1 Friday, 10 March 2006
2 [Open session]
3 --- Upon commencing at 10.06 a.m.
4 [The accused entered court]
5 JUDGE AGIUS: Good morning, Madam Registrar. Could you call the
6 case, please.
7 THE REGISTRAR: Good morning, Your Honours. This is case number
8 IT-03-68-T, the Prosecutor versus Naser Oric.
9 JUDGE AGIUS: I thank you, Madam.
10 Mr. Oric, can you follow the proceedings in your own language?
11 THE ACCUSED: [Interpretation] Good morning, Your Honours, ladies
12 and gentlemen. I can follow the proceedings in my mother tongue.
13 JUDGE AGIUS: I thank you, and good morning to you. You may sit
15 Appearances for the Prosecution.
16 MS. SELLERS: Good morning, Your Honours. I'm Patricia Sellers
17 for the Prosecution. With me today is Mr. Gramsci Di Fazio, co-counsel,
18 and our case manager, Donnica Henry-Frijlink. And I would like to say
19 good morning to the Defence.
20 JUDGE AGIUS: I thank you, Madam, and good morning to you and your
22 Appearances for Naser Oric.
23 MS. VIDOVIC: [Interpretation] Good morning, Your Honours. Good
24 morning to our friends from the OTP. My name is Vasvija Vidovic, and
25 together with John Jones I appear on behalf of Naser Oric. And with us
1 this morning is our legal assistant, Ms. Adisa Mehic.
2 JUDGE AGIUS: I thank you, Ms. Vidovic, and good morning to you
3 and your team.
4 Let me start because it is already irking my eye. I don't like
5 the whole set-up. There is too much distance separating the accused from
6 his counsel. I know that there is some kind of security rule or procedure
7 in force relating to the exchange of documents between counsel and the
8 accused, and I know that the officers here have got strict instructions
9 which I would never even think of interfering with because they are
10 security based and issued. However, I want to make sure that there is a
11 way in which the accused can communicate with his counsel without --
12 please, Mr. Oric. So -- I think it's in 2006 in the peak of technological
13 court development, it's unheard of that the accused has to draw our
14 attention that he needs to give a piece of paper to his counsel.
15 [Trial Chamber and registrar confer]
16 JUDGE AGIUS: If I remember the instructions well, you're not
17 allowed to be emissaries or ambassadors for -- I know I am correct. So
18 sometimes when there is proximity it's done. One doesn't have to abandon
19 his chair.
20 So I -- let's proceed. But I need you, Madam Registrar, to look
21 into this. Maybe if it's -- if it's just a light that he can switch on
22 which will alert you to the fact that he has got some piece of paper. I
23 don't know. But in these -- in these days, that should be easily --
24 easily solved. All right. That's number one. But it immediately struck
25 me. I mean, I would find it very inconvenient for me as a Defence counsel
1 to be so detached from the accused. That's number one.
2 Number two, there were -- there have been some developments since
3 the last time we met. One relates to the extension of the word limit for
4 the purpose of the final briefs. I have decided that, and I asked my
5 staff to communicate our decision beforehand to you so that you would not
6 need to wait and labour with uncertainty. So there has been -- the limit
7 has been extended, as per the order that I have signed.
8 The other thing is the -- the Prosecution, due to some mistake,
9 basically, in the filing of the written statements of three witnesses that
10 I need not mention the name of, pursuant to Rule 92 bis, the filing
11 included some material that had been redacted on previous occasions, and
12 it was filed in a non-redacted form. I take it that there was an
13 exchange -- there has been an exchange between you and that there is no
14 problem -- if you confirm to me that there is no problem, then I can
15 proceed with the filings later on this morning.
16 MS. VIDOVIC: [Interpretation] Yes, Your Honour.
17 JUDGE AGIUS: Then there also has been two other issues that were
18 brought up to our attention. One is a document that was filed by the
19 Defence alleging a further eleventh hour sort of violation of Rule 68. I
20 take it, at least from the information that I have, that you wanted to
21 take advantage of this -- today's sitting to make oral submissions in
22 addition to what is contained in the filing. Of course you're free to do
23 so, but please try to limit your oral submissions to five minutes and then
24 you will have either the right to respond to it in writing or orally or
25 today, as you prefer. Who wishes -- would like to address this from your
2 MR. JONES: Well, yes, Your Honour, I will be addressing this
3 issue, and I certainly won't need to develop what's in the notification at
4 any length. I think it speaks for itself. It's really taking, as Your
5 Honour said, advantage of today's sitting for a clarification really from
6 the Prosecution, because my submission is that an explanation is called
7 for and -- but I'll come to that in due course. But I certainly would
8 only be a few minutes.
9 JUDGE AGIUS: All right. I thank you.
10 Yes, Ms. Sellers, if you wish to address -- I'm not forcing you to
11 address this matter orally today because you do have a right to address it
12 formally in writing, in which case the matter will be considered closed in
13 the written form and then we will decide it accordingly, but it's up to
15 MS. SELLERS: Your Honour, we're prepared to address the issue
16 orally today. We would reserve our right that if subsequent written
17 filing were necessary --
18 JUDGE AGIUS: Yes, please go ahead.
19 MS. SELLERS: As long as we have the adequate time limit. Thank
21 JUDGE AGIUS: Yes, you can address it now if you want.
22 MS. SELLERS: If I understood correctly, I thought the Defence
23 wanted to raise the matter and then we would reply to them.
24 MR. JONES: I understood this would be in the -- later in the day.
25 I can certainly --
1 JUDGE AGIUS: Let's do it now and then we concentrate on the rest.
2 MR. JONES: Yes. Well, Your Honour, we did indeed file last
3 Friday, I believe it was, 3rd of March --
4 JUDGE AGIUS: I think so, yes.
5 MR. JONES: -- 2006 notification of a grievous violation of
6 Rule 68.
7 In summary, on the 1st of March, after the last witness had
8 testified, we received this CD which contained 400 pages of documents,
9 including tens of orders issued by Nurif Rizvanovic as the commander of
10 the Drina Division in the whole region covered by the indictment,
11 Bratunac, Srebrenica, Vlasenica, Zvornik, in which he's issuing orders,
12 receiving reports and basically acting as an autonomous military commander
13 in that area.
14 We drew attention to the fact that in the Prosecution's pre-trial
15 brief they allege that the accused, our client, exercised supreme military
16 control over the soldiers in the municipalities of Vlasenica, Bratunac,
17 Srebrenica, Zvornik, and that our client was the only person who had
18 control over the soldiers in the area and that he took all decisions
19 affecting the military.
20 In light of that we say it's absolutely clear that this is
21 exculpatory material because it detracts, significantly detracts from that
22 theory of the Prosecution and that therefore this is Rule 68 material.
23 Now, nothing, in our submission, is more dangerous to a fair trial
24 and nothing more troubling on the part of the Prosecution than to have
25 exculpatory material withheld. We submit that this material was clearly
1 in the possession of the Prosecution and not just in the possession but in
2 the actual knowledge of the Prosecution. And in our filing we explain why
3 we say that, namely, that the annex to this material shows that material
4 has been analysed, the ERN numbers are the same ERN numbers as exhibits
5 which have been used in this case, and that therefore it's clear that what
6 has happened is the Prosecution had these 400 documents and that they
7 simply went through at some stage and decided to select one or two or
8 three which they thought they could use in this case, and then simply put
9 the rest aside for, I don't know, a year, two, or three years, and then at
10 the very last day of the trial, after the very last witness, submitted
11 this material. And that to us is -- and we use the word scandalous,
12 because it's hard to imagine something more in breach of the right to a
13 fair trial than for the Prosecution simply to sit on this material and
14 then hand it over at the eleventh hour.
15 The reason why we raise this today and why I say that an
16 explanation is called for from the Prosecution is that, in my submission,
17 there are five questions which the Prosecution needs to answer. Firstly,
18 when did they get this material; secondly, where did they get this
19 material from, what's the source; thirdly, do they say that this material
20 is not exculpatory, notwithstanding the fact that, as I say, it goes
21 completely against their thesis that the accused was the sole commander in
22 the area; if they concede that it is exculpatory -- well, let me put that
23 differently. If it is -- if they say it's not exculpatory, then what
24 about those paragraphs in their pre-trial brief? Are they still standing
25 by those submissions or are they retracting them; and if they concede that
1 this material is exculpatory, then why was it disclosed on the 1st of
2 March, 2006, rather than several years ago?
3 As I say, Your Honour, in the filing we, to a certain extent,
4 threw up our hands and said, well, there's nothing we can do with this
5 material at this stage, and we simply reserve our rights on appeal. But
6 since we are here, I think it would be useful for all of us to have an
7 explanation from the Prosecution, particularly as this may -- or almost
8 certainly will arise on any subsequent appeal.
9 Thank you, Your Honour, unless I can assist you further.
10 JUDGE AGIUS: I thank you, Mr. Jones.
11 Yes, Ms. Sellers, or whoever is going to be addressing this
13 MS. SELLERS: Your Honour, I will be addressing this matter, if
14 you will just give me two seconds.
