1 Monday, 7 June 2004

2 [Open session]

3 --- Upon commencing at 2.18 p.m.

4 [The accused entered court]

5 JUDGE ANTONETTI: [Interpretation] Mr. Registrar, will you please

6 call the case.

7 THE REGISTRAR: [Interpretation] Mr. President, case number

8 IT-01-47-T, the Prosecutor versus Enver Hadzihasanovic and Amir Kubura.

9 JUDGE ANTONETTI: [Interpretation] Thank you, Mr. Registrar.

10 Can we have the appearances for the Prosecution, please.

11 MR. MUNDIS: Good afternoon, Mr. President, Your Honours,

12 Counsel, and everyone in and around the courtroom. For the Prosecution,

13 Mathias Neuner, Daryl Mundis, and our case manager, Andres Vatter.

14 JUDGE ANTONETTI: [Interpretation] Thank you, Mr. Mundis.

15 And the appearances for the Defence, please.

16 MS. RESIDOVIC: [Interpretation] Good afternoon, Mr. President.

17 Good afternoon, Your Honours. On behalf of General Hadzihasanovic, Edina

18 Residovic, lead counsel; and Stephane Bourgon, co-counsel. Thank you.

19 MR. IBRISIMOVIC: [Interpretation] Good afternoon, Your Honours.

20 On behalf of Mr. Kubura, Rodney Dixon, Fahrudin Ibrisimovic, and Nermin

21 Mulalic, legal assistant. Thank you.

22 JUDGE ANTONETTI: [Interpretation] The Chamber bids good afternoon

23 to all those present on this Monday afternoon, representatives of the

24 Prosecution, the Defence counsel, the accused, as well as all the staff

25 members of this courtroom.

1 As we indicated last week, this day should be devoted to the

2 continuation of the screening of the videotapes, and the Chamber also

3 planned next Wednesday another hearing when we can deal with outstanding

4 issues. But if today we manage to view all the remaining videos and if

5 we have a chance to address the matters that we had planned for

6 Wednesday, in that case we would not have to have another hearing on

7 Wednesday. But we need to have information from the Prosecution: first,

8 the approximate time and duration of the videos that are going to be

9 shown; and secondly, have you had any reaction from Mrs. Benjamin, who

10 went on site regarding the archivists?

11 So, Mr. Withopf [as interpreted], can you tell us where we stand,

12 please.

13 MR. MUNDIS: Thank you, Mr. President.

14 I'll leave the issue of the videos and the length of the videos

15 to my colleague, Mr. Neuner.

16 With respect to Ms. Benjamin and her mission last week to

17 Sarajevo, she has in fact returned to The Hague; however, she phoned me

18 this morning and she returned to The Hague with some kind of illness and

19 she is not in the office today. So I have not had a full opportunity to

20 discuss issues with her. Again, based on discussions that I had with her

21 on Friday, however, I do not anticipate that we will have a problem

22 filling the week of the 21st of June with witnesses. However, as of this

23 moment, I do not have the specific names nor do I have the witness

24 statements in a format to be disclosed to the Defence. I anticipate

25 being able to disclose witness statements to the Defence tomorrow, again

1 assuming that Ms. Benjamin makes a full and speedy recovery and is in the

2 office tomorrow.

3 Again, Mr. President, with respect to the videos, I turn to my

4 colleague Mr. Neuner.

5 JUDGE ANTONETTI: [Interpretation] Thank you, Mr. Mundis.

6 Mr. Neuner, you have the floor to present the videotapes, and

7 more specifically, could you tell us the total duration that you envisage

8 that the tapes will take.

9 MR. NEUNER: Good afternoon, Your Honours. Good afternoon,

10 Defence counsel, and everybody in and around the courtroom.

11 I have prepared an order list for Your Honours and the parties.

12 Let me ask the usher to distribute this.

13 On this list are 11 excerpts and the total length of these

14 excerpts is 96 minutes. The overwhelming majority of these excerpts come

15 from the reserve list. The Prosecution has also made efforts and

16 revisited some of the tapes from which excerpts have been shown already

17 last week, and as Your Honours can see, about 50 per cent of these

18 excerpts here have a short duration, and there are a few excerpts which

19 have a longer duration.

20 I just learnt a moment ago from one of the Defence counsels that

21 the tapes on order 6 till 10, which is basically one in the same tape,

22 2414, that -- V000-2414, that there is uncertainty whether the Defence

23 has fully received that tape in the process of the disclosure. My

24 understanding is that the tape carrying this ERN number has been

25 disclosed but that the content -- it's unclear whether the content

1 matches.

2 JUDGE ANTONETTI: [Interpretation] If I understand you well, we

3 still have 11 clips to view which you numbered from 1 to 11. The

4 duration of each tape is clearly indicated: 1 minute; 1 minute; then

5 2 minutes for the third; the fourth, 3 minutes; the fifth, 4 minutes; the

6 sixth, which will be the longest, 42 minutes; the seventh 9 minutes; the

7 ninth 16 minutes; the tenth 5 minutes; and the 11th, 1 minute

8 approximately. So in total about one and a half hours of videotapes. So

9 we have plenty of time to view all the videos on this list.

10 The Defence appears to have a problem regarding the video with

11 the number 2414, because on that video there are several parts

12 corresponding to 6, 7, 8, 9, and 10, and the Defence is not quite sure

13 that it was disclosed to them. The Prosecution tells us that they did

14 disclose these documents to them.

15 So what can the Defence tell us regarding this problem, the

16 Prosecution having told us that Defence counsel did receive in time the

17 mentioned videotapes? However, even if you didn't receive them, the

18 binder containing the transcripts allowed you to familiarise yourselves

19 with those tapes and the contents of the tapes, because tape 2414 appears

20 under number 7 -- as tab number 7 of the mentioned binder.

21 As I have V000-2414, tab 7. The transcript is in English and in

22 B/C/S.

23 Does the Defence wish to make any comments regarding this

24 document 2414? Mr. Bourgon.

25 MR. BOURGON: [Interpretation] Thank you, Mr. President. Good

1 afternoon, Madam Judge and Your Honours.

2 I simply wish to remind the Chamber that last week we were having

3 arguments regarding the last tape viewed and we would like to present our

4 arguments regarding that video.

5 As for the other videotapes, my colleague from the Kubura Defence

6 will speak on behalf of the Defence.

7 JUDGE ANTONETTI: [Interpretation] So the best thing would be to

8 first give the floor to Mr. Dixon to hear their opinion regarding 2414,

9 and afterwards I will give you the floor, Mr. Bourgon, for your

10 observations.

11 Mr. Dixon.

12 MR. DIXON: Thank you, Your Honours.

13 Good afternoon, Your Honours.

14 In respect of the video 2414, I've been advised that this was a

15 video that was only -- we were only notified this morning was going to be

16 shown today in the court. It was disclosed to us earlier, but when we

17 checked the CD-ROM that it was disclosed on, that number appears on the

18 CD-ROM, but the material is in fact not recorded on the CD-ROM. So we

19 have the transcript but we do not have the images on the CD-ROM, and

20 that's what we require in order to be able to review this video before it

21 is shown in court to Your Honours.

22 To it appears to be a technical problem. It is on the transcript

23 clear that it is meant to be some image of alleged destruction in the

24 Kakanj area, which is, as a side issue, not a charge made in the

25 indictment but nevertheless from the transcript we can deduce that. But

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1 when we look at the CD-ROM, we can't see those images and would require

2 those to be disclosed to us before they are shown to Your Honours.

3 Perhaps that can be done in the break, with the assistance of my learned

4 friends from the Prosecution.

5 Thank you, Your Honours.

6 JUDGE ANTONETTI: [Interpretation] That is precisely what I

7 thought and that is, since you are five lawyers, that the CD-ROM could be

8 shown to you immediately and then after the break we can broadcast the

9 tape 2414. But as the break lasts 30 minutes, perhaps you won't have

10 time to view everything, because tab 6 lasts 42 minutes. So it would be

11 best for one of you to leave the courtroom to go and view the tape before

12 it is broadcast in court. This could be a solution since you do have the

13 transcript in your possession.

14 Mr. Dixon, would it not be possible for one of you to go and view

15 this CD-ROM before the break -- as of now, including the break time?

16 Because the break is 30 minutes, whereas the tape will last at least

17 42 minutes.

18 MR. IBRISIMOVIC: [Interpretation] Thank you, Mr. President. We

19 can view this tape on our own computer which is in the courtroom, so we

20 don't have to leave the courtroom.

21 JUDGE ANTONETTI: [Interpretation] Mr. Bourgon, you have the

22 floor. We are listening.

23 MR. BOURGON: [Interpretation] Thank you, Mr. President.

24 Mr. President, when we left last week, we had just viewed a

25 videotape concerning destruction of houses and other facilities in Bosnia

1 and Herzegovina. The Chamber noted following the viewing that these were

2 scenes of devastation, and they appeared to be at the beginning of the

3 winter and the villages we saw were in a very dramatic case, in a

4 dramatic condition. But I think -- we think that it is not admissible.

5 We will divide the arguments into two parts: first of all, the commentary

6 that accompanies the video; and secondly, the question of the actual

7 images. Contrary to my custom, I will begin with the commentary.

8 The person commenting this videotape is a person that has already

9 been heard in this Chamber at the beginning of the trial. This witness,

10 when testifying in the chamber, was not shown this video and no questions

11 were put to her about that video and we were not in a position to

12 cross-examine that witness regarding the contents of that tape. The

13 testimony of that witness in the courtroom differs considerably from what

14 appears to be her commentary on the videotape, so this is actually a

15 second testimony. And unless the witness is brought back to the chamber

16 for us to be able to cross-examine her, then the commentary itself should

17 be declared inadmissible for this trial.

18 I pass on now to the second question; that is, the question of

19 the pictures, the images. These images date back to 1997. We don't know

20 exactly when the houses that we saw were destroyed -- when they were

21 destroyed. We don't know who destroyed those houses, and we don't know

22 how those houses were destroyed. Nevertheless, we do know on the basis

23 of the evidence heard during this trial that this was a regular scene

24 following attacks. During the days and weeks that followed, there was

25 destruction after an attack, destruction committed by civilians and all

1 kinds of people, be they criminals or simply refugees. Clearly,

2 Mr. President, this videotape from 1997 can give an impression of

3 destruction and devastation, an impression of totally razed villages.

4 However, we feel that that impression should not be admitted as evidence

5 in this trial, because, first of all, the pictures that we saw were not

6 relevant -- are not relevant, as we do not have any link between the

7 destruction and the charges against the accused in this trial because, as

8 I was saying a moment ago, we don't know who, when, or how the

9 destruction was committed.

10 Therefore, to take destruction in these -- Bosnia in 1997 as

11 evidence would be very dangerous for this case. We refer to Rule 89(D)

12 which we feel can be fully applied in this case; that is, evidence

13 admitted as such can have -- be more prejudicial with respect to its

14 probative value. So the probative value of this evidence is so minimal,

15 that is, significantly exceeded by the interests of a fair trial [as

16 interpreted]. So first of all, the commentary, and also the pictures,

17 the two parts of this video that we viewed last week should be declared

18 inadmissible.

