1 Friday, 20 January 2006

2 [Open session]

3 [The accused entered court]

4 [The witness entered court]

5 --- Upon commencing at 2.25 p.m.

6 JUDGE ORIE: Good afternoon to everyone.

7 Mr. Registrar, would you please call the case.

8 THE REGISTRAR: Good afternoon, Your Honours. This is case number

9 IT-00-39-T, the Prosecutor versus Momcilo Krajisnik. Thank you.

10 JUDGE ORIE: Yes. Thank you.

11 Mr. Josse, we are in open session at this moment, but we had not

12 finished perhaps with the portion that should be dealt with in closed

13 session, rather?

14 MR. JOSSE: That's correct, Your Honour.

15 JUDGE ORIE: Then we turn into closed session.

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3 [Open session]

4 THE REGISTRAR: We are in open session, Your Honours.

5 JUDGE ORIE: Thank you, Mr. Registrar.

6 MR. JOSSE:

7 Q. Would you tell the Court the sort of memories that Serbs in

8 Kotor Varos had of the Second World War in 1992.

9 A. In the Second World War, Kotor Varos was under the Ustasha control

10 for quite a long time. Ustasha belonged to the independent state of

11 Croatia. And I have a problem with my headphones, I'm sorry.

12 A. It's okay now. Now I can hear the interpretation. It's okay.

13 Although I can hear my own voice in the headphones.

14 So they belonged to the fascist occupying force and for that

15 reason, even after the Second World War, Kotor Varos was punished by the

16 government because its developments started as late as the 1970s, not

17 before that. It was liberated only in 1944. Before that it was under the

18 occupation force. The people of the area under Mount Kozara, including

19 Kotor Varos, and especially the Serbian population and Jews there, were

20 taken to the Ustasha camp called Jasenovac. In that camp, several hundred

21 thousand Serbs, elderly people, women and children were killed. From the

22 moment when the HDZ was established there was a fear among the Serbian

23 population that something like that might repeat. The memories still were

24 there. There were still survivors of those atrocities who told stories

25 about that.

1 Q. Which was the first ethnic party to form in Kotor Varos?

2 A. I don't know about Kotor Varos, but in Bosnia and Herzegovina the

3 first party that was formed was either the SDA or the HDZ, and the SDS was

4 the last ethnic party to be formed. I don't know about Kotor Varos. I

5 don't know when those parties were established there.

6 MR. JOSSE: Could we go into closed session, please.

7 JUDGE ORIE: We'll turn into closed session.

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2 [Open session]

3 THE REGISTRAR: We are in open session, Your Honours.

4 JUDGE ORIE: Thank you, Mr. Registrar.

5 THE WITNESS: [Interpretation] Yugoslavia was a multi-ethnic state

6 in which there was room for all the people and people's and national

7 minorities, in my view. However, in some minds this was not the way they

8 saw things. When ethnically based parties were formed, an emphasis was

9 put only on those things which were of importance for a single people.

10 There were also some differences in geographical affiliation.

11 Muslims and Croats believed that if they stayed in Yugoslavia, that would

12 serve to create the greater Serbia. On the other hand, the Serbs in

13 Bosnia and Herzegovina thought that should Yugoslavia break up, that their

14 survival in the area would be at a risk and that they had all the right to

15 stay in Yugoslavia, in the joint state of Yugoslavia.

16 I had information that the president of the Assembly of the

17 Kotor Varos municipality had signed a declaration or a document by which

18 he agreed for Kotor Varos to be annexed to Herceg-Bosna. The Muslim

19 representatives, on the other hand, thought that Kotor Varos should belong

20 to the part where the Muslims formed the majority, which was the Travnik

21 region. We even had information that in light of the fact that this was a

22 mountainous area, that there were no roads, that they even offered

23 Kotor Varos to dig a tunnel that would connect it to Travnik. The Serbs

24 believed that the distance of 30 kilometres between that place and

25 Banja Luka and the fact that all the regional institutions that were of

1 importance for Kotor Varos were in Banja Luka, including the post, the

2 hospital, the electricity production, the university, the police, and that

3 there was no point in separating Kotor Varos from Banja Luka because Banja

4 Luka was its natural catchment area. So all the peoples teamed up with

5 their ethnically based parties that had won the highest support in the

6 1990 elections. The SDS was supported by the Serbs, the HDZ was supported

7 by the Croats, and the SDA was supported by the Muslims.

8 MR. JOSSE:

9 Q. And can you give any concrete examples of how tensions within the

10 municipality manifested themselves?

11 A. Sometime in May I decided to go to a rally that was supposed to

12 take place in the cinema hall. At that rally we were supposed to talk

13 about peace and the way to go on living together in the area of

14 Kotor Varos municipality.

15 Let me just say at this point that already in May there were

16 conflicts in some of the surrounding municipalities. I believe that

17 Kotor Varos had enough intelligent people who would make the most of its

18 heterogenous national and ethnic structure and thus avoid destruction,

19 that a way would be found for a life together because before that the

20 authorities functioned together and they were composed to the

21 representatives of the Serbs, Muslims, and Croats.