15 Your Honours, the Prosecution does take the Defence allegation of
16 Rule 68 violation extremely serious. And they've called it a grievous
17 violation. They haven't asked the Trial Chamber to do anything, to make
18 any ruling, to take any action. They intimate that they will carry their
19 burden to the Appeals Chamber. Therefore, the Prosecution would like to
20 answer those questions and make the following submission.
21 Firstly, primarily, the Prosecution has not committed a violation
22 of Rule 68 in regard to the documents that the Defence refers to as the
23 Rizvanovic documents. The central allegation of the Defence is that the
24 material shows that Commander Rizvanovic is the overall commander of
25 Bratunac, of Vlasenica, Zvornik, and Srebrenica, and that Naser Oric, as a
1 commander of the Srebrenica armed forces was but a subordinate in the
2 chain of command, not the overall. This is what the documents, if one
3 looked at them, would purport to say. The Prosecution's case has always
4 been that Naser Oric was in the chain of command under the 2nd Corps that
5 was based in Tuzla. If the Defence now agrees that the Rizvanovic
6 documents confirm the Prosecution's case that Rizvanovic was one of the
7 intermediate commanders of Naser Oric, not only is that not exculpatory;
8 rather, it inculpates Naser Oric.
9 The Defence have construed their Rule 68 allegation around, on the
10 one hand, a geographical premise that goes back to the Prosecution's
11 pre-trial brief. If Your Honours would take the time to look at some of
12 the documents that the Defence received, they will see that the
13 construction begs the question of content and possibility of the answer
14 having been misleading.
15 Could we go back to the Prosecution's pre-trial brief. I would
16 ask you to look at Sanctions, Your Honour, and we can go back to
17 paragraph 121 of the Prosecution's pre-trial brief.
18 Your Honours might notice that the Defence has pulled out
19 paragraph --
20 JUDGE AGIUS: One moment, one moment because we are not getting
21 Sanction. No, it should be this one but it says no connection -- it's
22 come on now, come on now, yeah, okay. That's the one. But there was no
23 connection until a second ago or two seconds ago.
24 MS. SELLERS: Certainly. If Your Honours look at paragraph 121
25 that the Defence has pulled out, noting that Naser Oric --
1 JUDGE AGIUS: You have a problem? One moment. Excuse me one
3 Yes, the -- yours is good. Is it okay now? All right. Okay.
4 The problem was it was out of focus, blurred, and Judge Eser couldn't read
5 it. So -- but it's legible now.
6 MS. SELLERS: Your Honour, you see that in paragraph 121 of the
7 Prosecution pre-trial brief that: "Naser Oric was the only person who had
8 control over the soldiers in the area. He took all decisions affecting
9 the military."
10 I believe that's the source that the Defence has quoted. If one
11 would look at that paragraph in its entirety and particularly the
12 footnotes that it indicates, we might receive a explanation of what is
13 meant by the only person who had control of the soldiers in the area.
14 One of the footnotes is reference to Prosecution Exhibit 109.
15 That is the B/C/S of 109, Your Honour, now the English of 109, and if one
16 looks in the first paragraph it says: "At the meeting of the Crisis Staff
17 of Srebrenica TO on the 1st of July, 1992, three decisions were made for
18 solving some of the problems in the current situation on the territory
19 controlled by the Srebrenica TO forces."
20 That is the area that paragraph 121 is referring to.
21 Paragraph 121 starts with the date of July 2nd. If one would look just
22 further down on the same document where we see in the last two paragraphs
23 it talks about Hamed Salihovic, it's the only time that we see that the
24 chief of communications will be involved with both the municipality of
25 Srebrenica and Bratunac. So communications information from Srebrenica to
1 Bratunac, there is no hint -- as a matter of fact, it's been the Defence
2 case that Naser Oric did not have any control over other sessions, and
3 it's been the Prosecutor's case that up until a certain time period Naser
4 Oric controlled an area based upon that of the Srebrenica TO.
5 Your Honours, the Defence then refers to paragraph 110 of our
6 pre-trial brief. If we can go to paragraph 110, and we'll note the first
7 sentence in paragraph 110. "The Prosecution alleges that Naser Oric
8 exercised supreme military control over the soldiers in the municipalities
9 of Vlasenica, Bratunac, and Srebrenica."
10 Again, the central allegation of the Rule 68 violation. I would
11 ask that Your Honours remember that paragraphs 24 through 27 place into
12 context paragraph -- the first sentence of paragraph 110. Paragraphs 24
13 to 27 give a chronology, and it notes that: "In early November of
14 1992" -- I believe that would be -- "upon its creation in early November
15 1992, Naser Oric was appointed the commander of the joint armed forces of
16 the sub-region. His command encompassed the geographical regions of
17 several municipalities, namely, Srebrenica, Bratunac, Vlasenica, Zvornik,
18 in Eastern Bosnia."
19 That is the content of the first sentence in 110. Because we have
20 been told that Rule 68 violations have occurred because the Prosecution
21 always said that Naser Oric was always the supreme military commander of
22 these areas, we really have to distrust the premise, but I would like to
23 take the Trial Chamber to a couple of the documents that have been
24 disclosed to the Defence in relationship to their supposed finding of
25 Rule 68 material.
1 One document that they hold up as a prime document has the ERN
2 number that ends with 0211054. They've placed this on one of the top
3 paragraphs of their motion.
4 MR. JONES: Sorry, which paragraph number is this? There is no
5 top paragraph as far as I'm aware. If we can have a number so we can
7 JUDGE AGIUS: She said ERN 0211054.
8 MR. JONES: Yes, but a paragraph number. It's very hard to follow
10 MS. SELLERS: Your Honour, I believe it is --
11 JUDGE AGIUS: Top --
12 MS. SELLERS: I believe it's paragraph --
13 JUDGE AGIUS: In the initial ones, I think.
14 MS. SELLERS: Yes, I believe it's paragraph 7, if you would just
15 give me one second.
16 I'm sorry, Your Honour, it's in paragraph 2.
17 JUDGE AGIUS: Paragraph 2, Mr. Jones.
18 MS. SELLERS: Yes, where the last sentence says: "In terms of
19 Mr. Rizvanovic, he communicated with the 2nd Corps in Tuzla in that
20 capacity, that he issued orders to the accused, I imagine the reference to
21 Naser Oric, thereby treating him as his subordinate."
22 If we would go to the document they are citing to. It's a
23 document that ends in ERN number 0054. We'll put that up on Sanctions for
24 Your Honour.
25 We're having problems with Sanctions. Can I ask your indulgence
1 for one or two seconds?
2 JUDGE AGIUS: Certainly.
3 MS. SELLERS: Your Honour, let me confer with my case manager.
4 [Prosecution counsel confer]
5 MS. SELLERS: Your Honour, until Sanctions comes back up, is there
6 any way that we might be able to use the ELMO?
7 JUDGE AGIUS: I suppose so.
8 MS. SELLERS: And maybe --
9 JUDGE AGIUS: Usher, if you could assist the ...
10 [Trial Chamber confers]
11 MS. SELLERS: Your Honour, I would apologise to the extent that
12 you see that there is some writing on the document, and that was writing
13 that's work product, but we certainly don't mind sharing it with the Trial
15 This is the English translation of the document that's cited to in
16 the first paragraph. This is where Naser Oric is being treated as a
17 subordinate, and if you will notice that the document is a call for
18 certain commanders to attend a meeting. And it's the commander of the
19 Vlasenica Brigade, the Zvornik Brigade, commander of the municipal
20 Territorial Defence staff, Naser Oric. And we see that companies and
21 commanders from Urkovici, other places that we've heard testimony about,
22 have been called. If we note that the date on this document is the
23 25th of September, hence Naser Oric being ordered, called to come to a
24 meeting as a subordinate. And if we just move the document up a bit
25 further we can see the signature on the document, Commander Nurif
2 Well, first of all, Your Honour, we would like to note this
3 calling of the military meeting that this document is talking about
4 commanders, talking about Naser Oric as a commander. Certainly not
5 exculpatory. It appears to me to be more inculpatory.
6 I would now like to go to Prosecution --
7 JUDGE AGIUS: This is document number -- exhibit number?
8 MS. SELLERS: This is ERN -- it's not an exhibit, Your Honour.
9 JUDGE AGIUS: Oh, I see. It's not -- yeah, but it was disclosed?
10 MS. SELLERS: Yes, Your Honour. This is part of the disclosure
11 that the Defence is contesting.
12 JUDGE AGIUS: Just to make a note of it, can I ask you to repeat
13 the ERN number, Ms. Sellers, please --
14 MS. SELLERS: Certainly. The ERN number is 02110054.
15 The Prosecution would like to show the Trial Chamber the contents
16 of this document and thereby would like to see Prosecution Exhibit 137.
17 That is in Sanctions, as I understand. We have it in English also.
18 Now, if Your Honour would note, and it's a bit difficult to see,
19 is that this is a letter now from Commander Rizvanovic to Naser Oric,
20 commander of the Srebrenica armed forces, discussing, as a matter of fact,
21 about the meeting. He says: "Congratulations on the magnificent success
22 in liquidating Chetnik strongholds in Podravanje," which we remember in
23 our evidence as around the 25th of September, "and sincere congratulations
24 on your being recognised as the supreme commander of the armed forces."
