Tribunal Criminal Tribunal for the Former Yugoslavia

Page 1

1 Thursday, 28 April 2005.

2 [Status Conference]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 4.02 p.m.

6 JUDGE LIU: Good afternoon, ladies and gentlemen. Call the case,

7 please, Madam Court Deputy.

8 THE REGISTRAR: Good afternoon, Your Honour. Case number

9 IT-01-48-T, the Prosecutor versus Sefer Halilovic.

10 JUDGE LIU: Thank you very much. May I have the appearances,

11 please, for the Prosecution?

12 MR. WEINER: Philip Weiner for the Prosecution. To my left is

13 Sureta Chana, to my far left is David Re, and to my left is case manager

14 Sandra D'Angelo.

15 JUDGE LIU: Thank you. And for the Defence.

16 MR. MORRISSEY: Thank you, Your Honour. Peter Morrissey

17 appearing with Mr. Halilovic. With me, Mr. Mettraux, counsel and also

18 our legal assistant, Mr. Cengic, is present, as is investigator Medina

19 Delalic.

20 JUDGE LIU: Thank you very much. Mr. Halilovic, can you hear the

21 proceedings in a language that you understand?

22 THE ACCUSED: [Interpretation] Yes, Your Honour, I can.

23 JUDGE LIU: If there is any problem during the proceedings please

24 inform me as soon as you can.

25 THE ACCUSED: [Interpretation] Thank you, I will.

Page 2

1 JUDGE LIU: How about your stay in the detention facilities. Do

2 you have anything to complain?

3 THE ACCUSED: [Interpretation] I have no complaints and no remarks

4 in that regard, thank you.

5 JUDGE LIU: Thank you very much. You may sit down, please.

6 Well, this is a status conference in accordance with Rule 65 bis

7 of the Rules of Procedure and Evidence and also at the request of the

8 Defence. The purpose of this status conference is to hear the parties on

9 certain issues and this Bench will see whether we could be of any

10 assistance to both parties.

11 We are very glad to know that the parties had the opportunity to

12 meet with each other on certain matters that are still pending, and on

13 some issues there are some positive results.

14 But anyway, on our part, we also have some issues that we would

15 like to discuss with the parties. I believe the first matter is about

16 the order of the witnesses and the future proceedings of this case. We

17 might have a rough idea of planning for the future proceedings.

18 Mr. Weiner? I believe that in your letter to the Defence, you

19 mentioned the witness lists.

20 MR. WEINER: Yes, Your Honour, number 11.

21 JUDGE LIU: Yes.

22 MR. WEINER: What we foresee right now is the first witness would

23 be Ramiz Delalic, followed by Professor Angelinovic [phoen], Bakir

24 Alispahic, and then we had Enver Mujezinovic and I indicated that we were

25 still making a decision whether he's still needed since we are not using

Page 3

1 the ten or so intercepts.

2 Since we are not using all the intercepts, other than those that

3 can be authenticated by one of the parties in each of the intercepts,

4 there is not really any need for Mr. Mujezinovic. So right now, the

5 order would be Delalic, Angelinovic, Alispahic. And we are trying to, as

6 you see also in number 10, reschedule General Ridgeway at this time.

7 JUDGE LIU: I see. Are there any possibility for us to hear Mr.

8 Ridgeway as early as possible?

9 MR. WEINER: Do you mean prior to May 11th?

10 JUDGE LIU: Well, any time. What about his situation at this

11 moment?

12 MR. WEINER: Mr. Re has been dealing with that issue but we could

13 contact him again. But Mr. Re has been in contact with his office.

14 JUDGE LIU: We are a little bit worried that we should hear Mr.

15 Delalic first, because we have to face a weekend. I want to hear Mr.

16 Delalic maybe in a whole period of time for the whole week.

17 MR. WEINER: We were hoping to bring the doctor in, Dr.

18 Angelinovic, but he cannot come to court during that week, the earlier

19 week of the 11th. He has meetings in Zagreb on the previous day and it

20 wouldn't be possible to get him in. We could try and see if we can get

21 Bakir Alispahic in to testify. Some of the problem would be is we've

22 already making -- we are already putting together the necessary

23 requirements to bring him here, including having him get a visa and we've

24 notified them. I'd have to see now if we could switch with

25 Victim/Witness too with regard to Mr. Delalic. That could be a problem.

Page 4

1 JUDGE LIU: How about that military expert? Is there any

2 possibility for us to hear him in the week of 11th?

3 MR. WEINER: Once again, it's a scheduling issue. He is possibly

4 available on the 9th or he was previously available on the 9th.

5 JUDGE LIU: Is it possible for to us sit on the 9th?

6 MR. WEINER: I'm not sure of the schedule of the Defence.

7 JUDGE LIU: This is just a tentative suggestion. I'm not quite

8 sure at this moment but we are under the very tight time schedule. I

9 believe that the Defence case -- the Prosecution case has to put to an

10 end sometime in the early June, and which is still three or four weeks

11 there, since those witnesses are important. And there is a possibility

12 to finish the testimony of those witnesses before the 3rd of June; do you

13 think so, Mr. Weiner?

14 MR. WEINER: It's only four witnesses. I don't see any reason

15 why we couldn't.

16 JUDGE LIU: It's very difficult to predict. Yes.

17 MR. WEINER: We would hope so.

18 JUDGE LIU: Yes. Any suggestions and comments, Mr. Morrissey?

19 MR. MORRISSEY: Yes, Your Honour. In terms of witness time, we

20 think that would be achievable that those witnesses would be finished by

21 the 3rd of June. However, there are some other matters that have to be

22 raised in relation to them. Dealing first of all with the expert, Your

23 Honours, we at the moment do not know what the position is about this

24 expert. If the current expert report was sought to be tendered, we would

25 object to it. There are a number of bases for doing so. Some of them

Page 5

1 have complexity so we would need to have time to draft that objection,

2 but it's a matter that won't be a light matter that can be dealt with in

3 the running. It goes to the question of what sort of expert evidence can

4 be given including evidence as to the ultimate issue of a case and that's

5 what the current report does do.

6 So that's an issue we need notice about. And at this stage, we

7 are not sure what the Prosecution's position is about that expert,

8 whether or not they were proposing to tender the report, if not to tender

9 the report, what form of evidence was sought to be led from that witness,

10 and from -- and on what basis. We don't know the answers to that

11 question and we need to know it now. That's part of the reason why we

12 were very keen to have this conference because we need to know what the

13 Prosecutor's plans are and we need to know that in some detail. And in

14 particular, we need to know whether there is additional or different

15 evidence to be called by that person because he's an expert and because

16 we need therefore to be briefed by our own experts and to prepare to

17 cross-examine somebody in a specialist field. We can't do that if we are

18 told that at short notice, nor can the Tribunal adequately prepare. So

19 that's something in my submission that should be dealt with today, and

20 that's --

21 JUDGE LIU: Let's deal with it one by one.

22 MR. MORRISSEY: Yes, certainly.

23 JUDGE LIU: I believe that the Prosecution mentioned very clearly

24 that the expert witness will not be filing a new expert report.

