Tribunal Criminal Tribunal for the Former Yugoslavia

Page 666

1 Tuesday, 16th February, 1999

2 (Open session)

3 --- Upon commencing at 2.05 p.m.

4 JUDGE MAY: If the Registrar would call the

5 case.

6 THE REGISTRAR: Good afternoon, Your

7 Honours. Case number IT-95-14/2-PT the Prosecutor

8 versus Dario Kordic and Mario Cerkez.

9 JUDGE MAY: The appearances, please.

10 MR. NICE: Geoffrey Nice with Ken Scott on my

11 right, Rod Dixon on my left and Ms. Verhaag the case

12 manager for the Prosecution.

13 MR. SMITH: Turner Smith, Your Honour, for

14 the defendant Dario Kordic, with Dr. Turkovic on my

15 left, and then my colleague David Geneson and our

16 co-counsel Mitko Naumovski.

17 MR. KOVACIC: (Interpretation) good morning,

18 Your Honour. Appearance for Cerkez Defence is the

19 same, Bozidar Kovacic, attorney from Rijeka.

20 JUDGE MAY: May I be assured that the accused

21 can hear the proceedings a language which they

22 understand?

23 THE ACCUSED: Your Honours, thank you for

24 your interest as to whether we understand the

25 proceedings. Yes, we do understand in Croatian what is

Page 667

1 going on.

2 THE ACCUSED: I understand, thank you.

3 JUDGE MAY: Very well. Well, this hearing

4 has been listed to consider various motions which have

5 been entered, and as we came in, we were given a

6 proposed schedule. I don't know whose handiwork it

7 is. I expect Mr. Smith, although I don't know.

8 I think we had probably intended to follow

9 the programme as it's set out here. Have you got a

10 copy of this, Mr. Nice?

11 MR. NICE: Thank you, I have.

12 JUDGE MAY: I would have thought, in fact, it

13 might be easier to deal with all the jurisdictional

14 motions together, if the argument could be organised in

15 that way, with the Defence presenting their argument in

16 relation to all of them, Prosecutor replying, and then

17 we would move on to the form of the indictment, and

18 again, follow that proposed course of action with both

19 sides presenting all their argument together. I see

20 that in some cases that there will be no argument.

21 The only matter which is of concern is about

22 the time, and that is that very little time is being

23 left, according to this programme, to deal with the

24 motion about compliance which has been left to the

25 last, and that seems, to me, to be an important matter

Page 668

1 because it deals with the whole question of

2 disclosure. What I propose that we do when it comes to

3 that motion, is that we review the position as it is

4 today about disclosure, and then move on from there to

5 decide what can be done, and then decide what issues

6 there are for the Trial Chamber to resolve on

7 disclosure.

8 We'll begin with jurisdiction, and, Mr.

9 Smith, if you're going to address us first, I think we

10 would find it helpful to hear all the argument on

11 jurisdiction together on your various points, and then

12 we'll hear from the Prosecution.

13 Bear in mind, of course, that we have read

14 the motions. They are fairly voluminous, so we are

15 very much au fait with the argument. I would be

16 grateful if people would not repeat what's already

17 said.

18 There is a motion before the Chamber which

19 was filed, I think, yesterday, applying for more -- for

20 leave, rather, on behalf of the defence to file a reply

21 in support of jurisdictional motion number 2. Unless

22 the Prosecution wish to make any sort of objection to

23 that, it may be convenient for us to say that we are

24 prepared to grant leave and we've read the motion --

25 or, rather, the brief, I should say.

Page 669

1 Mr. Smith, then we'll hear you first on the

2 jurisdiction point and then hear anybody else for the

3 Defence and then call on the Prosecution.

4 MR. SMITH: Your Honour, with leave might I

5 request that I address jurisdictional motion number 2

6 for ten minutes and Dr. Turkovic address jurisdictional

7 motion number 3 for five minutes, and each of us

8 reserve five minutes for reply argument at the end of a

9 total of 25 minutes of argument by the Prosecution on

10 both motions. I'm perfectly happy to argue both at the

11 same time. We're have prepared each to argue different

12 motions on our side. If, howeve you need them all

13 argued by one counsel that can be accommodated.

14 JUDGE MAY: I'm sure that's not necessary.

15 Do it in whatever order you would, but let's hear all

16 your arguments first on jurisdiction and then we'll

17 hear the prosecution.

18 MR. SMITH: Indeed. Thank you, Your Honour.

19 We are indeed resting on briefs -- on jurisdictional

20 motion number 1 and 4, that obviously belies no lack of

21 confidence in the arguments we've raised there, but

22 there's an extremely limited amount of time for some

23 very complex arguments on a large number of them, and

24 we will felt it essential to pick and choose which

25 briefs we thought most would benefit, and where the

Page 670

1 Trial Chamber would most benefit from oral argument and

2 as a result have chosen jurisdictional motions 2 and

3 3.

4 If I may then start on jurisdictional motion

5 2. As Your Honours will know, we are arguing that,

6 first, the Laws and Customs of War under Article 3,

7 that language in the Statute are limited to offences

8 under its express provisions and under those in the

9 1907 Hague Convention and its regulations on which

10 Article 3 was based.

11 Article 3 does not cover, in our judgment,

12 Common Article 3 and the protocols of the Geneva

13 Convention.

14 THE INTERPRETER: Counsel, slow down,

15 please.

16 MR. SMITH: The remedy we are suggesting then

17 is that the counts listed in our motion be stricken, or

18 alternatively, that all references to the Geneva

19 Convention and protocols in those counts be stricken.

20 We believe this is a question solely of law and thus

21 can and must be decided now prior to trial.

22 Articles 2 and 3, our second argument, are,

23 in our judgment, limited to offences committed within

24 the context of an international armed conflict. The

25 scope of Articles 2 and 3 in this regard is also, in

Page 671

1 our judgment, a question of law. That should be

2 resolved prior to trial. Distinct from the application

3 of that scope to the facts in determining whether, in

4 fact, there is or is not an international armed

5 conflict, we're arguing here the scope issue.

6 The remedy, again, is striking the counts

7 outlined in our motion on the grounds that there is no

8 international armed conflict and no armed conflict at

9 all between Bosnian Muslim and Bosnian Croat

10 communities in the Lasva Valley region during much of

11 the period covered by the indictment, this remedy to be

12 granted now or the at such time as the Trial Chamber

13 later determines during or after trial upon examination

14 of the facts.

15 Let me then turn to the argument. Article 1

16 of the Statute gives the Tribunal power to prosecute

17 "In accordance with the provisions of the present

18 Statute." And the Secretary-General, in his report

19 states that under the principle of nullem crimen sine

20 lege, the Tribunal should only apply rules which are

21 "Beyond any doubt part of customary law." These, Your

22 Honour, are the linchpins of our argument.

23 Given these two clearly applicable premises,

24 we believe that the decision of the Appeals Chamber in

25 the Tadic case is in serious fundamental and widely

Page 672

1 acknowledged error for the reasons that we set out in

2 detail in our brief and in our reply brief.

3 In particular, its error lies in, number one,

4 concluding that Article 3 includes all violations of

5 International Humanitarian Law, not otherwise covered

6 by Articles 2, 4 and 5.

7 Secondly, that it is in error in -- because

8 of its unfounded conclusion, that it "Does not matter

9 whether the serious violation has occurred within the

10 context of an international or an internal armed

11 conflict." Tadic does, however, in our judgment,

12 correctly conclude that the scope of Article 2 is

13 limited to situations involving international armed

14 conflict.

15 The first issue I want to address, Your

16 Honours, is that this Trial Chamber is free to decide

17 the Article 3 issue. The Prosecutor has said, as you

18 will know, that the Tadic Appeal Chamber decision is

19 legally binding on the Trial Chamber. This, in our

20 judgment, is not so.

21 First, International Law courts are not

22 generally bound by precedents. Decisions are

23 considered for their persuasive effect but are not

24 legally binding.

25 Second, nothing in the Tribunal's Statute or

Page 673

1 in its Regulations indicates that there should be a

2 binding effect to Appeals Chamber decisions.

3 Third, the question whether the Appeal

4 Chamber decisions are legally binding on Trial

5 Chambers, other than the Trial Chamber in that case, is

6 a question that has not been resolved by the Appeals

7 Chamber itself.

8 Next, the Trial Chambers cited by the

9 Prosecutor as having respected or being bound, as they

10 say, by the appellant decision in Tadic, have not, in

11 fact, themselves, when you examine the opinions as we

12 do in our reply brief, consider themselves bound. They

13 have re-examined the decision.

14 Next, the Tribunal deals with complex and

15 sophisticated issues, many of them of first impression

16 and affecting individual liberty. The law on these

17 issues should not be prematurely frozen.

18 Next, each defendant has a right to full and

19 fair hearing on the law, and this argues strongly

20 against finding the Tadic Appeal Chamber decision

21 binding legally.

22 Next, the importance of the issues raised by

23 the Defence in this motion and the significance of the

24 errors committed, as we believe we have demonstrated by

25 the Tadic appeal decision, argues strongly in favour of

Page 674

1 this Trial Chamber refusing to follow that ruling.

2 Finally, the interests in judicial economy

3 are adequately protected, we believe, by the normal

4 rule of considering the persuasive effect of a prior

5 decision even by a higher tribunal in the international

6 context.

7 In short, this Trial Chamber is, in our

8 judgment, free and should feel free to consider our

9 arguments and re-examine the conclusions in Tadic in

10 light of the arguments we have made, many of which we

11 think are beyond the arguments made previously, and in

12 any case, go to the reasoning of the Tadic decision,

13 demonstrating why we believe the reasoning is

14 fallacious.

15 JUDGE MAY: But, Mr. Smith, consider the

16 practicalities of this submission of yours. It means,

17 doesn't it, that there would be no finality in much of

18 the work of the Tribunal, because if you're right and

19 every Trial Chamber can consider every question afresh,

20 it means that litigation could never be brought to an

21 end. It also means that there isn't any certainty for

22 those who practice here and those who are tried here.

23 MR. SMITH: Your Honour, if I may suggest, I

24 believe that the rule of a persuasive effect, properly

25 applied as it is in international tribunals, would lead

Page 675

1 to reasonable certainty. Over time as more cases come

2 through, people will develop a feel for where the Trial

3 Chambers are coming out and the appeals -- where the

4 Appeals Chamber is insisting, and a flexibility in the

5 early stages of the consideration of the very

6 complicated and very significant issues now being

7 raised really in litigation in many ways for the first

8 time since World War II, these need to be fully fleshed

9 out and fully argued in the early years of the

10 Tribunal's existence. And I think there will be

11 certainty, reasonable certainty, because Trial Chambers

12 are not lightly going to disregard the reasoning of the

13 Appeals Chamber or of other Trial Chambers, but the

14 ability to do so, at least until the Appeals Chamber

15 has spoken to the contrary, seems, to me, to be

16 essential to the operation of the Tribunal's justice

17 system at this early stage.

18 I have about used, I think, the ten minutes,

19 and if we are going to stay on schedule, as we must, if

20 we are going to end up able to argue all of the motions

21 we would like to, I will rest on brief as to the main

22 points in the argument saying only that we believe we

23 have demonstrated across the board and in depth the

24 difficulty and the illogic of the Appeals Chamber's

25 Tadic decision. We believe these issues are very

Page 676

1 serious because they import wholesale into Article 3

2 all the rest of International Humanitarian Law and make

3 it applicable as individual criminal liability against

4 defendants.

5 We do not believe that that squares with the

6 language which refers to language from the 1907

7 convention. We do not believe that it is consistent

8 with the intent of the Security Council, and we urge

9 Your Honours to look at the Celebeci opinions

10 discussion of the necessity for construing criminal

11 statues narrowly. And in favour of the defendant --

12 ambiguity and given the barrage of criticism of the

13 Appellant Chamber's decision here, we think it's

14 undeniable that there's ambiguity in Article 3 on this

15 matter.

16 Thank you, Your Honour, and Dr. Turkovic will

17 address jurisdictional motion number 2.

18 JUDGE MAY: Judge Bennouna would like to

19 raise a point.

20 MR. SMITH: Yes, Your Honour.

21 THE INTERPRETER: Microphone, please, Your

22 Honour.

23 JUDGE BENNOUNA: (Interpretation) I am going

24 to speak in French. Can you hear me? It is simply to,

25 I think, assist the Tribunal, as you yourself have

Page 677

1 proposed, to have a clearer idea of the jurisdiction,

2 which is very essential, as you have said, and we must

3 make progress in that area, and regarding which both

4 the doctrine and the practice, internationally, is

5 watching over what is happening here. You told us that

6 the basis is Article 1 regarding the jurisdiction of

7 the Tribunal, which says that the Tribunal has the

8 jurisdiction to try persons committing serious offences

9 on the territory of ex-Yugoslavia since 1991. And you

10 have added to the preparatory work the quotation from

11 the Secretary-General of the U.N. regarding the

12 principle of equality, and the principle of nullum

13 crimen sine lege.

14 Mr. Smith, would you agree that through

15 Article 1 and the preparatory work, this Tribunal is

16 applying not only the statute,and conventional law but also

17 international customary law?

18 MR. SMITH: Your Honour, I would articulate

19 it this way.

20 THE INTERPRETER: Microphone, counsel.

21 MR. SMITH: Your Honour, yes, I would

22 articulate it this way: That the Tribunal is applying

23 the language of this Tribunal Statute, Article 1, which

24 refers it then to the language of Articles 2, 3, 4 and

25 5. And it is limited in its application and

Page 678

1 interpretation of the language of the Statute,

2 referring now to "in accordance with the provisions of

3 the present Statute," in Article 1, it is limited in

4 its reading of the language of the charging Articles,

5 2, 3, 4 and 5, to the customary international law in

6 effect, we believe, at the time that the offences were

7 committed or the alleged offences were committed. In

8 any case, in effect the time the Statute was created.

