3 march 2004
Sir Geoffrey Nice
ICTY Senior Trial Attorney (1998-2006)
Length: 124 minutes
We have put in a sufficient amount of evidence to leave a responsible and broad record that would show we have not simply taken a single, naive or primitive line.
Following the closure of the prosecution case in the trial od Slobodan Milošević, Prosecutor Geoffrey Nice speaks about the complexities of trying a head of state and a conflict between the prosecution's duty to put the extensive amount of evidence and the interest of the judges and the world at large in seeing the case determined in an appropriately concise amount of time.
Today is March 3, 2004, a historic date. It's the fourth anniversary of our TV programwhich started on March 3, 2000, and one week after the official closure of the Prosecutor'scase against Milošević. It was a very sudden closure. Some called it abortion. Do you think that the case is aborted somehow? It's a totally inappropriate phrase. The case was closed in a, to the extent itwas in a hurry because of the timetable consequences of the very unfortunate, extremely sad resignationby judge May through ill health and the complications of leaving two or three days of evidence outstandingon the overall timetable of the trial. Whatever decision the Appeals Chamber, thePresident and the Trial Chamber may make about appointing or not appointing a substitutejudge was so serious that in the interest of justice and in the interest of gettingthis accused to the end of his trial we thought it better to close the case then and enablematters to move easily and clearly to the next stage of the trial. So, an abortion is a terribly inappropriateword. Somewhere during the first year of the trialyou have stated I think even in the courtroom that your biggest problem is how to pour oneliter of wine or water, I prefer wine, into a half-liter jar. Can you explain why that was the problem andhow much did you spill in trying to do that? The question actually could give rise to avery long answer but I'll try and do it in two short propositions. The first and most fundamentally importantpoint to have in mind is that trials like this, unlike any domestic trial, have a potentiallyinfinite field of evidence. A domestic murder or domestic robbery hasan identifiable and comparatively small total field of evidence. Whatever legal system you have you can ensurethat you've got the right evidence in. This trial has quite literally an infinitefield of evidence and a burden falls upon a prosecutor in such a case responsibly tochoose what evidence from that field will lay before the trial judges. And in order to present a fair picture it'sactually necessary to put in really quite a lot of evidence. It would be unfair against an accused justto call evidence that shows one very simple, perhaps rather primitive, view of history. We owe to justice, to this Tribunal and indeedto the accused responsibility greater than that. So from this infinite field there is stilla lot of evidence we should put in if we are going to enable the judges to make a responsibledecision that would stand the test of time. That is the first proposition. The second proposition or point is that weare in this Tribunal obliged - I believe really by reasons of some form of cultural imperialism– to follow the common law system as opposed to other systems. The common law system is a very slow systemof putting evidence in. Because it requires evidence all to be givenlive, basically, and to be available for cross examination. And accordingly, where we need to put in alot of evidence in any event if we are to be fair, we then have to put in a lot of evidencethat can be made to take a very great deal of time especially if, as some may judge happenedin this case, the accused wastes time in cross examination. So you put these two things together and inevitablya responsible prosecutors will be wanting to put in a great deal of evidence and morethan the judges - who have an eye on the clock and properly have an eye on the clock - morethan the judges will want necessary to handle when they see how long it is going to take. So it is a conflict between out duty to putthe evidence in by the method we have to use and the interest of the judges and the worldat large in seeing the case determined in an appropriately concise amount of time. So, that’s the longish answer. I have been aware this is a problem sinceI first came to this Tribunal. And indeed I expressed the view that the commonlaw system from which I come is inappropriate to these trials. I have been saying that since 1998, 1999,and I have been attempting in all the trials I have done here, all three, to introduceprocedural reforms that would enable evidence to go in more swiftly without in any way derogatingfrom the rights of the accused to a fair trial. In this trial we did achieve a number of proceduralreforms, sadly coming rather at the end of the prosecution’s case than at the beginning. Nevertheless by those reforms we have gotmore evidence in before the judges, of course, less on immediate public display, but morebefore the judges than would otherwise have been the case. So to revert to the end of you question: howmuch have we spilled? By which I take it you mean how much havewe failed to get in. There have been bits of evidence which wewould have preferred to have got in, including the staff that we were unable to call in atthe end of the case because we made the balance decision to close the case when we did. But I think we have put in a sufficient amountof evidence to leave a responsible and broad record that would show we have not simplytaken a single, naive or primitive line and thrust that at the judges. So, yes, we have spilt some, but I don’tbelieve too much. At the beginning of the trial in some of themotions proposing a different approach to the presentation of your case, you statedthat there is a danger of emasculation of the prosecutor's case. I remembered very well that term you used. So, how much do you feel emasculated by thefact that the majority of your initiatives and proposals have been rejected, at leastat the beginning of the trial? Not too badly emasculated, because as theprosecution’s case has developed we have been able to shift the focus away from thebottom-up approach of looking at crimes on the ground and we have been able to look moreat the case from high level witnesses or international witnesses or experts who have been able togive a broader view of both the historical events and of the mechanism by which thesecrimes are committed. So that at the end of it I don’t think thecase have been seriously emasculated. Bu it’s been quite a struggle to resolvethe various tensions between needing to put in evidence to show the crimes have been committed- when some would argue that a responsible lawyer representing an accused would haveconceded that, so needing to put in this evidence because this accused has conceded nothing- and wanting to put in evidence that gives a broader view and an intellectual depth tothe case. You also explain your case like a huge puzzlethat you have to construct - a lot of small pieces of evidence that you promised thatat the end of the prosecutor case the judges and the public will see the clear pictureof the main man who was behind the crimes alleged in the indictment. Do you think that picture is now finished,that you succeeded in constructing that puzzle or some pieces may still be missing? That is obviously always going to be for others,namely the judges, to decide, isn’t it? Have we placed enough information for thepicture to be drawn? Yes, I think we have, bearing in mind thatit’s in the nature of criminality, where it exists, that the criminal does his bestto obscure the image that others would have of him, so that the picture will typicallyemerge not just by beautifully drawn brush marks clear for everyone to see, but by theprocess of inference and deduction. Because the criminal process is usually lookingthrough the screen of the curtain that those with criminal intent will throw up to obscurethe vision of them. And the criminal process is concerned withpenetrating that screen by direct sight, by inference, by deduction. Have we laid enough material for all thoseprocesses to happen so that the clear picture can emerge? I think so. But before I part from this question, it isalso important to have in mind that these very crimes by their very nature are obscuredfrom view. It’s an incident of crimes of this particularkind, genocidal type of crimes, that perpetrators leave no clear trail, provide no nicely delineatedpicture and leave behind what may look like chaos to an uninformed observer, but whichon analysis is not at all chaos, but directed crime. So that, apart from the general problems oflooking at crime, these crimes are in their very nature designed to be obscured from view. The length of the trial and the length ofyour case... Can I just go back to one other thing on thelast point? Because it is sometimes insufficiently understoodwhere the point was referred to in the Kordić case by the somewhat, I found, unsympatheticjudge Bennouna, who in one of his exchanges with me, in what looked like an attempt tocriticise us, spoke of our case being impressionistic in nature. He said: "a bit of evidence here, bit of evidencethere". People who watch the