TRIAL CHAMBER I
Judge Almiro Simões Rodrigues, Presiding
Judge Fouad Riad
Judge Patricia Wald
Mr. Hans Holthuis
4 May 2001
DECISION ON THE DEFENCE MOTIONS TO EXCLUDE EXHIBITS IN REBUTTAL AND MOTION
The Office of the Prosecutor:
Mr. Mark Harmon
Mr. Peter W. McCloskey
Mr. Nenad Petrusic
Mr. Tomislav Visnjic
On 13 February 2001, the Defence filed a “Motion to exclude alleged Statements
of the Accused” (the “Motion”) for consideration by this Trial Chamber (“The
Chamber ”) of the International Tribunal for the Prosecution of Persons Responsible
for Serious Violations of International Humanitarian Law Committed in the
Territory of the Former Yugoslavia since 1991 (hereinafter “the Tribunal”);
the Prosecution responded to the Motion on 14 March 2001 (hereinafter “the
Response”) and the Defence filed a reply on 16 March 2001 (hereinafter “the
Reply”). Several objections to evidence introduced in rebuttal were thereafter
orally raised by the Defence. On 5 April 2001, the Defence additionally filed
a Motion for Continuance in respect of one particular piece of evidence. The
parties submitted and summarised their arguments in a hearing that took place
on 11 April 2001.
THE TRIAL CHAMBER, HAVING CONSIDERED the written and oral submissions
of the parties, has rendered a confidential decision on 25 April 2001.
IT HEREBY ISSUES A REDACTED VERSION THEREOF.
- In its Motion, the Defence objects to the admission of four radio intercepted
conversations (“intercepts”) attributed to the accused, on two grounds. It
first claims that the conversations should be considered as statements of
the accused within the meaning of Rule 66 (A)(i) and should have been disclosed
accordingly. The failure to do so caused prejudice to the Defence, that can
only be repaired by excluding the evidence. Second, it argues that the intercepts
are not admissible in rebuttal and should have been tendered into evidence
during the case-in-chief .
- On 19 March 2001, the Chamber orally ruled that the intercepted conversations
were not “statements of the accused” within the meaning of Rule 66(A)(i) but
qualified as “documents” considered in Rule 66(B). It noted that the Defence
did not make any request for disclosure under Rule 66(B) and concluded that
the Prosecution was under no obligation to disclose the intercepts concerned.
Regarding the second ground of objection, the Chamber indicated that the parties
would have the opportunity to present their arguments regarding the admission
of the documents at the rebuttal and rejoinder phases of the proceedings.1
- In addition to the intercepts mentioned in the Motion, the Defence orally
objected to a series of exhibits introduced in rebuttal, on the ground that
they either should have been introduced during the case-in-chief, or that
they constituted fresh evidence that could only be admitted through a motion
to reopen the case.
- The list of exhibits objected to is not disclosed in the present decision
as many of them were submitted under seal.
- Several witnesses were heard in relation to these exhibits. Admission of
their testimony will therefore also be considered. Witnesses French, EE, BB,
FF, GG, HH , W, Z, and Frease are especially concerned.
- The Defence also objected to the admission in rebuttal of Witness II’s
- The Motion and oral objections raise the issue of the scope of admission
in rebuttal as well as the conditions under which fresh evidence can be admitted
at this stage of trial.
- The Appeals Chamber, confirming the Trial Chamber’s finding in the Celebici
case,2 ruled that “rebuttal
evidence must relate to a significant issue arising directly out of defence
evidence which could not reasonably have been anticipated”.3 It reasserted that “‘where it is reasonably foreseeable
by the Prosecution that some gap in the proof of guilt needs to be filled
by the evidence called by it’, it is inappropriate to admit it in rebuttal,
and the Prosecution ‘cannot call additional evidence merely because its case
has been met by certain evidence to contradict it’”.4 The Appeals Chamber added: “( w(here such evidence could
not have been brought as part of the Prosecution case -in-chief because it
was not in the hands of the Prosecution at the time, this does not render
it admissible as rebuttal evidence. The fact that evidence is newly obtained
, if that evidence does not meet the standard for admission of rebuttal evidence
, will not render it admissible as rebuttal evidence. It merely puts it into
the category of fresh evidence, to which a different basis of admissibility
- The evidence involved in the Celebici case included a witness whom
the Prosecution tried to call in order to produce and authenticate a release
form signed by the accused Delalic. It was intended to rebut evidence presented
by the Defence which indicated that Delalic would sign release documents only
in exceptional circumstances . The Trial Chamber excluded the exhibit on the
ground that its probative value was so low that it could not possibly rebut
the defence contention. The Appeals Chamber deemed that “(t(his assessment
was reasonably open to the Trial Chamber”.6 The Prosecution also tried to call an investigator from the Office
of the Prosecution (“OTP”) in order to introduce documentary evidence, not
previously available to the Prosecution, but that also had an independant
rebuttal basis. The evidence was intended to rebut the Defence witnesses testimony
which asserted that the accused Delalic “had no de facto, or any other
authority whatsoever”.7 The Appeals
Chamber deemed that the question of whether the accused had authority in the
camp was a fundamental part of the case of the Prosecution and, as such, should
have been put before the Trial Chamber during the case-in-chief.8
- The Appeals Chamber’s ruling is consistent with former rulings made by
Trial Chambers. As the Trial Chamber in the Kordic case pointed out,
“the Tribunal practice has been to limit such evidence strictly to matters
which were not already covered in the Prosecution case”.9 The Trial Chamber ruled that “only highly probative evidence
on a significant issue in response to Defence evidence and not merely reinforcing
the Prosecution case in chief will be permitted”.10
- Following the Appeals Chamber’s ruling, this Chamber will normally admit
evidence in rebuttal if it is significant and if it arises directly out of
Defence evidence which could not reasonably have been anticipated. This test
clearly precludes evidence of low probative value or evidence relating to
a fundamental part of the Prosecution’s case-in-chief from being admitted.
