1 Thursday, 29 April 2004

2 [Open session]

3 --- Upon commencing at 9.08 a.m.

4 [The accused entered court]

5 JUDGE ANTONETTI: [Interpretation] Madam Registrar, could you call

6 the case, please.

7 THE REGISTRAR: Case number IT-01-47-T, the Prosecutor versus

8 Enver Hadzihasanovic and Amir Kubura.

9 JUDGE ANTONETTI: [Interpretation] Thank you, Madam Registrar.

10 Could we have the appearances for the Prosecution.

11 MR. WITHOPF: Good morning, Mr. President. Good morning, Your

12 Honours. Good morning, Counsel. For the Prosecution, Daryl Mundis,

13 Ekkehard Withopf, and the case manager, Ruth Karper.

14 JUDGE ANTONETTI: [Interpretation] Thank you, Mr. Withopf.

15 And could we have the appearances for the Defence.

16 MS. RESIDOVIC: [Interpretation] Good morning, Mr. President.

17 Good morning, Your Honours. On behalf of General Hadzihasanovic, Edina

18 Residovic, counsel; Stephane Bourgon, co-counsel; and Mirna Milanovic, our

19 legal assistant. Thank you.

20 JUDGE ANTONETTI: [Interpretation] Thank you.

21 Mr. Ibrisimovic.

22 MR. IBRISIMOVIC: [Interpretation] Good morning, Your Honours. On

23 behalf of Mr. Kubura, Rodney Dixon, Fahrudin Ibrisimovic, and Nermin

24 Mulalic, our legal assistant.

25 JUDGE ANTONETTI: [Interpretation] Thank you. The Trial Chamber

1

2 would like to greet everyone present in the courtroom, members of the

3 Prosecution, of the Defence, and all those who are in the courtroom and

4 outside.

5 This will be our last working day this week, since it's a holiday

6 tomorrow, and we will continue to examine the documents we started to deal

7 with at the beginning of the week. This hearing will deal with the

8 examination of about 50 documents, as suggested by the Defence. And as

9 the Defence has put it, these documents will illustrate the problems

10 encountered and it should show why the documents shouldn't be admitted.

11 So as not to waste any time, we will follow the following

12 procedure: The Defence will present its arguments on the basis of the

13 list it has compiled. We will start with the first document. The first

14 document having been dealt with, the Prosecution will comment on the

15 Defence's position.

16 There are about 50 documents. We have about four hours, if we

17 deduct the pauses. So if we have 50 documents, we've got about five

18 minutes per document. That's not much. Which means that both parties

19 will have to be as concise as possible. Otherwise, we will not be able to

20 move forward, and we won't be able to deal with the 50 documents. It

21 would be best to conclude this matter because next week we're starting

22 with an expert witness, and it's not really necessary to have a decision

23 to deal with the documents, but we need to know what the final positions

24 of both parties are with regard to the documents.

25 Could the Defence start with the first document on the list now.

1 Mr. Withopf, I am listening to you.

2

3 MR. WITHOPF: Mr. President, Your Honours, if you please allow me

4 to make a few remarks and to address four distinct issues. Three out of

5 them are linked to the discussion of the documents.

6 But first we wish to hand over the proper, legible copies of the

7 materials we handed over on Tuesday. And again, my apologies for that.

8 JUDGE ANTONETTI: [Interpretation] Very well. And the second

9 point?

10 MR. WITHOPF: My learned friend from the Kubura Defence,

11 Mr. Dixon, quite correctly yesterday drew the attention of the Trial

12 Chamber to Prosecution's Exhibit Number 125 on the further detailed

13 consolidated exhibit list. This is the prior testimony of Mr. Robert

14 Stewart in the Kordic case. For the record, the Prosecution removes this

15 document from its exhibit list. It was an oversight on my part.

16 JUDGE ANTONETTI: [Interpretation] Do continue.

17 MR. WITHOPF: The next issue, Mr. President, Your Honours, has to

18 do with the list of the Defence for the accused Hadzihasanovic which

19 details 36 documents to be discussed today. There are two distinct issues

20 I wish to raise: Number one, on this list under numbers 193 and 198

21 appear two documents which were not contested by the Defence. These two

22 documents are already in evidence. They were tendered by the decision of

23 the Trial Chamber and they were assigned the Prosecution exhibit numbers

24 P210 and P215. Accordingly, the Prosecution is of the view that we don't

25 need to discuss them, including for legal reasons, not by way of example,

1 since it would be a discussion of evidence, and this is not the right

2 point in time to discuss the evidence.

3

4 There is -- there are two additional or two further documents on

5 the list for the Hadzihasanovic Defence. On the list appear the documents

6 numbered 360 and 411. If one has a look at the Prosecution's further

7 detailed consolidated exhibit list filed on the 19th of April this year,

8 one sees immediately that these two documents have been removed. This

9 implies, Mr. President, Your Honours, that they are not on the court

10 records any more and therefore can't be discussed legally; they are not

11 existent to these proceedings.

12 There are two further issues I wish to address: There's one

13 document due to an oversight is not -- or are not yet available in its

14 original. It's number 59 on the contested exhibit list. We are making

15 efforts to get this document or the original of the document in the course

16 of the today's proceedings.

17 And there's one last issue I wish to briefly raise in order to

18 safeguard a smooth running of the today's proceedings, taking into account

19 that we have to deal with the originals of the documents. Most of the

20 documents to be discussed today, Mr. President, Your Honours, stem from

21 the Sarajevo collection and therefore are the originals. They are

22 currently signed out from the Evidence Unit under my name. I'm legally

23 the custodian of these documents. They are accompanied by the ERF, what's

24 the evidence register form. I suggest to keep the ERF together with the

25 document to ensure that the document themselves and the ERFs don't get

1 messed up. For the same reason, I have attached to each of the documents

2 a little yellow marker. For the very same reason, I suggest that I hand

3 over each original of the documents separately. They have to be shown to

4

5 the Defence and the accused anyway, and in respect to some of the

6 documents I wish to make comments obviously prior to hand them over.

7 And a very last issue in this context - and this concludes my

8 preliminary remarks - if the Trial Chamber would be inclined or would

9 decide that they want to keep the originals of the documents, if they

10 leave the court today - for example, for deliberations on the documents -

11 one of the Judges has to sign the ERF to safeguard the chain of custody.

12 Thank you very much, Mr. President, Your Honours.

13 JUDGE ANTONETTI: [Interpretation] Thank you. We've listened

14 carefully to what you have said. Apparently on the list of documents

15 produced by Mr. Bourgon there are four that don't need to be referred to,

16 so since there are two documents that have been admitted and haven't been

17 contested - it's 193 and 198, those are the reference, and there are two

18 others that were mentioned - and they're not necessary because the

19 Prosecution has withdrawn them. So we have 32 documents remaining.

20 In order to ensure that we deal with this as best as possible, I

21 think the usher should take the original, give it to the Defence, show it

22 to the Defence, the document will then be given to the Chamber before the

23 Prosecution responds. The usher will then be given the original by

24 Mr. Withopf. She will give the original to the Defence and to the accused

25 and we will be given the document, which we will return to Mr. Withopf.

1 If we need any originals, we'll deal with that later.

2 Madam Usher, could you take the first document. It's number 8.

3 Show it to the Defence, to the accused, and then show it to the Chamber.

4 And during that time Mr. Bourgon will take the floor.

5

6 MR. BOURGON: [Interpretation] Good day, Mr. President. Good day,

7 Your Honours. The Defence can confirm what the Prosecution has just said;

8 that is to say, there are four documents with erroneous numbers. We had

9 some difficulties when trying to establish a link between the

10 Prosecution's numbers for the contested documents and the -- the

11 Prosecutor's PT numbers and the old Prosecution numbers, the internal

12 numbers. So for these reasons the four documents in question are not the

13 right ones. Nevertheless, I have the right numbers for these documents.

14 It was a printing error. The right numbers are as follows: If we use the

15 Prosecutor's internal list, the first number is 88, the PT number is 91;

16 the second document is 92, the internal number is PT1465 -- 1465; the

17 third document has the Prosecutor's internal number 257, and the PT number

18 is 483; the fourth document, Mr. President, on the internal list is 826,

19 and the PT number, 1451. When I deal with these documents, we will also

20 have the numbers that are contested documents on the list of contested

21 documents.

22 Without further delay, Mr. President, I will now turn to the

23 first document. The first document is number 2 on the list of contested

24 documents; the Prosecution's list, the internal number, is 8 and the PT

25 number is 8. With regard to this document, Mr. President, the first thing

1 that we had a look at in the case of each document was the signature. If

2 you have a look at this document, Mr. President, there is no signature.

3 It has not been signed. Then if we want to see whether the document was

4 received by anyone, we are not in a position to establish this. We don't

5 know whether it was received by anyone.

6

7 There is a stamp, which is at the top of the document. On the

8 first page of the original document, we have a stamp which gives us a

9 date. The 11th of December, 1992 is the date. And there is also a

10 reference. There is a code number. But we do not know whether this

11 document was received or sent. But in the translation of the document, on

12 the first page of the English translation it says: "Received on the 11th

13 of December, 1992."

14 When we have a look -- when we try to see who the document was

15 sent to, the translation says that the document was apparently sent to

16 Vitez OBSO. We don't know what that is. And also to the 325th Mountain

17 Brigade. And it is not clear when looking at this document -- we don't

18 know what happened with the document. As I said at the beginning, the

19 document hasn't been signed, and there is the printed name of the accused,

20 the commander, General Hadzihasanovic. On the basis of the original that

21 I've been provided with - it's the first time I see it - this is probably

22 a document that was sent in electronic form. So as has already been

23 explained by the Chamber, sometimes colours can help us.

24 When I have a look at the original, I can see that there is no

25 original stamp, or perhaps there is a stamp on the back. It's difficult

1 to see. But it concerns the accused directly. When we have a look at the

2 contents of the documents, this is a document addressed to all units and

3 it tells the units in some sense these are the tasks that you have to

4 carry out on the basis of the situation on the 10th of December, 1992. We

5 don't know whether the units received this document. All we know is

6 that there is a stamp. And even if we accept that this stamp shows that

7

8 it was received - because the colour is different - we don't know who this

9 document was received by.

10 On the document itself, it says something in handwriting. It

11 says "OPSO Vitez" and the "325th." Does this correspond to the document

12 sent or received? We don't know.

13 A little further down you can see the letter "K" on the second

14 page of the original. It says "325," which must refer to the 325th

15 Brigade. And that number has been circled. Was it circled when the

16 document was sent or when the document was received? These are things we

17 do not know. So this is one of the categories of documents,

18 Mr. President, which in our opinion render the Trial Chamber's task too

19 difficult.

20 So without additional support, it would be too difficult for the

21 Chamber to admit this document into evidence. There are too many

22 difficulties that would -- for the Trial Chamber to be able to use this

23 document and consider it to be reliable. We know that the document exists

24 on the basis of the proof we received yesterday. We know that the

25 document arrived in the archives. But we do not know whether the document

1 remained in the 3rd Corps or whether it went anywhere else or whether

2 anyone received this information.

3 That concerns the first document.

4 JUDGE ANTONETTI: [Interpretation] Madam Usher, could you show the

5 document to the two accused so that they can examine it.

6 MR. BOURGON: [Interpretation] With your permission,

7 Mr. President, I should like to make an additional remark regarding this

8

9 document, and this is a detail that applies to almost all the documents

10 that we will see this morning.

11 If we look at the document, Mr. President, the translation - I

12 refer to paragraph 2 and subparagraph (a) - there's mention of the 318th

13 BBR, so it's probably a brigade from Zavidovici. Then we see the

14 letters O-P-S-O, OPSO, and in brackets "without the 1st PDO". What I

15 wanted to underline is that you have a brackets and an interpretation by

16 someone - I don't know if it's someone in the translation service of the

17 Prosecution or some other person - an interpretation of the PDO letters

18 as "anti-sabotage detachment."

19 In several places within this document, Mr. President, you have

20 references within brackets, and these are interpretations or details that

21 have been added. Perhaps my learned friend could explain whether the

22 information within the brackets was provided by the translation service or

23 by the Prosecution, because this is an addition to the document and it

24 actually specifies what is in the document or which may not be included.

25 JUDGE ANTONETTI: [Interpretation] Very well. I'll give the floor

1 to the Prosecution. The Chamber has the document in its possession.

2 There was another remark that you could have made that you

3 didn't, and that is that this document consists of several pages, and one

4 can see that one can cut the pages, and this is obviously a document

5 coming from a fax on a rolling -- on a roll of paper, and that this

6 document probably followed a series of documents that were transmitted at

7 a given point in time, because one can see clearly that it was cut at the

8 bottom and also at the top, so it must have been part of a roll of

9

10 documents that was being faxed. And Mr. Bourgon, who was a military man,

11 could have told us that.

12 Mr. Withopf.

13 MR. WITHOPF: Mr. President, Your Honours, I note that my learned

14 friend from the Defence talked about six and a half minutes of this

15 document, more than the time that was allocated for both parties.

16 If I may please address a few of the issues. First of all, in

17 respect to the authenticity of this document, this is an official document

18 of the ABiH, as one can see from the original, and it stems from the

19 Sarajevo collection 1.

20 The relevance as outlined in the pre-trial brief, deployment of

21 troops in respect to the crime base in Dusina.

22 Rule 89(D), it's from the Sarajevo 1 collection, there are no

23 irregularities in obtaining this document, and it has been disclosed in

24 time.

25 There are a number of technical issues my learned friend from the

1 Hadzihasanovic Defence has addressed and factually they are correct.

2 There's no doubt about this. The fact that this document doesn't bear a

3 signature can easily be explained because, as Your Honour the Presiding

4 Judge already mentioned, this is a document which was sent. And as it is

5 obvious from the document, it was sent electronically, and therefore the

6 document doesn't have a signature. Pretty straightforward explanation,

7 and it's correct; there are other such documents as well.

