080207ED

Page 21179

1 Thursday, 7 February 2008

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 2.19 p.m.

5 JUDGE AGIUS: Good afternoon.

6 Mr. Registrar, could you call the case, please.

7 THE REGISTRAR: Good afternoon, Your Honours. Good afternoon

8 everyone in and around the courtroom. This is case number IT-05-88-T, the

9 Prosecutor versus Vujadin Popovic et al.

10 Thank you, Your Honours.

11 JUDGE AGIUS: Thank you.

12 All the accused are here. I'm looking at the Defence teams. I

13 notice the absence of Mr. Bourgon only and Mr. Krgovic, Mr. Krgovic. The

14 Prosecution, we have Mr. McCloskey, Mr. Nicholls and Mr. Thayer.

15 All right. Let me start with the leftovers from yesterday's

16 sitting.

17 Mr. Haynes and Mr. McCloskey, we had a short discussion yesterday

18 following the examination of your list of documents, Mr. Haynes rather

19 than Mr. McCloskey, with the Butler testimony, and at that time

20 Mr. McCloskey raised some issues in relation to two documents; that is,

21 witness statement of Sabic, Vejiz, 7D234 and that of Milan Maric, 7D272,

22 and the agreement was that you would have a tete-a-tete discussion

23 following the sitting and inform the Trial Chamber of the outcome of your

24 discussions.

25 What's the outcome, please? Mr. Haynes.

Page 21180

1 MR. HAYNES: We have created two new exhibits. I believe they

2 will be, when they're uploaded into e-court as they presently are, being

3 7D725 and 7D726. They are respectively the portions of those interviews

4 or witness statements which were either read to or read by Mr. Butler

5 during the course of his cross-examination, and I sent them by e-mail to

6 Mr. McCloskey. He's briefly had the opportunity to look at them. I hope

7 that it will be agreed that 7D725 and 726 will be tendered into evidence.

8 I've been reminded that I should point out to you that -- so that

9 they can be identified, those exhibits also include the first page of the

10 interview or witness statement so you know who it is. But other than

11 that, I think one is two pages and one is one page.

12 JUDGE AGIUS: All right. Thank you, Mr. Haynes.

13 Mr. McCloskey.

14 MR. McCLOSKEY: Yes, that's fine, Mr. President. We're fine with

15 that, the way he's defined it.

16 JUDGE AGIUS: All right. So the bottom line is you are no longer

17 requesting putting into evidence 7D234 and 272, and you're replacing those

18 by 7D725 and 726, to which there is no objection.

19 MR. HAYNES: Correct.

20 JUDGE AGIUS: Correct, Mr. McCloskey?

21 MR. McCLOSKEY: Yes, Mr. President.

22 JUDGE AGIUS: All right. So 7D725 and 7D726, even though it may

23 well be the case that they are not yet in e-court, are being admitted.

24 All right. Then yesterday, when we were discussing the Nikolic

25 Defence team list of documents, you, Mr. McCloskey, raised an objection in

Page 21181

1 relation to 3D274, which is an e-mail dated 13th January 2008, sent by

2 Ms. Stewart, on your behalf, to all the Defence teams, which I don't need

3 to read. Following the submissions, you agreed, at the invitation of the

4 Trial Chamber, that you would meet and try to come to a conclusion or to

5 an agreement. Have you reached an agreement, Ms. Nikolic?

6 MS. NIKOLIC: [Interpretation] Yes, Your Honour. I do believe we

7 have reached an agreement. Mr. McCloskey and I exchanged several messages

8 in that regard.

9 The witness was examined on the matters contained in

10 Mr. McCloskey's e-mail, and it is true that the document was not shown to

11 the witness. However, Mr. McCloskey and I agreed that there is no longer

12 an objection, and since the witness was asked some questions in relation

13 to this, Mr. McCloskey would no longer oppose the admission of this

14 document into evidence.

15 JUDGE AGIUS: Okay, thank you.

16 Mr. McCloskey, do you confirm that?

17 MR. McCLOSKEY: Mr. President, mostly. This e-mail was never made

18 reference to. Some of the subject matter in it was, and to that degree I

19 have no objection to the e-mail itself coming in.

20 JUDGE AGIUS: All right. One question to both of you. This

21 e-mail, in the first page at the top, there is an indication of all the

22 e-mail addresses of everyone. That includes Ms. Stewart's and that also

23 includes yours and Mr. Mitchell's. Do you wish to retain it as it is or

24 would you like at least to redact or -- redact that part which is not

25 necessary for the purposes that you intend the document --

Page 21182

1 MR. McCLOSKEY: If we could redact all those addresses, that's a

2 very good idea.

3 JUDGE AGIUS: Because I don't think they are of any use to

4 anybody, and if it's going to be public, I don't think this should be

5 public domain.

6 MS. NIKOLIC: [Interpretation] Yes, Your Honour, I agree too.

7 JUDGE AGIUS: All right. So, Mr. Registrar, you'll look after

8 this. Let me show you what I'm talking about.

9 [Trial Chamber and registrar confer]

10 JUDGE AGIUS: So we are redacting the entire top part of the

11 document, including who sent it and who were the addressees. I think from

12 the rest of the debate, it should be clear what we're talking about.

13 All right. That disposes of this second. So 3D274, with the

14 understanding that a part thereof that's being redacted, it's being

15 admitted.

16 Yes. Something which this was the easiest of all the issues we

17 left pending yesterday, I'm sure you have reached an agreement, a

18 stipulation, we're talking of P45, alias P1059.

19 Yes, Mr. Josse.

20 MR. JOSSE: I'm glad to say we have, Your Honour, although there

21 is one added complication which Mr. McCloskey will tell you about in a

22 moment.

23 So far as P1059 is concerned, we are prepared to stipulate that

24 this document was handed to the Office of the Prosecutor on the 18th of

25 February of the year 2000 by Nenad Petrusic, and I've discussed that not

Page 21183

1 just with Mr. McCloskey but also with Madame Fauveau, of course.

2 So far as P45 is concerned, we are prepared to stipulate that that

3 document was handed to the Office of the Prosecutor on the 2nd of June of

4 the year 2003 by Dragan Obrenovic.

5 So that's as far as we are prepared to go. As I say, there is now

6 an added complication which my learned friend will no doubt address you

7 about.

8 JUDGE AGIUS: All right. Thank you for your practical approach,

9 Mr. Josse, which is typical of you and which we appreciate.

10 Mr. McCloskey.

11 MR. McCLOSKEY: Yes, Mr. President.

12 Regarding the first one, 1059, that's correct, and the language

13 that Mr. Josse used is basically right out of our -- what we call

14 our "myth form," indicating how it was received. It's actually by Mr.

15 Mark Harmon from Mr. Petrusic.

16 The next one, number 45, is right out of the form. Actually, it

17 was received by counsel for Obrenovic, Dusan Slijepcevic. I have the

18 actual forms, if that's easier. I don't really -- It doesn't matter to

19 me, if it's just part of the oral record and the form.

20 And the interesting addition to that is I'd asked, oh, for one

21 last complete review of our collections to see if it might -- this

22 document might be found in another form, and it was found -- an original

23 copy of it was found in the Drina Corps collection. And I have a 65 ter

24 number just given to me by Ms. Stewart, 3205. It came under the name of

25 Ulan Gazero [phoen], so we had to get a little trickier in our search to

Page 21184

1 find that; but it's clearly the identical document that came from the

2 Drina Corps. It's not loaded in e-court. I would like to offer that into

3 evidence, as it appears to be contested. I guess it's M. Ulan Gazero, to

4 be more exact, is how it came out, but it's clearly the identical document

5 from the Drina Corps collection, so that you now see this document coming

6 from Mr. Obrenovic and coming from the Krstic Defence team, and now the

7 Drina Corps collection. And this document is also -- the number of it --

8 the VRS number 34-1629, is referred to in other documents in this case,

9 and I won't go into that, but that is roughly the history of this. And I

10 think you having the complete history is a good idea in this particular

11 situation, but I don't feel the Prosecution needs to go any further into

12 it.

