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
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
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
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
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
25 JUDGE BONOMY: In your notification you refer to 15 to
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
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
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
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.
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
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?
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
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
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.
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
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
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
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
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
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
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
1 enterprise and the joint criminal enterprise to take UN peacekeepers as
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
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
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
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
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
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
9 inflict terror on a besieged population. And that is a different
11 JUDGE BONOMY: Yeah, it is further complicated, as you know, by
12 the fact that the murders in Sarajevo
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
25 sniping and shelling described in Schedule F and Schedule G."
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
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,
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
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
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.
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
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
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
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.
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
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
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
20 MS. UERTZ-RETZLAFF: Yes.
21 JUDGE BONOMY: Now, Rule 70 is nothing to do with victims or
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.
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
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
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
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.
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
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
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
1 your field office in Sarajevo
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
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
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.
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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?
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
25 JUDGE BONOMY: Well, I shall authorise an increase in the word
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
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
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
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
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
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.
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
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
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
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
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
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.
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
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
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
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
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
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
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
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
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
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.
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
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
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
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
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
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
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
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,
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)
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
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
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
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.