1 Thursday, 22 November 2007
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 2.21 p.m.
5 JUDGE AGIUS: Good afternoon, everybody. And to you as well,
6 Madam Registrar, of course. Please call the case.
7 THE REGISTRAR: Good afternoon, Your Honours. This is case number
8 IT-05-88-T, the Prosecutor versus Vujadin Popovic et al.
9 JUDGE AGIUS: Thank you, Madam. For the record, all the accused
10 are here.
11 From the Defence teams, I notice the absence of Mr. Haynes,
12 Ms. Nikolic and of Mr. Ostojic.
13 Prosecution, it's still Mr. McCloskey and Mr. Nicholls.
14 Before we continue, as I did last year, on behalf of the Trial
15 Chamber, to those of you that celebrate Thanksgiving day today, I know how
16 precious it is for you and for your country, we all wish you a very good
17 Thanksgiving Day. Those of you who are with us here and those of you who
18 are absent today like Mr. Ostojic.
19 I understand there are some preliminaries, and we have got some
20 too. Yes, Madam Fauveau?
21 MS. FAUVEAU: [Interpretation] Your Honour, we received today the
22 decision that relates to certification and clarification of the decision
23 pertaining to impeachment of the witness who called the witness, the
24 Defence of General Miletic had asked for the clarification of this and not
25 for certification. Given the decision that has been handed down on the
1 clarification, I would like to ask you for certification so that we can
2 also appeal this decision. My request and my certification request on the
3 decision relating to certification ties into the initial decision.
4 JUDGE AGIUS: So you are seeking certification from yesterday's
6 MS. FAUVEAU: [Interpretation] Yes, Your Honour, because I have not
7 met the deadline for the first decision.
8 JUDGE AGIUS: Okay. We'll need to discuss about that. I don't
9 think it should present us with big problems, to come to a decision but
10 we'll let you know after the first break.
11 That's number 1. Any other preliminaries? No.
12 We were given copies this morning of two motions, one of which is
13 Prosecution is seeking protective measures for Witness 190, namely that of
14 a pseudonym and closed session. Since this witness was supposed to start
15 today but due to his illness won't be able to so but presumably he might
16 be starting tomorrow, I wish to know whether there are any objections on
17 the part of any of the Defence teams. Mr. Bourgon?
18 MR. BOURGON: Good afternoon, Mr. President.
19 JUDGE AGIUS: Good afternoon.
20 MR. BOURGON: There are no objections on behalf of the Nikolic
21 team. This witness is the person we've had the opportunity of meeting on
22 a couple of occasions in the Zvornik area and we have no objections.
23 However, I did communicate with my colleague this morning in respect of
24 three things. First, I said that I would like to obtain any audio
25 recording of any further proofing sessions conducted with the witness.
1 The second one is I'd -- I asked my colleague to communicate to the
2 witness that we would like to see him before he testifies. And the third
3 thing is we offered to our colleague to maybe, if he is too sick to
4 testify, that maybe we can stipulate to the contents of his testimony and
5 I will see what my colleague about this possibility. Thank you,
6 Mr. President.
7 JUDGE AGIUS: Is there -- are there any other comments from any of
8 the Defence teams on the protective measures issue?
9 MR. ZIVANOVIC: We support the submission of Mr. Bourgon, thanks.
10 JUDGE AGIUS: Thank you. And I think the question of protective
11 measures, then, we can decide here and now.
12 The other two matters raised by Mr. Bourgon and supported by
13 Mr. Popovic, speaking in the plural, by Mr. Zivanovic speaking in the
14 plural, you need to discuss it or --
15 MR. NICHOLLS: I can say right away as I've said to my friend, no
16 objection to 1 and 2. I have not yet met the witness other than for five
17 minutes at his hotel last night to say hello and see how he was doing but
18 if there is any further proofing which I hope there will be, I should say
19 proofing not further proofing, then the audio will be disclosed as we
20 promised in our submission and I will, of course, convey and arrange a
21 meeting. And the third thing is I don't think we are going to want to
22 stipulate. I'll think about that but I think we would like him to testify
23 as soon as he's able to.
24 JUDGE AGIUS: Okay. Thank you. Make sure he doesn't infect
25 either you or Mr. Bourgon. So that is okay.
1 We can hand down our decision, therefore, on the Prosecution
2 motion for protective measures.
3 The motion was filed yesterday, or today, the 22nd of November.
4 Having heard no objection on the part of Defence, some Defence teams, and
5 no comment from others, the Trial Chamber grants the motion, to wit the
6 protective measures sought for this witness, namely that of closed session
7 and use of pseudonym. The pseudonym will be PW-171.
8 All right. Then there was another --
9 [Trial Chamber confers]
10 JUDGE AGIUS: Then there is another motion that was also filed
11 this morning, namely a Prosecution motion for leave to amend 65 ter
12 Exhibit list with 12 exhibits pertaining or relating to witnesses number
13 33 and number 31. The details of -- or the subject matter of these 12
14 documents are indicated in the motion itself.
15 As I understand it to be, Witness number 33 is due to testify on
16 Monday and Witness number 31 will follow soon after, on Wednesday, if the
17 schedule goes as planned. And therefore, I'm asking you to provide us
18 with a feedback, with your response, on this motion if you are in a
19 position to do so. Yes, Mr. Josse?
20 MR. JOSSE: Let me say on behalf of our team, that we are not at
21 all happy about the present situation and predicament. Before I start I
22 should say in fairness that a courtesy copy of this motion was provided
23 yesterday afternoon so we had notice of it at that particular point. As I
24 speak, our team has not yet located all of these documents. Clearly we
25 are going to need to. I dare say they all exist and I accept what is said
1 in the motion that they were disclosed a long time ago. I'm not going to
2 argue with that at all.
3 The motion is extremely late. The Trial Chamber have specifically
4 asked the Prosecution some weeks ago to provide a final and definitive
5 list of the documents that were going to be used prior to the end of this
6 case, and we are entitled to 14 days to reply to this motion. On behalf
7 of the Gvero team we are simply not in a position to deal with it in the
8 short way and short basis that we are being asked to do by the Prosecution
9 at the moment. And the situation is intolerable as far as we are
10 concerned. There are a number of other pressing work matters, not least
11 the preparation of these two very important witnesses, a number of issues
12 have arisen this week which we were unable to foreshadow last week, so to
13 speak, and to be met with this at the 11th hour is as I already said
14 unacceptable and we request further time and we are not ready to deal with
15 it at this particular juncture. The very earliest we will be ready to
16 deal with it is on Monday, if the Trial Chamber insists as I imagine it
17 will. For obvious reasons we can't hold up the witnesses. I accept that.
18 One of these witnesses is coming from a long way away and I live in the
19 real world and I appreciate what we'll have to do. But I invite the Trial
20 Chamber to say that we can address it on Monday morning but perhaps an
21 explanation from the Prosecution as to why this is happening at the 11th
23 JUDGE AGIUS: Yes. Thank you, do you wish -- yes, Mr. Bourgon?
24 MR. BOURGON: Thank you, Mr. President. Mr. President, those two
25 witnesses do not pertain to the events against Drago Nikolic and neither
1 do the documents. However, I'd like to point for the record that the
2 arguments raised by the Prosecution in their motion by their contents
3 simply make Rule 65 ter a useless rule altogether. They take it for
4 granted that they will just have to put in a piece of paper and that it
5 will be granted all the time. We feel, Mr. President, this is
6 inappropriate. Thank you, Mr. President.
