Tribunal Criminal Tribunal for the Former Yugoslavia

Page 9636

1 Wednesday, 11 April 2001

2 [Exhibit Motion Hearing]

3 [Open session]

4 --- Upon commencing at 4.02 p.m.

5 [The accused entered court]

6 JUDGE RODRIGUES: [Interpretation] Good afternoon, ladies and

7 gentlemen. Good afternoon to the technical booth, the interpreters. I

8 hear the same voices. Good afternoon also to the registry staff, the

9 counsel for the Prosecution and for the Defence. Good afternoon, General

10 Krstic.

11 We are having this hearing to discuss and analyse certain exhibits

12 which are still the object of discussion between us and require a ruling

13 by the Chamber. To start the ball rolling, I give the floor to

14 Mr. Harmon, and we will see what Mr. Visnjic has to contribute.

15 You have the floor, Mr. Harmon.

16 MR. HARMON: Good afternoon, Mr. President. Good afternoon Your

17 Honours. Good afternoon, Mr. Visnjic.

18 Mr. President, I think the first thing we need to do to put these

19 matters at issue is for the Prosecutor to introduce or move to introduce

20 the exhibits which I will now do by number, and it will take me just a

21 matter of about five minutes to read each of the exhibits. And for Your

22 Honours' and counsel's ability to follow what I'm doing, I'm going to be

23 referring to a document that has been provided to Your Honours and to

24 counsel and a document that has been prepared by the Office of the

25 Prosecutor.

Page 9637

1 So if I could just start by moving the following exhibits into

2 evidence: Prosecutor's Exhibit 747, which we are offering under seal;

3 748, we are moving that exhibit into evidence under seal; 786/a and b,

4 with 786 being under seal; 787/a and b; 788/a and b, 789; 789/a and b;

5 835; 835/a and b; 859.

6 Then moving to page 3, Prosecutor's Exhibit 842/a and b and

7 Prosecutor's Exhibit 843 under seal.

8 Moving to the next page of the document, page 4, Prosecutor's

9 Exhibit 844 under seal, 850/a and b, 851/a and b, 852/a and b, 853/a and

10 b, 854, 854/a and b, 855/a and b, 856/a and b, 857/a and b, 860, 860/a.

11 Then 861/1 which we are offering under seal. 889.

12 Prosecutor's Exhibit 845, 846, 862/a, 862/b. 864, which we are

13 offering under seal. 865/a, which we are offering under seal. 865/b

14 under seal, 866/a under seal, 866/b under seal, 867/a under seal, 867/b

15 under seal, 868/a under seal, 868/b under seal, 869. 870/a under seal,

16 870/b under seal, 871/a under seal, 871/a under seal, 872/a under seal,

17 873/a under seal, 874. 875/a under seal, 875/b under seal. 877/a and b,

18 878/a and b, 879, 883 and 883/b. 885 under seal, 885/a under seal, 885/b

19 under seal, 886 under seal. 886/a under seal, 886/b under seal, 887/a

20 under seal, 887/b under seal, 887/c under seal.

21 The remaining exhibits, Mr. President, have been admitted pursuant

22 to a ruling, an oral ruling from the bench by the Trial Chamber but have

23 never been tendered as physical copies of the exhibits, and we would now

24 tender those exhibits. They are Prosecutor's 893/a, which is a report

25 from Jose Baraybar, which is 893/a and b. 894/a and b which is a report

Page 9638

1 prepared by Dr. John Clark. 895/a and b, which is a report prepared by

2 Professor Richard Wright. 896/a and b, a report prepared by Fredy

3 Peccerelli and 897/a and b, a report prepared by Dean Manning.

4 Those are the exhibits that we would now tender into evidence, and

5 the latter exhibits which have already been admitted, we are going to be

6 presenting those to Your Honours in physical form for the record. Thank

7 you.

8 JUDGE RODRIGUES: [Interpretation] Mr. Visnjic?

9 MR. VISNJIC: [Interpretation] Your Honours, the Defence has

10 several times objected to the introduction of these exhibits for various

11 reasons. However, I would like to say that on this list, we don't have

12 the Exhibit 889, which was also tendered. But it's not there in the final

13 list from the Prosecution. So before we get into the details regarding

14 these exhibits, it would perhaps be good to clear up the situation

15 regarding Exhibit 889. It's a video which was tendered during the

16 testimony of Witness EE.

17 JUDGE RODRIGUES: [Interpretation] Mr. Visnjic, I see it on page 6,

18 I think, of the Prosecutor's document, 889. It comes under category 4.

19 MR. VISNJIC: [Interpretation] Yes, that's right, Your Honours, but

20 I think that Mr. Harmon did not read that into the transcript, and that's

21 why I'm mentioning it.

22 JUDGE RODRIGUES: [Interpretation] Perhaps. Mr. Harmon?

23 MR. HARMON: Let me please thank you, Mr. Visnjic, for bringing

24 that to my attention. If I haven't read it into the record, I intended to

25 do so, and therefore we would move to introduce into evidence Prosecutor's

Page 9639

1 861/1 under seal and Prosecutor's Exhibit 889.

2 JUDGE RODRIGUES: [Interpretation] So Mr. Visnjic, you may continue

3 now.

4 MR. VISNJIC: [Interpretation] Thank you, Mr. President.

5 Mr. President, the Defence objects, as I said, to the introduction of

6 these exhibits for various reasons. This group of exhibits, we have

7 separated it according to the type of our objection so we have classified

8 them into several categories.

9 What we have done has been submitted in written form to the

10 Chamber on the 11th of April of 2000 and it has also been submitted as a

11 special diagram, a chart, so I don't know -- in view of the expediency of

12 the proceedings, I don't know if I should read out the exhibits that we

13 were discussing in that chart, or would the Prosecution perhaps agree with

14 the list from the motion of 11th of April, which lists the Defence's

15 objections to the exhibits.

16 JUDGE RODRIGUES: [Interpretation] The question, I see here,

17 Mr. Visnjic, is the list that you sent to us has not been marked, so I

18 don't know whether it needs to be marked or not. In any event, I think we

19 can apply the same methodology as Mr. Harmon did for the record. He is

20 requesting the admission. You object. And then we will discuss it.

