1 Tuesday, 11 December 2001
2 [Status Conference]
3 [Open session]
4 [The appellant entered court]
5 --- Upon commencing at 4.31 p.m.
6 JUDGE HUNT: Call the case, please.
7 THE REGISTRAR: Good afternoon, Your Honour. Case number
8 IT-98-33-A, the Prosecutor versus Radislav Krstic.
9 JUDGE HUNT: Appearances for the Prosecution, Mr. Farrell.
10 MR. FARRELL: Thank you, Your Honour. Norman Farrell for the
11 Prosecution, and with me is Mr. Wolfgang Sakulin.
12 JUDGE HUNT: Thank you.
13 For the appellant?
14 MR. PETRUSIC: [Interpretation] Good afternoon, Your Honour. Good
15 afternoon, my learned friend. I'm Nenad Petrusic, from the Defence of
16 General Krstic, and during the appeal proceeding I will have Mr. Visnjic
17 appearing with me and Mr. Norman Sepenuk, who has joined us in the appeal
18 proceedings. Thank you.
19 JUDGE HUNT: Thank you.
20 General Krstic, are you able to hear the proceedings in a language
21 which you understand? You have to turn your microphone on.
22 MR. VISNJIC: [Interpretation] Your Honour, we cannot hear the
23 translation into B/C/S. We cannot hear the interpretation.
24 JUDGE HUNT: Number 6, channel number 6. Are you getting a
25 translation now?
1 MR. VISNJIC: [Interpretation] It's all right now.
2 JUDGE HUNT: Are you able to hear the proceedings in a language
3 which you understand, General?
4 THE APPELLANT: [Interpretation] Yes.
5 JUDGE HUNT: Thank you very much.
6 This is the first Status Conference in the appeal, being held
7 pursuant to Rule 65 bis.
8 If I may turn immediately to the issue of the condition of the
9 appellant. Is there anything which counsel on his behalf wish to raise
10 about the conditions of his detention or any other matter relating to his
11 mental or physical condition? Mr. Petrusic?
12 MR. PETRUSIC: [Interpretation] Your Honour, as for the state of
13 Mr. Krstic and his treatment at the Detention Unit, nothing has changed
14 substantially. Problems are evident. They are there all the time. A few
15 days ago an orthopaedic specialist examined Mr. Krstic, his leg, and he
16 came to the conclusion that in detention conditions there are no technical
17 possibilities for carrying out so-called hydrotherapy, which is
18 indispensable. There is a certain process in the leg that creates
19 problems and is painful to Mr. Krstic. Now, how will this problem be
20 resolved? The Defence will try to look into this matter through the
21 appropriate medical services of the Registry.
22 JUDGE HUNT: You understand, though, don't you, that this is a
23 matter which you have to raise first with the commanding officer of the
24 Detention Unit. Then, if you don't receive satisfaction from him, you
25 have an avenue of appeal to the President of the Tribunal. It's not
1 something within the powers of the Appeals Chamber to deal with.
2 MR. PETRUSIC: [Interpretation] Yes, absolutely, Your Honour. I
3 fully concur. But I have just answered your question related to the
4 current condition of General Krstic.
5 JUDGE HUNT: Yes. I understand. That's what the Rule provides
6 for us to ask. But then having asked it, usually there's very little that
7 we are able to do in relation to any complaints except to draw your
8 attention to the fact that it's a matter for the commanding officer
9 initially, and then after that, the President.
10 Right. Now, in relation to the preparation for the appeal, the
11 first thing to be dealt with is your motion for an extension of time.
12 Have you read the decision on that point in Kordic and Cerkez?
13 MR. PETRUSIC: [Interpretation] Your Honour, by your leave, as for
14 this question and these submissions that are before you, Mr. Visnjic and
15 Mr. Sepenuk have been dealing with these matters to a greater extent. I
16 have been dealing with other matters related to the appeal. So by your
17 leave, I would like to give the floor to Mr. Visnjic in this regard.
18 JUDGE HUNT: Thank you very much. Yes, Mr. Visnjic.
19 MR. VISNJIC: [Interpretation] Your Honour, I think that we have
20 looked at most of the decisions passed by the Appeals Chamber, and I don't
21 know which decision you specifically have in mind as related to Kordic
22 Cerkez, that is.
23 JUDGE HUNT: This is one called "Decision on Second Motions to
24 Extend Time for Filing Appellants' Briefs." It's dated the 2nd of July,
25 2001, in which it makes it clear that new evidence matters will not be
1 sufficient basis for delaying an appellant's brief.
2 And there's been a subsequent decision, I think only a day or so
3 ago, in Blaskic, whereas Mr. Blaskic was entitled, was permitted to delay
4 matters rather an extraordinarily long time. He's now being required to
5 get on with it.