8 The second issue which my learned friend from the Hadzihasanovic

9 Defence has addressed: There are -- and that's correct. There are in

10

11 brackets explanations. These explanations - and the one which has been

12 addressed by my learned friend from the Hadzihasanovic Defence,

13 under 2(a) - there is after the word "PDO", or after the

14 abbreviation "PDO" there is a question mark and then there

15 is "anti-sabotage detachment." Such explanations are made by CLSS. They

16 are by no way made by the Prosecution. CLSS -- and CLSS is not part of

17 the Prosecution. I wish to mention this. CLSS has people who are very

18 qualified and they are in a position to explain what certain abbreviations

19 do mean. They, however, identify if they are not sure such portions with

20 a question mark. This only serves for the purpose to have the best

21 knowledge of the document possible, and it's very common. This is the

22 very same issue in all proceedings before Trial Chambers of the

23 International Criminal Tribunal. All such documents -- or quite a number

24 of such documents have such additional explanations. It's obviously

25 common.

1 This document, Mr. President, Your Honours, as many other

2 documents to follow, illustrate that this is not an issue about

3 admissibility. For the reasons my learned friend has mentioned, one may

4 or may not be inclined to attach less probative value to the document, but

5 it's not - and I wish to emphasise this - it's not an issue of not

6 admitting this document.

7 Thank you very much, Mr. President, Your Honours.

8 JUDGE ANTONETTI: [Interpretation] Thank you. The Chamber has

9 listened carefully to what you told us. As far as I'm concerned, I should

10 like to indicate that the remarks of the Defence were relevant regarding

11

12 the reference to the addition of anti-sabotage unit. You explained that

13 it is the translators who do that. In theory, in countries of continental

14 law, when there's a translation, the translation has to be faithful, and

15 it may be accompanied with another document coming from the translator, a

16 kind of dictionary, with the translator saying that the abbreviation "PDO"

17 is the equivalent of an anti-sabotage unit. But that's another document.

18 The judicial translation of a document should not contain any personal

19 judgement on the part of the translator. This is a technical matter that

20 is very well known. I assume the same applies to Canada and the United

21 States. You will tell me that that is the established practice. It is

22 true that the Rules of Procedure make no mention of that. But if we wish

23 to have judicial security, it would be better for the document to be

24 translated in its integrity without any commentary by the translator, and

25 then on an attachment the translator could explain that the abbreviations

1 stand for such-and-such a thing.

2 Let us move on to the next document, please.

3 Madam Usher, we can give the first document back and we will see

4 later whether we need it.

5 Mr. Bourgon, you exceeded by 1 minute 30 seconds the time

6 planned. If we had a sand clock, I would have to turn it around by now.

7 But anyway, we will trust you that you will do your best.

8 MR. BOURGON: [Interpretation] Without further delay, let me go on

9 to the next document. It is number 10 on the list of contested documents,

10 35 on the internal list, and 35 on the PT list.

11 The document in question - I don't have the right document with

12

13 me. This is not the proper original, Mr. President. It is document

14 number 10 on the list of contested documents of the Prosecutor, 35 on the

15 internal list, and 35 as the PT number. I don't know whether the Chamber

16 has this document in its possession. It has the number "PT35" on it.

17 MR. WITHOPF: Yes, Mr. President, this is correct. It's my

18 fault. This is actually a war diary, and I'll hand it over now.

19 MR. BOURGON: [Interpretation] Mr. President, the question here

20 with respect to this document is as follows: First of all, this is a

21 handwritten document. The author is known -- is not known; the purpose is

22 not known. The instructions given to him are not known, and also the date

23 of the drafting of the document is not known. We don't know how and why

24 this document was drafted. To be even more specific, Mr. President, my

25 learned friend is giving me now the diary itself of the 3rd Corps in its

1 entirety. It was one of our -- one of our main points with regard to this

2 diary is the Prosecutor did have the whole diary. But the question is

3 what the Chamber will have when it deliberates. The Chamber will have the

4 whole diary or will the Chamber have only this document? It is a document

5 drafted in hand without signature, without date, without any other

6 indication. The only reference is "OG Bosna." And also, different

7 handwritings are used on this same document.

8 Therefore, if the Chamber were to use this document, it does not

9 meet the criteria of reliability which would allow the Chamber to make any

10 conclusions without saying to themselves, "Yes, but." And that's our

11 whole point. Without any additional testimony, the document must at least

12 speak for itself and tell the Chamber what it is.

13

14 JUDGE ANTONETTI: [Interpretation] The war diary that you have in

15 front of you, have you had a copy of the whole war diary? Has it been

16 disclosed to you?

17 MR. BOURGON: [Interpretation] Mr. President, I don't know. We

18 received this document, and we prepared ourselves on the basis of this

19 document.

20 JUDGE ANTONETTI: [Interpretation] So you don't know whether you

21 had a copy.

22 My second question: In the pre-trial phase and during the trial

23 itself, you always could have gone and seen the originals as a Defence

24 counsel.

25 MR. BOURGON: [Interpretation] Yes. Yes. But in view of the fact

1 that there are more than 100.000 pages --

2 JUDGE ANTONETTI: [Interpretation] So it's difficult, but your

3 observation is quite correct.

4 Madam Usher, please give the war diary to the accused to look at

5 first, and then we can -- give it to us.

6 Madam Usher, will you show the diary to Mr. Dixon, please.

7 Mr. Withopf, while you are speaking, we can have a look at the

8 war diary, so please begin. You have the floor.

9 MR. WITHOPF: Thank you very much, Mr. President.

10 Very briefly, in respect to the authenticity. This is an

11 official document of the ABiH. It's a war diary of the 3rd Corps in

12 Zenica, as the first page in this diary will show, and it stems from the

13 Sarajevo collection 1.

14

15 It's relevant. It's a 3rd Corps war diary covering portions of

16 the indictment period. The entries from the 14th of March, 1993 [sic].

17 It's referenced to in the pre-trial brief, and it concerns the kidnapping

18 of the witness Totic, and it will provide notice in respect to the accused

19 Hadzihasanovic.

20 In respect to Rule 89(D), in order to not waste time, I make

21 reference to what I said to the first document.

22 Technical issues. This is a war diary, and my learned friend has

23 quite correctly mentioned that there are different handwritings in it.

24 Each army has such war diaries and they are in handwriting, and they are

25 in handwriting because the person who writes or makes entries into such a

1 war diary is the duty officer or the duty soldier who receives information

2 from external sources and writes it down in the diary. That's the whole

3 purpose of such a diary. That can easy -- easily be explained.

4 To my knowledge - however, I would have to confirm this - it's

5 the understanding that the full war diary was disclosed -- or a copy of

6 the full war diary was disclosed to Defence certainly in time. The date

7 can be seen from the original of the war diary. The Prosecution is very

8 well prepared if the Chamber deems it appropriate to tender a full copy of

9 the full war diary.

10 Mr. President, Your Honours, as Your Honour Mr. Presiding Judge

11 already mentioned, Defence could have had a chance to have a look at the

12 original of the war diary. For the information of the Trial Chamber, I

13 wish to mention that at the early stages of the proceedings Defence

14 requested to see the original maps. Defence obviously within a short time

15

16 frame was given the opportunity to see the original maps. If they would

17 have done so in respect to the war diary or any other originals, the

18 Prosecution would have been in a position and would have been prepared to

19 provide them access.

20 [Prosecution counsel confer]

21 MR. WITHOPF: My colleague Mr. Mundis is taking my -- is drawing

22 my attention to the fact that in the transcript it's written "14th of

23 March, 1993." I think that's actually the right -- the right date.

24 JUDGE ANTONETTI: [Interpretation] The 14th of May?

25 MR. WITHOPF: No, I think it's the 14th of March, 1993. It

1 appears to be correct.

2 JUDGE ANTONETTI: [Interpretation] On the document, it says the

3 14th of May. I wanted to say that the war diary we have in our hands, the

4 green colour, there's a big number and it says in B/C/S "Ratni Dnevnik"

5 and I believe the translation is "war diary."

6 Then there's a number 2. There must be a number 1 which we don't

7 have. And also, it says the 13th of March, 1993 to the 14th of May, 1993.

8 So the first handwritten entry begins the 11th of March, 1993,

9 and the last -- the last document on the last page does not appear to have

10 a date, but on the bottom it says the 14th of May, 1993 in black marker.

11 This may be the archivist who made this note, because it says, "Listova

12 1997." And this may have been written by the archivist. So we don't know

13 exactly.

14 Do you have anything to add, Mr. Withopf?

15 In any event, we see the stamp of the 3rd Corps on this document

16

17 on the one-but-last page. I wish to show it to Mr. Bourgon.

18 You see the stamp, Mr. Bourgon.

19 MR. WITHOPF: Mr. President, at this junction, I have nothing to

20 add. There will be a second war diary shown today. It will be of a very

21 similar nature.

22 JUDGE ANTONETTI: [Interpretation] Very well. I wish to give you

23 this document back.

24 Mr. Bourgon, please continue.

25 MR. BOURGON: [Microphone not activated]

1 THE INTERPRETER: Microphone, Mr. Bourgon. Microphone, please.

2 MR. BOURGON: [Interpretation] [Previous translation continues]...

3 Number 12 on the internal list of the Prosecution, number 38 and PT

4 number 38 as well. This document comes under the same category. So I

5 will address myself to both documents.

6 The position of the Defence has nothing to do with time. We

7 didn't say that we didn't have enough time to prepare ourselves. The

8 relevance is not in question either, Mr. President. The only thing that

9 is in question is that we are of the opinion that the Chamber cannot use

10 this document only without having the original document in its entirety.

11 That is why we would like, Mr. President, that the Prosecution be asked to

12 provide the war diary in its totality with the translation so that it is

13 possible for the Chamber to read the whole document.

14 JUDGE ANTONETTI: [Interpretation] It appears that the accused are

15 not hearing the interpretation. It may be a technical problem.

16 [Trial Chamber and registrar confer]

17

18 JUDGE ANTONETTI: [Interpretation] This document number 38,

19 document 12, where is the original?

20 MR. WITHOPF: Mr. President, this is part of the very same war

21 diary you had in your hands a few seconds ago, and it can be provided

22 again.

23 JUDGE ANTONETTI: [Interpretation] Very well. In that case, the

24 diary should be given again for Defence counsel to check page 46.

25 MS. RESIDOVIC: [Interpretation] The technical problem seems to

1 apply to us as well. We are not getting the interpretation into the

2 Bosnian language.

3 JUDGE ANTONETTI: [Interpretation] Madam Registrar is telling us

4 that someone is going to come in a minute to deal with it. But in order

5 not to waste time, if Madam Usher can hear me, can she get the diary to

6 give it to the Defence counsel so they can check page 46 in the original.

7 [In English] It's okay?

8 [Interpretation] Can everyone hear now?

9 Mr. Withopf, you have the floor.

10 MR. WITHOPF: Mr. President, Your Honours. In order to not waste

11 time, there's not much to add, the Prosecution has offered to provide the

12 Trial Chamber and to tender a full copy of the war diary if the Chamber

13 feels it appropriate to do so.

14 The date of this entry is obviously, as can be seen from the

15 original, the 16th of April, 1993. It's relevant. It's referenced to in

16 the pre-trial brief, and it shows the subordination and deployment of

17 military troops of the 3rd Corps eight days prior to the killings in

18

19 Miletici.

20 Thank you very much.

21 If I may add since this is obviously a very official document

22 with the necessary stamps on it, it again shows that we are talking about

23 the probative value only; we are not talking about the admissibility. And

24 this applies to most, if not all, of the documents Defence wishes to

25 discuss today.

1 JUDGE ANTONETTI: [Interpretation] Regarding the date, the Chamber

2 notes that after this document, there's another document marked the 17th

3 of April, 1993 in a different handwriting, and that in this document,

4 which is on page 46, there's a page 45, and on page 45 the date is the

5 16th of April, 1993. So the conclusion one could make quite easily is

6 that this document was drafted on the 16th of April.

7 So I am returning the document. Let us move on to the next

8 document.

9 MR. BOURGON: [Interpretation] Thank you, Mr. President. I should

10 simply like to add one comment regarding the last document.

11 First of all, the way in which the document was given to the

12 Defence. When we look at the numbers, the ERN numbers, we see that these

13 documents were photocopied page by page and given to the Defence page by

14 page. So it's quite possible that the document in its entirety was given

15 to the Defence. But the whole Sarajevo collection was given to us on a

16 CD-ROM, so the only way we had to look at the documents was to print

17 55.000 pages one by one or to search through them. And we didn't come

18 across the diary as a whole. But during our search, we received pages

19

20 like this.

21 So the principal point of the Defence is always the same, and

22 that is: Will the Chamber only have this document before itself -- before

23 it to use or the whole document?

24 JUDGE ANTONETTI: [Interpretation] The suggestion is that the

25 totality of the war diary be tendered.

1 Mr. Withopf, please, preserving your legendary calm, what is it

2 that you wish to tell us?

3 MR. WITHOPF: As my learned friend mentioned, the full diary has

4 been disclosed and it has been disclosed on a searchable CD. If my

5 learned friends from the Defence are not in a position to do searches, the

6 Prosecution is certainly very well prepared to provide training in doing

7 such searches. It's a matter of ten minutes to find out which pages are

8 related to which war diary.

9 JUDGE ANTONETTI: [Interpretation] Mr. Bourgon, we need to deal

10 with the next document.

11 MR. BOURGON: [Interpretation] We will do so, Mr. President, but

12 the Defence believes that the Defence should tell the Trial Chamber that

13 we do not appreciate the Prosecution's comments.

14 JUDGE ANTONETTI: [Interpretation] Mr. Bourgon, I was also going

15 to say that you should carry on and remain calm, as usual. We understand

16 the technical difficulties you have encountered. You have explained them

17 to us. Going through 5.000 [as interpreted] pages is an immense task, and

18 we do understand the difficulties that you are confronted with. So be

19 aware that the Trial Chamber is aware of these difficulties.

20

21 MR. BOURGON: [Interpretation] Thank you, Mr. President.

22 The following document has the number on the Prosecution's list

23 16, the internal number is 51, and the PT number is 53.

