The transcripts of the trial of Charles Taylor, former President of Liberia. More…

  • This is a Status Conference pursuant to Rule 56 in the case of the Prosecutor of The Special Court for Sierra Leone versus Charles Ghankay Taylor, case number SCSL-03-01-PT, the Honourable Justice Sebutinde presiding.

  • Good afternoon, ladies and gentlemen. Welcome to the second pre-trial Status Conference in preparation for this particular trial.

    I wish to begin the proceedings by recording the appearances. I'll start with the Prosecution side, please.

    MR. STAKER: May it please Your Honour, for the Prosecution, Christopher Staker; with me, Ms. Wendy van Tongeren.

  • Thank you.

    And for the Defence?

    MR. KHAN: If it please Your Honour, Karim Khan for the accused. And I have the pleasure to introduce for the first time my legal assistant, Mr. Roger Sahota.

  • Thank you.

    I also wish to recognize at this Status Conference the presence of the Registrar of the Special Court, Mr. Lovemore Munlo, his deputy, the Deputy-Registrar, Mr. Herman von Hebel. I also wish to recognize the Principal Defender, Dr. Vincent Nmehielle, and, of course, the legal officer for Trial Chamber II, Simon Meisenburg.

    Now, the agenda for this Status Conference - and I understand we have two hours to plow through quite a number of items this afternoon - the agenda for the -- rather, a provisional agenda for this conference was published on the 4th of August by the Trial Chamber in its Scheduling Order, inviting the parties to submit any additional items by the close of last Friday, the 15th. To the best of my knowledge, no additional items were filed. I therefore assume that the parties are happy with the provisional agenda as is. But, in any event, the last item on that agenda is AOB, and that usually gives the parties an opportunity to raise any other pertinent issues to the trial.

    I'm really anxious for the parties to keep their submissions to a minimum and to avoid repetition because of the time constraints. We would like to cover as much ground as possible.

    Turning to the agenda, the provisional agenda which now becomes the agenda of the Status Conference, I think I'm going to reorganize it a bit and start with item number 2, which is the composition of the Prosecution and the Defence teams in as far as you are able to say at this stage.

    Maybe we'll start with the Prosecution side, because you've had much longer to organize yourselves.

    MR. STAKER: Thank you, Your Honour. I am, of course, the Acting Prosecutor of the Special Court. Your Honour will be aware, the Trial Chamber will be aware, that Mr. Jim Johnson is the Chief of Prosecutions.

    As to the Taylor team itself, with me at the bar table today is Ms. Wendy van Tongeren, who at present is the most senior lawyer on the team for this case. Others who are not with us in court and may not be familiar to the Bench because at this stage of the proceedings we do not regularly appear before the Bench, are Mr. Alain Werner, Ms. Shyamala Alagendra, Ms. Leigh Lawrie, and we have at present an intern assigned to the team, Ms. Ruth-Mary Hacker.

    Now, we anticipate that there will be other members who will be recruited to the team in due course and they will become known at that appropriate time.

  • Thank you, Mr. Staker.

    Could I call upon Mr. Karim Khan.

    MR. KHAN: Of course, Your Honour. After that galaxy of stars that he's assembled against Mr. Taylor on behalf of the Prosecution, the Defence composition is, of course, far more modest. It is myself as lead counsel, my learned friend -- my friend Roger Sahota, who is a solicitor of the Supreme Court of England and Wales. We have recently signed a legal services contract with the Principal Defender, and I believe that's with the Registrar for consideration. Under that, we are entitled to one additional co-counsel.

    Your Honour, in addition, very kindly I do have, and the court has been informed of this, I do have at my disposal at the moment legal advice, to me as opposed to the team at large, from Michael Mansfield, Q.C., Ben Emmerson, Q.C., and Mr. Rodney Dixon. All three are members of the English bar and they are assisting me at this stage.

    But, Your Honours, as far as the legal and formal composition, it is myself and Mr. Roger Sahota at the moment.

  • Thank you, Mr. Khan. That is encouraging news, because I was beginning to get concerned, and so are my colleagues in Freetown, Trial Chamber II, the Judges of Trial Chamber II, because it's been long since you told us that you have a full Defence team. And I know that investigations can only begin in earnest with a full Defence team. But at least the fact that you've signed a contract now as -- officially assigned counsel, and simply awaiting co-counsel is, indeed, good news.

    MR. KHAN: Well, Your Honour, I'm much obliged for that. I should say, for the sake of clarity, I've signed it and the Principal Defender has signed it. It is with the Registrar for consideration. It's not totally completed yet, so I don't want to misrepresent.

    Your Honour, I think it's fair to say that there's been no tardiness on the part of the Defence. One reason why a legal services contract was not signed previously, in all fairness and in all candour, is simply because no budget had properly been put in place. I think many people were taken aback at the speed of transfer of Mr. Taylor to the location here in The Hague, and of course that has budgetary implications. It was only once the Registry had managed to look at its coffers to see what was available that a budget proposal could be put forward. And the first time it was put forward to Defence counsel, it was signed there and then.

    So, Your Honour, there has been no tardiness on the part of the Defence and no extensive negotiations regarding it either.

  • I appreciate that very much, Mr. Khan.

    I wonder if the Principal Defender has anything additional to say in that regard?

    MR. NMEHIELLE: Well, I just want to add that -- yes, to confirm, indeed, that a legal services contract has been signed between myself and Mr. Karim Khan as assigned counsel. And, of course, under the terms of the legal services contract, it is within his purview to constitute his legal team, and I expect him to do that in terms of having another -- a co-counsel and possibly another counsel, if he wishes, to make the team a team of four - lead counsel, two co-counsel and a legal assistant, possibly. But he has a choice as to how he wants to go about that.

    I will forward the contract, of course, for the attention of the Registrar. But I can very well say that this is a fait d'accompli, more or less, in terms of signing a legal services contract.

  • Thank you, Mr. Principal Defender.

    MR. KHAN: Ma'am, I don't want to be like a jack-in-a-box, but just for the sake of clarity, I will say -- and these are documents which Your Honour can have access to. They are confidential documents, but there's no objection for Your Honours having access to them. The proposal put forward and the budget, it was agreed, was on the basis of one lead counsel, one co-counsel, one legal assistant. An investigator is separately funded by the court. That's the basis of the budget that was agreed. If more is also available, of course -- more funds are available, of course they would be most gratefully and willingly accepted.

  • Mr. Khan, thank you. It will not be necessary for me or the Trial Chamber to inspect the private contract signed by yourselves. We don't go into those matters.

    Now, if we could --

    MR. STAKER: Your Honour.

  • Sorry, Mr. Staker. Yes, please.

    MR. STAKER: If I could just make one comment on that. Of course, the size and the composition of the Defence team is not a matter that the Prosecution would involve itself in. But just for sake of clarification, I'd be interested to know, for the record, whether the Defence is, in fact, availing itself of the full entitlements to which it could avail itself of under the legal aid system as it exists at the Special Court. If it is not, of course that's a matter for the Defence. But if it is the case that full use of the legal aid system is not being used, then we would understand that is a conscious choice and would not be invoked as a reason for the length of time required for various procedures, that it would not be raised that because of the small size of the Defence team, that more time is needed for the various procedures.

  • Mr. Staker, I would like to imagine that your concern with the size of the Defence team is purely with a view to ensuring that investigations are expeditiously carried out. But I would like to hear what Mr. Khan has to say in that regard.

    MR. KHAN: Your Honour, I think I mentioned, whilst the Prosecution may continuously assert they have no interest in the composition and size of the Defence team, of course sometimes words speak just as loudly as actions.

    Your Honour, on the last occasion before His Honour Judge Lussick, the Prosecution once again seemed to delve into the composition of the Defence team, and, Your Honour, that transcript is before you. The Defence made it abundantly clear that the composition of the Defence team is not and has not been preyed in aid at any stage as a reason for further time to prepare this case. Whatever can be done as far as the pre-trial preparation of Mr. Taylor is concerned is being done.

    A legal services contract has only just been signed, but, Your Honour, it would be foolish for any counsel not to utilize whatever resources have been made available under a legal services contract. And certainly I would like to think this counsel at least is not quite, in that regard at least, that foolish.

  • I think the matter has been well taken on both sides, and we'll leave it at that and move to the second -- what would have been the first, but the second agenda item, which is the most important in my view, and that is an update from the parties on compliance with the disclosure obligations under the various Rules of Procedure and Evidence; namely, Rules 66, 67 and 68 of the Rules of Procedure.

    May I start by calling on the Prosecution. If the situation has changed from the first Status Conference, I wouldn't want you to repeat what you submitted in that Status Conference. But if there is any progress, I would like to hear that.

    MR. STAKER: Yes, Your Honour, indeed, there has been some significant progress in that regard, and I can update you in that respect.

    To begin first with one preliminary matter, there was a meeting on the 23rd of August between the parties and the Deputy-Registrar. I understand that the Bench has been informed of the occurrence of that meeting and indeed the content of what the exchanges on that occasion were.

  • That's correct, Mr. Staker. That's correct.

    MR. STAKER: One of the matters that was discussed at that meeting was the timing of the provision by the Prosecution of a provisional witness list. At that meeting it was left on the basis that the Prosecution would provide such a list, if possible, by this Status Conference and, in any event, by the end of this month.

    I can advise Your Honour that this list was, in fact, provided to the Defence immediately before the commencement of this hearing today. Because it has only just occurred, I expect that my colleagues from the Defence may not be in a position to say anything in particular about it at this stage. But, in the view of the Prosecution, this is a major and significant step in the furthering of these proceedings.

    To give some idea, just a brief overview of what the list is, it lists witnesses in a number of different categories. Some witnesses have been categorized as predominantly linkage witnesses; that is to say, that although some evidence they may give may be related to the crime base, they are being called predominantly for the purposes of showing linkage. Some have been categorized as predominantly crime base witnesses. We've also given indications of the areas in which we anticipate calling expert evidence and the categories of specialist areas on which the experts might be called.

    We --

  • Mr. Staker, sorry to interrupt. Are you saying that on this list which you've served on the Defence, these categories are indicated?

    MR. STAKER: Yes, yes, that's correct. They are further divided also into a core list and a backup list. What the figures then amount to are 133 witnesses on the core list, who are predominantly linkage or predominantly crime base, and additionally we've indicated that we would anticipate calling between 14 and 19 expert witnesses. That means on the core list we have at present a maximum indicated of 152 witnesses.

    Now, we make clear this is a provisional list. As matters progress, further witnesses may be added and, indeed, some witnesses on the list may be dropped. But at the last Status Conference, a figure that was being aired was something in the order of 180 witnesses if the Prosecution had to prove the entire case. We're now looking on this list at a figure of 152.

    Now, of course, if there is significant agreement on facts with the Defence, that number may reduce considerably. As I say, of course, there may be further witnesses that are added.

    In addition to those witnesses, the backup list contains a total of 121 witnesses. Being on the backup list, of course, it is anticipated that they would only be called in substitution of witnesses on the core list.

    So this gives an indication of the size of the case that we are anticipating at this stage of the proceedings.

