Tribunal Criminal Tribunal for the Former Yugoslavia

Page 32261

1 Wednesday, 1 September 2004

2 [Defence Opening Statement]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 9.05 a.m.

6 JUDGE ROBINSON: Mr. Milosevic, the concluding part of your

7 opening statement.

8 THE ACCUSED: [Interpretation] Mr. Robinson, I hope you will bear

9 in mind that we started with a delay.

10 During the NATO aggression, poisons were not used directly, but

11 consequences similar to those of a chemical war were caused all the same

12 in other ways. For example, by bombing plants and warehouses containing

13 chemicals, oil refineries, chemical factories in Pancevo, Novi Sad,

14 Lucani, Baric. So that a chemical war was also waged against Serbia.

15 The powers that be do not like the sovereignty of Serbia and

16 Kosovo, although it is guaranteed by the conditions of the cease-fire and

17 contained in Resolution 1244, which is not being respected at all. Their

18 interest is to use the territory of Kosovo and Metohija for their

19 geostrategic and political goals; to use the mineral wealth, water

20 resources and other resources of Kosovo. We bear in mind that Kosovo

21 contains the biggest lignite mines in Europe. Close to 14 billion tonnes.

22 And there are also mines at Sink [phoen] and lead mines of enormous value

23 there. On Kosovo and Metohija there are also reserves of cobalt, nickel,

24 which are also very valuable. And the electricity plants in Kosovo are

25 very significant for the energy balance of Serbia.

Page 32262

1 All this demonstrates the basest motivation of the so-called

2 fighters for human rights of the Kosovo Albanians from the West. It is

3 evident that the source of the overall crisis in Kosovo and Metohija,

4 which has been going on ever since the Turkish occupation of that area

5 until today, is the wish of Albanian nationalists to create a Greater

6 Albania. They do not conceal this aspiration, and they do not refrain

7 from any means. They don't hesitate to use any means to achieve that

8 goal.

9 This so-called Prosecution is impudent enough to include in their

10 indictment against me and the Serbs that in the middle of the state of

11 Serbia, on the territory which is the very heart of the medieval Serbian

12 state, that there we wanted to create a so-called Greater Serbia. How can

13 Serbia, great or small, be created in Serbia itself is something that they

14 themselves are unable to explain or prove. And this is best demonstrated

15 by the first part of this operation which you call a trial, which like the

16 remainder of that operation, thanks to the nature and contents of this

17 false indictment, has turned into a simple and pure farce. However, the

18 amount of money set aside is not insignificant. It is not a cheap farce.

19 The money set aside by Saudi Arabia, George Soros, and other ostensibly

20 impartial donors, the US and so on.

21 Let me add that in 1998 when Holbrooke visited us in Belgrade, we

22 told him the information we had at our disposal, that in Northern Albania

23 the KLA is being aided by Osama bin Laden, that he was arming, training,

24 and preparing the members of this terrorist organisation in Albania.

25 However, they decided to cooperate with the KLA and indirectly, therefore,

Page 32263

1 with bin Laden, although before that he had bombed the embassies in Kenya

2 and Tanzania although he had already declared war.

3 I am convinced that one day all this will have to come to light,

4 these links, and that soon there will be a time when Clinton, Albright,

5 and others will have to be held responsible if not for what happened to

6 the Serbs then at least for what happened to their own people.

7 I will read a quotation and then I will have to move on to other

8 topics. The airstrikes and the unprecedented strikes, terror, sabotage,

9 murders of leading statesmen, the overwhelming attacks on all enemy lines

10 that will take place at a single point in time, this is the war of the

11 future on an unprecedented scale. I assume this reminds you of what the

12 NATO forces did to Yugoslavia in 1999. The aggression that this side

13 whose duty it would be to pay attention to that refuses to do so, but it

14 is not Clinton or Clark who said this, it is Hitler, although it fully

15 describes what they did. This was published in New York in 1940 by Herman

16 Rausching, My Confidential Conversations with Hitler. And this book goes

17 on to say, "No so-called international law or treaties will prevent me

18 from seizing the opportunity that is presenting itself." And then he goes

19 on to speak about how he will enslave France, how he will enter France as

20 their liberator, and how he will convince the middle class that he has

21 come in order to establish social law and order and a just social order.

22 As regards the war in Slovenia and Croatia, to begin with I will

23 only mention briefly that in Warren Zimmerman's book - he was the last US

24 ambassador to the SFRY - on page 173 he makes the following comment on the

25 position of the JNA and the so-called heroic struggle in Slovenia and

Page 32264

1 Croatia against the still common and legal Yugoslav army. I quote: "The

2 JNA was in its own country. Its troops were legitimately deployed in all

3 the Yugoslav republics. Even so, after the declaration of independence by

4 Slovenia and Croatia, the troops were treated as occupying troops even

5 when they did not leave their barracks. The Slovenian tactics and later

6 on --" Very well, I will slow down. "The Slovenian and then the Croatian

7 tactics, which cannot boast of any particular heroism, was based on

8 avoiding open conflict and attempting to bring the soldiers in the

9 barracks to a state of hunger and forcing them to leave. The JNA, which

10 until yesterday was a protector of the country and today has been treated

11 as the occupier, had a strong effect on the soldiers who were torn between

12 the two sides."

13 Further, Zimmerman, bearing in mind all the circumstances,

14 concludes in his book that it is wrong to speak of an attack by the JNA on

15 Slovenia and later on on Croatia. One of the most active anti-Serb

16 activists, Warren Zimmerman, who was then on the spot, is pointing to a

17 well-known fact that it is wrong to speak of an attack by the JNA on

18 Slovenia and Croatia while you here have been given the task of saying

19 that aggression was perpetrated there by the JNA on its own country.

20 Within Yugoslavia the Croatian separatist tendencies did not fully

21 disappear with the defeat and disappearance of the quisling independent

22 state of Croatia in World War II. These tendencies began to be displayed

23 quite openly in the early '70s with the so-called mass movement in Croatia

24 by a part of the republican leadership when demands were put forward for

25 the independence of Croatia and very strong pressure and threats were

Page 32265

1 directed towards the Serbian people. Although in post-war Yugoslavia,

2 among the most prominent state leaders, the Croats were given especially

3 significant posts, and they dominated in absolute numbers. Even so, in

4 Croatia and in some other places, the thesis was constantly fabricated

5 that there was so-called Serb hegemony there. What the Serb domination or

6 hegemony looked like we shall see.

7 From World War II throughout the existence of Yugoslavia, it is

8 very well known that from the end of World War II until his death in 1980,

9 the undisputable leader was Tito, who was a Croat. During the existence

10 of socialist Yugoslavia from 1945 to 1992, over a period of 47 years at

11 the head of the Yugoslav government, 30 years, were Croats. And during

12 the remaining 17 years, it was all the others. Only one of them was a

13 Serb, from 1963 to 1967, and that was Petar Stambolic.

14 When all this is borne in mind, how can we say that it was the

15 Serbs who dominated in the political leadership of the country? As for

16 the army, your own witness described the composition of the top leadership

17 at the time of the break-up of Yugoslavia. There was one Yugoslav and

18 that was the minister of defence, Veljko Kadijevic, from Croatia, from a

19 mixed marriage between a Serb and a Croat woman; two Serbs, one from

20 Serbia, one from Bosnia; eight Croats; two Slovenians; two Macedonians;

21 and one Muslim.

22 We should add to this that Tito's closest collaborator and the

23 creator of the constitutional system in all its stages was a Slovene,

24 Edvard Kardelja. All this shows quite clearly that the story of some kind

25 of Serbian domination in Yugoslavia is a pure and simple lie as well as

Page 32266

1 the statement that the Croats and Slovenians had cause to complain of

2 inequality and insufficient representation. The story of Serb hegemony

3 was only a propaganda tool which went against the truth and which was used

4 to justify secessionist aspirations.

5 In post-war Yugoslavia, the Ustasha genocide over the Serbs was a

6 topic that was not much talked about. The remaining Serbs on the

7 territory of the former Independent State of Croatia, especially those in

8 the Krajina which the well-known Serbian poet Matija Beckovic described as

9 the remnants of a slaughtered people, tacitly agreed not to talk about the

10 sufferings of their relatives, even not to bury them in a proper way. The

11 mass graves, Jadovnov [phoen], Pribilovci, Golubnjaca were simply covered

12 over with concrete and left to be forgotten, whereas here the thesis has

13 been put forward that the Serbs reburied their dead later on, although

14 these people had never been given a proper burial.

15 Bearing in mind this terrible mass crime from the not so distant

16 past, what could the Serbs in Croatia feel when at in February 1990, at

17 the rally of the HDZ in Zagreb, the president of that party, Tudjman,

18 said, among other things, the Independent State of Croatia was not only a

19 quisling creation and a fascist crime, it was also an expression of the

20 historical aspirations of the Croatian people. What was more natural than

21 for them to respond and to raise their voices before "the Croatian

22 people," in quotation marks, because this was not referring to all Croats

23 but to extremists aided from abroad, before they set out anew to realise

24 their so-called historical aspirations.

25 All this is information that you have and that you are

Page 32267

1 overlooking. This illegal Prosecution was not hindered from speaking in

2 paragraph 94 of its illegal indictment about the HDZ without any

3 qualification, although this was a party which revived the practices and

4 symbols from Ustasha times. While in paragraph 95 of this same false

5 indictment, the pro-Yugoslav Serb Democratic Party is called a nationalist

6 party. This is a manipulation which they permitted themselves in this

7 kind of presentation because they know everything about the chauvinist

8 activities of the HDZ, but they are not allowing a word to be said about

9 it. Everything about the HDZ had to be suppressed, and the SDS had to be

10 blackened.

11 This shows quite clearly that these activities of the Serbian

12 people -- what they fail to say is that the activities of the Serbian

13 people were activities aimed at defence.

14 Warren Zimmerman, in his book The Source of a Catastrophe speaks

15 about how in Tudjman's Croatia, in quotes, "The rights of Serbs were

16 seriously violated. They were dismissed from work, asked to sign

17 statements of loyalty." The irony is greater because here they tried to

18 impute that I requested some type of statement of loyalty. Well, they

19 couldn't find then a single person who had to sign this statement of

20 loyalty to me. This is absurd. Their homes and property were attacked,

21 Zimmerman continues, says that Tudjman's ministers called the Serbs by

22 derogatory names.

23 On page 215 of that book he says that Tudjman played a major role

24 in the violent death of Yugoslavia and the violence in Bosnia and

25 Herzegovina and Croatia. He said that he was said to have a Nazi attitude

Page 32268

1 towards the Serbs due to which Croatia turned into an undemocratic and

2 explosive republic, and these are his words.

3 The anti-Serb path of the new Croatian government is linked to the

4 Nerval Group. Nerval is a place in Canada where the Franciscan monks and

5 Ustashas were situated. These neo-Ustasha groups were assessed by the

6 Canadian government as more extreme than the actual pro-Nazi-Ustasha

7 organisation during Hitler's Independent State of Croatia.

8 In spite of that, the Croatian press is writing about these things

9 but due to a shortage of time I cannot present this to you now. But the

10 gist is in the following: At the time already in 1987, in 1987, as early

11 as that, an approach was made to the future Independent State of Croatia

12 containing this programme containing four main points taken over from

13 information coming from Croatia, from the Croatian magazine Globus.

14 Number one: At any cost Croatia must be an independent state. We must

15 work on having Croatia become ethnically clear and homogenous. In other

16 words, the Serb national community should be reduced to a minimal minority

17 so that they would not be a disruptive factor. The struggling Croatia

18 should be led on one front, and the main opponent are the Serbs. In order

19 to defeat the Serbs, we need to join together with the Communists and the

20 Partisans and in union with them we will win our finer victory. And

21 four: As far as Bosnia and Herzegovina is concerned, such a policy should

22 be conducted which would sooner or later lead to the joining of Western

23 Bosnia to Croatia to have a pure Croatian territory.

24 Martin Spegelj, his defence minister during the time of these

25 events in the Dnevnik on the 28th of October, 2001, said publicly, "If a

Page 32269

1 house of a Serb is burned down, he will not have anywhere to return." He

2 said that Gojko Susak said this. Again in Novi List, Spegelj said on the

3 29th of October 2001 that Tudjman and Susak essentially made a concept of

4 a pure nationalist state after the model of Croatia from World War II.

5 In December, on 8th of December, 1993, the New York Times speaks

6 about 10.000 homes which were blown up with dynamite. I'm not going to

7 quote from that in order not to waste time.

8 In spite of the pressures, harassment, physical attacks and an

9 overall degradation on the individual and collective level, the Serbian

10 people in Croatia were also discriminated against in a legal way. The

11 Christmas Constitution is well known, which deprived the Serbs of all the

12 rights that they enjoyed prior to that. In The Balkan Odyssey, Lord Owen

13 says on page 61 that they resisted joining the settlements populated by

14 Serbs which generally together formed the military border between the

15 Habsburg and the Ottoman Empires, which was defended from Vienna and not

16 from Zagreb. The sense grew after 1945 because this population was

17 exposed to genocide during World War II by the Croatian Ustashas. A very

18 small number of commentators in 1995 realised or recognised that the

19 Croatian government in attacking Krajina did not liberate this land since

20 the Serbs had inhabited it for over three centuries. This is something

21 that is written by Lord Owen.

22 Already in mid-1990, there was a series of actions, attacks, and

23 killings, and because of the Serb reaction by placing barricades to the

24 entrances to their settlements, this revolt was called the log revolution.

25 The Croatian authorities interpreted these reactions of Serbs who were

Page 32270

1 afraid to remain without any means of collective defence in relation to

2 the recurring Ustasha terror and ideology, considered that to be an

3 attack, an aggression against the Croatian state. Well, I don't know how

4 one can make an attack by placing logs in front of the approaches to their

5 houses.

6 Spegelj, who said what I quoted before, said the following:

7 "Knin, we will resolve in such a way that we will massacre them. We will

8 massacre them." This is what we have international recognition for.

9 There are numerous proofs of this, that these are not just empty words but

10 that we are talking about dead people here.

11 In his book The Invasion of Serbian Krajina, Gregory Elich speaks

12 of the following: "In 1990 Tudjman said, 'I'm glad my wife is neither a

13 Serb or a Jew.' [In English] and wrote that accounts of the Holocaust were

14 exaggerated and one-sided."

15 [Interpretation] I will skip over many of his quotes but mention

16 just some of them. "[In English] During its violent secession from

17 Yugoslavia in 1991, Croatia expelled more than 300.000 Serbs, and Serbs

18 were eliminated from ten towns and 183 villages." [Interpretation] There

19 was a mistake. Yes, that's correct; and 183 villages.

20 And then: "[In English] Tomislav Mercep, until recently the

21 advisor to the Interior Minister and a member of parliament, is a

22 death-squad leader. Mercep's death squad murdered 2.500 Serbs in Western

23 Slavonia in 1991 and 1992, actions Mercep defends as 'heroic deeds.'"

24 [Interpretation] You have here the testimony of Miro Bajramovic, a

25 member of that death squad. I have it on tape, but I don't have time to

Page 32271

1 show it to you.

2 Gregory Elich goes on to say: "[In English] Sadly, the Clinton

3 administration's embrace of Croatia follows a history of support for

4 fascists when it suits American geopolitical interests."

5 [Interpretation] Susan Woodward of the Brookings Institution, in

6 the book The Balkan Tragedy 1995, says: "[In English] The Croatian

7 government did little to protect its citizens from vicious outbursts of

8 anti-Serb terrorism saw mixed communities of Dalmatia and interior during

9 the summer months of 1989 when Croat zealots smashed store fronts,

10 fire-bombed homes, and harassed and arrested potential Serbs leader. In

11 many parts of Croatia, Serbs were expelled from jobs because of their

12 nationality. Discrimination was not limited to this early flare-up but

13 increased over the following years."

