²⁹⁰

Wednesday, 30 January 2002

[Interlocutory Appeal Hearing]

--- Upon commencing at 9.33 a.m.

JUDGE JORDA: [Interpretation] Please be seated. Madam Registrar, would you have the accused brought in.

[The accused entered court]

JUDGE JORDA: [Interpretation] First of all, I would like to say good morning to the interpreters to make sure everybody is at his place. Good morning; and good morning to the Prosecution and to the amici curiae; and good morning to the accused.

First of all, I would ask Madam Registrar to call the case which we are hearing this morning.

THE REGISTRAR: [Interpretation] Good morning, Mr. President and Your Honours. This is case number IT-99-37-AR73, IT-01-50-AR73, IT-01-51-AR73, the Prosecutor versus Slobodan Milosevic.

JUDGE JORDA: [Interpretation] Thank you, Madam Registrar. I would ask for the appearances for the parties. First to the Prosecution.

MS. DEL PONTE: [Interpretation] Mr. President, I represent the Prosecution, myself Carla del Ponte, with my colleagues Geoffrey Nice, Norman Farrell, and Peggy Kuo. Thank you, Mr. President.

JUDGE JORDA: [Interpretation] Thank you. The accused has no Defence counsel, at least not as far as I know. And in this case, we have amici curiae, who might identify themselves as well for the proper conduct of the proceedings. ²⁹¹

MR. KAY: Steven Kay of Queen's Counsel for the amici curiae, with Branislav Tapuskovic of the Yugoslav bar.

JUDGE JORDA: [Interpretation] Very well. Thank you. Now that everybody has identified him or herself, I would like to give a brief background for this case. Let me first remind you, and I remind the accused, that on the 13th of December, 2001, Trial Chamber III ordered that: The indictment in the three cases which have been identified by the registrar, that is, the Croatia indictment and Bosnia indictment, be joined and that they be given a joint case number; secondly, that the Prosecution, within 28 days from the date of the decision which I have just mentioned, file a joint indictment; third, that the Kosovo indictment be the subject of a separate trial which would commence on the 12th of February of 2002; and four, that the trial relating to the events in Croatia and Bosnia commence immediately afterwards before this same Chamber. That is the decision of 13 December 2001.

On the 20th of December 2001, the Prosecution sent to the Appeals Chamber an application for leave to file an interlocutory appeal against that part of decision rejecting the joinder of the Kosovo indictment and the indictments respectively concerning Bosnia and Croatia, in accordance with Rule 73(D) of the Rules of Procedure and Evidence. On the 9th of January, 2002, the Appeals Chamber authorised the Prosecutor to file an interlocutory appeal of that decision of 13 December 2001, emphasising, however, that such authorisation should not be interpreted as preventing the Trial Chamber, should it so decide, to ²⁹² commence the trial in respect of the Kosovo indictment at the date which had already been set. That is, as I remind you, the 12th of February 2002.

Lastly, on the 15th of January, 2002, the Prosecutor filed to the Appeals Chamber an interlocutory appeal against the decision on the application for joinder, requesting in substance that the Appeals Chamber set aside the decision of the Trial Chamber and order the joinder of the Croatia and Bosnia indictments and the Kosovo indictment. The Prosecutor claims, and now I quote, four points which are the subject of the debates this morning: First of all, that the Trial Chamber, according to the Prosecutor, erroneously found that the Croatia/Bosnia, and Kosovo indictments could not be joined because they did not form the same transaction.

Two, the Prosecutor claims that the Trial Chamber erred in the exercise of its discretion by failing to take into account the true prejudice to the Prosecution by requiring certain witnesses to testify in separate trials.

Three of the Prosecutor's argument: The Trial Chamber erred in the exercise of its discretion in finding that a joint trial would prejudice the accused, contrary to all the representations on the record. And fourth point: The Trial Chamber erred in the exercise of its discretion by considering as a reason for denying joinder that a joint trial would be unmanageable for the Trial Chamber, without stating any reason in support of that conclusion.

The amici curiae in this case have not provided to the Appeals ²⁹³ Chamber their written observations in respect of the appeal. Nonetheless, today, meeting, the Appeals Chamber wishes them to be heard should they so wish.

In agreement with my colleagues, we have decided that this hearing would take place as follows: After this introduction, the Prosecutor will present its application in 30 minutes, approximately. One can be somewhat flexible. After that, it should be about 10.15, the Judges will ask questions.

Then the floor will be given to the accused, should he wish to be heard, for that same amount of time to present an argument. And of course, the Judges could put questions to him should they so wish. We should then be approximately 11.30. We'll take a break. And after that, for a short amount of time, approximately 15 minutes, we will hear the amici curiae, and perhaps the Judges may have some questions to put to them. And should that be necessary, but only should the accused raise objections because he is his own defence, there may be a reply given to the Prosecutor.

Having said this, I give the floor immediately to Madam Prosecutor.

MS. DEL PONTE: [Interpretation] Thank you, Mr. President. Thank you, Your Honours.

In 30 minutes, we will try, that is, myself and my college Geoffrey Nice, to provide additional information about the motive set forth in our written brief. We confirm that the application of Rule 49 of the proceedings is necessary. This is the same transaction; one strategy, ²⁹⁴ one plan, one scheme and, we add, one and the same accused ascribing to him a single crime, series of crimes, the same facts. All of this, Your Honours, connects the three indictments very clearly. That is forced and violent expulsion of non-Serbian populations of large parts of the territory of Croatia, Bosnia-Herzegovina and Kosovo. The grand plan, overall plan, of the accused Milosevic, which was clear already in 1989, was an essentially Serbian state, dominated by Belgrade. There is a nexus in these events, a nexus of fact, which we will prove chronologically. And the common denominator of all this criminal activity was - and this must never be forgotten - the forced expulsion. My colleague will explain the details to you. I myself would like to emphasise, as you already know but I will again emphasise, that we are ready to begin the Kosovo trial. We will be ready for the trial of the two other indictments on the 1st of July, 2002. The 1st of July, 2002, we will be prepared to commence the two other trials; and in addition, in two months from today, we will be able to present the list of witnesses, the list of documents - that is, the exhibits - and the pre-trial brief. Of course, I will call it "provisional" as the Rules of Procedure and Evidence authorise me to do. I would like to put forward a few observations, Mr. President, in respect of the indications given in the motivations for refusal to join the indictments in which it was said more than three years have gone by between the events in Bosnia-Herzegovina and the first episode in Kosovo. This does not mean that the three years do not represent a period that should be examined during the trial because one must not disregard ²⁹⁵ the fact that after four and a half years of war in Croatia and Bosnia, the Serbs had had enough of war.

The economic situation in the country was disastrous; the war had been a total failure; the popular support in Serbia was disappearing; and most of all, the resources necessary to carry out another war, another conflict in Kosovo, were no longer available.

The striking example which makes it clear to us that the accused Milosevic did in fact have the intention of continuing his plan of ethnic cleansing is the fact that during the negotiations for the Dayton Agreements, Milosevic did not want to include Kosovo. You know, Your Honours, Mr. Rugova asked the Americans to include the situation in Kosovo, which was not at all calm, but Mr. Milosevic, the accused Milosevic, refused that categorically. Therefore, all negotiations, Mr. President, which took place between 1996 and 1997 on Kosovo, independently of the Dayton Agreements of 1995, failed. In 1998, you have the resignation of the army and the secret services because they protested, that is, the chiefs were protesting, against Milosevic's policies in Kosovo.

And finally, the well-known agreement which was negotiated by Holbrooke was something that the accused Milosevic did not apply. And we are now still speaking about Kosovo.

What happened, the attitude, the behaviour of the accused during that period, which is very significant, also is the preparatory period for the Kosovo conflict, because the Serbian question is something that the accused Milosevic had in his mind from the very outset, that is the ²⁹⁶ expulsion of the non-Serbs, a concept which did not exclude Kosovo and especially because there was fighting for control of the territory. There you have it, Mr. President. One final consideration: We have said and repeated this morning that no prejudice must occur to the accused through the joinder of the indictments in this trial. I am asking you, Mr. President and Your Honours, that no prejudice come to the victims because the victims have the right to be able to have a single trial. We will not have victims to have priority because they appear first as before others, that is the victims from Croatia and Bosnia, and no prejudice for the victims. And that is true. The -- we do not have partie civile, but the victims are here, and there are many of them. And I thank you.

JUDGE JORDA: [Interpretation] Thank you, Madam Prosecutor. If I've understood correctly, in the time that you have, which is somewhat -- which is flexible - that's why I set up a framework, but it's an organisational one - I believe that one of your collaborators is going to take the floor.

Geoffrey Nice, please proceed.

MR. NICE: As it please Your Honour, I shall fill the remainder of the half an hour. When it comes to questions, I may call on either my learned friends Mr. Farrell or Ms. Kuo, to whom we're particularly indebted for drafting the brief, to answer any of the detailed questions that you may ask.

The matter has been extensively argued in our brief, and I will simply supplement the arguments there rather than, I hope, repeat them. This is the first, perhaps, time when Rule 49 will fall for detailed ²⁹⁷ consideration by this Appeals Chamber, and in those circumstances, I propose to raise some slightly detailed arguments about its proper scope. Can I invite Your Honours' attention straightaway to Rule 49, and I hope Your Honours won't mind if I deal with it in English, making the odd observation about the French version, which I hope is accurate. Rule 49 itself permits joinder of crimes in one indictment if the series of acts committed together form the same transaction and the same crimes were committed by the same accused. The short point that we desire to make at the beginning is that the words "committed together," which the Court will find on the second line of the Rule, and which may not be reflected in the French version, may have been a bit of a trap for the Trial Chamber. It may be that those words add nothing and could simply be excised as surplusage. It may be on a proper consideration of particularly Rule 2, that if they are to be carefully construed, they are to be construed with a comma between the two of them, that the word "committed" should be joined to "series of acts" rather than being connected to the word "together" in the way the Trial Chamber seemed to find. And we make that point in particular as a matter of common sense but also as a matter of consistency with Rule 2 to which I would then invite Your Honours' attention.

Rule 2's preamble, of course, allows that the definitions can be flexible to the extent that the context requires, and for "transaction" says as follows:

"A number of acts or omissions, whether occurring as one event ..." ²⁹⁸ and we would invite you really to draw a line after the word "event," "... or a number of events at the same or different locations and being part of a common scheme, strategy, or plan."

In our respectful submission, the definition is clear to the effect that criminal acts may be joined in a single indictment if, on the one hand, they are one event; alternatively, if they are a number of events, whether at the same or different locations, that are part of a common scheme, strategy, or plan. And immediately it's obvious that if the words "committed together" really bind any indictment and bind any joinder of offences within an indictment, then the second limb of this definition simply has no scope. And it's never been suggested in this Tribunal that that is the case. It's always been accepted by the practice of the Tribunal that acts at different places and times connected in a certain way can form the basis of a single indictment. So our submission is that the simple reading of the definition of "Transaction" in Rule 2 reveals that those words "committed together" in Rule 49 take the case no further.

I set that out right at the beginning for this reason: If the Court would be good enough now, please, to go to the decision of the Trial Chamber, and since I know that you are familiar with it, I can deal with it in summary starting at about paragraph 31.

The architecture of the judgement at this stage is as follows: The Trial Chamber went first to look at such assistance for the phrase "same transaction" there was to be found in decisions of the ICTR. At 33 -- I beg your pardon. At 32, it made a reference to the requirement in ²⁹⁹ civil law of connexite. At 33, it turned to the common law, and in particular to the United States Federal Rules of Criminal Procedure, Rule 8, which it sets out almost in full.

That rule can be broken down. It depends how you deal with the grammar, but it can be broken down either into one part and the second part being into three subparts or perhaps into four parts. We would invite you to say that one way or another it comes to four parts as revealed in footnote 28 of our brief, which you can find, for ease of reference, on page 10, I think it is, of our brief. Material for the Court's considerations in understanding the Trial Chamber's decision are the last two lines of the American Rule, picking it up from the word "or." This is in paragraph 33 of the decision. "... or on two or more acts or transactions connected together..." and the Court will observe that the Trial Chamber emphasised the words "connected together," although we say it was inappropriate to do so, and then it goes on "... or constituting parts of a common scheme or plan." So this part, or these two parts, of - it may be a four-part rule in the Federal Rules of the United States - envisages a joint indictment where there are acts connected together. And we would say that matches, in our jurisprudence, the "single event" concept; alternatively, it permits joinder of acts that constitute parts of a common scheme or plan. The word "strategy" doesn't appear there, although it does in our Rules. Continuing with the judgment at 35, the English cases are referred to, which perhaps have less significance because they are differently founded. And then at 36, the Chamber said this, and in our respectful ³⁰⁰ submission, incorrectly: "Accordingly, in the view of the Trial Chamber, the essence of the test is to determine whether there were a series of acts committed which together formed the same transaction, that is, part of a common scheme, strategy or plan." With that we have no objection. It goes on: "However, the reference to a 'series' and the use of the phrase 'committed together' in Rule 49 indicates that the acts must be connected in the same way that common law and civil law jurisdictions require."

It goes on: "There is no power to join unconnected acts on the ground that they form part of the same plan." That, we respectfully submit, is wholly wrong. It is contrary to the definition in Rule 2, and insofar as it seeks to reflect the guidance it receives from the American statute, it is reflecting only one part of what would appear to be a four-part rule.

