⁷

Tuesday, 15 January, 2002

[Motion hearing]

(Open session)

[The accused entered court]

--- Upon commencing at 9.29 a.m.

JUDGE SCHOMBURG: First of all, good morning, everybody. May Madam Registrar please call the cases.

THE REGISTRAR: Yes, Your Honour. These are the case numbers, IT-98-33/1-PT, the Prosecutor versus Vidoje Blagojevic; and IT-01-43-PT, the Prosecutor versus Dragan Obrenovic; and IT-01-44-PT, the Prosecutor versus Dragan Jokic.

JUDGE SCHOMBURG: Thank you very much. As to the fact that this is for all the accused the first time seeing new faces on the Bench, I should like to introduce ourselves. To my right-hand side, Judge Agius; left-hand side, Judge Kwon; and myself. All the three of us, we are, as you know, new permanent Judges of this Tribunal since November last year mandated by the General Assembly in the election and by absolute majority March last year. We are assigned to this case by the President of this Tribunal.

May we now have the appearances, please, for the Prosecution.

MR. McCLOSKEY: Good morning, Mr. President, Your Honours. Welcome. My name is Peter McCloskey. I am joined today by Dan Moylan and Saleem Naqvi.

JUDGE SCHOMBURG: Thank you. And alphabetical order, for Mr. Blagojevic. ⁸

MR. KARNAVAS: [No audible response]

THE INTERPRETER: Microphone, please.

JUDGE SCHOMBURG: And for Mr. Jokic.

MR. STOJANOVIC: [Interpretation] Good morning, Your Honours. I am defence counsel for the accused Jokic, Miodrag Stojanovic.

JUDGE SCHOMBURG: Thank you. And for Mr. Obrenovic?

MR. WILSON: Good morning, Mr. President, Your Honours. I'm David Eugene Wilson, counsel for Mr. Obrenovic. Seated at the table with me is Mr. Dusan Slijepcevic, who is co-counsel for Mr. Obrenovic.

JUDGE SCHOMBURG: Thank you. And now, please, the accused, so that we know who is who. Mr. Blagojevic, do you understand me in a language you understand?

THE ACCUSED BLAGOJEVIC: [Interpretation] Yes.

JUDGE SCHOMBURG: Mr. Jokic, do you hear me in a language you understand?

THE ACCUSED JOKIC: [Interpretation] Yes, Your Honours.

JUDGE SCHOMBURG: Mr. Obrenovic, do you hear me in a language you understand?

THE ACCUSED OBRENOVIC: [Interpretation] Good morning, Your Honours. Yes, I do.

JUDGE SCHOMBURG: I have once again to inform you that it is your right to remain silent, of course. On the other hand, you are not the object of our cases, but subject having the right to express yourselves in the framework of our Rules, or with the assistance of your Defence counsels. You only should know that everything you say may be used in ⁹ evidence against you. Did you understand this admonition? Okay, I can see. Please be seated.

Coming now to the agenda of today, first of all, I want to thank all parties for having agreed with the joint hearing, the hearing on joinder and the status conference for today. I have to emphasise, these are still three separate cases heard jointly because this is the only possibility to grant the right to be heard to all parties of the motions for joinder simultaneously.

We will today start with these motions for joinder. This Trial Chamber is seized of a motion filed on September 11, 2001 by the Prosecution for an order that the accused Obrenovic, Blagojevic, and Jokic, who are currently charged in separate indictments, be jointly tried in one unified indictment. The motion was filed pursuant to Rule 48 of the Rules of Procedure and Evidence of the Tribunal. Attached we found a draft of a joint indictment which was in the meantime amended by a new document of December 14, 2001. This document should be the basis of our deliberations today.

I should like to ask the parties to follow a systematic approach. Firstly, we have to deal with the question: Are the prerequisites of the said Article 48 met? Here I would expect some more detailed information, especially from the Office of the Prosecutor, as regards, first, the nexus between the alleged crimes leading or not leading to the same transaction; second, the number of witnesses and other evidence common to all three cases; and three, the expected time for the hearings separately and for one possible joint hearing. ¹⁰ Then we should come to possible obstacles to a joinder, as mentioned especially by the Defence counsels, a possible conflict of interest, and of course we have to find out: Will all cases take the same avenue or will there be a separate solution? For instance, the Bench is interested to know whether or not there are, by that Rule, plea bargainings in preparation, or whether or not one or the other of the accused have possibly changed their minds as regards their plea. We are always open for new approaches.

Now, we should start. The Office of the Prosecutor is moving, and therefore they have the word, but all the parties, please take it as granted that we know about the contents of your motions. I can't guarantee you that we have read each and every word of your last submission, and seeing this submission, this reminds me a little bit to a famous saying: I apologise that I have been so lengthy, but I had no time to be shorter. Or another saying: When I know what I want, I can do it in five minutes, otherwise it takes me 30 minutes. And in this spirit, I hope you will be closer to five minutes than to 30 minutes. You have the floor, please.

MR. McCLOSKEY: Thank you, Mr. President. I understand the guidelines and I hope to be brief. I think this matter has been very detailed briefed by the Prosecution's office, as well as the Defence, and I will try not to repeat myself often. But as I'm sure you're well aware by reading the indictment, this is not a perfectly simple case and that the foundation of this joinder issue is really knowledge of the case. What is this all about, and is it a series of separate crimes, is it one ¹¹ joint crime? And as you can imagine, I could talk for a long time about this crime, but I won't. I know you've had that indictment and the other materials, so I will try to hit the high points on the question of nexus especially, as I think that's key here.