14 [Interpretation] How long before this log revolution when this was

15 going on in 1989 and that criminal activity that you are ascribing to the

16 Serbs when they were actually just defending themselves?

17 Chris Hedges, in The New York Times on the 16th of June, 1997,

18 says: "[In English] [Previous translation continues]... 500.000 of

19 600.000 ethnic Serbs from the country and carried out de facto annexation

20 of largely Catholic region of Herzegovina," et cetera.

21 [Interpretation] I don't have time. They are talking about the

22 Kristallnacht in Zadar, talking about expulsion of tens of thousands of

23 people from their apartments. They're talking about in the Croat papers

24 in Feral, in the Tjednik, new proof about the -- of the crimes in Vukovar,

25 and I'm quoting them, "when the corpses of dead bodies floated down the

Page 32272

1 Danube, then in Gospic in the Croatian coastal area," and so on.

2 The magazine Identitet, a Croatian magazine, says that the least

3 work was done to shed light on the crimes in Osijek in 1991 and 1992 when

4 several Serb civilians were killed, and they explain how they were taken

5 away and how they were killed.

6 When we're talking about Gospic, three officers of the Croatian

7 army applied to testify here about the crimes. They were not given any

8 protection, so the witness Milan Levar, who was supposed to testify

9 against those who committed the Gospic massacre was liquidated.

10 Erdemovic, who admitted that he had killed 100 people in Srebrenica, whom

11 we arrested, who came here because he asked to be brought here, he asked

12 to be extradited to The Hague, and he was not our citizen so he was

13 extradited at his own request, you provided protection for him although he

14 admitted killing 100 people. He admitted that to our investigative

15 organs, and you released him after four years to -- to live unpunished.

16 But you did not protect these other witnesses, but you did extend

17 protection to him so that he can go back to -- I see that I will have to

18 skip some things. The time flies, unfortunately.

19 On one page 182 of his book, David Owen touches upon the following

20 topic and he says: "Mostly the Serbs who remained there didn't have any

21 freedom at all. Many JNA barracks were surrounded by the Croatian army,

22 which was the reason why the JNA reacted so strongly in places like

23 Vukovar." He says "places like Vukovar," but that is actually the only

24 place where the JNA reacted forcefully. But he does explain why this

25 happened.

Page 32273

1 The explanation is also what is being written in the Croatian

2 press now about how many corpses were floating down the river much

3 earlier, before the events in Vukovar.

4 Vukovar was the only exception and the only place where the JNA

5 responded to being surrounded, to its members being attacked, to civilians

6 being attacked, responded forcefully. So it is without doubt that the war

7 in Croatia was caused and initiated by the Croatian authorities in order

8 to effect a violent and illegal secession, and, as the years that will

9 come would show, to achieve an ethnically clean Croatian state.

10 And arising without doubt from everything is that the Serbs were

11 forced to defend themselves. They had to fight for their survival. So

12 nobody is doubting the existence of individual crimes which were the

13 result of the chaos that had occurred and which this so-called indictment

14 is trying to present as the result of some kind of joint criminal

15 endeavour, although all the facts, the historical, military, and legal

16 facts, speak to the contrary. And they base this on testimonies such as

17 the testimony of Milan Babic, who was in conflict with his very own

18 leadership precisely because of his own extremism and similar witnesses.

19 It is well known that primarily thanks to the efforts of Cyrus

20 Vance but also thanks to the efforts of the Republic of Serbia and my own

21 efforts, the Vance Plan was adopted. The protected zones were created

22 which the Croat army never respected, because it is well known how many

23 attacks there were: Miljevacka, Klatno [phoen], Peruca, Medak pocket,

24 Zemunik, Western Slavonia, Flash, Storm, and so on. How many hundreds of

25 Serbs were killed in each one of those attacks and all that happened.

Page 32274

1 Weapons were under a double lock. The Serbs had handed it over, but they

2 took it back when they were attacked in order to defend their very lives

3 and to prevent a massacre.

4 In view of all the above, Lord Owen in his book says:

5 "The Croatian army equipped itself quickly with planes, heavy

6 artillery. All this came from neighbouring European countries and was

7 bought in the former eastern Germany. When this happened, it was not

8 difficult, as far as the Serbs were concerned, why they resisted

9 demilitarisation and demobilisation. The Serb factor was a consolidating

10 factor, and the Croatian side was a destabilising factor."

11 I am finishing my quote from the Owen book. And he said that the

12 biggest ethnic cleansing in the Yugoslav crisis was the ethnic cleansing

13 in front of which this institution remains unmoved, and that is the

14 expulsion of thousands of Serbs and hundreds killed. When something like

15 this happens to the Serbs, it does not appear to be a crime.

16 I will just say a few words about Bosnia and Herzegovina. It is

17 well known that peace lasted as long as the former Yugoslavia lasted, with

18 a small delay. We had this peace. It was there because the absence of

19 tutors and occupiers finally turned the citizens of this multi-cultural

20 state towards one another.

21 In the changes of the constitution on the 31st of July, 1991, in

22 Article 1, the drafters wrote that Bosnia and Herzegovina is a democratic,

23 sovereign state, an equal community of all of its citizens - Muslims,

24 Serbs, and Croats of members of other nationalities that live there; and

25 that the Socialist Republic of Bosnia and Herzegovina is within the

Page 32275












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Page 32276

1 composition of Yugoslavia. This was written in the new constitution.

2 However, even during this peaceful life among the population in this

3 republic, you can still see -- see on the site of the Bosnian organisation

4 Mladi Muslimani, Young Muslims, organised in 1939, find the oath which

5 they created in the second half of 1947 in which they talk about an

6 uncompromising struggle against everything that is not Islamic, that they

7 will sacrifice everything on the path, including their own lives, if this

8 is in the interests of Islam.

9 How can you fight in a multi-ethnic community like Bosnia and

10 Herzegovina and Yugoslavia against everything that is not Islamic? And if

11 we keep in mind that the vast majority of the population there is not

12 Islamic. And it happened that precisely these young Muslims had the way

13 open to them and the means placed in their hands in order to conduct a

14 holy war.

15 The first national political party that was created was the Party

16 of Democratic Action of Izetbegovic. It is characteristic that the

17 founder of the station and Izetbegovic's sponsor, Izet Adil Zulfikarpasic,

18 speaks in his book about Novi Pazar the following:

19 "When we came to Novi Pazar, we were welcomed by a large mass of

20 people. The authorities were quite fair, the police also. Patrol cars

21 made sure that everything passed without any conflict. In the town

22 itself, when we arrived, the police officers withdrew from the streets and

23 we could see only SDA guards everywhere."

24 But then something happened at this rally that surprised me

25 considerably. There was a rally and this rally was conducted in a sort of

Page 32277

1 pro-fascist way. There were hundreds of religious flags on the stadium.

2 And then he continues to speak in his book:

3 "Whenever we went in a large number, then the imams would

4 appear. They were our hosts. They organised everything. Religious

5 officials joined the party. At some point I requested that the flags be

6 removed, but then people appeared in caftans and dzelabija, which nobody

7 actually ever wore in Bosnia before then."

8 I'm going to admit some things. Anyway, Zulfikarpasic left the

9 party because he didn't want any part of that.

10 It is a well-known thing that Izetbegovic, as far back as the

11 spring of 1943, led the Muslim youth of Sarajevo, and in that capacity he

12 was the host of Amin al Huseini, the great mufti from Jerusalem, Hitler's

13 friend who had fled to Germany. And in his book he advocates jihad, a

14 holy war against Christians and Jews. All of this within the Independent

15 State of Croatia of Pavelic. And at Himmler's initiative, and through the

16 mediation of this same Huseini, a Muslim Wafe SS division was established.

17 Not one, as a matter of fact; a Handzar Division, a Kama division, and

18 also a Skenderbeg division consisting of Muslims from Kosovo and Metohija.

19 Unfortunately I have to be very quick and move through this very

20 quickly.

21 Izetbegovic in 1990 again published his Islamic declaration, and I

22 quote from it:

23 "The creation of a single Islamic Community from Morocco to

24 Indonesia. Also the fact that non-Islamic institutions cannot co-exist

25 with Islamic institutions. We do not herald an era of piece. We herald

Page 32278

1 an era of unrest. People who are asleep can be awakened only by blows.

2 First of all, we have to be preachers and only then soldiers. The Islamic

3 movement can and shall take over power as soon as its numbers rise to the

4 extent that it cannot only topple the existing non-Islamic government but

5 build an Islamic government. Members of the Islamic faith should learn,

6 using the example of Pakistan, what should be done and what should not be

7 done. Nowadays, the aspiration for all the Islamic communities and all

8 Islam believers in the world should be brought together. This is all

9 aimed at an Islamic Community from Morocco to Indonesia, from Europe to

10 Africa."

11 So you can imagine how people who were not the Islamic faith felt

12 in Bosnia and Herzegovina in view of these promises that they were

13 supposed to live in some kind of European Pakistan. You can imagine what

14 their reaction could have been.

15 However, as for the allegiance of the -- of Alija Izetbegovic to

16 the Islamic fundamentalist cause, nobody can testify better to that than

17 Islamic fundamentalists themselves. On the 11th of April, 1993, Reuters

18 reports from Dubai that Alija Izetbegovic received an Islamic award in

19 Riyadh in great festivities, and I quote, "for his contribution to jihad,

20 the holy war against non-believers."

21 So this reward confirmed that Alija Izetbegovic persevered along

22 the road that he had opted for when he was a young man, and in accordance

23 with the oath of allegiance he took in 1947, it meant an uncompromising

24 struggle against everything, especially everything non-Islamic. But it

25 was not only the Islamic fundamentalist circles that knew of this kind of

Page 32279

1 nature of the Bosnian-Herzegovnian regime; it is also clearly stated in

2 the republican report in the Senate of the United States of America. This

3 is a document dated the 16th of January, 1997.

4 I'm going to go through it very, very quickly. It refers to three

5 questions.

6 First of all, I am going to omit the rest, how it all went.

7 The last sentence in one is:

8 [In English] "And the departments of state and defence were kept

9 in the dark until after the decision was made."

10 The second point speaks of:

11 [In English] "The military Islamic network, along with the weapons

12 Iranian Revolutionary Guard and Vivac Intelligence Operatives, entered

13 Bosnia in large numbers along with thousands of Mujahedin, holy warriors,

14 from across the Muslim world. Also engaged in the effort were several

15 other Muslim countries, including Brunei, Malaysia, Pakistan, Saudi

16 Arabia, Sudan, and Turkey, and a number of radical Muslim organisations.

17 For example, the role of one Sudan-based humanitarian organisation..."

18 [Interpretation] This is under quotation:

19 [In English] "... one relief agency has been well documented."

20 [Interpretation] Point number 3:

21 [In English] "Islamic character of the Sarajevo regime. This

22 Islamist orientation is illustrated by profiles of important officials,

23 including President Izetbegovic himself. The progressive Islamisation of

24 the Bosnian army, including the creation of native Bosnian Mujahedin

25 units, credible claim that major atrocities against civilians in Sarajevo

Page 32280

1 were staged for propaganda purposes by operatives of the Izetbegovic

2 government in suppression of enemies, both non-Muslim and Muslim."

3 [Interpretation] In this document, it is corroborated that they

4 themselves staged attacks against their own citizens.

5 I'm going to skip over some other things.

6 [In English] The report concluded, page 2:

7 "The Administration's Iranian green light policy gave Iran an

8 unprecedented foothold in Europe and has recklessly endangered American

9 lives and US strategic interests."

10 [Interpretation] Then there is reference to the presence of Divak,

11 also sleeping agents; then the AID, Izetbegovic's intelligence service

12 that you brought here, rather, you brought their members here to testify

13 against me. "[In English] [Previous translation continues]... point of

14 jointly planning terrorist activities."

15 [Interpretation] And then it says: "[In English] Clinton gave a

16 green light that would lead to this degree of Iranian influence."

17 [Interpretation] Then they give explanations as to what this is all about

18 and you will have an opportunity to see this document. "[In English]

19 [Previous translation continues]... Islamic revolution in Europe."

20 [Interpretation] And then there is reference to this phoney

21 humanitarian agency. "[In English] [Previous translation continues]... is

22 believed to be connected with such fixtures of the Islamic terror network

23 of Sheikh Omar Abdel-Rahman, the convicted mastermind behind the 1993

24 World Trade Centre bombing, and Osama bin Laden, a wealthy Saudi immigrant

25 believed to bankroll numerous militant groups."

Page 32281

1 [Interpretation] And then it says: "[In English] [Previous

2 translation continues] "'... into Bosnia was of great assistance in

3 allowing the Iranian to dig in and create good relations with Bosnian

4 government,' a senior CIA officer told Congress in a classified

5 deposition. And it is a thing we will live to regret because when they

6 blow up some Americans, as they no doubt will before this thing is over,

7 it will be in part because Iranians were able to have the time and

8 contacts to establish themselves well in Bosnia."

9 [Interpretation] Later on they blew them up, the Kenyans, the

10 Tanzanians, and also these crimes that were committed in the Balkans, but

11 I don't have time to speak of that now. I really have to move on very

12 quickly because you've been so stingy with time.

13 I just wish to note that the 31st of March, 1991, in

14 Bosnia-Herzegovina today, or rather in this federation, is an official

15 holiday. It is the Day of the Patriotic League, the military formation

16 that was established by the SDA. The 31st of March, 1991.

17 They organised their party along military lines as well a year

18 before the conflict broke out. And in this year, 1991, when conflicts

19 broke out, half of the Serbs were killed then out of the total number of

20 Serb victims. Analyses show, experts have proven, that Serbs were not

21 prepared for the war at all, whereas these people were preparing for

22 themselves for an entire year.

23 Owen says in his book the picture of the Bosnian Muslims of being

24 unarmed is not a true one. Even Alija Izetbegovic himself admitted on

25 television that they were armed through secret channels. And he speaks of

Page 32282

1 millions of bullets and tens of thousands of bombs, grenades, shells,

2 hundreds of thousands of uniforms, and so on and so forth. And according

3 to the statement made by Sefer Halilovic, the Chief of the Main Staff of

4 the army of Bosnia-Herzegovina, in an interview he gave to Nasi Dani on

5 the 25th of September, 1992 - 1992, gentlemen - the Patriotic League, when

6 the war started, had 103 municipal staffs and 98.000 fighters. 103

7 municipal staffs. And Bosnia-Herzegovina had a total of 109

8 municipalities altogether. Everything is clear as far as war preparations

9 are concerned. It is clear to all but you.

10 The Serb side had three objectives. That can be seen when the

11 entire political situation is analysed. The first one was to preserve the

12 Yugoslav federation. And then, if it is impossible to obtain that

13 objective, to attain their own right to self-determination like the right

14 enjoyed by other peoples in Yugoslavia. So in case that objective is

15 impossible too, then finding ways and means through negotiations to ensure

16 an equitable position for Serbs in Bosnia-Herzegovina.

17 The Serb side advocated the preservation of Yugoslavia, and it was

18 not only the fact that this was in line with domestic and international

19 law but everything else worked in favour of that. Unfortunately, there is

20 no time to discuss all of this now.

21 How justified the requests of the Serb people were, their calls

22 for an equality of rights, that is deeply rooted because the Serb people

23 have lived in the territory of Bosnia-Herzegovina for over a millennium.

