Tribunal Criminal Tribunal for the Former Yugoslavia

Page 17057

1 Tuesday, 16 August 2005

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 10.44 a.m.

5 JUDGE ORIE: Good morning, after the summer recess, to everyone

6 in this courtroom. Mr. Registrar, would you please call the case.

7 THE REGISTRAR: Good morning, Your Honours, this is case number

8 IT-00-39-T, the Prosecutor versus Momcilo Krajisnik.

9 JUDGE ORIE: Yes. Thank you.

10 Mr. Registrar, since we have a little bit of a different teams in

11 front of us, I exceptionally would like to ask the parties to present

12 themselves for the Prosecution.

13 MR. TIEGER: Good morning, Mr. President, Your Honours. Alan

14 Tieger and Mark Harmon with Carmela Javier, case manager, for the

15 Prosecution.

16 JUDGE ORIE: Thank you. And for the Defence?

17 MR. JOSSE: David Josse, Your Honour. I've got Mr. Stephen

18 Karganovic, our case manager, and assisting me, Ms. Kelly Pitcher and Ms.

19 Hellen Reynolds who has not been in this courtroom before.

20 JUDGE ORIE: Yes. Welcome in this courtroom, Ms. Reynolds. Mr.

21 Josse, do I understand that lead counsel will not be present today?

22 MR. JOSSE: That's correct, Your Honour.

23 JUDGE ORIE: Yes. That's -- then today, the main item on our

24 agenda will be that the Chamber will hear any submissions under Rule 98

25 bis by the parties. But before I give an opportunity to do that, I'd

Page 17058

1 first like to give a decision on the 8th batch of 92 bis witnesses which

2 was still pending and where some new submissions were made.

3 Therefore, I now deliver this decision on the 8th batch of 92 bis

4 witnesses.

5 I briefly recall that the Chamber is seized of the Prosecution's

6 motion for the admission of 92 bis evidence filed on the 6th of June

7 2003, known as the 7th motion, and the Prosecution's 15th motion dated

8 the 20th of May 2005, which consolidates the remaining 92 bis matters for

9 the Prosecution's case.

10 Is there any problem, Mr. Josse?

11 MR. JOSSE: My computer screen is not working, Your Honour. I

12 was going to wait until after Your Honour delivered his judgement.

13 JUDGE ORIE: I'll then continue with the decision and perhaps at

14 the same time some technician can look at your screen.

15 MR. JOSSE: Thank you.

16 JUDGE ORIE: So therefore I now continue delivering the decision.

17 This last batch of Prosecution evidence at this stage of the case -- this

18 is the last batch of Prosecution evidence at this stage of the case and

19 it is therefore desirable to dispose of the matter prior to the Rule 98

20 bis submissions.

21 Mr. Registrar, may I ask you to hand out to the parties a list

22 showing the names of the 92 bis witnesses and related material which is

23 admitted into evidence by virtue of today's decision. One of these

24 witnesses is protected and therefore this handout is to be filed under

25 seal.

Page 17059

1 I will now deliver the Chamber's decision concerning these

2 witnesses. The Chamber has as usual gone through all the proffered

3 material, making its own assessment of the suitability of the material

4 for admission. In relation to witnesses Zujo and Mesic, on the 15th of

5 July, the Prosecution reviewed and resubmitted the material as requested

6 by the Chamber in its oral decision of the 28th of June in a clearer and

7 more ordered form, cutting down the number of documents. However, the

8 Defence still expresses difficulties with certain portions of the

9 material presented. These concerns are found in the Defence's e-mail

10 response of the 1st of August 2005. The Defence notes that the material

11 includes numerous parts signed by people other than Zujo and Mesic.

12 However, the Chamber does not share the Defence's opinion that

13 the material must be clearly divided into material attributed to one of

14 the other of the two witnesses. Where such documents are associated with

15 the investigations that Zujo and Mesic were involved in, it is

16 appropriate to admit them with the reports because they may be said to

17 form part of the reports which were the collective work of several

18 people.

19 This does not mean that persons other than Zujo and Mesic are

20 being admitted as 92 bis witnesses. It merely means that documents made

21 by those other people are admitted through Zujo and Mesic and are treated

22 accordingly, in other words, as documentary evidence connected with the

23 expert reports. The primary evidence is the work that Zujo and Mesic

24 authored or co-authored to the extent that this can be determined. That

25 is the evidence of the two witnesses which is admitted pursuant to Rule

Page 17060

1 92 bis. This 92 rule -- to this Rule 92 bis decision.

2 The Defence raised additional issues in an e-mail which was sent

3 one day after the e-mail we just referred to. They included the

4 observation that certain documents in the submitted material contained

5 tendentious assertions. The Chamber does agree with the Defence that,

6 for example, reference to the "Serb aggressor" are vague and likely to be

7 given little weight. However, they are not a reason for non-admission.

8 The statement of many 92 bis witnesses admitted thus far contained

9 similar vague references. This goes to weight.

10 The Chamber has noted that several autopsy results do not

11 reliably determine or in some cases do not in themselves provide

12 sufficient information for making a determination about the ethnicity of

13 the victims. Evidence of this kind may be insufficient to support any

14 allegation in the indictment and will be treated accordingly. However,

15 despite the apparent lack or relevance of some of the evidence, it is

16 more efficient at this late stage of the proceedings to admit that

17 evidence and ignore the uninformative portions later on rather than to

18 try to single those portions out now and remove them from the proffered

19 reports.

20 The other substantial issues raised by the Defence in the

21 aforementioned e-mail have been covered by what we have said until now.

22 The evidence of Zujo and Mesic is therefore admitted, subject to the

23 above qualifications.

24 We now turn to Witness Dobraca. The Defence has no objection to

25 the admission of the requested evidence as shown in the handout. The

Page 17061

1 Chamber agrees that it meets the 92 bis admissibility requirements. It

2 is therefore admitted.

3 In respect of Witness Kaiser, the Chamber already admitted into

4 evidence the report of this expert witness but not yet the transcript.

5 The Chamber invited the Prosecution to explain whether it intended to

6 seek admission of the transcripts in their entirety. Prosecution

7 informed the Chamber that it sought admission only of the highlighted

8 parts of the transcripts of the 1996 Rule 61 hearing and that it was

9 withdrawing the Blaskic transcript from its application.

10 The Defence has no objection to the admission of the Rule 61

11 transcript. This has been checked by the Chamber and the highlighted

12 parts of the transcript are now admitted into evidence.

13 I now turn to Witness Wright. By its oral decision on the 6th

14 batch of Rule 92 bis witnesses on the 28th of June, the Chamber admitted

15 into evidence both requested transcripts of the 26th and the 29th of May

16 2000 but it was subsequently noted that no portion of the 29th of May

17 transcript and only a few pages of the 26th May transcript were

18 highlighted. After clarification by the Prosecution, it is now clear

19 that the Prosecution sought the admission only of the highlighted portion

20 of the 26th of May transcript and not of any part of the 29th May

21 transcript. The highlighted parts of the 26th of May transcript are the

22 items in evidence and the whole of the 29th of May transcript is

23 withdrawn from the evidence.

24 Mr. Registrar is kindly requested to delete this item from the

25 list of exhibits in this case.

Page 17062

1 Lastly, Witness 674, in the 15th motion the Prosecution requested

2 the Chamber to admit a corrective statement dated 2003 to an original

3 statement not listed for admission, dated 1998. On the 12th of July, the

4 Prosecution filed a clarification to the Prosecution's 15th motion and

5 informed the Chamber of its wish to request the admission of the 1998

6 statement as well. The Defence did not object to either one of the

7 statements being admitted and the Chamber has decided to admit both in

8 evidence.

9 The Chamber requests the Prosecution to submit the material

10 admitted through this decision to Mr. Registrar. In due course, Mr.

11 Registrar will assign exhibit numbers to these items and inform the

12 parties and the Chamber.

13 This ends the Chamber's decision on the 8th batch of 92 bis

14 witnesses.

15 Mr. Josse, as you may have noticed, reference was made a couple

16 of times to e-mail submissions which of course are not registered in any

17 way. The Chamber briefly summarised what was the core of these e-mail

18 submissions. I can however imagine that the Defence would insist on

19 having the whole of these e-mails setting out their position being filed

20 in such a way that if need would ever than an Appeals Chamber or at a

21 later stage we could rely on those e-mails rather than have them lost

22 somewhere. I would like you to consider whether, in view of the decision

23 given by the Chamber, you think that the Defence position is sufficiently

24 clarified in the decision itself, if the reference is clear enough; if

25 not, usual invited to make an application or to ask the Chamber to have

Page 17063

1 these e-mails as part of the proceedings and file them.

2 MR. JOSSE: That's very helpful, Your Honour. I'll obviously

3 discuss it with Mr. Stewart who I can tell the Court dealt with the

4 submissions in relation to those particular witnesses.

5 JUDGE ORIE: Then unless there would be any other procedural

6 issue to be raised at this very moment, the Chamber is willing to hear

7 any submissions the parties would like to make in respect of the

8 possibility of entering a judgement of acquittal under Rule 98 bis. And

9 I think, Mr. Josse, that I follow the -- well, tradition is a too much at

10 this moment, since Rule 98 bis has been amended quite recently, but at

11 least I follow the practice in other Chambers if I give you first an

12 opportunity to make whatever oral submissions would you like to make in

13 this respect.

14 MR. JOSSE: Thank you, Your Honour. I was aware that I was

15 likely to have to go first. Before I begin, having had a brief

16 conversation with Mr. Krajisnik this morning, he asked me to make it

17 clear to the Chamber that he asserts that in his view, the Prosecution

18 have failed to substantiate their case and that the whole of the

19 indictment should be dismissed. He understands that I'm going to now

20 make some specific legal submissions for his benefit, as well as anyone

21 else's. I of course make it clear that anything I say in no way amounts

22 to a concession so far as Mr. Krajisnik and the Defence are concerned.