25 In regards to the meeting, if you look at his language: "It would
1 be good if you came to the meeting. It would be best to resolve these
2 issues in a joint meeting on Friday, the 2nd of October."
3 It also talks about: "I'm expecting a shipment of weapons,
4 medicines, and ammunition. It's up to you, commander, to decide if this
5 is a priority."
6 And then in addition, he talks about persons that he is sending
7 them. He concludes by saying: "There area number of other issues that we
8 need to resolve and this could be done if we discuss them and lay down
9 common guidelines."
10 Now, Your Honour, whether subordinate or a commander, this is a
11 document that certainly is not exculpatory.
12 Your Honour, we would just like to briefly continue on. Another
13 document that was given to the Defence that they have mentioned in their
14 notification - not motion - is document with ERN number 12110291 -- I'm
15 sorry, it's 02110291. And it's a document which shows subordinate forces
16 of the armed forces. And if we look in the document, we note -- Your
17 Honour, we would have to just go a couple of pages. We're looking for the
18 name Velid Sabic. Now, Velid Sabic is the commander of the 114th Brigade.
19 The date on the document, Your Honours might note, September 9th. Defence
20 is saying: Well, aha, proof, Velid Sabic was a subordinate to Mr.
21 Rizvanovic, the Prosecution theory is flawed. Your Honour, we would like
22 to remind the Trial Chamber again, yes, Velid Sabic was a commander, as we
23 have alleged and some of the Defence witnesses have tried to deny. And we
24 would like to take Your Honours to P80, one of the Prosecution exhibits,
25 and in particular to the last page of P80.
1 Your Honour, if you notice in the middle, we have the name Vejiz
2 Sabic, brother of Velid Sabic. We've had testimony from Defence witnesses
3 on that as to how they exchanged commands of the 114th Eastern Bosnian
4 Brigade. And that was the date, beginning on November 1992, a sub-region
5 was formed and then the Prosecution's case is that these men came under
6 Naser Oric. The documents are compatible. The documents do not
7 exonerate; the documents inculpate.
8 We'd like to go now to the next set of documents where the Defence
9 has said proof that Nurif Rizvanovic was the one who was in control. He
10 was appointing people. He was appointing people captains, giving out
11 ranks. One will notice in that series of documents that no one from
12 Srebrenica was given a rank, but it's possible that there are other
13 documents that exist where Nurif Rizvanovic gave members of the Srebrenica
14 armed forces or TO ranks. We're not alleging that. We're saying: Let's
15 look at some of the ranks that were handed out.
16 I'd ask you to go to a document that has ERN number 02109958. In
17 the English version, you'll notice that Nurija Fejzic was given a rank.
18 It says that he was promoted to the rank of courier in the armed forces of
19 Bosnia-Herzegovina, the rank of courier, very much in keeping with the
20 Prosecution's case of the different functions that existed in brigades and
22 Now, the fact that Nurif Rizvanovic is making these appointments
23 is also harmonious with the Prosecution's case in that we believe that
24 that is what commanders do, and we've shown documents that that is exactly
25 what Naser Oric has done within the Srebrenica armed forces.
1 We'd like to go to the next document, Rule 68 document supposedly,
2 ERN number 02110325, and here -- I'm sorry --
3 JUDGE AGIUS: That's not the one I'm seeing on my monitor.
4 MS. SELLERS: Your Honour, we're going to go to the next one --
5 JUDGE AGIUS: All right. Now I see the one that you were
6 referring to.
7 MS. SELLERS: Your Honour, this document, as the Defence has told
8 us, proof of command, proof of Nurif Rizvanovic's overall command because
9 he is negotiating with the VRS as a commander. Well, let's look at these
10 negotiations. Here the commander is talking to the VRS as a commander,
11 supposedly Naser Oric's commander. Because this is Rule 68, if we look
12 under subsection 2, what does a commander discuss? Corridors for
13 humanitarian aid, observation of the principles of the Geneva Conventions.
14 Very much in keeping with the Prosecution's case, if this was the
15 superior -- if this were the superior of Naser Oric, then he had someone
16 to talk to the Geneva Conventions about much earlier on.
17 Your Honour, this document in no way is Rule 68 material.
18 We would like to go to the next document ERN number 02110331 where
19 the Defence has reminded us in paragraph 11 that Rizvanovic issues a great
20 variety of orders on the 17th of October, 1992, to arrest Hamed Husic from
21 Glogova. That's where he's from. Certainly can't tell by the document if
22 that's where he is, whether he's stationed there, whether he's a soldier
23 there, or maybe in Konjevic Polje.
24 Let's look at that document. As a matter of fact, as a commander,
25 he will imprison Mr. Husic for a period of ten years due to attempted rape
1 of a minor person, and when normal conditions have been met for conducting
2 the court proceedings, he will be brought before the people's court, that
3 will possibly increase the sentence. Yes, acting as a commander; no, this
4 is not a document that is exculpatory.
5 Your Honour, if we could go to another document, and that will be
6 document 02110278.
7 Your Honour, one minute, please.
8 [Prosecution counsel confer]
9 MS. SELLERS: Your Honour, I do want to say that other documents
10 have been presented, documents showing the setting up of a prison in
11 Kamenica, that the Defence also talks about in paragraph 11, not set up by
12 Nurif Rizvanovic but by a commander in Kamenica. The Prosecution
13 certainly agrees, yes, you can set up prisons, you can punish people, you
14 can detain people. As a matter of fact, that prison set up not just for
15 crimes but for disturbances. That's another document they refer to where
16 Semso Salihovic is mentioned. Again, we would refer the Trial Chamber to
17 P80 showing when he came under Oric in the sub-region and another document
18 that mentions a phenomenon called the intervention platoon. Intervention
19 platoons were part of the different units and brigades of the ABiH.
20 The document we have before us now is important because in this
21 document it says that Srebrenica will send 200 men to partake in a battle.
22 Is this an order from Nurif Rizvanovic ordering Naser Oric to send 200
23 men? If we go down the document and we look under number 7, Your
24 Honour: "200 fighters for the same assignment and the same dead-line."
25 Your Honour, this is an attack that within the document you see is
1 to be around the 12th of October, the latest dead-line would be the 1st of
2 November. If we go to the end of this document, let's see who signs the
3 document. Commander of the armed forces Vlasenica, Kamenica, Bajrici, and
4 Kalesija. There is no name of Nurif Rizvanovic signing the document.
5 Possibly he asked or ordered someone else to do that.
6 But, Your Honour, I would now ask you to look at some contents of
7 this document, and for that could we go to document number 02110329 --
8 MR. JONES: Your Honour.
9 JUDGE AGIUS: Yes.
10 MR. JONES: May I -- I have grave concerns about the way this is
11 being presented, and certainly I'm going to have to respond at length to
12 this. I understood that this was a question of -- of a brief submissions.
13 The fact is there are 400 documents. If the Prosecution is going to go
14 through 400 documents and explain how they interpret those documents, then
15 we would have to go through the same exercise and point out all the.
16 JUDGE AGIUS: I agree.
17 MR. JONES: -- exculpatory ones -- The exercise is utterly futile,
18 and it should be witnesses who talked about this and not Patricia Sellers
19 telling us how she interprets these documents. That's the whole point.
20 There are all sorts of ways to interpret these documents.
21 JUDGE AGIUS: I agree with you that this went beyond what I
22 personally was expecting. I thought there was going to be a brief
23 submission in responding to what had been pointed out or submitted by
24 Mr. Jones and then we would look into the matter, but it has to turned out
25 that it has not answered any of the questions that he put, except the one
1 on whether you consider this material to be exculpatory or not and that
2 you are going into great detail with the result that the whole idea, the
3 whole exercise, that I had in mind for today would be defeated. In other
4 words, I would still have to give the Defence the opportunity to respond
5 in writing because obviously you -- I can't expect you to be prepared to
6 respond orally to all this --
7 MR. JONES: It's -- it's all also this point, Your Honour --
8 MS. SELLERS: Your Honour, if I might respond prior to now Defence
9 counsel responding, and since we've already discussed one issue.
10 JUDGE AGIUS: I suggest we stop here and you proceed with a proper
11 filing and we take it up from there. He will have the opportunity to
12 respond. Because this is not what I meant. I thought you would have a
13 very simple explanation saying that you do not consider this to be
14 exculpatory or you consider it to be exculpatory and come up with an
15 explanation. I don't know. But certainly not to have a full-scale
16 submission on each and every document explaining why you do not consider
17 it to be exculpatory. I mean, if we need submissions on that, we will
18 come back to you ourselves after we have seen what we will now ask you to
19 file in writing. I think that's the only way of proceeding.
20 MS. SELLERS: Your Honour -- yes. Your Honour, I have no problem
21 with that. Might I just state one thing for the record?
22 JUDGE AGIUS: Yes.
23 MS. SELLERS: As we said in the very beginning, we take these
24 allegations very seriously.
25 JUDGE AGIUS: Very seriously. Yes, I agree with you.
1 MS. SELLERS: And that is the reason that we wanted to provide,
2 even orally, a thorough answer. I have no intention of going through 400
3 documents. It seems to me that the Defence has assured itself that all of
4 the 400 documents, from their analysis, not witness analysis, their
5 analysis is Rule 68. It is only beholding on the Prosecutor to be as
6 thorough in their response.