6 You see, I think that as a previous advocate, I understand the
7 desire of anybody to have the perfect appellant's brief, but we don't live
8 under perfect conditions here. And the stand has been taken that you are
9 required to file your appellant's brief so that we know what he's all
10 about, and then you will be permitted to add to it when the matters about
11 new evidence have crystallised.
12 The only other matter is the addition to your team. Actually, I
13 had not realised that your American colleague was going to appear as
14 counsel in the matter. He's regarded by the Registrar, I understand, as a
15 consultant, but I'm not sure how you can use that to your advantage.
16 MR. VISNJIC: [Interpretation] Your Honour, that is correct. The
17 Registry has registered him as a consultant. Perhaps we have not defined
18 this precisely enough at the outset, but our colleague is a consultant,
19 and we availed ourselves of this opportunity since we had a meeting here,
20 all of us together. We wanted to appear in court, all of us, so that the
21 Court would be in a position to get all necessary information or all
22 required information.
23 JUDGE HUNT: Well, yes, but I don't think you've answered my
24 question. You see, you rely upon the new evidence and the addition to
25 your team of a consultant to extend the time for filing your appellant's
1 brief. Now, in both Kordic and Blaskic, that approach has failed in
2 relation to new evidence, and I am not sure why there should be any
3 difference because you now have a new member of the team.
4 MR. VISNJIC: [Interpretation] Your Honour, one of the reasons or,
5 rather, one of the factors that we have relied upon is the fact that the
6 case is so voluminous and there is such a great amount of material to be
7 dealt with in the appeal. So this just supports our case. Rather, the
8 two reasons you refer to are two additional reasons that we have been
9 referring to, namely, that our new consultant has to look into all of
10 this, and we wanted to link all of this up with the new evidence as well.
11 However, at any rate, I believe that the abundance of material in
12 this case -- and also the Registry can provide information as to when the
13 Defence really started working on the appeal, bearing in mind when we
14 actually got the decision. So bearing in mind this entire framework, we
15 have put all of this into a single motion for extension.
16 JUDGE HUNT: You understand, don't you, you've already received
17 one extension in which the voluminous nature of the material you're
18 dealing with was taken into account. So what you're asking us is to
19 reconsider the decision that was made before.
20 MR. VISNJIC: [Interpretation] Your Honour, we would like to
21 indicate certain circumstances that had not been looked into until now.
22 For example, the circumstance that the Defence -- actually, I can say this
23 now within this request, that Mr. Petrusic and I have been working on this
24 case incessantly since December 1999, that is to say, when the trial was
25 announced. So it was two years altogether, really, until July 2001. Then
1 we got the decision very quickly after that. That was the 2nd of August.
2 And we simply were not in a position, we were not physically capable and
3 professionally capable of starting to work on the case immediately. We
4 started working sometime in September, and that can be checked with the
5 Registry because we have been making submissions to them related to this.
6 Another thing that I wish to draw your attention to is that with
7 regard to certain elements related to the appeal, we noted them only
8 subsequently, after consulting General Krstic, and this was upon receipt
9 of the decision, the decision in the Serbo-Croat language, that is.
10 Bearing in mind the contribution of Mr. Sepenuk as his view in
11 terms of the additional time needed for the appeal, we have brought all of
12 this together into this one motion. It does require perhaps a few months,
13 but basically I'm talking about the beginning of September until the
14 present day. Of course, all of this includes the appeal filed by the
15 Prosecutor or, rather, the time that is needed for his response or,
16 rather, responding to him, and of course due to that, we face additional
17 difficulties and we can observe that now. For example, some texts in the
18 Swedish language, et cetera. However, I think this is of secondary
19 importance with regard to our motion.
20 The core of the matter is insufficient time. This is the first
21 ever judgement that relates to genocide, and the literature that we have
22 available is primarily in the English language, and actually, within all
23 the circumstances that Mr. Petrusic and I have been working, we really
24 felt it was necessary to seek the assistance of Mr. Sepenuk as well.
25 JUDGE HUNT: But you see, the Registrar has given permission for
1 him to join the team in order to assist you on this issue of genocide, not
2 generally in relation to the appeal. That's why I expressed some surprise
3 to see him now here as a member of the team in court. And it was very
4 limited on that basis. I don't understand why his addition to the team
5 should give you further time to enable him to do work for which he's not
6 been retained.
7 And as for your suggestion this is the first decision on genocide,
8 it's clearly not the first decision on genocide. The Rwanda Tribunal has
9 brought in several decision on genocide. It is the first one for this
10 Tribunal, certainly, but there are other decisions of a recent nature
11 dealing with genocide.
