1 Friday, 5th November, 1999

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 9.38 a.m.

5 THE REGISTRAR: Good morning, Your Honours.

6 Case number IT-95-14/2-T, the Prosecutor versus Dario

7 Kordic and Mario Cerkez.

8 JUDGE MAY: I'm sorry to have kept you

9 waiting. It was my fault. I was discussing various

10 things.

11 Who's going to begin?

12 MR. SAYERS: Mr. President, with the Court's

13 permission, I will.

14 We have several issues that we'd like to

15 discuss today and get some rulings on, if we can. The

16 first is related to the issue of dead witnesses, and

17 specifically the statements of Midhat Haskic and Erik

18 Friis-Pedersen that the Prosecution wishes to have

19 admitted into evidence. Secondly, is the issue of the

20 site visit that the Prosecution has proposed. The

21 third concerns a request previously made by the Trial

22 Chamber to the Blaskic Trial Chamber relating to the

23 closed testimony of three witnesses. The fourth

24 relates to the protective order that has been entered

25 into; this case needs a slight modification in order to

1 make it reciprocal. We have an ex parte matter of a

2 very short duration that we need to take up with the

3 Trial Chamber. There is an issue related to the secret

4 witnesses that have been called by the Prosecution and

5 subsequent recantations of the need for protective

6 measures.

7 Then we have several issues related to the

8 conduct of expeditious and fair trial. There are five

9 issues that I've been able to identify. They are as

10 follows: the issue of the two weeks' advance notice of

11 the order of witnesses that has been ordered by the

12 Trial Chamber; the use of leading questions; the matter

13 of exhibits, and fair advance notice of what those

14 exhibits are going to be, so that we don't have to

15 scramble through them in the Trial Chamber; the issue

16 of notes and diaries prepared by witnesses; and then an

17 issue relating to certain standing objections in order

18 to eliminate the necessity for objections and

19 interruption of witnesses' testimony.

20 With the Court's permission, I will address

21 the issue of dead witnesses and Ms. Ers Haskic and

22 Friis-Pedersen; the Blaskic issue; I'll take up the ex

23 parte matter; and I will handle the two weeks' advance

24 notice and leading-questions issues. Mr. Stein will

25 take up the site visit issue, the protective order

1 issue, the matter relating to secret witnesses, and the

2 fair trial matters related to exhibits, notes, and

3 diaries, and standing objections.

4 JUDGE MAY: What we'll do is this. We'll

5 take these items one by one.

6 Perhaps the Registrar could do something

7 about the building works, please. Thank you.

8 The sensible course, I think, would be to

9 deal with some of these matters. Necessarily, it will

10 have to be dealt with in private session, I think.

11 But on the issue of dead witnesses, to begin

12 with the first, this is a matter which we have

13 discussed. It has been outstanding for some time. As

14 I observed on the last occasion, it's certainly not

15 usually a matter for the Defence to determine when the

16 application should be made, since it is the

17 Prosecution's application to have the evidence

18 admitted, not, as it were, your application.

19 Now, Mr. Sayers, what is it you want to say

20 about that?

21 MR. SAYERS: Obviously, Mr. President, if the

22 Court feels that this is not the appropriate time and

23 if the Prosecution feels that this is not the

24 appropriate time to address those issues, then so be

25 it. But I personally cannot imagine that there is

1 anything more to be argued concerning these issues. I

2 think that full submissions have been made to the

3 Court; they simply can be highlighted in oral

4 argument. As I understand it, with respect to

5 Mr. Haskic, anyway, there are some issues relating to

6 the death certificate that need to be addressed --

7 JUDGE MAY: Let me interrupt you. Mr. Nice

8 said yesterday that there was some evidence which he

9 was going to call which would bear upon that issue and,

10 if that is right, it would be presumably more sensible

11 to hear that and rule in the light of it.

12 Mr. Nice, perhaps you can help. Is that the

13 position, as I understood it?

14 MR. NICE: Yes. In each case -- that is,

15 Friis-Pedersen and Haskic -- there is more evidence yet

16 to come before the Trial Chamber on the topics to which

17 each of those deceased witnesses' statements could

18 bear. And it seems to me, rather than address argument

19 against the backdrop of projected evidence, it would be

20 more helpful for the Chamber and make more sense to

21 have all the evidence in, and then for the argument

22 about the dead witness to be addressed in light of that

23 evidence. It will then be possible to know to what

24 extent the evidence is freestanding and to what extent

25 it is confirming earlier evidence.

1 JUDGE MAY: And that could affect our ruling

2 in terms of --

3 MR. NICE: Indeed.

4 JUDGE MAY: -- how necessary the evidence

5 is.

6 Mr. Sayers, it seems sensible to deal with it

7 when we know the full context in which the evidence is

8 going to be sought to be admitted.

9 MR. SAYERS: May I make just one point in

10 that regard?

11 JUDGE MAY: Yes.

12 MR. SAYERS: I fully agree with the

13 Prosecution, if there is confirmatory evidence

14 regarding the actual facts in dispute regarding

15 Mr. Haskic, for example, actual corroborative evidence

16 of the facts about which he testifies, not about prior

17 meetings or prior issues, then I'm in full agreement;

18 it may be best to defer that.

19 But with respect to Mr. Friis-Pedersen, it

20 strikes me that that's a completely discrete argument.

21 The argument is this. It's very simple.

22 Mr. Friis-Pedersen's testimony, his sworn testimony in

23 the Blaskic case, has already been admitted in this

24 case under the rule of Aleksovski. So what we have now

25 is an effort on the part of the Prosecution to have his

1 statement admitted as well, and we think that, for the

2 reasons stated in the Tulica dossier decision, amongst

3 other things, there's absolutely no reason not to do

4 that. This man was cross-examined --

5 JUDGE MAY: Mr. Sayers, we hear the

6 argument. I think it would be more convenient to deal

7 with any dead witnesses together, no matter what the

8 arguments are.

9 The next point you raised, to do with a

10 visit. It may be more appropriate to deal with that in

11 a closed session in due course.

12 MR. SAYERS: Yes.

13 JUDGE MAY: If we leave that for the moment.

14 The next matter was the Blaskic order and the

15 closed testimony. Would you remind us.

16 MR. SAYERS: I don't believe that there is

17 any need to go into closed session about that because I

18 don't need to mention the names. I think the Court

19 will have in mind that on August the 6th a request was

20 issued to the Blaskic Trial Chamber to have the closed

21 session testimony of three witnesses released to the

22 parties in this case. And no action has been taken on

23 that, regrettably.

24 JUDGE MAY: Very well. Let me draw that

25 attention to the senior legal officer, and the matter

1 will be pursued. Perhaps, if again there is no

2 response within 28 days, you can raise the matter

3 again.

4 MR. SAYERS: I'm much obliged,

5 Mr. President.

6 JUDGE MAY: We will ask for a response,

7 please.

8 Yes. There's an issue on protective orders.

9 MR. SAYERS: And Mr. Stein will address that.

10 JUDGE MAY: Mr. Stein, is it a matter which

11 we could deal with in open session or is it a matter

12 for closed session?

13 MR. STEIN: It matters not either way.

14 JUDGE MAY: Deal with it now then.

15 MR. STEIN: May it please the Court. We

16 would essentially ask that the Court amend the

17 protective order to make it reciprocal. In particular,

18 I would give you up a draft of the section of the

19 protective order that we would like to have changed, if

20 I may. A copy for the Prosecution and the Registrar so

21 we won't be dealing in the abstract.