7 What I would suggest, Your Honour, is that at this time point I
8 have just very few other documents. We will not look at those, but we
9 will submit in writing. I do not intend, neither, within our written
10 submission, Your Honour, to go through 400 documents. I believe that Your
11 Honour understands that our principal response is that this is not
12 Rule 68, and I thought that was the most important question.
13 JUDGE AGIUS: Right.
14 MS. SELLERS: As to the other questions, Your Honour, we can
15 respond to those in writing.
16 JUDGE AGIUS: Yes, certainly.
17 MS. SELLERS: And I thank you for the time you have allotted me.
18 JUDGE AGIUS: No, I thank you, Ms. Sellers, for being so thorough,
19 actually. But you understand that our expectations were somewhat --
20 somewhat different. We did not expect you to deal with this matter,
21 taking the whole time we had dedicated for other matters.
22 Yes, Mr. Jones.
23 MR. JONES: Yes, Your Honour, if I may respond briefly, because
24 it's not -- we certainly don't object to thoroughness on the part of the
25 Prosecution in responding. The point is a methodological one. That there
1 are 400 documents and of course unless every 400 documents [sic] is
2 presented to Your Honours and you have the English version and you can go
3 off and look at it, then of course a selective exercise doesn't address
4 the point. Because if the Prosecution show you 50 and they say: Well,
5 these are not exculpatory. Well, what about the other 350?
6 JUDGE AGIUS: No, of course.
7 MR. JONES: So by definition that whole process is not useful.
8 If I might just make a couple of remarks generally in response to
9 the submissions by Ms. Sellers this morning.
10 You might have felt that you were -- that the closing arguments
11 had started at this stage, Your Honour, by hearing these submissions
12 because these are submissions about how to interpret a document, how it
13 fits in or doesn't fit in with other witness testimony. And, Your
14 Honours, that's the whole point, that Your Honours should have these
15 documents --
16 Your Honour, I'll wait until Your Honours are finished
18 [Trial Chamber confers]
19 JUDGE AGIUS: Yes, sorry, Mr. Jones, for cutting you like that.
20 Go ahead, please.
21 MR. JONES: Yes. Your Honour, that's -- precisely the point is
22 that if I were Your Honours I would feel very troubled going off to the
23 final deliberations knowing that these 400 documents are out there and
24 which Your Honours haven't had the chance to see, which you haven't had
25 witnesses commenting on. And the reason why the approach of the
1 Prosecution is so troubling is that essentially Ms. Sellers is saying:
2 We've looked at this - and I don't know if this is an exercise which
3 they've done in the last day or two or if they've done it months ago -
4 but we've looked at this, and on our interpretation, and let's face it,
5 that's a prosecutorial interpretation, there are elements of some of these
6 documents which support our case, and therefore we're not going to
7 disclose the documents at all. They're not exculpatory. That is
8 fundamentally misconceived.
9 Your Honours know the case very well. You know the evidence which
10 has been given, detailed evidence by tens of witnesses about this group
11 and that group, Jezestica, which groups Ejub's fighters, Nurif's fighters,
12 Ferat Hodzic's group. We've gone into these issues in extreme detail.
13 And Your Honours know the thoroughness with which we've presented the
14 exhibits. We've presented more than a thousand exhibits. We've gone into
15 immense detail showing how different groups were based in different areas,
16 how they weren't part of any command by the accused. And Your Honours
17 know full well that every single one of these documents we could have
18 shown to witnesses and we could make submissions just as Ms. Sellers has
19 been doing but throwing a completely different light. And that's why it's
20 so objectionable for Ms. Sellers to say: Well, in our view, this isn't
21 exculpatory and so we don't disclose it.
22 The whole point of Rule 68 disclosure is they give us the
23 documents, we analyse them, we decide which ones to use, and then we
24 present them, witness gives a comment on them, and then Your Honours have
25 the assurance of knowing that that evidence has been digested by the
1 Defence and has been used properly. On the Prosecution's approach, they
2 would simply sit back and keep these documents because, in their view,
3 there are elements which support their side of the case.
4 Now, Your Honour, I do have some remarks still to make. I see
5 Ms. Sellers on her feet, but if I can finish --
6 JUDGE AGIUS: Go ahead, Mr. Jones, finish what you have to say and
7 then I'll give the floor to Ms. Sellers and close the argument there.
8 MR. JONES: Right. Well, Your Honour, what's also interesting
9 about the submissions of Ms. Sellers is that she's been pointing to --
10 it's been a very selective presentation, first of all. It's only certain
11 documents and it's certain parts of the documents which she's drawn your
12 attention to. And then her approach has been to say: Well, this supports
13 our case in some way or is incriminating. Well, if incriminating, they
14 would have used it. They've used P137. They've used - I believe it is -
15 and P82. They've used a couple of documents from this collection, and so
16 I certainly wouldn't give any credence to the notion that the Prosecution
17 consider these documents very incriminating. If they were, they certainly
18 would have used them.
19 Now, Your Honour, just generally, I do have some general remarks
20 that in my submission it's extraordinary that the Prosecution is taking
21 this position that these documents shouldn't have been disclosed under
22 Rule 68 and that Your Honours know the case and that any reasonable person
23 who has followed this case will know full well the use which we could have
24 made of these documents and that they're exculpatory. And the Prosecution
25 is taking that position because in fact that really is the only position
1 they can take that it's not Rule 68 otherwise it is such a clear and
2 blatant violation that it would be a very serious matter.
3 Now, Ms. Sellers said that our position is that our client was
4 not a -- was in -- I had difficulty actually understanding her submission,
5 but it was -- it was that we accepted that our client was in a chain of
6 command and whether Nurif is above him in the chain of command or below
7 him is a matter of insignificance, according to the Prosecution. Well,
8 firstly, again, Your Honours, that's not fair to --
9 JUDGE AGIUS: You're following in the same mistake that you
10 criticised Ms. Sellers for, because this again is -- I think should form
11 part of the --
12 MR. JONES: Oh, I simply want to make our case clear. What I was
13 going say, Your Honour, is that Your Honours are perfectly well aware of
14 what our case is. Our case is that there was no chain of command. There
15 was a total -- a state of total disorganisation and chaos. And the fact
16 that Rizvanovic is issuing orders to our client, we don't say: Well, that
17 shows there was a chain of command but that there was someone above our
18 client at all, we say that Mr. Rizvanovic appeared in the area and started
19 issuing orders and purporting to exercise a command, and the document you
20 saw was headed and ordered by Nurif Rizvanovic to our client. Ms.
21 Sellers's approach was to say: Oh, well, since in that document it refers
22 to the accused as a Srebrenica commander, that fits in with our case, and
23 therefore it's incriminating, it's not exculpatory, so no need to disclose
24 it. That's patent nonsense. If you look at that document, it's an order
25 from someone, it appears to be our client, and of course, of course, we
1 should have had that document.
2 Your Honour, just a few final remarks, if I may.
3 Your Honours are also aware that the places in the indictment,
4 Kravica, Jezestica, Fakovici, Bjelovac, are all in Bratunac municipality,
5 they're not in Srebrenica, and do you know how much evidence has been
6 given about Nurif's men coming into the area, their involvement in
7 Jezestica in 1992, that Nurif's men are the only ones who had uniforms, or
8 we had these 400 men with uniforms, and we have witnesses speaking about
9 uniforms. Obviously an independent commander reporting to Tuzla, not
10 under the accused's control is highly probative, highly relevant for our
11 contention that any of these acts could have been committed by his men.
12 And now, Your Honour, I don't propose to get into the sort of
13 argument which Ms. Sellers was suggesting this morning where she would now
14 say: Ah, yes, but this document can be considered in this other sense
15 and if you read this document in conjunction with another document, you'll
16 arrive at a different conclusion. We should not be having that discussion
17 because we should have had the documents, we should have been showing them
18 to witnesses during the trial, and then we would make those arguments at
19 closing. But having witness commentary, having those documents in
20 evidence, as it is those 400 documents are out there, Your Honours don't
21 have them, Your Honours don't know the various ways they can be
22 interpreted, and in my submission, that is extremely, extremely worrying,
23 and I submit the Appeals Chamber, if it comes to that, will certainly
24 consider this was exculpatory material, and they will judge the
25 Prosecution very harshly for not coming clean and admitting that this was
1 exculpatory material. And we will certainly demonstrate that in due
3 Your Honour, there's a lot I would like to say, but we're short of
4 time so I'll stop there
5 JUDGE AGIUS: That's enough. I invite you not to say much,
6 Ms. Sellers, so hat we close on the chapter and move to the business that
7 we supposedly came here for.
8 MS. SELLERS: Certainly, Your Honour. I would just like to
9 restate that we don't believe this is a Rule 68 violation and that one has
10 to be selective, and that the issue is a Rule 66(B) disclosure in terms of
11 timeliness. Thank you
12 JUDGE AGIUS: All right. I thank you.
13 The other thing I wanted to put on record is that the -- we have
14 been informed that the Defence has filed the document that they
15 had "promised" some time ago relating to their position on the Prosecution
16 exhibits and the authenticity aspect. I do want to -- I've only seen a
17 courtesy copy of it, although I have already got saved on my computer.