12 MR. VISNJIC: [Interpretation] That is correct, Your Honour. I was
13 not precise enough. I meant the first decision on genocide in this
14 Tribunal and the first judgement on genocide in the territory of the
15 former Yugoslavia. That's what I meant.
16 JUDGE HUNT: Yes. Well, I understand all that. Is there anything
17 you want to add to this issue about extensions of time?
18 MR. VISNJIC: [Interpretation] Your Honour, I would kindly like to
19 ask you to hear the reasons that would be put forth by Mr. Sepenuk, and
20 this has to deal with the part of the proceedings that he would be
21 involved in. I think it will be very brief, and we won't take up too much
22 of your time.
23 JUDGE HUNT: Well, if I do so, I want to make it very clear I am
24 prepared to listen to him speak to us, to the Tribunal, as a consultant.
25 That's the basis upon which he's here. I'm happy to hear him on that
1 basis. But I don't want there to be some reliance placed subsequently
2 upon my having done so in order to change his status.
3 MR. VISNJIC: [Interpretation] Yes, Your Honour. I think this is
4 quite clear to us, and thank you.
5 JUDGE HUNT: All right. Well, Mr. Sepenuk, what do you want to
7 MR. SEPENUK: Thank you very much, Your Honour.
8 THE INTERPRETER: Microphone, please.
9 MR. SEPENUK: Thank you, Your Honour. My understanding, Your
10 Honour, of my consultant's role in the case I think is a little bit
11 broader than what Your Honour has stated. I've been retained to analyse
12 the entire record in the case to identify any issue that could be raised
13 on appeal. We know that the genocide issue is going to be raised, so
14 that's been focused on, and that no doubt will be a very main issue on
15 this appeal. But before I can identify any other issues on the appeal,
16 and before we can intelligently focus in on genocide, it's absolutely
17 basic, as I'm sure Your Honour well appreciates, that I read the over
18 10.000 pages of the trial record. There's also literally thousands of
19 pages contained in the various exhibits in the case.
20 May I offer just one other issue, Your Honour, that I think will
21 be raised on the appeal. That's the very difficult issue that Your Honour
22 has already dealt with in the Talic case, interpreting the Tadic decision
23 on joint criminal enterprise, and that is to say where an alleged crime is
24 committed outside the scope of the alleged criminal enterprise. For
25 example, if there is a forcible deportation, as the government has proved
1 in this case - at least, General Krstic is now convicted of that -
2 followed by so-called opportunistic killings, the Trial Chamber in this
3 case found General Krstic liable for those killings on the basis that
4 under the Talic and Tadic rationales, the General should have foreseen
5 that that was a consequence of the forced bussing. We respectfully
6 submit, Your Honour - at least, we're going to submit, I'm sure - that
7 that's too broad a concept, that it's too much of a jump from one to the
8 other. It's a very, very difficult issue.
9 JUDGE HUNT: I'm sorry. Do you mean as a matter of law or
10 factually in this particular case?
11 MR. SEPENUK: Certainly factually, Your Honour, and I --
12 JUDGE HUNT: Because we are bound by the decision in Tadic --
13 MR. SEPENUK: Yes, Your Honour.
14 JUDGE HUNT: -- Tadic, and in Talic all we sought to do was to
15 explain it. So in Tadic, that's what they use as the test. The common
16 law test, as I understand it, is whether the crime, which is outside the
17 object of the joint criminal enterprise, was one which was reasonably
18 contemplated by the parties. Now, I'm not sure that I see any difference
19 between that and the one which the Appeals Chamber accepted in Tadic, but
20 whatever it is, we're bound by that decision.
21 MR. SEPENUK: I understand that, Your Honour, so I say, first,
22 factually there's no doubt we're going to try to distinguish it, but I
23 also say that at the very least, we may suggest to the Appeals Chamber in
24 this case that perhaps this is too broad a concept and perhaps the Appeals
25 Chamber might want to take another look at it, based on authorities that
1 we would present.
2 JUDGE HUNT: But then, you see, you run into a problem that the
3 decision of the Appeals Chamber in Aleksovski and in Celebici confirmed
4 that the Appeals Chamber is bound by its previous decisions, except in
5 very limited circumstances.
6 MR. SEPENUK: Well --
7 JUDGE HUNT: So I suggest to you, you should not spend a lot of
8 your time at this stage arguing or seeking to put an argument that Tadic
9 was wrong, because the Appeals Chamber has said it will be bound by its
10 previous decisions.
11 MR. SEPENUK: Thank you, Your Honour, and I do appreciate that.
12 But as I say, at the very least, we'll be making certain factual
14 JUDGE HUNT: That's a different matter.
15 MR. SEPENUK: But to make the factual arguments I have to read, as
16 I say, this 10.000-page record, literally thousands of pages of exhibits,
17 and Your Honour, this is a very formidable opinion.
