²⁶⁹⁹

Wednesday, 10 April 2002

[Open session]

[The witness entered court]

[The accused entered court]

--- Upon commencing at 9.32 a.m.

JUDGE MAY: Yes, Mr. Milosevic.

WITNESS: ANDRAS RIEDLMAYER [Resumed] Cross-examined by Mr. Milosevic: [Continued]

Q. [Interpretation] Yesterday we were unable to get an answer to the question: Which is the oldest building of Albanian architecture in Kosovo and Metohija? Can you tell us, at least roughly, what dates the oldest monuments of Albanian architecture date back to?

A. I thought I tried to answer this question last time. The Islamic architecture, as I described, goes back to the fifteenth century. There is residential architecture which one could qualify as traditional Albanian architecture that's a couple of centuries younger. Other than that, there are archeological sites about which there is various scholarly theories. It was not the purpose of our research to look into the extended history of architectural heritage in Kosovo. Our primary goal was to assess its current state.

Q. Yes. The oldest site of the Ottoman period is the Imperial Mosque in Pristina, from the fifteenth century, is it not?

A. There's that one. There's also at least one mosque in Vucitrn which is roughly of the same era. There is an even earlier mosque which is in the vicinity of Mitrovica, near Trepce, which is now an ²⁷⁰⁰ archeological ruin.

What one calls Ottoman or Albanian is a matter of judgement, as we discussed yesterday. A lot of the village mosques display the signs of the local architecture in the same forms; others display forms brought from elsewhere. This is as true of mosques as it is of churches. Some of the early churches display signs of Byzantine architecture. Others are of a distinctive local style, more of a style of architecture; similarly with mosques.

Q. But I assume you're familiar with a fact that is well known in history, that on the basis of Turkish records, in Kosovo and Metohija, at the beginning of the sixteenth century, only 2 per cent of the population were Albanian.

JUDGE MAY: It seems to me we're getting a very long way from the subject matter of this case. Now, you can ask him about his report, and that's what he's here to give evidence about.

THE ACCUSED: [Interpretation] All this refers to the report, Mr. May.

MR. MILOSEVIC: [Interpretation]

Q. Are you familiar with this fact?

JUDGE MAY: No. You're not to ask about this. It's going too far back and it's not of assistance to the Court.

THE ACCUSED: [Interpretation] Very well. Let's move on, then.

MR. MILOSEVIC: [Interpretation]

Q. In your report, you mention damage to architectural monuments, and you mention 500 towers, or kulla, as symbols of Albanian culture and ²⁷⁰¹ ethnicity.

A. Yes.

Q. Do you know that most of those kullas were built by the Turkish occupiers during the Ottoman Empire and that during revolts by Serbs, Turkish feudal lords hid in them and sought shelter in them, so these are like the Norman castle in the territory of England?

A. That is not my understanding. The kullas, or tower houses, are particular to this part of the Balkans. They are most dense in the western part of Kosovo, which is known in Albanian as Dukagjinii plain and as Metohija in Serbian. There were also some in Northern Albania, in Western Macedonia, and parts of Montenegro and the Dalmatian Coast. Most date from the eighteenth and nineteenth century, and for a variety of reasons, especially in Kosovo, they had become synonymous with the local Albanian culture. They are occupied by members of extended families, often going back for generations in the same kulla or group of kullas. They are not commonly found in towns, which is where any Turkish population was concentrated, except for Pec, which has some urban kullas. That's all the background I think I need to give on kullas. As you know, in our study, we say that a very large number of these kullas seem to have been targeted for destruction during the recent conflict.

Q. Yes. But it means that you do not agree with this allegation, this statement that kullas are kind of military fortifications.

A. Not in any modern sense. They had small windows and on the ground floor they generally had storage space and, in the villages, even animals housed. Yes, they did serve a defensive purpose in traditional clan ²⁷⁰² disputes and such. Against modern weapons, they don't really offer much protection. No new kullas have been built since World War II, with one or two exceptions, perhaps. It's a traditional architectural form.

Q. Very well. If you do not know this, I wish to tell you that an Albanian historian, Mark Krasniqi, in a book he published in 1958 entitled "Kullas in Metohija," described kullas as military forts. That was his finding, a finding of an Albanian historian in a book he published in 1958.

JUDGE MAY: Do you know about what this historian said or not, Mr. Riedlmayer? If not, just say not.

THE WITNESS: I've heard of the historian. Mark Krasniqi is well-known in Kosovo. I think what he's underlining here is the purpose that I described earlier. These served as refuges during local feuds in traditional times. But their primary purpose is residential.

MR. MILOSEVIC: [Interpretation]

Q. And do you know when Turkey left the territory of Kosmat, when the Turkish occupation of Kosmat ended?

A. Ottoman --

JUDGE MAY: This isn't a history lesson. Yes. What's the relevance of this, please?

THE ACCUSED: [Interpretation] Because I am talking about Ottoman monuments of culture, and Mr. Riedlmayer is identifying them as Albanian monuments of culture.

JUDGE MAY: I don't think we're going to be assisted by this distinction. The witness dealt with it yesterday. Now, have you got any ²⁷⁰³ more questions about the report?

MR. MILOSEVIC: [Interpretation]

Q. Do you know that in the conflicts, Albanian terrorists used those kullas as firing positions for operations in 1998 and 1999?

A. I have no information on what happened in those specific places during the conflict. All I can record is what happened to the buildings. In a number of cases, however, we do have the statements of the owners of the kulla, who claim that they fled with their families to nearby mountainsides and watched as Serbian troops burned down their kullas.

Q. As far as their statements are concerned, that is common knowledge, but I assume it does make a difference how those kullas were destroyed, because you said you only established the damage. So it's important to know whether it was due to natural disasters or, in conflicts, if they were used as firing positions. So that part of the story does not appear to interest you. Am I understanding you correctly?

A. The damage we saw was inconsistent with natural disasters. In almost all cases, there was -- there were signs of fire. In some cases, there were signs of blast damage.

Q. Does that -- can one infer from that that they were damaged in the fighting that was going on?

A. That it happened at that time, definitely. Whether or not it was as a result of an exchange of fire, that I can draw no conclusions about.

Q. Very well. When you're talking about destroyed kullas, do you believe that all of them belong to Albanians or did some of them belong to Serbs? And they're also part of the architectural heritage of the Serbs ²⁷⁰⁴ then who lived in Kosovo.

A. A number of urban kullas in Pec had Serb owners. Those were the only kullas in Pec that we found undamaged. In Pec in particular, we found a number of kullas surrounded by modern buildings that were untouched while the kullas had been burned out.

So in short, the answer is yes, there were some kullas that were owned by Serbs.

Q. And when you say that the kullas that belonged to the Serbs were not damaged, for instance, I happen to have some examples here of a kulla such as the Kusko [phoen] or KOS kulla, Garica, Decani, which the Albanian terrorists razed to the ground and which belonged to Serb families. And they were also protected cultural heritage.

A. I can't dispute that. I was talking with reference to Pec before. In the case of Decani, virtually all of the Old Town was either damaged or destroyed. According to our sources, this happened mostly in 1998. The vast majority of the population, and therefore I assume the vast majority of the residents of the kullas, were Albanians.

Q. In your report, you say that the largest medieval Orthodox religious sites were carefully protected by KFOR. At the same time, you admit, as you yourself wrote, almost 80 churches and monasteries between June and September 1999 were destroyed.

A. Yes.

Q. Do you see a contradiction there? How do you explain the fact that you're claiming that they were well-protected while at the same time under the auspices of KFOR, only in the period from June to September, ²⁷⁰⁵ which is a three-month period, 80 churches were destroyed.

A. I don't see a contradiction. The major sites I'm talking about are the ones that are listed in all the guidebooks and which are very well known, such as the monuments in Prizren, in Pec, Gracanica, Decani. These had KFOR dispatched to them almost immediately to protect them. They also had some advice from UNESCO on this and were provided with a list of sites, I believe by UNESCO, in the early months of the post-war situation.

At the same time, the destruction that happened tended to happen in rural areas, very often in areas from which the Serb population had already fled, and KFOR, especially in the early months, tended to concentrate its forces in areas where there was still a minority population that was in need of protection.

The most important medieval monument that was destroyed was the church in Musutiste. It's quite remote from the main roads, and it was not well published in the scholarly and popular literature, and so it did not get sufficient protection, and it was blown up in the early weeks after the war.

Other than that, most of the other churches and monasteries that were attacked tended to be in very remote places. We urged UNMIK to increase protection even for sites which had been damaged in the hope that reconstruction would be possible if no further attacks occurred. We were concerned to document especially those sites about which documentation was not otherwise available, and so we concentrated our efforts on that. Given the remoteness of the sites, we ²⁷⁰⁶ took considerable risks at times, going into areas that had not been clearly demined and where there was a chance that we would encounter some danger.

Q. I understand what you are saying, but my question was: How is it possible that if KFOR wanted to preserve Serb religious sites and monuments of culture, that so many, and on such a large scale, were destroyed? So let me explain my question further.

JUDGE MAY: No. Mr. Milosevic, this witness can't answer for KFOR. That's a matter for KFOR. All he can describe is what happened or what he saw when he made his report. He can't answer for the actions of others, or lack of actions for others, as you allege.

THE ACCUSED: [Interpretation] Mr. May, Mr. Riedlmayer claims that these monuments of culture were carefully protected by KFOR in his report which he has submitted, so I'm asking him --

JUDGE MAY: Which passage are you referring to in the report?

THE ACCUSED: [Interpretation] On page 021001, he says that religious -- Orthodox religious monuments were carefully protected by KFOR. And as we have seen, in spite of that careful protection --

JUDGE MAY: Just a moment. Mr. Nice, can you find this for us, please?

MR. NICE: We're probably having the same numbering problem which Your Honour has. The page number given by the accused doesn't match the ones in the report.

JUDGE MAY: Mr. Milosevic, have you got a page number at the bottom, on the right, 1 to 20-odd? ²⁷⁰⁷

THE WITNESS: I have page 10 here.

JUDGE MAY: Page 10.

THE WITNESS: I think I know what he's referring to.

JUDGE MAY: Let me just find it.

THE WITNESS: It's the top paragraph, please.

JUDGE MAY: Yes. Well, you can explain that passage to us, Mr. Riedlmayer.

THE WITNESS: Okay. What I explain is that the majority of the damaged or destroyed buildings were village churches, many of them built during recent decades. About 15 of them date from medieval period. And then what I say is that the major medieval Orthodox shrines, however, had been under close guard by KFOR and have not been affected, and I've already named which ones I consider the major ones.

JUDGE MAY: Yes.

MR. MILOSEVIC: [Interpretation]

Q. And what do you believe to be the reason that Albanian terrorists blew up and razed to the ground churches that were damaged in the NATO airstrikes, without KFOR protecting them? Did it occur to you that the purpose may have been to destroy traces of vandalism committed by NATO during those airstrikes?

A. I believe we covered this already yesterday. We were talking about the churches near Urosevac, at Nerodimlje. We have no information that these churches had been damaged in NATO airstrikes. We do have information that they were attacked after the war by Albanians. Beyond that, I cannot speculate as to motives. The most I can do is what the ²⁷⁰⁸ rest of that paragraph says, namely, that in some areas, there was a real correspondence of destruction of Islamic monuments and then a tit-for-tat destruction of Serbian monuments in the same locality, and I list several of them. I could list others, like Suva Reka.

In the case of Urosevac, there was a cluster of these destructions that happened in areas where there were no corresponding Albanian religious sites that had been destroyed. I have no idea why this pattern occurred. There is also a similar pattern in the area around Klina, just east of Pec, where a number of churches, most of them modern but some like this, older, were targeted after the war. I assume that in each case it had to do with ensuring the departure of the affected population: the destruction of the mosques to make sure the Albanians wouldn't come back, and the destruction of the churches after the war to ensure that the Serbs wouldn't come back. This, unfortunately, has been a pattern in much of the Balkan conflicts.

Q. And do you know that more than 30 per cent of Christian monuments in the first category, which means from the fourteenth to the sixteenth century, were destroyed in the area of Metohija after the arrival of KFOR?

A. I don't understand the 30-per-cent figure. Are you saying that 70 per cent were destroyed before the arrival?

Q. No. I'm talking of the percentage share of the total number of first-class monuments in the area of Metohija, so 30 per cent of those monuments were destroyed after the arrival of KFOR. I'm not talking about the 70 per cent at all.

A. Okay. All we can do, as far as the figures go, is what I cite ²⁷⁰⁹ here, which is that approximately 15 of the churches that we have documentation for dated from the medieval period. Practically every church that dated from the medieval period was on the protected list. Since the protected list included more than 200 Orthodox monuments, that's not 30 per cent, but we don't have a category breakdown as to first, second, third.

Q. All right. Well, probably the figures don't tally, and there's quite a bit of difference, and I think that some objective, professional team would be able to establish them.

But do you happen to know - and I'm linking this to what you said when you said that everything was well protected - that the Albanian terrorists, on the 13th of June, towards evening, once again stormed the Devic monastery and fired, open fire, asked for money from the nuns and the monastery treasures, took away the material goods that they had, took tractors and petrol and all their other equipment, such as typewriters, their fax machine, and so on and so forth, and of course all the monastery treasures which they held? They kept the nuns locked up in a room. They beat the only clergyman, the only priest there. His name was Pops Rafim [phoen]. And that went on for 24 hours, without anybody intervening, despite the presence of KFOR. Can you qualify that as good protection for churches and monasteries by KFOR?

JUDGE MAY: Do you know anything about this?

THE WITNESS: Only what I read in news reports.

JUDGE MAY: Yes. Next question.

MR. MILOSEVIC: [Interpretation] ²⁷¹⁰

Q. One of the nuns even died as a result of that torture.

JUDGE MAY: He cannot help about this. Now, let's move on.

MR. MILOSEVIC: [Interpretation]

Q. And do you know that the Albanian terrorists, towards the middle of July, 1999, after the arrival of the German KFOR forces, demolished, pilfered, and mined the Monastery of the Trinity and the Holy Bogoradica [phoen] in Musutiste, once again a world-class, A1-category-listed site?

A. Musutiste is the site that I had just mentioned a few minutes ago. Yes, I'm aware of it. It was widely reported. There are many photographs. We also have video footage.

Q. And do you know that the Albanian terrorists, after the arrival of the German KFOR forces, mined and razed to the ground the St. George site in Suva Reka from the fourteenth century, once again a world-class site, category 1?

A. In the town of Suva Reka?

Q. No. No. It was Recani in the Suva Reka municipality actually. The place was called Recani by Suva Reka.

A. I believe that's in our database, yes.

Q. And do you know that on the territory of the Prizren municipality, also after the arrival of the German forces of KFOR, that they demolished, burnt, mined, and destroyed churches and monasteries of St. Mark and the Holy Virgin dated back to the fifteenth and sixteenth centuries, Sveti Ilija, Sveti Nikola, Sveta Petka, Sveti Jovan in Ljubiste, that is the sixteenth century, Sveti Vasilije The Great in Srbica, and St. Nicholas in the town of Prizren, dating back to the fourteenth century. Do you know ²⁷¹¹ about that? Have you taken note of all these things? And can we deduce from those incidents, because we're talking about the town itself here, that had KFOR undertaken anything to protect -- did KFOR undertake anything to protect these buildings and guard them?

A. The -- you have a long list of monuments. I assume most of them are not in the town of Prizren. The one that you mentioned, the St. Nicholas, I assume is the school chapel which we do have recorded, which had an explosive placed in it. However, other Serbian monuments in Prizren we found to be intact and under guard. So we have recorded all of the monuments you've listed in our database. And in Prizren, we personally visited each of these.

Q. And do you know that the Sveti Avrilo monastery in the Vitina municipality, dating back to the fourteenth century, also a world class category 1 site, after the arrival of the American soldiers, was set fire to and demolished and a fire was placed inside it, burnt from inside?

