Page 16
1 Wednesday, 19 July 2000
2 [Motion Hearing/Status Conference]
3 [Open session]
4 [The accused entered court]
5 --- Upon commencing at 4.30 p.m.
6 JUDGE MAY: Yes. Call the case, please.
7 THE REGISTRAR: Good afternoon, Your Honours. Case number
8 IT-00-39-PT, the Prosecutor versus Momcilo Krajisnik.
9 JUDGE MAY: Appearances.
10 MS. HOLLIS: Good afternoon, Your Honours. Brenda Hollis, Nicola
11 Piacente, and Julia Baly appear on behalf of the Prosecution.
12 JUDGE MAY: Yes. And for the Defence?
13 MR. NESKOVIC: [Interpretation] I'm attorney Goran Neskovic,
14 Defence counsel for Mr. Krajisnik.
15 JUDGE MAY: And the gentleman with you?
16 MR. LUKIC: [Interpretation] I'm Professor Radomir Lukic, legal
17 expert for this preliminary motion hearing.
18 JUDGE MAY: Thank you. The position is this: that, as you'll
19 see, the Trial Chamber is not fully composed. Judge Bennouna is not able
20 to be present this afternoon. We had hoped that by waiting he would be
21 able to be present, but he cannot be. The position is this: that we are
22 minded to adjourn this case until tomorrow afternoon in order that the
23 Chamber could be fully composed to hear the arguments, but we recognise
24 that that could cause inconvenience, and if it does, we'll hear counsel.
25 The only alternative would be to address arguments to the Trial
Page 17
1 Chamber as it's presently composed, and then in due course we would give a
2 ruling when we are fully composed. But it's a matter really for the
3 parties to say how their convenience lies. As I say, we would normally
4 suggest that the matter be adjourned until tomorrow afternoon in order
5 that the Chamber could be fully composed then, but we are open to
6 argument.
7 Ms. Hollis, does the Prosecution have any submissions?
8 MS. HOLLIS: Your Honour, the Prosecution has no objection to
9 either alternative.
10 JUDGE MAY: Thank you.
11 Mr. Neskovic, what is your position?
12 MR. NESKOVIC: [Interpretation] Your Honour, the Defence also has
13 no objection about the arguments being offered today.
14 JUDGE MAY: Well, which -- if I may put it to you like this:
15 Would it be more convenient to you to put the arguments today to the two
16 of us or would you rather wait and address the full Chamber tomorrow?
17 It's a matter for which you would prefer, which is more convenient to
18 you.
19 MR. NESKOVIC: [Interpretation] Mr. President, the Defence is
20 agreeable to submit arguments before the Trial Chamber as it is composed
21 today. We have no objection on the third member of the Chamber being
22 absent today, because the ruling, as we understand, is going to be given
23 by the full Chamber.
24 [Trial Chamber confers]
25 JUDGE MAY: Very well. We'll hear the arguments today and also
Page 18
1 deal with the Status Conference, which we can deal with.
2 Mr. Neskovic, there are two matters we have to deal with. The
3 first is the motion challenging jurisdiction. We have in respect of both
4 the motions, of course, very full pleadings. The matter has been fully
5 argued and the oral submissions really should be restricted to deal with
6 any matters which are not covered in the written pleadings. And of
7 course, in respect of this particular motion, the fact is that the Appeals
8 Chamber of this Tribunal has ruled on the matter and we are bound by their
9 rulings, unless there is some significant reason. Well, the Appeals
10 Chamber can -- should take a different view about it. But as far as the
11 Trial Chamber is concerned, we are bound by what they say. Now, what
12 would you like to add to your written submissions?
13 MR. NESKOVIC: [Interpretation] Mr. President, the Defence,
14 including Mr. Lukic, expert for international law, has prepared a
15 lengthier document. Obviously there are some repetitions, but there are
16 some new arguments included which we can present separately so that we
17 avoid reading the entire document, but just the new portions which we had
18 not submitted already in our motion.
19 JUDGE MAY: Very well. Perhaps you would like to summarise the
20 new arguments.
21 MR. NESKOVIC: [Interpretation] Yes. With your permission,
22 Mr. President, before starting the presentation of new arguments of the
23 Defence, I would just like to add a comment passed on by Mr. Krajisnik
24 that be assisted not only by the counsel but also by the pro bono legal
25 experts. The ruling on the 14th of July, the Defence is aware of the
Page 19
1 ruling and does not want to object to it. But pursuant to Article 16 of
2 the Statute and Rule 45 of the Rules, the experts who are supposed to
3 represent the accused would be representing him pro bono rather than at
4 the expense of Tribunal.
5 Also, we would like to point out that the existing practice of the
6 Tribunal, where the same counsel appears in various positions in various
7 trials, such as Celebici, Nikolic, and Brdjanin, to cite but one example.
8 However, we will not appeal this ruling.
9 Your Honours, first of all, I would like to point out that the
10 Defence, in its preliminary motions and in their responses to the
11 Prosecutor's replies, we have presented our arguments but will now just
12 present the new arguments and only comment very briefly on the ones
13 previously stated.
14 As regards the jurisdiction of ICTY, I would expressly ask the
15 Trial Chamber that Mr. Lukic present the arguments, because it is the
16 position of the Defence that it would be done in a much more economic
17 way. And I have to point out that the Prosecution did not oppose the
18 presence of the expert's submission today, but only pointed out the
19 reservation that only one counsel address one issue.
