Tribunal Criminal Tribunal for the Former Yugoslavia

Page 187

 1                           Wednesday, 6 May 2009

 2                           [Status Conference]

 3                           [Open session]

 4                           [The accused entered court]

 5                           --- Upon commencing at 2.18 p.m.

 6             THE REGISTRAR:  Good afternoon, Your Honour.  This is case number

 7     IT-95-5/18-PT, the Prosecutor versus Radovan Karadzic.

 8             JUDGE BONOMY:  Good afternoon, everyone.

 9             Mr. Karadzic, are you in good spirits?

10             THE ACCUSED: [Interpretation] As ever, thank you, Your Lordship.

11             JUDGE BONOMY:  Thank you.  I want to address myself first of all

12     to the Prosecution today, so I shall ask for appearances on behalf of the

13     Prosecution.

14             MR. TIEGER:  Good afternoon, Your Honour.  Alan Tieger,

15     Hildegard Uertz-Retzlaff, Katrina Gustafson, and case manager Iain Reid

16     for the Prosecution.

17             JUDGE BONOMY:  Thank you.

18             The first issue that I want to address, Mr. Tieger, is

19     disclosure.  The Trial Chamber issued a decision on the 27th of April in

20     relation to a motion on the modalities of Rule 66(A)(ii) disclosure, and

21     at that stage the Prosecution were content to adopt a method which was

22     more or less that sought by the accused.  However, it had to be put into

23     effect.  Has that been done?

24             MS. UERTZ-RETZLAFF:  Yes, Your Honour.  We are actually on track

25     in relation to disclosure on external hard drive.  This will all be done

Page 188

 1     in time, and we are confident that we will meet the 7 May disclosure

 2     dead-line except for one item that is actually currently an issue, a

 3     technical issue, mostly, and that's the disclosure of audio files.  And

 4     we have actually provided a notification on the difficulties that we are

 5     encountering in this respect, and we filed it yesterday.  And we will not

 6     be able to provide all the audio files by 7 May.  That's technically not

 7     possible.

 8             JUDGE BONOMY:  Unlike you, Ms. Uertz-Retzlaff, I'm unable to

 9     understand entirely how this difficulty has arisen.  Can you help me a

10     little more in explaining what the work is that needs to be done and why

11     these files are not capable of instant reproduction for use by the

12     accused.

13             MS. UERTZ-RETZLAFF:  Your Honour, we have filed the details

14     actually in our notification, and the problem is that those things need

15     to be transferred first from the Registrar to the Prosecutor's office and

16     then they need to be technically processed.  And as it is mentioned in

17     the submission, it takes per days file -- audio file, it takes at least

18     20 to 30 minutes and often several hours when the files are corrupted.

19     And we have explained that the pace is just not that fast as it can be --

20     so that we can meet the 7th of May.  If you want to have some more real

21     technical details, Mr. Iain is actually, our case manager, dealing with

22     these problems, and he is definitely better-placed than myself to go into

23     the technical details.  I thought that what we had provided was actually

24     sufficient.

25             JUDGE BONOMY:  In your notification you refer to 15 to

Page 189

 1     20 per cent of the audio files having been found to be corrupted.  These

 2     ones, are they digital files or ...

 3             MS. UERTZ-RETZLAFF:  Yes, they are.

 4             JUDGE BONOMY:  All right.  So am I understanding the problem

 5     correctly in that normally these would be very quickly reproduced, but

 6     because of corruption you have to go back to the original which is an

 7     analogue?

 8             MS. UERTZ-RETZLAFF:  Perhaps Mr. Reid can better explain it,

 9     instead of telling first me and then I tell you.

10             JUDGE BONOMY:  Your moment of glory, Mr. Reid.

11             MR. REID:  When the audio-visual department uses a special

12     programme that they use to process the audio from the various booths,

13     it's called FTR, and when one of these sets of audio from a day's session

14     is found to be corrupted, they have to go back to the original digital

15     tapes, and they then have to record the audio coming off of that.

16             JUDGE BONOMY:  All right.  So everything is digital, but it just

17     takes longer because of corruption, basically?

18             MR. REID:  Yeah, because it's from a tape.

19             JUDGE BONOMY:  Now, Ms. Uertz-Retzlaff, is there anything else

20     you want to say on that matter?

21             MS. UERTZ-RETZLAFF:  No.  In relation to disclosure everything

22     else is on track.  There's actually nothing to mention in this regard.

23             JUDGE BONOMY:  And what is the extended date that you seek in

24     relation to these audio files?

25             MS. UERTZ-RETZLAFF:  End of June, Your Honour, 30 of June to be

Page 190

 1     correct.

 2             JUDGE BONOMY:  Now, Mr. Karadzic, there are two issues here.

 3     There is the question of Rule 66(A)(ii) disclosure in general, and that's

 4     the disclosure of witness statements, and the Prosecution appear to be

 5     doing that in cooperation with the Registry by the means that you asked

 6     them to do it.  So can I take it that in general this form of disclosure

 7     is working satisfactorily?

 8             THE ACCUSED: [Interpretation] First of all, I'd like to thank the

 9     Trial Chamber and Your Lordship for appointing Mr. Sladojevic so that now

10     my team can be complete; it will be complete within ten days.  And I'd

11     also like to thank Ms. Davidson for sending me the agenda in advance of

12     the conference.  That will help me a great deal, and it will help even

13     more if I'm provided it earlier on.  I'd also like to congratulate the

14     Roma and the Serbs on St. George's day which it is today and to ask him

15     not hold it against us for working during St. George's day.  St. George's

16     day protects the English, and I assume the Scots as well, I don't believe

17     he's against the Scots, so we seem to be holding all these status

18     conferences during Serb feast days and holidays.  Now as far as

19     disclosure is concerned, I don't oppose extending the time.

20             JUDGE BONOMY:  Before we move on, Mr. Karadzic, I'm shocked to

21     hear your sympathy for St. George, but I understand it nevertheless.

22     He's not a protector of the Scots, so he is not one that you can

23     particularly invoke in this exchange with me.  However, please get on to

24     disclosure.  And in case it is of interest to you, it is to St. Andrew to

25     whom I turn, rather than St. George.

Page 191

 1  THE ACCUSED: [Interpretation] Yes, I'm glad to hear that. I know St. Andrew

 2  the First-Called, and I know that the Irish have Patrick, and the

 3  English have St. George, and St. George is much celebrated among our people.

 4             Now, as far as disclosure is concerned, I'm not opposed to giving

 5     an extension of time to the Prosecutor, as much time as they need, and I

 6     would be even less opposed to that had I been able to defend myself while

 7     at liberty.  But I don't oppose it anyway in detention.  But what I want

 8     to say is something else.  In light of the decision made by the

 9     Trial Chamber about my knowledge of the language - and this is something

10     I complained about - and if, Your Lordship, you take a look at the

11     situation, you'll see that I have to listen to 600-odd days of testimony

12     for me to be able to understand it all, which means that I'll need at

13     least 300 days.  Now they need a lot of time to tape all this, but that's

14     much easier because it's a technical matter, whereas I have to go through

15     all the material, to understand it, and to prepare my Defence on the

16     basis of 550 days of testimony instead of it being provided to me in the

17     Serbian language and in transcript form.  And I'd like to raise some

18     other difficulties later on in due course that stem from the position of

19     the OTP and its conduct.

20             JUDGE BONOMY:  Well, thank you.  I take that as no objection

21     being stated to the requested extension of time for disclosure of the

22     audio-tapes.

23             I take it, Ms. Uertz-Retzlaff, they are being disclosed

24     systematically as they are translated rather than held back for

25     disclosure in one batch at the end?

Page 192

 1             MS. UERTZ-RETZLAFF:  Your Honour, the issue actually is here with

 2     the external hard drive.  We are actually producing this onto the

 3     external hard drive, and once it is completed then we provide this

 4     external hard drive.  It's not that we can now do it piecemeal, at least

 5     that's my understanding.

 6                           [Prosecution counsel confer]

 7             JUDGE BONOMY:  Well, that's plainly not going to be satisfactory.

 8     An extension to the 30th of June for all disclosure of these tapes is not

 9     acceptable.

10             MR. TIEGER:  Your Honour, if I may, it seems to me possible - and

11     Mr. Reid has just confirmed that - that we can provide the external hard

12     drive with the -- tomorrow with the materials that have been produced to

13     date and thereafter provide the completed tapes on DVD seriatim.

14             JUDGE BONOMY:  Yeah, thank you.  Well, on that basis the Chamber

15     is minded to grant your request but to urge you to disclose material as

16     soon as it is complete in a form that can be transferred to the accused,

17     so that means regular disclosure during the period up until the 30th of

18     June.

19             MS. UERTZ-RETZLAFF:  We will do so, Your Honour.  It was a

20     misunderstanding of the technicals involved on my side.

21             JUDGE BONOMY:  Thank you.  And I read into what you've said so

22     far, Ms. Uertz-Retzlaff, that the disclosure of expert witness material

23     is also on track.  The dates differ for some, but can I take it that that

24     will be completed according to the anticipated schedule?

25             MS. UERTZ-RETZLAFF:  Yes, Your Honour.

Page 193

 1             JUDGE BONOMY:  Thank you.

 2             I now want to turn to certain of the motions which are currently

 3     before the Trial Chamber to see if we can speedily resolve the issues

 4     that arise from these.  And the first of these that I wish to address is

 5     the motion challenging the form of the indictment relating to averments

 6     about joint criminal enterprises.  And these averments assert the

 7     involvement of the accused in four separate joint criminal enterprises,

 8     but the averments assert also that the first of these is an overarching

 9     joint criminal enterprise.

10             That would tend to indicate that the other three somehow or other

11     fall within the ambit of this overarching joint criminal enterprise, but

12     a closer reading of the indictment indicates that the third and fourth do

13     not on the face of the indictment appear to fall within the overarching

14     joint criminal enterprise, albeit they are said to be related to it.

15             Now, that would appear to be the effect of a reading of the

16     indictment in light of this challenge.

17             Mr. Tieger, can you assist me in clarifying that that is in fact

18     what is intended in these averments?

19             MR. TIEGER:  With some modification, I believe, Your Honour.  I

20     appreciate the opportunity both to clarify this issue with the Court and

21     with respect to the Defence pleadings.  In particular, I noted that the

22     Defence pleading asserted in one of its paragraphs that - and I can find

23     that shortly - that the objectives as stated in paragraph 8 of the

24     indictment of the four joint criminal enterprises were identical.  And I

25     think it's important to clarify that.  If the Court turns to paragraph 8

Page 194

 1     of the indictment, it identifies the -- after describing and articulating

 2     the overarching joint criminal enterprise, it specifies the objectives of

 3     the three additional joint criminal enterprises, modes of the liability

 4     for the crimes alleged as -- and they are articulated there:  The terror

 5     campaign in Sarajevo, the elimination of Bosnian Muslims in Srebrenica,

 6     and the taking of UN personnel as hostages, articulating further that the

 7     pursuit of these objectives, the objectives of these discrete joint

 8     criminal enterprises alleged, was related to the objective of the

 9     overarching joint criminal enterprise, to permanently remove Bosnian

10     Muslims.  And that, Your Honour, is further clarified in the interim

11     pre-trial brief, where there -- where we note the further -- the

12     relationship between the four joint criminal enterprises, identifying

13     again the distinction between the objectives alleged, but further

14     indicating that each of the discrete JCEs furthered the -- was related to

15     and furthered the objective of the overarching of JCE.