22 When I arrived at the scheduled time, I could see that everything

23 was in place for this rally to be transformed into a different kind of a

24 rally that would be taking place in the local stadium, in the local

25 hand-ball pitch that had stands. Several speakers took the floor, and

1 what impressed me most was the fact that this was not a public rally at

2 which anybody could present their views, but that instead of that a

3 certain display of power was to be -- was expected in terms of the number

4 of people that took part in the rally and the large number of people in

5 the audience were to be used to support the speakers and approve their

6 words. The people who spoke at the time were the president of the

7 Municipal Assembly, Mr. Ante Mandic, a Croat by ethnicity. I think that

8 his speech was rather tolerant, and if I can sum up his message in a

9 nutshell, that message was that Croats would sooner leave Kotor Varos than

10 wage a war, that the Croats did not want a war, that they were in favour

11 of a life together with the Muslims and the Croats, and that the Muslims

12 and the -- the Muslims and the Serbs, and the Muslims and the Serbs should

13 support that.

14 After him, Mr. Kerim Dizdar took the floor. At that time he was a

15 member of the Social Democratic Party which originated from the former

16 League of Communists of Yugoslavia. His speech was very constructive, and

17 he appealed to people to continue living together. He warned people about

18 the already existing conflicts in Bosnia-Herzegovina. He said that

19 Bosnia-Herzegovina was a very complex community and that if there was a

20 civil war, there -- the consequences might be disastrous.

21 The next speaker was Fikret Djikic who was the president of the

22 SDA for Kotor Varos at that moment. In a nutshell, his speech was a

23 speech that was interrupted every minute or so by applause and the

24 approval of the audience. I remember that this speech differed from the

25 previous way of address that politicians used at any other rally.

1 Although he did say that he spoke on behalf of the SDA and he started his

2 speech with -- by saying that his party was a democratic party in favour

3 of progress and development, he very often used words to the effect of

4 saying that Muslims were oppressed, that Muslims would not allow Serbs to

5 rule in Bosnia and Herzegovina, that Yugoslavia had had been turned into a

6 greater Serbia. He often quoted from the Koran. He mentioned Allah's

7 name, the sacred right, and similar expressions that I had not been used

8 to.

9 In essence, it seems to me that this was a message, and the

10 message was that Bosnia and Herzegovina would be an independent state in

11 which the Muslims would prevail because this was their state, there was no

12 other state for them but Bosnia and Herzegovina, and that the others

13 should accept that and that this was a precondition for peace.

14 When he tried to -- when the president of the SDS, Mr. Nedret

15 Mujkanovic, tried to take the floor, he was booed. And whatever he tried

16 to say, he couldn't. He wasn't allowed to talk, to speak. I expected

17 that this would be a meeting where everybody would be invited to speak,

18 especially those of us who played -- who had played a role in the

19 development of Kotor Varos, and we knew what should be done.

20 However, after this incident I left the rally. I went back home.

21 I took my wife and children on the same day, and I drove them to a village

22 some 15 or 20 kilometres away from Kotor Varos.

23 Q. I'm stopping you because you're moving on to a slightly different

24 issue.

25 JUDGE ORIE: Mr. Josse, could I nevertheless ask the witness,

1 could you locate that rally in time for us.

2 MR. JOSSE: The witness said it was in May.

3 Q. May of which year, please?

4 A. 1992. I think it was in May, the 20th of May, sometime in mid-May

5 1992.

6 Q. I want to ask you about an earlier event that you witnessed, and

7 that involves refugees fleeing from Western Slavonia.

8 JUDGE HANOTEAU: [Interpretation] Excuse me. Let's go back to the

9 rally of 1992. What motivated the organisation of this rally? Is -- was

10 it a habit or -- you know, does it usually happen that you had these kind

11 of rallies or was there a special reason for having this rally? Thank

12 you.

13 THE WITNESS: [Interpretation] I think that the representatives of

14 the three peoples, who up to that time comprised the authorities in power,

15 representatives of the SDS, the HDZ, and the SDA, agreed to hold this

16 rally in the cinema and to try to find a common solution for the crisis in

17 Kotor Varos.

18 MR. JOSSE:

19 Q. So I want to take you back and ask for what you saw of the

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24 (redacted)These were columns of

25 unfortunate people, mostly women, children, and the elderly. They were

1 most often riding on tractors or coming or riding in horse-carts. In some

2 cases they were also using trucks. In some instances, there were several

3 trailers being towed by one vehicle. You could tell that they had left

4 very quickly. It wasn't organised. It was raining at one point, and

5 their things were covered with nylon or some kind of tarpaulin. For me

6 this was something new. I didn't have the opportunity before to see such

7 columns. And since on one occasion I happened to be at a cafe. We tried

8 to talk with them to see what was going on, where they were coming from.

9 They said that they were from the area of Pakrac. And an attack had been

10 carried out on their villages the night before. They gathered up what

11 they were able to, and they left. Since they had relatives in the

12 Banja Luka area, mostly they went to those villages.

13 MR. JOSSE: Could we go into private -- closed session, please.

14 JUDGE ORIE: We turn into closed session.

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21 THE REGISTRAR: We are in open session, Your Honours.

22 JUDGE ORIE: Thank you, Mr. Registrar.

23 MR. JOSSE:

24 Q. Witness, you told us about the refugees from Slavonia. What was

25 the ethnicity of these refugees?

1 A. These were Serbia from the area of Western Slavonia, from Pakrac

2 more specifically.