21 Mr. Harmon, do you have a different suggestion?

22 MR. HARMON: No, Mr. President, I do not.

23 JUDGE RODRIGUES: [Interpretation] In that case, please proceed,

24 Mr. Visnjic.

25 MR. VISNJIC: [Interpretation] Thank you, Mr. President. The

Page 9640

1 Defence objects to the Exhibits 747, 748, 786/a, 786/b, 787/a, 787/b, 789,

2 789/a, 789/b, 835, 835/a, 835/b. 859, 864, 864/a, 865/b, 866/a, 866/b,

3 867/a, 867/b, 868/a, 868/b, 869, 870/a, 870/b, 871/a, 871/b, 872/a, 872/b,

4 873/a, 874, 875/a, 875/b. Also 844, 845, 846, 850/a, 850/b, 851/a, 851/b,

5 852/a, 852/b, 853/a, 853/b, 854, 854/a, 854/b, 855/a, 855/b, 856/a, 856/b,

6 857/a, 857/b, 860, 860/b, 862/a, 862/b, then 855 -- excuse me, 885, 885/a,

7 885/b, 886, 886/a, 886/b, 887/a, 887/b, and 887/c. Then 861/1 and 889.

8 Then 877/a, 877/b, 878/a, 878/b, and 879, also Exhibits 883 and 883/b.

9 I think that this is everything, Mr. President.

10 JUDGE RODRIGUES: [Interpretation] Mr. Visnjic, what about exhibits

11 marked as 893 and the following ones until 897? That is pages 12 and 13

12 of the Prosecution document. You didn't mention them.

13 MR. VISNJIC: [Interpretation] Mr. President, these exhibits are

14 subject to a response by the Defence, a pending response from the Defence

15 since, in our -- we don't object to tendering these exhibits but we

16 reserve our right to respond to them in accordance to the ruling by the

17 Chamber.

18 JUDGE RODRIGUES: [Interpretation] Yes. Mr. Harmon, do you wish to

19 take the floor? I don't know. Mr. Visnjic has made his objections but he

20 hasn't given us the reasons. They are probably known. I don't know how

21 you would like to have this debate. Mr. Visnjic, you object to all these

22 exhibits but perhaps we have certain categories of documents here that are

23 the subject of a particular topic. And I don't know, maybe the

24 methodology to apply would be to take one group of exhibits related to a

25 particular topic because I think last time Mr. Harmon said that he wished

Page 9641

1 to have entered in the record the reasons. Maybe some new reasons, some

2 new grounds. Perhaps you could respond. And after that, we'll see what

3 Mr. Harmon will say. What are the reasons, the grounds for your

4 objections?

5 MR. VISNJIC: [Interpretation] Mr. President, the grounds for our

6 objections have been presented several times already during the

7 proceedings for each individual exhibit, and they're also to be found in

8 the document which we have submitted to the Trial Chamber today.

9 As far as I understood, Mr. Harmon wanted an opportunity to

10 respond to those objections and those grounds. I am quite ready to

11 present them again, but as they're contained in three written submissions,

12 coupled with what we said at the oral hearings, this may take a lot of

13 time. So perhaps it would be best to hear the response of Mr. Harmon, and

14 then perhaps I can respond again.

15 JUDGE RODRIGUES: [Interpretation] So we have a general objection

16 on your part, and Mr. Harmon is aware of the reasons for each of the

17 exhibits. And regarding particular topics, I think that you have

18 something to add, so please respond. You have the floor to respond.

19 MR. HARMON: I agree with Mr. Visnjic, Mr. President, that many of

20 these issues have been the subject of briefing, so there's no reason to

21 reiterate for Your Honours the positions taken by the Prosecutor's Office

22 or the Defence.

23 I would like to add, however, add some clarifications. And the

24 first clarification I'd like to add is that the issue found in our

25 category number 1 which relate to the, what I'll refer to as the "kill

Page 9642

1 them all" conversations, I merely point out that there are two tapes at

2 issue. One is the tape that is known as Q2, and for the record, that tape

3 was received by the Office of the Prosecutor prior to the Prosecutor's

4 closing her case in chief. The second conversation, which was the more

5 audible conversation of the voice of General Krstic, was not received by

6 the Office of the Prosecutor until after we had concluded our case in

7 chief. So I'd just like to insert that into the record. That is also

8 found in our written reply to the Defence objection to the admission of

9 those tapes and intercepts in footnote 6 of our reply.

10 Now, in respect of the second category, I'd just like to -- in our

11 second category, which consists of Prosecutor's Exhibit 842/a and b and

12 843, these exhibits are transcripts from notebook 232. Now, the substance

13 of that conversation has been admitted on three separate occasions in the

14 course of these proceedings. It is OTP Exhibit 364/volume 1/13 July/tab

15 16, and then OTP Exhibit 404/tab 341, and finally, OTP Exhibit 529. The

16 notebook from which these conversations, 842 and 843 and the notebook

17 itself, those were recovered by the Office of the Prosecutor on the 13th

18 of December, 2000, after the Prosecutor had concluded her case in chief.

19 Now, if we turn to the third category identified by the

20 Prosecutor, the exhibits are identified on pages 4, 5 -- 4 and 5, it is

21 our position that first of all, these conversations are conversations that

22 directly rebut the testimony of General Krstic. And I will refer Your

23 Honours, and there is a reference to a transcript page in there, but

24 specifically I'll read the portion of the testimony given by General

25 Krstic. I have to go into private session for this for just a minute

Page 9643

1 because this is a private session testimony.

2 JUDGE RODRIGUES: [Interpretation] Yes, let us go into private

3 session.

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Page 9644

1 [Open session]

2 JUDGE RODRIGUES: [Interpretation] We are in public session.

3 Continue, please.

4 MR. HARMON: Now, the exhibits that are identified on pages 4 and

5 5 of our submission, Mr. President, are conversations that either, first

6 of all, directly rebut the testimony of General Krstic, or, put those

7 conversations into context.

