⁶⁸

Tuesday, 11 December 2001

[Open session]

[Motion Hearing]

[The accused entered court]

--- Upon commencing at 11.15 a.m.

JUDGE MAY: We will deal next with the Prosecution motion for joinder. We've had the Prosecution submissions and the corrigendum. We've also had the submissions from the amicus. We will hear first from the Prosecution, then the amicus, and then the accused, in that order, and we shall then consider the matter further.

I should say this, that having had the opportunity of reading what's in these various submissions, it's plain that there is really two issues which the Trial Chamber has to determine. The first is a matter of law under Rule 49, whether there are or is a series of acts committed together forming the same transaction. And the next matter is a matter of discretion. If we're not satisfied that the series of acts committed together form the same transaction, then, of course, the application fails. But if we are satisfied, then we have to go on to consider whether, in our discretion, we should allow it or not. Now, that appears to the Trial Chamber to be the reading of the Rule. We'll hear submissions on it, and in the case of the Prosecution, we would wish the matters to be dealt with which we referred to in our scheduling order of the 5th of December.

Yes. Yes, Madam Prosecutor.

MS. DEL PONTE: [Interpretation] Thank you, Mr. President. ⁶⁹ I shall give the floor very quickly to my colleague, Geoffrey Nice, who is going to argue particularly the points that you have just mentioned. But I would, Mr. President, like to make three points as an introduction to our motion for joinder, in a single trial, the joinder of the three indictments.

We submit that the former President of the Republic of Serbia, that the former President of the Federal Republic of Yugoslavia is entitled to a single trial, a single Trial Chamber, and a single judgement. My three points are: First of all, that we consider the accused Milosevic as the highest official responsible for the crimes committed from March 1991 in Bosnia, Croatia, and Kosovo.

Mr. President, a single trial would finally make it possible to know the truth as to the real responsibilities of the accused Milosevic, the continued criminal responsibility in time and with regard to facts without any interruption.

My last point is one concerning the thousands of victims who are demanding justice. If we are going to have three trials, one after another, we will have a delay, which, in our opinion, is not justified to give these victims the possibility of following this trial from its very beginning and which affects all of them is essential. I should like to recall here the last UN resolution of the 13th of November, 2000, Resolution 1329, that this single trial against the senior official Milosevic as an important element of reconciliation and peace. In brief, Mr. President, in the interest of justice, we urge a single trial against the accused Milosevic. Thank you. ⁷⁰

[Trial Chamber confers]

JUDGE ROBINSON: Mr. Nice, it's really a question for Madam Prosecutor.

You did refer to UN resolution of the 13th November 2000. And as it came across in the translation, the -- it is said that the resolution, perhaps - and this is where I need the clarification - spoke of a single trial against the senior official, Milosevic, as an important element of reconciliation and peace. Are you saying that the resolution itself said this? No?

MS. DEL PONTE: [Interpretation] No, Your Honour. It is the first consideration that the prosecution of persons considered responsible committed in the territory, et cetera, will contribute to reconciliation and peace in Yugoslavia. What I was saying is that they underlined that trials against persons presumed responsible will contribute. And, of course, my interpretation of that is that the fact that -- of having a single trial against Milosevic on three indictments, in my opinion, is an element which will further contribute to these considerations of peace.

JUDGE ROBINSON: Thank you very much. Mr. Nice.

MR. NICE: The Chamber has the motion for joinder which has, of course, been served on the accused. It may be that he hasn't taken the opportunity of reading it. And although I don't have the advantage - which I regret I don't have it - of speaking his language, I know he does understand English, and I will therefore speak fairly slowly in just outlining the architecture, the general architecture, of our submission so ⁷¹ that he may make such comments as he wishes to today. In dealing with our motion, our argument, I will, I hope, deal with, at an appropriate stage or stages, the various matters required of us by the Court's order.

As Your Honour has already explained, joinder can only occur where there was a single transaction, but that transaction, we argue, is both widely defined and widely interpreted in this and in the other similar Tribunal in Arusha for Rwanda. The definition, as the Chamber knows, is that a single transaction is a number of acts or omissions, whether occurring as one event or a number of events, at the same or different locations and being part of a common scheme, strategy or plan. And we have focused on the last words, "common scheme, strategy or plan," and it is, and always has been, the position of the Prosecutor and of the Office of the Prosecution that these three indictments fall within that definition. It's a matter of history and chance and so on, the three indictments happen to have been laid. It's always been the view that they were a single transaction.

Your Honour, at paragraph 13 of the motion - and I will read this out, short though it is, because it's an important paragraph - we come to the Prosecution's position in relation to responsibility. And in dealing with this paragraph, I will hope to be able to deal with the first of your requirements, namely that we deal with the theory of responsibility of the accused with respect to each indictment.

In the motion, this topic is dealt with, I trust compactly and suitably, in these terms: The three indictments concern the same ⁷² transaction, in the sense of a common scheme, strategy or plan, namely the accused Milosevic's overall conduct in attempting to create a - in quotation marks - "Greater Serbia," a centralised Serbian state encompassing the Serb-populated areas of Croatia and Bosnia and Herzegovina and all of Kosovo. This was to be achieved primarily by forcibly removing non-Serbs from large geographical areas of the territory of the former Yugoslavia through the commission of crimes, in violation of Articles 2 to 5 of the Statute of the Tribunal.

In confirmation of the fact that this is the single transaction upon which we have always been relying, I set out - and I do not need to read, but I set out - the relevant paragraphs in the three indictments: paragraph 3 in the Croatia indictment -- paragraph 6 - I beg your pardon - in the Croatia indictment, paragraph 6 in the Bosnian indictment, and paragraph 16 in the Kosovo indictment. Differences of formulation in those indictments reflect different drafters and also the fact that the Kosovo indictment was earlier in time, considerably earlier in time, and the drafting practices have perhaps changed to a degree since then. And my learned friend Mr. Ryneveld, faced with the option of a complete recasting of the indictment, chose very sensibly to stick with the original indictment which had been before the accused for consideration for a long time, and to amend it only to a limited extent. But the underlying principles in all three indictments are exactly the same.

They may perhaps be slightly fleshed out in answer to your requirement of us at number 1 of your order of the 5th of December in this ⁷³ way: Throughout, his determination was to create a newly constituted, essentially Serb state, dominated from Belgrade, to achieve this, he acted through governmental, military, and police organs. His endeavour began in Kosovo in 1989 when, building on and creating nationalism and extremism, he gained greater control over those very mechanisms that he would use to criminal effect in Croatia, Bosnia, and then again in Kosovo with devastating consequences of which we are all aware. I should add, parenthetically, his intent at any given time can be inferred from, amongst other things, what had happened before and what he must have known had happened before. What happened in Kosovo, what was done, we say, in his name in Kosovo had consequences of which he must have been aware from all that had happened before in Croatia and Bosnia. The joint criminal enterprise, of which the object was creation of a Serb state, acted by forcibly removing non-Serb populations from large areas of Croatia, Bosnia-Herzegovina, and Kosovo. The accused, acting together with senior political and military figures from within Serbia and then also from Republika Srpska, senior members of the Ministry of Internal Affairs, the MUP, the JNA and then later, the VJ, all organs over which this accused exercised substantial influence in furtherance of the joint criminal enterprise.

He provided assistance to the --

JUDGE MAY: Mr. Nice, I'm sorry to interrupt.

MR. NICE: Yes, of course.

JUDGE MAY: But before you move on to the theory of responsibility, we've looked at these indictments and you speak in your ⁷⁴ motion of a plan to establish a Greater Serbia. That's the scheme or strategy which you rely on in this motion, as I understand it. You will correct me if I am wrong.

MR. NICE: That's correct.

JUDGE MAY: Now, looking at the indictments, there's no mention of such a plan in the Kosovo indictment. We have looked to see whether there is references to a plan to create a Greater Serbia in the other indictments, and what we've found is an indirect reference, if my recollection is right, in relation to the allegations against Seselj, in one place, at least. So although you're now relying on it, it doesn't look as though it was a matter on which you relied in the indictments. Correct me if I am wrong.

MR. NICE: The draftsmen or draftswomen of the indictments were - because the matters were being dealt with in localised -- on a localised basis - may not have referred expressly to the overarching plan because there was no need to at that particular time. And I've made reference already to how the drafting of the Kosovo indictment is more markedly different from the others because of the time at which that matter fell first for consideration. But the underlying objectives, as expressed in paragraph 6 of the first two indictments and 16 of the last, that is, the last in time, the Kosovo indictment, but the first in order of preferment before this Tribunal, was in each case effectively identical; the forcible removal of the majority of Croat and other non-Serb populations from the territory that was planned to become part of a new Serb-dominated state, Croatia. The Bosnian indictment, the forcible and permanent removal of ⁷⁵ the majority of non-Serbs from large areas of the Republic of Bosnia and Herzegovina, and the purpose for that is well-established on the evidence as being linkage to Belgrade-dominated state.

The Kosovo indictment - and of course Kosovo had not in any sense formally been separated - the purpose there expressed in paragraph 16, the expulsion of a substantial portion of the Kosovo Albanian population from the territory of the province in an effort to ensure continued Serbian control over the province.

In each case, the same objective and indeed the same means is identified. It is true that at each stage, it might have been possible to have expressed the wider purpose, but it was not necessary to do so. But what we now find - and the evidence, in our respectful submission, is substantially overwhelming on this point, and I'll come to that in a few minutes - what we now find is that there was, as perhaps everyone would have recognised and known, an overall plan of which this was merely a part.

May I respectfully suggest to the Chamber this: If one takes an analogy of a domestic crime under some jurisdiction which permits joinder where there is a connection between the crimes, a local domestic court might find itself facing indictments which don't, themselves, set out the overall plan because at the time of the preparation of the individual indictments, that wouldn't have been necessary or appropriate, but then when it looks at the individual indictments and the Prosecution's application to join, it sees that they are all indeed part of the same scene and then thus qualify. ⁷⁶ So Your Honour is quite right to draw to our attention the differences of drafting, but -- and in our submission, this will be made good by witnesses of all kinds, insiders - and I'll turn to those in more detail later - international observers, political, and other witnesses who can give evidence on policy, experts such as constitutional lawyers who can explain to us the overall apparent design and effect of what was done. This overwhelming evidence will show that these individually charged, as they are at the moment, indictments fall within a plan. I drew to your attention the fact that the words "Greater Serbia" were in quotation marks, for it is, although an easy handle and one very widely used, it may nevertheless have its limitations, and we have used it only as a handle with which the Chamber might have been familiar for those purposes.

Your Honour, can I return to what I was saying shortly a little time ago. The -- and dealing still with Your Honour's requirement under subparagraph 1 of the order. His participation included - and this will be, of course, a matter of evidence - that acts of planning, preparation, and instigation in circumstances where he had a combination of de jure and de facto control, control in law, control, as a matter of fact, over governmental organs and the other groups that bore responsibility at a more local level for the commission of these crimes. The avenues of his legal authority changed over time, first as President of Serbia and then as President of the Federal Republic. The control mechanisms for other significant bodies changed over time. But what emerges as constant is the driving will of this accused controlling ⁷⁷ those bodies in fact by calculation and by control of individuals, when it was necessary, and by direct lawful operation when he had the legal reins in his hands.

Now, Your Honour, that is our case, and it's our case in relation to all three. We make the point - and I will come to it perhaps in going again through the joinder motion - that Kosovo indeed reveals the constancy and the continuation of the plan, perhaps as well as any of the other theatres of conflict and that revelation, in our submission, makes separate trial of Kosovo a fortiori, a trial of Kosovo a first trial, in reality, impossible to countenance or very difficult to countenance, because, of course, Kosovo was where things started, where he first found the ability, it would appear, to gather power through perhaps the generation of fear in Serbs that they were suffering, where he first exercised the power to persecute part of the territory over which he had influence, the Kosovo Albanians, and that of course happened before Croatia and before the Bosnian conflicts and it continued through the period of those conflicts.