3 Q. And how were these refugees received by the local population in

4 Kotor Varos?

5 A. On the way from Bosanska Gradiska to Banja Luka, the local

6 citizens would come out and offer food and refreshments. And in Kotor

7 Varos, a small group arrived there who had relatives there. And in the

8 beginning, it wasn't a problem to accommodate them and receive them.

9 However, they were accommodated in the homes of those people who had space

10 for that.

11 Later this did become a problem. In the spring of 1992 the number

12 began to increase suddenly, and units of the civilian protection were also

13 engaged as well as the Red Cross. Usually when they arrived there would

14 be reception centres from where they would then go to the families of

15 those who were able to put them up, and even people who didn't have any

16 relatives in Kotor Varos were accommodated in this way.

17 I would like to note that both Gradiska and Srbac as well as

18 Laktasi that happened to be on the same road in the direction of

19 Banja Luka were municipalities that were much more developed. So the

20 refugees preferred these municipalities because it was easier for them to

21 find accommodation there and to try to make a living. Kotor Varos before

22 the war was a very underdeveloped municipality. Out of the 106 --

23 actually, 109 municipalities in Bosnia and Herzegovina, it was 106th

24 ranking by its level of development, and everybody knew that, including

25 the refugees.

1 Q. I now want to take you back or forward to 1992, and you have told

2 us about the rally in May of that year. Did there come a time where

3 roadblocks became more apparent around the municipality?

4 A. Yes. In the Vrbanci local community, which is about four to five

5 kilometres from Kotor Varos, on the highway, Kotor Varos-Teslic-Doboj,

6 trees were being knocked down, and the road was cut off. This happened in

7 May. And that was when negotiations were held to lift the barricades,

8 since this was causing chaos in the traffic, since this was a very much

9 used road. The Serbs thought that this was a provocation. As far as I

10 know, sometime in the afternoon a delegation -- a joint delegation went

11 for negotiations, but I don't know the direct reason or the cause why

12 these trees, these poplar trees were knocked down and the barricades

13 erected. The -- but this was something that was done by Muslims from the

14 Vrbanci local commune.

15 Q. When and how did the war start in the municipality?

16 A. After this rally it was clear, more or less, that the Muslim side

17 was ready for war because this is something that they stated quite

18 confidently. The first combat broke out in June 1992. (redacted)

19 (redacted) And according to

20 information that was conveyed to me, on the Bajram holiday the Muslims,

21 according to intelligence that the Serbs had, were supposed to take over

22 power in Kotor Varos and practically annex that municipality to the

23 Travnik region. That is why approximately on the 11th of June the Serbs

24 took over the institutions, but there were no combat activities on that

25 day. As far as I can remember, there were no casualties, other than one

1 Serb who was killed in the village of Vasiljevici just above the Muslim

2 village of Vecici. One Serb was killed there, but that information was

3 something that we received on the next day because we are talking about a

4 rural area.

5 Two or three days later there was sporadic shooting and there were

6 clashes, but you could say that the real civil war began sometime at the

7 end of June, around the 26th of June. That was a couple of days before a

8 religious holiday. It was a Serb holiday called St. Vitus Day. That was

9 when a member of the police reserve forces was killed, a Serb, in front of

10 the house where they happened to be. The others with him were wounded.

11 After that there were clashes in that location, and then the clashes

12 spread to the whole Kotor Varos area.

13 MR. JOSSE: Could we go into closed session, please?

14 JUDGE ORIE: Yes turn into closed session.

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22 JUDGE ORIE: That's confirmed on my screen that we are.

23 THE REGISTRAR: We're in open session.

24 MR. JOSSE:

25 Q. So I want to ask you now, Witness, about the presence of the

1 2nd Battalion of the 22nd Infantry Brigade of the JNA on the territory of

2 Kotor Varos and how the Serbs viewed that.

3 A. The Serbs believed that the Yugoslav People's Army as well as the

4 Ministry of the Interior were in charge of looking after the safety of

5 citizens and the state. They trusted the JNA, particularly the JNA, when

6 this unit arrived in the territory of Kotor Varos. To a greater extent,

7 they were relieved of the worries that they had had before that, and the

8 main worry was that they might be exposed to different forms of torture,

9 that they would not be protected, given the fact that there were a lot of

10 members of that unit who hailed from the territory of Kotor Varos. This

11 unit thus became a regional unit that secured that area, and for the Serbs

12 it was a huge guarantee that they would be protected from any possible

13 attacks.

14 MR. JOSSE: Closed session, please.

15 JUDGE ORIE: We turn into closed session.

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21 [Open session]

22 THE REGISTRAR: We are in open session, Your Honours.

23 JUDGE ORIE: Thank you, Mr. Registrar.

24 Before I give an opportunity to Mr. Stewart to address the Court,

25 I'll deal with a few matters.

1 Mr. Harmon, I think the Chamber is still waiting for some more

2 background information on P1034, and we did not give any time limit to

3 you. Would one week do? It was this press agency --

4 MR. HARMON: Your Honour, I have the information available now. I

5 made it available to Mr. Josse earlier. I can give you background

6 information now, if you would like. I can give -- I can send it by e-mail

7 to your Legal Officer.

8 JUDGE ORIE: Yes. The problem is if it is sent by e-mail to the

9 Legal Officer of course it's not part of the proceedings, because e-mail

10 messages, although they sometimes serve as an informal channel of

11 communication.