20 JUDGE MAY: We will hear Professor Lukic.
21 MR. NESKOVIC: [Interpretation] Thank you.
22 MR. LUKIC: [Interpretation] As just agreed, I will present some
23 new arguments relating to the issue of command responsibility from Article
24 7(3) of the Statute of the Tribunal. With respect to everything else
25 contained in our motion previously submitted and which relates to the
Page 20
1 legality of this and legitimacy of this Tribunal -- [Technical
2 difficulty] -- relating the legitimacy and legality of this Tribunal, the
3 Defence abides by the position taken previously. By presenting new
4 arguments which relate to Article 7(3) of the Statute, that is, the issue
5 of command responsibility, the position of the Defence is that the command
6 responsibility does not have the status, that is, that it is not an
7 international custom.
8 The first case of command responsibility is the case of Jamarsta,
9 is a very dubious precedent. Prior to that case, there was no legal
10 practice regarding this type of responsibility which could be taken as a
11 model by the commission which had convicted this general. The commission
12 was composed of officers but not of qualified legal experts.
13 The very development of the rules on which the Yamashita decision
14 is based was based on an analogy on certain statutes of the US legal
15 system. All these statutes without exception were not part of criminal
16 but rather other branches of law.
17 A specific case, the case in question was conducted on the basis
18 of comments and positions taken by General McArthur, one of the Defence
19 lawyers for General Yamashita. He argues this point in his book, "The
20 Case of General Yamashita." Due to judicial economy and rational
21 expenditure of our time, we will not go into all deficiencies of this
22 trial which was concluded in 1943, but the Defence raises the question of
23 whether such a case, which is full of legal shortcomings, whether such a
24 case will build a model for our future cases.
25 Other cases relative to this matter were the Nuremberg trials.
Page 21
1 The judges had an easier job of establishing the case using the precedent
2 of Yamashita. Regardless of the shortcomings of the Yamashita case, the
3 Nuremberg judges still relied on it.
4 In the case of the German supreme command, the Judges pointed to
5 the significant changes in the structure of supreme command, and in the
6 second case, the question of hostages, the Yamashita case was also used as
7 a precedent.
8 The case against General Toyoda was completed in 1949 and that is
9 the last case before now dealing with the doctrine of command
10 responsibility. After the completion of all trials against war crimes
11 committed during World War II, the United Nations undertook the
12 codification of laws developed during these trials.
13 The convention on the Prosecution of crimes against genocide was
14 adopted in 1948 and did not include the command responsibility. The
15 Geneva Conventions, adopted by the auspices of the International Red Cross
16 in 1949, also do not recognise command responsibility even though they
17 contain a number of prohibitive and normative rules. The main result of
18 those efforts is the code of crimes against humanity which was adopted by
19 the United Nations in 1954. This code also did not include command
20 responsibility.
21 The question then arises, if, as is alleged by the Prosecution,
22 command responsibility has become the case, why a document of such
23 significance never provided for it. The US manual, field manual of 27.10
24 issued by the US military institutions does provide for command
25 responsibility, but omits the concept of military justice. The question
Page 22
1 arises how is it then possible that a manual of the ground forces of one
2 of the branches of the US army recognises it but not such a lot [as
3 interpreted] institutions.
4 We believe that the judge who issued the instructions to the jury
5 in the case of Captain Medina between 1971 and 1975 which dealt with the
6 issue of command responsibility completely failed to point to the manual
7 27.10. We therefore ask: How is it possible that the judge is in
8 contravention of this military manual and is contrary to the international
9 customary law?
10 Our answer is as follows: There is no command responsibility as
11 an international custom because the judge in this case would have
12 recognised it and followed it, and as far as the provisions of the field
13 manual is concerned, the judge violated them because they are in
14 opposition to the common law provisions of criminal responsibility.
15 Your Honours, in the other two cases in which the issue of command
16 responsibility was dealt, there was no legal -- no indictments were
17 issued. The superior of Captain Medina was questioned by the court and
18 General Kostera was questioned, but no trial was ever conducted against
19 him only disciplined in 1971.
20 The next case is the case of General Vestmorlenda who was the
21 chief commander in Vietnam. This case never reached the courts, even
22 though there were indicia that there were elements of his command
23 responsibility involved. However, the national security advisor
24 disallowed the trial and instead, ordered an investigation which acquitted
25 General Vestmorlenda.
Page 23
1
2
3
4
5
6
7
8
9
10
11
12 Blank page inserted to ensure pagination corresponds between the French
13 and English transcripts.
14
15
16
17
18
19
20
21
22
23
24
25
Page 24
1 In 1977, additional protocols to the Geneva Conventions were
2 adopted and for the first time in history, they codified the command
3 responsibility. However, the additional protocols all mention the
4 disciplinary and criminal responsibility based on the omission to act but
5 only in a case to case basis.
6 The Christian -- members of a Christian phalanx in Lebanon burst
7 into the camps in southern Chatila and carried out a massacre of refugees
8 and they were under the orders of the -- under the control of the Israeli
9 forces. The Cahan Commission investigated the case and ordered that
10 several generals be disciplined, but no criminal proceedings were ever
11 initiated against these soldiers.
12 In 1995, the Canadian command of forces which were stationed in
13 Somalia were also faced with a case when the local population was looking
14 for food and some crimes were committed as a result of it. The unit was
15 pulled from the duty in Somalia and we have no end results of this
16 investigation. There was an investigating commission which determined
17 that the Minister of Defence in collusion with some other public officials
18 tried to silence the whole case. This was followed by the resignations
19 first of the Minister, and then the Chief of General Staff. Both of them
20 implicitly recognising their responsibility for it.
21 After the Toyoda case, the first next case dealing with the
22 command responsibility were -- are the cases of Delalic and Kvocka, both
23 before this Tribunal. The judgements in either of these cases are still
24 not final. If we assume that they will become final in the course of this
25 year, it would mean that 51 years had elapsed since the last case of
Page 25
1 command responsibility was judged, that is against General Toyoda in
2 1951.
