1 Tuesday, 29 November 2005
2 [Motion Hearing]
3 [Open session]
4 [The accused entered court]
5 --- Upon commencing at 9.05 a.m.
6 JUDGE ROBINSON: The Chamber scheduled a hearing this morning to
7 hear submissions from the parties on the question of severing the Kosovo
8 indictment and concluding that part of the trial.
9 We'll hear first from the Prosecutor.
10 MR. NICE: We filed a paper late yesterday afternoon. I don't
11 know if the Chamber has had an opportunity to consider it.
12 JUDGE ROBINSON: No. I just received it, Mr. Nice, and I haven't
13 got beyond page 2.
14 MR. NICE: Your Honour, I was, in fact, proofreading it rather
15 late yesterday and one or two things slipped through that required it to
16 be amended, so in fact the version you've got I think has been withdrawn
17 and a slightly -- a corrected or slightly amended version will be with us
18 shortly. But there's no difference in substance. And up and until quite
19 a late stage, there's no change in paragraph numbers.
20 But I would ask the Chamber to -- obviously, to consider that in
21 detail, and I don't intend to go over all the ground of that document now,
22 even though the Chamber hasn't had an opportunity to read it in advance.
23 However, perhaps I can summarise our position as set out in that
24 paper, and amplify the paper with one or two other observations. The
25 Prosecution is completely opposed to any question of severance of this
1 indictment. It is also opposed, should this matter be being considered
2 today, to the grant of any extra time to this accused for presentation of
3 his Defence, save for one particular circumstance which I cover in the
4 paper. And the Prosecution is of the view that there should be no further
5 delay in the hearing of Defence evidence as a result of the apparent
6 medical condition of this accused.
7 On that last point, I understood that we might have been expecting
8 further medical reports about today -- yesterday or today. None has been
9 seen by the Prosecution and therefore the present medical position is as
10 covered by reports that, in the submission of the Prosecution, reveal
11 little, if any, significant change in the condition of the accused as
12 reported on much earlier.
13 JUDGE ROBINSON: Mr. Nice, why did you use the word "apparent"
14 with regard to the condition?
15 MR. NICE: Because, Your Honour, there is a history of uncertainty
16 as to whether the accused has been taking his medication correctly, and
17 that has been adverted to again in the recent filings by the medical
18 experts. That's all I can say on that.
19 Now, the scheduling order of the Trial Chamber appointing today
20 for this discussion identified a number of factors without, if I may
21 respectfully say so, identifying with absolute particularity the concern
22 that it wanted us all to address. And I venture to suggest that any lack
23 of clarity in the question that we are addressing may be unfortunate. Are
24 we reconsidering severance because of some further evidence about the
25 accused's health position? Are we reconsidering severance because of the
1 way he has chosen to conduct his Defence, or for some other reason or for
2 a combination of reasons?
3 Now, because of that lack of certainty, there are some
4 difficulties, as I explain in the paper, in dealing with today's argument.
5 There has inevitably, and indeed as forecast in our earlier filing last
6 year on the same topic, been unhelpful and, indeed, unflattering
7 discussion in the media in the former Yugoslavia about the true objectives
8 of this issue of severance being raised. The media is making allegations
9 that the Tribunal as a whole is trying to help the Kosovo Albanians, or
10 trying to reflect the fact that there is no evidence on which to convict
11 the accused and matters of that sort. And it may be that this freedom to
12 make such assertions flows from the fact that there is some lack of
13 clarity as to why we are, in fact, discussing severance again at this
15 JUDGE BONOMY: May I say right at the outset, Mr. Nice, that I
16 regard that as a preposterous submission. I found it offensive when I
17 read it. I was completely unaware of these comments that you've now drawn
18 to the attention, and that you should give credence to any basis at all
19 that might justify these astounds me.
20 MR. NICE: I absolutely don't. Completely the reverse.
21 JUDGE BONOMY: You've just suggested it's because of a lack of
22 clarity in the order that was given.
23 MR. NICE: I see, yes. I stand by that, and I'm sorry that Your
24 Honour takes the view that you do.
25 JUDGE BONOMY: Well, you can rest assured I do.
1 MR. NICE: Very well.
2 But the position, so far as the Prosecution is concerned, is that
3 we are facing here a trial of somebody who could reasonably be expected
4 would be on trial, the head of state of one of these involved parts of the
5 former Yugoslavia, a man suffering from a medical condition that is
6 unsurprising for his age, on a trial that is necessarily extensive.
7 Having said that it is extensive, it is essential to repeat - the Chamber
8 knows this - but to repeat so that the public perception is corrected if
9 it needs correcting, that the Prosecution evidence in chief only actually
10 lasted some seven weeks of this Court's comparatively short trial days,
11 seven full weeks, for each -- averaged out, for each of the indictments.
12 That is by no means an excessive period of time.
13 In that period of time, because it made full use of the means of
14 achieving economy in the presentation of evidence, the Prosecution called
15 some 295 witnesses, with another 50-odd in written format; 352 in total.
16 And before we move from the extensive nature of necessity of a trial like
17 this, and on the basis that the accused has been allocated the same time
18 for preparation -- presentation of his case as has the Prosecution, why,
19 then, in the time allowed him, he would have had the opportunity to call
20 200, 300 witnesses. And so, therefore, wherever the perception is given
21 that this is an excessively long trial and thus, perhaps, reaching the
22 position of unmanageability, it has to be borne in mind that the real time
23 consumed is actually moderate given the scale of the enterprise.
24 Twenty-one weeks for examination-in-chief by the Prosecution in
25 its case. If you doubled it - in fact, it was more than doubled because
1 of the way the accused conducted his case - that would take you to some
2 42-odd weeks. If you double that for Prosecution and Defence case, you're
3 in a case that lasts a little more, but not necessarily substantially
4 more, than one year of full-time sittings. So that we're not, in fact,
5 dealing with a case that needs to be construed or described as excessively
7 I move on from the characteristics of the trial in the most
8 general terms, from its extensive nature to the fact that the accused
9 doesn't recognise the Court. That's not necessarily to be -- is
10 unexpected, and, indeed, that he seeks to serve purposes that are
11 non-forensic, also reasonably to be forecast, it may be, for trials of
12 this kind. And a central part of the Prosecution's approach to the
13 problems facing this Trial Chamber is that it must be possible for such a
14 man, in these comparatively -- or in these -- in circumstances that could
15 be forecast, it must be possible for him to be tried and tried to
16 completion. And that severance must, as at first sight - and indeed we
17 could say at second and all later sights, but at first sight - be entirely
19 I move on in the paper, and if we can stick with the paragraph
20 numbers -- I don't know if the new ones have now been distributed. Thank
21 you very much. To deal with the question of the accused's use of time
22 made available to him, and to make good the argument that he should be
23 allowed no extra time, save in one particular possible circumstance. This
24 can be found at paragraphs 12 and thereafter.
25 This accused has made conscious decisions how to use his time. He
1 has used his time to date almost exclusively on the Kosovo portion of the
2 case. That means that he has little time to present evidence on the
3 Bosnia and Croatia parts of the case.
4 Now, he has been told by this Court repeatedly and fairly that
5 it's up to him how he uses his time and that he cannot expect an
6 extension. In those circumstances, he is - and this is at paragraphs 14
7 and 15 and thereafter - he is to be dealt with, in respect of what seems
8 to be a problem maybe about Croatia and Bosnia evidence, he is to be dealt
9 with exactly as if he was an accused making a conscious decision to call
10 no evidence, or almost no evidence, for those parts of the case. He has
11 actually acted in defiance of Court orders and invitations that he well
12 understands, and it -- I'm sorry, Your Honour.
13 JUDGE BONOMY: Mr. Nice, help me, where does this issue of
14 extended time arise? I have looked again at the order that fixed this
15 hearing, and it's all about health. And you know perfectly well that
16 that's the problem, that a submission was made that the accused required a
17 period of rest. And because that arose, this issue followed. Now, where
18 is the application for the extension of time that you're now addressing?
19 MR. NICE: There hasn't been one.
20 JUDGE BONOMY: Is it the agenda set by the Serb press and
21 commentators that you're addressing at the moment or is it the issues
22 raised by the Trial Chamber?
23 MR. NICE: Page 3 of Your Honours' and the Court's scheduling
24 order: "Noting that the accused's case has now progressed to
25 approximately 75 per cent of the 360 hours allotted to him to present his
1 case in chief, he has led almost entirely Kosovo-related evidence in that
2 time, and the end of the Defence case, without any extension of additional
3 time being granted, and not taking into account the current or future loss
4 of time due to the accused's ill-health is estimated to be sometime in
5 March 2006."
6 Your Honour, I have to say that it seemed to me the fact that that
7 was noted in the scheduling order, meant that, in some way, it was being
9 JUDGE BONOMY: One thing that a court is bound to do, which
10 plainly a prosecutor isn't, on the present performance is keep an open
11 mind, and it would be preposterous for the Trial Chamber to pose the sort
12 of questions you've suggested in the first page of this submission. But
13 equally, having heard on one occasion an application for an extension of
14 time, bearing in mind the loss of time that's already occurred, and
15 bearing in mind the suggestion that was made that there would be more loss
16 of time, then it makes no sense not to simply lay out these as issues that
17 may at some stage in the future, and indeed in relation to one of them is
18 at the moment, causing concern. But my concern is certainly in relation
19 to the issue of adjournment in relation to the health of the accused.
20 MR. NICE: If the Chamber's only concern is in relation to health
21 of the accused, because the original timetable is expected to be kept to,
22 then --
23 THE INTERPRETER: Could you speak into the microphone, please.
24 MR. NICE: -- then that would be much easier. But I have to say
25 that reading the scheduling order in the form it was, and as I've just
1 read it out, made it pretty obvious to me as a possibility that the
2 Chamber was concerned, amongst other things, by the impact on future
3 conduct of the trial of the possibility of there being the need to
4 consider an extension of time allowed to him. And I have in mind very
5 much the way the Chamber has tried to establish with him whether he
6 recognises that he is running out of time when he's asking for more time.
7 JUDGE BONOMY: How could that justify severance? The issue is
8 severance. So how would the fact that he needed more time impact on the
9 issue of severing one indictment from the other two?
10 MR. NICE: Well, if the Chamber is unanimously of the view that it
11 has no impact on the question of severance and therefore could not
12 encourage the Chamber to grant severance, I can move directly to the
13 issues of health and severance itself.
14 JUDGE BONOMY: I may be speaking for myself on that, but I cannot
15 see how, if the trial is to run on smoothly, that severance would really
16 be an issue.
17 MR. NICE: Maybe I'll come back to that topic when and if I'm
18 asked further questions by Your Honour's other Judges. But I make it
19 clear that when dealing with this issue as I did, I was attempting to, and
20 I hope successfully attempting, to cover all the possible factors that
21 will drive the Court's decision in the future conduct of this trial. And
22 to sum, the question of the accused's use of his time so far has proved to
23 be an important or potentially important factor. But if we can part from
24 it straight away, then, at least for the time being, I will.
25 Just repeating what the Prosecutions position is: That there
1 should be no extra time granted to him in light of his current conduct, I
2 can take Your Honours to the place where I deal, in the filing, with the
3 only circumstances on which it might be thought there could be grounds for
4 extra time, and that's dealt with at paragraphs 21, 24, and 27 of the
5 filing. But I don't desire to go through them at this stage.
6 Now, when we come to the issue of severance generally and the
7 impact, if any, of the current position on the accused's health, we are,
8 first of all, significantly assisted by the Appeals Chamber's decision of
9 the 1st of November, 2004, on the assignment of Defence counsel.
10 Can I add to the citations of that decision that are in our filing
11 by one or two other references from that decision. The Appeals Chamber
12 noted, of course, that there is the presumptive right to
13 self-representation. It went on to observe that the right to
14 self-representation -- or it may be decided, is the term they put it in,
15 this way, whether the right of self-representation may be curtailed on the
16 ground of a defendant's -- that defendant's self-representation is
17 "substantially and persistently obstructing the proper and expeditious
18 conduct of his trial," and it expressed the view that the Chamber may,
19 under appropriate circumstances, "restrict the right on those grounds."
20 But then at paragraphs 13 and 14, it made these observations --
21 well, I can probably omit 13. At 14, it dealt with the possibility of the
22 health situation getting worse.
23 "How should the Tribunal treat a defendant whose health, while
24 good enough to engage in the ordinary and non-strenuous activities of
25 everyday life, is not sufficiently robust to withstand all the rigors of
1 trial work - the late nights, the stressful cross-examinations, the
2 courtroom confrontations - unless the hearing schedule is reduced to one
3 day a week, or even one day a month?" asked the Appeals Chamber
4 rhetorically. "Must the ... Chamber," it went on, "be forced to choose
5 between setting that defendant free and allowing the case to grind to an
6 effective halt? In the Appeals Chamber's view, to ask that question is to
7 answer it."
8 It then went on at paragraph 15 - and I've only got a couple more
9 citations that I want to draw to your attention and remind you of - to
10 say, of the Trial Chamber's decision that it affirmed in part but, as we
11 know, changed in part, it said:
12 "There was a legitimate basis, in other words, for the Trial
13 Chamber's conclusion that the trial 'might last for an unreasonably long
14 time, or worse yet, might not be concluded' if Milosevic were allowed to
15 continue representing himself. Given that finding, it was within the
16 Trial Chamber's discretion to assign counsel to Milosevic notwithstanding
17 his opposition."
18 At paragraph 17, it said:
19 "... any restrictions on Milosevic's right to represent himself
20 must be limited to the minimum extent necessary to protect the Tribunal's
21 interest in assuring a reasonably expeditious trial." And went on: "...
22 any restriction of a fundamental right must be in service of 'a
23 sufficiently important objective' ..."
24 At paragraph 18, perhaps quite importantly, it observed, when it
25 parted company with the decision of the Trial Chamber, that its finding
1 that the Trial Chamber's restrictions on the involvement of the accused
2 were excessive, were for three reasons: "(1) the medical reports relied
3 on by the Trial Chamber explicitly rejected the notion that Milosevic's
4 condition is permanent, (2) there was no evidence that Milosevic had
5 suffered from any health problems since late July ..." and then this:
6 "(3) Milosevic made a vigorous two-day opening statement ..."
7 And the Chamber will recall that it emphasised that again in
8 paragraph 19, I think, of its disposition, where it relied on the apparent
9 vigorous good health of the accused at that stage to justify what it said
10 was just "a presumption" about the decision of the Appeals Chamber that
11 Milosevic should take the lead in presenting his case.
12 Now -- and then it concluded with a passage that has indeed been
13 cited and referred to in our filing; namely, that if all goes well, the
14 trial should continue much as it did when Milosevic was healthy. Later,
15 it says this:
16 "If Milosevic's health problems resurface with sufficient
17 gravity, however, the presence of Assigned Counsel will enable the trial
18 to continue even if Milosevic is temporarily unable to participate."
19 Now, I come back to what I said at the beginning: On the medical
20 evidence so far available to us from the doctors invited to prepare
21 reports by the Chamber, there is no, as I read it, revealed change of
22 substance in the underlying medical position. However, the accused came
23 in a week or so ago and simply told you that he would not or could not
24 carry on, effectively. He was reluctant to apply in terms for an
25 adjournment on the grounds that he was incapable, and sought to get you to
1 make that decision by reference to medical opinion from doctors he had
2 retained, but he was clearly saying that he was not then able. He wasn't
3 in a vigorous state of health that the Appeals Chamber, it may be heavily
4 relied on, when it reversed the order of modality that this Chamber had
5 earlier imposed.
6 I draw that to your attention for this reason, and subject, of
7 course, to any other medical evidence that may be forthcoming today or
8 soon. The wise discretion spoken of by the Appeals Chamber lying in this
9 Chamber should, in the respectful submission of the Prosecution, now be
10 invoked to change the modalities of presentation of Defence evidence to
11 reflect the apparent inability on medical grounds of the accused to be as
12 vigorous as he was, and to ensure that a timely result can be achieved for
13 this case.
14 In any such changed modalities, the Trial Chamber will be able to
15 rely on paragraph 20 of the Appeals Chamber's decision, which envisages
16 that assigned counsel can conduct the trial even if the accused is
17 temporarily unable to participate.
18 There is, I know, an exchange of filings on the question of trial
19 in absentia from, I think, April and May of last year, setting out the
20 assigned counsel's views on trial in absentia and the research of the
21 Prosecution on this topic.
22 JUDGE BONOMY: Mr. Nice, that envisages a temporary change of
23 driver in the case, not a permanent one, and it also envisages that
24 occurring where the accused is temporarily unable to participate. And one
25 interpretation of that word would be "unable to conduct his own Defence."
1 But the situation that arose last week, or two weeks ago, was that he was
2 unable to be here.
