Tribunal Criminal Tribunal for the Former Yugoslavia

Page 10192

1 Wednesday, 9 March 2005

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 9.15 a.m.

5 JUDGE ORIE: Madam registrar, would you please call the case.

6 THE REGISTRAR: Case Number IT-00-39-T, the Prosecutor versus

7 Momcilo Krajisnik.

8 JUDGE ORIE: Thank you, Madam Registrar.

9 First of all, the Chamber would like to apologise for the late

10 start. It had all kinds of reasons. Before -- we indicated yesterday

11 rather late in the afternoon that there would be some additional questions

12 to Ms. Hanson, but before doing that there is still a decision to be

13 delivered for the next witness. I'll deliver that decision. I take it

14 that although the motion has been filed confidentially and the response

15 was confidential that the decision could be delivered in open session

16 because we of course left out whatever identifying matters. So I'll first

17 give a decision on Witness 646.

18 This is a decision on the Prosecution's motion for protective

19 measures for Witness 646. The motion was filed confidentially on the 17th

20 of February, 2005. The Prosecution requests an order for Witness 646 to

21 testify in closed session. According to the Prosecution, this measure is

22 justified by the fact that due to the sensitive nature of his testimony,

23 the witness and members of his family face exceptionally serious risks to

24 their safety should his identity be revealed to the public. Moreover, the

25 witness feels this issue shouldn't become known that he has testified

Page 10193

1 before this Tribunal.

2 In its response of the 24th of February, 2005, the Defence

3 requests that the Chamber dismiss the motion. It states that to allow a

4 witness to give testimony in closed session, the Chamber must establish

5 that the witness or his family faces a real risk to their safety, it also

6 argues that the Chamber must not base its decision solely on the

7 presentations by the parties. The Chamber must find that there is some

8 objective basis for the fear of the witness before it can determine

9 whether the requested protective measures are appropriate. In the present

10 case, the Defence suggests that the Prosecution has not provided the

11 Chamber with sufficient evidence for it to determine the objective basis

12 justifying the kind of protective measures sought.

13 In its reply of March 3rd, 2005, the Prosecution added that the

14 experience of this Tribunal has shown that so-called insider witnesses may

15 be at risk within their communities for assisting prosecutions before this

16 Tribunal. Moreover, according to the Prosecution, there is a strong

17 public interest in the witness giving evidence in closed session, as he'll

18 feel able to express himself candidly without any fear of retribution for

19 what he might say. The Chamber is itself of course mindful that a fair

20 and public hearing is the right of the accused and is in the interest of

21 justice. Therefore, closed sessions testimony should be granted only in

22 very limited circumstances, but the Chamber is satisfied that the safety

23 of the witness or his family is put at risk should he testify in open

24 session.

25 In this regard in its decision of the 13th of October, 2003, the

Page 10194

1 Appeals Chamber stated that protective measures require something more

2 than the mere expression of fear by the witness, some objective basis is

3 required to demonstrate a real likelihood that such a person may be in

4 danger or at risk. As previously noted by this Chamber on the 1st of

5 October, 2004, this threshold is a low one and a certain margin of

6 appreciation is afforded to the party requesting the measure. In the

7 present case, the Chamber finds that there's a real likelihood of danger

8 or risk to the witness should he testify in open session, which is

9 supported by objective factors. The Prosecution provided information

10 about the sensitive position of the witness and the evidence he is

11 expected to give. The Prosecution also submitted some explanation of the

12 difficult political situation in the municipality in which the witness and

13 his family live.

14 The Chamber also considers that if the witness were to testify in

15 open session using a pseudonym, the content of his testimony is such that

16 he would be immediately identified. Therefore, taking into account all

17 these circumstances, the Chamber orders that Witness 646 be allowed to

18 testify in closed session. That's the decision on Witness 646.

19 Then is the -- Ms. Hanson, the expert, ready to enter the

20 courtroom? If so, I would invite Madam Usher to escort her into the

21 courtroom.

22 [The witness entered court]

23 JUDGE ORIE: Good morning, Ms. Hanson. We had to ask you to come

24 back just for one or two more questions. I think Judge Hanoteau has a

25 question for you first.

Page 10195


2 Questioned by the Court:

3 JUDGE HANOTEAU: [Interpretation] Good morning, Witness --

4 JUDGE ORIE: Before I do so, I have to remind you that you're

5 still bound by the solemn declaration you've given at the beginning of

6 your testimony, although I would not expect you to feel not be bound, but

7 it's my duty to remind you.

8 THE WITNESS: I understand, Judge.

9 JUDGE HANOTEAU: [Interpretation] Do you have your report in front

10 of you, Witness?

11 Is it possible to give a copy of the report to the witness?

12 I'd like to come back to a passage in your report that we've

13 already examined these past few days. I'm talking about page 8 of your

14 report, paragraph 20, page 8. Third line, paragraph 20 you wrote the

15 following: [In English] "Orders from and reported to the SDS leadership

16 via the Main Board, the Bosnian Serb Assembly, all personnel approaches to

17 Karadzic, Krajisnik, and others."

18 [Interpretation] In the footnote, footnote number 24, you give

19 some examples of orders from the SDS central organs. These are orders

20 given to the Crisis Staffs, if I understand correctly, and if I'm not

21 mistaken, you give two examples of such orders. And then you give us some

22 examples of reports from the Crisis Staffs to the SDS central organs, and

23 in that respect, you give three examples. You -- in answering our

24 questions, you gave us some comments about these last three examples.

