1 Thursday, 7 February 2008
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 2.19 p.m.
5 JUDGE AGIUS: Good afternoon.
6 Mr. Registrar, could you call the case, please.
7 THE REGISTRAR: Good afternoon, Your Honours. Good afternoon
8 everyone in and around the courtroom. This is case number IT-05-88-T, the
9 Prosecutor versus Vujadin Popovic et al.
10 Thank you, Your Honours.
11 JUDGE AGIUS: Thank you.
12 All the accused are here. I'm looking at the Defence teams. I
13 notice the absence of Mr. Bourgon only and Mr. Krgovic, Mr. Krgovic. The
14 Prosecution, we have Mr. McCloskey, Mr. Nicholls and Mr. Thayer.
15 All right. Let me start with the leftovers from yesterday's
17 Mr. Haynes and Mr. McCloskey, we had a short discussion yesterday
18 following the examination of your list of documents, Mr. Haynes rather
19 than Mr. McCloskey, with the Butler testimony, and at that time
20 Mr. McCloskey raised some issues in relation to two documents; that is,
21 witness statement of Sabic, Vejiz, 7D234 and that of Milan Maric, 7D272,
22 and the agreement was that you would have a tete-a-tete discussion
23 following the sitting and inform the Trial Chamber of the outcome of your
25 What's the outcome, please? Mr. Haynes.
1 MR. HAYNES: We have created two new exhibits. I believe they
2 will be, when they're uploaded into e-court as they presently are, being
3 7D725 and 7D726. They are respectively the portions of those interviews
4 or witness statements which were either read to or read by Mr. Butler
5 during the course of his cross-examination, and I sent them by e-mail to
6 Mr. McCloskey. He's briefly had the opportunity to look at them. I hope
7 that it will be agreed that 7D725 and 726 will be tendered into evidence.
8 I've been reminded that I should point out to you that -- so that
9 they can be identified, those exhibits also include the first page of the
10 interview or witness statement so you know who it is. But other than
11 that, I think one is two pages and one is one page.
12 JUDGE AGIUS: All right. Thank you, Mr. Haynes.
13 Mr. McCloskey.
14 MR. McCLOSKEY: Yes, that's fine, Mr. President. We're fine with
15 that, the way he's defined it.
16 JUDGE AGIUS: All right. So the bottom line is you are no longer
17 requesting putting into evidence 7D234 and 272, and you're replacing those
18 by 7D725 and 726, to which there is no objection.
19 MR. HAYNES: Correct.
20 JUDGE AGIUS: Correct, Mr. McCloskey?
21 MR. McCLOSKEY: Yes, Mr. President.
22 JUDGE AGIUS: All right. So 7D725 and 7D726, even though it may
23 well be the case that they are not yet in e-court, are being admitted.
24 All right. Then yesterday, when we were discussing the Nikolic
25 Defence team list of documents, you, Mr. McCloskey, raised an objection in
1 relation to 3D274, which is an e-mail dated 13th January 2008, sent by
2 Ms. Stewart, on your behalf, to all the Defence teams, which I don't need
3 to read. Following the submissions, you agreed, at the invitation of the
4 Trial Chamber, that you would meet and try to come to a conclusion or to
5 an agreement. Have you reached an agreement, Ms. Nikolic?
6 MS. NIKOLIC: [Interpretation] Yes, Your Honour. I do believe we
7 have reached an agreement. Mr. McCloskey and I exchanged several messages
8 in that regard.
9 The witness was examined on the matters contained in
10 Mr. McCloskey's e-mail, and it is true that the document was not shown to
11 the witness. However, Mr. McCloskey and I agreed that there is no longer
12 an objection, and since the witness was asked some questions in relation
13 to this, Mr. McCloskey would no longer oppose the admission of this
14 document into evidence.
15 JUDGE AGIUS: Okay, thank you.
16 Mr. McCloskey, do you confirm that?
17 MR. McCLOSKEY: Mr. President, mostly. This e-mail was never made
18 reference to. Some of the subject matter in it was, and to that degree I
19 have no objection to the e-mail itself coming in.
20 JUDGE AGIUS: All right. One question to both of you. This
21 e-mail, in the first page at the top, there is an indication of all the
22 e-mail addresses of everyone. That includes Ms. Stewart's and that also
23 includes yours and Mr. Mitchell's. Do you wish to retain it as it is or
24 would you like at least to redact or -- redact that part which is not
25 necessary for the purposes that you intend the document --
1 MR. McCLOSKEY: If we could redact all those addresses, that's a
2 very good idea.
3 JUDGE AGIUS: Because I don't think they are of any use to
4 anybody, and if it's going to be public, I don't think this should be
5 public domain.
6 MS. NIKOLIC: [Interpretation] Yes, Your Honour, I agree too.
7 JUDGE AGIUS: All right. So, Mr. Registrar, you'll look after
8 this. Let me show you what I'm talking about.
9 [Trial Chamber and registrar confer]
10 JUDGE AGIUS: So we are redacting the entire top part of the
11 document, including who sent it and who were the addressees. I think from
12 the rest of the debate, it should be clear what we're talking about.
13 All right. That disposes of this second. So 3D274, with the
14 understanding that a part thereof that's being redacted, it's being
16 Yes. Something which this was the easiest of all the issues we
17 left pending yesterday, I'm sure you have reached an agreement, a
18 stipulation, we're talking of P45, alias P1059.
19 Yes, Mr. Josse.
20 MR. JOSSE: I'm glad to say we have, Your Honour, although there
21 is one added complication which Mr. McCloskey will tell you about in a
23 So far as P1059 is concerned, we are prepared to stipulate that
24 this document was handed to the Office of the Prosecutor on the 18th of
25 February of the year 2000 by Nenad Petrusic, and I've discussed that not
1 just with Mr. McCloskey but also with Madame Fauveau, of course.
2 So far as P45 is concerned, we are prepared to stipulate that that
3 document was handed to the Office of the Prosecutor on the 2nd of June of
4 the year 2003 by Dragan Obrenovic.
5 So that's as far as we are prepared to go. As I say, there is now
6 an added complication which my learned friend will no doubt address you
8 JUDGE AGIUS: All right. Thank you for your practical approach,
9 Mr. Josse, which is typical of you and which we appreciate.
10 Mr. McCloskey.
11 MR. McCLOSKEY: Yes, Mr. President.
12 Regarding the first one, 1059, that's correct, and the language
13 that Mr. Josse used is basically right out of our -- what we call
14 our "myth form," indicating how it was received. It's actually by Mr.
15 Mark Harmon from Mr. Petrusic.
16 The next one, number 45, is right out of the form. Actually, it
17 was received by counsel for Obrenovic, Dusan Slijepcevic. I have the
18 actual forms, if that's easier. I don't really -- It doesn't matter to
19 me, if it's just part of the oral record and the form.
