Tribunal Criminal Tribunal for the Former Yugoslavia

Page 3279

1 Thursday, 14 March 2002

2 [Open session]

3 --- Upon commencing at 9.03 a.m.

4 [The accused entered court]

5 JUDGE AGIUS: Mr. Brdjanin, good morning to you. Can you hear me

6 in a language that you can understand?

7 THE ACCUSED BRDJANIN: [Interpretation] Good morning, Your Honour.

8 Yes, I can.

9 JUDGE AGIUS: I thank you. You may sit down.

10 General Talic, good morning to you. Can you hear me in a language

11 that you can understand?

12 THE ACCUSED TALIC: [Interpretation] Good morning, Your Honour.

13 Yes, I can.

14 JUDGE AGIUS: Thank you.

15 Madam Registrar, could you please call the case.

16 THE REGISTRAR: Yes, Your Honour. This is the case number.

17 IT-99-36-T, the Prosecutor versus Momir Talic and Radoslav Brdjanin.

18 JUDGE AGIUS: Yes appearances for the Prosecution.

19 MS. KORNER: Joanna Korner and Andrew Cayley, still hiding, and

20 Denise Gustin, case manager.

21 JUDGE AGIUS: Good morning, to you, appearances for Mr. Brdjanin.

22 MR. ACKERMAN: Good morning, Your Honours. I'm John Ackerman, I'm

23 with Tania Radosavljevic.

24 JUDGE AGIUS: Good morning, Mr. Ackerman. Appearances for

25 General Talic.

Page 3280

1 MR. DE ROUX: [Interpretation] Good mortgage, Your Honour, Xavier

2 de Roux with Natasha Fauveau and Fabien Masson.

3 JUDGE AGIUS: Good morning to you. So any preliminaries

4 MS. KORNER: Your Honour, there are a couple, what we tend to call

5 housekeeping matters. The first is this, and that relates to the

6 witness. Yesterday we had a look at some of the videos again in light of

7 the testimony he gave, and there is -- we mentioned one video in his extra

8 statement that we were going to ask him to look at. There's one other

9 that I would like him to look at. We have the transcript here, and we'll

10 hand them out today so that everybody knows what he's going to be looking

11 at.

12 Your Honour, I don't -- may I say, regrettably I don't think we're

13 going to finish him in-chief today because I've still got to go through

14 these 50-odd documents.

15 JUDGE AGIUS: [Microphone not activated]

16 MS. KORNER: Yes. There's still a lot to deal with,

17 unfortunately.

18 Your Honour, the second matter relates to the question of Prijedor

19 witnesses. Your Honour, we will be filing on Friday the deposition motion

20 ordered by Judge Schomburg for both Trial Chambers in the Stakic case. In

21 the course of trying to -- with a great deal of difficulty -- sort this

22 out, we have reviewed all the witnesses in relation to the allegations in

23 the indictment. We have come to the conclusion that a couple of witness

24 statements which were taken later are preferable to some of the witnesses

25 we have listed. What we want to do - and I'm raising it now, Your

Page 3281

1 Honour. I can give details if necessary later - is we will disclose the

2 witness statements of the witnesses we wish to call and also notify Your

3 Honours and the Defence of the ones that we wish to withdraw. It's

4 effectively a replacement of witnesses. We're clearly so far away from

5 Prijedor now, in a sense, we'd have done better had we realised how long

6 Banja Luka was going to take to stick with our original order and have

7 Prijedor as the next municipality. But we've already made the decision

8 to --

9 JUDGE AGIUS: May I ask you what you are saying now, in other

10 words, change in the number of witnesses, would apply also in the Stakic

11 case?

12 MS. KORNER: Yes.

13 JUDGE AGIUS: So it's the same --

14 MS. KORNER: Well, this is -- 90 per cent of the difficulty has

15 been deciding effectively which witnesses are common to both cases.

16 JUDGE AGIUS: Because I would suppose there are some witnesses

17 that are definitely common to both cases, others that are more relevant

18 for Stakic case -- for the Stakic case than to this.

