090616ED

Page 237

1 Yes, Mr. Mettraux.

2 MR. METTRAUX: Thank you, Your Honour.

3 And perhaps before we start, with the assistance of the usher, we

4 have binders for the Chamber, the Registry, and the Prosecutor, and also

5 for the witness.

6 JUDGE MOLOTO: Wait a minute. Is this a fact witness or is

7 this - what do you call it? - an expert witness?

8 MR. METTRAUX: Your Honour, we will ask Mr. Joinet to comment on

9 a number of documents that he has prepared during the course of his

10 career, and we will ask him for his comments on these documents. There

11 is also a number of factual matters that he's able to testify, including

12 his interaction with Ms. Hartmann, a number of documents, papers, books,

13 and articles that he wrote on subjects relevant to this case. The main

14 crux of the evidence will be reports that he wrote on or at the time he

15 worked for the United Nations or for the French government.

16 JUDGE MOLOTO: Proceed.

17 Examination by Mr. Mettraux:

18 Q. Bon jour, Mr. Joinet. I'm Guenal Mettraux, appearing on behalf

19 of Ms. Hartmann.

20 Mr. Joinet, could you formally state your name, first name and

21 last name, for the record?

22 A. My name is Louis Joinet, J-o-i-n-e-t. I was born on May the

23 26th, 1934. I live in Paris.

24 Q. Could you indicate briefly what your academic or schooling

25 background is? What studies did you make?

Page 238

1 A. The usual ones. I took my baccalaureate, which is the first step

2 before you enter university. I prepared my BA in Law in the

3 Sorbonne University. I got my BA, and after that, I prepared the

4 competitive exam to enter the Ecole Nationale de la Magistrature. I

5 passed. And following that, I became a judge. I also followed my

6 studies in the Crime Institute in Paris, but that was when I was young.

7 Q. And going briefly into your curriculum vitae, have you held any

8 high position within the French government?

9 A. Yes, I held certain positions independently from my position as a

10 judge, but that was as of 1978. I worked for the Council of Europe, and

11 I was an expert in the protection of data. And the Council of Europe

12 used me as a consultant, and the French government asked me to study this

13 issue. An independent or standby commission was created, called

14 Data Inspection, in English, and I was the first director of this body up

15 to 1981. It was a government body, but I was working as an independent

16 person. And the prime minister at the time, Pierre Marois, asked me to

17 work for his cabinet as a legal adviser, dealing with justice and human

18 rights. I worked with him up to 1974, and the subsequent prime ministers

19 asked me to stay, and worked as legal advisers for the next five

20 prime ministers.

21 Q. I'm grateful. Would you be able to indicate to The Honours, the

22 Judges, what judicial positions you held in France or other places?

23 A. Mainly -- I mainly had a position as a judge or a magistrate. I

24 say "magistrate," because I started working for the prosecution. I

25 started to work as a judge in the Melun Court. Then I was the trial

Page 239

1 attorney in Paris. Then I was a deputy prosecutor in the Appeals Court

2 in Paris. Then I became a member of the Court of Cassation and the

3 Supreme Court, and I finished as deputy general prosecutor in the Court

4 of Cassation for 14 years.

5 When I was working for the Court of Cassation, not only was I

6 dealing with the press and disputes with the press, but I was also a

7 prosecutor in the Haute Cour de Justice de la Republique, the Court

8 competent to judge ministers who committed infringements, and then I

9 dealt with people who were unfairly sent to prison and who were

10 acquitted. And then I retired.

11 Q. And did you also hold a number of positions with the

12 United Nations? And if so, could you indicate briefly, again perhaps

13 focusing on the most important among them, what these positions were?

14 A. So, very briefly, since I held these positions for 30 years, I

15 started during the Cold War, then the fall of the Berlin Wall, up to

16 2007. I first was elected as an independent election in the

17 Subcommission of Human Rights, which is a subsidiary body of the

18 commission responsible for preparing studies and reports for the

19 commission --

20 JUDGE MOLOTO: You are going too fast, sir. The interpreters are

21 desperately trying to keep pace with you. Will you please slow down.

22 THE WITNESS: [Interpretation] Yes. I would like the interpreters

23 to forgive me. Please let me know if I speak too fast.

24 So I started in 1979, when I was elected as an independent expert

25 working for the Subcommission of Human Rights, which is a subsidiary body

Page 240

1 of the commission, preparing studies and reports. I acted as the

2 president, but before that, I was the general rapporteur of this

3 commission. And I stopped working for them in 1991, when the Human

4 Rights Commission, following a report I was mandated to prepare on

5 arbitrary imprisonment, decided to elect me as the president of this

6 group. So I -- as the chairman of this group. So I chaired this group

7 on arbitrary imprisonment for nine years. And during my terms of

8 reference, I visited some 15 countries throughout the world, and if my

9 assistant is -- was right, I visited some 170 prisons and camps.

10 And in 2002, the United Nations Secretary appointed me as an

11 independent expert dealing with human rights -- the human rights

12 situation in Haiti. I held this position up to June 2007, June the 17th,

13 2007, when I took the floor for the last time at the United Nations,

14 after 30 years spent working with the United Nations.

15 MR. METTRAUX:

16 Q. Mr. Joinet, your CV is quite long, so I will draw your attention

17 to a few of its parts which are of relevancy.

18 And perhaps with the assistance of the Registry, Mr. Joinet could

19 be given the binder.

20 Mr. Joinet, when you get the binder, I'll ask you to turn to what

21 is tab 56 of the binder. This is your curriculum vitae in French. And

22 for the non-French speakers, we have a translation at tab 56 bis.

23 Your Honour, we've indicated the translation of the

24 curriculum vitae is at 56 bis in English, and 56 in French.

25 JUDGE MOLOTO: [Microphone not activated]

Page 241

1 MR. METTRAUX: 2, Your Honour, number 2.

2 Q. Mr. Joinet, if I can ask you to look at the first page of that

3 document in French.

4 It would be the second page in the English, Your Honour, under

5 the dates of 1899 [sic].

6 It is written that you have prepared a report, in English on the

7 right, to freedom of opinion and expression. Can you see that?

8 A. Yes.

9 Q. And perhaps, very briefly, could you indicate in a few words how

10 you came about to prepare that report? In what circumstances were you

11 asked to prepare that report?

12 A. These were very specific circumstances because, if I may say so,

13 it was the first time in the United Nations, because the topic of -- the

14 freedom of opinion and expression had become a recurrent topic in the

15 Human Commission and subcommission, and even in the General Assembly, to

16 be brief. Things had evolved, it was the time of the Glasnost, and it

17 was important to rethink the freedom of opinion and expression.

18 The commission asked the subcommission to prepare a report and to

19 think about this development. My colleagues appointed me to carry out

20 this task, and given the situation at the time, two years before the fall

21 of the Berlin Wall, I decided that this should be a report written

22 jointly with one of my colleagues, who would act as a core rapporteur,

23 and Mr. Denis Loteur [phoen], who was -- had the Yugoslav nationality at

24 the time, he came from Eastern countries, and I came from Western Europe,

25 and this was very symbolic at the time. Mr. Denis Loteur and myself

Page 242

1 presented the result of our work, and in our conclusions, we proposed

2 that the Human Rights Commission creates a position as a special

3 rapporteur on the promotion and protection of the right to freedom

4 throughout the world, which would be responsible for -- to make sure that

5 this fundamental freedom is respected.

6 JUDGE MOLOTO: I just don't understand why we are going into all

7 this evidence --

8 MR. METTRAUX: Well, at this stage, Your Honour --

9 JUDGE MOLOTO: -- and everything else.

10 MR. METTRAUX: We will ask him to identify the report in

11 question. That was simply --

12 JUDGE MOLOTO: Can't you just tender that report into -- if you

13 think that report is important, why don't you just tender --

14 MR. METTRAUX: Well, Your Honour, we believe, with respect, that

15 it's extremely important. We have to establish a number of facts, facts

16 which we say are relevant.

17 JUDGE MOLOTO: Do we have to listen to all of this to establish

18 those facts?

19 MR. METTRAUX: Well, Your Honour, I simply wanted to establish

20 the basis of his knowledge and ability to give the evidence which we will

21 elicit from him. We will now proceed to show him the reports. If

22 Your Honour wishes to go directly into the report and there is no

23 necessity to go into the process that led to the adoption of those

24 reports, we'll ask him to make the comment about the reports,

25 Your Honour.

Page 243

1 JUDGE MOLOTO: Please.

2 MR. METTRAUX:

3 Q. Mr. Joinet, let's move to the contents of the documents. First

4 let me ask you to turn to what is tab 55 of the same binder.

5 And, Your Honour, in English this would be tab 54.

6 Can you indicate, Mr. Joinet, whether that's the report that

7 we've been discussing a moment ago and which is mentioned in your

8 curriculum vitae?

9 A. Indeed, it is.

10 Q. And, very briefly, perhaps, can you indicate where this report is

11 sent to, where the report of the subcommission is sent to, and whether it

12 is adopted in any way by the United Nations?

13 A. It was sent to the Human Rights Commission, which examined it and

14 analysed the recommendations made in the report.

15 The decision-making process is the following: The commission

16 decides to follow or not the recommendations, and the case did follow the

17 recommendations, since it set up by a special rapporteur. Consequently,

18 according to the legal principle that the accessory follows the principal-the

19 principal having been adopted as a recommendation, the report was adopted.

20 Q. I would ask you then to turn to what is page 3 in the English,

21 Your Honour, and page 5 in the French, and I'll ask you to look at

22 paragraph 11, please. It would be page 5, Mr. Joinet. It's tab 54. For

23 the French, Mr. Joinet, it would be tab 55. I apologise. I'll ask you,

24 if you may, to turn to page 5 in the French and to look at paragraph 11

25 of that document.

Page 244

1 Do you have it?

2 A. Yes.

3 Q. I'd like to draw your attention to the last sentence in this

4 particular paragraph, and I'll read it out to you. It says this:

5 "Admittedly, the United Nations General Assembly, in its

6 resolution 59/1 of 14 December 1946, reaffirmed that, 'freedom of

7 information' is a fundamental human right and is the touchstone of all

8 the freedoms to which the United Nations is consecrated."

9 Now, my question is: Is that the basis on which you prepared the

10 report that we have in front of us? Is that your working basis for it?

11 A. On the basis of this resolution, certainly, since it was the

12 matrix, if I -- in this case, and the high authority of the body that you

13 mentioned, it was one of the challenges of the Vienna Human Rights World

14 Conference, and thus it was the normal follow-up of what you've just

15 described.

16 Q. Could I ask you perhaps to turn to the next page. It would be

17 page 4 in the English and page 6 in the French, and ask you to look at

18 paragraph 20, please.

19 A. Yes.

20 Q. I'll ask you -- I'll read the passage to you. It says this:

21 "Firstly, the report was based on the premise that the right to

22 freedom of opinion and expression should be interpreted extensively, in

23 contrast to the limitations which might be imposed upon it, and which

24 should be interpreted restrictively; hence the need to formulate

25 'restrictions on the restrictions.'"

Page 245

1 Could you explain, perhaps briefly, why you adopted that premises

2 and whether it's consistent with the position of the subcommission?

3 A. It was important because even though right at the beginning we

4 started the report in - I can't remember, I think it was in 1987 - in the

5 meantime the Gulf War started with Kuwait, and there was a whole

6 discussion on restrictions that may be imposed on the exercise of the

7 profession of journalists, so we promised not to consider that this right

8 was so fundamental that it could not have any restrictions, as stated by the

9 General Assembly. We had to admit that restrictions were possible.

10 But the issue was about how far could the restrictions go? In other

11 words, the rule is that the freedom of expression, and you have

12 acceptable admissible restrictions, and extensive interpretation must be

13 the rule and the number of restrictions limited.

14 Q. And would that position of principle be consistent with the

15 subcommission of which you were a member, Mr. Joinet?

16 A. Yes, it was in harmony for legal -- legal reasons. You know,

17 most of us were legal experts. But this harmony came also, as I

18 stated -- maybe that has no direct link with the case here, but we came

19 one from an Eastern country, the other from a Western country, and this

20 was very symbolic, you know, from the fact that there was a consensus

21 drawn on the freedom of expression, and there should be consensus,

22 whatever the geographical region in question.

23 Q. Can I ask you now to turn -- for the English binder, it would be

24 at page 6, and for the French binder, it would be page 8. And I will ask

25 you, Mr. Joinet, to look at paragraph 25 of your report and the

Page 246

1 subcommission report.

2 Can you see, under letter D, a sub-chapter called "The question

3 of contempt of court"? Can you see that?

4 A. [In English] Yes.

5 Q. I will read the first passage to you. It says this:

6 "Another member suggested that the rapporteurs should go

7 thoroughly into the question of contempt of court in order to think about

8 a restrictive interpretation of that concept."

9 Stopping there for a second, Mr. Joinet, can you explain why you

10 and your colleague of the subcommission of the United Nations thought

11 that a restrictive interpretation of that concept should be considered?

12 JUDGE MOLOTO: Yes, Mr. MacFarlane?

13 MR. MacFARLANE: Thank you, Your Honours. I do have a submission

14 with respect to the evidence, and I want to make it clear that I do so

15 very respectfully for the witness. I have the greatest of respect for

16 the witness, who served France and the world very well.

