¹⁹⁵ Friday, 17 November 2000

[Status Conference]

(Open session)

[The accused entered court]

--- Upon commencing at 10.30 a.m.

JUDGE HUNT: Call the case, please.

THE REGISTRAR: This is case number IT-99-36-PT, the Prosecutor versus Radislav Brdjanin and Momir Talic. I would also like to remind all of the parties to please speak slowly and take pauses after their sentences. Thank you.

JUDGE HUNT: Appearances.

MS. KORNER: Your Honours, yes. I represent the Prosecution this morning, Joanna Korner. Can I introduce to Your Honours and the Court Mr. Nicholas Koumjian, who has just joined the Office of the Prosecutor and whose baptism by fire this is going to be this morning. And I'm supported by Adele Erasmus, case manager.

MR. ACKERMAN: Your Honour, hoping there is no fire in which to be baptised, this is John Ackerman appearing on behalf of Mr. Brdjanin.

MR. PITRON: [Interpretation] Good morning, Your Honours. I am Michael Pitron representing the interests of General Talic, and I am assisted by Madam Natasha Fauveau.

MR. De ROUX: [Interpretation] I am Xavier de Roux from the Paris bar, and I am assisting General Talic.

JUDGE HUNT: Thank you. This is a Status Conference called in accordance with the requirements of Rule 65 bis, and so far as we have ¹⁹⁶ been informed, only for the purposes of complying with the section. However, Ms. Korner, you are standing, I assume you wish to say something.

MS. KORNER: I have a number of matters to raise this morning.

THE INTERPRETER: Microphone, please.

MS. KORNER: If I may begin with the vexed question of the protective measures motions and rulings. Your Honour, can I refer Your Honour to the application that we made the third motion where in paragraph 2 we applied to redact from statements which were disclosed the current whereabouts of any witnesses mentioned in the above-referenced statement prior to the disclosure of the statements to the Defence. In paragraph 3, we sought a blanket order from the Trial Chamber granting leave to redact the current whereabouts of any witness from witness statements for the remainder of the case.

Now, Your Honour, I am prepared to concede that perhaps we didn't make the application as clear as we might in this motion. Our application was not only to redact the current whereabouts of the witness making the statement but also witnesses who were mentioned -- other witnesses, who were mentioned in that particular witness' statement. Quite often where there are incidents, a witness will say, who has made the statement, "Also present was "X", who now lives in," just taking an example, "Stockholm," and further mentions other people who were present with their current whereabouts who, although they may not have actually made a statement, in many cases have been contacted by the Prosecution and have declined to assist, expressing the fears for their security that Your Honours are ¹⁹⁷ aware of. Your Honour, it is all of that that we wish to redact. In Your Honours' ruling on the 8th of November, on that particular motion - will Your Honour forgive me while I just find the exact wording - because the Defence have not raised any objection to that, Your Honours ruled that the actual order was the Prosecution is granted leave to redact from the statements of all witnesses whom it proposes to call to give evidence in this case any information concerning the current whereabouts of each witness.

Until I read Your Honours' decision of the 15th of November, I read that as an authorisation for what we requested. But, Your Honour, before Your Honour gave the ruling of the 8th of November, we put in a further two motions, and in the fifth motion, in respect of Witness 7.1, it was not his whereabouts that we wished to redact, it was the whereabouts of an individual that he had named in the -- in fact, it's a proffer of testimony, as it's called here. It's not a signed statement. Your Honour, Your Honours gave a ruling on the 15th of November on that fifth motion in which, in paragraph 2, you summarised the relief requested as this: "The relief sought by the Prosecution in its fifth motion is as follows: Leave to redact from the statement of Witness 7.1 any information concerning the witness' current whereabouts," whereas in the motion we'd actually said an individual named in the proffer.

JUDGE HUNT: Well, you may well have, although you haven't read it out to us. You've read out what happened in the third motion. What was sought in the fifth motion?

MS. KORNER: Your Honour, I'm sorry, I thought I had. Can I ¹⁹⁸ read --

JUDGE HUNT: Well, I'm sorry, I don't have all of the motions here. I have the decisions.

MS. KORNER: We can provide Your Honour with a copy of the motion.

JUDGE HUNT: No, no, no. You just tell me what it was you sought in the fifth motion.

MS. KORNER: Yes. Your Honour, in the fifth motion we sought this: "The Prosecution intends disclosing the unredacted proffer of testimony which formed part of the amended indictment supporting material; however, prior to disclosing the proffer, the Prosecution seeks leave to redact the whereabouts of an individual named in that proffer."

JUDGE HUNT: Well, I'm sorry, was 7.1 mentioned earlier, as I recall 7.1 cropped up throughout most of the motions. It may be that, to use a vernacular phrase, being up to our ears in protective motions, we have jumped from the third to a later one. If we have, then it's an error. But as long as we are assured that the consent or the nonopposition by the accused was to what you have sought in the fifth and not just what you've sought in the third, we better make sure that that is so before we change it.