18 And I do want to acknowledge publicly here the work that has been
19 conducted by the Defence. I am sure you will all agree with me that not
20 only is it thorough but it will help the Trial Chamber greatly later on
21 when we come to the stage of examining each and every exhibit we have in
22 this trial, not only the Prosecution exhibits, but also the Defence
23 exhibits. So I publicly thank you on behalf of the three Judges for
24 your -- for your work and also for the document, which I'm sure we will
25 find very useful.
1 And we come to the rest of the -- today's agenda. And I would
2 start straight away with what appears to be still somewhat controversial
3 between you, and that's P598. We have taken the trouble to examine the
4 two documents, and I am going to suggest to you that basically the
5 differences that are still outstanding are a few, so I will just mention
6 them, and please limit your submissions to what I will be saying, unless
7 of course you've got other submissions that you think are relevant. And
8 of course, at the end of the day the important aspect whether -- point to
9 address is whether we do indeed have a new document or whether we have the
10 previous one with some alterations.
11 Now, let's start, and please do follow me in my very unorthodox
12 manner. This is the original version, and you will notice that the very
13 first page of that original version looks much like a -- an art work.
14 Half is black, and the rest of the page contains basically seven lines
15 which are repeated three times on that side of the page.
16 Now, if you look at the new proposed P598, you will see that those
17 seven lines, minus the last one, are included in the first page of
18 ERN 5208 in the bottom part of that page. There is one characteristic
19 that I need to point out, and that due to the faulty photocopying process
20 that was made use of, what was the first line in the previous, showing the
21 name of Samed Hasanovic is missing in this page. That's the first point I
22 wanted to make.
23 The rest of the page, in other words from -- you see the
24 word "Tabakovic" six lines or seven lines from the bottom of the new
25 document. If you start from the previous line right up to the top of the
1 page, ending with "Pale" in the centre of the page, that is new material.
2 It did not exist in the previous -- in the original document, in the first
3 page of the original document.
4 So the first thing or matter that you need to address is what's
5 going to happen with this first part of the first page of the new version.
6 It does mention Kemo as forming part of the Pale defence unit or call it
7 whatever you will. So I suggest that we start first by getting you to
8 agree with what I have stated about the existing differences and what we
9 can solve and with what we cannot solve. I think the last part, in other
10 words the inclusion of Samed Hasanovic should not present a problem to
11 either of you. In other words, Mr. Jones or Ms. Vidovic, I am suggesting
12 is, if you follow me, please.
13 MR. JONES: Yes, Your Honour.
14 JUDGE AGIUS: Is that at the bottom of the first page of the
15 revised after the name Mehmedovic, Ramiz, which is written upside down,
16 all right, there will be inserted in writing or whatever also upside down
17 the name of Samed Hasanovic and that would reflect, faithfully, any of the
18 three sections of the original P598. That's the first suggestion that I
19 am making.
20 MR. JONES: Your Honour, we don't want to make any concessions,
21 I'm afraid, because our position is that this page is a different page and
22 it has different information, different names, and it's a new exhibit that
23 the Prosecution is proposing to introduce. I'm afraid we don't --
24 JUDGE AGIUS: All right. I just wanted to know whether you would
25 be prepared to accept that or not.
1 Yes. Now, therefore the other matter that you need to address,
2 Ms. Sellers, is the first part of this document. Do you -- is it that
3 important for you that you intend to rely on it in any of your future
4 submissions, final brief, closing arguments?
5 MS. SELLERS: Your Honour, I think --
6 JUDGE AGIUS: Because if it's not, let's call it a day.
7 MS. SELLERS: Your Honour, I would want to be as practical as the
8 next person. The position of the Prosecutor is the following. We agree
9 with how you've described this first page being different from the first
10 page on the other document. We have tried to present to the Trial Chamber
11 that the document -- the first document was incomplete. As a matter of
12 fact, what we were trying to get was this first page. Now that the
13 document is complete and, in addition, it has another page that hadn't
14 been in the other document and they have cover pages that investigators
15 put on, that we want Your Honours to be able to evaluate a complete
16 integral document. Our position would be that the first page is important
17 for the integrity of the evidence and the document.
18 I believe that both the Prosecution and the Defence are quite
19 aware that names that are on that first page - and they brought it up in
20 their last submission - such as Kemo and such as Mirzet Halilovic are
21 important to this case. Now certainly, the Prosecution could say in a
22 matter of friendliness: Let's both agree not to use the first page.
23 There's other evidence of Kemo coming from Pale in other documents. I
24 understand the practicality side. But we do find it quite ironic in a
25 case that is trying to say: Documents have been tampered with, they're
1 not complete, that the Prosecution is now being asked not to try and
2 submit a document that is more complete in its nature. And to that
3 extent, the first page is very important.
4 JUDGE AGIUS: All right. So -- yes, Ms. Vidovic.
5 MS. VIDOVIC: [Interpretation] Your Honour, it is just the other
6 way around. I will be brief.
7 The first page is very important. It is very important, and it
8 should have been discussed with witnesses. Here we've had at least four
9 witnesses who could have provided an opinion on every detail of -- on this
10 page. This page has no been shown to any of the witnesses, for example,
11 D05, through which this document has been introduced. Moreover, the
12 Prosecutor is trying to convince us, and I understand that, that they have
13 tried to obtain all the documents, they have tried to complete this
14 document, but this is not true. They had two documents. There is 598
15 with the original, just the way that I saw when I inspected their
16 documents in the evidence unit. They also have another version that they
17 received from a lawyer in Belgrade a few years ago, and I don't know what
18 attempts they are trying to talk about. These are two different
19 documents. The second document is something that the Prosecutor has not
20 shown to the witness who could have provided us with a comment on that.
21 And it is not just the first page that is a problem; the second
22 page is also a problem, the second page they are trying to have admitted.
23 And if you compare the texts, and I really don't know on what basis is
24 Mrs. Sellers trying to say that this is page 1 and this is God knows what
25 page. She is trying to -- if you will just bear with me for a moment
1 because this second page is really important. She is trying to introduce
2 page 0295228. And if we look at the page that finishes with the
3 numbers 2577, you will see that this page speaks of the events that took
4 place in January 1994. And then what should have followed is the page
5 that describes the events in Fakovici in 1992. I really don't see any
6 logic here and this is not the way we can work.
7 In any case, none of these pages have been presented to the
8 witness. We're talking about a different document, and we will not accept
9 any proposals of the Prosecution to that effect.
10 Your Honour, let me just correct the number. It is 25227. This
11 is what it should read in the transcript.
12 JUDGE AGIUS: I think it's -- are you sure it's 227 and not 228?
13 Because the page that is in the new version, so-called new version,
14 which was not in the old -- in the original version is 5228, not 5227, and
15 it should have been between pages -- ERN 1864 and 1865 of the original
17 MS. VIDOVIC: [Interpretation] Your Honour, 5228 is the new page.
18 JUDGE AGIUS: Yes.
19 MS. VIDOVIC: [Interpretation] The new page. And a while ago I was
20 talking about the page that should have preceded it that speaks about the
21 events that took place in 1994.
22 JUDGE AGIUS: Yeah, yeah, but to us it is clear that basically
23 this page, which is now 5228, did not -- does not show -- does not appear
24 in the original document. And its place should have been between what
25 is 1864 and 1865, ERN numbers, for reasons that of course we don't
1 understand and no explanation has been forthcoming. It's -- now we have
2 it; then we didn't.
3 It's not the same with the other case, because if you notice in
4 the original document there was ERN 1855, which is missing in the new -- I
5 don't know if you have noticed this or not, but I have -- 1855 in the
6 original document has disappeared in the new version, and it should be
7 between pages 218, 217, and 219. And if you see the ERN sequence in the
8 new document, you will see that there is 217, then 218 is missing, and
9 there is 219. I'm not sure if I am being clear.
10 Look at the new version, Ms. Sellers, at least the one I have and
11 the one Judge Eser and Judge Brydensholt have does not contain 218, ERN
12 218. It's missing.
13 MS. SELLERS: Your Honour, then I believe that that is certainly a
14 mistake because I have --
15 JUDGE AGIUS: Yeah, yeah, but I mean to say this is why cutting it
16 down to real -- real terms --
17 MS. SELLERS: Your Honour, might I --
18 JUDGE AGIUS: We honestly understand how you didn't come to an
20 MS. SELLERS: Your Honour, might I say this: That I have, for the
21 purposes of this hearing --
22 THE INTERPRETER: Microphone, please.
23 MS. SELLERS: It is on. I thought I was shouting. Sorry.
24 I have brought the originals from the evidence unit just for the
25 purposes of this hearing and so I am looking at page 218 from the evidence
1 unit which clearly has the material, the chart-like material.
