³²²

Wednesday, 26 May 2004

[Motion Hearing]

(Open session)

[The accused entered court]

[The witness entered court]

--- Upon commencing at 3.01 p.m.

JUDGE ROBINSON: Let the witness make the declaration. You've already made the declaration? You remain subject to the declaration.

THE WITNESS: [Interpretation] I solemnly declare that I will speak the truth, the whole truth, and nothing but the truth.

MS. PACK: Your Honour, may I make a comment just before Dr. Tarabar begins his testimony. Just to say that my understanding of Dr. Tarabar's testimony today had been that he was to cover just his examination of -- his recent examination of Mr. Stanisic of last week or whenever it was, rather than going back into the matters that have been dealt with fully over, I think it was three hours or so of testimony on the last occasion. I only raise that as a concern because I just received a bundle of documentation which looks like it's more of an answer to what Dr. van den Boomgaard said in his testimony yesterday. And I'm concerned that we then go back and recover those matters which have been covered before.

JUDGE ROBINSON: Generally, I think what you say is correct. But I think it is inevitable that he will quite properly, I think, deal with some of the matters that were raised yesterday. But I think in principle, I mean, his purpose is not to provide an answer to the testimony given ³²³ yesterday.

MS. PACK: I simply make the point on a question of timing because he has testified for a long on time on matters which it would be unfortunate if they were just repeated in a different way today.

JUDGE ROBINSON: Yes. Well counsel is aware of the time limit that has been set.

Yes, Mr. Knoops.

MR. KNOOPS: Thank you, Your Honours. Dr. Tarabar.

Sorry, you were correct. We will request to go to private session.

JUDGE ROBINSON: Private session, yes.

(Private session)

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(Open session)

MR. GROOME: Your Honour, hopefully in the interests of speeding things up, I will be using the Sanction system to put a few excerpts of some relevant jurisprudence and some of the exhibits. Your Honours, over the course of these several days we have learned a great deal about Mr. Stanisic's physical and mental condition. What has emerged, what is the Prosecution's primary point to make here this afternoon is that provisional release is not and cannot be an appropriate response to the concerns raised as to Mr. Stanisic's medical and physical condition. The appropriate response is to ensure that Mr. Stanisic while in the custody of the United Nations receives proper and appropriate medical and any other care that he requires. At this juncture, Mr. Stanisic is presumed innocent before this Tribunal, and is entitled to the care that any of us would expect if in a similar situation. I will set out the Prosecution case for why provisional release is not appropriate in this case, but at the outset, I will say that the Prosecution will not oppose any suggestions or recommendations or orders the Court may direct with respect to improved healthcare for Mr. Stanisic. I would first propose to deal with the matter that I think is probably best dealt with in closed session. So I ask that we go into that.

JUDGE ROBINSON: Private session. ⁴⁰⁹

(Private session)

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(Open session)

JUDGE ROBINSON: Yes.

MR. GROOME: Your Honour, just picking up where from I left off in private session just to reiterate, there is no functioning national council on cooperation, something that should weigh heavily in the Chamber's assessment of the reliability of any guarantees by Serbia and Montenegro. With respect to the ability to have Mr. Stanisic rearrested in the event he should refuse to return voluntarily, I made this argument with Mr. Simatovic. I reiterate it again with even greater force. This would be requiring the people who were his subordinates, or some of the people who were his subordinates to go out and arrest him. I think it is reasonable to assume that many of those people are still supporters of his, probably think that he should not be facing an indictment. And it would be a rather difficult for them to go and forcibly arrest him and return him to The Hague, if that should be required.

Your Honour, with respect to the cooperation, and again I am prepared to lay it out all for the Chamber, but I would ask the Chamber to read Dr. Offermans' report. As to what Mr. Stanisic says with respect to information that he does have. None of it was -- none of that information was given to the investigators who spent days and days speaking with ⁴²² Mr. Stanisic. Before I do that, Your Honour, could I just point one thing, one of the things that the Sainovic Chamber said, the statements of the accused are important. I would draw the Chamber's attention to exhibit 9 on the issue of voluntariness. It's a public -- it's a Defence exhibit. It's a media report of -- reporting Mr. Stanisic to have said that the former head of state of security requests an urgent transfer to the Detention Unit in The Hague Tribunal because his request for post operative convalescence was rejected. One of the reasons, if he was here voluntarily at all, was because it was his belief that if he was not getting proper care in Serbia and Montenegro, he would receive better care here.

