The International Criminal Tribunal for the Former Yugoslavia

Case No.IT-96-21

  1. 1 Wednesday, 5th November 1997

    2 (10.00 am)

    3 JUDGE KARIBI-WHYTE: Good morning, ladies and gentlemen.

    4 Can we have the appearances now?

    5 MR. NIEMANN: If your Honours please, my name is Grant

    6 Niemann and I appear with my colleagues, Ms. McHenry,

    7 Mr. Turone and Mr. Khan for the Prosecution, if

    8 your Honours please.

    9 JUDGE KARIBI-WHYTE: Can we have the appearances for the

    10 Defence?

    11 MS. RESIDOVIC: Good morning, your Honours, I am Edina

    12 Residovic, Defence counsel for Mr. Zejnil Delalic, along

    13 with my colleague Eugene O'Sullivan, professor of law

    14 from Canada.

    15 MR. OLUJIC: Good morning, your Honours, I am Zeljko Olujic,

    16 Defence counsel for Mr. Zdravko Mucic, along with my

    17 colleague, Michael Greaves.

    18 MR. KARABDIC: Good morning, your Honours, I am Salih

    19 Karabdic, attorney from Sarajevo, Defence counsel for

    20 Mr. Hazim Delic, along with Mr. Tom Moran, attorney from

    21 Houston, Texas.

    22 MR. ACKERMAN: Good morning, your Honours, I am John

    23 Ackerman, I appear here on behalf of Mr. Esad Landzo,

    24 along with my co-counsel, Ms. Cynthia McMurrey. Thank

    25 you.

  2. 1 JUDGE KARIBI-WHYTE: Mr. Ackerman, what is the position now?

    2 MR. ACKERMAN: Your Honour, Mr. Landzo is here and we are

    3 ready to provided, of course. I think -- my

    4 understanding is that the Registry was preparing a memo

    5 about what happened that was supposed to be circulated

    6 to us all yesterday. I have not got it yet, maybe some

    7 of you have. That is all I know.

    8 JUDGE KARIBI-WHYTE: Actually we had to adjourn at your

    9 insistence because your client was not here and so we

    10 try to find out what happened. That is why I asked you

    11 what the position is, in case you might be able to

    12 help. I am satisfied he is here so we can carry on.

    13 MR. ACKERMAN: He is here and we are ready to proceed, your

    14 Honour.

    15 JUDGE KARIBI-WHYTE: Thank you.

    16 MR. NIEMANN: Your Honour, if I may continue with my

    17 submission in relation to documents that were seized by

    18 the Austrian authorities, your Honours, having regard to

    19 the time that has been lost this week and the need to

    20 move ahead with this, unless your Honours have any views

    21 as to the contrary, I think it may be more efficient if

    22 I proceed to deal with it as one submission, rather than

    23 breaking it at the end of each document. That would

    24 then enable counsel for the Defence to then respond by

    25 way of one submission, which I think may expedite the

  3. 1 proceedings.

    2 JUDGE KARIBI-WHYTE: Actually I have always thought from the

    3 beginning, if you are depending on the established

    4 indicia of admissibility, nothing stops you making a

    5 submission and then relating the documents you rely for

    6 such satisfaction of indicia and that should be

    7 sufficient and then the Defence can reply.

    8 MR. NIEMANN: Yes, your Honour. I will endeavour to proceed

    9 through the matter as quickly as possible. I think it

    10 is also necessary for me to make submissions as to

    11 relevance too at this stage.

    12 JUDGE KARIBI-WHYTE: It is satisfying admissibility. You

    13 have to show how these documents, whether taken together

    14 or individually, have satisfied these indicia of

    15 admissibility.

    16 MR. NIEMANN: The next document, Exhibit 126, might that be

    17 displayed on the screen, please? This document,

    18 your Honours, is a hand-written document, written in

    19 Bosnian, and signed at the end with the name "flame" or

    20 "oganj", which I have previously referred to in my

    21 submissions. It is a document in hand-written form

    22 addressed to the main staff of the supreme command of

    23 the armed forces of Bosnia-Herzegovina, and it is

    24 directed to be submitted to the chief of the main staff,

    25 and bears the date 27th April 1993.

  4. 1 When shown this document, Mr. Moerbauer, in his

    2 evidence at page 3653, lines 14 to 16, said of the

    3 document:

    4 "The document was also in binder I5 and was handed

    5 to me by my colleague, Navrat, at police headquarters in

    6 Vienna following the search."

    7 Your Honours, the structure of the document is in

    8 the nature of a report. Those matters, which we say go

    9 to the reliability of the document in terms of how they

    10 fit with other pieces of evidence that your Honours have

    11 heard, include what is referred to in the first

    12 paragraph at the top of the page of that document, where

    13 the second sentence starts:

    14 "Due to the fact that I knew them personally and

    15 the fact that the Croatian media wrote and reported that

    16 I had gone over to the Chetniks."

    17 Your Honours may recall in document 124, Exhibit

    18 124, the reference to this question of going over to the

    19 Chetniks or the Croatian media was also referred to in

    20 that document. Perhaps if we could quickly just go to

    21 that document, 124, the second page , and in the centre

    22 of that page under paragraph 3 there it is, the

    23 paragraph that commences:

    24 "According to some Croatian newspapers, I had

    25 flown in a helicopter", et cetera, et cetera.

  5. 1 Your Honours, now if we may go back, please, again

    2 to document 126, the first page, there is a reference

    3 there, your Honours, in paragraph 1, the first sentence:

    4 "During the conflict between the HVO and the army

    5 in Konjic, about 300 fully armed HVO members sided with

    6 the Chetniks in Borci."

    7 Your Honours, in our submission this is a

    8 reference to the well known dispute that had developed

    9 between the HVO and the army of Bosnia-Herzegovina

    10 during the course of 1992, which escalated to the point

    11 that there was in fact open conflict in the very latter

    12 part of 1992, continuing on through 1993.

    13 Your Honours, if we may go to document 130, on

    14 page 4 of that document, down the bottom of the page,

    15 starting with the paragraph (f), in this document,

    16 your Honours, which I will come to in due course, and it

    17 is a document which we say was written by the accused

    18 Mucic about Delalic, but I will deal with that later,

    19 paragraph (f) says:

    20 "Delalic insisted that we attack Borci a week

    21 after Bradina and that the entire municipality be

    22 cleansed. However, that could not be done because the

    23 HVO withdrew immediately after Bradina, unwilling to

    24 take part in that operation. This is when the first

    25 fierce clash between Konjic HVO, Konjic TO, with Zejnil

  6. 1 in the focus of attention."

    2 In my submission, your Honour, it picks up that

    3 theme of the difficulties that existed between the HVO

    4 and the army of Bosnia-Herzegovina, especially in

    5 relation to Konjic.

    6 Going back now to Exhibit 126, again on the first

    7 page, there is a reference then to events which are

    8 referred to especially in connection with the Neretva

    9 valley. The reference in paragraph 2:

    10 "The Konjic army command believes that only one

    11 HVO company from the villages of Turija and Bijela

    12 crossed over to the Chetnik sides, because they were no

    13 longer there. Nevertheless at night the main HVO forces

    14 crossed the lake by boat from right side of the Neretva

    15 and together with Croatian and Serbian inhabitants went

    16 via Celebici and dug in artillery", et cetera.

    17 Your Honours, in Exhibit 129, there is a

    18 reference, your Honours, to this incident -- I am having

    19 difficulty locating it just at the moment. Perhaps

    20 I might come back to that. I will just go on.

    21 Dealing with again this Exhibit 126, if we can go

    22 through to the third page of that document, there is a

    23 reference there to the need to announce in all media

    24 that Konjic and Jablanica, about 300 HVO officers had

    25 joined units in Borci and the necessity for that to be

  7. 1 made public. That, your Honours, the fact that these

    2 things were made public on a previous occasion, is also

    3 referred to in communications -- in these documents,

    4 particularly starting with Exhibit 129 at page 15, at

    5 the very top of the page . There is a reference there

    6 to an alleged agreement existing between the Croats and

    7 the Serbs in relation to the Neretva valley river, and

    8 the parts of it where they would agree to occupy. At

    9 the top of the page it says:

    10 "On the basis of intelligence and operational

    11 checks, it has been discovered that since the beginning

    12 of the war the HVO has been permanently working on the

    13 creation of its own HZ-HB state, to which the borders

    14 have already been decided. The border of Bradina on the

    15 right bank of the Neretva river, which has been decided

    16 at a meeting between Milosevic and Tudjman."

    17 Then, your Honours, going back to Exhibit 126 at

    18 that point that we were before, if we may, on page 3,

    19 there is in that paragraph, it is a long sentence, but

    20 starting:

    21 "The overall intention and plan mentioned that the

    22 rumours which spread a long time ago about the deal

    23 between Boban and Karadzic" -- your Honours may know

    24 also represent the interests of the Croats and Serbs

    25 respectively, but in this instance, the Croats and Serbs

  8. 1 of Bosnia-Herzegovina, rather than of Serbia and

    2 Croatia, on the partition of Herzegovina along the

    3 Neretva river is to materialise and so forth. So again,

    4 your Honours, we submit this is just one small reference

    5 to the issue, but again an important one.

    6 In terms of the relevance of the document,

    7 your Honours, it is more a document that goes to lend

    8 support to other documents by references in it, so it

    9 can be shown that the concepts and issues that have been

    10 stated have been repeated in other documents, lending,

    11 in our submission, to the argument of its consistency

    12 and therefore reliability, but the document does have

    13 relevance additional to that as well.

    14 Your Honours, on page 5, and if we could go to the

    15 top of page 5 of the document --

    16 JUDGE KARIBI-WHYTE: Mr. Niemann, remember when you started

    17 I wanted to find out actually what these documents are

    18 intended to be tendered for. Can you kindly remind us

    19 what the real purpose of tendering all these documents

    20 is, so that we will know exactly how, even if remotely,

    21 you concern some of these documents, because if you

    22 consider that anywhere where reference has been made to

    23 these conflicts might be referred to as relevant to the

    24 issue, you should let us know exactly what it is

    25 tendered for.

  9. 1 MR. NIEMANN: Yes, your Honour. Your Honours, this

    2 particular document that I am dealing with has a twofold

    3 purpose. One is that it contains within it material

    4 which we say is of itself directly relevant, but I was

    5 just stating that it goes more to being part of the

    6 pattern of evidence. In our submission, a document

    7 found on the premises, which goes to a pattern and fits

    8 in with other documents, has a relevance on that basis,

    9 because it lends support to establishing the

    10 authenticity and reliability of other documents which

    11 perhaps are of greater relevance and importance to the

    12 proceedings. But this document itself has its own, in

    13 our submission, relevance, and I will go to that

    14 immediately.

    15 JUDGE KARIBI-WHYTE: Perhaps I have not made myself

    16 understood. What is the purpose of tendering them?

    17 There must be a reason, either to identify particular

    18 persons for what they have done in relation to the Trial

    19 or their indictment before the Trial Chamber. We have

    20 heard they are all participating in the war effort. You

    21 now tender them for particular purposes. These are the

    22 purposes one would like to understand, so that we can

    23 see their relevance to those purposes.

    24 MR. NIEMANN: I thought I explained that, your Honour, but

    25 I will explain it again. That has a twofold purpose.

  10. 1 Perhaps I will explain the second purpose before the

    2 first one, which may make it perhaps a little easier --

    3 JUDGE KARIBI-WHYTE: Not only this document, the series of

    4 documents, so if we know why they are being tendered,

    5 and you formulate the reason why they are being

    6 tendered, they are tendered to show 1, 2, 3, something

    7 like that, then we will know.

    8 MR. NIEMANN: Your Honours, overall, as a general

    9 proposition, they go to establish the command

    10 responsibility of the accused Delalic; to a lesser

    11 extent the responsibilities of the accused Mucic, and in

    12 particular with reference to the Celebici camp. But

    13 this is a complex issue, it is not something that can

    14 be -- I cannot simply give you one document or produce

    15 one witness that can do that. It is a complex and

    16 difficult process, but it is a combination of documents

    17 which we submit at the end of the day go to establish

    18 that point and clearly do, but cannot be done in

    19 isolation. It has to be considered in combination.

    20 JUDGE KARIBI-WHYTE: I seem to agree with you, not being a

    21 party to the dispute myself, it should be clearly

    22 brought out what you are pursuing. If it is command

    23 responsibility, the command structure and the way each

    24 one fits into any particular pattern, I think that is

    25 your responsibility, and the relevance of the documents

  11. 1 to such a proposition, this is what perhaps I would like

    2 to see.

    3 JUDGE JAN: May I add, you have led evidence to show that he

    4 was a co-ordinator to begin with, then commander of

    5 Tactical Group 1. He was interested in military

    6 affairs. All these documents merely show his interest

    7 in defending his country, nothing more than that. How

    8 does it really fit in with this commander structure, as

    9 my learned brother has pointed out to you?

    10 MR. NIEMANN: With respect, your Honour, I think they go

    11 further than that. If I may, I would like to

    12 demonstrate how much further they go than that.

    13 JUDGE KARIBI-WHYTE: I appreciate that. I know you are

    14 still continuing, you may still conclude, but by the

    15 time you have, the picture might be obvious where this

    16 command structure lies, which therefore indicates his

    17 responsibility for what he has been accused of. This is

    18 what I thought you were pursuing.

    19 MR. NIEMANN: Yes, your Honour. Your Honours, to deal with

    20 that issue straight away, one of the questions is the

    21 connection between the accused Delalic and the prisoners

    22 themselves, and the military significance, or an

    23 explanation of the military significance, of why it is

    24 that prisoners would be taken and placed in Celebici,

    25 and if they were taken and placed in Celebici camp, for

  12. 1 what purpose that was done, and if it is in relation to

    2 the military strategy of the accused Delalic this would

    3 do that, and in our submission that is one indicia of

    4 his responsibility towards those people that are placed

    5 in the camp. So if the Prosecution can show that even

    6 though he was not there at the camp on a day-to-day

    7 basis, part of his role was to -- was, as leading the

    8 military, the battle, so to speak, was taking prisoners,

    9 and then he was directly responsible for having those

    10 prisoners interned in the camp, then there is a command

    11 responsibility to those people who he interns.

    12 JUDGE KARIBI-WHYTE: In fact this is one of the problems

    13 I have too. I do not remember every hearing anybody,

    14 including the prisoners, as being under Tactical Group 1

    15 of which he is commander.

    16 MR. NIEMANN: They were captured by that Group, is that what

    17 your Honour is saying?

    18 JUDGE JAN: No, not captured by them. The group was formed

    19 on 11th July. He took over as commander of the Tactical

    20 Group on 11th July. I do not think any prisoners

    21 entered that camp after 11th July.

    22 MR. NIEMANN: No, your Honours, and certainly it will be the

    23 method of military operation which we again say would be

    24 illustrated by these documents that would go to that

    25 matter.

  13. 1 JUDGE JAN: These documents you are producing show he is

    2 interested in affairs, he knows what is happening,

    3 nothing more than that. They do not establish command

    4 responsibility, these documents.

    5 MR. NIEMANN: With respect, your Honour, I do believe they do

    6 go further.

    7 JUDGE KARIBI-WHYTE: This is why I normally give you a free

    8 hand to put forward these arguments, and finally we look

    9 into it and see whether they meet the requirements of

    10 the law.

    11 MR. NIEMANN: I have two obligations. Relevance is one

    12 thing. I could go through and make my submissions on

    13 relevance and then be confronted with the submission

    14 from the Defence, "They are not reliable, you cannot

    15 rely on them even if they are relevant", so I do have

    16 the dual responsibility to meet; other than we break up

    17 the submission into two parts, which I do not mind

    18 doing, establishing relevance first and then coming back

    19 and dealing with reliability and whether or not they

    20 should be admitted. But the process of establishing the

    21 authenticity and reliability is a complex and difficult

    22 process, an intricate process. I am happy to do it that

    23 way, if your Honours would just wish me to deal with

    24 relevance, I am happy to do that. If you wish me to go

    25 through and deal with relevance, I am happy to do that

  14. 1 and come back and meet the submissions.

    2 JUDGE KARIBI-WHYTE: We have heard your arguments that these

    3 are related to the whole exercise; all stories related

    4 to the exercise of the war effort and the participation

    5 of Delalic, Mucic, all of them, and reports by other

    6 members of the same outfit as to what happened, which

    7 involves Delalic, Mucic and all of them. I suppose one

    8 can say intrinsically that can be relevant, but that

    9 does not help one if you are looking for the real

    10 responsibility for the area in which they are charged,

    11 which is a different consideration.

    12 MR. NIEMANN: Your Honours, one of the issues that I say this

    13 document goes to is why were the prisoners captured?

    14 Why were they put in the camp? The answer to that is:

    15 they wanted to use them for exchange. They wanted to do

    16 two things: they wanted to reduce the number of

    17 available manpower to the opposing forces, the Serbs.

    18 JUDGE KARIBI-WHYTE: Yes, but who wanted to do that?

    19 MR. NIEMANN: And the second reason was they wanted to use

    20 them for the purposes of exchange, so they could get

    21 back their own men.

    22 JUDGE KARIBI-WHYTE: Who wanted to do that?

    23 MR. NIEMANN: Delalic.

    24 JUDGE JAN: Inferences.

    25 MR. NIEMANN: The world is made of inferences, your Honour.

  15. 1 In my submission, this document does show that there is

    2 a pattern of approach, a pattern of approach which was

    3 still valid and consistent in 1993 when this report was

    4 written, we say, by the accused Delalic using his code

    5 name, and the document that is presently shown on the

    6 screen, at the top of the page, in our submission goes

    7 to that. It is a reference to future operation, but

    8 nevertheless the military procedure is consistent with

    9 what happened in 1992, where it says:

    10 "Here it is necessary to completely crush the HVO

    11 forces, capture their ammunition and all their members

    12 for exchange."

    13 JUDGE JAN: HVO.

    14 MR. NIEMANN: Of course. I am saying this is -- why should

    15 the processes be any different when dealing with a

    16 military action against the HVO than if you are dealing

    17 with a military action against the Chetniks? In my

    18 submission, your Honours, there is consistence.

    19 JUDGE JAN: He is speaking of the perfidy of the HVO in this

    20 letter, mostly.

    21 MR. NIEMANN: Yes, but in my submission, your Honours, it is

    22 illustrative of a person who has a particular approach

    23 to military activity, and one which there is evidence of

    24 in 1992; namely the capturing of ammunition and members

    25 of the opposition, and then ultimately using them for

  16. 1 the purposes of exchange, and that is set out in this

    2 document that is on your screen now.

    3 There is, your Honours, finally, a reference at

    4 the bottom to firstly, this is going over the final

    5 page, and if we may go to the final page, at the bottom

    6 of the page, a reference there to firstly:

    7 "Many regards to everybody, especially to Divjak",

    8 and your Honours have heard that Divjak was there during

    9 the period 1992, there with the accused Delalic, and

    10 again it is signed with this code name, "oganj", or

    11 "flame".

    12 Just in relation to that, the video Exhibit 116,

    13 there is an excerpt of that video in the transcript of

    14 the video at a particular scene in Borci on 28th June

    15 1992, and there is a very small segment and it shows the

    16 accused Delalic making a radio telephone communication,

    17 and it shows the accused there and one can hear the

    18 telephone conversation from the accused's end, and it

    19 says:

    20 "002, do you hear me? Oganj calling."

    21 Then there is a voice from the other end and

    22 Delalic says:

    23 "Okay, Bijela coast, let us go."

    24 There is again conversation coming back from the

    25 other side and then he said -- the accused says:

  17. 1 "002 switch off, Dido, do you hear Oganj 1

    2 calling?"

    3 In my submission, that is in itself direct

    4 evidence that this is a term that was used by the

    5 accused in relation to, as it were, a military code

    6 name.

    7 Your Honours also saw it in Exhibit 124 at the

    8 final, last page of Exhibit 124 on the signature page,

    9 which is page 3, and perhaps just to refresh

    10 your Honours' minds again, the very bottom of the

    11 page we can see:

    12 "Greetings to the homeland, Oganj", and signed by

    13 Zejnil Delalic.

    14 So those, your Honours, are my submissions in

    15 relation to that particular document.

    16 We can now go to the next document, document 127.

    17 Could that be displayed on the screen, please?

    18 MS. RESIDOVIC: May I?

    19 JUDGE KARIBI-WHYTE: Yes, you may.

    20 MS. RESIDOVIC: May I comment on this document, please?


    22 MS. RESIDOVIC: Mr. Delalic's Defence is opposed to the

    23 admission of the document number 126 for the reasons

    24 mentioned before, because the Prosecution has not proved

    25 the authenticity or the relevance of the document they

  18. 1 have tendered.

    2 I am not going to belabour the arguments that have

    3 already been mentioned regarding the reliability of this

    4 document, I am just going to repeat what I have stated

    5 before to this Trial Chamber. When this document is

    6 shown, I would like to request that it is shown in the

    7 original, so that we see the handwriting. We do not

    8 know when and by whom this document was compiled. We

    9 just see an English translation, which may leave a

    10 certain impression. I think that it will not leave the

    11 impression with the Trial Chamber, but it could

    12 somewhere, and this would be a distorted picture of what

    13 the document is.