A. This is one of the sites we visited at considerable risk to ourselves. It was in October of 1999. It was damaged already. The church itself had had a fire set in it but was structurally not affected. The monastery konak, the residence, had been largely burnt out. Subsequent to our visit, according to the IMG report, which has a photograph, the church was blown up in December of 1999. I consider this to be a criminal act and I'm very sorry that it was not prevented. On our way out from that location, which is listed in our database under the place number Buzovik which is the closest village, we actually asked the KFOR post if a guard could not be sent up to the monastery to ²⁷¹² protect it. As far as I know, no action was taken. So in short, yes, we know about this site.

Q. Then you probably know about the localities and villages where the churches, monasteries, mosques were destroyed, and other cultural monuments and buildings of cultural heritage.

A. Yes, we hope so.

Q. Yes, but you began your presentation by showing a small church to show that it had not been destroyed and that all the talk about the destruction is a fabrication. But as we know, the assertions that have been made about the destruction of hundreds of churches is not something that has been thought up. Is that correct? They actually exist.

JUDGE MAY: What does the question mean?

THE ACCUSED: [Interpretation] The question means that great crimes were committed in -- not only over people but over cultural buildings and cultural heritage as well.

JUDGE MAY: Mr. Milosevic, have you got a question for the witness?

THE ACCUSED: [Interpretation] Of course I have, yes.

MR. MILOSEVIC: [Interpretation]

Q. Do you know that the Albanian terrorists, after the arrival of the French KFOR forces in mid-August 1999, demolished, burnt, and mined the church of St. George in Rudnik, which is Srbica, dating back to the sixteenth century?

A. I believe Rudnik is listed in our database. But I --

Q. Do you know that once again terrorists, after the arrival of the ²⁷¹³ Italian forces of KFOR in July 1999 demolished, burnt, and mined the church of the Virgin Mary in Dolac, St. Nikola in Kijev [as interpreted}, dating back to the fourteenth century, and once again the St. Nicholas church in Cabici, sixteenth century, near Klina? These are all world-site, category 1 monuments and sites.

A. I'm familiar with these sites. In the case of Dolac, we actually provided photos of the destruction to the Serbian Orthodox eparchy, which they display on their website.

Q. All this is well known and you have found it to be so in the manner in which I describe; is that right?

A. In the manner in which it's described in our report, yes.

Q. And do you know that the terrorists, after the arrival of the British units of KFOR in June 1999, demolished and on the 17th of July 1999 mined and destroyed the church in Slovenia, which is the Lipljan municipality? It is the St. Nicholas church dating back to the sixteenth century.

A. Yes. I believe the church of Slovenia was actually mined twice.

Q. Yes, once in June and the second time in July 1999. And do you know about the mining and destroying of the St. Nicholas church in Kijev [as interpreted], which is near Malisevo, also a world-class site, once again after the arrival of KFOR in the summer of 1999?

A. Yes. I believe the town's name is Kijevo, and yes, we have that recorded.

Q. And did you happen to notice, when you were visiting the area to establish the state of affairs, that the jeopardised zones, the threatened ²⁷¹⁴ zones around the Decani monastery and the Ljeviska Obogorodica [phoen] and Pecka Patriarsija, Patriarchate, was because, with the acquiescence of UNMIK and KFOR, their blessing, they now disrupt the whole area by allowing houses to be built and shops, and to allow the land to be used as a waste area for refuge -- refuse?

JUDGE MAY: We are dealing with destruction, not general town planning issues. Now, can we move on, please, Mr. Milosevic.

MR. MILOSEVIC: [Interpretation]

Q. And do you know that the Albanian terrorists, after KFOR's arrival, destroyed tens of thousands of icons and iconostases and church artefacts and sacred items, an enormous number of books and relics, and a lot of that is being sold today illegally on the art market, black market, throughout the world? Do you have knowledge of that?

A. I not only have knowledge of that, I actually wrote about it in an article I published in the summer of 2000, about the appearance of artefacts clearly looted from churches in Kosovo on the art market. There was a news report of somebody in Tesovaniki [phoen] who was caught with artefacts that clearly came from churches in Kosovo. This is an unfortunate fact that has happened in all of the wars in the Balkans, that, quite aside from any political motives, the biggest driving force is that of simple human greed.

Q. So looting, you say. On the 24th and 25th of March, you spent some time in Kosovska Mitrovica and on that occasion you went to the municipal library there.

A. That's correct. ²⁷¹⁵

Q. By the by, people, the Serbs lived behind barbed wire in that part of the world, but that is not the subject of your study. But could you explain this: Why on the 24th of March suddenly you interrupted a meeting of the Serb and Albanian librarians in Kosovska Mitrovica?

A. I did not interrupt the meeting. I was present at the meeting. The meeting was interrupted because a crowd was gathering outside the library and the two Serbian librarians feared for their safety, and so they were taken back to the north side. The next day, I visited them on the north side and then carried out the assessment at the library on the south side.

Q. Perhaps I wasn't precise enough. I didn't say that -- and mean that you personally interrupted the meeting. What I meant was that you, in the sense of those taking part in the meeting, that the meeting was interrupted because of the violence that was organised in front of the library. That's what I meant.

A. That is precisely what happened.

Q. And do you know whether there is any institution or professional one of the -- of professionals of Serb ethnicity who stayed on working in Kosovo in that region, except Kosovska Mitrovica, dealing in the subject of the protection and safeguarding of cultural heritage? Is there anybody still there?

A. Cultural heritage I have no knowledge of any that stayed. I do know that in Gnjilane municipality there's some cooperation with librarians, Serbian librarians in the enclaves, and the director in Gnjilane, who is an Albanian. As far as the Institute for the Protection ²⁷¹⁶ of Monuments, the Serbian staff left in June of 1999 and took most of the records of the Institute for the Protection of Monuments with them to Serbia.

Q. My question was: Do you know of a single Serb working there, except in Kosovska Mitrovica? And as I can see, there aren't any there. Now, do you know whether that in the centre of Pristina, immediately after the arrival of --

JUDGE MAY: [Previous translation continues]... that or not, Mr. Riedlmayer?

THE WITNESS: Well, I can briefly say yes, I do know that the Serbian Orthodox Church has been trying to organise the salvage of artefacts that were rescued from burned-out churches, and I had some correspondence with Father Petar Ulemek of the Pec Patriarchate on this subject, but that is the only thing I know about this. It's really outside of the subject of our study.

MR. MILOSEVIC: [Interpretation]

Q. I asked about a professional working there, not any member of the clergy. The clergy carry on their own business.

Now, do you know that in the centre of Pristina, immediately after the arrival of KFOR, the Albanian terrorists destroyed the monument to Petar Petrovic Njegos and Vuk Karadzic and on that spot they erected a monument to the well-known terrorist and killer Jasari?

A. The erection of monuments is not something that we looked into.

JUDGE MAY: Yes.

MR. MILOSEVIC: [Interpretation] ²⁷¹⁷

Q. And do you know that after the arrival of the German contingent of KFOR in Prizren, the monument to Tsar Dusan, a medieval ruler, was destroyed, who had his seat --

JUDGE MAY: He didn't look into the monuments. Do you know anything about this particular monument?

THE WITNESS: All I know is what I read on the Serbian Orthodox Church's website, which has a little picture of it, but as I said, we did not, as a matter of principle, look at certain categories of things such as archeological sites, public statues, and so forth.

MR. MILOSEVIC: [Interpretation]

Q. All right. Now, in those localities, as cultural heritage was protected, does that include the old part of Prizren, Potkaljaj, which was inhabited by the Serbs, and after KFOR's arrival, this was destroyed by the Albanian terrorists in Prizren?

A. Yes. We visited Prizren and went up to that neighbourhood which I believe is the one you're talking of. It's up the hill from the Catholic cathedral, and we observed some old houses that had been burned out and we were told that they were houses of Serbs. We did record that in our database.

Q. I had several questions regarding monuments, but I understand that that was not in your field of expertise, so let me ask you this: Do you know about an article by Robert Friske [phoen] published in the London Independent on 20th of November, 1999 which speaks of the destruction of Serb churches by the Albanian terrorists, along with the support of KFOR? Have you read or heard of that article? It was published in The ²⁷¹⁸ Independent and it speaks about the destruction of Serbian churches along with KFOR support.

A. We tried to follow the media. I vaguely recall reading the Friske article -- the Fisk [phoen] article. It mostly seemed to speak of items that we had covered in our survey.

Q. All these findings of yours relate to the consequences of war, as far as I'm able to follow you.

A. Yes. Not natural catastrophe.

Q. And do you understand that your previous government, in that war against Yugoslavia, introduced the largest war machinery of 19 NATO-pact countries?

JUDGE MAY: This is not for the witness. We have been over it yesterday. It's nothing to do with the witness.

Now, Mr. Milosevic, even if you're right, supposing you're right for a moment, for the sake of the argument, and there was considerable destruction of Serb churches, Serbian Orthodox churches, and the witness accepts that there has been, what the indictment charges is the destruction of various mosques and other such cultural monuments. Now, then, how does it assist for you to put a large number of allegations about other destruction? What this Tribunal is concerned with is what's in the indictment. What the witness has given evidence about is general destruction, and you've asked questions about it, but what you have to concentrate on is what's in the indictment. Those are the charges you've got to answer.

Now, have you got any more questions for this witness? ²⁷¹⁹

THE ACCUSED: [Interpretation] We're talking here, Mr. May, about the consequences of war and not about which side did what, but the consequences of war, because the consequences and the results of war are the damages that were done both on Serbian, Islamic, Catholic churches, monuments, and so on and so forth. And there was a war, and the war was caused by the NATO alliance and not Yugoslavia, because Yugoslavia did not attack itself, but NATO attacked Yugoslavia. And you're trying here to use fractions and parts of war and set them aside from the whole and then to accuse those whom you consider to be responsible for those fractions and parts. But when I speak about the lack of evidence, about the destruction, of damage done to Serbian churches, I want to show the biased nature of this study, because we're talking about the consequences of war here, which was provoked by the NATO-pact aggression. But yes, I do have one more question.

MR. MILOSEVIC: [Interpretation]

Q. You spoke about cooperation with Harvard, and I assume that you know what the press is writing, the Boston press, because Boston is the cultural headquarters of America. And let me quote just one paragraph from an article, which I suggest that all those present here read. It appeared in a Boston newspaper, and it says the following: [In English] "Surrounding the Milosevic trial is meant to distract us from the reality of our Balkans misadventure when we went to war not against --"

JUDGE MAY: No. This has nothing to do with the witness. Comments in a Boston newspaper have nothing to do with them. Now, have ^{2720 BLANK PAGE 2721} you any questions about his report and his evidence?

THE ACCUSED: [Interpretation] Of his evidence, yes. Mr. May, it does have to do with his testimony. And even now, when the press of America says: [In English] "... not against terrorism but in its behalf," [Interpretation] that we went to war --

JUDGE MAY: That has nothing to do with the evidence of this witness. Now, unless you have another question, relevant question, I'm going to stop this examination.

THE ACCUSED: [Interpretation] Mr. May, this does have something to do with the fact that Mr. Riedlmayer is testifying here. He is testifying here about something that is already common knowledge in America, that it was war in the name of terrorism and not against terrorism, which means that I'm asking Mr. Riedlmayer whether he understands that this false Tribunal here is a continuation and a consequence of that war.

JUDGE MAY: That's not a proper question. Right. That's the end of that. No, I'm not going to allow this to go on. Do the amici have any questions?

MR. TAPUSKOVIC: [Interpretation] Your Honours, thank you. In my attempt to clarify a few points, I shall make very minor digressions and shall focus exclusively on what is contained in Mr. Riedlmayer's report. So I should like to begin from paragraph 4.0, page 11, which contains data on the c.v.'s of the main researchers.

Questioned by Mr. Tapuskovic:

Q. [Interpretation] My question first, Mr. Riedlmayer, if I have read this correctly, and I think I have: In the second paragraph of the ²⁷²² biographies of the principal investigators, it says that you are a master of social sciences and a master of the natural sciences, that you have these master degrees. Is that correct?

A. Yes. I have an MA in Near Eastern Studies and MS in Library and Information Science.

Q. But neither you nor Mr. Herscher do not have a doctor's degree?

A. I'm a doctoral candidate. Mr. Herscher's Ph.D. is expected next month.

Q. But regardless of that, you certainly have very high education. But it is not in the area relevant to architecture, art, painting, but rather, social sciences.

A. That is not correct. I've worked for 17 years as an art documentation specialist. I have taken advanced courses in this. I've written articles on art documentation, as you will see in my c.v., and although my training at Princeton and at Chicago was as a cultural historian, certainly material culture and architecture were part of it.

Q. Thank you. It also says in your c.v. that you mainly did your research in Islamic architecture and that you are a recognised expert on the cultural heritage of the Ottoman era, Balkans.

A. That's correct.

Q. So you know very well - and that is why I'm asking you this - that prior to the Ottoman era, there was the Byzantine era and the time of Orthodox history, and then after the Ottoman period, there was another hundred years of history. So in addition to the Ottoman era, there was the Byzantine period, then the medieval Serbian state, and then after the ²⁷²³ Ottoman era comes another hundred years of history; is that correct?

A. That is correct, and although it's not stated in the short biography, I had a minor in Byzantine Studies when I took my undergraduate degree, and I've been studying the history of the Balkans, both pre- and post-Ottoman as well.

Q. Thank you. You explained to us yesterday that the idea occurred to you to study this problem, which is certainly worth attention of any human being. You decided yourself, you found sponsors, and you came to The Hague and offered your services. Did I understand you correctly?

A. That's correct.

MR. TAPUSKOVIC: [Interpretation] Your Honours, I would need to address you at this point in time and to make an objection, not a comment, regarding this. And the objection is that the prosecution, anywhere in the world, of course, if a crime is being investigated, looks for experts itself from various areas, designates them, and entrusts them with a particular task, and in this case - and I must make an objection to this procedure - somebody came here who had the funds secured, who had already done part of the job, and offered his own services. So I think that this is not in accord with certain basic principles that apply everywhere in the world, because the prosecution and the courts designate the experts themselves for this kind of work. I have no question regarding that. I just wish to make that remark.

JUDGE MAY: What difference does it make?

MR. TAPUSKOVIC: [Interpretation] The difference is that in this way, a complete impartiality would have been ensured, because otherwise it ²⁷²⁴ means that anyone who secures the funds can offer his services to an institution of this kind, and I think that in this case, the Prosecution should have selected among the numerous experts a particular one who would study this problem. That is my remark, and not a question. May I continue with my questions now?

JUDGE MAY: Just let me say this, since you've made what you call an objection: that we've heard the evidence. It will be for us to assess what weight to give this witness's evidence, but he's made his explanation as to how he came to draw up this report.

MR. TAPUSKOVIC: [Interpretation] That goes without saying, Your Honours, and I know that the Court is here to provide the answers to all the questions. I thought it was my duty to make this observation because I feel it needed to be made.

Q. My question has to do with the following: On the cover page of your report, it says: The damage done to sites in Kosovo. That is the first page of your report: "The destruction of cultural heritage in Kosovo," on the front page. And on the second page, it says: "The destruction of cultural heritage in Kosovo in 1998 and 1999," so it's slightly different. I understand that specific damage -- to assess specific damage, you have absolute qualifications required, but who determined the frameworks of your expertise? Did somebody give you an assignment to that effect?

A. No. As far as I can see, both the front page and the inner page talks about the framework 1998-1999. We determined that ourselves, given that the first allegations surface in late May of 1998 and continue ²⁷²⁵ through the summer of 1999. So we decided upon the temporal parameters ourselves, having to do with the fate of cultural heritage in a situation of armed conflict.

Q. So you yourself came to the conclusion that your educational background gives you the capability to study all this and research it?

A. Yes. I consider myself equipped, as does Mr. Herscher.

MR. TAPUSKOVIC: [Interpretation] May I be allowed to raise two issues? I will not enter into a discussion of matters outside the report but only things contained in the report. But precisely because the Prosecution, on page 1661 from the LiveNote, when the Prosecution asked a witness, the Prosecution asked a witness a question about a mosque destroyed in the seventh century -- no. A mosque from the seventh century apparently destroyed in a village. So please check the transcript, page 1661. The reference was to a seventh-century mosque.