trial, either for a day,or two days, or even for a month or three months, would like the case to come out 'pieceof evidence after the piece of evidence’ in the beautiful narrative that will featurein your retrospective film of the trial. It is never possible to do that. Witnesses don’t just fall in line chronologicallyso that he can tell the whole story, because this witness has a bit from here, has a bitfrom there, has a bit from there. So you’ll be calling a witness who maybecovered half a dozen topics over a ten year period. And secondly, witnesses just aren’t availableto us on demand. So we have to call witnesses when they areavailable and they will produce bits of evidence from parts of the impressionistic canvassand we just have to slot it in. People are unsympathetic to that. They should actually be understanding, because,after all, if they were one of the witnesses they would themselves say: "No, I am not availabletoday, I will be available next week, I can come to see you in six months time". In which case we have to accept them on thoseterms. You've been dealing with three indictmentsand 66 counts. Was it necessary to have so many counts? Some people call it a 'kitchen sink indictment',that you just put everything in and you will see what will remain? We certainly haven’t put in everything. On the contrary, we cut've a great deal out. If you look at the original intentions onthe Bosnia indictment, a number of municipalities then to be covered and see how limited isthe number we are now covering, you will see that the allegation or the suggestion thatwe put everything in is totally false. There is a balance here again that has tobe drawn. If you are gonna prove crimes on this verylarge territory, in three different conflicts, then you have to prove the crimes. You can’t have criminal verdicts withoutproof of crimes. If you are gonna prove widespread and systematicactivity then you‘ve got to prove crimes over quite a large area. It’s always a balanced decision - how muchis necessary and how much is sufficient under the Statute to which we are responsive toprove the case. We do not believe that in attempting to proveand in proving the crimes we've been overexpensive. On the contrary, we think we've got it aboutright. When people complain about the breadth ofthe indictments they are probably complaining about the amount of time it has taken to provethose allegations rather than the fact that the allegations are there themselves. On this you may want to reflect when the verdictsare in. If the accused is shown to have been justifiedin challenging line by line evidence of crimes by Kosovar citizens, by individuals in Bosniaand Croatia who suffered what they say are manifest crimes committed – if he’s justifiedin having cross-examined all of that because lots of allegations are found not to havebeen established, then there may be some validity in the criticisms against us - we have triedto prove too much and failed. If, on the other hand, all or nearly all ofthe allegations of crimes are proved, and his cross-examination is shown to have beennot to the point at all and in reality a waste of time, than the complaint that people directat the breadth of our indictments maybe, one will judge, should have been redirected atthe accused. Then I come back to the earlier point youraised to which I responded with observations about procedure – it’s been my view fromthe beginning that the crimes should have been susceptible to the far more efficientmethod of proof without necessarily calling all evidence live. If I am right in that general propositionand if this is the way in which this could have been done then crimes would have beenproved more swiftly, issues relating to crimes would have been much narrower and would havebeen properly identified by the accused and the judges and this complaint wouldn’t haveany currency or validity at all because people would see that if you've got to prove involvementin three wars you've got to prove the crimes committed in three wars and the issue is theconnection of the accused to the crimes. Long answer and very difficult. You’ll find a lot of criticism about thetypes of indictments we prefer here generally. That I find a more difficult question to answer. Because I think everyone would sympathise,I certainly sympathise, with the general desire to see these cases brought to a conclusionmore swiftly. Is it fair in a case with an accused likethis just to take one target event, if you can prove one target event, and forget everythingelse? I am not sure it is fair. If our case against a man like this is thatover ten year period, with themes of mental intent that were constant but also with approachesthat changed over time as he had greater or lesser success as a statesman, if our caseis that his criminality encompasses a ten year period, is it fair for the historicalrecord just to dive in and take one event that we think we can prove quickly and gethim convicted of something and sentenced? Or do we owe more to the people of the formerYugoslavia to have the whole story told? Difficult questions. And until there’d been other tribunals dealingwith war crimes which have tried a different approach, which have tried for the surgicallyrestricted trial, I think it is going be hard to answer. I certainly understand the concern that theseindictments are too broad, but I certainly don’t express the view that they are. We've been talking about proving the crimesand so on. The Tribunal was proud to call itself thevoice of victims but we didn't hear a lot of victims' voices, especially in the Bosniaand Croatia part of the trial. Kosovo was an exception. How do you explain that? I've already explained it, really. With so much evidence to put in, with thenecessary focus of that evidence being on the connection of the accused to the crimesrather than on the crimes themselves which should almost be accepted as established,we cannot indulge ourselves with evidence that, however heartbreaking and sensational,says nothing about the responsibility of the accused. We simply have to focus on the evidence thatdeals with his responsibility and there simply isn't time. It may be sad for the advocates who wouldlike to have the moment of glory in court taking a tragic witness, it may be sad sometimesfor witnesses who actually want to come and tell the whole tale themselves, maybe sadfor the newspapers and television and radio companies that would like to have more dramaticevidence. But however dramatic the evidence it isn’tgoing to help in the proper resolution of these indictments unless it points in someway to the accused. Therefore it has to be dealt with economically. We were always trying to explain, or I wastrying to explain to victim-witnesses, when their evidence is dealt with in a very compact,concise or summarised way, why that is hapenning. And I think they always understand. Although very occasionally they insist onsome part of their story being given live. When they actually insist I have always allowedit to happen. But by the time the victims comes here togive evidence they are so aware of what's involved in the work of this Tribunal thatthey are not only extremely cooperative and helpful to us, tolerant of the time, of thequantity of their lives that we take keeping them here waiting to give evidence, interviewingthem and so on. But they are actually understanding of theproblems we face and are not complaining of the fact that sometimes their suffering isnot given the air-time that others might think it deserves. I particularly remember one case - the oldman from Izbica who came here to testify and at the end he asked the judges or whoeverlistened: "Why nobody asked me what I survived, I am the only survivor of the massacre inIzbica!" Nobody asked him that question, not even thejudges. Let's go to the judges and their role in thistrial. Would you like to have more active judges,more involved in questioning witnesses, or impartial judges, like those in football whoare watching how the sides are playing their game? It’s another question that properly revealsa tension between competing interests. My guess would be, and it can only be a guess,that judge May who has set the tone of the prosecution case firmly from the start tofinish, will have recognised the danger for the timetable of judges who are over-involvedin questioning and either by example or, who knows, by discussion among themselves, reallyimposed on himself and his colleagues the duty to keep pretty silent. That’s only a guess, but it's certainlythe way it worked - they say almost nothing. That means that you don’t suffer in thetimetable half an hour of questions from judges or an hour of questions from judges whichcan do a huge damage to the timetable and deprive us of witnesses we would otherwisehave been able to call. That said, my own preference would be forjudges who feel that they can ask more and become more involved, for several reasons. First of all I think it is likely to stimulatetheir interest if they become more active in the questioning. And probably improve their own active knowledgeand memory of the case. We always knew that judge May always had anactive knowledge of the case because he made hand-written notes. And judge Kwon also revealed a very detailedknowledge of the case. But it's hard always to be sure how much theyknew.
