101026SE

Page 34

1 Tuesday, 26 October 2010

2 [Status Conference]

3 [Open session]

4 [The accused not present]

5 --- Upon commencing at 10.03 a.m.

6 JUDGE MOLOTO: Good morning to everybody in and around the

7 courtroom. Mr. Registrar, will you please call the case.

8 THE REGISTRAR: Good morning, Your Honours. This is case number

9 IT-04-84bis-PT. The Prosecutor versus Ramush Haradinaj, Idriz Balaj and

10 Lahi Brahimaj.

11 JUDGE MOLOTO: Thank you very much. Could we have the

12 appearances for the day, starting with the Prosecution.

13 MR. ROGERS: Yes, Your Honours, good morning. Good morning to

14 everybody in the courtroom. Paul Rogers, appearing on behalf of the

15 Prosecution, together with Priya Gopalan, Ms. Barbara Goy, and our

16 Case Manager today, Donnica Henry-Frijlink.

17 JUDGE MOLOTO: Thank you very much.

18 And for the Defence.

19 MR. EMMERSON: Morning, Your Honour. Ben Emmerson, appearing on

20 behalf of Mr. Haradinaj, together with Rodney Dixon, Andrew Strong, and

21 Bath-Sheba Van den Berg.

22 JUDGE MOLOTO: Thank you very much.

23 And for Mr. Balaj.

24 MR. GUY-SMITH: Good morning, Your Honour, Chad Mair,

25 Colleen Rohan, Gregor Guy-Smith appearing on behalf of Mr. Balaj.

Page 35

1 JUDGE MOLOTO: Thank you very much.

2 MR. HARVEY: Morning, Your Honour, on behalf of Lahi Brahimaj,

3 Richard Harvey, assisted by Sophie Rigney.

4 JUDGE MOLOTO: Thank you very much, Mr. Harvey. I'd like just to

5 note for the record that according to the agreement reached at the last

6 Status Conference on the 23rd of September, 2010, the accused are not in

7 court today. Okay? Now, pursuant to Rule 65 bis (A) of the Rules, the

8 purpose of the Status Conference is to one, organise exchanges between

9 the parties so as to ensure an expeditious preparation for trial, and,

10 two, to reveal the status of this case and to allow the accused to raise

11 issues, including issues related to his mental and physical condition.

12 Having this in mind, I'd like to recall that in the last

13 Status Conference I issued the following orders: one, that the

14 Prosecution should file by the 21st of October, 2010, a notification of

15 the status of the two witness, Shefqet Kabashi and the other protected

16 witness. Two, that all parties should file jointly by the 28th of

17 October, 2010, a shortened form of the operative indictment corresponding

18 to what is at issue in the partial retrial. Three, that the Prosecution

19 should file its 65 ter list of witnesses and exhibits and its pre-trial

20 brief by 30th November 2010. Four, that the parties should file a joint

21 motion on agreed facts and issues by the 18th of November, 2010, and

22 finally that the Defence teams should file their pre-trial brief by the

23 14th of December, 2010. I note that the Prosecution filed a notification

24 of the status of the two witnesses Shefqet Kabashi and the other

25 protected witness on the 22nd of October, 2010. The main purpose of this

Page 36

1 second Status Conference is therefore to discover what progress has been

2 made in reaching agreements between the parties.

3 The senior Legal Officer in Trial Chamber II has been copied on

4 some e-mail exchanges between the parties concerning agreed facts. I

5 have not seen those e-mails, but I understand the position to be as

6 follows: that on the 1st of October 2010 the Prosecution sent a table of

7 32 proposed agreed facts to the Defence. That on the 22nd of October,

8 2010, each of the three Defence teams responded with their position on

9 each of the facts, and that the intention was for the parties to meet at

10 9.30 this morning to discuss the matter further.

11 I should now like to ask the parties where matters stand and what

12 action they propose to take over the coming days to ensure that the order

13 to file adjourned motion on agreed facts by the 18th of November is

14 fulfilled.