23 Your Honour, the first matter that I invite the Chamber to

24 consider is whether in fact the accused is prejudiced by the change in

25 the Rule. The Court is familiar with the fact that Rule 98 bis was in

Page 17064

1 fact amended on the 4th of December of last year, in other words, in the

2 middle of this trial. The Court is also aware of the formulation of

3 words in Rule 6(D) of the Rules which I will briefly read, if I may - so

4 it's Rule 6(D) of both the old and indeed the existing Rules - which says

5 "An amendment shall enter into force seven days after the date of issue

6 of an official Tribunal document containing the amendment but shall not

7 operate to prejudice the rights of the accused or of a convicted or

8 acquitted person in any pending case."

9 Now, to my knowledge, the matter was raised by the Trial Chamber

10 in the case of Oric, where a similar issue arose, namely the Rule was

11 changed I think shortly after that case had begun, in fact. But it

12 matters not. I've got a small bundle of documents that I'm going to hand

13 up. Perhaps I could hand them all up in one go. It would be easiest.

14 It includes a reference to the discussion, if I can put it like that,

15 between Judge Agius and counsel in the Oric case. Perhaps I could hand

16 those out.

17 JUDGE ORIE: Yes. Perhaps you hand out the whole lot of material

18 so that we don't have to distribute them again at a later stage, all the

19 documents. And it was quite helpful, Mr. Josse, to inform the Chamber

20 prior to this hearing what material you would like to distribute so that

21 we could already have a some look at it.

22 MR. JOSSE: That's right, Your Honour. I have not produced the

23 whole of what amounted to quite a lengthy exchange between Judge Agius

24 and counsel in that case. There are two extracts that I want to deal

25 with. The first is - and there aren't a lot of documents there - if Your

Page 17065

1 Honour looks at the bottom of one of the pages it says page 7879.


3 MR. JOSSE: At page 7879, in fact let me tell the Court, is

4 towards the end of what was a lengthy exchange. In fact what happened

5 was this: Judge Agius outlined what he felt was the correct new

6 procedure. He heard submissions from the parties. There was then a

7 short break, in fact and after the break he came back into court. And at

8 line 11, he says that there was another matter he needed to mention, and

9 this relates to the retroactive application of the amended Rule. You

10 know as much as we do that we have Rule 60 of the Rules which provides,

11 and I won't read it out again, Your Honour. We then go to line 17.

12 Judge Agius continues, "I have not heard any submissions, and I

13 would have expected those submissions to come from my right side." I

14 think he means the Defence.

15 Mr. Jones on behalf of the accused says, "Yes."

16 The learned Judge continues, "I have not heard any submissions

17 that -- to the effect that the application of the current Rule 98 bis

18 would prejudice the rights of the accused."

19 And Mr. Jones says, "Yes."

20 And for the record I should confirm that we don't wish, we

21 wouldn't say that it prejudices the accused's right. And so clearly on

22 behalf of the accused Oric, Mr. Jones was not taking the point.

23 However, in this case, we contend that the accused is so

24 prejudiced. Your Honour, there are two ways I wish to illustrate that.

25 The old Rule clearly allowed for a comprehensive review of all matters

Page 17066

1 contained in the indictment. By way of example are the schedules which

2 it appears is clear from a number of cases, which I could if need be

3 cite, were reviewed entry by entry, line by line. And if it is accepted

4 by the Defence that the new Rule does not envisage that and clearly

5 doesn't allow it. I mean, it would be absurd to allow oral applications

6 in relation to that because it would be an extremely ungainly and very

7 difficult to manage and take an awfully long time.

8 It's submitted that on this point alone, the Defence can

9 illustrate the prejudice because there can be little question that if a

10 specific line or part of the schedule were removed or deleted under the

11 old Rule 98 bis the Defence would be better off. We contend that's the

12 case for two reasons. Firstly, because it means of course that the

13 accused and the Defence wouldn't have to worry about that particular

14 line, wouldn't have to contemplate calling evidence in relation to it as

15 part of the accused's case, and secondly and perhaps more importantly

16 because by the removal of any given line of the schedule, it is

17 axiomatic, we contend, that the case the accused faces will inevitably be

18 less serious. I accept not to any great extent, but still to some

19 extent. Of course it depends on what part of the schedule in relation to

20 the degree of seriousness. But, Your Honour, perhaps more fundamental in

21 relation to this submission is how it impacts on the primary submission

22 that I wish to make today in relation to this indictment. And that

23 relates to the reference in Counts 1 and 2 to both Bosnian Muslims and

24 Bosnian Croats.

25 Your Honour, the Defence submission in a nutshell, and I'll

Page 17067

1 develop it in a few moments' time, that there is insufficient evidence

2 which would allow the case to proceed beyond this point in relation to

3 Bosnian Croats as opposed to Bosnian Muslims. And I'll come back, if I

4 may, to the substantive issue in a moment but I just like to continue

5 with what I'm saying about the old Rule and the new Rule. It may be that

6 this Chamber will decide that the new Rule does not allow the Defence to

7 make the submission in relation to Bosnian Croats in Counts 1 and 2

8 because it's -- to use an expression, it's tinkering with the indictment

9 rather than dealing with a count in the way that the new Rule envisages.

10 If that is right, a clearer case of prejudice to the accused would be

11 hard to imagine, because it's apparent that the indictment in Counts 1

12 and 2 really makes two completely separate allegations and as I say I'm

13 going to develop this in a moment. One is genocide against Bosnian

14 Muslims and the other is genocide against Bosnian Croats. They are

15 really two completely separate issues.

16 Could I make it clear, Your Honour, I submit that both under the

17 old Rule and the new Rule, this is a point the Defence are entitled to

18 take at this stage of the proceedings.

19 However, were the Court against me and say no, the new Rule does

20 not now apply, I would submit strongly that that is, as I've already

21 said, the clearest example of prejudice to the accused by the application

22 of the new Rule. It's clearly far more fundamental than the schedule

23 issue that I mentioned and I've relied upon earlier.

24 Your Honour, could I begin so far as this is concerned, by simply

25 outlining and perhaps accepting what the appropriate test is in relation

Page 17068

1 to Rule 98 bis applications? Because it does appear that notwithstanding

2 the change in the Rule, the law in relation to insufficiency of

3 evidence -- perhaps I shouldn't say appears. I contend the law hasn't

4 changed and a convenient enunciation of that -- of the law as applied in

5 this Tribunal I would submit can be found in the Rule 98 bis Milosevic

6 decision. Now, Your Honour, the Court is aware that of course was

7 decided under the old Rule so Your Honour needs to bear that in mind and

8 I provided that in the short handout. It's at the first page of the two

9 page handout, says 3, application of Rule 98 bis, the law, and it's 8,

10 "Rule 98 bis provides as follows." Now, Your Honour, I don't propose to

11 read very much of this out. I simply take Your Honour to it because it

12 sets out how the law developed here in the case of Jelisic and then and -

13 excuse my pronunciation, it hasn't improved very much although I have

14 tried very hard in that regard - Delalic. And then turning the page it

15 in fact quotes quite extensively from an English case that I can

16 pronounce called Galbraith, which is the modern English pronunciation on

17 this very subject and there is a lengthy passage from I think it was Lord

18 Lane's judgement at paragraph 12 of this decision. And then at paragraph

19 13 of this decision, the matter is summarised.

20 And again, unless Your Honour wishes me to read through it

21 paragraph by paragraph, it's there and I simply felt it my duty before I

22 dealt with the substance of my submission, to outline what the test is.

23 In fact if we look at the very last of the seven subcategories to

24 paragraph 13 we see it says, "when in reviewing the evidence the Trial

25 Chamber makes a finding that there is sufficient evidence, that is taken

Page 17069

1 to mean that there is evidence on which a Trial Chamber could be

2 satisfied beyond a reasonable doubt of the guilt of the accused." And of

3 course the important word is could rather than would. I accept that and

4 that's the point in hand now.

5 But I'm not going to dwell on that. There is, I contend, no

6 dispute about the correct test that the Chamber needs to apply at this

7 stage. The test remains the same under both the old Rule and the new

8 Rule and for what it's worth there are parts of this rather lengthy

9 discussion that Judge Agius had with counsel where Judge Agius said

10 exactly that.

11 Moving on, the Chamber will, I suspect, also be relieved that for

12 the presentation of my argument, I am not going to go in great detail

13 through the elements of the offence of genocide. Clearly, in order to

14 consider whether what I'm contending is right, namely there is

15 insufficient evidence so far as Bosnian Croats are concerned, put another

16 way I suppose what I am saying is that there is insufficient evidence on

17 which a Trial Chamber could be satisfied beyond reasonable doubt of the

18 guilt of the accused in relation to genocide of Bosnian Croats. Clearly,

19 in order for the Chamber to consider that submission, it's going to have

20 to look closely at the various elements of the offence of genocide

21 because Your Honours, to state the obvious, the Court is going to have to

22 consider genocide in relation to Bosnian Croats and Bosnian Muslims. And

23 the Chamber are aware that the elements that need to be proved by the

24 Prosecution are, one, an intent; two, that is to destroy; three, in whole

25 or in part; four, a national ethnical racial or religious group; and the

Page 17070

1 fifth element is the use of the words "as such" in the article. And it

2 may be worth briefly looking at Article 4 of the Statute to remind

3 ourselves of what that says in subarticle 2: "Genocide means any of the

4 following acts committed with the intent to destroy in whole or in part a

5 national, ethnical, racial or religious group as such," and then it

6 details the acts that can be used to prove the offence of genocide.