It’s hard to know if they have anyerrors of understanding if they don’t ask questions and become involved. The second way in which asking questions ishelpful is because it does give all the parties an incling, an idea of what the judges arethinking. There is nothing wrong with that. Because if the judges indicate that they areanxious about particular areas of the evidence or particular topics, then the parties canbe responsive either in the questions they ask of individual witnesses or in the evidencethey call. I think that where you have the legal processwhich allows a judge to be reasonably actively involved in questioning - which is somethingthat happens in many civil cases, non-criminal cases in England, judge would be activelyinvolved - the legal process gets the best out of both the advocates and the witnesses. Going back to the first point, that is notprobably the luxury that judge May felt he could allow himself or his colleagues in thiscase, because of the huge timetable constraints. And I have seen other cases earlier with chambersof a different composition where judges’ questions can occupy more times that the questionsof the prosecution. How do you see the role of the amici in thistrial? It was plainly right to have an amicus tolook after legal issues that the accused would not take or might have missed. There can be no doubt about that. Of course I would have intervened on the accused’sbehalf in the absence of an amicus. I would always have interevened on the accused’sbehalf if I thought there was a point being missed or something happening affecting hisrights and so on. That was a good thing there was an amucusthere. It may be thought that the role they’veactually assumed has been to be his defence lawyer in a way. Not just arguing legal points or picking uppoints that he has missed in his cross-examination but actually arguing the case for him. To the extent that they have done that, Ithink that's probably undesirable and unnecessary, particularly once the accused became accustomedto the demands of cross-examination and showed himself well capable of cross-examining endlessly,and indeed properly when he choose to do so. So, to some degree I think they have gonefurther than was required or appropriate. However, having said that, if the case isever looked at on appeal, the liberty the judges gave the amicus will rebound to supportand give security to any convictions that may be returned. Because it would be very hard for the accusedor anybody then acting on his behalf, or for people viewing the trial historically in yearsto come, to say that he was inconvenienced or prejudiced by acting on his own behalf,when he had this – as you’d call it in cricket – this long stop, able to save factualand legal points for him that he missed. Did you miss professionals on the other side? Real professionals, defense lawyers? And do you think things would have been differentwith real lawyers on the other side? Yes, I think. Whether I would have missed them in the sensethat I would have preferred to have had them would depend on what they were like. I've been in trials here where the oppositionhas been a pleasure to work with without that opposition giving any points away, and I'vebeen in trials where the opposition has not been a pleasure to work with. However they behave, defense lawyers havethe effect of sharpening the performance of the prosecution and I think there is absolutelyno doubt in this case that we would have been subjected to many challenges in respect ofcalling witnesses, the time that we called them , the notice we gave in calling witnesses– we would have been subject to many challenges if there had been lawyers appearing for theaccused – to which we were not subject. So to that extent we actually had quite aneasy ride. It’s largely a matter of the accused decliningto have anything to do with procedure. He raised no objections himself and the amicidid not raise them on his behalf. Therefore, if the judges didn’t themselvestake the view that what we were doing was, for example, too late or too burdensome inthe amount of material we were providing, than our presentation of evidence and thetiming of it met with no objections. So to that extent, we’d probably find lifeeasier without opposition, but I would have much preferred the accused to have been representedat all stages. Can you give me the characterization of theaccused as a lawyer? Did he improve over time, how do you see him? He’s obviously intelligent enough to dothe job. He’s been a lawyer, though not of coursein this system and not a courtroom lawyer. He undoubtedly did improve, he became morefamiliar with the process of questioning. That said, it is, I think, apparent to everyonethat he abused the system. He abused it in several ways. First, it may be thought, looking at his conduct,that he was particularly hard and harsh on witnesses who were themselves weak. What it shows about the character of the manis for others to judge. But if he had a Kosovo or a Bosnian crimevictim before him, he could be quite merciless and in a way that was almost inexplicablein my judgement. I from time to time, not usually in publicsession, drew to his attention through the judges the callous nature of his questioning. But it did not have any effect. So on a personal level, and it is for othersto judge looking into the matieral, but on the personal level it seems to me he abusedthe system. And indeed some would say that what he didwas really a reflection in court of what have been done elsewhere. He then abused the system in another way. That is all too well known and charted. He used the opportunity to question simplyas a way of advancing the particular political or philosophical position, if he has a philosophicalposition, that drives him. And he did that for reasons entirely unconnectedwith this trial, and that’s an abuse. And the judges tried, but I think found itvery difficult, and understandably so, to stop his doing that. If you look carefully at his questioning ofseveral witnesses, particularly in the last months or a year, you‘ll also find thereis a pattern in what he was doing, I believe, but again it’s for others to judge, fromwhich you can see that he knows perfectly well what he should be doing in cross-examination,which is challening what he doubts, putting his own positive case and getting from witnesseswhat is helpful to him. He knows perfectly well that’s what he issupposed to do, but what he would typically do is this: given two hours to cross-examinehe would start off by complaining that two hours is not enough, run up to an hour anda half using it as a soapbox to make political statements despite complaints by the judges,ask for an extention of time on the basis that he can’t get his cross-examinationin, have a usual little ding-dong battle with the judges and gets another fifteen minutesor whatever it is, and then right at the end you’ll see that he asks the questions thata clever lawyer or properly experienced lawyer would be asking. The prime example of this in recent week wasgeneral Vej, the former chief of the General Staff of the Hungarian Army and an ambassador,who gave evidence in quite extraordinary circumstances of his own, because he had gone through somuch to give evidence as a result of an accident he had had. And he sat there in Budapest for an hour anda half having his time wasted right until the last five minutes. Then when the accused was compelled - becausehe was told he’d only got five minutes left, if you look at the whole cross-examinationand the frustration we were all suffering at seeing this really valuable evidence timebeing wasted – in the last few minutes he asks one, two, three, the questions the experiencedlawyer should be asking. And so he’s shown to me that he knows perfectlywell how he should be conducting his cross-examination and that there is a plan of his to use andwaste time. And the result of all this is that he thensays after his three relevant questions: "I can’t finish asking the questions I wantto ask because you cut me short again". I think it’s very contrived. Some people think that he's perfectly awarethat this is his last chance to communicate with Serbia and the people around the formerYugoslavia and the world, because he knows that at the end he will finish in some prisonand then he can only communicate with his prison guard without TV cameras, without thepublic. Do you share that view? I don't think it's really for me to commenton broad political matters. I'll stick to what I'm employed to deal with. You said it was somehow useful for you thathe has shown his real nature in the way he was questioning, especially the victims. And did you find something useful for theprosecution in his political speeches, something you didn't know before? Because he was talking so much he must havesaid a lot of things he was not supposed to say. Yes, he said some unguarded things. I am afraid I haven’t given thought to itin the preparation for this interview so I can’t pull many of them out. But he has said some unguarded things, eitherby way of concession. The illegality of the attack on Sarajevo,for example, he makes a concession about that. The very, very muted concessions he’s madeabout crimes in Srebrenica. So, that’s helpful. He’s also made some statements that maybewe can show to be demonstrably false. Although what he asks by way of questionsare not perhaps evidence in the case, that is for the Chamber ultimately to decide, it’sobviously valuabe in the overall setting of this case if he repeatedly suggests to witnessesthat he only learnt of what was happening at Srebrenice on day X if we are subsequentlyable to prove or able to prove by other material to which he hasn’t been paying attentionthat in fact he knew about it far earlier than that. In due course we would draw those inconsistenciesor differences to the attention of the Chamber. So yes, what he said has helped us. Could you explain Milošević's power oversome insiders? How he exercised his power, how he turnedsome people to change their position. Say, captain Dragan. At the beginning of the direct examinationhe gave the impression that he was very comfortable to testify for the prosecution, and then hesuddenly changed everything. How do you explain his power over those peoplenow in the courtroom? I don’t know that I can. And I don’t know that captain Dragan isa particularly good example of the accused’s influence. Not enough is known about captain Dragan’sperformance here for me to comment on that specifically, save to say that that was not a part of the trial that will be judged ever to be satisfactory. If