25 What I would like to understand is the following: You're telling us these

Page 10196

1 are examples, these are examples amongst -- that you've taken amongst

2 other reports. Here I'm talking only of the reports from the Crisis

3 Staffs and to the central organs; I'm talking about these reports. So

4 here you're giving us three examples of such reports. So I suppose it

5 means that you've extracted these three examples from a number of

6 additional reports, and I would like to know how many such reports you

7 have been able to find. I'm not asking you to give us the exact number of

8 such reports, but I want to know if you had to do with a great volume of

9 reports or only a few reports. Could you please give us some

10 clarification about that point. I would be very grateful.

11 A. The first point is to understand in this passage I'm referring to

12 the point before the take-overs while the Crisis Staffs were still large

13 party organs, governments-in-waiting, but not yet taken over because I

14 later deal in a later passage with there were once the Bosnian Serb state

15 is established and they are the municipal authorities. For this time

16 period, as indicated in my presentation, the best indications of

17 communications and reporting are via the Assembly sessions and the

18 intercepts that I showed municipalities -- municipal leaders talking in

19 the intercepts to Karadzic about that.

20 In terms of written reports from this time period, those represent

21 the best examples I could find. There were no -- there were not

22 voluminous indications of reports; there were -- in terms of written

23 reports there were no written reports at this time. These are the

24 indications -- the best indications I found of that communication, but I

25 would add that in my presentation I also gave the Assembly and the

Page 10197

1 intercepts, which I think are also the best indications that we have.

2 JUDGE HANOTEAU: [Interpretation] Excuse me for asking further

3 questions about this, but you're saying these were the best evidence, but

4 that means that there were other such indications and I'd like to know

5 from amongst how many reports you chose these reports. Because here, as

6 far as I can see, there are only two materials that we can call reports.

7 A. Those are the only examples I found that we can call reports. I

8 see other comments indicative of an acknowledgment of their -- of the

9 leadership of the SDS and the Assembly, but nothing that we could term a

10 report beyond these. The other evidence I have found is indicative of

11 this acknowledgment of the leadership, but it is not something that could

12 be summarised and given as an example of a report.

13 JUDGE HANOTEAU: [Interpretation] Thank you, Witness.

14 JUDGE ORIE: Ms. Hanson, I would have a few questions on the

15 document we find in presentation binder 3, tab number 86, which is a

16 decision on the return of those who left the territory of the Serbian

17 Republic of BiH. Looking at Article 5 it says: "The decision shall take

18 effect on the date" --

19 MR. STEWART: Excuse me, Your Honour, I wish to have another --

20 JUDGE ORIE: Tell me what you have in front of you and I'll give

21 you. Do you have the master tab?

22 MR. STEWART: What I've got, Your Honours, looking at the

23 computer, I have the schedule which was provided which is hyperlinked, but

24 the numbering has changed, but if Your Honour can give me a proper record

25 number or a date, I can find it very quickly.

Page 10198

1 JUDGE ORIE: Yes. The date of the decision is the 2nd of June.

2 Date of publication is the 8th of June.

3 MR. STEWART: Is there any part of a unique reference that would

4 be helpful.

5 JUDGE ORIE: It says decision on the return of those who left.

6 [Trial Chamber and registrar confer]

7 JUDGE ORIE: Yes, it's master binder 4, 165.

8 MR. STEWART: 4, 165. Well, that's helpful. I can see it we do

9 it a different way, Your Honour. Thank you. I'd hope Your Honour will

10 accept that bringing 23 or so binders into court as a precaution against

11 what questions Your Honour might ask is probably a little

12 disproportionate.

13 JUDGE ORIE: This literally goes without saying.

14 MR. STEWART: Thank you, Your Honour. I'm obliged for that.

15 Thank you, Ms. Philpott.

16 JUDGE ORIE: Ms. Hanson, I'm looking at several elements of this

17 decision. The decision in Article 5 says: "This decision shall take

18 effect on the date of its adoption and shall be published in the Official

19 Gazette of the Serbian people of BH."

20 The decision has under it the date of the 2nd of June, 1992. The

21 decision is, from what I see, published in the Official Gazette of the 8th

22 of June. At the same time, the decision calls both all citizens in the

23 first part of Article 1 and men of Serbian nationality in the second part

24 of Article 1 to report or to return by the 20th of May. Is there any

25 indication of earlier promulgation of this decision before the 2nd of

Page 10199

1 June? Is there any indication of publication -- you'll understand it's

2 very difficult from the 2nd of June. Do you know anything more about it?

3 A. I do not know more. We do have some presidential documents --

4 decisions, as you saw, that informs before they were published in the

5 Official Gazette. To the best of my knowledge, this is the only form we

6 have of this decision. I would only point out that the mention in the

7 preamble of the acting presidents of the republic as opposed to the

8 signature by Karadzic as president of the Presidency does suggest to me

9 that it was written in some form earlier than -- earlier than the date

10 given of the 2nd of June. Again, I'm sorry, I do not have the exact dates

11 of the form -- the switch from the acting presidents to a Presidency. But

12 that wouldn't -- it would suggest to me that this was -- the decision was

13 written in -- earlier than the 2nd of June and the inconsistencies were

14 not cleared up when it was issued again on the 2nd of June.