22 May it please the Court. Pursuant to Rule

23 73(a) and 75(a) of the Rules of Procedure and Evidence

24 and paragraph 11 of this Court's 15 January 1999 order

25 for measures to protect victims and witnesses, we

1 essentially move to amend certain parts of the

2 protective order relative to the announcement of and

3 contact with defence witnesses.

4 We will presumably be obliged shortly, and I

5 use the term advisedly, to produce a list of defence

6 witnesses. The Prosecution, of course, has insisted on

7 a protective order relative to the witnesses they have

8 named in their submissions. We, with great care, have

9 studied that order and we realise it is not reciprocal.

10 The sad part about what has happened in the

11 former Yugoslavia is there is a perception by witnesses

12 who I have interviewed, by witnesses that other members

13 of our team have interviewed, of concern, whether it's

14 legitimate concern or not is not the point, about being

15 contacted by either members of the Prosecution

16 themselves or investigators.

17 And so we essentially ask for the same kinds

18 of protections with regard to defence witnesses that

19 are already extant with regard to Prosecution

20 witnesses.

21 JUDGE MAY: So this is an order which will

22 apply when the defence begins?

23 MR. STEIN: Exactly. Or 30 days before

24 because we'll be announcing our witnesses by then.

25 I think the specifics of the order are set

1 out very clearly, the proposed order, in the draft I've

2 handed up. The Prosecution will suffer no prejudice by

3 it. We have suffered no prejudice by living under the

4 order for as long as we have, and it would be advisable

5 to enter into such an order. Certainly the Rules

6 contemplate that the orders entered for protection of

7 witnesses be reciprocal. Rule 75(a) authorises the

8 Trial Chamber to adopt measures for the protection of

9 witnesses "at the request of either party." This issue

10 was forecast in Pre-Trial proceedings, in pleadings

11 regarding the protective order. Certainly the

12 Prosecution was aware of it as early as 23 October

13 1998, and in our pleadings in the fall of 1998, and we

14 think now is an appropriate time to deal with and have

15 the Court resolve it.

16 JUDGE MAY: Does the Prosecution have any

17 observations?

18 MR. NICE: I haven't seen this draft before,

19 therefore, I haven't been able to integrate it with the

20 original order. Protective orders is something that's

21 been dealt with principally by Mr. Scott, and I didn't

22 know this was going to be raised this morning. There

23 is no immediate pressure on having this agreed. Maybe

24 have until next week just to look at it, and if there

25 is no objection, we'll let you know straightaway.

1 JUDGE MAY: Yes.

2 JUDGE BENNOUNA: [Interpretation] Mr. Stein,

3 wouldn't it be simpler, from a formal point of view,

4 because what you are suggesting is a review of a

5 previous order for protective measures, and therefore

6 we have to have the previous order in order to make

7 comparisons with what Mr. Nice had just said. But

8 would it be simpler, since it's going to apply only, as

9 you said, once the Defence has begun to present its

10 case or a little time before, you spoke about a month,

11 wouldn't it be better for you to have another plan,

12 another draft or, rather, another order rather than --

13 rather than one that would be changing this one?

14 Wouldn't that be easier? Because it's a formal issue.

15 I think it would be easier for you to make a

16 request in proper form, with a proposal for an order

17 for protective measures that we could study, and at

18 that point we would have the response from the

19 Prosecutor and we would take our decision in that

20 respect.

21 MR. STEIN: We can certainly proceed that way

22 -- it is on. We can certainly proceed in that way.

23 In this age of word processing, the reason that I

24 attached what I did and gave it to you, for those of us

25 who are semi-computer literate or not, is you can see

1 on the draft the old part of the order that we want to

2 strike and the new part that we want to enter. But we

3 certainly can file a formal pleading setting out the

4 change in the order, if it makes it easier, and we'll

5 be glad to do that. It won't take but a few minutes.

6 But I chose this way.

7 JUDGE MAY: The Prosecution needs some time

8 to look at it. Obviously, we need a bit of time,

9 because it may be helpful. There is no need to enter a

10 formal pleading with the argument and all of that sort

11 of thing, but to enter the proposed order which you

12 wish to suggest to us.

13 MR. STEIN: I'll clean that up and have that

14 within 48 hours or so.

15 JUDGE MAY: Yes, I think that would be the

16 best way to proceed.

17 The next matter is described as secret

18 witnesses.

19 MR. STEIN: May it please the Court. What

20 we'd like to have at this time is a review of the

21 process relative to secret witnesses. We believe thus

22 far two at least of the secret witnesses have revealed

23 the process which creates a problem. Two of the

24 witnesses, I'm sure Your Honours are aware because they

25 are not public, Mr. Cicak and Mr. Kljuic, we were told

1 were secret witnesses. The Prosecution flooded the

2 Chamber with many prejudicial statements why they

3 wanted to be secret witnesses. When they came actually

4 to The Hague, they said, "We don't want to be a secret

5 witness. We want our testimony for the world."

6 In the meantime, we had been prejudiced

7 because, A, only four of our team could work on the

8 matter; B, the discovery attendant to the witness's

9 testimony was delayed until ten days before their

10 appearance; and last, but not least, what is not

11 particularly apparent is that the process by which we

12 have to set up our affairs and our own shop to make

13 sure that no one has access to these particular

14 witnesses statements is difficult.

15 Moreover, some of the witnesses bring huge

16 amounts of documents and things with them. So in ten

17 days we are asked to analyse a large amount of

18 material.

19 What we ask the Court, not to eliminate the

20 process of secret witnesses. That would be

21 inappropriate. But before the Prosecution is allowed

22 to use and embark on the secret witness process, that

23 the witness sign an affirmation presented to the Court

24 as to why he wants secret witness status and that he

25 does in fact want said status. That would eliminate

1 the entire problem.

2 That's all I have to say on that particular

3 matter.

4 JUDGE ROBINSON: Mr. Stein, even after he

5 signs that affirmation, he might still change his mind.

6 MR. STEIN: Absolutely correct. Absolutely

7 true. But at least we'll have a reason in advance to

8 know of his status. And if he changes his mind, that

9 might be -- in fact, become a credibility issue. But

10 there are exigencies, of course, that we have to

11 expect.

12 I guess what I am really saying is there

13 appears to be, and I can't say this with certainty, a

14 gap between the Prosecutor's office and the witness or

15 whoever contacts the witnesses from the Prosecutor's

16 office on the secret witness status. We are trying to

17 close that gap. If someone from the Prosecution's

18 office believes the witness wants secret witness

19 status, have the witness himself sign an affirmation in

20 that regard.

21 MR. NICE: I certainly hope there is not a

22 gap between the office and the witness. There is, of

23 course, sometimes a difference between the attitude of

24 the witness ahead of getting here and ahead of

25 overcoming the practical difficulties of getting here

1 without being interrupted and disturbed, and the way he

2 feels when he is here. Of course, when they are here,

3 they are all subject to the emphasis that I personally

4 place on witnesses giving evidence in public whenever

5 possible. And that may account in part or whole for

6 apparent changes of mind.