you look beyond that particular witness- who, as I say, has not I think shown to have been connected to the accused insofaras he’s shown to have been connected to anyone at all at the time he gave evidence- if you look to other witnesses, for example Rade Marković, but there are others, thesewere witnesses who I always intended to call knowing that they would give only partiallyevidence that would be helpful to us, in circumstances where they would be saying things that wouldappear to be favourable to the accused as to the balance. I explained at the beginning of the case whyI would do that and I don’t believe it would have been an incorrect course. On the contrary, I believe it to be absolutelythe correct course, because these men were for the most part men who would not be calledin the defense case, who were able to throw light on the accused that wouldn’t be thrownby any other witness. When they came to give evidence they of coursefound themselves - he's just one but there were one or two others - in an interestingposition. For one reason or another they had a desire,as we judged it, to tell the truth about some important aspect of the story, and yet theyfound themselves compelled to say favourable things about the accused as to the balance. I can’t at the moment point to any exampleof a witness saying something in these circumstances favourable to the accused as a result of immediatepressure by the accused on them. Although in court he could exert power ofpersonality, so you have Rade Marković calling him Mr President throughout his testimonyand so on. But there is no example that I found of immediatepressure being made. Rather I think did these individuals findthemselves still loyal to him in part, sometimes loyal to him in whole, notwithstanding theirdetermination to give evidence to the prosecution judged to be true in respect to the otherbits in the overall history. And this is clearly a mark of the power ofthe accused. He is and was undoubtedly a very powerfulpersonality. The power of his personality, of course, issomething that would feature in the judgement that the court makes about him in due course. Did you learn anything new about the accusedduring these two years? Did you get some new ideas about him thatyou didn't have before you faced the man in the courtroom? I can’t really remember. I tried to approach the thing without anypreconceptions. I suppose my understanding of an impressionof the man has simply developed as I’ve read the material and have seen him in court. In court he gives little away to me, apartfrom what I'm sure he gives to anyone, that he is a capable of being cold, professionalin the sense that he is well prepared, well organised and, as we’ve already touchedon, apparently unsympathetic of individuals, particularly individuals who aren’t in anexalted position. Rather interesting. And one thing is interesting about him. He is a great respector of status. He finds it very difficult to be confrontationaland aggressive to top generals and top politicials, not impossible but he finds it difficult. He prefers still to have a cosy or comfortablerelationship with them whereby he would seem to be an equal. And that is quite interesting, I suppose. I imagine he finds it quite difficult to survivewithout jokes because anecdotally everybody says he was capable of being charming, capableof being amusing. He has to in court present himself day inand day out as a man who could find no humour in anything that is happening there and indeednothing that is happening there is particularly funny for him. So he’s only presenting a very partial sideof him to us, very well prepared and vigourously maintained. So I don’t know that I have found out anythingparticular from his presentation in court beyond what would have been available fromthe papers. You said he's well prepared. Do you think it's his own work or his legaladvisors'? It has to be his advisors'. Any witness that comes in he's got more questionsto ask than there is going to be time. I think there's been few witnesses where he'snot used the maximum amount of time available to him. And to prepare that number of questions witnessafter witness is a major task and he's been given a lot of assistance. I suppose that you have been his major sourceof information with the exculpatory material you have given to him, that the disclosedmaterial is the main source of information? I don’t think it’s the main source. It is a source. And he’s used it. But it has also been totally obvious to usthat he had access to secret service files on individuals because he was frequently askingquestions about individuals that were simply not known to us, not as a background. So he’s got our sources of material andhe’s got his own. Again, since this is part of your historicalrecord it’s worth my reminding you that our obligations to provide exculpatory materialare enormous and have resulted in us providing him and his associates a colossal amount ofmaterial for them to use if they wish to. He, of course, can always complain that wehave given him too much, that we have buried him with material. But in fact we have no option but to provide. We had no option under the preexisting rules,rules have now slightly changed, but to provide him with the exculpatory material. And providing he’s got the teams to go throughit, it does indeed provide him with a material to use in cross-examination and he has doneso. So, you've been working as his investigators? Sort of. Judge Hunt called it the parallel trial orthe shadow trial or something like that. For all the trials in this institution, whilethe ordinary trial is going ahead, in parallel there is an exercise going to make sure thatnothing unfavourable to the accused is missed by him. I haven’t got the immediate statistics,but if you look up in the latest public filing of the Rule 68 report, prepared by Dan Saxon,who is focused on this for our trial, you can actually get the statistics in financialterms of what it has cost, and it’s in millions of dollars, to provide him with this material. I saw the document, but I don't remember seeingthe cost. I think you’ll find the cost in there. Have another look... I'll find it here for you, but... That's very interesting. Something I can write about now in this interregnumbetween the cases. I wanted to write about that but didn't havetime. What was the influence or the role of outsidefactors on your case? You know, the cooperation or non-cooperationof different governments, documents you get or did not get. How much was your case influenced by thisoutside factors which were not under under your control? I think probably the word influence is wrong. I don't mean that critically. We have to go back to the beginning. Our duty is to go and find evidence, whereverwe can. Member states owe a duty to provide us withevidence wherever they can. This Tribunal, as you know from your longassociation with it, was initially heavily dependant on cooperation of, shall we say,friendly states in providing material, because they knew better than we did where to look. They knew better from their own, presumably,intelligence gathering operations what we didn’t know. And it would be quite inappropriate in lookingat this trial, but any of these trials, not to recognise that this court is dependenton and has been dependant on a high level of cooperation by member states of the UNproviding voluntarily material that they would otherwise keep for themselves and would keepprobably locked away for 10, 20, 30 years before showing to the public. The degree to which they have provided everythingthey’ve got is something I can’t help with, because I only know what I am given. Occasionally you have a guess at what youhaven’t been given, and where you’ve got a hint that something hasn’t been giventhen we go and look for it, pursue it. So that’s point number one – heavily dependanton a great deal of cooperation. Sometimes it comes with restrictions and redtape that drive you mad. But that's about all I can say on that. When you then look at the states of the formerYugoslavia and its constituent republics, cooperation there has in reality been non-cooperation. I don’t mean that they have not cooperatedat all. But it is not being cooperation, it’s notbeing Serbia saying: “We will look into our archive. This is what you would like, here it is. We’ve looked into our collective memory,these are the witnesses who you should speak to. Here they are.” It’s always been us saying: “Uhuh, wethink there is a file on this unit, this individual, this topic, please hand it over." And usually being met with reasons why itshouldn’t be handed over. And only at the end of pressure and compulsionand court process do we get this material. How history will view that response of theformer Yugoslavia to this Tribunal – I don’t know. It may be that its citizens in the next centurywill say: “Well, that was good. They were acting in defence of our nationals. And they were keeping the pictures as confinedas they could, only letting out what they had to.