Milosevic Transcript 2003-07-30

²⁵⁰⁹⁷

Wednesday, 30 July 2003

[Open session]

[Accused not present in court]

--- Upon commencing at 9.18 a.m.

JUDGE MAY: Mr. Nice, the accused is not here today. We have had as yet no formal medical report from the Detention Unit, but apparently he is suffering from problems connected with blood pressure which will mean that he will not be able to attend this week, and accordingly, we shall today adjourn for the recess. But if there are any administrative matters which we can properly deal with in his absence, we will.

MR. NICE: I'm grateful for the opportunity to address the Chamber before the recess. It does seem to me it will be helpful and potentially saving of time and efficient for me to identify a number of issues and to tell you where we are.

I will attempt to address you in the most straightforward English so that the accused can read the transcript and follow without any potential for confusion what I say.

First, in conformity -- that's a long word. First, as ever, I try to be totally transparent about where we are and to ensure that the Court knows what is on the menu of evidence. It seems to me that not only is it always desirable for Judges to know what is coming but they are entitled to know what is coming, and in this Tribunal because of your powers to deal with Prosecution and other evidence, it's really essential that you should know what is coming.

With that in mind, I have, as you know, prepared or had prepared ²⁵⁰⁹⁸ witness lists. The very latest version is being printed at the moment and perhaps it will be with us before I finish, and I'll, if I may, just explain it to you in ways that will be readily understood on the transcript when it's to hand. Sufficient to say at this stage that if one takes as inevitable that we shall call the witnesses listed for this last week and some of the witnesses as to crimes who we'd already planned for the first week after the recess, and if one adds to that a necessary minimum of evidence for Sarajevo and Srebrenica, then the remaining time for other evidence is inevitably restricted. With that in mind and in order that the accused should be in a position to prepare in the most efficient way, I have with my colleagues identified what we believe are the first and the most important -- I was going to say 20 witnesses. In fact, we've got up to 16 because we've got further decisions to make that we were going to make by Friday, but they will be identified on the list, certainly 16 and by the end of the probably week 20 witnesses who will be the first 20 witnesses additional to those for this week and the first week in August/September that we will want to call additional to those for Sarajevo and Srebrenica, and we hope this is going to be helpful. We're not in any sense restricting ourselves to 20 witnesses of that category, but if we focus on those, then everybody's efforts can be well directed. Can I alert the Chamber to the position as to two particular witnesses. There is a witness, and I would seek leave to name him in private session, and you'll then possibly understand why, but to do no more than give his name in private session. There is a witness who is willing to be a witness but who does not wish to be called specifically as ²⁵⁰⁹⁹ a Prosecution witness, and if called by the Prosecution does not wish in any way to have contact with the Prosecution before giving evidence and wishes simply to be called to the witness stand, it being his position that he should be cross-examined by all three parties but that he would rather come in that way to the Trial Chamber. Alternatively that he could be called by the Trial Chamber.

I suspect he would have no objection to my naming him, but since the letter was only received last night, I would with your leave just mention his name in private session and then that will be available immediately to the accused when he receives the transcript.

[Private session]

[redacted]

[Open session]

THE REGISTRAR: We're in open.

MR. NICE: And, Your Honour, it may be again once I've checked matters that the correspondence will be capable of being laid before the Chamber and in copy form before the accused and the amici, and I'll try and have that done by the end of the week.

JUDGE MAY: Will that be a suitable way to proceed?

MR. NICE: In addition to that witness, there's one of the Rule 70 witnesses in respect of whom we are optimistic. That will require ²⁵¹⁰⁰ consideration of detailed application. We can't say precisely when we'll be able to get that application to you. It's pretty clear now it won't be before the end of this week. It may come in the course of the three-week recess, but if it doesn't, we'll have to deal with it as soon as we possibly can after the recess. I'll identify where that witness is on the witness list when we have the lists as printed.

I mentioned earlier last week, I think, that to reflect the recent Rule change, the Chamber might be assisted or, rather, to reflect the spirit rather than the letter of the recent Rule change, the Chamber might be assisted by maps that revealed where the Prosecution believes it is in relation to the proof of crimes.

