1 Friday, 31st October 1997
2 (10.00 am)
3 JUDGE KARIBI-WHYTE: Good morning, ladies and gentlemen.
4 Let us have the appearances.
5 MR. NIEMANN: Your Honours please, my name is Grant Niemann,
6 I appear with my colleagues Ms. McHenry, Mr. Turone and
7 Mr. Khan for the Prosecution, your Honours.
8 JUDGE KARIBI-WHYTE: Can we have the appearances for the
9 Defence, please.
10 MS. RESIDOVIC: Good morning, your Honours. I am Edina
11 Residovic, appearing on behalf of Mr. Zejnil Delalic,
12 along with my colleague Eugene O'Sullivan, professor
13 from Canada.
14 MR. OLUJIC: Good morning, your Honours. I am Zeljko Olujic,
15 appearing on behalf of Mr. Zdravko Mucic, along with Mr.
16 Michael Greaves.
17 MR. KARABDIC: Good morning, your Honours. I am Salih
18 Karabdic, attorney from Sarajevo, appearing on behalf of
19 Mr. Hazim Delic, along with my colleague Tom Moran,
20 attorney from Houston, Texas.
21 MR. ACKERMAN: I am John Ackerman. Cynthia McMurrey and
22 I are appearing here today on behalf of Mr. Esad Landzo.
23 JUDGE KARIBI-WHYTE: Thank you very much. Can we have your
24 next witness?
25 MR. NIEMANN: We have a witness available today. Before
1 I move on to that witness, in relation to matters raised
2 yesterday, firstly, in terms of the issue of what the
3 Prosecution's obligation is concerning discovery of
4 articles and so forth of an expert witness, I have
5 obtained a copy of the relevant decision of the Trial
6 Chamber in the Blaskic case, the decision of 27th
7 January 1997. It is instructive in paragraph 40, which
8 I have highlighted, as to the obligations, namely that
9 there are none on the Prosecution to produce this
10 material. I make available that copy to the Defence and
11 to your Honours. I shall do that.
12 In addition, your Honours, I have extracted my
13 personal copy of the Gow articles, which I reluctantly
14 make available to the Defence. I say reluctantly
15 because they have my markings on and my own work
16 product. I think it is to me unreasonable that I should
17 have to make available material which has my own
18 workings and markings on it. In the interest of trying
19 to get this matter done I have four copies. I do not
20 vouch for the fact they cover everything that Dr. Gow has
21 ever written. I know the fact -- I know for a fact that
22 he has written other material. I do not consider it in
23 any way my responsibility to do their research. If they
24 wish to research other matters it is up to them to do
25 so. No responsibility falls on the Prosecution's
1 shoulders in that regard.
2 In addition to that your Honours, I am going to --
3 Dr. Gow is coming to The Hague over the weekend. I am
4 not going to stop him from doing that. I think he
5 should still come to The Hague, but in the event that
6 the Defence are not in a position to cross-examine him
7 at the conclusion of his evidence-in-chief it is my
8 application to your Honours that I do not call him, that
9 we arrange for another witness to be made available.
10 There is also the issue of the outstanding
11 argument on the admissibility of the Austrian documents
12 which I think will probably take some time. We can
13 utilise, I think, our time very usefully in that way.
14 But if the Defence are not ready I would be asking your
15 Honours that I do not have to call him to take his
17 MR. ACKERMAN: Your Honour, let me respond in two ways.
18 First of all, I am grateful to Mr. Niemann for clarifying
19 the issue of the Prosecution's responsibility in this
20 regard, and it is now very clear when looking at what he
21 supplied us this morning what that is. With that in
22 mind, I have not even looked at the documents that
23 Mr. Niemann supplied us this morning. If he truly feels
24 by supplying those he is divulging information that he
25 should not be divulging to us in terms of the notes he
1 has on them, I will be pleased to hand my copy back,
2 because that is totally in his province whether he might
3 disclose any notes or markings he might have made on
4 these documents. I feel very uncomfortable being in
5 possession of those unless he absolutely agrees he has
6 no problem with that whatsoever.
7 Finally, with regard to his last submission that
8 he should not call Dr. Gow next week but perhaps put him
9 off to the time when there is no possibility of the
10 problem we discussed yesterday existing, I can only say
11 this to the Trial Chamber: having not looked at the
12 documents Mr. Niemann has supplied I do not know whether
13 or not all the documents from Jayne's are contained in
14 there or not. We did not receive the documents from
15 Jayne's yesterday. There is that period of time until 5
16 o'clock today when they could be received. If they are
17 received there will not be any problem; if they are not,
18 then there will be and I think I would be entitled to
19 make the same kind of application we made yesterday with
20 regard to Mr. Economides. I can only say we have been
21 diligent and in good faith trying to gather these
22 documents together. Probably in the interest of
23 fairness and efficiency Mr. Niemann's request that Mr. Gow
24 be put off until our December sitting or whenever he had
25 in mind might very well avoid a problem next week.
1 I leave it up to the Trial Chamber, but that is the best
2 I can do right now.
3 MR. MORAN: Along the same lines; first I would like to thank
4 Mr. Niemann for providing this. I placed mine upside
5 down. If there is any way he can extract, cover up,
6 black out, white out, whatever, any of his notes,
7 I frankly would feel more comfortable with these. As
8 for a scheduling, if he would be more comfortable
9 putting Dr. Gow off that is fine with us. If he is more
10 comfortable putting other witnesses on, I noticed there
11 were like six names on the list, four names he just gave
12 us on a list for next week, to save Professor Gow a
13 trip, if that is what Mr. Niemann thinks would be
14 appropriate or necessary. Whatever makes his scheduling
15 easier, because we understand the problems and we know
16 we will be facing the same problems of international
17 plane travel and scheduling witnesses and things like
18 that. I am willing to go along with whatever Mr. Niemann
19 thinks might make it easier for him to present his
21 JUDGE KARIBI-WHYTE: Thank you very much.
22 MR. NIEMANN: I am indebted to my colleagues for that. Your
23 Honours, with respect to the material itself there are
24 only markings on the material, I have taken the
25 precaution of removing my hand-written notes.
1 Nevertheless, that does indicate the areas of the
2 articles I concentrated on. I do not mind if that
3 material is seen by Defence counsel; if they feel they
4 may benefit from my notes, so be it. If the Defence feel
5 it may be helpful to them, then my markings are there
6 for them to look at.
7 I think it would be proper that Dr. Gow does not
8 testify on Monday and Tuesday as was planned. I think
9 that obviously, from what has been said now, the Defence
10 are not in a position at the moment and it is likely
11 they will not be in a position on Monday. For that
12 reason I think if we can we will try to make other
13 arrangements. If I have any further news on that aspect
14 of the matter during the course of today I will inform
15 the Chamber about that.
16 If your Honours please -- excuse me. I might just
17 foreshadow your Honour, we will put in a written motion
18 but we do intend -- your Honours have not seen the list
19 of witnesses for next week, but one of the witnesses
20 that we do intend to call during the course of next week
21 is a United Nations security officer. We will need to
22 seek your Honour's leave to call that witness and we
23 will file a motion in that respect during the course of
25 In addition, your Honours, we will be, in the
1 course of next week, endeavouring to recall a witness
2 that was called previously, with the pseudonym
3 Witness J. I do not believe I need leave to file an
4 application for leave for that. If your Honours would
5 prefer I can incorporate that in the motion as well. So
6 I just foreshadow that it may transpire that we -- those
7 witnesses may be moved forward and give their evidence
8 early in the course of next week. It was proposed that
9 they would give their evidence in the latter part of the
11 JUDGE KARIBI-WHYTE: When you might have seen your position
12 let me know what the arrangements can be. Let us have
13 your next witness.
14 MR. NIEMANN: I call Adem Omerkic.
15 (Witness enters court)
16 ADEM OMERKIC, (sworn)
17 Examination-in-chief by MR. NIEMANN
18 JUDGE KARIBI-WHYTE: You can take your seat, please.
19 MR. NIEMANN: Sir, would you please state your full name?
20 A. My name, your Honours, my name is Adem Omerkic.
21 Q. And Mr. Omerkic, did you complete studies at the
22 University of Sarajevo?
23 A. Yes, I did.
24 Q. What was your field of study?
25 A. I studied at the faculty of philosophy, comparative
1 literature and library work, and I graduated at that
3 Q. And did you do post-graduate studies in political
5 A. I am now attending post-graduate courses at the faculty
6 of political sciences in Sarajevo. I have another
7 examination left.
8 Q. Are you a member of the army of the Bosnia-Herzegovina
10 A. Yes.
11 Q. When did you join the army?
12 A. Officially on the 8th April, 1992.
13 Q. And did you take part in the military activities in and
14 around Sarajevo in 1992?
15 A. Yes. I participated in the defence, the defence of
16 Sarajevo, in the defence against aggression. We were
17 attacked. We were defending ourselves.
18 Q. What is your current rank?
19 A. I am Captain by rank.
20 Q. What position do you hold at the moment in the army of
21 the Bosnia-Herzegovina Federation?
22 A. I am acting head of the department for archives.
23 Q. And when did you become acting head of the department
24 for archives?
25 A. Officially on the 1st March I assumed that duty when my
1 predecessor retired; and in the second of 1996, no 1997
2 -- I am a bit confused. I was appointed for as acting,
3 acting head of the department for archive materials, but
4 on March 1st this year I actually assumed that office.
5 Q. And when did you first become involved in working with
6 the archives of the army of the Bosnia-Herzegovina
7 Federation? When did you first become involved?
8 A. For the first time that was in the second half of 1996
9 or 1997 -- I am sorry, I just do not know. I am
11 Q. Do not be too nervous, try to settle down. Just relax a
12 bit. Can you tell the court what the purpose of this
13 archive is?
14 A. The purpose of the archives is to gather documentation
15 from the period of aggression against
16 Bosnia-Herzegovina. That is the military documentation,
17 to collect, process and prepare those documents so that
18 they can be properly filed.
19 Q. The documents that you archive, are they exclusively
20 military documents?
21 A. Mostly, yes; but sometimes there are documents that
22 somehow get their way there and there are also some
23 documents from the former Ministry of Defence, from
24 before the war. But that is of a lesser quantity.
25 Mainly we collect documents during the aggression, that
1 is documents from the units who were there. This mainly
2 has to do with orders, reports, operative log books and
3 that sort of thing, analysis --
4 Q. I am sorry, I interrupted you. Keep going. The
5 documents that you collect, are they documents from the
6 army of Bosnia-Herzegovina or does the collection
7 include other documents such as captured documents?
8 A. I said that mostly these are documents from our units;
9 but there is a smaller proportion of captured documents,
10 captured materials, but this is a smaller, insignificant
12 Q. As the acting chief of the document archives, what are
13 your duties and responsibilities?
14 A. My duty is to work on the filing and processing and
15 actually the implementation of the provisional rules
16 sent to all our units. That is, we are engaged in an
17 effort to establish a system of keeping records in our
18 units, so that to keep them in a more systematic way, so
19 that we have sent certain rules, and some of my staff
20 have toured units on the ground to try to help them
21 implement this. Therefore, my duty is to organise the
22 work and to control the work and to do everything that
23 needs to be done to organise the archives, though this
24 is not really the archives as a whole, but it is a
25 department of the archives dealing with documentation.
1 Q. Do you strive to make sure that your documents are
2 maintained in a proper order and good condition?
3 A. I think I do. We had many problems, and we had problems
4 throughout the aggression. There was a shortage of
5 paper and other essentials, and there was also a fire in
6 the building where the archives were kept. I personally
7 participated in the efforts to put out the fire and a
8 chandelier fell on my head so I actually personally
9 participated in saving the documentation from that
10 building and we worked on it until late at night. That
11 is one of the ways, though we do not have adequate
12 conditions even now, but we are striving to protect what
13 we have, to make a system out of it, and we are also
14 working on continued collecting of material. So we are
15 doing our best. I personally am trying -- am doing my
16 best, and so are members of my staff.
17 Q. How many members of staff do you have working for you,
18 Mr. Omerkic?
19 A. I and four women, four members of staff -- five,
20 actually, including myself.
21 Q. Now, I think you mentioned earlier that you have set
22 procedures, do you, for the collection and maintenance
23 and processing of these documents?
24 A. Yes. I said that we have provisional rules, provisional
25 regulations, which are not treated as anything
1 permanent. These are provisional regulations, covering
2 a definite period, the period of aggression. In view of
3 the specific nature of the material from that period,
4 these regulations have been adopted as provisional ones
5 and as such have been sent to all units.
6 Q. Now, in the past and today was the army of
7 Bosnia-Herzegovina divided into different corps?
8 A. Yes. Yes. There is the general staff, then there were
9 five corps, then there were the brigades, smaller units
10 and then still smaller units were companies, and so on.
11 So yes, the armed forces were divided into corps, four
12 corps and each corps had to have a person responsible
13 for, in the administration, responsible for the
14 archives, and in smaller units that depended on needs
15 and possibilities. Everybody was supposed to work in
16 that area, but there were problems there.
17 Q. Now, in the archives of the actual corps themselves,
18 where are they located? Are they located with the corps
19 or are they located in Sarajevo?
20 A. An order regulated and determined a date by when all the
21 documentation had to be submitted to the central
22 archives, but this deadline was postponed. Because of
23 the situation linked with the fire we had to extend the
24 deadline, and since we are working under impossible
25 conditions, but we are still working, we have postponed
1 this deadline so that the people in the corps should
2 continue working on those documents and preparing them
3 for hand-over, but that they should keep them in the
5 Q. So what you are saying is that you have some documents
6 in your collection but some documents are still in the
7 archive of the corps, but you anticipate that ultimately
8 they will all come over to your archive. Is that a
9 summary of the position?
10 A. Yes, and we hope that that will happen, or rather those
11 are the orders given to those units, and the people
12 working there have an obligation to hand them over; but
13 then there too there are problems, because the
14 continuous transformations made in the army of
15 Bosnia-Herzegovina have resulted in many people being
16 demobilised and in the archives people were usually
17 working who were, as a result of the transformation,
18 demobilised, so this problem was not quite adequately
19 addressed, sufficient attention was not devoted to these
20 activities so that we are having problems with the
21 collecting of these documents.
22 Q. So some of the documents were lost and others presumably
23 destroyed. I gather others may have been taken by
24 people leaving the army or following demobilisation, is
25 that correct?
1 A. It is possible. There may have been such cases, though
2 I do not know. But I know that there were cases that we
3 would find a whole pile of documents, sometimes the
4 documents would be placed in inadequate conditions, so
5 it may have been humid or something. So there may have
6 been individuals who took some documents with them, but
7 there are documents that we are still searching for and
8 that is part of our work too.
9 Q. In other words, your collection is not a complete
10 collection and nor would you presumably expect it to be?
11 A. It is not complete and we do not expect that we will
12 ever be able to collect everything; but we are trying
13 very hard; in view of the very difficult conditions
14 under which we are working, we are doing our best to
15 collect as much as we can.
16 Q. What arrangements are in place for documents to be
17 delivered to your archive from the various sources from
18 which you receive it? Do you have any set procedures in
19 place for that?
20 A. It is the usual manner of our work. We cannot go after
21 an individual and ask him about documents if he is no
22 longer there, for instance a commander of a unit, if he
23 has left or he had died, we do not know what happened to
24 his documents; but wherever we have a possibility
25 through the official military channels, through our own
1 orders, where we are able to direct people to work
2 towards turning it over to us, this is what we are
3 working on, wherever we have a possibility. Where we do
4 not ...
5 Q. How are the documents physically maintained in your
6 archive? How do you keep them in the archive?
7 A. I said that because of the fire that we had the building
8 is no longer fit, so we had to put everything in the
9 park and then into another building and then into a
10 third building and practically we just piled up all
11 these registers on top of one another because we did not
12 have any shelving and we did not have any other space
13 where to put it.
14 Q. Can I interrupt you a bit? I was perhaps a little
15 misleading. How do you organise the documents in the
16 archive, not physically how they are stacked or kept?
17 A. Very well. We have divided them by corps, so by the
18 unit, and within each register there are -- the reports
19 are separate, orders are separate, operations, log books
20 are separate. So it is by the subject. It is
21 classified by the subject.
22 Q. And is there a, in your collection, a binder or a
23 collection specified for the 4th Corps of the army of
25 A. Yes. We have not one binder but several binders, maybe
1 one binder was particularly relevant here, but there is
2 a lot of documents -- there are a lot of documents. So
3 the 4th Corps, for the units of the 4th Corps there are
4 quite a few documents. However, with the
5 transformation, with the 3rd and 4th Corps they are
6 practically dissolved, so all the documents from the 3rd
7 and the 4th Corps have been inherited by the unit that is
8 now in existence there, which is a division. So they
9 have now the obligation to take care of these documents
10 so that these documents can be turned over to us. So it
11 is not one binder, there are multiple binders.
12 Q. Did you first receive documents -- when did you first
13 receive documents from the 4th Corps into your archive?
14 Can you remember that?
15 A. When I first arrived the documents of the 3rd and
16 4th Corps were in the process of being turned over. The
17 archive of the 4th Corps was being delivered, but it was
18 not processed professionally, so it was returned to them
19 in order to get processed. When I arrived these
20 materials have been processed properly, and together
21 with the other staff I was there when it was delivered
22 to us. So that was my first contact with the documents
23 of the 4th Corp. And later I also took part, this was
24 later after four or five months, when they gather
25 further documents from their units or they deliver it to
1 us and we take it over and if we -- we looked it over
2 and if certain things were not properly processed we
3 would return them to them so -- in order for it to be
4 properly processed. So this is an ongoing process.
5 Q. So you did examine the documents that you received from
6 the 4th Corps?
7 A. Yes, a part of it, part of the documents. I had --
8 I reviewed part of it.
9 MR. NIEMANN: Do you know a General in the army of
10 Bosnia-Herzegovina with the name Delic?
11 JUDGE JAN: Delalic.
12 MR. NIEMANN: No, your Honour, General Delic.
13 MR. MORAN: Your Honour, my client appreciates the promotion
14 and wonders whether the salary will come with it.
15 A. The commander of the joint army of the Federation of
16 Bosnia-Herzegovina is General Rasim Delic, and you have
17 had something else in mind maybe, it is not clear to me,
18 but this is the Commander Delic and the person who --
19 MR. NIEMANN: Did he give you an order to locate certain
20 documents in your archives?
21 A. Yes. This is the normal practice, that I received an
22 order by the General that I should provide certain
23 documents for somebody's review; but this is the proper
24 way for me to get from General Delic an order, he issues
25 a document for me to turn it over to someone else to
1 look at it.
2 Q. When General Delic gives you an order in relation to
3 handing over documents, what steps do you take in order
4 to keep a record of the documents that you issue to
5 third parties? What do you do when you do this, when
6 you comply with your order?
7 A. Again, this is an usual practice. Whichever document we
8 issue to another party, we register it and we keep this
9 record, and we compile a report to our superiors. So we
10 keep a ledger of the documents that were issued to other
11 parties that we keep.
12 Q. In September of 1997, this year, did you receive an
13 order from General Delic concerning the making available
14 of certain documents to this Tribunal, the International
15 Tribunal in The Hague?
16 A. Yes.
17 Q. And what did you do when you received that order?
18 A. Together with my staff we immediately embarked on the
19 task. We formed a task force so that we could deliver
20 all the documents in our possession, and we did as much
21 as we could, given, again, the difficult circumstances
22 under which we work. So we were all involved in looking
23 for these documents and for providing the photocopies of
24 these documents. Parallel to that, I had other
25 obligations in the 3rd Corps, so part of the staff work
1 there, so we had this task force that were responsible
2 directly to the General for this task, and the part of
3 the team went to the 3rd Corps and this 3rd Corps was also
4 dissolved last month. So we went down there in order to
5 receive the documents that they still had in their
7 Q. I will not ask you about the 3rd Corps, I think. I think
8 we will just keep to the 4th Corp.