It goes on to say: "As Judge Shahabuddeen explained, the plan must be such that the counts represent interrelated parts of a particular criminal episode." And we can look for the detail of that if there's time and if it's necessary.

We would again draw to your attention that, in that particular case, His Honour Judge Shahabuddeen was dealing with a single count that was again a single episode. It was the subject for an application to amend. But what he was saying related only to the single-episode part of joinder provisions.

The Chamber went on to say: "If there was no such series of acts and no such plan, any application for joinder must fail. Where there is ^{301 BLANK PAGE 302} no similarity in time and in place, the conclusion that the counts represent interrelated parts of a particular criminal episode will be more difficult, albeit not impossible, to draw."

Again, the Trial Chamber seems to have been focusing its attention throughout on the words "committed together" from Rule 49, which we say are of no effect, and seem to be focusing within the definition of "transaction" on the single event rather than on the multiplicity of events of forming a plan which has always been our case. Just to conclude this - and it is the longest part of what I have to say this morning; the rest will be dealt with much more swiftly - for the reason that you are dealing for the first time -- this Chamber is dealing for the first time with Rule 49 in some detail, we simply offer some dictionary definitions - may I have them distributed, please - in both English and French, of the words "scheme," "strategy," and "plan"; in English, from an Oxford dictionary; and in French, from I think Le Petit Robert, in case this will be of assistance to you. It seems to us on looking at these definitions - and we'll perhaps leave them with you for want of the time to go through them in detail - that there is a logic in the way Rule 2 was drafted. "Scheme" is a smaller activity or has a smaller scope than strategy; "strategy" itself having a smaller scope than "plan." Each term perhaps having been carefully chosen, even if borrowed, initially from the more narrowly defined American statute; each word being chosen perhaps with the type of activities likely to be dealt with by tribunals of this sort. I hope Your Honours will forgive me if again, having made the ³⁰³ French available, I focus just very briefly on the definitions of the words in English. Scheme: A systematic plan or arrangement for obtaining some particular object or putting an object into effect. Strategy: A plan designed to achieve a particular long-term aim. Plan: A detailed proposal for doing or achieving something.

My last point before I move on on this topic is to make a reference to the way the amici argued this before the Trial Chamber. They argued that the word "strategy" was itself enough in law to sustain joinder on the grounds that strategy was the connection of a common modus operandi. We didn't adopt that proposal. We don't reject it but we certainly didn't adopt it and feel that it would fit uncomfortably within the structure of Rule 2.

Nevertheless, in arguing the way they did, they were reflecting policies on joinder that are widely held throughout the world, and it may be that the word "scheme," now that we've looked at the definition, would be apt for justifying joinder of activities that had similarities. Of course, when the amici made the point they did about the similarity of activities justifying joinder, that concession by them -- not concession by them, that approach by them would entirely sustain our argument that this was a single plan. The very similarity of activities that on their approach would justify joinder supports our suggestion that this is a plan. This is a plan in the mind of the accused, maybe developing over time, but consistent and taking its effect and finding its reflection in the various indictments, the three indictments that have been proffered against him. ³⁰⁴ Your Honours, on the topic of the ability in law to join these offences, we rely on everything else that is said in our brief, because I have my eye on the clock. We draw particularly to your attention, for example, the Nuremberg indictment where things were explored on a much larger basis and developing over time. But we rely on all the other matters that were referred to there.

I turn, in the remaining time available to me, to the other particular topics. One of them is the status of the entities, Croatia, Bosnia, or Kosovo. Were they different in a way that barred joinder? Two points, quite briefly, supplementary to what we've already said: The status of the bodies attacked is wholly irrelevant. If a person, by his criminal act, seeks to take or retain territory according to a particular plan of his own - doesn't matter where the territory is - nothing flows from the difference in character, if there was any, between those territories.

But the second point, slightly more detailed but supplementary to that, is this: As a matter of history, the differences were nothing like as stark as the Trial Chamber appeared to think. Dealing with Croatia, Croatia's independence was recognised eventually on the 15th of January of 1992, having been declared effectively in October of 1991. The indictment against this accused starts in August of 1991 at a time when that state was in no different state from any other part of the former Yugoslavia, including Kosovo, save to the extent that Kosovo had a different history including its own very, very substantial autonomy until that autonomy was ended to the extent it was by this accused. ³⁰⁵ So in the case of Croatia, the first part of the time period being dealt with internal, the second part as an international armed conflict, in the case of Croatia, there is similarity, if not identity, of status with Kosovo. It's also worth observing that there are other similarities which emerge from the confirming materials and elsewhere in all three territories, similarities in the various pre-independence moves taken and, to some extent, taken on the instigation of this accused in the form of referendums and declarations of independence and so on. Preparatory acts.

When one turns to Bosnia where there were similar preparatory acts, the position there is the persecution charge starts technically one month before independence was effectively acknowledged in March as opposed to in April of 1992, but effectively at the same time. But of course, in the case of Bosnia, as in the case of Croatia, the plan to do what was done must have pre-existed - and it will be our case pre-existed - the actual effecting of independence. So in each case the plan was in the mind of the accused, and it's the plan that substantially matters at a time when the states were in no different position from Kosovo. So far as Kosovo itself is concerned -- and here again, you'll find evidence of preparatory acts in the form of plebiscites and so on. So far as Kosovo is concerned, the Chamber will recall, as indeed the learned Prosecutor has herself reminded us, of Mr. Rugova and the independence he claimed for Kosovo in the early 1990s. So by the time which we are more immediately concerned, there had already been parallel institutions and, it will be our case, it may be tolerated for his own ³⁰⁶ purposes by the accused, but some de facto independence accorded by itself to that state for a substantial part of the period of time leading up to the start of the indictment.

Accordingly, in our respectful submission, nothing follows from the so-said difference of status; and indeed, the similarities of status simply strengthen our application.

The gap between the conclusion of the Bosnian indictment and the start of the Kosovo indictment is seeming in a sense only -- and again, I adopt what the Prosecutor has herself said and amplify it in this way: First, there are acts of violence as early as middle of 1996, a mere six months after the end of the Bosnian indictment. Second, as we know from the various documents served, the pre-trial brief, and indeed I think the indictment in the Kosovo case, the campaign of violence was well underway in 1998 to such an extent that hundreds of thousands were recorded as displaced by October. Were that not the case, then the international community would not have intervened in the way that it did, making in due course the threats that it did that brought all these matters eventually and by whatever means to a conclusion.

So it's not a three-year period or anything like it. It's a much more -- it's a much shorter period than that if "period" is relevant at all. And along the way, there are plenty of documents revealing human rights abuses that were being meted out to the Kosovo Albanians and, of course, by those of the Serb persuasion at a time when the accused had the overall control that he did.

We say, therefore, that first the time interval is in fact ³⁰⁷ insignificant or in law insignificant. The question is whether there was a single plan, and that question is not affected by the time interval. It appears again that the Trial Chamber has been over concerned by the words "committed together," by the American requirement for -- under that particular limb of its joinder provision for proximity of time and space and hasn't been focusing on the correct approach which is dictated by the definition of "transaction" in our Rule 2.

Your Honours, can I move on -- if Your Honours just give me one minute.

Yes. Perhaps just -- perhaps one other point that I should make about the time interval and about the period between the beginning of the 1990s and 1999.

We set out that one of the restraining acts on the accused was the Christmas threat made to him by the American President, or on behalf of the American President, that action in relation to Kosovo would lead to international intervention. We said on the last occasion that that was one of the reasons why this was, as it were, a crime delayed. Another reason it was crime delayed was that of course, for the time being by the various steps the accused had taken in diminishing Kosovo's autonomy and so on, he had actually achieved his purpose of controlling Kosovo, and it was only when that control was manifestly broken that he put into effect the single plan that we say it would always have been his intention to apply there or anywhere else that behaved in the way that this province did.

Can I then turn to the discretionary matters and amplify just a ³⁰⁸ little what has been said in our brief about those. In our submission, the Chamber has misdirected itself in a way that justifies intervention. The test for intervention by this Chamber appears to be that if a Trial Chamber took into account things it didn't or failed to take into account things it should have done, then intervention may be appropriate.

Dealing with the Prosecution witnesses, no attention was paid to the real prejudice that comes to the Prosecution from there being two trials, and the prejudice articulated before the Trial Chamber is as follows: The witnesses who will be giving evidence in both trials, if there are two trials, are indeed not victims, typically. Typically, they are high-level insider witnesses, as they are described, who can provide direct evidence of what this accused was doing, what he was thinking, and what he was saying.

This Tribunal knows full well the pressures on witnesses of that sort, the difficulties of obtaining their cooperation and testimony, and the very real probability that they will only ever be able to give evidence once. Giving evidence in this Tribunal for people of that category may well involve substantial consequences for them, either of their own volition in moving and being non-traceable or, alternatively, consequences of a less attractive kind coming to them from those who do not like the fact that they have given evidence. If there are two trials and witnesses capable of giving this evidence of central value about the accused, if such witnesses are only able to give evidence once, then the other trial, the trial in which they ³⁰⁹ do not give evidence, will have been deprived for no good reason and, in our respectful submission, contrary to all sense of the most valuable evidence in this case.

Prejudice to the accused I can deal with very shortly. The matter was fully explored by the Trial Chamber. Every expression was to the effect that the accused would not be prejudiced by a joint trial and that, indeed, for him life would be easier. Trials are always stressful, but life would be easier for him with a single trial. He made no comment to the contrary effect and indeed is arguably to be taken as accepting that at one stage. The amici expressly acknowledged it as, it appears, did one of the Judges of the Trial Chamber. And in those circumstances where there is no material on the record to justify the conclusion that he would be prejudiced, it was quite wrong of the Trial Chamber to reach that conclusion.

Likewise with trial management. There was simply no material - none could be pointed to, none was identified - going to show that two trials would be easier to manage than one. The contrary, in our submission, is the case. With two trials, problems with disclosure, the problems preparing for one trial while running another would be problems liable to lead to confusion and difficulty for both parties and for the single Trial Chamber, and it's our respectful submission that it was totally wrong for that conclusion to be reached. Your Honour, that, I think, concludes all I want to say at this stage, unless I'm advised to the contrary by any of my friends. As to the timetable issues that the Prosecutor herself dealt with, ³¹⁰ I'm in a position to amplify those. Can I simply make one point for the avoidance of any doubt? It appears in our brief but should perhaps just be repeated. If there is to be a joint trial, of course there are reasons why it would be preferable for the trial to start with a single opening and with the evidence advancing in a chronological order, so that would be broadly Croatia, Bosnia, and Kosovo, but once it became clear in the Trial Chamber's ruling that they intended to have charge of both cases themselves in any event and for one to follow the other, then as we make clear, it would be possible to -- to keep, to hold the 12th of February trial date, to start with the Kosovo evidence, and to fit in the various procedures appropriate to the other indictment or indictments through the year, making obvious appropriate allowances for preparation, and then to have a single trial.

The evidence would have been given, as it were, a little upside down, but that's no problem. Professional Judges with the staff available to them will be well able to marshal the evidence and will be having the benefit of arguments at the end of the case on marshalled evidence so that things can be restored to their correct chronological order, given that chronology is valuable. So that once it became plain that the same Chamber was to try both cases, then adjournment wasn't necessary. And although of course we would prefer to be able to do things in the most orderly way, there's always a balance that has to be considered in procedural matters in criminal trials, and we remain in a position to deal with it in that alternative method although this, even if joined is decided is appropriate by this Chamber, may be something for a Trial ³¹¹ Chamber itself to consider.

Your Honours, I don't know if I can help further at this stage.

JUDGE JORDA: [Interpretation] Thank you, Mr. Nice. I turn to my colleagues to ask whether they have any questions they would like to put to counsel. Judge Hunt, Judge Guney.

Judge Hunt.

JUDGE HUNT: Mr. Nice, let us assume that we accept your argument that we disregard the wording of Rule 49 and therefore hold that the -- for that and other reasons perhaps, the Trial Chamber has miscarried its discretion because it misdirected itself in law. So you are then asking us to reconsider the matter ourselves, to tell you what Rule 49 really does mean, make our own findings of fact and then exercise our own discretion. That is what your application is, isn't it?

MR. NICE: We're asking you to say that the Trial Chamber was wrong in law, and insofar as it exercised its discretion, it exercised it incorrectly, and in consequence of that, the appropriate disposal would be that these cases should be joined because that would be the proper consequence of those findings, yes.

JUDGE HUNT: But that involves this Chamber exercising its discretion in the place of the Trial Chamber.

MR. NICE: Yes.

JUDGE HUNT: Yes. Well, now, may I ask you a few questions directed to that issue? Let's take the same transaction issue, the factual basis for it. In order to explain the three-year break that the Trial Chamber relied upon, you tell us in your brief that, repeating ^{312 BLANK PAGE 313} something which was said at the hearing, that this was a crime waiting to happen but which was delayed only because of international pressure. I assume, therefore, that you have some evidence, apart from the rather circumstantial inferences that the Prosecutor referred to this morning, that this was something which was in being back before 1995, that the attack upon Kosovo was part of this grand strategy or plan. Is that the Prosecution case?

MR. NICE: I think I put it somewhat differently, and I put it this way: Plan - and these words are always sometimes interchangeable - or purpose, whatever, but plan in the mind of the accused was a plan to gain or retain, as I characterised it on the last occasion, areas of territory occupied by Serbs for Serb control.

Now, that plan was going to take effect whenever it needed to take effect. The plan was constant. Its execution was to some extent dependent on opportunity or on other events.