I don't know if you've yet seen the map produced in respect of Croatia. I can explain it to you. Something similar but not identical is coming in respect of Bosnia.

If the Court would be good enough to look at the legend at the foot on the left-hand side, status of the crime base evidence. Green is to reflect somewhere where all Prosecution evidence forecast has been presented in respect of a particular topic, yellow where partial or part of the Prosecution evidence in relation to a particular topic has been presented, red where no Prosecution evidence in relation to a particular topic has been presented.

The legend on the left, so far as Croatia says, in the middle of the page says, blue circles relate to detention camps, and red to killing sites so that looking at the right-hand side of the plan, for example, at Borovo Selo, Lovas, you will see that there are sites that obviously in ²⁵¹⁰¹ the indictment are said to be both detention and killing sites. Taking as an example, Erdut on the right and a little further up from Vukovar and Borovo Selo, you will see red, green, yellow references. The reference numbers are to paragraphs in the indictment so that what that constitutes is that you'll find a killing site relating to Erdut at paragraph 53 for which no Prosecution evidence has thus far been presented. You will find paragraphs 56 and 57 are -- relate to Erdut -- I'm sorry, I can't say at the moment whether they're killing sites or detention camps, but it matters not for the time being, but in respect of which all the evidence we hope to present has been presented. Paragraph 58 again relates to Erdut but is a killing site or detention camp in respect of which only part of the evidence has thus far been presented. Of course a map like this is subject to errors and omissions, but in light of the powers of the Chamber to deal with the amount of evidence to be called in respect of crimes and at short notice, it seemed to us this might be a useful tool for you to have to know where we believe we are. A similar map is forthcoming for Bosnia. Ms. Wee who was preparing it last night is, unfortunately, sick today, and it won't be available today. It will be available within the next few hours, and I hope they're useful to the Chamber. If not to the Chamber, they'll be useful to us, but that's what they show.

JUDGE KWON: How about Kosovo?

MR. NICE: Well, Kosovo, we haven't done such a map because there is no present intention to prove any -- to call any more evidence in relation to Kosovo. Therefore, your powers are, as it were, to no effect ²⁵¹⁰² in relation to Kosovo.

If you find this a useful visual aid, I will ensure that a similar document is prepared for Kosovo.

JUDGE KWON: I think so.

MR. NICE: Very well. I'll do my best to have that done. The Chamber won't know, but the Kosovo team has inevitably been somewhat reduced and redirected in favour of Milutinovic, Ojdanic, Sainovic as a case and also its leader is at the moment on sick leave but will return, I hope, in a week or so, but there may be some time that will be taken before I can deal with that but I will provide it. Your Honour, the next problem that I want to just touch on is disclosure, and particularly in relation to Srebrenica and Sarajevo. Where one is dealing with allegations concerning such crimes, it is inevitable that there will be a large amount of material to disclose. There is no alternative to that. Where there have been very substantial trials in relation to those particular locations, there is inevitably even more material and there's nothing we can do about it. Mr. Saxon with whom you are familiar and who has throughout this case taken responsibility under my direction on all matters of disclosure and who has done an a extraordinary amount of work and applied great intelligence in my respectful submission to the task has been finding new ways to assist the accused and the amici with handling the material that we regarded as our duty to make available or disclose and indeed we only recently turned to the reality that Defence exhibits in these cases or material in this cases that was available but not used by either side is ²⁵¹⁰³ material that may have to be reviewed or available to the accused and the amici to review, and you will find in an addendum to the latest Rule 68 disclosure report an account of what we are planning to do, and it seems to us and I think that the amici accept this and the accused and I think his associates accept this, that where there is simply an unavoidably a large amount, a very large amount of material that may contain exculpatory material, the preferred course must be to make the material available electronically wherever possible with search engines that the parties can use to find what they will want in relation to particular topics. And I understand there to be no objection to that course. I understand it to be desired certainly by the amici and I think by the accused's associates, and that's what we're doing with Srebrenica and Sarajevo. And the Court will recall that at an early stage I invited the accused and the amici to put back delving into the material of those two occasions until a slightly later stage, aware of the need for us to find a way of marshalling the material and limiting it and aware of the possibilities that things might change if there was no additional time for the presentation of our case. Now that there has been additional time and now we have been able to identify a very focused bank of witnesses for those two locations, we've also been able to identify material to disclose and to find methods of making it, we hope, accessible. Two other points. First, can I identify an issue we may want to argue or discuss at the beginning of September. It relates to two types of witnesses, and in the case of each of this type of witness, my application is going to be that there should be scope for them to be ²⁵¹⁰⁴ examined rather more broadly than in the absolutely conventional common law way. In particular, the application will be that these are witnesses for whom the narrow rules of non-leading questions in direct evidence should not apply.