15 JUDGE ORIE: If I look at the document as a whole, if someone

16 could compare the content and the heading of it and would take the

17 position that although the heading says that it is a decision on the

18 return of those who left, that from the content of the document it appears

19 that it establishes an impossibility to return because if a decision is

20 taken on the 2nd of June, or even if it would have been taken just a

21 couple of days earlier, and if everyone is ordered to report -- to return

22 by the 20th of May with the penalty of denial of the right of citizenship,

23 that despite the heading of the decision that it actually is a decision

24 which is not aiming at the return but rather at keeping everyone out

25 unless an exception was made. What could you say in favour and what could

Page 10200

1 you say against such an interpretation of this decision? So it's -- well,

2 let's say it's a non-return decision in disguise. What would go in favour

3 of it? What would go against it, in view of your expertise?

4 A. I think it's -- looking at its provisions it is intended very much

5 to restrict the rights of those who have left and to be selective in the

6 -- giving citizenship and other rights to those who have left and not

7 explained their departure. I -- the provision in the first article that

8 -- I'm just -- maybe it's not in the first article. Let me -- if I can

9 just -- yes, in the second part of the first article it seems the intent

10 that if -- that if men whose homes are not now under the -- home areas are

11 not now under the control of the authorities of the RS are to go to the

12 nearest Crisis Staff on the territory, the intent seems to be the return

13 of men -- Serbian men of military age, that they are -- if they fled they

14 are now somehow to get to the nearest Crisis Staff in the territory of the

15 RS. There is not such provision, it seems, for non -- people who are not

16 Serb men of military age to get to the nearest authority as if -- if they

17 have left and if they're beyond the territory of the RS, there doesn't

18 seem to be an intent here. The same interest of just, get back to the

19 territory. Get to the nearest Crisis Staff. It's get to the Crisis Staff

20 if your home is -- or report to the Crisis Staff if your home area is

21 under RS control. So it does seem, as I say, to be selective in

22 encouraging and enabling the return of those who left.

23 JUDGE ORIE: Could you -- so you'd say selective in what meaning

24 exactly?

25 A. That -- as I said, men -- Serbian men of military age seem to have

Page 10201

1 more obligation under this decision to get back to the territory

2 controlled by the Serb republic and to report to the nearest Crisis Staff.

3 Selective also in Article 3, that Crisis Staffs will decide about the

4 further engagement of people who come back or people who have left. It

5 says simply people mentioned in Article 1, and it could be either all the

6 population who have moved out or it could be Serb men of military age.

7 And these people have to -- people who have left have to justify their

8 absence to the Crisis Staff without specifying the criterion in Article 4,

9 if I could -- they have to explain or justify their inability to return to

10 the Crisis Staff, so the Crisis Staff appears to be the one deciding what

11 is a justified inability to return. And the right of citizenship depends

12 upon that. As I read it, that gives the Crisis Staff some ability to

13 decide who has the right to citizenship and property.

14 JUDGE ORIE: Yes. Would you consider this document to be

15 encouraging for non-Serbs to return?

16 A. Not at all.

17 JUDGE ORIE: Thank you for your answers.

18 If no further questions arise from the questions by the Bench,

19 then -- but, Mr. Stewart, if you have any questions --

20 MR. STEWART: Yes, I do, with respect, Your Honour.


22 MR. STEWART: It was in relation to the matter raised by Judge

23 Hanoteau.

24 Further cross-examination by Mr. Stewart:

25 Q. Ms. Hanson, that arose out of paragraph 20 of your report, at page

Page 10202

1 8, and you indicated that the -- His Honour asked you about the sentence:

2 "Municipal Crisis Staffs received orders from and reported to the SDS

3 leadership, et cetera," and you indicated that the time frame of that

4 sentence and those footnotes was intended by you to be up to the takeover?

5 A. Yes.

6 Q. That's plainly not so, is it, as regards the footnotes -- the

7 first item in footnote 24 relating to orders. You see the first one:

8 "SDS, the 19th of December, 1991, instructions," and then you refer to a

9 letter by secretary committee SDS, 31st of May, 1992.

10 A. I am discussing here how the Crisis Staffs were originally party

11 organs and as they emerged or as the Bosnian Serb state was established,

12 they emerged into more public view and became part of the open state

13 system. This -- that letter dated the 31st of May is indicative of that

14 transition because it is the executive committee of the SDS telling the

15 SAO, the heads of the governments of three SAOs that War Presidencies have

16 been formed and now if you have any further -- you have a role in those

17 War Presidencies, a role as commissioners, and from now on if you have any

18 questions they should be addressed to the Presidency of the republic. So

19 that is the transition -- a sign of the transition from party organ to

20 government, that the SDS executive committee is saying, now that business

21 is being dealt with by the Presidency.

22 Q. Perhaps in the end it doesn't matter, Ms. Hanson, but is it that

23 the readers of your report were intended to infer or understand from the

24 structure of your report that in this particular paragraph, in this

25 particular proposition about receiving orders and reporting to was

Page 10203

1 confined to the time period you mention?