7 Could I return briefly to why I submit that for all intents and

8 purposes, Counts 1 and 2 are two different allegations. Could I say

9 this, Your Honour? It may be that there is a technical argument that the

10 Defence could have advanced, perhaps at an earlier stage rather than now,

11 that the charge -- again if I could be excused using the English

12 expression, is duplicitous. But the Defence take no point in that

13 because clearly, were this Chamber to decide, again if I could use a

14 colloquial English expression again, that my client had a case to answer

15 in relation to both Bosnian Muslims and Bosnian Croats so far as the

16 offence of genocide is concerned, then in due course a reasoned judgement

17 will be given in relation to the case as a whole and all parties will

18 know where they stand. And so the fact that they are lumped together in

19 one count perhaps doesn't matter a great deal. Having said that, that is

20 no reason why the Court shouldn't consider them separately at this stage

21 of the case.

22 And, Your Honour, it's a very obvious point which perhaps I

23 haven't made and I should have done, namely this: That it will make a

24 significant difference for the presentation of the Defence case, if there

25 is insufficiency of evidence so far as Bosnian Croats are concerned on

Page 17071

1 the offence of genocide. I mean, it clearly is of real importance to the

2 presentation of the Defence case, the ruling that is made so far as that

3 is concerned. Because the Defence will know in relation to what is

4 undoubtedly the most serious offence on this indictment where they stand

5 so far as that allegation is concerned because I emphasise yet again they

6 clearly are two distinct and separate allegations because they are two

7 distinct and separate racial groups. And it's quite clear from the

8 reading of Article 4(2) that the fact is the ethnic makeup of the group

9 is of importance.

10 And just perhaps -- whilst I'm developing that, could I contrast

11 that if I may with all the other counts on the indictment, were I not to

12 take the point, all the other counts talk -- and we could look at Count 3

13 by way of example, but they are all drafted in more or less the same way.

14 Count 3, paragraph 18, two lines from the bottom of the version I've got,

15 it talks about the preparation or execution of persecution of the Bosnian

16 Muslim, Bosnian Croat or other non-Serb populations. Well, the point is

17 this: That there it actually is not, I say, material to the count

18 whether the Prosecution have proved the persecution is against Bosnian

19 Muslims or Bosnian Croats, because the nature of the article -- we could

20 look at the article if need be, that the defendant is alleged to have

21 transgressed, namely Article 5 so far as a crime against humanity is

22 concerned. It's not material, it doesn't matter what the racial origin

23 of the member of that group is.

24 If one looks at Article 5, just by way of example, it talks about

25 "persons responsible for the following when committed in armed

Page 17072

1 conflict... and directed against any civilian population." So the

2 particularisation by the Prosecution that they are Bosnian Croats,

3 Bosnian Muslims or other non-Serbs which I'm going to come to a bit

4 later, but it doesn't -- is a particularisation which is ultimately

5 material. In Count 1 and 2 the distinction between Croats and Muslims is

6 fundamental and material to the offence. In other words, the nature of

7 the racial group has to be charged because of the way Article 4 is

8 understandably drafted. It's the whole essence of genocide, after all.

9 I submit on behalf of my client that this is a case that has been

10 presented to this Chamber over a considerable period of time of

11 allegations of genocide against Bosnian Muslims. There is evidence of

12 what I will term wrongdoings, perhaps even atrocities against Bosnian

13 Croats, but in no meaningful sense can this trial be said, I contend, to

14 be a trial involving the genocide of Bosnian Croats. And whilst what I'm

15 saying there perhaps doesn't amount to a legal submission, the essence of

16 the case is an important consideration and is something that I urge the

17 Chamber to take into account even at this stage.

18 Now, I went through the elements of the offence of genocide a

19 little earlier. I am not going to deal with the thorny and difficult

20 question of the law of intention in relation to the offence of genocide

21 but I am in no way conceding that there is evidence as far as Bosnian

22 Croats and the allegation of genocide is concerned which is capable of

23 supporting the Prosecution's allegation. For ease of presentation, as

24 much as anything else, I'm bound to say, I am not at this juncture

25 dealing with that particular element of the offence. I would, however,

Page 17073

1 like to say a few words about the element described as "to destroy" in

2 the Article. The accused or the accused in concert with those he's

3 alleged to be involved in a joint criminal enterprise with, must be

4 proved to intend to destroy Bosnian Croats. I submit that evidence of a

5 desire and/or intention to cause suffering and/or to discriminate is

6 insufficient. It's our submission that the Prosecution must prove

7 physical destruction.

8 Not enough to prove that those involved in the joint criminal

9 enterprise were simply involved in ethnic cleansing. It's submitted that

10 what must be proved is an intention to destroy the Bosnian Croats in

11 their physical or biological existence, and that has not been achieved by

12 the Prosecutor in this case.

13 Similarly, if I could turn to the use of the words, "in part"

14 because clearly there is a case where the Prosecution allege both

15 actually that there was genocide in part and that was the intention of

16 the accused and those involved in the joint criminal enterprise. So far

17 as in part is concerned, the Prosecution it's submitted must prove that

18 the destruction of that part, if carried out, would have an impact on the

19 whole group's survival. This can only be done when there is credible

20 evidence that the destruction of that part could have an effect upon the

21 survival of the group. And so far as Bosnian Croats are concerned again

22 it's submitted that there is not sufficient evidence for this Chamber to

23 allow that element of the count to proceed further.

24 So, Your Honour, that really is my primary submission today.

25 May return to it very briefly in my conclusion which will not be

Page 17074












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

13 English transcripts.













Page 17075

1 very far away. But could I move on to three matters where in discussion

2 that I've had over the last few days with the Office of the Prosecutor,

3 the parties have come to agreement and where, in fact, as much as

4 anything for clarification, I'd like to draw some matters, if I may, to

5 the Chamber's attention.

6 The first is this: We spotted that there was an internal

7 contradiction in the indictment because in paragraphs 15 and 16,

8 paragraph 15 talks about the "partial destruction." In paragraph 16 it

9 talks about an intent to destroy in part. But then in paragraph 17, the

10 word "partial" is not used. It simply talks about "the destruction of

11 these groups was affected by." Well of course that must be wrong because

12 the Bosnian Croats weren't, in fact, destroyed so that must -- should

13 read "partial destruction."

14 But of more concern to the Defence was paragraph 28, if Your

15 Honours would go to that, please. Because in paragraph 28, it talks

16 about "all acts or omissions charged as genocide or complicity in

17 genocide were committed with intent to destroy in whole or in part

18 Bosnian Muslims and Bosnian Croats, national, ethnical, racial or

19 religious groups as such." We were concerned about the use of the words

20 "in whole" because clearly paragraph 28 relates to intention. The

21 earlier parts of the indictment talked about an intention to destroy both

22 groups in part. And I'm grateful to the OTP because they have made it

23 clear to me and I'm sure they will to the Chamber if a few moments' time

24 that their case is an intention to destroy in part and that the words "in

25 whole" shouldn't actually be there.

Page 17076

1 Next, Your Honour, there was concern from the Defence, and I've

2 alluded to these words in a different context a few moments ago, of the

3 use in all counts, 3 to 8, not 1 and 2, rather illustrates the point I

4 was making a moment ago, of the words, "or other non-Serb populations."

5 In effect I asked the Prosecutor to clarify what was meant by the words

6 "or other non-Serb populations." And they have helpfully indicated that

7 those words are, I hope I can use the expression, meaningless in this

8 indictment, that the allegations of persecutions, extermination and

9 killing, deportation and inhumane acts relates only, if I can use the

10 word advisedly, to Bosnian Muslims and Bosnian Croats. And as I already

11 said, and I mention it again simply to emphasise what I've said earlier,

12 I make no submission so far as Bosnian Croats are concerned in relation

13 to Counts 3 to 8. I accept the sufficiency of evidence for the purposes

14 of this submission so far as those counts are concerned, and I've also

15 been at pains, I hope, to explain why I say the ethnic or national

16 character of the victims of those alleged crimes, namely Bosnian Croats

17 and Bosnian Muslims, doesn't actually matter, whereas it is the very

18 essence of the offence of genocide. I simply mention that again. I hope

19 to make clear what my position is and what my primary submission is

20 today.

21 Finally, in terms of clarification, in Count 3, there was some

22 concern in paragraph 18 on the part of the Defence as to whether the

23 Prosecution had in fact called sufficient evidence in relation to all the

24 municipalities mentioned at the top of page 8, and I'm told the

25 Prosecution concede that there isn't -- insufficient evidence so far as

Page 17077

1 Rudo and Sipovo are concerned and they are not relying on those two

2 municipalities. So I'm grateful for that.

3 Well, Your Honour, before I conclude my submissions today, I've

4 contended in the last few minutes that the Defence have been prejudiced

5 by the change in the Rule, and in effect I've asked the Court to consider

6 that as my first, if not my primary submission. However, if the Court

7 took the view that there is no prejudice and there is no need in effect

8 to go back and deal with this matter under the old Rule, then I contend

9 that in any event the new Rule, which will clearly be the Rule that you

10 would deal with and make a ruling under, does make a further fundamental

11 change and it's this: It makes Rule 98 bis Chamber-driven rather than

12 party-driven. And in other words, I contend, it is incumbent on the

13 Trial Chamber to fully review the counts and be satisfied, to use again

14 the English expression, that the accused has a case to answer on each and

15 every count and of course, give reasons for that conclusion. The matter,

16 if I may say, is well expressed by Judge Agius in the last passage of the

17 Oric transcript that I would like to rely upon today. If Your Honour

18 would look at the two-page -- it may be a three-page extract from the

19 Oric judgement, the one that in the middle of the page says page 7854.

20 At line 19, above, this is Judge Agius speaking, line 18, he says:

21 "And you will also notice that the new Rule 98 bis motion does

22 not say that at the close of the Prosecutor's case 'the Trial Chamber

23 may,' but it says 'shall.' So the first message, or the first conclusion

24 to be drawn on the face of it from the new Rule 98 bis is that it has

25 become mandatory now for the Trial Chamber to embark on this Rule 98 bis

Page 17078

1 acquittal exercise at the end of the Prosecutor's case and need not wait

2 for the Defence to file or to make any application for the acquittal of

3 the client. So that is point number one, and I would like you to

4 understand it from the very beginning.