To assist in that, we will have prepared a paper on the practice as to leading and non-leading questions and examination of one's own witnesses.

JUDGE MAY: We are not bound by those rules as you know. If there is a particular problem, it seems to me we'll be able to deal with it.

MR. NICE: Well, can I then simply identify the two categories of witnesses --

JUDGE MAY: Yes.

MR. NICE: -- without necessarily giving any names and that will help the parties think about it. It seems to me, as I've said on many occasions, that witnesses who may be particularly close to events and/or to the accused who can give evidence -- who could -- a witness capable of telling the truth but who may, in the judgement of the Prosecution, only be truthful in part are witnesses who would be appropriate in many cases to call but, nevertheless, to be vulnerable or subject to a more searching type of examination than that which reflects complete acceptance of what may fall from their mouths.

Now, that's a practice that is has happened in this Tribunal in other cases on a regular basis, particularly, I believe, by Ms. Korner in front of His Honour Judge Agius with witnesses of a broadly similar type, but it seems to us appropriate for some of the remaining witnesses ²⁵¹⁰⁵ particularly if we are to call witnesses and we haven't made a decision about this, but if we are to call witnesses to prove the factual content of the books they wrote where that factual content may be very valuable but where expectation or forecast would be that the witnesses might say other things which would be material we could not accept. And this is quite a significant problem given how we judge the potential value of some of the contents of some of these books to be to the Chamber, because in many cases it's very difficult for people to write factual things that are absolutely accurate if they're going to be testable. So there it is. The second category of witness from whom we may draw, on which we may draw, witnesses to assist you, are those in the category similar to the witness whose name I gave in private session. International witnesses of one kind or another. These are witnesses frequently who have views, opinions about events arising from close dealings with all the parties, including the accused. Now, their views may, of course, be right or they may be partly right or they may be wrong, but there comes a time in a case like this where it may be the view of the Prosecution that really you should be seeing some of these people. We, of course, have the advantage of being able to talk to them in a casual, relaxed way and can realise how much they can probably add texture to the evidence and add depth to one's understanding of the case without unnecessarily accepting every word that they say. We can learn, we sometimes think, so much in an hour or an hour and half's encounter and be frustrated at our inability to present this in the same sort of way to the Chamber.

Now, such witnesses, of course, would never be the subject of any ²⁵¹⁰⁶ hostility in cross-examination even assuming cross-examination is ever hostile in character, but nevertheless would be witnesses whom one would want to be able to test if and insofar as their opinions didn't necessarily marry with the case being presented by the Prosecution. And calling such witnesses is something that one would probably feel absolutely obliged to do if they have opinions of value in any case where time was unlimited, but there are witnesses whom we cannot be sure will necessarily be called by the accused or necessarily even be available to him. So we may decide if there is time that such witnesses are witnesses we would want you to hear from but on the basis that we could examine them rather more -- in a rather broad way than simple witnesses of fact. The last point to make before inviting you to review the witness list --

JUDGE KWON: Before you go further --

MR. NICE: Question.

JUDGE KWON: -- I didn't follow your first suggestion in relation to the first category of witness. What did you mean by searching time -- searching type examination?

MR. NICE: Cross-examination. And so far, let's be blunt, we've had one or two witnesses -- about three who are close to the accused who have given evidence that we adopt and we've made it clear that we don't adopt the balance and we haven't sought to cross-examination although, of course re-examination will have pointed out areas where we have concerns. Those are witness whom we could forecast we could deal with in that way. The next category of witnesses may be witnesses who, in our judgement, it ²⁵¹⁰⁷ ^{BLANK PAGE} ²⁵¹⁰⁸ will be necessary for us to be able to cross-examine perhaps at an earlier stage.