18 JUDGE HUNT: This is not something which is new. This has always
19 been the issue in the appeal, whether the factual findings are correct, so
20 that your two colleagues have had plenty of opportunity of considering
21 that. And having three counsel, it is not generally regarded as being
22 efficient for each of them to read the whole of the record. You divide
23 the work up between you. So you have a problem in trying to persuade the
24 Appeals Chamber here that you should get extra time because you have come
25 into it late. You're here as the consultant. I accept that there may be
1 some imprecision in the use of the word "consultant," but it is to advise
2 on genocide, from the common law point of view, and certainly perhaps
3 other matters from a common law point of view. But the slogging hard work
4 of reading through the whole record has been done by your two colleagues.
5 They were in the trial, and they should be able to direct you, or you can
6 ask them to direct you to particular parts of it.
7 MR. SEPENUK: And I certainly have been directed to particular
8 parts, Your Honour, but I did think it essential, and I do think it
9 essential, very respectfully to Your Honour, to get my own assessment of
10 what the case is all about, even on the genocide issue, where the question
11 of intent is going to be paramount. And as we pointed out in our
12 memorandum, the literature on the subject is absolutely vast, and the
13 issue, I think, is a paramount one. I do think -- I hope this is not -- I
14 don't mean it as hyperbole, but I do think that this will be perhaps as
15 significant a decision on genocide as there ever has been. And I take it
16 very seriously. I find it a very awesome task. And we'd like to submit a
17 work product that's equal to the dignity of the work product produced by
18 the Trial Chamber, and unless we have time to do that, Your Honour, we're
19 not going to be able to produce that kind of a work product.
20 JUDGE HUNT: It was a phrase that I used in the Kordic case, that
21 everybody likes to have the absolutely perfect appellant's brief, but we
22 cannot afford this sort of thing. Your client is sitting in detention, in
23 conditions of difficulty because of the state of his leg, and you are
24 asking him, in effect, to sit there for longer to enable you to polish
25 something which perhaps could have been expressed in a more fluent way. I
1 don't really think that that's the way we can operate. We operate on the
2 basis we get proper assistance from counsel, and they have the opportunity
3 of addressing us orally at the hearing, they have the opportunity of
4 adding to their written briefs, especially after new evidence points have
5 been involved, and we just have to get on. At the moment, neither the
6 Prosecution nor the Appeals Chamber has any idea of the matters that are
7 going to be litigated. And this has been demonstrated to be a wholly
8 improper approach in Blaskic, where the matter has just languished for
9 years because the appellant was never forced to put on his appellant's
11 Now, that's where we stand at the moment. We are absolutely
12 ignorant of what's going to happen, and we've got to know. But anyway, I
13 understand what you put, and it will be, as you say, a very interesting
14 and perhaps a very important judgement, and we want all the assistance we
15 can get, but we really must insist on having it as soon as possible.
16 MR. SEPENUK: Thank you, Your Honour.
17 JUDGE HUNT: The other matter from the point of view of the
18 appellant: You want to delay your response to the Prosecution's appeal,
19 your respondent's brief to the Prosecution's appeal, because you say it
20 will raise the same issues as you are going to raise in your appeal. I'm
21 not sure that I understand that. The Prosecution, in its appeal, has
22 raised a number of issues, saying that the Trial Chamber proceeded upon
23 the impermissible basis that there should be some sort of a categorisation
24 of sentences starting with certain particular people at the very top and
25 everybody else has to be lower, rather than just looking at the worst
1 category of case, which is what, I must confess, I've always understood to
2 be the law, but we have yet to work that one out, and they have stressed
3 all the matters of aggravation that the Trial Chamber is asserted not to
4 have given proper consideration to.
5 Now, your response to that brief will be to point out that there
6 are also a great deal of matters of mitigation which you also are going to
7 say in your appeal were not properly taken into account. I do not
8 understand why you can't do it now. It doesn't depend in any way upon new
9 evidence. It's just a matter you have to put on a response to the
10 Prosecution's appeal, and when you come on to your own appeal, you can
11 refer back to your submissions there and include them by reference in your
12 own appellant's brief.