7 JUDGE AGIUS: Thank you, Mr. Bourgon. Any other comments?
8 Mr. Meek?
9 MR. MEEK: Thank you, Mr. President. Your Honours, I would just
10 simply join in with Mr. Bourgon's comments.
11 JUDGE AGIUS: And not with Mr. Josse's comments?
12 MR. MEEK: Obviously, since he was commenting on Mr. Josse's
13 comments, it would include Mr. Josse, my esteemed colleague. Thank you.
14 JUDGE AGIUS: Mr. Nicholls or Mr. McCloskey, I don't know who
15 wishes to address this. Mr. Nicholls?
16 MR. NICHOLLS: Thank you, Your Honour. First, I think Monday
17 morning will probably be fine and my friends can have the weekend to hone
18 their arguments. Based on the -- what I'm told about the current health
19 situation of Witness 190, it may be that we would be calling him to
20 testify Monday. I think he's a one-day witness so that would push back
21 the other witnesses who this motion concerns.
22 I believe although I can't speak with complete authority about
23 this motion, that these are documents which were attached or referenced to
24 in the statements of the two witnesses for next week and I say that with a
25 caveat, and that they've recently been, as Mr. Thayer has been preparing
1 these documents, have come up, I don't -- as clear in the motion, these
2 are all ones which the Defence has had for a long time. We don't feel
3 with Rule 65 ter, as Mr. Bourgon said, that we just file a piece of paper
4 on take anything for granted. I can't really go into the merits of each
5 of these documents at the moment, but I think that's something that we
6 could discuss on Monday morning. We have no problem with that.
7 JUDGE AGIUS: Thank you, Mr. Nicholls but it begs the two
8 questions. One is how far back do the statements of these two witnesses
9 go? And if they go far enough, assuming as you say that these documents
10 were referenced in the same statements, why weren't they included in the
11 65 ter list in the first place?
12 MR. NICHOLLS: I will have to talk to -- I would have to talk to
13 Mr. Thayer or perhaps bring Mr. Thayer down here would be more efficient
14 or after the break, Your Honour, and I think he'll be able to explain this
15 much better than I can at the moment.
16 JUDGE AGIUS: I think so because I think an explanation is --
17 would be in place. Yes, Mr. Nicholls?
18 MR. NICHOLLS: Then either if we reserve some time at the end
19 today, we may have time at the end of the cross or after one of the breaks
20 we can talk about this further.
21 JUDGE AGIUS: All right.
22 [Trial Chamber confers]
23 JUDGE AGIUS: So you will have up to Monday noon to come back with
24 your responses.
25 MR. JOSSE: Thank you.
1 [Trial Chamber confers]
2 JUDGE AGIUS: Do you think 190 will be available tomorrow?
3 MR. NICHOLLS: What I've heard, Your Honour, is that he's not
4 well. When we tried to contact him today he was in his hotel room asleep
5 and we couldn't talk to him. I'll be in court until 7.00 tonight so I
6 think it's unlikely that he will be ready tomorrow, but I don't frankly
7 know. I may talk to him at 7.00 tonight and he's suddenly will be better.
8 He was taken to a hospital again this morning. He was seen by a doctor
9 again. He was given more medication, is what I'm hearing second hand so I
10 just don't know when his health will improve.
11 JUDGE AGIUS: I'm asking this because obviously if there is going
12 to be a proofing session which is going to be audio or videotaped, then
13 Mr. Bourgon amongst others, but particularly Mr. Bourgon, would want time
14 to listen to those tapes.
15 MR. NICHOLLS: Yes, Your Honour. I understand that. It could be
16 that what happened with the last witness happens, the last witness it
17 turned out there wasn't much of a substantive audio recording because the
18 witness chose not to discuss matters further. So I just don't know now
19 because I haven't spoken to the witness but you're quite correct, Your
20 Honour, if the witness is available then it would be late tonight that
21 anything was disclosed and that may not be good enough for Mr. Bourgon.
22 JUDGE AGIUS: Okay. Thank you. Yes, Mr. Bourgon?
23 MR. BOURGON: Thank you, Mr. President. I just received an e-mail
24 seconds ago saying that the witness is back from the hospital and is
25 willing to see us tonight between 7 and 8. If my colleague wants to
1 proceed, we can be ready tomorrow morning. Whatever fit is good for the
2 Prosecution will be good for us. Thank you, Mr. President.
3 JUDGE AGIUS: Yes, Mr. McCloskey?
4 MR. McCLOSKEY: Yes, I'd say we will be able to work this out but
5 this does show one of the fundamental issues about taping things.
6 Logistically, we really cannot do that on an everyday basis because it
7 would require to us bring people in well ahead of time and it would change
8 the entire layout of how witnesses are brought to the Court. We are able
9 to do that in this particular situation but to start a practice where we
10 have to tape and then transcribe and give days on notice for someone, this
11 would be completely impossible but we are able to do it in this situation,
12 on these short witnesses and will continue to work if -- and any time we
13 can but as a practice this is very difficult. Just logistically.
14 JUDGE AGIUS: Yes, Mr. Bourgon?
15 MR. BOURGON: I would have preferred to avoid this kind of
16 argument this afternoon. However, Mr. President, it may be difficult to
17 abide by the rules but we have rules in this Tribunal and the rule says
18 when you have a suspect and when you question a suspect you have to record
19 the interview with the suspect. And I feel that it is inappropriate for
20 my colleague to raise this issue at this point in time when we have this
21 witness, they've agreed to interview him and to come back now and to say
22 that, yes, but just for this time and not for later, I think it's not
23 appropriate, Mr. President. Thank you.
24 JUDGE AGIUS: All right. I think what we now have on the table is
25 this witness's possible proofing session and no one else's. We'll talk
1 about other ones later on, if it's the case.
2 [Trial Chamber confers]
3 JUDGE AGIUS: I might as well add that we haven't handed down a
4 ruling on the procedure which ought to be followed. This is going to take
5 place in the present case of this witness, 190, because the Prosecution
6 has accepted to do it on a limited basis, which was also acceptable to
7 you. There are other issues involved. Later on we'll see and if it's the
8 case of handing down a ruling we will do so.
9 So we left yesterday with outstanding matter, namely, the
10 tendering process, exhibits.
11 MR. NICHOLLS: None from the Prosecution, Your Honour.
12 JUDGE AGIUS: Any from the Defence teams? Didn't he mark --
13 because -- I think it was with Mr. Bourgon, yes. Mr. Bourgon?
14 MR. BOURGON: Indeed, Mr. President, there is one Exhibit
15 3DIC 192, which is the sketch of the Rocevic area on which the witness
16 indicated with six different numbers six different locations.
