1 Friday, 25th June, 1999
2 (Open session)
3 --- Upon commencing at 9.07 a.m.
4 JUDGE JORDA: Please be seated.
5 Mr. Registrar, have the accused brought in.
6 (The accused entered court)
7 JUDGE JORDA: Good morning to the
8 interpreters, counsel of the Prosecution, the counsel
9 for the Defence, and the accused. We shall continue,
10 without further delay, with the examination,
11 Mr. Registrar, of a whole series of exhibits which have
12 not been admitted.
13 THE REGISTRAR: Yes. They're either exhibits
14 that have not been tendered and some that have not been
15 admitted. Some were pending before the testimony of
16 the accused, and then there are all the exhibits
17 presented since the 17th of February, during the
18 testimony of General Blaskic.
19 Are there any pending since the beginning of
20 the Blaskic trial?
21 THE REGISTRAR: Since the beginning decisions
22 were regularly taken by the Chamber regarding exhibits,
23 and there are only a few, a few rare ones, on which the
24 parties may have to express themselves today.
25 JUDGE JORDA: Perhaps the Prosecutor would
1 like to begin.
2 MR. HARMON: Thank you. Good morning,
3 Mr. President. Good morning, Your Honours. Good
4 morning, counsel. Last night Mr. Kehoe and I reviewed
5 the exhibits. We had conversations with Defence
6 counsel. We have been able to narrow significantly the
7 differences that we may have and there will be only a
8 few items that are --
9 JUDGE JORDA: You would like us to adjourn
10 straightaway perhaps, Mr. Harmon?
11 MR. HARMON: That would be wonderful. I can
12 identify, first, Mr. President, the items that the
13 Prosecutor objects to, and if I give you that list then
14 let me begin and then counsel can identify the list
15 that he has issues about and then we can proceed from
17 The Prosecutor objects to Defence Exhibit 89,
18 92, 119, 120, 127, 128, 129, 197, and 590, and in
19 respect of Defence Exhibit 591, which is a large red
20 binder with numerous tabs, we object to certain items
21 within Defence Exhibit 591. Those are found at tabs
22 36, 37, 38, 176, 177, and 178.
23 In respect of Defence Exhibit 588, we object
24 to certain conclusions found in the index in respect of
25 documents that are found at tab number 26, 27, and 33,
1 although we do not object to the documents themselves.
2 It's our conclusion that the index is not accurate in
3 its conclusions in respect of those documents.
4 So those, Mr. President, represent the sum
5 total of the exhibits to which we object. Thank you.
6 JUDGE JORDA: Mr. Hayman.
7 MR. HAYMAN: Good morning, Mr. President.
8 Good morning, Your Honours. Mr. President, would you
9 like me to respond to this list of objected to Defence
10 Exhibits or simply give you, at this juncture, the list
11 of Prosecution exhibits to which we the Defence object
12 or both?
13 JUDGE JORDA: I think we'll have to do both.
14 The Prosecutor has just given you a list of Defence
15 exhibits to which he is objecting, objecting to their
16 admission, and I think you could do the same. I
17 haven't taken notes, but I think the registrar has, so
18 you could do the same thing, Mr. Hayman. First give us
19 a list of exhibits which will give me an idea of the
20 work ahead and then you yourself can make your
22 Do you have many Prosecution Exhibits that
23 you are objecting to their admission?
24 MR. HAYMAN: Six plus a category of exhibits,
25 Mr. President, so, in effect --
1 JUDGE JORDA: Certain categories. I
2 understand the nuance, but we'll see. So let's hear
3 the first six exhibits you're objecting to.
4 MR. HAYMAN: Prosecutor's Exhibit 41. That's
5 a letter from President Izetbegovic.
6 Prosecutor's Exhibits 154 and 155, which are
7 news articles relating to the testimony, which I
8 believe was in open session, of Mr. Ashdown, and the
9 napkin incident at the Whitehall banquet, if the Court
10 recalls the napkin incident.
11 Prosecutor's Exhibit 443 which was a
12 videotape, and I recall there was a problem with the
13 date. I believe Mr. Kehoe was going to get back to the
14 court as to the date of that tape which may, in fact,
15 be a BBC broadcast.