16             So I think it's fair to say that the distinctions noted by the

17     Court and the similarities noted by the Court are accurate.  With respect

18     to the Srebrenica JCE as the Court noted, and I think that's what it was

19     referring to, we have alleged that it emerged from and clearly advanced

20     the overarching JCE, but again these are alleged as separate and discrete

21     objectives.

22             JUDGE BONOMY:  Mr. Tieger, if you look at paragraphs 9 and 10 of

23     the indictment following the one you've just referred to, they seem to

24     encompass only, so far as Srebrenica is concerned, the Counts 2 to 8.

25     Now, they don't seem to encompass 9 and 10, which relate to the -- also

Page 195

 1     to the Srebrenica allegations.

 2                           [Pre-Trial Chamber and Legal Officer confer]

 3             JUDGE BONOMY:  Sorry, my mistake, Mr. Tieger.  The allegations in

 4     paragraph 9 and 10 do not appear to relate to the campaign of terror in

 5     Sarajevo, nor to the taking of hostages.  So these are Counts 9, 10, and

 6     11 of the indictment, and therefore it's difficult to see how the initial

 7     joint criminal enterprise can be said to be overarching.

 8             MR. TIEGER:  Well, I -- perhaps there's a misunderstanding in the

 9     sense of the term "overarching."  It was certainly not intended to

10     suggest the existence of a single JCE.  The sense of "overarching" is the

11     sense as described further in the interim pre-trial brief, and that is

12     that the -- during the course of this lengthy conduct -- criminal

13     campaign from 1992 to 1995, for the purposes identified both in the

14     interim pre-trial brief and in the --

15             JUDGE BONOMY:  Yeah, but does that mean "overarching" is

16     meaningless here and should be deleted?

17             MR. TIEGER:  No, I think in fairness it signalled the

18     relationship between the discrete JCEs and -- it seems to me that if they

19     were just alleged without benefit of that term, they would misleadingly

20     signal to the Court and to the accused that they were four individual,

21     discrete, unrelated JCEs.  And the use of the term "overarching" provides

22     greater clarity and understanding about the relationship between the

23     four.

24             JUDGE BONOMY:  Let's take as an example to try to clarify this,

25     what is the relationship between the so-called overarching joint criminal

Page 196

 1     enterprise and the joint criminal enterprise to take UN peacekeepers as

 2     hostages?

 3             MR. TIEGER:  Well, as we indicated in the interim pre-trial

 4     brief, Your Honour --

 5             JUDGE BONOMY:  No, no, no.  Let's look -- the indictment surely

 6     has got to tell the accused what the relationship between two joint

 7     criminal enterprises is.  You can't seriously be maintaining that it's

 8     good enough to do that in the pre-trial brief?

 9             MR. TIEGER:  Well, first of all, I think there -- the

10     jurisprudence provides for amplification in the -- by way of the

11     pre-trial brief, but having said that it seems to me the relationship is

12     pretty clear.  The effort -- the taking of hostages was in order to

13     forestall air-strikes, to maintain the strength of the Bosnian Serb

14     military machine, and therefore to preserve the ability to advance the

15     objectives of the overarching JCE.

16             JUDGE BONOMY:  And yet you don't say it's just part of the

17     initial JCE.

18             MR. TIEGER:  I think we say it more clearly, Your Honour.  We

19     identify the -- we -- the whole point of the JCE is not -- and if I may,

20     I don't think the Court is suffering from this misconception, but it's

21     clear to me that the accused in his motion was, and that was the

22     articulation of JCEs as separate charges, which they are not.  JCE is a

23     mode of liability which explains the relationship between the accused and

24     the crimes alleged, and by focus -- and the accused under his rationale,

25     as expressed in his motion, presumably had no difficulty with the manner

Page 197

 1     in which the first indictment was alleged.  This indictment, however, by

 2     focusing more carefully and narrowly and on the specific people involved,

 3     the specific times involved, the specific events involved provides

 4     heightened clarity about the accused's responsibility for the underlying

 5     crimes.  Underlying crimes remain the same, but now the accused and the

 6     Court are focused much more clearly on the specific events, people,

 7     times, and locations which give rise to that liability.  And that's the

 8     impact of the separate JCEs, and that's the benefit of the charging of

 9     separate JCEs.

10             JUDGE BONOMY:  All right.  Now, tell me what "overarching" means.

11             MR. TIEGER:  It means that -- well, first of all, it -- I think

12     it refers to both the temporal period and the objective.  And that means

13     that during the entire period of time encompassed by all four JCEs,

14     the -- the overarching JCE is the one that was in place for that period

15     of time.  And further, the objective of that JCE was related to and

16     furthered by the discretely alleged other three JCEs.

17             JUDGE BONOMY:  And just I think perhaps the last point I would

18     like you to clarify for me at the moment is:  Where is it you make clear

19     the relationship between the joint criminal enterprise to produce terror

20     in Sarajevo and the so-called overarching joint criminal enterprise?

21             MR. TIEGER:  Well, in the same sense that I described before,

22     Your Honour, I believe in paragraphs 6 through 8 is where the

23     relationship between the JCEs is described.  And again, as I indicated

24     before, in paragraph 8 the indictment avers that the pursuit of those

25     objectives - and in Sarajevo the objective was to spread terror, as the

Page 198

 1     Court has indicated - was related to the objective of the overarching of

 2     JCE.  And again that is amplified further in the pre-trial brief, but I

 3     would also say that the relationship between striking terror in a

 4     population and the effort to permanently remove a population is -- should

 5     not be a difficult one to grasp on the face of the indictment itself,

 6     but --

 7             JUDGE BONOMY:  That's why it's quite difficult to understand why

 8     you separate it from the overarching -- the so-called overarching.  But

 9     it seems such an obvious way of trying to remove the population, but you

10     don't say that that was the purpose of it.

11             MR. TIEGER:  I think we say in -- and again, I gather the Court

12     is somewhat reluctant to have me refer to representations in the

13     pre-trial brief, but I -- I -- since I'm going to say that in any event I

14     might as well refer to where it's previously articulated, and we identify

15     a number of the motives behind the terror campaign, including the effort

16     to secure concessions from the Bosnian government and the international

17     community, the interest in exacting revenge, the interest in securing

18     concessions in negotiations to cement gains and to obtain a resolution

19     consistent with the objectives of the Bosnian Serbs, and more generally

20     to secure and cement the objectives of the overarching JCE.  So the --

21     again, we're dealing with a mode of liability which deals with different

22     people in a specified location over a specified period of time for a

23     variety of purposes.  And the -- it seems to have greater focus and

24     greater clarity for the Court to focus on the allegation that there was a

25     campaign of terror rather than -- which had a number of motives as

Page 199

 1     alleged, a number of purposes, at different times and advanced different

 2     specific purposes, all of which were related to the overarching JCE.  So

 3     to the extent it's unnecessary at any given time and for any given --

 4     with any given witness to link it up to the JCE, the trial process is

 5     advanced.

 6             And furthermore, should -- I think we -- the immediate purpose of

 7     the terror campaign, the immediate objective as we've alleged, was not to

 8     physically remove portions of the Sarajevo population; it was instead to

 9     inflict terror on a besieged population.  And that is a different

10     objective.

11             JUDGE BONOMY:  Yeah, it is further complicated, as you know, by

12     the fact that the murders in Sarajevo are actually encompassed under the

13     overarching joint criminal enterprise, but that's deliberately done, is

14     it, in the indictment?

15                           [Prosecution counsel confer]

16             MR. TIEGER:  I don't believe that's the case, Your Honour.  I

17     mean, there are -- the -- there is an aspect in which the Sarajevo

18     municipalities are related to the -- there's part of the overarching

19     campaign was to physically remove people from Sarajevo, but have to --

20     yeah, I'd refer the Court to paragraph 65:

21             "The acts of murder that form part of the objective to spread

22     terror among the civilian population of Sarajevo through a campaign of

23     sniping and shelling were carried out between April 1992 and November

24     1995 by members of the Sarajevo forces; they include the deaths caused by

25     sniping and shelling described in Schedule F and Schedule G."

Page 200

 1             JUDGE BONOMY:  Yeah, but these are Counts 4, 5, and 6 which are

 2     said to fall under the overarching joint criminal enterprise, and

 3     therefore would appear to encompass the killings in Sarajevo.

 4             MR. TIEGER:  I think that's ...

 5             Sorry, Your Honour, if I could have just a moment.

 6                           [Prosecution counsel confer]

 7             MR. TIEGER:  Your Honour, I believe that those -- it's -- I think

 8     it's accurate to say that they include the overarching JCE, but they

 9     are -- they are a reflection of the -- they include all of the JCEs, and

10     because the JCEs are modes of liability, and the modes of liability

11     leading to the establishing responsibility for the crimes that are

12     alleged in those counts.  So it's -- they don't fall exclusively under

13     the overarching JCE, but they encompass all of the committing modes of

14     liability.

15             JUDGE BONOMY:  Well, that's just a lot of words to me,

16     Mr. Tieger.  This whole exercise is designed to identify what crimes were

17     committed in what circumstances, and the circumstances include the mode

18     by which liability rests with the accused.  In other words, the mode of

19     his involvement in the commission, ordering or otherwise, in relation to

20     these crimes.

21             Now, my understanding of this indictment is that the first eight

22     counts are said to fall under the first joint criminal enterprise.

23             MR. TIEGER:  No, Your Honour, that's --

24             JUDGE BONOMY:  And that's wrong, is it?

25             MR. TIEGER:  That's correct, Your Honour.  I mean, the counts,

Page 201

 1     Counts 4, 5, and 6 is extermination and murder, for example, embrace all

 2     of the modes of liability --

 3             JUDGE BONOMY:  Yes.

 4             MR. TIEGER:  -- giving rise to those charges, including the three

 5     JCEs.

 6                           [Prosecution counsel confer]

 7             MR. TIEGER:  I think the only two counts that are exclusive,

 8     Your Honour, would be Count 2, Srebrenica; Count 11, hostages; and

 9     maybe -- and 9 and 10 relating to Sarajevo.  So 9 and 10 is the terror

10     count exclusively; 2 is Srebrenica; and 11 is the taking of hostages.

11     The others are the underlying crimes which emerge from the various modes

12     of liability.

13             JUDGE BONOMY:  Well, you look at paragraph 9 again then, please.

14     And this is relating to the overarching joint criminal enterprise.  Now,

15     it's Count 1 that's included there; Count 2 is not; and persecution,

16     extermination, murder, deportation, and forcible transfer are included.

17     And then Count 2 falls in as a possible JCE 3, I think.  Am I

18     misunderstanding paragraph 10?

19             MR. TIEGER:  No, I think that's correct, Your Honour.

20             JUDGE BONOMY:  So it comes in on a different basis into the

21     overarching joint criminal enterprise.  But on the face of it, that joint

22     criminal enterprise appears to cover the murder and extermination counts

23     which include Sarajevo.

24             Now, what this comes to at the end of the day, Mr. Tieger, is, it

25     would appear, a lack of clarity in the indictment in relation to the

Page 202

 1     subject of the connection between the joint criminal enterprises,

 2     inter se, and the connection between these various joint criminal

 3     enterprises as modes of liability and the crimes to which they relate.

 4     And that is an issue on which the Chamber will issue a decision very

 5     shortly, and I just want to ensure that you've had an opportunity to make

 6     whatever submissions you wish before we do so.