Now, it is only lightly referred to at present in the Kosovo indictment for the reasons I've already given, and I needn't repeat, but it will, in truth, be impossible to understand exactly what was happening in Kosovo without an understanding - which will be given by policy witnesses at the moment - not only of what was happening in the late 1980s but indeed throughout the period of the other two identified conflicts. We make the point in our motion that what ultimately happened in Kosovo was something that was quite arguably simply a crime that was ⁷⁸ waiting to happen but that was delayed, the reason for its delay being that the International Community, in general, but the United States of America, in particular, was not prepared to tolerate - and made it clear in warnings to this accused, that was not prepared to tolerate - an extension of the fighting to that area. The threat, sometimes described, I think, as the Christmas 1992 threat was apparent to him. And so, although to the degree he was, he was tolerated for what as going on in the other two areas of conflict, he knew that simply to repeat what was happening there elsewhere in Kosovo or to repeat his plan there would lead to consequences that he could not face. And so it was that time passed until events took a turn that enabled him, in the same objective of a Serb-controlled state, to return to the same general processes, using the same bodies, as he had done in Croatia and Bosnia. I'm moving on now back to the general arguments for the motion, which I know the Chamber has before it in written form, but the Chamber will know that it's the same bodies that appear, that is, the same groups, such as the Red Berets, and so - that appear both in Bosnia and Croatia and then again in Kosovo - bodies over which he had influence and control.

The Chamber may like to know that although, of course, not every person identified as involved appears as an accused, co-accused, or identified perpetrator, the Chamber may like to know that, for example, two of the co-accused in the Kosovo indictment will feature as those involved in the earlier Croatia, Bosnia indictments. There was continuity, not only of purpose and of method but indeed of personnel. ⁷⁹ And when I come to answer one of Your Honour's other questions about the number of witnesses in this case, can I forecast what I have to say by informing the Chamber of this? One of the most important categories of witness available to the Office of the Prosecution are insiders -- is insiders. For understandable reasons, following the surrender of this accused, there has been an increasing willingness on the part of people who fall within that category of witness to cooperate with the Office of the Prosecutor. The indications we have - and I've reviewed the matter very carefully in the last few weeks since I have been here - the indications are that many of these people are going to be able to help, and whenever explored, they are able to help not just on one or two of the areas of conflict but usually, or very frequently, in respect of all three. And their ability to help in respect to all three is a further reflection of the unity of plan of which they were either observers or in which they were participators.

JUDGE MAY: Mr. Nice, the problem about all this is this: That we find ourselves in this position with you making these submissions and saying it is impossible to try the Kosovo indictment first, but the reason that we are having to decide this is because the Prosecution indicted the accused in relation to Kosovo a number of years ago and has now produced indictments on two other matters. Now, that delay causes the problems which have arisen. And with respect, it's entirely the Prosecution's responsibility that we find ourselves in the position which we are today, namely having the Kosovo indictment ready for trial and the others not.

MR. NICE: First of all, if I said - and I think I did, and I ⁸⁰ thought I was going too far at the time to say - that something is impossible, that was inappropriate. I can go no further than to say it would be extremely undesirable, in our submission, for the Kosovo indictment to be tried separately, and if there have to be separate trials, for reasons to which I will again return, highly undesirable that it should be tried first, but of course not impossible. The Prosecution's position - as I trust the Chamber will accept - was conditioned by or as a result of the availability to us of the means of investigating this particular accused. And the Chamber may rest assured that there has for years been a focus upon him, that it's only when the evidence was available that it's possible for those indictments to be preferred - and a very great deal was done, and as much as possible was done - by way of allocation of resources at every available turn to ensure that these indictments could be laid before the Chamber as quickly as possible.

As to --

JUDGE ROBINSON: Mr. Nice.

MR. NICE: I'm so sorry.

JUDGE ROBINSON: You say it would be highly undesirable to try the Kosovo indictment first. Are you going to elaborate on that?

MR. NICE: Certainly, I am. I can do it now, or perhaps if I can come back to it at a time in the sequence --

JUDGE ROBINSON: If you are going to come back to it, I would like to hear the argumentation.

MR. NICE: Certainly. ⁸¹ Now, Your Honour, I've dealt, I hope, in terms that will meet your requirement, with the theory of responsibility of this accused. One can go on, break it down further, and look at the individual seeds of conflict. But we say that the objective and the mechanisms for achieving that objective were the same in all three and that they stem from the desire of this man to have and to retain power which he wished to exercise over a state. One of the reasons that the Greater Serbia state is, in a sense, a slightly unsatisfactory term is because, of course, Kosovo doesn't make it any greater. It simply would retain. So it's really greater and/or retained.

Just to go through the other few parts of the motion that I was going to highlight, not least in order that the accused may know something of the shape of the motion - and I'm now on page 6 of the document that, I think, went to 19 pages - I've dealt with the fact that some of the actors changed and some of them didn't. And I go over to page 7 and paragraph 16. I there set out the historical concept -- context of Kosovo, which it is, in our respectful submission, essential to understand for a full comprehension of all of these matters.

The historical background relying on fear is set out at paragraph 18. And at paragraph 19, the continuing exercise by the accused of control over political bodies is set out there, perhaps most notably in subparagraph (a), with the use made by him of the SPS party and the placing of people loyal to the party in positions of authority. But, Your Honour, the rest of that paragraph, in the interests of brevity, I must ask to be taken as read. ⁸² Paragraph 20 is a point I've already made, namely that - and I pick it up from the second sentence - through the successive conflicts, the accused had the benefit of hindsight. And the structure and operation of the participating political institutions, it should say, can only be properly understood through a cumulative picture of the conflicts. And as I already indicated, we will adduce evidence through experts on these topics.

The media features in the indictments and in the supporting material that Your Honour may already have had to a limited degree. It is an area of evidence which we expect to expand beyond its present indicated level as more material becomes available, showing the degree to which there was media use and media manipulation, constant, in all of the time periods with which these particular indictments are concerned. Paragraph 22, the continuing involvement and significance of the JNA and VJ supported logistically, financially, and in terms of personnel is an extremely important aspect of continuity. And at paragraph 23, the same can be said of the Serbian MUP, which included the DB. I've already identified as one of the particular linking features that the main perpetrating groups were identical in different areas of the conflict. I've dealt with a little bit about finance, but the Chamber will discover, however these trials are conducted, that the complex financial mechanism used by this accused to fund the bodies that committed on the ground the crimes was something set up right at the beginning and continued unchanged right to the end. And that evidence, we hope, will be of considerable value, although it will require, as paragraph 25 says, ⁸³ quite a weight of evidence from banks and other such -- probably just from the banks, but it may come from elsewhere as well. Paragraph 27, in one sense, says the obvious, but it's perhaps worth repeating it. This trial, these trials, whatever the Chamber decides, is concerned essentially with just two things: what it can find the accused did, and what were his thought processes at the time, what was driving him. It is our submission that the evidence overall will enable the Chamber more easily and with surer footings to find exactly what he thought at any given time and overall, and to pick particularly a part of the conflict, will be to deprive the Chamber of the very real assistance that it would have from seeing the development over time.

JUDGE ROBINSON: Of course, Mr. Nice, the Chamber will also have to consider whether that any of that evidence of earlier transactions might or might not be prejudicial to the accused in relation to later transactions.

MR. NICE: It might have to consider whether such evidence were prejudicial to the accused, but I very respectfully suggest that it would be highly unlikely that the thinking process would go that way in the end. May I explain why?

Where you have discrete crimes -- let's go back to a domestic setting. Where you have discrete crimes, whatever they may be, and in relation to crime A, the accused says something that is damaging to him but doesn't, in itself, assist the Chamber in relation to crimes B or C, then a Chamber or a Court or a jury may have to be careful not to allow itself to be infected by that early piece of evidence. But here, that is ⁸⁴ not the sort of evidence about state of mind with which the Chamber will be dealing. It will be dealing with public utterances by the accused over time, and it is highly unlikely that those will be found to be prejudicial to him if they are public utterances in the political setting or when he's speaking with diplomats or senior soldiers or something of that sort. There may be evidence from insiders explaining what his general purpose was at a particular time, but in our respectful submission, since this whole ark of events is an ark of events that covers his accumulation and maintenance of power for a single overall purpose, the Serb state, however defined or described, why then such observations which aren't, as it were, crime-particular will either be of value or they will have no value but no prejudice.

The third route to his state of mind, and perhaps one that may loom larger in bulk or be for time to reveal would be the process of inference whereby, for example, to take only one example, whatever we discover about constitutional changes affected at his behest may show about the underlying purpose that was in his mind. In our respectful submission, these things are unlikely to work -- in any sense to his prejudice. They are likely to be of assistance to the Chamber in showing precisely what was going on over time.

Somewhere in my motion I refer to a case. But it doesn't particularly matter where. It advances a rather common sense proposition under the heading of "Similar Fact Evidence," I think. But the case says this: There may be trials where it is necessary for the trier of fact to have an overall background to make sense of an immediate context. This ⁸⁵ is, in our respectful submission, par excellence such a trial.

JUDGE ROBINSON: I've read the case that you've referred to, Peckman, and your citation is to the effect that the earlier evidence would be admissible where, were it not admissible, then the later evidence would be incomplete or incomprehensible.

MR. NICE: Incomplete.

JUDGE ROBINSON: Incomplete or incomprehensible.

MR. NICE: Yes.

JUDGE ROBINSON: Are you saying that in this case, evidence of later transactions, be it Kosovo or Croatia, would be incomplete or incomprehensible in the absence of evidence in an earlier transaction, say in Bosnia?

MR. NICE: I'm not going, again, to press to incomprehensible and, therefore, impossible. I am going to press to incomplete, because without the complete picture, it will, in our respectful submission, be very difficult for a Chamber to judge this man, his doings and his thoughts. If complete, it will be that much easier.

JUDGE ROBINSON: I must tell you that a part of the difficulty I have with your theory of the creation of a Greater Serbia as the link between all three transactions is that I find it a very thin thread on which to hang the whole fabric of the Prosecution's allegations in these three transactions.

Tell me if you agree with this proposition: The conclusion that the creation of a Greater Serbia is the common link would be rendered more credible and that conclusion would be far more reliable if it were ⁸⁶ supported by a commonality on all occasions, a commonality in time and in place. Where you have that -- where you do not have that commonality in time and in place, where there is a difference in time and in place, then that conclusion to that degree becomes more difficult, in my view. And you have that difference in time and in place in this case, certainly in relation to Kosovo. It's very strong.

So that -- I think you might have difficulty in relying solely on the creation of the Greater Serbia as the thread because that alone, in my view, cannot be the common plan. Certainly, if that were the common plan and you had an event taking place six or seven years after, I think it would be very difficult to justify that. I think the separation in time to that degree would make it very difficult to rely on that as a common plan.

MR. NICE: It's helpful, of course, to know how Your Honour is approaching the problem, and I'm grateful for that. As Your Honour will see, in fact, the Greater Serbia was a handle which I've already, as it were, devalued myself. But it's the centralised Serbian state encompassing Serb-populated areas and the determination to retain or gain whatever would fall within that plan that is the way we've defined it.

As to the delay or the temporal difference as between particular Kosovo and the other two indictments, I have in part already touched this, but there is more. And here, the Chamber may have been inconvenienced by the very fact that the indictments were prepared separately and therefore the background, material background to Kosovo, hasn't been focused on as ⁸⁷ much as it might have.

But if I could help Your Honour just in this way: There is evidence not only of the general repression that was being engineered in Kosovo as early as 1990 with laws on labour relations designed to affect the employment prospects and so on of the Kosovo Albanians, the taking over the media control in July of 1990, the dismissal of Albanian health care workers again in 1990, and, of course, the abolition of the Kosovo education system also in August 1990, and then the laws in 1991, bringing police from Yugoslavia to replace dismissed Albanians and thus bringing a police domination of Kosovo.

But you will find that there is indeed evidence of a level, a lower level, of violence occurring in Kosovo as early as that period of time. And so what was happening, what may be described perhaps as low-level ethnic cleansing with police raids and Serb police joining paramilitary squads in violence in, for example, Pozaric [phoen] and in Mitrovica.

Now, I mention that because although, yes, a strict temporal change brings its difficulties, those events happening right at the early part of the 1990s, continuing with interference with human rights, we will argue, throughout the period of time of the other conflicts, and matching it, shows that although you have before you, and have for the purposes of these very grave crimes, the isolated events of 1999, in fact, they were themselves, as it were, part of an overall plan which encompassed, not just as book-ends, as we put in the motion, but encompassed and infiltrated the other events. Now, those earlier events don't need to be ⁸⁸ charged - and couldn't be charged maybe, or it wouldn't be worth attempting to charge them - because of their comparative lack of gravity, but they were utterly revealing of, consistent with, and part of what happened overall.

And so, of course, if one of the shortcomings is in the drafting, we regret that, apologise for it. If we could, when the Kosovo indictment was drawn, have fought our way through all potential legal needs, we might have done things differently, but we didn't.