24 JUDGE ANTONETTI: [Interpretation] Madam Usher, could you fetch

25 the original.

1 MR. BOURGON: [Interpretation] Mr. President, this document, as

2 you can see, needs to be consulted by looking at the last page. It's a

3 handwritten page, a note which has been handwritten and signed in a

4 language that is not one of the Tribunal's official languages. There is a

5 date --

6 JUDGE ANTONETTI: [Interpretation] The document we have, under

7 number 16 isn't a handwritten document; it's a typewritten document.

8 MR. BOURGON: [Interpretation] Mr. President, the document

9 consists of three pages. First of all, we have a handwritten page, and

10 then there is a typewritten page, and then we have a translation.

11 JUDGE ANTONETTI: [Interpretation] We do not have the handwritten

12 document.

13 MR. BOURGON: [Interpretation] Mr. President, I'll give you the

14 original, which we obtained from the Prosecution.

15 JUDGE ANTONETTI: [Interpretation] The handwritten document wasn't

16 admitted, no request made, because we don't have it.

17 MR. BOURGON: [Interpretation] If we don't have the handwritten

18 document --

19 JUDGE ANTONETTI: [Interpretation] Very well. We'll have a look

20 at it, then.

21

22 We will then show it to the accused, but we would just like to

23 check the original.

24 [Trial Chamber confers]

25 JUDGE ANTONETTI: [Interpretation] We have two documents that are

1 typewritten, the date of the 24th of October, 1993, and the original has

2 01502850; that's the number in red. The second document should be a copy

3 of the original. We have the handwritten document that we didn't have.

4 We now have it before us. This document is in English, and there is a

5 signature in the Arabic script at the bottom -- at the end of the

6 document. There is a reference to Allah in this document.

7 MR. BOURGON: [Microphone not activated]

8 THE INTERPRETER: Microphone, please.

9 JUDGE ANTONETTI: [Interpretation] The usher will show it to the

10 accused.

11 Please go ahead.

12 MR. BOURGON: [Interpretation] Mr. President, this document was

13 handwritten. This is the first document, the date of which is a date

14 that's not used by the calendar used here. It's the 24th of the 10th

15 month of the year 1413. This document was written in English. The

16 original was written in English. We would like to point that out,

17 Mr. President. And it was addressed to "to whom it may concern." We do

18 not know to whom the document was addressed.

19 The signature at the bottom of the document can't be identified

20 on the basis of what we have before us, Mr. President. This document was

21 then translated into B/C/S by someone we do not know, someone who didn't

22

23 sign the document, and then added on the same document is something by

24 another typewriter. There's a PS note and it says that this document was

25 forwarded to someone from the HVO. We do not know this person's name, and

1 the signature isn't contained in the document either. It's by someone

2 called Merdan. According to the information that the Trial Chamber has,

3 this would be the deputy commander of the 3rd Corps.

4 The arguments we have with regard to this document are as

5 follows: There's a document that was perhaps drafted by a foreigner, but

6 in any event, it's someone who speaks English. This document was

7 forwarded to the deputy commander of the 3rd Corps, who apparently

8 forwarded it to an HVO member, who apparently had it translated and

9 apparently had it placed in the archives. None of this was signed. The

10 document then appears before the Chamber today with the new English

11 translation. When we compare the two translations, the English

12 translation of the B/C/S document, and when we compare this with the

13 English original, we note that there are certain discrepancies. Our

14 problem, Mr. President, today is that such a document needs additional

15 support.

16 There are three persons involved: There's the person who drafted

17 the document, the person who apparently received it, and who apparently

18 forwarded it to a third party. So we have Person A, B, and C. None of

19 these persons signed this. We have no testimony of Person A, B, or C. So

20 it is our opinion that we cannot attach any probative value to such a

21 document. This document requires some form of support, if the Trial

22 Chamber is to be able to use it for any purposes without having to

23

24 speculate about what happened in relation to this document.

25 Thank you, Mr. President.

1 JUDGE ANTONETTI: [Interpretation] Very well. I will now let

2 Mr. Withopf take the floor. But I would like to point out that in the

3 handwritten document, which is obviously the original, there are certain

4 things written in the Arabic script and it would have been good if an

5 investigator who had some knowledge of penal procedure, it would have been

6 good if these Arabic words had been translated. Perhaps it contains

7 important information. We don't have a translation.

8 In the English translation, it says: "Signature in Arabic"

9 perhaps, but perhaps it's something else. This is something we do not

10 know.

11 Madam Usher, could you show these documents to the accused, and

12 Mr. Withopf will respond.

13 MR. WITHOPF: Mr. President, Your Honours, I note that my learned

14 friend from the Defence in respect to this document talked about the

15 probative value, and I certainly do agree that one can discuss about the

16 probative value. My learned friend didn't address the issue of

17 admissibility, and that's the gist of this whole debate.

18 We were entering meanwhile into a discussion about probative

19 value. The main purpose of our today's discussion is the issue of

20 admissibility. Even if the probative value can be discussed, the

21 admissibility is a different issue.

22 In respect to this particular document, in respect to

23 authenticity it's a document from the Croatian state archive. As I

24

25 mentioned on Tuesday, the original the Prosecution has in its possession

1 is actually a copy. It can be identified as a copy from the Croatian

2 state archive having a look at the stamp at the top right-hand corner of

3 the document.

4 The document is obviously relevant. It addresses the exchange of

5 foreign nationals against HVO prisoners handed over to Dzemal Merdan, the

6 deputy commander of the 3rd Corps, and it's relevant to the subordination

7 of the Mujahedin.

8 The date which is, as my learned friend quite correctly

9 emphasised, it's a date following the Islamic calendar; however, there's a

10 fax transmission line at the very top of the document which identifies

11 that this document was sent on the 25th of April, 1993.

12 Again, the issue is of probative value, and I agree it can be

13 discussed. But in respect to admissibility, the Prosecution is of the

14 view that this document is admissible.

15 It's correct that this document contains a very small portion of

16 Arabic script and the translation says "Signature in Arabic." The

17 Prosecution can make further inquiries whether it's possible to actually

18 figure out what the Arabic letters do mean.

19 Thank you.

20 JUDGE ANTONETTI: [Interpretation] Very well. We will move on to

21 the next document.

22 Mr. Bourgon.

23 MR. BOURGON: [Interpretation] Thank you, Mr. President.

24 Mr. President, it is clear that the Prosecution will stand by its

25

1 position and repeat in regard to each document the issue of relevance,

2 even though we don't insist on this issue. The Prosecution will continue

3 to talk about probative value. But it's clear that admissibility has to

4 take into account probative value. We have discussed this issue over a

5 two-day period. The Chamber is aware of the Defence's position and the

6 Prosecution's position, and repeating these issues today is not useful.

7 It's not relevant and it wastes the Trial Chamber's time. We quite simply

8 want to discuss the documents, Mr. President.

9 The last document has no probative value -- hasn't got enough

10 probative value, in our opinion, in order for it to be reliable. My

11 colleague said that we have a document from Bosnia and Herzegovina. He

12 said it's an official document taken from the Croatian archives. How did

13 a document end up in the archives -- how did a document from one country

14 end up in the archives of another country? Were the archives stolen? How

15 is it that a photocopy from the archives in Croatia can be an official

16 document for another country? All these issues, Mr. President, are issues

17 that we can raise.

18 All we're trying to do today is to go through each document and

19 to point out the shortcomings and deficiencies in each document and then

20 the Trial Chamber can assess the matter. It's necessary to determine

21 whether there is enough probative value to see whether a document can be

22 used with additional support, and we need to take into account all the

23 criteria, the translation, the reliability, authenticity, et cetera.

24 This is how we will proceed with the next document,

25 Mr. President. This document bears the Prosecution number 28, on the

1

2 internal list, it's 61, and the PT number is 63.

3 MR. WITHOPF: Mr. President, it's my understanding that the next

4 document on the list has the internal number 58 and is actually another

5 war diary.

6 [Defence counsel confer]

7 MR. BOURGON: [Interpretation] Mr. President, my colleague is

8 quite right. As far as the document that bears number 20 is concerned;

9 that is to say, it's another excerpt from the 3rd Corps war diary. So we

10 will move on to the document that has the number --

11 JUDGE ANTONETTI: [Interpretation] 58.

12 MR. BOURGON: [Interpretation] 58. That's the next document,

13 Mr. President.

14 JUDGE ANTONETTI: [Interpretation] So it's 51, according to your

15 list?

16 [Defence counsel confer]

17 MR. BOURGON: [Interpretation] Mr. President, it was my mistake.

18 The document number 20 has the internal number 58 and the PT number 60.

19 This document, Mr. President, need not be examined yet again, because the

20 arguments are the same as the ones that concern the war diary.

21 JUDGE ANTONETTI: [Interpretation] Very well.

22 MR. WITHOPF: Mr. President.

23 JUDGE ANTONETTI: [Interpretation] Madam Usher.

24 MR. WITHOPF: Mr. President, this war diary was on the list of

25 the Defence to be discussed, and I wish to draw the attention of the Trial

1 Chamber to the fact that this is not the very same war diary as we

2

3 discussed earlier on today; it's a second war diary from the ABiH

4 3rd Corps covering the period of time May 1993 to July 1993. Since it was

5 on the Defence list, I would please ask my learned friends from the

6 Defence to raise their objections.

7 MR. BOURGON: [Microphone not activated]

8 THE INTERPRETER: Microphone, please.

9 Microphone, please, for Defence.

10 MR. BOURGON: [Interpretation] Whether it's the same diary or not

11 the diary, arguments are the same. We would like the Trial Chamber to

12 order the Prosecution to provide the entire war diary and the translation

13 so that we can be assured of the reliability of these documents and so

14 that we can use these documents.

15 JUDGE ANTONETTI: [Interpretation] As far as this war diary is

16 concerned that we will show to the accused, as opposed to war diary

17 number 2, the colour of the diary is not the same; the cover is not the

18 same either. The Trial Chamber notes that there is a number on the first

19 page, number 3; in B/C/S it says, if I'm reading this correctly, "Ratni,"

20 and then there's the 16th of May, 1993. Below it it says, "Listova 1993".

21 THE INTERPRETER: 1998, interpreter's correction.

22 JUDGE ANTONETTI: [Interpretation] And in black felt-tip, we can

23 see that something else has been written down at a subsequent date

24 perhaps, but we can't be certain of that. So there are columns in this

25 diary number 3 from 1 to 8. This isn't the case for the other diary.

1 As in the case of diary number 2, there is -- there are

2 handwritten parts with dates. The handwriting is different. As one of

3

4 the parties said, it was the person on duty who took down notes.

5 There are also pages written in black crayon, in black pencil.

6 Show the document to the accused.

7 Mr. Withopf, document 58, are you going to tell us -- are your

8 arguments going to be the same for this document?

9 MR. WITHOPF: They will be very similar. It's an official

10 document of the ABiH 3rd Corps; namely, a war diary, covering the period

11 of time you just mentioned.

12 Your Honour, Mr. President, it's relevant. The date of entry

13 chosen by the Prosecution is the 9th of June, 1993 and shows the

14 deployment of the OG Bosanska Krajina forces in Maljine, one of the

15 killing sites that form part of the indictment.

16 If the Trial Chamber wishes to request a full copy of the war

17 diary and if the Trial Chamber wishes to have the full translation, the

18 Prosecution would not object and would accommodate such a wish by the

19 Trial Chamber.

20 JUDGE ANTONETTI: [Interpretation] And just one additional

21 clarification: This diary, which contains eight columns, we can see that

22 in column number 1 it mentions the time, and in column number 2 we have

23 the minutes. In column number 1, we have the hours; and in column number

24 the 2, we have the minutes. The details contained were taken down in real

25 time, because in translation we can see that it says 2200 hours,

1 22.30.010, and the third -- the fourth reference is 0000. So there is

2 something bizarre here. Why is there a "10" before "00"?

3 MR. BOURGON: [Interpretation] Mr. President, the difference

4

5 between the two documents - that is to say, the first one we had a look

6 at a while ago - in our opinion the first diary was a war diary. This one

7 here seems to be an operational diary. We're not certain about this, but

8 it seems that this was a diary kept by an officer on duty or someone on

9 duty in some command post within a certain unit. There are certain

10 details from operational groups, and it concerns the situation in the

11 operation group east and operation group west. It says the 308th Brigade,

12 and as you said, Mr. President, the time is a bit confusing. And it

13 mentions operational groups from Bosnian Krajina.

14 Mr. President, our opinion is the reason for which this document

15 shouldn't be admitted as it stands is that the Trial Chamber has to

16 speculate about the document if it wants to use it, and these are concerns

17 in relation to the reliability of the document. We do not have minimum

18 probative value for this document in order to use it, if the document is

19 not supported by other information.

20 Thank you, Mr. President.

21 JUDGE ANTONETTI: [Interpretation] Very well.

22 Mr. Withopf.

23 MR. WITHOPF: Mr. President, this is a document of the ABiH

24 3rd Corps -- of the ABiH 3rd Corps command in Zenica, and it has and is

25 covering most relevant portions of the indictment. I can't understand why

1 my learned friend is suggesting that such a document does not have the

2 least minimum probative value to be admitted. It's the position of the

3 Prosecution that the war diaries in particular have an extremely high

4 probative value, since they stem from the very heart of the ABiH 3rd Corps

5

6 command in Zenica.

7 [Prosecution counsel confer]

8 MR. WITHOPF: And as my colleague Mr. Mundis is emphasising,

9 these are contemporaneous documents. They were written at the time, and

10 there's hardly any better evidence to provide the Trial Chamber with that

11 shows what happened at the relevant time.

12 JUDGE ANTONETTI: [Interpretation] It seems that one of the

13 accused can't hear again.

14 THE ACCUSED HADZIHASANOVIC: [Interpretation] No, no, there was

15 just something I wanted to say, if I may.