25 MR. MORRISSEY: Well, that's correct. In that situation, Your

Page 6

1 Honour, we need some sort of a -- we don't know what he's going to say,

2 because his previous report, it would be common ground, was based -- more

3 than 50 per cent of it was based on materials that came from witnesses

4 who aren't being called any more. Or material which may not be admitted

5 into evidence by Your Honours pursuant to other evidentiary applications

6 that there are.

7 So it needs to be revealed what this witness is going to say and

8 we have no idea what he's going to say outside of that report, the

9 contents of which in many ways would be challenged by the Defence if it

10 had been sought to be led. So we need to know that because we don't want

11 to object on a question-by-question basis to an expert, Your Honours.

12 That's destructive and distracting and makes it hard to follow exactly

13 what the witness is attempting to communicate, some of which might be of

14 use to the Tribunal. And therefore, we need a clear indication and we

15 want it to be by way of a report. We are not in a position to demand

16 anything. But the Defence can't be exposed to an expert saying what we

17 expect to be something quite new at short notice.

18 Frankly, Your Honours, if we get prompt notification, as we have

19 been saying for about two months now, if we get prompt notification about

20 this, we will meet any deadline the Court sets, including the 9th of May

21 but we have to be given the information and we have to be given it now.

22 Frankly, because Your Honour, it just puts us in an impossible

23 position. Otherwise we can't meaningfully cross-examine an expert unless

24 we have a proof in advance of what we are going to say and proofing notes

25 two days before cannot be an appropriate way to proceed with an expert.

Page 7

1 Therefore, that's what we ask and we ask that the Prosecution

2 clarify exactly what it is that the witness is going to say and give us

3 that in sufficient particularity to allow us to deal with that matter by

4 means of our own experts and to consider whether we have challenges to

5 the admissibility or use of such evidence or whether we are quite

6 satisfied with it. That needs to be something that -- in my submission,

7 that could be scheduled today, that the Prosecutor provide by a certain

8 data a report or other information to the Defence indicating what this

9 witness is going to say. Because right now, we don't know.

10 JUDGE LIU: Yes. Yes. I quite agree with you on this matter,

11 but, however, from the previous practice concerning the testimony of the

12 expert witness, it will be very simple matter if I could put it in this

13 way. That is, the party calling the expert witness should tender that

14 report, and during the direct examination the party should ask some

15 questions outlining the main points in that report, which will last for

16 about 30 or 40 minutes. It will not last long. Then the other party has

17 the right to cross-examine that witness in full because, as an expert, he

18 will testify to something beyond the common knowledge -- I mean beyond

19 the knowledge of the counsels and the judges in a specific areas. I

20 think this is the normal practice for the testimony of an expert witness.

21 But I don't know how the Prosecution would like to conduct with

22 this expert witness. Yes, Mr. Re?

23 MR. RE: The Prosecution has, as I'm sure Your Honour

24 appreciates, had some difficulty because of the -- with the expert in the

25 time frame because of the reduction in the number of witnesses in

Page 8

1 December, and scheduling the witness in. He's an extremely senior

2 British general. He's actually the head of British military intelligence

3 and is an extremely busy person. We have been in contact with his office

4 trying to fit him in on a number of occasions but the trial has gone

5 longer than we anticipated. And we did want to have General Karavelic

6 give his evidence at the beginning, but we accommodated both the Defence

7 and General Karavelic and didn't call him until last week. So we weren't

8 really in a position to schedule General Ridgeway in until after that.

9 And the problem was Mr. Karavelic testified for three weeks in

10 Hadzihasanovic and required extra time. That just put everything -- it

11 just moved everything aside.

12 The problem General Ridgeway has is there was probably only one

13 day he could have testified in the first few weeks of May and that was

14 the 9th of May, and we were ready to try and schedule him in but then the

15 scheduling order was made for the Wednesday. So we didn't make an

16 attempt to go and see him. What we have to do is go and see him and in

17 the light of the change in the case, or the -- the evidence, as opposed

18 to the evidence he was given originally, to ask for his opinion on that.

19 Now his opinion won't, as far as we anticipate, be vastly different

20 because we are asking him to comment upon the duties of a commander in a

21 given situation and what the commander should have done and except in

22 this scenario what the evidence is in our case the commander actually did

23 do; has the commander complied with his duties under international

24 humanitarian law. That is already in his existing report and it's a

25 matter of modifying orally some parts of that report. And of course, we

Page 9

1 won't rely on some parts of that report. And of course after having

2 spoken to the general we will provide the Defence with full notes of his

3 anticipated evidence without him having to do another report which, quite

4 frankly, he just can't do. He's not in a position to write another

5 report.

6 So it's a matter of fitting him in and our current information is

7 he's just not available in the next few weeks after that. So we are

8 waiting for another day, hopefully at the end of May, in which we could

9 get him to testify. Presumably only for a day.

10 My learned friend also mentioned at one point the ultimate issue.

11 I think Your Honour has moved to that or touched on that. There is no

12 rule before this international Tribunal in relation to military experts

13 not expressing an opinion as to the ultimate issue. That is whether the

14 accused has complied or fulfilled his duties, because that's the function

15 of the expert, to express an opinion based upon assumed evidence which

16 will guide the Trial Chamber. It's the practice as far as we know in our

17 submission in all the other trials and it shouldn't be any different

18 here.

19 So that's the current situation. Unfortunately, there has to be

20 some flexibility here when you're dealing with someone of that level of

21 seniority. So we can't tell you today an exact date but we can certainly

22 work with the Defence as to the amount of time they need but in our

23 submission it shouldn't be too long because the issues are fairly clear.

24 We just don't anticipate any surprises in what he'll say.

25 JUDGE LIU: We just want to be informed as early as possible.

Page 10

1 The first issue is whether he will be able to testify on the 9th of May.

2 If not, what is the other time? I think a time has to be set up for that

3 specific days, and at least there should be a week beforehand to inform

4 the Bench and the other party.

5 MR. RE: That would cut out the 9th of May. We wouldn't -- we

6 wouldn't have the full week. That's the Monday, the 9th. I'll make some

7 more inquiries this afternoon. I can notify Chamber's legal officer and

8 Defence this afternoon.

9 JUDGE LIU: Thank you. Thank you very much. Is it satisfactory

10 to your request?