20 And the interesting addition to that is I'd asked, oh, for one
21 last complete review of our collections to see if it might -- this
22 document might be found in another form, and it was found -- an original
23 copy of it was found in the Drina Corps collection. And I have a 65 ter
24 number just given to me by Ms. Stewart, 3205. It came under the name of
25 Ulan Gazero [phoen], so we had to get a little trickier in our search to
1 find that; but it's clearly the identical document that came from the
2 Drina Corps. It's not loaded in e-court. I would like to offer that into
3 evidence, as it appears to be contested. I guess it's M. Ulan Gazero, to
4 be more exact, is how it came out, but it's clearly the identical document
5 from the Drina Corps collection, so that you now see this document coming
6 from Mr. Obrenovic and coming from the Krstic Defence team, and now the
7 Drina Corps collection. And this document is also -- the number of it --
8 the VRS number 34-1629, is referred to in other documents in this case,
9 and I won't go into that, but that is roughly the history of this. And I
10 think you having the complete history is a good idea in this particular
11 situation, but I don't feel the Prosecution needs to go any further into
13 JUDGE AGIUS: Is it identical to the other two?
14 MR. McCLOSKEY: Yes. In my -- it's clearly the same document. I
15 haven't looked at it to see if there's -- you know, teleprinters sometimes
16 do different things, but it's clearly the same number document, the
17 wording is the same, and -- sorry, it was 3250 is the -- we've reversed
18 some numbers ourselves. So the Drina Corps 65 ter number is 3250, and
19 from our brief review of it, it's clearly the same document. We have not
20 done an analysis to see what other, maybe, mistypes in the teleprinter or
21 other things are on it, but it's clearly the same document. And it's an
22 original, as I mentioned.
23 JUDGE AGIUS: If it's the same, I think I know the answer, but if
24 it's the same, why do you want to make it three if you've already got two
25 of the same document?
1 MR. McCLOSKEY: Well, because there appears to be a challenge to
2 the authenticity, and -- you know the history of Mr. Obrenovic's retrieval
3 of the document. The history of the document that came from the Krstic
4 Defence came from the RS, which is -- is my understanding is a whole other
5 history. And so I think the third time is the charm on this one. It came
6 from the Drina Corps, so I think that those three things should establish
7 its authenticity beyond any possible reasonable doubt, which of course is
8 my objective here.
9 JUDGE AGIUS: Yes. Thank you, Mr. McCloskey.
10 Mr. Josse.
11 MR. JOSSE: I would not like to suggest that the authenticity of
12 the document is not in dispute. A double negative, I'm sorry, but I'm
13 sure the Court gets the gist of what I'm saying. There again, in effect,
14 this document is being offered up today from the Bar table, and I also
15 appreciate that it might be said, with some justification, that the
16 Defence have brought this upon themselves because of the stance that we
17 have taken in relation to 45 and 1059. That I also recognise.
18 The Chamber may or may not be aware that there is to be an
19 application by the Prosecution to adduce a not-inconsiderable number of
20 other documents, in effect, through the Bar table. Mr. McCloskey has
21 explained a technical reason, which I accept, as to why this document is
22 not in that motion, largely because it's late discovery. He and I only
23 discussed the matter at about noon today. What I would invite the Chamber
24 to do is to allow the Defence to lump this document in with the Bar table
25 motion and to respond at that particular juncture. In other words, we'd
1 ask for some time before responding to the submission.
2 So I know it further complicates matters, but I rather think that
3 matters are going to have to be put off in relation to this Prosecution
4 motion. I don't want to jump the gun here, and I certainly don't want to
5 do the Prosecution's work for them in relation to that particular motion
6 or application, but perhaps this document could join that list as well.
7 JUDGE AGIUS: Thank you, Mr. Josse.
8 Let me make myself clear, my mind clear on this. And if my
9 colleagues don't agree, then obviously not.
10 As I see it, we raised the issue of MFI'd documents because we're
11 approaching the Rule 98 bis decision -- proceedings. There are already
12 two of these documents, identical, identical twins, and I understand that
13 the differences are, I think in the English translation they are off,
14 rather than the original text; and the question of provenance that hung
15 over our heads yesterday has now been removed. The question of
16 authenticity, as such, can remain unprejudiced, taking up what you have
17 suggested, in; in other words, because the three of them will go in the
18 same basket. However, our position is that for the time being, we agree
19 with your suggestion that rather than deciding on 3250 now, we lump it
20 with -- we group it with the other documents that we are waiting to hear
21 from Mr. McCloskey about.
22 But what is your position as regards 45 and 1059, because I think
23 you need to have that crystallized for the purpose of Rule 98 bis.
24 MR. JOSSE: I dealt with that, Your Honour. When I stood up, I
25 asked what the stipulation was. That was the stipulation we made so far
1 as 45 and 1059 is concerned.
2 JUDGE AGIUS: All right.
3 MR. JOSSE: I can also give the Court this cast iron guarantee
4 that 3250 will not make a jot of difference to the 98 bis submission.
5 JUDGE AGIUS: That's what I think as well, but we won't deprive
6 you the opportunity of making submissions.
7 So 45 and 1059 will come in. The other one will stay in limbo
8 together with the others until we dispose of the matter.
9 MR. JOSSE: Thank you.
10 JUDGE AGIUS: Okay, thank you.
11 Aerial images, and specifically we're dealing with MFI'd documents
12 P2103 and P1516. If there are others, they will be put in the same
13 baskets. If there are others, the identification of we are not aware of
14 at the present, they will have the same treatment.
15 We have, in the time we had, carefully considered your submissions
16 relating to the aerial images until now MFI'd with the numbers I mentioned
17 before, 2103 and 1516, and we have done so together with the consultation
18 of the relevant transcripts of past sittings, when we dealt with the
19 issues of -- various issues relating to aerial images, aerial imagery.
20 Our decision is that the reasons adduced by you, Mr. Ostojic, particularly
21 yesterday, for not admitting these documents go to weight rather than the
22 criteria necessary for admission. The Trial Chamber is satisfied that
23 sufficient evidence on the relevance and the probative value of these
24 aerial images has been adduced by the Prosecution. Therefore, all aerial
25 images introduced are admitted without prejudice, of course, to the weight
1 that should or should not be given to them at the end of this case.
2 That disposes of aerial images.
3 Skorpion video.
4 MR. NICHOLLS: Good afternoon, Your Honours.
5 We have received an agreement on that. We were talking about it a
6 lot yesterday, and I have a written stipulation I can pass out. It's been
7 passed out to my friends.
8 JUDGE AGIUS: We haven't seen it.
9 MR. NICHOLLS: Yeah, I have it here. This is -- I've got it here,
11 JUDGE AGIUS: No, no, no. I mean, I thought I was looking at a
12 record stipulation, which would have gone in the "Guinness Book of
14 MR. NICHOLLS: Your Honour, I thank my friends, because I've been
15 talking with many of them this week and yesterday to resolve the language
16 of this stipulation. This has not been loaded up into e-court yet, but it
17 means that we will not be able to call the witness. I believe he was
18 PW-103. We will not be calling --
19 JUDGE AGIUS: That was the whole purpose of --
20 MR. NICHOLLS: Yes. So if I can just say we've provisionally
21 assigned the numbers 3248 to this stipulation, which is not in e-court
22 yet, but it will be. As I say, we were working it out yesterday afternoon
23 and throughout the court sitting yesterday.
24 The actual video which was played on November 3rd of 2006 would be
25 3249, and the transcript would have the same number.
1 While I'm on my feet, when we're done with this, I have a few more
2 short stipulations I could run through at this time or later, however the
3 Chamber pleases.
4 JUDGE AGIUS: Okay, thank you.
5 Do I have a confirmation of this from the various Defence teams?
6 If anyone does not agree that this stipulation has been reached or does
7 not agree as to the contents of this stipulation, please stand up. None.
8 So this is your stipulation. I think the document itself needs to
9 be given a number.
10 MR. NICHOLLS: Yes. That would be 3248, Your Honour.
11 JUDGE AGIUS: But I understood you --
12 MR. NICHOLLS: And the next number, 3249, would be --
13 JUDGE AGIUS: All right. This is 3248, and the video will be
14 3249. Okay. So that disposes of the Skorpion video matter.