19 MS. KORNER: Yes.

20 JUDGE AGIUS: I would imagine.

21 MS. KORNER: That's correct, Your Honour. But it's been very

22 difficult to decide --

23 JUDGE AGIUS: I can imagine.

24 MS. KORNER: -- which is which. And it's in the course of that

25 review that we realised that effectively some of the witness statements

Page 3282

1 which we had disclosed and intended to call were perhaps better replaced

2 by these.

3 But Your Honour, I'm raising it now so that my learned friends can

4 hear what I say. And if there's any objection to this, I'm not expecting

5 an answer straight away -- then we won't bother. But it seems to us that

6 this is a perhaps more effective way of dealing with it.

7 I should add, these are -- they're crime base witnesses. None of

8 the witnesses will directly implicate, as I recall, either of these two

9 accused.

10 So Your Honour, that is that which I'm raising for consideration

11 this morning.

12 And lastly, Your Honour, can I confirm from what you said

13 yesterday that we will not be sitting the week that starts the 29th of

14 April, which includes the UN holiday of the 30th of April. I think that

15 was certainly the week that we all agreed would be vacant.

16 JUDGE AGIUS: Yes, you are right.

17 MS. KORNER: In that event, can I tell Your Honours that although

18 it will be probably interrupting Sanski Most slightly, we intend to call

19 the witnesses from the humanitarian organisation. We've had difficulty

20 again in arranging them -- in the week beginning the 5th of May. In fact,

21 the week straight after the gap. I think it's the 5th of May, 6th of May.

22 JUDGE AGIUS: Keep in mind -- 29th, 30th, yes. Okay, yes.

23 MS. KORNER: It's the following Monday.

24 JUDGE AGIUS: Yes, yes, yes, yes. Okay. We still have to sort

25 out the 92 bis procedure that we are going to follow.

Page 3283

1 MS. KORNER: Yes. I'm waiting, as I said to Your Honours, for --

2 Mr. Ackerman was going to come forward with some proposal for us to

3 consider. And then we can --

4 JUDGE AGIUS: And that is why I'm raising it now, because that is

5 what you told me last time.

6 MS. KORNER: Yes.

7 JUDGE AGIUS: If we could agree on that now, you would probably be

8 put in a better position to plan ahead.

9 MS. KORNER: Your Honour, I think it would probably have to be

10 after the weekend.

11 JUDGE AGIUS: No problem.

12 MS. KORNER: If Mr. Ackerman --

13 JUDGE AGIUS: But you do realise that it makes a big difference if

14 one has to stay reading the statements here in -- during an open session

15 or during a closed session, depending on the documents, and -- rather than

16 taking them as read --

17 MS. KORNER: Yes.

18 JUDGE AGIUS: So this is why I'm telling you, please do come to a

19 conclusion amongst yourself on that if possible because it would

20 facilitate matters, make life easier for everyone, and also put you in a

21 better position to plan.

22 MS. KORNER: Your Honour, that's right. Sorry, I thought Your

23 Honour was referring to the treatment of 92, because of course --

24 JUDGE AGIUS: No. That is another matter I'm expecting feedback

25 from you. But from this other matter that we had mentioned at -- during

Page 3284

1 an earlier sitting, we had not concluded anything about it. And you were

2 still -- I'm still expecting an answer on what I think should be obvious,

3 actually, what --

4 MS. KORNER: Yes. Well, Your Honour, we can certainly -- we can

5 discuss that very simple matter during the break.

6 JUDGE AGIUS: Yes, please do. Please do.

7 Now, Mr. Ackerman.

8 MR. ACKERMAN: I'll see if I can remember all three things that I

9 need to respond to.

10 First of all, the issue of substitution of two witnesses for two

11 other witnesses in the --

12 MS. KORNER: Three. I'm sorry. Three witnesses.

13 MR. ACKERMAN: You're going to substitute two for three or three

14 for two or?