8 In our submission to Your Honours on page 4, I need to clarify the

9 second paragraph of the text that is above, directly above the numbered

10 exhibits, and I will tell you why. When I read this shortly before coming

11 to court, it was somewhat confusing to me, and I need to clarify for the

12 record, because this set of documents deals with Prosecutor's Exhibit 860,

13 which is a -- found on page 5, and which is a printout version of the

14 Krstic/Mandzuka conversation on the 2nd of August.

15 Now, the printout version of this conversation was received by the

16 Office of the Prosecutor on the 13th of December, 2000. The substance of

17 that conversation was identified -- I received it in B/C/S. It was read

18 to me the day before Witness FF testified, and I -- when I realised what

19 was said in that conversation, then I identified it as being a

20 conversation that had some evidentiary value.

21 Then we looked at notebook 103. Now, notebook 103 isn't the

22 printout conversation; it's their hand-written, recorded intercept. That

23 was received by the Office of the Prosecutor in April of 1998, and we then

24 found the similar conversation that was contained in the printout in that

25 notebook. So that is the clarification I'd like to bring to this

Page 9645

1 particular paragraph. It sets the timing, which timing seems to be

2 everything in this debate, it sets the timing correct.

3 Now, Mr. President, let me refer to these conversations in this

4 category, which is our category 3, and refer Your Honours to the motion

5 filed by the Defence on the 11th of April, Defence objections to rebuttal

6 rejoinder exhibits. And let me refer Your Honours to paragraph 12 of that

7 filing in which the Defence contends that, "We," the Prosecutor, "was well

8 aware of Krstic's position concerning Popovic from its two-day interview

9 of him in February 2000 and cannot say the Defence evidence was not

10 reasonably anticipated."

11 During that interview, General Krstic never said he didn't talk to

12 Popovic on August the 2nd. The first time we heard that General Krstic

13 hadn't talked to Lieutenant Colonel Popovic was when he testified under

14 oath to that effect, and therefore it's our position, Mr. President and

15 Your Honours, that these exhibits that are found in our category 3 are

16 proper exhibits to rebut the false testimony of General Krstic.

17 Now, the Defence raises in its same pleading on paragraph 14 that

18 we should have made a motion to reopen the case under the rubric of fresh

19 evidence, and they're referring specifically to this conversation of

20 Krstic/Mandzuka.

21 Again, Mr. President, this conversation and the significance of

22 this conversation did not become apparent to the Office of the Prosecutor

23 until General Krstic testified falsely about his conversations with

24 Lieutenant Colonel Popovic, or his lack of conversations with him, on the

25 2nd of August. In that context, the Office of the Prosecutor then became

 

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Page 9647

1 aware of this Mandzuka conversation and the other Popovic/Krstic

2 conversations from the 2nd of August.

3 Now, if we turn, Mr. President, to category 4 of our submission,

4 that is, documents that relate to Witness II, I will need to go into

5 private session once again.

6 JUDGE RODRIGUES: [Interpretation] Yes, let us go into private

7 session.

8 MR. HARMON: For the record, it's perfectly clear on the timing --

9 JUDGE RODRIGUES: [Interpretation] Yes, we are in private session.

10 Please proceed.

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Page 9648

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Page 9649

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2 [Open session]

3 JUDGE RODRIGUES: [Interpretation] We are in public session.

4 MR. HARMON: The exhibits that are in our category 4.

5 JUDGE RODRIGUES: [Interpretation] Excuse me, Mr. Harmon, just to

6 say that this part of the private session was not marked on the

7 transcript. It is page 13, line 6.

8 Please continue, though.

9 MR. HARMON: Further to the two exhibits that the Prosecutor seeks

10 to admit under our category 4, 861/1 and 889, I draw your attentions --

11 Your Honours' attention to the fact that these are clips, video clips,

12 taken from previously admitted exhibits, Office of the Prosecutor Exhibit

13 58, 49 and 145 bis. There is nothing new or original in this material.

14 Now, category 5. In category 5, which are exhibits that were

15 introduced by my colleague, or at least tendered by my colleague, Magda

16 Karagiannakis, the explanation that's in our submission on page 7 is

17 self-explanatory.

18 Now, if I could turn next to the next category, the next category

19 are exhibits that were tendered through Mr. Butler in our surrebuttal

20 case. This issue also, Mr. President, has been fully briefed by the

21 Office of the Prosecutor and doesn't, I do not believe, bear additional

22 comment.

23 JUDGE WALD: I have one question on that, just on that category.

24 Previously, when we were talking about the Popovic conversations, you

25 referred to the Defence submission and said that you did not agree with

Page 9650

1 it, that this should have been anticipated by reading the earlier

2 interview of General Krstic. You told us you didn't agree with that.

3 That's not my point. My point is here, do you happen to know whether or

4 not - and Mr. Visnjic, I invite you to respond to the same question -

5 whether or not in that earlier interview with General Krstic, there was

6 anything in that interview that related to the issue involved here, which

7 as you know, was the answer to the question of whether General Krstic knew

8 that prisoners were being taken between the 12th and the 17th. The

9 Defence paper does not say that, but I just wondered whether you or

10 Mr. Visnjic knows that.

11 MR. HARMON: I don't, I'm afraid.

12 JUDGE WALD: Okay.

13 MR. HARMON: Then -- now, if we turn to the next category, which

14 is category 7, Prosecutor's exhibits under that category are 883 and

15 883/b. And under that category, what is significant to be inserted into

16 the record is 883 was first acquired by the Office of the Prosecutor in

17 1998, but a translated version of that didn't come to the attention of

18 Mr. Butler until January of 2001. I think it's important in this context

19 to understand that the Office of the Prosecutor has literally millions and

20 millions of documents. Unfortunately, we don't get all of those documents

21 in a translated form in an usable form. There is a process, a slow

22 process, by which documents are translated. I don't know the details and

23 the circumstances of why or when this document was submitted for

24 translation. I just know that the translated version came to the

25 attention of Mr. Butler in January of 2001. So that is the date, the

Page 9651

1 marker, when we as prosecutors had actual knowledge of it and its

2 contents.

3 JUDGE RODRIGUES: [Interpretation] Mr. Harmon, a question. Isn't

4 it true that it is not just any document. It is really a document that

5 comes above all the others regarding the whole Prosecution case?

