050722ED

Page 17017

1 most of this portion of the evidence comes down to speculation,

2 conclusions, rather than a clear observation of facts. So I would

3 certainly not encourage you to further pursue -- further go on this road.

4 MR. MARGETTS: Thank you, Your Honour. We have no further

5 questions.

6 JUDGE ORIE: Thank you, Mr. Margetts.

7 [Trial Chamber confers]

8 JUDGE ORIE: Has the re-examination -- no, there are no questions

9 from the Bench at this moment, so there's ...

10 MR. STEWART: No, Your Honour, thank you. I have no further --

11 JUDGE ORIE: Well, then they cannot have triggered --

12 MR. STEWART: I have no further questions that arise out of that,

13 no.

14 JUDGE ORIE: Yes. I'm aware of your position.

15 Witness, this concludes your testimony in this court. I'd like

16 to thank you very much. We'll have a break soon and then you'll be in the

17 position to leave the courtroom. I wish you a safe trip home again.

18 Could you please, before you leave the courtroom, when you are

19 waiting, take off your headphones, please.

20 THE WITNESS: [Interpretation] Thank you.

21 JUDGE ORIE: Yes. We'll have a break until five minutes to 1.00,

22 and then I take it, Mr. Tieger, that you'd call your next and your last

23 witness in this case, unless there would have been any agreement on

24 further oral argument on the matter of Witness Davidovic and then

25 especially the issue of professional privilege invoked in not following

Page 17018

1 the invitation of the Chamber to -- the invitation to the Defence to

2 provide further -- further information on which basis strong language was

3 used against witness Davidovic.

4 Yes, Mr. Tieger.

5 MR. TIEGER: Yes, Your Honour, I believe we are up to our last

6 witness already, and we will call the witness after the break.

7 JUDGE ORIE: Yes. And there's no -- at this moment -- because

8 the parties were yesterday -- were yesterday invited to let us know

9 whether there would be any further argument on the issue I just mentioned.

10 And since I see Mr. Hannis being present and he was involved in the

11 matter, I think it -- but if you say we leave it --

12 MR. TIEGER: Oh, I'm sorry, Your Honour. I -- Mr. Hannis has

13 been here for that purpose. I think it would be useful for the parties to

14 discuss the matter during the break to see if any further discussion is

15 necessary.

16 JUDGE ORIE: Yes, okay. I understand. So we'll use the break

17 for that.

18 MR. TIEGER: And we also -- I think we also have to deal with the

19 admission of exhibits related to the most recent witness.

20 JUDGE ORIE: Yes. And your last witness is called for

21 cross-examination, because he has provided an expert report.

22 MR. TIEGER: That's correct.

23 JUDGE ORIE: So I take it, then, there -- that there are no

24 further questions for the witness, the Chamber having read the -- the

25 expert report.

Page 17019

1 MR. TIEGER: Correct, Your Honour.

2 JUDGE ORIE: Yes.

3 MR. STEWART: Your Honour, could I just mention.

4 JUDGE ORIE: Yes.

5 MR. STEWART: I know that -- I don't know exactly what it is,

6 Your Honour. I know that Ms. Loukas has various bits of paper that she is

7 bringing into court immediately after the break. I -- I don't believe

8 that will take very long, but she does have one or two procedural loose

9 ends, as far as just one or two rather short --

10 JUDGE ORIE: Yes.

11 MR. STEWART: -- matters to deal with, Your Honour.

12 JUDGE ORIE: Yes. We'll hear from her immediately after the

13 break.

14 We adjourn until five minutes to 1.00.

15 [The witness withdrew]

16 --- Recess taken at 12.28 p.m.

17 --- On resuming at 1.06 p.m.

18 JUDGE ORIE: Mr. Tieger, are you ready to call your next witness,

19 Mr. Donia, but then mainly in order to hand him over to the Defence for

20 cross-examination?

21 MR. TIEGER: That's precisely it, Your Honour. I notice

22 Ms. Loukas is here. I believe she has a 30-second matter --

23 JUDGE ORIE: Yes.

24 MR. TIEGER: -- and I have no objection to her raising and

25 resolving that.

Page 17020

1 MS. LOUKAS: Yes. Your Honours, I believe I can confine myself

2 to 30 seconds.

3 I'll indicate -- Your Honours will recall that Mr. Harmon and I

4 reached an agreement in relation to the tender of the cross-examination

5 and re-examination from the Brdjanin trial in relation to Mr. Brown and

6 also the question of a -- a further document that relates to that

7 transcript, which is the Prosecution's submission relating to the

8 testimony of Ewan Brown.

9 So, Your Honours, I have five copies here of the relevant

10 documentation to tender to the Court, and I propose to do that now. And I

11 would also indicate, of course, that this will be my -- my last day in

12 court, as Mr. David Josse will hopefully be replacing me as of the weekend

13 as -- as co-counsel in the case. So I would also like to say good-bye to

14 the Court and indicate that it has been a -- an experience well worth

15 having.

16 Thank you, Your Honours. And I tender the exhibits.

17 JUDGE ORIE: Yes. Let's first, then, deal with the exhibits.

18 I take it, since there is a basis -- there is an agreement about

19 them, that there's no objection, Mr. Tieger.

20 MR. TIEGER: Yes, Your Honour. I understand --

21 JUDGE ORIE: Yes.

22 MR. TIEGER: -- that Mr. Harmon and Ms. Loukas reached an

23 agreement, and Ms. Loukas assures me that these documents reflect that

24 agreement, so there's no objection.

25 JUDGE ORIE: Yes. So then they will be admitted on the basis of

Page 17021

1 the agreement between the parties.

2 MS. LOUKAS: Yes, that's correct. It's the cross-examination and

3 re-examination in relation to Mr. Brown from the trial against

4 Mr. Brdjanin.

5 JUDGE ORIE: Mr. Brdjanin, yes.

6 MS. LOUKAS: And there's also the document that Mr. Harmon wanted

7 included as it relates to that particular portion of the evidence.

