970515ED

Page 2809

1 Thursday, 15th May 1997

2 (10.00 am)

3 Discussion on Motions

4 JUDGE KARIBI WHYTE: Good morning, ladies and gentlemen.

5 We have some motions to deal with. The first one is on

6 the request for exculpatory information, which I think

7 is filed by counsel for Mr Delic on 1st April. I think

8 Mr Moran will speak to that issue.

9 MR. MORAN: Yes, your Honour.

10 MR. OSTBERG: Your Honour, before that may I introduce a new

11 member of our team today, who is going to speak for the

12 prosecution on this issue. This is Mr Rod Dixon, who

13 is an international law expert in the Office of the

14 Prosecutor. He will take care of the arguments in this

15 case. Thank you, your Honour.

16 JUDGE KARIBI WHYTE: Okay. Mr Dixon is welcome to the

17 team. Can we have appearances on this motion?

18 MR. OSTBERG: Thank you, your Honour. I am Eric Ostberg.

19 I appear today with Mr Giuliano Turone, Ms. Teresa

20 McHenry, Ms. Elles van Dusschoten and Mr. Rod Dixon, who

21 I just introduced. Thank you.

22 JUDGE KARIBI WHYTE: I know Mr. Moran is for this motion.

23 MR. MORAN: Yes, your Honour. May I proceed.

24 JUDGE KARIBI WHYTE: Yes, you can.

25 MR. MORAN: Thank you, judge. This is pretty

Page 2810

1 straightforward stuff. In the opening statement

2 Mr. Ostberg stood up and said he was going to prove that

3 some or all of these people were prisoners of war under

4 the Geneva Convention related to prisoners of war.

5 Twice in written submissions to the Trial Chamber, in

6 their pre-trial Memorandum and again in their response

7 to pre-trial Memorandum filed in April the Prosecutor

8 again said that they were going to make them prisoners

9 of war under Geneva Convention 3 from 1949.

10 Basically what I am asking for is evidence in the

11 possession of the Prosecutor to negate that, to negate

12 that these people are prisoners of war for purposes of

13 the Geneva Convention 3, specifically Article 4 of

14 Geneva Convention 3. That sets out basically six

15 classes of people who are entitled to POW status. The

16 first one is members of a regular armed force. There

17 has been absolutely no evidence presented at this trial

18 that would even lead one to be able to draw an inference

19 on -- an inference that these people were members of

20 somebody's regular armed force.

21 The second group is militias, volunteer corps,

22 organised resistance movements. There is some evidence

23 that one can draw inference that those people -- some or

24 all of these people were trying to form some sort of a

25 partisan organisation or some sort of a resistance

Page 2811

1 group.

2 The third category is regular armed forces

3 possessing an allegiance to a government that is not

4 recognised by the detaining power. That is the Free

5 French from World War II. There is no evidence of

6 that.

7 The fourth category is military contract or

8 civilian aircrew, things like that. They do not meet

9 that category.

10 Fifth category is crews of merchant vessels.

11 Again there is no evidence of that.

12 Six is the levy en masse. I do not believe there

13 has been any evidence these people can meet the criteria

14 of a levy en masse for a very specific reason. These

15 people, according to the Tadic Decision handed down last

16 week and I believe in the Tadic appellate decision, are

17 all citizens of Bosnia-Herzegovina. The territory was

18 Bosnia-Herzegovina. I do not think you can have a levy

19 en masse in your own country.

20 So that leaves category 2, which is the resistance

21 partisan definition. They have to meet four

22 requirements, the resistance organisation, not the

23 individual people. The organisation that they are part

24 of has to meet four criteria: they have to be commanded

25 by a person responsible for their subordinates; that is

Page 2812

1 command responsibility. That goes all the way back to

2 The Hague Convention of, what, 1898. Secondly, they

3 have to have a fixed, distinctive sign recognisable at a

4 distance. Third, they have to carry their arms

5 openly. Fourth, they have to conduct their operations

6 in accordance with the laws and customs of war. That

7 is straight out of the Geneva Convention.

8 It is our position that if the prosecution

9 maintains that these people are POWs for purposes of

10 Geneva Convention 3, they have to prove these facts.

11 They have got to get them into one of these

12 categories. I do not think they can do it. They tell

13 you they can. I think that the Rules are clear. If

14 they have any evidence in their possession which negates

15 any of those criteria, we are entitled to have it.

16 I submit to you that the prosecution does have in its

17 possession substantial evidence to show that the Bosnian

18 Serb forces do not meet the requirements of Article 4 of

19 the Geneva Convention, specifically Subsection 2 or for

20 that matter subsection 6, which is the levy en masse as

21 it goes to various categories of the definition,

22 especially respecting laws and customs of war. I would

23 submit that they cannot stand in front of this Tribunal

24 with a straight face and say they do not have that

25 evidence.

Page 2813

1 In the Tadic Decision, which I quoted -- excuse me

2 -- Blaskic decision, which I quoted in my Memorandum --

3 it is the decision on production of discovery materials

4 from 27th January of this year -- the Tribunal set out a

5 three-part test on whether or not exculpatory

6 information should be turned over to the defence.

7 The first question is whether the material is in

8 the possession of the Prosecutor. Again, I think that,

9 given the indictments that have been handed down in

10 other cases, they cannot conceivably argue that there is

11 not evidence in the possession of the Prosecutor to

12 negate at least one of the elements of the definition of

13 prisoner of war as it would conceivably apply to the

14 people held in the Celebici camp.

15 The second thing is -- second part of the test is

16 whether the materials contain exculpatory evidence.

17 I submit to the Tribunal that evidence that the Serb

18 partisans as a group did not follow the laws and customs

19 of war would be exculpatory in that it would negate part

20 of the definition of prisoner of war in Article 4(2) of

21 the Geneva Convention on prisoners of war.