9 Now, with the documents that you extracted, did
10 you keep a record of these documents and did you review
11 the documents that you had extracted from the archives?
12 A. Yes, we register them, and recorded them all.
13 Q. And the documents that you extracted, did you make a
14 list for your own personal records of the ones that you
15 had extracted from the archives and had made available?
16 A. Yes.
17 Q. And --
18 A. Yes, we did. We did. We made a list and we kept it in
19 this ledger, so that we know what we issued.
20 Q. What matters -- what aspects of a document do you rely
21 on when you are in the process of authenticating the
22 document for your archive? What physical
23 characteristics of the document do you look for in order
24 to satisfy yourself that the document is a genuine
1 A. First of all, it is the stamps. The stamps for which we
2 know how they look, what colour they are, so visually
3 they are immediately recognisable. Also certain
4 signatures, which by now we have remembered quite well,
5 and also the look of certain documents, the format. The
6 manner of correspondence we can recognise, but the
7 stamps are the key factor for recognition.
8 Q. Now in addition to that, when you enter a document into
9 the archive and satisfy yourself as to its authenticity,
10 do members of the staff of the archive, including
11 yourself, make any markings on the document?
12 A. When we process the documents myself and my staff all --
13 not only us in the, in the central archives, but also in
14 the units, we classify things, because when we first get
15 the documents they are all mixed together. So when
16 processing we take a lead pencil and up at the top we
17 just write down the register number, so with just lead
18 pencil we write down 1, 2, 3, so that we would make our
19 work easier for ourselves; but this -- because it is
20 lead pencil this can be just erased very easily, so this
21 is what we have resorted to, but that is sort of the
22 leeway that we have given ourselves. So just with a
23 lead pencil up at the top. It was just to facilitate
24 our own, and simplify our own work. And also too when
25 we look for a document, and let us say we have a list of
1 documents there and we have under item 10 from such and
2 such a date, so that we would not look for all the data,
3 we just look for this number written in this lead pencil
4 and that makes it easier for us.
5 Q. Now, are the documents that you keep in your archive
6 relied on by the army of Bosnia-Herzegovina Federation
7 as genuine records for the purposes of the operation and
8 business of that army?
9 A. As a rule, the originals cannot be taken out of the
10 archives, but on General's orders we provide a copy. So
11 if the person is -- if a party is interested we are
12 giving them a copy but because of the General's order
13 the originals never leave the archive.
14 Q. I think maybe you did not fully understand my question.
15 I will re-phrase it if I can. The documents that are
16 kept in your archive, are they used from time to time by
17 the army of Bosnia-Herzegovina as the genuine records of
18 the army?
19 A. Authentic, yes, yes. But again with the General's
21 Q. What you are saying is not the originals but copies are
23 A. Yes. Yes.
24 MR. NIEMANN: Okay. Now would you look at the document that
25 I now show you. If your Honours please, it is now
1 admitted as an exhibit, Defence Exhibit D120/1. But
2 I will show the witness the copy I have here, and there
3 is a copy for the Defence as well. There is also a copy
4 for your Honours. It may be easier. Could I just check
5 that there is not confusion? I want to make sure that
6 we have the right one. Perhaps this one is a very poor
7 copy. That is your copy there. Would you give the
8 witness the better copy, the copy that is clearer, so
9 attach it to that one and give it to the witness; and
10 these ones here are the English version of it. What has
11 happened, I just explain it now, what is going on.
12 These documents were copied for the benefit of the
13 Defence, and they had copies given to them some weeks
14 ago. Madam Residovic tendered this particular document
15 during the course of the cross-examination of I think it
16 was General Divjak. The copy, because it is a photocopy
17 of a photocopy of a photocopy, the quality of them has
18 been disintegrating. The copy I am asking the witness
19 to look at is the best original copy we had. If you
20 could see that it would help, because there are markings
21 on this document which he can see which no longer appear
22 on the original exhibit. If I may I will ask that the
23 copy of the version that the witness looks at be
24 attached to the exhibit, if that is in order.
25 He has not been given the copy, after all that.
1 Would you please give him a copy?
2 JUDGE JAN: Is this Tactical Group 2?
3 MR. NIEMANN: There is a reference up the top there to
4 Tactical Group 2. I see that, your Honour. Perhaps
5 just looking at the one that you have now been shown,
6 Mr. Omerkic, do you recognise this document?
7 A. If you permit me, sir, may I refer to my notes, please?
8 Q. Do you ask their Honours' permission to look at your
10 JUDGE KARIBI-WHYTE: Yes, you can.
11 MR. NIEMANN: You may refer to your notes.
12 A. I am seeking permission from the court to consult my
14 JUDGE KARIBI-WHYTE: Yes.
15 JUDGE JAN: This is a better translation of the one which
16 was provided by the Defence.
17 MR. NIEMANN: Yes, your Honour, it makes more sense.
18 A. Yes, your Honours, this is the -- there is an original
19 of this document in my archive.
20 Q. And what do you recognise this document as?
21 A. To me this is a document first of all that was signed by
22 the then chief of the army, and was stamped with the
23 proper stamp. My assumption is that it is in red
24 colour, the stamp, and very clearly stamped. I remember
25 that we searched for this one quite a long time, but it
1 is there in our archive.
2 Q. Is this a document that is relied on as a genuine
3 document of the army of Bosnia-Herzegovina?
4 A. Yes. Yes. We consider it authentic.
5 MR. NIEMANN: That has been tendered, so I will not seek to
6 tender it, your Honours. Perhaps that document may now
7 be handed back to the Registrar. The next document, if
8 your Honours please, has been tendered as an exhibit.
9 It is Exhibit 132/1. Again, might these documents with
10 the original exhibit and the copy that I have provided
11 be married together, because again the photocopy is a
12 slightly better copy and the translation is slightly
13 different as well. Might a copy be provided to the
14 Defence and their Honours? Might the witness be shown a
15 copy of the exhibit that I have provided?
16 Again, Mr. Omerkic, by looking at that document do
17 you recognise it?
18 A. Yes, I do recognise it.
19 Q. And what is it?
20 A. This is a document whose original exists in my archive,
21 and it is signed by the chief of the army, a document
22 that I know quite well.
23 Q. And by reference to the markings that you see on that
24 document, are you able to say whether you consider it to
25 be a genuine record of the army of Bosnia-Herzegovina?
1 A. Yes. Yes, I can. It is an authentic document.
2 Q. I do not tender that, your Honours, because again it has
3 been tendered previously.
4 Mr. Omerkic, could the documents in front of you be
5 returned to Madam Registrar? Would you look at the
6 documents that you are shown? This document has not as
7 yet been introduced. It will need to be allocated the
8 next number in order for the Prosecution exhibits.
9 Might the copies be given to the Defence and to their
10 Honours, and a copy of the Serbo-Croat version handed to
11 the witness.
12 THE REGISTRAR: Prosecutor Exhibit 195.
13 MR. NIEMANN: Mr. Omerkic, would you please look at the
14 document that you are now shown? A copy of this
15 document has previously been provided to Defence
16 counsel. Mr. Omerkic, do you recognise that document
17 that you have there?
18 A. Yes, I do.
19 Q. What is it?
20 A. Actually this is a copy of the original which we have in
21 our archives.
22 Q. And having regard to the markings that you see upon that
23 document, do you consider it to be a genuine document of
24 the army of the government of Bosnia-Herzegovina?
25 A. Yes. Yes, we do consider it to be an authentic document
1 of the army of Bosnia-Herzegovina.
2 MR. NIEMANN: I tender that document, your Honour.
3 JUDGE KARIBI-WHYTE: Yes, it is admitted.
4 MR. NIEMANN: Might that document be now returned to Madam
5 Registrar? This is again a document that has not, as
6 yet, been tendered. A copy has previously been provided
7 to the Defence. Might the witness be shown the version
8 of the document in Serbo-Croat? Might the two versions
9 of the document be handed to the Defence and to their
10 Honours. Might it be given the number next in order for
11 the Prosecution exhibits.
12 THE REGISTRAR: The Prosecutor document 196.
13 MR. NIEMANN: Mr. Omerkic, do you recognise the document that
14 you now have before you?
15 A. Yes, I recognise the document, but here I do not see
16 clearly the stamp. The stamp can hardly be seen, but
17 I think that in the original there is a stamp and I have
18 noted it down. Therefore we do have the original. But
19 on the copy the stamp is not visible. But I do consider
20 it to be authentic and quite true to the original which
21 we have in our archives.
22 Q. Do you see on the document any markings that have been
23 made by your archive which would indicate to you in
24 addition whether or not it is an authentic document of
25 the archive? Can you tell us what it is that you would
1 look to for that purpose?
2 A. I see our numbers that we put down, 69, we can see that
3 I think it is. This was written by us with an ordinary
4 pencil, so I recognise by that in addition to everything
5 else when I was telling you about the ordinal numbers we
6 would put on a document. So this was one of our staff
7 who put down this number.
8 Q. The number 69 appears towards the top of the page,
9 slightly to the right of the centre of the page. It is
10 faint but it can be seen, 69?
11 A. It is written in an ordinary pencil, so one of our staff
12 wrote that down when processing the documents.
13 MR. NIEMANN: I tender that document, your Honour.
14 JUDGE KARIBI-WHYTE: Exhibit 196 Prosecution's is admitted.
15 MR. NIEMANN: Might that exhibit be removed from in front of
16 the witness? Could the witness be shown the Serbo-Croat
17 version of this document? There are copies for the
18 Defence and for their Honours. This is a document that
19 has not previously been introduced, so it needs to be
20 allocated the next number in order for Prosecution
21 exhibits. It is a copy -- a copy of the document has
22 been made available previously to the Defence.
23 THE REGISTRAR: Prosecutor Exhibit 197.
24 A. Yes, I recognise this document too.
25 Q. Perhaps you would like to wait a moment, Mr. Omerkic,
1 because we have to make sure everyone gets a copy first
2 before we talk about it.
3 A. Excuse me.
4 Q. Now, Mr. Omerkic, do you recognise that document?
5 A. Yes, I do.
6 Q. What is it?
7 A. It is a document that we have in our archives. It is
8 quite recognisable by all its elements.
9 Q. Having regard to the markings that you see on the
10 document, do you consider it to be a genuine document of
11 the archive?
12 A. Yes, by the markings and everything else, yes, it does
13 exist in our archives. We have the original of this
14 copy, photocopy.
15 MR. NIEMANN: I tender that document if your Honour pleases.
16 Might that exhibit be removed from the front of the
18 JUDGE KARIBI-WHYTE: Prosecution Exhibit 197 is admitted.
19 MR. NIEMANN: Now might this document be shown to the
20 witness, the original version in Serbo-Croat. There are
21 copies available for the Defence and for your Honours.
22 The document was previously provided to the Defence.
23 This is a new document. It has not been introduced
24 previously, so it will need to be allocated the next
25 number in order of the Prosecution exhibits.
1 THE REGISTRAR: The Prosecutor Exhibit 198.
2 MR. NIEMANN: Mr. Omerkic, do you recognise that document?
3 A. I do.
4 Q. And from the markings that appear upon the document, do
5 you recognise it as a genuine document of your archive,
6 being a genuine document of the army of
8 A. I do. I recognise it, and as such it exists, the
9 original exists in our archives.
10 MR. NIEMANN: I tender that document, if your Honours please.
11 JUDGE KARIBI-WHYTE: Exhibit 198 is admitted.
12 MR. NIEMANN: Might that document be removed from the front
13 of the witness? Might the Serbo-Croat version of this
14 document be handed to the witness while copies of it be
15 made available to the Defence and their Honours. This
16 is a document that has previously been provided to the
17 Defence. It is a document that has not as yet been
18 previously introduced into these proceedings, so it will
19 need to be allocated the next number in order of the
20 Prosecution exhibits.
21 A. Your Honours, may I address the court?
22 Q. Just a moment, everyone needs to get a copy first before
23 we talk about it.
24 A. Excuse me.
25 THE REGISTRAR: The Prosecutor Exhibit 199.
1 MR. NIEMANN: Mr. Omerkic, firstly you wanted to say
2 something. What you would like to say about this
4 A. I wanted to say with regard to all these documents
5 I hear the expression being used "Serbo-Croatian
6 version". We in Bosnia have adopted the possibility of
7 documents being written in Serbian Croatian but also
8 Bosnian. Therefore all these documents were written in
9 the Bosnian version. That is just a remark I wanted to
11 MR. NIEMANN: I do apologise, I will refer to it as Bosnian.
12 JUDGE JAN: National feelings.
13 MR. NIEMANN: I did not mean any offence by that.
14 Mr. Omerkic, just looking at the document that I have now
15 shown to you, do you recognise that document as an
16 authentic document of the army of Bosnia-Herzegovina?
17 A. Yes, I do.
18 MR. NIEMANN: Thank you. Might that document be removed from
19 in front of the witness? Might this document be married
20 with exhibit which has previously been entered, D81/1.
21 It is a slightly perhaps -- the translation is our
22 translation, so it may be slightly different. In
23 addition to that it may be a better copy of the
24 original. If that could be placed with Exhibit D81/1.
25 Might the Bosnian version of the copy that I have
1 provided be given to the witness?
2 Just while that is happening, your Honours, I have
3 been advised that apparently when your Honour admitted
4 Exhibit 199 into evidence it is not recorded on the
5 transcript. It does not appear on the transcript.
6 I heard your Honour say it was admitted.
7 JUDGE KARIBI-WHYTE: Yes.
8 MR. NIEMANN: I just note that. Let us get something clear
9 from the witness; is there any material difference
10 between Bosnian and Serbo-Croatian so that I might know
11 the differences in the translation, because there might
12 be differences.
13 MR. NIEMANN: I will ask the witness if he can tell us. He
14 is an educated man, he may know. Mr. Omerkic, are you
15 able to answer his Honour's question about the
16 difference between the Serbian language and the Croatian
17 language and the Bosnian language? Can you assist his
18 Honour with that?
19 A. We in Bosnia always considered it to be one language,
20 but since the aggressor side have made two variants, the
21 Serbian and Croatian, in the defence for our homeland we
22 fought for our own version. In my opinion they are
23 absolutely the same and the differences are quite minor
24 in the sense of the meaning of these documents. There
25 are no differences. It is one language, in my opinion,
1 but there may be some dialects. Basically it is all the
2 same, but let us call it Bosnian.
3 JUDGE KARIBI-WHYTE: Thank you very much. We are trying to
4 avoid a situation where one translation might be
5 criticised as different.
6 MS. RESIDOVIC: Your Honours, to clarify the previous
7 question, the document of the 24th of November 1992,
8 marked as 5199, the Prosecutor has suggested that it is
9 put together with one of the Defence exhibits, that is
10 with Defence Exhibit 81/1. So if I have misunderstood
11 that I want to be sure, because otherwise according to
12 my records, these are not the same documents. So
13 I should like clarification to be made of that point.
14 MR. NIEMANN: I may be moving a little quickly, your Honour.
15 The last document we dealt with was Exhibit 199. That
16 was a Prosecution exhibit, I tendered that as a
17 Prosecution exhibit. The document I have now just shown
18 to the witness is a copy of document D81/1. Perhaps
19 Madam Registrar can just check that they are the same.
20 I think there may be some confusion. It was the
21 previous document 199 that was already tendered.
22 THE REGISTRAR: The document of 24th November is 199.
23 MR. NIEMANN: The document D81/1, and the one I have just
24 made available for identification by the witness is a
25 document dated 14th August 1992.
1 THE REGISTRAR: Yes, it is true.
2 MR. NIEMANN: It is the document of the 14th August 1992 that
3 I am asking to be married with Exhibit D81/1.
4 JUDGE KARIBI-WHYTE: 82/1?
5 MR. NIEMANN: 81/1, your Honour. I do not know whether that
6 is clarified it or not.
7 MS. RESIDOVIC: I am afraid it is still not quite clear to
8 me. Could the Registry please confirm whether those are
9 identical documents under this number of Defence
10 exhibits, because I may have put the wrong number down,
11 but we must make sure whether these are identical
12 documents in Serbo-Croatian Bosnian.
13 JUDGE KARIBI-WHYTE: Actually the proper method is not for
14 Prosecution to call for the Defence witness to be
15 brought into its own exhibit. If you want to tender a
16 Prosecution exhibit go ahead and do that and then leave
17 the other one to the Trial Chamber to reconcile them.
18 MR. NIEMANN: If your Honour pleases, I will have them
19 allocated different numbers. I wanted to avoid the
20 Prosecution --
21 JUDGE KARIBI-WHYTE: It does not matter. If they are
22 identical they will both go for the same thing.
23 MR. NIEMANN: If your Honour pleases I will give them the
24 separate number. There is not many more to go.
25 MS. RESIDOVIC: Thank you. Now the point has been cleared
1 and I think that is a better procedure, because I also
2 wanted some clarifications in view of the differences of
3 the translation that have been noted by my learned
4 friend. In that case we would have to compare the
5 translations too.
6 MR. NIEMANN: In that event, I think without having to do
7 this court, the other documents I have had married to
8 Defence exhibits, if I may, with your Honour's leave,
9 endeavour to do that during the break I will organise
10 they be introduced as Prosecution exhibits.
11 JUDGE KARIBI-WHYTE: They have reasons for tendering
12 particular exhibits.
13 MR. NIEMANN: I am correcting the ones that have already gone
14 in like that.
15 The document of 14th August, 1992 now presently
16 with the witness.
17 Mr. Omerkic, do you recognise that document?
18 A. Yes, I do.
19 Q. And do you recognise it as a genuine record of the army
20 of Bosnia-Herzegovina?
21 A. Yes, I do recognise it as a genuine document of the army
22 of Bosnia-Herzegovina.
23 Q. Might this be given the next Prosecution number in
24 order, please?
25 THE REGISTRAR: The document will be marked Prosecutor
1 document 200.
2 MR. NIEMANN: Might that document be removed from in front of
3 the witness? The next document which will be given a
4 Prosecution number was, however, admitted into evidence
5 as Exhibit D77/1. Might I have the next number in order
6 for Prosecution exhibits, please?
7 THE REGISTRAR: The Prosecutor document 201.
8 JUDGE JAN: Do you have copies for us?
9 MR. NIEMANN: Yes, your Honour.
10 JUDGE JAN: I know we have got them, but go back again and
11 then look them up.
12 MR. NIEMANN: It is copied for your Honours.
13 JUDGE JAN: I want now to see what the documents have.
14 MR. NIEMANN: I have the copies, even though it has been
15 previously admitted.
16 Mr. Omerkic, looking at that document that you have
17 in front of you, do you recognise it as a genuine record
18 of the army of Bosnia-Herzegovina?
19 A. Yes, I do recognise it as a genuine record, yes.
20 Q. And it is a document that is kept in your archive, the
21 original of which is kept in your archive?
22 A. Yes, the original is kept in our archives.
23 MR. NIEMANN: Might that be admitted into evidence, your
25 JUDGE KARIBI-WHYTE: Exhibit 201 is admitted. I am not sure
1 I remembered speaking to the admission of Exhibit 200.
2 I am not too sure.
3 MR. NIEMANN: I understood your Honour admitted it. If not
4 I think the record is now clarified, your Honour, in
5 relation to that. Might the exhibit in front of the
6 witness now be removed and could he be shown the Bosnian
7 version of the document I now hand to you. There are
8 copies for the Defence and for your Honours. Might it
9 be given the next Prosecution exhibit number in order?
10 It has previously been made available to the Defence.
11 THE REGISTRAR: Prosecutor Exhibit 202.
12 JUDGE KARIBI-WHYTE: Exhibit 202 is admitted.
13 MR. NIEMANN: As your Honour pleases. The document Exhibit
14 202 which has been admitted into evidence, do you
15 recognise that as a genuine record of the army of
16 Bosnia-Herzegovina as is maintained in your archives,
17 Mr. Omerkic?
18 A. Let me just look at it once again.
19 JUDGE JAN: It does not relate to Konjic.
20 MR. NIEMANN: Excuse me, your Honour.
21 MS. RESIDOVIC: Your Honours, we object to the relevance of
22 this document. It has nothing in common with the case
23 we are dealing with.