- With respect to new evidence not available during the case-in-chief, the
Appeals Chamber, confirming the Trial Chamber’s decision in the Celebici
case, ruled that fresh evidence could justify the case being reopened
if two conditions are met:
The Prosecution must show that the evidence would not have been
found with the exercise of reasonable diligence before the close of the
As to such evidence, the Trial Chamber should exercise its discretion
as to whether to admit the evidence by reference to the probative value
of the evidence and the fairness to the accused of admitting it late in
- This Chamber has been confronted with a variation on the Celebici principles
with regard to several pieces of evidence. In short, these items were not
available to the Prosecution during its main case, they are significant and
they do rebut specific parts of the Defence case. Had they been available
to the Prosecution earlier , they should certainly have been required to introduce
it in the main case. Under the Celebici test they might be the subject
of a motion to reopen the main case, but this appears a formality which, as
we near the end of the trial, can legitimately be dispensed with, where the
evidence truly does rebut the Defence case. Thus we have chosen in such cases
to permit its admission as part of the Prosecutions rebuttal .
B. LAW APPLIED TO THE FACTS
1. Intercept with Obrenovic, used during cross-examination of the accused
a) Statement of facts
- The first intercept refers to a conversation that allegedly took place
between Obrenovic and the accused, later replaced by Jevdevic, on August 2,
1995.12 The intercept was used
by the Prosecution to impeach the accused. On 31 October 2001, as the cross-examination
of the accused was nearing the end, the Prosecution asked General Krstic whether
he had “ordered the killings of any Muslims between July 11 and November 1”.
The accused denied giving any such orders.13 The next day, the Prosecution sought admission of the recorded
intercept between Krstic and Obrenovic dated 2 August in which the accused
is said to utter “kill them all”.14
When confronted with this intercept, the accused denied that the conversation
took place and called it a “montage”. The intercept was disclosed to the Defence
the day before it was used at trial.15
The Prosecution argued that it was entitled to have the intercept
admitted in rebuttal because General Krstic had denied that the said conversation
had taken place.16 The Prosecution
admitted that it had been in possession of the intercept “for a while”.17 It specified in its Response that it became aware of
the intercept in July 1998 and was only able to establish the date on which
the conversation took place in December 1998.18 The notebook containing the intercepted conversation was obtained
on 24 April 1998 .
- A series of exhibits were introduced in relation to this intercept. In
addition , several witnesses were heard on the matter. The testimonies of
Witnesses French , EE, BB, HH and Z were exclusively devoted to this intercept,
while part of witnesses FF and GG’s testimonies also touched upon it.
b) Legal findings
- The Prosecution first contends that the present case should be distinguished
from the Celebici Appeal’s decision.19 It claims that the Prosecution evidence in Celebici was
addressing broad issues against three defendants who had not testified.20 To the contrary, the Chamber is dealing here with “specific
statements made by the defendant”. Hence, the Chamber must decide “whether
it should exercise its broad discretion and admit evidence in rebuttal that
directly contradicts the testimony of the Defendant given under oath.”21 It relies on Rule 89(C) and (D) as well as Rule 90(D)
to justify the Chamber’s broad discretion in admitting evidence in rebuttal
and claims that the Chamber should take into account several factors in exercising
its discretion. In particular, it should balance the “probative value of the
evidence” and “the need to ensure a fair trial which necessarily includes
the consideration of the possible prejudice to the accused and the goal of
ascertaining the truth”.
- The Defence contends in its Reply that nothing justifies the distinction
the Prosecution tries to make between the Appeals Chamber’s Celebici decision
and the case at hand.