13 [Defence counsel confer]
14 MR. SEPENUK: Your Honour, I do appreciate the force of your
15 comments. It was suggested merely as a way of streamlining the case:
16 instead of two briefs, one brief. We are going to argue -- I know enough
17 about the case at this point, Your Honour, to know that we're going to ask
18 the Court to reverse, the Tribunal to reverse the genocide judgement. If
19 the Court -- if the Tribunal does not do that, we're then going to ask for
20 a reduction of the 46-year sentence largely on the basis of our analysis
21 of the genocide case, and other factors in the case, and in doing that,
22 we'll necessarily deal with the Prosecutor's arguments on genocidal
23 factors that go into a sentence. We just thought it would be a cleaner,
24 more streamlined way of doing it. It's not the end of the world, Your
25 Honour if you ask us to submit a brief now. We would prefer to do it at a
1 later time. Hopefully, Your Honour, at a much later time.
2 JUDGE HUNT: That's a very appealing way of putting it,
3 Mr. Sepenuk, but I'd glad to say that you realise the inevitability of
4 having to put on a respondent's brief, because I'm afraid that's what
5 you'll be ordered to do. As to the period, we have yet to deal with that.
6 Is there anything else that you want to add on that particular
8 MR. SEPENUK: No, Your Honour.
9 JUDGE HUNT: Well, now, Mr. Farrell, do you want to respond to any
10 of that?
11 MR. FARRELL: No. Most of the issues you've addressed, and our
12 response has been filed yesterday. Thank you.
13 JUDGE HUNT: Right. Well, now, the other matter was this
14 application for access. You have asked for a hearing, an oral hearing,
15 before me. I should emphasise, this is not a decision which I will be
16 making as the Pre-Appeal Judge. It's a matter for the whole Appeals
17 Chamber, access to documents. If you are in some way of the opinion that
18 it's going to assist you, I would like to have something in writing to
19 demonstrate why the arguments can't be put in writing. They are usually
20 put in writing with no oral argument. And it's an issue where you've now
21 got an enormously detailed response from the Prosecution, which I received
22 this morning and which I haven't finished reading, and I see that as I
23 walked into court I was handed a document which apparently is your reply
24 to it. I'm not sure that it was wise of you to have rushed into a reply
25 so brief to such a detailed response. But my point is, I can't hear the
1 argument. It would have to be by the whole Appeals Chamber. And in order
2 for you to get an order for oral hearing, you've got to demonstrate why it
3 is a matter that can't be dealt with in writing, for example, by a more
4 detailed reply.
5 I have to say I haven't read this reply because I haven't read the
6 response, but I've just noticed it's very short.
7 MR. VISNJIC: [Interpretation] Your Honour, we gave this reply as
8 our contribution to shortening the Status Conference today. Taking into
9 account that we received a fairly comprehensive submission from the
10 Prosecution, we thought that we would provide this in response to their
11 long list of issues in light of the newly discovered evidence pursuant to
12 Rule 68. And we were contemplating another submission, and listening to
13 your comments now, that is very much in tune with what we had in mind.
14 And as I said, we have provided this to you and to the
15 Prosecution, expecting that perhaps there will be a decision or ruling
16 made today. If not, if this is not the case, we are prepared to submit a
17 longer, more comprehensive motion.
18 JUDGE HUNT: There can't be a decision today because I have no
19 power to determine, but there is one thing that you say there which I
20 think I should draw your attention to now. You have, in effect, invited
21 me as the Pre-Appeal Judge to sit down and read through all of the
22 material which you want from the Prosecution to determine, in effect as
23 your agent, that you have a legitimate forensic purpose to inspect it.
24 You're not going to get an order along those lines.
25 It has never been the task of a judge to determine those matters.
1 The only task the judge has to perform is whether there's some balancing
2 problem with public interest immunity or some state privilege, and even
3 then the judge does not do it until after the legitimate forensic purpose
4 has been demonstrated, and the legitimate forensic purpose is the one that
5 has been discussed already in a number of these cases.
6 It is for you to demonstrate that there is, to use a fairly
7 general phrase, a likelihood that you will be assisted in the Prosecution
8 of your appeal by having access to the documents. It's not for the judges
9 to look at the documents themselves to work that out for you.
10 So when you do your written submissions, your further submissions,
11 may I suggest that you concentrate on what I think is now the generally
12 accepted test that it is likely that you will be assisted in the
13 Prosecution of your appeal if you have access to the material which you
15 Now, the response by the Prosecution, as I say, I haven't read it
16 very carefully, but there is a very detailed response there which I think
17 you may have to take paragraph by paragraph to point out to us what you
18 say will be some error in relation to what they have said. Your argument
19 about equality of arms has been left to one side in most of the
20 decisions. If it has to be determined in this case, it will be an
21 interesting point because it will run counter to everything that has been
22 said so far. I think I warned you about that.
23 How long would you like in order to put your more detailed reply
24 onto the Prosecution's response?
25 MR. VISNJIC: [Interpretation] Your Honour, the same amount of time
1 that was given to the Prosecution to respond to our submission, which
2 means ten days, if that was the deadline given to the Prosecution.