For example, supposing in Vojvodina as opposed to compliance there had been, for some reason, disinclination to be under Serb rule. Then the same action, we respectfully suggest, would be bound to have been taken there as was taken in Kosovo, to retain - and it would have been pursuant to the same plan, for the plan was in the mind of the man - to retain for control the maximum part of Serb-occupied territory that could be so maintained.

JUDGE HUNT: It means -- I'm sorry. I'm waiting for the translation to finish.

That means then that we have to read paragraph 113 of your ³¹⁴ pre-trial brief in a very limited way. That is the one which says the Prosecution evidence will show that the accused and his co-perpetrators conceived of a plan to expel a substantial portion of the Kosovo Albanian population by no later than late 1998. It was implemented in mid-March 1999. The objective was to obtain Serbian control. And then as such, the objective was consistent with the efforts taken by the FRY and Serbian authorities between 1989 and 1991. And it is consistent - you'll notice the word "consistent" - with the criminal activities of the accused in Croatia and Bosnia.

Now, that rather tends to suggest that this was a completely independent conspiracy or plan.

MR. NICE: Well, Your Honour, if the paragraph reads in that way, and it doesn't necessarily read in that way to everyone, but if it reads in that way, then that's unfortunate but is not something that should determine this issue.

The plan existed by, it says, no later than 1998, reflecting the point I made earlier that the plans in relation to the other two entities existed before the crimes were committed and existed at a time when in neither case was the body concerned an independent state as characterised. So that the plan existed then, and I relied then, as indeed I do today, on the consistency of this -- I relied, on the earlier occasion, as I do today, on the consistency of the plan with the activities that had happened in Croatia and Bosnia, for that very consistency shows that they were all part of the same mental process, of the same mental plan. ³¹⁵

JUDGE HUNT: Yes. Well, then, let's move on to your point about the witnesses.

In paragraph 55 of your brief, you said as former members of the accused's inner circle, these individuals have expressed credible security concerns as discussed in the Prosecution's motion and during the hearing. May I suggest to you that there's not a word in either your motion or in the transcript which supports that there have been expressions of concern by any witness. They're all matters of this is life and the Prosecution expects and there are security problems, but there's nowhere anywhere any previous statement any witness has expressed concern. Now, if you take what is usually done for protective measures, we usually have the material placed before the Chamber in which that is recorded, but it hasn't been recorded anywhere here except for the first time in your brief.

MR. NICE: Your Honour, I'm aware of the approach that Your Honour has taken in particular when presiding over Trial Chambers in relation to protective measures, and it may be that there has been a developing practice and a changing practice in relation to protective measures, and it may be that there are still differences of approach in other Chambers, but I take entirely the point that at the moment there is nothing expressed of the kind that Your Honour required to grant protective measures in those cases over which Your Honour presided. However, a few points. First, as I made plain before and repeat now, insider witnesses are inevitably still very much in the process of development. That was inevitable because many of them, only for the first ³¹⁶ time, became available on the detention of this particular accused and the process of preparing the ground and they becoming willing witnesses and so on takes time. Thus we may in certain cases only be at the stage where I can do no more than set out what the position is understood to be because we haven't quite reached that final position of expressed fears announced by actual witnesses.

I -- yes, I don't flinch from that, but the Chamber, in our respectful submission, is entitled to and actually obliged to look not just at the material I'm in a position today to add about these particular witnesses but to look at its experience in other cases, to look at what we do know about witnesses who simply from time to time disappear, to look at the expressions of fear that are sometimes reflected in other trials by concrete acts that follow and show the fears were well-founded. To look at all that material, and to say we had a particular category of witness that we have identified, it is quite inevitable, as indeed is our experience, that fear is a regular feature of the approach of these potential witnesses.

And I must make this point: In a case like this, with an accused whose - I borrow the amici's words - modus operandi may very well have been to leave few footprints behind him, we may ultimately get the best evidence from just one or two such witnesses. We don't know yet. And therefore, the risk is one that, in our submission, has to be taken very seriously and hasn't been addressed by the Trial Chamber.

JUDGE HUNT: Well, only because you had never previously said that these proposed witnesses had expressed concern. ³¹⁷

MR. NICE: If I expressed it differently, I'm so sorry.

JUDGE HUNT: I'm just reading what you said in your appellant's brief. You said, "they have expressed," and that is an unfortunate expressionism.

MR. NICE: If it overstates the position, or if it's a reflection of -- it may not overstate the position, but it may be a reflection of material that isn't before us in a black and white form.

JUDGE HUNT: One matter that the Trial Chamber didn't consider but I think it's open to us to consider if we're reopening this whole issue, what about Rule 94 and judicial notice? Surely these are the very cases to which judicial notice must apply.

MR. NICE: If Your Honour is suggesting that a witness of potentially great value giving evidence of background in relation to one trial could have his evidence then adopted in another, two or three points of concern arise: One, anecdotal but personal; so far in this Tribunal, I haven't had a great deal of success with the application of that Rule and have found it fairly restrictive in its scope.

JUDGE HUNT: That, if I may say so, is a result of the problem where you have different accused in different trials and with access to different material to affect the findings. Here you have the same accused and you say all three areas are relevant, and these witnesses can give evidence in the first trial about all three.

MR. NICE: That brings me to the second point, and that is this: The Trial Chamber in its ruling clearly envisages that evidence would be separable. It makes this clear by its reference to the possibility of ³¹⁸ excluding evidence that would be, as it were, cross-prejudicial. I use a shorthand. If that's right, then one could reasonably envisage that the Trial Chamber would be restricting the evidence on one indictment to what it decided is absolutely relevant to that indictment and would not permit a witness to give all of his evidence. This is, incidentally, another reason, and I'll perhaps, with your leave, come back to it in a second, why joinder should be accepted. But that approach would seem to be clearly to the effect that evidence should be partitioned. Therefore, if in the trial that goes first, let it be Kosovo, such a witness gives evidence and is restricted because the Chamber says, "We can't have his Croatia Bosnian evidence, that's for another time," then the application of the judicial notice provision would not work. And third, there's the issue of cross-examination. For the same reasons I've already given, the Chamber would inevitably be restricting any cross-examination or observations by the accused which might be used as the basis for questioning by the amici or the Chamber itself to that which related to that particular trial. And again, the scope of the witness's evidence would be restricted, and 94 would not save the day.

JUDGE HUNT: And to my last point, and this is about the state of readiness for the Prosecution to commence Croatia and the Bosnia matters, during the course of the hearing, you said that you will be ready by summer, although you would prefer autumn, and then only if you worked very hard and you got some additional resources. I wish you the best of your British luck in getting additional resources. But let's assume you get them. As somebody from the Antipodes, those phrases "summer" and "autumn" ³¹⁹ don't mean very much to me. Can you tell me what you intended? What is "autumn," for example? I mean what month of the year?

MR. NICE: I think in this hemisphere, it's September, and that's what we originally envisaged. And I hope to set Your Honours' concerns at rest: Yes, the institution as a whole has difficulty finding additional resources. Yes, at the time I made those observations, there were serious resource difficulties on getting the trials ready any earlier than that. Yes, those difficulties have continued. But when you can't get new resources, you can sometimes redeploy from within in order to meet what the Prosecutor decides may be her priorities. And we have laid a plan, and according to that plan, although it would involve a very great deal of work by all teams involved, we could have a provisional list of witnesses, exhibits, and pre-trial brief by two months, say, the 1st of April. And if it was decided both to join but to defer for a chronological start - a new shorthand - then we would be ready by the 1st of July.

JUDGE HUNT: I was just going to say that certainly was a speedier one than you were prepared to give as an estimate previously. Now, in relation to that, the Bosnia indictment is obviously based upon some very familiar incidents. There's Srbrenica and the Foca cases and Sarajevo, and they have all been the subject of trials that have been completed or underway, so you will have little difficulty being ready in relation to those in the Bosnia indictment.

But there are a number of incidents, a great many of them, which relate, for example, to the Krajisnik case. And I'm not sure whether you are aware of the difficulties that your colleagues are having in getting ³²⁰ that one ready for trial. I can give you a short chronology of the changing success or lack of it, if you wish. But at one stage, they were talking about, with the translation problems, the translations wouldn't be completed until March 2003. Now, that obviously has been corrected somehow.

But bearing in mind that they are even now unable to say when that case will be ready, and the last thought of it starting was, I think, in September this year, what weight can we place upon these estimates that you have given of being ready the 1st of July of this year?

MR. NICE: Three points, I think in answer to that, two or three points: First, we are, of course, aware of the difficulties of other cases, although not as intimately as aware as they are. Second, because there is a common crime base to many of these cases, you will be heartened to know that those leading the investigation and the lawyers are taking all steps they can to avoid any duplication of preparation and to use each other's efforts to save resources and to abbreviate the lead time for each case.

Third: I suppose I should allow for this as a possibility in relation to the very large crime base of the Bosnian indictment. If by July there was still some outstanding crime base work to be done -- one hopes it wouldn't apply, according to the essence, we can be there. But if some remaining crime base were to be done, the interests of the trial could either, (a), require that that material come in late, or a little late; or (b), could require an appropriate amendment of the indictment for, of course, it is not always necessary to have every municipality ³²¹ covered in every case. Now the overriding principle in the case of this accused was that it was appropriate - and one can understand this - that every crime base should be covered that's covered, as it were, in the subcases. That is not actually always a policy that has been followed in other cases. And I referred earlier to the balancing act that always occurs in these cases. If a balance had to be struck, it could sometimes be struck in a way that may exclude evidence.

JUDGE HUNT: Thank you, Mr. Nice.

JUDGE JORDA: [Interpretation] Judge Guney.

JUDGE GUNEY: [Interpretation] Thank you, Judge Hunt. Mr. Nice, in the light of the arguments you developed in your brief, and also in the arguments you put forward to this Chamber today, could you further develop or clarify your views as to the following specific item: The decisive difference there may be in time and space in the various locations and time periods as covered by the Kosovo indictment and by the other indictments. There's a time gap of three years. Does it negate the thesis of a common scheme? That is the point I put to you.

MR. NICE: Thank you, Your Honour, for the opportunity of making our position plain. It doesn't negate the position at all for, perhaps, two or three reasons. First, as a matter of fact, if it's significant at all, the time period is actually rather less. Violence begins almost immediately after Dayton, six months afterwards, and in any event, was in full swing in 1998. It happens not to have been charged before 1999, but never mind. So factually, the period is much shorter. Second point, the time interval is wholly irrelevant if the ³²² material is there to sustain the argument that it's all pursuant to the same plan. Now, there are many examples that are referred to in the brief from other jurisdictions of -- is it politicians in America charged with corruption offences, and there are offences lasting six years, and cases in England where nine years between offences is not an excessive gap. So there is no automatic bar of any kind that derives from an interval of time. It's simply a question to see whether what happens is pursuant to the same plan. We say that it is clear and will become quite clear from all the material that the plan in the mind of the accused was reflected in these different ways.

And perhaps the third point that I could raise is this: Supposing merely hypothetically that there had been two other locations where it had been necessary for him, pursuant to his plan, to take similar actions for Vojvodina or Montenegro, one in 1996 and one in 1997, or one in 1997 and one in 1998, the presence of two other intervening links in the chain would make no difference. Their absence from the chain makes no difference. The chain is complete if, and we say it is manifestly complete, all acts are pursuant to the same plan. It's as simple as that.

JUDGE JORDA: [Interpretation] Thank you. Judge Pocar, and then Judge Meron. Judge Pocar, do you want to put your questions?

JUDGE POCAR: Just a small question. I would like the Prosecution to elaborate a bit more on the interpretation Mr. Nice has given of Rule 49 of the Rules. I had the impression that your interpretation, Mr. Nice, leads, in fact, to applying to Rule 49 the same test that would ^{323 BLANK PAGE 324} be applicable under Rule 48, so the same test that would be applicable for joinder of accused.

Do you see any weight in Article 49 using a different expression as compared with the expression used in Rule 48? I'm aware that your interpretation may find a certain support in the French text of the Rules, but of course, both texts have to be taken into account. So the specific point I wanted to put before you is the difference in expression between the two Rules, and whether this has an impact also on the relation you make in interpreting Rule 49 with reference to the definition in Rule 2.

MR. NICE: Your Honour, yes. I've given thought recently to Rule 48 and its potential impact. It seems to me that, of course, both of them must build on the definition of Rule 2 insofar as that definition doesn't need to be amended, changed or made elastic in light of the context. And Rule 2 does seem to be a very straightforward rule, permitting of two alternative ways of the same transaction test being satisfied, either as a single event or as a series of acts subject to a plan. And before I move from that, there can be no way in which Rule 48 could properly be construed excessively narrowly if the various trials before the Chamber, not before other Chambers, are properly constructed because there are many trials of middle- and senior-level politicians and military men where it couldn't be said that it's the narrowest interpretation restricted by time and space that has been effected. They are all broad in geography and time so that Rule 48 is built on that two-part definition in Rule 2.

Rule 48 says that persons accused of the same or different crimes ³²⁵ committed in the course of the same transaction may be jointly charged and tried. Rule 49 simply says that two or more crimes may be joined in one indictment if the series of acts, and I miss out the other two words, form the same transaction and the said crimes were committed by the same accused. If we omit those two words, I'm not sure that there is any difference in construction in any event. And those two words take the matter no further and, it seems to us, are probably surplusage, or probably best interpreted by adding a comma between the two of them. But I don't think anything else flows from it than that. If I haven't met Your Honour's particular concerns, let me know and I'll try and deal with them in another way.