MS. KORNER: No. Well, that's the very point, Your Honour. I spoke to Mr. Pitron yesterday to inform him, as I did Mr. Ackerman this morning, of the matters I wish to raise this morning, and I understand that there's still no objection to the current whereabouts of the witness making the statement being redacted. There is, as I understand it from ¹⁹⁹ Mr. Pitron yesterday, an objection to redacting from the statements the current whereabouts of other individuals named.

JUDGE HUNT: Well, then, may I suggest you seek a variation of the fifth order -- the order on the fifth motion, and Mr. Pitron can put on his objection and we'll deal with it.

MS. KORNER: I was hoping, Your Honour, as we are all here, we could deal with something by way of an oral hearing.

Can I explain why? We have ready or would have had ready to disclose today a number of statements.

JUDGE HUNT: Well, the problem of dealing with it today is that I am sitting here as the Pre-Trial Judge; Judge Liu is along out of interest; Judge Mumba is not here. It is not a full Trial Chamber so that's why I suggested you'd have to do it, if I may say so, in a request for a reconsideration, or perhaps a variation would be better. I will look with interest to see how the status of 7.1 changed through the motions, if it did. It may not have. If we have made an error, well, then, obviously we'll correct it. If counsel for General Talic now objects to it, we'll have to consider his objection, but we can't do it without all three Judges.

MS. KORNER: Yes. Very well, Your Honour. Of course, I hadn't appreciated the absence of Judge Mumba would make a difference.

JUDGE HUNT: There are only two of us here.

MS. KORNER: I can see she's not here. I didn't realise you couldn't make a ruling in her absence.

JUDGE HUNT: Well, may I put it this way: As Pre-Trial Judge, I ²⁰⁰ could. But the decision having been given by the full Chamber because of the general approach to the whole of the protective measures issue, I think it would be preferable that if it were to be varied, it was varied by the three of us.

MS. KORNER: Very well.

JUDGE HUNT: But if you do that and we get a swift reply, I shall hasten to warn you that there are only two Judges from the Trial Chamber here as from the 1st of December, so everything that has to be done before then should be done.

MS. KORNER: Your Honour, on that I can say unhesitatingly we will put the variation in for filing today.

JUDGE HUNT: Yes. And I hope that Mr. Pitron will be able to give us a reasonably swift answer.

MS. KORNER: Your Honour, in that case, can I move to touch on just briefly the question of the disclosure of the names of witnesses the Prosecution does not intend to call.

As Your Honour knows, we have appealed the general principle that Your Honour has applied, and we await --

JUDGE HUNT: I hadn't read it that way, but no doubt that's what you'll put in some submissions.

MS. KORNER: Yes.

JUDGE HUNT: However, what do you want to do with it now?

MS. KORNER: I just want to raise effectively this: One of the witnesses that Your Honour has ordered us to disclose the name thereof is a witness who, as Your Honour knows because we said that in one of the ²⁰¹ motions of the 31st of August, is a witness who is the subject of continuing protective measures from other --

JUDGE HUNT: May I suggest that the Prosecution seems to be almost incapable of differentiating between protective measures which prevent the name of a witness becoming public and the name of a witness being disclosed to the accused. There was no suggestion in any of your documents that the protective measures which he had been given in other trials included no disclosure to counsel.

MS. KORNER: No.

JUDGE HUNT: We have not dealt anywhere in any of these with your right -- the witness' right to have protective measures preventing disclosure of their identity to the public. I think that if anybody suggests we haven't made that clear, they haven't read the decisions. And that, if I may say so, has been the principal problem in having to determine the Prosecution's application to prevent disclosure to counsel and to the accused. They seem to have assumed that if you're entitled to ordinary protective measures, if I may so describe them, then that would include nondisclosure to the accused. But from the very first decision, we have drawn a very substantial distinction between them. Whilst inattention to detail might have been a polite way of putting it, it seems almost as if, and I'm sorry to put this this way, you are trying to build up some sort of case that we are not understanding what you are doing. But it is very clear: You simply put up, so far as we have seen so far, an application which would probably succeed in getting protective measures preventing disclosure to the public, but no ²⁰² where have you ever dealt with the real issue as to where the risk is by disclosing it to counsel for the accused.

Now, that's been the problem throughout, and in rather increasing frustration, we've even given you advice on evidence, on how to do it in the future.

MS. KORNER: Yes, we've read your advice on evidence. Your Honour, may I -- the reason -- I don't think -- I think the matter is, therefore, not worth rehearsing at this stage. I was merely anxious to ascertain if, in making Your Honours' ruling on that particular witness, Your Honour had appreciated who that witness was.