“ Others may say: “What a cryingshame, that when it was available to the leaders in Serbia and Croatia simply to say: 'Look,we know where the best documents are. They are not gonna, in one sense, do us alot of good because they are gonna show us warts and all, but for goodness sake, let’sget it all out and let’s have these trials brought to a rapid and full conclusion'.” I dont’ know. The citizens in the next century or the nextcentury may say that would have been a better solution. I obviously would. In this case, as in all cases, particulalryleadership cases, documents are the key because they record, sometimes verbatim, what wassaid contemporaneously by the people charged, in this case Milošević. We have, through the intellingence and skillof one or two individuals on this team, got some absolutely, startlingly good documents. Very late in the day did we get them and theyare only going to be available at the moment to a very limited extent for public view. Maybe later we will be able to make more ofthem available for public view. But we have got them. And they I think are going to provide in thistrial a bedrock to support conclusions that the judges may ultimately make. But coming back to the original question ofhow we’ve been influenced - we have been affected and restricted by outside influenceson what we can prove. And we have only got as far as we have bya combination of insight on the part of individuals discovering what we should be looking forand then using the powers of the court and powers of persuasion and negotiation to getthe material. You said that the documents have been handedover and some of them will be made public or parts of them will be made public soon. Is it possible at all to make a kind of auditof the prosecutor's case without knowing what was said in closed session and without accessto sealed documents. How important is this part of the trial forthe overall prosecutor's case? Dealing with live evidence the judges havebeen very cautious about allowing closed session testimony and there's been really very little. I did have the figure last night of the numberof closed session witnesses, but it's under twelve or under ten, which is in contrastwith earlier trials. And in for example the great contrast withtrials in Arusha for the Rwanda conflict. So that's good and I don't think there willbe serious difficulties in auditing the live evidence simply by reason of having to excludebits that are in closed session. On the documents I think the problem is muchmore significant because the fundamental documents on the Bosnian conflict, at least the fundamentaldocuments that we have, for the largest part are not at the moment going to be publiclyavailable. I should also draw to your attention that,although we have got some very good documents, there are other documents that we haven’tgot, in particular the Republika Srpska contemporaneous and probably stenographically recorded recordsare not available to us. It’s been said they have been destroyed,I think. But really – that all copies of documentsof this kind would be destroyed must be open to some doubt. But that is the current position. If you work on this hypothesis that even ifSerbia-Montenegro, Yugoslavia, how would you describe it, would have been cautious in recordingwhat it was giving by way of help to Republika Srpska, because it knew the record could havebeen embarassing to it, the receiving state, the RS, would have no need to be particularlycoy in what it said or allowed to be recorded, if you work on that hypothesis, then the RSrecords might be even more revealing than the records we have been able to get comingfrom the state that was giving assistance. But, we don’t have them. And in due course, if anybody ever discoverswhat finally happened to those documents, if they never come to us, it will be for othersto reflect on how wise it was to supress or to destroy those documents at the time whenthey could have thrown so much light on these terrible events. There is almost a consensus among the media,the journalists following the trial or occasionally following it, that the prosecution has notpresented convincing evidence on the genocid charge. Of course, there is this problem which wejust mentioned that those documents are not in the public domain, but what was in thepublic domain, as I said, there is the consensus of those people who have been writing aboutthe prosecutor's case that you didn't present convincing evidence about Mr Milošević'sintent and so on. Do you share that view? There is almost a fascination with genocide. Some journalists, especially in Serbia, presentthis alleged non-existence of genocide evidence as a triumph for Milošević, almost as ifhe's been acquitted. I certainly don't share that view. And I'm not really well advised to go intotoo much detail given that we'll no doubt be receiving arguments from the amicus onthis topic today or tomorrow, very soon, and responding to it in a few weeks, with thejudgment of the court following probably in a few months. So I'm not going to go into it in too muchdetail. But there are some important general observationsthat I can make. First of all, trials of this kind are trialsby lawyers-judges, qualified lawyers, not by journalists. And I am, I don't mean to be dismissive ordisrespectful, utterly uninterested in the view of journalists on whether the genocidecase has been proved or not, and also entirely untroubled by it. Not just because I would take that attitudegenerally in relation to a journalist's view on the sufficiency of evidence when my audienceis judges not journalists, but because genocide is a crime of recent creation, as we all know- the word didn't exist until the 1950s - and still in the state of development, principallyat this Tribunal and around the Tribunal, and through the processes that have led tothe creation of the International Criminal Court, all of which will feed into how judgesmake decisions in this case and in the next case about genocide. So that in truth the question of establishinggenocide or not is a technical legal issue which is unlikely - I don't mean this to soundpatronizing - but it is a technical matter, unlikely to be readily understood by journalistsfor whom genocide, as for the public at large, is an emotional topic. Let me explain why it's an emotional topic. If you take Stupni Do, a small village nearVareš in Central Bosnia, where there was a massacre of, I can't remember the numberof people, but I think it was about 30. And the massacre was a terrible crime, there'sno doubt about that, with motives that were never entirely clear but may have had to dowith black market as well as with ethnic issues. If you go to Stupni Do there's a small memorial,a water fountain, a very nice memorial, where it lists those who are dead and speaks oftheir killing being genocide. The word is adopted by ordinary people todescribe what is to them unimaginable criminality in the form of numerous killings, in thiscase 20, 30. And so the word belongs to the people in thatemotional way. But it also belongs to the lawyers who aretrying to develop it as a well-defined crime for use in particular circumstances. The use by the lawyers and use by individualsdo not at the moment match. The one has not shrunk onto the other althoughit may be thought desirable in due course that the meaning should become more closelyidentified one with the other. But as long as the word has this enormousemotional significance people, journalists and others will attach to its use in criminalcases and verdicts about it in criminal cases a greater significance than it probably merits. And in doing that they of course also reflectwhat is more generally the truth about journalism that simple dramatic stories are more appealingone way or another than complex stories that require detailed understanding. It's a far more exciting story to say Milošević'sconvicted of genocide or indeed Prosecution fails with genocide charge than to recordthat the prosecution has succeeded in linking the accused to an enormous number of crimesinvolving a vast number of deaths, if were this to be the case, and a vast number ofexpulsions in the form of ethnic cleansing even though those crimes for very particulartechnical reasons are defined other than by the word genocide. And we have to guard against being responsiveto the desire of headline writers to have one or the other and to remember that thisis a deeply technical point. It's a legal point and it's not going to beaffected by the fear of an outcry one way or another in the press, at least at my handsit's not going to be affected by that. With those general observations in mind, youknow that the crime of genocide as a crime requires a quite specific mental state onthe part of an accused. You also know that the evidence in this caseis almost unequivocally and incontrovertibly to the effect that this accused was not perceivedof as a racist. On the contrary, he can lay some claim tobehavior that shows he was not a racist and that may - I wouldn't say it does - it maymake establishment of genocide more problematic, certainly one form of genocide, genocide takesvarious forms. But as we approach the time when the firstlegal decisions about genocide in this case will be made over the next weeks and monthsyou may want to reflect on this question: What is more wicked - to be someone who happensto have been invested by whatever historical processes or upbringing with irrational andmanifestly evil intentions that are racist in origin and that lead to thousands of peoplesuffering, what's more evil, what's worse - that, or somebody who brings about the sameconsequences but simply out of the personal, calculated desire for personal power? Which is worse? Now, that is already a concept, the distinctionbetween the two, with the possible consequences for criminality that those two different conceptsbring. That's too complicated for a headline writer. And it will never be picked up because peoplewill only want to say "convicted of genocide" or "prosecution failed genocide". But I suggest that on analysis there is verygreat difficulty in deciding which of those is, in a sense, the more wicked. Do you regret that the genocide charge wasnot part of the Kosovo indictment? In that case the intent was clear and theaccused stated the intent in the court when questioning witnesses about Albanian rapists,terrorists, killers and so on, not making a distinction between terrorists and the people. The intent was absolutely clear in the Kosovocase. No, I'm not going to respond to that question. I suspect that if there is any overall driftin opinion over the next few years, decades and so on, it may be not to include genocidemore often but to restrict genocide even more than it's been restricted so far for chargingpurposes. And in the same way as the judges here inthe case of Jelisić were very concerned that - we thought at the time improperly concerned- were very concerned that genocide should only be reserved for particular levels ofgravity and involvement, it may be - and I express no view, I'm just saying it may be- in time to come that people will move towards restricting genocide more to the Rwanda typeof conflict, where genocidal intent is so apparent and so clear to see, and not tryand apply it to more complex crimes of the kind we have here, the gravity of which canalways be reflected, as I've just indicated, in the range of other crimes without bringingin the attendant emotional problems of winning or losing on this crime of crimes, as it'ssaid to be. So you expect the amici will file a No Caseto Answer motion on the charge of genocide? I imagine so. I'm just guessing. It will be decided in a few months? But they have to wait for a new judge, twojudges cannot decide. No. Assuming that we don't start the whole caseagain, there will be a new judge appointed and he'll have to read himself into it andhe'll be one of the deciding judges. That would be my next question. I found two parallels between this and theJelisić case. The first one is genocide, and you owe methe answer to that. Do you have some personal problem provinggenocide because it may happen for a second time that at the