24 So there are deep roots in history.

25 I have to speed things up.

Page 32283

1 If one looks at the chronology of all events, and we will have the

2 opportunity to deal with this through witnesses, indicates the following:

3 First that what the Serbs did were reactions to what the Muslim side did,

4 that is to say violations of the constitutional rights of the Serbs. And

5 this, what the Serbs did, was only making up for what the other two, the

6 Muslims and the Croats, took away from them. It can be seen that the

7 other side gradually moved away, and finally the Serbs were cornered and

8 agreed to a minimum of their demands. Finally the Dayton Agreement

9 sanctioned their minimal rights, but unfortunately, later on in a fully --

10 this happened only after a great deal of blood was shed unnecessarily.

11 The last chance of preserving peace in Bosnia-Herzegovina before

12 the war was the Cutileiro plan. Everybody signed the plan, and when

13 Zimmerman talked him into it, Izetbegovic withdrew his signature from the

14 plan. I believe that we are going to have ample documents about this that

15 we will present later.

16 All of this shows very clearly that the Serb side was not the one

17 that wanted war. It did its best to prevent a war.

18 After the international recognition and after the break-out of the

19 war, and it is no accident that the two coincided, the JNA started

20 withdrawing from Bosnia-Herzegovina in accordance with the previously

21 signed agreement. That is stated in the report of the Secretary-General

22 of the United Nations, Boutros-Ghali, dated the 30th of May, 1992,

23 addressed to the Security Council, in which it is also stated that the

24 army of Republika Srpska, established on the 15th of May, was not under

25 the control of Belgrade. And it also states that a considerable part of

Page 32284

1 the territory of Bosnia-Herzegovina was under the occupation of the

2 official forces of the Republic of Croatia. However, the then president

3 of the Security Council, the Austrian Petar van Felner [phoen], concealed

4 or, rather, withheld part of that report of Boutros-Ghali until sanctions

5 were voted for by the Security Council against Yugoslavia. And it is only

6 Croatia that should have had sanctions imposed on it on the basis of the

7 report, by no means the Federal Republic of Yugoslavia.

8 These are all the facts that I managed to present over this short

9 period of time. This is only the tip of the iceberg. And now what have

10 you come up with against these undisputable material facts and historical

11 facts?

12 In this false indictment, you mechanically compiled in an

13 unnatural way a series of events - and crimes, no doubt - and you branded

14 it a joint criminal enterprise without a shred of evidence. And you only

15 talk about some kind of plan and intention of the Serbs. However, this

16 so-called Prosecution relies on a unique concept called joint criminal

17 enterprise, and that in itself proves that they cannot establish guilt.

18 There is absence of evidence and of any intent, and that is the only thing

19 that could compel one to resort to such a nebulous construction, joint

20 criminal enterprise. In other words, when there is proof and evidence of

21 something someone did and of intent, then an illegal Prosecution does not

22 have to think up some joint criminal enterprise. Then it uses evidence

23 concerning the actual deeds committed and the intent.

24 When a prosecutor does not have evidence and cannot establish

25 guilt, then they resort to that, and then in this way they dodge the

Page 32285

1 obligation which is called burden of proof, and that is part of any legal

2 judicial system.

3 This was conceived so that without proving guilt innocent people

4 can be charged. And of course that is sheer mutilation of justice,

5 nothing else. What it says there are empty words.

6 You explain in these indictments, in these charges, in these

7 alleged indictments, you speak of crimes that we did not commit. And you

8 explain it by intent that we never had. That is your concept.

9 I don't want to go into the question of Bosnia and Croatia again

10 where Serbia did not have any jurisdiction, but we did assist the Serbs.

11 Of course we did. And we would have been the scum of the earth had we not

12 helped them when their lives were in peril. And our greatest wish was to

13 establish peace and the greatest assistance was that in Serbia over all of

14 those ten years there was no discrimination on ethnic grounds against

15 anyone in any way.

16 When speaking of Kosovo, there is not a single shred of evidence

17 that any crime was committed. Not only on anyone's orders but also with

18 any kind of previous knowledge of the generals in command. And you have

19 indicted four generals. Not a single one of them issued any orders to

20 that effect. Not a single one of them had any knowledge about anything

21 that could have constituted a crime before these crimes actually happened.

22 You have accused the political leadership and the military leadership of

23 Serbia and Yugoslavia, and you have all the evidence showing that whatever

24 happened in Kosovo and Metohija was during the bombing, the day and night

25 bombing, and that the legal authorities brought to justice those who

Page 32286

1 committed crimes.

2 Even your witness here, General Vasiljevic, confirmed the details

3 about a meeting that I had with the top echelons of the military, of the

4 General Staff, and that I personally insisted that all perpetrators should

5 be arrested. And he even quoted me as saying that no one should have it

6 easy and that everyone, including General Ojdanic, who is sitting in this

7 prison, totally innocent, and then further on these four generals who you

8 have indicted, Lazarevic, Pavkovic, Djordjevic, and Lukic, everybody had

9 the same position. And even the leadership, the Supreme Command along the

10 vertical line acted by way of prevention, that is to say forbidding the

11 existence of paramilitary formations.

12 There are written reports and I have tendered them into evidence

13 -- or, rather, I shall tender them into evidence through the testimony of

14 witnesses. There are hundreds of reports of military courts, of military

15 prosecutors' offices regarding the perpetrators of various crimes. The

16 first reports start already at the end of March 1999 and then they move

17 on.

18 What else could the executive government have done and the

19 judiciary in any country as well as the chain of command but to

20 categorically insist on the Prosecution of all perpetrators of crimes and

21 to make sure through the reports it gets that this is being done? This is

22 what we did under the most difficult of circumstances, under conditions of

23 daily bombing. Some trials were completed and the perpetrators convicted

24 even before the bombing ended.

25 In these two years of presentation of evidence, you have not

Page 32287

1 presented a shred of evidence to the contrary. Throughout these two years

2 you have not presented a shred of evidence or a single testimony that

3 might indicate a link between a crime that was committed or a criminal

4 with the troop commanders, the generals you have indicted, or the

5 political leadership of Serbia, or me personally. On the contrary, you

6 have evidence that we did our utmost to prevent crimes, and if crimes were

7 committed - and this is possible even in peacetime let alone during

8 wartime and especially during ethnic conflicts - that they should be

9 prosecuted under the law. In Serbia in the Sabac District Court in 1993,

10 the first of these trials was held, and you have information to that

11 effect.

12 On the other side, you have all the evidence that we were the ones

13 who were the most persistent in achieving peace and who can claim the most

14 credit for achieving peace, that we saved millions of refugees on the

15 principle of non-discrimination, because tens of thousands of Muslim

16 refugees found refuge in Serbia. We freed French pilots and other

17 hostages. You can see what was done to achieve this through materials you

18 yourselves have. And all we could do was insist and beg and exert

19 pressure because we had no other powers. But we succeeded in this.

20 Please look at these interviews, because this is enough for you to

21 understand that all these charges make no sense.

22 On the other side, you can see what evidence you have on the role

23 of the Croatian political leadership in ethnic cleansing and the plan and

24 the achievement of the plan both before and after 1990. You even have

25 stenograms. We received some of these from you, and we were able to see

Page 32288

1 them here, from which you can see the fabrication of excuses for the

2 perpetration of crimes during Operations Flash and Storm. You have

3 evidence of the role of the Clinton administration in all this, and you

4 will receive more evidence. You have written evidence about those who

5 made all these decisions, because in each of the stenograms of the

6 so-called VONS, the Council of Defence and National Security, you can see

7 who was present there.

8 You also have evidence of crimes against the Serbs based on

9 decisions by the Muslim leadership. Kljuc testified here, a former member

10 of the Presidency of Bosnia and Herzegovina, and on the basis of the

11 stenogram I asked him about this because you can see that Izetbegovic knew

12 about the camps where people were illegally detained for years on end, and

13 you will be able to hear more testimony about this. You have everything

14 you need about the Croatian and the Muslim leaderships but not about the

15 leadership of Republika Srpska, the Republika Srpska Krajina, and Serbia.

16 You have evidence from the testimony of your own protected witness

17 who was an important political leader that what Milan Martic said to me

18 was correct, that is that in the Krajina, including in Knin itself, the

19 Croats who remained were being treated as equal citizens and that there is

20 absolutely no discrimination whatsoever.

21 I think that what I'm going to say now deserves more time, but I

22 will be very brief and simply just touch upon it. And this is the matter

23 of witnesses who reached a plea agreement with this so-called Prosecution,

24 and this is, I dare say, an example of the fabrication of false witnesses.

25 I think that this is an unprecedented event. When one of these

Page 32289

1 witnesses, when I asked him how he could have signed that in Srebrenica

2 7.000 Muslims were shot, he explained that his defence sent a letter in

3 which it promised not to challenge numbers. So you could have written

4 down 70.000. You could have written down whatever you wanted.

5 Before the Bosnia case, I put forward information my collaborators

6 succeeded in collecting which throws serious doubt on your constructions

7 about Srebrenica. In the meantime, we have heard the testimony of General

8 Morillon who testified here that Srebrenica was a trap for Mladic who

9 confirmed that in his opinion, and he knew Mladic well, Mladic could never

10 have issued such an order. And this is in accordance with what I believe.

11 I do not believe Mladic could have issued such an order. His honour would

12 never have allowed him to do such a dishonourable thing. But there will

13 be witnesses called to testify about all this.

14 And what I want to say is that I think it's in the interests of

15 both Serbs and Muslims that the truth about Srebrenica should come to

16 light rather than a false myth be created. Your fabrication of false

17 witnesses and the pressures of Paddy Ashdown on the leadership of

18 Republika Srpska, which is synchronised with what you are doing, this will

19 not be sufficient to perpetrate this double crime, this double crime which

20 insults both the dead and the living.

21 Everyone should be interested in establishing the truth about

22 Srebrenica so that those who perpetrated crimes might be punished and

23 those who are innocent might be released and set free of any charges or

24 doubts that they committed such a dishonourable thing.

25 You did not make use of Erdemovic to get information from him.

Page 32290












12 Blank page inserted to ensure the pagination between the English and

13 French transcripts correspond













Page 32291

1 You did not make use of any of the things you could have made use of to

2 establish the truth. I hope, I can only hope that some of the witnesses -

3 I am trying, through my collaborators, because I myself cannot do it, of

4 course - I hope they will throw more light on what happened there.

5 But to go back to this witness or two other witnesses whom you

6 have here who made plea agreements. You then had such protected

7 witnesses, because you had the public testimony of Miroslav Deronjic, and

8 his own mother should not speak to him in view of what he said he did,

9 that he killed a whole village after guaranteeing its security. First, he

10 guaranteed its security and then slaughtered the whole village. You

11 forgave him all of that only so that he would lie against Karadzic. And

12 you have Karadzic's order to the troops in Srebrenica in your hands to the

13 effect that they should look after the civilians and adhere to the Geneva

14 Conventions. This was sent in writing to the troops. And then someone

15 like Deronjic comes along to testify that Karadzic allegedly whispered in

16 his ear that they should all be killed. This does not make sense, and

17 it's not even worth discussing. No normal man could comprehend it,

18 especially when someone signs a document about the shooting of 7.000 men

19 because he's obliged not -- obliged not to challenge any figures.

20 Not to mention other matters that you made use of here. You made

21 use of my speech, you built it into the very foundation of your indictment

22 when you first opened your mouths in 2002, my speech in Gazimestan where I

23 allegedly fanned the flames of Serb nationalism. I am proud of that

24 speech to this day, because it is everything else, but it is certainly not

25 the awakening of some sort of negative atmosphere. On the contrary. But

Page 32292

1 you are not the only ones to participate in this. This has been repeated

2 by many Western politicians. There is almost no newspaper that has not

3 written about it. The lie has been repeated innumerable times, but not in

4 '89. To put it correctly, then, it's only ten years later that this

5 happened. I have no time to dwell on this, but I will take it as an

6 example of the way manipulations and lies are perpetrated.

7 Robin Cook, on the 28th of June, 1999, ten years later, says:

8 [In English] ... not to give a message of hope and reform.

9 Instead, he threatened force to deal with Yugoslavia's internal political

10 difficulties, doing so thereby launched his personal agenda of power and

11 ethnic hatred under the cloak of nationalism."

12 [Interpretation] I have here any number of quotations dating from

13 1999, 2000, 2001. Look at The Independent, the 1st of July, 2001:

14 "[In English] ... without his agenda, more than a million Serbs;

15 at the battle of Kosovo, 600, anniversary celebration, as he openly

16 threatens force to hold the six-republic federation together."

17 [Interpretation] You have quotations here from Time magazine, even

18 from The Economist. They are all quoting lies. I have now quoted from

19 The Independent, the 1st of July, 2001. Now I will quote The

20 Independent from the 29th of June, 1989. The same newspaper, it says:

21 "[In English] The President made not one aggressive reference to

22 Albanian counter-revolutionaries ..."

23 [Interpretation] Counter-revolution is a definition put forward by

24 the party leadership in 1981.

25 "[In English] ... of mutual tolerance, building a rich and

Page 32293

1 democratic society and ending the discord which he said led to Serbia's

2 defeat here by the Turks six centuries ago."

3 [Interpretation] And then The Independent quotes my words when

4 they report it:

5 "'[In English] There is no more appropriate place than this field

6 of Kosovo to say that accord and harmony in Serbia are vital to the

7 prosperity of the Serbs and of all other citizens living in Serbia

8 regardless of their nationality or religion,' he said. 'Mutual tolerance

9 and cooperation were also sine qua non for Yugoslavia.'"

10 [Interpretation] And then they quote me:

11 "[In English] Relations on the basis of equality among Yugoslav

12 peoples are a precondition for its existence for overcoming the crisis."

13 [Interpretation] Therefore, when they received orders that they

14 should lie, they did not even read their own newspapers from the time they

15 first reported. But I have no time to dwell on this now.

16 And the quotations you can find not all that easily, but you have

17 the Lexis Nexis programme on the BBC. You can find my original speech

18 which the BBC translated, and you can find it there even today, where it

19 says, for example, this is taken from the BBC:

20 "[In English] [Previous translation continues] ... only Serbs

21 living in it. Today, more than in the past, members of other peoples and

22 nationalities also live in it. This is not a disadvantage for Serbia. I

23 am truly convinced that this is an advantage. Citizens of different

24 nationalities, religions and race have been living together more and more

25 frequently and more and more successfully. Therefore, all people in

Page 32294

1 Serbia who live from their own work, honestly, respecting other people and

2 other nations, are in their own republic."

3 [Interpretation] There is no point in taking up my time, using up

4 my time on this. I just wanted to illustrate the scale to which the

5 abuses go, in particular the abuses in a procedure which pretends or

6 aspires to be a legal procedure, because intellectuals, authors, literary

7 critics, publicists, scientists believe it is immoral to take out of

8 context a few sentences. But you did not only take out of context pieces

9 -- sentences, but you took out of context parts of sentences in order to

10 create your constructs. But we will have time later. In any case, this

11 is -- it seems to me it is not something that is difficult to establish.

12 I am not citing that here for any other reason but to show in

13 which way lies are being put forward unscrupulously. You can look at this

14 policy, and I'm talking about national equality as the only principle on

15 which one can proceed further, and it has continuity over ten years. We

16 have the transcript of a party conference in 1998 here, and it's a

17 transcript where we have all the members sitting together from the ruling

18 party, which, amongst other things, the meeting discussed Kosovo. This

19 was not discussed for the newspaper, this was a discussion with the

20 political leadership, including all the ministers, members of government,

21 members of the parliament from the ruling party.