8 JUDGE ORIE: Yes. Madam Registrar, that would be ...

9 THE REGISTRAR: This will be Defence Exhibit D58.

10 JUDGE ORIE: Thank you very much, Madam Registrar.

11 Ms. Loukas, does this mean that we will not see you again this

12 afternoon, if -- if there will be an afternoon session?

13 MS. LOUKAS: Yes, that is correct, Your Honour.

14 JUDGE ORIE: Yes. Then already now, then, I would like to say

15 that it's a sad day for the Court because you are not the only woman who

16 leaves this courtroom today, since Ms. Philpott will also do so. It was a

17 pleasure for the Chamber to have you as Defence counsel in this case and,

18 of course, the Chamber is not in a position to comment on what you did;

19 whereas, the Chamber is in such a position to do that as far as

20 Ms. Philpott is concerned. We could no have wished anyone more accurate,

21 anyone more committed, anyone more serving the Court than Ms. Philpott did

22 over the three and a half years I've seen her in this courtroom and I've

23 worked with her, and I am quite convinced, Ms. Loukas, that the same kind

24 of words you receive from those who are in a position to judge upon your

25 commitment, on your accuracy, on your performance. I hope you understand

Page 17022

1 that the Chamber can't do that.

2 MS. LOUKAS: Thank you, Your Honours. I appreciate that.

3 JUDGE ORIE: But the Chamber doesn't wish anything else than that

4 you'd receive those words from those who are in a position to do that.

5 MS. LOUKAS: Thank you, Your Honour. And I would also like to,

6 if I may from a Defence perspective, also comment upon how magnificent

7 Ms. Philpott has been in her function.

8 JUDGE ORIE: Yes. It's -- it's good to hear that it's not only

9 the Court which takes this position.

10 And, Mr. Tieger, you're silent, and usually -- at least a proverb

11 in my language says that "who remains silent, consents." This is not, as

12 you will understand, a legal procedure, because their remaining silent

13 doesn't mean you consent to anything at all. But in administrative terms

14 perhaps it would.

15 MR. TIEGER: It does indeed, Your Honour. And obviously on

16 behalf of the entire Prosecution team, I would -- if I were to speak on

17 the -- on the subject, I'd only amplify the words of the Court in both

18 cases. And we have appreciated the opportunity to work both with

19 Ms. Loukas and, as the Court noted, I couldn't say enough good words about

20 Ms. Philpott and -- and every aspect of her contribution to this court's

21 functioning, and we will all -- and I've said that to her myself -- miss

22 her a great deal.

23 JUDGE ORIE: Yes. Then we have to go back to what we have to do

24 here, that is, to hear the next witness.

25 Madam Registrar.

Page 17023

1 Madam Usher, could you please escort Mr. Donia into the

2 courtroom.

3 MR. STEWART: Well, Your Honour, while that's being done, because

4 it doesn't take time, of course I would like on behalf of the whole

5 Defence team to associate myself very warmly. And I -- Ms. Loukas means

6 that, of course, very genuinely, and so it's not thought it that comes

7 from the sisterhood I want it to be understood it comes from the entire

8 Defence team.

9 JUDGE ORIE: From mankind as a whole.

10 MR. STEWART: From mankind as a whole. Our applaud and thanks to

11 Ms. Philpott. It has been a pleasure working with her.

12 [The witness entered court]

13 JUDGE ORIE: Good afternoon, Mr. Donia. I don't have to assume

14 that. I know that you're Mr. Donia.

15 Mr. Donia, before you give evidence in this court, the Rules of

16 Procedure and Evidence require you to make a solemn declaration that

17 you'll speak the truth, the whole truth, and nothing but the truth. Could

18 I invite you to make that solemn declaration.

19 THE WITNESS: Yes, sir. I solemnly declare that I will speak the

20 truth, the whole truth, and nothing but the truth.

21 JUDGE ORIE: Yes. Mr. Donia, please be seated.

22 THE WITNESS: Thank you, sir.

23 JUDGE ORIE: You have provided the Office of the Prosecution with

24 a report and with a corrigendum to your report. That has been tendered

25 into evidence under the condition that the Defence would be in a position

Page 17026

1 JUDGE ORIE: Thank you very much.

2 Mr. Stewart, please proceed.

3 MR. STEWART: Thank you, Your Honour. If he'd said he wasn't, we

4 might have had to cross-examine Your Honour in the light of the earlier

5 comment.

6 Cross-examined by Mr. Stewart:

7 Q. Mr. Donia, now, my understanding, Dr. Donia, Mr. Donia, is that

8 the -- the only material which we have now in evidence in relation to your

9 appearance here is your report, "The origins of Republika Srpska, 1990 to

10 1992." And just for your information, although you have given evidence on

11 a number of previous occasions, neither party has put in any of those

12 transcripts, so it is just this, and they have not been admitted therefore

13 into evidence. So we're simply working from your report.

14 JUDGE ORIE: Yes, Mr. Tieger.

15 MR. TIEGER: Well, it appears I did overlook a formality, and I

16 apologise for interrupting counsel. And that's the submission of

17 Dr. Donia's CV.

18 JUDGE ORIE: Yes, the CV was not among the materials in 92 bis.

19 Yes. And I think Madam Registrar has to assign a number anyhow separately

20 for the report.

21 THE REGISTRAR: The report will be Prosecution Exhibit P934, and

22 the CV will be Prosecution Exhibit P935.

23 JUDGE ORIE: Please proceed, Mr. Stewart.

24 MR. STEWART: [Microphone not activated]

25 Q. Mr. Donia -- I'm sorry, Mr. Donia, you are essentially a

Page 17027

1 historian, aren't you?

2 A. Yes.

3 Q. And a historian rather than a political analyst. Is that a fair

4 distinction?

5 A. Yes.

6 Q. You -- just to get this out of the way, you accept so far as it

7 might come in your work as a historian, you claim no special expertise in

8 relation to military matters, do you?