- The Chamber does not see any reason why, in addressing the case at hand,
it should depart from the Appeals Chamber’s ruling in the Celebici case.
i) Evidence touching upon a fundamental part of the Prosecution
- The Defence claims that the intercept and complementary exhibits relate
to “a fundamental part” of the Prosecution case. First, they relate to murders
committed during the time period covered in the indictment (11 July to 1 November).
The intercept also touches upon the accused’s mens rea “which is a required
element for the crimes of genocide, crimes against humanity, and violation
of the laws and customs of war charged in the Amended indictment”.22
- The Prosecution argues that the intercept does not relate to the core of
the case. It explains that the indictment distinguishes between the widespread
and systematic killings that occurred between 11 and 18 July 1995, and the
“opportunistic” killings that occurred thereafter until 1 November 1995. It
claims that the core of the Prosecution’s case is concerned with the mass
executions. The intercepted conversation took place on 2 August 1995, a period
of time for which no evidence of mass killings was adduced . In the Prosecution’s
view, the intercept would merely show “General Krstic’s continued personal
involvement in the killing of Muslims” and, “by the use of the pejorative
term ‘Turks’, his attitude towards them”.23 The Prosecution concludes that, “whilst not fundamental to the
Prosecutor’s case ”, the intercept has a “significant probative value” and
would thus “assist the Chamber in ascertaining the truth”.24
- The Chamber however notes that, once admitted, the intercept could constitute
evidence with respect to the intent of the accused at the time of the commission
of the crimes. Since the accused is charged with special intent crimes such
as genocide and persecution, on the basis of Articles 7(1), 7(3) and 4(3)
of the Statute, the Chamber finds that the intercept touches upon a fundamental
part of the Prosecution’s case.
ii) Evidence that does not directly arise out of defence
evidence or which could not reasonably have been anticipated
- The Defence claims that “[n]othing in General Krstic’s direct testimony,
or in the testimony of any other Defence witness, dealt with the 2 August
conversation between him and Obrenovic”. This matter was first raised by the
Prosecution during cross-examination and cannot be considered as arising directly
out of Defence evidence .25
- The Prosecution submits that the true meaning of the intercept which was
susceptible to several interpretations, some incriminating, others less so,
could not come out before the accused’s cross-examination. The conversation
took place on 2 August. The Prosecution admits that it does not have any clear
evidence that mass killings occurred at the time and that no evidence was
put before the Chamber on the matter . It further admits that, in view of
the evidence available to it at the time, “ the intercept lent itself to the
possible interpretation that General Krstic was merely making rhetorical comment
telling Major Obrenovic to kill the enemy to encourage Major Obrenovic to
fight on”.26 The Prosecution
concluded that “the significance of this intercept could not be determined
until General Krstic was confronted and cross-examined about it”.27
- The Prosecution argues that the test of reasonable foreseeability “does
not refer to specific answers given by the Defendant in cross-examination
in response to evidence aimed at impeaching him and which are not fundamental
to or filling ‘gaps’ in the Prosecution’s case”.28 The Prosecution submits that the test of “reasonable
foreseeability” should not be interpreted as requiring the Prosecution “to
anticipate (...( every possible answer that a Defendant might give to every
question put to him in cross-examination ”.29 The Prosecution explains that it could not reasonably foresee
that General Krstic would deny the very existence of the intercept and claim
that it was a pure montage.
- The Chamber finds that the evidence which the intercept intends to rebut
arose out of a question asked by the Prosecution which was intentionally phrased
so broadly as to encompass the entire case against the accused. In view of
the interview Krsti c gave to the OTP as well as the debates held at the pre-trial
stage, the Prosecution should have anticipated that, confronted with the question
whether he ordered any killings between July 11 and November 1, the accused
would deny any such order. In fact, the Chamber notes that the Prosecution
expressed its intention to tender the item into evidence during its rebuttal
case even before the question was asked of the accused.30 The Chamber further notes that the Prosecution was in
possession of the evidence before the start of the case-in-chief and decided
not to use it. It appears that the Prosecution made the tactical decision
to use it during cross-examination rather than in the case -in-chief, as explained
in its Response31 and as further
confirmed by Witness Butler on 23 March 2001.32 The Prosecution surely intended that, should the intercept be
admitted as evidence , it be used for more than the mere purpose of testing
the credibility of the accused . The admission of such an explosive intercept
would inevitably be viewed as going to the heart of the case, the accused’s
mens rea, despite the fact that its probative value was openly doubted
by several witnesses.33
- The Chamber concludes that the exhibits and testimony related to the intercepted
conversation are not admissible at this stage of the trial.
- As a result, the exhibits adduced in support of Witness French’s testimony
are excluded as they are not relevant. Prosecution exhibits P838, P839 and
P840 are therefore also excluded.
