Case no. IT-01-47-T


Judge Jean-Claude Antonetti
Judge Vonimbolana Rasoazanany
Judge Bert Swart

Mr Hans Holthuis

Decision of:
26 October 2004







The Office of the Prosecutor:

Mr Daryl Mundis
Ms Tecla Henry-Benjamin

Defence Counsel:

Ms Edina Re{idovi} and Mr Stéphane Bourgon for Enver Hadzihasanovic
Mr Fahrudin Ibri{imovi} and Mr Rodney Dixon for Amir Kubura


TRIAL CHAMBER II ("Chamber") of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 ("Tribunal"),

BEING SEISED of a submission of 1 October 2004 by Counsel for Enver Hadzihasanovic and Amir Kubura ("Defence") in which the Defence, pursuant to Rule 94 bis of the Rules of Procedure and Evidence ("Rules"), disclosed a report by Dr Zijad Sehic entitled "Expert Report of Dr Zijad Sehic on the Historical Background relevant to the Indictment against Enver Hadzihasanovic and Amir Kubura");

NOTING the Response to the Filing of Expert Witness Statement of Dr. Zijad Sehic pursuant to Rule 94 bis filed by the Office of the Prosecutor ("Prosecution") on 18 October 2004 ("Response") in which the Prosecution, pursuant to Rule 94 bis of the Rules, i) states that it does not accept the report of the expert witness Dr Zijad Sehic and wishes to cross-examine him, ii) requests that certain parts of Dr Zijad Sehic’s expert report not be tendered into the proceedings and iii) requests that the forthcoming testimony of Dr Zijad Sehic be limited to the parts of the expert report whose admissibility is not challenged by the Prosecution,1

NOTING that the report of Dr Zijad Sehic filed by the Defence comprises: i) one main text relating to the historical background in Bosnia and Herzegovina ("Report") and ii) a series of eight annexes ("Annexes"),

NOTING that the Defence indicated that it intended to hear Dr Zijad Sehic as a Defence witness shortly,2

NOTING that the Prosecution submits in the Response that certain parts of the Report should be denied admission on the ground that they lack relevance,3

NOTING that the Prosecution states also that certain other portions of the Report, identified in the annex to the Response, should not be admitted since they merely reiterate facts previously agreed by the Prosecution and the Defence in the Joint Prosecution-Defence Statement Agreement of Fact of 3 December 2003,4

NOTING that the Prosecution refers to the case-law of other Trial Chambers to support its requests,5

CONSIDERING that the Chamber noted in a previous decision that the present case "is different from other cases before the Tribunal in that it is dealing solely with command responsibility under Article 7(3) of the Statute [… and with] a great many different events which would incur the Accused’s criminal responsibility",6

CONSIDERING that the Chamber found in that decision that it was thus necessary to assess “the notions of relevance and probative value […] in a circumspect and flexible manner and that admission of a document should not be too hastily refused",7

CONSIDERING that there is no reason to depart from this principle in this instance regarding the report of an expert historian and that the entire Report should therefore be tendered into the proceedings pursuant to Rule 94 bis of the Rules,

CONSIDERING moreover that the Chamber will wait for Dr Zijad Sehic to appear before ruling on the admissibility of the Annexes,

CONSIDERING that in view of the nature of the charges against the Accused and of the period relevant to the Third Amended Indictment, the Defence should have an hour and a half for the examination-in-chief of Dr Zijad Sehic,

CONSIDERING that for the same reasons it would be advisable if, insofar as possible, the Defence conducted the examination-in-chief of Dr Zijad Sehic in such a way that the topics raised relate to the period 1990-1995,

CONSIDERING that the Prosecution shall also have an hour and a half in which to conduct its cross-examination,

CONSIDERING that the Chamber also wishes to put questions to the expert witness,


PURSUANT to Rules 89(C), 90(F) and 94 bis of the Rules,

TAKES NOTE of the Prosecution’s wish to cross-examine Dr Zijad Sehic and AGREES to his appearance,

DECIDES to admit the Report, which will receive an exhibit number at the hearing,

RESERVES its decision on the admission of the Annexes until the appearance of Dr Zijad Sehic,

SETS the length of the Defence examination-in-chief of Dr Zijad Sehic at an hour and a half and that of the Prosecution cross-examination at an hour and a half,

REQUESTS the Defence, insofar as possible, to conduct the examination-in-chief of Dr Zijad Sehic in such a way that the topics raised relate to the period 1990-1995,


Done in French and English, the French version being authoritative.

Presiding Judge of the Chamber
Jean-Claude Antonetti

Done this twenty-sixth day of October 2004
At The Hague
The Netherlands

[Seal of the Tribunal]

1. Response, paras. 6-9.
2. Disclosure of the Expert Report of Dr Zijad Sehic on the Historical Background relevant to the Indictment against Enver Hadzihasanovic and Amir Kubura, 1 October 2004, paras. 1-2.
3. Response, paras. 6-7.
4. Response, para. 8. See also the annex to the Response.
5. Response, paras. 4-5.
6. Decision on Admissibility of Certain Challenged Documents and Documents for Identification, 27 July 2004, ("Decision on Admissibility of Documents"), para. 34.
7. Decision on Admissibility of Documents, para. 35.