3 If we take into account the generally-held view that the customary
4 law presupposes the awareness of the legal force of such a law, the
5 Defence questions how it is possible that something is perceived as
6 customary if it had not been practised for over half a century.
7 The command responsibility started in 19 -- was created in 1946
8 and it was used until 1949 in cases which have often been described as the
9 justice of the victors. If this command responsibility statute was only
10 practised for three years, and that it established an international norm,
11 the question arises whether this practice, in these 51 years of
12 non-practice, is still valid as custom even if at one point it was
13 considered a custom.
14 All cases of omission to act which took place between 1949 and
15 2000 have ended with disciplinary or political consequences. The
16 additional protocols of Geneva Conventions is the only document which
17 recognises command responsibility for omissions to act and it is this only
18 document that is in existence. It defines these command responsibilities,
19 either criminal or disciplinary, based on the case.
20 Since this statute has not been practised for 51 years and the
21 disciplinary and the political responsibility have been practised, the
22 Defence submits that the command responsibility does exist as an
23 international custom, but only as a disciplinary statute. Even if there
24 was an international practice which implied criminal responsibility and
25 criminal sanctions, and we are referring to the period between 1946 and
Page 26
1 1949, this statute has certainly become obsolete by now and it has also
2 changed.
3 Mr. President, these are the new arguments relative to the status
4 of command responsibility.
5 JUDGE MAY: Thank you, Professor Lukic.
6 JUDGE ROBINSON: Professor, in your historical review --
7 MR. LUKIC: Just a moment, please. I have some problems.
8 THE INTERPRETER: Microphone for the counsel, please.
9 [Technical difficulty]
10 JUDGE ROBINSON: I think, Professor, that in your historical
11 review, you didn't mention the Rome Statute establishing the International
12 Criminal Court, perhaps because it has not yet entered into force. But it
13 is a very significant instrument, having been signed by well over one
14 hundred countries. That also establishes and reflects command
15 responsibility. Would you say that when the Rome Statute addressed the
16 concept of command responsibility that that was a new concept, that that
17 was new law?
18 MR. LUKIC: [Interpretation] In my historical survey of the
19 evolution of command responsibility, we did not consider the Rome Statute
20 and the new permanent International Criminal Court, because it goes beyond
21 the time frame covered by the indictment of our client. Because all that
22 we said concerns the violation of the fundamental principle of criminal
23 law, nullum crimen sine lege, nullum penae sine lege. The Rome Statute
24 appeared years after the period of time when it is alleged that our client
25 committed certain criminal acts.
Page 27
1 JUDGE ROBINSON: May I interrupt you, Professor. But of course,
2 although it appears after the time of the commission of the offence, if
3 what is in the Rome Statute reflects customary international law, then
4 that would not matter if the custom had emerged prior to the commission of
5 the offence.
6 MR. LUKIC: [Interpretation] Our concept is, as you have seen, that
7 this question could not be considered as an international custom because
8 it does not meet the basic conditions for a particular behaviour to set
9 up -- to become a practice that will then become the source of
10 international law. And on the basis of your question and my answer, I
11 think that the Rome Statute is written law, is the law of treaties, and it
12 is something quite different from what we are claiming, and that, in point
13 of fact, it is a novel approach and a novel concept as against the
14 previous period of time.
15 JUDGE ROBINSON: Thank you.
16 JUDGE MAY: Ms. Hollis, if you want to reply, perhaps briefly, to
17 anything said today, of course you can.
18 MS. HOLLIS: Your Honour, we believe that our written reply covers
19 these new arguments. We have nothing further to add on that, unless Your
20 Honours have questions.
21 [Trial Chamber confers]
22 JUDGE MAY: No. Thank you.
23 We turn now to the second motion. This is a motion on the part of
24 the Defence alleging defects in the form of the indictment.
25 Mr. Neskovic, we have your submissions again and a response from
Page 28
1 the Prosecution and your further submissions. It must be said that a
2 great deal of the matter you raise really relates either to matters of
3 evidence, because you'll appreciate there's a distinction between what is
4 in the indictment and what is a matter properly covered by evidence or by
5 matters which are really not matters of detail which the Prosecution
6 should be required to go into in relation to an indictment.
7 However, you do, at the latter part of your motion, ask for
8 clarification of the criminal responsibility alleged against your client,
9 relying on the decision, in particular, of this Trial Chamber -- it's open
10 to you to rely on it -- in Dosen and Kolundzija. Now, those are the
11 matters you cover. If there's anything new you want to add, then of
12 course you may.
13 MR. NESKOVIC: [Interpretation] Your Honours, you have already
14 answered. I was about to, once again, point out the Dosen and Kolundzija
15 annex regarding the form of the indictment, because when we analysed the
16 response to the Defence's motion, we noticed, amongst other things, that
17 the Prosecutor points out that the political officials in the indictment,
18 their alleged individual responsibility needs not to be defined in
19 relation to -- pursuant to Article 7(1) and (3), as it is described,
20 allegedly, for so-called direct perpetrators of acts.
21 This position we find rather strange, so the Defence asks whether
22 different rules apply to political officials in the doctrine of criminal
23 law. Are the political officials, because they are engaged in politics,
24 proclaimed guilty in advance? The Tribunal should not allow the
25 Prosecutor to file indictments on political grounds. Indictments are acts
Page 29
1 and law, and therefore they must abide by legal norms.
2 The Prosecutor claims that my client, Mr. Krajisnik, is guilty
3 because he was the President of the parliament of Republika Srpska,
4 because, according to the Prosecutor, the Assembly of Republika Srpska is
5 also a form of a criminal organisation, and likewise, Mr. Krajisnik is, by
6 extension, a criminal, even though the Defence is aware that a large
7 number of allegations in the indictment is a matter for the trial to be
8 resolved.