3 Now, how does the Trial Chamber continue with the case if his
4 health gets to the stage where he can't even be here?
5 MR. NICE: It was with that issue in mind that I drew to your
6 attention the earlier passage in the Appeal Chamber's ruling, where it
7 asked the rhetorical question about what happens if the trial would have
8 to reduce to one day a week or one day a month, saying that to ask the
9 question is to answer it.
10 If we are moving to the position where the accused is no longer
11 able to conduct the trial for the, it may be thought, minimum acceptable
12 three comparatively short days per week, why, then, the regime has to be
13 changed to save him from those consequences of his ill health which make
14 such limited attendance the maximum he can achieve. The only way of
15 dealing with that is by a more active involvement of the assigned counsel.
16 JUDGE BONOMY: One other way of dealing with it is to sever the
17 Kosovo case, which is more or less complete, deal with it while the
18 accused recovers his strength to carry on with the rest of the trial, if
19 you consider it appropriate to do so, after Kosovo has been dealt with.
20 MR. NICE: There is no material to suggest that recovery in those
21 circumstances is something that would occur. Of course, we are, to some
22 degree, in the dark because we don't have the most detailed further
23 medical evidence that is required. We don't know the degree to which it
24 is absolutely established he's been complying with the medical regime
25 imposed. But there is no evidence to suggest that there's going to be
1 this recovery at any -- or any reasonable time.
2 I can't help observe Your Honour's observation about continuing
3 with the rest of the trial if we should consider it appropriate to do so.
4 I come back to my opening observation: The Prosecution is completely
5 opposed to severance, and there would be, as I understand it, having
6 discussed the matter, of course, with the Prosecutor, no contemplation
7 that there would not be full pursuit of the Croatia and Bosnia segments of
8 this trial, whatever the final decision may be about severance of the
9 Kosovo section.
10 JUDGE BONOMY: Well, you see, that rather shows a closed mind on
11 the issue, if I may say so, Mr. Nice, because I would have expected any
12 wise Prosecutor to decide on future conduct of the case in the light of
13 any decision that was made along the way, and you have absolutely no way
14 at the moment of knowing what that decision might be.
15 MR. NICE: Let's be blunt about this --
16 JUDGE ROBINSON: Otherwise one could be forgiven for construing it
17 as a political exercise.
18 MR. NICE: Let's be blunt about this: If the Court is raising as
19 a possibility that, following a conclusion of the Kosovo section in which
20 convictions were returned, the Prosecution might take the view that it
21 didn't then need to continue with the Croatia and Bosnia segments of the
22 trial, let me make it absolutely plain that the Prosecution's duty
23 includes a duty to the victims, and it has no doubts but in the
24 circumstances of the gravity of the matters charged against this accused,
25 including, of course, genocide in respect of Srebrenica, it has no doubt
1 that its duty would be to press ahead with those trials.
2 This is not, if I may say so, a question of a closed mind. This
3 is the question of the Prosecution recognising absolutely what its duties
4 are. This is a person at the very highest level of responsibility. We
5 have called hundreds of witnesses whose family and friends have suffered
6 as a result of what are said to be the gravest crimes committed by and
7 through this man. And there is no question of any form of expediency
8 relieving us of the duty to prosecute those cases. If those cases are not
9 prosecuted to conviction, save for this accused actually being unfit to
10 stand trial, it will be as a result of decisions made but not by the
11 Prosecution. I have to make that position clear.
12 JUDGE BONOMY: Mr. Nice, that is a Court in which accused people
13 may equally be acquitted as well as convicted, and the presumption that
14 you make that conviction is inevitable is one that is unworthy of you.
15 MR. NICE: I didn't make that presumption and I didn't express it
16 that way. I expressed it as a possibility, and that remains my --
17 JUDGE BONOMY: You said: "If these cases are not prosecuted to
18 conviction, save for this accused actually being unfit to stand trial, it
19 will be as a result of decisions made but not by the Prosecution." I find
20 that an utterly offensive submission to be made.
21 MR. NICE: That was a slip of the tongue. I thought you were
22 referring to the earlier passage about Kosovo. I meant, and I will
23 correct it, "prosecuted to conclusion." Of course I meant that, not to
25 JUDGE BONOMY: Thank you for that.
1 JUDGE ROBINSON: Mr. Nice, then I understand you to say --
2 MR. NICE: I'm sure that Your Honour understood that's what I
3 meant, yes.
4 JUDGE ROBINSON: I understand you to say that, irrespective of the
5 outcome of the Kosovo indictment, were it to be severed, that the
6 Prosecutor has already determined that it would proceed with the rest of
7 the case.
8 MR. NICE: Absolutely. There is no question of these cases being
9 dropped. There is, I suppose, one possibility, which, to pick up His
10 Honour Judge Bonomy's point, were the accused to be acquitted and were the
11 findings of acquittal such as to have a spill-over effect, then of course
12 any Prosecutor would have to consider that. That's different from the
13 fundamental decision that's being made as to the appropriateness of
14 continuing with the prosecutions. So obviously that, and that situation
15 alone, is one that might lead to a change, yes. That's all.
16 Before I turn from health to the particular arguments about
17 severance, and in light of our earlier discussion about time for the
18 accused, the remaining time for his Defence is a comparatively limited
19 number of days. And that's another reason why I referred to the question
20 of allowing him, or not, more time. If we are working on the assumption,
21 as I now understand we are - assumption only, nothing more - that he will
22 be entitled to no more time, then by about March of next year, if sittings
23 resume, then the Defence case will be closed for all three indictments.
24 There may be a reopening of the case, there may be rebuttal and rejoinder,
25 but essentially the case for all three indictments will be closed, so far
1 as Defence evidence is concerned, in about March of next year.
2 Severance on the basis of health is being proposed, I understand
3 it, because it is thought that the accused will be more able to manage, or
4 will be able to manage, conclusion of the Kosovo section of the trial in
5 some period of time shorter than that which passes between now and next
6 March. But, in fact, the time required is very short in any event. And
7 it would be, in our respectful submission, wholly unjust to all those with
8 an interest in these proceedings to deny them, deny this Court, the
9 possibility of judgement for Croatia and Bosnia simply because of the
10 saving of the accused from participating in what may be literally just a
11 few weeks of court hearings.
12 Can I turn to the question of severance generally. That's dealt
13 with in -- that's dealt with in paragraphs 42 and on, and in the annexes,
14 or in the second of the two annexes attached.
15 Before I look at how we set out the arguments there, in general,
16 because again I would invite the Chamber to consider this submission in
17 detail, can I remind you of something said by the Appeals Chamber when it
18 dealt with joinder of this trial, or these trials, way back in April of
20 At paragraphs 30 and 31 of its decision, the Appeals Chamber made
21 the following observations: "... any possible prejudice to the accused in
22 facing one trial (and it sees none of any significance)" said the Appeals
23 Chamber, "is completely outweighed by the fact that a substantial body of
24 evidence relevant to the issue of the acts and conduct of the accused
25 himself in the Croatia and Bosnia trial is also relevant to that issue in
1 the Kosovo trial."
2 It went on to say: "If there are to be two separate trials, there
3 would necessarily be a large amount of evidence which would have to be
4 repeated in each."
5 At paragraph 31, it amplified, it may be, that part of its
6 decision, halfway through the paragraph, with these words:
7 "Any words of or conduct by the accused which point to or identify
8 a particular state of mind on his part is relevant to the existence of
9 that state of mind. It does not matter whether such words or conduct
10 precede the time of the crime charged, or succeed it. Provided that such
11 evidence has some probative value, the remoteness of those words or
12 conduct to the time of the crime charged goes to the weight to be afforded
13 to the evidence, not its admissibility. The prosecution would therefore
14 be entitled to prove in the Kosovo trial what is, in effect, its case in
15 the Croatia and Bosnia trial. To have to do so twice would be a grave
16 waste of the scarce resources available, for no discernible benefit."
17 JUDGE BONOMY: I have two questions arising from that, Mr. Nice.
18 The first one is: Do you say that the first of these propositions
19 has borne fruit, that there is a substantial body of evidence relevant to
20 the issue of the acts and conduct of the accused in Croatia and Bosnia
21 which is relevant to Kosovo?
22 MR. NICE: If Your Honour --
23 JUDGE BONOMY: Is that, in fact, the position?
24 MR. NICE: Yes. If Your Honour would be good enough to take the
25 filing which I hope has just been distributed to you and turn to Annex B.
1 In the time available, we have attempted to -- Annex B is -- its contents
2 are confidential. However, what we've done in Annex B is to list all the
3 witnesses called as part of the either Croatia or Bosnia parts of the
4 case. We can't pretend that this is an exhaustive analysis because there
5 wasn't time, but we have attempted, with all of those witnesses, to
6 identify - and if you look at it, you'll see the first one, two, three,
7 four, five, have entries beside them - whether there is in their evidence
8 material that would relate to the Kosovo section of the trial, or as in
9 the one, two, three, four, five, sixth, where we accept that there is
10 either little or no relevance to that --
11 JUDGE BONOMY: That's very helpful, thank you.
12 And the second question I have is this: Surely we've moved on
13 from the stage envisaged in the Appeals Chamber's decision because the
14 evidence has been led, and there's no question of that evidence having to
15 be led twice.
16 MR. NICE: The problem --
17 JUDGE BONOMY: Is that correct or not?
18 MR. NICE: It's certainly correct that we've led the evidence, and
19 thus it is certainly the case that were there to be two separate trials -
20 one for Kosovo and then continuing for Croatia and Bosnia - there would be
21 no need to call that evidence twice. Your Honour is quite right about
22 that. But the point that we are concerned about is a rather different one
23 and is expressed in our filing: If this body of material is available as
24 of evidential value in the Kosovo section of the trial, then there are one
25 of two possibilities: Either, A, the accused must be allowed time and
1 circumstances in which to meet it. That, of course, goes back to the
2 issue of extended time, but nevertheless that's a reality. Or it may be
3 the Chamber would have to try and attempt the impossible, which would be
4 to put aside in its mind all the evidence that was, in a sense, Croatia
5 and Bosnia and that related to Kosovo.
6 Now, with this in mind, and notwithstanding something that the
7 Appeal Chamber said in its decision on joinder, the Chamber may want to
8 have a look at paragraph 46 of the filing, where we cite, cautiously, a
9 very famous recent English case. Cohen and Others, also known as the Blue
10 Arrow Case, and as the Court may remember, this was, I think at the time,
11 said to be the second largest criminal trial in English history, tried by
12 a High Court Judge who, right at the end of the trial, decided to sever
13 the indictment and leave only one of a large number of counts to the jury.
14 He recognised that this would involve the jury having heard evidence now
15 no longer relevant. His direction to them was as favourable to the
16 accused in that case as could be; he told them to ignore evidence coming
17 from that other source or other parts of the evidence that could be
18 adverse to the accused in that case, while asking them to consider
19 evidence that could be beneficial. So there could be no more, it might be
20 thought, appropriate and favourable direction that the learned judge gave
21 to the jury in that case.
22 I read from paragraph 46:
23 "The English Court of Appeal recognised the 'power of the
24 subconscious' and that 'an impression formed when identifying [...]
25 material cannot be removed despite conscious and conscientious efforts to
1 effect total erasure.' Furthermore, the Court of Appeal concluded that
2 'no analysis can escape the fact that the jury were left with a large
3 part of the evidence which had been admitted to them but which had an
4 undetermined and questionable relevance to the one issue which so late had
5 been isolated for decision. In our judgement, this was a material
6 irregularity which must lead to the quashing of those convictions.'"
7 JUDGE ROBINSON: How is that applicable here?
8 MR. NICE: Well, Your Honour, I invite you to say, if you look at
9 the last line: "The Trial Chamber may wish to be cautious before acting
10 in contravention of the general principle sensibly expressed here." For
11 if in separating out for purposes of severance that evidence which is and
12 that evidence which is not specifically relevant to the Kosovo indictment,
13 it separates out evidence that, if our schedule is accurate, separates out
14 as irrelevant evidence that actually has an impact on this accused, his
15 thinking processes, his control of paramilitaries, his use of
16 extrajudicial lines of authority and so on, if such evidence has been
17 given but not actually specifically dealt with by him because cast as
18 irrelevant, why, then, the power of the subconscious to infect even a
19 Chamber of professional Judges exists.
20 And, of course on that last point I know and I think I've referred
21 to --
22 JUDGE ROBINSON: Mr. Nice, I consider that would be wholly
23 unmeritorious submission.
24 JUDGE BONOMY: I agree entirely with Judge Robinson. I take it
25 the English Court of Appeal had some authority for this statement of the
1 effect on the subconscious in general.
2 MR. NICE: I'm not sure that it referred to any authority for
3 that. But, Your Honour, we have --
4 JUDGE BONOMY: The decision is surely based on the fact that a
5 jury in an English trial do not have to give reasons for their decisions
6 and therefore the court can't be confident of the basis on which the jury
7 has reached its decision when so much irrelevant evidence has been heard
8 and they're asked simply to cast it from their minds. Entirely
9 inappropriate here, I would suggest, Mr. Nice.
10 MR. NICE: I respectfully stand by my position, and must tell you
11 this: We've also attempted to find from other jurisdictions authorities
12 that may assist the Chamber's proposition that severance at this late
13 stage of the trial might be possible. We've gone to Germany, where we
14 find that, I think, the Statute would allow it to happen in principle, and
15 we've managed to find some late severance cases, but this is severance by
16 the Appeals Court in Germany, severing a case where the Trial Chamber had
17 already made final decision. So the decision there is broadly similar to,
18 say, an appeals court in a common law jurisdiction sending a trial back
19 for retrial by a differently constituted court.
20 We've looked at the position in the former Yugoslavia, and it's
21 not in the filing because the information came to me very late, we have
22 managed to find some examples of severance. One, I think, of an accused
23 in a multi-accused trial - this is a late severance - where that
24 particular accused fell so sick that he could not attend court or
25 something like that, and therefore it was judged in the interests of the
1 overall trial that his case was taken entirely separately. But save for
2 quite exceptional cases like that and in the time available, we haven't
3 been able to find from parallel -- not parallel, from other jurisdictions,
4 examples of justified late severance of the type here.
5 And although I understand that at least two of the Court are
6 against me, the closest parallel on the facts is, indeed, the Blue Arrow
7 case to which we referred, and I have no hesitation in inviting you, at
8 leisure, to reconsider that.
9 Your Honours, if we then come back to the discussion on severance
10 generally, and if I can invite you, please, to turn to paragraph 42 of our
11 filing, and by headline, I'll take you through the arguments that we there
12 set out.
13 It has to be -- to some degree it may be necessary to consider two
14 alternatives, but it may be, in light of what the Court's been good enough
15 to explain today, that only one of them is really in contemplation. The
16 two alternatives are that if Kosovo was severed, Croatia and Bosnia would
17 be tried by a different Chamber at a later date. The other possibility is
18 that it would be tried by the same Chamber, this Chamber, either
19 immediately after Kosovo evidence finished or at some later stage when
20 Kosovo had been the subject of judgement or even of appeal judgement. And
21 I don't know --
22 JUDGE ROBINSON: Just a minute, Mr. Nice.
23 [Trial Chamber confers]
24 JUDGE ROBINSON: Yes, Mr. Nice.
25 MR. NICE: Your Honours, so if there are the two possibilities to
1 be considered - trial by another Trial Chamber, trial by this Trial
2 Chamber - then probably paragraph 42 can be disregarded.
3 Paragraph 43, if there's a significant gap in time between
4 conclusion of all matters in relation to Kosovo and determination of the
5 remainder of the trial concerning Croatia and Bosnia, there will be an
6 unusually large and potentially prejudicial gap between presentation of
7 Prosecution evidence and presentation of Defence evidence.
8 Paragraph 44, the timetable problems are pretty obviously
9 complicated if the Chamber has any intention of pressing on with the
10 Croatia and Bosnia indictment immediately, because we would then be in
11 this position: The Chamber would be hearing evidence with an open mind,
12 to pick up a phrase used earlier, while at the same time deliberating to
13 final conclusion questions of truth and falsity, guilt or innocence of the
14 accused. Very unsatisfactory.
15 The problem would then arise, if and when the Chamber made its
16 decision one way or another, that decision might be appealed and so the
17 Chamber would, and everybody else would, be acting in a state of suspense
18 on its findings, while listening to evidence on Croatia and Bosnia pending
19 the uncertain date of delivery of an appeals decision. And obviously, to
20 wait for the appeals decision before pressing on with Croatia and Bosnia
21 indictment would, whatever priority was given to that process, involve a
22 very substantial delay between the end of one part of this case and its
23 restart, or the restart of another part -- or the start of another part of
25 I've dealt with paragraph 46, 47, 48 as now amplified. In 49,
1 there's the -- one of the aspects of health and mortality that we have to
2 consider in looking at the overall timetable of this case, and of course
3 severance would lead to inevitably very substantial delay in bringing a
4 judgement for Croatia and Bosnia, denying the advantage of that judgement
5 to the many people of the former Yugoslavia who would, by then, not be
6 alive to learn about it.