JUDGE POCAR: Thank you.

JUDGE JORDA: [Interpretation] Judge Meron.

JUDGE MERON: Thank you, President. Judge Guney asked you a question about the three-year gap. I would like to approach that same subject from a somewhat different perspective. You will recall that as a part of the "same transaction" analysis, the Trial Chamber cited the Dayton agreement as marking a clear separation between the acts charged in the Bosnia and Croatia indictments and those charged in the Kosovo indictment.

Does Dayton undermine your "same transaction" argument?

MR. NICE: Not at all. And the learned Prosecutor rather falls sore perhaps this issue where she revealed that, of course, it was hoped and expected, perhaps, by Mr. Rugova that Kosovo's problems would be solved there. Not at all. It was off the agenda by reason of the acts of ³²⁶ this particular accused. He was able to leave his plan uneffected, and he was able to put it into effect when it was necessary. So Dayton is an irrelevance for the purposes of the time gap.

JUDGE MERON: Thank you. My second question pertains to the scope of our review. You will recall in the oral hearing on the Prosecution's motion for joinder, Judge May outlined a two-stage analysis, the first being a legal question relating to the same transaction; and the second a discretionary one involving factors to be weighed. And my question is this: Assuming that the Appeals Chamber agrees that there was an error in law, error of law regarding the same transaction analysis, what are the limits of our review of the Trial Chamber's weighing of discretionary factors? In other words, is the Trial Chamber's weighing subject to the same deference as any other discretionary ruling?

MR. NICE: Two points: I think first, as we make clear in our brief, the material before this Chamber is the same as, as full as, the material before the Trial Chamber. Accordingly, there is no need, once the correct legal test is identified, to defer particularly to their judgment in the way that deference is required where, for example, the Trial Chamber has been dealing with witnesses who it has seen in person and has had extensive evidence and argument and so on, and a particular matter falls for review by an Appeal Chamber part way through a trial or at the end of the trial doesn't arise here. Same material available to each Chamber; therefore, no special deference is required. The second point, one possibility - we do not encourage it - the ³²⁷ reverse, would be if you found there was an error, then it could be said send it back for reconsideration. But in light of the time scale and for all sorts of other reasons, we would ask you not to do that but to make the decision here and now. But that's a possibility. And therefore, this Chamber is in a position to exercise the discretion afresh, and we would invite it to do so.

JUDGE MERON: My final question pertains to the question of management of the trial. You will recall, Mr. Nice, that the Trial Chamber was very much concerned about judicial economy and the timetable for the trial or trials. If all the three indictments were joined, do I understand that the Prosecution would give an assurance or it is giving an assurance to the Appeals Chamber that (a), you will be prepared to begin the Kosovo prong of the joint trial on February 12th, and that also in the event of a joinder, the Prosecution would be able to avoid any gaps between the three prongs of the joint trial?

MR. NICE: Yes to both of those questions. We can make -- give you those assurances.

Can I use your question just to make one point that I desire to make? And is worth emphasising because it arises from the same general topic and it's this: We have no doubt that economies, judicial economies, will be far greater in a single joined trial than with separate trials for several reasons. First, there's the question of overlapping witnesses who only come once and will be able to cover matters comprehensively. Second and realistically, where a Trial Chamber starts the process of introducing economies by application of 92 bis and by use of other ³²⁸ means of getting evidence properly before it in a short form, once it starts doing that, it begins to have a cumulative effect, and we are quite satisfied that if a single Trial Chamber had all this material before it, it would probably find ways, in cooperation with the Prosecution and others, substantially to save time that would otherwise be spent in two trials each starting at the beginning and trying to find ways of economising.

JUDGE MERON: Thank you, Mr. Nice. I have no further questions.

JUDGE JORDA: [Interpretation] Thank you, Judge Meron. Many questions were put to you. I will make a first comment addressed to the Prosecutor.

You are putting a great deal of energy into demonstrating the scheme and the common design. What I would like to know is how could that common design -- why was that not put forward earlier on? How was it that in the Office of the Prosecutor that plan was not conceived of beforehand, because we have now, in fact, with -- three indictments that were separated temporarily. There were two separate Prosecutors but there is one single Office of the Prosecutor, and so I don't understand. This is question that I'm asking you.

How can one speak today about a great common scheme, common design, whereas your own office did not consider them so single when the -- when the indictments were drawn up at the time of preparing the indictments? It's a question of strategy, Mr. Nice.

MR. NICE: I hope it's not a question of strategy, Your Honour, because I'm sure that the Prosecutor wouldn't have done anything on ³²⁹ strategic grounds even if she'd done them on practical grounds. The fact of the matter is that the Kosovo indictment was ready to be indicted first and it was thus indicted. The investigations into the other two areas took some time to reach fruition, for understandable reasons not the least the delay in cooperation of the various states concerned.

When they were available for indictment, two alternatives were possible. One was to amend. We accept that. And one was to prefer separate indictments so that each state could see how cases were put in respect of its victims.

Whatever reason, and I take general but not particular responsibility for this, the decision was made to put in three separate indictments rather than to go for joinder.

Now, as it happens, that has worked rather fairly for the accused, because if it had been done by amendment, he, and he's somebody not recognising the Court, would have had on him the burden of justifying severance if it hadn't been argued on his behalf by anybody else. So in the event, it's perhaps worked out rather more fairly. But the substantive point, in our respectful submission, and I think it comes from Kovacevic but I'm not sure, the formulation of charges, which is a matter of history, cannot and should not affect the proper determination of the scope of an indictment at this stage. And if I simply say to Your Honour that has always been the view of everyone in the office, including the Prosecutor herself, I know, that this was one case. Of course, the Prosecutor herself may come from a jurisdiction or ³³⁰ have experience of jurisdictions where problems of joinder are foreign or unknown, but be that all as it may, it's always been regarded as one case within the office and always expected that it should, if the material was available and the indictments were ready, be dealt with as one case, and it would be, in our respectful submission, inappropriate and wrong to determine this according to pleading history.

And if I can add one point here that it's a sort of common sense point, but it has impact. In our respectful submission, it would seem wrong and it would be wrong for this accused to face two trials. This Tribunal is providing -- legally can he face just one? It will probably be expected that he should be dealt with in one trial. And apart from all the other difficulties of a forensic nature that would lie in the way of his being dealt with in two trials, it would simply be just that he falls for determination once in relation to his culpability, if any is proved, in relation to these unhappy events of the former Yugoslavia.

JUDGE JORDA: [Interpretation] Thank you. My second question is that you would have two trials because one remembers that Mr. Milosevic is alone in two indictments, Bosnia and Croatia, but not alone in Kosovo. And as we would like in this Tribunal, all the accused must be present here. There would be some point whether there would be a second trial, a Kosovo trial, because by the 2nd [as interpreted] of February, it would be an illusion to think that the Kosovo trial could bring together Mr. Milosevic, Mr. Sajinovic, Mr. Ojdanic, and Mr. Stojiljkovic. So my question is, in respect of the witnesses, you answered Judge Hunt and you said that there was really prejudice to the accused in ³³¹ respect of the witnesses, that these witnesses seem to be close to the accused. But does that mean that for that future second Kosovo trial you consider that the question of the trial -- of that trial would be compromised? Do you understand what I mean?

MR. NICE: I do understand what you mean, and it's a real and practical problem. And I'm grateful that you've identified it because there are two things I want to say about it.

First, however the cases may be managed, it's likely that there would be two Kosovo trials. The only way in which there could ever be one would be if all the accused who are ever to surrender or to be surrendered surrender first. So it's one of the unhappy inevitabilities, possibilities. There are always going to be two Kosovo trials. Secondly, yes, there is some concern that witnesses who may come for the Kosovo trial of a particular type will be uncomfortable about coming a second time, dissuaded from coming a second time, frightened from coming a second time, and that is something that has to be lived with, but that will have its consequence on those other accused. Here the consequence would be for this particular accused and is a very grave consequence that I do not wish to envisage.

JUDGE JORDA: [Interpretation] Another question. In your brief, you mentioned on several occasions or, actually, you cited references in respect of the Nuremberg trials, particularly as regards the issue of distinction transactions, and you asserted that in Nuremberg that had been conceived of one single common enterprise, which, according to you, went back to 1919. Could you give us some clarification about that, further ³³² details?

MR. NICE: I may seek some assistance on this. I think -- it doesn't -- it goes back in the indictment to an uncertain date but is referred to in the pleadings thereafter as arguably commencing at a particular date, 1919. I think that's as far as I can take you in the detail of that. The materials are in the book of authorities. It may be I can get some further assistance from one of my colleagues on that if you require it. But I think that the formulation of the charge was simply on days before, and it was clear from the -- it was clear from the presentation of evidence that they countenanced a very long period before in the build-up to trial.

I see I'm getting some acknowledgement. Perhaps I'm right on that.

JUDGE JORDA: [Interpretation] Do you want immediate assistance or are you going to look for some. Mr. Farrell can help you right away? Would you like -- I suppose that you studied the Nuremberg indictments and that you looked to see whether they were several indictments at the outset. That is what the Tribunal is interested in. No immediate answer?

MR. NICE: Just the one indictment. Just the one indictment. Not a question of amending, as far as we know; just the one. There was one single indictment, yes.

JUDGE JORDA: [Interpretation] My final question is that, in concrete terms, you know that this Chamber had taken a provisional decision stating that, theoretically, that would not prevent the Chamber ³³³ from exercising its discretionary power but that it should not mean that it has any power of superiority. But we did say in our previous decision that -- and that's what authorised this appeal, that the trial on Kosovo would begin on the 12th of February.

In concrete terms, how would things go? How would they happen? So on the -- assuming that -- that the Chamber were to grant your request, how do -- on the 12th of February would things go? What would happen? Would we start with Kosovo just like that or would you ask Chamber III to reconsider the issue? How would it be looked at? How would you go about doing it?

MR. NICE: If this Chamber were to order joinder of the indictments, I'm sure it would be a proper courtesy to give the Trial Chamber itself the opportunity to consider its own conduct of its own trial in light of that ruling. What we would suggest to the Trial Chamber would be that, if they wished to carry on with the February the 12th start date, there should be opening addresses on February the 12th effectively restricted to Kosovo, and of course the opening about Kosovo will in any event take in some of the earlier history and some of the intervening events but not in great detail; that the evidence on Kosovo would then begin, and we would, so far as possible and sensible, start the evidence with crime base evidence because that has almost the guarantee of no linkage to other cases. We would then provide provisional lists of witnesses and exhibits and a provisional pre-trial brief or amended pre-trial brief on the 1st of April, and no doubt the Chamber would then, in its management of the case, have to decide whether there should be a ^{334 BLANK PAGE 335} further opening statement in relation to the balance of the joint indictment and when that should be.

My provisional view is that we might encourage the Chamber to take those steps either at a particular part in the year, the end of the session or the beginning of the next session, or alternatively at a particular stage in the evidence, or alternatively when all the Kosovo evidence was over.

One way or another, and as I said earlier, subject to necessary time that would have to be allowed to the accused to deal with administrative matters, there would be no necessary break in the presentation of evidence and argument for the three joined parts of the case, or two joined parts of the case.

But that's how I would see it happening, but it would be subject to the Trial Chamber's management, of course.

JUDGE JORDA: [Interpretation] Thank you, Mr. Nice. I was thinking that insofar as you were prepared for a joinder, because that's what you wanted, I thought on the 12th of February you would be very eager before Trial Chamber III to show a great overall picture before going first into Kosovo and then to something else. I thought you would give a kind of a -- kind of a great fresco because you're sure that there is a common plan in the three indictments. So you seem to be saying no, it would begin with Kosovo and then it would continue with the others, or am I wrong?

MR. NICE: I would very much like to give the great fresco on the 12th of February and, to the extent possible and if that's what the ³³⁶ Chamber wanted, I would, but I also have to reflect on the fact that by then the accused had not by then been served with a witness list or list of exhibits and that there would be a degree to which I would be properly constrained because I hadn't yet decided and communicated what the evidence was going to be. But I would be very much in the Trial Chamber's hands.

JUDGE JORDA: [Interpretation] Well, I wasn't planning to interfere with what the Trial Chamber would do, Trial Chamber III, but I simply want to know in respect of this common enterprise that you have been referring to in order to justify application of Rule 49, I wanted to know whether that would be clear as of the 12th of February or would we be moving chronologically in respect of the case. That was the comment I was making.

Very well. Let me turn to my colleagues. Have they any further questions to put to the Prosecution? No. All right. Now let me turn to Mr. Milosevic. You have heard these long discussions about the possible joinder of the two indictments because a decision has been taken to -- already taken to join Croatia and Bosnia. So you understand that we are talking about whether this -- whether the Kosovo indictment should be joined to the other one. You have the same amount of time to respond if you wish, the same time that the Prosecution did. Would you like to use that time, and what do you have to say to the Chamber? You may remain seated, if you please, or you can stand, as you like.

The floor is yours, Mr. Milosevic. ³³⁷

THE ACCUSED: [Interpretation] By adding up three lies, you will not get the truth. You will simply enlarge the lie itself. So these three indictments have to have a link that goes through all of them, to use the expression that I heard here, and that link is the crime that has been committed for a long time against Yugoslavia and against my people. This here is obviously a huge abuse of power which is aimed at creating a historic fallacy that will be used by those to accuse those who defended Yugoslavia of breaking it up. It will also be used to accuse those who defended their country of crimes, and this will be done so that those who supported separatism, terrorism, and secession of Yugoslavia would in the end be -- would receive amnesty, and all of this because they were supported by the powers who wanted to establish their control over the Balkans so that they would use this geopolitical location to further their control of other areas.

