1 Friday, 18
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 9.35 a.m.
5 THE REGISTRAR: Good morning, Your Honours.
6 Case number IT-95-14/2-T, the Prosecutor versus Dario
7 Kordic and Mario Cerkez.
8 JUDGE MAY: Yes, Mr. Sayers.
9 MR. SAYERS: Thank you, Mr. President. I
10 have one short preliminary matter that I would like to
11 bring to the Trial Chamber's attention, and I say so
12 with profound embarrassment.
13 Unfortunately, two days ago we delivered to
14 the Prosecution a diskette containing some information
15 that the Prosecution had requested, a table of, as we
16 understood it, the outstanding videotapes that have
17 been submitted and our responses to them.
18 Unfortunately, unknown to us, on the diskette
19 were some unexpunged work product of ours, some fairly
20 significant interviews that I conducted with some of
21 our prospective witnesses. The Prosecution was kind
22 enough to return the video disk to me yesterday, and I
23 communicated with Mr. Nice by fax last night just
24 asking for a representation that no copies, electronic
25 or physical or other, have been made of that diskette
1 or the information upon it, and as far as I understand,
2 there's no objection to making such a representation.
3 These things happen, unfortunately. They've
4 happened in connection with the Prosecution, and we,
5 I'm sure the Court recalls, immediately undertook a
6 representation to that effect, and we would appreciate
7 a parallel one. Thank you.
8 MR. NICE: I didn't mention this matter
9 yesterday in court because I didn't want to cause any
10 unnecessary embarrassment. The diskette was returned,
11 and before I received a letter from Mr. Sayers by fax
12 last night, Ms. Bower, who dealt with the diskette, had
13 written to them on my instructions, setting out the
14 position. And as her letter, faxed at whatever
15 earlier time it was, revealed on first review of the
17 "Various other documents most likely related
18 to your Defence case appeared on the screen. I have
19 not opened, copied, or distributed any of these
20 documents, and also referring from searching further
21 for the table."
22 The diskette was returned immediately after
23 the error was detected. She told me, of course, what
24 she discovered. I sought no details, was provided with
25 none; know nothing about it. It was handed back.
1 JUDGE MAY: Very well.
2 MR. NICE: Can I turn to today's position
3 before the Chamber announces any decisions it might
4 otherwise have made about transcripts?
5 JUDGE MAY: We've made no decisions.
6 MR. NICE: All right.
7 JUDGE MAY: We need to be clear as to what
8 the position is, and then we'll consider what we've got
9 to rule on.
10 MR. NICE: Yes. I think that there is one or
11 two points to be made clear.
12 First of all, in relation to the Kordic
13 Defence, if the Chamber would look at numbers 21 and
14 26, those are the two where Mr. Sayers and I, or one of
15 us, are really to be attempting a negotiation. It was
16 agreed. We have not yet been able to meet, simply for
17 wont of time, to negotiate or discuss it. I think,
18 frankly, we're going to have plenty of time this
19 morning, I'm afraid, because I think we're going to run
20 out of work to do, probably, and I would ask that they
21 be put back so that we can consider them. I'm pretty
22 optimistic that there will either be a compromise or it
23 may be one or other of them can come to give evidence,
24 but I hope that won't be necessary. I'm pretty sure
25 we'll be able to reach a compromise on both. I hope
2 Perhaps the next thing in order is what the
3 Defence for Cerkez have by way of their position in
4 relation to the various numbers they hadn't decided
5 about last night. Again, for pressure of other things,
6 I haven't been able to discuss it with Mr. Kovacic this
7 morning, and I don't know if he's able to tell us
8 anything now or if he wants to discuss it with me. I
9 think he's got a little something to tell you.
10 MR. SAYERS: If I may butt in
11 unceremoniously, Mr. President, there are two witnesses
12 whose closed-session transcripts had not been provided
13 to us earlier, and I informed the Court that I would
14 review them last night. They are witnesses number 15
15 and 17.
16 I have reviewed what has been provided to
17 us. There are still two pages missing for Witness 15,
18 but I must say, reviewing what closed-session testimony
19 has been provided to us, we would probably withdraw our
20 objection, assuming that nothing significant crops up
21 in pages 6739 and 6740 of the transcript that have not
22 been provided to us.
23 With respect to Witness 17, subject to our
24 overall objections regarding lack of confrontation
25 rights and so forth, our objection to that witness
1 would be withdrawn, Your Honour.
2 JUDGE MAY: I'm not sure if I follow the
3 position on that. Are you withdrawing your objection
4 or not?
5 MR. SAYERS: We withdraw our specific
6 objection. Our general position is that we disagree
7 with the wholesale import of transcripts into the
8 record, but --
9 JUDGE MAY: But there's no particular
11 MR. SAYERS: No particular objection, that's
12 correct, Your Honour, yes.
13 JUDGE MAY: Thank you. And as far as 15 is
14 concerned, subject to the last two pages being
15 produced, again there is no particular objection?
16 MR. SAYERS: No particular objection, and I
17 must say I am almost certain that there will be no
18 particular objection, even viewing the last two pages,
19 if they are along the same lines as the materials that
20 were provided to us. Thank you.
21 JUDGE MAY: Yes, Mr. Kovacic.
22 MR. KOVACIC: [Interpretation] Your Honours,
23 my objections run along the same lines as Mr. Sayers's,
24 and they are of principle nature.
25 THE INTERPRETER: Microphone, please.
1 Microphone for Mr. Kovacic.
2 MR. KOVACIC: [Interpretation] So in
3 principle, they are the same and they still stand.
4 As for individual witnesses, we discussed it
5 last night, and in addition to what we already said and
6 those that apply to about 20, we're quite ready to
7 accept 12, 18, 21, and 29. However, I should,
8 nevertheless, like to say, with regard to 12, because
9 that is an important witness -- and my client believes
10 that we do not have to expose that witness once again
11 to that whole story about rape because that testimony
12 is not particularly damaging, at least judging from the
13 Blaskic testimony.
14 There are still --
15 JUDGE MAY: Just a moment. You're talking
16 about 12.
17 MR. KOVACIC: Yes.
18 JUDGE MAY: I can't see a reference to rape
19 in that one.