7 Paragraph 50 I think I've dealt with, save to say that -- yes,
8 I've dealt with the integrated nature of the case. The Prosecution, as
9 the Court will know, has always expressed a preference for the evidence
10 being given chronologically; Croatia, Bosnia, Kosovo. It was, in fact,
11 the Appeals Chamber on joinder that required the leading of Kosovo
12 evidence first in February 2002, because it said that we couldn't lead
13 Croatia evidence until the various time limits following on the service of
14 the indictment and material in respect of those other indictments was met;
15 and thus it was, and possibly because the Chamber also elected this, that
16 Kosovo went first there.
17 When the defendant -- when the accused came to lead his evidence,
18 I raised again the issue of the order of evidence, expressing a preference
19 that matters might go chronologically, but the Chamber ruled in favour of
20 Kosovo going first. The consequence of that is that, first, there's the
21 evidential problem to which I've already referred. As a matter of
22 interest, it may in a sense now only be historic, but had things been
23 otherwise, had we gone Croatia, Bosnia, Kosovo, we would undoubtedly now
24 be into the Bosnia section of this trial which, in one way, may be thought
25 to be the heart of the case, although the Prosecution, in its earlier
1 finding -- its earlier filing on severance, expressed itself as, of
2 course, neutral as between indictments because it is neutral as between
3 the grave suffering of those victims in all three scenes of war.
4 I've dealt with paragraph 51. And there were further arguments at
5 52 and 53 setting out the other various forms of prejudice that may be
6 suffered. But fundamentally, this has been, from first to last, on the
7 Prosecution's view, a case that has to be seen as a whole. There's the
8 joint criminal enterprise referred to, of course in slightly different
9 ways in the different indictments, but we've gone into that comparatively
10 recently. The case or the cases are fully integrated in so far as they
11 touch on the development of this accused's mental state, the reflection of
12 his mental state from one event to another and to a third, systems of
13 behaviour that he manifested at all three times which were systematic in
14 their disregard for the law. And in our respectful submission, it would
15 be as unjust to the Prosecution as to those who have a separate and non --
16 not immediately judicial interest in the outcome of these proceedings for
17 these indictments to be in any way severed.
18 But, Your Honours, I have to pick up a couple of points in
19 amplification of what I've already said. Going back to the potential
20 saving of time, if any, that would result from severance, His Honour Judge
21 Bonomy said that Kosovo was more or less complete. According to the
22 latest witness list from this accused, and I'm afraid it's not yet filed
23 officially - that's the subject of quite specific complaint in our filing,
24 again for consideration perhaps later - there are 37 witnesses, I think,
25 relating to Kosovo still in his list, in their 65 ter summaries. There
1 are then eight others -- just give me one moment, please.
2 [Prosecution counsel confer]
3 MR. NICE: Yes, I'm grateful. In addition to those 37, we've been
4 able to identify at least eight others that would seem to make them
5 candidates for being able to speak about Kosovo, so that would come to 45
6 altogether. And, of course, any high-ranking witnesses that the accused
7 may wish to call addressing the issue of the joint criminal enterprise in
8 Croatia and Bosnia would have or would be able to have an impact, if this
9 was the accused's plan, on events in Kosovo.
10 So that, in our respectful submission, it may well be that the
11 accused is determined to exhaust all his allowed time with Kosovo evidence
12 - it could easily be from the number of witnesses still listed - and that
13 severance will simply serve no purpose, save to deny a judgement on all of
14 these indictments that can properly be returned, if I go back to the way I
15 made my first assumptions, if time is not to be extended.
16 Now, Your Honours, that sets out our position. We have tried to
17 make it available to the other interested parties in advance by service
18 yesterday of the first version of the filing. I've been invited to go
19 first. I would ask for the opportunity to meet any particular arguments
20 that may be raised as against the proposition that severance should not be
21 allowed. I'm not entirely sure what positions are going to be taken by
22 the other three parties to address you in Court.
23 Thank you.
24 JUDGE ROBINSON: You may find that they're all in agreement with
25 you, Mr. Nice.
1 MR. NICE: They may be, but I'm not sure.
2 JUDGE ROBINSON: Mr. Kay.
3 [Trial Chamber confers]
4 JUDGE ROBINSON: Mr. Kay, we'll hear from the accused before you.
5 THE ACCUSED: [Interpretation] I shall take up far less time than
6 Mr. Nice did.
7 I addressed you two weeks ago with a request that you respect the
8 position of the team of doctors from Russia, France, and Serbia to allow
9 me a period of rest, because that was observed on the basis of their
10 findings that my health had not been stabilised, that the possibility of
11 complications existed, and that a period of rest was indicated for at
12 least a period of six weeks.
13 You asked to hear the views of the Dutch physicians in that
14 regard, and now what is the state of that? What have they found? You
15 have that in the report. Dr. van Dijkman, who is a cardiologist, a
16 specialist, one that you selected here, in his report, wrote, among other
17 things, the following: "[In English] I strongly advise provision for
18 sufficient rest."
19 [Interpretation] And he added: "[In English] And it seemed to me
20 that the six-week rest period is somewhat too much." [Interpretation] So
21 the cardiologist selected by you has confirmed the need for rest. The
22 only question is whether six weeks is somewhat too much. So that is one
23 fact and one point I wish to address.
24 Not a single one of the doctors who considered the report that you
25 supplied them with questioned the findings of the consilium of physicians
1 from Russia, France, and Serbia.
2 Otherwise, on the 15th of November -- and Mr. Nice here noted that
3 I strolled in, and he said that I wasn't able to work. I know exactly
4 what I said: I said that I wasn't feeling well, and that was the first
5 time that I did so in the past four years, the first time I said that in a
6 four-year period, the first time I asked the session to be interrupted
7 because I really didn't feel well. And even then this request of mine was
8 met on your part by keeping me in that small room on this floor an hour
9 and a half while your physician examined me.
10 Now, all the time that you have been questioning the positions
11 taken by the consilium, which has now been confirmed by your own doctors,
12 the doctor at the prison forbid me to come into court, first of all on the
13 12th of November and then on a second occasion on the 21st of November. I
14 had prepared myself to come in here to court. I had put on my shirt and
15 tie, and then I was told there would be no transport and I wasn't able to
16 come. So when Mr. Bonomy says that I didn't come, I didn't come because
17 it was your own doctor who forbid me to come. I would like to make that
18 quite clear.
19 Now, finally, this question that I complained about on the 15th
20 and waited patiently for two months, with growing problems, health
21 problems, that needed to be addressed, the question of my very serious
22 symptoms, very high pressure that I feel in my ears and oversensitivity to
23 sound in general, at the medical centre of the Leiden University,
24 Dr. Dalal examined me fully and wrote an objective finding. When I say
25 "objective," I'm referring to the finding that was written without the
1 active part of the patient, so it was only the passive participation of
2 the patient, since the findings are based on long-term electronic
3 examination, and he told me that those objective findings of his fully
4 confirmed the symptoms that I complain of and the problems -- health
5 problems that I complain of.
6 Therefore, the physicians of my own choice who came here because
7 my state had not improved at all during those two months, and also the
8 doctors you selected yourselves, have come to the same conclusions, to all
9 intents and purposes. Your prison doctor told me that, over the past few
10 days, he supposed that I had managed to amass enough energy to deal with
11 the pressure that I have in my ears because he told me that Dr. Dalal, who
12 is a very highly placed professional in the area, is preparing some sort
13 of solution which will make it easier for me to deal with my health
14 situation or do away with the symptoms at all. So that is a very
15 interesting standpoint from the medical point of view, but I'm not going
16 to comment on it now.
17 JUDGE ROBINSON: Mr. Milosevic, we have not had the benefit of
18 seeing Dr. Dalal's report. You have been referring to it, so I just
19 wanted you to know that.
20 THE ACCUSED: [Interpretation] Mr. Robinson, I have not seen it
21 myself either, but I do know what he told me, after having examined me. I
22 was at the medical center of the university in Leiden, I underwent a
23 lengthy examination there. It was with the help of electronic
24 instruments. It lasts a long time. The patient has to lie down. There
25 are no questions and answers or anything of that kind. It is electronic
1 sounding, using electronic instruments. And then he told me after that
2 examination that his objective findings confirmed the symptoms that I
3 complain of. That's what he told me, and I assume he wrote that in his
5 Dr. Falke came and told me that he has good news for me, that
6 Dr. Dalal considers that he's going to be able to mitigate those symptoms
7 or put them right. I asked him a logical question: When? And he said,
8 Well, in the next few days. We'll do our best to hurry up. So how am I
9 expected to work in the meantime? Well, I -- he said, well, I assume you
10 have accumulated enough strength to persevere, you've lasted that long,
11 and things along those lines. I was in Bronovo Hospital in September for
12 the magnetic resonance test, and before that an ENT specialist saw me.
13 That's been going on for months, for three months, and the situation
14 became worse and worse as time progressed.
15 JUDGE ROBINSON: Mr. Milosevic, I just wanted to clarify that we
16 did not have the report to which you have been referring. Proceed with
17 your submissions on the question --
18 THE ACCUSED: [Interpretation] I don't have it either. Yes, I'll
19 get to that, but it's all linked up.
20 As I was saying, I assume you do have the Dr. van Dijkman's
21 report, do you?
22 JUDGE ROBINSON: Yes, we have Dr. van Dijkman's report.
23 THE ACCUSED: [Interpretation] And it says here -- very well. "[In
24 English] We strongly advise provision for sufficient rest."
25 [Interpretation] That's what it says in his report.
1 JUDGE ROBINSON: But as you noted, he went on to say that he did
2 not consider a period of six weeks to be required.
3 THE ACCUSED: "Somewhat too much." [Interpretation] That's what
4 he said.
5 JUDGE ROBINSON: Yes.
6 THE ACCUSED: [Interpretation] And I pointed that out. I didn't
7 want to quote it one-sidedly, quote what he said one-sidedly.
8 Therefore, gentlemen, it is my right to demand of you to enable me
9 to have the right to protect my own health, and I think it is your duty to
10 protect that right and support it. And that right is over and above all
11 the other preoccupations for which you have convened these proceedings
12 here this morning.
13 So my request is this - I hope it is sufficiently clear - and I
14 request that you enable me to have a pause, that is to say, a period of
15 rest in which to recuperate.
16 I understand that your basic preoccupation ...
17 [Trial Chamber confers]
18 JUDGE ROBINSON: Proceed, Mr. Milosevic.
19 THE ACCUSED: [Interpretation] Yes, I was waiting for you to finish
20 your discussion.
21 Mr. Nice, among other things, mentioned the question of whether I
22 was taking my medicaments or not. That can only be said by somebody who
23 doesn't know what prison procedure is like. You have to take your pills
24 in front of the guards in prison. That does not only apply to me, it
25 applies to everyone. And then the time at which you took your medications
1 is recorded into a log book.
2 I myself requested Falke to carry out a laboratory analysis to see
3 how my medicines were working, within the context of all my general
4 efforts to help myself. And I should like to mention the doctors that I
5 invited came more than two months after I put in a request to Falke and
6 from the time they sent me for my first examination. So all this was
7 organised without upsetting any of your plans.
8 So let's make each other understood there, let's be clear on that
9 point. I don't want to hear any more of the nonsensical kinds of things
10 that Mr. Nice has been saying.
11 Gentlemen, your principal preoccupation is time, and you have been
12 devoting such great effort to the question of time that when you speak of
13 my health state, you are looking at it exclusively, as it says in
14 paragraph 6 of your guidelines, the state of factors that upset these
15 proceedings, the time factors upsetting these proceedings, in your order.
16 So that I think that the protection of health and the measure to
17 which this megalomaniac procedure, with your permission, has been pursued
18 by the opposite side is upsetting my health, that, judging by all factors,
19 doesn't seem to be important to you.
20 I would like to remind you gentlemen of the following: In
21 paragraph 4 of your order, which we have here before us on the table, you
22 put forward the chronology of your efforts to ensure expediency of this
23 trial. I'm not going to quote those passages because you have them in
24 front of you. However, it is interesting to note, and also indicative,
25 that that chronology of events - that is to say, that enormous wish to
1 have expediency - begins in July 2004, and that is what your chronology
2 shows, which is a point in time when it is up to me to present my Defence
3 case. And the time I was given by you was 150 days, and you said that
4 that was the same as the 300 days allocated to the other side. Several
5 weeks ago, I mentioned here that the number of hours which I was given by
6 the opposite side shows the sum of -- which is lacking in 72 days. You
7 didn't allow me to continue along those lines, so I stopped, and I'm not
8 going to talk about that now either, but I'd just like to say that that
9 remains as a fact.
10 So your concerns over expediency and efficiency started when my
11 half time began, and to my detriment. And the speed at which the
12 proceedings have been evolving became important when it came to my
13 presentation of facts, and took precedence over those facts and precedence
14 over my state of health as well.
15 Now, had you expressed such concern over expediency during the
16 time of Nice's and Del Ponte's Prosecution case, then you would not have
17 allowed different witnesses to appear. Mr. Robinson, Mr. Kwon, you will
18 remember full well that we had witnesses here such some institute
19 established in haste in the space of a few days, right near here in
20 Amsterdam, and they held a report about genocide against the Armenians in
21 Turkey and the genocide in Rwanda and some other third place, I can't
22 remember which now, and that Dutchman talked about that at length, and you
23 would never have allowed things like that even to be presented here at a
24 place like this, including many other irrelevant witnesses. So we heard
25 about the Armenians, but we didn't hear about examples which the Dutch
1 institute and the only Dutch word that everybody knows in the world, the
2 word "apartheid," how that came into being. They didn't deal with the
3 question of apartheid, but they did deal with the Armenians in Turkey and
4 Turks. So that was part of his procedure, let alone other witnesses who
5 came to waste time here and talk about minor issues.
6 So you showed an enormous amount of understanding for the
7 megalomaniac ambitions of the opposite side to --
8 Yes, Mr. Robinson.
9 JUDGE ROBINSON: You are now wasting our time. We are here to
10 consider two issues: The question of severance and the medical -- and
11 your medical condition. Confine your submissions to those two issues.
12 THE ACCUSED: [Interpretation] Well, Mr. Robinson, you did not
13 interrupt Mr. Nice when he was making the most absurd claims here, and I
14 think that these absurd claims of his can be responded to --
15 JUDGE ROBINSON: If you're going to continue like this, I will
17 THE ACCUSED: [Interpretation] All right.
18 JUDGE ROBINSON: You told us you wish to make submissions. If I
19 did not interrupt Mr. Nice, it was because there was no reason to
20 interrupt him. Let us proceed.
21 THE ACCUSED: [Interpretation] Let us proceed. I'm referring to
22 what it says here in your own decision concerning the order that we're
23 discussing today. So the time lost, you say, due to my health, in the
24 period when you started expressing this intense interest in the
25 expeditiousness of the trial.
1 I want to draw your attention to the fact that this time that you
2 call lost or wasted is much shorter than time wasted due to another
3 matter, and that is when you unlawfully took away my right to
4 self-representation last year. Because of what you did, some of the
5 deadlines that you had set yourselves and that you mention in this
6 chronology were simply not met at the moment when my Defence case finally
7 started after the decision made by that Appeals Chamber of yours.
8 So, gentlemen, do not blame my health - and I'm not to be blamed
9 for the state of my health - for time wasted, when you're the ones who
10 wasted the time. As for all the time that's been taken up, and in terms
11 of my health, the other side there is also to be blamed, because of the
12 torture that they have been exposing me to due to their megalomaniac
13 designs. And you never oppose that.
14 In paragraph 5 from the end of your order, your scheduling order
15 for this hearing, today's hearing, you deal with the positions taken by
16 the Appeals Chamber. I think that, due to the importance of what you note
17 here, it is necessary to see what it says there in paragraph 26. It says
18 that: "[In English] If the prosecution fails to discharge this
19 responsibility, the Trial Chamber has sufficient powers under the Rules of
20 Procedure and Evidence to order the prosecution to reduce its list of
21 witnesses to ensure that the trial remains as manageable as possible.
22 Finally, if with the benefit of hindsight it becomes apparent to the Trial
23 Chamber that the trial has developed in such a way as to become
24 unmanageable - especially if, for example, the prosecution is either
25 incapable or unwilling to exercise the responsibility which it bears to
1 exercise restraint in relation to the evidence it produces - it will still
2 be open to the Trial Chamber at that stage -" [Interpretation] I emphasise
3 that - "at that stage," just like I pointed out the Prosecution a moment
4 ago - "[In English] to order a severance of the charges arising out of one
5 or more of the three areas in the former Yugoslavia."