    One thing that was discussed at the meeting on the 23rd of August was whether the provisional list could give an indication of which witnesses we would expect to be called to give live testimony and which witnesses might be candidates for Rule 92 bis.

    We ultimately concluded that this was something that we could not meaningfully do. It would be simple enough for us to try and make some kind of guess. I think we could say as a rule of thumb we would anticipate that predominantly crime base witnesses would be candidates for Rule 92 bis; linkage witnesses would be candidates for live testimony.

    But, of course, until negotiations have been conducted with the Defence, which were also foreshadowed at the earlier meeting, negotiations into the possibility of agreeing on facts, until we know what's agreed and what's in dispute and what, following any agreement, is a very central issue and what is a peripheral issue, it would really not be meaningful prior to that to try and give any indication of which witnesses would be required to be called live and which might be 92 bis witnesses.

    Now, moving on from that to the status of disclosure, if I begin with Rule 66(A)(i) and (ii) disclosure, the Prosecution has made disclosure packages -- given disclosure packages to the Defence on the 17th of May, the 11th of August, the 30th of August, and a package of material was given to the Defence again today, again just immediately prior to the commencement of this Status Conference.

    Some of the witnesses of which Rule 66 disclosure was previously made have not made it to the provisional witness list. This is for a number of reasons. Some may not have been willing to testify; a number, in fact, are now deceased. And there are some witnesses on a provisional list of which disclosure had not been previously made. But we're now at the stage that Rule 66 disclosure has been made of all witnesses on the core list, other than two in respect of which some permission will need to be sought before disclosure can be made.

    As to witnesses on the backup list, there are some witnesses in respect of which disclosure has not yet been made. We anticipate that being completed within a week from today. And on that basis, on a week from today, Rule 66(A)(i) and (ii) disclosure will be up to date.

    Now, I don't know if it may be convenient - I'm in Your Honour's hands - if my colleagues for the Defence want to address that aspect of disclosure before we move on to Rule 66(A)(iii) or Rule 67 and Rule 68.

  • Okay. Let me give Mr. Khan -- Mr. Khan, do you wish to address this issue?

    MR. KHAN: Well, Your Honour, it's a matter for you. I'm very happy to deal with disclosure in one go to save time. So perhaps if my learned friend, with your leave, completes his submissions regarding the state of the Prosecution disclosure, and I will respond to it in toto.

  • Okay. Thank you, Mr. Khan.

    Mr. Staker, you might perhaps take us through the three rules.

    MR. STAKER: Rule 66(A)(iii), the Defence has previously indicated its intention to invoke this rule. We note that, under the terms of that rule, disclosure is made by the Prosecution upon a showing by the Defence of the categories of those items that it considers to be material, material being a reference to material that is material to the preparation of the defence.

    The Prosecution has not received any such request from the Defence to date, so at this stage we have no request under that provision on which we can act. But if we were to receive such a request, it would be dealt with at that time.

    As to Rule 67 disclosure, we recall that at the last Status Conference, and again at the meeting with the Deputy-Registrar on the 23rd of August, the Defence indicated that it did not intend to offer any defence of alibi or special defence. We would ask the Defence to indicate if there's been any change in that position. We presume there hasn't.

    We note that Rule 67(B) provides that failure to provide such notice does not prevent an accused from relying on any such defence, but Your Honour will, of course, be aware of the recent decision of Trial Chamber II on the 26th of July in the AFRC case to the effect that the failure of -- failure to give notice of a defence of alibi may be taken into account in assessing credibility. Now, this is presumably moot if the defence is not going to be raised, but I simply note that.

    We note also that the Defence has indicated at the meeting with the Deputy-Registrar that it does not intend to file a defence case statement. Again, if there's been any change in that position, I'm sure Mr. Khan will let us know. On that front, I would merely note that the purpose of the defence case statement is to assist the Prosecution with its disclosure obligations under Rule 68. It may have been a way of progressing the case a little more speedily, but we don't seek to make any issue of that.

    As to Rule 68, the material that has been disclosed to the Defence so far has included amounts of Rule 68 material. The Prosecution is aware that Rule 68 is an ongoing obligation, that the Prosecution is required to continue to review material in its possession with Rule 68 in mind. As new material comes in to the Office of the Prosecutor, it is reviewed, including for Rule 68 purposes. Review of material already in the possession of the Prosecution is ongoing. We would expect that by the end of November we will have completed a review of all witness statements presently in the possession of the Prosecution.

    I think that is all that we, on the Prosecution side, would have to raise on the matter of disclosure at this stage.

  • I don't know. Maybe this is the right stage for me to mention this. It is an issue that indeed did arise during your meeting, the parties' meeting, chaired by Mr. von Hebel in August. This is the issue of the request by the Defence that the disclosures really should be sorted according to the rules. I am aware that there is no legal obligation to do this. I'm also aware that there is no practice in the Special Court. But I'm just wondering whether the Prosecutor's office have changed their position at all from the views expressed in that meeting; namely, that they were not willing to sort this disclosure.

    MR. STAKER: Your Honour, in the disclosure that was made on the 30th of August and again in the disclosure that was made today, the Prosecution did, in fact, identify material that was being disclosed specifically under Rule 68, and the intention is to continue that practice.

    What has never been the practice in any international criminal tribunal, as far as I am aware, would be for the Prosecution to indicate within a single document where there may be Rule 68 material, if the material is disclosed, for instance, under Rule 66(A). If the Prosecution discloses a witness statement and says, "This is a statement of a witness that the Prosecution intends to call," it would follow that the content of that statement is inherently inculpatory. It's obviously something that would be reviewed by the Defence. It's a matter for the Defence to decide whether they may find something within that that they feel may assist their own case.

  • Thank you, Mr. Staker.

    I think this is a good place to call upon Mr. Khan to respond.

    MR. KHAN: Your Honour, I'm most grateful.

    Your Honour, it's always a pleasure to hear my learned friend's submissions as they always invariably also include a law lecture as well as a submission as to the state of disclosure.

    Your Honour, perhaps if I can deal with the issues raised by my learned friend in this way: I will deal with Rule 66(A)(iii) first.

    Your Honour, in my submission, and these were matters raised before the Deputy-Registrar in our meeting in Freetown, in short, my learned friend has got it wrong. Your Honour, you will see that Rule 66(A)(iii) has two limbs. The first limb relates to documents that are relevant to the preparation of the defence. Your Honour, I pause whilst you just peruse the rule again and have it in mind. And Your Honour will see the second limb deals with documents that are relevant to the preparation of the defence. They are quite distinct, they are quite separate, and the obligation is separately and clearly spelled out.

    Your Honour, of course there needs to be a showing by the Defence when the Defence seek to troll through the Prosecution archives. Fishing expeditions are not allowed despite the very eloquent distinction put forward by His Honour Judge Geoffrey Robertson recently in his dissenting opinion in the Hinga Norman case.

    But, Your Honour, the second aspect is one of fairness. It simply states that documents that the Prosecution now at this moment in time -- and I pause there. The Prosecution, of course, state that they are trial-ready. That's their public protestation. They are ready for trial; bring it on. So documents that they intend to rely upon at trial as exhibits have to be disclosed to the Defence, not upon a showing of good cause but as a right.

    Your Honour, to that extent, in my submission, my learned friend's articulation of the scope of the rule is, with the greatest of respect, simply wrong. And it is my submission that I am entitled and the Defence of Mr. Taylor is entitled as of right for the disclosure detailed at least in the second limb.

    Your Honour, this was raised in Freetown. A considerable amount of time has gone by. No exhibits, no maps, no documents have been served from the Prosecution, which is trial-ready, upon the Defence.

    Your Honour, that's the matter for you --

  • Mr. Khan, to interject here, is it your submission that actually these books do exist - books, documents, accounts, et cetera - do exist as part of the Prosecution case?

    MR. KHAN: Well, Your Honour, I'll come to that in a moment as well because that goes down to the disclosure officer and also to the exculpatory statement that, in my submission, the Prosecution is obliged to give.

    But, Your Honour, unless the Prosecution say simply there are no documentary exhibits, no maps, no sketches, no photographs that they seek to rely upon at trial, then that rule bides. But, Your Honour, of course, if my learned friend stands up now and says there are no documentary exhibits, of course I will take him at his word.

  • So do I understand you to say that, to date, none of the disclosures includes any of this material? And so you assume that none has been disclosed.

    MR. KHAN: Well, Your Honour, I think it's very largely true. There may be -- it's a huge morass of documents. There may be an occasional document thrown in. The purposes for which it is being disclosed is not clear. And perhaps that ties in with the Rule 66, 68, and as well as 73 rules. I mean, what documents are the Prosecution using for what purpose?

    But, Your Honour, overwhelmingly it is my understanding that is correct, from the boxes of documents that we were disclosed initially on the 17th of May.

  • Yes. Of course I will give Mr. Staker a chance to respond to that particular submission, except maybe at this stage for me to comment on that Rule 66(A)(iii), which seems to put the burden -- well, there are two burdens. One is on the Prosecution to disclose, but the other is on the Defence to indicate, "upon a showing by the defence of categories of, or specific, books, documents, photographs and tangible objects which the defence considers to be material to the preparation of a defence ..."

    So, if and when these disclosures are made, the burden would shift to the Defence to indicate which of these documents they would like to inspect further.

    But, I mean, I need to hear from Mr. Staker at the appropriate time. Not now. I want you to finish your submissions, Mr. Khan.

    MR. KHAN: Your Honours --

  • But this is what I see in this Rule 66(A)(iii), that there are two obligations; the one on the Prosecution to disclose, but the other is for the Defence to initiate and indicate, for very logical reasons, because you're in the best place to show that these documents would be material to the preparation of the defence case, once the disclosures have been made. That was just a comment that I think one would read into the rule.

    MR. KHAN: Well, Your Honour, I'm most grateful for your insight. In my submission, it's a matter of statutory construction. It's never been the case, it's never been the case in any jurisdiction, in any criminal case, that the Defence tells the Prosecution what evidence it should adduce in a bid to convict its client. Your Honour, there is clear --

  • I don't think that was the suggestion, Mr. Khan.

    MR. KHAN: There's a clear distinction under the rule between the morass of documents which the Prosecution may have control over but which it is not seeking to rely upon, that requires a showing of good cause by the Defence.

  • That is why I was --

    MR. KHAN: And secondly --

  • That is why I was asking, Mr. Khan, for clarification. As of today, are you saying that the Defence has not received any kind of disclosure that is envisaged in 66(A)(iii)?

    MR. KHAN: Your Honour, that is actually my understanding. I haven't seen maps, for example. I don't even have a map of Sierra Leone provided by the Prosecution; I don't even have a map of Liberia provided by the Prosecution. And, in my submission, it's a matter of statutory construction. The second limb is very different. It deals not with what I want to see, what I want to use. It's my entitlement to know the case against me. It's my entitlement, as Defence counsel, to see what the Prosecution seeks to use in its bid to convict my client. It goes down to equality of arms and to prevent trial by ambush.

    Your Honour, in my submission, the second limb shows no showing of good cause by the Defence. It's a right. It's as simple as that.