15 Mr. Rogers.

16 MR. ROGERS: Your Honour, we did meet at 9.30 this morning to

17 have a brief conversation before coming into Court today. Your Honour,

18 can I just correct one thing, if I may. The order for us to file on the

19 21st of October, the notification was complied with, and it was filed on

20 the 21st of October. The notification we have is of receipt on the 21st

21 of October. But the date that was given to it was the 22nd of October.

22 But it was in 5.30 on the 21st, and I think according to the out-of-hours

23 filings rules that counts as filing on the 21st of October.

24 JUDGE MOLOTO: So be it. You say it was dated -- the date given

25 to it was the 22nd, the copy I have is 21st, sir. Then it seems to have

Page 37

1 the correct date. If you say it was filed on the 21st, then it was just

2 a question of late filing.

3 MR. ROGERS: It was. I didn't want Your Honours to think we did

4 file late because we do try to meet our deadlines. In relation to where

5 we head from here, we've had some very brief discussions but we plan to

6 meet again after this Status Conference to further our discussions, and I

7 hope that they will bear more fruit than has currently come on to the

8 vine. We have received the Defence response to our proposed agreed

9 facts. At the moment it's a fairly limited range of agreements. I

10 expect we'll be able to eliminate the armed conflicts, and that's good

11 because that will reduce the number of witnesses that need to be called,

12 and, in fact, is a major components of any case in here. So that is --

13 it may seem limited, but, in fact, it is real progress. We just need to

14 finalise the wording. And I think we'll also be able to eliminate some

15 of the more technical evidence relating to forensics. There have been

16 some proposals back to us, we can look at the precise wording, and I

17 think we'll be able to reduce that.

18 The more difficult areas, I think, will be relating to control

19 and the position of the three accused. And that may be to some extent

20 effected by how we propose to put the case. I think having spoken with

21 my learned friends this morning, we can have some further fruitful

22 discussion today which will help us to narrow the issues further, and it

23 may well be that my learned friends will be proposing themselves some

24 agreed facts relating more specifically to the judgement. Our position

25 was taken from the indictment, we needed to start somewhere, and so we

Page 38

1 prosed matters that came from the indictment to see to what extent my

2 learned friends would agree with that.

3 Their approach, I think, and it's not unreasonable, is to go back

4 to the judgement and propose effectively adjudicated facts from within

5 the judgement. And I leave it for them to make any further explanation

6 they wish to make about that, but, if they do propose those things, of

7 course, we'll look at them and consider the extent to which we can reach

8 that agreement having regard to those adjudicated facts. Of course, the

9 difficulty with adjudicated facts is their rebuttable presumptions, and

10 it might be that we want to rebut the presumption that was found in the

11 trial that was not based upon the totality of the evidence we would put

12 forward. But in short, I think we -- there is further discussion we can

13 have today and I think it will prove to be fruitful, and I hope that we

14 will be able to meet the 18th of November to at least define what is and

15 is not an agreement for the purposes of the trial.

16 JUDGE MOLOTO: Thank you, Mr. Rogers. Just before I call the

17 Haradinaj Defence team to stand up. Just two comments on what you've

18 told us. The first two of the areas that you say you are still

19 discussing on whether you can get agreement on, namely the armed conflict

20 and the forensic stuff, we discussed this at the last Stats Conference

21 and the expectation was that, in fact, those were the areas that you will

22 deal with as a priority and most urgently. I'm surprised to hear that,

23 in fact, they are still to be discussed and have not been discussed yet.

24 MR. ROGERS: Your Honour, the wording that has come back from the

25 Defence we can finish that today and relating to armed conflict.

Page 39

1 JUDGE MOLOTO: I hear you.

2 MR. ROGERS: There is a technical problem with the proposal

3 arising from the judgement, and when one compares it with the judgement

4 in Mos as to structure of the armed, but I think we can iron that out

5 today, I'm confident.

6 JUDGE MOLOTO: I hope you will be able to iron that out. Let's

7 hear what the Defence going to say.