19 Thank you, Mr. President.

20 JUDGE ANTONETTI: [Interpretation] Thank you, Mr. Bourgon.

21 I will give the floor to the Prosecution, who, if they wish, can

22 respond to the two arguments set forth by the Defence, regarding the

23 commentary and the images.

24 Regarding the commentary, the Defence tells us that the person

25 commenting on those -- commenting those images could have been

1 cross-examined if she had been present during the viewing, which would

2 have allowed the Defence to ask her questions about the tape. And that

3 is why the Defence is requesting that the commentary of this videotape

4 should not be admitted.

5 The second point has to do with the images. The Defence makes

6 three basic observations: Who, when, and how. The Defence is of the

7 opinion that we don't know who carried out the destruction; the question

8 of when, we don't know, as the videotape was filmed in 1997, whereas the

9 events covered by the indictment date back to 1993. And also we do not

10 know how the destruction was carried out. The Defence is of the opinion

11 that there are three possibilities: Either it may have been done by

12 civilians, or by criminals, or perhaps refugees. For all these reasons

13 the Defence submits that this video is inadmissible as a whole.

14 And finally, the Defence refers to 89(D), and that is there has

15 to be a balance between the rights of the accused and a fair trial and

16 the probative value of the evidence, which in their opinion is

17 considerably below the level required not to effect a fair trial, the

18 fairness of the trial [as interpreted]. And that is why the Defence

19 would submit that the Chamber should not admit this videotape into

20 evidence.

21 Can the Prosecution respond to these observations, which we are

22 not hearing for the first time. Surely Mr. Dixon will be speaking along

23 the same lines, and you have the floor, Mr. Dixon.

24 MR. DIXON: Yes, thank you, Your Honours. I do wish to make a

25 few points in support of the submissions made by Mr. Bourgon.

1 Our point of view is also that the video should not be admitted

2 into evidence. The timing of when the destruction occurred is, of

3 course, extremely pertinent in this case, as Your Honours may be aware

4 from the cross-examination of certain witnesses. In relation to the

5 alleged destruction in the Ovnak and Strmac area, the Defence of

6 Mr. Kubura is that the 7th Brigade left that area shortly after the

7 attack which was completed on 8 June, certainly by 10 June. And hence

8 the time when any alleged destruction did take place is critical for any

9 charges that are laid against Mr. Kubura, as the commander of the 7th

10 Brigade.

11 These images were taken many years later, and it's impossible

12 from viewing the images to say when any of the destruction that one might

13 see on the video did occur, and certainly not possible to say if it

14 occurred on the 10th, 11th, or 12th of June, which, from the Defence

15 point of view, is the critical question for Your Honours to decide in

16 relation to this charge.

17 Your Honours, in addition to that, there are significant

18 distinctions between what the witness said in his testimony, where he

19 wasn't as clear about what destruction did occur. This is Witness ZM,

20 who testified on the 19th of March of this year and the comments that he

21 did make on the tape. There are some points that are similar; for

22 example, he indicates that there was no destruction in the Brajkovici

23 village. But there are many points that differ, and for those reasons

24 alone we say that the video is unreliable and Your Honours should turn to

25 what he said before Your Honours in the witness box, when there was an

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1 opportunity to put the videotape to him and to confirm whether his

2 commentary on that tape was correct or not.

3 Your Honours, just on the commentary, there's another point.

4 Although we were not experts in sound, but when looking at the images it

5 appears that the commentary was recorded after the images were recorded.

6 The sounds that are in the background when the commentary is being made

7 do not appear to be sounds that would normally come across when driving

8 in a vehicle and filming. It appears that it was done much later. That

9 might be a question that we cannot finally determine because we don't

10 have expertise, but another point going to the reliability, we say, of

11 this evidence.

12 Finally, Your Honours, there was mention made in the commentary

13 about the 7th Brigade sign or words being visible on a particular house.

14 We've looked again and again at the images, and even though that's in the

15 commentary, that doesn't appear to be what the images show. It's

16 certainly unclear what is on a particular house. And that would be

17 another reason for excluding is commentary and those images.

18 Your Honour, for all of those reasons, we would request that this

19 videotape be excluded from the evidence in this case. I'm grateful.

20 JUDGE ANTONETTI: [Interpretation] Thank you, Mr. Dixon.

21 I shall give the floor now to the Prosecution. I don't know

22 whether it's going to be Mr. Neuner or Mr. Mundis who's going to respond.

23 But I think can speak on behalf of the other two Judges as well. One may

24 wonder why this videotape, and on a more general level other evidence,

25 why the Prosecution did not choose to show them when the witness was

1 present. If that had been done, we wouldn't be having this debate. The

2 Prosecution is not obliged to answer this particular question that I'm

3 putting to them as -- on my own behalf, but the question that the Judges

4 may wonder is why it was not broadcast when the witness was present.

5 So, Mr. Mundis, can you give us an answer?

6 MR. MUNDIS: Mr. President, as the Trial Chamber may be aware, a

7 number of attorneys have appeared for the Prosecution in this case. As a

8 general rule, the attorney taking the witness is responsible for which

9 exhibits or videotapes are to be shown or produced through that witness.

10 I am attempting to via e-mail find an answer to that question. The

11 attorney who took this witness is still employed with the Office of the

12 Prosecutor but is no longer assigned to this case. As I've said, I've

13 sent an e-mail to him in an attempt to find out precisely why that was

14 not the case, and I might respectfully suggest that we perhaps could

15 return to that specific issue at a later time, if it's appropriate to do

16 so. I simply don't have an answer is the bottom line, Mr. President.

17 JUDGE ANTONETTI: [Interpretation] Very well. Thank you for your

18 answer. You have more or less answered the question I put to you a while

19 ago.

20 So we have noted at this stage of the proceedings what the

21 Defence counsels have told us, and the Chamber at any rate will have to

22 render a decision on this.

23 That said, we can now continue the proceedings, and I would like

24 to turn now to Mr. Neuner and ask him to show us the first videotape,

25 which is about to be broadcast.

1 MR. NEUNER: Your Honours, the first videotape on your list is

2 V000-1440. This is a video sequence from the TV news dealing with the

3 Mujahedin presence in Bosnia-Herzegovina. The Vahabi sect is mentioned.

4 The producer was Studio B, which reads, Information provided by a

5 correspondent from the British newspaper the Daily Telegraph.

6 The Prosecution has tried to give a date -- to attach this

7 particular news to a date and the date is in September 1992, so prior to

8 the indictment period. This is an inference drawn from the fact that the

9 videotape itself contained numerous news excerpts in sort of

10 chronological order and the Prosecution has just looked at the previous

11 and the following sequences and tried to, draw an inference from there.

12 So the Prosecution believes it's September 1992. It's a one-minute

13 sequence from Studio B or NTV, which is Independent TV in Belgrade. And

14 the source who has provided this video news compilation to the ICTY was

15 Natasha Kandic, who is executive director of the Humanitarian Law Fund.

16 I believe, for the translators, a rough translation can be found

17 in tab number 21 of the binder, and the relevant excerpt is from 1 hour

18 24 minutes running for about 1 minute, and the excerpt will be shown now.

19 [Videotape played]

20 THE INTERPRETER: [Voiceover] This is an attack of Muslims on a

21 convoy. Karadzic's letter was published in London. Karadzic warns that

22 Serbs will not be carrying out defence, that they will be forced to

23 occupy all the territories that they had left. "I'm afraid that only

24 days separate us from a catastrophe," says Karadzic in his letter.

25 The report of the Daily Telegraph from Zagreb says that in Bosnia

1 there are no Mujahedins and we read in this report that Mujahedins were

2 seen in Travnik and that they are not Arabic students. In his --

3 JUDGE ANTONETTI: [Interpretation] This is a videotape which lasts

4 one minute. In the beginning we see a picture of Karadzic; and then two

5 speakers, a man and a woman, part of a television crew from Belgrade.

6 And they talk about this letter from Karadzic that mentions the Mujahedin

7 and these Mujahedin would be part of -- or would belong to an extremist

8 sect called Vahabi. So that's all we can infer from this excerpt.

9 I shall now give the floor to the Defence team. Does the Defence

10 team have any comments to make? The Trial Chamber would like to hear

11 you.

12 MR. BOURGON: [Interpretation] Thank you very much.

13 This is a videotape. It is said that this videotape goes back to

14 September 1992. We don't know anything about that. Once again, we don't

15 know who prepared this report. Is it something which was collated

16 afterwards? We just don't know. Whatever the case may be, on viewing

17 this video it seems like this is an excerpt from the news bulletin for

18 Belgrade station providing news on Zagreb. I think the reliability of

19 such a tape can be questioned.

20 When we look at the content of this videotape, this videotape

21 provides no new piece of information. The fact that there might have

22 been Mujahedin there, if the date were 100 per cent correct, then of

23 course it might be relevant. But in this particular case, as the

24 information is not particularly reliable, we don't know at what time the

25 Mujahedin were actually in Travnik. This is a question which has come up

1 again and again in the course of this trial, and this video would only

2 confuse the evidentiary material even more than has been the case before.

3 So once again, we would like this videotape -- this exhibit not to be

4 admitted.

5 Thank you, Your Honour.

6 JUDGE ANTONETTI: [Interpretation] Thank you.

7 Mr. Dixon, you have the floor.

8 MR. DIXON: Your Honours, nothing further to add to what

9 Mr. Bourgon has said, Your Honours, except to say that the translation at

10 tab 21 that we have does not correspond to what we've just seen on our

11 screens. The translation we have at tab 21 is a report from Ankara,

12 Turkey and lasts some two and a half pages. So we don't have any

13 transcript at tab 21 for what we've seen. Perhaps it's elsewhere and the

14 Prosecution could direct us to where it is. But nothing further to add,

15 other than that.

16 Thank you, Your Honours.

17 JUDGE ANTONETTI: [Interpretation] Yes. Mr. Dixon, if you turn to

18 page 3, you would have found it there. On page 3, at the bottom of the

19 page, you can read: "Studio B."

20 MR. DIXON: I'm grateful, Your Honours. In other words, only

21 that portion was shown and not any of the previous sections. Thank you.

22 JUDGE ANTONETTI: [Interpretation] Thank you.

23 Mr. Bourgon.

24 MR. BOURGON: [Interpretation] Thank you, Your Honour.

25 The last question raises an issue as far as we are concerned. In

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1 our view -- in other words, we would like the video excerpts, which will

2 be viewed before the Trial Chamber, as well as the excerpts we have in

3 the binder. We understand full well, Your Honour, that only those

4 excerpts from the videotapes which we would like to see admitted are

5 excerpts which we can actually view before the Trial Chamber. And the

6 reports which are not part of those excerpts viewed before the Trial

7 Chamber, be not admitted into evidence.

8 I just wanted to make this clear that there can be no confusion

9 about this, that the video excerpts can be admitted but the reports that

10 go along with these video excerpts should not be admitted.