middle of the trial the accusedis acquitted? Wouldn't trouble me at all. I have no problem with that sort of thing. And the second possible parallel is that Jelisićalso didn't want to give his consent for a change of judge. Remember? You had to wait nine months until judge Riadcame back from the hospital. If Milošević insists on a retrial and thejudges I don't know why accept that, would you do something different if you had a chanceto start again? First of all, it wouldn't be for me to decide. It wouldn't obviously be for me to decideon my own. And I'm not going to prejudge in any way whatothers might do in those circumstances. But in answer to the general question - werethere to be a retrial from the beginning would we do things differently - we'd be prettyuseless lawyers if we thought that everything we'd done so far was perfect because thanwe would have shown ourselves incapable of self-criticism. And given the problems of conducting a trialthat's already taken two years to reach this stage I think you could realistically expectthat there would be careful examination of the state of the indictments to see how theycould be streamlined for a fresh trial. And whether that would have any effect onthe inclusion or exclusion of account of genocide I have no intention to say. I repeat, it wouldn't be for me, it wouldbe for others. The question was not about genocide. No, no. But we would do things differently. It would be wise to... Since you are ready to admit some mistakesand since I've shown you The Times article about how Iraqis are learning from Mr Nice'serrors... A rather bold statement. It's without any form of detail... What do you think was your biggest mistakein these two years? I don't think that's a sensible question. I mean, it's a sensible question for you toask, but I don't intend to answer it, not because I'm, as I've already indicated, shyof acknowledging that trials are necessarily imperfect, but because I think it's betterif I maintain... better not to answer that question... You want to keep your cards open? No. No. It's a difficult question to answer becausefor good or ill I take general responsibility for everything that happens in this case,and therefore I don't want to go behind that. Apart from Bora Jović's mobile phone, whatwas the most dramatic moment for you in these two years in the courtroom?... Did you have some particular moments withsome people? I do, but I better not tell you. It was one judicial question, an intervention,that was the most surprising part of the case. But I'm not going to remind you of that. I can't think at the moment. If anything else comes to me I'll let youknow, but funnily enough, I don't find it a particularly dramatic courtroom to be in,on the contrary I find it..... We were discussing the most dramatic momentfor you. As I'm saying, I didn't find that courtroomparticularly dramatic. I find it quite sort of unexciting in feel,I'm afraid. I'm sure that will sound a bit sort of spoiledand perhaps be a bit disappointing but I don't find it a very exciting place to be. It's too slow for me, far too slow. And without opposing lawyers, without anydaily contests to fight and win or lose, without any debates to have, it's not a very excitingplace for a lawyer to be. And work has to be done. Just going back to the dramatic moments, therehave been some moments of contrived drama, perhaps overstated drama, like Lord Ashdown'sanswers which may be thought were amusingly emphatic, the ones about ‘you'd be sittingwhere you are'. Whether it really added materially to theweight of evidence, I'm not so sure. Maybe it did. And then there were surprising moments inWesley Clark's evidence. You'll remember that when you saw it subsequently- the reading of the testimonials when he was challenged to his character. So things like that will stick out as quitememorable without being sensational in legal terms. Have we had the equivalent of somebody confessingor somebody suddenly providing a piece of evidence that was unforeseen and changes thecomplexion of the case, I can't think of one. It's been a slow grind of getting the evidenceout. Have we had evidence that's gone materiallyworse than we expected, apart from Dragan to which you already referred, and apart fromthose early Kosovo witnesses who appeared falsely to deny involvement in the KLA, Idon't think so. But I haven't reviewed the witness list beforethis interview to jog my memory. This is a personal question: What do you thinkof Babić's testimony? It was one of the most important testimonies. Yes. Very important testimony. The most important. Yes, absolutely. And a signal to others of what could be done. So, let's conclude this part. What did you find as the biggest challengefor you professionally in those two years? Obviously it was a challenge to get myselfacquainted to any significant degree with this enormous amount of material. And it was particularly difficult to do itin the setting of an office like this with complicated, sometimes overcomplicated, managementstructures, that made running this as a single case very difficult. So that I actually landed up spending a greatdeal of my time, more than I would have wanted, on management issues that probably shouldn'thave arisen outside court, in the same way as I spent a great deal of my time insidecourt focusing on management issues, if you can so describe them, procedural issues, whereI was like a time-keeper. As I said to the judge: "I spend all my timethinking about time." And those two challenges were burdensome andin many ways boring. I would have preferred obviously, as any lawyerwould given this duty to prosecute this case, simply to be able to get on with the case,the facts, the theories, to get to know the evidence and the witnesses, to get to knowthem in court and to present that material to the judges. But before you get there you've got to gothrough all the management in the office and then you've got to go through all the proceduresin court, inappropriate though some of them were. So I suppose those are the biggest problems. Calling the evidence, making the argumentshas always been the easier bit. What do you expect now in the defense case? I think the defense case, whenever it starts- I suspect the June start date is overoptimistic but we'll wait and see - will be slow becausethree days a week is the maximum that it's going to run out. And I think it'll be very difficult for theaccused, even with the huge assistance he'll get from Registry, to fill three days weekafter week with evidence. So it'll be very slow. I think a lot of evidence will be called thatwill be irrelevant and we'll have difficult decisions to make about whether we even botherto cross-examine the witnesses at all or whether we just ask them nothing. And then we'll have some interesting witnesses. But I suspect without knowing at the moment,but I suspect that we've probably got the material at the moment which if we carefullyanalyze it - will paint a picture of the accused with consequences for criminality that thejudges must decide upon. And I doubt very much if that picture willchange significantly by defense witnesses whoever they may be. So I think the picture is actually prettyfully there. How can you prevent the revictimization ofthe former Yugoslavia by Milošević's defense case because basically that will be (the case). It's my prediction that it will be a revictimizationof all the victims of all the wars there. How do you mean by revictimization? Do you mean Serbs in particular or? Including Serbs, because he will repeat allhis paranoid conspiracy theories in which a lot of Serbs believed for many years andnow are ashamed of that. And he will accuse again Albanian terroristsand rapists, Croatian fascists and Muslim extemists and mujahedeens. He will reopen the wounds if he adds insultto injury. It'll be difficult to stop that. The judges, in particular the present presidingjudge, Judge Robinson, will be disinclined to stop it because they've already allowedit in in general terms. We can restrict it by declining to cross-examineon it, as I've indicated. The problem with that is that people may saythat by declining to cross-examine on it we are acknowledging the truth in it, as opposedto simply asserting its irrelevance which would be our position. Wait and see I think what attitude we take. My present inclination will be to treat thecase as the legal case that it is, and if the evidence is irrelevant not to touch it. And to leave him with the responsibility forreopening the wounds. But it's difficult. But there is a wider mission for this institution. By that you will not have reconciliation,because his intention is to stop the reconciliation. Of course that's your judgment, it's not forme to make. I understand that, but you may think thatif a prosecution starts... Although the institution has a wider mission,a wider purpose, I accept that, it doesn't say that it's the prosecution's duty to setrecords straight where they are irrelevantly raised and inappropriately raised in court. And I think it would be quite a step for theprosecution to take to decide to cross-examine for those purposes. I think probably our better course is repeatedlytime after time to remind the court why we're not cross-examining. I think rather than try and fulfill that partof the institution's function by cross-examining on behalf of Croats, Bosnians, Albanians,I think where cross-examination would not serve the forensic purpose we must every timesay that we're not cross-examining not because we accepted but because by cross-examiningwe would be doing that which is inappropriate, and reminding of the judges and anybody elseviewing the trial that the accused's objective in leading this evidence may be the obliqueone of reopening, as you would put it, wounds. We'll have to wait and see because it's ajudgment call you make on the day itself. Tell me a little bit about your legal experiencebefore you came to The Hague. Common law system as practiced in Englandhas had two types of lawyers, one of which is barristers. Barristers just fight cases in court. Basically they also advise on cases. All barristers are self-employed. They therefore expect to have total controlof the cases that they run, from the moment they're instructed, and to bear total responsibilityfor anything in a case that happens right or wrong. Whether rightly or wrongly, that's certainlythought to be one of the great characteristics of the English common law system. And if it is a quality and, this is not whatyou asked me but it is actually quite important I think, if it's a system of law that hasany