JUDGE MAY: It's not only in the drafting. There is a fundamental problem, as Judge Robinson has said. How is the Trial Chamber to be assisted, or what is the relevance of, to put it another way, events in Croatia and Bosnia in 1991 and 1992 to events in Kosovo, a part of Serbia, a part of the Federal Republic, in 1999? These are - or appear to be - different events, and different considerations apply to them. Now, it may be - and you may like to consider this - that there is an argument for saying that Bosnia and Croatia should be tried together, both involving, as they do, the same type of conflict, in that they involve neighbouring states, the same type of responsibility, as alleged, it should be said, in the case of the accused, that is, acting indirectly and through others, as opposed to the case of Kosovo, which not only comes later but also involves, as far as I can see, a different type of responsibility. In the case of Kosovo, this was part of the Federal Republic of which he was the President - the accused, that is - and he was acting directly in command of the various agencies which you alleged carried out the crimes. ⁸⁹ Now, in those circumstances, there may be an argument for saying the two should be tried together but Kosovo should be tried separately. Perhaps you might like to think about that and address us on it. And there is, of course, behind all this - while I am dealing with these matters - there is behind all this the manageability of the trial. I know you haven't reached that, and no doubt you will, of course, address us on it, but the sort of trial which you are arguing for, involving some 600 witnesses and lasting - I don't know how long you anticipate, Mr. Nice - but lasting some two to three years, is not one which at the moment would appear to be very manageable.

MR. NICE: Can I deal with the first and last point? I'll deal with all three. We respectfully differ from the proposition that Your Honour advances for our consideration about the distance in time of one event from another, the lack of utility of the earlier evidence to the latter case. I think I've set out most of my arguments, but because of the way Your Honour phrased the question, I'll articulate it more particularly.

Setting on one side the fact that, in our respectful submission, it is all part of the same overall plan - which of course supports our position - in any event, in law, subject to discretion, this is a man, it may be discovered, who seeks to create or seeks to allow from time to time a distance between him and what may be shown to be his lawful duties, obligations and powers, and crimes committed, we would argue, in his name. We may find specific reference to that from many of the -- from some of the very high-level politicians and military men who dealt with ⁹⁰ him. And so whether he raises a positive defence on his own behalf or not, any Chamber would be concerned to bridge the gap between act and, we say, one of the actors, the principal actor.

What happened in his name and, we will say, clearly to be established, in pursuit of the objective led by him, controlled by him -- what happened in his name became obvious by the time of those earlier conflicts, obvious to everyone, how the policy associated with him led to the commission of these grave crimes by those over whom he exercised influence and control. It was with that in mind that I alerted the Chamber to one of the linkage facts, that it's the same bodies, the Red Berets, as an example, who we see in later conflicts, acting again to the will of this accused.

And so that earlier evidence is indeed of great value and significance and is evidence that we say the Chamber should have when it comes to consider what he knew and what he expected. It is also, of course, not just of value under 7(1) but particularly of value in relation to 7(3).

Your second -- Your Honour's second observation was about the linkage of two but not three. Of course we thought about it, but -- and this is, although I have in large part the conduct of these cases in a general way, I nevertheless have to reflect a collegiate view on these matters. As you would expect in cases of this size, we don't just make decisions as individuals, although those having conduct of trials may be expected to do so certainly in the heat of the trial. We've considered this matter very carefully, and we respectfully take the view, and press ⁹¹ this Chamber to take the view, that that would be a wholly undesirable break, preferable, of course, to three trials but in itself undesirable. And can I now return, as I promised I would, to His Honour Judge Robinson's question about why to take Kosovo first would be undesirable? I'm coming to manageability as soon as I can. Well, let me deal with manageability in a sentence, because I'll deal with that when we come to look at the statistics. We invite you to say that, in fact, this trial will be entirely manageable as a three-part trial and that there will be very, very substantial judicial economies that will result from it being a single trial. I'll make that point good a little bit more when I come to the statistics that we have put together.

Dealing with His Honour Judge Robinson's concern with my proposition that to take Kosovo first would be, in our submission, undesirable, it would be undesirable for several reasons. First, of course, it is chronologically last, and therefore if and to any -- to whatever extent a Chamber hearing it realised that it did need material from earlier trials, there would be no possibility of using any of the evidence or conclusions in an earlier trial, and all it could do - this is perhaps an administrative problem - all it could do would be to take or invite to be led evidence of that earlier trial or trials -- I beg your pardon, what would have been an earlier trial or trials in great detail and to great judicial inconvenience.

Second, there's the interest of the victims and witnesses. Victims and witnesses who suffered earlier would have their resolution, insofar as there is a resolution, by giving evidence postponed possibly ⁹² very substantially by waiting for resolution of the later trial being heard first.

Third, the first two indictments, as they are at present, the first two in time, Croatia and Bosnia, may be thought to be the more substantial and the graver. As a matter of general principle, it would be undesirable to postpone those trials, especially when they do come chronologically first behind a trial that although, of course, grave as all matters before this Tribunal are, although comes later. Finally, the Chamber will appreciate that although we don't know what, if any, defence the accused may advance, there is an entirely discrete issue in relation to Kosovo to do with the NATO bombings which may occupy a great deal of time when it comes about. Now, the counter to that - and this is a general argument that we cannot press too strongly - the counter to all that is that what was happening in Kosovo, however engineered and manipulated, to whatever extent the accused may have relied on circumstances that fell into his lap when they did, circumstances that arose to his advantage - I can't use a metaphor as bad as that when they did - and this can only be explained by seeing his conduct from the end of the 1980s right the way through to 1999 as a whole so that -- and that this argument is both positive, in that it supports the application for joinder, and significant, in that it goes to show how the evidence would become significant, in any event, if Kosovo started first, and then we'd all be in a difficulty. So in answer to His Honour Judge Robinson's point, or query to me, those are our reasons or amongst our reasons. ⁹³ Before we come to the question of management of time and judicial resources that would point both in favour of a joint trial and, if not a joint trial, in favour of matters being heard chronologically, so that later Chambers can deal with earlier material in whatever way they so decide once it becomes apparent from consideration of the material that is evident -- before I move on -- and I know that I've taken some of your time.

JUDGE MAY: Just one moment.

[Trial Chamber confers]

JUDGE MAY: Yes, Mr. Nice.

MR. NICE: Can I move to the --

THE INTERPRETER: Microphone, please.

MR. NICE: So sorry. Can I move to page 14 of the motion, the rights of the accused to a fair and expeditious trial. And I think the balance I've relied on there I've probably covered already, namely the balance between the accused having the right to explore matters that are favorable or exculpatory generally because he won't be restrained and the Prosecution's opportunity to connect parts of history that have an evidential value of the kind I've already referred to.

If we then turn to page 15 and some of the disadvantages for the accused of two trials. Apart from the inevitably much longer time period over which he will be subject to judicial process here, there are several quite particular problems that he would face exacerbated, as they may be, by his being unrepresented. Much evidence may have to be called twice. ⁹⁴ And, of course, if it is called twice, as we know, lawyers spend inordinate amounts of time trying to find inconsistencies and differences and so on. These are exercises, we know - I think he is a lawyer himself - he'll have to do, but while being on trial or facing the pre-trial phase of another trial.

At paragraph 37, I set out some of the problems of the extended pre-trial phases of these sorts of trials, because what would be, I respectfully suggest, certain if there were more than one trial is this: Those with conduct of the second trial, whether the same or a different Chamber, would not be in a position to allow the thing simply to go into sleep for the time being. They'd have to be pressing on to it to make sure it was ready. And so the accused would find himself in the position of having to cope with an extended trial simultaneously coping with pre-trial phases.

And then I come to judicial economy. But before I do, my friends who have been good enough to hand me a couple of notes to provide me a couple of things before I pass on to general arguments. Can I just check myself that I understand them and deploy them now if it's necessary? The first point I see is something that I haven't articulated. There is, indeed, a match in the situations the accused found himself in Croatia and Bosnia and then again in Kosovo, and the match, again, underlies the similarity of events and his response to them, a reflection of the identity of his plan. In each case, there was the risk of disintegration of a state, first the SFRY and then the FRY, and it was his response to the threat of disintegration, whether by the other states, the ⁹⁵ other republics - I beg your pardon - or by Kosovo individuals and separatists that led to his reaction. So there is that additional feature of similarity. And while the disintegration of the Republic was going on, the Kosovo movements that led to disintegration or the threat of disintegration were already underway. So it's a constant and continuing theme.

I've taken you to the relevant paragraphs of the two indictments but I am reminded - this may be for a matter of reference, but I'm grateful to my learned friend for drawing to my attention - that in the Bosnia and Herzegovina - the Bosnian indictment at paragraph 53, set in the context of the SDS and Karadzic - was the unification of all Serbs within one state. It is, indeed, simply another reflection in the drafting of the common theme upon which we rely, and it's all about the Serb control over territories, the Serb-dominated state to include the Croatian and Bosnian parts, Kosovo, and so on.

Can I now -- and I'm very grateful for those points. Can I now turn to the questions of judicial economy and while doing so, deal with the first five questions that the Court has asked of us specifically. The Chamber will not be surprised to know that estimates of time are difficult to make with any certainty.

The Chamber was told on the last occasion the total number of witnesses for the three indictments that might be called. I have, as one of my priorities, been focussing on, as it were, the real statistics. And in doing that, I've had to engage really in two exercises: Exercise one, looking at the evidence that may be reduced in number and quantity by ⁹⁶ either act of the Prosecution or by proper exercise of its powers by the Chamber.

Exercise two - and I've touched on this already - looking at the likely important witnesses who will be available by trial starting soon or comparatively soon who are likely to be of great value but whose testimony, again, may lead to the possible reduction of time taken. And I explain that in this way: If you have a witness, perhaps an insider, who can cover a large amount of the territory and in a satisfactory and complete way, well, that witness can, himself, lead to a reduction in the number of witnesses who might otherwise have to be called to prove the same things in an indirect way.

What I've also done is sought from my learned friends who have been dealing with the cases individually their own calculations of how long things would last. And in addition to my friends Mr. Ryneveld, Ms. Uertz-Retzlaff, there is Mr. Groome, who is not here today because he has commitments elsewhere, has been dealing with the Bosnian case. And it may be - and although this is obvious, it's worth spelling out - that the principal factor determining how long a trial or trials will take is going to be the degree to which what is called crime-base evidence has to be given in person, as opposed to by one of the mechanisms for evidence coming in in writing, in particular by under 92 bis. That issue is likely to be resolved, I dare say, in substantial part by the reaction of the accused himself, what attitude he takes to such evidence. And I can't help at all in relation to that at the moment. What we have done is to make a reasonable, we hope, forecast of ⁹⁷ the degree to which a Chamber might accept evidence of crime-base witnesses to be given by Rule 92 bis. There are arguments for saying every witness should be here in person. There are arguments for saying that if there isn't going to be challenge, it should all be by 92 bis. Striking some medium position, I would respectfully suggest that the very most, in terms of crime-base witnesses that the Chamber would be interested in hearing from in this case, would be - sorry, in this case? - for all three indictments, would be 300. That's the very most. And if one works on the basis of how long their evidence in-chief -- because it's likely to be evidence that may not be substantially challenged, if it's just crime-base evidence. If one works on the basis of them being two a day, that's a maximum of 150 days. I would hope very much that that figure could itself be reduced, but that will be a matter for determination by, if it was one Trial Chamber, by a Trial Chamber, or piece by piece, by individual Trial Chambers later.

JUDGE ROBINSON: Mr. Nice, you've actually reduced your estimate now by half.

MR. NICE: There are other witnesses as well.

JUDGE ROBINSON: Crime-base.

MR. NICE: This is crime-base. This estimate allows for some witnesses in any event to be given by Rule 92 bis. All we can do is make reasonable stabs and estimates, but one would hope that that figure might itself come down substantially further, particularly, for example, if it became clear that events on the ground were not being challenged. As I express it in paragraph 42 of my motion -- and I'll read it out because it ⁹⁸ explains, I think, our position accurately. It's the middle sentence: "If the accused maintains his present attitude to the Court, then both the Trial Chamber and the Prosecution will have to perform the difficult task of deciding, without the benefit of argument from him, between allowing on a bare minimum of unchallenged evidence to prove the case and calling the amount of evidence appropriate to this very particular and unusual case."