22 I would just like to read only a brief part, my conclusion. And I

23 say, as far as Kosovo is concerned, I'm saying who submitted the

24 introductory remarks, what the majority was, and then I say:

25 "Our policy to resolve the problem of Kosovo is to do it by

Page 32295

1 political means," so we're talking about 1998 now, the 10th of June, 1998.

2 "Our policy is to resolve the problem of Kosovo by political

3 means. We are approaching that settlement in view of our conviction and

4 our programme which implies the principle of national equality. We do not

5 want to damage or inflict damage on the Albanians, and we do not want

6 Albanians in Kosovo to be citizens of second class."

7 And then I speak about how many think that perhaps the majority of

8 Albanians are in favour, and I say:

9 "It is not true that all of them are for it. Perhaps the majority

10 is depending on the pressure exerted on them, what was explained to them,

11 how this explanation was given about their future perspectives and

12 everything else. We must discuss this and we must take this approach. We

13 must have a political resolution on the principles of national equality.

14 We must keep in mind that those who were manipulated in this way, these

15 are unhappy people who are manipulated with just like any poor people in

16 the world are, by the powerful, by the manipulators throughout the world

17 whose objective is to destabilise South-Eastern Europe where they

18 constantly need to have an alibi in order to keep the military forces of

19 the great powers there."

20 And then at the end I say Dialogue: "The dialogue which was

21 started is not reserved for the state committee and representatives of

22 Albanian political parties," and then I mention them, all those from the

23 state commission, I mention them individually. "The dialogue is not

24 reserved only for them and it is not only the Serb-Albanian dialogue but

25 it is the Serb-Albanian-Roma-Muslim-Bulgarian dialogue. This dialogue

Page 32296

1 should be present at all levels; in the municipality, in the local

2 commune, in the formal and informal sense, a formal and informal dialogue,

3 because people need to be mobilised to live."

4 So ten years of continuity in my commitment for a policy of

5 national equality which preserved half of the former Yugoslavia from

6 entering into any conflict or war throughout those ten years.

7 I'm speaking about how much this -- this whole thing has been

8 turned upside down. And that is why I said that this indictment

9 represents a sum of unscrupulous manipulations, lies, crippling of the law

10 and an unjust presentation of the history.

11 The individual acts of generals, officials, my own, by way of

12 command responsibility through which you could convict any innocent person

13 because they held a certain post, and now you're trying to bring these

14 generals here. These individual acts I cannot discuss because of a lack

15 of time, and first of all, they've already been challenged in the

16 testimony of your own witnesses and much more, in the biographies and

17 memoirs of participants, and also in scientific studies which were written

18 based on Western sources, documents, and so on. We will leave it up to

19 the witnesses to have the final word when they appear before you here.

20 I would just like to point out a paradoxical situation in which

21 you have brought yourself into by bowing down to the daily merciless

22 policy of the Clinton administration. Reality was falsified in the name

23 of a pragmatic political programme. All three indictments were issued

24 after 19 NATO countries carried out an open aggression against the

25 remaining part of Yugoslavia, Serbia and Montenegro, with banned weapons

Page 32297

1 implementing new forms of tyranny through high technology. Is there any

2 greater cynicism? The indictment for Croatia cites ethnic cleansing of

3 Croats, and this was conceived before the 1st of August, 1991, and lasted

4 until 1992. I must say that one has to be extremely arrogant to place

5 such a lie on paper. As is well known, this was a period of mass crimes

6 against Serbs, and the first major exodus of Serbs from Croatia. A

7 hundred and fifty thousand of them, precisely in this time period.

8 The Kosovo indictment was issued, and I am quoting, "because of

9 the expulsion of a substantial number of Albanian citizens from Kosovo."

10 Well, you saw what it says in Clark's book, but you will see many other

11 also more interesting things. You cannot cite one single village from

12 which someone was expelled while Kosovo was under the control of the Serb

13 state organs. And it's a fact that I'm not following --

14 JUDGE ROBINSON: Mr. Milosevic, bring your statement to an end in

15 three minutes.

16 THE ACCUSED: [Interpretation] Yes. I will do my best. If not in

17 three then four, but it will not be longer than that. I've had to skip

18 over a lot.

19 You're not even monitoring official statements by US and NATO

20 representatives who openly state today they needed these games around

21 Kosovo so that NATO could extend its activities beyond its borders. The

22 indictment against Bosnia and Herzegovina was issued for genocide.

23 Please, genocide against Croats and Muslims in Bosnia-Herzegovina, which

24 is also highly insolent when we know that the Belgrade precisely --

25 Belgrade was the political centre in these evil times. The only centre in

Page 32298

1 Yugoslavia during the Yugoslav crisis from which the policy of peace was

2 consistently conducted, the policy of national equality, thanks to which

3 there were no occurrences of discrimination and no occurrences of crimes,

4 and thanks to which throughout the entire decade an unchanged national

5 ethnic structure in Serbia was preserved.

6 I am aware, gentlemen, that it is illusory to look for logic in a

7 staged process. There were such cases before, the Dreyfuss case or the

8 Dimitrov case regarding the burning of the Reichstag. This process

9 exceeds those because of the depth of the tragic consequences that it

10 entails. I do not even wish to say anything on a personal note in this,

11 but I would like to mention the depth of the tragic consequences where the

12 universal legal order was thoroughly destroyed. Thanks to our past, there

13 were honourable authors who have carved the truth into history so that

14 mistakes would not be repeated and that the generations that come would

15 know what happened. In the true history of this era, this ad hoc justice

16 of yours will be placed or used as an illustration of monstrous events at

17 the changing from one century to another.

18 Gentlemen, you cannot imagine what a privilege it is, even in

19 these conditions that you have imposed on me, to have truth and justice as

20 my allies. I am sure you cannot even conceive this.

21 Thank you, Mr. Robinson. Unfortunately, I did not have the

22 opportunity to present everything that I wished to, but I believe that I

23 will be given this opportunity perhaps by other means. Thank you very

24 much.

25 JUDGE ROBINSON: Thank you, Mr. Milosevic. You are right, of

Page 32299

1 course, that you will be able to bring your evidence.

2 We're going to adjourn now for 20 minutes, and when we resume we

3 will have the discussion on procedural matters as indicated in the

4 Chamber's order of the 25th of August. We'll begin with the Prosecutor,

5 then the accused, then the amicus, and the subject matter will be the

6 content of the medical reports and the assignment of Defence counsel.

7 I urge parties to confine their submissions to those issues,

8 although the Chamber will hear other matters if it finds it appropriate.

9 We are adjourned.

10 --- Recess taken at 10.37 a.m.

11 --- On resuming at 11.00 a.m.

12 JUDGE ROBINSON: As indicated, we will have submissions now on the

13 two questions set out in our order of the 25th. Beginning first with the

14 Prosecutor. Madam Prosecutor.

15 MS. DEL PONTE: Mr. President, Your Honours, detailed argument

16 regarding the imposition of counsel have been made in a number of previous

17 Prosecution filings. The arguments made in these filings will be dealt

18 with in full by Mr. Nice. I do, however, wish to make a few general

19 introductory remarks.

20 This is not the first time that a Trial Chamber of this Tribunal

21 has had to consider the question of imposition of counsel. The Trial

22 Chambers in the cases of both Seselj and Blagojevic have previously ruled

23 that in certain circumstances, counsel may be imposed. The issue has also

24 arisen in the Rwanda Tribunal case of Barayagiza and in both the cases of

25 the accused Norman and Gbao before the Special Court of Sierra Leone. In

Page 32300

1 these International Tribunals counsel has been imposed for varying

2 reasons, including the obstructionism of the accused and the Tribunal's

3 right to protect the integrity of the proceedings.

4 National jurisdictions have also recognised the need in some

5 instances to impose counsel. In Israel with the defendant claiming to be

6 a political prisoner but also in the United Kingdom where in sexual

7 offence cases the accused is not entitled to run the totality of his own

8 defence in person. And the United States Supreme Court has observed in

9 the Martinez case, I quote: "[e]ven at the trial level, therefore, the

10 government's interest in ensuring the integrity and efficiency of the

11 trial at times outweighs the defendant's interest in acting as his own

12 lawyer."

13 And the imposition of counsel is entirely familiar to those

14 accustomed to the law and practice of the criminal courts in modern Serbia

15 and Montenegro, and indeed previously in the SFRY and FRY.

16 It is the duty of the Prosecutor and of the Chamber at this

17 Tribunal to ensure that the type of problem being faced can be dealt with

18 in the cases concerned, but as it will also no doubt be a question of

19 concern at other International Tribunals, including the International

20 Criminal Court, we owe a wider duty to developing international

21 jurisprudence it show how such problems can be dealt with. The parties,

22 including the accused, have a right to a fair and expeditious trial, and

23 the responsibility for ensuring a fair trial falls to the Trial Chamber.

24 We submit that the accused should be invited to allow his

25 associates to extend their present behind-the-scenes role of legal

Page 32301

1 advisors and to assist him with the presentation of his case simply in the

2 courtroom. Should the accused refuse to allow his associates to appear in

3 court, the accused will not have been denied the right to appoint counsel

4 of his own choosing. Rather, having been provided that right, he has

5 failed to exercise it.

6 This trial has required from the beginning the imposition of

7 counsel, and I have urged this position at every opportunity from the

8 start of the trial. The evolution of the trial in the past year has made

9 this need even more evident.

10 As mentioned before, the imposition of counsel is something which

11 is now becoming more familiar to the common law tradition. It has, on the

12 other hand, for a long time been familiar to the civil law tradition. The

13 civil law tradition takes the view that an accused lacks the requisite

14 distance and objectivity. The appointment of professional counsel allows

15 for the greater protection of both the accused's right and the wider

16 interests of justice.

17 This Tribunal draws on both the civil and common law traditions.

18 When faced with problems such as the present one before this Trial

19 Chamber, the Chamber has the privilege and duty of looking to both

20 traditions for solutions. When the solution is found, the Tribunal must

21 have or find the confidence to apply it irrespective of argument, even

22 public argument, however loud, extensive, and apparently well-informed.

23 It is we here who now know the problem. We here who face the

24 problem, and we here who have the duty to resolve the problem in the

25 greater interest of justice.

Page 32302

1 I recognise that in the earlier stages of this trial there was

2 little practical experience of this type of problem. The Chamber acted

3 with generosity towards the accused out of the best of intentions and in

4 so many ways to the best effect, but now the need for a more robust

5 approach has been revealed by the accused himself. The trial needs the

6 safeguard of imposed counsel.

7 Thank you very much for your attention.

8 JUDGE ROBINSON: Thank you, Madam Prosecutor.

9 Mr. Nice.

10 MR. NICE: Your Honour, this matter has been extensively argued in

11 written filings, of which there are public versions. I desire today to

12 make a general point and then to summarise our position with some

13 particulars on imposed counsel, to deal with the health issue, and then

14 with one or two other matters, with your leave.

15 The general point is this: Where a rational and reasonable person

16 finds himself pitted in discussion, argument, or even conflict against

17 someone who is irrational or unreasonable, there is sometimes an almost

18 irresistible temptation on the part of the reasonable one to think that

19 the other is going to behave reasonably, is going to respond to sense or

20 generosity. And that almost irresistible temptation derives from the

21 reasonable person's belief that there will be no chance of progress in the

22 matter at hand without movement by one party or the other and the

23 reasonable person's belief that the other party will never budge. Now,

24 this may be a process that this accused well understands, as it happens,

25 in the very matters into which we are inquiring, but also in this court.

Page 32303

1 And to pick up the last point made by the Prosecutor, this Bench,

2 rational, reasonable in the extreme, has, it may judge, faced some

3 obduracy and obstinacy by this accused over and over again, for example,

4 in time being allowed and, it may be thought, used in an ill-advised way

5 by him leading to his repeated demands or indeed, yesterday, insistence of

6 the Chamber for more time, and the Court always hoping for the best.

7 I would ask you to have that general proposition in mind as we

8 look at the problem we now face, and it is a real problem, given the

9 history of intervention -- not intervention, interruption of the timetable

10 by matters arguably without but arguably within the accused's own control,

11 namely, his health condition.

12 I turn, then, to some supplementary points about imposing counsel.

13 In domestic court systems, in the vast majority of all criminal

14 cases, those charged comply with the reasonable requirements of the court

15 system in which they find themselves. Do they do it because they respect

16 the law or the judges? If they are, in fact, serious offenders, criminals

17 of one kind or another, it's highly unlikely that they respect the law.

18 That's why they are, in fact, offenders. Nor is it likely that they

19 respect the judges, in truth. But they comply because they recognise that

20 once in the system, their own best interests, acquittal or reduced

21 sentence, will be served by compliance.

22 In that very, very small minority of cases in domestic courts and

23 in the rather larger portion of cases in this type of court where

24 non-compliance is a feature of a defendant's or accused's conduct, it is

25 because he does not see his own best interests as served at all by

Page 32304

1 compliance. His best interests, he judges, are elsewhere. And it is, of

2 course, our argument to this Court, as it has been on earlier occasions

3 and indeed in written submissions, that this accused's interests are

4 arguably, if not unarguably, his ability to address a different audience

5 with his account of events and his understanding of history.

6 For a court facing this problem, compliance will only, it may be

7 thought, be secured if even the accused recognises that his perception of

8 his best interests will be favoured by compliance. And so in this case,

9 without beating about the bush, unless the accused recognises that he will

10 lose his platform for whatever purpose he puts it unless he so conducts

11 his defence as to fit in with the requirements of this Court which has to

12 deliver justice and not to serve the non-forensic purposes of this

13 accused, then we will be in the same unfortunate position we have been in

14 for the last year and more.

15 For those who haven't read the public filings, in a sentence, our

16 arguments are that there is the power to impose counsel who would be able,

17 if necessary, to conduct the defence case without contact with or without

18 discussion with the accused, and that imposed counsel should be imposed

19 now and be ever-ready to take over the conduct of the defence immediately

20 or at a later stage, that that imposition is required now for all the

21 reasons with which we are familiar; and that once that has been done, then

22 the accused can be invited to make the reasonable decision, given the

23 health history and other matters, to conduct the preparation and

24 presentation of his case through lawyers. If he declines that invitation,

25 imposed counsel will be in a position to do the job for him.

Page 32305












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13 French transcripts correspond













Page 32306

1 Even if he declines the invitation so that imposed counsel takes

2 over the running of the Defence case, as we have proposed in a schedule to

3 our first filing, there are many ways and many stages in which and at

4 which the accused can be invited positively to contribute to the

5 preparation of witnesses -- not so much preparation, identification of

6 witnesses and their presentation in court by being allowed or invited to

7 contribute to the questioning that might otherwise be taken by imposed

8 counsel.

9 That's our proposal in a nutshell, and we say that the most

10 obvious candidate for imposed counsel should be one of or two of the amici

11 because of their familiarity with the case. We say that their proposal,

12 which would take them far more closely to the accused, is perilous in the

13 extreme for this reason: At the moment they retain, according to one of

14 their recent filings, the detachment of never having been instructed by

15 the accused. They may speak to him but they've never been instructed by

16 him, so that they do not have any relationship of intimacy with the

17 accused as a professional client that would enable him to put them in the

18 position of their being embarrassed and having to withdraw. They would

19 thus always be available to the Court to conduct the defence if things

20 started, yet again, to go wrong. Thus, in our submission, is their

21 proposal a dangerous one, one that should not be followed.

22 In our arguments, and as the Prosecutor has already foreshadowed,

23 we refer to recent developments in common law jurisdictions in relation to

24 sexual offenders, or alleged sexual offenders. I say straight away that

25 in our first filing, which, for reasons of timetable of the Court, was

Page 32307

1 prepared in somewhat short order, I missed that material. I was later

2 gratefully later reminded of it by Mr. Ruxton. I missed it. And we

3 worked out from first principles how imposed counsel could and should

4 operate in a case like this.