particular advantage it gives the lawyer, not just me but any lawyer who works in thesystem as a matter of inevitability, it gives a measure of independence because the lawyerexpects to be judged according to his conduct, recognizing that any wrong move at any stagewill bring him down. Your reputation cannot survive any singlesignificant error of judgment, especially on ethical matters. So that's where I come from and I, being inpractice since 1971/72, doing criminal cases on both sides, prosecuting and defending,but also civil cases, commercial cases, sitting as a judge on a part-time basis, which inEngland we do for the last 20 years, I think, for the last five, six, seven years at theCentral Criminal Court in London where we try the most serious cases. So I've sat in all parts of the court. I've have chaired inquiries, medical inquiriesof a kind that more resemble this sort of hearing. And it's a great privilege of the Englishlegal system that you can do all these things at the same time, because every job is a feepaid job. So there's no conflict between you and theother people who work from the same office that you work in. You can work in a set of chambers and findyourself in a case against the person who sits in the same room even or the next. So that's the sort of experience I had. You are a QC (Queen's Counsel)? Yes, QC, which is a funny old thing. It's a distinction between junior and seniorcounsel. It's currently being discussed whether itshould continue at all as a distinction, because the rather odd thing is that appointment tothe rank of Queen's Counsel is made by the government and people say: "Well, surely lawyersare supposed to be so independent that one of the people they most frequently want toattack is the government". And indeed that's true because you have tochallenge the government's decisions. So the argument currently engaged in Englandis whether it's appropriate for seniority in the profession to be determined by thegovernment given the need for independence of lawyers. In any case, I became a QC in 1990. And eight years later you found yourself inThe Hague. How did it happen, what was the motivation? The previous prosecutor Louise Arbour waslooking for English QCs to come and work on this corridor of senior trial attorneys. And I learned of this, spoke to her and camehere, and was fortunate enough then to be appointed by her to prosecute a case calledKordić and Čerkez which was then I think the largest case before the Tribunal, althoughKordić was not a very senior figure, he was a mid-level politician, and Čerkez was amid-level military commander. But it was a very large case with a largeamount of material to deal with and with quite a large team. So I came over to do that and found that itquite suited me or I enjoyed it certainly. I found it rewarding. Having come here before I started the Kordićtrial, a man called Terry Bowers had to withdraw from a case called Jelisić, which was a veryinteresting, very confined case, with a confined and easily identifiable amount of evidence. So I took over the prosecution of that casefrom Terry Bowers after he'd opened the case, after the first couple of witnesses had beencalled, and saw that through to conclusion. Which was an interesting conclusion, as youknow, because the judges threw out the count of genocide against Jelisić, really on thegrounds that he was too low level a criminal, wasn't sufficiently high up in the managementchain to merit this crime said to be genocide. And they did this despite most extraordinary,overwhelming evidence from Jelisić's own mouth in the course of interviews about whathis state of mind was as he killed this very large number of Muslims in a camp at Brčko. But the judges threw out the genocide count,Jelisić having pleaded guilty in respect to the killings to other crimes. And not only they threw it out but they refusedthe prosecution any right to argue the point which I thought was absolutely astonishing. That matter was appealed and I think, as youwill recall, the prosecution's position was vindicated in all particulars. Namely, we certainly should have been givena right to be heard on something as fundamental as whether genocide should have been thrownout. And secondly, the court found that there wasindeed adequate evidence to go forward to a defense case. They didn't order a retrial, so the case endedwhere the judges had ended it, at half time. But on this particular case honours I thinkwere with the prosecution. Did you personally interview Jelisić? No. He was interviewed by investigators. I didn't speak to him directly. And he gave no evidence in court, althoughevidence was called on his behalf on various issues and some medical issues. Did you find in The Hague what you expected? How did you imagine this institution beforeyou came? I don't think I had any real preconceptions. It was a bit of a jump in the dark. Why not?! It seemed a good idea - try it and see. I came here for an interview first so I hadsome idea of what the office looked like. But I had never worked in an institutionalenvironment before and that takes some getting used to. I'd never worked with the resources that youhave to have available to you to present these cases. I'd never worked with this size of teams,because a typical case in England will only be a few lawyers at the very most. Sometimes there'll just be one lawyer, hisinstructing solicitor and the client. So I was simply not expecting, nor used tothe scale of enterprise here. Fairly early on I found that interesting and I enjoyed working with these much bigger resources and teams. It was also necessary to travel a certainamount. Much more in the more recent case, the limitedamount in the Kordić case. And that gives you an opportunity to bothsee the former Yugoslavia, that's an important thing to do, but also it gives you a chanceto meet face to face a lot of extremely interesting people in the process of interviewing themas witnesses or interviewing them for other reasons. And there's nothing like that to give youa better sense of what it's all about. I think it has to be underlined, as far asI'm concerned, that trying cases involving the former Yugoslaviaby lawyers none of whom come from the former Yugoslavia and almost none of whom speak thelanguage is obviously a limitation. I feel sometimes that it's in a way ratherinappropriate to have these trials being conducted by people who don't speak the language. I realize it's an inevitability. If you impose a trial system like this inrespect of a conflict like this and start it with internationals, it's going to happen. But there's something inappropriate aboutdealing with it without even speaking the language and I much wish it would have beenpossible to have the time to at least got into the language sufficiently to be ableto speak it before embarking on the work. But of course that is impossible, the workis far too pressing. So there's that limitation on all of us whoprosecute these cases and we have to have that in mind if we are to do the job properly. We also don't necessarily come with any earlierpre-existing knowledge of the cultural history. What was your knowledge? Very limited. And the knowledge about the crisis? Equally limited. It was the knowledge of a newspaper reader. I wasn't a person with any particular deepinterest in that crisis beyond that of the average informed reader of newspapers andwatcher of television. I had a slight connection with Yugoslaviafrom years and years ago, but nothing that really affected my level of knowledge. But the war in the former Yugoslavia was themain news in the 1990s. This was the first war where you had a livecoverage of war crimes on TV. The shelling of Sarajevo was almost live. Yeah, but it doesn't give you a deep knowledgeof what's happening because it only gives you the contemporaneous impression of journalists,roughly right or wrong, and forgettable. Because although these things have an enormousimpact at the time they're also easily forgettable because on our television screens we see crisisafter crisis after crisis and sometimes it's hard to distinguish one from the other oncethis process of filming wars became a routine. But going back to the point I was trying tomake - I think it's a limitation that we don't speak the language, it's a limitation thatwe don't come from the former Yugoslavia and therefore we don't have an immediate understandingof the history or sense of the history or of the culture. And we have to reflect that in various ways,first of all in the way we deal with individuals because it would be to add insult to injuryif we went in in a high-handed, arrogant way and didn't start off with the full recognitionof the limitations that are on us. And I've almost always attempted to do that. So there's that aspect to it. There is, I suppose, an advantage to beingan outsider in that we don't, I don't, and I imagine my colleagues are in the same position,we don't necessarily start off with presuppositions or prejudgments about the guilt or innocenceof any particular accused, or the manner of his or her guilt. And we shouldn't. We should be true to our calling and lookat the evidence as we gather it and see what the evidence shows. Not to start with an impression that you mighthave got as an inhabitant of Bosnia or Croatia or Serbia in the 1990s, an impression thatmight be true and might equally be false. So there are disadvantages and some advantagesin coming from outside. But I have to say it's a great privilege towork - privilege is a sort of odd word to use when you're dealing with things as tragicas this - but it's a great privilege to be working on something as clearly significantas this was and with access to such materials we have access to in order to do our work. You had some previous experience in the formerYugoslavia as a student. Can you tell us a little bit abut it. In the beginning of the 1960s our school participatedin... it wasn't an exchange program, it was a program where we went to stay with familiesin the former Yugoslavia. I think the object of the program was probablyto help the school children, boys and girls with whom we stayed, in their learning ofEnglish and there was no necessary a reciprocation. And I went for a month then and stayed witha Belgrade Serb family. I think first at a campsite in Crikvenicaand then in Belgrade. And I saw...