    Your Honour, perhaps if I move on.

  • Yes, please do. Please do.

    MR. KHAN: Rule 68 -- well, Rule 67 first.

    My learned friend mentioned the AFRC case. Your Honour, we are, of course, aware of our legal obligations. And perhaps we can set a principle down; one would hope that the Defence lives up to it. We try not to make fickle submissions. Wherever we state a position, perhaps it can be taken as continuing unless we seek to change that position before the Court.

    So, Your Honour, there's no change from the Defence. We did consider the matter. We didn't just stand up and say, on a whim, that there was no special defence being offered. It was considered and there has been no change. If there is, of course Your Honours would be the first to know of it.

    Your Honour, in relation to the case statement aspects, Your Honour, under 68, a case statement again is not required -- sorry, a Prosecution statement that they have fulfilled their Rule 68 disclosure obligations is not predicated upon any action by the Defence. Again, Your Honour, it goes down to this basic concept that the Prosecution brings this case, the Prosecution must prove it, and in doing so, it must give full and frank disclosure to the parties to prevent trial by surprise.

    Your Honour, if you look at the terms of Rule 68, and particularly Rule 68(B), Your Honour, you will see that there is no obligation on the Defence to give a case statement. It simply states that within 30 days of the initial appearance - of the initial appearance - the Defence should be given a statement disclosing to the Defence existence of evidence known.

    Your Honour, in my submission, the Prosecution are obligated, both under the Rules of Procedure but in any event as a matter of good prosecutorial practice, to show that they have turned their mind to the disclosure obligations under the rules. Your Honour, of course I accept total good faith on the part of my learned friends. Your Honour, but -- there is an obligation to show that they have turned their mind to what are important responsibilities of ensure a fair trial, and they are, after all, not to strive officiously for a conviction but simply to present evidence in a fair manner.

    Your Honour, I did mention on the last appearance before His Honour Judge Lussick that, in my most respectful submission, it would be at the very least a jolly good idea, to use an English expression, that the Prosecution appoint a disclosure officer to certify that the rules are being complied with.

    Your Honour, there have been -- one can't be blind to the various difficulties raised in various international courts. Whilst the Prosecution may not have been formally sanctioned or disciplined, there has been a continuous vein of judicial criticism of disclosure practices before other ad hoc tribunals. My learned friend will be intimately familiar with Furundzija, with Krstic, with Halilovic. Your Honour, the list goes on. And time and time again, the Prosecution say, "Well, this has been overlooked; it's been a mistake; there's huge archives," and it goes down to disorganization.

    Your Honour, what I don't want to do - and I gave my learned friends a heads-up in a meeting we had in Freetown - I don't want to be in a position months from now where I have an option of either alleging bad faith on the part of the Prosecution, a tactical surprise on the part of the Prosecution, incompetence or negligence. Your Honour, I will not, on behalf my client, be able to sit quietly by whilst late disclosure is produced that may very well, even if we are given time suddenly when a new document appears, may very well have impacted on the content and focus of previous cross-examination of Prosecution witnesses.

    How, then, can the Prosecution guard against such eventualities? In my submission, it's for the Prosecution's own protection, as much as for a safety mechanism, for them to appoint a disclosure officer to certify that they have fulfilled their obligations under the rules.

    Your Honour, His Honour Judge Lussick thought that a sensible idea on the last occasion.

  • You mean the one of disclosure officer?

    MR. KHAN: Indeed, Your Honour.

    Your Honour, the same principle applies for Rule 68, that the Prosecution have to show that they have turned their mind, in my submission as much as for good practice as anything else, that they have disclosed what is exculpatory evidence. That hasn't been done. In my submission, it ought to be done. And I would ask that Your Honour gives consideration to making a ruling on that point.

    Your Honour, it's never been the Defence position at any stage, neither today, nor at the very useful and constructive hearing before the Deputy-Registrar in Freetown, that the Prosecution are obligated to detail paragraph by paragraph within a statement what is Rule 68, what is Rule 66. That would be absurd, that would be onerous, and it is something that the Defence have never requested.

    But, Your Honour, what we have requested, and it has applied before other international courts which may have some persuasive effect on Your Honour in considering this matter, is that rather than just dumping boxes of documents on a party, in a bid to focus the issues, in a bid to show that they have turned their mind to disclosure obligations rather than just emptied out cupboards into boxes, they have to, in my submission, detail why a document is being served. Is it because it is, in its totality or in part, Rule 68? Is it because it's Rule 66? Or why? Is it because they are intending to use it for trial under 73(F), I believe it is, or not? Your Honour, that has not been done.

    In my submission, as far as trial management is concerned, as far as creating a safety net at an early opportunity to prevent a miscarriage of justice or unfairness to a party, that procedure can very painlessly be put in place. My learned friend has articulated a galaxy of stars, a constellation of people that are working around him that are all phenomenally able; they, the lawyers, without any mention of the investigators and the other resources at his disposal.

    I cannot see for the life of me, Your Honour, with the greatest of respect, why there would be the slightest trepidation or reluctance on the part of the Prosecution to have such an officer simply sign off that they have fulfilled their legal obligations under the rules. It is not a favour that the Defence are asking; it is a simple procedural safeguard.

    Your Honour, in relation to the new disclosure, it has been served just before Your Honour came in. I haven't had an opportunity to go through it, although my learned friends, both the Acting Prosecutor and his -- and perhaps lead counsel in this case, have very ably given me a succinct summary and I'm very grateful for that courtesy.

    Your Honour, it does appear that there are a very great number of witnesses. They all have to be prepared. I won't go on any longer. Perhaps that is relevant to the commencement date of the trial which will be dealt with a bit later.

    Your Honour, if you will bear with me one moment, I need to consult, perhaps.

    Your Honour, I'm very grateful for the assistance of my friend. As far as your previous question is concerned about the exhibits we've had, Your Honour, I stand by my submission that I'm not sure of the extent of disclosure. But for the sake of clarity, we were disclosed on the 17th of May one CD which had 15 documents on it. Whether or not they are going to be exhibits or 68 or they were just put in there, I don't know at this moment because that was not properly delineated.

    On the 11th of August, the Prosecution very kindly, I must say, gave us 83 documents, which is said to be exhibits, including logs and letters, and also 97 open source documents. But, Your Honour, of course one looks at the number of Prosecution witnesses and then looks how they have whittled it down to 150, 160 - I don't know exactly how many - 153 core witnesses, never mind the pool that's a backup that perhaps we can count on seeing some of.

    But, Your Honour, there should be, in my submission, a statement from the Prosecution stating do we have all the exhibits or not. If we don't, under the rule that I have already made submissions on, we are entitled to those exhibits. But, Your Honour, some documents have been given. The extent to which the full exhibit list and documentary evidence has been disclosed is very much in issue. I am, for myself, extremely uncertain and doubtful that the Prosecution have properly served the exhibits that they intend to rely upon at trial.

    So, Your Honour, to that material extent, my submission is, with the greatest of respect, unchanged.

    Your Honour, I'm grateful of the time. Those are my brief responses, or my responses anyway, if not brief, to my learned friend's submissions, unless you have any questions at this stage, Your Honour.

  • No, thank you, Mr. Khan. I just want to afford Mr. Staker an opportunity to address particularly two things.

    Mr. Staker, is the OTP withholding information, withholding exhibits?

    MR. STAKER: Well, in my submission, certainly not, Your Honour. I think this may come down to a difference of view as to how the rules operate. Certainly the way the Prosecution has been conducting itself is in accordance with the procedures that have been applied in all previous cases before the Special Court.

    Mr. Khan said that there was an issue of statutory construction about Rule 66(A)(iii). It would be our submission that if we do have a legal difference over a point of statutory construction, that the appropriate method of resolving that would be by way of formal motion. I would submit that a Status Conference is not the appropriate forum for arguing them out extemporaneously, perhaps looking to an oral decision.

    But if I could state our position succinctly, it is that, if one looks at the terms of Rule 66, it provides for an obligation to disclose witness statements. This is 66(A)(i) and (ii); that relates to witness statements. The practice in the Special Court, which I believe is a similar practice in other international criminal tribunals applying similar rules of procedure and evidence, is that it's at the stage of Pre-Trial Conference that orders are made setting deadlines for the provision by the prosecution of an exhibits list. There is nothing in the rules about disclosure of exhibits prior to that time, other than two provisions that may come into play.

    The first is Rule 68. That means that where documents contain exculpatory material, there is an obligation to disclose those. And the other is Rule 66(A)(iii) where, as I say, it's not the practice for the Prosecution to disclose all documents somehow relevant to the case to the Defence at an early stage. It's at the Pre-Trial Conference stage that the exhibits to be used at trial are then specified. But if, at an earlier stage, the Defence says to the Prosecution, "We are conducting our investigations; it's material to the preparation of our defence that we find material related to issue X or Y or Z; we want to inspect any documents or material in your possession related to those issues," now, it may be that is a different understanding of the rule to Mr. Khan, but as I say, if there is an issue as to statutory interpretation, the appropriate way of proceeding would be by way of formal motion.

    If I might then perhaps proceed with the other points raised by Mr. Khan. He made the point in relation to Rule 67, that when he indicated that he wouldn't be raising certain defences, that wasn't said on a whim, and that if his position changes, he would say so; otherwise, we should take it as continuing. Well, I would express my regret to Mr. Khan if my comment in any way was taken as giving some kind of offence. All I was merely indicating was that the Prosecution wasn't seeking to bind the Defence by that and left open to the possibility that the Defence's position might have changed. But I'm perfectly happy to proceed on the basis, as Mr. Khan put it, and if we hear nothing from him, we'll take it that nothing has changed in that respect.

    In relation to Rule 68, the question has been raised about a Rule 68 statement. From the Prosecution's perspective, we simply don't understanding exactly what such a statement would be intended to say or who would provide it or on what basis. If one looks at --

  • Mr. Staker, are you talking about 68(B)?

    MR. STAKER: Rule 68 -- yes.

  • 68(B). Because I think that is the rule that stipulates the obligations of the Prosecutor.

    MR. STAKER: Yes.

  • All right.

    MR. STAKER: The rule refers to a statement, but it will be seen that the rule does not refer to the Prosecution actually providing copies of documents or statements to the Defence.

    Now, it's our submission that if we provide the actual documents, that actually goes further than making a statement. If one looks at the wording of the rule, one can imagine that it would be possible to comply with the rule by providing the Defence with a written statement saying, "The Prosecution is aware of the following persons who might be able to give testimony as witnesses that would be exculpatory to the Defence," and list the names of those witnesses; or "The Prosecution is aware of the existence of the following documents which may contain exculpatory material." Now, that, in my view, would be a statement that would comply with the wording of that rule.

    If the Prosecution then goes further, not simply making such a statement but actually providing the Defence with those witness statements and providing the Defence with copies of those documents, it's gone beyond the obligations under that rule. It's simply not clear to the Prosecution what further step this rule would impose an obligation on the Prosecution to do.

