1 Thursday, 8 November 2001
2 [Pre-Trial Conference]
3 --- Upon commencing at 2.33 p.m.
4 [The accused entered court]
5 JUDGE RODRIGUES: [Interpretation] Good afternoon, ladies and
6 gentlemen. Madam Registrar, would you please call the case.
7 THE REGISTRAR: Case number IT-98-29-PT, the Prosecutor versus
8 Stanislav Galic.
9 JUDGE RODRIGUES: [Interpretation] Thank you very much.
10 Can we have the appearances, please, for the Prosecution.
11 MR. IERACE: Good afternoon, Your Honours, because of the
12 potentially wide-ranging nature of these proceedings and the size of the
13 Prosecution case, I have arranged for a number of the Prosecution team to
14 be present. In order to my right, I have Susan Lamb, Michael Blaxill,
15 Chester Stamp and Stefan Waespi and to my left is the case manager
16 Ms. Adele Guzman.
17 JUDGE RODRIGUES: [Interpretation] Very well, thank you very much
18 and for the Defence.
19 MS. PILIPOVIC: [Interpretation] Good afternoon, Your Honour. The
20 Defence of General Galic is represented today by attorney Mara Pilipovic
21 and by your leave, also the second member of my team, a colleague from
22 Geneva who would like to introduce himself.
23 MR. PILETTA-ZANIN: [Interpretation] Thank you very much, Your
24 Honour. I see that the microphone is working.
25 JUDGE RODRIGUES: [Interpretation] Yes. The microphones are, but
1 we still don't have a transcript.
2 MR. PILETTA-ZANIN: [Interpretation] I see. I think I'm seeing it
3 now in front of me. It's working.
4 [Trial Chamber and registrar confer]
5 JUDGE RODRIGUES: [Interpretation] Excuse me.
6 MR. PILETTA-ZANIN: [Interpretation] Thank you very much, Your
7 Honour, I just wished to introduce myself. I will act as co-counsel in
8 this case. My name was given; I will be glad to repeat it. My name is
9 Mr. Piletta-Zanin and I will assist Ms. Mara Pilipovic during this hearing
10 and I believe at many others in the future.
11 JUDGE RODRIGUES: [Interpretation] Thank you very much. Allow me
12 to welcome you most particularly because there's a great deal of work to
13 do in this case.
14 I think we can now begin. We have met here today to have a
15 pre-trial conference as envisaged by Article 73 of the Rules of
16 Procedure. As you are able to see, Judge Wald was not able to attend
17 today, but you know well how much attention she attaches to our work and
18 we will certainly share with her the discussions we have today so as to
19 reach a decision by the Chamber which means we will not be able to rule
20 today, we will just collect information and afterwards, the Chamber will
21 render its rulings.
22 I should like to tell you right away that in view of the number of
23 issues that we need to address in the course of this conference, I have
24 envisaged that we sit until 6.00 p.m. today and, if necessary, we will
25 continue working tomorrow. So I am just alerting you to this
2 This conference should be as fruitful as possible as we wish to
3 allow the Chamber, which will be trying this case, to be able to begin the
4 trial on December 3rd on the best possible conditions. We have always
5 said that that should be the trial date. Saying that, I have not
6 forgotten that the Defence has asked leave to appeal our decision
7 regarding Defence motion that it would be necessary to review schedules 1
8 and 2 of the indictment dated the 10th of October 2001 as a modified
9 indictment. A decision that we rendered on the 19th of October.
10 I intend to organise the discussion around three topics, the
11 points of agreement between the parties, the list of Prosecution
12 witnesses, and the list of Prosecution documents. Naturally, we can wind
13 up with an agenda item headed "other items" depending on what the points
14 the parties wish to raise. That would be our fourth agenda item.
15 With respect to the first item, agreements between the parties.
16 The Prosecutor filed on the 26th of October 2001 a list of facts that are
17 held to be undisputed by the parties. I will not conceal from you that we
18 had hoped that your extensive discussions would result in a significantly
19 longer list of points of agreement, longer and more significant ones, but
20 we appreciate those that you have agreed upon and having read your
21 pre-trial briefs, we wonder whether you may not already be ready to reach
22 some other agreements. Specifically as regards General Galic and as
23 regards the victims.
24 Two points which we will elaborate upon: With respect to General
25 Galic, I'm going to put a question to you and then ask each of you to
1 respond. Do you agree that General Galic was appointed commander of the
2 Sarajevo Romanija Corps on the 10th of September 1992? Perhaps I should
3 begin if you don't mind, Mr. Prosecutor, with the Defence. Do you agree
4 with this fact, Ms. Pilipovic.
5 MS. PILIPOVIC: [Interpretation] Your Honour, before we enter into
6 a discussion and respond to your question, I would like to underline that
7 in view of the fact that there has been a request by the Defence to appeal
8 your decision of the 10th of October, we consider this to be one of the
9 crucial issues for the continued work of the Defence in this case, and it
10 is our position that until a decision is made on this request by the
11 Defence, that we cannot proceed with these proceedings.
12 JUDGE RODRIGUES: [Interpretation] Madam Pilipovic, I think that I
13 have already said that we were going to hold this pre-trial conference
14 regardless of your motion. The Chamber will decide what it decides, but
15 in view of the elements that we have at our disposal now, we can have a
16 pre-trial conference. If the Chamber should grant your appeal, there is
17 some work that has already been done and there is more to be done but the
18 Chamber wishes to continue the proceedings.
19 To be fair and to treat equally the parties even after saying
20 this, I would like to give Mr. Ierace a chance to respond to this point.
21 What is your position, Mr. Prosecutor?
22 MR. IERACE: Your Honour, as indicated in the indictment and in
23 the pre-trial brief it is the contention of the Prosecution that General
24 Galic was appointed the commander of the Sarajevo Romanija Corps on the
25 10th of September 1992 and I note that at paragraph 2.30 of the Defence
1 pre-trial brief, that is conceded. Perhaps I could add that at paragraph
2 3.9, Defence pre-trial brief makes clear that the Defence does not dispute
3 the fact that General Galic was the commander in the relevant period.
4 There is no specific agreement that the period of command ended on
5 or about the 10th of August 1994. Thank you, Your Honour.
6 JUDGE RODRIGUES: [Interpretation] Thank you, Mr. Ierace. The
7 question that I put to you, it is still open but Madam Pilipovic raised a
8 preliminary point, preliminary to all our work, that is whether we can
9 hold this pre-trial conference in spite of the Defence request for leave
10 to file an appeal. So it is this point that I should like you to comment
11 on, please.
12 MR. IERACE: Your Honour, my position in relation to that is that
13 proceedings at the moment are at the stage that the Appeals Chamber is
14 considering the preliminary question of whether leave to appeal should be
15 granted. That is no reason for these proceedings to not continue. In my
16 submission, these proceedings should continue. Thank you, Your Honour.
17 JUDGE RODRIGUES: [Interpretation] Madam Pilipovic, have you
18 anything to add on this point and to close the discussion on this point?
19 MS. PILIPOVIC: [Interpretation] The Defence still upholds its
20 position that it is of essential importance for the Defence that a ruling
21 be made on our request as it is based on the opinion that should such
22 leave be granted, then it can object to the indictment. In such a
23 situation, many decisive facts for the Defence would be contained in our
24 objection to the indictment.
25 JUDGE RODRIGUES: [Interpretation] I understand, Madam Pilipovic
1 that you maintain your position, but are you ready to work today?
2 MS. PILIPOVIC: [Interpretation] Yes. Your Honour, the Defence
3 also has a procedural, some procedural issues to raise to see whether we
4 have the necessary conditions to hold this pre-trial conference now and
5 with your permission, my co-counsel would present the position of the
6 Defence regarding the Defence position at this stage of the proceedings.
7 JUDGE RODRIGUES: [Interpretation] Could these questions be raised
8 under point four of our agenda?
9 MR. PILETTA-ZANIN: [Interpretation] Could you please remind us of
10 that item?
11 JUDGE RODRIGUES: [Interpretation] The first point is the points
12 of agreement between the parties. We are now at the stage of the
13 pre-trial conference. Then we have a list of witnesses of the Prosecutor
14 and we must remember that we are still at the Prosecution stage, not the
15 Defence case stage, and the third item is the list of documents of the
16 Prosecutor, and the fourth would be questions that the parties might wish
17 to raise.
18 MR. PILETTA-ZANIN: [Interpretation] May I respond, Your Honour?
19 Thank you.
20 The problem is the following: The measures that we have to
21 undertake as the Defence has to be based on principles that we all have to
22 respect here, those are the principles of justice which we all wish to
23 respect first and foremost. And then, your servant included, has had
24 knowledge on questions that you wish to obtain further information about
25 and I was able to familiarise myself with that only a few hours ago. I
1 personally am not familiar with the list of witnesses because I think
2 there are some 100.000 documents. And in spite of my best efforts, Mr.
3 President, I cannot provide an intelligent and logical response to your
4 question when I practically don't know what we're going to talk about and
5 it is not because I haven't done my work, because I wasn't -- but because
6 I was not authorised to do it. And I think there is an essential element
7 of respect for the principle of a fair trial is respect of time limits
8 and, Your Honour, can this be undertaken because we simply haven't had the
9 necessary information in time. Consequently, if we don't have that
10 information, it seems to us to be difficult, if not absolutely impossible,
11 to go further in cooperating which the Defence wishes to engage in.
12 I don't know whether I was clear enough, Mr. President.
13 JUDGE RODRIGUES: [Interpretation] Yes, very clear, Mr.
15 Madam Registrar, do you have any information which would enable us
16 to understand why it is that the Defence obtained the list of witnesses
18 MR. PILETTA-ZANIN: [Interpretation] Maybe the day before. We were
19 very belatedly informed and also the Prosecution brief was dated the 23rd
20 of October of this year, 2001, which means that the imperative time limit
21 of six weeks of Rule 61 ter which is the basic rule was not respected.
22 I'm not going to say it was violated but it was not respected.
23 JUDGE RODRIGUES: [Interpretation] Yes, Madam Registrar.
24 THE REGISTRAR: Your Honour, the documents that are filed are
25 distributed the same day that they are filed. I will endeavour to find
1 out what happened in this instance.
2 JUDGE RODRIGUES: [Interpretation] Yes, Madam Registrar. When are
3 you going to find out? That is my problem. I would like to know whether
4 the documents were filed and when and served on the Defence because if the
5 Defence tells me that they received the documents yesterday or the day
6 before, then we certainly have a problem. It happens frequently that
7 documents are placed in the little boxes, I don't know how you call them,
8 but the Defence counsel doesn't come to pick them up. So I wish this to
9 be confirmed. Have you any way of checking this, Madam Registrar,
11 THE REGISTRAR: Yes, Your Honour, I will make a phone call right
13 JUDGE RODRIGUES: [Interpretation] Please do that and we'll wait
14 for a minute.
15 [Trial Chamber confers]
16 JUDGE RODRIGUES: [Interpretation] Madam Registrar, do you have
17 the information?
18 [Trial Chamber and registrar confer]
19 JUDGE RODRIGUES: [Interpretation] In any event,
20 Mr. Piletta-Zanin, we have a statement from the Defence which says that,
21 in English, [In English] On 29th November, 2001, in case Stanislav Galic
22 and information confidential, the Prosecution filed list of witnesses
23 pursuant to the Rule 65 ter. [Interpretation] It appears that the Defence
24 was familiar with this list of witnesses far before yesterday or the day
1 MR. PILETTA-ZANIN: [Interpretation] I am not quite sure that I am
2 able to read the date correctly, Your Honour. I am not sure I am reading
3 the date correctly, Your Honour.
4 JUDGE RODRIGUES: [Interpretation] Yes, we seem to have a problem
5 with the date here. Perhaps it would be best to have a break now. We
6 can't continue working like this without knowing exactly all the dates.
7 The date I mentioned was mentioned in a document that you filed but you
8 filed it on the 5th of November.
9 MR. PILETTA-ZANIN: [Interpretation] What I'm saying is that I'm --
10 I am looking through the transcript and listening to you and if I read it
11 correctly, it says the 29th of November, 2001. We know that the Defence
12 is very efficient and it could hardly have filed a document on the 29th of
13 November 2001 because that is not logical.
14 JUDGE RODRIGUES: [Interpretation] I'm sorry for interrupting you,
15 that was my fault, I apologise. I read that date out of context. What I
16 wanted to say, but that is not going to help us much, is that on the 5th
17 of November you filed a statement in which you mentioned a date, but that
18 doesn't help very much.