5 With a little more time at our disposal after complying with the

6 deadline for the first filing, we reviewed the present state of the law in

7 Scotland, in England and New South Wales and New Zealand, where the

8 practice is developing of imposing counsel in cases of the kind I've

9 described. And it was interesting and indeed heartening to discover that

10 the regimes that are being imposed by statute in those common law

11 countries match extremely closely the model we identified as suitable for

12 this case, working simply from first principles.

13 It may be worth going back to an earlier point in relation to the

14 sex offenders exception in common law countries for this reason: I

15 believe that one of the early stimuli for the change of the law in England

16 was that a sex offender, or alleged sex offender, cross-examined a victim

17 extensively and, as it was judged, not for the proper forensic purpose of

18 establishing his innocence if he could but to gratify himself by further

19 subjecting -- or by subjecting the victim to further punishment. He had

20 an interest outside the interest of the court, and it was because he

21 needed to be deprived of the ability to serve that interest through a

22 court hearing that the change in the law was ultimately made.

23 And so the case, although very different on its facts, of course,

24 than the case at hand, has -- the exception for sex cases is very

25 different for the case at hand, has in common with it the need to ensure

Page 32308

1 that accused persons cannot, through court proceedings, serve their own

2 improper and irrelevant purposes.

3 JUDGE ROBINSON: Did that arise frequently, Mr. Nice?

4 MR. NICE: No, I think --

5 JUDGE ROBINSON: Because normally sex offenders would be

6 represented by counsel who would carry out the cross-examination.

7 MR. NICE: Absolutely so. But on this particular case, if my

8 recollection is correct, it was the case of a sex offender appearing for

9 himself and subjecting the victim to a quite extravagant cross-examination

10 that lead to the inquiry being made by parliament and the change in the

11 law, because they realised that otherwise they didn't have the power to

12 deal with this problem.

13 There is much in the consultative documents for the Scottish

14 reform of the law that I think matches the arguments that we've made as

15 well as matching in the final practices that have been introduced and

16 those which we recommended.

17 Can I return again to a point that the Prosecutor has made. We

18 suggest in our filings that this problem is unknown or very rarely known

19 to the common law and that in this area the genius of the common law has

20 to some extent been wanting, and it is to the genius of the civil law that

21 we must turn. And with my remarks so far in mind, would the Court bear in

22 mind what it is that, as the Prosecutor reminded us, is the underlying

23 purpose of the civil law's requirement that counsel be imposed, for it's

24 twofold. It's both to achieve the objective of the court to have justice

25 done, and it is to bring distance and objectivity to the presentation of a

Page 32309

1 Defence.

2 And of course here, if we are right in our characterisation of the

3 accused's defence as being aimed at a different audience, there is the

4 real possibility that he will be missing points that he should be making

5 if looking at the problem in the proper way, and nobody in this court

6 wants any accused to be convicted when he should be acquitted, to be, in

7 the vernacular, over-convicted or over-sentenced. And so the imposition,

8 on the basis of the civil law approach, of counsel would in this case

9 serve those twin objectives that the Prosecutor has identified from her

10 experience and knowledge of the civil law.

11 Finally on this point, the accused -- or the trial of this

12 accused, facing the problem it does, must not be subject to any special

13 treatment simply because of the gravity of the charges against the accused

14 nor must there be any special leniency in the approach of the Chamber to

15 the problem simply because of the once elevated status of this accused.

16 A problem has been created and we'll turn to it more perhaps in

17 closed session when we look at one or two other issues, that demands

18 immediate resolution if we're not to run the risk of the timetable being

19 out of control, and I use the word "again." In our respectful submission,

20 the detailed proposals we make will work and are likely, if not very

21 likely, to ensure that the accused's future conduct will serve the best

22 interests of justice as well as of himself.

23 Before I turn to health and as a subsidiary point of what I've

24 said already and before the first witnesses are called, can I make one

25 observation about etiquette, court etiquette, because I have referred to

Page 32310

1 it on several occasions in our filings.

2 The Court, for the best of possible reasons, has tolerated what in

3 any other court would be quite unacceptable; that is to be told day after

4 day that it is an illegal court and that the Judges of it and the

5 Prosecutors are acting unlawfully. Were it to be the case that the

6 accused were to be allowed to call his own witnesses without correction as

7 to his manner of conduct in this court, we would be left, would we, with

8 the position where the accused would be using the incorrect form of

9 address to the Court, referring when it suited him to this illegal court

10 and yet expecting his witnesses, who would of course have to take the

11 solemn declaration, to treat the Court with the appropriate respect? It's

12 hard to conceive of a more unsatisfactory way of progressing. It's hard

13 to know how his witnesses would understand what was truly expected of

14 them. Can you really have a litigant being allowed to say to his witness,

15 "Witness, tell this illegal court what you know"?

16 When we see that the accused would wish people with either present

17 or past high office to come here to help you, can we really expect that

18 they would if they know that that is how they're going to be dealt with?

19 And so etiquette is not a trivial matter, in our respectful

20 submission, and it's something that needs to be dealt with.

21 The next issue is health, and although there's been some opening

22 of the health issues, it may be at the moment that the Chamber would

23 prefer us to go into private session to deal with that.

24 JUDGE KWON: Before going on, Mr. Nice, if you could elaborate on

25 the feasibility that an imposed counsel can start his conduct of

Page 32311

1 examination immediately, without any adjournment.

2 MR. NICE: Yes. I've -- I've dealt with that in the filings and

3 I'm grateful for the opportunity of repeating our position.

4 It may be urged that if counsel is imposed, he or she, whether an

5 existing amicus or a newly imposed counsel, could not run the Defence case

6 if the accused declines to cooperate because he or she could not be

7 prepared. The answer to that comes in two parts.

8 First, imposed counsel in the circumstances of this case would not

9 be expected and should not be instructed on the basis of and should not be

10 allowed to contemplate conducting a full investigation or any extensive

11 further investigation into the defence case in order to run it, because,

12 A, the position we find ourselves in is largely, if not wholly, of the

13 accused's own creation; and B, because there is an enormous amount of

14 material already and easily available to any counsel, however newly

15 imposed, that would enable him or her to identify and to call the

16 witnesses very quickly but, of course, not immediately.

17 My proposal, and this is the second part of the answer to Your

18 Honour's question, is this: Were the accused absolutely to refuse to

19 cooperate in any way and were the Chamber to have decided to impose

20 counsel, we already have a list of some 70 witnesses that the accused

21 wishes to call, he having, although the order has changed on a regular

22 basis, ordered the first -- I think the latest list is 12 but in fact it's

23 been up from time to time to figures rather more than that. And those,

24 the pro se legal officer assisting him, will know of the logistical

25 arrangements to bring those witnesses here. We know from the 65 ter

Page 32312

1 summaries in short order what the witnesses are supposed to deal with and

2 it would always be possible, possibly subject to privilege but that will

3 be for detailed consideration, to obtain what notes exist of what the

4 witness is going to be talking about. So the Chamber itself could find, I

5 have no doubt, the power to call witnesses from that list while imposed

6 counsel was being identified and instructed, could get them to give their

7 evidence in the way that witnesses in this court used to give evidence in

8 the earlier days of these proceedings, in the narrative form with

9 questions coming later, and the Chamber could, as I've suggested in our

10 filing, at the end of its examination of the witness, invite the accused

11 to identify topics that haven't been covered that should have been covered

12 to make sure that the evidence he would want from that witness would be

13 before you.

14 Those first witnesses, the witnesses on his present list, at three

15 days a week would probably take us nearly to Christmas. And in that

16 period of time, identified, retained, appointed counsel, imposed counsel,

17 could be becoming familiar with the case. We know from recent experience

18 that with the records available, reading into this case to become familiar

19 with it is, of course, a heavy task but not a limitless one.

20 So that's our proposal. And to reach that conclusion - and I'm

21 very grateful for being able to think about this and address it - to reach

22 that conclusion, as the Chamber might have to do, which would be a strong

23 and bold decision, would be simply to reflect that the court's authority

24 has been flouted, as we will explore, and the accused has shown himself

25 willing to decline to do what the Court wants, and it's in the face of

Page 32313

1 that that the Court would have to be saying to itself, "Yes, getting this

2 case concluded in the reasonable time we have allowed, by next October, is

3 something that we can accomplish, and we can accomplish it with these

4 early witnesses by dealing with them in this way, calling them ourselves,

5 giving the accused the opportunity to fill in the questions we may have

6 missed."

7 JUDGE KWON: One more query. If counsel is to be imposed in one

8 way or another, during the interim period until he or she can take over

9 the case in full, what kind of danger would there be if the Chamber allows

10 the accused to go on without being represented until that -- until -- as

11 far as he can?

12 MR. NICE: The real danger would appear to be -- there are several

13 dangers but the principal danger would be that he would still be preparing

14 the witnesses himself and -- we are venturing into something that is

15 probably best dealt with in private session, but taking it shortly, the

16 risk is that we would find ourselves back in the position we were in where

17 the health condition or apparent health condition of the accused simply

18 leads to weeks and months of downtime of the court.

19 There are other risks associated with his preparation and

20 presentation of witnesses. I've touched on the matter of etiquette, but

21 the major risk of doing that, and it's not a risk, it's almost a certainty

22 on the material we have, is that the timetable will not work at all.

23 JUDGE KWON: Thank you.

24 [Trial Chamber confers]

25 JUDGE ROBINSON: Mr. Nice, the Chamber was consulting on your

Page 32314

1 request for a private session to discuss certain matters. Would you like

2 to explain why you think there should be a private session?

3 MR. NICE: Only out of respect for the privacy that is associated

4 with medical reports. If the Chamber is happy for me to discuss all those

5 medical reports fully in public, I will do so.

6 JUDGE ROBINSON: I'm going to inquire from the other parties, of

7 course, but as I indicated to the accused when we met in July, the

8 jurisprudence of the Tribunal is that such material is confidential except

9 when it is required for trial purposes in the public interest. The health

10 of the accused is intimately tied up with the pace of the trial which

11 itself is linked to the issue of expeditiousness, and expeditiousness is a

12 requirement of a fair trial. I see it as an issue that is essentially

13 tied to the fairness of the trial ultimately, but I'd like to hear first

14 from the amicus.

15 Mr. Kay.

16 MR. KAY: Your Honour, would you like us to deal with the issue of

17 privacy at this stage rather than the full argument?

18 JUDGE ROBINSON: Yes, just the issue of privacy, yes.

19 MR. KAY: It very much depends upon what the accused would submit

20 on the matter. Sometimes an accused is happy enough for such issues to be

21 public so that there is a full understanding of what the argument is

22 about, particularly if he has his own view on the matter.

23 Personal details should be avoided being put into the public

24 domain, and by that I mean specifics of medical analyses, and I think we

25 can all understand what I mean about that. But general issues relating to

Page 32315

1 health when they arise in this manner would be able to be discussed so

2 that the public or -- we're not doing this really for the benefit of the

3 public, we're doing this for the benefit of legal argument in the ordinary

4 course of the -- of the trial and so that there is an understanding what

5 is going on in this trial at this stage.

6 So if argument was able to be without specific references to

7 personal medical details, which I'm sure that the Court would understand,

8 then that -- that can take place in public, in our submission, but it must

9 be dealt with in general terms rather than anything that might cause

10 embarrassment or anything that might be too revealing. In many respects,

11 it's how far the Trial Chamber wants to go, or any of the parties wants to

12 go on the issue.

13 JUDGE ROBINSON: Thank you. Mr. Milosevic, on this issue. Do you

14 wish to say anything?

15 THE ACCUSED: [Interpretation] In connection with my personal

16 health issues to be discussed in a public or private session, is that what

17 you're asking me?


19 THE ACCUSED: [Interpretation] I told you last time when you asked

20 this that I feel that issues of health should be discussed in private

21 session. These are my own personal private matters. They do not concern

22 the public. I think that these are elementary rules.

23 JUDGE ROBINSON: Thank you. The Chamber will consult.

24 [Trial Chamber confers]

25 JUDGE ROBINSON: Mr. Nice, yes. On this issue?

Page 32316

1 MR. NICE: We would, of course, favour the presentation of this

2 material in public to the extent necessary to explain part of the

3 reasoning of our arguments on imposed counsel. We have no desire to go

4 into matters in detail, and indeed the conclusion of the doctors is all we

5 need.

6 JUDGE ROBINSON: Thank you. Yes. The Chamber believes that

7 Mr. Kay struck the right balance in his presentation on this matter.

8 We will have the discussion in public in general terms, and if a

9 matter comes up that is particularly sensitive, then that can be brought

10 to the Chamber's attention and we will move into private session.

11 MR. NICE: Your Honour, thank you.

12 Before I move on to the health issue, and going back to Your

13 Honour's earlier question about the introduction of imposed counsel for

14 sexual offence cases, I am very grateful to Ms. Graham for finding the

15 reference that will most help you. It's actually in the New South Wales

16 Law Reform Commission papers in the book of authorities at pages 20 and

17 21, where they are looking at the then-British experience, or the English

18 experience, and at paragraph 2.26 the commission's report sets out how the

19 England -- or the English -- the United Kingdom Home Office report on the

20 same topic followed two prominent sexual assault cases in which defendants

21 used the opportunity of cross-examination in person to humiliate and

22 intimidate their victims, and it sets out the details of what happened at

23 that paragraph.

24 JUDGE ROBINSON: Thank you, Mr. Nice.

25 MR. NICE: On the health issue, I need, I think, only remind the

Page 32317

1 Court of one fact and take you to short passages in summary from the four

2 latest reports.

3 The Chamber will recall that in discussions of the time required

4 for preparation of his defence, the accused was always unhappy with the

5 time allowed, reasonable though it undoubtedly was, and required to be

6 allowed until September. In the event, the manifestation of his health

7 problem has brought us to September.

8 The latest reports with which we need be concerned start with the

9 report of Dr. Tavernier, dated the 24th of July of 2004. On the third

10 page of that report, following a detailed examination and analysis to

11 which I need not refer, he picked up on an earlier suggestion that the

12 accused was not following the drug regime prescribed in his best interests

13 and in order to enable him to be fit for trial with this observation at

14 the end of the paragraph:

15 "All these observations suggest that the accused is not taking his

16 medication in a strict manner."

17 Further down that page, the doctor expressed the opinion that

18 based upon the presented clinical condition, the then-lifestyle and poor

19 adherence to proposed therapeutic plan, the accused was not fit, in the

20 opinion of Dr. Tavernier, to represent himself. And he went on to say

21 that he shared the opinion of his colleague, Dr. Dijkman, that the

22 resumption of the trial under the then-conditions would result in a very

23 early -- an early occurrence of very high blood pressure with the

24 inability of the accused to continue to work, which would have a major

25 impact on the trial schedule.

Page 32318

1 The next report in time comes from the said Dr. Dijkman, is dated

2 the 18th of August, and again on the second page, following careful

3 examination of -- a record of examination of the accused, it says this:

4 "We may conclude that there must be serious doubt over the

5 patient's adherence to this therapy. From the clinical point of view, we

6 have suspected this for some time given the repeated occurrences of sinus

7 tachycardia, which is odd with the continuous and correct taking of a

8 particular drug that he identifies."

9 But he then goes on, and I think this is the first time this is

10 clear from the reports, to identify something else. He says:

11 "In addition," and he then identifies another drug, "another drug

12 was repeatedly found in the blood, which is odd given the patient's

13 refusals to take benzodiazepines from the United Nations unit's staff."

14 It goes on to suggest that the accused must have obtained and be taking

15 drugs other than those prescribed in some other way.