11 MR. MORRISSEY: I'm sorry to say, Your Honour, it's very

12 unsatisfactory on a number of grounds. The first one is that, as my

13 learned friend may know, there is quite a lot of authority making it

14 clear that the ultimate issue, opinions are not to be given in this

15 Tribunal or anywhere else. We will deal that later on in motions in we

16 have to but that submission is more smoke, in my submission.

17 Secondly, we are not to be told that one day's cross-examination

18 is sufficient. We are not undertaking to go for one day. We may have to

19 go for more. We may have to go for less. But issues of admissibility

20 may have to be dealt with beforehand and to therefore ask that he come

21 along on the 9th for a one-day all-encompassing piece of evidence is not

22 feasible at all. And the Defence thinks it's unlikely that we would

23 finish that witness in under two days and one day I can say now that we

24 would not do so.

25 Finally, Your Honours, we would not be in any way satisfied by

Page 11

1 some notes of amendments to that report. The Defence -- if the

2 Prosecutor is now indicating that they would seek to tender that report

3 in evidence, we indicate now that we oppose its being tendered and we are

4 going to move a motion to prevent that from happening. If the

5 Prosecutors really do intend to proceed in that way, and they have

6 indicated in open court that they are, that's the battle we will fight.

7 It takes some preparation we will do so, but -- because the report, we

8 say, has a number of flaws. They don't need to concern the Court right

9 now.

10 Now, Your Honours could I just make this point? Whatever the

11 scheduling difficulties may be that the Prosecutor has encountered, and

12 obviously the Prosecutor has difficult problems from time to time which

13 we acknowledge, and obviously fitting witnesses in at different times is

14 an issue. But frankly, it doesn't have to be General Ridgeway. It could

15 be somebody else. The -- it would be perfectly appropriate to find

16 another witness because frankly, this witness made his -- gave his report

17 on more than 50 per cent of material which has nothing to do with this

18 case. Undertaking the task of taking out the parts which were formed on

19 that basis and asking him to -- with a clean slate to form a new opinion

20 seems to me to be a very difficult task to ask anyone to undertake. But

21 in any event, it's not something that ought to delay the trial. It has

22 to be borne in mind that Mr. Halilovic is in custody. This case has gone

23 smoothly in most respects and the Prosecution case is coming to a close

24 now.

25 We won't object to a new expert and we won't object to a new

Page 12

1 expert report but we want a report. We want something signed, we want

2 something complete. We want something to make it clear why an expert

3 witness has come to the conclusions that she or he happened to come to.

4 We need that. We won't delay things. We are not trying to be

5 obstructive. We are very happy to press on. But it's -- we are not

6 happy with the form that's proposed and in its current form we would make

7 it clear that we with challenge the admissibility of that report in its

8 current form.

9 As to the 9th, I would consider that to be a hopeless goal at the

10 moment.

11 JUDGE LIU: Thank you. Is it possible for us to hear Professor

12 Angelinovic on the 11th of May, Mr. Weiner?

13 MR. WEINER: No. He's going to be in a meeting in Zagreb on the

14 10th. We had scheduled him for the following week. He has several

15 meetings afternoon he has international visitors. He was available the

16 following week. I think he can arrive on the 17th and testify on the

17 18th and 19, if necessary.

18 JUDGE LIU: Yes. But anyway, I believe that the Prosecution's

19 case has to come to an end at the beginning of June, which is the 3rd of

20 June.

21 MR. WEINER: The other option, if you want to do Delalic all at

22 once, if we could possibly start -- I would contact Dr. Angelinovic again

23 and see if we could start on the 12th. He could arrive either late night

24 on the 10th or early morning on the 11th. That would give us a chance to

25 talk to him and then he would go on the stand the following day. I could

Page 13

1 see if that would be feasible.

2 JUDGE LIU: But on the 12th, we only have two days on that week.

3 That is 12th and 13th. Is it possible for him to stay until next week,

4 the 16th?

5 MR. WEINER: The 16th is a holiday. It would be into the 17th.

6 JUDGE LIU: Oh, I see.

7 MR. WEINER: I don't see his testimony going that long. We

8 completed the other pathologist very quickly. In fact we 87(F)ed the

9 direct examination of the other pathologist's testimony and that's under

10 consideration in this case too with regard to this expert.

11 MR. MORRISSEY: Your Honour, perhaps I could assist with that

12 one. The Defence would not object to the subject to resolving two small

13 matters with my learned friend. I would not object to the 89(F)

14 procedure with respect to this witness. Nor would we object to a

15 videolink if the Prosecution felt that could be accommodated with that

16 witness. He's an expert witness so there is no need for -- I was going

17 to say courtroom dramatics. But in any event. It's a very -- it's a

18 very confined cross-examination. I think we would finish him in two

19 days. That's my view.

20 JUDGE LIU: Yes. Thank you very much. But the videolink witness

21 will take the Tribunal a lot of time because we have to prearrange it at

22 least three weeks before.

23 MR. MORRISSEY: Your Honours, look, it's simply a suggestion. We

24 will assist. Frankly if that witness could be by some means arranged as

25 the first witness, that would probably suit everyone and we won't take

Page 14

1 too long with Angelinovic.

2 JUDGE LIU: Yes. Thank you very much. Mr. Weiner, try your best

3 to make this witness come on the 12th. So we try to finish him in two

4 days.

5 MR. WEINER: I will, Your Honour.

6 JUDGE LIU: Thank you very much indeed. But you have to inform

7 us as early as possible about the results.

8 MR. WEINER: In fact if I get an idea which issues we are going

9 to cover next I'll leave the courtroom at this time and get on the

10 telephone.

11 JUDGE LIU: Well, there are a lot of issues.

12 MR. WEINER: Are we just going to do these seven on the Defence

13 list or did you have others?

14 JUDGE LIU: Maybe it depends on how long the Defence would like

15 to elaborate on those issues. But to us the most important is the

16 witness list and the scheduling issues.

17 MR. WEINER: Let me leave for about 15 minutes and see if I can

18 make some arrangements for the doctor and the case is in good hands.

19 JUDGE LIU: Thank you. I hope the Defence case could be started

20 no later than the 27th of June.


22 JUDGE LIU: It will last until the 22nd of July, before the

23 recess. If the -- if possible, I'm afraid that we have to sit a little

24 bit during the recess period, maybe one week, to finish the Defence case.

25 MR. MORRISSEY: Your Honours, could I just indicate we -- I

Page 15

1 believe we would be in a position to start by then and we may be in a

2 position to start earlier and we hope to start earlier than that, if

3 possible. Therefore, we meant to remain in contact with the Prosecution

4 and with the Court as to that.