2 A. I do not explicate it, but in the last paragraph of that section,

3 paragraph 23 -- or the last two paragraphs, 22, and 23, describe the end

4 of this transition and the next section deals with them as government

5 organs with the instructions from the government of the RS in April. So

6 although it is not explicated in this paragraph, that is the intention of

7 that passage -- that part of the report.

8 Q. Should I take that as a "yes" to my question then?

9 A. Yes.

10 Q. Ms. Hanson, just to clarify, when you -- it really arises out of

11 Judge Hanoteau's question, but also some questions you've previously been

12 asked. Can we take it that all relevant material which you have

13 identified which can possibly support any of the propositions in your

14 report or in the evidence that you've put before this Court is included in

15 the material which is specifically footnoted to your report or which has

16 otherwise been specifically drawn to the attention of the Trial Chamber by

17 way of the presentation binder or in one or two other cases by additions

18 of bits of paper in the course of your evidence?

19 A. No, not all relevant material which could possibly support any of

20 my propositions is included. For some issues there was so much evidence

21 that I could only make a selection. As indicated earlier, I tried to find

22 the best examples, but there -- for many of the propositions, there is

23 much more relevant material.

24 Q. Is that material which is in the -- you've referred to the vault I

25 think?

Page 10204

1 A. Some material exists in paper form, in which case it would be

2 located in the vault, but I have not worked in the vault. I access paper

3 documents through electronic form. There were also intercepts and

4 Official Gazettes which -- Official Gazette -- well, I suppose some

5 Official Gazettes are in the vault as well, but I use photocopies of those

6 and the intercepts exist. I don't know where their physical location is,

7 but I similarly access them in electronic form.

8 Q. Ms. Hanson, this may or may not ultimately be a question for you,

9 but it seems to make sense since you're here today to put it to you first.

10 Do you know whether all that material has been disclosed in the sense of

11 been identified and made available to the Defence?

12 A. I do not know.

13 Q. Well, in that case, perhaps it isn't then from now on to be

14 directed towards you, Ms. Hanson. Thank you for that.

15 MR. STEWART: I have no further questions, Your Honour, of -- I

16 have no further questions of Ms. Hanson. It would be very obvious, Your

17 Honour, that I'm likely to have a further question to raise when Ms.

18 Hanson has left. It could be that it would be useful - no doubt she's

19 staying anyway - it could be that it would be useful if Ms. Hanson were

20 stay somewhere within reach for the next 15 or 20 minutes while I raise

21 the question which Your Honour will have very clearly in mind.

22 JUDGE ORIE: I understand Ms. Hanson will usually be around

23 because she is employed here, she will not return to any foreign country

24 soon; would you?

25 THE WITNESS: No, Your Honour.

Page 10205

1 JUDGE ORIE: So at this moment there is no need to give a specific

2 -- to request specifically. I take it that you will finish your working

3 day today within this premises?

4 THE WITNESS: Yes, Your Honour.

5 JUDGE ORIE: Yes, then, Mr. Hannis, this concludes the evidence at

6 least.

7 MR. HANNIS: Yes, Your Honour, I wanted to tender the two exhibits

8 that we had with Ms. Hanson, 528 and 529.

9 JUDGE ORIE: Yes. Any objection on 528? 529?

10 MR. STEWART: No, Your Honour.

11 JUDGE ORIE: Then 528 and 529, Madam Registrar, are admitted into

12 evidence.

13 Ms. Hanson, I'd like to thank you very much. You've been with us

14 for, well, quite a number of days and we'd like to thank you for answering

15 questions by both parties and questions put to you by the Bench. A safe

16 trip home is not perhaps the most appropriate -- oh, no, I certainly wish

17 you to go home safely, but thank you very much.

18 THE WITNESS: I thank you -- I would like to thank Your Honours

19 for the time and attention you've given my work, and if I've been of

20 assistance to the Court it's an honour for me. And the question of my

21 perhaps being -- being in the vicinity and perhaps being called back -- do

22 I regard myself then as still under the oath as talking about my testimony

23 with my colleagues?

24 JUDGE ORIE: Perhaps it would be wise to wait for another day.


Page 10206

1 JUDGE ORIE: If I could instruct you in that manner, then we avoid

2 whatever risk. It's a life of its own. You didn't know yesterday whether

3 you had to return; you now do not know whether there's still a need to

4 call you back.

5 THE WITNESS: My father's favourite phrase was: Tolerate

6 ambiguity.

7 JUDGE ORIE: Thank you very much.

8 Madam Usher, could you please escort Ms. Hanson out of the

9 courtroom.

10 [The witness stands down]

11 JUDGE ORIE: Mr. Stewart.

12 MR. STEWART: Yes, Your Honour, the simple question, Your Honour,

13 and it may be particularly helpful, but as it happens, Mr. Tieger is in

14 court as well with a view to the next witness. The simple question in the

15 first place is: Has all the material which Ms. Hanson has alluded to been

16 disclosed to the Defence?

17 JUDGE ORIE: Mr. Tieger or Mr. Hannis?

18 MR. HANNIS: Well, Your Honour, the way the question was phrased

19 and the way it was answered, that's difficult for me to say, but I believe

20 that we have disclosed everything that she relied on, certainly everything

21 that she referenced in her report. I think when she says: What is in the

22 footnotes to my report, those documents aren't everything that are

23 relevant to the points I raise in my report, but that could include

24 additional excerpts from Assembly sessions, additional intercepts, but I

25 believe everything has been disclosed. We've certainly tried to disclose

Page 10207

1 everything that's in the nature of Rule 68 pertaining to the points raised

2 in her report.