22 The third prong of the test is whether the

23 Prosecutor believes that the exculpatory evidence is

24 protected by Rule 66C. Rule 66C is, of course, the

25 confidentiality Rule. That is something that the

Page 2814

1 Prosecutor would have to plead and prove, that it would

2 prejudice further investigations or it may be contrary

3 to the public interest or the security interest. If

4 they rely on Rule 66C, they have to provide the

5 information to the Trial Chamber for in camera

6 inspection. I think it is pretty straightforward

7 stuff. I believe they have exculpatory information to

8 negate allegations that they have made orally and in

9 writing to the Trial Chamber. I want it. I want to

10 look at it. I want to be able to present it to the

11 Trial Chamber, if it becomes necessary. That is the

12 long and the short of our motion for exculpatory

13 evidence, your Honour.

14 JUDGE KARIBI WHYTE: You are sure they have such

15 documents?

16 MR. MORAN: Your Honour, if they do not have evidence --

17 JUDGE KARIBI WHYTE: Because you have not directed

18 attention to any particular exculpatory matter.

19 MR. MORAN: Your Honour, if the prosecution does not have

20 evidence that the Bosnian Serbs were violating the laws

21 and customs of war, the indictment that has been

22 returned and the Rule 61 on Karadzik is based on no

23 evidence and just run down the list of indictees.

24 I submit to the Trial Chamber that when the prosecution

25 sends an indictment over to the Trial Chamber or to a

Page 2815

1 judge of the court or the Tribunal for confirmation,

2 that they have evidence to support their allegations.

3 JUDGE KARIBI WHYTE: But you should know what evidence you

4 are seeking. You should not merely be fishing. It

5 should not be a roving one. You should know exactly

6 what they should turn over to you.

7 MR. MORAN: Your Honour, I think they should turn over to me

8 all the evidence they have which shows that the Bosnian

9 Serbs, partisans, did not follow the laws and customs of

10 war, that they did not bear arms openly, that they did

11 not have a commander responsible for his subordinates,

12 that they did not have a fixed, distinctive sign

13 recognisable at a distance. I have laid out what

14 I believe they have in my written submission to the

15 Trial Chamber, and I submit -- I have not been through

16 their files. I do not know what is there.

17 I believe that the prosecution is acting in good

18 faith in other cases, where they return indictments.

19 Mr. Ostberg stood in front of the Trial Chamber on the

20 first day of this trial in his opening statement and

21 said he is going to make them POWs. I do not think he

22 can but he says he is going to do it. The prosecution

23 said in their pre-trial Memorandum filed back in

24 February or March they were going to make some or all of

25 these people prisoners of war. I do not think they can

Page 2816

1 do it.

2 They said in their response to the pre-trial

3 Memorandum which was filed about five weeks in the

4 trial, they said it again. Yes, your Honour?

5 JUDGE JAN: In fact, the agreed witness of fact who

6 appeared before us, will you be cross-examining him

7 about his status at the time when he was taken to

8 Celebici camp? .

9 MR. MORAN: That is correct, your Honour.

10 JUDGE JAN: They all claim they were innocent citizens who

11 were nothing to do with the conflict and they were

12 without any reason detained in the camp.

13 MR. MORAN: Yes, your Honour.

14 JUDGE JAN: I think you are doing very well in this regard.

15 MR. MORAN: Thank you very much, judge. I appreciate that,

16 but again I am not the one that made these

17 allegations. I am not the one who has made the

18 submission three times to the Trial Chamber that they

19 can do it. If the Trial Chamber recalls, in my

20 pre-trial Memorandum I told you I did not think they

21 could. They came back after that was filed, after they

22 had a chance to read it and said they could and they

23 would. Well, if they are going to try it, if they

24 think they can, if they are telling you in good faith

25 they are going to do it, I am entitled to the

Page 2817

1 exculpatory information to show these people were not

2 POWs. That is what I am asking for.

3 JUDGE KARIBI WHYTE: Let us hear the defence of the

4 prosecution.

5 MR. DIXON: Thank you, your Honours. The prosecution

6 response to the defence's version and these submissions

7 is that this request should be denied for two main

8 reasons. Firstly, all evidence and information,

9 including exculpatory evidence, has been handed to the

10 defence by the Prosecutor's Office concerning the

11 Bosnian Serb forces that were operating in the Konjic

12 municipality, including those who were operating in and

13 around the Celebici area specifically. It is for the

14 Prosecutor to, on the basis of this evidence, prove that

15 the requirements of the Geneva Conventions and Article 2

16 have been met and to make the necessary legal arguments

17 in the course of this trial. We do not believe that

18 this is a matter which is the subject of this motion

19 which specifically requests exculpatory evidence.

20 Secondly, evidence and information relating to

21 other armed forces is totally irrelevant to the present

22 case. The defence have made no prima facie showing that

23 it is relevant to the present case, to the guilt of the

24 accused in this case, and it would be unreasonable in

25 the circumstances for the Prosecutor to have to make

Page 2818

1 this kind of information available to the defence.

2 The defence have stated that there are four

3 requirements that must be met for the armed force to be

4 a lawful armed force so that those persons who may have

5 been part of this armed force who were then detained in

6 the Celebici camp would be protected under Article 2 of

7 the Statute. The first one is that they must be

8 commanded by a person responsible for subordinates; the

9 second is that they must have a fixed, distinctive sign

10 recognisable at a distance; the third is that they must

11 carry arms openly; and the fourth is that they must

12 conduct the operations in accordance with the laws and

13 customs of war.

14 The defence is essentially requesting this

15 evidence if it negates any of these requirements on the

16 basis that if any of these requirements are not

17 established then Mr. Delic's guilt will be negated in

18 terms of the Article 2 charges of the statute.

