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

  • Thank you.

    I'll take appearances, Your Honour.

    MR. RAPP: Madam President, Your Honour, members of the Defence. Appearing today for the Prosecutor is the Prosecutor, Stephen Rapp, and Trial Attorney Wendy van Tongeren. Thank you.

  • Thank you, Mr. Rapp, and welcome to Trial Chamber II. Thank you.

    For the Defence.

    MR. KHAN: If it please Your Honour, Karim Khan, appearing on behalf of Mr. Charles Taylor, assisted today by Mr. Roger Sahota, Mr. James Supuwood, Mr. Avi Singh, and Ms. Caroline Buisman.

  • You went a little quickly towards the end there for me, Mr. Khan.

    MR. KHAN: Your Honour, James Supuwood is our West Africa/Liberia legal advisor. Next to him is Mr. Avi Singh, and seated next to him, last but not least, Ms. Caroline Buisman.

    Your Honour --

  • And?

    MR. NMEHIELLE: Vincent Nmehielle, Principal Defender.

  • Thank you, Mr. Defender.

    I note the accused is not present in court.

    MR. KHAN: Indeed, Your Honour. I should make it clear, and I did alert the Senior Legal Officer and Mr. Registrar to this fact, that Mr. Taylor was complaining yesterday of some discomfort to his back. He had rather restricted mobility. He was seen today, and given the transit requirements, he is not attending today. I am authorised to waive his right to attend, and there's no bar, with Your Honour's leave, to today's proceeding continuing as normal.

  • [The accused not present in court]

  • Madam Court Attendant, please call the matter.

    MS. MUZIGO-MORRISON: The Special Court for Sierra Leone is sitting in open session for a Status Conference in the case of the Prosecutor against Charles Taylor, case number SCSL-2003-01.

    I'm most obliged, Your Honour.

  • Thank you for that indication, Mr. Khan. I will rule, then, that he's waived his rights, pursuant to Rule 60, and the matter will proceed in his absence.

    MR. KHAN: Indeed, I'm grateful.

  • There is one preliminary matter, counsel.

    Very late this afternoon we received a request from the Press and Public Affairs Office of the Special Court -- Mr. Khan, if you wish to be seated --

    MR. KHAN: I'm grateful.

  • -- as I'm addressing both sides.

    Incidentally, I neglected to welcome Mr. Supuwood to the Special Court, and I'll deal with another matter relating to counsel in a moment.

    The preliminary matter, it relates to a request by the Press and Public Affairs Office of the Special Court to allow a Reuters photographer to enter the court. The Court has decided, pursuant to Rule 81(D) of the Rules of Procedure and Evidence, to permit the Reuters reporter to be in the court for one minute after the court is seated and to take photographs on the condition that he ensures that the dignity of the proceedings are preserved and that he will be the only photographer with access to the courtroom. And he has agreed to make available photographs taken -- to be made available to the press in Sierra Leone and to the Press and Public Affairs Office of the Special Court for any photographs for internal use. So he's come and gone, as I read that out.

    Counsel, there is an agenda for today's hearing. There was time given for counsel to put any proposed additional items on the agenda. It is my understanding that no additional items have been put forward, and accordingly I will assume that the agenda is as issued on the 20th of November. I will, of course, entertain any other matters that may arise.

    The first matter on the agenda is a matter of disclosure obligations under Rules 66, 67, and 68. Since that was drafted, yesterday I understand, Mr. Khan, two motions were filed in relation to the provisions of Rule 66 and Rule 68. That is correct?

    MR. KHAN: Your Honour, that is correct. They are not new matters. They will not be a surprise to anybody in this court. Your Honour, they were raised orally at the last Status Conference. There was disagreement between the parties. Agreement could not be reached by way of any out-of-court discussions, and therefore, simply to give effect and to obtain judicial relief, a motion has been filed.

  • I'm aware of what was said at the previous two conferences.

    MR. KHAN: Right.

  • However, since these matters are now before the Trial Chamber, my initial view is that the Trial Chamber is seized of them and we cannot deal with those issues unless, by consent, some resolution is entered, by consent, today. That's my initial view, and I will ask both counsel what their view is on this agenda item.

    MR. KHAN: Well, Your Honour, I'm most grateful for that. I think it's an eminently sensible way of proceeding. I don't think there will be any controversy. Once again, it's not my intention to raise anything related to those matters that Your Honours, in due course, after consideration and receiving the Prosecution's written response, will adjudicate on, so they are not matters that are going to be raised by me today.

  • Mr. Rapp, have you any reply or observation to make on this?

    MR. RAPP: Madam President, we really deal here with two types of disclosure. One is the disclosure of documents, and I think the motion for inspection of documents puts in issue the whole question of how documents are inspected and labeled. Under those circumstances, I suspect we will have some dispute, and it's not really appropriate to get into that.

    With regard to disclosure of witnesses, we can make a report of the situation in terms of the witness disclosure. Now, I believe there may soon be a motion in regard to varying protective measures, but I think it's possible to deal with the 66(A)(i) or (A)(ii) issues here today and to have a report on that.

    In that regard, I should say, Your Honour, that as far as we've noted, all of the witnesses' - both on our core list and on our backup list - statements in redacted form, pursuant to the protective order, have been disclosed. There are a few witnesses that waive protection, and on those the statements have been disclosed in an unredacted manner, except for four witnesses, one of whom it's been decided not to use, Witness TF-1-341, though that statement has been disclosed to the Defence for Rule 68 purposes; and there are three other witnesses, TF-1-042, TF-1-044, and TF-1-272, individuals that have not yet given their consent to disclosure of their statements because of the concern of their protection. Obviously we couldn't use those individuals as witnesses unless we make that disclosure. But we're endeavouring as soon as possible to obtain that consent and to make the disclosure in redacted form, and certainly well in advance of the 66(A)(i) requirement of disclosure 60 days prior to the trial date.

    Thank you, Madam President.

  • One matter I did note that I think I could raise is that in the previous hearings, Mr. Khan, you had asked for maps. I notice one of the annexures to one of your motions refers to maps. Have you had whatever maps you've needed?

    MR. KHAN: Your Honour, we haven't had the maps we've needed. I have just received in court today some disclosure. In fact, it's a letter from -- well, addressed to the Prosecutor, and I'm very grateful to Mr. Rapp for providing it. I think matters are afoot, and I hope maps would be served soon.

    One moment, Your Honour.

  • [Defence counsel confer]

    MR. KHAN: Your Honour, this relates to maps for Liberia. So I think a request has been made from the Prosecution to the relevant body, and a relevant map detailing the contours of Liberia and the boundaries hopefully will be served in due course.

  • Will those also be made available to the Court, Mr. Rapp?