  • Mr. Staker, what are you, in fact, saying? Are you, in fact, saying that as far as you are concerned, the OTP has complied with Rule 68(B) by their normal disclosure, without an accompanying statement indicating the exculpatory nature of the evidence? Are you saying that the OTP is satisfied that that's what they've done?

    MR. STAKER: There may be two different issues that are being confused here. One is, when material is disclosed to the Defence, should an indication be given to the Defence that certain material is Rule 68 as opposed to being disclosed for some other reason or under some other rule. As I said in the last two disclosures made by the Prosecution, we have given that indication, and that will be the practice of the Prosecution in the future. And it would be the hope of the Prosecution that that is no longer an issue.

    The other question relates to compliance with the terms of the rule, the obligation to disclose material that's exculpatory. I've given an overview earlier in this Status Conference of what the status of that is. Of course, the rules recognize that Rule 68 is an ongoing obligation. New material continues to come into the possession of the Office of the Prosecutor. As material comes in, it is reviewed, reviewed including for 68 purposes, and disclosure will be made if it is found to fall within Rule 68. In addition, the Prosecution continues to examine other material in its possession and further disclosures under Rule 68 may be made.

    My point is that Mr. Khan said that it's necessary to show that the Prosecution has turned its mind to the question of disclosure. In my submission, the fact that documents have been disclosed, the fact that our current practice is to indicate where material is disclosed specifically under Rule 68, further inherently indicates that the Prosecution has turned its mind to the question.

    Where disclosure is made, covering letters have been provided to the Defence indicating what is in the package of disclosure material that's being made. I would find it difficult to imagine that someone would suggest that when disclosure is made it's simply been a case of trolling through a cupboard and dumping boxes of materials on the Defence. I think the covering letters indicate that this has been material that has been reviewed.

    On that basis, I would simply reiterate: The Prosecution does not understand what further purpose the statement would serve. But further than that, the Prosecution also does not understand who would make such a statement, and on what authority, and what this statement would say, other than the Prosecution has complied with its obligations.

  • You mean under Rule 68(B)?

    MR. STAKER: Under Rule 68(B).

  • You're saying you don't understand who has the obligation under Rule 68(B) to make such a statement? Because, in my view, it's very clear. "The Prosecutor shall, within 30 days of the initial appearance of the accused, make a statement ..." But, like you said, Mr. Staker, it is a statement disclosing the existence of evidence. And then the rule goes on to end: "The Prosecutor shall be under a continuing obligation to disclose any such exculpatory material."

    Now, of course these are issues for a proper application before the Trial Chamber, but I was hoping that in the Status Conference we would at least agree on the obligations of each party and at least comply with and rule out the necessity of these applications. This is the whole point of these Status Conferences; to draw to a close understanding between the parties as far as possible.

    In my opinion, Rule 68(B) is clear. There are no two ways about it. It is not similar to 66. It is not. It deals specifically with exculpatory material in favour of the accused person, and it lays two obligations on the Prosecution. One, within a time frame, 30 days of the initial appearance, to make a statement disclosing the existence of this evidence known, and on a continuing basis, to continue to make a statement whenever this evidence comes up to the Prosecution's knowledge.

    Now, I think what Mr. Khan was saying is that so far -- well, at least until recently, there has not been this identification of exculpatory evidence as such. Everything has just been thrown into the same melting pot and passed over, disclosed under Rule 66. And I can appreciate that this would cause a difficulty for the Defence to sort out what is exculpatory and what is not, out of the entire basket of disclosures.

    MR. STAKER: If I may, Your Honour. It seems that if there is a difference in view on the legal operation of these rules, then it may be a matter that has to be proceeded with by formal motion, unless perhaps that in discussions between the Prosecution and the Defence we can come to some understanding beforehand. But it would be my submission that differences on issues of law, even when it comes to interpretation of the Rules of Procedure and Evidence, are not matters that can be satisfactorily dealt with at a Status Conference.

  • I agree, Mr. Staker. Do you have anything else? I really want to wind up on this disclosure item and to move forward.

    MR. STAKER: The only other point I would address would be the one relating to a disclosure officer.

  • Yes.

    MR. STAKER: Again, there is nothing in the rules about that. It may be that the Chamber does have a power to order that if the Chamber chooses. But it's not in the rules; it's not something that's been ordered in other cases before the Special Court. And while it may have happened in one or more cases in the Yugoslavia tribunal, it's certainly not the normal practice. And there, again, I recall that at the meeting on the 23rd of August with the Deputy-Registrar, the matter was left on the basis that if the Defence wanted to pursue it, they would file a formal motion.

  • Mr. Staker, while I appreciate this adversarial approach to every issue, let me ask you this: Do you see any advantage in the appointment by your office of such an officer? Any advantage to yourselves? Advantage in as far as your disclosure obligations would be handled in a particular way with the existence of this officer?

    MR. STAKER: In our opinion --

  • Do you see any advantage for your office?

    MR. STAKER: In our opinion, no, Your Honour. And that's not said with any sense of wanting to evade obligations or anything of that nature. We do not understand what the role or function of a disclosure officer would be and what the responsibilities resting upon a disclosure officer would be.

    If I've understood correctly, what is being said is that a disclosure officer would sign off saying that that officer had personally reviewed all material for Rule 68.

  • Yes, and sorted it out according to Rule 66, 67 or 68. Basically I think that's what the Defence -- because it is a big obligation, it's a big -- it's a tedious job, and I think this was the spirit in which the Defence suggested that perhaps a specific officer, who is responsible for this kind of assignment, could be appointed. They suggested it.

    I'm aware that the OTP is an independent body. The Trial Chamber cannot order it to change its modus operandi. That is why I'm appealing to you and saying to you, could you reconsider and see if there's any advantage, mutual advantage, in the appointment of such an officer?

    MR. STAKER: Well, if I've understood Your Honour, you're requesting us to give it further consideration. We can certainly do that. I've stated our position, but we're happy to ponder it further.

  • Okay. Please proceed with -- I take it that you're done with your disclosure submissions.

    MR. STAKER: Yes, Your Honour.

  • Thank you, Mr. Staker.

    MR. KHAN: Your Honour, if I may be indulged. Hopefully I'll be very brief.

    Your Honour, my learned friend's quite right that a disclosure officer is not detailed in the rules. But, Your Honour, neither is it detailed in the rules that there is the equivalent of a 65 ter type hearing that the Prosecution accepted to take part in with the Deputy-Registrar back in August in Freetown. That's not in the rules. But as a means of expediting this trial, not wasting court time, focussing the issues, the parties agreed mutually that we would submit to the -- being presided over by the Deputy-Registrar to focus the issues.

    Your Honours, it would not be lost on anybody, never mind somebody -- someone and a team so experienced as that on the other side of this courtroom, that the first time of industrial action by any union is always work to rule. And, Your Honour, if one works to rule, one gets a Milosevic-type hearing. If the Defence insisted that everything be proved, which is their right, which cannot be complained of, we would get a four-year trial.

    But, Your Honour, the parties, in my submission, have an obligation, as ministers of justice, to focus the issues. And, Your Honour, my interpretation of the rules - perhaps it's my Yorkshire and patine upbringing of a tribal people - it's very basic, very straightforward, uncomplicated. The rules basically mean what they say. And they are focused on what? Not some grand complicated theory but on ensuring an expeditious trial and a fair determination of the matter.

    As I mentioned on the last hearing, Your Honour, none of this is rocket science. For my own part, I am personally -- although, of course, filings can fly across the courtroom. For my own submission, matters of common sense can be dealt with summarily, either by way of oral ruling by Your Honours. But, Your Honour, if one descends to simply fighting for basic rights, which really are not a matter of huge controversy, one gets long trials that are needlessly complicated.

    Your Honour, I'm grateful for my learned friend, and it's a great courtesy that he and his team have extended, that the last two disclosures have detailed what is Rule 66 and 68. Your Honour, I'm not binding them and saying that's an acceptance of their legal responsibility to do so. But it is surely indicative of a preference for such a precise type of disclosure. And all I would ask is that they do the same for the 17th of May disclosure as they have accepted to do in the two more recent batches of disclosure.

    Your Honour, I won't see it to go further at the moment. It is my submission that Your Honours, as trial managers, as well as a tribunal of fact and law, do have the power to make orders on the Prosecution. It is precisely on that basis that your brother judges in the Yugoslav tribunal made an order on the Prosecution to appoint a disclosure officer in the case of Sefer Halilovic. That's been mentioned before.

    Your Honour, I do accept: The Prosecutor can't do every single task himself, but he may delegate that which is specifically provided for in the rules. Your Honour, the whole purpose of a disclosure officer would focus on exactly what my learned friend pleaded about: Who would give an exculpatory statement? Well, if the Prosecution appointed a disclosure officer, it's a matter for them. That person, it would seem as a matter of common sense, would be the perfect person to sign off and say, "At this moment in time, as far as the disclosure and the documents in the Prosecution's possession is concerned, they have disclosed everything exculpatory." It would prevent, and I have marked it up very clearly both today, Your Honour, and at the status -- at the hearing in Freetown, it will prevent later on other allegations being made and the atmosphere of the courtroom descending into one of acrimony.

    Because if the Prosecution, it turns out, have documents at this moment in time which are exculpatory and they are not disclosed in time, it has the potential to cause a great miscarriage of justice. And the Defence, whatever personal affection they have for the Prosecutor and his team, will have no option but to make the most strenuous complaints and seek the greatest measures in response thereto.

    Your Honour, those are my submissions in response to this issue, and I'm grateful for the time.

  • Thank you, Mr. Khan.

    To both parties, I just want to close this particular issue this way: Just to remind you that rules are really handmaidens of justice. They are not meant to bind us, but we are supposed to use them to get the trial going and to prepare for the trial in a way that will enhance justice on both sides.

    But also to say that if and when the Defence feels that there is a need for a Chamber order, then I would encourage them, by all means, to make the necessary applications to the Trial Chamber, the full Trial Chamber, and that would not be appropriate in a Status Conference.

    At the same time I want to encourage the Prosecution to administer justice by ensuring that these disclosure obligations are fulfilled in the best way that they possibly can in order to avoid a proliferation of applications from the other side.

    I want also to call upon the OTP to consider yet again the possibility of a disclosure officer, whose role may include sorting out these disclosures in an orderly way. That, again, will expedite matters, will expedite investigations, and will assist the Defence in the preparation of their case eventually.

    It seems to me there were two sticking points on the part of the Defence, and that was the filing of evidence pursuant to Rule 68(B) and also the filing of exhibits or -- yes, the disclosure of exhibits.

    Now, here on the exhibits, I have to agree with Mr. Staker's submissions, observations, that there are -- there is a time to file a list of exhibits, under Rule 73 bis (v), and that is before the Pre-Trial Conference. And I suppose this is where the Trial Chamber may help, well before the Pre-Trial Conference, to perhaps issue certain orders, if necessary. But we're not going to do it on our own accord. It may help for this list of exhibits to be filed fairly early, fairly early, to enable the Defence to put into operation any of these rules, especially Rule 66(A)(iii). Because once you have this list of exhibits indicated, you may then be in a position to say, "We want to look at this, this, this and the other."