19 MR. PILETTA-ZANIN: [Interpretation] That's exactly what I was
20 saying, whether it is the 7th or the 8th, and we only received this the
21 day before yesterday.
22 JUDGE RODRIGUES: [Interpretation] I apologise it's my fault.
23 MR. PILETTA-ZANIN: [Interpretation] No, no, don't mention it,
24 Mr. President.
25 JUDGE RODRIGUES: [Interpretation] I think that even before we
1 clarify this matter, there is something that I should like to say. I
2 think that we have said repeatedly that we are now dealing with the
3 pre-trial of the Prosecution and the intervention of the Defence is hardly
4 anything at all, and when we come to the pre-trial conference of the
5 Defence, in that case the Prosecutor will have almost nothing to do with
7 As I said from the very beginning, we are not going to make
8 any decisions today, we're simply trying to have some clarifications on
9 documents that have already been filed, but those clarifications need to
10 be made primarily for the Prosecution, not for the Defence. The Defence
11 will not have much to do with the questions related to witnesses, their
12 number, their identity, the arguments explaining why there are so many and
13 things like that. So if you agree, I would suggest that for us to be able
14 to make the best of the time, that we continue with this Pre-Trial
15 Conference in this direction, that is, with clarification from the
16 Prosecution with respect to its pre-trial brief, that is, its Pre-Trial
17 Conference and then we'll have a break, maybe around 4.00. And then we
18 may be able to clarify all these dates because in that way, we'll have had
19 a certain period of work and then we'll see later. Would you agree with
20 that suggestion?
21 MR. PILETTA-ZANIN: [Interpretation] Allow me to respond, Your
22 Honour, with the approval of my lead counsel, Ms. Pilipovic, I'm looking
23 for the best logic like you, and we would like to avoid a problem when we
24 get lost in dates. This could become quite monstrous, literally and
25 technically to avoid that, and for us to be able to respond to all of the
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 points you are going to ask us about, it is absolutely necessary that the
2 Defence be in a position to be able to do so.
3 We were served less than 48 years [sic] ago, 5.504 pages. I
4 apologise but I simply was not able to read through them so if I am
5 expected to respond to my learned friends, you put me in a position of
6 being a blind person surrounded by precipices, go straight ahead because
7 that is where the door is. I can't do that because there are the
8 precipices there too, and therefore, we cannot give you a position on
9 matters that we are not familiar with because they were served on us only
10 the day before yesterday. This is a principled issue in my opinion which
11 I consider to be of fundamental importance, Your Honour. Thank you.
12 JUDGE RODRIGUES: [Interpretation] Well, I can understand your
13 position but we are working on the pre-trial management of this case now
14 for at least two years. Mr. Piletta-Zanin, you are here today but I
15 think -- the other attorney has been here for at least a year and the
16 question that I was asking is a very simple one.
17 I believe that we do not need to read the 5.000 pages. What I'm
18 trying to make sure is that you, the parties, you submitted an agreement
19 and after having read your pre-trial Defence brief I wondered whether
20 there weren't other agreements because the Defence on several occasions --
21 well I'm not going to list the pages for you, but on several occasions say
22 that I agree, but I contest that. You keep repeating that, I agree but I
23 also object. What I'd like to know is whether it's possible to broaden
24 the agreements; that is, the agreements were ready before. We don't need
25 anything else now in order to deal with the question. That's what I
1 want you to understand.
2 Possibly I might find a compromise solution. I will ask you the
3 question. If you are in a position to answer, then do. If you are not in
4 a position to answer, then tell me, "That I am not in a position to answer
5 because I did not read the 5.000 pages." I believe that that is
6 reasonable, that is reasonable to ask you that because we have a great
7 deal of work to do and we've got to get to it.
8 Taking into account, taking account Rule 15 with Judge Wald not
9 being here orders the continuation of this Pre-Trial Conference despite
10 the motion requesting leave to appeal. We're going to do the work and the
11 Chamber which comes after us will see what is the result of this request
12 for authorisation and if the appeal is granted, the Chamber -- the
13 next Chamber will see what the consequences are for having an additional
14 Pre-Trial Conference. But one thing is to have a complete conference and
15 the other one is to have one an additional one. Therefore, it is out of
16 the question here to suspend this Pre-Trial Conference because of the
17 appeal. The appeal will come afterwards.
18 We will follow the course we have set out and if necessary, we
19 will find at some type of crossroads. The other thing is that I was
20 considering the first point on the agenda and that was the agreements. So
21 I'm going to ask the question now. Let me ask the question of the
22 Prosecutor: I thought that I would begin with the Defence because it has
23 somewhat more to do with the Defence work, but the agreements have already
24 been reached and I have them here. They've been reached. So the first
25 question I want to ask you is, do you agree that General Galic was
1 appointed the Sarajevo Corps Commander on the 10th of September 1992, the
2 Sarajevo Romanija Corps Commander, 10th of September 1992.
3 MR. IERACE: Yes, Your Honour.
4 JUDGE RODRIGUES: [Interpretation] Ms. Pilipovic.
5 MS. PILIPOVIC: [Interpretation] Your Honour, before I reply to
6 your question, the Defence wishes to state that the Prosecution has
7 submitted its stipulations regarding 26 points, 10 being --
8 JUDGE RODRIGUES: [Interpretation] Excuse me for a moment, if you
9 could be direct. Answer the question directly. We already have the
11 MS. PILIPOVIC: [Interpretation] Your Honour --
12 JUDGE RODRIGUES: [Interpretation] Do you agree that he was
13 appointed Sarajevo Romanija Corps Commander on the 10th of September 1992?
14 MS. PILIPOVIC: [Interpretation] Your Honour, that is just one of
15 the facts that we dispute, that that was that particular date.
16 JUDGE RODRIGUES: [Interpretation] All right. So you are
17 disputing that.
18 MS. PILIPOVIC: [Interpretation] We do not have a document as to
19 when General Galic was appointed Corps Commander. There is an allegation
20 that the date in question is the 6th or the 7th or the 10th. Let me just
21 quote the indictment of my colleagues, the date that is indicated in the
22 indictment is the 10th.
23 JUDGE RODRIGUES: [Interpretation] Excuse me for interrupting
24 you. I think that we're going to find a way out of this. Do you have
25 your pre-trial brief on page 1.331?
1 MS. PILIPOVIC: [Interpretation] Your Honour, I do have my
2 pre-trial brief; however, in my pre-trial brief it is quite complicated
3 to locate the relevant page.
4 JUDGE RODRIGUES: [Interpretation] It's on page 9 of your
5 pre-trial brief, paragraph 2.30.
6 MS. PILIPOVIC: [Interpretation] Yes. Yes, Your Honour.
7 JUDGE RODRIGUES: [Interpretation] What did you write here?
8 MS. PILIPOVIC: [Interpretation] In this brief, Your Honour, it is
9 stated that on the 10th of September, 1992, General Stanislav Galic was
10 appointed the Commander of the Corps.
11 JUDGE RODRIGUES: [Interpretation] Fine. What is it that you are
12 contesting now?
13 MS. PILIPOVIC: [Interpretation] Well, I can tell you now in view
14 of the fact that the date of the 10th of September is contained in the
15 pre-trial and we had some discussions as to whether the date in question
16 was the 10th, the 6th or the 7th --
17 JUDGE RODRIGUES: [Interpretation] No, no, excuse me. We cannot
18 work that way. We cannot work that way. You wrote that. We did our
19 work. As I said, we're trying to broaden the agreement. I read, we read
20 and you're reading that you wrote and you signed that that was the date
21 and now you're telling us that it isn't the date.
22 MS. PILIPOVIC: [Interpretation] No, Your Honour. The question I
23 was asked was whether it was on the 7th of September, 1992. That was my
24 question. I don't know what is stated in the transcript. I think that
25 you asked me whether on the 7th of September, 1992, General Galic was
1 appointed the Commander of the Corps, at least that is my note here. The
2 question was whether he was appointed as the Corps Commander on the 7th of
3 September, 1992.
4 JUDGE RODRIGUES: [Interpretation] The date of 10 September 1992
5 which you wrote in the brief is incorrect; is that correct?
6 MS. PILIPOVIC: [Interpretation] There is no mistake in the
7 pre-trial brief, however the question that I heard was whether he was
8 appointed Corps Commander on the 7th of September, 1992, at least that was
9 the interpretation that I received. That is in my note.
10 JUDGE RODRIGUES: [Interpretation] All right, fine. I'm sure it's
11 my fault. Having wasted this time, let me ask you the question again: Do
12 you agree that General Galic was appointed Commander of the Sarajevo
13 Romanija Corps on the 10th of September, 1992?
14 MS. PILIPOVIC: [Interpretation] Yes.
15 JUDGE RODRIGUES: [Interpretation] I don't know where the error
16 came from, but I think I always said the 10th but never mind. Excuse me,
17 Ms. Pilipovic, but I just didn't understand. Pardon me. Perhaps there
18 was an interpretation error. In my mind, I had the 10th of September. I
19 don't think I ever said the 7th or another date. All right, fine. Thank
20 you very much
21 Now we have another point of agreement. The next question is: Do
22 you agree that at the time of the appointment of General Galic as the
23 Commander of that corps, all the units of the corps were assigned along
24 the separation lines in and around Sarajevo and their responsibility was
25 to defend those positions?
1 THE INTERPRETER: Microphone, please.
2 MR. PILETTA-ZANIN: [Interpretation] Mr. President, thank you.
3 Could you tell us, please, so we could avoid any other technical problems
4 the point that is being referred to, because the Tribunal noted it a
5 little while ago in our pre-trial brief. Would that be possible, please?
6 We're just wanting to check the text.
7 JUDGE RODRIGUES: [Interpretation] Yes, I don't think that is
8 possible because we don't -- we didn't underscore that here, that is, the
9 line, but all these indications came from your pre-trial brief. Perhaps
10 the legal officer of the Tribunal has it.
11 MR. PILETTA-ZANIN: [Interpretation] I'm only saying this in order
12 to avoid problems like the one we just had.
13 JUDGE RODRIGUES: [Interpretation] Yes, fine, fine. These are the
14 two points, point 35 on page 10 of your pre-trial brief, paragraph 2.35,
15 2.35. Do you agree? Do you agree?
16 MS. PILIPOVIC: [Interpretation] Your Honour, that is the position
17 of the Defence, yes.
18 JUDGE RODRIGUES: [Interpretation] Mr. Ierace, do you agree with
19 that point?
20 MR. IERACE: Your Honour, that places me in something of a dilemma
21 for this reason: I'm not in a position to say -- to indicate agreement to
22 the proposition that all of the units of the SRK were placed along the
23 confrontation line in Sarajevo. However, I see what the Defence pre-trial
24 brief contains, and in as far as its relevant to the trial, I have no
25 dispute over that. Thank you, Your Honour.
1 JUDGE RODRIGUES: [Interpretation] All right. Then we are taking
2 into account your reservation.
3 The question regarding the next possible point is: Do you agree
4 that throughout the period covered by the indictment, the task of the
5 Sarajevo Romanija Corps was to defend the separation lines?
6 MR. IERACE: Was that a question for the Prosecution, Your
8 JUDGE RODRIGUES: [Interpretation] Let me first ask the question
9 of the Defence if you allow me to, but I'd like to see the paragraph
10 because I didn't note it down.
11 In any case, we didn't note the paragraphs. I don't know if you
12 are in a position to answer the question. The question is: Do you agree
13 that throughout the period relevant to the indictment, the task of the
14 Sarajevo Romanija Corps was the Defence of the separation lines which had
15 been established? I think that you said that several times in your
16 pre-trial brief. Perhaps we have an indication here, at least you say it
17 once on page 7, paragraph 2.20.
18 Do you have any doubts?
19 MR. PILETTA-ZANIN: [Interpretation] I think that first mission of
20 justice is to have doubts.
21 JUDGE RODRIGUES: [Interpretation] Yes. Yes, of course.
22 MR. PILETTA-ZANIN: [Interpretation] The Defence sometimes have
23 doubts perhaps contrary to the Prosecution and we have it only in respect
24 of certain formulations, and I repeat that we are trying to be as specific
25 and precise as possible. We are moving from one text to another. I
1 apologise for the time that I'm taking, but I believe that this is work
2 which is necessary, unfortunately. Thank you.