16 Prosecutor's Exhibit 566, which I understand
17 is to be withdrawn, and I understand Prosecutor's
18 Exhibit 41 is to be withdrawn as well, Mr. President,
19 so that's two which may not bear or need further
21 Prosecutor's Exhibit 666 is the order from
22 January 1993 from Milivoj Petkovic attaching the
23 Vitezovi to Colonel Blaskic. Colonel Blaskic did not
24 recognise or authenticate the document, and the Defence
25 objects to it unless we're told with greater
1 specificity where it came from. At the time it was
2 offered, we were told that it was obtained from the
3 Croat side of the Bosnian-Herzegovinan federation by a
4 Dutch peacekeeper, and we seek further information,
5 Mr. President, concerning whether the -- no arguments.
6 JUDGE JORDA: No, don't argue, please,
7 Mr. Hayman. I don't have the elements, nor do my
8 colleagues, but it's just to have an idea of the
9 exhibits first.
10 MR. HAYMAN: That's fine, Mr. President. Our
11 objection to that is conditional, if you will. If that
12 information is provided to the Court, we wouldn't have
13 an objection to it.
14 Lastly, we have an objection to the various
15 documents that have been produced as a result of
16 searches, search warrants, executed for a reason I can
17 explain or if the Court wishes to hear that now.
18 JUDGE JORDA: Very well. Mr. Registrar,
19 would you like to suggest a method of work for us or
20 shall I do that? What are your feelings? You have
21 experience with such debates. I don't have any
22 particular experience as I come from a slightly
23 different system.
24 Perhaps Judge Rodrigues can help. Perhaps we
25 collect the exhibits and then discuss their weight, but
1 the question of admission first.
2 THE REGISTRAR: I would propose that we
3 review all the exhibits up to the 17th of February,
4 that is, the beginning of General Blaskic's testimony.
5 JUDGE JORDA: Very well then. The first
6 stage, the exhibits as far as the 17th of February, up
7 to the 17th of February. Let us begin with the
8 Prosecutor who objects to Defence Exhibits. The first
9 exhibit please, Mr. Prosecutor. The exhibits up to the
10 17th of February. That is the first stage. I see you
11 have taken a note of them.
12 (Trial Chamber confers with registrar)
13 JUDGE JORDA: Thank you, Mr. Registrar. In
14 that case, we're going to proceed as follows, so that
15 my colleagues and I can do our work properly: For the
16 moment, we're going to discuss the admission of
17 exhibits to which there are objections either by the
18 Prosecutor or the Defence up to the 17th of February,
19 the beginning of the hearing of General Blaskic as a
21 Thanks to the registrar, we will begin with
22 the first exhibit that the Prosecutor objects to, and
23 that appears to be Exhibit 89, D89. For the benefit of
24 my colleagues, which is the one that comes next?
25 THE REGISTRAR: "NA" means that the exhibit
1 was not admitted on the 27th of February.
2 JUDGE JORDA: I see. It was not admitted on
3 the 25th of February, it was a protected witness,
4 Witness HH, and can I say this in public, Mr. Registrar
5 or not?
6 THE REGISTRAR: Yes, of course. The list
7 cannot provide any real information.
8 JUDGE JORDA: In that case, we don't have to
9 have a closed session, but you will let me know when
10 that is necessary.
11 So D89 is a Defence exhibit tendered during
12 the testimony of Witness HH. It is a list of men who
13 were given work to do in connection with the artillery
14 and this list contains their responsibilities and their
16 Mr. Prosecutor, why do you object to this
17 exhibit being admitted?
18 MR. HARMON: Mr. President, I object because
19 this is an exhibit that the Court has already ruled
20 on. I refer the Chamber to page 6942, and I will quote
21 Your Honour, Mr. President, at lines 11 through 15 --
22 JUDGE JORDA: I'm afraid of that. But go on.
23 MR. HARMON: In respect of this particular
24 exhibit, Your Honour stated:
25 "JUDGE JORDA: The Judges have decided that
1 the document was not identified by the
2 witness. The document was not
3 identified by the witness and he does
4 not recognise this, and therefore, the
5 document cannot be accepted as an
7 That is the basis of our objection.
8 JUDGE JORDA: It is the basis of a decision
9 that we took, my dear colleagues; the question of
10 identification by the witness. In that case, we took
11 that decision some time ago.
12 So, Mr. Hayman, are you opposing this
13 observation? This need not be my definitive decision,
14 but we can decide on the bench about it.