9 A. That's correct, I do not.

10 Q. And you have no legal qualification?

11 A. That's correct.

12 THE INTERPRETER: Could we please have a break between question

13 and answer.

14 MR. STEWART: Of course. I'm -- it's my fault, Dr. Donia. I'm

15 pushing the -- compressing the questions and answers too speedily.

16 Q. You also in relation to this particular matter -- the sources

17 that you give on the very first page of your report, you say that the

18 study -- I don't know whether you've got your report in -- in front of

19 you.

20 A. I do not.

21 Q. That might be -- it might be helpful to you.

22 JUDGE ORIE: Could the witness be provided with a copy of the

23 document, of his report.

24 MR. STEWART:

25 Q. The second paragraph, you -- in the introduction. You're with me

Page 17028

1 there, Mr. Donia?

2 A. Yes.

3 Q. Yes. In that second sentence of that second paragraph you

4 say: "The study is based in part upon the transcripts and minutes of the

5 Bosnian Serb Assembly." Nothing arises on that. And --

6 JUDGE ORIE: Yes. May I ask you to put your headphones on,

7 because there might be a message from the interpreters or anything else

8 that --

9 THE WITNESS: Yes.

10 JUDGE ORIE: -- you would need to hear.

11 Please proceed, Mr. Stewart.

12 MR. STEWART: Thank you, Your Honour.

13 Q. And other documents in the possession of the Office of the

14 Prosecutor of the International Criminal Tribunal for the former

15 Yugoslavia. Are you able just very broadly to give the Trial Chamber an

16 idea of the -- leave aside those transcripts -- the minutes with which the

17 transcript is really pretty familiar, but -- the scale of the other

18 documentation that you refer to there?

19 A. It is quite limited. I asked for and received some documents

20 which pertain to the specific issues that I wanted to address in the

21 report. Those are limit to -- limited to I think about six or eight

22 intercepts. And I also asked for and received some information on the --

23 the Assembly of the -- the Krajina, which I had actually used in a study

24 for a previous submission in another trial.

25 And then a few other items in the course of this which were in

Page 17029

1 the possession of the Tribunal. These were official proclamations

2 published in Official Gazettes and the -- a couple of similar legal

3 pronouncements or explanations, and also a few documents -- I note one,

4 for example, in footnote number 64 on page 14, which I was given to

5 examine in response to a specific inquiry about an issue that I was

6 writing about.

7 Q. The other -- I think you either mentioned another report or

8 another study. Your other report overlapped with this but was

9 specifically directed towards Bosanska Krupa; is that correct?

10 A. There are several prior reports that I've submitted in other

11 cases. One of them pertained to the Autonomous Region of Krajina in

12 total. One pertained to Prijedor. And one pertained to Sarajevo. And a

13 fourth pertained to Bosanski Samac.

14 Q. Bosanski Samac. Thank you.

15 A. Yes.

16 Q. Yes. The -- the totality of your work on those reports, could

17 you estimate that to -- would it be unfair to suggest to the nearest

18 hundred hours? Is that -- are we in the right ballpark?

19 A. It would be difficult to assess it, but it would be in the

20 several hundred hours of effort or commitment to research and writing.

21 Q. And was this -- apart from, well, simple administrative

22 assistance and finding documents -- was this for practical purposes, your

23 work, as opposed to a team?

24 A. Yes, it was.

25 Q. The -- you haven't -- in the course of this particular report and

Page 17030

1 study, "Origins of Republika Srpska," you haven't made any specific study

2 of Crisis Staffs.

3 A. No.

4 Q. And is it correct that you also haven't attempted any specific

5 analysis of the internal power structure within the SDS and Republika

6 Srpska?

7 A. That's correct. I have not.

8 Q. And in particular, you haven't conducted any specific study in

9 relation to the powers, duties, responsibilities of the speaker of the

10 Assembly of the Bosnian Serbs, subsequently what would later be called

11 Republika Srpska.

12 A. No, I have not.

13 Q. The -- you have dealt at page 29 of your report -- you refer to

14 the statement of principles which emerged with an agreement. We had the

15 Lisbon Agreement and the Sarajevo Agreement, didn't we, arising out of the

16 talks provided -- presided over by Mr. Cutileiro.

17 A. Yes.

18 Q. And you refer after -- after the citation of that passage you

19 say, four lines from the bottom "these principles involved more than one

20 transparent fiction" having cited the principles. Well, perhaps for

21 clarity and also for some degree of public understanding, what you cite

22 from the statement of principles agreed to on the 23rd of February, 1992,

23 you say: "... read in part: Bosnia-Herzegovina, BH, would be a state

24 composed of three constituent units based on national principles and

25 taking into account economic, geographic, and other criteria. BH would

Page 17031

1 continue to have its existing borders, and neither the government of BH

2 nor the governments of the constituent units will encourage or support

3 claims to any part of its territory by neighbouring states."

4 And then returning to your text: "These principles involved more

5 than one transparent fiction. And then you say"the constituent units

6 being foreseen were based not on economic or geographic criteria but on

7 ethnonational claims."

8 So you're saying, are you, that the phrase "based on national

9 principles" in the cited passage actually means ethnonational claims? Is

10 that --

11 A. Yes.

12 Q. Yes. And from your study, is it correct that all the parties to

13 that agreement must necessarily have appreciated that that was a key

14 element?

15 A. Yes.

16 Q. And would inevitably also have appreciated that it was going to

17 be extraordinarily difficult to implement in practice.

18 A. Well, I haven't reached that conclusion here, I don't believe.

19 Q. No, I'm asking -- I'm not suggesting it's -- it's there enshrined

20 in the text. I'm asking if -- if you say not -- yes, no, or you don't

21 have an opinion, these are all legitimate answers. So I'm putting it to

22 you that -- for your comment that the parties to this agreement would

23 inevitably have appreciated that it was going to be extraordinarily

24 difficult to implement those principles in practice.