15 Yes. You may proceed on the other stipulations.
16 MR. NICHOLLS: Thank you, Your Honour.
17 Again, I thank my friends. We've reached an agreement, so we will
18 not need to call back Alistair Graham, and I'll pass that to you now.
19 We've got a book that's been passed out to the Defence. It's the
20 identical book that was passed out last week, I think, if I could hand
21 those to Your Honours. That's just for the Chamber, Your Honours.
22 JUDGE AGIUS: Yeah. We need one more for Judge Kwon here.
23 [Trial Chamber and registrar confer]
24 MR. NICHOLLS: Now, Your Honours, I think the stipulation which is
25 written on page 1, the first stipulation of this exhibit, makes it quite
1 self-explanatory. It concerns a 12th of March, 2002 interview with
2 Mr. Borovcanin and the discussion of the video DVD which was played at
3 that time. In order to make sense of that interview and follow it, Your
4 Honours need to be able to tell what still image is being discussed in the
5 transcript, and that is the purpose -- the main purpose of this book.
6 The still images are the best that could be copied from the video,
7 and the video is also in evidence. This will be number 3246.
8 And, again, I thank the Borovcanin team, in particular, for being
9 very cooperative on working on this stipulation.
10 JUDGE AGIUS: Does anyone of the Defence teams wish to address the
11 Chamber on this stipulation and document? We hear none.
12 So this document, P3246, being stipulations relating to excerpts
13 from the video and interview with Ljubomir Borovcanin, is being admitted
14 and it will form part of the records.
16 MR. NICHOLLS: The third, Your Honour, is a very simple
17 stipulation with regard to the evidence of Witness 42, who is not a
18 protected witness, Ahmo Hasic, and it has to do with his description of
19 the school that he was held in Bratunac. And I can either read out this
20 short stipulation into the record, it's a few sentences, or I can pass it
21 out, whichever the Chamber or the Defence prefers. It's been agreed upon
22 by e-mail with the Defence.
23 JUDGE AGIUS: It being e-mail, I would prefer if he reads it out
24 so that we make sure that everyone has received the e-mail and everyone is
25 happy with it.
1 Go ahead.
2 MR. NICHOLLS: I'll read it out, then:
3 "In his testimony, witness Ahmo Hasic (Witness 42) referred to the
4 school where he was detained in Bratunac as the 'Vuk Karadzic' school. In
5 a proofing session on 13 July 2003, the witness circled a building on an
6 aerial photograph of Bratunac, ERN number 0297-8872-0297-8873, and stated
7 that he was 90 per cent sure that this was the building in which he had
8 been detained. The building circled by the witness is the 'old school' in
9 Bratunac, not the 'Vuk Karadzic' school. The old school in Bratunac is
10 located next to the Vuk Karadzic School."
11 That's the end of the stipulation. And the reason for that very
12 briefly, Your Honours, is that this circling of the building was something
13 that had been done in proofing back in 2003. That was disclosed to the
14 Defence, but it didn't come up in his direct or his cross-examination,
15 just this little discrepancy of the description, and we thought it should
16 be before the Chamber just for the whole picture.
17 JUDGE AGIUS: Thank you.
18 Does any one of the Defence teams wish to address the Trial
19 Chamber? Yes, Mr. Ostojic.
20 MR. OSTOJIC: Thank you, Mr. President, Your Honours.
21 Not on this issue, but we do have other -- I have other issues,
22 but not on this issue.
23 JUDGE AGIUS: We'll come to you.
24 Yes, Mr. Nicholls.
25 MR. NICHOLLS: The last item on my personal list: At the end of
1 the Witness Zoran Petkovic, I stated that I wanted to put in the
2 transcript of the Studio B video footage documentary. There was no
3 objection, but I said that we were going to, with the cooperation of my
4 friends, revise the transcript to make sure it was correct. We've done
5 that. The revised transcript is in e-court, and the number is P02012, and
6 so now I just formally want to ask that that be admitted. As I say, there
7 was no objection.
8 JUDGE AGIUS: Any objection from the Defence teams? We hear none,
9 so that addition of the video is being admitted.
10 MR. NICHOLLS: Thank you.
11 JUDGE AGIUS: Thank you.
12 Now, just to make you feel more comfortable, Mr. Ostojic, you have
13 the floor.
14 MR. OSTOJIC: Thank you, Mr. President.
15 Yesterday, my learned friend Madam Nikolic addressed you with
16 respect to the 92 quater motion that was filed, and we were seeking an
17 extension of time. We had agreed to a stipulation with the Prosecution
18 and we need your permission. And I perhaps gave the wrong information.
19 Our stipulation, in fact, was for ten days, and we were going to file the
20 response, and we're hoping to get it jointly, the Defence is meeting on
21 this, by the 22nd of February, which is two days as opposed to the 20th,
22 in light of the scheduling of the 98 bis going into the 20th.
23 So just so that the Court is clear on that, with your permission,
24 we'd like to have leave to have an extension to file that respond on the
1 JUDGE AGIUS: All right. Permission granted.
2 MR. OSTOJIC: Thank you.
3 JUDGE AGIUS: Thank you. All right, so ...
4 During the testimony of PW-168, a protected witness, I think it
5 was the Popovic Defence team made use of the statements of three persons.
6 I'm referring to documents 1D383, that being the statement of a certain
7 Nebojsa Jeremic, 1D432, that being the statement of a certain
8 Zoran Jovanovic, and 1D438, that being the statement of a certain
9 Ljubisa Dijolovic [phoen]. These three persons did not testify in these
10 proceedings, in this trial, but their statements, as I said, were used
11 during the cross-examination of the Popovic Defence team. We had MFI'd
12 them at the time and not admitted them, pending our decision as to whether
13 it is appropriate to admit them.
14 We have given this our consideration, and our decision is to admit
15 these three documents under the same terms and for the same reasons as
16 explained in our yesterday's decision re. the Defence motion dealing with
17 the Momir Nikolic statement of facts. So for the same reasons, we -- and
18 under the same terms, we are admitting these three documents.
19 All right. Now, yesterday you will recall that I referred to two
20 pending motions, namely, the one --
21 [Trial Chamber confers]
22 JUDGE AGIUS: I'll return to these two pending motions shortly.
23 Speaking of documents that are still MFI'd and which we would like
24 to regularise, if necessary and if possible, we submitted to you a list,
25 and we are anxious to hear your position.
1 I will start with P2754, which was tendered during the testimony
2 of Witness Milovanovic.
3 Mr. Thayer.
4 MR. THAYER: Good afternoon, Mr. President. Good afternoon, Your
5 Honours. Good afternoon, everyone.
6 JUDGE AGIUS: This is a Main Staff document, not to be confused.
7 MR. THAYER: Yes. Thank you, Mr. President.
8 My understanding is that this was discussed by Mr. Butler, as the
9 Chamber has already pointed out. It was tendered through
10 General Milovanovic's testimony. I understand that there is no objection
11 from the Miletic Defence team. I note that in particular because this is
12 a document bearing General Miletic's name.
13 JUDGE AGIUS: All right. The problem seemed to be at the time
15 MR. THAYER: In my understanding, there's no challenge to the
16 authenticity of the document.
17 JUDGE AGIUS: All right.
18 Does any one of the Defence teams wish to comment?
19 Ms. Fauveau.
20 MS. FAUVEAU: [Interpretation] No, Mr. President. This is just to
21 confirm what my colleague says. Indeed, this document was used with this
22 person, and -- with Mr. Butler, and it was furnished by this person.
23 JUDGE AGIUS: Okay, thank you. So this document is admitted.
24 We come to P2498. Now, this was tendered during the testimony of
25 a protected witness, that was Witness number 49. I won't mention his
1 name. And if we need to mention his name, then we need to go into private
2 session. 2498, this was an UNPROFOR MIMO from David Harland.