You have spoken here about three linked issues, but authors of that so-called plan are so certain of it that it took them ten years to bring indictments for Croatia and Bosnia. These indictments are absurd. They're nonsensical because Serbian politics, Serbia, and I myself were involved in creating peace in Bosnia and Croatia. We were not involved in making war, and we used all of our influence in order to achieve peace as soon as possible.

At the very beginning of the conflict in Croatia, we supported finding a political solution, and based on those efforts of ours, we were able to immediately establish the protected zones of the United Nations and to calm the situation down. ³³⁸ On the 24th of March, 1992, late Croatian President Tudjman addressed his nation from the Ban Jelacic square in Zagreb by saying verbatim, "There would be no war if Croatia didn't want the war. However, we believe that that was the only way to achieve independence for ourselves." And it is true, there would be no war if Croatia didn't want one, but Serbia did not participate in that war as a warring party. It was an internal conflict.

And why did Croatia want this war? Not because it wanted the Croatian nation to exercise its right for self-determination. They wanted this war because they wanted to expel close to half a million of Serbs from Croatia, half a million of Serbs from Serbian Krajina, Serbs who lived there for centuries on its own territory. They lived there as people would live on their own territory. They did not usurp the territory. And this continued until the Croatian government, who supported the war, came and took power. Croatia had a Constitution which said that Croatia was a state of Croatian people, Serbian people, and all other nations living in Croatia. This Croatian Constitution was amended. Serbs lost their rights, and they lost their status of constituent people in Croatia and this is why they rebelled against it. At that time in Croatia, Serbs didn't even -- at that time, Serbs didn't even know about this. And now you are talking about a plan in which, with the support of Germany, at the end of 1991, there was a premature recognition of Croatia which fueled the beginning of the conflict. And let me state this once again. The only aim, the only goal of Serbia in that conflict was to achieve peace as soon as possible. We ³³⁹ were never called on the carpet for those conflicts by Croatian government, and here today we are being told that there was a plan throughout all that time.

The only thing that is clear is that there was a plan against the state which at that time was a model state of European federalism. That was the state of Yugoslavia. And in Yugoslavia, we had multiple nations living in a federal system in which they were entitled to have all rights, all equal rights to live and develop successfully and to serve as an example for the entire world of how people can live together. We fought for Yugoslavia, for preserving Yugoslavia throughout the whole time. And finally, every fact will simply support what I am saying. Federal Republic of Yugoslavia is the only state that has maintained its ethnic composition. We had no deportations there from the beginning to the end of the Yugoslav crisis. That wasn't the case in other republics of former Yugoslavia. Half a million Serbs were expelled from Croatia. And looked like what happened in Bosnia, without even going into other areas of the former Yugoslavia.

So I would call this an evil and a hostile activity aimed at justifying the crimes that were committed against my country and by using this tribunal as a means of war against my country. Let us take a look at Bosnia and Herzegovina. We attempted to achieve peace from the very beginning in that country. Look what happened to Cutiliero's plan which was supported by everyone. At the initiative of American ambassador, the Muslims rejected this plan and then the conflict erupted. So how is it that Serbia is accused of anything that -- ³⁴⁰ everything that took place in Bosnia when it is a well-known fact that we tried to use our influence to establish peace there, that we used all -- all initiatives aimed at finding peace?

In 1993 in Athens, there was a meeting at which the Vance-Owen Plan was signed. It was signed by all parties. I went to Pale together with Mr. Mitzatakis and former President of Yugoslavia Dobrica Cosic to support accepting this plan. Unfortunately, it was rejected on the 3rd or 5th of May - I can't remember any more - in 1993. And at that time, we introduced a blockade of Republika Srpska in order to force them -- in order to force their then-government to accept that peace plan. That was the role that Serbia played. We tried to establish peace. And the only thing that we reiterated was that the only formula for achieving peace in Bosnia was the formula that would equally protect interests of all three nations in Bosnia and Herzegovina; Serbs, Muslims, and Croats. Dayton managed to succeed because this formulas was accepted, because they tried to equally protect interests of all three nations. And now here we are told that Dayton was supposed to deal with Kosovo as well. This is nonsense. Dayton negotiations were organised to impose peace in Bosnia and Herzegovina, and nobody even considered opening up the issue of Kosovo, which is an internal issue of the Republic of Serbia. Nobody could even dream that somebody could attempt to make this into an international issue.

You cannot link Serbia nor Serbian politics with any crimes, and you can especially not sue and charge for acts for which we were never condemned. We were simply shown respect for huge peace efforts that our ³⁴¹ country invested into those events. It was invested by Serbia and Serbian politics.

And if we are talking about Bosnia, let me tell you that 70.000 Muslim refugees lived in Serbia during the conflict in Bosnia. Do you think that somebody would want to leave their house and go to the country which endangers him? How many lives did we save? How many of your hostages we went to save in Bosnia? We saved your pilots. We saved your soldiers. How many peace initiatives were supported by us? And in the end, we were the ones who were most responsible for the fact that peace was established and for the fact that Dayton was, in the end, successful. We managed to achieve full peace and detente.

And let me tell you how the trouble started in Kosovo. It started because -- precisely because there was a plan to put the Balkans under somebody else's control, to put the territory of the former Yugoslavia under somebody else's control. They started insisting on destabilisation of Kosovo, and they started doing that when it became clear that everything will come to a peaceful end. And this is how it all happened. In November of 1997, a summit of southeast Europe was held in Crete. All of us were present, heads of state and prime ministers of Eastern European countries. At that time, on our own initiative, we spoke very much about removing barriers, about removing tariffs, about integrating within the southeastern Europe and about improving our cooperation. I had direct dialogue with Albanian prime minister Mr. Fatos Nano. We spoke about improving our relations, removing visas, improving transport and all other cooperation. Mr. Fatos Nano and myself spoke in ³⁴² front of TV cameras. And at that time, he said -- he mentioned all of these matters that he and I discussed. And also said that the issue of Kosovo is an internal issue of the Republic of Serbia. This all promised that there would be a peaceful resolution to all problems. And this, in fact, sounded the alarm that alerted those forces that continued to carry out crimes against my country. These are the forces that attempted to destabilise Yugoslavia and to carry out the intervention that they, in fact, did carry out. After about a month or two, a letter arrived from Kinkel and Vadrine stating how concerned they were about Kosovo. And ten years had passed in the meantime. Ten years had passed from the time when you claim that Serbia had taken control over their own territory. There were no murders during that time, nor robberies, nor arson, nor arrest, nor torture in Kosovo. We didn't have a single political prisoner in Yugoslavia. Not a single one.

20 Albanian newspapers were published in Kosovo in Albania language, and you could buy them at every corner. None of these newspapers were ever banned. Albanian parties operated freely, including separatist political parties. Somebody here said we were tolerant with respect to them. No. We simply believed that everything was in order except for violence. And at that time, those forces that are responsible for breaking up Yugoslavia, for occupying Yugoslavia, gathered criminals throughout Europe and sent them to Kosovo to organise various organisations, and they instigated terrorist acts in the beginning of 1998. And then they failed. And by the autumn of 1998, they were completely eliminated, and they were sending back on tractors the weapons ³⁴³ that they smuggled through. And during that year, they mostly killed Albanians.

I don't have facts to give you here, because I didn't know that I would be given opportunity to speak here publicly. I was only informed yesterday that I will have a hearing today. I had no idea even what this hearing would be about. So therefore, I don't have the facts ready here to give them to you. But let me tell you something --

JUDGE JORDA: [Interpretation] Mr. Milosevic.

THE ACCUSED: [Interpretation] -- Albanian terrorists killed two and a half more times Albanians during 1998 than Serbs. They killed Albanians who were policemen, who were mailmen, who were forest takers, and who were retirees going to pick up their retirement benefits. They tried to create terror among Albanians and to kill as many Serbs as possible. We protected our citizens, both Albanians and Serbs, from terrorism. Their attempts failed in autumn of 1998. And then Mr. Holbrooke came to ask for a verification mission to create a pretext for attacking Yugoslavia. And let me --

JUDGE JORDA: [Interpretation] Mr. Milosevic, allow me to interrupt just for a minute. It's not for me to take the time away from you. You are going to be given the opportunity to speak again. This Tribunal, the legality of which you challenge, gives you ample opportunity to fully express your views.

Let me make this comment to you: I have the feeling that you are ready for trial straightaway. You could start the trial today, this very day, so it seems. Very much to your credit, you seem to be ready for ³⁴⁴ trial. But let me try to ask you, if you can try to do so, ask you not to totally forget the issue. We are the Appeals Chamber; we are not the Trial Chamber who is going to try you. We fully understand that for you, the threat that runs across the three indictments is the fact that your country has been victimised. We heard what you said. But do not confuse the levels of judgment. You will be given ample time, the same time as given to the Prosecutor.

I can tell you that as the President of the Appeals Chamber, you will be given all the time you need. But don't mistake your purpose. What you say shows obviously that you believe in what you say. It is your right. That right will be granted to you. But let me remind you that in this instant case, we are dealing with procedural matter. It is important to us, maybe not to you but it is to us because we are the custodians of international standards, of the demand for an equitable justice. So we ask your views.

At the end of the day, do you want to be tried on one distinct trial, the Kosovo trial, that would be separated from the Bosnia and Croatia trials? Or do you want to be tried in one trial? This is a simple question. You may decide not to answer it. We will take this in the record. I'm going to let you speak again, but please answer this question. Of course, you are an accused who is not deprived of common sense, of intelligence, but I want you to understand the full extent of the question raised here. Thank you for trying to do so. You have the floor again.

THE ACCUSED: [Interpretation] First of all, this is the first time ^{345 BLANK PAGE 346} that I'm not being interrupted, and this is the first time I'm given an opportunity to say something. And every opportunity that I'm granted to address the public regarding the crimes that have been committed against my country will be used by me. I am not doing this because of procedural reasons. I am not interested in procedural reasons. I am doing this in order to reply to the attack that is being conducted against my country and my people, and the crime that is still being committed against them. I wish to draw attention of the public that --

JUDGE JORDA: [Interpretation] You will be given even more time at the time of the trial. I'm sure you will understand that this was not the purpose of the hearing today. You can start speaking again. But let me tell you this, because you, too, you go beyond this courtroom. You address your audience. I also am accountable to the international community which created this Tribunal. Me, too.

I want this to be stated here clearly in this courtroom: The Rules of Procedure and Evidence matter very much to you, but they matter very much to the Prosecutor, to civilisation altogether. They must be complied with. The discussion at stake today revolves around the question of how the trials are going to start before the Trial Chamber. I don't want you to say and to be able to say that I interrupted you. So of course I'll take the time I spoke away out of the time you are being given.

Please, you have the floor again.

THE ACCUSED: [Interpretation] I wish to emphasise that the crimes that are being committed against my country are still being committed ³⁴⁷ now. The last Serb that I'm aware of was killed in Kosovo over Christmastime. 350.000 people were expelled from Kosovo under the auspices of the United Nations, under the protection of terrorist activities of Albanian terrorists who are protected by the United Nations, from the arrival of this so-called protection forces of United Nations who, according to the Resolution 1244, had an obligation to guarantee personal security and property security to every citizen of Kosovo under their protection. Albanian terrorists managed to expel 350.000 people, burned tens of thousands of houses. Sometimes 50 or 60, and sometimes all Serbian houses in a village would be burned, and this was all carried out in full view of the troops who came to Kosovo as occupation troops under the flag of the United Nations. They transformed themselves into occupation forces and became allies of those same terrorists that killed and set on fire so many people. And this is going on to this very day. And they say that they are not aware that this was taking place. Can you believe that tens of thousands of houses were set on fire without forces who were present there being aware of that? Can somebody damage and destroy - and I'm now referring to that time during the tenure of the United Nations forces - 107 Serbian churches? Can somebody destroy and set on fire a church without forces being aware of this? So now we are talking about associating for criminal purposes of these forces that carried out this criminal conduct against Yugoslavia. They associated themselves with Albanian mafia and drug trafficking mafia in order to commit a crime not only against Serbs but also against all other non-Albanians, including the Catholic Albanians, including even ³⁴⁸ Albanians who in any way by even, for example, accepting their monthly retirement benefits displayed some kind of loyalty to Serbia as their state. What is taking place there, in fact, rehabilitates the Nazi policy, the policies of Mussolini and Hitler, and this big noise that is raised here about Greater Serbia, the so-called idea that we were described here which never even existed.

So all this noise about Greater Serbia is raised in order to cover up the fact that Greater Albania is being created, the same Greater Albania that was created by Hitler and Mussolini during World War II. So compare these two schemes with what is being carried out now, where they want to take territory away from Serbia, Montenegro, Greece, and when they want to impose another kind of despotic rule.

So it is obvious that this is a crime. It is obvious that this link that connects all this indicates that there is a crime being committed against Yugoslavia. But I want to tell you that is not easy to forge historical facts. It is not easy to forge them even when a small number of people is familiar with them. And it is completely impossible to forge them when the entire nation knows of these facts and when millions of people know of these facts.