19 The Prosecutor submits that we have given to the

20 defence all evidence and information, including

21 exculpatory evidence concerning the armed forces, that

22 certain persons in the Celebici camp might have been

23 part of. It is evident from this information that

24 these were irregular armed forces that were operating in

25 part of the Konjic municipality, which were broadly

Page 2819

1 linked to the regular armies of the Bosnian Serb Army,

2 the VRS, and the JNA, which later became the Yugoslav

3 Army.

4 We have no further evidence or information in our

5 possession or under our control concerning the armed

6 forces that were operating in the Konjic municipality.

7 We have handed everything to the defence under our

8 disclosure obligations under Rule 66A. We have gone

9 further than that and upon request under Rule 66B we

10 have handed all documents and objects material to the

11 preparation of the defence and which the Prosecutor will

12 rely on as evidence, or which were obtained from the

13 accused, and we have fulfilled all our obligations under

14 Rule 68. We have handed over all material under that

15 Rule in relation to the armed forces that were operating

16 in the Konjic municipality.

17 The defence have not in their written submissions

18 or in their oral submissions today made any prima facie

19 showing that the Prosecutor has any further evidence

20 concerning the Bosnian Serb armed forces which were

21 operating in the Konjic municipality in our possession

22 or control at the moment.

23 If the defence is requesting information about

24 other irregular armed forces operating in other parts

25 outside of the Konjic municipality of the Republic of

Page 2820

1 Bosnia and Herzegovina, or about the Bosnian Serb Army

2 itself, the VRS, or the JNA or VJ, we submit that such

3 information is totally irrelevant to the present case.

4 It in no way concerns the guilt of the accused under

5 Article 2 of the Statute, and it is our submission that

6 the defence have not shown that such evidence would be

7 relevant to the guilt of the accused in this case.

8 It is irrelevant in respect of the VRS, the JNA

9 and the VJ because these are regular armies. They are

10 widely acknowledged to be organised armies, with command

11 structures, with uniformed troops, which carry arms

12 openly, and even if they did commit violations of the

13 laws and customs of war, which we do not dispute as the

14 Office of the Prosecutor, this in no way would justify

15 persons in those armies losing their prisoner of war

16 status. The Geneva Conventions are quite explicit on

17 this point, that you retain your prisoner of war status,

18 even if you yourself commit violations or other people

19 commit violations if you are part of a regular army.

20 Secondly, in relation to information about other

21 irregular forces, this information is also totally

22 irrelevant to the guilt of the accused. We, as the

23 Prosecutor, are only required to show, we would submit,

24 that the irregular forces that the victims in the

25 Celebici camp might have been part of were forces that

Page 2821

1 met the requirements of the Geneva Conventions. We do

2 not have to show that all forces operating in other

3 areas that might have been irregular forces, that the

4 victims had nothing to do with, met the requirements of

5 the Geneva Conventions, only those irregular forces

6 within the municipality of Konjic that the victims may

7 have been part of in this particular case.

8 The defence have not demonstrated why any other

9 information is required, why it either affects the guilt

10 of the accused or the credibility of the prosecution

11 evidence, which are the requirements of Rule 68.

12 It would also be unreasonable, we would submit, to

13 expect the defence to have access to all the

14 Prosecutor's evidence in other cases and investigations

15 concerning any Bosnian Serb perpetrators, or Bosnian

16 Serb forces, or the Bosnian Serb Army, or the regular

17 Serb Army throughout the whole of the territory of the

18 former Yugoslavia from 1991 onwards, especially when

19 there is no clear purpose for receiving this information

20 and we are not obliged to do so, as we have argued under

21 the Rules.

22 The Prosecutor quite plainly fails to see the

23 point of the defence's request in this regard, and would

24 therefore request that it should be denied.

25 Just two final points before concluding, your

Page 2822

1 Honours. Firstly, it should be pointed out that

2 certain of the requirements which the defence mentioned

3 for armed forces to qualify as legal armed forces in

4 terms of the Geneva Conventions have, in fact, been

5 modified over time by international humanitarian law,

6 particularly in terms of the additional protocols which

7 came later in 1977.

8 It is no longer necessary to display a distinctive

9 sign. It is also no longer necessary to carry your

10 arms openly in all circumstances and, as I have

11 mentioned before, if you commit violations of the laws

12 and customs of war, this does not mean that you lose

13 your status as a prisoner of war, whether you are in a

14 regular or an irregular army. Of course, you can be

15 punished for these violations, but you do not lose your

16 protection to be treated humanely and not to have grave

17 breaches of the Geneva Conventions committed against

18 you.

19 Moreover, in terms of Article 2, in the present

20 case Article 2 is, in fact, we would submit, applicable

21 even if the persons were not prisoners of war. So,

22 even if the persons who the Prosecutor might argue

23 qualify as prisoners of war do not for some reason

24 qualify, so we fail to meet the requirements, then they

25 are still protected as civilians, and indeed we have

Page 2823

1 submitted that many people are purely protected as

2 civilians. But even if we attempted to show that some

3 were prisoners of war and then they did not end up being

4 prisoners of war, they are still protected as

5 civilians. The point of this is: even if we had some

6 information, arguably, that showed that the victims were

7 not prisoners of war, they would still be protected as

8 civilians under Article 2 of the Statute.

9 So in conclusion, your Honours, we submit that the

10 request should be denied, firstly because we have

11 complied with all of our obligations concerning the

12 forces in the Konjic municipality, and, secondly,

13 because any other information is totally irrelevant to

14 the guilt of the accused.

15 JUDGE JAN: May I say something? Under Rule 68 the

16 obligation of the Prosecutor is limited to the evidence

17 which is known to him. I think in this regard

18 Mr. Ostberg's statement that is all the exculpatory

19 evidence which is known to him should be sufficient

20 unless you can show that that statement is not

21 correct. Ordinarily it is the Prosecutor who can say

22 what is known to him or not.