5 But could I indicate that a great deal of the length of the

6 Defence case really depends upon how the expert evidence pans out, how

7 the expert evidence turns out here in the Prosecution case. The

8 necessity for dealing with the matter at an expert level is very volatile

9 right at the moment. We do not know what is going to be said by the

10 expert, Lieutenant General Ridgeway, on the new material and our response

11 to it, although we have in the past given much thought to this issue and

12 cross-examined on expert matters from time to time, we still don't know

13 precisely what we are facing in that regard, and that is -- that does

14 create some volatility for us.

15 And therefore, Your Honours, I would prefer not to undertake

16 right now that we could start earlier than the time when Your Honour

17 indicates. I can say that we would start by then. I'm very confident we

18 would be able to. I'm also relatively confident we could start a week

19 before that and I think it would be desirable even though that means a

20 relatively short break, bearing in mind the break that we are now

21 having -- we, I mean counsel, not the judges in the case.

22 JUDGE LIU: Yes. But you have to bear in mind that there is a

23 98 bis proceedings, a 65 ter filings on your part, and as well as the

24 Pre-Defence Conference. All those procedural matters we have to do it.

25 Of course, we will do our best to shorten the period in between, but we

Page 16

1 believe that two or three weeks is not a long time.

2 MR. MORRISSEY: Your Honours, as I say, we could give you a

3 clearer picture once we know what the situation is with the expert. But

4 we ourselves may need to engage another expert, depending on how things

5 develop. But nevertheless, what Your Honour says we will comply with, we

6 will be ready to start at that time that Your Honour has indicated. And

7 as to starting earlier, we'll see what we can accomplish and if the Court

8 is prepared to start us earlier then we will.

9 As to sitting into the break, into the recess, Your Honours, I

10 would entirely support doing so if that's possible. And as I've

11 indicated in the past, I think it's -- it's very much the Defence hope to

12 keep the Defence case very confined in this case. And that's our

13 intention to do so.

14 JUDGE LIU: Thank you very much.

15 The next issue is about so-called status of Mr. Delalic and the

16 position of the OTP relative to witnesses. I'm a little bit puzzled with

17 this description. Maybe Mr. Morrissey could shed some light on that.

18 MR. MORRISSEY: Your Honours, there are various aspects to the

19 matters we wanted to raise about this witness. Some of them, on

20 reflection, perhaps, are not appropriate to trouble the Court with now.

21 But there is one matter that or one issue that we need clarification on.

22 It's really a particulars issue in another way. The Prosecution case

23 with respect to Mr. Delalic has been in the past that he was an

24 effectively a dangerous criminal, and it's part of the notice case

25 against Mr. Halilovic that he should have known better than to use the

Page 17

1 unit led by so dangerous a man. The indictment makes it clear what the

2 Prosecution's position about Mr. Delalic was. It uses particular

3 phrases, in particular refers to him as -- Mr. Delalic as a commander.

4 It refers to Mr. Delalic ordering the burial of bodies, and in short, it

5 puts Mr. Delalic in a position where he must, on the Prosecution's own

6 case, be guilty of a war crime of failing to punish. He must be guilty

7 of that on the Prosecution's own case. Therefore, we wish to be clear,

8 we need to know whether that witness is one who is going to be warned and

9 given the relevant self-incrimination warning, and we need to know in

10 effect are these matters that have to be litigated or are these matters

11 the Prosecution says the Defence can proceed on without argument, that he

12 did in fact order the burial of bodies and that he was -- I won't use the

13 term effective control, but he was a commander and he ordered the burial

14 of the bodies. Those are matters that we need to know because, in

15 effect, because it's in the indictment, the Defence has proceeded in

16 other way with other witnesses without the needs to canvass those

17 matters. Obviously there were witnesses from the 89th Brigade. We can't

18 name them all who gave evidence, also witnesses from the 2nd Independent

19 Battalion. We just need it to be quite clear what the Prosecution's

20 position is. Do they say they are calling a war criminal?

21 JUDGE LIU: Well before --

22 MR. MORRISSEY: Sorry to interrupt, Your Honour. Does he need to

23 be warned about that?

24 JUDGE LIU: Before the Prosecution takes the floor, could I ask

25 you whether you received a letter dated 20th of April 2005 written by Ms.

Page 18

1 Chana?

2 MR. MORRISSEY: Yes, Your Honours, we do have that letter.

3 JUDGE LIU: Yes, Ms. Chana?

4 MS. CHANA: May it please Your Honours, I am slightly perplexed

5 by my learned friend's submission in respect of Witness Delalic. As Your

6 Honour himself -- yourself has noted, we have written a letter and I

7 think all the issues were addressed. One of the issues was

8 self-incrimination. That, Your Honour, has been very clear that it is

9 I'm sure Your Honours will warn the accused of such a matter when it

10 arises in court.

11 Your Honour, Delalic isn't called a war criminal. He's guilty --

12 I mean the last I heard, Your Honour, a person has to be tried before

13 they are found to be guilty. At this time when he's a witness before

14 this Chamber, he is not considered a war criminal, to begin with. He is

15 a Prosecution witness. We have alleged in our indictment - the

16 particulars are quite clear - that the parts of the 9th Brigade were

17 brought on to the scene who committed some of the crimes. Ramiz Delalic

18 was the commander. He will come and assist the Court with his evidence

19 as to what were the circumstances at the time.

20 So other than that, Your Honours, I'm not sure how I can help the

21 Defence in respect of this witness and what exactly it is that I'm

22 supposed to inform them of, about the nature of his testimony. We have

23 disclosed to the Defence all the transcripts of this particular witness,

24 of his interviews with the OTP and other interviews that he's had, and

25 that to my mind would be quite sufficient to put the Defence on notice as

Page 19

1 to what this witness is coming to say.

2 JUDGE LIU: Yes. Thank you. But what is his status at this

3 moment? Is he still under the trial? He's indicted? He's a detainee?

4 Or he's released on provisional release?

5 MS. CHANA: He's released, Your Honour. He at this moment served

6 his -- I think he had a six-month sentence and all that information has

7 equally been provided to the Defence and he's been released since

8 December. There may be other charges going to be leveled against him and

9 this is also been disclosed to the Defence, on a murder case at the

10 wedding. But at this moment, Your Honour, he is -- he is not in custody,

11 and neither is he facing any charges.

12 JUDGE LIU: Do you think he needs a lawyer during his testimony?

13 MS. CHANA: Your Honour, I believe his lawyer, Mr. Karkin is

14 going to travel with him.

15 JUDGE LIU: Thank you.

16 MR. MORRISSEY: Your Honour, as the Defence, firstly could I say

17 what my learned friend says does clarify matters. The Prosecutor, as I

18 understand, is standing by the indictment and that does answer my

19 question. So I'm grateful for that indication.