In order to assist me, I have a diagram that is similar to the diagram that's attached to the indictments themselves, because understanding the geography and the situation is critical to understanding this joint enterprise which the Prosecution, of course, views as basically one big crime, to murder the Muslim male population of the Srebrenica enclave, the crime that occurred basically from the 12th of July through the 16th of July, where over 7.500 men and boys were systematically murdered by the VRS.

Now, let me just give you a little background. This is what's known as the Podrinje area in Eastern Bosnia, a very critical area to all parties. This is the Federal Yugoslav Republic over here, and of course bordered by the famous Drina River on the right side. The left side of the diagram is the front line, the confrontation line as it was in 1995, where the troops on both sides were in trenches largely. Down here is the Srebrenica enclave that was created by the UN back in 1993, and this also is full of trenches, where both sides were facing each other. And in the green, we have outlined the Bratunac Brigade, the brigade of the Drina Corps in the south, and then its neighbour to the north is the Zvornik brigade. Other brigades are the Milici Brigade, the Birac Brigade, and the Skelani Separate Battalion to the south. Now, what's noted in orange are the various crime scenes where, over the period of those five days, ¹² the 7.500 men and boys were murdered.

Now, in looking at the nexus argument, the Defence's argument is very simple. They're suggesting that the north and the south, the Zvornik and the Bratunac, are basically two separate criminal events and that can be tried separately, and that if there are any similarities or nexus between them, they're willing to stipulate to those.

Now, let me tell you what the problem with that is, and again I could talk for days on this, but I want to just emphasise the two or three critical points which I think will illustrate to you why it's absolutely impossible and inappropriate to try this twice. First of all, and what is the most clear, and you can see it from the indictment, that Colonel Blagojevic is charged in the indictment with the crimes that are committed both in the southern area and the northern area. So Colonel Blagojevic, the indictment includes everything for him. That includes Potocari, where at least a hundred people were murdered on the 12th and 13th; Bratunac, where at least 50 to a hundred people were murdered on the 12th and 13th; the Kravica warehouse where on the 13th, over 1.000 people were murdered; the Jadar River incident where 16 people were murdered; and the Cerska valley where 150 people were murdered. And these murders I just mentioned, the Cerska, the Kravica, and the Jadar River are all very systematic murders where people were assembled systematically, they were bussed to locations of their murder, and they are killed by people with automatic weapons. And in both Kravica and in the Jadar -- in Cerska, bulldozers were used to dispose of the bodies. This is exactly the same way the crimes occurred in the north, by the way. Systematically moved to ¹³ the detention sites, moved to the execution sites, and then murdered by execution squads and buried by excavation equipment. So we see the same kind of crime happening in the south as we do in the north. And the reason Colonel Blagojevic is charged with the northern crimes is that he and his troops helped facilitate the capturing and separation of the Muslim men and boys in Potocari and shipped them up to the north, knowing that they were going to their deaths. And in addition, it was his troops, on the 13th and 14th of July, that were assisting the people along this road, what we call the Bratunac/Milici road. This is the road where on 13 July, 6.000 men that were fleeing the Srebrenica enclave, you can see this red line, were blocked by the forces of the VRS, the Bratunac Brigade and other units, the MUP, several other units that are mentioned in the indictment. And it was again Colonel Blagojevic right in the heart of his area that he is responsible for and his troops that helped facilitate the capture of those people. And again, shipping them off to Zvornik with full knowledge that they were going to their deaths. So when these 7500 men are killed up in the Zvornik area, they have been sent there to their deaths by Colonel Blagojevic. And in fact, it becomes even more clear from the evidence, as we've stated, that Colonel Blagojevic is involved in the Pilica crimes because his units are up there in Pilica and at the Branjevo Farm, actually taking part in the execution. So he's clearly in charge with both sets and all the crimes. And so now, when we look at Obrenovic, Obrenovic is charged in each of the crimes in the north, and these are the same crimes that Colonel Blagojevic is charged with. So at the very minimum, I would ^{14BLANK PAGE 15} have -- if I tried this separately, the north would get tried twice, because Blagojevic is just as big a part of the north as Colonel Obrenovic, because he is the one that shipped the people up there, and his units were up there helping the north slaughter people. Now -- so that's the very minimum, and that's the clearest example of why these cases have to be tried together when we're talking about Blagojevic and Obrenovic. But as Blagojevic is related to the north, Obrenovic is related to the south. And one of the clearest examples of that is that on the 12th of July, when the VRS troops were assembling along the Bratunac/Milici Road in preparation to block this column and start taking people and sending them to their deaths, we have an intercept where Colonel Obrenovic is helping arrange and coordinate the troops along this road, the various troops. And he mentions them by name, the 65th Protection Regiment, the MUP, the 5th Engineers, the troops that you will become very familiar with as this goes on. But he is actually coordinating, therefore has to be in full knowledge of, at the very minimum, the military situation that's going there. And this is on 12 July. So this is just one example of his involvement down here. But perhaps the most important of Obrenovic's involvement and the Zvornik Brigade's involvement in this crime is critical importance of what is going on in Bratunac on the 12th and 13th of July. And this is where General Mladic is meeting with Muslim representatives and DutchBat representatives. This is where he is telling the Muslims that your future is in your hands, you will survive or disappear. The incredible explicit genocidal language, and it is the Prosecution's assertion that it was on ¹⁶ the 12th -- the 11th and the 12th of July, that General Mladic, in association with his commanders, the Drina Corps, Bratunac Brigade people, and even the presence of Colonel Panduravic, the boss of Colonel Obrenovic, was present on the 12th in Bratunac during the time that this plan was hatched. So it's the Prosecution's submission that the plan to murder these men and boys was hatched on the night of the 11th and the 12th of July, and that it would have then been passed on by the various troops and commanders throughout the area including, of course, the eventual destination of the -- of most of the victims. And this will be a hotly contested area, what occurred in Bratunac, what General Mladic meant, who was near General Mladic, what he might have passed on to Colonel Panduravic, how much Blagojevic knew about it, what members of Blagojevic's staff were there.