6 [Interpretation] So what is referred to here are the resources
7 that you have available if the other side, and that is what is emphasised,
8 does not act in accordance with its obligation in paragraph 25, where it
9 says that the Prosecution has a great responsibility to prevent the trial
10 from being unmanageable due to an overabundance of material, et cetera, et
11 cetera. So your very own Chamber here says that: "The prosecution will
12 bear a heavy responsibility to ensure that the single trial ..." et
13 cetera, et cetera, that the trial is manageable.
14 It's not only that example, but also the systematic interpretation
15 of what the Appeals Chamber said in the context where the severance of
16 trials is discussed. Obviously, they took into account the situation that
17 came to pass a long time ago because of the megalomaniac ambitions of the
18 Prosecution in these proceedings that you call a trial.
19 I also want to note here that the Appeals Chamber did not look at
20 my health at all, and I don't think that they needed to look at it at all,
21 at that time, that is. But not even bearing that in mind, they emphasised
22 need to rest. Please, in paragraph 27, it says: "[In English] As has
23 been shown to be necessary in all long trials before this Tribunal, the
24 Trial Chamber will from time to time have to take a break in the hearing
25 of evidence to enable the parties to marshal their forces and, if need be,
1 for the unrepresented accused to rest from the work involved."
2 [Interpretation] So, gentlemen, the only effect that my health can
3 have on these proceedings is the fact that breaks are taken if my health
4 gets worse, or, with any luck, to have proper short rest periods so that
5 any worsening of my health is prevented. However, I am quoting your own
6 decision when you say that these are factors that constantly impede the
7 trial. And I have read out paragraph 26 to you, and you say -- you quote
8 paragraph 26 when you say that the trial becomes unmanageable, but it is
9 the other way around. I have quoted paragraph 26 to you, and the Appeals
10 Chamber has instructed you how to make the trial more manageable: To give
11 breaks from time to time, and so on and so forth.
12 Now, gentlemen, do you really think that somebody would be crazy
13 enough to believe that the Appeals Chamber would, in paragraph 26,
14 instruct measures to be taken that would be in contravention of paragraph
15 26 of their own decision? Do you think that your colleagues are that
16 unreasonable that they call for pauses in the trial, breaks in the trial,
17 and that that is counter-productive? That's the way it should be,
18 according to what Mr. Nice said here too. Of course, that's wrong. The
19 right way of interpreting it is that by severing the trial, you are
20 actually acting against the decision of the Appeals Chamber and you are
21 incorrectly interpreting their words. So that would be an abuse of a
22 document in order to violate that same document, which is quite
23 unbelievable. It is illogical and unlawful acrobatics.
24 Also, for years, you have been violating --
25 JUDGE BONOMY: Mr. Milosevic, what you ignore entirely in that
1 submission is that these words of the Appeal Chamber were pronounced when
2 this trial could sit five days a week, and elaborate arrangements have
3 been made to give you rest throughout the period since 2003.
4 THE ACCUSED: [Interpretation] When was it that you gave me a
5 break, a rest? Just remind me, please.
6 JUDGE BONOMY: Every week you get a rest, because you can only do
7 three days a week.
8 THE ACCUSED: [Interpretation] No one works five days a week here,
9 especially for such a long period of time, so please don't count on me --
10 please, in Dr. Van Dijkman's report, in a part that I did not quote, in
11 the paragraph that precedes the one that I quoted, it says: "In view of
12 the current work schedule [In English] it is understandable -- In view of
13 the current work schedule, it is understandable that the patient feels
14 fatigued. He has three court sessions per week and spends the rest of the
15 time preparing for them, including interviewing witnesses."
16 [Interpretation] So how is it that you think that I can interview
17 witnesses during these remaining days if I'm supposed to get some rest
19 JUDGE ROBINSON: You can get the rest -- you could get the rest if
20 you utilised the services that are available to you. You do not have to
21 interview witnesses. That could be done by assigned counsel. You have
22 chosen to do that.
23 THE ACCUSED: [Interpretation] I have seen how the assigned counsel
24 work with witnesses when you made it possible for them to question
25 witnesses, by force, and I concluded that it was absolutely inadequate.
1 JUDGE ROBINSON: Mr. Milosevic, what comes to mind -- what comes
2 to my mind are the words of Marc Antony in his funeral oration for Julius
3 Caesar: "Ingratitude, more strong than traitors' arms ..." You are an
4 ingrate in relation to the work of the assigned counsel and the help they
5 have given you. It does you no credit for taking that approach to
6 assigned counsel.
8 THE ACCUSED: [Interpretation] I do not wish to insult Ms. Higgins
9 or Mr. Kay, not in the least bit. But they know full well that they know
10 very little about the situation in the territory of the former Yugoslavia,
11 especially regarding issues that I am being indicted for here by Mr. Nice
12 and this entire side that he represents. Mr. Nice made absurd assertions
13 here, allegations regarding my alleged participation in various things in
14 Bosnia, and during the presentation of his case, he did not give a shred
15 of evidence about my alleged crimes in Bosnia-Herzegovina. He talked
16 about events that occurred in Bosnia-Herzegovina. But, on the other hand,
17 there is ample evidence that my greatest efforts over all those years was
18 to attain peace, and I was given credit for that by all sorts of Western
19 leaders as the person who gave the greatest contribution to that and --
20 JUDGE ROBINSON: Mr. Milosevic, I have stopped you. I want
21 submissions on the two issues before us: Severance and, to the extent
22 relevant, your health.
23 We'll take an adjournment for 20 minutes.
24 --- Recess taken at 10.39 a.m.
25 --- On resuming at 11.07 a.m.
1 JUDGE ROBINSON: Just to make sure that the transcript is correct
2 in relation to my reference to Marc Antony, it's: "Ingratitude, more
3 strong than traitors' arms ..." You can at least get it correct in the
5 Mr. Milosevic, there's a matter in which I think you can help us.
6 You have 37 or 45 witnesses outstanding for Kosovo. How, in the light of
7 the remaining days left for your case, do you plan to manage your case so
8 as to complete Kosovo as well as Bosnia and Croatia? And, please, I don't
9 want to hear the refrain that this merely shows how little time or how
10 inadequate is the time that has been allocated to you.
11 THE INTERPRETER: Microphone, please.
12 THE ACCUSED: [Interpretation] The microphone wasn't switched on.
13 What I was saying was this: Mr. Robinson, the question of time you seem
14 to be placing in first place, so I assume you won't have anything against
15 me having comments to make with respect to that issue.
16 I should like to remind you, Mr. Robinson, that a certain amount
17 of time ago, I did indicate the need to give me adequate time. Had you
18 personally -- and that you personally said at the time that it was too
19 early to discuss the matter, that is to say, to give me adequate time.
20 Now, to carry on from where you interrupted with your comment that
21 I should use imposed counsel, let me present my position and you do with
22 it what you will and make your own conclusions as you desire. But I don't
23 think you'll be able to topple that position.
24 It is my right to represent myself, and that right emanates from
25 international law and is contained in your Statute as well. Therefore,
1 you are duty-bound to enable me to make effective use of that right. That
2 right cannot be made up for by some sort of assigned or imposed counsel.
3 It is my right to be able to present my own Defence, and it is grounded in
4 the documents that are well known to you all. So it is your duty to
5 enable me to use that right effectively and not some fictitious right
6 which is accorded me in formal terms whereas it is withheld in realistic
7 terms. If I have that right, then you must enable me to use it
8 effectively and to avail myself of that right.
9 And the comment that I don't have to proof witnesses myself is the
10 same as saying that I don't have to avail myself of the right accorded me
11 and that I have chosen to use my right to my own detriment. So the
12 substance of the matter is that I should be allowed to use that right
14 Now, with regard to the question of time, once again, Mr. Nice
15 quoted different documents and so you'll allow me to do the same, to quote
16 from various documents. And I have sufficient examples for you, although
17 in Serbian because it is a Serbian translation, it is a statement by a
18 group of members of the Russian Association of International Law for
19 Monitoring the Process of the Prosecutor versus Slobodan Milosevic in the
20 International Tribunal for the former Yugoslavia, which a few days ago was
21 published by the Moscow Journal of International Law and it was translated
22 from that Moscow Journal. It is the largest and most important forum of
23 that nature in Russia, and the most important journal for international
24 law in Russia as well.
25 Among others, in point 1, which they discuss, it is the right of
1 the accused to have sufficient time. Now, this term "sufficient time"
2 means for the preparation of his Defence. That has been extracted from
3 "international documents," and this is what it says:
4 "After the signing of the first indictment raised against
5 S. Milosevic by the Prosecutor up until the start of the Prosecution case,
6 two years elapsed and eight months. Throughout that time, time was used
7 to prepare the indictment. Preparations of the indictment went on eight
8 months after the accused was in prison. Now, for the preparation of the
9 Defence case, Slobodan Milosevic was given three months."
10 And then they go on to quote your order concerning the preparation
11 and presentation of the Defence case of September 17th, 2003.
12 "After an extension of the time limit with respect to the
13 accused's health, the Defence case, as a whole, amounted to six months,
14 but that extended time was not used to prepare the Defence because the
15 Registry of the Tribunal denied Milosevic the right to meet with witnesses
16 in connection with his health. It is quite clear that the time for the
17 preparation of the Defence case in the most complex international crimes
18 contained in 66 charges and 1.000 events in prison conditions is
19 inadequate. In keeping with the principle of fair play and equality of
20 arms, the accused must be accorded at least as much time for his Defence
21 case as the Prosecution had for the Prosecution case from the time the
22 indictment was signed until the case went to trial. In conformity with
23 giving the accused sufficient time for preparation of his Defence case,
24 and taking into consideration the complexity of the case itself,
25 S. Milosevic must be given adequate time, and six months cannot be termed
1 adequate time. The request by the accused to be granted more time was
2 turned down by the Appeals Chamber as well, who said that, 'choosing to
3 represent himself, the accused has given up the right of enjoying the
4 benefits of the Defence team set up for him,' and that he himself, 'will
5 bear the brunt of not accepting the services of assigned counsel.'"
6 That is the decision of January 2004. In this connection, the
7 Appeals Chamber referred to four decisions made by national courts, but it
8 forgot to refer to the norms of international law which are in force, and
9 the most senior Chamber of the Tribunal, which was duty-bound to protect
10 the rights of the accused, confirmed the unlawful decision by the Trial
11 Chamber to the detriment of the accused for having opted to represent
12 himself without providing legal arguments in sufficient scope.
13 "Apart from that, this right is part of the rights that do not
14 have a time limit," and it says, "see Article 3 of international --
15 covenant of international laws where everybody has the right, as a
16 minimum, to the following guarantees and conditions." And the conclusion
17 is, of this group, that is to say, the group of the Russian International
18 Law Association, is that: "The Tribunal has violated the rights of the
19 accused to be given sufficient time to prepare his defence case."
20 I won't continue quoting. I will ask you to take up this
21 decision, and I'm sure your translators will be able to translate it into
22 English for you. They contain many other points, but I think it would be
23 beneficial for you to read it.
24 JUDGE ROBINSON: Did I understand you correctly to read from the
25 Journal of International Lawyers that this right is part of the rights
1 that do not have a time limit? Is that what you read?
2 THE INTERPRETER: Statute of limitations, interpreter's note.
3 THE ACCUSED: [Interpretation] I read what it says exactly in that
4 statement. I'll go back to that. Let me just see.
5 JUDGE ROBINSON: What right are they referring to? Is it the
6 right to a defence? Is it the right of an accused to put up his defence?
7 THE ACCUSED: [Interpretation] The right of the accused, and then
8 they quote "to have sufficient time and possibility for preparation of his
9 defence." That is point 1, which I quoted.
10 JUDGE ROBINSON: And is that the right which they say is without a
11 time limit? I'm trying to understand what you just read.
12 THE ACCUSED: [Interpretation] Well, Mr. Robinson, they don't say
13 that it has a time limit. What they say is, the amount of time that was
14 necessary and accorded to the opposite side for writing the indictment,
15 and claim that I must be given that same amount of time. And they quoted
16 exactly when the indictment was signed and how long it took them to
17 prepare for the Prosecution case to go ahead with the trial. So it's no
18 fluid category that we're dealing with here, without boundaries. They are
19 talking and comparing the time that the other side had at its disposal and
20 the time accorded to me by you. And those six months, or barely six
21 months, cannot be compared to a period of three years, let alone compared
22 to the fact that I am managing my Defence myself, whereas Del Ponte and
23 Nice have an enormous machinery at their disposal, including all their
24 services and experts and so on and so forth.
25 JUDGE ROBINSON: Thank you.
1 THE ACCUSED: [Interpretation] And when I mentioned -- Mr.
2 Robinson, when I mentioned the NATO pact officers, let me remind you,
3 since Mr. Nice is talking about proof and evidence, I would like to remind
4 you that their military expert, Mr. Theunens, said here on behalf of the
5 whole group working on the subject matter, that they studied thousands of
6 documents, and I asked him here, "Do you have any document of mine?" if
7 you remember, Mr. Robinson, and he said, "Yes, I do." And I asked him to
8 place it on the overhead projector.
9 JUDGE ROBINSON: Mr. Milosevic --
10 THE ACCUSED: [Interpretation] Do you remember that?
11 JUDGE ROBINSON: -- I can understand the submission that an accused
12 person is entitled to sufficient time, but I do not accept a submission
13 that there is no time limit for putting a defence. You're entitled to a
14 reasonable time. If your Russian association of lawyers said that there
15 is no time limit in putting a defence, and if by that they meant that an
16 accused person would be entitled to put a defence ad infinitum, I utterly
17 reject that. You're entitled to a reasonable time to put your Defence.
19 THE ACCUSED: [Interpretation] Mr. Robinson, in responding to your
20 question, I precisely said that that is not what they claim, that the
21 accused has limitless rights. All they claim is that the accused must be
22 given the same amount of time as given to the Prosecution for preparing
23 the indictment. And they were able to establish that time in quite exact
24 terms by comparing the date in which the indictment was raised and the
25 date when the trial started here, and that was a period of time that was
1 exactly established, let alone the fact that before they actually wrote
2 the indictment, they had to have done some preparatory work as well.
3 So you did not understand the explanation and quotation that I
4 read out to you properly, so I suggest that you take this report and read
5 it for yourself, because I think that they are leading international
6 lawyers who took part in writing it, and I wish to add to this that we are
7 not only speaking -- although this is a statement by the International
8 Russian Federation legal minds, but of course there is a series of broad
9 circles of experts for international law from other countries, including
10 those countries who wrote the petition to Kofi Annan with respect to your
11 conduct towards me from some 30-odd countries that signed it and went to
12 visit the Secretary-General of the Security Council. So this is a
13 position that is widespread in the world, and it would suffice, if I were
14 in your place, if I were to read this position elaborated by the experts
15 from the Russian Federation that rank among the top professionals in the
16 world in their field.
17 As I was saying - let me continue - the present situation is the
18 direct result of a megalomaniac ambition by the other side and most
19 probably by the desire to have the quantity of material replace any
20 serious proof and evidence against me. Quantity over quality. Because
21 you cannot have evidence and valid proof for untruths. And you have
22 supported the other side through your tolerant relationship with them, and
23 asking them to be limited in their scope.
24 I am the main victim of having been bombed by various documents,
25 material witnesses, and so on, that the opposite side has been allowed to
1 present with the go-ahead from you. I think that this is a form of
2 torture and a form of cynicism to put that burden of responsibility upon
3 me, all the more so if this is linked to my health situation, which has
4 been significantly impaired because of the torture I have been exposed to.
5 And I would like to remind you that when General Stevanovic testified
6 here, in some context or other - it's not important now; we can look at
7 the transcript if we want to see the exact context - I said that the
8 opposite side served over a million pages of material on me. Mr. Nice
9 intervened at that point and said it was only 600.000, and with respect to
10 the others it was copies supplied twice.
11 Now, without entering into whether I was served double copies, and
12 would have to read through all the material to see whether that was true,
13 and there's no justification for that either, but nonetheless it's an
14 enormous amount of material. And that every participant in this trial had
15 to read 500 to 1.000 pages per day every day over the space of three and a
16 half years, without exception and without all their other obligations.
17 And a normal human being is quite certainly not able to read even a small
18 portion of that. And as I believe that nobody could claim to be a
19 superpowerful human in any sense here, then we come to the conclusion that
20 the situation is quite unrealistic and in this hall for three and a half
21 years we have had a group of people taking part in something that we can
22 call or is called a trial, whereas none of the participants in the
23 proceedings knows what it says in the files on the basis of which the
24 discussions are being held here.