Q. So my question to this witness is: Is he aware of any mosques existing in that area in the seventh century?

A. I think this must have been either a translation problem or something else, because "seventeenth" would make sense. "Seventh" makes no sense whatsoever.

Q. I agree with you. But as Mr. Slobodan Milosevic referred to this, allow me to ask you: When you were in the area, did you examine a church in Prizren, the church of the Holy Mother Ljevicka?

A. Yes.

Q. Do you know what fate befell it? Do you know what happened to it? ²⁷²⁶

A. When we were there, it was surrounded by razor wire and it had KFOR stationed around it. We observed some broken windowpanes, but otherwise the church was in good condition, as far as we could tell. We could not gain access to the interior.

Q. I asked you whether you know what happened to it. Do you know that it was the first mosque that the Albanians made in Kosovo out of a church, that originally it was a church turned into a mosque?

A. Yes. In fact, throughout its long history, it was a mosque far longer than it was a church. It was built as a church during the medieval Serbian kingdom. Upon the Ottoman conquest, as the principal church in Prizren, it was converted to a mosque. After the Balkan wars, when Serbia took Kosovo, it was reconverted into a church.

Q. Thank you. Mr. Riedlmayer, when I received your report again yesterday, I was afraid of making a mistake, so I looked through it very carefully, and I focused in particular on the photographs. And on all the photographs, you have exclusively photographs of damage to monuments of the Ottoman period. There is not a single photograph in this report of what happened to other cultural monuments. How is that possible?

A. The photographs that are appended here are photographs of items mentioned in the indictment. This is by no means representative of the entirety of our report. This is merely a sample that happens to correspond with the sites specifically mentioned in the amended indictment.

Q. So after all, in the Prosecution, they did tell you to focus only on the monuments that were monuments from the Ottoman period that were ²⁷²⁷ destroyed; is that correct?

A. That is not correct. Our report, as submitted, ends before the pictures. The pictures were added as an aid to the Court just in the -- in the run-up to the trial here.

Q. But you went there --

A. As I --

Q. Yes, I understand that, but you said that you went there in the autumn of 1999 to establish which cultural monuments - Islamic, Orthodox, Catholic - were destroyed. Why, then, did you not include here, for instance ...

MR. TAPUSKOVIC: [Interpretation] On page 19, Your Honours, for instance, paragraph A2.4.

Q. It says here that as a source, you used the book "Crucified Kosovo." Did you have this booklet?

A. No. Actually, when we started, most of the contents of "Crucified Kosovo" was on a website set up by the Decani monastery. Subsequently, we exchanged photographs with Father Sava, and "Crucified Kosovo" appeared in an enlarged edition about a year later.

Q. I'm just asking you if you had all those photographs available from which it can be seen where which KFOR force was stationed. Why didn't you include some of those photographs in your report? Because these too are cultural monuments and you went there to study all cultural monuments.

A. [Previous translation continues]... in our database.

JUDGE MAY: Yes. ²⁷²⁸

MR. TAPUSKOVIC: [Interpretation]

Q. That is not my question.

MS. ROMANO: Your Honour, the entire report of the witness, with the 500 pictures and the entirety of the survey, is on the CD-ROM that was disclosed to the amici a long time ago. Those are --

JUDGE MAY: Yes. Mr. Tapuskovic, there is no mystery about this. The witness has told us that the photographs he has included yesterday were those which relate to the indictment. It sometimes is forgotten in this case that the case is being tried on an indictment. And those were the photographs which were selected. There's no mystery to it.

MR. TAPUSKOVIC: [Interpretation] Your Honour -- Your Honours, rather, I understand what you're saying to me, and I quite agree with you, but the problem emerges from the actual finding and what the witness has said. He went there to survey all the damage and the destruction done to all heritage in Kosovo and Metohija. In this report, he refers to those things in writing without providing photographs. But I am satisfied with the answer. The important thing is that I drew attention to it. What I am interested in is the following:

Q. As the report says that about 80 Serbian churches were destroyed, and you say that you did have in mind the data contained in this book, here they refer to 107 churches. Why did you not accept this fact found in this document that you had access to? A hundred and seven churches. In your report you mention about 80.

A. We had two constraints, one of which was that our time frame ends with October of 1999, and the second one, that we did not include any ²⁷²⁹ documentation for which there were no photographs available. If you look at "Crucified Kosovo," you will see that a number of churches are mentioned by name but there is no photograph.

Q. Yes, but the figure is 107 churches, and data about them are given; location, under whose protection they are, when, what happened, and so on.

A. But we made it a principle not to include items in our database which did not have some photographic evidence. We -- this was merely a conservative way of approaching documentation. We did not believe allegations necessarily without some corroboration, either a second independent source or photographs, preferably both.

Q. Thank you. You said that you toured 144 sites. How many of these sites were linked to the cultural heritage of the Catholic and Orthodox people?

A. I don't have an exact count, but I think we did something around 50 of Christian sites.

Q. I should now like to refer to some of the assessments that you made in your report. In paragraph 1.2 on page 2, you said sometimes that political criteria were important when something was decided to be a cultural heritage site, but here you use a different expression. You mentioned ideological considerations with respect to cultural monuments. Can ideological considerations be taken into account at all with respect to cultural monuments?

A. First of all, I consider in this sense political and ideological to be related if not synonymous. Secondly, what is and what is not ²⁷³⁰ considered an important cultural monument is in all cases a value judgement. The value judgements can have a variety of criteria. What I'm saying is that, from the statistical breakdown, it seemed quite evident that Serbian monuments were more heavily represented in the officially protected list than non-Serbian monuments in Kosovo. This had certain consequences with regard to the actual protection offered to them, which is not really relevant to our study. What is more relevant to our study is the fact that if we had concentrated exclusively on the officially listed monuments, we would have missed out on a large number of unlisted monuments that are historically or culturally important.

Q. I understand that and there is some logic to that, but if they didn't have this footnote -- you said that your explanations regarding ideological considerations has to be understood in the context of the footnote number 3, and in that footnote number 3, it says: [as read] "By the time of the outbreak of the 1998-1999 conflict, some 210 Serbian Orthodox monuments (churches, monasteries, cemeteries) in Kosovo had been granted listed status, including 40 churches built between the 1930s and the 1960s [sic]. In contrast, in contrast, only 15 of the more than 600 mosques in Kosovo were listed as historic monuments, even though more than half of these mosques date from the Ottoman era." So you're asking how is it possible that so few mosques were protected? And there were 600 of them. But you have completely forgotten something else: The fact that in the territory of Kosovo and Metohija, there are at least 1.300 Serb monasteries. There are authors that give the figure of 1.400, 1.600, but there were at least 1.300. There are ²⁷³¹ ample books about this. Perosacro [phoen], an Italian author, for instance, but let's not go back to that.

JUDGE MAY: Let us have a question, please.

MR. TAPUSKOVIC: [Interpretation] I have to say all this because if the criterion with respect to ideological considerations was the number of mosques, why the number of churches was not given? Why this difference in approach? Why was it not established how many churches there were?

JUDGE MAY: Let the witness answer. Let the witness answer. It's gone on for two minutes, this question.

THE WITNESS: I believe the question was regarding the number of churches. The reason we could not come to a figure regarding the number of churches is because the statistics Mr. Tapuskovic cites generally refer to any Orthodox structure that may ever have existed in Kosovo, whether it's an archaeological remnant or something merely mentioned in a monastic charter. Our survey was strictly limited to actual standing buildings. And the number I cite of 210 Serbian Orthodox monuments are standing buildings, not archaeological sites that were on the officially protected list.

MR. TAPUSKOVIC: [Interpretation]

Q. That's precisely what I'm referring to. There are still 1.300 churches in the territory of Kosovo and Metohija. This is a fact that you didn't have. At this moment, there are more than a thousand churches, not 210 that are protected, on the protected list based on UNICEF's [as interpreted] criteria, but churches that still exist. Obviously, you do not have that fact. ²⁷³²

A. I don't believe the figure is correct. I think the number of actual intact buildings is considerably smaller.

Q. Thank you. Let me ask you something else. In paragraph 2.2 of your report, where you said that it appears that the purpose of those attacks, and you're referring to sites of Ottoman -- the Ottoman period, that the aim was to destroy buildings and mosques and religious buildings related to the Albanian population of Kosovo. Is that correct?

A. That is what it says.

Q. Why was the same not said of what happened to cultural monuments of the Orthodox church after the war, when the war was over? You said this only in relation to Albanian monuments. Why didn't you say the same with respect to what happened to Orthodox cultural monuments?

A. I believe I say something of this sort in the paragraph 2-5 -- 2.5 where I speak of the post-war destruction of Orthodox monuments. I think it goes without saying that a Serbian Orthodox monument is associated with the Serbian presence in Kosovo.

Q. No, no. You made an assessment here. You said that this was done because they were Albanian buildings and that that was the purpose. But with respect to the destruction of monuments of the Orthodox faith, you did not say that the same purpose was behind it. So you didn't adopt an equal approach to the problem, an equal-sided approach.

A. What is the question?

Q. My question is very clear. You expressed an opinion with respect to Albanian monuments, and you said it appears that the aim was to destroy those buildings. Why didn't you say the same when you established what ²⁷³³ had happened to Orthodox monuments and Catholic monuments and buildings too?

A. I say as much, I thought.

JUDGE MAY: Yes. This is a matter for us to consider.

MR. TAPUSKOVIC: [Interpretation] Very well. That is precisely why I'm doing this, to draw your attention to it. The same applies to something on page 9.

JUDGE MAY: Have you got very much more for this witness, Mr. Tapuskovic? It's 11.00.

MR. TAPUSKOVIC: [Interpretation] Another ten or 15 minutes. I will finish very quickly after the break.

JUDGE MAY: After the adjournment. We will adjourn now for half an hour.

--- Recess taken at 11.00 a.m.

--- On resuming at 11.31 a.m.

JUDGE MAY: Yes, Mr. Tapuskovic.

MR. TAPUSKOVIC: [Interpretation] Thank you, Your Honours. I will really try to be as brief as possible and just ask a few more questions. I have made a selection, and I won't go back to some of the issues, but just to wind up what I was saying and with respect to something that is contained in Mr. Riedlmayer's report. It is paragraph 2.4 this time. In that portion of the report, he makes a statement, an assessment: The army of Yugoslavia, at the beginning of the NATO strikes, used as military facilities -- which represents violations of the laws of war analogous to misuse of the Red Cross symbol. That paragraph. So that is an assessment ²⁷³⁴ that Mr. Riedlmayer makes, that paragraph.

Now, was he able to say that just by having examined the buildings or is it something that he learnt through his contacts in the field and then introduced that into his report?

Q. Could you answer that question, please, Mr. Riedlmayer?

A. Certainly. In both cases, the case of the Catholic Church of St. Anthony in Pristina and the Catholic church in -- I'm sorry. The Catholic Church of St. Anthony in Pristina and the St. Anthony Catholic Church in Djakovica, the information came from the local parish priest, and it was duly noted as such in the entries for those monuments. In the case of the church in Djakovica, the only traces of the occupation was the fact that the friary was being repainted, and the priest told us that that was as a result of vandalism. Clearly, we did not see any visible evidence of what had happened during the war. We merely transmitted the statements of these two priests, both of whom lived through the war in those locations, and their statements are identified as such, as our source of information.

Q. So you considered that an assessment of that kind should be included into that report, and I can agree with that. When you went to see the representative of the Serbian Orthodox Church, did you ask them perhaps about whether some of the buildings dating back to the Ottoman Empire had not perhaps been used at one time or another for these same purposes that you mention here? Did you ask somebody to explain that to you perhaps, or did anybody say anything in that regard?

A. I'm not quite sure what your question is. You said: Did we ask ²⁷³⁵ representatives of the Serbian Orthodox Church about Ottoman, I assume you mean Islamic, monuments. And the answer is no. We asked them about Serbian monuments.

Q. Yes, of course. Here you make an evaluation, an assessment, and say that the Yugoslav army troops used it as a military facility. Now, did you talk to anybody else when it came to damages of Orthodox churches and monuments -- no, mosques first. I misspoke. Mosques. That mosques were used, that mosques had been used for war purposes, military purposes, especially the kullas?

A. The kullas were residential architecture, not mosques. And no, we had no information about any military uses of mosques.

Q. I'm asking whether, in the field, just like you talked to the Catholic priest here, did you talk while you were over there with a Serb representative who could give you some facts and figures and information along the lines of my question? So if you make this kind of assessment in this paragraph, why did you not take the trouble to find out about the other aspect and then introduce an assessment, as you did this one here?

A. Here we were merely transmitting two eyewitness reports by the parish priests regarding the churches which were their own church. We did not ask for, nor did we place much reliance upon, general statements of any sort. Our primary goal was to make observations of our own, and then if eyewitnesses with specific information related to those sites came forward, we would take their statements in a general form. With regard to the Serbian Orthodox Church, as I indicated in my testimony, we engaged in extended correspondence with Father Savo Janjic and with Father Petar ²⁷³⁶ Ulemek of the eparchy of Raske in Prizren. We tried to meet them in October 1999, but they were out of the country for a conference.

Q. I'm just asking you this: If you talked about the fact that some facilities had been used as military facilities, that some buildings had been used as military facilities, why, when you talked to the Serbian representatives, did you not inquire as to whether some buildings were used for military facilities, such as the kullas, if you knew about academician Mark Krasniqi, and according to him, that the kullas were generally used, in addition to being places of residence, for war purposes, and it says there that they were also used in cases of defence, in a blood feud or in fighting a foe, an enemy. So were you interested in learning whether those kullas were being used for military purposes, as military facilities?

A. Collecting that kind of information, asking those kinds of questions, was not really our primary goal. We were there to record the buildings. If eyewitnesses approached us, the only question we would likely ask them is: Did you see what happened to this building, and can you briefly tell us what you know about it? That was the extent of our investigation as far as eyewitness statements goes.

Q. I would like to thank you, Mr. Riedlmayer, for that. I'm just asking you why you included an assessment which did not have to do with what you were doing there, what your job was there. This is an assessment that steps outside the framework of your expertise and interest. That's all I'm asking you. Thank you for your explanation, because you did not follow the same pattern in some of the other parts of your report. ²⁷³⁷ Mr. Slobodan Milosevic -- and I have to go back to that because he was interested in it - spoke about and asked you a number of questions here, but I'm not going to go back to them, that has not been challenged, that none of the important Orthodox monuments were directly hit by a NATO bomb. However, another question is far more interesting, and can you give us -- say something on the subject? The foundations, the foundations of these important historical monuments, especially fresco paintings, and the airstrikes. Now, did you focus on whether there were any damages done to the frescoes? You, of course, know what frescos are and how fragile they are and how they survive miraculously through the centuries, but how they could be destroyed from an -- by an airstrike or bomb exploding or an explosion of any kind? Did you focus your interest on that?

A. Yes. And as I mentioned in my testimony, given that all we could do is make a visual inspection, we relied upon statements from two paintings conservation experts. One is Ms. Tody Cezar, who did the assessment as an independent consultant to UNMIK of a number of Orthodox and Islamic sites that had fresco paintings. The other one were -- was an Italian team that visited sites in Pec and Decani. And their conclusions was -- were that they saw no evidence of war damage. What they did see was evidence of damage from rising groundwater. You could feel the walls, and they were wet. This is something that can be easily remedied through intervention, but if left alone, it will damage the frescoes. Whether or not shaking can injure building, without a doubt it can, but that kind of analysis requires tools and expertise that we did not have at our command. That's why we rely on the statements of ²⁷³⁸ experts.

Q. I don't want to weary Their Honours or anybody else in the courtroom, but just one thing: When you went to Gracanica, Gracanica is right by Pristina, and it's a very important monument to one and all in the world and of course for the Serbs especially, but it is the cultural heritage of mankind. Now, were you interested, when you went to visit it, in hearing what happened to Gracanica? Did they show you, from the Institute for the Protection of Cultural Monuments, the people from there, did they show you this photograph, for example, Mr. Riedlmayer, this one here?

MR. TAPUSKOVIC: [Interpretation] May we have the photograph placed on the ELMO, please, with the usher's assistance?

JUDGE MAY: Yes.