16 JUDGE ANTONETTI: [Interpretation] Very well. We will now have a

17 break. I note that we have only examined five documents. We will have to

18 move -- move on more rapidly, because we have only examined five

19 documents. We will keep the pause to the minimum, and we will resume at

20 five to 11.00. But before we adjourn, I would like to have another look

21 at the war diary that the Defence called an operational diary.

22 Yes, Mr. Bourgon, is there anything you would like to add?

23 MR. BOURGON: [Interpretation] Quite simply, Mr. President, that

24 my colleague says it's the operational diary from the 3rd Corps. That's

25 what we wanted to say.

1 The document you have in front of you, not the original but the

2 piece of paper, we do not know whether it comes from the 3rd Corps or not.

3 We need the entire diary in order to attach minimum probative value to it.

4 Thank you, Mr. President.

5 JUDGE ANTONETTI: [Interpretation] Very well. I'll show the

6

7 document -- I'll return the document to the Prosecution, and we will

8 resume at five to 11.00.

9 --- Recess taken at 10.28 a.m.

10 --- On resuming at 11.00 a.m.

11 JUDGE ANTONETTI: [Interpretation] Let us resume and try to speed

12 things up.

13 But first of all, I should like to inform the Defence and the

14 Prosecution that the interpretation service has told us that the document

15 which was in English with words in Arabic, the Arabic words would mean "in

16 the name of God the merciful," and at the bottom, "There's only one God,

17 Allah, and his prophet Muhammad." Those would be the religious words that

18 we find on this document and not a signature, as we believed.

19 If you wish, I can give a copy.

20 MR. WITHOPF: Mr. President, the Prosecution would be most

21 grateful, and the Prosecution is certainly very grateful to the court

22 interpreters --

23 JUDGE ANTONETTI: [Interpretation] Yes. But this is for your

24 information.

25 Mr. Withopf, I'm giving you --

1 This has to be shown to the Defence as well.

2 MR. WITHOPF: There's one brief issue, Your Honours. I had a

3 brief talk with my learned friend, Mrs. Residovic, from the Hadzihasanovic

4 Defence. In the second war diary, the light green one, there is actually

5 an envelope --

6 JUDGE ANTONETTI: [Interpretation] Yes, number 3.

7

8 MR. WITHOPF: Right. There is actually an envelope contained,

9 and the envelope contains a three-page document. For explanation, this

10 envelope was found together with the war diary; therefore, it was kept

11 together with the war diary, to make this absolutely clear. The envelope

12 contains a three-page document from 1997.

13 JUDGE ANTONETTI: [Interpretation] Very well.

14 Mr. Bourgon, I give you the floor, and let us move into second

15 gear now.

16 MR. BOURGON: [Interpretation] Thank you, Mr. President.

17 I move on to the next document. It's a document with number 23

18 on the list; the internal number 61. Can I have the original, please.

19 Regarding this document, it is a document which, if we look at

20 the last page of the original document, is a document consisting of two

21 lines for the signature with two signatures that we do not recognise.

22 This document, Mr. President, for which the point of departure appears to

23 be the headquarters of the army -- unfortunately, Mr. President, I don't

24 have the English copy with me. It seems to have got lost during the

25 break.

1 JUDGE ANTONETTI: [Interpretation] We can lend you ours. We can

2 lend you ours, if you wish.

3 You have it now, I see.

4 MR. BOURGON: [Interpretation] Thank you.

5 Mr. President, as you can see, on the original we have two

6 signatures which we do not recognise. The document was sent from the

7 Zenica Municipal Defence Staff, a unit that the Chamber has no information

8

9 about so far. It was -- it is a report drawn up by the security and

10 information office of the Zenica Municipal Defence Staff. This is an

11 entity that is not a part of the 3rd Corps. It is separate from the

12 headquarters of the 3rd Corps. And we see that the document appears to

13 have been sent, one copy to the 3rd Corps organs and a copy to the Chief

14 of Staff, or "staff commander" in the translation. But regarding evidence

15 of sending and reception, we don't have any.

16 There is a stamp making the document an official one, without

17 doubt, but there are also several markings in hand. There are stars

18 drawing attention to certain paragraphs and some passages were underlined,

19 again, to draw attention to them. There is a note in handwriting which

20 has been translated and which says that, "The security and information

21 office, they have their copies."

22 We believe, Mr. President, that in view of the shortcomings of

23 this document, which doesn't give information about it being sent or

24 received, cannot be admitted by the Chamber without additional support,

25 the identity of the person who signed or approved it, who drafted the

1 document, and what the purpose of the document was. As for the contents,

2 we have no comment regarding the prima facie relevance, as well as the

3 date.

4 What we are saying is that the Chamber is faced with a document

5 which has insufficient information to allow the Chamber to draw any

6 conclusions from it unless they would be hypothetical.

7 JUDGE ANTONETTI: [Interpretation] Very well. Let us show the --

8 have the document shown to the accused.

9

10 Mr. Withopf.

11 MR. WITHOPF: Mr. President, Your Honours, this document is an

12 authentic document obviously, as conceded by my learned friend. It's an

13 official document, and it's from the Sarajevo collection 1. It's highly

14 relevant. It's a Zenica Municipal Defence Staff report of 11 June 1993

15 related to the burning down of houses and looting in the area of Ovnak,

16 and it makes reference that military personnel has to be regularly

17 checked.

18 The Municipal -- the Zenica Municipal Defence has been mentioned

19 in paragraph 25 of the indictment; therefore, this is relevant. It's

20 correct that there is no evidence whether it has been transmitted or not,

21 at least not from the document. However, this again touches only on the

22 probative value and not on the issue of the admissibility of the document.

23 Thank you.

24 JUDGE ANTONETTI: [Interpretation] Yes, Mr. Bourgon.

25 MR. BOURGON: [Interpretation] Mr. President, we will move on to

1 the next document.

2 JUDGE ANTONETTI: [Interpretation] But wait a moment for us to see

3 the document.

4 MR. WITHOPF: Mr. President, this is, again, one of the war

5 diaries, and I can make it available right now.

6 JUDGE ANTONETTI: [Interpretation] In document 61, or number 23,

7 we see that it is a document that is typewritten. It has a stamp of the

8 Municipal Staff of Zenica. We also note in the English translation in the

9 first paragraph that the inspection of Ovnak required by the signatories,

10

11 two of them, was carried out at the request of the staff commander. The

12 staff commander, is that a military staff commander? That would be

13 logical, particularly as the addressees are the 3rd Corps and the staff

14 commander. So this could be an authority above the 3rd Corps. So that's

15 as much as can be said at this stage.

16 I am returning the document, and I'll give the floor to

17 Mr. Bourgon for his next document.

18 MR. BOURGON: [Interpretation] Thank you, Mr. President. I pass

19 on to the next document, number 28 on the Prosecution list. It is a

20 document that is an excerpt from a war diary.

21 I have the original in my hands now. The same applies to this

22 document. Judging by the original, two documents seem to have been

23 extracted from this diary. The date is May 1993. And I also see an

24 envelope in this document with a document inside, with a number, which

25 consists of some sort of a list with a number. This number is not part of

1 the document as such, though it has been given a number.

2 Our arguments regarding this document, Mr. President, are that

3 this is a document drafted by hand. We know from the translation of the

4 document that there is a question regarding the date.

5 If we look at the original document, we see that the date

6 indicated is - I'm looking for the first page - it would be the 25th of

7 June, at the bottom of the page; whereas, on the translation we have the

8 date 23rd of June, 1993.

9 If we look at the translation, there are several places,

10 particularly page 2, a paragraph which mentions OGS Memisevic. There are

11

12 several parts that are illegible. Also in the second -- in the following

13 paragraph. So there are comments that have been added by the translator

14 and several indications that passages are illegible.

15 Now, if I try to find these passages in the original document --

16 I have the original here, and at the bottom of the page the name of a town

17 is mentioned and the 25th of June, 1993; whereas, the translation says the

18 23rd of June. It could be a "3", I'm told.

19 I'm looking at the handwritten entries, and our arguments

20 regarding this diary is the same as for other documents from diaries. We

21 would like the Chamber to ask the Prosecution to produce these diaries in

22 totality with translations, which would meet the criterion of reliability.

23 My learned friend from -- of the Kubura Defence may have some

24 additional remarks to make regarding this document.

25 We also note, Mr. President, that this appears to be a report on

1 a meeting. What we don't know is to what extent the report reflects

2 all -- everything that has been said or some of the things that were said

3 and what is the state of that report. In our professional activities, be

4 it as Defence or Prosecution, we have all attended meetings and witnessed

5 minutes being made. The person making the minutes can go into great

6 detail or can be very concise. And in a war context, this would be highly

7 concise; hence the question of probative value.

8 In any event, we need to have the whole diary to be able to judge

9 the quality of information it contains.

10 Thank you, Mr. President.

11 JUDGE ANTONETTI: [Interpretation] Mr. Withopf.

12

13 MR. WITHOPF: Mr. President, I will try to keep my answer very

14 brief.

15 Again, the Prosecution offers to tender a full copy of the full

16 war diary. This stems from the Sarajevo collection, obviously. It's

17 highly relevant. It's the date of 20 June, 1993. As my learned friend

18 mentioned, it covers obviously the minutes of a meeting of the 3rd Corps

19 commander, the accused Hadzihasanovic, with commanders of subordinated

20 units, including the 7th Muslim Brigade commander at the time; namely, the

21 accused Kubura. It's highly relevant in respect to command and control,

22 to the deployment of units, and on page 4 it quotes a proposal made under

23 7th Muslim Mountain Brigade, and it says "Hiring foreign nationals."

24 The technical issues that have been addressed by my learned

25 friend have been addressed earlier on today. It's common that the

1 interpreters make their comments in order to provide the ones who have to

2 read the document with the information necessary. Such documents have in

3 all proceedings before Trial Chambers in this Tribunal been accepted.

4 That wasn't a major problem at all.

5 The envelope which has been addressed at the beginning, this is

6 exactly the envelope with a three-pages document which I had mentioned

7 earlier on.

8 Thank you very much.

9 JUDGE ANTONETTI: [Interpretation] Very well. We will check once

10 again the documents.

11 So we note that they were written in blue pen. We also see that

12 there's an envelope coming from the 3rd Corps with a document, a

13

14 three-page document, inside which has not been translated, of course, and

15 which is signed by the commander Brigadier Jusic with a stamp, "Commander,

16 3rd Corps," in blue.

17 A moderately informed person could see that when there is an

18 official document included in a diary of this kind, one can assume that it

19 comes from the 3rd Corps.

20 So I am returning the document to Mr. Withopf, and I'm asking

21 Mr. Bourgon to continue, please.

22 MR. BOURGON: [Interpretation] Thank you, Mr. President.

23 The next document is number 32. It is an order attributed to the

24 accused General Hadzihasanovic because his block signature was used. It

25 is a category of documents that we wish to draw the attention of the

1 Chamber to.

2 I have here the original document, which bears a signature which

3 is unknown to us and which does not appear to be the signature of the

4 accused.

5 This order, Mr. President, with respect to transmission and

6 reception, there's no mention of that on the original, except on the back

7 of the document, and I see there that there is an indication in

8 handwriting "325th Brigade, in Vitez." This is not to be found on the

9 translation. No mention is made of the transmission in the English

10 translation.

11 We have a list of addressees on the second page of the document,

12 and I'm talking about the translation. We have a list of the entities to

13 which the document was addressed. However, there is no information as to

14

15 the document having been sent.

16 If we look at the original, Mr. President, one could conclude

17 that this was a document produced mechanically with continuous pages,

18 because we see there is a piece from another page attached, but a document

19 of this kind with a handwritten signature, I think that the transmission

20 would be found -- indicated in hand with a stamp. However, we have the

21 number on the stamp; it is the Prosecution number 01821121. This number

22 appears also on the back. We don't know whether the 325th Brigade of

23 Vitez, which is mentioned on the back of the document, by whom this was

24 added [as interpreted].

25 For these reasons, Mr. President, we believe that this is an

1 order attributed to the accused, on the basis of his block signature.

2 According to our arguments yesterday, a document of this kind cannot be

3 tendered and used against the accused without having a witness who would

4 come and tell us something about this document, its context, and its

5 objective. Of course, the Chamber is capable of reading the document and

6 making its own conclusions. And that is the gist of all our arguments. A

7 document should not require any interpretation on the part of the Chamber,

8 and the Chamber should be able to make its conclusions without asking

9 itself any questions about the document.

10 JUDGE ANTONETTI: [Interpretation] Mr. Bourgon, when you talk of a

11 block signature, how do you define this term? Does a block signature mean

12 a stamp, name, and signature? How would you define the term "block

13 signature"?

14 MR. BOURGON: [Interpretation] A block signature, Mr. President,

15

16 is what is found at the bottom of a document indicating the name and

17 position of a person which, prima facie, appears to indicate that the

18 document is attributed to that person. Our problem is that this document

19 is attributed to the commander General Hadzihasanovic but the document is

20 not signed by him. We don't know who signed it. We have no information

21 as to who was authorised to sign on his behalf.

22 More importantly - and we will see that in another document as

23 well - normally in all administrations when a subordinate is authorised to

24 sign on behalf of the superior, there is the word added "for." We will

25 see some such documents later on. However, in this case, we have the

1 block signature of the accused, but someone else has signed it. Was it

2 used without the accused being aware of it, or did the accused authorise

3 this person to sign? This may be put into evidence during the Defence

4 case.

5 But this document raises too many questions to be considered to

6 be sufficiently reliable.

7 JUDGE ANTONETTI: [Interpretation] In view of what you have said,

8 the Chamber notes the following, before I give the floor to Mr. Withopf:

9 Clearly this document has been faxed, because I see here too that the

10 document at the top and at the bottom has an indication showing that this

11 was a part of a series of documents, which you didn't mention.

12 Also, there's a blue stamp. And as for the signature, there is a

13 signature in green with a slash and then some words. In classical

14 administrative law, everyone knows that when there is a slash, that means

15 that whoever is signing is signing for someone. But we don't really know

16

17 who actually signed.