20 MR. KOVACIC: Pardon?
21 JUDGE MAY: I can so no reference to rape in
22 12. I think you've probably got the wrong number
24 MR. KOVACIC: No. There must have been some
25 mistake in translation or something. Number 12 is, I
1 think -- I think he was the open witness, if I'm not
2 wrong. Let me check. Yes, he was open. I'm talking
3 about Sefkija Dzidic, number 12.
4 JUDGE MAY: Yes.
5 MR. KOVACIC: And we would not object to have
6 his testimony, due to the facts I mentioned.
7 JUDGE MAY: Yes. Then the next one was 18.
8 MR. KOVACIC: [Interpretation] Correct.
9 THE INTERPRETER: If Mr. Kovacic would put
10 his microphone on.
11 JUDGE MAY: The interpreters are asking you
12 to put your microphone on, but it looks as though
13 you've got it on. Perhaps you could approach the
15 MR. KOVACIC: According to the control light,
16 it is. So should I repeat?
17 JUDGE MAY: Yes. It's number 18. You've got
18 no objection.
19 MR. KOVACIC: [Interpretation] Correct.
21 JUDGE MAY: Twenty-one and 29.
22 MR. KOVACIC: [Interpretation] Yes, that is
24 JUDGE MAY: Twenty-nine was a witness about
25 whom the Kordic Defence had no objection. So that
1 could be added to the list of those for whom there is
2 no objection.
3 While we're dealing with this, Mr. Kovacic,
4 just so that we make sure everything is complete,
5 number 48, would you look at that, please; the
6 photographer to do with Zenica. Is there any
7 objection, so far as you're concerned, about that one?
8 MR. KOVACIC: [Interpretation] Your Honour,
9 there is no 48. It goes up to 46. It must be some
10 other number. I apologise. I'm sorry. I apologise.
11 We had him but not on this list. We were given another
13 No. No. We have no objections to that
14 number. Thank you.
15 JUDGE MAY: Yes. Mr. Kovacic, is there
16 anything else that you want to say?
17 MR. KOVACIC: [Interpretation] But I still
18 have at least three who could be of interest for the
19 decision in view of the opinion of the other Defence,
20 but for various reasons, because we do not have the
21 record or the absence of annexes or simply shortage of
22 time, I'm still working on them. I believe that I
23 could give you my definite reply about two of them on
24 Monday, say.
25 JUDGE MAY: What numbers have you not yet
2 MR. KOVACIC: [Interpretation] Twenty-five,
3 32. We have a question about 32.
4 JUDGE MAY: Mine indicates that 32 had been
6 MR. NICE: Yes, it has.
7 JUDGE MAY: Yes. So you needn't trouble
8 about 32, Mr. Kovacic.
9 MR. KOVACIC: [Interpretation] Thirty-four,
10 37, and 39. I do not think there is any need for me to
11 go into detail right now. We do not have some parts of
12 the transcript of the closed sessions. Some of them
13 are lacking various attachments, annexes, and without
14 them one cannot understand that, and some I simply had
15 no time to go through.
16 JUDGE MAY: Very well. Now, Mr. Nice, there
17 is unresolved yet, and we have had no submissions, is
18 number 47, General Blaskic.
19 MR. NICE: Yes. And that raises perhaps
20 another issue of rather general importance that I
21 should have explored more carefully yesterday. My
22 fault for not doing so. That means we may have to
23 revisit one or two of our own applications. This
24 relates to Defence witnesses generally.
25 Can I explain, in straightforward terms, the
1 problem? We've already done it for Blaskic, but I'll
2 repeat it. Where a Defence witness gives evidence that
3 can be separated into different topics, then of course
4 some of those topics may be of importance and value to
5 a case, and they may be wholly unchallenged. Examples
6 are, indeed, the phone calls of which General Blaskic
7 or Colonel Blaskic spoke, phone calls between him and
8 Kordic, and particularly in view of the evidence about
9 the tape, the other evidence about the tape of the
10 transcript -- the tape and its transcript. We would
11 like to have that part of the evidence in. There may
12 be one or two other passages as well, but that part of
13 the evidence in.
14 We obviously don't wish to have the rest of
15 the evidence in, which is exculpatory for Blaskic, who
16 has, to a large degree, a common interest with this
17 defendant, or with one of these defendants.
18 Similar problems may arise in relation to
19 other witnesses for whom we've already made
20 applications. For example, a witness might give
21 important evidence about the sighting of a piece
22 of artillery, a factual piece of evidence, quite
23 capable of being separated, out and we would want that
24 evidence in while not necessarily wanting the balance
25 of his evidence. Or a witness might give evidence of
1 the involvement of Croatia, which could be separated
2 out from his other evidence, which we might not want to
3 go in as our evidence.
4 So that the problem arises in relation to
5 Defence witness transcripts in general: Is it
6 appropriate to take simply part of their evidence when
7 it can be properly compartmentalised in the way I've
8 described? We would say there is no reason why not and
9 every reason why that approach can be made.
10 There's a particular reason why it can be
11 made in this Tribunal, whereas it might be more
12 difficult to envisage it happening in other domestic
13 jurisdictions with which we're all and independently
15 The reason why it can be regarded as
16 appropriate in this Tribunal is that the general rule
17 on taking evidence in chief is that cross-examination
18 that follows is limited, subject to leave, to exactly
19 that evidence. So if one imagines one of the witnesses
20 for the Defence identified as witnesses whose
21 transcripts we would like to be before you or whose
22 transcripts in part we would like to be before you, if
23 we envisage one of those witnesses coming to court and
24 giving evidence on the narrow issue for which we would
25 want them, then if that issue is non-contentious and if
1 there was no question of further leave being given to
2 cross-examine outside of that topic, then that would be
3 an end of the matter. That is, of course, a practice
4 particular to this Tribunal.
5 So we would say, in general, that there is
6 every reason -- and it's matter of practical good sense
7 in the appropriate circumstances of a particular
8 witness and case. It's practical, good sense to take
9 evidence in part from Defence witnesses, particularly
10 if they've been cross-examined if cross-examination on
11 the topic was appropriate, and to let that evidence go
12 in as part of the Prosecution's case. That will leave
13 the position as follows: The Defence are always in a
14 position to call that witness. Alternatively, at the
15 end of Defence evidence, if evidence from that witness
16 would be supportive of other evidence or is otherwise
17 admissible as a transcript, then again part of it could
18 be adduced to support their case.