MR. TAPUSKOVIC: [Interpretation].

Q. It is the monastery of Gracanica, Sveti Jovan Pretica. There's a crack, but those cracks go deep down into the foundations of the church itself.

A. I assume that this is the book published in the spring of 1999 by the Institute for the Protection of Monuments of Republic of Serbia. We saw this book, and we looked at the walls. There were a number of cracks in the walls. Many had been repaired back in the '60s and '70s using concrete plaster which is now considered inappropriate material for this kind of purpose. Whether or not the crack is bigger or smaller than it has been before, we had neither the documentation nor the expertise to judge. ²⁷³⁹ Certainly I was there in October 1999 rather briefly. My colleague Mr. Herscher made several repeat trips to Gracanica. In addition, Ms. Cezar went and did an assessment, and it did not seem that the building was in any danger. Furthermore, the monks at no stage mentioned any war damage. Again, the problem at Gracanica was rising damp from groundwater.

Q. I'm happy to hear that you have seen the book. I think it's translated into English. And it says that it has been ascertained that those cracks seriously damaged the very foundations of the church. Now, did you read about that? Have you read that or not?

A. Yes. And as I say, that is one assessment. The experts we consulted said something else. And we would have expected the local monks to tell us about the damage, war damage, if there had been any.

Q. They couldn't have known at that point in time, but thank you for your answer. I'm satisfied with your answer.

You said yesterday in testifying that -- that when -- you testified in front of the OSCE about the destruction of the cultural heritage. Why and when did you testify before the OSCE?

A. This was in April of 1995. It wasn't the OSCE but the Congressional Committee on Security and Cooperation in Europe. It's --

Q. Thank you. Thank you. Yes.

A. [Previous translation continues]... about Kosovo.

MR. TAPUSKOVIC: [Interpretation] That has nothing to do with what I've just asked you. Thank you.

JUDGE MAY: Yes. ²⁷⁴⁰

MS. ROMANO: I just have two matters. Re-examined by Ms. Romano:

Q. Mr. Riedlmayer, during cross-examination you have been asked to deal with several examples of allegations of destruction or damage of specific religious sites, and at that time you did not have your report with you. And with the permission of the Court, I would ask you to complement, if necessary, and very briefly, by using the photographs or any of your material the answers that you gave yesterday. I will refer to some of the --

A. How do I turn this on?

MS. ROMANO: Can I have some help somehow? Can Mr. Riedlmayer have some help? Maybe -- I have here an investigator that is familiar with the computer and the database.

THE WITNESS: So this is our database, and the format is something that should be familiar from the sample sites that we submitted. So which sites were you interested in?

MS. ROMANO:

Q. I will refer to the ones that were put in front of you by the accused.

A. Uh-huh.

Q. For example, there was an allegation that the Pec Patriarchate was hit by the NATO planes, and you answered by saying that you visited that site and found no sign of damage other than rising damp and long-term deferred maintenance.

A. Okay. So -- ²⁷⁴¹

Q. Do you -- do you feel the need of adding or --

A. I can show you the site record that we have for it. It's coming through. Okay.

So here we have no external sign of damage seen in October 1999. At that time, KFOR did not permit access to interior. Mr. Herscher subsequently visited also and conservator Tody Cezar carried out an assessment of the interior murals, found damage from rising damp due to groundwater seepage and from pre-war restorations carried out using inappropriate materials but did not see sign of war damage. She also mentioned to me again that she was guided around by a Serbian guide who made no reference to war damage.

The photo comes from a KFOR website, just showing an Italian soldier in front of the monastery. Okay.

Q. Thank you, Mr. Riedlmayer. Another one would be the Gracanica monastery --

A. Uh-huh.

Q. -- that was mentioned.

A. Okay. Generally, by the way, it was a problem that KFOR, for various reasons, did not permit photography of these buildings, and so we had to rely on outside sources. In the case of Gracanica, we have post-war photographs from the Serbian Orthodox eparchy. So we saw no sign of damage during our visit in 10/99. Mr. Herscher also subsequently visited Gracanica, and Tody Cezar made a very similar observation to what she did in Pec.

Q. Mr. Riedlmayer, it was alleged by the accused that the area of ^{2742 BLANK PAGE 2743} Gracanica monastery was bombed by NATO several times and that the rockets might have damaged the site. Do you -- did you find any evidence of that when you --

A. Well, I --

Q. -- visited?

A. Yes. On the outskirts of Gracanica, there was a major Yugoslav army base which was hit during the war. I don't exclude the possibility that the building might have been shaken.

Q. But when you visit, did you see signs of any damage?

A. But we saw no signs of damage. Obviously, we were not able to do things like erect scaffolding and make technical examinations.

Q. Thank you. Another site that was put for you was the Gazimestan complex, which is in the north of Pristina, and it was also alleged that the NATO planes directly target the memorial complex.

A. Wait. I'm sorry. This is -- the turbe of Gazimestan, after whom the location is named, which is on a hilltop across from the battlefield monument.

Let me try this again. Okay. Here's the Spomenik Kosovskim Junacima, the Kosovo Battlefield monument. You can see it was built in 1953, renovated in 1989. Here's a photo of the only damage we saw. I'm sorry it's a little dark on the screen.

These are these cut-off concrete tubes that were erected around the monument for the 600th anniversary. They hold spotlights, and they used to have these wrought iron ornaments on them which someone had ripped ²⁷⁴⁴ off.

We were also told that inside the monument -- and here is the picture of the monument that actually I took. The monument, as you can see, is intact, but in the back of the monument is a door leading to an interior staircase which we were told had been damaged by explosives, but we were not allowed inside. But again, the door was intact, the stair apparently was damaged, but the exterior of the monument showed no damage other than the ripped-off cast iron ornaments.

Q. So when you visited the structure and the monument, everything was intact?

A. Right. This was in October of 1999.

Q. October of 1999?

A. Yes.

Q. Thank you. Another site, Mr. Riedlmayer, would be the Catholic Church of St. Anthony in Djakovica, also alleged to be hit by the NATO airplanes.

A. Okay. Here's the church. It was built in 1884, during the late Ottoman times. And it gives our assessment that the damage was limited to broken windows from air blasts. There's a Yugoslav army base only a couple of hundred metres behind the church, in the direction of the steeple there, and -- I'm sorry. In the direction of the apse, opposite the steeple.

JUDGE KWON: Excuse me. Could we see the computer monitor which the witness is watching? Yes, please.

MS. ROMANO: Your Honour -- ²⁷⁴⁵

JUDGE KWON: Okay. Thank you.

A. I'm sorry. We were told that the windows were broken by the priest, and it was easy enough to confirm because there were new windows in with unpainted frames. If you look below, we have the statement of the parish priest, Father Ambroz Ukaj, which we took from him during our visit, where he says: On 24 March, half an hour before the first NATO airstrike, Yugoslav army troops ejected the priests and the nuns from the parish house and the church and took it over and stayed there for two and a half months. And the priest stayed in Djakovica throughout the war. He returned to the friary at the end of the war and found the parish house looted, with computers and other equipment gone, and some vandalism, and they were busy trying to repair it when we were there in October.

Q. The next one would be the old marketplace of Pec, that was also alleged by the accused to be hit by the NATO several times and was also alleged to be completely destroyed.

A. Okay. Here we have the old marketplace in Pec. This is one of the places where we were able to get both before and after shots. You can see that, along entire streets of the market, the stores had been destroyed by burning, and we saw bulldozer tracks. Apparently the shops had been bulldozed. But behind the burned and bulldozed buildings, there was an intact row of buildings, and this extended for several blocks. Okay. Below, you see further destruction of the same sort. Here, on one side of the street, the buildings are intact; on the other side, they are burned and bulldozed. And behind it, although you can't see it on this photo - we have other photos - the buildings are intact. ²⁷⁴⁶

Q. Mr. Riedlmayer, according to your assessment, the cause of the damage would be what?

A. Fire.

Q. Is there any other site that you have a recollection that you would need your database to --

A. I can mention one more that Mr. Milosevic asked me about, which was the church at Dolac. Dolac is on a hilltop overlooking the Klina Valley, just off the main highway, but you have to go up a long dirt path to get there, and we were rather worried about mines. You can see the post-destruction photo on top is by Mr. Herscher. To orient yourself, you can see in the bottom picture, just to the left of the church, which is the white building, is a tree, which you can see also in the top picture. The rubble is that of the church, which, according to the Serbian Orthodox authorities, was blown up in the month after the end of the war. We went and found fragments of painted stonework and the slate roof. It was destroyed. This is one of the photos that we supplied to the Serbian Orthodox eparchy for their website.

Below here is another pre-war picture from an official publication from the 1960s.

Q. Thank you.

JUDGE MAY: Ms. Romano, since these sites have been put in issue, it would be helpful to have a printout of these reports, if the witness could assist the Prosecution when he's finished giving evidence. We'll have an additional report similar to the one that you have for the sites in his report, covering, I suggest, those sites mentioned specifically in ²⁷⁴⁷ re-examination, and it can be Exhibit 88A, and if you could produce it as soon as you can.

MS. ROMANO: I also have here with me the CD-ROM that I mentioned -- that Mr. Nice mentioned yesterday, that contains the entire report and all the sites.

JUDGE MAY: Well, are you asking to exhibit those?

MS. ROMANO: Yes. It would be helpful for Your Honours to just -- it's easy to search.

JUDGE MAY: We'll have the CD-ROMs. They can have the next exhibit number. But I suggest that the report which I've requested be 88A in any event, and this one can be the next one, whatever it is.

THE REGISTRAR: The CD-ROM will be numbered Exhibit 93.

JUDGE MAY: Thank you.

MS. ROMANO: No problem. In addition to the CD-ROM, we'll provide another small report with the sites mentioned during cross-examination.

JUDGE KWON: Do you need any specific programme to see the CD-ROM on?

THE WITNESS: Yes. It's a FileMaker database. I believe the Tribunal has a copy of the software, and the instructions for use are in the report here.

JUDGE KWON: Thank you.

MS. ROMANO: Yes. We can provide anything that will be helpful to install the CD. I just have one more question.

Q. Mr. Riedlmayer, you mentioned that you did not include sites in the report that were no documentation, for which there were no photos ²⁷⁴⁸ available.

A. Right.

Q. That was referring to Serb sites?

A. That was referring to all sites.

Q. To all sites. So Serb and non-Serb sites?

A. Exactly.

MS. ROMANO: No more further questions, Your Honour. I just have just one matter that I think is outstanding.

THE WITNESS: I'd like to also clarify that in the database, for technical reasons, there are sites for which we saw photo documentation but we could not include it. This mainly concerns the IMG database, which is password protected and so you can't move images out of it into another database.

MS. ROMANO: Thank you. Your Honours, just one outstanding issue was about the exhibits that -- the photos and the map that Mr. Milosevic showed the witness and the witness dealt with yesterday, that I don't know if you want to -- if Your Honours want to raise that issue.

JUDGE MAY: I'm not sure where they are. I think they may have gone back to the accused, in which case they can stay with him. I'll just ask the registry if they have them.

THE REGISTRAR: Yes.

JUDGE MAY: Yes, they're with the accused. It will be easier if they stay with them.

Yes. Thank you, Mr. Riedlmayer, for coming to give your ²⁷⁴⁹ evidence. That concludes it. You're free to go.

THE WITNESS: Thank you.

JUDGE MAY: It may be convenient if we adjourn for ten minutes before dealing with the outstanding procedural matters. We'll begin with the Prosecution, the length of trial issue, and then go on with the other issues.

[The witness withdrew]

[Trial Chamber confers]

JUDGE MAY: Ten minutes, until a quarter past.

--- Break taken at 12.06 p.m.

--- On resuming at 12.18 p.m.

JUDGE MAY: Mr. Nice, it may be convenient, as I say, to take the issues, first of all, the Prosecution case trial estimate first, then to deal with the facilities for the Defence, including the Registry proposals, and finally, deal with the evidential issue about the binder. So we'll hear you.

MR. NICE: Your Honour, the position I think at the moment is that as our paper, headed "Position in Relation to Management of the Trial," before the Chamber, seeks no immediate relief and simply identifies what we believe to be the present position and perhaps the present problems that we're all facing. The Chamber indicated at the beginning of the week that it would like some help from us in relation to estimates, and I think I responded at the time that a considerable amount of work was being done to try to bring realistic assessment to where we stand. In the event, because of the requirements of using tomorrow for a witness and advancing ²⁷⁵⁰ to today the hearing on procedural matters, the calculations of witness numbers have been done on all three parts of the indictment, but in a somewhat rough-and-ready way, and I'll come to that in a minute. But to summarise the position set out in recent filing, the Prosecution's view is that in light of the present and to some degree changed circumstances of the accused taking a full part in the trial, cross-examining fully and extensively, and in light of the decision that so far has been made about the use of 92 bis material, two things follow: One, that any earlier plan to call the most limited amount of material, which may have been possible if the accused had not been taking the part he has been, is a plan that now is redundant.

And second, immediately following on the approach to 92 bis of the Chamber, other considerations may apply which will enable time to be saved.

Before I move on to where we are and how we respectfully suggest matters can be dealt with, can I suggest for ease of understanding that the paradigm problem that we face in cases of this kind is that if, for example, you have a location, a village or municipality, where events happened for the proof of which there would typically be, say, ten witnesses who could give a complete view, can it ever be satisfactory simply to call one witness and have him fully examined and fully cross-examined and know nothing about or take nothing from the other nine simply because the overall time problems of the case make it difficult to hear anything of the other nine witnesses? And so it is that we've referred in our filing to the Chamber to the possibility of certain ²⁷⁵¹ procedural steps which would enable the Chamber to become fully seized of all material that it would need or wish to be seized of, while saving an enormous amount of time compared with the time that would be consumed if every single relevant witness were taken fully.

So that's, in summary, what the Chamber knows to be our position expressed in our paper.

We go on to suggest that there are two ways in which the problem may be mitigated. First, by the use of summarising witnesses of a kind that have been used in other cases, dealt with at an early stage in relation to Kevin Curtis when the Chamber rejected his evidence, something to which we will wish to return fairly soon with the killing-site evidence --

JUDGE MAY: The other cases you had in mind, Kvocka or Krstic, is it?

MR. NICE: Yes. Where there was a summarising witness who reviewed the evidence overall and then a sample of the evidence was called. And so that's one technique which --

JUDGE MAY: So who do they call; an investigator?

MR. NICE: Yes.

JUDGE MAY: And he summarised the Prosecution evidence?

MR. NICE: Yes, he did. And their reports -- I mean -- should I be turning it off each time?

JUDGE MAY: I've been turning it off.

MR. NICE: Well, I'm not going to make any complaint about that. We set out in the filing why this is desirable, but perhaps for ²⁷⁵² the slightly wider audience that may be attending, I'll give the reasons again here with some concrete examples.

First of all, if the time constraints of the trial are such that it's simply not going to be possible to take in full the evidence for each particular site that one would want to have taken, then if you just take the one witness or two, the Chamber proceeds in ignorance of what else, as it were, is available. If it hears a summary of what that other material amounts to, as I have suggested in the filing, that summary of material has three distinct potential values to the Chamber. First, the material may have some weight in itself to know that there are so many statements from so many witnesses given in a manner consistent with the live evidence may have some weight, and there's no reason to suggest otherwise. Second and perhaps, in a sense, of more value, it can provide a way of checking provisional or, indeed, final judgements of the Chamber if the Chamber could be satisfied from what it hears that there is no evidence significantly contrary to the evidence that it's already heard. The Chamber is thus, as it were, seized of all the material. Although it hears only part of it in detail, it's seized of all the material to that extent.

And third, if it does decide that there is reason to be concerned about the effect of the Prosecution's evidence, it could either suggest that the Prosecution call more evidence on particular topics or, indeed, call more evidence itself.

