090615ED

Page 120

1 words, which are what are at issue here, in essence, were a statement of

2 defiance. And if the evidence does demonstrate that, in my respectful

3 submission, at the end of the day, this case is all about one of

4 accountability.

5 The focus in this case will be on her own words, not what someone

6 else did, not what anybody involved in these proceedings did or did not

7 do. It will turn on her own words, what she decided to publish. And I

8 expect that at the end of the trial, the issue will not be so much the

9 actus reus on either of the publications, because that, for all intents

10 and purposes, is not an issue. The issue will be one of mens rea,

11 whether or not she, in fact, knew what she was doing, whether it was

12 willful, whether it was knowing. I anticipate that the evidence

13 throughout the trial and at the end of the trial will demonstrate that in

14 the affirmative.

15 Thank you, Your Honour.

16 JUDGE MOLOTO: Thank you, Mr. MacFarlane.

17 Mr. Khan.

18 MR. KHAN: I'm grateful, Mr. President, Your Honours.

19 [Defence Opening Statement]

20 MR. KHAN: My learned friend has emphasised, quite rightly, that

21 it is imperative that Your Honours do not get side-tracked in this case.

22 The Defence has no fear on that account. Your Honours have had the

23 privilege of sitting in judgement in many cases in this institution for

24 many years of far greater complexity than this particular matter. There

25 is no danger whatsoever of getting side-tracked with a Bench of this

Page 121

1 experience.

2 But what my learned friend states, and I would agree with him, is

3 that one should also focus on the words of my client, Ms. Hartmann. It

4 is my respectful submission that is precisely what my learned friend

5 singularly failed to do in his previous incarnation as the amicus

6 investigator in this case.

7 Your Honour, what are the words of my client that may be

8 relevant? Well, Your Honour, let me start by citing her interview on the

9 22nd of May, 2008, in which she stated:

10 "I am extremely surprised and devastated by these proceedings by

11 the Tribunal. I have worked for years without counting all the time I

12 invested to serve the Tribunal, to the detriment of my family and my

13 children, and I carried out my work such that no one could ever doubt my

14 commitment, which certainly went beyond that demanded by my employer, the

15 United Nations, and with the intellectual rigour recognised by many

16 observers."

17 Your Honour, she continued, and this is page 4 out of 10 of that

18 interview:

19 "If I may continue on my career," she says, "I formally reject

20 having ever knowingly violated any regulation and affirm that I never

21 knowingly or willingly endeavoured to hamper the course of justice in any

22 way."

23 Your Honour, I'll read just one more paragraph. She continues:

24 "I note that much of the information contained in the pages of my

25 book, i.e., the documents mentioned in the file, communicated to my

Page 122

1 adviser, Maitre Bourdon up to the start of the interview, had been

2 disclosed. Much of this information had been available, some of it for

3 years now, without ever giving rise to my reactions by the Tribunal."

4 And then she quotes many, many documents.

5 Your Honour, my learned friend has come very late in the day to

6 the importance of the words of my client, because as you'll see from the

7 face of this interview, the documents my client referred to, the details

8 my client referred to, were not even translated to my learned friend.

9 They were not put to the previous specially-appointed Trial Chamber.

10 They were not part of his report.

11 Your Honour, there's no fault, in my respectful submission, or no

12 doubt is cast on the integrity and impartiality and highest

13 professionalism of the originally-constituted, specially-appointed

14 Trial Chamber. They were handicapped, due to no fault of their own, by a

15 completely incomplete dossier and report that was produced by my learned

16 friend in his previous incarnation as the amicus investigator of this

17 case. None of these facts were put before Your Honours 'colleagues

18 previously.

19 Your Honour, let's be clear. The two confidential decisions that

20 are the subject matter of these proceedings were never read by my client

21 at the time she was working as the spokesperson of the former Prosecutor,

22 Carla Del Ponte. Indeed, the first time that they were read were when

23 they were handed to her by my learned friend sitting opposite. And that

24 is not an assertion, that is an issue where the parties are in agreement.

25 And, Your Honours, I will refer you to the 7th of February agreed facts,

Page 123

1 where my learned friend consents and agrees that that is the truth.

2 Your Honour, Ms. Hartmann was never briefed while she was a

3 spokesperson of the Prosecutor in relation to any of these decisions.

4 She never spoke to the press, there's no briefing she gave in relation to

5 those decisions, and there is no evidence that my learned friend intends

6 to put before you to controvert these assertions.

7 Your Honour, it's also important, in the Defence's respectful

8 submission, to note that in relation to the second decision, the 6th of

9 April decision, it was rendered three days after -- three days after my

10 client left her job as the spokesperson of the Prosecutor. Again, this

11 is not a matter of controversy. This is an agreed fact, and it is set

12 down in the 6th of February, 2009 filing. She left her job as

13 spokeswoman on the 3rd of April of that year.

14 So, Your Honour, this case is not about abuse of position of

15 trust. This is not about an evil individual who is somehow trying to

16 hamper the administration of justice, get a false result due to witness

17 intimidation, as have been most of the contempt cases that this Court has

18 heard.

19 My learned friend accepts, once again, in his 7th of February,

20 2009, filing, that my client did not act with reprehensible motives.

21 Your Honour, by the end of this case, we will ask you to step

22 back and review, as you would do in any event, the evidence in its

23 totality, and it will be our strong -- the respectful submission that a

24 striking feature of this case has been the constant erosion in my learned

25 friend's case. From the time he submitted his first report, the case has

Page 124

1 eroded as far as the allegations are concerned in material particulars to

2 the pre-trial brief. And again since the pre-trial brief has been filed

3 and again in some particulars, there has been a stepping back by my

4 learned friend for the Prosecution.

5 Your Honours, by the end of the case, it is the Defence's

6 respectful submission and belief that Your Honours will find that my

7 learned friend has not discharged his heavy responsibility to prove this

8 criminal matter to the required standard of beyond reasonable doubt.

9 Now, Your Honours, in assessing the parameters of this case, it

10 is, of course, apt to bear in mind that the crime of contempt is not a

11 strict liability offence. It is not any technical breach of a

12 confidential order that would give rise to responsibility. And, Your

13 Honours, we say, on behalf of Ms. Hartmann, that when one dissects the

14 Prosecution's case, four facts are asserted which it is said that my

15 client breached: namely, the existence -- this is the first fact, the

16 existence of the confidential decisions; the fact that those decisions

17 were confidential; the identity of the moving party; and, fourthly, the

18 subject, namely, that the protective measures were granted in relation to

19 documents.

20 Your Honour, Mr. President, all these facts will be shown to have

21 been public.

22 Now, the Defence do not say -- it is not such a crude argument to

23 say that any breach of confidentiality gives a license to anyone to

24 publish with abandon so as to prejudice the proper administration of

25 justice; not a bit of it. But we do say -- and we do not say that any

Page 125

1 journalist can unilaterally arrogate to themselves the seat of moral

2 judgement to decide what the public should or should not know. We fully

3 accept that these decisions are for Your Honours, who make judicial

4 determinations. But what we do say is that this Tribunal, Judges of this

5 Court, made these facts public themselves.

6 Your Honours, we will prove, from public filings, that brother

7 Judges and sister Judges of this Court made the existence of these two

8 confidential decisions public; in particular, the fact that the decision

9 were made, the identity of the moving party, the confidential character

10 of those decisions, that the focus of those decisions had to do with

11 national interest. And, Your Honour, we will refer in due course to the

12 Milutinovic decision by the Appeals Chamber in 2006. There's decisions

13 in 2007. There's the Milosevic Trial Chamber decision of 2004, where the

14 factual matrix was made public by the Judges.

15 But what is the Defence argument in that case? The Defence

16 argument is unequivocal. It is that the Tribunal and the Judges of this

17 Court have the power to amend confidentiality orders, but the Rules do

18 not dictate any form by which confidentiality orders need to be lifted;

19 and it is not so mathematical a formula that every confidential decision

20 requires a formal decision of the Bench to render it public.

21 It is our respectful submission that by the end of this case,

22 Your Honours will be satisfied that the Tribunal, by actus contrarius,

23 may decide to lift the confidential nature of a decision, in whole or in

24 material particulars.

25 Your Honours, that, in fact, is borne out by Your Honour himself,

Page 126

1 Judge Moloto. If one looks at the decision of this case itself -- the

2 history of this case itself, one would, perhaps, remember that on the

3 19th of May, 2009, Your Honours rendered a confidential decision

4 pertaining to a Defence motion for leave to appeal against a decision

5 relating to the binding order request that we put towards the Registry.

6 Now, Your Honour, that decision, its existence, and its subject matter,

7 were confidential. There's no dispute about that. But, Your Honour,

8 Mr. President, during the Status Conference of that day, after the

9 decision was made public, Your Honour referred to the existence of that

10 decision, including the subject matter, including the purported effect,

11 and the fact that it was confidential, and Your Honour did that in public

12 session.

13 Now, there is absolutely no suggestion that that was improper or

14 that any Rule has been violated. Instead, what the Defence submit is

15 that this, even in this small case, is evidence that the confidential

16 nature as to the existence of the decision and its status could be lifted

17 by Your Honour, acting in a judicial capacity to act as a waiver or a

18 lifting to the extent that Your Honour has made facts public. Now, this

19 is an important part of the Defence case, as you will hear.

20 Your Honour, when assessing -- and before I move on there,

21 contrary to what my learned friend has opined, this goes directly to the

22 actus reus of the offence, the actus reus is very much in issue. It's

23 very much in issue, we say, because the Tribunal, acting actus

24 contrarius, lifted confidentiality to the extent that is asserted to be

25 criminal, when done by my client, there is simply no actus reus. So

Page 127

1 actus reus is in dispute unequivocally. And, indeed, as my learned

2 friend should know, he has the pre-trial brief, we've made it clear that

3 unless there's a clear waiver, every aspect of the case is in issue,

4 unless expressly agreed, and we put the Prosecution to strict proof on

5 all aspects, including most fundamentally and basically actus reus and

6 mens rea.

7 Your Honour, the other point is: It is germane to note that the

8 applicant, the person who -- the country, the state, that sought the

9 protections themselves have waived that confidentiality. How perverse

10 would it be, in the Defence respectful submission, that the applicant who

11 requests confidentiality can go 'round talking about the same facts, and

12 yet a journalist who repeats those facts should be held criminally

13 responsible?

14 Your Honour, in public session, in the International Court of

15 Justice, of course, one of the principal organs of the United Nations,

16 the representative of Serbia and Montenegro said publicly, on the 8th of

17 May, 2006, in the genocide case, and I quote:

18 "Madam President," and at that time it was Judge Rosalyn Higgins,

19 "Madam President, with all due respect to this honourable Court, the

20 representatives of Serbia and Montenegro are not entitled to discuss the

21 contents of the redacted sections of the Supreme Defence Council

22 documents for two serious reasons."

23 Your Honour, with your leave, I pause there. It's important to

24 note contents are mentioned, as opposed to what we say are the legal

25 reasoning and the decisions of a Bench. And, Your Honour, he states, the

Page 128

1 representative, one -- is the two reasons: The redacted sections were

2 classified by the Supreme Defence Council as a military secret, and

3 according to the confidential decision to the Council of Ministers of

4 Serbian Montenegro, as a matter of national security interest; and, 2:

5 "At this moment the redacted sections of the STC documents are

6 under protective measures imposed by the ICTY confidential order, and we

7 are obliged to respect that order."

8 But, Your Honour, what's important to note is that the applicant

9 did not seek protective measures, nor was he granted -- nor was the state

10 granted, by their own understanding, protective measures in relation to:

11 firstly, the fact that the state, Serbia and Montenegro, as it then was,

12 had applied for protective measures in relation to those documents;

13 secondly, that they were the applicant; thirdly, the reasons for the

14 application; and, fourthly, the fact that should measures be granted, the

15 existence of those measures remain confidential.

16 Your Honour, therefore, none of these matters, in our respectful

17 submission, when you look at this case in the 'round can be said to have

18 been germane to the confidential order or the confidential part of the

19 decision of the Appeals Chambers that rendered these decisions

20 originally.

21 Now, Your Honour, when one goes to mens rea, the public nature of

22 the decisions is relevant. This is not a statement of defiance, as my

23 learned friend fears. This is a matter of intent.