7 I would resist the suggestion that there has

8 to be some routine whereby witnesses sign an

9 affirmation setting out their requested measure of

10 protection. That would create all sorts of practical

11 difficulties, I think, and would not relieve the

12 Tribunal of making a decision on a case-by-case basis.

13 I would ask the existing routine to stay in

14 place, that is to say, that the Tribunal will consider

15 applications on a case-by-case basis. Obviously, if it

16 has questions or concerns, when material is presented

17 in written form, it can seek further clarification from

18 us. If it wants something particular from a particular

19 witness, it can do so. But it can be confident that so

20 far as I am concerned, and I hope all of my team, the

21 clear emphasis with all witnesses is on giving evidence

22 in public, and if that has occasionally led to an

23 apparent change of position, I'm sorry. But I think

24 it's a change in the right direction.

25 MR. STEIN: Let me, if I can for the Court,

1 merely remind the Court that Mr. Kljuic, for instance,

2 came to Court and said, "I never wanted to be a secret

3 witness. I have to tell the world about what went

4 on."

5 Now, there must have been some

6 miscommunication between the Prosecutor's office and

7 Mr. Kljuic, because he was the subject of a secret

8 witness application.

9 JUDGE MAY: Or Mr. Kljuic changed his mind.

10 MR. STEIN: Either or. But this proposal

11 would elucidate that issue.

12 JUDGE BENNOUNA: [Interpretation] Mr. Nice,

13 when you work with a witness, your investigators see

14 the witness, they gather the substantial information,

15 and the witness says that he intends to testify under

16 that circumstance. Do you have him sign his statement

17 as to the substance? Would it be difficult for you

18 also to have him sign a declaration about the way and

19 the manner that he wishes to testify? Would that

20 disturb you so much? I am speaking about the future

21 witnesses. For those who have already been here it's a

22 closed issue. But when you make a statement, perhaps

23 they could also sign as to the substance and as to the

24 form.

25 MR. NICE: I don't think there will be a

1 problem when witnesses are seen at the time that the

2 decision is made for them to come and give evidence.

3 But there are witnesses, I think, with whom we have no

4 direct contact ahead of their coming to the Tribunal

5 and with whom negotiations are made sometimes via third

6 parties, of necessity, and sometimes via other

7 agencies. And so in those cases, of course we wouldn't

8 be able to have a statement contemporaneous with their

9 first expression of intention and willingness to

10 attend.

11 But where we do see a witness directly, yes,

12 I don't see any problem with that, and I can endeavour

13 to ensure that that is all done for all future such

14 witnesses.

15 JUDGE MAY: Or in the case of the other

16 witnesses, you simply send an affirmation or

17 declaration or something of that sort through to them

18 and ask them to sign it.

19 MR. NICE: If only it should be that easy. I

20 can deal with it ex parte, but there are one or two

21 cases where I'm afraid that simply wouldn't be

22 possible. But I think there are only one or two cases

23 outstanding, in any event.

24 JUDGE MAY: Well, I was going to ask you

25 that, as to the size of the problem.

1 MR. NICE: Very small. It's a very small,

2 outstanding problem.

3 [Trial Chamber confers]

4 JUDGE MAY: Well, we will consider this

5 matter. The principle, of course, is that evidence is

6 given in public session and we would encourage anything

7 to that end. We recognise that in some cases there

8 will be good reason why this can't be done. But we

9 also recognise that it does place burdens on the

10 defence, if such a procedure is followed, as has been

11 outlined.

12 What we shall order is this: That normally

13 the witness should sign a declaration that he wishes

14 the matter to be heard in the way which is suggested,

15 i.e., secretly; that if there are reasons why that

16 can't be done, that will have to be explained to the

17 Court. The statement should also set out briefly why

18 the witness is requesting that the matter be dealt with

19 in this way.

20 MR. NICE: That will be done.

21 JUDGE MAY: The next issues are, I think, if

22 I have it right, under the heading of expeditious

23 trial.

24 MR. SAYERS: Yes, Mr. President. We've

25 grouped these issues together, and I don't think they

1 will take particularly long to address. They are all

2 under the heading of fair and expeditious trial

3 issues.

4 At the beginning of the discussion, I

5 certainly want to stress -- and I hope that the Court

6 is under the impression that this has been the case --

7 that the Defence has been bending over backwards to try

8 to accommodate the expediency with which evidence is

9 brought in. It's embarrassing and unprofessional for

10 us to have to scramble around at the last minute to try

11 to come up with a comprehensive, short,

12 cross-examination plan. That takes unnecessary time,

13 goes into unnecessary subjects, and it's

14 extraordinarily difficult, once you have come up with a

15 plan in advance without knowing exactly what subjects

16 the witness is going to testify about, to eliminate, on

17 the spur of the moment, areas of questioning which, had

18 you had a little bit more advance notice or time to

19 prepare, a little more time for reflection, you

20 wouldn't have to go into. And that would save the

21 Trial Chamber's time and patience.

22 The first two issues that I want to bring up

23 are related directly to those matters. The first is --

24 actually, both of these issues involve a large number

25 of witnesses identified by the Prosecution as witnesses

1 it intends to call, and therefore for whom the Defence

2 has to prepare; 375, I think, is the number. I don't

3 think anyone really believes that that will ultimately

4 be the number, but we don't have any definitive number

5 yet, and that's a problem for the Court, but especially

6 for the people that have to prepare for the

7 cross-examination of these witnesses.

8 And so the two issues that I would like to

9 raise initially are the use of leading questions.

10 First, the Prosecutor itself sought a prohibition, as

11 no doubt the Trial Chamber will remember, on the use of

12 leading questions on direct examination. I think that

13 as procedures have evolved in this case, there's been a

14 move away from that, and perhaps it's a legitimate and

15 a good move under the appropriate circumstances. And

16 those circumstances are, I think, when we are given an

17 accurate -- and I stress, an accurate -- forecast of

18 what the witness is supposed to be saying sufficiently

19 in advance to be able to identify -- 24 hours would be

20 sufficient, as has been occasionally the practice with

21 respect to past witnesses; 24 hours would be sufficient

22 to specify to the Trial Chamber the matters upon which

23 we do not object to having the Prosecution lead its own

24 witnesses through the evidence. But I do stress that

25 we do object to the use of leading questions when we're

1 given these offers of proof 24 seconds before the

2 witness testifies, as was the case yesterday,

3 especially in regard to witnesses that the Prosecution

4 orally characterises as important witnesses, and

5 especially when there's such a substantial deviation

6 between the forecast of what they're supposedly going

7 to say and what they actually do say.

8 So we would urge the Trial Chamber to hold

9 the Prosecution to what it had originally sought, when

10 these offers of proof are not provided more than

11 24 hours in advance, and that is, do not lead your own

12 witness through the testimony. We think it's unfair.

13 It's unfairly surprising, and it puts unfair burdens

14 upon the Defence to have to make snap decisions, once

15 again on the spur of the moment, as to areas which are

16 appropriate subjects of leading or not.

17 JUDGE MAY: Can I interrupt, Mr. Sayers, to

18 say this. The first thing that you are asking for,

19 although you haven't in terms, is a definitive list of

20 witnesses.

21 MR. SAYERS: Yes.

22 JUDGE MAY: Now, as I recollect, we have

23 ordered a Status Conference towards the end of this

24 month, the 26th of November --

25 MR. SAYERS: Yes, indeed.

1 JUDGE MAY: -- to my recollection. And the

2 Prosecutor is going to provide us with a list.

3 As for the other matters, this is -- the

4 whole question of leading questions is partly a matter

5 of practice, and where I come from, you can't lead on

6 matters which are in dispute. That's the essential

7 rule, and the reason is that if you do, it makes the

8 evidence worthless, because it's counsel giving the

9 evidence.