Can I suggest one example of how this evidence -- this approach to evidence might have been useful in the trial thus far and indeed useful to ²⁷⁵³ the accused in this particular example? In the early stages, there were one or two or it may have been several witnesses whose evidence to Your Honours was, to use an understatement, somewhat shy on the topics of the involvement of the KLA, and indeed it was revealed that they had said more in their witness statements about the KLA maybe than they said to Your Honours. Well, it happens that that was elicited in relation to the individual witnesses in court. But one can imagine how it would be helpful to the Chamber to know that, for example, what those witnesses had been saying about the KLA in their statements was matched perhaps by what other witnesses were saying about the KLA in their written statements. And it would be infinitely preferable on a topic like that that the Chamber should have that body of material before it rather than not to have it.

So the summarising witness, in our respectful submission, is a witness that can leave the Chamber in possession of, seized of the material in a way that will be of value to it. It can attach some value to it, as I'm sure it did, I believe it did, in the judgement in Krstic. But its real value may be as a check or/and as a provider of information as to what other steps, if any, ought to be taken. There's another particular way in which summarising evidence may be of use in this particular trial. I've spoken thus far of the paradigm problem where you've got a location for whom you would normally want to call ten witnesses but the time constraints are going to make it desirable only to call one or two. The same problem exists where, for example, you're looking at the 47 municipalities currently charged in respect of ²⁷⁵⁴ Bosnia.

Now, it may very well be in due course that by one route or another the Chamber is only going to be troubled with detailed evidence in relation to a smaller number of Bosnian municipalities. I'll come to this as a particular resolution quite shortly.

If, for example, the Prosecution sought to prove its case in respect -- in detail in respect of only 25 of those municipalities, leaving on one side 22, there would always be the possible allegation that we had, in the vernacular of the age, been cherry picking. We'd simply been calling the best evidence which may have been wholly inconsistent with material elsewhere.

Now, in those circumstances, summarising evidence given in relation to the other municipalities, summaries that of course could be checked by reference to the raw material by the amici or by those representing the accused would serve the same three purposes and have the same three values that I've already identified.

First, it could be of some value in itself, bearing in mind the need to prove widespread and systematic conduct, but second, it could deal with any allegation that there had been a selection of material that was unfair or unrepresentative, and so it would serve that very considerable purpose.

JUDGE MAY: I think the answer to that potential criticism is that the Prosecution are under an obligation under Rule 68 to disclose any exculpatory material. So if it was said that a Prosecution was simply selecting the best evidence, why, the answer to that would be, Well, ²⁷⁵⁵ that's the Prosecution job, to select the best evidence. In any event, the interests of the Defence are protected by the requirement to disclose any exculpatory evidence.

So speaking for myself, I don't see that that is a problem, the problem of selection.

MR. NICE: The Rule 68 obligation, which I was going to turn to at a later stage, is indeed an important bringer of some security to the Chamber and to ourselves in our separate functions, but on matters as wide in scope as the crime base, it's perhaps rather difficult to know exactly what is Rule 68 exculpatory. Particular events, yes, but the overall interpretation of a course of conduct, not so easy. And so although we for the Prosecution do two things, first, we attempt from the - I think in Kosovo 1.300 - witness statements that we have, to select what is a fair and proper representation of what happens in any particular area. And then secondly, we hand over - and we've had a recent exercise to ensure that this is done - we hand over under Rule 68 statements that are exculpatory. With the quantity of material and the wide nature of the issues involved, there's inevitably a sort of area of judgement, and we cannot be sure, as I have said, frankly, but as you select down to one witness per site or two witnesses per site, that we can really be getting something that is truly reflective of an overall history and situation. We do our best. We hope we get it right. But it is a very difficult exercise.

Just let me make this point: The 68 exercise in relation to the 1.300 witness statements has led to the identification of the statements ²⁷⁵⁶ to be served. I think there is 105 that are now going to be served additionally. They haven't yet gone out. They will be going out I don't know how soon, shortly, but there are considerable problems about production of material in the Office of the Prosecutor. The advantage -- well, let me go on a little bit about summarising witnesses or witnesses who are able to review summaries of evidence.

JUDGE MAY: There's a problem about the Albanian translation which will require some repair work, but I think we'll go on -- we can go on without the Albanian translation and get it done during the adjournment.

MR. NICE: A couple more words about the summarising witnesses. There are summaries of -- various people are working on databanks of material in relation to all of these cases. We have seen them already. We've had, say, local witnesses who have their own collections of reports, the humanitarian witnesses, humanitarian group witnesses. We've had Dr. Ball and his evidence. And we know already of the existence of the OSCE report on which the accused has indeed been cross-examining, which in due course I may seek to lay before you before a witness. It's a report that, incidentally, deals with both sides of the conflict.

JUDGE MAY: Speaking for myself, it sounds as though it would be helpful to have that.

MR. NICE: We have them already here and --

JUDGE MAY: In due course --

MR. NICE: In due course.

JUDGE MAY: -- and in proper form, because, interrupting you for a moment, going back to your point of the summarising witnesses, it seems to ²⁷⁵⁷ me that reports of that sort may in fact cover, although not precisely the same, as I understand, but may cover a broader ground of material than the witnesses, and such reports have been, without controversy, I think, admitted in the Tribunal.

MR. NICE: Well, Your Honour, we would certainly seek to lay those before you, and again, they serve, subject to the Court being satisfied as to the methodology of their preparation, they serve the same valuable purpose. So that, for example - and again, looking at it from the accused's point of view, because he so far has been relying on them - if, in relation to any particular location, we were to call evidence to a particular effect and the Chamber were to find from the OSCE report contrary conclusions, then that's the sort of material it might want to say: "Well, this requires further evidence, either you, the Prosecution, to deal with it, or alternatively, we, the Chamber, to deal with it." So it's that sort of material that's very valuable, in our respectful submission, or can be. And again, as I've said in the filing, if this approach is good, then it has to be good, of course, not just for documents that we might seek to produce, but again, subject to proof of methodology, documents that might come from the accused and have a different general approach.

The overall advantage, and one that we respectfully suggest is extremely important, is that at the end of the exercise, it will not be possible for people to complain, either under any appeals mechanism or indeed elsewhere, that the Chamber hasn't been seized of all the relevant material and given it consideration, not necessarily all as live evidence, ²⁷⁵⁸ but at least given it consideration. And so with that in mind, and bearing in mind that what the investigators do is much the same as what is done by, for example, the OSCE, but on a more localised basis, we will be urging you in due course to take summaries of the witness statements prepared for the OTP for all those purposes and as part of the exercise of ensuring that the trial can be dealt with in a compact but nevertheless a proper way, that will give judgements of the Court sure foundations. Now, I know Your Honour was going to deal with the binder issue later, but may I respectfully invite you to deal with that now, because it touches the same issue and is another way of --

JUDGE MAY: Yes.

MR. NICE: -- looking at the way we can move forward.

JUDGE MAY: Yes.

MR. NICE: I think that the Chamber had Bela Crkva.

JUDGE MAY: Yes, we do.

MR. NICE: And what I'm not sure is whether you have Bela Crkva in exactly the form that it's been served on the accused and on the amici. Because it may be that out of deference to the Chamber's concern at reading material it might not want to read, we may have excised one or two things. But I can tell you what's in a typical binder as we would propose to lay them before you. And if you have --

JUDGE ROBINSON: We don't have it here, Mr. Nice, but we are familiar with it.

MR. NICE: Thank you.

JUDGE ROBINSON: I have looked at it and I have notes on it, so I ²⁷⁵⁹ think I'll be able to follow what you say.

MR. NICE: I'm grateful for that. Your Honour, if the document -- well, again, for the wider audience that may be listening, and to follow what we're going to be suggesting now or at a later stage in the trial may save a lot of time: The location binder, municipality binder, village binder, whatever you like, driven really by civil-system dossiers but of course distinct from them, dealt with by the same Chamber, Your Honour's Chamber, differently composed, in the Tulica decision in the case of Kordic, is designed to allow procedures to operate in the following way: Sometime before the evidence would be called for the particular location - a few weeks, a month, or whatever it might be - all parties would be provided with -- or having been provided with the binder, would review in advance the evidence that would be called in relation to it. At that review, the Prosecution could explain what its position was, what witnesses it intended to call live or what witnesses it intended to adduce 92 bis, and so on. The accused would be in a position, as would the amici, to join in this exercise, and we suspect that it would be possible for the Chamber, even with an unrepresented accused, to narrow down with him the issues that were really live issues in respect of that site. I note parenthetically that the accused's response in relation to the Kosovo crime-base material may be different from the response that he will make in relation to the Croatia and Bosnia crime-base material, but we can't know that for some time to come.

With that general introduction in mind, what the binder has on the first sheet is a simple, very short one-page summary of what the case is. ²⁷⁶⁰ Now, this is really almost like, as it were, an opening statement, where we could have read all of these out and got into trouble for going on too long in the opening, and it wouldn't have served much of a purpose. But it's basically a summary of the Prosecution's case in relation to that location, the Bela Crkva killing site, as it is described, and it can do no prejudice to the defendant to have the Prosecution's case identified at that stage, and must help.

There then follows, in the case of Bela Crkva, 65 ter summaries of all, bar one, of the witnesses who we would intend to call - I'll deal with the one additional witness in a second - followed by, in each case, the original witness statement of that proposed witness. Well, of course the summaries are already available to the Chamber, but now they're collected together in a way that we hope will be helpful. Considering the statements, in our respectful submission, which is something that Your Honour and Your Honour's colleagues could do or could decide not to do until invited to do in a hearing or whatever, is not something that would embarrass the Chamber, being a Chamber of professional Judges, and indeed, as I understand it, other Chambers of the Tribunal are at the moment indeed taking possession of in order to read witness statements. But the statements are there, and the composition of the binder then follows --

JUDGE MAY: The statements wouldn't be admitted as evidence?

MR. NICE: No.

JUDGE MAY: Just merely part of the background?

MR. NICE: It's part of the background. And so that if and when ²⁷⁶¹ it's argued that Witness X adds to what Witness Y says in a material way and thus we need to call both of them, if that proposition is challenged, the matter can be immediately considered. If it's said that Witness X says something that's contradictory to what Witness Y says, and therefore the accused says he should be called, again, the Court is in a position to form a judgement on it straight away and decisions could be made.

JUDGE ROBINSON: Are those statements coming in through the investigator?

MR. NICE: No. Well, Your Honour, as I've -- as we just explored, they wouldn't be coming as evidence -- they wouldn't themselves be coming as evidence, but the next -- Your Honour is quite right in this: We then go beyond the table of contents, and the first witness statement is the statement of the summarising investigator, who would in all cases be the investigator who is closest to that particular location, who is -- typically, of course, more than one investigator will have taken statements and so on, but he would be the investigator who has been charged with looking at that site and dealing with it in detail. And in this particular case, although it's a very major crime and a very serious event on any reckoning, his summary is just over three sides. So again, it's a short summary. Basically it's, again, a summary of what is said and what's available.

JUDGE MAY: That is one thing, a summary of what's there and what is available. That is one thing. But evidence is another, and that surely is an important distinction.

MR. NICE: Certainly. ²⁷⁶²

JUDGE MAY: If we were to admit the summary purely as that, and nothing more, for instance, as with the summaries of the witnesses we get - their summaries are not evidence - if we admitted that, that might be one thing, likewise the witness statements. The crucial thing is, of course, what we admit as evidence. Or may be the crucial thing.

MR. NICE: Indeed. Well, Your Honour, of course, if the witness, the summarising witness is called, and, for example, gives his evidence: "Well, I've gone through all the witness statements and they are broadly to this effect," and then he's cross-examined and he says, "Yes, it's quite true that these witnesses all, actually, in their statements acknowledge the presence of the KLA on the hill above so-and-so, even though only two of them were expected to be called," whatever it is. As I've suggested earlier, in each case, both in chief and in cross-examination, the evidence will have some value. I'm not shying away from that.

And I think you'll find in Krstic, if we look at the way the evidence was dealt with there, and I haven't reviewed it recently, but I think you'll find that the summarising witness was referred to, and probably quite extensively. So I'm not going to dodge that column. But we would accept that the evidential value, if any, ultimately to be attached to the evidence of the investigator would be moderate at the most. But I'm not suggesting it doesn't have any value. Then the rest of the two rather large binders for --

JUDGE ROBINSON: You will then be asking us to take a slightly different view of the investigator's report from the one that we took in ²⁷⁶³ Tulica.

MR. NICE: Certainly. And as I've said in the motion, things have moved on from there, and also this case has its own particular difficulties and problems that we've simply got to face. Also, the practice of the Tribunal has developed, and we have these other cases to compare.

But yes. And of course Your Honour, I'm sure, won't mind my saying this: The view was taken at the time, not necessarily in this Court, that these dossiers, if they had proved to be acceptable, could be one of the - at that stage - could have been one of the most efficient ways of saving time. There it is.

I move on. The rest of the binder is self-explanatory. We've got some Rule 70 surrogate sheets, because that evidence hasn't yet met all its requirements; there are the individual exhibits; there's the exhumation reports, which I think under the Tulica decision the Chamber was prepared to accept in any event; and then there are a large number of photographs.

So that to take this particular site, a major site in Kosovo, to understand what the Prosecution's case was, what the evidence available is, would take experienced Judges a really limited period of time to understand. It's been put together in a way to make ready access to the material. And with that understanding of the case and of what material is available, it's our invitation to the Chamber that we could then meet a few weeks before the Bela Crkva evidence would be given and say, in relation to it: "Well, we are proposing to call these two witnesses, ^{2764 BLANK PAGE 2765} which would be our proposal, plus another witness who happens to have come up for consideration after this binder was prepared." But we would then say, "There's a third witness who we think probably doesn't need to be called because we can probably do without him, and the other two witnesses we would propose not to call." And subject to any representations that might be made by other parties, and although the Chamber, of course, wouldn't be expressly approving what we were doing or taking the decisions for us - I'll make that clear - we could then proceed either to call those witnesses or to call less of them or to call more of them, following on the decisions made by the Chamber. And in this way, the Chamber will, of course, have command of the unfolding of the evidence and of the timetable, and by drawing from the accused identification of what issues there are and what matters are not in issue, we will be able to save, I would hope, a very great deal of time.

Now, incidentally, there's one thing I ought to say, and I keep meaning to say it and then keep forgetting it, so I'll say it now before I move to the next topic. The Chamber, having made the decision about how 92 bis should apply certainly thus far in this trial - that is, by statements being presented and the witnesses being subject to a few questions in examination-in-chief, and then to cross-examination, re-examination - has identified a method of applying 92 bis which may save, per witness, a third or half of the time even that that witness would take were he examined in full in the conventional way. We don't know how it's going to work out. We'll probably have our first 92 bis witnesses in the middle or end of next week. I hope so, certainly. But ²⁷⁶⁶ amongst other things that we should bear in mind, perhaps, is that by the use of that method of 92 bis, which may be applicable to even more witnesses than had been the subject of our application, we'll be able to save a great deal of time. For although I know, and well remember, the observations made from the Bench about the desirability of having critical bits of evidence given in detail in chief, sympathise with that, this is a trial which has difficulties of scale that have to be grappled with. And if one can save, with a large number of witnesses, a third of the time or half the time they would take by having them formally adopt their statement in front of an officer of the Chamber and then just giving cross-examination, well, we will have achieved much. The only additional observation I'd make in relation to 92 bis at this stage is this: If 92 bis witnesses, either in this sector of the trial or in any other sectors of the trial, are to give evidence but to be subject to cross-examination, we would ask consideration in due course to be given to so varying the provisions that they can come to the Tribunal on a single occasion, at the beginning stage of which they adopt and make whatever amendments that are necessary to their statement in front of an officer of the Chamber, and are then thereafter, a day or so later, giving evidence and being cross-examined. Because this would, of course, save an enormous amount of time, money, and administrative difficulty which follows from having the 92 bis formalities dealt with in the field. But that's another matter of detail, but it's something I would ask you to have in mind, if not immediately, then in due course. Because, of course, as we all know, for the taking of 92 bis statements, great teams of ²⁷⁶⁷ people, not just from the OTP but from the Registry, also have to go down to the field.

JUDGE ROBINSON: Mr. Nice, just two or three questions on the binder.

MR. NICE: Yes.

JUDGE ROBINSON: Since you intend to use it as a particular approach to be followed in other binders, it will be useful to clarify some matters. In two or three cases, you seek to put in documentary evidence from persons whom you intend to call as witnesses. So the question is whether you wouldn't wait until those persons come as witnesses and have them -- have the documentary evidence put in through them. There were three cases like that.