3 JUDGE RODRIGUES: [Interpretation] But you have paragraph 2.20 in
4 front of you. We also tried, Mr. Piletta-Zanin, to be as specific as
5 possible and noted that on several -- in several places, the Defence
6 states that it accepts this. We have tried, whenever the Defence said
7 that it agreed, to take that as an agreement between the parties. If one
8 accepts that, there's no need to repeat the whole matter.
9 Now, in -- with paragraph 2.20, we want to know whether you agree
10 with what you wrote?
11 MR. PILETTA-ZANIN: [Interpretation] We can agree stating, however,
12 Your Honour, that what is stated in 2.20 is broader than the definition
13 you, yourself, gave.
14 JUDGE RODRIGUES: [Interpretation] Yes, very well. I stated that
15 we had tried to suggest to you an agreement drawing from your brief. I am
16 simply telling you the paragraph and that's where we got the idea from but
17 if I can consider what we consider an agreement is not paragraph 2.20 but
18 the formulation which the Chamber is suggesting to you from that point.
19 And the proposed agreement is: Do you agree that throughout the period
20 relevant to the indictment, the task of the Sarajevo Romanija Corps was
21 the Defence of the separation lines which had been established?
22 MS. PILIPOVIC: [Interpretation] Your Honour, the wording is far
23 too restrictive for the position of the Defence which has been expressed
24 in point 2.20. Our position, our submission, Your Honour, which we will
25 try to prove during the trial was that the separation lines were
1 established after the initial conflict which was -- which were provoked by
2 the Muslims at the beginning of March and which were established on the
3 basis of ethnic supremacy in some municipalities of the city of Sarajevo
4 so that the city was practically divided into a Muslim, a Serb and a Croat
6 JUDGE RODRIGUES: [Interpretation] Very well. In any case, now we
7 have your reaction and that is what we were interested in.
8 Mr. Ierace, what is your reaction to the formulation of that point
9 of the agreement?
10 MR. IERACE: Thank you, your Honour. I agree, subject to the
11 addition of two words to the proposition, so that it reads not "the task"
12 of the Sarajevo Romanija Corps was the defence of the separation lines,
13 but rather, "one of the tasks".
14 Thank you, Your Honour.
15 JUDGE RODRIGUES: [Interpretation] I think that I have to tell you
16 that the Chamber has not made the agreement -- has not reached the
17 agreements. It was done at the suggestion that you might take that as way
18 of broadening the agreements and we are going to suggest to you that the
19 agreement be signed by both parties. So you will have the time to reflect
20 on the matter again.
21 Let me move to the next point possible of agreement. Do you agree
22 that General Galic was the Corps Commander throughout the period relevant
23 to the indictment? Defence counsel, please.
24 MS. PILIPOVIC: [Interpretation] Yes, Your Honour. I think that
25 there was no dispute in respect of this particular point that he was the
1 Corps Commander throughout that period.
2 JUDGE RODRIGUES: [Interpretation] Fine, Mr. Ierace.
3 MR. IERACE: Yes, Your Honour.
4 JUDGE RODRIGUES: [Interpretation] Very well. Thank you. Next
5 point. Do you agree that throughout the period relevant to the
6 indictment, the corps attacked military targets in and around Sarajevo
7 which, of course, does not mean that it is alleged to have attacked only
8 military targets, so I'm referring now to the military targets. Is there
9 agreement about that?
10 MR. PILETTA-ZANIN: [Interpretation] We are making progress, Your
11 Honour, because the Defence instead of saying no to you is going to say
12 yes, but that our formulation would stop after the words "military
13 targets". We find the rest to be superfluous
14 JUDGE RODRIGUES: [Interpretation] Fine, Mr. Ierace.
15 MR. IERACE: Your Honour, I can go a few extra words and include
16 "in and around Sarajevo," and agree with that. Thank you.
17 JUDGE RODRIGUES: [Interpretation] Very well. We'll take that as
18 material to work with. We're going to finish with the points of possible
19 agreement in respect of General Galic. In respect of the victims now, do
20 you agree to consider that the conflict in the urban part of the city
21 caused casualties within the civilian population and damage to civilian
24 MS. PILIPOVIC: [Interpretation] Your Honour, during the trial,
25 the Defence will try to establish the type of casualties and also the type
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 of buildings that were damaged in the urban part of the town.
2 JUDGE RODRIGUES: [Interpretation] No, no, Ms. Pilipovic, that's
3 not what it's about. Do you agree that the conflict caused casualties
4 among the civilian population and damage to the civilian population in the
5 urban part of the city? We are not saying who the victims were and who
6 caused them, whether it was the Serbs or the Muslims. The question is:
7 Do you agree that there were casualties among the civilian population and
8 damage to the civilian buildings? We are not specifying anything more
9 than that now.
10 MS. PILIPOVIC: [Interpretation] Yes, Your Honour, but in that
11 situation, the Defence wishes to add that it did not only concern the
12 urban part of the town but the entire territory of the city of Sarajevo,
13 because Sarajevo is not only made of its urban part. It is made of at
14 least seven different municipalities which encompass the population of
15 that territory as a whole, and it is the submission of the Defence that
16 this should concern the entire territory of the city of Sarajevo, that
17 there were casualties and damages to the buildings in that entire
19 JUDGE RODRIGUES: [Interpretation] Yes, fine. Mr. Ierace.
20 MR. IERACE: Yes, Your Honour.
21 JUDGE RODRIGUES: [Interpretation] Yes, in respect of
22 Ms. Pilipovic's formulation or the Chamber's formulation?
23 MR. IERACE: The Chamber's formulation, Your Honour.
24 JUDGE RODRIGUES: [Interpretation] So without adding what
25 Ms. Pilipovic mentioned?
1 MR. IERACE: Your Honour, I have no difficulty with the
2 formulation proposed by the Defence. Thank you.
3 JUDGE RODRIGUES: [Interpretation] Very well. Thank you.
4 Another point of possible agreement in respect of the victims. Do
5 you agree to consider that there were snipers and that the snipers caused
6 civilian casualties?
7 MS. PILIPOVIC: [Interpretation] Your Honour, we dispute this
8 particular fact and we will call evidence to that effect during the
10 JUDGE RODRIGUES: [Interpretation] Very well. Let me ask you the
11 question a different way, Ms. Pilipovic. I am going to divide this point
12 into two parts. I think I've understood your answer and I think that's
13 what you need. Do you agree to consider that there were snipers?
14 MR. PILETTA-ZANIN: [Interpretation] Mr. President, that simple
15 question demonstrates the difficulties that we have. What is a sniper?
16 JUDGE RODRIGUES: [Interpretation] Fine.
17 Mr. Ierace, what's your opinion in respect to that proposal?
18 MR. IERACE: Would Your Honour allow me just a moment?
19 JUDGE RODRIGUES: [Interpretation] Yes.
20 MR. IERACE: Your Honour, certainly I have no problem with the
21 proposition, therefore, formally I agree with the proposition. I wonder
22 whether there might be some misunderstanding on the part of my friends. I
23 am attempting to locate a particular part of the Defence pre-trial brief
24 that might assist Your Honour in achieving a greeter degree of agreement
25 on this point.
1 Your Honour, perhaps I could suggest that the Defence be referred
2 to paragraph 4.11 of the Defence pre-trial brief. I wonder whether the
3 Defence appreciates that the wording of Your Honour's proposition
4 encompasses the notion that snipers -- encompasses the notion that sniping
5 was not necessarily attributed to the SRK but rather embraces the notion
6 of snipers in a general sense. Having regard to paragraph 4.11 of the
7 Defence pre-trial brief, it would appear that the Defence indeed
8 acknowledges that there were snipers intentionally operating against
9 civilians in a general sense. Thank you, Your Honour.
10 JUDGE RODRIGUES: [Interpretation] Thank you, Mr. Ierace. I think
11 that that is why I did say it was general. The objection was raised and
12 the question was asked about what is a sniper? I was going to invite the
13 parties to reach an agreement on a definition because the definition is
14 part of the Prosecutor's charges that the Prosecutor has a definition in
15 respect of what is sniper is. But when one asks what is a sniper? perhaps
16 we're not going to spend the whole trial or a large part of it trying to
17 find a definition. We've got to have a definition, if possible, by
19 Perhaps you have the transcript, you have the Chamber's
20 suggestion. You know the various answers that were given. It might be a
21 good starting point for you to reach a point of agreement, because it is
22 true that as Mr. Ierace pointed out, even if the Defence used the notion
23 without questioning it and so I do have some of the idea that there was
24 something else that we could discuss but there is the notion which was
1 In order to move forward, the notion here is that snipers, without
2 it as being said that they were part of one side or the other, they were
3 simply snipers. And the question was whether those snipers, defined
4 generally, without stating where they were from or to which side they
5 belonged, it's simply asking whether they had caused civilian casualties.
6 That's the proposition and I will leave you with that. What I could ask
7 you yet or to repeat is that this is the suggestion that the Chamber
8 wanted to put forward, but I don't know if you are more imaginative
9 and more -- have more fertile imaginations than the Chamber does in order
10 to reach agreements. Mr. Piletta-Zanin?
11 MR. PILETTA-ZANIN: [Interpretation] Your honour. No one can be
12 forced to do what is impossible, everybody knows that. What we can do is
13 to speak with the Prosecution and review calmly in order to find out
14 whether we can reach an agreement and I'm sure we can on this point.
15 JUDGE RODRIGUES: [Interpretation] Fine. What I wanted to do was
16 give you a pretext for a meeting with the Prosecutor at least in order to
17 discuss whether the points that we raised and I think some can, I think,
18 can be used in order to broaden the agreements already reached. And if
19 you have anything else, other points of agreement, that would be very good
20 as well.
21 MR. PILETTA-ZANIN: [Interpretation] I thank you the Chamber.
22 JUDGE RODRIGUES: [Interpretation] We thank you for your
24 We will note your answers and I will ask you that as quickly as
25 possible, you send to the Chamber a joint document, by that I mean a
1 document signed both by the Defence and the Prosecution repeating all of
2 the agreed points including those that were obtained here, and the others
3 which might be obtained after your having spoken with one another. I
4 think you understand that as quickly as possible, you are going to go back
5 to the document, this document we have in front of us and replace it with
6 another one with the agreements which to some extent we reached here and
7 others which you might reach.
8 Do you agree? Now, Ms. Pilipovic?
9 MS. PILIPOVIC: [Interpretation] Your Honour, the Defence will
10 endeavour, after we receive the transcript from today's hearing, to
11 analyse today's discussion and present its position subsequently.
12 JUDGE RODRIGUES: [Interpretation] Allow me, Madam Pilipovic, to
13 add other points too that you may be able to come across and on which you
14 may be able to reach agreement. Do you agree with this procedure, Mr.
16 MR. IERACE: I do, Your Honour.
17 JUDGE RODRIGUES: [Interpretation] Very well. So we're now going
18 to go on to our second agenda item and that is the list of Prosecution
19 witnesses. We have another 20 minutes before 4.00.
20 Allow me to say to you, Mr. Prosecutor, that you invested a
21 considerable amount of effort which the Chamber appreciates very much;
22 however, you have not made our task easy, both on account of the large
23 number of witnesses that you intend to call, and also because there is a
24 lack of synthesis in the presentation of your documents.
25 Rule 65 ter of the Rules in fact requires that the counts and
1 paragraphs that are relevant in the indictment should be indicated on
2 which the witnesses will be testifying. You certainly did that. However,
3 it isn't quite clear how many witnesses would come to testify on the same
4 fact or the same subject or issue, and the Prosecutor has accustomed us to
5 obtaining such a document which is very useful and that is the proof
7 This distinction is not immediately apparent, that is, between the
8 witnesses who will come to present to the Chamber some general
9 information, then witnesses of a particular fact or several particular
10 facts, and expert witnesses. What I'm trying to say, there's a slight
11 confusion, I apologise for using that term, it's the one that immediately
12 occurred to me, that is expert witnesses, according to Rule 94 bis, and
13 those who are going to come and authenticate documents.
