1 Friday, 22 March 2002
2 [Status Conference]
3 [Open session]
4 --- Upon commencing at 3.00 p.m.
5 JUDGE MUMBA: This afternoon we have a Status Conference in this
6 case to mainly see how the pre-trial stage is going. I note that the
7 accused are on provisional release, and the Trial Chamber did receive a
8 report from the relevant authorities in their country that compliance with
9 the Trial Chamber's orders has not been a problem with all the three
10 accused. So the position as of now is quite satisfactory.
11 I haven't asked about the parties because I assumed that they are
12 still the same, but I have noticed some new faces. Maybe I can have a
13 formal presentation.
14 The Prosecution?
15 MR. WITHOPF: Good afternoon, Your Honour. Good afternoon,
16 Counsel. For the Prosecution appear Mr. David Re, trial attorney;
17 Mr. George David Hackney, legal officer; Ms. Diana Dicklich, case manager;
18 and myself, Ekkehard Withopf, acting senior trial attorney.
19 JUDGE MUMBA: Thank you.
20 The Defence.
21 MS. RESIDOVIC: [Interpretation] Good afternoon, Your Honour.
22 Edina Residovic, attorney at law from Sarajevo, counsel for General Enver
23 Hadzihasanovic, together with my co-counsel, my colleague, Stefane
24 Bourgon, an attorney at law from Canada.
25 MS. VIDOVIC: [Interpretation] Good afternoon, Your Honours.
1 Vasvija Vidovic, attorney at law from Sarajevo, together with Mr. John
2 Jones, attorney at law from Great Britain, Defence counsel, together with
3 my co-counsel, for General Mehmed Alagic.
4 MR. IBRISIMOVIC: [Interpretation] Good afternoon, Your Honour. My
5 name is Ibrisimovic, and together with co-counsel, we represent Amir
7 JUDGE MUMBA: Thank you. I welcome the new co-counsel, Mr.
8 Stefane Bourgon, to these proceedings.
9 I received a report from the Senior Legal Officer on the
10 discussions that went on during the meeting I think yesterday on the
11 preparations for trial. There are a few things that maybe we can discuss
12 briefly during this Status Conference.
13 I note that the Trial Chamber is still considering some motions
14 which have been filed, one of them dealing with the form of the amended
15 indictment, and the Trial Chamber will be issuing a Scheduling Order soon
16 after the decision has been handed down. We also have matters from the
17 report dealing with disclosure: compliance with Rule 66(A)(ii) and Rule 92
18 bis, compliance with Rule 66(B), Rule 66(C), and also Rule 67 and Rule
19 68. I note especially with regard to Rule 92 bis that the Prosecution is
20 going in the right direction, having some Prosecution witness statements
21 recorded. This does definitely help with scheduling the trial.
22 I wanted to find out whether there are any problems at this stage
23 on the disclosure stage with the documents and also with the Sarajevo
24 collection. There appears to be a satisfactory report.
25 Is there anything the Prosecution would like to raise?
1 MR. WITHOPF: May I first address the issue regarding the
2 submissions regarding challenges to jurisdiction if I'm allowed to?
3 JUDGE MUMBA: Yes.
4 MR. WITHOPF: I understand that you have been comprehensively
5 informed by the Senior Legal Officer about the discussions held yesterday.
6 JUDGE MUMBA: Yes.
7 MR. WITHOPF: It was again a very productive meeting in detail
8 discussing all issues arisen in the past.
9 With regard to the timetable submissions to the challenges to
10 jurisdiction, I would like to make some principal remarks.
11 The decision on the challenge to jurisdiction, in particular
12 regarding the applicability of Article 7(3) in a non-international armed
13 conflict is crucial for the future proceedings in this case. Significant
14 portions, I repeat significant portions of the amended indictment depend
15 on this decision.
16 Logic requires to get a decision on this issue prior to any
17 further movement in this case, and it also can be anticipated that the
18 party whose submission will not be granted will appeal the decision.
19 Realistically, a final decision of the Appeals Chamber cannot be expected
20 prior to late summer 2002, maybe even later. That's reason enough to
21 speed up things and to get the ball rolling.