3 MR. THAYER: Yes, Mr. President, and if I may, it may save a
4 little bit of time to discuss it in tandem with the next document as well,
6 JUDGE AGIUS: Yes, which is exactly another document from
7 David Harland.
8 MR. THAYER: Yes. The documents, as the e-mail notes, were
9 originally tendered through this witness. What we soon found was that
10 both parties were making liberal use of these reports and updates from
11 Mr. Harland to Mr. Ryan. Subsequently, following the testimony of
12 Mr. Joseph, the Trial Chamber specifically asked that all of the reports
13 be compiled into a packet and tendered. We have done so.
14 Initially at the time, and this was back, I believe, on August
15 27th of 2007, following Mr. Joseph's testimony, I furnished my friend from
16 the Gvero team an initial copy of the packet. That's been augmented by
17 three other reports, one of which is 2499, and we now have a complete
18 packet. It numbers 18 tabs. There were 16 reports plus two others that
19 were related, all authored by Mr. Harland. I have four sets for Your
20 Honours with the Registrar for distribution.
21 I haven't had much of an opportunity to discuss with my colleagues
22 whether there are any objections. There certainly was none back in
23 August. In fact, the one team that was on the record with respect to the
24 Court's indication that it wished to have these compiled was in full
25 agreement. So we're simply complying with the Court's request, and that
1 would apply to both of these documents.
2 JUDGE AGIUS: Thank you.
3 Does any one of the Defence teams wish to comment?
4 Mr. Josse.
5 MR. JOSSE: Well, since we've been referred to specifically there,
6 and for understandable reasons, we do not object to this course of action.
7 We've known about it for some time.
8 JUDGE AGIUS: Yes. And, in fact, I vividly remember I think it
9 was probably yourself expressing a wish to have this compilation because
10 of its eventual utility.
11 MR. JOSSE: Precisely.
12 JUDGE AGIUS: All right.
13 What is not clear in my mind is whether we are going to retain
14 2498 and 2499 or whether this is in substitution of either or both of
16 [Trial Chamber confers]
17 JUDGE AGIUS: Is this a new document?
18 MR. THAYER: Mr. President, if I may have a moment to consult with
19 our technical expert on this.
20 Mr. President, Ms. Stewart advises me that we can put in this
21 entire packet as one document.
22 JUDGE AGIUS: All right.
23 MR. THAYER: The index does note the documents that have separate
24 65 ter numbers, but we can put the entire packet, and that will be 65 ter
1 JUDGE AGIUS: Any objection? No. We hear no objection.
2 One question again, Mr. Thayer -- yes, Mr. Josse, sorry.
3 MR. JOSSE: After the question, Your Honour. It's on a slightly
4 different but related subject.
5 JUDGE AGIUS: Okay. One question, Mr. Thayer. I notice that in
6 this document, one of the other two documents, 2499, is included, but I
7 don't see 2498, although on the second page I do see 2948. What I want to
8 clarify is to make sure that 2948 has not been mistaken for 2498, and if
9 it's not, whether that means that 2498 needs to be dealt with separately,
10 albeit within the same context of the discussion.
11 Did I make myself clear?
12 MR. THAYER: You did, Mr. President. I'm just cross-checking with
13 the hard copy as I speak.
14 Mr. President, you're correct, that is a -- no, I stand -- let me
15 withdraw that.
16 Tab number 13 should be listed as 2498, and the tab number -- or
17 the 65 ter number tab 15, I believe, is correct, 2948. We were just
18 missing 2498.
19 JUDGE AGIUS: Okay. So that simplifies the matter. 2498 and 2499
20 that were tendered separately during the testimony of Witness number 49
21 are admitted, and similarly we are admitting this new document, 3251,
22 which is a compilation of the various David Harland memoranda.
23 Okay, Mr. Josse.
24 MR. JOSSE: Could we go into private session for a moment, please.
25 JUDGE AGIUS: Let's go into private session for a short while,
2 [Private session]
7 [Open session]
8 JUDGE AGIUS: We are in open session.
9 Always -- in relation to the same witness, we have got 2503. Now,
10 2503 was the Podrinje Brigade combat report.
11 MR. THAYER: Yes, Mr. President.
12 With respect to this document, I'll take you just through a brief
13 history of it. It was used on redirect with Witness 49. It was objected
14 to at the time the Prosecution tendered it. I think the idea was to MFI
15 it or -- MFI it until another witness came along. That witness was
16 Mr. Joseph, so it was tendered without objection. For some reason, in the
17 interim it got a different 65 ter number, and I think that's why it still
18 remains on our question mark list. It came in under a different 65 ter
19 number, that is, 2671, again on 27 August 2007, through Mr. Joseph, again
20 without objection. So that, I think, is just off the list for that
22 JUDGE AGIUS: Right. Do we need to admit the same document twice?
23 I don't think so.
24 So unless there is some comment, remark, or objection from any one
25 of the Defence teams, I propose to leave it as it is. All right. We have
1 2671, and that should suffice.
2 Always with the same document, we used 209, which is another
3 Podrinje Brigade combat report. Do you wish to address the Chamber,
4 Mr. Thayer?
5 MR. THAYER: Yes, Mr. President.
6 With respect to this document, it was used with Witness 49 on his
7 redirect examination, specifically on the issue of whether the VRS had
8 adhered to various promises that were made in prior agreements. That was
9 an issue pressed on cross-examination. This document was then shown to
10 the witness on the Prosecution theory that it might elicit his comment or
11 elucidation as to whether that, in fact, was the case.
12 At the time, the Trial Chamber wanted to MFI this document,
13 pending use with another witness. This did not become used through
14 another witness. However, I think that the -- that the totality of the
15 evidence that has come in through other witnesses so far, consistent with
16 the Prosecution's theory of the case, warrants the admission of this
17 document, which is probative and relevant of a couple of issues that are
18 very much alive in the case. The first is the nature of this mop-up
19 operation after the transportation of the civilian population from Zepa.
20 It is consistent with the charged events or the named events in the
21 indictment, namely, Nezuk and Snagovo, where what we had was a pattern of
22 systematic, on-the-spot executions of groups of prisoners who were found
23 as this mop-up operation continued. This is perfectly consistent --
24 JUDGE AGIUS: One moment.
25 Yes, Madame Fauveau.
1 MS. FAUVEAU: [Interpretation] I object to what the Prosecutor has
2 said. The document refers to the events in Zepa, but has nothing to do
3 with Snagovo and Zvornik. So I would like the Prosecutor to limit himself
4 to what is said in the document.
5 JUDGE AGIUS: Yes. Thank you, Madame Fauveau. We don't have the
6 document in front of us at the moment. I have got notes on it. But what's
7 your position on this objection?
8 MR. THAYER: My position remains, Mr. President, that this
9 document is entirely consistent with what the Prosecution has alleged in
10 connection with the mop-up operation after the Srebrenica operation. And
11 that goes specifically to the reasonableness of fear that the male
12 population of Zepa had at the time that they were faced with the decision
13 of whether to stay or whether to flee. Males of all ages were faced with
15 You heard a lot of testimony about what the men in Zepa knew about
16 what had happened in Srebrenica, when they knew about it, and how that
17 information impacted on their decision. What this document shows, and
18 this is not just idle conversation by a VRS officer, this is a daily
19 combat report from a commander, Lieutenant Colonel Rajko Kusic, the 1st
20 Podrinje Light Infantry Brigade, to the Command of the Drina Corps,
21 describing using ethnically-derogatory terminology, referring to these
22 people who were killed as "balijas," it describes basically executing an
23 unarmed, starving individual in the Zepa area.