I think counsel is perhaps being a bit optimistic when they suggest they will be able to stipulate to some of the critical items that are going down in the south, because it's just -- at this point, and before their knowledge, perhaps, they can say that. But there's no reasonable possibility that they will really be able to stipulate to much of this significant information.

Another very important part of this is that -- as you, I think, asked specifically -- are the witnesses. The Krstic case involved some 90 plus --

JUDGE SCHOMBURG: I beg your pardon. When you say you gave us a lot of your points as regards the joinder between Blagojevic and Mr. Obrenovic, but what about Mr. Jokic? Could you please go into some ¹⁷ more details. Unfortunately, we have a difficult situation that we hear a very interesting contribution from your side, and of course the Krstic decision is now public domain. And we are aware of what your case will be. But as regards the concrete contributions of the accused in this case, I should like to hear something more about especially the alleged participation of Mr. Jokic.

MR. McCLOSKEY: Thank you, Mr. President. Yes, Mr. Jokic is a -- is the engineering staff officer. He was a major at the time and was one of the members of the command staff of the Zvornik Brigade and was in charge of organising, making recommendations to his -- to the chief of staff and to the commander for the use of the assets involved in engineering work. And in the context of this case, that means digging equipment. And for -- as you will be able to see from this, some roughly 5 to 6.000 people in some four to five initial mass graves were dug by the engineering unit, and it's very clear we have those records. And Mr. Jokic was the one that was in charge of making recommendations to the commander how that equipment is used, and then making sure that the commander's orders are followed in the use of that equipment. So he would be very involved with the entire process of digging the mass graves. And when you're going to kill some 6.000 people in the Zvornik Brigade area, burying them is a critical part of the murder as the vehicle outside the bank is a critical part of the getaway. In fact, in this case, at Orahovac, the engineering equipment was digging the holes while the murders were occurring, and the engineering soldiers were using their lights to illuminate the victims that were being slaughtered, and they ¹⁸ were burying people at the -- shortly after they were being killed. So that is the -- you have Major Jokic heavily involved in the facilitating and the planning of this burial operation, is associated with the executions that were occurring at the same time. And so as a staff member reporting directly to the chief of staff, Obrenovic, and his commander, Panduravic, who was not there at the time, was down fighting in Srebrenica, he plays the same kind of significant staff officer role in these northern crimes as the other officers and the staff that would have been related to it.

In addition to his position as the person that would have overseen the burial operations and made sure they occurred in a timely manner, according to Obrenovic's orders, he was the duty officer on the 14th of July. And a duty officer at the headquarters is responsible for communicating with the higher command, as they call in. They are supposed to know everything that's going on in their area so they can communicate through a central channel. You'll hear in more detail exactly what that job is, but what it did is it put Major Obrenovic at the headquarters of the Zvornik Brigade on the 14th of July. And this is the day that the first mass executions occurred in Orahovac, where about a thousand people were butchered a short distance away from the headquarters. And there's a series of intercepts where Mr. Jokic is speaking to -- well, for one party, the security officer Mr. Beara who was the main staff officer that was in charge of implementing and assisting in this operation, as well as others. And so it is the combination of his knowledge and passing on communication and assisting the process in that way, and his ¹⁹ responsibilities of engineering officer, that bring him into this case. And so the arguments basically that the Zvornik Brigade and that Colonel Panduravic were involved and had to know about what was going on in the south to be prepared for the north apply equally to Mr. Jokic, though since he is not a commander, and he wouldn't be expected to have the same degree of knowledge as Obrenovic, except that on the key date of the 14th, he is the link of communication. So he's clearly going to be in the chain of information.

So when I speak of Zvornik, I should have made that clear. I meant that they both are -- they are both senior officers, part of the command staff, and they should both be very well aware of this process and what's going on.

Also, regarding witnesses: As I was mentioning, in the Krstic case there was over 90 witnesses. With 92 bis, the fact that we have a lot of those witnesses that testified and were cross-examined, I hope to be able to reduce that number to about 30 or 40. That will largely depend on my ability to communicate with the Defence and agree on certain things, because, as you know, they can object to 92 bis and insist on cross-examining people in certain situations. And if that occurs, I would probably choose to put those witnesses on in direct examination so that the Court sees direct and cross-examination, the nature of the system here. So I will have better numbers for you once I speak to Defence counsel.

There's also many issues that we may reach agreement on. The intercept issues, we had some ten witnesses and they took over a week, ²⁰ perhaps two weeks at Krstic. I believe, from my initial conversations, this counsel may take a different approach in challenging the intercepts, and we may be able to reduce those witnesses. But in any event, I hope to get this down to 30 or 40 witnesses, and of those 30 or 40, those will be the key witnesses that I think you need to see in order to understand the entire process.