24 Six months before my client's book was published, two

25 world-widely -- globally distributed newspapers, "The New York Times" and

Page 129

1 the "International Herald Tribune," on the 9th of April, 2007, had

2 displayed articles -- written articles quoting exactly the same facts

3 that are included in my client's book, and not a whisper -- not a murmur

4 was heard from the corridors of this Court to say that "The New York

5 Times" or the powerful "International Herald Tribune" had acted in breach

6 of contempt. Now, Your Honours, this is different from the Haxhiu case

7 we will show. It's different from an argument that there's a public

8 secret. This is relevant to mens rea. The fact that two of the

9 highest-profile newspapers in the world have talked about and discussed

10 and critiqued the very decisions that my client, as a journalist, later

11 wrote about, is relevant to her intent, her belief that she was willfully

12 or knowingly interfering in any way with the proper administration of

13 justice.

14 Your Honour, an important feature of distinction, and we'll come

15 to this at the end in closing, is when one surveys the jurisprudence of

16 this Court, the Haxhiu cases and the other cases, one of the features are

17 the Tribunal is very prompt in acting after, for example, a witness's

18 name was made public. This case can be distinguished in many, many ways

19 from that.

20 Your Honour, for six months, no murmur. My client's belief that

21 what she did was lawful and proper and unremarkable, has been and will be

22 established by the Defence, and it is the Defence's strong belief that my

23 learned friend will be shown to have singularly failed in his

24 responsibility to prove a guilty mind, as it is his burden to do.

25 Your Honour, similarly, even earlier than that, on the 9th of

Page 130

1 March, 2007, the Institute of War and Peace Reporting had submitted a

2 detailed article, again, almost duplicating the areas that my client is

3 now asserted to have written about in criminal violation of her

4 responsibilities to the Court. Your Honour, the same argument applies in

5 relation to that. And, Your Honour, that's at 2 and 3 of our 65 ter

6 list, tab 2 and 3 of or 65 ter list.

7 Before I move on, I will -- it is important to bear in mind that

8 even back in 2005, the 17th of May, 2005, albeit before the

9 Appeals Chamber gave its orders, there was a very extensive special

10 investigation by the Institute of War and Peace Reporting, very extensive

11 report at tab 14, in which all these matters were discussed and made

12 public.

13 Your Honour, it is, therefore, our -- it will be our submission

14 that the mens rea aspect has not been proved.

15 Your Honour, as far as special privileges for journalists are

16 concerned, the matter is not straight --

17 JUDGE MOLOTO: May I remind you, Mr. Khan, we are not in closing

18 argument, but in opening statement. Nothing has been proved, indeed.

19 MR. KHAN: You were, when one is reviewing the Prosecution's

20 case, it must be viewed through the prism, in the Defence's respectful

21 submission, that this Court, established as it was to uphold the highest

22 standards of international justice, will view the accumulated years of

23 jurisprudence from other international and regional courts and bodies

24 carefully and view those cases as lending persuasive weight that will

25 inform Your Honours' exercise of discretion.

Page 131

1 In order to convict my client, my learned friend will have to

2 persuade Your Honours to set aside decades of jurisprudence from the

3 European Court of Human Rights. Your Honour, there are cases of

4 Webber -- there's the "Sunday Times" case known as the thalidimide case,

5 there is "The Observer" newspaper case, the spy-catcher case. All these

6 cases -- Strasbourg was clear. It said that in deciding whether or not a

7 restriction in the form of contempt served a legitimate objective or was

8 proportionate, one must look at several factors that we'll come to in the

9 closing brief, but, Your Honours, they include the right of

10 journalistic -- journalists to write as the watch-dog of society in

11 democratic pluralistic societies, and that's the watch-dog, not only the

12 executive, but all parts, including the judiciary and the legislature.

13 That's the first link. But the second is the public's right to know.

14 And, Your Honour, it is our submission that when one bears in

15 mind that the offence of contempt does not appear in the Statute of this

16 Court, but falls within your implied powers, your inherent jurisdiction,

17 in order to fulfill your overall mandate, it is critical not to overly

18 extend the envelope, not to overly extend the parameters of criminal

19 responsibility, so that they would stymie -- they would stymie freedom of

20 speech that is needed.

21 Your Honour, in short, every aspect of the Prosecution's case

22 will fall away. The witnesses that we will call, Natasa Kandic,

23 Mr. Joinet, will -- and Nura Alispahic, will demonstrate both the margin

24 of deference that is given under international human rights norms to

25 journalistic freedom -- although it's a qualified right, the European --

Page 132

1 the Strasbourg cases that we will refer to are almost on all fours with

2 the offence that is charged against our client. And, Your Honour, when

3 one is looking and critiquing my learned friend's case, we would ask you

4 not to be -- not to turn away from that jurisprudence. We are confident

5 that you will not. And if you do not, our client will be acquitted.

6 Your Honours, those are my submissions in opening, and I'm most

7 grateful.

8 JUDGE MOLOTO: Thank you very much, Mr. Khan.

9 Just before you call your witness, Mr. MacFarlane, you had raised

10 an issue earlier, and I don't think we did finally dispose of it, your

11 position as an intended witness for the Defence. I just wanted to say to

12 you that Mr. Khan indicated the number of witnesses that he's going to

13 call, and he's now indicated he's calling three and you're not one of

14 those. Does that dispose of your situation?

15 MR. MacFARLANE: Yes, it does, Your Honour. Thank you very much.

16 JUDGE MOLOTO: You may call your witness.

17 [The witness entered court]

18 JUDGE MOLOTO: Good morning, sir.

19 THE WITNESS: Good morning.

20 JUDGE MOLOTO: May you please make the declaration.

21 THE WITNESS: [Interpretation] I solemnly declare that I will

22 speak the truth, the whole truth, and nothing but the truth.

23 WITNESS: YORRIC FELIX KERMARREC

24 [The witness answered through interpreter]

25 JUDGE MOLOTO: Thank you very much. You may be seated.

Page 136

1 sales of this book up to date or the most recent figures that you have?

2 A. On June the 8th, some 3.799 books have been sold.

3 Q. Is the book still actively being sold by Flammarion?

4 A. Yes, the book is still being sold.

5 Q. Can you comment with respect to any sales or any other editions

6 in other countries? That is to say, did Flammarion have rights for other

7 editions in other languages in other countries or not?

8 A. Flammarion only has rights for French editions, and translation

9 rights in other countries belong to Ms. Hartmann.

10 MR. MacFARLANE: Thank you.

11 I have no further questions, Your Honours.

12 JUDGE MOLOTO: Thank you very much, Mr. MacFarlane.

13 Yes, Mr. Khan, Mr. Mettraux.

14 MR. METTRAUX: Good morning again, Mr. President. Good morning,

15 Your Honours. Bon jour, Mr. Kermarrec.

16 Your Honours, before we start, we have a number of binders, of

17 documents, which we intend to use in cross-examination of Mr. Kermarrec

18 and in cross-examination of Mr. Vincent, and with the assistance of the

19 Court usher, we'll have those distributed.

20 JUDGE MOLOTO: Thank you, sir.

21 MR. METTRAUX: There is a copy for each of Judges, for the

22 Registry, for our friend for the Prosecution, and for the witness.

23 Cross-examination by Mr. Mettraux:

24 MR. METTRAUX: Thank you very much, for that, and my apologies.

25 Q. Mr. Kermarrec, you discussed a moment ago with the Prosecutor the

Page 137

1 process of negotiation of a publishing agreement between yourself,

2 Flammarion, and Ms. Hartmann. Were you a party to these negotiation?

3 A. Personally, no.

4 Q. And can you indicate, perhaps, who, on behalf of Flammarion, was

5 responsible for those?

6 A. This was the responsibility of Gilles Haeri.

7 Q. And any other person at Flammarion who dealt with Ms. Hartmann in

8 relation to this agreement?

9 A. You have the direct publisher of Florence Hartmann,

10 [indiscernible], who has followed the publishing process.

11 Q. And can you explain, perhaps briefly, why Flammarion was of the

12 view that it should -- or that it was interested in publishing

13 Ms. Hartmann's book? Could you explain that?

14 A. Florence Hartmann was, before the negotiations, one of the

15 experts in international issues for Flammarion, and also she was -- she

16 knew about all the questions concerning Serbia. She had been a

17 journalist working for "Le Monde." She had followed all these cases.

18 She had published a book in 1999 on Milosevic, and she also acted as a

19 spokeswoman to Carla Del Ponte; and this is the reason why we wanted to

20 publish her book.

21 Q. And did you, and by "you,"I mean Flammarion, do you think it

22 would be of publish interests for a book of this sort that you and

23 Ms. Hartmann were negotiating about?

24 A. Yes, absolutely, since there was a very strong political

25 discussion on the -- on international justice and the genocide in former

Page 138

1 Yugoslavia. Therefore, it is obvious that for us, this was of public

2 interest [as interpreted], it was of very strong publish interest.

3 Q. Thank you. And simply for the transcript, at page 31, line 25,

4 it should be "of public interests."

5 In general terms, Mr. Kermarrec, are the books published and

6 produced by Flammarion protected by the freedom of expression?

7 A. Yes, all the books are protected by the freedom of expression.

8 JUDGE MOLOTO: Could you indicate a convenient moment where we

9 could take a break. [Microphone not activated] If it is a convenient

10 moment for you, but if it is not --

11 MR. METTRAUX: Your Honour, any moment convenient to Your Honours

12 would be convenient to us.

13 JUDGE MOLOTO: We usually take a break at quarter past. We'll

14 take a break and come back at quarter to 11.00. Court adjourned.

15 --- Recess taken at 10.16 a.m.

16 --- On resuming at 10.47 a.m.

17 JUDGE MOLOTO: Yes, Mr. Mettraux.

18 MR. METTRAUX: Thank you, Your Honour.

19 Q. Mr. Kermarrec, before the break I was asking you questions as to

20 whether the books published by Flammarion were covered by the principle

21 of freedom of expression, and you indicated that this was the case. Do

22 you recall that?

23 A. Yes, correct.

24 Q. And may I take it, perhaps, that this would be the case with the

25 book published by Ms. Hartmann; is that correct?

Page 139

1 MR. MacFARLANE: Your Honours, if I might rise at this point.

2 JUDGE MOLOTO: Yes, Mr. MacFarlane.

3 MR. MacFARLANE: I think we have a fundamental question that we

4 need to deal with at this point, and I would like to raise it, and that

5 is that the witness has been put forward as a fact witness, not as an

6 expert, and we seem to be moving more and more in the direction of

7 freedom of expression, whether the book in question is covered by notions

8 of freedom of expression, whether Flammarion -- what Flammarion's view is

9 on that. It seems to me that those are all issues for the Chamber to

10 consider in due course and are in the realm of issues of law, so I am

11 concerned that we're moving in a direction that's inappropriate, and I

12 thought I should raise it at this point.

13 JUDGE MOLOTO: Mr. Mettraux.

14 MR. METTRAUX: Your Honour, do you wish me to respond or should I

15 proceed?

16 JUDGE MOLOTO: Of course you have to respond.

17 MR. METTRAUX: Thank you, Your Honour. Well, I can reassure the

18 Chamber that I'm not going to ask Mr. Kermarrec to draw any expertise --

19 any type of expertise that he may or may not have, nor am I seeking from

20 him any legal conclusion that the Chamber might be minded to make or not

21 to make at the end of this case. What I'm seeking from this witness is

22 the confirmation of a number of facts that pertain to his work as a legal

23 adviser to Flammarion. This is the reason why he was called in the first

24 place.

25 There were persons at Flammarion who might be factually relevant

Page 140

1 to this case, Your Honour, who had taken part in this negotiation. These

2 people were not called. This person was called as the director of

3 Flammarion. This is the person that has been called and the reason why

4 he was called. I'm asking him questions that pertain to the course of

5 his work, in my respectful submission.

6 JUDGE MOLOTO: As long as you stay in the fact part and not move

7 into expertise.

8 MR. METTRAUX: I will do, Your Honour.

9 JUDGE MOLOTO: Thank you.

10 MR. METTRAUX:

11 Q. Could you indicate, perhaps, to complement the answer that you've

12 given a moment ago, why it is important from the point of view of a

13 publisher, like yours, Flammarion, that your publications be protected by

14 the principle of freedom of expression? Could you explain briefly why

15 that is important and relevant to you?

16 A. The freedom of expression for a publisher is really the core of

17 his activity, particularly for books -- for political books, or for books

18 in dispute, or books carrying certain opinions, and a publisher -- and

19 that this is a private service, because if they are disputed, concerning

20 the content of the books, they will no more be able to continue their

21 job, and the political stake is very important; and the publisher might

22 be placed in a position not to be able to publish books or to allow

23 people to express opinions concerning political issues or issues of

24 general interest. This is the reason why publishers really try to

25 support authors giving very strong political opinions.

