Before:
Judge Jean-Claude Antonetti
Judge Vonimbolana Rasoazanany
Judge Albertus Swart

Registrar:
Mr Hans Holthuis

Decision of:
11 February 2004

The Office of the Prosecutor:

Mr Ekkehard Withopf
Mr Daryl Mundis
Mr Chester Stamp
Ms Tekla Henry-Benjamin

Defence Counsel:

Ms Edina Residovic and Mr Stéphane Bourgon for Enver Hadzihasanovic
Mr Fahrudin Ibrisimovic and Mr Rodney Dixon for Amir Kubura

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

BEING SEISED of the report of the military expert, General Klaus Reinhardt, (“Report”) which was presented by the Office of the Prosecutor (“Prosecution”) pursuant to Rule 94 bis of the Rules of Procedure and Evidence (“Rules”) in its “Motion to Amend its List of Witnesses and Exhibits” dated 8 December 2003 ;¹

NOTING the “Decision on Prosecution Motion to Amend its List of Witnesses and Exhibits” rendered by the Chamber on 23 January 2004, in which the Chamber decided to postpone its decision on the admissibility of the Report until such time as it had received the Defence’s response pursuant to Rule 94 bis of the Rules;

NOTING the confidential “Order on the Exclusion of the Previous Testimony of the Accused” rendered by the Chamber on 21 January 2004, in which the Chamber took note of the Prosecution’s intention to file a new version of General Reinhardt’s Report from which all references to the previous testimony of the accused would be redacted;

NOTING the “Joint Defence Notice Pursuant to Rule 94 bis in Respect of the Expert Report of General (Ret.) Klaus Reinhardt” dated 12 January 2004 (“ Notice”), in which the Defence states that it does not accept General Reinhardt's Report and that it wishes to cross-examine him;²

NOTING the Defence submissions concerning the qualifications of the expert witness and the relevance of parts of his Report, whereby it argued that:

(1) the expert has no authority to draw conclusions about the guilt of the accused,³

(2) the expert does not possess the necessary qualifications to offer a legal opinion on the interpretation of the national legislation of Bosnia and Herzegovina and international humanitarian law,⁴

(3) the expert’s comments upon events in Dusina in respect of Amir Kubura are irrelevant as Amir Kubura is not charged with any incidents related to Dusina,⁵

(4) the witness has no authority to offer an informed opinion on the “Mujahedin” and their alleged relationship with the Army of Bosnia and Herzegovina,⁶

NOTING the Prosecution’s Response to the Notice dated 26 January 2004, in which the Prosecution states that:

(1) the Prosecution concedes that the portions of the Report referring to the guilt of the accused should be redacted from the Report,⁷

(2) the expert is not being called as a legal expert on the legislation of Bosnia and Herzegovina or international humanitarian law and should be allowed to express his opinion based on the provisions of various domestic military regulations,⁸

(3) even though Amir Kubura cannot be held liable for the crimes committed at Dusina, the portion of the Report pertaining thereto is relevant to the duty of a military commander to prevent further crimes,⁹

(4) the issue of the subordination of the “Mujahedin” falls within the expert’s field of expertise;¹⁰

NOTING the complete list of documents supplied to General Reinhardt¹¹ in order for him to carry out his assignment, which list was tendered by the Prosecution on 6 February 2004 at the request of the Chamber;

CONSIDERING that General (Ret.) Klaus Reinhardt was the commander of German forces within IFOR and SFOR, the NATO forces stationed in Bosnia and Herzegovina, that he occupied a command position within UNPROFOR and that, whilst he held this position, he had many discussions with officers in Bosnia and Herzegovina, and that, as a consequence, General Reinhardt may be considered a military expert in view of his qualifications and professional experience;

CONSIDERING that the Chamber takes note of the agreement between the parties to delete all references in the Report to the previous testimony of the accused in the Blaskic case, both in the body of the Report and in the footnotes;¹²

CONSIDERING that an expert witness may not be authorised to offer his opinion on the criminal liability of the accused, a matter which falls within the sole jurisdiction of the Chamber at the close of the trial,¹³ on which point the Prosecution and Defence concur;

CONSIDERING, therefore, that all submissions regarding the (criminal) responsibility of the accused in the Report,¹⁴ including in its title, must be deleted, as the Prosecution concedes in its Response to the Defence Notice;

CONSIDERING that an expert may provide the judges with any information useful to an evaluation of the facts, particularly, for a military expert, as regards the military structures, chain of command and disciplinary procedures of an army, and the military responsibility deriving from such provisions;¹⁵

CONSIDERING that, as the Prosecution observes in its Response, such an expert has the authority to offer his opinion on the relevant legal and military contexts and may provide any information on the instruments that were available to a military commander in Bosnia and Herzegovina;

CONSIDERING that the information provided by General Reinhardt regarding whether Amir Kubura was aware of the alleged crimes committed in Dusina in January 1993 (for which he is not charged),¹⁶ even though he allegedly became commander of the 7th Muslim Mountain Brigade only later, might provide guidance to the Chamber in its assessment of the obligations falling to such a military commander under Article 7(3) of the Statute of the Tribunal ;

CONSIDERING that, relying on his analysis of the documents provided by the Prosecution, the expert may validly present his submissions on the issue of subordination, which naturally falls within the field of expertise of a military expert, and that, in this context, a military expert may express his opinion on matters of law ;

CONSIDERING that General Reinhardt may provide the Chamber with information which might afford it guidance on the issue of whether there was any subordination between the “Mujahedin” and the ABiH and that there is therefore no reason to delete point 4 from the Report as the Defence has requested;

CONSIDERING that, pursuant to Rule 90 of the Rules, the Chamber “shall exercise control over the mode […] of interrogating witnesses and presenting evidence so as to (i) make the interrogation and presentation effective for the ascertainment of the truth; and (ii) avoid needless consumption of time”;

FOR THE FOREGOING REASONS,

PURSUANT to Rules 89, 90 and 94 bis of the Rules,

(1) TAKES NOTE of the agreement between the parties to exclude from the Report any information based on the previous testimony of the accused in the Blaskic case,

(2) TAKES NOTE of the agreement between the parties, in keeping with which General Reinhardt ought not to offer his opinion on the question of the criminal liability of the accused,

(3) ORDERS the Prosecution to ask General Reinhardt to amend his Report in the light of the reasons given in this decision,

(4) TAKES NOTE of the Defence’s wish to cross-examine General Reinhardt,

(5) REQUESTS the Prosecution to call General Reinhardt to testify at the earliest possible opportunity;

(6) INVITES the Prosecution to inform the Chamber and Defence, prior to General Reinhardt’s examination, of the estimated length of time required for the examination-in-chief and of the form it will take, outlining the relevant documents listed in its written submission of 6 February 2004 according to subject and indicating, merely for the sake of guidance, which of them might be tendered in evidence during General Reinhardt’s testimony.

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

Done this eleventh day of February 2004
At The Hague
The Netherlands

___________
Jean-Claude Antonetti
Presiding Judge

[Seal of the Tribunal]