10 But that said, on matters which aren't in

11 dispute, matters of bringing the witness to the point

12 of proof, to the real matters which are in dispute,

13 then leading questions play an important role; it gets

14 the witness there as quickly as possible.

15 We have been through this question of the

16 offers of proof and heard the Prosecution on the

17 subject, and their answer always is, "Well, we do the

18 best we can, but we have a limited amount of time

19 because of the witnesses arriving fairly late in The

20 Hague and us having to get the witnesses ready." We've

21 encouraged the use of these offers of proof as a way of

22 concentrating the evidence in a particular area, and we

23 would not wish to discourage their use.

24 There is no burden on the Defence in

25 relation -- or should be no burden on the Defence -- in

1 relation to saying what is disputed and what isn't. No

2 one would expect you, on getting a document,

3 immediately to be able to respond to it. I think it's

4 the ideal situation if you have it 24 hours in advance

5 so that you can, and I would hope that the Prosecution

6 have that in mind and try and comply as much as

7 possible. But I guess, in some cases, their answer is

8 that it's physically impossible to do it before then,

9 in which case there is no burden on you to say what

10 they can lead on and what they can't.

11 But I think some intelligent, as it were, use

12 of leading questions is perfectly permissible. And I

13 think to this extent there's a burden on the Defence,

14 to say, objecting, "Don't lead from now on."

15 MR. SAYERS: I fully agree.

16 JUDGE MAY: If leading is going on, "Don't

17 lead on this point." And it's an important part, if I

18 may say so, because it does indicate what's in dispute

19 and warns the Prosecution, and what isn't. If that's

20 of any assistance.

21 MR. SAYERS: Of course it's of assistance,

22 Mr. President, in the abstract, but as a practical

23 matter, when you're confronted with something that's 25

24 pages long and maybe 165 paragraphs -- I mean, I'm not

25 telling the Court anything that it doesn't already know

1 -- it's extraordinarily difficult for us to read that

2 and assimilate it in any reasonable period of time, and

3 then react to it instantly, without constantly standing

4 up and interrupting and -- I hope I can say --

5 incurring the risk of the Court's wrath by appearing to

6 be obstructive when we don't mean to be, and we simply

7 mean to say that these matters are in dispute. And

8 oftentimes the pace of leading questions is so fast

9 that sometimes you're through a subject before you have

10 the opportunity to say, "Objection."

11 JUDGE MAY: Mr. Sayers, speaking for myself,

12 I do not object when counsel, even from a sitting

13 position, shouts out, "Don't lead," and that is the way

14 to stop it. If there is a torrent of leading

15 questions, as it were, on a matter which is in dispute,

16 then of course the Prosecution should be stopped. And

17 it's in fact helpful if the Defence do say, "Don't

18 lead," because then the Court knows that these are

19 matters on which there should not be leading

20 questions.

21 MR. SAYERS: That is helpful, Mr. President.

22 I hope that it won't be necessary, but in the event

23 that we get deliveries at the last second, so to speak,

24 then we will try our best to inform the Prosecution

25 that it should not lead as to particular paragraphs.

1 JUDGE MAY: Yes. And if you have a situation

2 with the document arriving just before the witness

3 gives evidence, then by all means say so, so that the

4 Court knows what the position is. And if you do make

5 your objections in that form, then it will be

6 understood.

7 MR. SAYERS: Thank you very much,

8 Mr. President.

9 The second point that I wanted to address in

10 this regard is related somewhat, and it's somewhat

11 different from the point that you raised regarding the

12 universe of witnesses. It's really an issue that's

13 related to the scheduling order that was entered on

14 March the 22nd. We did not want necessarily to bring

15 this to the Trial Chamber's attention. We've had a

16 torrent of correspondence with the Prosecution, but I

17 think, frankly, the time has come when we need to

18 insist upon exactly what the Court ordered.

19 And the Court ordered two very simple

20 things. In paragraph 5 of the scheduling order that

21 was entered on March the 22nd, the Court required that

22 "The Prosecution shall provide the Trial Chamber and

23 the Defence with not less than two weeks' notice of the

24 witnesses to be called"; and then the second thing was,

25 "and shall draw the attention of the Trial Chamber to

1 the relative importance of certain witnesses as

2 listed."

3 Now, as far as I'm aware, there have been

4 about three occasions upon which we have received this

5 two weeks' advance notice in the seven months of

6 trial. There have been 54 witnesses called so far.

7 Many of the witnesses who were indicated in the three

8 two-week notices that we've got are actually witnesses

9 who have, A, not been called, or not called in that

10 order. So once again it's a matter of preparation, a

11 matter of expediency, trying to accelerate the fairness

12 of the process and streamlining our cross-examination.

13 I think we're entitled to exactly what the

14 Court ordered, except in extraordinary circumstances,

15 obviously, which can perhaps be addressed on a

16 case-by-case basis. But it seems to me, Your Honour,

17 if I may say so, that given the fact that the order is

18 so clear, it was entered before the trial even began,

19 we're entitled to know who the witnesses are going to

20 be for the upcoming two weeks and the order in which

21 they're going to be called, and that's all we'd like.

22 Also, it might be helpful if there was some

23 indication as to what the relative importance of these

24 witnesses was going to be because sometimes and

25 apparently an insignificant witness turns out to be a

1 very important one and apparently an important one

2 turns out not to be so important after all.

3 JUDGE BENNOUNA: [Interpretation] I understand

4 what you are saying, Mr. Sayers. That is, you're

5 telling us something reasonable. It would be

6 reasonable; it would be rational. It so happens that

7 the Prosecutor is confronted with difficult

8 circumstances and he explained on several occasions

9 what that was about so we all know what's going on, and

10 the difference between the reality and what is to be

11 wished. But what I would like to say to Mr. Nice is

12 that unless there is no testimony at all, unless there

13 are a few days without witnesses, preparation should

14 not be done in an improvised manner.

15 I don't think we're trying to justify here

16 the number of hearing days; that's not the problem.

17 The problem is to reach the truth within a fair trial

18 carried out under the best circumstances. I think I

19 agree with what Mr. Sayers has just said, it needs --

20 some preparatory time is necessary both for the Defence

21 and for the Trial Chamber, and that the Office of the

22 Prosecutor must do its best, keeping in mind the

23 difficulties that it is confronted with, and unless

24 there is no hearing at all, but it would be better that

25 the hearings be properly prepared and that the

1 information arrive in advance. At least that's how I

2 see things. I believe the problem is not to have a

3 record number of witnesses but rather to have a system

4 of evidence which is presented under the best

5 conditions with the best preparation and the greatest

6 fairness so that the Defence can present its case in

7 the best way.

8 I don't know whether Mr. Nice can improve

9 things further, given the difficulties that he is faced

10 with.

11 MR. NICE: As matter of history, I think the

12 two-week order was pretty well immediately overtaken by

13 our supplying 60 witnesses in the proposed order which

14 was then supplanted by an even longer list, or longer

15 list. We have always drawn to the Defence's attention

16 every change in the order of witnesses as soon as we've

17 known of it, so that it's always been my intention they

18 should have much more than just a two-week running

19 order. They should have the whole order of the

20 witnesses as being forthcoming. If we stuck with the

21 order itself, it would be restrictive on them and, I

22 think, restrictive on everybody else.