24 JUDGE JAN: At least one witness is mentioned here as a
25 Colonel Divjak.
1 A. I do not recognise it.
2 MR. NIEMANN: I withdraw it your Honours.
3 JUDGE KARIBI-WHYTE: I think we can break now and come back
4 at 12.00.
5 (11.30 am)
6 (Short break)
7 (12.00 pm)
8 JUDGE KARIBI-WHYTE: Would the Registrar kindly remind the
9 witness that he is still on oath.
10 THE REGISTRAR: I remind you, sir, that you are still under
12 JUDGE KARIBI-WHYTE: You may proceed, Mr. Niemann.
13 MR. NIEMANN: Yes, your Honours, that is the only question
14 I had of this witness in relation to documents. I noted
15 your Honour's comments about not having some documents
16 married with Defence exhibits which I have done. I have
17 not been able to unravel it now and determine which ones
18 are which. I will have to correct that later, if we are
19 to give them Defence exhibits one. There is no
20 difficulty in the documents because they have been
22 JUDGE KARIBI-WHYTE: Your only responsibility is to present
23 your case.
24 MR. NIEMANN: Because they were the same I was trying to
25 avoid confusion.
1 JUDGE KARIBI-WHYTE: It may be confusing to take into
2 account their own exhibit while tendering yours.
3 MR. NIEMANN: I think we can identify which ones they are.
4 JUDGE KARIBI-WHYTE: We could. Because when the issues are
5 gone into you find out which is relevant to what.
6 MR. NIEMANN: That is all the questions I have of this
7 witness, your Honour.
8 JUDGE KARIBI-WHYTE: Yes. Actually the view --
9 A. Your Honours, may I address you? May I address you,
11 JUDGE KARIBI-WHYTE: In what respect? I do not know what
12 you want to say.
13 A. With respect to the previous document.
14 MR. NIEMANN: It is not necessary for you to address your
15 Honours on that. That document has been withdrawn, on a
16 different basis; not because of whether it is from your
17 archive but on the basis of its relevance.
18 JUDGE KARIBI-WHYTE: Actually your responsibility is to
19 produce documents in your custody. Having produced that
20 I think no questions are necessary about the documents
21 themselves. You know nothing about the documents. All
22 you know is that you keep them. I suppose this is all
23 for the witness, except you want to ask him whether he
24 has made any of these documents, whether he wrote them.
25 JUDGE JAN: Maybe she has to prove certain documents of her
2 JUDGE KARIBI-WHYTE: If you want to tender your own
3 documents through him you can do so.
4 MS. RESIDOVIC: Yes, your Honours.
5 Cross-examination by MS. RESIDOVIC
6 MS. RESIDOVIC: May it please the court.
7 JUDGE KARIBI-WHYTE: Yes.
8 MS. RESIDOVIC: Good morning, sir.
9 A. Good morning.
10 Q. I am Edina Residovic and I represent Mr. Zejnil Delalic.
11 Pleased to meet you. I would first like to just give
12 you information on the way we should proceed. I am
13 going to ask you questions. Since we both speak Bosnian
14 you would be able to very quickly respond to me.
15 However, everything we say needs to be interpreted into
16 one of the official languages, and taken down into the
17 transcript. So please look, there is a headset, set of
18 headphones on your right-hand side and there you can
19 hear the interpretation of what I am asking you, so when
20 you hear it finish then please respond.
21 Very well. Is it correct what I am now going to
22 ask of you? I am trying to figure out how many
23 questions I need to ask you. You have responded to the
24 question of the Prosecution that you can only
25 authenticate those documents that are in your archive,
1 is that correct?
2 A. What is correct is what I have compiled here in this
3 list; and so everything that I have taken down and
4 included in the list we have, and as I wanted to say
5 about this document that was produced before it is not
6 necessary. So if I can recognise certain elements so
7 that there is a possibility that even though there may
8 be problems in our archive, some documents got mislaid
9 and things like that, but I can vouch for these that are
10 on the list.
11 Q. Is it correct that before you can answer my question
12 regarding the authenticity you would have to look at the
13 original document, is that correct?
14 A. Yes.
15 Q. Is it correct that if I showed you a document by the
16 Supreme Commander, General Delic, that you would be able
17 to testify to it?
18 A. I could say that it looks similar to or something, but
19 for these, I can say these are the originals and our
20 army stands behind them. For anything you show me for
21 that I could say this would be up to 99 per cent it
22 looks like, it is similar to.
23 Q. Never mind, you will be able to say that to the Trial
24 Chamber when I show them to you. But is it correct that
25 we can address either you or your Supreme Command for
1 authentication of documents in your archive or to the
2 archives in one of the corps? You would be able to
3 authenticate these things? Would that be the correct
4 way in which you identify certain documents?
5 A. Anything that a person may need from our archives, they
6 can get by the letter -- through a letter that General
7 Delic issues to me. So I am a soldier and I report to
8 General Delic, so General Delic is the person to go to.
9 Q. In order to facilitate our own work and the work of the
10 Tribunal in general we do not need to discuss that now.
11 We were told another person would be called in to
12 authenticate certain documents. Is it true that you are
13 only in possession of a small amount of documents
14 controlled by the army of BiH and from the area of
15 Konjic and of the 4th Corps, is it just a small amount?
16 A. Most probably, yes, even though we did receive an order
17 which we passed down to the lower levels. This was on
18 the 27th of this month, so just two or three days ago.
19 The deadline was set for part of the documents. So we
20 received some of the documents but some of them were not
21 processed correctly, so we returned them. And then some
22 of it may have been returned back to us. So I do not
23 know. We have to see whether it was processed properly.
24 Q. Very well. Thank you, and I thank you for telling me as
25 the counsel for Mr. Delalic how to proceed in order to
1 get the documents that I need. Now I would like to
2 proceed and show D75/1, this is evidence that has been
3 already admitted. I would like to show it to the
5 Could you please tell me what you recognise in
6 this document, of the characteristics that you told the
7 Prosecutor confirm in your mind that this is an
8 authentic document?
9 A. First of all, it is the stamp. It is similar, but I am
10 not sure. The stamp is the first thing that I look at.
11 Q. Is that an original stamp of the general staff of the
12 armed forces of Bosnia-Herzegovina?
13 A. I believe it is.
14 Q. You also saw the signature of the Commander Rasim
15 Delic. Is that the signature of the Commander Rasim
17 A. I am not sure. I would even say that is rather not
18 similar to his, but I cannot say anything about that.
19 MS. RESIDOVIC: Very well. Thank you. We will return the
20 document and we will follow the procedure that the
21 witness indicated. Since the witness was not able to
22 review all the documents that the Defence has prepared
23 I am not going to ask any further questions of him.
24 Thank you.
25 Your Honours, do I understand correctly that the
1 documents offered by the Prosecution for authentication,
2 and which had previously been submitted by the Defence,
3 that all of them have been now confirmed as authentic.
4 JUDGE KARIBI-WHYTE: Why are you asking that question? At
5 the time it was tendered certain considerations were
6 taken into account in admitting it. It is not the
7 authenticity alone of the document at the moment it is
8 being admitted into evidence. That could have been one
9 of the considerations. Here what is being considered is
10 whether the document which witness has identified as
11 proceeding from his record. This is what happened here.
12 MS. RESIDOVIC: Maybe you did not understand me fully.
13 JUDGE KARIBI-WHYTE: I did. I could not, post fact to now,
14 state that all those things were authentic. I could not
15 say that after it had all been admitted on
16 considerations other than the authenticity alone. What
17 you are now asking is that now all documents which have
18 been admitted into evidence on both sides have no reason
19 to be regarded as authentic. This is why I am telling
20 you that was not the only consideration for their being
21 admitted, their relevance, their reliability, and their
22 connection with the issue for which it is being
23 tendered, all goes back to their admission.
24 MS. RESIDOVIC: Your Honours, it is obvious that I did not
25 ask the question properly. The large number of
1 documents was only identified and today these documents
2 were submitted by the Prosecutor to this witness as the
3 custodian of the archives of the Bosnian Herzegovina for
4 authentication. For instance, our evidence 77/1, 120,
5 131/1 were all identified today. At the request of the
6 Prosecution they were identified and authenticated.
7 I propose now that these documents be -- that were
8 identified also be admitted, because they were
9 identified as authentic documents by this witness today.
10 JUDGE KARIBI-WHYTE: If he should have taken them as he did
11 and they are identified as authentic documents they are
12 admitted as such. They have their full value on the
13 fact that they are consistent with the originals in his
14 records. That is consistent with this.
15 MS. RESIDOVIC: So I understood you correctly then, your
16 Honour, that the documents whose authenticity was
17 confirmed by this witness today that they are also
18 admitted -- accepted as the evidence introduced by the
19 Defence. I am sorry, this is the first time that I am
20 involved in a case in which the process of
21 identification is being handled in this way.
22 JUDGE KARIBI-WHYTE: That is done while the witness is
23 here. It has no further purpose than that. That is all
24 we have for this witness.
25 JUDGE JAN: Other counsel might like to ask questions. Ask
2 JUDGE KARIBI-WHYTE: I do not think so.
3 JUDGE JAN: Any further cross-examination by any other
5 MR. OLUJIC: Yes, your Honour, with your permission.
6 Cross-examination by MR. OLUJIC
7 MR. OLUJIC: May it please the court.
8 JUDGE KARIBI-WHYTE: Yes.
9 MR. OLUJIC: Thank you. Good afternoon, sir.
10 A. Good afternoon.
11 Q. I am Zeljko Olujic, Defence counsel for Mr. Zdravko
12 Mucic. I would like to ask you several questions, but
13 beforehand we need to clear up one matter; for the
14 easier communication of my questions in the courtroom,
15 since I speak Croatian and you speak Bosnian, please
16 wait until the question has been interpreted into
17 English and French, and only answer thereafter. Do you
18 agree with that?
19 A. Yes, I do agree with that.
20 Q. Thank you. Sir, during the examination-in-chief you
21 said that you studied at the faculty of philosophy and
22 that you studied library science, is that correct?
23 A. Yes, it is correct.
24 Q. Was archival science a special subject of your study?
25 A. No.
1 Q. Tell me, do you know that there is legislation in
2 Bosnia-Herzegovina regarding archival work?
3 A. Yes, it does.
4 Q. As the head of the archive department in the Ministry of
5 the Defence do you have to respect that law?
6 A. Yes, but I need to add -- I also have to adhere to the
7 provisional regulations that have been also added to
8 this law and that has been signed by General Delic.
9 MR. OLUJIC: Does that mean that you have first of all have
10 to adhere to these rules and regulations rather than the
12 JUDGE JAN: This is a somewhat confusing question. Rules
13 and regulations are framed under the law. I did not
14 understand the question, that you have to adhere to
15 rules and regulations rather than the law. Rules and
16 regulations are framed under the law.
17 JUDGE KARIBI-WHYTE: If counsel will be fair to the witness,
18 you might put to him what that law is. It makes life
19 easier for everyone, so that he will know what answers
20 to give to your questions.
21 MR. OLUJIC: Your Honours, the witness said that he knew of
22 this law of the archival work and that one should follow
23 it, one should adhere to it.
24 JUDGE KARIBI-WHYTE: The provisions you are relying upon
25 which you want him to follow. He has told you he
1 follows the regulations issued by General Delic. If you
2 have other laws governing the regulations then tell him.
3 MR. OLUJIC: The question was to follow. What I am
4 interested in is whether you would adhere to the rules
5 or to the law. Obviously the rules have to comply with
6 the law. However, what I am interested in, sir, is in
7 what period of time do you need to receive the documents
8 that you request? In other words, is there a deadline?
9 A. If you will recall, I said that there was an order which
10 regulated, and I do not know the date of it, the
11 deadline for the production of all the archival material
12 and this deadline has passed. However, there were some
13 unexpected circumstances. There was a fire, there was
14 the transformation of the army, certain signatures were
15 no longer valid and there were new persons who arrived
16 in new units to work on this archive, so there were --
17 we -- so we sent another document to all the units and
18 requested that no further documents be delivered to us
19 but that the work on its processing should continue, so
20 that they would be prepared to send it to us. Also any
21 request by anyone for any documents was also postponed
22 because of the difficult circumstances. So this was
23 force majeure, so we have to do it that way. I do not
24 know if that is a satisfactory answer to you.
25 Q. Yes, it is satisfactory. Thank you, Professor, I have
1 no further questions.
2 A. Your Honours, may I address the court and may I add some
3 further explanations in connection with this question?
4 JUDGE KARIBI-WHYTE: Yes, you may. You may.
5 A. I wanted to say that when talking about the education
6 and training of archive keepers for the moment we have
7 no such institution which would provide advanced
8 training for custodians. As far as I remember, before
9 the war in secondary school there would be a generation
10 of people who would --
11 JUDGE JAN: Nobody is doubting your competency.
12 A. -- specialising in the --
13 JUDGE KARIBI-WHYTE: I want to find out one thing. Can
14 there ever be a deadline for the department of
16 JUDGE KARIBI-WHYTE: No deadline for receiving documents,
17 whether any of your legislation has suggested a deadline
18 for the receipt of documents into the archives.
19 JUDGE JAN: You receive documents of importance any time,
20 even if it is 10 years later?
21 A. The law, as far as I recall, does not set a definitive
22 deadline by when the documents during the aggression
23 need to be submitted. We are in a very difficult
24 situation. It is very similar to the situation we had
25 during the war.
1 JUDGE KARIBI-WHYTE: The deadline for the authorities to
2 send the documents to you, not a deadline for you when
3 you should receive them. The deadline would be for the
4 department to send the document, it must be the
5 departments or the general or the corps headquarters that
6 they should send these papers to you within such and
7 such a period. Anyway, it is not important.
8 A. If I may, your Honours, I should like to emphasise once
9 again the date fixed by the order by which all the
10 documents should have been submitted; but in the
11 meantime these various things happened, like the fire in
12 the building. So we cannot receive it in the room that
13 we are sharing with the library, so we are living in a
15 JUDGE JAN: Thank you very much. I understood you fully.
16 JUDGE KARIBI-WHYTE: In the absence of further questions
17 I think this witness is discharged. Thank you very much
18 for your efforts in this matter and the zeal with which
19 you explain your position.
20 JUDGE JAN: Mr. Ackerman.
21 JUDGE KARIBI-WHYTE: Thank you very much for your
23 MR. ACKERMAN: Your Honour, I was thinking of asking him some
24 further questions about the process by which documents
25 are acquired, but I think I will not. Instead I will
1 talk about the frogs that have apparently rotten into
2 the ceiling this morning. I hope it is not some
3 Biblical plague that is being visited upon us.
4 JUDGE JAN: The frogs?
5 JUDGE KARIBI-WHYTE: It does not matter, as long as it finds
6 its way into their collection.
7 What else do you have, Mr. Niemann?
8 MR. NIEMANN: That is all the evidence we have available.
9 JUDGE KARIBI-WHYTE: Yes, the witness is discharged. You
10 are discharged and I thank you.
11 A. Thank you too.
12 MR. NIEMANN: Your Honours, that is all the evidence that --
13 excuse me -- that is all the evidence that we have
14 available this week. We had estimated that with
15 Professor Economides that we may have taken the full
16 time. We have not done that. We can proceed to deal
17 one by one with the documents that were obtained by the
18 Austrian police which still have not been, as
19 I understand it, admitted into evidence.
20 JUDGE JAN: The contents.
21 MR. NIEMANN: It is -- as I understand it, there have been --
22 I was not quite sure of the nature of your Honours'
23 orders, but if they have been accepted into evidence it
24 is just a question of their establishing the relevance
25 of them. It requires individual examination of them.
1 We could do that. Later on this afternoon, if your
2 Honours please, we could deal with the motion in
3 relation to the UN officer and the Witness J for next
4 week, or indeed that could be done next week, if your
5 Honours please. It is entirely a matter for your
6 Honours as to how you wish to proceed from now. We are
7 in a position to look at the documents individually, if
8 that is what your Honours would prefer. We have no
9 further evidence at the moment.
10 JUDGE JAN: Why do you want to examine the UN security
12 JUDGE KARIBI-WHYTE: Please let me take the questions. I
13 have think you have indicated two things we have to do.
14 The admission of the documents in the substantive case;
15 now, what our ruling was, and very clearly, I thought
16 you realised too, that what was tendered to us at that
17 time were certain folders containing documents. What
18 was received on the basis of their reliability and
19 relevance are the folders not the contents of those
20 folders. Now what you want to introduce now are the
21 documents in the folders. We had no opportunity of
22 knowing what those documents were to be able to consider
23 whether in fact they could have been received at the
24 time, the folders were tendered. Now, if you want to
25 introduce the documents in the folders they have to be
1 established on their own strength. They do not go with
2 these folders themselves.
3 MR. NIEMANN: Your Honours, I do believe there is a confusion
4 about this. Perhaps I will try to clarify it, if
5 I may. There were some folders introduced, twelve
7 JUDGE KARIBI-WHYTE: Yes.
8 MR. NIEMANN: At no stage do we want to introduce into
9 evidence the contents of those folders. We do not want
10 to do it now, we did not want to do it then. The
11 folders were merely introduced because they contained
12 documents which before the folders ever got to this
13 courtroom had documents in them which had been removed.
14 Those documents that had been removed were addressed and
15 examined individually by the witness Moerbauer and the
16 witness Moerbauer said yes, this was a document we took
17 out and he marked them and he gives certain evidence in
18 relation to it.
19 The documents that are contained now in those
20 folders which are with the Registrar, we do not wish to
21 tender them. There was only one purpose in introducing
22 those folders and that was to show that these were the
23 folders which contained the documents which had been
24 removed prior to coming to court and were dealt with
25 individually by the witness Moerbauer. The documents
1 that I am now talking about are the documents that were
2 examined individually by the witness Moerbauer, not the
3 contents of the documents of the folders that
4 I presented to your Honours at some subsequent stage.
5 Now, it is possible that your Honours say that the
6 documents that were individually dealt with by the
7 witness Moerbauer have now been admitted into evidence,
8 and the only outstanding issue is relevance. There are
9 two ways we can deal with that. We can deal with it by
10 making submissions individually on the documents now, or
11 we can do it in closing address. I mean it does not
12 have to happen at this point in time.
13 JUDGE KARIBI-WHYTE: Are there any outstanding documents
14 which have not been admitted into evidence for any
15 purpose whatsoever? They might still be dealt with.
16 But what our ruling was, that no documents because or by
17 virtue of those folders were admitted at the time the
18 folders were admitted.
19 MR. NIEMANN: The contents of those folders, that is the
20 documents contained in those folders were certainly --
21 JUDGE KARIBI-WHYTE: Would not have been admitted.
22 MR. NIEMANN: At that time. We do not seek to tender them
24 JUDGE KARIBI-WHYTE: Nobody is arguing that. This is not an
25 argument before us, that the contents of the folders
1 were not admitted. I think that is accepted.
2 MR. NIEMANN: We are not seeking to do that. But what we are
3 seeking to do is to make sure that the documents that
4 were not in the folders but were individually dealt with
5 by Moerbauer have been accepted into evidence.
6 JUDGE KARIBI-WHYTE: That is a different matter.
7 MR. NIEMANN: If your Honours say that they have been
8 admitted into evidence, then it is only an issue of
10 JUDGE KARIBI-WHYTE: The contents, before they are admitted,
11 have to be authenticated.
12 JUDGE JAN: I just give you an example. In your office you
13 keep so many files, maybe letters, maybe press cuttings.
14 Some of them you do not believe to be true, some of them
15 probably are false. If you take those documents without
16 the contents being proved of those documents, as
17 evidence, it will be unfair.