13 JUDGE AGIUS: Is it identical to the other two?

14 MR. McCLOSKEY: Yes. In my -- it's clearly the same document. I

15 haven't looked at it to see if there's -- you know, teleprinters sometimes

16 do different things, but it's clearly the same number document, the

17 wording is the same, and -- sorry, it was 3250 is the -- we've reversed

18 some numbers ourselves. So the Drina Corps 65 ter number is 3250, and

19 from our brief review of it, it's clearly the same document. We have not

20 done an analysis to see what other, maybe, mistypes in the teleprinter or

21 other things are on it, but it's clearly the same document. And it's an

22 original, as I mentioned.

23 JUDGE AGIUS: If it's the same, I think I know the answer, but if

24 it's the same, why do you want to make it three if you've already got two

25 of the same document?

Page 21185

1 MR. McCLOSKEY: Well, because there appears to be a challenge to

2 the authenticity, and -- you know the history of Mr. Obrenovic's retrieval

3 of the document. The history of the document that came from the Krstic

4 Defence came from the RS, which is -- is my understanding is a whole other

5 history. And so I think the third time is the charm on this one. It came

6 from the Drina Corps, so I think that those three things should establish

7 its authenticity beyond any possible reasonable doubt, which of course is

8 my objective here.

9 JUDGE AGIUS: Yes. Thank you, Mr. McCloskey.

10 Mr. Josse.

11 MR. JOSSE: I would not like to suggest that the authenticity of

12 the document is not in dispute. A double negative, I'm sorry, but I'm

13 sure the Court gets the gist of what I'm saying. There again, in effect,

14 this document is being offered up today from the Bar table, and I also

15 appreciate that it might be said, with some justification, that the

16 Defence have brought this upon themselves because of the stance that we

17 have taken in relation to 45 and 1059. That I also recognise.

18 The Chamber may or may not be aware that there is to be an

19 application by the Prosecution to adduce a not-inconsiderable number of

20 other documents, in effect, through the Bar table. Mr. McCloskey has

21 explained a technical reason, which I accept, as to why this document is

22 not in that motion, largely because it's late discovery. He and I only

23 discussed the matter at about noon today. What I would invite the Chamber

24 to do is to allow the Defence to lump this document in with the Bar table

25 motion and to respond at that particular juncture. In other words, we'd

Page 21186

1 ask for some time before responding to the submission.

2 So I know it further complicates matters, but I rather think that

3 matters are going to have to be put off in relation to this Prosecution

4 motion. I don't want to jump the gun here, and I certainly don't want to

5 do the Prosecution's work for them in relation to that particular motion

6 or application, but perhaps this document could join that list as well.

7 JUDGE AGIUS: Thank you, Mr. Josse.

8 Let me make myself clear, my mind clear on this. And if my

9 colleagues don't agree, then obviously not.

10 As I see it, we raised the issue of MFI'd documents because we're

11 approaching the Rule 98 bis decision -- proceedings. There are already

12 two of these documents, identical, identical twins, and I understand that

13 the differences are, I think in the English translation they are off,

14 rather than the original text; and the question of provenance that hung

15 over our heads yesterday has now been removed. The question of

16 authenticity, as such, can remain unprejudiced, taking up what you have

17 suggested, in; in other words, because the three of them will go in the

18 same basket. However, our position is that for the time being, we agree

19 with your suggestion that rather than deciding on 3250 now, we lump it

20 with -- we group it with the other documents that we are waiting to hear

21 from Mr. McCloskey about.

22 But what is your position as regards 45 and 1059, because I think

23 you need to have that crystallized for the purpose of Rule 98 bis.

24 MR. JOSSE: I dealt with that, Your Honour. When I stood up, I

25 asked what the stipulation was. That was the stipulation we made so far

Page 21187

1 as 45 and 1059 is concerned.

2 JUDGE AGIUS: All right.

3 MR. JOSSE: I can also give the Court this cast iron guarantee

4 that 3250 will not make a jot of difference to the 98 bis submission.

5 JUDGE AGIUS: That's what I think as well, but we won't deprive

6 you the opportunity of making submissions.

7 So 45 and 1059 will come in. The other one will stay in limbo

8 together with the others until we dispose of the matter.

9 MR. JOSSE: Thank you.

10 JUDGE AGIUS: Okay, thank you.

11 Aerial images, and specifically we're dealing with MFI'd documents

12 P2103 and P1516. If there are others, they will be put in the same

13 baskets. If there are others, the identification of we are not aware of

14 at the present, they will have the same treatment.

15 We have, in the time we had, carefully considered your submissions

16 relating to the aerial images until now MFI'd with the numbers I mentioned

17 before, 2103 and 1516, and we have done so together with the consultation

18 of the relevant transcripts of past sittings, when we dealt with the

19 issues of -- various issues relating to aerial images, aerial imagery.

20 Our decision is that the reasons adduced by you, Mr. Ostojic, particularly

21 yesterday, for not admitting these documents go to weight rather than the

22 criteria necessary for admission. The Trial Chamber is satisfied that

23 sufficient evidence on the relevance and the probative value of these

24 aerial images has been adduced by the Prosecution. Therefore, all aerial

25 images introduced are admitted without prejudice, of course, to the weight

Page 21188

1 that should or should not be given to them at the end of this case.

2 That disposes of aerial images.

3 Skorpion video.

4 MR. NICHOLLS: Good afternoon, Your Honours.

5 We have received an agreement on that. We were talking about it a

6 lot yesterday, and I have a written stipulation I can pass out. It's been

7 passed out to my friends.

8 JUDGE AGIUS: We haven't seen it.

9 MR. NICHOLLS: Yeah, I have it here. This is -- I've got it here,

10 sorry.

11 JUDGE AGIUS: No, no, no. I mean, I thought I was looking at a

12 record stipulation, which would have gone in the "Guinness Book of

13 Records."

14 MR. NICHOLLS: Your Honour, I thank my friends, because I've been

15 talking with many of them this week and yesterday to resolve the language

16 of this stipulation. This has not been loaded up into e-court yet, but it

17 means that we will not be able to call the witness. I believe he was

18 PW-103. We will not be calling --

19 JUDGE AGIUS: That was the whole purpose of --

20 MR. NICHOLLS: Yes. So if I can just say we've provisionally

21 assigned the numbers 3248 to this stipulation, which is not in e-court

22 yet, but it will be. As I say, we were working it out yesterday afternoon

23 and throughout the court sitting yesterday.

24 The actual video which was played on November 3rd of 2006 would be

25 3249, and the transcript would have the same number.

Page 21189

1 While I'm on my feet, when we're done with this, I have a few more

2 short stipulations I could run through at this time or later, however the

3 Chamber pleases.

4 JUDGE AGIUS: Okay, thank you.

5 Do I have a confirmation of this from the various Defence teams?

6 If anyone does not agree that this stipulation has been reached or does

7 not agree as to the contents of this stipulation, please stand up. None.

8 So this is your stipulation. I think the document itself needs to

9 be given a number.

10 MR. NICHOLLS: Yes. That would be 3248, Your Honour.

11 JUDGE AGIUS: But I understood you --

12 MR. NICHOLLS: And the next number, 3249, would be --

13 JUDGE AGIUS: All right. This is 3248, and the video will be

14 3249. Okay. So that disposes of the Skorpion video matter.