3 MR. STEWART: Your Honour, I hope I might deal with it by a simple

4 question. Perhaps I should clarify when I say alluded to. I did not have

5 in mind just the material that Ms. Hanson has referred to in her report or

6 presented to Court. The categories of material which I asked her about

7 specifically a few minutes ago because she confirmed expressly that she

8 had relied for her conclusions on other material beyond what's in the

9 master and presentation binders presented by her to the Trial Chamber in

10 the course of this evidence, including one or two items which was produced

11 as she went along. She had indicated in the course of her evidence that

12 there was a considerably greater quantity of material.

13 Now, so far as somebody and whether in the first place it is Ms.

14 Hanson or secondly anybody else, so far as somebody has been able to

15 discard such material as irrelevant, if Ms. Hanson has put it on one side

16 or one of her member -- a member of the team with which she works has put

17 it on one side as irrelevant, then that wouldn't raise itself any

18 particular concern that the Prosecution should then be passing it to us

19 under Rule 68. It doesn't follow logically, of course, that the -- the

20 fact that Ms. Hanson recorded it as irrelevant for her report. It means

21 that it isn't Rule 68 material, but at least it's an indication that

22 perhaps it isn't.

23 But it's quite clear from what Ms. Hanson has said that there is a

24 category of material which she has regarded as relevant to the preparation

25 of her report, but has not actually appeared in the materials specifically

Page 10208

1 referred to her in her report and footnotes or before the Trial Chamber.

2 And it is impossible to regard that category of material as irrelevant and

3 it would be impossible to regard it as something which not be disclosed at

4 the very least under Rule 68. And what we have in this case is we've got

5 a slightly unusual form of expert witness that comes and gives evidence.

6 We have, as with Mr. Treanor, we have an expert witness who works within

7 the Office of the Prosecution. So there's no question of the material

8 being in the hands of an independent expert witness and the Prosecution

9 don't have it; that would raise other issues and one could debate that on

10 another day in another place and in other circumstances. But we're not

11 dealing with that situation; we're dealing with a situation where every

12 single item that is available to Ms. Hanson is in the possession of the

13 Office of the Prosecutor because she is part of that office.

14 So I return to the question that -- the reason I suggested that

15 Ms. Hanson, if there was any chance she was going to be somewhere else

16 might stay around, and happily she's going to be around anyway, but the

17 reason I suggested that is this might require some inquiry or

18 investigation because if that -- material in that category which I have

19 indicated has not been disclosed to the Defence, then it must be.

20 JUDGE ORIE: Yes. Let me first make an observation and then put a

21 question to the Office of the Prosecution. The observation is the

22 following: I've written in my life now and then an article, well, let's

23 say the law on extradition. I would have footnoted my opinions, pointing

24 at extradition treaties which clearly have expressed certain legal issues

25 -- have addressed certain legal issues. If I would have footnoted --

Page 10209

1 well, let's say on the basis of ten extradition treaties, I would have

2 known for sure that in my life and I would have formed my opinion on far

3 more than the ten footnoted.

4 That means that for an expert to form his or her opinion is

5 usually a combination of recently consulted and actively involved

6 materials with a large background of expertise not explicit at the same

7 level. That is a practical situation in which whether you're an expert on

8 history, whether you're an expert on physics, whether you're an expert on

9 law, that will be there always. So this is an observation I'd like to

10 make first.

11 Now, a question: Are the collections of materials that were

12 available to Ms. Hanson, are they accessible in full to the Defence?

13 MR. HANNIS: Your Honour, I -- without asking her specifically

14 each and every collection that she looked at, it's my understanding that

15 the large collections that she relied on are available in the EDS,

16 electronic disclosure suite, and have previously been disclosed.

17 JUDGE ORIE: Yes. And --

18 MR. HANNIS: But I take it the point Your Honour just made as I

19 understood it and I think would apply to Ms. Hanson, too, I think when she

20 answered that question in saying what she relied on in making that report

21 wasn't just those items in the footnotes but other things she looked at as

22 well. But I think the point would be they were corroborative of the point

23 she made and she picked the best examples to put in the footnotes in her

24 document. So what we're talking about is material that's corroborative or

25 cumulative rather than exculpatory or Rule 68; however, if the Defence

Page 10210

1 wants to specify, we can call her back and list each and every collection

2 and each and every document that she looked at, however he's already asked

3 for a six-month adjournment because he's got too much material.

4 MR. STEWART: Your Honour, that's the -- last proposition is

5 ludicrous. I'm entitled to ask for every bit of material I'm entitled to,

6 regardless of whether we've already got too much material, we do. We got

7 the decision on the adjournment motion, but the fact that we're

8 overwhelmed with material doesn't mean that we don't ask for further stuff

9 which is relevant.

10 JUDGE ORIE: Let's stop this discussion. It's not for the

11 Prosecution to say that the Defence should not ask for more material since

12 they are asking for more time and it would only further complicate the

13 problems they have described in their recent motion, that's not something

14 for the OTP.