22 The fact that this issue is pending has a serious impact on the
23 case preparation on the side of the Prosecution in many regards. I want
24 to provide Your Honour only with two significant examples. Following our
25 obligation under Rule 92 bis to speed up proceedings, we are currently
1 planning a mission to take the declarations, to take the Rule 92 bis
2 declarations involving staff of the OTP, involving staff of the Registry,
3 involving national authorities. This causes a lot of expenses, and the
4 Prosecution is reluctant to spend a lot of UN money without knowing
5 whether the underlying relevant portions of the amended indictment will
7 I will provide you with a second example, and this one is as
8 serious as the first one. Currently we are establishing contact to an
9 outside military expert in order to get his assistance as a Prosecution
10 military expert. Again, to hire him causes a lot of expenses that could
11 be completely or to a high percentage a waste of money if the decision of
12 the Trial Chamber or the Appeals Chamber would be against the
13 Prosecution's position. To not have a final decision on this issue has
14 obviously a very practical implication.
15 Therefore, the Prosecution proposed, as you know, 28 days for each
16 party to file, to concurrently file their submissions and ten days for
17 cross-responses. This seems to be reasonable and more realistic than the
18 Defence proposal, 60 days for submission, 6-0 days for submissions for
19 each party and 15 days for cross-responses.
20 The main issue, as you know, is applicability of Article 7(3) on
21 non-international armed conflict. That's an old issue. This issue was
22 first raised by the Defence in their joint preliminary motion on the
23 original indictment. This motion has been filed the 8th of October,
24 2001. Since then, five and a half months have passed by. The Defence
25 knows since 17th December last year that this issue has to be addressed at
1 least in a pre-trial brief. Again, three months passed. This has been
2 sufficient time for preparation.
3 The Prosecution has used this time. The Prosecution would be in a
4 position to file its submission within 21 days starting from today. The
5 submission should be filed concurrently. That's the position of the
6 Prosecution. Otherwise, there would be further delay in the proceedings
7 and there would be an undue advantage for the Defence if they were allowed
8 to respond to the Prosecution's submission again.
9 Yesterday --
10 THE INTERPRETER: Counsel is kindly requested to slow down,
11 please. Thank you.
12 MR. WITHOPF: I apologise. With regard to the page limits, we
13 yesterday discussed to some length. Obviously ten pages are not
14 sufficient. An agreement has been reached, at least I understand an
15 agreement has been reached amongst the parties that both parties should be
16 allowed to file 50 pages each.
17 I want to stress that if the Defence --
18 JUDGE MUMBA: Fifty pages, 5-0.
19 MR. WITHOPF: Five zero.
20 JUDGE MUMBA: Each.
21 MR. WITHOPF: Each.
22 JUDGE MUMBA: Each defendant.
23 MR. WITHOPF: No. Yeah, each party.
24 JUDGE MUMBA: Each party.
25 MR. WITHOPF: Each party. However, the Defence, at least
1 yesterday, hadn't made a final decision whether they want to file a joint
2 submission or three separate submissions. If the Defence intends to
3 follow the line of separate submissions, the combination, the combination
4 of these submissions, for obvious reasons, should not exceed fifty, 5-0
5 pages, meaning each party works under exactly the same page limitation.
6 There's another regard with the challenges to jurisdiction. That
7 is the issue of oral hearing. The Prosecution is of the opinion that an
8 oral hearing is not necessary, considering that this would cause a
9 repetition, only a repetition of the legal arguments exchanged in the
10 submissions of the parties and would again delay proceedings.
11 Last issue in this regard, that's the issue of having amici curiae
12 invited to provide their submissions. That has been a consideration by
13 the Presiding Judge following a proposal by the Defence, a proposal by the
14 Defence to invite the permanent members of the Security Council.
15 The Prosecution does not take a specific position in this regard.
16 However, considers the use of amici curiae a potential reason for again a
17 significant delay in the proceedings. In addition, regarding the
18 permanent members of the Security Council as proposed by the Defence, the
19 intention is only one source amongst others with regard to the
20 interpretation of Article 7(3) and its applicability. We also have to
21 rely on the jurisdiction of the ICTY. The Defence argument, therefore, is
22 not convincing to invite them.
23 If I may summarise the Prosecution's position, things can only
24 speed up by the Trial Chamber. It's up to the Trial Chamber to get the
25 ball rolling. Not having a final decision on the issues involved
1 seriously hampers the further proceedings. Again, I want to stress the
2 Prosecution is ready, is ready to file a submission on short notice,
3 meaning 21 days from today on. Thank you.