17 JUDGE AGIUS: Okay. Any objection?
18 MR. NICHOLLS: None, Your Honour.
19 JUDGE AGIUS: Any objection on the part of the Defence teams?
20 None. So it's admitted.
21 I take it we are going to hear the evidence of Mr. Blaszczyk
23 MR. NICHOLLS: Yes, Your Honour, his cross-examination was
24 originally scheduled to continue on Friday and we are just moving it up a
25 day and all my friends have been informed.
1 JUDGE AGIUS: All right. I understand there is a problem from the
2 Beara team on cross-examining this witness because I understand that it's
3 Mr. Ostojic that was supposed to handle it. Is that correct?
4 MR. MEEK: Yes, Your Honour. That is correct. Mr. Ostojic
5 started the cross-examination. He would very much like to finish it, like
6 I said yesterday due to some personal problems, he can't. I've spoken
7 with my colleagues and since this witness will be coming back several
8 times, they have agreed they have no objection to that procedure to allow
9 him to finish his cross-examination, if the Court would allow that, we
10 would appreciate it greatly. We have a division of labour so to speak and
11 Mr. Ostojic started this witness. He very much wants to finish the
12 witness and the client would like him to finish the witness.
13 JUDGE AGIUS: Okay. This time we are going to close a blind eye
14 on this because we would like to remind you all that the role of
15 co-counsel over the years, and particularly following an incident that I
16 myself had in Brdjanin, was clarified to make it definitive and very clear
17 that in the absence of lead counsel, co-counsel would or should be and
18 would be required to conduct the cross-examination of a witness or
19 examination-in-chief, for that matter. But we understand that Mr. Ostojic
20 had already started the cross-examination and since he's had personal
21 problems to deal with, we are going to close a blind eye and reserve for
22 your Defence the continuation of the cross-examination by Mr. Ostojic at a
23 later stage.
24 MR. MEEK: Thank you very much, Your Honour. Certainly --
25 JUDGE AGIUS: We don't want to you take it for granted that in the
1 absence of either co-counsel or lead counsel the other counsel present in
2 the courtroom says, no, I am not in a position to proceed, because it's my
3 colleague who will be or who was supposed to be dealing with this and we
4 have a division of labour, et cetera, et cetera. That's not nice music
5 for our ears. I want to make it clear.
6 MR. MEEK: Yes. Thank you, Your Honour. I was just going to say
7 that this certainly an exception to the rule and as you know, this is the
8 first time we've requested this in over a year and I doubt it will ever
9 happen again and I appreciate it very much.
10 JUDGE AGIUS: I appreciate that, Mr. Meek. Yes, Mr. Nicholls?
11 MR. NICHOLLS: Thank you. We did agree with Mr. Meek. He's
12 correct but part of the agreement I just want to make it clear, Mr. Meek
13 will agree with me the remaining cross-examination is going to be 30
14 minutes or less. That's part of why we agreed on this occasion. That it
15 wasn't going to be a big long thing that we are putting off.
16 JUDGE AGIUS: Okay. Who is going next with the cross-examination,
17 before -- we still have to bring in but what I need to know is who is --
18 who will be cross-examining -- who is going to cross-examine
19 Mr. Blaszczyk? Ms. Fauveau and how long do you think you will take?
20 MS. FAUVEAU: [Interpretation] Your Honour, I believe I will go
21 until the break.
22 JUDGE AGIUS: Okay. In the meantime, Madam Usher, you can bring
23 the witness in. Who will follow after Madam Fauveau? Don't rush.
24 MR. JOSSE: As things stand at the moment, we are proposing to ask
25 a few questions and I mean a few. Our estimate was 30 minutes. It's
1 likely to be significantly less than that.
2 JUDGE AGIUS: Okay. It seems I will be able to celebrate
3 Thanksgiving with the rest of you earlier than expected.
4 [The witness entered court]
5 JUDGE AGIUS: Let's wait for Mr. Blaszczyk.
6 Good afternoon to you, Mr. Blaszczyk.
7 THE WITNESS: Good afternoon, Your Honour.
8 JUDGE AGIUS: We are going to proceed with cross-examinations
9 today. The idea was to conclude today but we cannot because one of the
10 lawyers, actually Mr. Ostojic, who was cross-examining you the last time,
11 is not with us today due to personal matters, reasons, and we will have to
12 postpone his continuation of the cross-examination until a later date but
13 I think we will be able to finish with all other cross-examinations today.
14 So you will only have to return for a short while at some later point in
16 THE WITNESS: Okay. Thank you.
17 JUDGE AGIUS: Today, Madam Fauveau, representing General Miletic,
18 will cross-examine you first. Madam Fauveau.
19 WITNESS: TOMASZ BLASZCZYK [Resumed]
20 Cross-examination by Ms. Fauveau:
21 Q. Good afternoon, sir. In your testimony of the 22nd [as
22 interpreted] of November on page 17438, that the document of the Drina
23 collection was sent to Mali Zvornik in 1998; is that right? Is it fair to
24 say that the document -- the 2004 document was found in Milanovac?
25 A. My testimony of the 2nd of November, I think. The collection was
1 sent to Mali Zvornik in 1988 and in 2004 the document was found in Gornji
2 Milanovac in Serbia.
3 Q. Thank you for having corrected the date. Do you know when these
4 documents were forwarded from Mali Zvornik?
5 A. I don't know exactly. We can assume that they were forwarded --
6 they were taken to Gornji Milanovac but we have no confirmation of that.
7 Q. And you don't know whether they were forwarded directly from Mali
8 Zvornik to Gornji Milanovac?
9 A. No, I don't know.
10 Q. So you cannot exclude the possibility that the documents were kept
11 in several other places, notwithstanding --
12 A. I cannot exclude that.
13 Q. -- Mali Zvornik and Gornji Milanovac?
14 A. I cannot exclude that possibility but we received information from
15 the government of Serbia, they were mention only transportation of this
16 collection from Mali Zvornik to Gornji Milanovac, nothing more. But I
17 cannot exclude that they were kept somewhere else.
18 Q. This information concerning the forwarding of the collection from
19 Mali Zvornik to Gornji Milanovac, when were you informed about this?
20 A. We were informed about this in 2005, in the beginning of 2005.
21 But this is information we received official information from government
22 of Serbia, but, of course, yeah, we knew that the collection was in Mali
23 Zvornik until 1999, from the witness statement.
24 Q. Yes, you're quite right. Some witnesses did state that in the
25 spring of 1999 these documents were still in Mali Zvornik. But as far as
1 a period running from the spring of 1999 to December 2004, there is no
2 information pertaining to the location where these documents might have
3 been kept?
4 A. We have no statement with such information.
5 Q. Do you know who ordered the forwarding of these documents from
6 Mali Zvornik?
7 A. From Mali Zvornik to Serbia, yeah? Or somewhere?
8 Q. Yes, sir.
9 A. No, I don't know.
10 Q. Therefore, you don't know who could access these documents once
11 they had left Mali Zvornik?
12 A. No. I don't know.
13 Q. In your testimony of 2nd of November, 17419 and 17420 you said
14 that the Ministry of the Interior of the Republika Srpska and the Ministry
15 of Defence of Republika Srpska undertook an operation to retrieve these
16 documents, i.e. the Drina collection, to transfer them to Banja Luka.