    MR. RAPP: Yes, they will. And the particular issue there was there was a map that was produced and in the possession of the United Nations Mission in Liberia, and we had to have the permission of the Secretary-General's Special Representative - and I requested that upon my arrival in Freetown - and I'm pleased that yesterday we received his letter indicating that we may use that map, though they do not warrant or guarantee that it's the best product they were able to produce. And so we are -- we will obtain it and disclose it and also provide it to the Chamber.

  • That was the only matter that I felt was non-controversial that could be raised outside those motions.

    Unless counsel has any matter that they think could be safely raised under either Rule 66 or 68 or 67, I would be glad to entertain it.

    MR. KHAN: Your Honour, with your leave, there are a number of issues that I would wish to raise. I'll try to be very brief. I've alerted my learned friends to the areas I intend to raise with Your Honour for adjudication.

    Your Honour, in relation to the witnesses that have been disclosed, so far the Prosecution have indicated that they intend to call between 14 to 19 expert witnesses. Your Honour, that's in their list of core witnesses that they provided some time ago.

    Your Honour, my learned friend agrees that we have had but a few, perhaps one or two, but the vast majority of these have not been provided to us. Your Honour, whatever the Prosecution may respond - and there may be difficulties in instructing experts for them and in obtaining an expert report - given the tentative trial date now set for June, it's my submission --

  • I beg you're pardon? Did I hear you use an adjective? I thought there was a trial date set.

    MR. KHAN: Your Honour, given the date set for June, perhaps even more so if that's -- if it's Your Honour's intention for that to be a firm trial date, given the trial date set for June, the Defence must have disclosure of the statements that the Prosecution intend to rely upon as expert witnesses.

    Your Honour, it is trite to say that the Defence require time, not just to read those expert reports but to locate and instruct their own experts in order to prepare for cross-examination.

    Your Honour, the tentative trial date of June is only a few months away, and I would ask that you today order the Prosecution, who said previously they were ready for trial in April, to serve by the end of February all expert witnesses that they intend to rely upon. That would give the Defence time, hopefully, however tight, to instruct experts to read the report and see what our experts have to say. Your Honour, that deals with expert witnesses.

  • Just to make sure, you're asking for names and reports or just names and the subject matter?

    MR. KHAN: Your Honour, the reports that the experts are relying upon. This is a right under the rules.

    Your Honour, in addition, there is a matter dealing with the mode of disclosure that's being undertaken. Your Honour, the Defence have tried to reach some agreement with the Prosecution, and by way of a letter in fact on the 24th of January, the Prosecution have confirmed that we remain in disagreement.

    Your Honour, the area of dispute is this: That when, on the 17th of May, the Prosecution served the first tranche of disclosure to the Defence, they served paper copies; but in addition, they were kind enough to provide electronic copies of the first tranche of disclosure.

    Your Honour, they were not immediately happy to do that, but they were kind enough to do so on the undertaking by me that I would not give that electronic disclosure to my client. Your Honour, that disclosure has not been given electronically to my client. Instead, we printed out and copied again, with the assistance of the Defence office and numerous interns working long hours, the entire tranche of the Prosecution disclosure.

    Your Honour, the difficulty is this: We have offices in Freetown; we have members -- one member at the moment in Liberia, hopefully an investigator to start soon, as well as team members in The Hague. Your Honour, the Prosecution are opposed to me giving this electronic disclosure to members of my African team, people in Liberia and in Sierra Leone. They are opposed to that. They are not opposed to me giving it to an international investigator, but they are opposed to me giving it, for example, to Mr. Supuwood or to my Freetown investigator.

    Your Honour, those members of the team have been if not approved by the Prosecution, their names have been cleared by the Prosecution in the sense that no objection has been taken to them from information in the Prosecution's possession.

    Your Honour, in my submission, a court, particularly funded by voluntary contributions, must be especially careful with its resources. The work has been done. It's available for me to give to my team members. If the Prosecution maintain their position, Your Honour, I have no option but to get all that material photocopied again, at significant expense, or get it all scanned through again, duplicating costs, and giving the bill to Mr. Registrar.

  • What are you seeking from me, Mr. Khan?

    MR. KHAN: Your Honour, I would seek an order that the Prosecutor be ordered to follow the best practice, which has been adopted by the ICTY and the ICTR, in which there is an EDS system. In that EDS system --

  • What does "EDS" stand for?

    MR. KHAN: Electronic data -- electronic disclosure system. Your Honour, in that members of the Defence are trusted, and it's viewed to have leveled the playing field somewhat, that Balkan lawyers, lawyers dealing with the former Yugoslavia, lawyers dealing with the ICTR, are allowed to download electronically the Prosecution disclosure. They can go through it. It's a very efficient system that, in conjunction with hard copies, makes life easier. In my submission, it is all the more useful where we are geographically divorced between Monrovia, Sierra Leone, and The Hague.

    In my submission, the Prosecution objection, with the very greatest of respect, is without logical coherence and is devoid of merit.

    Your Honour, I do ask that you order the Prosecution to follow the best practice of the ICTY/ICTR and allow us to give what they have already given to me, allow me to give it to my investigators. Otherwise, as I've mentioned, the work will be done, but a bill will be given to the Registry.

  • Is there any relevant rule in the ICTY or ICTR?

    MR. KHAN: Your Honour, it's the practice, I said, the best practice. It comes under the same rules of Rule 66 and 68. It's the same rule, almost verbatim taken. As you know, when the Special Court was adopted, the ICTR rules applied mutatis mutandis, as Your Honours know. So it's over time, with the experience of the Rwandan tribunal and the Yugoslav tribunal, it's a practice that's been adopted as serving the interests of justice.

  • I understand.

    MR. KHAN: Your Honour, that's my submission in relation to electronic disclosure.

    Your Honour, the only other remark I have, it deals with the pre-trial brief. I don't know if you wish me to address Your Honour now or later.

  • I would like to deal with those in the list on the agenda, so I'll invite reply from the Prosecution.

    MR. KHAN: I'm grateful.

  • Mr. Rapp, you've heard counsel for the Defence. There are two issues, the expert reports, and perhaps you could refer me also if there are any provisions under Rule 94 bis on this electronic disclosure system which counsel for the Defence is seeking. If you'd reply to those, please.

    MR. RAPP: Thank you, Your Honour.

    First of all, as soon as the Prosecutor has reports of experts, it will provide those reports to the Defence. The point is we do not have those reports at this time. The business of dealing with experts involves finding their time to write the reports and to prepare them, to contract with them, if they require a contract, and that's a process that's ongoing. And as soon as we have the reports, we'll provide them.

    Your Honour has wisely pointed -- invited me to look at the rules, 98 bis -- not 98 bis, 94 bis (A) which does provide that the report of an expert witness shall be served not later than 21 days before the witness is to testify. That rule also takes the expert witness disclosure out of the Rule 66 provision -- excuse me, the Rule 73 bis provision in terms of disclosing the subject matter and the summary of the witness's respective testimony.