18 MR. NIEMANN: That is the exercise that I am now in a
19 position to go through and do, and individually indicate
20 why we say: (a) the documents can be relied upon, (b)
21 why they are relevant and why they should be admitted
22 into evidence. The basis upon which I would seek to do
23 that is by relating to the contents of the documents,
24 where they were found, the circumstances of where they
25 were found, and what they relate to. I can do that.
1 That is done not only by the individual document as it
2 stands alone but also in relation to the other documents
3 with which it was contained because there is an
4 inter-relationship between the documents. It is a
5 process of showing that inter-relationship which then
6 proceeds to demonstrate its authenticity and
8 JUDGE JAN: Supposing that letter, which is a forged one, is
9 found on folders, the mere fact it was found in the
10 folder, the folder has been recovered, the letter has
11 been recovered, does not mean this letter is true. The
12 contents of these documents have to be proved. Yes this
13 document relates to a certain person. What you have
14 done is proper custody, that this document has come from
15 that custody.
16 JUDGE KARIBI-WHYTE: I am not sure we are arguing the motion
17 now. We are not arguing the issue. When you come
18 properly we will argue the issue. I gave you the
19 position of the Trial Chamber that --
20 MR. NIEMANN: Does your Honour wish me to address this by way
21 of a motion?
22 JUDGE KARIBI-WHYTE: Well definitely, if it has not been
23 admitted. You can raise it at any stage -- it need not
24 be by motion -- but this is not the time to raise it.
25 JUDGE JAN: The authenticity is very different from custody.
1 MR. NIEMANN: I know your Honour keeps saying that; and
2 I never seem to be able to address your Honour on that
3 point. Your Honours, a document -- you do not have to
4 produce the author of the document for a document to be
5 admitted into evidence, not so far as I know.
6 JUDGE KARIBI-WHYTE: There are other considerations which
7 might assist.
8 MR. NIEMANN: A document can be a printed document and still
9 be relevant and admissible; but I do not need to produce
10 the person who published the document or wrote it. A
11 secretary could write a document about somebody. It is
12 the contents of the document which is a factor. There
13 are a number of ways to do it. You can do it by way of
14 producing the person who wrote it, or you can look at
15 the document itself.
16 JUDGE KARIBI-WHYTE: Actually, this is why there are two
17 stages in the question of admissibility of evidence.
18 MR. NIEMANN: The first stage is the discovery of it, which
19 we have done; and your Honours have accepted that, and
20 custody; getting it here to the court, which is a
21 relevant issue. The next stage, your Honours, is to
22 look individually at the document and make a
23 determination of the relevance and reliability based on
24 the contents, and comparison with other documents. A
25 document can speak about an event which if we know from
1 other circumstances or other evidence did occur, tends
2 to suggest that the document may be valid, because it
3 says, "on X day I left Konjic and went somewhere else".
4 If that is contained in the document and we have heard
5 other evidence that says that, one says that probably is
6 true. That is the process by which we need to go
7 through each document to examine it.
8 JUDGE JAN: Supposing a document is found that I travelled
9 to such and such place, maybe and I have never been to
10 that place. What are you going to say to that? Unless
11 there is some confirmatory evidence outside that
12 document which shows it is genuine. An interview --
13 I have been the victim. So many interviews have been
14 published about me, in Pakistan not here of course,
15 which I never gave. If those documents are found; I
16 kept a record, if they are found in my folder, would it
17 mean that I have given that interview?
18 MR. NIEMANN: No, and the reliability of the document, or the
19 weight that is attached to it, is substantially reduced
20 by evidence which suggests to the contrary.
21 JUDGE JAN: There has to be some other evidence.
22 MR. NIEMANN: And the documents can interrelate to each
24 JUDGE JAN: There is a danger in that, that is why the
25 contents of the document have to be proved.
1 MR. NIEMANN: But they cannot be approved if the accused does
2 not appear. The person who wrote them is the accused,
3 and says "I refuse to testify" then those documents
4 would never get into evidence. In my submission, that
5 is --
6 JUDGE KARIBI-WHYTE: I think there is a lot of cognitive
7 evidence which might assist in its admissibility
8 itself. But what you do with these documents as
9 admitted would depend on the consideration the Trial
10 Chamber places on that.
11 MR. NIEMANN: At the end of the day, obviously.
12 JUDGE KARIBI-WHYTE: Yes, obviously.
13 MR. NIEMANN: I need to take your Honours to each document
14 and interrelate it to other documents to explain the
16 JUDGE KARIBI-WHYTE: Other documents which are in evidence.
17 MR. NIEMANN: Some are in evidence, but some are an
18 inter-relationship between the documents themselves.
19 JUDGE KARIBI-WHYTE: You have to show that all documents
20 which are interrelated to each other are in evidence,
21 for you to be able to establish what you are trying to
23 MR. NIEMANN: Your Honours, there is a concept of admission
24 de bene esse, where the documents are admitted and then
25 examined, after they have admitted to their relevance.
1 I mean, you may have a situation where the only way you
2 can prove one document is by relation to another
3 document. If you are not permitted to prove either
4 document, because both of them are interrelated, then
5 you never get the documents into evidence.
6 JUDGE JAN: It can be very dangerous to do that.
7 MR. NIEMANN: De bene esse.
8 JUDGE KARIBI-WHYTE: I do not want to say that here. It is
9 misconceiving the principle. Where evidence is reliable,
10 even if the custody is also established, and all you
11 need now is to determine whether in fact it should be
12 used in evidence, you leave it to the Trial Chamber or
13 the judge to determine from all the surrounding
14 circumstances whether there is sufficient weight to be
15 given to what has been tendered to them.
16 MR. NIEMANN: Yes.
17 JUDGE KARIBI-WHYTE: That is all you need.
18 MR. NIEMANN: That is the exercise I think -- if your Honours
19 do not need my assistance in that.
20 JUDGE JAN: Of course we need your assistance in every
21 matter related to this trial. How can we proceed
22 without your assistance?
23 JUDGE KARIBI-WHYTE: Without knowing what you are about.
24 MR. NIEMANN: I think it would be necessary for your Honours
25 for me to indicate to you why it is that we say that
1 these documents are reliable. The only way I can do
2 that is by looking at the documents themselves.
3 JUDGE KARIBI-WHYTE: You are not doing it alone, you are
4 doing it in conjunction with the Defence, who are
5 entitled to object to whatever procedure you are trying
6 to use.
7 MR. NIEMANN: Obviously, and at the end of the day it comes
8 to a decision of your Honours, as I understand the
10 JUDGE KARIBI-WHYTE: That is why they should know what is
11 going on.
12 MR. NIEMANN: I think they do. I think that they are very
13 familiar with the documents.
14 JUDGE KARIBI-WHYTE: We are not too sure. We are assuming
15 as if everything is clear. Until we get to the roots of
16 it, then we know what you are talking about, what
17 circumstances you are talking about and in what respect
18 you want the matter introduced into evidence.
19 MR. NIEMANN: That is why I have left the argument to this
20 point, because we are reaching the closing stages of the
21 Prosecution case. At an earlier stage, it is much
22 harder to determine whether something is relevant than
23 it is at this stage. We are at the very sunset of the
25 JUDGE KARIBI-WHYTE: You can introduce it any time you wish
1 to. We will listen to you.
2 MR. NIEMANN: Well, I am in a position to proceed now if your
3 Honours --
4 JUDGE KARIBI-WHYTE: Can you? Do you wish to do so now?
5 MR. NIEMANN: I can do it now if your Honours --
6 JUDGE KARIBI-WHYTE: We will listen to it. I am sure we can
7 continue after lunch with this process.
8 MR. NIEMANN: Your Honours, the first document that I would
9 draw your attention to is exhibit 117; and the
10 translation version of that is 117A.
11 MR. O'SULLIVAN: If I may be heard. If we are to proceed on
12 this, this has come without warning to us and we do not
13 have our necessary documents to respond in kind to what
14 the Prosecutor is going to attempt to do right now. Our
15 understanding was that we were going to deal with the
16 previous witness and that was all for the week. So we
17 are a little bit surprised and not in a position to
18 respond document by document at this time.
19 JUDGE KARIBI-WHYTE: I am sure each document will be
20 tendered to you. If you have any observations you can
21 make them. They are not documents with which you are so
22 unfamiliar that you cannot say anything about them. You
23 are quite familiar with them.
24 JUDGE JAN: Before you proceed further, I asked you a
25 question but then another matter took up. Why do you
1 produce a UN security officer? Why do you want to
2 examine a UN security officer, because we had some probe
3 people claiming privilege, UN employees.
4 JUDGE KARIBI-WHYTE: And staff.
5 MR. NIEMANN: Your Honours, this question is being addressed
6 by my colleague Ms. McHenry, and I might ask her in
7 fact to --
8 JUDGE JAN: You can do that later.
9 MR. NIEMANN: I can indicate, your Honours, very quickly,
10 that the evidence that this witness would give is
11 something that the Defence have raised themselves in a
12 motion by Ms. McMurrey relating to evidence coming
13 before the Chamber pursuant to a process other than --
14 JUDGE JAN: This relates to that motion by Landzo, I see.
15 We can discuss it when that motion comes up.
16 MR. NIEMANN: That is why I am calling the evidence, your
18 JUDGE JAN: I am sorry for this interruption, because
19 I thought the thing will remain in my mind because I had
20 that privilege question. At some stage in these
21 proceedings, in some other matter it was said that UN
22 employees cannot come without the claim -- they had some
23 sort of privilege. I had that in my mind. I am sorry
24 for the interruption.
25 MR. NIEMANN: Your Honour, with respect to the matter raised
1 by Mr. O'Sullivan, if they would be assisted by us
2 adjourning now and them getting their documents ready so
3 we can proceed this afternoon I think I have no
4 objection to that. I think it is fair so that they can
5 gather their materials together. I can understand why
6 they may have been taken a little by surprise. If they
7 can come back this afternoon at 2.30 and we can proceed
8 then. Certainly I have no objection to that.
9 JUDGE KARIBI-WHYTE: It is not you now, it is their
10 privilege. It is not you objecting.
11 MR. NIEMANN: I know that, your Honour.
12 JUDGE KARIBI-WHYTE: Is that suitable to you?
13 MR. O'SULLIVAN: Yes, that will be fine, your Honour.
14 JUDGE KARIBI-WHYTE: Okay. So we will have a break and then
15 come back at 2.30.
16 (12.55 pm)
17 (Luncheon adjournment)
1 (2.30 pm)
2 JUDGE KARIBI-WHYTE: Mr. Niemann, you are continuing with
3 your submissions, yes?
4 MR. NIEMANN: If your Honour pleases.
5 JUDGE KARIBI-WHYTE: Let us hear you.
6 MR. NIEMANN: Thank you. Your Honours, as I had indicated
7 earlier, the only effective way I think that I can
8 demonstrate the relevance, the significance of each of
9 these documents is by going to the documents themselves
10 and pointing out the various facets of the document and
11 stating why it is that I submit that they are relevant.
12 The first document that I would ask your Honours to --
13 MR. O'SULLIVAN: Your Honour, I have to object at this
14 point. I ask to be heard on this. My starting point is
15 this: that as your Honours pointed out before the break
16 that in your ruling of September 12th you held that the
17 folders were admissible but not the contents of those
18 folders. My learned friend now is seeking to lead into
19 evidence items coming allegedly from INDA-BAU, all of
20 which were contained in the folders I1 through I12. He
21 seems to be under the misconception that there are
22 documents which were not contained in folders.
23 When Officer Moerbauer came here his testimony was
24 he received the twelve folders from his colleagues. No
25 one at that point to handing the folders over to the
1 police station had anyone marked those documents
2 contained in those twelve folders. Officer Moerbauer's
3 testimony further stated between 22nd March to
4 approximately April 2nd he opened the folders and marked
5 the documents. Third, when Officer Moerbauer testified
6 before this Tribunal he was shown the documents my
7 friend is now attempting to admit into evidence; and
8 Officer Moerbauer could not identify his mark on any
9 documents. There was no connection between what Officer
10 Moerbauer said he did in Vienna and the documents that
11 were shown here.
12 The Prosecution has not proven the authenticity of
13 these documents; they are therefore unreliable. We
14 cannot move on to the next step. We do not know the
15 provenance of these documents. The Prosecution has
16 failed to prove that. I repeat, I heard my friend this
17 morning say that he is talking about documents which
18 were not in folders. That is not correct. The record
19 is clear. All of these documents, allegedly from
20 INDA-BAU, were contained in these twelve folders. That
21 is the testimony of Moerbauer himself. He received them
22 unmarked; he marked them. When he came here there were
23 no markings put on those documents by Moerbauer. That
24 is the threshold question, in my submission, which has
25 not been proven.
1 MR. GREAVES: For the record, we support that contention.
2 MR. NIEMANN: Your Honours, there are documents now contained
3 in the twelve folders. Those documents are in the
4 twelve folders that are now in the twelve folders we do
5 not seek to tender. Documents were taken out of the
6 folders and dealt with separately before the twelve
7 folders were tendered. They were individually
8 considered by Mr. Moerbauer. Mr. Moerbauer considered
9 each one and commented on each one individually. In
10 relation to the first document that I am seeking to deal
11 with, Exhibit 117, Mr. Moerbauer said, at page 3652,
12 lines 1 to 8:
13 "I made an index myself of the seized items and
14 here I can locate the exact binder. This document was
15 in binder 12. The document was handed to me by my
16 colleague Mr. Navrat in the binder at the police
17 headquarters in Vienna."
18 In relation to each one of these documents I deal
19 with, Mr. Moerbauer specifically dealt with them in this
20 way. There seems to be either a complete confusion in
21 the minds of the Defence about this or that they just
22 refuse to accept what I am saying. I think I have made
23 myself very clear as to what the position is. These
24 documents are documents that came out of the binder and
25 were dealt with by Moerbauer before the binders were
1 tendered. There is no --
2 JUDGE JAN: What is this document 117?
3 MR. NIEMANN: It is a draft of a letter found at the premises
4 of INDA-BAU in handwriting. It is in draft form and it
5 contains references to such matters as the fact that up
6 until the 25th November, 1992, the document said, "I was
7 in the war 24 hours a day without a day's rest or break
8 or change", and goes on and talks about, "in July I was
9 appointed the commander of Tactical Group 1." It goes on
10 with the establishment of the 4th Corps in Mostar.
11 JUDGE KARIBI-WHYTE: The contention seems to be that not all
12 the documents seized were in the folders as were
13 tendered, is that your contention?
14 MR. NIEMANN: The contention, your Honour, is it is not a
15 contention, your Honour, what happened is that we took
16 certain of the documents which we considered to be
17 relevant out of the folders and introduced them into
18 evidence individually, one by one. Those documents were
19 dealt with by Mr. Moerbauer one by one. He then gave
20 evidence in relation to them and said that this
21 particular document comes from folder number so and so,
22 and I receive the folder from Mr. Navrat. All of this
23 evidence of chain has been given. Your Honours have
24 ruled on it. Your Honours have decided that the
25 evidence is admissible insofar as the seizure of the
1 documents, the chain of evidence of how it got to it.
2 The only issue remaining is the question of
3 whether it is relevant and probative and whether it
4 should be admitted into evidence on that basis. Any
5 arguments about any other matter, your Honour, in my
6 submission, have been dealt with, and it is improper to
7 raise those issues again which have already been
8 litigated. This will go on forever if this happens,
9 which is what the Defence seem to wish to do. They
10 refuse to accept that your Honours have made a ruling on
11 this question. Your Honours have ruled on it. The only
12 issue now outstanding is the question of relevance.
13 Quite rightly, your Honours have said whether or not
14 they will be admitted into evidence depends upon whether
15 they can shown to be relevant, which is what I am
16 seeking to do.
17 MR. O'SULLIVAN: If I might be heard on this point. My
18 intention, quite to the contrary to what my learned
19 friend says, is not to waste time. I respectfully
20 submit there is another portion of evidence that must be
21 considered which is fatal to the admissibility of these
22 evidence. Officer Moerbauer says he analysed and put
23 his mark on every document that was in folders I1 to
24 I12. When he came before this Tribunal to give evidence
25 he did not see his mark on any document coming from
1 those folders. There is no connection between what he
2 said he did in Vienna and what he testified to in this
3 courtroom in regards to these documents. That is the
4 threshold question of authenticity and reliability. So
5 I am not trying to waste time. My submission is that
6 that evidence is fatal to proving the first point, which
7 is the authenticity and reliability of these questions.
8 That should close the matter once and for all.
9 MR. NIEMANN: Again, your Honours, this is a refusal to
10 accept your Honours' orders, which it would seem my
11 friend refuses to accept. I mean, your Honours have
12 already ruled on this question. Mr. Moerbauer has looked
13 at these documents and identified them as documents that
14 he received. Your Honours have accepted that. There is
15 no question about that. I cannot understand why, this
16 issue that they are attempting to relitigate this
17 question again. It is a question now of the relevance.
18 They keep on wanting to raise the issues of what
19 Moerbauer did, how the documents were handled, the chain
20 and the whole issue of their seizure. Your Honours have
21 ruled on that. The only question is the question of
22 their relevance.
23 MR. O'SULLIVAN: Again, if I am not making myself understood,
24 I am not asking to relitigate anything, I am asking the
25 Tribunal to look at the record and to apply your ruling
1 of September 12th, where you said the contents of the
2 folders is not admitted. Then we can raise objections
3 to the individual documents as the Prosecution attempted
4 to have them brought into evidence. The evidence is
5 clear. The officer who seized the documents from
6 INDA-BAU, Navrat, did not mark them. They were marked
7 for the first time, according to Moerbauer, between 22nd
8 March and 2nd April. Those documents arrived in this
9 courtroom with no marks. In my respectful submission,
10 there is no proof those are the same documents.
11 JUDGE KARIBI-WHYTE: Now, Professor, let us get this clear.
12 If your contention is that anything which was not
13 admitted in the contents of the folders, this was what
14 was said, the contents were not admitted, what do you
15 have against it being subsequently admitted?
16 MR. O'SULLIVAN: If the Prosecution could prove it, it can be
18 JUDGE KARIBI-WHYTE: You will hear the Prosecution first,
19 because I do not see the objection if what is being
20 argued is that although it might have been indicated as
21 not being admitted, it is now being submitted for
22 admission. You also put up your argument against why it
23 should not be admitted.
24 MR. O'SULLIVAN: There is no proof that exhibit number 117
25 was in folder number I2.
1 JUDGE KARIBI-WHYTE: That is the more reason why it should
2 now be brought for admission if it was not there, if all
3 that was admitted were matters which were not in the
5 MR. O'SULLIVAN: Moerbauer says it was in the folder and when
6 pressed if he could recognise the mark he said he put on
8 JUDGE KARIBI-WHYTE: The context. We do not even know what
9 are the contents of the folder.
10 MR. O'SULLIVAN: Officer Moerbauer says he marked the
11 contents with his mark.
12 JUDGE KARIBI-WHYTE: The contents have not been tendered to
13 us. There is no list of what are the contents.
14 MR. O'SULLIVAN: The evidence is that Moerbauer says he
15 marked the contents of I2.
16 JUDGE KARIBI-WHYTE: I would prefer you listening to the
17 argument first and put up your argument. It appears you
18 are starting on the very wrong premise. The argument is
19 what you are saying is that the contents of the folder
20 were not admitted. This was what you said. We do not
21 even know what the contents of the folder is. How do
22 you now posit any argument about it being admitted
23 unless you can show that what is now being suggested has
24 been rejected?
25 MR. O'SULLIVAN: The threshold question, in my submission, is
1 proving that the document was in I2, that was the same
2 document that Moerbauer saw in Vienna and could not
3 identify in this court.
4 JUDGE KARIBI-WHYTE: I do not see any substance in the
5 argument. Let me hear Mr. Niemann.
6 MR. NIEMANN: What I rely on, your Honour, is that extract of
7 the evidence that I read out, where Moerbauer said in
8 evidence at 3652, lines 1 to 8:
9 "This document was in binder 12. This document
10 was handed to me by my colleague, Mr. Navrat, in the
11 binder at the police headquarters in Vienna."