16 Dr. Dijkman ended this paragraph by saying that, in his opinion,

17 the patient is not fit to defend himself.

18 "Should the trial be continued in the old way, there will be

19 constant interruptions which will delay the progress of the trial

20 considerably."

21 Dr. Tavernier's report of the 27th of August, commenting on Dr.

22 Dijkman's report, said at page 2, paragraph 1, subconclusion 2, there is

23 significant doubt about the therapy compliance of the accused, and at the

24 end of that paragraph, dealing with the drug taken that was not being

25 prescribed, said:

Page 32319

1 "Since this drug is not on his medication list in his medical

2 file, this means that Mr. Milosevic must obtain this drug in another way.

3 This illustrates the unwillingness of Mr. Milosevic to adhere to a

4 therapeutic plan because administration of this kind of drug in a

5 controlled was already suggested but refused."

6 The doctor then deals with one of the possible complications of

7 detail that we needn't go into.

8 The last report comes from Dr. Dijkman on the 26th of August, I

9 think, specifically in response to an order of the Trial Chamber, and he

10 sets out in detail - it's a longer report - why it is and the basis upon

11 which he's able to say that there has been a refusal of the accused to

12 comply with the prescribed medical regime and, indeed, why it is clear - I

13 needn't go into the detail of this - that he is taking some other drug.

14 And on page 3, at the end of the large paragraph on page 3 dealing

15 with the other drug that has been taken without prescription and without

16 supervision by the Detention Unit staff, he says this -- well, perhaps one

17 can pick it up two-thirds of the way down the paragraph:

18 "The measurements taken by a colleague," he names the colleague,"

19 proves the opposite thus indicating that Mr. Milosevic is providing us

20 with incorrect information about his medication intake, which leads me to

21 doubt also his statements that he is taking the anti-hypertensive

22 medication correctly."

23 At the end of that paragraph, he says:

24 "The medication is not at all expected to cause a rise in blood

25 pressure. On the contrary. It would be expected indirectly to lower it

Page 32320












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13 French transcripts correspond













Page 32321

1 when this medication has achieved a reduction in stress. This was the

2 reason why I offered it to him in the past. I am at a loss to explain why

3 he has refused it in the past but has now taken it."

4 The drug that was being taken without supervision and prescription

5 would have been of benefit if taken in a controlled way, but apparently

6 was not being so taken. At times -- well, it was not taken in that way.

7 And the overall and unanimous opinion of the experts is that the accused

8 is not fit to conduct the trial himself, that he has not been taking the

9 drugs in the manner prescribed and apparently supervised for no reason

10 that is advanced by the doctors but for reasons that can be all too

11 readily understood by those of us who have seen months of court time

12 wasted; and that in combination with that conduct, he has been obtaining

13 for his own purposes other drugs, no doubt to help himself.

14 This material makes it overwhelmingly clear that the accused will

15 do whatever is necessary to serve his own purposes, in our respectful

16 submission, and that the Court can be quite satisfied that this material,

17 for two reasons, shows that counsel must be imposed; the first being the

18 underlying health condition itself, which will be aggravated to the point

19 of intolerability if he is allowed to continue seeing, preparing

20 witnesses, which is clear on the evidence to be the hard work, but also

21 because the Court might be quite satisfied he has been manipulating this

22 Tribunal.

23 Your Honour, the only other points I would make, I've been some

24 time --

25 JUDGE KWON: Mr. Nice, I think I need some clarification on the

Page 32322

1 issue of non-adherence of the accused to the therapeutic plans. It seems

2 to me that both doctors based their conclusion -- their conclusion that

3 he's not fit to represent himself on the very fact that he is not been

4 adhering to the therapeutic plans. Well, then, suppose from now, if he

5 adheres to the therapeutic plan in full, then he will be fit to represent

6 himself. I don't think so. So his non-adherence can be a basis for us to

7 continue while he is sick, which he brought himself, but I don't think

8 it's a sufficient -- can be a sufficient reason to impose a counsel while

9 he's healthy to represent himself.

10 Can I hear your observation on this?

11 MR. NICE: Well, several points. The first point is the doctors

12 appear to be of the view that it's his underlying medical condition that

13 makes him unfit, and that, of course, we rely on and that's in itself is

14 sufficient.

15 To that, the non-adherence is a feature of obstructionism by this

16 accused, to use the words I think used in the Seselj case, that taken

17 together with other aspects of his behaviour and other ways in which it's

18 clear that he's using this Court for purposes that are not properly

19 forensic, show that the civil law's approach to the imposition of counsel

20 is right. You have a man who in one, two, or more ways is acting

21 unwisely, improperly, and for personal reasons outside those of the

22 furtherance of justice, and, says the civil law, you need to protect that

23 man and to stop him doing what he's doing. You need to ensure that his

24 proper defence is advanced. You need to ensure that the administration of

25 justice is not impeded.

Page 32323

1 And so Your Honour's proposition that merely not to take his

2 prescribed medicines correctly, even to do so with bad intent, is not in

3 itself enough to impose counsel is, if I may respectfully say so, slightly

4 off the point, because imposition of counsel comes in this case and at

5 this stage for a range of reasons of which this is one component part, but

6 it's one component part of a mix of reasons that relate to his conduct and

7 is separate from his underlying ill health which freestanding on its own

8 would justify the imposition of counsel because he's simply not actually

9 physically strong enough and fit enough to prepare and present the case

10 himself.

11 JUDGE ROBINSON: What are the other reasons? What are the other

12 reasons? You say it's just one component part of a mix of reasons.

13 MR. NICE: Yes. This accused has shown himself, and we've seen it

14 in the recent speech that he's presented, concerned to take - and we would

15 say to waste - time, valuable, precious time on matters that are not at

16 the heart of this case, indeed completely away from what this case is

17 about. He will continue to do that because he has another objective to

18 serve, both in his -- to some degree in his identification witnesses but

19 certainly in the use he seeks to make of witnesses. And we've seen in the

20 cross-examination exercises how difficult it was for the Court to bring

21 him to matters of relevance. Time after time he would be allowed two

22 hours and he would waste one hour and three-quarters, in our respectful

23 submission, on what was irrelevant, and try hard as His Honour Judge May

24 did to bring him to matters of relevance, it didn't work.

25 Now, the same accused represented by counsel, whether imposed or

Page 32324

1 his own, can be sure to have the correct matters identified and laid

2 before you and the irrelevant omitted. So that's a second way in which it

3 is appropriate to impose counsel.

4 And a third way, which I have already touched on, is, frankly,

5 etiquette. The time has come when this Court is entitled to be approached

6 on behalf of this accused's defence appropriately, and it should not, in

7 our respectful submission, any longer be tolerating the manner in which

8 this case is being presented.

9 And can I come back, however, in light of Your Honour's -- His

10 Honour Judge Kwon's question, to what I suspect may be an underlying

11 thought, and I hope Your Honour won't mind if I say temptation, because

12 Your Honour will remember that my first point, which was a general point,

13 was how the reasonable person reacts to the unreasonable and the rational

14 to the irrational by being tempted time and again to expect the best of

15 the other when all the experience is actually to the contrary. And I

16 venture to suggest that Your Honour's question may have allowed within it

17 this thought: Maybe the accused will now buckle down and behave. That

18 would be a perilous approach to take for, in our submission, he has shown

19 himself quite uninterested in bringing this case to a just conclusion, and

20 there is no reason to believe that he will not take whatever course is

21 open to him when it is necessary to have his way.

22 And so in answer to His Honour Judge Robinson's question, there

23 are at least three separate reasons of which non-adherence to the drug

24 regime is a component part which would justify the imposition of counsel.

25 The health condition on its own also justifies it.

Page 32325

1 JUDGE ROBINSON: Thank you.

2 MR. NICE: Your Honour, I know that time is valuable but this is a

3 very important topic. I have identified in the pleadings, and I don't

4 desire to go through it in detail now, one way in which this accused has

5 shown absolute defiance of this Court. He produced a list of whatever it

6 was, 1.300 witnesses and was required to name all but whatever might be

7 the very small minority to both the Court -- the small minority that will

8 require special protection, to the Court and to the Prosecution. He told

9 you at the last hearing he would give us as many names, basically, as he

10 thought we deserved.

11 We have drawn to your attention in a couple of pleadings that he

12 has refused to comply with the order although the names were there because

13 they were provided to the Chamber, and it was two days ago, I think, that

14 we got not the majority of the names but -- 600? About. About 900 of

15 them.


17 MR. NICE: About 900 in total.


19 MR. NICE: Without apology, without explanation. He was

20 instructed to provide all exhibits. Now, there may be practical problems

21 with exhibits. The first -- that was months ago. The first day we

22 received exhibits, all in B/C/S, was a couple days ago.

23 These -- one can readily understand an instinct to say, oh, let

24 bygones be bygones, let's not look at that; but we have to press the

25 Chamber in making this decision now, realising that if a decision isn't

Page 32326

1 made now it will always be more difficult later, to recognise what is

2 quite apparent from this accused's conduct of this case, namely that he

3 will to the limited -- or to the degree allowed, have it his way, act in

4 defiance of the Court and diminish the standing of this court which has

5 and merits the very substantial of a court, of a lawful court doing its

6 best to deliver justice in a difficult case to this particular accused.

7 Your Honour, I won't say anything more about other matters save

8 just to identify things which I think are on your agenda generally. One

9 is whether the accused should give evidence himself, which of course he

10 will have to do with the solemn declaration, and when. And to draw to

11 your attention that, as I understand it, certainly one of the quotations

12 attributed to a Western leader in the speech of the accused was, as it

13 sounded when I heard it, a complete misquotation, and I will provide you

14 with chapter and verse for correction. And unless I'm in error, unless

15 those informing me are in error, I will be asking the accused personally

16 or through counsel, in due course, to correct an error. There may be

17 other examples of straight misquotations that we've heard in the last day,

18 and they should not be allowed to stand.

19 JUDGE ROBINSON: If you have that, bring it to the Court's

20 attention, we will bring it to the attention of the accused, and we expect

21 him to take the appropriate action.

22 Mr. Milosevic, do you have submissions on this matter?

23 THE ACCUSED: [Interpretation] First of all, there is no need for

24 anyone to make me correct quotations. If it's given wrongly, it's

25 sufficient just to draw my attention to it, and of course I will do that

Page 32327

1 myself. So I am convinced that I did not provide any wrong or

2 misquotations, but if that is the case, I will very easily correct that.

3 That is not a problem.

4 But as far as the topic is concerned that we're discussing,

5 Mr. Nice has talked here about motives because of which I'm speaking here.

6 There is no mystery there. I have emphasised this on several occasions.

7 I will always speak here any time you make it possible for me because I'm

8 using the opportunity to tell the truth. That is my only motive.

9 I assume that the truth should be also a motive and objective or

10 purpose of any procedure or any debate or any academic discussion, even.

11 Therefore, I don't see why my motive to speak the truth would be in

12 collision with any honourable motive of any side, whatever it is, if it

13 should turn out that that other side wishes to learn the truth and wishes

14 to find out the truth in an as thorough way as possible in the interest

15 of justice.

16 Mr. Nice speaks about rules. Well, your rules are not such that I

17 have no right to a defence. All international regulations, all treaties

18 and pacts on human rights give me the right to defend myself. In any

19 case, the late Judge May himself, when this was discussed the last time,

20 stressed in particular, and I remember that very well, that my right to

21 defence must not be questioned.

22 We have an absurd situation here. I'm now talking about the

23 explanations that we have heard from Mr. Nice. I was capable of

24 questioning witnesses of the other side, the hostile side, which it, in

25 the best desire to bring in as many as possible strong witnesses against

Page 32328

1 me, did so. So I was able to question witnesses of the other side. And

2 now suddenly I'm not able to question my own witnesses. And there is this

3 absurd thing here that is cited by Mr. Nice --

4 JUDGE ROBINSON: Please continue. We adjourn at a quarter past,

5 15 minutes after.

6 THE ACCUSED: [Interpretation] Very well. Speaks about the danger

7 - and I don't know how this can have any logic at all - of the danger of

8 mistreating or abusing witnesses if I question them. I did not mistreat

9 any witnesses of theirs. I did not mistreat any witness from the other

10 side. And how can then it be conceivable at all that there be a danger

11 now that I will mistreat witnesses that I have called myself? For

12 goodness sake, is there any logic in that even for any one to consider

13 of any age? It's absurd that I would be in the situation of mistreating

14 my own witnesses.

15 Mr. Nice said - I even wrote it down - about the danger of

16 preparing my own witnesses. I understand if this were a danger in order

17 to knock down this construct that they have built, but that is precisely

18 what I want to do. It is my right to do so. How can anyone who is in

19 favour of law and justice against me preparing my own witnesses?

20 I -- as far as my witnesses are concerned, in view of the short

21 time that you have given me and in view of the fact that I will be working

22 three days a week, will be able to spend one day at the most with an

23 individual witness. And you know very well that the other side prepared

24 their witnesses for a week or two or more than that with their entire

25 machinery, and this was even in the case of witnesses that they chose not

Page 32329

1 to call to testify. I will have to perhaps even prepare two witnesses in

2 one day. Therefore, the rational use of time is a relative question,

3 whether this is the most rational thing or not. This is something that

4 can be put as a question. But I will be using my time much more

5 rationally than the other side which used much more time in the

6 preparation of their witnesses. This is something that is obvious.

7 Therefore, I think that the whole idea presented by Mr. Nice is to

8 actually shut me up in the process of stating the truth. That's what it's

9 about. He says that I inflicted my health problem on myself. I have

10 suffered from hypertension for ten years now.

11 Second, it must be clear to everyone that I have been given

12 hundreds of thousands of pages of documents here, different papers, as

13 part of what the other side was doing and not given an adequate amount of

14 time to read them all. Of course this calls for additional efforts. Of

15 course this creates fatigue, and of course this then reflects on higher

16 blood pressure as a result of the fatigue, and this applies in any kind of

17 work; less sleep, a large number of hours spent reading, reviewing,

18 preparing. So it is just not true. Quite to the contrary. Their

19 dynamics and the lack of time is something that is responsible for that.

20 The other claim is that I am not responsible in taking my

21 medication. I will not go into the methods, how this is measured and

22 calculated, but you probably don't know the practice in your own Detention

23 Unit. I take my medication in the presence of guards. I'm given them. I

24 take them in the presence of the guard, and the guard writes down in the

25 book the exact time when I ingested those medicines. Therefore, this

Page 32330

1 assumption can be an assumption. Anyone can assume whatever they want,

2 but this assumption is groundless.

3 It is true that I had a discussion - this was over a year ago -

4 with the doctors about certain medicines which had some bi-effects which

5 actually caused fatigue, drowsiness, and which prevented me from working.

6 But this medication that I'm talking, I didn't take this medicine because

7 it didn't agree with me and put it to the side. I told the doctor, "I

8 cannot take this medicine because it interferes with my normal

9 functioning." I spoke with my own doctor by telephone, and we coordinated

10 the -- a different regime of medication, and this was approved by this

11 doctor here, and it was suggested by the doctor who has been treating me

12 for more than ten years now. And I have told you about the way that I

13 take these medicines, about the procedure under which I take the

14 medication.

15 I believe that other factors are at issue here. We're talking

16 about fatigue, that factor, because if I am taking the same medicines the

17 whole time and then over the past month or so my blood pressure has

18 normalised, that is because I have had a rest. I gave precedence to a

19 rest -- a rest for a period when I saw fit to do that in order to

20 stabilise my blood pressure so that I could be physically able to

21 function. I did that at the expense of what I needed to do at that time,

22 but I assume that it was within human bounds and that it's a minimal rest

23 that I needed to give myself. And this was a crucial factor in

24 contributing to me normalising my blood pressure.