24 JUDGE AGIUS: Yes, Madame Fauveau.
25 MS. FAUVEAU: [Interpretation] If the Prosecutor really wants to
1 keep this argument, he has to keep to the text. There is -- you don't
2 have the word "not armed," so could he read the document as is, because
3 there's a risk of not presenting it properly.
4 JUDGE AGIUS: Thank you, Madame Fauveau.
5 Mr. Thayer, let me put a very blunt question to you. Did you have
6 advanced notice by any of the Defence teams that they were objecting --
7 they're going to object to the admission of this document?
8 MR. THAYER: Beyond the --
9 JUDGE AGIUS: Today, I mean, or yesterday or today?
10 MR. THAYER: Not today.
11 JUDGE AGIUS: So why surround yourself or build around yourself a
13 MR. THAYER: Mr. President, precisely because I'm being asked the
14 basis for which this should be admitted, and I'm offering that to the
16 JUDGE AGIUS: But if you had no notice of a pending objection, why
17 go into details, which might trigger an objection?
18 MR. THAYER: Mr. President, in answer to my friend's question, I'd
19 be pleased to read the language that I'm being accused of leaving out, and
20 that is specifically:
21 "The same day, in the vicinity of Luca, an unarmed Ustasha, born
22 in Srebrenica, 24 years old, was liquidated. Before he died, he said that
23 he fell behind the others and he was looking for food."
24 JUDGE AGIUS: Yes.
25 [Trial Chamber confers]
1 MS. FAUVEAU: [Interpretation] There seems also to be a translation
2 problem. This is why I object to this document, because the translation
3 does not correspond to the official text, the B/C/S text.
4 JUDGE AGIUS: Yes. Any further comments, any further objections?
5 Mr. Josse.
6 MR. JOSSE: Well, I come here to argue this procedurally, not
8 My learned friend's interesting and very emotive address relates
9 to the substance in his assertion that this document is relevant. I
10 suspect that could be said of a great number of documents which are not in
11 evidence. The Prosecution and, indeed, the Defence could create
12 arguments, true or otherwise, as to why they support one or other side's
13 case. I thought that we were here to examine procedural matters.
14 JUDGE AGIUS: Admissibility, and that's it.
15 MR. JOSSE: What had happened is what Mr. Thayer has rightly
16 described, which was it wasn't admitted at that point because it was going
17 to be put to another witness.
18 JUDGE AGIUS: Yes.
19 MR. JOSSE: It hasn't been put to another witness. The Trial
20 Chamber now needs to decide whether it should be admitted. In effect,
21 what he's saying is it again should join the motion, I suppose, in
22 relation to documents coming from the Bar table, because that's really
23 what he's doing, and he's getting a first shot in and making a nice
24 rather emotive speech which understandably is upsetting my learned,
25 Madame Fauveau, who's objection I agree with wholeheartedly, and stirring
1 up a hornets' nest, when it's purely a procedural issue in our submission.
2 JUDGE AGIUS: The thing is, Mr. Josse, I don't quite read you,
3 when you say it could go with the rest, because it was used with one
4 witness, and it was MFI'd precisely because there was a suggestion at the
5 time, an objection at the time, that that particular witness knew nothing
6 about the document.
7 MR. JOSSE: Yes.
8 JUDGE AGIUS: The difference between this one and the previous one
9 is that the previous one was used with another witness, while this one
10 wasn't, but it was still used with this witness. My understanding of
11 what's to come, the pleasures yet to come, is that they have not been used
12 with any witness.
13 MR. JOSSE: That's right. To encapsulate, in our submission, that
14 is, on behalf of General Gvero, the submission is that it was MFI'd at the
15 time on the basis that it had not been proved sufficiently relevant to be
16 admitted at that juncture, that it would be shown to a subsequent witness,
17 and at that juncture might be admitted into evidence. Procedurally, that
18 hasn't happened. In our submission, it shouldn't be admitted. My
19 objection is as limited as that, technical I accept.
20 JUDGE AGIUS: My information is because that day I was sick
21 eventually and I went home, and that's where the matter ended.
22 There were two objections at the time. One was that this came on
23 you as a surprise and you were not prepared for cross-examining the
24 witness on it, and, do you remember, this was used on redirect and you had
25 no advanced notice of it, and, second, that the witness knew nothing about
1 this document and they should be used with the subsequent witness. That's
2 what I have on record.
3 MR. JOSSE: Your Honour, that's right. My objection was at 9888
4 of the transcript, and again speaking for our team, if the Trial Chamber
5 wanted to decide the issue based on the arguments at that juncture, then
6 we have no difficulty. But we do have a great deal of difficulty the way
7 Mr. Thayer is approaching the matter today.
8 JUDGE AGIUS: Yes, thank you.
9 Yes, Mr. Meek.
10 MR. MEEK: Just shortly, Your Honour, the Beara Defence team would
11 join with Mr. Josse and point out that there's also a difficulty, we
12 believe, in the representations made at the time by the Prosecutor,
13 that, "We will put it to another witness," and they haven't done it.
14 JUDGE AGIUS: That happens, and we have -- we all have experience
15 of trial -- trial experience, and we know why it happens.
16 So, yes, Mr. Thayer, you have the last word.
17 MR. THAYER: Mr. President, I don't think I have anything further
18 to add to what I've already said. I'm just trying to address this issue
19 in the most efficient manner I thought it presented itself to me, which is
20 to move it in now.
21 JUDGE AGIUS: Yes, thank you.
22 [Trial Chamber confers]
23 JUDGE AGIUS: Mr. Josse, Mr. Thayer, Ms. Fauveau, especially the
24 three of you, because you are the ones who contributed to this very useful
25 debate, we agree with most of what you said, Mr. Josse, and also with what
1 you said, Madame Fauveau, that, strictly speaking, the debate should have
2 been limited to what is procedurally required to be proven by the
3 Prosecution for the purpose of admissibility.
4 Now, as we see it, it's as follows: From an examination of the
5 records that we have, and we stand to be corrected if it's not so, but it
6 doesn't appear to us that at any time the provenance or the authenticity
7 of this document was challenged, which would leave us the task of
8 examining whether, for the purpose of admissibility under Rule 89, the
9 Prosecution has proven relevance and probative value.
10 The question that -- it looks from the records that supposedly
11 this document was to be used or the preference shown was that it would be
12 used with some other witness, of course carries its own weight, but that's
13 not for the purpose of admissibility. We don't believe that the fact that
14 a witness has not been used -- a document has not been used with a witness
15 or with more than one witness disqualifies that document from being
17 We are satisfied that, overall, both the relevance and the
18 probative value of this document has been proven, so it is being admitted
19 with the caveats that I mentioned before. So that disposes of that one.