15 MR. STEWART: Thank you, Your Honour. Sorry, I'm on your feet --

16 on my feet, Your Honour, you probably wanted to say something first.

17 JUDGE ORIE: Yes. I wanted to say something. Mr. Stewart, isn't

18 it true that these -- this Chamber will have to assess or determine

19 whether the opinions we find in the expert report of Ms. Hanson are

20 supported sufficiently by the materials she has presented to us in order

21 for the Chamber to be in a position to adopt those conclusions? That is

22 the, I would say, the question -- the first issue because it seems that

23 you're divided, Mr. Hannis saying that this is the -- well, most striking

24 material which Ms. Hanson used. So therefore it's not good enough. It's

25 -- if it is insufficient, the Chamber will establish that, will determine

Page 10211

1 that on the basis of the material presented. The conclusions are not

2 justified or that they are justified. I think you would agree with that

3 as a first step.

4 And then the second step is whether any of those materials not

5 specified in the report, not footnotes, not in the presentation material,

6 whether there would be any exculpatory material in that area which the

7 Defence should know about in order to -- perhaps to attack or to challenge

8 the conclusions which seems to find support in the material presented.

9 The first issue, would you agree that material not presented, not

10 footnoted, that this Chamber will assess the validity of the conclusions

11 or to determine the validity of the conclusions formed by the expert on

12 the basis of the material presented. Do we agree on that?

13 MR. STEWART: Well, if I can answer it with a yes --

14 THE INTERPRETER: Microphone, please.

15 MR. STEWART: Your Honour, if I answer that with a yes, but, I

16 hope Your Honour will allow me to explain where the but comes in.

17 JUDGE ORIE: Yes, tell me where the but comes in.

18 MR. STEWART: The but comes in in this way, Your Honour, and it

19 was -- it seemed to be implicit in the questions asked by Judge Hanoteau

20 this morning that if this witness's conclusions were partly based - and

21 this is the corroborative element that Mr. Hannis referred to - partly

22 based on material which is not specifically before the Trial Chamber, if

23 anywhere along the line the Trial Chamber is considering in any way giving

24 credit to Ms. Hanson's opinions on the basis of anything beyond the

25 material she's been -- she's specifically referred to, then that material

Page 10212












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13 English transcripts.













Page 10213

1 has to be available.

2 Let me put it another way. It is only if the Trial Chamber adopts

3 the approach that the material that Ms. Hanson refers to and has referred

4 to in court is the only material available which could support her

5 conclusions and could support her propositions, that this first point is

6 dealt with and that therefore I on behalf of the Defence could agree with

7 it. We would say that the universe of possible supporting material for

8 any of her conclusions in her report is -- extends no further than the

9 specific material which the Court has seen or can see by checking and

10 going through the footnoted material.

11 JUDGE ORIE: Yes. What you say very briefly is if Ms. Hanson

12 would say, I've got a hundred other documents, we just should ignore that

13 because we haven't seen it and the conclusions are there. Whether they

14 existed or not, if they are not in front of us they can play no role in

15 the determination of the conclusions are justified by the materials.

16 MR. STEWART: They can play no role unless the Defence are given

17 them, Your Honour, because the example Your Honour gave, we wouldn't

18 quarrel with that at all, what we might call a conventional expert who's

19 external to the parties, and of course that expert will in the course of

20 his or her work and experience would have read loads of stuff and nobody

21 would suggest that that expert is required to go around the world and

22 gather together every bit of material for which he or she has gained

23 expertise, but that's a wholly different situation from what we have here

24 because the material is in the possession of the Prosecution. That's the

25 first point, Your Honour. There's Your Honour's second point.

Page 10214


2 MR. STEWART: Well, so far as the second point is concerned, Your

3 Honour -- I should clarify what I meant by my reference to Rule 68 because

4 Your Honour -- I think it was a rather loose reference --

5 JUDGE ORIE: 68 contains both exculpatory and other materials.

6 MR. STEWART: I think I was thinking also, although I didn't

7 expressly mention, I think I was thinking also of Rule 66 because without

8 going to the refinements of the Rule, there's relevant material and

9 there's potentially exculpatory material. When I saying that the material

10 might at the very least be disclosed under Rule 68, I actually had in

11 mind, Your Honour, in the first place that in the more broad sense of

12 relevance, the material should be disclosed because after all there are

13 two possibilities -- well, the possibility that Your Honour referred to on

14 the first point that the material might support in some way Ms. Hanson's

15 conclusions is also accompanied by the alternative possibility that it

16 might have the opposite effect, and that's the point.

17 JUDGE ORIE: Yes, let me just be practical. Let me confer for one

18 second.

19 [Trial Chamber confers]

20 JUDGE ORIE: Yes. The Chamber would suggest to the parties that

21 we invite Ms. Hanson to make as good as she can a list of collections of

22 materials she has consulted during her work so that the parties then are

23 in the position to see to what extent the Defence has had access to it.

24 It might be that you had access already to everything, whether exculpatory

25 or whether relevant material, but at least this streamlines your

Page 10215

1 discussions. And if then any -- if then any disagreement on

2 accessibility, et cetera, would remain that the Chamber could look at it.