    So the regime basically provides that fact witnesses, we have to disclose those 60 days before trial under 66(A)(i) or (A)(ii), their statements; they will be disclosed in unredacted form 42 days before they testify. But the rules provide that with expert witnesses, one has until 21 days before their testimony, which is usually relatively late in the trial. And that allows the maximum time period for them to prepare the report. And to a substantial extent, the witnesses are also going to be called upon to give opinion based on facts in the record in the form of a hypothetical question.

    So under the circumstances, the rules do not call for this kind of early disclosure of expert reports as a mandatory matter, and we think it would be inappropriate in the context of this Status Conference to attempt to vary the rule.

  • Doesn't Rule 94 bis say they will be disclosed as early as possible?

    MR. RAPP: And, indeed, that's our position. As soon as we have the reports of the experts, we will disclose them.

  • Yours is purely a practical rather than -- a practical position. You don't have them at the moment.

    MR. RAPP: Exactly.

  • Very well. Thank you.

    MR. RAPP: And we can't be compelled to create them. And as long as we get them 21 days before they testify, that's sufficient under the rule.

    Now, in regard to this mode of disclosure business. First of all, in regard to the reference to the electronic disclosure system, obviously the Chamber is aware of my former experience in the ICTR and specifically with EDS. I don't intend to testify here about it, but I would note simply that there is a different rule. Rule 68 has been divided into subparts, and I believe there's a 68(A)(ii) that provides for the provision of disclosure through electronic means, if practical. And that has occurred at both tribunals.

    We do not have such a rule here. It hasn't been adopted. And to be frank, the systems upon which the evidence is organised and digitised at both tribunals make it much easier to make that accessible to the Defence. Our Office of the Prosecutor records at the Special Court for Sierra Leone, those documents that have not been created in electronic form but that are simply scanned into the system as images are not searchable electronically. We don't have the so-called ZyFind system that's used at the ICTY and ICTR, which, frankly, I think, is sometimes quite useful.

    So applying the sort of EDS system to the Special Court for Sierra Leone would not be as effective as it has been in the other institutions, but that's a broader policy question.

    What the Defence today is asking is, I think, something narrower than that, and that goes to the disclosure that we're providing under Rule 66, whether those are witness statements or documents under 66(A)(iii) that we provide in lieu of Defence inspection under 66(A)(iii) or Rule 68 material, information that's possibly exculpatory or goes to the credibility of Prosecution evidence. In that situation, we have been providing hard-copy disclosure of what we have.

    An agreement had been reached going beyond what was required of us that electronic disclosure or electronic copies of those documents - and they're often simply scanned documents that aren't really searchable - would be provided to Mr. Khan himself if they were to stay on his laptop. Later on in his request, it was extended to the investigator or the international investigator. And we don't want to particularly draw distinctions within the team, but obviously we get into the situation of making, what we view, a generous offer and then each time an additional demand is made and we're accused of being stingy because our initial generous offer wasn't generous enough.

    Our concern, to be frank, Your Honour, is the possibility of redisclosure of this material through electronic means outside of the Defence team. And I know from experience that Defence -- that documents provided to the Defence and then on to an accused person, that that accused person then delivered, through gaol visits, a floppy disk or a memory stick, et cetera, that those documents have ended up in international circulation. I've had a 400-page statement of a witness disclosed two days after disclosure. On the --

    MR. KHAN: I do apologise. I must object if my learned friend is seeking to extrapolate bad practice in other courts and seek to ascribe it to Mr. Taylor. That's unacceptable.

  • Mr. Khan, I will deal with that point in due course.

    MR. KHAN: I'm grateful.

    MR. RAPP: And I only mean to illustrate and not to suggest that that would happen here. But these are the concerns that we have. We have witnesses --

  • I was going to ask you, Mr. Rapp. You may have read Mr. Khan's instructions to his teams - it was filed with the Court some months ago - to try and put in place a comprehensive system to ensure there wasn't inadvertent or deliberate disclosure. I'm sure you've seen that.

    MR. RAPP: Yes, I have. And he discussed also providing a copy of a protocol to us as well, which I don't think I have seen yet.

  • I think it's been given to the Trial Chamber.

    MR. KHAN: Your Honour, that was filed ex parte, confidentially.

  • Very well. I won't deal with it any further, other than to say I understand there are provisions in place.

    But what occurs to me, as you address me, Mr. Rapp, is this electronic system that Mr. Khan refers to in the ICTY and the ICTR is, in turn, dependent on two things: The rules of those two tribunals and an electronic system that we don't have in Freetown. Am I correct?

    MR. RAPP: That's correct, Your Honour.

  • And this, then, begs the question whether I can give a directive if, A, I don't have a rule that I can follow and, B, it can't be implemented anyway.

    MR. RAPP: Well, in deference to my colleague, I think he was going beyond his initial demand to talk about an EDS system. I think his narrower demand was the question of whether we would make available disclosure electronically to all members of the trial team and to the accused, and what I mean is in electronic form; in other words, we'd burn it on a CD-ROM and physically hand it to them as opposed to hand them the papers.

    Our concern is not the members of the trial team; our concern is that material being handed to non-members of the trial team, to the accused, who would presumably have a right to review it, and then potentially being copied or through some transfer of magnetic medium to a non-lawyer visitor to get out in the world, and that has happened at the other tribunals.

  • Mr. Rapp, I have in mind the definition of "Defence" in our rules, which it defines the Defence as the accused and/or the accused's counsel. It is my view that the protective measures in place which bind the Defence will also bind the accused, and therefore he is equally bound not to reveal or disclose any materials. And I would like to think that anyone bound by a court order will obey the court order until I have evidence to the contrary.

    But that observation does not overcome the reservations I've already pointed out, that it seems to be both a practical and a rule question.

    Unless there's some other matter you wish to put before me, I will ask Mr. Khan to reply just on that one point.

    Mr. Khan.

    MR. KHAN: Your Honour, I'm much obliged.

    Your Honour, for the sake of clarity, I'm not asking -- I know resources are scarce and they're different courts and I'm not simply seeking to copy the administrative or resource capacities of different courts and transplant them in the Sierra Leone court context.

    Your Honour, I'm not asking for an EDS system. All I'm asking, Your Honour, is that what the Prosecution have they share with us in the sense of electronic disclosure. Your Honour, they've given, they've provided, electronic CDs. For the life of me, Your Honour, I cannot see any prejudice in me giving my electronic CDs to Mr. Supuwood, who is a Liberian, or to a Sierra Leoneans. There's a prohibition for that. But I can give it to Ms. Buisman from Holland. Your Honour, that's --

  • I didn't get that prohibition from Mr. Rapp. Mr. Rapp presents me with a rule that you referred to in another court and it's not referred to here, and a purely practical problem of disseminating this information. The way you're presenting it, it seems to me that it's on a -- I wouldn't say a racial basis because of two different nationalities, but for some other reason other than a practical problem.