18 When one turns the document to the back, we see the "325th BBR

19 Vitez." One can assume perhaps - but that is an assumption - that the

20 said fax coming from the 3rd Corps -- but I also wish to say that there is

21 an order number, 02/33-67. So it follows on to other previous orders. So

22 it could be that this document was sent by the unit in Vitez, which is

23 anyway mentioned among the addressees. "325th BBR," and we have here

24 also "325th BBR Vitez." Maybe the archivist could tell us that indeed

25 this document originated from the 325th Brigade.

1 So those are the things we can note holding the document in our

2 hands.

3 I note also that there are holes on the left-hand side, which

4 means that it was included in a binder. Are those holes made by the

5 Prosecution? And I see that it -- that the holes coincide. Maybe it's

6 the Prosecution that made those holes and not the archivist when the

7 document was found.

8 Though the photocopy that we have has other holes moved slightly

9 to the right, which means that the photocopy that they gave us is a

10 photocopy of the original which was part of a bigger document. You were

11 able to note that the format of this document is not identical with the

12 photocopy.

13 Having made those notes and reservations, I return the document

14 to Mr. Withopf, who will convey his views.

15 MR. WITHOPF: Mr. President, Your Honours, if I may please very

16 briefly first address the more technical issues Your Honour, Mr. Presiding

17

18 Judge, has just raised.

19 The holes were not made by the Prosecution. The originals are in

20 exactly the very same shape as they were found in the ABiH main archive.

21 And Your Honour, Mr. Presiding Judge, we already mentioned that this

22 document in its original has a different format than the usual in A-4

23 format. Therefore, the copy shows on the right-hand side of the true

24 holes, photocopied holes [sic].

25 If I may briefly address the other issues. This is, as I

1 mentioned, a document from the Sarajevo collection 1. It's an official

2 document of the ABiH. It's an order of the 3rd Corps. It's relevant.

3 It's an order of the accused Hadzihasanovic. It shows command and control

4 and subordination of troops. And the original itself shows that at the

5 time - namely, in July 1993 - the 3rd Corps had at least quite

6 sophisticated means to transmit such orders.

7 The main issue, however, which has been addressed by my learned

8 friend from the Hadzihasanovic Defence is the signature. Your Honour

9 Mr. Presiding Judge has already made a number of remarks I would have

10 made, so I don't need to repeat them. Since this issue, however, will be

11 discussed probably in respect to a number of additional documents, it's

12 correct. It's obviously or most likely, to be cautious, most likely not

13 the signature of Mr. Hadzihasanovic.

14 This is certainly not an unusual situation in the military. The

15 commander of a corps - and we had witnesses who confirmed that the accused

16 Hadzihasanovic was a commander who was quite often in the field - is not

17 on a very regular basis always at his headquarters to sign any orders or

18

19 any other documents. It's always - and it's pretty common in all

20 militaries in the world - that there is a different person who is entitled

21 to sign on behalf of the commander.

22 The important issue, however, is that the order itself is still

23 issued by the commander.

24 Interpretation. There was a point addressed by my learned

25 friend. This is a pretty straightforward order, and it doesn't require

1 any particular knowledge. So in respect to the contents of the order,

2 there's certainly not any room left for broader interpretations.

3 This is the observations -- or these are the observations I wish

4 to make at this stage in respect to this document. Thank you.

5 JUDGE ANTONETTI: [Interpretation] Thank you. We are going to

6 proceed.

7 Mr. Bourgon, you have the floor.

8 MR. BOURGON: [Interpretation] Thank you, Mr. President. I'm now

9 addressing the next document, number 33. Could we have the original as

10 well as the original of the previous document. Indeed, I would like to

11 see this slash following the signature. I'd missed that before when I

12 first looked at the document.

13 Whilst I'm being given this document, let me underline regarding

14 the last -- the previous document what our exact fears are. My colleague

15 from the Prosecution said this is an order from the accused, so the

16 Prosecution take for granted this is an order by the accused, while he has

17 not signed the document. And that's the problem. That's where the

18 problem lies, Mr. President. He says that it happens that way in all the

19

20 armies in the world, but here we do not have the knowledge or the

21 experience of all the armies in the world, and this is the proof or the

22 evidence that we need in order to validate such a document.

23 My colleague from the Prosecution is not able to provide us with

24 such information. It must come from a staff, from an army; if not from

25 that army, from an army functioning in the same way as to the signing of

1 documents.

2 JUDGE ANTONETTI: [Interpretation] We'll be able to put this

3 question to the expert witness next week.

4 MR. BOURGON: [Interpretation] The next document, I'm looking at

5 it and I look only at the signature. I for one see the signature in a

6 green ink, but I fail to see any slash that would show any kind, as you

7 said in administrative law, of saying "for" or "on behalf." When such a

8 mention is used, we'll see later on that it is stated quite clearly as

9 such in the document.

10 The next document, it bears the date of the 4th of July. I do

11 have the original here in front of me. Once again, we're dealing with a

12 document which is not signed. Well, it bears a signature, but it seems to

13 be a different signature from the one we see in the block signature. And

14 what I mean by that, it is the block signature of Mehmed Alagic as

15 commander of the Operational Group Bosanska Krajina. So the document is

16 sent by the operational group and is addressed to the motorised brigade,

17 but we don't know which one it is, because it is illegible in the

18 document. We do not know which brigade this document is sent to.

19 We have a reception stamp, however, in the original, which I did

20

21 not have, or which was illegible on the photocopy I was given, and which

22 is not to be found in the original; whilst here it looks as if the

23 document was received by the 312th Brigade, which is something I couldn't

24 find. I did not have on the document I used to work. So this is one less

25 shortcoming as to this document.

1 Mr. President, the Trial Chamber will recall that this was a

2 document presented by the Prosecution when we had a witness, witness

3 Eminovic last week. This witness was not able to recognise the said

4 order, and since he failed to recognise it, it was not tendered into

5 evidence. As it was not tendered into evidence, today the Prosecution is

6 asking us to accept the document whilst, although, this document that the

7 witness whose name is mentioned was not able to recognise the document.

8 If a name is mentioned, if a witness is unable to recognise the document,

9 it casts serious doubt as to the very existence or the drafting or the

10 sending of the order. This is an additional factor added to the technical

11 shortcomings. As a result, such a document cannot be used by the Trial

12 Chamber without further information, without further evidence being

13 adduced. Thank you.

14 JUDGE ANTONETTI: [Interpretation] The Chamber apprises the

15 document, which is very useful. It's useful to see it because we can see

16 that this document is of the same origins as the previous ones, inasmuch

17 as it was sent electronically, so it was sent by fax or with a system of

18 continuous pages. As to the -- this is just an observation.

19 The quality of the paper is the same as that of the paper we've

20 seen before. There are two holes that are punched here as well. There is

21

22 a stamp, a very official stamp of the 312th Brigade, so the brigade must

23 have received the document and stamped it. However, there is something

24 else that was not mentioned so far by the Defence: This document

25 apparently comes from Mr. Alagic. It is an answer to another document

1 which number 03/1001774 from the 3rd Corps, [In English] "in reply to."

2 [Interpretation] In other words, it is the logical sequence of a previous

3 document.

4 Very well. So these are the observations made by the Trial

5 Chamber without taking a stance as to the substance of the document, so

6 just looking at it, the colours, the punched holes. As to the signatures,

7 rightly so the Defence argued that in the block signature there was no

8 signature, that there was one signature at the bottom. But if this

9 document is a document that came by telex or by other means of receiving,

10 there's no signature. However, we can see a signature at the bottom; it

11 may be the signature of the person who received the document and who

12 authenticates the reception of the document. So these are technical

13 observations.

14 Mr. Withopf.

15 MR. WITHOPF: Mr. President, Your Honours, very briefly. Again,

16 it appears that this document was sent and that it for that reason doesn't

17 contain a signature above the signature block, a pretty common and usual

18 situation.

19 If I may please address the one issue that this document, what's

20 completely correct, has been shown to the witness Jasenko Eminovic last

21 week. The Prosecution, however, does not only put weight on this document

22

23 in respect to the function the witness Jasenko Eminovic had at the time.

24 The relevance goes far beyond it. It says, and it makes reference to an

25 ABiH military person in Mehurici. This document is dated the 4th of July,

1 1993, and order a march of prisoners to Zenica under the 306 command.

2 Obviously a highly relevant document.

3 So the issue that the witness Eminovic was not in a position to

4 recognise this document shouldn't play a role. I wish, however, to add

5 that the Prosecution has not withdrawn the document; the document has been

6 marked for identification and it's P104 ID.

7 Again, the Prosecution is of the view this may be discussed under

8 whatever aspects of the probative value. However, the reasons put forward

9 by my learned colleague doesn't diminish the probative value to the extent

10 that it cannot be considered being an admissible document.

11 Thank you.

12 JUDGE ANTONETTI: [Interpretation] Thank you very much.

13 Mr. Bourgon, please proceed.

14 MR. BOURGON: [Interpretation] Thank you, Mr. President. I move

15 on to the next document in the list, document number 43.

16 Mr. President, this is a document lacking, once again, a

17 signature. It originates from the west or Zapad Operational Group and

18 addressed personally to the commander of the 3rd Corps; namely, the

19 accused General Enver Hadzihasanovic. So this is a very important and

20 relevant document with regard to the information that would be available

21 to the accused.

22 Looking at the document that we have here, there is no evidence

23

24 of it being sent or received. I observe that at the back of the document

25 there's a sign that mentions indeed continuous paper, so it may have been

1 that there were other documents before and after this one. You can find

2 the letters "L" and "AC", but it might be that it was the printer that

3 would print out continuously, one document after the other. There are

4 illegible parts in the document, so we should ask ourselves whether the

5 accused did indeed receive the document or whether it was sent.

6 A moment ago we had a document, judging by the observations that

7 we could make had been sent and it did bear an original signature. In

8 this instance, there is no signature. One individual is identified in the

9 document, but there is no original signature. There is a mention at the

10 top of the document that mentions the time, which is 10.15. There are

11 numbers in red ink, and these are the numbers written in by the

12 Prosecution. There is a handwritten mention at the top of the document as

13 well.

14 Mr. President, if this goes to the acts and behaviour of the

15 accused - because here we're talking about the knowledge he might have

16 had - then you have to prove that the document was received by the

17 accused. Do we believe regarding admissibility that such a document

18 without further evidence, without even knowing whether it was sent or

19 received, is it sufficient? We do not think so, in terms of

20 admissibility. We merely want to have some kind of evidence.

21 In this document, you have a number or numbering, and we don't

22 know -- we do not know how documents were numbered. We do not know

23 whether they would follow each other or whether there was the same system

24

25 across to the operational group, say, and the 3rd Corps. So we do not

1 know -- we do not think that such a document is reliable without further

2 evidence; otherwise, it is just too many questions that you have to ask

3 ourselves. You don't know whether it was sent or received or even it was

4 drafted by the individual mentioned at the bottom of the document.

5 A last comment: With regard to the translations of documents.

6 Often we find a mention - and this is page 2, last line of the document -

7 we see a heading that says "Sent to," or forwarded to [In English]

8 "Commander, 3rd Corps" [Interpretation] And then file. And under the

9 heading you have [In English] "stamp and signature." [Interpretation] So

10 this is the translation that mentions that. But if I look at the

11 original, I find the same mention, but it doesn't mean that there is a

12 stamp. It merely shows or indicates that this document was meant to

13 receive a stamp, but the stamp is not there.

14 The other document with the same quality of paper that had been

15 sent by this machine had a signature and a stamp; not the case here. On

16 the contrary. And we do not refer to the substance of the document. The

17 substance seems quite relevant, and that applies to the date as well,

18 which is September. But we doubt whether we can rely on the document as

19 such.

20 JUDGE ANTONETTI: [Interpretation] Very well. We're going to look

21 at the document, after the accused have seen it.

22 Did you want to add anything, Mr. Bourgon?

23 MR. BOURGON: [Interpretation] Yes. Thank you, Mr. President.

24 Just an additional piece of information. The document you have in your

25

1 hands has a page that was prepared by the investigators of the OTP. It's

2 some kind of an analysis. The analysis part should not be confusing as to

3 the quality of the document.

4 JUDGE ANTONETTI: [Interpretation] We're not looking at the

5 analysis.

6 MR. BOURGON: [Interpretation] I'm sure about it. That's not the

7 point. The point is, of course, that the Prosecution had unbelievable

8 means at its disposal to carry out this type of analysis, which is not the

9 case for the Defence. But the analysis is not part and parcel of the

10 document. That's the only thing we wanted to say. Thank you.

11 JUDGE ANTONETTI: [Interpretation] Regarding this document,

12 looking at it, we can see that this document is part of a sequence of

13 documents. There again, you can see it is indented at the top and at the

14 bottom, so we can see that it is part of a sequence of documents.

15 We also observe something which was not said: At the back of the

16 document we can see "TSDAC." It must be the brand of paper, judging by

17 it, because there is a follow-up to that. So it must be the -- actually

18 the trademark of the paper. Obviously it would be very easy for the

19 Prosecution to identify the origin of the paper.

20 And there are two holes, as usual, and indeed there is no

21 signature. You have the name of the commander of the Zapad Operational

22 Group, Mr. Selmo Cikotic. However - and this was not stated by the

23 Defence - under the text you find this "SEC/NA." "SEC," the acronym is

24 probably -- well, the initials of the commander, Selmo Cikotic; and "NA"

25 it must be his or her secretary or the person in charge of drafting or

1

2 typing the document. This is a tradition in all the administrations of

3 the world. The initials of the author of the document are in the document

4 as well as the initials of the typist. This may have escaped Mr. Bourgon,

5 but it is stated; you have the slash with "NA."

6 So this is the format of this document. The paper may look

7 similar, in terms of quality, to the other documents we've seen

8 previously.

9 Mr. Withopf, and I am going to return the document to you without

10 looking at the comment.