15 Yes. You may proceed on the other stipulations.

16 MR. NICHOLLS: Thank you, Your Honour.

17 Again, I thank my friends. We've reached an agreement, so we will

18 not need to call back Alistair Graham, and I'll pass that to you now.

19 We've got a book that's been passed out to the Defence. It's the

20 identical book that was passed out last week, I think, if I could hand

21 those to Your Honours. That's just for the Chamber, Your Honours.

22 JUDGE AGIUS: Yeah. We need one more for Judge Kwon here.

23 [Trial Chamber and registrar confer]

24 MR. NICHOLLS: Now, Your Honours, I think the stipulation which is

25 written on page 1, the first stipulation of this exhibit, makes it quite

Page 21190

1 self-explanatory. It concerns a 12th of March, 2002 interview with

2 Mr. Borovcanin and the discussion of the video DVD which was played at

3 that time. In order to make sense of that interview and follow it, Your

4 Honours need to be able to tell what still image is being discussed in the

5 transcript, and that is the purpose -- the main purpose of this book.

6 The still images are the best that could be copied from the video,

7 and the video is also in evidence. This will be number 3246.

8 And, again, I thank the Borovcanin team, in particular, for being

9 very cooperative on working on this stipulation.

10 JUDGE AGIUS: Does anyone of the Defence teams wish to address the

11 Chamber on this stipulation and document? We hear none.

12 So this document, P3246, being stipulations relating to excerpts

13 from the video and interview with Ljubomir Borovcanin, is being admitted

14 and it will form part of the records.

15 Next.

16 MR. NICHOLLS: The third, Your Honour, is a very simple

17 stipulation with regard to the evidence of Witness 42, who is not a

18 protected witness, Ahmo Hasic, and it has to do with his description of

19 the school that he was held in Bratunac. And I can either read out this

20 short stipulation into the record, it's a few sentences, or I can pass it

21 out, whichever the Chamber or the Defence prefers. It's been agreed upon

22 by e-mail with the Defence.

23 JUDGE AGIUS: It being e-mail, I would prefer if he reads it out

24 so that we make sure that everyone has received the e-mail and everyone is

25 happy with it.

Page 21191

1 Go ahead.

2 MR. NICHOLLS: I'll read it out, then:

3 "In his testimony, witness Ahmo Hasic (Witness 42) referred to the

4 school where he was detained in Bratunac as the 'Vuk Karadzic' school. In

5 a proofing session on 13 July 2003, the witness circled a building on an

6 aerial photograph of Bratunac, ERN number 0297-8872-0297-8873, and stated

7 that he was 90 per cent sure that this was the building in which he had

8 been detained. The building circled by the witness is the 'old school' in

9 Bratunac, not the 'Vuk Karadzic' school. The old school in Bratunac is

10 located next to the Vuk Karadzic School."

11 That's the end of the stipulation. And the reason for that very

12 briefly, Your Honours, is that this circling of the building was something

13 that had been done in proofing back in 2003. That was disclosed to the

14 Defence, but it didn't come up in his direct or his cross-examination,

15 just this little discrepancy of the description, and we thought it should

16 be before the Chamber just for the whole picture.

17 JUDGE AGIUS: Thank you.

18 Does any one of the Defence teams wish to address the Trial

19 Chamber? Yes, Mr. Ostojic.

20 MR. OSTOJIC: Thank you, Mr. President, Your Honours.

21 Not on this issue, but we do have other -- I have other issues,

22 but not on this issue.

23 JUDGE AGIUS: We'll come to you.

24 Yes, Mr. Nicholls.

25 MR. NICHOLLS: The last item on my personal list: At the end of

Page 21192

1 the Witness Zoran Petkovic, I stated that I wanted to put in the

2 transcript of the Studio B video footage documentary. There was no

3 objection, but I said that we were going to, with the cooperation of my

4 friends, revise the transcript to make sure it was correct. We've done

5 that. The revised transcript is in e-court, and the number is P02012, and

6 so now I just formally want to ask that that be admitted. As I say, there

7 was no objection.

8 JUDGE AGIUS: Any objection from the Defence teams? We hear none,

9 so that addition of the video is being admitted.

10 MR. NICHOLLS: Thank you.

11 JUDGE AGIUS: Thank you.

12 Now, just to make you feel more comfortable, Mr. Ostojic, you have

13 the floor.

14 MR. OSTOJIC: Thank you, Mr. President.

15 Yesterday, my learned friend Madam Nikolic addressed you with

16 respect to the 92 quater motion that was filed, and we were seeking an

17 extension of time. We had agreed to a stipulation with the Prosecution

18 and we need your permission. And I perhaps gave the wrong information.

19 Our stipulation, in fact, was for ten days, and we were going to file the

20 response, and we're hoping to get it jointly, the Defence is meeting on

21 this, by the 22nd of February, which is two days as opposed to the 20th,

22 in light of the scheduling of the 98 bis going into the 20th.

23 So just so that the Court is clear on that, with your permission,

24 we'd like to have leave to have an extension to file that respond on the

25 22nd.

Page 21193

1 JUDGE AGIUS: All right. Permission granted.

2 MR. OSTOJIC: Thank you.

3 JUDGE AGIUS: Thank you. All right, so ...

4 During the testimony of PW-168, a protected witness, I think it

5 was the Popovic Defence team made use of the statements of three persons.

6 I'm referring to documents 1D383, that being the statement of a certain

7 Nebojsa Jeremic, 1D432, that being the statement of a certain

8 Zoran Jovanovic, and 1D438, that being the statement of a certain

9 Ljubisa Dijolovic [phoen]. These three persons did not testify in these

10 proceedings, in this trial, but their statements, as I said, were used

11 during the cross-examination of the Popovic Defence team. We had MFI'd

12 them at the time and not admitted them, pending our decision as to whether

13 it is appropriate to admit them.

14 We have given this our consideration, and our decision is to admit

15 these three documents under the same terms and for the same reasons as

16 explained in our yesterday's decision re. the Defence motion dealing with

17 the Momir Nikolic statement of facts. So for the same reasons, we -- and

18 under the same terms, we are admitting these three documents.

19 All right. Now, yesterday you will recall that I referred to two

20 pending motions, namely, the one --

21 [Trial Chamber confers]

22 JUDGE AGIUS: I'll return to these two pending motions shortly.

23 Speaking of documents that are still MFI'd and which we would like

24 to regularise, if necessary and if possible, we submitted to you a list,

25 and we are anxious to hear your position.

Page 21194

1 I will start with P2754, which was tendered during the testimony

2 of Witness Milovanovic.

3 Mr. Thayer.

4 MR. THAYER: Good afternoon, Mr. President. Good afternoon, Your

5 Honours. Good afternoon, everyone.

6 JUDGE AGIUS: This is a Main Staff document, not to be confused.

7 MR. THAYER: Yes. Thank you, Mr. President.

8 My understanding is that this was discussed by Mr. Butler, as the

9 Chamber has already pointed out. It was tendered through

10 General Milovanovic's testimony. I understand that there is no objection

11 from the Miletic Defence team. I note that in particular because this is

12 a document bearing General Miletic's name.

13 JUDGE AGIUS: All right. The problem seemed to be at the time

14 authentication.

15 MR. THAYER: In my understanding, there's no challenge to the

16 authenticity of the document.