4 JUDGE MUMBA: Thank you. Any response or submissions by the
5 Defence of the first accused?
6 MS. RESIDOVIC: [Interpretation] Yes. Thank you, Your Honour. I
7 probably got an interpretation that is not quite accurate so I would like
8 my learned friend Mr. Withopf to confirm to me that he said that on
9 account of jurisdiction, we are talking about the applicability of
10 Article 7(3) in "internal conflicts," because the interpretation I got was
11 in "international conflicts." Did I understand you correctly, sir?
12 MR. WITHOPF: What I said, Ms. Residovic, I said, "in a
13 non-international armed conflict."
14 MS. RESIDOVIC: [Interpretation] Thank you very much. That's what
15 I thought you meant, but the interpretation I got was somewhat different,
16 so I want to avoid any misunderstanding. I would also like to thank our
17 colleagues from the OTP for having clarified this matter entirely to you,
18 Your Honour, including that which the Defence believes, but nevertheless,
19 I would like to say a few words about what we actually think. When I say
20 "we," I'm referring to all three Defence teams, because we have identical
21 views with regard to this particular matter.
22 First and foremost, we believe that the question of jurisdiction
23 is of great importance for each and every one of our clients. Not only
24 that, though; we think that the applicable law in non-international
25 conflicts in relation to Article 7(3) is of general interest for this
1 Tribunal and of general interest for the application of international
2 humanitarian law. Therefore, it is our position that we should devote due
3 and considerable attention to this matter, and at this point the Defence
4 is working separately on looking into customary law with regard to this
5 particular matter.
6 In our motion, several legal issues were raised, and we will try
7 to present existing law to the Trial Chamber, the law that was in force
8 when the alleged crimes were committed. We believe that the Trial Chamber
9 should rule, in a decision of their own, on an alternative possibility,
10 namely: If the Trial Chamber believes -- or rather, if we decide to file
11 a joint motion, because we are going to have identical views with regard
12 to each and every one of the issues raised, then the Defence fully agrees
13 that we have the same number of pages for preparing this material as the
14 Prosecutor did, that is to say, 50 pages, if we decide on a joint motion
15 of this nature. However, if we were to submit separate motions to the
16 Trial Chamber, then we believe that compiling separate motions requires a
17 few formal yet necessary pages, and therefore, we think that the Trial
18 Chamber should rule that each and every one of the parties should compose
19 a paper on 25 pages respectively, that is to say, a total of 75 pages. I
20 think that you understand the position of the Defence. Therefore, it
21 would be our request for your ruling to make it possible for us either to
22 submit a joint motion of 50 pages or separate submissions with 25 pages
23 respectively for each and every one of the accused, a total of 75.
24 Within the time frame that we were considering in terms of
25 compiling this motion and carrying out the necessary preparations, our
1 proposal is that, if we were to work as hard as possible and to do our
2 very best, to make it possible for us to have either 30 days after the
3 indictment enters into legal force or a total of 60 days. Naturally, this
4 deadline would go for the other party as well. Both parties would, after
5 that, have the obligation to respond within 15 days.
6 In respect of this particular matter, and for the above-mentioned
7 reasons, we believe that it would be necessary to have an oral hearing.
8 As we have already said, these are questions that not only of interest to
9 these parties that are here in this case; these are general legal issues
10 that this Tribunal is indeed interested in.
11 As for an amicus curiae, my learned friend from the Prosecution,
12 Mr. Withopf, presented one of the positions presented during our meeting
13 yesterday. That was not our position, though. We did not think that we
14 had to call upon the permanent members of the Security Council. That was
15 one of the opinions presented. Our position, though, is that the Court
16 should pursue its own decision, as it will do, and if the Court believes
17 that they should avail themselves of their authority to call in an amicus
18 curiae, we have full trust in this kind of a decision of the Trial
19 Chamber. However, it is not for us, the parties, to make suggestions to
20 this effect to the Trial Chamber as to whether they are going to call in
21 an amicus curiae or not.