19 But our concern, my concern, and I have to
20 say it relates not just to Blaskic but to two other
21 witnesses with whom we dealt yesterday and, as it were,
22 in respect of whom I might, as it were, be suspending
23 our application at the moment pending resolution of the
24 issue in principle, what we don't want -- indeed it
25 wouldn't be helpful -- would be for one or more
1 sentences from a witness, who was really adduced for
2 transcript purposes for a particular topic by us but
3 who said other things favourable to Blaskic and capable
4 of being adopted by the Defence here, it wouldn't be
5 helpful or desirable for those sentences to be counted
6 as part of our case, because in an adversarial setting
7 you've always got to recognise what may happen. You
8 can't have it being said, "Here was a Prosecution
9 witness who said this," when it's never part of the
10 Prosecution's case. It's another reason for taking a
11 realistic, if I may say so, view of taking transcripts
12 from Defence witnesses in part.
13 JUDGE MAY: Before you move on, so that we
14 know which witnesses you're dealing with, which of the
16 MR. NICE: The other two are the witnesses
17 who we dealt with in private session yesterday
18 afternoon, whose name we can't give but Mr. Scott dealt
19 with --
20 JUDGE MAY: Which number?
21 MR. NICE: He wasn't numbered. He was simply
23 JUDGE MAY: He's not on this --
24 MR. NICE: He's not on the list, but
25 Mr. Scott dealt with him.
1 JUDGE MAY: So we don't have to consider him
2 this morning.
3 MR. NICE: And then the other -- the Court
4 will remember that there was no Defence objection to
5 his transcript, but if we can count that as the time
6 being suspended, the Prosecution team generally, in any
7 event, would like a little time in relation to these
8 two witnesses.
9 And the other one is number -- now I've lost
10 the number, I'm afraid. It relates to the -- it's the
11 artillery point that I was mentioning, and it's number
13 I'm sorry for not having been personally on
14 top of this better yesterday -- I should have been,
15 it's entirely my fault -- so that I could have invited
16 you to deal with the argument in principle first before
17 we then dealt with these three witnesses.
18 You'll see the nature of the objection or the
19 non-objection set out there, the Defence being quite
20 clear about that. So I apologize to them for not --
21 JUDGE MAY: Well, we will not consider 45
23 MR. NICE: Thank you very much.
24 JUDGE MAY: But considering Colonel Blaskic's
25 evidence, what you would seek to do is to put in a part
1 relating to the taped conversations?
2 MR. NICE: Correct, or conversations
3 generally, but --
4 JUDGE MAY: Conversations generally. You
5 would not seek to put in the rest, the other 5.000
6 pages or whatever it is?
7 MR. NICE: Absolutely, and obviously we would
8 have to, before -- maybe the matter can be considered
9 in principle, and depending on the answer to that
10 question, then we can be clear with the Defence exactly
11 which pages we want to go in. And no doubt there would
12 be room for discussion between us, because it would, of
13 course, be right that if the Chamber took the view that
14 any given topic was capable of being separated out and
15 presented in transcript, then of course that topic,
16 wherever it appears, in examination-in-chief or
17 cross-examination, would have to go in. I accept that,
18 of course.
19 JUDGE MAY: There's a broader question of
20 principle with respect to this particular witness.
21 MR. NICE: Absolutely, yes.
22 JUDGE BENNOUNA: Just to remind you,
23 Mr. Nice, about the new Rule 90, I think there is some
24 answer to your question in "(H)", new "(H)" of Rule
25 90. In the cross-examination of a witness, and this is
1 H(i), which is the former Rule, the cross-examination
2 should be limited to the subject matter of the evidence
3 in chief, which we know, and then we have the "(ii)".
4 "In the cross-examination of a witness who is
5 able to give evidence relevant to the case for the
6 cross-examination party, counsel shall put to that
7 witness the nature of the case of the party for whom
8 that counsel appeals which is in contradiction of the
9 evidence given by the witness."
10 And then we have the "(iii)":
11 "The Trial Chamber may, in the exercise of
12 its discretion, permit inquiry into additional
13 matter. "
14 Now it is more open than you mentioned in
15 your --
16 MR. NICE: I quite understand that and accept
17 that that's the drift of the Tribunal, although, of
18 course, we are, for these purposes, I think, still
19 working broadly on the earlier Rules. But that
20 doesn't, I think, affect the principle. Nor, indeed,
21 does it accept the general utility of this sort of
22 evidence for the Chamber, because where you've got,
23 say, a factual matter like the deployment of troops
24 dealt with as a separate issue by a witness, not
25 challenged in Blaskic, perhaps a military man likely to
1 be independent and accurate on such factual matters,
2 then it's likely to be helpful to have that evidence.
3 But I'm grateful to Your Honour for reminding me of the
4 change in the Rules.
5 That's all I have to say on the general
7 MR. SAYERS: Mr. President, speaking for
8 Mr. Kordic and thinking on our feet here, let me make
9 the following points with respect to the arguments that
10 the Prosecution makes:
11 As you correctly point out, there is a
12 fundamental issue of principle which governs the
13 determination of this matter. We would point out that
14 there is nothing specifically in the Rules of Procedure
15 and Rules of Evidence that permits the admission of
16 transcripts anyway. It's a judicial decision that has
17 resulted in that particular practice, the Aleksovski
18 case. And we would submit that for the reasons I've
19 previously articulated to the Court and won't go into
20 again, that decision was not intended to open the
21 floodgates of other cases' transcripts flowing into the
22 particular case being tried where the particular
23 defendant has no right to confront and certainly no
24 right to cross-examine the witnesses whose transcripts
25 come into evidence.
1 JUDGE MAY: Remember what we said in Tulica,
2 which is what we're likely to apply here, which is that
3 it's for you to show what matters you would
4 cross-examine on which haven't been covered in another
5 case. But I accept that this witness is in a different
7 MR. SAYERS: I think that he is in a
8 different category, and I would suggest also to the
9 Trial Chamber that there is nothing in the Aleksovski
10 case, and I think there's nothing in the Tulica
11 decision in this case either, that permits one party to
12 pick over, as it were, the testimony of other
13 witnesses, whether called by the Defence or called by
14 the Prosecution in other cases, and to select out the
15 bits and pieces of the testimony that they like while
16 ignoring the bits and pieces that they don't like.