Intercepts between Krstic and Popovic and other background intercepts
a) Statement of facts
- On 17 January 2001, the Prosecutor disclosed to the Defence three additional
intercepted conversations dated 2 August 1995 and informed the Defence of
its intention to tender them into evidence in its rebuttal case.34 Two of these intercepted conversations allegedly took
place between General Krstic and Lt. Colonel Popovic.35
- The first intercepted conversation took place at 1240 hours. The accused
allegedly requests Lt. Colonel Popovic to bring Bosnian Muslims who fled to
Serbia back to Eastern Bosnia. In the second intercept, at 1300 hours, one
participant clearly introduces himself as “Krstic” and Lt. Col. Popovic uses
the term “parcels”, a term used in other intercepts as referring to Muslim
prisoners. The third intercepted conversation allegedly took place on 2 August
1995 between General Krstic and a person called Mandzuka and indicates that
about 2000 Muslims escaped to Serbia.36
- On 21 March 2001, the Prosecution specified that the tapes containing these
intercepted conversations were obtained by the OTP on 19 October 2000 through
a search conducted by another team of the OTP. The Krstic investigative team
became aware of the tapes only in early November.37 The full notebook, in which the conversations with Popovic
are transcribed, was received by the Prosecution on December 1338 and was disclosed to the Defence on January 26.39 Hence, the Prosecution was not in possession of these
documents at the time the accused was cross-examined. The notebook in which
the conversation with Mandzuka is transcribed was obtained by the OTP on 24
- In view of the additional information provided by the Prosecution on 21
March 2001, the Defence argued that the intercepts qualified as fresh evidence
and that admission should have been sought through a motion to reopen the
- On 20 March 2001, the Prosecution tendered three additional conversations
that allegedly took place between Col. Beara and Jevdic or Stevo on 1 August
1995. These documents were received by the Prosecution on 13 December 2000.
These three intercepts , as well as the intercepted conversation that allegedly
took place between Krstic and Mandzuka, refer to Muslim men who fled to Serbia
and that the VRS tried to bring back to Bosnia. The Prosecution sought to
rely on them to provide context and meaning to the two intercepts, which presumably
involve Krstic and Popovic. This Chamber will thus refer to them as “Background
- A series of exhibits relating to the conversations that alledgedly took
place between Krstic and Popovic were introduced through witnesses FF and
- Other exhibits were introduced in relation to the Background Intercepts.
In addition, Witness W’s testimony was exclusively devoted to the Background
Intercepts , while part of witnesses FF and GG’s testimonies also touched
b) Legal findings
- According to the Prosecution, the accused admitted that Lt. Colonel Popovic
played a major role in the mass executions but claimed that he had no personal
contact with him during the critical events. The Prosecution argues that the
abovementioned intercepts would impeach the accused’s sworn testimony and
“demonstrate clearly that General Krstic and Lt. Colonel Popovic were communicating
and working together on the date in question”.42
- The Chamber notes that General Krstic stated during his testimony that
he did not have any contact with Lt. Col. Popovic on August 2.43 The accused also acknowledged Popovic’s participation
in the mass killings44 and even
claimed that he attempted to take disciplinary measures against him.45
- The Chamber also notes that the Prosecution attempted to impeach the accused
on the matter. Several exhibits were shown to the accused during cross-examination
in order to prove that he had continuous contacts with Lt. Col. Popovic. The
intercepts concerned here were not presented during cross-examination because
the Prosecution was not in possession of these documents at the time.
- The Chamber finds that the evidence tendered here constitutes fresh evidence
that directly rebuts evidence introduced during the Defence case. The Chamber
is satisfied that the Prosecution made reasonable efforts to obtain intercepted
conversations of the VRS during the period of time covered by the indictment.
The Chamber also finds that the Prosecution could not reasonably anticipate
that Krstic would deny altogether that he had contact with Lt. Col. Popovic
during the critical period and that this would become a contested issue in
the case. Even less could the Prosecution be expected to specifically anticipate
that the accused would deny speaking to Popovi c on 2 August 1995. For those
reasons, the Chamber admits the intercepts between Krstic and Popovic as fresh
evidence admissible in rebuttal.
- By contrast, the Chamber finds that no independent ground exists for admission
of the Background Intercepts in rebuttal. The Chamber finds that the intercepts
with Popovic are sufficiently clear without reference to any other evidence.