14 So we will need your assistance to try and clarify this fully
15 respecting the strategy that you wish to adopt. Please correct me,
16 Mr. Prosecutor, and also my colleague, but I have counted as various
17 groups of witnesses, that is general witnesses, then witnesses on the role
18 of General Galic, witnesses of particular facts, expert witnesses, and
19 witnesses pursuant to Article 92 bis, and I must observe with respect to
20 this point that the Defence agrees to only 10 witnesses. All these are
21 Rule 92 bis witnesses, tend to enable the authentication of documents
22 which the Prosecutor intends to use as Prosecution exhibits. We should
23 like to review these different categories of witnesses so as to see
24 whether it might be possible to shorten the duration indicated by the
25 Prosecutor for the presentation of its case.
1 So let us begin with what we have called general witnesses but
2 just a moment, please. But before we address this chapter relating to the
3 category of witnesses, it should be said that we are fully aware that you
4 have grouped your witnesses into at least nine headings. I don't have
5 here the French version, but the first chapter is terror; the second,
6 command and control; the third - I don't know how to say that in French -
7 on notice; the fourth, scheduled sniping incidents; the fifth,
8 nonscheduled sniping incidents; the sixth, sniping generally; the seventh,
9 scheduled shelling incidents; the eighth, nonscheduled shelling incidents;
10 and ninth, shelling generally.
11 If we add up several witnesses that are going to testify under
12 these nine groups, and if we are not too strict mathematically, we are
13 going to have 81 witnesses. As I was saying, we'll not be strict
14 mathematically, but we will have the same witnesses coming to testify
15 under several headings, as you know.
16 Let us now undertake the analysis of the category that we defined
17 as general witnesses. The Prosecutor intends to call a very large number
18 of witnesses within this group, most of whom stayed in Sarajevo as members
19 of UNPROFOR, 30 witnesses, or as United Nations monitors, 13 witnesses.
20 Is it truly necessary to have all these witnesses be called to
21 testify? Would it not be possible to make a selection? Some of them
22 might have what one might call privileged information on what happened.
23 We noted that some of those witnesses also appear under the category of
24 those who may be able to provide information on the role of General
25 Galic. Can we not there find a source of possible economy? So I have
1 two questions. Is it really necessary to call all these witnesses that we
2 described as general witnesses; and secondly, could we economize? That
3 is, if I may, let me say that I think that the parties here, both the
4 Prosecution and the Defence should be fully conscious of the fact that the
5 Tribunal does not exist solely for this case and that we are using the
6 resources of the International Community. It is paying all of us to be
7 efficient and to be professional in our activities. And frequently,
8 I have the impression - maybe I don't have the right to express my
9 opinion - that the Tribunal is being transformed into a travel agency or
10 an employment agency because, in my opinion, except in exceptional cases,
11 there's no point in bringing a witness to testify for 15 minutes or half
12 an hour except exceptionally. One must have a very good reason for this
13 and that reason could be that this witness knows what he's going to tell
15 It is a luxury to call a witness to appear for 15 minutes or half
16 an hour in this Tribunal when we have witnesses who can provide the same
17 information. So what I'm saying is that we must do everything we can to
18 economize. If a witness is necessary for five minutes and if that is
19 necessary for justice, he should come, that witness should come. But if
20 what this witness can say can be said by other witnesses who are going to
21 come here to testify for an hour, an hour and a half or two hours, then it
22 should be done.
23 You must bear in mind how much it costs the International
24 Community to bring a witness here for such a short period of time if
25 that witness is not absolutely necessary. So that was a digression on my
1 part and I would like the parties to take this not as any kind of
2 judgement regarding the conduct of the parties. It's simply that the
3 Chamber would like to know what are the reasons explaining why it is
4 necessary to have such a large number of witnesses and in some cases,
5 could we not economize in terms of time and funds, et cetera.
6 So Mr. Ierace, you have the floor. You are the master of your
8 MR. IERACE: Your Honour, first of all, in relation to the format
9 in which the 65 ter witness material is provided, I should say that I gave
10 careful consideration to adopting the Prosecution chart format but
11 ultimately decided that the nature of this indictment did not lend itself
12 readily to that format.
13 This indictment is unusual in that ultimately all of the counts
14 come down to the same crime base, and the format which I adopted, I think
15 best reflected the structure of the indictment. Now, Your Honour has
16 correctly noted that there is considerable overlap between most,
17 overwhelmingly most of the 217 witnesses who the Prosecution proposes to
18 call. That is no accident. In selecting witnesses, the Prosecution -- I
19 should say, in selecting some groups of witnesses, the Prosecution has
20 sought to maximize the number of witnesses who can testify to more than
21 one part of the case. To put it simply, rather than call five witnesses
22 to give evidence of five facts, it is preferable to call one witness who
23 can give evidence of five facts or five areas.
24 I say most because the witnesses who were selected for --
25 JUDGE RODRIGUES: [Interpretation] Allow me to interrupt, Mr.
1 Ierace, and I do apologise. But I see, for instance, that for the
2 witnesses that are going to testify directly regarding terror, there are
3 many who are testifying on several counts, there are some that will be
4 testifying on four or five, there are many. But there are many witnesses
5 who come solely to testify on Counts 1 and 6 when those same counts have
6 been included for witnesses who are coming to testify on several issues.
7 So I am underlining this because it is quite clear that there are many
8 witnesses who will be testifying on chapters, 1, 5, 6, 7, and 9, many of
9 them, 1, 6, 7, and 9, but there are also many witnesses who are only
10 testifying on points 1 and 6.
11 Why call witnesses who will be testifying on paragraphs 1 and 6
12 when there are many who are testifying on paragraphs 1 and 6 and many
13 others at the same time? So that is my question. I can give you some
14 names on -- for instance, Jeremy Bowen, Ismet Ceric, Dr. Jusuf Agiri
15 [phoen] and there are others. These people that I have mentioned are
16 testifying only on paragraph 1 and 6 and then you find a large number of
17 people who are also going to testify on paragraphs 1 and 6 and then on 7,
18 8 and 9 or 5 and 9. So that is what I'm trying to understand, Mr. Ierace.
19 Let me also say that there are witnesses for whom we have a
20 summary and who are not on the list of witnesses. So we have some
21 problems. For instance, the summary that you have on 1.568, page 1.568,
22 and also the summary on page 1.556 and again 1.454, there are summaries
23 there but you don't find those names on the list of witnesses.
24 What Rule 65 ter says is a list of witnesses together with the
25 summary of their statements, the estimated duration of their testimony,
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 and so on. Maybe I have caused a lot of noise, a lot of disturbance in
2 the numerous questions that I have put to you.
3 MR. IERACE: Your Honour, I will check the witnesses, that is the
4 65 ter summaries which appear at those three pages and I will also give
5 some consideration to the point that Your Honour has raised before then.
6 I notice the time and that Your Honour said that we would adjourn around
7 4.00. Would it be convenient if we were to adjourn now so that I can look
8 at that material and then respond after the adjournment?
9 JUDGE RODRIGUES: [Interpretation] Yes, Mr. Ierace, but there is a
10 general question and that is: Do you really need the presence of all
11 these witnesses, bearing in mind the fact that we should make the best of
12 each and every witness who can talk about many things and avoid witnesses
13 who will only be testifying a minor or one particular point which has
14 already been covered by more general witnesses? So if a witness comes to
15 testify on paragraphs 1, 6, 8, and 9, and you have quite a number of them,
16 this combination 1, 6, 8, and 9 is repeated several times, this group of
17 numbers. So my question is you have if you have a witness or several
18 witnesses who are coming to testify on paragraphs 1, 6, 8, and 9, why
19 bring witnesses who are coming to testify only on paragraphs 1 and 6? If
20 there are already others that are covering this and I think that we are
21 here at -- discussing things at a very general level. If we need to prove
22 that there were victims, perhaps that's all we need to do. We have to
23 know who the victims are, but we are not here to judge each and every
24 murder or death, but come to the conclusion whether yes or no, people
25 died, so maybe we should have the break now.
1 You will have a chance, Mr. Ierace, to review the matter, perhaps,
2 and Madam Registrar will also give us more precise information. Madam
3 Registrar, do you already have some information to convey to us or are you
4 going to see? No. Very well. Madam Registrar is going to look into this
5 question of documents which reached you so late and we will see why
6 because we have to know that, after all.
7 So we are now going to have a 20-minute break.
8 --- Recess taken at 4.01 p.m.
9 --- On resuming at 4.28 p.m.
10 JUDGE RODRIGUES: [Interpretation] Madam Registrar, do you have
11 the information that we asked for, the relevant information?
12 THE REGISTRAR: Yes, Your Honour. I've been provided information
13 from the Defence indicating that they received the witness list on the 2nd
14 of November. This document was filed with the Registry on the 29th of
15 October and notification was made on the 29th of October.
16 For the exhibit list, I was notified by the Defence that they
17 received it by mail in Belgrade on the 6th of November. This document was
18 filed with the Registry on the 31st of October and notification was made
19 on the 1st of November.
20 JUDGE RODRIGUES: [Interpretation] Very well. Yes, Ms.
21 Pilipovic. I don't think it's worth taking too much time about this,
22 because we are going to continue our work, but yes, I give you the floor.
23 MS. PILIPOVIC: [Interpretation] Thank you, Your Honour.
24 The document dated 29th October containing the list of witnesses
25 was received by the Defence through mail on the 2nd of November, 2001, in
1 Belgrade. As for the list of exhibits which was filed by the Prosecution,
2 it was picked up by the Defence on the 6th of November, 2001. It was in
3 the locker, and I picked it up on the day when I arrived in The Hague
4 around 13.30, half past one. The first document containing the list of
5 witnesses I was only able to skim it through, and I provided our position
6 to the Prosecutor on the 4th of November, that is regarding our position
7 on the witnesses pursuant to Rule 92 bis. As regards the exhibits, we did
8 not have enough time to study that particular list because we received it
9 on Tuesday, on the 6th of November.
10 JUDGE RODRIGUES: [Interpretation] Very well, Ms. Pilipovic.
11 Thank you very much.
12 Mr. Prosecutor, would you continue then, please, with the answer
13 to the questions that I asked you. Please proceed.
14 MR. IERACE: Thank you, Your Honours.
15 I understand Your Honours to be concerned that there are some
16 witnesses who the Prosecution proposes to call and who are marked as
17 giving evidence relevant to only one of the nine topics which are
18 identified in the index to the 65 ter brief.
19 Your Honour, where that is the case, there is often, if not
20 always, a special reason. One of the names that you mentioned before the
21 adjournment was the proposed witness Ismet Ceric. His name appears under
22 the list -- within the list of witnesses nominated for the topic of
23 terror. Dr. Ceric is in a unique position to give evidence about the
24 effects of terror on the population of Sarajevo during the war since he
25 was the head of psychiatry of the university medical centre during the
1 war. He is uniquely placed to give expert evidence of the impact of
2 what the Prosecution alleges to be a deliberate campaign of sniping and
3 shelling of civilians.
4 That's as much as I'll say about him at this stage but I simply
5 wish to illustrate why it is that a witness who comes under only one
6 heading is nevertheless a critical witness.
7 Your Honours will note that there are the names of many other
8 witnesses who appear under that heading of "Terror." Almost invariably
9 that is because although they are witnesses primarily nominated under a
10 different heading, they are nevertheless in a position to give evidence of
11 their own experience in terms of experiencing terror as a citizen in
12 Sarajevo and, therefore, that is material which is relevant to the first
14 I appreciate that Your Honours are concerned that the witness list
15 should be refined and reduced to the bare minimum, to the minimal
16 sufficient number. I would like to respond to that concern with a
17 proposal, and perhaps I can stay with the topic of terror to illustrate
18 that proposal.
19 As I've already said, there are a number of names on that list,
20 but that is not the primary reason those witnesses are being called to
21 give evidence. The primary reason for many of them is that they are a
22 witness to a scheduled sniping incident or a scheduled shelling incident.
23 It may well be that having heard evidence from the first two or three of
24 the witnesses whose names appear on the "Terror" list, and in particular,
25 their evidence in relation to terror, that the Trial Chamber will, in
1 effect, take judicial notice of what I would submit is a fact, that if a
2 civilian is living in an urban setting where they are at danger of being
3 sniped or shot or their loved ones are in danger of being sniped and shot
4 or their friends, that that will engender in them, if you like, as a
5 matter of human nature, a sense of terror. At that point, further
6 evidence from these various witnesses to that effect could stop.
7 Another area of the Prosecution brief that may be examined in a
8 similar light is the topic of what I might call the pre-indictment
9 history. Your Honours will note that in the 65 ter summaries, there
10 recurs a subheading "Pre-indictment History."