3 JUDGE HUNT: Well, that will be just before the non-Orthodox
4 Christmas. So I suppose seeing that as we have plenty of applications for
5 the delay of trials at the beginning of the year in order to enable the
6 Orthodox members of the bar to celebrate Christmas with their families,
7 you should at least have the disadvantage of having to work right up to
8 the non-Orthodox Christmas. That will make it the 21st. The 21st is a
9 Friday, from memory. Perhaps we'll give you until the 24th.
10 Well, I'll make an order then that I extend it until the 24th of
11 December for a more detailed reply to the Prosecution's response in
12 relation of a motion for access to the documents.
13 The decision on the application for extension of time may be given
14 to you by that time. I'm not quite sure whether I can get all the judges
15 together to discuss it, but I shall certainly attempt to do so.
16 Is there anything else you want to raise?
17 MR. VISNJIC: [Interpretation] I would like one thing, if you would
18 take -- if you would want to take into account just one other aspect.
19 During the -- the regular procedure would be the Prosecution's briefs and
20 then our response. Now, what is happening in the appeal of the
21 Prosecution happens to coincide with our own appellant's brief, which is
22 30 days, and dealing with that now takes away some time from our own
23 brief. So I would like the Trial Chamber to perhaps take into account
24 that particular circumstance when reaching a decision. It's a matter of
25 simple mathematics, really, but I just wanted to point it out to you.
1 JUDGE HUNT: Mr. Visnjic, if I may say so, this issue has been
2 available for you to consider ever since the judgement was given. The
3 Prosecution made it very clear that they were going to appeal. You could
4 have gotten well under way with any response to that brief already instead
5 of attempting to get it all delayed. I'm not sure that you'll get a very
6 sympathetic hearing, having put it to one side, as it were, you should now
7 be given extra time.
8 Are you able to tell me when the 30 days expires? That's the
9 response to the Prosecution appellant's brief.
10 MR. VISNJIC: [Interpretation] 14th of December, Your Honour.
11 JUDGE HUNT: That's in three days' time. Well, Mr. Farrell, have
12 you got any suggestion in relation to that? I don't feel like giving in
13 to, in effect, fait accompli, but I'm not sure we'll get very much
14 assistance from something which is produced in three days' time.
15 MR. FARRELL: Your Honour, I understand what you said, and the
16 Prosecution's position was somewhat more eloquently articulated by you in
17 your questioning in light of the three-day time limit which we're going to
18 bring to your attention. Obviously, there's not much we can do in the
20 The only thing that I'd ask that you consider is that the
21 scheduling of the members of my section, in light of the coming holidays,
22 was that if the brief was to be coming in on the 14th of December, we had
23 scheduled the time frame of the period we have to file our reply. If, for
24 example, it's postponed for a week or two, then we will be in a difficult
25 position in terms of trying to schedule the time we require to file our
1 reply. That's all I wanted to bring to your attention on that matter.
2 JUDGE HUNT: I was thinking of making it the end of next week,
4 MR. FARRELL: That's what I was afraid of, to be frank.
5 JUDGE HUNT: Oh, I see. That will cause a problem.
6 MR. FARRELL: Well, we can certainly try and comply, and if not,
7 we'll file an extension of time. I'm sorry, a request.
8 JUDGE HUNT: Perhaps I should reveal that I will be the vacation
9 Judge for the second and third weeks of vacation, seeing as I'm one of the
10 few Judges who lives here -- well, at least on the basis of the distance
11 to travel is too far, so I have to live here. So that you'll get a
12 sympathetic hearing from the vacation Judge if you want an extension of
14 MR. FARRELL: Thank you. I'll inform the vacation Judge as soon
15 as we receive it if we need it, Your Honour.
16 JUDGE HUNT: Well, I think what I shall do then, I will extend the
17 time for the response to the Prosecution's appellant's brief to the 21st
18 of December, and I'll -- I'll make that order now. The other decision
19 will have to be given as soon as possible. Thank you.
20 MR. SEPENUK: Your Honour.
21 JUDGE HUNT: Yes.
22 MR. SEPENUK: Your Honour, I say this, needless to say, with the
23 greatest of respect for the Court, and I'd like to find out if there's any
24 chance at all that Your Honour might be persuaded to grant a bit more
25 time. I expect to be taking a prominent part in that preparation. I have
1 commitments for the next several days in the United States. And I
2 appreciate your comments -- Your Honour's comments about a perfect brief.