The exhibits and testimony relating to the Background Intercepts are therefore
Objections to the testimony of Witness II
- On 23 March 2001, Witness II testified that the accused was appointed Commander
of the Drina Corps at a ceremony at the Drina Corps Command in Vlasenica on
13 July . The Defence objected to the admission of this testimony in rebuttal.46 It contended that the issue of the date when General
Krstic became commander of the Drina Corps was an element of command responsibility
charged against the accused in the Amended Indictment and pertained to a fundamental
aspect of the case.47 It further
argued that the Prosecution was aware of Krstic’s position on the matter since
he expressly commented on it during his interview with J-R Ruez, which took
place before the beginning of the trial. It was therefore highly foreseeable
that the issue would arise.48
The Defence also emphasised the difficulties triggered by its need to counter
critical evidence presented for the first time at this stage of the trial,
when it thought that the matter had already been dealt with.49
- The Defence recognized that the Prosecution had not located Witness II
until the case-in-chief was completed. It nevertheless argued that the evidence
did not qualify as rebuttal and no motion to re-open the case had been submitted
by the Prosecution.
- The Prosecution claimed that the debated testimony touched upon a point
that turned out to be a crucial issue at trial, i.e. when the accused became
Commander of the Drina Corps. It also noted that General Krstic did not mention
any handover ceremony in his interview with J-R Ruez and that this detail
had been raised for the first time during the testimony of the accused who
said that the ceremony had occurred on 20 or 21 July at the Han Kram restaurant.50
- The Chamber finds that the Prosecution should have anticipated, in view
of the pre-trial briefs and the accused’s interview with Jean-René Ruez, that
the date he was appointed commander would be a contested issue at trial. Witness
II is evidence that should have been presented during the case-in-chief, had
it been available.
- However, the Chamber notes that the Prosecution made diligent efforts to
interview the witness but was not able to do so before December 2000. The
Prosecution provided the Defence with the information about Witness II shortly
thereafter.51 The Chamber is
satisfied that the Prosecution exercised due diligence to obtain Witness II’s
- The Chamber also notes that Witness II’s testimony is significant with
respect to the object of the ceremony that allegedly took place on 13 July
1995, a point which was extensively debated during the Defence case. As such,
Witness II’s testimony rebuts specific parts of the Defence case. The Defence,
having presented evidence during its case, is deemed to be sufficiently prepared
to meet Witness II’s testimony . The Chamber thus finds that the Defence suffered
no prejudice from the belated admission of the evidence.
- The Chamber concludes that Witness II’s testimony is fresh evidence admissible
- Two exhibits were tendered into evidence in the context of Witness II’s
testimony . The Chamber admits these exhibits as they are mere extracts of
previously admitted evidence.
4. Examination of an investigator about statements given by a protected
a) Statement of facts
- On 8 January 2001, the Prosecution filed its list of rebuttal witnesses.
Both an OTP investigator and Witness A were listed; the investigator was scheduled
to testify about the fact that General Krstic was appointed commander on 13
July. Witness A was supposed to testify both as to the fact that Krstic was
appointed on 13 July and that Krstic was informed about the killings before
20 July. Two statements of Witness A were taken and were disclosed to the
Defence on 17 January 2001.52
Witness A was unable to testify.
- On 21 March 2001, the Prosecution sought to have the investigator who interviewed
Witness A testify about Witness A’s statements, on the ground that he was
present at the time the statements were made and could properly recount what
had been said .53 The Prosecution
indicated at this stage that the investigator would testify both on Krstic’s
date of appointment as a Corps Commander and as to the date the accused found
out about the killings.54 However,
the Prosecution indicated a day later55
that the investigator was not present during the first interview.
b) Legal findings
- On 21 March, the Defence objected to the testimony of the investigator
as well as the admission of Witness A’s statements on the ground that it was
hearsay, and therefore unreliable evidence,56 and also that it was improper rebuttal evidence.
- With respect to the argument of inadmissible hearsay evidence, the Prosecution
argued that the statement met the requirements of Rule 92 bis and that
the testimony would merely corroborate evidence that had already been or would
be adduced .57
- The Chamber orally authorised the Prosecutor to call the investigator but
requested that details be given with respect to the conditions under which
the interviews took place as well as the presence of the investigator.58 Once informed that the investigator was not present
during the first interview, the Chamber found that the Defence could not properly
cross-examine the investigator regarding the first interview and limited the
investigator’s examination to the second interview.59 By so doing, the Chamber indicated that the first statement
was inadmissible hearsay evidence .
- With respect to the argument of improper rebuttal, the Defence objected
for the same reasons as those previously mentioned.60 The Defence further noted that Witness A was interviewed
four months before the Prosecution closed its case-in-chief.
- The Chamber recognises that it falls within the Prosecution’s discretion
to assess the readiness of a witness to appear and the opportunity to call
him/her to testify. It credits the Prosecution’s claim that Witness A’s statement
could not be adduced separately without being corroborated by another witness.
The deposition of Witness II constitutes a new element, which the Prosecution
could not have anticipated and that justifies admission of the statement.