In addition to crime-base witnesses, there are the following general categories:

Experts - and that's real experts, whether they are constitutional experts, pathologists, demographers and so on - they tend to be particular to one area or another. And if there were in total between 25 and 30 such witnesses for the three trials altogether, each taking a day, again evidence in-chief, that would be 25 to 30 days on top. Policy witnesses - and this is frequently witnesses at a very high level, sometimes with well-known names - are witnesses who it may be very difficult for us to call more than once because of their seniority, witnesses who are likely to take longer. I've allowed for two days each, as a guess, and as an average, with our experience in other trials to assist us. And my colleagues and I have calculated somewhere between 30 and 35 such witnesses might be available, so that they would take between them between 60 and 70 days, on the basis I've advanced. Insiders, the last group, and as I've suggested, a group that may be growing and of great value. Again at present, we would forecast perhaps - and this is a very difficult forecast to make because of the ⁹⁹ concerns that such witnesses have - 25 to 30, again two days each, 50 to 60 days.

Simply putting those figures together, and working on the basis of the 150 days that I hope would be the maximum required for leading evidence in-chief from crime-base victims, leads -- taking average figures, leads to roughly 150 days for crime-base and very roughly 150 days for everyone else, 300 days in all.

My learned friends, as I've explained, performed the exercise in order really to check the figures that I've reached, differently and independently, how long their trials would take - their trials, our trials, the trials over which they have presided as senior trial attorneys - how long they would take. The ranges are, of each trial, between 10 -- between 13 and 9 months, 13 for Bosnia, 10 for Croatia and 9 for Kosovo maybe.

JUDGE MAY: We need to deal with the Bosnia one separately. Could you give us the figures for Bosnia? We have got the figures for Croatia and Kosovo.

MR. NICE: Well, the estimate given by my friends recently may be slightly different, so I better check. But the present estimate by Mr. Groome - and I don't disagree with him, but he knows the case much more fully than I do at the moment - the case for Bosnia is 13 months, but then a significant saving, if it would go together with another trial, of two or three months. And in each case, there is, of course, a clear saving of time, if trials go together, of one, two, three months, as a realistic minimum. ¹⁰⁰

JUDGE MAY: How realistic? Because I must ask you this, Mr. Nice: How realistic are these overall estimates? You see, we have references -- the Prosecutor told us on the last occasion that there would be 255 witnesses in relation to Croatia, 170 days, and the reference in Kosovo was 228 witnesses and 170 days. I mean, what you're talking about is a very different state of a case, it appears.

MR. NICE: Your Honour, I've done my best to build in my own experience, which is available to me from having run a big case, and knowing the degree to which witness lists are reduced by the time they come to court, I set this out in the motion. And if you look -- if you return to the figures I've given for crime-base witnesses, I can explain that in more detail for you. It may help.

For example, in Croatia, the suggestion is that there is -- that there could be something in the order of 143 live witnesses for crime-base plus many other statements under 92 bis, but it's very difficult for us to forecast what percentage of material may go under 92 bis because this is not our decision. We can make a decision to apply for that process, but it's a matter for the Chamber to decide whether it will be acceptable. In the Bosnian indictment -- let me stop there for a minute. We've tried to approach crime-base evidence in this way generally: How many individual scenes of crime are there, multiply every scene of crime by two, two witnesses per scene, per major scene, and that's been the sort of rule of thumb we've been applying. And that indeed, if I go straight to Kosovo, because you've already had some figures for there, my learned friend Mr. Ryneveld says that of the 167 witnesses listed for crime-base, ¹⁰¹ it may be possible to survive on as little as 42 -- not survive, to do justice by calling as little as 42, and the balance by 92 bis. Bosnia, which is at an earlier stage of preparation, as the Court will appreciate, and which faces 47 -- has 47 municipalities to deal with, has been approached on the basis that of the 300 witnesses, dealing with crime-base, approximately 100, two per municipality very approximately, should be called, and the other 200 could be the subject of 92 bis applications, thus reaching the total of about 150 -- 300 that I said. I should explain that, of course, within crime-base witnesses, there are witnesses who are crime-base plus; that is, they can say something that begins to point towards the accused or begins to explain the management process. But you can't have too many categories, and I hope the categories I've identified are helpful, because they do enable us to give some or have some sense of security in the figures we are offering you. Your Honour, those are the figures.

JUDGE MAY: Well, the final matter is the state of readiness.

MR. NICE: That's comparatively easy for me to explain. There are, of course, three things to be dealt with: 66(A), 66(B), and as a separate issue, Rule 68.

As to 66(A), the Croatia indictment will be completed or is completed on the 12th of December. So 66(A) for Croatia will be done. We have 30 days from today to comply with 66(A) for Bosnia, and subject to dealing with protective measures for witnesses, which is a motion that must be prepared, served and, although it's a difficult period of the year, responded to or dealt with by the Chamber, subject to that, we ¹⁰² believe that the 30-day period is realistic. Kosovo, of course, 66(A) has been done. So that 66(A) can be completed for all three indictments by 30 days from now.

66(A)(ii) not applicable yet for Croatia or Bosnia so far as Kosovo is concerned, and we understand from those who are dealing with the production of the materials, and I've been provided with a very helpful schedule by the -- my learned friend Mr. Kay for the amici. We understand that some 150 person days of work are left and, with the resources being focused on this case, that material can be provided by the end of January so that --

JUDGE MAY: What are you talking about?

MR. NICE: 66(A)(ii), which is the material to be served in respect of the trial. 66(A) is the confirming material. Within the time limit, it's full disclosure of the statements of the witnesses intended to be called at trial and copies of witness statements.

JUDGE MAY: I thought that all that had been done. We've had a pre-trial brief.

MR. NICE: Translation difficulties mean that it hasn't been completed. It will be completed on present estimates by the end of January, and we now unearth the missing statements. The amici have very helpfully prepared a schedule which those dealing with the Kosovo team will be able to analyse and check that everything wanted or unserved will be served, as we understand it, by the end of January 2002. Your Honour, that brings me to the problem of Rule 68. And I know that this topic was touched upon at the last hearing. The Prosecution ¹⁰³ entirely accepts that it has its clear duty under Rule 68. It is also undoubtedly the case that as the material held at this institution grows, and wherever one is dealing with an accused of this category, the exercise under Rule 68 becomes increasingly enormous. And I do not use that word without careful thought.

The exercise is one that I look forward, if it's possible, to discussing in detail and in due course with either the Pre-Trial Judge or Judges concerned, for I don't think it's going to be sensible to try and deal with it now. It is, of course, a continuing duty, one that continues right through the trial, and indeed through to the appeals stage, as we know, of all these trials.

Our problem is this, with an accused of this kind: If we simply set parameters for the search of materials that may be relevant, then the task is absolutely enormous. Therefore, it becomes necessary -- given that Rule 68 refers to what is practicable, it becomes necessary to set narrower parameters. With an accused who is represented, that is something that might be done more easily than one who is not, and I can simply tell Your Honours this: that although there is continuing work being done in relation to disclosure under Rule 68, and although we've given thought to all sorts of possibilities providing the accused with computer systems, if that is possible - but it probably isn't - and all other sorts of possibilities, there is, at present, and until we can be satisfied either by our own decision-making or by our own decision-making in conjunction with such assistance as the Court or even the amici can give us, all I can say, that the outstanding duties under 68 will take a ¹⁰⁴ very long time to complete.

May I explain what my intention is. Although I haven't actually discussed this with my team yet, but I'll tell you in any event. I believe from recent work that I've done and meetings that I have had, that we must prepare for the Pre-Trial Judge in these cases or this case, whatever it may be, a detailed account rather like one that was served, I think, by Mr. Reid to the Appeals Chamber in Kordic setting out exactly where we are and what we're doing. We are only too delighted to provide both to the Court, to the accused, and to the amici, the criteria for search that we will be pursuing and only if we can narrow the present criteria very substantially will this exercise become a manageable one. With that --

JUDGE MAY: Mr. Nice, I'm not sure what you mean by this. I understand the difficulty, but it must not be allowed to prevent these trials coming on. It must be conducted within those parameters. Of course, if you want the assistance of the Court, you shall have it, but it's not to be, if I may say it respectfully, a way in which time goes by and trials then come on. It's an ongoing problem here, trials not coming on.

MR. NICE: Your Honour, I entirely agree with everything Your Honour has said. We recognise it as a primary responsibility as I think Judge Hunt expressed it in the very appeal case to which I've referred. We certainly don't want it to delay trials the reverse. I think the test of practicability will, as it were, reflect the trial timetable, and I am optimistic that it will be possible to narrow the search criteria to ¹⁰⁵ identify the appropriate behaviour of the Prosecution that we will be able to meet the timetable, whatever it will be, that the Chamber will set. But it is a huge task, and there is simply no suggestion that, for example, by February or even, for example, were the Chamber to decide a mid-summer start date, that the exercise could be completed by then, unless we went to the very, very narrowest of criteria. So that doesn't stand in the way of the trial working - of course not - but it does represent one of the realities of preparation.

Your Honour also asked us in your list of questions about readiness for trial, and I will just come to that. Kosovo, of course, is ready to start on the day in February on the basis that it's prepared as a single case. I've already made my arguments as to the undesirability, in our respectful submission, of that happening. So far as the other two are concerned, there is time required, and I think that on the last occasion, of six months or thereabouts was identified for Croatia. Bosnia is in a less well-developed state and has been under very considerable pressure, in terms of timing and resources. No doubt all those on the Bosnian case would prefer a longer period of time, and it's I who have to decide what we will make due with and it -- not make due with, because that's a matter entirely for the Chamber - I'm sorry about that - but what I will say we could make due with and leave everything else to others. Given that there is the potential for continuing preparation of a case while it or an associated part of the same case are being conducted, especially if it was a joint trial, given the generalised power of the Chamber to make some variations in time limits under Rule 127, which might ¹⁰⁶ be a material power in relation to things like witness lists or final witness lists, I am reasonably confident or confident that all these trials will be ready to start by the summer as a joint trial. Obviously, the Office of the Prosecutor would prefer the autumn, but we have to reflect on the interests of the accused and the public interest in having these cases heard and disposed of. And so on the basis that there was a joint or single joint trial, we are satisfied that that date would be something we could work to. It would be very hard work, but we would do it. It will no doubt need some additional resources; I will ensure that I can get them. I will try to get them, but I'm confident that I will be able to.

So, Your Honour, that brings me to the end, at least, of -- at the moment of what I've saying. I'm sorry I've taken a long time, but this is a very important matter. I should say for the benefit of the accused, who may not have read the motion, that the other arguments we rely on -- no, I must come back.

So far as preparation of trials is concerned, there are many witnesses, and perhaps an increasing number who can speak to all three indictments, particularly amongst the insiders and the high-level policy witnesses. Apart from the waste of time or the expenditure of time in their coming twice, there is always the real problem, particularly for insiders, of their willingness to come more than once. We also rely on the protection of victims and witnesses, and where such witnesses, insiders or otherwise, might be vulnerable coming twice is particularly undesirable, or three times, and we urge the Chamber to say - ¹⁰⁷ and this is a reflection of the point made right at the beginning, and if I may respectfully say so, powerfully by the Prosecutor herself - there is the interest of justice in having the accused dealt with, if there are any convictions, by a single Chamber on a single occasion. And there are the wider interests of the interested parties in the former Yugoslavia seeing the matter resolved on a single occasion, whatever the result, by a single Trial Chamber.

JUDGE ROBINSON: Mr. Nice, on the question of the number of repeat witnesses, in your motion, I think you had identified a number of 25. Are you still with that figure, or is --

MR. NICE: I suspect that that figure is enlarging, and I use the word "suspect" -- is going to grow. And I use the word "suspect" for this reason: In particular, there are two areas where inevitably we do not have the luxury of witness statements and certainty of what a witness is going to say. One is insiders, and one is the very high-level witnesses to whom we have only limited access or do not get them very often. And the work on those two categories of witnesses has been developing substantially recently, and it's in those areas that I think we are going to find, and we are finding, more witnesses who can help on all three areas.

JUDGE ROBINSON: Those repeat witnesses would, by and large, not be victims.

MR. NICE: No. They would, by and large, not be victims. Indeed, there may be none within those categories who could be described as victims, but there may be other from the mixed category of crime-base and ^{108 BLANK PAGE 109} victims, the ones I said earlier, who can point somewhere up. Those witnesses would not be victims, but they may well be vulnerable to pressures and they -- because of the position of this accused, and they may well be witnesses whom we only have the opportunity of calling once. We don't know that, but again, this is a matter of experience from calling such witnesses in other cases -- in other case -- other cases. The concerns they feel, and genuinely feel, may all too easily affect their willingness to turn up more than once. But you're quite right, they are unlikely themselves to be victims, for the most part. Your Honour, I don't know if there is anything else outstanding, but can I just check my notes?