2 JUDGE AGIUS: Yes, yes, exactly, but that's missing in what we
4 Katarina, is it missing also in the formal exhibit tendered by the
5 Prosecution as a revised version?
6 [Trial Chamber and legal officer confer]
7 THE INTERPRETER: Microphone, please. Microphone for the
8 Presiding Judge.
9 [Trial Chamber and legal officer confer]
10 JUDGE AGIUS: So if you follow me carefully, if you look at the
11 revised version, okay, the new version, sorry, pages 13 of the English
12 translation, 13, 14, and 15, and the first part of page 16, that would be
13 the translation of the missing 218. All right. Of the missing 218. So
14 we do have the English version, but we do not have the Bosnian --
15 Serbo-Croat one. So that's easy. It can be replaced. It's obvious --
16 it's an obvious shortcoming. I mean, it's a mistake. But I wanted to
17 point that out.
18 They should have it because it -- yes, Mr. Jones.
19 MR. JONES: Yes. No, we note that point, Your Honour.
20 May I just add something to my learned friend's submissions, and
21 Your Honours, I think, have the point, but I have just counted there are
22 at least 12 names on this first page which are not in the other document,
23 and Your Honour did mention the other day that of course the prejudice to
24 the Defence of not being able to put to witnesses any questions about 12
25 names who may be important names. I understand the Prosecution now is
1 saying they don't plan to rely on that first page, but nonetheless that's
2 one point which is obviously of paramount concern, whether we're talking
3 now about calling back witnesses who testified here so that we can put to
4 them the first page, which of course we would have to consider. We could
5 have to consider whether that was worth it given our client's right to an
6 expeditious trial, but we would be prejudiced, obviously prejudiced by not
7 having that page.
8 The second point I want to make is just this, Your Honour, is that
9 documents -- you can have different photocopies of different documents and
10 different histories which a document which resembles another document
11 might have. Two copies, one gets stamped and delivered to one person,
12 another copy gets delivered to someone else. And those are different
13 documents. And unless someone comes here from the Prosecutor's office and
14 gives evidence that actually there was a mistake in photocopying and that
15 such and such an event happened, we would need evidence of that, it
16 then -- it's mere supposition on our part that this is the same document
17 based on visual comparison. And in our submission that's extremely
18 dangerous because in my learned -- my colleague has actually looked at an
19 original document in -- inspected a document of the Prosecution which has
20 the front page with the three pages -- the three extracts on top of each
21 other. She's seen that document, that is a document, an integral
22 document. If the Prosecution wants to argue there was a mistake, a
23 document was miscopied, then we need someone to come here who we can
24 cross-examine about that. Because, you know, documents may look the same
25 but be different documents, and this is the document which has been shown
1 to witnesses. And we find it extraordinary that a week before filing the
2 final brief we're confronted with a possibility of exhibit with 12 new
3 names on it on which the Prosecution may or certainly will rely unless
4 Ms. Sellers is saying clearly now that they have no intention to rely on
5 the first page.
6 In my submission, there is an extreme danger here of something
7 going quite seriously wrong in the week before we file our final briefs.
8 JUDGE AGIUS: So -- yes, the other -- one of the other pages in
9 the new version is this one with some handwriting on it. I don't know
10 whether you attach any importance to this or not. And then there is
11 the -- what appears to be the last page with also some handwriting on the
12 right-hand corner, top right-hand corner of the document. Again, we don't
13 know whether you attach any importance to these two pages?
14 MR. JONES: We attach significance to all and any differences.
15 JUDGE AGIUS: I know. That argument, I mean, you have driven --
16 made a point, so I'm not asking you -- asking you this question in order
17 to diminish or -- the importance of the main argument which is: This is a
18 new document. But it will help us know also what we're dealing about,
19 whether we are actually dealing with this part of the -- from the first
20 page and then basically what is page -- ERN 5228, on which we have already
21 received submissions, or whether we are also dealing with other very
22 significant stuff. I mean, this is -- this is basically it.
23 MR. JONES: Yes, I'm afraid I can't assist you with that degree of
24 specificity, Your Honour.
25 JUDGE AGIUS: No, you have every right to say: I have nothing to
1 add on this.
2 Yes, Ms. Sellers.
3 MS. SELLERS: Your Honour, if it falls on the Prosecutor to be
4 practical yet again, one would hope it's a shared quality, might I offer
5 some information. What we are calling the new document was actually a
6 document that has been in the Office of the Prosecution prior to what
7 we're calling the old document. And it was in this completed form.
8 Because handwriting is not picked up by our computer instruments when we
9 look at size, things of that nature, we were seeking and sought and got
10 what was considered now the first document. But we understood that this
11 first document for more information had more information, had a first page
12 to it because that was information that we received when there were issues
13 before this Trial Chamber related --
14 JUDGE AGIUS: Yeah, but, you've made that submission in the past,
15 so we are aware of it.
16 MS. SELLERS: I just want to say to the extent that it is not a
17 question, and I think it is really stretching a bit of reality to say that
18 these are two completely different documents. The Prosecutor must
19 maintain that position. On the pages that Your Honour has indicated that
20 remain different, those are the pages with a bit of handwriting toward the
21 end and then the handwriting on the second page, our impression is that
22 those are two pages that we will not be relying upon in any way with our
23 submissions or closing brief, if that's an issue that the Defence would
24 like to know that.
25 JUDGE AGIUS: And 5228 which was missing from the original? Is
1 that a page that you are going to rely upon? It concerns weapons.
2 MS. SELLERS: Your Honour, we would hope that we could rely upon
3 what is relevant in the document. If it is a matter of the Defence
4 conceding that this document can be entered in and we rely not upon
5 page 228, the Prosecution would accept that.
6 JUDGE AGIUS: Okay. I think we can -- yes, Ms. -- I don't think
7 we need to hear more.
8 MR. JONES: I simply want a clarification. So the Prosecution
9 does intend to rely, I take it, then, on the first page?
10 JUDGE AGIUS: Mr. Jones, I will not answer for the Prosecution. I
11 think the position made is clear, and I'm clear at the same time. I will
12 not answer for the Prosecution, but in any case we will decide later on
13 what we will -- what will happen to the new version P598.
14 Now, please bear with us. We haven't got much more left to deal
15 with, but between the last -- since the last time we met the Defence also,
16 as promised, filed their own position on the various Defence documents --
17 Defence exhibits and some of the OTP exhibits, and my suggestion is that
18 we try to go over the list where it needs to be -- there are some matters
19 outstanding that need to be addressed. And I would enjoin you first to
20 look at -- or look at P84 on which, as you know, there were motions and
21 decisions. We just, for the record, wish to make clear that our position
22 is that we take it that the Defence is still challenging parts of the
23 translation. So Prosecution is being put on notice on this. And that
24 therefore one of the decisions we will take, obviously, is whether one
25 would replace the other or whether they would still continue to co-exist
1 precisely because there is still this diversion of use between the two
2 parties. If we need to give it a -- if we decide to keep the two versions
3 co-existing, then the new version will become P84.1. All right.
4 Also, Ms. Sellers, I'm sorry I have to raise these issues. I know
5 that they could be handled also through the registrar, but we've just
6 discovered, actually, going through the papers yesterday that we need a
7 new page 59 and page 68 because they were faulty and the photocopying
8 process was faulty, and I think you will agree with me that they need to
9 be replaced. All right?
10 MS. SELLERS: They will be supplied, Your Honour.
11 JUDGE AGIUS: Okay. Thank you.
12 Do you wish to address anything else in relation to P84? All
13 right. Thank you.
14 P102 and 103, P102 and 103 consist of -- you will recall, I'm just
15 refreshing your memory, consist of two pages each from P84, P102 -- from
16 P84. P102 seems to have the whole original translation of P84 into
17 English. And P103 has a draft translation consisting only of three pages.
18 I am just drawing your attention, Ms. Sellers, to this. Perhaps you --
19 you would like to clarify this, if at all. But I wish to --
20 MS. SELLERS: Your Honour, we will take a closer look at this.
21 Our impression is that P84 was complete and of course we would
22 prefer P102.
23 JUDGE AGIUS: It isn't.
24 MS. SELLERS: Yes. So we will look at that.
25 JUDGE AGIUS: All right. And, please, you will of course inform
1 the Defence accordingly.
2 P127 and P279 we dealt with last time. You submitted,
3 Ms. Sellers, that OTP -- you will be referring to P279 when they use --
4 when you use that document. However, now we know from the Defence that
5 they do not consider these two documents to be the same since they bear
6 different dates and annotations. So the two documents you referred to,
7 whichever of the two that -- I mean, we will certainly not interfere --
8 MS. SELLERS: Thank you --
9 JUDGE AGIUS: -- with what you would like to do, but the two
10 documents will remain in the record.
11 Mr. Jones, Madam Vidovic, that's our decision that basically one
12 will not replace the other; the two will remain the same. Okay? So
13 basically you are both entitled, certainly the Defence, to refer to either
14 or both of these documents.
15 In regard to P456, again please bear with me, the sitting will
16 soon be over. You will recall that we had a short debate on this last
17 time. I had pointed out that you need to provide pages 8 and 9 of the
18 statement. The Defence did not show any or indicate any objection to
19 this. I think from having gone through -- having gone through this
20 document again and the part of the debate that we had last time, I think
21 you still need to clarify, Ms. Sellers, which pages need -- really need to
22 be replaced in P456, and which parts of the exhibits are redacted.