25 Please, to a certain extent, it is not only that that people don't
1 know about; they don't know what the other side is prosecuting me for. I
2 would particularly like to highlight the issue of a Greater Serbia in that
3 context. This was represented by the other side four years ago when they
4 asked for a joinder of trials, that that was the red thread bringing all
5 parts of the case together, and the Trial Chamber agreed to that. So then
6 you cannot talk about severing the case without dealing with the destiny
7 of that particular issue.
8 On the 25th of August this year, Mr. Nice, after three and a half
9 years of trial, said that he was not prosecuting me on account of a
10 Greater Serbia, and he ascribed that idea to me from the very outset, from
11 his introductory remarks and then through the testimony of almost half or
12 even more than half of his witnesses who -- his witnesses, who spoke of a
13 Greater Serbia as my objective and answered questions put by him to them
14 in that context.
15 So how can you talk about severance, then, before giving answers
16 to certain questions? What is the fate of these proceedings that have
17 been going on for over three years where you and I, and probably the other
18 side, thought that I was being tried for a Greater Serbia, which was the
19 objective of some kind of alleged joint criminal enterprise. So that was
20 what we tried to deal with when putting questions to the witnesses and in
21 dealing with all the evidence, because that is what Mr. Nice was alleging
22 through his witnesses.
23 So, then, what is the legal validity of that part of the
24 proceedings, when we were all being deluded into believing that this was
25 the main objective of the Prosecution? So what's the point of all these
1 witnesses who talked about a Greater Serbia as my primary goal here? Are
2 you going to take that out of the evidence, the body of evidence, or are
3 you going to let me examine them further?
4 Also, what about this joint criminal enterprise? And what would
5 its objective be after this change? And what is this phantom of a joint
6 criminal enterprise that is being discussed here? And what is it that is
7 exactly being alleged? People who are sitting here, including me,
8 including you, on the one hand, simply cannot know all the things that are
9 referred to in all these documents that Mr. Nice served - a million pages,
10 no less - and no one knows what the Prosecutor is prosecuting, including
11 the Prosecutor herself. She doesn't know it either. I think that even
12 Franz Kafka would feel that he did not have great imagination compared to
14 So now, gentlemen, after almost four years of a joined trial,
15 after omitting to exercise your own responsibilities and duties and to
16 bridle the other side, as instructed by the Appeals Chamber, so perhaps
17 you could have even severed the trial at some point earlier on, but now
18 you want to do it four years later. Four years later. And during those
19 four years, this was a whole, an entity, not only from the point of view
20 of process, but also from the material point of view, where the other side
21 presented its own body of evidence as a whole and then I based my Defence
22 case on that single entity.
23 And since there is this time pressure that you've been insisting
24 upon all the time, the crossover that you say, witnesses that testify
25 about Kosovo and Bosnia and Croatia, now I have to make a selection, it
1 appears, with a great deal of effort, I must say.
2 Immediately, there is another question that comes to mind: As for
3 these witnesses that, for the most part, pertain to Kosovo, but some of
4 them also have to do with Bosnia and Croatia, include witnesses that I
5 asked you to call: Clinton, Clark. And during his testimony here, you
6 did not allow me to put questions in relation to the war that he commanded
7 and the book that he wrote about it. And these are key witnesses. For
8 over a year, you've been in correspondence with them. It is high time for
9 you to understand that they will not come here without your order.
10 JUDGE ROBINSON: Mr. Milosevic, that, again, is a matter in
11 relation to which you owe a great debt of gratitude to assigned counsel.
12 Through their action, through their professionalism, we are considering
13 now a motion to subpoena certain witnesses, and without their
14 intervention, without their help, we would not have been considering this.
15 THE ACCUSED: [Interpretation] Yes, I know about that. I know
16 about that, Mr. Robinson.
17 So severance would create the following situation: That they
18 prosecute me for one thing, and halfway, I start defending myself from
19 other things that I'm being accused of. I have to defend myself a bit
20 from one and a bit from the other, and then what I do here, when
21 presenting the truth, is being sabotaged in practical terms; it is being
22 truncated. And the effect of the fact that Mr. Nice changes his position
23 with regard to a Greater Serbia halfway multiplies the effort involved.
24 What he said is true, that, as regards Kosovo, then, you would be
25 in a position to decide, under the impression of many years of having
1 heard senseless and totally baseless accusations related to Bosnia and
2 Croatia. He talks about victims here. Let me see one single victim of
3 mine here. He never established any link whatsoever between what he
4 presented and the charges that he's bringing against me. These victims do
5 not deserve this. They do not deserve having the wrong people being
6 accused of things done against them.
7 Mr. Nice mentioned Annex B. I don't have time to read it, but
8 let's have a look at it. The first witness here, Stjepan Mesic, the
9 current president of Croatia, who testified here, the first person
10 mentioned in Annex B, the famous Stjepan Mesic, who did his very best to
11 break up Yugoslavia, who stated himself that he carried out his job, that
12 Yugoslavia was no more. And he says here "[In English] ... where he said
13 ..." [Interpretation] and so on and so forth, and so on and so forth.
14 Nonsense, sheer nonsense. And this Mesic got that from this distorted and
15 forged BBC TV show which seems to be Mr. Nice's lodestar.
16 Indictments should be based on facts, not on comic books, TV
17 shows, what have you not. So this is kitsch, really, the entire
18 Prosecution case, both in terms of the vehicles used and the witnesses
19 called. Kitsch.
20 So now, if you wanted to check this, it would be as if somebody
21 were playing a game of football for 50 minutes, and then in the second
22 half he starts playing basketball. It's even worse, because the adverse
23 effects are only on my side. It is only the Defence that has to deal with
24 the negative effects. So it becomes even more senseless because the
25 change of the terms and conditions is only to my detriment.
1 And I wish to say --
2 JUDGE ROBINSON: Just a minute, Mr. Milosevic.
3 [Trial Chamber confers]
4 JUDGE ROBINSON: Yes, Mr. Milosevic.
5 THE ACCUSED: [Interpretation] So the proposal to sever the trial
6 is so pointless, but I think that you yourselves show the senselessness
7 through your own words: "[In English] ... for the Trial Chamber to sever
8 the Kosovo Indictment, conclude that part of the trial and render its
9 Judgement thereon ..."
10 Gentlemen, "part of the trial" are the words that you clearly use
11 here, so the objective should be to conclude part of the trial. But parts
12 of the trial cannot be concluded. Parts cannot be concluded. Parts of
13 the trial cannot be concluded. Trials have a Prosecution case and a
14 Defence case and then they can be concluded, but to conclude part of a
15 trial is basically an abuse of trial. Or what would that mean, to
16 conclude part of a trial? [In English] A mistrial.
17 [Interpretation] I think that this Kafkaesque situation that I
18 just described, if there were to be a severance, would make the entire
19 situation even more absurd and more incredible. Of course, again, you're
20 going to decide as you wish, and then you won't understand why, throughout
21 the world, this trial of yours is being treated as an ordinary farce.
22 So, gentlemen, I'm opposed to your order, and the first thing I
23 ask you to do is to return to me my right to health, to make it possible
24 for me to have a break to recuperate.
25 And in relation to what Mr. Bonomy said when he expressed his
1 astonishment when Mr. Nice was referring to what the public was talking
2 about, I wish to remind you of the following: In all the paragraphs of
3 the Kosovo indictment where alleged crimes are referred to over the
4 allegedly unarmed Albanians, it says: "The forces of the Federal Republic
5 of Yugoslavia and the Republic of Serbia" did such and such a thing. In
6 all paragraphs, without exception. All of Serbia, and everyone in the
7 international public knows that the forces of the FRY of Serbia were
8 protecting, defending the country from terrorism and foreign aggression.
9 That is what is perfectly clear.
10 Now, this phrase which is used in every paragraph pertaining to
11 the alleged crimes, "the forces of the FRY and Serbia," you are supposed
12 to make a judgement, when lo and behold, the negotiations on the final
13 status of Kosovo and Metohija are about to start, not to mention the fact
14 that as a precondition for bringing the war to an end, we got the firmest
15 possible international guarantees for the territorial integrity and
16 sovereignty of the country. So what a coincidence. Is there anyone that
17 you can dissuade that that is not the aim of those that you receive orders
18 from, that it is the forces of the FRY and Serbia that have to be found
19 guilty for defending their own territory so that those who really did this
20 would not stand accused but rather achieve their geopolitical objectives.
21 So that is quite clearly present in the public opinion. And this is a
22 coincidence that everybody noticed immediately. It was not necessary for
23 anyone to explain it to them.
24 JUDGE BONOMY: Mr. Milosevic, I wonder if you can help me and tell
25 me how these instructions are conveyed to me, because I'm obviously
1 missing some part of the information that you seem to consider as
2 essential to my judgement of this matter. How is it I get my orders?
3 Where do they come from? You who so proudly denies the allegations
4 against you about conveying orders to others on the basis of no
5 information, on no evidence, what is the evidence you suggest indicates
6 that I receive orders from somewhere?
7 THE ACCUSED: [Interpretation] Mr. Bonomy, this entire Court was
8 envisaged as an instrument of war against my country. It was founded
9 illegally on the basis of an illegal decision and carried through by the
10 forces that waged war against my country. There is just one thing that is
11 true here: It is true that there is a joint criminal enterprise, but not
12 in Belgrade, not in Yugoslavia as its center, but those, who, in a war
13 that was waged in Yugoslavia from 1991 onwards, destroyed Yugoslavia.
14 Yugoslavia did not disintegrate by --
15 JUDGE BONOMY: You fail to answer my question. Please answer the
16 question rather than embark on a political diatribe.
17 THE ACCUSED: [Interpretation] Mr. Robinson -- or, rather,
18 Mr. Bonomy, I'm not making political speeches here at all. I think that
19 you are in the service of those who committed crimes against my country
20 and against my people, and you're receiving a salary from them.
21 JUDGE BONOMY: You're refusing to answer the question, are you?
22 THE ACCUSED: [Interpretation] No, no, I'm not refusing. Do you
23 want to tell me who pays your salary? Do you wish to claim that you
24 receive a salary from the United Nations? Who finances this Court,
25 Mr. Bonomy? Who established this Court, Mr. Bonomy? Who effected an
1 aggression against my country, Mr. Bonomy? Your country. And who am I
2 asking to come in to testify? Your presidents and Prime Ministers.
3 JUDGE BONOMY: Are you suggesting I am not paid by the United
5 THE ACCUSED: [Interpretation] I claim that, Mr. Bonomy, because
6 the United Nations are -- finance this illegal Tribunal of yours. It's
7 financed from all manner of sources. I have enumerated some of them.
8 Now, whether you, in formal terms, whether you, in formal terms, receive a
9 salary via this institution which calls itself a United Nations Tribunal
10 is quite immaterial as far as I'm concerned.
11 JUDGE BONOMY: Well, now you move on to another issue when you're
12 proved to be wrong. So let's concentrate on the issue that you're
13 addressing; the question of severance.
14 THE ACCUSED: [Interpretation] Therefore, gentlemen, as I've
15 already told you, I am opposed to severance because I would say that was
16 -- that was a war, it was one war. I said Yugoslavia did not
17 disintegrate or disappear in some manner, but it was destroyed in a
18 planned manner, forcefully, through a war, and that war is still being
19 waged, is still going on. And one of the instruments of this war is your
20 illegal Tribunal.
21 Let me say straight away, as far as your judgements are concerned
22 and rulings in joinders or not joinders, I'm not afraid of them at all,
23 because if you judge according to the law and the truth, then there would
24 never have been this trial in the first place. But as we do have a trial,
25 it can end only in one way: A decision on the non-existence of
1 culpability. And if you don't rule based on justice and truth, then your
2 ruling will disintegrate and will burst like a bubble of soap, because the
3 court of the world and the court of justice and the truth is stronger than
4 any other court. It is up to each one of us, and each one of you
5 gentlemen, to opt and choose what place we're going to have before that
6 court of history, and what its decision will be. So don't harbour any
7 illusions on that score.
8 Therefore, as I said, I am opposed to severance. I demand that I
9 be given a rest period to recuperate. I stress that today, too, I came in
10 in a very poor state of health, extremely poor, but I did come in so that
11 we can continue the proceedings. Therefore, I demand that you consider my
12 request to give me a break, a period of rest. And as for severance or
13 non-severance, I've stated my views on that matter, too.
14 JUDGE ROBINSON: Thank you, Mr. Milosevic.
15 Mr. Kay.
16 MR. KAY: Thank you, Your Honours.
17 The submissions of the accused center on two issues that are of
18 great importance to him, the first being his health and the second being
19 the scope and scale of the case against him and the materials that he has
20 had to deal with. And it was clear that his case has been conducted by
21 him in a fairly continuous manner for almost a year, when a new
22 complication in his health arose, which is not an apparent illness, as
23 described by the Prosecution, and there is not a single reference to it
24 being an apparent illness. It is a genuine health condition, backed up by
25 medical reports, and I understand the report that was discussed this
1 morning will be ready from the translation department this afternoon for
2 Your Honours to consider the specialist report concerning the audiology of
3 the accused.
4 When we started this trial, it was the Prosecution who sought the
5 joinder of all three indictments, although they had not themselves drafted
6 initially joined indictments. They had drafted distinct and separate --
7 THE ACCUSED: [Interpretation] Mr. Robinson.
8 JUDGE ROBINSON: Mr. Milosevic.
9 THE ACCUSED: [Interpretation] Let me just stress for the public
10 listening to this in the Serbian language, the interpretation into Serbian
11 was that the Defence asked for a joinder of indictments, whereas I see
12 that Mr. Kay, in fact, said it was the Prosecution who sought the joinder
13 of all three indictments.
14 JUDGE ROBINSON: That's quite clear. That's quite clear, thanks.
15 MR. KAY: Thank you. I'm grateful. And that is clear. It was a
16 Prosecution initiative which the Trial Chamber did not find in favour of,
17 but there was an appeals hearing, and representations were made at that
18 stage concerning the shape and form of the trial. And we're now dealing
19 with the year of 2001, 2002, some considerable time ago, and at a stage
20 when the shape and look of the trial was unable to be predicted.
21 In that judgement by the Appeals Chamber, it was clear that the
22 Chamber was concerned with any development of the case that would become
23 unmanageable for the Trial Chamber or unmanageable for the accused, would
24 require the decision, which was not a permanent decision but one that was
25 temporary and open to review, for there to be a reconsideration of the
1 issue of the severance of any one or two counts from the trial before the
3 Our concern here today is that the health of the accused in
4 conducting his Defence is able to be, to such an extent and in such a
5 form, that he is able to provide an effective Defence, and that the time
6 available to him in which to present that Defence on all three indictments
7 is sufficient and adequate for that to be effective. At this stage in the
8 trial, on the time allotted by the Chamber, we are at approximately the 75
9 per cent mark, having gone 75 per cent through the time allotted for the
10 Defence case. It will be apparent to all that in that period of time we
11 have not dealt with, in an effective way, the defence concerning Croatia
12 or Bosnia in the indictments, and our concern is that the accused may not
13 have sufficient time, having concluded the Kosovo section of the trial, to
14 then be able to effectively put his Defence and case in relation to those
15 two remaining indictments.
16 The scale of the case may be one of the reasons for that. In just
17 considering the Kosovo indictment, when you break down in each count the
18 separate allegations of criminal offences, as well as consider the fact
19 that two forms of criminal responsibility are alleged - in Article 7(1)
20 individual criminal responsibility; Article 7(3) superior command
21 responsibility - and break down within the paragraphs of the indictment
22 the separate allegations concerning each municipality, all of which will
23 require findings, as a lawyer approaching that, I've been able to see and
24 spot what I would consider to be 150 to 200 separate allegations. In
25 fact, the findings of fact to deal with those, what are effectively 200
1 counts, would be some tenfold, because each would have within them eight
2 to ten elements of findings. This Trial Chamber, in relation to Kosovo,
3 is really dealing with what amounts to 2.000 findings of fact relating to
4 some 200 incidents which have been conjoined into five or six counts but
5 are, in fact, made up of many separate and different allegations, each one
6 of which would be capable of proving a count if the evidence was adequate
7 or sufficient.
8 It's said that, in relation to the three indictments, that the
9 accused faces 66 counts. That's only counting the chapter headings. In
10 fact, with the two distinct forms of criminal liability, 7(1) and 7(3),
11 he's facing 132 counts within the three indictments. And if one did the
12 same exercise concerning the Kosovo indictment, the multiplicity of those
13 charges, counts and allegations reach into the thousands and, I suspect,
14 somewhere up near the figure of 10.000, having considered the issue from
15 the perspective of the Kosovo indictment.
16 In our submission, it is no wonder that the scale and scope of
17 this case does have an effect upon the accused's health, and it has an
18 effect on the manageability of the trial.