6 MR. HARMON: I think -- I'm not in a position to weigh the weight

7 of each of those documents.

8 JUDGE RODRIGUES: [Interpretation] I apologise for making that

9 comment.

10 MR. HARMON: I know that unfortunately the reality is there are

11 sometimes documents that come to us at various stages, depending on the

12 ability to be submitted by the Office of the Prosecutor for translation

13 and the date when they are actually received. I'm not sure who submitted

14 this document to the translation section. All I know is that we became

15 aware of it for the first time -- I'm corrected my by my colleague,

16 Mr. McCloskey, it came to the attention of Mr. Butler in January. It was

17 actually translated in December of 2000 but it came to Mr. Butler's

18 attention in 2001.

19 Now, if I turn to category 8, in our submission, the -- and I read

20 the defence submission, starting at paragraph 15, the suggestion is -- at

21 least I read in paragraph 15, is that the Prosecutor clearly should have

22 presented this evidence in her case in chief. Mr. President and Your

23 Honours, the Prosecutor on the issue of when General Krstic became the

24 Commander, the Prosecutor's office submitted copious quantities of

25 evidence relating to that particular issue. We presented intercepts. We

Page 9652

1 presented the orders signed by General Krstic dated the 13th of July,

2 1995, where he signed it as Commander. We submitted an order signed by

3 General Krstic as the Commander dated the 17th of July, 1995. We

4 submitted, I believe, interim combat reports addressed to the Commander,

5 General Krstic. We submitted the order signed by President Karadzic

6 appointing General Krstic as the Commander. And other forms of evidence

7 that identify clearly the time when General Krstic became the Commander of

8 the Drina Corps.

9 The issue of when we presented this particular witness -- I have

10 said it in passing, I will say it again. This witness was hostile in fact

11 to the Office of the Prosecutor and hostile in the traditional sense, in

12 the legal meaning of a hostile witness, and we declined to present him in

13 our case in chief. It was after other evidence came to our attention,

14 which I will not mention in public session but we have touched upon

15 previously in private session, that the Prosecutor's office then made a

16 decision to issue -- request the Trial Chamber to issue a summons or

17 subpoena to Mr. Golic to appear, and we were fully prepared and were

18 hopeful, as a matter of fact, that he would appear. He did not. But that

19 evidence that we have sought in respect of our category 8, we believe, is

20 relevant evidence. We believe it is adequate rebuttal evidence as well to

21 the testimony of General Krstic, who has said that he was not the

22 Commander until a later date in time. And we believe it is admissible

23 evidence under the ruling that was issued by the Appeals Chamber, a

24 decision on the appeal regarding the statement of a deceased witness that

25 was issued on the 21st of July, 2000.

Page 9653

1 Those are my remarks, Mr. President, and Your Honours. Thank

2 you.

3 JUDGE RODRIGUES: [Interpretation] Mr. Visnjic, perhaps there is

4 some new information that you wish to respond to, and more specifically,

5 to this remark, that there are certain exhibits, specifically Exhibit 861

6 and 889, which are abstracts from exhibits that have already been admitted

7 into evidence. So we are awaiting your contribution and your comments.

8 MR. VISNJIC: [Interpretation] Mr. President, perhaps it would be

9 better to start with your question right away. I might be a little bit

10 confusing because the Prosecutor has a different categorisation from me

11 and I will try to respond in the same order that he talked in.

12 Regarding Exhibit 861/1 and 889, we would like, Mr. President, to

13 add the following: We objected. It's true that these two exhibits are

14 parts of earlier admitted exhibits, and the Defence regarding the

15 authenticity and the other elements does not have any objections to these

16 two exhibits. However, these two exhibits are being tendered by the

17 Prosecutor through the testimony of a witness to whose testimony we have

18 objected as a whole, as evidence brought before this Court. The reasons

19 why we did this are as follows: The Prosecutor has explained to the Trial

20 Chamber that the Prosecution, since July, 2000, at least that's how I

21 understood this, this part of his statement, so the Prosecution entered

22 into the procedure of taking statements from witnesses from July 2000 --

23 from this witness.

24 What I would like to say, Mr. President, is that the Prosecution

25 took the notebook, the phone book, which contained information about this

Page 9654

1 witness, in December, 1998, so it was in their possession since then. The

2 facts that this witness testified about relate mainly to the statement

3 that General Krstic gave during his interview on the 18th and 19th of

4 February, and the statement provided by a witness who was questioned by

5 Mr. Kruszewski. So all of this happened at least several months before

6 July 2000. So in this sense, I believe that the Trial Chamber will

7 appreciate a certain dynamic in the conduct of the Prosecution regarding

8 their own exhibits.

9 Second, Mr. President, regarding also the testimony of this same

10 witness is the fact that on the one hand, we can view his testimony in a

11 certain sense as new evidence by the Prosecution, which they came to after

12 their evidence in chief was concluded.

13 But in that sense, I would like to ask the following question:

14 Does this fresh evidence fulfil all the elements required in order to

15 admit it, and on the other hand, whether, perhaps because of this

16 evidence, the Prosecution should have requested a reopening of the case.

17 Mr. President, regarding this point, I would like to state the

18 following regarding fresh evidence found by the Prosecution. The Defence

19 has been talking with the Prosecution since December 2000 regarding

20 another group of fresh evidence, and these are the newly discovered

21 graves. In our conversations conducted in December 2000 and January 2001,

22 in view of the fact that we expressed a certain negative stance regarding

23 the introduction of these exhibits, the Prosecution stated that they would

24 seek a reopening of the case.

25 So between the Prosecution and the Defence, there were never

Page 9655

1 unresolved questions regarding new evidence, but it is obvious that the

2 Prosecution made their own selection regarding how to tender new exhibits,

3 regardless of the fact that the Defence believes that this can only be

4 done in a certain way that is required by new exhibits. And also in view

5 of the fact that a certain amount of time is required in order to prepare

6 for this evidence, the Prosecution decided to introduce this evidence in

7 the following way, in the way that they have done.