Page 141

1 JUDGE MOLOTO: Who does this protection protect, sir? Does it

2 protect you, as the publisher, or does it protect the author, because

3 your answer is not quite clear.

4 THE WITNESS: [Interpretation] The freedom of expression protects

5 the publisher and the author, and they both do a common job, carry out

6 the job jointly.

7 JUDGE MOLOTO: Thank you.

8 MR. METTRAUX:

9 Q. Thank you for this answer, Mr. Kermarrec, and I'll give you the

10 warning that counsel generally receives. We'll ask you to slow down a

11 bit for the interpreters and the transcript, so they can follow your

12 words and translate them for the benefits of counsel and the rest of the

13 people in the courtroom.

14 You've also been asked about the sales of Ms. Hartmann's book by

15 my colleague. Do you recall that?

16 A. Yes.

17 Q. And do you recall perhaps indicating, I believe, that 3.799

18 copies had been sold of this book, as of 8th of June, 2009? Do you

19 recall that?

20 A. Yes, correct.

21 Q. And you were also asked by my colleague about what in English

22 would be referred as an advance, and I think the contract refers to the

23 French, "delavois [phoen]." Could you explain briefly what that means in

24 publishing terms?

25 A. The advance paid to the author is an advance on royalties and

Page 142

1 copyrights, and this means that the advance is compensated by the

2 author's publishing rights, which are paid for by royalties, and the

3 publisher starts paying the copyrights after the publication. Once the

4 advance has been paid by the copyrights, are such royalties or

5 percentages paid on sales.

6 Q. So perhaps to make that a little bit clearer for the Court,

7 Mr. Kermarrec, am I to understand that, in effect, you, Flammarion, paid

8 an advance of 15.000 Euro to Ms. Hartmann. And as the royalties, as you

9 call them, come in at Flammarion, these royalties are actually cashed in

10 by Flammarion and are deducted from the 15.000; is that correct?

11 A. Yes, the royalties have been deducted from the 15.000 Euros.

12 Q. And perhaps because my question was not the clearest, is that

13 correct that the royalties do not come on top of the 15.000, but they

14 actually are paid only as of the moment when more than 15.000 Euro have

15 been made in royalties; is that correct?

16 A. Yes, correct. And one may also add that to -- that the advance

17 is not compensated by the sales of this book, which means that

18 Ms. Hartmann's account in Flammarion is in the red.

19 JUDGE MOLOTO: The 15.000, do I understand, from the royalties,

20 not the royalties from the 15.000?

21 MR. METTRAUX: I can perhaps try to make it clear, Your Honour.

22 Q. Can you tell this Chamber, Mr. Kermarrec, how much royalties have

23 been cashed in at this point by Ms. Hartmann, approximately?

24 A. I'll try to explain that once again.

25 We have paid, all in all, 15.000 Euros, which -- 15.000 Euros are

Page 143

1 an advance on the copyrights to be paid. Given the sales of the book,

2 i.e., 3.799 books, I believe that the royalties amount to 5.000 Euros.

3 Today, the copyright of Ms. Hartmann is in the red for an amount of

4 10.000 Euros, which means that the future sales will come and reduce this

5 minus -- this 15.000 Euros. Once the 15.000 Euros are completely

6 compensated, Ms. Hartmann will be able to get a new amount from

7 Flammarion.

8 Q. And I think you've said --

9 JUDGE MOLOTO: Mr. Mettraux, if I may just ask you, from my

10 interpretation I keep hearing reference to copyright, and if you could

11 just clear that. Copyright and royalties to me are two distinct issues,

12 and --

13 MR. METTRAUX: I agree with Your Honour. I can indicate from the

14 French word that Mr. Kermarrec is using of royalties, this is the

15 entitlement to which Ms. Hartmann is entitled as of the contract which

16 pertains to the copyrights that are indicated in the agreement. This is

17 effectively the money she receives from the sales and for each individual

18 sales on the book. The copyright in English, as you said, is not quite

19 accurate in that respect.

20 Q. But may I clarify, perhaps, Mr. Kermarrec, with you, and I think

21 you've said it, but at this stage would it be correct to suggest that

22 Ms. Hartmann is actually in debt, vis-a-vis Flammarion, for approximately

23 10.000 Euro? Would that be correct?

24 A. Yes, correct.

25 Q. And perhaps to clear this issue, is that information which at any

Page 144

1 stage you communicated to the Prosecutor, Mr. MacFarlane?

2 A. To be honest, I don't really remember.

3 Q. And you've indicated, I believe, to my colleague that the book

4 continues to sell; is that correct?

5 A. Yes, the book is still on sale, yes.

6 Q. And are you aware of any effort or any request on the part of the

7 Prosecution to stop or prevent the sale of this book? Are you aware of

8 any such effort on his part?

9 A. No.

10 Q. You've also discussed the process of negotiation that took place

11 between Ms. Hartmann and your company, Flammarion. I would like to ask

12 you this: At the time when you entered into an agreement with

13 Ms. Hartmann, did you know of Ms. Hartmann as a trustworthy and reliable

14 author?

15 A. Yes, correct. Given her records, her resume, and since she had

16 been working as a journalist for one of the largest French newspapers, we

17 considered her experience to consider that she was an author trustworthy

18 to be reliable that could be published by Flammarion.

19 Q. And was her journalistic experience and her journalistic

20 reputation at all relevant to your decision to enter into an agreement

21 with her?

22 A. Yes, indeed.

23 Q. And would it be fair to say that in view of the fact that you,

24 Flammarion, decided to publish Ms. Hartmann's book, you were satisfied

25 with the journalistic work, the quality of the book that had been

Page 145

1 produced by Ms. Hartmann; is that correct?

2 A. Yes, we feel that, in Flammarion, that this is a book of a

3 certain quality.

4 Q. And do you have any reason to believe, Mr. Kermarrec, that the

5 book contained anything that is inaccurate?

6 A. No.

7 Q. And do you have any reason to believe that it contains anything

8 false or untrue?

9 A. No.

10 Q. Do you have any reason to believe that Ms. Hartmann wrote that

11 book in anything other than plain good faith?

12 A. Absolutely not.

13 Q. And at the time of publishing this book, did you have any reason

14 to believe that the book contained material, which, at the time of

15 publication, was still protected by confidential orders, the disclosure

16 of which could have criminal consequences? Did you have any reason to

17 believe this was the case?

18 A. No.

19 Q. And do you have any reason to believe that Ms. Hartmann would

20 have tried to mislead Flammarion as to the content of her book?

21 A. No, I don't think so either.

22 Q. And in light of the good name and reputation that you've said you

23 were aware of, the good name and reputation of Ms. Hartmann, do you have

24 any reason to believe that Ms. Hartmann hid from her publisher,

25 Flammarion, that the book contained contemptuous material or material

Page 153

1 experience so far as states are concerned. And putting it very, very --

2 I hope simply very bluntly is the fact that tribunals in the

3 international scene, and indeed the Lebanon Tribunal, which I am involved

4 in at the moment, faces a significant challenge in terms of the level of

5 cooperation that these tribunals can get from states in a number of

6 regards. And what I would say is that it's, I think, fairly obvious that

7 if there is any lack of confidence in the tribunal, so far as the state

8 is concerned that's in a position to provide evidence which is crucial to

9 that particular tribunal, once its recognised that there has been or may

10 well be dangers of breaches, then it's unlikely that the cooperation that

11 tribunal seeks will actually be forthcoming.

12 MR. MacFARLANE: Thank you. No further questions.

13 JUDGE MOLOTO: Mr. Khan.

14 Cross-examination by Mr. Khan:

15 Q. Mr. Vincent, good morning.

16 A. Good morning.

17 Q. It is still the morning. Is it correct, in your experience, that

18 there is a whole range of -- is it correct, in your experience, that a

19 mere breach of a confidential order need not give rise to harm, to any

20 prejudice to the administration of justice?

21 A. I have to say I'm interested in the description of a mere breach.

22 Have I -- do I have experience of situations where there has been, as a

23 result of an administrative error or because perhaps the identity of a

24 witness has become known, has there been a cataclysmic impact so far as

25 that tribunal is concerned? No. I have experience of that, but

Page 154

1 certainly it's something which every tribunal/court, whether it's

2 national or international, would seek to avoid. So I think every such

3 instance of that does, in itself, have some impact. And I think if there

4 is a situation where, for instance, a tribunal was seen from the outside

5 world as consistently or at any stage being perhaps prone to breaches of

6 confidentiality, I think it does have a serious impact on that

7 organisation. But it has happened in the past with -- I certainly can

8 think of a couple of instances where witnesses -- confidentiality of

9 witnesses has been breached, once deliberately, I can remember in

10 Sierra Leone, and on a couple of occasions accidentally. It doesn't

11 actually enhance the reputation of the tribunal, and it certainly can

12 cause difficulties for the future.

13 Q. Indeed. And is it correct that often courts, for example, such

14 as the Special Court for Sierra Leone, based as it is in the conflict or

15 the former conflict zone, in those courts, as well as this Tribunal and

16 at the Lebanon Tribunal, the issue of witness protection is the --

17 perhaps one of the most vexing questions that is faced regarding

18 confidentiality; that's one of the issues that is of the most critical

19 importance? Would you agree with that?

20 A. I would certainly agree. Whether it's vexing, it's certainly

21 challenging. And it's something which is crucial to that particular

22 institution, especially if there are any concerns from those who may find

23 themselves being asked to give evidence.

24 Q. And, of course, the reason it is vexing or challenging is because

25 of the most direct consequences that could take place to a witness

Page 155

1 should, for example, his or her name be revealed?

2 A. Yes, that's correct, and I think the -- if I could add, is that,

3 of course, the issue frequently is - and I mentioned Sierra Leone as one

4 example - is if the breach of confidentiality, so far as a witness is

5 concerned, is seen to be deliberate, then of course that's a completely,

6 wholly different ball game to one where there is an inadvertence

7 administrative error.

8 Q. Yes. But in answer to my question, the reason why it's of most

9 direct interest is because of the possible consequences of a breach to a

10 human being?

11 A. Certainly, so far as witnesses are concerned, yes.

12 MR. KHAN: Now, perhaps if the witness can be shown, I think --

13 has the document been distributed from Sierra Leone? Just one moment.

14 Mr. Vincent, it's not in that binder, the first document. It's a

15 later edition. To the Judges first, please.

16 JUDGE MOLOTO: Mr. Usher, I guess before you give the witness

17 that document, you must pass it by his learned colleague. Thank you.

18 MR. KHAN: Your Honour, there are copies, of course, for my

19 learned friend, for the Registry, and for Your Honours. I hope they'll

20 be distributed.

21 Your Honour, if my learned friend has seen it, may the copy be

22 handed to the witness, with your leave?

23 JUDGE MOLOTO: Mr. MacFarlane?

24 MR. MacFARLANE: I am seeing it and reading it for the first

25 time. There has not been any discussions --

Page 156

1 JUDGE MOLOTO: Do you know what you are reading, because I've got

2 several pages which are flagged. I am not sure which of these documents

3 has been given to the witness or is he receiving all?

4 MR. KHAN: Your Honour, they are identical bundles.

5 JUDGE MOLOTO: Okay.

6 MR. MacFARLANE: I have -- a number are flagged on the material I

7 have, but I -- this is the first time I've seen it. I have no idea what

8 the contents are.

9 MR. KHAN: Well, Your Honour, if my learned friend is patient, he

10 will get to the documents in a moment. This is, of course,

11 cross-examination. For the time being, all I'm asking is if the document

12 that my learned friend has, if he is content, it is the same document I

13 am seeking to show to the witness. That's the limit of what I'm seeking

14 to do at this juncture.

15 JUDGE MOLOTO: That is the limit of my question to you, Mr. --

16 MR. MacFARLANE: I have a document with four flags on it and a

17 yellow sticky, and that's what I have.

18 JUDGE MOLOTO: Thank you very much, sir.

19 You may proceed, Mr. Khan.

20 MR. KHAN: Mr. President, I'm most obliged.

21 Q. Mr. Vincent, if you can peruse those documents for a moment.

22 They are very short. There's four tabs. The first, details, Rule 52 and

23 53 of the Special Court for Sierra Leone, Rules and Procedure of

24 Evidence. Are you familiar with those Rules?

25 A. Yes, I am.

Page 157

1 Q. And at tab 2, you will see the date the 7th of March, 2003, a

2 decision by Judge Bankole Thompson, approving the indictment and ordering

3 non-disclosure in relation to the case against Charles Ghankay Taylor.