    14 This document was hand-written, it is a document

    15 that allegedly was written in late April 1993, which is

    16 outside of the time-frame in the indictment. This is a

    17 document that allegedly, the way the Prosecution showed

    18 it, may have been drafted in Czechoslovakia. This is a

    19 document that never mentions Mr. Zejnil Delalic. This is

    20 a document that never mentions any command

    21 responsibility of anyone, including Mr. Delalic. It is

    22 talking about a time and relationship which have nothing

    23 to do with the subject of this indictment.

    24 Therefore, the reliability of this document is

    25 equally zero and the Prosecution is resorting to the

  19. 1 same method; they are comparing other documents with

    2 this document, which has not been authenticated or shown

    3 to be relevant, and weaving a story about Mr. Delalic and

    4 his alleged command responsibility, which is contrary to

    5 anything that has been shown before this Trial Chamber.

    6 Therefore, your Honours, with respect to this

    7 document, the Prosecution points to the signature of

    8 "Oganj", which is supposedly a military code, and

    9 relates it to document 124. If this is a military code,

    10 as in document 124, that is already a method, secretive

    11 method, and they will not resort to it again in order to

    12 reveal their true name.

    13 We had expert testimonies by the Generals and the

    14 Trial Chamber has found out a number of facts regarding

    15 the Boracko Jezero military operations and they have

    16 nothing to do with the alleged proof that is offered

    17 through the documents here.

    18 So to repeat, this document has nothing to do with

    19 1992, with the prison in Celebici, with the prisoners in

    20 the prison Celebici with Zejnil Delalic or with his

    21 command responsibility, so one more time, I plead with

    22 you, your Honours, given the absolutely unreliability of

    23 this document, we do not know who wrote it, I would like

    24 to take note of Rule 95, which speaks of the

    25 unreliability and if there is any doubt, as there is

  20. 1 doubt in this, in the veracity of this document, I move

    2 to not accept it.

    3 MR. NIEMANN: Your Honours, might I just, before you respond

    4 to that -- I had suggested that the more efficient way

    5 to deal with this would be for me to make one submission

    6 and then for counsel to then respond in a global fashion

    7 in the way that I would make my submission. I suggested

    8 that, your Honours, because I believed that it would be

    9 more efficient. The reason why I submit it is more

    10 efficient is that most of the submissions made in

    11 relation to individual documents are mere repetition of

    12 what has been said before. If your Honours wish to

    13 proceed that way, that is fine by me, but it will make

    14 the proceedings much more laborious and much lengthier

    15 when the general submission that can be made about

    16 failure to prove who wrote it, or whatever, is something

    17 that could be said presumably in relation to a number of

    18 them, and those -- it seems to me that this is a mere

    19 waste of time to have to deal with them document by

    20 document.

    21 I would urge your Honours to permit me to deal

    22 with it as one submission and then hear counsel, but if

    23 counsel -- if we are going to deal with it on a document

    24 by document basis, I have to indicate that it will take

    25 much longer than today and tomorrow and we will

  21. 1 presumably have to adjourn it over until the next

    2 sittings to complete the process.

    3 JUDGE KARIBI-WHYTE: Thank you very much, Mr. Niemann.

    4 Actually this was my error, because when you made that

    5 request, I agreed, I consented that perhaps the better

    6 thing was to make the submissions for admission of all

    7 the documents as a whole, and then the Defence can then

    8 reply, taking each of them the way they consider them

    9 inadmissible. I think that is the shorter method, and

    10 seeing them as a whole makes things easier for both the

    11 Prosecution and the Defence and I hope we will keep to

    12 that now.

    13 MR. NIEMANN: Now moving on, your Honour, to document 127,

    14 this document, your Honours, is a document which is in

    15 typewritten form. It bears a seal at the bottom of the

    16 document, and it also is a document that is stated or

    17 says to be signed by the co-ordinator, Zejnil Delalic,

    18 and then signed for the commander of the TO, Omer Boric

    19 and for the HVO commander, Dinko Zebic.

    20 Your Honours, the relevance of this document so

    21 far as the Prosecution is concerned are these: it is a

    22 document which expresses itself as an order. It is

    23 dated in Konjic, 3rd June 1992, and it relates to an

    24 order to open the railway to railway traffic from

    25 Jablanica, Konjic and Pazaric. We say it is relevant,

  22. 1 your Honours, because it expressly deals with the area

    2 of operation the accused Delalic was involved in, but it

    3 also goes to the question of the accused's participation

    4 in the command process, as such. At this very early

    5 stage, 3rd June, there are three people involved in the

    6 issue of this command.

    7 It also, in our submission, is relevant because it

    8 goes to the broader question of the accused's authority

    9 to participate in this command process. Your Honours

    10 had seen in document 124, and I do not need to take

    11 your Honours to that, but document 124, this area,

    12 Jablanica, Konjic and Pazaric, is an area which the

    13 accused was involved in the Konjic area in terms of his

    14 areas of responsibility, even at that early stage.

    15 In the video, Exhibit 116, which I will take

    16 your Honours to subsequently, there is also,

    17 your Honours, a reference to this. There is a scene

    18 with an interviewer and Mr. Delalic, and the interviewer

    19 asks the question at the 0.42.02 minutes on the video,

    20 the interviewer asks the question:

    21 "Although you are not with us on the train, were

    22 you excited while you were waiting for it to arrive here

    23 in Jablanica."

    24 Zejnil Delalic answers:

    25 "Of course. As one of the organisers of this

  23. 1 project, I can say I am very satisfied. Especially

    2 I have to give credit to the people working on the

    3 railway, who have taken this task very seriously. They

    4 have done everything, although the conditions were very

    5 difficult, everything was done on time, even better than

    6 in peacetime."

    7 Those are the words of the accused himself and in

    8 our submission directly relate to this particular order.

    9 Your Honours, in Exhibit 130, on page 4 of that

    10 exhibit, if we may just quickly go to that, down the

    11 bottom there is a paragraph (e) and if that could be

    12 enlarged. In this it says:

    13 "Five days later and quite on his own, he

    14 organised the first rail transport along the Jablanica,

    15 Konjic, Pazaric line with free tickets for everybody."

    16 In our submission, this is a document that was

    17 written by the accused Mucic and in our submission

    18 relates to this particular exhibit. We submit it is

    19 relevant and admissible on that basis.

    20 Moving to the next document, your Honours, Exhibit

    21 128, if that could please be displayed on the screen?

    22 MS. RESIDOVIC: Your Honours, may I make a specific

    23 objection with regard to the previous document?

    24 JUDGE KARIBI-WHYTE: I suppose we would like to keep to the

    25 procedure we would like to adopt. It has not been

  24. 1 admitted. All the admission will be determined after

    2 you have made your own contribution. We note your

    3 objection, that you object to all that has been

    4 tendered, so when you make your contribution you can

    5 raise all the points.

    6 MR. NIEMANN: Your Honours, this document, document 128, is

    7 again one of the documents that form part of the

    8 military prosecutor's documents that were referred to --

    9 was referred to particularly by General Pasalic in his

    10 evidence, and indeed go to some of the specific

    11 documents that were looked at and indeed admitted and

    12 accepted into evidence through the witness Pasalic.

    13 Again, your Honours, the only aspect of this document

    14 for which we say it is relevant is the reference to the

    15 accused Delalic and Mucic in particular, and in

    16 particular, reference to their positions.

    17 Firstly, in the centre of the page, we say it is

    18 relevant that there is a reference there in the

    19 paragraph numbered 1 to the fact that Zejnil Delalic is

    20 described by the military commander -- sorry, the

    21 military prosecutor as:

    22 "A serviceman commander of the first Tactical

    23 Group based in Konjic."

    24 Then there is a reference to the second defendant,

    25 Zdravko Mucic:

  25. 1 "Serviceman commander of the military prison in

    2 Celebici."

    3 This document also makes reference to other

    4 accused before the court. There is a reference three

    5 lines from the very bottom of that page to the deputy,

    6 Hazim Delic, and also there is a reference further on to

    7 a prison guard, there is a reference to Osman Dedic and

    8 then Esad Landzo. I know that the spelling of Landzo in

    9 at least my copy of the translation appears to be

    10 wrong. Whether in the original it is spelt wrong,

    11 I cannot say, but I know over the page in relation to

    12 that, if we could go to the second page, please, in the

    13 paragraph numbered 2, if we could just highlight that,

    14 if there was a spelling error of the name Landzo, it

    15 seems to have been corrected there.

    16 Your Honours, there is another aspect of this

    17 document which we say is relevant, and it relates to

    18 the -- under the heading "statement of reason", that

    19 very first paragraph, if we could see the whole of that

    20 paragraph, the relevant part is starting in the middle

    21 of the first sentence:

    22 "Criminal charges brought by the command of the

    23 4th Army Corps of the army of RBH, reference number

    24 POV05-149/92, dated 22nd December 1992."

    25 Your Honours, Exhibit 137, if that can be

  26. 1 displayed on the screen, was the document that was

    2 admitted into evidence by the witness Pasalic. It is

    3 signed by him, it has been accepted into evidence and it

    4 relates in our submission to Exhibit 128 directly, and

    5 if we could quickly move to Exhibit 141, at the very top

    6 of the page of Exhibit 141, your Honours see on the

    7 left-hand side, right at the very top, that number that

    8 I just referred you to in Exhibit 128, the number

    9 POV05/149-92, 22nd December 1992 in Mostar.

    10 In our submission, your Honours, these two

    11 documents are related to each other, they deal with that

    12 one topic. The Prosecution emphasises it is not seeking

    13 to tender them for any other purpose than to show

    14 command responsibility and we submit that this document

    15 is a document that is on its face an authentic document

    16 by reference to its contents and to other documents.

    17 Again, it is a document that should be admitted into

    18 evidence.

    19 If I can move on to the next document, document

    20 129, document 129 is again one of the documents in the

    21 series of documents relating to the investigations that

    22 were carried out in which certain persons in the area,

    23 including the accused Delalic, was said to be involved,

    24 but ultimately exonerated entirely, but it related to an

    25 incident that occurred in a place called Repovci. This

  27. 1 is an analytical document. With this document,

    2 your Honours, I have not volunteered to extract the

    3 parts which we are not relying on, on the basis that

    4 I do believe, your Honours, you are not a jury, you are

    5 trained and that you are able, quite satisfactorily, to

    6 disregard all those parts of it which are not relied

    7 upon by the Prosecution or the Defence, and that it

    8 should not be necessary to go to that end, but if it is

    9 at the end of the day considered that in relation

    10 particularly to this document whether that is the course

    11 that should be admitted, I am prepared to undertake to

    12 do that, but I would submit, your Honours, that it is

    13 hardly necessary.

    14 We do submit that the document is very instructive

    15 of the role that was being played by the accused Zejnil

    16 Delalic at the relevant times mentioned in the document

    17 and indeed in the early periods, and in relation to

    18 that, we believe, your Honour, that this document is

    19 therefore relevant and admissible.

    20 The first page of the document, at the very top,

    21 merely puts it in context, the report is written about

    22 the period 12th July, it relates to an incident that

    23 happened at Repovci/Bradina road at a place called

    24 Savina Poda. It says, "A BH army military patrol was

    25 ambushed by persons unknown". It says:

  28. 1 "Zejnil Delalic, army co-ordinator Konjic area,

    2 had ordered them to detain Sefik Ajanovic."

    3 By way of explanation and why we say this is

    4 relevant is that in our submission this document deals

    5 with an incident where certain police officers were

    6 ambushed on the road and killed. It is a document that

    7 analyses this incident. The persons, the police

    8 officers were there because of an order issued by the

    9 accused Zejnil Delalic. We are not suggesting we would

    10 in any way ask your Honours to infer anything by that,

    11 other than that he gave an order for this to happen.

    12 From a detailed reading of the document, the background

    13 is simply that there had been difficulty with certain

    14 members of the military to comply with orders, so the

    15 accused Delalic orders their arrest. The police

    16 contingent that goes up to effect that arrest were

    17 killed and that is what the nature of this report is.

    18 I only say that by way of background, so it can be

    19 understood in connection with that.

    20 What had also happened is because of the

    21 difficulties with the people failing to comply with the

    22 orders that were being issued, there is a process set in

    23 train in order for a new command to take over of that

    24 particular military group, and the reason why we seek to

    25 tender it is because it shows the role of the accused,

  29. 1 Zejnil Delalic, in the establishment of that new

    2 command.

    3 If we could go to page 4 of the document, the

    4 second paragraph -- so, your Honours, we have reached

    5 the point where there was a necessity for a new command

    6 to be established. This paragraph here deals with that

    7 issue. It speaks of -- they also ask for another unit

    8 to be set up with personnel not engaged at the Bradina

    9 checkpoint and, if possible, people from the Konjic

    10 headquarters of the TO to come and discuss the

    11 problems. There was a meeting and it was concluded a

    12 new unit should be formed. It goes on:

    13 "The minutes from the meeting were taken by Demal

    14 Ferhatbegovic and Sefik Ajanovic on 10th July 1992 to

    15 the command building, the house of Zejnil Delalic, and

    16 they demanded that the minutes be sent on to Zvekusa

    17 village where Zejnil Delalic was with his staff at the

    18 time, because of combat operations against Chetniks

    19 et cetera et cetera in the Glabaticevo and Borci village

    20 area. On the same day Alija Avdibegovic and Azim

    21 Manduka came to the aforementioned command building,

    22 with a written appeal to Zejnil Delalic giving their

    23 view of the problem."

    24 We go to this because again we submit it points to

    25 his role in the area and the extent of his role in the

  30. 1 area.

    2 The next paragraph on that page 4:

    3 "On 11th July 1992 at Mount Zvekusa", they went to

    4 see Zejnil Delalic. The same day the TO military police

    5 received the order from Delalic to carry out this arrest

    6 that I spoke of. Then significantly, we say,

    7 your Honours, it goes on:

    8 "... and detain them in Celebici prison for

    9 obstructing the work of the detachment. The military

    10 police were unable to carry out the order."

    11 Then the next paragraph:

    12 "At the very beginning of the war, in May 1992,

    13 the HVO and the TO forces took a building on Mount

    14 Zlatar, equipped with the most sophisticated

    15 communication systems."

    16 The taking of this building is something that is

    17 referred to again in this document. Then there is a

    18 reference, your Honours, in the final paragraph on that

    19 page:

    20 "From the beginning of the war until the events on

    21 the Repovci/Bradina road, the Konjic armed forces had

    22 had several successful operations (the take-over of the

    23 Celebici and Ljuta barracks)..."

    24 Your Honour Judge Jan once asked me what was the

    25 significance of Ljuta barracks and here is a reference

  31. 1 to it:

    2 "... the active combat operations in the eastern

    3 part of the municipality). At the time, the War

    4 Presidency was acting as the organ of the civilian

    5 authority led by Dr Rusmir Hadzihuseinovic and Jasmin

    6 Guska, who was the chief of the Konjic SJB public

    7 security section. The Konjic TO HQ was headed by Esad

    8 Ramic, while the key figure was Zejnil Delalic as the

    9 ARBH co-ordinator."

    10 Again, your Honours, in our submission this goes

    11 to that question of the role that he played. It is the

    12 reference to the fact that the key figure, illustrated

    13 by the previous document with the railway, shows in our

    14 submission that he played a significant role of

    15 co-ordinator and was not just the role of having no

    16 command as such. Again, that is the reason why we say

    17 it is a relevant document.

    18 Over the page, on page 5 of this document, the

    19 very last sentence of the first paragraph, again a

    20 reference to the deterioration of relations between the

    21 HVO and Zejnil Delalic. It says:

    22 "A few days before the events in Repovci, he

    23 ordered a broadcast to be aired on Konjic Radio,

    24 claiming that a criminal report was to be filed against

    25 the HVO and against its leadership because of their

  32. 1 obstructive behaviour in looting."

    2 I refer to this, your Honours, because

    3 your Honours will recall in document 126 that we looked

    4 at earlier, there was a document in 1993 and the

    5 question is, what of its relevance? In my submission,

    6 there is again a reference to broadcasting publicly the

    7 failure of the HVO to co-operate and to make it known to

    8 the public. This is a similar theme, in our submission,

    9 and one which obviously occurred right back at this

    10 early period and again was a theme that was suggested as

    11 an approach which we would say was suggested by the

    12 accused Delalic in dealing with this dispute with the

    13 HVO.

    14 Then again a reference to it in the next

    15 paragraph that follows that second sentence:

    16 "On 11th July 1992, the situation led to Zejnil

    17 Delalic ordering Konjic Radio to broadcast the

    18 information that members of the Konjic SJB were not

    19 taking part in combat operations but were involved in

    20 criminal activities."

    21 This in our submission is a relevant

    22 consideration. We have videos of the accused appearing

    23 on television in Croatia, again explaining the events

    24 that are happening, and so, your Honours, we say there

    25 is a thread there, a link there that shows that this is

  33. 1 part of the approach taken by the accused in dealing

    2 with the events that were emerging in the area. We are

    3 not suggesting anything sinister at all by it, it is a

    4 perfectly appropriate legitimate approach, but all we

    5 are saying is there is a consistency which lends support

    6 to the reliability of this material.

    7 Again, on the same page, third paragraph from the

    8 bottom, there is a reference to the same question that

    9 was dealt with in Exhibit 126, that is the 1993, the

    10 April 1993 document, in our submission, where it says:

    11 "Operational data from that time indicated that

    12 there was an accord between the HVO forces and the

    13 Chetniks on the division of the Neretva valley, on the

    14 left bank Chetnik side, on the right bank Croatia side.

    15 This claim was corroborated by the HVO actions which led

    16 to the destruction of the bridges across the Neretva

    17 river and by the absence of their forces in the

    18 continuing combat actions against the Chetniks."

    19 Your Honours saw that expressed as alternatively

    20 an agreement between Boban and Karadzic or Tudjman and

    21 Milosevic. In our submission, your Honour, it is the

    22 same consistent thing that one sees time and time again.

    23 There is again on page 9, and I will not labour

    24 the issue again, other than to simply say that on page 9

    25 of this particular document there is a reference to the

  34. 1 characters that played significant roles in these events

    2 at those relevant times, the accused Zejnil Delalic,

    3 Jasmin Guska, the chief of the Konjic SJB and the

    4 President of the War Presidency, Dr Rusmir

    5 Hadzihuseinovic.

    6 Finally, perhaps I should refer to the final page,

    7 page 15, where at the very top of the page, the

    8 reference to the agreement between the Croatians and the

    9 Serbs is referred to as an agreement by Milosevic and

    10 Tudjman.

    11 On those bases, your Honours, and having regard to

    12 the relevance of that document, it is our submission

    13 that this is a document that should also be admitted

    14 into evidence.

    15 Now if we may move on to the next document,

    16 document 130. Your Honour, document 130 is a

    17 typewritten document, and we submit that this document

    18 was written by the accused Mucic. We say that and if we

    19 can go immediately to it, we say that firstly because of

    20 the nature of the way it has been signed at the very end

    21 of the document. This is a document that was taken --

    22 care was taken with this document to verify its

    23 authenticity by the person that signed it. It was taken

    24 to the Consulate and before a consul of

    25 Bosnia-Herzegovina, the indictment was signed in Vienna

  35. 1 by the accused Mucic in person, as it is attested

    2 there. On the original version of the document that was

    3 seized at the premises, there appears the stamp of the

    4 consul.

    5 There is also a reference there that your Honours

    6 can see to the passport that was issued by the public

    7 security station in Konjic on 7/12/1990.

    8 It is a very important document, your Honours, it

    9 is a document -- from the point of view of the

    10 Prosecution. It is a document that was addressed to the

    11 commander of the 4th Corps staff Mostar. I should,

    12 sorry, withdraw that, to the 4th Corps staff Mostar,

    13 municipal defence staff in Konjic. It is headed,

    14 "military secret, highly confidential", and it is a

    15 report.

    16 Your Honours, this document is a detailed report

    17 of the incidents that occurred during the year 1992 in

    18 the area of Konjic. It describes the roles played in

    19 various of the activities by the accused Mucic and by

    20 the accused Delalic. It is a document which from its

    21 reading presents itself as a memorandum designed, in our

    22 submission, to distance the accused Mucic from certain

    23 events that were being alleged against him at that time

    24 in relation to investigations that were being conducted

    25 in Mostar and Konjic against not only the accused

  36. 1 Delalic but Mucic himself. It makes reference to that

    2 in the very early part of the document. It says in the

    3 very first paragraph:

    4 "Having read the press allegations", and I have on

    5 numerous occasions taken your Honours to references to

    6 that, "the commanding officer of Tactical Group 1 and to

    7 a certain extent myself, I wish to expose those

    8 fabrications and inform you as follows."