17 Have I understood you correctly? Was this a joint operation between the
18 Ministry of the Interior of the Republika Srpska and the MOD of the
19 Republika Srpska?
20 A. Yes, you are correct.
21 Q. Were the official bodies of the Serbian Republic involved in any
22 of this?
23 A. From the information we received from authorities of Republika
24 Srpska and later on from Serbia as well, the official body of Serbia
25 were -- was involved, I think, it was autumn 2004, I think it was
1 October. Because the first time, about the -- okay, the first time
2 information about existence of this collection came out in the meeting
3 with Ministry of -- Minister of Interior of Republika Srpska, with the
4 bodies of Serbia, in 2004, I think it was October. And it was agreed at
5 this meeting that the collection should be returned to Republika Srpska,
6 to Bosnia.
7 Q. Do you have any minutes or any information pertaining to the
8 information you've just provided us with?
9 A. No. We received this information as a response of our request
10 to -- forwarded to Republika Srpska and also to Serbia.
11 Q. Did you ever receive -- did you ever receive any official
12 information from the Republic of Serbia stating that the Republika Srpska
13 had taken hold of the collection in Mali -- in Gornji Milanovac?
14 A. We received information, official information, from Republic of
15 Serbia that the collection was stored in Gornji Milanovac and was handed
16 over to the representative of Republika Srpska.
17 Q. So you have a written document that would confirm this; is that
19 A. As I said, we have -- I'm pretty sure that we have a response for
20 our request, official request, from Serbia.
21 Q. Does this mean that after the Republika Srpska official bodies
22 retrieved these documents and transferred them to Banja Luka, you filed
23 similar request and you addressed this to the Republic of Serbia?
24 A. Yes. This is correct. When we got information that -- in fact,
25 when we received this archive in Banja Luka and then the archive was
1 transported to Zagreb and then to The Hague, we requested Republika Srpska
2 and also Serbia to give us more information about circumstances of this
3 collection, how the collection was taken from Mali Zvornik to Gornji
4 Milanovac and so on.
5 Q. I don't know if you can answer this question. I don't know if
6 you're the right person. Could the OTP provide us with the answers they
7 have received after having filed these requests, after the documents were
8 sent to Banja Luka?
9 A. I am not sure that I'm right person to tell you but I'm pretty
10 sure that, yes, it's my opinion.
11 MS. FAUVEAU: [Interpretation] I would like to show the document
12 Exhibit number P2809, please.
13 Q. In the meantime, I would like to confirm that you did see these
14 documents for the first time when they reached Zagreb; is that right?
15 A. Okay.
16 Q. The box we can see on this picture is the box, one of the boxes in
17 which the documents were transported and reached Banja Luka, and if I
18 understood you correctly, you have never seen this box in Banja Luka; is
19 that right?
20 A. Yes. I never seen these boxes but I saw the contents of these
21 boxes later on in Zagreb.
22 Q. Do you know when these documents were found in Gornji Milanovac,
23 whether these documents were found in this container or were they
24 specifically put in these box for them to be forwarded to Banja Luka?
25 A. From the information -- from the information we received, the
1 documents were kept in these boxes, 16 boxes and only the boxes were taken
2 to Bosnia-Herzegovina, to Banja Luka.
3 Q. But you don't know when these documents were actually put in the
4 box, you cannot state whether they were put in the box in Gornji Milanovac
5 or Mali Zvornik?
6 A. No, we don't have such information. I don't know.
7 Q. And you don't know either who put them in the document -- in the
9 A. Yes, you are correct. We don't know.
10 Q. You said that 16 boxes were carried to Banja Luka, but two of
11 these boxes contained material not pertaining to the Drina Corps; is that
13 A. No. This is not right. There were 16 boxes containing the
14 documents, and another boxes delivered to Banja Luka field office - not
15 these boxes but cardboard boxes - contained the tapes. These boxes with
16 tapes were delivered to Banja Luka field office one day later, on the 14th
17 of December 2004.
18 Q. So in all, in Banja Luka, on those days, on the 13th and 14th of
19 December, there would have been 18 boxes?
20 A. There were 16 boxes, wooden -- actually -- in fact, 15 wooden
21 boxes, one aluminium box containing the documents plus two boxes,
22 cardboard boxes containing the tapes.
23 MS. FAUVEAU: [Interpretation] Can we please show the witness
24 Exhibit 5D434?
25 Q. This is a statement stating that the following items were
1 delivered. It's similar to the receipt for the 16 boxes. And this has to
2 do with the two boxes received in Banja Luka on the 14th of December 2004.
3 This declaration on receipt of materials, does it confirm the reception of
4 these two separate boxes which did not pertain to the Drina Corps?
5 A. Yes, you are correct.
6 MS. FAUVEAU: [Interpretation] Could we now please show the witness
7 Exhibit P2807?
8 Q. While the exhibit is being shown, we have these two boxes plus 16
9 boxes pertaining to the Drina Corps. So all in all, 18 boxes; is that
11 A. Yeah, that is right.
12 Q. Here, we have the declaration on receipt of materials for 16
13 boxes, as it is written at the top of the page, and here at the bottom
14 part of the page, I would like to show, if you can scroll it down, the
15 handwritten part. It appears that the 16 boxes were opened and then
16 repacked into 24 boxes. Already last time, you stated that the boxes had
17 been reopened and repacked into new boxes.
18 A. You want me to comment this document?
19 Q. I just want you to confirm that these 16 boxes were actually
20 repacked into 24 boxes?
21 A. This is mistake done by the investigator Tollefsen because in fact
22 that 16 boxes containing that documents were repacked into 23 boxes and
23 this 24th boxes consists of these two boxes containing the tapes seized in
24 other operation.
25 Q. So you were not in Banja Luka when the document was written?
1 MR. NICHOLLS: Asked and answered about eight times.
2 JUDGE AGIUS: Correct.
3 MS. FAUVEAU: [Interpretation] This is a question that I have to
4 ask for my next question. But I'll move on directly to my next question.
5 Q. Then how can you know that there was a mistake in the document?
6 There was no mistake when the boxes reached Zagreb and you received 23
8 A. This is not mistake because I was present when the boxes arrived
9 to Zagreb field office and probably we checked these boxes, we received
10 also information how many boxes arrived.
11 Q. How did these boxes travel from Banja Luka to Zagreb?
12 A. They travel with UN truck with escort with one of the security
13 officer, UN security officer.
14 Q. And you were not present during their transport?
15 A. I was not present during the all transport but I was present when
16 the truck arrived to Zagreb field office.
17 Q. And when the boxes arrived, how many boxes were there altogether?
18 A. There were altogether, there were 24 boxes.
19 Q. And when you opened these 24 boxes, let me rephrase my question.
20 Were the 24 boxes which arrived, were they marked with their content? Do
21 you know -- did you know before opening them what was inside those boxes?
22 A. No, I didn't know.
23 Q. Therefore, when you received those 24 boxes, you didn't know which
24 one did not include material pertaining to the Drina Corps?