I don't want to offend anyone here, but Judges in this trial, in view of their roles, should be not you, who are professional Judges, but those who decided to kill children in my country, who launched NATO aggression against my country, who dropped 25.000 tonnes of bombs during 78 days and killed mostly the elderly, women, and children. They should be the Judges. But the people will be the ones to judge in the end, and ³⁴⁹ not only the people of Yugoslavia but the peoples of all countries who care about freedom and equality.

Therefore, it is not -- it is for a good reason that we say that the people and the God are the final Judges. It is not just about me, the fact that I am being tried for something that was, in fact, my accomplishment, but also you and your employers who carried out crimes against my country should be judged.

And since you told me that I should request something from you, here is my request: I want to be freed. I want you to free me because you and the rest of the world realise that this battle that is being carried out against my country and my people is not something that I can evade. I have no intention of evading this battle. The fact that you are keeping me here in these not decent circumstances in order to deny any opportunity to me to express my arguments, this is not something that will serve as an honour to this institution, even if this institution were an illegal [as interpreted] one, and you are fully well aware yourselves that it is not a legal institution.

Now that we are talking of this institution, let me say that you should have accepted the opinion expressed here by amici curiae, that ICJ should decide on the ability of this tribunal to be the trier of the facts. However, you didn't ask for ICJ's opinion, and we all know why is that so.

So in view of this, let me call this criminal attitude in attempting to turn the victim into a culprit. And this refers to my people, to my country, and to myself personally. This is an unprecedented ³⁵⁰ attempt to turn a victim into a culprit. Therefore, I think that it would be logical and just to let me go because I will not flee. I am fully prepared to come to any hearing because this is not a battle that I will miss.

JUDGE JORDA: [Interpretation] Thank you. I would like to congratulate you. You took exactly the amount of time that was allotted to you. In fact, even less. I would like to respond to two points, and then we'll take a break. I would like to tell you that you are on equal footing, as you like, Mr. Milosevic, and if you do not have Defence counsel with you, that is simply because you choose. That has to be stated; that has to be clear. And even in detention, you have legal advisors, which is your right. It is also your right not to have Defence counsel here, but let's not speak about the fact that there is not -- the allegation that there is not an equal footing, and the Judges are here to ensure that equality is respected. As regards release, you can ask for that before the appropriate Chamber.

It is 11.45. We're a little bit late, but each party had to speak freely and did so. Now, we're going to resume the hearing at 12.00. The Judges will perhaps ask the accused some questions, and then we will hear the amici curiae, and perhaps the reply of the Prosecutor since the accused took the floor.

Very well. We suspend the hearing, and we will resume at 12.00.

--- Recess taken at 11.38 a.m.

--- On resuming at 12.02 p.m.

JUDGE JORDA: [Interpretation] We will now resume the hearing. ³⁵¹ Madam Registrar, have the accused brought into the courtroom, please. We will now resume our work. We still have to hear the amici curiae. But before that, we had anticipated the possibility of the Judges asking questions.

First let me turn to my colleagues. Any questions to ask? No questions.

If you allow me, Mr. Milosevic, I do have one question that I'd like to ask you and ask you to answer as quickly as possible. I am referring now to the Appeals Chamber. Must the Appeals Chamber deduce from the long monologue that you gave, must it assume that you have a kind -- as former head of state, that you have a geopolitical vision of the whole case, about the matters that affected your country? In respect of concrete terms - let me bring you back to concrete matters - must the Trial Chamber therefore conclude that you would prefer to defend yourself as part of a single trial or, to the contrary, to have two trials? My next -- my subsidiary question is: Do you not care at all? Could you answer us very specifically and very briefly, answer that question that the Presiding Judge is asking you. Thank you.

THE ACCUSED: [Interpretation] I think that these indictments, which are obviously false, should all be dismissed. I never heard of indictments without supporting evidence. I never heard of indictments that resemble political pamphlets with poor, bad intentions.

JUDGE JORDA: [Interpretation] Excuse me. I'm asking the questions here, Mr. Milosevic. You were able to speak freely a little while ago. We're not going to go back to that. ³⁵² I have a very specific question. I am convinced that a person who has held responsibilities, as you did, must understand what is behind my question. My question is not a political one. It is not one -- not political at all. It does not call for a political answer. I will ask the question again.

When you spoke, as you did, for 30 minutes a little while ago, when you spoke in a very summary manner of the -- all of the events, whether it be Bosnia, Croatia, or Kosovo, or even other provinces, does this allow us to conclude that you yourself, you the accused, would prefer to defend yourself as part of a single trial? That is my question. If you can't answer, simply say, "I can't answer." Or if you don't want to answer, say, "I don't want to answer." But let's not go into everything we already know and to what you've already said and in fact which should not be argued before us but before our colleagues. It's a very simple question, Mr. Milosevic. Can you answer me very concretely?

THE ACCUSED: [Interpretation] Well, precisely regarding what you mentioned, I wish to say that the entire world knows that this is a political process. So we are not here speaking about legal procedures that evolve into political ones. This is a political process to begin with, and as far as what I would prefer, I would prefer the truth. The truth is stronger than and louder than aircraft carriers and any kind of weapons. So the truth will triumph. And how you are going to conduct your proceedings, that's up to you. I will give you no suggestions regarding that. ³⁵³

JUDGE JORDA: [Interpretation] Very well. I thank you for your counsel. Please be aware that the trial -- the Chamber will try to understand exactly what it is you said and that is what concerns it right now in respect to procedure and law.

If there are no further questions, I will now turn to the amici curiae so in respect of the discussions described and limited by the Prosecutor's appeal you can put forward your own arguments. Thank you very much.

MR. TAPUSKOVIC: [Interpretation] Your Honours, esteemed Judges of the Appeals Chamber, we agreed today as amicus curiae I will present our views regarding all of these issues that were raised here today. I will attempt to be direct, and I will attempt to adhere to the time allotted to us, given to us to express our position regarding all of these matters that need to be decided upon.

I have to begin from the same point that the Presiding Judge Jorda used as a starting point. I will also adhere to the same chronology, except this chronology, in our view, needs to be presented in a somewhat different manner.

What I would like to begin with is the following: On the 11th of December, as you know, the Trial Chamber made -- adopted a decision to join the Croatian and Bosnian indictments into one and decided to keep the separate -- to keep the Kosovo indictment separate. Two days later, a written decision was distributed, and all of us amici curiae were in full agreement and were unanimous supporting the reasons advanced by the Trial Chamber, the reasons why they believed that this could not constitute one ³⁵⁴ and the same transaction. So in that respect, we amici curiae were unanimous.

We do not have a binding obligation to be unanimous like the Prosecution has to be. We, all of us, can have our own opinions and can differ among us. However, in this case, we were unanimous. We believe that the Trial Chamber came forward with very convincing reasons why this could not be interpreted as the same transaction in accordance with the roles [as interpreted]. So this is the first thing I wanted to say.

And now, following the chronology, I will say the following: That on the 12th and 13th of December - I have to draw your attention to this - 25th Plenary Session of the Tribunal was held. And in accordance with Article 6, some rules of procedure were amended and some new ones were adopted. So two days after the Trial Chamber adopted the decision to sever these trials, Rule 116 bis was adopted concerning the expedited proceedings, and then the Prosecution filed their motion for leave to appeal in accordance with Rule 73[D]. On the 28th of December, 2001, these new Rules entered into force. So this means that they entered into force after the Prosecution submitted its motion for leave to appeal. As you know, on the 9th of January, 2002, we had a Pre-Trial Conference which was dedicated to all these matters. And on that same day, the three-member Trial Chamber granted leave to Prosecution to appeal based on Rule 73[D]. We were distributed this decision on the following day, on the 10th of January. We then received some further documents on the 16th of January, and then the hearing -- today's hearing was ³⁵⁵ scheduled.

So let us take a closer look at Rule 116. It discusses the expeditious -- expedited appeals procedure, and it concerns appeals under Rule 73, which means that it basically removes the Rules 109 to 114. In other words, this means that this appeal filed by the Prosecution which, in accordance with the old Rules had a very defined schedule, had very defined time frames, is now being treated as an expedited appeals procedure. And this all happened after the Trial Chamber decided that the trial should start on the 12th. So what am I trying to say here? First of all, we should ask ourselves whether we can apply to this case Rule -- the new amended Rule 116 which eliminates the regular appeals procedure and refers to the appeal by Prosecution which was filed in accordance with old Rule 73[D]. We, as amici curiae, believe that this is not tenable. This would be contrary to legal principles. And I'm not going to dwell on this any more. But this is just one aspect of this entire problem.

The other aspect is just as important. You had an opportunity to hear from Mr. Milosevic that it was not until yesterday that he was informed of this hearing and that he basically was unable to prepare for this hearing and was unable to answer your questions in an appropriate way. So he found out about this hearing yesterday. And as you are well aware of, Rule 6 specifies provisions regarding the amendment of the Rules. I think that the Tribunal followed this Rule. It amended Rule 116 and now the expedited proceedings are applied to all of these matters. However, we should not neglect the provisions of this rule under (D), ^{356 BLANK PAGE 357} which that (D) subsection says the following, that: "The amendments will enter into force seven days after the adoption of the document, however, will not be applied in a way that would jeopardise the rights of the accused."

In this situation, we really have to wonder whether we will come to a situation where we will not be able to have a fair trial if the expedited proceedings are applied in this case. When they are applied with respect to an issue that is -- that finds itself for the first time before this Tribunal. We are now talking about the issue of joinder of three indictments.

JUDGE JORDA: [Interpretation] You are an amicus curiae, Mr. Tapuskovic. Please help the Court. I don't know what you plead to. Are you pleading to the procedural error by an Appeals Chamber? Please assist the Court, tell us what you plead about. Are you pleading on behalf of the rights of the accused, or are you pleading that there was an error? The changes to 116 bis were not in substance but formal ones. Please specify what you are pleading to in order to assist the Court. This is the reason why you are being here.

MR. TAPUSKOVIC: [Interpretation] Yes, that is true. We are amici curiae, but the way I see the role of amici curiae, and the way it has been described to us so far, our role is to raise any issue that deserves the attention of the Tribunal in order to ensure the fair trial. So we are here to ensure the fair trial. Judge Robinson warned us many times that we need to raise all issues that have a bearing on the fairness of the trial. ³⁵⁸ So I believe that it is my duty to draw your attention to this, that we have to have in mind that we cannot apply this rule concerning the expedited proceedings in this case because the importance -- because of the importance of this issue.

JUDGE JORDA: [Interpretation] Sorry for interrupting. We are sad that you didn't produce written submissions. You had ten days in order to do so, to file written submissions. We can admit you intervening today on the merits of the issue put to the Chamber and to the Court, but just wanted to notice this.

MR. TAPUSKOVIC: [Interpretation] Mr. President, all I can say is this can be raised at any minute. It is true that we did not submit written motions. I didn't want to bring to your attention the difficulties in our daily work. We receive loads of materials on a daily basis, and I have to raise this with the Registry because we have not received all the materials pertaining to the trial that is to begin on the 12th of February. On the 25th of January, we were finally distributed all the materials concerning this trial, but physically we had no time to review this. It was impossible for us to write a written motion under the circumstances. However, I am raising this issue now. I am putting this question to you, and I believe that a question of such a delicate nature as this one, as the one we have heard today, should take into account the fairness, and we should not apply expedited proceedings. We should apply the old Rule, especially in view of the fact that the Prosecution filed its motion while the old Rules were still in force. And it is up to you to decide on this. However, I just want to ³⁵⁹ bring to your attention this very delicate issue. I want to put it on your table, if I can say so, to have you decide on this. But at any rate, I believe this is going faster than it should, if we want to decide properly an issue of this importance.

JUDGE JORDA: [Interpretation] Excuse me, this is the very first time this Tribunal has been reproached with being too fast. I want the Registry to take note of this. Thank you. Please go to the core of the matter. You have 15 minutes in order to develop your argument. So you mentioned the procedural aspect, which we take note of. But please move on now to the other points you wanted to air. Thank you.

MR. TAPUSKOVIC: [Interpretation] It is not my intention, and it is not my desire, to dwell on issues that you described, Mr. President. These are procedural issues, and let me just repeat once again that the expedited proceedings should not be applied in this case. And now let me turn my attention to other matters which concern whether -- which concern the issue of joinder. So let me commence from the points that were listed in the motion to approve the joinder. So the important points from that motion are as follows: Paragraph 13 says that in this case a number of acts were carried out as the same transaction in an aim of Milosevic to create the Greater Serbia and to apply this to Bosnia-Herzegovina and to Kosovo. This view that all of these three indictments need to be joined, as Mr. Nice said, under the umbrella of the idea of Greater Serbia do not stem from anything that we can find in those documents. How can Greater Serbia be created in an area that is an integral part of Serbia until this very day? This cannot be justified ³⁶⁰ with legal facts, with actual facts or historical facts either. They write here that Serbs believe Kosovo to be their sacred soil. That is not true. That is wrong formulation. There are historical proofs that can confirm in the 13th, 14th, and 15th century, Serbia was created in that area. So there are no doubts regarding that. We can't question whether Serbia during that time was created in that area. There are historical documents that confirm this.

Mr. Milosevic mentioned something that there was only one period in time when Serbia did not have Kosovo. That was during the Mussolini reign when Kosovo was next to Albania. And another situation that is similar to this is the situation when Bosnia was annexed to Croatia, which also took place during Second World War.

Kosovo, throughout the centuries, was an integral part of Serbia and you can verify this in the Berlin Congress, London Conference, and many other -- many other situations. So Kosovo is an integral part of Serbia. And how can we now say that Serbia tried to establish control over its own territory? This is something that we find in Prosecution's motion to allow them to join the indictments.