8 In any case, the Defence believes that this evidence is not

9 satisfactory for rebuttal, and in that sense has provided its explanation

10 and also in this motion from the 11th, Mr. President. And I have received

11 information today that it was distributed to the Court in two ways which

12 are required by the Court.

13 So this would be everything regarding this witness and regarding

14 his statement.

15 Now I would like to talk about a group -- or perhaps,

16 Mr. President, you still have some questions. Perhaps then I can respond

17 to them, or should I continue to respond to the issues posed by

18 Mr. Harmon?

19 JUDGE RODRIGUES: [Interpretation] As far as I'm concerned, you may

20 continue.

21 MR. VISNJIC: [Interpretation] Mr. President, regarding the first

22 group, the first category cited by the Prosecution as documents or

23 evidence regarding the telephone conversations of August 2nd, as well as

24 the accompanying documents, we had a slightly different categorisation, so

25 in this group of exhibits, we are also including evidence regarding the

Page 9656

1 chain of custody of the accompanying documents. So in that sense, we do

2 have a general objection, and the objection relates to the following: The

3 Defence objects in principle to the manner in which the Prosecution used

4 these exhibits.

5 According to the Defence, it's a fact, and this was confirmed by

6 certain Prosecution witnesses, first of all primarily Mr. Butler during

7 his testimony during rebuttal, that the Prosecution was in the possession

8 for a long period, or more precisely, from April 24th, 1998, in possession

9 of these conversations, and it decided to use this evidence in a tactical

10 way. I do not want to get into chronology of the -- these exhibits and

11 when they were in possession of the Prosecution, but this is mentioned in

12 points 4 and 5 of our motion, 3, 4, and 5 from our motion of April 11th.

13 What I would like to say once again, Mr. President, is that these

14 conversations were not pointed out by the Defence. They were provoked by

15 the Prosecution themselves, but through questions posed to General Krstic,

16 and then this was followed by a series of consequences, and all of this is

17 contained in our previous objections.

18 Having in mind the appeals ruling in the Delalic case, we believe

19 for all of the reasons which were cited in that decision, these exhibits,

20 together with the group of exhibits that we listed in paragraph 3 of our

21 submission of April 11th, we believe that they should not be admitted.

22 Mr. President, regarding exhibits listed in category 2 of the

23 Prosecutor's submission, and these are Exhibits 842/a and 842/b and 843

24 for which the Prosecution has stated that they are exhibits which the

25 Prosecution obtained on December 13th, 2000, Mr. President, we have the

Page 9657

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Page 9658

1 following position on that group of exhibits. First, these are facts on

2 which General Krstic spoke about during his interview; second, regarding

3 which evidence was brought during the Prosecutor's evidence in-chief, so

4 this is not a new topic which emerged from the evidence by the Defence.

5 If this were new evidence, as the Prosecution claims, we believe that

6 these exhibits could only be tendered by a reopening of the case, implying

7 all the consequences which would be valid for the Defence.

8 Regarding category 3 listed in the Prosecution's exhibits

9 regarding the conversations with Popovic and all the other conversations

10 relating to that, it is true that in part, these conversations were

11 something that the Prosecution found out about in December of 2000, so

12 they should be treated in the same way as any other new evidence should be

13 treated.

14 General Krstic in his interview to the Prosecution on the 18th and

15 19th of February, 2000, described in detail his relationship with Colonel

16 Popovic. Therefore, this is not something that came about from the

17 evidence by the Defence and which could eventually meet the Delalic

18 standard for evidence during rebuttal.

19 On the other hand, the majority of these conversations relate

20 directly to conversations, the so-called "kill them all" conversations

21 which, according to the Defence, cannot be admitted in view of the manner

22 in which they were used by the Prosecution. So the Defence also places

23 the conversation between Krstic and Mandzuka in that group of separate

24 exhibits, and that is Exhibit 862 - just one moment, please - 862/a and

25 862/b, in view of the fact that these conversations were in the same

Page 9659

1 notebook as the conversation "kill them all," and that they have been in

2 the possession of the Prosecution since 1998.

3 Furthermore, Mr. President, I must remind Your Honours that the

4 Prosecution has discussed at length the relationship between General

5 Krstic and Lieutenant Colonel Popovic as it called a large number --

6 presented a large number of photographs, certain intercepts as well, so I

7 do not consider this issue to have been prompted by General Krstic's

8 response as to the question whether he had any conversations with Colonel

9 Popovic. On the contrary, I feel that the Prosecution itself has raised

10 this topic on the one hand, and on the other, that it had discussed it

11 sufficiently during its case in chief.

12 Mr. President, that brings me to category 5, according to the

13 classification of the Prosecution, and it relates to the authenticity of

14 intercepts which the Prosecution had to prove in its rebuttal case.

15 Mr. President, regarding the authenticity of intercepts, we denied

16 their authenticity up to a point during the Prosecution case itself, and

17 as far as I can recollect, all those intercepts were given to us just

18 before the first Prosecution witness, the first witness who intercepted

19 conversations was called to the witness box. So we asked for some

20 additional time to react to them as we had received three large binders

21 with notebooks containing these intercepted conversations.

22 Mr. President, at that point in time, we did not realise the

23 significance of the intercepted conversations in the sense of the "kill

24 them all" intercepts. We did object regarding the authenticity and the

25 understanding of the content and the significance of the intercepted

Page 9660

1 conversations, but the objection regarding false conversations was made

2 for the first time during the cross-examination of Mr. Krstic, and again,

3 he was prompted by questions from the Prosecution. Therefore, it is the

4 Defence submission that all these exhibits in category 5 belong to the

5 same group or the same category as the tapes because they came from them

6 and are linked to them.

7 I should now like to focus on category 6, and this category

8 contains exhibits from the Zvornik Brigade which have been tendered

9 through the testimony of Mr. Butler. Mr. President, Your Honours, the

10 Defence is under the impression that through Mr. Butler's testimony, the

11 Prosecutor wanted to raise a number of topics which were not appropriately

12 raised in a rebuttal case, and then at one point, they changed their minds

13 and rested with these two documents. The first document has to do with

14 the reply given by General Krstic to Her Honour Judge Wald. I have to

15 say, Mr. President, that General Krstic in his interview of the 18th and

16 19th had repeatedly -- specifying the dates, he had commented on the

17 destiny of prisoners of war within the triangle Milici-Konjevic

18 Polje-Bratunac. Therefore, it is my submission that that topic was raised

19 during the Prosecution case in chief, and that it was the duty of the

20 Prosecution to present to Their Honours and the Defence all the evidence

21 that it had in their possession.