17 JUDGE AGIUS: All right.

18 Does any one of the Defence teams wish to comment?

19 Ms. Fauveau.

20 MS. FAUVEAU: [Interpretation] No, Mr. President. This is just to

21 confirm what my colleague says. Indeed, this document was used with this

22 person, and -- with Mr. Butler, and it was furnished by this person.

23 JUDGE AGIUS: Okay, thank you. So this document is admitted.

24 We come to P2498. Now, this was tendered during the testimony of

25 a protected witness, that was Witness number 49. I won't mention his

Page 21195

1 name. And if we need to mention his name, then we need to go into private

2 session. 2498, this was an UNPROFOR MIMO from David Harland.

3 MR. THAYER: Yes, Mr. President, and if I may, it may save a

4 little bit of time to discuss it in tandem with the next document as well,

5 P02499.

6 JUDGE AGIUS: Yes, which is exactly another document from

7 David Harland.

8 MR. THAYER: Yes. The documents, as the e-mail notes, were

9 originally tendered through this witness. What we soon found was that

10 both parties were making liberal use of these reports and updates from

11 Mr. Harland to Mr. Ryan. Subsequently, following the testimony of

12 Mr. Joseph, the Trial Chamber specifically asked that all of the reports

13 be compiled into a packet and tendered. We have done so.

14 Initially at the time, and this was back, I believe, on August

15 27th of 2007, following Mr. Joseph's testimony, I furnished my friend from

16 the Gvero team an initial copy of the packet. That's been augmented by

17 three other reports, one of which is 2499, and we now have a complete

18 packet. It numbers 18 tabs. There were 16 reports plus two others that

19 were related, all authored by Mr. Harland. I have four sets for Your

20 Honours with the Registrar for distribution.

21 I haven't had much of an opportunity to discuss with my colleagues

22 whether there are any objections. There certainly was none back in

23 August. In fact, the one team that was on the record with respect to the

24 Court's indication that it wished to have these compiled was in full

25 agreement. So we're simply complying with the Court's request, and that

Page 21196

1 would apply to both of these documents.

2 JUDGE AGIUS: Thank you.

3 Does any one of the Defence teams wish to comment?

4 Mr. Josse.

5 MR. JOSSE: Well, since we've been referred to specifically there,

6 and for understandable reasons, we do not object to this course of action.

7 We've known about it for some time.

8 JUDGE AGIUS: Yes. And, in fact, I vividly remember I think it

9 was probably yourself expressing a wish to have this compilation because

10 of its eventual utility.

11 MR. JOSSE: Precisely.

12 JUDGE AGIUS: All right.

13 What is not clear in my mind is whether we are going to retain

14 2498 and 2499 or whether this is in substitution of either or both of

15 them.

16 [Trial Chamber confers]

17 JUDGE AGIUS: Is this a new document?

18 MR. THAYER: Mr. President, if I may have a moment to consult with

19 our technical expert on this.

20 Mr. President, Ms. Stewart advises me that we can put in this

21 entire packet as one document.

22 JUDGE AGIUS: All right.

23 MR. THAYER: The index does note the documents that have separate

24 65 ter numbers, but we can put the entire packet, and that will be 65 ter

25 3251.

Page 21197

1 JUDGE AGIUS: Any objection? No. We hear no objection.

2 One question again, Mr. Thayer -- yes, Mr. Josse, sorry.

3 MR. JOSSE: After the question, Your Honour. It's on a slightly

4 different but related subject.

5 JUDGE AGIUS: Okay. One question, Mr. Thayer. I notice that in

6 this document, one of the other two documents, 2499, is included, but I

7 don't see 2498, although on the second page I do see 2948. What I want to

8 clarify is to make sure that 2948 has not been mistaken for 2498, and if

9 it's not, whether that means that 2498 needs to be dealt with separately,

10 albeit within the same context of the discussion.

11 Did I make myself clear?

12 MR. THAYER: You did, Mr. President. I'm just cross-checking with

13 the hard copy as I speak.

14 Mr. President, you're correct, that is a -- no, I stand -- let me

15 withdraw that.

16 Tab number 13 should be listed as 2498, and the tab number -- or

17 the 65 ter number tab 15, I believe, is correct, 2948. We were just

18 missing 2498.

19 JUDGE AGIUS: Okay. So that simplifies the matter. 2498 and 2499

20 that were tendered separately during the testimony of Witness number 49

21 are admitted, and similarly we are admitting this new document, 3251,

22 which is a compilation of the various David Harland memoranda.

23 Okay, Mr. Josse.

24 MR. JOSSE: Could we go into private session for a moment, please.

25 JUDGE AGIUS: Let's go into private session for a short while,

Page 21200

1 2671, and that should suffice.

2 Always with the same document, we used 209, which is another

3 Podrinje Brigade combat report. Do you wish to address the Chamber,

4 Mr. Thayer?

5 MR. THAYER: Yes, Mr. President.

6 With respect to this document, it was used with Witness 49 on his

7 redirect examination, specifically on the issue of whether the VRS had

8 adhered to various promises that were made in prior agreements. That was

9 an issue pressed on cross-examination. This document was then shown to

10 the witness on the Prosecution theory that it might elicit his comment or

11 elucidation as to whether that, in fact, was the case.

12 At the time, the Trial Chamber wanted to MFI this document,

13 pending use with another witness. This did not become used through

14 another witness. However, I think that the -- that the totality of the

15 evidence that has come in through other witnesses so far, consistent with

16 the Prosecution's theory of the case, warrants the admission of this

17 document, which is probative and relevant of a couple of issues that are

18 very much alive in the case. The first is the nature of this mop-up

19 operation after the transportation of the civilian population from Zepa.

20 It is consistent with the charged events or the named events in the

21 indictment, namely, Nezuk and Snagovo, where what we had was a pattern of

22 systematic, on-the-spot executions of groups of prisoners who were found

23 as this mop-up operation continued. This is perfectly consistent --

24 JUDGE AGIUS: One moment.

25 Yes, Madame Fauveau.

Page 21201

1 MS. FAUVEAU: [Interpretation] I object to what the Prosecutor has

2 said. The document refers to the events in Zepa, but has nothing to do

3 with Snagovo and Zvornik. So I would like the Prosecutor to limit himself

4 to what is said in the document.

5 JUDGE AGIUS: Yes. Thank you, Madame Fauveau. We don't have the

6 document in front of us at the moment. I have got notes on it. But what's

7 your position on this objection?

8 MR. THAYER: My position remains, Mr. President, that this

9 document is entirely consistent with what the Prosecution has alleged in

10 connection with the mop-up operation after the Srebrenica operation. And

11 that goes specifically to the reasonableness of fear that the male

12 population of Zepa had at the time that they were faced with the decision

13 of whether to stay or whether to flee. Males of all ages were faced with

14 that.

15 You heard a lot of testimony about what the men in Zepa knew about

16 what had happened in Srebrenica, when they knew about it, and how that

17 information impacted on their decision. What this document shows, and

18 this is not just idle conversation by a VRS officer, this is a daily

19 combat report from a commander, Lieutenant Colonel Rajko Kusic, the 1st

20 Podrinje Light Infantry Brigade, to the Command of the Drina Corps,

21 describing using ethnically-derogatory terminology, referring to these

22 people who were killed as "balijas," it describes basically executing an

23 unarmed, starving individual in the Zepa area.

24 JUDGE AGIUS: Yes, Madame Fauveau.

25 MS. FAUVEAU: [Interpretation] If the Prosecutor really wants to

Page 21202

1 keep this argument, he has to keep to the text. There is -- you don't

2 have the word "not armed," so could he read the document as is, because

3 there's a risk of not presenting it properly.