11 MR. WITHOPF: This document, as has been mentioned by my learned

12 friend, is highly relevant. It's highly relevant to notice and knowledge

13 of the accused Hadzihasanovic in respect to the detention facilities in

14 Bugojno.

15 This is one of the documents - and the Prosecution is very happy

16 to have been enabled by the Defence to discuss this particular document -

17 this is one of the documents -- documents which shows what we said

18 yesterday; this is a circumstantial case, and documents must not be looked

19 in an isolated manner at.

20 I yesterday mentioned there are sometimes a series of documents

21 and the full evidence is only -- can only be seen once one had a look at a

22 second document.

23 The next document which will be discussed and which is on the

24 list of the Defence is exactly the answer of the accused Hadzihasanovic to

25 this document. And, Your Honours, Mr. President, you will see once you

1 have the next document in your hands that this is making reference to the

2

3 document you had in front of you a few seconds ago. This situation very

4 strongly -- very strongly supports the argument made yesterday by the

5 Prosecution that it is not possible to only look at one document to judge

6 on the issue of admissibility. Documents - and that applies to all

7 documents - must be seen together with other evidence, with other

8 documents, and must be seen together with any other evidence such as

9 witness testimony before this Court. Therefore, I'm actually very happy

10 to have been -- had the opportunity -- to have had the opportunity to

11 discuss this document, and I wish to draw the attention of the Trial

12 Chamber to the next document, which confirms that the first document has

13 been sent.

14 Thank you.

15 JUDGE ANTONETTI: [Interpretation] Yes.

16 Mr. Bourgon, I suppose you're going to move on to the next

17 document, which is the reply to the previous document. So basically we

18 have two documents.

19 MR. BOURGON: [Interpretation] Thank you, Mr. President.

20 Yes, the following document bears number -- the number 44. This

21 is a document addressed to the commander of the Bosanska Krajina

22 Operational Group. I'm not sure that I've got the right document.

23 [Defence counsel confer]

24 JUDGE ANTONETTI: [Interpretation] If you don't have it, we can

25 lend you ours.

1 MR. BOURGON: [Interpretation] Yes. Thank you very much. I now

2 have the original in my hands.

3

4 There is a signature. We can see the signature block of the

5 accused, so this document is attributed to the commander of the 3rd Corps.

6 However, the signature in the document is not the commander's -- the 3rd

7 Corps commander's signature.

8 Now, I'm looking at the back of the document, and I can see that

9 there is evidence that it was sent, but that sort of receipt was not

10 enclosed -- oh, yes, it is. It was enclosed through the translation of

11 the document. We therefore can see that allegedly this document was sent

12 at 20 hours 26 minutes on the 19th of September.

13 There are other numbers that are indicated, except that we do not

14 have any information regarding such numbers.

15 Beforehand we had a document personally addressed to the

16 commander of the 3rd Corps, an unsigned document. Here we have a reply

17 which is attributed to the commander and bears the signature of another

18 individual and doesn't either have the "for" mentioned; that is, on behalf

19 of the accused. So we do not know whether the document, in spite of the

20 number, the stamp at the back, we do not know whether the document can be

21 attributed to the accused without the presence of any further evidence,

22 which is the system that was applied within the 3rd Corps. We quite agree

23 as to the relevance of this document. There's no problem about the dates.

24 The question is the following: We have two documents that follow each

25 other. We're not playing any games. We could have separated those two

1 documents. We want to see them together. No, we argue that for the Trial

2 Chamber to be able to use a document that is tendered into evidence

3 without a witness, without additional evidence, it is worse because it is

4

5 attributed to the accused in person, and we know that the signature is not

6 the accused's signature.

7 JUDGE ANTONETTI: [Interpretation] Very well. Madam Usher, please

8 give us the document, first to the Judges and then to the accused. We

9 just want to check something.

10 I'm going to pass the document on to the accused, and then it

11 will be returned to the Prosecutor.

12 What is the observation? As usual, we have punched holes. The

13 quality of the paper, well, it is a paper that comes from a recording

14 system. The best evidence of it is that you can see sort of stripes at

15 the back of the document. This is a first regarding these documents.

16 There is the stamp of the 3rd Corps with the receipt date, a number, 2080,

17 a date is also mentioned, it is the date of the 19th of September, 1993,

18 20 hours and 26 minutes.

19 On the other hand, regarding the issue of the signature, we

20 observe that there is a stamp in blue ink, which means that the blue stamp

21 is not the stamp at the time when the document is sent, because you do not

22 send coloured documents, documents in colour. In other words, the stamp

23 that you can see is the one that was put onto the document when it was

24 received. As for the signature to be found here, it must have been the

25 signature of the individual that received the document, which accounts for

1 the fact that it is not the signature of the author of the document. So

2 forensically speaking, this is what can be said as to this document,

3 judging by the look of it. You have the signature, the stamp -- various

4 stamps.

5

6 Now, the issue of the relevance is something else, but we observe

7 that the contents of the reply is a reply to the first document, because I

8 can see in the first paragraph what is said. It is said that it agrees to

9 liaison officers being appointed, and that was the question that had been

10 mentioned in the previous document.

11 Very well. Madam Usher, please give the document to the accused,

12 and Mr. Withopf you have the floor.

13 MR. WITHOPF: Mr. President, Your Honours, I do not want to

14 repeat myself. This is again the issue of the signature. The Prosecution

15 has made its observations on a number of occasions today. It may or may

16 not be an issue of the probative value, but certainly not an issue of the

17 admissibility of the documents.

18 I, however, wish to very briefly draw the attention of the Trial

19 Chamber to the fact that left to the signature you have the official --

20 the very official stamp of the ABiH 3rd Corps, what shows that this is a

21 very official document. This - and I do not want to speculate - but I

22 have seen signatures of the deputy commander of the ABiH 3rd Corps, Mr.

23 Dzemal Merdan, and at a first glance it may appear to me that this

24 signature -- this "M" is actually Mr. Merdan's signature. However, I do

25 not want to speculate at this junction about this. Thank you.

1 JUDGE ANTONETTI: [Interpretation] Very well.

2 Mr. Bourgon, please continue.

3 MR. BOURGON: [Interpretation] Thank you, Mr. President.

4 The next document bears the number 45. This document is part of

5 a different category, as it is a document which does carry the signature

6

7 block of the accused but with the specific mention "for" the accused.

8 This brings me to a remark that was said in connection with the

9 previous document, as there are some similarities. As I don't have the

10 original with me, I don't know the colour, but I'll be able to do -- see

11 that in a minute. I'm looking at the document now, and I do see a blue

12 stamp and a signature, which could be, according to the judgement of the

13 Chamber, the assumption of the Chamber, which is quite reasonable, that

14 this could have been stamped upon reception and signed by the person

15 receiving it. Nevertheless, my friend from the Prosecution underlined

16 something very interesting, that this was the stamp of the 3rd Corps. It

17 can hardly be put upon the reception of the document as the document

18 emanated from the 3rd Corps and was sent to another place.

19 My learned friend also appears to recognise the initials of the

20 signatory, the deputy commander of the 3rd Corps. Could he have been in

21 the Zapad Operational Group and that is why he signed it, or was he with

22 the 3rd Corps? All these hypotheses go in support of the Defence thesis

23 that the document as such is not reliable. It is certainly that it is

24 important to see these documents that affect the substance and have

25 probative value, but can we attribute this document to the accused when we

1 don't have sufficient information?

2 The signature that we do have in our hand just now, if we look at

3 the signature block we see initials. I didn't mention it before. You

4 noted very well a moment ago there was something signed by Selmo Mikotic

5 [as interpreted] with the initials "SM." I didn't notice it. Now I

6 see "HH/TA." So I don't know who is HH, who drafted the document, nor who

7

8 was the person who typed the document. I do know, however, that someone,

9 whose signature I don't recognise, did sign it for the commander. Did the

10 commander give instructions to someone to sign a document on his behalf?

11 We know that in public administrations when a superior officer authorises

12 a subordinate to sign a document on his behalf, there are explicit

13 instructions to that effect, and surely this can be found in the archives.

14 The Prosecution had access to those archives and we don't have that

15 information.

16 In the case of the document we have in front of us addressed to

17 the commander of the Bosanska Krajina Group, a document which mentions the

18 sender - I have the original - it also has punched holes, and it would

19 appear that the 3rd Corps sent it at 11.30 on the 18th, I think - I can't

20 see exactly - probably the 18th of October, 1993. October 1993. And the

21 person who signed it is someone we do not know. He signed it in a

22 specific manner, specifically for the commander. One might ask oneself

23 what one should do with a document that is not signed, one that is signed

24 by someone else, by another one signed for the commander. All these

25 points, from the technical point of view, raises the question as to

1 whether one can use the document without additional evidence. That is the

2 only point we are making, Mr. President.

3 JUDGE ANTONETTI: [Interpretation] Let us look at the document and

4 we'll show it to the accused.

5 Again, it is the same type of paper that we've already seen. It

6 fits within a series of documents that must have come through a machine,

7 because there are traces here that it has been cut. There are punched

8

9 holes, as has been indicated. As the Defence tells us, on the back there

10 is a stamp registering the document on the 18th of October, 1993, and

11 mention is made of the 3rd Corps, and a signature appears. There's also a

12 stamp of the 3rd Corps in blue, again with a signature.

13 This document has an indication "Urgent" - probably in B/C/S it's

14 also "Urgent," the same word - then there's a number also, "02/332273."

15 So the following one would be 2274 and the previous one 2272, and the

16 22 -- it's 2273. It could be 22 hours 13, but it's probably not 22.13 but

17 22.73 as a number. So that is the appearance of this document.

18 And one can also see along the length of the paper a black trace

19 which comes from the machine -- the receiving machine, which seems to be

20 faulty because the ink is causing problems and it's quite visible the

21 whole length of the piece of paper.

22 Let us show the document to the accused.

23 Mr. Withopf.

24 MR. WITHOPF: What I, Mr. President, again wish to emphasise in

25 this context: This is a very official document of the ABiH 3rd Corps

1 command. It's the request of the accused Hadzihasanovic for submission of

2 information in respect to the massacre in Maljine, and it stems from the

3 Sarajevo collection 1. It's obviously highly relevant to the massacre in

4 Maljine. It shows notice and knowledge of the accused Hadzihasanovic in

5 that respect. And I refer to the Prosecution's pre-trial brief for

6 further details.

7 The issue has been again addressed about the signatures. I do

8 not, in order to not waste time, to in a stereotype manner to always

9

10 repeat myself. The true issue is we have an official document that stems

11 from an official archive that has official stamps on it. It's obvious

12 it's an official document. I gave some, in my view, reasonable

13 explanations in respect to many of the issues related to the signatures.

14 And the only issue we are talking about is the following: Does the fact

15 that somebody else signed a document, instead of the person who is

16 mentioned on the -- what's called the signature block, or does the fact

17 that there is no signature, or does the fact there is only an initial,

18 does this render the probative value or does it diminish the probative

19 value of such a document, such a highly official document, does it make

20 the probative value so little that it cannot be admitted? And it's the

21 Prosecution point of view that none of the official documents face such a

22 situation. They are official documents, and it's an issue of probative

23 value but not -- certainly not an issue of the admissibility of the

24 documents.

25 JUDGE ANTONETTI: [Interpretation] Next document, please. We have

1 a quarter of an hour before the break.

2 MR. BOURGON: [Interpretation] Mr. President, the next document

3 bears the number 116. It is a report attributed to the -- I'm sorry.

4 According to the Prosecution list, it is number 50 on the Prosecution

5 list. It's a document dated the 8th of November, 1993.

6 This document, Mr. President, in reference to the debate that we

7 had yesterday and the submissions we made regarding the ratione temporis

8 of the indictment, this document was drafted on the 8th of November, 1993

9 by the new commander - at least prima facie - so this document could be

10

11 attributed to the new commander of the 3rd Corps; that is, Mr. Mehmed

12 Alagic.

13 And if we look at the document, on the signature page - I have

14 the original in front of me, which I'm going to look at - there is a

15 signature with a stamp of the 3rd Corps, but we do not recognise the

16 signature on this document. Is it the signature of the commander of the

17 3rd Corps, or is it the signature of somebody who signed on his behalf?

18 The letters to the left, we find "AS" and "MS"." Does this apply to the

19 drafting of the document or the typing of the document? Those letters do

20 not correspond to "MA," as Mehmed Alagic. So we don't know whether

21 Commander Alagic drafted the document, signed the document, or gave

22 instructions for the production of that document.

23 However, looking at the back of the document, there's an

24 indication that says that this document appears to have been sent on the

25 8th of November, and again there's a signature that we don't recognise.

1 If we look at the contents of this document, without entering

2 into a detailed analysis we can see that the document as such is not

3 relative to the acts of General Hadzihasanovic.

4 My colleague from the Kubura Defence might comment on it as well

5 because it is dated the 8th of November, 1993.

6 This is a document, Mr. President, when our client was no longer

7 commander of the 3rd Corps. This document, according to the submissions

8 we made yesterday, to be used against him needs to have additional

9 guarantees regarding reliability, because we come across the same problems

10 with respect to the signature, the handwritten notes, and also we don't

11

12 know who gave instructions for such a document to be drafted on the 8th of

13 November, 1993.

14 Those would be our observations, Mr. President.

15 JUDGE ANTONETTI: [Interpretation] The Chamber will examine the

16 document.

17 Here again it is the same type of order, sent by -- through a

18 transmission system. The documents could be cut, and we see evidence of

19 that. There are several holes in it, which means that it must have been

20 folded to be cut in half because it wasn't cut in the middle. It could

21 have been cut in half, but it is rather long, and that's why it was

22 folded.

23 This document to the left has two dates in the B/C/S language.

24 There's the 8th of November, 1993, and above that, the 13th of November,

25 1993.

1 On the back, there is a stamp in blue and also a stamp of the

2 3rd Corps with the arrival date 13th of November, 11 hours 45 minutes.

3 So regarding the signature, we have the same problem again; there

4 is a stamp in colour, which may be the arrival stamp. There is some

5 scribbling, and before that, there is a line. Does this mean that the

6 person who receives it stamps it and signed it, or is it the person who

7 sent the document? We don't know that.