20 108. This was used with Witness Trivic, and it's a Drina Corps
21 Command order.
22 MR. THAYER: That's correct, Mr. President, and we are in exactly
23 the same situation with this document, I think, as we were with the former
25 JUDGE AGIUS: Yes.
1 MR. THAYER: Again, this was used on redirect with Colonel Trivic
2 based upon the Prosecution's belief that, on cross-examination, the
3 related issues of whether the Krivaja-95 attack was something that had
4 been planned substantially ahead of time or which was something that was
5 more of an ad hoc plan, and also tied to the treatment and planned
6 treatment of UN personnel by the VRS, there was cross-examination
7 throughout the trial not only of Colonel Trivic but of other witnesses
8 where various documents were shown by my friends to witnesses,
9 highlighting language to the effect of, "We will treat UNPROFOR properly,
10 correctly. They are not our enemy. We will not attack UNPROFOR," and so
12 Now, given the discussion we just had, I'll leave it there. There
13 was no -- there was no further witness who was examined with this --
14 JUDGE AGIUS: We know that.
15 MR. THAYER: -- With this document, which was again used with
16 Colonel Trivic to address those issues of evidence to the contrary.
17 JUDGE AGIUS: Okay. Any objections?
18 Mr. Josse.
19 MR. JOSSE: Well, Your Honour, without wanting to go behind the
20 previous decision, perhaps the Defence are on slightly stronger ground
22 At page 12135 of the transcript, having heard our objections, Your
23 Honour, the learned Presiding Judge, said this:
24 "So our decision on 65 ter number 108 is since it hasn't really
25 been used with Witness 109, Mirko Trivic, it will not be admitted now. It
1 will remain marked for identification until used with some other witness.
2 If not, it will remain marked for identification and then it will
3 disappear from the list."
4 In our submission, the Court should stand by that decision made at
5 that time.
6 JUDGE AGIUS: Okay. With the caveat -- I think you've clarified
7 part of the issue. With the caveat that contrary to the previous one,
8 since it was not used with that witness and it was not used with any other
9 witness, it can come in or the Prosecution can seek to bring it in
10 together with the other documents that they are apparently going to offer
11 from the Bar table, because the same argument you mentioned before applies
12 mutatis mutandis for this one.
13 MR. JOSSE: Of course I accept that, and we all, all seven Defence
14 teams, are going to need to address fully this important development.
15 JUDGE AGIUS: Definitely, definitely.
16 [Trial Chamber confers]
17 JUDGE AGIUS: So there is no P0108 for us to consider at the
18 present moment, in conformity or pursuant to our ruling that Mr. Josse has
19 referred to. Do you wish to have it included in the list of documents
20 that you intend to submit, you're free to do so, and then of course
21 without prejudice to what happens after.
22 345. Now we're coming to Witness Barr, and 345 is a
23 Zvornik Brigade report.
24 MR. THAYER: Yes, Mr. President. This report to the Bijeljina
25 military prosecutor was in fact admitted under a different 65 ter number,
1 and that came in as P00386 through the testimony of Nebojsa Jeremic. I'm
2 afraid I don't have his witness number off the top of my head. It may
3 have been 135 -- 137, I'm informed, Mr. President.
4 JUDGE AGIUS: Mr. Registrar, check whether he was a protected
5 witness or not.
6 MR. THAYER: He was not, Mr. President. He testified in open
8 JUDGE AGIUS: Okay.
9 MR. THAYER: And the date of that admission was 25 April 2007.
10 JUDGE AGIUS: Do you agree to that, Mr. Ostojic, because you were
11 the one mostly involved in the admissibility of this document.
12 MR. OSTOJIC: We do, Your Honour.
13 JUDGE AGIUS: Okay, thank you.
14 So there is no point in discussing it any further, the admittance
15 of -- admission of 345, because it has been admitted under P386.
16 Okay. We also had document 935, P935, which is the IKM logbook.
17 MR. THAYER: Again, Mr. President, that was admitted under a
18 different 65 ter number, P00347, through Mihaljo Galic on 27 April 2007.
19 JUDGE AGIUS: And, again, do you stand by that, Mr. Ostojic? I'm
20 asking Mr. Ostojic, it's because he was the one who objected. If anyone
21 else wishes to address the Chamber, please identify yourself.
22 Mr. Ostojic.
23 MR. OSTOJIC: Thank you, Mr. President. Yes, we do.
24 JUDGE AGIUS: Okay, thank you. So that 3935 we don't need to
25 discuss any further, because that document has already been admitted under
2 MR. THAYER: Mr. President, for the record, that was Witness 118.
3 JUDGE AGIUS: 118, okay, thank you.
4 And finally we come to P1936, which was used with Witness
5 Stanojevic, Dobrisav Stanojevic, and this a compilation of photographs and
6 identification of Bosnian Serbs.
7 MR. THAYER: Mr. President, during the course of the trial there
8 was various references made to this video stills book, which is P01936. We
9 showed various witnesses pages out of this book, sometimes referring to
10 the chapter or page number of this original version. What we subsequently
11 did was create an updated version, in some cases based on trial testimony,
12 in some cases based on other investigation that had been conducted, but it
13 has been updated. Copies of the updated book were distributed sometime, I
14 think, in November to our friends. As I understand it, there is no
15 objection to the new-and-improved version.
16 What we would ask is that we retain both copies in the system,
17 since on occasion there were references throughout the testimony to the
18 old version. So that the record remains intelligible, we'd ask that we
19 retain 1936 and give the new version the number P001937. And the new
20 version, I would respectfully request, be placed under seal, since some of
21 the trial witnesses who were referred to as making these identifications
22 were protected witnesses, and we've used their full names so the various
23 parties don't have to flip back to the witness list. They can just see
24 who it was.
25 JUDGE AGIUS: Their name appears on this new document?
1 MR. THAYER: Yes, Mr. President.
2 JUDGE AGIUS: All right.
3 Ms. Stewart, in particular, can you check for us that there isn't
4 already another document which bears the number 1937.
5 MR. THAYER: We actually -- we picked that up, Mr. President.
6 That -- that was just a doubling of the same exhibits. So what we're
7 doing is just giving this new document the same number that was there.
8 We'll just change the ERNs that are in the system in e-court.
9 What happened in e-court was for some reason the exhibit was
10 entered twice.
11 JUDGE AGIUS: Oh, I see.
12 MR. THAYER: So now we'll just remove the ERNs, and 1937 will be
13 the new version.
14 JUDGE AGIUS: Any objection? So no objection to P1936 and no
15 objection to P1937. Instead of one, we now have two, 1936 being the old
16 version, 1937 being the revised one, and P1937 will remain under seal.
18 MR. THAYER: Mr. President, I have two other pieces of evidence to
19 discuss with the Chamber. One is what we have referred to as the Muslim
20 ID book. This is another collection of still photographs from various
21 videos of Bosnian Muslim men who subsequently disappeared, but who have
22 been identified. Copies of this -- and identified as missing and some
23 that haven't been ever identified or located, or some that survived.
24 Copies of this have been distributed, I think, pretty much at the same
25 time as the other video stills book that we just discussed. As I
1 understand it, there's no objection from my friends. This also eliminated
2 the necessity to have an investigator, Ms. Gallagher, testify as to the
3 creation of this document. And we would offer that as 1938. It's
4 uploaded in e-court already.
5 JUDGE AGIUS: Any remarks, objections, from any of the Defence
6 teams? We hear none, so 1938 is admitted.
8 MR. THAYER: One last item that I'm aware of, and that is the --
9 what we have been referring to as the duty officer notebook, volumes 1 and
10 2; that is, 65 ter 377.
11 377, Mr. President, I believe is the first volume --
12 JUDGE AGIUS: One moment. I don't know why you are raising 377,
13 because that formed part of the Butler list yesterday. It was not one of
14 the documents that were objected to, and we have already admitted it.
15 MR. THAYER: Then I stand corrected, and nothing further to say.
16 JUDGE AGIUS: And the sequel to it is that there were bits and
17 pieces of that document, of 377, that became other documents that were
18 used with several other witnesses, and as a result of that, as a result of
19 377 being admitted yesterday, all the others have automatically been
20 admitted. I can give you the details of those, if you want, but --
21 MR. THAYER: I'll pass. Thank you, Mr. President.
22 And we do have a full translation of that document, as well as the
23 other volume, and I've notified Mr. Haynes, in particular, some time ago
24 about the completion of that project.