Many of these witnesses are critical to both the north and the south. The best example is the heart of this case. The heart of this case are eight to ten survivors, Bosnian Muslim men that were systematically moved from Potocari or along the road to various murder sites and shot, many of whom will testify with bullet holes in them. Others just got lucky and managed to crawl out from underneath the pile of corpses. And these people will have to testify about both sides, because they get captured or separated down in the south, down right under Colonel Blagojevic's nose, and they get transported up to the north, where they tell about what happened to them. And what's critical to them is not only does one of them identify the Zvornik Brigade unit, but they also provide one of the critical and underlying themes of the Prosecution's case, and that is the organised and systematic and joint nature of this operation. So they have to be called twice, if we do this twice, or three times if we do it three times, and there's just no way around that. Now, there's other very important witnesses where the same thing happened. Mr. Richard Butler testified for five days. He's the one who helped the Court lay out the documents and gave his interpretation on the documents, mostly the military documents and the intercepts. He took some ²¹ five days. And the documents and the intercepts, they begin -- well, they begin in 1992 and they go all the way through 1996. But Mr. Butler, as an analyst, would never try to talk about one set without the whole set. His testimony wouldn't make sense. And you wouldn't want to have to read his testimony for part of it and then hear his testimony on the other part. You've got to hear all of his testimony. So Mr. Butler again, in any case tried alone, would have to testify for five days, maybe more, each time. The same thing is true with many of the Bosnian witnesses that witnessed various things, the DutchBat witnesses that are the witnesses to the key events in Bratunac and Mladic, and the meetings there. They go to the critical subject of the joint operation, the systematic operation, the fact that they were all working together.

So just about everyone of the 30 or 40 witnesses would have to testify in each of the cases. I'm sure there are some in that group that might not, but basically this case would have to be tried several times. As a final point -- well, you've also asked the time. That's again difficult, because we just don't know how much the Defence will be able to stipulate to and how long they will cross-examine the witnesses. It's been a while since I've had a multi-defendant case, and everyone cross-examining can take a long time. However, I'm hoping that the Prosecution case can be presented in three to four months, and the Defence case is hard to guess. Hopefully shorter. That would be my guess on their ability or their need to call numerous witnesses. As a final point to the joinder of the sort of -- what I, out of convenience, call north and south, but I don't want to give you the idea ^{22BLANK PAGE 23} that they're separate, but the Defence, three honourable men, have had a lot of time to tell you how their clients would be prejudiced by this case being joined, and I didn't see anything in any of their documents showing how they would be prejudiced. The guts of their argument is: These are two different things. They should be tried differently. But how are they prejudiced? And we know how the Prosecution would be prejudiced: the time, the effort, the victims. And so fundamentally, I think this is a clear issue that these cases should be joined. They have to be joined. Now, the issue regarding obstacles. This, as I'm sure you understood from the motion that I took great pains to respond to, very carefully -- and the reason that file is so big is because you've got the statements of the people involved in the allegations that the Prosecution should have done something differently. I took great pains to try to explain to the Court exactly what we were facing at the time and why we made our decisions.

The Defence basically claims that there was a massive or a huge conflict and that we deliberately -- or that for some reason, for our own benefit, chose to ignore that and go on and interview people. Well, I think they're mistaken, and I think that once you look at the record, you can see that what was going on there was three -- two senior officers and a junior officer that had worked together in wartime - and there's no closer bond than wartime soldiers, even if they're not friends - and they're working together with another lawyer in order to provide a unified defence after one of them, Mr. Jokic, provided some information, implicating, in a vague way only, Colonel Obrenovic. And this -- posed ²⁴ with this issue, it was clear that they were doing this knowingly and they were acting together, and there was really, in my view, nothing to say to the Defence at that time. If I had said anything to the Defence, it could have raised the spectre that somebody, like Mr. Jokic, was either cooperating with us or providing information against someone, and in RS at the time, under the context of the murders that occurred on that soil, we had a definite and real concern for the safety of these people. Now, we also have different cultures at work here, and the culture of the UN has been to have investigators working together with lawyers. You may, coming from cultures, find it a little odd that the Prosecutor is down there questioning people. This is part of the culture of this institution, it's part of the culture that I grew up in, and I have faced this situation several times, usually in the context where several police officers have been part of a crime together. And mostly you see the union lawyer comes in trying to represent each of the officers, despite the fact that they may have at one point said something a little differently. And in those situations, in the investigative stage, it's clearly to the benefit -- unfortunately for the Prosecution, it's to the benefit of the various parties to coordinate their efforts. And it was impossible for the Prosecution to get in there and suggest that at that stage something should be done differently, though I firmly agree with the Defence that the Prosecution does have a duty. If we see a Defence attorney doing something unethical, to the detriment of one of their clients -- for example, if it appeared to me that the Defence lawyer here was representing Mr. Jokic's interests and trying to set up Mr. Obrenovic, we ²⁵ clearly would have put a stop to that. That's not what we saw here. We saw three people here getting together, trying to put on their best face, and at the investigative stage, that is something which is difficult to deal with, but we did the right thing. Now, at the trial stage, problems can result; however, I think we clearly do not see the lawyer involved in the courtroom today, and so we don't have that problem any more. We don't have the potential conflict any more.

So let me go to, I think, what is the real issue here, is -- and I think we can look to our own Rules, 82(B). Is there some prejudice to the Defence based on this joint representation of the Defence counsel in this case? Again, like the situation of the joinder of the other two, Defence counsel, having had a lot of time to think about this, have not provided any prejudice. There's nothing that they say that I could make any sense out of that provided prejudice for this trial to go ahead. Counsel for Obrenovic suggests that he might have to call the lawyer that was representing both at the same time; however, I've never in 20 years seen this happen. Not that it can't happen in the UN, but this would be a very rare item, to try to question a Defence counsel, whether it be one case or two cases, and question him on the communications he had with a client. This does not appear to me to be a reasonable possibility, and I don't see how it fits into a prejudice anyway. And I see no other allegations of prejudice or any other problems, aside from the suggestion that there's a spectre that something might happen at trial, and I don't know what that might be. Anything can happen at trial. Things do happen at trial. But I don't see the prejudice. ²⁶ I've probably talked for too long, but if you have any other questions on any of these points ... I think it was fully briefed, and again, there are different cultures involved here, but if I can answer any of your questions on any of these subjects, I certainly will. Thank you.