4 Do you see that?

5 A. I do, yes.

6 Q. And, no doubt, you will see at tab 2 your name, detailed as the

7 Registrar?

8 A. That's correct.

9 Q. And you were the Registrar on the 7th of March, 2003, were you

10 not?

11 A. I was, yes.

12 Q. And at -- you will see on the decision dated the 7th of March

13 that His Honour Judge Thompson -- [French spoken on English channel]

14 JUDGE MOLOTO: I'm sorry, Mr. Khan, suddenly we are getting the

15 French translation through what is supposed to be an English channel.

16 MR. KHAN: Well, Your Honour, perhaps that will --

17 JUDGE MOLOTO: Hold on, Mr. Khan. Let the technical people sort

18 it out for us.

19 Madam Registrar? It is okay now?

20 Thank you. You may proceed, Mr. Khan.

21 MR. KHAN: Your Honour, I was going to say if it is -- if I was

22 being translated into French, I lived in the hope that I would come

23 across somewhat more eloquently than I do at the moment.

24 Q. Mr. Vincent, if you can look at, first of all, Rule 53, and if

25 you look at paragraph B of that Rule, can you see it detailed, as a

Page 158

1 Rule for the Court of which you were the Registrar, that when approving

2 an indictment, the designated Judge may, on application of the

3 Prosecutor, order there be no disclosure of the indictment until it is

4 served on the accused, or in the case of a joint accused, all of the

5 accused? Do you see that?

6 A. I do see it, yes.

7 Q. I'm grateful. And if you could turn over the page to tab 2, and

8 that's the 7th of March decision. And on the page, the penultimate

9 paragraph, above Judge Bankole Thompson's signature, you will see that

10 the learned Judge, seized of that matter in that Court, ordered that the

11 indictment, the warrant of arrest, and the transfer and detention, remain

12 confidential until further order; do you see that?

13 A. I see that, yes.

14 Q. Now, if you can turn over the page again, you will see a press

15 statement from the Prosecutor of the Special Court for Sierra Leone, the

16 then Prosecutor, Mr. David Crane. Do you see that press release dated

17 the 4th of June?

18 A. I do, yes.

19 Q. And would you agree with me, after perusing it, that Prosecutor

20 David Crane made public the fact that an indictment had been issued? Can

21 you see that?

22 A. I can, yes.

23 Q. And the date is the 4th of June?

24 A. It is, yes.

25 Q. If you can turn the tab once more, can you see a decision of

Page 159

1 Judge Pierre Boutet, dated the 12th of June, 2003?

2 A. Yes, I can.

3 Q. And that's an order for the disclosure of the indictment, the

4 warrant of arrest, and the order for transfer and detention, and the

5 decision approving the indictment, an order for non-disclosure; is that

6 correct?

7 A. That's right, yes.

8 Q. And you'll see once again in the penultimate paragraph that

9 learned Judge ordered, on the 12th of June, that the indictment and the

10 warrant be made public; is that right?

11 A. That's right, yes.

12 Q. Would I be correct in understanding or would you agree with me

13 that the only -- or a reasonable conclusion for David Crane's going

14 public on the 4th of June, 2003, that an indictment had been issued and a

15 warrant obtained, was that as the applicant for those protective

16 measures, it was considered he could make that fact public without a

17 direct court order? Would you agree with that conclusion?

18 A. Certainly, in the circumstances of this particular case, that was

19 the view that was taken, yes.

20 Q. I'm grateful. Now, if you could go to tab 12 of the file. And

21 just one moment. I should ask : There was never at any stage any

22 allegations of contempt against Mr. David Crane, was there, for going

23 public on the indictment?

24 A. No, there wasn't, but certainly there were -- there were,

25 I think, seen to be extenuating circumstances so far as that particular

Page 160

1 action was concerned. And he was an officer of the court.

2 I'm sorry, tab 12?

3 Q. Yes. And garbed as David Crane was with the role of high office,

4 being the Prosecutor, did that give him some particular special

5 authorities in relation to an order of the judiciary that a member of the

6 public would not enjoy? Is that what you're saying, Mr. Vincent?

7 A. What I'm saying is, is that as I recall the circumstances, that

8 the opportunity for the indictment to be served, and other details,

9 presented itself unexpectedly and very late around that time. I can't be

10 precise whether it was the 3rd of June or the 4th of June, but certainly

11 as will you will probably know, that was on the information having been

12 provided to the Prosecutor that the person, the subject of the indictment

13 and the arrest warrant, had, in fact, for the first time left his own

14 country, and the Prosecutor felt that he had to act in the best

15 interests. What contact he had -- emergency contact he had with the

16 Judge of the Trial Chamber, I was not aware, but I was instructed to

17 serve the papers on the respective diplomatic officials that evening and

18 the following morning to coincide with the person who was subject to that

19 order arriving in a car.

20 Q. Mr. Vincent, I don't want to delay you too long. I'm not asking

21 you about your own conduct, and forgive me if I wasn't clear. Let me go

22 back to the question.

23 Is it your contention to Their Honours that the official position

24 of an individual as a Prosecutor gives him particular rights, vis-a-vis

25 orders of the Bench, that members of the public do not enjoy? Is that

Page 161

1 your contention, yes or no?

2 A. Certainly. Can I say straightaway that I wasn't attempting to

3 defend my conduct. The situation was that in the circumstances, I

4 believed that he had the authority to do that, in the particular

5 circumstances, in the best interests of justice.

6 Q. Yes. And one of the reasons motivating you to that conclusion,

7 perhaps, is the fact that as the applicant for those protective measures,

8 he could decide that those measures were no longer necessary, albeit in

9 the interests of - how did you put it - in the interest -- in the best

10 interests of justice?

11 A. Yes.

12 Q. Can we go to tab 12, please.

13 A. I'm at tab 12, yes.

14 Q. Can you see that document? It's a CNN news report.

15 A. Yes.

16 Q. And can you see that CNN's Christiane Amanpour stated that:

17 "An indictment in relation to Slobodan Milosevic is likely to be

18 handed down this week, perhaps as early as Thursday. Details on the

19 indictment are not available. Other people may be named. The Tribunal

20 would not comment on the report?"

21 Do you have any knowledge of the Milosevic case?

22 A. Only that which I picked up from press reports and also somewhat

23 belatedly after I was here for five months.

24 Q. And would it be a fair conclusion, from reading this report, that

25 perhaps Christiane Amanpour made public that an indictment was imminent

Page 162

1 before the indictment had been publicly made available by the Court? Is

2 that a fair reading of the news report?

3 A. With respect, no, I don't think it is. I think it's pure

4 speculation, and speculation is rife around all the international courts

5 and tribunals. And I think for every press release that you will show

6 me, I could probably give you 10 or 15 which happens around the

7 Lebanon Tribunal in the last three months, none of which have had any

8 factual base or accuracy, but have been pure speculation.

9 Q. Well, bear with me for a moment. You see the second paragraph --

10 are you familiar with Christiane Amanpour in your work as Registrar of

11 various courts?

12 A. Yes, I have met her, yes.

13 Q. Would it be fair to say that she is one of the most

14 well-respected commentators on the news media?

15 A. I think that's a fair assessment, yes.

16 Q. She's not an individual given for wild conjecture, is she, in

17 your experience?

18 A. No. But with experience, of course, comes, perhaps, a better

19 understanding of the events within tribunals. But with the greatest of

20 respect, whether she is experienced or otherwise, my reading of this is

21 it's speculation. I mean, the word "likely" gives that away, I think.

22 Q. Yes. And if you see in paragraph 2, the speculation seems to be

23 quite specific, because she states that the indictment is likely to be

24 handed -- "is likely to be handed down this week, perhaps as early as

25 Thursday."

Page 163

1 A. Yes.

2 Q. It's quite specific speculation, is it not?

3 A. Well, speculation comes in a series of forms, but "likely" is

4 still, as far as I'm concerned, the word that actually controls all that.

5 Q. Yes. And if I told you that the indictment, indeed, did come

6 down, was made public in that week, would you think perhaps that it would

7 make the report accurate, would it not?

8 A. It certainly would do, but as I understand, tribunals don't

9 normally go through a series where they look at speculation and then tick

10 a box whether it's right or wrong. I suspect that probably, in your

11 distinguished career, you'll come across many such press reports which

12 have subsequently disappeared and sunk without trace and have never

13 proved to be true.

14 Q. But in this particular case, in this particular case, if you had

15 been the Registrar at the time, would any alarm bells have sounded from

16 this report?

17 A. If I had been Registrar at the time, one is always concerned

18 about speculation if it appears from your knowledge to have some basis of

19 truth, but the situation is, as I say, again based on my experience, I

20 have reached the stage where I have become, to a certain extent, somewhat

21 kind of cynical with reporting from the press in a number of respects, so

22 you read it as it is. I think if there is -- if there was details which

23 actually talked about names, events, et cetera, then I would be concerned

24 that there would have been a breach of confidentiality, and I would have

25 perhaps looked internally to see where it might have come from.

Page 164

1 Q. And you can see, of course, in the first paragraph the name

2 Slobodan Milosevic is mentioned; you can see that, can you not?

3 A. Yes.

4 Q. If you go to the second page, it's another CNN news report, and

5 it states much the same thing, but what it adds is that the Tribunal

6 would not comment on the report, but would hold a news conference "on

7 Thursday."

8 A. Yes.

9 Q. And it gives these details. So these types of reports were

10 commonplace; is that right?

11 A. Yes. I think they are in my experience of all the tribunals,

12 there is a -- there is a huge -- and it's a phrase I'm not sure exactly

13 that it covers the issue, but known as the "feeding frenzy," so far as

14 the press are concerned. And there is always a significant amount of

15 speculation, but there is in life generally, and just eventually somebody

16 gets it right.

17 Q. Yes. So you think with Christiane Amanpour, it was just potluck?

18 A. No, I don't think it's potluck, but, I mean, you, yourself,

19 referred to her experience, and that is why she's respected. I mean, she

20 certainly has a significant understanding amongst the international press

21 of events, and so, therefore, it's not unusual sometimes that things --

22 people can put 2 and 2 together and actually make 4 or 5, and so, no, it

23 doesn't come as any surprise to me, and it's fairly commonplace in these

24 tribunals.

25 Q. And, of course, being a fair individual, and, of course, as

Page 165

1 Registrar you're known as being fair between the parties, in that

2 capacity and the capacity, of course, as a witness, would you agree that

3 it is in the interests of the various courts that you have worked in for

4 there to be proper discussion, debate, and critiquing of the work of

5 these various international legal institutions that you would not wish to

6 stifle?

7 A. I could not agree with you more. I think it's incredibly

8 important that the work of these tribunals is transparent, and I think

9 it's the job of the Registrar, who is normally given the responsibility

10 so far as outreach and present public affairs is concerned, is that he or

11 she does their utmost to see that that happens. However, there is a very

12 definite line between that and the discussion, through outreach, or

13 through present public affairs, or any other medium, so far as decisions

14 of the Trial Chamber is concerned or Appeals Chamber. Judicial process

15 is something which has to be respected by the Registry and, indeed, all

16 concerned.

17 Q. If you can turn to tab 31.

18 And, Your Honour, while the witness is turning to that, I did

19 intimate, at the outset, there is a large number of documents. I'm not

20 going to take Mr. Vincent's time or, more importantly, Your Honours' to

21 go through each of those documents; but in the end, I will seek to tender

22 all of them, the documents detailed in this section, from the Bar table.

23 Mr. Vincent, you see the tab 31. It's a decision of the then

24 President of this Tribunal, Judge Pocar, dated the 27th of April, 2007?

25 A. Yes, I do.

Page 166

1 Q. I'm most grateful. And if you'd turn the page, can you see the

2 second paragraph?

3 A. Yes, I can, starting: "Noting the decision ."

4 Q. Yes. Can you read that, please?

5 A. "Noting the decision on request of Serbia and Montenegro for the

6 review of the Trial Chamber's decision of 6 December 2005, rendered

7 confidentially by the Appeals Chamber on 6 April 2006."

8 Q. I'm most grateful. Working in these various courts, there's

9 nothing unusual, is there, about various Chambers referring to the

10 existence of various confidential decisions in their filings, in their

11 public filings, I should add?