25 JUDGE AGIUS: Yes, Mr. Haynes.
1 MR. HAYNES: If the position is that the original P377, which is
2 not the whole of the first Zvornik Brigade duty operations officer's
3 notebook but merely a portion of it from, I think, about the 8th to the
4 20th of July - I might be wrong about those dates - has gone in as P377,
5 together with odd bits and bobs, then that, in my submission, is a wholly
6 unsatisfactory position, and what ought to be done is the translation of
7 the whole book should supplant it as P377, rather than have one portion of
8 the book and lots of little bits and bobs.
9 JUDGE AGIUS: If you are in agreement -- if Mr. Thayer is in
10 agreement to that, we can stop the discussion here and proceed
12 MR. HAYNES: Yes, and I thank Mr. Thayer for his tireless efforts
13 to get both of these volumes translated in what was a very short period of
14 time. It's a difficult book to translate because it's all in manuscript.
15 JUDGE AGIUS: Yes.
16 Yes, Mr. Thayer. Do you agree with Mr. Haynes' submission?
17 MR. THAYER: I do, Mr. President. We do have full translations of
18 both volumes.
19 JUDGE AGIUS: Okay. So what I propose to do is what we have
20 always done. We don't prefer substitution of one with another. We would
21 rather have what we have used so far, and we keep it 377, and the one
22 which would, for all intents and purposes, be considered the one that you
23 will be referring to as 377A or B or whatever number you find for it. The
24 reason for this is that as was hinted at earlier on, witnesses may have
25 already made reference to 377, particularly to particular pages, and so
1 for reference purposes we better keep it there. And then of course we
2 will use the entire one for the rest of the exercise, if that is agreeable
3 to all of you.
4 Okay. Mr. Haynes.
5 MR. HAYNES: Your Honour, yes.
6 JUDGE AGIUS: Okay. Mr. Thayer. Yes.
7 So you will follow this in due course and liaise with Mr. or Madam
8 Registrar, as the case may be.
9 MR. THAYER: We will, Mr. President, and we also have -- just back
10 to the video stills book, we have copies for the Chamber in production,
11 and we'll deliver those when they're ready.
12 JUDGE AGIUS: Okay.
13 [Trial Chamber confers]
14 JUDGE AGIUS: Mr. Josse, I'm addressing you not because I want to
15 single you out, but because you have spoken on the matter already, and
16 Mr. McCloskey. It's break time, but if you tell us that in relation to
17 the pending motion on the documents to be offered from the Bar table, that
18 there is an agreement that there will be no submissions today but that you
19 will take your time to -- then our proposal, our suggestion, was if the
20 rest of the staff agrees, that we proceed. I don't think we have got much
21 more on the agenda today, unless we are missing something that we don't
22 know, and finish.
23 MR. JOSSE: Well, I'm not sure I can speak on behalf of all my
24 learned friends who are defending.
25 Your Honour, the motion has now been filed --
1 JUDGE AGIUS: No, but we haven't seen it as yet.
2 MR. JOSSE: Nor have we, but I can see it has now been filed.
3 Realistically, we are not going to be in a position to address it today.
4 I am thinking out loud, let me emphasise whether the Chamber needs to give
5 some direction as to the respond, and in particular that -- well, they
6 presumably will have no bearing on the 98 bis ruling. The documents
7 aren't in evidence at the moment. The 98 bis is due to take place --
8 begin in a week's time, and I suspect most of us would want our 14 days to
10 I emphasise I'm thinking aloud. If any of my colleagues disagree,
11 then no doubt they'll say, but that's what I'd ask for, our full 14 days
12 to respond.
13 JUDGE AGIUS: Okay. Let's hear Mr. McCloskey.
14 MR. McCLOSKEY: Yes, Mr. President.
15 The Bar table motion has 46 documents total. Forty-four of those
16 documents were in our intercept support motion and had already been
17 determined by the Court to be relevant and probative on 11 January. So
18 this isn't a real big deal, and I -- once counsel's had a chance to see
19 the documents, they may or may not agree with me, but I don't think it's
20 something that we need to spend court time to argue over. I'm willing to
21 do it, of course, but that's -- it's not that big a deal.
22 MR. HAYNES: I'm going to answer the question that you put.
23 I'm not minded to make a submission about that motion today.
24 JUDGE AGIUS: I think you haven't even had time to put it in your
25 mouth, let alone digest it.
1 MR. HAYNES: We haven't even been able to find some of the
2 documents, as yet, but that may be our failing.
3 JUDGE AGIUS: Okay. Madame Fauveau.
4 MS. FAUVEAU: [Interpretation] I fully support my colleague
5 Mr. Haynes. I believe that this motion is being filed much too late and
6 does very much prejudice the Defence teams.
7 JUDGE AGIUS: Yes, Mr. Nikolic -- Ms. Nikolic, sorry.
8 MS. NIKOLIC: [Interpretation] Thank you, Your Honour.
9 I wholly endorse what my colleagues have submitted, not to repeat
10 what they said.
11 MR. MEEK: I join that motion.
12 JUDGE AGIUS: Thank you, Mr. Meek.
13 You didn't address the question as to whether you would be able to
14 live with the suggestion of Mr. Josse, that they will -- pending the
15 determination of -- pending the resolution of this issue, that they will
16 not form part of the documents to be taken into account for the purpose of
17 Rule 98 bis.
18 MR. McCLOSKEY: I have no problem with that. This doesn't need to
19 interfere with the 98 bis process.
20 JUDGE AGIUS: Exactly.
21 MR. McCLOSKEY: All these documents have 65 ter numbers. As I
22 say, I don't think it will amount -- this could be dealt with by paper, as
23 far as I'm concerned. And as I say, that these are documents everyone's
24 been on notice. We've litigated over all of them but two, so this isn't a
25 situation where prejudice is involved in any way, shape, or form.
1 [Trial Chamber confers]
2 JUDGE AGIUS: All right. That being said, do we have the go-ahead
3 to sit for another maybe five, ten minutes, unless you have other things
4 you would like to raise? We have got just two matters that we would like
5 to dispose of, and then we can adjourn.
6 MR. McCLOSKEY: I've got about a minute or a minute and a half,
7 but that's about it.
8 JUDGE AGIUS: A minute is not going to change anything.
9 Now ...
10 [Trial Chamber confers]
11 JUDGE AGIUS: So we have now been formally informed that there is
12 an urgent motion or a motion from -- not an urgent motion, a motion by the
13 Prosecution, from the Prosecution, to seek admission of a number of
14 documents from the Bar tables, as the saying goes. Our decision is that
15 we will give this motion the chance to take its normal course. You will
16 have the time limit set by the Rules to file your respective or joint
17 responses, a consequence being that for the purpose of Rule 98 bis, these
18 documents do not exist.
19 Okay, that's number 1.
20 Now, hope springs eternal, and yesterday -- also because we are
21 optimistic by nature, the four of us. We sincerely believed that we could
22 cut down -- shorten the time limit for Mr. McCloskey to respond to the
23 Butler motion, and we also gave an indication that today we'd make an
24 announcement on the Rupert Smith matter. It turned out to be somewhat
25 more laborious and more complicated than we first thought.