 7             MR. TIEGER:  Well, I appreciate that, Your Honour.  If I may,

 8     I -- frankly, now that I have some understanding of the Court's concern,

 9     and I'll be frank and say I didn't grasp that that was the nature of the

10     Court's concern from the messages we received before, I would like an

11     opportunity to further clarify it.  And I'm grateful for the Court's

12     desire to ensure we do have an opportunity to make those submissions

13     before the Court makes a ruling.  I'd like to say that I don't think this

14     is that full opportunity, and I'd like that opportunity --

15             JUDGE BONOMY:  Well, today is your opportunity, I'm afraid, and

16     I'm happy to -- it looks as though there may be a break at some stage

17     today, and I'm happy to hear further from you later on once you've

18     digested this, but you -- you'll appreciate that if the Chamber remains

19     uncertain about elements here, then it's likely that that order would

20     require the indictment to be clarified.

21             MR. TIEGER:  Well, I hear the Court seeking some clarification

22     one way or the other, and I -- as I said, I do seek the opportunity to do

23     that before any formal ruling is made in the interest of hopefully

24     reducing the amount of work for the parties and the Chamber.

25             JUDGE BONOMY:  All right.  Thank you.

Page 203

 1             Now, Mr. Karadzic, we are looking at the motion which you filed

 2     alleging defects in the form of the indictment, and in particular the way

 3     in which the concept of joint criminal enterprise is addressed in the

 4     indictment referring to four related joint criminal enterprises.

 5     There -- as the result of considering the issue carefully, in light of

 6     the motion and the Prosecution response, it does appear to the

 7     Trial Chamber that there may be a lack of clarity in parts of this

 8     indictment.  Mr. Tieger has been asked to try to assist us.  He's done

 9     what he can for the moment, and I will give him an opportunity later on

10     this afternoon if he wishes to amplify that.  Is there anything that you

11     wish to say on this matter at this stage?

12             THE ACCUSED: [Interpretation] Yes, Your Lordship.  I'm very

13     satisfied with your understanding of this problem.  There are two aspects

14     to it.  It seems to me that at times the OTP is taking my case as the

15     last opportunity to introduce new international law norms, that is, for

16     example, by lowering the threshold for mens rea and some other things,

17     and the same applies to this issue of multiple joint criminal

18     enterprises.  This notion does not exist in any legal system.  We know

19     from American jurisprudence, who treat conspiracy or anti-mafia laws, one

20     of the aspects is so the introduction of precedents and the second aspect

21     is the OTP's attitude towards me.  Apparently they're not quite sure

22     about their indictment, and they're trying to inundate me with the

23     material and to make this case more complex than it already is, and that

24     if they miss the target once, they will try again and finally hit it if

25     possible.

Page 204

 1             What I said last time, that I was going to challenge everything,

 2     here we see the proof why I have to challenge all this.  The OTP

 3     maintains as if there were no 50.000 soldiers in Sarajevo and that there

 4     were 70.000 Serb soldiers --

 5             JUDGE BONOMY:  Mr. Karadzic, let me interrupt you.  I'm concerned

 6     about the allegations in the indictment, not what your view of the facts

 7     may be.  And I would like you to tell me if there's anything you want to

 8     say about the motion itself and the response that we've heard today from

 9     Mr. Tieger and also the written response of the OTP.

10             THE ACCUSED: [Interpretation] All I wanted to say was that the

11     opposite side is already in the area of meritum and merits.  The things

12     are not as they are depicted.  Your full understanding of this construct,

13     of this novel notion such as the multiple joint criminal enterprises, is

14     quite obvious to me, and that was the reason that prompted me to file

15     this motion.

16             JUDGE BONOMY:  It may be -- just so that you're not misled by

17     anything I've said, it may be that the Trial Chamber will accept the

18     notion of there being a number of joint criminal enterprises.  The issue

19     that I've been raising is the relationship of each joint criminal

20     enterprise to the other and to the crimes which are alleged in the

21     indictment.  That's not particularly a problem that you've raised in your

22     challenge, but it -- it flows -- our anxiety about this point flows from

23     the challenge that you've made.

24             Now, I think you've probably said all that there is to be said on

25     this, and we'll hear if Mr. Tieger has any further submission later this

Page 205

 1     afternoon, and you will have an opportunity if you want to say any more

 2     at that stage.

 3             I'd like to move to the next of these motions now, and that is a

 4     motion in relation to protective measures.

 5             Now, Ms. Uertz-Retzlaff, let me explain to you the problem that

 6     the Trial Chamber has with this.  Protective measures appear to us to be

 7     measures designed to protect witnesses and victims.  And when the -- a

 8     party seeks protective measures, the party is normally expected to

 9     justify them.  There has to be a reason for them.  And the obvious --

10     obviously the appropriate rule is Rule 75.  On the other hand, there are

11     circumstances in which states seek to protect material, and to that the

12     rule that applies is Rule 70.  And the criteria and the requirements are

13     quite different, and indeed there may be no reason to justify or explain

14     why a certain condition has been attached to material.  However, if the

15     party seeks to introduce that material into court as evidence, then the

16     Court will have a say on whether the condition can continue to apply and

17     the evidence be admitted, and the Court may well refuse to admit the

18     evidence if the condition is inconsistent with the requirements of a fair

19     trial.

20             Now, it seems to the Trial Chamber that these two entirely

21     separate concepts are confused in this motion, and the motion gives no

22     real indication that the measures which you ask us to note as already in

23     place were actually measures justified under Rule 75.  Now, if they were,

24     then this Chamber is bound to accept them.  The additional measures that

25     you seek appear on the face of it to have nothing to do with Rule 75.

Page 206

 1     They appear to be measures designed to protect the material itself at the

 2     instance of the state provider, and that's something that is not an

 3     appropriate exercise of the power of the Chamber under Rule 75.

 4             Now, am I and my colleagues misunderstanding something here, or

 5     do you accept that there is confusion in this motion between the

 6     application of these two rules?

 7             MS. UERTZ-RETZLAFF:  Your Honour, we actually see the key issue

 8     at -- legal issue here in this submission that the question is whether

 9     protective measures granted pursuant to Rule 70 fall within the province

10     of Rule 75(F), such as the continued mutatis mutandis.  And if they do,

11     the Prosecution's notifications for protective measures of some of the

12     witnesses - and I'm not going into the details because that would need to

13     go into private session, I just stay on the legal issue as such - we

14     think -- and we are actually supported by two decisions of this Tribunal,

15     namely, one in the Martic case and one in the Prlic case, that 75(F)

16     indeed does -- do apply also to all protective measures, no matter on

17     what basis they were actually provided in the first proceedings.

18             JUDGE BONOMY:  Now, are these decisions reasoned decisions in

19     which the issue arose as a contested issue?  Because it certainly has

20     been determined in Milutinovic that this approach is wrong, and that was

21     in a contested situation where the Trial Chamber had to address the

22     decision.

23             MS. UERTZ-RETZLAFF:  The decision I was actually referring to,

24     the Martic decision, is of the 13th of January, 2006, where they actually

25     said that the Rule 70 protective measures continue to apply, and they

Page 207

 1     referred to 75(F); and the other decision is in the Prlic case of the

 2     13th of April, 2006, with the same arguments basically.  That's why -- we

 3     are aware -- we are aware of the Milutinovic decisions, but we think that

 4     what we actually argue is correct, and we would stay with this.

 5             JUDGE BONOMY:  Do you refer to the Milutinovic decision?

 6             MS. UERTZ-RETZLAFF:  No --

 7             JUDGE BONOMY:  Yes, you do.

 8             MS. UERTZ-RETZLAFF:  Okay.

 9             JUDGE BONOMY:  But can you answer the question I posed:  Was

10     there opposition in Martic and Prlic to that course of action so that it

11     was reasoned by the Chamber?

12             MS. UERTZ-RETZLAFF:  I cannot answer that, Your Honour.

13             JUDGE BONOMY:  All right.

14             MS. UERTZ-RETZLAFF:  I would have to check first.

15                           [Pre-Trial Chamber and Legal Officer confer]

16             JUDGE BONOMY:  I see that Rule 75(F) says:

17             "Once protective measures have been ordered in respect of a

18     victim or witness in any proceedings ... such protective measures shall

19     continue."

20             MS. UERTZ-RETZLAFF:  Yes.

21             JUDGE BONOMY:  Now, Rule 70 is nothing to do with victims or

22     witnesses.

23             MS. UERTZ-RETZLAFF:  But we are talking actually about witnesses.

24     We are not talking about materials.  We are talking about protective

25     measures for very particular witnesses.

Page 208

 1             JUDGE BONOMY:  Yes --

 2             MS. UERTZ-RETZLAFF:  Therefore, the argument actually would be

 3     that it falls under 75(F).  And I would like to actually say why we think

 4     that's the case.  If the purpose of Rule 75(F) is to expedite proceedings

 5     by allowing easy transfer of protective measures litigated before onto

 6     subsequent proceedings, I can't really see why that should be -- should

 7     not apply to any protective measures.

 8             JUDGE BONOMY:  The wording of the rule is clear.  Now, you tell

 9     me that your application relates to victims and witnesses.  For that

10     submission to have any value, you would have to be seeking to protect the

11     victims and witnesses and not the material.  Are you telling me your

12     application is designed to protect victims and witnesses and not to

13     protect the material?

14             MS. UERTZ-RETZLAFF:  No, it's actually -- it's about the

15     materials and the information that certain witnesses who were provided

16     according to Rule 70 are providing then in court and -- no, that's ...

17             JUDGE BONOMY:  Okay.  Well, we shall consider the authorities to

18     which you are referring further in the light of this, we shall take

19     account of what you say about the purpose and the purpose of construction

20     of the Rules, and we shall make our decision.

21             Mr. Karadzic, do you have anything to say on this issue?  I

22     understand that there was a delay in transmitting this motion to you in

23     Serbian because of some confusion over the translation, but you may only

24     have received it in the last day or so.

25             THE ACCUSED: [Interpretation] The fact is that I'm no longer

Page 209

 1     relieving -- receiving not only a transcript of testimony in B/C/S but

 2     also some other rulings.  I -- most of the time I receive them in English

 3     which creates tremendous problems for me because I have to use the

 4     dictionary, and it's a time-consuming exercise.  I appreciate your

 5     understanding again with regard to both the materials and the witnesses.

 6     Namely, if according to Rule 70 in any case consent was obtained from the

 7     country from which these documents originate, there is no need for me to

 8     apply for additional permit.  That would be a discrimination against this

 9     case.  If it is being granted in one particular instance, then it should

10     be applied to this case as well.

11             Before the OTP discloses either the material or the witness for

12     whom certain measures are being requested, they should provide this

13     consent; and after that, they should apply for the measures to be

14     introduced.  I think this is really important because this case is

15     already gaining such a shape of high complexity, and it is really

16     questionable how this trial is going to go on if it is going to go on at

17     all.

18             JUDGE BONOMY:  Well, I appreciate your pragmaticism, and I can

19     see sense in what both you and Ms. Uertz-Retzlaff say about the

20     application of measures from one case to another.  The problem is that

21     when you do that on the basis of an inaccurate assessment of the law,

22     then you run into difficulties when there is a genuine dispute.  It's all

23     very well to do it when everyone's in agreement.  But to set the proper

24     course in a trial that may last for some time, it's important that we do

25     so on a correct legal basis, and that's what the Trial Chamber intends to

Page 210

 1     do.  That doesn't mean to say that the same measures may not end up being

 2     applied.  It also does not mean to say that the Chamber seeks to

 3     intervene in any way in the disclosure process.  If conditions are

 4     imposed by a state on material, then these conditions have to be observed

 5     in the disclosure process without the Trial Chamber becoming involved.