23 MR. MORAN: Your Honour, I think that the prosecution is

24 drawing a very narrow and unrealistically narrow

25 definition of what is exculpatory and let me explain why

Page 2824

1 I believe this.

2 JUDGE JAN: I am putting the emphasis on the words "known

3 to him". He cannot supply to you what is not known to

4 him.

5 MR. MORAN: It is not what is known to Mr. Ostberg is the

6 test. The test is what is known to the Office of the

7 Prosecutor. Let us start with that. The question

8 then becomes what is relevant, what is exculpatory.

9 Even reading the Prosecutor's response to my

10 motion, I think we can both agree that you do not look

11 at this person to decide whether or not this person is a

12 prisoner of war under Geneva Convention 3. What you

13 look at is the larger picture, so that, for instance, if

14 I am a member of a partisan organisation that commits

15 war crimes on a regular basis, even if I do not commit

16 war crimes, I am not entitled to POW status. I may

17 have some other kind of status, but I am not entitled to

18 prisoner of war status.

19 Given Dr Calic's testimony about the All People's

20 Defence, which, as I recall, was testimony that the

21 Central Government in the former Yugoslavia set up this

22 military organisation throughout the country, basically

23 to carry on partisan war in case someone invaded, you

24 are looking at more than just in the Konjic area; you

25 are looking at a larger picture for the organisation

Page 2825

1 that these people were members of.

2 If, for instance, they have evidence that the SDS,

3 the Bosnian Serb political party, was arming,

4 controlling, dealing with these partisan groups, these

5 irregular groups, then it is part of that larger

6 picture, and the question is not whether Partisan Smith,

7 who lived in Bradina, was following the laws and customs

8 of war; it is did the organisation as a group follow the

9 laws and customs of war? Again, I do not think -- in

10 fact, given the two Tadic decisions, the Appellate

11 Chamber Decision and the Decision from the Trial Chamber

12 last week, the Judgment and Opinion on that, I do not

13 know how they can meet any of these requirements of

14 putting these people -- making these people protected

15 persons under Article 2 of the Statute or anywhere in

16 the Geneva Conventions.

17 They say they can. Maybe they have got evidence

18 out there that they can do it. If they think they can,

19 it is exculpatory for my client, exculpatory evidence to

20 be able to show that these people did not have prisoner

21 of war status.

22 Again I am not the person who made the allegation

23 that some or all of these people were prisoners of

24 war. Quite the contrary. From Day 1, in the very

25 first written submission I made to this Trial Chamber,

Page 2826

1 I said I did not think that they could do it. I am

2 taking the prosecution at its word that they have proof

3 that these people were prisoners of war, that Mr. Ostberg

4 and the Prosecution in their written submissions, their

5 oral submissions to the Trial Chamber were acting in

6 good faith, and taking their own pleadings -- their

7 response to my motion about looking at the larger

8 picture, I want the evidence of that larger picture to

9 show that these people were not prisoners of war.

10 The other easy solution is they can stand up right

11 now and stipulate they were not prisoners of war and I

12 will sit down and I am a happy person. They cannot

13 have it both ways, judge. They cannot have their cake

14 and eat it too.

15 JUDGE KARIBI WHYTE: Do I understand your argument is by

16 way of deduction now because they say these persons are

17 prisoners of war, and that material is what you rely on

18 as exculpatory and you want it to be turned over to

19 you?

20 MR. MORAN: Your Honour, what I am relying upon is this: the

21 prosecution has made certain factual and legal

22 representations to the Trial Chamber. I guess you can

23 say that is deduction. I would not stand here and tell

24 you that Mr. Ostberg and the rest of the prosecution

25 team, or for that matter the Office of the Prosecutor in

Page 2827

1 general, was not acting in good faith when they made

2 those factual and legal representations to the Trial

3 Chamber. I am presuming that they are going to be able

4 to do it.

5 As Judge Jan pointed out, they have not done it

6 yet, but they tell me that they are going to, they tell

7 you that they are going to. I think we have to take

8 them at their word. As you walk out the first floor of

9 this building, as you walk out those double doors, right

10 next to it by the Press Office there is a group of

11 hand-outs and it has most of the indictments that have

12 been presented by the Trial Chamber. Anybody can walk

13 by and just grab them and take a look at them -- excuse

14 me -- indictments presented by the Office of the

15 Prosecutor; the Trial Chamber obviously does not present

16 them. They are making the allegations both to this

17 Trial Chamber and the other Trial Chamber that there

18 were systematic violations of the laws and customs of

19 war by Bosnian Serbs, the people that I say are part of

20 this larger organisation.

21 JUDGE KARIBI WHYTE: Actually my real anxiety is I am still

22 what I would call in the wilderness about the arguments,

23 because, if your contention is correct, you are assuming

24 that they have exculpatory material which you should

25 have, and therefore they should turn them over to you,

Page 2828

1 but the ideal is that you should point out such

2 exculpatory materials which you think they have, not

3 necessarily they knowing what you think is exculpatory

4 material. You should tell them what those materials

5 are which you know they have, which they ought to turn

6 over to you.

7 MR. MORAN: Your Honour, since I do not have access to their

8 files, I cannot tell you what they have got that they

9 ought to give me. What I am saying is there are

10 classes of information that they say they have, either

11 directly or indirectly, by sending indictments over to

12 be confirmed by various members of the Tribunal.

13 JUDGE KARIBI WHYTE: You really do not know those

14 materials. You think there are materials or there are

15 likely to be materials which are exculpatory of your

16 client.

17 MR. MORAN: Again, your Honour, if the prosecution would let

18 me spend a couple of days reading through their files, I

19 am sure I could tell you exactly what they have got that

20 I want, but I do not think that that is -- that is not

21 very likely to occur.

22 JUDGE KARIBI WHYTE: This is my main problem, because if

23 you really know what those materials are, let them deny

24 it that they do not have it.