4 JUDGE AGIUS: Thank you, Madame Fauveau.

5 Mr. Thayer, let me put a very blunt question to you. Did you have

6 advanced notice by any of the Defence teams that they were objecting --

7 they're going to object to the admission of this document?

8 MR. THAYER: Beyond the --

9 JUDGE AGIUS: Today, I mean, or yesterday or today?

10 MR. THAYER: Not today.

11 JUDGE AGIUS: So why surround yourself or build around yourself a

12 battleground?

13 MR. THAYER: Mr. President, precisely because I'm being asked the

14 basis for which this should be admitted, and I'm offering that to the

15 Court.

16 JUDGE AGIUS: But if you had no notice of a pending objection, why

17 go into details, which might trigger an objection?

18 MR. THAYER: Mr. President, in answer to my friend's question, I'd

19 be pleased to read the language that I'm being accused of leaving out, and

20 that is specifically:

21 "The same day, in the vicinity of Luca, an unarmed Ustasha, born

22 in Srebrenica, 24 years old, was liquidated. Before he died, he said that

23 he fell behind the others and he was looking for food."

24 JUDGE AGIUS: Yes.

25 [Trial Chamber confers]

Page 21203

1 MS. FAUVEAU: [Interpretation] There seems also to be a translation

2 problem. This is why I object to this document, because the translation

3 does not correspond to the official text, the B/C/S text.

4 JUDGE AGIUS: Yes. Any further comments, any further objections?

5 Mr. Josse.

6 MR. JOSSE: Well, I come here to argue this procedurally, not

7 substantively.

8 My learned friend's interesting and very emotive address relates

9 to the substance in his assertion that this document is relevant. I

10 suspect that could be said of a great number of documents which are not in

11 evidence. The Prosecution and, indeed, the Defence could create

12 arguments, true or otherwise, as to why they support one or other side's

13 case. I thought that we were here to examine procedural matters.

14 JUDGE AGIUS: Admissibility, and that's it.

15 MR. JOSSE: What had happened is what Mr. Thayer has rightly

16 described, which was it wasn't admitted at that point because it was going

17 to be put to another witness.

18 JUDGE AGIUS: Yes.

19 MR. JOSSE: It hasn't been put to another witness. The Trial

20 Chamber now needs to decide whether it should be admitted. In effect,

21 what he's saying is it again should join the motion, I suppose, in

22 relation to documents coming from the Bar table, because that's really

23 what he's doing, and he's getting a first shot in and making a nice

24 rather emotive speech which understandably is upsetting my learned,

25 Madame Fauveau, who's objection I agree with wholeheartedly, and stirring

Page 21204

1 up a hornets' nest, when it's purely a procedural issue in our submission.

2 JUDGE AGIUS: The thing is, Mr. Josse, I don't quite read you,

3 when you say it could go with the rest, because it was used with one

4 witness, and it was MFI'd precisely because there was a suggestion at the

5 time, an objection at the time, that that particular witness knew nothing

6 about the document.

7 MR. JOSSE: Yes.

8 JUDGE AGIUS: The difference between this one and the previous one

9 is that the previous one was used with another witness, while this one

10 wasn't, but it was still used with this witness. My understanding of

11 what's to come, the pleasures yet to come, is that they have not been used

12 with any witness.

13 MR. JOSSE: That's right. To encapsulate, in our submission, that

14 is, on behalf of General Gvero, the submission is that it was MFI'd at the

15 time on the basis that it had not been proved sufficiently relevant to be

16 admitted at that juncture, that it would be shown to a subsequent witness,

17 and at that juncture might be admitted into evidence. Procedurally, that

18 hasn't happened. In our submission, it shouldn't be admitted. My

19 objection is as limited as that, technical I accept.

20 JUDGE AGIUS: My information is because that day I was sick

21 eventually and I went home, and that's where the matter ended.

22 There were two objections at the time. One was that this came on

23 you as a surprise and you were not prepared for cross-examining the

24 witness on it, and, do you remember, this was used on redirect and you had

25 no advanced notice of it, and, second, that the witness knew nothing about

Page 21205

1 this document and they should be used with the subsequent witness. That's

2 what I have on record.

3 MR. JOSSE: Your Honour, that's right. My objection was at 9888

4 of the transcript, and again speaking for our team, if the Trial Chamber

5 wanted to decide the issue based on the arguments at that juncture, then

6 we have no difficulty. But we do have a great deal of difficulty the way

7 Mr. Thayer is approaching the matter today.

8 JUDGE AGIUS: Yes, thank you.

9 Yes, Mr. Meek.

10 MR. MEEK: Just shortly, Your Honour, the Beara Defence team would

11 join with Mr. Josse and point out that there's also a difficulty, we

12 believe, in the representations made at the time by the Prosecutor,

13 that, "We will put it to another witness," and they haven't done it.

14 JUDGE AGIUS: That happens, and we have -- we all have experience

15 of trial -- trial experience, and we know why it happens.

16 So, yes, Mr. Thayer, you have the last word.

17 MR. THAYER: Mr. President, I don't think I have anything further

18 to add to what I've already said. I'm just trying to address this issue

19 in the most efficient manner I thought it presented itself to me, which is

20 to move it in now.

21 JUDGE AGIUS: Yes, thank you.

22 [Trial Chamber confers]

23 JUDGE AGIUS: Mr. Josse, Mr. Thayer, Ms. Fauveau, especially the

24 three of you, because you are the ones who contributed to this very useful

25 debate, we agree with most of what you said, Mr. Josse, and also with what

Page 21206

1 you said, Madame Fauveau, that, strictly speaking, the debate should have

2 been limited to what is procedurally required to be proven by the

3 Prosecution for the purpose of admissibility.

4 Now, as we see it, it's as follows: From an examination of the

5 records that we have, and we stand to be corrected if it's not so, but it

6 doesn't appear to us that at any time the provenance or the authenticity

7 of this document was challenged, which would leave us the task of

8 examining whether, for the purpose of admissibility under Rule 89, the

9 Prosecution has proven relevance and probative value.

10 The question that -- it looks from the records that supposedly

11 this document was to be used or the preference shown was that it would be

12 used with some other witness, of course carries its own weight, but that's

13 not for the purpose of admissibility. We don't believe that the fact that

14 a witness has not been used -- a document has not been used with a witness

15 or with more than one witness disqualifies that document from being

16 admitted.

17 We are satisfied that, overall, both the relevance and the

18 probative value of this document has been proven, so it is being admitted

19 with the caveats that I mentioned before. So that disposes of that one.

20 108. This was used with Witness Trivic, and it's a Drina Corps

21 Command order.

22 MR. THAYER: That's correct, Mr. President, and we are in exactly

23 the same situation with this document, I think, as we were with the former

24 one.

25 JUDGE AGIUS: Yes.

Page 21207

1 MR. THAYER: Again, this was used on redirect with Colonel Trivic

2 based upon the Prosecution's belief that, on cross-examination, the

3 related issues of whether the Krivaja-95 attack was something that had

4 been planned substantially ahead of time or which was something that was

5 more of an ad hoc plan, and also tied to the treatment and planned

6 treatment of UN personnel by the VRS, there was cross-examination

7 throughout the trial not only of Colonel Trivic but of other witnesses

8 where various documents were shown by my friends to witnesses,

9 highlighting language to the effect of, "We will treat UNPROFOR properly,

10 correctly. They are not our enemy. We will not attack UNPROFOR," and so

11 forth.