The next general topic before looking at the witness list relates to the documents ordered to be produced by the government of Serbia and Montenegro. We're aware, of course, of their procedural steps that have been taken and notified to us. Obviously we will be assisted by the earliest possible receipt of such documentation if documentation is to be made available to us, and its consideration which will take some time may inevitably lead us to give reconsideration to parts of our case, one way or another. I don't for one second expect the material in any sense to be wholly adverse to the accused. I expect it to be material that will add to our understanding of the history and of the accused. So two points that arise from this. One, obviously the earlier we can have a result on that -- conclusion on that the better. But second, there is at least this as a possibility we are mulling over: If that material gives rise to the need to use some of our time either to produce it or to produce witnesses who relate to it, and if it would not be possible for us to get that all sorted out in time for the end of the Prosecution's case which as I understand it is roughly timed now, subject to further ill health, to fall the end of November, beginning of December, we might apply to the Chamber to allow us to take, say, a week of our time and use it at a later stage in the hearings generally when we're in a position to have marshalled and to have dealt with that additional material. We are not seeking any additional time. We are raising as a possibility in advance that we might voluntarily end short in order to ²⁵¹⁰⁹ keep back some time for later use to deal with that material. That course, let it be said, would be one that might find favour if but for doing something like that and in light of perhaps further indisposition of the accused the allotted days would take us beyond Christmas, which I'm sure nobody wants to do if at all avoidable. But still, that's -- that's looking ahead, but since these are thoughts that are in our mind it may help you to know.

Can we look at the witness list just so I can make sure that it's as helpful as it can be.

I think Your Honours will find probably it's in the same three parts, and I haven't even -- this is all quite new to me. If we go to page 17 of 17, you and I will be seeing for the first time the results of our latest labours in statistical terms, and assuming that we're right in the statistics and these are automatically calculated by the computers, of course, you will see that we are still planning that the witnesses on our list would take 56 days. 92 bis witnesses for Croatia, and that is why this document may be helpful, the remaining evidence that isn't already green on the map or greened on the map would take 4.375 days. The remaining days for 92 bis witnesses for Bosnia, map forthcoming, would take 22 plus days, leading to a total --

JUDGE ROBINSON: All things being equal, Mr. Nice, where will that take us in terms of a day and a month by your calculation?

MR. NICE: This would take us way beyond the time allotted, so what this reveals is as follows: If Your Honour looks -- what we would like to call would take 83 days. We don't have 83 days. Therefore -- we ²⁵¹¹⁰ only have 61 days left by our calculation, so therefore we are going to reduce evidence by 22 days. We have to. We're not seeking an extension of time. This is simply to demonstrate to the Chamber what it is we are doing. And I can then take you to the parts of the document that I hope will be helpful to you. And I've got a correction to make about the Srebrenica disclosure. I misspoke. That's Mr. Saxon being kind to me. I made a mistake, and I'll put it right in relation to that in a minute. If Your Honours would be good enough to go to page 11 of 17 and to see that and the following pages to number 14 of 17, you'll see a number of witnesses marked as Sarajevo. You'll see that the calculation of the time these witnesses would take, which is the third column from the right, is premised on application of 92 bis in whole or part and obviously resolution of the 92 bis motion coming this week in relation to Sarajevo will determine whether our overall calculations for Sarajevo crime evidence are correct.

The witnesses listed here with the time allocations made would take about two weeks.

Starting on page 14 and at Witness 111, and the Court will remember that I've had the numbers frozen so there were witnesses added and deleted, the numbers remain the same for ease of reference. Starting at 111 and then going over to page 17 and to number 131, you will see the witnesses for Srebrenica similarly with calculations of time those witnesses may take.