15 MR. HAYMAN: This list, Mr. President, as I
16 understand it, it's a list of artillery personnel, the
17 so-called light artillery division. I think that since
18 the Court's ruling, there has been concrete
19 identification of at least some of these individuals,
20 including the first individual at the top of page 1,
21 Mirko Batinic, as the commander of the division. So
22 some of the information in the document has been
23 confirmed by subsequent testimony.
24 The other reason I'm concerned that it needs
25 to be part of the record is, as I recall, this was
1 shown to a witness who identified the commander of the
2 Operative Zone level light artillery group as someone
3 other than Mr. Batinic. This document was then shown
4 to the witness ...
5 JUDGE JORDA: I apologise.
6 MR. HAYMAN: This document was shown to the
7 witness, and the witness said, "No, I don't recognise
8 any of these people as having anything to do with the
9 light artillery division." I'm paraphrasing and I'm
10 going from memory, Mr. President, because I haven't
11 found this passage or exchange in the transcript, and
12 if I make an error, I invite correction. But it seems
13 to me, for the record to be complete, since a witness
14 was shown this document, the witness was asked, did he
15 recognise names on the document? The witness said no.
16 That's my recollection; but it was a long time ago.
17 That for the record to be complete, it needs to be in
18 the record.
19 I have no problem with the Court noting that
20 this document has not been authenticated. The Defence
21 concedes that it hasn't been authenticated other than
22 by certain corroborating information, [redacted]
25 That's my concern, Mr. President.
1 MR. HARMON: Mr. President, I only read the
2 first part of your ruling. I can continue with the
3 rest of your ruling. I thought the first part would be
4 dispositive. I think it's important, however, that the
5 Court consider that the Defence must -- I'm sorry, let
6 me retract that.
7 Let me continue with your ruling. I read the
8 first part of your ruling which was the decision. The
9 second part of your ruling went on to say:
10 "JUDGE JORDA: In the second place, it is
11 legitimate for Mr. Nobilo to question
12 the witness on points that interest him
13 using a document, whether it is given
14 directly to him or whether Mr. Nobilo
15 considers it as something which is his
16 own documentation.
17 "Third, if the Defence wants to
18 tender this as an exhibit after the
19 cross-examination of the witness on the
20 specific point, at that point the
21 Defence must provide the Trial Chamber
22 with all the elements which allow it to
23 identify and to authenticate it so the
24 Prosecutor can exercise his own right
25 for a redirect."
1 Our view, Mr. President, is that there was a
2 clear ruling on this document, the witness could not
3 identify this document, and we therefore object to its
5 JUDGE JORDA: That is true. But I thought
6 that Mr. Hayman was saying that certain parts of that
7 document were authenticated through other witnesses.
8 That is what I understood.
9 MR. HARMON: Mr. President, if Mr. Hayman
10 wants to direct me to testimony in the transcript where
11 another witness identified and authenticated this
12 document, then we would reconsider our position.
13 JUDGE JORDA: I am in a more flexible
14 system -- I am saying this in passing -- because it is
15 true, in my system, the exhibit would be admitted, and
16 then the Judges would assess it as having limited value
17 because it was challenged.
18 Personally, my tendency would be to admit it,
19 in view of what Mr. Hayman told us, saying that certain
20 aspects of it were authenticated by other witnesses.
21 Could we perhaps find a practical solution, I
22 turn to the registrar, of the type -- but, of course, I
23 will need the approval of my colleagues -- the
24 admission but with the addition of the record, the
25 transcript from this morning, saying that certain parts
1 were authenticated and others not.
2 Before I consult my colleagues, Mr. Hayman,
3 do you have other observations to make?
4 MR. HAYMAN: I see, Mr. President, that
5 General Blaskic identified Mirko Batinic as a member of
6 the Operative Zone command at page 19321 of the
7 transcript. He wasn't shown the document, and it
8 doesn't appear to be more specific than that. That's
9 the only passage I can quickly find where the identity
10 of this person was confirmed, but only partially. And
11 I'm not saying that the document itself was
12 authenticated by anyone.
13 JUDGE JORDA: Could a partial admission be
14 acceptable, but asking the registrar to take note of
15 the points made by the Defence and the Prosecution,
16 that it hasn't been fully authenticated?