22 This applies in particular, Your Honours, to the second document,

23 the daily combat report of the Zvornik Brigade in which the Prosecution

24 denies the claims of the Defence that the Drina Corps was not on the road

25 of the Bratunac-Milici road. Allow me to remind you, Your Honours, of the

Page 9661

1 lengthy discussion and questions that we put to Prosecution witnesses

2 including the expert witness of the Prosecution, Mr. Butler, as to which

3 units were present along the Bratunac-Konjevic Polje-Milici road. And the

4 end of the presentation of evidence, we discovered that the tank over

5 which we had a dispute, whether it was blue or green, was a tank belonging

6 to MUP, and at the end, we identified the soldiers in the disputed clip

7 over which we had a dispute, and again we established that they belonged

8 to the MUP, and so on. The Defence really sees no reason whatsoever, if

9 the Prosecution really believes that some other members or elements,

10 elements of the Drina Corps were present there, that the Prosecution

11 didn't present that evidence during its case in chief.

12 All this appears to us to be an omission on the part of the

13 Prosecution rather than something provoked by the Defence case.

14 Your Honours, in this connection, I should like to state the

15 following. It is a fact that the Prosecutor has a large quantity of

16 documents in its possession but, at the same time, this also increases its

17 responsibility with respect to the use of those documents. The Prosecutor

18 cannot keep them up his sleeve and pull them out at will when that suits

19 his interests and when the Defence has already completed a great part of

20 its case. And not only that, in this way, Mr. President, we are

21 prejudiced in an adequate preparation of the Defence, because, by applying

22 these tactics, the Prosecutor puts us in a position to constantly have to

23 re-examine from the beginning certain positions that the Defence has taken

24 and which we considered closed and established.

25 On the other hand, we do not have the sufficient time or resources

Page 9662

1 to react, and this brings me to the next topic, which is also linked to

2 this one, and that is, Your Honour, category 8, relating to the testimony

3 of Mr. Kruszewski and the statement that the Prosecutor has tendered into

4 evidence in the rebuttal case.

5 First of all, it is my submission that we all agree that the

6 Prosecutor had available this evidence in its main -- in its case in

7 chief, during its case in chief. I think there is no justification in

8 this case for the Prosecutor to say that he was prompted to present this

9 evidence by the statement made by General Krstic in the courtroom, as the

10 Prosecutor in one stage of the presentation of its case in chief compiled

11 an exhibit in which they presented the differences between General

12 Krstic's statement and what the Prosecution believes it has evidence to

13 prove. So the Prosecutor did study, in great detail, Mr. Krstic's

14 interview from the 18th and 19th of February, during its case in chief.

15 On the other hand, General Krstic in that interview of the 18th

16 and 19th devoted a great segment of his statement to the date when he

17 became Corps Commander. Therefore, this was no new element for the

18 Prosecution, which emanated from General Krstic's statement during the

19 proceedings.

20 One further point in connection with this exhibit, Mr. President,

21 and the statement of Witness II. In a sense, these two exhibits are

22 linked, but on the other hand, there are numerous differences between

23 them, and this will certainly be the subject of our analysis when

24 preparing our final brief. What I wish to say is that one of these two

25 witnesses in his statement mentioned a number of persons who were present

Page 9663

1 at the alleged meeting on the 13th in the afternoon. Mr. President, by

2 tendering evidence in this way, in the rebuttal case, and regarding this

3 fact, we have been deprived of the possibility of examining all those

4 persons and taking statements from them with regard to the details that

5 both of the witnesses testified about.

6 On the other hand, Mr. President, and Your Honours, some of these

7 persons appeared on the list of witnesses called by the Prosecution. So

8 we don't know whether the Prosecution did talk to them; if he did, whether

9 he asked him questions about this; and whether those witnesses gave any

10 answers about that. If the answers were negative, then for us, that is

11 exculpatory material. We haven't gained possession of that, but we do

12 have information from the media that the Prosecution did want to contact

13 them.

14 So not only do we consider these exhibits to be inappropriate for

15 the rebuttal case, but we also submit that even if the case were to be

16 reopened, connected to this evidence, that the Defence would need

17 additional time to prepare for them.

18 And finally, with respect to Exhibit 883, and that is directive

19 number 4. The first point we wish to make, Mr. President, is that the

20 Defence witness was not the first to study the strategic matters of the

21 VRS. Prosecution Witness Mr. Butler did so on page 4792 of the

22 transcript. Therefore, this is an issue that was to have been taken up

23 during the Prosecution case in chief.

24 A second point we wish to make is that the Prosecutor had a

25 witness planned for these events, the events of 1992, and that he

Page 9664

1 renounced using that witness for reasons unknown to us.

2 A third point we wish to make is that taking into consideration

3 when that exhibit was disclosed to us, or rather, when it was used here in

4 court, not when we received it but when it was used in court, that our

5 ability to object to the authenticity of that evidence is limited because,

6 to be quite frank, during these proceedings, no one has gone into any

7 details regarding the year 1992, the tendering of such an important

8 exhibit, which we feel absolutely should have been tendered as a

9 Prosecution exhibit in their case in chief.

10 In view of the significance and scope of the document before us,

11 it is our submission that by tendering it two days prior to the end of the

12 proceedings, the Defence was absolutely deprived of the right to a proper

13 and adequate response. Therefore, even if the Trial Chamber is

14 considering the possibility of admitting this exhibit, and we feel that we

15 have provided very good grounds against its admission, we request a

16 certain amount of additional time that would give us the opportunity to

17 provide an adequate response to this exhibit.

18 The Prosecutor has tried, first, to tender the document the back

19 way through the testimony of Mr. Butler, and then through General

20 Radinovic's testimony who, Mr. President, in another context mentioned the

21 word "Zepa." And if the very mention of that word is sufficient for this

22 exhibit to be admitted, then we object again that it should have been

23 tendered in the Prosecution's case in chief.