12 But let's first ask Mr. Josse: Do you have -- you have received

13 this information --

14 MR. JOSSE: I have -- I have no objection to the Court being sent

15 the information that Mr. Harmon kindly sent.

16 JUDGE ORIE: Yes.

17 Could you then perhaps, Mr. Harmon, better than by e-mail just

18 file briefly the information you have so we that don't -- I take it that

19 it's already in writing or ...

20 MR. HARMON: Yes, Your Honour. I can do that at the next session,

21 if Your Honour please.

22 JUDGE ORIE: Yes, so that we have it and that we have this

23 additional information available.

24 MR. HARMON: Would you like it orally presented? I can do that.

25 Or would you like a written filing, Your Honour?

1 JUDGE ORIE: Written filing might be the most easiest.

2 MR. HARMON: Fine.

3 JUDGE ORIE: That's takes as little court time as possible.

4 Then we have another matter. I mentioned --

5 MR. JOSSE: Sorry, Your Honour, to interrupt. And then in terms

6 of argument of its admissibility, that will follow in due course, will it?

7 JUDGE ORIE: Yes. If there's -- yes. Because I understood you

8 quite well that you said there's no objection from our side to this

9 information being presented to the Court, which of course is not the same

10 as any objection to admission of the --

11 MR. JOSSE: Precisely.

12 JUDGE ORIE: No, no, I think I understood you well. Then I listed

13 quite a number of exhibits on which translations were now received. As

14 far as the exhibits are concerned, the list started with D75 and ended up

15 to -- ended at D111. Two days were given for objections. The Chamber

16 didn't receive any objections, so therefore they are admitted into

17 evidence.

18 The same for Prosecution exhibits, starting with P967, and the

19 list ending at P1007. Two days have expired. No objections were

20 received, so they're admitted into evidence.

21 Then finally I think the exhibits P1033 and 1035, where no

22 objections were raised, I never spoke the sacrosanct words that they are

23 admitted into evidence. So that's now corrected.

24 Mr. -- I think, as a matter of fact, I made a similar mistake in

25 respect of P1044, that was the last intercept, the witness was - and I'm

1 now talking about Mr. Kapetina was confronted with. I never said it was

2 admitted into evidence. I asked for a number to be given. I heard no

3 objections. Then P1044 is admitted into evidence as well.

4 Mr. Stewart, you announced 15 minutes. I'm quite confident that

5 you could finish in 12.

6 Please proceed.

7 MR. STEWART: Your Honour, what I have to say this afternoon

8 really arises pretty much from the discussion that took place in court a

9 few days ago when I wasn't here when two especially important scheduling

10 procedural questions were raised. One was the question of when

11 Mr. Krajisnik might give his own evidence; the other, less important but

12 nevertheless important was to know exactly -- the Trial Chamber's wanting

13 to know exactly where we stood in relation to expert evidence.

14 Your Honour, both those issues, but I'll particularly deal with

15 the evidence of Mr. Krajisnik at the moment, had led on to the e-mail

16 which I sent to the Trial Chamber early today and copied to the

17 Prosecution and to this request to address the Trial Chamber.

18 Your Honour, as things are proceeding and have been proceeding,

19 five days a week and we bring a series of witnesses, it has become

20 increasingly apparent to the Defence team that there's no practical chance

21 of having Mr. Krajisnik adequately ready to give evidence, even by the

22 more recent target that we indicated of the 20th of February. It's simply

23 not realistic. We have to consider what is in the interests of

24 Mr. Krajisnik by way of presentation of the Defence case, operating within

25 the framework indicated by the Trial Chamber. And I wish to make it

1 clear, Your Honour, that we do - and the e-mail indicated that - we do

2 operate on the basis that we plan the presentation of the Defence case to

3 be complete by the currently directed date of the 28th of April, with the

4 important reservation which we must make and are fully entitled to make,

5 that that cannot be set in stone and that's something the Trial Chamber

6 has consistently indicated, that if the circumstances justify, then any

7 later application to extend the presentation of the Defence case for any

8 reason will then have to be justified on its merits. It will have to be

9 considered by the Trial Chamber in the circumstances at the time of the

10 application, and the test will be whether the interests of justice lead to

11 the conclusion that the application should be granted or not. But

12 that's -- that's, if you like, hypothetical. That's in the future. If

13 and when it arises is a matter which would need to be dealt with.

14 But I do wish to assure Your Honour that the planning will be

15 directed with that reservation to that date.

16 The -- what the Defence would therefore propose to do within what

17 we have always understood was the Trial Chamber's approach that it was --

18 the important thing for the Trial Chamber was to finish the trial by that

19 date, extended some time ago to the 28th of April. That within that there

20 was a high degree of flexibility for the Defence in how it should present

21 its case because the ultimate result would be satisfactory.

22 The position at the moment, Your Honour, is that if we devote for

23 practical purposes the Defence resources to preparing Mr. Krajisnik's

24 evidence, then the target date of the 20th of February becomes at least

25 realistic. And Your Honours may appreciate that on that basis there is,

1 in fact, a very clear incentive for the Defence and for Mr. Krajisnik in

2 his interests to bring his evidence on as quickly as possible.