    MR. KHAN: Well, Your Honour, I was quite frank. Your Honour, I said that the position of the Prosecution, with respect, is without logical coherence or rational support. Your Honour, it can't make sense that they allow me to give electronic disclosure to Ms. Buisman and prohibit me from giving it to Mr. Supuwood. I don't see, for the life of me, how that can be sustained. Your Honour --

  • Mr. Rapp, is that the situation? Because that is not what I'm getting from you. I'm getting a different impression from you altogether.

    MR. RAPP: Well, understand, we get into this distinction with the accused, which, you point out, may be unsupported by the rule.

    Our original arrangement was that we would provide this material in an electronic form, though obviously by hand-delivery, to counsel alone. We wanted to restrain, to the extent that we could, its wide dissemination because of the fear that the wider that it's distributed, there's a chance that positively everything could go up electronically and it couldn't be captured once that was done. That was our concern.

    Frankly, within the trial team, we don't have any problems with providing this material that we've disclosed so far in electronic form. But I think when we get to unredacted disclosure - because we're now being faced with a situation where we said that Mr. Khan could have it and then dealt with people one by one - I think when we get to unredacted disclosure, we won't make any electronic disclosure available to Mr. Khan or to anyone else. We'll provide it in hard copy. We simply do not want to run the risk that by the simple act of pushing a button in the online world, that material could end up out there.

    And if we can't draw a distinction between the trial team and the accused, who cannot be effectively sanctioned - he's already facing the most serious possible penalty provided under international law; a contempt sanction is meaningless - we will not provide electronic at that point. At the moment, as long as it's redacted, we don't have as great a concern.

  • Thank you, Mr. Rapp.

    Thank you, Mr. Khan. I've reached a decision on these two points.

    There are two matters, then, raised by Defence. One is to do with expert reports. I remind the parties of the provisions of Rule 94 bis (A) which imposes a mandatory provision that an "expert witness called by a party shall be disclosed to the opposing party as early as possible," and I direct that the Prosecution disclose as early as possible. I accept the submission of counsel that they don't have the expert report and therefore I cannot order something that doesn't exist. But I remind counsel of that obligation.

    On the second point concerning the mode of disclosure, the provisions of Rule 66(A)(i) oblige the Prosecutor to disclose to the Defence copies of statements of all witnesses, et cetera. That is the rule that this Court can enforce, and I do not consider that -- I can't go beyond that to tell the Prosecutor how to run his office. He's obliged to disclose and I order him to do so.

    MR. KHAN: Your Honour, a couple of matters, with your leave, because in fact I hadn't finished my response prior to the floor being given to my learned friend. Perhaps it's useful to have recourse through 65 bis, just in relation to the difference of the rules in your powers.

    Of course, one of the general purposes of today's hearing is to organise an exchange between the parties so as to ensure expeditious trial proceedings.

    Your Honour, in my submission, that gives Your Honour, with her experience, substantial discretion in deciding both by way of direct order as well as by way of advice, non-binding order, to the parties how they can liaise or coordinate so that matters can be properly and fairly put in the interests of a fair and expeditious trial. So, Your Honour, that's the first point I have to make.

    In relation to the ICTR practice, I didn't address you. Of course, the ICTY and ICTR rules evolved significantly since their inception. But what is important when one is looking at the Yugoslav and Rwandan rules is the overriding provision that the rules were flexible, geared towards a fair and expeditious trial.

    Now, the EDS system came under -- it was a species that arose out of the same Rule 66. Your Honour --

  • Mr. Khan, are you trying to go behind the directive I've just given?

    MR. KHAN: Your Honour, I was seeking to clarify in relation to the issue with disclosure. But, Your Honour, in light of your order regarding expert reports, what I would ask is a supplemental order that the Prosecution, within a time period Your Honour feels appropriate - perhaps two weeks - provide to the Trial Chamber and to the Defence a time line of both the identities, if known, of the putative experts and, secondly, when they expect to have reports.

    Your Honour, in addition to that, I would ask for an order - and it's a practice that's followed at least in the Yugoslav tribunal - that prior to the finalised report being available, a summary be served upon the Defence as soon as possible; so as soon as possible, even if it's not the final expert report, a general outline of the areas covered by the expert be served upon the Defence.

    Your Honour, in my submission, it's far too relaxed on the Prosecution to say, "Well, whenever we have it, we have it and we'll give it to you." A bit of pressure would be useful to focus their minds in this issue, given the June start date.

    I would ask that orders be given that within two weeks, Your Honours and the Defence be notified as to the identity of the putative experts and the time line within which these different reports are going to be served upon us. I don't see any reason why that cannot be provided to us.

    That's my supplemental position, Your Honour.

  • I can see as a purely practical thing, having seen expert reports over the years, how slow experts can be in getting their reports done, and therefore I'm wary of stipulating a time for a report if the counsel on the other -- who the order is directed to cannot necessarily fulfil it. However, I can certainly -- I'll invite Mr. Rapp's reply, but that is an observation I make myself with reservation.

    Mr. Rapp, you've been asked to make known the -- presumably the names and the fields of expertise, and then we'll come to the summaries. Have you determined your fields and the names, and are you ready to disclose those?

    MR. RAPP: Well, Your Honour, we have a list of -- internally, of 13 prospective experts and then nine sort of other context witnesses, more journalistic type of individuals. But in terms of selecting between them, we have not done that, and we want to make sure that we present the expert that's the best and the most complete and the most authoritative in each area.

    There are rules, and those rules create very tough standards on the Prosecution to have its case ready. What 66 -- what Rule 73 bis says is that at the time that the pre-trial brief is filed, we're required to list all our witnesses, including our expert witnesses; but then it relieves us from the requirement under 73(B)(iv)(b) to provide a summary of facts upon which that witness will testify.

    Now, that's the rule, and our position is that we will comply with the rule. But we also recognise that the spirit of the rules is that as soon as one has the information, one doesn't wait until that deadline to provide it. And so we will move on this as expeditiously as possible and get that information.

    Now, I've just queried Ms. van Tongeren about the actual expert witness situation, and I'm pleased to report that we just have received one report that is complete and another one that we have a draft of that's going to -- that's in revision. So I believe very shortly we'll be able -- well, certainly immediately we'll be able to provide the one and very shortly the second one. And it's obviously in our interest to get these witnesses selected as quickly as possible. But I think it's inappropriate to compel us to provide things contrary to the rules.