    But the right -- the obligation on the Prosecution, I think, is with relation to the filing of a list of exhibits under 73 bis. And, again, these are issues that the Defence will have to accompany with written applications, appropriate motions made before the whole Trial Chamber. But at least I've noted the concerns and I'm sure my colleagues, too, will address them as a whole Trial Chamber.

    I think I want to leave the disclosure issue at that and to encourage the parties to continue working, remembering that, apart from representing your clients, you are also officers of the court, amongst other things.

    Mr. Khan, I see you on your feet, but I really want us to get on to the third agenda item.

    MR. KHAN: Your Honour, that was just a courtesy as you were speaking.

  • Is it really necessary, Mr. Khan?

    MR. KHAN: Unless you said otherwise, I thought I would stand whilst you were addressing us.

  • We really must run.

    The third agenda item which I thought I would very briefly address is a quotation from the transcript of the first Status Conference where the Prosecution was quoted as being "in the process of preparing proposed agreed facts and matters of law for the Defence's consideration and we're planning to provide it to the Defence soon."

    Could I hear from the OTP, if there's been any progress in this direction?

    MR. STAKER: Yes, Your Honour. This was another matter that was discussed at the meeting with the Deputy-Registrar on the 23rd of August. The anticipated time frame is that the Prosecution will provide a list of proposed agreed facts by the end of October, and it's envisaged that then throughout November there would be a time for negotiation between the Prosecution and the Defence to see what may or may not be agreed.

  • So should I record towards the end of November, the --

    MR. STAKER: End of October, to provide a list to the Defence.

  • End of October.

    MR. STAKER: And then the month of November would be a period of negotiations.

  • Mr. Khan, would you like to comment on that at all?

    MR. KHAN: Your Honour, I'm happy to see what my learned friend puts forward, and that of course will dictate the response from the Defence. But, Your Honour, I did mention in the last Status Conference, as well as previously perhaps, that there may be basic agreed facts, such as, for example, that my client was the President of the Republic of Liberia, that can be agreed without any difficulty whatsoever. There may be more complex and subtle agreed facts that cannot be prudently agreed by the Defence until the Defence investigation is far more mature than it is at the moment.

    Your Honour, with that caveat, of course, I am happy to look at whatever the Prosecution is put forward in the spirit of cooperation, in a mutual bid on refining this issue, so that this trial can properly be dealt with in the interests of all parties.

  • Of course I do appreciate also, Mr. Khan, that if the OTP intends to supply you with this list by the end of October and expects you to agree or disagree by the end of November, that is not adequate time.

    MR. KHAN: Your Honour, I have no idea how long the list is going to be. If the list is simply basic, that Liberia is an independent state, as is Sierra Leone, my client having been the President, I can agree that today. Your Honour, if it's more complex, of course I can't do it by November.

    This is a case of huge complexity, and, Your Honour, perhaps this will be addressed a little later, it is a case of huge complexity on many levels - political as well as legal as well as factual - and, Your Honour, it would be extremely difficult to agree everything at this stage. But perhaps the best option is the parties agree whatever they can as we go on. Some things we can agree now, and as the investigation progresses, we can agree other things and perhaps the Prosecution can agree other things as well.

    In that spirit of cooperation, perhaps this trial will be dealt with in a manageable and coherent manner. That's certainly the intention of the Defence, and I believe of the Prosecution as well.

  • Thank you, Mr. Khan. I think that is well put. Indeed, you know, the parties can agree on even issues. Things that are in issue, you can agree upon that. And the whole point of agreeing on facts and even issues, matters in issue, is, again, to save trial time and argument during the trial, and to focus proceedings in a given direction, to focus your evidence in a given direction. Because if, at the beginning, you know what issues you have to address, then you know what evidence to call and what evidence not to call, you see. The whole point is to focus.

    Even with this proposed list of agreed facts and issues, et cetera, there is no hard and fast obligation on the Defence to agree. It's one of those things that parties do to move the trial forward.

    MR. KHAN: Your Honour, I'm very grateful for that. The Defence, we are looking forward to this trial. We are looking forward to finishing this matter, because it's the intention of the Defence, at the end, our client will be acquitted. So we're not going to delay matters. We're not going to grandstand. We are going to play this very straight because we have a very real legal defence.

    But, Your Honour, it goes back, in fact, to Your Honour's insightful comments to a difficulty faced by the Defence. At this stage, largely the Defence is reactive to the Prosecution. They are bringing the case, and we do need to know what the case is. In fact, the case is not that clear, apart from the broad-brush approach. It goes back to the scope of the disclosure which is much wider than simply the indictment.

    So these are matters that require refinement by the Prosecution in consultation with the Defence. These were alluded to in quite some detail in the last hearing in Freetown. And perhaps when matters are more -- the issues are narrowed by the Prosecution, the Defence will have a better idea as to the Prosecution's theory of the case, what evidence they are using for what purpose, and that will help the Defence respond in relation to what can be agreed, when, and how.

    Your Honour, I'm grateful.

  • I think this really brings me to the issue of a trial date. It's good that Mr. Khan says they are looking forward to this trial, and I think the time has come for the parties and the Court to think about a provisional trial date. We cannot continue to hold these Status Conferences without focusing in any direction.

    I'm choosing my words carefully here. I'm talking of a provisional trial date, meaning a trial date that we can focus upon and agree upon as a tentative start to the trial, and which can work as a gauge and as a focal point for us to focus our activities.

    Now, I'm aware from the past Status Conferences and submissions of the -- the first Status Conference, I beg your pardon, that the Prosecution indicated that they would be ready to commence this trial as early as February, end of February. The Defence also indicated that they were not in a position to commence this trial, and that the earliest they could even think of was July of 2007.

    Now, whilst I appreciate that there is this big divergence in time, I am mostly concerned about the rights of Mr. Taylor to be tried without undue delay. By the end of February, he will, I think, have been in custody for over one year, and I think beyond a year it begins to become inordinate delay. And so I think it is only right and proper and in the interests of justice that we should agree upon a tentative trial date during this Status Conference.

    My colleagues in Freetown, the Judges of Trial Chamber II, are solidly agreed that a tentative trial date should be set towards this end, to help us focus our activities or the parties' activities.

    The second thing that I want us to achieve during this Status Conference is to set out an action plan focused towards that tentative trial date, an action plan where parties do certain things by a certain time. Again, it's all intended to assist the parties to diligently carry out their obligations and to focus towards the beginning of this trial.

    Now, I know that this was one issue that the parties did discuss in their meeting, I think in August, and had a few views exchanged. Perhaps, for the record, I want to hear the views of the Prosecution on the start of this trial date -- on the establishment of a provisional or tentative trial date, and then I will hear the other side as well, before I tell you the thoughts of the Bench. In other words, is it a good idea? And when do you think this tentative date should be?

    MR. STAKER: Your Honour, the Prosecution has, in the past, made known its views on its desire to see the case begin quickly. You've mentioned the Defence's position that they need more time. The Prosecution is certainly of the view that there should be no unreasonable delay. It may be a matter of disagreement, to a degree, between the Prosecution and the Defence as to what time is reasonable. At the same time, the Prosecution is also conscious of the right of the Defence to adequate time to prepare.

    I have to confess that in coming to this Status Conference, it had been our feeling that it may be premature to fix a date at this hearing today simply because the anticipated negotiations between the Prosecution and the Defence were envisaged, as I say, for end of October and through November. I think that may be a very telling time that will indicate whether there is great scope for agreement and that the issues may be considered -- the issues may narrow significantly.

    It may also be - and I certainly hope this won't be the case but we have to be prepared for the eventuality - that it may turn out that there is less scope for agreement than we hope for and that the case will be somewhat larger than we would have liked.

    For that reason, it is perhaps difficult to have any clear idea today. On the other hand, if the Bench were inclined to try and fix a tentative date to focus minds somewhat, that might have the desired effect, indeed, of focusing minds.

    Now, the date mentioned by the Prosecution in the past was February next year. The Defence has been speaking of July. It may be that there is some middle ground. April was a date that was mentioned in the meeting with the Deputy-Registrar. It may be that a date in April tentatively might be something that could focus minds.

    I don't know if I can say much more than that, Your Honour.

  • Thank you, Mr. Staker.

    Mr. Khan, is it a good idea to focus --

    MR. KHAN: It is a good idea. Coming from Your Honour, I will accept it immediately. But it is the Defence submission that it is very useful to have an indication as to the commencement date of the trial.

    Your Honour, every case of course is different, counsel appearing in every case is different, and there is a unique dynamic to every criminal case. All of these are factors, these are imponderables, these are different ingredients that give the unique flavour to every single trial that takes place. Your Honour perhaps is in a much more objective position than the Defence to thus far objectively make a -- come to a view as to the conduct of the parties and intention of the parties to really narrow these issues in the trial.

    Your Honour, I should say at the outset that previously the Defence had said July on the last occasion, not before July. Your Honour, for the reasons I will give with your leave in a moment, it's the Defence's considered opinion now, after managing with a great deal of work to analyse and compartmentalize Prosecution evidence into various categories ourselves, that a -- and take instructions from our client, at least commence taking instructions from our client, the Defence submission is that the commencement date of this trial should be September of next year.

    Your Honour, I do understand fully that there are various imperatives at work here, financial and political. But, Your Honour, the only consideration that Your Honour and her colleagues will bear in mind is the fair conduct of this trial.

    It is my submission, and assuming good faith on both parts, on the part of the Prosecution and the Defence, that one should not get overly preoccupied by the commencement date of this trial. One should rather look at the conclusion date, the date when it is anticipated this trial will finish.

    It is my submission that if the Defence are given proper time now, pre-trial, there is every expectation that the trial of Mr. Taylor will be concluded by September or October of next year -- of, sorry, 2008. Your Honour, that is, for a case of this complexity, a very significant achievement.

    Your Honour, I will not going into the comparative analysis of the various other cases before international courts. I mentioned on the last case the case of the AFRC, which Your Honours are intimately familiar with, of one year and 11 months pre-trial; the case of Chief Hinga Norman, more than a year and several months. These were much simpler cases, territorially confined, more or less, to the Republic of Sierra Leone. This case is far wider in its territorial scope, in the allegations that have to be faced, and the investigative demands that are placed not just on the Prosecution but particularly on the Defence.

    Your Honour, as a matter of international law, in my submission, the right of adequate time and facilities is an essential component of the right of a fair trial. Article 17 of the rules finds not just echo but almost verbatim reproduction in Article 14 of the CCPR; it finds form in Article 21 of the Yugoslav statute; 20 of the Rwanda Statute; and I think it's 67, perhaps, of the ICC Statute. Yes, 67(1)(d) of the ICC Statute.

    So, Your Honour, it's common ground between the parties that it's an extremely important right. There is an independent right, of course, to a fair and expeditious trial. Both these rights are to the benefit of an accused. They are not whips to beat an accused with. They are for the benefit of pre-trial preparation.