3 Now, if the Trial Chamber's had any suspicion at all that there

4 was any policy or any intention of in any way seeking to defer

5 Mr. Krajisnik's evidence, I can assure Your Honours unequivocally that has

6 never been so. Broadly speaking, it has never been in the interests of

7 the Defence to defer Mr. Krajisnik's evidence, and in fact it's not in

8 Mr. Krajisnik's interests and it's not in the interest of the Defence to

9 continue any longer than we absolutely have to. The most unsatisfactory

10 procedure of bringing a whole lot of witnesses along ahead of Mr.

11 Krajisnik's own evidence. That has never been our preference. It isn't

12 our preference now. We earnestly wish to have Mr. Krajisnik in the

13 witness box as soon as possible, but we equally earnestly wish not to put

14 him in the witness until we are satisfied that he is adequately prepared.

15 So, Your Honour, if there is a clear incentive for us to bring him

16 into the witness box as soon as possible, because the sooner we --

17 consistent with that, because the sooner we bring him into the witness

18 box, other things being equal, the sooner he will be out at the other end

19 and the more time we will have then left after Mr. Krajisnik's evidence to

20 call evidence between then and the 28th of April.

21 But, Your Honour, the way the proceeding -- we have tried it. In

22 a sense it's been an experiment for us as well. We feel uncomfortable

23 about too much experimentation in the course of a trial of this gravity

24 against Mr. Krajisnik on these charges. But it is in the nature of

25 experimentation. It's been, if you like, in technical terms a successful

1 experiment. What it's done is demonstrate that this will not work for

2 Mr. Krajisnik and it will not work for the Defence. We simply are not

3 able to sustain the presentation of evidence in the way that we have or

4 anything like the way that we have done so far and get Mr. Krajisnik

5 ready.

6 An obvious problem, Your Honour, leaving aside the Defence team

7 itself, an obvious problem, Your Honour, is that for Mr. Krajisnik to be

8 in court is a seven-hour round trip from the UNDU to court and back again

9 and then he has been in court for a day. It is simply impossible to make

10 satisfactory progress.

11 Your Honour, we have two witnesses currently in The Hague. And we

12 would propose they are in The Hague. We would propose to finish those

13 witnesses. But, Your Honour, subject to finishing those witnesses that

14 are in The Hague because it would seem to be inappropriate to send them

15 back now without presenting their evidence to the Court. Our plan, with

16 respect, would be then to switch our resources for practical purposes

17 completely, subject to other essential tasks that we have to do, to

18 bringing Mr. Krajisnik's evidence before the Court as soon as possible.

19 It's going to, as we go along, Your Honour, we have to assess when that

20 is, because it's not easy for us at the moment to form an absolutely clear

21 assessment of when that might be.

22 So far as expert evidence is concerned, Your Honour, I -- before

23 coming to the Court with this information, in the course of the week we

24 considered that and come to the conclusion, we simply can't deal with

25 that, Your Honour. There is -- we simply do not have the capacity to

1 spend the time necessary to formulate even the application to the registry

2 which we would need to formulate in order to get funding for such expert

3 evidence as we consider we should we should require. We have spent time

4 on it to refine, as Your Honours have already seen. We have narrowed it

5 down. We did supply information, I think it was last week, indicating

6 areas where we would not seek expert evidence. We have narrowed it right

7 down to two areas.

8 Your Honour, what we would also propose to do as far as expert

9 evidence is concerned -- and I should say I make no bones about this, Your

10 Honour. I am and always have been throughout the case extremely skeptical

11 of the real value of expert evidence for the Defence case. So you're not

12 looking, and Mr. Josse -- Mr. Josse is in no different position. You

13 aren't looking at counsel who are inclined to bring on expert evidence

14 willy-nilly. We start from the position of rigorously seeing whether such

15 evidence is required, and we know in any case even if we didn't take that

16 approach through the registry to whom we have to apply for funding on

17 certain matters, they will certainly adopt that approach. And we --

18 JUDGE ORIE: Yes. Mr. Stewart, of course the Chamber is

19 interested to know when you could identify your experts and you told us

20 that you could not do it within the limits the Chamber had in mind. Could

21 you make any proposal?

22 MR. STEWART: Your Honour, with respect, we cannot find the time

23 to do that without -- it's a trade-off, Your Honour. We can further defer

24 the preparation or further hold up the preparation of Mr. Krajisnik's

25 evidence by devoting the really quite considerable time now, because we've

1 got a build-up of backlog of undone work that we simply haven't been able

2 to fit in. So we could -- I could, Your Honour -- I could switch to

3 dealing with expert evidence and I could spend several days on that, and I

4 could answer that question. But those days then would be taken way from

5 preparing Mr. Krajisnik's evidence.

6 Your Honour, the reality is that if we do devote our resources to

7 preparing Mr. Krajisnik's evidence, then the -- whether there is a need

8 and to what extent there is a need for expert evidence should become

9 clearer to us in the course of that work. Our hope, Your Honour, frankly,

10 is that we can come to the confident conclusion that there is no need for

11 expert evidence. We're not looking to bring experts along to the court,

12 but if they really are needed when we've looked at everything else, then

13 we will make that application, and we will keep the ambit of any expert

14 evidence as narrow as possible.

15 That's our approach, Your Honour. What we would ask not to be put

16 into the position that doing this to have to do premature, unnecessary

17 work or spend time on that which might turn out just not to have been

18 needed.