25 A. As far I remember, I received information that one box contained
1 tapes seized in other operation not connected to Drina Corps collection.
2 Q. Do you remember who provided you with that information?
3 A. I was in touch with my supervisors in The Hague and also with the
4 investigator on the field in the Banja Luka field office, and -- yeah.
5 Q. Do you remember today who gave you that specific information on
6 the fact that one of these boxes contained the video and audio recording?
7 A. No. I don't remember right now exactly who of these persons give
8 me this information but it is possible that also this information was
9 received by the head of the office who actually was recipient of this
10 stuff in Zagreb field office.
11 Q. Did anybody ever tell you that in the declaration there was a
12 mistake, that the actual number of boxes did not match the declaration?
13 I'm referring to the handwritten part at the bottom of the document.
14 A. No.
15 MS. FAUVEAU: [Interpretation] Now, could we show the witness
16 Exhibit P192, please? Can we show the original document in the B/C/S
17 version, please?
18 Q. Can you confirm that this document was found in the Drina Corps
20 A. I recognise these documents, yes.
21 Q. Can you recognise this document because of its ERN number?
22 A. Not only. On the bottom of this document there is, I think, the
23 signature of one of the witness who testified to this Court before, and
24 this document was shown, if I could remember, to the witness during his
1 JUDGE AGIUS: One moment.
2 [Trial Chamber and registrar confer]
3 JUDGE AGIUS: Go ahead, Madam.
4 MR. NICHOLLS: I don't know if that's what you were asking about,
5 Your Honour, the witness is not protected.
6 JUDGE AGIUS: All right. Okay. Okay. Then go ahead.
7 MS. FAUVEAU: [Interpretation]
8 Q. Therefore, you recognise this document today because you've had
9 the opportunity to see it when it was shown to the witness?
10 A. Yeah. I remember these documents was shown to the witness as well
11 but I remember also in Zagreb because these documents were part of small
12 binder. There were a few documents in one place, collected, and I
13 remember seeing this binder in Zagreb.
14 Q. You said, I believe, that there were over 300.000 pages when the
15 documents reached Banja Luka and then Zagreb?
16 A. Yes, you are right.
17 Q. And you didn't have time to take an inventory of these documents?
18 A. You are right. I have no time to make an inventory of these
19 documents but as I told before, I just made a copy of few documents, I
20 mean on the copy machine, which looked for me very interesting, and I
21 never seen it before, and this is one of these documents, and I remember
22 very well this binder.
23 Q. So if I understand you correctly, you don't remember each of the
24 300.000 pages but you remember that document specifically?
25 A. I remember the binder, and I am sure that these documents belong
1 to this binder.
2 Q. If we assume that the document actually came from the Drina Corps
3 collection, you said earlier that to your knowledge the document in Gornji
4 Milanovac were kept in the boxes in which they arrived at Banja Luka. Do
5 you know whether the documents in these boxes were classified on the basis
6 of documents remaining pending?
7 A. I don't think so.
8 Q. I believe there is a problem with interpretation.
9 Do you know if in Gornji Milanovac the documents in the boxes were
10 archived by category of documents received, documents sent, or documents
11 to be dealt with?
12 A. On the base of information we received from Serbia, no.
13 Q. On the basis of the fact that these documents were found, and
14 please do not take into account what you may have heard from witness
15 depositions, so on the basis of these documents, you could not know
16 whether these documents were sent or received by the Drina Corps, could
18 A. This is visible for me that the documents were created in Drina
19 Corps units and on the Drina Corps itself. It should came from Drina
20 Corps collection, the archive. They were created or were sent through the
21 units of the Drina Corps.
22 Q. Okay. But actually what I meant was that it's impossible for you
23 to assert whether it was one thing or another, whether they were sent or
25 A. I see that from the documents, from the notes on the documents,
1 that the documents were used by the -- let's say, let's -- sent by the
2 units of Drina Corps or was sent from Drina Corps itself or the Drina
3 Corps unit received some of these documents, it was visible for me that
4 they are documents from Drina Corps collection. And also in information
5 we received from Serbia, there was mentioned that this was the collection
6 who was first kept in Mali Zvornik but no more explanation how it was kept
7 over there -- I mean, how was transported from Mali Zvornik to Gornji
8 Milanovac -- but they refer to the same documents, from Mali Zvornik and
9 then finally the documents were found in the barracks in Gornji Milanovac.
10 MS. FAUVEAU: [Interpretation] Can we now please show the witness
11 Exhibit P2869? I don't believe that's the exhibit I asked for. That
12 might be my mistake.
13 Q. The right document is the document on your right, number 042303.
14 Now we have the correct English version. This is not a -- it's not a
15 document from the Drina Corps collection. I just want to ask you whether
16 you know where that document comes from.
17 A. Yes, I know.
18 Q. Can you tell me where the document comes from? How did you
19 receive it?
20 A. Yes, we received this document from one of our witnesses, the
21 member of the 10th Sabotage Detachment.
22 Q. And when this person gave you the document, did that person give
23 you the original document?
24 A. As far I recall right now, we received first the copy of this
25 document, then I think we received the original of this document.
1 Q. And the original document was given to you by the same person?
2 A. I am not recall exactly but it's possible that it was given to me
3 by the same person but it was given to me by the member of the 10th
4 Sabotage Detachment as well.
5 Q. Have you ever asked that person how he had obtained the document?
6 A. For sure I did.
7 MS. FAUVEAU: [Interpretation] Can we show the witness Exhibit P --
9 Q. Would you agree to say that this particular information report has
10 to do with the reception of the document?
11 A. Yes, I agree.
12 Q. If we look at the last page, we could conclude that the person had
13 the original document?
14 A. Yes.
15 Q. And you told me that you asked that person how he had got hold of
16 the document. Why isn't the information written out in the report?
17 A. It's not written out.
18 MS. FAUVEAU: [Interpretation] Thank you. I have no further
19 question, Your Honour.
20 JUDGE AGIUS: Thank you, Madam Fauveau. Who is next? Mr. Josse?
21 MR. JOSSE: Well, I'm going to be even quicker than I had promised
22 earlier because most of the matters I was going to ask have just been
24 Cross-examination by Mr. Josse:
25 Q. Just want to ask you this, please, sir. By the way, I represent
1 General Gvero. Have there been any developments in the last month in
2 relation to these Drina Corps documents?
3 A. You mean developments in receiving information how we received
4 these documents or whereabouts did these documents between 1999 and 2004?
5 Q. That would be a good start, yes.
6 A. No. I don't recall, at least I don't know. No.
7 Q. Nothing that's come to your attention?
8 A. No.
9 Q. As the chief investigator you're still in charge of any inquiries
10 in relation to the veracity of these documents; is that correct?
11 A. I am not chief investigator, I am leading investigator in this
12 team because I am the oldest investigator in this team.
13 Q. What's the difference, please, between that and chief
15 A. Chief investigator this is the person responsible for all
16 investigation between the OTP.
17 Q. I see. So it's me using the wrong technical terminology, correct?
18 A. Yes.
19 Q. You're the lead investigator for this case; is that correct, at
20 the moment?