    Your Honour, I have mentioned previously -- I don't want to go on ad nauseam about the difficulties faced in the, I think, fourth months into a given disclosure on the 17th of May, a huge amount of disclosure presented perhaps not in the most organized or user-friendly or accessible manner. Matters have been complicated by needless issues but essential issues, issues of transfer, changing the seat of the Court, issues of access --

  • Mr. Khan, we've been down this road before, and I think your submissions were quite taken in the -- during the first Status Conference in this regard.

    All I really wanted was an indication from you or from the Defence as to what they thought about a provisional trial date at this stage. I think I've understood you and the submissions at this stage, and we're still on this one issue. I haven't even gone to the action plan. But on this issue of a tentative trial date, do I understand you to say that you are not in favour -- you're in favour of a tentative trial date but closer towards the end of the year, 2007.

    MR. KHAN: Your Honour, I'm totally in favour for a tentative trial date to be indicated now. The trial date I'm looking for, when the Defence say we are ready to commence this trial, given the scope and complexity, is September of 2007.

  • Thank you, Mr. Khan.

    Let me just say this on these dates that we are juggling around: I note that before the accused was afforded a Defence team, a proper Defence team, Mr. Khan, you submitted that you would have been comfortable to start in July. I'm surprised that now that you have a Defence team you are shifting it further towards the end of the year, and that bothers me somewhat, as a start date. But I suppose since I'm talking about a tentative trial date, I might as well rule on this matter. Because my colleagues in Freetown and I did sit, and what I am about to say is not entirely my own ruling, but this is the feeling of the Trial Chamber.

    We are of the view that this is the right time to fix a tentative trial date, more importantly to focus the activities of the pre-trial stage towards this date. I've carefully called it a tentative or provisional trial date because it is subject to adjustment. It is subject to adjustment for good cause. We are prepared to adjust it. It is not just a loose date that I'm going to throw on the table.

    MR. KHAN: Right.

  • It is a tentative trial date that we would really like to keep and we would really implore the parties to work towards. But if, for good cause, there is good cause shown or exhibited, the Trial Chamber is prepared to be very flexible about this date.

    MR. KHAN: I'm grateful, Your Honour.

  • I want to assure you of this.

    MR. KHAN: Before any ruling, of course, as a matter of law and fairness, of course I would ask to make submissions as to the likely start date.

    Your Honour, I stopped, obviously, because the initial issue is simply whether or not you wish today to give an indication, however preliminary and however flexible, as to a start date. But, Your Honour, it would be wholly improper, in my submission, to fix a start date without hearing submissions from the parties as to the difficulties faced.

  • We're talking about different things, Mr. Khan. I am talking about a provisional start date. You are talking about a start date. Now, it is my understanding that the parties themselves cannot agree on a start date. The Prosecution is talking February; the Defence is talking September --

    MR. KHAN: Yes.

  • -- a date in September; and the Bench is talking a provisional trial date somewhere in the middle.

    MR. KHAN: Yes, Your Honour, I didn't -- perhaps it was my total lack of eloquence, for which I apologize. I understood exactly what Your Honour was doing. Before even a tentative trial date is set, it's my submission that, as a matter of law, it would be perverse and it would be a fettering of discretion, which ordinarily in any domestic system would be judicially reviewable, for a judge to set even a tentative trial date without hearing submissions from the parties as to how reasonable that is.

  • Mr. Khan, I have given you the last 20 minutes to address me on a tentative trial date, and you have taken me into submissions that are clearly recorded in the first Pre-Trial Conference and that's why I stopped you. I said I've heard all that before. Now, if there is anything additional that you want to say, please say it.

    MR. KHAN: I'm most grateful, Your Honour. I'm most grateful.

    Your Honour, the Prosecution have given, as of the 17th of May, approximately 32,000 pages of disclosure. That's, of course, continuing.

    Your Honour, on a basic analysis, to try to give some form, to try to give some expression to the difficulties and the task facing the Defence, I would seek to give some semblance of empirical construction to the scale of the task faced by the Prosecution.

  • Mr. Khan, I must stop you in your tracks. I have all this on record in the proceedings of the first Status Conference.

    MR. KHAN: Your Honour, no --

  • Yes, I do.

    MR. KHAN: -- with respect.

  • Unless there is additional pages that you're going to refer to.

    MR. KHAN: Your Honour --

  • But please do not take me back, because we are time-constrained.

    MR. KHAN: Yes.

  • And there is the issue of the action plan which is equally important.

    MR. KHAN: Your Honour, I will endeavour to be exceptionally brief.

  • Let me say this, Mr. Khan: I am not in any way disputing the task before the Defence that the Defence have to comply with. That is how I predicated my statement, by saying I appreciate the Prosecution's side; I also appreciate the Defence side.

    MR. KHAN: Of course.

  • And that's why I called upon you to express views as to when you would be comfortable to begin.

    MR. KHAN: Yes.

  • Now, I'm not telling you when you should begin or that you shouldn't begin in September. But I'm calling upon you to see from this Bench's side that I have a duty, representing my colleagues, I have a duty to take charge of these proceedings --

    MR. KHAN: Of course.

  • -- and focus us all towards a certain focal point.

    MR. KHAN: Indeed, Your Honour.

  • That's all I'm saying. I'm not, in any way, saying, "The Defence is lazy; the Defence hasn't got time; the Defence will not be given time." That's not what I'm saying.

    MR. KHAN: Your Honour, I understand that totally and there's no misunderstanding. And I know Your Honours would be the last to produce a date like a rabbit out of the hat, on a whim. Of course it would be considered. But, Your Honour, there are further details to give -- that have to be taken into account, in my submission, in fixing a reasonable tentative start date.

    Your Honour, if one even spends five minutes a page on 32,000 pages, that's 2,666 hours, or 333 eight-hour working days. Your Honour, if the Prosecution are saying that even a third of that is irrelevant, that requires -- say, a third of it, 10,000 pages, on a further review of 10 minutes a page, not unreasonable, a total of 561 working days.

    Your Honour, it's a huge issue. This issue is not simply one, in my submission, in my most emphatic submission, with respect, an issue of trial management. It's not an issue of case management and your duties there. It's a matter of essential and fundamental fairness.

    Your Honours, this was raised in the hearing before the Deputy-Registrar, and it was then that the parties were told that April was a preferred start date of the parties. Your Honours, the Defence submission now, as then, is that it would be extremely surprising for any reasonable Bench to have, in good faith, come upon such a date without hearing submissions from the parties.

    Of course there is a political side of this. The Court wishes to be seen to be moving. It needs to obtain funds --

  • Mr. Khan, I'm going to stop you again in your tracks. Did you have a chance to make submissions with regard to this issue in your meeting before the Deputy-Registrar --

    MR. KHAN: Your Honour --

  • -- regarding a tentative trial date?

    MR. KHAN: Your Honour, it's not a case of submissions to the Deputy-Registrar. I put it forward, and, Your Honour, you have a summary, although not the full transcript.

  • Yes, I do. I do, you see.

    MR. KHAN: Yes, but not the full transcript, Your Honour.

  • I don't need the full transcript. I'm just saying this -- but the way you're going on, it's as if you're challenging my right and duty to channel these proceedings towards some kind of order --

    MR. KHAN: Your Honour, never.

  • -- you see?

    MR. KHAN: Your Honour, never.

  • So it seems to me, Mr. Khan, that you're not saying anything new that you did not say either in that meeting or in the first Status Conference; namely, that you have these over 30,000 pages to plow through, of evidence to plow through. And that is not new. And we appreciate that. It's not a mean task. Nobody is demeaning the task of the Defence.

    MR. KHAN: Your Honour, the Human Rights Committee of the CCPR - I think it's General Comment 13 - discusses, as Your Honours well know, that what amounts to adequate time and facilities depends upon the complexities of the specific case faced. Your Honour, to set, as a matter of judicial discretion, even a tentative trial date, the complexities must be fully understood. That's my point, Your Honour. Of course, after understanding the points --

  • Of course we do understand that, Mr. Khan. We do understand. Like you said, nobody pulls a date out of a hat.

    MR. KHAN: Yes. Well, Your Honour, I've said as much as I can say. I would be loathe and one would hope, of course, that the April start date mentioned by the Deputy-Registrar, absent any submissions from the parties, is not going to be simply put forward because of non-judicial concerns and fund-raising concerns.

    Your Honour, with that I make no further submissions.

  • Mr. Khan, this date, and I wasn't in the meeting, but I understand that this date was arrived at in the presence of both parties and after debate by the parties. It was a proposal. The Deputy-Registrar did not set a date.

    MR. KHAN: No, no date was --

  • And according to the minutes we've been given, I did not find an alternative tentative date from the parties.

    MR. KHAN: Your Honour, there's no allegation that a date was fixed by the Deputy-Registrar. There is no allegation of your powers. Simply as a matter of candour, the point I was raising is, prior to any submissions being made by the parties, the parties were informed, without any understanding of the complexities of the Defence, that the initial preference for the Judges was April. In my submission, if that is going to be continued with, absent any submissions of the parties, that amounts to a fettering of discretion.

  • Mr. Khan, the whole purpose of that meeting at that time was to enable you to air your views so that we would save time at this Status Conference --

    MR. KHAN: Yes.

  • -- around that proposed date.

    MR. KHAN: Yes.

  • And I'm glad that the Deputy-Registrar did mention to you that that, indeed, was the date the Judges were proposing. We expect -- I expected to see an alternative, two, three, other alternatives, you know, in the minutes, but there weren't any.

    So, to cut this long story short, I have heard from the parties and I've taken into consideration the fact that the --

    MR. KHAN: Your Honour, I do apologize for the very great discourtesy. I do apologize. Your Honour, I don't want to take time up further. My last submission on this issue is, perhaps, another alternative is that, after making a finding that an initial indication of a start date is relevant, Your Honour may deem it appropriate to require submissions from the parties as to when that date should be, and after hearing those submissions fully, you can make a judicial determination.

    Your Honour, that's my brief submission. I do apologize.

  • Okay. I'm going to conclude this matter this way, that is the matter of the tentative start date in this way: I have heard from both sides the preparedness or the readiness of the parties to begin at various dates next year, to begin this trial. The Prosecution, on the one hand, has proposed that they are ready to begin any time after April -- sorry, after February of 2007. The Defence, on the other hand, has now shifted their start date further from July to September of next year.

    Now, I am concerned about the need to try Mr. Taylor without undue delay. I'm also well aware of the fact that he's been on remand for a long time, and if we were to start in February, he would have been on remand for a year. I'm also aware of the fact that, up until probably this week, the Defence has not had a full Defence team to enable it to prepare its case adequately.

    So it is my view, and that of my colleagues, that a period of six months from the time that a full -- from the time that a contract has been signed providing Mr. Taylor with the Defence team, and I'm taking that to be end of September, say, 30th September effectively, and I'm saying that from the 30th of September this year, we consider that the Defence is in a position to work, to investigate, carry out investigations fairly comfortably, as is envisaged under the Statute and the rules. I'm also of the view, as are my colleagues in Freetown, that six months would not been unreasonable time to be given to this Defence team - that would be October, November, December, January, February, March - to fairly get on with the case and do their investigations.

    Therefore, I will reiterate a tentative trial date of 2nd April, Monday, 2nd April 2007.