    9 Your Honours, in my submission I have shown you in

    10 particular Exhibits 137 and 141 and 117, where there are

    11 references to the fact that the Croatian press in

    12 particular fabricated stories about what the accused

    13 Delalic, and to a lesser extent Mucic, were doing.

    14 Your Honours, this document, to illustrate its

    15 relevance, I have to take you to it in some detail.

    16 Dealing firstly with the second sentence in the first

    17 paragraph , numbered 1, it says:

    18 "Problems with the BH army and other bodies in the

    19 municipality of Konjic started on the day that Zejnil

    20 Delalic had to hand over command of the Konjic forces to

    21 other commanding officers and heads of departments,

    22 having been appointed to a higher post than that of

    23 commanding officer of Tactical Group 1, based on

    24 Pazaric, Konjic, Jablanica, Prozor, on the Mount of

    25 Igman and other places I am not aware of."

  37. 1 Your Honours, in our submission, this relates to

    2 the handing over of command when the 4th Corps finally is

    3 set up. It is a criticism of that:

    4 "All the successfully planned and carried-out

    5 operations in Konjic, from the very beginning of the

    6 war, were done while he", in our submission Zejnil

    7 Delalic, "was the leader in Konjic. In brief, since

    8 I have been involved from the very beginning."

    9 In our submission, your Honour, this goes to show

    10 that the accused Mucic, who was there in the very

    11 beginning, he even shows that, is well placed to then go

    12 on and describe these events. He goes on in the second

    13 paragraph from the bottom, starting:

    14 "At the very beginning, the HVO was treated as a

    15 paramilitary organisation and encountered problems with

    16 the municipal bodies, and even ordinary people, because

    17 the BH leadership had not yet taken a clear stand about

    18 the uprising and had not clearly labelled the

    19 aggressor."

    20 That in our submission is a reference to this

    21 ongoing conflict that existed with the HVO:

    22 "He", and again we say this means the accused

    23 Delalic, "put his and his sister's house at the disposal

    24 of the BH-Army and the HVO."

    25 Previously I had taken your Honours to an exhibit

  38. 1 where there was this meeting at the commander's house

    2 and we submit, your Honour, that that relates to that

    3 particular thing, to that issue, and again, that is

    4 referred to in Exhibit 129. Going on:

    5 "Investing his authority, reputation and

    6 extraordinary organisational skills, Zejnil", in our

    7 submission Zejnil Delalic, "managed to overcome the

    8 Muslim lethargy and to achieve regular army status for

    9 the HVO in Konjic. I myself was a member of that army.

    10 The very first money received by the HVO treasury was

    11 Zejnil's money."

    12 Your Honours will recall, you have looked at

    13 exhibits but in particular exhibit I think 144, where a

    14 document which is signed "Zejnil Delalic, Commander of

    15 Tactical Group 1". There is a reference there in that

    16 document to the fact that he had contributed

    17 considerable sums of money to the army in

    18 Bosnia-Herzegovina in its early days and its early

    19 establishment. I am sorry, page 3, was that reference?

    20 If we could go to 144, page 3, we see there the

    21 reference in the second from the bottom:

    22 "I bought 2,000 uniforms", et cetera, "the

    23 remaining communications equipment with my own money."

    24 But then goes, if we may go back to document 120

    25 at that bottom paragraph, -- sorry, 130, bottom

  39. 1 paragraph. It then goes on in the middle of that

    2 paragraph:

    3 "I was employed in Austria."

    4 That is where the accused Mucic was arrested,

    5 your Honours are aware of that:

    6 "I used to bring over the money."

    7 He goes on to talk about the amounts, which I do

    8 not need to trouble your Honours with. He goes on in

    9 the next sentence:

    10 "I know he had spent all the money by May 1992,

    11 for the army in Konjic and other places. People would

    12 come from all the regions in order to manage and get

    13 through to reach him."

    14 Your Honours recall those exhibits which we put

    15 in, they were in very scribbled handwriting, but they

    16 deal, we submit, deal with the purchasing of arms and

    17 matters we showed you earlier. We submit this goes to

    18 those questions as well.

    19 Going over now to the top of the next page, it

    20 starts off, the very top paragraph:

    21 "He", we submit Zejnil Delalic again, "was strict

    22 and severe and his orders were immediately carried out,

    23 although some people were already beginning to hate him,

    24 but the achievements were proving his point."

    25 It then goes on:

  40. 1 "As early as 19th April, the first group of select

    2 volunteers, myself included, occupied the barracks in

    3 Celebici and the Serbian village itself. Those were the

    4 first barracks in BH to fall. There were about 20 of

    5 us. We were poorly armed. Zejnil rode in the leading

    6 car, carrying a Kalasnikov, purchased with his own

    7 money. All the big HVO and TO and MUP bosses stayed in

    8 Zejnil's house in Konjic, waiting to see whether we

    9 would come back alive or not."

    10 Your Honours, in Exhibit 144, on page 4, and if

    11 I can go to that, please, at the bottom paragraph,

    12 again, this is a document that I said earlier is signed

    13 "Zejnil Delalic, Commander of Tactical Group 1", it

    14 says:

    15 "I was in Konjic until the end of June. I took

    16 part in all actions, including the seizure of the

    17 Celebici barracks. It was the first barracks to be

    18 taken in Bosnia-Herzegovina. I was a leader of a group

    19 of about 20 volunteers. The leaders of the TO, HVO and

    20 MUP were waiting in my house for the outcome of the

    21 operations. It was on 19th April 1992."

    22 In our submission, your Honours, it is almost word

    23 for word what appears in Exhibit 130.

    24 Then going down that -- if I can go back now,

    25 please, to Exhibit 130, then going down that same

  41. 1 paragraph entitled "(a)", in the second to last

    2 sentence, third to last sentence, it starts:

    3 "Zejnil", in our submission Zejnil Delalic,

    4 "ordered that one of our groups move into the barracks

    5 that very night and adapt them for a future prison or

    6 war camp".

    7 JUDGE JAN: Where is this portion?

    8 MR. NIEMANN: I am sorry, your Honour. If your Honour looks

    9 on your television screen, it is six lines from the

    10 bottom of the first paragraph, paragraph (a), starting

    11 "Zejnil ordered", where the marker is now showing.

    12 JUDGE JAN: Yes. The thread has still not got --

    13 MR. NIEMANN: Sorry, perhaps the marker could be on -- do you

    14 see where the marker is on the side, your Honour:

    15 "Zejnil ordered that one of our groups move into

    16 the barracks that very night and adapt them for a future

    17 prison or war camp".

    18 JUDGE JAN: Thank you.

    19 MR. NIEMANN: Your Honour, the next paragraph immediately

    20 beneath that makes reference to an event that occurred

    21 in the Igman armament factory. It says:

    22 "A few days later, the captured weapons were

    23 utilised to take the Igman armament factory and a

    24 substantial quantity of weapons, especially the

    25 anti-aircraft guns, that were immediately taken out and

  42. 1 installed and brought down their first planes the very

    2 next day."

    3 Your Honours, this is just an event, but it is an

    4 event which we submit relates to an event that was

    5 participated in by the accused Delalic in his capacity

    6 at that time, and it is referred to in a video Exhibit

    7 116, which we will go to in due course. But it is

    8 confirmed by that.

    9 Down the bottom of the page, in the

    10 paragraph commencing "(c)", there is relation to an

    11 operation in "D Selo". If I recall, I think

    12 your Honours at one stage asked me what a particular

    13 exhibit that made reference to "D Selo" meant; it was

    14 Exhibit 119 and if it can quickly be put on the screen,

    15 Exhibit 119, and blown up, your Honours will see the

    16 reference there "Dugo Selo barracks" and down in

    17 paragraph 4, a reference to the accused Mucic and it is

    18 signed, "Commander Zejnil Delalic" and in Zagreb, him

    19 being in Zagreb in the early part of May.

    20 If we may go over the page on to page 3, in

    21 paragraph (d) towards the bottom of the page, there is a

    22 reference there to military activity. It says:

    23 "Two weeks later Zejnil organised and commanded

    24 jointly with Mr. Zovko (HVO) the Bradina operation, HVO 1

    25 battalion joined the operation on the second day.

  43. 1 Results: Communications between Konjic and Hadzici were

    2 re-established and Bradina was taken in two days."

    3 Again, just another reference to the activities

    4 and his particular involvement at the time. Towards the

    5 bottom of the page, a note appears on the document. It

    6 says:

    7 "The usual practice in both locations was that the

    8 group or unit which captured any armaments would keep

    9 them and use them to arm its new members. During the

    10 interrogation in prison, detainees would also admit the

    11 existence of weapons' caches. Most of them had extra

    12 weapons buried near their houses ..."

    13 Going over the page:

    14 "... and would be taken by the MUP patrols to show

    15 the exact locations. All such armaments were taken and

    16 stored by the MUP. Everybody knows that Zejnil", in our

    17 submission Zejnil Delalic, "continuously argued with

    18 Guska about that and about the poor participation of MUP

    19 reserve units in the operations. The quarrels escalated

    20 after the withdrawal of the HVO and the joint command in

    21 June 1992. Zejnil", Delalic in our submission,

    22 "insisted that every weapon found be given to new

    23 members of the BH-Army."

    24 Your Honours, in our submission this goes to show

    25 that the accused Delalic knew that interrogation of

  44. 1 prisoners was taking place, it goes to show that the

    2 purpose of the interrogation, one of the purposes of the

    3 interrogation, was to locate weapons, and for those

    4 weapons to then be distributed to members of the

    5 BH-Army, and is again consistent with what I have said

    6 about that April 1993 document, where it speaks of a

    7 similar modus operandi in relation to any attack on the

    8 HVO. Your Honours, also it is a matter which is

    9 referred to in Exhibit 129.

    10 If we go to the very bottom of the page,

    11 your Honours, on that page, we see that short

    12 paragraph I showed you relating to the rail transport:

    13 "Five days later, quite on his own, he organised

    14 the first rail transport along", et cetera. I was

    15 referring your Honours to Exhibit 127.

    16 Then paragraph (f):

    17 "Delalic insisted that we attack Borci a week

    18 after Bradina, and that the entire municipality be

    19 cleansed. However, it could not be done because the HVO

    20 withdrew."

    21 I took your Honours to that part which showed the

    22 dispute then developed between the accused. Over the

    23 page, page 5, there is a reference there right in the

    24 very centre of the very last paragraph, the big long

    25 paragraph, there is a reference I just draw

  45. 1 your Honours' attention to, I do not need to go to it in

    2 detail, but a reference to the Repovci incident where

    3 the police officers were ambushed and killed, which

    4 I referred your Honours to earlier. Over the page, on

    5 page 6, there is again further reference to it, and in

    6 the last sentence of the top paragraph, the accused

    7 Mucic says that Zejnil's Delalic's involvement in this

    8 particular crime would be an absurd thing, because of

    9 the fact that previously his brother was believed to

    10 also have been among the police officers that were

    11 killed. We do not need to go into that, it is just it

    12 is consistent again with that pattern.

    13 Then your Honours, in the second to last sentence

    14 of that paragraph in the middle of the page, starting:

    15 "In any case, several members of the military

    16 command of the armed forces managed to get out of

    17 Sarajevo, attempted in vain to consolidate the ranks and

    18 led to quite numerous and well armed Konjic army battles

    19 of Borci and Mt. Igman. The result was drawing attention

    20 to themselves and stupid investigation primarily

    21 detrimental to the BH-Army."

    22 Again, just a reference to these ongoing

    23 investigations that occurred, the next paragraph,

    24 starting, "I am surprised", there is a reference there

    25 to the media. It says:

  46. 1 "Judging by the media, it is obvious that both the

    2 other hostile sides respected Zejnil more than the

    3 BH-Army."

    4 Finally on this page:

    5 "In Austria, where my wife and children have found

    6 refuge, I have attempted recently to get in touch with

    7 Mr. Delalic, but have not been received. He thinks when

    8 I was commanding the prison, I made various mistakes

    9 that he is now held responsible for, at least by the

    10 media. After all, everybody knows that the first person

    11 to be declared a war criminal by Serbian BH and Serbia

    12 proper was Zejnil, at the end of April 1992."

    13 I notice, your Honours, it is 11.30. I still have

    14 some more references to this document that I wish to

    15 take you to.

    16 JUDGE KARIBI-WHYTE: We will have a short break. At 12.00

    17 we will continue on that document.

    18 (11.30 am)

    19 (A short break)

    20 (12.00 pm)

    21 JUDGE JAN: Mr. Niemann, what is the date of this letter?

    22 I do not find it.

    23 MR. NIEMANN: There is a date that appears on it, your

    24 Honour, but it does not -- it is left blank. I am sorry

    25 your Honour, there is no date on it. It is only

  47. 1 something that from its contents --

    2 JUDGE JAN: It is signed by the writer.

    3 MR. NIEMANN: Yes, I looked at that. I thought maybe the

    4 date was shown there, but it is not shown there either.

    5 JUDGE JAN: Is it signed, the one you have with you, the one

    6 which was allegedly recovered from INDA-BAU?

    7 MR. NIEMANN: Yes, your Honour. I may be able to call that

    8 up on the screen, perhaps page 12 of the Bosnian

    9 version, could that be put on the screen, please? There

    10 does not appear to be a date. Could that bottom section

    11 be highlighted?

    12 JUDGE JAN: This merely is a reference to the date on which

    13 the identity card was issued.

    14 MR. NIEMANN: Yes. It is not the date of the document.

    15 JUDGE JAN: I was looking at this letter. Does it bear any

    16 signatures, this letter?

    17 MR. NIEMANN: That is what is showing on your screen now.

    18 JUDGE JAN: No, this is probably the document further on,

    19 the letter to the consul attesting his ...

    20 MR. NIEMANN: It is page 12, but it is the document we were

    21 referring to. This is the Bosnian version of it. There

    22 does not appear to be a date.

    23 JUDGE KARIBI-WHYTE: It is all right. You may continue.

    24 I see Mr. Ackerman is on his feet. Let us hear him.

    25 MR. ACKERMAN: There is a matter I need to bring to your

  48. 1 attention, your Honours. With regard to Mr. Landzo,

    2 I have now received the report from Mr. Heinz. It is

    3 brief and fairly cryptic. I must supplement that

    4 information with a report that the authorities at the

    5 detention unit have instructed Mr. Landzo that he must be

    6 there in the morning to see the psychiatrist, because of

    7 what happened the night before last. It now gives me

    8 some concern that at least someone believes it may have

    9 been something more than accidental. I believe not, but

    10 someone apparently does believe that.

    11 I raised that issue with the Registry before we

    12 had the break, and had been informed that it is possible

    13 to reschedule that meeting with the psychiatrist on

    14 Friday, so that it would not interrupt our being in

    15 session on Thursday. The only concern I have about

    16 that, and I am not sure it is a real concern, but it is

    17 one that I have, is that if whoever at the detention

    18 unit has decided that he needs to see a psychiatrist

    19 tomorrow has based that upon information that I am not

    20 privy to, then there is a conflict with regard to the

    21 information that I have received, and I would not want

    22 to take responsibility myself for anything that could

    23 happen between now and Friday with regard to Mr. Landzo.

    24 I am perfectly happy for him to see the

    25 psychiatrist on Friday, that probably is the best

  49. 1 solution, but I am concerned that if there is a basis

    2 for the concern that it is something that ought to be

    3 dealt with sooner rather than later before someone has

    4 to take responsibility for something untoward that could

    5 occur. I am at a loss. I do not have a solution, but

    6 I do not want to personally take responsibility for

    7 requesting that the psychiatrist's visit be put off

    8 until Friday. I will accept the views of the Trial

    9 Chamber, however, without objection.

    10 JUDGE KARIBI-WHYTE: Thank you very much, Mr. Ackerman. The

    11 Trial Chamber is very concerned about Mr. Landzo's

    12 health. He has had a few difficulties and as a young

    13 man could be the child of any of us, and we think it is

    14 important that his health should be given proper

    15 attention. I do not know whether he, Landzo, would be

    16 able to co-operate with us in these circumstances to

    17 kindly give an undertaking that he will be able to

    18 attend the psychiatrist on Friday. It is only a day

    19 between. I agree 24 hours means quite a lot with a

    20 person's health, but I think it is our concern for his

    21 health and as much as possible we can give him as much

    22 help and assistance as we can, if he also will

    23 co-operate with us and attend the psychiatrist's

    24 examination on Friday, because that is only between

    25 tomorrow and the next day. That will not be a lot.

  50. 1 MR. ACKERMAN: I can tell you that Mr. Landzo is perfectly

    2 willing to wait until Friday to see the psychiatrist.

    3 My only concern about that would be: does he possess the

    4 competency to make that decision? I hope so.

    5 JUDGE KARIBI-WHYTE: I think he can.

    6 MR. ACKERMAN: I just again want to express my own concern

    7 that I do not want to take responsibility for it being

    8 put off until Friday based upon the minimal information

    9 that I have right now. Someone at the detention centre

    10 apparently thinks it is important that he see the

    11 psychiatrist tomorrow. I do not even know who that is.

    12 If it is a guard, then I am not very concerned. If it

    13 is one of the medical personnel there then I am; I do

    14 not know.

    15 JUDGE KARIBI-WHYTE: We are not trying to deny

    16 responsibility for rescheduling, we are only relying on

    17 his courage and his composure and ability to know how

    18 long he can carry on before he sees the medical

    19 personnel and I think he will be able to cope between

    20 now and Friday morning.

    21 MR. ACKERMAN: I just have a note from Mr. Landzo which says:

    22 "Tomorrow coming prison doctor. Because of that

    23 I must see doctor tomorrow."

    24 I think perhaps Mr. Landzo does not understand that

    25 the detention centre has indicated that it is possible

  51. 1 to reschedule this doctor until Friday.

    2 JUDGE KARIBI-WHYTE: We will give him every co-operation.

    3 MR. ACKERMAN: I do want to say, your Honour, that

    4 I appreciate your concern for Mr. Landzo's condition. He

    5 and I both appreciate that and I leave it in your hands

    6 as to whether he see the doctor tomorrow or Friday. It

    7 is a decision that I do not feel competent to make,

    8 because I have insufficient information to make that

    9 decision. But Mr. Landzo himself does not object to

    10 waiting until Friday to see the doctor, I can tell you

    11 that.

    12 JUDGE KARIBI-WHYTE: Okay. (Pause). Thank you very much.

    13 I think the Trial Chamber thinks Friday might be a more

    14 convenient day for everyone and we will make sure that

    15 even today if there is any necessity, I think we can

    16 pressurise; if it is needed to do so we can do so,

    17 instead of waiting for that long. Thank you very much.

    18 Mr. Niemann, you can continue.

    19 MR. NIEMANN: As your Honour pleases. If we could move on to

    20 page 7 of the English version of this document, please?

    21 Top paragraph, your Honours, is entitled with a heading,

    22 "Prisoners and camps in Konjic". It starts by saying:

    23 "Let me emphasise at the very beginning that any

    24 miscarriages and irregularities in that respect alleged

    25 by local slander and bombastic stories in the Croatian

  52. 1 press could only be ascribed to me as the prison

    2 commander and my deputy and other co-workers in the

    3 prison and further to persons in the municipality."

    4 The next paragraph, your Honour sees:

    5 "Zejnil had nothing to do with any prisoners. He

    6 only liberated the barracks, established the prison and

    7 was the first in BH to classify the prisoners in nine

    8 categories while he was in charge only of Konjic. On

    9 the contrary, apart from achieving all that, he also

    10 filled the prison with 500 Serbs and Chetniks. A

    11 further 200 prisoners, mainly civilian Serbs, were

    12 brought in by others."

    13 Your Honours, in our submission, the relevance of

    14 this is that it goes to the question of the application

    15 of the Conventions, the Geneva Conventions, to the

    16 persons detained in the prison and for the reason why

    17 they were incarcerated there. It then goes on:

    18 "This category was chiefly brought in because of

    19 private disputes, even old ones from before the war. At

    20 one time, at the very beginning, I had almost 700

    21 prisoners. After the fall of Bradina, we encountered

    22 various problems, including lack of food, guards and

    23 medical care."

    24 These are all matters that your Honours have heard

    25 of in the course of the testimony of the witnesses:

  53. 1 "Among the less significant information that

    2 I wish to bring to your attention is the fact that all

    3 the shovel handles in Celebici were broken in two days

    4 because the new prisoners were beaten, irrespective of

    5 the degree of their guilt. We had a lot of problems

    6 with seriously injured prisoners. Many of them died,

    7 and we caused ourselves additional trouble as we had to

    8 provide medical care et cetera because a Geneva team

    9 registered the camp very soon after. The three member

    10 commissions were set up to carry out the first

    11 interrogation and to categorise the prisoners."

    12 Then it goes on to refer to the commission. The

    13 next paragraph commences:

    14 "Discharged on 18th November 1992 from my post as

    15 prison commander, I duly handed over to my successor all

    16 the reports and lists of all the commissions and all the

    17 categories. Therefore up to the arrival of the state

    18 commission, decisions on the release of the wrongfully

    19 detained Serbian nationals were made by Mr. Goran Lokas."