1 We have been actively discussing and discussing. I think we would
2 be misleading you if we kept our promise and make you hope for a decision
3 before you start with the Rule 98 bis submissions. We are sorry, but, I
4 mean, we had expected the sittings to finish last week. We got one thing
5 over the other, more witnesses, more sittings and more motions, and we
6 found ourselves in a position today we realise we will not be able to make
7 it. So bottom line is that for the purpose of Rule 98 bis, you would have
8 to live with the consequence of our decision not to decide these two
9 motions in time before the 14th of this month, and therefore, for all
10 intents and purposes, you need to take into account, for the purposes of
11 your submissions, the entirety of the testimony and reports of both
12 Mr. Smith and Mr. -- General Smith and Mr. Butler. So that is the
14 We have tried, but there are limits.
15 One moment. I need to discuss something else.
16 [Trial Chamber confers]
17 JUDGE AGIUS: We do not have any further matters to raise. If you
18 have, please, let's do that as shortly as possible.
19 Mr. McCloskey.
20 MR. McCLOSKEY: Yes, Mr. President.
21 Just a couple of things.
22 You have accepted Mr. Butler's command reports into evidence. I
23 think I mentioned, we do have CDs of those command reports where you can,
24 when reading them, click on the cite and the document supporting comes up.
25 That can't be done in e-court. We have those CDs, if the Court's
1 interested. They also include the narratives, which are not in evidence
2 yet, but of course you can ignore those.
3 I also, I think as I mentioned, I have large copies of those
4 smaller maps, if anyone wants them.
5 I also -- there are two exhibits, two aerial images, 3009, which
6 is an aerial image of the Branjevo Farm, which I briefly mentioned
7 yesterday; and 1801, which is the Branjevo Farm on 27 September 1995, both
8 of which have been the subject of some discussion in this case. I have
9 what are hard copies of those photographs which are clearer than the
10 electronic versions that are in e-court. I would like to provide those
11 hard copies to the Court so that you have them to review, should you wish
13 JUDGE AGIUS: Have you provided them to the Defence teams?
14 MR. McCLOSKEY: Yes, for many months now.
15 JUDGE AGIUS: All right.
16 Yes, Mr. Haynes.
17 MR. HAYNES: The first time I saw these aerial images was during
18 my cross-examination of Dean Manning just before Christmas, so if
19 that's "many months," then so be it. They're very significant.
20 You might remember my cross-examination of Dean Manning about what
21 the aerial images of Branjevo Farm apparently showed. I asked him to look
22 at them and see whether he could compare certain things on photographs
23 taken apparently on the 17th, the 21st and, I think, the 27th of July of
24 1995. During a break, a photograph was retrieved from the offices of the
25 Office of the Prosecutor and was shown to me, and it seemed to me to be a
1 very significant photograph indeed for one purpose for the Prosecution,
2 but actually for a very good purpose for the Defence. It seemed to me to
3 advance a point that Mr. Ostojic has been making forcefully throughout
4 this trial about how certain things written in white boxes appeared on
5 these photographs, because it compared directly to one that was then in
6 evidence, but it had rather less writing on it. And when I pointed this
7 out to Mr. McCloskey, the Prosecution took the tactical decision with
8 Dean Manning, in re-examination, not to use this aerial image, doubtless
9 aware of the fact that I might have applied for leave to re-cross-examine
10 him to highlight the point that Mr. Ostojic has been trying to make for
11 all these months.
12 It seems to me it would be completely wrong, the Prosecution
13 having decided not to put this photograph in through a witness several
14 months ago, to borrow their phrase, to produce it from the Bar table now,
15 so I do object. If there is a sensible course to this, it would be that
16 they add a supplement to their current motion, and I will put these points
17 in writing.
18 When I asked Mr. McCloskey about this today, his explanation for
19 not producing it through Dean Manning was that it was too late in the day.
20 Well, today is even later.
21 JUDGE AGIUS: Yes, thank you.
22 Do you wish to comment, Mr. McCloskey?
23 MR. McCLOSKEY: Yes, Mr. President.
24 Had I offered to put that document in, having given them one
25 hour's notice, the cry would have been heard around the world of
1 prejudice, and that is why I didn't --
2 MR. HAYNES: No, it wouldn't. I was ready.
3 MR. McCLOSKEY: They're tougher in England, but there would have
4 been other objections, and that's why I gave them plenty of time to digest
5 it. This issue has been churned and churned by Mr. Ostojic. So these
6 documents are fundamentally already in evidence. The versions of these
7 things, the electronic version that they've had for a while, is very
8 similar to the hard-copy versions. These hard-copy versions are a little
9 clearer. In my view, you can clearly see the back-loader -- the backhoe
10 and loader in them, and I think you'll agree with me.
11 JUDGE AGIUS: Let's not go into the details. Leave it as a
12 procedural matter.
13 I think if you give me a moment to consult with my colleagues ...
14 [Trial Chamber confers]
15 JUDGE AGIUS: Mr. McCloskey, sorry to cut you short and in an
16 abrupt manner, but it will also dispose of the matter.
17 We have discussed it. We're on the same wavelength while you were
18 both contributing to the discussion, to the debate. The situation being
19 what it is, in other words, the diametrically-opposed positions that you
20 have taken, for the moment we don't need these documents, we don't want
21 them. If they are made use of later on in the day during this trial, we
22 may reconsider our position.
23 MR. McCLOSKEY: Thank you, Mr. President.
24 JUDGE AGIUS: Thank you.
25 Anything else?
1 MR. McCLOSKEY: One other request. I think I may have made this
2 before, but as we are approaching the 98 bis stage, any particular areas
3 that you would like us to focus on would, of course, be appreciated. Of
4 course, we also appreciate being left in the dark, and that's not a
5 problem. But if there are any particular areas, we will be ready to
6 respond to those.
7 And I would also ask my colleagues, as I'm sure none of them will,
8 but anyone that is planning waiving 98 bis, the sooner we know that, that
9 would also be helpful.
10 JUDGE AGIUS: Yes, don't rush.
11 I don't think we have anything to tell you. You are all aware of
12 what Rule 98 bis is all about. It's a motion to acquit. Admittedly, it
13 could also be triggered ex officio, but it is basically a motion to
14 acquit. The standards have been set by our case law, and I don't think we
15 need to elaborate on that. You need to stick to what is required by the
16 Rule and by the jurisprudence, and not treat the procedure as if we have
17 come to the end of the case and discuss the merits and ultimate acquittal.
18 So I think it's clear enough, and we are confident that you understand
19 exactly what the whole procedure is all about, while it's still there in
20 our Rules.
21 All right. And, of course, Defence go first.
22 MR. McCLOSKEY: In that event, Mr. President, I think the
23 Prosecution can rest.
24 JUDGE AGIUS: Thank you.
25 So we've come to the end of the first leg of a long journey.
1 Before we adjourn until Thursday of next week for the first submissions,
2 Rule 98 bis submissions, I wish to thank you for all the work that you
3 have put during the past months in the case, in the interests of your
4 respective case, in the case of the Prosecution, and in your case in the
5 interest of your clients; but also in the interests of justice. So the
6 first hurdle is over, we now need to overcome the second one, the Rule 98
7 bis decision; and then we embark on the next leg, which will also be a
8 long one and as complicated as the one we have just finished.
9 So I wish you all a nice evening and a nice weekend, and I'm sure
10 you are not going to enjoy yourself this weekend and that you will be
11 engaged in preparing for your contributions next week. Thank you.
12 And one moment. I also wish to thank, as usual, the staff. You're
13 always so prepared and so forthcoming to help the Tribunal in trying to
14 economize on time. I don't know how to show my appreciation, except to
15 communicate it formally to the Registrar and to your immediate superiors.
16 Infallibly during these months, you've been extremely, extremely
17 cooperative. Thank you.
18 --- Whereupon the hearing adjourned at 4.08 p.m.,
19 to be reconvened on Thursday, the 14th day of
20 February, 2008, at 9.00 a.m.