19 We're at a stage now where the accused said in open session
20 recently that he had some 19 Kosovo witnesses remaining. A witness list
21 has been provided to the Trial Chamber from his best assessment of the
22 outstanding witnesses that he would like to call, amounting,
23 approximately, to some 200 witnesses. That witness list would amount to
24 all three indictments being considered under that total of witnesses. In
25 our submission, again, it is no wonder that the scale and scope of this
1 case provides him with difficulty in relation to his health.
2 The Prosecution, throughout this case, have been complaining about
3 the lack of notice and lack of time allotted to them in dealing with
4 issues. We're concerned that any time that is made available is available
5 so that the accused can provide that effective Defence that he wishes to
6 put forward in relation to all three indictments.
7 In relation to the evidence that's been called already, a survey
8 of the Defence witnesses reveals that about 15 per cent of the time of the
9 Defence case in the Kosovo portion has been also covering issues
10 concerning Croatia and Bosnia. So effectively what the Court has been
11 dealing with to date has been the Kosovo indictment.
12 A number of facts and figures in relation to the scale and extent
13 of the case are probably worth considering at this stage because the
14 issues of manageability and health, as we say, and pressure on the Defence
15 and pressure on the Court concerns the scope and scale of the
16 documentation and the issues that have to be considered.
17 The assigned counsel have put together a schedule, which I hope
18 the Court will find helpful, detailing these matters, and I'd like them to
19 be handed out because they do put into context that which is often spoken
20 about publicly but never actually quantified.
21 We're at over 46.000 pages of transcript at the moment, and in the
22 course of the proceedings against the accused, which started in July of
23 2001, there have been 2.256 separate filings in the proceedings. The
24 number of pages of those filings have amounted to 63.775.
25 The exhibits the Prosecution have produced, 930, are broken up
1 into different tabs and sections, amount to over 85.000 pages of exhibits,
2 and that doesn't include DVDs that contain information within them. The
3 Prosecution produced 117 videos. The Defence have produced 328 exhibits,
4 and they amount to approximately 9.000 pages to date.
5 In relation to the disclosure that has taken place to enable the
6 parties to deal with the case, the number of pages under the Rule
7 66(A)(ii) disclosure, statements of evidence to be relied on in the trial,
8 over 106.000 pages. Number of pages relating to Rule 66(B), over 207.000
9 pages. And of the Rule 68 material served by the Prosecution, that
10 amounts to over 930.000 pages.
11 We're dealing with a case at the moment that has over a million
12 pages of documents -- over 1.2 million pages of documents.
13 JUDGE ROBINSON: Mr. Kay, I'm sorry to interrupt you.
14 Mr. Nice, I'm going to ask you to reply and to attend to one
15 matter in particular. I tell you now so that if you need to prepare for
16 it, you will. I asked, when you made your submissions, why did you refer
17 to the apparent illness of the accused. Mr. Kay has dwelt on it, so has
18 the accused.
19 MR. NICE: I can shorten you. I've checked that matter, because
20 my answer was incorrect. There's nothing in the recent filings that says
21 anything about it. It's only the earlier filings.
22 JUDGE ROBINSON: The filings of last year.
23 MR. NICE: That's right. I checked that and I was going to draw
24 that to your attention in any event.
25 JUDGE ROBINSON: Thank you.
1 Mr. Kay, yes.
2 MR. KAY: Thank you, Your Honour.
3 The accused himself has been in custody, as we know, for some four
4 years and five months on these proceedings, and, during that period, has
5 had to deal with this quantity of material that the case to date has
6 produced. We know that the infrastructure of the Court often has
7 difficulty coping with the volume of material. There have become
8 difficulties with translation of documents. The allocation of documentary
9 space for the Defence in this case is some 1.000 pages a month, a quantity
10 quite easily able to be exceeded in relation to the documents that he was
11 caused to present, as well as an amount of material easily exceeded by the
12 Prosecution in the presentation of their case.
13 We know that, in certain filings, the tracking of evidence may
14 cause difficulties. The recent issue concerning documents marked for
15 identification and tracking their progress through translation, how they
16 were produced in evidence, what the arguments were -- of admissibility
17 were to be. The assigned counsel took some four weeks working alone on
18 that document with assistance from interns brought from outside to try and
19 help us manage the materials. I know the accused didn't put in a written
20 submission on that, but resources available to him, it would have been
21 impossible for him to have achieved, and we dealt with that matter.
22 That filing itself had problems. The Prosecution put in a
23 response to our document which had a clear error in it, described as a
24 technical error but plainly an error that had come about because of the
25 scope and scale of the materials that had to be dealt with. And it wasn't
1 surprising that there was a misunderstanding of a particular section that
2 led to an error they filed running throughout their document.
3 None of that is good for manageability. None of that is good for
4 the conduct of the Defence case, as much as the Prosecution case. It's in
5 our interest to have the accused's exhibits admitted into evidence, and
6 it's in our interest to have, at the time they're produced, as many of his
7 documents translated as possible so that at the time the Trial Chamber is
8 able to deal with translated documents that it's able to more readily
9 comprehend, and the efficient use of time is more properly catered for
10 rather than having documents read out on the ELMO.
11 At the time of the joinder of this case, it was very clear that
12 the Prosecution was submitting on a basis that included a plan for a
13 Greater Serbia and in which they had quite clearly connected the accused,
14 and a return to the original filings made by the Prosecutor, the arguments
15 made at the time, all of them carry with them that connectivity with that
17 Now, in 2001/2002, we may not have been better informed on the
18 state of their evidence. We have been now because we have had the benefit
19 of their case and there has been a Defence case dealing with, in
20 particular, Kosovo. It is quite clear that the Greater Serbia concept did
21 not fit, and does not fit, with the allegations they make concerning
22 Croatia and Bosnia. Assurances and representations made at the time on
23 that matter, in our submission, have not proven to be right upon the
25 During argument at the time, in 2001, before the Trial Chamber,
1 the Prosecution were asked to account for this issue. There had been
2 submissions by the amici concerning the differences between the
3 indictment, between each of the particular areas - Croatia, Bosnia and
4 Kosovo - and the Trial Chamber sought clarification. At no stage was the
5 Prosecution case disassociating itself with that particular concept and
6 idea, and it was a part of the reason for connecting all three indictments
7 that they were mounting at the time.
8 Now this Trial Chamber is able to look back on the evidence,
9 consider the validity of the representations made at the time, and, in our
10 submission, it quite clearly discloses that, whatever allegations they may
11 have concerning that issue in relation to the Croatia and Bosnia
12 indictments, it simply does not hang together in relation to the Kosovo
14 The Prosecution have filed, yesterday or today, their submission
15 in relation to the hearing today. I've received this this morning. And
16 Annex B, which is a list of witnesses that the Prosecution have called in
17 the Croatia and Bosnia phase of the case, apparently sets out grounds for
18 connectivity between those witnesses and the Kosovo indictment. Again,
19 this is another 20 or 25 pages of schedule. I've only been able to look
20 at the first page, and I think it's worthy of comment. To reply to a
21 document like this would take us some two or three weeks of work. But the
22 first page I can largely deal with, as it's been an aspect of the case
23 I've been reviewing recently concerning preparations for the submission of
24 a final brief.
25 The first witness, C-37, has "Concern about the ethnic balance in
1 Kosovo" written in his box. Well, he may have been concerned about the
2 ethnic balance in Kosovo, but he does not provide one shred of evidence
3 that goes to the issues in the Kosovo indictment. His evidence concerns a
4 particular part of Croatia in which he had a role to play, and if you go
5 back to the transcript and see the terms of his evidence, you would not
6 be, in any way, shape or form, considering him as a witness to do with
8 The second witness, Mesic, the accused has dealt with him at
9 length to date. Again, you read through his evidence, he has no relevance
10 to the Kosovo indictment at all. It's written here, "Milosevic as
11 centrepiece of Serb Nationalism." Well, Mr. Mesic isn't needed as a
12 witness to put that allegation against the accused by the Prosecutor.
13 They have tried to call as many witnesses as possible on that issue within
14 the Kosovo component of the case. So to try, in some way, to connect him
15 with the Kosovo indictment, in our submission, is not a valid submission
16 at all.
17 The next witness, Matovina, again, general matters - nothing to do
18 with Kosovo - general matters concerning the background of Kosovo as an
19 autonomous state -- an autonomous part of the Serbian state, and nothing
20 within his evidence that goes to prove a single count within the
22 Anastasijevic, the journalist: "Modus operandi of the accused.
23 Pattern of behaviour." This was a journalist writing articles in the
24 Croatia and Bosnia conflict, giving no evidence about Kosovo at all. And,
25 again, for that heading, "Modus operandi of accused. Pattern of
1 behaviour," in our submission, this is thoroughly over-egging this pudding
2 to call this witness on this matter.
3 JUDGE BONOMY: Mr. Kay, though, on one view, the point of this
4 annex was to support the position that Mr. Milosevic is actually taking
5 here. Now, what purpose does it serve to then rebut every one of these,
6 one by one, other than to say, Well, there will be an answer eventually
7 when I come to make my final submission?
8 MR. KAY: What it shows is that evidence is being called or relied
9 upon out with the Kosovo indictment, that the Prosecution lay their hands
10 on any single thing that they can to show a connectivity. That has to be
11 dealt with by the rest of us. That has to be dealt with by the accused.
12 If your arguments are not shaped and honed and based on reality, this
13 scatter-gun approach not focused on the indictment makes the resources
14 available to the accused, assigned counsel and, no doubt, the Trial
15 Chamber, having to deal with all these issues completely pointless just to
16 have to negate them. And this schedule, this annex here, which they rely
17 upon in support of their argument to maintain joinder of the counts within
18 the trial, in our submission, is, again, making a submission that is not
19 based upon valid argument and solid reasoning. I doubt very much whether
20 Mr. Nice had a hand in drafting this at all.
21 JUDGE ROBINSON: There's something that I'm not clear about. For
22 example, in Matovina, it says, "Limited/no relevance to Kosovo
23 Indictment." How is one to take that, Mr. Nice? If you concede that it
24 has no relevance, why is it here?
25 MR. NICE: We put all the witnesses down so that you can see
1 proportionately the number that may have evidence directly relevant to
2 Kosovo. I've simply -- it's expressed as limited or no relevance to the
3 Kosovo indictment because it's always impossible to be sure that there's
4 absolutely no relevance in a history of this kind, but that's basically
5 designed to explain that these witnesses would seem to be those that don't
6 have relevance. We had to list them all; otherwise, it would have looked
7 even more selective.
8 JUDGE ROBINSON: Yes, Mr. Kay.
9 MR. KAY: And I think that comment is in relation to another
10 witness, it's C-1220, who is hiding in a little box there, "Limited/no
11 relevance to the Kosovo Indictment," and Anastasijevic has got a
12 significant and greater entry. And what it says: "Similar to Croatia and
13 Bosnia and Herzegovina, the accused needed another conflict in Kosovo, to
14 stay in power, after opposition parties challenged his election fraud in
15 the winter 1996/97."
16 This was a journalist who had written about issues, and there was
17 a great controversy at the time, and I remember the accused saying, well,
18 you're allowing journalists here for the Prosecution and you've said to me
19 you don't care about their opinions and what they write, yet the
20 Prosecution are relying upon it.
21 Continuing through this list, Dulovic: "Accused pattern of using
22 criminals like Arkan in Croatia and then later in Kosovo." There's
23 nothing relevant in Dulovic's evidence at all to the Kosovo indictment,
24 and drawing comparisons and using his opinion from one context to another
25 simply doesn't focus the trial on the allegations being made against the
1 accused within the indictment and, again, can cause him to have to waste
2 his time, energy, and resources in trying to deal with this scatter-gun
4 C-020, the same issue is repeated in relation to paramilitaries
5 who worked in Croatia and later in Kosovo, and that's all it amounted to,
6 really, in C-020's evidence.
7 Well, I'll just deal with this page rather than the next 50 pages,
8 I'm sure the Trial Chamber will be pleased to hear.
9 Lazarevic, you may be able to have got a bit out of Lazarevic if
10 you really wrung hard in relation to Kosovo, but there's other evidence
11 that the Prosecution has relied upon to call which is really focused and
12 shaped in relation to the Kosovo indictment, and that's why he was called
13 in the Croatian section of the trial.
14 And Mustafa Candic, again, the issue of Greater Serbia is no
15 longer a runner, if I understand -- well, I hope I understand it right.
16 I've gone back to reread all the representations made on Greater Serbia,
17 and it's a bit like reading the fine print on an agreement when you buy a
18 washing machine. You really do have to check what's being said and what
19 you can or cannot do with the machine. But --
20 JUDGE ROBINSON: For Greater Serbia, we must now read an
21 "extended Serbia". That's what I understand is the Prosecution's case
23 MR. KAY: And Kosovo was a part of Serbia anyway, so it still
24 doesn't make sense to me. But an extended Serbia that's not Greater
25 Serbia but could have stretched up to the same boundary, was, I think, the
1 way I ended up last time I looked at it yesterday.
2 Milan Babic, again, nothing to do with Kosovo.
3 And that's part of the problem that the Defence have to face is
4 the scale, scope, and, when you start really looking at the issues in the
5 case more so than you do at the Rule 98 stage when you're making the
6 submission of no case, which is a different issue, but you're looking at
7 the shape of the indictment and the evidence relied upon by the
8 Prosecutor, evidence called by the Defence, you really do feel that you
9 are wasting time and resources when you're having to chase matters that,
10 at the end of the day, come to nothing. But from our stage, we don't know
11 how the Trial Chamber's going to think; we don't know whether it will take
12 the same robust approach that we have and the accused does in relation to
13 the evidence.
14 Moving on from --
15 JUDGE ROBINSON: Mr. Kay, I'm reminded that it's time for the
17 MR. KAY: I must apologise.
18 JUDGE ROBINSON: We'll adjourn for 20 minutes.
19 --- Recess taken at 12.23 p.m.
20 --- On resuming at 1.04 p.m.
21 JUDGE ROBINSON: Mr. Kay.
22 MR. KAY: Thank you, Your Honour.
23 We have a schedule prepared of the Defence witnesses which
24 contains the transcript pages relating to Croatia and Bosnia, so what the
25 overlap between the indictments is, which I think may be of assistance to
1 the Trial Chamber. I know one might have an instinct about it, but it's
2 often quite a good idea to see what it is in factual figures terms, which
3 has been very, very helpfully prepared for us by one of our assistants.
4 The Court will there see the witnesses who the Defence called that
5 overlapped dealing with Croatian and Bosnian issues, the principally early
6 stage of the trial, but of course Mr. Seselj, who spent a greater period
7 of time than any of the other witnesses on crossover material, amounting
8 to approximately, in fact, about 10 per cent of the case. The others come
9 to about 6 per cent.
10 I hope that's of assistance to the Trial Chamber. I'm actually
11 drawing to the end of my submissions now.
12 In relation to the conduct of the Defence case, the Prosecution,
13 again, took an opportunity today to criticise the Defence. May I remind
14 the Trial Chamber that the Prosecution sought, by 29 different motions, to
15 change their witness list, have new witnesses added on, witnesses taken
16 off the list. And by the 4th of November, 2003, so in the stage of the
17 last four months of their case, the Trial Chamber had to issue an order
18 asking them to finalise the list of exhibits and witnesses, and to produce
19 a definitive exhibit list at that stage of the trial. In fact, the order
20 to produce the witness list was on the 13th of September, 2003, so still
21 then, no final list having been provided. And the reason is, and it's
22 exactly the same issue that the accused has to face and deal with, is that
23 witnesses may change, they may alter; issues in the case may develop;
24 particular strands become stronger, particular needs identified during the
25 conduct of the case itself, and thereby changes having to be made. This
1 attempt to rigidly apply standards by the Prosecutor upon the accused is
2 being dealt with by the Trial Chamber in the way that they had the same
3 latitude and recognition that the circumstances change. And we emphasise
4 that, that this is something that needs to be recognised and appreciated
5 as he is conducting his own Defence.
6 Those are all the matters that I submit to the Court upon
7 concerning manageability and health, and as we see it, our real concern,
8 that the accused is in a state and condition as well as within a time
9 frame to be able to present the most effective Defence case in relation to
10 the indictments as is possible.
11 Unless I can assist the Trial Chamber any further.
12 JUDGE ROBINSON: Thank you, Mr. Kay.
13 Mr. McCormack, if you have anything to say in light of the
14 submissions that have been made, the Chamber will hear you.
15 MR. McCORMACK: Your Honours, I would like to make one brief
16 counter-submission, if I can. I'm not sure whether it's ever happened in
17 the trial before that the two sides have been in complete agreement yet
18 differing so spectacularly on the reasons for their submissions. Whether
19 it's a novel situation or not, I would just like to make one brief
20 alternative submission in favour of severance of the Kosovo indictment in
21 the hope that it might assist the Chamber in your deliberations about
22 whether or not to sever the indictment.