22 Since you also referred to the Sarajevo collection, I think that
23 the Prosecution gave us access to most documents, or rather, all documents
24 from the Sarajevo collection, and also selected military maps, except for
25 one, and I believe that they will make it available to us today. However,
1 we believe that the Prosecutor is duty-bound in respect of this issue to
2 check audio and video cassettes and to make accessible to the Defence that
3 material which would have to do with the applicability of Rule 68 in
4 relation to what you have just mentioned.
5 So this is the position that we have with regard to these
6 particular matters. Thank you.
7 JUDGE MUMBA: Thank you very much. The Trial Chamber will
8 consider the submissions of the parties. The reason why some of these
9 motions, especially the one dealing with jurisdiction, is still under
10 consideration is that you will appreciate that Trial Chamber II is the
11 only Trial Chamber which has been divided into three sections, without
12 corresponding legal support teams, so it has been rather heavily weighted
13 down with work while waiting for legal support to be appointed. But the
14 situation has now improved, so the motions should -- the decisions on the
15 motions should be moving much faster, as from next week especially.
16 The matters raised regarding page limits, I think the Trial
17 Chamber will give due consideration to what the parties have said, and we
18 will be issuing a written decision in due course.
19 It is important, though, to comply with the practice directions;
20 otherwise, there would be no use for the Tribunal to issue practice
21 directions if at each stage parties feel they cannot conform.
22 On the oral hearings, during the pre-trial stage it is normally
23 the practice of the Tribunal, or rather, the Trial Chambers, to have
24 written submissions as much as possible because of the courtroom heavy
25 schedule. We have only three courtrooms and we are now having a lot of
1 trials. And when the Appeals Chamber is sitting, they also require a
2 courtroom. So during the pre-trial stage, as much as possible, parties
3 should comply with written submissions. And in fact, there is a ruling, I
4 think in Brdjanin and Talic, where the Trial Chamber did say reasons
5 should be given why written submissions are not sufficient by any party
6 who is applying for an oral hearing. Otherwise it would be a waste of
7 court time, when the written submissions are sufficiently argued, for the
8 Trial Chamber to have oral hearings. The experience has been what the
9 Prosecution has alluded to, that usually it's a repetition of what is
10 already in writing. There is nothing actually to stop a party from
11 including every possible point they would like the Trial Chamber to
12 consider in their written submissions. And in any case, the written
13 submissions, except in situations where they are confidential, they are
14 always in the public domain so that people are able to follow the
15 arguments of the parties and are able to follow the reasoning of the Trial
16 Chamber once a written decision is given. It saves on a lot of court
18 On the issue of whether or not amicus curiae should be requested,
19 this is a matter which very much depends on how the Trial Chamber will see
20 the options as submitted by the Defence, and there is nothing to stop the
21 parties to submit, under every stage, as to what was discussed by the
22 members of the Security Council at the relevant time, on the relevant
23 issues, or indeed any other body of the United Nations, to bring the
24 matters to the attention of the Trial Chamber; otherwise, the Trial
25 Chamber would be in a position to decide on this one.
1 On the Rule 68 and the Sarajevo collection and the video and the
2 other evidence which is not in paper form, I'm sure the Prosecution, in
3 keeping with the provisions of Rule 68 and according to the submissions of
4 the Defence, are in agreement that they have this obligation. And on this
5 one, I think there will be a time limit for the Prosecution's obligations
6 under Rule 66(A)(ii), and the Trial Chamber is of the view that we may be
7 issuing an order in May of this year.
8 On the motion regarding co-counsel, the assignment of co-counsel,
9 the Trial Chamber is issuing a decision. I think latest by Tuesday next
10 week, a decision should be there. But I'm of the view that this shouldn't
11 hold the pre-trial stage at all, because we comply with what is in
12 position as of now and that the co-counsel is on the case.
13 On the submissions that -- the motion on jurisdiction, which has
14 to be decided by the Trial Chamber, that a lot hinges on this as to what
15 steps the Prosecution have to take in the preparation of the case, that
16 has been noted, and as I explained earlier, the Trial Chamber is now
17 having sufficient staff, so it should be able to decide very soon.
18 I also note that in situations where the accused are on
19 provisional release, there is a tendency sometimes not to comply with the
20 Rules on pre-trial stage. I wish to point out that it is important to
21 comply with the Rules on time limits with a pre-trial stage, because even
22 though it appears as of now that all Trial Chambers are having trials,
23 some of the trials may be shortened and the Trial Chamber may be available
24 for the trial to start. So in my view, it isn't a good practice to keep
25 stretching the time limits and also to keep stretching the pre-trial stage
1 unnecessarily too long. It's obvious that it costs the Tribunal a lot of
2 money for every sitting, and a lot of -- and for every sitting and every
3 stage that the parties take.