23 MS. SELLERS: Your Honour, now the discussion has moved from
24 redacted page 8 and 9 to the proper redactions of page 6 and 7. So in
25 essence we're talking about the proper redacted pages 6, 7, 8, 9, and with
1 our addendum to the corrigendum, I believe that that matter should be
2 resolved. And therefore after -- and if it is granted, we will hand
3 up P456, having properly redacted pages 6, 7, 8, and 9.
4 JUDGE AGIUS: All right.
5 Do you have a position on that, Ms. Vidovic or Mr. Jones? You
6 had not objected to the redaction of pages 8 and 9 basically so I don't
7 see --
8 MR. JONES: No.
9 JUDGE AGIUS: Thank you. So please proceed along those lines as
10 quickly as you can.
11 P4 -- 561. I -- let me try to recapitulate because we are a
12 little bit annoyed at this. You will recall that 561 corresponds to 458.
13 We put the question to you -- or to Ms. -- to you anyway, I think it was
14 you who answered this last time, whether you were relying on one or the
15 other or both, and you indicated that the exhibit should be referred to as
17 The Defence in their document have, since the last meeting, have
18 pointed out that the two are -- the two exhibits are different and have
19 different ERN numbers. In addition, it was pointed out, and we can
20 confirm it, that the first 30 pages that appear in P561 are missing
21 from P458. So the Defence has suggested that in their opinion they cannot
22 accept that these are one and the same document and that they have to
23 consider these two documents as indeed two different exhibits.
24 Question is whether you agree with this. Question -- next
25 question is whether the fact that there are 30 pages in P561 that were not
1 in P458 put P561 in more or less the same position as P598. This was not
2 brought up by the Defence, this last issue, but of course it's in the back
3 of my mind.
4 MS. SELLERS: Your Honour, I see the similarities in the
5 situations. P561, if Your Honours recall, was the actual book in which
6 what we refer to as the military log was written.
7 JUDGE AGIUS: Yes.
8 MS. SELLERS: The 30 pages that are different are essentially
9 blank pages. P458 entailed the photocopying of the pages that were not
10 blank; therefore, it chose not to copy 30 blank pages and hence we have
11 the difference. Now, if that makes the two documents different documents
12 in terms of page number is correct, in terms of the substantive and
13 relevant content for this Trial Chamber, I do not believe that there is a
15 Now, if we are to only refer to P458 in our submissions and
16 not P561 for the substantive content, the Prosecution would be willing to
17 concede. However, I do not believe that the fact that we have the two
18 documents that are essentially the same that the issue as to the
19 Prosecution trying to submit two different documents are not documents
20 a la P598 should be taken into the serious consideration of the Trial
22 JUDGE AGIUS: All right. I thank you, Ms. Sellers.
23 Ms. Vidovic.
24 MS. VIDOVIC: [Interpretation] Your Honour, I wouldn't agree that
25 these pages are completely blank. On some of these 30 pages, you can see
1 some annotations in handwriting. I've investigated that and I can claim
2 that they are very important. And if we are ever in a position to have a
3 witness who has drafted this document, it will be important. So I don't
4 agree. Could you please look at the page number 03653736. That's why we
5 insisted on these documents keeping their two exhibit numbers.
6 MS. SELLERS: Your Honour, could we be practical. The Prosecution
7 doesn't object to keeping both of them, the documents in. If someone
8 wants to testify as to the first 30 pages, that's fine with us.
9 JUDGE AGIUS: So that will be the position. In other words, the
10 two documents will remain in the record as P4 -- P458 and P561. You're
11 both free to refer to either or both of them. Of course we wish -- at
12 least I wish to make it clear that even a blank sheet of paper may turn up
13 to be extremely important in criminal trials, as you all know, especially
14 in this trial where we have got documents with loose papers and papers
15 missing, sheets of paper missing, or obviously cut or removed. So the two
16 will co-exist and you're free to make use of both, if necessary.
17 P570. Now, you will recall that last time we met here I pointed
18 out that the B/C/S version of this document is missing and needs to be
19 provided by the OTP -- actually, I could have even referred you to
20 previous transcripts where we had been given the impression that it was
21 only a matter of the document being brought up or down on that same day.
22 The B/C/S version was indeed tendered during the last sitting, on the 1st
23 of March. Of course, the Defence has looked at it and has come back to us
24 with some observations which are, for the record, the following.
25 We are being told that the Prosecution disclosed what purported to
1 be the B/C/S version of P570. According to the Defence, the B/C/S version
2 contains many more pages than the English version. As an example, the
3 B/C/S version bears the ERN 02115744 to 5781 as well as 5731, which has
4 also been added. And it therefore has, according to the Prosecution --
5 according to the Defence, sorry, an additional 32 pages.
6 The Defence does not accept that this B/C/S version is a version
7 of real 5 -- P570. According to the Defence, the Prosecution should only
8 tender the B/C/S pages that correspond to the English version that has
9 been tendered into evidence already, namely, pages 5744 to 5781.
10 According to the Defence, it is not permissible for the Prosecution to
11 seek to tender 32 additional pages of additional documentation which have
12 not been tendered in one of the working languages of the Tribunal
13 previously in the course of these proceedings.
14 Apart for this I just -- again for the record -- I'm not inviting
15 any discussion on this. The Defence reiterates its objection to the
16 authenticity of this document. Moreover, the Defence point out that there
17 are some -- pointed out some errors in the English translations of pages
18 57 -- 7574 to -- 5 -- that's a mistake, 5774 to 5781 which emerge when
19 these pages are compared with the B/C/S version. I don't need to go into
20 details here.
21 But it's certainly the case of calling upon you, Ms. Sellers, to
22 come forward with some kind of position taken or clarification so that we
23 will be in a better position to know how to deal with this now-tendered
24 B/C/S version, which the Defence is contending is different from the --
25 MS. SELLERS: We'll get back to you with that, Your Honour,
2 JUDGE AGIUS: All right. Thank you. And if it's much simpler to
3 remove those 32 pages and address the mistakes in -- or sorry, the
4 discrepancies in translation, I think it will be much helpful to the Trial
5 Chamber. But of course, feel free to disagree with what I am suggesting.
6 And if you need to have 32 additional pages, then of course we will need
7 to address the matter more extensively because that would -- unless those
8 32 pages contain absolutely nothing, that would call for the discussion
9 whether this is a new document or --
10 MS. SELLERS: Your Honour, if I understand you correctly, pages
11 with nothing do contain something as well?
12 JUDGE AGIUS: It may contain something --
13 MS. SELLERS: But we will look at them and we will certainly
14 take --
15 JUDGE AGIUS: I mean, may -- but while in the previous instance
16 you will notice Ms. Vidovic did not stand up and tell you: Now you can do
17 away with those first 30 pages; we don't need them. In this case, she is
18 herself suggesting that you might think it more practical to remove those
19 31, 32 pages. So I'm taking her suggestion and putting it to you because
20 there is, obviously, a difference between this and the previous one, as --
21 at least in my mind, if I am reading Ms. Vidovic and Mr. Jones correctly,
22 but I think I am. So -- all right. So this is being treated differently
23 by them, and that's why I'm making a different suggestion which I didn't
24 make before. So you need to come back on -- to us on this, please.
25 Yes, P600, P605, P607. You will recall that when we dealt with
1 these documents, the Defence did, in a very succinct and laconic way,
2 express an opinion there and then during the first March sitting. The
3 Defence made it clear that they still objected to these exhibits and that
4 in view of their objection we -- we had already basically taken the
5 decision or we were taking the decision that rather than replacing, the
6 new versions would co-exist with the original ones and we re-numbered --
7 we gave them a number. Now, there were some developments later on in due
8 course in the wake of the Defence document. Now -- and I'll take these up
9 one by one.
10 On the 6th of March, the Defence explained the issue regarding
11 P600 was solved in -- on the 29th of November, and we were reminded of the
12 transcript of what went on on that day. I'm reported to have said: "So
13 my record entry is not correct; it contains two pages in B/C/S and not one
15 And Ms. Richardson said: "Yes, Your Honour, that is correct. And
16 in fact, if we could have the usher's assistance in giving this document
17 back to the witness so that he can see the second page. If there is no
18 page, then I will provide it to you."
19 I said: "Please provide it later. Let's not waste time. So he
20 can read from my copy and we'll provide a full set."
21 So on P600 now, do you still maintain that the two should co-exist
22 or should P600.1 now sufficiently replace P600?
23 MR. JONES: I think it can replace it. My understanding is
24 that --
25 JUDGE AGIUS: Yeah, that's the way I understand it, too, but as --
1 MR. JONES: Yes.
2 JUDGE AGIUS: -- I say, I have already sort of taken a decision -
3 inviting my two colleagues to agree - that we would have 600 and 600.1.
4 MR. JONES: Because the witness saw that page.
5 JUDGE AGIUS: That's -- yeah.
6 MR. JONES: Okay. Thank you.
7 JUDGE AGIUS: So that's the position. We are making ourselves
8 clear, hoping that everyone is understanding what is happening. All
10 P605. Now, P605 is somewhat different, and the Defence maintains
11 its objection. So the decision will be that P605.1 will continue to
12 co-exist with P605 and detain -- the two exhibits will continue to be in
13 the record. Basically, to explain, the Defence position, according to
14 their submissions of the 6th of March -- I can state the following. This
15 is basically an excerpt from the book monograph Golden Lily, et cetera.