17 My concern is essentially the concern that I raised at the

18 outset, that we are dealing with a 1991 report which focuses on legal

19 policy underlying the law, what the law should be, and I'm afraid this is

20 one of those off-ramps. We -- ultimately, this Chamber will determine

21 what the law is, and it's my respectful submission that a discussion on

22 legal policy considerations and what the law should be will not advance

23 the situation. At the end of the day, this Chamber will be looking to

24 the Appeals Chamber for advice on the contours and the shape of the

25 notion of freedom of expression.

Page 247

1 JUDGE MOLOTO: Do you have any response to this objection, sir?

2 MR. METTRAUX: Well, yes, Your Honour, we do.

3 The problem that we are faced with is, as Mr. MacFarlane said

4 quite candidly, frankly, in his opening statement, he's taken an

5 extremely narrow perspective of the case, and in our submission,

6 Your Honour, not only too narrow a case, but the case that is plainly

7 wrong in law.

8 If you look at --

9 JUDGE MOLOTO: Sorry, I'm going to interrupt you there.

10 You've got to speak to the objection, not to how your learned

11 friend prosecutes this case and how you prosecute your case --

12 MR. METTRAUX: I'm coming to the response, Your Honour.

13 JUDGE MOLOTO: Get to it.

14 MR. METTRAUX: There are a number of facts which we say are

15 relevant to -- a number of facts and considerations which are relevant to

16 any restriction of a freedom of expression, whether it be in the context

17 of contempt proceedings or any other context. What we wish to establish

18 with Mr. Joinet is not -- is not what Your Honour should conclude, as far

19 as the law is concerned, but one -- what these facts are, whether these

20 facts are, indeed, relevant to the consideration of restriction of

21 freedom of expression, and using his expertise, and the reports that he's

22 used, what, in practice, by the United Nations and in other jurisdictions

23 is relevant.

24 To give perhaps one example to Your Honour, the Prosecution has

25 not mentioned any fact pertaining to those facts and circumstances that

Page 248

1 are relevant to the principle of proportionality. Evidently,

2 Your Honour, this is a matter for the Chamber to decide. But what we

3 wish to elicit are the facts which, in turn, would be relevant for

4 Your Honour --

5 JUDGE MOLOTO: These are not the facts of the case, Mr. Mettraux,

6 number 1. Number 2, I'm not aware that there is any dispute between the

7 parties about the concept of freedom of expression.

8 MR. METTRAUX: Well, we believe there is, Your Honour. Frankly,

9 we believe there is, insofar as our colleague has made suggestions; for

10 instance, that the mere breach of a court order, Your Honour, would, in

11 itself, constitute an interference with the administration of justice;

12 and that this, on that basis, would be sufficient for a conviction. What

13 we bring -- what we wish to bring to the attention of the Chamber is all

14 of those facts which exist between that fact, if, indeed, it is

15 established, and the conclusion that, indeed, an interference with the

16 freedom of expression is permissible.

17 JUDGE MOLOTO: Now, Mr. Mettraux, I don't think we need to be at

18 variance on what are the facts that have to be proved in the case. The

19 facts that have to be proved in the case are the facts around the actus

20 reus, and if there is any law that applies to that actus reus, that you

21 quote that law. And if the honourable witness here has written

22 extensively on freedom of expression, you can quote whatever he has

23 written. To bring him here to come and tell us about what "freedom of

24 expression" means and what it means in war and contempt of court, I just

25 find it -- I don't know what you are saying to this Chamber.

Page 249

1 MR. METTRAUX: Well, Your Honour, if we were simply to put the

2 report forward, without any explanation as to the process that has gone

3 into preparing that report, with respect, we would submit that there

4 would be no indication to the Chamber as to what the considerations were

5 in that regard. What we submit, Your Honour, is this witness can testify

6 to the underlying facts that led to those conclusions.

7 If Your Honour wishes later to disregard those as not being

8 pertinent to your consideration, we believe, however, that it is our

9 case, Your Honour, as we put it in our brief, and the case that we intend

10 to present, that there is facts relevant to the issue of curtailment of

11 freedom of speech which are directly related to the evidence of this

12 witness and what we can elicit through this witness. Those are not legal

13 conclusions. We will not ask him legal conclusions.

14 JUDGE MOLOTO: If you ask him facts, but you're asking him the

15 whole thing about what he wrote in these legal theories and what have

16 you.

17 MR. METTRAUX: Well, what I will do, Your Honour, if you wish, I

18 will ask him simply what the facts and considerations that led to this

19 conclusion are. If this satisfies Your Honour, I will certainly do so.

20 JUDGE MOLOTO: I think so, because I don't see us finishing this

21 case in --

22 MR. METTRAUX: I can reassure Your Honour we will finish tomorrow

23 on time. We will be finished tomorrow on time.

24 JUDGE MOLOTO: Go ahead.

25 MR. METTRAUX:

Page 250

1 Q. Mr. Joinet, could you look once again at the first sentence that

2 I read to you a moment ago, and could you indicate what facts and

3 consideration led you and your colleague to come to that conclusion?

4 A. [Interpretation] Of course, this is not in the report to which

5 you are referring to, because we didn't have time to deal with the issue

6 in the report itself, but in the preparatory phase. The discussion was

7 the following: The contempt of court is -- well, limits that freedom of

8 expression, but it is admissible so that justice may be administered

9 serenely. The discussion was on whether there can be differences in

10 appreciations on freedom of expression, well, with the contempt of court,

11 the originating facts, were the facts -- had the facts occurred during

12 the proceedings or whether the revealed facts occurred after the

13 proceedings; in other words, at the end of the trial. So there was a

14 difference. Well, during the proceedings, contempt of court is

15 justified, but once the proceedings ended, can it still be admissible as

16 a restriction? And our point of view was negative.

17 Once justice has been administered, there is no longer

18 interference with the administration of justice, since the proceedings

19 had been closed. Then no restrictions should be applied. So it's a

20 difference in opinion.

21 We didn't have time to submit this to be discussed at the

22 subcommission, so that is the reason why this paragraph is very brief.

23 But that was the reason why we had this discussion and why this paragraph

24 is very short.

25 Q. And then in the same paragraph, you go on to say this:

Page 251

1 "In view of its scope as a measure of restriction of freedom, it

2 was feared that it might come into unduly common use in the courts."

3 Can you again explain what the facts and considerations that

4 underlie this comment or statement were at the time?

5 A. Briefly, this sentence is motivated by the following: We feared

6 that the fact of invoking more frequently or more and more frequently the

7 contempt of court might one day be used against the special rapporteurs,

8 the members of the subcommission in charge of conducting inquiries, who

9 necessarily express criticism. And, myself, I was criticised by certain

10 governments who regretted that the contempt of court could not be applied

11 to me because I was a rapporteur. But it's difficult when you conduct an

12 inquiry, for example in one case, to not criticise an authority at one

13 time or another, so we feared that there would be a kind of culture of

14 contempt of court which might develop.

15 JUDGE MOLOTO: That would be an appropriate time?

16 MR. METTRAUX: Yes, Your Honour.

17 JUDGE MOLOTO: Thank you very much. We'll take a break and come

18 back at quarter to 11.00. Court adjourned.

19 --- Recess taken at 10.18 a.m.

20 --- On resuming at 10.48 a.m.

21 JUDGE MOLOTO: Mr. Mettraux.

22 MR. METTRAUX: Thank you, Your Honour.

23 Q. Mr. Joinet, I just have one more question on this report, and

24 very briefly. If you see, under the paragraph that I've read to you a

25 moment ago, there's another section under letter E for the protection of

Page 252

1 journalists. Can you just explain what are the facts and circumstances

2 that underlie this section and why, perhaps, the members of your

3 subcommission felt journalists should be dealt with separately in this

4 report?

5 A. The reason is the following, derived from experience or

6 experience of special rapporteurs: In the field, in situations where we

7 had massive breach, it was difficult. Generally, the witnesses are the

8 victims or the authors, but it's rarely to find witnesses which are

9 outside. The importance of journalists is that journalists are informed

10 or seeking information, and thus there is a link between the

11 investigations one may do as an investigator and journalists. That's why

12 it's important not to restrict, beyond what is necessary, the freedom of

13 opinion and expression, and this under the form of freedom of the press.

14 Q. I'd like to move on to another aspect of your work. This

15 morning, in the previous session, you mentioned that you had worked with

16 the so-called Mazowiecki Commission. Can you briefly explain what your

17 role in -- involvement with that commission was?

18 A. As I stated earlier, I was chairman of the commission in charge

19 of investigating arbitrary imprisonment. When Mr. Mazowiecki was appointed

20 special rapporteur for Yugoslavia, he wanted me to help the human rights--

21 on the human rights issue, and the commission agreed, and that's why I became

22 deputy rapporteur in this assignment. Another colleague, Mr. Biji [phoen],

23 who has a high position at the Commission for Human Rights was also appointed

24 and joined us. He was rapporteur on summary executions and mass graves.

25 Q. And can I ask you, Mr. Joinet, to please turn to tab 65 of your

Page 253

1 binder, please.

2 MR. METTRAUX: Your Honour, perhaps there are two issues that I

3 should bring to Your Honours' attention. The first one is: The document

4 is available in English only. We have sought, on the EDS, to find the

5 documents. There was no English copy. Since the document is very large

6 and there's only two or three short passages, what we would propose to do

7 is, simply, I will read the French to Mr. Joinet so that Your Honours

8 will have the translation. We will not seek, Your Honour, to tender the

9 document itself.

10 The second issue which we would like to bring to the attention of

11 Your Honour is we could not find the exact date of the document, on the

12 document itself, but in Annex 2 to that document, there is a letter of, I

13 believe, 16 January 1993. And as Your Honour will see from the next

14 document, which effectively transmits this document, it's dated the 12th

15 of February, 1993. So the document was prepared sometime between January

16 and February of 1993.

17 Q. Mr. Joinet, I apologise. Do you know this document? And if so,

18 could you explain briefly what this document is?

19 A. Yes, I know this document well, which was drafted by an expert commission

20 established by the French Ministry of Foreign Affairs, and I was part,

21 as a UN expert, as a knowing expert, chaired by a high magistrate who had

22 chaired issues of crimes against humanity. And like other countries, the

23 French Ministry of Foreign Affairs were working with Italy, amongst

24 others, to contribute to the thinking and made proposals,

25 recommendations, to the General Secretary and to the competent

Page 254

1 authorities in charge of security issues, because the idea was to set up,

2 for the first time in history, since Nuremberg, an international

3 tribunal, which would be a pioneer like yours. This would no longer be a

4 tribunal of the -- those who had won the war over those who had lost,

5 which was a criticism of the Nuremberg Tribunal. That’s why it was

6 important to succeed in this pioneering task, and our contribution was to

7 set up this tribunal in the best possible conditions.

8 Q. Mr. Joinet, I'll just ask you to slow down a little bit for the

9 interpreters, and perhaps I'll ask you that follow-up question to save

10 time.

11 Is that correct, Mr. Joinet, that in your report, you

12 recommending -- you recommended, I apologise, the setting up of this

13 tribunal; is that correct?

14 A. Yes, that's accurate.

15 Q. And I'd like you, then, to turn, please, to page 25 of this

16 report that you prepared with your colleagues, and there's a passage that

17 I would like to read out to you. It's page 25, and it's the first full

18 paragraph. It is starts with the words: [French spoken]. Can you see

19 that?

20 A. [No interpretation]

21 Q. I will read out for the English speakers. It says this:

22 [Interpretation] "Secondly, it is not reasonable to admit before

23 the Court the setting up or civil law court which would lead to many

24 requests that the international – that the international jurisdiction would

25 not be able to deal with reasonably. We should establish the principle

Page 255

1 according to which it would be up to national courts, on request for

2 damages to victims or to the right-holders."

3 [In English] Can you explain to me, please, why that suggestion

4 came about and why it was made in this report?

5 A. One of the issues which led to the most important discussions

6 amongst ourselves, there were two trends: One, that I would call those

7 the pragmatic legalists, and the other, the legalists who had -- with

8 principles. The pragmatic legalists followed the following idea: This

9 tribunal, as I said earlier, was a pioneer tribunal; thus, we needed to

10 have -- we needed really to do our best for it to succeed. So for

11 these -- this group, it's premature, you know, that right from the start

12 of this international jurisdiction the fact that it should follow civil

13 law -- it should enable civil lawsuits.

14 And the second trend, on the other hand, the de facto legalists believed

15 that a fair trial meant that victims could be parties in the proceedings, so

16 the Court, which was ad hoc court, should open the way and should really

17 put all the chances on its side and admit that civil lawsuits could be

18 dealt with in this tribunal would be too complex.

19 So at first I was in favour of the legalists, but then I felt

20 more in favour of the pragmatists, and then through experience we would

21 understand whether civil lawsuits would be admissible. And I believe

22 that it is now the approach adopted by the International Criminal Court,

23 but it would have been premature at the time.

24 Q. And that model, I will come in a second as to where this report

25 went to, and I will move on to that in a second, but before I do: Can

Page 256

1 you tell me, Mr. Joinet, whether that model, to call it that, that was

2 proposed in your report meant, in practice, that to enable the victims to

3 obtain reparation in front of national jurisdiction, I think you said

4 "Tribunal Nationale," they would need access to information capable of

5 enabling them to do so; would that be correct?