4 On the issue of the trial date, that is a matter that will be
5 decided by the Trial Chamber once the motions have been decided and the
6 major steps in the preparation have been complied with. We may be looking
7 perhaps towards the end of this year, because from the records of the
8 Trial Chamber, some cases may be coming to an end; the trials may be
9 completed. Otherwise we may be looking at early next year. I'm aware
10 that in the order on provisional release, there is an aspect of the
11 accused reporting to the Tribunal some 60 days, I think, before the date
12 of trial. I don't think that should be a problem, because the Trial
13 Chamber can always change the days when the accused should report before
14 the trial date. And in any case, it may not necessarily be Trial Chamber
15 II which will take this trial. Any other Trial Chamber which may be ready
16 can take the trial, and it will be up to that Trial Chamber to discuss
17 with the parties as to when the trial can start.
18 Although the discussion on pages seems to have been quite a matter
19 with which the parties are concerned, I don't think I would like to give
20 the number of pages right away. I would leave it and discuss it with the
21 Trial Chamber, since the motions are under discussion, and see how best to
22 deal with this, how many pages each party should have. In the event that
23 it is a joint submission by the Defence or in the event that it is a
24 separate submission, the Trial Chamber is very much aware that although it
25 is going to be a joint trial, each accused person has his rights which
1 must be complied with and which must be considered separately as much as
2 possible. So the Trial Chamber will be very much aware that whatever
3 decision we come up with does not undermine the rights of any of the
4 accused to fully debate their case.
5 There is another point on making it -- asking the parties to make
6 it possible to have a list of agreed facts. I think that again can only
7 be seriously debated once the decision on the motion has been issued by
8 the Trial Chamber.
9 I don't see any other matters that are remaining except if the
10 Prosecution wishes to raise any matter.
11 MR. WITHOPF: Just one issue, Your Honour, just for
12 clarification. You just mentioned that you will, with regard to Rule
13 66(A)(ii) issue an order in May. Does that mean the time limit is in May
14 or does it mean the order will be issued in May, indicating a time limit?
15 JUDGE MUMBA: The order will be issued perhaps for the time limit
16 to start running as from May.
17 MR. WITHOPF: Since there's one facet to be considered regarding
18 the Rule 66(A)(ii) disclosure, and that's the issue that we also have to
19 provide to disclose the Defence previous prior statements of our witnesses
20 we want to use.
21 The system-wide searches have been initiated. However, they have
22 been put on hold. We only resume end of April. The results can only
23 being expected at the end of May. Obviously there has to be an
24 examination to be made that would cause some delay, a few weeks' delay.
25 Realistically, we would only be in a position to disclose prior statements
1 around end of June, beginning of July.
2 JUDGE MUMBA: All right. Yes, that will be taken into
4 Any other matters the Defence wishes to raise during this Status
5 Conference? Yes?
6 MS. RESIDOVIC: [Interpretation] Your Honour, first of all I would
7 like to thank you for stating in public that our clients are complying
8 fully with all the Court orders in accordance with the decision on their
9 provisional release.
10 And secondly, I would like to say that we are looking through
11 public documents in three trials, and these are voluminous materials. The
12 Registry is providing significant support, but we are all in different
13 locations, and we appreciate the Court's understanding in view of the fact
14 that we cannot prepare so fast. So the dates that Your Honour has stated
15 for the beginning of the trial are realistic.
16 JUDGE MUMBA: All right. That is noted.
17 The Trial Chamber appreciates the cooperation that is being
18 demonstrated by the parties to this case inasmuch as the discussions with
19 the Senior Legal Officer show. I'm sure that everybody's doing their
20 level best so that the pre-trial stage can be completed as soon as
22 The Trial Chamber, on its part, will deal with the matters that
23 are before it as soon as possible so that the stages are not -- the
24 pre-trial stages are not delayed.
25 So I take it there are no other matters that the parties wish to
1 raise, and we shall adjourn the Status Conference at this time until next
3 --- Whereupon the Status Conference adjourned
4 at 3.33 p.m.