[Prosecution counsel confer]

MR. NICE: I'm sorry, yes, I think, by a slip of the tongue, Your Honour referred to filing of pre-trial briefs under 65 ter -- I think it's 66 -- it's 65 ter (E). Thank you. And Mr. Ryneveld just makes it plain - if I didn't make this plain, it's my mistake - in Kosovo, it's the -- the statements of witnesses haven't all already yet been served. That's a problem. That's a translation problem, because as -- the Chamber knows the problems. And of course, the translation department, which serves all parts of the institution, has to set priorities. And there are a number of trials coming on in January, and they have to have their own priority. Considerable allocation of time has been made to this trial. Right. Thank you very much, unless I can help you further.

JUDGE MAY: Thank you, Mr. Nice. We will hear the remaining arguments from the amicus and also from the accused at half past 2.00. ¹¹⁰

--- Luncheon recess taken at 12.57 p.m. ¹¹¹

--- On resuming at 2.30 p.m.

JUDGE MAY: Mr. Wladimiroff or Mr. Kay.

MR. WLADIMIROFF: Thank you, Your Honour. Your Honours have asked us to address the Chamber on the issues as indicated in the order. With due respect, the amici will not deal with the statistics. That, of course, is a matter for the Prosecution and not specifically for the amici.

But I will make two observations though on this statistics. First and foremost, I should say that we strongly agree with the Prosecution on the argument as set out in paragraph 32 to 39 dealing with the right of the accused to a fair and expeditious trial.

We have no doubt in our minds that a single trial will serve the right of the accused to a fair and expeditious trial. Without being cynical, I may recall, Your Honours, the accused urging the Court to deal with the matter as soon as possible, and I may refer to his remarks about having the verdict already, which, of course, is not a matter for the amici to take up, but it's an expression, perhaps, for his desire to have this trial dealt with as soon as possible. We support that. A single trial will probably allow the accused a better opportunity to reconsider his position and to see his position in a more relevant way, whether he will respond to the Article 92 bis issues, that is, to challenge documentary evidence or, better to say, to challenge documentary instead of live evidence on the crime bases. Another issue for the amici is - and this is directly related to the position of the accused - is the fact that we are not putting forward ¹¹² a case. We are not defending the accused. That's for him to decide what he wants to do, but to assist the Court in defence-related issues. In terms of statistics, this may not, by doing so - assisting the Court - that may not affect the statistics provided to you by Mr. Nice. We may cross-examine policy witnesses and insiders for the benefit of the Court. At this stage, it seems unlikely that we will deal substantially, with witnesses that will give

evidence on the crime base, but whatever it will be, all this will not affect the time frame as given by Mr. Nice. So we do not believe that on our part, there will be any effect of the time frame as already put to you by the Prosecution.

As I said, we are not defence lawyers in this case. Therefore, it seems also very unlikely that we will ask the Court to call witnesses. So in sum, we believe that the figures that has been given by the Prosecution are the figures that are for the consideration of the Court, and we have nothing to add to that.

Before asking Mr. Kay to deal with the other question of the order, I think I should say that the amici are quite happy to assist the Prosecution in setting the right criteria for search of exculpatory evidence in the ongoing obligation of the Prosecution to do so, to disclose that kind of evidence.

After Mr. Kay, the other amicus, Mr. Tapuskovic, will speak in concurrence with the observations of Mr. Kay more in detail on the issue that does not only -- is a matter of concern for the Court but for the amici as well, that is, the matter of the issue of Greater Serbia. ¹¹³ We hope that all this may assist the Court in your considerations about the matter.

MR. KAY: Your Honours, in relation to the issue of joinder, it may well be of help to consider why joinder, as a principle of law, is considered as a particular and distinct subject. The joinder of charges is necessary to be considered for essentially three reasons, the first being whether an accused would be prejudiced in the preparation of his trial and the conduct of his defence if a number of charges are joined together, which makes it difficult for him to conduct such a defence or comprehend a trial. At this stage, in these proceedings, that isn't really a pertinent subject for the Court, because the accused is not recognising the Court and, therefore, that distinct matter is not something that could be put forward on his behalf, by either him, nor really raised by us as a matter of concern for the preparation of a defence.

JUDGE MAY: It may not be for those reasons something which you can raise, but it's something that we've got to consider. Would an accused be prejudiced if these matters were all joined together, by, for instance, the number of witnesses, the multiplicity of accusations? Would he be able -- whatever the attitude of this accused, would an accused in these circumstances be prejudiced in conducting a defence in this way?

MR. KAY: Yes. In this particular case, at the moment, that is not such a live issue, which is why I've separated it from other issues where joinder may be pertinent. And I say that because of the two other limbs of this particular area, the most important of which is that the ¹¹⁴ joinder of allegations, i.e., the increase in charges against an accused, is scrutinised by a Court to see whether the Court hearing the case would be prejudiced against the accused because of the number of charges. And particularly in common law jurisdictions where you have a jury, there is often that factor to be considered and, indeed, in bench trials, in civil law jurisdictions, that's considered perhaps not to the same extent, but whether the number of charges that are joined together makes it difficult for the Court to hear the case, so to speak, without being overwhelmed by the extent of allegations and therefore not provide him with an unprejudiced trial.

That's really something that the Court has to consider in dealing with it from his perspective, and one of the reasons why joinder is a distinct subject of scrutiny within all criminal justice systems. The third limb is one that's already been referred to in this Court, and that is whether the proceedings themselves become unmanageable because of the extent of the allegations that make the desirability of joining indictments together in a single hearing, rather than separate hearings, a task that a Court feels is too burdensome. So those are our submissions of the three areas to which the Court should have regard. And we've raised a number of matters within our response that I won't go over again, but a couple of matters should be perhaps pointed out to the Court.

The Prosecution argument has been on the basis of really the plan section of Rule 2, as an interpretation of the words "same transaction." And in many respects, in their preparation of the material for this ¹¹⁵ hearing, they've presented it as a blanket joinder, which is the phrase that I've used in the response, in that they are joining indictments, rather than having considered the joinder of counts or crimes, which is the strict language that's used within the Rules. In approaching it from that basis and submitting to the Court that this is a plan, the plan of Greater Serbia, therefore Kosovo is linked to Croatia is linked to Bosnia, that is something that may well be open to debate and argument, and we've heard this morning the Bench questioning the Prosecution about that approach, which seems to hinge on the way they've presented the arguments, which we say would arise from this blanket joinder of the three indictments.

In consideration of the counts, however, there is that one sees a commonality which I think is one of the words that came from the bench this morning in relation to the particular charges, and it may well be that if thought is given about the word "strategy," as distinct from "plan," i.e., the modus operandi of the commission of alleged offences, that it's there that the commonality for joinder of the counts, rather than the indictment, is able to be founded by the Court. We put that forward having reflected upon how the Prosecution have presented their argument and how we have reflected that the Rules ask the Court not to consider indictments but crimes, i.e., counts. And this Court has to be satisfied - as the terms of reference by Your Honour Judge May was made very clear this morning, and with which we entirely agree - have to be satisfied that the Prosecution case is made out within the Rules, and then it's a discretionary matter for the Court thereafter ¹¹⁶ dealing with the competing interests of the accused, as well as the bench itself, as we have put in our motion.

But when one considers the particular counts - and we have sent in a late document yesterday afternoon which so to speak set out what counts were reflected within the three indictments - one sees there the repetition of the allegations being made in the distinct count within each indictment.

It's for the Prosecution really to satisfy, we submit, that there is a prima facie basis within the Rules for such an application to succeed having started on the basis of three distinct indictments, and each of those counts that are put forward within those indictments must satisfy the Rules themselves. In looking globally at an indictment instead of the distinct counts themselves, in many respects what is being sought in terms of commonality by the Court to justify a joinder can be missed.

JUDGE ROBINSON: So you're saying, Mr. Kay, that we have to look at each count individually?

MR. KAY: Yes.

JUDGE ROBINSON: And there is an onus on the Prosecution to show the linkage count by count.

MR. KAY: Yes.

JUDGE ROBINSON: Not just indictment by indictment.

MR. KAY: The Rules themselves spell out quite distinctly - we've set it out in our response to the Prosecution motion - that it is the word "crimes," two or more crimes may be joined in one indictment. And as is pointed out within our motion, it's not two or more indictments may be ¹¹⁷ joined, it's two or more crimes, and that must refer to each count within each indictment which reflects a particular allegation or alleged crime. The approach the Prosecution have taken on this subject, we feel, has led them in many respects not to put their argument in the context that is helpful to the Court because it has been rolled up as a blanket joinder of indictments without looking at the specifics of these Rules. It's been said that the rules within the civil law and common law jurisdictions are wide-ranging rules, and in many respects they may be, but the language within the Rules of this Tribunal is, in fact, I would submit, far more restrictive than you see within other jurisdictions. My own jurisdiction of the U.K., we use the words "series of offences," but here we're using distinct terms, planned, schemed strategy. The Prosecution have opted to base their argument on the use of use this word "plan" and this theory of the Greater Serbia plan which may or may not be right. We here - the bench and the amici here - are not really parties in terms of that particular argument and can't comment on that at this stage.

JUDGE ROBINSON: I think Mr. Nice had submitted that the jurisprudence of the Tribunal tends to give a broad, liberal construction to Rule 49, and I gather that he was submitting that that is the correct interpretation.

Are you -- what do you say on that issue?

MR. KAY: We weren't necessarily impressed by that aspect of the argument because the citation of the cases themselves, principally the ICTR case, it was, in fact, a very narrow case. The 100 days of the ¹¹⁸ Rwanda genocide was a very distinct event and probably not the best kind of example to use from the jurisprudence of the two tribunals in relation to joinder.

I think the overconcentration on the word "plan" - and that has a political connotation with it - may, in many respects, have caused them to disregard what the purpose of the Rules are, which are quite clear, and that relates to the crimes themselves rather than distinct indictments.

JUDGE MAY: But there is still a reference to a transaction, and what he's proposed is that in a single indictment, there should be crimes spanning nine years.

MR. KAY: Yes.

JUDGE MAY: It would be of assistance, certainly to me, to know what your position is on this as amicus. Are you saying that this is a case in which there should be joinder? Or an alternative view is that Kosovo should be tried on its own? Or that all three should be tried on their own? It would be of assistance if we know what conclusion you've reached on that.

MR. KAY: We have been, so to speak, trying to be helpful to the Court, and I can detect that we haven't been helpful, in that we have not had a distinct position. Our position, so to speak, has been emerging as we have been getting to grips with the material, us really coming into this case at a much later stage than the Prosecution. In our judgement, talking amongst ourselves as the amici, a single trial, dealing with the issues as one trial, if it's possible to be achieved by the Court itself, does have benefits for an accused in that he ¹¹⁹ doesn't face three separate trials, which can be a wearisome and burdensome task that can be damaging psychologically and damaging for health and a far greater burden than perhaps many people could satisfactorily deal with.

JUDGE ROBINSON: With respect, Mr. Kay, that's not the issue, the way that you have put it. I think obviously the -- you have given the correct answer. The issue is whether, on the basis of the facts as we have - and those facts are really the allegations in the indictment - and on the basis of the law that is to be applied, what is your view on the issue? Of course, it is correct that it would be more beneficial to the accused if there were one trial, but that is not the issue. The issue is whether, as a matter of law, on the basis of the facts before the Court -- the Chamber, what is the Chamber to do? Is joinder the correct approach in these circumstances?

MR. KAY: It is -- Your Honour is perfectly right. It has to be justified. It has to be justified by the Prosecution according to the law. And our view is that the Prosecution, with this particular argument, have not justified it according to the Rules and how one should interpret the Rules. The way to justify it was by the approach that I outlined, which deals -- concentrates more on the word "strategy" and evidential matters that have a commonality in relation to the particular crimes alleged, rather than --

JUDGE MAY: You say they haven't justified it.

MR. KAY: Yes.

JUDGE MAY: But what is your position? ¹²⁰

MR. KAY: They have taken the wrong argument.

JUDGE MAY: They may have taken the wrong argument, but what do you say the right answer is?