9 Nevertheless, the Defence should like to point out the latest
10 Tribunal's practice in the case against Krnojelac. In that case, the
11 Chamber ruled that the Prosecutor should rephrase the indictment in the
12 spirit of the principles which govern all the legal systems; that is, in
13 cases when the Prosecutor alleges that somebody is guilty because he
14 belonged to an alleged criminal organisation, then their participation,
15 their membership, must be proven beyond any reasonable doubt.
16 Therefore, if the Prosecutor alleges in the indictment that my
17 client, because he was a member of the Serb Democratic Party, the SDS, and
18 because he was the president of the lawfully elected parliament, that he
19 is, because of that, therefore responsible, allegedly, for illegal acts,
20 then it must be brought into harmony with legal standards applicable to
21 the indictments.
22 However, the Prosecutor omitted to inform the accused with the
23 details of his alleged criminal responsibility deriving from his office or
24 the specific political institution. In other words, if the accused is to
25 enjoy his right and prepare his Defence properly, then the Prosecutor
Page 30
1 must, beyond any reasonable doubt, specify the criminal responsibility of
2 the accused. The Prosecutor has omitted to do that, and the Defence
3 believes that the Chamber should inform the Prosecution that the same
4 legal standard should be applied to political officials as to all other
5 individuals.
6 On the basis of the above said, in our written motions and in our
7 response, and today the Defence once again respectfully submits that in
8 this case the standard be applied -- the standard introduced by both this
9 Chamber and other Trial Chambers of this Tribunal, such as, for instance,
10 in the decisions on preliminary motions in Dosen and Kolundzija case, and
11 that the Prosecution be ordered to prepare an annex that would make
12 part -- an integral part of the indictment so as to specify there the
13 following.
14 I do not want to repeat all that, Your Honours, because we already
15 pointed it out in our first preliminary motion. It has to do with, the
16 first column, the exact form of participation, instigation, issuance of
17 orders, and so on and so forth; and the second one, the precise time frame
18 and locality for the criminal acts; the third is classification of
19 criminal offences pursuant to our Tribunal Statute; and the fourth column,
20 precise form of individual criminal responsibility pursuant to Article
21 7(1) and 7(3), or both of them.
22 The Defence believes that such an approach of the Prosecution
23 would contribute to removing most of the vague points in the indictment
24 and that such an amended indictment would meet the standards in Article
25 18(4) of the Tribunal Statute and Rule 47(C) of the Rules of Procedure and
Page 31
1
2
3
4
5
6
7
8
9
10
11
12 Blank page inserted to ensure pagination corresponds between the French
13 and English transcripts.
14
15
16
17
18
19
20
21
22
23
24
25
Page 32
1 Evidence.
2 I should also like to touch upon, with Your Honour's leave: In
3 paragraph 78 of the answer to the preliminary response to the preliminary
4 form of the indictment, the Prosecution says, and I am quoting:
5 "As to the accused's complaint regarding use of the concept of A
6 Greater Serbia, it is an appropriate characterisation which is consistent
7 with the Prosecution's theory of this case."
8 The indictment is basically the position of one party to the case
9 that allegedly describes and the liability on the part of the accused, and
10 thus needs not be impartial. Certainly the use of the term in the
11 indictment is not inflammatory or unreasonable. The Prosecution therefore
12 denies that it has attempted to mislead.
13 However, the rub of the problem is that the Prosecution ascribes
14 the concept of Greater Serbia a completely wrong meaning, that is, a
15 criminal concept in itself which automatically presumes ethnic cleansing,
16 ethnic persecution, and so on and so forth. Even though repeatedly in the
17 response to the motion regarding the former indictment, the Prosecution
18 defends its right to arbitrariness and generalities, claiming that it is
19 not bound to explain the meaning of individual terms that it uses in the
20 indictment, that it is not bound to explain its concept and the like.
21 The Defence considers that the Prosecution has simply gone too
22 far, because it requests the alleged right to misuse, that is, complete
23 distortion of the true meaning of a term. For instance, "the Greater
24 Serbia," the Prosecution does not treat this term within its historical
25 concept in which that term emerged but views it from some different point
Page 33
1 of view or within the context of different impression and propaganda.
2 For instance, Professor Gart, on 28th of June, 1996, in a case
3 before this Tribunal, IT-95-T-61 -- this is the case of the Prosecutor
4 versus Karadzic and Mladic. I believe it is page 38 of the French
5 version. It says: "The notion of the Greater Serbia does not explicitly
6 mean ethnic cleansing." However, on the basis of what happened in
7 Croatia, one can see that it also meant that. With all due respect, even
8 Professor Gart makes a mistake, and a double one. What happened in
9 Croatia, that is, military operations of the Croatian army, called Tempest
10 and Storm, definitively refute Professor Gart.
11 Secondly --
12 JUDGE MAY: Mr. Neskovic, I'm going to interrupt you. These are
13 really matters for argument and evidence. They're not matters for the --
14 for an indictment or for argument about an indictment.
15 MR. NESKOVIC: [Interpretation] Thank you, Your Honours. I was
16 about to say that the Defence thought that this was a matter for the
17 trial, but that it is because of such thesis' that the indictment has a
18 slanted view. I have nothing else to add regarding the form of the
19 indictment, and I should like to suggest, with your leave, to take due
20 note of the arguments of the Defence and to order the Prosecution to
21 prepare the annex and amended indictment, as specified in our motion and
22 our response -- and the Defence's response to the Prosecution's response.
23 JUDGE MAY: Thank you.
24 [Trial Chamber confers]
25 JUDGE MAY: Ms. Hollis, the argument being put forward in relation
Page 34
1 to clarification is that what appears in the indictment from time to
2 time -- and one can see it, for instance, in paragraph 10 -- is a very
3 generalised allegation which essentially repeats the words of the
4 Statute. For instance: "That the accused, acting individually or in
5 concert with others, planned, instigated, ordered, committed, or otherwise
6 aided and abetted the planning, preparation, or execution of the
7 destruction, in whole or in part, of the religious group."