11 JUDGE ANTONETTI: [Interpretation] Yes. Let me turn to the

12 Prosecution. At tab number 21, we can see that several reports are

13 included here and these reports probably refer to other video excerpts.

14 You have selected the Studio B excerpt only, the one that's right at the

15 end, which means that all the other reports can -- could not be admitted

16 into evidence because they have not been presented.

17 Let me give the floor back to the Prosecution.

18 MR. NEUNER: Your Honours, as the Defence has rightly pointed

19 out, it is not the Prosecution's intention to tender anything else than

20 the excerpt shown in open court -- to tender anything else into evidence

21 or ask for its admission into evidence. The binder was simply prepared

22 to give, especially the Defence, notice about other sections of this

23 tape, because the Prosecution believes it's in the interests of -- to

24 find out the truth that also the other party has certain excerpts of

25 transcripts of translations of certain excerpts available.

1 With regard to this particular tape, my understanding of having

2 looked into the information index form, the so-called IF form, this tape

3 forms part of a larger collection which can be -- which is internally be

4 called the Red Tape Collection, which means nothing else than that on the

5 so-called red tapes simply video footage from news sessions on TV

6 Belgrade have been recorded in more or less chronological order.

7 What I can see here from the IF in front of me is that, for

8 example, the first tape starts on -- the first excerpt starts on

9 3 September 1992 - that's what the IF indicates to me - and the last

10 sequence, for example, on this tape dates from 26 April 1993. And in

11 between there are, yeah, some excerpts containing news always on TV

12 Belgrade. Whether these were evening news, morning news, I cannot tell.

13 However, having looked also at other collections or other tapes of this

14 collection, the tapes, the so-called red tapes, yeah, they follow a kind

15 of chronological order.

16 This excerpt has been selected just to demonstrate that at an

17 early point in time, in 1992 in September, the issue of Mujahedin has

18 been discussed not only on the side of the Bosnian Muslims, but rather

19 also on the side of the adversaries to the conflict. The Prosecution is

20 well aware that this small excerpt just reflects the view of one side of

21 the conflict, and to be precise, Radovan Karadzic is mentioned here. It

22 just reflects what in the news at a particular place in Belgrade is

23 reported about the Mujahedin. And the Prosecution is simply of the

24 opinion that the tape only demonstrates that the issue of Mujahedin was

25 not only discussed in Central Bosnia as such but had a kind of -- was in

1 the public arena and was discussed also by the other sides.

2 JUDGE ANTONETTI: [Interpretation] Very well. Thank you.

3 Would you like to show the next video now, please.

4 MR. NEUNER: Your Honours, all these videos - just one more

5 announcement - are drawn from the so-called reserve list, so the

6 Prosecution is well aware that, like the previous video, they do not

7 necessarily relate directly to crimes committed in the indictment but can

8 be also of a more peripheral nature, meaning that they describe climate

9 of discussion going on about events which are coming from Central Bosnia,

10 namely the 3rd Corps area.

11 And the next tape is V000-1729. A transcript and translation

12 should be in tab 22 of the binder. And the sequence shown is 1 minute

13 long. It's a juxtaposition taken from a movie or a video which is called

14 "In Broad Daylight." The director is Ljubo Lasic. And the production

15 was the GRAL film and Lakehurst Productions International, which is a

16 film about war crimes committed in the war in Bosnia-Herzegovina. This

17 tape has been broadcasted on Croatian TV on the 17th of February, 1999.

18 The tape has been hand over by Mr. Amir Ahmic, the BiH liaison officer

19 with the ICTY, and it has been handed over to Mr. John Ralston, former

20 staff member, former chief of investigations in the Office of the

21 Prosecutor.

22 The sequence selected relates to expert opinions shown on the

23 influence of radical Islamic groups on -- the influence which these --

24 the presence of radical Islamic groups had on the population of Bosnia.

25 We will hear a statement from Mr. Daniel Nelson, and the Prosecution has

1 made further inquiries about the personality of Mr. Daniel Nelson.

2 Mr. Daniel Nelson, I cite here, has a Ph.D. from the Johns Hopkins

3 University and he became Dean of Arts and Science at the University of

4 New Haven in August 2002, in the United States. From January 1999

5 onwards he served as a professor of Civil-Military Relations at the

6 George C. Marshall Center for European Security Studies in Garmisch in

7 Germany from 2000 to 2002. He was at some point in time US State

8 Department official. And just one more information -- yeah. He was also

9 an observer of the Balkan Arms Trafficking from 1992 up to 1994. And

10 while he was working at the US State Department, he was working there in

11 the Kosovo section.

12 So the excerpt, being very brief, just one minute, will be

13 screened now.

14 JUDGE SWART: Could you tell us which page on the transcript.

15 MR. NEUNER: I have here on my footage, the relevant footage,

16 18 minutes 50 seconds till 20 minutes. And this is page 7.

17 [Videotape played]

18 THE INTERPRETER: [Voiceover] When the Serbs withdrew to

19 35 kilometres --

20 MR. NEUNER: Just to identify Mr. Nelson, because here the

21 transcript page 7 gives just "male voice." It's the second male voice

22 starting at 18.52, and the relevant excerpts selected starts at 18.50.

23 So a few seconds earlier.

24 [Videotape played]

25 THE NARRATOR: ... Mujahedin of various kinds that came into the

1 country and began to spread more of the fundamentalist idea. Even the

2 population of Sarajevo and also the nature of the government have become

3 more Islamic over time. So I think it's fair to say that as a

4 consequence of the war, that -- yet the suffering was enormous among the

5 Muslim population, and we need to bear that in mind -- but one negative

6 consequence of the war, certainly, has been increasing radicalisation of

7 the Muslim population and that's probably not -- not a good sign, because

8 it does not help Bosnia to integrate itself within Europe.

9 JUDGE ANTONETTI: [Interpretation] Very well. So this excerpt,

10 which lasts 1 minute, we can hear the commentary and we see images of

11 soldiers who are wearing a military uniform, who are shouting in Arabic.

12 And we even see a flag, a green flag, which someone is waving. In the

13 background, we can recognise a landscape which we've seen in other videos

14 prior to this one. This is what we're able to see, rather quickly.

15 The Defence team, what would you like to say?

16 MR. BOURGON: [Interpretation] Thank you, Your Honour.

17 I would first and foremost like to make a comment or, rather,

18 draw the attention of the Trial Chamber on the following, something which

19 has been the case since the beginning of this video footage, something

20 we've mentioned several times already. My colleague from the Prosecution

21 talks about internal systems which would bear the name of IF. If the

22 Trial Chamber is to view a tape in the presence of a witness who could

23 recognise the contents of this same video, this would mean that we would

24 not have to understand the date of production of this video because the

25 witness himself could then provide this information. In the absence of

1 any witness who could identify or authenticate this video, it is

2 therefore crucial to understand how the video was actually prepared, how

3 the video landed in the hands of the Prosecution, and how this video was

4 selected.

5 Just to give you an example: In the last excerpt we talked about

6 red tape, which according to the Prosecution would be a series of news

7 bulletins between various dates. Your Honour, we feel, therefore, that

8 the Prosecution cannot provide evidence material as such and it is too

9 soon to provide submissions, and how the Trial Chamber can infer anything

10 by viewing this video footage. So the Prosecution tells us, as regards

11 the last video excerpt that it wanted to show us, that the question of

12 the Mujahedin was something which extended beyond Bosnia and Herzegovina.

13 We feel that this argument has nothing to do with this excerpt, it has to

14 do with the intention of the Prosecution. So we feel that these

15 submissions should only be mentioned when it comes to adducing the

16 evidence in this case. At the moment we are only talking about a stage

17 when exhibits will be adduced into evidence. The Prosecution is

18 presenting its material, but we feel that the submissions should be made

19 at a latter stage.

20 Now, as far as this excerpt is concerned, there is no direct

21 connection with the crimes alleged in the indictment, and these are

22 peripheral to the indictment, as was mentioned, so I think that in this

23 case the Prosecution admits that this video is by and large not relevant.

24 In addition, as far as the making of this video is concerned, we

25 have the name of a company, even if we know that this information does

1 not come from any statement but comes from the Prosecution. We have a

2 viewing date, which is February 1999, and we have the date alongside the

3 name of the author. We don't have the date of the footage; we don't know

4 when this videotape was actually broadcast. We know nothing about the

5 Lakehurst International Productions either. Is this a production

6 company, a propaganda production company? Is this any serious firm? We

7 just don't know. We just know that a representative from the embassy

8 would have probably got hold of this videotape after having viewed these

9 excerpts in 1999 and handing them over to the investigators. Is it on

10 the request of the Prosecution or did the embassy quite freely hand over

11 these videotapes?

12 Then comes the question of the commentator, Daniel Nelson. The

13 Prosecution provides details of the CV of this gentlemen but we know

14 nothing about him. We are told that he was a professor in 1992, that he

15 worked in the United States at that date, but that he was in charge of

16 Kosovo and he was an observer of the arms -- illegal dealing in Kosovo.

17 Let me tell you, Your Honours, that we were all observers of illegal arms

18 dealing in Kosovo at that time. The images that we have seen go back to

19 what date? We don't know. These images were shot. We don't know at

20 what time either. We see a green flag and we see signs in Arabic. We

21 could, of course, connect this to the elements presented in the course of

22 the trial, but I think it's much too easy to establish a connection

23 between a green flag and Arabic inscriptions to infer that the scene we

24 have seen is something which could play any role whatsoever in the

25 evidence adduced in this case. And this might even be a prejudice for

1 the accused, so that would go well and away beyond the evidence of this

2 small video excerpt.

3 If the Prosecution wanted to hear an expert on the question of

4 Mujahedin, as they allege that this Mr. Daniel Nelson is an excerpt, why

5 didn't they call him as a witness so that we would clearly get a fair

6 understanding of this issue, rather than showing short excerpts to try

7 and impress the Trial Chamber with the latter? We are -- the Trial

8 Chamber cannot be influenced by such slim evidence.

9 Thank you, Your Honour.

10 MR. DIXON: Thank you, Your Honours.

11 The main point is that the Prosecution should not be permitted to

12 introduce expert opinion or analysis through a video like this. They

13 have the opportunity to call experts for cross-examination. Even

14 General Reinhardt may have been able to address some of these matters in

15 his expert testimony.

16 And then secondly, Your Honours, as Mr. Bourgon has pointed out,

17 the images of the soldiers, the same three questions come up in relation

18 to these images as have occurred in respect of many of the videos, which

19 is who, when, and where. We don't have any answers to these questions.

20 There's a flag, yes, but the witnesses who have come before, many of the

21 international witnesses have indicated that these types of flags were

22 used by many units in many areas. So in our submission, this short

23 excerpt can be of no assistance to Your Honours and should not be

24 admitted.

25 Thank you.

1 JUDGE ANTONETTI: [Interpretation] Very well. If the Prosecution

2 wishes to respond or to introduce the next clip, whichever.