    Now, in a moment we'll get to the issue of when the 73 bis pre-trial report and list is due, and that will be an important issue, but it has to be, I think, dealt with in that context, Your Honour.

  • I see no reason to amend or deviate from the directive I've already given, and the directive stands.

    I move on now to the second item, which is the indication from the parties on any points of agreement, including admissions or statements not in dispute and agreed issues. This was discussed at some length at the previous Status Conference.

    I understand from correspondence that a list of agreed facts of both fact and law were served on you, Mr. Khan, on the 31st of October. Was that correct? How is that coming on?

    MR. KHAN: The position is as stated in the letter from the Prosecution to Your Honours, and it's in accord with my previous submissions: That I will turn my mind to agreeing facts once I've read the evidence. Your Honour, I have not read all the evidence in the case or am in a position at the moment to agree facts. I have given the Prosecution my assurance that as far -- as soon as possible before trial, I will turn my mind to the areas where we can focus. But at the moment it's simply not sensible to start agreeing matters without understanding either the contours of the Prosecution case or particularly the full gamut of evidence.

    Your Honour, this goes back, of course, to the motion that I had previously filed and which has been adjudicated on regarding adequate time.

  • At the last Status Conference, Mr. Khan, I note you said you could at least agree some basic facts, and you gave an example. In fact, you gave two examples.

    MR. KHAN: Yes.

  • Have you moved any further on from that?

    MR. KHAN: Your Honour, I've told the Prosecution in candour, as I told Your Honour on the last occasion -- your colleague on the last occasion, that areas, for example, like geographical boundaries will not be disputed. But, Your Honour, what I intend to do is to deal with matters once I'm in a position to do so.

    Your Honour, to start going through evidence and agreeing facts without reading the Prosecution evidence, I'm not prepared to do it. I need some more time, and when I'm ready I will agree certain facts.

    Your Honour, I've told the Prosecution at this moment in time everything is in issue. Once I'm in a position to do so, consistent with my professional responsibilities, I will go and start agreeing areas that we're able to, for example, crime base evidence.

    Your Honour, the Prosecution know there's going to be no dispute, for example, that my client was President of Liberia between the relevant period, and the rest of it. But simply, I haven't had time at the moment to deal with those matters given the huge number of other matters that the Defence have to cope with and the other surrounding circumstances that Your Honours are well aware of.

  • I'm a little concerned that it appears that in the three months since there was -- these facts were served or disclosed upon you, to you, that we appear not to have moved on. Am I right in that observation, that we appear not to have moved on?

    MR. KHAN: In relation to agreed facts?

  • Yes.

    MR. KHAN: Your Honour, we've agreed -- moved on in relation to the case.

  • I'm talking about --

    MR. KHAN: Your Honour, there's no obligation on the Prosecution -- on the Defence to agree a jot. Your Honour, there's no obligation on the Defence to agree to anything. The Prosecution bring this case and they must prove this case beyond reasonable doubt.

    Now, Your Honour, I've told the Prosecution and I've informed Your Honours that in good faith, at the relevant time, I'm going to endeavour to focus this trial, from the Defence perspective, on matters that are relevant. But, Your Honour, I'm not willing to accommodate the Prosecution, bend over backwards, when it's not in the interests of my client. My time at the moment is most efficaciously spent in case preparation and reading the evidence.

    Now, Your Honour, I gave the statistics; five minutes a page, how long it will take. We haven't gone through the evidence, and I'm not going to start agreeing facts until I've done that. I think that's professionally incompetent and I'm not willing to do that.

  • I am not for one moment, Mr. Khan, suggesting that the burden ever shifts from the Prosecution to the Defence, and it would be regrettable if you've formed that impression. I certainly do not intend that impression to be given. That onus never moves. And that is why, for example, the Defence are under no obligation to make statements. I throw that out as an example at random.

    However, the rules do provide that the Trial Chamber can direct the Defence to file a list of agreed facts. I'm referring here to subrule (F) of 73 bis.

    MR. KHAN: Your Honours, quite right. At the moment, there will be no agreed facts by the Defence. When I'm ready to do so, I will. I've said so in good faith. Your Honour, the proof of the pudding is in the eating. When I'm ready to do so, in advance of trial, facts will be agreed by the Defence with the Prosecution and areas will be, hopefully, narrowed.

    But, Your Honour, at the moment, given the amount we've had to do and the limited resources we've had and all the other difficulties, working without an office, I'm sorry, Your Honour, I haven't thought agreeing facts with the Prosecution is a priority for my client given that I have to learn what the allegations are, first of all.

  • What about -- I note the last Status Conference didn't refer to agreed points of law, but I note from the notice served on you, there was a reference to agreed points of law. My observations on the evidence equally applies to points of law. But is it likely that there will be any agreed points of law?

    MR. KHAN: Yes, Your Honour.

  • Mr. Rapp, you've heard counsel for the Defence on this thorny issue.

    MR. RAPP: Madam President, we're frankly disappointed. The trial team did spend a great deal of time going through public records and, in the end, putting together hundreds of statements of facts from the public record that we did not believe, with rare exception, would be in substantial dispute, and would provide the Chamber with a foundation of historic fact from which they could then proceed, without prejudice to the accused, to determine the real facts in this case, the facts that I think are legitimately in dispute.

    As Your Honour just invited Defence counsel's attention, this Rule 73 bis (F) talks about this occurring prior to the pre-trial conference, and that is very important for us because we have to select witnesses.

    I mean, if you look at the statement of fact, we have statements like -- you could look at 155:

    "ECOMOG, acting on behalf of the deposed government of President Kabbah, ousted the AFRC Junta from power on or about the 14th of February, 1998."

    No real dispute, I don't think, on that fact, but they're unwilling to stipulate to it so we're going to have to make sure a witness says that to the extent we need to show what role the AFRC, which we allege later will have some tie to the accused, had in power.

    And so this puts us into a situation as we sit down and select our witnesses and -- as someone might complain, Why 133 core witnesses, and why are you talking about 92 bis witnesses on background information? Because we don't have these stipulations of fact, we have to prepare to call people to prove this up. Maybe it won't be that difficult.

    The key thing here, which I think we'll get to in a moment, is when we have to have this pre-trial list done, and ideally we should have this information before that. And I think what Mr. Khan is telling us is that there is no way that we're going to have it before that, and that would be unfortunate and it will require a larger case, at least on the front end. And I think it would be efficient and in the interests of justice.

  • In the light of Defence's submissions, I am loathe to make an order under 73 bis (F) at this particular moment. However, I am concerned to hear that even the basic facts which counsel, Mr. Khan, indicated back in September and, if I recall correctly, in July that could be agreed, and the examples you've repeated here present today, that even those have not been agreed and thereby are partly putting the Prosecution on notice that they will have to be proved.