    20 He goes on to deal with that issue. Your Honours,

    21 in Exhibit 131, which we will come to next, and perhaps

    22 if I can just make reference to it now, the second

    23 page of the English translation, if that could be blown

    24 up there, this document, your Honours, as I say which we

    25 will come to next, was also a document found among these

  54. 1 documents in Vienna and in particular, in our

    2 submission, there is a relationship between documents

    3 130 and 131, at least in this context, where it says

    4 there:

    5 "Within the framework of the transfer of duties

    6 carried out by TG1, all responsibilities, the

    7 warehouses, prisons et cetera were transferred in an

    8 orderly fashion. In this context, I want to point out

    9 that the Celebici prison was handed over to the Konjic

    10 Ops/OS ... as early as 15th November 1992, at which

    11 point the prison commander Pavo, who had been in that

    12 post until then, was replaced and relieved of his

    13 duties."

    14 I do note, your Honours, and just so it is not

    15 said otherwise, that the dates seem to be different.

    16 The dates in Exhibit 131 of the handover, it speaks of

    17 as early as 15th November 1992, at which point the

    18 prison commander had been replaced, and in the document

    19 130, the date referred to is 18th November. But it is

    20 our submission that very little turns on that.

    21 Your Honours, going back to Exhibit 130, page 7,

    22 the very bottom of the page , there is a reference there

    23 again to the fact that Mr. Delalic had not personally

    24 communicated with any of the prisoners or carried out

    25 any interrogation, which is consistent with the

  55. 1 Prosecution case.

    2 Page 8, if we may go over to that, it explains, in

    3 our submission, the top paragraph, why it is that the

    4 accused Delalic was not involved in such things as

    5 interrogation of prisoners, when it says at the top of

    6 that page:

    7 "Busy with the more important matters, once the

    8 prison had been established, he seldom visited it,

    9 except when escorting delegations of other BH command

    10 posts, the press and the Geneva Red Cross."

    11 Your Honours have heard evidence I think of those

    12 visits, particularly his involvement with the Geneva

    13 Red Cross:

    14 "On those occasions, he would mostly check on the

    15 work of the investigation commissions, accommodation

    16 conditions, appearance of the guards and whether the

    17 treatment of inmates conformed to the Geneva

    18 Convention."

    19 The next paragraph:

    20 "All the work on the exchange of prisoners and the

    21 release of prisoners in all-for-all exchanges were

    22 performed by Ms. J Dzumhur, myself and my deputy. The

    23 military police provided the necessary escort and

    24 monitored the implementation of agreed exchanges. The

    25 TG1 command reprimanded us on several occasions because

  56. 1 of irregularities in the implementation procedure. The

    2 last order we received from the main state commission in

    3 Sarajevo before the expiration of my mandate was to

    4 release 134 prisoners unconditionally."

    5 It goes on, your Honours, then two paragraphs --

    6 one paragraph further down, commencing:

    7 "Allegedly, three persons were supposed to have

    8 been killed in the prison. That is not true, because

    9 over 30 prisoners had died there because of various

    10 reasons. One single shell exploding in the sports

    11 centre killed 14 Serbs, and wounded several guards."

    12 Your Honours, this appears to be a reference to

    13 Musala prison, and your Honours will recall that the

    14 heading of this document relates to, "Prisoners and

    15 camps in Konjic", as opposed to being limited to

    16 Celebici camp. It then goes on, significantly, your

    17 Honour, in that sentence, in terms of why we say this is

    18 a relevant document:

    19 "The rest succumbed to beatings, injuries, or were

    20 killed while attempting to escape, or died of natural

    21 causes. A general chaos prevailed in the beginning.

    22 Various civilians and members of the MUP would come in

    23 and beat the prisoners up. At the same time, other

    24 Muslims and Croat civilians would bring food and

    25 cigarettes to Serbs, their former neighbours and

  57. 1 acquaintances. It all went on until I brought some

    2 order and strengthened the guard and security system.

    3 Hazim Delic, my deputy, and Mitke, commanding officer of

    4 the sabotage and reconnaissance unit, arranged to move

    5 to one of the prison rooms one of their number (a man

    6 called Hodza) who had syphilis and who had previously

    7 been housed in the motel."

    8 It goes on:

    9 "Delalic could not and should not have known we

    10 were housing the sick men and the allegations about the

    11 order for his murder were nothing but fabrications. The

    12 orders about anything connected with the prison were

    13 received and passed on only and exclusively by me.

    14 Commanding officer Delalic never gave such an order to

    15 anybody."

    16 Your Honours, in my submission, that relates to

    17 the order to murder this person which the investigations

    18 were about and which in our submission this memorandum

    19 is addressed to correct, in part at least, so it says:

    20 "Commanding officer Delalic never gave such an

    21 order to anybody", namely an order to carry out a

    22 murder. "Any discrepancies about the case should be

    23 clarified by Hazim and Mitke and it should be

    24 investigated whether it was a case of murder of a sick

    25 man or a case of death due to natural causes as

  58. 1 diagnosed by the doctor."

    2 Again, the relevance of that is just to that

    3 question of the murder. We say the significance of this

    4 particular paragraph is the reference to Commanding

    5 Officer Delalic and giving orders.

    6 MR. GREAVES: Your Honour, I hate to interrupt my learned

    7 friend, I am sure he will forgive me when he hears the

    8 reason for it. This is a reference to the matter that

    9 the Prosecution has already said they do not rely on.

    10 Does he now change his stance on that? This matter

    11 involving Hodza who had syphilis is one and the same

    12 thing.

    13 MR. NIEMANN: I am indebted to my friend. I am not in any

    14 way wishing to bring this matter into the Chamber as a

    15 matter for your Honours' consideration, I was merely

    16 wishing to explain any ambiguity that might appear in

    17 the sentence:

    18 "Commanding officer Delalic never gave such an

    19 order to anybody."

    20 I believe it is open to ambiguity, and I was

    21 endeavouring to address that issue of ambiguity, should

    22 there be any, but I am certainly not in any way wishing

    23 to ask your Honours to have regard or consider that

    24 issue.

    25 Your Honours, at the very bottom of the page,

  59. 1 there is a reference again to "D Selo", which I had

    2 taken your Honours to at least one document that related

    3 to that, and the author of this, the accused Mucic, in

    4 our submission, then goes on to say:

    5 "My departure was only known to my deputy", this

    6 is the very last sentence, "who was under orders to

    7 shoot 100 imprisoned Serbs if I failed to return within

    8 a prearranged time."

    9 Again, your Honours, we submit that this is an

    10 issue that goes to the question of dealing with people

    11 who are imprisoned, it is evidence of the fact that not

    12 only were they imprisoned so that arms could be obtained

    13 from them, not only were they imprisoned so that they

    14 could be demobilised or rendered defective in terms of

    15 the Serbs, but there was another and more sinister

    16 motive, and it goes along with the issue of exchange,

    17 that these prisoners could in fact be held hostage if

    18 events dictated it. We are not suggesting that that

    19 happened, but we are saying this is another motive for

    20 it. We submit that it is a relevant matter for

    21 your Honours' consideration.

    22 In the next paragraph on page 9, it goes on:

    23 "I had not requested permission for my trip from

    24 the commanding officer of TG1 Konjic ..."

    25 So he had not sought permission to do this from

  60. 1 TG1 Konjic or from the Ops/OS:

    2 "... nor had I informed them of my intentions,

    3 but I did report to them my findings. Delalic told me

    4 that J Dzumhur, the chairman of the state commission,

    5 should be informed urgently, and that an official report

    6 should be made immediately to MUP Konjic because

    7 civilians were involved and the territory was controlled

    8 by the Konjic MUP. All that happened early in October."

    9 Skipping one paragraph and going down:

    10 "Talking about the investigations and the

    11 situation with the prison commissions and Celebici,

    12 I can say that many errors were made when determining

    13 the categories. Individual groups were governed by who

    14 knows whose instructions and judgements. In my opinion,

    15 as I have already stated in my last transfer of duty

    16 report, there are only 11 cases who cannot be either

    17 exchanged or released. I have made a list of their

    18 names. Although I kept pointing out to Konjic municipal

    19 headquarters that no charges had been raised, not even

    20 repeated interventions by the International Red Cross

    21 brought any results. I complained to TG1 command and

    22 they issued several written warnings about the

    23 situation."

    24 It goes on. Moving on to the next paragraph:

    25 "As to the alleged release of 270 Chetniks, most

  61. 1 of whom I would consider simply Serbian nationals,

    2 I wish to specify that the total of 300 Serbs and

    3 Chetniks were released."

    4 It goes on, and then finally:

    5 "Under full moral, personal and military

    6 responsibility, I state as an irrefutable fact that

    7 except in retrospect, the TG1 commander Mr. Zejnil

    8 Delalic had no knowledge of these events nor ordered nor

    9 approved anything. On the contrary, he criticised me

    10 severely, as can be attested to by his deputy Saric, who

    11 was present when I talked about it."

    12 This document, your Honour, is the one that then

    13 goes on and is signed and the signature is attested to

    14 by the Consulate for the Republic of Bosnia-Herzegovina

    15 in Vienna.

    16 Your Honour, the next document, if it may be

    17 brought on to the screen, Exhibit 131. This document,

    18 your Honours, is again a hand-written note, and it is not

    19 signed and nor is it dated, but in our submission, from

    20 reading of the document, the period of time of when it

    21 happens to have been brought into existence can be

    22 ascertained insofar as at least it relates to the period

    23 of time following the departure of the accused Mucic and

    24 Delalic from Konjic in November 1992.

    25 Again, this document was found on the premises of

  62. 1 INDA-BAU. When it was presented to Mr. Moerbauer, in the

    2 course of his evidence, at page 3654, at lines 7 to 8,

    3 Moerbauer said of the document:

    4 "This was in binder I6 and was handed to me at the

    5 Vienna police headquarters by my colleague, Navrat."

    6 The document, your Honours, is a document which we

    7 submit is a reliable document and could be admitted into

    8 evidence and can be admitted into evidence because of

    9 its contents and what it purports to set out. It is a

    10 similar document to the last document that we looked at,

    11 the document that was written by the accused Mucic,

    12 similar in the sense that it is a document which we

    13 submit is the kind, or of a class, which may be retained

    14 by someone who was wishing to provide an explanation by

    15 various sources of their involvement in certain events,

    16 or their non-involvement in certain events, and why it

    17 is that it might be said that whatever has been alleged

    18 against that person, in this case Delalic, was

    19 unjustified.

    20 Your Honours, this document was a document we say

    21 was, if not written by the deputy of the accused

    22 Delalic, as it may well not have been written by him, it

    23 is certainly written as if it was a document created by

    24 him, but it relates to the accused Delalic. It starts:

    25 "I was the deputy to the commander of TG1

  63. 1 (Tactical Group 1), Zejnil Delalic."

    2 The reference to that person, who the deputy was,

    3 I have taken your Honours to it in a number of other

    4 documents, but in one of the documents that I took

    5 your Honours to, was document 132, which we will come to

    6 shortly. I will deal with it in much greater detail

    7 when we come to it, but it is also a document that is at

    8 least said to have been written by Edib Saric, who we

    9 submit was the deputy commander of the accused Delalic,

    10 and also, your Honours, document 137.

    11 If we can just go to document 137 for a moment,

    12 please, that document, the person listed there as number

    13 1 is described as, "assistant to the commander of TG1

    14 for security".

    15 This document, as your Honours know, was admitted

    16 and has been accepted into evidence through the witness

    17 Pasalic. So, your Honours, this document, as I say,

    18 goes on to provide and we say is relevant because it

    19 does so -- this person says he was the deputy of the

    20 accused Delalic on the day that the accused left, at

    21 around 8.00 pm on 25th November 1992. Your Honours will

    22 remember the numerous documents that I took you to where

    23 that particular time and date has been stated as the

    24 date on which the accused Delalic left the Konjic area

    25 and went via Croatia into Austria. It is also a matter

  64. 1 that was attested to by the witness Pasalic. The

    2 document goes on in the first paragraph:

    3 "The departure was planned in a completely regular

    4 way, because with the establishment of the 4th Corps,

    5 TG1 had practically ceased to exist, except for the

    6 completion of certain administrative work which I was

    7 supposed to finish."

    8 Your Honours will recall in Exhibit 117 that the

    9 document was signed in the name "Delalic", which was

    10 also hand-written and found on the premises -- I withdraw

    11 that, your Honour. It was not signed. I withdraw that.

    12 In document 117 there is a reference at the very

    13 bottom of the first page, I do not need to take

    14 your Honours to it, it simply says:

    15 "With the establishment of the 4th Corps Mostar

    16 and the one Sarajevo Corps already established, my

    17 former zone of responsibility was covered, so in the

    18 middle of November it was concluded that TG1 should be

    19 dissolved."

    20 That is document 117 which your Honours have

    21 already considered. We submit that is consistent again

    22 with what is written here. It says:

    23 "Even though 4th Corps was officially established

    24 on 24th November 1992, Zejnil only left on 25th November

    25 1992."

  65. 1 It goes on in the next paragraph:

    2 "In particular, A Pasalic knew of it and in my

    3 presence he warned him of a potential ambush on the way

    4 through Herzegovina. With that in mind, Arif gave him

    5 some certificates."

    6 Again, your Honours, in Exhibit 117, there is a

    7 reference there to Colonel Pasalic, when he says at the

    8 top of the page:

    9 "That is why I still have not fully comprehended

    10 some of his moves following my departure. Persons who

    11 knew about my travel plans were first Colonel Pasalic",

    12 and then he goes on to name others.

    13 At the bottom of that paragraph on that first

    14 page of this document, there is a reference to this

    15 coming to him:

    16 "... with a cellular phone, so I immediately tried

    17 to call numbers in Zagreb and Vienna that Zejnil had

    18 left with me. I got through and from that day, all the

    19 way up until the turmoil of our arrests in early

    20 December", and I have taken your Honours to the document

    21 where the witness Pasalic ordered that Edib Saric be

    22 arrested, "I talked to him every day, several times a

    23 day."

    24 Your Honours, in Exhibit 124, and if we could

    25 perhaps just have that for a moment on the screen,

  66. 1 page 2 of Exhibit 124 if we may, it is four paragraphs

    2 from the top, starts, "at about 1400 hours". Your

    3 Honours might see the marker that is shown on the screen

    4 there which indicates the paragraph I am referring to:

    5 "At about 1400 hours, across the border into

    6 Austria. Luckily I have the stamp in my passport", and

    7 so forth:

    8 "The next day I had a call on a mobile phone from

    9 Saric. I used the occasion to explain everything that

    10 remained to be explained."

    11 Your Honours, turning over the page, the second

    12 page of document 131, if we could, please, the first two

    13 sentences refer to the issue of the travel, and then

    14 there is the sentence:

    15 "The official invitation to visit our clubs in

    16 CH", your Honours may be aware of "CH" being initials or

    17 abbreviations used in Europe to make reference to

    18 Switzerland, "and other countries came from Sadic, who

    19 is the President's right hand man."

    20 Your Honours, in Exhibit 131, when we were looking

    21 at this exhibit -- sorry, Exhibit 132 -- there is a

    22 reference in our submission there to this question

    23 again, and if we could just go to the first page of

    24 Exhibit 132 -- I may have to come back to that. I do

    25 apologise, it is the final page, third paragraph from

  67. 1 the bottom:

    2 "You asked him to give lectures in the clubs for

    3 our people, collect funds and work on information and

    4 propaganda activities, which are in a poor state at the

    5 moment."

    6 This is a letter again written by or signed by

    7 Saric, Edib Saric, and is addressed to the President,

    8 presumably the President of Bosnia-Herzegovina.

    9 Now, your Honours, we move on to the part of the

    10 document which in our submission is the very relevant

    11 part of this document, so Exhibit 131, this is the

    12 second page we are looking at:

    13 "Within the framework of the transfer, duties

    14 carried out by TG1, all key responsibilities, the

    15 warehouses" -- I have read this part of it to

    16 your Honours before:

    17 "In this context, I want to point out that

    18 Celebici prison was handed over", et cetera:

    19 "If Pavo also left on 25th November to work abroad

    20 then who escaped or deserted his post in the army,

    21 because he had already been relieved of his post",

    22 et cetera.

    23 Then, your Honours, there is written, and as

    24 I say, this is a hand-written document, there is written

    25 at the bottom of the document -- the document is ruled

  68. 1 off in a sense, and perhaps if we could just see for a

    2 moment the Bosnian version of the document, can we see

    3 the last page, particularly that part headed "paradox".

    4 The very bottom part, your Honours see how the page is

    5 ruled off and then there appears Bosnian writing there.

    6 If we could go back again to the English version at that

    7 point, it says:

    8 "In the barracks which I personally liberated and

    9 turned into a camp for Serbs, there my brother and my

    10 associates are being imprisoned."

    11 Your Honours, in our submission this may be a

    12 matter that your Honours might well conclude indicates

    13 that in fact the author of this hand-written document was

    14 not Edib Saric at all, but indeed the accused Delalic.

    15 We say that because the reference to, "the barracks

    16 which I personally liberated", your Honours have seen

    17 references that I have taken you to where the accused

    18 Delalic participated in the taking of the barracks at

    19 Celebici. Your Honours have also seen references that

    20 I have taken you to where he ordered that it be turned

    21 into a camp and it says "a camp for Serbs", and that is

    22 indeed what it became. Then he says, it is under the

    23 title line "paradox":

    24 "There my brother and my associates are being

    25 imprisoned."

  69. 1 Your Honours, in the document that is admitted

    2 into evidence by General Pasalic, document 137, if we

    3 can just have that again on the screen, your Honours

    4 will see in the persons that were to be detained, and

    5 your Honours have heard evidence that they were detained

    6 in the Celebici camp itself, you will see a reference

    7 there in number 12 to "ZA", and then in my translation

    8 it is not clear, but I believe there is a clearer

    9 version of this document, the original of this document,

    10 where the name Zahir, Z-A-H-I-R, would be made out and

    11 Zahir Delalic, in our submission, is that reference

    12 which is referred to as the brother of the accused

    13 Zejnil Delalic, and your Honours will see that there are

    14 also references to people who could well be described as

    15 his associates in that document. So in our submission,

    16 your Honours, it would seem from that that if that

    17 interpretation is correct, then the true author of the

    18 document is not Saric at all, although it would appear

    19 that that is the person who would present as the person

    20 who wrote it. It may well have been written by the

    21 accused Delalic.

    22 JUDGE JAN: Is there any evidence that it is in his

    23 handwriting?

    24 MR. NIEMANN: There is no evidence of handwriting that

    25 your Honours have heard.

  70. 1 JUDGE JAN: Who is "Adventurer"?

    2 MR. NIEMANN: I am not able to assist your Honour with that.

    3 JUDGE JAN: Any guess?

    4 MR. NIEMANN: I can have a guess, your Honour. I can guess

    5 it is possibly a newspaper, and that this was being

    6 prepared for that purpose, but I am only guessing on

    7 that, your Honour.

    8 JUDGE JAN: I asked you for a guess because you are counsel,

    9 you are not a witness.

    10 MR. ACKERMAN: Your Honours, in that connection it seems to

    11 me that things are getting a bit out of hand and that

    12 some line must be drawn between counsel making proffers

    13 of documents and counsel offering testimony to the

    14 court.

    15 JUDGE JAN: He is just presenting documents which he says

    16 have been found from the possession of the accused and

    17 he wants to tender them, explaining them. These are his

    18 arguments. Fair enough, admission and probative value

    19 are two different things. Probative value we have not

    20 yet determined, because there may be certain attending

    21 circumstances which may reduce the probative value, or

    22 which may make them not probative at all.

    23 MR. ACKERMAN: Your Honour, I agree with that, but with all

    24 due respect, he is going beyond that. He is telling you

    25 and has just told you that he has been able to make out

  71. 1 that language in a document that is very difficult to

    2 read in fact says such and such and such and such. That

    3 is testimony, that is something we should be permitted

    4 to cross-examine him about, if he is permitted to

    5 testify about it.

    6 JUDGE JAN: Give a counter-argument.

    7 MR. ACKERMAN: That is the kind of information that should

    8 come from a witness on the stand and not from counsel.

    9 It is evidentiary in nature. It is not a proffer, it is

    10 evidence.

    11 MR. NIEMANN: Your Honours, in relation to that I will make

    12 available the document I rely upon in order to make that

    13 statement.

    14 JUDGE KARIBI-WHYTE: I do not think it is necessary. While

    15 determining the relevance of any document, you use also

    16 your skills before you decide whether a document is

    17 relevant. That might not be the same skills that might

    18 be used by the Trial Chamber while actually determining

    19 its evidence, so I do not see any quarrel with that.

    20 The Defence can also regard it as irrelevant or not a

    21 consideration.

    22 JUDGE JAN: Or without probative value, including the

    23 attending circumstances.

    24 JUDGE KARIBI-WHYTE: You put up your arguments, then the

    25 Defence will also make its own arguments and we will

  72. 1 consider it.