25 A. Yes. Yes, I would agree.

Page 17032

1 Q. Mr. Donia, do you -- did you conduct any sort of study or

2 investigation of a document -- well, first of all, let me ask you this:

3 Are you familiar with a document which calls itself "Instructions for the

4 organisation and operation of organs of the Serbian people in Bosnia and

5 Herzegovina in emergency conditions," commonly known as Variant A and B?

6 A. Yes, I am.

7 Q. Have you conducted any sort of study of that document or issues

8 specifically related to that document?

9 A. I -- I have not done so here, but I did so in a prior -- a

10 submission in a prior case, which was the -- the Prijedor case. So yes, I

11 have examined that document and performed an analysis of it previously.

12 Q. Have you -- did -- what I want to ask you about is this: Did you

13 conduct any sort of investigation into the documents relating to the

14 source of -- of the Variant A and B document?

15 A. No.

16 Q. Did you examine any documentation in relation to the issue of

17 whether, how, and to what extent that document came into the hands of

18 people around Bosnia and Herzegovina?

19 A. I have not made it, I would say, an extensive or thorough

20 investigation of that, no. I have traced or identified a number of

21 municipalities in which actions were subsequent -- were taken subsequent

22 to and evidently pursuant to those instructions. But I would say only

23 eight or ten municipalities.

24 Q. Have you ever in the course of your studies, either for this

25 report or your previous reports, been able to come across a reference,

Page 17033

1 apart from in the Variant A and B documents, to an organ or body called

2 the -- at the central or national level called the SDS Crisis Staff?

3 MR. TIEGER: Your Honour, if I may.

4 JUDGE ORIE: Yes.

5 MR. TIEGER: This witness has been called for cross-examination

6 of his report, and insofar as I can determine from the last several

7 questions, is being questioned about matters that are not raised in or

8 addressed by his report and -- and matters that I certainly didn't inquiry

9 further about when I didn't ask questions before he was submitted for

10 cross-examination. So I don't know if we're going into areas that are not

11 within the ambit of the report; and if so, I'm not quite sure why.

12 JUDGE ORIE: Yes.

13 MR. STEWART: Your Honour, I'm -- I'm happy to accept that and

14 leave the matter there.

15 JUDGE ORIE: Yes. Although, I must add to that, Mr. Tieger, that

16 the question of whether Rule 89(H) would apply also if a witness is called

17 for cross-examination only is, as far as I know, not settled, but there's

18 no specific reason that, if there would be any specific knowledge with the

19 witness that could be elicited and would be material to the case of the

20 Defence, it's not to be said that this is not admissible. Yes.

21 MR. TIEGER: I do understand that, Your Honour. I --

22 JUDGE ORIE: Okay. Well, then --

23 MR. STEWART: Well --

24 JUDGE ORIE: With this proviso we'll take into consideration that

25 Mr. Stewart wasn't want to further pursue the matter and let's proceed.

Page 17034

1 MR. STEWART: Well, plus the fact that, Your Honour, the copy of

2 have Rules that we've just referred to hasn't got the new addition of (H),

3 so it's -- it's just as well it's -- it's academic for immediate purposes.

4 JUDGE ORIE: Please proceed.

5 MR. STEWART: I have non mind what Your Honour is referring to

6 anyway. But, Your Honour, I don't pursue it. I will go with Mr. Tieger's

7 point, and in those circumstances, Your Honour, I have no further

8 questions.

9 JUDGE ORIE: Yes. That means that the cross-examination is ...

10 MR. STEWART: It does mean that, Your Honour, yes. Is completed.

11 JUDGE ORIE: Yes, is completed, yes. Is completed. Well, you

12 might understand that it comes a bit as a surprise that it was that

13 quickly but --

14 MR. STEWART: A pleasant one, I hope, Your Honour.

15 JUDGE ORIE: Yes. Yes, certainly.

16 Dr. Donia, I would have one question for you -- at least,

17 Mr. Tieger, if there are no questions triggered by cross-examination.

18 MR. TIEGER: No, Your Honour, there are none.

19 JUDGE ORIE: Yes.

20 Questioned by the Court:

21 JUDGE ORIE: I'd like to draw your attention also to that -- the

22 part of your report your attention has been drawn to by Mr. Stewart. He

23 talked about the Cutileiro Plan. In your report, you find out that the

24 quarrelling was more about maps than about principles, if I may put it

25 short that way. You also say in your report that -- that the constituent

Page 17035

1 units -- "each constituent unit was to be dominated by a single group,

2 Serb, Croat, and Muslim." Do you know what was in the minds of those who

3 were working on the Cutileiro Plan, as far as the residence is concerned

4 of those who would not have liked to be in a constituent unit which was

5 dominated by a ethnicity, a nationality, which was not theirs?

6 A. It's not possible for me to know what was in their minds

7 certainly.

8 JUDGE ORIE: Of course. But to what extent they expressed

9 themselves on that or what you found on that.

10 A. It was clearly the intent of the European negotiators,

11 Mr. Cutileiro and others, to establish a basis for peaceful coexistence

12 of -- of peoples throughout Bosnia on this basis. That was the purpose of

13 it. And to avert the prospect of armed conflict. And the manner in which

14 they apparently allocated the municipalities on the map that was drawn up

15 by the -- the Cutileiro team was to take the majority or plurality

16 population in each municipality and then award that municipality to the

17 administrative division for that particular group. And that would suggest

18 to me that they had in mind very much leaving in place the existing local

19 administrative arrangements in those areas.

20 JUDGE ORIE: Would that also mean that they expected, well, let's

21 say, to -- that they would expect that the minority Serb population, for

22 example, in a Croat-dominated municipality would continue to live there,

23 or would they leave the municipality and go to a Serb-dominated

24 municipality? What can be said about that?