8 Mr. Emmerson.

9 MR. EMMERSON: Your Honour, can I endorse Mr. Rogers' observation

10 that we do not anticipate any difficulty in reaching agreement on matters

11 such as the forensics which were, in any event, agreed in the original

12 trial, or, indeed, in due course, on the armed conflict question. That

13 simply will be a form of words issue. More controversially, one

14 understands why the Prosecution did it this way, but the Prosecution's

15 draft of the agreed facts essentially involves a recitation of broadly

16 based allegations as they were put at the start of the last trial because

17 they are drawn directly from the indictment on --

18 JUDGE MOLOTO: May I interrupt you, Mr. Emmerson.

19 MR. EMMERSON: Yes.

20 JUDGE MOLOTO: I don't expect you to argue whether the facts

21 proposed should or should not be agreed. I just want to find out whether

22 you have agreed or you haven't agreed. I think you can argue with your

23 learned friend outside of here to say, Look here, you are not going to

24 present allegations to me, recite the indictment to me as a proposed

25 agreed fact.

Page 40

1 MR. EMMERSON: I was simply explaining to Your Honour how we end

2 up here at this Status Conference without a full set of agreed facts.

3 The short point, and I hope I'm reiterating what Mr. Rogers said to you,

4 is that the Defence is approaching it from the point of view of those

5 facts which were found after a trial. The Prosecution starting point

6 being the allegations that they were making at the start of the trial,

7 and obviously there is a need for some serious discussion and some work

8 to be done between now and the 18th to ensure that what is placed before

9 the Trial Chamber for the partial retrial accurately reflects the facts

10 as found in the original trial. And I'm sure, in due course, there will

11 be no difficulty in relation to that. Can I make one --

12 JUDGE MOLOTO: May I also make some observation on this point of

13 adjudicated facts. We are finding ourself in a very unique position here

14 in a retrial. For purposes of this retrial, how do the parties interpret

15 the judgement of the Appeals Chamber on those issues that must come back

16 here. If --

17 MR. EMMERSON: Yes.

18 JUDGE MOLOTO: Can they be said to have been adjudicated if the

19 appeals Chamber says, No, no, no, I reject all this, go back and try the

20 case again.

21 MR. EMMERSON: Can I interject that Your Honours anticipated

22 precisely the rather general point that I was going to move on to

23 immediately which is the architecture of the retrial in the light of the

24 form of the Appeals Chamber's judgement. There's obviously two

25 dimensions to the issues that fall to be tried in relation to the

Page 41

1 specific counts that will form the subject of the partial retrial.

2 There is individual criminal responsibility, and there is an

3 allegation of joint criminal enterprise relating to the KLA headquarters

4 and alleged prison at Jablanica. And Your Honour will see and will have

5 noted, and, indeed, recited the operative words of paragraph 50 of the

6 Appeals Chamber judgement which was effectively to order a retrial on

7 those counts in respect of the alleged participation of the accused in a

8 joint criminal enterprise to commit crimes at the KLA headquarters and

9 the prison in Jablanica.

10 Now, that is a joint criminal enterprise of a very different

11 scope to the joint criminal enterprise that was alleged in the original

12 indictment, which was a, if I can use this expression, Dukajin

13 region-wide alleged joint criminal enterprise. As a result of which the

14 Prosecution alleged a very large number of individual crimes of which the

15 Jablanica alleged crimes constitute a very small proportion.

16 The Trial Chamber acquitted all three accused definitively and

17 finally of both individual responsibility for all other crimes on the

18 indictment and also for joint criminal responsibility through a JCE for

19 all other crimes on the indictment, and by implication necessarily

20 therefore for the existence of a joint criminal enterpriseDukajin-wide.

21 Hence, the Appeals Chamber judgement confines, at paragraph 50, the scope

22 of the retrial, which in our submission is to be conducted within the

23 four corners of the language of paragraph 50 to a joint criminal

24 enterprise to commit crimes at the KLA headquarters in Jablanica, those

25 are the words used, that is the scope of retrial. So to that extent, all

Page 42

1 adjudicated facts that relate to any other form of criminal

2 responsibility individual, direct, or joint are agreed facts, or, rather,

3 adjudicated facts which stand and which were not appealed by the

4 Prosecution.

5 And there is no sense in which in our submission the Prosecution

6 can be permitted, or, indeed, I hope would even attempt to use these

7 small group of counts as a trojan horse, so to speak, through which to

8 re-open questions of a broader joint criminal enterprise. Now, the

9 reason I go into that short explanation at this stage is because it has

10 implications, not solely for the agreed facts question, but also for the

11 scope of the indictment which is to be filed by the 28th of October, and

12 for a proper definition of the issues between the parties and therefore

13 the scope of any evidence which may be relevant to those issues.