Following on from 131, you will see additional witnesses in respect of whom applications are either before you or shortly to come, and ²⁵¹¹¹ of course in all cases, these are witnesses who -- by whose evidence we can save time or present more important evidence than those earlier on the list. We will obviously return to those in due course. If the Chamber then comes back to the first part of the list which is -- if the Chamber then comes back to the first part of the list, everything between numbers 1 on page 1 and number 93 on -- at the top of page 11, that is the list identifying all witnesses apart from Srebrenica and Sarajevo and apart from the few additional witnesses named on page 17. The coding, as the Chamber will I hope recall, the shading by -- the coding by shading is to indicate either witnesses who since their preparation of this list have given evidence, so that obviously then they're going to take no further time, number 2 being an example. He's already given his evidence and he's gone. Or they're shaded for other reasons explained in the comments as to why they should take no time. Accordingly, it's only the witnesses whose names or whose pseudonyms appear in ordinary black type on white background that are the outstanding witnesses we would in principle want to call, and what we have done, as I indicated, is marked the first 20 so that people can be focused on who to prepare for, and we've marked those by asterisks so that if the Court would be good enough on page 1 to look at number 3, that is a witness, or one of three witnesses to whom we give absolute priority as we do to number 5. And if you would then be good enough to turn over the page to page 3 to number 19. And if you would look below that to numbers 21, 23, and 24 to witnesses yet to be identified by name who will be able to prove the intercepts obviously vital and so on. ²⁵¹¹² So that the accused should know these are the witnesses in addition to Srebrenica and Sarajevo and the witnesses already on the list for last week and the first week in September, these are the witnesses on whom attention should be focused.

JUDGE KWON: Mr. Nice, speaking for myself, in the future when we have to deal with this kind of administrative matters in the absence of the accused, I would like you to serve this kind of document to the associates of the accused so that he can follow in the public gallery. That can be arranged.

MR. NICE: I'm very sorry if they haven't had it. I know that we make every effort to communicate with them. I was going to say in any event and make the point now that if they have any queries, they have only to ask me and I will deal with them.

The position is that I think they are under particular limitations as to contacting us directly, but I am aware that they actually have very good relations with, for example, Ms. Dicklich who sits beside me and with whom they cooperate when they need things, so that I'm optimistic that if they do have problems of understanding -- there we are. Not only relations between Ms. Dicklich -- ah. There's a copy for them. It's with the Court officers. They have not yet had it but I will explain it to them with pleasure afterwards.

So I hope that explains the position. And just again to make it quite clear in light of His Honour Judge Robinson's concern, page 17 shows the -- not the problem we face, the reality we face namely of the witnesses we would liked to have called who would have taken a total of 61 ²⁵¹¹³ days on this calculation, we have to -- we have to reduce by at least a third and we will do so.

With that in mind, can I --

JUDGE ROBINSON: So you won't be seeking to reclaim days lost through illness or otherwise.

MR. NICE: My understanding is that the days allowed are, as it were, net days and that if he's unwell, we still have the same number of days. That was my understanding of the ruling.

JUDGE ROBINSON: Yes. That's correct, yes.

JUDGE MAY: In fact, it's 62 but my calculation.

MR. NICE: Thank you. I will come back to one other -- one other point on that document if the Chamber would be good enough to perhaps keep page 17 open.

The other two lists which are the 92 bis witness lists for Croatia and Bosnia I hope are self-explanatory. They have again time estimates which if you take, for example, the Croatia 92 bis witness list and you go to page 9 of it, shows a total of 4.375 days required. If you go to the end of the Bosnia list which is page 15 of 15, that comes to 22.75 days. You can see how those days are calculated and you can see that the calculations then feed into the figures on page 17 of the list. So you can see exactly how we are planning our work, and you can see what would be the consequences for reduction of evidence of crime or increase in the time beyond our estimates for crime witnesses.