25 A. Well, I think it's quite fair to say that that latter option

Page 17036

1 would never have crossed their minds. Certainly they would have been --

2 found abhorrent the prospect of such a population movement. And they

3 clearly wanted people to remain where they were in the administrative

4 units that they then found themselves.

5 JUDGE ORIE: Yes. Was there any thought of relocation if the

6 minority would feel uncomfortable in a municipality dominated by others?

7 Was there anywhere in the plans that relocation or resettlement would be

8 part of the plan, apart from what the people themselves would decide to

9 do? But would there be any arrangement -- be prepared for such

10 resettlement or relocation?

11 A. I -- I can tell you that that was not a part of any -- any of the

12 written plans that were agreed to or -- or -- or discussed.

13 JUDGE ORIE: So --

14 A. I would doubt that it was a part of any discussions either, but I

15 don't know that for -- for sure.

16 JUDGE ORIE: Yes. So that makes any question about forcible

17 resettlement unnecessary, because that would be automatically excluded as

18 well.

19 A. That would be my opinion based on having looked at the -- the

20 documents and the reports on negotiations.

21 JUDGE ORIE: Thank you very much for this answer.

22 Has the -- have the questions of the Bench raised any need to put

23 further questions to Dr. Donia?

24 MR. STEWART: No, Your Honour. Thank you.

25 MR. TIEGER: No, Your Honour. Thank you.

Page 17037

1 JUDGE ORIE: Dr. Donia, this has been a very short appearance

2 before this Chamber. Let's just take it that your report is so clear that

3 it did not raise any important further questions. Nevertheless, even if

4 it was short, I'd like to thank you very much for having come to The Hague

5 and having answered the questions put to you by the Defence and by the

6 Bench and I wish you a safe trip home again.

7 THE WITNESS: Thank you. My pleasure, Your Honour.

8 JUDGE ORIE: Madam Usher, would you please escort Mr. Donia out

9 of the courtroom.

10 [The witness withdrew]

11 JUDGE ORIE: It is 20 minutes to 2.00. I have a few matters on a

12 list of pending procedural matters. If we would work efficiently, we

13 might be able to finish the list in approximately 20 minutes. And if we

14 would be able to do so, I'm informed that technicians and interpreters

15 would be willing to stay for the 20 minutes to come, which would avoid

16 that we'd have to return this afternoon and have another session starting

17 at 3.00. Would the parties agree that we give it a chance, give it a try.

18 MR. TIEGER: We'd be grateful, Your Honour.

19 MR. STEWART: I'm in favour, Your Honour. But I would need two

20 or three minutes, please, at some point within that 20 minutes.

21 JUDGE ORIE: Yes. Let's try to start as quickly -- I mean if we

22 can't make it, then we have to come back.

23 First of all, the first issue on my list is the admission or

24 non-admission of the exhibits introduced through witness Neskovic.

25 Madam Registrar.

Page 17038

1 [Trial Chamber and registrar confer]

2 JUDGE ORIE: Madam Registrar will read the numbers assigned to

3 the exhibits and the exhibits used, and as far as I understand, has

4 returned - gentlemen, it might be of some importance, what I am saying -

5 and has returned from the binders those tabs that had not been used.

6 Madam Registrar.

7 THE REGISTRAR: Exhibit P895, P897, P898, P899, P913, P914,

8 P914A, and P915.

9 JUDGE ORIE: Yes, Mr. Tieger.

10 MR. TIEGER: Yes, Your Honour. Thank you. I also indicated that

11 I would be submitting three contextual documents. Those are documents

12 that can be found at tabs 24, 25, and 26 of the presentation binder. I

13 can provide more particulars if necessary to identify those documents,

14 but --

15 JUDGE ORIE: If you could please read out shortly what -- what

16 they are, then ...

17 MR. TIEGER: Thank you, Your Honour.

18 The first is a UPI press report dated 30 September 1992, and it

19 begins with the ERN number M0006983.

20 The second, found at tab 25, is a document dated September 30,

21 1992, a UNCIVPOL incident occurrence report, beginning with the ERN

22 R0149093.

23 And the third is found at tab 26 --

24 [Prosecution counsel confer]

25 MR. TIEGER: And the third is superfluous because it's already in

Page 17039

1 evidence, I'm advised.

2 JUDGE ORIE: Yes. So that saves at least one exhibit.

3 MR. TIEGER: Yes. And I spoke with Mr. Stewart about what was

4 once three and is now two documents and he indicated no objection.

5 JUDGE ORIE: Yes. Any objections as far as the Neskovic

6 documents concerned?

7 MR. STEWART: I can't remember that I didn't object to, but I

8 agree that I didn't object to it, Your Honour.

9 JUDGE ORIE: Yes. Then these exhibits are all admitted into

10 evidence.

11 THE REGISTRAR: The document located at tab 24 will be P936, and

12 the document located at tab 25 will be P937.

13 JUDGE ORIE: Yes. And under those numbers, they are -- they are

14 admitted.

15 Next on my list is exhibits tendered through Witness 682.

16 Madam Registrar.

17 THE REGISTRAR: Prosecution Exhibits P918 to P925, P926 under

18 seal, P927, P928 under seal, P929, P930 under seal, P931, P932, and P933

19 under seal.

20 JUDGE ORIE: Any objections? Mr. Tieger.

21 MR. TIEGER: Yes, Your Honour. The Court may recall there was

22 also the question about the documents located at tabs 22 and tabs 24 --

23 excuse me, 28 through 31, the statements.

24 JUDGE ORIE: The statements.

25 MR. TIEGER: The statements. Yes. That hasn't -- I don't think

Page 17040

12 Blank page inserted to ensure pagination corresponds between the French and

13 English transcripts.

Page 17041

1 that was resolved. There was some -- I made a preliminary point about

2 their admissibility. I'm certainly prepared to expand on that and we

3 would seek their admission.