20 But secondly, as to the situation with Mr. Delalic, as we

21 understood it, he has been charged and awaits trial and is on provisional

22 release in respect to the wedding murder. That's our information and it

23 had better be clarified, I think, what his position is about that. It

24 might be of significance. That's what our understanding is, that he's

25 been charged, that he was in prison for it on remand but subsequently has

Page 20

1 been provisionally released in respect of that and that's outstanding.

2 If our information is wrong we are very happy to withdraw the comment but

3 that's what we think is the situation from some extensive inquiries and

4 we better that have clarified too Your Honour, if possible.

5 JUDGE LIU: Yes, Ms. Chana?

6 MS. CHANA: Your Honour, the indictment has been issued by the

7 Sarajevo cantonal court. Whether he's actually been arrested or under

8 provisional release, my information is that's not the case. But I will

9 certainly look into the matter because the indictment itself was handed

10 over to the Defence in our disclosure. And as far as we are concerned,

11 the Bosnian government is giving him a visa on the basis that he is not

12 under any charges at the moment but there has been an indictment issued.

13 JUDGE LIU: Thank you very much. And I'm looking forward to your

14 answer.

15 Well, the next issue is about the material relevant to the credit

16 of Prosecution witnesses. Mr. Morrissey?

17 MR. MORRISSEY: Would Your Honour just excuse me one moment,

18 please?

19 JUDGE LIU: Yes.

20 [Defence counsel confer]

21 MR. MORRISSEY: Thanks. Yes, sorry I was just seeing what the

22 latest situation was, Your Honour. Your Honour, the Prosecution have

23 undertake to provide us with supporting material with respect to

24 indictments concerning the three named individuals Delalic, Alispahic,

25 Mujezinovic. We await that material with bated breath. And it could be

Page 21

1 of significance in the case. We have been provided today with a

2 statement. It may be that the Bosnian version of it was disclosed

3 before. Before I say any more about that I think we will just

4 investigate the extent to which that was disclosed in the electronic

5 material. So, Your Honour, there has been some progress there.

6 Can I indicate the Prosecution have undertaken to provide us with

7 certain material as and when they get it. But it's recognised that it

8 exists and it's of importance. The Defence sometimes has trouble getting

9 that material through other sources. Anyway, it's coming from the

10 Prosecution and we await it. And of course, any other material that

11 arises we need to be provided with.

12 Could it -- just to be clear about one matter that has been

13 mentioned by me in the past, and I've used a general term, the term

14 disclosure, and we've asked that the Prosecution disclose such materials.

15 We think that there is a wider duty that the Prosecution has got than

16 just to disclose. Of course the Prosecution does disclose material.

17 You'll recall that they did so, quite correctly, if I may say so, with

18 respect to one witness -- I just can't recall if he was under special

19 measures. I won't say his name. But anyway, the Prosecutors did provide

20 us with something concerning an allegation concerning him. He didn't

21 agree with it. But they did provide that. It was capable of being

22 exculpatory so they provided it. Exculpatory material can be quite wide.

23 It doesn't have to be limited to a certified copy of a conviction.

24 Sometimes people aren't convicted. One thinks of -- well, one that comes

25 to mind is Adolf Hitler. You don't have to be convicted to be a war

Page 22

1 criminal or guilty of all sorts of things or have material that's

2 relevant to credit. So that we make the point that it's not just a

3 question of formal convictions but of material that's relevant to the

4 credibility of a witness.

5 And secondly, we mention that the Prosecutors, we think, we

6 submit, are under a duty to -- once they are on notice to have a look to

7 see what the situation is.

8 Now, the Prosecutors have responded to submissions made by us in

9 court in the past, by undertaking to provide what they can and we are

10 grateful for that indication, but it may be that there is more and we

11 don't want a situation to develop and we think we should put it on the

12 record now, that later, materials emerge after the witnesses have gone.

13 It's not to anyone's benefit if that happens. It's not to the

14 Prosecutor's benefit. It's certainly not to the Defence's benefit. And

15 it creates all sorts of difficulties and mistrust at a later time will we

16 don't want.

17 Those are the only things I have to say on that topic because,

18 Your Honours, we have been provided with that indication by the

19 Prosecutors and therefore they appear to be cooperating and we are happy

20 to see that.

21 JUDGE LIU: Thank you. Any response?

22 MR. WEINER: Just briefly, Your Honour, that we have been meeting

23 our Rule 68 obligations and we continue to meet them. However, the law

24 of this Tribunal has limited the Rule 68 obligations. If the Court looks

25 at Prosecutor versus Blagojevic 12 December 2002, joint decision on

Page 23

1 motions related to production of evidence, the Court states at paragraph

2 26, which is the paragraph that begins, "as the Appeals Chamber has

3 previously held, if exculpatory evidence is known and the evidence is

4 accessible, the Prosecution may be relieved of its obligation to disclose

5 the material under Rule 68."

6 And it continues: "Rule 68 is not intended to serve as a means

7 through which the Prosecution is forced to replace the Defence in

8 conducting investigations or gathering material that may assist the

9 Defence. Rule 68 also does not translate into a right for the Defence to

10 receive all the Prosecution's evidence that could be useful in the

11 Defence against charges in the amended indictment."

12 And then it continues on page 11. That was page 10, paragraph

13 26. Into paragraph 27 on page 11: "Rule 68 requires the Prosecution to

14 disclose material which may suggest the innocence or mitigate the guilt

15 of an accused or material that may affect the credibility of Prosecution

16 evidence. It is not, however, for the Prosecution to step into the shoes

17 of the Defence and research publicly accessible material."

18 If they are aware of certain charges, they have investigators,

19 they have attorneys in Sarajevo, and they can just as well get this

20 information as the Prosecution. As this Court well knows, if you look at

21 the Statute or look at the case law, we are only responsible to provide

22 materials in our possession or materials being held by the Prosecution.

23 And we have complied with that. Thank you.

24 JUDGE LIU: Thank you very much for reminding me of that

25 decision. But at the same time, I have to say that according to the

Page 24

1 Rules and the jurisprudence of this Tribunal, the Prosecution has the

2 consistent obligations to disclose any materials if the Rule 68 so long

3 as they are at their possession. I hope the Prosecution could continue

4 this request and research for those materials. At the same time, I have

5 to say that the Defence could not make a fishing expedition for that.

6 You must have some evidence to show us that certain documents is now in

7 the possession of the Prosecution so that the Bench could accommodate the

8 request from the Defence.

9 Yes, third matter is the deposition of Mr. Karic. Up to now,

10 this Bench is elaborating the arguments put forward by the both parties

11 on this very issue. We haven't make up our mind on that particular

12 issue. So I believe that it is premature to discuss it. Anyway, we will

13 make our decisions as early as feasible and inform the both parties as

14 early as possible so that both parties could be prepared if -- if -- the

15 motion from the Defence is granted.