17 We would submit that it's an all-or-nothing
18 proposition. Either all of the testimony comes in or
19 none of it comes in. That's a very simple position and
20 that's exactly how it should be, and there's no reason
21 for treating General Blaskic in a category that's
22 different from any other witness, we would submit.
23 I think that certainly this selecting bits
24 and pieces of testimony raises most particularly the
25 confrontation rights and the cross-examination rights
1 that are embedded in the Statute and the Rules. Those
2 rights are absolutely fundamental, and it's almost a
3 slippery slope. Once you start chipping away at them,
4 all of a sudden you've chipped away a lot before you've
5 even realized that they are gone. They are precious
6 rights and they can't be infringed. They are minimum
7 guarantees. That's exactly what Article 21(4) of the
8 Statute says. I'm sure I have no need to remind the
9 Trial Chamber of that, other than to say that they are
10 precious rights, and certainly from the perspective of
11 Mr. Kordic, he regards those rights as precious too.
12 And I think it's extremely dangerous when you adopt
13 this eclectic approach, and we are opposed to it in
15 Furthermore, with respect to General Blaskic,
16 and I don't want to overemphasise this point, but let
17 me just remind the Trial Chamber that --
18 JUDGE MAY: You can take it on a narrower
19 point, can't you? Is there something that you would
20 want to cross-examine about in Blaskic?
21 Just thinking aloud about this, of course,
22 what normally happens is that it was held that there
23 was an identity of interest between, in Aleksovski,
24 that case, the accused in that case and Mr. Blaskic,
25 Colonel Blaskic. What is being sought to be done here
1 is to put in a transcript of his evidence, the
2 cross-examination being provided by the Prosecution,
3 who cannot possibly be said to have had an identity of
5 MR. SAYERS: That's an excellent point and
6 not one that I had considered particularly. But I
7 think that -- now that I think about it, with respect
8 to the particular points that the Prosecution would
9 seek to adduce, even adopting the suggestion that the
10 Prosecution has just outlined to you, it seems to me,
11 anyway, that with respect to the subject matter of that
12 testimony, there would absolutely have to be an
13 identity of interest between the person that was
14 subjected to direct and cross-examination and between
15 the particular defendant in this case.
16 We're speaking in somewhat theoretical
17 terms. I fully realize that. It seems not to make a
18 lot of sense to go much further, I suppose, except on
19 matters of principle. But if the procedure that --
20 THE INTERPRETER: Will you slow down,
21 Mr. Sayers, please?
22 MR. SAYERS: If the procedure that the
23 Prosecution suggests were to be adopted, it seems to
24 me, just thinking out loud, there would have to be an
25 interest between the various parties just on those
1 particular points, and I don't know what it is that
2 they suggest, but I would very strongly suspect that
3 there would be --
4 THE INTERPRETER: Could Mr. Sayers slow down,
6 [Trial Chamber confers]
7 JUDGE MAY: Is there anything else you want
8 to say, Mr. Sayers, on the Blaskic issue?
9 MR. SAYERS: Yes. With respect to the Tulica
10 decision, we respectfully point out to the Trial
11 Chamber that the two individuals involved in that
12 decision were so-called village witnesses, I suppose,
13 to use the vernacular that we've adopted in this
14 trial. In that context, frankly speaking, it's hard to
15 articulate a particular reason why a witness who has
16 already testified and been subjected to the pressures
17 that we've all seen this week should be dragged back to
18 court to testify yet again to the same material.
19 Insofar as village witnesses are concerned,
20 it could be said, it seems to me, that there is a
21 significant synonymity of interest between both
22 defendants here and General Blaskic. But for witnesses
23 who give testimony on other contested issues, more
24 significant factual issues, it's hard to say there is a
25 real synonymity of interest, and that's something that
1 I just want to throw up for the Trial Chamber's
2 consideration as it analyses these witnesses. I think
3 that the village witnesses do fall into a different
4 category different from the other significant factual
5 witnesses. Thank you.
6 JUDGE MAY: Mr. Nice.
7 MR. NICE: I think the only point that I
8 would add is that the Chamber is quite right to say
9 there has been no cross-examination by a party with an
10 identity of interest but the evidence has been led by a
11 party with effectively an identity of interest, and
12 that's the way I meet that point. But I have nothing
13 else to add in amplification unless there is anything I
14 can help you with in particular.
15 JUDGE MAY: No.
16 [Trial Chamber confers]
17 JUDGE MAY: We will give our ruling in
18 relation to the testimony of Colonel Blaskic. We are
19 against the admission of that transcript for the reason
20 which have been just recently adumbrated.
21 First of all, we do not think it a
22 satisfactory practice, unless there are particular
23 reasons -- and there are none here -- why part of a
24 transcript should be admitted. We think that if you're
25 going to admit a transcript, normally you should admit
1 the whole transcript.
2 I would point out that is rather different,
3 it is different from what we have invited the parties
4 to do here, which is to point out what parts of a
5 transcript they rely on. That is different to
6 admitting only part of the transcript.
7 There is a general point as to whether it is
8 desirable or fair to introduce the evidence of an
9 accused in one case against an accused in another, but
10 we don't have to decide that, because we've decided on
11 the grounds that we do not think selection is right in
12 this case.
13 Secondly, the decision which we have based
14 our consideration on, namely, the Tulica decision which
15 we gave in July, refers specifically to village
16 witnesses who, as Mr. Sayers quite correctly has said,
17 it may be wrong to bring back to give evidence about
18 something in which the accused in this case, the two
19 accused in this case, and Colonel Blaskic in his case,
20 had a broad identity of interest.
21 Now, in the case of Colonel Blaskic's own
22 evidence, that cannot be said to be the case. There
23 was no opportunity to cross-examine on behalf of this
24 accused or anything like it. So we think that the
25 application is misconceived, if one may say so, with
1 respect, and we shall reject it.
2 MR. NICE: In those circumstances, can we
3 count the other two Defence witnesses, that's Zeko and
4 the one that Mr. Scott referred to yesterday, as
5 suspended for the time being? We recognize that there
6 are the two that I still have to discuss with
7 Mr. Sayers; there are the three, I think, outstanding
8 for the --
9 JUDGE MAY: Let's take this item by item so
10 we know what we have to decide on. Suspended on
11 Prosecution application number --
12 MR. NICE: Forty-five, and the unnumbered one
13 dealt with in closed session yesterday afternoon.