6 JUDGE MOLOTO: The only problem I have with your question is that

7 you are leading the witness now.

8 MR. METTRAUX: I am, indeed, Your Honour, and I will try to

9 reformulate the question.

10 JUDGE MOLOTO: There's no point, because you've told him the

11 answer already.

12 MR. METTRAUX: I'm grateful, Your Honour.

13 JUDGE MOLOTO: Yes, Mr. MacFarlane.

14 MR. MacFARLANE: Thank you, Your Honour.

15 My concern is a broader one than the leading. I won't comment on

16 that. But again, with the greatest of respect to a very eminent witness,

17 what we're essentially talking about is a report which probably provided

18 the seed for the establishment of this Tribunal. And I understand how my

19 learned friend is wanting to develop a bridge between the report and the

20 Tribunal, but again I raise the question of where we're going. If my

21 learned friend wants to tender the report, I have no objection.

22 JUDGE MOLOTO: I asked your learned friend right at the

23 beginning. He didn't want to. He wants to go through the witness. I

24 don't know.

25 MR. METTRAUX: Well, I will reformulate the question, Mr. Joinet.

Page 257

1 Q. Were there any discussions or any consideration given, in the

2 context of this committee, as to the ability of victims to obtain

3 reparation in front of national tribunals? And if so, which

4 considerations?

5 A. This is a complex issue, but I'll try to be brief.

6 What do we understand by the concept of reparation or damages?

7 Of course, it's material, you know, damages, but experience shows that

8 the first full reparation by the victim is also to uncover truth, and,

9 you know, the right to truth and the right to justice. Where it was very

10 clear, with the work I did on forced disappearances or -- I worked on the

11 draft convention, you know, a family with a missing person would like to

12 know the truth. It wants to know where the body is, what happened. And

13 thus there are two ways of providing reparation; there's moral reparation

14 and material reparation. Absence of material reparation would only add

15 on to a very miserable situation, very often these people are destitute

16 people.

17 In practical terms, the need to provide reparation, when you

18 can't be a plaintiff before the jurisdiction, meant that you had to go

19 before national courts, but you need to have a fair trial and to be -- to

20 be on an equal footing. Now, with the victim being in a position to

21 prove -- to prove this before a national court in the same way as it

22 would have been in front of an international court, this is -- this has

23 very important humane consequences and it's an open discussion. But I

24 don't believe I'm here to open a legal debate on this question raised by

25 the proceedings, the proceedings of international courts, where there

Page 258

1 cannot be individual plaintiffs. And the risk then is that the trial in

2 relation to damages before a national court becomes unfair because they

3 could object that the evidence is confidential.

4 Q. Well, let me follow up on what you said last. Can restriction on

5 the free circulation of information that is of public interest, in your

6 experience, interfere with the right and the ability of victims to obtain

7 reparations in national courts?

8 A. Per -- in terms of evidence, if they have no access to the

9 elements of evidence. But even if you have the reparation, in the

10 material meaning of the word, you always have the problem of reparation

11 by establishing the truth. And if you have excessive limitations, you

12 will not be able to satisfy this expression of truth as a moral form of

13 reparation for the victim.

14 This point is all the more important before the international

15 jurisdictions, that as I said earlier I have noted in Mazowiecki's case,

16 most of the witnesses were victims. The other witnesses are the

17 perpetrators; and, therefore, for the international administration of

18 justice, the witnesses heard are very often, and this, thank God, is not

19 my case, are former victims. Therefore, you have this problem. A victim

20 asked to come before an international court as a witness, and not as a

21 victim, this creates a difficulty, and this is what led to this

22 discussion even in the Mazowiecki Commission.

23 Q. Moving on from this report, Mr. Joinet, could you indicate to

24 whom, if anyone, this report was sent to, the report of your "Committee

25 de Reflection"?

Page 259

1 A. It was sent to the Secretary-General of the United Nations, as

2 this was the case for other countries. The Secretary-General was the one

3 who asked the member states to contribute to the development of this

4 tribunal, thanks to their think-tank exercise.

5 MR. METTRAUX: Your Honours, simply for the record, it's tab 69,

6 but I don't need to go into this document.

7 Q. Mr. Joinet, could you open tab 67 bis for the French and 67 for

8 the English.

9 Could you tell me, first, generally -- as you can see, it's a

10 Security Council Resolution 827 of 1993, of 25th of May, 1993. Do you

11 know this document?

12 A. Yes, of course.

13 Q. Can I ask you perhaps to go to paragraph 7 of that document.

14 That would be on the second page, please. I'll just read the passage to

15 you. It says this:

16 "The Security Council decides also that the work of the

17 International Tribunal shall be carried out without prejudice to the

18 rights of the victims to seek, through appropriate means, compensation

19 for damages incurred as a result of violations of international

20 humanitarian law."

21 Can you see that? And can you perhaps tell me whether that

22 finding, if I may call it that, by the Security Council is consistent

23 with the proposition or recommendation that you had made as part of your

24 committee?

25 A. If I get you correctly, my answer would be that this might not

Page 260

1 seem totally in line because we wanted that an independent action for

2 damages should not be possible before the international justice, and only

3 before the international jurisdiction; therefore, we refer to national

4 jurisdiction. So if we really want to apply legally this paragraph 7, we

5 have to accept reparations. The central point, and I know well the

6 United Nations language nuances, is “through appropriate means”. And you

7 may consider that sending the case before a national court is an

8 appropriate means, as compared to the difficulties which would arise by

9 flooding your Tribunal with lawsuits. You could

10 decide, of course, to caveat [as interpreted] an independent action for

11 damages before international court, but trying to avoid problems, and

12 this is what the international -- the court is -- criminal court is

13 doing.

14 But here we are dealing with a pioneer tribunal, and don't forget

15 that the ICC was able to use your experience and the experience of the

16 Arusha Court so as to develop a better damage procedure with more

17 appropriate means, because experience was very helpful in their case.

18 Q. I'm grateful, Mr. Joinet. I think you've answered all my

19 questions on this document, so we can move on to something different.

20 I would like to ask you a few questions about your acquaintance

21 with Ms. Hartmann. First, let me ask you that. Do you know

22 Ms. Hartmann, personally?

23 A. I don't know how you put it in English, but I -- in French, I

24 would say that I do not know her personally, but I know her

25 professionally, because I met her on the field, in the former Yugoslavia,

Page 261

1 when I worked as a co-rapporteur or the deputy rapporteur of

2 Mr. Mazowiecki.

3 Q. And can you recall why or in what circumstances you came to meet

4 Ms. Hartmann in the former Yugoslavia?

5 A. I met her, and this is more or less in line with what I said

6 earlier as to the role of the press, I met her in the same conditions as

7 I met other journalists in other countries where I was carrying out other

8 missions. In difficult investigations -- in your context you have with

9 the person, I'm not talking about the communication services of the

10 United Nations, but I'm talking about the relations between the

11 investigators and the journalists, so the paradoxical point --

12 JUDGE MOLOTO: Slow down, slow down. The interpreter is

13 struggling.

14 THE WITNESS: [Interpretation] Please forgive me. Normally, journalists try

15 to get information from the investigators, but in situations like that,

16 it is very often the investigator, and this was my case with this lady,

17 who asked her questions, because when we arrived with Mr. Mazowiecki,

18 the difficult situation in Yugoslavia -- this issue was very difficult

19 in Yugoslavia and you had parcels of land under the control of

20 different forces, paramilitary forces -- and I remember

21 when I investigated on Mr. Arkan, who -- late Mr. Arkan, or Mr. Seselj,

22 we needed to know, as exactly as possible and as accurately as possible

23 how the puzzle was made. And Ms. Hartmann, who was also a journalist who

24 was famous for having good knowledge of the situation in the area, was

25 able to contribute to our investigations in discussions of that sort.

Page 262

1 Q. And briefly, perhaps, what did you know Ms. Hartmann's reputation

2 as a person, if you knew of her reputation as a person, or her reputation

3 as a journalist at the time? Could you briefly state that?

4 A. It is difficult for me to answer. She was someone I knew

5 professionally, but not personally, so all I know about her is

6 professional. But Mr. Mazowiecki had asked me to give him some

7 information. At the time, she was not a special envoy but she was the

8 correspondent of one of the largest French newspapers, the "Le Monde"

9 newspaper. So one might consider that if she had been sent by this

10 journal, it is because she had the necessary professional skills and

11 competences. That's what I thought.

12 Q. Well, while we are on the newspaper "Le Monde," I will ask you to

13 turn to tab 68 of your binder.

14 And, Your Honour, there is a translation of that document at

15 68 bis.

16 Mr. Joinet, this is an article from the newspaper "Le Monde," and

17 it is called [indiscernible]. Do you have that in front of you?

18 A. [No interpretation]

19 Q. And it's dated the 28th of December, 2008. Do you know that

20 document?

21 A. Yes.

22 Q. And are you one of the authors of that or one of the signatories

23 of that document?

24 A. I'm not a co-author, but I became a signatory, provided one

25 additional sentence is introduced, and I can read this sentence. It is

Page 263

1 the sentence which reads:

2 "We believe, on the contrary, that international justice, which

3 mission we have always supported, could only be strengthened in its fight

4 against impunity by encouraging a large reflection on its role and

5 functioning. Its credibility is at stake."

6 This is a sentence I have written, and it is inspired by my ten

7 years of experience on this report and the fight against impunity I was

8 requested to carry out by the commission. And in my report, I insist on

9 the important role of international jurisdiction, and the role as an

10 example for the perpetrators of crimes.

11 Q. And, Mr. Joinet, could you explain, why did you feel you should

12 sign up to an article that was critical of the process against

13 Ms. Hartmann? Can you explain that briefly?

14 JUDGE MOLOTO: Yes, Mr. MacFarlane.

15 MR. MacFARLANE: Thank you, Your Honour.

16 At this point, I think I need to be a bit more specific than in

17 my previous comments, which were more general in terms of a concern.

18 This involves an attempt, on the part of my learned friend, to ask the

19 witness questions concerning an article which critiques these very

20 proceedings, and I fail to understand, even in the remotest sense, what

21 the relevance is. So I object to this line of questioning.

22 JUDGE MOLOTO: Mr. --

23 MR. METTRAUX: Well, Your Honour, obviously the paper is

24 perfectly relevant. It's indicative of the position of this witness in

25 relation to these proceedings and his credibility as a witness. What we

Page 264

1 are trying to establish is not whether Mr. Joinet is right or wrong, but

2 what his reasons were to contribute to this paper. And what is of the

3 greatest interest to us are the questions that come thereafter, the

4 comments that are made in the paper, and why those were made, and what's

5 the basis for it.

6 JUDGE MOLOTO: Objection sustained.

7 MR. METTRAUX:

8 Q. So I'll move to the -- to the content, and I won't ask you why

9 you signed up to it, Mr. Joinet. But can I ask you to look at the -- at

10 the first page, please.

11 JUDGE MOLOTO: And while you're looking at the first page, is

12 that --

13 MR. METTRAUX: I apologise. I will find it in the English,

14 Your Honour.

15 JUDGE MOLOTO: I'm looking at the English. It says in "Le Monde"

16 "Trial in The Hague, point of view." Is that a correct translation of

17 the French?

18 MR. METTRAUX: Not quite. It should be "point of view,"

19 Your Honour, I'm grateful.

20 JUDGE MOLOTO: Should we find out who did the --

21 MR. METTRAUX: It's a CLSS translation, Your Honour. It's

22 probably a typo by CLSS, but it should be "point of view."

23 Q. Mr. Joinet, can I draw your attention to the third paragraph in

24 this document, and the second sentence. It says this: We're talking

25 about Ms. Hartmann:

Page 265

1 [Interpretation] "She merely discussed that the motivations of

2 the Judges who decided to restrict access to the archives in Belgrade,

3 including access for the victims."

4 [In English] Can you explain why that was relevant to you, to

5 draw attention to the fact that what she had decided pertained to what

6 the Judges had said or reason? Why was that relevant for you, to mention

7 that fact?

8 JUDGE MOLOTO: Yes, Mr. MacFarlane.

9 MR. MacFARLANE: Thank you, Your Honour.

10 My objection is the same as before. This is completely

11 irrelevant to the facts in issue, as defined by the order in lieu of

12 indictment, and we're not going anywhere.

13 JUDGE MOLOTO: Mr. --

14 MR. METTRAUX: Well, with all due respect to my colleague, who's

15 been objecting again, again, and again. Your Honour, those are

16 statements that were made by a respected, honourable magistrate who took

17 particular views about particular things that pertain to this case. What

18 we will submit at the end of the case, Your Honour, among other things,

19 is the reasonableness, I apologise, of the position taken by Mr. Joinet,

20 which was shared at the time by Ms. Hartmann. This is clearly coming out

21 of our brief. Our colleague is trying to interfere, quite frankly,

22 Your Honour, with our submission.

23 For instance, the reason why we mention, Your Honour, and perhaps

24 to clarify, the Security Council Resolution 827 that we mentioned a

25 moment ago, and which my colleague tried to stop before I could do so, is

Page 266

1 because it was mentioned by Ms. Hartmann, in her book, in the impugned

2 pages, and she cites specifically the paragraphs that are read in support

3 of her position and belief that she was acting legally.