12 So in each case it was dealt with. So, your
13 Honours, in my submission it is incorrect for the
14 Defence to be saying that there is no evidence of where
15 the document came from or that there is no evidence that
16 Moerbauer knew where the document came from and was able
17 to identify that. He did. The evidence is here. It is
18 clear, and he says so.
19 JUDGE JAN: Does it show it was in the -- the mere fact it
20 was found at INDA-BAU is sufficient to show it is in the
21 handwriting of Zejnil Delalic.
22 MR. NIEMANN: He does not say that he does not know what the
23 handwriting is like.
24 JUDGE KARIBI-WHYTE: Actually that is the second stage for
25 the admissibility.
1 MR. NIEMANN: It is. It is the second stage with respect to
2 the extent to which the Prosecution says the document
3 should be used. If it is to go to prove an element of
4 the offence it would be incumbent to prove that it was
5 in his handwriting and something he himself says is to
6 be used against him. A document can be about somebody,
7 it does not have to be written about him, it still
8 becomes relevant. It can be written by anybody else and
9 it is still relevant. The indicia of reliability, where
10 did it come from, is it in a place where somebody would
11 expect it to be. If you find it in a garbage tin in the
12 middle of Berlin you could say, how could it be relied
13 upon in any way. If you find it in premises which are
14 occupied and where the business of the accused is then
15 the indicia of reliability increases. All these factors
16 go together to establish this indicia of reliability.
17 At the end of the day, your Honours may not say
18 that this one particular document will prove the matter
19 beyond a reasonable doubt. It may go to the proof of
20 the matter along with a lot of other pieces of
21 evidence. The fact that a wallet is found on a premises
22 may not prove that it is the wallet of the person, but
23 if it has in its contents a licence which says the
24 licence of this person and a credit card and so forth
25 the combination of all these factors tend to show that
1 this may have belonged to Mr. X. The fact that it is
2 found on these premises may suggest that Mr. X may have
3 been on these premises at a particular time. It is a
4 combination of factors. It is called circumstantial
5 evidence. All I am submitting, your Honours, is that we
6 are putting these documents in for these purposes. They
7 are going to have varying degrees of weight. Some will
8 have greater weight than others.
9 Unless your Honours seek to rely on them, at the
10 end of the day, to prove, the one document to prove
11 conclusively an element, you might require it to be of a
12 very high standard of proof. The fact that it is not of
13 the highest standard of proof, such that it is proved to
14 be in the handwriting of the individual, does not make
15 it inadmissible. It means that the weight that you
16 attach to it is reduced, because of the fact that it is
17 not shown to be in that handwriting, not proved to be in
18 that handwriting.
19 JUDGE JAN: All you can say is that this document indicates
20 that the accused was holding these positions at the
21 relevant time, that is all. It has been found in his
22 possession, this document.
23 MR. NIEMANN: It may say something relevant about the
24 accused, such as, if -- we have been speaking of CVs in
25 the last few days. Very few of us actually, in
1 handwriting which we would prove in court, write out our
2 CVs. Most of the time it is done by our secretaries.
3 It is not suggested that because it is done by the
4 secretary that it is not relevant to us. One looks at
5 the contents. It says you are born on a certain date
6 and that can be proved otherwise that it is consistent
7 with it, that it relates to a particular academic
8 qualification and so forth all the way through, you may
9 say this document looks like it may be the CV of X. It
10 does not have to be proved I wrote it or it was written
11 by anyone in particular to establish that.
12 MS. RESIDOVIC: Your Honours, please can I make a comment?
13 JUDGE KARIBI-WHYTE: In opposition, yes.
14 MS. RESIDOVIC: Yes, I would like to offer the opposite
15 argument. I think that the Prosecutor is trying to take
16 us further away from the decision of the Trial Chamber,
17 since the Officer Moerbauer recognised some of the
18 documents from the folders, from the transcript I think
19 that is not true. I think that in his analysis compiled
20 a month and a half after the seizure of certain items he
21 analysed certain documents and he could only speak to
22 those. In the folders he only recognised to a single
23 document which allegedly was found in the --
24 Mr. Delalic's apartment. And the Prosecutor just said
25 they were not going to use any documents from the
1 folders found on the premises of Mr. Delalic.
2 Witness Moerbauer has testified here that no
3 document in these folders is -- he cannot recognise
4 because he does not speak good Bosnian language, because
5 he never submitted the documents for the graphological
6 analysis and in no other way can ascertain where the
7 documents came from. The only thing that happened was
8 that the witness Navrat gave him these documents. That
9 witness who was on the premises in INDA-BAU could not
10 recognise a single document, who was in those folders,
11 because he put no markings on any of these documents.
12 He could not read any of these documents, and no
13 documents there was ever written to him. So the fact
14 that the Prosecution is claiming that the documents from
15 INDA-BAU are from the premises of Mr. Delalic go counter
16 to all evidence that we have -- testimony that we have
17 heard here.
18 Mr. Moerbauer, this firm INDA-BAU was always the
19 ownership -- was never the ownership of Mr. Delalic. He
20 never worked there. There are 300 employees there, but
21 Mr. Delalic was never there. So the witness who appeared
22 before the Tribunal did not recognise anything, and now
23 the arguments that are being put forward and the
24 documents are being offered here that nobody has ever
25 recognised I think are trying to mislead this court, and
1 in the letter I think that I have showed that there were
2 two letters and my defendant --
3 JUDGE KARIBI-WHYTE: Now, was any of the contents of the
4 folders tendered during argument?
5 MS. RESIDOVIC: No.
6 JUDGE KARIBI-WHYTE: They are being tendered now.
7 MS. RESIDOVIC: We are not denying the right, however, for
8 the Prosecution first has to prove that they were in the
9 INDA-BAU folders, and the Prosecution has offered no
10 evidence in that regard.
11 MR. NIEMANN: Your Honours, I find it amazing that they keep
12 saying we have not offered the evidence. I just quoted
13 twice, and I will quote again. Moerbauer, at page 3652
14 of the transcript, in dealing with the first document
15 that I wish to deal with, says:
16 "I made an index myself of the seized items and
17 here I can locate the exact binder. This document was
18 in binder 12."
19 That is Exhibit 117. It was in binder 12:
20 "This document was handed to me by my colleague,
21 Navrat, in the binder at the police headquarters in
23 Why do the Defence refuse to accept this? It is
24 the evidence. It has been proved. The evidence is
25 before the court and yet I find it extraordinary that no
1 matter the fact I have mentioned it three times they
2 refuse to accept it.
3 MR. MORAN: Your Honour, I think I may be able to be of a
4 little bit of assistance here. I think we have two
5 people talking past each other, that there is
6 conflicting evidence. I think each side is saying our
7 evidence shows, because we presented evidence, shows the
8 court made a fact-finding on this piece of evidence
9 where the Prosecution would say that there was testimony
10 that it came from here, and then the Defence would say
11 he testified that he put marks on all of the documents,
12 and he could not find a mark on this document so it
13 could not be the same document. I think at some point
14 the Trial Chamber is going to have to make a
15 fact-finding here.
16 JUDGE KARIBI-WHYTE: They are not talking about the same
17 matter. It appears they are not saying the same things.
18 JUDGE JAN: I think it would require a detailed examination
19 of all the evidence, whether this particular document
20 was found at the premises or not.
21 MR. MORAN: Your Honour, I think you are right.
22 JUDGE JAN: The Defence case is there is no evidence that
23 this document was one of the documents recovered from
24 INDA-BAU. The Prosecution thinks there is enough
25 evidence. It requires a detailed examination of the
1 entire evidence and maybe at this stage it is not
2 possible to do that.
3 JUDGE KARIBI-WHYTE: All through there was no detailed
4 examination of the documents in the folders.
5 MR. MORAN: Clearly, your Honour.
6 JUDGE KARIBI-WHYTE: Nobody, so if today somebody at that
7 time one would have insisted we should have the
8 documents in these folders, then you could have excluded
9 any subsequent tendering of evidence as being claimed to
10 be belong to any of these folders.
11 MR. MORAN: I think that Rule 89E may be the solution to this
12 problem, which -- I believe it is Rule 89E, which
13 suggests that if there is a -- yes, 89E, when it comes
14 to authenticity of evidence the Trial Chamber can ask
15 for more. I think what you have here is conflicting
16 evidence, and --
17 JUDGE KARIBI-WHYTE: We are clearly not in conflict because
18 they are all speaking at cross-purposes. One says,
19 "I removed this from the folders". The other says no
20 such thing ever happened. That is speaking at
21 cross-purposes. If all the folders were admitted minus
22 their contents, obviously the contents were not in
24 MR. MORAN: That is correct.
25 JUDGE KARIBI-WHYTE: Yes. And now you can go forward to
1 show what the contents are.
2 MR. MORAN: I think the conflicting evidence is
3 this: Moerbauer says this is my -- I took what was it
4 114, 117, this is one I took out of this folder.
5 JUDGE KARIBI-WHYTE: 12.
6 MR. MORAN: "And I put a mark on it. I put a mark on
7 everything I took out of there", and later he says, "no,
8 I cannot find the mark".
9 JUDGE KARIBI-WHYTE: Cannot identify the mark.
10 MR. MORAN: It should have my mark on it and I cannot find
11 it. I think perhaps the Trial Chamber -- at some point
12 is going to have to make a fact-finding. Rule 89E may
13 be what the Trial Chamber might want to use to get some
14 more information.
15 JUDGE KARIBI-WHYTE: Yes, are you still ...
16 MS. RESIDOVIC: My learned colleague Mr. Niemann says that
17 he is surprised that we are not hearing the arguments.
18 I think that the testimony of a witness provides the
19 answers, during his examination-in-chief and the
20 cross-examination. During the cross-examination the
21 same witness denied everything that Mr. Niemann is
22 referring to. He did not recognise a single document
23 except for the letter, "Dear Edine", which allegedly
24 comes from the department of Mr. Zejnil Delalic. As for
25 all the other objects, he could not identify them.
1 Therefore, your Honours, we do not know what was in
2 those folders. If the Prosecution wishes to tender them
3 then they first have to prove that they were there in
4 the first place and then I am sure additional evidence
5 would have to be sought.
6 MR. GREAVES: I wonder if I can just raise two matters your
7 Honour, with your Honour's kind leave. Your Honour, the
8 reason why this problem has arisen may come from your
9 Honours' words on 12th September. I am going to read
10 them back to you, if you will forgive me:
11 "We have observed that the Defence is entitled to
12 address the Trial Chamber on those issues and will be
13 entitled to challenge the admissibility of any documents
14 sought to be tendered as arising from the search or
15 discrepancies from evidence of witnesses. This is
16 because the Prosecution is seeking to tender 12 folders
17 containing documents but not the documents".
18 Your Honour, that may be where the intention that
19 we are entitled to raise this matter comes from. That
20 is the first matter.
21 The second matter is this: my learned friend
22 Mr. Niemann, in discussing the question of admissibility
23 of documents, said this: a document can be about
24 somebody, it does not have to be about him. I think he
25 may have said by him. It can be written by anybody else
1 and it is still relevant. Your Honour, if there is a
2 document which is written by who knows, who is not a
3 witness in the case, perhaps even by a fellow defendant
4 who cannot be forced to give evidence, there would, in
5 my submission, admitting such documents on that basis be
6 a fundamental breach of Article 21 and the provisions
7 entitling someone to a fair trial.
8 In particular, 21(4)E, the right to examine and
9 have examined witnesses against him, because this person
10 giving this account about a defendant is not before the
11 court and it is a backdoor way of getting in evidence
12 which is not going to be subject to cross-examination.
13 In my respectful submission, my learned friend's premise
14 that he makes there is incorrect.
15 JUDGE KARIBI-WHYTE: Actually my surprise here is that all
16 that has been happening from the bench of the Defence is
17 completely against the rules of debate. I expect if the
18 Prosecution is making a submission about tendering
19 evidence you listen to him and oppose it. You refused
20 to listen to him irrespective of the fact that he is
21 referring to aspects of the proceedings which he
22 participated in. As has been read out even by
23 Mr. Greaves, what we said that the contents of the -- of
24 the folders which have been tendered were not also
25 admitted and you are entitled to oppose that.
1 But now you have not even heard his contents yet
2 you are opposing them. In fact you are refusing
3 argument on them. That is most irregular. I have never
4 had such a thing. You listen to an argument and then
5 put up your own arguments against it. You do not say
6 that the opponent is stopped from even putting up an
7 argument. There is nothing which stops him, because
8 these matters have not been admitted, has not been
9 rejected. So why would he not make his own argument in
10 support of what he wants to and then you oppose it in
11 the normal rules of argument?
12 MS. RESIDOVIC: Your Honours, two more sentences, if
13 I may. I fully support what you have just said and
14 I understand that the Prosecutor is entitled to present
15 the arguments. But the first argument was to offer a
16 document saying that it was in one of the folders.
17 I draw attention to page 3754 and 3755.
18 JUDGE KARIBI-WHYTE: Will you please listen to him? When he
19 finishes you tell him that it is not in one of the
20 folders and you put up your own argument. I think that
21 is the pattern that I am familiar with. Many of the
22 things that the opposition say might be irritating, but
23 you listen and then put up your own arguments. Let us
24 hear Mr. Niemann.
25 MR. NIEMANN: If your Honour pleases. Your Honour, the first
1 document that I wish to refer to is Exhibit 117, and so
2 that we may all know which document we are talking
3 about, I ask that the English version of that document
4 be displayed on the computer.
5 JUDGE JAN: It is very small print. I do not know if you
6 can decipher it.
7 MR. NIEMANN: Can it be made larger, perhaps just the top
8 part of it? That is it, thank you.
9 If your Honours please, the original version of
10 this document, which the Prosecution contend was
11 recovered from the premises at INDA-BAU and was
12 contained in the folder, and I should say I2, I have
13 been saying 12 previously, I apologise for that, I2, is
14 a hand-written document. In our submission, your Honour,
15 the document contains a number of factors which we
16 submit go to the question of its authenticity and
17 reliability. There are indicia of -- there are indicia
18 of reliability contained in the document itself.
19 Your Honours, firstly, in the first paragraph of
20 the document, it makes reference to, "an unspeakably
21 widespread and unrelenting campaign waged against me".
22 Your Honours have heard evidence from General Pasalic in
23 relation to the question of the fact that he instigated
24 proceedings against Mr. Delalic concerning his
25 involvement and departure from the Konjic area. There
1 are other documents that I have contained in this list,
2 which go to that particular issue and which in
3 particular were considered by General Pasalic during the
4 course of the giving of his evidence.
5 In particular, your Honours, Exhibit 137, and
6 might the original version of 137 in -- sorry, might the
7 English translation of 137 be displayed on the screen?
8 This, your Honours is an exhibit. It is not -- it is a
9 document that was recovered at the premises. It was
10 recovered at the premises of INDA-BAU. It was referred
11 to by the witness Moerbauer in his evidence, and in
12 relation to that. The witness Moerbauer said, at page
13 3655, lines 1 to 3 of the transcript:
14 "This document was in binder 18 and was also
15 handed to me by my colleague, Navrat, at Vienna police
17 Your Honour, this document which is admitted into
18 evidence makes reference to the fact that a number of
19 persons, on the recommendation of General Pasalic, were
20 to be detained for a period of 30 days; and in
21 particular, at the very bottom, the fourth numbered
22 paragraph at the very bottom, says:
23 "Issue an arrest warrant by MUP BiH Interpol for
24 Zejnil Delalic, Commander of TG1", et cetera.
25 In my submission, your Honours, this Exhibit 137,
1 goes, in my submission, to the question of whether or
2 not a campaign may or may not have been being waged
3 against him. The reason I say that it has an indicia of
4 reliability is because a person in the position of
5 Mr. Delalic, when hearing of these charges being raised
6 against him, may well speak of it in terms such as
8 I go on, your Honours. In the third paragraph of
9 this particular document there is a reference there to:
10 "From that time until 25th November 1992 I was in
11 the war for 24 hours a day."
12 Your Honours, you again heard the evidence of
13 General Pasalic in relation to the time when it is said
14 by him that the accused left the Konjic area and for a
15 time at least General Pasalic was saying he did not know
16 where the accused was. Your Honours, the document
17 numbered 124, Exhibit 124, in particular on the -- in
18 particular on the first page in the third paragraph
19 there is what I would submit is a reference to that
20 particular incident that was referred to by General
21 Pasalic in his evidence, where it says:
22 "In the course of the day on 25th November 1992
23 I was warned that someone close to me would try to kill
25 Now, in my submission, your Honours, there has
1 been evidence heard that the accused, Mr. Delalic, was
2 concerned for his life at that particular time. That
3 was offered by him as a reason as to why he left the
4 Konjic area at the time that he did. In my submission,
5 your Honours, this document, document 117, when read in
6 conjunction with 125 -- sorry, 124 -- tends to show that
7 the reference there to that date is something which is
8 written about the accused. It may well have been
9 written by the accused Delalic but is certainly
10 consistent with the other evidence that your Honours
11 have heard.
12 If I go on to the second paragraph, the -- sorry,
13 the next paragraph of Exhibit 117, if we can go back to
14 that please, Exhibit 117, and go to the next paragraph,
15 it starts:
16 "In July", at the very top of your Honours'
17 screen, "I was appointed the Commander of Tactical Group
18 1, which co-ordinated the army forces in the wider area
19 of northern Herzegovina, central Bosnia, as far as Mount
21 Your Honours have heard evidence on the question
22 of who, in July, was appointed the Commander of Tactical
23 Group 1. Your Honours, the document, the Exhibit 118 is
24 a document that I believe your Honours have seen, and if
25 that could be placed on to the screen, please, and if it
1 could be made as large as possible, thank you.
2 The English version of that document is a document
3 which appears to be signed by the chief of the armed
4 forces of the main staff, a gentlemen called Sefer
5 Halilovic. Your Honours have heard evidence from
6 General Pasalic in relation to the role played by the
7 Chief of Staff whose name was given to you as Sefer
8 Halilovic. Your Honours know from the evidence that
9 this was a gentlemen who was in a position as Chief of
10 Staff to control the various operations of the army of
11 Bosnia-Herzegovina in that period of July of 1992. Your
12 Honour will see from this document, Exhibit 118, that it
13 says, "I hereby appoint Zejnil Delalic to the post of
14 commanding officer of the BiH army Tactical Group 1 for
15 the area of Hadzici, Pazaric, Konjic and Jablanica."
16 In my submission, your Honours, this reference
17 here, having regard to all of the evidence that you have
18 heard in relation to Tactical Group 1 and the
19 responsibilities of the accused, Zejnil Delalic, would
20 tend to suggest that this reference is -- this document
21 is a reliable document, a document that your Honours
22 could consider as relating to the accused.
23 In my submission, your Honour, the fact that it
24 was found on the premises of INDA-BAU, a premises where
25 the Austrian police attested to the fact that they saw
1 the accused leave those premises a day or so before, is
2 further evidence that he was there, and I will take you
3 to a subsequent document later on which in my submission
4 will indicate that this accused did in fact have a
5 connection with that premises.
6 Your Honours, at the very bottom paragraph on page
7 1 of this document, in the English version of it, there
8 is -- and perhaps if that could be shown on the screen,
9 that is Exhibit 117, the very bottom paragraph if you
10 please, thank you.
11 It says:
12 "With the establishment of the 4th Corps, Mostar
13 and the 1 Sarajevo Corps already established, my former
14 zone of responsibility was covered. So in the middle of
15 November it was concluded that TG1 would be dissolved."
16 Your Honours have heard a great deal of evidence
17 about from General Pasalic and others about the creation
18 of the 4th Corp. General Pasalic attested to the fact
19 that the 4th Corps took over responsibilities of all of
20 these areas and it was because General Pasalic, as
21 Commander of the 4th Corps, took over this particular
22 area that he was empowered or authorised to conduct an
23 investigation into the events that occurred in Konjic
24 and in the Celebici camp. So in my submission, your
25 Honour, this is yet a further indicia of reliability of
1 this document and would, in my submission, tend to
2 suggest that it was a document written either about this
3 accused or by this accused. It says:
4 "From the moment that my duties were practically
5 taken over by these corps and finally I catch my breath
6 and go on a long-awaited visit abroad."