 6     The Trial Chamber really only needs to be involved when that material is

 7     destined to be evidence and unusual conditions are sought to be applied

 8     to the way in which it's presented as evidence.

 9             However, as I said, we will look again at the various authorities

10     referred to and the arguments presented, and we will issue a decision.

11             The next one I want to deal with is ...

12                           [Pre-Trial Chamber and Legal Officer confer]

13             JUDGE BONOMY:  I may have wrongly assumed, Mr. Karadzic, that you

14     had said all you want to say on the question of protective measures.  It

15     is your right to make a written submission if you wish, but if you've

16     said enough on the matter, we can go ahead and deal with our decision.

17             THE ACCUSED: [Interpretation] I would just like to add that so

18     far it has not happened that the Defence disclose something that was

19     protected.  If in any case the measures are consented to by a government

20     with the limitations of confidentiality, we're always ready to respect

21     that, to respect the measures required by any government concerned and to

22     respect confidentiality.  But we don't believe we should be discriminated

23     compared to other cases.  If things were allowed in other cases, other

24     trials, then it should be allowed here too.  And if it need be, I will

25     submit a written motion.

Page 211

 1             JUDGE BONOMY:  No, I think that is unnecessary.  Your point has

 2     been noted, and we will proceed on that basis that you have responded to

 3     this motion, and we will take account of your submissions in making our

 4     decision.

 5             I turn now to the motion to dismiss the indictment for abuse of

 6     process, and this relates to the searches which you raised at the last

 7     Status Conference.  Now, when you got the Prosecution's response to your

 8     motion, you applied for leave to reply.  You've done that a great deal in

 9     connection with various motions before the Trial Chamber.  It's not

10     necessary to reply to every response that you get from the Prosecution,

11     and that's particularly so when you're simply repeating, as you have done

12     from time to time, simply repeating and emphasizing the arguments you've

13     already made.  It's the exception rather than the rule for a reply to the

14     presented, and it should be presented only to deal with something that

15     has to be dealt with, and you haven't really foreseen it and dealt with

16     it in the original motion.  So you don't need to be afraid that because

17     you haven't said something twice the Trial Chamber might think you don't

18     really mean it.  We'll always take account of every submission that you

19     make.

20             Now, in this case, is this Ms. Uertz-Retzlaff -- Mr. Tieger, I

21     just want to be clear that what can be made available before we make our

22     decision has been made available, and there is reference in your response

23     to at the time of the seizure the MUP providing the resident of the

24     premises - that's on the second search - with a list of items seized and

25     then providing them with a copy of the search warrant and then providing

Page 212

 1     your field office in Sarajevo with copies of the documents seized during

 2     the search.  And you say once the materials are received in The Hague,

 3     you will discharge your disclosure obligations.  Now, are you in a

 4     position to do that?

 5             MR. TIEGER:  Your Honour, I don't believe we've received the --

 6     all of the materials yet, and I need to clarify in addition if there's

 7     any misunderstanding about that, that the discharge of our disclosure

 8     obligations will be pursuant to the applicable jurisprudence and not

 9     dictated by the accused's view of what he should or should not receive.

10             JUDGE BONOMY:  That's a separate issue of course from the actual

11     searches themselves, two separate matters.

12             MR. TIEGER:  My understanding is that we don't yet have the

13     materials in-house, although I believe their receipt is imminent.

14             JUDGE BONOMY:  It's rather surprising that they should arrive in

15     your office in Sarajevo on the 21st of April and be regarded as not

16     urgent.  We're now another - what?  - more than two weeks down the line,

17     and you still don't have them.  I will always be concerned about what

18     appears to be a lack of urgency in this case.  But if that's the best you

19     can tell me in the circumstances, then we shall proceed on that basis.

20             Now, Mr. Karadzic, is there anything you wish to say further on

21     this matter?

22             THE ACCUSED: [Interpretation] Yes, Your Lordship.  This is the

23     first time that individuals whose flat has been searched and raided were

24     able to see what was taken away.  In the previous raid on the 2nd of

25     December and the NATO raids, allegedly pursuant to instructions from this

Page 213

 1     Tribunal, or rather, the OTP, my family and friends were taken to a

 2     different room while the search was going on, and they didn't know what

 3     goods were taken.  So when on the 2nd of December they arrived at

 4     3.00 a.m. to talk to my wife and ask her what she knew about Mladic, they

 5     took away an unidentified number of items, and there are two aspects in

 6     that regard.  First of all, it impedes my defence because documents are

 7     being sought for which could be important to my defence which I will

 8     disclose if I find them; and secondly, it can discourage potential

 9     witnesses.  They are being intimidated, and that is impermissible, and in

10     my submission, that in any other country would be grounds for rejecting

11     and dismissing the whole trial.

12             JUDGE BONOMY:  Thank you.  It's only right that I should observe,

13     Mr. Karadzic, that there's no evidence before the Tribunal that

14     Prosecution in this case were in any way linked to the search on the

15     2nd of December, and that therefore the circumstances are rather

16     different from those in a domestic jurisdiction, where if the police are

17     involved, you can relate it to the Prosecution process in some way.  But

18     in the circumstances like this, in an International Tribunal where

19     domestic authorities carry out searches and the International Tribunal

20     authorities have no connection with these, then the same link cannot so

21     readily be made.  However, we will again take account of the various

22     submissions that have been made before issuing our decision on this.

23             THE ACCUSED: [Interpretation] May I be allowed to add something?

24     In all searchs so far the NATO porte-parole and international forces

25     referred to this Tribunal, and since I've been here, that is to say the

Page 214

 1     end of July last year, there are no further reasons for going to my

 2     family in search of documents.  The documents that I come by and that

 3     some of my friends have, I will disclose in due course on time.  And I

 4     think that you can check that torture -- and during the searchs that NATO

 5     was behind all the searches.

 6             JUDGE BONOMY:  Mr. Karadzic, if you are able to draw our

 7     attention to particular items which you say have been removed and that --

 8     which you would otherwise have used, then you would be in a quite

 9     different situation from the one you've presented to us so far.  So we

10     will look at these circumstances as and when details are presented to the

11     Trial Chamber.

12             Now, I want to turn to the motion that you have made to reject

13     the interim pre-trial brief, and this may be rather timely in ensuring

14     that when the final pre-trial brief is presented, that it complies with

15     the Rules.

16             Now, at first glance, Ms. Uertz-Retzlaff, there is substance in

17     the claim that you have used annexes to supplement the argument presented

18     in the pre-trial brief.  I note that you didn't use the full word limit

19     extension which was granted, but it does look as though the annexes are

20     simply supplementary, additional, argumentative material that you would

21     normally expect to see in the pre-trial brief itself.  Is that being

22     unfair to you?

23             MS. UERTZ-RETZLAFF:  Your Honour, we actually saw it differently.

24     As you can see, the annex -- Annex B looks sort of different from the

25     Schedules A to G that we had included as well, but it's basically

Page 215

 1     something very similar.  It's a narrative of additional references to

 2     events, people, and institutions that you also find in these others.  So

 3     it's -- Annex B is not really different from the others.  What we wanted

 4     to do is we wanted to give as much information possible on -- and make

 5     references to people, to certain events, and institutions involved.  So

 6     we didn't consider that to be argumentative, just more references.  But

 7     of course if you consider this to be not within the margins of the

 8     direct -- Practice Direction, we would have to take consequences for the

 9     final pre-trial brief.

10             JUDGE BONOMY:  Well, let me give you an example in relation to

11     Bratunac.

12             "On the 3rd of May, 1992, the Serb TO surrounded the Muslim

13     village of Hranca and torched 43 houses.  Over the following week they

14     attacked and arrested the remaining residents of the village.  A total of

15     12 Muslim villagers, four of whom had been captured, including one

16     6-year-old girl, were killed by Serb forces during the attack."

17             Following that you then say:

18             "More details on this incident are found at Schedule A,

19     paragraph 3.1."

20             In addition there are facts related to Schedule A, 3.2; and B,

21     4.1 in this municipality.  Now, are you telling me that these are not

22     simple factual statements that you expect to find in a pre-trial brief?

23     Is that your serious submission?

24             MS. UERTZ-RETZLAFF:  We actually viewed it this way --

25             JUDGE BONOMY:  You say -- what's it's a reference to?  You say

Page 216

 1     it's a reference.  I mean, the Rule --

 2             MS. UERTZ-RETZLAFF:  Reference to event, people, and

 3     institutions.  For instance, we also added in the schedules A, B, and C

 4     we also added information in relation to perpetrators and institutions

 5     and categories that you didn't find in the original one.  So I can't

 6     really see much of a difference between Annex B and the other schedules

 7     where we also added this kind of information.

 8             JUDGE BONOMY:  Yeah, well that makes it worse.

 9             MS. UERTZ-RETZLAFF:  Yeah, but that's how we saw it, that it

10     would be permissible.

11             JUDGE BONOMY:  But read the Practice Direction.

12             "An appendix will not contain legal or factual arguments, but

13     rather references, source materials, items from the record, exhibits, and

14     other relevant non-argumentative material."

15             Now, are you seriously suggesting that the passage I've just read

16     falls within that?

17             MS. UERTZ-RETZLAFF:  Your Honour, we considered and we --

18     actually, when we produced Annex B, we actually were very careful not to

19     make any argument related to the JCE or to responsibilities.  That's how

20     we saw it.  But if you see it otherwise, I mean we can definitely with --

21     this can then be stricken, and we would then have to provide it with the

22     final pre-trial brief and request a different word limit.  If that's your

23     view, we can definitely do that.

24                           [Pre-Trial Chamber and Legal Officer confer]

25             JUDGE BONOMY:  Now, Mr. Karadzic, you raised this issue, and you

Page 217

 1     raised it purely and simply as a technical issue.  You did not make a

 2     serious point about it.  You asked that the Rules be observed, and you I

 3     think say -- actually say in the motion that you don't mind getting the

 4     information, but you think it should all be done properly within the

 5     Rules.  Now, the Trial Chamber agrees with that view.  The question is

 6     how to interpret the Rules and the Practice Direction and whether this is

 7     the right way to do it or whether it should be done differently.  And we

 8     need to make that decision before the final pre-trial brief is due.

 9     We're not going to -- the Trial Chamber is not going to reject this one.

10     It purpose is served now, anyway, in alerting us to this problem and

11     alerting the Trial Chamber to other matters, but we are interested in

12     hearing if you've anything else to say on the subject of the pre-trial

13     brief that will be due on the 18th of May.

14             THE ACCUSED: [Interpretation] No, I don't have anything to add.

15     I would just like to say that I agree, once again, to your view of the

16     matter; and I'd also like to say that there's no need for things to be

17     put in and slipped into annexes that could be disclosed to us otherwise

18     and for them to think that we won't notice that.  But we are opposed to

19     having -- we're not opposed to having the length of the briefs increased.

20     So I do allow for that.  But of course that everything should be done

21     according to the book, according to the Rules.

22             JUDGE BONOMY:  Thank you.  I'm just waiting for a copy of the

23     brief to be brought in until I look at something that I need to clarify.