15 MS. KORNER: Three for three.

16 MR. ACKERMAN: Three for three. I have absolutely no objection to

17 that. I can't imagine why that would be any kind of a problem at all. So

18 I can say right now I do not object to that.

19 The second thing that was mentioned was the witnesses from the

20 humanitarian organisation. I have already made a filing which is now in

21 abeyance. I am working on a second motion with a little bit different

22 tact, that will probably be filed by Monday, also with regard to this

23 issue. And the purpose in my bringing it to your attention now is I take

24 and will be taking in a more formal way, the position that it is totally

25 inappropriate for the Prosecution to be permitted to use witnesses and

Page 3285

1 documents from an organisation that refuses to allow access to other

2 documents that it has in its possession to the Defence. In other words,

3 the situation the Tribunal is faced with is that an organisation or the

4 Prosecutor is permitted to pick and choose among a large group of

5 documents as to which ones are most inculpatory of the accused without the

6 Defence having an opportunity to look among those documents and pick which

7 ones might be most exculpatory to the accused. It appears -- but we still

8 are waiting -- awaiting an answer that the organisation involved will be

9 taking an immunity position with regard to those documents. There are

10 questions about how -- which I haven't even asked yet -- about how those

11 documents came into the possession of the Prosecutor, how many documents

12 came into the possession of the Prosecutor, the conditions under which I

13 they came into possession of the Prosecutor, whether the Prosecutor had an

14 opportunity to actually go through all of the relevant documents from that

15 place in time. And those are all open questions and all will be raised in

16 a motions that is nearly completed. I was working on it again this

17 morning, and I think it would be filed perhaps as early as Monday. But

18 all this is to say that it is my position that these witnesses should not

19 be called until time has been -- there's been enough time to sort this out

20 and see what the position of the organisation is with regard to Defence

21 access to materials and what the position of the Prosecutor is with regard

22 to additional materials from this organisation that might be in the

23 Prosecutor's possession. And I don't expect the Prosecutor to respond to

24 either of those things now. This is just a sort of a heads-up for the

25 Trial Chamber that this is what is in the works in coming from me with

Page 3286

1 regard to these matters.

2 The final thing that was asked was with regard to 92 bis. It

3 makes no sense to me that there be an actual reading of 92 bis materials

4 in front of the Trial Chamber. As I said the other day, I'm convinced

5 Your Honours are perfectly capable of reading. And so with regard to 92

6 bis material, they simply are submitted to you and you read them at your

7 leisure. I don't think anything more formal than that needs to happen.

8 JUDGE AGIUS: Yes, Maitre de Roux. Do you want to say something?

9 MR. DE ROUX: [Interpretation] Mr. President, I wanted to say two

10 things. First of all, regarding the hearing of witnesses. I have already

11 heard the Prosecution say that the witnesses that will be called will not

12 incriminate in any way the accused, that they will testify about general

13 crimes. I think that we are here judging the accused and that relevant

14 witnesses are those who have something to say about their criminal

15 responsibility and not general witnesses, especially those taken from

16 another case. And we don't know whether they are able to charge the

17 accused in another case which are not joined with ours.

18 Regarding this joint hearing of common witnesses, there is

19 something extremely unacceptable for the Defence because we don't really

20 know where the Prosecution is heading with those witnesses who are not

21 going to testify about particular crimes that the accused here can be

22 charged with but who will be testifying about general crimes committed

23 during these events and during this war. This does not seem to be

24 satisfactory for the Defence of General Talic.