3 MR. NEUNER: Just briefly, Your Honours.

4 The Prosecution in the course of the presentation of video

5 sequences has put more and more effort on providing background

6 information on the producer, on the tape, on the submitter, and now for

7 one of the first times even on the speaker who appears on this tape. So

8 the more and more information the Prosecution tries to assemble in order

9 to satisfy the Defence in its request for more information, the more and

10 more criticism is mentioned.

11 The Prosecution, if Your Honours permit, will continue with

12 providing background information which try to shed at least some light on

13 what is being screened, to try to give some background information

14 relating to the reliability Your Honours have to assess at some point in

15 time. And insofar that this assists Your Honour, the Prosecution will

16 continue in providing such information.

17 Just briefly, what has been omitted by my learned colleagues of

18 the Defence: On the two excerpts shown from the Mujahedin and throughout

19 the statement provided -- or the brief commentary provided by Daniel

20 Nelson, it could clearly be seen that Bosnian troops or Bosnian Mujahedin

21 troops in 1993. So the date 1993, which is this -- which is identical to

22 this indictment, was mentioned on the -- on both of the video footages

23 shown about the Mujahedin.

24 The Prosecution will now continue with the next sequence which

25 relates to the same tape. And the following sequence is drawn from the

1 timecode 26.15 till 27.58. This is basically page 9 following, on the

2 English transcript or translation. And basically two persons give short

3 commentaries here, both on Jihad. The first person is Imam Gadara, and

4 it is displayed on the bottom of the tape, [B/C/S spoken] 1996, which can

5 roughly be translated as "Pre-election rally of the ruling Bosnian

6 party." Imam Gadara is giving the first short commentary, and the second

7 is Imam Dzevad Hodzic, and also Daniel Nelson, who is already -- of whom

8 we have already seen footage. Also Daniel Nelson gives a third

9 statement. So it is from the same tape, and therefore the Prosecution

10 does not repeat the information about the provider and submitter.

11 The sequence will be shown now.

12 [Videotape played]

13 THE INTERPRETER: [Voiceover] In the Islamic teaching, Jihad is

14 our road. Jihad is our fight. Death on the Allah's road is our biggest

15 honour.

16 In the Islamic teaching, Jihad, the word and notion that is often

17 used in different situations, in fact means to invest efforts to become

18 serious; achieve a profit, a good goal. It further means that Jihad is

19 equal to writing a good book and providing for one's family, working in a

20 factory and building, reconstruction, and the defence of one's country.

21 [In English] There were other Islamic forces within Bosnia, that

22 were Bosniak themselves and did not come from the outside, that began to

23 be stronger. And some parts of Izetbegovic's own party that were

24 fundamentalist in nature began to be stronger and stronger all the time.

25 What we do see in Bosnia is inroads and a more fundamentalist approach

1 to religion, no question, because the Mujahedin were there; because the

2 religion was under attack.

3 JUDGE ANTONETTI: [Interpretation] This video excerpt begins with

4 Imam Gadara, who appears to be addressing an election rally and who said

5 that "the Jihad is our struggle." "The Jihad is our struggle."

6 After that, Mr. Daniel Nelson, whom we have already seen,

7 explains that a part of the Bosniaks were a kind of fundamentalist

8 element, and that is all that we can infer from this video excerpt, in

9 which we saw an Imam speaking about the Jihad, followed by a commentator,

10 who explains that among the Bosnians there were some who were certainly

11 part of a fundamentalist movement.

12 Please, Defence counsel, avoid repeating what you have already

13 said.

14 MR. BOURGON: [Interpretation] Thank you, Mr. President.

15 Our comment regarding this video is the same as for the previous

16 one, but I would like to add, Mr. President, two remarks: First,

17 following what my learned friend from the Prosecution said, that they

18 were endeavouring to provide more information, I don't know whether he

19 said to satisfy or to give pleasure to the Defence. We would like to say

20 that when the Prosecution provides more information, it is certainly not

21 to please the Defence but to fulfil the burden that they have, the burden

22 of proof. And we, too, will have the same burden when our case begins.

23 So it is certainly not to please the Defence. It is a misinterpretation

24 of our arguments regarding these videos.

25 At the same time, Mr. President, we are looking at the small

1 clips of film that are being shown and all we can see is that we are

2 showing some kind of Mujahedin ghost in the background of this trial. We

3 feel this is a discrimination against the language, the religion, the

4 colour of a people, of a nation, and that has nothing to do with the

5 trial we are concerned with. And I think that for this reason it is very

6 important not to admit this evidence into -- this video into evidence.

7 JUDGE ANTONETTI: [Interpretation] Thank you, Mr. Bourgon.

8 MR. DIXON: [Previous translation continues] ... To add that this

9 video clip, it's difficult to understand what relevance it could bring to

10 the issues in this trial given that it was prepared, I understand, in

11 1996 and relates apparently to some political rally, but it's not clear

12 at all which party's is the platform of the rally and whether that has

13 any link to any of the political parties in 1993 or any of the imams who

14 were present in 1993. And for that reason, beyond the Prosecution being

15 able to give any more explanation as to the relevance of this particular

16 clip to who were the persons and parties in 1993, our position is that it

17 should not be admitted into evidence.

18 Thank you, Your Honours.

19 JUDGE ANTONETTI: [Interpretation] Thank you.

20 The Prosecution now, if you wish to respond, or to introduce the

21 next clip.

22 MR. NEUNER: Just very briefly. The relevance of this sequence

23 is -- or this sequence is relating to paragraph 18 of the indictment,

24 where the term "Jihad" or "holy war" in Bosnia is mentioned.

25 And as Your Honours have pointed out, we have seen three

1 opinions, and I just want to add this: The first imam which has been

2 shown, Jamaal Gadara, I have here information. He was, in 1996 - so

3 around the time when he was at this rally, and we could see the

4 pre-election rally or the title of the pre-election rally and the year

5 displayed on the video - he was the imam of the Islamic Studies Center.

6 The second imam, who brought forward a more moderate view, was

7 Dzevad Hodzic, or His Eminence Dzevad Hodzic, Grand Imam from the Zagreb

8 Mosque. The Prosecution will now briefly summarise that the issue of

9 Islamic fundamentalism, Jihad and so on, has been obviously discussed by

10 experts such as Daniel Nelson, as well as inside the cleric or inside the

11 religious leaders.

12 And the next footage is taken from a tape which has already been

13 shown last week. It's V000-3764, and just a short excerpt has been

14 selected. It relates, again, to the gathering of the Battalion Jihad or

15 El Mujahed Unit in Bosnia-Herzegovina in August 1993. This excerpt shows

16 from this gathering, additional few seconds which basically hopefully

17 will enlighten Your Honours with regard to the purpose of this gathering.

18 JUDGE ANTONETTI: [Interpretation] And where can we find the

19 transcript? On what page in the binder? The transcript of the tape,

20 please.

21 MR. NEUNER: It must be in tab 1. And I'm searching for the

22 page.

23 Your Honours, it is on page 29 of the transcript, of the English

24 transcript. It says -- or it's in the big paragraph -- the second big

25 paragraph, which starts with English voice-over: "The Mujahedin

1 leadership," and it then continues.

2 [Videotape played]

3 MR. NEUNER: There is currently no audio. We'll make a second

4 effort and try to fix this problem.

5 [Prosecution counsel confer]

6 MR. NEUNER: Your Honours, the Prosecution asks whether we can

7 already make now the technical break in order to arrange the audio.

8 JUDGE ANTONETTI: [Interpretation] Regarding the technical issue,

9 when a sequence is being shown, can we make a still out of it? Can we

10 stop the viewing for a moment?

11 MR. NEUNER: Yes, Your Honours, it's possible.

12 JUDGE ANTONETTI: [Interpretation] In that case, when you play the

13 tape, I would like you to stop when we see the person shooting with a

14 pistol.

15 It is now twenty-five to 4.00. We will resume around 4.00.

16 --- Recess taken at 3.37 p.m.

17 --- On resuming at 4.56 p.m.

18 JUDGE ANTONETTI: [Interpretation] Yes. We shall now resume the

19 hearing. And before giving the floor back to the Prosecution, I would

20 like them to tell us more about these videos mentioned in the index which

21 can be found in the binder. At five minutes past 4.00, we note that some

22 videos are not listed, for instance, number 6, which matches 28.98;

23 number 12, 26.29; 15, 24.00; 17, 28.95; 18, 16.76; and 20, 32.70 [as

24 interpreted]. Does the Prosecution intend to view these or not or are

25 you -- have you decided not to show these excerpts?

1 When I say number 6, the transcripts can be found at tab number

2 6; 12, number 12; 15, number 15; 17, tab 17; 18, tab number 20; and 20,

3 tab 20. What is to become of these videos?

4 [Prosecution counsel confer]

5 MR. NEUNER: Your Honours, any tapes which we are not showing

6 today or from this list, which we move on until tomorrow -- today and

7 tomorrow, we withdraw. We will withdraw these tapes without prejudice.

8 For example, tab number 6 in the binder, there's just a surrogate

9 sheet mentioned. For some of these tapes it was not possible for the

10 Prosecution to produce transcripts or translations. Other videos which

11 are behind the tab numbers Your Honours have just mentioned, other videos

12 contain footage of potential witnesses and the Prosecution does not

13 intend to introduce such potential witness statements by way of a video

14 in the current proceedings.

15 For example, there is one video which plays after the events in

16 Dusina. According to the information provided to me from our internal

17 system, in there are a number of soldiers arriving at a -- not collection

18 point, but at a point where a physician is present and they show their

19 wounds. And while they show their wounds, they are talking about what

20 they had just experienced, how they suffered these wounds. And this

21 could be potential witness testimony, and for this reason such footage is

22 currently withdrawn.

23 Other sequences: We have one sequence which is playing at night.

24 It shows burning houses. But since we cannot produce a witness at this

25 late stage to identify exactly where he has taken the footage, where

1 these houses are burning, the Prosecution made - at least for the time

2 being - the call to withdraw them without prejudice.

3 JUDGE ANTONETTI: [Interpretation] Very well. So the videos which

4 I have mentioned, as well as the tabs you have just said that you're not

5 going to show these for a number of reasons. So video number 6, because

6 you don't have a transcript; and the other ones, because this could have

7 been adduced by the witnesses. For instance, there is one video which

8 shows houses which are burning in the night, but you are not able to

9 establish which village is burning and what the date is. So you had

10 rather withdraw these. 6, 12, 15, 17, 18, and 20 will therefore not be

11 shown.

12 And we have now before us this chart which you provided us at the

13 beginning of the afternoon, and we shall now move on and continue showing

14 these last videos.

15 I shall give you the floor now.

16 MR. NEUNER: So the video V000-3764 will be played again with

17 audio. It's transcript -- I provided the page -- the relevant page

18 number earlier.

19 THE INTERPRETER: Could the Prosecutor please repeat the page

20 where the transcript can be found.