12 A. It's not unusual, no.

13 Q. And you see there that from these two lines from

14 President Pocar's decision, his order, that you see who the applicant was

15 in that case; it's Serbia and Montenegro, is it not?

16 A. It is, yes.

17 Q. You see that a decision is filed confidentially; is that right?

18 A. That's right, yes.

19 Q. And you see the date of the decision being the 6th of April,

20 2006?

21 A. Yes, I do.

22 Q. And that, sir, wouldn't have raised any eyebrows in your time

23 when you were the Registrar?

24 A. It's very much a matter for judicial discretion. I mean, it's an

25 order -- it's an order of the Chamber. Presumably the wording of the

Page 167

1 order was something that was revealed to the Registrar at some stage, and

2 if the Registrar felt, in this particular case or any particular case,

3 that there was perhaps some advice that he or she could give, or perhaps

4 a comment on that, it would be a matter for the Registrar. I have to say

5 again, from my experience, is that this is not the first document I've

6 seen where such a confidential decision has been referred to, but then

7 again I can remember occasions when, in fact, a Chamber has avoided, for

8 some particular reason, making reference to a confidential decision that

9 was rendered. I can't speak as to the backgrounds of this.

10 Q. No, I'm not asking you to, I'm not asking you to at all, so

11 forgive me if I was misleading. What I'm trying to say is: From your

12 understanding and experience, a Bench can best determine -- or a judge of

13 these courts can best determine how to handle a confidential decision;

14 would you agree with that?

15 A. I would have thought that's the ultimate situation, yes.

16 Q. And the status of a confidential decision can be varied by a

17 judge in a number of ways; would you agree with that?

18 A. Yes.

19 Q. If you can turn to tab 32, I'd be most grateful. And once there,

20 if you can see the cover page, this is a public decision of the

21 Appeals Chamber of this Court, dated the 12th of May, 2006 --

22 A. Yes.

23 Q. -- in the Milutinovic case. And it's a decision on the request

24 of the United States of America for review.

25 A. Yes.

Page 168

1 Q. Is that correct?

2 A. That's correct.

3 Q. Now, if you would be so good as to go to paragraph 6.

4 A. Yes.

5 Q. And if you go to -- well, go over the page first to footnote --

6 to footnote 7.

7 A. I'm struggling to find footnote 7, if we're still looking at

8 paragraph 6. I have --

9 JUDGE MOLOTO: It will be on page 3, sir.

10 MR. KHAN: Yes.

11 JUDGE MOLOTO: Page 3 of that decision.

12 THE WITNESS: Your Honour, thank you. Yes, I'm with that.

13 MR. KHAN:

14 Q. Can you see there, in footnote 7 on page 3, that reference is

15 made to a Milosevic decision of the 6th of April, 2006?

16 A. Yes, I can.

17 Q. And this is in the same public filing that we were talking about

18 a moment ago?

19 A. Yes, yes.

20 Q. Now, at this juncture, if you could turn to page 4, and if

21 briefly you can peruse -- just glance at footnote 14, 15, 16, 17, 20, 66,

22 78, 79. Would I be correct in saying that those refer to Milosevic

23 decisions of that date?

24 A. It certainly appears so, yes.

25 Q. And if I told you that those decisions were confidential, you

Page 169

1 wouldn't think reference to the existence of that jurisprudence was

2 anomolous in that public filing?

3 A. Yes, can I just be entirely sure that which you're putting to me,

4 Mr. Khan, is that we are -- are you saying that all these footnotes refer

5 to the same decision?

6 Q. All these footnotes relate to Milosevic decisions.

7 A. To Milosevic decisions, not to the one of 2006 alone?

8 Q. No.

9 A. Okay, fine. I'm with you now. Thank you. I've spotted one for

10 2005, yes.

11 JUDGE MOLOTO: If you could just be clear, sir, are you

12 suggesting, Mr. Khan, by any chance, that those footnotes reveal

13 jurisprudence?

14 MR. KHAN: Your Honour, they reveal the existence of confidential

15 decisions, including the names, as I've mentioned, in relation to the

16 earlier document, the names of the applicants, the date, the decision,

17 and the fact that it's confidential. And as mentioned in the opening,

18 these are part of the allegations that are raised against my client in

19 support of the contempt charge that she faces.

20 JUDGE MOLOTO: For the sake of expediency, could you just limit

21 yourself to the question that's put to you? I was just asking you: Are

22 you suggesting that those footnotes reveal the jurisprudence, any

23 jurisprudence?

24 MR. KHAN: Yes, Your Honour. The existence of cases are part of

25 the jurisprudence of the Court.

Page 170

1 JUDGE MOLOTO: Thank you very much. Thank you. Thank you.

2 MR. KHAN:

3 Q. Mr. Vincent, if you could be so good as to go to -- well, I think

4 jump to tab 35.

5 A. Yes, I'm with you.

6 Q. And if you can go to paragraph 12.

7 A. Yes, I'm with 12.

8 Q. And can you say, very briefly, that that paragraph refers to

9 the -- paragraphs 11, in fact, and 12 -- 11 refers to STC documents?

10 A. It does, yes.

11 Q. Paragraph 12 refers to International Court of Justice proceedings

12 that are pending?

13 A. It does, yes.

14 Q. At paragraph 13, the Prosecution submits that Serbia-Montenegro's

15 collateral interest in the ICJ cannot excuse its noncooperation with the

16 production of documents concerning the most serious war crimes in this

17 case? Do you see that?

18 A. That's correct, I see that, yes.

19 Q. You see footnote 16 on page 6. It details some 67 documents

20 provided by Serbia-Montenegro?

21 A. That's correct, yes.

22 Q. And if you go to the cover page, you'll see that that filing by

23 the Prosecution is dated the 20th of May, 2003?

24 A. Yes, that's correct, yes.

25 (redacted)

Page 171

11 Page 171 redacted.

Page 175

1 Q. And if you go to that -- the second page of that judicial order,

2 it was on the 16th of January that the then President of this Court,

3 Judge Robinson, instructed the Registry to lift the confidential status

4 of the order and to order that it, therefore, be considered public; is

5 that right?

6 A. That's right, yes.

7 Q. If you could --

8 JUDGE MOLOTO: Are you still going to be some time?

9 THE INTERPRETER: Microphone, please.

10 MR. KHAN: I hope to be finished in five minutes.

11 JUDGE MOLOTO: Because it's about time for the next break.

12 MR. KHAN: Your Honour, if you wish to have a break, we can

13 resume afterwards.

14 JUDGE MOLOTO: Thank you very much.

15 We'll take a break and come back at half past 12.00. Court

16 adjourned.

17 --- Recess taken at 12.02 p.m.

18 --- On resuming at 12.34 p.m.

19 JUDGE MOLOTO: Mr. Khan.

20 MR. KHAN: Mr. President, Your Honours, I'm grateful.

21 Before I resume with Mr. Vincent, may I just read into the record

22 a correction, a corrigendum to the filing that we made this morning, the

23 15th of June, 2009. It's the Defence response to the amicus prosecutor's

24 submission of redacted exhibits, and at paragraph 30, page 10 of that

25 Defence filing, at subparagraph (2), we state that:

Page 176

1 "Using the mechanism provided for in footnote 25 of its decision

2 of the 19th of May, 2009, the Trial Chamber should be asked to provide

3 clear and candid answers to the three Defence questions."

4 It is, of course, a mistake, and I'm grateful to your senior

5 legal officer for pointing it out to us. I would ask that "Trial

6 Chamber" be deleted, and it should be replaced with "the amicus

7 prosecutor." Your Honour, I just read that into the record. We do not

8 intend to file a written corrigendum, unless Your Honours deem it

9 necessary.

10 JUDGE MOLOTO: Thank you, Mr. Khan.

11 MR. KHAN:

12 Q. Mr. Vincent, we were turning, I believe, to tab 40. Can you see

13 that document?

14 A. Yes, I can.

15 Q. It is marked "Confidential," is it not?

16 A. It is, yes.

17 JUDGE MOLOTO: We are not in private session.

18 MR. KHAN: I know.

19 Q. It is marked "Confidential," is it not?

20 A. It is, yes.

21 Q. Are you familiar with the practice direction of the ICTY

22 regarding contempt?

23 A. Not comprehensively, no, but I am -- I'm aware of the background

24 and the outline, yes.

25 Q. Would you take it from me that Article 12 of that practice

Page 177

1 direction requires that the completed report of the amicus investigator

2 shall be submitted confidentially to the Registrar for all -- for onward

3 transmission to the Chamber?

4 A. I would take it from you, yes.

5 Q. I'm grateful. Turning to tab 41, you will see, no doubt, a

6 public document. It is the order in lieu of indictment on contempt in

7 this case. Can you see that?

8 A. I can, yes.

9 Q. It is dated the 27th of August of 2008; am I right?

10 A. That's right, yes.

11 Q. The specially-appointed Trial Chamber, being presided over by

12 Judge Agius?

13 A. Yes. That's right.

14 Q. If you turn to page 2, looking at paragraph 1, you will see, in

15 the final sentence, that reference is made to the amicus curiae's report;

16 is that right?

17 A. That's right, yes.

18 Q. Would you agree, and this has some cross-over with my earlier

19 questions, that the Bench could decide how, or in what way, or in what

20 manner, it chose to vary any confidential document emanating from this

21 Tribunal?

22 A. As long as it was at that stage within the Rules of Procedure and

23 Evidence agreed by the plenary, I would say yes.

24 Q. And if you could turn over to tab 42.

25 A. Yes.

Page 178

1 Q. Again, this is a public document, is it not?

2 A. It appears so, yes, it is.

3 Q. Filed on the 1st of December, 2008, in this case, the case

4 against Florence Hartmann; is that right?

5 A. That's right, yes.

6 Q. And if you look at paragraph 1, once again, the Bench, presided

7 over by Judge Agius, refers to the confidential response to the motion

8 that had been filed, so the Prosecution's confidential response is

9 referred to in a public filing? You can see that, can't you?

10 A. Yes, I can, yes.

11 Q. If you go to tab 43 -- can you see that?

12 A. I can, yes.

13 Q. Can you go to paragraph 9 for me, please?

14 A. Yes, I'm there.

15 Q. And can you see that at paragraph 9, the amicus again refers to

16 the confidential report?

17 A. Yes.

18 Q. And if you look at paragraph 17 for me, please, again reference

19 is made to the report, "as was noted in the report," can you see that?

20 And it gives details as to the contents of the report. Can you see that?

21 A. I'm just checking, this is 17, yes, as noted in the report.

22 Q. "No knowing and willful interference with the administration of

23 justice," and it refers to case law on that.

24 A. Yes.

25 Q. Paragraph 19, again reference to the same confidential report?

Page 179

1 A. Yes.

2 Q. I won't go through all of them. Paragraph 23, you'll see the

3 same reference, [Overlapping speakers] ... detention?

4 A. I'm with you, yes.

5 Q. So, again, the amicus prosecutor in this case is referring to the

6 existence of a report and also alluding to the contents of the report,

7 stating that the report fairly brought to the attention of the Chamber,

8 the Defences, and the points of argument, so on and so forth; you see

9 that?

10 A. Yes, I do, yes.

11 Q. Would you agree with me that an express decision is not required

12 by a Bench to change the status of a confidential decision?

13 JUDGE MOLOTO: Yes, Mr. MacFarlane.

14 MR. MacFARLANE: Thank you, Your Honours.

15 It seems to me that that's a pivotal question in these

16 proceedings. It involves a question of law, and I submit that the

17 witness ought not to be placed in the position of having to answer that.

18 That's an issue for this Chamber to consider.

19 JUDGE MOLOTO: Mr. --

20 MR. KHAN: Well, Your Honour, it is a pivotal question, and no

21 doubt that's why my learned friend rose to his feet. But in my

22 submission, it's completely consistent with the focus of this witness's

23 testimony. He is explaining, from his accumulated experience in various

24 ad hoc and special courts, what the practice is regarding the filing of

25 documents. My question touches upon the practice of the courts that no

Page 180

1 doubt my learned friend objects, because his primary contention is that

2 there's a very rigid rule; unless there's an express waiver, an express

3 decision from a Bench or from a single Judge, stating that this

4 particular decision, decision X, Y, or Z, is formally made public, it

5 remains confidential, and the focus of the Defence cross-examination is

6 that no such rule exists; not that it's more honoured in the breach than

7 the observance. No such rule exists.