14 Now, Your Honour indeed raised this issue at the last

15 Status Conference indicating that Your Honour had your own view about

16 what the scope of the retrial might be, although at this stage the

17 Trial Chamber was not inclined to share that view with the parties

18 without first, quite properly, hearing fully argued submissions on the

19 point if indeed there remains a dispute.

20 My sense, from a brief discussion with Mr. Rogers this morning,

21 is that on reflection that is unlikely to be very much dispute, because

22 the terms of paragraph 50 leave no room for misunderstanding and because

23 there is a definitive acquittal of all three accused on all other counts

24 and on the broader joint criminal enterprise. Therefore, Your Honour is

25 quite right to say we are in a rather unique position because this is not

Page 43

1 simply a retrial but a partial retrial, and, indeed, a retrial of a very

2 small part of what was a very large and broad-ranging indictment.

3 Now practical implications are these: First of all, for the

4 order that Your Honour has made that the parties jointly file a shortened

5 indictment by the 28th of October. I'm going to invite Your Honour to

6 vary that order simply to the extent of saying that the Prosecution

7 should file an amended operative indictment. Because at the moment

8 position is this: very kindly and as a matter of courtesy, the

9 Prosecution has circulated to the Defence a proposed shortened amended

10 indictment which effectively crosses out those individual allegations

11 where acquittals have been returned and not appealed but leaves intact

12 the very broadly expressed joint criminal enterprise, which the

13 Prosecution failed to prove, and in respect of which acquittals the

14 Prosecution mounted no appeal. That is obviously an untidy and

15 potentially unsatisfactory situation where anyone to be under the miss

16 apprehension that the indictment, as it would then stand, properly

17 identified the issues for the retrial because it wouldn't, plainly the

18 retrial would be confined to a much smaller allegation of joint criminal

19 enterprise, namely that encompassed in the enabling order of the appeal

20 Chamber at paragraph 50.

21 So further work clearly has to be done on the indictment. But

22 having made this point, both here in the Status Conference and directly

23 in discussions into parties, which will continue after the hearing, I

24 would respectfully submit that it is not for the Defence to frame the

25 scope of the indictment. We may well wish, in due course, to take points

Page 44

1 on the way in which the indictment is framed. And we would not wish,

2 therefore, to be in any way a party to the framing of the indictment

3 beyond pointing out that the current proposal is plainly one which

4 extends way beyond the proper scope of a retrial.

5 JUDGE MOLOTO: Well, I take the point that the framing of the

6 indictment is the sole responsibility of the Prosecution, but that order

7 was worded in that fashion precisely because of the fact that there was a

8 need for the parties to have a common understanding of what is coming

9 back for retrial.

10 MR. EMMERSON: Yes.

11 JUDGE MOLOTO: I would hate to have the Prosecution come here on

12 a particular indictment and you coming and you just crossing over like

13 that and not meeting because then you might not have had sufficient

14 notice to what it is you are supposed to meet.

15 MR. EMMERSON: Exactly.

16 JUDGE MOLOTO: And to the extent that you are having discussions

17 with the Prosecution on the scope of the indictment, to that extent are

18 you making a contribution to what should go into the indictment, and it

19 was with that spirit that the order was framed in those words.

20 MR. EMMERSON: I think we are all very grateful for focusing the

21 party's attention on the very issue that Your Honour raised at the last

22 Status Conference.

23 JUDGE MOLOTO: Indeed.

24 MR. EMMERSON: And let nobody be under any misapprehension, it is

25 inevitable in the situation in which we find ourself that there will be

Page 45

1 some room for conflict between the parties as to what the scope of the

2 retrial properly is.

3 JUDGE MOLOTO: Well, it was quite clear in the first

4 Status Conference that the positions of the parties was quite -- as to

5 what should happen was absolutely different.