4 Your Honour, as we mentioned in the brief, may take the position

5 that this interpretation, Your Honour, is incorrect, and we haven't

6 sought to suggest that the order that granted the protective measure was

7 illegal. What we said in our brief, Your Honour, is that the position

8 that Ms. Hartmann took at the time was reasonable, that is not one that

9 was so unreasonable.

10 What we wish to get from Mr. Joinet at this stage is why

11 assertions and statements that are also found in Ms. Hartmann's book

12 could be regarded by a reasonable person as proper.

13 JUDGE MOLOTO: Mr. Mettraux, my problem is that an objection is

14 being raised to this document. Now, when you answer to that objection by

15 a reference to Resolution 827, which is not a document that is being

16 objected to, and you base your arguments on that and what the accused is

17 supposed to have said in her book or her article, I just don't

18 understand --

19 MR. METTRAUX: Then I can make the point --

20 JUDGE MOLOTO: I don't understand the relevance of your response

21 to the objection.

22 MR. METTRAUX: With respect, Your Honour, indeed for this

23 sentence, for instance, I'll take this very sentence as an example, there

24 are two issues mentioned in that particular paragraph, the issue of

25 whether or not the motivation -- the magistrate -- the reasoning of the

Page 267

1 judges, are a matter that could lead to interference with the freedom of

2 expression of a person, or to contempt proceedings in this particular

3 case, this is part of our case, Your Honour. And we will establish it

4 was raised during the course of yesterday with Mr. Vincent, we feel we

5 have to put that to the witness, and we will put other documents which

6 will flush out, if you wish, our position on that point.

7 The second issue and the second part of the sentence pertains to

8 the victims. Again, this is a matter that is mentioned in the impugned

9 pages considered by Mr. MacFarlane and the article in question.

10 Not only that, Your Honour, but we would wish to make a legal

11 point in relation to this which has not been raised up to this stage.

12 The principle of freedom of expression, which is at stake in this case,

13 is not limited to the rights of our client to communicate information.

14 What our submission at the end of this case will be is that the

15 curtailment that would result from a conviction for content of this case

16 would effectively be a breach of the rights of the victims to receive

17 information and to freely discuss these facts. Your Honour, this is the

18 jurisprudence of the ECHR on which we are going to rely at the end of the

19 case to point out that consideration should be given to the interests of

20 the victims to be able and to not be able to be frustrated by criminal

21 conviction --

22 JUDGE MOLOTO: Mr. Mettraux, you'll argue at the end of the case.

23 MR. METTRAUX: I just wanted to be complete.

24 JUDGE MOLOTO: Mr. Mettraux, you have called this witness as a

25 fact witness, not as an expert witness. He can tell us what is contained

Page 268

1 here. If you keep asking him for his opinion on what is contained here,

2 you are now treating him as an expert witness. He can confirm that what

3 stands in this document stands in this document, and that's it. To seek

4 his opinion is to convert his status in this court.

5 MR. METTRAUX: I'm certainly not trying to do that, Your Honour,

6 and I will reformulate the question in order to not have an opinion. The

7 only thing we tried to establish is the basis for it, but I will move on.

8 Q. Just on this sentence, just to keep to factual matters, if you

9 may, could you tell me what were the considerations that led to you

10 making that statement, including that statement in the article? Could

11 you just say that?

12 JUDGE MOLOTO: Mr. Mettraux, of what relevance are his

13 considerations? The purpose of tendering this document is to tender this

14 document as an exhibit. If that's the intention, we will look to the

15 witness's mind within the four corners of the document.

16 MR. METTRAUX: Well, Your Honour, if at the end of this case, as

17 we wish to do, we do intend to rely upon the statements made in this

18 article to submit to Your Honour that the position, in itself, contained

19 in this article is reasonable, in fact, and to the extent that Mr. Joinet

20 can assist, reasonable in legal terms. In order to be able to do that,

21 Your Honour, we need to establish from Mr. Joinet what the consideration

22 that led to this statement being made in the article were. Otherwise,

23 all we can do, Your Honour, at the end of the case, is to point out the

24 fact that these comments were made. Unless, with the leave of the

25 Chamber, we are allowed to explore with the witness, and with the

Page 269

1 greatest of respect, we ask to be permitted to do that, we will not be in

2 a position to make that submission at the end of the case, Your Honour.

3 The questions will be brief, and they will be well directed, but we need

4 to be able to establish the reasonableness of these statements.

5 JUDGE MOLOTO: Now you're saying the reasonableness of this

6 statement is not disclosed to you, and why not?

7 MR. METTRAUX: Well, Your Honour, unless there's an acceptance on

8 the part of our colleague that everything that is said in this article is

9 reasonable and could be adopted as a reasonable view by a reasonable

10 person, such as our client, we would move on away from this document. If

11 Mr. MacFarlane is ready to agree to that, we can certainly move on from

12 the document.

13 JUDGE MOLOTO: It's not for this Court to ask Mr. MacFarlane

14 whether he thinks the document is reasonable, but what I do want to find

15 out is just whether what you are doing here is reasonable and relevant to

16 the trial, to the case.

17 MR. METTRAUX: Well, I hope to be reasonable, Your Honour, and I

18 believe I am.

19 As I indicated a moment ago, there is clearly disagreement

20 between the parties as to a large number of facts. What we will -- or

21 what we intend to establish, Your Honour, is that within the range of

22 disagreement, there's a whole range of various reasonable positions on

23 various issues that pertain to this case, including this particular

24 question and including several other statements contained in this

25 article.

Page 270

1 What we wish to do at the end of the case, Your Honour, is to

2 convince Your Honours that these positions, which were shared by

3 Ms. Hartmann at the time and which formed part of our case, may be

4 adopted by Your Honours as a basis for acquitting Ms. Hartmann. Unless

5 we are permitted to establish the reasonableness of your position,

6 Your Honour, the only thing we could do at the end of the case is to make

7 submissions on that point.

8 JUDGE MOLOTO: Let me find out, and I'm asking you this last

9 question. After that, you can ask your questions. Is Ms. Hartmann

10 charged with unreasonableness?

11 MR. METTRAUX: We believe she is, Your Honour, quite frankly.

12 JUDGE MOLOTO: Okay, that's your position. Thank you. Okay,

13 carry on.

14 MR. METTRAUX: Thank you.

15 Q. Mr. Joinet, I will go back and read the sentence one more time to

16 you, because I think by now it may have been lost in translation. But

17 the sentence says this:

18 [Interpretation] "She merely discussed the motivations of the

19 Judges, who decided to restrict access to the archives in Belgrade,

20 including access for the victims."

21 [In English] Could you explain, Mr. Joinet, what was the basis,

22 if I may call it, for these assertions or comments that is contained in

23 this paper that you co-signed?

24 A. I -- what I can say about this case is that Ms. Hartmann was not charged

25 with disclosing facts, names or evidence. The goal, I guess, of the Serbian

Page 271

1 authorities was that the content of these files should remain confidential.

2 And what is mentioned here is that she did not disclose names or

3 other things, that she simply discussed the motivations of the Judges;

4 i.e., not the content, but the container.

5 If the motivations and the legal arguments must remain

6 confidential, this is, of course, a serious risk when it comes to

7 controlling the legality of the case, because you have to understand what

8 is the reason which led to this. And I don't know how it works in the

9 Tribunal here, but in France, if you decide to have a hearing in closed

10 session, you have to explain why and you have to do it publicly.

11 So you may criticise the legal arguments from the very moment it

12 does not have to do with the evidence that the perpetrators, in this case,

13 Serbia, want to remain confidential. And this is what I meant here. And the

14 small statement is taking -- including access for the victims is the

15 consequence of what I said, because if you do not disclose, it also implies

16 to the victims, no access to the victims. And this is what we were discussing

17 earlier, the impact on the fairness of the trial when the victims

18 have no access to certain evidences, particularly in serious breaches.

19 Q. And perhaps before I show you another document, Mr. Joinet, for a

20 minute: In your 14 years or so as a magistrate in France, and in your 25

21 years working for the UN, have you become aware of any case of content

22 where a person was convicted for revealing the reasoning of a chamber?

23 Are you aware of any such case?

24 A. No, I have not heard about similar cases.

25 Q. Could I ask you to turn to tab 68 ter of your binder, please.

Page 272

1 For the record, Your Honour, this is Rule 65 ter 9.

2 Mr. Joinet, briefly to go through the general element, as you

3 can --

4 JUDGE MOLOTO: I'm sorry. When you say "Rule 65 ter 9," what do

5 you mean? What page should we go to?

6 MR. METTRAUX: Your Honour, it's in your binder, it's tab 68 --

7 JUDGE MOLOTO: [Overlapping speakers]

8 MR. METTRAUX: Yes, that's the one, Your Honour. I was just

9 giving the 65 ter number for the Registry.

10 Q. Do you have the document in front of you, Mr. Joinet? This is

11 should be an IWPR ICTY Tribunal update of the 20th of May of 2008. Do

12 you have that?

13 A. [No interpretation]

14 Q. I'm going to read the passage, Mr. Joinet, because I apologise,

15 we don't have a French translation of that, but I'll tell you what it's

16 about. The title of the document is "Ex-Prosecutor Calls for Tribunal

17 Reform.

18 "Sir Geoffrey Nice tells IWPR Seminar that ICTY should review

19 procedures dealing with confidentiality."

20 And then there is a short description of what -- of the

21 circumstances in which this article came about. It says:

22 "A former Prosecutor in the trial of the late Serbian President

23 Slobodan Milosevic has questioned the policy of the International

24 Tribunal for the former Yugoslavia (ICTY) when it comes to applying

25 confidential measures to state documents on the ground of national

Page 273

1 security."

2 And then briefly it says:

3 "Nice was drawing on his experience as a Prosecutor at the ICTY,

4 when he observed first-hand the treatment of records of minutes of

5 Supreme Defence Council, SDC, meetings. These documents are said to

6 contain details that could paint a more accurate picture of Serbia's

7 involvement in the Yugoslav wars."

8 And then it says that:

9 "The Tribunal Judges granted the documents confidential status

10 during the Milosevic trial in a private hearing."

11 And the last introductory part, two paragraphs down, it says:

12 "Together with three other panelists, Nice was discussing the

13 confidential SDC documents."

14 And I'd like you to turn to the page where I'd like to ask you a

15 question, Mr. Joinet, about this. There is a passage, which is the sixth

16 paragraph from the top, starting with the word: "Nice also said ...,"

17 and I'm going to read it out to you:

18 "Nice also said that the decision to grant the SDC documents

19 confidential status, based on Serbia 'vital national interest' was not a

20 reason that was covered by the Tribunal Rules. The Rules state that

21 confidentiality can only be provided on the grounds of protecting

22 national security."

23 And then there's another quote attributed to Sir Geoffrey Nice,

24 and it says this:

25 "I don't know what 'vital national interests' means, because it

Page 274

1 certainly has nothing to do with national security interests."

2 Now, would it be correct, based on this article, at least, that

3 Sir Geoffrey is referring to what he says --

4 JUDGE MOLOTO: Are you now testifying? I think you must ask him

5 what he thinks Sir Geoffrey is referring to.

6 MR. METTRAUX: Yes, if you wish, Your Honour.

7 Q. In your view, this last passage, Mr. Joinet, that I've read out

8 to you, what does it refer to? What is he talking about?

9 A. Just give me a few minutes so I can read and really understand

10 the English text.

11 I believe that this discussion raised by Mr. Nice, the author, is

12 a discussion concerning legal arguments. It does not say anything about

13 confidential facts. He just discusses the qualifications and skills. In

14 other words, they are two different elements, in his mind. What

15 justifies confidentiality is the concept of vital interest -- vital

16 national interest or - and there is another concept - the concept of the

17 protection of national security. And if I understand it correctly,

18 despite my poor English, and I would like you to forgive me for that, he

19 makes reference to the regulations or the rules, and he says that -- and

20 I have some difficulties with this because I'm working on the English

21 text. He says that national interest is not something mentioned in the

22 statutes which allow to curtail access to information. The only legal

23 concept is that of protecting national security.

24 What is at stake in this excerpt, if I understand your question

25 correctly, is not so much to understand whether it is the thesis of the

Page 275

1 vital national interest, which is well founded, or that of national

2 security, but rather to know whether we can discuss this argument without

3 prejudice to the confidentiality of the file. This is how I understand

4 it. And this discussion does not at all concern the contempt, but only

5 the container or the form. It's only a discussion between the lawyers as

6 to what thesis can be used as a foundation, I take this one, you take the

7 other one. It doesn't matter which one you take, but what is important

8 is whether we have the right to discuss that if it is not covered by

9 confidentiality, which is what I believe. It is substantial to the

10 control of legality. If you cannot even mention the legal reasoning

11 without dealing with the merits to be able to control the legality, you

12 have to be able to see whether this text is mentioned in the code, in the

13 statutes, or not.

14 Only national security is mentioned in the statute, not vital interest,

15 some lawyers would say, Well, I'm in favour of the extensive

16 interpretation, so "vital interest" is included in national

17 security. The other lawyers would say, No, because this is a

18 curtailment, and a curtailment means that you only need to stick to the

19 strict interpretation, so in this case, only national security can be

20 accepted. So it's only a question of discussing legal arguments, and I

21 do not believe that this is covered by confidentiality.

22 What is important for Serbian authorities is not so much

23 discussing the qualifications, but rather that the facts which led

24 through a decision-making process to massive violations

25 remain confidential.