9 Does that answer Your Honours question?

10 JUDGE BENNOUNA: (Interpretation) Not

11 quite. You say that Article 1 refers also to Articles

12 2, 3, 5 and so on, and it also refers to

13 international customary law as it existed at the time

14 the Statute was adopted. Have I understood you

15 correctly?

16 MR. SMITH: On the latter point, the

17 limitation to customary law as it existed at the time

18 of the offence, I am referring to the language in the

19 Secretary-General's report, which states that it is the

20 intent of the Security Council that when the Tribunal

21 applies the International Humanitarian Law which is

22 embodied in the language of Articles 2, 3 and 5, it is

23 limited in so doing to only applying that which was

24 customary international law at the time we believe when

25 the alleged offences were committed.

Page 679

1 Have I now succeeded in making myself clear?

2 JUDGE BENNOUNA: (Interpretation) This is

3 what I have understand from this clarification you have

4 made. At the time the offence was committed, the

5 Tribunal is authorised to apply positive international

6 law as regards the statutory provisions, and also

7 international customary law, such as it existed, at the

8 time the offences were committed. Is that so? Because

9 the Statute refers to international customary law.

10 This is a very important question and, in any event, I

11 wanted you to confirm this. But I was going to say

12 that this is only natural, because as an international

13 tribunal we are bound by international customary law

14 and by rules that are applied even beyond international

15 rules and the Statute.

16 MR. SMITH: Your Honour, what I am saying, I

17 believe, is that Your Honour is, as you say, bound by

18 and limited by customary international law, but you are

19 also bound initially by the language of the Statute

20 that creates the Tribunal, so that to the extent that

21 that language incorporates customary international law,

22 or is derived from the Geneva Convention in terms of

23 Article 2 or the 1907 Hague Convention in terms of

24 Article 3, to that extent this Tribunal is authorised

25 to apply customary international law.

Page 680

1 If the question is would the Tribunal be

2 authorised to apply customary international law in the

3 abstract, even if, let's assume for purposes of

4 argument, it could find no statutory basis in Articles

5 2, 3 or 5, I think I would argue no. You are bound

6 initially by the Statute which created the Tribunal and

7 by its language, but that that Statute incorporates

8 deliberately and by the drafters provisions from the

9 Geneva Convention from the 1907 Hague Convention. It

10 is fashioned on them. That's, I think, my argument.

11 JUDGE BENNOUNA: (Interpretation) Thank you.

12 MS. TURKOVIC: Your Honours, I will address

13 jurisdictional motion number 3. In her reply brief to

14 jurisdictional number 3, the Prosecutor did not advance

15 any argument to rebut the Defence position that mere

16 planning and preparation should not be punishable under

17 the Statute. Mere planning and preparation meaning

18 planning and preparation when the crime has not been

19 afterwards completed or at least attempted.

20 Instead, the Prosecutor completely confused

21 two concepts existing in criminal law. They are

22 complicity, which refers to ways in which persons may

23 participate in the commission of the offence, the roles

24 that parties to the crime may assume, and that of

25 preparation, which is one of the stages in the

Page 681

1 commission of the crime.

2 Throughout her reply brief the Prosecutor is

3 talking about complicity, more precisely, about aiding

4 and abetting, and even more precisely, about aiding and

5 abetting accomplished through prepatory acts when the

6 offence occurred thereafter.

7 The Defence does not deny and is actually

8 fully agreeing with the Prosecutor's assertions that

9 aiding and abetting, when it is performed in the form

10 of prepatory acts, is punishable, if other

11 prerequisites are fulfilled, prerequisites such as

12 mental state, completion of the offence or attempt of

13 the offence and others that we will discuss during the

14 main trial, because this is the initial interpretation.

15 In its jurisdictional motion number 3, the

16 Defence was only arguing that mere planning and

17 preparation of crimes listed in the Tribunal Statute is

18 neither punishable according to customary law nor

19 according to general principles of law, nor according

20 to the criminal law of former Yugoslavia.

21 I have a little handout. It would be easier

22 to follow what I will argue. If we can just give that

23 to the people, I believe. Thank you for the

24 assistance.

25 Your Honours, the Defence would like to draw

Page 682

1 your attention to the parts of the indictment where the

2 Prosecutor has charged the defendants not only with

3 aiding and abetting accomplished through prepatory

4 acts, but is charging them with planning and

5 preparation which is not connected to the completed

6 offence. Bear in mind that Prosecutor is alleging in

7 her reply brief that she is charging the defendants

8 only with participating in the planning and preparation

9 of the offences that have occurred thereafter.

10 What you do have in front of you is the

11 language that is coming from the indictment, and it

12 says in Count 1, paragraph 36, that is what you have in

13 front of you, third line says, "Dario Kordic caused,

14 planned, instigated, ordered or committed, or aided and

15 abetted the planning, preparation or execution of a

16 crime."

17 This language necessarily means that each of

18 these elements, causing, planning and so on, is

19 independent and that the Prosecutor is charging the

20 defendants with causing a crime, planning a crime,

21 instigating a crime, ordering a crime, committing a

22 crime, aiding and abetting a crime. The very same

23 language the Prosecutor uses in all Counts of the

24 indictment.

25 First of all, the Defence would like to say

Page 683

1 that it is utterly surprised that even after amending

2 the indictment the Prosecutor is still charging

3 causing a crime. There are no grounds whatsoever what

4 responsibility for mere causation. This is strict

5 liability standard, which is completely in odds with

6 mens rea requirement and standards of liability in

7 criminal law.

8 Now, let's go to the planning language, the

9 third sentence that you have. Dario Kordic planned a

10 crime. Let us concentrate for a moment on that. It is

11 obvious because of the use of comma and connection "or"

12 before the word "aiding and abetting" that the

13 Prosecutor is charging the defendants for planning,

14 regardless whether the offence was afterwards completed

15 or not. This permits charging planning as mere

16 preparation and, as the Defence has demonstrated in its

17 jurisdictional motion number 3, this is contrary to

18 customary international criminal law. This is contrary

19 to general principles of criminal law. And this is

20 contrary to the criminal law as existed in former

21 Yugoslavia or as it exist in the countries that became

22 to existence after the dissolution of the country. The

23 Prosecutor asserts in reply brief that in the present

24 case the accused are charged with participating in the

25 planning and preparation of offence that occurred

Page 684

1 thereafter. Sorry.

2 This assertion does not cure the fact that

3 Defence is complaining about.

4 First, the Defence will not know whether the

5 Prosecutor charged the defendant for preparation only

6 of completed offence until the Prosecutor will put all

7 the evidence in. How can we know that? And it is

8 obvious that the language on the indictment simply does

9 not do what the Prosecutor says. It does. Thus, the

10 word "planning" should be stricken.

11 There is a second use of the word "planning

12 and preparation." This is the fourth that you have on

13 that list. Notice that the connection "or" is used

14 before the word "execution," thus the defendants are

15 actually charged with aiding and abetting and planning,

16 aiding and abetting and preparation, aiding and

17 abetting and execution. The first two, if there is no

18 completed offence, or at least attempted offence, are

19 contrary, as we have already said, to customary law,

20 criminal customary law, general principles of criminal

21 law and criminal law as existed in former Yugoslavia or

22 as it is today.

23 The Prosecutor should be allowed to charge

24 only the third, the aiding and abetting in execution of

25 a crime. The words "planning and preparation" should

Page 685

1 be stricken out. By striking these words, the

2 Prosecutor will be still able to charge what she is

3 claiming that she is charging in the present

4 indictment, and that is aiding and abetting performed

5 through prepatory acts which contribute to execution of

6 a crime.

7 The Prosecutor will not be able to charge the

8 defendants with aiding and abetting and planning or

9 preparation when the offence thereafter was not

10 completed or at least was not attempted.

11 The result that we have now is completely

12 illogical, the result that we have in the indictment.

13 To allow Prosecutor to charge for aiding and abetting

14 and planning, if planning per se cannot be charged is

15 illogical, because the accomplice then is liable. We

16 know in theory the accomplice is liable in theory only

17 if principle offence has been committed or attempted.

18 And here we don't have principle offence.

19 To allow Prosecutor to charge for aiding and

20 abetting in preparation is even more illogical because

21 even in a present indictment preparation per se has not

22 been charged.

23 THE INTERPRETER: Please slow down.

24 MS. TURKOVIC: Okay. Thank you. To

25 summarise, the defence respectfully request the words

Page 686

1 "causing, planning, and planning and preparation" to

2 be stricken all the Counts of the indictment and then

3 the language in the indictment will read -- this is

4 the last thing that you see -- "instigated, ordered, or

5 committed or aided and abetted execution of a crime."

6 This way the indictment will charge what the Prosecutor

7 is claiming in his or her response brief to

8 jurisdictional motion number 3 that the indictment is

9 charging now, but actually it's not, and the indictment

10 will be logical and in accordance with the principles

11 of criminal law. Thank you.

12 JUDGE MAY: Judge Robinson.

13 JUDGE ROBINSON: What is the basis for saying

14 that under customary international law, planning an

15 offence is not an offence?

16 MS. TURKOVIC: If you have read the -- and I

17 suppose you did, as you did read the response brief by

18 the prosecutors, you could find there on several places

19 that they claim that planning and preparation was

20 actually punishable during the Second World War. If

21 you like, I have another handout where I can show that

22 actually that is not the truth. If I can find it; just

23 a second.

24 Is there someone to hand that out, so that we

25 can see what actually is going on?

Page 687

1 You see, if you look at the handout from the

2 Nuremberg charter, then you would see -- and I have

3 underlined for you -- "crimes against peace," and that

4 it was enacted that planning and preparation of a war

5 of aggression is criminalalised, can be punished. You

6 don't find that language either in war crimes or in

7 crimes against humanity. So this language of planning

8 and preparation is language of punishing, planning, and

9 preparation per se. And it exists just in crimes

10 against peace.

11 Further on, you have this last paragraph,

12 which is actually talking not about mere preparation

13 and planning, but is introducing the conspiracy into

14 the Nuremberg charter, and it was decided during the

15 trials then -- and the Prosecutor acknowledges that in

16 his reply brief -- that conspiracy referred only to

17 crimes against peace.

18 The Prosecutor is giving several examples

19 where he's citing the language of, presumably,

20 preparation in his response brief, and is telling that

21 because of that language, the Tribunal in fact was

22 punishing for preparatory acts. I must say that I was

23 really very happy when I saw their response in the

24 response brief, because I'm glad that we agree that

25 acts that they cite are preparatory acts. And I would

Page 688

1 say -- you know, it's very difficult to draw the line

2 between what is preparatory act and what is substantive

3 steps over the commission of the offence. Obviously

4 the judges during the Second -- that they were judging

5 the Second World War crimes thought that acts were

6 cited that were not preparatory acts but substantive

7 steps. To me they seem as preparatory acts the same as

8 they seem to the prosecutors. However, you see, at

9 that time they were thought to be substantive steps

10 toward the commission of the crime, and that's why they

11 were punished.

12 If you look at the ICC statute, you do not

13 find the language of planning or preparation there. If

14 you look in the national laws of many countries, you

15 would not find such language, that preparation or

16 planning is punishable per se. You can even find

17 countries in which it is expressly prohibited to punish

18 for preparation and planning per se. Why is that so?

19 Because for a long time that was punishable, like 50

20 years ago; it's the same as, for example, in the 18th

21 Century, when they decided they will want punish for

22 mere thoughts, some criminal statutes had express

23 prohibition of punishing for mere thoughts, because it

24 was punished for such a long time.

25 So you see, this is something that we have in

Page 689

1 criminal law for the past 50 years, and it was already

2 acknowledged during the trials, Nuremberg trials, that

3 we cannot punish for mere preparation. Thank you.

4 JUDGE MAY: Does anybody else want to say

5 anything for the Defence?

6 Very well, we'll call on the Prosecution. If

7 you could take the matter as briefly as possible,

8 Mr. Nice.

9 MR. NICE: Mr. Dixon will deal with the first

10 motion, and I'll deal with the second.

11 JUDGE MAY: Yes. Thank you.

12 MR. DIXON: Your Honours, in response to the

13 Defence contention that only the 1907 Hague regulations

14 are included in Article 3, we, the Prosecutors, submit

15 that it is well-established that since 1907, the body

16 of international humanitarian law has expanded

17 considerably. There were the Geneva Conventions of

18 1929 passed thereafter; it is also well known that in

19 1949, further Geneva Conventions were passed, and that

20 within those conventions which were applicable to only

21 international armed conflicts, there was a provision,

22 Article 3, common to all of the conventions, which is

23 also applicable to noninternational armed conflict.

24 It is accepted that the rules contained in

25 Common Article 3 apply to all conflicts. The

Page 690

1 International Court of Justice has declared that these

2 prohibitions represent elementary considerations of

3 humanity which apply to all conflicts, irrespective of

4 whether those are international or internal.

5 After the Geneva Conventions in 1977, two

6 protocols additional to those conventions were passed,

7 one applicable to international armed conflict and the

8 other, additional protocol 2, applicable to internal

9 armed conflicts. The Prosecutor submits that all of

10 these rules of international humanitarian law are

11 covered under the laws and customs of war as provided

12 for in Article 3 of the statute. So not only the rules

13 of 1907.

14 The only exception is the grave breach

15 provisions of the 1949 Geneva Conventions, which the

16 Tribunal is specifically empowered to prosecute under

17 Article 2 of the statute. The basis for this is

18 threefold, in the Prosecutor's view. Firstly, the

19 Tribunal is mandated to prosecute all serious

20 violations of international humanitarian law; that's in

21 terms of Article 1 of the statute. And the Tribunal

22 can give effect to this mandate by incorporating all

23 serious violations of international humanitarian law

24 within Article 3.