25 MR. MORAN: I want everything that they have got to show

Page 2829

1 that Bosnian Serb irregulars did not meet the criteria

2 of Article 4, the definition of prisoner of war, or, in

3 the alternative, as I say, I would be just as happy as

4 I could be if Mr. Ostberg stands up and stipulates that

5 these people were not prisoners of war. Either one

6 makes me happy.

7 JUDGE KARIBI WHYTE: Because when I read your motion,

8 I just myself did not even know what to think about

9 it. I was thinking about everything possible in the

10 argument as a whole, everything which they have which

11 leads to the determination whether these people are

12 prisoners of war or not. There might be a mass of

13 materials. That is a very difficult thing. That is

14 not a prima facie argument as to what you want from

15 them.

16 MR. MORAN: Well, first, I would ask the Trial Chamber to

17 take judicial notice of the records of the Tribunal in

18 each indictment and the confirmation of each indictment.

19 Let us start with that. That has been returned.

20 They put me between a rock and a hard place, that

21 I cannot tell you exactly what they have got. All I

22 can tell you is they have made representations to the

23 Tribunal that they have evidence, that these people did

24 not follow the laws and customs of war. I want that

25 portion of that evidence that they tell the Tribunal

Page 2830

1 they have got, not what they have told me they have,

2 that shows the larger organisation that Dr Calic talked

3 about and that these people do not meet the requirements

4 for prisoners of war under the Geneva Conventions.

5 They have got it, they have got the investigators,

6 they have got the access to Interpol, they have got the

7 access to the FBI, various governmental organisations.

8 I do not have that. They have got it. They have got

9 it in their files. You know they have got it in their

10 files. I know they have got it in their files.

11 Mr. Ostberg knows they have got it in their files. Or

12 in the alternative --

13 JUDGE JAN: There are two aspects of the questions you are

14 raising: first, what is known and, second, what you

15 should try to come and find out. I think their

16 obligation is limited to what is known to them. Whether

17 they are prisoners of war or not is a question of

18 interpretation of the evidence. You have been

19 cross-examining the witnesses to find out their

20 status. So when we have the entire evidence, we will

21 know whether they were prisoners of war or not. That

22 is a matter that can be taken up at the end of the trial

23 when the argument starts.

24 MR. MORAN: Your Honour, I think that if --

25 JUDGE JAN: You are doing very well in asking about their

Page 2831

1 status.

2 MR. MORAN: Thank you very much, judge. Again, I do not

3 want to get into a situation somewhere down the road

4 where somebody says: "So and so was a commander and we

5 all wore uniforms that had insignia on them. They

6 carried our AK47s for the whole world to see, and

7 I saluted as I walked by the Commander." I do not want

8 to have that pop up and then be coming back to the Trial

9 Chamber asking for a six or eight-week continuance,

10 adjournment, trying to get that information that I am

11 asking for.

12 Again I think that the Prosecutor is drawing an

13 awfully narrow view. I do not want to say they are

14 talking out of both sides of their face, but it is

15 coming close. Either they have got evidence people are

16 prisoners of war or they do not. If they do not, then

17 they do not and they ought to tell us all that. If

18 they do, then, if they have evidence showing that the

19 organisation as a group, the larger organisation -- they

20 are trying to narrow this down to the Konjic area. You

21 can read in their proceedings that you look at the

22 larger organisation. Then you can re-read Dr Calic's

23 report talking about how the whole country was set up.

24 JUDGE JAN: Dr Calic was merely giving an opinion, but

25 where you have witnesses, some of them have admitted

Page 2832

1 they were members of the SDS and others have not. They

2 all claimed they were civilians and had nothing to do

3 with the conflict and yet they were taken without any

4 reason to the Celebici camp and detained there. This

5 is the evidence we have so far got.

6 MR. MORAN: Yes, your Honour. I agree. I agree with you

7 totally that there is absolutely no evidence before this

8 Trial Chamber that these people are prisoners of war

9 under the Geneva Convention.

10 JUDGE JAN: That is a question of interpretation, whether

11 they have their status or not in the camp. We can

12 decide on that only after the entire evidence has been

13 recorded.

14 MR. MORAN: I understand that. At least in my opinion

15 there is zero evidence.

16 JUDGE JAN: You are quite right to make any contention in

17 support of your client.

18 MR. MORAN: Given that, the Office of the Prosecutor keeps

19 coming back to this Trial Chamber in writing and oral

20 submissions that they are going to prove it. They say

21 they have got evidence of it. They are making the

22 contention. I think it would be a whole lot easier if

23 Mr. Ostberg just stood up right now and said: "These

24 people were not prisoners of war under Geneva Convention

25 3." If he said that, I will withdraw the motion. I am

Page 2833

1 a happy man and we can go about the rest of our lives

2 and finish this trial --

3 JUDGE JAN: Before Christmas.

4 MR. MORAN: Which year, judge?

5 JUDGE JAN: Before Christmas.

6 MR. MORAN: Which Christmas, judge?

7 JUDGE JAN: 1997 Christmas.

8 MR. MORAN: My wife and child will appreciate that, if I am

9 home for Christmas. If they want to do that, that is

10 fine with me. I think they have put themselves on the

11 horns of a dilemma. They have made a legal allegation.

12 They have made a factual allegation. They have made

13 allegations to this Trial Chamber. I am basically

14 saying: "Put up or shut up. I want evidence that you

15 have got that shows that you are not -- that you cannot

16 make your case." If they want to stand up right now and

17 stipulate that nobody in the Celebici camp met the

18 criteria of being a prisoner of war under the Geneva

19 Convention related to prisoners of war, that ends the

20 matter, judge.

21 JUDGE KARIBI WHYTE: Actually, why are they here if they

22 come up to say that?