Your Honour, with an eye to the reality we face, we would respectfully remind the Chamber that we have, of course, done everything ²⁵¹¹⁴ we can to speed up the presentation of our evidence in chief. I realise that there are difficulties in everyone moving at the same speed, but we are going as fast as we can, and we're being as focused as we possibly can in the evidence that we adduce, and we would of course press the accused through the Chamber to be as focused as he can in his use of cross-examination time given the number of witnesses we are inevitably going to be dropping, and our general thesis would be that it must be more helpful to the Chamber to have, as an example, ten witnesses examined and cross-examined in a focused way by the accused than to have five witnesses examined in a less focused way. And if the witness who I dealt with at the beginning, whose name will be available to the accused and indeed to the associates immediately after the hearing, they have only to come and ask, he will serve as a paradigm for witnesses of that general type, then it might be that the Chamber would want to consider with such witnesses, knowing that they are coming, giving an advanced allocation of time to which the parties would be expected to adhere. So that, for example, if witnesses of that type come and we're told one session each or an hour each and prepare yourselves because that's the time that's going to be available, then use it as you judge, that we will have both more efficient use of time and -- there it is. The point is obvious. It's a matter, of course, for the Chamber, but as we try and identify the witnesses who are most valuable to you, we ask you to consider that. And I remind myself that I explained one of our Rule 70 witnesses we were optimistic would be available, that witness is one of the witnesses identified at number 3 on page 1 rather than all three of ²⁵¹¹⁵ them. And you'll, I hope, have before the end of the recess an application that will make that position clearer. Oh, yes. Your Honour, just -- I'm very grateful to Ms. Dicklich for a couple of points. The versions, of course, were printed in something of a hurry this morning, and one of the visual aids we intended to provide to you hasn't shown up. We intended to shade in a different way all those that have a zero time estimate. Apparently the shading is there, it just doesn't show up. So if we get you another version, you may find that something like number 4 who for reasons given on the right-hand side is a witness we are unlikely to call will be shaded in a different way so you will realise we're not presently intending to call him, and that will mean that you and the accused and the amici need only look ultimately when we've got the other shading in place at the black on white boxes to see the witnesses we are still hoping to call. The corrections I should have made are in relation to the disclosure for Srebrenica. We are not planning to make the whole of the Srebrenica case available to the accused if that's what I implied, because most of it is available publicly. Of course, he will know that. His associates will know that, and they know where they can find that. Steps are -- in relation to what is not available publicly. And because of the particular problems with disclosure for Sarajevo and Srebrenica, we are making available not material that is exculpatory but that is potentially exculpatory. Finally, the Chamber will remember that there were -- there was the promise of four documents. The three fill-box documents, Kosovo, ²⁵¹¹⁶ Croatia, and Bosnia although I don't think you need a replacement for Kosovo because there is no or very little change, but I will check that. The fill-box documents will be available at the end of the week. There's also a chronology which I hope will be available at the end of the week. And they will be available both in hard copy and electronically. I can make available the Bosnia map which has to be prepared in a different way because of the different type of municipality boundaries and for other reasons. The legend is very straightforward, and it identifies those municipalities in respect of which we will not be leading any evidence. By green, the municipalities where evidence has been led or will be led, and by yellow where the evidence to be led will be primarily through the application of 92 bis and will be relating to selected incidents rather than by way of an attempt to cover the municipality comprehensively. But that, I think, is in line with the policy we've identified from the beginning once it was accepted that it was unrealistic or impossible to prove everything that was covered by the various named municipalities.

Thank you for the time to address the Chamber. I hope that sets out in a way that is helpful the way we intend to approach our task following the recess.

JUDGE MAY: Thank you. Mr. Kay, I don't know if there is anything you want to raise on behalf of the amicus not, of course, to comment on what's been said since this is in the absence of the accused.

MR. KAY: No. There is the issue of cross-examination of ²⁵¹¹⁷ witnesses being called by a party which I appreciate the Trial Chamber would have been alert to as a potential issue of procedure that will need some consideration and thought because of the arguments against that technique.

JUDGE MAY: It may be helpful, Mr. Nice if you would put that into writing. Not a complicated paper but have it in writing so we that have it at the end of the recess and we can consider the problem and also the amicus can have it too.

MR. NICE: That paper is already in preparation.

JUDGE MAY: Thank you. That's it. We will adjourn now until Monday the 25th of August.

--- Whereupon the hearing adjourned at 10.05 a.m., to be reconvened on Monday, the 25th day of August, 2003, at 9.00 a.m.