    2 JUDGE JAN: They can also make their guesses.

    3 MR. NIEMANN: Yes, your Honour, of course. Your Honours, if

    4 we can now move on, seeing as we have a few moments

    5 left, to the next document, document 132.

    6 JUDGE KARIBI-WHYTE: You concluded your view of 131?

    7 MR. NIEMANN: Yes, your Honour, the last document. I submit

    8 that is a document that has sufficient indicia of

    9 reliability, is very relevant and it is a document that

    10 should be admitted into evidence.

    11 Going on to document 132, if we may --

    12 JUDGE KARIBI-WHYTE: Actually we should have a short break

    13 here and come back at 2.30.

    14 (1.00 pm)

    15 (Adjourned until 2.30 pm)











  73. 1 (2.30 pm)

    2 JUDGE KARIBI-WHYTE: Yes, Mr. Niemann, you can continue.

    3 MR. NIEMANN: Yes, your Honours. Your Honours, if we could

    4 have document 132 on the screen, please, the first

    5 page of that document. Your Honours, as I was saying

    6 just before the break, this document is in the form of a

    7 letter; it is in typewritten form and the name at the

    8 bottom is "Edib Saric", and then beneath that there is

    9 hand-written the words, "20th November 1992, sent by KT

    10 and receipt acknowledged by VK, supreme command."

    11 That is in handwriting, your Honours. This

    12 document was also found at the premises of INDA-BAU and

    13 when presented to Mr. Moerbauer at page 3654, lines 10

    14 and 11 of his evidence, he said:

    15 "This was in binder I6 and was handed to me by my

    16 colleague, Navrat, at the Vienna police headquarters."

    17 Your Honours, this document is a document, as

    18 I said, about the accused Delalic. It speaks of his

    19 role during the period 1992, and it is a letter which is

    20 written in the style which suggests to be in favour of

    21 him, having regard to the allegations that were made

    22 against the accused Delalic.

    23 Your Honours, I have taken you to a number of

    24 documents where I have shown you that Edib Saric was a

    25 deputy or assistant to Zejnil Delalic, the accused, in

  74. 1 his capacity of Tactical Group 1 commander.

    2 On the first page of the document, in the centre

    3 of the page, he says:

    4 "I would to write to you about such a man who

    5 became an institution because of everything that he did,

    6 because I am not in a position to tell you this

    7 personally. His name is Zejnil Delalic."

    8 Then he proceeds to set out details about Zejnil

    9 Delalic. He says, your Honours, a few lines down from

    10 that:

    11 "He has lived in the west for 20 years. He has an

    12 university education, speaks and reads and writes

    13 several foreign languages. He has his own companies in

    14 Austria, Switzerland, Belgium and Germany."

    15 A couple of lines down from that:

    16 "He came to his hometown in March to organise his

    17 neighbours and to prepare them for war. During that

    18 period, of all of us who were directed to Konjic, Zejnil

    19 was a man who gave advice and help."

    20 He goes on to speak of the fall of Bradina, how

    21 Konjic became a logistics centre, and how he used his

    22 own money to purchase equipment for the army. It then

    23 refers, "Sefer appointed him as commander of TG1."

    24 Your Honours will recall that in Exhibit 118, we

    25 have the appointment of the accused Delalic to the

  75. 1 position of TG1 by Sefer Halilovic. There is then

    2 reference to his exceptional organisational abilities

    3 and so forth, on that page. There is a reference at the

    4 top of the next page, page 2, to his role with the HZ-HB

    5 Croatian Community. He talks of:

    6 "Implementing the orders issued by the chief of

    7 staff, Sefer", your Honours, in our submission that is a

    8 reference to Sefer Halilovic, "and sometimes issued by

    9 you."

    10 In our submission, your Honour, that is a

    11 reference to the President, Alija Izetbegovic. We say

    12 that, your Honour, there is a reference in Exhibit 124

    13 along those lines, and if we could go momentarily please

    14 to Exhibit 124, on the second page at the very bottom of

    15 124, down the bottom of the page, there is a reference

    16 there in the last sentence of the paragraph numbered 4:

    17 .

    18 "I had threatened him with the Sultan", I believe

    19 that is a large piece of artillery, "of course on the

    20 orders of my chief", I submit his chief is Sefer

    21 Halilovic, "and President Izetbegovic."

    22 Your Honours, in my submission that is a

    23 consistent reference which is picked up in this letter

    24 as well.

    25 Going back, your Honours, to Exhibit 132, you may,

  76. 1 on page 2, there is a reference in the middle

    2 paragraph starting "Mr. President"; they both start

    3 Mr. President, but the middle paragraph. I should say

    4 the paragraph more to the top, "Mr. President, those

    5 people are representatives of our MUP", that paragraph.

    6 Going down to the centre of that paragraph, the sentence

    7 starting:

    8 "The chief sent him Jovan Divjak, an extraordinary

    9 man and warrior, who became only a burden in his area.

    10 Divjak can and must be more usefully engaged in

    11 Sarajevo", et cetera et cetera.

    12 Your Honour, this is in our submission a reference

    13 to when Divjak came out to Konjic and was there at the

    14 same time as the accused Delalic and you heard from

    15 Divjak when he testified to this when he travelled and

    16 arrived there.

    17 Then there is a reference in the very last

    18 sentence of that paragraph to Sefer again:

    19 "Sefer gave authority to Zejnil and Karic to

    20 reduce tensions with the HVO through negotiations and by

    21 forming joint commands."

    22 If we could move then on to the last page of the

    23 document, page 4, there is a reference there which

    24 I have previously taken your Honours to, the third

    25 paragraph down, "that you ask him to give lectures in

  77. 1 the clubs for our people", et cetera. I referred you to

    2 it in Exhibit 131, where there is a reference to the

    3 fact that he was to give lectures in Switzerland and

    4 places outside Yugoslavia.

    5 So in combination, if your Honours please, it is

    6 our submission that this document has all the indicia of

    7 reliability; it is consistent with many other of the

    8 documents I have taken your Honours to, it complies with

    9 that central theme, and in our submission is reliable

    10 and should be admitted into evidence.

    11 Now, your Honours, moving on to the next document,

    12 if I may, Exhibit 133. Perhaps that could be displayed

    13 on the screen. Your Honour, this document is in the

    14 form of an identification card. It is headed "The Green

    15 Berets", and it bears the name of the accused, Zejnil

    16 Delalic, his father's name Salko and date of birth,

    17 refers to Konjic and it is dated 15th January 1992, and

    18 bears a registration number. This document was also

    19 found at the premises of INDA-BAU and Mr. Moerbauer, when

    20 shown this particular document, said at page 3654, lines

    21 12 to 14:

    22 "This identity card was in binder I6 and was

    23 handed to me by my colleague, Navrat, at Vienna police

    24 headquarters."

    25 Your Honours, in the record of interview with the

  78. 1 accused Delalic on 22nd August 1996, this Green Beret

    2 card was presented to the accused, and if I can just --

    3 this is now in evidence as Exhibit 99, which has been

    4 tendered, your Honours. The investigator asked the

    5 question at pages 7 through to 9 about this particular

    6 document. He says:

    7 "At the time, were you a member of any kind of

    8 military organisation or military association, or any

    9 patriotic organisation?"

    10 The accused answered:

    11 "No, I was present at one meeting on the occasion

    12 of my New Year's visit. It was a kind of humanitarian

    13 organisation. Their name was something like the Green

    14 Berets, but they were just in the process of setting up

    15 the organisation, but I forgot about it. In April when

    16 the events took place, this organisation did not appear

    17 any more."

    18 The investigator then said:

    19 "I am now showing you a card, I suppose it is a

    20 membership card of the Green Berets."

    21 If your Honours please, it is a copy of the

    22 Exhibit 133 that I have just taken your Honours to.

    23 When it was presented to the accused, he said:

    24 "I got it in 1994 when I was in Vienna already.

    25 They were celebrating some anniversary, so they asked

  79. 1 for some assistance, because they were in charge of

    2 children and disabled persons, war veterans, and

    3 I remember that some time around the New Year, they had

    4 their establishing meeting. I believe they came active

    5 and operational in 1993 and their task was to take care

    6 of children and persons killed in the war."

    7 Your Honours, in our submission, there is nothing

    8 there to suggest that the accused Zejnil Delalic, when

    9 presented with this document, a copy of which has been

    10 seized at the INDA-BAU premises in Vienna, there is

    11 nothing in the record of interview in any way to suggest

    12 that he said, "this was a forgery, it must have been

    13 placed among papers in order that someone may suggest

    14 that there are things about me which are not true". Not

    15 at all, he did not deny that it was a document that

    16 directly pertained to him.

    17 In our submission, your Honours, it is a document

    18 that goes to identification. The issue of Green Berets

    19 is another issue which may emerge during the course of

    20 the proceedings and in my submission, your Honours, the

    21 fact that not only was it found among these documents

    22 and as such bears indicia of reliability on that basis

    23 alone, and because it was found on the premises is

    24 relevant and admissible, but it is also relevant and

    25 admissible because it has been shown to the accused and

  80. 1 he did not deny that it was his document.

    2 If I may move on, your Honours, to the next

    3 document, this document, the one I want to now go to, is

    4 135, please. Your Honours, this document is also a

    5 membership-type, identity card-type document. It is in

    6 fact a membership card of the SDA, the Party of

    7 Democratic Action. Presumably it is the Vienna branch

    8 of that party or club, which may be a way of referring

    9 to it outside of Bosnia-Herzegovina. Your Honours, the

    10 document, in our submission, is relevant and admissible

    11 because it goes to issues of identity. It also

    12 interestingly -- it is also interesting from the point

    13 of view that it makes reference to the address. It

    14 gives the name "Zejnil Delalic", it gives his occupation

    15 as "translator" and in a document that I will refer to

    16 subsequently, there is a reference to the fact that when

    17 he initially went to Germany he worked as an interpreter

    18 in Germany, and that document, your Honour, I will not

    19 take you to it now, but it is Exhibit 144. We will come

    20 to that.

    21 Your Honours, the address that is shown there is,

    22 "1160 Vienna, Koppstrasse 16". Your Honours will

    23 recall that 1160 Vienna Koppstrasse is an address

    24 related to the premises INDA-BAU, where the search

    25 warrant was executed. Your Honours, this document, a

  81. 1 copy of this document was also shown to the accused

    2 Mr. Delalic in the course of the record of interview that

    3 was had with him on 22nd and 23rd August 1996, and in

    4 relation to that, the investigator said to the accused

    5 Mr. Delalic:

    6 "So in 1992, were you a member of any political

    7 party?

    8 Answer: No.

    9 Question: I am now showing you a copy of another

    10 document which was found during the search in Vienna on

    11 18th March this year. There is a copy of a membership

    12 card of the SDA, dated 4th May 1992."

    13 This document here that I am now referring

    14 your Honours to, Exhibit 135. When the document was

    15 presented to the accused, Mr. Delalic said:

    16 "This is an Austrian, this is an Austrian and this

    17 is not a political party, this is like an association.

    18 Abroad, we are not entitled to set up political

    19 parties. This is just a club and somebody must have

    20 enrolled me into their membership. This is a cultural

    21 association which is active in Austria.

    22 Question: Did you pay anything to this party?

    23 Answer: When you said 'pay', you mean membership

    24 fees?

    25 Question: Contribute fee, or in another way

  82. 1 contribute money to the party?

    2 Answer: Yes", and I think this is coming from the

    3 interpreter, "he said he thinks he gave them some money

    4 and he gave them money for humanitarian purposes."

    5 There are a number of questions that go back and

    6 forth in relation to this document and finally the

    7 accused said:

    8 "I have no reason to hide this from you because

    9 this was a legal party, but what I have to say is that

    10 in Austria we are not entitled to set up a political

    11 party, it is just an association, a club. We have no

    12 political background and I was a member of that club,

    13 SDA club, in Austria. I am not a member of the SDA in

    14 Konjic. This club is very pro SDA and as far as I can

    15 remember, political parties in 1992 in Konjic, they were

    16 not even operational, none of them, not to talk about

    17 the SDA."

    18 Nothing in that, your Honours, to suggest that

    19 this was a document that somebody had mischievously

    20 forged and placed in the premises of INDA-BAU so as to

    21 mislead your Honours that this forgery indicated

    22 anything other than what it says. In my submission,

    23 your Honours, clearly it is an authentic document; it is

    24 a document that was found among the other papers in the

    25 premises and when shown to Officer Moerbauer during the

  83. 1 course of his testimony, he said, at page 3564, lines 18

    2 to 22:

    3 "This ID card was in binder I7, and was handed to

    4 me by my colleague, Navrat, in the Vienna police

    5 headquarters."

    6 Your Honours, it is in our submission an authentic

    7 document, as are the other documents that we have

    8 referred you to in the course of this submission.

    9 The next document, your Honours, if I may move on,

    10 is document 137, if it may for a moment be displayed.

    11 This document has been admitted into evidence through

    12 General Pasalic when he testified here. It is the

    13 document that relates to the arrest warrants of the

    14 people therein mentioned, and a request for an Interpol

    15 warrant to be issued against the accused Delalic and

    16 Mucic. As I say, it has been admitted into evidence,

    17 but it was acknowledged as a document of General

    18 Pasalic. There was no suggestion by him in any way that

    19 it was a forgery or a fake, or that anyone had

    20 maliciously created it or otherwise. It was a document

    21 he immediately recognised and your Honours accepted it

    22 into evidence.

    23 Moving on, your Honours, to document 141, if I may

    24 have the first page of that document displayed on the

    25 screen. I have referred your Honours to Exhibit 141 on

  84. 1 a number of occasions. This document has been accepted,

    2 it has been admitted into evidence and accepted as an

    3 authentic document. It was authenticated by General

    4 Pasalic in the course of his testimony. It relates to

    5 those charges. It is a document which describes the

    6 accused Delalic as commander of the first Tactical Group

    7 and a high ranking officer in the army of Republic of

    8 Bosnia-Herzegovina with, "great and wider

    9 responsibility". It describes him in that fashion. He

    10 was asked various questions about that, this document,

    11 and following questioning in relation to the document,

    12 that is General Pasalic was asked questions about it, it

    13 was tendered and accepted into evidence.

    14 Your Honours, if I may go to the next document,

    15 document 143. This document is in typewritten form. It

    16 is not signed and it does bear the date 7th December,

    17 with a heading, "Mostar, 7th December". It appears to

    18 be presented in the format that one occasionally sees

    19 the drafts of press releases, but it may not be that.

    20 It is simply a typewritten document that was found among

    21 other documents there. This document, your Honours, as

    22 I say, commences at the very top of the page . "Mostar,

    23 7th December". Then it says:

    24 "The commander of the BH-Army. The 4th Corps,

    25 Arif Pasalic, has informed today's press conference that

  85. 1 22 BH-Army members have been arrested on reasonable

    2 grounds for suspecting that they have been engaged", and

    3 then he proceeds to set out the allegations.

    4 Your Honours know from Exhibit 137 and from an

    5 array of other documents that this in fact happened,

    6 that allegations and arrests were made by Arif Pasalic,

    7 then commander of the 4th Corps, and that was an event

    8 that is well known.

    9 In the second paragraph, it goes on to say:

    10 "Commander Pasalic stated that the assistant

    11 commander of the first Tactical Group, Edib Saric", and

    12 your Honours, I have taken you to a number of documents

    13 dealing with Edib Saric as the assistant commander of

    14 the accused Zejnil Delalic. This is again a reference

    15 to him. It says, "has also been arrested", and

    16 your Honours will recall that in that list of names in

    17 Exhibit 137, the list of names of persons to be

    18 detained, the name of Edib Saric appears. He is again

    19 referred to as assistant:

    20 "The names of the other arrested persons have been

    21 kept secret for the time being. The key figure of the

    22 affair, Zejnil Delalic, commander of the first Tactical

    23 Group, has escaped."

    24 It again refers to him in that position, referring

    25 to him as "escaped"; it is well known from numerous

  86. 1 other documents that I have shown your Honours in the

    2 course of this submission that he left on 25th November

    3 at 8.00 pm. It then goes on:

    4 "It has been reported that he used his connection

    5 with Serbian troops whose helicopter took him from the

    6 area of Kobiljaca to Belgrade and then to Vienna, where

    7 he owns a private firm."

    8 Your Honours will recall how vociferously the

    9 accused Delalic, in numerous documents that have been

    10 presented to you in the course of this submission, has

    11 spoken of how the Croatian media made up this story

    12 about the helicopter escape. I know this is Mostar, but

    13 presumably it was not limited only to Croatia where that

    14 occurred.

    15 It goes on and says:

    16 "The commander of the Celebici prison, Zdravko

    17 Mucic, also called Pavo, managed to escape with him."

    18 Then it goes on and sets out those details. At

    19 the bottom of the page it says:

    20 "Commander Pasalic has confirmed that General

    21 Jovan Divjak, also a member of BH-Army staff, is also

    22 detained in Konjic."

    23 The first page of this document, your Honours,

    24 goes to that question of its consistency with other

    25 documents I have shown you. It has its relevance in the

  87. 1 sense that it refers to the position held by the accused

    2 Delalic and the accused Mucic, but its significance, in

    3 my submission, is it confirms that thread of evidence

    4 that appears to run through all of these documents in

    5 relation to these events and so is primarily significant

    6 for that purpose. This document, again, when shown to

    7 the witness Moerbauer, he said:

    8 "This document was in binder I10, and was handed

    9 to me by my colleague, Navrat, at Vienna police

    10 headquarters."

    11 He says this at page 3654, lines 4 to 7 of the

    12 transcript.

    13 If we could move on now, your Honours, to the next

    14 document, 144, this document was located at the premises

    15 of INDA-BAU. It is a typewritten document, it is an

    16 extensive document. At the end of the document there is

    17 hand-written:

    18 "Geneva, 14th December 1992, Zejnil Delalic", and

    19 then the abbreviation of commander of Tactical Group 1.

    20 This, your Honour, appears to be also a document

    21 in the form of some sort of report. It seems to be a

    22 report, again it is an extensive report, on the

    23 incidents that occurred in Konjic during the period

    24 1992, when the accused Delalic was there, and provides

    25 an explanation for the accused's role in those events,

  88. 1 to the course of that period of time again your Honours,

    2 as I said, this document was found at the premises of

    3 INDA-BAU, and when presented to Officer Moerbauer, at

    4 page 3656, lines 8 to 10, Officer Moerbauer said:

    5 "This document was in a binder I/11 and was handed

    6 to me by my colleague, Navrat, at Vienna police

    7 headquarters."

    8 The document speaks of the command authority in

    9 Konjic of the accused Delalic and his authority over

    10 people in the municipalities. It starts off, if

    11 your Honours please, with a reference to those Croatian

    12 newspapers that we have heard so much about in the

    13 course of this submission, where it says in the first

    14 paragraph at the top of the page:

    15 "Almost all Croatian newspapers, some even in

    16 instalments, have recently published downright lies

    17 about my escape from Konjic to Belgrade and further

    18 afield."

    19 In my submission, your Honour, again consistent

    20 with what we have already heard in relation to that. In

    21 the next paragraph, the second sentence:

    22 "Had not my Chetnik-made helicopter, chopper, or

    23 whatever you want to call it, broken down, I would have

    24 flown all over Europe. But an end to jokes, because

    25 this might cost me or someone else his life."

  89. 1 Your Honours, the document then goes on to say in

    2 the next paragraph and in the third sentence, in about

    3 the middle of the next paragraph, starting:

    4 "I was in charge as a commander of the Tactical

    5 Group for all inconvenience and maltreatment they have

    6 suffered because of me."

    7 This document, your Honours, also give

    8 biographical background to the accused which is also

    9 referred to in a number of the documents that we have

    10 referred to in the course of this submission. I will

    11 come to that at the very bottom of the last

    12 paragraph here. It says in the last paragraph on the

    13 first page, second sentence:

    14 "One of such things is my connection with KOS, or

    15 whatever it is called. This is absolutely true. Our

    16 connections goes back to 1968 when I was a student at

    17 the arts faculty in Sarajevo."

    18 Then it speaks of demonstrations that took place

    19 at that stage and his role as a student. Then turning

    20 over the page on to page 2, the first very long

    21 paragraph, six lines from the top of the page:

    22 "At the end of 1970, I left for Germany to work as

    23 an interpreter. I still have my business connections

    24 with Germany and some other neighbouring countries."

    25 Your Honours will recall from the identity card

  90. 1 that we examined a moment ago the reference to his role,

    2 there described as a translator, here described as an

    3 interpreter.

    4 Going over to the next page, page 3, under the

    5 heading, "Arms and ammunition smuggling", which

    6 your Honours may recall was one of the allegations that

    7 had been raised at some stage, your Honours, in the

    8 second paragraph under that heading, there he speaks of

    9 coming to Konjic in March:

    10 "I brought as much money as I had at the time.

    11 I and a few friends organised the Muslim population and

    12 got in touch with the already existing HVO, who were

    13 operating underground. We worked day and night until

    14 June. We had great results."

    15 He speaks then of the distribution of weapons.

    16 The next paragraph down, starting:

    17 "I bought 2,000 uniforms", and your Honours will

    18 recall references to these uniforms in other documents

    19 that we have seen in the course of this submission.

