Tribunal Criminal Tribunal for the Former Yugoslavia

Page 6064

1 Friday, 19 January 2007

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 9.04 a.m.

5 JUDGE AGIUS: So, good morning to you, Madam Registrar, could you

6 please call the case, please.

7 THE REGISTRAR: Good morning, Your Honours. This is the case

8 IT-05-88-T, the Prosecutor versus Vujadin Popovic et al.

9 JUDGE AGIUS: I thank you, ma'am.

10 For the record, Accused Nikolic is still not with us today. For

11 the record also he has filed a declaration whereby, as confirmed by

12 Ms. Nikolic earlier on, he waives his right to be present and accepts the

13 proceedings to continue, provided his counsel is here, and she is.

14 From the Defence teams I think it is Mr. Bourgon and Mr. Ostojic

15 who are still not with us.

16 Prosecution is Mr. Thayer and Mr. McCloskey and Mr. Vanderpuye.

17 Thank you.

18 Yes, we are sitting today in -- pursuant to Rule 15 bis.

19 Judge Stole is not present. He will be present with us hopefully Monday

20 if he's feeling better.

21 We agreed yesterday that we would maintain sort of three items on

22 the agenda for today. One of which we are expecting to hear the end

23 results of the either examination of the video or discussions that you may

24 have had. I'm referring to the two-hour or half an hour video.

25 Yes, Mr. Josse.

Page 6065

1 MR. JOSSE: Well, first of all, we were relieved to discover that

2 the unedited version of the video was in fact only about 20 minutes long.

3 The Chamber will be even more relieved to know that we are not asking that

4 that version be played. We are content that the edited version is played

5 to the Chamber. As I respectfully suggested yesterday, we would invite

6 the Chamber to view that video and then we would have some short

7 submissions as to its admissibility in due course. Could I just say this:

8 I mentioned this to my learned friend Mr. McCloskey. We would invite the

9 Chamber to say in fact the Prosecution should go first at that point and

10 explain why they say it is admissable, pursuant to Rule 89, and then we

11 could make our objections thereafter. That, we would suggest, is the more

12 logical way of approaching this particular problem.

13 JUDGE AGIUS: All right. My suggestion to you, if my colleagues

14 agree, is to start then first with Stefanie Frease's testimony. Do you

15 have problems? Mr. Thayer.

16 MR. THAYER: No, I think we're ready to proceed. We just need to

17 ensure the presence of the witness who is on her way down. That's all.

18 JUDGE AGIUS: Okay. Then in the meantime I think we can proceed

19 with watching this video and I don't know who wishes to respond to

20 Mr. Josse's remarks or submissions on admissibility.

21 MR. McCLOSKEY: Good morning, Mr. President.

22 JUDGE AGIUS: Good morning.

23 MR. McCLOSKEY: Everyone. Yes, Mr. Josse did speak to me about

24 this, this morning, and we are fine on that. I would like to give you

25 a -- I think it would be helpful to give you a brief background of the

Page 6066

1 video so that it will help you in understanding its relevance, though I

2 don't think you need hear much for me, frankly. It speaks for itself.

3 And I have been invited to speak by Defence counsel in any event, so if I

4 could just say a few words about that.

5 We had had the order differently, but I think we can adjust to

6 this order without a problem.

7 JUDGE AGIUS: All right. Listen, if -- I suggest starting first

8 with Ms. Frease's testimony because in reality I don't know how long she

9 will be testifying, and I mean I would rather have her finish her

10 testimony first without having it interrupted or given in two separate

11 sittings. But if this disturbs your programme, I mean we can easily

12 accommodate you. I mean it's no problem.

13 MR. McCLOSKEY: I think we're -- I think we're adjusting fine to

14 that. I always look to Ms. Stewart to see how we are with -- one issue --

15 one of the things that we wanted to show you with Ms. Frease were just the

16 UHER machine and -- and the tapes, have her talk about a bit. Then we

17 need to take a break to move the them into the booth where they plug them

18 in so you can get the best sound quality and actually play the original

19 tape. So we just need a five or 10-minute break because if you will

20 recall, lining up old reel-to-reel tapes is not as easy as digital.

21 JUDGE AGIUS: That convinces me that the suggestion to start with

22 Stefanie Frease I think is the best one, so that we go through the whole

23 process and conclude it first. But, if in the meantime we can see this

24 video, until she -- until she comes down.

25 MR. McCLOSKEY: Okay. I think --

Page 6067

1 JUDGE AGIUS: Yes, Mr. Josse.

2 MR. JOSSE: I have no problem with the Court viewing the video and

3 hearing the submissions sometime later today, or if need be, sometime

4 future. I have no difficulty with that at all.

5 JUDGE AGIUS: I think it's a better approach, Mr. Josse. I think

6 we will have time to hear submissions today as well. I understand this is

7 a five-minute video now.

8 MR. McCLOSKEY: Yes, Mr. President. One thing I don't have for

9 you with the video as what we had with the last one is a few stills

10 identifying people. But that will come. But if I can just give you a

11 brief preview of it, I think it will be helpful. This is a video that was

12 provided to the OTP in an interview with General Zivanovic many years ago.

13 And, as you can see from the video, it is a celebration of his departure

14 as the commander of the Drina Corps, and General Krstic is coming on. And

15 you will see a reference in some of the speeches that it is now

16 General Krstic who is the commander and General Zivanovic has gone.

17 Now, this is a very important issue, so that you understand who

18 was in command at the time of the key events. And you will see other

19 evidence that I won't go into now, about precisely when General Krstic

20 took over command. And so on that important issue, as it -- as you -- as

21 you already have seen, we have an intercept between -- we believe between

22 General Krstic and Accused Borovcanin on the 13th, and it's -- it's at a

23 time when General Krstic, in our belief, is commander. So this is an

24 issue that this has relevance to.

25 I think more importantly it gives you a real inside view into --

Page 6068

1 into part of the Main Staff, because what you'll see is General Maric

2 arrives on that big field, you will recall, from this restaurant we went

3 to see, the yellow restaurant. He arrives in a helicopter. He is greeted

4 by -- I believe it's General Milovanovic his Chief of Staff, who you have

5 not seen before and may not recognise. We'll point him out so that you

6 understand who he is. And you'll see how they sit next to each other.

7 General -- General Milovanovic at the table with General Gvero next to him

8 and then General Maric is arriving. You have Mladic, Milovanovic, Gvero,

9 and these are important issues, where people sit at these sorts of

10 parties, and I think it's an important thing for you to see how these top

11 generals relate to each other, how they sit. There's very few of them.

12 And -- and it's a July -- I believe 21st, I always get it mixed up with

13 the 20th or 21st, but these are just, you know, right in the middle of

14 these events, just after the mass executions have taken place. So these

15 are some of the reasons why we believe it's relevant. And it is -- we

16 have a transcript for it, which is PO2044. And the video clip itself is

17 PO2046. And the video is subtitled, so I -- and it's not the best -- it's

18 that subtitling that's a little below the screen, but I would ....

19 JUDGE AGIUS: What's the number of the transcript?

20 MR. McCLOSKEY: The -- 2044 is the transcript, and the clip is

21 2046, which does have the -- the subtitling, and this is an edited

22 version, as Mr. Josse has told you. We just tried to pick out the parts

23 that had had most relevance to the case. And I don't -- if -- we don't

24 really neat the booth to get involved in this, I think it would be just

25 better if we hear the B/C/S and try to follow the transcript. We had --

Page 6069

1 we've got hard copy transcripts coming down, but they haven't got here

2 yet, which obviously is the ideal way, but if you look at the transcripts

3 you sort of lose the video, so ...

4 I guess we have e-court and the video, so if someone can keep the

5 transcript going in e-court. So I guess we're ready to go, and if --

6 JUDGE AGIUS: Yes, go ahead.

7 MR. McCLOSKEY: And I may pause it a time or two just to identify

8 someone, if I can.

9 [Videotape played]

10 JUDGE AGIUS: There is no sound.

11 MR. McCLOSKEY: We'll try again, but you probably recognised

12 General Krstic, General Zivanovic and hopefully the sound will come back

13 to us.

14 [Videotape played]

15 JUDGE AGIUS: Still no sound.

16 MR. McCLOSKEY: We played this with sound last night, the same

17 machine, so ...