24 JUDGE RODRIGUES: [Interpretation] Mr. Harmon, is there anything

25 new that you would wish to add?

Page 9665

1 MR. HARMON: There is, Mr. President. I was informed in respect

2 of this document which is directive 4, which is our category 7, I

3 mentioned to you that it came to the attention of Mr. Butler in January of

4 2001, I can inform Your Honours that this was a document that was

5 submitted for translation in two other ongoing prosecutions, and it was

6 not brought to our attention until after it was translated by the teams

7 that were involved in those other prosecutions. It came to us on the

8 dates and the time that I've mentioned.

9 So that Your Honours know, the team that is involved in this

10 prosecution, both the investigative team and the analyst and everyone else

11 associated with this separate investigation, was unaware of its

12 existence. It is only found through the result of other prosecutions and

13 investigations that are ongoing that then brought that to our attention

14 in -- as I say, it was translated in December of 2000 and brought to

15 Mr. Butler's attention in 2001.

16 Now, in respect of this document, there are a couple of things

17 that I just need to point out. The first is, Mr. President, this document

18 was given to the Defence on the 13th of February, 2001, and it was given

19 to them pursuant to an agreement that we had with the Defence on an

20 understanding that key military documents would be provided to the Defence

21 in advance of their being tendered in evidence. I refer Your Honours to

22 the pleading that we filed, the Prosecution's reply to the Defence motion

23 to exclude the testimony of rebuttal witness Mr. Richard Butler, I refer

24 Your Honours to two items, two annexes in that. The first, you will find

25 the letter in which both -- there are three documents that were provided

Page 9666

1 to the Defence that are the subject of today's debate. One is directive

2 4, and the other are the Zvornik Brigade reports dated the 12th of July.

3 All three of those documents, and only three, were given to them on the

4 13th of February, 2001, and this -- at the time it was given to them, the

5 first part of this letter reads, "Please find enclosed the following

6 documents that are being disclosed in accordance with our agreement." The

7 agreement that I'm referring to, Mr. President, is found at page 5905 of

8 the transcript wherein I put on the record the actual agreement that we

9 had between the parties.

10 Second of all, the substance of the document which deals with

11 essentially people leaving the -- being essentially forced out of the

12 enclave is consistent with the document that's already an exhibit and is

13 already in evidence. Prosecutor's Exhibit 746, which was a decision of --

14 on the strategic objectives of the Serbian people in Bosnia and

15 Herzegovina, and those strategic objectives were, in the first instance,

16 establishing borders separating the Serbian people from the other two

17 ethnic communities. This is a document that's been in evidence, was in

18 evidence in the course of this -- submitted in the course of this trial.

19 Now, what I'm hearing in the course of this discussion, debate, is

20 that rule of thumb, if the Prosecutor's Office had evidence that it didn't

21 introduce in its case in chief, then you can't introduce it in rebuttal.

22 Now, I want to try to bring some, some common sense to this

23 debate, and that's this: The Prosecutor's Office on one hand is told to

24 present their case in an expeditious fashion with sometimes restrictions

25 on the amount of time that witnesses and the cases can be presented. If

Page 9667

1 the Prosecutor is forced to anticipate everything and therefore put every

2 piece of evidence we have into evidence or run the risk of not getting it

3 into evidence later on through an objection that, one, we had it or, two,

4 we didn't anticipate properly, then these cases will run forever. And I

5 know that goes against the proper and efficient running of these trials

6 and the management of these trials.

7 Unfortunately for the Defence, there are some things we can

8 present in rebuttal. An accused can't get up and testify falsely to the

9 Trial Chamber, and because we have documents in our possession, we can't

10 use those in terms of showing and demonstrating the false testimony of an

11 accused or the false testimony of any witness.

12 There are documents and evidence that we do possess that are

13 proper for rebuttal, and unfortunately for the Defence, the attempts to

14 restrict the use of those kinds of documents on some rather technical and

15 narrow reading of the Delalic decision, or the fresh evidence requirements

16 of the Delalic case, are too restrictive and essentially preclude the use

17 and the introduction of evidence into the case itself.

18 Now, Mr. Visnjic mentioned that the authentication documents which

19 are our category A -- category 5 are the same as the "kill them all."

20 Well, that's not correct. Those documents are documents -- and the

21 Defence objected to the intercepts on the basis of their reliability, not

22 on the basis that they weren't authentic. They said they weren't

23 reliable. And Witness DB testified, as I recall, to -- he testified that

24 he was familiar with intercept procedures and he had some questions and

25 doubts about the training that the ABiH intercept operators had had, and

Page 9668

1 therefore they weren't reliable. He didn't testify -- and there was no

2 contest as to whether they were not authentic.

3 General Krstic put the issue of whether they were authentic at

4 issue when he said that the "kill them all" tape was a 100 per cent

5 montage, a fabrication. That put not only the tape into question and the

6 authenticity of that tape and the notebooks, but every notebook of every

7 intercept that had been presented.

8 The Defence claims that on one hand -- first of all, the Defence

9 had every opportunity on cross-examination to examine, and they did

10 examine, these witnesses who had these intercepts and brought the

11 intercepts forward. They cross-examined them on the content, the manner

12 in which they recorded these things.

13 They cross-examined them on all of their procedures, where they

14 went after they were recorded, how they were preserved, and that was all

15 subject of cross-examination. But the issue of the authenticity of these

16 was an issue that was raised by General Krstic's testimony.

17 Next, the Defence itself started to raise the similar kind of --

18 presented similar kind of evidence in the surrebuttal case with this last

19 witness. As to the witness, the witness testified about where he had

20 acquired certain documents and how he had acquired certain documents. So

21 when the Defence complains about these efforts by the Prosecutor to rebut

22 the testimony of General Krstic, and his claim that these are false and

23 montages and yet presents the same type of evidence in its surrebuttal

24 case, it is something at least that I have some difficulty in dealing

25 with.

Page 9669

1 Now, I think, Mr. President, that's all I have to say specifically

2 on these. I'm prepared to answer any questions Your Honours may have on

3 any of these categories or any of these specific pieces of evidence.