5 "Next thing, it says 'by oral decision.' So you will immediately

6 notice that what previously was essentially a written decision has now

7 become an oral decision. Let me explain something which -- the only

8 thing that I think is relevant in this context. The fact that we are now

9 saying by oral decision does not in any way diminish or do away with the

10 duty of the Trial Chamber to make sure that its oral decision is a

11 reasoned one. Prior to the amendment in December 1998 there would have

12 been a written decision, even in most cases as it was preceded by the

13 oral decision. In both the oral decision and -- but particularly in the

14 written decision, the decision to acquit or not to acquit was always

15 motivated and the reason is not only because giving reasons decision is a

16 matter of natural justice, it's a modern development in the area or in

17 the concept of natural -- principles of natural justice, for those who

18 believe in natural justice.

19 And I skip the next few lines because he deals with the context

20 and the concept, perhaps I should say, of natural justice. And then, at

21 line 20, he deals with the right to appeal and the reason why a reasoned

22 decision is important so far as that's concerned.

23 At the bottom of the page, that is where it says page 7855, the

24 learned Judge continues:

25 "Appeals were dealt with and determined with the utmost celerity;

Page 17079

1 and secondly, the case, the trial will not stop pending the determination

2 of the appeal. For these same reasons, I need hardly, therefore, repeat

3 to you that our oral decision will of course be a reasoned one, a

4 reasoned one. So do not expect any surprises on -- in that context. And

5 of course and after the hearing of the oral submission of the parties,

6 basically this mean that you will both be given the opportunity to be

7 heard, to make submissions, if you want to make submissions. No one will

8 be forced to make submissions. And after then," I beg your pardon, "And

9 after that, we are then expected by the new Rule 98 bis to enter a

10 judgement of acquittal on any count there is no evidence capable of

11 supporting a conviction."

12 What I take Judge Agius to be saying in that passage, Your

13 Honour, is this: That regardless of whether the Defence make a

14 submission, it's the duty of a Trial Chamber at this stage of the case,

15 under the new procedure, to review the evidence and to be satisfied that

16 the accused has a case to answer in relation to all the counts that he

17 faces. And of course, if the Trial Chamber does conclude that he has a

18 case to answer or indeed if he concludes that he doesn't have a case to

19 answer, it's then incumbent upon the Trial Chamber to give a reasoned

20 judgement so far as that is concerned. That's clear from the words of

21 Judge Agius. I would adopt what the learned Judge was saying there and

22 contend that if the court decides to proceed by way of the old Rule, I

23 beg your pardon, by way of the new Rule, it's incumbent upon the Chamber

24 at this stage to review all the evidence and give a full reasoned

25 judgement in relation to all eight counts.

Page 17080

1 Those are my submissions.

2 JUDGE ORIE: Thank you, Mr. Josse.

3 Let me first -- before we give an opportunity to the Prosecution

4 to respond, perhaps after a break see whether there are any questions by

5 the Bench at this moment for you so that we could -- at least also the

6 Prosecution could take your answers into consideration while preparing

7 its response.

8 [Trial chamber confers]

9 JUDGE ORIE: Mr. Josse, I would have one question for you in

10 relation to Rule 6(D). You referred to the prejudice the accused might

11 suffer under the new Rule. May I ask you whether any -- what right

12 exactly is involved? Because Rule 6(D) reads "but shall not operate to

13 prejudice the rights of the accused." Would -- well, let me try to give

14 you an example. If, for example, the time limit for responding to

15 motions would be cut back from, in general, from 14 days to 12 days,

16 would that be -- could that rule not apply in any pending case because it

17 would operate to prejudice the rights of the accused? You understand the

18 question is whether there is a right to respond, or whether the 14 days'

19 time limit is the specific right granted to an accused. So where to draw

20 a line between -- well, I would say inconvenience caused by the change of

21 a Rule and what rights might be envisaged when Rule 6(D) was drafted,

22 because you -- prejudicial to the accused, prejudicial to the right of

23 the accused. You understand, I hope, my question.

24 MR. JOSSE: I do, Your Honour. And the best I can do in response

25 is really I suppose reiterate one point that I made in particular, namely

Page 17081

1 this: Firstly, were the Chamber to take the view that under the new rule

2 my basic submission so far as Bosnian Croats was concerned was not

3 permissible under the new rule a clearer example of a man's rights, man

4 being deprived of his rights would be hard to imagine because it would

5 mean that he would still is have a case to answer in relation to

6 allegation of the utmost seriousness, and if that doesn't connotate a

7 deprivation of a right, i.e. deprivation to make that submission, it's

8 hard to imagine what else could be envisaged by the drafter of the Rule.

9 But even if I'm wrong about that, I still contend that - or

10 perhaps I should say not so much if I'm wrong about that but even if the

11 Chamber was to take the view that I'm entitled to make the submission

12 under the new Rule - the accused's rights, I contend are still affected

13 by the fact that he's unable under the new Rule to go through the

14 indictment line by line, almost letter by letter, in the way that the old

15 Rule envisaged. That was a right that he had, a right he could exercise

16 at this particular stage of the case, by motion, it's fair to say, rather

17 than naturally in the way that the new Rule envisages. But I submit that

18 that is a right and that right will -- has disappeared by reason of the

19 Rule change. I recognise, if I may say, that the Rule change was

20 implemented as much as anything for practical reasons but of course the

21 practical reasons might impinge on rights and I submit that it does do

22 exactly that.

23 JUDGE ORIE: May I then ask you as that follow-up question, where

24 is that right -- whether let's for example concentrate on the line by

25 line going through not only through the indictment but also through the

Page 17082

1 schedules. Let's say for example you would like to argue that there is

2 no case to answer on execution and Ilijas of 18 Bosnian Muslims because

3 there would be evidence only for 12 so therefore at least six should be

4 taken out. Where is that right defined under the old Rule 98 bis? What

5 I'm asking you is: Are you saying that the underlying reasons for

6 amending the Rule would affect the practice as it had developed until

7 then? Because where do I read in the old Rule that you could go in your

8 motion line by line, apart from practice, perhaps, in some cases where

9 you find in quite some detail that on some lines there is no evidence.

10 So I'm trying to explore exactly what has changed, what rights were

11 granted, what was practice rather than established right.

12 MR. JOSSE: Well, obviously I needed to look at the practice of

13 the Tribunal when I began this particular exercise. In fact, though I

14 found an older case, as good an example of any is the Milosevic Rule 98

15 bis decision because -- I have the whole decision here. If one looks at

16 paragraph 309 at page 73 of the decision, there then follows in excess of

17 15 pages in table form of repetition, reproduction, perhaps I should say,

18 the of the relevant parts of the schedule where each party has made

19 submissions literally line by line so far as particular events that took

20 place and box one it says, in fact -- of course the accused, Your Honour

21 is aware is not represented in that case, box one says "the amici curiae

22 submits"; box two says "the Prosecution submits"; and box three says "the

23 Trial Chamber finds." And then in the fourth box, there is a reference

24 to the evidence on the subject. So for example the one I'm looking at is

25 a witness who I know has given evidence in this case, maybe by 92 bis,

Page 17083

1 Professor Tabeau, as where the evidence could be found. So that's where

2 the practice is clearly established. So far as the new Rule is

3 concerned, they have not been very many cases that have got to this stage

4 since it was brought into force in December of last year. The Oric case

5 being the only one that I've examined. I don't know whether that -- I

6 know in Halilovic, no Rule 98 bis submission was made and then I don't

7 know what happened, I rather suspect, I can't swear to this, that the

8 Chamber didn't undertake the task that I've invited it to undertake

9 pursuant to the very last submission that I made. So the new Rule is not

10 tried and tested I think it would be fair to say, Your Honour, and that's

11 why I looked particularly at what Judge Agius said, and as Your Honour

12 knows far better than I do, he of course was chairman or president of the

13 Rules Committee.

14 JUDGE ORIE: Thank you for these answers, Mr. Josse. Since there

15 are no other questions to you at this moment from the Bench, I suggest

16 that we'll have a break.

17 I'm looking to you, Mr. Tieger. Do you know how much time

18 approximately you would need also to determine how much time there would

19 be available for you to take for preparing your response?

20 MR. TIEGER: I would say that certainly no extraordinary break is

21 needed. So whatever --

22 JUDGE ORIE: Half an hour?

23 MR. TIEGER: That would be fine, Your Honour. I should mention,

24 as I was intending to at the beginning of my submissions that both

25 parties have had the benefit, as counsel has mentioned, of discussion.

Page 17084

1 That has enabled us to focus on the matters genuinely at issue and that's

2 one of the reasons why no lengthier break is required.

3 JUDGE ORIE: We will then adjourn until quarter past 12 and then

4 the Prosecution will have the opportunity to respond.

5 MR. JOSSE: May I mention one matter? I do have here, and it was

6 in the e-mail that I sent to the legal officer yesterday, Your Honour,

7 the whole of the discussion, if I put it, that Judge Agius had with

8 counsel.

9 JUDGE ORIE: Yes. That's -- I said -- the Chamber highly

10 appreciates that you indicated what material you would use and I've got

11 in the Oric case, page 7847 and up until 7878, and I hope that Defence is

12 not disappointed that I did not give a similar lecture as Judge Agius did

13 in that case.

14 MR. JOSSE: No, Your Honour, but simply bearing in mind the

15 question that Your Honour had asked, I think it may be worth Your Honour

16 and the Chamber reading that exchange.