    I always feel it's not the duty of a judge to tell either party how to run their offices or run their case, but, Mr. Khan, would you be prepared at least to agree those basic matters that you have indicated here to the court you will, to at least shorten this --

    MR. KHAN: Your Honour, I've put forward a very consistent position, with the greatest of respect. It is my intention -- as I said, the proof of the pudding is in the eating. As soon as possible, I will agree the greatest number of facts as I can. They will include the very obvious matters, for example, borders and who's the president when, where, for what country, for what period.

    But, Your Honour, we signed a contract in September. There's been numerous problems. And time spent agreeing facts with the Prosecution is time spent away from reading the Prosecution evidence. Your Honour, that basic difficulty has to be understood.

    Your Honour, if it assists the Prosecution to agree facts which I've said orally are not going to be in dispute, I can try and get something to them, you know, next week, without giving an undertaking, in the next two weeks anyway, about those peripheral matters. But I think that's not going to be of huge assistance, because the devil is going to be in the core witnesses, which I doubt are going to be agreed at all, and crime base witnesses --

  • Mr. Rapp has given us an example of a historical fact that I would have thought may not have been in dispute, given it's been shown historical.

    MR. KHAN: Your Honour, I don't have time at the moment, and I don't think it's the forum, to go through all of the facts. But some facts are non-controversial. Some historical facts -- well, "historical fact" is almost an oxymoron, in some respects, and it can't be soberly considered without reading all the evidence and taking instructions, because it may be a disputed fact.

    So those very simple, obvious facts I can agree in the next couple of weeks. I don't give a formal undertaking, but Your Honours, no doubt, will be notified and you'll see when those facts are agreed. But I don't have time, simply, to start agreeing the difficult issues, the core issues, which are going to help the Prosecution when I haven't read -- you know, we haven't had time to take full instructions and read the papers.

    The Prosecution have had five years; we've had less than five months since the pre-trial conference -- since the signing of the contract in September.

  • I thought documents were served on you in May.

    MR. KHAN: Your Honour, since the -- Your Honour, I was alone.

  • I see.

    MR. KHAN: Your Honour, I was totally alone. A team was put in place when a legal services contract was signed.

  • Incidentally, that reminds me, at the last trial conference, you said it had been signed but not approved. Has that been finalised?

    MR. KHAN: Your Honour, Mr. Registrar is in front of you. I haven't had any feedback since I signed the contract and gave it to Mr. Registrar.

  • I see.

    Mr. Nmehielle, you are on your feet.

    MR. NMEHIELLE: I don't really know what the meaning of "signed but not approved" is. For all intents and purposes, for the Office of the Principal Defender, we have a contract, of which -- with all the signatures acquired. All we need do is transmit Mr. Khan's copy to him, and there's no particular approval required. Thank you.

  • Perhaps I recalled the word incorrectly, but I know it was mentioned at the last Status Conference. Thank you for that clarification Mr. Nmehielle.

    MR. KHAN: Your Honour, I'm grateful to my learned friend, Mr. Singh. Your Honour, relevant in this whole context is the piecemeal disclosure. The latest disclosure we got, I understand, was on the 7th of January -- 8th of January. These are all factors that have to be considered sensitively if one wishes to be fair to the Defence.

    Your Honour, going back to Mr. Rapp's contention, it's not clear at the moment, at this stage of my preparation, that ECOMOG was acting on behalf of President Kabbah. That may be an issue of dispute. The conduct of ECOMOG is not without controversy.

  • Very well. I have indicated that I am loathe to make a 73 bis (F) order at this time. I therefore urge you, Mr. Khan, to review the basic facts which you have already indicated twice in court that you can agree and at least give those to the Prosecution; and to bear in mind the powers of the Court to direct if other matters cannot be done expeditiously and in a timely fashion.

    MR. KHAN: Your Honour, I will. As far as the other powers

  • [microphone not activated]

  • I have not forgotten that either.

    I'll move on, then, to the preparation for the Pre-trial Conference.

    Mr. Khan, you've already indicated to the Court that there are no special defences and that you will not be filing a statement, and I will presume that situation stands. So most of what, therefore, comes under 73 will relate to Mr. Rapp's office.

    Mr. Rapp, how are you progressing on the matters for a Pre-trial Conference? I think we've covered some of them already, actually.

    MR. RAPP: Well, the most critical thing I think that the Pre-trial Conference is tied to is the pre-trial brief and the so-called final list of witnesses. Our position is that we want time to make sure that the selected list of witnesses that we place into that pre-trial brief are the best witnesses and the ones that, in fact, will be called.

    We would prefer to have the order for the filing of the pre-trial brief and for the list of witnesses to be fixed 42 days before the trial date, on the same day that unredacted disclosure is due for the first witnesses. Of course, the Trial Chamber can require that it be earlier than that, and that's within the hands of the Trial Chamber. I believe it's then provided that the Pre-trial Conference would then be conducted after that was filed.

    We would be concerned about having to complete the witness list in the final sense until we've had an opportunity to see each of the witnesses, and particularly to determine which witnesses we may want to offer by written testimony under 92 bis rather than oral testimony.

    Obviously, whenever the order is made, whenever the Trial Chamber orders us to do this, we will provide the pre-trial brief, lay out our legal theories of the case, state who the witnesses are, provide summaries to the extent they haven't been provided before, and state exactly to what count each of those witnesses will be testifying. But that list may be longer the earlier we're required to do it, because we have to reserve the ability to include sometimes multiple witnesses if we haven't had an opportunity to speak to -- members of the trial team haven't had an opportunity to speak to these witnesses. And they're not quite halfway through meeting with these witnesses at this time.

    But as I indicate, we'd prefer that that be 42 days beforehand, but we will meet the Court's requirements to provide --

  • Forty-two days before the hearing date?

    MR. RAPP: Forty-two days before the trial date, yes. In other words, I would presume that would be around the 23rd of April.

  • I'm just trying to recall when the court is going into recess. I'm afraid I didn't bring that with me.

    MR. KHAN: Your Honour, of course, with your leave, I would like to respond to that in due course.

  • Any other matters before I ask Mr. Khan what his response is, Mr. Rapp? You're thinking only of the pre-trial brief. Could you refer me to that 42-day rule? I'm just looking for it here, please.

    MR. RAPP: We're referring to the 42 days in the protective order. I believe there's a protective order of 5 May 2006, and that's the disclosure of unredacted witness statements prior to testimony.

    Now, frankly, it would be our intention to disclose in unredacted form on that day all the witnesses likely to appear in the first trial session, so we would also at that time wish to file our pre-trial brief, which of course would include all of our witnesses listed by pseudonym, and certainly at that point some of them would have been -- of course, their identity revealed.