23 MR. MORAN: I do not know, judge.

24 JUDGE KARIBI WHYTE: That is why they have not said so.

25 MR. MORAN: I do not know if they have any evidence or we

Page 2834

1 have got anything anywhere or not.

2 JUDGE KARIBI WHYTE: The matter is still open.

3 MR. MORAN: That is true, judge, but as an open matter I do

4 not want to have to be asking for a massive adjournment.

5 JUDGE KARIBI WHYTE: I see your point. You keep pursuing

6 it.

7 MR. MORAN: Okay. Thank you, judge.

8 JUDGE KARIBI WHYTE: Do you have anything else to add?

9 MR. DIXON: Nothing further, your Honour.

10 JUDGE KARIBI WHYTE: We will deliver a Ruling later. It

11 is not a Ruling we can just ...

12 MR. MORAN: Thank you, your Honour.

13 JUDGE KARIBI WHYTE: Now the next motion is the one still

14 by Mr. Moran on the designated expert witness.

15 MR. MORAN: Actually I think that is an objection and I want

16 to apologise. I have notice that the cover left a word

17 out. That was read about 12 times. It just goes to

18 prove that big type is easy to misplace things on.

19 Again I think this is pretty straightforward

20 stuff. On January 25 the Trial Chamber issued an Order

21 which is attached to my objection. What it says is: if

22 you have an expert witness, you have to do certain

23 things. You have to do it by a certain time. If you

24 do not meet the deadline, then you can apply to the

25 Trial Chamber for good cause shown.

Page 2835

1 I have got a motion wandering around some place

2 asking to designate an expert witness out of time on

3 Bosnian nationality. That did not appear that it was

4 going to be an issue in the case. When it became an

5 issue in the case, I asked for an expert witness. We

6 do not have any objection to this witness testifying

7 right now about what he saw, so long as the testimony is

8 limited to what anyone could see without special

9 training and without special experience. The problem

10 is: from the materials that were given to us about this

11 witness, it appears that he is going to be testifying to

12 some great extent on things like -- I have forgotten --

13 has his profession been identified publicly?

14 MR. OSTBERG: Yes.

15 MR. MORAN: Okay. Things like medical diagnoses. Now

16 that requires special expertise. In fact, I think we

17 can all agree that medicine is as much an art as it is a

18 science and that a diagnosis of whatever it is relies to

19 some great extent not only on the training and

20 experience but also on opinion, and that goes right to

21 the heart of what is an expert witness.

22 The hypothetical I used in my objection was this:

23 in America in traffic accident cases we often have

24 engineers who are accident reconstruction people. They

25 are expert witnesses who can take -- the example I used

Page 2836

1 is skid marks -- they can measure skid marks and

2 estimate within a fairly narrow parameter how fast the

3 car was going when it hit the brakes, just based on the

4 length of the skid marks.

5 Now it is not expert testimony or opinion

6 testimony, I do not believe, to say that the skid marks

7 are 57.5 metres long. That is something that anybody

8 can go out with a tape measure and measure, but to say

9 that in turn based on that the vehicle that made those

10 skid marks was going -- pick a number -- 47 kms an hour,

11 that becomes expert testimony.

12 So the heart of my objection is this: if this

13 witness wants to come in and testify to the same kinds

14 of facts that I could testify to or that anyone out in

15 the audience could testify to -- another example in my

16 motion is the emergency room physician who says: "The

17 guy came in covered with blood." Anybody can testify to

18 that. That requires no expertise, no training, no

19 experience, no opinion. Then when you go much beyond

20 that on why this person was covered with blood, then you

21 start getting into the areas of expert witnesses,

22 opinion, diagnosis, things like that. So I am not

23 objecting to him getting on the stand and saying: "A man

24 came in and he looked skinny." I object to testimony

25 about diagnosis, and their written submissions -- it

Page 2837

1 appears to be diagnoses -- half of it is in Latin -- all

2 through this stuff. So if the Trial Chamber is clear

3 on the distinction I am drawing between expert testimony

4 and non-expert testimony -- I would like to have this

5 guy's resume. I designated an expert witness who is a

6 physician actually on the deadline date.

7 JUDGE JAN: For how long did you have a copy just of his

8 statement?

9 MR. MORAN: Judge, what we have is -- and there is some

10 dispute about that and we talked about it yesterday --

11 there was some --

12 JUDGE JAN: The English version was probably not delivered

13 to you earlier but you had his testimony in Serbo-Croat

14 for a long time now but you are raising an objection

15 now.

16 MR. MORAN: Yes, your Honour. For an expert witness there

17 are other things you want to do. I will give an

18 example from this case. The minute that Dr Calic was

19 designated as an expert witness, we ran her through a

20 bunch of computers to find out what she had written so

21 we would be prepared to cross-examine her.

22 JUDGE JAN: He is not entirely an expert witness. What he

23 saw is a question of fact. What he observed is a

24 question of fact. Then he gives his opinion. You have

25 had his testimony for a long time. Now you are

Page 2838

1 objecting that he should not be examined as an expert

2 witness. He was also a witness to the fact, as you

3 admitted, because what he saw on the body of a

4 particular person is a question of fact.

5 MR. MORAN: There is no question about it, judge. If he

6 says there was a scar on my left leg, that is a fact

7 question. If there is a scar on my left leg, you can

8 see it, I can see it, anybody out in the audience can

9 see it and testify to it. That is not expert

10 testimony. I am happy to have him testify to that.

11 I have no objection to that, but the minute he says that

12 that scar was caused --

13 JUDGE JAN: That is a purely technical point. He is a

14 witness and you have got the gist of his testimony.

15 Now to say he should not be examined as an expert, I do

16 not think that is on really. That is my personal

17 opinion.

18 MR. MORAN: Of course you know I respect your personal

19 opinion on that. I am making my objection.

20 JUDGE JAN: He is a witness all right. You have got the

21 gist of his testimony for a long time now with you.