16 Yes. The fourth issue is about Mr. Halilovic's interview. I'm

17 not quite sure at this moment whether the submissions by Mr. Re on the

18 other day could constitute a formal submission of this document or not.

19 I don't know whether we need some written submissions. Maybe I could

20 turn to Mr. Re first.

21 MR. RE: No, no. That was an ex tempore response to an issue the

22 Defence raised in court. Our understanding was that the Defence was

23 going to file a motion opposing the introduction of the material and we

24 were going to respond to that. It appears that's changed, and we have to

25 start from scratch and the Prosecution has to stand up before the Trial

Page 25

1 Chamber and present its case law and say why the document is admissible

2 from the bar table, supported by the practice of the Tribunal. Your

3 Honour's concern before was I think when we were going to do it and the

4 best we could say at the time was during a suitable break when we don't

5 have any witnesses, seeing as we would probably need some hours to debate

6 the issue fully. Nothing has changed in it that respect. We still want

7 to argue it and we still want to provide Your Honours with full material

8 on which you can make an informed decision.

9 JUDGE LIU: Yes. Mr. Morrissey?

10 MR. MORRISSEY: Your Honour.

11 JUDGE LIU: What's your position on that very issue?

12 MR. MORRISSEY: Your Honour, we think that the Prosecutors have

13 indicated in brief that they are not going to call evidence and that they

14 want to tender this document from the bar table. And therefore we submit

15 that the right course to take is for the Prosecutors to seek to do that

16 from the bar table today and then within a short period of time, we will

17 file a response in writing by way of motion. The Prosecutors will then

18 have the opportunity to respond in writing. That saves the Court time

19 when we resume, and it allows any debate that Your Honour would be helped

20 by between Mr. Re and myself to be focused when you already have in

21 writing what the Defence says and what the Prosecutor says about it.

22 Now, the Prosecutors have made it clear that's what when want to

23 do. They want to proceed without evidence. The Defence think that is we

24 have an argument to end the debate at this point. We can put that in

25 writing. It's important though that be done as soon as possible, Your

Page 26

1 Honour, because if Your Honours were persuaded by the Prosecutor that

2 they should be permitted to tender it from the bar table, and if you

3 weren't persuaded by our argument to the contrary of that, then the

4 Defence, as my learned friend pointed out in the past, may seek to go

5 into evidence on the topic. Now, we think you can resolve this without

6 the need to -- for evidence, but it may be that you decide against us in

7 that regard and that's of course up to the Tribunal. But for that

8 reason, we think it would be the best if the Prosecutors were to indicate

9 formally now - and I'm not suggesting for one minute that Mr. Re should

10 be compelled to present the argument now, in court - but if he makes the

11 offer to tender it now, then we'll accept that that's being done. And we

12 can file our motion very quickly, within perhaps three or four days, Your

13 Honours.

14 JUDGE LIU: Thank you very much. I think that on the other day,

15 Mr. Re has already submitted their -- this document into the attention of

16 the Bench. I wonder if Mr. Re would like to confirm it or not and maybe

17 I'll give you just one minute for that.

18 MR. RE: That's all I need. No, we certainly -- our position

19 hasn't changed. We intend to offer it into evidence. We didn't formally

20 say "I tender," but that's just a formality. Our indication is that we

21 intend to tender it into evidence. And we thought the Defence was going

22 to put on a motion opposing it. I mean, I can say we formally tender it,

23 subject to Your Honour's ruling. It doesn't make any difference in our

24 submission but if it assists, I can say that.

25 JUDGE LIU: Well, thank you very much. I believe that the ball

Page 27

1 is in the Court of the Defence and the Defence will file its submission

2 to express your views on that. And after that, the Prosecution also have

3 an opportunity to make a reply.


5 JUDGE LIU: But we will make it as short as possible.

6 MR. MORRISSEY: Of course, Your Honour. There are some issues of

7 substance raised. Your Honours, the Prosecutor having moved to tender

8 that document we will respond. The Prosecutor will then have the

9 opportunity to respond to us. And then depending on whether Your Honour

10 needs to hear any oral arguments or not at that stage we will comply.

11 We'll get that as soon as possible to the Trial Chamber. If we just give

12 it to the Court deputy and the Prosecution in the normal way, the matter

13 can commence. I'm grateful to the Prosecutor for moving it today and

14 allowing things to start quickly.

15 JUDGE LIU: Thank you very much indeed. The next issue is about

16 particulars of Prosecution case. What this mean? Yes? Yes Mr.

17 Mettraux?

18 MR. METTRAUX: Good afternoon, Your Honour. I will attempt to

19 explain to the Chamber the number of issues we have had. We have

20 exchanged a number of letters with the Prosecution in relation to a

21 number of aspects or pleadings in this their case. A number of issues

22 unfortunately remain unclear. Some of them have been clarified by their

23 responses to our letters but some, however, remain pending.

24 The first one - I will list them and then if Your Honour needs

25 any further clarification, I may do so - but the first one would be for

Page 28

1 the Prosecution to clarify what sort of armed conflict the Prosecution is

2 alleging in this case. The Defence wants to make it clear that we are

3 not suggesting that this would have any bearing on whether or not command

4 responsibility applies. We are aware of the Hadzihasanovic decision and

5 some others that command responsibility applies in both contexts.

6 However, and I may explain it later why we believe it is relevant

7 to the Defence to know at last what the armed conflict is in this case.

8 The second issue is one relating to the body of law which the

9 Prosecution claims to be applying in that case, and more specifically

10 whether the Prosecution is saying that they are relying upon treaty law

11 or customary international law. From the letter of yesterday, there is

12 an indication that the Prosecution is relying on a mix, on a mixture, of

13 treaty law and customary international law. The Defence is quite

14 surprised, to say the least, by this suggestion. But if that's indeed

15 the Prosecution case, the Defence would like to know in relation to what

16 aspect the Prosecution is claiming to rely on treaty law and in relation

17 to what aspect it is claiming to be applying customary international law.

18 The third issue of so-called particulars which the Defence wants

19 to raise today, is one which relates to the alleged obligations of Mr.

20 Halilovic as they are provided for in the pre-trial brief. And it

21 relates to the previous question, namely what is the legal basis for the

22 Prosecution to claim that Mr. Halilovic had this or that particular

23 obligation in the circumstances, whether that's under domestic law,

24 whether that's under treaty law, whether that's under customary

25 international law and if treaty law, what treaty and what provisions.

Page 29

1 The fourth matter which we are seeking some clarification at

2 there stage relates to the alleged state of mind of Mr. Halilovic. As

3 Your Honour will be aware, this is a matter which should have been

4 pleaded in the indictment and which has not been pleaded in the

5 indictment. And we seek some clarification in that regard as well.