4 JUDGE ORIE: Yes.

5 Mr. Stewart.

6 MR. STEWART: Your Honour, I do have to remind myself what --

7 JUDGE ORIE: It's about the statements. They were not all used.

8 Are they tendered as contextual exhibits, Mr. Tieger?

9 MR. TIEGER: Well, I think under these circumstances, I guess it

10 would be something of a hybrid, but I'm certainly prepared to do it that

11 way, of course.

12 MR. STEWART: Yes, Your Honour, I'm happy for them to be a

13 hybrid.

14 JUDGE ORIE: Yes. And are there any objections?

15 MR. STEWART: On the other items -- sorry, on the other -- on the

16 other items, no, Your Honour.

17 JUDGE ORIE: No. And on the hybrid items?

18 MR. STEWART: Well, Your Honour, I said I was happy. There was

19 no objection on the hybrid items, to them being hybrid in the way is that

20 Mr. Tieger describes.

21 JUDGE ORIE: Yes. Then, Madam Registrar, would you please then

22 assign -- because I don't think that -- I don't know whether numbers have

23 already been assigned to the -- I don't think so. I'm not quite certain

24 about 22, but ...

25 I think we're talking -- Mr. Tieger, we're talking about tabs 22

Page 17042

1 and tabs 28 through 31, so another four, all together five.

2 MR. TIEGER: Correct, Your Honour.

3 JUDGE ORIE: Yes.

4 MR. STEWART: I'm sorry, I thought -- I thought Mr. Tieger

5 referred to tab 24 as well.

6 JUDGE ORIE: No, I think he withdrew that.

7 MR. TIEGER: Correct. That's already in evidence.

8 JUDGE ORIE: Yes.

9 MR. STEWART: Oh, I see. Yes, I'm -- I'm with you. Yes, I

10 realise. Okay.

11 JUDGE ORIE: Yes. Madam Registrar.

12 THE REGISTRAR: The document located at tab 22 will be P938; at

13 tab 28, P939; at tab 29, P940; at tab 30, P941; at tab 31, P942. There

14 are also two additional exhibits, P916 and 917, both under seal.

15 JUDGE ORIE: Yes. Since there are no objections, these exhibits

16 are admitted into evidence.

17 Next on my list is Witness 280. There are four exhibits which

18 were still pending. The numbers have already been assigned, but they are

19 not yet on the transcript.

20 Madam Registrar.

21 THE REGISTRAR: The memorandum on Prosecution's Rule 68 materials

22 will be Defence Exhibit D54. The translations of the Rule 68 excerpts,

23 D55. The e-mail dated 9 May 2005, D56. And the secondary e-mail dated 9

24 May 2005 will be D57.

25 JUDGE ORIE: Is there any objection?

Page 17043

1 MR. TIEGER: No, Your Honour.

2 JUDGE ORIE: Then --

3 MS. LOUKAS: No, Your Honour. That was a matter that was --

4 JUDGE ORIE: Was agreed upon, yes.

5 MS. LOUKAS: Was an agreement between Mr. Gaynor and myself.

6 JUDGE ORIE: But they are now -- they are now admitted under

7 these numbers in evidence.

8 MS. LOUKAS: Thank you, Your Honour.

9 JUDGE ORIE: Then we have the -- next on my agenda is that the

10 Defence would need a bit more time to respond to the newly submitted

11 statements of witnesses Zujo Mesic [phoen] and Dobraca, the reorganised --

12 and they indicated we could expect a response as soon as possible next

13 week. The Chamber sets a date 29th of July, which is next week, Friday.

14 MR. STEWART: That's fine. Thank you, Your Honour.

15 [Trial Chamber and legal officer confer]

16 JUDGE ORIE: Yes. I'll move to the next point on my agenda is

17 that the parties would confer on any further submissions in relation to

18 the Davidovic cross-examination issue.

19 MR. HANNIS: Thank you, Your Honour. We did confer during the

20 break. I still feel that I -- I'm in a position I want to make some

21 further comments and leave it up to the Court after that.

22 JUDGE ORIE: Yes. I noted that you'd like to do that.

23 Is there a similar wish from the Defence side?

24 MR. STEWART: No, Your Honour.

25 JUDGE ORIE: Yes. Then I now move forward and see where we --

Page 17044

1 and we'll then later see whether orally or in writing you'd be given an

2 opportunity to further address the matter, Mr. Hannis.

3 Yes. As far as the Zvornik contextual exhibits are concerned, I

4 think it was up till today the Defence could make any objections. The

5 Chamber hasn't received anything until now. If it -- if the Defence would

6 not have the intention to raise any objections by today, we would admit

7 them into evidence.

8 MR. STEWART: There won't be anything coming in the course of

9 today, Your Honour.

10 JUDGE ORIE: Yes.

11 MR. STEWART: No. So the time has expired --

12 JUDGE ORIE: At the same time -- yes, at the same time I think

13 there were still some technical problems with that, so admission might not

14 be the right decision to take immediately, because there were still some

15 technical matters, I think, in relation to translations, et cetera.

16 The Office of the Prosecutor will be informed about any concerns

17 of the Chamber in this respect before our final decision will be given on

18 it.

19 Then the next matter. I go quickly through a couple of

20 documents. There was still an outstanding translation issue on document

21 P242. The Chamber has not been informed yet about the resolution by the

22 parties of this translation issue.

23 MR. TIEGER: Your Honour, if I remember this one correctly - and

24 unfortunately, I don't have the exchange in front of me - but I think this

25 was a document about which a translation concern was raised. I think the

Page 17045

1 Prosecution then had it checked, confirmed that it was accurate, and spoke

2 with the Defence about that and was waiting to hear back from the Defence

3 if they had any -- had any reason to dispute that view of the document. I

4 believe that's 242, but I ...

5 [Prosecution counsel confer]

6 [Trial Chamber and registrar confer]

7 JUDGE ORIE: Yes. If it would help you, it was about

8 Witness Egrlic.

9 MR. TIEGER: That -- that seems to be consistent with my

10 recollection of the discussion I had with -- I'm trying to remember -- I'm

11 trying to recall which -- no, no, no, I had -- I consulted with -- with

12 Mr. Margetts, who I believe led Mr. Egrlic, and this was my understanding

13 of the -- of the state of play, that we had had the translation checked,

14 confirmed that it was accurate.