6 MR. EMMERSON: Yes, I think -- I'm sorry to speak across,

7 Your Honour, but I think as time progresses closer to the retrial, minds

8 may become focused rather more clearly than they were at that stage, and

9 what may have been rather unfocused thoughts are perhaps now taking

10 rather firmer shape. And I hope that in the short submission that I've

11 made, I've set out what is a very clear and I hope simple position that

12 this is a case which is only before the Trial Chamber again by virtue of

13 an order of the Appeal Chamber, which is encompassed in paragraph 50 of

14 their judgement, the disposition. And it is only to the extent of that

15 paragraph that any retrial can lawfully be conducted, and we would

16 respectfully suggest, and I'm sure Mr. Rogers won't dissent from this,

17 that the indictment and indeed the scope of his case as presented and any

18 evidence he adduces must fall full square within that architecture.

19 JUDGE MOLOTO: I judicially refrain from commenting on that.

20 MR. EMMERSON: Without saying any more about it, I think that

21 will form the basis of the discussion that proceeded this morning. I

22 anticipate we will have very considerable co-operation from the

23 Prosecution and the Defence in that regard. But having said that, what,

24 therefore, I would invite Your Honour to do is simply to amend the order

25 so that it simply requires the Prosecution to file an amended indictment

Page 46

1 by the 28th of October so that the Defence are in a position to reserve

2 their right, which they may well need to do during trial to take legal

3 issue with any point arising on the indictment. I wouldn't want it to be

4 thought that we in any way contributed to a document which we were

5 subsequently to attack.

6 JUDGE MOLOTO: The order is so amended, if that's sufficient.

7 MR. EMMERSON: I'm very grateful for that. Can I then move on to

8 another point which Your Honours just raised, which relates -- rises, if

9 I may say so, directly from the point that you made; namely, Your Honour

10 is quite right to anticipate a risk that unless this issue is battened

11 down pretty clearly, pretty quickly, the two parties are going to be

12 anticipating a different scope of draft and that really has to be

13 resolved, and we hope we will resolve it by agreement. But the fact of

14 the matter is, the Defence do not at present know what the Prosecution

15 intends to adduce as its case at trial. In other words, we don't know

16 the case we have to meet. And at the moment, the only order that

17 requires the Prosecution to enlighten us is the order that the

18 Prosecution filed its final list of witnesses in pre-trial brief by the

19 30th of November.

20 With the best will in the world, we very much hope that we will

21 have a much clearer picture through co-operation between the parties and

22 through the Prosecution, if I may say so, put it this way, laying its

23 cards at least largely on the table before the 30th of November. But

24 given that that is the outer limit date by which the Prosecution is

25 required to nail its colours to the mast in respect to the point that

Page 47

1 Your Honour has raised, it does, with respect, seem to me on reflection

2 that 14 days is too short a time to expect the Defence to respond.

3 Ordinarily, of course, pre-trial briefs can be scheduled 14 days apart

4 because the Defence will have had disclosure of the whole of the

5 Prosecution case, so to speak, in advance and will therefore be in a

6 position to anticipate what the case they have to meet is and then simply

7 to amend what is already a very substantially drafted document in the

8 light of the Prosecution's pre-trial brief. But at the moment, unless

9 Mr. Rogers is prepared to agree to an earlier date for a clear statement

10 of his case, we are not going to know until the 30th of November how far,

11 if at all, the Prosecution wants to adduce evidence going beyond

12 Jablanica. And we would respectfully, therefore, invite Your Honour to

13 extend by seven working days, the deadline for the submission of the

14 Defence pre-trial brief. That seven working days, in facts, will take us

15 to the beginning of UN holiday, and I was wondering in those

16 circumstances whether - I know Mr. Rogers wouldn't object to this -

17 Your Honour would consent to keeping the timetable as it stands other

18 than that the Defence submit their pre-trial brief on the fist working

19 day after the Christmas vacation which would be the 8th, I think, of

20 January.

21 JUDGE MOLOTO: Let me make a few points. First of all, those

22 dates were proffered by the parties themselves.