3 But on the factual basis which is prepared to start with by the expert.

4 MR. STEWART: Your Honour, may I say that that's -- with respect,

5 that does seem to be an entirely practical course. Your Honour, can I

6 just say we used to have something called in England called a ne exeat

7 regno, that he not leave the kingdom. If there were such a thing here, I

8 would ask for it against Ms. Cmeric because I'm going to want her to help

9 me on this. I'm actually going to be going from one kingdom to another

10 myself over the next day or so. Your Honour, with that continuing help

11 and discussion with the Prosecution, as we often do, we can at least

12 identify what the issues are between us and then bring it back to the

13 Trial Chamber rather than trouble the Trial Chamber further. That's a

14 very helpful suggestion, Your Honour. I'm grateful for that.

15 JUDGE ORIE: Is Ms. Hanson still around so we can ask her right

16 away to make the list as suggested? Yes?

17 Madam Usher, could you see whether you can -- yes.

18 [Trial Chamber and Usher confer]

19 [Trial Chamber and Registrar confer]

20 JUDGE ORIE: Ms. Hanson most likely, upon request, will appear

21 just before we have the break and the break will be a little bit later

22 today. It will be at 10.40 approximately, so then we could ask her to

23 prepare such a list just before the break.

24 Then, Mr. Hannis, or should I say, Mr. Tieger, is the Prosecution

25 ready to call Witness 646? We would then turn to closed session?

Page 10216

1 MR. TIEGER: Yes, Your Honour.

2 JUDGE ORIE: We'll turn to closed session.

3 [Closed session]

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 10217

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 [Open session]

11 [The witness entered court]

12 JUDGE ORIE: Ms. Hanson, thank you for returning. It -- sometimes

13 it's difficult to say farewell, isn't it?


15 JUDGE ORIE: The parties have had a brief exchange of views on the

16 sources of material. The Chamber would like to invite you to make a list

17 of the collections you have consulted. That would mean that we and also

18 the Defence would have a better view on what type of material was -- you

19 went through as a matter of fact, whether you did it directly yourself or

20 whether you did it at a first selection with anybody who assisted you. So

21 if you have footnoted three or four meetings of a certain body, that you

22 would say I had available all the -- all the minutes of the meetings of

23 that body from 1st of January this year until the 31st of December so that

24 we have a general overview on -- from what sources you may have made

25 selections as most important material so that the Defence will be in a

Page 10218

1 position to check whether there's anything else in that material that

2 might be of specific interest for them.

3 Could you make such a list?

4 THE WITNESS: Yes, Your Honour. If you could clarify the level of

5 detail because when you say "collections" some documents are grouped in

6 things called "collections" but they are not of any -- they are documents

7 perhaps found all in one location but not necessarily an organised finite

8 set from one body. They can be all kinds of documents put together. For

9 example, the term the reintegration selection refers to a very large

10 number of all sorts of documents. Within that, I may have found a few

11 pages, a few various discrete documents that were relevant, but much of

12 the thing called the collection is not. So I guess --

13 JUDGE ORIE: Is there -- does there exist any index of that

14 collection?

15 THE WITNESS: Yes, there should exist in some at least general

16 descriptive form for that collection because a lot of it was not relevant.

17 I don't think that there every item in that has been indexed and processed

18 in the -- simply because it was -- a lot of irrelevant to anything the

19 Tribunal would need. So I could list -- I'm glad to do whatever the Court

20 wishes me. I can list those Crisis Staffs or municipalities for which we

21 have discrete collections of -- with a beginning and an end of minutes or

22 the names and some kind of indexes of the larger collections which I

23 scanned the relevant material.

24 JUDGE ORIE: If you could make that list and not go that much in

25 detail at this moment to identify -- if you say there's a collection from

Page 10219

1 the fridge in the kitchen, Mr. Hannis and Mr. Stewart will finally see how

2 the Defence gets access to the collection of the left of the fridge in the

3 kitchen. Of course without major effort, you could say that's where we

4 keep all the stuff of TOs, then please identify that the material stored

5 there in there relating to the TO is material I had. And perhaps you

6 could add whether you searched the -- in some detail perhaps and whether

7 you just went through them very quickly, not even -- for example, if you

8 have a collection of five years, I could say although it's a collection of

9 five years I will not look any further than that one year because that

10 interests me most, of course you have available the other four years but

11 you haven't looked in it apart from that various material from the other

12 four years.

13 If you could try to make a list within these parameters I would

14 say which would allow, and that's the purpose of it, which would allow the

15 parties, that is Prosecution and Defence to identify whether there's any

16 material which was available and which may have played a role in forming

17 your opinion, whether it was all accessible to the Defence, yes or no.

18 THE WITNESS: Yes, Your Honour. I'll make such a list and I would

19 like to note that as a member of the OTP, I'm well-aware of our

20 obligations under Rule 68 and I have always brought to the attention of

21 the appropriate lawyers any material that I have seen that appears to me

22 to be potentially exculpatory.

23 JUDGE ORIE: I think there's no doubt at this moment as to whether

24 you have loyally assisted the trial attorneys in fulfilling their

25 obligations as far as disclosure is concerned. At least I do not see any

Page 10220

1 such doubt neither in your eyes or in your words.

2 Mr. Stewart.

3 MR. STEWART: No, Your Honour, there's no suggestion that Ms.

4 Hanson hasn't conscientiously done what she believes she should do and

5 what she's asked to do, of course that leaves open various questions.