And as far as their motion to grant them leave for an interlocutory appeal is concerned, let me quote a few things from that document and then I will finish with my presentation. They're claiming that the Trial Chamber erroneously made its decision and that Croatia and Bosnia were independent states at the time when the relevant acts were committed whereas Kosovo was and is part of the Federal Republic of Yugoslavia. So this is the decisive factor, and ³⁶¹ it was well analysed by the Trial Chamber.

And this is how Prosecution rebuts their position: The Prosecution says the following: The events in Kosovo were a crime hanging in the air waiting to happen; however, it was delayed due to international pressure, and then they go on to say that it was to be expected that this would happen.

So I would like to draw your attention that in the Kosovo indictment, paragraph 93 says the following: The Prosecution claims that in 1996, there was already Kosovo Liberation Army in existence. This group was in favour of the armed resistance and violent resistance to Serbian authorities. In 1996, they launched attacks primarily targeting Serbian police forces.

So now I have to put the following question concerning my role, because after that, the Prosecution goes on to say as follows: that the achievement of long-ranging plans concerning control of the territory need a lot of time to implement.

So can we really believe this to be true? How can you have an aim to control your own territory? You can have an aim to control somebody else's territory. Does the Prosecution mean to imply that Serbia wanted to occupy its own territory? Nobody could predict that there would be an armed rebellion, so they couldn't have planned to put their own territory under their own control.

So the Prosecution's view is full of contradictions, and I am just not clear. How can we put somebody on trial for attempting to save his own country's territory? ³⁶² Another matter that is perhaps even more delicate is as follows: Paragraph 8 says the following: "... regardless of the fact whether the states have recently proclaimed independence or are simply announcing their intention to do so," which means that they're saying it doesn't matter whether somebody in fact already proclaimed that they are an independent country, what is important is that they have the intention to do so. So we find this position to be untenable. And I think that the decision that you are about to make concerning all of these issues have to do not only with this accused but with international law overall, and I think that the interest of the international law and the interests of fair trial are more important than any interests of the Prosecution. The Tribunal should bear this in mind. And I don't want to go into the issues concerning Nuremberg because this cannot be compared to Nuremberg. In Nuremberg, we dealt with occupation of somebody else's territories, whereas in our area, we had forever some separatist tendencies and so on.

I'm not about to belabour this point. I'm sure that it will be discussed in greater detail during the trial. But please bear in mind that even Mr. Milosevic said he saw no relation between all of these matters.

So I believe it is illogical and it is absurd to join these trials regardless of the fact whether it will be important or it will benefit this side or that side. I think it will be to the detriment of international law overall. Thank you.

JUDGE JORDA: [Interpretation] Thank you, Mr. Tapuskovic. ³⁶³ Mr. Kay, I understand that the amici curiae were independent, one from the other. Do you have anything you would like to add to what was already stated by your colleague?

MR. KAY: No. We apologise for not having a written brief put in on the procedural issue, but the amici have been under great pressure of resources of time in the preparation of these matters, and we received notification on Friday night of this hearing today, and there simply hasn't been time for us to put in a written brief to the Court.

JUDGE JORDA: [Interpretation] Thank you for your courtesy, Mr. Kay. Of course we accept your apologies.

Let me turn to my colleagues. Are there any questions to be put to the amici curiae? Judge Meron? Judge Meron.

JUDGE MERON: This Tribunal is -- amici, I know, has always considered rights of the accused, the human rights of the accused, due process rights of the accused as a fundamental principle guiding our work. This is, of course, as true of Mr. Milosevic, the present accused, as it is of any accused before this Tribunal, whatever his or her rank may be. In its a decision, as you remember, the Trial Chamber concluded that the accused would be prejudiced by a single trial incorporating the three indictments.

This was the view, in any event, expressed by Mr. Kay and Mr. -- sorry. What I would like to say is that this did not appear to be the position of Mr. Kay and of Mr. Wladimiroff during those hearings. And you did allude to the psychological pressures of preparing for separate lengthy trials and indicated, Mr. Kay and Mr. Wladimiroff, that a single ³⁶⁴ trial might be in the accused's best interest.

So my first question is: Is this still your position? Could you please elaborate, because this would be extremely helpful for the Appeals Chamber. Where do we stand on that?

MR. TAPUSKOVIC: [Interpretation] I will gladly answer Your Honour. I respect the position taken by Mr. Kay and Mr. Wladimiroff regarding this. They truly analysed this deeply, and I think that they were right from the humane point of view, because they wanted to spare somebody the extra proceedings. And as you can fully well see, Mr. Milosevic enjoys good physical and mental health, so I don't see any problems in that regard.

What I spoke about goes to the very essence of the entire problem. We are now dealing with the same transactions, scheme, strategy, or plan concerning this, concerning Greater Serbia. So the problem is: Is it possible that something that has been an integral part of one's state can be the subject of this scheme? That is one issue, as I see it. And the other issue, and I will give an opportunity to Mr. Kay to state his position, but the other issue is that we are going backwards, as Mr. Nice put it. How can we begin with the last event? And at the same time, we have had the material supporting the first and the second indictment for a full ten years without anybody paying any attention to this. And these indictments were brought immediately after NATO bombing started.

So we have to prove that this existed prior to all these events. And I hope that we, as amici curiae, will be able to demonstrate that ³⁶⁵ there were things that happened much prior to 1987, when Mr. Milosevic was not in power at all. It is our duty to bring up all of these issues before you, and Mr. Kay will certainly express his opinion regarding this.

JUDGE JORDA: [Interpretation] What shall we do? The Presiding Judge decides who is going to speak, but Judge Meron had a question.

Judge Meron, how would you like to proceed?

JUDGE MERON: I have a follow-up question which may help our learned Mr. Kay here in answering the question which follows, if that's all right with you, Mr. President.

On the question of same transaction, I realise, of course, that the amici can take, may take, probably will take different positions on many issues, but it would really help us to have a further clarification from you, Mr. Kay. I'm now looking on this question of one transaction or not.

At the transcripts of the hearings before the Trial Chamber, and I read your statement: "A transaction can take ten years within the meaning of the Rules." And then you also said with regard to alleged commission of offences that where a nexus is provided within the separate areas of the former Yugoslavia, et cetera, there is some kind of a same transaction.

So in light of the somewhat different emphasis suggested today by your learned colleague, we would appreciate some clarification on that.

MR. KAY: Thank you, sir. I am very grateful to Your Honour. ³⁶⁶ When we addressed the Trial Chamber, we addressed the Trial Chamber on the basis of what we thought was a humane point of view. Wladimiroff and I had considered the estimates of trial which had been given, which varied from three years to five years originally and then gradually coming down. But we were alarmed at the prospect of any individual having to face such an ordeal, and that became the guiding point of view. I will be frank in that the Trial Chamber put us on the spot in coming to a definite point of view and sought guidance, and I can quite understand why. And one of the arguments advanced by us was that we felt the Prosecution had taken the wrong argument in the first place in their applications for joinder. And Judge Robinson replied, What arguments are we supposed to take? Are we supposed to take arguments they haven't taken we think they should have taken or the arguments they present? And I think we are bound by the arguments they present. In their presentation to the Trial Chamber and this Chamber, they have concentrated on the joinder of the indictments rather than looking at the specific charges. Rule 49 deals with crimes, doesn't deal with the word "indictment." And the factor that I wanted to point out to the Court, as well as mentioned in our written brief for those proceedings, was that in this particular case, if the Prosecution had chosen an argument whereby they were joining count 5 of one indictment to count 4 of another indictment to count 3 of another indictment, one would see the phrase "modus operandi" by Mr. Nice this morning in a slightly different context. In the context of the argument I was advancing, it was in relation to specific crimes. ^{367 BLANK PAGE 368} The Rules are supposed to be followed in many respects and their wording considered very carefully. And I believe that the choice of the word "crimes" in the first place was because the Trial Chamber was very much concerned to have transactions where modus operandi were of a continuum, if you like. There may be a break, there may be passage of time intervening, but they were part of a strategy that was used in relation to each particular crime. Then you may have a joinder. The argument that was presented was on the globality of all three indictments, and into that argument crept this phrase "Greater Serbia plan" to which the Yugoslavs particularly take exception to, as this Court will know from having read presumably many texts on the subject and heard argument within this building, is something that may not have been the best point for the Prosecution.

So in relation to that particular feature of their argument, the amici, through Mr. Tapuskovic primarily, who identified this factor, and subsequently us having considered the matter, were able to take on board the fact that that particular argument by the Prosecution should not be the basis of joinder, that the Greater Serbia plan was a contentious matter. The argument chosen was not crime-based, it was indictment-based, so it's wrapping up, if you like, in a global form without being specific the particular crimes alleged against the accused. And therein lies the difficulty.

When one considers the order that was actually made by the Trial Chamber, I won't say it was a form of compromise, but it must be noted by the Appeals Chamber that the Court ordered that the Kosovo trial would go ³⁶⁹ first, immediately followed by Bosnia and Croatia, thereby preventing a judgment taking place in Kosovo which would enable an application to say, well, having condemned this accused, if there was a guilty verdict in relation to the first indictment and then going on to other trials may be considered to be an unfair trial. But the Court was giving a judgment that enabled them to be able to review all three indictments and give a judgment of all three at the end, which is really what the Prosecution is saying as a bottom case, as a last resort, would be something that they would be prepared to accept, although they see the basis of a sequence of trials being under the cloak of joinder rather than the pragmatic view the Trial Chamber took.

Another of our arguments which we left very much with the Judges and did feature in their judgment was the unmanageablity of the case, whether the Judges felt that handling all those three issues, three indictments, that they were given birth to individually, they were considered separately, dealing with all those three at the same time, it was a matter, as we saw it, for the Judges to decide whether what had been presented to them by the Office of the Prosecutor in their conduct of the matter, whether that was manageable in the form that was being presented before the Court. And we said that was a matter for the Judges themselves, but was an issue that any Trial Chamber was able to take into consideration, considering the rights of the Prosecutor, the rights of the accused, and indeed, dare I say, their own human rights in dealing with such complex matter and the amount of work involved. I hope that clarifies Your Honours' questions on the position of ³⁷⁰ the amici.

JUDGE MERON: Thank you so much, Mr. Kay. If the joinder were based on crimes rather than indictments, what would have been your position?

MR. KAY: If you link individual crimes together, being deportations, being killings, being whatever, our view is that if that is a modus operandi, that can be, within these rules, Rule 49, the same transaction. I say that now without that argument having been presented for us to consider. It was our approach, without having heard the other side, and if you would like to consider looking for flaws in our own argument as advanced by an opponent, but that would be something that we would say holds true throughout many legal systems, that a temporal feature based upon modus operandi is not of as significant a matter as it might be.

JUDGE MERON: Thank you.

JUDGE JORDA: [Interpretation] Judge Hunt.

JUDGE HUNT: Mr. Kay, as I understood your colleague's presentation, he said that you should not base it upon the Greater Serbia argument because it was not a true fact. Now, surely we're not going to determine that issue at this stage. The allegation -- let's assume the allegation is sufficiently made in the indictments that this was all part of a strategy to make Serbia pure. We don't have to determine whether that's true in order to determine whether it's convenient or proper or mandatory that they all be tried together. So I'm a little puzzled of what appears to be your acceptance of your colleague's argument: Because ³⁷¹ there was no Greater Serbian plan, there should not be a joinder.

MR. KAY: I accept Your Honour's observation. I come from a school of legal training where we take the personality out of the arguments as much as possible, and that's how I present matters, I hope. The issue of Greater Serbia and the plan was raised by the Trial Chamber because it was fundamental in the Prosecution's argument, but it was pointed out - and this might be going to the bottom of this issue for Your Honours' consideration - it wasn't a feature of the pre-trial brief of the Prosecutor in relation to the Kosovo indictment. Not only did it come first as the indictment many years after the events within Bosnia and Croatia, as they are essentially complained about, but it wasn't actually a feature of their own case in their preparation of the Kosovo case. So that was something that the Trial Chamber was able to consider as well and occupied some of our debate, as you'll see within the transcript.

JUDGE HUNT: Then the point you are making is that it was never really part of the prosecution case, which is what we have to determine here, rather than it just didn't exist in fact.

MR. KAY: Yes.

JUDGE HUNT: I may have misunderstood your colleague's argument. And the other point I wanted to ask you: He laid great emphasis upon the fact that the first submission he made was a unanimous one. Have you got anything to say about Rule 116 bis?

MR. KAY: Yes, I must say I'm provided with the Rules rather later than everyone else. But when they were pointed out to me -- in fact, ³⁷² yesterday when we went through this argument, it does seem that the procedure that has been adopted is not the procedure that, in fact, should be used. And what one can see is that the issuance of the Rules on the 28th of December, I believe it is, that the new version is a result of the Plenary Session, pre-dates the issue by the Prosecution of their appeal document. And Rule 6 clearly states that there is to be no backdating of amending Rules to pending cases. And that's the key.

JUDGE HUNT: But the problem that I see, if I may put this to you for your answer, Rule 116(B) existed previously, and it is of no substantial difference between the two versions as to whether or not the Prosecution could appeal.