25 The second point I would like to comment on - and my comments will

Page 3287

1 be fully in the same -- along the same lines as those of Mr. Ackerman - it

2 is -- it has to do with the testimony of representatives of a humanitarian

3 organisation. We have seen all the extraordinary precautions required by

4 this organisation to exceptionally allow this or that of its members to

5 testify in great secrecy, in great anonymity. Mr. Ackerman is right in

6 saying that these testimonies are all the more surprising, as we as the

7 Defence are unable to examine that humanitarian organisation. And if we

8 do so, it will resort to its own right to confidentiality. And when we

9 require access to the totality of the considerable amount of documents of

10 that organisation on the events that we are debating here -- and of course

11 we will not have access to the totality of those documents but simply to

12 those selected by the Prosecution. All this, Mr. President, does not seem

13 to me to be appropriate. Either there is a source of information which is

14 a source for everyone, for the Prosecution and for the Defence, and we

15 must have an open ability to approach the witnesses, both by the

16 Prosecution and the Defence, or an international organisation decides to

17 cooperate with this Tribunal in violation of its obligation of neutrality.

18 And then another question arises which is a much more serious one,

19 and that is why I think either the humanitarian organisation renounces its

20 secrecy, its confidentiality, and then we will discuss with them its

21 testimony and the documents collected during those events, or we do

22 something in secrecy, choosing such and such an element, in which case the

23 Defence, in any event that of General Talic, will consider that we do no

24 longer have an equality of arms. Thank you, Mr. President.

25 JUDGE AGIUS: Yes, Ms. Korner.

Page 3288

1 MS. KORNER: Your Honour, first can I deal with the point made by

2 Mr. De Roux that it's not testimony against the accused that we're seeking

3 to adduce. Of course it's testimony against the accused in the sense that

4 it's part of the crimes that we say they are responsible for. What I

5 actually said was it doesn't directly implicate the accused in the sense

6 that these witnesses will come and say, "I saw General Talic do this."

7 JUDGE AGIUS: It's a crime base -- crime base witnesses.

8 MS. KORNER: Exactly. Just to make that clear. Otherwise we

9 wouldn't be seeking to adduce it.

10 JUDGE AGIUS: I was actually going to ask Maitre de Roux whether

11 he still has, as I do, in his library the Pothier and the basics of

12 criminal law as we know it in the continental system. We're talking about

13 the actus reus here, I mean, the same actus reus that one talks about in

14 the common law jurisdiction as well. So -- anyway, let's not waste much

15 time on this matter, because it's -- I don't think it deserves more than

16 that.

17 MS. KORNER: Your Honour, on the second matter, these arguments

18 have been raised before when the motion for the protective measures was

19 granted. But Your Honour, what I -- if there's going to be a reopening of

20 this argument- and I'm not sure it's necessary for Mr. Ackerman to serve a

21 written motion- and I would suggest that at some stage, possibly

22 immediately after the Easter break, on the Wednesday, Your Honour hears

23 arguments on this matter and makes a ruling.

24 JUDGE AGIUS: Yes. Ms. Korner, the position is as follows:

25 Number one: There was a motion from the Defence team of

Page 3289

1 General Talic which has been decided. Basically that motion has been

2 decided the way it has been decided because the basis of it, it was very

3 obvious that no attempt had been made to approach the humanitarian

4 organisation to at least establish what their position would be if they

5 are asked -- if they were asked to furnish information. Which is exactly

6 the opposite of what happened in the case of Mr. Ackerman.

7 Now, Mr. Ackerman's -- or Mr. Brdjanin's motion per Mr. Ackerman

8 is in abeyance precisely because we have a letter from the humanitarian

9 organisation saying what it says. And I don't need to reveal here what it

10 says for obvious reasons. The motion is in abeyance. And that

11 notwithstanding, I don't think we should say anything about it here.

12 I have taken note of the fact that Mr. Ackerman intends filing a

13 second motion on the subject, and this is good to know because I would

14 direct your attention now to what is provided in Rule 70, particularly in

15 paragraph C of Rule 70, read in conjunction with para B, because I

16 wouldn't like to see any further motions on the matter which do not go to

17 the crux of the problem. More than that, I don't think we are prepared to

18 say or should say at this present moment.

19 JUDGE AGIUS: Yes, Mr. Ackerman.

20 MR. ACKERMAN: The title of the motion, Your Honour, which I'm

21 holding in my hand which is not completed -- it's just in rough draft

22 form --

23 MS. KORNER: Can I -- I've been sent various messages by concerned

24 members or a member of my team that of course we're in open session.