21 JUDGE ANTONETTI: [Microphone not activated]

22 MR. NEUNER: The relevant transcript page is 28, starting with

23 the second main paragraph.

24 [Prosecution counsel confer]

25 MR. NEUNER: And as Your Honours have suggested, we'll try to

1 stop the tape at the moment when the person is raising the gun.

2 [Videotape played]

3 THE NARRATOR: The mortar bomb landed close to them. May Allah

4 have mercy upon them both.

5 The Mujahedin leadership got together to establish the reasons

6 for the defeats and the withdrawals. They found that the main reason was

7 the lack of correct and sound Islamic beliefs amongst the members of the

8 Bosnian army.

9 MR. NEUNER: We'll make a second attempt to stop this tape I

10 think in about half a second or one second, when the person is moving his

11 head towards the camera.

12 [Videotape played]

13 MR. NEUNER: The Prosecution has attempted to produce stills.

14 However, the material from which we were working, which was not the

15 original, did not allow us at this stage to produce a still in sufficient

16 quality, so we will resort to this at a later stage. And the whole

17 sequence from the beginning will be shown again.

18 [Videotape played]

19 THE NARRATOR: The mortar bomb landed close to them. May Allah

20 have mercy upon them both.

21 The Mujahedin leadership got together to establish the reasons

22 for the defeats and the withdrawals. They found that the main reason was

23 the lack of correct and sound Islamic beliefs amongst the members of the

24 Bosnian army. In addition to this, there were traitors amongst the ranks

25 of the army, a lack of good military planning and chaotic organisation

1 during operations.

2 The Shura Council for the Mujahedin decided to stop taking part

3 with the army in any of the military operations until the Mujahedin were

4 recognised as an independent battalion within the Bosnian army. The

5 Bosnian army acknowledged the role that the Mujahedin had played so far

6 and their need for men of this kind. Therefore, the Bosnian army

7 leadership agreed to their request and recognised the Mujahedin Battalion

8 as a part of the Bosnian army, over which the banner of [inaudible] could

9 be raised. This gave them the ability to choose their soldiers based on

10 the Islamic Sharia. Thus began a new stage in the war, with increasing

11 responsibility and the need for planning and organisation. The head

12 office for the battalion was in Zenica. The training camp was

13 [inaudible] training camp in the village of Mehurici. The leader of the

14 battalion was Abul-Harith, the Libyan, may Allah have mercy upon him.

15 And the military commander was Wahiudeen, may Allah have mercy upon him.

16 From this point, the Mujahedin launched their first operation, after the

17 recognition of their battalion.

18 This operation occurred in the summer of 1993, under the

19 leadership of Wahiudeen, in the mountains surrounding the town of Vitez,

20 which is inhabited by the Croats and is close to the town of Novi

21 Travnik. A loss of [inaudible] enabled the Mujahedin to capture this

22 area and they killed approximately 40 Croats.

23 JUDGE ANTONETTI: [Interpretation] Very well. So this video which

24 lasts three minutes, begins by providing a commentary, which explains

25 that the Mujahedin have got together for a number of reasons connected

1 with the fact that there are traitors or the fact that they are

2 disorganised.

3 We see a Range Rover bearing a flag. We can assume that the

4 flag is black but one cannot be 100 per cent sure of this. Then we see a

5 Golf car with people inside. We also see a set where we see somebody

6 shooting and a still image where one can identify the same as one could

7 on a photograph. We also see these items which we mentioned in previous

8 video viewings. And we can see the soldiers in a circle praying. And we

9 see the banner of the Jihad, which we've seen already. We have the

10 feeling that we have already seen such sequences in other video

11 broadcasts. The only item we haven't seen before is a young person

12 holding a machine-gun, and this young person is probably no more than 18

13 years old and he has a bandage on his head. He's wearing a bandanna on

14 his head. It would be good to get a close-up of him.

15 Also two other people, the doctor, Abul-Harith. His name is

16 mentioned in the negotiation for the liberation of Turtic [phoen]. Haris

17 and the Egyptian chief and the commentary which goes with it, and we can

18 assume that they have both been killed. We see scenes of fighting and we

19 can hear the words "Allahu Akbar" mentioned. We can see combatants that

20 have been killed and which might be interesting. We can see a prisoner

21 with his hands in his back. We don't know who the prisoner is but it

22 seems quite clear that the prisoner has got his hands over his head.

23 Although we see a date which is the 5th of September, we don't know at

24 which it's the date at which the fight took place. We don't know, but we

25 see this date here, the 5th of September. And during the commentary it

1 is said that during the course of the combat 40 Croats have been killed.

2 On this footage, we also see some rather characteristic white

3 houses which would enable one to identify the location. So this is how

4 one could view these three minutes of video footage.

5 Defence counsel, you have the floor.

6 MR. BOURGON: [Interpretation] Thank you, Your Honour.

7 We shall refer to the comments we made on a former video which we

8 have already seen concerning the Mujahedin, the video entitled "Martyrs

9 in Bosnia." However, Your Honour, as regards this particular sequence,

10 we have noted that several sequences have been collated and these various

11 video sequences were probably shot at a different time. This is why this

12 date of the 5th of September, 1993 might be applied to this particular

13 video footage but we don't have the date of the other video footages. It

14 seems clear that this has been collated, when we see the scene with the

15 soldiers in a circle praying, when we look at the podiums, the podiums

16 are empty, and then we see another scene where the podiums are full of

17 people and people are sitting there.

18 Tomorrow -- also, when we said that the comment has got nothing

19 to do with the images that are shown here, the comment is really quite

20 distinct from what one can see on these pictures.

21 And lastly, Your Honour, there's one sequence which particularly

22 drew our attention. It's the one where you can see -- or rather, where

23 you can hear a shot probably fired from a mortar and you can see a houses

24 that is burning. This may be a important scene, particularly if this

25 video is being adduced into evidence, or this excerpt at any rate. And

1 we don't even know if the combatants are Mujahedins or not in this

2 particular excerpt. These could be Serbs fighting Croats. We wouldn't

3 even know about it. Notwithstanding the fact the only clue provided here

4 are the words "Allahu Akbar"; this is the only item which would enable us

5 to identify the origin of these soldiers.

6 For the foregoing reasons, we feel, Your Honours that, this scene

7 no more than the others should be adduced into evidence. Thank you, Your

8 Honour.

9 MR. DIXON: Thank you, Your Honours. No further comments other

10 than what Mr. Bourgon has already said. Our objections that we've raised

11 already to these same sequences would apply equally to the ones we've

12 just viewed.

13 Thank you, Your Honours.

14 JUDGE ANTONETTI: [Interpretation] Very well.

15 The Prosecution, you have the floor. If you would like now to

16 show the video 5, 1468.

17 MR. NEUNER: Your Honours, would the Prosecution be permitted to

18 make a brief statement, a brief commentary, at least to respond to the

19 Defence's objections? Just briefly.

20 We would just like to add two small details. The Prosecution

21 observed on the tape also a religious leader which was present during the

22 gathering who had a grey shirt or a grey religious coat and was wearing a

23 kind of hat. This person appeared twice, once at the beginning and at

24 the second time he was sitting nearly next -- or on the bench next --

25 three persons next to Wahiudeen. Wahiudeen, a person which we believe is

1 Mr. Alagic, two other persons in uniform, and then this religious leader.

2 Also, the Prosecution wishes to point out that there was

3 mentioning about the head office of the battalion in Zenica. This can be

4 found also in the transcript, on page 29 on the bottom. And there was

5 some kind of gate or fence in front of this headquarter or alleged

6 headquarter, and the Prosecution couldn't quite see the word which was on

7 the fence. It looked like "Hrastova" [phoen]. But the Prosecution just

8 wants to highlight this. Then there was also mentioning made of a

9 training camp in the village of Mehurici. And these are in brief the

10 additional observations of the Prosecution.

11 And just two document which is have already been highlighted last

12 week, PT91, contested exhibit 39 as well as PT92, contested exhibit 40,

13 do show, in the Prosecution's opinion, that the incorporation occurred

14 throughout the month of August, especially in the second document PT92,

15 signed and stamped by Mr. Rasim Delic, the commander of the Army of

16 Bosnia-Herzegovina. It says under (iv) "Final provisions" under number 1

17 "Realisation of the task." What is meant is the incorporation of the

18 unit, El Mujahedin: "Realisation of the task set by the present order is

19 to begin immediately and to be finished not later than 31st August 1993."

20 This, in the Prosecution's position, matches up with the date

21 5th September 1993, which is displayed in the -- at one of the footages

22 shown on this tape, the first operation which was supposedly taking place

23 on the 5th of September.

24 Thank you, Your Honours. We will continue to show the next

25 sequence.

1 Or before, the Prosecution also likes to tender one still of this

2 gathering into evidence. If I might ask the usher.

3 JUDGE ANTONETTI: [Interpretation] So you're asking that this

4 still be admitted into evidence and it corresponds to what we saw at some

5 point during the viewing; is that right?

6 MR. NEUNER: Yes, Your Honour. On the lower right-hand side, it

7 says: "Still taken from V000-3764," which is the current tape. And then

8 it give it is timecode, 1 hour, 17 minutes, 30 seconds.

9 Just the issue of whether the banner contained the wording

10 "Jihad" or "Brigada Jihad" was an issue last Friday, and for this reason

11 the Prosecution has taken this still.

12 JUDGE ANTONETTI: [Interpretation] Regarding the photograph that

13 is being tendered, can we hear the Defence.

14 MR. BOURGON: [Interpretation] Thank you, Mr. President.

15 First of all, this is an exhibit that does not figure on the

16 Prosecution's list of documents, but we are not going to split hairs.

17 This is a product from the video; therefore, Mr. President, we do object

18 to its admissibility because we don't have a witness to tell us what it

19 is about. This fully illustrates what the Defence has been saying,

20 therefore: Who are these people? What is the flag? Who wrote the

21 words? Who produced the video? There are so many questions.

22 I have nothing more to say, Mr. President.

23 JUDGE ANTONETTI: [Interpretation] Thank you.

24 Mr. Dixon.

25 MR. DIXON: Your Honour, in further observations. In our view

1 the admissibility of the still would depend on the admissibility of the

2 video. The two go hand in hand.

3 Thank you.

4 [Trial Chamber confers]

5 JUDGE ANTONETTI: [Interpretation] We are going to mark this

6 document for identification because as you know we will have a final

7 decision about these videos. So let us have an exhibit.

8 THE REGISTRAR: [Interpretation] P115, marked for identification,

9 ID. 115 ID.

10 JUDGE ANTONETTI: [Interpretation] Please continue.

11 MR. NEUNER: Your Honour, the Prosecution also seeks to produce

12 the other stills just suggested by your side a moment ago. And we will

13 continue with the next footage, which is drawn from the tape V000-1468.

14 It is a sequence of four minutes in duration, and it is from

15 Radio TV Belgrade, RTB. It relates again to news and uses -- it's a

16 juxtaposition. It uses excerpts from Sky TV and from BBC, which are

17 shown on the four minutes on this news programme.