MR. KAY: We think the counts themselves provide the commonality. Sorry, I was trying to make that clear earlier, which is why I said if the exercise had been approached according to the Rules, and the crimes, i.e., each count, had been linked, you can see it -- you can see why joinder comes about because of the modus operandi. But when you have attempted to justify it by the use of the word "plan," and the Greater Serbia plan, as the Bench has picked up this morning -- and my learned friend, Mr. Tapuskovic would tell the Court quite clearly from his perhaps more detailed knowledge of those kinds of matters, that is, where it falls down, because it's quite clear that it doesn't even feature in their pre-trial brief on Kosovo. I don't know whether the Bench has had a chance to get into the pre-trial brief yet. But when I got to the end of it, on a pretty cursory reading at this stage, it was clear that that -- that they had approached commonality in terms of co-defendants, but they hadn't really made this issue live in terms of the justification of joinder. But our view is that the counts themselves, if you look at them, and why we submitted that schedule to you late last night, are -- have a commonality between them that justify joinder according to the Rules of the court.

JUDGE ROBINSON: What is the commonality?

MR. KAY: For instance, you take deportation of people that is alleged to have happened in Bosnia, in Croatia, in Kosovo, that the ¹²¹ strategy has a commonality there. Forget any political plan or anything like that. It's the modus operandi, it's the strategy, that has the clear links of being the same transaction for the purposes of Rule 2.

JUDGE MAY: It's got to be the same transaction. Just because much the same thing happened or crimes were committed in the same way in three different places doesn't necessarily mean that they are part of the same transaction, since that is defined in the way that the Prosecution have pointed out by reference to a scheme, strategy or plan. The fact that there is a common modus operandi does not mean there is a similar transaction necessarily.

MR. KAY: "Same transaction," Your Honour, here has a very distinct meaning, and probably not the instantaneous meaning that it can have in commercial law or other fields, to be considered. A transaction can take ten years within the meaning of the Rules. If one looks at how it's defined in Rule 2, this -- these phrases, "the same plan," "same scheme," "strategy," or "plan," it's one of those -- it can be one of those particular elements of the definition within Rule 2. The Court has been looking for a temporal link. That may not necessarily be there within the meaning of "the same transaction," because it's the -- a strategy may not have necessarily a close temporal link. The word "plan" and "the Greater Serbian plan" is really defining a single concept, a matter of evidence, that as yet, on the documents before the Court - and it's got to be the material we have now, which the Court judges the matter upon - we agree has not been made out, in terms of the words "Greater Serbia plan." It is not in the pre-trial brief for ¹²² Kosovo. Within the indictment -- the Bench has also pointed out that within the Kosovo indictment, it is absent. And the flavour of the material supplied so far doesn't justify it, and we agree with the Court in that approach, if that's the approach of the Court. But our submission is that in relation to the crimes themselves, that if one looks at the particular strategy for the alleged commission of offences, that that's where nexus is provided within these three separate areas of the former Yugoslavia.

I don't think the Court is helped by the Prosecution referring to what it will hear or could hear or may hear. Really, this Bench has to base its decision on the material before it which is an observation.

JUDGE MAY: That must be right.

MR. KAY: Yes. There were many illusions to that, but that's not helpful because all we can do in our submissions is look at what we've got before us and the Bench is exactly in the self same position. I've dealt there with the general issues concerning joinder. Before I sit down and Mr. Tapuskovic addresses the Court, is there anything else on the general issues that I am able to assist the Court with?

JUDGE ROBINSON: Mr. Kay, just a general matter of concern to me - and I'm speaking for myself - you made a reference to the accused not recognising the Court, and I think it is not the first time that you have made such a reference.

MR. KAY: Yes.

JUDGE ROBINSON: It is also, in fact, in paragraph 10 of your ¹²³ brief. In my view, nothing flows from that. There are no legal consequences for the Chamber. The Chamber has to discharge its duty irrespective of whether the accused recognises the Court or not. The Chamber has to ensure that the accused has a fair trial. As a matter of fact, in this case, even if the accused doesn't open his mouth, the Chamber will still be obliged to consider defences that may be open to him.

MR. KAY: Yes.

JUDGE ROBINSON: So I don't think you should make much of that because, in my view, nothing flows from it.

MR. KAY: Yes. I didn't want to give any impression that I was, so to speak, making that as an argument for the Court. That is inserted within our response on the basis that we're making it clear that we act within a distinct way, and are not Defence counsel, so that we don't derive any positive case that we could submit to, so to speak, the limb, one matter I addressed the Court to concerning arguments for joinder.

JUDGE ROBINSON: But I mention it because it may be what accounts for what, in my view, is an approach as I see the amicus taking. My view is that the amicus is not in any way prevented from an advocacy that is vibrant, vigorous, and robust, by reason of the fact that the accused is not recognising the Court.

You are in no way prevented from advancing arguments on this issue which would go to show, for example, that the accused would not receive a fair trial were they to be joined up.

MR. KAY: Yes. ¹²⁴

JUDGE ROBINSON: I see nothing that would prevent you from advancing such arguments, and I mention it because I would not want that kind of approach to inform your general approach to the discharge of your duties.

MR. KAY: I'm grateful to Your Honour, and I think the point is well taken on this bench here.

We cannot put forward any defence case that we have in mind in relation to the joinder issue. We cannot say, well, we are relying on this particular field of instructions that we are developing and investigating to that particular issue, which is why it's in there as an indicator of what we don't have. But I'm grateful for the Court reminding us that we can be vigorous, robust, and no doubt we will endeavour to be so appropriately, rather than inappropriately.

JUDGE MAY: You can't, of course, put forward a case, but what you can do is take particularly any legal points which it is open to the accused to take and indeed should do so.

In this connection you refer, in your submission, to the Court having to consider the extreme scale of the single trial exercise, and obviously that is a matter which we will have to give careful consideration to. And is there anything you want to say as to that suggestion of a trial with 385 witnesses probably at a minimum? Is there anything you want to say, from your experience, about the practicability of a trial of that nature?

MR. KAY: Yes. There is no doubt that this is an immense task that everyone in this courtroom is embarking upon, and I think that that ¹²⁵ is well recognised. If this Court was to try, for instance, Kosovo on its own first, one of the ramifications that has to be considered would be whether this Trial Chamber would then be the Trial Chamber embarking upon the phase two trials of the Croatia and Bosnia indictments, and if so, would that, in fact, have been a waste of time to sever Kosovo from the other two if, in fact, this Trial Chamber could or would be, in fact, following up in a phase two, part two trial on the outstanding indictments. Which, if that was to be the case - and Your Honours will be far better aware of what the policy matters are within the Tribunal Trial Chambers than I am, in many respects - one would say, well, that could have all been done together.

An immense task has to be weighed up by us in relation to the accused himself having one large trial or going through what would be two or three substantial, and almost as large, trials and the kind of effect that that would have on him. And at the end of our discussions of the matter, it was that that we felt was the most important thing, that we felt it could be extremely crushing for an individual to have to go through that process for that length of time - three and a half years or so it would have to be - given even the conservative estimates of the Prosecution, the most conservative estimates of the Prosecution would be perhaps an awful lot to expect of a human being, whilst one may be a substantial undertaking for any individual. It comes down to it whether the Trial Chamber is -- feels that they are capable to manage. And we put that forward really as the third area of consideration. There are three parties that each have their separate interest to ¹²⁶ be considered in relation to the undertaking that's being requested: the Prosecutor, the accused, as well as the Trial Chamber itself, whose rights in the matter aren't set out in the Rules or the Statute, but we've put it down in our response, so to speak, to say, well, that's a material feature that can be impliedly read into the structure of the Rules that the Court could say, well, this is simply too big an undertaking to undertake by the Judges themselves.

That is a matter we have left open to the Court in its discretionary power to deal with as it judges in relation to the duty as we've stressed within our response of the right and the duty to provide a fair trial to the accused.

JUDGE MAY: Thank you.

MR. KAY: Thank you.

JUDGE MAY: Yes, Mr. Tapuskovic.

MR. TAPUSKOVIC: [Interpretation] Your Honours, I find myself in a very delicate situation after everything we have heard spoken here today, first of all from the Prosecution, and now from my colleagues with whom, quite certainly, in respect to the matters in hand and the application of Rule 49 and Rule 2 are concerned linked to the term "transaction" which we have been discussing at length here today. And I can, at the very outset, state the following, and that is this: When we were discussing what to say and how to take the floor and act as amici curiae at this Tribunal, we started out from the assumption and position that none of us need be absolutely tied and bound to everything that has been heard before by other amici curiae. ¹²⁷ I do not say that I am in a position now to present a drastically different view to these same matters. I do know the role of amicus curiae. I understand it full well. And I know in a situation of this kind, I could do nothing in the sense of being Defence counsel for Mr. Milosevic or the representative of Mr. Milosevic in any way at all. But I am in a position of being able and attempting to assist the Court when it has to think about the matters in hand and in particular the proposals made by the Prosecution with respect to the joinder issue, and I think that I am able to contribute to a certain extent, to give you food for thought and to help you arrive at the most just decision in that respect.

I do not want to challenge, of course, anything, and it is our common position with respect to the application of Rule 49, and everything that Mr. Kay said before me. But I should like, first and foremost, to say a few words about what we heard this morning from the Prosecution. Quite certainly, when you come to make your decision and ruling as to joinder or not, it cannot be sufficient, nor can it be a relevant element at this point in time, what Mrs. Carla Del Ponte said that the purpose of this trial is, first and foremost, to pass sentence, as one sentence. As amicus curiae myself, I think that is immaterial for the time being for your decision as to whether you are going to accept a joinder or not.

At this point in time, before the trial has gone forward at all, you have to look at the other elements and not whether a sentence will be passed ultimately. First of all, we have to see whether we are going to ¹²⁸ have a joinder or to have separate cases, and we must try and pool our efforts all together to help the Trial Chamber to arrive at the right decision, take the right stand. So what Mrs. Carla Del Ponte said at this point in time cannot be of importance for your decision in any direction, whatever direction it may take.

On the other side, on the other hand, I do not understand one more thing. It was stated by the representative of the Prosecution that several people worked on the indictments and that that is why we see the presence of a certain discrepancy. I cannot accept that. I cannot accept that these are different indictments just because different groups of people worked on them. As amicus curiae, I have to express my concern that on the basis of the same evidence, we first have one version, then we have an amended version and then a subsequent amended version related to Kosovo, whereas matters concerning Croatia and especially Bosnia were not dealt with on time in any indictment at all because they didn't have the evidence to hand. Now, that explanation doesn't seem to me to be sufficient if we know when the events were completed - in Croatia ten years ago, and when the events took place in Bosnia - and now only after the indictment has been raised with respect to the Kosovo events, we have finally an indictment. And these indictments, which are coming in belatedly and now, at the end, in the final instance, oh, wonder of wonders, we have a new element, that is, that everything stated in the Kosovo indictment, as the Prosecutor says, how do we see this general strategy, the general strategy accompanying all these events, with the purpose of creating a Greater Serbia? That does not exist in the Kosovo ¹²⁹ indictment, and all our discussions and deliberations revolve around that point here today.

I must say that the insistence of the Prosecution on something like that is not by chance. An attempt is being made precisely to follow a line according to which an idea or plan of the creation of a Greater Serbia existed, and that is being applied to Kosovo as well. I can understand all the arguments that have been put forward with respect to judicial economy, the protection of witnesses and all the multitude of problems that are present in all countries of the world when people are trying to conjoin certain elements and have one trial in a situation where all efforts must be made to make the trial as short as possible without incurring too many expenses. Now, if the object is only to have a fast and expeditious trial, then I am afraid that all the other provisions of Article 20 of the Statute will be left behind. I am not Defence counsel - I say that once again - so I won't tell you what I think is best, but it is my duty to open up all these realms of thought and areas of deliberation; otherwise, I will not have fulfilled my duty of amicus curiae. I have to be of some assistance to the Court. So that is why I put these matters forward. And of course, it is up to you to make the decision and ruling.