12 Now, given the discussion we just had, I'll leave it there. There

13 was no -- there was no further witness who was examined with this --

14 JUDGE AGIUS: We know that.

15 MR. THAYER: -- With this document, which was again used with

16 Colonel Trivic to address those issues of evidence to the contrary.

17 JUDGE AGIUS: Okay. Any objections?

18 Mr. Josse.

19 MR. JOSSE: Well, Your Honour, without wanting to go behind the

20 previous decision, perhaps the Defence are on slightly stronger ground

21 here.

22 At page 12135 of the transcript, having heard our objections, Your

23 Honour, the learned Presiding Judge, said this:

24 "So our decision on 65 ter number 108 is since it hasn't really

25 been used with Witness 109, Mirko Trivic, it will not be admitted now. It

Page 21208

1 will remain marked for identification until used with some other witness.

2 If not, it will remain marked for identification and then it will

3 disappear from the list."

4 In our submission, the Court should stand by that decision made at

5 that time.

6 JUDGE AGIUS: Okay. With the caveat -- I think you've clarified

7 part of the issue. With the caveat that contrary to the previous one,

8 since it was not used with that witness and it was not used with any other

9 witness, it can come in or the Prosecution can seek to bring it in

10 together with the other documents that they are apparently going to offer

11 from the Bar table, because the same argument you mentioned before applies

12 mutatis mutandis for this one.

13 MR. JOSSE: Of course I accept that, and we all, all seven Defence

14 teams, are going to need to address fully this important development.

15 JUDGE AGIUS: Definitely, definitely.

16 [Trial Chamber confers]

17 JUDGE AGIUS: So there is no P0108 for us to consider at the

18 present moment, in conformity or pursuant to our ruling that Mr. Josse has

19 referred to. Do you wish to have it included in the list of documents

20 that you intend to submit, you're free to do so, and then of course

21 without prejudice to what happens after.

22 345. Now we're coming to Witness Barr, and 345 is a

23 Zvornik Brigade report.

24 MR. THAYER: Yes, Mr. President. This report to the Bijeljina

25 military prosecutor was in fact admitted under a different 65 ter number,

Page 21209

1 and that came in as P00386 through the testimony of Nebojsa Jeremic. I'm

2 afraid I don't have his witness number off the top of my head. It may

3 have been 135 -- 137, I'm informed, Mr. President.

4 JUDGE AGIUS: Mr. Registrar, check whether he was a protected

5 witness or not.

6 MR. THAYER: He was not, Mr. President. He testified in open

7 session.

8 JUDGE AGIUS: Okay.

9 MR. THAYER: And the date of that admission was 25 April 2007.

10 JUDGE AGIUS: Do you agree to that, Mr. Ostojic, because you were

11 the one mostly involved in the admissibility of this document.

12 MR. OSTOJIC: We do, Your Honour.

13 JUDGE AGIUS: Okay, thank you.

14 So there is no point in discussing it any further, the admittance

15 of -- admission of 345, because it has been admitted under P386.

16 Okay. We also had document 935, P935, which is the IKM logbook.

17 MR. THAYER: Again, Mr. President, that was admitted under a

18 different 65 ter number, P00347, through Mihaljo Galic on 27 April 2007.

19 JUDGE AGIUS: And, again, do you stand by that, Mr. Ostojic? I'm

20 asking Mr. Ostojic, it's because he was the one who objected. If anyone

21 else wishes to address the Chamber, please identify yourself.

22 Mr. Ostojic.

23 MR. OSTOJIC: Thank you, Mr. President. Yes, we do.

24 JUDGE AGIUS: Okay, thank you. So that 3935 we don't need to

25 discuss any further, because that document has already been admitted under

Page 21210

1 P347.

2 MR. THAYER: Mr. President, for the record, that was Witness 118.

3 JUDGE AGIUS: 118, okay, thank you.

4 And finally we come to P1936, which was used with Witness

5 Stanojevic, Dobrisav Stanojevic, and this a compilation of photographs and

6 identification of Bosnian Serbs.

7 MR. THAYER: Mr. President, during the course of the trial there

8 was various references made to this video stills book, which is P01936. We

9 showed various witnesses pages out of this book, sometimes referring to

10 the chapter or page number of this original version. What we subsequently

11 did was create an updated version, in some cases based on trial testimony,

12 in some cases based on other investigation that had been conducted, but it

13 has been updated. Copies of the updated book were distributed sometime, I

14 think, in November to our friends. As I understand it, there is no

15 objection to the new-and-improved version.

16 What we would ask is that we retain both copies in the system,

17 since on occasion there were references throughout the testimony to the

18 old version. So that the record remains intelligible, we'd ask that we

19 retain 1936 and give the new version the number P001937. And the new

20 version, I would respectfully request, be placed under seal, since some of

21 the trial witnesses who were referred to as making these identifications

22 were protected witnesses, and we've used their full names so the various

23 parties don't have to flip back to the witness list. They can just see

24 who it was.

25 JUDGE AGIUS: Their name appears on this new document?

Page 21211

1 MR. THAYER: Yes, Mr. President.

2 JUDGE AGIUS: All right.

3 Ms. Stewart, in particular, can you check for us that there isn't

4 already another document which bears the number 1937.

5 MR. THAYER: We actually -- we picked that up, Mr. President.

6 That -- that was just a doubling of the same exhibits. So what we're

7 doing is just giving this new document the same number that was there.

8 We'll just change the ERNs that are in the system in e-court.

9 What happened in e-court was for some reason the exhibit was

10 entered twice.

11 JUDGE AGIUS: Oh, I see.

12 MR. THAYER: So now we'll just remove the ERNs, and 1937 will be

13 the new version.

14 JUDGE AGIUS: Any objection? So no objection to P1936 and no

15 objection to P1937. Instead of one, we now have two, 1936 being the old

16 version, 1937 being the revised one, and P1937 will remain under seal.

17 Yes.

18 MR. THAYER: Mr. President, I have two other pieces of evidence to

19 discuss with the Chamber. One is what we have referred to as the Muslim

20 ID book. This is another collection of still photographs from various

21 videos of Bosnian Muslim men who subsequently disappeared, but who have

22 been identified. Copies of this -- and identified as missing and some

23 that haven't been ever identified or located, or some that survived.

24 Copies of this have been distributed, I think, pretty much at the same

25 time as the other video stills book that we just discussed. As I

Page 21212

1 understand it, there's no objection from my friends. This also eliminated

2 the necessity to have an investigator, Ms. Gallagher, testify as to the

3 creation of this document. And we would offer that as 1938. It's

4 uploaded in e-court already.

5 JUDGE AGIUS: Any remarks, objections, from any of the Defence

6 teams? We hear none, so 1938 is admitted.

7 More?

8 MR. THAYER: One last item that I'm aware of, and that is the --

9 what we have been referring to as the duty officer notebook, volumes 1 and

10 2; that is, 65 ter 377.

11 377, Mr. President, I believe is the first volume --

12 JUDGE AGIUS: One moment. I don't know why you are raising 377,

13 because that formed part of the Butler list yesterday. It was not one of

14 the documents that were objected to, and we have already admitted it.

15 MR. THAYER: Then I stand corrected, and nothing further to say.

16 JUDGE AGIUS: And the sequel to it is that there were bits and

17 pieces of that document, of 377, that became other documents that were

18 used with several other witnesses, and as a result of that, as a result of

19 377 being admitted yesterday, all the others have automatically been

20 admitted. I can give you the details of those, if you want, but --

21 MR. THAYER: I'll pass. Thank you, Mr. President.

22 And we do have a full translation of that document, as well as the

23 other volume, and I've notified Mr. Haynes, in particular, some time ago

24 about the completion of that project.