11 There are a number of witnesses who, in their statements, recount
12 events which occurred between the commencement of the armed conflict in
13 around April or May of 1992 and the beginning of the indictment period in
14 early September 1992. To an extent there is relevance in that material,
15 the pre-trial brief articulates that it is the Prosecution's contention
16 that General Galic took over a pre-existing campaign of sniping and
17 shelling. The Prosecution contends that the confrontation lines were
18 essentially established before General Galic assumed command of the
19 Sarajevo Romanija Corps.
20 It is, I would readily concede, unnecessary for every witness who
21 is in a position to do so to give evidence of that period. So again, once
22 that evidence is given the first time, perhaps the second, then the
23 position of the Prosecution would be secure in terms of not having to lead
24 further evidence under that topic.
25 Perhaps that doesn't assist the Trial Chamber in reducing the
1 overall number of witnesses. From that perspective, there are two
2 possible areas where witnesses may be shed.
3 The first such grouping is what internally the Prosecution refers
4 to as "overview witnesses," that is, witnesses who are able to give an
5 overview of the events of the indictment period, and in some cases, the
6 pre-indictment period. The mayor of Sarajevo at the time is one such
7 witness. I do not suggest that that individual should not be a witness,
8 but to give another example, there is a witness who represents the water
9 authority, who is able, in short evidence, to give a summary of the
10 periods of time that the water was not available to the civilians
11 of Sarajevo.
12 I should add that the relevance of that evidence is not to the
13 effect that the SRK, the Sarajevo Romanija Corps, or General Galic sought
14 out to cut off the water, but rather, it was, amongst other factors, the
15 lack of utilities within the home which forced civilians out of the
16 relative safety of the home on a daily basis and onto the street; in other
17 words, to obtain water, fuel for warmth and cooking and so on.
18 Those -- that sort of evidence is ripe to be treated by way of
19 92 bis, Rule 92 bis, and indeed a number of the witnesses that we propose
20 to be treated that way were such witnesses.
21 The second area that may lend itself to some reduction is the
22 internationals, for lack of a better term, that is, individuals who were
23 in Sarajevo at some point during the indictment period, but who originated
24 from outside. They were non-residents. They were often there in their
25 work capacity as members of UNPROFOR, UNMO, UNHCR, and other agencies.
1 Their evidence is valuable, and Your Honours will note that there is a
2 relatively large number of them. I hasten to add that the reason for
3 that, in a large part, is the length of the indictment period. Typically
4 such witnesses were not in Sarajevo for the entire 22 months. Indeed,
5 typically they were there for three to six months. Nevertheless, in that
6 period which they were present, they witnessed events which are important
7 to the Prosecution case.
8 Perhaps I should say at this juncture that essentially the
9 Prosecution case is a circumstantial one. It's one that must be built
10 with a multitude of small components of evidence in order to lead the
11 Trial Chamber, in the Prosecution case, to the conclusion which the
12 Prosecution proposes.
13 So Your Honours, I'm saying that although there appears to be on
14 the face of it a large number of such witnesses, given the length of the
15 indictment period and the short periods which these witnesses were
16 present, that is the reason that there are so many. Nevertheless, it may
17 be that we could reduce some of the witnesses from that category.
18 I hasten to add though that we have exercised a lot of care and
19 put a lot of thought into this final list. Whilst it may seem on the face
20 of it that there is perhaps -- there are perhaps too many, when one has
21 regard to the rationale for each witness, in fact, I don't think it is the
22 case. Therefore, if we were to reduce the list of our own volition, I
23 would not anticipate a dramatic reduction in the overall number of
24 witnesses. I would rather submit that the overall length of the
25 Prosecution case would be better reduced by having regard to the topics
1 under which so many of the witnesses will give evidence, such as terror
2 and such as the pre-indictment period.
3 If I might refer to another of the names that Your Honours
4 mentioned, Your Honour mentioned before the break that of Dr. Hadzir. It
5 appears that Dr. Hadzir's name only appears on the list of terror and
6 perhaps that is an oversight on the part of the Prosecution.
7 Dr. Hazir was the hospital which came to be know as the Srbinje
8 Hospital. It was set up during the armed conflict and quickly swelled in
9 numbers of medical staff and in numbers of patients to a point where it
10 operated as a minor general hospital treating hundreds of civilian
11 patients on a regular basis.
12 Dobrinje was also a particular theater of the war which warrants
13 some special attention. Your Honours will note that a number of the
14 shelling and sniping incidents occurred in Dobrinja and I think that the
15 Trial Chamber will benefit from the testimony of Dr. Hadzir who is
16 uniquely placed to comment on not only the extent of civilian casualties
17 in that that area that he treated through his hospital, and in particular
18 children, but also because he was forced to live in the area, he could not
19 always safely return to his home in a different part of Sarajevo. He's
20 able to give first-hand evidence as to the impact, from his own
21 observation, of the shelling campaign in Dobrinja.
22 So Your Honours, that's what I propose as a -- perhaps a preferred
23 way from the Prosecution perspective of reducing the length of the
24 Prosecution case.
25 Thank you Your Honours.
1 JUDGE RODRIGUES: [Interpretation] Yes, Mr. Ierace. I understand
2 your reasons in respect of the examples we took, but I do note, you know
3 when I talked about headings 1 and 6, I'm talking about the list of
4 witnesses for terror, and snipers in general. But if we have witnesses
5 who come who are going to testify only in respect of headings 1 and 6, we
6 could see that there is 31 witnesses who, in addition to testifying to
7 other headings will also be testifying about headings 1 and 6.
8 You explained to us that it's a psychiatrist who is going to check
9 on the effects of terror - might be a medicine - who observed people who
10 were ill. All right, but if we have this testimony already, why do we
11 have to have 31 other witnesses to speak about it even if it's from
12 another perspective because I think that it really isn't necessary for the
13 case to supplement every perspective possible to bring in every possible
14 person, any person who might be in a position to testify about heading 1
15 and 6.
16 What I was thinking is -- the Chamber, you see, needs to have your
17 position and to understand it very well because, as you know, the Chamber
18 can reduce the number of witnesses. Yes, it's easy to say that, but the
19 Chamber, I think, can only do that according to its own discretion. And
20 they could say, "I don't like this one. I don't like that number. I'm
21 going to cut it out." But if the Chamber is being to reduce the number,
22 it has to have good reasons for doing so and one must take into account
23 the fact that the -- the principle is that the parties build their cases
24 and that principle must be respected.
25 As you know, we've got to strike a balance in the Rules, that the
1 Chamber can reduce the number of witnesses with reasonable criterion but
2 at the same time, it can set up a pool of reserve witnesses in which the
3 parties could then use to say that "I finished presenting my case,"
4 whether it's the Prosecution or the Defence, "And I realise, Your Honours,
5 that for this and that reason, for this and that witness on my reserve
6 list, I'm going to need that person." You can always come back and try to
7 get to the very essential witnesses of the cases.
8 I can share my vision of the case with you. We have witnesses, to
9 some extent, excuse the expression, who are really kind of umbrellas for
10 the whole case. We could mention for example the witnesses you have just
11 mentioned, the 30 witnesses from UNPROFOR, the 13 United Nations monitors
12 and as you say, it's because they did not remain throughout the time
13 covered by the indictment, but if you add up 1, 2, 3 and 4, perhaps you
14 would then have a set of witnesses that could cover the entire period
15 relevant to the indictment, and that would be kind of a general umbrella.
16 Subsequently, if you need witnesses for each incident for specific
17 facts in that case, it isn't necessary -- my way of looking at this case,
18 perhaps it might not be necessary, to bring in 60 witnesses for the
19 shelling incidents. Perhaps if you realise that several incidents were
20 spread out from 1992 and then 1993, 1994, in 1992, you -- for 1992 you've
21 got five witnesses, in two incidents; for 1993, 32 witnesses, there were
22 more incidents; and for 1994, you've got 22 witnesses.
23 If you have a kind of an umbrella witness for the whole case, you
24 might not need to call in so many witnesses and one could also see that in
25 respect of each incident. For instance, one could have the market
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 incident where there were many witnesses that you've mentioned. For that
2 incident, you might have umbrella witnesses, those who observed things in
3 hospitals, funeral directors, people that would cover the entire incident
4 and then for the specific incidents within the umbrella case, you'd bring
5 in another witness.
6 So perhaps we could organise the witness list according to that
7 logic; that is, that there are general witnesses for the whole thing, that
8 is umbrella witnesses, and then you could have to go into all the details
9 for several incidents. So one could say that for each incident there
10 would be one witness for each incident, possibly two if the incident is
11 important enough and one witness might not have all the information. That
12 would be a way of enormously reducing the number of witnesses, one
13 strengthen the umbrella witnesses and cut down significantly the
14 witnesses to specific incidents.
15 What do you think about that, Mr. Ierace? And this has to do
16 with the comment that I made because it is true that there are
17 witnesses -- let's go back to headings 1 and 6. Yes, there are witnesses
18 three or four at least, who will come only to testify to those two
19 headings, 1 and 6, but then afterwards, there are at least 31 witnesses
20 for whom headings 1 and 6, along with 2, 8 or 9, are also going to be
21 testifying; that is, witnesses testifying about other headings, that is
22 the 31, but also testifying about 1 and 6.
23 So that's the kind of philosophy that can be used in such a way
24 that one would find a witness that would cover the largest amount of
25 things possible and thus avoid bringing in a witness who would testify
1 only about a specific point unless, as I said - and I do emphasise this
2 point - unless that witness who would come to witness only about a
3 specific point was called. If he were to testify between 15 minutes or 30
4 or 45 minutes, we should be able to do everything we can to avoid that
5 kind. If another witness is going to come in and testify, we don't need
6 to bring in a witness only for so short a time and for so specific a
8 Do you understand what I mean, Mr. Ierace? Let me hear what your
9 reaction is. I give you the floor.
10 MR. IERACE: Your Honours, please forgive me for responding in a
11 way that perhaps follows on from my previous submissions. Could I firstly
12 say this: Your Honour has again referred to the list of witnesses for
13 terror, that is, point 1. Apart from Dr. Ceric, I think without
14 exception -- I'll put it this way: If we were to take the names of all of
15 the remaining "Terror" witnesses from that list, then the overall number
16 of witnesses to be called would be barely reduced. In other words, with
17 the exception of Dr. Ceric, almost without exception, every other name on
18 that list is of a witness who is primarily giving evidence under a
19 different topic.
20 If I could approach it a different way. In the comments which are
21 contained on the first page of the Prosecutor's list of witnesses pursuant
22 to Rule 65 ter, and I refer specifically to page 1.596, Your Honours will
23 see the number of witnesses under each of the relevant categories for each
24 of the counts. It might be helpful if I was to indicate the primary
25 categories, and perhaps in doing it that way, I can make my point.
1 Under Counts 2 to 4, the number of witnesses in relation to
2 scheduling sniping incidents is identified as 63. So of the 217 overall
3 witnesses, 63 are giving evidence - that is almost a third - because they
4 are relevant to scheduled sniping incidents.
5 I can tell Your Honours, if I just refer further to the scheduled
6 sniping incidents, that of the 26 scheduled sniping incidents,
7 approximately in respect of 18 there are only two witnesses per incident,
8 and in some of those cases, there is one civilian witness and a police
9 officer or the like who carried out an investigation.
10 There are another four or five incidents where there is only one
11 witness. Further, in relation to the sniping, the Trial Chamber will have
12 the benefit of the video, the DVD, so that the witness -- the evidence
13 given by those witnesses, I anticipate, will be very short because it will
14 be, in effect, supplemented by the video.
15 I move further down the list for the witnesses, the number of
16 witnesses under counts 5 to 7, and in particular witnesses in relation to
17 scheduled shelling incidents, 71. So if one combines that figure of 71
18 with the figure of 63, one has 134. Over half the witnesses have to be
19 here anyway because they are to give evidence in relation to the scheduled
20 incidents. They are what perhaps I could refer to as primary witnesses or
21 witnesses who give evidence to primary aspects of the Prosecution case.
22 In a similar category, I take Your Honours to witnesses in
23 relation to notice to the accused of the shelling of civilians, 34; and
24 witnesses in relation to the accused's command and control, 37. There is
25 some overlap between those two groups of 34 and 37. They are the UNMOs,
1 UNPROFORs and the like. But if you add all those numbers together, you in
2 effect have the Prosecution witness list.