23 I always do my best to ensure that they have

24 at least two weeks' notice of the witnesses, but I can

25 just give you -- I think I started yesterday -- I'll

1 give you an example of the things that have happened in

2 the last two weeks. There was somebody who couldn't

3 come because his child effectively ran away from

4 school; that was one day's notice or two days' notice.

5 There was somebody who couldn't come because a child

6 was going to visit him, and a long-planned arrangement

7 was suddenly jettisoned by him; he said, "I'm sorry,

8 I'm not coming." Then somebody has been taken on

9 military activity to a trouble spot that's arisen

10 unexpectedly elsewhere in the world, and he's suddenly

11 taken out of the list.

12 These problems are happening all the time and

13 mean that we have to reorganise the list. The

14 witnesses further down the list, some of them are

15 people who've got booked dates; that is to say, like

16 the people who are coming next week, one of them in

17 particular, he's booked his dates a long time in

18 advance, and he can't really be moved from that slot.

19 There's another witness, later on in the year, the

20 rigidity of whose timetable is absolute, according to

21 him and those who represent him.

22 Therefore the problems of juggling witnesses

23 is very, very considerable. All I can say is we do our

24 very best.

25 I think that both my friends and the Chamber

1 will be heartened to discover what I'm going to tell

2 you, in any event, about the listing of witnesses for

3 the remainder of the trial. I can either do that now

4 or later, but for the immediate forthcoming fortnight,

5 the position is as follows. Carter comes in on Sunday,

6 will be proofed on Sunday, and will start his evidence

7 on Monday. Therefore the Defence are in a position to

8 read Carter's statements, and I've instructed

9 Ms. Somers to make available a summary, in draft form

10 if necessary, on Sunday, as soon as it is available.

11 Duncan, the brigadier or general, has given

12 us just Tuesday and Wednesday. He comes in, I think,

13 on Monday night and has to be out on Wednesday night.

14 Happily, Carter is willing to be a sandwich if

15 necessary; he can, I think, stay till Friday, so that

16 if his evidence isn't finished on Monday, then he will

17 be available on Friday.

18 But although I may not be here for much of

19 next week because I'm in Jelisic, I'm going to ask the

20 Chamber and my friends, if they can, to deal with

21 Carter on Monday; maybe the only way they can deal with

22 that is by taking the summary as evidence in chief.

23 And if Friday is free, Colonel Schipper, who was here

24 yesterday and the day before but who had regimental

25 appointments to deal with today -- and they'd been

1 booked in advance, appointments to his regiment, people

2 applying, so he really couldn't stand them up -- has

3 agreed to be available on Friday. His summary or a

4 preliminary summary will be served today. So that

5 takes care of next week, and I hope one way or another

6 the days will be full.

7 For the following week, at the moment where

8 we have only sittings on, I think, Thursday and Friday

9 morning, it's Forgrave and Hay who are expected to be

10 available. So that takes us the fortnight, I'm happy

11 to say, and neither now or at a later stage I will tell

12 you what I am going to do about the listing of all

13 other witnesses.

14 JUDGE ROBINSON: Don't keep us in suspense.

15 MR. NICE: Well, the Chamber will recall that

16 the question of outstanding witnesses was raised by me,

17 and the Chamber responded to my offer of information by

18 a Status Conference. But, nevertheless, I am carrying

19 on doing exactly what I said I was going to do, which

20 was to review all outstanding potential witnesses and

21 to decide which ones, in our judgement, could provide

22 evidence that the Chamber should have and which ones I

23 could dispense with.

24 The list of those witnesses will be with you

25 not just on the week of the Status Conference, but next

1 week and I hope at the beginning of next week.

2 The list is going to be broken down into

3 various categories which I have identified in the way I

4 said I was going to; that is by looking first at the

5 material that you should have and then deciding on the

6 process by which we'll be able to make it available to

7 you.

8 So there will be a list of witnesses willing

9 and to be called. They will be in the order I intend

10 to call them. And that should, broadly speaking, cover

11 the remaining witnesses for the trial. This isn't,

12 obviously, an absolutely final position. It can't be.

13 But it's where I am at the moment, in the common

14 vernacular.

15 The second category are witnesses who are at

16 present unwilling, but in respect of whom I will be

17 applying for subpoenas because I don't believe there is

18 any reason why they should not respond to a subpoena.

19 They are, I think, limited in number. One or two hands

20 at most.

21 The Chamber will recall that there might be

22 witnesses who are unwilling, who I am not prepared to

23 attempt at this moment to subpoena, because I judged

24 that they may have good reasons for being unwilling,

25 and in respect for whom I will in due course make an

1 application to have their statements read. That

2 category may be very small indeed. It may be

3 effectively one or a couple of witnesses. And that's

4 all.

5 There will then be witnesses whose evidence

6 can, in our submission, properly be taken by affidavit,

7 and there are witnesses from other trials whose

8 evidence can be given by testimony. They will be

9 identified and can be --

10 JUDGE MAY: By transcript.

11 MR. NICE: I'm so sorry, by transcript. And

12 then there is then a small residual category of

13 witnesses who we may apply to deal with one way or

14 another, but about whom decisions are pending.

15 Now, that material I hope will be available

16 at the beginning of next week. It's being concluded at

17 the moment. It will, I think, provide rather

18 reassuring reading. I don't think we are going to be

19 in the event above 100 witnesses to be called overall.

20 And I remember one of the things Your Honour said at

21 one stage. And it may even be ten less than that. I'm

22 not sure at the moment. But that's the rough figures,

23 I think.

24 In addition to that material, the only other

25 evidence that has to be dealt with is evidence in

1 relation to the villages. And I've already explained

2 how I am going to be dealing with that; namely, not by

3 dossier. We better call them something else. By

4 village binders. I will have provided for everyone

5 extracts of material on a location-by-location basis

6 the villages or occasions that have been worked on by

7 individual investigators, and they, together, with one

8 of the lawyers from my team will be able at convenient

9 points in the remaining timetable of the trial to say,

10 well, in respect to Busovaca, here are the documents

11 that in light of the Tulica ruling we would invite the

12 Chamber to accept. Our proposal is that these two

13 witnesses or this witness or these three witnesses at

14 most need be called. Alternatively, may now, in the

15 judgement of the Chamber, be read, given all the other

16 evidence that's in.

17 So there will be a limited number of

18 exercises, location by location, presenting documents

19 and raising for discussion whether there are witnesses

20 who need to be called. If there are witnesses to be

21 called further on a location-by-location basis, they

22 will be limited in number and they won't take very

23 long.

24 So that by next week I hope everyone will

25 have a pretty final, not absolutely final, but pretty

1 final list of witnesses to be called and in the order

2 they are to be called. And once we've gone through the

3 village binders or location binders, all the remaining

4 witnesses will be identified as well.

5 JUDGE MAY: You may also give us a date when

6 you anticipate the Prosecution closing. It would be

7 helpful. You've got our timetable of hearings,

8 although there is bound to be slippage one way or

9 another.