18 JUDGE AGIUS: This has happened before.

19 Is Ms. Frease around? Yeah. Then shall we start with Ms. Frease

20 or shall we give this another try? They are on their way.

21 [Videotape played]

22 MR. McCLOSKEY: That is Milovanovic in the -- looking at his watch

23 right now.

24 [Videotape played]

25 MR. McCLOSKEY: And that is Generals Milovanovic and Gvero sitting

Page 6070

1 at the table

2 [Videotape played]

3 JUDGE AGIUS: So do you wish to make submissions? Mr. Josse? By

4 the way, is it Yosse or Josse?

5 MR. JOSSE: Josse. The Prosecution submit that this is relevant

6 to the command issue between Generals Zivanovic and General Krstic.

7 Your Honour, I'm bound to say there is not very much I, on behalf of

8 General Gvero, can say about that. That is an issue which doesn't concern

9 the Defence of General Gvero in the slightest. And if it be an issue in

10 the case, then the Court must take what course it feels appropriate in

11 relation to this video. And I wasn't aware that my learned friends were

12 deploying that as an argument for the admissibility for this particular

13 piece of footage.

14 However, perhaps more important in relation to our case is his

15 second assertion. And really what he says is that it's important for the

16 Chamber to know, "Where people sit at these sort of parties." And in our

17 submission, really, it takes the matter no further at all. It's

18 irrelevant. Where do people sit, they sit across the table, as this

19 Chamber saw, looking at that very video. It's of no probative value

20 whatsoever in that regard, and we would suggest to the Court that so far

21 as General Gvero is concerned, this -- my learned friends are trying to

22 put this piece of evidence in as a piece of pure prejudice. In effect

23 guilt by association. It's classic in that regard.

24 We'd also make one other remark in passing and that's this: The

25 events we saw on the video occurred in the municipality of Sokolac. They

Page 6071

1 are not covered by the indictment. They are not near, certainly

2 relatively speaking, the events of Srebrenica, and in our submission

3 that's another reason to illustrate why the events on the video are

4 irrelevant.

5 But, Your Honour, I repeat, if the video is admitted purely in

6 order to go to the issue of command between Generals Krstic and Zivanovic,

7 then, notwithstanding I haven't had a chance to discuss it directly with

8 General Gvero, that's something clearly we couldn't possibly object to.

9 It's the second ground that we say is wholly prejudicial, irrelevant, and

10 doesn't fall within Rule 89. The issue is really as simply that, is

11 there any probative value in it at all, is it relevant, and is it

12 prejudicial.

13 JUDGE AGIUS: I thank you, Mr. Josse.

14 Mr. McCloskey.

15 MR. McCLOSKEY: It is prejudicial, it's meant to be prejudicial,

16 that's why we -- it is relevant evidence to prejudice this in that it

17 shows that he is part of the Main Staff, that he is with General Mladic at

18 a key time. He is the one person we see on the video that is telling the

19 group where General Mladic is and makes an inference on what he is doing

20 at a time when we have some over 7.000 Muslims in their graves a few days

21 old. That -- I don't think anyone will suggest here that it was not

22 General Mladic that was one -- the main force behind this.

23 Yes, it is meant to be prejudicial. That is why it is so

24 relevant. And that General Gvero was the one that's giving the toast and

25 saying what he is saying. Yes, it is prejudicial. That's why we are

Page 6072

1 offering it.

2 I would also point out what General Mladic had to say, he does

3 make reference to Srebrenica and what had been done in Srebrenica at a

4 time when he knows exactly what he has done, and they're all sitting there

5 smiling, knowing what they have done and what they will continue to do in

6 the woods as the days go on. And there is one word that Mladic mentions

7 about Serbs disappearing. You'll here other evidence that this is the

8 propaganda, the call to arms from the beginning of this war that the Serbs

9 repeat over and over again, that the Muslims are coming to commit genocide

10 on the Serbs. It's the -- and they -- we must prevent that so the Serbs

11 do not disappear. Well, this is the same word or close to it, that he

12 used just a few days earlier to Mr. Mandic, "Mr. Mandic it's up to you

13 whether your people survivor disappear."

14 So this video is relevant in a number of ways. Does it answer the

15 questions that you have to resolve? No, it doesn't. But does it help?

16 Yes, it does. Thank you.

17 JUDGE AGIUS: Yes, Mr. Josse.

18 MR. JOSSE: Your Honour, two or three comments. First of all, of

19 course for what it's worth in this regard, it's worth a great deal

20 generally, my client is not charged in relation to the mass murder.

21 Secondly, there is no dispute whatsoever that General Gvero was a member

22 of the Main Staff. There is an enormous amount of evidence to prove that,

23 and this Chamber will see no attempt by the Defence of General Gvero to

24 show otherwise. What we ask rhetorically is how does the video advance

25 the case against General Gvero in a material way, and that we would

Page 6073

1 respectfully say is a test you should apply in deciding whether it is

2 admissable against him in these proceedings.

3 JUDGE AGIUS: I thank you, Mr. Josse.

4 [Trial Chamber confers]

5 JUDGE AGIUS: Our position is that we would rather -- if we are to

6 admit the video, we would rather admit the entire video rather than part

7 of it, which has been edited by one of the parties. So that is the first

8 point that we'd like to make. So if that will be the case, would you

9 have anything to add to your submissions that you have already made?

10 Mr. Josse.

11 MR. JOSSE: Could I just ask about the logistics of that? Does

12 the Chamber want the whole video played in open court?

13 JUDGE AGIUS: We want to have the whole video available. So that

14 at the end of the day we admit the video we will admit the whole video and

15 not parts which have been edited by the Prosecution from it.

16 MR. JOSSE: Yes, I mean, could I just emphasise, as I hope I made

17 clear first this morning, that the Defence have no difficulty with the

18 edited video being admitted. My slight concern is this, Your Honour: If

19 the Court is going to decide whether to admit the whole video, then surely

20 the Court is going to need to view the whole video before making that

21 decision as to admissibility.

22 JUDGE AGIUS: You got it right.

23 MR. JOSSE: Could I have a moment, please?


25 [Defence counsel confer]

Page 6074

1 MR. JOSSE: Yes.

2 [Trial Chamber confers]

3 JUDGE AGIUS: What we suggest is the following, so that we don't

4 take much time, which we need for other things this morning: That you

5 make this video available for the Trial Chamber, and then we will come

6 back to you on it.

7 MR. JOSSE: I think, with respect, that's wise for this reason:

8 The reason I needed to turn to Mr. Krgovic, besides the fact he is my lead

9 counsel, is the fact that he really viewed it because it was only in his

10 language, the whole video. The whole video didn't have the subtitles upon

11 it, so therefore I have to bow to his judgement in that regard. If the

12 Chamber is going to view it, then clearly arrangements are going to need

13 to be made for the whole of it to be translated and transcribed.

14 JUDGE AGIUS: We have the transcript of it.

15 MR. JOSSE: That's the transcript of the whole video.

16 JUDGE AGIUS: Of the whole video. And this is the main reason

17 why, basically -- not one of the reasons, not necessarily the main reason,

18 one of the reasons why we need the whole video. First of all, the way

19 Mr. McCloskey approached it, although he was inviting us, and not giving

20 us instructions, was to sort of don't bother much with the transcript,

21 because if you look at the transcript you will miss what the visual side

22 of it, and that is -- that is true. But if we have the transcript

23 available, and the whole video available, and all the time that we need to

24 view the video carefully, then we can place ourselves in a better position

25 to make an assessment of your submissions and of Mr. McCloskey's

Page 6075

1 submission and come back with a decision.

2 MR. JOSSE: To make our position plain, Your Honour, Mr. Krgovic

3 advises me that we have no problem with that, whatsoever.

4 JUDGE AGIUS: Okay. I thank you. So it's up to you to make

5 now -- make this video available at the earliest.

6 MR. McCLOSKEY: Yes, Mr. President, I think that's an excellent

7 idea. I want to make sure we have the whole transcript. I'm not sure

8 we've given you the entire transcript, but we will endeavour to do that.

9 As you can see, it's hard to transcribe these sorts of things, but -- but

10 we'll get that to you. Because I think you're right, it's good to view

11 the video, but then it's good to study the transcript and the words, what

12 is being said.

13 JUDGE AGIUS: Okay. So that disposes of the first item on the

14 agenda, and I thank you, Mr. McCloskey and Mr. Josse, for your very

15 constructive approach in discussing this matter.