17 JUDGE ORIE: Yes. Thank you very much. We will adjourn until

18 quarter past 12.

19 --- Recess taken at 11.46 a.m.

20 --- On resuming at 12.21 p.m.

21 JUDGE ORIE: Mr. Tieger, just before the break, I said that I

22 would give you an opportunity to respond, but I would rather say to make

23 whatever submissions the Prosecution would like to make also in response

24 to what the Defence has submitted until now. Please proceed.

25 MR. TIEGER: Thank you, Your Honour. The Prosecution submissions

Page 17085

1 will for the reasons I indicated earlier be essentially limited to a

2 response to the submissions the Court heard earlier this morning. Before

3 moving on to address the basic submission offered by Mr. Josse, perhaps I

4 should take up the three clarification matters he addressed and largely

5 confirm those, with one small clarification with respect to the

6 allegations of other non-Serb populations that he spoke of. He spoke of

7 three things, the municipality issue, and the partial destruction issue,

8 and then he raised the question of the allegations of, for example,

9 persecutions against Bosnian Muslims, Bosnian Croats or other non-Serbs.

10 I would indicate, as the Court is aware, that there has indeed been

11 evidence of crimes committed against other non-Serbs, in particular, as I

12 recall, Albanians and Kosovars and nothing I say at this point is

13 intended to gainsay the sufferings endured by those particular people but

14 it is correct to say, as Mr. Josse indicated, that the charges alleged in

15 the indictment are directed toward crimes committed against the Bosnian

16 Muslim and Bosnian Croat populations, and that's the thrust of the

17 Prosecution case. That's the emphasis of the Prosecution case. And with

18 respect to other non-Serbs, the Prosecution is -- has not intended to

19 make those crimes part of its presentation.

20 Let me then move on, Your Honours, to focus on the thrust of the

21 submissions made by Mr. Josse.

22 It's the Prosecution's submission that, in fact, Rule 98 bis, in

23 its current incarnation, does not countenance a line-by-line review of

24 the indictment, which would embrace counts 1 and 2 and an attempt to

25 parse out portions of those counts, and that this does not entail the

Page 17086

1 deprivation of any substantive right, as I will explain in a moment. Mr.

2 Josse points out that if 98 bis doesn't permit such a review, in the case

3 of the allegations contained in Rule -- in Counts 1 and 2, then there

4 will be some asserted impact on the accused. We would simply point out

5 that the proper remedy for the formulation in Counts 1 and 2 would have

6 been a motion under Rule 72 challenging the form of the indictment which

7 should have been made a long time ago. The fact that Rule 98 bis in fact

8 does not encompass the same provisions that another rule of the

9 indictment which was not invoked in a timely fashion, does, does not

10 change the fact that Rule 98 bis, number 1, doesn't permit the

11 line-by-line review sought by the Defence, with respect to the

12 allegations in Counts 1 and 2, and also does not result in a deprivation

13 of any substantive right as a result.

14 Now, the Court inquired about the nature of that right, as

15 referred to in Rule 6. The Prosecution would submit that the first

16 stopping point for an examination of whether or not a right is involved

17 would be Article 21 of the Statute which enumerates rights and we would

18 further submit that the right asserted by the Defence is not to be found

19 there. Now, assuming that it's appropriate to go beyond Article 21 in

20 determining whether or not a substantive right within the meaning of Rule

21 6 is involved, it would be then appropriate to look at the nature of the

22 asserted right itself, and in this case, we would be looking at the right

23 of a mid-trial review of some sort. And in that connection I would point

24 the Court to the decision on motion for judgement of acquittal that the

25 Defence has already alluded to of 16 June 2004, which discusses the

Page 17087

1 foundation of the mid-trial review, the no case to answer, in paragraph

2 11. As I think the Court will see, the critical aspect, or as the

3 Milosevic Chamber said, crucial to an understanding of the no case to

4 answer procedure, is the common-law distinction between the role of the

5 judge and the role of the jury, and that is, it arises from the judge's

6 oversight of another fact-finding body and the common law's concern that

7 the case will go to the jury, the jury may act on an emotional basis in

8 making a decision that is not founded on the actual evidence, and it

9 seeks to have the judge in that case balance the interests between

10 usurping the judge's role and precluding an emotional determination by

11 the jury which is not compatible with the -- with a strict review of the

12 evidence.

13 That distinction is clearly missing here, and then that rather

14 clearly I think accounts for the fact that the no case to answer rule did

15 not exist when this institution was formed, did not exist in the 1994

16 rules and was in fact not adopted until 1998. Now, the adoption of the

17 Rule in 1998 the Prosecution we would submit was not a reflection of the

18 determination that somehow a substantive right had been overlooked when

19 the Tribunal Rules of Procedure and Evidence were initially adopted, and

20 had been overlooked in quite a number of subsequent years, and I think

21 that is borne out by the fact that the ICC, as the Court can see in Judge

22 Robinson's dissent in the same opinion of June 2004, did not adopt any

23 provision for a no case to answer. Prosecution would submit that that is

24 a reflection of the determination that this is a procedure which is --

25 which arises from a uniquely common-law system and is not required in a

Page 17088

1 system where the judges who would be asked to make the mid-term

2 determination are in fact the judges who are making the final

3 determination.

4 But let's assume even for the sake of argument that Rule 98 bis

5 does reflect a substantive right of some sort. Then the question

6 becomes: What is that right and what is its relationship to a demand

7 that it embrace a line-by-line review of the indictment? Well part of

8 that answer is surely found in the title of 98 bis itself. It's an

9 acquittal provision. And that means an acquittal of the basic charges

10 that the accused faces. As Judge Agius himself said in the Oric case to

11 which counsel has alluded, charges and counts, the current formulation,

12 are essentially the same and viewed as the same in common-law

13 jurisdictions, and certainly when it's linked to the notion of acquittal,

14 it indicates quite clearly that the notion of a line-by-line review is

15 something quite different. It is for that reason, we would submit, that

16 the distinction was made in the course of the discussion about 98 bis in

17 the same Milosevic case to which we've been referring, between the Rule

18 itself and the practice that had developed in the Tribunal. And in that

19 connection, I would refer the Court to paragraph 13 of the Milosevic

20 decision, where the Court identifies and distinguishes between the

21 sufficiency of evidence to sustain a conviction on a charge, which is

22 Rule -- which is what Rule 98 bis according to that same decision talks

23 about, and the practice of the Tribunal, which had been up to that point

24 to consider the sufficiency of the evidence as it pertains to elements of

25 a charge, whether it was set out in separate paragraphs or in scheduled

Page 17089

1 items. Those are two different things, the dictates and mandates and

2 terms of the Rule and the practice that for whatever reason had developed

3 around it, a practice that I think the Court is aware had come

4 increasingly to be viewed with concern and to be subject to criticism.

5 In short, the Rule 98 bis in either permutation never dictated in

6 any sense a line-by-line determination of the indictment but for whatever

7 reason that practice had developed as part of the procedure, at least in

8 some cases, which accompanied the 98 bis determination. I think there is

9 a consensus here that that is no longer the case and that does not appear

10 to be disputed. What is at issue is the concern raised by Mr. Josse that

11 somehow the allegations in Counts 1 and 2 should now be embraced by 98

12 bis because they seem significant enough in the Defence's view to require

13 some remedial attention, that that should not -- that situation should

14 not exist and should be addressed in some manner by the Rules, and again,

15 we would submit that it is addressed by the Rules. It's addressed by

16 Rule 72, which identifies the opportunity for the -- for either party,

17 well, for the Defence, to challenge the form of the indictment at a much

18 earlier stage of the proceeding. For whatever reason that was to not

19 done and that was the appropriate remedy for the - if one was indeed

20 appropriate - for the concern raised by the Defence.

21 Now, finally -- well, not finally, Your Honour, but let me say

22 let's assume however for the purposes of this discussion that 98 bis does

23 require or permit a parsing out of Counts 1 and 2 and therefore a need to

24 focus on the quantum of evidence concerning genocide against Bosnian

25 Croats. It's the Prosecution's submission that ample evidence has been

Page 17090

1 adduced during the course of this case to support that parsed-out aspect

2 of Counts 1 and 2. Indeed, the Defence submission seems to be predicated

3 on the general notion that a clear distinction has arisen during the

4 course of this case between the objectives toward and the treatment of

5 Bosnian Muslims and Bosnian Croats. The Prosecution's submission is that

6 while there is a demographic difference between the two groups, a

7 numerical discrepancy that has clearly resulted in a greater number of

8 references to Bosnian Muslims in this case, that the objectives toward

9 and the treatment of the two groups were fundamentally the same for

10 purposes of this motion and I would like to explain that in further

11 detail.

12 First of all, without going into a lengthy discussion of the

13 evidence adduced in the course of this case, I think it's -- I can begin

14 by saying generally that the persecutory campaigns that are at the heart

15 of this case emerged from the intention of the Bosnian Serb leadership

16 and forces, according to the evidence, to secure Serbian ethnic territory

17 in their determination, to separate from the other two nations in Bosnia

18 and Herzegovina. And which was the first and most important goal of the

19 strategic objectives, as the accused himself said at the 16th Bosnian

20 Serb Assembly session. And on that occasion, in identifying that goal

21 and its primary importance, he also noted explicitly that it was about

22 separation from the other two national communities, meaning the Bosnian

23 Muslims and the Bosnian Croats. And as we'll see, the perspective on the

24 view of and the treatment of Bosnian Croats and Bosnian Muslims was not

25 meaningfully different, at least not meaningfully different for purposes

Page 17091

1 of this motion.