21 A. At the moment, yes.
22 Q. And you took over that role when Mr. Ruez departed; is that
24 A. No, it's not correct.
25 Q. No?
1 A. After Mr. Ruez departed, Alistair Graham became the team leader or
2 lead investigator also for this investigation. After him it was
3 Bruce Bursik and when Bruce left, I was the oldest one.
4 Q. So any information in relation to these documents would come to
5 you at the moment; is that correct?
6 A. Not necessary because not only Srebrenica team was involved in
7 this collection or any archives but also another teams, it's possible
8 another teams some information but I have not --
9 Q. Help us, please, with which teams that may be and the names of the
10 investigators who would be responsible in those particular teams, if you
12 A. I remember that the people from team A was very involved to get
13 all necessary information, how the documents ended up in Serbia and all
14 the circumstances.
15 Q. And what's team A, please? What's it mean to those of us not in
16 the know?
17 A. Okay. Yeah. The OTP is divided for the teams, team A is the team
18 who used to work also with Slobodan Milosevic case.
19 Q. And could we have the name of the lead investigator in team A, if
20 you know it?
21 A. The team leader of team A left the Tribunal already, Yves Roy, but
22 who is team leader right now, really, I don't know.
23 MR. JOSSE: Thank you.
24 JUDGE AGIUS: Thank you, Mr. Josse. According to my records, the
25 Popovic and the Borovcanin team do not wish to cross-examine this witness.
1 Nikolic Defence team, Mr. Bourgon?
2 MR. BOURGON: Thank you, Mr. President, I do have a few questions.
3 JUDGE AGIUS: Go ahead.
4 Cross-examination by Mr. Bourgon:
5 Q. Good afternoon, sir.
6 A. Good afternoon.
7 Q. You are aware that Major Obrenovic, when he was accused before
8 this Tribunal, provided documents to the Prosecution on at least two
9 occasions; is that correct?
10 A. Yes. This is correct.
11 Q. So he provided documents immediately after pleading guilty in May
12 or June of 2003? Are you familiar with that?
13 A. I know that he provided documents in June 2003, and the next batch
14 of the documents provided actually not by him but his lawyer, it was
15 September 2003.
16 Q. Thank you for that. And you're correct, these documents were
17 provided indeed through his counsels. Now, among these documents, I take
18 it you're familiar with the fact that there were some daily combat reports
19 which were sent from the Zvornik Brigade; is that correct?
20 A. It's possible, yes.
21 Q. Is it possible or are you familiar with that? Did you look at
22 those documents that were given by Obrenovic to see what was in those
24 A. I look at these documents for sure but not recently.
25 Q. And when you looked at it, were you interested to find out whether
1 you had all the documents -- let me strike this question. When you
2 receive the Drina Corps archives, when you took possession, and after the
3 exercise of scanning and giving numbers to each of these exhibits, my
4 question is the following: Did you find daily combat reports and other
5 documents sent from Zvornik Brigade?
6 A. Yes, we did.
7 Q. And when you saw these documents being sent from Zvornik Brigade,
8 did you notice that these numbers -- that these documents were numbered in
9 a sequential manner? Is that one of your observations?
10 A. Yes, yes.
11 Q. And seeing that there was a sequential order to all these
12 documents sent from the Zvornik Brigade, my question is: Did you try to
13 collate all the documents to see how many and which ones you were missing?
14 For example, July 1995?
15 A. I don't recall exactly, but yeah, for sure, we noticed that some
16 documents are missing and we were sure that also a few of that documents
17 are in our possession already.
18 Q. Now, what I'm referring to is the documents from the archives,
19 let's set aside for now Major Obrenovic, I'll come back to him, but the
20 documents you have from the archives, did you -- did you make a report,
21 did you make the exercise of finding out how many documents you are
22 missing for July of 1995 based on that sequential order?
23 A. No, I didn't.
24 Q. To your recollection did anyone in the Office of the Prosecution
25 in the investigator's team did anyone perform such an exercise?
1 A. It was analysed for sure. It's possible that one of our analysts
2 was involved in this project but I have no details about it.
3 Q. So you can't share with us today how many documents you are
4 missing, I'm talking the documents sent from the Zvornik Brigade in July
5 of 1995? This is not something you can share with us today?
6 A. Yeah, this is correct. I cannot.
7 Q. With -- you will have to come back for further cross-examination.
8 Is this something that you can share with us when you come back for
9 further cross-examination?
10 JUDGE AGIUS: Yes, Mr. Nicholls?
11 MR. NICHOLLS: I think requests like that should probably be made
12 to us, to the OTP, and we will do what we can. Of course, I can't talk to
13 this witness about it but I don't think it's appropriate for counsel to
14 ask for the witness to do some kind of homework assignment before he comes
15 back for cross by Mr. Ostojic.
16 MR. BOURGON: Mr. President, maybe my colleague does not
17 understand where I'm coming from. I'm not asking him to do it from now
18 on. I'm trying to know whether this was something performed as part of
19 the investigation in this case. And if it was, can he bring the result
20 next time? I'm not asking him to do any work from now until then.
21 [Trial Chamber confers]
22 JUDGE AGIUS: Yes, Mr. Nicholls?
23 MR. NICHOLLS: Well, just -- he is asking him to do some work, and
24 that would require since the witness has answered the question that he
25 doesn't know, it would require him to talk to other team members about
1 his -- the subject of his testimony, which we have agreed not to do. So I
2 think that my friend should just stick to asking questions and taking the
3 answers. If he has any requests of us, we will talk to him about that.
4 JUDGE AGIUS: The problem, as I see it, Mr. Bourgon, is the
5 following: Your first question was asking for a confirmation from the
6 witness that really can't tell you how many documents may be missing or
7 are missing from this collection. He told you that he has no details
8 about it, he can't tell you more than that. You then clarified, and I
9 don't think you really needed to clarify because it was clear to us
10 already, that you're not asking him to do something else from now on,
11 you're just trying to elicit from him whether this was an exercise
12 performed as part of his investigation or the OTP's investigation in this
13 case and if it was can he bring the result next time. How can he do that
14 without consulting with the rest of the investigations team?
15 MR. BOURGON: Consulting to see if someone did it 'cause he
16 mentioned - I don't have the exact line right now, Mr. President - but
17 what I have what he answered to me is that he believes this is an analysis
18 that was performed. I'm trying to get whether by consulting with the
19 others, of course, see if the analysis was actually done. That's what I
20 want to know.
21 JUDGE AGIUS: He never said that he believes that this is an
22 analysis that has been done. He said it's possible that one of our
23 analysts was involved in this project. But I do not have details about
24 it. Yes, Mr. McCloskey?
25 MR. McCLOSKEY: Mr. President, I can share that information with
1 Mr. Bourgon and others, as I know it. I can do it after court. I can do
2 it in front of court. At any time. And we are always open for that.
3 JUDGE AGIUS: Okay. Shall we move, Mr. Bourgon?
4 MR. BOURGON: Yes, Mr. President I've only got a few more
5 questions for this witness.