JUDGE SCHOMBURG: Thank you very much. Now we should give the opportunity to a response to the Defence counsels, and once again, we should start in alphabetical order. This will say we should start with Mr. Obrenovic's Defence counsel, please.

MR. WILSON: May it please the Court, Mr. President, Your Honours, Mr. McCloskey, Prosecution staff, Mr. Karnavas for Mr. Blagojevic and Mr. Stojanovic for Mr. Jokic.

I speak this morning, of course, only for Mr. Obrenovic in this case. With regard, I will also do my very best to confine my remarks to the outline suggested by the President and I will not try to repeat everything that has been said in my brief. We have little to add to what was said there on the merits of the motion, and we rest on that. With regard to the prerequisites of Rule 48, Mr. Obrenovic has acknowledged from the beginning in his brief that the Rule 48 would normally result in a joint trial in this case. We have said so. We have nothing to add to that. That does not mean, of course, that Mr. Obrenovic agrees with all of Mr. McCloskey's representations this morning as to what the evidence is or as to what the respective roles of the parties are. We reserve that for trial and we will very definitely have much to say about that at the appropriate time.

We will also repeat what we said in our brief regarding the matter ²⁷ of stipulation. I would say what I have said before in Court before Judge Hunt, before Your Honours were assigned to this case, that as for Mr. Obrenovic, he has no desire to lengthen this trial any more than necessary. It is our intention to focus on those matters which are of importance to us, and that's where we will direct our attention. Mr. McCloskey says that our offer to stipulate cannot be relied upon because we don't know everything there is to know. If we don't know everything there is to know, it's because we haven't been told. We are looking at everything that Mr. McCloskey provides us very conscientiously, and he has been very forthcoming in providing us with those materials. Based on what I have seen so far, I will repeat what we have said in our brief, that we believe that if these cases were separated and tried separately, there is much of the matters which precede the arrival of the prisoners in Zvornik which Mr. Obrenovic would be willing to stipulate to. I say that again.

As to the joint hearing, we also think that it is important with regard to determining possible separation of these defendants, should the accused [sic] prevail in their motion this morning, that even based upon Mr. McCloskey's representations this morning, it appears to us that the case against Mr. Jokic - and I, of course, am not speaking for him. He has his own lawyer - but it appears from what we have heard from Mr. McCloskey that that is a very discrete case and that it would not be difficult to separate Mr. Jokic for a separate trial. With regard to the obstacles, again we have argued in our briefs what we consider the problem is here, and that is a conflict of interest. ²⁸ On October 19th we appeared before Judge Hunt in another preliminary matter, and at that time Mr. McCloskey stated, with regard to the possibility of a conflict of interest, something that we quoted in our brief. He said that it became clear with the interviews that there was a potential conflict of interest. Now, from October 19th, when there was a potential conflict of interest, a very real one, apparently, in the Prosecution's mind, we are here today on January 14th [sic], and instead of a conflict of interest, there is somehow a concerted defence action represented by Mr. Simic representing these two men. We can only submit that if Mr. Simic's intention was to present a concerted defence on behalf of Mr. Obrenovic, we wish that he had done a better job. With regard to the bilateral plea bargaining, which the Court mentioned is something that you wished us to address, we have no way of knowing, of course, what plea bargains -- Mr. Obrenovic, that is -- has no way of knowing what plea bargains may have been reached or may be in consideration by other defendants. Everyone has the right, of course, to talk to Mr. McCloskey, and we appreciate that fact. However, in filing our motion originally, we did ask the Prosecution if there was a plea bargain between Mr. Jokic and the Prosecution, and we were told by Mr. McCloskey that he could not respond to that, and so our motion was filed with that information. We understand from the filing, which he has placed in the Court now in response to our original motion, that it is his contention that no plea bargain has been offered to Mr. Jokic. Had we known that when we filed our motion, our motion might have looked somewhat different. ²⁹ But with that, the accused Mr. Obrenovic, as I have said, relies upon the documents which we have filed with the Court. Those are our views of the matter. And we will, of course, abide by the Court's decision. Thank you.

JUDGE SCHOMBURG: Thank you. Defence counsel of Mr. Jokic, please.

MR. STOJANOVIC: [Interpretation] Your Honours, my learned colleagues from the Defence Bench and from the Prosecution, I will mostly be repeating what I have said in my brief, and I would also like to add certain facts that stem from what my learned colleague Mr. McCloskey said, and which indicate that there is no need for the joinder of trial or joinder of charges in the indictment.

The brief filed by the Prosecution and the opening remarks presented by the Prosecution, and as to your question as to the role of my defendant Dragan Jokic in the joint common transaction, I would like to clear the role and relation of my defendant Mr. Jokic to Colonel Obrenovic in the southern zone, in the Bratunac area of responsibility, and the relation between the defendant Jokic and the northern area, or the Zvornik area of responsibility. From the briefs and the contents of the indictments, the Defence for Mr. Jokic does not see a single element of a common transaction in this, or any activities or active -- active participation of Mr. Jokic in the events in the Zvornik Brigade area of responsibility. There is no passive involvement either. In other words, there are no omissions on his part. There is nothing that he should have done in light of his position in the Zvornik Brigade command. He was the ^{30BLANK PAGE 31} chief engineer. He had an advisory role. He was to give advice pertaining to the sphere of engineering to the commander of the Zvornik Brigade. The Defence counsel for Mr. Jokic maintains that there is no common single transaction that would connect Colonel Obrenovic -- sorry, Colonel Blagojevic and the charges that are levied against my client, Mr. Jokic.