18 The problem with the transcript or translation was that at some

19 point in time on this tape there are two languages which can be heard

20 simultaneously, B/C/S and the English original, because there is footage

21 taken from such a company, Sky TV and BBC I just mentioned, and there is

22 also a statement of Robert Fox, who is introduced as a member of the

23 Daily Telegraph, which is a newspaper from the United Kingdom and Robert

24 Fox is a journalist or was a journalist at this time. And also the

25 reporter Jim Fish appears.

1 The transcript can be found in tab 11; however, since the

2 overwhelming majority of the excerpts shown today relate from the

3 so-called reserve list, the Prosecution was only able to provide a kind

4 of summary transcript or translation, and the excerpt is from 2 hours

5 38 minutes, and it says - I think it's the last page of this summary

6 transcript or translation - It says around the footage 2 hours 40

7 minutes, 25 till 2 hours 42 minutes, "English transcription

8 (translations.) The passage is not clear, since both the English

9 original and the Serbo-Croatian translation could be heard

10 simultaneously. Some mistakes might occur in this transcription."

11 This just being said in advance. And the sequence will be played

12 now.

13 [Videotape played]

14 THE INTERPRETER: [Voiceover] ... is this morning on TV stations

15 in the world. Humanitarian flights to Sarajevo will probably be renewed

16 mid-week because an agreement has been signed on safe passage of planes.

17 But in New York, the UN Security Council has voted a new resolution

18 recommending that Yugoslavia be excluded from the United Nations.

19 On the other hand, there are reports on the clear presence of

20 Mujahedin in Bosnia, and at the peace conference in Geneva Muslim, Croat,

21 and Serb leaders have signed an agreement on the protection of

22 humanitarian flights and convoys using land routes. These flights will

23 probably be renewed in mid-week. Passage of humanitarian flights is

24 being ensured.

25 Of course, it is expected that all three sides will abide by the

1 agreement, and in the UN in New York the Security Council has decided to

2 suspend Yugoslavia's right to vote in the General Assembly. However, the

3 final decision should be taken by the General Assembly tomorrow. But

4 this is a clear sign that the international community is angry.

5 "There's a clear sign that we need to cover a long road before

6 joining the international community. This is something that should be

7 borne -- that they should bear in mind and ensure peace and respect the

8 process that Mr. Vance and Owen have been working on so hard in Geneva."

9 The leader of the Bosnian Serbs, Radovan Karadzic, took part in

10 Geneva, where he described the war in Bosnia as a religious war, an armed

11 conflict with the participation of a large number of people from the

12 Islamic world fighting the Orthodox Serbs.

13 "They're getting more and more weapon, not only from Germany but

14 also from Islamic countries."

15 Some evidence was found this week when the BBC prepared a story

16 about the fighters in Travnik, who are allegedly from the Middle East.

17 Reports speak of hundreds of Islamic volunteers or "Mujahedin" in this

18 area. Some were secretly filmed, training the local Muslim forces.

19 Observers are aware of their presence but claim that they're not involved

20 in the conflict. "There are fighters that we don't know about, nor do we

21 know their numbers. There may be many, maybe hundreds. They are

22 providing a good armed support."

23 The Islamic connection is further strained to keep the line

24 between the Bosnian Croats and official forces composed mainly of

25 Muslims. Croats fear what they call Islamic fundamentalism, and the

1 others the territorial claims of the Croats. "From Iran to Europe there

2 is support. They're using special flights to go to Croatia."

3 JUDGE ANTONETTI: [Interpretation] This video lasting four

4 minutes, it appears to be the Novi Sad news bulletin by a speaker. We

5 see a logo with a circle with the words "P/J." This tape refers to the

6 presence of the Mujahedin. There is a compilation of various reports,

7 including Sky News. We see excerpts from discussions in the Security

8 Council - this appears to have taken place prior to the Vance-Owen Plan -

9 and the British ambassador giving a statement is shown. We see a picture

10 of Sarajevo, a building on fire, which apparently is the parliament

11 building. Then there's a passage with a retirement home with an old

12 lady, with someone younger next to her.

13 Then there is a scene showing Karadzic, who speaks of a religious

14 war, saying that the Mujahedin are provided with weapons from Germany and

15 the Arab countries. Then there's a report on the fighters in Travnik,

16 and we see very clearly well-dressed soldiers in military uniform, and

17 according to the report it is in Travnik.

18 Then again there is mention of Robert Fox and scenes of

19 demonstrations.

20 The term "Mujahedin" appears repeatedly during the story, and

21 apparently this took place in Travnik. And the speaker says -- the

22 announcer says that these images were obtained through secret sources,

23 though we don't really know what those sources are. So one has the

24 impression that we are seeing footage of these fighters, but as if taken

25 from above, either by satellite or by planes secretly. It's very

1 strange, because it appears to have been taken with infrared lights

2 during the night. I may be wrong, but that is the impression one gets.

3 I give the floor to the Defence.

4 MR. BOURGON: [Interpretation] Thank you, Mr. President.

5 For all the reasons already mentioned and mentioned by the

6 Chamber, this is a document that has no credibility in spite of the

7 reference to the word "Mujahedin." So this is evidence which would not

8 assist the Chamber in any way to make a ruling regarding this trial.

9 Thank you.

10 MR. DIXON: Your Honour, it's the same point that we've made time

11 and time again, that there's nothing to verify that what is said by the

12 commentator in fact matches what we see in the images. There's nothing

13 which can tie the two together. In our view that means that the whole

14 video, the commentary and the images, should not be admitted.

15 Thank you.

16 JUDGE ANTONETTI: [Interpretation] Thank you.

17 The Prosecution now, do you wish either to respond to what has

18 been said or to introduce the next videotape, 2414, 6, 7, 8, 9, 10?

19 MR. NEUNER: The Prosecution would continue. And the following

20 tapes relate all to looting and destruction. Since these excerpts have

21 been drawn from the reserve list, the Prosecution wants just to announce

22 before these excerpts are being shown that they do not necessarily -- or

23 not all of these excerpts go directly to crimes charged in the

24 indictment. A few excerpts do, but other excerpts relate also to looting

25 or destruction, instances which are in the area of the 3rd Corps or very

1 close to the area of responsibility of the 3rd Corps.

2 And just to highlight this a little bit, the Prosecution has

3 brought a rough map which was shown during the opening statement, just to

4 give a kind of overview or to locate the footages which will be shown

5 now.

6 If I may ask the usher to put this on the ELMO.

7 What can be seen: The coloured area is the area of the

8 3rd Corps, the area of responsibility with Zenica in the centre. The

9 first footage relates to the destruction and looting of Croat villages in

10 Kakanj, which lies to the east of Zenica.

11 The excerpt is drawn from the tape V000-2414, and there is some

12 information provided about the dates on these tapes, and they

13 overwhelmingly come from July 1993 until November 1993.

14 The tape is 42 minutes in its duration. It comes from the

15 Defence counsels in the Blaskic case, and this tape was been handed over

16 to the ICTY in the Blaskic trial as Defence Exhibit D531.

17 The author of the tape is Pejo Orsolic from TV Kiseljak, and an

18 indication of the date of the tape is given in the system. It is 24 June

19 1994.

20 The sequence will be played now.

21 MR. DIXON: Sorry, Your Honour. If I could just indicate that we

22 did receive a copy of this CD. Unfortunately, we were not able to play

23 it in our system. There appears to be a problem with the way in which it

24 was burnt. But in our view, that's no reason to hold up proceedings. If

25 the CD can be shown now and if time is needed at the end, we can request

1 it, but it's unlikely that there will need to be a break. In our view,

2 it's best that we just proceed with it now and then make comments after

3 it has been shown.

4 Thank you, Your Honours.

5 [Videotape played]

6 THE INTERPRETER: [Voiceover] This was taped by brother Pejo

7 Orsolic, a priest in Kraljeva Sutjeska parish, after the ethnic expulsion

8 of Croats from the area of Kakanj municipality.

9 We are in Borcici. This is the house of one of the Marjanovics.

10 These are the results of Muslim vandalism.

11 The Muslim woman who looted this, the goods and these things,

12 managed to escape my camera, so I didn't get a chance to film her.

13 The little that was left after looting committed by various

14 formations is being looted by civilians. Everything is taken away.

15 In the distance is the village of Lukici. You can see burnt

16 houses there without roofs.

17 This is Borcici again, a burnt house.

18 Now we are on the other side of the village of Borcici; similar

19 scenes. We didn't find any Croats among the inhabitants of the village

20 of Borcici.

21 We are passing through Brdo.

22 This is the burnt house of Father Stjepan's sister.

23 We are passing through Seoce.

24 Among the few inhabitants left is this blind old woman.

25 What is it? Don't cry all the time. I'm here.

1 We are in Zajezda now.

2 This is what remains after those who claim to be humane.

3 Bjelavici; the interior of the parish church in Bjel. Here, have

4 a look. During the last visit, the superior found communion wafers

5 scattered and broken on the floor, which the MOS threw out of this sacred

6 place.

7 The glorious television of BiH won't say a word about this.

8 In Bjelavici.

9 This is the cultural level of a humane army: Excrement in the

10 middle of the Catholic chapel in Bjelavici. A humane army. You've seen

11 it well.

12 This is the upper part to have village of Bjelavici. None of the

13 inhabitants are here either.

14 Nela, you've seen quite a lot of such things; right?

15 Twenty days after the fighting ceased, the houses of Croats are

16 still on fire. Where are these people supposed to return? To what?

17 Our humane brothers, the Muslims, civilians, are plundering what

18 remains and the helpless UNPROFOR members are just watching in disbelief.

19 However Mr. Mujo, who is looting, will take it in his stride.

20 And now some clips from Draganici. This is the house of Andrija

21 Tunic.

22 Animals were brought to these rooms on the floor. It seems that

23 they were even slaughtered here, because there are some traces of blood.

24 The room is full of excrement.

25 Look at this. There are traces of blood. And there, look at the

1 window-sill.

2 Dung on the floor.

3 And here on the wall there are traces of blood. Only the light

4 is not good, so I cannot see that well.

5 This here, however, can be seen clearly: Traces of blood.

6 Whose house is this? It is Milos Marko and Ilija's and Marin's.

7 There are three houses.

8 This is the house of Marko Milos.

9 What is this? The wardrobe is empty.

10 This is the house of Simo Dujmovic. We are on the upper floor.

11 Tresevo, in Bara.

12 Come and see this. These are Stations of the Cross from the

13 parish church in Bjelavici.

14 The glass is mostly broken.

15 This was brought in today.

16 A picture of Saint Marko.

17 Open this. This is the mass book from the chapel in Pavlovici.

18 A chalice from Pavlovici.

19 So ...

20 JUDGE ANTONETTI: [Interpretation] This is a videotape lasting

21 42 minutes. There are scenes showing devastated houses and locations

22 which are not part of the indictment, such as Bjelavici and Zajezda, and

23 other locations that are not part of the indictment.