25 Secondly, the wording of Article 3 refers to

Page 691

1 the laws and customs of war, and the list is not

2 exhaustive. It reads "including but not limited to"

3 the acts that are listed thereunder.

4 Thirdly, statements by prominent members of

5 the Security Council, when the statute was passed and

6 after the statute was passed, show that it was the

7 intention of the Security Council to include more than

8 simply the provisions that were listed in the statute.

9 And they specifically mentioned Common Article 3, and

10 treaties and agreements that were binding on the

11 parties to the conflict.

12 In addition, the Appeals Chamber of the

13 Tribunal has held that Article 3 does include all

14 serious violations of international humanitarian law,

15 and this decision has been followed by Trial Chambers

16 before the Yugoslavia Tribunal and before the Rwanda

17 Tribunal. And we would invite Your Honours to follow

18 the decision of the Appeals Chamber, and wish to submit

19 that if one of the main functions of the Appeals

20 Chamber is to ensure consistency and certainty and

21 finality on the same issues, with respect to the

22 jurisprudence and the practice of the Tribunals, that

23 this can only be achieved through the Tribunal giving

24 precedential effect to the decisions of the Appeals

25 Chamber.

Page 692

1 The Appeals Chamber held that Common Article

2 3 and the provisions concerning attacks in additional

3 protocol 1 and 2, those considering unlawful attacks on

4 civilians and civilian objects, these are the

5 particular provisions that are charged in the current

6 indictment. The Appeals Chamber held that those

7 provisions are specifically included in Article 3 of

8 our statute, because they are part of customary

9 international law for both conflicts at the time that

10 the offences were committed, and also they attract

11 individual criminal responsibility. And in any event,

12 those treaties are binding on the parties in the former

13 Yugoslavia.

14 So for these reasons, we submit that the

15 Defence's motion should be rejected and that the

16 charges that are brought under Article 3 of the statute

17 in the indictment should remain as such.

18 Thank you.

19 MR. NICE: As to jurisdictional motion 3, the

20 motion on planning, we argue that it is

21 well-established as an element of international

22 humanitarian law already. We cite authority. But the

23 Court will know that at Nuremberg, the charter did not

24 specifically refer to planning, although there were

25 convictions in respect of those involved in planning,

Page 693

1 albeit of completed offences. And the Tribunal will

2 know further that the control council law number 10,

3 the charter for the American tribunal for subsequent

4 trials and the French Penal Code dealing with

5 subsequent trials to which we refer made specific

6 allowance for planning, either using that word or

7 associated or similar words.

8 Our statute sets out quite specifically the

9 very terms that have been used in charging these

10 defendants. And the Tribunal will know that Trial

11 Chambers both here and in Rwanda -- which of course

12 have only persuasive significance -- but nevertheless

13 the Chamber should know that they have indicated the

14 wide range of potential fact situations covered by this

15 Article, paragraph 8 of our response.

16 The position is that the opening clause of

17 Article 7(1) describes a wide range of potential

18 involvements, any of which in the alternative would be

19 sufficient. And there is no reason at this stage not

20 to leave the indictment exactly the way that it is, it

21 ultimately being, of course, as always, a mixed

22 question of fact and law which if any allegations are

23 made good to the usual high standard.

24 JUDGE MAY: Thank you.

25 Yes.

Page 694

1 MR. SMITH: Your Honour, in reply, a great

2 majority of the points made by the Prosecutor on

3 argument are already dealt with at some length in our

4 brief. I will pick only several to respond to and to

5 discuss.

6 First, regarding the persuasive effect of the

7 Tadic opinion, I would note that the Prosecutor has

8 said in their brief that that decision was a unanimous

9 decision, but in fact there's a dissent by Judge Lee on

10 both of the issues we raise. And he dissents on both

11 of them, although he finds an international armed

12 conflict. We refer to this at page 25 of our brief.

13 Second, as to the Security Council

14 statements, they are of course post hoc. And as

15 indicated in our brief and by commentators, there was

16 no one that could have objected, the way the matter

17 came up at the time. The two decisions cited by the

18 Prosecutor, I urge you to look at carefully: The Corfu

19 decision and the Namibia decision. Neither one of

20 those, in our judgment, stands for the proposition

21 asserted that the post hoc legislative history of a

22 Security Council resolution is persuasive or should be

23 considered. The Corfu decision is an entirely

24 different context, dealing with letters, accepting

25 jurisdiction by the countries involved in litigation.

Page 695

1 The Namibia case says nothing about

2 resolutions or language after the Security Council has

3 acted, but instead speaks only in general terms about

4 aids to interpretation, and speaks about language

5 before adoption.

6 Finally, on the question of the Yugoslav

7 treaties, Your Honour, I would direct your attention to

8 page 39 of our opening brief, where we deal with the

9 question of whether there are Yugoslavia treaties

10 binding in this situation. And we offer three reasons

11 why there are not, the most compelling of which, in my

12 judgment, is that the matters brought in to Yugoslav

13 law, protocol 2, protocol 1, the Geneva Conventions,

14 are not self-executing, and are not made binding on

15 individuals under Yugoslav law.

16 Thank you, Your Honour.

17 MS. TURKOVIC: If I could maybe explain this

18 past point, explain since I'm coming from former

19 Yugoslavia. So this is maybe more clear to me then to

20 the people that operate here.

21 You see, the constitution of former

22 Yugoslavia, the treaties can be applied directly, but

23 of course to apply the treaty directly it has to be

24 self-executing. In the Protocol 1, Protocol 2, Geneva

25 Conventions, self-executive are only grave breaches.

Page 696

1 So whatever you find in these treaties could be applied

2 in Yugoslavia only if a special provision in criminal

3 code has been provided. That's it.

4 Let me address the issues that have been

5 raised in connectin to--

6 THE INTERPRETER: We ask counsel to slow

7 down, please.

8 MS. TURKOVIC: The issues that have been

9 raised in connection with jurisdictional motion number

10 3, we have already addressed the issue of the Nuremberg

11 Charter, and I would just like to add the language that

12 is cited by the Prosecutor is the language of certain

13 acts that could be preparatory acts and not necessarily

14 need be preparatory acts, the language from the

15 Nuremberg court.

16 In Nuremberg, tribunals never said that these

17 acts they cited are preparatory acts and that they are

18 punishing for preparatory acts. They specifically said

19 that preparatory acts can be punished only in

20 connection with the crimes against peace. So the only

21 conclusion that we can draw from that, knowing criminal

22 law, is that they were considered to present --

23 represent a substantive step towards the commission of

24 the crime and that's why these examples that they have

25 given were punished the at that time.

Page 697

1 Now, as regarding the control council

2 number -- council law number 10, again, in these

3 control council law number 10, Article 2, paragraph 1

4 states specifically that planning and preparation of a

5 crime against peace can be punished only if it is done

6 as a crime against peace.

7 Article 2 paragraph 2 though, says that it is

8 possible to punish for acts that were connected with

9 plans or enterprises involving its commission. So from

10 that you can infer that according to control council

11 law number 2, maybe planning was punishable, but

12 enterprises involving its commission that doesn't say

13 that is preparation.

14 Furthermore, these decisions, control council

15 law number 10, were heavily criticised after that, and

16 it was said that they are contradicting basic

17 principles of criminal responsibility.

18 THE INTERPRETER: Please slow down.

19 MS. TURKOVIC: Sorry. And you can find that

20 and read that in Basione's treatise.

21 Furthermore, it was by -- it was in cases

22 cited, and this is justice case Judge Blair cited and

23 said that these cases that were decided according to

24 control council law number 10, did not purport to

25 establish by legislative act any new crimes of

Page 698

1 international applicability, and if you read literature

2 you will find that this control council law number 10

3 is considered to not constitute a valid international

4 precedent because it was considered as a national court

5 of Germany, not international court that was deciding

6 upon these cases.

7 Then French, the Prosecutor is citing Aritcle

8 60 of the French old Court Penal. I must say they

9 start to cite from the middle of the sentence omitting

10 the beginning of the sentence and the beginning of the

11 sentence is really important.

12 The beginning says, "Has wittingly aided or

13 assisted the author or authors of the crime or offence

14 in any act preparatory to," and so on. So what is this

15 Article talking about? It's talking about complicity.

16 It's not talking about mere preparation and mere

17 planning. So this is, again, not a good example.

18 Then they're giving the example from the law

19 reports of the trials of war criminals, volume 15, page

20 49. The title of the whole section is "Rules Relating

21 to the Complicity". So whatever is stated there is

22 related to complicity. It's not related to mere

23 preparation or to mere planning as a preparatory act.

24 I already said that the ICC Statute you

25 cannot find that language. At the beginning it was

Page 699

1 there under the influence of the language that we find

2 in the present Statute, but then it was taken out

3 because it was seen that actually doesn't make sense

4 and that it is not in accordance with principles of

5 criminal law.

6 This language from Article 7, it is indeed

7 the same as the language in the indictment, but that

8 doesn't mean that this language is not in contradiction

9 to what we find in customary law, what we find in

10 criminal law. This language actually is completely

11 illogical.

12 As I have shown to you, there is nothing that

13 says that mere preparation is penalised in this

14 language. Nothing. But it says that aiding and

15 abetting in preparation is penalised. How that could

16 be? This is contrary to everything you find in

17 criminal law.

18 Unfortunately, it seems to the Defence that

19 too often this Statute was drafted by people who were

20 real great experts in International Humanitarian Law

21 but sometimes lacked enough knowledge of criminal law,

22 so sometimes we are getting bad results if we are

23 watching that from the perspective of the criminal

24 law.

25 JUDGE MAY: Judge Bennouna.

Page 700

1 JUDGE BENNOUNA: (Interpretation) I have a

2 question for Madam Turkovic. First of all, I note that

3 there is a certain contradiction with what Mr. Smith

4 said a moment ago, because you're telling us that

5 regardless of the provisions of the Statute, we should

6 go back to customary law. That is what I understand

7 from your statement. So Article 7 should be read in

8 the light of customary law, and that the whole Statute

9 should be read in the light of customary law.

10 My question is as follows -- you say that

11 those who drafted the statue are not sufficiently

12 familiar with criminal law. My question is: Don't you

13 think that there is a specific aspect of the

14 international humanitarian law within criminal law or

15 penal law, and that normally, and that there is a great

16 specificity when we talk about crimes against peace and

17 security of mankind, and is that not the reason that we

18 talk about planning, instigating, commission, et

19 cetera, of that type of crimes, which, as you know, are

20 crimes committed on a large scale and which require

21 certain means which are not the same means used as in

22 regular crimes? So I'm talking about crimes against

23 peace and security of mankind.

24 MS. TURKOVIC: First, I would like to address

25 the first remark that you said that Mr. Smith and I are

Page 701

1 a little bit contradicting ourselves. I don't see that

2 we are making any contradictory statements. Mr. Smith

3 said that the Statute has to be interpreted, so

4 whatever we find in the Statute has to be interpreted

5 in light of the customary International Law and this is

6 exactly what I said, you know, Article 7 has to be

7 interpreted in the light of the customary International

8 Law.

9 Then you see people who are dealing -- I

10 don't want to go into it, actually, but criminal law

11 has lots of very specific theories that are very, very

12 sophisticated, especially if you're going into the

13 civil law, criminal law, existing in the civil law

14 countries.

15 It might be well that people are well versed

16 in what crimes against peace are, what crimes against

17 humanity are, not necessarily meaning that they really

18 know in each detail that preparation is punishable,

19 what aiding and abetting in Germany and in France and I

20 don't know where means, and how to conciliate all of

21 that.

22 I know that all these crimes are very

23 complicated and I believe that drafters of the

24 Nuremberg Charter and the ICC Statue had that in mind,

25 but anyhow did not draft these documents in terms that

Page 702

1 planning of war crimes or planning of crimes against,

2 you know, whatever, is punishable, and I think that

3 they had deeply thought about that, especially if we

4 see that the language first was used in the ICC Statute

5 and then it went out. Thank you.

6 JUDGE MAY: Thank you. We now move on to the

7 motions in relation to the form of the indictment, and

8 I see Mr. Smith has kindly presented an agenda. Again,

9 as far as who presents the argument is concerned,

10 that's a matter for you, but what I invite you to do is

11 to present all the Defence argument together and then

12 we'll call upon the Prosecution.

13 But before you do, there's one matter for

14 Mr. Kovacic. There is a motion on behalf of your

15 client asking for a bill of particulars in relation to

16 the indictment, and I wondered whether you wanted to

17 address us on that at some stage this afternoon, in

18 which case this -- during the course of this argument

19 it might be a suitable stage.

20 MR. KOVACIC: (Interpretation) Mr. President,

21 yes, perhaps I could do that then, but Mr. Kordic's

22 defence will also be referring to their motion

23 regarding the vagueness of the indictment, and since my

24 motion for a bill of particulars relates to the same

25 area, perhaps we could share or, rather, divide that

Page 703

1 section into two parts when I could argue my motion for

2 a bill of particulars.

3 JUDGE MAY: It might be most convenient then,

4 when you decide you want to join in, just indicate or

5 at the end, whichever, when the other defence advocates

6 have finished, but it may be convenient to deal with it

7 anyway.

8 MR. KOVACIC: (Interpretation) may I join in,

9 if I may be permitted to choose, after colleague

10 Geneson, then I should like to add on to his argument

11 my own submissions.

12 JUDGE MAY: Very well. Yes.

13 MR. SMITH: Thank you, Your Honour. We will

14 argue these motions in the following fashion: I will

15 argue the multiple charging matter first, Mr. Geneson

16 will argue the vagueness matter second, and Mr. Kovacic

17 will join that argument. Then Mr. Geneson will argue

18 the 73 motion, form number 3 after that, and then I

19 will finish by arguing a motion number 4 and the

20 failure to allege nexus to international armed

21 conflict.