With respect to cooperation, I would point out a number of statements quoted by Dr. Offermans or summarising statements made by Mr. Stanisic. Mr. Stanisic talks about his relationship to Mr. Milosevic, having made Mr. Milosevic the most informed leader in the Balkans, of how having taken steps to make sure he had information about Kosovo, Bosnia, Croatia. He also made statements to Dr. Offermans that, and I'm quoting, he was able to resist, now I'm quoting, "the pressure of Milosevic and others for much more violent action for so long." Again, a statement that is very relevant to the proceedings before this Tribunal, something which was not given to the investigators, but was told to the psychiatrist. I put that forward, Your Honour, as evidence that what we have here is evidence of not only a failure to cooperate, but an intentional decision to withhold information and not cooperate with the investigators who ask questions on these matters. ⁴²³ The last thing, Your Honour, that I would ask you to consider is one of the considerations is the safety and the security of witnesses and how they will be affected. One of the things that Mr. Stanisic said to Dr. Offermans was the following: Mr. Stanisic states that although he had no political power left any longer, he still had vital information at his disposal due to his long years of expertise as head of the intelligence service. One of the most fundamental bits of information an intelligence service has is where people are. I submit that he still has the capacity to locate witnesses and, if he so desires, to intimidate witnesses. So that is I believe a relevant consideration for the Chamber in assessing the effect and impact it would have on the victims of this -- the witnesses that will testify at his trial.

Finally, Your Honour, I will return to my original argument: Provisional release is not appropriate remedy to -- for what -- the concerns raised by the Defence. It is appropriate for the Chamber to ensure that Mr. Stanisic receives proper treatment, maybe it requires more regular blood tests. Maybe it requires more daily observations of his (Redacted) I'd ask that maybe that be redacted since that handled in private session.

Maybe it required that Dr. Tarabar have some input into his treatment, that he be consulted, that he be furnished with copies of relevant medical records. But I submit, Your Honour, that that is the proper remedy for what is brought before the Chamber, not provisional release.

JUDGE ROBINSON: Thank you, Mr. Groome. ⁴²⁴ Mr. Knoops, how long will you be?

MR. KNOOPS: Your Honour, I will speak five minutes, and if you would allow the rest of the time reserved for me to allow the defendant to address Your Honourable Trial Chamber for a few minutes, just two minutes. So I will go down on my presentation.

JUDGE ROBINSON: Yes. Yes. Yes.

MR. KNOOPS: Your Honour, we are grateful for the time the Trial Chamber grants the Defence, and we are aware that did -- took some extra time with the opening arguments. So I will be quite brief. Your Honours --

JUDGE ROBINSON: Go ahead. Please go ahead.

MR. KNOOPS: We provided your Trial Chamber today with a list of exhibits, index, comprising 44 exhibits. 44 exhibits, lots of them are not contested by the Prosecution. And we conclude based on these 44 exhibits, first of all, there is reason to hold the presumption of innocence in the case of Mr. Stanisic. Secondly, there is an overwhelming evidence that he will respect the rulings and the orders of your Court. And there is no risk that he will flee whatsoever or influence witnesses. And thirdly, there is overwhelming evidence, we believe, based on these exhibits, that he showed quite a cooperative attitude whilst being seriously ill. And fourth, there is evidence of a deterioration of his health situation, and that the principle of effective participation may be endangered, especially when you consider (Redacted)

(Redacted) observation. My learned colleague -- ⁴²⁵

MR. GROOME: I just might remind my learned colleague. We are in public session, if you realise that.

JUDGE KWON: We are now in public session.

MR. KNOOPS: I would request the Court to go into private session.

JUDGE KWON: Private session.

JUDGE ROBINSON: Private session, yes.

MR. KNOOPS: Thank you.

(Private session)

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(Open session)

THE ACCUSED: [No microphone].

THE INTERPRETER: Microphone, please.

THE ACCUSED: [Interpretation] I thank you for accepting to review my motion for provisional release until the beginning of my trial. It was about this time exactly nine years ago after the NATO bombing of Bosnian Serb positions, because of the siege of Sarajevo, the Army of Republika Srpska reacted in an utterly unexpected and irrational way. She took as hostages and detained 400 Blue Helmets, mostly from the French, British, ⁴³¹ and Canadian units. They tied their hands and used them as a human shield, a human shield from possible air attacks.

The whole world was aghast at this. And the lives of those members, the peacekeeping mission, were at risk, hanging by a thread. The special forces of those three countries were ready to release them by force. We can only guess at what would have happened had they gone into action and how many lives would have been lost.

Serbia, too, was surprised and shocked by these events. There were very few people who believed, although it was my impression, that we on our part could have done something to save the lives of those people. Everyone knew that the state relations with Republika Srpska had been at the lowest level ever since the beginning of the Yugoslav crisis. I would use this opportunity to remind you that a year earlier, Serbia had imposed rigorous sanctions on Republika Srpska due to the refusal of their leadership to accept the peace plan offered by the contact group.