6 Lastly, the Defence is seeking clarification as to the position

7 of the Prosecution in relation to the order of the 30th of August 1993

8 and its relevance to the Prosecution case. There again we believe it is

9 a matter of great ambiguity and which could have an impact upon the

10 Defence days and its position.

11 So those are the matters, Your Honour. If you need any further

12 assistance, I may clarify them.

13 JUDGE LIU: Yes, as for the nature of the armed conflict, what's

14 the relevance to your case?

15 MR. METTRAUX: Well, Your Honour, there are a number of them.

16 The main -- the main issues of relevance to us would be primarily what

17 are the obligations that a commander would have under either body of law?

18 As Your Honour will be aware, the Additional Protocol No. 1 provides for

19 particular provision which relates to the duties and obligations of a

20 commander and those provisions do not appear in Additional Protocol 2.

21 So the question will be in relation to that matter. Where is the law to

22 be found, essentially, in relation to those obligations, which again goes

23 back to a question of the body of law which the Prosecution is claiming

24 to apply.

25 As Your Honour will be aware, in the pre-trial brief, the new

Page 30

1 pre-trial brief of the Prosecution, the Prosecution is claiming that Mr.

2 Halilovic had a number of obligations and goes on to list them. This

3 list is somewhat different from the list which was in the original

4 pre-trial brief, and is also different obviously from what appears in the

5 indictment. So this is the first reason, namely, the obligations that a

6 commander would have in both contexts. They may be the same but that's

7 for the Prosecution to establish, and if they are the same, what are

8 they?

9 The second issue relates to the status of the alleged victims.

10 Depending on what body of law would apply to this case, the status of

11 particular witnesses -- of particular victims may be questioned by the

12 Defence as to whether or not they were protected, the extent to which

13 they were protected or conditions under which they were protected and a

14 number of related matters such as principles which would apply, for

15 example, in the context of a military attack, and whether or not those

16 principles would apply both in international armed conflict and internal

17 armed conflict.

18 JUDGE LIU: Well, are you suggesting that the victims in a

19 domestic armed conflict should have the less favourable treatment than

20 the victims in the international armed conflict?

21 MR. METTRAUX: Well, Your Honour, unfortunately that's not what

22 we claiming. It would appear to be the case. As far as the Protocols

23 are concerned, we are not suggesting that it should be the way but we

24 reserve our position as to whether or not we are going to say that it's

25 the case indeed.

Page 31

1 As far as the victims are concerned, this is our position.

2 JUDGE LIU: Well, I would like to draw your attention to the

3 Tadic's case, which has certain paragraph specifically concerning the

4 protection of the victims during the international armed conflict and

5 non-international armed conflict.

6 Well, I wonder whether anybody from the Prosecution's team is in

7 a position to give a reply?

8 MR. RE: We are at a loss to understand what my learned colleague

9 Mr. Mettraux is getting at. He keeps asking us whether murder is part of

10 customary law or treaty law. Our response yesterday was to quote back

11 his own book at him, at paragraph -- page 104, where Mr. Mettraux's own

12 book, "International Crimes in the Ad Hoc Tribunal" says quote, "Murder

13 is one of the offence which has been recognised as a criminal violation

14 of the laws and customs of war ever since these violations were defined.

15 It is both a domestic crime and an international offence and the law of

16 murder under international law is essentially similar to that found in

17 most domestic systems," and then goes on to define the elements.

18 Murder is the most customary of any possible crime, whether --

19 and that applies to prisoners of war, whether they are described as

20 prisoners of war or people no longer taking part in hostilities or

21 civilians. The question about command responsibility is answered by the

22 Hadzihasanovic interlocutory appeal decision. There is no difference.

23 JUDGE LIU: Yes. Do you mean that the publications of the highly

24 learned scholars in the field also could be the body of law that you rely

25 on?

Page 32

1 MR. RE: Well, I think it takes sometimes for these publications

2 to crystallise and for people to gain the level of respected

3 commentators. I'm sure in due time he'll be there, but it's a summary of

4 the law. It's a summary of the law at the moment.

5 JUDGE LIU: It seems to me that I have to read that book, to see

6 this aspect.

7 MR. METTRAUX: Well, Your Honour, I'm grateful to the Prosecution

8 for the free advertising for the book but there are two things that I

9 would like to specify at this stage.

10 The Defence has never questioned that the crime of murder is

11 recognised under both treaty law and customary international law and

12 unfortunately this has never been the matter we were trying to get at.

13 And I think or I have an attempted to make it quite clear what we are

14 trying to get at and the Prosecution can very simply answer the question.

15 Is the Prosecution case that the armed conflict in question is an

16 internal one or an international one? It can be answered in one word and

17 we feel we are entitled to it, according to the jurisprudence on adequate

18 pleading in this Tribunal.

19 MR. RE: Our response is Hadzihasanovic makes it quite clear,

20 which is a conflict between the same parties, the HVO and the ABiH, that

21 it does not matter. It's an armed conflict. As Your Honour has pointed

22 out, the Tadic jurisdiction decision likewise goes to there.

23 Hadzihasanovic goes to command responsibility. Mr. Mettraux also -- our

24 response is it doesn't matter in the context of conflicts before this

25 particular Tribunal.

Page 33

1 Mr. Mettraux also asked about whether it is international law or

2 treaty or domestic law. It doesn't matter. Hadzihasanovic makes it

3 clear that as of 1993 it was part of customary law that command

4 responsibility applied in internal and international armed conflicts.

5 Mr. Mettraux of course will also know that the Yugoslav Criminal Code

6 also provided for command responsibility because the federation -- or the

7 SFRY had enacted the relevant provisions and it adopted into domestic law

8 the Geneva Conventions.

9 We have also explained to the Defence in our previous

10 correspondence that it's under common Article 3(1)(A) of the Geneva

11 Conventions which is common to all the conventions. Each of them.

12 Whether you're a prisoner of war or whether you're a civilian and it's

13 also common to Additional Protocols. So we don't understand it. I mean,

14 if they could specify it, and if they are challenging jurisdiction, we

15 think the time is probably well and truly past but we don't understand

16 where they are coming from.

17 I think I can glean something from Mr. Mettraux's book at page 9

18 where he criticises the Galic decision and its apparent mixture of

19 finding that terror was a treaty- instead of a customary-based crime but

20 that doesn't apply here. Galic has got nothing to do with this case.

21 This case is just murder, which as I said before is the most customary of

22 any offence going back pre-Biblical times, one would think. Under any --

23 under any culture.

24 JUDGE LIU: Well, how about the other two issues? One is the

25 state of mind of Mr. Halilovic and the other is the order on the 30th of

Page 34

1 August 1993. Do you have anything to say on those two issues?

2 MR. RE: The mens rea is very implicit in the indictment and that

3 is that Mr. Halilovic brought those troops to Grabovica and used them

4 knowing of their reputation. That's the mens rea. And then failed to

5 carry out a proper investigation, knowing of the -- after having received

6 notice of the criminality. The second part that is of course actus reus

7 and mens rea. That covers that.