8 Regarding relevance, there is a paragraph, we are told, relative

9 to the 7th Corps which was placed at the disposal of the 7th Corps, and

10 according to the command they felt it was necessary to integrate them

11 within the 3rd Corps. I'm referring to the last paragraph of the English

12

13 translation.

14 In this document translated into English, the stamp "ECV" means

15 electronic communications centre. That is in B/C/S. And in English it

16 must be the same translation. Maybe the system of communication was of an

17 American or British origin, and that is why this abbreviation is used.

18 We are going to give the document to the accused.

19 And, Mr. Withopf, you have the floor.

20 MR. WITHOPF: Mr. President, very briefly, taking into account

21 that we are close to the next break and so far we have only discussed 12

22 out of the 46 or 50 documents which we were supposed to discuss today.

23 I'm a bit surprised that my learned friend from the Hadzihasanovic Defence

24 has selected this document, since it's obviously not related to the

25 accused Hadzihasanovic. As Your Honour Mr. Presiding Judge already

1 stated, this document deals with the involvement of the 7th Muslim

2 Mountain Brigade in Vares and it makes reference to the cases -- cases of

3 looting of members of the 7th Muslim Mountain Brigade in Vares.

4 I refer to paragraph 45 of the Third Amended Indictment.

5 In respect to the signatures, I do not need to repeat myself. I

6 wish to emphasise, however, that the very same statement applies to this

7 document as to many other documents as well.

8 JUDGE ANTONETTI: [Interpretation] It is 25 past 12.00. We will

9 have a break. We will resume at ten to 1.00.

10 In view of the delay, which is understandable, in view of the

11 technical discussions, if we don't finish today, we will continue at a

12 later stage, obviously not next week, because we have a witness planned.

13

14 We will have to find a date to continue the examination of these

15 documents. There's no other way.

16 Let us adjourn, and we will resume at ten to 1.00.

17 --- Recess taken at 12.26 p.m.

18 --- On resuming at 1.01 p.m.

19 JUDGE ANTONETTI: [Interpretation] Very well. We will now resume.

20 Mr. Withopf, there was something you wanted to say.

21 MR. WITHOPF: Mr. President, for the Prosecution, I wish to make

22 a suggestion. As mentioned earlier on today, so far we have discussed 12

23 or so out of the 50 documents to be discussed. With the current pace,

24 that would mean we would need at least two to three additional full court

25 days to discuss the remaining 30 or so documents.

1 The Prosecution is not really sure whether this is really

2 necessary, and we are not sure whether this is necessary for the following

3 reason: Defence has indicated that they wish to discuss documents and

4 alleged difficulties and problems with such documents by way of example.

5 We had a number of examples, and as it became obvious over the last 30 to

6 45 minutes prior to the break, many of such examples concern the issue of

7 signatures, and I repeatedly mentioned that I do not want to repeat

8 myself, since the Prosecution's point of view has been made very clear in

9 this respect on numerous occasions, as has the Defence point of view on

10 the very same issues.

11 So I'm not really sure whether the very same issues have to be

12 discussed in respect to another 30 or 35 of such documents. It's the

13 Prosecution's view that these documents are admissible. The only issue -

14

15 and it was quite interesting to see that today the key word was "probative

16 value," quite often even in the submission of the Defence - the probative

17 value is a different thing, but the admissibility, I think, it became

18 quite clear that due to the fact the documents are official, very official

19 documents, there's no reason why they shouldn't be admitted. And the

20 Prosecution is again making reference to the manner how the Kvocka Trial

21 Chamber approached this very same issue.

22 I, for the Prosecution, suggest that we may discuss a few more

23 such documents, but I don't see the need to discuss all 50 of them. Of

24 course, I see the point that the Kubura Defence wishes to address a number

25 of documents.

1 It would be also beneficial for the Prosecution to know better

2 sooner than later what the decision of the Trial Chamber would be in

3 respect to the admission of documents for a reason that has already been

4 addressed yesterday: The Prosecution, as mentioned yesterday, will

5 continue to discuss documents with witnesses to come; however, the number

6 of documents to be discussed with such witnesses will certainly depend on

7 the Trial Chamber's decision on the admission of the documents, of all the

8 documents which are currently on the exhibit list.

9 I do not want to mention any practical issues involved, such as

10 the fact that the documents have to be signed in, to be signed out, to be

11 signed in and to be signed out again and again and again, what may touch

12 upon the quality of the originals of the documents.

13 To summarise this, the Prosecution doesn't see the need to

14 continue for additional two to three court days to discuss the very same

15

16 issues, and it became apparent that we reached a point in time where we're

17 just repeating -- Defence is repeating their point of view, we are

18 repeating our point of view; the positions of the two parties are pretty

19 clear.

20 Thank you very much, Mr. President.

21 JUDGE ANTONETTI: [Interpretation] Very well.

22 I will now give the floor to the Defence to comment on your

23 position.

24 The Prosecution has said that given what has been said up until

25 now and on the basis of all the documents that we have examined, the

1 Defence is now in a position to present in a concise manner its case

2 without examining the other documents. And we could then give the floor

3 to Mr. Dixon to comment on the documents that concern Mr. Kubura. This is

4 an approach that we could follow.

5 The Chamber has noted the interest of examining the original

6 documents, which are very telling, and this could have enabled the Defence

7 that perhaps had certain misconceptions with regard to certain problems --

8 this may have permitted the Defence to get a better view, have a clearer

9 idea of the documents. I'm referring to the operational diaries, the war

10 diaries, or the orders that were forwarded via the electronic system in

11 force at the time, or by telex in particular, because I personally think

12 that most of the orders that we have were forwarded by telex.

13 Mr. Bourgon, as far as the Prosecution's idea is concerned, to

14 move on more rapidly, what would you say? We have about one more hour.

15 What is your position? And then I will let Mr. Dixon take the floor.

16

17 Because examining documents has enabled us to clear up certain ambiguities

18 as far as the signatures, stamps, et cetera, are concerned.

19 Mr. Bourgon.

20 MR. BOURGON: [Interpretation] Thank you, Mr. President.

21 As is the case for the Prosecution, the Defence would also like

22 to move on more rapidly in order to save time. Nevertheless,

23 Mr. President, this procedure, wanting to have 650 documents admitted into

24 evidence by simply saying that these documents are relevant, the Chamber

25 won't be in a position to assess the probative value.

1 This causes certain problems, Mr. President: When we arrive at

2 the end of this case, no one doubts that there will be about 50 or 100

3 documents that will be important and relevant and which will really have

4 something to contribute to the outcome of the case in one way or another,

5 but the Prosecution adopts the shotgun approach. One fires at random and

6 we're sure to hit something, but they do this without providing any

7 support for the other documents and leave it to the Trial Chamber to

8 attach weight to these documents, and then they would plead, make

9 submissions, and try to establish links between the documents.

10 Yesterday the Trial Chamber presented the notion of a fair trial.

11 Mr. President, for a fair trial, it's necessary for the Defence to have

12 documents at their disposal. That is in fact the case. Defence also

13 requires sufficient time to examine and to analyse the documents. We have

14 had sufficient time to do so, in particular with regard to the Sarajevo

15 collection. We have had these documents for some time now, for over two

16 years.

17

18 The issue that you raised yesterday, which concerned a fair

19 trial, concerned the opportunity of contesting a document, contesting

20 charges within the framework of an adversarial debate. The Defence's

21 position, Mr. President, is that these documents, the 650 documents, not

22 to mention all the other documents that we have already admitted into

23 evidence - and we have serious reservations about them - but we agreed to

24 have them admitted in order to facilitate the proceedings and so as not to

25 obstruct the proceedings. In our opinion, Mr. President, these documents,

1 when they are not reliable, this has an effect on the relevance and it

2 can't be used for the Prosecution's case. So this is an integral part of

3 the need for a fair trial. Because once documents have been admitted into

4 evidence, they constitute proof, and then anything can happen. It is the

5 duty of the Defence when presenting its case to address each document that

6 has been admitted into evidence because, Mr. President, we do not know

7 what is happening on the other side of the line that we call

8 admissibility.

9 The Trial Chamber will rule, it will assess the documents, and we

10 respect this. But once the documents have gone over to the other side,

11 have crossed the line, then it is our duty to contest these documents

12 officially.

13 We want to save time. We don't want to waste the Trial Chamber's

14 time. But at the same time, there are certain other documents that we

15 would like to deal with. I think I could discuss five or six additional

16 documents, no more, and then we will have used these examples to

17 illustrate our case to the Trial Chamber. But I think it is important to

18

19 do so, Mr. President, because in our opinion the technical difficulties

20 raised are only examples. We believe that afterwards the Trial Chamber

21 should examine each document. The Trial Chamber won't have the originals

22 at that stage, so all the conclusions that we are reaching today, as far

23 as the colours, blue, green, and red are concerned, and the notes

24 contained in the documents, these should be applied to the other

25 documents, because unless the Trial Chamber asks for the originals, it

1 will be very difficult for the Trial Chamber to rule.

2 With your permission, Mr. President, I'll move on to the other

3 documents.

4 JUDGE ANTONETTI: [Interpretation] Just a minute. So you said you

5 would have about five documents.

6 Mr. Dixon, in view of what the Prosecution has said, how many

7 documents would you like to deal with? Because I am keeping an eye on the

8 time. I'm listening to you.

9 MR. DIXON: Thank you, Your Honours.

10 As I said yesterday, Your Honours, we have divided the documents

11 that we contest into a number of categories, and we have prepared under

12 each heading a list of all of the documents, the main documents that

13 affect Mr. Kubura, and that list is available. I can make it available at

14 the end of the hearing today. There are nine categories altogether, with

15 the different documents listed underneath, which fit under each category.

16 All I wish to do, Your Honours, is to use an example from each of

17 those categories, so approximately nine to ten documents. I don't require

18 the originals in the case of every document either; only in the case of a

19

20 few that are allegedly signed by Mr. Kubura. And I have worked out I

21 could do that in about 45 minutes.

22 I would support Mr. Bourgon's submission that he be allowed to

23 continue with a further selection of his documents and perhaps

24 thereafter - it might not be today - but for about 45 minutes to an hour

25 at the beginning of another hearing I could go through these categories.

1 Your Honours did initially set aside, I think, four to five days for this

2 hearing, and we've only had three. So if it was to run over today, I

3 wouldn't need much more time. Perhaps on Monday before General Reinhardt

4 or -- or perhaps before another witness.

5 Thank you, Your Honours.

6 JUDGE ANTONETTI: [Interpretation] Very well. The Trial Chamber

7 will withdraw to deliberate. We'll try to do so quickly.

8 Unfortunately, as the President of the Trial Chamber, I can't

9 control all these practical issues. I would have dealt with them very

10 rapidly. But I have to consult the Judges. Therefore, we will withdraw

11 and we'll be back in a few minutes' time.

12 --- Break taken at 1.16 p.m.

13 --- On resuming at 1.17 p.m.

14 JUDGE ANTONETTI: [Interpretation] We'll now resume.

15 The Trial Chamber has deliberated, and the ruling is composed of

16 two elements: First of all, there's an oral decision. We are requesting

17 that the Prosecution provide us with all the originals of all the

18 documents included on the Prosecution's list. We would like to be

19 provided with all the originals.

20

21 As far as practical issues are concerned, the Prosecution will

22 deal with this issue with the Chamber's legal officer, but the Trial

23 Chamber must be in a position to rule by examining the originals, because

24 this morning we have noted how important the originals are when compared

25 to the copies of these documents. So this is the first part of our

1 decision.

2 The second part of our decision concerns the following: We will

3 allow Mr. Bourgon to illustrate his arguments with the five or six

4 documents he mentioned, and then we will let Mr. Dixon discuss the nine or

5 ten documents he has to discuss. If we do not manage to deal with all

6 these documents, we will continue to discuss the matter on another day,

7 because it is absolutely necessary to engage in an adversarial debate with

8 regard to these essential issues.

9 Mr. Bourgon, without wasting any more time, you may proceed to

10 comment on these five or six documents.

11 Yes, Mr. Withopf, there's something you would like to say?

12 MR. WITHOPF: It's a pure technical matter. The Prosecution

13 would be very grateful if Defence counsel, in particular the Defence for

14 Mr. Kubura, could identify which documents they wish to have discussed in

15 particular.

16 And the second technical issue is in respect to the originals.

17 When does the Trial Chamber expect to be provided with the originals? To

18 sign out about 600 documents from the Evidence Unit takes an incredible

19 amount of time, since 600 accompanying forms have to be filled in to some

20 detail. So it would be very beneficial for the Prosecution to get to know

21

22 as to when the Trial Chamber expects this procedure be done.

23 JUDGE ANTONETTI: [Interpretation] Very well. With regard to the

24 timing, it would be best to do this as soon as possible, naturally.

25 As far as the forms are concerned, you showed us a while ago --

1 Madam Usher, could you obtain an example of one of the documents

2 we have already examined from the Prosecution with these forms, with these

3 examples of signatures.

4 [Trial Chamber and legal officer confer]

5 MR. WITHOPF: Mr. President --

6 JUDGE ANTONETTI: [Interpretation] In the forms, the record of the

7 exhibits, we can see that there is the name, the date of the person it was

8 sent to. We can see the reason, the person who received the document,

9 and we can see a date. As each document has such a form, it's

10 necessary -- it's sufficient for the legal officer of the Chamber to sign

11 and date the document or the registrar to do so, and then the document can

12 be given to the Chamber by the Prosecution. This is not an obstacle that

13 can't be overcome, because you are the custodian of these documents, but

14 given that the Trial Chamber is requesting these documents so that they

15 can be examined, the Trial Chamber would as a result take over the custody

16 of these documents.

17 Mr. Withopf.

18 MR. WITHOPF: This is exactly the point, Mr. President, I was

19 trying to make. In practical terms, and to -- in order to accelerate

20 proceedings, may I please suggest that the Trial Chamber's legal officer

21 gets in direct contact with the Evidence Unit; otherwise, the whole

22

23 procedure would have to be done twice, what would make things obviously

24 more complicated. Thank you.