As regards the procedural economy issue and the issue that perhaps there will be need to call certain witnesses on several occasions, we, of course, understand that Mr. Butler will have to be heard in all trials, during the trial of Mr. Blagojevic and Mr. Jokic. Because from his testimony in the Krstic trial, he can see that he touched upon the issue of the use of the engineering equipment from the Zvornik Brigade. However, in light of the fact that the Prosecutor said that there would be 30 to 40 witnesses heard, it is obvious that the Jokic case would be burdened by the testimony of witnesses who would not be testifying as to the actual responsibility of the accused Jokic. There are quite a few such witnesses.

So the reasons of economy point, that it would be much more efficient and justified not to have a joint trial of the accused Blagojevic and Jokic, in practical terms, based on what I have just said, the time needed for a joint trial and time needed for two separate trials would, in effect, be the same.

I think that it may be germane to say something more in light of what the Prosecutor has said about the proposed joinder of trials. In several charges, in several counts in the indictment of -- against my ³² client Mr. Jokic, the criminal responsibility includes planning, inciting, ordering, committing, or aiding and abetting. This is contained in several counts. According to the contents of the same indictment and the statements that he has given to the Prosecution in full cooperation, he never said anything that would amount to any planning, inciting, ordering, or committing; quite the contrary. In the opening remarks of Mr. McCloskey, we heard that he repeated several times that Dragan Jokic, as a member of the Zvornik Brigade command, knew what was happening in the area of responsibility of the Zvornik Brigade.

Actually what does it mean, he knew what was happening? A lot of people knew what was happening. We see our Defence as being based on defending Mr. Jokic against accusations that he had done something that he -- that he was not supposed to do or that he failed to do something that he had to do. The very statement that my client knew something brings into question the proposal for joint trial with Colonel Blagojevic. I think that the arguments in favour of a joinder of trial as to what was happening in the southern area of the Drina Corps area of responsibility, if this term is indeed used at all in the military, so in the southern part of the theatre of operations, cannot be -- that my client cannot be charged with these events; and particular, not in the way in which it was done in the draft amended indictment. This is the reason why, bearing in mind what you, Your Honours, have said at the beginning regarding the common transaction, the number of witnesses, and the expected time of trial, that none of these elements speak in favour of joining the trials. ³³ The second thing I wanted to say in my presentation has to do with the joinder of indictments against Lieutenant Colonel Dragan Jokic, my client, and Colonel Obrenovic. In our brief, we fully supported the arguments about the conflict of interest presented in the brief of my colleague Mr. Wilson, so I don't need to repeat that now. But I also feel that it would be unadvisable to join the two indictments. However, I see that my -- that the points I wanted to make as regards the joining of trials with Mr. Blagojevic, they would not be germane to this, so I don't want to repeat them. Let me just conclude by saying that it would be much more efficient and economical to have the trials of -- to have -- to try Mr. Jokic separately from the other two defendants.

JUDGE SCHOMBURG: Please allow me an additional question. It was mentioned already by your colleague. Is there any kind of planning for plea bargaining at stake?

MR. STOJANOVIC: [Interpretation] Your Honours, I did not say anything in my opening remarks because I felt that we would be discussing Item 2 on the agenda only later, during the status conference. But there is no problem. I can say now that after I have taken upon myself to defend Dragan Jokic, I have had two official discussions with my learned colleague Mr. McCloskey. We discussed the possibility of a plea bargain, that is, that my client would plead guilty to some of the charges, and these discussions are -- two counts in the indictment, and these discussions are still ongoing. And let me tell you that I have been working in the field in Zvornik for three months now, this is the area where my client lived and worked, I talked to over 30 potential witnesses ³⁴ in the course of my investigation, which was aided by an investigator that we retained. I have been informed, and this has been confirmed by Mr. McCloskey, that the Prosecution has also talked to some very significant witnesses who are very important for the determination of the truth, and this is very important for my client, Mr. Jokic. I mean primarily, the officers in the Corps Command of the Zvornik Brigade. I could not get their statements, but they confirmed that they have talked to the Prosecution.

In November, I spoke -- that was my latest conversation with Mr. McCloskey, and the agreement was reached for me to prepare for further discussions with Mr. McCloskey, and that the deadline for my decision would be roughly the 1st of February. So after the interviews I will carry out in the field, and after talking to my client and Mr. McCloskey, I will then take -- make the decision. I would like to ask you to give me this time in the interest of justice and proving the response -- the actual responsibility of Mr. Jokic, we will be open to any form of cooperation with the Trial Chamber. Thank you very much.

JUDGE SCHOMBURG: Indeed, it seems, first of all, a question of the status conference, but please understand that it doesn't make much sense when we decide on a joinder and suddenly, we learn that one case or another case will have different future. And therefore, it is necessary to know about this, and especially to know about your client's position to the accusations here. Because this could be, indeed, an obstacle to joinder when we have a different approach of the individual accused.

MR. STOJANOVIC: [Interpretation] Your Honours, I fully understand ³⁵ the timing of all that is going on, but we really hadn't known that this conference would be taking place now, at the time of our discussions with the Prosecutor. We understand what you are saying, and we'll use the time at our disposal to continue our discussions with Mr. McCloskey. As a responsible Defence attorney, I will continue also talking to my client. And for that purpose, after we get the detailed information and the statements of these witnesses who I have mentioned, who are extremely important, I kindly ask you to allow us this time we need to finalise our discussions with the Prosecution. Thank you.