Page 276

1 Q. And would it seem -- well, let me step back. Assuming, as we

2 must, that Sir Geoffrey Nice did not intend to commit contempt of court,

3 would it seem that, from this article, that a trained and distinguished

4 Queen's Counsel, who had personal knowledge of the Milosevic case,

5 thought that he could publicly discuss the legal reasoning of the Court,

6 or what he believed to be the legal reasoning, without exposing himself

7 to contempt charges; is that correct?

8 JUDGE MOLOTO: Mr. MacFarlane.

9 MR. MacFARLANE: Thank you, Your Honour.

10 I hesitate once again in rising, but what my learned friend is

11 asking is whether this witness can comment on what was in the mind of

12 Mr. Nice, and I fail to understand how this witness can help us and

13 whether it's even relevant. The only person who can help us on that is

14 Mr. Nice.

15 MR. METTRAUX: Your Honour, I'll withdraw the question. We'll

16 make those in final submissions.

17 JUDGE MOLOTO: Thank you, sir.

18 MR. METTRAUX:

19 Q. Mr. Joinet, can I ask you to move now to another document, which

20 is under tab 62 in your binder in English and 62 bis for the French

21 version.

22 Do you have that document in front of you, Mr. Joinet? This

23 should be a public transcript of hearing at the ICJ, dated the 8th of May

24 of 2006. Do you have that?

25 A. Yes.

Page 277

1 Q. And I'll ask you to simply start and proceed orderly.

2 If you can look at paragraph 55 of that document, it says this:

3 "Madam President," and it's the representative of Serbia

4 addressing the Court. It says:

5 "Madam President, allow me now to turn to another issue, the

6 question posed by Judge Simma in relation to the blackened section of the

7 documents of the Supreme Defence Council of the Federal Republic of

8 Yugoslavia."

9 Can you see that?

10 A. [No interpretation]

11 Q. And then if I can ask you to go to the end, it would be the last

12 sentence of paragraph 57, which is on the same page in the English and

13 the next page in the French. Paragraph 57, please. It says this:

14 "At the same time, the National Council for Cooperation, pursuant

15 to the confidential decision of the Council of Ministries of Serbia and

16 Montenegro, asked the ICTY Trial Chamber, in the case of the Prosecutor

17 versus Slobodan Milosevic, to order protective measures provided by

18 Rule 54 bis (F) and (I) of the ICTY Rules of Procedure and Evidence, in

19 relation to certain parts of these documents."

20 Have you been able to follow that?

21 And then at point 5, it says this:

22 "The ICTY Trial Chamber III recognised the interests of the

23 national security of Serbia and Montenegro with respect to these

24 documents and granted certain protective measures."

25 Can you see that? I apologise, Mr. Joinet. It's the first

Page 278

1 sentence of paragraph 58. Can you see paragraph 58?

2 A. [In English] Yes.

3 Q. And I will just ask you to read the first sentence.

4 Just a factual question before I move to the other paragraph.

5 Would it be correct to observe from this transcript that Serbia

6 appears to disclose, in a public hearing before the ICJ, the legal

7 basis --

8 JUDGE MOLOTO: Would you like to swap places with the witness?

9 MR. METTRAUX: Not at this stage, Your Honour, no, thank you very

10 much.

11 JUDGE MOLOTO: But why do you keep doing that?

12 MR. METTRAUX: Well, Your Honour, I have to --

13 JUDGE MOLOTO: Ask questions. Don't tell him what to answer.

14 MR. METTRAUX:

15 Q. Well, Mr. Joinet, focusing on --

16 JUDGE MOLOTO: And I don't know how this witness -- anyway, carry

17 on, but don't tell him the answer if you want to ask him questions about

18 this document. Ask him questions and let him give the answer.

19 MR. METTRAUX:

20 Q. Mr. Joinet, focusing on a second on the first sentence of

21 paragraph 58, can you tell me what this statements of the representative

22 of Serbia appears to relate to? Can you tell me that?

23 A. [Interpretation] I must say I really don't understand the scope

24 of this sentence. What document does it refer to? Is it a document of

25 the International Court of Justice, the verbatim of the International

Page 279

1 Court of Justice?

2 Q. Well, perhaps I should take you back, then, to the previous page,

3 if you may go back one step, Mr. Joinet, and again to paragraph 55 of

4 this document. You will see that the documents to which the

5 representative of Serbia is referring are the documents of the Supreme

6 Defence Council of the Federal Republic of Yugoslavia. Can you see that?

7 A. Yes, yes.

8 Q. And then if we can turn back to the paragraph 58, there's a

9 sentence there which I've read to you a moment ago. So could you tell me

10 how you understand this sentence? What do you understand it to refer to?

11 A. I believe I understand that according to the Serbian

12 representative, there is an interest of -- national security interest

13 that the information should be protected, and cannot, therefore,

14 be discussed.

15 Q. Thank you. And if I can ask you to move to paragraph 59, that

16 would be the opening sentence, it says this:

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

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

19 the contents of the redacted sections of the Supreme Defence Council

20 documents at this moment ..."

21 And then he mentions two reasons. Can you see that?

22 A. Yes, correct.

23 Q. And with the risk of being obvious, could you say what the

24 representative of Serbia felt he could not discuss? Was that the

25 contents of the documents or was that the reasoning of the Chamber?

Page 280

1 A. Well, of course it concerns the content. From the very moment

2 there is a discussion and confidentiality is applied, it applies to all

3 the parties present, including states. That's the way I interpret it.

4 Q. And if you look at the little -- still in paragraph 59, there's a

5 subparagraph number 2, and it says this:

6 "At this moment the redacted sections of the SDC documents are

7 under the protective measures imposed by the ICTY confidential order, and

8 we are obliged to respect that order."

9 Can you see that?

10 A. Yes, yes.

11 Q. And then the next sentence, the representative of Serbia and

12 Montenegro, as it was at the time, says -- makes a reference to Rule 77,

13 paragraph A-2, of the ICTY Rules of Procedure. And if you continue

14 reading it, will see that it pertains to the information relating to the

15 proceedings that can lead to contempt proceedings.

16 Can you perhaps indicate, Mr. Joinet, in your understanding of

17 that passage, what did the representative of Serbia believe to be the

18 subject of Rule 77 A-2, the redacted sections of the SDC documents or the

19 reasoning of the Chamber, which he had mentioned earlier?

20 JUDGE MOLOTO: Mr. MacFarlane.

21 MR. MacFARLANE: Thank you, Your Honour.

22 My concern is essentially the same thing. My learned friend is

23 asking this witness to try to comment on what another person, in another

24 forum, thought, or believed, or intended. I fail to understand how my

25 learned friend could offer this evidence.

Page 281

1 JUDGE MOLOTO: Mr. Mettraux.

2 MR. METTRAUX: Well, Your Honour, we'll keep this one as well for

3 final submissions, I think.

4 JUDGE MOLOTO: Thank you, Mr. Mettraux.

5 MR. METTRAUX:

6 Q. Mr. Joinet, can we go to tab 68 once again. This is tab 68 bis

7 in the French -- in the English. I apologise. 68 for the French, 68 bis

8 for the English.

9 This is again the article that you co-signed, and there is a

10 passage which is on the first page of the French version, and also on the

11 first page of the English version. It's in the third paragraph. It's

12 the last sentence, and I will read it out to you. The article says this:

13 [Interpretation] "The facts she is accused of disclosing, after

14 she completed her functions in the Tribunal, in reality were the subject

15 of public controversy as early as the 26th of February, 2007."

16 [In English] Now, Mr. Joinet, as before, what is the underlying

17 reason for you mentioning that fact or that statement in your article?

18 What motivated it?

19 A. Based on the information we had at the time, we highlighted the

20 fact that confidentiality, which had been ordered, was actually relative,

21 since a discussion was opened resulting in a certain number of

22 information which reduced the degree of confidentiality of these

23 documents; and therefore, de facto, there was a certain reduction in the

24 level of confidentiality.

25 Q. And why did you think that was relevant to this case, that you

Page 282

1 mentioned it in the article?

2 A. Well, I -- to be brief, I will just give you one example: In a

3 spy case where confidentiality is often mentioned, the case was about the

4 scientist who, at the time, was charged with supplying scientific data to

5 the Soviet Union. In France, we no longer had this Exceptional Court, "la

6 Cour de Sûreté," and we -- the case was brought before the "Cour

7 d'Assises," and you had -- the fact was to prove that each one of these

8 documents had already been published in the scientific magazines, which

9 normally are distributed to a limited number of people. And this was

10 covered by confidentiality before the Court of Exception, but this no

11 more applied because we were able to prove that this information had

12 already been publicised. And we are more or less in the same situation

13 when the elements are mentioned in public discussions where

14 confidentially legally exist, but, de facto, it is reduced.

15 Q. Can I ask you, please, to turn to the next page of that document.

16 Your Honour, it would also be in the next page in the English

17 version. It's the paragraph starting in the English with: "As such ..."

18 Mr. Joinet, I will ask you to focus on the -- in the French

19 version on the second full paragraph, the last sentence but one or the

20 last sentence but two. I will read them both. I will read them for the

21 transcript for you. It says this:

22 [Interpretation] "In underscoring the political motives behind

23 this decision, she merely exercised her rights as a citizen and her duty

24 as a journalist in examining the ins and outs of the public lawsuit."

25 [In English] I'll continue:

Page 283

1 [Interpretation] "She fought against this attempt at impunity in

2 the alleged dissimilation of major facts associated with a genocide."

3 [In English] Well, let me first focus specifically on one issue

4 that you underline in this paragraph, the issue of "cause public."

5 Could you explain, Mr. Joinet, why that was relevant at all?

6 What was the basis, the reasons for you to mention that in the article?

7 A. Well, the least one can say is that the crisis the people of the

8 former Yugoslavia were faced with led to public discussions on a daily

9 basis. You have the impact of Mr. Mazowiecki. I carried out two

10 missions with him, but he carried out 17 missions, and I remember that

11 when I re-examined my first report for Mr. Mazowiecki, since I was only

12 his deputy, I drafted this document very quickly, because the situation I

13 saw was really atrocious, and I sent him -- contrary to the rules

14 applicable before the commission, he asked me to make it public

15 immediately so as to create awareness in the international community.

16 And his report was published subsequently, and this is how this sentence

17 should be understood. There is a public discussion both with the

18 citizens and the political circles, and, therefore, these -- this

19 information cannot be hidden in a state respecting the rule of law.

20 Q. Thank you for that, Mr. Joinet. I'd like now for you to look at

21 the last sentence. You've already -- you've already mentioned it earlier

22 today, but I will -- I will ask you to look at the last paragraph in this

23 article. You said this:

24 [Interpretation] "If he wants to overcome the situation in this

25 final phase of his mandate, the ICTY must take full ownership of the

Page 284

1 principles of transparency, the freedom of the press being the final

2 guarantee."

3 [In English] Could you explain, Mr. Joinet, what was the reasons

4 for you to feel that you should mention that in the article? What was

5 the basis for it?

6 A. There are two reasons to that, my personal opinion and what I had

7 noted.

8 What I had noted was that during the creation of this pioneer

9 court, and I really insist on that, there were some questionings not only

10 on the part of certain countries who believed that this went too far, and

11 also on the NGOs' side, who thought that this did not go far enough, but

12 for us, or at least as far as I was concerned, as I said earlier, it was

13 absolutely necessary for this pioneer court, which was not dealing with

14 winners and losers, but this court should be successful.

15 The reliability of the functioning of justice is linked to

16 transparency; not totally, but in part. All of you know that. I'm not

17 really fluent in English, but you're all familiar with this famous

18 sentence, "Justice must not only be done, but it must also seek to be

19 done." So that's what it was all about.

20 The reliability of this pioneer jurisdiction was based or partly

21 based on its transparency; and, therefore, transparency is not possible

22 without the intervention of the press.

23 It's not a public hearing, of course, that is transparent; it's

24 the "minimum minimorum." But if transparency, i.e., the public hearing,

25 which is the main point in law is -- does not appear in the media, then

Page 285

1 the reliability disappears or is reduced. And from the very moment this

2 positive transparency gives the impression that certain things are being

3 hidden, reliability would be even more compromised.

4 So this brings us back to the same problem. The freedom of

5 expression and the rule of fundamental freedom is important when it comes to

6 transparency in justice. Certain curtailments are possible, but provided that

7 such curtailments do not put you in the situation where the objective and the

8 reliability are compromised. So you have the right to make reservations,

9 but these reservations should not be of such an extent that they would

10 simply deprive the convention of its content. So you can limit the freedom

11 of expression in the field of justice, but not to the extent that it would

12 simply empty the -- or put an end to the vocation of the tribunal, which is

13 to punish perpetrators of egregious crimes, according to international law.

14 JUDGE MOLOTO: Would that be a convenient time?

15 MR. METTRAUX: That would be very well. Thank you, Your Honour.

16 JUDGE MOLOTO: We'll take a break and come back. Court

17 adjourned.

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

19 --- On resuming at 12.30 p.m.

20 JUDGE MOLOTO: Yes, Mr. Mettraux.

21 MR. METTRAUX: Thank you, Your Honour, I think I there may be a

22 problem with the translation ... [French interpretation on English

23 channel]

24 JUDGE MOLOTO: Sorry, we're getting the French translation

25 through our English channel.