14 JUDGE MAY: Suspended for discussion 21 and
16 MR. NICE: I think that's correct.
17 JUDGE MAY: I have a question about that to
18 which I can return. Any ruling we make will be subject
19 to any submissions by Mr. Kovacic in relation to those
20 matters which he hasn't completed; that is, 25, 34, 37,
21 and 39, and we'll hear anything he wants to say in
22 addition on Monday, although we may make a provisional
23 ruling in relation to those matters, subject to his
25 There were some other matters which I thought
1 that the parties were going to discuss; namely, 10 and
2 12, according to my notes.
3 MR. NICE: Your Honour is quite right in
4 relation to 10, that there's a note about compromise.
5 This relates to Mr. Cerkez, and I don't believe that
6 Mr. Kovacic and I have gone through that in sufficient
7 detail. So again, that one would have to be
8 suspended --
9 JUDGE MAY: That's suspended.
10 MR. NICE: -- for discussion. Your Honour is
11 quite right. I'm grateful to be reminded.
12 JUDGE MAY: Number 12.
13 MR. NICE: My understanding is that there is
14 no objection from Cerkez in relation to number 12, but
15 my recollection is that the Court expressed a
16 provisional view yesterday.
17 JUDGE MAY: Yes.
18 MR. NICE: I may be wrong, but a provisional
19 view that rather made moot discussions with Cerkez.
20 JUDGE MAY: Yes. That is my note, that I did
21 express a view about that. This is the TO commander.
22 I better say no more about that.
23 Mr. Sayers, what is your position? Number
25 MR. SAYERS: With the Trial Chamber's
1 permission, I have not reviewed the testimony of this
2 witness. It's done by another person on our team.
3 Could I request the Trial Chamber's leave to review
4 this witness's testimony over the weekend? I will let
5 you know that it is extremely extensive testimony, and
6 perhaps we will reconsider our objection since we're in
7 the mood for compromise, I suppose, today somewhat.
8 JUDGE MAY: This is a witness who, I think, I
9 indicated was one that could possibly be called. I
10 think the Prosecution say he's not willing.
11 MR. NICE: Last known not willing.
12 Therefore, if he is to be called, we'll put steps in
13 hand today to --
14 JUDGE MAY: Perhaps that might be a sensible
16 MR. NICE: Yes. To see how far we can get
17 with that.
18 [Trial Chamber confers]
19 JUDGE MAY: Well, on number 12,
20 Judge Bennouna points out that Mr. Kovacic said, I
21 think, earlier that he was content for that witness not
22 to have to come back.
23 MR. NICE: He is.
24 JUDGE MAY: It may be that there will be time
25 this morning, because we'll clearly finish fairly
1 early, for counsel to discuss what the best course to
2 take about that witness is.
3 Mr. Sayers, if would you also join in,
5 MR. KOVACIC: Your Honour, if I may
6 contribute -- sorry. If I may contribute to that
7 slightly. Its a little bit difficult to talk about,
8 but we have been informed during our investigation that
9 this witness was practically expelled from the army of
10 Bosnia after testifying in Blaskic. Not expelled but
11 degradated a rank or so and sent in the place where God
12 said good night. I mean, after that there were really
14 My client was in a good relationship with the
15 person before the war, and we simply would not like to
16 embarrass him once again. And our interest, which you
17 mentioned, with our identity of the interests and
18 cross-examination of Blaskic defence and our defence, I
19 think there is really this particular situation there.
20 There is no difference in this.
21 JUDGE MAY: Very well. Well, if some
22 agreement can be arrived at between counsel which means
23 that he doesn't have to come to give evidence, so much
24 the better.
25 MR. NICE: Yes, and I'm grateful to
1 Mr. Kovacic for explaining to the Court the reasons
2 why, no doubt, he's unwilling to come again.
3 JUDGE MAY: Yes. Mr. Nice, it's also pointed
4 out to me, and I see from my own note, that in regard
5 to 38, there was to be some discussion about the
6 excision of evidence. This is one of the BritBat
8 MR. NICE: That's right. This is the witness
9 we require on a fairly narrow point, the village of
10 Kazagici, but by your earlier ruling in relation to --
11 and the objection was, effectively, I think, that it
12 was cumulative.
13 By your general ruling in relation to
14 Blaskic, I think the position might be that the
15 witness's transcript could be admitted if you were so
16 minded, but, of course, we would then, in accordance
17 with our undertaking to His Honour Judge Bennouna in
18 particular and all of you in general, we would then
19 identify the pages that are actually material, which
20 might be very limited in number.
21 JUDGE MAY: Very well. Can I just go through
22 what we have so far to make sure we are all operating
23 under the same rules and there are no mistakes.
24 Suspended for Prosecution application,
25 number 45; suspended for the parties to discuss, 21,
1 26, 10. I've got one other note which I cannot read.
2 What was the other one?
3 MR. NICE: Twelve. That's Sefkija Dzidic, I
5 JUDGE MAY: Twelve. Certainly. That must be
6 it. Thank you.
7 And you are calling Mr. Landry at number 28.
8 MR. NICE: That's certainly our intention,
9 and he's agreed to come.
10 JUDGE MAY: Yes. I'm operating on the
11 understanding that the Prosecution are not now relying
12 on nine.
13 MR. NICE: Correct.
14 JUDGE MAY: Thirteen and 14.
15 MR. NICE: Correct.
16 JUDGE MAY: Twenty.
17 MR. NICE: Correct.
18 JUDGE MAY: Thirty-two.
19 MR. NICE: Correct.
20 JUDGE MAY: Thirty-three.
21 MR. NICE: Correct.
22 JUDGE MAY: And forty-two.
23 MR. NICE: Also correct.
24 JUDGE MAY: I'm sorry?
25 MR. NICE: Yes, also correct.
1 JUDGE MAY: And that there is now
2 agreement -- and if this is not the case would somebody
3 point it out -- on 5, 6, 15, and 17, subject to the
4 provision of some items of closed testimony which may
5 change the position.
6 MR. SAYERS: Mr. President, as to 17, all of
7 the closed testimony has been provided to us, and we
8 withdraw our particular objection.
9 JUDGE MAY: So 17, no objection.
10 MR. SAYERS: Yes.
11 JUDGE MAY: Fifteen is subject to the
12 provision of two pages of closed testimony.