JUDGE HUNT: But where is there anything in it which is relevant? The fact that they had protective measures preventing their disclosure to the public is very interesting, but where does it take us in relation to disclosing the identity of those witnesses to counsel for the accused?

MS. KORNER: Well, Your Honour, I had thought -- well, can I put it this way: The reason -- leaving aside the other witnesses, which is a question of delayed disclosure not a question of withholding their names entirely from the accused, these witnesses are not going to give evidence. That is the reason that we say their names --

JUDGE HUNT: Could you slow down please. You are speaking too quickly.

MS. KORNER: The reason that we made it very clear is that we do not propose to disclose their names to the accused because they will not be giving evidence which affects the accused.

JUDGE HUNT: You made that statement, and we found no support for ²⁰³ it in any of the Rules. We went to the trouble of trying to work out for ourselves whether there was going to be some question of the interests of justice, but until the Prosecution puts something to us, then we can't make any decision in your favour. That's the problem.

MS. KORNER: I appreciate that's what Your Honour said.

JUDGE HUNT: If I may say so, the last of them, whichever one it is that this witness came up in, did not refer us back to the earlier material which was, I think, in an application for an extension of time. It would be advisable for the Prosecution to keep all of its material together when it's asking us to consider a protective measures motion.

MS. KORNER: No. If Your Honour criticises us, me, for not referring Your Honour back to the motion of the 31st of August, in fact, that is when we asked for the extension of time with the reasons. Thereafter, the witness, having been contacted, he declined to give evidence.

JUDGE HUNT: None of this is stated. And if I may say so, you you've simply said you weren't going to call him, as I recall.

MS. KORNER: I am sorry. Your Honour is quite right. To that extent, it was our failure because we were relying to that extent on the decision given some years ago in Blaskic, where it was said that if the Prosecution did not call the witness, the name would not have to be disclosed. Therefore, we didn't say, "He doesn't want to give evidence." Your Honour is quite right.

JUDGE HUNT: It may be an idea to give us some reference to that decision as well. I'm sorry to be critical, but -- I don't know why I've ²⁰⁴ suddenly got French translation in my ears.

I'm sorry to be critical, but I did get the feeling but we were not getting the assistance which we deserved.

MS. KORNER: I understood perfectly from reading Your Honour's ruling that's what Your Honour felt. But, Your Honour, in one sense the next topic I want to raise - I will leave that particular topic - is somewhat aligned to it.

In their reply to the motion of the -- it's the submission by counsel for Talic, dated the -- forgive me, Your Honour. I just want to make sure I've got the right one. Yes. It was the response to the Prosecution motion for protective measures, dated the 21st of September.

JUDGE HUNT: Perhaps we could refer to them by number.

MS. KORNER: Yes. It was the fourth motion, where the counsel stated that in the absence of the -- perhaps I should read the exact words, "That the stubborn refusal of the Prosecutor to disclose it," that is the identity of a particular witness, "to Defence counsel will force the Defence to resort to the option given it by the above-mentioned decision." That option was to place the redacted statement before the officials of the Republika Srpska to see if they could identify the witness. And Your Honours, in delivering your judgement on that motion on the 15th of November, in paragraphs 12 and 13, had something to say about that.

What concerns the Prosecution, Your Honour, and I have raised this with Mr. Pitron yesterday, is whether or not that has already been done. And I would like it -- for the purposes of the record, I explained this to ²⁰⁵ Mr. Pitron, and he said he would have to investigate, that I would like it stated whether or not in fact some of the statements have already been shown to officials where redactions, up until now, have taken place.

JUDGE HUNT: Well, that is going to involve, is it not, an issue as to whether or not showing any of the statements to an official of the Republika Srpska is directly and specifically necessary for the preparation and presentation of this case. Is that what you want a ruling on?

MS. KORNER: No. What I want a ruling on -- I think Your Honour has given ruling. I didn't want a ruling. I want an assurance that statements have not been shown to officials of the Republika Srpska purely for the purpose of identifying the witness who has made the statement.

JUDGE HUNT: Well, that's a different issue. But what is it you want us to do, to have some form of interrogation here? Is that not something which really should be dealt with in the usual way between the parties in some form of written request for information?

MS. KORNER: Your Honour, I know that this Tribunal operates virtually entirely in writing, but I did make an oral request of Mr. Pitron yesterday, but I think it's also important that this should be said on the record. And it may well have an effect, Your Honour, in subsequent applications. So, therefore, it is considered by us to be important.

JUDGE HUNT: I can understand that the Prosecution does feel it important, and indeed the Trial Chamber thinks it is important, but I'm not sure whether this is the way to deal with it, that's all. ²⁰⁶

MS. KORNER: Well, Your Honour, that's the application I make at this point.

JUDGE HUNT: Mr. Pitron, are you able to inform us, having had such investigations as you've been able to make, whether any such statement has been given to the or shown to an official of the Republika Srpska solely for the purpose of determining the identity of that witness?