Also, there was a reference to Rule 70 materials. Rule 70 deals with matters not subject to disclosure. But when I looked, I didn't see any documents, so I didn't have any basis for making any determination or giving any advice to my colleagues on that matter. There are some pre-conflict victim photographs, and I wasn't able to understand the value of that, the pre-conflict victim photographs. And in relation to the British forensic team exhumation report, a general comment would be that it would seem to me that the presentation would be improved and rendered more intelligible by a system that identified the deceased persons listed in the schedule to the indictment, with the specifically named persons in the schedule of identification. But this may not be a matter of controversy, but perhaps it could be done.

MR. NICE: Dealing with those four points in reverse order, I ²⁷⁶⁸ entirely agree with the last point and I'm sure it's something that we should attend to.

Dealing with the penultimate point, which I think was about the photographs of the deceased in life, yes, it is the case that such evidence is sometimes given by witnesses. Its relevance is more human than forensic. We have a duty not to overlook entirely the human interest in the case, but we are sparing in the way we present material that would have such an impact.

The -- I think I may have missed the second point. The first point about --

JUDGE MAY: I think we have that second point, yes.

MR. NICE: The first point was about documents, and I think Your Honour probably has in mind one or two hand-drawn maps. Unless the document is likely to be in any sense prejudicial, in the event of its not being proven, I would invite the Chamber to consider leaving such material in because frequently it's explanatory of something that is otherwise unclear in the statement. And again you can imagine the circumstance where you might have two different witnesses whose accounts would appear to match in writing but then the diligent amici or the accused would say, "But in fact you've only got to look at their plans or the other documents they produce to see that what they're saying is entirely at odds one with the other." So we would respectfully invite you to say that the statements together with produced documents should ordinarily go together.

Now, Your Honour, that -- I don't know if that deals with Your ²⁷⁶⁹ Honour's questions.

I'm sorry. Rule 70. As to that, such material will be provided as soon as it is possible for us to do so.

JUDGE MAY: If you could deal briefly, although it's coming up to 1.00, perhaps go on for another five minutes and give us a broad overview, because that is the matter we are most concerned with, I have to tell you now.

MR. NICE: Your Honour, yes. The statistics, which are raw statistics and which have been produced without my detailed participation because I've had to be involved in Court - I'm not suggesting they're not better for that; they're probably much better for my not being involved in this - but I'll hand them in in any event if I may, if the usher would be so good, are initially alarming, and then I'll hope to satisfy the Chamber that things are not alarming.

To explain what's been done, each team was invited to, in the light of the way things have developed, to abandon any rule of thumb that says one witness per location or one witness per municipality, and say what would you actually -- what do we need in respect of any particular location to prove the case properly?

So that if we start with Kosovo at the top, where in fact globally there's been comparatively little change, and the columns are divided as between X, those who have already been called, and Y, those to come, the -- and we perhaps needn't worry too much about anything other than crime base at the moment because -- for reasons that I can come to, but crime base, the total of 97 crime-base witnesses is what's presently ²⁷⁷⁰ identified, 17 already called, 80 to come, and that includes those who by whatever means are 92 bis.

Perhaps I should again say in relation to 92 bis, of course 92 bis allows for statements to be read or even to be taken as read without the witness being called, and we aren't suggesting that the Chamber may not in other circumstances in other parts of the case say that 92 bis can operate in that way so that the evidence can simply be presented in written form, but we're working at the moment on the basis that the Chamber may, if the accused maintains his attitude towards 92 bis statements, want witnesses to come and be available for cross-examination. We don't encourage that, but we work on that basis.

So that adding up the live witnesses and 92 bis witnesses, there are 80 more of those to come in total in relation to Kosovo. And that takes account of the fact that there would be investigators summarising some or all of the particular scenes.

The Chamber will have in mind what's said in the motion about Racak, which is, of course, a particularly significant scene even if it features little in the indictment. It's significant because of the part it plays in the history. And the Chamber will know that the accused has already made considerable reference to it in his opening. And it's a scene where quite a number of witnesses will have to be called. But still, if our invitations are acceptable to the Chamber, this is a number of witnesses -- this is the number of witnesses whose necessity could be reviewed by the Chamber on review of binders, one by one, as we approach the evidence of a particular location. ²⁷⁷¹ Turning to Croatia. Croatia presents a difficulty in one sense that, unlike Bosnia and save for the Dokmanovic trial, has not been the subject of any evidence thus far, so there's no possibility of saying in respect of any witness called and cross-examined on another occasion so we could put in a transcript.

So again, the total --

JUDGE MAY: Save for Dokmanovic.

MR. NICE: Save for Dokmanovic, yes, but not much of that would, I think, necessarily help.

So that here are 126 crime-base witnesses. And what Ms. Uertz-Retzlaff and her team have done for the purposes of 92 bis is simply to identify such witnesses as they feel can be taken in a shorter form under 92 bis. But this is a very rough-and-ready approach, not least because there may be different ways in which 92 bis may operate depending in part on the response of the accused to crime-base material, crime-base evidence in the other sectors of the trial.

Bosnia is, of course, the case that raises the largest concern, but I've already indicated how it may be very significantly reduced. But thus far, looking at the 47 municipalities, a very large number of witnesses, 566 to cover crime base, are identified, or a large number.

Incidentally, I better add again, parenthetically, although the figures are high, we don't suggest that if you're looking at three wars over the periods of time with which we are concerned, the overall number of sources is anything like extravagant, but it's a question of ²⁷⁷² recognising the needs of a trial and all the other competing interests that operate here.

Now, Mr. Groome and his team, on dividing up between viva voce and 92 bis, have had two things in mind in order to identify the witnesses who might be taken in shorter form. One, the witnesses that had already given evidence in other proceedings; and two, witnesses who appear to them at the review that it's possible to do in the time available, to be merely duplicative or confirmatory of other evidence.

But now Bosnia - and I don't know if you want me to go on now beyond the five minutes you allowed me - needs a little more explanation, I think, as to where we are likely to be and why we are where we are.

[Trial Chamber confers]

JUDGE MAY: We'll adjourn now. 2.35. But, Mr. Nice, may I make it plain that we have obviously been considering matters during the break, and what we have in mind and what we wish you to address us on is this: We have in mind making an overall order for the length of the Prosecution case. We think this case must be brought under some broad direction, and everybody should know where we're going, and it might be helpful if we made an order in that direction.

MR. NICE: I look -- can I deal with that after the break? Because it's something about which I want to say something.

JUDGE MAY: Yes.

--- Luncheon recess taken at 1.05 p.m. ²⁷⁷³

--- On resuming at 2.33 p.m.

JUDGE MAY: Mr. Nice, we have an hour, and we must deal with the other outstanding issue about the Defence facilities.

MR. NICE: Certainly, Your Honour. Can I correct a couple of things that I said this morning and amplify them, very briefly? I think I said in the Krstic case it was the witness Butler. Although I think the witness Butler may have referred to some witness statements, in fact, it was the witness Jean-Rene Ruez, the first witness in the case, whose evidence I had in mind, which indeed I've had printed out and which contains a quantity of summarising evidence of witnesses. I think Your Honour may have mentioned the possibility that summarising evidence was given in the case of Kvocka, and it was in relation to mass grave -- or a mass grave or mass graves. And odd that I should have overlooked this one, particularly of potential significance in relation to Bosnia. In Jelisic, at trial, the chief of investigations, John Ralston, gave extensive background evidence for the purposes of really establishing widespread and systematic conduct, built on witness evidence of which he was familiar but which wasn't given. So that that's one correction and some additions. Alert as I am to the time restraints here today, can I, in looking at the figures that we presented shortly before lunch, and before coming to Your Honour's question about an overall time for the case, draw something to your attention which I hope will be helpful? The Kosovo figures are broadly much as they had always been, save for the fact that witnesses we had thought might - in numbers, in any event - save for the ²⁷⁷⁴ fact that witnesses we had thought might be given 92 bis without being called at all will now have to be cross-examined, but the numbers are broadly the same.

As a matter of history, in Kosovo, there were at least probably ten witnesses per site initially, reduced to five, and then the five further reduced, and thus to produce the figure. And of course, our invitation is that provided the Chamber is seized, in one way or another, of what the material amounts to overall, we can satisfy our responsibilities with this number of witnesses.

Coming to Croatia, with the problems -- not the problems, the particular features of the history of this evidence that may affect us. In Croatia, there are 20 murder scenes, there are 17 detention camps, 3 deportation sites, and then there's Vukovar and Dubrovnik. So that without doing the math publicly, that's something in the region of only three witnesses per site. It's a very economic allocation at the moment, as we hope you will accept.

Coming to Bosnia, at the moment, 47 municipalities, and I said I'd say a word about the history. At the time that the indictment or the -- yes, the indictment was proffered, the Prosecutor, who of course would have to be involved in any decision to change the indictment, had in mind - and I wasn't here at the time that this was effectively decided - had in mind the need to be consistent with other indictments that had already been served, and therefore if the 47 municipalities had been covered in the relevant associated indictments, there would have been no logic in pursuing a different course. ²⁷⁷⁵ Two things: First, there has already been some reduction in allegations made in the other indictments, so the consistency will enable a slight variation in Bosnia.

Second, as I've explained in the motion -- and I hope I'm not going too fast. If I am, I'll slow down. As I've explained in the motion, there are, in the mind of the OTP generally, further radical proposals in relation to the Bosnian Serb cases which may enable further streamlining of those cases and thus of this. That's for your information, and I hope by way of encouragement, but nevertheless, that's a reality.

JUDGE ROBINSON: Mr. Nice, sorry to interrupt you. You have mentioned several strategies for streamlining and reducing the case, but it occurs to me that there is one basic measure that the Prosecution could take and which it has not taken and that is just simply to reduce the size of the Prosecution case. So that instead of presenting evidence in respect of 47 municipalities, you would take what would be a representative sample, representative of the crimes charged in the indictment as a whole.

Now, I say that because in the three years and three months I've been here, it's become quite clear to me that the prosecution of the most serious breaches of international humanitarian law cannot take place if there is brought to court and if there is sought to be presented in court evidence from every municipality or every crime site or every incident that is mentioned in the indictment. You may indict it, but I think serious consideration will have to be given by this Tribunal as to what is ²⁷⁷⁶ to be presented in court as evidence.

If you have 47 municipalities, the question is: Why do you need to present evidence from the 47? Why can't you present evidence from a half of that or a third of that? And if you started in that way, instead of six seventy-eight witnesses for Bosnia and you were to take a third of the municipalities, you will probably have - I don't know - a third of that number. But that is really the problem that we have to grapple with. And until we can grapple with it, I think the Tribunal will always be facing a very serious problem. And under the international scrutiny as it is, I think it is going to be increasingly difficult for the Tribunal to devise strategies that will bring its work to an end. And I raise this as a matter for consideration, and perhaps it may have to be taken up at a different level, on an institutional basis, that the size of the Prosecution case, for the purposes of presentation of evidence, should be different, should be less than what is indicted.

MR. NICE: Your Honour, I'm happy to say I'm in complete agreement with everything you've said, and indeed had already indicated this morning that plans are under way for the consideration of, for example, calling to the level of proof sufficient to make findings of fact sufficient to found convictions only perhaps half of these at this stage. These matters will, of course, have to be considered within the Office of the Prosecutor at its highest level, when I'm in a position to have those discussions, which I'm not, for example, this week, but that matter is under active consideration.

And the Court will remember that I suggested this morning, perhaps ²⁷⁷⁷ much the way that it was dealt with in Jelisic, that to avoid allegations of cherry picking, these allegations having been raised in the indictment, it would be appropriate to proceed on the basis of a selection provided by whatever mechanism involving, for example, the amici as well, it would be possible to satisfy ourselves that the other material which might have no evidential weight, that the other material would not reveal anything inconsistent with what we were laying before you. Therefore, that does bring me to the potentially good news about Bosnia, because Bosnia is 49 -- 47 municipalities and a total of 566 crime-base witnesses, looking at the crime base. That's about 11 per municipality. Of course, some much larger, some much smaller. And the Court will remember that I told you that we started with Kosovo with about 10 per municipality and have gone through the process of being able to pare it down.

Now, I'm not saying that we're necessarily going to be able to do that exercise to that degree because Bosnia is a bigger case. But bearing in mind that the accused's reaction to the crime-base evidence may be different, bearing in mind in particular that the Trial Chamber may be able to elicit from the accused, who doesn't negotiate with us directly at all, identification of issues which will enable perhaps witnesses to be given 92 bis without being called for cross-examination, if his contest there is different from here and so on, there is, I think, every reason to believe by the time we have been in a position or are in a position to announce our much narrower focus in terms of municipalities, 25 or Your Honour might wish it to be less and it may be possible to be less, but if ²⁷⁷⁸ we start with 25, this case can become, I'm quite sure, manageable. And that brings me to the question that His Honour Judge May asked me immediately before the break about the length of the case. I must respectfully decline to give an overall length of time for two reasons, really. One, I simply can't at the moment; and two, I having experience that shows that it may be undesirable, certainly at this stage of any trial, to fix a time limit, because of course that makes ultimately the Prosecution vulnerable to the length of cross-examination which can serve the purpose, as it may have done in an earlier case intentionally otherwise, of consuming time and thus shutting out evidence. And it's our respectful submission that what's important is that this case should be managed so as to identify the issues and bring the necessary evidence to deal with the issues but no more than that in showing that the Chamber is adequately seized of all the material it needs to be seized of. And against the notion of setting a time limit on a case at this stage, I am fortified by a decision of the Appeals Chamber in Galic. And it's dated the 14th of December. And in that case a time limit was imposed -- I'm sorry. I've only just very helpfully been reminded of the decision by Mr. Groome, and I haven't got copies for you. I can make mine available, of course, immediately.

And a particular time limit of 380 -- 280 hours was set. And His Honour Judge Hunt, who presided, made this observation in paragraph 7, taking it very shortly, having dealt with the powers under 73 bis and (E) and said:

"Unfortunately as the brief description of the Pre-Trial ²⁷⁷⁹ Conference demonstrates, it was anything but clear what the final issues in dispute were to be at the time when the Trial Chamber imposed the restriction upon the length of the Prosecution case. The Trial Chamber's discretion in fixing that restriction therefore miscarried and error has been established."

Now, here I ask the Chamber to accept that everything that all parts of the OTP in all three indictments it has done so far has shown that it has no desire to extend this case. On the contrary, it has the desire to do everything it can to keep things as short as they properly can. It's certainly my personal desire, as I'm sure it is everybody else's. Nobody wants to extend the case unnecessarily by one day. But issues aren't yet identified and they can't be, but the time will come when they can be. And my invitation to the Chamber is, as I set out in the motion that the Chamber and the Prosecution, without in any sense working together other than publicly and in court, can to some degree work together to --

JUDGE MAY: That will probably not be. At some stage, in the way this case goes, the middle of the Bosnian hearing that the issues will become clear, if then.

MR. NICE: It's possible it would be as late as that, but, Your Honour, it's also possible that there will be a sufficient identity of approach in Croatia and Bosnia that it will be earlier than that. But in any event, if we make it plain by our conduct of the Kosovo case that we're not in any sense doing other than move things along as swiftly as possible, and we have the assistance of the Chamber, where appropriate, in ²⁷⁸⁰ clarifying issues with the accused to enable that to happen, and if the Chamber is minded to accept any of the proposals I've made as to abbreviating time, then although we won't know when the trial will end, we will know that it's being dealt with timeously, and that should be enough, because simply to impose an overall time limit at this stage would be to do something that has an element of arbitrariness about it, which might be undesirable and unfair.

So that if I return to the statistics, which I say are very rough --

JUDGE MAY: Yes. I mean, the statistics show - and this is why we have in mind the time limit - the proposal to call over a thousand witnesses. No trial can take place in those circumstances.

MR. NICE: Your Honour --

JUDGE MAY: I know you say that it's merely a list and nothing more, but the fact is that there are over a thousand.