16 Can we bring in Ms. Frease? All right. Judge Kwon is

17 suggesting -- one moment, Mr. McCloskey. Judge Kwon is suggesting that we

18 dispose of the other issue on the agenda, the one relating to Rupert

19 Smith, the two motions, the Gvero and Miletic motions. And then we have a

20 break, you have the time to prepare the equipment for Ms. Frease, and then

21 we can continue and finish with Ms. Frease. All right?

22 Have you decided, will Mr. Josse go first? One moment. Give me a

23 few seconds, Mr. Josse, to get my documents right. Go ahead.

24 MR. JOSSE: Your Honour, when it became clear that the Chamber had

25 a little time today we considered that this might be a constructive item

Page 6076

1 to make a few submissions about. We of course were not aware as to

2 whether the Chamber had started examining this matter at all or in any

3 detail, but felt that some clarification was worthwhile because to some

4 extent the Chamber may feel that the filings in this matter have become, I

5 would suggest slightly confused and slightly bogged down in what we submit

6 is actually a rather straightforward matter. I could, if the Chamber

7 required, go through listing the various filings there have been in

8 relation to this matter. I don't know whether that would assist.

9 JUDGE AGIUS: I have this them all here. That's why I told you

10 give me two seconds, so that I organised them at least in chronological

11 order.

12 MR. JOSSE: Well, I won't do that. Safe to say there've been two

13 from General Gvero's Defence, two from General Miletic's Defence and I

14 think two from the Prosecution. There should be six filings in relation

15 to the matter.

16 JUDGE AGIUS: Exactly.

17 MR. JOSSE: The Chamber will observe what we stated in the last

18 paragraph of our filing of the 15th of December, that we had felt

19 compelled to file the matter confidentially. All subsequent filings I

20 note were filed confidentially, and we have explained the reason in the

21 filing, which I won't repeat in open session. But I think the matter can

22 safely be discussed in open session now, notwithstanding the fact that all

23 these filings were confidential.

24 JUDGE AGIUS: Yes, we are of the same opinion, Mr. Josse.

25 MR. JOSSE: I'm grateful. Your Honour, the questions we would

Page 6077

1 invite the Chamber to consider as follows: Firstly, has the Prosecution

2 complied with Rule 94 bis (a) in relation to the purported expert evidence

3 of General Smith? If they have not, then we would invite the Chamber,

4 one, so to rule. Then to in effect give directions as to when and how the

5 Chamber should so comply. We would suggest that for the Prosecution to

6 realistically comply with that rule, they need, as they have for other

7 experts, to serve a notice under Rule 94 bis (a) to provide a translation

8 and stopping there, that is no longer an issue, a translation I'm glad to

9 say was provided yesterday. And thirdly, we would submit that what the

10 Prosecution really need to do is to explain in their notice why they say

11 this gentleman is an expert witness and why he is suitable as an expert

12 witness.

13 We submit strongly that realistically the burden is on them to

14 show that he should be an expert and is an expert, and thereafter that

15 triggers a response from the Defence under Rule 94 bis (b) as to why the

16 Defence say he is not suitable to be an expert. By way of particular and

17 stark example in this case, we would say that an obvious failure of the

18 Prosecution is the fact that they haven't provided a curriculum vitae for

19 the general. Now, of course, we know a fair amount about his background,

20 it would be churlish of me to suggest otherwise. However, the

21 Prosecution, we submit, need to demonstrate more clearly and carefully why

22 in particular they say he is capable of being an expert in relation to the

23 Main Staff of the VRS.

24 Having said all of that, were the Chamber to decide that the

25 Prosecution have complied with Rule 92 bis (a), then we would still ask

Page 6078

1 for some further directions to allow the Defence to respond fully under 94

2 bis (b). And Your Honour, we are grateful to the Prosecution, because we

3 contend that they concede as much, if I could be given a moment. In their

4 filing of the 2nd of January, 2007, and I'm sure I can read this bit out

5 in open session. At paragraph 6 they say, and it's right to say that in

6 that filing they oppose strongly the submissions I have hitherto made,

7 they say, "Nevertheless to the extent any of the accused may seek

8 additional time in order to more fully respond pursuant to Rule 94 bis

9 (b), the Prosecution would have no objection to such a request."

10 So I repeat, if the Court is against the primarily submission that

11 we make, then nonetheless we would still ask some direction as to how the

12 matter should proceed. We would then realise the burden, in effect, was

13 on us under 94 bis (B) as to why we say the general should not be an

14 expert. In short what no one is asking at this stage, as I understand it,

15 is for the Court to determine whether General Smith is an expert. I have

16 no doubt that day will come, and for better or for worse, this Chamber

17 will be burdened with that particular problem, but not at the moment. In

18 effect, we're asking for the Court simply to give some directions and some

19 guidance before we proceed further. And I repeat what I said when I

20 began, we had some concerns that these various filings didn't make that

21 altogether clear and were starting to wrap the two issues up together, and

22 at this stage we haven't got that far.

23 Finally, one thing for the Chamber's information, which is of

24 importance certainly to us. We learnt yesterday that General Smith is

25 going to be a factual witness in the case of Dragomir Milosevic, a trial

Page 6079

1 which I'm sure this Chamber is aware has just started. So we suspect he

2 will give evidence as a fact-based witness in that case first and then

3 give evidence in this Chamber thereafter. He has, of course, given

4 evidence here before, as I am sure the Chamber is aware.

5 Unless I can assist further, those are my submissions.

6 JUDGE AGIUS: I suppose we should hear your submissions,

7 Madam Fauveau, and then give the floor to Mr. Thayer.

8 MS. FAUVEAU: [Interpretation] I'm very sorry, I will be very

9 brief.

10 JUDGE AGIUS: I was following.

11 MS. FAUVEAU: [Interpretation] I will be very brief. I will be

12 very brief. I join all the submissions of my colleague.

13 JUDGE AGIUS: Thank you, Madam Fauveau.

14 Mr. Thayer.

15 MR. THAYER: Good morning, Mr. President, Your Honours, counsel.

16 I think the issue really fundamentally boils down this morning to

17 at what point was proper notice under 94 bis given for the purpose of

18 tolling any response by Defence counsel. And I think we -- that's where

19 we need to focus, because that's the most important thing, to get the ball

20 moving ahead, as opposed to spending time trying to extricate ourselves

21 from what's happened. Certainly we could have simplified matters had we,

22 back in November, when we disclosed this expert report, slapped a 94 bis

23 label on the disclosure transmittal correspondence when we did so. That

24 would have, I think, solved our issue. That didn't happen, unfortunately,

25 so here we are.

Page 6080

1 I think we need to put in context though, in terms of answering

2 some of these questions about whether 94 bis has, in fact, been complied

3 with. In you look at our filing of 2 January, this has been a very

4 straightforward endeavour with respect to General Smith. Our position has

5 been clear and simple from the beginning as early as March of 2006, when

6 Mr. McCloskey made it clear on the record that we are offering

7 General Smith as both a fact witness with respect to Zepa, as well as an

8 expert witness with respect to certain command issues, but more

9 fundamentally with respect to the importance of a Main Staff. That

10 position has been repeated on the record on no fewer than two occasions or

11 at least one other occasion, supplemented obviously by our 65 ter witness

12 summary of General Smith, which again repeated our intent to offer his

13 testimony as both a Zepa fact witness, and the expert witness that

14 Mr. McCloskey had described previously.

15 Therefore, when the disclosure was made in November of 2006, as

16 soon as you click on the document and it pops up and it says, "Expert

17 statement of sir General Rupert Smith," our position, respectfully,

18 Your Honours, that Rule 94 bis has been complied with at that point. It

19 is unambiguous, the purpose for which it is being offered. It is

20 consistent with what we have been advising Defence counsel for months.

21 And the question ends there, as far as we're concerned. Now, again,

22 certainly we concede that had we slapped 94 bis, maybe some extra bells

23 would have gone off and we wouldn't be in the position we're in. We

24 believe that doing that, given what we had alerted counsel to already, was

25 sufficient compliance, and there's certainly nothing explicit in 94 bis,

Page 6081

1 much less anything implicit in 94 bis, which requires the Prosecution to

2 do so. Certainly it would be a preferred practice to have sent perhaps a

3 separate notification or submission with respect to that, but we did what

4 we did, we thought that that would be sufficient, given -- given all the

5 circumstances and we still respectfully submit that that was a reasonable

6 course of action and that -- that it is a very simple and straightforward

7 issue that's before the Court with respect to whether 94 bis has been

8 complied with.