15 JUDGE ORIE: Yes.

16 MR. TIEGER: And advised the Defence accordingly and asked if

17 they had any reason to dispute that.

18 JUDGE ORIE: Yes.

19 MR. TIEGER: And that exchange, as I understood it, you can see

20 from the -- obviously from the exhibit number this took place quite some

21 time ago, so I think that's just one of those matters that has been

22 pending for quite -- quite a while.

23 JUDGE ORIE: Yes. A similar issue, by the way, also arises in

24 relation to Exhibit P252, also through the witness Egrlic. The latest

25 information we had is that upon review, that the Prosecution thought the

Page 17046

1 translation to be accurate. And we were informed on the 9th of May that

2 the Defence was considering -- would be working on it and see whether it

3 would agree or disagree.

4 Could we do it very practically. I've drawn now your attention

5 to P242 and P252. The Prosecution has -- has reviewed the translation,

6 being aware of the problems that might be there. If the Defence does not

7 within one week from now on - that's also the 29th of July - would

8 indicate that the -- that the translation is not accurate, the translation

9 as it was provided will be admitted into evidence.

10 MR. STEWART: Your Honour, that's very practical --

11 JUDGE ORIE: Yes.

12 MR. STEWART: -- And entirely acceptable. Thank you.

13 JUDGE ORIE: Then we come to P729 in relation to Witness 012. I

14 think that the OTP should still file a redacted version of -- of a

15 chronology, a chronology contained in P729, a chronology which should

16 exclude any events after the 1st of April. The Prosecution is instructed

17 to do so within one week from now on.

18 Then I come to P782, which was a -- a video. Since the subtitles

19 were not read out when the video was shown, the subtitles do not appear in

20 the French version of the transcript; therefore, the OTP has to file a

21 translation of the exhibit as soon as possible.

22 MR. TIEGER: We have the translation, Your Honour. We can do so

23 today.

24 JUDGE ORIE: Yes. So the Chamber, then, notes that you do it

25 today.

Page 17047

1 Then we have the issue of dates for the Thompson exhibits, if I

2 may call them so. The Trial Chamber has raised some issues in respect to

3 have dates or absence of dates for three exhibits. On the 12th of July,

4 the Office of the Prosecution proposed for the three exhibits dates in an

5 e-mail sent to the Defence, but the Chamber has not heard any response by

6 the Defence. One week, would that be a good idea, Mr. Stewart? If I look

7 at your face, it might be ...

8 MR. STEWART: It's going to be -- it's -- sometime, Your Honour,

9 the prospects of my increasing my knowledge from this point onwards are

10 100 per cent. So that would be a good idea, Your Honour.

11 JUDGE ORIE: You've got a week.

12 Then since we now have heard all the evidence the Prosecution has

13 presented and since there are only a few loose ends of a rather technical

14 nature, the Chamber would like to know when the Defence will be in a

15 position to inform the Chamber whether a application under Rule 98 bis

16 will be made. The Chamber suggests that you'd inform the Chamber not

17 later than Friday, the 5th of August, whether or not.

18 MR. STEWART: Yes. It -- the Friday. If Friday is the 5th -- is

19 the 6th, yes, Your Honour. Yes, that's entirely --

20 JUDGE ORIE: Friday the 6th.

21 MR. STEWART: Yes. Yes.

22 JUDGE ORIE: At least, Friday two weeks from now on.

23 MR. STEWART: Yes. I'm sure it is the 6th, Your Honour. Yes.

24 Yes, that's entirely acceptable.

25 JUDGE ORIE: Then we'll hear -- and I don't have to add to that

Page 17051

1 Mr. Stewart, you've got your three minutes -- your three lawyer

2 minutes now. Yes, Mr. Hannis.

3 MR. STEWART: He's -- I want to start with Mr. Hannis.

4 JUDGE ORIE: Yes.

5 MR. HANNIS: Thank you, Your Honour. In this courtroom, all the

6 participants have a number of responsibilities and obligations.

7 JUDGE ORIE: Just -- Mr. Hannis, are you dealing now with

8 Davidovic? I invited you to make the submissions in writing.

9 MR. HANNIS: Your Honour, I -- I'm sorry. I misunderstood. I

10 thought you were inviting me to speak on it. I'll submit something in

11 writing. Thank you.

12 JUDGE ORIE: Mr. Stewart, your three minutes.

13 MR. STEWART: Yes. Your Honour, it's -- it's just this: Of

14 course, it's -- it's helpful finally to have a clear position in relation

15 to Mr. Krajisnik and self-representation. Of course, Your Honour, when

16 the written decisions are -- when the written reasons are given, that's

17 when the time will begin for any question of an appeal, and that would --

18 well, we apprehend that would primarily be an appeal by Mr. Krajisnik

19 himself in relation to that matter. But, of course, then it becomes

20 complicated again.

21 But we wanted to say --

22 JUDGE ORIE: I remember that in other cases before this Tribunal

23 that those who were supposed not to represent the accused any more did

24 file the appeal on his behalf.

25 MR. STEWART: Indeed, Your Honour. That was really what I was

Page 17052

1 alluding to when I said it was not quite as simple as that. And -- but

2 the other point is this, Your Honour: That the -- the scheduling order

3 under which we -- we have been operating was made on the 26th of April,

4 2005. A great deal of water has flowed under the bridge since then, and

5 actually some of it in relation to the Prosecution case to have witnesses

6 has really flowed rather fast, as it happens, and voluminously.