MR. PITRON: [Interpretation] Mr. President, I'd like to thank Ms. Korner for having asked me that question. I'll ask my associate Xavier de Roux to answer that question.

THE INTERPRETER: Mr. President, can we have the counsel put his microphone on, please.

JUDGE HUNT: Microphone, sir. MR. De ROUX: [Interpretation] For some time now we've been dealing with this problem of having access to the Prosecution's case file. From the very first day, we have been attempting to have access to the Prosecution's file. We have yet again heard just now the Prosecution refusing, of course, to give to us the real charges which, in its opinion, might exist against General Talic.

You have rendered three decisions dealing with the issue of witnesses. Two of the decisions are now being appealed, and it seems to me that we're trying to get into a trench war rather than trying to deal with someone who has been arrested, and the Defence counsel of General Talic is now being attacked.

We read, Mr. President, your decision. It is very clear that we are bound by our own ethics and by the Rules of the Tribunal and that we ²⁰⁷ will apply them. That is the answer that I can give to Ms. Korner.

JUDGE HUNT: Thank you. Well, Ms. Korner, you may or may not be satisfied, but I rather suspect this is a matter that cannot be dealt with here.

MS. KORNER: Yes. It's not an answer, and that's for sure. Very well. I will deal with it in the normal way, in writing.

JUDGE HUNT: I think that would be advisable.

MS. KORNER: And, Your Honour, finally, the ever-present subject. Is Your Honour able to give any kind of a target date for when this trial will start?

JUDGE HUNT: Well, there is an event which will be taking place, I understand either at the end of February or early March, which will have a considerable bearing upon the capacity of this Trial Chamber, as it is presently constituted, hearing the matter. That is the election for the period of tenure from the 17th of November, 2001, and it will depend very much upon whether all three Judges are re-elected for that term as to whether this Trial Chamber will be able to hear this case. As you can see, it will be very difficult for the Trial Chamber to commence and, on the 16th of November, anybody who has not been re-elected, getting up and walking away.

The whole of the timetable or schedule for next year is really up in the air at the moment. The way in which it has been left is that if we are to hear it, I suspect that it will get under way by May. That's the best I can say.

But bearing in mind what time the trial is likely to take, I know ²⁰⁸ I've heard no particular submissions from the parties on this issue, but it is very clear it is not going to be a short trial. We have to know, and we won't know I should think until the beginning of March or end of February, whether we will be able to start it at all or whether some other Trial Chamber, a reconstituted Trial Chamber, for example, will have to hear it.

So that's the best I can do. I would not like to say to you yes, we will start in May, but that's when I would anticipate that we will have finished the current trial, one of the current trials. The other one will be finished a lot earlier, of course. So that's the best I can say for you.

MS. KORNER: Thank you very much.

JUDGE HUNT: Mr. Ackerman, is there any matter you wish to raise on this Rule 65 bis?

MR. ACKERMAN: No, nothing, Your Honour. Thank you.

JUDGE HUNT: By the way, Ms. Korner, I did promise you I was going to ask you this every time we have a Status Conference: Has the Prosecution formed an intention to call any witnesses other than those it has presently notified the Defence?

MS. KORNER: Yes.

JUDGE HUNT: Have you served the statements?

MS. KORNER: No.

JUDGE HUNT: When will you?

MS. KORNER: As soon as we sort it out, what we can redact from them and what we can't. ²⁰⁹

JUDGE HUNT: Do you mean to say you are going to await the processes of the appeals?

MS. KORNER: No. No. These statements are those of witnesses who we are not attempting to delay disclosure of their identity. These are witnesses where the only problem that arises is in respect of current whereabouts.

JUDGE HUNT: Well, as I understand it, there is no objection to you redacting current whereabouts except in relation to 7.1. I'm sorry. Except for the person named in the 7.1 statement.

MS. KORNER: Yes. But in some of these statements, we, until yesterday or the day before when Your Honours delivered your ruling of the 15th of November, understood we could redact out of the statements current whereabouts not only of the witness making the statement but any other witness or individual named therein. It was quite clear that was not the ruling that Your Honour had made or it seemed to be clear. And so for the new statements that we wish to disclose, we wish to redact out not only the current whereabouts of the individual -- Your Honour gave us a blanket order. It's a question of what that blanket order covers.

JUDGE HUNT: Well, I haven't got the documents in front of me, and I've moved on to writing something else at the moment, so the detail of it has gone out of my mind, frankly. That's why it's not easier to try to sort it out here.

MS. KORNER: No. But as I say, that's the only issue --

JUDGE HUNT: Well, there was an issue as to when you may have to disclose the current whereabouts, whether it is of the witnesses or of ²¹⁰ persons named in there. So it may be that we'll have to start from scratch. There may be a misunderstanding in what was conceded.