9 We did not concede, as my learned friend has represented, that we

10 did not comply with 94 bis in our 2 January 2007 filing. What we did

11 acknowledge was that there is confusion that has been created and that,

12 should Defence counsel require more time, should the Court decide to toll

13 the issue at any time of its choosing, including this moment, we have no

14 objection to that. We are not -- as the Court is aware, we are not

15 procedural absolutists on this side. So along with the fact that General

16 Smith's testimony will not occur most likely until sometime in the fall of

17 2007, possibly later, but that's sort of what we have in mind, given how

18 we're breaking up the tour of this trial, I would just leave it in the

19 Court's hands at that.

20 JUDGE KWON: Fall of 2007. Did the Prosecution not say that it

21 would expect it -- their case to be concluded before summer of this year?

22 MR. THAYER: That's absolutely correct, Judge Kwon. Given the

23 reality that we're facing, I don't -- I don't see us getting to where we

24 need to be, given the volume of testimony that we have ahead of us, as

25 hard as everybody's working. You know, we'll -- we'll regroup, regather,

Page 6082

1 and see whether we can meet that, but just -- I see Mr. McCloskey getting

2 to his feet.

3 JUDGE AGIUS: I don't think we need to discuss that. You will

4 hear news about that very soon.

5 Yes, Mr. Josse, would you like to reply to that?

6 MR. JOSSE: Just this, Your Honour: First of all, I was not

7 suggesting the Prosecution conceded that they hadn't complied. My point

8 was a different one. Secondly, I would simply emphasise what we said in

9 paragraph 2 of our filing of the 15th of December. My learned friend does

10 concede that perhaps the Prosecution could have done things differently.

11 We place great reliance on that note of the 31st of October, its

12 juxtaposition to the events that we are presently discussing, and the fact

13 that General Smith was not mentioned on that notice. That is essential

14 part of our submission.

15 JUDGE KWON: Can I ask a question to Mr. Josse to clarify? Apart

16 from the opposition or the issue of the procedural issue, whether

17 Prosecution has complied with the procedural requirement and apart from

18 the issue whether Sir Rupert has an expertise on military matters, do you

19 also suggest that either a witness should be either a fact witness or an

20 expert witness?

21 MR. JOSSE: We will almost certainly make that very submission.

22 Or, at the very least we will submit that in this case it will be

23 inappropriate for an important factual witness like Sir Rupert to then

24 be an expert in another field of the case, because it really, we will

25 submit --

Page 6083

1 JUDGE KWON: Can I have the reason for that? Apart from the lack

2 of expertise.

3 MR. JOSSE: Well simply because the Prosecution could choose any

4 number of individuals who have no axe to grind, who have genuine

5 objectivity who weren't as intimately involved in these events as their

6 expert. I suspect in due course what we will submit to the Court is that

7 if one looks at some of the things that General Smith is saying, he, like

8 so many of the players in these tragic events tried to explain away, dare

9 I use the expression, his limited role. As someone who was a player in

10 the events, he really, we submit, is not a suitable, dispassionate, and

11 proper expert. That's the submission we would like to develop in due

12 course, Your Honour.

13 JUDGE KWON: Thank you.

14 JUDGE AGIUS: Yes, Madam Fauveau.

15 MS. FAUVEAU: [Interpretation] I just -- to the question of Judge

16 Kwon. I think this was already said in my reply. We are not against the

17 possibility that one person be a factual witness and an expert witness in

18 certain situations. Here this is a situation where one person will be

19 factual witness on certain aspects and at the same time expert on the role

20 of the accused in these events, while the same person -- the person who

21 should be an expert is -- had also a role in the events. Because of this

22 duality, it won't be possible to separate the facts from the testimony as

23 an expert.

24 JUDGE AGIUS: I thank you. Of course we reserve judgement on

25 this. We have started working on it, by the way.

Page 6084

1 So as suggested by Judge Kwon, I think we should have a break now.

2 I think we'll give you 30 minutes by which time you should organise

3 yourselves and have everything -- everything ready and then we will start

4 and finish with Ms. Frease, okay? Thank you.

5 --- Recess taken at 9.58 a.m.

6 [The witness entered court]

7 --- On resuming at 10.31 a.m.

8 JUDGE AGIUS: Good morning, Ms. Frease.

9 THE WITNESS: Good morning.

10 JUDGE AGIUS: I suppose you're familiar with the procedure, so we

11 will move straight to your solemn declaration.

12 Madam Usher.

13 THE WITNESS: I solemnly declare that I will speak the truth, the

14 whole truth and nothing but the truth.


16 JUDGE AGIUS: Mr. Vanderpuye.

17 MR. VANDERPUYE: Thank you, Mr. President. Good morning, Your

18 Honours, counsel.

19 Examination by Mr. Vanderpuye:

20 Q. Good morning, Ms. Frease. I would like to put to you a few

21 questions, and I would -- just wanted to ask you to keep your voice up and

22 allow a short pause between the question and answer so that the

23 interpreters have time to catch up with what you are saying.

24 Initially I would like to begin with some of your background.

25 Could you tell us about your educational background first?

Page 6085

1 A. Yes. I have a masters degree from Columbia University in

2 international affairs, and an undergraduate degree, a bachelors degree

3 from the University of Washington on the same subject.

4 Q. And do you speak more than one language? Do you have language

5 skills?

6 A. Yes.

7 Q. Can you tell us what languages you speak?

8 A. I speak the B/C/S language, as it's referred to here, Italian, and

9 I'm studying French.

10 Q. Now, you have testified previously before this Tribunal; is that

11 right?

12 A. Yes.

13 Q. And was that in the matter of Prosecutor against Radoslav Krstic

14 in 2001?

15 A. Yes.

16 Q. Prior to that had you been in the employ of the Office of the

17 Prosecutor?

18 A. Yes, I had.

19 Q. And can you tell us what period that was?

20 A. It was from April 1995 to July of 2000.

21 Q. Since July of 2000, have you held other employment?

22 A. Yes, I have.

23 Q. And can you tell us what nature of that employment was and where

24 you worked?

25 A. Mm-hmm. From August of 1990 to June of 1995, I worked for the

Page 6086

1 Coalition for International Justice in Washington, DC, a non-profit

2 organisation, and I was director of programmes there.

3 Q. And following your engagement there, did you hold any other

4 employment?

5 A. Yes.

6 Q. Could you tell us about that and what your duties and

7 responsibilities were there?

8 A. I worked at the International Criminal Court from June of 2005 to

9 June of 2006 where I was responsible for setting up the field operations

10 and investigations in Chad with respect to the Sudan Darfur case that the

11 ICC is responsible for.

12 Q. Following your engagement with the ICC, have you held any other

13 employment up until now?

14 A. Yes. After leaving -- well, after leaving the ICC I started

15 studying French for a couple of months, and then had a short consultancy

16 back here with the OTP in October and November, and returned in January

17 again for a short-term contract.

18 Q. Now, if I may, can I just refer you back to the time when you

19 worked for the Office of the Prosecutor before 2001.

20 A. Yes.

21 Q. Can you tell us, after you came to work for the Office of the

22 Prosecutor initially, were you thereafter assigned to work on the

23 Srebrenica investigation?

24 A. Yes.

25 Q. And can you tell us in what capacity you did that work?

Page 6087

1 A. Yes. I started working for the court in April of 1995 and in July

2 of 1995 I was sent out to the field to Tuzla in mid-July 1995 to conduct

3 preliminary investigations with -- well, we were a team of four people.

4 Q. Now, you've indicated previously you have an understanding of the

5 B/C/S language, you speak, read, and write it; is that correct?

6 A. Yes.

7 Q. And how would you rate your proficiency in that language?

8 A. I would say I have a very solid working knowledge.

9 Q. Now, while you were a member of this team conducting

10 investigations into the events of Srebrenica, did the Office of the

11 Prosecutor acquire certain material relating to intercepted radio

12 communications?

13 A. Yes, it did.

14 Q. And did you become involved -- well, could you just tell us about

15 how that material was acquired in terms of the stages it was acquired in,

16 the type of material that was acquired?