3 It happens that the witnesses who are coming here anyway to give
4 evidence as to scheduled sniping incidents are also able to recount
5 observations and awareness of a multitude of unscheduled sniping
6 incidents, unscheduled shelling incidents, and give evidence generally
7 about the sniping and the shelling.
8 The Trial Chamber will benefit from that material because it will
9 give the Trial Chamber a sense of the scale of the magnitude of the
10 campaign, and I emphasise the word "campaign."
11 Our point is essentially this, that if there is to be a reduction
12 of witnesses of any significance, then they have to come off those primary
13 lists. And my illustration of that point is that if you took up all but
14 one of the names on the "Terror" list, it would barely impact, if at all,
15 on the overall number of witnesses. They are witnesses who are coming
16 anyway who are in a position to talk about terror.
17 There are two witnesses who, in effect, talk directly on terror,
18 Dr. Ceric, a psychiatrist who was there at the time, and an expert witness
19 on terror still to come.
20 The same could be said of the witnesses who speak about
21 unscheduled shelling, unscheduled sniping, and sniping and shelling
22 generally. If those four lists were wiped out, there would be little
23 impact on the number of witnesses. So the focus has to be on those
24 primary lists. And when one looks at those primary lists, it's difficult
25 to see where the cuts should be. That is the difficulty that I have in
1 proposing how the Prosecution could significantly reduce that list. But I
2 hasten to add, I think that we can reduce the amount of time that each of
3 the witnesses is in the witness box.
4 And further - can I say this, Your Honours? - the Prosecution has
5 made a proposal in relation to 92 bis. The response from the Defence has
6 been, in effect, to reject it. I think there are only two or three
7 witnesses who the Defence is prepared to accept as 92 bis witnesses. I
8 think that there is a lot of room for moving witnesses off the viva voce
9 list onto 92 bis if there is a more receptive approach by the Defence. In
10 particular, a lot of the overview witnesses, I think, could be moved into
11 that area. There are two names that Your Honours mentioned before the
12 adjournment who clearly should be in that list. One was a nurse who was
13 in a position to authenticate medical records documents, and the
14 other was an employee of the television station who can authenticate
15 videos. They should clearly be 92 bis.
16 The Defence has made clear in its response to our proposal for
17 92 bis witnesses that they have concerns about the quality of the medical
18 records. In particular, they say they want some evidence as to the manner
19 in which the records were taken. We're happy to provide that, to find a
20 witness who will testify as to what the procedure was.
21 The Defence also articulates a concern that the records are not
22 uniformly legible. There's nothing the Prosecution can do about that.
23 The Prosecution has taken further investigative steps to get better copies
24 without success. That's something the Prosecution has to weigh. It's a
25 factor to be taken into account in assessing the relevant issues. That is
1 not a reason, in my submission, to not accept the documents under 92 bis.
2 Perhaps when there is a statement as to the manner in which the records
3 were taken, the Defence could review its stance in relation to the
4 receiving into evidence of the records themselves.
5 I say these things as an example of how the Prosecution case can
6 be reduced without necessarily drastically reducing the number of
7 witnesses. The Prosecution is also hopeful that many of those witnesses
8 can give -- the crime base witnesses can give evidence by video from
9 Sarajevo to avoid a large number of witnesses being transported to The
11 Thank you Your Honour.
12 JUDGE RODRIGUES: [Interpretation] Mr. Ierace, let us try and
13 analyse these things, but regarding Rule 92 bis, it is true that the
14 Defence is entitled not to agree. But it is also true that this will be a
15 suggestion that this Chamber will pass on to the Chamber that will try the
16 case, but they also have to say why they don't accept and after the
17 reasons are given by the Defence, it is quite possible to limit, to hold
18 the Defence to the reasons that they gave for not agreeing. So it's not
19 an open-ended right to cross-examine the witnesses, but only based on the
20 reasons that the Defence is has given for not accepting and all this can
21 speed things up.
22 Perhaps there will come a point in time when the Chamber will say
23 to the Defence, "Fine, you don't accept a Rule 92 bis, but why?" And then
24 the Defence will say for such and such a reason. And then the Chamber
25 will say, "Fine, you will be able to cross-examine on the points of
1 disagreement." But I cannot impose that upon you, but I would do it if I
2 was there, because that is absolutely fair and reasonable to do that. And
3 I also take advantage of the moment to say the same thing with respect to
4 expert witnesses but I will come to that so I don't want to mix things
6 The second category of witnesses were the witnesses on the role of
7 General Galic. As I noted a moment ago, the number of general witnesses
8 appear to have information on the role of General Galic, in particular,
9 specifically on the information communicated to him regarding shelling and
10 sniping. So my question to Mr. Ierace is: Isn't there also an important
11 margin for saving time and calling witnesses who were directly related to
12 General Galic who, who had direct contact with General Galic.
13 MR. IERACE: Your Honour, that is not necessarily an efficient and
14 comprehensive way for the Prosecution to present its evidence in relation
15 to the role of General Galic because there were UNPROFOR officers at a
16 certain level that communicated with General Galic, there were others
17 under that level who communicated with his senior subordinates and the
18 evidence will demonstrate that what was communicated to his senior
19 subordinates as a matter of the organisation of the SRK would make its way
20 up that course to the accused.
21 So in order to present all of the relevant evidence as to what was
22 communicated to General Galic, one must go beyond those senior officers
23 who had direct communication with him to the junior officers who
24 communicated at their respective level within the accused's chain of
1 Having said that, there are a number of Prosecution witnesses who
2 were relatively down the UNPROFOR and UNMO chain of command who the
3 Prosecution proposes to call, but then their evidence often is
4 particularly relevant because of observations they have made of artillery
5 units. For instance, in some cases they have communicated with artillery
6 officers or viewed artillery units firing into civilian areas or had
7 important conversation with -- conversations with lower-ranking but
8 relevant echelons of the accused's staff.
9 Your Honours, it may seem as if I am thwarting your attempts to
10 reduce the witness list. It's simply that I can assure that you that a
11 lot of thought went into this list before we conveyed it to the Registry
12 and I can also assure you that this list is far less than the number of
13 witnesses who were available to us. And, if you like, there has been a
14 cull of witnesses within the OTP before we transmitted this list. The
15 areas that I have identified are the only areas that I could responsibly
16 as the trial attorney propose for further reduction.
17 Could I say one more -- make one further observation as to why it
18 may seem that the list is unnecessarily large? And that is that we are
19 talking not only about a 22-month indictment period, not only about a
20 circumstantial case, but as well, we are talking about criminality which,
21 by it's nature, did not lend itself easily to the identification of the
22 perpetrators. Sniping by its very nature involves the shooter discharging
23 a weapon from a concealed or partly concealed position in an urban setting
24 where the confrontation line often involved the sides being only metres
25 apart. In other words, there is something about the character of this
1 case, about its very nature which requires, in my view, the Prosecution to
2 lead more evidence than one would expect in a different trial where,
3 perhaps, the important events occurred within a period of weeks at one
4 particular place and where identification was not such a critical issue.
5 Thank you, Your Honours.
6 JUDGE RODRIGUES: [Interpretation] Yes, Mr. Ierace. We understand
7 the specificity of the case, but we will have several incidents either of
8 sniping or shelling. The schedules that you filed regarding witnesses for
9 specific events refer to 27 facts concerning victims of snipers and 5
10 incidents of shelling.
11 Regarding the victims of snipers, the Prosecutor plans to call 63
12 witnesses for incidents appearing in the schedules, but 41 witnesses for
13 incidents which are not specified.
14 The Prosecutor also plans to have 120 witnesses for sniping
15 incidents in general. We feel that in view of the information at the
16 disposal of the Chamber, that can hardly be acceptable. You have already
17 understood, Mr. Ierace, that the Chamber is endeavouring to reduce the
18 number and you are trying to maintain the number. What the Chamber would
19 like to have from you, to hear from you is the reasons why you believe
20 because, as I have said, the Chamber can reduce the number, but it must
21 have reasons for doing so and that is why we wanted to devote this hearing
22 to discussing your reasons. Could you explain why you would need so many
23 witnesses on nonspecific incidents in the schedules?
24 It is true and this is also connected to the question that is
25 going to be appealed by the Defence, that the Chamber has admitted certain
1 facts which might corroborate certain standard behaviours, but if I
2 consider these facts together, that is, the sniping and the shelling, I
3 see that for 27 incidents in 1992, you call 5 witnesses; for 1993, 32; for
4 1994, 22. And if we look at the second schedule, we have at least 60
6 If I go back to what I was saying about these umbrella witnesses
7 and specific witnesses, we have a total of almost 120 witnesses for all
8 these incidents. It is true that for each incident, you have one witness,
9 for some you have four, for some again you have three and for other
10 shelling incidents, you have 23 or 10 or 11 witnesses.
11 So regarding the sniping incidents, if one says we have the
12 umbrella witness, we might have one or two additional witnesses but as a
13 rule, to have one witness for each incident, wouldn't that be sufficient?
14 And we could cut almost by half the number. Do you, again I'm asking you,
15 need so many witnesses for non-specified incidents in the annex, in the
17 It is true that I am trying to reduce the number, you are trying
18 to maintain your number but I say again we would like to hear your reasons
19 for this.
20 MR. IERACE: Certainly, Your Honour, and perhaps as an example I
21 will start with schedule sniping incident number 4 where the victim was
22 [redacted]. I will explain why it is that we are calling three
23 witnesses in relation to that incident rather than one. [redacted]
24 was shot and wounded whilst attending -- whilst in his vegetable garden
25 outside his home. He lost -- he became semi-conscious after he was shot
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 and lay on the ground until his wife and daughter and another relative who
2 were in his home noticed that he had not returned to the home and went
3 looking for him.
4 They found him in a semi-conscious state in the vegetable garden
5 and then dragged him to the house. As he was dragged to the house, the
6 sniper fired at the members of his family that were carrying him away.
7 They will give evidence that they saw spurts of dirt around their feet as
8 they dragged [redacted] to the house. So in effect, it is one
9 sniping incident resulting in a casualty, but it is two separate incidents
10 in terms of there being sniping activity and more importantly, perhaps,
11 the evidence that can be given by the daughter and cousin of the bullets
12 hitting the dirt around their feet is strong evidence that the shooting of
13 [redacted] in the first place was quite deliberate.
14 They lived in a rural area just outside Sarajevo. There was no
15 other dwelling within a space of something like 50 metres and no
16 suggestion in the Prosecution case that there could have been someone in
17 uniform or even someone not in uniform or who was a soldier nearby or any
18 other legitimate military target. It therefore makes good sense to at
19 least call two witnesses in that case. I should add that [redacted]
20 was either unconscious or semi-conscious at that stage and he is not in a
21 position to give evidence of the sniping activity as he was being dragged
22 to the house.
23 Your Honours, if you were to eliminate every one of the
24 unscheduled sniping incident witnesses, again, the overall number of
25 witnesses would be reduced by, I think, five. Those five being a
1 particular individual who had the misfortune to be sniped and shelled, I
2 think, five times. In other words, he was wounded five times in the
3 indictment period on quite separate occasions. And the four witnesses who
4 were initially intended for the first scheduled incident which has now
5 become an unscheduled incident. In other words, almost without exception,
6 the evidence of unscheduled sniping and shelling incidents comes from
7 witnesses who were coming here anyway. But again, in response to Your
8 Honours, could I propose this: In the 65 ter summaries, we have given
9 particulars of the unscheduled shelling and sniping incidents. Your
10 Honours will note that some of those incidents are very bare in terms of
11 date, the identity of those wounded and so on.
12 The point I think is well made without many of those incidents in
13 the Prosecution case as to the scale and magnitude of the campaign which
14 the Prosecution alleges. The Prosecution could eliminate a large number
15 of those specific unscheduled shelling and sniping incidents so that when
16 a witness entered the witness box, perhaps to give evidence of a scheduled
17 sniping incident, instead of giving evidence of four other unscheduled
18 sniping and shelling incidents, they give evidence of one or perhaps two.
19 In other words, the -- in particular, the incidents for which there is
20 available only the barest of details would be eliminated. And again the
21 Prosecution's case in terms of evidence in chief would be significantly
23 I'm making the point that it's very difficult to reduce these
24 lists of primary categories and I'm also making the point that the way to
25 reduce the Prosecution case is to eliminate some of the topics of evidence
1 that each of these witnesses are giving. That still seems to me, Your
2 Honours, to be the sensible approach in terms of solving the problem.
3 Thank you.
4 JUDGE RODRIGUES: [Interpretation] Yes. We were speaking about
5 the number of witnesses mostly but it is also true that we need to address
6 the question of the duration of the testimony because the question of
7 shortening the case does not only depend on the number of witnesses, also
8 on the quality of those witnesses and above all, on the time it takes for
9 them to testify.