And let us now go back to what the Prosecution has been insisting upon, the fact that all three cases and trials must be joined into one, that there must be a joinder. This idea, which is based upon Rule 49 and Rule 2, speaks of two or more crimes may be joined in one indictment if the series of acts committed together form the same transaction. I must ¹³⁰ state that in recent days, since this has been a topic on the agenda, I have looked at the three versions of the indictment, of the Kosovo indictment, and nowhere, in no place, did I come across any mention made of the fact that everything that took place in Kosovo was done with the aim of creating a Greater Serbia. That is such an absurd assertion and ludicrous attitude - and I apologise for using those terms, but I can say none other than that - that quite simply I cannot believe that something could have been uttered where we have an incontestable fact. Your Honours, you yourselves have already raised all those questions, and that is something that must be dominant when you come to deliberate and decide. I do not see on the basis of what a position of this kind could have been put forward at all or founded at all, and that in the case of Kosovo, that everything that took place in Kosovo took place within the frameworks and composition of an intent to create a Greater Serbia. It is not -- we are not challenging the fact, we are all aware of the fact, that Kosovo is part of Serbia. Kosovo is the territory of one state. Kosovo, being what it is, has been what it is since the London peace agreement in 1913, not to mention centuries ago. I know why insistence is being made on the previous ten years, and the historical and political background of those ten years, but when you come to deliberate and make your decision, I'm convinced that this Trial Chamber, quite certainly, will be interested in looking at a longer period of time, further back, and look at everything that happened in those areas of the former Yugoslavia and Croatia, in Bosnia and most especially in Kosovo, and I assume and I hope that this Trial Chamber and this Court ¹³¹ will have the wish, perhaps through expert opinions, the opinions of expert witnesses, to hear something else and to hear about the whole historical background.

I am not going to enter into polemics with the Prosecution at this point in time, but let me just start out from passages from the indictment, and then we will come to the conclusion -- we will be able to come to the conclusion that there is a great deal of contradiction when it comes to this intention of creating a Greater Serbia, which should be the cap for all of this and which the accused is being charged with in these indictments.

If you take a look at what we have already heard today -- and Count 6 of the indictment for Croatia, it says that the aim is that parts of Croatian territory become parts of the new Serb -- new state under Serb domination. Now, Croatia - this has not been challenged - in the former Yugoslavia was a republic of that one-and-the-same state and country, and later on it became a full-fledged state. The same holds true for Bosnia. But if you pay attention to what it says in the indictment for Kosovo, you will be able to see that the goal and purpose of those activities is to ensure control of the Serb authorities over that territory. I think that is quite logical. It is logical that in a state, somebody must ensure control over its own territory. But I draw your attention to another point: We did not hear from the Prosecution this morning, which is stated in paragraph 93 of the Kosovo indictment where it states that this stepped-up control was done in the presence of a campaign of armed uprising and resistance to the Serb authorities. Therefore, ¹³² something that does not exist anywhere either in Croatia or in the Bosnia indictment, but it is present in the Kosovo indictment, and that is diametrically opposed. It is a great difference, an immense difference, and I think that this must -- needs eliminate the thesis according to which all these events come under the cap of the attempt to create a Greater Serbia.

I don't have to speak about that at length, but I would just like to add two more elements. The time lapse that we have heard, and also something else during the Kosovo events, the accused Milosevic did not have de jure authority and competence in relation to what was going on there and under those circumstances, the circumstances of an armed struggle, an armed uprising, and the circumstances of the NATO bombing that we heard about this morning as well, and in respect to Kosovo and Bosnia and most especially to Croatia, he did not have de jure competence. He had de facto authority and competence. So these elements, along with what I said a moment ago, will truly bring you into a situation where you will have to give careful consideration to whether all this can be joined, in fact. Of course the best thing would be if, faced with a situation of this kind - and you have not had a case before this Tribunal, a similar case - if you could find a solution and solve it together and -- but if we were to join the indictments, and if we are only ready to go ahead with trial for Kosovo, as the Prosecution has said, then you will have to think about the idea of Greater Serbia from behind. You'll have to start with Kosovo, and then you'll have to proceed along those lines. ¹³³ This will lead you astray, I'm afraid, because the Prosecution in paragraph 20 states about -- states that there was successive conflicts. It speaks about successive conflicts, and successive conflicts can never go from back to front. They can only go to the logical direction and in no other way. I don't know how you are going to decide what your decision and ruling is going to be. I was just duty-bound to point out these matters to you.

Let me state again that the situation is a highly delicate one.

[Trial Chamber confers]

MR. TAPUSKOVIC: [Interpretation] It is a highly delicate situation, and if we were to view it from the aspects of judicial economy and only bear in mind the interests of the victims, of course we all have to bear that in mind, that is quite logical. We have to take care of the victims, but this is a trial, this is a case in which we will have to clarify some vital interest points, whether there is criminal accountability in the sense that it was written down in the indictment, and then go on to thinking about all the rest.

If I were Defence counsel, I would know what to suggest and put forward to the Trial Chamber. But I am not the Defence counsel. I am sure you will give great thought and deliberation in arriving at your decision faced with the situation of this kind. Thank you.

JUDGE MAY: Thank you. Mr. Milosevic, this is a motion, as you know, that all three indictments should be joined together. It's your opportunity to address us on that, if you wish. ¹³⁴

THE ACCUSED: [Interpretation] All that we heard today from the so-called Prosecution only confirms that the whole concept is misconstrued. But so that you don't deprive me of the floor, I will stick to only those arguments that are in response to your question. For me, it is quite clear why this false Prosecution insists on a joinder. It is a consequence of the 11th of September. They wish to place in the background the charges for Kosovo because those charges of Kosovo inevitably open up the issue of the cooperation of Clinton's administration with the terrorists in Kosovo, including the bin Laden organisation.

Secondly what we heard today shows that they too are aware that in that case, they cannot avoid, regardless of the illegality of this Tribunal, of the main protagonists of the crimes committed against my country and people appearing here, starting from Clinton, Albright, Clark and others, but of course also many other peace mediators who activities and cooperation in finding peace absolutely denies what I would call monstrous allegations uttered here. Therefore their reasons are of a completely pragmatic nature designed to protect those who committed crimes against my country rather than any reasons of judicial economy because they certainly don't care whether I will be fatigued or not. I've already said what I think about that.

As for the Crown argument that has been set forth here, the idea of the creation of a Greater Serbia, that is an argument that can easily be disproved, and I don't think that anyone with any sense could use that argument which they have used as a thread and basis for all crimes to ¹³⁵ continue to impute, impose, or in any other way abuse it. There are certain indisputable facts.

On the 28th of April, 1992, the Federal Republic of Yugoslavia was established; on the 28th of April, 1992, therefore, before the conflicts started, before the civil war started. The constitutional assembly, by its official document, declared what our position was, and it said that the Federal Republic of Yugoslavia has no territorial pretensions towards any single one of the former Yugoslav republics. That is absolutely sufficient proof that this nonsense that is being alleged is absolutely rejected.

I should also like to recall that at the very beginning of May 1993, thanks to our maximum efforts in Athens, the Vance-Owen Plan was accepted and signed at the time by Serb representatives as well, and that acceptance was prompted by the belief that peace was the greatest objective and value of all the Yugoslav peoples, and that very fact denies any such idea.

Also, life in former Yugoslavia during those ten years best disproves allegations about ethnic and religious discrimination because the Federal Republic of Yugoslavia is the only state which has preserved its multi-ethnic character and in which there was never any discrimination on national or religious grounds. The ten years behind us confirms this. The same applies to Kosovo. Perhaps you do not know this, but the government of the Autonomous Province of Kosovo and Metojiha in 1998 and 1999, during the war, throughout, until those who committed aggression set up their agents in Belgrade, was composed of Serbs, Albanians, Muslims, ¹³⁶ Turks, Goranci, Romany, and Egyptians. The Serbs were in the minority in that government.

So how can this idea of national discrimination be reconciled with this fact? Our delegation in Rambouillet was also composed of representatives of all those ethnic groups. How can that be reconciled with these monstrous allegations of ethnic discrimination? Do you know that in 1998, after ten years of peace in Kosovo, ten years when no one was killed, and during those ten years, no one was arrested, and tens of newspapers were published in Albanian that were on sale at every corner, and there was education in all elementary and secondary schools in Albanian, and after ten years when terrorism escalated, organised by foreign services, from the remnants of the Albanian Mafia, we set up police in Albanian villages, by these villagers themselves selecting policemen who became armed, and they were Albanians, as were the postmen, as were the forestry workers, as were the other officials in the state administration? They were the target of assassinations, slaughtering, killings, by Albanian terrorists. In 1998, there were more people of Albanian ethnicity that were killed by Albanian terrorists than Serbs killed by Albanian terrorists.

A particularly eloquent factor is that in all our bodies, even in our Socialist Party, the membership reflected the composition of the population. There were Serbs, and Albanians, and Turks, and Hungarians, and Ruthenians, and Bulgarians and all others. Who would have thought of supporting a programme of national and religious discrimination that is being alleged? ¹³⁷ These two indictments for Croatia and Bosnia have been explicitly issued precisely to drown the indictment for Kosovo, which is evidence of terrorism, though it is quite clear that both in Croatia and Bosnia we advocated peace and not war. We assisted our people to survive and not to become a victim of genocide, as it had been during the Second World War. But on numerous occasions and in public, we stated - and I among them - that we wanted those people to be free and equal in the territories in which they live, but not at the expense of any other people. The example of the Federal Republic of Yugoslavia -- and very good inter-ethnic relations throughout the time of conflict best illustrates this. During the conflict in Bosnia, not a single Muslim was expelled from Serbia. During the conflict in Croatia, not a single Croat was expelled from Serbia. Even during the time of conflict in Bosnia - look at the records of the UNHCR - more than 70.000 Muslims refugees found shelter in Serbia. Then which -- who would be those people, those thousands of people, who would seek shelter from the people who had committed aggression against them? Do you know that there are more Muslims living in Serbia than in Bosnia-Herzegovina? The Muslims in Bosnia-Herzegovina have been pushed into this tragedy, into this war, so as to be subsequently supported and to have an alibi later for killing millions of Muslims all over the world in accordance with the interests of those in power, with the aim of enslaving the world and colonising it. Particularly, I cannot understand that someone can have the gall to talk about Kosovo as something not being a part of Serbia. Kosovo is Serbia and Kosovo will remain Serbia. And this situation will last only ¹³⁸ as long as this illegal occupation of Kosovo and Metohija continues; illegal, because it came about through the abuse of the United Nations, and Resolution 1244 of the Security Council, which envisages the presence of UN security forces there. However, those forces have usurped the authority of the United Nations and allowed continued terror by Albanian terrorists so that thousands of Serbs and other non-Albanians of Kosovo have been killed and kidnapped, tens of thousands of Serb houses burned down, more than 100 churches have been destroyed and burnt, all this under the auspices of the international forces who came there to guarantee safety for all.

And today, after these distorted elections, when Serb deputies go under military escort to enter the so-called parliament, that will continue for as long as the occupation continues. That was the situation that we had during Turkish occupation for 500 years, but this will not last as long, and when that occupation ends, Serbia -- Kosovo will again be under Serbian control, not only Kosovo but also Serbia, because Serbia will again, and shortly, be run by patriots, as will other countries, instead of this new strategy of a neocolonialism and the appointment of various puppet governments.

I think that everything we heard today, and which is on a total collision course with the truth, has shown to what extent these indictments have missed their mark. I can only understand them as an expression of fury and revenge for the fiasco that NATO experienced in its attempt to impose military occupation of Yugoslavia. And I must tell you that I am proud to have been in command of the armed forces of Yugoslavia ¹³⁹ that halted NATO, because we have proven that even a small country that has a firm will to defend its freedom and to defend the idea of freedom and equality of nations and people can defend themselves. This is punishment because we opposed the danger of the greatest tyranny threatening mankind.

And the various things that can be found in these indictments are the remnants of a media war designed to Satanise the Serbian people, the Serbian leadership, myself and my family, because the media war came before the real war, and the aim was to persuade public opinion in the west that we are evil-doers, though we never gave cause for such accusations.

You read out today that on the 6th of April, 1992, the European Union recognised Bosnia and Herzegovina. This was done under the influence of the then Minister of Foreign Affairs of Germany, Genscher, because the 6th of April is the day when, in 1941, Hitler attacked Belgrade. The desire was to symbolise a change of the outcome of the Second World War. I would never attribute that to the German people, but some statesmen have kept alive the evil that we fought against together, and they have achieved more than a revenge because they have managed to kill us with the hands of our allies, the Americans, the British, the French, with whom we fought together during two world wars against that same evil.

[Trial Chamber confers]

JUDGE MAY: Well, Mr. Milosevic you've had some time. You're getting some way from the issue which we have to determine here, which is ¹⁴⁰ this: whether these three indictments should be joined together. Is there anything more that you want to say about that issue?