JUDGE SCHOMBURG: Well, thank you very much. And now to the -- Judge Kwon.

JUDGE KWON: Yes, I would like to ask Mr. Stojanovic these questions, if I may. Having heard that, what kind of specific harm or prejudice your client will undergo if you have a joint criminal trial rather than a separate trial? Could you just articulate more on that.

MR. STOJANOVIC: [Interpretation] Your Honour, when I was preparing for today's conference, I read carefully Rule 82(B), and I asked my client what would be the harm in the joinder of trials? We estimate that a joint trial implies a certain duration of time that Dragan Jokic would be spending in prison. Also, hearing the testimony of a great number of witnesses who are not at all relevant to the charges levied against Mr. Jokic, and what is very important, and we want to emphasise it, are two amendments of the indictment which continue to place Dragan Jokic in a constant which we do not plan to challenge. Placing Dragan Jokic there, the chief of engineering, as a person responsible for what -- for what ³⁶ happened in the Bratunac Brigade area of responsibility would be misleading. It would be false to put him in the centre of these well-planned, well-programmed actions. Dragan Jokic had nothing to do with them. He didn't and was not able to instigate or aid and abet. He had no role in issuing any orders.

Viewing the context of the complete indictment, we believe that Dragan Jokic, whose role in command was marginal, we believe that joinder would place an unnecessary burden on my client. We believe it is, therefore, wiser to determine his specific responsibility, determine his specific role; and based on the facts that we establish at trial, determine the degree of his guilt. I don't know if that answers your question.

JUDGE SCHOMBURG: Okay, thank you very much for your considerations. May we now come to the Defence counsel of Mr. Blagojevic.

MR. KARNAVAS: Good morning, Your Honours again. We rest on our briefs. I have nothing further to add.

JUDGE SCHOMBURG: Okay. Indeed, this is also a possibility to answer questions. May I ask you about the possibilities you see as regards possible plea bargaining or change of attitude as regards the guilty plea of your client?

MR. KARNAVAS: Thank you, Your Honour. We will most definitely go to trial.

JUDGE SCHOMBURG: Okay. Thank you for this clear answer. But as I mentioned in the beginning, the accused are, of course, not objects in ³⁷ this case; they are subjects, and I would now enjoin to hear the personal opinions of the three individual accused on this issue, whether they had in their initial appearance -- of course, we are aware of this -- they made a clear statement by pleading not guilty.

Is there any change of this approach, and do you have any special own comments on the question of a possible joinder? Please, Mr. Jokic, would you start.

THE ACCUSED JOKIC: [Interpretation] Your Honours, the same as my Defence counsel, I hold the opinion that --

JUDGE AGIUS: I'm sorry to interrupt, but I wonder if you are Mr. Jokic.

THE ACCUSED JOKIC: [Interpretation] Yes, I am.

MR. McCLOSKEY: Excuse me, Mr. President, I'm sorry to interrupt at this point, but -- and it may be from my culture again. But prior to receiving any statements from these accused, could they be at least allowed to consult with their attorneys.

JUDGE SCHOMBURG: Normally, it is the case, and it goes without saying, and I don't like very much to be interrupted by another party. Please go on.

THE ACCUSED JOKIC: [Interpretation] The same as my Defence counsel, I object to the joinder of indictments because I believe that many things that are charged to my -- my colleagues are charged with do not pertain to me. I was an officer, the 13th officer, in the chain of command in the Zvornik Brigade, and I provided all the information required by the Prosecutor as to who I was, what I was. And I cannot ^{38BLANK PAGE 39} accept a joinder of indictments. I would like to consult with my lawyer some more, if you can allow me some additional time during these proceedings for that purpose, and then perhaps I could give you an even more specific answer.

JUDGE SCHOMBURG: Mr. Blagojevic, please.

THE ACCUSED BLAGOJEVIC: [Interpretation] Your Honours, I stand by my previous plea of not guilty. As for the joinder of trials, I adhere to everything stated in the brief filed by my lawyer.

JUDGE SCHOMBURG: Thank you. And now, please ...

THE ACCUSED OBRENOVIC: [No interpretation]

THE INTERPRETER: The interpreters cannot hear anything.

JUDGE SCHOMBURG: The interpreters cannot hear anything.

THE ACCUSED OBRENOVIC: [Interpretation] Your Honours, I have nothing to add to what my lawyer has already said.

JUDGE SCHOMBURG: Okay. Thank you. Is it necessary to have any arguments in rebuttal by your side? Especially I would appreciate to hear something of the alleged unnecessary burden, as it was said, of 30 or 40 witnesses with respect to Mr. Jokic.

MR. McCLOSKEY: Thank you, Mr. President. In respect of Mr. Jokic and the crimes in the Zvornik Brigade, the Engineering Unit buried some thousand people at Orahovac, about a thousand people at Petkovci, about 800 at Kozluk, about 1.200 at Pilica, from the 14th of July to the 16th. These crimes are being charged against Colonel Blagojevic, so the case against Colonel Blagojevic will involve all those crimes, the same crimes that Mr. Jokic will be involved in, so they would necessarily involve the ⁴⁰ same case. So that's point one.