24 Clearly the tape has been made either in the presence of

25 Father Stjepan -- we see houses that were totally destroyed. This was

1 clearly not done in a single day, because the damage in the interior of

2 the houses is such that several individuals needed several days to do it.

3 We also see burnt houses, even houses that are still burning.

4 And according to the commentary this happened 20 days after the actual

5 beginning of the looting. There are houses with smoke still coming out

6 of them. There are several dates appearing on the film. I noted the

7 5th of July, the 6th of July, the 15th of July, the 25th of August, the

8 13th of November, the 15th of November, the 21st of November. And there

9 is snow in the last images and it is the 20th of November, 1993.

10 Then there's the church in Bjelavici, and we see the inside that

11 has been damaged. We are shown a chalice, which is either broken or a

12 hole made in it - we can't see too well - and a mass book.

13 Towards the end of the video, we see people carrying away

14 objects. Whether they are the owners of the buildings, of the houses.

15 We don't know, but with the exception of one lady we only see young men

16 carrying various objects with various means, carriages and cart wheels

17 and -- but we don't see any soldiers at all. We only see civilians

18 carrying all these things in a peaceful atmosphere. Everything is being

19 done very calmly.

20 And this occurred over several days, because we see the dates

21 that appear and the person filming this is on an upper floor filming the

22 people below carrying something and not knowing that they're being

23 filmed.

24 The video of the 20th of November is of a poor quality so we

25 can't see exactly what is happening. There are houses whose owners are

1 named - Simo Dujmovic, for instance - the 13th of July. Also at a

2 certain point in time next to a scene of a looting, there is a blue

3 helmet - we don't know who he is - but we clearly see a UN helmet and he

4 is present, watching what is going on. What emerges from this is there

5 isn't a single locations that is covered by the indictment. That is as

6 much as can be said, in very concise form, but I'm not going to take 40

7 minutes to elaborate on what we've seen.

8 Yes, Mr. Bourgon.

9 MR. BOURGON: [Interpretation] Thank you, Your Honour.

10 As the Chamber has seen, the tapes describing destruction and

11 that seem to be describing looting also has no direct link with the

12 indictment. And we are told that some parts of the videotape would be

13 tied to the indictment, but we don't know which ones. At any rate, the

14 names of villages we have heard are not part of the indictment, as the

15 Trial Chamber has seen or heard.

16 The Prosecution showed us a map to show us and indicate what the

17 area of responsibility of the 3rd Corps was. This was to describe a ROF

18 [as interpreted], and I think that the Prosecution meant that this map

19 provided an overall view without being too specific.

20 This map, Your Honour, is full of mistakes. Let me just give you

21 one example: There were three villages in Orasac. Which one is the one

22 that figures in the indictment? We have no information as regards the

23 area of responsibility of the 3rd Corps. If as the Prosecution alleges

24 this were to be relevant, we don't know what the area of responsibility

25 is, we don't know what distance the front lines cover, we don't know

1 which units are part of the 3rd Corps, we don't know how the 3rd Corps

2 was organised, and we are involved in a trial where the responsibility of

3 the command of the 3rd Corps is at stake.

4 Several dates are mentioned here concerning these pictures we

5 have seen. The beginning is in July 1993 and runs through to November.

6 We don't know exactly which scene is shot at which particular time. We

7 don't know in which town we are.

8 There's a commentary here. We hear somebody giving the names of

9 the towns. Usually when you want to shoot a scene in a village - I've

10 seen other tapes prior to this - usually you film the signpost as you

11 enter the village to give you an indication where you are. None of this

12 appears here. And you would have to trust the person who is speaking

13 without the person actually introducing himself or herself.

14 The commentary, mentioned by Mr. Dixon earlier on. It seems that

15 the comments were added on afterwards, after the pictures were taken,

16 because we can clearly hear at certain stages the sound of this and the

17 sound of the video being shot.

18 Also, 20 days after the fighting, the houses are still burning.

19 It's not because the houses started burning 20 days before that but it's

20 because these houses started burning well after the fighting.

21 We see civilians here. We see a Muslim woman who would have

22 stolen the camera of the person who would have shot the video, Mr. Mujo,

23 who is looting. We don't know anything about Mr. Mujo, who with his

24 wheelbarrow seems to be transporting many objects. People are

25 transporting things without us knowing whether these are looters or not.

1 They are all civilians. There are no military people.

2 We see scenes of looting. We don't know in which villages this

3 looting takes place.

4 For all these reasons, Your Honours, we feel that in the absence

5 of any witness who could identify and authenticate these videotapes,

6 these videotapes cannot be tendered, notwithstanding the fact, Your

7 Honour, that we think that this videotape is totally irrelevant in this

8 particular case.

9 MR. DIXON: [Previous translation continues] ... Your Honours'

10 summary and what Mr. Bourgon has said. Thank you.

11 JUDGE ANTONETTI: [Interpretation] Thank you.

12 It is now five minutes to 6.00. We shall resume -- it is twenty

13 minutes to 6.00. We shall resume around 6.00. And if we are on time, we

14 should finish with all the videotapes today.

15 So we shall resume at 6.00.

16 --- Recess taken at 5.40 p.m.

17 --- On resuming at 6.05 p.m.

18 JUDGE ANTONETTI: [Interpretation] Very well. So the hearing is

19 resumed.

20 Let me turn to the Prosecution. From what I understood, the

21 Prosecution was only going to show one video, number 10; is that correct?

22 2414, 10, a five-minute video footage. Is that correct?

23 MR. NEUNER: Your Honour, the other excerpts from the tape

24 V000-2414 are withdrawn without prejudice, and sequence number 11 has

25 been shown on Thursday or Wednesday, I think Wednesday evening. And the

1 only outstanding remaining sequence would therefore be 24 -- excuse me,

2 yeah -- would therefore be 2414 from part 1, five minutes, with the

3 timecode 1 hour 11 minutes and 10 seconds and then for five minutes.

4 This sequence relates to the Croat population from Kakanj and

5 Vares in November 1993, to be precise on the 4th of November, 1993.

6 It will be played now.

7 THE INTERPRETER: Could the interpreters have the page number,

8 please.

9 MR. NEUNER: The Prosecution cannot provide a page number here

10 because the English translation produced does not contain a timecode. As

11 far as the Prosecution is aware, there is not much to translate, so for

12 this reason it is hopefully possible just to show the sequence. To be

13 shown now.

14 [Videotape played]

15 THE INTERPRETER: [Voiceover] Croats expelled from the territory

16 of Kakanj municipality to Vares.

17 JUDGE ANTONETTI: [Interpretation] So this five-minute video shows

18 the Croats being driven out from Kakanj. You see hundreds of people,

19 men, women, and children. There are not very many elderly people; some

20 young children. You can see some youngsters who are laughing. One

21 doesn't have the feeling that there is any kind of fear or that anybody

22 is panic-stricken. I think these people seem to be waiting for

23 something. Perhaps it's distribution of food or perhaps they're just

24 waiting to move on and go elsewhere. We have no further piece of

25 information. You see no policemen around and no soldier around.

1 At one point you can see a car, which is -- seems to be bearing a

2 white flag. It's a Red Cross perhaps car or flag. We don't know

3 because the car is driving through quite fast, but you can see the flag.

4 There are hundreds of people, perhaps 1.000 people milling

5 around, but nobody seems to be worried by anything in particular. Nobody

6 seems panic-stricken.

7 There is no date here which would enable us to understand which

8 time this gathering of people actually took place. That's as much as I

9 can say as regards this five-minute videotape.

10 The Defence team, you have the floor.

11 MR. BOURGON: [Interpretation] Thank you, Your Honour.

12 I would like to Prosecution to specify something, please. Your

13 Honours, this videotape is being provided in support of which part of the

14 indictment, please?

15 JUDGE ANTONETTI: [Interpretation] This videotape - I'm turning

16 now to the Prosecution - which particular paragraph does it refer to?

17 The perhaps that talks about Vares? And what is this videotape connected

18 to? Which paragraph in the indictment, please? Which paragraph in the

19 pre-trial brief, please?

20 MR. NEUNER: Your Honours, at the end of the first day there was

21 another sequence of very short duration being shown which related to many

22 people being moved to or from Vares, and this was the only additional

23 piece of information which we could find from the video evidence which

24 showed that civilians were being moved to or from Vares. I just recall a

25 discussion relating to this one-minute videotape from TV5, and it was

1 disputed, so to say that, population movements occurred, and this was the

2 only additional video evidence which the Prosecution could identify.

3 JUDGE ANTONETTI: [Interpretation] Yes. I'll give the floor back

4 to the Defence team.

5 I just omitted something. Some people might have been expelled

6 from Kakanj to Vares. I would just like to say that I've seen nobody

7 carrying suitcases or bags. When you leave some place, you usually take

8 some belongings with you, particularly if you have children and young

9 children with you, and you take some baby bottles or some food, and here

10 it seems like nobody is carrying anything. That's as much as we can see.

11 It seems like what we see here would have occurred before the

12 4th of November, the attack on Vares. So maybe this is dated the 2nd,

13 the 3rd, or the 1st of November. We don't know.

14 The Prosecution seems to establish a connection with Vares here,

15 but without any further particulars.

16 MR. BOURGON: [Interpretation] Thank you. On reading the

17 indictment, it is difficult to understand any connection between the

18 videotape we've just seen and any allegation contained in the indictment.

19 And for these reasons we believe, Your Honour, that what we have just

20 seen is irrelevant and for this particular reason should not be tendered

21 into evidence in the course of this particular trial.

22 MR. DIXON: Thank you, Your Honours. Our position is exactly the

23 same. It appears, also looking at the images, that the way the persons

24 are dressed is not consistent with winter dress, which would be more in

25 November time, and in our submission it's probably a time period much

1 earlier than November. There's nothing on the videotape which indicates

2 a time, although my learned friend from the Prosecution seemed to suggest

3 that it was the 4th of November, that there's nothing in the tape or even

4 the inscription on the bottom of the image which indicates a date. And

5 in our view, there being no connection with the only part of the

6 indictment relating to Vares in November, this evidence should be

7 excluded. It's not relevant and it's not authenticated in any way.

8 Thank you, Your Honour.

9 JUDGE ANTONETTI: [Interpretation] Yes. I shall give the floor

10 back to the Prosecution.

11 The Defence alleges an interesting point, which is a valid one:

12 The people shown on the video are dressed in summer clothes, and a few

13 moments ago we saw videotape which was shot in the months of November and

14 you could actually see the snow, and you could even see someone who was

15 putting -- had put a number of things on a sledge, whereas this place was

16 not very far removed from the other one we saw. There might be perhaps a

17 maximum of 50 or 100 kilometres between these villages.

18 Does the Prosecution wish to talk about this and talk about the

19 dates and the locations indicated here, and on the weather conditions on

20 the 4th of November or a few days prior to that?