-- When was it, 1960-what? I don't know but you can work it out, becauseI can remember that when I was in Belgrade we went and waved flags on the ceremonialroute as the open, would it've been a ZIL or zimka from Russia drove through, I can'tremember the make the car, with Tito and Khrushchev in it. So whatever year that was. So I actually saw those two in a car at somedistance and I seem to remember I had a flag to wave. And then later on after university I visitedit several times after that as a tourist. And then in the late 1960s I went as a tourguide for an English travel company to Cavtat, outside Dubrovnik, and looked after the Englishguests there and also worked for Atlas tours as a tour guide going to Cetinje via the Bayof Kotor. But alas only for English speaking touristsbecause I still didn't have, as I still don't have, the language. Pitty, really, because I like the little bitof the language I understand and speak. I just wish I'd found more time to do it properly. Did you enjoy being there, not only working? Yeah, I've always enjoyed being there. It's a very simple and slightly pat answerto give. It's easy to enjoy the Croatian coast becauseit's so beautiful so that if you're on a summer holiday there had to be something wrong withyou not to be able to enjoy it. I've always found, I always did find it easyto get on with Yugoslav people, I think. I don't think that's changed. I don't pretend to any special affinity butI always found them easy people to get on with. The next time you came back you went to crimescenes, as a prosecutor, investigator, interviewing witnesses. Where did you go? Obviously to Bosnia when you were preparingKordić? Yes. I went to Sarajevo and of course, like everybodyelse, I don't know anybody who is not charmed by Sarajevo. It wasn't a town I'd been to in my earliervisits. I hadn't been there. I may have been to Mostar, but I hadn't beenin Sarajevo in the 1960s and 70s. And everybody's charmed by it as a city. I was just one of those. I really enjoyed visits there. We used to go from there up to Zenica usually. And you also saw the consequence of the warthere, in 1998? Yes. The consequences of the war, seeing it onthe ground was enormously helpful and I'm sure it still is. The signs are still there. And it was sometimes the smaller things thatimpressed more than the bigger. Obviously you could be horrified at what youcould see of the damage in Mostar or Sarajevo itself, and you could be enormously movedby the little memorial at Stupni Do that I referredto earlier on. So you've got those things that impressedyou, but I think one of the things that I can remember at the time finding particularlydepressing was to be driving through large parts of territory where no man could walkbecause they still had to be demined. And I'd never been in that sort of area before. So that you see land that is as nature wouldhave left it, except that it wasn't as nature had left it, because it was now alien to humans. There's something eerie and really horribleabout that. I wasn't expecting that. I was quite surprised by that as a feature. Lots of things crowd in from my early impressions. Obviously going to Ahmići and seeing thescene of that terrible massacre. All sorts of things. We are talking about physical consequencesof the war. But what kind of people did you find therein 1998? With open psychological wounds? It would be a bit presumptuous of me to sayanything about the psychological state of people with whom I only ever meet in the somewhatformal setting of interviews. I think… It would be presumptuous for me to speak aboutthe psychological state of people who you meet only in the formal setting of talkingto them about war crimes. I have to say and it's a sadness to recordit, and I don't know that you should necessarily put this out as part of this profile, butthe impression some of us got in various locations was that the wars are still unfinished business. The impression one got was not that peoplewere welcoming the international presence as the bringer of the end of the problem butonly is an interruption of the problem. I'd rather you didn't put that out now, butthat was certainly the impression. That was the impression in 1998. You have kept going there every year. Do you see any change in the attitude? Because I would like to use this. The answer to that question is that in 1998I was speaking much more with victims and in my present job I've been speaking lesswith victims and more with senior, almost exclusively with senior people, and so I'mnot really able to judge whether there's been a change. It's very hard to say that that impressionthat I got or that others in my team's got is true because you're always speaking topeople through interpreters and you're speaking to people who come from a different cultureand how I interpret their reaction to me as somebody coming from the international communityto do a job might be completely to misunderstand it. But since you asked me what my impressionswere - those were included in my impressions. And of course, if true, one feels very sadabout it. But I wouldn't want to place too much emphasison that or allow any emphasis to be based on that because I could so easily be wrong. Tell me something about your theatrical experience. You were acting, as I've heard, in some… That was a long time ago, we will not go intothat. How much your language in the court and youracting in the court is influenced by the fact that you played Shakespeare? I don't think so... I know people often draw similarities betweenlawyers all around the world and actors. They say that the professions are in someways similar. Similar to the extent that they are performancejobs with sometimes large and sometimes small audiences. But I think the similarity ends there. Because an actor speaks words and createsthe impression of emotions written by others. The lawyer speaks his own words and in mycase seeks to avoid any expression of emotion because that will not help the judges, willonly get in the way of a clear understanding of our case. So I hope that there is none or very littleof the actor in what I do. Of course presenting a case in public involvesbeing able to speak in public and being able to engage your audience, but that's the samefor me as it is for every other lawyer in this building. You've got to be able to do that. If you can't do it then go and find anotherjob. But when a lawyer appears in court he shouldfind, and I find, that the minute he's on his feet, even if not at all times before,the minute he's on his feet he becomes oblivious to the audience, either the audience of fellowlawyers or the audience at the public gallery, because he has to be focused on the particulartask in hand, whether it's a legal argument or whether it's getting a witness to giveevidence or cross-examining a witness. So you're not concerned about the audience. You should only be concerned, for example,in explaining your argument to the judges in the best way possible or getting the evidenceout of the witness in the best way possible. You shouldn't be concerned about anythingelse. And I think that really works. First of all, in these courts you're neveraware of the public gallery, in any event, because they're behind bulletproof glass. You don't know if they're there unless youactually look. But in any court even if when you start off,when you're going to court, you think, "Gosh, a lot of people here today. Whoops!", as soon as you're on your feet youforget all about them because you're 100 percent concentrated on a much more specific task. You said that you're not paying attentionto the audience and I said it was clear to me because your language, the way you speakis practically impossible to translate so we lose at least one third of what you say. Yes, I'm sorry about that. A, because I speak too fast, and b, becausesometimes my language is too complicated I think. And I'm sorry about that. I do regularly make efforts to adapt and I'malways very contrite when the interpreters complain about me and I tell them that I'vealways been a bit fast. Speaking in courts in England I used to encouragethe shorthand writers to throw something at me if I was going to fast. I wouldn't mind because I was always awareit was my mistake. As to the complexity of language, of courseit's a virtue to write in very simple language, especially in legal settings, and to speakin simple language where it's appropriate. One of the problems for me is that the thinkingprocess about a case like this and all the propositions, the thinking process about anycase but particularly in cases like this, is a complex one. The response to any question will frequentlyhave many strands that you want to incorporate in what you want to present. And so... How do you see the evolution of this institution? Do you see any significant difference between1998, which was one of the years of the beginning of the Tribunal although it had existed fouryears before but it didn't have much work to do, and today's Tribunal? Yes, it's an enormous change. Enormous change in the atmosphere in thisoffice. And I think it's going to change a great dealmore. That's partly by dint of the scale of work,the amount of work that we're dealing with. The future of the institution is very muchmatter for others, it's not for me, I just got this one job of dealing with this case. But we're all aware of the imperative of thisTribunal closing its doors at a respectable time and with a respectable record. Because if it doesn't do that it won't haveserved the international community in the way that the international community wanted. And it will not provide a model for othersimilar exercises should they ever, however sadly, become appropriate or necessary. So what's called the exit strategy is notonly in everybody's minds as a matter of necessity, but I think it's desirable that it shouldbe. We should all recognize that you can't goon forever and that a line has to be drawn, lines have to be drawn, in various ways andin respect of various processes - the process here and presumably processes in Yugoslavia. But these are very much matters for others,not for me. Lawyers like me will, of course, find it unusualto be working in an environment where there is a political element. And there's a temptation to say, "It mustbe wrong, you should forget politics and just get on with the business of trying cases". That would be, I think, a mistake. The real world, and this institution is apart of the real world, is a world where political influences and decisions have to be takenaccountable. And I think it's an appropriate politicalreality that this Tribunal's life is limited and it's going to be brought to an end withrespectability, with judgments and with processes that merit respect, that therefore affectsall the thinking of all the people.
Selected documents
Interviews with Sir Geoffrey Nice