24                           [Pre-Trial Chamber and Legal Officer confer]

25             JUDGE BONOMY:  I'm sorry, I should have had this before me

Page 218

 1     earlier.

 2             See, it boils down to you really saying that the crime base for

 3     the case can be put in an annex basically.  Is that right?

 4             MS. UERTZ-RETZLAFF:  Yes, Your Honour, it's true, and there are

 5     actually examples -- rather I would say for the final trial briefs where

 6     this is done because it's just such a huge case.

 7             JUDGE BONOMY:  Now, should we decide that that's not the correct

 8     way to do it and that the crime base should be part of the pre-trial

 9     brief and therefore count towards the word limit, what would your motion

10     be?

11             MS. UERTZ-RETZLAFF:  We would then ask for an extension of the

12     word limit.

13             JUDGE BONOMY:  To what?

14             MS. UERTZ-RETZLAFF:  To include actually the annexes counting.

15             JUDGE BONOMY:  Yeah, but do you know how similar your final

16     version will be to this one?

17             MS. UERTZ-RETZLAFF:  Very similar.

18             JUDGE BONOMY:  In size?

19             MS. UERTZ-RETZLAFF:  I think it will be slightly bigger because

20     we want to expand in particular on the footnote references.  We will add

21     more reference -- evidence references in the body, and so therefore it

22     necessarily will be bigger but not -- not hugely.

23             JUDGE BONOMY:  All right.  Thank you very much.

24             I want to deal -- before we have the break, there's two things

25     I'd like to deal with.  The first is the motion to preclude reference to

Page 219

 1     confidential decisions.  Now, I think we're all in agreement on this one,

 2     that a method has to be found of ensuring that if reference is made to

 3     something confidential, that information is available to the opponent and

 4     available to the Trial Chamber.  Having said in your response that you

 5     acknowledge that, and I suppose the same response is made to the other

 6     cases -- in the other cases where the same point has been raised, I

 7     think -- it's not just in this case, is it?

 8             MS. UERTZ-RETZLAFF:  To my knowledge, it's only in this case, but

 9     we could check that.  I'm not aware ...

10             JUDGE BONOMY:  I thought the same motion may have been made in

11     other cases.

12             MS. UERTZ-RETZLAFF:  Oh, I misunderstood now.  I thought you were

13     referring to our own motions.

14             JUDGE BONOMY:  No.

15             MS. UERTZ-RETZLAFF:  No, in the Prlic case.  Yes.  In the Prlic

16     case the decision was actually made that this is not proper and that the

17     Prosecution should endeavour to produce public versions or redacted

18     versions.

19             JUDGE BONOMY:  But is that recent?

20             MS. UERTZ-RETZLAFF:  Relatively, yes, relatively, yes.  And it's

21     actually referred to in our response --

22             JUDGE BONOMY:  But has Mr. Karadzic not made the same motion in

23     other cases where he is seeking material from -- confidential material?

24             MS. UERTZ-RETZLAFF:  No.

25             JUDGE BONOMY:  No, okay.  Well, in relation to this point, the

Page 220

 1     problem that we have with your response is:  How do you do it?

 2             MS. UERTZ-RETZLAFF:  We will actually have to approach the

 3     Trial Chamber that dealt with this confidential decision and request a

 4     public version, that's one option; or to ask them to be -- to use this

 5     decision with redactions.

 6             JUDGE BONOMY:  Okay, so you acknowledge that -- you acknowledge

 7     that you would not -- it would not be proper to refer to confidential

 8     decisions without making them available to the Bench and to Mr. Karadzic?

 9             MS. UERTZ-RETZLAFF:  Right, Your Honour.

10             JUDGE BONOMY:  Okay.  Now, is there anything to be added to that,

11     Mr. Karadzic?  You seem to have achieved the objective.

12             THE ACCUSED: [Interpretation] Thank you.  That's how I understood

13     it.  That's why we proposed it, because we can't guess at what they're

14     aiming at if it's not disclosed.  That's why we asked for disclosure.

15     All of the confidential material from current trials and from previous

16     trials.  So there's no need to hide anything from us, all the more so as

17     we are willing to respect the rules of confidentiality.

18             JUDGE BONOMY:  Thank you.

19             And the other matter I'd like to deal with quickly before we

20     adjourn is the motions that have been made by both Prosecution and the

21     accused for certification to appeal the decision on six preliminary

22     motions challenging jurisdiction.

23             Mr. Karadzic, the Prosecution have applied for certification on

24     one point, and that is the definition of the mens rea or mental-element

25     standard for the third form of joint criminal enterprise, where the

Page 221

 1     Chamber found that the correct test was one of probability rather than

 2     possibility.  Do you have anything to say to oppose that motion?

 3             THE ACCUSED: [Interpretation] Your Lordship, I've noticed that

 4     the Trial Chamber on several occasions helped the OTP, correcting their

 5     mistakes and omissions.  Now the Trial Chamber has made a good decision,

 6     taking into account our motion and request, and now the Prosecution are

 7     asking that that be deleted.  That is something that should absolutely

 8     not be done, all the more so as the OTP has kept -- well, imagine this:

 9     If there were the possibility of somebody being injured at a football

10     match, that you shouldn't organise football matches at all; or if there's

11     a large construction -- a large building under construction, a worker is

12     injured, that that building shouldn't be constructed.  So this decision

13     of the Trial Chamber is a good one, it's a good ruling, and they

14     shouldn't be allowed to challenge it because I think that the OTP really

15     did make big mistakes.  And had it not been the Trial Chamber's

16     indulgence in helping them out, matters would have been even worse.

17             JUDGE BONOMY:  All right.

18             Now, Mr. Tieger, the -- or Ms. Uertz-Retzlaff, it's not clear,

19     the accused has applied for leave -- for certification to appeal the same

20     decision in relation to four of the subjects dealt within it in which the

21     Trial Chamber went on to consider whether what he had advanced was a

22     challenge -- actually a challenge to the form of the indictment.  There

23     seems to be a bit of uncertainty in the motion because I think in

24     relation to two of them the Trial Chamber did not in fact find that there

25     was an issue in relation to the form of the indictment.  Do you have

Page 222

 1     any -- do you oppose his motion for certification?

 2             MS. UERTZ-RETZLAFF:  Your Honour, we would actually prefer, as we

 3     received it only this morning, we would actually prefer to respond to the

 4     issues in writing.  We can only already forecast that we would oppose at

 5     least two of these, that's the -- the first one is the preliminary motion

 6     to dismiss Count 11 because we think that's actually a factual issue that

 7     we are talking about here that needs to be determined at trial, so

 8     therefore we would oppose certification.  The same in relation to

 9     number 4, preliminary motion on lack of jurisdiction's superior

10     responsibility, we also think that's just a factual matter to be

11     determined at trial.  In relation to the other two, lack of jurisdiction

12     omission liability and also in relation to superior responsibility, we

13     actually think that the issues raised have been previously decided on

14     appeal already.  So that -- we doubt that there is a reason that we can

15     say that immediate resolution is necessary to advance the proceeding.  So

16     we tend to oppose all four, but that was only a preliminary screening of

17     the -- of the request and the decision.  So we would rather prefer to

18     produce something in writing if that would assist the Trial Chamber.

19             JUDGE BONOMY:  Well, I doubt if it will particularly.  You may

20     have said what is to be said on these matters, but I would be grateful if

21     during the break you may give some further thought to any other

22     submission you want to make on this because we are anxious that in view

23     of the time that every appeal process takes in the interlocutory phase of

24     the case, that these appeals are mounted if they are to be mounted very

25     quickly.  And there's bound to be an appeal on this decision anyway

Page 223

 1     because the accused can appeal of right and -- as of right and has

 2     indicated his intention to do so.  So we might as well as quickly as

 3     possible resolve the certification issues, too, so that they're all dealt

 4     with at the same time.

 5             MS. UERTZ-RETZLAFF:  Your Honour --

 6             JUDGE BONOMY:  We're not persuaded by the accused's -- I can tell

 7     you, none of the Trial Chamber is persuaded by the accused's submission

 8     that we should delay a decision in certification until the appeals as of

 9     right are determined.  That would simply result in an ultimate delay in

10     the case.

11             MS. UERTZ-RETZLAFF:  Your Honour, definitely this will be what I

12     just conveyed in relation to the four certifications applications.  This

13     will be our argument.  Of course I just made it very briefly, and it

14     would in writing of course be much more thorough and probably also with

15     references to the decisions and jurisprudence here.  But if -- if the

16     Trial Chamber would not want any more argument on this and its sufficient

17     what we said so far, then there's no need for me to elaborate on it

18     further.

19             JUDGE BONOMY:  All right.  Thank you very much.

20             Mr. Karadzic, is there anything further you want to say on these

21     motions for leave to appeal?

22             THE ACCUSED: [Interpretation] I would like to say something about

23     my submission for certification.  You, yourself, could have noticed how

24     urgent this is.  There is a difference in dead-lines, seven days with

25     regard to this Chamber and 15 days with regards to Appellate Chamber, and

Page 224

 1     in that respect this should be granted as well as an extension of time so

 2     that we can coordinate our activities.  I have to say that 35 pages of

 3     this ruling submitted only in English has taken up a lot of time for me

 4     to understand it.

 5             JUDGE BONOMY:  Thank you.

 6             Well, we'll adjourn now for our break and resume at ten minutes

 7     past 4.00.

 8                           --- Recess taken at 3.49 p.m.

 9                           --- On resuming at 4.15 p.m.

10             JUDGE BONOMY:  Well, let me see now if we can dispose of some of

11     the matters we've discussed so far.  I've had the opportunity of meeting

12     with the other Judges in the Chamber in the break and can now try to

13     finalise some of these.  The motion to reject the interim pre-trial

14     brief, let's see if we can deal with this finally.

15             Ms. Uertz-Retzlaff, can you help me at all on the likely

16     variation to the word count that you seek on the basis that we do not

17     consider that the annexes are the appropriate place for crime base

18     material?

19             MS. UERTZ-RETZLAFF:  Annex B or all annexes?

20             JUDGE BONOMY:  Anything that you consider to be similar to

21     Annex B in its content.

22                           [Prosecution counsel confer]

23             MS. UERTZ-RETZLAFF:  Your Honour, I just heard from Mr. Reid that

24     the Annex B is 18.000 words.

25             JUDGE BONOMY:  On its own?

Page 225

 1             MS. UERTZ-RETZLAFF:  That's -- that would be Annex B.  And as I

 2     said, Annex A, B, and C also has a -- additional information in there

 3     that goes past the -- the references to evidence because it states in a

 4     column, for instance, for the -- for the detention facilities it states

 5     who ran it, the authority who ran it.  If you would consider that to be

 6     of that same character, that it wouldn't fit into the directives, then we

 7     would also have to have this A, B, and C -- Schedules A, B, and C added

 8     as well because they all have this information -- additional information,

 9     while the others don't.

10             JUDGE BONOMY:  And does Mr. Reid know the total for all of these?

11             MS. UERTZ-RETZLAFF:  He is just checking.

12                           [Prosecution counsel confer]

13             MS. UERTZ-RETZLAFF:  For the Schedules A, B, and C it's

14     7.400 words, and I would think for the additional -- for the additional

15     footnotes that we would have to add to the body of the pre-trial brief, I

16     would think another 5.000 words perhaps --

17             JUDGE BONOMY:  I will thought you said 18.000 for Schedule B --

18             MS. UERTZ-RETZLAFF:  Yes, 18.000 for Schedule B and for the

19     Schedules A, B, and C -- annex, sorry, I misspoke.  Annex B, that's

20     18.000.  But for the Schedules A, B, and C, which are a different

21     annex -- Annex A, actually, that's another 7.400 words.  And we would

22     actually also need some more for the body of the pre-trial brief, the

23     final version, and my rough estimate would be something -- maximum 5.000

24     words.