Page 286

1 MR. METTRAUX: Indeed.

2 JUDGE MOLOTO: Okay, I'm told it's okay now. If you can start

3 again, Mr. Mettraux.

4 MR. METTRAUX: Thank you, Your Honour.

5 Q. Before the break, you were discussing the issue of transparency,

6 and I only want to ask you a point of translation. And I apologise for

7 that, but you've used the word "credibilite," "credibility," quite a

8 number of times.

9 A. [No interpretation]

10 MR. METTRAUX: Could the witness be assisted. He doesn't have

11 translation, apparently.

12 Q. Can you hear me, Mr. Joinet?

13 A. [No interpretation]

14 Q. Before the break, you were discussing the issue of transparency

15 of justice, and you made a number of statement in relation to what you

16 believe to be -- and you used the word "credibilite," "credibility of the

17 Court," and it was translated as "reliability" by CLSS. And I don't want

18 to take issue with CLSS, but perhaps to clarify things, could you explain

19 what you mean -- what you meant when you referred to "credibilite" or

20 "reliability" as it's translated?

21 A. I don't see where the difference lies, but I'll try to explain.

22 The notion of credibility is closely linked, from my point of

23 view, to the very important role of setting an example. And I sum this

24 up by an example. At the time I was at the prime minister's cabinet, the

25 crisis was at its peak. This was before Srebrenica. And at the end, the

Page 287

1 colonel who was part of that cabinet mentioned the situation of UNPROFOR,

2 and the head of the cabinet gave me the floor and jokingly said, What

3 does the human rights activist believe on this part? That was the

4 nickname they'd given me because of my position. And the colonel in

5 charge of the military cabinet answered this joke very seriously, saying,

6 Well, I've just come -- I've just come back from a visit around the

7 Balkans, and a number of military officers are taking very seriously the

8 existence of this Tribunal, and we fear that we might have to be

9 accountable one day.

10 And clearly international justice is, de facto, slow, especially

11 if it wants to be a good justice, but later -- sooner or later, massive

12 human rights violation shouldn't be hidden, shouldn't remain hidden.

13 Thus, this credibility, when there isn't enough transparency, when there

14 isn't -- when we can't have evidence to establish the truth, if not justice,

15 which comes later, then credibility is jeopardised, and the fact that

16 international justice cannot actually play its full role.

17 That's what I meant by using the term "credibility." I don't

18 know whether this fundamental nuance is clearly expressed in English.

19 Q. There is just one part of what you said that my left ear heard,

20 Mr. Joinet, which has not been put into the transcript. Did you say

21 anything about the preventive function of international justice in the

22 statement you've just made a second ago? And if so, could you reiterate

23 that statement?

24 A. I said that international justice in this area, you know, is the

25 role of justice in general, I'm talking about criminal justice here,

Page 288

1 well, setting an example through sentencing is to punish, but it is also

2 to prevent. Thus, authors -- perpetrators of massive violations, if they

3 know that they will have to be accountable before fair, independent,

4 impartial justice, in other words, not a justice of the winners, will

5 really thus play this preventive role. And the more progress made by the

6 international justice, the greater impact it will have in this direction.

7 And at least this is my wish.

8 The importance in this specific case, I'm sorry to repeat this,

9 but the hope comes from the fact that ICTY has a pioneer role.

10 MR. METTRAUX: Thank you for --

11 JUDGE MOLOTO: How long have you going to be, Mr. Mettraux?

12 MR. METTRAUX: I've cut a great deal, Your Honour, before the

13 break, and I mean a great deal. I hope to finish within half an hour.

14 JUDGE MOLOTO: Thank you.

15 MR. METTRAUX:

16 Q. Mr. Joinet, can I ask you to turn to tab 72 of your binder,

17 please.

18 A. [No interpretation]

19 Q. We don't have a French translation for you, so I'll have to take

20 you through it. I'll read the -- a number of passages from that

21 document.

22 Mr. Joinet, this is a press article or press report by IWPR.

23 That's the International War and Peace Reporting. It's dated the 17th of

24 May of 2005, and the title of that document is "Special Investigation:

25 Just At What Price?

Page 289

1 "Allowing Belgrade to keep key evidence from public view in the

2 Milosevic trial could have grave repercussions for justice and

3 reconciliation."

4 And if I ask you first to focus on the first paragraph in the

5 text of the document itself, it says this:

6 "The Hague Tribunal allowed Belgrade to present key documents in

7 the long-running trial of Slobodan Milosevic on conditions that they were

8 kept under wraps, delivering a blow to those who want justice to be seen

9 to be done."

10 Can you see that?

11 A. Yes.

12 Q. And then two paragraphs further down, it says this:

13 "And the lack of transparency means that others wishing to use

14 the Belgrade archives as evidence will be unable to access them."

15 And if you turn the page over, please, to page 2, it would be the

16 second paragraph, it says this:

17 "But the price paid was high. The Serbian government secured a

18 deal where crucial documents, potentially exposing Milosevic's

19 involvement in the Bosnian war, must remain confidential under the

20 so-called 'protective measures' arrangements."

21 And if you go one page further, that would be page 3 in this

22 document, there's a paragraph that tells you what documents this refers

23 to. It says this:

24 "The documents which now enjoy protected status at the Tribunal

25 are known to contain references to the regime's involvement in the

Page 290

1 Bosnian war. The most important papers recount the activities of the

2 then Yugoslav state's highest political and military body, the Supreme

3 Defence Council, SDC, from 1992 to 1999."

4 And then I'll ask you again to turn to the next page, where I

5 will put a -- read to you a statement and ask you a question about it.

6 There's a statement attributed to the journalist which says this:

7 "Perhaps even more damaging than the impact on the ICJ case in

8 the long term is the effect of denying sight of this document to the

9 Balkan public. As well as the victims, it has always been seen as

10 important that citizens of perpetrator states should have the facts

11 disclosed to them to prevent denial and encourage reconciliation."

12 Well, let me stop there for a moment, Mr. Joinet. Is this in any

13 way consistent with the conclusions that the subcommission drew in its

14 report on matters of impunity? Is that at all consistent with it?

15 A. May I just have a look at the text for a couple of seconds?

16 The question, in a nutshell, is stating that reconciliation might

17 be impossible if the truth comes out. That's the meaning of what is

18 said, in my view. I'll give you a nuanced answer, just based on my

19 experience.

20 International justice, like the special rapporteur's

21 investigations, requires obtaining the cooperation of the party concerned,

22 the State. This entails discussions. I suppose there were discussions.

23 It might lead to confidentiality measures being applied with two minimum

24 limitations. It should be the exception and not the rule, and obviously

25 it must be as limited as possible. And that's where things become

Page 291

1 difficult.

2 As it happens, when I was the director of the Data Inspection in

3 France, I went on an internship in the US on the Freedom of Information

4 Act, or more specific -- and there are specific methods enabling to

5 redact or blacken -- blacken part of archives when need be. And when it

6 is said that these limitations must be as few in number as possible, it's

7 not an issue of quantity, but of quality. You can very well blacken or

8 redact 30 parts of the document. It might give the feeling that you have

9 acutely limited the freedom of expression, but what's important is the

10 two or three fundamental parts that need to -- that are needed to

11 establish the responsibility of a head of state. So in the choice of the

12 passages that are blackened, what's important is the importance of the

13 evidence, the qualitative value of the evidence, in the passage.

14 I had the same problem when I was appointed by the

15 Secretary-General to Haiti, because there was a coup d'etat by

16 General Cedras, that Americans who were in Haiti left with the

17 President Aristide of Haiti and took the archives with them.

18 One of my tasks, when I came back with the rule of law with the

19 British, we fought for these archives to be brought back. At long end,

20 they came back with -- but with blackened passages by the American

21 authorities. Thus, I noted that the important -- I understood that the

22 importance of blackening is not qualitative, but -- sorry, is not

23 quantitative but qualitative. If you hide very important passages,

24 people can say there's been very little censorship, but it's the most

25 important things that were censored.

Page 292

1 Thus, through this admissible proceeding, which leads to making

2 certain documents confidential, this is admissible, but this is at the

3 heart of all legal systems. The proportionality principle needs to be

4 respected.

5 As for the purpose to be used and the means used, what is the

6 purpose of an international jurisdiction? Well, it is obviously to

7 establish the truth, and to establish the truth one needs to have

8 evidence. That was what I meant.

9 Q. Thank you for that. And in the example, perhaps speaking on the

10 example that you gave of Haiti, but more generally other situation you

11 may be familiar with, when you mentioned the principle of proportionality

12 and which you say is relevant in that regard, would considerations

13 pertaining to the right of victims of such a regime, I mean, the former

14 dictator in Haiti, would the rights of the victims to obtain that

15 information be at all relevant to determining whether the redactions that

16 have been made are proportionate?

17 A. Yes, there are two types of responsibility to be established,

18 according to the case -- the form of the case: The responsibility of the

19 state, and that's not what I'm answering. The question is on the right

20 of the victim to obtain reparation. I set aside the symbolic reparation,

21 in other words, to uncover the truth, if you don't get justice, and then

22 the material reparation, and there is no -- you can't have reparation

23 without evidence. The interest to act, as legal experts say, entails the

24 proof of being a victim and who is the perpetrator of the damage made to

25 you.

Page 293

1 Now, the more the factual evidence is covered, you know, what

2 happened on this day, who was the military commander, who was in the

3 police station when I was arrested, the kind of situation I encountered,

4 well, if the victim cannot bring the proof, the Judge will be right in

5 saying that he or she cannot obtain reparation; thus, the fundamental

6 importance of communicating evidence, disclosing evidence, you know,

7 between the state, the court and the prosecutor, but also the third

8 party, the victim.

9 Q. Well, let me follow up on that, Mr. Joinet. I'll ask you to go

10 to the -- it's three pages from the end of that article that you have in

11 front of you.

12 MR. METTRAUX: Well, in the version you have, Your Honour, it's

13 actually the last page, but, one, it's the top paragraph. It starts

14 with: "The search, partial access ..."

15 Mr. Joinet, since we don't have a French translation, I'll read

16 out slowly so you get a translation.

17 JUDGE MOLOTO: The document?

18 MR. METTRAUX: Yes, Your Honour. The problem is: The copy that

19 I have is slightly longer because of the format in which I printed it

20 out, but you have the same version as Mr. Joinet. In your copy, this is

21 the last page, but the one-but-top paragraph, as I understand. The first

22 three words are: "Such partial access."

23 Q. Mr. Joinet, I apologise. I will read out to you slowly so that

24 you get a translation of this article. It says this --

25 A. [No interpretation]

Page 294

1 Q. The paragraph, Mr. Joinet, starts with the words: "Such partial

2 access ..." can you see that?

3 A. [No interpretation]

4 Q. It's the last page but one.

5 A. What are the words in English, that --

6 Q. "Such partial access ..."

7 A. [In English] Okay.

8 Q. Let me read out to you the paragraph very slowly. It says this:

9 "Such partial access to truth was not something the Tribunal set

10 out to do originally, in the eyes of many Balkan justice experts. One of

11 the Tribunal's fourfold objectives, apart from bringing war crimes

12 suspects to justice, rendering justice to victims, and deterring further

13 crimes, is to 'contribute to the restoration of peace by promoting

14 reconciliation in the former Yugoslavia.'"

15 And then there is a quote that is attributed to Human Rights

16 Watch researcher, and I will read it out to you. It says this:

17 "Assuming the effect of the protective measures is indeed that

18 the SDC minutes and transcripts will remain hidden from the Serbian

19 people, it does a disservice to efforts to establish historical truth

20 about deeply-contested events."

21 And then there is a quote attributed to James Lyon, who is the

22 director of the International Crisis Group in Serbia, who is recorded as

23 saying the following:

24 "This deal is bad because the public in Serbia is still confused

25 by the lies spread by the Milosevic regime concerning the war in Bosnia."

Page 295

1 He goes on to add the following:

2 "If reconciliation is to be genuine, then the Serbian public has

3 to be made aware of what Milosevic and his cronies did."

4 Mr. Joinet, are those statements consistent with any such

5 requests or demands by human rights organisations or victim groups in

6 other countries with which you're familiar and have worked in and on

7 behalf of the United Nations?

8 A. I can testify that this kind of position is, indeed, the position

9 adopted by organisations stemming from civil society; namely,

10 nongovernmental organisations operating in the field of human rights.

11 Now, I agree, but my position is more nuanced, you know, between

12 the practically plus possible and the ideally, what you would ideally

13 like or wish for. Well, first of all, you need to take into account the

14 practically possible.

15 In a crisis situation, with massive human rights violations, one

16 cannot, in a short time span, re-establish the rule of law and put an end

17 to such violations. You need time. In fact, it is the role, in some 20

18 countries now, that the so-called truth and reconciliation commission

19 played. And the most well known and exemplary was that of South Africa.

20 They prepare people on both sides, include -- and this includes the

21 oppressor's side. You need to get them used to seeing the situation

22 change, to achieve what I call in my report not reconciliation; I make a

23 distinction between conciliation from reconciliation.

24 The first objective to achieve, be it justice to obtain evidence

25 or through investigations such as the special rapporteurs conducted, the

Page 296

1 "all or nothing" is negative. Thus, first one must obtain conciliation.