22 We will rest on our briefs, as the schedule

23 indicates, on form of the indictment motion number 5

24 dealing with the failure to plead under all elements

25 under Article 2(d), and if I may put a chart up before

Page 704

1 I commence, Your Honour, and if I may ask that these

2 materials be passed out, I have three copies for the

3 tribunal and one for the Prosecutor I would appreciate

4 it.

5 Your Honour, motion for the form of the

6 indictment number 1 deals with the Prosecutor's

7 multiple charging of the same offences in the

8 indictment. The remedy we request is that the

9 indictment be dismissed as a whole, or in the

10 alternative, that the Prosecutor be limited to charging

11 under Article section -- Article 5 section (h) of the

12 Tribunal Statute dealing with persecution, and then

13 there are additional combinations of strikings of

14 provisions in the indictment in various combinations

15 laid out in our brief that result from the logic of the

16 arguments, and if Your Honours agree with various parts

17 of the arguments then you will necessarily, I think,

18 come to the conclusion that the reliefs requested there

19 are appropriate.

20 Let me start then by saying that criminal

21 systems worldwide have developed rules against charging

22 the same offence in multiple ways. They have done this

23 because they have found multiple charging to be

24 fundamentally unfair. There are, and we have referred

25 to them in our briefs, common-law concepts of

Page 705

1 multiplicity and lesser included offence. There are

2 civil law concepts of imperfect concurrence, and the

3 three types we have outlined in our brief.

4 The policies which lay behind these

5 provisions and which have driven their development by

6 judges over the years are also set out in our brief,

7 and they involve, first, justice, the protecting the

8 accused from the obvious prejudice that we have

9 articulated there of defending against multiple charges

10 for the same offence.

11 Secondly, a prevention of the abuse and

12 discretion by Prosecutors, Prosecutors when charging

13 have a tremendous scope of power available at their

14 fingertips and the Court is the proper vehicle and the

15 proper institution for ensuring that the Prosecutor

16 pleads wisely and properly under the rules, time

17 honoured traditional rules that have been developed

18 around the world.

19 And thirdly, a judicial economy and

20 efficiency, again in this case we are faced with both

21 Your Honours and the Defence a multiplicity of Counts,

22 each having separate elements, each having various

23 villages, various locations, and all of the elements of

24 every Count at every location have got to be proved by

25 the Prosecutor the way he has pled the case beyond a

Page 706

1 reasonable doubt before a conviction can take place on

2 any one. And we have indicated in our brief the ways

3 in which you can have difficulties sorting out what has

4 actually been proven when faced with a massive matrix

5 of this sort. And the Defence, of course, has to

6 defend every point.

7 Let me then establish the fact that there is

8 multiple charging here. And I urge Your Honours, lest

9 there be any doubt, to see how it is illustrated first

10 5 (h), as we have argued, overlaps and is charged

11 through paragraph 37 of the amended indictment,

12 overlaps every other charge, counts 1 and 2 overlap

13 every other charge in the indictment. And we have

14 demonstrated that on Table 1 to our brief, and it is

15 further demonstrated in this chart that I have put up

16 in front of Your Honours. The left-hand side of the

17 chart, which I'm sure you can't read from that

18 distance, shows the elements of paragraph 37 which lays

19 out the components of the persecution charge. And each

20 one is given a different colour.

21 As you will see then, in the paragraphs

22 charging all of the other indictments, and they are

23 laid out to the right, each one of those elements of

24 the charge of persecution under 5 (h) is re-charged

25 effectively under one of the other -- one or more of

Page 707

1 the other indictments, and the colour matching

2 indicates it, and so that you can read it. I have

3 given you a handout which for each color shows you the

4 paragraph under 37 and then shows you where in each

5 other part of the Count, each other Count that matter

6 is double, sometimes triple charged.

7 Secondly, in addition to the 5 (h) and

8 everything else overlap, there is overlap as we have

9 indicated in our brief among and between Articles --

10 charging under Articles 2, 3 and 5. That will be

11 obvious when you look at the amended complaint, because

12 you will have one description and then you will have,

13 essentially, the same acts charged under both Article 2

14 and Article 3 or whatever.

15 Those relationships are illustrated in Table

16 2 to our brief. So having dealt with the question of

17 whether there is multiple charging, let you us now go

18 to the question again of: Is this Trial Chamber free

19 to consider this issue? The answer, I believe, is:

20 Yes. There is no Appeals Chamber decision on the rules

21 involving multiple charging. There is a

22 Kupreskic decision, which we believe and our brief

23 supports our view of the overlapping and improper

24 multiple charging. Under that Kupreskic case the

25 Prosecutor has the burden of proof. That's important

Page 708

1 to remember. The Prosecutor has the burden of proof to

2 show that as to each offence, potentially multiply

3 charged there are both differed elements and different

4 interests. And when you look at the Prosecutor's reply

5 brief, I think you will see that while they say there

6 are both different elements and different interests,

7 when you examine the interests carefully, they are

8 generally a restatement of one of the elements as a

9 practical matter.

10 Now, let me summarise by saying it is the

11 Defence's assertion that this is essentially a Section

12 5 (h) case as charged. By "as charged" I mean when you

13 look at paragraph 37, which is then re-charged in all

14 of the other Counts, so that they start with paragraph

15 37, and the sense that they have that there was a

16 campaign of persecution and then they list the

17 components, and then they double charge all the

18 components once they have listed them, and it doesn't

19 purport to be including but not excluding others. That

20 list in paragraph 37 says here it is. Here's what we

21 think persecution consists of in this case.

22 So, in short, as charged, this is a 5 (h)

23 case, and then they simply added everything else on in

24 overlays of charging.

25 We believe that, as I indicated, this results

Page 709

1 in a massive matrix, that this Court and the Defence is

2 faced with dealing with. We believe that in effect

3 this case has been radically overcomplicated. This is

4 a 5 (h) case. All of the indictment, except 5 (h),

5 should be stricken. It's all duplicative. This is

6 fairer to the defendant, it is easier for the Court.

7 And, finally, the Prosecutor can put in every

8 bit of evidence that he wants to put in in the 5 (h)

9 charge, because that charge, the elements of that

10 charge are what overlap in all of the other cases, all

11 of the other Counts. So it's all in his 5 (h) charge.

12 And he can make his case there.

13 If it turns out that he cannot prove, as we

14 believe he will not be able to, a 5 (h) case, then he

15 may at that time, as is traditionally done in the

16 common law and under the relevant doctrines in the

17 civil law, assert that he has, however, proved certain

18 things that are lesser included offences. In that way

19 we do not all deal with all of the matrix, we deal with

20 the real case and we deal with any additional elements

21 to be independently argued if the Prosecutor proves

22 them, and if he is not able, as we think he will not be

23 able to do, to make out a 5 (h) case of persecution.

24 Thank you, Your Honour.

25 JUDGE ROBINSON: Mr. Smith, I have two

Page 710

1 questions. The first, you say that the Kupreskic test

2 calls for different interests and different elements,

3 and I think you made a point that they are cumulative,

4 but you argue that if one looks at the indictment, the

5 interests are a mere restatement of one of the

6 elements. I would like you to illustrate that.

7 Secondly, you didn't refer to the rule under

8 the Tribunal, the Akayesu case, which sets up roughly

9 the same kind of test as Kupreskic, but in the

10 alternative.

11 Would you like to comment on that?

12 MR. SMITH: Let me take the last one first,

13 as I am still looking to find you a good illustration

14 on your first point, Your Honour.

15 We believe, for the reasons we have stated in

16 our brief, that the Akayesu test is not consistent with

17 the law relating to common law and civil law on this

18 point by allowing either the one or the other to be

19 different. It is an outlyer, if you like, as to the

20 present law and the perceived wisdom on these matters.

21 And the third element in the Akayesu test, to

22 allow the Prosecutor to describe the conduct as a

23 reason or making a charge seems to us wholly

24 inappropriate. Maybe the best word to use.

25 I can either try to take a moment now and

Page 711

1 find you an example or Mr. Geneson can argue and I can

2 come back to it, whichever Your Honours prefer. It's a

3 matter of focusing on the right part of the brief,

4 looking at the right sentence and finding the right

5 illustration.

6 JUDGE ROBINSON: I am quite satisfied to have

7 you come back to it.

8 MR. SMITH: Thank you, Your Honour.

9 JUDGE MAY: Yes, Mr. Geneson.

10 MR. GENESON: Thank you, Your Honour. I am

11 going to do my best to not retread the same ground that

12 we have enumerated in our filings, but I think it's

13 important to remind the Tribunal that the

14 Secretary-General's report prohibits charging based on

15 mere association. Contrary to the position the

16 Prosecutor has taken, the Nuremburg Tribunal is not the

17 basis for the law of this Tribunal and mere membership

18 and association in a political party is not a vehicle

19 through charging. There is in fact individual

20 liability, and that's what the Secretary-General's

21 report speaks to.

22 The indictment in its current form

23 essentially lays out what one could describe as status

24 charging. In paragraphs 24, 25, 26, 27, I may be wrong

25 on one of those, but I believe it is in that group of

Page 712

1 paragraphs, there is a pejorative description of a

2 certain political organisation in Bosnia with an

3 explication that the defendant, Kordic, was a member

4 and a senior officer in that organisation over a period

5 of time.

6 Later in the indictment various generic

7 descriptions of bad conduct are enumerated. The basis

8 for all the intervening charges are a crossover of some

9 generic bad conduct and membership or relation to that

10 organisation. That is impermissible on its face. But,

11 worse, the actual charging language provides no

12 concise, specific statement of facts upon which the

13 defendant can defend himself.

14 Let me note specifically, and I'll pick Count

15 7 through 13, the charging language. I would note

16 that, as explained by Dr. Turkovic, and as agreed to by

17 the Prosecutor, I suspect they will not disagree that

18 each one of the itemised, alleged violative language

19 here are "ors," they are not conjunctive. The

20 Prosecution, I suggest would never claim that it has to

21 prove all these things conjunctively, so I'll add the

22 word "or" just to make it clear and for emphasis. But

23 tracking paragraph 42, we have from about January, 1993

24 to approximately October, 1993, that's a ten-month

25 period, Dario Kordic, together with, and I want to

Page 713

1 emphasise that language, together with members of the

2 HCHB or the HRHB or the HVO and/or their leaders or

3 armed forces or agents, caused or planned or instigated

4 or ordered or committed or aided and abetted the

5 planning or the preparation or the execution of murders

6 or wilful killings or the wilful causing and infliction

7 of serious injury or great suffering to body and health

8 or physical or mental suffering or inhumane acts, or

9 inhumane treatment upon and against a generic group

10 called Bosnian Muslims in the following 12 towns.

11 I would suggest, Your Honour, that based on

12 that charging language no one in this courtroom, except

13 maybe the Prosecution, knows who the victim or the

14 victim was, victims or victim was, just a generic

15 group, whether they were killed, whether they were

16 seriously injured, whether they suffered greatly,

17 whether they had physical or mental, inhumane treatment

18 inflicted on them, or what kind of treatment. Where

19 those particular events happened, again, we don't know,

20 except maybe in one of 12 towns, when during that

21 ten-month period they happened, who caused it, who

22 instigated it, who ordered it, who committed it, or who

23 aided and abetted it. Within a range of, if you look

24 at the description of the people involved, maybe

25 thousands of people, because it includes armed forces

Page 714

1 and agents.

2 How it was done and other than the fact that

3 Dario Kordic was together with one or more of these

4 people, unnamed people, in this same organisation or

5 organisations. How Dario Kordic was involved in any of

6 these acts, it is pure status charging. We don't know

7 what the crime was, except in a very generic,

8 unspecified way. We don't know who was hurt, how they

9 were hurt, by whom they were hurt, but Dario Kordic was

10 together with the violator.

11 Now, if you look at the indictment, it's very

12 plain what's missing, and that's that concise statement

13 of specific facts as to what happened.

14 When I first appeared before this Tribunal

15 about a month ago, I mentioned something. I'll just

16 repeat it again, not to belabour the point. Mr. Scott

17 and I come from a similar background. We used to be

18 U.S. Federal Prosecutors for many years, so I can say

19 that I have drafted hundreds of indictments and

20 probably reviewed many more for other young

21 Prosecutors. And when I read this, there is something

22 that's very, very obvious. It sort of leaps out what's

23 missing. That's what we call the "to wit" clause or

24 the "in that" clause if you don't like the term "to

25 wit." And what that means, very, very specifically, is

Page 715

1 that concise statement of fact. When you charge an

2 individual in a criminal indictment, you say that on or

3 about such and such a date John Doe --

4 THE INTERPRETER: Counsel, slow down,

5 please.

6 MR. GENESON: I'm sorry. On or about such

7 and such a date, John Doe violated a statute by

8 causing, aiding and abetting, instigating specific

9 criminal conduct, and then you say: To wit, John Doe

10 did on such and such a day cause the following people

11 or people to, for example, go get five pounds of

12 plastic explosive from the stocks at this location, go

13 to that town and blow up that building. So the

14 defendant knows what it is that he supposedly did.

15 Else he can't answer the charges. That's what's

16 missing from all these charges. We have an allegedly

17 bad organisation, in fact just a political

18 organisation, generic bad events, and then a crossover,

19 together with some unknown, undefined massive potential

20 group of people. Dario Kordic somehow is related to

21 those events, with no specificity.

22 I would just mention one other issue that

23 arose in the pleadings that the Prosecution was kind

24 enough to respond to, and that has to do with the

25 definition of persecution. The Prosecution seems to

Page 716

1 suggest that it can take persecution and expand it

2 around any law that was discriminatory in nature, just

3 because there was a conflict. I would suggest the

4 Court and the Prosecution is quite familiar with many

5 laws that are discriminatory in nature. Most malum

6 prohibitum laws are that.

7 An example -- and an extreme example, but one

8 that's typical -- is in the U.S., and in many other

9 countries, airline pilots are prohibited from being

10 commercial airline pilots after the age of 60.