25             JUDGE BONOMY:  Well, I shall authorise an increase in the word

Page 226

 1     limit to 60.000 words for the purpose of the pre-trial brief.  It's clear

 2     that the brief is designed to be helpful.  We have already found it in

 3     many parts to be helpful.  There's no point in wasting time in debating

 4     the exact figure in the light of the fact that we know the rough

 5     formation of this already and know that it's going to consume over

 6     50.000, let's hope 60.000 is sufficient to cover it.  I'm sure if you

 7     found that there was some modest further increase required, you would

 8     submit that along with the brief itself.  If there's -- a real problem

 9     emerges, then we would expect earlier notice of the need for us to review

10     the position.

11             MS. UERTZ-RETZLAFF:  Thank you, Your Honour.

12             JUDGE BONOMY:  Now, Mr. Karadzic, that I think sorts out the

13     question of how to abide by the Rules and the Practice Direction to which

14     you drew attention.  Can I invite you now to consider whether the best

15     course of action is for you to withdraw the motion that you previously

16     made to reject the interim pre-trial brief since your objective has been

17     achieved?

18             THE ACCUSED: [Interpretation] I have not opposed to this course

19     of action.  I can do it as well, and I can hopefully count on reciprocal

20     generosity whenever I would require an excessive number of words or more

21     words than allowed, so --

22             JUDGE BONOMY:  Thank you very much.  I shall permit you to

23     withdraw the motion.

24             I turn now to the motion to preclude reference to confidential

25     decisions.  The Trial Chamber has noted that the objective of that has

Page 227

 1     also been achieved, and therefore we deny that motion as unnecessary, not

 2     on its merits but as in the circumstances now unnecessary.

 3             The other thing that we discussed was the motion for

 4     certification to appeal.  We note that Mr. Karadzic has indicated his

 5     intention to exercise his right to appeal in relation to the question of

 6     whether these motions were truly challenges to jurisdiction.  So far as

 7     the issues for which certification is sought, dealing first of all with

 8     his motion, we grant certification in relation to the motion to dismiss

 9     Count 11 for lack of jurisdiction since we consider both legs of the test

10     for certification are met.  We refuse certification in relation to the

11     other three.  The second leg of the test is not met in relation to the

12     second one, that's omission liability which is a very fact-intensive

13     issue in any event, and there is already substantial jurisprudence on it.

14     So far as the other two are concerned, special intent crimes and superior

15     responsibility, the Chamber did not address these as challenges to the

16     form of the indictment.  There is no issue that we can identify on which

17     we could grant certification.  We do not consider that either leg of the

18     test has been met in relation to these, and we accordingly deny

19     certification.

20             So far as the issue raised by the Prosecution is concerned, that

21     is the mental element test for foreseeability in relation to the third

22     form of joint criminal enterprise, we consider that both legs of the test

23     for that are met, and we grant certification to appeal that decision.

24     There has yet to be determined the date on which the proposed amended

25     indictment should be filed.  We will state a date in the decision we

Page 228

 1     issue dealing with the other two remaining challenges to the form of the

 2     indictment, so you need take no action on the amended indictment until

 3     you get that decision.

 4             Now, Mr. Karadzic, the next motion to which I want to turn is

 5     your motion for equality of arms in contact with the news media.  I just

 6     want to be sure that there is nothing further you have to say on this

 7     matter before it is finally dealt with.

 8             THE ACCUSED: [Interpretation] Allow me just briefly to say that I

 9     am disappointed with your ruling.  If we look at the Blaskic case, which

10     is much older than the Kvocka case, the case law of this Court has been

11     quite different and the OTP is relying on it; however, the situation is

12     as it is.  There's nothing to be done about it.  So I will leave it up to

13     the Appeals Chamber to decide whether this appeals can be filed and if it

14     refers to jurisdiction.  As far as the relations with media is concerned,

15     I am appearing here as my own Defence counsel, not as an accused.

16     Therefore, the same means and the same limitations should be equally

17     applied to both the Defence and the accused.  I have to tell you that the

18     degree of demonisation of someone is so great that any acquittal is

19     impossible.  If I work on a daily basis, it is impossible for me to

20     refute everything that the OTP has done in terms of demonising me and the

21     Serbian people.  In order to do that, I would have to be allowed to speak

22     to the media almost on a daily basis in order to redress and rectify the

23     damage that we have incurred.  You are taking due care of the fairness of

24     the trial, and therefore you should take an appropriate position

25     regarding this matter.

Page 229

 1             JUDGE BONOMY:  Well, Mr. Karadzic, the Chamber has carefully

 2     considered this, and we are entirely satisfied it does not raise an issue

 3     of equality of arms in the pre-trial or, indeed, in the trial and raises

 4     no question relating to the fairness of the trial, whatever else it may

 5     raise.  Indeed, so far as the trial and pre-trial processes are

 6     concerned, your motion borders on the frivolous.  The Chamber therefore

 7     denies the motion.  We also suggest to you that your time would be far

 8     better spent concentrating on the issues which are genuine issues in the

 9     case.  For what it's worth, I read about you regularly in press reports

10     more than once a day; that may be no consolation, but it's a fact.

11             THE ACCUSED: [Interpretation] If I may add, that is -- I'm not

12     concerned about what conclusion you're going to arrive at; however, in

13     view of the fact that we are expecting to hear 490 witnesses in this

14     courtroom and someone really has to strike a balance regarding the

15     influence on these 490 witnesses.  I'm not so concerned about the expert

16     witnesses, but these 490 witnesses will come here coached and full of

17     prejudices.  And this is what -- this is going to be the doing of the

18     OTP.

19             JUDGE BONOMY:  Well, you can rest assured that the Judges here

20     are well able to ensure in the course of a trial that nothing unfair

21     arises.  Your motion does not raise anything that has an impact on the

22     fairness of the process at the moment or indeed the trial process in due

23     course.

24             That takes me now to the motion for further extension of time and

25     ancillary orders in relation to the motion you want to make about

Page 230

 1     immunity from prosecution.  Now, this is a developing situation as I

 2     understand it, and you have been provided with material from one state in

 3     the last few days.  There are ongoing discussion about that material, but

 4     it may be that that's as much as you are going to have immediately to

 5     hand from that source for the purpose of this motion at present.  Maybe,

 6     that's all I can say.  You also seek information from another state, and

 7     you have complained about their failure to respond.  That has concerned

 8     us, and we have done our best to clarify the position, and you'll

 9     appreciate that I'm referring in this connection to the state of Sweden.

10     And I'm now informed that the earliest at which a response to your

11     request may be anticipated is the beginning of next week.

12             There will be a time fairly soon where this motion has to be

13     tendered in its final form so that we can start the adjudication process.

14     That does not stop you making changes to that motion if and when you

15     obtain further information if that happens.  But we're getting to the

16     stage where the dead-line is going to have to be met.  And I'm inclined

17     at the moment to indicate to you that this motion should be submitted in

18     14 days' time.  Now, in light of that view, is there anything further you

19     would like to say?

20             THE ACCUSED: [Interpretation] Your Lordship, I was delighted to

21     hear from the US government that they would do their best to arrive at

22     the truth, and we indeed received some documents, and we are currently

23     seeking consent from their government approval to use them.  I also hope

24     that the Swedish government will facilitate an interview with their

25     minister.  We're also going to ask from other governments, Germany and

Page 231

 1     others, very sensitive and numerous documents.  If they are delaying

 2     things on such a rather benign matter as this one, I wonder what is going

 3     to happen if some more serious issues arise.  I would like to say that on

 4     a daily basis with tremendous delays, though, we are obtaining documents

 5     that are going to be needed.  Only I didn't understand your dead-line of

 6     14 days.  What specifically did you have in mind compared to what was

 7     said before?

 8             JUDGE BONOMY:  Well, you've asked for an extension of time to

 9     submit your motion.  My understanding is that you want to withdraw the

10     motion you originally made way back the very first day you were here and

11     submit a more detailed motion in light of the up-to-date position.  We've

12     got to set a dead-line for that because then the Prosecution have to have

13     time to respond.  We've got to have time to consider it.  It may be a

14     serious enough issue to have a hearing for all we know, and that's

15     something that you've suggested already.  So all of that will take time,

16     and time is marching on.  So we need to get the thing going, and it seems

17     to me that 14 days is about as much as you can now be given in addition

18     to what you've had so far to start the process, on the basis that if more

19     information comes to light you will be permitted within reason to tender

20     that information and to alter your position in the light of it, make the

21     case more precise or whatever.

22             But what I'm suggesting is that it might be reasonable now to

23     give you another 14 days on the basis that you use what you do have to

24     submit the motion so the Prosecution can see the general tone of this

25     motion and begin their own preparations to answer it.

Page 232

 1             THE ACCUSED: [Interpretation] Thank you for these 14 days that

 2     will start running from today or tomorrow, I suppose.  But I would also

 3     kindly ask the Trial Chamber, provided these governments fail to provide

 4     these materials, that the Trial Chamber obligates them to do so.

 5             JUDGE BONOMY:  Yeah, well at the moment I don't think it's

 6     appropriate to make an order to that effect.  What I shall do is make an

 7     order that your motion in relation to immunity from prosecution must be

 8     submitted no later than the 25th of May.  Now, that gives you more than

 9     two weeks, and it takes you over a weekend as well.  So it's the maximum

10     of time I think it's reasonable to give you.  The Prosecution will have

11     the normal 14 days to answer that.  There's -- that's one that the time

12     will not be cut down on because I think time could be valuable for both

13     of you.  The -- there was another dead-line I had in mind, and it's gone

14     from my mind.  Oh, yes.  The motion that you have submitted for extension

15     includes a request for orders for additional information.

16             Now, I'm not suggesting that this is a very precise motion at the

17     moment, but it does identify the -- two of the sources from which you

18     seek information.  And you rightly make the point that it may be

19     appropriate to consider whether you need an order to get information.  So

20     this will be -- the consideration of this motion will be continued, and

21     it will remain on the agenda of the Status Conference.  And the next

22     Status Conference will be probably on the 3rd of June.  So on the

23     afternoon of the 3rd of June, this should be on the agenda.  And

24     hopefully the information you have required will have been received.  If

25     in the interim there is other information that you consider is not being

Page 233

 1     provided but should be provided, then obviously you should notify the

 2     Trial Chamber in advance of the 3rd of June, long enough in advance for

 3     us to be able to decide what measures are appropriate.

 4             MS. UERTZ-RETZLAFF:  Your Honour.

 5             JUDGE BONOMY:  Yes, Ms. --

 6             MS. UERTZ-RETZLAFF:  Perhaps I can be --

 7             JUDGE BONOMY:  Sorry, I should have asked you for any comment.

 8             MS. UERTZ-RETZLAFF:  Yes.  Actually what we were -- we were

 9     actually in the process of opposing the motion of extension of time --

10             JUDGE BONOMY:  Yes.

11             MS. UERTZ-RETZLAFF:  -- for the following reason, and I also

12     would suggest that everybody considers it.  It would actually be at this

13     point in time, we are spending a lot of time and resources, in particular

14     also the accused, resources on the issue pursuing factual issues in

15     relation to the Holbrooke Agreement, and we actually think it should be

16     time to determine the legal issues first.  The accused could, for

17     instance, file a preliminary motion setting out his legal arguments in

18     accordance with the dead-line issued by the Trial Chamber based on an

19     assumed set of facts.  That's actually a position that was taken in a

20     case here already at the Tribunal, and that is the Dragan Nikolic case.