23 MR. EMMERSON: I appreciate that.

24 JUDGE MOLOTO: And secondly, you referred to you don't know how

25 far beyond Jablanica Mr. Rogers might want to go. At the last

Page 48

1 Status Conference, there were positions taken by the parties which I

2 urged the parties to look at. The Defence anticipated that the

3 Prosecution must call the two outstanding witnesses in addition to what

4 is on the record in the previous case, and that was not the view of the

5 Prosecution. And it was actually in the light of that that I asked the

6 parties to make sure that they know exactly what they are coming for.

7 If we go by what the Prosecution's position was at the time, we

8 can expect or anticipate that if they are not only calling the two, there

9 they are going to call more people to prove their case, to prove the six

10 counts. I would, however, be surprised if they tried to proffer any

11 evidence beyond the Jablanica area.

12 MR. EMMERSON: I would be surprised as well, but I don't know

13 that the Prosecution has yet committed itself formally to that position.

14 If Mr. Rogers is in a position to do that now --

15 JUDGE MOLOTO: May I suggest then that the deadline for the

16 Defence be not tampered with at this stage, you receive what you are

17 going to get from the Prosecution, and if you think from what you got

18 from the Prosecution you will not be able to respond within 14 days, you

19 can approach the Chamber --

20 MR. EMMERSON: I'm very grateful.

21 JUDGE MOLOTO: -- and you can do so almost informally, seeing

22 that we are still in the Status Conference -- in the pre-trial phase

23 should you find that or by a very shortened motion.

24 MR. EMMERSON: I'm very grateful for that. I think that

25 Your Honour appreciates the position of the Defence in relation to these

Page 49

1 matters and I think it's very clearly set out. I mean, if Mr. Rogers is

2 in a position to give an indication this morning, obviously it will

3 shorten things very considerably. Can I just raise one final matter.

4 It's perhaps more in hope than expectation, but can I put it this way, is

5 there any chance that we might persuade Your Honour to give us an

6 indication as to the likely start date for the trial?

7 JUDGE MOLOTO: The Chamber would like to start the trial as soon

8 as possible in the new year.

9 MR. EMMERSON: Very well, thank you very much indeed.

10 JUDGE MOLOTO: Thank you. Mr. Guy-Smith.

11 MR. GUY-SMITH: [Microphone not activated]

12 JUDGE MOLOTO: For some, reason, Mr. Guy-Smith, you are not

13 coming through my ear. You are coming directly and being soft in tone.

14 MR. GUY-SMITH: How are we doing now?

15 JUDGE MOLOTO: Much better. Thank you.

16 MR. GUY-SMITH: Okay. I don't want to go over those grounds that

17 have already been discussed by Mr. Emmerson, but I do want to raise one

18 structural point that I think is important for the Chamber's

19 consideration, especially because of some of the comments that you've

20 made. And I think the best example we have here is the issue of armed

21 conflict which we all know is a chapeau requirement. It is our position

22 that no party appeal the issue, that the Chamber, at the Trial Chamber

23 level -- at the Appeals Chamber level, the matter was once again taken as

24 being decided, and therefore this issue is no longer in dispute. It is,

25 I suggest, the law of the case. And the reason that I'm saying that is

Page 50

1 because the use of the term and the use of the analysis of adjudicated

2 facts does give rise precisely to what Mr. Rogers has suggested which is

3 that they are rebuttable. As a matter of fact, in our situation which is

4 a very unique situation, the reversal was based specifically on the six

5 counts and was based specifically on a very discreet point, that point

6 being the failure of the Prosecution to call those two specific

7 witnesses. With regard to those facts that were found by the

8 Trial Chamber, those facts were not disturbed by the Appeals Chamber in

9 this reversal. And I would suggest to you, and I think that a starting

10 point for building this case, is that we have a body of law which is the

11 law of the case of this specific case upon which all parties can rely.

12 It tightens the case, it focuses the case, and it leaves us in a position

13 where we do not have to concern ourselves with re-litigating matters that

14 neither party ever contested or disputed at the appellate point.