6 JUDGE AGIUS: Go ahead.
7 MR. BOURGON: Thank you, Mr. President.
8 JUDGE AGIUS: Thank you, Mr. McCloskey.
9 MR. BOURGON:
10 Q. When you received those documents that were handed to the
11 Prosecution by Mr. Obrenovic, you mentioned earlier that some of these
12 documents you already had; is that correct?
13 A. But I think we had already at least a copy of or we have documents
14 with the same contents, but I don't recall now which one but I'm pretty
15 sure that we had already.
16 Q. Okay. Your answer was, and that was on page 29, lines 18 to 20,
17 "I don't recall exactly but yeah, for sure we noticed that some documents
18 are missing and we were sure that also a few of that documents are in our
19 possession already." So what you're saying is that a few documents with
20 the same contents but not the exact same documents? Is that what your
21 answer is today?
22 A. Maybe it was the same document but sent to another unit that say
23 the documents was sent to Bratunac Brigade or to Zvornik Brigade. We may
24 received one of these documents.
25 Q. And my next question is: From having included the documents given
1 to the Prosecution by Mr. Obrenovic, can you or are you in a position to
2 confirm that there are still gaps and documents that you are missing, and
3 again I'm referring specifically to documents sent by the Zvornik Brigade
4 or from the Zvornik Brigade in July of 1995?
5 A. I'm not in such position. I cannot confirm, I cannot -- no.
6 Q. And to your recollection, were any questions ever put by you or
7 somebody in your investigation team to Mr. Obrenovic as to why there were
8 still gaps in the -- in the number of documents sent by Zvornik Brigade in
9 July of 1995?
10 A. I don't know if this question was put to Mr. Obrenovic but it's
11 possible that there are gap and we are also -- yeah. I remember that the
12 OTP also conducted operation in Zvornik Brigade and Bratunac Brigade and
13 they found few documents at that time, and probably these documents were
14 never handed over, you know, to the Drina Corps collection when the Drina
15 Corps collection -- archive was collected by Drina Corps command.
16 JUDGE AGIUS: Yes, one moment, Mr. Bourgon.
17 MR. BOURGON: My last question, Mr. President --
18 JUDGE AGIUS: Yes, Mr. Nicholls?
19 MR. NICHOLLS: It's no objection, just to clarify, a little bit
20 complicated. My friend asked did you see that when you said earlier when
21 you received some documents from Mr. Obrenovic you realised that you
22 already had copies of those and then read back an answer from page 29 at
23 line 18. There on page 29 at line 18, the witness was actually answering
24 that when he went through the documents received from the Drina Corps
25 collection, he noticed that there were copies so I -- just for clarity, I
1 think that was not clear.
2 JUDGE AGIUS: Yes, Mr. Bourgon? I think it's clear enough.
3 MR. BOURGON: Thank you, Mr. President. I'll move on.
4 Q. As the investigator in this case, you are familiar with the fact
5 that some documents from the Zvornik Brigade were obtained from at least
6 three sources, and a search conducted at the Zvornik Brigade area? You're
7 familiar with that?
8 A. I know about this -- these events, yeah.
9 Q. And you know that documents were given by Major Obrenovic on at
10 least two occasions?
11 A. Yes, I know.
12 Q. And you're familiar with the results of the documents you obtained
13 from the Drina Corps archives which you had a chance to look at; is that
15 A. Yes.
16 Q. Now, looking at those, all those documents, if there are still
17 some gaps in the documents sent from Zvornik Brigade in July of 1995, were
18 you able to come up with any explanation?
19 A. This can be an explanation, somebody else except Major Obrenovic
20 or General Miletic or whoever had access to this Drina Corps collection
21 could get these documents but we can -- we have no confirmation of it.
22 MR. BOURGON: Thank you. I have no further questions.
23 JUDGE AGIUS: I thank you, Mr. Bourgon.
24 Mr. Sarapa? Mr. Sarapa, do you have any cross-examination for
25 this witness?
1 MR. SARAPA: No, we don't have any questions. Thank you.
2 JUDGE AGIUS: Which means we need to stop here, basically, because
3 I'm not asking you for re-examination before Mr. Ostojic finishes.
4 Mr. Blaszczyk, that's all for today. I apologise for the
5 inconvenience that you will have to return but it's something that we
6 couldn't avoid and we do appreciate your patience with us. Thank you.
7 THE WITNESS: Thank you, Your Honour.
8 [The witness stands down]
9 JUDGE AGIUS: It's time for the break in any case. Is there any
10 other further business that we can transact today?
11 MR. JOSSE: Well, I'm hoping that we're going to get this
12 explanation from Mr. Thayer that we were promised at the start of the
13 proceedings. It would be of some assistance to the Gvero team if we had
14 that explanation prior to deciding on our submissions.
15 JUDGE AGIUS: Yes. Yes, Mr. McCloskey? Thank you, Mr. Josse.
16 Can Mr. Thayer come down?
17 MR. McCLOSKEY: I think he's proofing at the moment. And we
18 now -- we know he's read the e-mail so I think we can get him during the
19 break. We would like to see where he is in the proofing session and I can
20 provide part of an answer, though this is obviously not going to be
21 satisfactory but I can begin but I think we should have Mr. Thayer in
22 after the break.
23 JUDGE AGIUS: Okay. We'll have a 25 minute break and then we'll
24 hear what Mr. Thayer has to tell us. And then we adjourn after that.
25 Half an hour? Half an hour break.
1 --- Recess taken at 3.45 p.m.
2 --- On resuming at 4.20 p.m.
3 JUDGE AGIUS: Let's start with you, Madam Fauveau. Your request
4 for certification, we've discussed. It's granted.
5 MS. FAUVEAU: [Interpretation] Thank you, Your Honour.
6 JUDGE AGIUS: And you follow it up from there. It's not going to
7 be followed by any written decision.
8 That's number 1. Mr. Thayer, yes.
9 MR. THAYER: Good afternoon, Mr. President. And Your Honours.
10 JUDGE AGIUS: Salvage operation.
11 MR. THAYER: Good afternoon, everyone.
12 The motion that we filed, I think, sets forth the factual
13 background pretty clearly and if we look at page 2 and actually look at
14 the 12 items which we've listed as proposed exhibits and for which we are
15 seeking to add to the 65 ter list, eight of them were in fact listed as
16 exhibits for General Nicolai on the 16 October submission of exhibits and
17 witnesses for the remainder of the Prosecution's case. So they have been
18 on that list for over a month.
19 In addition -- and I can tell you which numbers those are. Those
20 are numbers 2, 3, 4, 5, 6, 8, 9 and 10.
21 Also on the issue of notice, Your Honours, as we stated in the
22 motion, items 1, 2, 3, 4, 6, 8, and 9 were all specifically referred to by
23 ERN and discussed substantively in the witness's OTP witness statement and
24 were disclosed with that witness statement on 16 December 2005.
25 So again, there is no question of notice. These are all exhibits
1 which were explicitly discussed in this witness's -- and we are talking
2 about witness number 31 -- in his OTP witness statement.