17 MR. HARMON: Mr. President, may I make an
18 observation on your observation? That is, we don't
19 care to be hypertechnical in terms of the admission of
20 these documents. We would accept your proposal,
21 Mr. President, that the objections be noted by both
22 sides, we articulate what our objections are, and the
23 Court take these documents into evidence, noting what
24 the objections are from both sides, and give them
25 whatever weight it deems appropriate.
1 JUDGE JORDA: Then it would be a partial
2 admission, according to the procedural system that we
3 are familiar with, a partial admission with this
4 addition of the comments made today, that is, partial
5 recognition of some elements specifically by the
6 accused. But I must consult my colleagues because they
7 probably know this procedural system better than I.
8 Mr. Hayman -- thank you, Judge Rodrigues --
9 you want to respond to the proposal of the
10 Prosecution? No objection? Then let me consult my
11 colleagues, please.
12 (Trial Chamber confers)
13 JUDGE JORDA: Thank you, my dear colleagues.
14 So that is how we are going to proceed. Take note,
15 Mr. Registrar, of this admission, but a partial
16 admission, with the reservations noted and all the
17 possibilities will be open, so should there be an
18 appeal, that we will have a record of it all. Thank
20 Is that acceptable?
21 MR. HARMON: Mr. President, it's acceptable.
22 Let me just make sure in my own mind that a partial
23 admission means that the piece of evidence that is
24 being submitted will be considered by the Judges.
25 Depending on weight that the Court gives it, it could
1 well conclude that it is worthy of full weight or it
2 could reject, in its own deliberations, the piece of
3 evidence. That is how I understand what you're saying;
4 is that correct?
5 JUDGE JORDA: That is to say, the elements of
6 the exhibit which have been authenticated today are
7 fully admitted. That is what I would call a partial
8 admission. If, of course, the Judges find in the
9 exhibit elements in support of their conviction, then I
10 think they should say in their ruling that they gave it
11 certain weight but taking into account that it hadn't
12 been admitted.
13 Of course, the Judges will be exposed to the
14 possibility of appeal. So when using that exhibit, the
15 Judges must use only those parts of the exhibit that
16 have been authenticated. Then, of course, it is up to
17 the Judges to give them the weight they deem fit.
18 Are we agreed? Would you like to join in
19 this debate? If the Judges use this exhibit, they must
20 take into account all these observations made and have
21 a debate amongst themselves in the case of any
22 difficulty. Are we agreed?
23 MR. HARMON: The Prosecutor agrees,
24 Mr. President.
25 MR. HAYMAN: Very well.
1 JUDGE JORDA: Next exhibit, please.
2 MR. HAYMAN: The next piece of evidence is
3 Exhibit 92.
4 JUDGE JORDA: Yes, Mr. Prosecutor, D92. It
5 was not admitted on the 25th of February, again with
6 the Witness HH. For the benefit of my colleagues, I
7 think we can speak of what it was about.
8 It is a statement, I will not say by whom
9 because the person is under anonymity, made in Vitez on
10 the 7th of February, 1993, giving the reasons why he
11 abandoned his post. I will not say more because it
12 will permit identification and we're in public
14 Mr. Prosecutor, it is an exhibit tendered on
15 the 25th of February, 1998.
16 MR. HARMON: Yes. Mr. President, I would
17 direct the Chamber's attention to the transcript,
18 English version, page 6971 and 6972. The protected
19 witness was asked whether he recognised the signature
20 at the bottom and indicated he did not, and the Defence
21 then said that it would like the document, this
22 particular document, to be given an exhibit number and
23 they would authenticate this document in the course of
24 presenting their case. No such evidence has been
25 presented by them in the course of the case in respect
1 of this particular document. That is our objection.
2 JUDGE JORDA: Mr. Hayman, a priori, it cannot
3 be admitted.
4 MR. HAYMAN: Well, I have two propositions
5 for the Court. One involves something that the witness
6 said, but I think this was in a closed session, and I
7 think we better go into a private is session for just a
8 moment while I quote a passage of the transcript
9 relating to this issue. Just for a moment,
10 Mr. President.
11 (Private session)
10 pages 24300 to 24367 redacted in private session
22 --- Whereupon the hearing adjourned
23 at 12.20 p.m., to be reconvened on,
24 Monday, the 5th day of July, 1999
25 at 2 p.m.