13 Twenty-two, 29, and 48.
14 Now, those matters being either agreed or not
15 relied on, and some matters still outstanding, it seems
16 sensible for us to consider the other matters.
17 As I've said in relation to Mr. Cerkez, then
18 any ruling we make in relation to matters which he has
19 not yet completed will be only of a provisional nature
20 in relation to what Mr. Kordic has said. But it would,
21 I think, be helpful for us to make rulings on all these
22 matters as soon as possible.
23 MR. NICE: Certainly, and we would be very
24 grateful for that, and indeed we would be grateful for
25 the opportunity of having any subpoenas that we may
1 seek consequent on the orders dealt with today if we
2 are able to first decide and then get them in to a
3 Judge in time. But it may not be possible. I don't
5 JUDGE MAY: Before we do adjourn, let me
6 mention one matter concerning sittings next week.
7 The Chamber have considered the position, and
8 it would be convenient to one member or another to sit
9 a shorter week, possibly three days in all. But it is
10 subject, of course, to considerations of witnesses and
11 the like.
12 The proposal is that we should sit from 2.30
13 to 5.30 with a break on Monday, so not start until
14 2.30. We're not sitting Wednesday afternoon, and it
15 would be convenient to one member of the Chamber not to
16 sit on Wednesday morning. And of course we shall not
17 sit, in any event, on Friday afternoon.
18 Is that program going to present any
20 MR. NICE: I'm pretty sure that's not going
21 to cause us any problems, and I'm pretty sure that the
22 work we have to do next week can be accomplished within
23 that time.
24 If I find to my surprise that there are
25 witnesses available in addition to the one very short
1 witness I have for next week, I'll let you know, but I
2 don't see it as very likely because methods of
3 compulsion of witnesses and even methods of getting
4 witnesses here by consent usually takes more than a
6 JUDGE MAY: So you've got one witness?
7 MR. NICE: Only the one witness.
8 JUDGE MAY: I thought there was an
10 MR. NICE: Sorry, the one witness from
11 Bosnia. Then there are the two investigators.
12 JUDGE MAY: Two investigators, one in Bosnia,
13 but there was talk of Mr. Landry.
14 MR. NICE: There was talk of Mr. Landry.
15 There's been no further information as to whether he's
16 prepared to accelerate. I'm grateful to Your Honour
17 for reminding me. I think he's still on the week of
18 the 28th. He's coming from, I think, America.
19 JUDGE MAY: So, effectively, there's about a
20 day's work, though?
21 MR. NICE: Well, we've got the argument on
22 dead and unwilling witnesses, and I must say something
23 about that after the adjournment to make sure my
24 learned friends are prepared to deal with one aspect of
25 that. And indeed can I respectfully remind the Chamber
1 that before I tell them about that, in theory, there is
2 a decision to be made about one particular witness and
3 his possible compulsion here and so on.
4 JUDGE MAY: That decision has been made and
5 will be communicated shortly.
6 It may be convenient if the parties consider
7 what we should be doing next week rather than embarking
8 on a lot of argument later this morning.
9 MR. NICE: I've set out a timetable, I think,
10 already, and my learned friends joining me want me to
11 change some aspects of it because I hadn't adequately
12 reflected their interests. But I think we can discuss
13 the general timetable perhaps during the adjournment.
14 JUDGE MAY: Yes. Very well, we'll adjourn
15 now. We'll consider this. We'll sit in half an hour,
16 unless you get a message to the contrary.
17 [Trial Chamber confers]
18 --- Recess taken at 10.35 a.m.
19 --- On resuming at 11.32 a.m.
20 JUDGE MAY: In giving our ruling in relation
21 to the application for the admission of transcripts, I
22 do so using the numbers of the various witnesses set
23 out in the Prosecution motion for admission. I deal
24 first of all with the matters which are not in dispute
25 so that we have a complete record.
1 No objection is taken now to numbers 5, 6,
2 15, subject to two pages of closed-session testimony
3 which have to be provided, 16, 17, 22, 43, 29 and 48.
4 These transcripts will be admitted, subject to the one
5 matter I mentioned in relation to number 15, if there
6 is a further submission.
7 The Prosecution are not relying on numbers 9,
8 13, 14, 20, 32, 33 and 42. Accordingly, they will be
10 The witness referred to at number 28 is to be
11 called. The transcript will therefore be excluded.
12 The Prosecution have suspended their
13 application in relation to number 45, and they must
14 notify us next week of whether they wish to proceed
15 with that application or not.
16 In relation to the following, consideration
17 of the matters between counsel is continuing, and they
18 will also be adjourned -- consideration on them will
19 also be adjourned until next week. Ten, 12, 21, 26 and
21 Mr. Kovacic has notified us that he has not
22 yet considered numbers 25, 34, 37 and 39, and the
23 rulings which we now make are therefore subject to any
24 submissions which he may think it right to make next
25 week on those particular transcripts.
1 I deal with the basis of our ruling, which is
2 based on the decision which we gave in relation to what
3 was called the "Tulica dossier" or binder of documents,
4 when we fully considered what should be admitted,
5 including transcripts, and it related to witnesses who
6 had given evidence in the Blaskic case. We relied on
7 the principle laid down by the Appeals Chamber decision
8 of the 16th of February, 1999, in Aleksovski, with
9 regard to the admission of transcripts, in which the
10 Appeals Chamber noted that the disadvantage of a party
11 not being able to cross-examine a witness whose
12 transcript was admitted is tempered by the
13 cross-examination in another case.
14 In the Tulica decision, in which we
15 considered transcripts of those who had given evidence
16 in Blaskic, we ruled that they should be admitted,
17 subject to any Defence application for
18 cross-examination on the ground that significant
19 relevant matter was not covered by the
20 cross-examination in Blaskic.