4 JUDGE RODRIGUES: [Interpretation] Mr. Visnjic, I think we have to

5 try and finish this. Have you anything to add?

6 MR. VISNJIC: [Interpretation] Mr. President, I was interrupted by

7 Mr. Harmon and I just wanted to finish and I will be very brief regarding

8 Exhibit 883.

9 This was given to us in February, but we were not given any

10 indication that this exhibit will be used. I have to say that the Serbian

11 copy of that document is absolutely illegible if we are talking about

12 technical matters, and this is something that can be checked in your

13 copies as well. So the document really is useless for any kind of work.

14 Since we were not provided with indications that that document will be

15 used, we didn't use it. That's point number one.

16 Point number two, the assessment of the Prosecution whether this

17 is document -- this was a document, that is, directive number 4, and

18 whether it's related to any other documents, we believe that these -- they

19 relate to two different time periods, and I don't see, in particular,

20 which connection this document has with the testimony of General Krstic.

21 One is from 1992 and the other is from 1995. The fact that the Defence in

22 a certain way has played into the Prosecution's game and has posed

23 questions regarding the authenticity to witnesses who were here, simply in

24 view of the fact we did not have a ruling by the Trial Chamber, we were in

25 a dilemma whether we should ask anything -- the witnesses anything or not.

Page 9670

1 So in case these exhibits in a certain way are not accepted, everything

2 that we ask the witnesses in connection with these documents should be

3 deleted from the transcript, ignored.

4 There is one more point, Mr. President, regarding the problems

5 that the Prosecution has with the documents that they have in their

6 possession. Almost at each meeting with the Prosecution we would ask for

7 documents in accordance with Rule 68, and we never specifically received

8 them. We received an explanation that there is no obligation on the side

9 of the Prosecution -- on the part of the Prosecution to do that. The

10 documents that we received, we ourselves found certain conversations that

11 were not used by the Prosecution. I don't know whether there are other

12 such conversations or intercepts in the documents that the Prosecution has

13 in accordance with Rule 68, or just the fact that the Prosecution does

14 have such a vast number of documents to them means that they are the only

15 ones who should use them and not the Defence as well. If the Prosecution

16 does have so many documents and they cannot find documents which would

17 accuse the accused, perhaps then there are other documents in accordance

18 with Rule 68 which could be -- which are exculpatory and which could be

19 revealed, and this has not been done.

20 JUDGE RODRIGUES: [Interpretation] Mr. Harmon?

21 MR. HARMON: It's with great reluctance that I prolong this

22 debate, Mr. President, but the assertion by my colleague that he has never

23 received a Rule 68 document is false. He has received document -- I'm

24 going to quote him what is in the record here: "At each meeting with the

25 Prosecution, we would ask for documents in accordance with Rule 68 and we

Page 9671

1 -- and we never specifically received them."

2 Now, perhaps my colleague would like to refresh his recollection

3 on that statement and make a retraction of that statement. It's a new

4 issue, and it's one that, very frankly is one that is unnecessary at this

5 stage of the pleadings -- of the proceedings, and it is one for which

6 there has never been a claim, and it's one which Mr. Visnjic well knows we

7 have given him documents in respect of Rule 68. Mr. McCloskey has sat

8 with Mr. Visnjic for many hours discussing issues that may be related to

9 Rule 68. Perhaps my colleague wishes to retract that statement so the

10 record is perfectly clear in that regard.

11 In respect of the motion to continue, I was going to address that

12 separately. I should have done it perhaps at the time. But my colleagues

13 in their motion state that they were never put on notice that an effort

14 was necessary - I'm referring to paragraph 15 of their motion - that the

15 Defence has never been put on notice that such an effort need be

16 undertaken.

17 The indictment specified in the time period from July to November

18 1995 is the relevant period of this case. Paragraph 1 of the indictment

19 refers to 1992. They were put on direct notice that 1992 was a matter

20 that they should have investigated because there are allegations in that

21 paragraph. It was a paragraph they did not agree to in terms of agreed

22 matters of fact or law. And furthermore, it is a matter that has been at

23 issue in this case for a considerable period of time.

24 There have been documents relating to the period in question:

25 Prosecutor's Exhibit 30, a UN report on Srebrenica; Exhibits 33 through

Page 9672

1 37, which are numerous reports prepared by Tadeusz Mazowiecki from 1992

2 and 1993; Mr. Butler addressed the issue of the background of the war in

3 1992; paragraphs -- that's Prosecution Exhibit 403, paragraphs 1.0 to

4 1.4. Professor Radinovic in his report addressed 1992. The Trial Chamber

5 has asked questions about the background of these events.

6 So when the Defence asserts that it needs more time to investigate

7 this because, quote, "It has never been on notice that such an effort need

8 be undertaken," I think the record speaks clearly for itself, as does the

9 indictment itself.

10 Those are my only remarks, Mr. President. I have nothing further,

11 and thank you for your indulgence.

12 JUDGE RODRIGUES: [Interpretation] To finish, please, Mr. Visnjic.

13 MR. VISNJIC: [Interpretation] Mr. President, Mr. Harmon is right.

14 I will retract that part of my statement; namely, I did start talks with

15 Mr. McCloskey directly and after our request for the delivery of certain

16 exculpatory material. And in that sense, I did make a mistake. But also,

17 just by mentioning and accepting the fact that 1992 is mentioned in the

18 indictment, the Prosecution has admitted that they should have used this

19 exhibit during the case in chief, if it is something that is of major

20 importance. I, Mr. President, don't know what happens in the offices of

21 the Prosecution regarding evidence in the same way that they don't know

22 what happens in our offices regarding evidence, and I think that each

23 should bear their own responsibility in this regard.

24 JUDGE RODRIGUES: [Interpretation] We are going to prepare a

25 decision which will have to be published as soon as possible because we

Page 9673

1 understand that you need this ruling from us to be able to continue your

2 work. Today, we are going to stop there, and so the hearing is adjourned.

3 --- Whereupon the Exhibit Motion Hearing adjourned

4 at 5.45 p.m.

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