11 Undoubtedly many of them are very skilled and probably

12 have 30 years' experience, and shouldn't be prevented

13 from continuing to be the captains of 747s. But they

14 are; that's a law.

15 To use an extreme example, if you took the

16 Prosecution's view of the world, should there be a

17 conflict in which the U.S. is involved, arguably,

18 senior airline pilots who are over 60 are a protected

19 class who are being discriminated against. A

20 remarkable suggestion.

21 Now, what is the reality of this? The

22 International Criminal Court Conference this summer

23 basically laid it out: There is no predicate for just

24 any discriminatory law or regulation being the basis of

25 persecution; it must be tied to other criminal acts

Page 717

1 which are specifically prohibited under international

2 criminal law. Not what the Prosecution says, but it

3 must be tied -- you cannot create a generic environment

4 of any discriminatory law becomes a vehicle for a

5 persecution charge. Thank you.

6 JUDGE MAY: Thank you, Mr. Geneson.

7 We'll adjourn now. We'll continue --

8 perhaps, Mr. Kovacevic, you would like to begin at

9 4.00.

10 --- Recess taken at 3.35 p.m.

11 --- On resuming at 4.00 p.m.

12 JUDGE MAY: Yes Mr. Kovacic.

13 MR. KOVACIC: (Interpretation) Mr. President,

14 I will try to be brief. We are very short of time.

15 First of all, I would like to say that as regards the

16 vagueness of the indictment, I agree with what my

17 colleague has said. Our standpoints are very similar,

18 so I think I can shorten what I was planning to say.

19 But I would like to draw attention to some points.

20 First of all, if we look at the sources of

21 the law or what we may set up for ourselves as the

22 sources, we have to bear in mind three things. The

23 first of these is that one of the fundamental

24 principles in all penal procedures, in all national

25 jurisdictions is that the accused has the right to be

Page 718

1 informed in detail of the relative elements of the

2 indictment, and by this the legislators usually specify

3 time, place, victims, perpetrators or the role of the

4 accused in the commission of crimes. This is the

5 foundation which all of us always have in mind, and we

6 know that we must have indictments which have to

7 contain information about these elements, otherwise we

8 do not know what we are defending against.

9 Of course, I need not underline that the ICTY

10 Statute in Articles 21, 24(a) and 18(4) has adopted

11 this principle consistently, and this is quite precise

12 and quite clear. And it says quite clearly that the

13 accused has to be informed immediately and in detail of

14 the nature and the causes of the charges alleged

15 against him. The indictment has to contain a precise

16 statement of facts and of the crimes with which the

17 accused is charged and so on and so forth.

18 So the question is how these criteria are to

19 be interpreted in practice, and how the definitions are

20 approached by various people. This is all stated in

21 the submission and the definitions in the International

22 Convention on Human and Civil Rights, and the European

23 Convention on Civil Rights are also very precise and

24 have provisions on the preciseness of the indictment

25 and the details that the accused has a right to be

Page 719

1 informed of through the indictment.

2 I think that this indictment has a number of

3 omissions, and in my opinion it reduces to a

4 considerable extent the possibility of preparing a

5 relevant and valid defence by the accused, not the

6 least because the indictment, in most of the counts, is

7 so broad and it refers to a very long period of time,

8 so that the Defence has to deal with an enormous number

9 of details which are not always important in order to

10 understand what the indictment is referring to or

11 perhaps not referring to in a certain count.

12 I think this puts the Defence in a position

13 where it is forced a priori to deal with a very broad

14 range of facts, and when the Prosecution presents its

15 case, then we may find that they are, in fact,

16 referring to something else.

17 So I will not repeat what is written in the

18 submission, but in the indictment we should be given

19 more details. First, about the factual basis of each

20 particular count of the indictment. Then we should be

21 given more details which will clarify the time -- the

22 time of the acts alleged against the accused.

23 I need not reiterate that my client is being

24 charged with acts over a period from April 1992 until

25 the end of September 1994, and we are talking about a

Page 720

1 very turbulent time in which many events took place, so

2 that every count which is so broad as to time is not

3 clear and makes us have to deal with things which may

4 not be relevant.

5 Furthermore, in any case, I think we should

6 get at least the minimum information about who the

7 victims are, because most often we do not know whether

8 the victims were civilians or soldiers, and this, of

9 course, changes the legal nature of a case, because if

10 the victims were soldiers we cannot talk about the

11 crimes being alleged.

12 What seems especially important to me, but it

13 has already been referred to in other submissions

14 today, and that is the role of the accused in the acts

15 committed. What form of activity is the accused being

16 charged with? Along with this, with the role, I think

17 that certain improvements should be made in the

18 indictment to make it clear, because the mens rea is

19 not clear in the counts alleged. Then the participants

20 should be specified, because it says that "Mario

21 Cerkez, together with members of..." and so on, "With

22 their leaders, agents..." and so on, who were these

23 agents? With whom did Mario Cerkez act? They should

24 be identified and so on.

25 That is why I move and request that the Court

Page 721

1 should tell the Prosecution to specify the indictment

2 in all parts where this is necessary, so that the

3 indictment can be fully understood and so that the

4 Defence can be prepared with reference to specific

5 acts, specific places, a specific time and a specific

6 role by the accused and not as a broad defence which

7 may not be very precise. Thank you.

8 JUDGE MAY: Thank you. Mr. Geneson again.

9 MR. SMITH: Your Honour, if I might answer

10 the Judge's question?

11 JUDGE MAY: Yes.

12 MR. SMITH: Should I do that at this point or

13 wait until--

14 JUDGE MAY: Do that now, please.

15 MR. SMITH: Your Honour, I refer you to

16 paragraphs 10 and 11 of the Prosecutor's response to

17 our motion on the form of the indictment number 1, and

18 in particular two examples. The last sentence of each

19 of those paragraphs, the last sentence of paragraph 10

20 speaking of Article 2, grave breaches, says, "These

21 prohibitions aim to criminalise certain conduct," and I

22 take the word "aim" to mean an assertion to interest or

23 value, although it's not clearly stated, "Aim to

24 criminalise certain conduct during inter-state

25 particularly in respect of protected persons."

Page 722

1 "Protected persons" is an element of the crime, the

2 fallen into the hands of the adversary. So you have a

3 mixing of one use, articulation of interest in terms of

4 the element.

5 Also in the last paragraph of -- sentence of

6 paragraph 11, it says, "In respect of Common Article

7 3," and they're speaking now of Article 3 of the

8 Statute, "In respect of Common Article 3 of the Geneva

9 Conventions in particular, these rules promote the

10 protection of all persons no longer taking part in

11 hostilities."

12 Now, I take the word "promote the protection"

13 to be a statement about interest. They then go on to

14 say, "The protection of persons not or no longer taking

15 part in hostilities." That's an element. "Whether

16 international or internal, from the most serious forms

17 of inhuman treatment, including violence to life and

18 torture," that's a direct reference to the various

19 crimes and their elements. So I think it can be

20 established that they have not borne the burden of

21 making a clear and persuasive argument on interests and

22 elements but particularly interests with regard to the

23 various sections of the Statute. Thank you, Your

24 Honour.

25 JUDGE ROBINSON: Could that not be because

Page 723

1 there is a level at which the concept of elements and

2 the concept of interests overlap?

3 MR. SMITH: I think it could be, Your Honour,

4 but the test articulated in Kupreskic turns on

5 interests on the one hand and elements on the other.

6 If I were articulating the relevant interest,

7 I would say that all of the provisions of the Tribunal

8 Statute have the same interest, and that interest is

9 that articulated by Michael Boch in the International

10 Encyclopedia of Law where he says that International

11 Humanitarian Law is designed to "Preserve civilisation

12 and humanity during war."

13 I think all of these provisions have

14 essentially the same interest and it shades into the

15 elements, the elements tend to be more differently

16 articulated, but the test requires both a different

17 interest and different elements or that they should not

18 be double charging, Your Honour. That's our argument.

19 MR. GENESON: Thank you, Your Honour. Let me

20 address Article 7 and the 7(1), 7(3) issue.

21 The Defence recognises that a number of

22 Chambers have dealt with this issue, but we're asking

23 this Chamber to look at it afresh.

24 I guess the starting point of the argument

25 really goes to Protocol 1 of the Geneva Convention,

Page 724

1 Article 86, which is the underpinnings for these

2 exclusionary statements, that is the statements which

3 prohibit the use of certain defences.

4 Let me just quote from Article 86. "The fact

5 that a breach of the conventions or of this Protocol

6 was committed by a subordinate does not absolve his

7 superiors from penal or disciplinary responsibility as

8 the case may be if they knew or had information which

9 should have enabled them to conclude, in the

10 circumstances at the time, that he was committing or

11 was going to commit such a breach, and if they did not

12 take all feasible measures within their power to

13 prevent or repress the breach." From that flows this

14 language.

15 If you look at Article 7, it almost cries out

16 for a slightly different layout of the printing. The

17 first section, 7(1), is the vehicle by which the

18 Prosecutor charges individuals. It's, in effect, the

19 tube through which it's all drawn. But (2), (3) and

20 (4), in reality, should probably be tabbed over one

21 notch with the heading "on available defences."

22 In each one there is language to the effect

23 that shall not relieve such person of criminal

24 responsibility, does not relieve his superior of

25 criminal responsibility, and shall not relieve him of

Page 725

1 criminal responsibility, each tied to a senior person

2 not being able to avoid criminal responsibility, in

3 effect assert a defence predicated by an attenuated

4 position from the actual violation.

5 The Prosecutor suggests that you can charge

6 under 7(1) and 7(3), in effect turns the defence or the

7 defence unavailable into a vehicle for charging. We

8 would suggest that that is only available if your

9 indictment is vague enough. If it lacks the

10 specificity of actually a direct charge, that is an

11 individual either committed, instigated or aided and

12 abetted an act, or an individual was liable for failing

13 to prevent his subordinate, charged under 7(1), for

14 committing, instigating or aiding and abetting in an

15 act.

16 In effect, even if you were to charge an

17 individual as a perpetrator and also a director of his

18 subordinate --

19 THE INTERPRETER: Please slow down.

20 MR. GENESON: I'm sorry, I forget. -- and a

21 director of his subordinate in the same act

22 simultaneously, their violation would merge into one

23 under 7(1).

24 Hypothetically, you can even have a failure

25 of the Prosecution for the senior person is a committer

Page 726

1 and a conviction of the subordinate as the committer

2 and the senior person would be liable once again under

3 7(1), because you could not successfully defend by

4 showing that he had been inadequate in his activity in

5 terms of preventing the conduct, in effect, aiding and

6 abetting, what one might even call an accessory before

7 the fact.

8 We would suggest that the tribunal look

9 closely at the construction of Article 7 and look at

10 the underpinnings, because, in fact, only the vague

11 kind of generic charging that the Prosecutor is engaged

12 in here permits them to claim that 7(3) is a

13 stand-alone vehicle for Prosecution and not one of the

14 three enumerated unavailable defences for senior

15 personnel. Thank you.

16 MR. SMITH: Thank you, Your Honour. I will

17 address the nexus question raised in motion number 4 in

18 the form of the indictment.

19 The Prosecutor must do more than simply

20 prove, allege and prove that there is an international

21 armed conflict, as he attempts to do -- she attempts to

22 do. She must also allege and prove that there is a

23 nexus between the matter charged and the international

24 armed conflict, and in this regard I refer Your Honours

25 to the law that is beginning to be articulated by

Page 727

1 various Trial Chambers and the Appeals Chamber. The

2 Tadic Appeal Chamber notes: That the crimes must be

3 "closely related" to allege to the alleged

4 hostilities.

5 The Tadic judgment says that "a sufficient

6 nexus must be established."

7 In the Furundzija judgment the Trial Chamber

8 has said -- the question is "whether a nexus exists,"

9 and whether there is "an obvious link between the crime

10 and the hostilities." The question of which

11 hostilities, then, the Prosecutor is talking about and

12 alleging and attempting to prove is a critical one,

13 because there can't be an obvious link unless it is

14 obvious what hostility the Prosecutor is talking

15 about. And in this matter it is not simple in the

16 former Yugoslavia, as the Tadic case has articulated.

17 As they said in the jurisdictional decision,

18 the "conflicts in the former Yugoslavia" can be

19 characterised as "both internal and international or,

20 alternatively, as an internal conflict alongside an

21 international one or as an internal conflict that had

22 become internationalised because of external support or

23 as an international conflict that had subsequently been

24 replaced by one or more internal conflicts or some

25 combination thereof."

Page 728

1 The Prosecution in its response says, "We did

2 allege that there was a nexus to a conflict." It is

3 the Defence's argument, Your Honours, that something

4 more is needed than the simple, flat assertion that

5 there is a nexus to a conflict. Precise details are

6 not necessary. The Prosecution goes on at some length

7 about how this is very complex, they don't have to lay

8 out all the precise details now. There is an

9 undistributed middle, Your Honours, between, on the one

10 hand, this very spare assertion of a nexus to a

11 conflict and a wealth of detail that will come in at

12 trial, and the Defence is arguing that much more, but

13 not the wealth of detail, can be provided and must be

14 provided as a matter of fair notice to the Defence.

15 The Prosecutor has also argued that the legal standard

16 applicable here can be left until trial, but, Your

17 Honour, the question of whether a proper nexus -- what

18 a proper nexus is and whether it is pled is a pure

19 question of law.

20 The question the Prosecution discusses in

21 attempting to postpone Your Honours' consideration of

22 this matter is the underlying question of whether there

23 was or was not an international armed conflict. That

24 requires facts. That will have to be dealt with at

25 trial, but the pleading question, the question of the

Page 729

1 adequacy of the nexus is a question of law under the

2 guidance from other Trial Chambers that I have just

3 outlined and needs to be resolved at this time.