21     The accused in that case challenged the Tribunal's jurisdiction based on

22     an alleged illegal arrest.  The Trial Chamber in that case first

23     determined the legal issues based on a set of assumed facts, and having

24     determined this legal issue then -- then it would have turned to the

25     factual issues, if they at all would matter.  Let's say if we would -- if

Page 234

 1     the accused would file a motion setting out the alleged facts and we

 2     would -- it would be assumed as being the basis, and then the legal issue

 3     could be decided.

 4             I do actually have this decision here in the Nikolic case --

 5             JUDGE BONOMY:  You're pushing at an open door,

 6     Ms. Uertz-Retzlaff.  I agree entirely with your submission, and I think

 7     it's inevitable that the matter will have to be dealt with that way if

 8     the accused continues to have difficulty in recovering material which he

 9     thinks exist but about which there may be some doubt.  So I'm happy --

10     but -- to make that suggestion, but again it's going to take time to put

11     this together, and I think that time may also result in the provision of

12     additional factual information.  So I'm not inclined to depart from the

13     time-scale envisaged because I don't think it's interfering with the

14     preparations for the trial in a serious way.  Even if we cut the time

15     down, I suspect it will continue throughout the period until a decision

16     is made to be a running issue, a running sore, as it were, but not one

17     which will directly interfere with the preparations necessary for the

18     trial.

19             Mr. Karadzic, what's been suggested is very sensible, that when

20     you submit your motion, you should, even in the absence of specific

21     factual information which you seek, assume that you're going to get the

22     information that you think exists and advance your legal case on that

23     assumption.  That will enable the Trial Chamber, if it cannot address the

24     whole situation based on a clear factual position, nevertheless to

25     address the legal question that you raise assuming you can prove the

Page 235

 1     facts.  So please address it that way, and that will ensure that this

 2     motion that you will now present will be one which deals fully with the

 3     issue of immunity.

 4             I do not change the indication I've given about the date for you

 5     to submit the motion.

 6             THE ACCUSED: [Interpretation] The 25th of May; is that right?  In

 7     this motion I'm going to include what you have just requested, and that

 8     is the accessible documents.  And I'm grateful for the opportunity to

 9     include the documents that would arrive subsequently, that is to say

10     after that date.

11             JUDGE BONOMY:  Thank you.  But please also bear in mind the

12     suggestion that you assume that you will get them and make your argument

13     accordingly so that the whole position is clear when you submit the -- at

14     least the whole argument that you wish to present is clear when you

15     submit the motion.

16             That I think completes what we have to deal with except the

17     matter that I asked Mr. Tieger to reflect upon during the break, which is

18     the terms of the indictment relating to the various joint criminal

19     enterprises.  Now, if you like, there -- I can go through further

20     passages to explain the predicament if that's going to help you.

21             MR. TIEGER:  It -- I have no objection to that, of course,

22     Your Honour.  I was going to do -- I was going to take a page from the

23     Court's book and do the converse and point the Court to what I thought

24     addressed the concern raised in a clear manner.  For example, I was going

25     to address the Court's concern that Counts 4, 5, and 6 related only to

Page 236

 1     the overarching joint criminal enterprise and point to the portions of

 2     the indictment that indicate the contrary, but I'm more than happy to

 3     proceed in whatever manner the Court thinks more suitable.

 4             JUDGE BONOMY:  If you understood me as saying Counts 4, 5, and 6

 5     only related to the overarching joint criminal enterprise, then you

 6     misunderstood me because that is one situation where it clearly isn't

 7     confined to that, as paragraph 62 makes clear.  But if I can just very

 8     quickly do this with you, Mr. Tieger.  Look at paragraph 37 which relates

 9     to Count 1, genocide, and we'll go through these count by count.  You'll

10     see that in paragraph 37 it's made clear that it's the overarching joint

11     criminal enterprise that is being pled in relation to commission of

12     genocide under Count 1.

13             MR. TIEGER:  The relation -- the reference to paragraphs 9

14     through 14.

15             JUDGE BONOMY:  Yeah.

16             MR. TIEGER:  Yes.

17             JUDGE BONOMY:  And if you look at Count 2 and paragraph 42,

18     you'll see there that the reference is to the third joint criminal

19     enterprise and is confined to that third joint criminal enterprise.

20             MR. TIEGER:  Sorry.

21                           [Pre-Trial Chamber and Legal Officer confer]

22             JUDGE BONOMY:  And as we discussed earlier, there is also

23     reference to JCE 3, and I think it's in paragraph 43.

24             MR. TIEGER:  Yes, it is.

25             JUDGE BONOMY:  So that is Count 2.  Then if you go to Count 3 and

Page 237

 1     paragraph 50, and the count is persecutions, you'll see there that the

 2     reference is to the first overarching joint criminal enterprise.  And

 3     then if you go to Counts 4, 5, and 6, paragraph 62, you'll see there that

 4     the reference is to the overarching one and two of the other joint

 5     criminal enterprises.  Now, all of that I think fits so far with what you

 6     are suggesting.  And then Counts 7 and 8, you'll see at paragraph 70 that

 7     the murder and extermination charges commission is confined apparently to

 8     the first joint criminal enterprise.  And then when we get to Counts 9

 9     and 10 in paragraph 77 --

10             MR. TIEGER:  Just for clarification, Your Honour, for the record

11     I think you said murder and extermination, I believe you meant

12     deportation and inhumane acts for 7 and 8.

13             JUDGE BONOMY:  Sorry, 4, 5, and 6 are murder and extermination.

14     Then 7 and 8, sorry, deportation and inhumane acts, and they are

15     apparently confined as far as commission is concerned to the first joint

16     criminal enterprise.  Then 9 and 10, terror and unlawful acts,

17     paragraph 77, you'll see that that's the second of the averred joint

18     criminal enterprise.  And no reference here to the first one at all.

19             MR. TIEGER:  Correct.

20             JUDGE BONOMY:  And then in Count 11 the third -- sorry -- well,

21     the fourth, the third of the other joint criminal enterprises is referred

22     to in paragraph 84.  And no reference again to the overarching joint

23     criminal enterprise.  Now, you're quite clear that that's what you mean

24     to say?

25             MR. TIEGER:  Well, in fact I think the Court -- I'm a little

Page 238

 1     confused at this point about where the -- we depart in our understanding

 2     of the indictment.  The Court expressly referred to a number of counts as

 3     it proceeded in its recitation where -- that it found to be consistent

 4     with the position earlier articulated by the Prosecution.  I think I now

 5     understand you to be saying that we find ourselves in the end at odds

 6     with the Court's view that there's a problem in the way -- in the

 7     averments here.  It -- to the extent that we've articulated the nature of

 8     the objectives of -- and nature of the JCEs today and in the interim

 9     pre-trial brief, as I mentioned before, yes, I think the indictment is

10     consistent with that and is an expression of that.

11             JUDGE BONOMY:  Just to illustrate the problem.  If the accused

12     was right that there's no basis for having multiple joint criminal

13     enterprises in an indictment like this and the three other joint criminal

14     enterprises were struck down, for charges Counts 9, 10, and 11 you

15     would -- your case would be confined to the forms of liability other than

16     commission; is that right?

17             MR. TIEGER:  Your Honour, we've alleged -- we've alleged clearly

18     a large number of crimes in this indictment.  Again, I'll turn to

19     Counts 4, 5, and 6 because I think they offer a great deal of clarity.

20     Those were committed, as the indictment alleges, in a variety of ways,

21     through various -- various modes of liability.  Commission through three

22     discrete and separate joint criminal enterprises, for -- pursued with

23     different objectives in mind but related objectives, as we've also

24     articulated, through planning, ordering, et cetera.  Those are all

25     expressly identified in the indictment.  Now, one thing we -- and if the

Page 239

 1     Court were inclined to find some flaw in the -- in this indictment, it

 2     certainly could not be that we did not allege these crimes and did not

 3     allege that they were committed through all the modes of liability,

 4     planning, ordering, instigating, and committing, plus aiding and

 5     abetting.  So I would reject that.  But one thing we haven't discussed,

 6     Your Honour, while we've been talking about to some extent the

 7     relationship between the JCEs, the extent to which they overlap,

 8     interrelate, we haven't talked about the accused's notion that charging

 9     focused modes of liability via separate JCEs is some kind of problem

10     analogous to the problem of multiple conspiracies in a jurisdiction like

11     the United States --

12             JUDGE BONOMY:  We don't have a problem with that one, Mr. Tieger.

13     That's why I haven't raised it with you.  That's another -- that's quite

14     a separate issue.  All I wanted to do is ensure that you have had an

15     opportunity to consider whether you've set out these -- the link between

16     these joint criminal enterprises to your own satisfaction.  And you're

17     quite clear that nothing has been omitted here, then we will proceed to

18     deal with the motion.

19             MR. TIEGER:  Well, Your Honour, I would -- again, I mean, I don't

20     know if I mentioned this at the outset, but I'm very grateful for the

21     opportunity to re-address the Court and appreciate the Court's in that

22     regard.  So maybe I'm grabbing at too much here, but I would like an

23     opportunity to review today's record and, if possible, submit something

24     in writing to the Court by tomorrow if there is something that needs to

25     be added.  I obviously tried to articulate the relationship between these

Page 240

 1     JCEs, the nature of the overarching JCEs, the fact that the discrete JCEs

 2     further the objective of the overarching JCE and are quite sufficiently

 3     related to it.  And all -- and what they primarily accomplish is to add

 4     greater focus and specificity to this indictment.  But again, I'd be

 5     pleased for the opportunity to see if there is something that we have

 6     been discussing here that I have failed to properly address to the Court,

 7     and they could provide the Court with additional illumination before it

 8     renders any ruling.

 9             JUDGE BONOMY:  Thank you, Mr. Tieger.

10             Mr. Karadzic, do you want to say any more on this subject?

11             THE ACCUSED: [Interpretation] Certainly, thank you.  Well, not

12     only is it the practice of other national legislations, American's and

13     others, but the practice of this court as well.  There are some 50 cases

14     at this Tribunal and never has this multiple criminal enterprise, joint

15     criminal enterprise occurred.  And I think that this is going to

16     complicate something that's already very complicated and a voluminous

17     case.  And on the other hand, I'm wasting a lot of time here because we

18     might receive the fourth amended indictment only at the end of the year.

19     And I'm sure that this Pre-Trial Chamber and the Appeals Chamber will

20     recognise and adhere to all my requests.  And it would be much better if

21     the Prosecution were to accept your well-intentioned proposals,

22     Your Lordship, and amend the indictment in the space of a few weeks, not

23     to have it arrive in December because then these whole proceedings will

24     be extended a great deal.

25             JUDGE BONOMY:  Thank you.

Page 241

 1             I -- yes, Mr. Tieger.

 2             MR. TIEGER:  I'm sorry, Your Honour, just one quick point of

 3     clarification.  I guess it's the second time, mentioned in the motion,

 4     the accused just mentioned that the representation that multiple JCEs in

 5     a case is unprecedented.  That's not the case, as the Court is aware.