8 And at the end of the case, once we get to the stage of closing,

9 Your Honours will look at the practice of the Benches of this Court and

10 other courts and will come to the irresistible conclusion that, in fact,

11 Your Honours do vary the nature of decisions for -- on a case-by-case

12 basis, and it's within your discretion. So, Your Honour, it goes to this

13 point that I alluded to in my opening speech, and it is a proper

14 question.

15 Of course, it's not going to the ultimate issue. That's for

16 Your Honours -- completely in Your Honours' hands at the end of the day.

17 But in my respectful submission, the objection should be summarily

18 overruled.

19 JUDGE MOLOTO: Mr. Khan, it is the view of the Chamber that that

20 is the ultimate question to be answered by the Bench, number one.

21 Number two, to the extent that you say -- you ask the witness to

22 tell you whether Benches can make confidential documents public, that

23 question has been asked and answered. The witness said to you a few

24 minutes ago, yes, of course, a Chamber can do that, provided that it is

25 done according to the Rules of Procedure and Evidence. And I'm afraid

Page 181

1 we'll have to sustain the objection.

2 MR. KHAN: Well, Your Honour, I'll move on. Of course, it went

3 to my original submission that there is this species, very well-practiced

4 species --

5 JUDGE MOLOTO: Sorry. Are you still arguing the objection?

6 MR. KHAN: No, I'm not. I'm, for the record, for the record I'm

7 clarifying --

8 JUDGE MOLOTO: The Chamber has ruled. Move on with your next

9 question.

10 MR. KHAN: Well, Your Honour, with the greatest of respect, I

11 must, for the sake of the record, for appeal, be allowed to clarify what

12 my response was, lest there be any misunderstanding.

13 JUDGE MOLOTO: The ruling was made on what you said before your

14 clarification. What you have to appeal, if you have to appeal, is the

15 ruling, you can do so and argue your clarification before the

16 Appeal Chamber.

17 MR. KHAN: Your Honour, I will do as instructed.

18 JUDGE MOLOTO: Thank you.

19 MR. KHAN: I will do as instructed.

20 Perhaps the witness can be shown the decision of Prosecutor and

21 Rasim Delic, the 14th of January, 2008, presided over by Your Honour. If

22 that could be distributed, please.

23 Your Honours, I do apologise. It seems that we are one

24 document -- one copy short. I wonder perhaps if one of Your Honours

25 could share for the time being - I do apologise - and we will endeavour

Page 182

1 to get an additional copy at the next break. I do apologise.

2 Your Honours, I'm most gracious. Thank you.

3 Q. Mr. Vincent, looking at the first page of that document, you will

4 see the Bench, will you not?

5 A. I do indeed, yes.

6 Q. And the Presiding Judge is who?

7 A. Judge Patrick Robinson.

8 Q. Sorry, are you looking at the decision on the motion to vary the

9 decision on the sixth Prosecution motion for the admission of evidence

10 pursuant to Rule 92 bis?

11 A. I'm now looking halfway through the document, yes, and it's in

12 Trial Chamber I, and it's Justice Moloto presiding, yes.

13 Q. And it's dated the 14th of January, is it not --

14 A. It is, yes.

15 Q. -- 2008?

16 A. Yes.

17 Q. And it's a public decision?

18 A. Yes.

19 Q. If you could be so good as to go to page 3.

20 A. Yes.

21 Q. Can you read the third paragraph down, starting with: "Noting"?

22 A. "Noting that according to the jurisprudence, the Chamber has

23 inherent discretionary power to reconsider a" --

24 THE INTERPRETER: Would you please read more slowly.

25 THE WITNESS: I'll start again.

Page 183

1 MR. KHAN:

2 Q. Yes, please.

3 A. "Noting that according to jurisprudence, the Chamber has inherent

4 discretionary power to reconsider a previous decision when the interests

5 of justice so requires."

6 And there's reference to a footnote.

7 MR. KHAN:

8 Q. And please be so good as to read the footnote, Mr. Vincent.

9 A. The footnote 8 reads:

10 "See Prosecutor re Slobodan Milosevic, confidential decision on

11 request of Serbia and Montenegro for review of the Trial Chamber's

12 decision of 6 December 2005."

13 Then reference case number IT-02-54-AR-108 bis, 3-6 April 2006,

14 para 25, FT 40.

15 Q. And it's correct, is it not, that in your reading of this public

16 decision, a confidential decision is relied upon in support of a finding,

17 a public finding of Trial Chamber I; that is a fair assessment, is it

18 not?

19 A. So it appears, yes.

20 Q. Let's move to the case of Rasim Delic, so a decision -- public

21 decision dated the 23rd of August, 2006. Do you see that?

22 A. I do, yes.

23 Q. Who is presiding, please?

24 A. Judge Patrick Robinson.

25 Q. And can you turn to page 4?

Page 184

1 A. Yes.

2 Q. And, in fact, if you can start from the last paragraph on page 3

3 and read it, please, starting: "Considering ..."

4 A. "Considering that the criteria for reconsideration have been

5 clearly established by the Appeals Chamber, ruling, that a Chamber --"

6 Q. Sorry, that's a quote, is it?

7 A. Sorry, "... that a Chamber has inherent discretionary power to

8 reconsider a previous interlocutory decision in exceptional cases if," I

9 quote again, "a clear error or reasoning has been demonstrated or if it

10 is necessary to do so to prevent injustice."

11 And then there's a reference to footnote 10.

12 Q. And please be so kind as to read to Their Honours that footnote.

13 A. I'll do my best.

14 JUDGE MOLOTO: Mr. Khan, if you could -- you said the witness

15 must turn to page 4, and I am at page 4 of this decision, and I'm not

16 seeing what he's reading.

17 MR. KHAN: Your Honour, are you looking at the decision of the

18 23rd of August, 2006?

19 JUDGE MOLOTO: That's correct, sir.

20 MR. KHAN: Your Honour, if you go to the top of the page, he

21 started on the last line of page 3: "Considering ..."

22 And Mr. Vincent very kindly continued to the top of page 4 with

23 the quotation.

24 JUDGE MOLOTO: I'm gone to page 4 because you referred to page 4,

25 not page 3, so that's why I didn't see where you were reading.

Page 185

1 Thank you so much. You may proceed.

2 MR. KHAN: I'm most grateful, Your Honour.

3 JUDGE MOLOTO: Thank you. Okay.

4 Q. Mr. Vincent, if you could read the footnote, please, into the

5 record.

6 A. Page 4, footnote 10:

7 "Prosecutor v. Milosevic, case number IT-02-54-AR-108 bis 3

8 (confidential), decision on the request of Serbia and Montenegro for

9 review of the Trial Chamber's decision of 6 December 2005, 6 April 2006,

10 para 25, N40."

11 Q. I'm grateful. Are you aware, Mr. Vincent, that that is the

12 decision that is the subject matter -- one of the decisions that is the

13 subject matter of contempt proceedings against Ms. Hartmann?

14 A. Certainly I'll take your word for that, and certainly the dates

15 do actually bear some resemblance to extracts of publications I've seen,

16 yes. So I would accept that from you.

17 Q. And you would agree with me that very clearly the jurisprudence

18 of the Appeals Chamber in that confidential decision has been referred to

19 in the public decision referred to by Judge -- presided over by

20 Judge Patrick Robinson; that's correct, is it not?

21 A. Well, certainly that decision has been referred to, yes.

22 Q. Yes. That decision and a clear -- you've seen the quotation

23 marks, a clear extract of the jurisprudence; that's right, is it not?

24 A. I wasn't aware of the decision in detail, but again I have to

25 take your word that's it.

Page 186

1 Q. Well, please don't take my word. From the face of the document,

2 being an experienced court official, it's very clear, is it not,

3 Mr. Vincent, that what the Trial Chamber is doing is referring to the

4 confidential decision of the Appeals Chamber? That's the only possible

5 reading, is it not?

6 A. That's right. The only point I was making was that I'm not

7 familiar with the exact wording of that decision.

8 Q. If you could turn, please, to the case of Perisic, 22nd of

9 September, 2006.

10 THE COURT: Where would we find that, Mr. Khan?

11 MR. KHAN: Your Honours should have it. I believe my assistant

12 has handed it up.

13 JUDGE MOLOTO: You've got to tell us the page.

14 MR. KHAN: Your Honours, it is a document dated the 22nd --

15 JUDGE MOLOTO: Yes, sir.

16 MR. KHAN: Your Honour, I'm most grateful for your tolerance and

17 bearing with me.

18 JUDGE MOLOTO: If you could please guide us where to look --

19 MR. KHAN: I will.

20 JUDGE MOLOTO: You've given us this document, you have given us

21 this file, you must tell us where to look. And you have given us this

22 document.

23 MR. KHAN: I will. Your Honour, I will do my utmost.

24 JUDGE MOLOTO: Okay. To say the Perisic case, I don't know if

25 it's here or here or there.

Page 187

1 MR. KHAN: Your Honour, I am referring as I made clear at the

2 outset, and forgive me if I didn't, that these are discreet filings that

3 were handed out just after the break, and they constitute three

4 documents --

5 JUDGE MOLOTO: Sure.

6 MR. KHAN: -- this being the final one of those three.

7 Your Honour, I will take it slowly, and I do apologise if there's

8 inconvenience to the Bench.

9 Q. Mr. Vincent, do you have that to hand?

10 A. I do, yes.

11 Q. It's before a Trial Chamber presided over by Judge Robinson; is

12 that correct?

13 A. That's right, yes.

14 Q. Dated the 22nd of September, 2006?

15 A. Yes.

16 Q. In the Perisic case?

17 A. Yes.

18 Q. And it's entitled: "An Order on the Applicant's Renewed Motion

19 Seeking Access to Confidential Material in the Milosevic Case," with

20 annex A; is that correct?

21 A. That's correct.

22 Q. If you could be so good as to turn to page 2.

23 A. Yes.

24 Q. Can you see the noting in the penultimate paragraph?

25 A. Yes, I can.

Page 188

1 Q. Could you be so kind, once again, to read that?

2 A. Starting with the word: "Noting."

3 Q. Please.

4 A. "Noting the legal standard for reconsideration of a decision that

5 has been established in the jurisprudence of the Tribunal as follows:"

6 Then in brackets:

7 "A. The Chamber has inherent discretionary power to reconsider a

8 previous interlocutory decision in exceptional cases," and then in

9 quotes, "if a clear error of reasoning has been demonstrated or if it is

10 needed to do so to prevent injustice."

11 And then a footnote 3 is referred to.

12 Q. And please read into the record footnote 3, please.

13 A. Footnote 3 reads:

14 "C. Prosecutor v. Milosevic, case number IT-02-54-AR 108 bis 3,

15 confidential decision on request of Serbia and Montenegro for review of

16 the Trial Chamber's decision of 6 December 2005, para 25, note 40."

17 Then in brackets, quoting [Overlapping speakers] --

18 Q. That's fine.

19 A. That's fine, thanks.

20 Q. I think that's more than enough. Thank you for that.

21 Once again, is it not patently obvious, Mr. Vincent, that in this

22 public filing of the Trial Chamber in the Perisic case, they are

23 referring not only to the existence of a confidential decision, but the

24 jurisprudence of the confidential decision in the Milosevic case?

25 A. It certainly appears to be part of that jurisprudence, yes.

Page 189

1 Q. Yes.

2 A. It's an extract.

3 Q. Yes, of the jurisprudence, on the face, that was rendered by the

4 Appeals Chamber of this Court on the 6th of December, 2005?

5 A. It appears so, yes.

6 Q. Yes. In all these cases, an application to do with protective

7 measures sought by Serbia and Montenegro are mentioned; is that right?

8 A. That's right, yes.

9 Q. Has it come to your attention, being a very senior court official

10 in the various courts, whether or not Serbia has ever complained about

11 these confidential parts of the jurisprudence being made public?

12 JUDGE MOLOTO: Mr. Khan, where in that footnote 3 is there a

13 reference to Serbia and application for anything?

14 MR. KHAN: Your Honour, in that decision -- Your Honour, in that

15 decision --

16 JUDGE MOLOTO: No, in that footnote. I'm asking you about the

17 footnote.