The Prosecution disclosed the statements to the Defence on 17 January 2001,
which gave the Defence sufficient time to prepare .
- Hence, the Chamber rules that the statement and testimony of the investigator
regarding the second interview are fresh evidence admissible in rebuttal.
The first interview should be excluded as inadmissible hearsay evidence.
- As a result, the Chamber only admits Prosecution exhibits relating to A’s
5. Objections to the operational directive of the Main
Staff dated 1992
- On 4 April 2001, the Defence objected to the admission of an operational
directive signed by General Mladic in November 1992.
- On 23 March 2001, the Prosecution announced that it intended to use the
directive to rebut, through its military expert Richard Butler, the testimony
of the defence military expert, Radinovic, who stated that the objectives
of the VRS in 1992 and 1993 were purely defensive.61 It then limited its use to one paragraph, dealing with
the treatment of Zepa, which was read out during the cross examination of
the expert Radinovic in his rejoinder testimony . The extract indicates that
the VRS intended, at the time, to expel the Muslim population from Zepa. The
Prosecution explained that the directive, by showing that the intent to expel
the Muslim population from Zepa was already expressed in 1992 , would directly
rebut the expert witness’ statement that General Krstic always urged his troops
to comply with international humanitarian law. 62 The Prosecution further requested that the document
be admitted in its entirety, on the ground that documents of this nature can
best be understood if they are read as a whole.63
- The exhibits here concerned are P883 and P883/b.
- The Defence objected on the ground that the directive was a long document
and referred to events that took place in 1992, a time period that had never
been the subject of evidence in the trial, and certainly not during the rejoinder.64 The Defence claimed that to include the events of 1992
would constitute an extension of the subject matter of the case which would
in turn require an extension of time for them to prepare an adequate defence.65 The Defence accordingly filed a Motion for Continuance
on 5 April 2001. It further claimed that the document was not properly authenticated.66
- The Prosecution explained that the document, although in the hands of the
OTP since 1998, had only been translated into English in December 2000.67
- The Chamber rejects the argument that the time period of 1992-1995 was
never considered at trial. To the contrary, many witnesses, including the
military experts for both sides and the accused, have referred to this period
of time, principally as background for the more recent events that are the
focus of this Trial. The Judges have also asked questions about this period
on several occasions. In fact, the Chamber finds that the document, which
indicates the Serb strategic objectives as of 1992 , is clearly critical in
a case including charges of genocide, persecution and deportation . Such a
document should have been adduced during the case-in-chief and the Prosecution
cannot reasonably claim that Witness Radinovic’s statements about the VRS
defensive objectives constitute evidence that could not be reasonably anticipated.
In addition , the document, once admitted, would not be limited to its mere
rebuttal purpose , but would go to the core of the case, especially in view
of the counts of deportation or forcible transfer charged against the accused
in the Amended Indictment.68
To admit the evidence as rebuttal would thus amount to deviate from the purpose
underlying the rule on admission of evidence in rebuttal.
- Nor does this document qualify as fresh evidence. The OTP was in possession
of the directive since 1998 and, for its own reasons, did not prioritise the
translation . This argument, especially in view of the author of the directive,
cannot qualify as a ground for admission as “fresh” evidence.
- Prosecution exhibits P883 and P883/b are therefore not admitted.
Objections to two documents of 12 July from the Zvornik Brigade
- The Prosecution tendered into evidence two reports seized from the Zvornik
Brigade headquarters as well as a map, in order to rebut the accused’s testimony
that he did not know Muslim prisoners were being captured by the VRS on 12
- The exhibits here concerned are:
a daily combat report of the Zvornik Brigade dated 12 July (P877, P877/b);
an intelligence report to the Drina Corps command of 12 July (P878, P878/b);
a map of the southern portion of the Drina Corps area of responsibility
- The Prosecution admitted that it had been in possession of the documents
for a while and that they were mistakenly passed over by the military expert
Richard Butler when completing his report.70 The documents were communicated to the Defence on 13 February
- The Defence objected to the admission of the evidence on the ground that
the accused had already spoken about the issue during his interview with Jean-René
Ruez and that the matter therefore did not directly arise out of the Defence
- The intelligence report (P878), dated 12 July, was transmitted to the Drina
Corps command on 13 July at 1000 hours. The Prosecution submits that the accused
must have received this document. The document reports that members of the
column “are giving themselves up to the MUP and the VRS”. The Prosecution
claims that the document would very specifically rebut the accused’s response
to a question asked by Judge Wald in which he claimed to have no knowledge
of prisoners being captured before 17 July 1995.73
- The daily combat report (P877) states that a unit from the Military Police
was sent in to the area on 12 July 1995 and indicates that a detachment of
the Zvornik Military Police, one of General Krstic’s subordinate units, was
working in the Konjevi c Polje area at the time. This would prove General
Krstic’s knowledge of Muslim men being captured. It would also rebut the defence’s
contention that no Drina Corps forces were present in the area on 12 July.