21 In the present case -- I should say that the
22 Tulica decision was given on the 29th of July, 1999.
23 In the present case, the transcripts also
24 come from the Blaskic case, which is concerned about
25 events in the same area, at the same time, with accused
1 who were both -- all three, rather, Bosnian Croats. In
2 one case, the case of Colonel Blaskic, he was a
3 military leader, Mr. Cerkez also a military leader, and
4 Mr. Kordic a political leader.
5 Therefore, in relation to the background
6 issues, that is, whether there was fighting in a
7 particular instance, who started it, the nature of the
8 fighting, the casualties, on those matters the same
9 issues have been covered in both cases, and apart from
10 the matters which we will deal with here during the
11 course of this ruling, the Defence have generally not
12 raised any significant relevant matter on which they
13 say they are entitled to cross-examine or on which, in
14 the view of the Trial Chamber, they are entitled to
15 cross-examine in this case. Indeed, Mr. Sayers very
16 properly pointed out this morning that to bring back
17 witnesses to give evidence about these difficult
18 matters for them is to put a burden upon them which, if
19 possible, should be avoided. The first category of
20 witnesses I deal with are very much under that heading,
21 and that is what has been referred to as "village
22 witnesses"; i.e., witnesses who come from the various
23 towns and villages and give evidence of the background
24 events which form the basis of these counts.
25 The numbers which I deal with now are these:
1 Witness numbers 1, 2, 4, 7, 8, 11, 16, 23, 25, 34, 37,
2 39, 40, and 41. These are the witnesses about whom no
3 concession is made.
4 The complaints, as set out in the Defence
5 document, are, in the view of the Trial Chamber,
6 matters which goes to the weight of the evidence rather
7 than whether we should admit the transcripts or not.
8 So that includes references to hearsay, speculation by
9 the witnesses, inconsistency in the evidence, and
10 whether the evidence is relevant or not. All those are
11 matters which the Trial Chamber would have to consider
12 when deciding what weight to give to the evidence but
13 does not provide a ground for excluding the evidence
14 and certainly not a ground for saying the witness
15 should be brought here to be cross-examined. However,
16 there are occasions when exhibits are requested. They
17 should be provided before the evidence is admitted.
18 Likewise, any closed-session testimony.
19 We would also note that the summary which the
20 Prosecution have provided for us in their document is,
21 of course, not evidence and merely an indication of
22 what a witness says. Therefore, any objections to that
23 are not strictly relevant.
24 One witness is outstanding from this
25 category, and that is number 36. We have considered
1 this witness's evidence. We think that this is a
2 witness who should be called, giving, as the witness
3 does, direct evidence about one of the accused, and
4 that's a matter upon which the accused would be
5 entitled to confront the witness and cross-examine him
6 or her.
7 We turn next to the BritBat witnesses, if I
8 may use that as a term or category. They're in a
9 slightly different position to the village witnesses.
10 Clearly, they have not had to live through traumatic
11 events or nothing like as traumatic as the village
12 witnesses, many of them. But nonetheless, the issue
13 that we've considered in the case of these witnesses is
14 whether their evidence really adds anything to the case
15 which we have heard. Voluminous materials have been
16 provided and are being provided, and we have to ask
17 whether a witness adds anything or is just purely
18 cumulative to the case as a whole. On that basis, I'm
19 dealing with 18, 19, 27, 35, and 44.
20 We will admit the evidence of numbers 18 and
21 44, because we've come to the conclusion that they may
22 have new matter to deal with in relation to Ahmici and
23 the events that day but not such as to call for
24 additional cross-examination other than they have been
25 subjected to in other cases, one in Blaskic, the other
1 in Kupreskic.
2 As for 19, 27, and 35, we think that
3 different matters, different considerations apply. The
4 Prosecution were not able to specify, with any detail,
5 as to what additional matter these witnesses may be
6 able to give evidence about, and we've come to the
7 conclusion that they would be cumulative, and as such,
8 they're not going to help us, and we will exclude their
9 evidence. That, of course, would mean that we exclude
10 their evidence as far as the transcript is concerned
11 but also if there were any application to call them,
12 which we would not encourage.
13 Similar considerations may be said to apply
14 to the two witnesses from the ECMM, number 30 and 31.
15 Number 30 we will admit as having significant or may
16 have some significant new evidence on this matter.
17 Defence say about number 30 that there may be other
18 matters upon which he could be cross-examined because
19 of new documentation, but he was cross-examined in
20 Blaskic and that, in our judgement, is sufficient and
21 nothing new or significant has been mentioned.
22 Number 31, on the other hand, we have come to
23 the conclusion it adds nothing. We have had a
24 considerable amount of evidence about these matters,
25 which he covers.
1 That leaves three outstanding witnesses who
2 gave evidence in Blaskic, and as far as they were
3 concerned, it's difficult to see how these accused and
4 Colonel Blaskic could not have an identity of interest
5 having regard to the matters about which they give
7 In relation to number 3, Mr. Ashdown, the
8 British politician who had conversation with
9 Mr. Tudjman, we are satisfied that any matter for
10 cross-examination would have been covered in Blaskic.
11 The issue on the diary is not one which
12 should lead us to exclude the transcript, although it
13 may be -- on further consideration, we may decide not
14 to rely on any evidence which arises from it, the
15 Defence not having had the opportunity to see it. But
16 as far as that goes, we shall have to look at the
17 evidence in more detail before making a ruling.
18 However, the transcript is admissible.
19 Similar considerations apply in relation to
20 number 46, again a witness giving evidence about
21 conversations with Mr. Tudjman. He was fully
22 cross-examined in the Blaskic case. The fact that
23 there is no new material, the fact that there may have
24 been further material which has been disclosed does
25 not, in our judgement, amount to a significant matter
1 for further cross-examination.
2 In his case, diplomatic cables were quoted,
3 which the Prosecution have not been able to obtain from
4 the relevant country, the relevant state, but as we
5 accept, the witness was fully cross-examined about that
6 matter, about them during the course of his examination
7 in the Blaskic trial and, accordingly, that the fact
8 that they're not available does not prevent the
9 evidence being given in this case. Again, it is not
10 significant or relevant enough to cause exclusion.
11 Finally, witness number 24 from UNESCO. We
12 have come to the same conclusion about his evidence as
13 we came to in relation to some of the BritBat evidence,
14 namely, that there has been much evidence about the
15 destruction of religious property, and in those
16 circumstances, we do not see that this evidence is
17 going to add anything to what we have already heard.
18 And as far as the remainder of his evidence is
19 concerned in relation to his opinions and the like,
20 well, those are matters which, again, are not really
21 going to assist us. We shall have to make our own
22 minds up about those matters. For that reason, 24 is
23 excluded, but 3 and 46 are admitted.
24 I think that concludes the list of
25 witnesses. If there's anything anybody wants to raise
1 in due course, they can.