4 Now, a critical problem with what the

5 Prosecution says, if you look at paragraphs 8 or

6 paragraphs 13 or paragraph 16 of their response, they

7 simply assert that the HV, that is to say Croatian army

8 troops, intervened and that there was an international

9 armed conflict. They never specified whether the HV

10 are said to have intervened in 1992 against the Serbs

11 when it can be alleged that the HV troops came into

12 Herzegovina, not Central Bosnia, in 1992 to assist the

13 Muslims in the fight against the Serbs.

14 They never specify whether that's what they

15 mean by HVO intervention or whether they mean to allege

16 that the HVO, which in the Defence's view, and we will

17 show this at trial, was only -- whether the HV was only

18 ever in Herzegovina, whether the HV in 1993 and '94 in

19 the essentially separate internal conflict between the

20 Bosnian Muslim community and the Bosnian Croat

21 community, which subsequently broke out, whether they

22 argue that the HV intervened in that conflict against

23 the Muslims.

24 Now, this is not a great level of detail, but

25 it is critically important to what it is they are

Page 730

1 saying, and whether it is defensible and how the

2 defence establishes its case.

3 I invite Your Honours to look at paragraphs 8

4 and 13 and 16 and the specificity even at this level is

5 simply not there.

6 In conclusion, the Defence asserts that the

7 Prosecutor cannot show, not only has not, cannot show a

8 nexus to support the indictment pre-May of 1993,

9 because the HV, if it was in -- if it were in Bosnia at

10 all, was in Herzegovina, intervened in 1992 against

11 the Serbs on behalf of the Muslims and under an

12 agreement between Croatia and Bosnia.

13 We assert that they also do show no nexus

14 between the HV and the HVO in Herzegovina in 1992 and

15 1993, which is the time period during which there was a

16 conflict, an internal conflict, between the Muslim

17 community and the Croat community in Bosnia, but even

18 there, even if they were to show a nexus to the HV and

19 Herzegovina during that time period, and against that

20 opponent, that is to say the Muslims, Herzegovina,

21 Western Herzegovina is a very different location than

22 the Central Bosnian region, the Lasva Valley region

23 where there is a conflict that this case turns on the

24 resolution of.

25 Thank you, Your Honour.

Page 731

1 JUDGE MAY: Thank you, Mr. Smith. Perhaps

2 we can have your chart down. Take the easel down.

3 Could we have the easel down, please.

4 Mr. Smith, I don't know if you could reduce

5 that chart for the Trial Chamber. It looked a useful

6 production.

7 MR. SMITH: Yes, Your Honour. I can leave

8 this version and then I have got a second version that

9 deals just with Mr. Cerkez, because of course the

10 Counts differ as between the two. I can leave those,

11 take an extra home and try to have them reproduced,

12 boiled down into size and submitted to Your Honour in

13 due course.

14 JUDGE MAY: It would be helpful. There is no

15 need to leave one, but if you could get one in reduced

16 size, that would be useful. Thank you.

17 Yes, Prosecution.

18 MR. NICE: Would it be convenient if I dealt

19 both with vagueness and with nexus and then Mr. Dixon

20 can deal with the two outstanding matters rather than

21 taking them in the precise order. And in each case I

22 think I can be comparatively brief and very brief.

23 The forms of indictment with which this

24 Tribunal is familiar, and we will become familiar, may

25 differ significantly from the forms of indictment which

Page 732

1 we have all been accustomed in other jurisdictions. A

2 theme of indictments elsewhere is that they sometimes

3 can be very brief indeed and far less clear in the

4 allegations that they are made -- making them. For

5 example, this indictment is, which the Court will see,

6 contains preamble almost by way of general allegations

7 and background, which explain how it is that the

8 defendants' conduct is alleged to fit into an overall

9 scheme of thing and thus indeed to become criminal.

10 So the general assertion that the defendants

11 are undersupplied with detail because the indictment is

12 in some way short on detail simply isn't correct. They

13 are very full indictments. And, of course, they are

14 now the conventional form of indictment within this

15 Tribunal.

16 Turning to their detailed problems that my

17 learned friends raised with you. In each case, of

18 course, you are dealing with people somewhere up the

19 pyramid or triangle of responsibility. And as is clear

20 as a matter of logic, and indeed covered by authority,

21 as set out in our pleading, the further up that

22 triangle or pyramid you go, the less likely is it that

23 complete specificity in relation to any particular

24 crime on the ground may be alleged. For, of course,

25 people at the top in command may have created

Page 733

1 successfully by intention or otherwise a distance

2 between themselves and the range of offences for which

3 they may be proved to be responsible.

4 You will, I trust, remember the -- or be able

5 to remind yourself of what is said in paragraph 25 of

6 our response on this particular motion.

7 We say that so far as both of these

8 defendants are concerned, the provisions of Article

9 18(1) and Rule 47(b) have indeed been complied with.

10 It's not a detailed narrative that's required, but a

11 concise statement of facts and of the crimes with which

12 the defendant is charged that has to be set out. They

13 are indeed on full notice of what is alleged against

14 them, not only from the particular setting out of the

15 Counts with which they are charged, but by reason of

16 all the preceding material which sets out, for example,

17 in Mr. Kordic's case, the bodies of which he was an

18 officer and how it was that in those positions he was

19 able to do this and that.

20 We would invite Your Honours to say that

21 there is absolutely nothing in the argument that this

22 indictment is either out of the ordinary in any sense

23 for this Tribunal or inappropriate to the facts that it

24 is clear and on notice these defendants have to face.

25 And because we are not going to repeat what is set out

Page 734

1 in our motions, we'll leave it there, subject to any

2 questions that you may have.

3 JUDGE MAY: Well, Mr. Nice, even if we were

4 with you on the pleading point and the fact that this

5 indictment follows the form which is now conventional,

6 there will come a time when the Defence arguments may

7 have more force, and it's a matter which I would wish

8 you to consider in your Pre-Trial brief, namely, to

9 tie the allegations, secure them rather more precisely

10 to the various counts.

11 Let me take the count which was referred to,

12 Counts 7 to 13, paragraph 42. Now, when you come to

13 draft your Pre-trial brief in relation to that, and, of

14 course, the similar counts against Mario Cerkez, counts

15 14 to 20, it will be necessary to condescend to more

16 particulars so that the Trial Chamber knows how it is

17 you set out to prove this particular allegation or

18 these particular allegations against this particular

19 defendant.

20 MR. NICE: Certainly. And that will be

21 done. I had that point in mind, but didn't think it --

22 I didn't think it's the case that the Pre-Trial brief,

23 in any sense, becomes part of the indictment, but it

24 certainly serves that particular purpose of

25 particularisation, and it will do in this case.

Page 735

1 JUDGE MAY: Yes. The distinction should be

2 drawn between the pleading, which is the indictment,

3 and the case, the Prosecution case which should appear

4 in the Pre-trial brief, which is specific and, I trust,

5 detailed.

6 MR. NICE: Yes. I mean, there is two tiny

7 points to make. Of course, not infrequently where

8 defendants submit themselves for interview, they obtain

9 in this not category of case, but in cases which are

10 wide ranging, they are, of course, informed of

11 particular matters in more detail in that way. There

12 is one tiny point.

13 Second point, just by way of correction. If

14 Mr. Scott's information is accurate, Mr. Geneson

15 reminded you both of their common lineage before coming

16 to this building. I gather in America the move is also

17 towards spare indictments and to briefer pleadings

18 there.

19 So a tiny point.

20 JUDGE MAY: Yes. But the important point is

21 that before the case begins the case should become

22 clear in order that -- from the Trial Chamber's point

23 of view, in order that the proceedings can be properly

24 managed, and of course the same will apply in due

25 course to the Defence when we shall be inviting a

Page 736

1 Pre-trial brief which will set out the Defence, so we

2 know what matters are in issue and what aren't.

3 MR. NICE: Thank you very much. Well, that

4 will certainly be done. It's in mind and, of course,

5 well underway.

6 JUDGE MAY: Just one other thing. The sooner

7 the better. I think we've set a date for it.

8 MR. NICE: You have. You have set a date and

9 all our diaries are marked with the dates that you have

10 set.

11 As to number 8 or, I beg your pardon, the

12 indictment motion 4, because of nexus, again we've

13 addressed this fully in our response. This is a matter

14 of evidence, is it not, again, the allegation of

15 international armed conflict and the nexus is made and

16 it will be for the evidence to establish whether it is

17 made or not. Now is not the time to be deliberating

18 upon it or striking it out. As with the previous

19 general concern that Your Honours raised and expressed,

20 this will be -- it's all set out to some degree in the

21 indictment, but it will be more particularly addressed

22 in any event at the stage of the Pre-Trial brief. They

23 are certainly on notice under Article 2, international

24 armed conflict, and Article 3, where armed conflict is

25 sufficient, and we've named the various bodies that it

Page 737

1 is said are involved within the general part of the

2 indictment. So that this is again, in a sense, perhaps

3 premature. It's a matter of evidence and there is no

4 way it can be taken further simply on the pleading, the

5 indictment. Thank you.

6 MR. DIXON: Your Honours, with respect to the

7 motion on cumulative charging, we submit that we are

8 justified in cumulative charging in this indictment for

9 a number of reasons.

10 Firstly, the Tribunal is empowered to charge

11 all violations, that's in Article 1 of the statute of

12 International Humanitarian Law, and then under the

13 particular Articles that follow the rules under

14 International Humanitarian Law are set out in detail.

15 Secondly, there is no prejudice, we would

16 argue, to the accused for being charged with different

17 offences for the same conduct. The matter can be

18 sorted out at the sentencing stage and the accused need

19 not serve a double penalty for being convicted of more

20 than one offence for the same conduct. Thirdly, the

21 offences charged in the indictment are different

22 offences with different histories; they've got

23 different elements, and they protect different

24 interests as well. For example, Article 2 applies only

25 to offences that are committed during international

Page 738

1 armed conflict and only to persons who are protected

2 specifically by the Geneva Conventions, whereas Common

3 Article 3 applies to all persons who are not involved

4 in hostilities during any conflict, whether that be

5 international or internal.

6 To the extent that there might be an overlap

7 between articles 2 and 3, we believe it's justified

8 nevertheless to have both charges, because it is only

9 under Article 2 that a record, if it's found, can be

10 made that an international armed conflict existed, and

11 that the persons who are protected persons in terms of

12 the conventions, that they fell within one of the

13 categories, such as being prisoners of war.

14 Fourthly, there is also no recognised system

15 of lesser included offences within the Statute Rules or

16 the jurisprudence of the Tribunal at this point, and

17 therefore it's necessary to charge all the offences

18 that cover the conduct.

19 All of the Trial Chambers to date, both Trial

20 Chambers in the Rwanda Tribunal and in this Tribunal,

21 have adopted the approach of permitting cumulative

22 charging, as I've outlined; that's Trial Chambers in

23 the Tadic, the Blaskic, and the Kupreskic cases, for

24 example, and we would invite Your Honours to follow

25 this jurisprudence in permitting cumulative charging.

Page 739

1 Finally, in respect of persecution, we wish

2 to submit that the acts of persecution themselves can

3 be charged as other crimes against humanity. We would

4 say that these acts constitute different crimes with

5 different elements, and they protect different

6 interests. Persecution as a crime can encompass many

7 acts: Acts which are judicial, economic, physical,

8 which deprive civilians of one of their basic or

9 fundamental rights, whereas the other crimes against

10 humanity, like murder or rape, are focused only on

11 those crimes, and the elements and interests are

12 confined to those crimes as well. So it's for these

13 reasons that we would submit that the Defence motion

14 should be rejected on the cumulative charging.

15 I'll move on, if it pleases Your Honours, to

16 the motion on Article 7(3). Briefly, we submit that

17 superior responsibility is clearly recognised as an

18 independent and separate form of individual criminal

19 responsibility under international humanitarian law.

20 There is no need to, as the Defence has suggested,

21 first prove that the perpetrator either ordered or

22 instigated or committed one of the offences before

23 Article 7(3) is applicable. If a superior either knew

24 or should have known that offences were being committed

25 by his subordinates and he failed to prevent or punish

Page 740

1 those acts, that alone is a basis under international

2 humanitarian law, to attract criminal responsibility.

3 We have in our brief listed the numerous authorities

4 that support this point, including cases from the

5 Second World War, the additional protocols, and

6 decisions of the tribunals, the Celebici and Akayesu

7 decisions, for example.

8 We also wish to submit that it is permissible

9 to charge Article 7(1) and 7(3) cumulatively, for a

10 number of reasons. Firstly, the act involved can

11 involve both forms of responsibility. For example, in

12 a series of generally planned attacks, it is possible

13 if an individual planned one or some of those attacks

14 to charge that person for those attacks under Article

15 7(1); and also, at the same time, where he did not plan

16 any of the other attacks specifically, charge him for

17 preventing -- for failing to prevent or punish other

18 attacks, providing it can be shown that he knew or

19 should have known that those attacks were occurring.

20 Secondly, there is no prejudice, we would

21 submit, to the accused, because as submitted earlier,

22 this matter can be sorted out on sentencing.

23 Thirdly, Articles 7(1) and 7(3) are different

24 forms of responsibility which should be recognised

25 publicly in the record, if that constitutes the acts

Page 741

1 that the accused committed. And the full spectrum of

2 the accused's conduct should be reflected in the

3 judgment.

4 Trial Chambers of both tribunals have

5 supported cumulative charging of articles 7(1) and

6 7(3); for example, in the Blaskic and Celebici cases.

7 And in the Celebici case specifically, one of the

8 accused, Mr. Mucic, was held responsible for both

9 participating in maintaining the inhumane conditions in

10 the Celebici camp, and also for failing to prevent the

11 acts that occurred within the camp.

