The International Criminal Tribunal for the Former Yugoslavia

Case No.IT-96-21

  1. 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

  2. 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

  3. 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

    16 evidence-in-chief.

    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

  4. 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.

  5. 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

    20 case.

    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.

  6. 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

    24 today.

    25 In addition, your Honours, we will be, in the

  7. 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

    10 week.

    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

  8. 1 literature and library work, and I graduated at that

    2 department.

    3 Q. And did you do post-graduate studies in political

    4 science?

    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

    9 Federation?

    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

  9. 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

    10 confused.

    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

  10. 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

    11 part.

    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.

  11. 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

  12. 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

  13. 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

    4 corps.

    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?

  14. 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

  15. 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

    24 Bosnia-Herzegovina?

    25 A. Yes. We have not one binder but several binders, maybe

  16. 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

  17. 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

  18. 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

  19. 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

    6 possession.

    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

    25 document?

  20. 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

  21. 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

    20 order.

    21 Q. What you are saying is not the originals but copies are

    22 used?

    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

  22. 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.

  23. 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

    9 notes?

    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

    13 notes.


    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

  24. 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?

  25. 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

  26. 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

  27. 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,

  28. 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

    17 witness?

    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.

  29. 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

    7 Bosnia-Herzegovina?

    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.

  30. 1 MR. NIEMANN: Mr. Omerkic, firstly you wanted to say

    2 something. What you would like to say about this

    3 document?

    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

    10 make.

    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

  31. 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.


    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,

  32. 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.

  33. 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.


    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

  34. 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

  35. 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

    24 Honours?

    25 JUDGE KARIBI-WHYTE: Exhibit 201 is admitted. I am not sure

  36. 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.

  37. 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

    11 oath.

    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

    21 tendered.

    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.

  38. 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,

    10 please?

    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

  39. 1 own.

    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.


    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,

  40. 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

  41. 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

  42. 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

    4 witness.

    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

    16 Delic?

    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

  43. 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

  44. 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

  45. 1 them.

    2 JUDGE KARIBI-WHYTE: I do not think so.

    3 JUDGE JAN: Any further cross-examination by any other

    4 counsel?

    5 MR. OLUJIC: Yes, your Honour, with your permission.

    6 Cross-examination by MR. OLUJIC

    7 MR. OLUJIC: May it please the court.


    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.

  46. 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

    11 law?

    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

  47. 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

  48. 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

    15 archives?

    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.

  49. 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

    14 --

    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

    22 assistance.

    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

  50. 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.

  51. 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

    11 officer?

    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

  52. 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

    6 folders.


    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

  53. 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

    23 now.

    24 JUDGE KARIBI-WHYTE: Nobody is arguing that. This is not an

    25 argument before us, that the contents of the folders

  54. 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

    9 relevance.

    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.

  55. 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

    7 reliability.

    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.

  56. 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

  57. 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

    23 other.

    24 JUDGE JAN: There is a danger in that, that is why the

    25 contents of the document have to be proved.

  58. 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

    15 relevance.

    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

    22 prove.

    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.

  59. 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

  60. 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

    9 situation.

    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

    24 case.

    25 JUDGE KARIBI-WHYTE: You can introduce it any time you wish

  61. 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

  62. 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

    17 Honour.

    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

  63. 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)









  64. 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

  65. 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.

  66. 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

  67. 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

  68. 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

  69. 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

  70. 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

    17 admitted.

    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.

  71. 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

    4 folder.

    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

    7 it.

    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

  72. 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.

  73. 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

  74. 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

  75. 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

  76. 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

  77. 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

    22 Vienna."

    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

  78. 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

  79. 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

    23 issue.

    24 MR. MORAN: That is correct.

    25 JUDGE KARIBI-WHYTE: Yes. And now you can go forward to

  80. 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.


    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.

  81. 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

  82. 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.

  83. 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

  84. 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

  85. 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

    16 headquarters."

    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,

  86. 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

    7 this.

    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

    24 me."

    25 Now, in my submission, your Honours, there has

  87. 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

    20 Igman."

    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

  88. 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

  89. 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

  90. 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

    12 that:

    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,

  91. 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

  92. 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

    10 nonsense.

    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

    18 helicopters".

    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:

  93. 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

  94. 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

    14 authenticity.

    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

  95. 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."

  96. 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.

  97. 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

  98. 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

    17 admitted.

    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

  99. 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

    10 said:

    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

    25 premises.

  100. 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

    21 document.

    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

  101. 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

  102. 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

    6 destination.

    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

    21 evidence.

    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,

  103. 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,

  104. 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

    22 Munich."

    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

  105. 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

  106. 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

  107. 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?

  108. 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

    24 180.

    25 MS. RESIDOVIC: Your Honours, of course we object, because

  109. 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

    9 Vienna.

    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

    20 headquarters."

    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,

  110. 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

    4 appear.

    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

    10 co-ordinator.

    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

  111. 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.


    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

  112. 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

    18 overturned.

    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

  113. 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

  114. 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

    23 issues.

    24 MR. GREAVES: Quite.

    25 JUDGE KARIBI-WHYTE: This is the point. I think that is all

  115. 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,

    10 please?

    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

    24 March".

    25 JUDGE JAN: He refers to his visit to Zagreb.

  116. 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

    11 says:

    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

    21 May?"

    22 The accused says: "The first half of May". The

    23 investigator then says: "What was the purpose of the

    24 interview?"

    25 He said:

  117. 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

  118. 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

  119. 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

  120. 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

    17 assertion.

    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

  121. 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

    10 out.

    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.

  122. 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

    16 Vienna."

    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

  123. 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

  124. 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

  125. 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

    19 headquarters."

    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

  126. 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

  127. 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

  128. 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

    17 document.

    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.

  129. 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

    12 evidence.

    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:

  130. 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

  131. 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

    18 removed.

    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.

  132. 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

    14 arguments?


    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

  133. 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

  134. 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

  135. 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

  136. 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

    13 written.

    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

  137. 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

  138. 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

    21 me."

    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.

  139. 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.

  140. 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

  141. 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

  142. 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

    4 you.

    5 (5.35 pm)

    6 (Adjourned until 2.30 pm

    7 on Monday 3rd November 1997)