8 Now, is there any reason why you shouldn't specify what it is that
9 you say this accused did in terms of planning, instigating, ordering,
10 committing, or otherwise aiding and abetting? What is it that you allege
11 that he did? And necessarily, therefore, what is the case that he has got
12 to meet? Now, is there any reason why that shouldn't be set out at this
13 stage in an indictment, or, as we did in Dosen and Kolundzija, order an
14 annex to be attached to the indictment, setting out -- the case I think
15 you were in -- setting out the nature of the allegations in the form of
16 participation? Is there any distinction between that case and this?
17 MS. HOLLIS: Yes, Your Honour. First of all, Your Honour, the
18 Prosecution submits that the modes of liability that are set out in
19 Article 7(1) are, in fact, legal characterisations of conduct and what we
20 set forward in the indictment is conduct. It is for the fact-finder to
21 determine the legal characterisations of that conduct so that we would not
22 elect between the modes of liability. That's the reason that we don't
23 elect between the modes of liability.
24 In terms of setting out the conduct, we suggest that we have set
25 it out with sufficient particularity in this indictment insofar as we have
Page 35
1 indicated in this indictment that we are dealing with the very highest
2 level of accused whose participation was at the very highest level.
3 The conduct of this accused is set out throughout this indictment
4 in various paragraphs. Basically that conduct being his participation in
5 various organisations or bodies which, themselves, had direction and
6 control over other bodies and organisations and entities which led to the
7 commission of these crimes. We have indicated what bodies and
8 organisations and entities we allege he was a member of that led to this
9 liability.
10 We have indicated that he was one of the leading members of the
11 SDS and that he and Karadzic, in particular, were the two leading policy
12 members -- policy makers of the SDS, and that it was the SDS that created
13 this concept of this Greater Serbia or at least revitalised it. And it
14 was his participation this in the SDS including the main board that the
15 structures were set up that were the means by which these crimes were
16 committed were the vehicles, if you will, through which these crimes were
17 committed.
18 That also, he was a member of the Presidency and a member of the
19 National Security Council and in that capacity more directly, perhaps,
20 than through the SDS, in that capacity, he had control over Bosnian Serb
21 forces which we have defined. He also had control over the SDS and
22 government authorities who were the ones who, as we go down the layers of
23 control and direction, ultimately are the ones who, if you will, in
24 quotation marks, "committed the crimes" that are charged in this
25 indictment.
Page 36
1 If we look at some of the paragraphs that speak about this in
2 terms of the SDS, his membership and the functions of the SDS in this
3 overall plan of ethnic cleansing which is the plan that we set forward in
4 the indictment. If you look at paragraph two, it indicates his membership
5 on the main board. If you look at paragraph 12, paragraph 24, paragraph
6 28, paragraph 41, paragraph 42, paragraph 45, paragraph 46, paragraph 47,
7 48, 49, they set out the various functions of the main board. They set
8 out the involvement of the SDS of which we say he was in control in the
9 crimes that were committed.
10 If we look at the control over the Bosnian Serb forces through the
11 Presidency and through the National Security Council, if we look at
12 paragraphs 7, paragraph 8, paragraph 14, 16, 20, 27, 47, those paragraphs
13 also make reference to the way in which this entity was involved in the
14 crimes that were committed in Bosnia-Herzegovina within the time period
15 alleged, and also his membership in the various parts of these
16 organisations.
17 We believe, in terms of his conduct, we have set that forward in
18 the indictment itself. In terms of looking at his membership in the
19 Bosnian assembly, if we look at paragraphs 29, 48 and 54, we talk about
20 his membership there and we also indicated in the indictment the kinds of
21 actions that were carried out through this assembly of which he was the
22 president, in our view, as the president was able to be a leader and
23 director of what happened. So in terms of conduct, we believe that we
24 have set it out in various paragraphs throughout the indictment and that
25 that is sufficient to put this person on notice of what it is he needs to
Page 37
1 defend against.
2 In terms of the second question, Your Honour, and that has to do
3 with setting out a schedule, we would suggest, Your Honours that there is
4 a very critical difference between this case and cases at the level of
5 Kolundzija or Dosen who were shift leaders in one camp, in one opstina
6 during a certain period of time.
7 Our theory is quite simple. For this accused, he was in charge of
8 everything that happened in that country during the time period alleged
9 because of his participation in these various organs, because of his
10 association with other members of these organs, these bodies, these
11 entities. So we do not need the particularity that we would need with a
12 low-level offender. We look, instead, at categories of his involvement,
13 at categories of offences of which he is guilty, at categories of victims,
14 at categories of perpetrators.
15 When it comes to the time frames alleged, we have put those in the
16 indictment. We also put the places in the indictment. And we believe
17 when you look at proximity to the people who were actually torturing,
18 beating, killing and carrying out the operations in the camps and
19 detention facilities, when we look at his proximity to that, it is far
20 enough removed that it is the categories which are the most instructive
21 because it is the categories of the offenders which make him liable. They
22 must fall within the Bosnian Serb forces or the members of the SDS or the
23 government authorities. But as to which individual it is, the only
24 relevance the individual has is whether they fall within those
25 categories. So that we suggest that indeed for this level of offender, we
Page 38
1 have provided sufficient particularity and that a schedule would, in fact,
2 be our proof of his culpability, would not be an indictment, material
3 facts, if you will.
4 JUDGE MAY: Thank you.
5 Mr. Neskovic, is there anything you'd like to say?
6 MR. NESKOVIC: [Interpretation] The Prosecutor more or less repeats
7 the argument she gave in her response to our motion and we -- and the
8 Defence disagrees with them.
9 I should like to add two things. First, in paragraph 22, the
10 accused is charged that he had control over SDS boards and Crisis Staffs.