17 A. Mm-hmm. The Office of the Prosecutor first began to acquire that

18 material in March of 1998 and I was involved with it really from the

19 beginning and throughout the time that I was with the Office of the

20 Prosecutor.

21 Q. Now, the material that you became involved with, was that a fairly

22 large volume of material?

23 A. Yes.

24 Q. And just so that the Court has a general idea, can you tell us,

25 give us a sense of what it was like handling that material. Was that a

Page 6088

1 fairly straightforward processing of it or was it labour-intensive and

2 slow, deliberate?

3 A. It wasn't straightforward, in part because we received the

4 material in many different batches. So we worked our way through it as we

5 received it, and as we got to understand and know the material better, it

6 involved looking at printed transcripts of the material and then later

7 notebook -- notebooks, the original transcriptions of that material.

8 After that also audiorecordings of that material and then eventually also

9 electronic versions of it.

10 Q. Now, could you describe your role for the Court in terms of the

11 processing of this intercepted material?

12 A. Well, I was very involved with it from the beginning, and oversaw

13 the -- its processing. Early on we put together a small team, I put

14 together a small team of interpreters and language assistants that began

15 to work through it and we just -- we established a system by which we

16 could keep track of the material in a way that would be searchable and

17 reliable. And that process also evolved as we got to know the material

18 better. I essentially oversaw the process and worked very closely with

19 the material for about a two-year period.

20 Q. Okay. Now, did you also become involved in the -- well, the

21 analysis and organisation of that material?

22 A. Yes.

23 Q. And did -- well, could you tell us what that involved, briefly?

24 A. Mm-hmm. It initially involved setting up a fairly simple table

25 and then eventually, as -- as we understood the material better and saw

Page 6089

1 some of the complexities of the material, we established a database that

2 would help us make connections between the various versions of the

3 conversations, for lack of a better term. The connections between the

4 printouts that we had and the notebooks that we had, and then the

5 sometimes multiple recordings of the same conversations.

6 Q. Now, did you make use of investigators, for example, in this

7 process?

8 A. Yes.

9 Q. And did you make use of military analysis -- analysts or analyses

10 in this process?

11 A. Yes. People on the team were very involved with this material.

12 We did the initial analysis, but had constant communication with the

13 military analysts and investigators on showing how the material related to

14 the other -- the other documents and witness statements and other

15 information that the investigation had collected.

16 Q. Now, as part of the processing of this material was that done

17 first in relation to -- was that done in relation to your organisation of

18 the material with regard to the case in which you testified, the Krstic

19 case?

20 A. Yes. My recollection is that we -- we had the information before

21 and we were simply working with it to understand better the events that --

22 that occurred in 1995. And then that body of material certainly fed into

23 the Krstic trial and subsequent trials.

24 Q. And was one of the objectives in the processing of this material

25 for you to determine whether or not the material was reliable or

Page 6090

1 authentic?

2 A. Yes.

3 Q. And are you continuing to do -- to engage in this processing in

4 relation to the organisation of the materials with respect to this

5 particular case?

6 A. Yes.

7 Q. Now, in determining whether this material was reliable and

8 authentic, did you have an occasion to review some of the intercepted

9 material?

10 A. Yes.

11 Q. And can you tell us what kind of material you examined?

12 A. I'm not sure I understand your question.

13 Q. Okay. Well, did you examine printouts of these --

14 A. Right.

15 Q. -- intercepted communications, for example?

16 A. Yes.

17 Q. Okay.

18 A. We examined the printouts which we had initially, then notebooks,

19 then audiorecordings, and then electronic printouts.

20 Q. Okay. Now, you are aware that your testimony today is only

21 limited to some extent and we will revisit that at some time in more

22 detail on another occasion. But I would like to focus your attention

23 specifically to two audiotapes, if I may.

24 A. Okay.

25 Q. The first is a tape that's designated T000-0471, otherwise known

Page 6091

1 as Q2. Are you familiar with that designation?

2 A. Yes.

3 Q. And can you tell us if you know the circumstances under which that

4 tape came into the possession of the Office of the Prosecutor?

5 A. Yes.

6 Q. Okay.

7 A. In March of 1998 there was a mission to Tuzla, to the 2 Corps

8 headquarters, and it was during that mission that 2 Corps authorities

9 provided access to 19 tapes. When I say that they provided access,

10 they -- they let members of the Prosecution team observe those tapes but

11 not take possession of the tapes.

12 Q. You say this is in March of 1998?

13 A. That's right.

14 Q. Okay. And do you know who was involved in identifying those

15 particular tapes from the Office of the Prosecutor?

16 A. I believe it was Peter Nicholson and Richard Butler, Rick Butler.

17 There may have been others, but -- but those two individuals come to mind.

18 There was also a -- a gentleman by the name of Jack Hunter who the ICTY

19 OTP team had brought in from the bureau of alcohol, tobacco and firearms

20 from Washington, D.C., who was an expert in radio communication and tape

21 authentication, and he also came into contact with those tapes at that

22 time.

23 Q. Now, you have indicated that the Prosecution team did not take

24 those tapes in March of 1998. And do you know the reason for that? Do

25 you know why that's -- that was the case?

Page 6092

1 A. Yes. We didn't have proper authority at that point from the

2 Bosnian Ministry of Defence to take possession of those materials.

3 Q. Do you know if that permission was subsequently received and when,

4 if at all, the tapes were turned over to the Office of the Prosecutor?

5 A. Yes. We had a subsequent mission in April of 1998, and it was

6 during that mission, late April, that -- that we were given permission to

7 take those tapes and other materials with us.

8 Q. Okay. Now, the particular tape, Q2, was that among the tapes that

9 was turned over in 1998, April?

10 A. Yes, it was.

11 Q. Okay. And do you know who was involved in the turning over of

12 those tapes from the military end of it?

13 (redacted)

14 Q. Was the Q2 turned over singularly or turned over with other tapes.

15 ?

16 A. It was turned over with the other 19 tapes.

17 Q. Okay. Have you confirmed the circumstances of its transfer?

18 A. Yes.

19 MR. VANDERPUYE: May I have with the Court's permission, 65 ter

20 1069 on the e-court, please. Before we -- before we proceed, could you

21 stop right there? I wanted to bring the Court's attention -- can we just

22 go into private session for one moment, please?

23 JUDGE AGIUS: Let's do that. Private session, please.

24 [Private session]

25 (redacted)

Page 6093

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 [Open session]

17 JUDGE AGIUS: We are in open session.

18 MR. VANDERPUYE: I'm sorry, I'm just waiting for the document to

19 appear in e-court. There it is. Thank you.

20 Q. Ms. Frease, is this the document that you referred to?

21 A. Yes.

22 Q. Okay. And were you able to confirm the circumstances of the

23 transfer through examination of this particular document?

24 A. Yes. And I was there at that time --

25 Q. Okay.

Page 6094

1 A. -- also.

2 Q. Is and just so the record is clear, could you tell us what this

3 particular document is?

4 A. It's a transfer, it's a receipt that the 2 Corps wrote up, handing

5 over the 19 tapes to Jack Hunter.

6 Q. Okay. Thank you. It reflects a date of transfer of the 25th of

7 April 1998?

8 A. That's correct.

9 Q. Okay. Were you able to confirm when the tape was received by the

10 Evidence Unit following this particular transfer?

11 A. Yes.

12 Q. And can you tell us approximately when that was?

13 A. The evidence log shows that the tapes came back to the ICTY in

14 March of 2000 and that they were submitted into evidence in April, April

15 4th of 2000.

16 Q. Okay. And have you subsequently had contact with the tapes?

17 A. Yes.

18 Q. Okay. At this point I would like to actually play the particular

19 tape. I could proceed otherwise with respect to the second tape and then

20 play them both with the Court's permission. I don't know how you would

21 prefer to proceed.

22 JUDGE AGIUS: I think we can safely leave it up to you.

23 MR. VANDERPUYE: Okay. All right. Thank you. Then I guess at

24 this point what I would like to do is play the tape in question. That's

25 tape Q2. The tape has been, as I understand it, cued up and is ready to

Page 6095

1 be played. It will be played on the original machine which has already

2 been provided to the sound booth. And I would like to direct the Court's

3 attention first to tab 2. And the counter for the record of the

4 conversation is 082 to 095. I wonder if it would be possible, because I

5 know that the tape is in B/C/S, I know that the Court has a transcript,

6 but I don't know if it would be possible to even follow the conversation

7 in English, listening to it in B/C/S. I wondered if it would be possible

8 if Ms. Frease could direct the Court by using the ELMO as to what specific

9 line the tape is referring to in English, if that would be of benefit.