THE ACCUSED: [Interpretation] I have already told you what my position is towards this Tribunal, though Judge Robinson says that that has no consequences for you. Therefore, what you will do is up to you. I am just saying that not a single argument that has been set forth here in favour of some kind of joinder is not truthful. It doesn't stand. It is not correct and has no justification whatsoever. Therefore, the arguments are false, as are the indictments, and you will decide as you see fit. That is up to you.

I think that the arguments offered are against the idea set forth by the Prosecution because all that they have said and that as they move forward, it will become clear on what shaky legs this whole thing stands and how it is based on a media war and not on real facts, especially facts that could have any weight. And the fact that their language and the structure of their submissions fully coincide with what we have been listening to for ten years in the political pamphlets appearing in the media only shows that they have been compiled at the same source. If I were in your place, I personally, regardless of your status, which I am denying, as you know full well, I would reject such ideas. They simply wish to push into the background Kosovo only because it raises the issue of cooperation with terrorists and it is not suited to current policies. They are ready to falsify historical facts for the benefit of daily politics, and that is something that even this illegal court should not allow itself to do. ¹⁴¹

JUDGE MAY: Mr. Nice, very briefly, please.

MR. NICE: Yes. But I -- there are one or two important points, if I can deal with them.

Mr. Kay's argument about the way that the Rule should be construed which, in a sense, supports joinder, I make this point: When each of the indictments was confirmed, the confirming judge no doubt considered and found that constituent crimes, different than they are one from another, constituted a single transaction. When you have the same mix of different crimes, it's true that currently in three different packages, then there's great strength in the argument that follows from Mr. Kay's interpretation that they similarly fall in part of the same transaction. They've already been found in this admixture to be the same transaction once, likewise twice.

Agree with the intervention of His Honour Judge Robinson about the breadth of the practice, and on that point, I will simply repeat -- not repeat, but remind you what is in the motion about the practice in this very court where there are politicians on trial. The material is indeed what it is you've got to look at. The material does support the argument, and indeed that's why I drew your attention to the motion. The three particular passages in the three particular indictments -- but can I draw your attention to something you may not have before you? I can read it out. It's very short, but it's important. And this is in the Kosovo pre-trial brief. First of all, on page 9 at paragraph 23, dealing with the earlier Kosovo problems in the 1990s, there's this passage: ¹⁴² "In the early 1990s, the possibility of the situation escalating to armed conflict appeared very real. The accused had already demonstrated in Croatia and Bosnia and Herzegovina that he was prepared to go to war to achieve his vision of the Greater Serbia. The seriousness of the situation in Kosovo prompted the United States." And then we come on to the warning that we say simply led to delay of the crime that was committed in 1999.

In that same pre-trial brief at page 48, paragraph 113 dealing with the events in 1998 and 1999, we again observed the activities there were consistent with the criminal activities of the accused in Croatia and Bosnia during the early 1990s, so that the matter has indeed been in our minds and has been canvassed throughout.

My learned friend, Mr. Ryneveld, tells me in contravention to what the accused has just said that he announced an intention to join in August of this year, before September.

One other point arising from what my learned friend the amici have said when they speak of three and a half years. And I spoke of judicial economies of scale in my motion. Three and a half years for separate trials, for the reasons we have advanced, we would invite you to say there are true judicial economies of scale with one Chamber hearing all these things, the ability to make proper and radical decisions about what evidence is required, and how evidence is to be given is going to be far, far greater and the savings far greater in the event of a single trial. Mr. Tapuskovic, a couple of points from what he said. He challenged the notion of the Greater Serbia. As I've sought to make ¹⁴³ plain, although it appears in the terminology generally - and we refer to it only with caution - it's really the Greater Serbia versus the new Yugoslavia as a term to reflect Serb-dominated state, and it was interesting to observe that the accused, in speaking to you just now, and helpfully, made it quite plain that so far as he is concerned, Kosovo will come under Serb control again. It is the same principle, and of course, what we know from the papers that are before you is that what led in part to the break-up of the old Yugoslavia was the reduction of autonomy of this state barring their rights to autonomy and existence, and it was that, of course, that led to this particular conflict. So Greater Serbia - as I've said already, but I must repeat - not creating something larger, it's retaining and/or incorporating relevant parts of other territories. So far as the defendant himself - and I won't deal with the political points because I forecast that Your Honours wouldn't wish me to - as to territorial pretensions, that's covered in the papers, and it will be entirely a matter for the Chamber to decide in due course. As to the suggestion that what happened here in relation to indictments about Croatia and Bosnia was all done simply because of what happened in Croatia, of course that is simply untrue. These matters had been under investigation way before that event, but the Court may notice that - which I forecast earlier this morning - that whichever one of these trials is being dealt with, the defendant is going to be advancing a single theme.

Now, that, of course, in itself doesn't make a single transaction out of something that might not be. That's a general proposition. But ¹⁴⁴ one can see first that if we have the Kosovo trial first and if his attitude towards these issues remains the same, we are going to have all of the previous events trawled through, as I suggested, and before we ever get to those earlier events, the Court will have had to make decision about these later events, which will be hopelessly confusing for any Court to deal with these matters.

It was his argument of the huge practical desire to have all these matters dealt with in one. And the Court will remember, I hope, that in my motion, I said there are advantages to both sides. It's balanced. And one of the advantages was the advantage that would go to the defendant who obviously seeks to show that everything we're doing relates to Kosovo. If the indictments are joined, he will be in a position to raise those matters and won't have to incorporate them or get the evidence in or seek to rely on that which is not primarily before the Court. So that, in our respectful submission, everything that he has said not only confirms that which the Court may have inferred is in the mind of many people in this Court, namely that a single trial would be much more convenient, although large, much more convenient, and will bring true economies of scale, but everything that he's said shows that from his side, this is a single transaction. Although that cannot make good what isn't, in our respectful submission, it fits with what we say, which is that things are entirely different in interpretation from the way the accused has represented them to be today. That they are a single transaction reflecting his overall plan, internal, personal plan of keeping power and of keeping power for a particular format of Serbia. ¹⁴⁵

JUDGE MAY: Thank you.

[Trial Chamber confers]

JUDGE MAY: Yes. We will adjourn now for half an hour. We'll consider these matters.

--- Recess taken at 3.54 p.m.

--- On resuming at 4.23 p.m.

JUDGE MAY: The Trial Chamber has considered this matter, and we give this ruling now. Our decisions will follow in due course in writing.

The Prosecution motion is allowed to this extent: That the Croatia and Bosnia indictments will be joined. However, the Kosovo indictment will not be joined but will be tried separately and first, beginning on the 12th of February next year. The Pre-Trial conference will be held, as arranged, on the 9th of January, and as I say, our reasons will follow in writing.

Now, there is time to raise any other issues which the parties wish to raise relevant to these proceedings. We would be grateful if that could be dealt with as quickly as possible, given the hour. The Prosecution first.

MR. NICE: Our only immediate and pressing concern relates to Rule 68 disclosure. So far, I think Your Honour is the Pre-Trial Judge in respect of Kosovo and Croatia. We have yet to discover who will be appointed in respect of the Bosnian part, but presumably it's likely to be Your Honour because you're already seized of Croatia and the two are now joined. ¹⁴⁶

JUDGE MAY: I think that's likely.

MR. NICE: The Court has not announced which Chamber is to try the following trial as things are ordered to be disposed of by this Chamber.

JUDGE MAY: The same Trial Chamber.

MR. NICE: Very well. That's very helpful. It would, I think, be helpful if we could have a hearing under, as it were, 65 ter, before the Pre-Trial Judge, effectively Your Honour, to deal with Rule 68 in respect of all three matters. And as I indicated in the course of argument, I will have prepared before that meeting an extensive analysis of where we are in Rule 68 disclosure practice and development, in order that we can satisfy the Chamber, not that we are under an obligation to do so ahead of events, but we can satisfy the Chamber of what we are doing, get assistance from either the Chamber or from my learned friends, the amici, in relation to what we are doing, and so that we can better inform everyone of the likely time scales involved in Rule 68 disclosure according to different criteria. That's what I wish to do. Of course, a 65 ter hearing is, I think, nominally one which involves the parties. And for these purposes, the parties doesn't actually include the amici, but should include either the accused or his lawyer. The accused not being represented, it would have to involve the accused himself, and we would have no objection, of course, to the amici being present, subject to any observations that the accused himself might make.

JUDGE MAY: I think the difficulty is the timing, the recess beginning next week. ¹⁴⁷

MR. NICE: Might it be possible to have such a hearing, if not before, then on the same day as the Pre-Trial Conference in the Kosovo case?

JUDGE MAY: Is there any reason why it shouldn't be part of the Pre-Trial Conference?

MR. NICE: Indeed, as it's the same Trial Chamber, no reason at all.

JUDGE MAY: That might be a convenient way to deal with it all.

MR. NICE: I'll get a report and what we are doing before you and served on the defendant - the accused, I beg his pardon - and the amici as soon as I can before then.

JUDGE MAY: Yes. That would be helpful.

MR. NICE: I can't immediately think of any other issues that are arising at the moment.

JUDGE MAY: Thank you.

MR. KAY: Nothing occurs to us at this stage, Your Honour, and the trial date, being 12th of February, for Kosovo is very helpful as we know what target we have to work to.

JUDGE MAY: Yes. It did appear there might have been some problems about disclosure, but it may be that you and the Prosecution can work on that together.

MR. KAY: Yes. We have made a schedule of supporting material served, as well as incorporating within that schedule the identities of those in the summary of their evidence, and pointed out where we don't have statements of those within the summary supplied by the Prosecution ¹⁴⁸ and where we have statements within the supporting material of those who haven't been included in the summary. It may be that there's a translation blockage which has prevented statements from being released, or it may be that some of those witnesses are to be dispensed with. We don't know. But we did want to have identified, and it might well be helpful for the Court to be in the same position, so that witnesses that are going to be relied upon -- so that we don't waste time reading statements of witnesses that are not going to be used in the trial. I don't know whether the Court was alert to that problem at the moment in relation to the material, but we've served it on the Prosecution today. It's a schedule that Mr. Nice referred to this morning, and I understand it's being reviewed and looked at.

JUDGE MAY: Apparently the matter will be dealt with at least by the end of January, so we would hope.

MR. NICE: Your Honour, yes, as far as we know, by the end of January it's a question of getting translated document and the documents to be translated translated. It's very helpful to have the schedule. The matter will be considered. We will make sure that there's nothing we have overlooked that we shouldn't have overlooked.

JUDGE MAY: Yes, Mr. Wladimiroff.

MR. WLADIMIROFF: Yes, may I add that the amici are available to the Prosecution to help them out to identify the criteria for exculpatory evidence for their search.

JUDGE MAY: Thank you. Mr. Milosevic, there's one matter we want to raise with you. It's ¹⁴⁹ this: You haven't appointed counsel to defend you. As you know, it's your right to defend yourself if you wish, although you may wish to reconsider that in the light of the complexity and seriousness of these charges. But that's a matter for you.

Meanwhile, we would wish to have this made clear: In the preparation of your defence, do you wish to have legal advice and, if so, from who? I say legal advice and would add this: legal advice or any other assistance.

Now, would you deal with those matters? Do you want legal advice, and if so, from whom do you want it?

THE ACCUSED: [Interpretation] I have been informed in the meantime that without my request, you have assigned certain advice that I did not ask for, interpreting my agreement to receive visits by certain individuals as a request for legal advice. My response to that has been addressed to the Registry that I do not consider that whoever visits me and has a law degree should be appointed as my legal counsel, and I don't think it would be permissible for visits to continue to be restricted, visits by persons who wish to visit me in accordance with the Rules that you have established and on a nondiscriminatory basis, since other people in that prison are allowed such visits.

JUDGE MAY: Mr. Milosevic, if you don't want advice from Mr. Clark and Mr. Livingston, which we understood you did, who do you want it from?

THE ACCUSED: [Interpretation] No, I'm not asking for any advice from anybody.

I have said that I would like to be granted the possibility to be ¹⁵⁰ visited by people who wish to visit me. That's all. Secondly, I have heard here that you have an infrared camera in my cell. I was informed by the detention administration that the light has been switched off because the camera has been switched off, but I haven't been informed that this light that your spokesman mentioned has been switched off, and I request that it be switched off as well.

JUDGE MAY: We'll look into that. Now, Mr. Milosevic, is there anything else you want to raise? Very well. The Trial Chamber will adjourn until the 9th of January.

---Whereupon the Motion Hearing adjourned at 4.37 p.m. to be reconvened on Wednesday, the

9th day of January, 2002, at 9.30 a.m.