MR. KAY: Under Rule -- they were using Rule 73 as their ground --

JUDGE HUNT: Right. But Rule 73 was altered by substituting a new (B) so that it's now (D) that they proceed under. But Rule 116 bis existed previously before their appeal in the same form that it exists now. It was a purely formal amendment to it, to take into account the different way in which Rule 73 is now set out. And I frankly don't understand what the point is. Are you saying the Prosecution had no right of appeal or no right to a speedy hearing of the appeal?

MR. KAY: No right to the speedy hearing of the appeal, not no right to the appeal. That's the issue as one takes it.

JUDGE HUNT: And you see some distinction between the previous form of Rule 116 bis and its present form?

MR. KAY: Yes.

JUDGE HUNT: But what is it, the substance of it? ³⁷³

MR. KAY: If we go through the history of this matter, this wasn't an appeal under Rule 72 as a preliminary motion. It was a Rule 73.

JUDGE HUNT: And under the previous 116(B), there was a right for the Appeals Chamber to say, "This will be a speedy appeal." And that's exactly the same situation as the present one.

MR. KAY: If we go to new Rule 116 -- shall I let Mr. Tapuskovic deal with this? It was essentially his point.

JUDGE HUNT: I rather suspected it was.

MR. KAY: It seemed clear to me at the time. But I wasn't concentrating on this matter. Frank to the Court: Until I came in yesterday, I didn't know what the appeal was about or that there was this point. So I'll be frank about that.

JUDGE HUNT: I listened very carefully to your colleague's arguments, and if Mr. Tapuskovic can put me right I'd be very glad, but he didn't persuade me previously that there was a difference between the two.

MR. KAY: I wrote, "Do some more," on my piece of paper here. It may be -- maybe if it's, "Do some more," we might be able to follow it.

JUDGE HUNT: Well, it's a matter for you.

JUDGE JORDA: [Interpretation] Mr. Tapuskovic, please continue.

MR. TAPUSKOVIC: [Interpretation] Thank you, Your Honours. I will try to be more clear.

As you can see, Rule 116 provided for expedited appeals procedure for an appeal under Rule 73(B). It did not provide for expedited appeal procedure under Rule 73(D). So 73(B) sets forth that a decision could be made based on the transcript of the Trial Chamber proceedings and based on ³⁷⁴ the motions that were submitted. And now the validity of 70 -- 116 bis now is applied to 106 -- to 73(D), which is on what the Prosecution now bases its appeal.

I think that the Trial Chamber should have been -- the Appeals Chamber should have been informed of all the matters that the Trial Chamber was informed of in order to make a valid decision. Prior to the Plenary Session and prior to December 28th when this entered into force, there was no expedited procedure for 73(D). There was just a regular appeals procedure, and that was the only way to deal with such an appeal. And perhaps this would have allowed us time to write a motion of some 30 pages or so.

JUDGE JORDA: [Interpretation] Very well. Thank you, Mr. Tapuskovic.

Judge Hunt, do you have a further question? No. It seems to me that the last version of 116(B) includes all of the paragraphs under 73. Well, we'll look further at that question. We're almost at the end of our hearing, and since the accused, with the right that was his, did speak, it is now for the Prosecutor - I am saying this for the public gallery - since both parties are entitled to be heard, we can hear the final reply of the Prosecution, and I give the floor to Mr. Nice.

MR. NICE: Your Honours, I shall try and be very brief, dealing with things, where I can, by one-sentence headline. The procedural issue is in any event capable of being covered by Rule 127. Taking the matters in reverse order, my learned friend Mr. Kay's ³⁷⁵ observation about the interpretation of the Trial Chamber's ruling being that they would hear Kosovo and, without giving judgement, move on immediately in the same composition to hear the other case for whatever period of time that would last before announcing their decision, is not expressed in the Trial Chamber's decision. It might be thought to be a very odd conclusion for a man to be waiting whatever period of time the Bosnia/Croatia trial might last to know what view has been taken of his guilt or innocence in respect of a concluded trial might be thought to be quite unfair.

But the fact of the two trials being said to be immediately consecutive one to another, something understood by both of us, I think Mr. Kay and myself, points to the reason for a joint trial and, if I may say so, the difficulty points towards the difficulty of understanding why it should be otherwise, for by having trials one following on the other with an identically composed Chamber, would require that Chamber artificially and unnecessarily to exclude the evidence it's heard in the first trial from the second. Although of course Judges can do that, there seems no reason for it, and the real -- one of the strongest reasons for joinder is to avoid that sort of irrationality and to have a comprehensive trial by a single Trial Chamber.

Joinder, perhaps I should have drawn to your attention and do so now but without inviting you to look at the Rules again, Rules 48, 49, and 82 deal, of course, with -- deal with trials of individuals and Rule 82 deals with severance of one accused from another. There is no Rule expressly covering joinder of indictments and so on. There seems to be ³⁷⁶ almost an assumption in the Rules that an accused would only be tried once. We don't rely on that particularly as an assumption but that's the state of the Rules that exist.

But dealing with my learned friend Mr. Kay's point, joinder of indictments serves to achieve joinder of offences, and his concession about the realities of modus operandi amounts to a consensus really that joinder would be justified, because he makes the point that there is far less temporal significance to be attached to the joinder of offences than could be properly linked by modus operandi.

I don't rehearse our arguments about why didn't I adopt his argument, I simply say that if the Court is persuaded that his arguments are right, it is a route to joinder in the same way as were the interpretation of "scheme" to lend itself to a parallel being a parallel with modus operandi; the same considerations would apply. Coming back to the observations of Mr. Tapuskovic, just a couple of points. First, although Mr. Tapuskovic identifies prejudice and tells us that it's their duty to look into earlier historical matters on behalf of the accused, I'm not sure that that is their role necessarily. That's a matter between them and the Chamber. What one can be sure of is that this accused, if he's identified prejudice in a joint trial, might have said so. He has never -- conspicuously has never done so. I decline, for obvious reasons, to deal with many issues of fact, but can I make this observation in relation to what Mr. Tapuskovic says about the significance of the arrival on the scene of the KLA, insurgents, freedom fighters, or whatever they may be, terrorists. They operated in ³⁷⁷ that territory in exactly the same conceptual way as those pressing for independence operated in the other territories. They may have been the trigger or a trigger that led to the actions of a criminal nature engaged in by this accused, and that simply serves to remind me to emphasise that the plan -- we've had a lot of talk of Greater Serbia, I'll say a word or so about that, but the plan is the plan how you do something and that is what is constant, as my learned friend Mr. Kay acknowledges. That is what's constant, as we have argued throughout.

Greater Serbia features, of course, in the writing, and it features, but only to a very limited extent, in the pleadings. It features, for example, in one of the indictments in the mouth of -- is it Seselj's -- his rabble rousing words. It features in another of the indictments as being something that was being advocated at the same time as the accused was doing, that which he is said to have done; and it features in the third indictment as being a way of looking at things but always qualified in the way that I qualified it on the last occasion than this.

We say, as we have said from the beginning, that there was a common plan by this accused to retain or to gain territory for the purposes of exercising power via a central Serbian state. Differently expressed on different occasions but to that effect. Can I come back to the observations of the accused himself and make this general point? Your Honours' Chamber have taken the opportunity of listening to the accused and therefore you are now in a slightly different position from the Trial Chamber which took a different course. ^{378 BLANK PAGE 379} So whereas I said earlier in dealing with questions of discretion that of course you're in a position to exercise the discretion, to making your own decisions -- it's not a question of making a decision on facts. It's a question of making a decision of assertions at this stage. But nevertheless, you're plainly in a position to make those decisions, as we know from the Tadic appeal and Kupreskic appeal. But it happens in this case that you have more material than the Trial Chamber had, and you may conclude from hearing the accused at some length that although he declines to say whether he would prefer a single or a split trial, everything that he has said shows that he will link these events one to the other and will view them as an overall matter to be dealt with as one, and therefore it must be both to his convenience as well as to the judicial convenience of the Trial Chamber that this should be one trial. And so it happens in this particular case that you are better equipped than the Trial Chamber were to make the decision, and on that additional material we would invite you to say the balance unequivocally comes down in favour of hearing these arguments that the accused will develop and that span everything and lay blame for everything elsewhere far better that they should be here in a single trial and indeed almost impossible difficult to manage otherwise.

Also, and one other point of fact, and I only mention it because the accused did, there are going to be many linking factual matters, but one of them, for example, relates to the Krajina. He speaks of the Serbs who were expelled from the Krajina. The evidence may reveal that some of them were expelled without choice, without being able to stop off in ³⁸⁰ Serbia, directly to Kosovo, because at the time of their expulsion they were used to affect the demographic balance in Kosovo to the advantage of the Serbs because, of course, the plan was in mind, the problem was in mind that arose from the demographic imbalance in Kosovo that the accused perceived as existing until then. It's another little example of how everything here is integrated.

It's also quite clear from what the accused said that he will be seeking to draw comfort from the good things he did at some stages of this history. Well, of course, in theory he'll always be able to have the benefit of the good things that can be said about him in another part of the trial, but - and this is a reflection of my earlier argument - far better for him and for the Trial Chamber that all the favourable material should be available in all the trial, i.e., in the single trial. One other, I think, matter of fact and then I think I'm probably done apart from one thing that the Prosecutor wants me to say specifically and that I will, that the Chamber will have heard his expressions of belief as to who was killing who when the Albanians were dying and so on in 1998 and 1999. The Chamber will find in the record account of the number of Albanian Kosovars expelled in their hundreds of thousands and the numbers killed. And I simply make the obvious point that his assertions on -- in what regard are entirely rejected, but that will be the subject matter of the trial.

He says he wishes to be freed. Undoubtedly, resolution of this trial will be quicker if it's one than if it is two. The Prosecutor wants me to repeat, and I willing do so, that we ³⁸¹ are trial-ready. She's concerned that there have been mischievous reports. And I know that the Chamber won't either have read them or, if it has read them, pay any attention to them in the press and they are entirely without foundation. Our position is as stated. And so far as the -- that's, I think, all I need to say on that. Your Honours, I'm within the time limit.

JUDGE JORDA: [Interpretation] Judge Pocar.

JUDGE POCAR: I have a question. That's the following: Earlier this morning, in answering the question posed by the President, you said that, in filing the new indictments, you had two options, either prepare new indictments or filing requests for amending the initial indictment. Now, if I heard you correctly now, you are saying that article -- Rule 49 actually of the Rules does not speak of joinder of indictments, but of joinder of crimes. And you derive from that, if I heard you correctly, that the consequence is that only - when there is a single transaction, of course - only one indictment is allowed and only one trial. But would you agree that in this case, the correct procedure would be when an indictment already exists to add to it new crimes by way of request of amendment of the indictment and not filing new indictments and later ask for the joinder? I see a discrepancy in the position you took this morning, and that's if I heard you correctly.

MR. NICE: I hope there wasn't a discrepancy. And I'll deal with Your Honour's question in this way: The Rules are necessarily incomplete, not because they are bad but because they hadn't, at the time of their creation, thought of everything that would arise. Thus it is at 82, 48 ³⁸² and 49 cover offenders and crimes but don't specifically encompass the particular problem we are facing here.

That must mean that there is a residual discretion available to Trial Chambers to deal with matters that need to be dealt with. Here there were three indictments issued, and for good reason. And I can understand why it was done at the time. It was as a result of that that the approach was made to the Trial Chamber, and they dealt with it as if they had the power, which they indeed, in our respectful submission, did to deal with it on that basis.

Had it ever been challenged, they could deal it on that basis the matter could have been reformulated, either by way of seeking an amendment of one of the indictments or by issuing a new indictment and waiting to see what would be said then. But the same issues would have arisen. As I said this morning, for whatever reason, it's happy for the defendant - the accused, I beg his pardon - because in the event the burden has been on us to prove this or to satisfy you this is the right course of action, and he hasn't had to move for any form of severance, whether provided for under 82, which he probably isn't specifically, or not. Because of course 82, again, doesn't specifically envisage severage of counts within a single indictment; it envisages severance of one accused from another.

THE INTERPRETER: Would you slow down, please, Mr. Nice.

MR. NICE: Sorry to the interpreters.

JUDGE HUNT: Mr. Nice, surely there is an inherent power in any court to hear joint trials, in other words, a number of indictments, at the same time. And that surely is what you are after, isn't it? ³⁸³

MR. NICE: Certainly, Your Honour, yes.

JUDGE HUNT: A joint trial of the three indictments.

MR. NICE: Entirely, sir. It's a joint trial of the three indictments, and if the Trial Chamber decided, as they appear to have decided, that would best be dealt with administratively by having an indictment redrawn to encompass the allegations in whatever is joined.

JUDGE HUNT: That would be the ultimate way of dealing with it, I suppose, to have a completely new indictment with all three. But do you see any problem of having a joint trial of several indictments?

MR. NICE: I personally don't, no. And indeed, even if we didn't discuss this at the earlier hearing, it was one of the things that was in our mind to raise as a possibility. The really important issue here is that there is one Trial Chamber dealing with all the evidence and all the allegations. And administrative difficulties which may flow from that, we can deal with.

JUDGE JORDA: [Interpretation] This would be quite a perilous enterprise because then we would again have another decision by a Trial Chamber and possibly another appeal. So let us try to remain within the remit of the present debate.

Well, failing other questions by my fellow colleagues, I want to thank you for the very good conduct of the proceedings. I want to thank the Office of the Prosecutor, the amici curiae, and the accused, the interpreters, of course. And we will issue a decision as soon as possible. The hearing stands adjourned.

--- Whereupon the Interlocutory Appeal Hearing ³⁸⁴ adjourned at 1.09 p.m.