11 However, it needs to be said that the SDS was the Serb political party.
12 Nobody has so far, not even some body of the International Community has
13 proclaimed the SDS a criminal organisation or its activities as criminal
14 activities.
15 As for the never-failing invariable linkage, association of the
16 accused with Dragan Karadzic, we need to say that in paragraph 22 in --
17 about the rulings on the motions in Kvocka case, the Chamber took over
18 certain paragraphs from the Krnojelac decision and decided that the
19 Prosecution could not name those who were participating directly in those
20 crimes, but that it would suffice to indicate that category and their
21 position as a group.
22 The Defence believes that the same thing should be done in this
23 case too, because in paragraph 30 of the answer, the Prosecutor has
24 already reduced the term with others and said "with other leaders. " So
25 the Prosecution has thus shown that it is possible to be more specific.
Page 39
1 And as for the paragraph 5, that he was engaged in these activities alone
2 or with -- together with Dragan Karadzic, evidently the Prosecution only
3 intends to emphasise the activity of the accused alleging that he was a
4 close associate of Dragan Karadzic.
5 The Defence does not know because the history of the criminal law
6 does not know of the case that the criminal activity on somebody is being
7 proven by his association of a person who has not been pronounced guilty
8 or brought to trial. We, therefore, do not think that this paragraph has
9 any legal grounds and, again, we believe that the Prosecution should
10 attach an annex to the indictment because whatever the case, the
11 Defence -- it would be easier for the Defence to prepare the Defence if
12 there is such attachment.
13 [Trial Chamber confers]
14 JUDGE MAY: We will consider these matters and give our rulings on
15 both motions in due course.
16 I turn next to the Status Conference which is to follow the
17 Motions Hearing, and the purpose of that is to review the position as far
18 as the case is concerned and also as the Rule provides to review the
19 conditions of detention.
20 We will begin by reviewing the position as far as the case is
21 concerned and perhaps, Ms. Hollis, you can assist us with how far things
22 have got.
23 MS. HOLLIS: Yes, Your Honour.
24 Your Honour, we are in the process of building binders for the
25 witnesses that have been identified to date through the confirmation
Page 40
1
2
3
4
5
6
7
8
9
10
11
12 Blank page inserted to ensure pagination corresponds between the French
13 and English transcripts.
14
15
16
17
18
19
20
21
22
23
24
25
Page 41
1 materials so that we can complete our disclosure as to those witnesses.
2 We are also in the process, which will be a somewhat lengthy process, of
3 reviewing and collating the documentary evidence in this case that may be
4 of relevance in this case and may be subject to disclosure under the
5 various rules of the Tribunal.
6 As we find that evidence and review it, we are also putting that
7 also into categories so we can determine what we will disclose. We note
8 in that regard that it's interesting that the Rules require that witness
9 statements be disclosed, that the -- any statements of the accused be
10 disclosed, but when it comes to documentary evidence that are not in the
11 form of witness statements, we are to provide a list but not by the Rules,
12 themselves, on our own to provide disclosure of those documents.
13 The Prosecution will be reviewing its position in that regard with
14 a view to expediting the trial because we believe that quite a few
15 documents will be of relevance. And we will, to the extent we believe we
16 can do so, will provide the documents themselves in advance as part of our
17 disclosure even though the Rules, themselves, do not exactly require
18 that. But we believe it would unduly delay the trial proceeding if we
19 were not to act in that way.
20 We have provided some additional documentary disclosure to the
21 Defence. Since counsel have been very gracious with us in notifying us of
22 what materials he has not received or has not been in legible form among
23 the receipts that we have provided to him, and we are undertaking to
24 provide him with material that either was inadvertently not provided or to
25 giving him a second copy in case somehow it was mislaid in translation.
Page 42
1 So we are proceeding with disclosure in that regard.
2 We are also, in our own case, reviewing additional witnesses that
3 may be needed for the case. Of course, as Your Honours are aware, we have
4 a very large crime base and witnesses who are directly relevant to the
5 crime base will constitute a large part of our case. In addition to that,
6 however, there are witnesses who could perhaps expedite the case by
7 providing some sort of summary or overview evidence. We are reviewing
8 that possibility. We may also feel the need to call upon experts and
9 international personnel who may have had contact with this accused or
10 others in areas of discussion that are relevant to this case. So we are
11 reviewing the needs for those witnesses, and we are attempting to go line
12 up interviews with those so that we can disclose statements of those
13 witnesses as well.
14 So we are, at this point in time, Your Honours, organising the
15 case in a way that will facilitate both our preparation for the case and
16 will facilitate comprehensive disclosure to the Defence.
17 JUDGE MAY: As far as the witnesses are concerned, when do you
18 anticipate finalising disclosure of the relevant statements?
19 MS. HOLLIS: We don't think that we will be able to do that much
20 before the end of this year, the beginning of next year, given the fact
21 that some of the people we need to interview are very difficult to get on
22 their schedules. But we hope that we will be able to provide a large
23 amount of the crime base disclosure by the end of the year.
24 JUDGE MAY: Is there any reason why you shouldn't disclose, as
25 early as possible, the material which you do have which you know you're
Page 43
1 going to rely on?
2 MS. HOLLIS: Of course not, Your Honour.
3 JUDGE MAY: And any additional material when you have it at hand.
4 MS. HOLLIS: That's what we're attempting to do, Your Honour, that
5 as we accumulate it, as we review it, we will disclose it so that it will
6 be a continuing process and the Defence will not be in the position of
7 receiving hundreds of pages at one time.