7 Your Honour, we now at least know, subject to any appeal, we at

8 least know where we are as far as the handling of the Defence case is for

9 the immediate future. We are still the assigned team. There is going to

10 be, subject, we hope, to some formal confirmation in the next hour or so,

11 if it hasn't already been given, a -- a change there with Mr. Josse

12 replacing Ms. Loukas. So we know where we are. We are continuing work as

13 it happens immediately -- not this weekend, perhaps, for the next 48 hours

14 or so, but we are continuing work. However, Your Honour, I did right back

15 in April -- I did refer very specifically to what the Defence submitted

16 was lack of proper consultation in relation to that scheduling order. And

17 that has remained our position, Your Honour. We have simply got on with

18 completing the Prosecution case, as the Trial Chamber has clearly been

19 determined to do, by the 22nd of July.

20 But, Your Honour, I wish it to be absolutely clear now,

21 Your Honour, we will consider our position over the next three weeks, when

22 we are over most of that time continuing to work on the case. I have

23 said, Your Honour, that at some point a Defence team must be entitled to

24 some personal time off. It is not clear exactly when and how that can be

25 managed, but it has to be fitted in somehow for those that have been

Page 17053

1 working for an extended period.

2 But, Your Honour, the bottom line is this: There is simply no

3 prospect whatever of the Defence being able to begin the case on either of

4 the alternative dates specified in the scheduling order. But,

5 Your Honour, I say that today, but we owe it to the Trial Chamber now,

6 being relieved of the relentless week-in, week-out pressure of dealing

7 with the Prosecution case and the witnesses, we owe it to our client, we

8 owe it to the Tribunal, the Trial Chamber, we owe it to the Prosecution

9 and to everybody else at least to review how serious that problem is and

10 by what margin it is impossible to meet that scheduling order.

11 But, Your Honour, we inevitably are going to be applying for that

12 scheduling order to be varied, rescinded, and replaced after consultation,

13 whatever the precise procedure, Your Honour. But I do not wish us to

14 dissolve the immediate court proceedings for a few weeks without that

15 being absolutely crystal clear, Your Honour. It is impossible as it

16 stands, and that will be the Defence's position, whatever the refinement,

17 because we already know that it -- it must be impossible.

18 JUDGE ORIE: Yes, Mr. Stewart.

19 Any need to respond at this moment, Mr. Tieger?

20 MR. TIEGER: Not at this moment, Your Honour. Thank you.

21 JUDGE ORIE: Yes. I do understand that the Chamber can expect

22 therefore a motion for granting additional time before to start the

23 Defence case. Of course, I can't say anything at this moment where no

24 such motion has been filed, so I would not know the reasons; although, I

25 could guess some of them, and that is --

Page 17054

1 MR. STEWART: Your Honour may guess some of them. But may I also

2 say this, Your Honour: An alternative to a contentious motion has

3 frequently been adopted in the past by the Trial Chamber. In the first

4 place, Your Honour, some of the consultation, which in our submission

5 should have taken place before, could occur. Of course, Your Honour, I

6 don't shrink from the notion that -- that if the Defence is not in the end

7 satisfied, naturally it will be the Defence's duty to file a motion. But,

8 Your Honour, serious consultation about where we are in relation to this

9 case should responsibly, in our submission, be step number one.

10 JUDGE ORIE: Let's, then, say the following: The scheduling

11 order stands as it is now. If the Defence would -- would like to change

12 that -- you may have noticed that the scheduling order gave a long-term

13 view on scheduling; rather, what are we going to do next week, when it

14 wasn't -- it covered the whole of the case. Whether or not the Chamber

15 will consider to change that scheduling order at all, it certainly will

16 not do so - that means even will certainly not consider to do so - if not

17 an alternative would be presented viewing in a similar long-term way to

18 scheduling issues.

19 MR. STEWART: Your Honour, that -- that is a tiny bit cryptic for

20 me, Your Honour, with respect.

21 JUDGE ORIE: Well, to say we want to delay for the start of the

22 Defence case with four weeks if not accompanied by -- if we would start in

23 four weeks, we think we would have -- need so much time, we would there be

24 in December. The Chamber is -- of course, matters always can change

25 underway, but the change is not inclined to view scheduling issues on a

Page 17055

1 short-term basis but will view them always on a long-term basis.

2 MR. STEWART: Your Honour, that's the Defence-preferred approach

3 as well.

4 But, Your Honour, may I ask very directly, then: Is Your Honour

5 saying, then, that whatever else happens, the final target date must, in

6 the Trial Chamber's current view, be fixed? And if so, Your Honour, may

7 we ask whether there is some specific technical reason why this technical

8 reason or procedural reason or any reason to do with Judges' terms of

9 offices or anything like that, which is related to the need to complete

10 this case by late April 2006?

11 JUDGE ORIE: I cannot give you an answer to this question now.

12 The final date on which a judgement will be given will not be dictated by

13 any administrative date. That's what I can say about it.

14 MR. STEWART: "Administrative" covers the whole range of matters

15 that I --

16 JUDGE ORIE: Including -- including it will not be dictated by

17 that.

18 MR. STEWART: Including such matters as Judges' terms of office

19 or anything like that?

20 JUDGE ORIE: Including Judges' terms of office, yes.

21 MR. STEWART: Thank you, Your Honour. That's most helpful to

22 know and to hear. Thank you.

23 JUDGE ORIE: 1I there's no other issue, I'd like to -- or is

24 there, Mr. Stewart?

25 MR. STEWART: Excuse me one moment, Your Honour

Page 17056

1 [Defence counsel confer]

2 MR. STEWART: No, Your Honours, thank you. I'm grateful for that

3 opportunity.

4 JUDGE ORIE: Yes. Then I'd like to thank very much the

5 interpreters and technicians for their patience. We will not sit -- we'll

6 deal with some loose ends. We'll hear from the Defence not later than the

7 5th of August whether there will be any 98 bis motion. And it depends on

8 that information whether or not we will hear such a motion on Tuesday, the

9 16th of August, 2005.

10 So with that uncertainty, we stand adjourned.

11 --- Whereupon the hearing adjourned at 2.19 p.m.,

12 to be reconvened sine die.