25 JUDGE AGIUS: Yes, Mr. Haynes.

Page 21213

1 MR. HAYNES: If the position is that the original P377, which is

2 not the whole of the first Zvornik Brigade duty operations officer's

3 notebook but merely a portion of it from, I think, about the 8th to the

4 20th of July - I might be wrong about those dates - has gone in as P377,

5 together with odd bits and bobs, then that, in my submission, is a wholly

6 unsatisfactory position, and what ought to be done is the translation of

7 the whole book should supplant it as P377, rather than have one portion of

8 the book and lots of little bits and bobs.

9 JUDGE AGIUS: If you are in agreement -- if Mr. Thayer is in

10 agreement to that, we can stop the discussion here and proceed

11 accordingly.

12 MR. HAYNES: Yes, and I thank Mr. Thayer for his tireless efforts

13 to get both of these volumes translated in what was a very short period of

14 time. It's a difficult book to translate because it's all in manuscript.

15 JUDGE AGIUS: Yes.

16 Yes, Mr. Thayer. Do you agree with Mr. Haynes' submission?

17 MR. THAYER: I do, Mr. President. We do have full translations of

18 both volumes.

19 JUDGE AGIUS: Okay. So what I propose to do is what we have

20 always done. We don't prefer substitution of one with another. We would

21 rather have what we have used so far, and we keep it 377, and the one

22 which would, for all intents and purposes, be considered the one that you

23 will be referring to as 377A or B or whatever number you find for it. The

24 reason for this is that as was hinted at earlier on, witnesses may have

25 already made reference to 377, particularly to particular pages, and so

Page 21214

1 for reference purposes we better keep it there. And then of course we

2 will use the entire one for the rest of the exercise, if that is agreeable

3 to all of you.

4 Okay. Mr. Haynes.

5 MR. HAYNES: Your Honour, yes.

6 JUDGE AGIUS: Okay. Mr. Thayer. Yes.

7 So you will follow this in due course and liaise with Mr. or Madam

8 Registrar, as the case may be.

9 MR. THAYER: We will, Mr. President, and we also have -- just back

10 to the video stills book, we have copies for the Chamber in production,

11 and we'll deliver those when they're ready.

12 JUDGE AGIUS: Okay.

13 [Trial Chamber confers]

14 JUDGE AGIUS: Mr. Josse, I'm addressing you not because I want to

15 single you out, but because you have spoken on the matter already, and

16 Mr. McCloskey. It's break time, but if you tell us that in relation to

17 the pending motion on the documents to be offered from the Bar table, that

18 there is an agreement that there will be no submissions today but that you

19 will take your time to -- then our proposal, our suggestion, was if the

20 rest of the staff agrees, that we proceed. I don't think we have got much

21 more on the agenda today, unless we are missing something that we don't

22 know, and finish.

23 MR. JOSSE: Well, I'm not sure I can speak on behalf of all my

24 learned friends who are defending.

25 Your Honour, the motion has now been filed --

Page 21215

1 JUDGE AGIUS: No, but we haven't seen it as yet.

2 MR. JOSSE: Nor have we, but I can see it has now been filed.

3 Realistically, we are not going to be in a position to address it today.

4 I am thinking out loud, let me emphasise whether the Chamber needs to give

5 some direction as to the respond, and in particular that -- well, they

6 presumably will have no bearing on the 98 bis ruling. The documents

7 aren't in evidence at the moment. The 98 bis is due to take place --

8 begin in a week's time, and I suspect most of us would want our 14 days to

9 respond.

10 I emphasise I'm thinking aloud. If any of my colleagues disagree,

11 then no doubt they'll say, but that's what I'd ask for, our full 14 days

12 to respond.

13 JUDGE AGIUS: Okay. Let's hear Mr. McCloskey.

14 MR. McCLOSKEY: Yes, Mr. President.

15 The Bar table motion has 46 documents total. Forty-four of those

16 documents were in our intercept support motion and had already been

17 determined by the Court to be relevant and probative on 11 January. So

18 this isn't a real big deal, and I -- once counsel's had a chance to see

19 the documents, they may or may not agree with me, but I don't think it's

20 something that we need to spend court time to argue over. I'm willing to

21 do it, of course, but that's -- it's not that big a deal.

22 MR. HAYNES: I'm going to answer the question that you put.

23 I'm not minded to make a submission about that motion today.

24 JUDGE AGIUS: I think you haven't even had time to put it in your

25 mouth, let alone digest it.

Page 21216

1 MR. HAYNES: We haven't even been able to find some of the

2 documents, as yet, but that may be our failing.

3 JUDGE AGIUS: Okay. Madame Fauveau.

4 MS. FAUVEAU: [Interpretation] I fully support my colleague

5 Mr. Haynes. I believe that this motion is being filed much too late and

6 does very much prejudice the Defence teams.

7 JUDGE AGIUS: Yes, Mr. Nikolic -- Ms. Nikolic, sorry.

8 MS. NIKOLIC: [Interpretation] Thank you, Your Honour.

9 I wholly endorse what my colleagues have submitted, not to repeat

10 what they said.

11 MR. MEEK: I join that motion.

12 JUDGE AGIUS: Thank you, Mr. Meek.

13 You didn't address the question as to whether you would be able to

14 live with the suggestion of Mr. Josse, that they will -- pending the

15 determination of -- pending the resolution of this issue, that they will

16 not form part of the documents to be taken into account for the purpose of

17 Rule 98 bis.

18 MR. McCLOSKEY: I have no problem with that. This doesn't need to

19 interfere with the 98 bis process.

20 JUDGE AGIUS: Exactly.

21 MR. McCLOSKEY: All these documents have 65 ter numbers. As I

22 say, I don't think it will amount -- this could be dealt with by paper, as

23 far as I'm concerned. And as I say, that these are documents everyone's

24 been on notice. We've litigated over all of them but two, so this isn't a

25 situation where prejudice is involved in any way, shape, or form.

Page 21217

1 [Trial Chamber confers]

2 JUDGE AGIUS: All right. That being said, do we have the go-ahead

3 to sit for another maybe five, ten minutes, unless you have other things

4 you would like to raise? We have got just two matters that we would like

5 to dispose of, and then we can adjourn.

6 MR. McCLOSKEY: I've got about a minute or a minute and a half,

7 but that's about it.

8 JUDGE AGIUS: A minute is not going to change anything.

9 Now ...

10 [Trial Chamber confers]

11 JUDGE AGIUS: So we have now been formally informed that there is

12 an urgent motion or a motion from -- not an urgent motion, a motion by the

13 Prosecution, from the Prosecution, to seek admission of a number of

14 documents from the Bar tables, as the saying goes. Our decision is that

15 we will give this motion the chance to take its normal course. You will

16 have the time limit set by the Rules to file your respective or joint

17 responses, a consequence being that for the purpose of Rule 98 bis, these

18 documents do not exist.

19 Okay, that's number 1.

20 Now, hope springs eternal, and yesterday -- also because we are

21 optimistic by nature, the four of us. We sincerely believed that we could

22 cut down -- shorten the time limit for Mr. McCloskey to respond to the

23 Butler motion, and we also gave an indication that today we'd make an

24 announcement on the Rupert Smith matter. It turned out to be somewhat

25 more laborious and more complicated than we first thought.

Page 21218

1 We have been actively discussing and discussing. I think we would

2 be misleading you if we kept our promise and make you hope for a decision

3 before you start with the Rule 98 bis submissions. We are sorry, but, I

4 mean, we had expected the sittings to finish last week. We got one thing

5 over the other, more witnesses, more sittings and more motions, and we

6 found ourselves in a position today we realise we will not be able to make

7 it. So bottom line is that for the purpose of Rule 98 bis, you would have

8 to live with the consequence of our decision not to decide these two

9 motions in time before the 14th of this month, and therefore, for all

10 intents and purposes, you need to take into account, for the purposes of

11 your submissions, the entirety of the testimony and reports of both

12 Mr. Smith and Mr. -- General Smith and Mr. Butler. So that is the

13 position.