7 It then makes reference, your Honour, to the
8 deputy. I will come back to that later.
9 The second page, if your Honour pleases, of this
10 document, and in the top paragraph of the second page,
11 the first full sentence that appears there, it says
13 "I believe that on 20th November, 1992, I made a
14 recommendation to the main staff for Colonel Arif
15 Pasalic" -- the very man that your Honour has heard
16 testify -- "to be made Commander of the 4th Corps, which
17 was accepted. That is why I still have not fully
18 comprehended some of his moves following my departure."
19 Your Honours, in my submission, that could not be
20 clearer. It relates clearly, in my submission, to the
21 fact that General Pasalic took the steps that he did to
22 have Zejnil Delalic arrested, and one would expect that
23 if indeed the accused, Zejnil Delalic, did recommend
24 that General Pasalic be appointed as Commander to the
25 4th Corps, which was accepted, he may be mystified,
1 distressed and disturbed that after having taken that
2 step, which was a step towards the promotion of General
3 Pasalic, that it turns around that he commences an
4 investigation against him, and may well be good reason
5 why he would write:
6 "That is why I still have not fully comprehended
7 some of his moves following my departure."
8 Again, I submit, your Honour, that these are
9 further indicia of reliability.
10 The next sentence says:
11 "Persons who knew about any travel plans were
12 first of all Colonel Pasalic."
13 There may be some dispute between the accused
14 Zejnil Delalic and Pasalic in relation to this question,
15 but it seems that there is at least some aspect of this
16 that might be correct, because you heard General Pasalic
17 attest to the fact that he did take steps to warn the
18 accused about travelling through various parts of
19 Herzegovina at that relevant time.
20 The next paragraph, your Honours, again makes
21 reference to that date, that important date, in my
22 submission, the 25th November, and again makes reference
23 to the fact that an attempt was made upon his life.
24 He then speaks, in the next paragraph, the author
25 of this document then speaks, in the next paragraph, "at
1 about 8 pm on 25th November we left" and then gives the
2 route by which they left. Then says:
3 "In Zagreb we had breakfast at 8 am in a splendid
4 restaurant. At 10 am I continued the trip to Austria"
5 -- Austria, bear in mind, is where the offices of
6 INDA-BAU are located:
7 "At the border crossing Spilfeld I even typed the
8 date '26th November' in passport", which disproves all
9 those fancy fabrications about helicopters and other
11 Your Honour has heard evidence about helicopter
12 escapes, how it was said that the accused, Zejnil
13 Delalic, had defected to the Serbs and had been picked
14 up in a helicopter and flown off to somewhere in Serb
15 hill territory which he denied, which again, in my
16 submission, is being denied here with the use of the
17 words "disproves all those fancy fabrications about
19 Your Honours, the document Exhibit 144, at page 7
20 of that document, if we could go to page 7 and it is the
21 paragraph third from the bottom, if that could be
22 highlighted for me, please. Your Honours, I wish to
23 take you to the very last sentence there in that
24 paragraph, starting with the words, it is the top one as
25 you see on your screen, the sentence starting:
1 "The staff of splendid restaurant knew me well and
2 welcomed me warmly. We continued on our way to Maribel
3 at about 1000 hours. The Croatian side checked my
4 passport on computer and the Austrian stamped the date
5 of my crossing, 26th November, 1992 at Spilfeld".
6 As we know, helicopters do not land in Spilfeld,
7 particularly not Chetnik ones.
8 Again, I submit to your Honours that this is
9 further evidence of the authenticity and reliability of
10 this document.
11 Going back, your Honour, to document 117, if
12 I may, and to the second page that we were considering
13 before, and to the one sentence, paragraph in the very
14 middle of the page, if that could be highlighted
15 please. That sentence appears at the bottom of your
16 Honours' screen, it says :
17 "In Vienna I was met by a large group of
18 enthusiastic sympathisers, family and business friends."
19 Your Honours, there is a reference, then, to the
20 fact that he made contact in the next paragraph, the
21 fact that he made contact with associates in Konjic and
22 indeed, in my submission, the documents will show that
23 contact was made back, especially with the deputy.
24 There is a reference under the second question,
25 which is the second last paragraph on that page, to a
1 conversation with Colonel Jovan Divjak, a person that
2 your Honours have heard from in the course of the
3 evidence. It says, interestingly, that:
4 "I saw and talked to Colonel Jovan Divjak when he
5 appeared in Konjic in mid-October as the first member of
6 the main staff who managed to leave Sarajevo."
7 Your Honours will recall Colonel Divjak testifying
8 to the fact that he had travelled by taxi, he had left
9 Sarajevo and then he made his way, ultimately and
10 finally arrived in Konjic. He also spoke of the time
11 when he was there and he also spoke of meeting the
12 accused, Zejnil Delalic. In my submission, those
13 matters again are matters which go to show the
15 If we go over to the third page, your Honours,
16 please. At the top of the page it says:
17 "My colleagues have been detained without any
18 legal basis and those who organised it have not even
19 issued orders for detention", et cetera.
20 Again, I submit that this is a reference to the
21 fact that not only did General Pasalic seek to detain
22 and question and ultimately commence legal proceedings
23 against, if that was the result of the investigation,
24 not just one person but a number of persons, those
25 persons were mentioned by General Divjak in the Exhibit
1 137, which I have taken your Honours to and we know that
2 the accused, by the evidence, was related -- had
3 association with some of those persons, such that he may
4 well refer to them as his "colleagues".
5 Your Honours, then there is a reference in the
6 next, fourth question, it is said, the final paragraph:
7 "As regards requiring material benefit, it is
8 exactly the opposite. Just in brief, I am offering
9 10,000 Deutsch Marks reward to anyone who can confirm a
10 name, headquarters or person to whom I have sold
11 anything or from whom I have taken even one Dinar,
12 Deutsch Marks or the like."
13 Your Honours, in document 124, at page 3, and it
14 is the top paragraph of that document, could that be
15 highlighted for me please, just the very top. Your
16 Honours will see in about the centre of that paragraph,
17 the following words:
18 "I will offer a reward of 10,000 German Marks to
19 anybody who can prove that I have sold a single gun,
20 bullet or anything else to anyone. On the contrary, at
21 the start of the war I mortgaged two large family, fully
22 furnished houses and invested over a million German
23 Marks to buy all sorts of things from weapons and
24 vehicles to fuel, hand-held radios and signal systems,
25 including 2,000 uniforms."
1 In my submission, your Honours, having regard to
2 the fact that this document, Exhibit 117, was, in our
3 submission, found on the premises of the accused at
4 INDA-BAU, it was referred to by Mr. Moerbauer as a
5 document that was contained in binder 12. That it has
6 all this indicia of reliability makes it not only
7 relevant and probative but sufficiently reliable and
8 should be admitted into evidence, and I move that it be
9 admitted and accepted into evidence.
10 JUDGE KARIBI-WHYTE: Thank you very much. Any reaction from
11 the Defence?
12 MS. RESIDOVIC: Yes, your Honours. I repeat, witness
13 Moerbauer, in the course of the cross-examination, on
14 page 3754 and 3755, said clearly in this court that he
15 could not recognise any one of the documents in the
16 binders because they did not contain his mark, except
17 for one document beginning "Dear Edine", which allegedly
18 comes from Zejnil Delalic's apartment. For those
19 reasons the court rightly asked the Prosecutor to bring
20 witnesses who would be able to recognise the documents,
21 that is the people who actually seized those documents
22 in INDA-BAU. Witness Navrat, who did the search in
23 INDA-BAU, was not able to confirm the authenticity of
24 any one of these documents in the binders. He only
25 confirmed the colour of the binders shown to him.
1 Therefore, the ruling of the court and the efforts of
2 the Prosecution to prove that these documents were in
3 INDA-BAU premises through the witness were not proven.
4 Navrat, Panzer and the other witnesses from
5 Austria showed clearly that INDA-BAU is not owned by
6 Mr. Delalic and that from its beginning to the present
7 day Mr. Zejnil Delalic never worked in that firm.
8 Therefore, the connection between Mr. Delalic and those
9 premises does not exist.
10 The Prosecutor, trying to link this document with
11 the facts inside with some other testimony heard by this
12 court, wishes to indicate its reliability and
13 authenticity. I draw attention to the court that this
14 is a document written in handwriting, that it has no
15 date, that it is not signed, that we are trying to bring
16 into evidence a document that was allegedly found on
17 18th March, 1996 in Vienna, merely because my client did
18 in fact in November 1992 leave Konjic and go to Vienna.
19 This is an undisputed fact, which the Prosecutor has
20 already proven in the court and which has been confirmed
21 by many witnesses, cannot retroactively be applied to a
22 document found four years later, in order to assert the
23 reliability of that document.
24 Therefore, your Honours, offering an analysis of
25 this document whose handwriting we do not know, no one
1 has recognised it. It has not been signed. It is not
2 dated, and asking that it be admitted, we are being
3 placed in completely -- in a situation which we cannot
4 understand at all. There are also facts that the
5 Prosecutor could prove through the passport of
6 Mr. Delalic or through Mr. Arif Pasalic. We are putting
7 in a situation for a document to be admitted then in the
8 future on the basis of such an unreliable document
9 another document may be admitted.
10 Unfortunately, I have never had such an experience
11 before. You, your Honours, have much more, so I may be
12 wrong. I think that bearing in mind the testimony of
13 Mira Panzer and Navrat we cannot confirm the origins,
14 the source of this document, who signed it, when it was
15 signed. It is absolutely unreliable, regardless of the
16 fact it refers to, and I feel that it cannot be
18 JUDGE KARIBI-WHYTE: Thank you very much. I think we will
19 consider it and perhaps give a ruling early next week
20 some time.
21 MR. NIEMANN: As your Honour pleases. Your Honours, the next
22 document that I ask to be displayed on the screen is
23 document 118. In relation to the document 118 that now
24 appears on your Honours' screen, I have shown your
25 Honours this document in the course of the submission
1 I made in relation to Exhibit 117. In relation to this
2 document, Mr. Moerbauer said this was also in binder 13,
3 "was handed to me by my colleague, Navrat, at the
4 Vienna police headquarters after the house search, at
5 Koppstrasse 14."
6 Your Honours, this document was shown to the
7 accused, Mr. Delalic, by my colleague Ms. McHenry during
8 the course of an interview on 22nd and 23rd August of
9 1996. At that stage, when the document was shown he
11 "No, there was another document that was written
12 earlier than this one. That document is dated 11 July,
13 but I received that document after I received this one,
14 so that one is not valid."
15 In my submission, your Honour, there is no
16 suggestion in the response that the accused gave that
17 this is not a document that was found in the premises
18 and not a document that necessarily relates to him. He
19 does, however, I readily admit, does however say that
20 this is not the only one, that there were two
21 documents. That does not in any way go to the question
22 of whether or not it was a proper document relating to
23 him. It certainly does not address the concern of the
24 Defence that it was a document that was not found on the
1 This document, however, has, in my submission,
2 been admitted into evidence. It has been admitted into
3 evidence as an annex to the record of interview itself,
4 Exhibit 99, so it is not necessary for me to move for
5 its admission. But the reason I am referring to it
6 specifically is because of the inconsistency that is
7 created by the suggestion of the Defence that the
8 Prosecution has no way proved where these documents come
9 from and that therefore, because we have failed to do
10 that, that they should not be admitted into evidence.
11 It is ironic indeed that when the accused is
12 confronted with this document he does not say, "this is
13 not a document of mine, where did you find it?", and
14 reject it on that basis. No, he merely questions the
15 date of it and raises the fact there was another
16 document which he says is more relevant to the issue.
17 I further say, your Honours, that the Defence counsel
18 have admitted on numerous occasions that INDA-BAU was
19 the accused Delalic's business, and as said in the
20 record of interview, he agreed with this particular
22 I go on, your Honours, to the next document which
23 is exhibit --
24 MS. RESIDOVIC: Your Honours, may the Defence say something
25 in connection with the reliability of the evidence
1 offered by the Prosecution?
2 JUDGE KARIBI-WHYTE: Yes, you can.
3 MS. RESIDOVIC: First of all, the Defence has never stated
4 that Delalic was the owner of INDA-BAU. Delalic worked
5 in INDA-BAU in Munich and the Prosecutor has the
6 appropriate evidence of this. He did not work in
7 INDA-BAU, Vienna. Secondly, since my learned colleague
8 Ms. McHenry is in the courtroom who also showed the
9 document, dated 11 July, 1992, to my client in the
10 course of his interrogation in Scheveningen, and in my
11 presence, I must say that that is precisely proof of the
12 unreliability of the evidence being offered to prove
13 that the documents were found in Vienna.
14 These are documents that were shown to the
15 witnesses Pasalic and Divjak. This is a document
16 regarding his appointment of 11 July, 1992, found in
17 Munich and not in Vienna, and which at the top indicates
18 the fax number, INDA-BAU, 23rd July 1992, to allege that
19 my client was shown a document from Vienna can easily be
20 disproved by insight into the statement of my client and
21 his comment indicating why the date of 23rd July is
22 there, and during hearing these witnesses and especially
23 the Generals, the court has been able to see what the
24 difficulties were in the communication between the
25 Supreme Staff and the ground forces, how difficult it
1 was to deliver appointments, orders and other documents
2 from Sarajevo into the field and the court was able to
3 establish that all communications with foreign countries
4 by messengers et cetera, how difficult they were, and
5 sometimes lives were risked to get a message to its
7 There is no doubt that my client was shown this
8 document from Munich, and on that document the fax
9 number is indicated and the date, and Munich. This
10 document that is now being offered as evidence to prove
11 that he was shown a document from Vienna is illustrative
12 of the unreliability of all the documents found in those
13 folders. Therefore, we do not object to this document
14 which is attached to the statement, but it is not the
15 document that it is purported to be. There is no
16 reliable proof to show that this document of 11th July
17 was in any one of the folders which the witnesses
18 recognised in this courtroom and which were found in the
19 INDA-BAU company. In fact, the Prosecutor, by this
20 exhibit, is proving the unreliability of his own
22 MR. NIEMANN: Your Honours, I wonder, then, why Madam
23 Residovic in the motions that she filed on 28th May,
24 1996, when she denies so emphatically that this accused
25 had anything to do with the INDA-BAU premises in Vienna,
1 she would say the following:
2 "Carrying out the Prosecutor's orders, the
3 authorities of the Federal Republic of Germany and the
4 Republic of Austria seized Zejnil Delalic's flats and
5 business premises in Munich and Vienna. On this
6 occasion they seized a large quantity of evidence which
7 belonged to Mr. Delalic and to third persons entirely
8 unconnected with the matter under investigation. More
9 than 80 videotapes were seized, most of them the
10 property of BiH society in Vienna, as well as business
11 documents and archives of business firms co-owned or
12 managed by Mr. Zejnil Delalic. The personal files of the
13 employees of these firms and other documents ..."
14 Is she suggesting now to this Chamber that she had
15 no instructions to write this and put this in her
16 motion? In my submission she cannot speak in forked
17 tongue on this matter. They are either the premises of
18 the accused in Vienna or they are not. If she said so
19 earlier then in my submission she is estopped from now
20 arguing that they are not his premises.
21 MS. RESIDOVIC: Your Honours, you have the motion of the
22 Defence and it clearly applies to various premises in
23 Munich and Vienna, for example the company Nike, which
24 was searched and where nothing was found, as testified
25 by Austrian offices, is co-owned by my client. However,
1 the firm INDA-BAU as shown by all the witnesses and
2 there are also documents to show when INDA-BAU was
3 founded and who were the owners and so on. I think
4 those documents speak much more than any Defence motion.
5 JUDGE KARIBI-WHYTE: Thank you very much.
6 MR. NIEMANN: Your Honours, now addressing the question of
7 the document of 11th July, which, as I said, I should
8 refer to it by its exhibit number, 118, is already
9 admitted into evidence as part of Exhibit 99. I make
10 particular reference to page 41 of the record of
11 interview where this document is discussed, and the
12 discussion proceeds as follows. This is the interview
13 with Mr. Delalic on 23rd August 1996 at Scheveningen. It
14 is said, "why is it that you kept copies of the 11th
15 July document, but did not have any copies of the 27th
16 July document?" In my submission, the reference to the
17 11th July document is a reference to Exhibit 118.
18 The answer is, from the accused, "I had both." The
19 investigator then says, "you had a copy of the 27th July
20 document in Vienna or Munich" -- I emphasise Vienna --
21 "I have no idea, I could have been both in Vienna or in
23 Then it goes on then to, "what authority, if any,
24 did you have over Konjic?" In my submission the accused
25 is not saying there, "Vienna? I know nothing about
1 Vienna, I have never had any business premises in
2 Vienna". He does not say that. He says, "I have no
3 idea, I could have been both in Vienna or in Munich".
4 MS. RESIDOVIC: Your Honours, in view of this argument
5 there is no doubt that my client until 25th November had
6 residents also in Vienna. Therefore, on that occasion
7 he did not exclude the possibility that that document
8 shown to him may have been in Vienna, but it was not
9 this document that was shown to him, but another
10 document which has an indication of the fax number and
11 dated 23rd July, 1992.
12 MR. NIEMANN: In any event your Honours, I do not think it is
13 necessary to --
14 JUDGE JAN: I want to find out, does it contain the fax
15 number and the date?
16 MR. NIEMANN: Perhaps I might have a look. Could we look at
17 Exhibit 99?
18 MR. MORAN: Your Honour, if I may be of some help, Exhibit 99
19 annex 9 is the one that has the fax number across the
20 top of it that says "INDA-BAU". I do not believe there
21 is any fax notation at all on the other order.
22 MR. NIEMANN: If we could look at Exhibit 99 --
23 MS. RESIDOVIC: I would like to ask Delalic's statement to
24 be looked at, as we are having this discussion about the
25 facts. It was only this document that was shown to
1 Zejnil Delalic during the interrogation, the interview.
2 JUDGE JAN: Were the fax machines working at the relevant
3 time between Sarajevo and Konjic? How could there be a
4 fax number on it?
5 MS. RESIDOVIC: That is exactly the proof, how
6 communications functioned in -- it somehow reached
7 Zagreb and then from Zagreb it was sent elsewhere.
8 Sometimes it took several months for a document to reach
9 its destination. If I may, as an amicus curiae, tell
10 you in the middle of 1993 the constitutional court of
11 Bosnia-Herzegovina made an analysis in which it said the
12 official gazettes printed in Sarajevo were delayed 30 to
13 93 days. We had nothing there at the time. The
14 witnesses have tried to explain to you, and the route
15 that document took is best illustrated by the fact that
16 apparently this document was found in Munich, at least
17 that is what the Prosecutor says.
18 My client said it was his document, and explained
19 why it carried a fax number, but he did not know where
20 it came from, and that is not this document that is now
21 being tendered within the framework of the folder from
22 Vienna. That is not the same document.
23 MR. MORAN: Your Honour, I was thinking about this last
24 night. I looked at a fax from my office I forget
25 regularly whether the fax notation is where it comes
1 from or going to. It is where it came from. I think if
2 we look at that telephone number it does say INDA-BAU.
3 I do not know what the country codes are for Austria and
4 Germany, but somebody can probably figure out where that
5 thing came from.
6 JUDGE JAN: I am just wondering, Mr. Niemann, I am just
7 wondering, you have -- you are tendering this order
8 appointing Delalic as the Commander of the Tactical
9 Group 1. The document which you are actually placing in
10 the court, does it bear the fax number? Some copies may
11 not have that number. I am just wondering.
12 MR. NIEMANN: It seems there are some that may and some that
13 do not. May I see Exhibit 118, and I will be able to
14 let your Honour know?