8 JUDGE MAY: As far as the documents are concerned, I understand
9 the process you are undertaking. It will certainly be of assistance to
10 the Trial Chamber if only those documents which are really relevant are
11 relied on as opposed to putting in anything which might possibly be
12 relevant. It is a very useful exercise for the Prosecution at the outset,
13 if I may say, to identify those documents on which they are really going
14 to rely rather than having a flood of documents.
15 MS. HOLLIS: Yes, Your Honour, and that is really the goal of this
16 comprehensive search that we're doing now so that we can be sure that we
17 have identified all of the documents that will be of most assistance to
18 the Trial Chamber in the presentation of our case, and certainly this is a
19 very large case, as Your Honours are aware.
20 Having said that, we certainly do agree that we must take it upon
21 ourselves to make the best use of the fewest number of documents and
22 witnesses that we can possibly use and still prove our case. So we're
23 looking at that approach as well.
24 JUDGE MAY: Is that the end of the year for the documents?
25 MS. HOLLIS: Your Honour, the documents will be longer than the
Page 44
1 end of the year because of the hundreds of thousands of pages that we're
2 looking at in terms of searches. We are putting in place a very
3 comprehensive programme to do that which will involve a large number of
4 additional personnel and hardware and software. So we will not be in a
5 position to say we have completed our search and review of the documents
6 by the end of the year.
7 JUDGE MAY: There are, of course, problems about getting cases on
8 here, but if it's right that you're not going to be ready for trial by the
9 end of the year, when are you going to be ready?
10 MS. HOLLIS: Your Honour, we believe that we will be ready to
11 proceed to trial June or July of next summer.
12 JUDGE MAY: That's a year's time.
13 MS. HOLLIS: Yes, Your Honour.
14 JUDGE MAY: Well, I think you should look at that again. I don't
15 know what the position is going to be, of course, about court
16 availability, but as far as the Prosecution are concerned, it will mean
17 that this accused would have been in custody for 14 months before the
18 Prosecution will be ready for trial.
19 MS. HOLLIS: Correct, Your Honour. And Your Honour, we believe,
20 given the complexity of this case, the amount of evidence involved, that
21 that would not be an unduly long length of time. And should Your Honours
22 wish any sort of written submission on that, we're prepared to do so, but
23 we believe that that would be -- that would not be a violation of a speedy
24 trial. We will look at it again.
25 We have been looking at it for the last several months as we have
Page 45
1 been looking at our resources, our other commitments, what is needed for
2 this. And so the time frame that I am giving you is already a considered
3 time frame, but we certainly will review that again.
4 JUDGE ROBINSON: Ms. Hollis, as a matter of principle, 14 months
5 can't be considered a reasonable and acceptable time frame for
6 preparation.
7 MS. HOLLIS: Your Honour, we suggest that it can, in that, indeed,
8 in the international case law, there is support for that and we believe
9 that it would be a reasonable period of time.
10 JUDGE ROBINSON: We are under the scrutiny of the international
11 community.
12 MS. HOLLIS: Yes, Your Honour, we know that.
13 JUDGE ROBINSON: If that is a reasonable time frame, it has
14 certain implications, of which account will have to be taken.
15 MS. HOLLIS: We are aware of the some of the implications that you
16 may be considering, Your Honour, and we are prepared to address those with
17 that in written form as well.
18 JUDGE MAY: Give us some idea at this stage of the scope of the
19 trial that you envisage.
20 MS. HOLLIS: Yes, Your Honour. And at this stage, Your Honour, we
21 are speaking from the standpoint of having to fully litigate these issues,
22 because other than, perhaps, an armed conflict existed, there is no
23 stipulation or admission at this point, and that we are going to have to
24 fully litigate it in terms of the crime base with eyewitnesses.
25 We're looking at approximately 42 municipalities involved in a
Page 46
1 pattern of criminal activity. We're also looking at specific alleged
2 camps and specific alleged killings, and we believe, in order to bring
3 forward even the crime base with no overlap on our witnesses, we're
4 looking at a minimum of four witnesses per municipality, and so we're
5 looking at something like 160 witnesses.
6 JUDGE MAY: Let me interrupt you there. We have some experience
7 in this. The way in which it can be approached, I suggest, is in this
8 way, and which you might like to think about, is that: For each of these
9 municipalities or camps or alleged offences, you think in terms of calling
10 a witness, your best witness, and putting that witness on and seeing what
11 the cross-examination, if any, is. And in that way, it may be that you
12 can reduce drastically the number of witnesses. It may be necessary to
13 call more; it may not be.
14 MS. HOLLIS: Your Honour, in coming up with that number per
15 municipality, that was the approach we had planned to take. Some of the
16 things that we can do to expedite the trial -- there's really nothing we
17 can do on our own to expedite it. We can propose various modes of
18 presentation of evidence, but the Trial Chamber must accept those. For
19 example, certainly we can use affidavits where we can get a suitable
20 document from certain countries, but that's corroboration only.
21 We can look at the use of prior testimony or prior statements as
22 part, at least, or perhaps all of direct examination, but that depends on
23 whether the Trial Chamber will allow. Judicial notice is a possibility to
24 speed up things, but that is whether the Court will take judicial notice.
25 If the Trial Chamber were to find, as a matter of law, certain
Page 47
1 jurisdictional elements at the beginning of the trial --
2 THE INTERPRETER: Could the counsel slow down, please.
3 MS. HOLLIS: -- that's within the province of the Trial Chamber
4 after hearing the Defence's position. Stipulations and admissions also,
5 but that depends on the Defence.
6 So we are looking at those sorts of things, but we feel it's
7 incumbent upon us at this point in time, even using a minimalist approach
8 of witnesses, to put Your Honours on notice of what we feel should be
9 necessary should none of those things be available to us. So that, if you
10 will, we have before you our estimate of what it would take if none of
11 those shortcuts are available, so that there is no surprise later if, in
12 fact, that is what it takes. But we are looking at the kinds of things
13 you have mentioned, Your Honour.