MS. KORNER: Yes. Your Honour said in the ruling - I do have the ruling here - that the current whereabouts, if the Defence wish to have them, they could apply. The names of those where delayed disclosure was granted, I don't think, in fact, Your Honours granted delayed disclosure in any case yet, but that was a separate matter that was to appear nearer trial. As I say, the only problem has now been caused, these statements would have been disclosed this morning had it not been for the fact that it became clear that not only was, perhaps, Your Honours' ruling not directed to that issue, but nor had the minds of counsel for General Talic --

JUDGE HUNT: That's what concerns me, you see.

MS. KORNER: Yes. And that --

JUDGE HUNT: If we have made an error, so may they have made an error.

MS. KORNER: No. That's why I said, in line with the general principle, that clearly we're not providing sufficient detailed information with sufficient clarity, which I can see is Your Honours' view. We accepted that we may not have been as clear as we might have been in the first of the applications, and that is why we say that. Can I add this: I understand from Mr. Ackerman that he does not require witnesses' present whereabouts. It is entirely -- or anybody's at the moment. It is entirely the request of counsel acting for General Talic. ²¹¹ The other issue that has arisen is the fact that the Bosnian statements which are being disclosed contain an identity number which, in the former Yugoslavia, was unique and would identify the witness. I am happy to say it's the one issue on which all sides are in agreement. The Defence do not require that and we may redact.

JUDGE HUNT: Yes. Now, the other thing I had to ask you: Have you concluded that process of examining all the material, other than what you have in this case, for exculpatory material under Rule 68?

MS. KORNER: No. I think as we've said to Your Honours before, it's a mammoth task, and although we have people working on shifts - I think other cases have had the same problem - we couldn't -- we will not have concluded that task until --

JUDGE HUNT: You're not waiting until you conclude the task. If you find something of an exculpatory nature --

MS. KORNER: If we find something, it's disclosed.

JUDGE HUNT: Yes. Well, that's the assurance I'd hoped you would give. Thank you very much.

Yes, Mr. Ackerman.

MR. ACKERMAN: Your Honour, Ms. Korner just represented a position that I have taken, and from what I've heard her say just recently, it may have gotten itself confused and I want to, at least for the record, try to clarify it.

When Ms. Korner says that I have no objection to nondisclosure of the whereabouts of witnesses, I mean that in the sense of the word "witness" being defined as someone who the Prosecution intends to bring ²¹² here to testify and not in the sense of someone who may have observed or heard something during the time involved. She just recently used the word "individual" in place of the word "witness," so I just want to make it clear that my consent is only for the nondisclosure of the whereabouts of people who the Prosecution intends to bring here as witnesses in the case, whether they are the ones who make the statement or are somehow identified within the statement of some other witness. And that's essentially all I've agreed to. Thank you.

JUDGE HUNT: Which only underlines the necessity, if I may say so, of all of this to be put in writing somewhere.

Mr. Pitron.

MR. PITRON: [Interpretation] Mr. President, thank you for having given me the floor.

I would like to tell you about some concerns, a real worry, that I have as these hearings progress and the way things are happening, especially the attitude of the Prosecutor.

This very morning we heard that the Prosecutor is continuing to give information which is key for the witness, that is, the witness that she plans to call to testify here, and this despite your decisions and despite the perfectly clear terms of the Rules of Procedure and Evidence, which means that holding back information relative to the identity of the witness is an exception.

We then heard the Prosecutor explain to us that she had not finished disclosing the exhibits or the names or the statements of the witnesses that she intended to use in this trial. We even heard the ²¹³ Prosecutor say to us, with rather touching naivete, that, in fact, she perhaps in the beginning had not been sufficiently precise. I do not have the impression that she's any more precise today, Mr. President. I would, in addition, like to draw your attention to the exhibits which have been -- or the documents which have been disclosed to us, and if you allow me, I would like to waste some time or to take up some time in the Tribunal here.

Forty-thousand documents on 20 CD-ROMs; 33.782 exhibits have been studied by ourselves today. We are working. Among these documents: 400 drawings of urban areas; 700 dealing with sports events, such as the 1992 Olympics; 450 having to do with cultural information in the Banja Luka area; 800 dealing with communal problems having to do with reasonable transport, and the increase of the price of water in the commune of Banja Luka; 300 documents relating to automobile accidents, having small accidents, the increase of rents and the increase of taxes; others having to do with the presidential election of the United States and with the Maastricht Treaty. I'm not going to waste any more of the time of this courtroom.

I can agree that we could continue to go through the Republika Srpska archives, but I simply would like to draw the attention of the Prosecutor first, and then of the Court, to the fact that I am innocent because I have not been judged; that I have been in prison for 15 months; that I have been waiting for new documents which I can justly expect that they would be important, but I've got to study them even though I think that they are going to be unimportant. Because contrary, once again, to ²¹⁴ the extremely clear provisions of the Rules of Procedure and Evidence, and particularly Rule 66(B) and 68, the Prosecutor does not tell me, among these documents that she's disclosing to me, which are the ones that are going to be required for preparing my defence or which are going to be the ones that she's going to use in order to organise her prosecution. Mr. President, a little while ago you explained in a form that I thought was very revealing that the Prosecutor has built a case, I would say that she built a case within the case. That's a good way of wasting time. I can no longer wait. I want to know exactly what I'm being accused of.