25 JUDGE AGIUS: Yes.

Page 3290

1 MS. KORNER: So I hope --

2 MR. ACKERMAN: I think we'll all understand that we're saying

3 humanitarian organisation throughout.

4 JUDGE AGIUS: Yes.

5 MR. ACKERMAN: The title of motion is "Motion regarding Rule 70,

6 its use and disclosure thereunder." It deals exclusively with the

7 provisions of Rule 70. And in my humble opinion, Your Honour, I think the

8 provisions of Rule 70 are one of the most profound issues facing -- legal

9 issues facing this Tribunal at the present time, because the potential for

10 misuse and abuse in that Rule is just profound, and I will expand upon

11 that in my motion. And I think it's an extraordinarily serious matter,

12 and I think it has to be in writing because there's no doubt that this

13 will be an issue that will at some point be considered by the Appeals

14 Chamber.

15 JUDGE AGIUS: It definitely has to be in writing, because I can't

16 see any sense in discussing the subject without going deep into what is

17 involved in Rule 70, which for those of you who may have followed the

18 negotiations, the preparatory commission on the ICC, especially in the

19 wake of representations made by several humanitarian organisations, and

20 the Rules that have been adopted, you would understand immediately that

21 this is of fundamental importance. It's either at the basis of what -- of

22 our search for justice. It's either essential to have it this way, or it

23 runs counter to the principal concept of equality of arms. Naturally, I

24 mean, we're not saying more than that for the present moment, but

25 especially considering the motion that you have in abeyance, Mr. Ackerman,

Page 3291

1 I thought I -- I was duty-bound to draw your attention to para C, not to

2 waste much of your time or of our time.

3 So can we proceed with --

4 MS. KORNER: Your Honour, yes. I think, then, the answer is

5 Mr. Ackerman says he'll file the motion on Monday. We'll try and get a

6 response out before the break.

7 JUDGE AGIUS: Yes, please. Because I can take it home with me and

8 I can stay working on it.

9 MS. KORNER: Yes, we'll do that.

10 JUDGE AGIUS: Thank you.

11 So let's go into closed session, please, first.

12 [Closed session]

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Page 3368

1 [redacted]

2 [Open session]

3 JUDGE AGIUS: Is there anything you would like to raise before we

4 adjourn?

5 MS. KORNER: Your Honour, we briefly discussed -- well, in fact we

6 didn't have to discuss because we all agreed that Mr. Ackerman's

7 suggestion that as far as the Rule 92 statements are concerned --

8 JUDGE AGIUS: They will not --

9 MS. KORNER: -- they will simply be formally entered into the

10 record and marked however Your Honour or the Registry want them marked,

11 rather than be read out.

12 JUDGE AGIUS: Okay. I thank you. I thank you, Ms. Korner. I

13 thank you, Mr. Ackerman, Maitre de Roux.

14 Anything else? So we'll adjourn until tomorrow at 2.15.

15 To regulate your work -- I will probably ask you to finish a

16 little bit early -- earlier than 7.00, because I need to go to the

17 airport. So probably it will be sometime -- sometime round about 6.00 or

18 something like that, 6.00, 6.15, because I need to be at 7.00 at the

19 airport.

20 MS. KORNER: Well, Your Honour, I think -- to help out

21 Mr. Ackerman and Madam Fauveau, Mr. De Roux, I think you -- this witness

22 will be in chief all day tomorrow.

23 JUDGE AGIUS: Yes. Okay.

24 Thank you, Ms. Korner. Thank you interpreters and the rest of the

25 staff.

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Page 3370

1 We'll all meet tomorrow afternoon at 2.15. Thank you.

2 --- Whereupon the hearing adjourned

3 at 1.44 p.m., to be reconvened on Friday,

4 the 15th day of March, 2002, at 2.15 p.m.

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