2 Mr. Nice, could I ask the Prosecution,
3 please, to provide these documents in coherent form, in
4 binders with tabs and indexes, properly presented.
5 MR. NICE: We could do that. Would it help
6 if we identified the relevant pages, to assist, on that
7 very document? We can most probably conveniently do it
8 by marking the side of the page which a line, perhaps
9 highlighting is a bit too extravagant an effect, but
10 marking the side of the pages will we say are
11 relevant. The Defence could have the document, perhaps
12 before it comes to the Chamber, to mark in a different
13 way the passage they would want you to rely upon, and
14 in that way the Chamber's reading would be
15 significantly reduced.
16 JUDGE MAY: If that can be done fairly
17 rapidly, then yes. It would seem a sensible
19 MR. SAYERS: It does seem a sensible
20 suggestion, Your Honour.
21 JUDGE MAY: And it would save what may be a
22 long hearing, with us marking everything with
24 MR. NICE: Yes. So we'll produce one, we'll
25 provide it to the Defence for them to mark, and then
1 we'll copy and distribute the double-marked document.
2 JUDGE MAY: Yes. If that could be done,
3 again, as expeditiously as possible.
4 MR. NICE: Yes, indeed. I think that pretty
5 well winds the position up for today. If I can -- it's
6 a bit impertinent of me to say that. That concludes
7 all I can deal with today. It's a matter of the Court,
8 of course, when we come to an end, but can I just deal
9 with a couple of things.
10 As to next week's work, in addition to the
11 material I identified or the topics I identified
12 before, there's the possibility of two subpoena
13 witnesses arriving. We'll have to wait and see. There
14 is, of course, quite a lot of work being done, first
15 between counsel and then possibly involving the Court,
16 on the exhibit list. So I think one way or another, we
17 may find that the available time will be fully used. I
18 certainly hope so.
2 there is material going to show that he first denied,
3 to some degree, and that may need clarification;
4 secondly, made admissions about and, thirdly, made
5 denials about certain events involving the defendant
6 Cerkez. We will be arguing that all that material
7 should now be before the Court for its consideration as
8 part of that general argument on dead and unwilling
10 One other matter of detail. At the
11 conclusion of Dr. Ribic's evidence, when he was being
12 re-examined, some documents that had been gathered
13 necessarily in haste for re-examination were put to him
14 but not distributed. That exercise is going to be
15 tidied up, as it must be, so that the documents are
16 formally produced.
17 We are, I have to say on this occasion,
18 grateful for the fact that we aren't sitting on Monday
19 morning, because it is going to enable us to do a
20 number of things that we would otherwise have had to do
21 either on Sunday or at some other time.
22 The parties are going to be able to discuss
23 the map on Monday morning, with a view to compromise or
24 significant compromise. We will also be able to
25 discuss the outstanding witnesses that the Court hasn't
1 been able to deal with today on Monday morning, so all
2 of those matters should be available for resolution on
3 Monday afternoon or Tuesday.
4 On Monday afternoon, there will be one very
5 short witness, and I propose to follow that by -- if
6 this is convenient to everyone -- the argument on dead
7 and unwilling. Then on Tuesday, if this is acceptable
8 to the Court, Mr. Elford can present his maps.
9 I understand that we were due to be sitting
10 in the small courtroom rather than this one. Two
11 points on that.
12 I think for the map exercise, the small
13 courtroom will be very inconvenient, and speaking
14 simply as counsel at this stage of the trial, when we
15 are more likely to be here in larger rather than
16 smaller numbers, this court is very much more
17 convenient. However, although I can't say exactly what
18 I know, I understand that there may be other
19 difficulties with this court.
20 Borrowing from what is said of mountains and
21 Mohammeds, may I venture the suggestion that furniture
22 is not immovable and it may be possible to construct
23 this court in a way that is more comfortable for the
24 Court than it may presently be, simply by using other
25 furniture, because it is inconvenient, certainly for
1 the map exercise, to use the small court.
2 JUDGE MAY: We'll make an inquiry about
4 [Trial Chamber confers]
5 JUDGE MAY: We'll be here on Monday and
6 Tuesday, and then we can review the position.
7 MR. NICE: Thank you very much.
8 I think that concludes all I have to raise
10 [Trial Chamber confers]
11 JUDGE MAY: Yes, Mr. Kovacic.
18 JUDGE MAY: The witness, anyway, yes.
19 MR. KOVACIC: [Interpretation] He made certain
20 statements to the police in Bosnia-Herzegovina. Then
21 he made statements when he came to a democratic and
22 free country, Australia. In those statements, he
23 denied what he had said. They were disclosed to us by
24 the Prosecution, but they were not entered into
25 evidence. We thought that thereby the whole matter had
1 been dealt with.
2 However, yesterday my learned friend raised
3 the matter, and we were given two statements, two
4 witnesses, whom they appear they wish to use in
5 connection with that unwilling witness whose name I
6 shouldn't mention, and they are two witnesses who were
7 first interviewed in January this year, that is, two or
8 three weeks ago, who were never on any of the lists of
9 potential witnesses. You made an order about that
10 earlier on, about witnesses who had not been announced
11 in advance.
12 And a third point which I think is the most
13 important one is that that is an attempt to introduce a
14 statement given to the investigator as direct evidence
15 in the case, and you have made a decision about that in
16 your Tulica decision, where you said that those
17 statements cannot be used as evidence.
18 If the Prosecutor wishes to bring those
19 witnesses, I think that according to the Rules, it is
20 absolutely too late because the Defence will not be
21 able to gather the necessary material to be able to
22 cross-examine them properly. And another point that is
23 very important, that this is multifold hearsay because
24 they would apparently be telling us -- or at least one
25 of them -- what this other potential witness may have
1 said or actually said, a witness that we can't bring to
2 court. I think that this is totally irrelevant, that
3 even if all these witnesses were to be examined, the
4 probative value of those statements or testimonies
5 would be so limited that it is not simply worth the
6 Trial Chamber's time to go into it.
7 That is our position. If the Prosecutor goes
8 on along those lines, of course, we will submit our
10 JUDGE MAY: Very well. We'll consider these
11 matters next week if they are raised.
12 We'll adjourn now. Next Monday, half past
14 --- Whereupon the hearing adjourned at
15 12.05 p.m., to be reconvened on
16 Monday, the 21st day of February, 2000,
17 at 2.30 p.m.