    But the way I read 73 bis is that the Trial Chamber, prior to the Pre-trial Conference, orders the pre-trial brief, and then at the Pre-trial Conference the pre-trial brief and other matters are then discussed in terms of what needs to be done for the trial. So there's no requirement that the Pre-trial Conference occur on the 24th of April. It could occur several days thereafter.

  • Mr. Khan, you wish to say something on that?

    MR. KHAN: Your Honour, indeed.

    It does seem, one has to say, that in light of the response relating to experts and then this new rather novel idea that a pre-trial brief be latched, be linked, absent a rule, to service of unredacted statements, the tendency seems to be creeping into the Prosecution of disclosure at the last possible moment rather than disclosure at the earliest opportunity.

    Your Honour, in international criminal law at the moment, both verified by the International Association of Prosecutors, we're moving much more to a cards-on-the-table approach, with disclosure as soon as possible.

    Your Honour, there's been no change of circumstance, in my respectful submission, since the last Status Conference before your sister judge, Judge Sebutinde, on the 22nd of September. Your Honour, on that occasion, a tentative trial date existed of April. Judge Sebutinde suggested an order that the Prosecution serve the pre-trial brief by the 30th of November, 2006.

    Now, Your Honour, I did not take up the learned judge's kind invitation on that occasion; I didn't press the Prosecution for service of that pre-trial brief. But that date, from the transcript, seems to have been discussed previously, along with the tentative trial date, by Your Honours in Freetown before arriving in The Hague.

    Your Honour, four months prior to the trial date is the relevant period. Given the June date which has been set by Your Honours in your latest decision, in my respectful submission, the Prosecution have no reason whatsoever, no good standing, no firm foundation, to oppose an order from Your Honours that disclosure of the pre-trial brief be served on the Defence by the 28th of February, which is four months before the trial date.

    Your Honour, that would accord and be consistent with the ruling Her Honour Judge Sebutinde was minded to make on the last occasion. In my submission, it would allow the Defence proper time to prepare; it would allow the Defence to understand the contours of the Prosecution case. It would have the advantage, with the annexes, of the list of witnesses it intends to call and the list of exhibits that Judge Sebutinde pointed to, the points of the indictment that the witnesses -- each specific witness would speak to, would help the Defence know the purpose for which each witness was being called.

    Your Honour, many of these statements are not obvious. Some of them have wide temporal periods predating post -- predating the indictment. Several cover different geographical areas out with the indictment, including not only Liberia or Sierra Leone but other states.

    So the sooner the Defence get the pre-trial brief and know what the Prosecution have in mind, the easier it is going to be to agree further facts.

    So, Your Honour, I will, with pleasure, agree these basic facts soon; but, in my respectful submission, if the Prosecution really are trial-ready, if they really are willing to be open and confident in their case, confident that they can properly disclose and allow the Defence to know the case against him, they should be ordered to give the pre-trial brief, along with the other requirements, the list of witnesses and the exhibits, by the end of February. They've had long enough. They've had two months extra since the last Status Conference, and in my submission, there's been no change of circumstance since that occasion.

    Your Honour, for those reasons, it's my respectful submission that Your Honour order that the pre-trial brief and all be served upon the Defence by the 28th of February.

    Unless I can assist further, Your Honour, those are my submissions on that issue.

  • Thank you, Mr. Khan.

    Mr. Rapp, have you any reply on counsel's submissions?

    MR. RAPP: Well, Your Honour, I suspect we're getting into a cart-and-horse kind of argument here. But obviously we don't know what witnesses to call if we don't know what facts we need to prove and which ones are stipulated, and counsel's delay and unwillingness, even though we did spend a great deal of time preparing these things that probably could have been spent more wisely on other things, I think makes it more difficult for us to prepare that pre-trial brief. But we will prepare it whenever Your Honours wish.

    Our main concern is that we have the time that's available to make our witness list as compact as possible and to make it as precise as possible. If we were to file it now -- you've certainly seen our case summary, you've seen the -- the Defence has seen the witness statements. And it's clear, by the way, if you look at a witness statement, whether this witness is talking about mutilation or pillage, whether he's talking about Kono or talking about Freetown. We don't think that the simple note of what count he's going to testify about is going to be all that elucidating to the Defence. We can do that.

    But having the benefit of this 4th of June trial date - I think it was Judge Cassese who said that sometimes haste at the front end can mean a longer process at the back end - we want to take advantage of this time in order to make sure that what we file is as precise as possible based upon the fullest possible evaluation of our evidence. And we don't think this harms the Defence, because they have our summary of our case and they have the statements of these witnesses in redacted form, which leaves the allegations of the witnesses that are -- the facts as to the material allegations clearly revealed to them, and so we don't see that they need that material, a pre-trial brief, in order to do other things in their case.

    We'd suggest the 42 days would work the best. Sometime prior to that we could work with as well. But it would be best if it were done at a reasonable time so that we can complete the best possible work on our witness list.

  • Right --

    MR. KHAN: Your Honour, I don't wish to be like a jack-in-a-box.

  • I recall you saying that before, Mr. Khan.

    MR. KHAN: Your Honour, I'm a man, unfortunately, of many words but most of them repeated, so I hope you'll forgive me.

  • Consistency.

    MR. KHAN: Well, Your Honour is most kind, most gracious.

    Your Honour, with the greatest of respect, I hear what my learned friend says, but the Prosecutor, of course, is well aware of his responsibilities. In my submission, the pre-trial brief should be focused by the Prosecutor in deciding, irrespective of any assistance from the Defence, what witnesses, what evidence, he requires to prove the case against my client.

    Your Honour --

  • First of all, Mr. Khan, I don't think you've got a right of reply to a reply. You've had a response, there's been a reply, and I don't think you've got a right of reply to another reply.

    MR. KHAN: Your Honour, I don't have a right.

  • Secondly -- yes. Secondly, when I look at Rule 73 bis (B) and the matters that have to be considered, they include, at subrule (iii) "a statement of contested matters of fact and law," a list of witnesses is at (iv), "admissions by the parties and a statement of other matters not in dispute."

    Now, we're not getting anywhere with those, and you've given me reasons why we're not getting anywhere with them, and because of your reasons I haven't made any orders against you in relation to those. I've asked you to work with them. So I'm bearing in mind that you have problems in fulfilling matters on your side that the Prosecution need in order to comply with 73 bis (B). Therefore, how can I impose a time that you stipulate on them when they're not -- when they don't have your part of the list that they're going to put in? Okay, true, they can say, all issues are in dispute. There's not seven days in the week; there's not 12 months in the year. Everything is on proof. But that's not going to get us anywhere. Let us be realistic.

    Their obligations, in turn, are partly dependent on certain matters that you have to fulfil, and I have not made an order against you on those, although I've indicated the powers of the Court. So let us meet -- try and strike a balance between the time you need and the time -- in order to inform the Prosecution and the time the Prosecution then will need to compile their pre-trial brief, in the light of what you have said.