    20 Exhibit 124 was an example of that. Then he speaks of

    21 buying the equipment, fuel et cetera, "with my own

    22 money". Then he distributed it according to needs.

    23 Four lines down, he then makes reference to the reward

    24 of 10,000 German Marks:

    25 "... to anyone who can confirm or testify that

  91. 1 I sold him a single bullet, radio transmitter,

    2 et cetera."

    3 Your Honours will recall in other exhibits we

    4 looked at, Exhibits 117 and 124 in particular, there is

    5 a reference to this offer of reward to anyone who could

    6 come forward and prove that allegation.

    7 Then in the next paragraph, there is a reference

    8 to the end of June:

    9 "Our HVO formed a completely separate command."

    10 Again, a completely consistent theme we have seen

    11 in numerous of the other documents that we have referred

    12 to. Again it says:

    13 "At the beginning of July, I was in charge of an

    14 operation which was the first attempt at liberating

    15 Borci. The HVO did not take part in that operation."

    16 Again that is consistent with what we have seen in

    17 other documents. Over the page on page 4, in the first

    18 main paragraph, we see a reference there to the fact

    19 that he was appointed to commander of Tactical Group 1.

    20 Then in the centre of that paragraph, there is a

    21 reference to Edib Saric:

    22 "In addition, the three commanders of the lines of

    23 attack were temporarily appointed only for that

    24 operation. Edib Saric was in charge of the right line."

    25 Then if we can move down to the next paragraph, it

  92. 1 reads:

    2 "I was in Konjic until the end of June. I took

    3 part in actions, including the seizure of the Celebici

    4 barracks. This was the first barracks to be taken in

    5 Bosnia-Herzegovina."

    6 He speaks of being leader of about 20 volunteers

    7 when he took that barracks. Then he makes reference

    8 towards the bottom of the page to Esad Ramic:

    9 "... who, after I was appointed commander of TG1,

    10 paraded for two months, taking oaths and forming a

    11 brigade which was never formed, and boycotting all

    12 orders by the TG1 and supreme command. I would like to

    13 emphasise that the consequences of such behaviour were

    14 unimaginable."

    15 In our submission, your Honour, that is a very

    16 relevant aspect of this document when speaking of the

    17 structure that was operating there and who was giving

    18 orders to who.

    19 Over the page, at page 5 --

    20 JUDGE JAN: In the passage you were just reading, there was

    21 one very interesting sentence. He says:

    22 "From August, I had no connections at all with the

    23 headquarters", although according to the evidence he was

    24 appointed as commander of all formations. I was just

    25 reading that:

  93. 1 "From August on, I had no connection with the

    2 Konjic headquarters apart from passing on the orders of

    3 the supreme command"; just acting as a post office,

    4 although according to you, he was the commander of all

    5 formations in Konjic. I am reading from, "from August

    6 on".

    7 MR. NIEMANN: Yes, I see that, your Honour. From August

    8 1992, I think.

    9 JUDGE JAN: He was appointed as commander of all forces

    10 I think 8th August or 9th August.

    11 MR. NIEMANN: July.

    12 JUDGE JAN: All formations, commander of Tactical Group in

    13 July.

    14 MR. NIEMANN: Tactical Group 1.

    15 JUDGE JAN: 11th or 12th July, and then he was appointed as

    16 commander of all formations.

    17 MR. NIEMANN: I do believe there is another document, it is

    18 not part of these documents, but I do believe we have

    19 seen another document.

    20 JUDGE JAN: You are relying on this document, if you have to

    21 take the document as a whole.

    22 MR. NIEMANN: Of course, your Honour. I do not have that

    23 other one to hand. Your Honour, we do not deny that

    24 there may be different interpretations placed on

    25 different things. Like all things, there is good and

  94. 1 bad for the Prosecution in these documents. We are

    2 aware of that. Whether this is bad for the Prosecution.

    3 JUDGE JAN: I am just wondering, because despite his being

    4 appointed as commander of all formations, the Konjic

    5 municipality still retained its headquarters.

    6 MR. NIEMANN: I noticed that, your Honour. It does go on to

    7 say, in the sense that there is ambiguity, in relation

    8 to the role of Ramic, he speaks of how he was appointed

    9 TG1 parader for two months. After he was appointed,

    10 Ramic, "paraded for two months, taking oaths and

    11 forming brigades which were never formed, and

    12 boycotting" --

    13 JUDGE JAN: I was just looking at this letter, I just read

    14 that sentence and thought I would draw your attention to

    15 it.

    16 MR. NIEMANN: Moving on, your Honours, at page 5, in the

    17 centre of the page, again there is a reference to

    18 Colonel Divjak, and how ultimately he comes to Konjic

    19 when the accused is there at that time.

    20 Over on the next page, page 6, in the very centre

    21 of the page, there is a paragraph:

    22 "It is interesting that from March 1992 right up

    23 until 25th November 1992, 2000 hours", that time 8.00 at

    24 night again, "I was constantly in the area of my

    25 responsibility without taking a day off, going anywhere

  95. 1 or doing anything else. I was available 24 hours a day,

    2 except for a trip to Zagreb at the beginning of March,

    3 where I was sent against my will at the request of the

    4 supreme command".

    5 JUDGE JAN: March or May?

    6 MR. NIEMANN: It says "March" here. It says "March" on this

    7 copy. Then over the page on page 7, there is a

    8 reference to, "Escape in Chetnik helicopter", a heading

    9 there and then in the second paragraph, third from the

    10 bottom, it says:

    11 "I left a report in handwriting", et cetera. The

    12 last sentence of that paragraph:

    13 "The Croatian side checked my passport in the

    14 computer and the Austrians stamped the date of my

    15 crossing, 26th November 1992, as Spielfeld. As we all

    16 know, helicopters do not land in Spielfeld, particularly

    17 Chetnik ones."

    18 Then over on page 8, towards the bottom of the

    19 page, just before the commencement of the very last

    20 paragraph, the last sentence of the very long paragraph,

    21 it says:

    22 "Saric, who replaced me until TG1 was completely

    23 disbanded, was previously at Mt. Igman with a completely

    24 different group which was later also disbanded due to

    25 the reorganisation of the brigade."

  96. 1 Then finally, your Honour, going to page 10 of the

    2 document, the very last page of the document, the very

    3 last sentence:

    4 "The intention of Zejnil Delalic, Edib Saric and

    5 several others was not to prevent this at all, but to

    6 solely fight Chetniks."

    7 Then it is signed, "Zejnil Delalic, Commander of

    8 Tactical Group 1, Geneva, 14th December 1992".

    9 Your Honours, this is a very long document. It

    10 does deal with the accused directly in a biographical

    11 sense. It deals with him in his role in Konjic; it

    12 deals with his involvement with the army there, with the

    13 establishment of the army of Bosnia-Herzegovina, in its

    14 early days, its infancy and how he contributed to it; it

    15 deals with his role in the seizure of the Celebici

    16 barracks and his role as Tactical Group 1 commander. In

    17 my submission, your Honours, it is a document that bears

    18 a considerable degree of indicia of reliability and

    19 should as a consequence be admitted into evidence.

    20 The next document, your Honours, is Exhibit 145,

    21 if that could be shown on the screen. Your Honour, this

    22 Exhibit 145 is also a document that was found in the

    23 premises of INDA-BAU, and was referred to by me earlier

    24 only for one purpose and one purpose alone, and that is

    25 it appears to contain a reference to Article 217 of the

  97. 1 Criminal Code of the SFRY, which was adopted as the law

    2 of the Republic of Bosnia-Herzegovina.

    3 In our submission the only relevance of it is that

    4 it goes to that point and tends to support the other

    5 documents where these charges were made. It also goes

    6 with those class of documents which deal with the

    7 collection of material that was found, the collection of

    8 material which, when assembled, represents a rebuttal,

    9 as it were, of the allegations that were made against

    10 the accused. In that sense, in our submission, it is

    11 relevant for that purpose only, and is admissible.

    12 Your Honours, moving on then to the next document,

    13 this document, 146, if that could be displayed on the

    14 screen, this is a document, your Honours, that is also

    15 in a hand-written form. Again, it was found on the

    16 premises of INDA-BAU. This document was shown to the

    17 witness Moerbauer. He said of it, at page 3656, line 14

    18 to 16:

    19 "This was in binder I/11 and was also handed to me

    20 by my colleague, Navrat."

    21 As I say, it is headed, "Hazim", it does not bear

    22 a date, nor does it bear a signature. It does appear to

    23 relate to those incidents which are referred to in the

    24 allegations raised by General Pasalic when charges were

    25 made. The Prosecution seek to rely on it only for its

  98. 1 reference to the structure of the chain of command which

    2 was referred to in the centre page, the centre

    3 paragraph of the document, which says:

    4 "I never received any orders or instructions from

    5 Commander Delalic. There were at least two immediate

    6 levels in the chain of command, prison commander of the

    7 municipal headquarters, and then TG1 commander."

    8 If this document was written by the deputy of the

    9 prison commander, Mucic, then one would understand, in

    10 my submission, the description of the chain of command

    11 that is being referred to there. That is the only

    12 aspect of this particular document --

    13 JUDGE JAN: Who has written this note? Who is the author of

    14 this note?

    15 MR. NIEMANN: It does not say, your Honour, but I refer to

    16 the top of the page where it says "Note - Hazim".

    17 JUDGE JAN: Who is the author? One does not know.

    18 MR. NIEMANN: No, one does not know who wrote it, but it may

    19 be a version of events described by the accused Hazim

    20 Delic.

    21 JUDGE JAN: When was it written?

    22 MR. NIEMANN: It would appear to have been written after the

    23 charges or proceedings had been commenced by General

    24 Pasalic at the end of 1992.

    25 JUDGE JAN: So there is no one who can own the authorship of

  99. 1 this note?

    2 MR. NIEMANN: No.

    3 JUDGE JAN: You rely upon this document to show the command

    4 structure, is it not a little far-fetched?

    5 MR. NIEMANN: On its own, your Honours, I would admit to the

    6 fact that there may well be difficulty in doing that, if

    7 that was all we had to present to you; but if we present

    8 it to you consistent with a whole raft of other

    9 documents which do the same thing.

    10 JUDGE JAN: So the relevancy of a note whose authorship is

    11 not known --

    12 MR. NIEMANN: No, your Honours, it was something found at the

    13 premises.

    14 JUDGE JAN: It may be found at the premises.

    15 MR. NIEMANN: Presumably if it was inconsistent --

    16 JUDGE JAN: You rely upon that, something which is

    17 consistent, when deciding the question of relevancy? It

    18 is a note, one does not know who wrote it, when it was

    19 written, in what connection it was written.

    20 MR. NIEMANN: It may be all these documents in handwriting

    21 were written by the same person.

    22 JUDGE JAN: Obviously it does not refer to Hazim Delic, or

    23 does it?

    24 MR. NIEMANN: It obviously does, I would say.

    25 JUDGE JAN: Is there anything in the note that suggests it

  100. 1 refers to Hazim Delic?

    2 MR. NIEMANN: The name at the top, "Hazim".

    3 JUDGE JAN: Hazim is a very common Muslim name.

    4 MR. NIEMANN: True, but not all Hazims were in a position to

    5 receive instructions from Commander Delalic. There were

    6 at least two levels of the chain of command, prison

    7 commander and commander of the municipal headquarters,

    8 and then TG1 commander. I would have only thought the

    9 evidence points to one person in that position, and that

    10 is the accused, Hazim Delic.

    11 Moerbauer, as I said, referred to this as being in

    12 binder I/11. We can now go to the next document, 147A,

    13 if that could be placed on the screen, please? This

    14 document is partly in handwriting and partly typed. It

    15 is a pro forma-type document with the particular details

    16 being filled in. Your Honours, it is a registration

    17 card of the United Association of War Veterans of the

    18 Republic of Bosnia-Herzegovina. The registration card

    19 pertains to the person, first name "Delalic", second

    20 name "Zejnil". Your Honours, it relates to the accused

    21 Delalic. It gives the date of birth, place of birth, it

    22 then gives the address as before the war, and it says,

    23 "Austria, Vienna", and then the street and house name

    24 is, "Taubergasse 15". Your Honours have heard

    25 Taubergasse in Vienna, Austria in relation to the search

  101. 1 warrants.

    2 Then there is an address given in Konjic. It sets

    3 out then the education, speaks of the faculty of

    4 philosophy in Sarajevo, translation college 1972,

    5 international social law in Stuttgart in 1974. There is

    6 a reference then to the languages, German, English and

    7 so forth. The next relates to joining the resistance in

    8 March 1992:

    9 "Political organisation: War Presidency. Military

    10 organisation: Konjic OSTO (Territorial Defence Municipal

    11 Headquarters)."

    12 Then describes the unit as the Konjic OSTO

    13 command, at the very bottom:

    14 "Duty: Co-ordinator between the OS armed forces

    15 and the RP War Presidency, afterwards the commander of

    16 Tactical Group 1."

    17 It then refers to:

    18 "Decorations and criminal proceedings: none."

    19 It gives then family details on the second

    20 page and then goes on to political activities. He was a

    21 member of the League of Communists from 1968 to 1972,

    22 then membership in political parties:

    23 "Member of: SDA from its establishment to

    24 present."

    25 It goes on to say:

  102. 1 "Functions in the party: member of the main board

    2 of the Austrian SDA, Vienna. Member of: SDA."

    3 In our submission, your Honours, this is a

    4 document found on the premises, it is a document that

    5 when shown to Officer Moerbauer, at page 3656, lines 17

    6 to 24, said:

    7 "These documents were located in binder I/11 and

    8 these documents, copies were made of these documents for

    9 the Tribunal on 18th March 1996. Of these documents,

    10 only copies of these documents were found in the police

    11 files."

    12 He said:

    13 "So for these documents, I made two copies, one

    14 for the people from the Tribunal and one for the police

    15 administration. A mistake must have been made in that

    16 the original must have been handed over to the people of

    17 the Tribunal as a copy".

    18 MR. O'SULLIVAN: Your Honour, I want to ask, is my friend

    19 tendering a photocopy that was in a folder, or an

    20 original that somehow left the police headquarters that

    21 night? Which of the two is being tendered here? Here

    22 we are glossing all over the fact that on the night of

    23 the 18th March things were examined, photocopied and

    24 removed and taken away, so which is it? Is it the

    25 photocopy that was in a folder, or the card that

  103. 1 disappeared from police headquarters that night?

    2 MR. NIEMANN: Might I see the original?

    3 JUDGE KARIBI-WHYTE: I do not know whether you want to argue

    4 it now or whether you prefer to challenge it by your own

    5 submissions.

    6 MR. O'SULLIVAN: It was just unclear.

    7 JUDGE KARIBI-WHYTE: Even if he did, until you have made

    8 your own submissions ...

    9 JUDGE JAN: You have to file the document which is found in

    10 the folder.

    11 JUDGE KARIBI-WHYTE: We will decide whether it is

    12 admissible.

    13 MR. NIEMANN: There is a reference, your Honours, to the

    14 testimony of Mr. d'Hooge, where he speaks of receiving

    15 this document.

    16 JUDGE JAN: The one which is recovered from the premises?

    17 MR. NIEMANN: I will have that reference to the testimony

    18 located and take your Honours to it. Your Honours, if

    19 I could see the document that the Registrar has in her

    20 papers there, I might be able to answer the question now

    21 anyway. May I see the copy of Exhibit 147A? (Handed).

    22 It appears that it may be a copy by looking at it,

    23 your Honours, but it appears that it has been attached

    24 to something, so it is possible there was never an

    25 original, as such. I will have that matter

  104. 1 investigated, your Honour.

    2 Your Honours, the next document, again found on

    3 the premises, 147B.

    4 JUDGE KARIBI-WHYTE: Which was the last one?

    5 JUDGE JAN: The registration card.

    6 MR. NIEMANN: 147A.

    7 JUDGE KARIBI-WHYTE: This is B, is it?

    8 MR. NIEMANN: This is B. This document is merely tendered

    9 because it relates to, as it were, 147A, the two of them

    10 being connected, both relating to the War Veterans'

    11 Association. It has no other significance other than

    12 that. It was found on the premises, it is signed, "Z

    13 Delalic", it is in hand-written form, it is dated Vienna,

    14 24th November 1994, and again they fall into the same

    15 category when shown to Officer Moerbauer. He said at

    16 page 3656 of the transcript, at lines 17 to 24:

    17 "These documents were located in binder I/11 and

    18 these documents, copies were made of these documents for

    19 the Tribunal on 18th March 1992 and these documents,

    20 only copies of these documents were found in the police

    21 files. So for those documents I made two copies, one

    22 for the people from the Tribunal and one for the police

    23 administration. A mistake must have been made and the

    24 original must have been handed over to the people of the

    25 Tribunal as a copy."

  105. 1 Again, I believe this is a document referred to by

    2 Mr. d'Hooge in his evidence. We can go to that in the

    3 course -- refer your Honours to that if necessary.

    4 The final document in the series of documents that

    5 we seek to tender is again a related document, Exhibit

    6 147C, and if that please can be placed on the screen.

    7 Your Honours, this document is relied on by the

    8 Prosecution in a similar way to the previous document,

    9 this time in relation to the identity card of the Green

    10 Berets, which was referred to previously in my

    11 submission as a document which was shown to the accused

    12 in the course of his interview by officers of the

    13 Tribunal, on 26th August 1996, and relates to in the

    14 same way Exhibit 133, the Green Berets card. He makes

    15 reference to the fact in the letter that the Green

    16 Berets had been established in Konjic, that it was

    17 working. It then describes the members of those who

    18 first started the resistance:

    19 "... who have not forgotten the truth and whose

    20 aims and tasks were to get to the facts, memories and

    21 proof about the establishment of operations. The

    22 founding assembly was held on November 1994."

    23 It is consistent with what he had said in his

    24 record of interview. Again, your Honours, this letter

    25 was shown to Officer Moerbauer, it fell into the same

  106. 1 category as documents that were located in binder I/11,

    2 and copies were made of the document for the Tribunal on

    3 18th March 1996, and he goes on to say for those

    4 documents he made two copies, one for the people from

    5 the Tribunal and one for police administration. He says

    6 a mistake must have been made in that the original must

    7 have been handed over to the people at the Tribunal,

    8 instead of the copy being handed over.

    9 We submit, your Honours, that having regard to

    10 where it was found, to what it relates, that it is a

    11 document that fits into that pattern of evidence that is

    12 properly admissible and has the relevant indicia of

    13 authenticity.

    14 Those then, your Honours, are our submissions in

    15 relation to the documents themselves. The next issue

    16 that it is necessary for us to address is the videotapes

    17 that were also seized from the premises of INDA-BAU, and

    18 in addition to the videotapes at INDA-BAU, the

    19 videotapes that were recovered from the premises of the

    20 accused Mucic when Officer Panzer went to the premises

    21 of Mr. Mucic and executed the search warrant, and was

    22 then -- and then did recover certain videotapes, some of

    23 which have been played in the course of the evidence.

    24 For example, the first videotape to be played and

    25 admitted into evidence is the videotape that contains --

  107. 1 JUDGE KARIBI-WHYTE: Before you start on the videotapes, let

    2 us get our bearing right, because the evidence which was

    3 led here did not reveal that there was an accurate count

    4 of the videotapes as was recovered.

    5 MR. NIEMANN: An accurate count, your Honour?

    6 JUDGE KARIBI-WHYTE: Yes, of the videotapes.

    7 MR. NIEMANN: There was reference to that in relation to the

    8 INDA-BAU tapes, but not all the tapes came from

    9 INDA-BAU. A group of the tapes, ones that we will deal

    10 with first, came from the premises of the accused

    11 Mucic. The testimony of Mr. Panzer is that when he went

    12 there with the search warrant to recover those premises,

    13 he said that he asked Mr. Mucic whether he had any

    14 videotapes relevant to the Celebici camp -- in fact,

    15 I have been handed part of the transcript here. These

    16 videotapes from the premises of Mr. Mucic were recovered

    17 by Officer Panzer in the following way; at page 6444,

    18 line 11, Officer Panzer said, in relation to the

    19 videotapes recovered from the premises of Mr. Mucic:

    20 "I talked to Mr. Mucic and I told him we were

    21 looking for documents relevant to war crimes in Bosnia;

    22 in particular, there were to be videotapes of Celebici

    23 camp that he had made, and he said he did not have

    24 anything of that sort, but there were videos with

    25 footage from the Celebici camp. I asked him, 'where are

  108. 1 those videotapes?' Thereupon, we entered the living

    2 room and there is a piece of furniture there up against

    3 the wall. He took out some tapes, a dozen or so. He

    4 put those tapes on the table and then he picked out from

    5 the pile four videotapes and in respect of these, he

    6 said there were the reports about the war, footage of

    7 destruction and footage of all, shall we say,

    8 entertainment activities at the camp."