 6             JUDGE BONOMY:  Yes.

 7             It's not going to assist the Trial Chamber to engage in another

 8     round of written submissions because that is effectively what you're

 9     asking, Mr. Tieger.  I think adequate opportunity has been given to both

10     sides to state their position to us, and my colleagues and I will

11     consider what's been said today and take that into account with the other

12     submissions and make a determination of the motion, and that will be

13     fairly soon; it may even be this week.  If it's not this week, it will

14     certainly be next week.

15                           [Pre-Trial Chamber and Legal Officer confer]

16             JUDGE BONOMY:  Mr. Karadzic, is there any other matter you wish

17     to raise?  That exhausts my agenda.

18             THE ACCUSED: [Interpretation] Well, there are a number of motions

19     that are waiting, but I don't want to broach that topic today until the

20     time is ripe to do that.  But I would like to say -- raise some general

21     matters.

22             What regularly happens, as Your Lordship rightly anticipated,

23     that I would be inundated with a vast number of documents and papers, and

24     unfortunately that is what is happening.  And usually on the day of the

25     Status Conference itself or on the eve of the conference.  Now, I need my

Page 242

 1     associates, my legal advisors pro bono and others, those who had been

 2     appointed by the Registry, and they are in Australia, New Zealand,

 3     The Hague, New York, London, so how can I contact them just one day

 4     before the Status Conference and get through all that material and be

 5     ready for the Status Conference?  So what I wanted to say is this:  It

 6     seems that the material is being disclosed to me at the 11th hour, and I

 7     don't receive the documents in Serbian.  So I do need to receive all this

 8     material in Serbian.  Furthermore, I'm afraid that I'll have to make

 9     other requests of the Trial Chamber, that is, to provide me -- that the

10     Court provide me with a laptop.  I'm very cooperative, and I have

11     accepted electronic -- the electronic form.  I'm not asking for hard

12     copies, but I can't appear here and spend time searching through all my

13     papers because I don't have the right to use a laptop in the courtroom,

14     or rather, in my room so that I can prepare all the material to have it

15     easily accessible and then to be able to present it to you here in court.

16     So I would like to have this laptop in my room.  I don't need to have any

17     other connections, modems or whatever, but I think some rules are

18     completely incomprehensible and detrimental to me, and that is one of

19     them, the lack of a laptop.

20             JUDGE BONOMY:  Well, let's not be too critical of either the

21     Trial Chamber or the Prosecution for inundating you with material or for

22     doing things at the last minute.  You've fairly successfully inundated us

23     with loads of material over the past few weeks, and your reference to a

24     number of motions suggests that you've got the more in the offing.  The

25     question of the laptop comes out of the blue, of course, and that's

Page 243

 1     something on which I'm just not in a position to comment because there

 2     may well be a good reason why you can't have a laptop in your room.  All

 3     I can say to you is that I will find out for my own satisfaction what the

 4     position is.

 5             As far as things happening too quickly immediately before the

 6     Status Conference is concerned, that's inevitable.  That's what this

 7     process is about.  The idea of having a Status Conference is to provoke

 8     everyone into action just in case they haven't been as active as they

 9     should be.  So that's going to happen at every Status Conference.  I

10     can't do anything about it.  In fact, I'll be the first to encourage that

11     degree of activity.  So I'm afraid you'll need to get the passports out

12     and bring the -- your supporters on the pro bono staff from Australia or

13     wherever if you want to make full use of the opportunity that every

14     Status Conference raises.  You know perfectly well to what I'm referring.

15     You have chosen this way.  We do our best to satisfy the requirements

16     that go with your chosen method of representation.  We'll continue to do

17     that.  There are limits as you know.  I note what you say, and anything

18     that can be done to assist the exchange of information will be done.

19             Mr. Tieger, is there anything that the Prosecution wish to raise?

20             MR. TIEGER:  Ms. Uertz-Retzlaff will have something, Your Honour,

21     and if I can at the -- I mean, if I can revisit something quickly.  I

22     just wanted to clarify something in terms of the submission I made

23     earlier.  I was looking at the Court's comments.

24             With respect to Count 3 and in reference to paragraph 50, perhaps

25     this will be helpful for the Court, you indicated that that referred only

Page 244

 1     to the first overarching criminal enterprise, Count 50, perhaps, but

 2     Count 3 refers to both -- as you continue on and begin at paragraph 57,

 3     you'll see the reference to Srebrenica, and I believe the same thing is

 4     true with Counts 7 and 8 where you will also see references to the

 5     Srebrenica JCE.  The only other thing I'd like to add or to emphasize, to

 6     the extent it may be helpful, is that the -- there are different -- the

 7     different crime base and different incidents fall within the different

 8     JCEs.  They are not -- the same crimes are not alleged as having been

 9     committed through different commission modes of liability through

10     different JCEs.  That may have been very clear; it may not have been part

11     of the Court's problem, but I felt it necessary to emphasize that in case

12     there was any concern that that was an issue.

13             JUDGE BONOMY:  I'm having to re-read the transcript on what

14     you've just said at the very end, Mr. Tieger.  I don't think I follow

15     that.

16             MR. TIEGER:  I was concerned on the basis of a couple of comments

17     perhaps that I misunderstood, that there may be some misimpression that

18     we find different underlying crimes, such as different individual acts of

19     murder alleged to have been committed through more than one -- as an

20     objective of more than one JCE, for example, that is not alleged.

21             JUDGE BONOMY:  Well, how do you then -- yeah.  So paragraph 62

22     which is the most obvious example, if not the only example, you're saying

23     that insofar as there are three separate commission vehicles in there or

24     commission modes of liability they relate to different murders?

25             MR. TIEGER:  Or I would kind of look at it the other way around,

Page 245

 1     I guess.  If you're looking at the individual murder and trying to

 2     understand the criminal responsibility, it arises from different JCEs.

 3             JUDGE BONOMY:  I think you now focus very clearly with that

 4     submission exactly the point that the accused is trying to make.  Anyway,

 5     thank you very much.

 6             Ms. Uertz-Retzlaff.

 7             MS. UERTZ-RETZLAFF:  Your Honour, there is one issue that I would

 8     like to raise in relation to the Work-Plan.  We are all on track in

 9     relation to the dead-lines given.  We will submit the witness list and

10     the exhibit list and the final trial brief on the 18th of May.  We can

11     make that.

12             However, we have one problem.  In relation to paragraph 7.3 of

13     the order of the 6th of April, and this paragraph says the following:

14             "The list shall indicate with respect to each witness the

15     exhibits which will be referred to in the course of the evidence of the

16     witnesses," likewise, it says also, "with respect to each exhibit which

17     witnesses will refer to the exhibits in evidence."

18             The lists that we will provide on the 18th of March [sic] will

19     include a reference to the tendering witness for almost all the exhibits

20     except for bar table motions and these kind of exceptions.  However,

21     there's a factual reason that we are not able to provide the -- in

22     relation to each and every exhibit information as to which witness would

23     refer to them, different from tendering witness.  This information

24     depends on a variety of future actions and factors.  For instance,

25     whether a 92 bis or 92 quater motion is granted or whether a Rule 94(B)

Page 246

 1     motion is granted or whether a tendering document through bar table is

 2     granted or finally also when a witness that we have planned to discuss an

 3     exhibit with and who would tender it then, if that witness becomes

 4     unavailable, then we really would have a problem and we -- if we have to

 5     make our final decision on all these things on the 18th of May.

 6             And finally there is also a logistical problem.  We have very

 7     tight dead-lines, but we manage to meet them.  But the witness list and

 8     the exhibit lists are currently being prepared and worked on by two

 9     different groups of people within our team.  And they will work on their

10     projects definitely until the 18th of May.  To consolidate and actually

11     bring all this information together so that we can say which witness

12     would even speak about a certain exhibit, we just can't make that on the

13     18th of May for these logistical reasons, and also it's not practical, as

14     I said before.  So that is something that I just want to raise, that this

15     is actually upcoming, and we may request an extension of time to

16     facilitate this particular aspect.

17             JUDGE BONOMY:  Well, I reject your first submission that there

18     are any practical difficulties associated with this.  What the

19     Tribunal -- what the Chamber expects is an indication of the possibility

20     that a witness and a document or exhibit will be common.  So any witness

21     that might speak to this document should be named along with the

22     document, and any document that a witness might speak to should be

23     listed.  92 bis and other applications can't be dealt with at this stage,

24     but the accused is entitled to the implementation of this order to ensure

25     that we facilitate proper preparation of the Defence in the case.  So I

Page 247

 1     reject that.  Your logistical point I'm most sympathetic to.  If that

 2     does cause an insurmountable difficulty, then I'm sure that the Chamber

 3     will be flexible within reason to a certain degree.  For example,

 4     recognising that the date for copies of the exhibits to be actually

 5     produced is later than the date for the list might allow for some

 6     flexibility, but I'm not prepared to modify the order in relation to the

 7     content of these lists.

 8             Now, if that creates another problem and you have to tender a

 9     written motion for further time, then you should do so.  But please do

10     not think that the Chamber will be sympathetic to deleting or not

11     requiring some of the information listed here.  And indeed I ought to

12     make it clear to you now and the accused that there will be a further

13     order pronounced in due course about the content of the Defence pre-trial

14     brief, which will make demands on him.  And in order to enable us to make

15     proper demands on him for clarity that will assist you and us, then it

16     will be our intention to secure implementation as far as possible of the

17     orders we've already made about the lists required from the Prosecution.

18             THE ACCUSED: [Interpretation] If I might be allowed to add

19     something.

20             JUDGE BONOMY:  Mr. Karadzic.

21             THE ACCUSED: [Interpretation] I'm a little concerned about the

22     efforts made by the Prosecution to ensure in such a hasty way this

23     troubling methodology with respect to exhibits, testimony, and so on and

24     so forth.  We would like to ask that we be completely and fully informed.

25     So that we can design our defence strategy, I must know everything about

Page 248

 1     the witnesses and the topics that are going to be discussed.  That's one

 2     matter.  The other matter is that I can say that I'm satisfied with our

 3     method of work, and I would have been more satisfied had I been granted

 4     6.000 more words, as the other side was, for the motion with respect to

 5     Holbrooke.  You granted 6.000 words thus far, but it would be much easier

 6     to write the motion if I were to be allowed 12.000.

 7             JUDGE BONOMY:  6.000 was a very carefully considered figure in

 8     light of the issues.  I don't think it's going to help you, Mr. Karadzic,

 9     or us or the Prosecution for that order to be varied.  The point you wish

10     to make is divided into two parts, and 6.000 is, in the opinion of the

11     Trial Chamber, sufficient to enable you to succinctly make your point.

12     So please comply with that requirement.

13             That completes the work of this Status Conference, and the court

14     is now adjourned.  Thank you.

15             MR. TIEGER:  I'm so sorry, Your Honour.  My apologies for this.

16     Only just to clarify one final point.  Ms. Gustafson advises me that the

17     manner in which I responded to the Court's final inquiry suggested that

18     you could have one individual act of murder, one individual crime arising

19     from multiple JCEs.  That's not the case.

20             JUDGE BONOMY:  No, you said the opposite -- no, I didn't read you

21     as saying that --

22             MR. TIEGER:  I just wanted to make that clear.

23             JUDGE BONOMY:  All right.  Thank you.

24                           --- Whereupon the Status Conference

25                           adjourned at 5.12 p.m.