10 MR. NICE: Yes. I haven't done a calculation

11 yet, and therefore it's only a matter of feel at the

12 moment. But I suspect we'll have something in the

13 region of 20 witnesses for the new year, but I hope it

14 won't be much more than that. In a way, that's a

15 better guide than giving a time. I've already said, I

16 think twice today, and once yesterday, the only way

17 that we can accelerate the speed of witnesses, apart

18 from -- no, there are two ways we can accelerate the

19 speed of evidence. One is by taking summaries to some

20 degree as evidence in chief. The other is by taking

21 much more limited evidence from individual witnesses.

22 I believe some of the outstanding witnesses,

23 I can't have them all in my memory, I'm afraid, but

24 some of the outstanding witnesses are witnesses who can

25 be taken to very focused points of evidence and taken

1 quite shortly. One or two of them, of course, are

2 witnesses who may be long, because they are, for

3 example, experts.

4 But I hope that's reassuring, and it may not

5 make the proposed Status Conference unnecessary, but it

6 may make it in fact more useful.

7 JUDGE MAY: Yes. Well, that's helpful.

8 Anything the Defence want to say about that?

9 It started as a response to your point, but went rather

10 further.

11 MR. SAYERS: It was reassuring, obviously,

12 Mr. President. But, as you point out, it was not in

13 response to our point. Our concern is a little bit

14 more tangible, if you like. We are the ones who have

15 to prepare for the unexpected and so forth. And we

16 would like two weeks' notice to the maximum extent

17 possible. There may be, we realise, individual

18 deviants from the two week requirement, but we don't

19 think that it's unfair to insist upon what the Court

20 has ordered.

21 It makes it more expeditious to do the

22 cross-examination. We can do it more professionally.

23 It saves time. And it's what the Court's ordered.

24 JUDGE ROBINSON: Mr. Sayers, of course you

25 are right, that the original order was for two weeks'

1 notice, and I think it's only reasonable to maintain

2 it, but subject to individual circumstances that might

3 call for a reconsideration. Did you hear that?

4 MR. SAYERS: Yes, I did, Your Honour. And I

5 completely agree, but I think, to use the exception

6 rather than the rule should be that the -- we get the

7 two weeks with exceptional -- exceptions in individual

8 circumstances. Not that it should be exceptional for

9 us to get the two weeks notice. And I'm not upbraiding

10 the Prosecution. I really am not. I understand the

11 constraints under which they work. But it really puts

12 a very substantial burden upon the Defence not to have

13 two weeks' notice of who the witnesses are going to

14 be. It really does, for reasons that I don't think

15 require explication.

16 JUDGE ROBINSON: I believe we understand the

17 situation, and we have to take a fair and realistic

18 approach to it.

19 JUDGE MAY: The next point, I think, concerns

20 the use of exhibits?

21 MR. STEIN: It probably does, Judge, but in

22 comparison to the other three points which I'd like to

23 raise, it's relatively minor. Perhaps I can jump

24 ahead.

25 Although absent from the Court, I have been

1 following the transcript with great care, and there are

2 three things that continue to crop up that I think we

3 might offer some assistance to the Court in terms of

4 expeditious treatment.

5 In quick order, they are a standing objection

6 to any evidence outside the time frame of the

7 indictment. Hearsay, a recurring issue. And last but

8 not least, most important to us, the issue of what's

9 been called facetiously tit-for-tat or the actions of

10 the Muslims and the Serbs in this regard and why it's

11 important. If I may cover them each briefly.

12 I've done a little chart I'd like to hand up

13 to the Court for its own edification. They can -- you

14 can pitch it if you find it of no utility. It's

15 essentially the amended indictment put in graphic form

16 relative to the time frame set out in the counts. The

17 time frame is different. But essentially the

18 persecution count runs from November 1991 through March

19 31 of 1994.

20 It is our position, as stated when the issues

21 come up, that any evidence outside of the time frame be

22 ruled inadmissible. We will continue to point that out

23 to the Court, but I thought this chart might be

24 somewhat useful. If not, or it's not graphically

25 clear, it's my fault. We will continue, of course, to

1 alert the Court when evidence as such comes in, but

2 because the Prosecution has styled its indictment with

3 regard to time frame differently, it's a little

4 difficult to track. It's therefore incumbent on all of

5 us to understand whether evidence is coming in pursuant

6 to the all-encompassing persecution theory, in which

7 case anything from November '91 to March of '94 is fair

8 game. Or, alternatively, it's a more precise kind of

9 evidence. The wilful killings, murder causing serious

10 injury, counts 7 through 13 having a much more

11 constrained time frame.

12 We don't want to burden the record in the

13 middle of the evidence of a witness with these

14 continuing issues, so I thought I would bring this to

15 the Court's attention at this point in time.

16 JUDGE MAY: Yes. Well, that looks helpful.

17 We will have in mind this document and we'll obviously

18 look at the evidence accordingly. But, of course, if

19 the Defence want to make an objection, they must be

20 entitled to do so, particularly if it's an objection on

21 grounds of lack of relevance.

22 MR. STEIN: Yes, Judge. And what I had hoped

23 was to persuade the Court that we have what's called a

24 standing objection. That's an United States term. For

25 evidence outside the time frame of the indictment. So

1 that we need not burden the Court each and every time.

2 On the other hand, I like to think that our

3 objections assist the Court in alerting the Court to

4 the issues as we see them. So I am not trying to

5 obviate our responsibility and just we are going to sit

6 like potted palms. On the other hand, I would like to

7 alert the Court to this issue and have a standing

8 objection to any purported evidence outside the time

9 frame of the indictment.

10 JUDGE ROBINSON: Yes. I don't like the

11 concept of a standing objection. I think the objection

12 should be taken individually in relation to a

13 particular point because the fact that there is

14 evidence outside the time frame doesn't necessarily

15 mean that it's irrelevant, but that I can see that a

16 question of relevance will arise. There could also be

17 a question of prejudice. But I think that it would be

18 more useful to take it as it arises.

19 MR. STEIN: And I understood that and

20 anticipate that different judges react differently to

21 the suggestion. I thought I'd at least hand it up to

22 the Court. We enjoy having our objections overruled.

23 We enjoy being the losers from time to time, but we

24 enjoy making them when we have to make them.

25 Moving along up the ladder is the issue of

1 hearsay. I understand, because I have seen the record,

2 the issue, the Tadic issue, that hearsay is not of

3 itself inadmissible.

4 I would just like to say this once so we

5 won't have to say it at all. The use of hearsay,

6 third, fourth hand, not only is unreliable, but it

7 makes it impossible for us to recreate the event and

8 challenge the event that's being discussed. It's

9 impossible, often, because the identity of the ultimate

10 declarant is hidden. The Court, of course, is not

11 insensitive to that.

12 Last, but not least, it has the reality

13 effect of shifting both the burden of proof and the

14 burden of presumption to us, because once hearsay is on

15 the record, then it becomes for us at the close of the

16 evidence to point out under the rules exactly where we

17 think the hearsay that has been admitted should be

18 deemed unreliable and not put in your judgement. And

19 it makes our investigation into the facts more

20 difficult when we are tracing down hearsay that is

21 third, fourth hand.

22 The issue, of course, needs to be resolved

23 each and every time it comes up, but having said what I

24 have to say, I hope the Court will have in its mind

25 these difficult issues for the Defence when hearsay,

1 which the Court usually spots before we make an

2 objection, or in conjunction with our objection, has to

3 rule on this difficult issue.

