of this. And I believe that, as an honourable man,

12 once you've found out, and I can give you further evidence, you can leave

13 this story that you got into without realising what you got yourself into.

14 And now as for Mr. Nice and what he said, he said the most

15 senseless thing possible about a Greater Serbia --

16 JUDGE BONOMY: I have to say I haven't the remotest idea what

17 you're talking about now in relation to this. In fact, the more I read

18 it, the less comprehensible it becomes.

19 JUDGE ROBINSON: Mr. Milosevic, I have to say to you that you are

20 not at large here. I am giving you a chance to comment on some issues if

21 you consider them to be issues of importance. Although the Prosecutor did

22 not file a motion, I asked the Prosecutor to begin. So in accordance with

23 the tradition in adversarial systems, I allowed him to reply. In these

24 circumstances, I don't see you as having any right to reply, but you

25 obviously have an interest, a fundamental interest, in the outcome of

Page 46731

1 these matters, and it is for that reason that I'm allowing you to say

2 something at this stage. But please don't abuse it.

3 Proceed, bearing in mind that we are now almost seven minutes to

4 two.

5 THE ACCUSED: [Interpretation] As for what Mr. Nice said that

6 pertains to one of the key issues, as for Greater Serbia, he explained

7 just now that I did not utter that word, but I assume that he's trying to

8 say that there is something that was done. I also think that deeds have

9 to be looked into first and foremost, and the deed is the following,

10 Mr. Robinson and gentlemen: In this entire period, from 1991 onwards, no

11 one was expelled from Serbia on account of ethnic affiliation. There was

12 no discrimination whatsoever. No one from Serbia and no one from the

13 Federal Republic of Yugoslavia was discriminated against on account of his

14 religion, race, or beliefs. That is a fact, gentlemen. And at that time

15 that you are interested in, I was president of Serbia and president of

16 Yugoslavia, and no one was ever expelled from there. That is a fact.

17 Now, what Mr. Nice is trying to ascribe to me --

18 JUDGE ROBINSON: [B/C/S spoken on English channel] I want to make

19 it clear I'm not interested in this. I'm interested in the question of

20 severance. I am not clear.

21 We are back to English now. Did you hear what I said? I said I'm

22 not interested in a general discussion on Greater Serbia. If you have

23 something to say about Greater Serbia because it impacts on the question

24 of severance, then I'll allow you to say it. But don't regurgitate the

25 arguments which we've heard ad nauseam about this issue.

Page 46732

1 THE ACCUSED: [Interpretation] Mr. Robinson, the question of time

2 is being raised here, and Mr. Nice devoted due attention to that in the

3 speech he just made. According to Mr. Nice, the best thing would be not

4 to have anyone testify in public but to do all of it in writing, and

5 Mr. Nice is explaining to you how they abided by that, that they were very

6 economical, very expeditious. And in spite of all these heaps of paper

7 and all these 92 bis and 89(F) testimonies, he used up 300 days. So

8 please do not take into account these things that are in contravention of

9 pure mathematics.

10 I was not saying that no one worked for five days. I was just

11 trying to say that no one sat for five days. Of course I work for more

12 than five days, although we sit here only for three days. And after all,

13 Dr. van Dijkman wrote that three days is what I do here, and as for the

14 rest of my time, I have to prepare myself for here, including the proofing

15 of witnesses. And that is what he knows full well and that is what you

16 know full well, so that is an argument that cannot be used at all.

17 Mr. Nice's advice is that I collect written statements from

18 witnesses. The basic aim of public testimony is to hear the truth,

19 because if we were to stop at what Mr. Nice wrote, together with his

20 associates, that would be a monstrous lie. So in order to have the truth

21 heard, there is a great interest involved, a historical interest, I should

22 say, of my people, of my country. But not only of my people and of my

23 country, of mankind in general and of the times in general. Let us hear

24 what the truth is, and let the actual perpetrators of what happened in

25 Yugoslavia actually be exposed, although you said yourself, Mr. Robinson,

Page 46733

1 at one point in time, that you are not in charge of trying NATO for what

2 they did, although you know what they did and you know that the basic

3 tenet of any law in the world is that the law that does not apply to one

4 and all is not law at all.

5 Therefore, I ask for adequate time to be given to me.

6 JUDGE BONOMY: I, again, have to say I don't understand this

7 submission. Because something is in writing does not mean it is not in

8 public. Everything in writing here, submitted in writing that's not

9 confidential, becomes public. And at this stage, it's not, as you would

10 see it, lies that we're suggesting ought to be presented in writing, it's

11 what you claim to be the truth, because it is you that would be presenting

12 the written material, and you turn the argument on its head and undermine

13 your whole case. It is the way forward if you want to submit material in

14 addition to the period that's been allocated to you to complete the case.

15 THE ACCUSED: [Interpretation] I think, Mr. Bonomy, that you're the

16 one who's turned things upside down.

17 JUDGE ROBINSON: Are you finished now, Mr. Milosevic?

18 THE ACCUSED: [Interpretation] Mr. Nice presented a great many

19 other things here too, that this will show how I systematically did not

20 observe any laws, which is a lie. He has not presented a shred of

21 evidence to that effect. That my role with the paramilitaries will be

22 shown. My only role with the paramilitaries was to have them arrested.

23 There was no other evidence to that effect. So he is manipulating here --

24 JUDGE ROBINSON: Mr. Milosevic, all of this -- this is irrelevant

25 to the issue. If you do not have anything more to say on the question of

Page 46734

1 severance, we'll stop now. We are 15 minutes beyond --

2 THE ACCUSED: [Interpretation] I'm talking about what he talked

3 about.

4 JUDGE ROBINSON: And you don't have a right to do that. I

5 explained to you the circumstances in which I have allowed you to speak,

6 and I explained why Mr. Nice had a right to reply, because he started. Do

7 you have anything that is pertinent to say, anything more? I'm not

8 interested in general issues. If you don't, I'm going to adjourn.

9 THE ACCUSED: [Interpretation] I have presented what I consider to

10 be relevant.

11 JUDGE ROBINSON: Thank you, Mr. Milosevic.

12 I want to say that many issues arise for consideration and

13 decision by the Trial Chamber in relation to this matter. We still have

14 outstanding a report which we expect today from Dr. Dalal, and also there

15 is to be an examination and a report by a neuroradiologist. The Chamber

16 would like to have all these reports before it before it makes a decision

17 on these matters. So we'll give a decision once we have all the reports

18 before us.

19 MR. NICE: I was going to ask the Court whether there was any

20 possibility of continuing with evidence, seeing that the accused has come

21 and seeing what is said about him by Dr. van Dijkman. I don't know if the

22 Chamber is able to assist us at all in relation to that. In our filing,

23 of course, we suggest that the next witness, Sel, should be taken

24 immediately.

25 JUDGE ROBINSON: Yes. We are expecting to continue tomorrow at

Page 46735

1 9 a.m. I just want to confirm, Mr. Milosevic, your witness tomorrow will

2 be -- is that Mr. Sel?

3 THE ACCUSED: [Interpretation] The next witness is Janos Sel.

4 JUDGE ROBINSON: Thank you. We are adjourned until 9 a.m.

5 tomorrow.

6 --- Whereupon the hearing adjourned at 2.03 p.m.,

7 to be reconvened on Wednesday, the 30th day of

8 November, 2005, at 9.00 a.m.