19 Your Honour, we wish to devote as top priority our very strained

20 resources to getting Mr. Krajisnik's evidence ready and such other

21 witnesses -- and obviously this will put us in the position as we are

22 anyway of focussing on those witnesses who really are the most significant

23 for our case.

24 And Your Honour knows -- I believe Mr. Josse has reported to

25 you -- well, I've seen this on the transcript. I have been working for

1 some time on the improvement and refinement of the list of witnesses

2 because we don't want any more than anybody else. We've not wanted to

3 continue with the enormously long list of witnesses with which we started

4 under the pressures last autumn. We wish to -- to cut it down as much as

5 possible for our working purposes as well. It doesn't serve our purpose

6 to have loads of witnesses there to constantly consider and reconsider.

7 We like to strike them off the list as far as we possibly can.

8 So that's where we -- that's where we are, Your Honour, and that's

9 really item two. The witnesses not being brought to The Hague is a

10 corollary of that approach to the matter, but we do -- and we feel

11 confident that Your Honours and the Prosecution, for that matter, would

12 take the same view. We really cannot keep deferring putting Mr. Krajisnik

13 in the witness box. But nor is it fair to Mr. Krajisnik to put him in the

14 witness box without adequate preparation. And there is an enormous amount

15 of ground to cover.

16 JUDGE ORIE: That's what you wanted to submit to the Chamber?

17 MR. STEWART: Yes, Your Honour, and I think I've come within the

18 12 minutes comfortably.

19 JUDGE ORIE: Yes. Mr. Harmon, any need to respond to that?

20 Taking into account what has been said in 12 minutes could have been said

21 in seven minutes. I grant you not more than four.

22 MR. HARMON: I will take less than four, Your Honour.

23 The issue that comes to my mind is that assuming there is a hiatus

24 in the time now that is anticipated from the conclusion of the second

25 witness on to and the result of the preparation of Mr. Krajisnik,

1 Mr. Stewart has said that he has worked diligently on refining and

2 narrowing the list of witnesses that we received.

3 My request, given that in the recent past we have received the

4 names of witnesses very, very well before 14 days are due, that if we

5 could receive during that hiatus a list -- a real list of witnesses the

6 Defence intends to call, it would assist us in our pre-trial -- our trial

7 preparations. It will make this case go much faster, assuming the Court

8 proceeds in the manner in which Mr. Stewart has suggested.

9 So my request is: One, that we receive within a very short period

10 of time the names and the identities of the persons intended to be called.

11 Surely some people must have made commitments to Mr. Stewart already and,

12 if possible, a list of -- a proper 65 ter in respect of them.

13 [Trial Chamber confers]

14 MR. HARMON: Your Honour --

15 JUDGE ORIE: Mr. Stewart --

16 MR. HARMON: Your Honour, just to correct the record. What I

17 meant to say, and I don't think I expressed myself clearly, shortly before

18 these witnesses are to be called, we're getting the identities of those

19 witnesses; that's what I intended to say. So my request is: Can we get

20 them long before? Thank you.

21 JUDGE ORIE: Yes. Even if there would be no summaries yet, that

22 at least the reduced list of names.

23 MR. HARMON: Correct, Your Honour. And they would be names that

24 would in all likelihood be people the Defence intended to call.

25 JUDGE ORIE: Yes.

1 Mr. Stewart, there's a clear request. I didn't hear -- apart from

2 this clear request, which seems to be the expression of the Prosecution

3 to -- not to unnecessarily fight now over all the formalities, but rather

4 see how they can operate in the present circumstances they're confronted

5 with in the best way. That list, even if -- if you would bring a list of

6 20 names that -- that everyone would understand that there's no firm

7 guarantee, that finally it would not be 18 or 17 or even 16, but those you

8 have in mind at least to call, could you produce that list in accordance

9 with the request of Mr. Harmon?

10 MR. STEWART: Your Honour, we don't see any difficulty with the --

11 well, with either the technical side or the spirit of the request made.

12 JUDGE ORIE: Yes.

13 MR. STEWART: We will respond to that. So that's entirely

14 reasonable.

15 JUDGE ORIE: Okay. And how much time would it take you

16 approximately?

17 MR. STEWART: Oh -- well, Your Honour, if we -- as I said, I could

18 give that to the Prosecution within seven days. That --

19 JUDGE ORIE: Yes, I see Mr. Harmon is nodding "yes."

20 And then the second question, you told us that the 20 of February

21 would not be easy under the present circumstances. Could you give us any

22 indication on how much time you would need for the preparation of

23 Mr. Krajisnik before his testimony starts?

24 MR. STEWART: Well, Your Honour, perhaps I -- did I express myself

25 possibly in classic English understatement, whether I said the 20th of

1 February would not be easy, I thought that's maybe what I said -- but

2 anyway, what I intended to say was that if we had continued as we have

3 been, the 20th of February was out of the question. We were simply

4 getting nowhere near it.

5 Your Honour, the 20th of February, on the basis of what I've

6 indicated as the new Defence approach, if you like, the 20th of February

7 would still be the target date, but we have the clear incentive, Your

8 Honour, if we can bring that forward, we have an obvious incentive to do

9 it. But my present assessment is that it is going to be overambitious. I

10 have regard to the Defence resources, I have regard to Mr. Krajisnik and

11 how he is at the moment, and everybody's capacity to work.