22 MR. MORAN: So, judge, like I say, our objection is not --

23 again if you draw the distinction --

24 JUDGE KARIBI WHYTE: Actually you really do not want him to

25 testify as an expert?

Page 2839

1 MR. MORAN: That is right, your Honour. I want him to

2 testify as a fact witness, just like I would testify, if

3 heaven forbid that were to occur, or anyone in the

4 building would testify. As long as he does not get

5 into opinions and things involving special expertise,

6 then he is not an expert witness, he is a fact

7 witness. He has been properly designated as a fact

8 witness, and we can go from there.

9 JUDGE KARIBI WHYTE: So if he gives his opinion about a

10 particular situation, you think it should not be

11 relevant.

12 MR. MORAN: Yes, your Honour, and especially having looked

13 at the list of people that was given, I think that maybe

14 three of them have been designated -- there is like a

15 bunch of people. About 30 names are in this packet we

16 were given. As I went through them last night,

17 I believe four of them are witnesses in this case.

18 I did not frankly go through and see which ones are

19 mentioned in the indictment.

20 JUDGE KARIBI WHYTE: Does your client suffer any prejudice

21 if he testifies as an expert?

22 MR. MORAN: The prejudice would be this: I do not know what

23 this man has published in the past; I do not know what

24 his training is. On the expert physician that

25 I designated, I provided everybody with his training

Page 2840

1 experience, everything he has ever published in his

2 whole life and if when Dr Prince, my expert, gets on the

3 witness stand, if he ever does, and begins to testify,

4 the prosecution is going to be able to reach down into

5 their briefcases and come up with the 100 or 110

6 published articles from Dr Prince and woe betide Dr

7 Prince if he testifies differently than he published.

8 Those are the kind of things that separate experts

9 from non-experts. I have published several Law Review

10 articles. If I were to get up in front of a court and

11 argue a position inconsistent with what I had published

12 some place else, I am sure that the lawyer on the other

13 side, if he was any good, would have copies of those

14 articles to hand to the trial court and say: "What's

15 going on?" It is the same concept, judge. With that

16 ...

17 JUDGE KARIBI WHYTE: Do I understand that to mean that you

18 are not properly equipped to cross-examine him as an

19 expert?

20 MR. MORAN: Your Honour, that comes to the heart of it. I

21 do not know what this man's training experience was.

22 I have not seen his resume, his curriculum vitae, which

23 the Trial Chamber says I am entitled to. That would

24 include things like what he has published. If he has

25 published an article on -- I believe he is a surgeon.

Page 2841

1 If he has published an article on that, I want to be

2 able to know about that.

3 The other thing is this: it appears from the

4 written documents that I have seen that there were a lot

5 of things that were done in these physical examinations,

6 things like X-rays were taken, laboratory tests were

7 done, that type of thing. Well, I am not that kind of

8 doctor, and I do not know whether your basic surgeon can

9 interpret an old X-ray or an X-ray to show there was an

10 old injury there. I just flat don't know, but if this

11 guy is a radiologist, I would like to know that. If he

12 has training in radiology, I would like to know that.

13 If he has training in psychiatry because he talked to

14 half a dozen or a dozen of these witnesses, sending them

15 off to see psychiatrists, I think that is highly

16 relevant.

17 Depending on what the diagnoses was on these

18 people that he sent off to see psychiatrists, a couple

19 of them are witnesses. If they have big time

20 psychiatric problems, that goes directly to their

21 ability to be a competent witness. I do not know all

22 of that. I would sure like to. I am going to learn a

23 lot of it on cross. All of these things go to the

24 weight to be given to the testimony. Like I say, I do

25 not know -- he may very well have published something in

Page 2842

1 Paris.

2 JUDGE JAN: Let us hear it. Let us have his testimony and

3 you can ask him all these things in cross-examination.

4 Then we will know what weight is to be placed on his

5 testimony. It is premature at this stage to say that

6 he should not be examined at all. Partly his testimony

7 is of an expert.

8 MR. MORAN: First, your Honour, again I have never said he

9 is not to be examined at all.

10 JUDGE JAN: Let us examine him.

11 MR. MORAN: If my objection is overruled, that is no

12 problem. I can understand.

13 JUDGE KARIBI WHYTE: We still have to hear why they have

14 put him forward as an expert.

15 MR. OSTBERG: He is --

16 JUDGE KARIBI WHYTE: If he has to give such a testimony.

17 MR. OSTBERG: He has -- firstly, for the knowledge of the

18 defence of what is going on in this case of this

19 witness, the statements made by him was given to them,

20 as I stated yesterday, during the last summer, and they

21 have had all possibilities to see what it is all

22 about. On our witness list which we presented to the

23 court in due time, as we were asked to do, his name was

24 on it as number 12 and the text which we gave to the

25 defence was the following:

Page 2843

1 "Physician. He visited and issued medical

2 certificates on a number of former detainees of Celebici

3 camp."

4 That has been known to the defence since this list

5 landed with them. We did not put him on the list as an

6 expert, but we gave notice very clearly of what he is

7 going to testify about. He would be, in my civil law

8 system, a mixed witness. We separate in the civil law

9 system, between experts being appointed by the court. All

10 others who are pure fact witness or mixed witness are

11 treated like witnesses. That might have had some

12 reflection on the way in which I put him on this witness

13 list.

14 I think it is not clear to me that this contention

15 made by Mr. Moran from the point of view of American law

16 is correct. In my submission this is not and it does

17 not draw a distinction between factual observation and

18 opinion. You always land sometimes with witnesses who

19 have expertise and have seen things belonging to the

20 fact. As I said in my -- I am quite used to that in my

21 system and they are always put forward as witnesses.

22 I think we come down to again a pure matter of

23 admissibility on this witness. We know what he is

24 going to testify to and we have to ask the question

25 again: is what he is going to tell us relevant? Has it

Page 2844

1 a probative value? I think we would answer "yes" to

2 both these questions.