21 MR. NEUNER: Your Honours, we have no further comment to make.

22 JUDGE ANTONETTI: [Interpretation] Fine. Thank you.

23 We have concluded the viewing of all the videotapes which the

24 Prosecution on request of the Trial Chamber has decided to show. There

25 has been a discussion or debate between the two parties. The Defence

1 team has submitted its arguments; the Prosecution has been entitled to

2 take the floor again. We've had an adversarial debate and the Trial

3 Chamber will render a decision on the tendering into evidence of these

4 videotapes.

5 As far as things stand today, we can conclude that we have

6 finished viewing these videotapes and the tendering into evidence of

7 these videotapes. As I have said, we shall render a decision on this as

8 soon as we have more information about them. What I mean by this are the

9 archivists and the witness who is a high-ranking military who may provide

10 further details as concern this particular issue.

11 That said, the next hearing will be on Wednesday, and we will

12 have this hearing in order to address these other issues, the question

13 relating to the archivists. Unless the Prosecution, as we still have 40

14 minutes left, can tell us more about the archivists and may be able to

15 say that there's no point in convening on Wednesday.

16 If we meet again on Wednesday, I'll be delighted to see you

17 all, of course, but we will then hold a rather short hearing, because one

18 of the Judges is involved in another case. In that case, we will have

19 our hearing between 9.00 and 10.00 in the morning.

20 Unless you have other things to raise or other issues to raise,

21 Mr. Mundis.

22 MR. MUNDIS: Thank you, Mr. President.

23 At this point the Prosecution would certainly be happy to appear

24 Wednesday morning at 9.00, but perhaps a better course of action or one

25 which would be quicker would simply be for us to inform the Chamber and

1 the Defence in writing with respect to the availability of the witnesses

2 for the week commencing the 21st of June.

3 As I indicated earlier, we anticipate that we will have a full

4 slate of witnesses for that week, but I'm not in a position to confirm

5 the precise order of those witnesses until I've had the opportunity to

6 discuss the matter with Ms. Benjamin. Assuming that she is in the office

7 tomorrow, we will be in a position to disclose to the Defence the

8 additional witness statements which were taken. We will be in a position

9 to confirm with the witnesses the precise dates for their appearance

10 here, and we can certainly inform the Chamber and the Defence pursuant to

11 the letter and the same format that has been used throughout the

12 Prosecution case.

13 I don't anticipate having any other issues that would necessitate

14 us being on the record with respect to those witnesses, but we could

15 certainly inform everyone in writing as to the precise order.

16 In accordance with the practice that Ms. Benjamin and I employ,

17 she did ask the witnesses of their availability in the week of the

18 21st of June and all of the witnesses are available in that time period.

19 It's simply a question of which one will go on Monday, Tuesday, et

20 cetera. So once she's in, I expect it would just be a relatively quick

21 process to disclose the witness statements to the Defence, to contact the

22 witnesses, schedule them in, and provide in writing a formal notification

23 letter, perhaps by Wednesday, assuming, again, she's in tomorrow. And

24 that, in our submission, would thereby render it not necessary for us to

25 sit on Wednesday.

1 I do have one other issue relating to this matter: In light of

2 the fact that we have been ordered by the Trial Chamber to bring the

3 archivists here, it might be helpful for some guidance, in terms of

4 whether with respect to those witnesses that we've been ordered to

5 produce, whether the Trial Chamber would also like copies of the witness

6 statements that we've taken. I know that earlier we did provide

7 statements and then we stopped that practice. The Defence may, of

8 course, like to be heard on that point. We are certainly willing to

9 provide any statements taken to the Chamber, if that would be helpful.

10 And I do have one other unrelated issue, but if you'd like to

11 hear from the Defence on the issue of witness statements, we could do

12 that now or I could raise the final issue that I have.

13 JUDGE ANTONETTI: [Interpretation] Well, I shall give the floor to

14 the Defence team.

15 As far as the archivists are concerned - and the Trial Chamber

16 has conferred over this - of course we are very keen to have any written

17 statements which these people may have made. So if you give us these, we

18 will read them very happily before the hearing. The Prosecution may, of

19 course, ask questions to these archivists. We will then have a

20 cross-examination. And the Judges - and I feel that the question that a

21 Judge may have as regards these archivists is, A, how did they take

22 possession of these archives, at what date; how did -- were these

23 archives communicated to them; how were these archives recorded at the

24 time these archives were produced; were the contents of these archives

25 broadcast to the outside world; who accessed the contents of these

1 archives; and according to what you have said, why were there some

2 7th Brigade archives located in another area and the BiH archives were

3 not in the same place? So these will be questions of a purely

4 theoretical nature. We will not address this issue in substance, because

5 they will be asked how they actually got hold of these documents, how

6 they were recorded, and who could access these documents.

7 I'm sure you yourselves will put these questions to them, and the

8 Judges may in that case not ask them anything specific. But insofar as

9 these people have made written statements, I'm sure they have covered all

10 of this ground. So I'm sure the Defence team has something to say about

11 the archivists.

12 MR. BOURGON: [Interpretation] Thank you, Mr. President. No

13 additional observations to make in addition to those made by the Chamber.

14 JUDGE ANTONETTI: [Interpretation] And the other Defence counsel?

15 MR. DIXON: Thank you, Your Honours.

16 The statements, as has been suggested by the Prosecution, should

17 be given, in our view, to Your Honours.

18 I'm grateful.

19 JUDGE ANTONETTI: [Interpretation] Very well. There's general

20 consensus regarding these statements and them being provided to the

21 Defence counsel, of course, in the first place.

22 Your other issue, please.

23 MR. MUNDIS: Thank you, Mr. President. And I will ensure that

24 copies of those statements are provided at the time we inform the Chamber

25 and the Defence as to the precise order.

1 Mr. President, the second issue concerns the documents that were

2 provided pursuant to the Chamber's order concerning the known original

3 signatures of the two accused. During previous discussions with the

4 Chamber's legal officer on this issue, I am now led to believe that there

5 may have been some confusion. We did make available, as Your Honours are

6 aware, two types of documents with respect to both of the accused. The

7 Rule 68/Rule 70 receipts were documents that were retained by the Office

8 of the Prosecutor. Those original signatures came from a receipt binder

9 that Mr. Withopf took care of and which I now have possession of.

10 The arrest packages, however, Mr. President, were entered into

11 the Evidence Unit and there is, accordingly, chain-of-custody documents

12 associated with those folders. This is where I believe the confusion

13 came in. I'm not sure when I discussed this issue with the legal officer

14 if she fully understood that those were actually evidence, which is why

15 they have ERN numbers. And I simply raise this point, Mr. President,

16 because it may be problematic to have originals taken from the Evidence

17 Unit and tendered into evidence. I am fully aware of the need for the

18 originals to be retained, but it is a bit of a problem at this point,

19 particularly with respect to those arrest packages, the turquoise-blue

20 folders, simply because they have been signed out by an investigator from

21 the Evidence Unit and there was an expectation that those would be

22 returned to the Office of the Prosecutor, to be returned to the Evidence

23 Unit.

24 Thank you.

25 JUDGE ANTONETTI: [Interpretation] Mr. Registrar, could you give

1 me the two packages with the Kubura and Hadzihasanovic signatures that we

2 gave you last time.

3 Last time you gave us in two folders several documents. And last

4 night, in fact, I asked myself regarding the arrest warrants that were

5 signed by the accused. According to the Rules, the arrest warrant is

6 executed by the Registrar. When the Confirming Judge confirms the

7 indictment and signs the arrest warrant, which I did some time ago. The

8 arrest warrant is given to the Registrar, who is depository of it. And

9 the Registrar, according to the Rule, makes certified copies, which are

10 authenticated, and these copies are then given to the States for the

11 execution of arrest warrants.

12 Therefore, the Prosecution may have a copy, but the original is

13 kept by the Registrar. If the Prosecution does have a certified copy,

14 let us take the hypothesis that the accused is arrested and he is

15 notified of the arrest warrant. I have one here in front of me.

16 Normally this arrest warrant, in my understanding, should be returned to

17 the Registrar. I don't understand why the Prosecution should keep an

18 act, a document, which is an integral part of the procedure, because the

19 arrest warrant goes together with the indictment and theoretically, when

20 the formalities regarding notification of arrest warrant have been

21 completed, it should be returned to the Registrar. And in fact, last

22 week I wondered, I asked myself, how is it possible that the Prosecution

23 should have this document in its possession?

24 In theory, after the notification, the Prosecution should send

25 the original back to the Registrar and keep a copy for itself. But you

1 kept the original. And you are telling us now that it should be returned

2 to you. This does not seem to me to be at all in line with the spirit

3 and letter of the Rules, which says that it is the Registrar who executes

4 the arrest warrant and when the persons -- a suspect is arrested, the

5 arrest warrant should be returned to the Registrar.

6 However, amongst the documents that you gave us there are some

7 that have nothing to do with the arrest warrant, and of course in that

8 case, it is normal that you should keep them.

9 So, Mr. Mundis, regarding the question of the arrest warrant,

10 could you enlighten the Chamber regarding the fact that you have in your

11 possession the original of the arrest warrant, or -- if you can, of

12 course, answer that question.

13 MR. MUNDIS: Mr. President, I will add that to the list of other

14 information that I need to provide to the Trial Chamber. I'm certainly

15 in no position to answer the question as to how that document or sets of

16 those two folders of documents came into the possession of the

17 Prosecution, nor am I familiar with the actual process of how individuals

18 are either arrested or surrendered to the custody of the Tribunal, what

19 happens to those original documents, whether the copies that were in our

20 Evidence Unit, perhaps, were certified original copies that were

21 retained. I simply am not in a position to articulate that. But I will

22 certainly make the requisite inquiries and inform the Trial Chamber and

23 the parties as soon as I'm able to do so.

24 JUDGE ANTONETTI: [Interpretation] Very well.

25 Apart from this question of arrest warrant, it would be

1 desirable, as everything has been recorded, that you keep in touch with

2 the registrar and indicate which are the documents that you feel should

3 be returned to you, because there's the arrest warrant, which in my

4 opinion should be kept by the registrar, and then there are other

5 documents that we have taken. But what mattered for us was the

6 signature, and that is quite sufficient for us. So see with the

7 registrar and then orally next week you can tell us which are the

8 documents that you wish to regain possession of.

9 But also, we would like you to let us know how it is that you

10 have the original of the arrest warrant, whereas it would be normal for

11 the Registrar to keep the original and to be the depository of the same.

12 Thank you, Mr. Mundis.

13 If our understanding is correct, you will be sending us a

14 schedule for the hearings from the 21st and in that schedule you will

15 indicate the witnesses that you have contacted through Ms. Benjamin and

16 other witnesses too who will appear as of the 21st. And in view of that,

17 there's no need for us to meet again on Wednesday.

18 Also, the Chamber would like to raise another issue, but to do

19 that let us go into private session, Mr. Registrar, please.

20 [Private session]

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4 --- Whereupon the hearing adjourned at 6.55 p.m.,

5 to be reconvened on Monday, the 14th day of

6 June, 2004, at 2.15 p.m.

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