15 JUDGE KARIBI-WHYTE: You are still arguing 118.
16 MR. NIEMANN: Yes, your Honours.
17 JUDGE JAN: I just want some information, that is all.
18 MR. NIEMANN: Yes. Perhaps I could see the document. There
19 is no fax number appearing on this one, your Honours,
20 which appears to be a copy of the document, and I hand
21 it to your Honours to examine. Your Honours, the
22 document that I first hand you is the one shown in the
23 course of the record of interview.
24 JUDGE JAN: Which was the copy shown to Mr. Delalic when he
25 was interviewed by the OTP?
1 MR. NIEMANN: This is the one I now show you, your Honour.
2 JUDGE JAN: Apparently the copy which has been filed before
3 the Tribunal does not contain this endorsement related
4 to fax, because this is dated 23rd July, 1992, this fax.
5 MR. NIEMANN: This is the copy that was found at the
6 premises, your Honour. (Handed).
7 JUDGE JAN: Okay. You are producing the document which was
8 found in the premises. Please take this.
9 MR. NIEMANN: Might that be handed back? So it seems, your
10 Honour, that there may well have been two copies, but in
11 my submission that is a copy of the very same document,
12 one being a document found in the premises, and one
13 being a copy. From where it comes, I am not sure that
14 I know. It may well come from Munich.
15 JUDGE JAN: Does it assume some relevancy?
16 MR. NIEMANN: Yes, your Honour, it seems there may have been
17 two copies of it, one which was found at the premises in
18 INDA-BAU in Vienna and there may well be a copy sent
19 from somewhere else.
20 JUDGE JAN: They are not both originals, copies of the fax.
21 MR. NIEMANN: Both copies, yes, your Honour. I submit that
22 they are the same document, it is merely a copy. But
23 I tender the copy found in the premises, which is number
25 MS. RESIDOVIC: Your Honours, of course we object, because
1 this shows best how documents were confused and nobody
2 ever managed to establish what was found in which
3 folder. We simply do not know where this document comes
4 from. The document shown to my client was one that he
5 recognised, but witness Moerbauer showed that his
6 markings had disappeared, which is further -- also the
7 fact that there is no marking on this document speaks to
8 the unreliability of all the documents coming from
10 JUDGE KARIBI-WHYTE: Yes, you can continue.
11 MR. NIEMANN: Your Honours, the next document is -- that I go
12 to is 119. Your Honours, this is in the nature of a
13 hand-written note, which was referred to in evidence by
14 Officer Moerbauer at page 3652, line 16 to 18 of the
15 transcript. He says in relation to this document:
16 "This document was in binder I4 and was also
17 amongst the items that were handed to me by my
18 colleague, Navrat, following search of Koppstrasse 14.
19 These were handed to me at the Vienna police
21 Your Honours, this document in the fourth numbered
22 paragraph, it is a hand-written document, makes reference
23 there to, "Pavo Mucic (BiH Territorial Defence) is in
24 charge of transport". It is signed under the heading
25 "Commander", and there is hand-written then the name,
1 "Zejnil Delalic". There is a reference in the
2 left-hand side of the page to the 8th May 1992, and on
3 the hand-written copy the initials for the city of Zagreb
5 JUDGE JAN: This is interesting. He was admitting he was in
6 Konjic in May 1992; the place mentioned is Zagreb. That
7 I believe is in Croatia?
8 MR. NIEMANN: It is indeed in Croatia, your Honour.
9 JUDGE JAN: That is a date when he was not even a
11 MR. NIEMANN: It is an interesting matter your Honours. If
12 I can take your Honour to Exhibit 124.
13 JUDGE JAN: We are talking about reliability.
14 MR. NIEMANN: Can I take you to 124?
15 JUDGE KARIBI-WHYTE: Let us have a short break and come back
16 at 4.30.
17 (4.00 pm)
18 (Short break)
19 (4.30 pm)
20 JUDGE KARIBI-WHYTE: Yes. I hear you.
21 MR. ACKERMAN: Thank you, your Honour. Before Mr. Niemann
22 begins, I want to formally for the record announce that
23 we are withdrawing the request for hearing that we had
24 filed some time within the last 10 days regarding the
25 memorandum that was circulated to the court by the
1 Office of the Registrar. I wanted to make it real clear
2 now before the Prosecutor goes to the expense of flying
3 Witness J back into The Hague and also to avoid getting
4 into what may be a serious hurrah that Judge Jan
5 identified about immunity of UN witnesses, and that
6 would have something to do with they are immune when
7 they are asked to assist the Defence but not immune when
8 asked to assist the Prosecutor. Rather than get into
9 all that we would withdraw and obviate the necessity of
10 that hearing. Thank you.
11 MS. McHENRY: Your Honours, Mr. Niemann has asked me to
12 respond to this, if I may.
13 JUDGE KARIBI-WHYTE: Yes.
14 MS. McHENRY: The Prosecution would still be planning on
15 calling Witness J because as indicated in our motion we
16 think it is relevant evidence with respect to the issue
17 about immunity. I think if the security guard declined
18 to testify and we tried to subpoena him those issues
19 would have arisen, but the security officer, excuse me,
20 security officer has agreed to testify and has not
21 requested any kind of privilege. Since there cannot be
22 any doubt that a member of the United Nations is
23 permitted to testify, there is no issue, so although we
24 thank the Defence counsel for trying to move things
25 along, it is still our intention to call Witness J and
1 the security officer as evidence in the case in chief as
2 well as potential consideration for your Honours as a
3 separate contempt. But we are bringing it in the case
4 as evidence in the case. Thank you.
5 MR. ACKERMAN: Well, your Honour, I apparently mistakenly
6 relied upon Mr. Niemann's response to Judge Jan this
7 morning. When Judge Jan inquired, Mr. Niemann said the
8 only reason this was coming up was because we filed that
9 motion. I thought by withdrawing that motion it would
10 not be coming up. Apparently that was not the case. We
11 then will have to get into some fairly serious
12 discussions about this immunity issue, because those in
13 charge of UN employees can very easily instruct them
14 when they should refuse and not refuse to testify and
15 protect them with immunity. That is extremely unfair,
16 an egregious denial of equality of arms and perhaps
17 something that could cause this whole case to be
19 JUDGE KARIBI-WHYTE: Actually I am not in possession of all
20 the facts at this moment. I have seen only one of them,
21 the motion, which is Ms. McMurrey on behalf of Landzo.
22 I think that is all I can talk about. In any event if
23 your application to withdraw still stands, then no one
24 can take notice of it.
25 MR. ACKERMAN: Your Honour, it still stands. And let me just
1 expand very briefly. The court will recall that a
2 number of the witnesses who came here and testified
3 about experiences in Celebici when confronted with
4 statements which were contrary to their testimony
5 testified that the interpreter must have made a mistake
6 and that is not what they said. The interpreters are
7 all UN employees and we had understood from a previous
8 attempt to get an interpreter to testify that there was
9 an immunity which could only be waived by the Secretary
10 General of the United Nations. I do not know if that is
11 the case or not, whether we were misinformed at that
12 time or not. But if it is now the case that UN
13 employees are not immune and may testify, then under the
14 principle of equality of arms again we absolutely are
15 entitled to call of those interpreters to impeach those
16 witnesses and say their interpretations were correct and
17 I think that is what they will say.
18 MR. GREAVES: Your Honour, there is a convention in force
19 which relates to diplomatic personnel which also applies
20 to UN personnel. In the case of the UN, as I understand
21 it, Mr. Koffi-Anan, the Secretary General, has to
22 circulate a list of those entitled to the privileges
23 under that convention. I formally call upon the
24 Registry to identify those persons who are interpreters
25 as to whether or not they are on that list, or whether
1 they have ever been on the list circulated by the
2 Secretary General and whether there are any security
3 guards on the list of those being entitled to the
4 privileges of the relevant convention.
5 JUDGE KARIBI-WHYTE: I want to refer to what Mr. Ackerman has
6 said. The only case I remember here was one of the
7 interpreter, and I do not think we relied on the UN
8 convention for it. We thought it was mainly one of
9 policy, public policy and the circumstances in which it
10 all happened. Well, I suppose it depends on the nature
11 of the issue whether such might be a valid excuse for
12 not testifying. It is not an absolute one, because
13 I think there are very few things which might weigh
14 against the interest of justice. So it depends on the
15 issue. But if your motion has any relationship with
16 what has come in and I suppose by the Prosecutor, then
17 it depends what that position is at the time it is being
18 discussed, because if that has been withdrawn then
19 perhaps you might discuss it with the Prosecutor and see
20 what the position is.
21 JUDGE JAN: All I wish to add is that let us concentrate on
22 the main case instead of getting involved in the side
24 MR. GREAVES: Quite.
25 JUDGE KARIBI-WHYTE: This is the point. I think that is all
1 for the time being, but definitely we have a matter
2 before us and nobody wants to be distracted from that
3 main issue.
4 MR. NIEMANN: As your Honours please. Your Honour, Judge Jan
5 said to me just before you went out on the adjournment
6 about the reference to Zagreb. I was about to address
7 that issue for your Honour. Your Honour, if we can go
8 to the document 124.
9 MR. GREAVES: Could we have the document back on the monitor,
11 MR. NIEMANN: 124. Perhaps we might start, just so everyone
12 can refresh their memory. We could have the document on
13 the monitor to start with; could we start with 119, so
14 we can see that? I am sorry to do that to you, but 119
15 first, and then back to this document. This is the
16 document, your Honours, that I am now addressing,
17 Exhibit 119. There is a reference in the bottom
18 left-hand corner to Zagreb. Your Honour Judge Jan
19 mentioned that to me. Now, if we go back to 124, if you
20 please. Can the very bottom paragraph be expanded as
21 best you can for me? Thank you.
22 Your Honours, the bottom paragraph there says:
23 "I have been in the war 24 hours a day since last
25 JUDGE JAN: He refers to his visit to Zagreb.
1 MR. NIEMANN: In May 1992. That, your Honour, was also
2 referred to by the accused in his record of interview,
3 the accused Zejnil Delalic, in his record of interview,
4 which is Exhibit 99 and at page 3 -- that cannot be
5 right. Sorry, page 3 of the interview of the 23rd
6 August, 1996 at Scheveningen there is reference there
7 again, your Honours, to that. If I may very quickly
8 take your Honours to it. It says, just at the very top
9 of the page, there is a reference to the presence of
10 counsel, Madam Residovic, and then the investigator
12 "Then we are ready to start questioning. Is it
13 correct that you were interviewed in a Zagreb TV
14 programme called Slipomna Siku" -- I am sorry.
15 JUDGE JAN: I am worse.
16 MR. NIEMANN: The accused says "yes". The investigator says,
17 "when was that?" The accused says:
18 "That was in the month of May when I went to
19 Zagreb for logistics.
20 "In the beginning of May, mid-May or the end of
22 The accused says: "The first half of May". The
23 investigator then says: "What was the purpose of the
25 He said:
1 "There was an association of people from Konjic in
2 Zagreb and the war had only just begun. They wanted to
3 hear more of what was happening in Konjic. You know
4 that Konjic is 350 kilometres away. So it was the very
5 beginning of the war, they wanted to have accurate
6 information of what was happening in Herzegovina and
7 what kind of co-operation had existed between the TO and
8 the HVO."
9 That is what the accused said. We have a copy of
10 this interview, and it is Exhibit 116, if your Honours
11 please. I think part of it was already shown.
12 JUDGE JAN: Thank you.
13 MR. NIEMANN: Your Honours, the Exhibit 119 that we are
14 referring to, if we could go back to that, please, 119,
15 in my submission has indicia of reliability. It relates
16 to the question of the supply, talks of loads of trucks
17 with military armoured vehicles, talks about compiling
18 an exact list of weapons, and then says:
19 "Pavo Mucic is in charge of transport."
20 Having regard to all the evidence we have heard
21 about what it was that the accused did, the accused
22 Zejnil Delalic did, in terms of equipping the army and
23 setting up the new military force of Bosnia-Herzegovina,
24 at that very early time, bearing in mind that there is a
25 reference to Zagreb, I submit that this is an
1 appropriate -- this document is a reliable document and
2 should be admitted into evidence. I move that it be
3 admitted into evidence.
4 MS. RESIDOVIC: I move to the contrary, that this evidence
5 not be admitted for the argument -- reasons witness
6 Moerbauer did not recognise as one of the documents
7 which were shown to him and the witness Navrat who
8 allegedly seized this document from INDA-BAU did not
9 recognise this document, or did not mark it in any way.
10 Further, in the analysis of their evidence, the
11 Prosecutor relies on the evidence that will be taken
12 into account separately, and in conjunction with one
13 another and it is not disputed that there are documents
14 that have been presented here that -- that show that my
15 clients did -- was involved in the procurement of
16 certain items. However, this document is unreliable,
17 because it was discovered four years after the war on
18 the premises which do not belong to Mr. Delalic, nor did
19 he ever work in these premises; and the title above the
20 -- my client's name, which says "Commander" and through
21 questioning the Prosecutor the Trial Chamber had an
22 opportunity to look at other relevant documents and in
23 all these relevant documents which were signed by
24 someone who was a commander in the Territorial Defence
25 of the armed forces of Bosnian Herzegovina, or later in
1 the army of Bosnia-Herzegovina, no such document was
2 ever signed with "Commander", regardless of who signed
3 it, my client or another commander. In other words, the
4 word "commander" is a word, and it is spelt
5 "supotvetnik" with a commanders, were always signing
6 their orders as commandant. So this very minor thing
7 points to the fact that this document, even in the form
8 which it was written, could not and cannot be considered
9 reliable in any way.
10 So, in addition, this is a completely irrelevant
11 document, because regardless of who wrote this and when
12 this was written, this has nothing to do with Celebici.
13 This has nothing to do with commander responsibility, so
14 from those standpoints, is it reliable or relevant, and
15 so this document cannot be admitted. Thank you.
16 MR. GREAVES: Apart from the arguments advanced by my friend
17 Ms. Residovic, as far as Mr. Mucic, there are arguments
18 as matters of law as to why this evidence should not be
19 admitted. Can I remind your Honours of Rules 89C and
20 89D, please? 89C entitles your Honours may admit any
21 relevant evidence which it deems to have probative
22 value. As far as Pavo Mucic is concerned, the following
23 matters may appeal to your Honours. There is no
24 relevance whatever as to paragraph 4 of this document to
25 the charges laid out in the indictment. The fact of the
1 allegation that Pavo Mucic was in charge of some
2 transport on 8th May 1992, a period outside the period
3 in the indictment, has no relevance whatever to the
4 matters on the indictment.
5 Secondly, it has no probative value of any fact in
6 issue in this trial. The second matter is this: it is
7 alleged that this is a document prepared by Zejnil
8 Delalic. I make no comment as to whether the
9 Prosecution have proved that fact, although it is one
10 that they have to do. The fact of the matter is if this
11 is admitted into evidence and it is demonstrated that
12 the author is Zejnil Delalic, Zejnil Delalic cannot be
13 forced to give evidence. If it was the position of my
14 client that we wished to contest the contention in
15 paragraph 4 we would, of course, be prevented from
16 cross-examining Mr. Delalic as to the truth of that
18 That brings into play Rule 89D, which entitles
19 your Honours to exclude evidence if its probative value
20 -- which we say is nil, in any event, but if it has any
21 probative value that probative value is substantially
22 outweighed by the need to ensure a fair trial. I refer
23 your Honours again to Article 21 and the provisions
24 concerning fair trials and the entitlement to
25 cross-examine witnesses against you. We are, if you
1 admit this, prevented from examining the author of the
2 document as to its veracity. I note in passing it
3 refers to Donje Selo barracks. Amongst the many
4 military establishments of which we have heard of in
5 this case, that is not one. I submit that that amply
6 demonstrates the lack of any relevance or probative
7 value to this document. Whatever decision you might
8 come to in relation to its admissibility generally, it
9 ought to be excluded for the reasons that I have set
11 MR. NIEMANN: Your Honours, in our submission, we say that
12 this document is relevant, probative and should be
13 admitted. We say so on the basis that the document
14 makes reference to the fact that there is a relationship
15 existing between Zejnil Delalic and Pavo Mucic, in the
16 sense that a reference is made to him in that capacity
17 at that time as being part of the Bosnia-Herzegovina
18 Territorial Defence. And in my submission, your
19 Honours, this, as an early document, a document at an
20 early point in time, when your Honours have already
21 heard evidence of the fact that this fledgling army of
22 Bosnia-Herzegovina was endeavouring to put itself
23 together and that there were efforts being made in
24 various places in order to equip this army goes to proof
25 of that fact.
1 The reference to the place Zagreb on 8th May 1992
2 I have demonstrated, and all of those matters in my
3 submission make it relevant, probative and admissible.
4 JUDGE KARIBI-WHYTE: Thank you very much. Is that all or
5 you have other exhibits?
6 MR. NIEMANN: Yes, on that document, your Honour. I move for
7 its admission. Your Honours, the next document that
8 I would like to take you to is Exhibit 121. Might 121
9 please be shown on the screen?
10 Again, your Honours, this is a hand-written note
11 found on the premises of INDA-BAU and when shown to the
12 witness Moerbauer he said, at page 3652, lines 22 to 25
13 of the transcript, that:
14 "This document was located in binder I4, handed to
15 me by my colleague, Navrat, at police headquarters in
17 Your Honours, this document is also an early
18 document which is dated in an early period of time, the
19 7th May, 1992. Your Honours, it is a document that
20 appears to be addressed to Konjic. It appears to relate
21 to the shipment of goods, for Sarajevo and for Konjic,
22 notifying that the shipment will arrive on Saturday.
23 There is a reference, your Honours, at the very top of
24 the document, to Konjic, then a number provided there
25 with MHZ, which your Honours may be aware could relate
1 to a radio signal being megahertz. Your Honours, it is
2 signed, or the name "Zejnil" appears at the bottom of
3 the document. There is reference there to firstly
4 Dr. Rusmo. Your Honours, in exhibit -- in document 129
5 on page 9, in the centre of the page, there is a
6 reference there, your Honour, a paragraph:
7 "There was an indication of a sudden U-turn in the
8 policy of Dr. Rusmir Hadzihuseinovic, President of the
9 War Presidency of Konjic municipality."
10 Your Honours, apart from this reference to
11 Dr. Rusmir Hadzihuseinovic as being the President of the
12 War Presidency, your Honours have also heard the
13 testimony of witnesses making reference to that man who
14 held that position in that capacity.
15 Your Honours, there is also a reference to the
16 name, I am going back now to Exhibit 121, if I may, to
17 the name "Ramic", and your Honours have heard evidence
18 of the role played by Ramic, Esad Ramic, in the TO of
19 Konjic at that particular period in time and in my
20 submission, your Honour, this document is a document
21 that should be admitted into evidence, on the basis that
22 it relates to events that your Honours have heard
23 testimony of, independent of the document, in relation
24 to the activities of the accused, Zejnil Delalic, at
25 that particular period of time, 7th May, 1992, when the
1 issue of him being involved in the acquisition of
2 materials for the army of Bosnia-Herzegovina was one of
3 the tasks that he was pursuing, and in this capacity
4 I submit that having regard to the other material, the
5 other references that I have taken your Honour to, that
6 it is a document that has an indicia of reliability and
7 should be admitted.
8 One could expect that the President of the War
9 Presidency is certainly a person that the accused,
10 Zejnil Delalic, one would expect to be writing to in
11 those early days when the evidence shows that it was the
12 President of the War Presidency and Zejnil Delalic and
13 Esad Ramic that were involved in preparing the fledgling
14 army for the defence of not only Konjic but later the
15 siege of Sarajevo. I would move that this is a document
16 that should be admitted into evidence.