2 Reconciliation comes much later on.

3 What do I mean by this? And the most striking example, and I

4 worked on this, was Chile. When the dialogue commission was set up for the

5 conciliation part, it took time, and justice at long last brought 'round the

6 table people from the military who knew of a certain number of mistreatments,

7 or had taken part in them, lawyers, civil society representatives, and

8 members of the governments, and this is the way in which we discovered mass

9 graves, that we identified them, that it was possible to satisfy the need for

10 truth, what happened for the victims, and described the history of how --

11 that's the name of the commission in Argentina, you know, how did we get

12 there, and this is the way in which the search for truth can bring about

13 conciliation of the parties in question so that, with time,

14 reconciliation may occur.

15 I don't know whether I've answered your question, but I

16 understand that this NGO has a radical position. It is its role. But

17 obviously establishing facts is a prerequisite. It's rarely possible to

18 do so quickly, although what is absolutely necessary is to do it

19 nonetheless. You know, it's, Tell me what your past was, and I'll tell

20 you what your future is.

21 And that's where international justice plays a major role. Now,

22 it's criticised for being very slow. All forms of justice are slow, but

23 it is also not well known, and it's very important, in my experience.

24 Time that passes can be an investment in the search for truth, and thus

25 for reconciliation. And the end objective is to re-establish the rule of

Page 297

1 law. A paradox is that uncovering breaches, breaches of the rule of law,

2 might jeopardise the re-establishing of rule of law.

3 Well, it is, in another way, the proportionality principle. You

4 know, time -- the time factor, give time to time. NGOs are impatient.

5 Justice does its job slowly, albeit; but it is, in my view, the meaning I

6 would have given -- if I had been the NGO, I would have given a more

7 nuanced sentence than what you find in the report, but the purpose is,

8 indeed, to uncover truth and, if possibly, together.

9 Q. I'm grateful for that, Mr. Joinet, and we're hitting almost the

10 end of our allotted time, so I will quickly touch upon two issues and two

11 documents with you.

12 The first document is under tab 58, and you will find the English

13 under tab -- sorry, the French one under tab 59.

14 And very briefly, Mr. Joinet, can you describe -- well, first let

15 me ask you whether you know that document. And if you know it, can you

16 describe very briefly what this document is about?

17 A. During the World Conference on Human Rights in Vienna, it was

18 underscored that -- it was underscored that the fight against impunity

19 was very important within the programme of the commission. Now, the

20 commission asked the subcommission, of which I was one of the experts --

21 I'm sorry, I can -- I hear a language at the same time as I -- I have

22 English in my headset.

23 There was interference of English on French. I could -- thus,

24 the subcommission appointed me to draft this report. There was a

25 discussion, and my colleagues wanted me to suggest the setting up, yet

Page 298

1 again, a special rapporteur who would investigate on the fight against

2 impunity, its development, and protecting against impunity. And I didn't

3 agree, because I think impunity is cross-border, it covers many areas,

4 and so there was -- there would have been interference with the other

5 rapporteur's finding on torture, missing people, arbitrary detention.

6 So for once I thought it would be good to be educational, so I

7 suggested that we propose guide-lines to the commission, for the states,

8 so that they not limit excessively access to evidence, namely, and to

9 NGOs so that they may take into account realities in a pragmatic fashion.

10 So it was in the form of guide-lines to the people of interest. It was

11 decided that we would establish recommendations that were approved by the

12 commission.

13 Q. Let me ask you to turn to the one principle that we have the time

14 for today. It's at page 21 of the English. It's principle 15, 1-5, and

15 you can find it at page 22 of the French. And the title of this

16 principle that you put forth is "Cooperation Between Archive Departments

17 and the Courts and Extra-Judicial Commissions of Inquiry." And it starts

18 by saying:

19 "The courts and extra-judicial commissions of inquiry, as well as

20 the investigators reporting to them, must have free access to archives."

21 And then in the second sentence, it goes on to say:

22 "Considerations of national security may not be invoked to

23 prevent access."

24 I'll stop for a moment here and ask you: What was the underlying

25 basis, the reason why you put this proposition forward as a principle?

Page 299

1 A. First of all, this paragraph illustrates our discussion on what

2 is the rule and what is the exception. The -- so the exception being

3 strictly interpreted and the rule being broadly interpreted.

4 Now, this paragraph states that limitations can be brought, but

5 exceptionally, and I underscore this, and only for a certain type of

6 information or certain information. The end purpose, so far as this

7 information, if they were uncovered, could jeopardise the process of

8 re-establishing the rule of law.

9 It's a difficult issue. I took part in two peace agreements, one

10 on the Guatemala and one on Salvador, and it's true that seeking evidence

11 does not help reaching an agreement 'round the table, but the end

12 purpose, in the long term, is about re-establishing the rule of law.

13 Thus, it would be paradoxical to claim that one should limit

14 evidence on massive and serious violations because restricting the

15 existence of these violations and the evidence of such acts would enable

16 the re-establishment of the rule of law. It is exactly the opposite. This

17 is a question of time and what NGOs find difficult.

18 Of course, the page will not be turned quickly, as I wrote in my

19 report. Before turning the page --

20 JUDGE MOLOTO: Slow down.

21 THE WITNESS: [Interpretation] As I said in my report, before

22 turning the page one needs to have read it, and have read it together.

23 Consequently, of course, you can have limitations exceptionally,

24 only some, but not with massive violations. By hiding them, one cannot

25 assert that you will help in the re-establishment of the rule of law, or

Page 300

1 conversely, what's written, if you don't hide these, if you don't hide

2 the fact that there have been violations, that you would be jeopardising

3 the re-establishing of the rule of law. You can interpret it both ways,

4 so there's a paradox here.

5 So I really would like to insist on this fact, the time that it's

6 taken for international justice to understand all this. These

7 adjustments take time, and international justice is probably the

8 institution which takes this most on board, even though one might regret

9 how slow it is.

10 MR. METTRAUX:

11 Q. Well, Mr. Joinet, I've reached the -- the last document I would

12 briefly ask you to comment about, it's under tab 57 of your binder.

13 Your Honour, we'd wish to be quite candid about what we are about

14 to do. This is the document that was tendered --

15 [Defence counsel confer]

16 MR. METTRAUX:

17 Q. Mr. Joinet, can you confirm what the document which is under

18 tab 57 of your binder is? Do you have a letter of 19 of October, 2007?

19 A. Yes.

20 MR. METTRAUX: Your Honour, we've indicated we would like to be

21 quite candid about what we're going to do with this document with

22 Mr. Joinet. There is no suggestion at all that Mr. Joinet knows of this

23 document, or had seen it before, or that he can comment upon the merit or

24 otherwise of the document. However, we've indicated yesterday that we

25 were put in a somewhat awkward situation of not having called any witness

Page 305

1 Your Honours had indicated that the Defence would be in a position to ask

2 a number of questions to the Prosecutor, through the Chamber, with the

3 leave of the Chamber. We have a few questions for the Prosecutor which

4 pertain to this witness. However, and because time is running fast, what

5 we would propose to do, if it is agreeable to the Chamber, is to suspend

6 those questions for the time being, let the Prosecution carry on with his

7 cross-examination, and if the need arise after we've discussed with the

8 Prosecutor, to ask those questions tomorrow in the morning, if it's

9 acceptable to you.

10 JUDGE MOLOTO: Yes. Can we deal with that? I'd like to finish

11 with this witness. Are you done with your examination-in-chief?

12 MR. METTRAUX: Yes, Your Honour, I am, and I'm grateful to

13 Mr. Joinet.

14 JUDGE MOLOTO: Thank you.

15 Mr. MacFarlane.

16 MR. MacFARLANE: Thank you, Your Honour.

17 Cross-examination by Mr. MacFarlane:

18 Q. Mr. Joinet, I have a few questions that I'd like to ask of you.

19 Some of them are fairly general and some are more specific, and some

20 might relate to some of the documents that you've already looked at.

21 In your evidence, you've spoken at various points of right of

22 freedom of expression and other types of rights, and I just wanted to

23 clarify with you and see if you agree with the broad proposition that

24 with respect to rights generally, virtually all rights have limitations.

25 A. Yes, all, but --

Page 306

1 Q. All have limitations?

2 A. In the field of torture, there is no limitation. Most of the

3 rights have admissible limitations, but certain rights are -- cannot be

4 questioned. It is the report of the subcommission which stipulates what

5 are the rights which cannot be questioned and for which there can be no

6 limitations. It has the prohibition of torture, for instance.

7 Q. Setting aside torture for the moment, for instance, the right --

8 the rights of the media and freedom of the media, and the right to

9 freedom of expression, would you agree that those rights have

10 limitations?

11 JUDGE MOLOTO: Mr. Mettraux.

12 MR. METTRAUX: Your Honour, I'm sorry to intervene at this early

13 stage, but we were made to limit our question to non-legal and non-expert

14 matters, and now the Prosecutor is trying to do exactly that,

15 Your Honour. I, therefore, suggest that the Prosecutor be put to the

16 same limitation than we were. I understand we got quite a bit of leeway

17 on the part of the Chamber. I believe, however, that we are here

18 completely in the realm of the ultimate issue which Your Honour will have

19 to decide.

20 JUDGE MOLOTO: Mr. Mettraux, you have gone far afield in your

21 questioning of this witness on these issues, and I think this is a very

22 legitimate question. We'll allow it. Objection overruled.

23 MR. MacFARLANE: Thank you.

24 Q. Taking the matter one step further, Mr. Joinet, there being

25 limitations to rights, would it be fair to say as well that often rights

Page 307

1 are in conflict?

2 A. Rights are in conflict? You mean by that, that in some cases

3 some rights may be contradictory, so you limit one, compared to the

4 other? I have not really understood your question.

5 Q. Perhaps I could rephrase it. Often there will be a situation,

6 for instance, where a defendant has the right to a fair trial, a victim

7 might have a different type of right, the media might have yet another

8 type of right, and sometimes those types of rights are on a collision

9 course, they're in conflict .

10 A. Yes, there are cases where there may be conflicts between two

11 positive rights and one would be chosen rather than the other, if that's

12 what you mean by your question. Clearly, if I understand you correctly,

13 this means that you wonder whether it is acceptable that there be some

14 restrictions regarding the exercise of certain fundamental rights.

15 THE INTERPRETER: -- into the microphone.

16 JUDGE MOLOTO: The interpreter is asking something about into the

17 microphone. I'm not quite sure what she said.

18 THE INTERPRETER: Closer to the microphone, please.

19 JUDGE MOLOTO: Thank you.

20 THE WITNESS: [Interpretation] These limitations are accepted in

21 all legal systems, restrictions to the exercise of certain rights in

22 certain circumstances, but always under the supervision, if I may say so,

23 of the principle of proportionality. So restriction is possible, but

24 there are restrictions to the restriction.

25 For instance, this is something which exists in the Convention on

Page 308

1 Missing People which has been accepted -- adopted by the

2 General Assembly, and this is something I'm really familiar with. And it

3 states that a country cannot oppose or prohibit the disclosure of a

4 piece of information. It may do so, just to answer your question, unless

5 we're dealing with missing people.

6 So there is a restriction. The state may decide not to disclose,

7 but the restriction to the restriction, unless it is so serious that it

8 cannot refuse to communicate and to disclose.

9 And this development, which is a fairly recent development in

10 international law, was adopted about two years ago. And I was not

11 expecting your question, so I do not have the reference. It was adopted

12 by a decree of the Inter-American Court, after a decision of the

13 commission, which stipulates that in case of massive violations of human

14 rights, the state cannot invoke the confidentiality of the violation.

15 I do not know whether I have answered your question. I've tried

16 to, but please forgive me if I did not.

17 MR. METTRAUX: I apologise, Your Honour. It's not an objection.

18 I think it's the last sentence of Mr. Joinet which I heard in the French

19 was misinterpreted. I understood the word "impose," and it's been

20 translated as "oppose." I believe, Mr. Joinet, but perhaps the

21 Prosecutor can clarify this with the witness. I don't want to give

22 evidence on this.

23 JUDGE MOLOTO: Mr. MacFarlane.

24 MR. MacFARLANE: Perhaps I could read the screen, in terms of the

25 last sentence, and solicit from the witness whether there is any

Page 309

1 variation. The last sentence, as I see it:

2 "It was adopted by a decree of the Inter-American Court, after a

3 decision of the commission which stipulates that in case of massive

4 violations of human rights, the state cannot oppose the confidentiality

5 of the violation."

6 Q. Was that what you said or is there something missing in the

7 translation?

8 A. In the translation, it is "it cannot invoke," in other words, it

9 cannot refuse to give this information, but the exact terms, I do not

10 have the text of the decision, so I cannot guarantee for sure that these

11 are the exact terms you find in the decision. But that's the general

12 idea, when the violation is so serious that the state cannot refuse to

13 disclose information by using the principle of confidentiality, but this

14 is a regional court and you are an international court.

15 JUDGE MOLOTO: And, Mr. Joinet, you've given a very lengthy

16 answer. For the sake of the Chamber, just to get clarity, what is your

17 answer? Is it "yes" or "no" to the question? Do you accept that certain

18 rights conflict or don't you accept that? Just a "yes" or "no," sir.