25 So if we are taking care to have a regular, normal pace of

Page 32331

1 affairs, something that can be maintained, then absolutely there can be no

2 question of it not being possible for me to do what I need to do. It

3 would be very unfair, in the same health conditions, for you to assess

4 that I could go through these past two years of cross-examination of

5 witnesses of the other side and now that it's my time to examine my own

6 witnesses, the other side suddenly panics that I'm not preparing

7 witnesses, that I should not be working with them, that I should not be

8 questioning them. Actually, this seems a panic caused by the lack of

9 desire for the truth to be heard, and this is something that is evident to

10 anybody who is watching.

11 There are no other reasons for that other than those which were in

12 force at the time when the late Judge May was the Presiding Judge, who

13 said at the time that my right to defend myself cannot be infringed upon.

14 Therefore, I really cannot accept at all that you do not give me the right

15 and the opportunity to voice the truth, and I find it unacceptable to be

16 prevented from having witnesses come, witnesses that I have called, and to

17 have them testify about what they are supposed to testify about, to

18 testify for reasons that they are called to testify for.

19 As far as I know, this number of 900 witnesses that Mr. Nice

20 talked about, as far as I know, this list was given over a month ago

21 containing over 1.100 names. So this is the first time that I'm hearing

22 about it. As far as what was said when this was given, I will accept

23 that. But as far as I know, to my best recollection, you were provided

24 with this list certainly over a month ago.

25 JUDGE ROBINSON: Mr. Milosevic, we are going to take a break now

Page 32332

1 for 20 minutes.

2 THE ACCUSED: [Interpretation] I would just like to clarify one

3 thing before we take this break. Each person can fall ill, especially

4 someone who suffers from chronic cardiovascular problems. I'm hearing for

5 the first time that someone, because they can possibly fall ill, should be

6 denied their right to defence, which is guaranteed by all conventions on

7 human rights, rather than if that person is ill not holding a sitting on

8 that day, one day, two days, or something like that for as long as it's

9 needed. But I've never heard that someone, because they are ill and they

10 are in that situation because of the other side that is asking that, that

11 they are then denied the right to their defence for these reasons.

12 This has nothing to do with any sense of logic or morale or law,

13 and it is simply out of the question.

14 JUDGE ROBINSON: We will take the adjournment now for 20 minutes.

15 --- Recess taken at 12.19 p.m.

16 --- On resuming at 12.45 p.m.

17 JUDGE ROBINSON: Yes, Mr. Milosevic.

18 THE ACCUSED: [Interpretation] I would just like to add I also

19 think that the explanation of Mr. Nice is quite inappropriate regarding

20 the recognition of the Tribunal. I consider the Tribunal to be illegal.

21 This is not in dispute as far as I'm concerned. But I did state political

22 and legal reasons for my views. I even quoted the book of the former

23 president of the International Court of Justice who believes the two

24 resolutions under which this court was founded are controversial from the

25 point of view of the United Nations. I do have the right to state

Page 32333

1 political and legal reasons in my assessment of whether this Tribunal is

2 legal or not, especially when I pointed out to the way in which we can get

3 the question of -- on its legality, through the institutions which are

4 authorised within the UN system to decide on that. So it's not logical

5 that I'm insulting anyone in this way, and I don't believe that I even, as

6 far as one witness is concerned, whether there were false witnesses and

7 murderers, I don't believe that I insulted any one of those witnesses

8 during my questioning. But I am stating political and legal arguments

9 which I believe are valid in relation to the illegality of this Tribunal,

10 and this is my right and I do not have any intention of being deprived of

11 that right just because Mr. Nice or anyone else does not like that.

12 Therefore, I request to be allowed that witnesses come regularly,

13 that I am allowed to question them, and that I have the rights in relation

14 to that, the same rights that the other side had when they questioned

15 their witnesses. I ask for no more or no less than that. I actually have

16 less because my conditions for preparation are not as extensive, but that

17 is my problem.

18 In any event, I request to be allowed that witnesses be permitted

19 to come. They are coming here at my invitation and not at the invitation

20 of somebody that they do not know at all.

21 And I must say that I do not believe that there is any lawyer who

22 holds to the legal codes, who sticks to essential moral norms who would

23 agree to be imposed as an attorney to somebody who does not accept that.

24 I don't believe that there is anyone like that, but probably everything is

25 possible.

Page 32334

1 So I request to be permitted to be able to question my witnesses.

2 And Mr. Nice, who obviously wished that he himself questions my witnesses

3 personally or through an intermediary, has the same right to

4 cross-examination that I had when he was bringing his witnesses. I did

5 not interfere in his choice of witnesses.

6 JUDGE KWON: If I can say this to Mr. Milosevic once again, I

7 remember I once mentioned this earlier: Mr. Milosevic, you are saying

8 that you cannot appoint a counsel because you don't recognise this

9 Tribunal. However, in my opinion, recognition of the Tribunal and having

10 the assistance of counsel are two different matters. In fact, your

11 actions have reflected this already. You nominated, by a document signed

12 by yourself, the three legal associates from Belgrade, and during the

13 presentation of the Prosecution's case they have been assisting you, inter

14 alia, by gathering the information and the evidence and preparing the

15 questions you have put to the witness. In essence, I think they have been

16 your de facto Defence counsels without being physically present in the

17 courtroom.

18 It is with this in mind and given that the presentation of the

19 Defence case requires a higher level of physical exertion than what may be

20 required during the Prosecution's case the Trial Chamber discusses this

21 current issue of imposing or assigning a counsel to assist you.

22 We are discussing this issue to alleviate the burden of yours, not

23 to silence you. If you truly wish to remain loyal to your assertion that

24 you endeavour to present your case for the sake of the truth, I think then

25 it's only rational and in the best interest that you choose to have the

Page 32335












12 Blank page inserted to ensure the pagination between the English and

13 French transcripts correspond













Page 32336

1 assistance of counsel.

2 I urge you to bear these facts in mind. And if I add to this, we

3 have a clear doctor's message which says that you are not fit to represent

4 yourself. We have to do something in one way or another. But we leave

5 it, as was suggested, we leave it to you to avoid such imposition of

6 counsel at any time by inviting your associates to come into the courtroom

7 to assist you. And if you so wish, there is also room for you for further

8 flexibility by allowing you the opportunity to supplement the examination

9 and re-examination of witnesses by the counsel whom you appoint.

10 THE ACCUSED: [Interpretation] Mr. Kwon, that is the difference.

11 That is the point. I do not wish to be in a situation to cross-examine my

12 own witnesses. I want to be able to conduct the examination-in-chief of

13 my own witnesses, and that is my right established by you according to

14 your rules, that I do have the right to defend myself. This is a major

15 difference.

16 Therefore, I request that you permit me to call and examine my own

17 witnesses. This is an elementary right of mine.

18 JUDGE ROBINSON: Mr. Milosevic, in your earlier presentation

19 before the break, you made reference to Judge May's support of your right

20 to defend yourself. I also supported it, as did Judge Kwon, but there is

21 a decision of the Trial Chamber on that issue, and it clearly states that

22 the Trial Chamber supported that right but that the right was not without

23 qualification. So I ask you to bear that in mind in your repeated

24 references to the earlier ruling of the Trial Chamber on this issue.

25 If you are finished, then Mr. Kay.

Page 32337

1 MR. KAY: Thank you, Your Honours. In our submission, this issue

2 entirely arises as a result of the condition of the health of the accused.

3 We do point out to the Court that rather contrary to some of the

4 submissions from the Prosecution today, that in their submissions of the

5 26th of July, 2004, at paragraph 29, they conceded that the conduct of the

6 accused was stopping just short of obstructionism. That was not in fact

7 an allegation that was in their mind at that time rather to the extent

8 that it has been presented today.

9 We all know the issue of the accused concerning the legitimacy of

10 the Tribunal, and the proceedings over the last three years has been

11 conducted with that in mind, and in our submission the Trial Chamber has

12 respected his arguments on the matter whilst ruling against it. There's

13 been no attempt by the Trial Chamber to silence the accused on such an

14 issue. They, in fact, have respected his opinions whilst going about

15 their own business in dealing with the conduct of this case. And it's not

16 meant to be insulting to the Court in any way. There is a freedom of

17 expression available to him. He is not counsel. He has chosen to defend

18 his case himself whilst at all times taking pains to ensure that why he is

19 doing what he is doing is understood within a general context. At the end

20 of the day, the powers and decision-making, we all recognise, lie with

21 this Court and the Judges, and in our submission, the accused isn't being

22 disrespectful in relation to that.

23 Judge Bonomy.

24 JUDGE BONOMY: Mr. Kay, I think there are certain limits to how

25 far certain references can be tolerated, and as you must have observed

Page 32338

1 yesterday, I think on two occasions Mr. Milosevic referred to this Trial

2 Chamber as part of a joint criminal enterprise and acting against him.

3 Now that is offensive. And my only reason for not intervening on either

4 occasion was the circumstances that he was making an opening statement,

5 which in my opinion he's entitled to make without interruption, but that

6 was the only reason, I assure you, for not interrupting what I thought was

7 a flagrant insult to the Court.

8 MR. KAY: It was an opening statement. When he gets down to the

9 matter of dealing with business in terms of witnesses, one will have seen

10 from the record that in fact that's not his approach to the evidence.

11 And he's also been the subject of many barbs and criticisms from

12 the other side. We have heard it today as well. We have at times as

13 well. And this is perhaps when the parties on both sides perhaps get too

14 over-enthused by the legitimacy of their provisions and positions.

15 In our submission, there is no disrespect here intended by the

16 accused. In fact, within the proceedings he has not been obstructive.

17 He's been respectful to the Court subject to certain occasions that Your

18 Honour has pointed out, and his clear intent has been on that line.

19 To start saying whatever faults there may be, that that's a ground

20 for taking away his right to represent himself, in our submission is

21 Draconian and doesn't really cause us to be here today discussing this

22 issue. It's probably a feature of the Prosecution's argument that we can

23 put on one side.

24 JUDGE BONOMY: I think I also ought to make it clear to you,

25 Mr. Kay, that of course that sort of thing is something that in my opinion

Page 32339

1 the Court ought to deal with as it arises, and I understand what you're

2 saying, that it may well not be an issue in relation to the assignment of

3 counsel. It may in fact be a quite separate matter, and indeed that may

4 be said of the other references that Mr. Nice made to features of the

5 conduct of the accused himself.

6 The point, however, needs to be made that these things do not go

7 unnoticed. What action is taken is quite another matter.

8 MR. KAY: Yes, and I'm grateful for Your Honour's comments on

9 that, and we of course are all aware of that, that that's the position of

10 the Trial Chamber.

11 In relation to issues such as the naming of the witnesses, that

12 appears to have been, which the Trial Chamber I believe know from

13 documents filed, a misunderstanding in communication by those acting on

14 his behalf. The amici curiae on the 9th of August filed a list of numbers

15 of witnesses ex parte and confidential. We've been endeavouring to help

16 as much as possible to try to get a smooth introduction to the Defence

17 evidence in this case, and I believe it was misunderstood by another party

18 about the need for the issuing of the names. When that mistake was

19 recognised, the legal officer for the Tribunal, Ms. Anoya, filed on the

20 25th of August, I believe, a document that had been constructed with

21 numbers and names together which came from the associates. The

22 Prosecution have known this as well, actually, and to make it as a point

23 now, in our submission that doesn't really give merit to their arguments.

24 They've known what the difficulty was behind that particular matter.

25 Let's get to the real issue, which concerns the health of the

Page 32340

1 accused. The amici curiae filed on the 13th of August our submissions in

2 relation to this matter, and we have always argued in support of the right

3 of the accused to represent himself. However, there has been a change in

4 the information before the Trial Chamber and that arises from the medical

5 reports.

6 In many respects, this is an issue that perhaps can be dealt with

7 in two stages. First of all, do the -- do the Trial Chamber accept from

8 the evidence before it that the accused is unfit fully to represent

9 himself? And there needs to be a second stage, once that finding has been

10 made, that receives the arguments of the parties as to where to go next.

11 The amici curiae have always sought to fulfil their role which requires

12 them to make points in the interest of the accused on matters of law,

13 objections to evidence, and matters of procedure, and that's been our

14 position to date, and we've endeavoured to provide full arguments for his

15 side on the matter, there being no written filings by the accused himself,

16 just the oral argument that the Tribunal has heard today and on other

17 occasions.

18 In many respects, I've then got to go to the next stage on the

19 basis of what if there is a finding in relation to his representation?

20 There's no point me just standing here and saying, well, that's as far as

21 the matter goes, because it may be that the Trial Chamber makes that

22 finding and then deals with the secondary stage: What happens next.

23 In our submission, there's nothing in the Rules that would prevent

24 the accused from still taking part in the presentation of his defence, and

25 on those occasions where there may be failings in the trial that require

Page 32341

1 an alternative course of conduct or indeed if the accused to preserve his

2 energy and health and in the delegation of tasks brought about by

3 representing himself, that in those circumstances he should be entitled to

4 use the services of his associates if they wish to take up that position

5 on his behalf or another counsel appointed by Mr. Milosevic or his

6 associates to deal with such matters when they arise.

7 Within the funding of this Tribunal, there are grounds, and indeed

8 within the Rules, that no obstruction to funding being made available for

9 counsel appointed by him or his associates to represent him in this

10 courtroom if the Court went down that route of what we could call a hybrid

11 position of representation. Maybe the phrase in that circumstance of

12 "imposing counsel" is inappropriate. It's assisting Mr. Milosevic in his

13 presentation of the Defence case.

14 JUDGE ROBINSON: You will have noticed, Mr. Kay, that we haven't

15 used the term "imposing." We have been speaking of assigning in our

16 orders.

17 MR. KAY: Yes, the amici have noticed that throughout and felt

18 that that was an indication here that the Tribunal were not, in the

19 circumstances, taking away the right of his representation, but as Judge

20 Kwon's questioning earlier this morning posited that there could be a dual

21 function within Mr. Milosevic's team or group for the presentation of his

22 case. And that's a course that we urge be adopted by him as well as by

23 the Trial Chamber. And all lawyers involved in big litigation - and this

24 litigation is as big as it gets - have to delegate roles and tasks, and

25 the leaders of teams involved in this kind of litigation, as we've seen in

Page 32342

1 the Prosecution presentation, may I say in a very limited form in terms of

2 the amici curiae, but in all other cases, a delegation of tasks for

3 interviewing witnesses, thinking of case strategies, as well as the

4 presentation of evidence.

5 We urge that that not be taken away from Mr. Milosevic despite the

6 medical reports, but that it gives him a free hand, if you like, to make

7 his own personal decisions as to what is in his best interest. And it may

8 be, if we're in this stage, too, of his right of unfettered

9 self-representation being curtailed because of the position of the trial

10 at this date, it may be that having passed the one hurdle, that he, aware

11 of the fact that if there is a breakdown in the course of the conduct of

12 the case caused because he has worked himself too hard, then someone else

13 on his behalf within his team, or appointed by him if it's outside his

14 team, would be able to present evidence on his behalf. And then he has to

15 judge how much he does and either delegate more, regulate the amount of

16 work that he does; but to ensure that those aspects of the case that he

17 needs to deal with he can fulfil that role effectively.

18 So if the Trial Chamber does move from the position of unfettered

19 self-representation, we urge him and the Trial Chamber to view that as

20 really the first stop on the issue. The highest priority is that it's

21 someone within his team who is able to share some of the burden within

22 him. And if his other two associates, or three associates now who have

23 been dealing with the preparation of the case are unable to take that on

24 themselves because they're involved in other aspects, that they appoint

25 someone that they want to deal with the supplemental advocacy on those

Page 32343

1 occasions when Mr. Milosevic can't do it or has felt able to relieve some

2 of the burden on himself.