    MR. KHAN: Your Honour, I do -- I think we're all cognizant of the difficulties detailed just now by Your Honour. The question, of course, is how to cut the Gordian Knot, because these difficulties persuaded the Prosecutor to ask for July start date and not oppose a September start date. So this difficulty, Your Honour, is a direct consequence of Your Honour's decision to fix a June start date.

    Your Honour, talking about days in the week, there are only seven days in a week, and there's a certain amount the Defence can do. At the moment we are going to start trial in June not being ready, but we will start because that's your order. But I've made it quite clear we will not be ready given the huge welt of material that we face. The position of the Prosecution and the Defence are not the same. They've had years; we've had months.

    Your Honour, at the moment I have been quite candid, with the greatest of respect, regarding what would be agreed. As far as orders are concerned, I don't see any order that can compel me to agree witnesses. There is simply --

  • I do not for one moment suggest -- I have been at pains to point out that I have not lost sight of the obligations --

    MR. KHAN: Indeed.

  • -- so let us not argue on things that are not in dispute.

    MR. KHAN: Your Honour, the question is how long does the Prosecution need? My submission was that the burden should be on them to show change in circumstance since the 30th -- since the 22nd of September, when Her Honour Judge Sebutinde was going to order them to disclose the pre-trial brief two months ago, on the 30th of November. I didn't force the point on that occasion, Your Honour. In my submission, they've had an extra two months. I'm asking that they be given a further one month from that occasion, so three extra months, and I can't see any change of circumstances that would merit a longer --

  • Can you refer me to the transcript, please?

    MR. KHAN: Indeed. Your Honour, if you'll pause with me a moment.

    Your Honour, whilst my learned friend is finding that, in all the different cases that I've been involved in, I've never seen, of course, either a matter of practice or form, the pre-trial brief being dependent upon agreed facts. In fact, many occasions what one does see is that after the pre-trial brief is given, many more facts are agreed because the Defence are in a better position to understand the Prosecution case.

    Your Honour --

  • I'm not -- please, Mr. Khan, don't get --

    MR. KHAN: I'm grateful to my learned friend for giving me the reference. It's 15:56:20, so 15 minutes, 56 ...

  • That's page 59, I think, of the transcript.

    MR. KHAN: Of the 22nd of September. Can I read it?

  • I have it before me.

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

    Your Honour, perhaps I should read it into the record, with your leave.

    "JUDGE SEBUTINDE: 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."

  • Yes, I have read it, and I notice Mr. Staker's response to it.

    MR. KHAN: Your Honour, I was just simply detailing the way that Judge Sebutinde was going and the very clear indication that she was about to give an order.

  • Thank you.

    In the light of the submissions by the parties, and on taking into account the matters to be dealt with under Rule 73 bis (B), I order that the pre-trial brief be filed by Wednesday, the 4th of April, 2007.

    Are there any other issues that I have to deal with?

    MR. KHAN: Your Honour, I don't believe so.

  • Thank you, Mr. Khan.

    Mr. Rapp.

    MR. RAPP: Just by way of announcement, and not intending to argue the issue at all because it will be an issue for Your Honours, we'll be filing next week a motion regarding videolink witnesses, and attempting to do that in a general way by categories of witnesses, simply from the practical point of view of determining whether there will be a videolink may take preparations and expenditures and it will necessitate decisions in terms of transport of witnesses as opposed to videolink witnesses. And if we don't bring that matter forward to the Trial Chamber, the system may not be in place to be utilised when we get to the trial date. We're going to attempt to do it in terms of categories of witnesses, understanding that the actual determination about an individual witness could be deferred to a later point.

  • I'm sure you've read the transcript of the conference of His Honour Justice Lussick in July, and I think Mr. Khan made his position very clear in relation to videolink witnesses in that Status Conference. And I think subsequently to that Status Conference there is an appeal tribunal decision of the ICTR on that whole question of videolink witnesses, or evidence being adduced via videolink in the light of objections by the Defence. I don't have the ruling before me. I'm acting purely on memory. But I just refer to it in passing.

    MR. RAPP: Okay. I don't wish to argue it, but I would invite Your Honours to look at the decision - I was personally involved in it - and it deals with the issue that the judges were present with the witness and the accused was by videolink.

  • That, indeed, was it, yes. They were in two different jurisdictions. But, as I said, I've referred to -- Mr. Khan, I think, has made his position clear, and no doubt when the motion is filed, we will await his response.

    MR. RAPP: Yes. It will be a matter -- he and I have discussed it today and it will be a matter of contention, but a matter that I think needs to be resolved if we're going to have such a system in place.

  • As you know, juvenile witnesses were dealt with by way of videolink during some of the trials in Freetown. In making that observation, I do not in any way preempt any of the decisions. I have not seen the motion, I have not seen the reply, and it would be improper to make any other comment and I defer from doing so.

    Incidentally, Mr. Rapp, I do recall at the last Status Conference there was a question as to whether the Defence team was finalised. I've asked Mr. Khan about his so I, in turn, will ask about yours.

    MR. RAPP: The choice of leadership of the Prosecution team is resolved. Ms. Brenda Hollis, formerly a Senior Trial Attorney at the ICTY and a person who worked as a consultant in the Office of the Prosecutor of the Special Court for Sierra Leone, will join the team as the leader, as the team leader, and will arrive in Freetown, I believe, on the 5th of February.

    The other members of the team, there is still a trial attorney position where an offer is outstanding and we're working on determining whether that will be accepted or whether we will go to an alternative candidate. But we hope to have that matter resolved within the next week.

  • Thank you, Mr. Rapp.

    So it would appear that, Mr. Khan, you have your team finalised but the Prosecution hasn't finalised theirs.

    MR. KHAN: Well, Your Honour, in fact, we don't have the team finalised. We're still awaiting one local investigator, but the Principal Defender is informed and the Prosecutor, in fact, are informed of developments.

  • Thank you.

    There are no other matters, then, counsel; is that correct?

    Mr. Khan, could I draw your attention to a practice direction --

    MR. KHAN: Yes.

  • -- by both Presiding Judges of Trial Chamber I and Trial Chamber II concerning the robing of counsel at the bar table.

    MR. KHAN: I'm grateful.

  • Yes. I think it's stated around July, or something, of 2005.

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

  • If there are no other matters, we'll adjourn. Close the court.

    I will not set a date for another Status Conference or a Pre-trial Conference. I will leave that for a date to be fixed.

    If there are no other matters, Madam Court Attendant, please close the court.

    MS. MUZIGO-MORRISON: All rise.

  • [Whereupon the Status Conference adjourned sine. die at 3:20 p.m.]