4 I understand that as a general matter hearsay

5 is not inadmissible and the Court specifically makes

6 rulings as to when it is. We are just trying to

7 persuade the Court again, and in this fashion, when we

8 have a little time, as opposed to making a speech each

9 time, to think about the difficulty and the practical

10 reality shifting of production and proof that the

11 admissibility of hearsay results in.

12 Last, but not least, and most important to

13 us, there have been several exchanges between Your

14 Honour and counsel with regard to cross-examination

15 that is trying to illicit crimes committed by Muslims

16 against Croats, or Serbs for that matter, against

17 Croats. And Your Honour has opined on a variety of

18 times the relevance.

19 I'd like to reply to that now because it's an

20 important part of our case. Crimes committed against

21 Croats, the whole side of the triangle, if you will,

22 goes mens rea, goes to motivation for acts, actions,

23 defensive or offensive position, and ultimately, and I

24 hope we never get here, goes to mitigation.

25 In summary fashion, what I am trying to say

1 is there is an entire milieu in which the actions in

2 the Lasva Valley occurred. The office of the

3 Prosecution would have you look at one part of the

4 triangle, the Croat part, saying there are offences

5 committed on all sides. Just look at the Croats.

6 That's all we are here to worry about. If you do that,

7 you will never see the entire triangle.

8 What I am trying to say --

9 JUDGE BENNOUNA: [Interpretation] Mr. Stein,

10 as regards this question, very quickly. I think that

11 the objection that was raised is not to the murder

12 committed or other criminal acts that were committed

13 against the Croats as such, but rather the fact that

14 they have been covered as such and not in relation to

15 the indictment. Because from a legal point of view,

16 the fact that there were murders of Croats does not

17 justify murders committed by Croats of Muslims or

18 Serbs. Therefore, that was the point.

19 Now, you are telling us that that relates to

20 mens rea, the defensive or offensive positions, of

21 course, but we have to start from that point and move

22 toward the murders or other criminal acts that were

23 committed against Croats and not to deal with the

24 criminal acts committed against the Croats as such, in

25 and of themselves. We have to stay with the

1 indictment. If you make the relationship between the

2 criminal acts and the indictment, of course that's

3 clear and possible, because there is the questions of

4 legitimate defence and motivation, mens rea, et

5 cetera.

6 MR. STEIN: Perhaps it's my fault, and I am

7 trying to be clear. We are not justifying actions. We

8 did this because they did that. That is not my point.

9 What I am saying is the context in which the acts

10 occurred, while not justification for the act, and

11 again our position generally on these things is that

12 Mr. Kordic had nothing to do with it, but that the acts

13 occurred in a milieu. And you can only understand what

14 happened in the valley if you understand the milieu.

15 The question, of course, is how far into that we get.

16 Mr. Nice, in fact, opened this issue in his

17 opening at page 74, where he raised for the record the

18 question of whether the Croat complaints about the

19 behaviour of the Bosniaks and the Mujahedins were

20 "genuine and well founded or was a smoke screen."

21 So the Prosecutor's themselves have kicked

22 off, if you will, the issue, if nothing else, to set it

23 up to put it down. The statutes, of course, of the

24 Tribunal require you to look at the wilful actions of

25 the accused, whether the circumstances under which he

1 acted were unjustifiable. There is an issue of

2 military necessity. But most important, and I don't

3 think this is apparent initially until I read it

4 yesterday, the exculpatory nature of the evidence that

5 we are trying to get in goes to not only exculpation

6 but as to sentencing under Rule 101(B), (ii) and

7 (iii).

8 101(B), (ii) and (iii) incorporate by

9 reference the concept of mitigating circumstances as

10 well as the general practice regarding prison sentences

11 in the courts of the former Yugoslavia.

12 Under Article 56, paragraph 2 of the Croatian

13 Criminal Code, and I'll quote briefly:

14 "All the circumstances which result in a less

15 or more serious punishment for the perpetrator of a

16 criminal offence, the motives for committing the

17 criminal offence, the circumstances under which the

18 criminal offence was committed, the conditions in which

19 the perpetrator had lived prior to committing the

20 offence, as well as the totality of social and personal

21 grounds which contributed to the perpetration of the

22 offence --" shall be considered.

23 And I want to be clear. I've quoted from

24 that skipping along. I mean, I haven't quoted the

25 whole paragraph. That's again Article 56, part 2.

1 JUDGE ROBINSON: In my view, Mr. Stein, the

2 issue's a very difficult legal one jurisprudentially.

3 It's not fully settled. The statute of the

4 International Criminal Court does provide for

5 self-defence to be raised as a defence, but in

6 determining the extent to which is legitimate as a

7 defence, the whole question of proportionality is

8 exceedingly important.

9 So for my own purposes I've always considered

10 it relevant, particularly when it is raised in a

11 context of defence, as a defensive strategy, but I

12 think ultimately the question of proportionality will

13 be very, very significant. But I think it's an

14 important legal issue.

15 MR. STEIN: Thank you, Judge. And that, of

16 course, goes to how you view these things. And I can't

17 do them in an abstract. I was not the scholar I would

18 like to have been at law school. The abstract is

19 difficult, the specifics in which they are raised are

20 better. But I wanted to take advantage of the time

21 that we have today without a witness present to at

22 least put this on the record fully and completely.

23 The other thing that's important from our

24 perspective and you --

25 JUDGE BENNOUNA: [Interpretation] We agree.

1 We agree that we are not conducting a trial of certain

2 Muslims or Muslims milieu that are not included in the

3 indictment. Insofar as you agree with that, that's

4 fine. You must not pull us into things which could be

5 considered outside the subject. If you are within the

6 scope of the subject, then it's fine. I think that is

7 the position.

8 MR. STEIN: I am trying to do that and I hope

9 that is what everyone understands I am trying to say.

10 The only final thing I would like to say on that is

11 some of the witnesses who come before you present our

12 only chance to ask about these issues. Theoretically,

13 we can recall them and extend the trial, but much of

14 what our case is will be made through the

15 cross-examination of the witnesses. There will be no

16 other opportunity. I don't want to have to go through

17 the difficulties that my colleague has gone through in

18 retrieving these witnesses.

19 So that I ask when Your Honour rules on the

20 issues that come up that you consider these difficult

21 problems.

22 JUDGE MAY: The final point, I suppose, can

23 be dealt with in this way. You can, of course, deal

24 with it in cross-examination. That does have the

25 virtue of your not having to call any evidence about

1 it. But I anticipate that, at least for some of these

2 matters, you are going to call evidence, in which case

3 then it becomes rather less necessary to cross-examine.

4 MR. STEIN: Frankly, putting together the

5 defence case as I have been, that's one of the issues I

6 wanted to raise. I now sense the Court's attitude is

7 not to preclude me from doing all of this, as long as

8 it's within the parameters of the indictment with

9 reference to a specific defence recognised or at least

10 suggested by the statutes and of this Tribunal.

11 JUDGE MAY: Yes. I am not encouraging you to

12 call up large numbers of witnesses.

13 MR. STEIN: I will call -- Judge, I will take

14 that as a touchstone for our presentation.

15 JUDGE MAY: Let me -- well, we'll have to

16 deal with all of that in due course.

17 Let me go back to the matters that you

18 indicated made this sort of evidence admissible or made

19 it relevant, and see that I've got it right. You said

20 it was relevant to mens rea, motivation, and there was

21 a third point, which I think was litigation.