    Now, I emphasize the word "tentative". This is a tentative trial date which is going to assist the parties and the Bench to work towards the final trial date. It is flexible; it is adjustable. But I'm just calling on the parties to focus on this date and to focus your activities towards this date. We feel that six months afforded to a full Defence team would go a long way in preparing them towards a real trial date or the final fixed trail date.

    So the date that I have set is the 2nd April 2007.

    Which now brings me to the final item of the agenda, or penultimate depending on (A) or (B), and that is of an action plan. Again, the parties are familiar with the action plan tabled by Mr. von Hebel, the Deputy-Registrar, on our behalf, which we had wanted you to look through and give your views or try and agree upon certain dates within that meeting.

    Definitely these are activities that have to be carried out under the rules by the various parties. And all this action plan does is to lay certain time frames, deadlines by which everybody is supposed to have complied with certain activities, focusing on the tentative trial date. And I'm hoping that at the end of the day, though you may not like the tentative trial date, it will all work out for everybody's good. At the end of the day, we will get this trial moving, even if we have to shift the trial date forward.

    So I want to read this list out without putting the deadline dates in, because I think the deadline dates may be for debate, but also there may be aspects that you want to insert within this action plan or work plan for the parties that, for some reason, we may have inadvertently overlooked.

    Of course, needless to say, the rolling disclosure continues throughout, so there's no -- it sort of is everywhere. It continues. There's no time frame for it.

    But the provision of a provisional witness list with details as to crime base; that is viva voce witnesses vis-à-vis 92 bis evidence. And I really would appreciate Mr. Staker's input in this. The 22nd of September, that is today, do you think that, as far as an action plan is concerned, you would say that the OTP has complied with this particular action?

    MR. STAKER: Yes, Your Honour. Before the hearing today, as I mentioned, a provisional witness list was provided to the Defence. I appreciate Mr. Khan hasn't had an opportunity to look at it yet. But the Prosecution's understanding is that it is the witness list that was envisaged at the meeting with the Deputy-Registrar, with the one qualification that it does not indicate which witnesses we envisage would be called live and which would be 92 bis. I gave the reasons why we thought it was premature to add that information at this stage.

  • Mr. Khan, any comment on that?

    Sorry, did you hear what I said, or you didn't? I was saying could you, Mr. Khan, comment on that first item if you so wish?

    MR. KHAN: Your Honour, no, not at this juncture. I'm grateful.

  • Thank you. So maybe we can adopt this 22nd of September as the time line for that first item, provisional witness list with details as to crime base, live.

    Mr. Staker, you're saying, in effect, that the words "with details," you want to delete those because you're not practically able to do that at this stage?

    MR. STAKER: Well, Your Honour, if we take off the wording in the minutes of that meeting with the Deputy-Registrar, we would delete the words "live/92 bis" et cetera. The list we provided indicates whether witnesses are linkage or crime base witnesses or experts and has included a division into a core list and backup list.

  • Okay. So you want to adopt the words you've just said.

    MR. STAKER: I think that would be --

  • Because we'll just take the transcript and quote you in there.

    MR. STAKER: Yes, okay. We're working -- we're describing ex post facto something that's been done.

  • I understand. Thank you.

    Now, the proposal for agreed facts to the Defence, this is the date, Mr. Staker, you've cited as end of October, this item.

    MR. STAKER: Your Honour, that's not what was in the table of the minutes, but that is reflected later in the minutes, as I understand, agreed between the parties.

  • So we could substitute a date, the 31st of October instead of the 22nd. That does take us a bit far.

    MR. STAKER: In paragraph 17(B) of the minutes of that meeting, it's indicated that "it had been agreed amongst the parties that OTP will present a proposal for agreed facts by the end of October, with negotiations to follow in November."

  • Okay. So that date for the second item is changed to 31st October, and immediately after it we could insert an item, "negotiations between the parties by November 30th." So you can use the whole month of November, but the dates that we're putting are sort of the last day for doing a certain thing. By November 30th, negotiations between the parties as to the agreed facts, et cetera.

    Then the fourth item is this creature called the defence case statement, relating to Rule 8.

    Mr. Agga, do you want to comment on this?

    MR. KHAN: Your Honour, he's a prosecutor.

  • Oh, I beg your pardon, Mr. Khan. Mr. Khan, I am so sorry.

    MR. KHAN: Your Honour, not at all.

    Your Honour, this will be considered in due course. As the Defence have submitted previously in relation to agreed facts, it will not be prudent or professionally responsible to produce a case statement until the investigation is at a far more mature stage and the Defence have taken full instructions. But, Your Honour, whenever the Defence is able, prior to trial, to produce a better understanding in a pre-trial brief, for example, the Defence, of course, will do that. But, Your Honour it's not the intention at the moment to produce a case statement at all.

  • I suppose we could delete this item. I propose that we delete it from the action plan, or simply say that the exercise could be ongoing. I don't know. What do you prefer?

    MR. KHAN: Whatever pleases Your Honour.

  • Okay. Perhaps we'll leave it in just to remind everybody that this is an item -- that this is a relevant action on the part of the Defence. So we'll leave it in and simply write the words "ongoing" in the deadline. No deadline, "ongoing."

    The second Status Conference item could be deleted because it's happened.

    Now, there's a proposal to have -- to hold a third Status Conference in the month of November, in the month of November --

  • [Judge Sebutinde and legal officer confer]

  • Now, I've been cautioned that the recording of this needs to -- we need to wind up to a close. I have a few minutes.

    I want to propose the third Status Conference sometime in the course of November. Now, I'm unable to set a date because it will depend on the court management of the ICC, and this is a matter that has to be determined between the court managers of the Special Court and of the ICC. So there will be a Status Conference, a third Status Conference in November, but the parties will be notified about a date. But you could, for the purposes of this time line, say, by 30th November latest, by 30th November, there would be a third Status Conference. So it will be end of November.

    Now, Defence notice of special alibi, Mr. Khan, you want me to delete that?

    MR. KHAN: Your Honour, as stated previously, yes, it's irrelevant.

  • Yes. Now, pre-trial brief pursuant to Rule 73 bis.

    MR. KHAN: Your Honour, it's my submission, all other matters, to save time for any other business, all other matters perhaps can be dealt with at the next Status Conference. I think it's perhaps premature for those matters to be dealt with at the moment.

  • No. The purpose of this exercise is to draw an action plan.

    MR. KHAN: All right.

  • The purpose is to draw an action plan and to focus on the date we have set for ourselves. I cannot leave this for another day.

    MR. KHAN: Your Honour, as you please.

  • So there is the pre-trial brief. Mr. Khan, you should be interested in this because this is the one that gives you disclosure of the list of exhibits. And I think the date here is December 2006. I don't think it's a bad proposal, but we could shift it forward to November, 30th November.

    MR. KHAN: Your Honour, yes. Even earlier than that. The pre-trial brief I'm not overly concerned about; the exhibits I am. There is a distinction.

  • Mr. Staker?

    MR. STAKER: Your Honour, the view of the Prosecution, I think, is that it is perhaps a bit premature at this stage to be discussing the subsequent procedures. As was indicated before, the month of November was the period envisaged for negotiations between the Prosecution and the Defence. What happens in that month may prove very crucial. I know Your Honour has said negotiations will be ongoing. I think it's inevitable that negotiations will be ongoing. But I think if, in the month of November, it's possible for the parties to really focus on this and see by the end of the month what progress has been made, it will be in light of that that we would all be in a much better position to look at the road ahead.

    What I would propose - of course I'm entirely in the Bench's hands - is that the next Status Conference might be some days later; a date might be, for instance, the 8th of December. That will have given the month of November for negotiations to take place. It would mean that at the next Status Conference we would have a much clearer picture of where we are. And in the light of the negotiations, it may be that the Defence and the Prosecution have found if not a lot of common ground, at least some, which would point the way ahead.

    Our submission would be that perhaps it is premature to fix dates for pre-trial briefs and so forth at this Status Conference now.

  • Okay. Thank you, Mr. Staker.

    I really must bring this to a close. I've been warned that the audiotapes are about to close.

    Anyway, I will not set a date for the third Status Conference, but just to say that it will be held sometime in November or December. I appreciate the efforts between parties to talk. But I will relay this to my colleagues, who had asked me to fix a tentative date in November, to say that the parties would prefer December. And, in any event, the Trial Chamber will issue a written order on this.

    I want to thank the parties --

    MR. KHAN: Your Honour, I do apologize. You did say at the outset that the last item on the agenda was any other business. Your Honour, I would ask for time, for five minutes, on any other business as promised at the outset.

  • In that case, I will -- I've been asked by the court management to adjourn this meeting for five minutes for them to be able to adjust the tapes. As you know, this transcript is really important.

    MR. KHAN: I'm most grateful, Your Honour.

  • I wouldn't want us to conduct any business that is not recorded.

    MR. KHAN: I'm grateful.

  • So maybe we will adjourn. It is exactly 4:00. We will adjourn for five minutes, and when we come back, we will handle other business. Thank you.

    --- Recess taken at 4:00 p.m.

    --- On resuming at 4:08 p.m.

  • Good evening, once again. We are on the last agenda item, which is any other issues that the parties wish to raise that are pertinent to the case.

    Mr. Khan, shall I start with you -- incidentally, I don't intend to protract the proceedings too long. We've already sat for two hours, and I really don't intend to go on for another two hours.

    MR. KHAN: Your Honour, you've heard enough of me today, I do understand that, and I can see you've also seen and heard enough of me today. Your Honour, I will try to be brief.

    The only other business, in fact, relates to an application to reconsider the decision to set a tentative trial date. Your Honour, the Prosecution has had five years, they've had five years to investigate this case, they've had --

  • I didn't quite catch you. You said an application for what?

    MR. KHAN: To reconsider the decision to set a tentative trial date. Your Honour, I did make a submission earlier that the order, perhaps, instead should be to hear submissions from the parties in writing and to adjudicate after you have been fully informed as to a start date.

    Your Honour would be the last person I know, being practical and principled, to set a start date which has no consequence at all. It must mean something, however tentative.

  • Mr. Khan, I have not set a start date. I have set a tentative start date.

    MR. KHAN: You did.

  • And the purpose of that date is to focus our work plan and our organization towards a certain focal point. That start date is very fluid.

    MR. KHAN: Indeed. Your Honour, I'm most grateful for that.

  • I am surprised that you are -- are you making an oral application for review or what?

    MR. KHAN: Your Honour, I am making an oral application to reconsider setting a tentative trial date. Your Honour, it has to be borne in mind under the equality of arms principle that the Prosecution have had five years to investigate this case. Of course they're ready. They haven't been twiddling their thumbs in Freetown at the public expense. Of course they're ready. They spent three years since the indictment. The Defence are simply not ready.

    Your Honour, one can't understand this rush to judgment. There is, and we are operating -- it would be blind and untrue to deny we are operating also in a political environment. We saw how precipitously the Security Council acted. But, Your Honour, there must always be a wall between political pressure or financial pressure and the halls of justice. And, Your Honour, who is maintaining that wall? Or, with a nod towards the Netherlands, who is maintaining that dike, keeping out this tide of power from rushing over and flooding and silting up the rivers of judicial authorities? Your Honour, it's you and your colleagues.