12 A bench of the Appeals Chamber has also held

13 that these forms of responsibility can be charged

14 cumulatively, and we would invite the Trial Chamber to

15 follow this line of jurisprudence that has developed.

16 JUDGE MAY: Thank you.

17 Yes, Mr. Smith; do you want to reply?

18 MR. SMITH: I'll reply, Your Honour, quickly

19 on motion number 1 and motion number 4.

20 On motion number 1, the majority of the

21 points covered in the argument are dealt with

22 adequately in our brief. But on the question of

23 developments at the time of penalty, I would make three

24 points, Your Honour. First, we have outlined in our

25 brief the policies that apply and cause prejudice to

Page 742

1 the defendant, at the time of charging and during

2 trial, by multiple charging. These are not addressed

3 when multiple charging is allowed at the outset and

4 through the trial, by the cumulative or concurrent

5 penalties at the time of sentencing.

6 Second, concurrent penalties are of little

7 aid to a defendant where life sentences are at stake.

8 And third, I would urge Your Honours not to

9 ignore the time-honoured rules that have developed

10 about charging simply on the assertion that concurrent

11 sentences will not be granted. Judges, in developing

12 those rules over many, many years in all systems, have

13 not found it satisfactory -- because of the kinds of

14 policies about the defendant's rights before and during

15 trial that we have cited -- have not found it

16 satisfactory to simply allow multiple charging

17 willy-nilly because concurrent sentences can be granted

18 later.

19 On the motion number 4, I would simply

20 disagree with my learned colleague that this is just a

21 matter of evidence. This is a matter of pleading. And

22 we believe firmly, and have asserted and continue to

23 assert, that on the nexus question, as elsewhere, when

24 we've argued the vagueness point generally , there is

25 simply an inadequate pleading at this stage. We've

Page 743

1 taken, of course, Your Honour's point about the

2 Pre-Trial brief.

3 Mr. Geneson, do you have anything further?

4 MR. GENESON: Your Honour, I would only note

5 one thing, and that's in regards to the vagueness

6 motion.

7 I believe the Tribunal, through Your Honour,

8 has indicated at least an interest and a direction to

9 the Prosecution to resolve some of those vagueness

10 issues. We appreciate that. But I would like to make

11 a note for the record that until the Prosecutor files

12 its Pre-Trial brief, we are handicapped, and that that

13 specificity that is expected by the Tribunal is

14 unavailable to the Tribunal and to us. I would make

15 that point.

16 In conjunction with -- I believe the

17 Prosecution has to a certain extent conceded how vague

18 its pleading is, because its strongest argument is

19 "That's the way we do it, Your Honour. It doesn't

20 matter what it's done like elsewhere. We're used to it

21 here." Your Honour, I would suggest that's not a valid

22 basis to prepare a vague and nonspecific pleading. It

23 handicaps the Defence; it remains as a handicap to the

24 Defence until the Pre-Trial brief is filed.

25 Thank you.

Page 744

1 JUDGE MAY: Judge Bennouna.

2 JUDGE BENNOUNA: Thank you, Mr. President.

3 My question is addressed to the representative of the

4 Prosecutor regarding cumulative charges. The President

5 has just expressed the feeling of the Trial Chamber

6 regarding the necessity of specifying the charges in

7 the Pre-trial brief. And you accepted that.

8 My question is as follows: The cumulative

9 charges, it's not just a question of precision; it's a

10 question of approach. Either one believes that one has

11 multiplied charges, as we see it here, by repeating the

12 legal basis underlying those charges -- I'm referring

13 to paragraph 40, 40 different counts -- as a function

14 of a legal basis. Or, what seems to me to be much

15 clearer, and we hope that that will be guidance for

16 you, you are basing this on criminal conduct which was

17 the criminal conduct or behaviour alleged that you are

18 alleging the accused of having committed. And then for

19 each of those acts, you would indicate what are the

20 legal bases for criminalisation which justify criminal

21 proceedings.

22 Because in fact, the same criminal behaviour

23 or act can be prosecuted in different ways, as we see

24 under humanitarian law, and that is why we have this

25 repetition, but which sometimes defends different

Page 745

1 values within different frameworks. So my question is

2 whether, at the level of the Office of the Prosecutor,

3 you realise what we expect of you in the Pre-trial

4 conference or brief: That is, to show to the Trial

5 Chamber which are the criminal acts that you wish to

6 prosecute and which are the legal bases for those

7 charges, and on the basis of which you have made those

8 charges, so that the trial may proceed and for us to be

9 able to better manage the proceedings within a

10 framework that has to exist in all legal proceedings.

11 Thank you.

12 MR. NICE: Can I answer your question,

13 although Mr. Dixon was dealing with this particular

14 motion and response.

15 The answer to your question is yes, we do

16 understand what you desire, and indeed we've had that

17 in mind for some time in the way that we've been

18 preparing documentation. You may remember that it's

19 our intention to serve, by way of schedule, information

20 that will reveal in respect of each -- for example,

21 location, what is alleged to have happened at each

22 location. So that will take care of looking at

23 paragraph 40, the various named villages. And then in

24 respect of the same topic, we will spell out, either

25 there or at the appropriate part of the brief, the

Page 746

1 legal basis for liability in greater detail, drawing on

2 either evidence that's forecast or exhibits that it is

3 intended to put in to the Tribunal.

4 So we have well in mind the needs of the

5 Tribunal; we have well in mind the needs of Judges

6 to -- as indeed of Defence counsel -- to have this

7 material at that stage of the trial. And it will be

8 made available.

9 MR. SMITH: Your Honour?

10 JUDGE MAY: Yes, Mr. Smith. Have you got

11 some observation on that?

12 MR. SMITH: It's a related point, Your

13 Honour, that I think may be of assistance to the

14 Tribunal, and that is the Prosecution has said that the

15 lesser included offence doctrine is not enshrined or

16 recognised at this Tribunal at this point. But I would

17 remind Your Honours that the Akayesu decision in the

18 Rwanda Tribunal has expressly noted that lesser

19 included offences cannot be charged at the outset, and

20 thus I take it recognises that the concept exists, and

21 it might be useful as a device, as I indicated earlier,

22 the indictment would pare down lesser included offences

23 later argued.

24 Thank you, Your Honour.

25 JUDGE MAY: Now may be convenient to deal

Page 747

1 with the motion in relation to compliance with the

2 disclosure requirements. This is a Defence motion

3 which is now fairly ancient, having been filed last

4 July and the response having been filed in July. I

5 think it might be helpful, Mr. Smith, if we reviewed

6 the current state of disclosure and to see what it is

7 in addition that you're asking for.

8 Much of the motion will in fact be water

9 under the bridge. You have now got the unredacted

10 statements, as I understand it. While we're dealing

11 with this topic, you should have soon the -- if you

12 don't have it already -- the material from the public

13 sessions in the Lasva Valley cases. A decision has

14 been drafted and should be with you very shortly as to

15 the material which you will have from the private

16 sessions, and I can say that that will follow the

17 recommendations of the various Trial Chambers who have

18 the conduct of those cases. But that material, too,

19 will be disclosed to you.

20 There is in place an order as to when the

21 rest of the material should be delivered to you, the

22 unredacted versions of the witness statements. I don't

23 know what other material there is; it might just be

24 helpful to refer to the Prosecution.

25 Is there anything else that's got to come

Page 748

1 out?

2 MR. NICE: There's a Blaskic Trial Chamber

3 dilemma.

4 JUDGE MAY: Resolved. Resolved in the sense

5 that the order we're making will follow the opinion of

6 the Blaskic Trial Chamber. I suppose it will result in

7 your having to make some decisions for the Prosecution

8 as to the material you're going to rely on from that

9 trial and also any exculpatory material.

10 MR. NICE: I think the order to which Your

11 Honour refers may relate only to exculpatory material

12 in which we've made an application.

13 JUDGE MAY: It also refers to the material on

14 which you're going to rely.

15 MR. NICE: Yes. What I think don't think

16 we're yet aware of is the results in relation to

17 material witnesses of the inquiries by the Victims and

18 Witness Unit, and what I don't think is resolved

19 anywhere at the moment is what happens if the result --

20 if the relevant witness is answering in the negative to

21 the inquiries that are being made.

22 JUDGE MAY: The position is this: They have

23 been made. It's in relation to Kupreskic, and the

24 majority of the witnesses have indicated a willingness.

25 MR. NICE: They have, indeed, yes.

Page 749

1 JUDGE MAY: And the order we shall make is

2 that that material be handed to the Defence.

3 MR. NICE: Certainly.

4 JUDGE MAY: That deals with that case.

5 The Blaskic case material, we're following

6 the recommendation of the Trial Chamber and that

7 material too will be disclosed, subject to its being

8 identified by yourselves.

9 So leaving that aside, which is one aspect of

10 it, is there any other material which you're likely to

11 have to disclose?

12 MR. NICE: I was going to ask Mr. Scott to

13 deal with this because he's been very much dealing with

14 disclosure, but I'll just discuss it if you'll just

15 give me a moment. I don't think there's anything

16 else. Will you give me a minute while I check?

17 JUDGE MAY: Yes. I'm reminded, Mr. Nice, of

18 this: As to whether there are any other witnesses on

19 whom you're going to rely and whose statements haven't

20 been disclosed.

21 MR. NICE: Yes. The Chamber's order, when it

22 first came out, was a matter of some discussion, as I

23 think your legal officer may have mentioned to you.

24 The reality of this type of case is that the

25 preparation of the final decisions about witness itself

Page 750

1 takes quite some time. I may have gone into this

2 before, but it is an extended process that involves

3 contact with the witnesses as well as appraisals by the

4 lawyers, and we haven't made any final decisions on

5 witnesses. We were working towards what we understood

6 to be the material date, which is the Pre-Trial hearing

7 and the witness list to be served on that date, and

8 have not planned and probably would barely have the

9 resources to divert to another whole exercise of

10 interim decision-making. The decisions about other

11 witnesses really has to be made by not just me or not

12 just one of us, it has to be made in a way that

13 reflects our overall duty to the Office of the

14 Prosecutor, and we plan to make it in such a time as to

15 serve the witness list on the 11th of March or the day

16 before.

17 So other statements beyond those already

18 served as the supporting material for the original or

19 amended indictment will be coming then, because indeed

20 that's when we'll be making the decision effectively.

21 JUDGE MAY: Thank you.

22 MR. NICE: There is, I think, nothing -- we

23 believe we are in compliance with our duties, and we

24 have various exercises that continue to ensure that we

25 remain in compliance.

Page 751

1 JUDGE MAY: Well, that being the position,

2 Mr. Smith, what other material are you asking for? I

3 mean, is it all the material which you set out in your

4 July motion? Are you pursuing that?

5 MR. SMITH: Your Honour, let me take the

6 matters covered in that motion one by one and start

7 with the supporting material.

8 We have been given the supporting material --

9 we have been given supporting material associated with

10 the amended indictment. What we do not have at this

11 time and what I would ask the Prosecutor to say for the

12 record is whether that is all of the supporting

13 material that was supplied to the confirming Judge.

14 Our argument is that we are entitled to all

15 of it, and we notice, for example, that there was a

16 statement of facts with the supporting material for the

17 initial indictment, and there is no statement of facts

18 associated with the material for the amended

19 indictment, and if there was a statement of facts that

20 was supplied to the confirming Judge, along with the

21 rest of the supporting material, it is our argument

22 that we're entitled to it. And we believe we're

23 entitled to have the Prosecutor state for the record,

24 therefore, whether we've been given all of the

25 supporting material that was supplied to the confirming

Page 752

1 Judge, and if not, then we would simply request Your

2 Honours to rule on our motion that we be given all of

3 that material and that would finish off this matter of

4 the supporting material.

5 MR. NICE: There is no statement of facts in

6 precisely the form of the original indictment, but the

7 Court will, of course, understand that applications in

8 respect of proposed indictments are accompanied by

9 documents that go to the confirming Judge, a pleading

10 or motion of some form, which may well contain

11 materials similar to, probably did, but that's really

12 by way of a forecast of any argument that may be

13 addressed to the Judge if the Judge, when, in this

14 case, she heard the matter decided she wanted such

15 argument. And the very nature of those ex parte

16 proceedings is such that there is no entitlement by the

17 Defence to the documents that are made available, nor

18 should there be any precedent set that they are

19 provided.

20 It's true that when the original indictment

21 was confirmed, and I'm afraid I can't tell you why,

22 how, by what mechanism, a statement of facts generated

23 was provided. I think that preceded the participation

24 with all of us here in this Tribunal, and so I simply

25 don't know how that came about, but there is no reason

Page 753

1 for the document that is served ex parte to be made

2 available to the Defence. I haven't considered, I have

3 to tell you, whether I would like to make that document

4 available or like to withhold it, because I hadn't

5 known this particular topic was going to be raised

6 today.

7 JUDGE MAY: Your position is, Mr. Nice, that

8 all supporting material has been made available.

9 MR. NICE: Yes, because that isn't supporting

10 material, that's a document of argument to the Judge.

11 JUDGE MAY: Thank you. Yes.

12 MR. SMITH: Your Honour, I would respond that

13 it seems to me the statement of facts provided with the

14 original supporting material was provided only because

15 it was part of the supporting material, and because the

16 nature of the proceeding before the confirming Judge is

17 ex parte, it would not have been provided unless it

18 were supporting material. Indeed, it would have been

19 improper.

20 If there is another document by whatever name

21 which now is in effect or has the same substantive

22 content as a statement of fact, then it seems to me the

23 Prosecutor has conceded that that is part of the

24 supporting material and that that should be provided.