10 There are a number of suggestions one could make, but of course it
11 is not up to this Chamber to make any decisions regarding the future. We
12 have to take decisions on the basis of the elements we have before us.
13 I should now like to go on, or rather by way of introduction to a
14 specific question, that is shelling incidents. I think that you have also
15 indicated numerous expert witnesses on shelling. Does that -- do you have
16 anything to add in relation to that such as the question of witnesses who
17 had direct experience of those incidents and expert witnesses. So how do
18 you view that, bearing in mind the need to economize?
19 MR. IERACE: Your Honour has observed that there are a large
20 number of witnesses in relation to the shelling incidents, that is, the
21 scheduled shelling incidents compared to the scheduled sniping incidents.
22 The problem which I identified earlier with identifying the sniper applies
23 equally to identifying those responsible for launching a shell. There are
24 experts who are able to determine the direction and in some cases the
25 distance from which a shell was fired and their testimony is essential,
1 indeed critical to the Prosecution case in terms of proving that the
2 origin of the shell for each of the five scheduled incidents was on the
3 Sarajevo Romanija Corps side of the confrontation line.
4 The origin of the shell, even at the time, was sometimes a matter
5 of some controversy and in particular I have in mind the Markale
6 shelling. There was an investigation carried out under the auspices of
7 UNPROFOR to determine the origin of fire but there were some limitations
8 placed on that investigation which in the Prosecution case were critical.
9 It is necessary, in short, to have experts not only those experts,
10 some of those experts who examined material at the time, but in some
11 cases some additional experts to explain to the Trial Chamber the
12 relevance of that earlier material. The Prosecution proposes to call a
13 mortar expert, that is, a member of an armed force who has particular
14 expertise in the area of mortars to explain to the Tribunal, to the Trial
15 Chamber, to the extent it is necessary to understand these things, the
16 basics of the operations of mortars, to explain to the Trial Chamber
17 trajectories, the meaning of trajectories, issues to do with what is left
18 in the crater when a mortar lands, and other aspects which ultimately the
19 Trial Chamber will find very relevant to their task in relation to each of
20 the scheduled incidents and some of the unscheduled incidents.
21 Although the scheduled incidents all concern mortars, the campaign
22 of shelling involved also the use of artillery, howitzers, tanks and the
23 like, and it makes sense to have available, to include in the presentation
24 of the Prosecution case an expert who can explain the limitations on the
25 use of such weaponry, characteristics, and their capabilities, more
2 A third expert who has been identified in the 65 ter material in
3 relation to shelling is a ballistician. A ballistician is an expert who
4 can from a background in physics --
5 JUDGE RODRIGUES: [Interpretation] Excuse me for interrupting, Mr.
6 Ierace. We know that we have these experts on history, psychiatry,
7 artillery, ballistics, arms and ammunition, superior responsibility, et
8 cetera, et cetera, but I think this case is going to become a case for
9 interdisciplinary discussions and that's a good thing, but I'm sorry for
10 interrupting you, I would like to focus the discussion on something else,
11 if possible.
12 What we noted was the envisaged time for the testimony of these
13 experts is frequently too long and the question would be: Would it be
14 possible to shorten their testimony? What we have indicated already in a
15 sense that expert witnesses file a report, the Defence will say whether
16 yes or no they accept the report. If they agree with it, the report is
17 admitted. I think it is under Rule 95(B) I think. If the Defence does
18 not accept it, if it objects, then we have at least two possibilities.
19 One is the one I've already mentioned, that is, the Defence can produce a
20 counter-expertise. Not necessarily of the same length but to contradict
21 the points that it objects to. And the Defence must say, "I don't
22 accept," but that's not the end of it. The Defence also has it give its
23 reasons, and the reasons are very important. And it has been the practice
24 of this Chamber in other cases if a party would say that they do not
25 accept a report, the party does -- which does not accept it has to give
1 the reasons, and the Chamber would say to the party, "Yes. You have to 20
2 minutes to cross-examine expert witness on the points on which you
3 disagree and the reasons why you disagree and object to the report."
4 So we are discussing the possibility of shortening -- of reducing
5 the number of witnesses but also shortening the duration of their
6 testimony. Naturally, as I have said, there is the possibility of
7 limiting the testimony of experts, to restricting it to the
8 cross-examination for a fixed period of time because the Defence does not
9 agree with certain conclusions reached, but the Defence always has the
10 possibility, taking into account that the report is treated as the
11 examination-in-chief. The Prosecutor files the report and that is the
12 examination-in-chief. The Defence can cross-examine, and after that, the
13 Prosecutor can re-examine. I think that that is absolutely fair. There's
14 no prejudice to the rights of the Prosecution or the Defence in that way.
15 So before hearing you, I think we have to have a short five-minute
16 break. Perhaps you can stretch your legs, but it will only be for five
18 --- Break taken at 5.30 p.m.
19 --- On resuming at 5.35 p.m.
20 JUDGE RODRIGUES: [Interpretation] Mr. Ierace, in relation to the
21 question on the expert witnesses and the suggestions of the Trial Chamber
22 to avoid the arrival of expert witnesses in order to shorten the testimony
23 time, could you give us your opinion? And then I'll give the floor to the
25 MR. IERACE: Your Honour, before I give my opinion, I notice that
1 the translation, both on the screen and orally, of Your Honours's words
2 was to "avoid the arrival of expert witnesses." Would Your Honour clarify
3 what you, in fact, said?
4 JUDGE RODRIGUES: [Interpretation] Yes. I would be pleased to do
5 so. That's instead of having the witness come to the courtroom to testify
6 only on the report or not to come at all.
7 MR. IERACE: Your Honour, the proposal that the report be the
8 evidence in chief of a witness, is one which I enthusiastically embrace.
9 The only additional material that the Prosecution would want to lead from
10 the evidence that I can anticipate is evidence in relation to issues which
11 had arisen perhaps during the course of the hearing before the report was
13 However, I anticipate with some of the experts that may not, the
14 tendering of the report as evidence in chief may not avoid them being
15 present for the trial and giving evidence during the trial. There may
16 still be some remaining issues which they are required to address, but
17 certainly the proposal that their report be tendered would dramatically
18 reduce their time in chief, and in some cases, I anticipate there would be
19 no questions at all for the Prosecution to ask in chief.
20 JUDGE RODRIGUES: [Interpretation] Ms. Pilipovic.
21 MS. PILIPOVIC: [Interpretation] Yes, Your Honour.
22 JUDGE RODRIGUES: [Interpretation] Perhaps you didn't hear the
23 question. The question that I asked the Prosecutor was to find a way of
24 reducing the number of witnesses and the time of the testimony, because
25 what I'm saying to the Prosecutor is going to be applicable as well to
1 you, because if the Defence submits Defence expert reports, we'll do the
2 same thing. If the Prosecutor doesn't accept a report the Prosecutor says
3 why, and afterwards, he would have a specific amount of time in order to
4 cross-examine the witness about the questions. And the same thing would
5 apply to the Defence, which could ask additional question in respect to
6 questions which you had raised.
7 This is really a mirror imagine here. The rules that are
8 established apply to both parties. And the questions that I had asked the
9 Prosecutor, that is, where might it be possible to file the report, which
10 would then be admitted, I think that's Rule 95 bis, or 94 bis it might be,
11 but if one party does not accept the report, that party must say why it
12 doesn't, and the party will be given a specific amount of time to
13 cross-examine, and I say cross-examine, I repeat the word, the expert
14 witness in respect of the reasons that the report was not accepted. There
15 might be more complicated situations, or there is another possibility that
16 one could file a counter-expertise on the points for which there is no
18 I asked the Prosecutor to give us his opinion on that issue, and
19 when doing so, I said I would ask the same question of the Defence and
20 that's what I'm doing now.
21 MS. PILIPOVIC: [Interpretation] Your Honour, I was listening
22 carefully to the submissions made by my learned colleague and to what you
23 have just indicated. I have the Rule 94 bis in front of me, which
24 provides that each party should file as soon as possible and not less than
25 21 days prior to the date on which the expert is expected to testify and
1 so on and so forth.
2 You're trying to have the parties behave as economically as
3 possible in the proceedings. However, in view of the complexity of the
4 case, as long as I have not received the reports and opinions of expert
5 witnesses that the Prosecution intends to call, I am not in a position to
6 present the submissions of the Defence in this respect. I do understand
7 what the essence of your question is though.
8 JUDGE RODRIGUES: [Interpretation] All right. That's your answer,
9 and you have the right to answer that way. But the question is almost one
10 of principle, that is to see whether this way of proceeding is fair to
11 both parties. It has nothing to do with a specific expert testimony. But
12 you did give your opinion. That's your answer, and I take it as your
13 answer. Thank you very much.
14 MS. PILIPOVIC: [Interpretation] Thank you.
15 JUDGE RODRIGUES: [Interpretation] We have now reached 92 bis
16 witnesses. We have touched on that issue somewhat already. We know that
17 the Defence has asked to cross-examine the ten witnesses, and we've
18 already spoken about that. We are now turning to the Defence to find out
19 whether it is maintaining this request and should we then conclude that
20 the Defence is contesting all the exhibits with the depositions of those
21 witnesses would tend -- would identify, that is, we could ask the question
22 in more general terms. What are the reasons that you are contesting this
23 type of testimony? Could you tell us that, please, Madam Pilipovic?
24 MS. PILIPOVIC: [Interpretation] Your Honour, after we received
25 the Prosecution brief including the proposal as to which witnesses need to
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 be heard, I have stated the problem that we have, that is, the time period
2 that we had at our disposal and the possibility that we have had to
3 familiarise ourselves with the summaries of witnesses that the Prosecutor
4 intends to call.
5 As a preliminary matter, I have to state the following: You have
6 indeed mentioned a very significant fact, namely that both the Defence and
7 the Prosecution, during their joint work upon my suggestion as to the need
8 to discuss the authenticity of the material -- and the Prosecution was
9 required to make representations in -- pursuant to Rule 65 ter as to the
10 authenticity of the material. So as regards this type of material, the
11 parties have not discussed this particular issue during their contacts.
12 As regards the brief of the Defence which I filed on the 4th of
13 November, I was in a position to review the brief and to come to a
14 conclusion as to which witnesses the Prosecutor intends to call, and in
15 respect to which witnesses they intend to proceed pursuant to Rule 92
16 bis. By analysing the said Rule, we could see that no testimony is
17 provided for, and any filing of the statements in accordance with
18 Rule 92 bis, including the testimony about authenticity of statements, is
19 something that we have stated in our brief. In particular, in point 4 of
20 our brief, we stated that the witnesses that are identified in point 4
21 should testify about the acts and the behaviour of Mr. Galic, that of
22 which he is charged. That is what I was able to conclude by reading the
23 summaries of the witnesses put forward by the Prosecutor and I think that
24 not even the statements from witnesses under point 4 cannot be used in
25 this particular sense because we believe that these witnesses should be
1 speaking, should be addressing the issue of the conduct of General Galic.
2 Rule 92 bis provides for the possibility of testifying about the
3 character of the accused, and in our view, these are two completely
4 different interpretations. The Prosecutor is addressing the acts relating
5 to the conduct of the accused and we believe that it's a very large topic
6 and we don't think the matter should be addressed pursuant to Rule 92 bis
7 and this is something that I emphasised in paragraph 5 of my brief.
8 We have some problems with documentation during our work and my
9 learned colleague has stated what the problem is with the medical
10 documentation. In that sense, we made submissions in our brief, that is
11 why we oppose that the statements of witnesses who will be called to
12 testify to authenticate actually the documents pursuant to Rule 92. We
13 actually want all of those witnesses to be called before the Chamber and
14 subjected to cross-examination by the Defence; however, we intend to
15 cross-examine them only in respect of the authenticity of the relevant
17 In summary, as regards the essence of the Prosecution brief when
18 it comes to the testimony of these witnesses, this is something that I am
19 addressing in my brief and I want the Prosecutor to submit written
20 statements in respect of witnesses who will be called to testify pursuant
21 to Rule 92 bis.