2 As Radovan Karadzic said on that same occasion, the first such

3 goal is separation from the other two national communities. Now, both of

4 those national communities, both the Bosnian Muslims and the Bosnian

5 Croats, were regarded as enemies. As Dr. Karadzic said, this is about

6 separation from those who are our enemies and who have used every

7 opportunity especially in this century to attack us and who would

8 continue with such practices if we were to stay together in the same

9 state. In discussing the common enemy, General Mladic, on the -- or on

10 that same occasion, the 12th of May 1992, at the 16th Bosnian Serb

11 Assembly session, also talked about both the Muslim and Croat people in

12 identifying the enemy. And he said: "The enemy has attacked with all

13 its might from all directions, and it is a common enemy, regardless

14 whether it is the Muslim hordes or Croatian hordes. It is our common

15 enemy." And as Mr. Krajisnik noted on that same date, "It will be

16 possible to solve this thing with Muslims and Croats, only by war." And

17 we've heard a great deal of evidence about how that war was waged and

18 against whom it was waged. I would note that there was no question in

19 the eyes of those who were -- of representatives of the international

20 community who were present in Bosnia-Herzegovina at the time about the

21 fact that the efforts to secure territory through ethnic cleansing and

22 through persecutory campaigns were waged against both Muslims and Croats

23 and I would point the Court, for example, to the testimony of Ambassador

24 Okun, who spoke, for example, about the impact of the -- and implications

25 of the Bosnian Serb insistence that Serbian ethnic territories inhabited

Page 17092












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

13 English transcripts.













Page 17093

1 by other nations would be subject to the determination of the plebiscite.

2 And I'll paraphrase what he said. He hypothesised at opstina with 10.000

3 inhabitants, 5.000 Bosnian Muslims, 3.000 Bosnian Serbs, 2.000 Bosnian

4 Croats, 10.000 in total, and discuss what would happen if a majority of

5 the Serbs in that municipality, let's say 2.000 of the inhabitants of

6 that municipality voted to be part of the joined territories of the

7 Bosnian Serb authorities, despite the fact that the 7.000 others, the

8 majority of people in the municipality, were against that. And he asked

9 rhetorically the question: What was going to happen to those 7.000

10 people? They weren't going to disappear by some magic trick.

11 He also discussed the provision in the Bosnian Serb constitution

12 that Serbian ethnic territory included the -- that territory on which

13 Serbs were a minority allegedly because of the genocide of World War II.

14 And again he asked the question: What was going to happen to the other

15 people? What about the Bosnian Muslims and Bosnian Croats? Again they

16 were linked. And when Ambassador Okun described his awareness, either by

17 being on the ground or by hearing it from other are international

18 observers who had personally seen it of ethnic cleansing when he

19 described bringing it directly to the attention of the Bosnian Serb

20 leadership, including Mr. Krajisnik; when he described the forcible

21 expulsion, the burning down of villages, the confinement in detention

22 camps and concentration camps, he referred to both Muslims and Croats.

23 And I would draw the court's attention to pages 4187 to 4189, 4252

24 through 4253 and other portions of his testimony surrounding that area.

25 I would also note that this was openly acknowledged and the same linkage,

Page 17094

1 the same focus on the common enemy and the treatment of the common enemy

2 could be seen in passages from subsequent sessions of the Bosnian Serb

3 assembly itself.

4 And I would note in that connection, as a couple of examples, the

5 17th session, where representative Milanovic stated openly that we have

6 a, "We have a huge problem with captured people of other nationalities.

7 We have hundreds and thousands of these prisoners." And then he went on

8 to mention who those national its were, Bosnian Muslims, Bosnian Croats

9 and others. At the 22nd session held in November of 1992, when there it

10 was a discussion about the draft law on citizenship, one of the

11 representatives complained about the possible implications of that draft

12 law, noting that it included a provision that citizenship could be

13 acquired by birth in the territory of Republika Srpska, "Which in fact

14 means that all Muslims and Croats who have been expelled have the

15 citizenship of Republika Srpska." Again, the linkage of the two groups,

16 the identical treatment of the same groups for the same reason.

17 And when we look closer at some of the municipalities - and I'm

18 not going to take the Court's time with all of them, just I'll focus on a

19 few - we can see that a more micro examination of the individual

20 municipalities bears out the comments at the Bosnian Serb Assembly and

21 the observations and conclusions of the representatives of the

22 international community. I would begin with, for example, the

23 adjudicated facts on Prijedor.

24 When it comes to the adjudicated facts concerning the demand for

25 surrender of weapons, the attacks on villages, the various restrictions

Page 17095

1 that were imposed, including the restrictions on freedom of movement, the

2 propaganda and the ethnic insults that were leveled against people and

3 that had a further role in terrorising them, the religious institutions

4 that is were targeted for destruction, the confinement in camps in which

5 many killings occurred and in which severe mistreatment was commonplace,

6 we see in all those adjudicated facts that that campaign is leveled

7 against both Muslims and Croats, again for the reasons stemming back to

8 the pronouncements made by Dr. Karadzic and Mr. Krajisnik at the 16th

9 assembly session.

10 If we want to look in particular at how Croat villages were

11 treated, we can -- we need look no further than the testimony of KRAJ 336

12 from Kresevo. It was a Croat village in the so-called Brdo region of the

13 Prijedor municipality which consisted of approximately 120 houses. Like

14 the rest of the Brdo region, it was attacked and cleansed in the latter

15 part of July 1992 in an attack which ran roughly, I think, from July 21st

16 to July 24th and I think the attack on Kresevo was on July 24th. That

17 small, relatively small village consisting of approximately 120 houses,

18 was attacked by Serbian forces, Bosnian Serb forces. 68 people were

19 murdered in that attack and the rest were rounded up and expelled from

20 the region after a period of confinement. That community of Kresevo

21 along with what ultimately turned out to be the remainder of the Bosnian

22 Croat community in Prijedor was essentially decimated. I should also

23 note that the partial destruction of the Bosnian Croat community in

24 Prijedor and elsewhere was not simply numerical, that is based on the

25 numbers of people killed, it was also selective and targeted. As the

Page 17096

1 Court is aware, that is one of the factors to be considered in

2 determining whether or not a genocide has occurred.

3 I would in that connection remind the Court of the comments of

4 the Minister of Health at the 16th assembly session on the 12th of May

5 1992, who said, "Have we chosen the option of war or the option of

6 negotiating? I say this with a reason and I must instantly add: Knowing

7 who our enemy is, how perfidious they are, how they cannot be trusted

8 until they are physically, militarily destroyed and crushed, which of

9 course implies eliminating and liquidating their key people, I do not

10 hesitate in selecting the first option, the option of war." And in that

11 connection, I would remind the Court of the testimony of Mr. Sejmenovic,

12 who was here briefly as a 92 bis cross-examination witness but whose

13 testimony from earlier cases was admitted. And he was asked on an

14 earlier occasion in respect of the leadership of the SDA in Prijedor,

15 what happened to the leaders of the SDA after the takeover by the SDS?

16 And Mr. Sejmenovic went on to discuss the attack on parts of Prijedor and

17 then said, afterwards, almost the entire leadership of the SDA, its

18 members were captured. They were either killed or they were classified

19 as missing for a while. A very small number of them managed to escape in

20 time or hide somewhere." He was then asked about the fate of the leaders

21 of the HDZ, the leaders of the Bosnian Croats, and he said, "I know that

22 a similar fate also befell leaders of the HDZ." That is the -- there was

23 selective targeting of the Bosnian Croat group in addition to the numbers

24 of Bosnian Croats who were killed in attacks, killed in camps, subjected

25 to forms of mistreatment and abuse on a wide scale that resulted in their

Page 17097

1 deaths.

2 Now, all of those are factors that have been identified in

3 various cases as reflecting circumstances from which the intent required

4 for genocide may be adduced. And those include the seriousness of the

5 discriminatory acts, the general political doctrine giving rise to those

6 acts that could be found as early as the Karadzic and Mladic Rule 61

7 decision in 1996; the destruction or attacks on cultural and religious

8 property that could be found in the Krstic case; the destruction or

9 attacks on houses belonging to members of the group, again the Krstic

10 case; the desired destruction of a more limited number of persons

11 selected for the impact that their disappearance would have on the

12 ability of the group to survive, that's found in the Jelisic trial

13 judgement and embraces one of the factors I just discussed.

14 Now, although I indicated I wouldn't -- I'd attempt not to focus

15 unduly on too many municipalities, I would probably be helpful if I

16 mentioned just a couple of others because the pattern against Bosnian

17 Croats in the same manner and for the same reasons that Bosnian Muslims

18 were attacked is reflected in many other municipalities and I'm just

19 going to mention a few.

20 I'll begin with Brcko and start with Witness KRAJ 213. He said

21 that the Bosnian Serbs wanted only a 5 per cent of the total population

22 of Brcko to remain. Only Bosniaks and Croats were referred to. That

23 would be enough people for them to sweep the streets and to work in night

24 shifts. He talked about mass graves. There were no signs to show that

25 people, that is those who were in mass graves, were killed by shells.

Page 17098

1 They were all killed in a bestial way only because they were Muslims or

2 Croats.

3 We could can turn also in Brcko to KRAJ 214. He discussed the

4 fact that it was -- that the SDS intention to reduce the population of

5 non-Serbs to below 10 per cent was -- and that that was known. And that

6 reduction of the population included Bosniaks and included Croats as

7 targets of this reduction. He also described some individuals who were

8 killed, including people who were killed because they were Croats and, in

9 particular, including one victim who was killed not just because he was

10 Croat but because he was a prominent Croat.

11 We could also turn to the municipality of Teslic, for example,

12 and the testimony of Mr. Petrovic. He discussed the fact that there were

13 those who were precluded from working in the MUP or in the police

14 department. Those were Muslims and Croats. He talked about people being

15 forced out of jobs; again, Muslims and Croats. The destruction of

16 property by the Red Berets; same thing, Croats and Muslims again. The

17 destruction of mosques, and the destruction of Catholic churches. KRAJ

18 484 from Teslic talked about Muslims and Croats detained, approximately

19 250 of them and how those Muslims and Croats were taken from the hangar,

20 they heard many screams and many of them were never seen again.