22 MR. STEIN: It was meant to be mitigation.

23 JUDGE MAY: Mitigation. That makes it very

24 different. And that, of course, is the sentencing

25 point.

1 MR. STEIN: Yes.

2 JUDGE MAY: I take the final point quite

3 clearly.

4 As far as the first two are concerned, mens

5 rea, what's the relevance of it, this sort of evidence

6 to mens rea?

7 MR. STEIN: Right. The statutes under which

8 we are operating each have a defined mens rea or an

9 implied mens rea, but they each have a mental aspect to

10 them. There is wilful conduct, unjustifiable conduct,

11 and other terms. The context in which the conduct

12 occurred is either wholly just one day the Croats

13 decided to do this, in which case the Prosecution has

14 its best situation, or it's in reaction to, perhaps an

15 overreaction, but nonetheless a reaction to some other

16 event.

17 It's never been my practice to lecture or to

18 suggest to the Court how to read the law. We will

19 certainly set out the law in our closing papers.

20 JUDGE MAY: Of course. Now, what I am asking

21 you to do is to apply your submissions to the law.

22 Then -- you haven't mentioned self-defence. Is that

23 part of your case?

24 MR. STEIN: In the context of what I am

25 saying, the answer is yes. Now, I want to be clear, we

1 are -- and we have to be fact specific and village

2 specific. Sometimes the answer is no. Sometimes the

3 answer is yes. So it depends very specifically about

4 where and when. And certainly the concept of

5 self-defence evolves over time as you march through,

6 from the times that the Muslims and Croats were

7 cooperating to the time that the coalitions broke

8 down.

9 JUDGE BENNOUNA: [Interpretation] Don't

10 forget, Mr. Stein, that when you speak about legitimate

11 defence, this is covered by individual responsibility.

12 We are not dealing with legitimate defence of a

13 collective community or country or region. We are

14 speaking about individual criminal responsibility, and

15 it's within that framework that legitimate defence can

16 be raised.

17 MR. STEIN: And we have individual as well as

18 command responsibility issues, and the mens rea for

19 each appears and will be argued to be different.

20 JUDGE MAY: And motivation?

21 MR. STEIN: That's right, sir. Again,

22 motivation. If one morning a group of Croats decided

23 to just start up and do something, that's a clearly

24 different issue than if a village is part of a military

25 campaign, it is in an essentially strategic area,

1 indeed the attack may have gone awry or there may have

2 been more consequential damages, collateral damages

3 than anticipated. Those are the kinds of issues.

4 Now, again, every time I stand up and talk

5 about this, I want to give the big caveat that our

6 client was not in charge of the military. But to some

7 extent, in order to understand the events that went on,

8 since the Prosecution is claiming he was part of the

9 military establishment, we have unfortunately been

10 forced to have this burden on our shoulders to give you

11 a clear explication of what went on.

12 JUDGE MAY: It may at some stage be helpful

13 if you indicate -- and of course we have in mind that

14 these are foundation issues, or background issues,

15 were-the-crimes-committed issues, not issues as to

16 whether your client or his co-accused was involved in

17 the crimes. But even with that in mind, it may be

18 helpful at some stage if we have a document from you in

19 response, perhaps, to the dossiers when they come, as

20 to what it is the Defence say in each case.

21 MR. STEIN: Glad to help out, and as long as

22 we have them in a reasonable period of time that we can

23 produce a response, and reasoned response.

24 JUDGE MAY: So there is no question of doing

25 that in any hurry, but when you are able to do it.

1 Yes. Now, we shall have to have a break in a

2 moment. Were there any other issues you wanted to

3 raise?

4 MR. STEIN: We have two other issues on my

5 plate. I'll defer to Mr. Sayers in a moment. The site

6 visit as well as the issues regarding --

7 JUDGE MAY: I think this may be a matter

8 which is better deal with in private session.

9 MR. STEIN: Agreed. The only other public

10 issue, that we can deal with whenever Your Honour

11 directs us, is exhibits and notes and diaries; again, a

12 recurring problem that comes up.

13 JUDGE MAY: Deal with those.

14 MR. STEIN: Very good.

15 We have been put on notice --

16 [Trial Chamber confers]

17 MR. STEIN: We can tell, when we read the

18 discovery material from the witness statement, that a

19 witness has a diary or attachments to the statement

20 itself to the Prosecutor. Immediately upon reading

21 such, we send a letter to the Prosecutor: "Can we see

22 the diary or the attachments or the contemporaneous

23 notes?"

24 We, I don't believe, save one instance, have

25 ever seen them before the witness testifies. The

1 witness comes on board with notes, a diary, and these

2 kinds of matters, referred to or not, to refresh or

3 not. But by the time we get done analysing the legal

4 issues as to whether or not we're entitled to see them,

5 we get them in the middle of the examination, problem

6 one; sometimes they're not in a language we speak,

7 problem two.

8 We are therefore requesting the Court that --

9 and suggest to the Prosecution -- that when such

10 diaries, notes, and things are patently apparent from

11 the witness statements and we ask our colleagues for

12 them, that we have them so we don't have to elongate

13 the trial fighting about them.

14 [Trial chamber confers]

15 MR. STEIN: Your Honour, before you rule, I

16 want to be clear. As to personal letters or

17 correspondence, we're not interested. As to documents

18 that have clearly been written to record events, and/or

19 handed to the Prosecution, or documents or notes or

20 attachments that are actually part of the statement

21 given to the Prosecution, we believe that these are

22 important. And certainly if the Prosecution has an

23 objection, they can tell us by way of a written

24 response. But we're not getting these things in time

25 to effectively use them and analyse them for your

1 inspection.

2 JUDGE MAY: Well, I think we've already dealt

3 with this, that clearly, if the Prosecutor has material

4 which should be disclosed from a witness, then they're

5 under a duty to disclose it. If, on the other hand, as

6 does seem to happen, the witness has a diary, which he

7 either brings with him or not -- if he doesn't bring it

8 with him, there's nothing anybody can do with it. If,

9 on the other hand, he does bring the diary and refers

10 to it in his examination, then it's in issue as to

11 whether you should be able to look at it or not. It

12 would partly depend on whether there is any private

13 matter; in most cases not.

14 I suspect that the difficulty is that the

15 Prosecution don't have sight of this or knowledge of it

16 until the witness comes.

17 Mr. Nice, is that broadly the position?

18 MR. NICE: That is indeed broadly the

19 position. Wherever material is available and is

20 effectively part of the statement, we serve it.

21 Wherever there is a request made by the Defence for a

22 diary or similar document that is apparently identified

23 in the statement, we convey the request to the witness,

24 as soon as we get the request from the Defence, and

25 respond in accordance with what the witness tells us.

1 Wherever a witness turns up with his diary, we ask if

2 he wishes to refer to it and if he wishes to make it

3 available to us.

4 I think that's the appropriate regime for us

5 to continue. But I have no desire to keep material

6 back and every desire to make material available

7 because it accelerates the process.

8 JUDGE MAY: I think we have the point.

9 MR. STEIN: Very good, sir.

10 JUDGE MAY: Now, is there anything else in

11 open session that anybody wants to raise?

12 MR. STEIN: I think the rest should be in

13 closed session, if Your Honour so chooses.

14 JUDGE MAY: Provided it's not a lengthy

15 matter, we'll deal with it before the break.

16 Very well. Go into closed session.

17 [Closed session]

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17 --- Whereupon the hearing adjourned at

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