18 MR. KHAN: Confidential decision on the request of Serbia and

19 Montenegro for the review of the Trial Chamber's decision of the 6th of

20 December, 2005.

21 JUDGE MOLOTO: Right.

22 MR. KHAN: So it's very clear it has to do with a request by

23 Serbia and Montenegro.

24 JUDGE MOLOTO: For the review of a decision, that's all.

25 MR. KHAN: Indeed, indeed.

Page 190

1 Q. And they are confidential decisions, of course?

2 A. Yes.

3 Q. So if you could answer my question that was posed just a moment

4 ago. Are you aware at all - if you're not, say so - whether or not the

5 applicant -- whether or not Serbia and Montenegro has ever complained

6 about the jurisprudence filed confidentially being cited publicly by the

7 Judges of this Court? Has that ever come to your attention or not?

8 A. I'm not aware of anything of that nature, but then again I don't

9 claim to have any -- any knowledge of that particular issue.

10 Q. If you would go to tab 30, please. Are you looking at the

11 transcript of the International Court of Justice, dated the 8th of May,

12 2006?

13 A. Yes, I am.

14 Q. And if you can read to yourself, because I've mentioned it

15 already to the Bench, just read quickly paragraphs 55 to the bottom of

16 the page. This refers to the genocide case between Bosnia-Herzegovina

17 and Serbia-Montenegro; is that right?

18 A. That's right, yes.

19 Q. And is it correct, and do take your time if you haven't gotten to

20 it --

21 A. I've just reached the final sentence.

22 Q. Yes.

23 A. Yes, I've reached the end of the page, yes.

24 Q. And if you could go to paragraph 59 over the page, please.

25 That's on page 28, Mr. President.

Page 191

1 A. Yes, I've read the paragraph.

2 Q. Is it correct that that extract from the International Court of

3 Justice, and you'll see that it's in public session from the cover page,

4 it discusses ST -- SDC documents?

5 A. Yes, that's right, yes.

6 Q. It discusses the fact that Serbia-Montenegro had -- was stating

7 that it couldn't discuss those documents because they were under

8 protective measures imposed by the ICTY. You can see that?

9 A. That's correct, yes.

10 Q. And they are very clear, are they not, that they draw a

11 distinction between the contents of the redacted sections? They say that

12 they're not entitled to discuss the contents of the redacted sections of

13 the Supreme Defence Council documents at this moment. Do you see that?

14 A. I do see it, yes.

15 Q. Would you agree with me that there is a -- in the practice of the

16 courts that you have been involved in, that there is a difference between

17 the underlying issue -- the underlying interest that is sought to be kept

18 confidential and the jurisprudence of the Court? Could you agree with

19 that or not? For example, if there is a decision, and a protected

20 witness, Witness X's name is mentioned in it, it is not uncommon in these

21 courts for that jurisprudence to be cited, albeit without any mention of

22 Witness X, in order to widely disseminate the jurisprudence of the Court

23 and to inform other Trial Chambers? That is the practice, is it not?

24 A. It's not unheard of. I'm not saying -- I'm not -- practice can

25 vary from courts and tribunal. It's not unknown to me, but it's not

Page 192

1 something that I would have said is established practice across the

2 board, as it were. But you may well have better experience of that than

3 I do.

4 Q. And what is the practice, generally? We touched upon the

5 Charles Taylor case right at the outset, where the prosecutor, who had

6 been the applicant, made public the indictment prior to the order of the

7 Bench making the indictment public, and we see here that

8 Serbia-Montenegro, talking about an application to the ICTY, the contents

9 of documents, that they have to do with STC documents, is it the case, in

10 fact -- is the practice that very often the applicant who seeks the

11 measures is given, at the very least, a wide latitude as to when they

12 will determine the interest worthy of protection ceases, and that's why

13 David Crane was entitled to do what he did, and that's why

14 Serbia-Montenegro, in public session, referred to the contents and the

15 decisions of this Court that were subject to orders of confidentiality?

16 Would that be a fair assessment, sir?

17 A. I think that both those, of course, are very different. The

18 circumstances always have to be taken into account. Certainly, so far as

19 the David Crane decision was concerned, there is -- there is nothing

20 significant about the publication of the order of the Court, as far as

21 unveiling the indictments against Charles Taylor, other than the fact of

22 timing and extreme circumstances around that particular issue. So

23 there's no particular part of any process that was being followed; it was

24 just the fact of life at that time. And so I think each and every

25 instance has to be looked at on its merits, and it's far beyond me to get

Page 193

1 involved in decisions that are taken by particular Courts or Benches

2 elsewhere.

3 Q. Yes. The nub of the question though is this: In your experience

4 in the ICTY, the Special Court for Sierra Leone, Cambodia, and the STL,

5 but particularly the more advanced courts, the mature courts, is it the

6 case, in practice, that a Bench -- well, let's go backwards. Is it

7 correct that a Bench ordinarily orders protection in response to an

8 application?

9 A. It is, yes.

10 Q. And that application can be filed by the Prosecution, by the

11 Defence, or by states, amongst others?

12 A. It can be, yes.

13 Q. And the rationale for such orders of confidentiality are to

14 encourage cooperation from states and to allow the proper administration

15 of justice; is that right?

16 A. Yes, that's one of the reasons, yes.

17 Q. And it's also the case, is it not, that given that a Bench will

18 either consent -- a Bench will either grant an application or reject it,

19 a margin of deference, as a matter of practice, is given for the -- is

20 given to the applicant as to when that confidentiality is no longer

21 needed. That is the reality, is it not?

22 A. It is, yes.

23 Q. Are you aware of numerous cases where arrest warrants have been

24 issued which did not have -- are you familiar with arrest warrants? Have

25 you seen them?

Page 194

1 A. I have, indeed, yes.

2 Q. And they are of two type, are they not; the older ones

3 ordinarily, when the practice of under-sealing indictments were issued,

4 simply stated that a warrant is issued by the Bench, and they ordered

5 that the warrant remains confidential until further order?

6 A. That is possible, yes.

7 Q. And there was another species of warrants that were developed

8 that said later on that they are to be rendered confidential either until

9 such further order of the Bench or until the warrant is executed?

10 A. Yes.

11 Q. In relation to the first class of order, are you aware of a very

12 large number of cases where, after the warrant was executed, individuals,

13 whether they be NATO, or the Prosecution, or S-4, made the warrants

14 public absent an order of this Court?

15 A. I'm not aware of numerous orders, no.

16 Q. Are you aware of the White House, during President Bush's time,

17 in the Dokmanovic case, making public that Dokmanovic had been arrested

18 before a Judge of this Court had made public the warrant and indictment?

19 A. That is a case that had escaped my attention.

20 Q. But if they were -- if you agree with me for the moment that

21 there are numerous cases --

22 A. No, I don't agree there are numerous cases, no.

23 Q. Are you familiar -- just one moment. Are you familiar with --

24 Your Honours, do bear with me a moment, please.

25 Are you familiar with the Vasiljevic case?

Page 195

1 A. By name -- by name only.

2 MR. KHAN: Your Honours will see -- I'm not going to go through

3 all of these. These are matters for evidence at the end. Your Honours

4 will see at tab 13, there's a press release by NATO, Lord Robinson, on

5 the 25th of January that makes it public, that makes it public, and,

6 Your Honours, we will adduce evidence during the course of the trial --

7 we'll adduce evidence during the course of the trial that it was on the

8 day after that, that a formal order was entered by the Bench to make this

9 decision public.

10 Q. Mr. Vincent, if I just read the names -- I'm not going to spend

11 time over it, but if I mentioned the Nikolic case, the Mrdja case, Bala,

12 Musliu, Limaj, in all of these cases, I put it to you, that statements

13 were made by K-4 or S-4 or NATO prior to an order issued by a Judge of

14 this Court rendering public that which had been confidential --

15 A. Of course I would accept that from you. My only comment, of

16 course, is in every case there are prevailing circumstances which either

17 require action to be taken, and the Taylor case was such, but I certainly

18 accept from you that those events took place.

19 Q. Yes. Every decision, of course, rests on its own facts in many

20 respects.

21 A. That's correct, yes, especially so far as arrest warrants are

22 concerned.

23 MR. KHAN: Yes. Your Honours, just one moment.

24 Mr. Vincent, I must oblige for you being so patience and taking

25 the time to come to court today. You'll be pleased to know, especially

Page 201

1 be made without the Chamber, with all due respect, having this document

2 in question. We believe, Your Honour, that the relevance of the content

3 is close to nil. At this stage, we believe they are procedural and, I

4 would say, statutory aspects pertaining to this issue. And I think if

5 Mr. MacFarlane is willing to put forward his case in that respect, we

6 would believe to be able to respond to it without Your Honour having to

7 see the content of the document.

8 JUDGE MOLOTO: That would accord to my understanding,

9 Mr. MacFarlane. If the Chamber should rule that the documents are

10 inadmissible, then it's preferable that the Chamber does not have sight

11 of them. So you can argue your basis for tendering them, and then the

12 Chamber will rule based on that, and then we can decide whether to have

13 sight of them.

14 MR. MacFARLANE: Thank you, Your Honours.

15 Of course, it's necessary for me to allude to the nature of the

16 document so that the Chamber can appreciate the relevance and reliability

17 and perhaps a sense of the probative value of the document, and I will do

18 that. Let me describe, in broad terms at this point, the nature of the

19 document and then the history in terms of this litigation.

20 It is a one-page letter forwarded from the then Registrar to the

21 accused, dated the 19th of October, 2007, and it concerns the very issues

22 before the Chamber. It is on official UN stationery, in particular ICTY

23 stationery. It is signed personally by the Registrar, and it evidences

24 the address to which the letter was forwarded.

25 Essentially, without going into all the detail concerning the

Page 202

1 document, it was a letter from the Registrar which cautioned the accused

2 about the apparent disclosure of confidential information, cautioned or

3 warned. There's various adjectives and verbs that can be used, but it's,

4 at minimum, a caution that there appears to be a problem here.

5 MR. METTRAUX: Well, Your Honour, we would object again. I'm

6 grateful to Your Honour, and I apologise to my friend, but we believe

7 that the very purpose that we outlined in our original objection,

8 Mr. MacFarlane is trying to transpire the objection, which was upheld by

9 the Bench. Your Honour, we believe that, in effect, Mr. MacFarlane is

10 trying to present the content of the document. We don't need to know

11 about that, in our submission.

12 JUDGE MOLOTO: Mr. MacFarlane, do you have any further

13 submissions outside the content of the document?

14 MR. MacFARLANE: Yes, I do.

15 JUDGE MOLOTO: Go outside the content.

16 MR. MacFARLANE: I can move directly to that.

17 I alerted my friend and the Chamber that I intended to describe

18 the document, because without some description of the document, it would

19 be very difficult to understand its relevance. So that was why I

20 referred to it in broad terms.

21 In terms of the history behind this document and the proposition,

22 as I put forward, that the accused is not taken by surprise, counsel are

23 not taken by surprise, neither are prejudiced in any way, because it's

24 been in the hands of the accused for quite some time. It was, first of

25 all, delivered to the accused as a letter. Secondly, in June of last

Page 203

1 year, it was put to the accused during the course of the suspect

2 interview, so she understood that it was a document of concern, so that

3 was the second point at which it was referred to. Her counsel was there

4 with her at the time, so she had the benefit of legal advice in respect

5 of this document and any other issues that arose.

6 The next step to ensure no prejudice or no one being taken by

7 surprise: It, in the fall of last year, was included in the disclosure

8 package that was provided to the accused and counsel. It is included on

9 the 65 ter list as part of the documents relied upon by the Prosecution.

10 It's further referred to in the amended 65 ter list. So there are many,

11 many points at which the accused and her counsel were aware of the fact

12 that the Prosecution was focusing on the document, felt that it was

13 relevant, and intended to rely upon it during the proceedings.

14 In correspondence over the past couple of months, it was noted

15 that counsel for the Prosecution intended to use the document potentially

16 during cross-examination of the accused, should she take the stand, and

17 advice that we received at the beginning of proceedings this morning

18 indicate that the accused does not intend to testify, as is her right.

19 So this, with full disclosure, repeated attention to the

20 document, placing it in the hands of the accused, placing it in the hands

21 of counsel for the accused, and clear indications that it was going to be

22 used in these proceedings on the 65 ter list and in correspondence, there

23 cannot be any prejudice, there cannot be anyone taken by surprise. And

24 it's on that basis that I move to have the document marked as an exhibit

25 in these proceedings.

Page 204

1 JUDGE MOLOTO: Just to recap, you said this is correspondence

2 directly linked to these proceedings?

3 MR. MacFARLANE: Yes, yes, in the context of the wide range of

4 correspondence that counsel always have in cases of this sort. My

5 learned friend and I have had dozens if not hundreds of letters and

6 e-mails, and it's in that context, but it's related directly to this

7 case.