14 [Trial Chamber confers]
15 JUDGE MAY: You say four witnesses for the 42 municipalities
16 each. How many other witnesses have you in mind?
17 MS. HOLLIS: Your Honour, we are also looking at the possibility
18 of using overview witnesses or summary witnesses, expert witnesses. We're
19 looking at the need, perhaps, for expert witnesses regarding the political
20 spectrum, SDS, the Assembly, perhaps, to put on expert evidence about
21 that. Also expert evidence relating to the military, the Main Staff, the
22 chain of command, how it relates to the Presidency, to the National
23 Security Council, how information and orders and directives flow up and
24 down.
25 We also, of course, are looking at the possibility of expert
Page 48
1 evidence for police, and we are looking at the possibility of expert
2 evidence in the area of demographics, given the fact that we do have
3 genocide as a charge. And we're looking, as I said earlier, as witnesses
4 who, through their various associations and international bodies, such as
5 UNPROFOR or other organisations, would have evidence relevant to this
6 proceeding regarding both the accused's direct participation and their
7 involvement with bodies at meetings where perhaps he was not present but
8 he was a member of that body collectively.
9 So given that, we're looking at as many as perhaps 50 or 60 of
10 those witnesses. And again, this is an estimate now, without us being
11 able to have completed our interviews. We don't wish to have a longer
12 trial than is necessary; however, we are very cognizant of our requirement
13 to prove our case beyond a reasonable doubt.
14 JUDGE MAY: So giving the best estimate that you can at the
15 moment, how long do you anticipate the Prosecution case will take?
16 MS. HOLLIS: Again, Your Honour, if we look at a fully litigated
17 case, maximising witness testimony, including crime base or eyewitnesses
18 to these crimes, we believe that our case would take over a year. And
19 that's assuming that we would have five days a week of being able to put
20 on evidence five to six hours a day.
21 JUDGE MAY: Well, clearly you will be having in mind, as you've
22 said, the drafting of admissions or stipulations to see whether matters
23 can be expedited in that way.
24 MS. HOLLIS: Yes, Your Honour, very much.
25 JUDGE MAY: We clearly will have to return to this whole matter
Page 49
1
2
3
4
5
6
7
8
9
10
11
12 Blank page inserted to ensure pagination corresponds between the French
13 and English transcripts.
14
15
16
17
18
19
20
21
22
23
24
25
Page 50
1 within not too long a distance and have another conference in order to see
2 how we can expedite this trial.
3 Are there any other matters you want to raise?
4 MS. HOLLIS: No, Your Honour. I find myself the bearer of news
5 that Your Honours don't want to hear on many occasions, but I believe it's
6 important for us to put forward for you our recent assessment of what it
7 takes, and we have no further matters at this time, Your Honour.
8 JUDGE MAY: Thank you.
9 Mr. Neskovic, at this stage there is really little that you can
10 assist us about, but we'll hear, of course, any submissions you want to
11 make. It may be of assistance if, once the Prosecution have drafted any
12 possible admissions or stipulations, as they're called in some
13 jurisdictions, whether there aren't matters which can be agreed between
14 the parties, matters of background and that sort of thing, which would
15 shorten the trial and would certainly shorten the time necessary getting
16 to trial. But at this stage it's too early, of course, for anything like
17 that to have been arranged.
18 Now, is there anything you would like to raise? We'll deal with
19 the conditions of detention in due course, but this is merely to review
20 the progress of the case.
21 MR. NESKOVIC: [Interpretation] In this specific case, I have
22 nothing special to add except to confirm that the Defence counsel has been
23 meeting with the Prosecutor's side and that we were provided a binder of
24 material which is peripheral, really, and we would urge the Prosecution to
25 speed up the process so that we could start preparing. On the other hand,
Page 51
1 we have initiated our process of gathering material. And as far as the
2 conditions of detention are concerned, we will definitely file a motion
3 for provisional release, but that will come in due course.
4 [Trial Chamber confers]
5 JUDGE MAY: We are going to go into -- unless there's anything
6 more you want to say about the case, I propose to go into private session
7 to deal with any matters concerning the conditions of detention. But is
8 there anything further you want to raise about the case or the progress of
9 the case?
10 MR. NESKOVIC: [Interpretation] For now, no, Mr. President.
11 JUDGE MAY: I think before we go into private session we should
12 fix a date for the next Status Conference, which I will do with the
13 assistance of the legal officer, saying that it should be sooner rather
14 than later, given what we've heard.
15 [Trial Chamber confers with legal officer]
16 JUDGE MAY: Well, I'm told that a suitable date would be available
17 on the 27th of September, during the afternoon. I think that is a time
18 for us to review again the progress of this case. Two months will have
19 elapsed, and I hope that some progress will have been made, which we can
20 then deal with.
21 If there are no other matters to be dealt with in open session, we
22 will go into private session.
23 [Private session]
24 (redacted)
25 (redacted)
Page 52
1
2
3
4
5
6
7
8
9
10
11
12
13 page 52 redacted – private session
14
15
16
17
18
19
20
21
22
23
24
25
Page 53
1 (redacted)
2 (redacted)
3 (redacted)
4 (redacted)
5 (redacted)
6 (redacted)
7 (redacted)
8 (redacted)
9 (redacted)
10 (redacted)
11 (redacted)
12 (redacted)
13 (redacted)5
14 (redacted)
15 (redacted)
16 (redacted)
17 (redacted)
18 (redacted)
19 (redacted)
20 (redacted)
21 (redacted)
22 (redacted)
23 --- Whereupon the Motion Hearing and Status
24 Conference adjourned at 5.56 p.m.
25