3 Within the Rules of this Tribunal, that can be funded. There is

4 no reason why there should be an obstruction in the provision of resources

5 that way. And every indication would be so far in the presentation of

6 this trial that the Registry in this building would be supportive of that.

7 But we do urge that that is very much the first stop, to give him

8 the choice once a decision is made, when it's known how this matter is to

9 be dealt with, before the Trial Chamber moves into any other position.

10 Unless I can deal with other issues specifically on behalf of the

11 amici, those are our submissions at this stage.

12 JUDGE ROBINSON: Thank you very much, Mr. Kay.

13 Mr. Nice.

14 MR. NICE: Can I reply briefly?

15 On the accused's points, he speaks of our speaking of danger in

16 preparing the witnesses. The danger to which I initially referred was the

17 danger to his health. But there is, in fact, an additional danger. It's

18 the danger of a personal party to litigation being too close to the

19 litigation to prepare witnesses dispassionately, and in this case, of

20 course, some witnesses might actually prefer the practice that exists in

21 many jurisdictions whereby witnesses are not prepared by the litigant

22 himself and have to be prepared by the independent solicitor or other

23 lawyer.

24 In speaking of his fatigue, the accused did not suggest that he

25 has the physical capacity to both prepare and present witnesses at the

Page 32344

1 rate that would be required to guarantee a three-day sitting week, which

2 is the minimum, of course, that the Chamber might regard as acceptable.

3 And indeed, he didn't challenge the medical finding that he is not fit to

4 prepare and present his case wholly himself.

5 I observe from an interview we've received notice of recently,

6 when the accused speaks of, as it were, his disinclination to have a

7 lawyer act for him, that one of his advisors, in a public interview in a

8 newspaper - I'm afraid it's in German; we'll make it available - Mr.

9 Ognjanovic, has described his role as being only marginally distinct from

10 that of Defence counsel. The next stage is one that, at a minimum, should

11 now be required of him via this accused.

12 It's said that our initial submissions spoke of behaviour being

13 just short of obstructionist. True. We also referred to the etiquette

14 matter. We have referred regularly and extensively to the wasting of

15 time, and that filing came before we had the recent and very much stronger

16 evidence going to show that what was happening with the medical regime was

17 obstructionist.

18 JUDGE ROBINSON: You mean before the second report from Dr.

19 Dijkman?

20 MR. NICE: Yes. That's the earliest filing that came right in

21 July. So insofar as there's been a strengthening of our position, it

22 reflects that.

23 As for the suggestion that the observations, the recurring

24 observations of this accused are not present to be insulting, that's not a

25 proposition we can accept. Apart from the matters to which His Honour

Page 32345

1 Judge Bonomy referred, it is the needless repetition of the points, both

2 as against the Judges and as against the Prosecutor and those prosecuting,

3 that we rely on to reveal the true intention of this accused, which, in

4 our respectful submission, is claimly aimed at showing public respect and

5 being allowed to show public respect to the audience at which his

6 performance is principally directed.

7 On the topic of the production of statements -- sorry, names of

8 witnesses and exhibits, the Chamber will have the history before it. It

9 was on the 18th of June that the order was made -- or the 17th of June,

10 set in writing on the 18th of June. The Prosecution sought relief on the

11 29th of June in relation to this and raised the question of non-compliance

12 on the 5th of July, and it was at that hearing that the accused said that

13 he was only going give us so much and he was acting in the identical

14 manner as the other party.

15 Compliance with that order was made on the 6th of July, and on the

16 16th of July, the amici requested, as for the accused, 14 days for further

17 compliance, so that would have only taken them until the end of July.

18 The order of the Trial Chamber came on the 28th of July, and

19 whatever misunderstanding there may have been, and I accept that Ms. Anoya

20 spoke of a misunderstanding to the case manager, Ms. Dicklich, on the 25th

21 of August, the fact of the matter is, that despite that history, we got

22 the names on the 20 -- well, two days ago, three days ago, and we don't

23 adjust our position in respect to that at all.

24 Funding is a separate issue and it's not a matter, I think, upon

25 which we should dwell, save to say this: If the Chamber decided that its

Page 32346

1 future conduct of the case were to be conditional on the accused appearing

2 through counsel of his own nomination as part of its overall plan for the

3 future conduct of the case, that decision should come first and the

4 question of funding should come second, it needing to be established, I

5 think, by the Registry, what his financial position is, and that's not a

6 matter for us to trouble you with at this stage.

7 The distinction between imposition and assignment is one we've

8 recognised from the beginning and throughout our submissions, and

9 Mr. Kay's -- my learned friend Mr. Kay's proposal, as we ventured to

10 suggest at the start of our argument this morning, allows for control of

11 the proceedings to be in the hands of the accused, and one has only to

12 look at what happened in Seselj where counsel was made available to him on

13 the basis that counsel would not be removable by him, and the first

14 counsel was. It's all too possible, if you have that kind of

15 relationship, for something to go wrong, which is why we repeat our

16 request to the Chamber to impose counsel and then to allow the accused to

17 make the sensible decision. Imposed counsel might have no function more

18 pleasing than to be on stand-by throughout the rest of the case. He might

19 serve as an alternate Judge serves in courts that appoint such Judges.

20 But his presence or her presence would guarantee two things, first that

21 the progress of the Chamber of the trial would not be further thwarted;

22 and second, in fact, that the accused through his nominated counsel would

23 comply with what was required of him, for imposed counsel would remind

24 him, standing ever so still and ever so silently in the Court -- or

25 sitting ever so still and ever so silently in the Court, would remind him

Page 32347

1 that if he returned to conduct that was obstructive in any way by

2 preparation or otherwise, the conduct of the case would be handed over to

3 an independent and objective different counsel.

4 JUDGE ROBINSON: Thank you.

5 THE ACCUSED: [Interpretation] Mr. Robinson.

6 JUDGE ROBINSON: Yes, Mr. Milosevic.

7 THE ACCUSED: [Interpretation] This is improper. I would use an

8 even graver word, but there is no need for that. It is highly improper.

9 This proposal made by Mr. Nice is that you should threaten me that

10 I should not fall ill, because in case I fall ill, you will not act as you

11 would act in any other court of law on this planet. You will not say on

12 such and such a day we will not work, but then there will be this threat

13 hanging over me that then some other person would take over my rights to

14 defend myself. That is senseless.

15 Please, let's be clear on this. Mr. Nice says that I did not

16 challenge the fact that I was ill. Of course I did not challenge it. But

17 I was ill during that case of theirs too. They had 300 days. Three

18 hundred active days and I don't know how many witnesses. Please.

19 And indeed if anybody is watching this, then it's quite clear. At

20 that time, the question of my capabilities was not raised in terms of

21 exercising my rights, the ones that you gave me and that belong to me

22 according to all international conventions. But now when my time has

23 come, all of a sudden the question of my ability to defend myself has been

24 raised. You do not take away somebody's right to self-defence if he gets

25 sick. Then you don't work and that's it.

Page 32348

1 Let's get another thing clear too. The right to defend myself is

2 a question of principle. I do not accept any decrease of that right or

3 any renouncing of that right altogether. So I insist that you make it

4 possible for me to question my own witnesses, and I am categorical on that

5 point.

6 JUDGE ROBINSON: Yes. We have heard your submissions.

7 [Trial Chamber confers]

8 JUDGE ROBINSON: We'll take a ten-minute adjournment to consider

9 this matter.

10 --- Break taken at 1.26 p.m.

11 --- On resuming at 1.45 p.m.

12 JUDGE ROBINSON: In the result, the Chamber was not able to arrive

13 at a decision on this matter in the time that we had set ourselves for the

14 adjournment, but in the event that the Chamber should decide to assign

15 counsel, the Chamber would wish the parties to be prepared tomorrow

16 morning at 9.00 to advance submissions on the question of how such

17 assignment should be made, the manner in which such assignment should be

18 made, that is the modalities that would govern such an assignment.

19 Is that sufficiently clear?

20 THE ACCUSED: [Interpretation] Mr. Robinson.

21 JUDGE ROBINSON: Mr. Milosevic, yes.

22 THE ACCUSED: [Interpretation] Please bear in mind the following:

23 For three years, the same doctors have considered me fit from the point of

24 view of health to function, and you yourselves have been able to see that.

25 Even Mr. Nice, in support of his motion that I be given as little time as

Page 32349

1 possible, put forward the argument that I have been functioning very

2 efficiently. So for three years the same doctors have considered me fit

3 to function. Then an independent doctor turns up from Belgium, the

4 country which is the seat of the NATO pact, and he says I'm unfit and then

5 the doctors here agree with him.

6 Allow me to bring into question this kind of deduction of medical

7 evidence. Please consider my motion and let the experts evaluate the

8 situation, but I ask for an expert from Russia, from Serbia, from Greece,

9 and then you can add two of your own, if you like, whom you will appoint,

10 to see what this is about. Things are being mystified here when in fact

11 they are very simple.

12 I see this as a manipulation aimed at depriving me of my right to

13 speak here and to speak the truth. That is the essence of it all.

14 Mr. Nice says in support of his argument that a lawyer should be

15 imposed on me, counsel should be imposed on me, that I am too involved and

16 am unable to be dispassionate. However, I feel that the other side is too

17 dispassionate when it comes to the truth. I cannot, of course, interfere

18 in how the other side do their job, but they cannot interfere in the way I

19 exercise my rights. That too is a question of principle.

20 Therefore I wish to reiterate: My right to defend myself is

21 something that I will neither accept having diminished nor will I ever

22 waive it. Please bear that in mind. And you can reach your own

23 decisions, but I receive the medicaments given to me by your people, your

24 employees. What is happening here, I don't know, but I can bring the

25 whole floor of the Detention Unit here to testify to what happened when

Page 32350












12 Blank page inserted to ensure the pagination between the English and

13 French transcripts correspond













Page 32351

1 the food I had was exchanged with the food of the person across the

2 passageway, and there was a big to-do about setting things right, although

3 the food apparently was the same. It appeared to be the same. And I did

4 not raise the issue. I don't know what was going on.

5 But please be kind enough to bear in mind that when, for three

6 years, they have been saying one thing and now suddenly they turn around

7 and say something else, I am right in having suspicions. My suspicions

8 may or may not be justified, but they are well grounded.

9 [Trial Chamber confers]

10 JUDGE ROBINSON: Mr. Nice, on the submission from the accused that

11 he be allowed to bring an expert on the question of his health, do you

12 have any --

13 MR. NICE: First of all -- first of all, just investigating

14 whether this whole and very late submission by him was the subject of an

15 earlier order of yours that has not been reflected or respected by him,

16 and I'm grateful to Ms. Graham again for having this point in mind because

17 it had eluded me.

18 Would Your Honour just give me one minute.

19 [Prosecution counsel confer]

20 MR. NICE: Your Honour, what I'm concerned about is whether, in

21 fact, there's an order that quite expressly raises these issues for the

22 accused to deal with, and he, it may be thought, declined to deal with

23 them until right at the last minute, maybe when he sees, in the

24 vernacular, which way the wind is blowing. But even if there is no

25 express order in respect of which he is in non-compliance, his approach to

Page 32352

1 raising this issue, really, at this stage when he's seen the reports and

2 he had the earlier opportunity to raise the point is not insignificant.

3 Let me see if I can find the order. Apparently not. The amici

4 might be able to assist with the relevant order that we have in mind, and

5 I'm sorry, I've gone through them all recently, chronologically, but I

6 can't find it.

7 As to the substance of the matter that he raises, no, it's far too

8 late. This issue of his health and of his possible, probable, or certain

9 manipulation of his medical regime has been before him and his associates,

10 who are marginally different from lawyers appearing for him, as one of

11 them has said, for months. They know. The accused is a highly

12 intelligent man who, it may be thought, knows how to play the Court when

13 he has to. They know that that's an issue that is going to come up for

14 consideration and that you need to prepare to deal with it. This

15 allegation about the Belgian NATO-country doctor is absurd and the Chamber

16 should be content with the evidence that it has, the Chamber having been

17 always extremely careful to check medical information against second

18 opinion when it's judged it necessary.

19 The order that we had in mind is the order dated the 6th of August

20 where the accused and the amici were ordered to file submissions within

21 two weeks on the role that counsel assigned -- I'll check. It's a public

22 order. On the role that counsel --

23 JUDGE ROBINSON: We only have four more minutes before we have to

24 vacate the court.

25 MR. NICE: Okay. Ensuring fair representation of the Defence case

Page 32353

1 in the absence of instructions or cooperation with the counsel, and the

2 role which the amici curiae might play. And Your Honour, that order, even

3 if it didn't specifically seek any contrary evidence on medical issues, to

4 any intelligent person let alone to a lawyer appearing for this accused

5 would have raised the need to prepare himself against the eventuality he

6 now concerns himself with.

7 JUDGE ROBINSON: All right. Mr. Kay.

8 MR. KAY: Very briefly. There was no order requiring him to posit

9 any alternative medical report the Trial Chamber in our researches into

10 the matter. It has been raised by the accused at a late stage but it is

11 an important matter and the Trial Chamber might like to consider that when

12 dealing with this issue and give the accused, say, seven days in which to

13 respond to the matter.

14 JUDGE ROBINSON: We're going to adjourn and resume at 9.00.

15 Mr. Milosevic, can you say very quickly, why is this matter being

16 raised so late by you?

17 THE ACCUSED: [Interpretation] Because it seems to me,

18 Mr. Robinson, that there is a manipulation going on here, because if for

19 three years --

20 JUDGE ROBINSON: I'm stopping you because the medical reports have

21 been transmitted to you. So you would have had time to consider the

22 matter, and instead you're raising it at the very last minute.

23 It's important that you offer an explanation for the lateness if

24 the request is to be considered.

25 THE ACCUSED: [Interpretation] Because, Mr. Robinson, until today

Page 32354

1 when I heard all these arguments which I feel to be highly illogical and

2 tendentious, it never crossed my mind. I'm probably not as intelligent as

3 Mr. Nice thinks I am. It never crossed my mind that it might be at all

4 possible for counsel to be imposed on me. It didn't even cross my mind.

5 I had in mind a clear-cut position that this was my right which would not

6 be denied me. However, now that I have heard all this, examples of how

7 people are treated who are accused of sexual crimes, which have nothing to

8 do with which we are speaking about here, when I see the arguments

9 constructed by the other side in order to have this right denied to me at

10 any cost, then of course I am beginning to think that there might be some

11 sort of manipulation involved here. I think it's quite logical and

12 normal. It never even crossed my mind that this kind of situation might

13 arise, that you might impose counsel on me. That is out of the question,

14 and I will not accept it.

15 JUDGE ROBINSON: Mr. Kay, your submission, as I understand it, is

16 that the accused might be allowed a week in which to get this medical

17 evidence.

18 MR. KAY: Yes. I don't think he's been advised on this issue by

19 his associates, from the information I have, the argument just put by the

20 accused to the Tribunal concerning it never crossing his mind that his

21 right of self-representation may be taken away is probably right. And it

22 may be well be that this issue has not been given the attention that it

23 ought to have been by those advising him.

24 JUDGE ROBINSON: Thank you. We will adjourn, and we will address

25 these matters tomorrow morning at 9.00.

Page 32355

1 --- Whereupon the hearing adjourned at 2.00 p.m.,

2 to be reconvened on Thursday, the 2nd day of

3 September, 2004, at 9.00 a.m.