10 JUDGE AGIUS: She's your witness. You proceed according to what

11 you consider --


13 JUDGE AGIUS: -- conducive to the Prosecution. And if there is

14 anything that the Defence objects to, we'll provide accordingly.

15 Yes, Mr. Meek.

16 MR. MEEK: Mr. President, I have a question.

17 JUDGE AGIUS: To me or to Mr. --

18 MR. MEEK: Well, probably to you and the Prosecutor. Seems like

19 on page 31 line 17 Mr. Vanderpuye says, "I would like to direct the

20 Court's attention first to tab 2." I'm just curious if you have something

21 we don't have. I don't have anything that has tab 2 on it.

22 JUDGE AGIUS: Tab 2 is a transcript. Tab 2 is a transcript of

23 what allegedly is tape Q2.

24 MR. MEEK: Okay. Nobody provided Defence counsel with that.

25 MR. VANDERPUYE: All right. My --

Page 6096

1 JUDGE AGIUS: Thank you for pointing that out. And I think we'll

2 need to attend.

3 MR. VANDERPUYE: If you could just bear with me for a moment. My

4 understanding is that this was provided to Defence counsel actually before

5 the turn of the year, in November at some point, because it specifically

6 related to conversations that were the subject of testimony for --

7 JUDGE AGIUS: All right. --

8 MR. VANDERPUYE: -- operators that had come to court to testify.

9 JUDGE AGIUS: That doesn't solve anything. I don't think that

10 Mr. Meek was intending to say that they had never been provided with this

11 transcript. What's important is that this transcript is available now

12 while Ms. Frease will be asked questions about it. I suppose one can

13 download it straight on e-court. I would imagine. You have the ter

14 number, the 65 ter number, which is 106 -- no. Q2 would be 1379. All

15 right. There are copies available. We can make them -- who else from the

16 Defence teams doesn't have a copy of the transcript of Q2?

17 MS. FAUVEAU: [Interpretation] I thank you, Your Honour. Nobody on

18 the Defence team has received that today.

19 MR. VANDERPUYE: We're not contending that they were provided

20 today. We're contending essentially they were provided a couple of months

21 ago. I was under the impression - I do apologise - that it was pretty

22 well understood that these tapes were going to be the subject of the

23 testimony today. I know I didn't e-mail anybody in particular to say to

24 bring the packet with you, but I'm not sure if the question is that you've

25 never received -- the issue is that you've never received them or you just

Page 6097

1 don't have them with you now.

2 JUDGE AGIUS: Yes, Madam Fauveau, I think it's very obvious, I

3 don't think anyone needs to answer that question. They don't have it

4 available now. So that's the position. And I think you are wasting time.

5 We could have utilised the time to have them photocopied and brought in

6 the courtroom in the meantime while we have been discussing this.

7 MR. VANDERPUYE: Okay. I'll see if I can have that done.

8 JUDGE AGIUS: The thing is as I understand it is one version --

9 one version is going to be on the ELMO, if I under Mr. Vanderpuye well.

10 He's going to ask Ms. Frease to point out excerpts from it. The other

11 one, the English version, can be put on the -- on e-court, and I see -- I

12 see it there. And one can follow accordingly.


14 JUDGE AGIUS: I think we can proceed.

15 [Microphone not activated].

16 It's 65 ter number PO1387E, for the record. Yes, go ahead.

17 MR. VANDERPUYE: Whenever the -- whenever they're ready in the

18 booth, we could play the tape.

19 [Audiotape played]

20 MR. VANDERPUYE: Okay. Thank you. If we could proceed to the

21 second conversation, which is tab 3, for the benefit of the Court. And 65

22 ter 1396, for e-court.

23 [Audiotape played]

24 JUDGE KWON: Can we stop it, please? I don't think it's on

25 e-court yet.

Page 6098

1 JUDGE AGIUS: We still have the previous one.

2 MR. VANDERPUYE: Thank you, Judge.

3 JUDGE AGIUS: And let's start again.

4 THE WITNESS: It's not the correct one.

5 JUDGE AGIUS: It's not the correct one.

6 THE REGISTRAR: May I have the 65 ter number for the B/C/S,

7 please.

8 MR. VANDERPUYE: 65 ter number for the B/C/S. I understand it's

9 1396C.

10 [Audiotape played]

11 MR. VANDERPUYE: Thank you. For the record that was tab 3, and

12 the counter on the tape machine will run from 112 to 126. I'd like to

13 proceed with the other tape, if I may, and continue doing direct

14 examination. Okay.

15 JUDGE AGIUS: Could you give the 65 ter number to Madam Registrar,

16 please?

17 MR. VANDERPUYE: It's 1395F, that's the tape. If I may inquire,

18 Mr. President.

19 Q. Ms. Frease, are you familiar with the tape that's designated

20 T000-0822?

21 A. Yes.

22 Q. Okay. Is that otherwise known as tape number 49?

23 A. Yes.

24 Q. Can you tell us if you know the circumstances under which that

25 particular tape came into the possession of the Office of the

Page 6099

1 Prosecutor?

2 A. Yes. It was obtained during a search of the army of

3 Bosnia-Herzegovina military archives in October of 2000.

4 Q. Okay. And have you examined any material in order to confirm the

5 circumstances of its transfer?

6 A. Yes.

7 Q. Can you tell us generally what that material was?

8 A. There was a -- a log that I looked at from the ICTY OTP team that

9 seized the material, as well as a transcript from a witness that testified

10 in the rebuttal case of the Prosecutor versus Radoslav Krstic.

11 Q. Now, can you tell us what particular -- what particular parts of

12 the transcript or documents you referred to in order to confirm the

13 circumstances of this transfer?

14 A. There was one document that originated from 2 Corps in Tuzla that

15 showed the transfer of 86, I believe it was, reel-to-reel tapes to their

16 Sarajevo headquarters.

17 MR. VANDERPUYE: May I have 65 ter number 1067, please displayed

18 on e-court?

19 Q. All right, Ms. Frease. Is this the document that you had just

20 referred to?

21 A. Yes.

22 Q. Okay. And just so the record is clear, can you tell us what this

23 document is?

24 A. Yes. It is a receipt from the army of Bosnia-Herzegovina, 2 Corps

25 headquarters, from their intelligence section, that is a record of various

Page 6100

1 documents, archival material, tapes, audiocassettes, reel-to-reel tapes

2 and others that were transferred to -- to the army of Bosnia-Herzegovina's

3 Main Staff, and the date on that document is September 19, 1996.

4 Q. Okay. Did you review any other documents in relation to your

5 confirming the circumstances of this transfer?

6 A. Other than the testimony, no.

7 Q. Okay. You indicated something about a log; is that correct?

8 A. Yes. I'm sorry, when you said transfer, I thought you meant

9 transfer from 2 Corps to Sarajevo, but transfer from Sarajevo to the ICTY,

10 yes, I did review other documents. And there was a log that -- there were

11 two logs, actually. One that was produced by the Sarajevo intelligence

12 department in which they provided a breakdown of the tape and the contents

13 of that tape, very similar to the kind of breakdowns that we produced

14 internally. And then the second log was a log of -- a record of the

15 search that was conducted by a different OTP team in Sarajevo that was

16 responsible for actually taking possession of that tape, among a large

17 body of other material.

18 Q. Could I have 65 ter 1073, please, shown on e-court. First, if I

19 could, the first page of it, and then the fourth page of it with an ERN

20 ending 2485.

21 Is this the document that you're referring -- okay. If we could

22 just go back to the first page for a moment, please. Is this the document

23 you were referring to concerning a log relating to the search of archives

24 located in Sarajevo?

25 A. Yes.

Page 6101

1 Q. Okay. Could we please turn to page -- I think it was four. It's

2 ERN ending 2485.

3 Did you review this particular page in relation to this

4 transfer?

5 A. Yes.

6 Q. Okay. And was a magnetic reel-to-reel tape designated number 49,

7 among the tapes that were inventoried as a result of the search?