8 The second one is the -- I'm not sure if it was the status or the

9 particulars of the letter of the order of the 30th of August. It's a

10 matter of evidence. Our case is that that's an order which gives Mr.

11 Halilovic de facto or de jure command over the troops that committed the

12 crimes. It's a matter of evidence. It's so clearly pleaded and

13 particularised, I don't know -- and we've heard so much evidence on it, I

14 don't know what more we can say. If Mr. Mettraux could be more specific

15 as to his difficulty with the status of the letter we mind be able to

16 respond but we are at a loss to work out where they are going on this.

17 JUDGE LIU: Thank you very much. Yes, Mr. Mettraux. Please be

18 very concise.

19 MR. METTRAUX: I think very briefly, Your Honour, in relation to

20 the state of mind, the alleged state of mind of Mr. Halilovic, Mr. Re has

21 responded and probably so has he in relation to the order, although it

22 seems to be irrelevant now to both de facto and de jure. But we really

23 insist that the Prosecution, and I think it would them about ten seconds

24 to tell us about the nature of the armed conflict and the body of law

25 which they are claiming to apply. We think that this is a matter that we

Page 35

1 are -- the Defence are entitled to know what body of rules the

2 Prosecution is claiming to apply in this trial and what sort of armed

3 conflict is pleaded in this case. We are not interested in what might

4 have been pleaded in the Hadzihasanovic case. This is not before this

5 court and we think it would be very easy for the Prosecution to answer

6 that question.

7 JUDGE LIU: Well, I believe that those questions relate to some

8 legal issues, and which need some consideration by both parties. It is

9 very difficult for me, the Bench, to make a ruling or make an order at

10 this stage. Those matters may be brought up in the final brief or

11 closing argument on those issues. However, I hope the both parties keep

12 contact with each other, including to clarify those legal issues in the

13 future meetings. At this stage, are there any other matters that the

14 party would like to raise? Yes, Mr. Morrissey?

15 MR. MORRISSEY: Your Honours, there are no other matters to raise

16 at the moment. The issue as to Mr. Karic, we've had an inquire made. We

17 are not doctors but we've caused somebody to visit a Doctor Abdulah Nakac

18 [phoen]. I don't want to hand it up in open court but I'll provide it to

19 the court deputy and the Prosecutors, the document we have been given

20 about the health of that person. It may assist the Tribunal. When you

21 see the document you'll see it. It's just information. It's the best we

22 can do at the notice we've had. As far as that goes.

23 And Your Honours, perhaps -- there is nothing else to raise. The

24 only issue is when it comes to the issue of the mens rea, I just want to

25 add this so my learned friend -- it's a matter that probably won't go

Page 36

1 away because when the time comes to consider a 98 bis submission at the

2 end of the Prosecution case, one issue is going to be have the

3 Prosecution proved the mens rea that they allege? And at the moment,

4 they haven't been specific. They've said it's very implicit and that's

5 quite right. Whatever it is it's implicit, not explicit. They haven't

6 pleaded it. I don't call on the Prosecutors to re-argue what's been

7 mentioned today in court, but I can make it quite clear in court that at

8 some stage they are going to have to say what it is because I'm going to

9 have to answer it when I make the 98 bis response. And it's important

10 for them to specify which one they -- what level of mens rea they specify

11 as there are a number of different grades of potential mens rea within

12 the way it's pleaded now. The Prosecutor is going to have to specify

13 where they pitch it, where they say it is fixed, because that's what I'm

14 going to answer. I don't want to be boxing at shadows or wasting the

15 Tribunal's time with a submission on actual knowledge only to find the

16 Prosecutors saying that that was never their case.

17 So clarification will be needed. Of course we will speak to the

18 Prosecutors again but I just make it clear that it's not being

19 obstructionist to raise this. It's a matter of significance that could

20 trouble the Tribunal at the halfway stage and if that's not successful

21 from the Defence point of view, at the end of the case as well. It will

22 come back.

23 Other than those matters, Your Honour, you've given guidance

24 about what you want and we'll comply with that, of course. There is just

25 one scheduling matter that I would seek to know about and that is how we

Page 37

1 deal with the Karic matters because I understand it's a matter that

2 troubles the Tribunal right now. But depending on how things unfold with

3 that, scheduling of Mr. Karic might be a matter we have to deal with.

4 Your Honours may choose simply to have the deposition and no

5 cross-examination in which no court time out of what we submitted -- you

6 remember that we had a discussion as to whether it should be played in

7 court or not. The Defence does maintain its position that it should be

8 played in court. But timing issues will arise if you permit

9 cross-examination by the Defence or any other questions of any sort to be

10 engaged in. And you might take into account the letter that we are going

11 to provide. It may not be decisive, I don't think, but it's a matter

12 that we will provide anyway. But we need to know about that too, Your

13 Honour, if possible. So that could I just make the request that as soon

14 as the judgement is rendered in that matter, that the -- we be speedily

15 advised so that we can make our response accordingly.

16 Those are the only matters that we have to raise at the end.

17 JUDGE LIU: Yes, of course. As for the letters of the doctor, I

18 hope you could also furnish a copy to the Prosecution.

19 MR. MORRISSEY: Yes, of course we will, and I've indicated that

20 we will.

21 JUDGE LIU: As I said before, that any videolink testimony have

22 to be arranged at least three weeks before that specific date. We

23 haven't got -- come to any conclusions on that. We are still considering

24 the request by the Defence, as well as by the Prosecution, but I believe

25 that we'll be in a position to make a decision sometime next week.

Page 38

1 MR. MORRISSEY: Grateful for the indication, Your Honour.

2 JUDGE LIU: As for the arrangement of the 98 bis submissions, I

3 believe that the Defence should make that submissions the next day after

4 closing of the Prosecution's case, and it depends how long it will last,

5 which should be an oral one in the courtroom. Then we will stop and we

6 will resume the next day to hear the reply from the Prosecution. I hope

7 the Prosecution could have enough time for that preparation and there may

8 be a short, very short, reply on the -- after the Prosecution's reply,

9 which should be in one day. If the parties believe there is not enough

10 time for them, they could make some oral submissions on that when the

11 time comes.

12 Yes. Well, there is no other matters that the parties would like

13 to raise? Yes. It seems to me that we have finished all the matters,

14 and I hope that the Prosecution could submit a formal list of the orders

15 of the witnesses at the beginning of next week so that the other party

16 and the Bench could be well prepared for the witness.

17 So I wish everybody a nice weekend. The hearing is adjourned.

18 --- Whereupon the Status Conference adjourned

19 at 5.17 p.m.