Your Honours, I had the courage in that dramatic situation to accept the role of a mediator and special envoy for negotiations with the leadership of Republika Srpska. Having been authorised by the state leadership of the Republic of Serbia, I began a difficult peace mission, and I was on my way to Bosnia. When I came there, I found the chaos of war. The political and military leaders of Republika Srpska were quarrelling. There were serious indications that the situation would continue to deteriorate. The intention was to unite Republika Srpska and the Republic of Serbian Krajina. I also found highly positioned ⁴³² representatives and leaders of other countries there, Ministers of Foreign Affairs, Defence Ministers, who were also trying to put an end to this crisis. Beyond the narrowest possible circle of top state leaders, I have never spoken about the course of the negotiations outside this circle, nor did I speak of the conditions under which the leaders of Republika Srpska agreed to finally release the hostages. If you request me to do so, I will be glad to oblige.

However, following 15 days of utter confusion and uncertainty, as well as a number of complications, I finally obtained approval from the leadership of Republika Srpska to have the Blue Helmets released. There was a press conference that was organised at Pale where I addressed the world public, saying that I brought the negotiations to a successful conclusion and that pursuant to an agreement that had been reached, I assumed responsibility for the lives of 388 members of the United Nations and I will make sure they were safe out of Bosnia. And that's precisely what I did. Having made an enormous effort and having put myself at risk a number of times, I had to collect these people literally from different locations throughout Republika Srpska and take care of the wounded and sick along the way. That's how I brought the mission to a peaceful port. I used convoys on several occasions to transport these people into Serbia where I handed them over to the UN commander or the representatives of their respective governments. Your Honours, not a single life was lost along the way. Despite threats by extremist groups and extremist individuals who said that they would stop me in my mission, Your Honours, I succeeded in preserving the dignity of every single soldier and officer ⁴³³ of the Blue Helmets. Their weapons were returned to them; all of their equipment and clothes. They were treated in a fair and humane way. All of this took 30 days. For me and my colleagues, that seemed like an eternity.

I find myself compelled to speak about this issue, and I ask to be given a chance to speak about this. Thank you for offering me this opportunity. This is but one example of the confusing historic, political, and military circumstances under which I worked as chief of a very small intelligence body. Personally, I was far from the political bodies. I was far from unlawful acts, and I have always been an enemy of all forms of extremism. I'm saying this because it is my deep conviction that in addition to my own family, each and every one of these hundreds of people and their next of kin would warmly welcome your decision to provisionally release me and allow me to go home until my trial begins. All of the other people whom I have helped in this chaos of war, I believe, share these convictions and these hopes.

If that proves to be the case, Your Honours, I give you my word of honour that I will act in a fair and honest way with the utmost respect for this Court, that I will prepare my Defence, that I will undergo intensive treatment, and I will appear for trial whenever you decide that I should. Thank you very much, Your Honours.

JUDGE ROBINSON: Thank you, Mr. Stanisic. May we deal very quickly now with the exhibits. And I propose to deal with it in this way: And depending on the kind of answers I get, I think we'll then decide whether we have to come back tomorrow. We have ⁴³⁴ the list of Defence exhibits. I wanted to ask the Prosecutor whether he had any objections to any of them.

MR. GROOME: A number of those exhibits just arrived today, Your Honour. Can I propose that in writing we list our objections to whatever exhibits and have that filed by tomorrow. This would give us an opportunity overnight to review the exhibits and handle it in a very expeditious way.

JUDGE ROBINSON: So what you're proposing is that the parties file their responses to the exhibits --

MR. GROOME: Your Honour, sorry, I haven't seen the list. I learned from my colleagues that they haven't even seen the list. So we haven't even seen the list of the exhibits yet.

JUDGE ROBINSON: Let me consult about that as a way out.

[Trial Chamber confers]

JUDGE ROBINSON: Yes. The parties will file their reactions to the other party's list. And the Chamber will issue an order as to those exhibits that have been admitted. And that should be done by tomorrow. Mr. Groome.

JUDGE KWON: Anything to add in relation to the Status Conference?

MR. GROOME: Your Honour, all of what I said with respect to Mr. Simatovic is the same as here. I just ask that that be incorporated as the report on this accused.

JUDGE KWON: Nothing from the Defence?

MR. KNOOPS: No, thank you, Your Honour. I have no special ⁴³⁵ remarks for the Status Conference.

JUDGE ROBINSON: Well, it only remains for me once again, on behalf of the Chamber, to express my gratitude to the interpreters who have rendered beyond service today.

JUDGE KWON: And the stenographer and all the staff.

JUDGE ROBINSON: Yes. The hearing is adjourned.

--- Whereupon the hearing adjourned at 7.42 p.m.