    9 So your Honours, in relation to the videotapes

    10 recovered from the premises of Mr. Mucic, there is no

    11 issue at all about numbering or anything of the sort.

    12 It was straightforward, they were given to him by

    13 Mr. Mucic, they were given in the context when Officer

    14 Panzer was searching for relevant information, relevant

    15 videotapes, they were handed to him by the accused Mucic

    16 in response to the request by the officer. In my

    17 submission, your Honours, there could be no more

    18 authentic way, no more reliable way for information to

    19 come to this court than by such process where the

    20 accused himself presents the material to the officer

    21 conducting the search.

    22 JUDGE KARIBI-WHYTE: You started with a general discussion

    23 of videotapes. Where there is a mix-up as to whether the

    24 number of videotapes recovered varied in terms of

    25 numbers as recorded, you have to separate those which

  109. 1 there is no dispute as to the numbers from those to

    2 which there are disputes.

    3 MR. NIEMANN: Yes, and I have done that, your Honours, in

    4 terms of referring to the Mucic tapes. They are to be

    5 distinguished from the INDA-BAU tapes where there is

    6 dispute.

    7 JUDGE KARIBI-WHYTE: Not now, I did not hear that. You just

    8 opened your statement with the question of tapes. You

    9 just opened your address with the question of

    10 videotapes, and this is why I tried to narrow it down as

    11 to those with which there are difficulties in

    12 determining the number which were recovered and those in

    13 which there is no difficulty. This is what I wanted to

    14 do.

    15 MR. NIEMANN: Yes. There is no difficulty with the Mucic

    16 tapes.

    17 JUDGE KARIBI-WHYTE: Yes, so by the time you make your

    18 arguments, we will understand which you are referring

    19 to?

    20 MR. NIEMANN: On the Mucic tapes, there are no disputes, only

    21 the INDA-BAU tapes. The Mucic tapes; there may well be

    22 dispute about their admissibility, I would be surprised

    23 if there was not, but it is not a result of there being

    24 a mix-up of numbers.

    25 Your Honours, I have prepared a list of the --

  110. 1 I have prepared extracts of each of these videotapes.

    2 It seems to me that the easiest way to deal with it is

    3 to deal with the transcript of the tape itself as a way

    4 of illustrating the relevance of the words, of the

    5 spoken word that appears on the tape. We can go back

    6 and play the tape, if that would assist your Honours,

    7 but it seems to me that just for the purposes of dealing

    8 with admissibility, it is probably better to first deal

    9 with the transcript. I am not tendering the transcript

    10 as evidence as such, but I am using it as an aide

    11 memoire to assist in the discussion about its

    12 relevance. Then we can view the video with the aide

    13 memoire, if your Honours wish to follow that course,

    14 because it is, of course, the videotapes themselves,

    15 that is the evidence we seek to tender, and not the

    16 transcripts of the words that appear on it which has

    17 been translated into the English language.

    18 I have a copy for -- one each for counsel for the

    19 Defence and one each for your Honours. If that could be

    20 handed up?

    21 JUDGE JAN: Perhaps these videotapes have already been

    22 played in the court. One was a birthday party, the

    23 other was one of the witnesses being asked to do some

    24 exercises. I forget, but I remember two.

    25 JUDGE KARIBI-WHYTE: You have ideas of particular scenes

  111. 1 contained in the videotapes which you want to play

    2 back. Even if they have already been played, I suppose

    3 you might mention it, we will take it into

    4 consideration.

    5 MR. NIEMANN: I will do that, your Honour, and mention the

    6 ones that have been played. The first videotape,

    7 Exhibit 109, that has been admitted already. It is an

    8 exhibit, so it has been admitted into evidence. It has

    9 also been played to your Honours, so the first one we

    10 deal with is Exhibit 110. Would your Honour excuse me a

    11 minute? (Pause). My understanding, your Honours, is

    12 that the whole of Exhibit 109 is admitted and accepted

    13 in evidence. I do not know if there is any dispute

    14 about that, but that is how I understand the position.

    15 JUDGE JAN: The person who prepared those videos, the

    16 driver, has already been examined.

    17 MR. NIEMANN: Yes. I think it is also a video that had been

    18 played by the Defence as well, it is a short video

    19 I understand. But in any event, I will come back to it

    20 if necessary, but my understanding is that it is

    21 admitted.

    22 Exhibit 110 then is the first video that --

    23 JUDGE KARIBI-WHYTE: We will have the short break now. We

    24 will come back at 4.30.

    25 (4.00 pm)

  112. 1 (A short break)

    2 (4.30 pm)

    3 JUDGE KARIBI-WHYTE: Mr. Ackerman, can we hear you?

    4 MR. ACKERMAN: Your Honour, Ms McMurrey, for unavoidable

    5 reasons, is unable to be with us for the rest of the

    6 afternoon. I also want to bring the court up to date on

    7 the latest Landzo report. That is that arrangements

    8 have been made for him to see the doctor, apparently

    9 around noon tomorrow. The request is that we adjourn at

    10 11.30 and remain in adjournment until 2.30. They can

    11 take him to see the doctor and have him back here in

    12 time for the 2.30 session. That would be my request and

    13 I think it is a reasonable one and appropriate.

    14 JUDGE KARIBI-WHYTE: Thank you very much. The Trial Chamber

    15 thought it might be unfair for him not to see the doctor

    16 tomorrow, since there was no specific appointment for

    17 him for the Friday, which we thought, so we are very

    18 pleased. It is better he sees his doctor at that time,

    19 but if he still needs special treatment, then the

    20 appointment can be made for him to see the doctor some

    21 other time.

    22 MR. ACKERMAN: Thank you, your Honour. I want to again

    23 express my appreciation and that of my client for your

    24 and the other judges' sensitivity to his situation.

    25 Thank you so much.

  113. 1 JUDGE KARIBI-WHYTE: Yes, Mr. Niemann.

    2 JUDGE JAN: Mr. Niemann, I was asking you before the break,

    3 have not these tapes been proved by the person who took

    4 them? I will not name him, the driver.

    5 JUDGE KARIBI-WHYTE: He is a protected witness.

    6 JUDGE JAN: That is why I will not name him.

    7 MR. NIEMANN: One of the tapes was, your Honour, by the

    8 driver.

    9 JUDGE JAN: I probably mentioned two or three tapes. One

    10 was about the birthday party, one was taking exercises,

    11 one of the detainees, who is also a protected witness,

    12 and then certain scenes from the streets of Konjic.

    13 MR. NIEMANN: That was the first one, I think, your Honour.

    14 The streets of Konjic --

    15 JUDGE JAN: They were all in one tape then?

    16 MR. NIEMANN: No, I think they are different tapes, your

    17 Honour. The streets of Konjic I think is the first

    18 tape, 109. If I may just check for a moment? It is a

    19 funeral scene, starts off with a funeral scene. I think

    20 that one has been admitted. There is also the one that

    21 your Honour speaks of, where the driver attested to

    22 taking part of it. Not all of that went into evidence,

    23 but only part of it, the part that he says he was

    24 involved in taking it.

    25 There is another tape, which was a tape of an

  114. 1 interview given by the witness Pasalic, and it has been

    2 tendered too. That is Exhibit 114.

    3 JUDGE JAN: Which still leaves some tapes unproved.

    4 MR. NIEMANN: Yes, it does. The Pasalic tape was the

    5 INDA-BAU tape. There are some which have not been done

    6 yet.

    7 JUDGE JAN: I was just suggesting, of course you can tender

    8 everything which is legally permissible, I was just

    9 mentioning that we had some tapes recovered from Mucic's

    10 apartment allegedly identified by him to persons

    11 carrying out the search. Of course you know your case

    12 better. I will not stop you.

    13 JUDGE KARIBI-WHYTE: Which are we now concentrating on?

    14 MR. NIEMANN: The first one is Exhibit 110. Your Honours

    15 have been handed a transcript, I think. It is easier,

    16 I think, to deal with a transcript. It should have at

    17 the top of the page "MIB".

    18 JUDGE KARIBI-WHYTE: Which of the segments?

    19 MR. NIEMANN: Segment 1. Your Honours, I must say at the

    20 outset that without the tape playing, it loses, just

    21 relying on the transcript, it loses some of its

    22 relevance, so if there is some -- if your Honours are

    23 concerned about the relevance of a certain aspect of the

    24 tape, it is our submission that that relevance is

    25 enhanced by a viewing of the actual material itself, and

  115. 1 certainly the best way to do it is to see it, but I am

    2 trying to do it as efficiently and quickly as possible.

    3 I think I can do it by submission, just relying on the

    4 written material, but if I am unsuccessful on that,

    5 I will have to revert to actually showing it, which

    6 I will try to avoid for the moment. There will be some

    7 stage, presumably before the end of the case, when the

    8 parts that we wish to emphasise, in submission or

    9 otherwise, will be played at that stage, but if I can

    10 proceed on this basis at the moment, we can see whether

    11 or not it can be established.

    12 Your Honours, the Exhibit 110, referred to as

    13 "MIB", this document, as I said, was recovered from the

    14 premises of Mr. Mucic. It was shown to Officer Moerbauer

    15 at page 3622 of the transcript, line 22. Officer

    16 Moerbauer said:

    17 "Here again, MIB, both the tape and the case, and

    18 therefore stem from the apartment of Mucic."

    19 At page 6505, line 24 and 6506, line 1, the tape

    20 was shown to Officer Panzer, and he said:

    21 "I can remember this tape as well for two reasons:

    22 first of all because of the word written

    23 here 'Celebici', that is written on there, and then

    24 secondly because of the sticker MIB. I wrote that on

    25 here and I put the sticker on the tape and then on the

  116. 1 case has the same sticker, 'M' for Mucic, 'I' for the

    2 tape and 'B' because it is the second tape that we

    3 seized."

    4 Then at page 6506, lines 14 to 15, Panzer said:

    5 "This is also a tape that was handed to me by

    6 Mr. Mucic."

    7 Your Honours, the first segment, these are very

    8 short segments, and as I say, one only picks up part of

    9 the relevance of them from the words, but primarily, the

    10 reference by the accused Mucic to:

    11 "Zejnil said I must have had an arrangement with

    12 them."

    13 It then flows on at segment 2, arrives at the gate

    14 to the Celebici camp, the car that is being travelled in

    15 by the accused Mucic. There is a short segment there

    16 where the accused is photographing a soldier, who is

    17 saying "not me, please".

    18 We then go on to segment 3, which is referred to

    19 in that transcript, and it shows the administration

    20 building, building number 22, and briefly, inside the

    21 administration, there are some guards and the accused

    22 Delic. We submit that all of this is relevant as it

    23 goes to the camp itself, it goes to the authority of the

    24 accused Mucic who was driving in there. The reference

    25 to Zejnil --

  117. 1 JUDGE JAN: The reference to Zejnil is not very clear, in

    2 what connection the statement attributed to Zejnil was

    3 made.

    4 MR. NIEMANN: That is true. It is as it appears there.

    5 JUDGE JAN: The relevance is over Mucic's concern.

    6 MR. NIEMANN: I acknowledge that, your Honour. Then the

    7 administration building and building number 22, which

    8 your Honours have heard so much reference to. Then

    9 there is reference to the army in segment 4:

    10 "Smajo, the army is grateful to you for the land

    11 you contributed down there."

    12 It is just a small point, but it is a reference to

    13 somebody in authority expressing their appreciation for

    14 the provision of food in the form of land to the army.

    15 Then in segment 5, it is a totally different

    16 segment then, this bears the date 16th August -- I am

    17 sorry. It is segment number 5, 01:19:15. There is a

    18 voice:

    19 "I would like to give the floor to the President

    20 of the War Presidency of our municipality, Dr Rusmir

    21 Hadzihuseinovic."

    22 Your Honours have seen reference to this gentleman

    23 on numerous occasions. Then he addresses the soldiers

    24 that are gathered there, congratulates them and speaks

    25 of laying the foundation for the forming of the army of

  118. 1 Bosnia-Herzegovina in the Konjic area:

    2 "This is a historic moment, when all of us who

    3 have defended our country from the first days of the

    4 aggression", et cetera et cetera, and so a speech is

    5 given. Then an officer is seen on the video and he

    6 says:

    7 "I would like now to give the floor to the

    8 commander of Tactical Group 1 for lifting the blockade

    9 of Sarajevo, Mr. Zejnil Delalic."

    10 Then the accused Delalic addresses the soldiers.

    11 He speaks of greeting them and the units for Konjic,

    12 holding their positions, have demonstrated they are

    13 ready for combat, et cetera.

    14 MR. ACKERMAN: Your Honour, excuse me just a minute. Just a

    15 suggestion, I think it is quite helpful that Mr. Niemann

    16 has provided us all with this aide memoire as he calls

    17 it; it seems to me it would be both merciful and

    18 efficient for him to simply point out what it is about

    19 these segments that he thinks make them relevant, rather

    20 than reading to us what we can all read a great deal

    21 faster than he can read it to us. We are all staying

    22 quite a way ahead of him and maybe it would be efficient

    23 for him to say, "I think this segment is relevant for

    24 this reason". Maybe we can move through this a lot

    25 faster, that is my hope.

  119. 1 JUDGE KARIBI-WHYTE: It might be more helpful if you just

    2 point out the areas you emphasise. There are quite a

    3 number of segments and not all of them are relevant to

    4 what you want to show.

    5 MR. NIEMANN: Your Honours, we say that segment 6 is relevant

    6 because it relates to the authority of the accused Mucic

    7 in relation to the camp. We have here the reference to

    8 a woman who wants to see a gentleman inside the camp,

    9 and is asking for permission to do that. There is a

    10 group of women gathered there who are endeavouring to do

    11 that. At first, the accused Mucic says that nobody can

    12 visit, it is a prison, that if he makes one exception

    13 then he has to make others. Ultimately he relents and

    14 grants permission for the woman to actually go in. So

    15 in our submission, your Honour, this clearly shows his

    16 authority in relation to the camp, shows his authority

    17 to allow people to make visits from time to time and his

    18 authority to refuse visits if that is requested.

    19 The next segment, segment 7 is a lengthy segment.

    20 It relates to a prisoner who was in the camp, a

    21 gentleman by the name of Hristo Zuza. Your Honours,

    22 there is evidence by a protected witness that it was

    23 generally considered that this gentleman was a person

    24 who was either mentally retarded or of very low mental

    25 ability. The segment that follows is a very lengthy --

  120. 1 there is a whole large segment that is produced then

    2 that follows, which we say goes to the issue of the

    3 treatment of these people when they are in the camp.

    4 There is nothing suggested that it is physical

    5 mistreatment at all, but having regard to the fact that

    6 this gentleman was mentally handicapped, that he was in

    7 the camp as a prisoner and he was Serbian, and then the

    8 way the accused Mucic then proceeds to treat him in

    9 those circumstances, in our submission, goes to the

    10 question of inhumane treatment.

    11 One has to see this in sequence, one has to read

    12 what was said, but on doing that, in our submission, we

    13 submit that this is evidence of inhumane treatment.

    14 Examples that appear, as the reference to:

    15 "Tell me, are you sleepy? Why are you blinking

    16 your eyes?

    17 "Prisoner: I was born like this."

    18 Then there is a voice that says in front of the

    19 accused Mucic:

    20 "Tell us, who is the greatest?

    21 "Prisoner: Allah.

    22 "Voice: Who?

    23 "Prisoner: Allah.

    24 "Voice: Who?

    25 "Prisoner: Allah, Allah, Allah."

  121. 1 Then the accused Mucic asks how tall Allah is, and

    2 so forth. There are those references there and later

    3 on, the accused Mucic makes him recite things. Firstly

    4 he tells him to recite names of domestic animals and it

    5 is necessary for him to then recite, "horse, cow, sheep,

    6 lizard", et cetera, then further names of birds and he

    7 makes him recite those, then towns and then the prisoner

    8 is made to do that. It may on its face seem innocuous

    9 to us sitting here, but in those conditions, we would

    10 argue that having regard to his condition and what he

    11 was made to do, that this is evidence of that.

    12 Then it goes on, this is again a very long segment

    13 which gains its significance from seeing it as well as

    14 just reading it, but there is a reference there to a

    15 part there where Eda says:

    16 "Say: Sieg heil!

    17 "Prisoner: Sieg heil, sieg heil, sieg heil!"

    18 Then they talk about an incident which involves

    19 Hristo again and he is subjected to further, in our

    20 submission, inhumane treatment and ridicule at a time

    21 when he is dressed, he is dressed as a woman, and the

    22 accused Mucic says:

    23 "Wait a minute, you are not Tarzan, you are a

    24 woman now.

    25 "Voice: More gentle, more gentle."

  122. 1 Then there is a whole lot of questions back and

    2 forth as this person was presented in this capacity as a

    3 woman, dressed as a woman. Then again there is this

    4 requirement for him to recite animals and fish and wild

    5 animals and so forth and this man is made to recite

    6 them, and he says:

    7 "Roe, sheep", and so forth, "kangaroo,

    8 salamander, squirrel", and there is references to that

    9 in the transcript.

    10 In our submission, all of this goes to that

    11 question of inhumane treatment of this man that was held

    12 in custody in the camp.

    13 Then there is segment 11, which in our submission

    14 shows the hangar number 6 and the machine-gun bunker.

    15 There is a question:

    16 "What is the situation there like?

    17 "Prisoner: Excellent.

    18 Mucic: What do you have to complain about, you

    19 are quite well off compared to what you guys would have

    20 done to us if you could."

    21 Then finally in segment 12, we have the gun being

    22 fired into the air and the prisoner ordered to do the

    23 push-ups which your Honour has referred to. Bearing in

    24 mind that the prisoner doing the push-ups is an elderly

    25 gentleman, he testified as to the difficulties that he

  123. 1 had in having to do that. Finally there is the end

    2 scene, the administration of -- in the administration

    3 building of the Celebici camp.

    4 So all of that, when put collectively together, in

    5 our submission it is relevant for a range of reasons, it

    6 is relevant in the sense that it shows the accused

    7 Delalic and he is dealing with troops at the camp, and

    8 his relationship to the President of the War

    9 Presidency.

    10 MS. RESIDOVIC: I apologise, we object, the name Delalic is

    11 not mentioned anywhere but my learned friend has

    12 mentioned that name.

    13 MR. NIEMANN: In segment 5 it is referred to.

    14 JUDGE JAN: Just one sentence relating to Delalic:

    15 "Arrangements to be made."

    16 That is why I asked Mr. Niemann. That is a very

    17 vague sort of a reference to Delalic. What

    18 arrangements, with reference to what?

    19 MR. NIEMANN: No, your Honours, segment 5 over the page.

    20 Your Honour is referring to segment 1.

    21 MS. RESIDOVIC: I apologise, that was the celebration of

    22 the brigade.

    23 JUDGE KARIBI-WHYTE: The lifting of the siege of Sarajevo.

    24 MR. NIEMANN: It is the second page, segment 5 on the second

    25 page. So for what it shows, who it shows, for what it

  124. 1 deals with, for the conversations that take place and

    2 those matters that I referred to, your Honours, having

    3 regard to the fact that it was a videotape actually

    4 handed to the officer, it is admissible, and we, along

    5 with everything else, move for its admission into

    6 evidence.

    7 I can move on to the next document, which is MIC,

    8 which is Exhibit 111. I will hand that up,

    9 your Honours. I understand your Honours do not have a

    10 copy of it. (Handed).

    11 Your Honours, this segment 1 of this tape relates

    12 to the unloading or the carrying of goods which appear

    13 to have been received. There is no explanation from the

    14 video as to where they came from or who provided them,

    15 but it would seem to be the receiving of supplies, and

    16 there is some discussion there of what is contained. At

    17 the top of the page, the soldier says:

    18 "Sure, film me, and then show it to the Chetniks

    19 up there."

    20 The accused says:

    21 "Zoka, that is him. Sieg heil! Let them film us

    22 together. This one too, son. We will get a lot of

    23 money from Milosevic for this tape.

    24 "Soldier: Let us get down to business."

    25 There then seems to be a counting off of material,

  125. 1 "boots, 40 pairs, a case of ammunition for snipers",

    2 and so forth, it appears to relate to that. The

    3 reference further down is a reference to the fact that

    4 everybody wants to steal it and the accused Mucic says:

    5 "I am surprised about that. I thought that all

    6 thieves were in prison. You can send them to me. There

    7 is enough room for 2,000 more."

    8 In my submission, your Honours, that is a

    9 reference to the Celebici camp; "send them to me, there

    10 is room for 2,000 more" is a reference to the capacity

    11 to take more prisoners there. A man says:

    12 "Really?

    13 "Mucic: Just send them. I have dug a large hole there.

    14 "Man: When the Red Cross comes, let them see only

    15 the fresh ones.

    16 "Mucic: They may stay there if they dig too deep.

    17 "Man: Imagine that, a Red Cross mission

    18 arrested."

    19 Your Honours, clearly the issue of the Red Cross

    20 visiting and coming to the camp on occasions when they

    21 did was an issue of concern not only for the accused

    22 Mucic but the accused Delalic, and it was an issue that

    23 they were concerned about. Then over the page in

    24 segment 2:

    25 "'How can you let the Chetniks load that stuff?'"