MR. NICE: As I hope I made it plain, it's not my proposal that we should call these. This is a list that shows what witnesses would be required were we to prove all aspects of the case in the entirely conventional way, with every witness coming to Court. We have no expectation or intention of doing that. There is already the substantial reduction from the Bosnian part, and we are confident that arrangements can be made in accordance with the Tribunal's rules and regulations to take some of these witnesses in different methods and some of them not at all.

JUDGE MAY: In the case of Bosnia, there has been a great deal of ²⁷⁸¹ litigation; less so, of course, in Croatia.

MR. NICE: Yes.

JUDGE MAY: But in the case of Bosnia, there's been a great deal of litigation covering many of the issues which you'll be seeking to cover. It would seem to me that you could cover a lot of that by use of transcript evidence and the like --

MR. NICE: Indeed.

JUDGE MAY: -- and thus shorten the matter. It may be that the crucial issue in this case is going to be the connection between the accused and these allegations, and it may be that, certainly in the case of Bosnia and Croatia, that those are the matters which concentration should be centred on.

MR. NICE: We hope that will be the position, and that's why I've been saying throughout that the accused's reaction to Bosnia crime-base evidence may be entirely different from his reaction to Kosovo evidence, where NATO and the insurgency, if it was, of the KLA features in his questioning. So I've simply listed -- this is not a list of witnesses to be called, and we are doing everything we can to take matters shortly. I should say also, Your Honour, that the question of taking judicial notice of findings in other trials is a project that is under active consideration and applies particularly again in relation to Bosnia. So all these mechanisms are in mind and in development. But without a represented accused, we have to initially prepare on the basis that we may have to prove anything and everything, and we hope that by cooperation with the amici and with the assistance, if appropriate and ²⁷⁸² where appropriate, of the Chamber, we will actually be able to bring each of these trials to a proper and safe conclusion within the minimum time that the issues identified by the accused will demand. But we very respectfully suggest that fixing a time limit now would not be appropriate.

JUDGE MAY: Thank you.

[Trial Chamber confers]

JUDGE MAY: We have, during the time which this case has been adjourned over the last three weeks, had occasion to consider the overall conduct of it. It is a case of immense scope and also a case, of course, of great importance. We are charged with the management of it, and during the adjournment we have been considering what is reasonable, in the light of the Statute, for us to order in terms of trial management. Such management is necessary in order that the trial can be brought to an end within a reasonable time. Our duty also under the Statute is to ensure that the trial is fair and expeditious and is conducted with due regard to the rights of the accused and also having in mind the interests of the victims and witnesses. All these are matters which we've had to consider. The interests of justice and the fairness of the trial means, of course, fairness to both sides. It does not mean purely fairness to the accused or to the Prosecution, but to both sides. And we've had to balance these various issues, and the conclusion we've come to is that it is necessary, in order that this trial is conducted in an expeditious fashion, to fix a date for the close of the Prosecution case. We can only do that in order to concentrate minds and to ensure that the matter is ²⁷⁸³ completed fairly.

A trial has also to be conducted with this in mind: that an accused, whether he is represented or not, must be in a position to defend himself against the charges against him, and the longer the Prosecution case goes on, it may be said, the more difficult it is and the more onerous it is for the accused to do so. And in order to ensure a fair trial, we must make sure that an accused is in the position, reasonably, to defend himself against the various charges.

We also have to bear in mind that at the end of a trial, the Trial Chamber has to give a judgement. The longer the trial goes on, the more difficult that is, and if it stretches into a matter of years, it, of course, becomes more difficult still.

These are the matters we have in mind. I should say that we also have in mind that of course it's the duty of the Prosecution to put forward their case, and they must be given reasonable opportunity to do so, and it's not for the Trial Chamber to try and dictate in any arbitrary way how the Prosecution go about proving their case. It's a matter for them to do. But nonetheless, we have decided that, in the interests of justice, we must fix a date.

We've heard the submissions of the Prosecution today, and of course we bear them in mind and we will consider ways in which evidence can be put properly before the Trial Chamber, and expeditiously. But nonetheless, we do not consider it inappropriate to fix a date at this time. We, of course, pay attention to what was said in Galic, but with respect, the decision in this case has to be made at this stage. It may ²⁷⁸⁴ well be that the issues will never be plain until the beginning of the Defence case in the particular circumstances of this case. With all this in mind, we have decided that the Prosecution should have one year from today to conclude their case. That will give them a total of 14 months in which to finish the case, their case. In the view of the Trial Chamber, no Prosecution case should continue for a period longer than that.

I would add this: that of course it is our duty to ensure that the cross-examination is continued within reasonable limits. We shall do that. We shall ensure that unreasonable amount of time is not wasted in cross-examination.

At this stage, we shall not seek to come to any conclusions about the number of witnesses that should be called. It's a matter for the Prosecution. But during the course of discussion, ways in which the scope of this case can properly be brought within a proper range have been suggested, and there are ways which can be pursued. As far as the timetable is concerned, the recesses are known. We will, in fact, adjust slightly the Christmas recess. This part of the indictment should finish, it's to be hoped, within a reasonable time before the recess so that there is time before the next part, but it may be that we can address that conduct in future.

MR. NICE: Yes. Two things: As to the recess, the summer recess, I've set out in a motion how common witnesses, witnesses common to two parts of the trial, could either come at the end of Kosovo or at the beginning of the next section. I gather that the recess is indeed only ²⁷⁸⁵ three weeks in the summer and there's going to be no extended period made available between parts of the case for preparation of the next sector in any event.

JUDGE MAY: If we can finish this part, there will be additional time in July.

MR. NICE: Yes, but if we can't, there will only be the three weeks; there won't be an extended period?

JUDGE MAY: We'll have to see, but --

MR. NICE: I'm not asking for one, obviously.

JUDGE MAY: No, but the date -- how the time between now and next year is arranged, of course, will have to be considered in due course, but it's the final date that we're dealing with.

MR. NICE: That's very helpful. Obviously, we'll work to that. But as to the recess, what I was going to say is that if we reach the stage by then of the witnesses common to two parts, we will simply, if this is satisfactory, use common witnesses up until the end of the period before the recess and then start with common witnesses afterwards, because they provide a useful bridge for parts of the case in any event. The second thing that I would ask, I hope not impertinently, is this: We have the recesses for the summer and for Christmas, next Christmas. The length of the days I'm not sure are necessarily known to us at the moment. Where a Prosecution is under a strict timetable, as this would be, changing the daily timetable, especially if it was reduction of hours, could affect us, in the same way as ill health could affect us. And although I'm not looking forward to any such interruptions ^{2786 BLANK PAGE 2787} - on the contrary, I hope they wouldn't occur - may it be that there could, if appropriate, be extension to take account of that sort of unforeseen event or are they to be built in as an incident of the timetable?

JUDGE MAY: Let us work on the basis that they're built in, but clearly there are matters which may need consideration in due course.

MR. NICE: Thank you very much.

JUDGE MAY: Yes. We will go from there to consider the Defence facilities. Mr. Milosevic, I'm just going to ask the amicus for something about their brief and then it will be your turn. Yes, or indeed any other matters, Mr. Wladimiroff, that you want to raise.

MR. WLADIMIROFF: Thank you, Your Honours. I have only a few observations related to the facilities. Let me start to say that we have seen in the report of the Registrar that the Registrar has taken some pre-observations dealing with the matter before listing out what their views are on each of the facilities we have listed in our brief. Let me deal with these pre-observations very shortly. If you have got it in front of you.

JUDGE MAY: Yes. We have the Registrar's proposals or propositions.

MR. WLADIMIROFF: Thank you. On page 8 and 9 and further on on page 10, you will find three observations by the Registrar claiming that the rights of the accused cannot be unrestricted but restricted by the interest of justice, and on page 9, be subject to the interest of an effectively conducted trial, and thirdly, on page 10, restrictions may be ²⁷⁸⁸ based upon legitimate interest of security.

We do understand these observations, but it seems to us that it follows from Article 20 of the Statute that the rights of the accused can only be restricted as far as required in our Article 22 by the interest of witnesses and -- yes, by witnesses.

So therefore, we believe that if we talk about the rights of the accused and the facilities related to that, it's more or less a matter how to structure his rights in relation to the needs of his defence and not a matter of being restricted by any other observations or any other interest.

Now, you may have noticed that we listed in our brief a number of facilities, on page 4 and 5, and if I may go through the list of the Registrar dealing with our list, I've got a few observations. First of all, as far as the facilities are concerned in the Detention Unit, we take it that by the word "mail," the Registrar is also including e-mail, more specifically is referring to e-mail. The Registrar makes an observation saying that there will be no facility for mails or fax during the weekends. We suggest that that is a matter for consideration, that the accused should also have that facility during the weekends, taking into account that most working days he is in court. So that would cripple him for the Mondays if he had no opportunity to use these facilities the days before the first working day of the next week. Next one, telephone. We are satisfied by the observations of the Registrar, though we suggest that the time restraint which can be expanded on request of the accused from 6.00 up to 8.00 should also be allowed ²⁷⁸⁹ during the weekends and, even better, perhaps to 10.00 in the evenings. As far as visits are concerned, that seems satisfactory as well except for the restriction on the weekends. It does not make sense to us that there is a full restriction for the weekends for those who are assisting Mr. Milosevic and that according to rules as explained by the Registrar, the weekends are only available to family members or friends. I think it's a matter for the accused to decide what he prefers, people to visit him on the weekends to be family members or those who help him out in his case. It's not matter for the Registrar, we feel. So that's a matter for consideration as well.

The time limit for visits in the detention centre is 16.45. So that seems not to be relevant for working days, or it may be extended for legal advisors to 8.00 in the evening. We suggest that should be extended to 9.00 in the evenings.

As far as photocopying facilities, it seems satisfactory what has been observed by the Registrar, though it is limited to 8.00 -- sorry, to 6.00. Keeping in mind that he will return after 6.00, it seems reasonable to extend that time limit to 10.00 in the evening. Last but not least, the VCR facilities, which are fine, and the laptop facilities, which we feel is also quite sufficient. Then dealing with the facilities in court, the telephone facilities, if available -- we heard the accused about it not being available all day, but I take it that if that was an incident that telephone facilities are available and working on all days, that's fine for us. There's only one issue here. He is allowed to make telephone ²⁷⁹⁰ calls during the breaks and before the hearings, not after. It seems to me it's either to extend the facility of having access to the telephone in the Detention Unit or to extend it here. It's either in the court or there, but he should have a proper opportunity to evaluate what happens that day with the purpose to prepare for the next day. If I now speak about the fax facility. That seems reasonable to us. We have no comment here. And that goes also for photocopying. The Registrar is pointing out that the photocopying should only be allowed on an exceptional basis. We feel that is not right. It should be where needed, and that is, I think, a better test than to review whether there's an exception or not.

Now, after having dealt with that, I think I should also say something about the propositions for further defence facilities. We are satisfied with these proposals. It seems fair enough to have two persons who are qualified, as set out by the Registrar, to assist the accused on a more regular basis. Again, here I stress that if these facilities are limited to communications during working days and not during the weekends, that might be an unnecessary handicap. So I draw your attention again to my observations in terms of time limits and day limits.

We are satisfied with the proposal that these advisors should -- should be persons who are within Rule 44, the requirements of Rule 44 of the Rules of Procedure and Evidence. And we are also satisfied that these people are bound by the code of ethics.

If I now deal with a more difficult issue, that is what the ²⁷⁹¹ accused asked about the right to disclose materials to third parties or his associates, but before I do that perhaps I would stop here because that's more beyond the facilities that I have discussed so far.

JUDGE MAY: Do you have any general submissions before we hear from the accused about that?

MR. WLADIMIROFF: Yes. Let me then deal with that matter, Your Honour.

It seems to us consistent to make a distinction between confidential materials and let me phrase it as "regular materials." If I'm right in thinking that regular materials, as I label them, are materials that are or shall be in the public domain, then it seems to us that there should not be any restriction on communications with the advisors of the accused in that area.

So the issue is what to do with confidential matters. It seems to us if the advisors are those who fall within the restrictions of Rule 44 and they are bound by the code of ethics, it seems all right to us that the accused will be allowed under these conditions to communicate with his assistants to enable the assistants to do what they should do, that is, to assist him also in these matters.

So far, there is no evidence known to the amici that shows that such kind of communications would be asking for trouble, so to say. We have heard a lot in this courtroom about events that are or may sound troublesome, but at the end of the day, the amici, reviewing that, did not find any evidence that that is for the accused to blame. So we believe there is no precedent here to limit him in any way as long as he is ²⁷⁹² communicating with these advisors who fall under Rule 44 and who are known by name, as set out in the proposal of the Registrar. The consequence of it would be that your rulings on witness protection need not to be changed because it's already within your orders that such communications aren't forbidden as long as they're not with those who are within the rules, that is, appointed advisors by name who act as an advisor though not as an attorney in court, because they are under Rule 44 and therefore bound by the code and the Rules. So we believe that would be a workable basis. From there, we advise the Court to follow that pattern.

JUDGE MAY: Thank you. Mr. Milosevic, before you make your general submissions, your request, as we understand it, is that witness statements, summaries, and other materials, including exhibits, be handed to associates of yours in order that you can prepare your defence. Now, you can perhaps clarify that. And you've heard what the amicus has suggested as a way forward dealing with confidential materials, and also at the suggestion of the Registry that it may be possible to make an order along those lines, although there is a problem, as you'll appreciate, with the confidential material.

Now, would you like to address us on that?

THE ACCUSED: [Interpretation] May I be given an opportunity first to comment on the one-and-a-half-hour-long speech of the opposite party before I say anything about this other issue that you have raised?

JUDGE MAY: We made a ruling on that, but you can make a comment.

THE ACCUSED: [Interpretation] I am not entering into whether you ²⁷⁹³ have made a ruling or not. You are doing what you will anyway. But I think that for the benefit of the public, it is necessary for me to comment on what we have heard from the other side. First of all, I underlined several times here, and I wish to do it once again, that what was set out at the beginning as to me allegedly participating in the proceedings is not true, because I do not recognise this Tribunal. And I have said several times that I will avail myself of every opportunity to speak in the interest of the truth, and I do so regardless of whether it is an opportunity you are giving me, when the time for the cross-examination comes, or on occasions such as this one when you're giving me a chance to make a comment. But generally speaking, all that we've heard over the hour and a half has only one single value to it, and that is that the public as a whole and professionals in the public will be able to learn about an innovative recipe as to how to push forward a false indictment at all costs, how to pretend, to set up a fake trial and to organise a trial without a trial, to make something more nonsensical than it already is. Namely, I understand what we have heard as an effort for one side working for the other side what it considers to be in the interest of the other side but also to take upon itself the competencies of the Trial Chamber. I'm not surprised that they wish to do that, because this false Prosecution must try and reduce the fiasco of the false witnesses they are producing, and that is why, among others, instead of witnesses, we have lately been hearing certain quasi-scientific reports. I think it is absolutely unacceptable that they should request ²⁷⁹⁴ that any binders of theirs should have any value. They could not have any such value before any legal tribunal.

JUDGE MAY: I should have said that you're entitled to address us on the binders since we're considering the admissibility. So if you want to address us on that, do.

THE ACCUSED: [Interpretation] Secondly, this question of so-called comprehensive witnesses or overlapping witnesses and using investigators working for the Prosecution as witnesses is nonsense, because it emerges that the investigators who are working for the OTP are placed in the position of judges to assess what is relevant and what is not relevant in the witness statements.

And then this question of summaries of witness statements, which is being encouraged only because in summaries it is possible to delete everything that stands in the way of the other side for the cross-examination, and we have already seen many examples of contradictions between the prior statements given by witnesses and their statements here and the cross-examination.

So this is an offensive of that side over there to belittle and make up for the obvious problems they are confronted with. How can an investigator be a witness? If somebody is working for one party, they can provide the results of their work to that party, and that party cannot use them as a witness when he was not there. He has nothing to testify about. He only can interpret what is written in the indictment only in different words based on alleged statements that he heard from those who allegedly took part and were present when something ²⁷⁹⁵ occurred.