8 A. Yes.

9 Q. And just so the record is clear, can you tell us -- there are a

10 number of rows here, can you tell us where that is --

11 A. Yes. It's --

12 Q. -- on this document?

13 A. -- on the far left column, document number 100132, one page, and

14 the date located 17 October of 2000.

15 Q. Okay. And there is an indication --

16 A. And there is an indication, exactly, that 98 audiomagnetic reels

17 were seized and it provides the numbers of those reels; among the numbers

18 is a tape number 49.

19 Q. Okay.

20 MR. VANDERPUYE: If I could have 65 ter 1070, please, displayed on

21 e-court.

22 Q. Do you recognise this document?

23 A. Yes, I do.

24 Q. Okay. Can you tell us what that is?

25 A. It is an internal log that the military intelligence battalion for

Page 6102

1 an electronic -- the electronic warfare company for the army of

2 Bosnia-Herzegovina, I guess at that time it was -- it was called the

3 federation of Bosnia-Herzegovina army, produced on the 1st of July, 1998.

4 It relates to tape number 49 and provides a breakdown of the contents of

5 that tape.

6 Q. And were you able to compare the contents as it is summarised on

7 this document with the contents of tape T000-0822, both in terms of its

8 contents and sequence?

9 A. Yes, I was.

10 Q. Okay. And do they conform to one another?

11 A. Yes, they do.

12 MR. VANDERPUYE: I would at this time like to have the tape

13 played, and we can follow the same procedure as before. The first

14 conversation is at tab 4. The P number is 02352E for the English version,

15 the B/C/S version is -- P 02352F in B/C/S. For the people in the sound

16 booth and for the record, the counter number should run from 016 to 025 on

17 the UHER machine. I think whenever the sound people are ready we can play

18 the tape. Is it in e-court? It's not in e-court.

19 JUDGE AGIUS: It is now.

20 MR. VANDERPUYE: Thank you. Thank you, Mr. President.

21 [Audiotape played]

22 MR. VANDERPUYE: I would like if we could proceed to the next

23 intercepted communication. That is 13 -- 65 ter 1387E, the English

24 version, 1387F in B/C/S. For the record, for the people in the booth, the

25 counter is 047 through 057. And for the Court's benefit, it's tab 5 of

Page 6103

1 the packet. If you can tell me -- is it ready? Okay. Whenever the

2 people are ready in the booth, I think we can begin.

3 MR. MEEK: Is it possible to get the English versions on the

4 e-court?

5 JUDGE AGIUS: That's what I have. Now, if -- if -- oh, yeah,

6 that's the ELMO, sorry. Yes. We have to change that. On e-court it's

7 not the correct one.

8 JUDGE KWON: I think that's the wrong number. Could you check the

9 65 ter number again.


11 Q. Ms. Frease, if I could just ask you, do you know or are you able

12 to verify or check where these particular conversations originally

13 recorded, whether it was the northern facility or the southern facility.

14 (redacted)

15 (redacted)

16 JUDGE AGIUS: Let's redact that, please. Just the name of the

17 site we need to redact.

18 MR. VANDERPUYE: Just so that we're clear, the -- you've indicated

19 what we're listening to now originated in the southern site?

20 A. Right.

21 Q. And the -- and the previous tape?

22 A. Originated in the northern site.

23 Q. Okay. Thank you. All right. I guess we're ready to go. And

24 that was --

25 JUDGE AGIUS: Why do we have -- you knew exactly what I was going

Page 6104

1 to say. So ...

2 JUDGE KWON: Could you check what appears in e-court is the

3 correct one.

4 JUDGE AGIUS: It's not. It's definitely not. I mean, the one

5 that appears -- that should appear should start with X, "momenat."

6 THE REGISTRAR: I think it's 65 ter number 01387E.

7 MR. VANDERPUYE: Yes, okay. I believe that's correct.

8 JUDGE AGIUS: I think so.

9 MR. VANDERPUYE: That appears to be correct. Okay. If we're

10 ready to play the tape, I think we can proceed.

11 [Audiotape played]

12 MR. VANDERPUYE: All right. Thank you. I would like to play

13 the -- the last intercepted communication, which is 65 ter 1395E for the

14 English version, and 65 ter 1395F for the B/C/S version. It's tab 6 for

15 the Court's reference, and for the counter, it is 059 through 066. I just

16 ask the people in the booth to wait until it's actually loaded into

17 e-court before it's played. All right. Do we have the -- okay, we're

18 ready. Any time you're ready in the booth, please.

19 [Audiotape played]

20 MR. VANDERPUYE: Thank you. At this point I would like to have

21 the actual tapes brought into the courtroom and shown the witness, if I

22 may.

23 Q. All right. Ms. Frease, you have with you two boxes. And those

24 contain the reel-to-reel tapes that you've testified about previously?

25 A. Yes.

Page 6105

1 Q. Okay. Could you just start with the one that's on top, please?

2 A. Yes.

3 Q. I think maybe it would be a good idea to place it on the ELMO, so

4 that everybody can see what it is that you're referring to.

5 A. Okay.

6 Q. Is it possible to zoom out just a little bit? All right. We'll

7 start with the cover. Do you recognise that?

8 A. Yes.

9 Q. Okay. And what do you recognise that to be?

10 A. The tape cover for tape Q2, what we used to call Q2, which is now

11 T000-0471.

12 Q. Okay. Is there any designation of the -- well, of Q2 on the box?

13 ?

14 A. Yes. On the -- on the -- the side right here, just -- shall I try

15 to turn it?

16 Q. Yes, please. Okay. And could you indicate, just pointing to it

17 exactly where it is?

18 A. Right here.

19 Q. Okay. And that would be in the lower part of the side, or the

20 back, spine, I should say --

21 A. Mm-hmm.

22 Q. -- of the box?

23 A. That's right.

24 Q. And could you flip it over to the other side, the side that

25 previously wasn't displayed, just so everybody can see what is on there.

Page 6106

1 Now, would you be so kind as to open -- open the box, please. And could

2 you place it back on the ELMO.

3 A. The box?

4 Q. Yes. Now, there -- there appears to be an index on this portion,

5 on the inner portion of the box.

6 A. That's right.

7 Q. Okay. And do you know what that refers to?

8 A. It seems to refer to -- well, material that was previously

9 recorded on this tape. One of the interpreters told me that this "Tuzla

10 Slet - 83" probably referred to little dances that people were doing for

11 Tito's birthday or something like that.

12 Q. Okay. Could you turn that over to the other side, please, just so

13 that everybody can see what it is? Okay. And that side of it is blank;

14 is that right?

15 A. That's right.

16 Q. Would you be so kind as to remove the physical tape from the box?

17 And place that on the ELMO. Okay. There's a label on that?

18 A. Yes, there is.

19 Q. Okay. And that corresponds to the tape that was played,

20 T000-0471?

21 A. Yes, that was the label put on by the ICTY's evidence unit.

22 Q. Okay. And can you turn this tape over, please, to the other side?

23 Okay. On the lower part of the screen it's "48"?

24 A. That's right.

25 Q. Now, could you tell us -- well, could we just pull that a little

Page 6107

1 bit, zoom out just a little? There's a designation on the top of this

2 tape that appears to say Q48. Do you see that?

3 A. Yes.

4 Q. Okay. Now, were you able to determine whether or not this tape is

5 the Q2 tape that was referred to in your testimony?

6 A. Yes.

7 Q. Okay. And how are you able to do that?

8 A. By actually looking at the magnetic tape itself. Because when

9 Jack Hunter, the expert from the ATF lab, first examined the 19 tapes in

10 Tuzla in March of 1998 he wrote on the end close to where the actual

11 magnetic tape began.

12 Q. Were you able to find the designation Q2 on the lead to this

13 tape?

14 A. Yes.

15 Q. If it's possible, could you pull that out and show that on the

16 ELMO?

17 A. Yes.

18 Q. All right. Is this the designation you were referring to?

19 A. Yes.

20 Q. And that indicates a date of 3/11/98?

21 A. Right. Which in American -- the way that we record dates in the

22 U.S. it would mean March 11th, 1998, which was when Jack Hunter was at 2

23 Corps in Tuzla.

24 Q. Okay. And based on this, are you able to confirm that the tape

25 was received by the evidence unit was the tape that was turned over to

Page 6108

1 Jack Hunter?

2 A. Yes.

3 Q. Okay. I think we're done with this tape. Okay. For the record,

4 the -- this particular tape, T000-0471 corresponds with 65 ter number

5 1422. The tape in its entirety, okay.