  126. 1 In our submission, your Honours, there is evidence

    2 of equipment, military equipment arriving at the

    3 Celebici camp, and we have evidence of witnesses who

    4 were assigned the duty to load this equipment or unload

    5 this equipment and pack it away. We have heard evidence

    6 of that in the course of the hearing. In our

    7 submission, the reference:

    8 "'How can you let Chetniks load that stuff?'", and

    9 the accused Mucic answers that, he asks a question of

    10 himself and then gives the answer:

    11 "They can take my gun, and if they have balls

    12 enough, they can shoot me, but they are afraid. Only,

    13 you must not give it to somebody who does not have a

    14 family", and the rest is inaudible. It is a short

    15 segment, Exhibit 111. This exhibit --

    16 MS. RESIDOVIC: Your Honours, just a brief remark; I made

    17 an error a moment ago, but now I have been following

    18 very carefully. Not in a single segment is the name of

    19 Mr. Delalic mentioned, but I understood that my learned

    20 colleague, because he is not mentioned, referred to him

    21 by saying that that was something worrying Mr. Delalic.

    22 I think it is necessary to present a document by its

    23 contents and not to make any allusions in connection

    24 with it.

    25 JUDGE KARIBI-WHYTE: You are not trying to be fair with the

  127. 1 procedure we have adopted. You will have your chance to

    2 reply and point out these things. I do not see any need

    3 why you should bother at this stage. Kindly continue.

    4 MR. NIEMANN: As your Honour pleases. Your Honours, when

    5 this Exhibit 111 was shown to Mr. Panzer in the course of

    6 his evidence at page 6506, lines 17 to 20, he said:

    7 "This tape is one I remember, not on account of

    8 the label but rather on account of the sticker I put on

    9 here, 'MIC'. Once again, 'M' for Mucic, 'I' because it

    10 is a tape, and 'C' because it was the third tape I put a

    11 sticker on. The same reference on the case of the tape,

    12 and this is also a tape that was handed to me by

    13 Mr. Mucic and one that I had a brief look at in his

    14 apartment in his VCR."

    15 Your Honours, having regard to the contents of the

    16 tape, where it was taken, who it involved, who was seen

    17 in the tape and its relationship to the other evidence,

    18 the fact that it was given to Officer Panzer by the

    19 accused Mucic when the search warrant was executed on

    20 the premises I submit that properly it is relevant, it

    21 is properly admissible and should be admitted and I move

    22 its admission. Your Honour, excuse me. (Pause).

    23 Now if I could move on to the next exhibit, video

    24 Exhibit 112. This is referred to as "MID".

    25 MR. MORAN: Your Honour, while that is being distributed,

  128. 1 I just want to make sure in my own mind all the

    2 Prosecution is offering is what is in these excerpts,

    3 rather than the entire tape; am I correct on that?

    4 MR. NIEMANN: Yes, your Honours.

    5 MR. MORAN: Thank you very much.

    6 MR. NIEMANN: (Handed). Your Honours, this is again a tape

    7 that was handed to Officer Panzer by the accused Mucic

    8 during the course of the execution of the search warrant

    9 on his premises. At page 6503 and 6504, when shown this

    10 particular video, Officer Panzer said in relation to it:

    11 "This video is one I recognise on the basis of the

    12 label and the sticker which I put on there. That is my

    13 writing on there. On the first line, it says 'Celbit'

    14 that I recognise. There are two videos we found at

    15 Mr. Mucic's apartment that had such a reference. One of

    16 them said 'Celbit' and the other said 'Celebici' on it.

    17 I had a look at all four videotapes. MID, this tape,

    18 I believe, has the footage where Mr. Mucic can be seen

    19 together with other people in uniform. They are in a

    20 room and there is singing and drinking going on there."

    21 Your Honours, this videotape shows the

    22 relationship between the accused Mucic as commander of

    23 the camp and the guards that are under his command. It

    24 is a very long tape, but it does contain -- we have

    25 extracted very short segments of it, because of

  129. 1 primarily the people that appear and the relationship

    2 that exists between them. There is a reference to a

    3 witness that has testified and testified that he was

    4 present at this party, and that is in the very first

    5 segment. Then there is, in the second segment, there is

    6 a reference to Hazim, there is music playing.

    7 Then at the very bottom of the segment 2, there is

    8 a question by the harmonica player:

    9 "Are they lacking anything?", and the accused

    10 Mucic says:

    11 "What they might be missing is some beating."

    12 Then there is a reference following that to

    13 Borci. Again a reference to the witness who testified,

    14 and then we see a voice says:

    15 "You will go with me and the commander. We will

    16 give you a gun but you must shoot at your own people.

    17 "Mucic: You never know where he will shoot. We

    18 will keep him under control.

    19 "Soldier: We will take care about him,

    20 commander."

    21 Then we go over to segment 4, it is a reference

    22 there to going to Borci, and your Honours are aware of

    23 other evidence that you have been referred to in

    24 relation to Borci, and the role that it played -- the

    25 significance of it during this particular time. There

  130. 1 is towards the bottom a reference there, where it

    2 starts:

    3 "Zara, you will tie me and him and pretend that

    4 you captured us. Then you must tell them to let us go

    5 or you will shoot them", et cetera et cetera. Then a

    6 voice says:

    7 "He must take us to one of their nests", and so

    8 forth:

    9 "Mucic: And what then?

    10 "Voice: Then we will throw in a hand grenade."

    11 Your Honours, having regard to the fact that this

    12 video was handed to Officer Panzer by the accused Mucic

    13 in response to his questions as to what he wanted when

    14 he was executed the search warrant, having regard to its

    15 contents and its relationship to other matters upon

    16 which your Honours have had testimony or evidence, it is

    17 our submission that this is a video that should properly

    18 be admitted into evidence.

    19 Your Honours, you asked me to address you on the

    20 question of the videos that were recovered from the

    21 INDA-BAU premises and where there was a difficulty with

    22 the numbering. Your Honours, this in our submission was

    23 the subject of your Honours' decision in relation to it

    24 on 12th September 1997 at page 7406 of the transcript,

    25 where your Honour Judge Karibi-Whyte, when delivering

  131. 1 the decision of the Chamber, said:

    2 "We are giving a very short ruling on the last of

    3 the arguments, because of the nature of the decision we

    4 are handing down.

    5 "The Trial Chamber has considered the contentions

    6 of counsel for Delalic and for the Prosecution, with

    7 respect to the admissibility of evidence consisting of

    8 documents and video cassettes recovered during the

    9 search of premises designated as occupied by Delalic in

    10 those proceedings."

    11 That is the INDA-BAU premises and there was a

    12 premises where no documents have been tendered in

    13 relation to:

    14 "We have considered the contention that the

    15 warrant relied upon for the search of the premises is

    16 illegal. The Trial Chamber has no evidence of the

    17 breach of any conditions predicating its issue. We rely

    18 on the principle of omnia presumatorite esse acta to

    19 hold the warrant valid. The effect of non-compliance

    20 with the procedure requirements of such, we do not

    21 consider the situation so reprehensible as to render the

    22 acts illegal. We therefore consider it in the interests

    23 of the trial to admit the material recovered during the

    24 search. We therefore consider it in the interests of

    25 the trial to admit the materials recovered during the

  132. 1 search and tendered in evidence.

    2 "We however observe that the Defence is entitled

    3 to address the Trial Chamber on those materials, and

    4 will be entitled to challenge the admissibility of any

    5 documents sought to be tendered as arising from the

    6 search or discrepancies from evidence of witnesses.

    7 This is because the Prosecution is seeking to tender 12

    8 folders containing documents but not the documents

    9 contained therein."

    10 Your Honour is quite right, we have never sought

    11 to tender the documents contained in those folders:

    12 "To adopt another approach would be tantamount to

    13 reviewing a considerable portion of the case, an

    14 exercise clearly undesirable in the overall

    15 determination of the case, which should not be decided

    16 piecemeal. The Defence is entitled to challenge any of

    17 the evidence when tendered. They still reserve the

    18 right to challenge any other issues which are not

    19 involved in this decision.

    20 "I think this is our decision. We will carry on

    21 in this way. We will deliver our ruling on the Mucic

    22 admissibility letter later on, not now. We can now go

    23 into a status conference."

    24 At that stage, Madam Residovic rises and says:

    25 "Your Honour, with your permission, to make sure

  133. 1 that it is clear to me in this phase, this was your

    2 decision regarding the documents and 12 folders.

    3 However, in the proposal of the Prosecution -- in the

    4 motion of the Prosecution, there were three videotapes

    5 that Mr. Navrat, the only witness from the location,

    6 could neither identify nor recognise, nor did the

    7 Prosecutor propose that to the witness, and in your

    8 decision, I did not hear whether you decided -- whether

    9 you have already ruled on the three videotapes whose

    10 number changed from the time of the seizure to the time

    11 they departed from the police station, so I would like

    12 to ask you if I misunderstood, because I thought the

    13 ruling referred only to the documents. I would like to

    14 have a clarification at this point. Thank you very

    15 much."

    16 Then your Honour, Judge Karibi-Whyte then responds:

    17 "What I said was consisting of documents and video

    18 cassettes. That was what I said. Perhaps the

    19 transcript will show that."

    20 Clearly, your Honour's transcript does precisely

    21 that. In our submission, your Honours, the issue of the

    22 numbering as an irregularity has by that decision been

    23 ruled upon, and your Honours have ruled in favour of the

    24 submission of the Prosecution in that regard, but

    25 your Honours did preserve the right for the accused to

  134. 1 argue other matters other than the question of legality

    2 of the search warrant and questions pertaining to the

    3 procedures adopted at the time, so in our submission,

    4 your Honours, your Honour's decision is quite clear and

    5 indeed was rendered even more clear by the fact that

    6 Madam Residovic rose immediately after your Honours had

    7 delivered your ruling on this question and specifically

    8 and precisely asked you that question in relation to the

    9 mis-numbering of the video, and your Honour quite rightly

    10 responded that your ruling covered not only the

    11 documents but the videos as well, and that that would be

    12 reflected in the transcript, which indeed it was.

    13 In our submission, your Honours, that question has

    14 been ruled upon by your Honours, but there are other

    15 matters obviously that the Defence may choose to argue,

    16 which your Honours have preserved for them to do so by

    17 that ruling.

    18 Your Honour, the first of those videos that were

    19 recovered from the premises, I22 --

    20 MR. O'SULLIVAN: Your Honours, are you entertaining argument

    21 on the interpretation of your decision? You pointed out

    22 to Mr. Niemann you wanted to discuss with him the better

    23 of the discrepancies; now he has offered an

    24 interpretation of your decision and we have not heard

    25 from you.

  135. 1 JUDGE KARIBI-WHYTE: Actually I am not sure he is going to

    2 discuss the fact that the observations which were

    3 reserved to a later date have been taken care of. You

    4 still have the opportunity to challenge the particular

    5 tapes, because not being sure which tapes were recovered

    6 from there, you still have the opportunity of doing so.

    7 MR. NIEMANN: Your Honours, as I said, the first tape,

    8 Exhibit 114, was a tape of an interview that was given

    9 by General Pasalic in May 1992 in relation to events

    10 that occurred in --

    11 JUDGE KARIBI-WHYTE: Before you continue, the attitude which

    12 we took then, and which we still do take now, is that

    13 there was a confusion in the number of tapes recovered.

    14 There is no doubt that tapes were recovered or were

    15 claimed to have been recovered at the INDA-BAU premises,

    16 but because of numbering irregularities one was not sure

    17 whether there were additional tapes from elsewhere or

    18 whether it was a mere miscalculation of how many tapes

    19 there were. The problem now is which of the tapes,

    20 which they are entitled to challenge, which of the tapes

    21 are additional to those which were found on the premises

    22 and those which were shown to have been counted at the

    23 police headquarters, because from one premises to the

    24 other there was an increase. You have to show exactly

    25 how to explain that discrepancy.

  136. 1 MR. NIEMANN: Your Honour, I --

    2 JUDGE JAN: May I also refer to a situation or

    3 circumstance? Navrat appeared in the witness box and he

    4 insisted upon the number which he had mentioned in his

    5 report. Nobody asked him from the Prosecution side,

    6 "could you be mistaken about the number?" That

    7 discrepancy had already come to our attention.

    8 MR. NIEMANN: I will need to examine the evidence.

    9 JUDGE JAN: You see the question is, if there are three

    10 additional tapes, which ones are those? Is it the one

    11 now which you are offering? That is the point.

    12 JUDGE KARIBI-WHYTE: It is not certain which are the

    13 additional tapes.

    14 JUDGE JAN: The Prosecution could have simply asked him,

    15 "could you have been mistaken in your counting?"

    16 MR. NIEMANN: I will need to look at the transcript. I did

    17 not take the witness so I will need to examine the

    18 transcript to see what was said. What I do know is that

    19 the tapes that are before your Honours were specifically

    20 dealt with.

    21 JUDGE JAN: He dealt with 54. Only 51 were recovered,

    22 according to Navrat. He might have dealt with the

    23 tapes -- because Moerbauer was not there. There is a

    24 doubt, that is all I am referring to.

    25 JUDGE KARIBI-WHYTE: It is still lingering. That doubt has

  137. 1 not been cleared, that there were additional tapes. Now

    2 when you do whichever tapes you do now, it is not easy

    3 for you to say with certainty, "These were the tapes

    4 recovered from the premises".

    5 JUDGE JAN: Maybe the one which you are referring to now was

    6 not one of the original 51. Mr. Navrat could have been

    7 simply asked, "Could you have been mistaken?", and he

    8 could have said, "I was in a hurry, I had to go

    9 somewhere else, maybe I left it to someone else to count

    10 them, I took the figure as it was". He could have given

    11 so many explanations, but you did not ask him for

    12 explanations.

    13 MR. NIEMANN: I did not take the witness, your Honour. Your

    14 Honour, the point that I make though is that the

    15 evidence --

    16 JUDGE JAN: It is a criminal trial and we have to be very

    17 clear that the evidence we admit is really the evidence

    18 which was recovered.

    19 MR. NIEMANN: All I am saying is that it is not a matter of

    20 speculation, there is evidence here which specifically

    21 deals with it. That is the only evidence that deals

    22 with these particular tapes.

    23 JUDGE KARIBI-WHYTE: There is uncertainty.

    24 MR. NIEMANN: It does not appear to be uncertainty from the

    25 evidence, your Honours. The evidence seems to be clear.

  138. 1 JUDGE JAN: Navrat's statement is clear. As it is under the

    2 criminal law which we administer the benefit of any

    3 reasonable doubt has to go to the accused.

    4 MR. NIEMANN: As to his guilt or innocence?

    5 JUDGE JAN: Yes.

    6 MR. NIEMANN: I agree with that, your Honours.

    7 JUDGE KARIBI-WHYTE: The trouble is the prosecution seems to

    8 be sure or certain about the tapes recovered. Every

    9 other person who is familiar with this case knows that

    10 there is uncertainty about the number of tapes.

    11 MR. NIEMANN: Your Honours, unless I have misunderstood the

    12 words of your Honours' ruling, I thought the question of

    13 the chain of evidence had been resolved. Certainly it

    14 has been addressed in my submission.

    15 JUDGE KARIBI-WHYTE: No, that was why it was left to the

    16 Defence to challenge any attempt to bring them in.

    17 MR. NIEMANN: Your Honours, I made a submission on chain, an

    18 extensive submission on the chain of evidence.

    19 JUDGE JAN: Tapes were recovered, whether 51 or 53, but some

    20 tapes were recovered, and we left the Defence with the

    21 opportunity of challenging whenever they are being

    22 tendered in evidence. We have heard a discrepancy,

    23 which came to the notice of the Prosecution a long time

    24 ago when Moerbauer was appearing in the witness box.

    25 The Prosecution should have cleared that up when Navrat

  139. 1 appeared.

    2 MR. NIEMANN: I made a lengthy submission on this issue, and

    3 I assumed your Honours had decided. From my reading of

    4 your Honours' decision, I thought you had.

    5 JUDGE KARIBI-WHYTE: What did your submission lead to, that

    6 one figure was the accurate figure?

    7 MR. NIEMANN: My submission related to the legality of the

    8 search, the procedures adopted by the officers at the

    9 time and the question of the chain of evidence.

    10 JUDGE KARIBI-WHYTE: That does not mean that --

    11 JUDGE JAN: We have no reason to doubt the integrity of the

    12 Austrian police officers. They spoke the truth. They

    13 did make a count. The question is: how many tapes did

    14 they count?

    15 MR. NIEMANN: That is the chain of evidence, I would have

    16 thought.

    17 JUDGE JAN: Moerbauer merely comes in 22 days later; when he

    18 examines these tapes, he finds 54.

    19 MR. NIEMANN: That is not chain of evidence.

    20 JUDGE KARIBI-WHYTE: Anyway, it could not be accepted that

    21 those tapes were all those tapes recovered from the

    22 premises. It would not be acceptable.

    23 MR. NIEMANN: In relation to the tape that was shown to

    24 General Pasalic at least, which is already admitted --

    25 JUDGE JAN: Pasalic said that he did make the statement.

  140. 1 Fair enough, you can have it on the record.

    2 MR. NIEMANN: That is in evidence. That was also affected by

    3 the mis-numbering.

    4 JUDGE KARIBI-WHYTE: But here is a person who made that

    5 statement on the television, which was taped; he said,

    6 "I did make the statement", so that in itself is

    7 sufficient, not because it was found in INDA-BAU. The

    8 fact that the person who appeared in that picture says,

    9 "I made this tape, this refers to me", is sufficient to

    10 prove that tape. You do not have to go to the testimony

    11 of the Austrian police officers.

    12 JUDGE KARIBI-WHYTE: You do not have to go anywhere else.

    13 MR. NIEMANN: I will make submissions to your Honours on the

    14 question, then, of chain of evidence.

    15 JUDGE JAN: It is not a question of chain of evidence, it is

    16 a question of tapes were recovered and Moerbauer

    17 examines them, he finds them to be 54. You could have

    18 easily cleared the position when Navrat appeared in the

    19 witness box. You could have said to him, "You only

    20 recovered 51 but from the box which you presented

    21 Moerbauer, there are 54", and he could have given an

    22 explanation.

    23 MR. NIEMANN: I can recall Moerbauer, if your Honours please.

    24 JUDGE JAN: How would that help, if he again said, "I saw

    25 54"?

  141. 1 MR. NIEMANN: I could put to him that he made a mistake.

    2 JUDGE JAN: Who made the mistake, Navrat or Moerbauer?

    3 MR. NIEMANN: I will call both.

    4 JUDGE JAN: Because Moerbauer has listed 54, so he knows

    5 that he has 54 tapes. Navrat has listed 51, he says,

    6 "I recovered 51", so how would recalling them help to

    7 clear this discrepancy?

    8 MR. NIEMANN: Your Honour was just saying to me a moment

    9 ago --

    10 JUDGE JAN: If you want to call them, you should call

    11 Navrat, not Moerbauer.

    12 MR. NIEMANN: I can do that too.

    13 JUDGE KARIBI-WHYTE: And then he will come and say, "I had

    14 54 instead of 51"?

    15 MR. NIEMANN: I have no idea what he will say, your Honour.

    16 JUDGE JAN: You had the opportunity, you did not avail

    17 yourself.

    18 MR. NIEMANN: I did not speak to him.

    19 JUDGE JAN: The discrepancy had already come to the notice

    20 of the Prosecution and the Defence. You should have

    21 cleared it then.

    22 JUDGE KARIBI-WHYTE: What you want to do is to deal with the

    23 content of those tapes as recovered from INDA-BAU

    24 premises. This is where it comes into issue.

    25 I think we will have a break. It is 5.30. You

  142. 1 can go and think of how to resolve it. I am afraid

    2 there is no way open to me now to allow those tapes as

    3 they are, for the content of those tapes. I am not sure

    4 about what they contain, but when you get to the

    5 contents, you can tell me whether they can be used at

    6 all, because you are not sure which of them is from the

    7 premises.

    8 JUDGE JAN: There is a discrepancy also about the number of

    9 documents, but that is a matter which has not really

    10 come up. I think 28 or 31, something like that,

    11 I forget now. I am just speaking from memory, but there

    12 was a discrepancy about the number of documents also.

    13 MR. NIEMANN: I addressed all of this in my chain of evidence

    14 submissions.

    15 JUDGE KARIBI-WHYTE: Yes, but it depends on the contents

    16 which have to be discussed.

    17 JUDGE JAN: If you can find an answer to this problem

    18 tomorrow morning.

    19 MR. NIEMANN: I envisage at this stage I will be recalling

    20 all these officers. I think I need to recall all of

    21 them.

    22 JUDGE KARIBI-WHYTE: The Trial Chamber will now rise and

    23 meet again at 10.00 tomorrow morning.

    24 (5.30 pm)

    25 (Hearing adjourned until 10.00 am the following day)