8 JUDGE MOLOTO: Yes, Mr. Mettraux?

9 MR. METTRAUX: Well, thank you, Your Honour.

10 The first thing we would like to place on the record is that

11 contrary to Mr. MacFarlane's submission of a moment ago that counsel or

12 the accused intended or ever sought to rely upon this document, we wish

13 to make it clear that this has never been the case.

14 The matter, perhaps, Your Honour, we'll take it a few steps back.

15 In the process of investigation, if I may call it that, of this

16 case, and the process of preparation that has gone into this case, both

17 by the amicus and by the Defence, we sought information from the

18 Prosecutor, Mr. MacFarlane, as to the origin of this document, and more

19 specifically the chain of custody of this document.

20 In other words, we wanted to know from Mr. MacFarlane how he came

21 about this document. The reason for our request, Your Honour, is that

22 this document appears to come from the personnel file of Ms. Hartmann

23 which, as Your Honour well knows, is protected by confidentiality. In

24 other words, we were querying with Mr. MacFarlane how he could have

25 obtained this document without any court order to that effect.

Page 205

1 As a result of that, Your Honour, a number of letters, as

2 Mr. MacFarlane indicated, were exchanged between the Defence and the

3 Prosecution, and in two of these letters on the 14th and the 15th of

4 January this year, Mr. MacFarlane said this, and will read from only one

5 of them:

6 "We were querying a set of documents, all of which, including

7 this one, appear to come from the personnel UN file of Ms. Hartmann, and

8 the answer of Mr. MacFarlane at this time was:

9 "None of these documents will be tendered as part of the case of

10 the Prosecution."

11 Your Honour, this was the position of the amicus.

12 The other matter that I would wish to bring to your attention,

13 Your Honour, is that the Defence made a number of similar efforts to

14 obtain documents from the Registry pertaining to the file of

15 Ms. Hartmann, as well as the file of other individuals working in this

16 Tribunal; and in response to those queries, we received several of those,

17 this was the position of the Registrar at the time, acting Registrar,

18 Mr. John Hocking:

19 "The records of this Tribunal, not forming part of the public

20 record of the Court, are, in principle, not subject to disclosure to

21 external parties unless there would be a basis for the Registry to

22 consider disclosure, such as, for example, an order by the Chamber in

23 relation to the relevance of the record you seek to consult."

24 And it goes on. We've had a number of responses of that sort

25 from the Registry.

Page 206

1 What I would like to draw to the attention of the Chamber is

2 we've never had the benefit of any sort of cooperation on the part of the

3 Registry insofar as pertain to access to any confidential material from

4 this Tribunal, and Mr. MacFarlane has refused to provide us information

5 as to the chain of custody of this document.

6 Furthermore, and contrary to what Mr. MacFarlane has indicated,

7 we've never had any notice of his intention to use this document in these

8 proceedings, as just indicating in his e-mail of the 14th and I believe

9 again the 15th of January this year, he's positively indicated he would

10 not seek to tender this document.

11 When in the situation, Your Honour, where we've effectively been

12 denied the ability and haven't undertaken an investigation of this

13 matter, on the undertaking given by Mr. MacFarlane that he would not seek

14 to tender this document, he's indicated that he might have wished to use

15 it with Ms. Hartmann in cross-examination. Whether that's the case or

16 not, he now has an indication that Ms. Hartmann will not testify, and we

17 believe that in that -- as a result of this, Your Honour, that this

18 document should not be admitted.

19 JUDGE MOLOTO: Mr. Mettraux, your very fast sentence -- sorry --

20 MR. METTRAUX: Yes, I can see the place where the words are

21 missing. If you wish, Your Honour, I could read them again.

22 JUDGE MOLOTO: Just wait, just give me a chance you said:

23 "The first thing we would like to place on the record is that

24 contrary to Mr. MacFarlane's submission of a moment ago, that counsel or

25 the accused intended or ever sought to rely on this document."

Page 207

1 MR. METTRAUX: Well, if that's the record, it should have had an

2 additional word, which is "never." We never gave any intention of any

3 intention on our part to rely or use that document at trial.

4 JUDGE MOLOTO: I didn't hear Mr. MacFarlane suggesting that the

5 Defence or the accused intended to use the document. I thought I heard

6 him saying the Prosecution had not intended.

7 MR. METTRAUX: Your Honour, if that's the case, we stand

8 corrected. We had understood it differently, and I apologise if that's

9 the case.

10 JUDGE MOLOTO: In your address, you also said that you sought

11 from Mr. MacFarlane -- you had a suspicion that this document comes from

12 the personnel files of Madam Hartmann. Did you ask Mr. MacFarlane that

13 question and did he respond to you?

14 MR. METTRAUX: Yes, and Mr. MacFarlane will correct me if I

15 misrepresent or mis-remember the exact word being used. We sought more

16 generally the chain of custody, as it's called, of this document. And we

17 mentioned, in particular, the origin, whether or not it came from the

18 personnel file of Ms. Hartmann. We believe, Your Honour, that we also

19 made that reference in two of our filings, and again I stand to be

20 corrected if wrong. We believe it was done in a motion on abuse of the

21 process, in a motion for reconsideration, where we raised issues and

22 concerns in relation to these matters.

23 JUDGE MOLOTO: I'm sorry to interrupt you. My question is very

24 focused and it needs a focused answer.

25 Did you get an answer -- did you ask Mr. MacFarlane whether this

Page 208

1 document comes from Ms. Hartmann's personnel file, and did he answer to

2 that question?

3 MR. METTRAUX: Well, we believe we did, Your Honour, and --

4 JUDGE MOLOTO: No, I want a fact. Did you or did you not?

5 MR. METTRAUX: I believe we did, and I would not want to pretend

6 we used that specific word. We believe we referred to the personnel file

7 of Ms. Hartmann.

8 JUDGE MOLOTO: Did you receive any response specifically to that

9 point?

10 MR. METTRAUX: No, Your Honour. The position of the Prosecutor

11 in this case has been consist in that regard, that this matter was

12 irrelevant. And once he had taken the position that he would not use

13 that document, we ceased to ask questions in relation to this matter,

14 since it had become, indeed, irrelevant to the admission of this

15 document.

16 JUDGE MOLOTO: Well, moving on to the response from the Registry,

17 when the Registrar replied -- or the acting Registrar, as he then was

18 called, replied to you to say that unless the Registrar finds it

19 necessary to reveal personnel documents, they normally don't, and such

20 exceptional circumstances could be by way of a court order?

21 MR. METTRAUX: Well, Your Honour, I can do no more than citing

22 the words of the Registry. I'm not in a position to assess what their

23 position or their motivation or the basis on which they could add -- the

24 only one --

25 JUDGE MOLOTO: I recapturing those words of the Registrar as a

Page 209

1 prelude to my question to you. My question to you is: Are you aware of

2 an order of Court that ordered that personnel documents of Madam Hartmann

3 be made public?

4 MR. METTRAUX: To the extent we are aware, Your Honour, no such

5 order exists.

6 JUDGE MOLOTO: And what then would be the reasonable inference to

7 draw from that response by the Registrar?

8 MR. METTRAUX: Well, Your Honour, our request pertains to a

9 different personnel file of a different person. I would prefer not to

10 mention the name of that person. But the inference to be drawn from the

11 letter of the Registrar is that without a court order to that effect,

12 there was no entitlement by whomever gave a copy of that document to

13 Mr. MacFarlane to receive it in the first place.

14 JUDGE MOLOTO: No, no. Is that a reasonable inference? Is the

15 reasonable inference that without a court order, there hasn't been any

16 public disclosure of any documents from any personnel files of any staff

17 member?

18 MR. METTRAUX: Well, Your Honour, the problem we have is we have

19 a document here in front of us that appears to come from that personnel

20 file. We have no alternative explanation.

21 JUDGE MOLOTO: What's your basis for having this --

22 MR. METTRAUX: Well, the basis for it, Your Honour, is the

23 suggestion that we made to that effect -- that we believe we made to that

24 effect to the Prosecutor and that he has not said otherwise. If the

25 Prosecutor is now willing to stand and to indicate where this document

Page 210

1 comes from, and that, in fact, it comes from another source in relation

2 to which no order of the Court was necessary, we take his word for it.

3 JUDGE MOLOTO: Mr. Prosecution has told this Court today that

4 this is a letter written by the Registrar to Madam Hartmann, so the

5 source of this letter is the Registrar.

6 MR. METTRAUX: But the problem, Your Honour, is that this letter,

7 once sent, is kept only in a number of archives, if I may call them that.

8 A copy would be with the personnel file of Ms. Hartmann, as we

9 understand, and the -- and with Ms. Hartmann, herself. What we're trying

10 to establish, Your Honour, is whether and to what extent Mr. MacFarlane

11 is in a position to establish the legality with which he has obtained the

12 material. The other issue we raised, Your Honour, as well pertain to the

13 fairness of the course which has been followed in this matter, denying us

14 this information and putting us now in an ambush situation where we have

15 taken the position that there was no need to investigate this matter and

16 now being faced with this document.

17 JUDGE MOLOTO: Mr. Mettraux, I think the Prosecutor has just told

18 the Court that this is a document emanating from the Registrar, directly

19 related to these proceedings. Now, I can't understand why you should say

20 it comes from the personnel file or -- personnel file of Madam Hartmann,

21 if it's a document related to these proceedings. These proceedings

22 started here after Madam Hartmann had left this place.

23 MR. METTRAUX: Well, with all due respect, Your Honour, perhaps

24 the short answer to that is: This document does not pertain to these

25 proceedings, since it predates, I should say, any proceedings against

Page 211

1 Ms. Hartmann. So to the extent that the Prosecutor is claiming that this

2 document forms part of this proceeding, this would be quite misleading,

3 in our submission, Your Honour. This predates any indictment, any start

4 of investigation against Ms. Hartmann, as we understand it from the

5 record that has been made available to us.

6 MR. KHAN: Mr. President, with your leave, if I can be very

7 brief.

8 The context, of course, is relevant, but the core issue is

9 simple. The primary submission of the Defence is that the Defence have

10 every right to rely, in good faith, upon the representations of the

11 Prosecution, especially an amicus prosecutor. He has given a written

12 undertaking that must bide against him. In writing, he said in very

13 clear terms, Mr. President and Your Honours, that he would not rely upon

14 this evidence in his own case. Without any good reason, he has done a

15 volte-face. He is trying to do precisely that which he said he would

16 not, and he must be bound by his own undertakings, in our respectful

17 submission, to allow a prosecutor, who must be taken to know his case,

18 know his responsibilities, and know the elements that he needs to --

19 JUDGE MOLOTO: You have got to be brief.

20 MR. KHAN: I will.

21 JUDGE MOLOTO: If you will give me the point. We know that the

22 Prosecutor is supposed to know his case, is supposed to know his brief.

23 Don't repeat that.

24 MR. KHAN: I won't, Your Honour, the key point is context is

25 context. It's the background. The core issue and the primary submission

Page 212

1 is that the prosecutor must be bound by his --

2 JUDGE MOLOTO: Stand by his words, that's the core issue.

3 [Trial Chamber confers]

4 MR. METTRAUX: Perhaps a matter --

5 JUDGE MOLOTO: If I may, I'm just trying to recap myself.

6 Now, you raised an objection. Mr. MacFarlane answered. You

7 replied.

8 MR. METTRAUX: We have a clarification, with Your Honour's leave,

9 to your question of the personnel file. In the motion of the 23rd of

10 January, 2001 -- 2009, I apologise. It was expressly mentioned,

11 Ms. Hartmann's ICTY personal file.

12 JUDGE MOLOTO: Personnel file or personal file?

13 MR. METTRAUX: Personal file, which we understand to be the same.

14 It's the United Nations personal file.

15 JUDGE MOLOTO: Okay. Mr. MacFarlane, you rose while the Chamber

16 was conferring. Did you have something to say on this matter, noting

17 that you have no right of reply?

18 MR. MacFARLANE: Yes. If I might receive --

19 JUDGE MOLOTO: Without leave of the Court.

20 MR. MacFARLANE: If I might be allowed one minute. There was a

21 few points that I thought required clarification, and I think the record

22 is incomplete at the moment, so I can do it in one minute.

23 JUDGE MOLOTO: Will you, please.

24 MR. MacFARLANE: Thank you.

25 Very briefly, number one, the document was not taken from the