3 Then we would ask the last question again: if it

4 is outweighed to secure a fair trial. I think this is

5 not prejudicial at all to the defence or the accused to

6 have this person giving evidence of what he saw on

7 people who had been detained in the Celebici camp.

8 I think I have explained why I did not put him on the

9 list as a fact -- as an expert witness. He is in my

10 opinion something of a mixture and he falls in the

11 general witness category. I ask your Honour's

12 permission to bring him as a witness.

13 JUDGE JAN: Mr. Ostberg, is there any requirement in our

14 Rules that an expert witness should be specifically

15 mentioned as an expert witness?

16 MR. OSTBERG: No. I cannot say that. There are Rules on

17 witnesses and I am not aware of something like that.

18 So I feel very confident when I put him on the list in

19 the way we did. Thank you, your Honours. I do not

20 think I have more to add.

21 MR. MORAN: Just one quick thing. Judge Jan, you asked a

22 question about anything in the Rules. The Trial

23 Chamber on January 25th entered an order -- entered a

24 decision. Paragraph 1 says:

25 "The prosecution or the defence for each accused

Page 2845

1 will provide the other party with timely notice of

2 potential expert witnesses. The notice will include

3 the name of the witness, the witness' CV and a statement

4 of the areas about which the witness will testify".

5 Then this Trial Chamber went on to set out

6 deadlines. If there is no longer a need to designate

7 expert witnesses, that is fine with me. I have no

8 problem with that. In the Delalic case this Trial

9 Chamber in a Decision of the motion of the prosecutors

10 to allow investigators to follow the trial issued on

11 27th March -- this Trial Chamber said:

12 "An expert witness is one specifically skilled in

13 the field of knowledge about which he is required to

14 testify. The question of whether a person is an expert

15 is one of law for the determination of the Trial

16 Chamber."

17 I think that the Trial Chamber is going to have to

18 decide: does he meet the first sentence of your decision

19 of March 27th, or again I have no objection if the Trial

20 Chamber wishes to rescind the order of January 25th,

21 1997.

22 JUDGE KARIBI WHYTE: I do not know about that. I think it

23 depends on the status under which he testifies. If he

24 is not testifying as an expert, it does not have to

25 comply with those conditions.

Page 2846

1 MR. MORAN: Absolutely correct, judge.

2 JUDGE KARIBI WHYTE: Definitely if his testimony includes

3 his expertise, definitely it has to comply with those

4 provisions.

5 MR. MORAN: I agree with that wholeheartedly and I think

6 I have set that out in my written submission. There

7 may be a question about what is an expert but that is a

8 question of law for the Trial Chamber. I have set out

9 what I think the law is. Mr. Ostberg has set out what

10 he thinks the law is on what is an expert. I do not

11 think that an expert witness is someone who is just

12 appointed by the court. If that were true, then there

13 would not be any need for me to designate experts. An

14 expert is somebody who has got special skilled training.

15 JUDGE JAN: Giving his opinion.

16 MR. MORAN: And is basing it either on his skill, opinion or

17 training. That is correct, judge. No question about

18 it. Thank you very much.

19 JUDGE KARIBI WHYTE: Mr. Ackerman?

20 MR. ACKERMAN: I have a proposal. I am not sure my

21 colleagues will agree with me, but I will seek their

22 agreement as I speak. I think the way to cut through

23 this difficult problem is for us to go ahead and bring

24 the witness to the witness stand and let the prosecution

25 go ahead and examine him, with this understanding, that

Page 2847

1 the prosecution will as soon as possible, and I hope

2 that should be either through the next break or by the

3 lunch break at least, supply us with his CV, his

4 curriculum vitae for us to examine.

5 If appears at the end of the examination and

6 cross-examination that we would require additional

7 cross-examination based on his curriculum vitae and if

8 he has given opinions that we want to enquire into

9 further that we have not been able to prepare for, then

10 the prosecution could either agree to bring him back a

11 week from now for additional cross-examination or keep

12 him here for a week for additional cross-examination, or

13 whatever would be appropriate under the circumstances,

14 but I think the concern we are all having is that if he

15 gets into an area of expertise, we have no knowledge

16 about his background, training, things of that nature,

17 which might be quite relevant to his ability to give the

18 opinions that he will seek to give. Those are the

19 things that concern us, and I hope that that proposal is

20 acceptable. I think it makes sense for all of us to

21 pursue it that way.

22 MR. OSTBERG: I am not sure that I can provide the defence

23 or the Trial Chamber with his CV. I am not in

24 possession of it. The first question when he is put on

25 the stand would be to ask him on his education, his

Page 2848

1 university training, his speciality, etc, etc.

2 I happen to know that he is a specialist.

3 JUDGE KARIBI WHYTE: I suppose that should be acceptable to

4 you for the time being. Mr. Ackerman?

5 MR. ACKERMAN: Your Honour, I only speak for myself, but

6 I think that probably is acceptable, if we can develop

7 all that information from the witness stand, but with

8 the understanding that if we develop information that

9 would require us to prepare for additional

10 cross-examination of this witness, that the prosecution

11 would make him available within a reasonable amount of

12 time, a few days, a week, something of that nature;

13 otherwise it is of no use to go through that.

14 JUDGE JAN: Yes, you should, because you have not given the

15 defence his background.

16 MR. OSTBERG: Okay. I quite agree. I accept this way of

17 handling it.

18 JUDGE KARIBI WHYTE: I think the nature of the opinion you

19 expect of him will determine whether he could go forward

20 to have that exercise, because if you want him to give

21 expert opinions of really an erudite nature, you expect

22 him to testify to that issue.

23 MR. OSTBERG: And bring him back at a later point in time.

24 Thank you.

25 JUDGE KARIBI WHYTE: I think this should conclude this