7 MR. STEWART: Your Honour, is -- may I -- if it's not an

8 inconvenient moment may I make a couple of supplementary requests in

9 relation to this, Your Honour. They are very practical in nature.

10 JUDGE ORIE: These are not requested at this moment from the

11 Bench, Ms. Hanson, and to the extent they affect you, they should be

12 adopted by the Bench in order to be requested.

13 MR. STEWART: That's how I'm going to approach it, Your Honour.

14 I'm going to suggest requests which I then invite the Trial Chamber to

15 channel through to Ms. Hanson. Your Honour, it's this -- first of all, I

16 wonder if Ms. Hanson can be requested first to please bear in mind that

17 the Defence particularly may not be completely familiar with terminology

18 which has become meet and drink and conventional within Ms. Hanson's team

19 and even within the OTP.

20 JUDGE ORIE: Ms. Hanson says, if you say "the collection of team

21 7" then you rather describe what team 7 is; yes?

22 MR. STEWART: They may have conventional labels, which we all do,

23 which we apply to things which sometimes may be derogatory.


25 MR. STEWART: The second point is this, Your Honour, Your Honour

Page 10221

1 the example of the material left of the fridge, that would raise a

2 slightly different issue if it's simply described in those physical terms,

3 then that would seem to imply the need for some physical explanation and

4 talking through that by somebody. Your Honour, all I'm really suggesting

5 at this stage the request should be, we would no doubt take this exercise

6 in stages but not too many stages. So we're quite content to leave it in

7 the hands of Ms. Hanson's common sense, but given the more description she

8 is able, without inordinately burdensome work to give us at this point,

9 the fewer stages in this exercise we will face.

10 JUDGE ORIE: Ms. Hanson, if that's -- if that would be matters you

11 would keep in mind for making that list, it would be highly appreciated.

12 THE WITNESS: Certainly.

13 JUDGE ORIE: Now for certain, apart from receiving your list,

14 you're not bound now anymore, although while preparing the list it's

15 perhaps best to do it yourself and not to discuss it with counsel. But of

16 course if you need to consult with colleagues on the names of collections

17 or whatever, you're allowed to do so. But rather, stay away from Mr.

18 Hannis until that list is prepared.

19 MR. STEWART: Your Honour, two things I should like to -- Mr.

20 Krajisnik does apparently want to raise something which may relate, I

21 simply don't know, to Ms. Hanson. The other point is this, that on the

22 observation Your Honours just made, the last point didn't seem to be

23 overwhelming enthusiasm by Prosecuting counsel to get involved in this

24 particular process. But I'd just like to say, as far as the Defence is

25 concerned in this particular case, Your Honour, we would not have any

Page 10222

1 objection to communication between Prosecution counsel and Ms. Hanson in

2 relation to this practical exercise, and if that is helpful at any point,

3 then with the Trial Chamber's permission we would have no objection.

4 JUDGE ORIE: Yes. Feel free to consult whoever you want in the

5 OTP.

6 And, Mr. Hannis, feel free to consult with Ms. Hanson.

7 Then is there an issue? Mr. Krajisnik, do we -- is the matter you

8 would like to address, is that something we should address in the presence

9 of Ms. Hanson, if so, please proceed, otherwise I would give an

10 opportunity to Ms. Hanson to leave the courtroom.

11 THE ACCUSED: [Interpretation] Because I was unable to discuss this

12 with Mr. Stewart, I would kindly ask Ms. Hanson while preparing this

13 material to also prepare it in Serbian because I would like to be able to

14 identify certain documents.

15 JUDGE ORIE: I take it that that list could be in English and

16 B/C/S to the -- I don't know whether you could do it otherwise? We'll

17 take care that it will be translated.

18 THE WITNESS: As I'm not a professional translator -- I will see

19 to what extent I will translate it accurately. If I feel I can't

20 translate it accurately into B/C/S, I would let the Court know.

21 JUDGE ORIE: Would the Defence require an official translation or

22 -- to the extent you feel comfortable doing it yourself that is accepted

23 by the Defence; to the extent you have some doubt, please consult our

24 professional translation services.

25 MR. STEWART: Your Honour, we're perfectly happy to leave it that

Page 10223

1 way.


3 MR. STEWART: We certainly don't require some pukker translation

4 here because we will be able to look at the two together in some way or

5 another. Thank you.


7 Mr. Krajisnik, you -- you've heard the answers and you know,

8 therefore, what to expect.

9 Ms. Hanson, again, farewell.

10 THE WITNESS: Farewell.

11 [The witness withdrew]

12 JUDGE ORIE: Since as I indicated, I'd like to have a late break,

13 would it be of any use, Mr. Tieger, to use already the first ten minutes

14 perhaps to go through first stages of the --

15 MR. TIEGER: I have no objection to that, Your Honour, I don't

16 know if it takes any time to officially close the courtroom. But in this

17 courtroom I think it's probably less time-consuming than in others.

18 JUDGE ORIE: Yes. We'll then continue for another ten minutes.

19 We first turn into closed session.

20 [Closed session]

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 10224











11 Pages 10224-10272 redacted. Closed session.















Page 10273

1 (redacted)

2 --- Whereupon the hearing adjourned at 1.46 p.m.,

3 to be reconvened on Thursday, the 10th day of

4 March, 2005, at 2.15 p.m.