15 I think that based on the conversations that we have had that we

16 will be able to achieve relative agreement about most matters in the near

17 future. But part of that once again deals with specifically whether or

18 not the Prosecution is willing to limit themselves to the findings made

19 in paragraph 50 of the Appeals Chamber indictment and the JCE that they

20 have pled in this case. And at some level I think a part of what is

21 occurring is that Mr. Rogers may well be putting the cart before the

22 horse here because there is a JCE that has been pled and there are some

23 specific crime-based counts that need be resolved. Nothing more, nothing

24 less.

25 JUDGE MOLOTO: Thank you, Mr. Guy-Smith.

Page 51

1 Mr. Harvey.

2 MR. HARVEY: Your Honour, I'm not going to belabour issues that

3 have already been well canvassed by my learned friends. I think we have

4 already a strong basis for substantial agreement, the armed conflict

5 issue is not going to contain anyone at all. Much of what the original

6 Trial Chamber set out, particularly in paragraph 63 to 100 of the

7 Trial Chamber judgement, will be something that forms the basis for, I

8 think what Mr. Guy-Smith has put well, as being the law of the case and

9 the facts of the case. So I think we are going to get close, and one of

10 the great advantages often of holding a Status Conference is that it

11 brings the parties together around the table outside the courtroom,

12 perhaps even more effectively than it does inside the courtroom. And I

13 think by the end of today, we'll be a lot closer to where Your Honour

14 would like us to be.

15 JUDGE MOLOTO: Thank you very much, Mr. Harvey.

16 Mr. Rogers, do you have any reply specifically, for my purposes,

17 to Mr. Guy-Smith's points of the law of the case?

18 MR. ROGERS: Your Honour, yes, I do. Mr. Guy-Smith raised the

19 question of adjudicated facts. What I was hoping we would be able to

20 achieve is an agreement on a point or an agreement on an issue that

21 doesn't revolve around adjudicated facts because they are rebuttable

22 presumptions. And the last thing I wanted to happen was for us to

23 proceed along an adjudicated facts basis on armed conflict and then to

24 end up finding, having chosen not to call witnesses relating to that,

25 that the parties seek then to relitigate the armed conflict by argument

Page 52

1 within the papers on the evidence that was available. Now, I note there

2 are shakes of heads, and I'm delighted to see that there are shaking of

3 heads and that that isn't going to happen, hence it seems to me sensible

4 simply to just to agree the issue and then it's out of the way, and I,

5 for one, remain comforted that that isn't going happen later on in the

6 case.

7 As to the law of the case, as I was listening, I just made a note

8 to myself that there are at least two witnesses that were not heard, and

9 the extent to which their evidence may impact upon the facts that were

10 found by the prior Chamber, of course we don't know yet until we

11 determine whether those two witnesses come again. So I'm hesitant on

12 this notion of the law of the case because I'm not sure I entirely agree

13 that the whole of the case has been settled when there are -- there's

14 all -- and may be outstanding evidence or new evidence that we need to

15 deal with. I understand my learned friends will argue with me, will take

16 issue if I seek to go outside of the four square walls, as they put it,

17 of the counts, and the four square walls of whatever the JCE is. And we

18 may litigate that and argue about it, and the Court will rule.

19 But at the moment, I don't fully accept that we do have a law of

20 the case. However, I'm very content to receive any suggestions that my

21 learned friends wish to make based upon that judgement relating to issues

22 in the case concerning control command, that sort of thing, zone,

23 geographical area, et cetera, et cetera. And we'll look at them and if

24 we agree, Yup, we don't want to litigate that, we will agree it. That's

25 how I see it.

Page 53

1 Could I just make one correction to the record. My learned

2 friend Mr. Guy-Smith referred to it being a failure of the Prosecution to

3 call two witnesses. I seem to recall that the Appeals Chamber judgement

4 laid the criticism not at the door of the Prosecution when it reversed

5 the acquittals. So that doesn't appear to be entirely accurate.