19 I'm not sure what you are saying in your answer.

20 THE WITNESS: [Interpretation] I did not really get the meaning of

21 this question. Out of my own experience --

22 JUDGE MOLOTO: The question is simply: Do you accept that

23 certain rights conflict? For argument's sake, the right of privacy might

24 collide with the right to information, the right of free speech. You

25 want to tell the world about me, and I have said that that's private

Page 310

1 information that you should not -- and I might sue you for defamation.

2 THE WITNESS: [No interpretation]

3 JUDGE MOLOTO: Sorry, I didn't hear your answer.

4 THE WITNESS: [Interpretation] Yes, there may be contradictions.

5 MR. MacFARLANE: Thank you, sir.

6 Q. That being the case, that there might be contradictions or

7 conflicts, would you agree that one of the objectives of the law, broadly

8 speaking, is to try to find a way to respect or reconcile those

9 conflicting principles, those conflicting rights?

10 A. This is a concept I'm not really familiar with, because the idea

11 is to find a truth. So if there are conflicting rights, you have to

12 decide for the one which will allow you to get as close as possible to

13 truth.

14 Is that the meaning? I don't know whether my answer is really an

15 answer to your question, but that's the way I understand it.

16 Q. Let's move on to a related but a separate point.

17 Often, a court will need to issue an order, whether it's an

18 international criminal tribunal or a national court, but it needs to

19 issue an order based on the evidence that it has before it; is that

20 right?

21 A. Yes, this exists.

22 Q. Now, taking that matter the next step, would you agree that it is

23 imperative, at least in a democratic environment, that the court or the

24 tribunal be in a position to enforce the orders that it has made?

25 A. Enforce? Well, if a decision was taken, yes, it has to be

Page 311

1 enforced. It all depends what's the reason for the decision. If the

2 legality of the decision is not questioned, the answer is yes, but there

3 may well be questions about the legality of the decision which, for

4 instance, led to decide on confidentiality.

5 I'm not familiar with the Anglo-Saxon law, so I'm afraid I will

6 not be able to really answer your concerns. I'm trying to, but I wonder

7 whether this is what it was all about.

8 The answer is, yes, it must enforce it, but this does not mean

9 that there will be no discussions up-stream on the legality of the

10 decisions taken when you talk about the application of this decision or

11 the implementation of the decision.

12 Q. Let's assume for the moment that a final order has been made by a

13 court, there are no further appeals that are available, it is the final

14 order of the court. Would you not agree that it is fundamental to ensure

15 that the court can enforce its own order, if necessary?

16 A. If -- well, if I got your question, from the very moment -- well,

17 actually, you're alluding to the case where the case is over, because --

18 I apologise, but I don't really understand your questions. When the case

19 is over, there is no problem regarding the administration of justice.

20 Therefore, the question does not exist anymore.

21 I'm afraid I did not really get your question.

22 Q. In a situation where a court or an international tribunal has

23 made an order of a final nature, there's no further appeals, whether it's

24 at the end of the case or during the course of the case, is it not

25 important to ensure that the court or the tribunal can enforce that

Page 312

1 order, if necessary?

2 A. It is normal that a tribunal or a court, if it has the

3 possibility or the means, and it should have them, should enforce its

4 decision. The whole issue is -- and I believe you are thinking in terms

5 of confidentiality, whether confidentiality should also apply to the

6 existence of the decision which decided so and whether it should be

7 enforced. So I believe that the limitations based on confidentiality

8 only concerns the content of the decision, but not the fact that the

9 decision which will decide on the confidentiality is confidential. It

10 cannot be confidential; otherwise, there is no transparency at all in

11 justice.

12 And this is the example I have used a while ago. In my country,

13 if you decided to have a closed session, which is a form of

14 confidentiality, you have to decide that in a public hearing and to

15 explain why, and then it becomes confidential. But the decision, in

16 itself, is not confidential.

17 So, therefore, when a court or a tribunal enforces its decision,

18 it remains confidential, except for the decision which decided on

19 confidentiality. Otherwise, this becomes a secret justice.

20 Q. Mr. Joinet, I hadn't actually asked any questions yet in relation

21 to a confidential decision. I was taking this one step at a time and was

22 asking you if you could advise me on whether or not a court or a tribunal

23 ought to be in a position and must be in a position to enforce its own

24 orders. I'm just asking a simple question at this point.

25 A. To enforce it, yes. It all depends whether the enforcement is

Page 313

1 confidential or not, but you don't seem to ask this question.

2 Q. Well, we're going one step at a time. My next question to you is

3 this: I would like to suggest that the inability on the part of a court

4 or a tribunal to enforce its own orders would lessen the respect for the

5 court and would render it ineffective.

6 A. Give me just two seconds to think it over.

7 Q. That's fine.

8 A. Could you please repeat your question?

9 Q. My question was this: I'd like to suggest to you that the

10 inability on the part of a court or a tribunal to enforce its own orders

11 would lessen the respect for the court and would render it ineffective.

12 A. Yes, it may render it less effective. It all depends on the

13 nature of the decision. Would it lead to discussions or not? I'm just

14 talking among -- the public opinion, because for justice to be believed,

15 it's not only -- the problem is not only the courtroom, but the general

16 context, particularly in case of massive violation of human rights.

17 Q. We'll return to the question of decisions on whether or not an

18 order should be enforced and who makes those decisions in a little while,

19 but my next question to you is this: Is it not accurate to say that the

20 means of enforcement -- the decision to enforce usually is defined by the

21 court or the tribunal as part of its judicial apparatus? That is to say,

22 if a question of enforcement is necessary and it's brought back to the

23 court for a decision, that the decision on enforcement and the means of

24 enforcement fall to the court for a decision?

25 A. As far as I understand our discussion, I would say yes, my answer

Page 314

1 is, yes, regarding the content of the decision. But you cannot impede

2 legal criticisms of the issue in question.

3 I understood, and this is something I mentioned earlier, if there

4 is a discussion on the vital interests of the country or national

5 security, what is included in the rules, the decision, is enforced, this

6 is another discussion, but publicly it may be discussed. Is there or is

7 there no, in the rules, legal basis on which the decision is based? You

8 cannot impede the enforcement of the decision, but you may well discuss

9 or criticise, and this is a discussion which often happens between

10 lawyers, and this is what you call controlling the legality. You always

11 need to make reference to a text. There may be discrepancies in the

12 interpretation, but the discussion or the criticisms would focus on

13 legality and not on what you're enforcing, based on the documents,

14 et cetera.

15 Q. So if I understand your answer correctly, and correct me if I'm

16 wrong, you're really speaking of two different levels here. One is the

17 level of legality in which the court can enforce its own order, but the

18 continuing ability on the part of the public and groups to comment on

19 that process and to agree or disagree?

20 A. The public or the discussions between lawyers, which, or -- with

21 derives from such cases, and this is not only applicable to this case.

22 It is very important to know what it's all about, and this was just to

23 illustrate my line of reasoning. If the concept of the vital national

24 interest is included in this national security interest, or is it a

25 strict interpretation, and in this case, vital interest is not integrated

Page 315

1 into national security.

2 This is a discussion on the reasoning. This is not something

3 that can be covered by confidentiality. And I believe that the same

4 applies to rules. If you order closed session, you have to do it in

5 public hearing, and you must explain why. And as to the rest, you don't

6 talk about it.

7 So to summarise, you should not impede the enforcement of the

8 substance, but you should be able to discuss the line of reasoning which

9 leads to the decision which will be implemented.

10 Q. So the process of enforcement and the court's ability to enforce

11 its own order ought not to be impeded?

12 A. Yes, what some will consider that there is a discussion on the

13 terms "national security" or "vital interest," for instance, and they

14 will consider that this impedes or lessens the enforcement. But that's

15 not what I would consider.

16 Q. Let's move on to the next issue, which is perhaps more concrete

17 in this context, and that is the principle of freedom of expression.

18 You've indicated that you've spent really your career in the area

19 of human rights, and you are probably one of the leaders in the world in

20 that area, and you've spent a fair bit of time dealing with notions of

21 freedom of expression, and my question is this: At the beginning, you

22 agreed that there are limitations to rights, and just focusing on freedom

23 of expression for the moment, would you agree that the principle of

24 freedom of expression and the right to freedom of expression does have

25 limitations within the criminal judicial process, and that that's a

Page 316

1 necessary component of virtually any criminal justice system?

2 A. The answer is yes, but always making reference to the theory

3 according to which limitations to certain rights -- and in this case

4 you're making more or less direct reference to the administration of

5 justice. Yes, there are admissible or acceptable limitations. This is

6 clear, but it's always this principle of proportionality. They are

7 admissible up to the point they would end up impeding justice to look for

8 truth, which is its final objective.

9 I always keep taking the same example, reservations to the Treaty

10 of Vienna are acceptable. It lessens the efficiency of the treaty and

11 the effectiveness of the treaty, but they are not acceptable if they

12 empty the convention of its content. So limitations are acceptable,

13 provided they do not allow -- they do not impede justice from

14 establishing the truth, which is its final objective.

15 Q. Just on the question of proportionality, you have relied on that

16 principle quite --

17 JUDGE GUNEY: [Interpretation] Just to strengthen what you have

18 just said, according to the Vienna Convention on the Right of Treaties,

19 reservations are acceptable as long as they are in line with the

20 objective and the purpose.

21 THE WITNESS: [Interpretation] This is the exact sentence, yes.

22 The objective of justice is the search for truth.

23 JUDGE GUNEY: [Interpretation] It is acceptable as long as it is

24 in line with the purpose and the objective of the treaty?

25 THE WITNESS: [Interpretation] So the whole discussion is: What

Page 317

1 is the purpose and the objective of justice?

2 I understand much better the discussion now. I'm sorry, I

3 apologise, because up to now I had not really understood. Excuse me.

4 MR. MacFARLANE:

5 Q. I'd like to direct to you a situation within the context of the

6 criminal justice system in a court, either a national court or an

7 international criminal tribunal, so that's the context in which I'm

8 asking this question, and that is: Is the notion of freedom of

9 expression limited in a criminal court situation where there's a need to

10 protect information, for instance, that could harm someone or could

11 expose someone to danger, as an example?

12 A. I imagine you're alluding to what we call in French anonymous testimony,

13 without identifying the witness; only the court knows the name of the

14 witness, but the witness does not appear in public. Is that the practical

15 case you're referring to, the kind of limitation you're referring to?

16 Q. That could be one example. My question was broader, that in a

17 criminal justice system context, sometimes there is the need protect

18 information for compelling reasons, even though it might infringe on the

19 right to freedom of expression.

20 A. Obviously, that is the rule when investigating -- in the step

21 when investigating. In France, there is an investigating phase and then

22 there's proceedings. In fact, in the investigating phase, there is the

23 rule, the secrecy of investigations, so the waiver for disclosure

24 in that case is the exception.

25 Now, of course, the prosecutor can organise disclosure of

Page 318

1 information through a press conference, for example, to try and

2 re-establish the truth when rumours are going 'round. So the rule is

3 secret, but once you get to the proceedings, it's the opposite which

4 applies. Disclosure of information and transparency are the rule, and

5 the departure from the rule is limitation, admissible limitation. We saw

6 this earlier when you -- when the Presiding Judge moved into private session.

7 MR. MacFARLANE: I'm alive to the question of the time,

8 Your Honours. This portion of my cross-examination probably could be

9 completed with one final question or -- and then I would move into

10 another area tomorrow. Is that satisfactory?

11 JUDGE MOLOTO: All right.

12 MR. MacFARLANE: Thank you.

13 Q. Mr. Joinet, on a number of occasions you've alluded to the notion

14 of proportionality and how that's an important component to restrictions

15 on rights. My question to you is this: In terms of monitoring

16 proportionality, and making decisions on proportionality, and assessing

17 the degree of proportionality needed, would you agree that that ought to

18 and must of necessity fall to the court for assessment?

19 A. It is up to the court. You're talking about a national court or

20 this court?

21 Q. Either.

22 A. Well, in the case of a national court, I was faced with this

23 question constantly, because a lot of my investigations led to trials and

24 the question arose of the proportionality principle. Thus, the court

25 will decide, but with the appeals proceedings. You know, then it will be

Page 319

1 the national court of appeal, it will be the supreme national court, the

2 human rights -- European Human Rights Court, or the Inter-American Court,

3 or the Human Rights Committee in jurisdictional claims.

4 And when you check with higher courts, I'm not saying supreme

5 courts because none is supreme, we see judges who were competent to

6 assess proportionality were contradicted by a higher court. So the judge

7 may and is competent to assess proportionality, but stands under the

8 control of a higher court, and this brings us back to what we said

9 earlier, as long as the restriction is not proportional in relation to

10 the purpose which is sought. Thus, in all the treaties there is

11 admissible limitations to democracies. Admissibility means that

12 proportionality needs to be respected, and this applies to all the

13 courts, Inter-American, European, Human Rights Commission, et cetera.

14 MR. MacFARLANE: Thank you, sir.

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

16 Mr. Joinet, just to remind you that we are not done with your

17 testimony just yet, so you are still in the witness stand, and for as

18 long as you are in the witness stand, you must not talk to anybody about

19 the case until you are excused, okay?

20 This matter is going to stand adjourned until tomorrow at 9.00 in

21 the morning. You're to be back here in court, this same courtroom,

22 Courtroom I, at 9.00 a.m. tomorrow morning.

23 Court adjourned.

24 [The witness stands down]

25 --- Whereupon the hearing adjourned at 1.52 p.m.,