3 Now, in fact, as I was getting ready for both of these witnesses,
4 I noticed that some of those exhibits had been disclosed to the Defence
5 under more than one ERN, which happens from time to time, documents from
6 different collections, even though they are identical get marked with
7 different ERNs. So a couple of days ago, just so there would be no
8 confusion when it comes to calling for exhibits on e-court by either
9 party, I went ahead and made hard copies of every single document that was
10 referred to in that OTP witness statement, although they had all been
11 disclosed previously almost two years ago. I made copies of all those
12 documents and placed them in Defence counsel's locker just so we were all
13 working off exactly the same ERN numbers, again, so there would be no
14 confusion. So with respect to those exhibits, again, I don't think there
15 can be any credible claim of surprise or having to fish around EDS or
16 anywhere else. It's all been in front of Defence counsel for a long time
17 and again, those numbers that I referred to at the outset were all listed
18 on our 16 October submission.
19 Now, there are a couple of documents, four, which were not listed
20 on the 16 October submission, and with respect to those, let me just
21 review item number 1, the notes of the telephone conversation on the 8th
22 of July at 0830 hours, again, that was part of the documents that were
23 referred to explicitly in the OTP statement. I had not originally
24 intended to use that as an exhibit in the examination-in-chief of that
25 witness, but I think as we saw in the cross-examination of General Smith,
1 the issue of protests to the warring parties, what was done in response to
2 certain actions by warring parties, for example, I think questions were
3 put to General Smith, well, when the Muslims did X, what did you do then?
4 This is an example of a phone call that was placed by General Nicolai to
5 the Armija specifically to complain about actions that they took that
6 resulted in the death of a Dutch soldier. I thought that became relevant
7 during the course of the cross-examination of General Smith and that is
8 why that has been added at this point.
9 That is the same rationale with respect to item 7, a protest
10 letter from General Janvier to General Mladic, again, the issue of protest
11 letters being issued during this time period. And I'll note that we
12 listed in our October 16th submission some other letters of protest from
13 UNPROFOR headquarters to, for example, General Delic protesting certain
14 conduct by the Armija against DutchBat, in fact, I've -- to try to save
15 time I've taken a couple of those items off the list so we don't have to
16 have so many of these letters of protest. But, again, the issue is not
17 one of surprise and is one that clearly the Defence has been interested in
18 as evidenced by their cross-examination of General Smith.
19 That leaves items 11 and 12. Again, which have both been
20 disclosed in connection with David Harland. They are Sector Sarajevo
21 weekly situation reports from the civil affairs office. I don't think
22 anybody here is surprised by these reports. We've made liberal use of
23 David Harland's reports. These two reports specifically concern events
24 during the VRS attack on Zepa. And these were added in response to
25 specific questions on cross-examination of General Smith pertaining to
1 complaints or allegations, reports, by the Ukrainian battalion that they
2 had been fired upon by VRS forces. In fact, those complaints and their
3 credibility was placed in direct question during the cross-examination of
4 General Smith. And in getting ready for these two witnesses, these two
5 documents I selected to address that issue with Witness 31, who, I think,
6 is well-placed given that he was Chief of Staff and was operationally
7 involved in events during this period of time to talk about these two
8 reports. Again, these aren't reports that have never been disclosed. I'm
9 happy, as I did with all of the other documents that were referred to in
10 the OTP witness statement, to make hard copies of any of these 12
11 documents that my friends can't readily find, but I honestly can't see how
12 anybody had to go on a hunting expedition for these but I will do what I
13 can, as I've done in the past, to try to make life a little bit easier
14 where I can. I'll make those hard copies available, whatever my friends
15 need by the close of business day. They are -- we can go right now,
16 anybody that wants, I can go to a copier and give them copies. Again, we
17 are responding to issues that are raised during the course of the trial.
18 There is no notice issue here. These are items that have been long ago
19 disclosed and are in most cases, as you can see from this list,
20 specifically referred to by these witnesses in their witness statements.
21 Now, why they didn't get a 65 ter number back in April of 2006,
22 all I can do is repeat what I've said on more occasions than I care to
23 recall. Would it have been perhaps a better practice to go through each
24 and every witness statement of each and every witness on our witness list
25 and slap a 65 ter number on each and every document that's referenced in
1 the witness statement and put that on our 65 ter list and to do the same
2 with respect to other exhibits that are coming up in prior testimony?
3 Perhaps. Perhaps that would have been better to do. But at the same time
4 the risk then is that our 65 ter exhibit list has to be burned on to five
5 DVDs and it becomes an impenetrable, incomprehensible, unduly burdensome -
6 to use the language of civil practice - exercise. And that's I think we
7 have hoped to make clear, that's something that we have no interest in
8 engaging in on this side. If anything, what we've done is we have cut our
9 exhibit lists too narrow and our witness list too narrow as the Court can
10 see from our request to add witnesses that, as we've gone through the
11 trial, we realise we should have put on to begin with but took off in our
12 zeal to present a streamlined case to this Court.
13 JUDGE AGIUS: Thank you, Mr. Thayer. Mr. Josse?
14 MR. JOSSE: Three brief observations. First of all, speaking for
15 myself, that is helpful and informative. We are grateful and we can work
16 on those submissions.
17 Secondly, I was going to suggest that it would have been useful if
18 we had been provided with hard copies of all 12 documents and I will
19 certainly take up my learned friend's offer in relation to that. But
20 beyond that, I'll reserve my position, if I may, until Monday as the Trial
21 Chamber had previously indicated.
22 JUDGE AGIUS: Thank you. I take it that you will read into that
23 as meaning that all the others would appreciate having the same copies
24 available. We are not talking of a big volume of documents here.
25 And then we'll reserve your position until Monday and as well our
1 decision on the question on Monday, if it's necessary to go that far.
2 All right? Okay.
3 Any further business? Do we have an idea as to whether 190 is
4 coming over tomorrow?
5 MR. McCLOSKEY: We are speaking to him right now or will soon be
6 speaking to him based on what we've heard so, hopefully, he's good enough
7 to see people now. So we are hopeful but we don't have any confirmation
9 JUDGE AGIUS: Okay. Anyway, we'll be here available tomorrow
10 morning to start the sitting at 9.00 as scheduled. All right? Thank you.
11 Is there any other business you wish to transact?
12 MR. McCLOSKEY: Mr. President, we -- in the event that the person
13 is not well, we do have one exhibit that requires an investigator to talk
14 about and we have begun discussions with the Defence about that, and it's
15 a book, we call it the Muslim identification book. It's pictures of
16 Muslims taken from the various videos at Potocari and other places and
17 where some people have been identified as being alive and some have been
18 identified as missing or dead and we could put an investigator on
19 tomorrow, if that is going to be a contested issue. Mr. Ruez has
20 testified about this, if anyone can recall back that far, but we do need
21 an investigator to lay out the process of how these various
22 identifications have been made if there is a challenge. I've begun to
23 remind my colleagues on the aisle what this exhibit is and I'm sure they
24 are looking at it and will have a view on it either tonight or tomorrow.
25 JUDGE AGIUS: Okay. We'll be here tomorrow morning at 9.00 and
1 we'll see what happens then. All right. Thank you.
2 --- Whereupon the hearing adjourned at 4.35 p.m.,
3 to be reconvened on Friday, the 23rd day of
4 November, 2007, at 9.00 a.m.