12 JUDGE ORIE: Yes.

13 MR. STEWART: That's the realistic assessment, Your Honour.

14 JUDGE ORIE: Yes. It's still not very clear. I did understand

15 your words to be that the 20th of February was not without problems. Now

16 I hear you're saying that the 20th of February is still the target but

17 it's unrealistic --

18 MR. STEWART: No, sorry. Perhaps I'm not making myself clear, or

19 perhaps -- I believe I'm not making myself clear.

20 If we had continued the way we are we have been with witnesses,

21 day in day out, week in, week out, the 20th of February was -- had clearly

22 become unrealistic. We would not have been able to hit that date. If we

23 switch our resources in the way that I've indicated immediately, for

24 practical purposes, to the preparation of Mr. Krajisnik's evidence, the

25 20th of February becomes the realistic target. We have an incentive to

1 make it earlier if we possibly can. We have a clear disincentive to allow

2 it to drift because we're cutting in to the time that we will have left

3 after Mr. Krajisnik's evidence, subject to any further application. And,

4 Your Honour, we can see the difficulties that we might face in such an

5 application. We might have to face them, but we can see that. So taking

6 a realistic approach, that's the best I can do with that, Your Honour, at

7 the time.

8 JUDGE ORIE: Let me just see if I understood you well. I

9 understand you to say that if we had to go on with these witnesses, the

10 20th of February would not be possible. But if we change and if we start

11 now focussing on Mr. Krajisnik's testimony, then the target -- there's a

12 fair chance that this target would be met.

13 MR. STEWART: Yes, Your Honour. That I don't think is materially

14 different from what I've said.

15 JUDGE ORIE: Yes. Now, in an earlier stage this Chamber could I

16 say, more or less, desperately said: If you don't give us any schedule,

17 this is the time you've got and see that you manage to present your case

18 within those time limits. So therefore whether there's any change of your

19 present approach is something -- I'm not going to ask you what the present

20 approach exactly means, what it results in. I do understand and -- that

21 the Chamber more or less forced by a -- by an absence of information which

22 would give us a clear impression on how the case presentation would

23 develop at a certain moment said: Okay, you said you have not enough

24 time. This was initially the time that was given to the Defence. We give

25 you more, I think it was seven weeks, I don't know exactly --

1 MR. STEWART: It was seven weeks.

2 JUDGE ORIE: I beg your pardon?

3 MR. STEWART: It was seven weeks.

4 JUDGE ORIE: It was. Yes, that's fine.

5 Therefore, that still stands. We still have no clear schedule. I

6 now do understand that after the two witnesses that are already in

7 The Hague that you'll stop presenting any witnesses and that you'll head

8 for preparing Mr. Krajisnik for a -- for a start of his testimony on the

9 20th of February?

10 MR. STEWART: Well, that -- that's the target, Your Honour. I

11 don't -- I don't wish to change anything I've said or -- I've said -- I've

12 said what I have to say on that.

13 But, Your Honour, I'm here this afternoon in the spirit of

14 offering information, so in the sense, Your Honour, please ask. Because

15 so far as I can, I'm more than willing to -- within the proper limits of

16 what I can properly convey, I'm more than willing to answer any of Your

17 Honour's questions in relation to that.

18 This Defence team -- I know that sometimes Your Honour feels that

19 this Defence team is very combative, but, Your Honour, we always, always

20 tell the Court the truth. We always tell it the way it is. We don't tell

21 you everything because we don't have to because we're Defence, but please

22 ask, Your Honour, because we are in a spirit of open information and

23 communication about this.

24 JUDGE ORIE: Yes. No one ever suggested, at least not this

25 Chamber, that you are not providing us with truthful information. Let me

1 just consult on this.

2 MR. STEWART: No, that's right, Your Honour, they haven't.

3 [Trial Chamber confers]

4 JUDGE ORIE: A few short questions, Mr. Stewart.

5 Let's just assume at this moment that you'll finish the two

6 witnesses available, that you are working on the basis of a target to

7 start on the 20th of February with the testimony of Mr. Krajisnik. Could

8 you give us any indication on how much time -- because I think earlier it

9 was -- I don't remember exactly that number, but there were a lot of

10 hours. Could you give us any indication on how much time the

11 examination-in-chief of Mr. Krajisnik would take, approximately?

12 MR. STEWART: Well, I -- Your Honour, I don't have any solid basis

13 on which to depart from the estimate given, save to say this, that if we

14 do -- essentially, this means practically tripling or quadrupling the

15 resources devoted to Mr. Krajisnik's preparation of evidence, because I'm

16 not going to be on my own on that, and I'm now going to have the whole

17 team working with me, so it should make a significant difference.

18 Your Honour, what we're going to try to do, we're going to try to

19 make as much use of 89(F) as we can to cover what, we hope,

20 non-controversial ground or ground that can simply be presented quickly

21 enough in that way, with the intention that that will, if all goes well,

22 make quite a significant in-road into that estimate. If we were to

23 present all of his evidence more or less completely orally, then, as I

24 said, currently I don't have any basis on which significantly to change

25 that estimate. But part of this process will be to try to achieve that.