- The Prosecution further contends that the document was provided to the
Defence on 13 February 2001,74
which gave it ample time to prepare. It also points out that the issue raised
in the documents is a significant one.
- The Chamber finds that the intelligence report is specific enough to directly
rebut a question asked by a Judge during the Defence case. The Prosecution
cannot be expected to anticipate the Judges’ questions and it is fair to admit
in rebuttal evidence that specifically relates to the answer given to a Judge’s
question. The daily combat report, on the other hand, relates to the units
present in the area on 12 July and does not immediately refer to a question
asked by a Judge. It rather goes to the responsibility of the accused for
acts committed by his subordinates and should have been tendered into evidence
during the case-in-chief. The Chamber therefore admits the intelligence report
(P878) and excludes the daily combat report (P877) as well as the map (P879).
Chain of custody of all the intercepts used
- The Prosecution has tendered into evidence a number of exhibits aiming
to authenticate all the intercepts used at trial.
- Many of the exhibits tendered by the Prosecution under this category refer
to specific intercepts submitted in rebuttal. The admission of these exhibits
has already been considered in the relevant sections of the present decision.
Two exhibits that have not been otherwise mentioned in the context of previous
categories are concerned. Witness Frease also testified about the process
used by the OTP to compile , authenticate and assess the reliability of the
- The Defence argues that these exhibits are improper rebuttal evidence.
The Defence specified during the hearing of 11 April that no objection as
to the authenticity of the intercepts had been raised by the Defence before
the accused was confronted with the intercepted conversation in which he presumably
uttered “kill them all”. The Defence claims that there is no ground to admit
evidence adduced under this category if this intercept is not admitted.
- The Prosecution claims that the accused, by contending that this intercept
was a pure montage, challenged the authenticity of all the intercepts already
introduced in evidence. This would entitle the Prosecution to bring additional
evidence to authenticate all the intercepts.
- The Chamber previously indicated that the intercepted conversation in which
Krstic admittedly says “kill them all” was improper rebuttal evidence. As
a consequence , the Prosecution should not be granted the right to introduce
any other evidence relating to this intercept and all other intercepts were
admitted without challenge to their authenticity. The exhibits tendered to
authenticate the intercepts are therefore excluded.
- However, the reliability of the intercepts has been consistently challenged
by the Defence throughout the trial. Witness DB indicated that the Muslim
interceptors were not properly trained for transcribing radio intercepts;75 the expert witness Radinovic insisted that radio intercepts
were highly unreliable sources of information;76 witness DC also indicated that intercepts were not always trustworthy
and reliable.77 Likewise, the
accused challenged the reliability of several intercepts during his testimony.78
- Consequently, the Chamber finds that the Prosecution is entitled to adduce
additional evidence in rebuttal in order to prove that the intercepts are
a reliable source of information. The testimony of Witness Frease is thus
admitted to the extent that it relates to the reliability of the intercepts
generally and does not address the authentication of specific intercepts that
have been ruled inadmissible by the Trial Chamber.
Intercepted conversations between the accused and Borovcanin
a) Statement of facts
- On 20 March 2001, the Prosecution tendered into evidence two exhibits referring
to a conversation that allegedly took place on 13 July between General Krstic
and Colonel Borovcanin. The conversation was previously admitted into evidence
during the case-in-chief in the form of printouts, on three different occasions.79 The Prosecution obtained these documents on 13 December
b) Legal findings
- The Defence objected to the admission on the ground that it is improper
- The Chamber notes that these exhibits seek to authenticate previously admitted
- The accused challenged the reliability of the intercept during his cross-examination
. He asserted that he never had any conversation with Borovcanin at the time
and he would never use some of the words reported therein.81
- However, the evidence here sought to be admitted rather goes to the authenticity
of the intercept and does not specifically relate to its reliability. Admission
of these exhibits in rebuttal would have to be grounded on General Krstic’s
statement that the conversation in which he presumably said “kill them all”
was a “montage ”. For the reason indicated above, this is not a sound ground
and these exhibits are excluded.
- It is also unnecessary to admit the exhibits as fresh evidence since the
intercept has already been admitted, demonstrating that its authenticity is
not in dispute .
For the foregoing reasons,
THE TRIAL CHAMBER specified in its confidential decision which
Prosecution exhibits and testimonies it decided to admit or not to admit.
Done in French and English, the English version being authoritative.
Done this third day of May 2001
At The Hague
Judge Almiro Rodrigues
Trial Chamber I
[Seal of the Tribunal]
1 - T. 8615-8618.