6 I would like you to take a look at the second tape, if you could.

7 This tape should be T000-0822.

8 A. Do you want me it take it out?

9 Q. I would like you first to put the cover on the ELMO so the Court

10 can see. All right. Now, on this particular tape cover is the number

11 32.

12 A. That's right.

13 Q. Okay. Do you have any idea what that corresponds to?

14 A. No.

15 Q. Okay. Can you turn it over, the tape? Okay. On the other side

16 it is blank, of the cover, right?

17 A. That's right.

18 Q. Could you turn the tape on to its spine, please? Okay. And here

19 there appears the designation T000-0822, correct?

20 A. Yes.

21 Q. Okay. And that corresponds to the -- the tape that you previously

22 testified about?

23 A. Yes.

24 Q. Okay. Could you please open the box? Okay. And can you tell us

25 what appears on the cover?

Page 6109

1 A. Yes. It's an internal cover to the tape that has the number 39 on

2 it, written in two different places.

3 Q. Okay. Now, previously you had indicated that this particular tape

4 was a tape number 49?

5 A. Yes.

6 Q. Okay. Now, were you able to verify that that is, in fact, the

7 case with respect to this tape?

8 A. Yes. Number 49 is written on the actual reel-to-reel.

9 Q. Okay. Is it possible to display that on the ELMO so that the

10 Court can see what you're referring to? Okay. This is the actual tape,

11 right?

12 A. Yes.

13 Q. Has a label that corresponds to T000-0822?

14 A. Yes.

15 Q. Okay. And there is an indication on this side of the tape of

16 49A?

17 A. Yes.

18 Q. Can you tell us what that designation is?

19 A. Yes. Based on the log that the army of Bosnia-Herzegovina

20 provided, they indicated that tape 49, side A, didn't have any material on

21 it. So I would say that this is side A of tape 49.

22 Q. Okay. And could you turn the other side over, please? Okay. Can

23 you tell us what's on -- what appears on this side of the tape?

24 A. Also a number 49.

25 Q. Okay. There's no particular designation 49B?

Page 6110

1 A. No.

2 Q. But there is on the other side of the tape?

3 A. Yes.

4 Q. All right. Okay. I think I have no further questions at this

5 point. Thank you, Ms. Frease.

6 JUDGE AGIUS: Thank you, Ms. Frease. I understood earlier on that

7 you wanted to show us machines.

8 MR. VANDERPUYE: We have the machines and, yes, I can show them to

9 you, if you would like to see them.

10 JUDGE AGIUS: That's what I understood Mr. McCloskey had said

11 earlier on. I don't know how -- whether it is for you.

12 MR. VANDERPUYE: All right. I'll show it to you.

13 JUDGE AGIUS: Not to me.

14 MR. VANDERPUYE: To the Court. Just a moment, before Ms. Frease

15 leaves.

16 Q. Ms. Frease, I wanted to ask you about the machines because I see

17 you did bring it with you?

18 A. Yes.

19 Q. Can you tell the Court what you have there?

20 A. It's an UHER machine.

21 Q. Can that go on the ELMO? It seems kind of heavy, but maybe. Can

22 we come out a little bit? That's as far as we can go? Okay.

23 You say this is an UHER machine?

24 A. Yes.

25 Q. Okay. And are you familiar with the operation or use of these

Page 6111

1 machines?

2 A. Yes.

3 Q. And could you just describe to the Court how this machine is set

4 up and what specific characteristics it has?

5 A. It has a -- it has a tape counter on it, it has controls to play,

6 to start, to pause it, to stop it, to record, and to rewind and fast

7 forward. It also has a knob where you can control the speed.

8 Q. And can you tell us where that is? I mean it's not possible to

9 see it, I don't think, on the ELMO, but --

10 A. It's on the far right, far right side of the machine.

11 Q. And the counter, can you tell us where that is on the machine?

12 A. It's -- it's also ...

13 Q. Okay, great. We can see it on the ELMO?

14 A. The counter is here, the speed control is here, and then these are

15 the just play controls for recording and stopping, pausing, rewinding,

16 forwarding.

17 Q. Okay. There's also what appears to be a level meter, right?

18 A. Yes.

19 Q. Is there volume control?

20 A. That's right.

21 Q. And appears to be also a tone control?

22 A. Right.

23 Q. And could you just cry for the Court if you can recall, and as

24 brief a manner as you can, how it is that tape is actually threaded and

25 played?

Page 6112

1 A. Yes. There is an empty reel-to-reel on the right-hand side.

2 JUDGE AGIUS: I don't think we need to go through this. I

3 think --

4 MR. VANDERPUYE: Very well.

5 JUDGE AGIUS: I think we have all used something like that, given

6 our age.

7 JUDGE PROST: Excuse me?

8 MR. VANDERPUYE: All right.

9 JUDGE AGIUS: I have. I have. Just one question. Did it have

10 the possibility of deleting, wiping out tape --

11 THE WITNESS: You could go back and record over.

12 JUDGE AGIUS: That's the way it was.

13 THE WITNESS: Mm-hmm.

14 JUDGE AGIUS: All right.

15 MR. VANDERPUYE: With that I have no further questions,

16 Mr. President.

17 JUDGE AGIUS: I think Mr. McCloskey is not agreeing with you.

18 MR. McCLOSKEY: Excuse me, everyone, but Ms. Stewart alerted to

19 me through a slight problem we've gotten ourselves into. As you know it

20 is a practice for a witness not to speak to the Prosecutor mid-testimony.

21 We really need to speak to Ms. Frease about her upcoming testimony,

22 about the exhibits, so we can get prepared, and I should have thought of

23 that beforehand so we could request the Court to waive that particular

24 practice. I don't see any prejudice to anyone if that practice is

25 waived.

Page 6113

1 JUDGE AGIUS: Any submissions from the Defence teams? All right.

2 So permission is granted. Of course you have to use your good judgement

3 and, I mean, you know what the rules of the game are, and you are not to

4 abuse of any of them.

5 So there is nothing else Ms. Frease wanted to show us. I think

6 it's just one machine she had with her or more than one machine?

7 MR. VANDERPUYE: Just one machine that she had with her. Well

8 there is the other machine that's actually -- that actually played the

9 recordings, but I don't know that it's necessary for the Court to examine

10 that as well.

11 JUDGE AGIUS: Yes. The understanding was that there will not be

12 any cross-examination today. Those are pleasures yet to come when

13 Ms. Frease returns. But if there is anything that would you like to ask

14 today, maybe in relation either to the two tapes or to the machine that we

15 have just been shown or anything else, you are free to do so. I see that

16 there is no such desire or intention, which basically means, Ms. Frease,

17 that you are free to go. You will of course return in due course to

18 proceed with your testimony. I wish to thank you for having come over and

19 I wish you a safe journey back to wherever you are going.

20 THE WITNESS: Thank you.

21 JUDGE AGIUS: Is there anything else, any further business you

22 would like to transact?

23 MR. McCLOSKEY: Mr. President, just one brief statement. If I

24 could invite the Defence attorneys, we are bringing in, I believe it's

25 February, several archaeologists, anthropologists and pathologists. I

Page 6114

1 would invite the Defence if they have any stipulations that they may find

2 me easier to stipulate than getting your point out of these witnesses, and

3 they will be very repetitive because they all did the same thing, the

4 diggers and the pathologists, and if there is any point, they're coming in

5 from all over the world and we planned for that, and -- but if anyone --

6 any last-minute effort to make some stipulations on some of this material

7 and some of the issues that have come over and over again, we appreciate

8 it, we work with that, because that is going to be a fair amount of time,

9 court time.

10 JUDGE AGIUS: All right. I think that's a good suggestion. I

11 suppose that I -- I just recommend to the Defence teams to try and think

12 about this and hold discussions with Mr. McCloskey with a view to

13 streamlining the procedure as much as possible. All right.

14 We will reconvene Monday. I think we are sitting in the morning.

15 We are sitting in the morning. So Monday. Thank you, and have a nice

16 weekend.

17 --- Whereupon the hearing adjourned at 11.54 a.m.,

18 to be reconvened on Monday, the 22nd day of

19 January, 2007, at 9.00 a.m.