The second point is: In order to understand the crimes of the Zvornik Brigade and the roles of the staff of the Zvornik Brigade, you must understand what happened on the 6th of July through the 13th of July from Zeleni Jadar to the north of the Bratunac Brigade. It's absolutely critical to the case. I have to call those witnesses in that case against Mr. Jokic so that we can understand Zvornik. We can't understand Zvornik unless we understand what General Mladic, especially, was doing, and what he was saying to his troops, his Drina Corps people, and how they were gathering together, how they formed this plan, only the end result, which was the detention and the murder in Zvornik.

So those are the critical points. And something I failed to mention but we did deal with in our brief: Each of these men have been charged in a joint criminal enterprise, where it is incumbent upon the Prosecution to prove the entire joint criminal enterprise. So those charges would be in place individually in any event and we would have to prove those charges, though we wouldn't be doing it just for the sake of doing it. It's our firm belief that it has to be done in order to understand the whole crime.

I probably have said that enough, so I don't need to say that again, though I didn't respond to your question about potential plea bargains. I missed that. So let me do that. It is my practice, and has been my practice in dealing with Defence attorneys, to always be open to the potential for a plea bargain, and I have been open to Mr. Wilson on that point, I have certainly been open to Mr. Stojanovic, and he has been ⁴¹ open also, as has Mr. Wilson. But really, beyond that, any details, there has been nothing firm, nothing -- no give and take, no offer, really nothing. Everyone's working on understanding their case and seeing what the situation is. Because Mr. Karnavas and I haven't had a chance to see each other, I don't think we've talked about this, but I think I just got his message and his response. But I'm sure he'll keep an open mind and we'll be able to talk on that point also.

JUDGE SCHOMBURG: Okay. Thank you very much. I see the case should be adjourned now, and we'll start at precisely 12.00.

--- Recess taken at 10.43 a.m.

--- On resuming at 12.06 p.m.

JUDGE SCHOMBURG: Please be seated. We want to proceed. After intensive deliberations, the Trial Chamber has decided. The Trial Chamber grants the motion of the Office of the Prosecutor and orders as follows: The indictments Prosecutor versus Obrenovic, Prosecutor versus Blagojevic, and Prosecutor versus Jokic, be jointly charged and tried; second, the Registry designate one unified case number to the joint case forthwith; the Prosecution file a joint indictment immediately, and no later than seven days from the date of this decision.

This Trial Chamber was seized of a motion filed on 11 September 2001 by the Office of the Prosecutor for an order that the accused Obrenovic, Blagojevic, and Jokic, who were currently charged in separate indictments, be jointly tried in one unified indictment. Having looked into the merits of this motion and taking care of the arguments provided by the Defence counsel, the Chamber came to the ⁴² following conclusion: In determining this motion, the Trial Chamber relies upon the allegations as contained in the Prosecution's draft proposed amended indictment of 14 December 2001. One of the core issues, the common core issues, is the alleged murder of the Muslim male population of the Srebrenica enclave, and alleged crimes occurred basically from the 12th of July to the 16th of July, and resulting in the murder of about 7.500 men and boys systematically killed in this area. The first issue for our consideration was whether the crimes alleged against each accused were committed in the course of the same transaction. By reliance upon allegations pleaded in the draft proposed amended indictment, it may be considered that there are a number of factors that can lead the Trial Chamber to find that there was a common scheme, strategy, or plan, and the accused are charged with crimes committed during the course of it.

The offences with which the accused are charged all occurred over the same narrow period of time, as mentioned, from 11, 12 July to 17 July 1995. The accused were all military commanders of the RS and the victims of the alleged offences were all Bosnian Muslims from the Srebrenica area.

The Prosecution pleads its case on the basis that there was a joint criminal enterprise with the same common purpose and design, namely, the forcible transfer to Kladanj of Bosnian Muslim women and children from the Srebrenica enclave, and the capture, detention, and summary execution of thousands of Muslim men and boys from the Srebrenica enclave, and the accused all participated in that common enterprise, of course, and, there ⁴³ was no doubt, with different contributions.

As the Trial Chamber is satisfied that it is legally possible to join the accused under Rule 48, it must exercise its discretion whether or not to join the crimes. From the allegations contained in the draft proposed amended indictment, factors favourable to joinder are, of course: There are a large number of overlapping issues in all three cases, and if the three separate trials would be held, this would entail civilian and expert witnesses travelling to The Hague on more than one occasion, and it was outlined very clearly this morning that it would mean to hear three times the same 30 to 40 victims in all the three cases, and this is, of course, not in the spirit of economic use of manpower in this Tribunal. The Court time would also be taken up in going over the same issues in these different trials. And we, on a prima facie basis, we didn't have any reasonable doubts that it would indeed mean three times a hearing, only on the Prosecutor's case of three to four months. And if we could save the time, it would already, only with regard to the Prosecutor's case, save time of about six to eight months. With regard to the question of possibly plea bargaining or change of pleas, we have to take into consideration the situation as it stands today, notwithstanding, of course, the possibility that each accused has in any point of time in future the right and the possibility to ask for a separate decision because a new approach is found possibly together with the Office of the Prosecutor. There was the idea that conflict of interest could be under Rule 82(B) an obstacle to a joinder, but the Trial Chamber is convinced that we have not to decide today whether or not there ⁴⁴ was such a conflict of interests. Even if there would be such a conflict of interests, it's no obstacle to joinder. The merits of this issue have to be decided by the Chamber hearing this case in further ex officio. These are the most important reasons for our decision. You will get the written reasoning in a very short period of time, and I would now adjourn this case for another 5 minutes to go over to our status conference. And now it's then a common status conference.

--- Whereupon the Motion Hearing adjourned at 12.14 p.m., to be followed by a Status Conference