If to this we add that for nine months now I have been waiting to find out from the Tribunal whether the indictment complies or does not comply with the law, how, Mr. President and Your Honour, can I be at peace? How can I be serene? I seem to be in a tunnel. I feel that I'm in a black tunnel, an empty tunnel, and that I have no future before me, and that somewhere people are playing on the Prosecution's side in trying to get rid of me or finish me off even before the trial begins. This is a crime, Mr. President. And I thank you.

JUDGE HUNT: Mr. Pitron, may I just raise this issue about the form of the indictment application.

It has, as I understand it, been made clear to you that the reason for the delay in dealing with the motion is your complaint of multiple charging. That is a matter which is the subject of a number of appeals before the Appeals Chamber. If we gave our view on whether or not the Prosecutor is entitled to charge multiple charges based upon the same ²¹⁵ facts, whichever way it went, there would be an appeal, and that appeal would have to await the determination of the two appeals presently being heard by the Appeals Chamber.

It seemed to us that it was only increasing the delay if we gave that decision and then you had to appeal and await a decision of the Appeals Chamber, whoever was dissatisfied with the view we have formed. The form of the indictment, of course, is a very important issue. You have complained that it is not sufficiently precise, but with all due respect, you have not done what is usually done and that is to identify the particular allegations of which you say further particulars should be given.

The Prosecution, on the other side, has said, "Well, you can ask for particulars," a somewhat brave submission, if I may put it that way. There is a difference between what must be included within the indictment and what needs to be given by way of particulars. There is a decision earlier this year by Trial Chamber I - I've forgotten the name of it, but it's the case which is generally known by the name of Tuta - which makes that very clear distinction.

So that neither side has really come to grips with it, and the decisions on the form of indictment will simply be that if the Prosecution really does intend to charge General Talic with having personally committed all these crimes, then they're going to have to give the particulars which identify how he did it, who he did it to, and the circumstances in which the crime occurred.

I know that this Trial Chamber has tried to make it clear to the ²¹⁶ Prosecution in other cases that that is not the way to plead. It's certainly not an efficient way of pleading, simply to put in every possible way in which a case could be brought against a person, and that the way in which an indictment should be pleaded is to tailor it to the particular circumstances of this case and to charge the accused only with the means of responsibility upon which they really do rely. If, for example, they rely solely upon ordering, planning, and those forms of accessorial liability or responsibility - it's a very ugly word, I know, but it is used in the textbooks - and as superior authority, then most of the complaints about the form of the indictment would disappear. But because they have charged General Talic with personally having committed all of these crimes, then clearly it is quite insufficient.

I see you looking very surprised, Ms. Korner, but if you read the Krnojelac decision, if you quote the whole of Article 7(1), which includes the words "committed," then you are charging him with having personally committed all of those crimes and you have to give proper particulars. The particulars that you have to give when you charge somebody with having personally committed the crimes, having personally killed people, having personally burnt down mosques, and all those sorts of things, are very much more detailed than what I understand, really, to be your case.

MS. KORNER: Is Your Honour asking for an answer at this stage?

JUDGE HUNT: No, no, I'm just explaining to you why you have brought this, if I may say so, upon your own heads by pleading in this way. ²¹⁷

MS. KORNER: I appreciate that Your Honour's view of the Prosecution's indictments are somewhat --

JUDGE HUNT: Well, I'm afraid you've got to deal -- not just mine, but this Trial Chamber in Krnojelac laid down in, I thought, very clear terms that the issue of proximity is the all-important matter. Whilst I can imagine that the Prosecution are probably burning effigies upstairs in relation to those decisions, when you're before the same Trial Chamber, it is, if I may say so, at least good advocacy to try to comply with what this Trial Chamber has said about indictments.

MS. KORNER: Your Honour, may I say to this extent, I have been waiting in the same way -- I didn't appreciate because Your Honour hasn't communicated, as far as I remember, to us that you were waiting for the decisions to be made on the form of the indictment. But can I say this: I've been waiting. Once we have a ruling, it may well be that the indictment takes a very different form.

JUDGE HUNT: Why wait for the ruling? You know what the Trial Chamber will say, and this decision, which has been waiting about the cumulative charging, is a different matter. But as to the form, all that the decision of this Trial Chamber will be is these are the principles applicable, and it will be restating what has been said in the three Krnojelac decisions.

MS. KORNER: Yes.

JUDGE HUNT: I don't understand why you are waiting.