1 And I can certainly see in the course of the preparation, of course I can

2 see chunks of material which are suitable candidates for 89(F). And we

3 should now -- under this arrangement, we should be able to get people in

4 the team to put it together in a proper form. So we can do that.

5 JUDGE ORIE: Then do you have any approximate idea on how long

6 your list of witnesses would be, starting from the point where

7 Mr. Krajisnik has given his evidence?

8 MR. STEWART: Well, the -- just to recap, the original list was, I

9 think, a little bit over 200. Your Honour, I certainly want to bring it

10 down very rapidly to under a hundred, and from that, Your Honour -- well,

11 circumstances will force selections on us anyway. The Prosecution have

12 had that experience, and so we will. The idea that you can just ring up a

13 witness and say: Be here tomorrow, we know that that's a bit unrealistic.

14 So, Your Honour, I hope that gives enough guidance. But we are not

15 thinking in terms of 70 viva voce witnesses coming before the Court.

16 I hope that's helpful, Your Honour. I will try to refine the

17 matter as we go along, and I would be more than willing to keep the Trial

18 Chamber and the Prosecution informed.

19 JUDGE ORIE: Do you mean more or less than 70? You're not

20 thinking in terms of 70 less --

21 MR. STEWART: Sorry, I'm not thinking of more than 70, Your

22 Honour. I'm not thinking more than 69 if Your Honour intends to be --

23 Yes, I apologise if there's any ambiguity there, Your Honour.

24 JUDGE ORIE: Yes.

25 [Trial Chamber confers]

1 JUDGE ORIE: We have no further questions for you.

2 Mr. Harmon, you are about to be on your feet.

3 [Prosecution counsel confer]

4 MR. HARMON: I listened with great interest to Mr. Stewart's

5 statement that he will make maximum use of 89(F) which involves the use of

6 statements. We don't have any such statements, and I would like to

7 inquire -- in fact, I would like to have copies of those statements before

8 they're used.

9 JUDGE ORIE: Yes, but may I be very practical. I take it that

10 they're being prepared and not available yet?

11 MR. STEWART: Your Honour, there's just a misunderstanding. Your

12 Honour has it a hundred per cent right there. We don't have anything to

13 hand over. I thought I said --

14 JUDGE ORIE: That will not take away the concerns of Mr. Harmon

15 but it at least clarifies the present situation.

16 MR. STEWART: I can reassure him on those concerns, Your Honour.

17 I thought it was implicit, but I will make it explicit, that if we are

18 going to use the 89(F) procedure what we will try to do is we will try to

19 produce chunks of the appropriate evidence of Mr. Krajisnik, chunks of it

20 in a written statement form. We may even, just to give Mr. Harmon a

21 little bit of advance notice, we make invite agreement of some of it. So

22 if Mr. Harmon can just equip himself, please, and his team to respond to a

23 suggestion that he might notify us if we do serve on him a statement

24 relating to parts of Mr. Krajisnik's evidence, we might like to have

25 agreement of it.

1 JUDGE ORIE: I leave that to further communication between the

2 parties.

3 Anything further?

4 MR. HARMON: No. Thank you, very much.

5 JUDGE ORIE: Thank you very much for your information,

6 Mr. Stewart.

7 I must say, you said that you always truthfully and honestly

8 inform the Chamber. Let me return your honesty by saying that when you're

9 speaking and looking at the whole of this, there is a story that came

10 twice in my mind, that's the story of someone who is in a balloon and who

11 lost track of where he actually is and then shouts down to a person who is

12 standing on the ground: Could you tell me where I am? That person on the

13 ground says: You're in a balloon. Where the man in a balloon says: It

14 must be a lawyer. Whatever he says is true, but it doesn't assist me for

15 the full hundred per cent in resolving my problem.

16 That's my honesty that this story came twice my mind during the

17 last half-hour.

18 Let's proceed. Let's turn again to the case against Mr. Krajisnik

19 because we would like to continue the -- to hear the testimony of the

20 witness.

21 MR. STEWART: Sorry, Your Honour, at risk of my contributing more

22 hot air to go into this balloon, I do have one point left, Your Honour.

23 JUDGE ORIE: Yes.

24 MR. STEWART: There is one witness in particular that we

25 nevertheless would wish to call before the target date of the 20th of

1 February. That's -- that applies to his availability in any case. He's

2 not available after that date, and we -- it's a one-day witness we think,

3 Your Honour. That's our estimate, one day altogether, could spill into a

4 second day. But I just mention that, Your Honour, so there would be a

5 witness and we could notify the Prosecution -- well, give them the proper

6 notice that, of course, they like.

7 JUDGE ORIE: Yes.

8 Then we'd like to continue to hear the evidence of the

9 witness D14. Is the public gallery empty? It is. The technicians are

10 instructed while the witness is entering the courtroom to take care that

11 he cannot be seen on the screen.

12 And, Mr. Josse, do we have to return in closed session or could we

13 continue in open session with the protective measures, face and voice

14 distortion and pseudonym?

15 MR. JOSSE: Closed session.

16 JUDGE ORIE: Closed session. Yes.

17 Then we turn into closed session, and Madam Usher is invited to

18 escort the witness into the courtroom.

19 [Closed session]

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2 --- Whereupon the hearing adjourned at 7.00 p.m.,

3 to be reconvened on Monday, the 23rd day of

4 January, 2006, at 9.00 a.m.

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