    Your Honour, I do submit that there are very good reasons, at the very least, to vacate your order of setting a tentative trial date, and instead - there can be no prejudice - simply making an order that you receive submissions from the parties as to a tentative trial date.

    Your Honour, I don't want to belabour the point, but Your Honour herself has said that prior to hearing submissions, Your Honour and her colleagues came to an April start date. That's without hearing submissions from the parties.

    Your Honour, the Defence's willingness to submit to a procedure which is not in the rules, a 65 ter procedure, should not, in all fairness, be used as a stick to beat the Defence with.

    Your Honour, sometimes, going back to my initial comments, parties need to be pushed; sometimes, Your Honour, there is such cooperation, such a willingness to focus, that it has the opposite effect.

    As I mentioned, Your Honour, the first form of industrial action is working to rule. The Defence have indicated -- they have not filed frivolous motions, we have not made descendent, making this proceeding a media circus. There's been no empty filings before the Court to waste court time. We are conducting a very serious, very diligent, very professional defence in the interests of our client.

    Your Honour, the bar means something. And when counsel makes a submission detailing empirical evidence detailing a disparity in time between the Prosecution, five years, and, May, getting disclosure, even when the Prosecution accept exculpatory evidence has not been sorted out, to rush to judgment in some vain attempt, on at least one view, to satisfy public opinion that the Court is moving is unfair and unnecessary and has the potential for a grave miscarriage of justice, and, more practically, changing the dynamic in the courtroom from one of cooperation to one of needless adversarial challenge.

    Your Honour, all these are pertinent and important matters that should exercise the mind of a Chamber, in my submission, and Your Honour in particular, in deciding what is appropriate in a given context. There has been an immense amount of cooperation and goodwill between the matters.

    But simply to demand at the moment and say that April is a tentative start date, when there is no chance whatsoever that any professional Defence counsel, aware of this case, would start in April, is simply unnecessary and pointless and otiose. Whatever the objectives are, Your Honour, it serves no practical purpose legally, whatever implications it may have to the wider political community.

  • Would you wish for the OTP to reply?

    MR. KHAN: Your Honour, of course I would, and I would ask for the right to respond to that.

    Very briefly, Your Honour, I can't see any prejudice in, simply, today, vacating your order for a tentative trial date and instead making an order that you receive submissions from the parties so that you and your colleagues back in Freetown don't arrive at a predetermined decision but make a decision on the facts and on the merits.

    Your Honour, those are my submissions.

  • Thank you, Mr. Khan.

    Very briefly, Mr. Staker, what do you have to say on this issue?

    MR. STAKER: Two fundamental observations, Your Honour. The first is, I am sure that absolutely nobody in this courtroom, and certainly not the Prosecution, fails to appreciate the importance of the rights of the accused and of the judicial obligation of Judges to be independent and impartial.

    I take it -- I share with my colleague, Mr. Khan, the fundamental consideration that political considerations do not enter the courtroom any more than in a national system. There may be economic pressures bearing on the funding of courts and budgets. That does not enter the courtroom. But I do not understand Your Honour in any way to have suggested that was the case. But I take on board what Mr. Khan says: One must be conscious to ensure that that does not occur.

    The other point I've said before is that the Prosecution does appreciate the importance and the fundamental nature of the right of the Defence to adequate time to prepare.

    I do also understand that the accused also has a right to a speedy trial, and that it is part of the role of the judiciary in the legal system in which we operate to be proactive to ensure the efficiency of proceedings.

    We understand that the trial date that was mentioned is a tentative trial date. Your Honour has made clear that there is flexibility built in and that, I think as Mr. Khan said, occasionally a gentle nudge is needed. We understood this tentative trial date to be something that would focus minds, that would nudge the parties to action, that would prevent matters simply from drifting.

    I don't know that I would say much more than that. I think on the basis of what I've said, I would not see a need for further submissions on this question. However, given the importance that Mr. Khan attaches to this point, I would also not oppose the suggestion that parties be invited to present more observations on the question, particularly, as I said at the beginning, as the Prosecution itself did not come here today with the assumption that a tentative trial date would be set.

    I say we, the Prosecution, have no problem with the tentative date that was set. We don't consider, given that it's tentative and subject to flexibility, that it's inconsistent with the rights of the Defence. But if further submissions are required by the Defence, it's not something that we would vigorously oppose.

  • Thank you.

    Mr. Khan.

    MR. KHAN: Your Honour, I'm most grateful to my friend's sensible and constructive indication, in effect in favour of the application, that further submissions can be received.

    Your Honour, the question has to be posed: What is the purpose of the order? Well, the answer comes: To focus minds. Your Honour, that is predicated on the assumption that minds are not focused. That, on any fair construction, on any reasonable construction, is patently not the case.

    Your Honour, one could even go so far as to say that in any international case, perhaps matters have not progressed as speedily, in a case of this magnitude, or as smoothly as in this present case.

    Your Honour, the whole premise is unfounded, in my submission. The right to an expeditious trial is --

  • The premise of what, of fixing a tentative trial date or fixing it on a given date?

    MR. KHAN: Your Honour, this rush to judgment that appears to be taking place, this rush in an "Alice and Wonderland" world, given the wider political world, not Your Honours, that people have been saying, "Off with his head." The Defence rather --

  • Mr. Khan, Mr. Khan, I really don't like the tone of your language.

    MR. KHAN: Your Honour, the Defence has submitted --

  • There is no need for this kind of tone. This Court is known for its courtesy all around, from the Bench to the parties, and vice versa.

    MR. KHAN: Your Honour, I did say, of course, not your Bench. I was quite careful. But, Your Honour, I did say --

  • You are addressing me. You are addressing me. I would urge you please to keep to the point and keep your submissions short.

    MR. KHAN: Your Honour, I will endeavour to do so.

  • In reply, that is, submissions in reply.

    MR. KHAN: Forgive me if any discourtesy at all was taken. It, of course, was not meant and I do apologize if that's the case.

    But, Your Honour, for the reasons adumbrated previously, the Defence submit that there is compelling reasons of fairness and procedure for Your Honours to hear proper and full submissions on a complicated issue before setting even a tentative trial date, because making any judicial determination, of course, has a purpose and it must be informed.

    At this moment in time, in my respectful submission, the tentative trial date in April that was mooted back in Freetown in August, absent hearing submissions, has not been fully informed and has been made prior to hearing in submissions back in Freetown, prior to the transfer here to The Hague. And, Your Honour, I would ask, with the greatest of respect and the greatest of humility, that Your Honour vacate the oral ruling and substitute it, if Your Honour is so minded, with an order that the parties file submissions on this very important question within any time period Your Honour deems appropriate. And after hearing that, a decision is made.

    Your Honour, I'm most grateful once again for the chance to make submissions and indebted for Your Honour rising and allowing any other business to be raised in your courtroom.

  • Thank you. Thank you, Mr. Khan.

    MR. KHAN: I'm grateful.

  • Before proceeding to any other business that may be pertinent, I wish to make a quick ruling on this oral application by Mr. Khan for the Defence in which he seeks a setting aside of my order setting a tentative trial date on the grounds that I have not heard submissions from the parties in this regard, an application that has not been opposed by the Prosecution.

    Now, the main ground of Mr. Khan's application is predicated upon the assumption that I have not heard from the parties. I would like to remind the parties that the subject of a tentative start date of the trial has been debated on a number of occasions before today.

    The first of these occasions was in the first Status Conference in July before my brother, The Honourable Judge Lussick. At that conference the parties made extensive submissions that are on record. And the question at that time was with regard to how ready each side felt, how ready were they to proceed with the trial, when does each side think it would be ready to proceed with the trial. Now, at that time the Prosecution indicated that they would be ready to start in February; the Defence indicated that they didn't even have counsel, but in any event they were thinking of not earlier than July. The Judge then ruled that it was premature to set a trial date, having heard from the parties.

    Now, the next occasion when that subject arose, and at which occasion the parties were given ample time to discuss this issue and make their submissions known, was before the Deputy-Registrar, who was assigned by the Trial Chamber to conduct this meeting between the parties, and to find out from them what their views were, firstly, about the time -- the setting down of a tentative trial date and, secondly, about an action plan towards this trial date.

    Now, we have minutes applied to us of this meeting in which both parties had ample discussions around this subject. These minutes were availed to us, and I have read them and have familiarized myself of them. As I stated before earlier on in these proceedings, as much as the parties did not come out supporting the date that the Trial Chamber had suggested, they didn't suggest an alternative. They simply stuck, each of them, to their dates that they had submitted in the first Status Conference.

    Now, the third occasion, when both parties have had a chance to address this matter and make submissions, was today. When I was discussing this agenda item, I began by saying, "I want to propose a tentative trial date," and I asked each party what their views were, one, of the idea of setting a tentative trial date; and, secondly, when they think in their opinion that date should be. And I held my peace because I didn't want to influence the parties.

    Now, I think it was the Prosecutor who drew upon the date presented in the meeting of 2nd April as being the date, and this debate continued, and I gave Mr. Staker ample opportunity to address me as of today as to what he thought, one, was it a good idea -- those were the very words I used: Is it a good idea? And I explained why I needed a tentative trial date. It's all to do with case management. And you cannot tell me it's not within a Bench's duty to manage a case. We have to case manage the parties. Otherwise, there's no need for these Status Conferences either, because if the parties could stand to their obligations and be counted, we would not need these Status Conferences, we would not need these orders and applications and these submissions back and forth.

    Unfortunately, in the real world, things don't work that way, and it's the role of the Bench, the Judges either sitting as a Bench or as designated, to ensure that you periodically hold Status Conferences and properly manage the case towards the trial date. And even after the trial date, you've got to continue managing this.

    So I gave each side an opportunity today to make relevant submissions towards two questions I asked you: Is it a good idea to have a tentative trial date? And I think, Mr. Khan, you said, even before I finished, you said, "It's a wonderful idea." I'm not quoting you wrong. You said, "It's a wonderful idea" to have a tentative trial date. You then went on to give your submissions, many of which were a repetition, probably emphasising the Defence case, but they were a repetition of your submissions in the first Pre-Trial Conference and at intervals I interjected.

    But, as far as I am concerned, you have had three distinct opportunities to make submissions on this one aspect. I have listened to the submissions from both sides and I have come up with a tentative trial date. The date I have come up with is tentative. I cannot emphasize enough that this date is tentative; it's provisional; it's liable to change for good cause shown. But it is necessary.

    Now, I see no reason to set aside my order or to review it. That is my ruling on that issue. The date remains 2nd April 2007, which will be a Monday.

    MR. KHAN: I'm grateful.

  • Now, if there is any other business, I will hear from the parties. If not, I want to thank the parties for a very well-conducted Status Conference. Thank you for your submissions and your assistance. And like I promised, the Trial Chamber will let you know when the third Status Conference will be. I thank you.

    Court is adjourned sine die.

    --- Whereupon the Status Conference adjourned sine die.

    at 4.27 p.m.