21 I could also turn quickly as just another example, to Sanski Most, and if

22 you look at the testimony of KRAJ 196 or KRAJ 565 you see restrictions,

23 persecutions, mistreatment, again not directed just as Muslims but

24 directed at both groups in the same manner. And I would also note the

25 testimony of KRAJ 628, who said, all the Muslim and Croat villages were

Page 17099

1 ethnically cleansed of the non-Serbs not only in Sanski Most but

2 throughout Krajina.

3 Again, Your Honour, although I don't think the Court needs to

4 reach that issue for the reasons I mentioned in the earlier portion of my

5 submission, I re-emphasise that the evidence amply demonstrates that even

6 if the kind of line-by-line reading or review of that portion of the

7 indictment on which Mr. Josse has focused is permitted, that the -- there

8 is ample evidence to support the allegation and the motion under Rule 98

9 bis regarding that limited portion of the indictment to which they have

10 directed their attention should be denied.

11 If I may have just a moment? That concludes my submissions,

12 thank you, Your Honour.

13 JUDGE ORIE: Mr. Josse before I give you an opportunity to make

14 any further submissions, as you would like, I noticed that there seems to

15 be quite a different view on Counts 1 and 2, your perception being that

16 the joint criminal enterprise or at least the crimes covered by it would

17 be 2(A) genocide against Bosnian Muslims, 2(B) being genocide against the

18 Bosnian Croats, whereas it seems that the perception of the Prosecution

19 is that genocide was committed against groups - the plural - that could

20 be identified by them being Muslims and of Croat and Muslim ethnicity but

21 taken together, which of course raises the issue about how a group should

22 be defined, what are subgroups, whether you could combine two groups

23 which seems to me not exactly the same but could be taken together in

24 contrast to another group still defined by nationality or religion or by

25 ethnicity. That seems to be apart from the issue of whether there is

Page 17100

1 evidence seems to be one of the basic disagreements between the parties,

2 Mr. Tieger?

3 MR. TIEGER: I'm not sure there is quite as much disagreement as

4 perhaps my comments inadvertently implied or as the Court is suggesting.

5 We certainly agree with the Defence to this extent, and that is that the

6 -- that Counts 1 and 2 allege genocide and they allege it -- and that

7 genocide, they -- those allegations assert, was established on the basis

8 of a genocide committed against Bosnian Muslims and on the basis of a

9 genocide committed against Bosnian Croats. The two groups are not lumped

10 together. And in that sense I would concede that the Defence is correct,

11 there is a genocide against Bosnian Muslims alleged, a genocide against

12 Bosnian Croats. The Defence concern is that the accused could be found

13 guilty if, for example, well, if their submission, if there is a -- if

14 the Court finds a genocide against Bosnian Muslims but not a genocide

15 against Bosnian Croats, that's true, but we assert that the remedy for

16 that existed long ago.

17 JUDGE ORIE: Then that raises a totally different question, Mr.

18 Tieger. How possibly could the Defence have raised the issue that there

19 was not sufficient evidence presented for that part of the genocide

20 charges, whether you call that Count 1 genocide against Croats and

21 genocide also in a cumulative nature, or whether you say Count A(1) is a

22 genocide against Bosnian Muslims, Count 1(B)? I mean, of course it

23 becomes a bit of a play of what's 1(A) and what's 1(B) and what's 1 and

24 2. At what stage, because you're referring to the pre-trial stage -- how

25 could they have possibly raised the issue that not sufficient evidence

Page 17101

1 has been presented by the Prosecution to prove genocide against Bosnian

2 Croats?

3 MR. TIEGER: Your Honour, of course that's correct, it's a

4 logical impossibility that they could have presented such an argument

5 before any evidence was produced in court.

6 JUDGE ORIE: You're nevertheless suggesting that they had other

7 remedies.

8 MR. TIEGER: My point is that in a jury system, for example, the

9 concern might be that the jury would somehow confuse or conflate the two

10 groups and use evidence against one to bolster evidence against another

11 and would therefore seek under a provision similar to our Rule 72, to

12 have the amendment modified to make these separate counts. That it would

13 be the allegation. Now, in a system -- in a judge-based system, the

14 court will make appropriate findings that preclude that risk. That may

15 well be why no such challenge was raised under Rule 72 earlier but that

16 was the sense in which I meant it could have been addressed.

17 JUDGE ORIE: At least it becomes clearer and clearer to me.

18 Mr. Josse?

19 MR. JOSSE: Your Honour, I had a chance to discuss this at some

20 length over the last days with Mr. Tieger and he and I are in broad

21 agreement about this. Could I illustrate the point even more starkly if

22 I may? It's my submission that in Counts 1 and 2, there really are two

23 different offences. Let's just call it Count 1 genocide because it's

24 similar. But clearly, there would be a pair of counts representing the

25 alternative, complicity in genocide, and the two offences are one,

Page 17102

1 genocide against Bosnian Muslims and the others is genocide against

2 Bosnian Croats. And perhaps I didn't make it clear enough earlier but I

3 contrasted that quite deliberately with the other counts on the

4 indictment where I make no complaint about, if I can adopt Your Honours'

5 expression or perhaps my learned friend's expression, them being lumped

6 together. We don't complain about that partly because of the reading of

7 the Article, because again, using an English expression, it's a material

8 averment that the Prosecution should have to prove that the genocide is

9 committed against a national ethnical, racial or religion group and

10 ironically, Your Honour, the only element in relation to genocide or

11 alleged genocide against Bosnian Croats that the Defence concede is

12 proved is that they are a national group. I went through the five

13 elements earlier and that's the one element that I accept is proved. It

14 would be ludicrous if I was to assert that Bosnian Croats weren't a group

15 under the Article.

16 Now --

17 JUDGE ORIE: I think it was more a misunderstanding of the

18 Prosecution's position than a misunderstanding of your position, as a

19 matter of fact, that caused me to ask that question to Mr. Tieger.

20 MR. JOSSE: At one point, and this in fact now leads conveniently

21 on to what I want to say by way of response, at one point it occurred to

22 me that I could be in the ludicrous and unfortunate position of asking

23 for these counts to be split because certainly in common-law

24 jurisdictions that I know about, the remedy would be in fact to create

25 further counts, because there, the jury will simply return a verdict of

Page 17103

1 guilty or not guilty. And if the verdict is guilty, the judge who is

2 then going to sentence the accused would need to know the basis of that

3 finding. That isn't a problem here, I readily accept, because if this

4 Chamber finds my client does have a case to answer in relation to both

5 Bosnian Muslims and Bosnian Croats, then in due course, I know we will

6 get reasons as to whether he is found guilty of one, both, not guilty of

7 one, not guilty of both so it actually doesn't matter so far as that is

8 concerned but. It of course does make a very real practical difference

9 as to where the case goes from now.

10 And in specific response to what Mr. Tieger has just said, I

11 contend that the Prosecution's primary assertion is that it's too late

12 because the point wasn't taken under Rule 72. That simply cannot be

13 right both in fairness and indeed in practicality, the practicality being

14 the Defence case which will now follow.

15 And there is no difficulty, I submit, with the Trial Chamber

16 dealing with the submission, in other words not lumping the two together

17 at this stage. There is no difficulty with it. And if nothing else,

18 what perhaps we can all agree upon is that the new Rule 98 bis is

19 designed to achieve a practical and real result rather than an artificial

20 result which it so often used to do perhaps in the past.

21 But, Your Honour, if the Defence are wrong about that, if I'm

22 wrong about what I have just said, that emphasises more clearly than

23 anything else why the rights of my client have been prejudiced by the

24 change of the Rules. So I submit, if I can put it this way, that I win

25 both ways on that point, either under the old rule or the new rule and

Page 17104

1 why, if I'm wrong that the new Rule doesn't cater for it the old Rule

2 must come into play and we need to go backwards, unfortunately.

3 So far as the substance of Mr. Tieger's assertions, so far as the

4 evidence is concerned, I was at pains to point out, and if I didn't do so

5 before I certainly do now, that there is evidence and perhaps quite a lot

6 of it, that relates to the maltreatment, discrimination of Bosnian

7 Croats, evidence perhaps of war crimes including very unpleasant murders,

8 but I submit that on any reading of the evidence as a whole, applying the

9 correct test, the evidence does not amount to genocide, bearing in mind

10 the elements that require proving. By way of example, Mr. Tieger doing

11 the best he can, cites a passage from another trial that's been admitted

12 in this case from Mr. Sejmenovic, and as one line that he relies upon,

13 which relates to a particular type of discrimination, I think choice of

14 leaders of Bosnian Croats being selected for discrimination and perhaps

15 murder. But really, in a scale of a case like this, to rely on that one

16 piece of evidence illustrates the Defence's point that genocide is simply

17 not made out.

18 I contend in conclusion that the Trial Chamber needs to grapple

19 with these matters and ask itself whether it really wants to widen still

20 further the ambit of the offence of genocide and ask itself look at the

21 elements that need to be proved and ask itself whether in fact they are

22 proved to the sufficient standard at this stage in relation to Bosnian

23 Croats and the Defence contend resoundingly that the answer to that is

24 no.