MS. KORNER: Because I, on the whole, Your Honour, tend to wait for rulings from the Court before -- ²¹⁸

JUDGE HUNT: But you know what the rulings are.

MS. KORNER: I know what Your Honours' rulings have been and I know what the application is by counsel for Talic.

JUDGE HUNT: Yes, but does this mean that you have to wait -- you put on anything that comes into your head and then wait for a complaint? It just seems to me that this was an indictment which was, from memory, dated December of 1999, after all of these decisions have been given, or at least two of them, in which it was very clear that you had to face up to the reality that if you charged somebody with personally having done all these things, you have to give proper particulars; whereas if you charge them with a more remote responsibility, the particularity is less.

MS. KORNER: I don't think -- at this stage, Your Honour, I don't think there's anything that I want to say about this matter.

JUDGE HUNT: No, no, I'm not asking you to answer it. I'm just pointing out to you a sense of frustration that I have when you say you were awaiting a ruling. You've got every knowledge of what this Trial Chamber has said.

MS. KORNER: Your Honour, the difficulty is I appreciate that at the present we're in front of Your Honour. Your Honour has just remarked today that we may or may not be in front of Your Honour. Other Judges, as Your Honour knows, take a different view of how the indictment should be formulated. It is not possible to prejudge an issue such as this.

JUDGE HUNT: If I may say so, you are not yet before another Trial Chamber, and it is this Trial Chamber that will have to give that decision whether it finally hears the case or not. ²¹⁹

MS. KORNER: Yes.

JUDGE HUNT: That's why I have a feeling of some frustration that nothing is being done.

MS. KORNER: I take note of what Your Honour says.

JUDGE HUNT: If I may say so, both Trial Chambers I and III have expressed similar views.

MS. KORNER: Yes.

JUDGE HUNT: So where you are going to get some assistance from other than the Appeals Chambers, I don't know. It may be that's where you'll take our decision. However, it is that which is holding us up, the question of cumulative charging.

It may be, if the Prosecution is sitting back in some form of relaxation awaiting a decision, in this case we will simply restate those principles.

MS. KORNER: I'm sorry, Your Honour, I missed the beginning of what Your Honour had to say.

JUDGE HUNT: I'm wondering whether it would help bring the Prosecution to face the problem if we just gave another decision which resets out everything that's in the Krnojelac decision. Would that bring the Prosecution to face the problem?

MS. KORNER: Your Honour, can I put it this way: If Your Honour is waiting on the aspect of cumulative charging to issue a full ruling on the motion, well, then, it is, if I may submit very respectfully, it would be more sensible before we start re-ordering the indictment to see exactly what it is we have to re-order it with rather than at this stage altering ²²⁰ part of it and then further altering it at a later stage.

JUDGE HUNT: That, of course, is why we haven't given the decision, for that very reason.

MS. KORNER: Your Honour, it is, I'm afraid -- it simply hadn't filtered down to the Prosecution. That was the reason why Your Honour hadn't given that decision.

JUDGE HUNT: All I know is that the senior legal officer had been requested very properly by counsel for Talic to indicate when a decision would be given and that was the indication given.

MS. KORNER: Well, Your Honour, the senior legal officer very kindly gave it to the counsel for Talic but did not pass it on to us.

JUDGE HUNT: Well, I'm very sorry about that.

MS. KORNER: But, Your Honour, it seems to me sensible, because otherwise, we just add to the ever-increasing number of papers in this case by waiting for Your Honour's ruling on the whole aspect and then making the appropriate changes.

JUDGE HUNT: May I suggest though that the Prosecution start work on its indictment, because you do have an obligation to give the best particulars you can, and if you take a very simple illustration, when you just talk about the burning of mosques, you must know which mosques were burned and approximately when, and that may prove to be of some importance. Because we have heard in another case, what we make of it I do not know at this stage, but, nevertheless, it was suggested that some mosques were burnt because they were being used not as mosques but as storage of ammunition and things. ²²¹ Now, that would, I think, avoid any war crime having been committed in relation to the destruction of that mosque. And it is only fair for the accused to know which ones you are relying upon to know whether they have an answer to it. But you've just got a most general statement. You must know, for example, which villages were burned and approximately when they were burned. Those are the particulars which should have been in the original indictment.

MS. KORNER: Your Honour, it's very difficult, because as Your Honour knows, in your jurisdiction and my jurisdiction, you don't give that sort of detail. It's part of the, as it were, the opening note or schedules to the indictment, whatever.

JUDGE HUNT: Look, I agree with you entirely, Ms. Korner. If I had the opportunity of drafting the Rules, they would have been, I think, less demanding. But they are the Rules, and whether you or I are accustomed to such Rules, the fact is they exist.

MS. KORNER: Yes.