2 - The Prosecutor v. Zejnil Delalic, Zdravko Mucic (aka
“Pavo”), Hazim Delic and Esad Landzo (aka “Zenga”) (“Celebici case”), Case
No. IT-96-21-A, 20 February 2001 (“Celebici Appeal”)
3 - Celebici Appeal, para. 273.
4 - Celebici Appeal, para. 275.
5 - Id., para. 276.
6 - Id., para. 274.
7 - Quoted in the Celebici Appeal, para. 275.
8 - Celebici Appeal, para. 275.
9 - The Prosecution v. Dario Kordic and Mario Cerkez, Case
No. IT-95-14/2-T, oral decision of 18 October 2000 (“The Kordic Decision”),
10 - The Kordic Decision,
11 - Celebici Appeal, para. 283: “the primary consideration
in determining an application for reopening a case to allow for the admission
of fresh evidence is the question of whether, with reasonable diligence, the
evidence could have been identified and presented in the case in chief of
the party making the application. If it is shown that the evidence would not
have been found with the exercise of reasonable diligence before the close
of the case, the Trial Chamber should exercise its discretion as to whether
to admit the evidence by reference to the probative value of the evidence
and the fairness to the accused of admitting it late in the proceedings. These
latter factors can be regarded as falling under the general discretion, reflected
in Rule 89 (D) of the Rules, to exclude evidence where its probative value
is substantially outweighed by the need to ensure a fair trial”.
12 - Provisionally registered
13 - T. 6800.
14 - T. 8601.
15 - T. 6794.
16 - T. 8602.
17 - T. 6801.
18 - Prosecution’s Response,
footnote 6, page 2.
19 - The Prosecution’s Response,
20 - para. 35.
21 - Para. 36.
22 - Reply, para. 10.
23 - The Prosecution’s Response,
24 - The Prosecution’s Response,
25 - Reply, para. 14.
26 - The Prosecution’s Response,
27 - The Prosecution’s Response,
28 - Id., para. 40.
29 - Id., para. 41.
30 - T. 6795.
31 - The Prosecution’s Response,
32 - T. 9066.
33 - In particular, witnesses
Butler and Frease indicated that the intercept lent itself to several interpretations
and did not necessarily show intent of the accused to effectively kill all
the Muslims. On the other hand, the expert witness French was unable to
determine whether the voice uttering “kill them all” was the accused’s.
34 - T. 8806.
35 - Defence Motion, para.
4, corrected by the Prosecution’s Response, para. 24 and footnote 27.
36 - T. 8807.
37 - T. 8825.
38 - T. 8826.
39 - T. 8824.
40 - T. 8828.
41 - T. 8790.
42 - The Prosecution’s Response,
43 - T. 6268, T. 6814.
44 - T. 6330.
45 - T. 6335.
46 - T. 9106-9107.
47 - Defence Objections to
Rebuttal/Rejoinder Exhibits, 11 April 2001, para. 15.
48 - T. 9032
49 - T. 9033.
50 - The Prosecution announced
that Witness II would also testify about the date when General Krstic learned
about Muslim men being captured. However, the witness was unable to give
any information on this point (T. 9135).
51 - T. 9108-9109.
52 - T. 9005.
53 - 21 March, T. 8905.
54 - T. 8901.
55 - 22 March, T. 9010.
56 - T. 8898.
57 - 21 March, T.8896-8897.
58 - 22 March 2001, T. 8913.
59 - T. 9011.
60 - See para. 40 of this
61 - T. 9050. The testimony
that the Prosecution intended to rebut can be found at T. 7832-7833 and
62 - T. 9397.
63 - T. 9396.
64 - Defence Objections to Rebuttal/Rejoinder Exhibits,
op. cit. para. 27.
65 - T. 9356.
66 - T. 9393.
67 - T. 9396.
68 - Defence Motion for Continuance,
69 - T. 9050, T. 9188.
70 - T. 9188.
71 - Prosecution’s reply to
Defence Motion to Exclude Testimony of Rebuttal Witness Mr. Richard Butler,
30 March 2001, para. 2.
72 - Motion to exclude the
testimony of Mr. Richard Butler in Rebuttal, 28 March 2001, para. 7.
73 - T. 7392-7393.
74 - Prosecution Reply to
Defence Motion to Exclude Testimony of Rebuttal Witness Mr. Richard Butler,
30 March 2001, para. 2.
75 - T. 7113-7114.
76 - T. 8485.
77 - T. 7519-7520.
78 - Among others, the accused
denied having had a conversation with Beara on 15 July 1995 (intercept P477,
denied by the accused at T. 6725-6727). See also T. 6666-6667 for his reply
to the intercept between Krstic and Borovcanin on 13 July 1995 (P529A).
79 - T. 8726.
80 - T. 4718-4723, of 27 June
2000; T. 8750 of 20 March 2001.
81 - T. 6666-6667.