25 JUDGE ORIE: Thank you, Mr. Josse.

Page 17105

1 [Trial chamber confers]

2 JUDGE ORIE: Mr. Josse, I have one question for you and that's

3 the following. Apart from a couple of lines of the evidence, I think

4 what Mr. Tieger also tried to do hard is to draw the attention of the

5 Chamber to those portions of the evidence in which -- which would suggest

6 that the treatment of the one group would not be distinguishable from the

7 other group, so therefore he did not only or not primarily pay attention

8 to the ill-treatment because that's what the Chamber understood well, you

9 could say well, ill-treating people, even if you murder people that

10 doesn't mean that you are fulfilling all the elements of genocide. But I

11 think what Mr. Tieger tried hard - whether he has succeeded or not he'll

12 find out at a later stage - but he tried hard to draw attention to the

13 fact that on the political level the groups were treated equally. And if

14 I do understand him well, is that he suggests with that that by treating

15 them equally would mean that what happens on the grounds with one group

16 which numerically certainly is far larger than the other group, would

17 nevertheless allow for some inferences to make in respect of the smaller

18 group.

19 First of all, Mr. Tieger, if I misunderstood your arguments,

20 please tell us now so that Mr. Josse doesn't have to respond to any

21 misunderstood arguments. But if I understood your argument well then I

22 would invite Mr. Josse to answer your question.

23 MR. TIEGER: I would have done so, Your Honour. Thanks for the

24 opportunity and the Court's understanding is essentially correct, thank

25 you.

Page 17106

1 JUDGE ORIE: Mr. Josse, then you're invited to respond to that

2 element as well.

3 MR. JOSSE: Your Honour has heard the evidence in this case over

4 very many months and again, if I could be excused stating the obvious and

5 I'm not seeking here to make a jury speech, the qualitative and

6 quantitative evidence in relation to Bosnian Muslims and Bosnian Croats

7 is so enormously different that I don't need to emphasise it beyond what

8 I have already said, and Mr. Tieger carefully, meticulously and I accept

9 fairly has chosen parts of the evidence which suggest discrimination and

10 in some cases equal discrimination against Bosnian Croats. But overall,

11 as I've already said, the quality and quantity of the evidence varies

12 enormously, and it isn't just a case of intention, although I submit that

13 so far as intention is concerned, the Prosecution haven't made out its

14 case, it's also a matter of the actuality of the situation. I went

15 through some of the matters that I submit the Court needs to consider so

16 far as the words "in part" are concerned, so far as the words "to

17 destroy" are concerned and they simply aren't made out notwithstanding

18 what Mr. Tieger has said, and even under a -- the test as adopted in the

19 Rule 98 bis Milosevic decision, which both parties have agreed is the

20 right test, even under that test, one can't just pluck a few facts out of

21 the air and say well, based on those there is a sufficiency of evidence

22 in relation to what amounts to, to state the obvious, an extremely

23 serious charge. That's how I put it in response.

24 JUDGE ORIE: Thank you, Mr. Josse. Finally, perhaps it's

25 unnecessary to establish, Mr. Tieger, but Mr. Josse this morning started

Page 17107

1 with a kind of a general statement that an acquittal on all counts, on

2 all charges, would be appropriate at this moment and he told us that he

3 discussed the matter with Mr. Krajisnik. I take it of course where the

4 Prosecution responded mainly on the basis of the specific issues that the

5 general line is that you would reject such a suggestion at all because

6 you didn't address the matter.

7 MR. TIEGER: Thank you, Your Honour, the Court is quite right.

8 MR. JOSSE: What Mr. Tieger also hasn't addressed - and I make no

9 complaint about it, I just observe it was -- and it may be because it was

10 something I didn't discuss with him as fully as I might otherwise have

11 done - which was my very last point, which was that looking at the way

12 Judge Agius put it in the Oric discussion, he was suggesting that

13 regardless of what the parties were saying, a full, reasoned decision is

14 required on sufficiency of evidence at this stage, and I note Mr. Tieger

15 hasn't addressed that particular issue.

16 JUDGE ORIE: Mr. Tieger?

17 MR. TIEGER: Well, let me note preliminarily that that was -- I

18 haven't focussed in particular on that submission because I don't think

19 it was the subject of discussions before. I will say I don't see

20 anything in Rule 98 bis that requires the Court to proprio motu do the

21 same thing that used to be done by the parties with respect to 98 bis.

22 I'm sure that's not the intention of 98 bis. It is an oral decision

23 after hearing the submissions. I take on board Judge Agius's comments

24 that Rule 98 bis is no longer specifically party-driven as opposed to

25 perhaps imposing a different kind of burden on the Court. I recall some

Page 17108

1 comment by Judge Liu in an earlier case that if submissions were not made

2 by the parties then the Court had no further responsibility. That may or

3 may not be the case under 98 bis now but I don't think that rises to the

4 level of some highly detailed analysis of all the evidence in the case,

5 if that's what was being suggested. I think if it's clear to the Court

6 that one of the counts cannot stand under the standards articulated

7 earlier, that's another story and a reasoned decision must follow. And

8 -- but it strikes me that the suggestion, if I heard that properly, that

9 the Court is obliged to engage in roughly the same kind of an exhaustive

10 review of the evidence that once produced essentially two trials in these

11 cases is misplaced.

12 JUDGE ORIE: Yes. Well, Mr. Josse, I take it that there is some

13 relation between the details in which the Chamber should enter under the

14 old or the new Rule - whether it's just counts or also part of a count, 1

15 A and B, genocide against one group, genocide against another group,

16 whether it's 18 victims or 12 victims just referring to one of my earlier

17 examples - I take it that the parties would understand that going through

18 all the -- I would say the little details as in practice was done before

19 is not something that becomes the apparent duty of the Chamber under the

20 new Rule, which is of course something totally different from whether a

21 reasoned decision has to be given. And if I do understand you well, if,

22 for example, you might have missed an important matter on Count 7 there

23 would have been no evidence whatever being presented, that you would

24 expect the Chamber to give a reasoned decision why an acquittal on Count

25 7 then had to be given. That's -- you expect us not to just give a yes

Page 17109

1 or no but to give some other reasons in whatever detail that would be.

2 MR. JOSSE: My submission is really a hybrid one inasmuch as I

3 recognise that under the new Rule, once the Chamber certainly does not

4 need to go through schedule line by line. Indeed probably doesn't need

5 to go through the schedule at all. But what I understood Judge Agius to

6 be saying was what the Chamber does have to do is go through the

7 indictment count by count and be satisfied in its own mind that the

8 Prosecution have made out a case, a case for the accused to answer, on

9 each count and then give reasons as to why there is a case in relation to

10 each count dealing with the generality of the count rather than the

11 specificity of it. That's what I understood Judge Agius to be saying.

12 JUDGE ORIE: Okay. That's clear.

13 If the parties have made all their submissions, since we have no

14 further questions -- yes, Mr. Tieger?

15 MR. TIEGER: Sorry, Your Honour, just before the Court was to

16 adjourn, I wanted to either raise or foreshadow an unrelated issue, if I

17 may.

18 JUDGE ORIE: Yes. But before I give you an opportunity to do so,

19 I want to ask one question. I do understand that at least for two

20 municipalities the Prosecution accepts that there is no evidence, is that

21 correct? It was the municipalities of -- let me just find them --

22 MR. TIEGER: It was Rudo and Sipovo, Your Honour.

23 JUDGE ORIE: Yes, so that's clear at least.

24 MR. TIEGER: I might mention as a minor matter, it's not the

25 Prosecution accept that is that's not necessarily an appropriate issue

Page 17110

1 under Rule 98 bis but we wanted to make sure there was no

2 misunderstanding about that because it sealed like an appropriate

3 opportunity.

4 JUDGE ORIE: The parties do agree that no sufficient evidence

5 under the Rule 98 bis test has been presented for these two

6 municipalities, although whether this is something to strike out at this

7 moment already is another matter.

8 MR. TIEGER: Yeah. Right, for the reasons I expressed. I would

9 say it slightly differently.

10 JUDGE ORIE: Whether an acquittal should follow on this basis or

11 whether we should just keep that in the back of our minds for the future

12 of this case.

13 MR. TIEGER: Right.

14 JUDGE ORIE: Yes. You wanted to raise an unrelated issue.

15 MR. TIEGER: It's simply this, Your Honour. The Prosecution

16 would at the earliest possible stage like to know when, under Rule 65

17 bis(G), it can expect to receive a list of witnesses that the Defence

18 intends to call so it can begin to prepare appropriately for the

19 remainder of the case. I'm sorry, it's apparently 65 ter (G). I must

20 have an old version. But I think the Court knows the provision to which

21 I'm referring.

22 JUDGE ORIE: Yes. I think the -- Mr. Josse, I take it that Mr.

23 Stewart will take care of that.

24 MR. JOSSE: Well, that's putting it, if I might say, succinctly

25 accurately and helpfully from my point of view. It's a fundamental --

Page 17111

1 it's a fundamental matter so far as the Defence are concerned. Your

2 Honour, speaking for myself and the rest of the Defence team, we are

3 painfully aware of our obligations and what we need to do in regards to

4 both the Rules and time in general.

5 JUDGE ORIE: Yes. The Chamber remembers well that just before

6 the summer recess that we got a stormy weather forecast, although no

7 direct warnings for the storm to arrive but it was indicated that

8 something would come to the Chamber, but until now we have not received

9 anything. So we would like to hear as soon as possible, at least the

10 Prosecution would like to hear as soon as possible. If there are any

11 problems, of course then it would be for the Chamber to hear about them.

12 MR. JOSSE: At the avoidance of any doubt, Your Honour, I can

13 confidently say that regrettably, the matter will have to come back to

14 the Chamber sooner rather than later. I realise the ball is in the

15 Defence court. We are aware of that.

16 JUDGE ORIE: Yes. Then we will adjourn and we will inform the

17 parties as soon as possible when the oral decision will be delivered. It

18 could be this week. There is even a fair chance that would be one of the

19 following days. So the parties should be prepared to appear in court and

20 to hear this decision to be delivered.

21 If there is nothing else on the agenda at this moment, we will

22 adjourn, as they say in good Latin, I think, sine die, that means without

23 giving a date for our next hearing. We stand adjourned.

24 --- Whereupon the hearing adjourned at 1.36 p.m.