23 It seems to me that the single most compelling argument in favour
24 of severance of the Kosovo indictment is the length of time of the trial
25 to date. The Appeals Chamber, in relation to the decision on assignment
1 of counsel of the 1st of November, 2004, in paragraph 19, the first
2 paragraph of the disposition, made the metaphor of maritime steerage in
3 the last sentence of that paragraph: "It is therefore left to the wise
4 discretion of the Trial Chamber to steer a careful course between allowing
5 Milosevic to exercise his fundamental right of self-representation and
6 safeguarding the Tribunal's basic interest in a reasonably expeditious
7 resolution of the cases before it."
8 Now, admittedly the Appeals Chamber was talking about the right of
9 self-representation, but I think in terms of this particular metaphor they
10 are using, they are talking generally about the accused's rights and
11 suggesting that it is for the Chamber to steer a course between, on one
12 hand, the rights of the accused and, on the other, the basic interest in a
13 reasonable, expeditious resolution of the case. Perhaps the default
14 steerage point is to the rights of the accused, and that's the way it
15 should be, but from time to time the Trial Chamber has attempted to
16 correct that steerage point and to work for the also important objective
17 of reasonable -- reasonably expeditious resolution of the case.
18 We've heard from the parties, in fact from all three - Mr. Nice,
19 Mr. Milosevic, and Mr. Kay in order - about different reasons for why the
20 trial has taken as long as it has. Perhaps there's truth in all of that.
21 Whatever the objective assessment of exactly why the trial has taken as
22 long as it has, the reality is that, in just over two months, we will all
23 endure the fourth anniversary of the start of the trial.
24 When the Prosecution first requested or moved the motion for
25 joinder of all three indictments on the 27th of November, 2001, four years
1 ago this week, they outlined some of the key arguments in favour of their
2 motion. One of those was judicial economy, the public interest of the --
3 in the efficient administration of international justice, and at the time,
4 back in November 2001, the Prosecution argued that that particular issue,
5 the public interest in the efficient administration of international
6 justice, demands one trial. Perhaps four years ago that was the case.
7 But I think it's arguable four years later that now the public interest in
8 the efficient administration of international justice calls for severance
9 of the Kosovo indictment.
10 I'd note the following observations: You refer -- the Chamber
11 refers in the scheduling order to the resolve expressed in July last year
12 to conclude the presentation of the Defence case by October 2005. We know
13 there are reasons why that hasn't happened, but that date has certainly
14 passed. It couldn't have been contemplated at the start of the trial that
15 we would lose 66 days throughout the Prosecution case because of
16 Mr. Milosevic's ill-health. It couldn't have been foreseen at the start
17 of the trial that we would be reduced to sitting three days per week
18 instead of five. There are all sorts of reasons why the case has taken
19 until now to reach the stage that it has.
20 THE INTERPRETER: Could the amicus please slow down for the
21 benefit of the interpreters, thank you.
22 JUDGE ROBINSON: The interpreters are asking you to speak more
24 MR. McCORMACK: Sorry. I apologise to the interpreters.
25 I'd like to just return to paragraph 26 of the Appeals Chamber's
1 decision on the joinder of all three indictments, the decision of the 18th
2 of April, 2002, a paragraph that both Mr. Nice and Mr. Milosevic cited. I
3 think it's arguable in relation to the question of manageability that the
4 Appeals Chamber referred to in terms of recognising the discretion of the
5 Chamber. "... if with the benefit of hindsight it becomes apparent to the
6 Trial Chamber that the trial has developed in such a way as to --"
7 THE INTERPRETER: Counsel hasn't slowed down, really.
8 JUDGE ROBINSON: It's being said that you have not slowed down, by
9 the interpreter.
10 MR. McCORMACK: It could also be the accent.
11 The submission that I'm making is that unmanageability, I think
12 it's arguable the trial has become unmanageable in terms of an expeditious
13 resolution of the trial. I'm not suggesting that the trial can't be
14 managed. Clearly it is being managed. But I think in terms of the
15 objective that has been recognised a number of times throughout the trial,
16 the importance of expeditious resolution, there is a serious question
17 about whether, in fact, the trial, as currently constituted, with the
18 joinder of all three indictments, really is manageable.
19 So my submission to the Chamber is that, in considering the
20 question of whether or not to sever the Kosovo indictment from the Croatia
21 and Bosnia indictments, the Chamber has the opportunity to bring to
22 relatively quick conclusion a very important part of the case in the
23 Kosovo indictment. Important, as demonstrated, in fact, by the accused
24 himself with the concentration that he has given in the presentation of
25 his own Defence case to date on Kosovo and in relation to the allegations
1 made in the Kosovo indictment by the Prosecution.
2 I would like the Chamber to be able to take those arguments into
3 consideration, along with those that have been made by Mr. Kay, by
4 Mr. Milosevic, and by Mr. Nice before me arguing for a rejection of any
5 attempt to sever the Kosovo indictment.
6 JUDGE ROBINSON: Thank you, Mr. McCormack.
7 Mr. Nice.
8 MR. NICE: First, I have set out in our filing but mention now
9 that we adopt and therefore don't repeat our filing of July 2004 in
10 relation to this matter. All the points in that filing remain valid. The
11 Chamber may be interested, in light of one of the things the accused has
12 said, to note that, at paragraph 25, he forecast that any form of
13 severance might lead parties in the former Yugoslavia to interpret an
14 expression of choice as to having a hidden agenda where none exists.
15 Health being the core problem, as the Chamber has made plain to
16 all the parties, the accused nevertheless declines to deal with it on that
17 narrow basis, and, when invited to say how much more time he would use for
18 Kosovo, declined to tell you. Twenty-five per cent left of his allotted
19 time comes to some 90 hours. On average, very rough average, witnesses so
20 far have lasted six hours. Ninety hours would accommodate 15 such
21 witnesses of the accused. There is no reason to doubt that, if this case
22 is severed, the accused will press you to use all of the time originally
23 made available to him for the three indictments just for the one. And yet
24 that is the time which, according to your own ruling, he should have
25 concluded his evidence and, we would say, must indeed be counted as having
1 concluded his evidence so that the Chamber could bring in judgement
2 following the other stages of the trial.
3 The accused made an incorrect observation about time efficiency
4 having been raised only at half time, only at the end of the Prosecution's
5 case. Absolutely untrue. As long ago as the 11th of December, 2001, in
6 court, I was pressing for the maximum use of 92 bis, that then being the
7 only method of dispatch faster than oral testimony available to us. As
8 soon as the 11th of December, 2002, in a written filing, I was making the
9 first suggestion that -- I think the first suggestion, that we should be
10 using a system of examination-in-chief by written statement adopted by
11 witnesses. It found no favour with the Trial Chamber then or on
12 subsequent occasions, and it only became available following an Appeals
13 Chamber's ruling late in the Prosecution's case. Thereafter, we used it,
14 or attempted to use it, for every single witness.
15 I make that point for this reason: Not only is the accused wrong
16 in saying that time efficiency hadn't been in our contemplation or
17 anybody's contemplation from the beginning, because it has been, but it
18 follows that since 89(F) is now available generally, and we would never
19 oppose its use by this accused, he would have been able to fit in to his
20 allotted time, which matched ours for examination-in-chief, more witnesses
21 than we could have done because he has had the availability throughout
22 that time of this particular mechanism.
23 The accused made an observation about nobody in this institution
24 working five days a week. Let me tell him straight away that so far as
25 the Prosecution is concerned, he's absolutely right because the
1 Prosecution works pretty well, for four years, seven or, at a minimum, six
2 days a week. I make that to heap no praise on ourselves, but to underline
3 a point made, and the Chamber will find this in the Appeals decision on
4 assignment of Defence counsel, at paragraph 14 and footnote 42, a point
5 made by that Appeals Chamber, where it made this point, dealing with the
6 possibility of the schedule going down to one hearing day a week or even a
7 month, a point I've already referred to. The Chamber rejected assigned
8 counsel's "contention that Milosevic's inability to represent himself
9 necessarily rendered him unfit to stand trial at all," but went on to say
10 this: "Trial litigation is an extraordinarily demanding profession. It
11 cannot be that only those defendants capable of meeting its demands are
12 formally fit to stand trial."
13 And that is an important principle for us to have in mind as, and
14 to the extent necessary on this application, the Chamber finds itself --
15 not application, consideration, the Chamber finds itself considering the
16 way that the accused has elected to try and do everything himself and then
17 complains of the consequences for him of doing so.
18 I observe, finally, on this point of time that the accused now
19 wants some 200-odd witnesses, having had 40 so far; 240 is plainly a
20 number he could have fitted in to the time allocated to him had he used
21 the efficiency measures that we used and that were available to him.
22 Can I pick up a point, lest I forget it, from Mr. Kay, my learned
23 friend Mr. Kay, about the service of witness lists. We've had none from
24 the accused recently, apart from one that has not been formally filed and
25 is a courtesy copy. We don't know, really, what are the witnesses to
1 come. We responded throughout to the Chamber's directions, notifying them
2 of changes in priority of witnesses as time foreshortened. We were
3 entirely transparent about whom we initially wished to call, and as things
4 changed, we changed. The Chamber will, indeed, remember that one of the
5 ways in which we manifested the change is we said, This witness is no
6 longer one that we can call; it may, however, be one that the Chamber may
7 wish to call itself under Rule 98. And we gave details of it.
8 So that on that point, I end what I want to say at this stage on
9 that topic by saying there is clearly going to be no advantage in time by
10 severance. All that will happen is that whereas there could and should,
11 in our respectful submission, have been decisions on all three indictments
12 at the same time, there will be decisions only on one. And it is our
13 position that this case should continue, and swiftly, on all three
15 When we come to medical issues, Your Honour, I think all the
16 reports are, in fact, confidential. They've been referred to. I want to
17 make reference to two reports very shortly. Must I go into private
18 session to deal with it properly? I think one passage has been referred
19 to already, and possibly the other one as well.
20 [Trial Chamber confers]
21 JUDGE ROBINSON: In relation to these matters, Mr. Nice, when the
22 issue first came up, I determined that we could hear evidence in relation
23 to medical reports of the accused in public session because they are in
24 the interests of the trial, and that was in accordance with the
25 jurisprudence of the Tribunal.
1 MR. NICE: Yes.
2 JUDGE ROBINSON: So to the extent necessary, we would lift the
4 MR. NICE: Thank you very much.
5 Very briefly, then, Dr. van Dijkman's first report of the 18th of
6 November, 2005, sets out as its conclusion no grounds to change the
7 current course of action, "... and in my opinion, no reasons from the
8 cardiologic point of view to alter the current trial regime."
9 Then in his second report of the 23rd of November, 2005, dealing
10 -- or not dealing with the particular queries that the Court had raised
11 with him, and his conclusion, the passage that the accused referred to,
12 "... as in the past, I strongly advise provision for sufficient rest. On
13 the other hand, it seems to me that the six-week rest period is somewhat
14 too much."
15 A reading of that is that his advice in the past for rest is
16 indeed the advice that was reflected in the trial timetable that he said
17 in his shortly earlier -- a little earlier report did not need to change.
18 And I'm not aware really that there is any evidence coming from this
19 doctor going to show that there's a substantial period of time required
20 now for rest. To that extent, I find the report not entirely clear. But
21 it looks to me as if he's referring back to the time when he advised rest
22 generally, something that the Trial Chamber has, indeed, accommodated.
23 On the medical position as described by the accused, if he is
24 worse, and if his position is different, although at the moment there's no
25 report detailing that different position, at least from the doctors turned
1 to by the Trial Chamber, then his position is not as described by the
2 Appeal Court when it decided on the mode of procedure here with assigned
3 counsel. And that brings me to the proposition which you can find fleshed
4 out at paragraphs 28 to 32 of our filing, that, for whatever reason,
5 medical or other reason, for whatever reason, if any, that the Trial
6 Chamber thinks there are problems about the trial and thinks that it's not
7 going to be able to continue as it has done immediately in the past, it is
8 now the time to use the assigned counsel in a much more vigorous way and
9 to deal with any obstruction to that that might come either from the
10 accused or from others acting on his behalf with firmness, showing indeed
11 that this Trial Chamber has a settled intention to see this case through.
12 There was a quotation that the accused relied on in the joinder
13 application -- the joinder decision, at paragraph 27. I'll just find it.
14 He omitted the immediate following sentence which the Chamber will have in
15 mind, I suspect, namely this -- this is when he dealt with the
16 unrepresented accused needing rest from work. The Chamber went on to say:
17 "The responsibility for the accused's decision not to avail himself of a
18 defence counsel, however, cannot be shifted to the Tribunal."
19 Another principle vital to have in mind. He is responsible for
20 what is happening to him, he is responsible by attempting to undertake
21 what is beyond him for the medical condition that now creates a problem.
22 No one else is.
23 This trial - and I have to repeat this - was capable of being
24 dealt with in a very, very compact period of time, as the Prosecution's
25 evidence in chief showed. The time was only extended to the time the
1 accused repeatedly refers to by his extensive cross-examination. And of
2 course the Prosecution has been required to limit their cross-examination
3 time, and has, I think, almost certainly succeeded in doing so within the
4 parameters required of us. So the taking of time is the accused's
5 responsibility, and the fact that he's done it himself cannot be shifted
6 onto anybody else's shoulders for allocation of responsibility.
7 The accused drew to your attention the passage in the joinder
8 motion -- paragraph 26 of the joinder decision, I beg your pardon, a
9 well-known passage which says how, if the Prosecution fails to discharge
10 this responsibility that has been earlier explained by the Appeals
11 Chamber, the Trial Chamber has sufficient powers, and so on and so forth.
12 Well, of course, the position is without doubt the Prosecution did
13 discharge its responsibilities, and there can be no way of seeking to base
14 a decision to sever now on anything that the Prosecution has done. That
15 possibility, if it ever existed, would have had to have been dealt with
16 far earlier.
17 Further observations by the accused that I can deal with shortly:
18 He says there has been no link established. Why, then, if it's really the
19 case that that's his belief, why is he calling all this evidence? But if
20 that is his belief, then certainly his witness list can be shortened and
21 pruned of all those witnesses who serve non-forensic functions.
22 He refers to document torture. In a case involving a head of
23 state, or former head of state, with Rule 68 obligations on us, of course
24 there will be a large amount of material; it's inevitable. The Chamber
25 will want to remind itself, if it pays any attention to that observation,
1 how the Prosecution recognised the difficulties on the accused and on
2 Mr. Kay and others and set out the parameters by which it was searching
3 its collections of material right at the beginning, publishing reports on
4 what it was doing, and inviting comments if any of the parties, or even
5 the Bench, wished us to change the process by which we were performing our
6 otherwise irresistible duty. We had one representation on changing
7 parameters, I think to broaden it, by my learned friend Mr. Kay, but at no
8 time have we been asked to narrow those parameters, and accordingly the
9 material that comes comes as a result of the Statute and Rules of this
10 Tribunal. We have no choice in the matter.
11 Greater Serbia has been dealt with by two of those addressing Your
12 Honours this morning. The position on Greater Serbia has been dealt with
13 not so very long ago now at some length, some detail. Can I simply remind
14 the Chamber that on Greater Serbia, from the moment I was in this case, I
15 was extremely careful with my words. If you look at it, what's said in
16 the -- in this Chamber's hearing on joinder, I expressed myself
17 cautiously. And the Appeals Chamber, as revealed in its decision of the
18 18th of April, 2002, got right the Prosecution's position, not
19 surprisingly. It's true that at paragraph 8 it made a reference to a
20 "Greater Serbia" but thereafter, and at paragraphs 20 and 21, it set out
21 the Prosecution's case with clarity, saying this: "... the purpose behind
22 the events in each of the three areas for which the accused is alleged to
23 be criminally responsible was the forcible removal of the majority of the
24 non-Serb civilian population from the areas which the Serb authorities
25 wished to establish, or to maintain as Serbian-controlled areas by the
1 commission of the crimes charged. The fact that some events occurred
2 within a province of Serbia and others within neighbouring states does not
3 alter the fact that, in each case, the accused is alleged to have acted in
4 order to establish or maintain Serbian control over areas which were or
5 were once part of the former Yugoslavia."
6 In the second paragraph, saying: "A joint criminal enterprise to
7 remove forcibly the majority of the non-Serb population from areas which
8 the Serb authorities wished to establish or to maintain as
9 Serbian-controlled areas by the commission of the crimes charged remains
10 the same transaction notwithstanding the fact that it is put into effect
11 from time to time and over a long period of time as required."