6 Your Honour, my learned friend Mr. Emmerson asked me whether I'm

7 prepared to commit to the Jablanica. At the moment I'm not, and he knows

8 that I'm not prepared to do that today. But I'm very pleased that we

9 will be able to have some constructive discussions. This is the first

10 time I think we've been able to have a very focused discussion on what

11 the scope of the indictment may be. Mr. Emmerson raised it with me this

12 morning. I think it's the first time we've had that discussion, of

13 course the first time he has been able to be here today. So I'm pleased

14 that that has been raised, and I think we can take that on and move it

15 forward. However, I do detect, perhaps I'm wrong, but I do detect a

16 slight difference of emphasis between Mr. Emmerson and Mr. Guy-Smith

17 perhaps, maybe I've misunderstood. But Mr. Guy-Smith's approach was that

18 the JCE has been pled and all we are here to do deal with are the counts.

19 I hear from Mr. Emmerson that he thinks that the JCE has not been pled

20 which is why he is inviting us to look at the order of the

21 Appeals Chamber and review the indictment to plead what he thinks the

22 case is. And it would be very helpful if my learned friends at least

23 were able to be consistent because I agree with Your Honour that it would

24 be far better if we together, which is why I suggested a joint motion,

25 could agree what the scope of this case is, rather than facing

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1 cross-litigation from my learned friends taking either point, you know,

2 you don't amend the indictment, Mr. Emmerson takes a point; I do amend

3 the indictment, Mr. Guy-Smith takes the point, and we end up litigating

4 whether I should or shouldn't have amended the indictment. I hope we

5 might clear that up between us.

6 MR. EMMERSON: Can I just in a sentence respond to that? There's

7 certainly no tactical division of approach between myself and

8 Mr. Guy-Smith. We obviously discussed what is a very difficult issue.

9 Having said that, the very reason why I invited Your Honour to amend the

10 order so that it would be the Prosecution's responsibility was in order

11 to preserve the right of each individual accused to make such submissions

12 as are properly open to them on advice as to the appropriateness and the

13 lawfulness of the indictment as framed, and I certainly cannot undertake,

14 and I am sure Mr. Guy-Smith and Mr. Harvey can't either, that we will

15 necessarily give the same advice or received the same instructions, which

16 is precisely why it is the Prosecution's job to frame the indictment.

17 As matters currently stand, they have the indictment which

18 extends far beyond the proper scope of the retrial. There may be, I

19 don't know, arguments against them reframing a wholly different JCE, but

20 equally there are arguments against them continuing in the trial where

21 the JCE, as pled, goes very much more broad than the proper scope of the

22 trial. And how that matter is to be resolved is a technical and

23 difficult question, clearly the Appeals Chamber is of the view that there

24 must be a retrial; therefore, there must be, in due course, an

25 indictment. But it is not, I don't mean this rudely in any way but as I

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1 think is becoming perhaps even more apparent, it is not, should not, and

2 cannot be the role of the Defence to contribute to the drafting of the

3 indictment. It's Mr. Rogers' job.

4 JUDGE MOLOTO: Thank you very much, Mr. Emmerson. Let me say

5 that once again I would like to strongly urge the parties to continue

6 their discussions with the view to reaching agreements, if at all

7 possible, so as to reduce the evidence that is to be adduced in the

8 partial trial. Again I can pick up the positions of the various parties

9 here. My understanding of the definition of the law of the case by

10 Mr. Guy-Smith was slightly different from yours, and I would imagine that

11 further discussions would clear you. You would be able to ask him what

12 he means by that outside court, which you are not able to do here, maybe,

13 or may not -- you could do it, but it may perhaps not be appropriate. So

14 the Trial Chamber urges the parties please go ahead. And, yes, you did

15 say, Mr. Rogers, that you wanted a joint motion on this point, but

16 legally speaking, the indictment is responsibility of the Prosecution.

17 So I would imagine that having had your discussions with the other

18 parties and having agreed certain issues, the Prosecution will go and

19 frame an indictment, hopefully in line with what has been agreed but

20 taking sole responsibility for the indictment.

21 If that would be a median position between the two positions.

22 MR. ROGERS: Your Honour, yes. We, like my learned friends, have

23 to look at the order that we've received and try to fathom it. And to

24 that extent, I think there needs to be some understanding that we, too,

25 are trying to comply with an order that the Court has made and that the