25 JUDGE MAY: Yes.

Page 754

1 MR. KOVACIC: (Interpretation) Mr. President,

2 I would like to support this submission. I consider

3 this to be a very serious issue. I do not quite

4 recall, though I did not prepare for this discussion,

5 but I do the not recall ever us having any dilemmas

6 regarding the scope of the rights under 66. Whatever

7 the Prosecutor gave to the Judge when asking for the

8 indictment to be confirmed, or in this case the amended

9 indictment, constitutes supporting material and we're

10 entitled to having that material disclosed. It is not

11 up to the Prosecutor to decide that, "I gave this to

12 the Judge to help the Judge decide and I will give

13 something else to the Defence."

14 The supporting material, as far as I can see

15 it, is a unified set of supporting documents with which

16 the Prosecutor sports his submissions, his document,

17 his indictment, and it emerges from the Rules that

18 whatever he has given to the Judge has to be disclosed

19 to the Defence, the only exception being those matters

20 that have to do with the protection of the victims and

21 witnesses.

22 This is for the first time for me to hear

23 such a point being made. He seems to imply that there

24 are some additional papers that have not been disclosed

25 to us. We are late with the discovery, late with

Page 755

1 exculpatory material, and now it appears that we also

2 are due to receive more supporting material.

3 JUDGE MAY: Yes. Did you want to say

4 something, Mr. Nice?

5 MR. NICE: On that topic, no. I would only

6 be repeating myself. It's not part of the supporting

7 materials, no, it isn't.

8 There is one other topic that I ought to just

9 mention, and that is that the President who was the

10 Judge dealing with the amended indictment has raised an

11 issue not about the materials that were presented to

12 her but she's raised an issue, it's being dealt with

13 and it will be dealt with swiftly.

14 I simply say that. It may or may not involve

15 some other document being served, but I'll simply have

16 to await her decision on that which won't come for a

17 few days yet, but it arises from her determination in

18 relation to the amended indictment and it can't be

19 disposed of for a day or so yet.

20 MR. SMITH: I'm bound to say, Your Honour,

21 that the Defence is simply mystified as to what this

22 decision is and what relation it bears to our request,

23 and we're ill-equipped to argue or deal with the matter

24 because obviously --

25 JUDGE MAY: I don't think we need trouble you

Page 756

1 with it. It's clearly an ex parte matter.

2 Let's move on to the next area which you want

3 to raise, Mr. Smith.

4 MR. SMITH: Yes, Your Honour. The second

5 area then is the prior statements of the accused. The

6 Prosecutor has essentially taken the position that

7 there are no prior statements of the accused because

8 they've not interviewed the accused, and we have laid

9 out at page 15 of our motion the scope of the prior

10 statements that we believe we are entitled to have if

11 they are within the possession of the Prosecutor, and

12 they include all written transcripts, all video, audio

13 tapes of the defendant's statements, press reports,

14 written letters, notes, ledgers, orders in particular,

15 other writings of the defendant, and I think that a

16 ruling is in order on the scope question. If the

17 Prosecutor has none of these items and is prepared to

18 state for the record that they have none of these

19 items, including orders and further videotapes that

20 they have not turned over to us, and I should say they

21 have voluntarily turned some videotapes over to us,

22 then there may be no need for an order, but -- a

23 ruling, but it seems to me unless the Prosecutor is

24 prepared to take the position that nothing we have

25 asked for is available to them or within their hands in

Page 757

1 the scope and nature in which we have asserted in the

2 pleading, then there simply needs to be a disposition

3 on the matter, Your Honour.

4 MR. NICE: I'll ask Mr. Scott deal with

5 this.


7 MR. SCOTT: May it please the court, and I

8 apologise to Judge Robinson for having to look around

9 the pole here, but the Prosecutor's position on this

10 point, Your Honour, is that this is governed by the

11 Trial Chamber's ruling in the Blaskic case on the 27th

12 of January -- well, first by the 27th of January, 1997,

13 and then actually the final order on that point being

14 dated 15 July, 1998.

15 In that ruling, the Trial Chamber there ruled

16 that prior statements, and I'm quoting, "Must be

17 understood to refer to all statements made by the

18 accused during questioning in any type of judicial

19 proceeding which may be in the possession of the

20 Prosecutor, but only such statements."

21 We have stated to the Defence and it is no

22 surprise to them, in fact there was a letter just some

23 weeks ago, that there are no such statements made to

24 any law enforcement official, any court concerning this

25 case, any police officer or investigator. We asked by

Page 758

1 letter for them to confirm if they knew of any such

2 statements to the contrary and they indicated none to

3 us. So it is our position that as construed by the

4 Blaskic Trial Chamber, that are no such statements by

5 the accused to turn over, and they apparently agree

6 that there are no such statements.

7 MR. SMITH: Your Honour, if I may address

8 that response. The Blaskic Trial Chamber's decisions

9 referred to are a change of position by that Trial

10 Chamber. We believe and have argued that the original

11 position the Trial Chamber took is correct. We believe

12 we are entitled to the material we have requested and

13 we do not concede and say nothing one way or another

14 about what sorts of materials the Prosecutor is

15 speaking about which he may have in his possession.

16 JUDGE MAY: Well, there is a duty to disclose

17 any material they are going to rely on in the trial.

18 There is a duty to disclose any exculpatory material.

19 What else could you want?

20 MR. SMITH: Your Honour, we believe that if

21 there were material that the Prosecutor had which is

22 not exculpatory but has other information in it that

23 we, in putting our case together, believe would be

24 material and relevant, but is not in their judgment

25 exculpatory, whether they choose to use it in their

Page 759

1 case or not, we believe under the language of the Rules

2 that we have an entitlement to it and the matter is

3 posed for Your Honours' disposition.

4 JUDGE MAY: Yes. Anything else that you'd

5 like to refer to?

6 MR. SMITH: Yes, Your Honour. The third

7 category of information that we requested under Rule 66

8 are prior statements of witnesses. We've been given a

9 large number of prior statements. The matter of

10 redaction, well-known, has been dealt with at length

11 and is now provided for under orders. We have the

12 material that was not redacted, that is to say where

13 there were no redactions. We have statements which are

14 redacted, but there is a date for us to be provided

15 with the unredacted versions of those statements.

16 The critical problem is one that I think was

17 discussed between Your Honour and the Prosecution a few

18 moments ago, and that is whether all of the witness

19 statements for persons to be presented at trial have

20 been presented, and I take the Prosecutor's answer to

21 be no, that has not been done, and they do not plan on

22 doing it until as late as the 11th of March at the

23 Pre-Trial conference when they are to produce their

24 witness list.

25 It would be, I think, possible for them to

Page 760

1 overprovide, that is to say to provide statements of

2 people that are likely to be used in the trial without

3 having to wait for a final decision, because of course

4 the Rules provide that as things can happen in a trial,

5 if the witnesses change as things go forward, there is

6 a provision in the Rule for notification. So it seems

7 to me that they could provide those materials at this

8 point. The particular concern I have is if there were

9 just one or two further witness statements that we

10 would get on the 11th of March, I would not have

11 terribly great concern, but I can't tell how many there

12 are, and that's very close to trial.

13 If there were a larger number, a significant

14 number of witness statements that we would not get

15 until that time, that would be a matter of great

16 concern to me, Your Honour.

17 JUDGE MAY: The Prosecution have dealt with

18 that, but perhaps you can assist by indicating,

19 Mr. Nice, an answer to that last point, which is

20 clearly material.

21 MR. NICE: Whether there will be a limited

22 number or a substantial number, I think there will be

23 quite a substantial number. I think that's

24 inevitable. And I know it isn't -- I mean, it simply

25 isn't possible to make -- no, it isn't possible to make

Page 761

1 an interim decision. The thing has to be dealt with

2 compendiously and it involves both information coming

3 to us, which has to be put together, and it involves

4 making decisions.

5 JUDGE MAY: Well, that, of course, is right,

6 but you will bear in mind that the trial date is the

7 12th of April, and there must be a reasonable time for

8 the Defence to prepare.

9 MR. NICE: Certainly.

10 JUDGE MAY: Good.

11 MR. SMITH: Your Honour, I am bound to say

12 that I am disturbed, given the already very large

13 number of witness statements provided to us, both of

14 residents in the valley and of persons outside the

15 valley and subsequent conches of witness statements to

16 find that there is still yet a very large volume beyond

17 that that they cannot provide until that point. It

18 will put the Defence in a very difficult position.

19 JUDGE MAY: The Prosecution are on notice.

20 And, of course, the Trial Chamber, it may be, will have

21 to rule on what is relevant and what isn't. The trial

22 must be within reasonable proportions.

23 MR. NICE: I don't know if that calls for any

24 response by me.


Page 762

1 MR. NICE: But let me also just make one

2 other point. As well as adding to what might be a sort

3 of first step, mental witness list, there may also be

4 subtractions from that number as well. With Your

5 Honours' point in mind, after all, if any particular

6 topic is potentially covered by many witnesses, then

7 subject to it becoming clear in cross-examination that

8 the particular topic is challenged or heavily

9 challenged, we can probably deal with that topic with

10 one or a couple of witnesses, and we would therefore

11 remove either immediately from the witness list or at a

12 later stage other people who could cover that topic.

13 So it's not just addition, it's addition and

14 subtraction, and quite a lot of the subtraction, I

15 hope, will go on from the mental list, as it were, from

16 the first idea of the list before we ever get to March

17 the 11th.

18 JUDGE MAY: Yes.

19 MR. SMITH: Your Honour, there is one last

20 category of material raised in our motion, and that is

21 the Rule 68 exculpatory material, and the Prosecution

22 has said and taken the position that they have provided

23 all of the exculpatory material available. I would

24 simply reiterate the breadth of the rule in Rule 68

25 that the material tend to suggest or tend to mitigate

Page 763

1 guilt in any way. And at one point in the explanation

2 by the Prosecutor as to steps they had gone through

3 while they, understandably and properly, did not go

4 into detail, nonetheless, it were the case that they --

5 given what they have given us, with just references to

6 our client's name in testimony from other witnesses, if

7 all they have done is a computer name search, I would

8 submit, Your Honour, that that will not have turned up

9 all the exculpatory material. And the Defence will be

10 taking the position in trial, if material comes into

11 the record that was attempted to be used or brought

12 into the record that should have been disclosed as

13 exculpatory by the Prosecutor, we will be reminding the

14 Trial Chamber and the Prosecutor the breadth of this

15 language and of the need for doing more than just a

16 computer name search.

17 That is the last matter covered in our

18 motion, Your Honour.

19 JUDGE MAY: I take it that the Prosecution

20 have in mind their duties under that Rule?

21 MR. NICE: We certainly have our duties in

22 mind. We have done considerably more than simply a

23 computer name search. I also have in mind that when

24 the Defence case is made clear by the service of their

25 Pre-Trial brief, issues will become further identified

Page 764

1 and isolated, which may both free some topics from

2 consideration as exculpatory and identify others. And

3 we are not blind or deaf to the possibility that our

4 work will have to be redirected, when the issues become

5 clear.

6 For the time, as I think the Chamber will

7 know, we have responded to a very long letter from the

8 Defence which, I think, identified some 28 -- something

9 like 28 issues they said were capable of being

10 exculpatory in nature. We replied to them, I think, to

11 the effect not that we accepted they were accurate in

12 their list of 28 categories, because we certainly

13 neither accepted nor were prepared to be bound by that,

14 but that we had read it and we had it in our mind when

15 we were conducting any of our operations of reviewing

16 material for its potential exculpatory effect.

17 That's the appropriate way to deal with it,

18 because, of course, the judgment about material being

19 exculpatory, and it is a judgment, has in the first

20 instance to be ours, with the possible potential for

21 recourse ex parte to the Chamber on marginal matters

22 should that ever become necessary. But it has to be

23 our judgment. But we have been making our judgment

24 with the Defence's extremely detailed suggestions in

25 mind. We can do no better than that, in our respectful

Page 765

1 submission.

2 JUDGE BENNOUNA (Interpretation): Mr. Nice,

3 if I understood well what you are saying, you said that

4 you respected the pertinent provisions of Article --

5 Rule 66 and 68, and that, therefore, there's no reason

6 to go any further in terms of respect of provisions,

7 Rule 66 and 68; is that what you are saying? In your

8 judgement, for the moment, of course that's a judgement,

9 especially regarding exculpatory material, you have

10 respected the provisions and the obligations that you

11 have under Rule 66 and 68? That is my question.

12 MR. NICE: And I'll deal with it in this

13 way. I think there are two parts. As to the

14 entitlement to disclosure, it's our argument, as set

15 out in the pleadings, that 66 and 68 identify

16 exhaustively that to which the Defence are entitled.

17 Sixty-eight, for exculpatory material, requires us to

18 exercise a judgment. In order to exercise that

19 judgment we have to look at whatever material we judge

20 appropriate to look at. We've gone beyond, as I've

21 said, a mere computer name search, and we have, we

22 believed, applied a very generous test. Not a generous

23 test, because -- that's an inappropriate term. A very

24 wide test, we believe, in order to ensure that anything

25 that could be judged exculpatory is turned over.

Page 766

1 I hope that helps.

2 JUDGE MAY: Did you want to add something,

3 Mr. Smith?

4 MR. SMITH: The Prosecutor is in fact

5 correct, the Defence has tried to be helpful in the

6 matter of Rule 68 by providing the Prosecutor with a

7 list of material of questions and matters as to which

8 we think material would be exculpatory. We are

9 surprised that there is no more, given the volume of

10 the material in this case and the breadth of Rule 68,

11 but we are grateful to our learned colleagues for their

12 efforts to review the material and provide us what they

13 can and to discharge their duties, Your Honour.

14 JUDGE MAY: Thank you. It's now half past

15 five and we should adjourn unless there are any other

16 urgent matters which anybody wants to raise.

17 MR. NICE: None for the Prosecution.

18 JUDGE MAY: I take it none for the Defence?

19 MR. SMITH: None for the Defence, Your

20 Honour.

21 JUDGE MAY: Thank you.

22 --- Whereupon hearing adjourned at

23 5.30 p.m., sine die.