17 JUDGE KARIBI-WHYTE: Any objections to this?
18 MS. RESIDOVIC: Yes, your Honour. Our submission is that
19 it should not be admitted for the reasons I have already
20 given. It has not been confirmed that it was contained
21 in I4 by the testimony of Moerbauer, nor was it
22 recognised by witness Navrat who testified here. Also
23 this document has no relevance in view of the period it
24 refers to. The arguments offered regarding the
25 personalities of Dr. Hadzihuseinovic and Ramic, these
1 things could be heard through other testimony, and those
2 arguments confirm the irrelevance and unreliability of
3 the previous document whereby the Prosecutor is trying
4 to confirm the position of Zejnil Delalic. Therefore it
5 is unreliable and irrelevant in view of the content and
6 the time, as it has nothing to do with Celebici or the
7 detainees thereof. Thank you.
8 JUDGE KARIBI-WHYTE: Yes, any other documents you intend
9 to ...
10 MR. NIEMANN: Your Honour, yes, the next document I move to
11 is document 122. Your Honours, again this is a
12 hand-written document that was found at the premises of
13 INDA-BAU. It appears to be a list or a memorandum of
14 sorts in relation to this particular document. When
15 shown to Mr. Moerbauer, at page reference 3653, lines 2
16 to 3 of the transcript, Mr. Moerbauer said:
17 "This document was also in binder I4 handed to me
18 by my colleague, Navrat, at the Vienna police
20 Again, in our submission it is a document that
21 relates to the acquisition of arms, presumably at that
22 early period in time when the fledgling army of
23 Bosnia-Herzegovina was attempting to equip itself. It
24 says in paragraph 1 of the document:
25 "Obtain the approval from the Defence Ministry for
1 the unimpeded flow of goods for Bosnia-Herzegovina
2 through Croatia."
3 Then it says in the second paragraph:
4 "Can the SDA" -- presumably the SDA Party of
5 Democratic Action -- "or some other source provide funds
6 for weapons and in what quantity, or are the weapons
7 only for Sarajevo and the environs?"
8 Then the third paragraph, "volunteer detachment
9 with weapons and equipment".
10 Your Honours, in document 123 there is again a
11 reference to the person Sabic, S-A-B-I-C , that you
12 referred to in this document. In Exhibit 144, on
13 page 3, if your Honours excuse me, firstly the heading
14 that appears at the top towards the top of this
15 document, "arms and ammunition smuggling". Then if
16 I may go down to the second paragraph, starting, "I came
17 to Konjic in March ..." Then it says:
18 "I brought as much money as I had at the time.
19 I and a few friends organised the Muslim population and
20 got in touch with the large existing HVO who was
21 operating underground. We worked day and night until
22 June. We had great results. The command was joint and
23 nobody asked who was doing what. We seized arms from
24 the JNA and Chetniks and distributed them to the
25 ever-growing units. I had nothing to do with the
1 distribution of weapons. The Konjic TO and HVO
2 logistics officers were in charge of distribution.
3 According to the then regulation, the MUP, that is the
4 chief, Jasmin Guska, had the exclusive right to
5 ammunition, which I think at the beginning numbered up
6 to 12 million pieces. He communicated with the manager
7 of the Unis factory in Igman. He must have all the
8 distribution delivery notes", and so on.
9 In my submission, this document speaks of the
10 role, the early role of the acquisition of this material
11 and its distribution in co-operation with others, and the
12 next paragraph that follows immediately after that in
13 this same exhibit, 144, it says:
14 "I bought 2,000 uniforms, a few vehicles, the
15 remaining communications equipment, Motorolas, fuel et
16 cetera, with my own money. I distributed them according
17 to need. The assets that were later received through
18 the main logistics officer like Hazim Sebic and others
19 were distributed according to the previously made plan."
20 In my submission, your Honour, that document also
21 is a document which tends to confirm that this document
22 is a reliable -- that there is indicia of reliability
23 having regard to its contents and having regard to what
24 we already know from the evidence of what the accused
25 was involved in, it being found at the premises of
1 INDA-BAU, premises which the accused himself has,
2 through his counsel, indicated clearly a connection
3 with, is in my submission a basis upon which it can be
4 admitted into evidence, and I move that it be admitted
5 into evidence.
6 JUDGE KARIBI-WHYTE: Any reaction by the Defence?
7 MS. RESIDOVIC: In addition to the arguments already
8 offered in connection with the contents of the three, of
9 the binders, I wish to repeat that Moerbauer could only
10 refer to analysis that he carried out a month and a half
11 after taking over these documents in Vienna. This
12 witness could not recognise a single document that he
13 analysed and that is why the court asked witness Navrat
14 to come here, who did the search and who said that --
15 and these premises had nothing to do with Zejnil Delalic
16 -- witness Navrat did not identify or mark any single
18 In addition to these reasons, I wish to express
19 that these are two pages of hand-written text; witnesses
20 Moerbauer and Navrat could not recognise the
21 handwriting, nor do we have any expert opinion as to the
22 handwriting. We do not know who wrote it. It has no
23 date. We do not know when it was written. The document
24 has two pages and there is no indication that it is
25 linked to Mr. Delalic.
1 Also, like the previous document, from the
2 standpoint of the indictment it is irrelevant for this
3 Tribunal as it makes no reference to Celebici, the
4 detainees there, nor to the responsibilities of my
5 client in connection with Celebici. We do not have an
6 indictment here against my clients and others that they
7 participated in the defence of their country and that
8 they engaged in certain activities to that end. That is
9 not in dispute. Therefore, the irrelevance and
10 unreliability of these documents are the grounds and the
11 basis of which I propose that they not be admitted into
13 Your Honours, may I add Generals testified here,
14 specially General Pasalic, who, as well as General
15 Divjak, who refer to various leaflets, documents and
16 reports that appeared in that period of time which were
17 forged and false, misinformation; therefore, documents
18 from that period whose reliability is questionable
19 cannot be admitted by this court.
20 JUDGE KARIBI-WHYTE: Thank you very much.
21 MR. NIEMANN: In relation, your Honours, to the question of
22 what it was that Officer Moerbauer in fact said, in the
23 transcript at page 3754 and 5 about this issue when he
24 was under cross-examination by Madam Residovic, she said
25 to him:
1 "Mr. Moerbauer, please, the documents that were
2 shown to you bear numbers that start with double zero
3 and then other numbers, as I read out to you. Is it
4 true that not one of these numbers was put there by you,
5 nor in your presence?" The witness answered:
6 "As far as I can recall, the stamps and number was
7 not put there by me, but I did recognise one document
8 with the original sticker that I had put on it. I saw
9 that yesterday. I think it was number 10."
10 Your Honour Judge Karibi-Whyte then said:
11 "Excuse me, apart from your not putting any of the
12 numbers which have been read out, did you put your own
13 identification marks on these, on those documents, which
14 makes you recognise them whenever you see them?"
15 The witness then answered as follows:
16 "No, talking with the Prosecution attorneys I had
17 learned that that was their own numbered system, that is
18 the Tribunal's numbered system, that were identifying
19 these documents. I had asked that my index be used. On
20 my index I put down what the Prosecutor's office was
21 using and the number was checked by me to see whether it
22 was consistent with the number that I had put on there
23 and then I checked with the analysis report. So for me
24 it is quite clear what document is involved."
25 There is no issue, your Honours, that he was
1 confused about it at all, no issue that he was not able
2 to identify it. The transcript and the evidence is very
3 clear. He knew exactly what he was doing. He was able
4 to identify them and he did.
5 MR. O'SULLIVAN: With all due respect, your Honours, there
6 has been absolutely no evidence to show that this
7 indexing system which Mr. Moerbauer apparently used at
8 the request of the Prosecutor, no evidence that was
9 brought before your Honours to show there is any
10 correlation between his numbering system in Vienna and
11 the apparently new one that was put on at the request of
12 the OTP. That has not been demonstrated at all. At the
13 bottom of that same page, 3755, I am sure my learned
14 friend would want to raise the question raised by your
15 Honour Karibi-Whyte:
16 "That was in your evidence, that initially you put
17 marks on them but these marks have been subsequently
19 Answer: the markings were subsequently removed,
20 that is right", which shows he cannot verify the
21 documents he was in court with here are the same ones he
22 analysed and marked in Vienna.
23 Again, there is reasonable doubt as to whether we
24 are dealing with authenticated documents. Those are my
25 submissions on that matter, your Honour.
1 MR. NIEMANN: It may be that the Defence were saying he could
2 not identify them. That may be their submission. In my
3 submission there is no question about what the witness
4 said he could do about the documents. The evidence is
5 clear, and he said he was able to identify the document
6 in relation to his report. The Defence may well argue
7 he could do it, but that is their argument, which flies
8 in the face of the evidence on which it stands.
9 JUDGE KARIBI-WHYTE: Thank you very much. I think we will
10 try to separate argument from conclusions, so if you
11 have any other things, do go on.
12 MR. NIEMANN: Your Honours, I take it that you are reserving
13 on the question of admissibility until you hear all the
15 JUDGE KARIBI-WHYTE: Yes.
16 MR. NIEMANN: The next document that I would wish to go
17 through if I may, your Honours, is Exhibit 123. Again,
18 your Honours, this document is a hand-written document
19 found on the premises of INDA-BAU. In relation to
20 Exhibit 123, when this document was shown to
21 Mr. Moerbauer, at page 3653, at lines 5 to 6 of the
22 transcript, he said in relation to it:
23 "This document was also in binder I4, handed to me
24 by my colleague, Navrat, following his search."
25 Your Honours, in our submission, this is again a
1 document of the same category of the documents that we
2 have been looking at, the same category of hand-written
3 documents that your Honours have been looking at over
4 the course of this afternoon. It is, it appears to be a
5 document in relation to the acquisition of military
6 equipment. There appears at the foot of the document a
7 list of material which is now shown on the screen, your
8 Honours, "two rocket launchers".
9 You may recall that in the evidence of General
10 Pasalic he gave evidence about -- he had looked at this
11 particular document and gave evidence about the fact
12 that this equipment is consistent with the equipment
13 which was required and was being acquired at the
14 relevant time, in the early part of the war in 1992.
15 Your Honours see that it is appears to be an order of
16 sorts. It is dated 9th May, 1992. It then provides
17 priorities, (1) "to procure equipment", and then gives a
18 description, "payable in Zagreb in accordance with
19 Sarajevo opinion", and then there is a reference to
20 Mr. Sabic. Your Honours, Mr. Sabic was referred to in the
21 previous document, document Exhibit 122. We have that
22 name appearing again. We also have the reference to
23 Zagreb in relation to the process of the acquisition of
24 material, and then it says in paragraph 4:
25 "Contact the balance of the contingent listed in
1 the specification, Sabic and Delalic, 7 days."
2 It is in a brief and abbreviated form, it is in
3 handwriting. In my submission that is entirely
4 consistent with what one would expect to find of a
5 document during this very turbulent period in the very
6 early days of the formation of the army of
7 Bosnia-Herzegovina, and a document consistent with what
8 one would expect to find of an army that was in the
9 process of developing itself and equipping itself.
10 It is also consistent, your Honours, with what we
11 know about the early role of the accused in the Konjic
12 area, when he set about the task with others, with his
13 colleagues, in the building of the army of
14 Bosnia-Herzegovina. I submit, your Honour, that all
15 these matters are clearly indicia of reliability.
16 The indicia of reliability is further reinforced
17 by the fact that it falls into a class of documents that
18 you have now seen, a class of documents relating to the
19 acquisition of equipment in those early days of 1992,
20 and I submit that it be tendered into evidence.
21 MS. RESIDOVIC: We are opposed to the admission of this
22 document into evidence because of its absolute
23 unreliability for the reasons I have already given.
24 Moerbauer did not recognise this document in court, nor
25 was it marked. Navrat, who apparently carried out the
1 seizure of the folders, did not mark them, nor did he
2 recognise any document except from the premises of
3 INDA-BAU in which more than 300 people are employed and
4 with which my client has no connection.
5 On the other hand, this is a document that bears
6 no signature, a document which under point 4 mentions,
7 as one of the persons given a task, Delalic, and the
8 Prosecutor suggests that the signatory could be
9 Mr. Delalic, which is quite illogical, that he should be
10 giving himself an assignment.
11 Further, this document is consistent with the
12 period of the war, because if there were no weapons
13 there would be no war. But it is absolutely
14 inconsistent with the indictment and it has no relevance
15 as it does not refer to Mr. Delalic's responsibilities,
16 nor to the prison and the prisoners in Celebici, which
17 are the subject of the indictment.
18 Due to all this, as well as the fact that in the
19 testimony of Moerbauer, Panzer and Navrat it was
20 established that some documents were lost, that some
21 green folders, et cetera, appeared. Therefore, the
22 unreliability of the document is evident and there is no
23 relevance and it has no relevance. Thank you.
24 MR. NIEMANN: Your Honours, I have no recollection of saying
25 that Mr. Delalic signed it. If I did say that I withdraw
1 it, because I certainly did not intend to suggest that
2 he signed it.
3 MR. NIEMANN: Your Honours, might I move now on to the next
4 document, Exhibit 124?
5 Your Honours, if we go to the very top of this
6 document we see that it is, perhaps I should -- first of
7 all I will describe the document. The document is in
8 typewritten form, but at the very bottom of the document
9 there is the word, the Bosnian word, I understand it is
10 the Bosnian word for "fire". Appearing immediately
11 underneath that is the signature of Zejnil Delalic --
12 your Honours, I should say the name Zejnil Delalic is
14 Your Honours, going back now to the front page of
15 the document, and towards the top of the right of the
16 top of the page there is a reference there to Tactical
17 Group 1. It is a document dated 8th December, 1992.
18 This is a period of time which, as we know by the
19 evidence, the accused had already left the area of
20 Konjic. It is headed "Report on the Konjic/Austria
21 trip". We know, your Honours, from the evidence and
22 documents that we have previously looked at, that the
23 accused went to Austria.
24 This document then as a report is addressed to,
25 "The Supreme Command armed forces of the Republic of
1 Bosnia-Herzegovina". It then says:
2 "First of all, I kindly request somebody at the HQ
3 to order my reports chronologically, starting from the
4 report 25th November, 1992."
5 We know, your Honours, why that date was a date of
6 some significance. I have already taken your Honours to
7 that. Your Honours have seen a reference to 25th
8 November, and the time 2000 hours is also, I believe,
9 referred to in -- I will just go to it. ... Yes, if
10 I might have on the screen document 144, at page 6, in
11 the middle of the screen, if I may, please. Your
12 Honours see there in the central paragraph:
13 "It is interesting that from March 1992 right up
14 until the 25th November 1992, 2000 hours"; reference to
15 that specific time, which your Honours now, going back
16 to the first page of Exhibit 124, if I could, please,
17 and that particular paragraph, your Honours heard from
18 General Pasalic when he gave his testimony he spoke of
19 the fact that the -- that he on that day, 25th November,
20 1992 was attending a meeting in Prozor in -- sorry, was
21 attending a meeting in relation to refugees from
22 Prozor. He said that these refugees were excited and
23 unhappy at the fact that they had not been adequately
24 defended at the time.
25 Your Honours see in this document Exhibit 124 a
1 reference to that. He says:
2 "I left my last report for uncle", whatever that
3 means, "in an envelope on the evening of 25th November
4 1992 at about 2000 hours during a meeting with refugees
5 from Prozor and the representatives of all the three
6 municipalities, also attended by the HVO, Croatian
7 Defence Council and A Pasalic. I had agreed with the
8 others not to attend the meeting in order to forestall
9 the allergy that the HVO was prone to develop when I was
10 around. We had organised the meeting because none of
11 the commissions had solved any problems in Prozor."
12 Your Honours also heard evidence of the growing
13 tension and in fact "aggression", as it was referred to
14 by General Pasalic, by the HVO at that particular period
15 of time, which is again consistent, in my submission,
16 with this document.
17 We go on, your Honours. In the next paragraph,
18 immediately following that, where it says:
19 "In the course of the day on 25 November 1992
20 I was warned that someone close to me would try to kill
22 Again, consistent with other documents we have
23 seen and again consistent with the evidence that we have
24 already seen:
25 "There had already been two previous attempts.
1 The man who brought the message was also seen by Hamad
2 Sabirdic and Sajic".
3 There is a reference further on to the sniper
4 bullets that "whizzed past" his head. Your Honours, in
5 the Exhibit 131, if I may go to that, and if that could
6 be shown on the screen, we see in this particular
7 document that your Honours now see again a reference to
8 leaving at about 8 pm on the 25th November.
9 MS. RESIDOVIC: I apologise, your Honours, for interrupting
10 my learned colleague, but if we are talking about the
11 document of the adventurist, my colleague just said that
12 not one of the documents from the alleged apartment of
13 Mr. Zejnil Delalic will be used before this court and he
14 is doing just that.
15 MR. NIEMANN: Your Honours, the document I have just referred
16 to is an INDA-BAU document. It was found at INDA-BAU,
17 it was not found at his premises at all.
18 JUDGE KARIBI-WHYTE: Actually, who is giving that evidence,
19 that it is from there?
20 MS. RESIDOVIC: I apologise to my learned colleague.
21 MR. NIEMANN: That was given by Moerbauer.
22 MS. RESIDOVIC: I apologise, that is the only document that
23 Moerbauer recognised; out of all the documents shown to
24 him, that is the only one he recognised.
25 JUDGE KARIBI-WHYTE: Thank you very much.
1 MR. NIEMANN: Your Honours, I am only halfway through this
2 document, it is a long document. I will go on for some
3 time. If your Honours were minded to adjourn now
4 I could easily pick it up again on Monday and continue
5 with it. I know I am only halfway through my
6 submissions on it. I will be taking quite a bit of time
7 with this document because it is a lengthy one.
8 JUDGE KARIBI-WHYTE: We will stop at this stage and continue
9 on Monday 3rd at 2.30 pm.
10 Yes, let me hear you.
11 MR. ACKERMAN: I am sorry I interrupted you, I did not intend
12 to. Your Honour, I think there has been more than a
13 usual amount of sniping back and forth between counsel
14 in this Chamber this week, and I am willing to accept my
15 fair share of responsibility for that, and to apologise
16 to the Chamber for that. I would hope that all of us
17 can try harder to operate in a spirit of collegiality
18 and not engage in that kind of activity, and I want to
19 say in the spirit of that collegiality I will volunteer
20 to spend at least a half a day of my time to assist
21 Mr. Niemann in learning now to pronounce Serbo-Croatian
22 names. Thank you.
23 MR. NIEMANN: I very much fear, your Honour, that I would
24 need a lot more time than that.
25 MR. MORAN: Your Honour, along that line I think we are all
1 getting a little tired and a little cranky, and I keep
2 remembering Judge Jan's promise to me that I would be
3 home by Christmas. I remember my own comment, Christmas
4 what year? With all of that I think I agree with
5 Mr. Ackerman that we are all getting tired and testy. If
6 I need to apologise, and I think I probably do for some
7 things, I do, and I do it in the genuine spirit of
8 friendship and professionalism.
9 MR. NIEMANN: We certain join, your Honour, in the desire to
10 achieve that collegiate relationship.
11 MS. RESIDOVIC: I agree with my colleagues in the wish that
12 we continue in a spirit of collegiality and to try to
13 assist the Trial Chamber, but regardless I will present
14 all the arguments in favour of my client, because that
15 also is part of our collegiate duty.
16 MR. GREAVES: Mr. Niemann's kind offer to buy all of us a
17 round of drinks is gratefully accepted.
18 JUDGE KARIBI-WHYTE: Thank you very much for your humour and
19 for all the kind wishes to the Trial Chamber. I happen
20 to be the common law judge and my position has always
21 been that of an impartial umpire. Wherever we are able
22 to assist I think we will do so and make sure that
23 everything goes smoothly in the interest of justice and
24 justice to all. Perhaps you might remember some time
25 when I said the attitude of every Prosecutor is justice
1 first, justice second and conviction a very bad third,
2 if that is all he really wants to, and that is the
3 attitude of the Trial Chamber in this cases. Thank
5 (5.35 pm)
6 (Adjourned until 2.30 pm
7 on Monday 3rd November 1997)