3 That certainly resonates with me. And much as I'd love to present a
4 perfect brief - we all would - we know that's not going to happen. But we
5 at least want to present an adequate and competent brief, Your Honour, and
6 we're wondering if you could at least give us until January 10th, which is
7 the date when our initial brief is due. If you could give us until
8 January 10th to file an answering brief, I think we could at least get a
9 competent brief by then, Your Honour, and then as much time thereafter as
10 Your Honour sees fit on the filing of our initial brief. And again, this
11 is a Herculean task, Your Honour, it truly is, to do a real job in this
12 case. We want to present at the very least a competent and adequate brief
13 to Your Honours.
14 JUDGE HUNT: But Mr. Sepenuk, may I just emphasise this is
15 response to the Prosecution's appeal in relation to sentencing. This is
16 not anything that needs anything more than an answer to their complaints
17 that the Trial Chamber, having made the findings that it did, has not
18 made -- given a high enough sentence. Now, that doesn't require an attack
19 upon the findings by you. You'll do that in your appellant's brief. And
20 if I -- if I give you the relief you are now seeking, what I'm doing is
21 granting the application that you have made to have the two of them filed
23 I don't know whether you realise that, but what you're doing is,
24 in effect, getting the relief to which I've already indicated I don't
25 think you're entitled to delay it until your own brief is due.
1 MR. SEPENUK: As I understand it, Your Honour, you've taken under
2 submission the question of when our brief is due. You intend to rule on
3 that later on.
4 JUDGE HUNT: Yes.
5 MR. SEPENUK: And --
6 JUDGE HUNT: But that your brief at the present --
7 MR. SEPENUK: Our opening brief.
8 JUDGE HUNT: Your own appellant's brief, in my current view, it
9 should be filed at the time that you've already been given the extension
10 to and that matters relating to the new evidence can be added later. And
11 I understand your arguments and that you would like to participate greatly
12 in that brief, but nevertheless, we have already considered an extension.
13 You've got the extension of 50-something days, as I recall, which is quite
14 a substantial one. So you are in a situation really where we've got to
15 get on with it. And your respondent's brief to the Prosecution's
16 appellant's brief has to do with the facts as they were found by the Trial
17 Chamber. So that doesn't involve what you were suggesting, that you would
18 have to look at the whole question of genocide. You accept the findings
19 but say the sentence imposed was not too low, in fact, it was too high,
20 which you will be arguing in your appellant's brief.
21 MR. SEPENUK: And I do --
22 JUDGE HUNT: That's a very simple --
23 MR. SEPENUK: I do appreciate that, Your Honour, but the
24 government's brief is an 80-page document, and to quote an American
25 jurist, their argument on cumulative convictions, I think it was
1 Judge Leonard Lernat Hand [phoen] who said, "Words are like pebbles in
2 alien juxtaposition." That is an awfully high-flown way of saying that
3 the government's brief on the cumulative conviction issue alone is very
4 dense. And I don't mean this -- this is not a criticism. It's said with
5 full recognition of the formidableness of the government's presentation.
6 And I know that because my own personal schedule - and I apologise
7 to Your Honour for invoking that. It's not my style. I don't like to do
8 that, but I feel I have to now - I'm really not going to be able to take
9 part in writing this brief if it's due December 21st. If Your Honour
10 could see fit to grant us to at least January 10th and then, with as much
11 conviction as I can muster, if you could give us some, certainly,
12 reasonable period beyond that for our opening brief, I think we'll be able
13 to submit an adequate brief, Your Honour.
14 JUDGE HUNT: Cumulative convictions, of course, has been a matter
15 which has been debated for a long time in this Tribunal. I was on the
16 losing side in the decision which finally determined where the cumulative
17 convictions should be imposed. So I have an interest in hearing what you
18 might like to say. But the fact is that in the Celebici case, Delalic and
19 others, the Appeals Chamber, by majority, gave a very detailed reasoning
20 why in every case, notwithstanding the facts of the particular case,
21 certain matters can be accumulated in convictions.
22 Now, that is something which really we're all bound by. I wish
23 somebody could upset it. I was rather proud of the judgement that I took
24 part in, but nevertheless, it is not the law. The majority is the law,
25 and it's a law which the Appeals Chamber will have to apply.
1 MR. SEPENUK: If we have to submit the brief by December 21st, if
2 that is Your Honour's final order, we will apologise in advance to Your
3 Honour for submitting a work product that's going to be rather sketchy,
4 and I say that with total respect for the Court. I think that the work
5 product that will be submitted will not be something that we'll be
6 particularly proud of, and I'm hoping that down the line -- I'm really
7 sincerely requesting Your Honour on the January 10th deadline to consider
8 that. Again, I don't think that we can get the quality of brief necessary
9 in this case to Your Honours by January 10th.