12 My words in questioning witnesses have always followed that same
13 line, advanced from before this trial opened. They were expressed by me
14 cautiously in the opening remarks where I think I acknowledged that the
15 words "Greater Serbia" never fell from the accused's lips, or to our
17 The plan identified and the subject of evidence is what binds
18 these three indictments together, and it is the respectful submission of
19 this Prosecution that it will be doing a grave injustice not to allow them
20 to be brought to a conclusion together because of that indissoluble
22 My learned friend Mr. Kay, in dealing with Kosovo somewhat maybe
23 dismissively, I don't mean it in an offensive way, is simply failing to
24 record the extensive evidence now before the Court going to show the way
25 that Kosovo is the beginning, and in the middle and at the end of this 10-
1 to 20-year period. The accused's reaction to it can be considered in
2 various ways, but just to take some headlines, his position at The Hague,
3 where matters were dealt with, his position at Dayton where Neumann said
4 in terms to you as a witness that it was -- he actually said it to the
5 accused in terms, that it was he who refused to allow Kosovo to be placed
6 on the agenda at Dayton. The whole history of, say, the Bosnian Serbs in
7 1994 with their petition. We heard about this through Kosta Bulatovic,
8 complaining about the way the Serbs in Republika Srpska were being dealt
9 with and demanding a response from the accused in respect of Kosovo as a
10 result, or leading, say, the Prosecution to such specific events as the
11 1995 police trial and the repression of Kosovo Albanians that followed
12 that. And of course we very recently had a typical piece of evidence
13 showing how it was that there was repression, even of, what is it,
14 Drenica, that beautiful town, where fear must guard the house, before
15 there was any need for the excessive police force. Kosovo features as the
16 explanation for the rise to power of this accused, for his retention of
17 power, and then at the end, for the commission of offences. And it is
18 impossible, realistically and properly, those, I venture to suggest,
19 familiar with the overall history and who have given evidence to you, show
20 it's impossible to extract the one from the other.
21 Annex B to our filing, I, of course, take complete responsibility
22 for documents I file, and Mr. Kay suggested I might not have had a hand in
23 it. I had a hand in instructing that it be prepared, how it be prepared,
24 and, to the extent possible with the time allowed, reviewing it. So I
25 take responsibility for it and it falls nowhere else.
1 If one -- it has been prepared in something of a hurry. I think I
2 made that point clear at the beginning. So that, for example, if you look
3 at the page my learned friend was looking at, page 1, C-037, and Babic, of
4 course the same person, but in each case you have real evidence here that
5 shows the connections and it doesn't do to try and put it on one side.
6 Where you've got Serbs -- Babic said it all started in Kosovo. That's
7 what led to the problems in Knin, and he says that the Serbs fleeing
8 Croatia, being driven or forced to go or invited to go to Kosovo. You
9 make Mesic, who in 1990, raises concerns about the way Serbia handled the
10 Kosovo incident, being told by the accused "when you give them a good slap
11 on the face, then they'll be obedient. That's how we solved the point."
12 Taking another one, Anastasijevic. And trying to characterise
13 witnesses now is not appropriate. He gave evidence, he was not stopped
14 giving evidence; his evidence was admissible. And he said that the
15 accused -- this was his judgement from evidence coming to him and material
16 coming to him, was that the accused needed another conflict to stay in
17 power, and that conflict was Kosovo. But more importantly, or more
18 factually, maybe, if the opinion doesn't appeal to you because it's an
19 opinion, the accused had a military line, jumping over formal chains of
20 command, something that appeared elsewhere and, of course, in Kosovo.
21 And likewise as to Arkan in Croatia and later in Kosovo. Of
22 course the pattern of this accused's familiarity with or even direction
23 over paramilitaries, such as the Red Berets or Arkan, is of extreme
24 significance wherever it occurs, and it is, in our respectful submission,
25 unrealistic to try and forget or set aside the evidence of his control of
1 these things in Croatia and Bosnia. And it turns up regularly in the
2 witnesses you'll see when looking at the Kosovo indictment.
3 JUDGE ROBINSON: Mr. Nice, the Chamber will have to go through
4 your Annex B very carefully --
5 MR. NICE: Yes.
6 JUDGE ROBINSON: -- because it does appear to be an exaggeration of
7 the connection.
8 MR. NICE: I'm sorry that Your Honour should be inclined to
9 describe a document prepared to assist you in these circumstances an
10 exaggeration, and on behalf of those who prepared it, I absolutely reject
11 that observation and would respectfully remind you of how it was that the
12 Appeals Chamber made it clear on the joinder decision that - and I repeat
13 it to you, although I've mentioned it once already - that in their
14 judgement at that time, and it is not changed -- there's been no reason to
15 change since: "... a substantial body of evidence relevant to the issue
16 of the acts and conduct of the accused itself in the Croatia and Bosnia
17 trial is also relevant to that issue in the Kosovo trial." And it then
18 went on to say: "The prosecution would therefore be entitled to prove in
19 the Kosovo trial what is in effect its case in the Croatia and Bosnia
20 trial. To have to do so twice would be a grave waste of the scarce
21 resources ..." I realise that point doesn't apply as the Chamber is only
22 considering severance with the second trial to be heard by the same
24 I'm nearly finished.
25 I invite the Chamber to ask itself this question of the accused,
1 or not to ask -- to ask itself this question of how the accused will
2 behave: If there is severance, does it expect there to be any difference
3 in the approach of this accused to this Chamber? He has not asked you for
4 anything. He has indeed, at one stage - and I wrote his words down -
5 demanded from you something. The same way as he demanded an adjournment
6 the other day, he demands from you today a period of rest. Is there any
7 reason to believe if, in the same time he has to deal only with Kosovo as
8 with all three indictments, that he will return anything for that
9 generosity in his recognition of this Court? Of course not. All that
10 will happen is that a trial of this accused for genocide may be left
11 hanging where otherwise it could be the subject of a verdict.
12 As to my learned friend Mr. McCormack's observations, judicial
13 economy, I think I have already dealt with. He doesn't recognise, in his
14 arguments, that the only change and the only thing that has made this
15 trial, as he would seek to characterise it, as unmanageable, is the
16 accused's health, the accused's response to it, the accused's
17 determination either to let it have its effect on the conduct of this
18 trial and the control of this trial rather than to do that which any
19 sensible and rational person would do, which would be to use the forces of
20 lawyers available to him.
21 And on manageability, my learned friend also referred to the same
22 passage from the Appeals Chamber's judgement. Manageability is not
23 something that can be -- I think I said this already. Manageability is
24 relevant only in this case because it is the accused who needs to be
25 managed. Please look at our proposals for how the assigned counsel could
1 be used. It is an inversion of reality to think that it is the trial that
2 has become unmanageable. The question here is who manages the trial and
3 whether the accused is managing himself properly or needs to be managed
5 Your Honours, I think that concludes my answer, subject only to
6 this observation that I must make, although I think it's in our filing:
7 It may be that the objective of the accused in his conduct of the case is
8 to achieve a postponement of judgement. The Chamber may think that by
9 severance it will be seeking to resist that objective of the accused. As
10 I hope I've revealed, there will, in fact, be no time saving, there will
11 be no resistance of those objectives of his, and the high probabilities
12 are that what is, of course, difficult and complex when it's a single
13 trial, with the opportunities open to the accused if it becomes two
14 trials, will become even worse. And we press the Chamber to say that it
15 is quite inappropriate for these indictments now to be severed.
16 Unless I can help you further.
17 JUDGE ROBINSON: Thank you, Mr. Nice.
18 [Trial Chamber confers]
19 JUDGE ROBINSON: There are several issues arising from the matters
20 that we have considered today. I wish to note --
21 Mr. Milosevic.
22 THE ACCUSED: [Interpretation] Will I get an opportunity to say a
23 few words with regard to these questions that Mr. Nice raised?
24 JUDGE ROBINSON: Well, you've already spoken, and we have heard
25 you. Do you have something that could be said very briefly?
1 THE ACCUSED: [Interpretation] We heard him before me and now he
2 spoke, well, for a considerable amount of time yet again.
3 JUDGE ROBINSON: That was a response to you. That's traditional
4 in these matters. If you have something to say, I'll hear it, briefly.
5 THE ACCUSED: [Interpretation] Before I speak in connection with
6 what Mr. Nice said, and he repeated lots of nonsense that we have occasion
7 to hear from him here, I just wish to provide a piece of information to
8 Mr. Bonomy because he asked me about this.
9 So, Mr. Bonomy, in relation to the financing of this illegal
10 Tribunal of yours, according to your own Article 32 of your own Statute,
11 the expenses are covered from the regular budget of the UN. However, they
12 arrive from very murky sources; the Soros Foundation, various foundations
13 from the Islamic countries, with NATO being the major financier.
14 On the 17th of May, 1999, Jamie Shea, the spokesperson of NATO,
15 said: "NATO countries are those [In English] ... the finest to set up
16 Tribunal. We are amongst the majority financiers. We want to see war
17 criminals brought to justice. I'm certain that when Justice Arbour goes
18 to Kosovo and looks at the facts, she will be indicting people of
19 Yugoslavian nationality, and I don't anticipate any others at this stage."
20 [Interpretation] So the main financier is NATO, and the others are
21 the Soros Foundation and foundations from Islamic countries, and so on and
22 so forth. So that is perfectly clear.
23 And on page 35550 from these proceedings here, I'm just going to
24 quote Mr. Nice, who talks about a witness, and says: "[In English] If we
25 go to page 2 of 11, halfway down the page we can see that this is by no
1 means written by people who are friends of the ICTY or any Western
2 conspiracy, because the author describes NATO's intervention as the recent
3 'brutal, illegal, and illegitimate intervention of the NATO forces
4 against the country.'
5 "So you would accept that this is a Serb without any particular
6 leaning towards the forces and powers that established this Tribunal ..."
7 et cetera.
8 [Interpretation] So, Mr. Bonomy, for Mr. Nice, obviously there is
9 no dilemma, the kind of dilemma you have. So you can clarify it with him,
10 what he meant to say then. Since you say that you don't know about this,
11 I hereby inform you of this. And I believe that, as an honourable man,
12 once you've found out, and I can give you further evidence, you can leave
13 this story that you got into without realising what you got yourself into.
14 And now as for Mr. Nice and what he said, he said the most
15 senseless thing possible about a Greater Serbia --
16 JUDGE BONOMY: I have to say I haven't the remotest idea what
17 you're talking about now in relation to this. In fact, the more I read
18 it, the less comprehensible it becomes.
19 JUDGE ROBINSON: Mr. Milosevic, I have to say to you that you are
20 not at large here. I am giving you a chance to comment on some issues if
21 you consider them to be issues of importance. Although the Prosecutor did
22 not file a motion, I asked the Prosecutor to begin. So in accordance with
23 the tradition in adversarial systems, I allowed him to reply. In these
24 circumstances, I don't see you as having any right to reply, but you
25 obviously have an interest, a fundamental interest, in the outcome of
1 these matters, and it is for that reason that I'm allowing you to say
2 something at this stage. But please don't abuse it.
3 Proceed, bearing in mind that we are now almost seven minutes to
5 THE ACCUSED: [Interpretation] As for what Mr. Nice said that
6 pertains to one of the key issues, as for Greater Serbia, he explained
7 just now that I did not utter that word, but I assume that he's trying to
8 say that there is something that was done. I also think that deeds have
9 to be looked into first and foremost, and the deed is the following,
10 Mr. Robinson and gentlemen: In this entire period, from 1991 onwards, no
11 one was expelled from Serbia on account of ethnic affiliation. There was
12 no discrimination whatsoever. No one from Serbia and no one from the
13 Federal Republic of Yugoslavia was discriminated against on account of his
14 religion, race, or beliefs. That is a fact, gentlemen. And at that time
15 that you are interested in, I was president of Serbia and president of
16 Yugoslavia, and no one was ever expelled from there. That is a fact.
17 Now, what Mr. Nice is trying to ascribe to me --
18 JUDGE ROBINSON: [B/C/S spoken on English channel] I want to make
19 it clear I'm not interested in this. I'm interested in the question of
20 severance. I am not clear.
21 We are back to English now. Did you hear what I said? I said I'm
22 not interested in a general discussion on Greater Serbia. If you have
23 something to say about Greater Serbia because it impacts on the question
24 of severance, then I'll allow you to say it. But don't regurgitate the
25 arguments which we've heard ad nauseam about this issue.
1 THE ACCUSED: [Interpretation] Mr. Robinson, the question of time
2 is being raised here, and Mr. Nice devoted due attention to that in the
3 speech he just made. According to Mr. Nice, the best thing would be not
4 to have anyone testify in public but to do all of it in writing, and
5 Mr. Nice is explaining to you how they abided by that, that they were very
6 economical, very expeditious. And in spite of all these heaps of paper
7 and all these 92 bis and 89(F) testimonies, he used up 300 days. So
8 please do not take into account these things that are in contravention of
9 pure mathematics.
10 I was not saying that no one worked for five days. I was just
11 trying to say that no one sat for five days. Of course I work for more
12 than five days, although we sit here only for three days. And after all,
13 Dr. van Dijkman wrote that three days is what I do here, and as for the
14 rest of my time, I have to prepare myself for here, including the proofing
15 of witnesses. And that is what he knows full well and that is what you
16 know full well, so that is an argument that cannot be used at all.
17 Mr. Nice's advice is that I collect written statements from
18 witnesses. The basic aim of public testimony is to hear the truth,
19 because if we were to stop at what Mr. Nice wrote, together with his
20 associates, that would be a monstrous lie. So in order to have the truth
21 heard, there is a great interest involved, a historical interest, I should
22 say, of my people, of my country. But not only of my people and of my
23 country, of mankind in general and of the times in general. Let us hear
24 what the truth is, and let the actual perpetrators of what happened in
25 Yugoslavia actually be exposed, although you said yourself, Mr. Robinson,
1 at one point in time, that you are not in charge of trying NATO for what
2 they did, although you know what they did and you know that the basic
3 tenet of any law in the world is that the law that does not apply to one
4 and all is not law at all.
5 Therefore, I ask for adequate time to be given to me.
6 JUDGE BONOMY: I, again, have to say I don't understand this
7 submission. Because something is in writing does not mean it is not in
8 public. Everything in writing here, submitted in writing that's not
9 confidential, becomes public. And at this stage, it's not, as you would
10 see it, lies that we're suggesting ought to be presented in writing, it's
11 what you claim to be the truth, because it is you that would be presenting
12 the written material, and you turn the argument on its head and undermine
13 your whole case. It is the way forward if you want to submit material in
14 addition to the period that's been allocated to you to complete the case.
15 THE ACCUSED: [Interpretation] I think, Mr. Bonomy, that you're the
16 one who's turned things upside down.
17 JUDGE ROBINSON: Are you finished now, Mr. Milosevic?
18 THE ACCUSED: [Interpretation] Mr. Nice presented a great many
19 other things here too, that this will show how I systematically did not
20 observe any laws, which is a lie. He has not presented a shred of
21 evidence to that effect. That my role with the paramilitaries will be
22 shown. My only role with the paramilitaries was to have them arrested.
23 There was no other evidence to that effect. So he is manipulating here --
24 JUDGE ROBINSON: Mr. Milosevic, all of this -- this is irrelevant
25 to the issue. If you do not have anything more to say on the question of
1 severance, we'll stop now. We are 15 minutes beyond --
2 THE ACCUSED: [Interpretation] I'm talking about what he talked
4 JUDGE ROBINSON: And you don't have a right to do that. I
5 explained to you the circumstances in which I have allowed you to speak,
6 and I explained why Mr. Nice had a right to reply, because he started. Do
7 you have anything that is pertinent to say, anything more? I'm not
8 interested in general issues. If you don't, I'm going to adjourn.
9 THE ACCUSED: [Interpretation] I have presented what I consider to
10 be relevant.
11 JUDGE ROBINSON: Thank you, Mr. Milosevic.
12 I want to say that many issues arise for consideration and
13 decision by the Trial Chamber in relation to this matter. We still have
14 outstanding a report which we expect today from Dr. Dalal, and also there
15 is to be an examination and a report by a neuroradiologist. The Chamber
16 would like to have all these reports before it before it makes a decision
17 on these matters. So we'll give a decision once we have all the reports
18 before us.
19 MR. NICE: I was going to ask the Court whether there was any
20 possibility of continuing with evidence, seeing that the accused has come
21 and seeing what is said about him by Dr. van Dijkman. I don't know if the
22 Chamber is able to assist us at all in relation to that. In our filing,
23 of course, we suggest that the next witness, Sel, should be taken
25 JUDGE ROBINSON: Yes. We are expecting to continue tomorrow at
1 9 a.m. I just want to confirm, Mr. Milosevic, your witness tomorrow will
2 be -- is that Mr. Sel?
3 THE ACCUSED: [Interpretation] The next witness is Janos Sel.
4 JUDGE ROBINSON: Thank you. We are adjourned until 9 a.m.
6 --- Whereupon the hearing adjourned at 2.03 p.m.,
7 to be reconvened on Wednesday, the 30th day of
8 November, 2005, at 9.00 a.m.