16 P605 as tendered originally consists of only two pages, ERN 5949, 5951.
17 These two pages were shown to Defence Witness Mustafic on certain day.
18 The Prosecution subsequently sought to tender additional pages
19 from this book, namely, 5954 to 61 and 6125, and their respective
20 translations thereof into English. 6125 contains information about Mirsad
21 Karamujic. Mirsad Mustafic was asked questions by the Prosecution in
22 cross-examination about this person, yet he did not have this page in
23 front of him. If he had done, he would have been able to comment on the
24 information contained therein, throwing light on its accuracy or
25 inaccuracy. I mean, this is the Defence position; of course I'm not
1 saying anything on behalf of the Trial Chamber.
2 So the Defence points out that as a result, since 6125 was not
3 shown to that witness and he did not comment or have the opportunity to
4 comment upon it, they therefore object to the tendering of the additional
5 pages from this book, namely, 5954 and 6125, as they were not shown to any
6 witness and witnesses were, therefore, deprived of the opportunity of
7 commenting upon them. So the position, briefly put is: 605, 605.1 will
8 continue to co-exist; however, we will ultimately have to decide whether
9 to allow 605.1 to be admitted or whether we will just throw it overboard
10 in -- for the purposes of our final deliberations. All right.
11 607. 607, basically the position now taken by the Defence is that
12 they do not really object to this document to the -- sorry, that the
13 Defence continued to object to this document but not to the new
14 translation. The position is as follows. This exhibit purports to be a
15 list of the members of the Potocari Territorial Defence, GI -- Srebrenica,
16 ERN 9572 to 9572, it's the same.
17 The Defence objects to the authenticity of this document. The
18 Defence agrees, however, to the Prosecution tendering a complete
19 translation of P607, as the initial translation was only a translation of
20 the headings of the document and was thus incomplete.
21 So this will leave us with this position. There will be two 607s,
22 one 607, one 607.1 with, of course, the open, unended question to be
23 resolved as to the admissibility based on the Defence objection. That
24 will remain unprejudiced and will be decided by us in due course.
25 However, you need to address this question of the translation. We are not
1 going to tell you what to do because this ultimately -- it is a little bit
2 of an anomaly to an extent, but please let us know what you intend doing
3 as regards the translation, since the Defence is indicating that they
4 would not be opposing for a complete translation of that. If you don't
5 agree or have some other ideas, please let us know and also inform the
6 Defence accordingly.
7 MS. SELLERS: Your Honour, I believe that we could reach an
8 agreement on that.
9 JUDGE AGIUS: All right. Okay.
10 So coming to the end now. Defence exhibit 690, Ms. Vidovic,
11 Mr. Jones. The Defence have clarified their position on the 6th of March,
12 for which I thank Madam Vidovic. According to the Defence, basically
13 without my need to go into details, if the position they follow is that if
14 there is no objection forthcoming from your part, the Defence would
15 propose removing the other pages - I don't know -- I don't need to
16 indicate them one by one - of this book as Exhibit 690, D690.
17 In other words, you need to tell us if you object to the removal
18 of the pages mentioned in the Defence document from the exhibit already
19 tendered, and of course then we will need to decide accordingly.
20 MS. SELLERS: Your Honour, I would just ask that I'm going to
21 consult with my colleagues in the very beginning of next week. The
22 position right now as we would voice is that we would want the other pages
23 to remain in, but if we can reach another decision, we will certainly
24 convey it to the Defence and to the Trial Chamber.
25 JUDGE AGIUS: All right. We would need to know because obviously
1 we would need to take a decision, not necessarily need to -- this is the
2 decision that we will be taking in the course of our deliberations,
3 obviously. But if there is an agreement, it would help us immensely.
4 Now, with D1014, D1019, and the corresponding point 1 in both
5 cases, you will recall what I had stated on the 24th of January, 2006, to
6 which I had drawn your attention. Same conditions apply to these two
7 documents; therefore, I'm just reminding you about these original
8 documents that are now part of the registry records, and I have got
9 nothing to add. All right.
10 That basically brings me to the end. There are -- yes, Mr. Jones.
11 MR. JONES: Yes. Well, unless Your Honour has something else, I
12 have two just very --
13 JUDGE AGIUS: No, no. I have got nothing else. That's why I say
14 "this brings me to the end" of course.
15 MR. JONES: All right. Yes. Well, I just have very brief matter,
16 and it will only take about 30 seconds I trust and it concerns closing
17 arguments. And the issue is this: There's a remote possibility that
18 we're considering that for certain issues of criminal law which are to be
19 addressed or which we're going to make submissions about, that it might
20 benefit to have someone outside our team to address certain of those
21 submissions. There are certain concepts in criminal law, some of them, in
22 fact, which are used in German law which are, in our submission, helpful
23 and which I'm not confident that I will even be able to pronounce, let
24 alone, expound upon.
25 And so there's a possibility that we would consider having someone
1 address the Trial Chamber on some legal issues, and I wanted just to see
2 what the policy of -- was of the Trial Chamber, whether closing arguments
3 would only be by counsel or whether, if we had let's say a professor who
4 was going to address an issue, whether that might meet with your approval.
5 JUDGE AGIUS: Well, let's put it like this: You've taken us by
6 surprise. We are none -- I, for one, am not prepared now to deal with the
7 matter without having further thorough consultation with my two counsel.
8 It did occur to me once here in this Tribunal, and I can tell you that the
9 Registrar had his own position on that and that the policy -- it's not
10 just the policy of the Trial Chamber that you need to take into
11 consideration, but also the policy of the Registrar and some practice
12 directive relating to who could be in the courtroom and who couldn't.
13 So of course we will be discussing this amongst yourselves [sic]
14 but I would invite you to have a meeting with the Registrar or someone
15 from his office. This is not the first time that the matter has come up,
16 and I know that there is a solution. However, I will not pre-empt any
17 issues now, particularly since I don't -- I don't quite know what the --
18 who you have in mind, what the Registrar's position in regard to that
19 person could be, and whether -- and what would be the procedure that needs
20 to be followed on your part before you present us with the request, et
21 cetera. But I think you do understand and read between the lines that I
22 think much of the parboiling and precooking has to be done elsewhere and
23 not here.
24 MR. JONES: Yes, we will look into that.
25 JUDGE AGIUS: All right. It has happened to me before and I dealt
1 with it, but also, of course, first thing is get the Registrar involved.
2 MR. JONES: Certainly, we'll do that, Your Honour. And one very
3 last matter is next week we're going to try and make courtesy copies
4 available of our final brief before the weekend, because otherwise we
5 might not -- parties might not have until the next Monday, not that we
6 necessarily all want to work on a weekend, but that's the reality, given
7 the --
8 JUDGE AGIUS: Yes, yes, yes. And in fact, I mean I'm being
9 extremely honest with you. I mean, what -- I know how hard-working both
10 teams are, how dedicated to your tasks you both are, and this is why I
11 publicly acknowledged now the work you did for the purpose of the aspect
12 of authenticity of document. And it is unfortunate that at this last
13 minutes when you should be concentrating your efforts on the pre-trial
14 briefs and we should be still dealing with missing pages and this and
15 that, et cetera. Please try to have everything ready in a best manner
16 possible. I'm sure you appreciate that and we will have your
17 cooperation. But it is frustrating to us that while we are also preparing
18 a lot of things and engaging our staff on a lot of work and dedicating
19 many of our hours, times, together to start discussing a few things, that
20 we have also got to bother about these matters.
21 Yes, did you say -- did you wish to say anything, Ms. Vidovic?
22 MS. VIDOVIC: [Interpretation] Your Honour, just for the record,
23 since we had another obligation, and that was to submit the translations
24 of D590, D605, and D655, I would just like to say that we have provided
25 those translations. We have done it before the beginning of the session.
1 JUDGE AGIUS: I thank you so much.
2 Yes, Ms. Sellers.
3 MS. SELLERS: Your Honour, very briefly. I understand that if you
4 are finished with D1014 and D1019 --
5 JUDGE AGIUS: Yes.
6 MS. SELLERS: -- I believe the Prosecution has the obligation to
7 return those to the evidence unit, and would also like to state along with
8 the Defence we will try and submit a courtesy copy of the closing brief
9 prior to the weekend so that both parties are put in a same position.
10 JUDGE AGIUS: I appreciate that, because you realise that after
11 that the three of us, we will have to go into cloister and then in
12 conclave. So it will -- and we will have a lot of pages to read and as
13 Milton said, "inwardly digest." So I thank you so much.
14 Also, albeit belatedly, at -- today is the 10th and we were not
15 sitting on the 8th, International Women's Day, and since a lot of women
16 take part in this case, both lead counsels now are women, plus assistant
17 and whatever, plus interpreters, et cetera, please accept our warm -- best
18 wishes two days later. Thank you.
19 --- Whereupon the hearing adjourned at 11.59 p.m.