JUDGE HUNT: And it's not so difficult when you must have that information. It was said by this Trial Chamber in one of the Krnojelac cases, that the Prosecution appeared to be trying to hide as much of what its case was to be. It seems to be endemic. That's the problem.

MS. KORNER: No. I mean, Your Honour, it's perfectly clear, of course, and it's always been intended and I make it very clear, I know Your Honour takes a somewhat jaundiced view of the Prosecution in respect to the protection of witnesses and I don't think we're ever going to agree on that one, but in the respect of such matters as villages, mosques, and ²²² the like, of course it is the intention of the Prosecution to serve upon the Defence lists, schedules, that encompass the municipalities, the villages, the mosques, and the like.

JUDGE HUNT: Those should have been in the indictment.

MS. KORNER: And, Your Honour, I take full responsibility for that and I'm afraid you will have to blame my ignorance of what was then or my ignorance at that stage.

JUDGE HUNT: Ms. Korner, I'm not criticising you personally. You have a particular job to do, and I am not criticising you personally at all. I am criticising the culture, if I may put it, of certain parts of the Prosecution who will not disclose their case.

Now, I know that they want to keep things open in order to add things later if they get the information, but it would help everybody if they said that, quite frankly, "We keep open our options for later but this is the best we can do at this stage."

MS. KORNER: Yes.

JUDGE HUNT: Sorry to be giving you this --

MS. KORNER: I said it was going to be a baptism of fire to Mr. Koumjian, Your Honour.

JUDGE HUNT: Hopefully, when the transcript is corrected, they will give you your correct honourific, but, nevertheless, it will be very interesting to read later.

MS. KORNER: The interesting thing about being in Holland, Your Honour, is I'm not the tallest woman I know.

JUDGE HUNT: Yes. All right. Is there anything else from the ²²³ Prosecution to raise?

MS. KORNER: No, Your Honour.

JUDGE HUNT: Is anything else from any of the accused? Yes, Mr. de Roux.

MR. De ROUX: [Interpretation] Mr. President, we have already had two successive versions of the indictment, and today we heard the Prosecutor say that some of the witnesses on which the indictment is based and who are not insignificant witnesses will not be heard and will not be a part of the Prosecution case. You must understand our perplexity. Two successive indictments, one totally vague, the second extremely vague, supported by witnesses which the Tribunal will never hear except for the Prosecution. We find that a strange situation, and I think a third indictment would be appropriate.

JUDGE HUNT: May I say this in answer to what you've said: I understand the civil-law system to place some particular reliability upon the supporting material, but the jurisprudence of the Tribunal is fairly clear on that.

The supporting material justifies the arrest. The Prosecution subsequently may replace those witnesses, if it wishes, by others, provided that somewhere, somehow, it has evidence to produce at the trial of which the Defence has been given proper notice which establishes the facts which have been pleaded.

Now, the fact that Witness X gave a statement, the use of which may or may not have been authorised, and that was used for the purposes of the confirmation of the indictment and then subsequently withdraws that ²²⁴ witness' statement does not in any way affect the validity of the proceedings. What becomes important is whether the Prosecution has evidence to prove the facts which were put before the Confirming Judge in some other way, and that depends entirely upon what the Prosecution supplies by way of statements at this stage. Whether or not they have succeeded in doing so, so far as I can see, is normally determined at the end of the Prosecution case if an application is made for a judgement of acquittal.

But I have noticed what has been said by the accused. We ourselves expressed some surprise at the way in which the confirmation process took place, but it really is not something which is going to affect the proceedings provided, and I repeat, the Prosecution has supplied the accused with statements which will establish the facts which those now missing witnesses had put forward and which was before the Confirming Judge.

Right. Was there anything else? Thank you very much for your attendance. I want to raise one matter with the Prosecution in relation to another case. It won't take long. But counsel for the Defence here may leave if they wish.

Ms. Korner, may I raise a matter with you in relation to Vasiljevic. Bearing in mind the statement made in the motion which has been filed, and I won't refer to the detail of it, but it's something said by Mr. Domazet to you. Is there anything in writing about that?

MS. KORNER: No. It was a conversation between myself, Mr. Domazet, and Mr. Groome the day before yesterday, when he came to the ²²⁵ Tribunal.

JUDGE HUNT: What worries me, frankly, is that Mr. Domazet's English is poor, as he concedes. His French has been criticised when he has attempted to use it here, and there could be a misunderstanding because what you say he said is surprising. I would be happier if I had something in writing about it from him.

MS. KORNER: I can certainly -- as Your Honour knows, he is here today.

JUDGE HUNT: Well, if he is, would you see if we can get something in writing?

MS. KORNER: Yes, I will.

JUDGE HUNT: Because I realise you want to get on to that matter.

MS. KORNER: We do, yes.

JUDGE HUNT: Thank you very much, and I'm sorry to have bored the rest of the counsel. We will now adjourn.

--- Whereupon the Status Conference adjourned at 11.32 a.m.

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