10 JUDGE HUNT: If you accept the decision of the majority in the
11 Celebici judgement and you simply deal with these particular crimes by
12 applying the test which the majority judgement laid down, it is almost a
13 mechanical process. That was one of the reasons why I thought it was
14 wrong. But nevertheless, that's what's been laid down. Now, the Trial
15 Chamber may have got that wrong, and we'd be very interested to hear
16 whether they got it wrong in the application of that mechanical test. But
17 that doesn't really require a great deal of work.
18 MR. SEPENUK: And believe me, Your Honour, you know much, much,
19 much more about this than I do, and that's part of my problem. I've been
20 in this case since October 19th. I still have cases that I'm trying to
21 clear up in Portland. I can tell this to Your Honour: I have refused any
22 other cases. I am not taking any new cases. This is absolutely my top
23 priority. But Your Honour has reeled off a list of cases, and at least to
24 this point, despite the fact that I have been working very, very
25 diligently, I am not yet any kind of an expert in this area, nor am I in
1 the genocide area, and the government has submitted some 50 pages or so, I
2 believe it is, on the genocide issue which requires very serious
3 reflection and analysis if we're to give the Court the aid that it
4 suggests -- that it needs, rather. The case is not only important to
5 General Krstic -- and by the way, in terms of his being in prison, I think
6 it's fair to say that I believe that General Krstic has no problem with
7 the request of his lawyers to obtain additional time. But this case is
8 going to have very serious precendential value. I don't want to talk
9 about anybody other than General Krstic. He is indeed our client. But I
10 think it's obvious, particularly in terms of what went on today, Your
11 Honour, this case is going to have very important precendential value in
12 future cases.
13 JUDGE HUNT: And that's why we will be looking forward to some
14 very good advocacy when you come to argue the case before the Appeals
15 Chamber. The briefs are the basic materials, but the case has to be
16 litigated orally before the Appeals Chamber. And the difficulties that
17 you say you are having in relation to the preparation of your written
18 brief are matters that will obviously be taken into account, and I would
19 think that if there is some reasonable explanation given, that if you need
20 to add to it later, as a result of further studies, that you will be
21 allowed to do so. But it's nevertheless, I'm afraid, a matter where we
22 have to say this matter must proceed, and it may be that it will not be
23 the perfect written document. But by the time we get on to the hearing of
24 the appeal, one would expect you to be able to put it in the most
25 perfectly clear set of propositions for us to deal with, and I should
1 imagine that at that stage your understanding of the case will be a lot
2 better. And you're not going to be punished if there is something that
3 you want to change in your appellant's brief, but we must move on. So I
4 don't propose to change the 21st for the response to the Prosecution's
5 appellant's brief, the 24th for the more detailed reply to the
6 Prosecution's response to your motion. But at the moment, we've got to
7 get on with the appellant's briefs and the respondent's briefs in the two
9 I will give you a decision on the issue of the extension of time
10 for your own brief as soon as possible, hopefully by the end of this
11 week. If not, it will be by, hopefully, somewhere between Christmas and
12 New Year. But you will get -- I think you had better proceed upon the
13 basis that your chances of getting a further extension are a little
14 remote, but that's something I have to discuss with the other Judges.
15 Yes, Mr. Farrell.
16 MR. FARRELL: I'm sorry, Your Honour. Just one matter. There
17 were two things that you raised with respect to their reply. I just
18 wanted to raise them. One, there was no argument made in their motion for
19 the production of evidence as to why an oral hearing was necessary, so our
20 response was simply that there's no argument put forward. You've asked
21 now that that be placed in their reply, I understand.
22 JUDGE HUNT: No. I've asked them to reply in more detail to your
24 MR. FARRELL: Okay. My apologies. My mistake, then. The other
25 issue was that, unless I'm incorrect, you were referring to the legitimate
1 forensic purpose test.
2 JUDGE HUNT: Yes.
3 MR. FARRELL: The basis of the application is the failure under
4 Rule 68 and the legal application of Rule 66 to appeals. If they do make
5 reference to that, then, of course, if it's necessary, I just wanted to
6 indicate that we didn't address those issues. That's my concern, Your
8 JUDGE HUNT: Well, if you have any problem with that, if they
9 raise it in their reply, we'll give you a chance to respond. I was rather
10 surprised that in your response you don't appear to have referred them to
11 the decision in Kordic, which said that Rule 66 does not apply after
13 MR. FARRELL: I apologise. I noticed that. I also noticed the
14 other decision with respect to the extension of time, both in Kordic and
16 JUDGE HUNT: Yes.
17 MR. FARRELL: Thank you.
18 JUDGE HUNT: Well, you were in it, as I recall. All right, then.
19 We'll adjourn now.
20 --- Whereupon the Status Conference adjourned at
21 5.25 p.m.