I think that this is to such a degree an absurd idea that no normal or legitimate court would accept it. They even mentioned, for instance - let me just use an example - that forensic reports can be provided without identifying the victims. What do such reports mean unless the victims are identified?

I can understand if, for instance, one were to identify all the terrorists that were killed in Racak and we were to establish that they were not inhabitants of Racak but terrorists coming from other places, and so on, but I don't think that any legal court could accept that. So I'm saying this not because I insist on you accepting something or not, because that is up to you, and this is illegal anyway; I'm just drawing attention to the absurdness of the requests made here, unfortunately in public.

So the gist of it, the contents of the false indictment and false witnesses, should be exposed to the public as little as possible, because in that case, it will be less exposed to verification of the truth, and then, on that basis, all kinds of fabrications can be produced. So what is being suggested is actually the use of propaganda methods, to pack elements and so-called witnesses in the way that media reports are written. They say somebody said something, somebody else something else, such-and-such thing happened. This is all packaged up: This happened, and here you are. All you have to do is accept it. So a way is being looked for for these witnesses who have proven to be vulnerable, to be made unvulnerable [sic], to be reduced to ²⁷⁹⁶ summaries, and instead of them, certain investigators to be put forward, for the investigators to judge, as if they were judges, what is relevant and what is irrelevant, and then to build this whole tower of cards on the basis of these so-called comprehensive witnesses. So I think those who are working for the OTP cannot represent their information as testimony. They can only produce their findings to those for whom they work, and it is up to them to make the selection. So I think for a regular court, no witness that does not appear in person can be taken into consideration, and a witness who does appear to testify must have his complete original statement to be used as a basis for the cross-examination and he must appear in court.

Secondly, I know that you have made a ruling before, and I'm not questioning that. That is up to you anyway. You have already made a ruling about Rule 92 bis that the Prosecution is returning to again in the same way that it discussed it before you made your ruling. So I think that this is highly transparent, I would say, in the justification of saving time and money, but in fact, to make construction as to assert a false indictment, and to make invulnerable vulnerable witnesses, and to fake a Tribunal and a trial.

As for this second matter, it can be reduced to several points, this matter that Mr. Wladimiroff spoke about. First of all, you put on the agenda, as far as I know, the facilities for the accused - that is, myself - with respect to defence, and those facilities are next to none. Allow me to say again: I'm not asking you for anything. I am just noting, for the benefit of the public, that the right to defence, which ²⁷⁹⁷ you yourself have proclaimed, is, on the other hand, by your conduct, physically made impossible.

Today is I don't know what date. The 10th of April, I assume. So two months ago the trial started, and I still cannot communicate with my associates. Here is Mr. Tomanovic sitting behind the glass partition here. In the last few weeks he has been able to visit me for 45 minutes, and in the presence of representatives of the Tribunal. That is all the possibilities I have in terms of communication with my associates, that I have had so far.

Therefore, it would be logical, even though it is a tactic to keep me isolated, that is, for the OTP to engage in the machinations I have just described, and despite that, I am kept in total isolation. Obviously, this cannot be remedied by cosmetic measures such as are being offered, but it would be logical for me to be able to freely communicate with my associates, to be able to freely communicate in terms of telephone, faxes, et cetera, and also to have the necessary time to do that. Because you can say that I have the right to I don't know how many associates - one hundred - but if you don't give me the necessary time to see them, they are of no use to me, because it is physically not possible to see them nor to talk to them.

JUDGE MAY: The associates -- two of the associates are the gentleman you mentioned, Mr. Tomanovic, and Mr. Ognjanovic; is that right?

THE ACCUSED: [Interpretation] Those are my associates, which are present here and with whom I do communicate. ²⁷⁹⁸ You asked me: What about the documents? As things stand now -- because somebody has to get information for me about your witnesses, whose statements I am given, because I certainly don't have that information at hand. So now I am being told that these original witness statements, I have to read them to them on the telephone, on a public call phone in the Detention Unit corridor, for them to prepare some information for me relative to those witnesses, and then for them to find some sort of way of passing on to me that information. For instance, some information that was sent to me on Friday I couldn't receive before Monday because there was no one there. Either it's being checked out or reviewed or supervised, et cetera.

So for me, it is plain that if I have associates, they need to be able to communicate with me in the breaks, in the Detention Unit, for them to get the documents that are given to me so that I don't have to call them on the phone and dictate them to them, but that they can pick them up directly when collecting information and data about them. Then, in the course of cross-examination, how do you imagine cross-examination to go on from 9.00 to 5.00 and then for me to meet with my associates, to collect information, to read what is given to me, to review it during the night, and then to start working again at 9.00 a.m.? So if you don't give me the time, half the working day, then that is nowhere near the principle of the equality of arms. Because the two sides here are supposed to be exchanging arguments. Then both sides have time to prepare, rather than one side having a hundred per cent of the time and the other side none at all. So that the question of time and the working ²⁷⁹⁹ hours during the day that the other side is suggesting, with absolutely inappropriate allusions as to conditions of health, I think is a factor of great significance as to the facilities given or not. Therefore, the question of communications, associates, and time, all these are things that each of you are able to organise according to your own criteria, including sleeping, feeding, and all other vital needs, like taking some fresh air, and so on.

So as not to take up any more time - I don't need several hours, as the other side seems to need - I'm not asking for anything. I simply wish to underline that your proclaimed right to defence, which you have constituted as a right, has absolutely been -- I have been absolutely deprived of it by physical means. And that is all.

JUDGE MAY: Mr. Milosevic, anybody who has heard you cross-examine would realise that you've been in receipt of material. But we'll consider your application and we'll make a ruling on it.

Mr. Kay or Mr. Wladimiroff, I haven't given you the opportunity to address us on the binders. I don't know if you have any submissions.

MR. KAY: Yes. We were waiting for that. The accused's position on this matter is plainly clear from the argument that he's just presented to the Court. One of the problems that seemed to us to be apparent from this is: It's very difficult for anyone listening to the Prosecution to be aware quite what weight the Trial Chamber should give to such evidence. It seemed that it wasn't being used to prove offences, it wasn't being used to the fullest extent that evidence is sought to be produced in Court, but was to be used as background evidence that the ²⁸⁰⁰ Prosecutor was saying would be helpful to the Trial Chamber. That may well be the case, but it's very unclear then as to the rights of the accused against such background evidence, and it's very unclear to us as to how, on the Prosecution's argument, the Court itself should apply that evidence and what standards should be applied.

We appreciate that this is part of their proposal to speed up proceedings and to put the full extent of their case, as they say it is, before the Court, but this is not material that's been taken in an investigative system under juge d'instruction or similar judicial control by the Trial Chamber itself. It's merely outside that. It's the evidence of investigators who have spoken to witnesses, who thereby report what those witnesses have said, without any examination of the background of the witnesses or of the incidents themselves. In those circumstances, again, it's very difficult to know what exactly the Trial Chamber should make of it.

This is a case perhaps that needs to have more focus on the indictment itself rather than seeking to go down every alleyway and byway of Kosovo and elsewhere in Yugoslavia. One is very conscious of the allegations within the indictment, and that's where the focus of the case should be, to be fair to the accused himself. He should perhaps be hearing more evidence based upon the indictment that's been brought against him and the issues concerning his responsibility rather than these other issues. It seems to us that the Prosecution are looking at incidents rather than perhaps focusing on events and thereafter transferring their attention to the indictment itself. ²⁸⁰¹ The binders, in many respects, highlight this problem, because at the end of the day, if the binder goes in to the extent that the Prosecutor wants, it may be from their perspective a full analysis of what happened, but in a way, perhaps such a detailed analysis is not needed in relation to the indictment against this accused, and all it does is occupy his time in having to deal with those issues that are not meaningful to him. And we can see, as we all know, that time is of concern to all the parties within this case. The Trial Chamber has imposed a time limit today, quite how, in the Prosecution structure or timetable that they put before the Trial Chamber today, how much time would be taken up by those crime-base witnesses recording particular and specific incidents or events.

So in relation to the binders, we follow what the accused has put before the Court, but if the Court is to go down any route that would enable them to be accepted as evidence before the Court, it's difficult to see how it can be separated in some form from background to not becoming evidence, that the Trial Chamber has to express precisely what is meant by the use of that material so that those dealing with it will be aware of the risk and issues at stake.

JUDGE MAY: Things like the exhumation report, and reports and documents of that kind, photographs, all that sort of thing, we've tended to admit in the past as being in a rather different category to witness statements.

MR. KAY: Yes. One could see that material evidence, evidence that has been produced for the investigation, that reflects specific ²⁸⁰² aspects of the investigation, photographs and whatsoever, may well be produced in that form, and has been produced in virtually all the cases before this Tribunal and the other Tribunal dealing with Rwanda. If issues arise concerning such photographs and such material that seeks to establish a particular point in relation to authenticity, veracity of the particular body or subject that's being photographed, that's an issue that can thereafter be opened up and there be an examination of it specifically before the Court on the evidence, and we would foresee that that is a way of dealing with issues such as that. But the main problem, and it seems to us the main problem that the accused would face, is of those reports to the investigators by other people, which are classically hearsay and may be third-, fourth-, fifth-hand hearsay in relation to some of the material that would thereby be produced. In many respects, the need for those witnesses is really open to question, but it's for the Prosecutor to consider the presentation of the case. It's their responsibility and it's for them to make the decisions relevant to that process.

JUDGE MAY: Thank you, Mr. Kay. Mr. Nice, we've really overrun our time. We were supposed to have adjourned at half past 3.00. But briefly, if you could respond on one particular issue, which is the handing over of the statements to associates. Is there anything you want to say about that?

MR. NICE: Yes, and a couple of sentences, if I may, in answer to Mr. Kay.

JUDGE MAY: Yes.

MR. NICE: Handing over to associates, unless qualified lawyers ²⁸⁰³ recognising the Tribunal, simply should not be allowed. We have to protect these witnesses. There is a perfectly full regime whereby the represented accused can have access to material that is otherwise highly confidential and exposes witnesses to very great risk. It is wholly unacceptable to the Office of the Prosecutor that its statements should be handed over other than in a controlled regime.

We have to remind the Chamber of the various publications that have been made. I have one that I suspect is with the Registry or with the Chamber already, coming from the association that represents this accused out of Court, from Danas [phoen], of the 2nd of March. I'll hand it in again. In fact, information provided from a functionary of his political party, the SPS, although it doesn't say it in the short translation that accompanies it, where the unnamed official of the association says:

"We know who the protected witnesses are. In the case of Albanian women who claimed they have been raped, we won't disclose any details because neither President Milosevic nor we wish to abuse their misfortune. When KLA commanders appear as witnesses, only then will we have a chance to show all that we have found out." It would be wholly wrong for any special provision to be made to the associates of this accused to accommodate the fact that he and they choose not to recognise this Tribunal. Provision in the ordinary course to people who have codes of conduct controlling their behaviour, yes; otherwise, in our respectful submission, definitely no. May I make two points in relation to what Mr. Kay said, because ²⁸⁰⁴ it's on the binder, and if I may be permitted. First, I don't quite understand what he says about the Prosecution not being focused. All the evidence that's been brought has been exactly on the crime-base matters that we have to prove. We don't have any choice in that. As to the value to be placed on material of a summarising nature, I've made my position clear, and for the avoidance of any doubt, I repeat: Its evidential value on the positive side would be slight, although I'm not suggesting it would be nonexistent. Its real value is elsewhere as a check and to avoid that most undesirable of outcomes, which could be that this Chamber's decisions could be criticised as a leap of faith from over-selective material to which the scale of the case would otherwise compel us. We simply are concerned that those criticisms can be avoided by the Chamber being properly seized of knowledge of all the material.

Your Honour, I have a couple of other administrative matters of information to give. That's all. Can I do that now?

JUDGE MAY: As long as it's quick.

MR. NICE: One, we are submitting a motion for the extension of the limit of the pre-trial brief. This arises again from the desire to achieve uniformity with the other cases. We've gone, you may recall, for a hundred-page limit, I think, initially. The Plavsic/Krajisnik case, which is closely associated and for which there must be common elements, has made an application for a much longer brief, and I'm not minded to be compelled to the shorter form. If we are to have passages that are exactly common to both cases, we are making an application to extend, and ²⁸⁰⁵ I hope that will be understood in that history. Our general policy has always been for brevity, but it will be impossible to achieve parallel approaches if we're having to use entirely difference periods of time. Second, we are encountering difficulties as a result of resources here within the Tribunal generally, partly from budgetary matters and so on, with the provision of materials on the due date, the 30th of April. We are publishing a report on that, together with a proposal that this is a matter that might be dealt with by your legal officer on a continuing basis under 65 ter, whatever it is. But that report's coming your way. It's available at the moment but I shan't weary you at the moment. It's in the form of a memorandum that's going to come as a motion, unless you want to see it as a memorandum this afternoon, but those applications will be before you.

JUDGE MAY: Very well.

JUDGE KWON: Well, I think this is the last chance for me or the Chamber to clarify - not to you, Mr. Nice; it's to Mr. Milosevic - clarify the position of the accused.

I understand that it is of your own decision not to be represented by counsel, and it was decided before I arrived here, but in my opinion, to recognise the Tribunal is one thing and to have counsel is another matter. I have heard that you have been speaking in the interest of truth, and why not having an attorney, or counsel, or legal advisor named by you in the interest of truth? Could you address it later on?

THE ACCUSED: [Interpretation] I can give you an answer straight away. Would you like me to give you an answer straight away? ²⁸⁰⁶

JUDGE KWON: Yes, please.

THE ACCUSED: [Interpretation] I cannot appoint a lawyer, an attorney for myself, in front of an institution that I don't recognise. I think you are not a legitimate court, and you are well aware of that because you're all experts in international law. And the sole thing that this Tribunal has is the force of might, of those who appointed it, not international law or international right, domestic, continental, Anglo-Saxon, or whatever.

JUDGE MAY: Mr. Wladimiroff?

MR. WLADIMIROFF: May I address the Court after the break on this issue?

JUDGE MAY: Well, it will have to be before the break because we've got to hear another case.

MR. WLADIMIROFF: Yes. It's a very short one, Your Honours. Picking up what has been said, also in the view of the amici, there is a difference between a counsel and a counsel with the, let me phrase it, right of audience.

In our view, it would be possible for the accused to appoint counsel who assists him in this case, that counsel being recognised by the Registrar as counsel under Article 44, though without instructions of the accused to represent him in court. Therefore, at least totally aside whether the accused recognises the court or not, it is irrelevant for counsel as well because he will not represent the accused in court. Some people might say, "I don't know whether that's a right description that the accused is waiving the right of his counsel to ²⁸⁰⁷ address the court," but effectively he is pointing to counsel it's a matter for him, not for the Court. The only matter for the Court is, at least for the Registry is, to accept or recognise that counsel. And as long as that counsel is not instructed by the accused to represent him in court, that could not be understood as an expression of the accused of recognition of the court, and the matter of the Registrar to recognise that counsel is not a matter that affects the accused's position of not recognising the Court.

So in our view, it would be possible to have the accused and these two lawyers, who are lawyers under Rule 44, to be appointed by him, to be recognised by the Registrar. That would allow a communication between these two lawyers and the accused which is a client-privileged relation. That will solve a lot of issues. And these two lawyers are under the Rules of the Tribunal. They are subject to contempt of court and the code of ethics. As far as disciplinary matters, not yet under the Tribunal, under the Rules of the Tribunal, but under their domestic rules. One of the amici is well in the position to judge that, what would be appropriate if there was any breach.

So in our view, it would be feasible as long as we did not, let's say, focus on the wrong issue and that is by his choice to appoint counsel and by recognition of that choice had nothing to do with recognition of the Tribunal. That's all I want to say.

JUDGE MAY: Thank you. The accused will have heard what you've said. We will adjourn now for as short a time as possible. I'll ask the Registrar how long it's going to take. ^{2808 BLANK PAGE 2809} Very well. We'll adjourn for 20 minutes when we will reconvene for the other case. This case is adjourned until half past nine tomorrow morning

--- Whereupon the hearing adjourned at 3.55 p.m., to be reconvened on Thursday, the 11th day

of April, 2002, at 9.30 a.m.