22 JUDGE RODRIGUES: [Interpretation] Madam Pilipovic, I would like
23 to be sure I understand. When you speak about contesting authenticity
24 of the documents, if I could express myself that way, do you mean that the
25 documents were completely fabricated or that the documents did not really
1 respect the usual procedure? Could you tell us what kind of objections
2 you would have in respect of authenticity of documents?
3 MS. PILIPOVIC: [Interpretation] Your Honour, I will tell you
4 right away. The medical documentation was submitted to the Defence in a
5 completely illegible form. From the medical documentation that was
6 provided to the Defence, we cannot see when the injury of the relevant
7 person in respect of whom the document is provided occurred. We cannot
8 even read the name and the surname of the person or the time of the
9 incident or the description of the injury and I am referring to all of
10 these medical documents. My colleagues are aware of this problem and it
11 is probably because of those -- out of those reasons that they obtained
12 statements pursuant to Rule 92 bis and it is in that manner that they seek
13 to prove the authenticity of the medical documentation.
14 Second, as regards the maps that I received from my learned
15 friends from the Prosecution, we dispute their authenticity because from a
16 simple review of such maps, one can conclude that they are not from the
17 relevant times from the period of time which is covered in the indictment
18 which concerns the accused, General Galic.
19 At this point in time and I have already stated that I received
20 the relevant brief together with the attachments on the 6th of November, I
21 cannot say which of the documents should be relevant in this respect. I
22 haven't been able to analyse them all, but at this point in time, my
23 position, Your Honour, is that the Defence disputes the authenticity of
24 the documents; however, we did not address those documents individually
25 together with my colleagues from the Prosecution. Had we been able to
1 address this particular issue, I think the problem would have been less
3 JUDGE RODRIGUES: [Interpretation] There are at least two
4 questions here. One is to know whether you have any originals for which
5 you could make legible copies? Mrs. Pilipovic is saying they cannot read
6 the documents because of the quality of the photocopies, they can't read
7 the dates. What she is saying is that she doesn't have a document,
8 really, that she can contest. It's not really a question of authenticity
9 but rather one of legibility of documents.
10 The other aspect is one of authenticity in respect of the maps.
11 Would you like to add something about that, Mr. Ierace.
12 MR. IERACE: Yes, it's a gross overstatement to say that these
13 documents are illegible as to names and dates and particular incidents.
14 It is in fact the case that they are basically legible. There are
15 occasionally some words which are illegible. I don't know whether my
16 friend intended it, but going on the translation that I've read, the
17 impression conveyed is that they are all illegible and it's far from that.
18 In relation to the maps, I think my friend is referring to a
19 proposed 92 bis statement to the effect that certain maps which the
20 Prosecution proposes to tender come from archives of the -- particular
21 archives and that's the purpose for which the Prosecution seeks a 92 bis
22 statement in relation to the maps.
23 So again, there seems to be perhaps some misunderstanding on the
24 part of the Prosecution's intention.
25 Your Honour has asked me directly whether we have the original
1 medical records. They are with the different hospitals in Sarajevo and
2 we -- the Prosecution has recently arranged for an investigator to return
3 to those hospitals and to obtain, where possible, better copies or
4 additional documents. All of that product will be -- excuse me, Your
5 Honour, was disclosed on the 26th of October, a week or so after we
6 obtained it in Sarajevo. They are the best copies that we can get. And
7 as I said earlier, where there is occasionally a word or a sentence that
8 is not entirely legible, then the usual approach applies. The Prosecution
9 produces evidence, tenders evidence and it's a matter of whether the
10 Prosecution has made out its case.
11 JUDGE RODRIGUES: [Interpretation] So I can conclude then that the
12 Prosecutor has an advantage in respect of reading as compared to the
13 Defence because the Prosecutor has been able to read an understand the
14 documents; is that what I should take from what you said, Mr. Ierace?
15 MR. IERACE: No, Your Honour. The Prosecution has also been
16 unable to read some words in the documentation. The point I'm making is
17 that it is a minor problem, it is not a major problem.
18 JUDGE RODRIGUES: [Interpretation] Very well. In any case, the
19 question about the legibility is important because it means that if the
20 Defence is unable to read the document, it would therefore contest it and
21 a witness cannot be heard under 92 bis and that's very important. I think
22 this is a question that the parties have got to resolve together, at least
23 meet, and they could assist one another in order to reach a conclusion.
24 Can we read what we have or could we get better copies. But the question
25 of legibility is very important and I think the parties have to do that
1 work because the Chamber does not have the document and therefore is not
2 in the position to help you.
3 Yes, sir.
4 MR. PILETTA-ZANIN: [Interpretation] Your Honour, if you allow me
5 very briefly to say a few things about this question of documents.
6 JUDGE RODRIGUES: [Interpretation] Yes, of course.
7 MR. PILETTA-ZANIN: [Interpretation] 65 ter, Rule 65 ter, is the --
8 M, particularly paragraph M is what I'm referring to, the Defence has to
9 receive the documents that you are speaking about and there is an
10 imperative obligation on the Prosecution to submit to the Defence within
11 six weeks, that is a time period which cannot be changed. I had checked
12 with the assistance of your Registry and apparently it appears that that
13 time limit was not respected.
14 When the framework for this trial was set up, that is, when the
15 rules are not respected and are not respected is a problem and when we
16 look under that same rule, sections M and N, I remind you that your
17 Chamber has the power to say that under those circumstances, further to
18 the report to the pre-trial judge, that you simply do not accept some or
19 all of the documents or materials that were submitted by the Prosecutor
20 outside the delay of the time period of six weeks.
21 One of the greatest, the most important interests of justice is
22 not, as you said, is not to waste time or money of the International
23 Community and since the sanctions were provided for in cases which have
24 arisen as today, these have got to be recognised and it has to do with
25 the very principle of the fairness of the trial, and I believe that you
1 were saying that yourself, Your Honour.
2 But we have got an excellent way, it seems to me, to shorten the
3 discussions and a great deal of the trial by applying the solution which
4 has been -- which is applied by Rule 65 ter (N) these words, "the sanctions
5 can be imposed on a party." Thank you.
6 JUDGE RODRIGUES: [Interpretation] Fine. Perhaps we can stay
7 another two or three minutes to finish with the issue of the witnesses and
8 we'll wait until tomorrow to deal with the exhibits list. Tomorrow, we
9 can check on the deadline questions, and if the trial can't open on the
10 3rd of December well, then, it can start on the 6th or the 7th. That
11 would not be a problem.
12 The last question regarding the witness list is the specific case
13 of video conferences. In my mind, I am thinking about three witnesses by
14 video conference, but I have a question about a fourth -- the fourth one.
15 As regards those witnesses that would be asked to testify by video
16 conference or videolink, it seems it might be better to wait until the
17 Chamber hearing the case to choose the moment it judges appropriate to
18 take a decision.
19 But right now we would like to know from the Prosecutor what
20 the reasons are that these witnesses will be presented by videolink to the
21 Chamber because I think these -- we don't have circumstances or reasons
22 that would bring the Prosecutor to using videolinks.
23 MR. IERACE: Your Honour, a number of the witnesses in Sarajevo
24 who could be described as crime-based witnesses such as victims of
25 shelling or sniping in the Prosecution case are in poor health and are not
1 able, because of poor health, to travel to The Hague or have other
2 pressing reasons as to why, in my submission, they should give their
3 evidence by videolink from Sarajevo, such as family responsibilities or
4 age, extreme age.
5 That is the nature of the reasoning behind that request that a
6 number of those witnesses give their evidence in that manner.
7 JUDGE RODRIGUES: [Interpretation] So in your way of thinking, Mr.
8 Ierace -- well, let me start again. Reasoning, as we have been doing,
9 that the Chamber wants to shorten things and you want to keep things as
10 they are, for your case, are these witnesses really essential?
11 MR. IERACE: Yes, they are.
12 THE INTERPRETER: Microphone, please.
13 MR. IERACE: Yes, they are, Your Honour.
14 Your Honour, perhaps I could make a proposal in relation to the
15 concern that you have expressed. Your Honour has said that you intend to
16 sit tomorrow, and my friends have said that they have only had the benefit
17 of 48 hours to consider the material. Could I respectfully suggest that
18 if Your Honour was able to continue the hearing, subject to my friends'
19 timetable on, say, Monday, that would give them an additional precious few
20 days to look at the material and in the meantime, I could review the
21 witness list with a view to shortening the number of witnesses.
22 Because so many witnesses give evidence of more than one critical
23 area is not a function that is easily done. If one reduces a witness
24 because of testimony in one area, there may be implications in a number of
25 others. I make the proposal because it seems to me that within the space
1 of a few days, we may be able to significantly reduce it, and keeping in
2 mind some comments made by Your Honour during the course of this
3 afternoon. So I propose that to Your Honour.
4 JUDGE RODRIGUES: [Interpretation] Very well. Thank you.
5 Madam Pilipovic, would you agree to that suggestion or do you have
6 another suggestion? Would you prefer to sit tomorrow?
7 MS. PILIPOVIC: [Interpretation] Well, if you're asking me, Your
8 Honour, although three days are not going to make much difference, I think
9 I will be much more useful on Monday. It would suit us better on Monday,,
10 and at least I will have an opportunity to review in detail the relevant
11 documents and the brief, of course.
12 JUDGE RODRIGUES: [Interpretation] Just a moment, please.
13 [Trial Chamber and legal officer confer]
14 JUDGE RODRIGUES: [Interpretation] Excuse me, but as you are to
15 take a decision like that is complicated. Complicated, because you know
16 that the courtrooms are very busy so one has to find a slot in order to
17 be able to do that.
18 So I was just told about the courtrooms that we can
19 sit on Monday in the afternoon. If, Madam Pilipovic, that is not useful
20 to you, it might be more -- it might be somewhat useful. But the
21 essential issue here as I've said from the very beginning is that we're
22 now dealing with the Prosecutor's pre-trial matters, and we've got to have
23 all the information to give the Prosecutor to make the efforts to shorten
24 the witness list.
25 As I said, you will be in the same situation because when we get
1 to the Defence pre-trial case, you will have the opportunity to go through
2 this exercise as well.
3 In any case, Mr. Ierace, excuse me for saying that
4 to you. Mr. Ierace, I think that you are sincerely trying to shorten the
5 witness list. What I can tell you is that our intention, that is, the
6 intention of the Chamber, is either to reduce the number of witnesses or
7 perhaps give to you a specific amount of time that you can do what you
8 want with.
9 In principle, we have about 60 days, that is, either you drop
10 the number of witnesses in order to fit into that 60-day figure in order
11 to present your case and then fine, or the Chamber can tell you,
12 "Mr. Prosecutor, you have 60 days to present your case", and the number of
13 days given to the Prosecution out of a sense of fairness
14 would be given to the Defence.
15 That's the direction the Chamber is going to take. That's what we
16 have in mind, but we'll see what the results are, Mr. Ierace. In any
17 case, we're beginning to have some experience in cases here at the
18 Tribunal, and we know that we can -- that we can present the case, even a
19 case of this size, within a 60-day period for hearing. As I said, those
20 are the limits, either you think about a specific time or you think about
21 shortening the number of witnesses on the list.
22 Did you want to add something, Mr. Ierace? But we've got to end
23 our session today.
24 MR. IERACE: Would Your Honour please clarify whether that 60-day
25 period includes the opening and, more particularly, the proposed visit by
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 the Trial Chamber to Sarajevo?
2 JUDGE RODRIGUES: [Interpretation] I think that the commencement
3 of the trial, I'm not sure what you are talking about, but the
4 commencement of the trial will be short because we've got the pre-trial
5 briefs so it's not going to take more than the morning, at least I don't
6 think so. That's my thought. Those days do not include the possible
7 visit to Sarajevo.
8 We still haven't taken a decision on that question but I'm
9 speaking about the 60 days for presenting the case in the courtroom, and
10 in those days I include the opening statement because I think that it
11 should not go on for more than a morning. We've got the pre-trial briefs
12 and almost everything is in them.
13 If there is nothing else to say today, we are going to meet again
14 here on Monday in the afternoon at 2.30. I wish you a good weekend for
15 those people going to work, good work. A correction need to be made, in
16 courtroom number 3 and not here.
17 When he said here, I was actually referring to the Tribunal. 6.14 p.m.
18 --- Whereupon the hearing adjourned at 6.14 p.m.,
19 to be reconvened on Monday the 12th day of November,
20 2001, at 2.30 p.m.