Case No.: IT-02-54-T


Judge Richard May, Presiding
Judge Patrick Robinson
Judge O-Gon Kwon

Mr. Hans Holthuis

Decision of:
12 February 2004







The Office of the Prosecutor

Ms. Carla Del Ponte
Mr. Geoffrey Nice
Mr. Dermot Groome

The Accused

Mr. Slobodan Milosevic

Amici Curiae

Mr. Steven Kay, QC
Mr. Branislav Tapuskovic
Prof. Timothy L.H. McCormack


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

BEING SEISED of a "Prosecution Motion for the Admission of Witness Statement of Investigator Bernard O’Donnell in Lieu of Viva Voce Testimony Pursuant to Rules 54 and
92 bis", filed by the Prosecution on 3 February 2004 ("Motion"), requesting that the Trial Chamber admit into evidence the written statement and related exhibits of Bernard O’Donnell ("witness") without cross-examination pursuant to Rule 92bis(A) or, if the Trial Chamber does not grant the Motion or decides that cross examination is necessary, the Prosecution will seek to tender the statement pursuant to Rule 89(F), and arguing with respect to the documents that

  1. The majority of the documents do not go to the acts and conduct of the Accused, and the witness makes no observations on any acts and conduct of the Accused that may be referred to in the documents;

  2. The statement does not contain information that can be described as being proximate to the Accused, but rather relates "to miscellaneous documents that were gathered during the course of the investigation and ‘speak’ for themselves";

  3. The documents are cumulative of other testimony before the Trial Chamber;

  4. None of the factors against admitting evidence in written form set forth in Rule 92 bis are applicable; and

  5. Cross-examination is unnecessary because the witness’s statement is a summary of the contents and general relevance of the documents; the schedule of documents is meant to simply assist the Trial Chamber in its evaluation of the documents,

NOTING the "Amici Curiae Reply to Prosecution Motion for the Admission of Witness Statement of Investigator Bernard O’Donnell in Lieu of Viva Voce Testimony Pursuant to Rules 54 and 92 bis", filed on 9 February 2004 ("Reply"), submitting that it is unfair to the Accused for the Prosecution to tender as evidence documents through a witness who is not able to speak to the issue of how the documents came into the possession of the Prosecution, but nevertheless makes comments on their relevance; if the statement and related materials are admitted, then the witness should be required to attend for cross-examination; and, in relation to the documents themselves the following objections are made:

  1. Some documents relate to the acts and conduct of the Accused, and it is asserted that the Accused had knowledge of the facts in those documents;

  2. Some documents relate to the JNA;

  3. Some documents relate to the Accused being on notice by virtue of having received reports and thus had knowledge of the contents of those documents (and related events);

  4. Some documents relate to the conduct of Serbian forces, and thus the Accused had knowledge or should have had knowledge of the contents of those documents (and related events; and

  5. Some documents relate to events and their foreseeability by the Accused,

NOTING that the Amici Curiae have helpfully set out a schedule of the 75 documents in Annex A to their Reply, and that the Trial Chamber will refer to the Tab number of the documents as set out therein,

CONSIDERING that the proposed witness is not in a position to give relevant evidence concerning the content or authenticity of the documents submitted and that it is not appropriate that the documents be introduced through that witness at all,

CONSIDERING that whilst there is precedent within the International Tribunal, and this Trial Chamber, for documents to be admitted into evidence without the requirement that they be tendered formally through a witness,1 it is essential to allow the opposing party an opportunity to challenge the content of the document, either through cross-examination of a witness, oral argument or in a written brief,2

CONSIDERING that certain of the documents (enumerated as follows) are not appropriate for consideration by the Trial Chamber, either because the document should be tendered through an appropriate witness; it is a media report and therefore inappropriate as evidence; it is a photograph or handwritten note which would require specific authentication to be considered admissible; or, in one instance, it is a document specifically excluded by the Trial Chamber in a prior Order: documents 1, 14, 24, 26, 28, 29, 32, 44, 45, 71 and 72,

PURSUANT TO Rules 54 and 89 (F) and 92 bis of the Rules of Procedure and Evidence of the International Tribunal


  1. The Prosecution application to admit the written statement of the witness pursuant to Rule 92 bis or Rule 89 (F), is denied, and the witness may not be called for the purposes of introducing or authenticating the documents;

  2. Documents 1, 14, 24, 26, 28, 29, 32, 44, 45, 71 and 72 may not be tendered as evidence;

  3. The Prosecution may produce the remaining 64 documents it seeks to admit into evidence along with its analysis and interpretation of the documents, by 27 February 2004;

  4. The Accused and Amici Curiae may file any response to the Prosecution filing referred to in Order (3) above, by 12 March 2004; and

  5. The Trial Chamber will thereafter make a decision whether to admit the documents into evidence.

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

O-Gon Kwon

Dated this twelfth day of February 2004
At The Hague
The Netherlands

[Seal of the Tribunal]

1. See, for example, Prosecutor v. Blaskic, "Judgment", 3 March 2000, para. 35; Prosecutor v. Kordic, "Judgment", 26 February 2001, para.27. For more detailed discussion of this issue, see R. May and M Wierda, "International Criminal Evidence" (2002), pp.245-246.
2. See the confidential "Decision on Prosecution Motion concerning Withdrawal of the Witness [redacted] from the Witness List The Analysis and Interpretation of Supreme Defence Council Material and the Addition of an Analyst to the Witness List", issued by this Trial Chamber in these proceedings on 4 February 2004.