14 We have tried, but there are limits.

15 One moment. I need to discuss something else.

16 [Trial Chamber confers]

17 JUDGE AGIUS: We do not have any further matters to raise. If you

18 have, please, let's do that as shortly as possible.

19 Mr. McCloskey.

20 MR. McCLOSKEY: Yes, Mr. President.

21 Just a couple of things.

22 You have accepted Mr. Butler's command reports into evidence. I

23 think I mentioned, we do have CDs of those command reports where you can,

24 when reading them, click on the cite and the document supporting comes up.

25 That can't be done in e-court. We have those CDs, if the Court's

Page 21219

1 interested. They also include the narratives, which are not in evidence

2 yet, but of course you can ignore those.

3 I also, I think as I mentioned, I have large copies of those

4 smaller maps, if anyone wants them.

5 I also -- there are two exhibits, two aerial images, 3009, which

6 is an aerial image of the Branjevo Farm, which I briefly mentioned

7 yesterday; and 1801, which is the Branjevo Farm on 27 September 1995, both

8 of which have been the subject of some discussion in this case. I have

9 what are hard copies of those photographs which are clearer than the

10 electronic versions that are in e-court. I would like to provide those

11 hard copies to the Court so that you have them to review, should you wish

12 to.

13 JUDGE AGIUS: Have you provided them to the Defence teams?

14 MR. McCLOSKEY: Yes, for many months now.

15 JUDGE AGIUS: All right.

16 Yes, Mr. Haynes.

17 MR. HAYNES: The first time I saw these aerial images was during

18 my cross-examination of Dean Manning just before Christmas, so if

19 that's "many months," then so be it. They're very significant.

20 You might remember my cross-examination of Dean Manning about what

21 the aerial images of Branjevo Farm apparently showed. I asked him to look

22 at them and see whether he could compare certain things on photographs

23 taken apparently on the 17th, the 21st and, I think, the 27th of July of

24 1995. During a break, a photograph was retrieved from the offices of the

25 Office of the Prosecutor and was shown to me, and it seemed to me to be a

Page 21220

1 very significant photograph indeed for one purpose for the Prosecution,

2 but actually for a very good purpose for the Defence. It seemed to me to

3 advance a point that Mr. Ostojic has been making forcefully throughout

4 this trial about how certain things written in white boxes appeared on

5 these photographs, because it compared directly to one that was then in

6 evidence, but it had rather less writing on it. And when I pointed this

7 out to Mr. McCloskey, the Prosecution took the tactical decision with

8 Dean Manning, in re-examination, not to use this aerial image, doubtless

9 aware of the fact that I might have applied for leave to re-cross-examine

10 him to highlight the point that Mr. Ostojic has been trying to make for

11 all these months.

12 It seems to me it would be completely wrong, the Prosecution

13 having decided not to put this photograph in through a witness several

14 months ago, to borrow their phrase, to produce it from the Bar table now,

15 so I do object. If there is a sensible course to this, it would be that

16 they add a supplement to their current motion, and I will put these points

17 in writing.

18 When I asked Mr. McCloskey about this today, his explanation for

19 not producing it through Dean Manning was that it was too late in the day.

20 Well, today is even later.

21 JUDGE AGIUS: Yes, thank you.

22 Do you wish to comment, Mr. McCloskey?

23 MR. McCLOSKEY: Yes, Mr. President.

24 Had I offered to put that document in, having given them one

25 hour's notice, the cry would have been heard around the world of

Page 21221

1 prejudice, and that is why I didn't --

2 MR. HAYNES: No, it wouldn't. I was ready.

3 MR. McCLOSKEY: They're tougher in England, but there would have

4 been other objections, and that's why I gave them plenty of time to digest

5 it. This issue has been churned and churned by Mr. Ostojic. So these

6 documents are fundamentally already in evidence. The versions of these

7 things, the electronic version that they've had for a while, is very

8 similar to the hard-copy versions. These hard-copy versions are a little

9 clearer. In my view, you can clearly see the back-loader -- the backhoe

10 and loader in them, and I think you'll agree with me.

11 JUDGE AGIUS: Let's not go into the details. Leave it as a

12 procedural matter.

13 I think if you give me a moment to consult with my colleagues ...

14 [Trial Chamber confers]

15 JUDGE AGIUS: Mr. McCloskey, sorry to cut you short and in an

16 abrupt manner, but it will also dispose of the matter.

17 We have discussed it. We're on the same wavelength while you were

18 both contributing to the discussion, to the debate. The situation being

19 what it is, in other words, the diametrically-opposed positions that you

20 have taken, for the moment we don't need these documents, we don't want

21 them. If they are made use of later on in the day during this trial, we

22 may reconsider our position.

23 MR. McCLOSKEY: Thank you, Mr. President.

24 JUDGE AGIUS: Thank you.

25 Anything else?

Page 21222

1 MR. McCLOSKEY: One other request. I think I may have made this

2 before, but as we are approaching the 98 bis stage, any particular areas

3 that you would like us to focus on would, of course, be appreciated. Of

4 course, we also appreciate being left in the dark, and that's not a

5 problem. But if there are any particular areas, we will be ready to

6 respond to those.

7 And I would also ask my colleagues, as I'm sure none of them will,

8 but anyone that is planning waiving 98 bis, the sooner we know that, that

9 would also be helpful.

10 JUDGE AGIUS: Yes, don't rush.

11 I don't think we have anything to tell you. You are all aware of

12 what Rule 98 bis is all about. It's a motion to acquit. Admittedly, it

13 could also be triggered ex officio, but it is basically a motion to

14 acquit. The standards have been set by our case law, and I don't think we

15 need to elaborate on that. You need to stick to what is required by the

16 Rule and by the jurisprudence, and not treat the procedure as if we have

17 come to the end of the case and discuss the merits and ultimate acquittal.

18 So I think it's clear enough, and we are confident that you understand

19 exactly what the whole procedure is all about, while it's still there in

20 our Rules.

21 All right. And, of course, Defence go first.

22 MR. McCLOSKEY: In that event, Mr. President, I think the

23 Prosecution can rest.

24 JUDGE AGIUS: Thank you.

25 So we've come to the end of the first leg of a long journey.

Page 21223

1 Before we adjourn until Thursday of next week for the first submissions,

2 Rule 98 bis submissions, I wish to thank you for all the work that you

3 have put during the past months in the case, in the interests of your

4 respective case, in the case of the Prosecution, and in your case in the

5 interest of your clients; but also in the interests of justice. So the

6 first hurdle is over, we now need to overcome the second one, the Rule 98

7 bis decision; and then we embark on the next leg, which will also be a

8 long one and as complicated as the one we have just finished.

9 So I wish you all a nice evening and a nice weekend, and I'm sure

10 you are not going to enjoy yourself this weekend and that you will be

11 engaged in preparing for your contributions next week. Thank you.

12 And one moment. I also wish to thank, as usual, the staff. You're

13 always so prepared and so forthcoming to help the Tribunal in trying to

14 economize on time. I don't know how to show my appreciation, except to

15 communicate it formally to the Registrar and to your immediate superiors.

16 Infallibly during these months, you've been extremely, extremely

17 cooperative. Thank you.

18 --- Whereupon the hearing adjourned at 4.08 p.m.,

19 to be reconvened on Thursday, the 14th day of

20 February, 2008, at 9.00 a.m.