25 JUDGE ANTONETTI: [Interpretation] Yes, that's quite right. And

1 that would enable us to move on rapidly and to avoid problems with regard

2 to taking over custody of the documents in question. It would also be

3 good if on the basis of these categories Mr. Dixon could inform us of the

4 documents that he wanted to refer to by basing himself on these

5 categories. This would enable the Prosecution to respond to his

6 arguments. But you have time to think about that. You will take the

7 floor a little later.

8 Mr. Bourgon, with regard to the five or six documents you want to

9 discuss, you may proceed. You will inform us of the number; the usher

10 will fetch the document. We will proceed in this manner.

11 MR. BOURGON: [Interpretation] Thank you, Mr. President.

12 I would like to discuss document number 69, and in order to do so

13 I need the original. The only issue that we want to raise, and it's a new

14 issue in relation to the other documents, is the fact that the document is

15 illegible -- a significant part of the document is illegible.

16 JUDGE ANTONETTI: [Interpretation] That's quite correct. The copy

17 that we have is illegible. We'll examine the original to see whether it

18 is also illegible.

19 MR. BOURGON: [Interpretation] Mr. President, I am looking at the

20 original, and it's the same as the photocopy; that is to say, there are at

21 least three paragraphs that are illegible. Although, it might be possible

22 if we use the original to read it. But I note that the translation

23

24 service wasn't able to read the document, to read this part.

25 Our comments are the same, as far as the signature and other

1 details are concerned, that the illegible nature of the document is what

2 is specific to this document.

3 Thank you, Mr. President.

4 JUDGE ANTONETTI: [Interpretation] Thank you.

5 We will examine the document.

6 Thank you. In fact, we note that the first and second paragraph

7 it's been typed. These are typewritten paragraphs. And the typewriter's

8 ribbon must have been deficient. So if we look at the document, if we

9 look through the document, you can see that it was typewritten.

10 Theoretically we might be able to reconstitute the text. If a little

11 effort were made, we could reproduce what the text actually says.

12 As far as the relevance is concerned, given that the Prosecution

13 has produced this document, it's primarily paragraphs 3, 4, and the others

14 that are of interest, and the first two paragraphs are not of great

15 interest to the Prosecution. That would be the conclusion.

16 Mr. Withopf, what do you have to say about this document? We

17 will then move on to the next document.

18 MR. WITHOPF: Mr. President, you already with your comment have

19 pre-empted what I wanted to say. It's obviously the Prosecution's point

20 of view that the portions which are legible are the relevant ones.

21 The document in its legible portions shows that it is an official

22 document. Therefore, the Prosecution doesn't consider the fact that

23 portions which are or may or may not be relevant are not legible. Again,

24

25 I don't think this is an issue for admissibility; again, more for

1 probative value.

2 If one has a close look at the document, it appears to me that it

3 actually is legible. But I'm certainly not going to debate this issue in

4 greater detail. Thank you.

5 JUDGE ANTONETTI: [Interpretation] Very well. We will show this

6 document to the accused. There is just something I would like to point

7 out: This document has a stamp from the 3rd Corps, and below it

8 says "Operational Group Krajina," which shows that the group was part of

9 the 3rd Corps and that there were specific stamps for certain units. This

10 is something that we haven't seen yet. And thanks to the original, we can

11 see that such cases existed. That is why it's important and interesting

12 to see the original documents.

13 Madam Usher, could you show the accused this document.

14 Mr. Bourgon, you may continue.

15 MR. BOURGON: [Interpretation] Mr. President, while the accused

16 are examining the document, in our opinion it's not the assessment of the

17 Prosecution about the relevance of the document; it's the Trial Chamber's

18 assessment of the document that is important.

19 I'll move on to the document -- to document number 71.

20 Mr. President, it's not necessary for me to examine the original document,

21 since the additional remark that I have to make with regard to this

22 document concerns the type of document. This is an authorisation given by

23 Commander Alagic -- that was apparently given by Commander Alagic and was

24 allegedly given to a person called Rasim Razic [phoen], who was

25

1 accompanied by a driver. Perhaps it concerned a laissez-passez, or

2 perhaps it was a matter of granting authorisation to pass between two

3 towns. This was a period for when the laissez-passez was valid.

4 Mr. President, we do not know who the individual in question is.

5 We still have the same problem with regard to the signature. We do not

6 know if the individual received this document or if the document was sent.

7 Likewise, we do not know if use was made of this document, and we have no

8 information about the Travnik firefighting unit. Likewise, we have no

9 information on the civil defence headquarters in Travnik. The document on

10 its own, without any additional supporting material, cannot be used in a

11 useful way by the Trial Chamber unless the Trial Chamber speculates, and

12 for this reason we do not think that the Trial Chamber should admit this

13 into evidence without any supporting material.

14 JUDGE ANTONETTI: [Interpretation] And there is another problem in

15 that the Trial Chamber does not have an English translation of the

16 document at its disposal; all we have is the B/C/S version.

17 Mr. Withopf, you have heard the Defence's arguments concerning

18 the fact that this document relates to an individual whose identity is

19 unknown.

20 MR. WITHOPF: Mr. President, it's correct, there is no English

21 translation in the binder. I'm obviously confronted with the same problem

22 as Your Honours. I, however, still wish to hand over the original, since

23 the Trial Chamber requested to get all of the originals.

24 JUDGE ANTONETTI: [Interpretation] Very well. There are two

25 punched holes on the original, as indicated. It was typewritten. It can

1

2 be seen when you look at the document or through the document. There is a

3 stamp from the 3rd Corps with the "BK" Bosanska Krajina Operational Group.

4 And there is a signature under the name of "Alagic." But before the

5 word "commander," there's also something. There is a number and a date,

6 the date of the 12th of June, 1993. So this is the document as it can be

7 observed by us without any further comment.

8 Madam Usher, please present this document, the original, to the

9 Defence and the accused.

10 MR. BOURGON: [Interpretation] Mr. President, nothing further to

11 add regarding this document. Can this document be used as such without

12 speculating?

13 Thank you, Mr. President.

14 JUDGE ANTONETTI: [Interpretation] Regarding this document,

15 Mr. Withopf, do you have anything to say?

16 MR. WITHOPF: We will certainly provide the Trial Chamber on

17 short notice with a translation of this document. It's obviously a very

18 brief document, so this issue can be dealt with within a reasonable time

19 frame. Otherwise, it's again the issue of signatures, which has been

20 discussed repeatedly. And I'm making reference to what I said earlier on

21 today.

22 JUDGE ANTONETTI: [Interpretation] Very well.

23 Mr. Bourgon, please proceed.

24 MR. BOURGON: [Interpretation] Thank you very much, Mr. President.

25 The next document bears the number 90, whilst the original is

1 being given to me, let me go back quickly on something. Just an

2

3 observation regarding document 79, the one that was illegible.

4 My colleagues tell me of course with a caveat that the three --

5 the first three paragraphs relate to civil protection and also relate to

6 the prohibition of looting. So it looks as if the first three paragraphs

7 are indeed very relevant. And there are many documents of this type that

8 are illegible among the documents proposed by the Prosecution.

9 JUDGE ANTONETTI: [Interpretation] But if you say that this deals

10 with relevant issue, that means that you were able to read illegible

11 documents. So you have an incredible extraordinary faculty, that of

12 reading documents characterised as illegible.

13 You can go two ways: Either the Prosecution will complete the

14 translation of documents, or the Defence will provide the contents of the

15 allegedly illegible documents that you were, however -- paragraphs that

16 you were, however, able to translate.

17 MR. BOURGON: [Interpretation] The same question, Mr. President:

18 If the documents remain as such, the Chamber cannot use it.

19 JUDGE ANTONETTI: [Interpretation] Very well. Next document.

20 MR. BOURGON: [Interpretation] Number 90. It is a diary -- it is

21 a newspaper bearing the title "Patriotski List." It is a newspaper

22 bearing the date of the 30th of November, 1993. It is a publication in

23 which you can find an interview with General Hadzihasanovic, and as

24 reported by this document, the interview is with the general and he speaks

25 about the formation of the army -- or more specifically, of the 3rd Corps.

1 Mr. President, in the Defence view, such a newspaper -- well, we

2 all know what worth or value to give to media productions. They can be

3

4 true or just absolutely untrue. And we argue that all these journals,

5 newspapers, and articles, even if the substance is relevant, must be

6 appreciated through a witness. We must know to what extent or in which

7 way the words were taken by the journalist so as to attach enough

8 reliability so that you can say, "Yes, this is indeed an interview with

9 the accused and we know in which circumstances it took place."

10 Regarding such a document, you really need to have a witness who

11 is going to come and explain in which way and when he met the accused. So

12 this is in a direct connection with the acts and conduct of the accused.

13 And as we said yesterday in our arguments, when the acts and conduct of

14 the accused are involved directly, since here it is him talking, it is

15 basically sort of lending faith to a statement without knowing whether it

16 is a statement and whether its content is true and accurate. So we need a

17 witness.

18 JUDGE ANTONETTI: [Interpretation] We have the original, do we?

19 What do you say, Mr. Withopf?

20 MR. WITHOPF: Mr. President, Your Honours, if I may draw your

21 attention to page 1 of this magazine. At the top right-hand corner,

22 there's the official stamp of the Army of Bosnia and Herzegovina, and it

23 is an official magazine of the 3rd Corps of the Army of Bosnia and

24 Herzegovina.

25 This, Mr. President, Your Honours, is a very typical example of

1 the issue of probative value. Of course the Prosecution shares the view

2 of Defence counsel that a media report can be attached the same high

3 probative value as to a witness testimony or any other document. However,

4

5 there still is a probative value. In particular, in this situation, when

6 the statements made by the accused Hadzihasanovic in the course of this

7 interview are bolstered by other evidence - and the Prosecution would be

8 in a position to do so - this is exactly the document which has been

9 discussed already yesterday. Defence in their 19th of April submission

10 challenged this document amongst other things, because document is

11 external to ABiH 3rd Corps HQ. But I still don't understand if the

12 commander of the 3rd Corps gives an interview, I don't see how this can be

13 external.

14 The accused Hadzihasanovic has provided quite a bit of detailed

15 information about the establishment of the corps and the situation within

16 the first year of the establishment of the 3rd Corps was an issue which

17 has repeatedly been addressed in the course of these proceedings. The

18 document is obviously relevant. The probative value, the Prosecution

19 concedes, may be not as high as other evidence but is certainly not that

20 little that it doesn't reach the threshold of being admitted.

21 In that respect, I may make reference to the approaches taken by

22 other Trial Chambers, which have admitted open-source evidence and have

23 had their views in respect to the probative value.

24 Thank you very much, Mr. President.

25 JUDGE ANTONETTI: [Interpretation] Madam Usher, would you please

1 present these documents to the accused.

2 But it seems, Mr. Withopf -- it seems that there is this magazine

3 and then a list of people. Is the list part of the magazine, as an annex?

4 There may be some mistake in the handling of documents. I'm asking you

5

6 the questions, and I think we should first give you the document so that

7 you give -- you give your view on it.

8 The usher didn't understand, I think. First to the Prosecution

9 and then to the accused.

10 Mr. Withopf, in the original documents, you have the magazine,

11 but there's also a list. I would be very surprised if the list was

12 together with the magazine.

13 MR. WITHOPF: If you, Mr. President, allow me a few seconds to

14 have a closer look at the document, please.

15 [Prosecution counsel confer]

16 MR. WITHOPF: Mr. President, at this junction I can't give you a

17 precise -- unfortunately, I can't give you a precise explanation what's

18 the reason for this situation. It appears to me, however, that due to the

19 fact that the ERN numbers indicate that the two documents weren't found

20 together, that there is obviously some sort of a problem in handling these

21 two obviously separate documents.

22 I will make inquiries and at a later point in time inform the

23 Trial Chamber accordingly.

24 JUDGE ANTONETTI: [Interpretation] Fine. Let us show the accused

25 all of the documents.

1 [Trial Chamber confers]

2 [Trial Chamber and legal officer confer]

3 JUDGE ANTONETTI: [Interpretation] We are going to have to stop.

4 First, Mr. Bourgon.

5 MR. BOURGON: [Interpretation] Just about this magazine. I'd like

6

7 to observe that this is not an official publication of the army or of the

8 3rd Corps. Probably, just judging by the title, it is a publication, a

9 magazine which is from the -- on the same side, as it were, but it is not

10 an official army publication. So this interview boils down to being

11 basically just a statement by the accused, but we need to have the

12 journalist here at the stand, take the stand to confirm that he did carry

13 out this interview, just to confirm the existence of the interview, that

14 it did take place, and then we could see whether we can attach any weight

15 to the document.

16 Thank you.

17 JUDGE ANTONETTI: [Interpretation] Oh, there was one paper left

18 somewhere.

19 Mr. Withopf.

20 MR. WITHOPF: Mr. President, this is a very practical issue. The

21 Prosecution, as probably Defence, would appreciate to get to know as to

22 when the Trial Chamber intends to continue the discussion on the

23 documents, and, of course, the Prosecution would appreciate if Defence for

24 both accused could provide us with their lists about the documents that we

25 discussed at any time the Trial Chamber deems appropriate.

1 It appears to me a bit difficult to continue on Monday morning,

2 since we have the military expert to be heard for the full week. Defence

3 has indicated --

4 JUDGE ANTONETTI: [Interpretation] Yes.

5 MR. WITHOPF: -- that they wish to examine him very extensively.

6 So the Prosecution suggestion would be to only after General Reinhardt's

7

8 testimony to continue with the discussion.

9 Thank you.

10 JUDGE ANTONETTI: [Interpretation] Quite.

11 Mr. Bourgon, how many documents did you have left? We'll have to

12 stop. It's now ten to 2.00. How many documents?

13 MR. BOURGON: [Interpretation] Four.

14 JUDGE ANTONETTI: [Interpretation] Four.

15 Mr. Dixon.

16 MR. DIXON: Thank you, Your Honours. If I may use this

17 opportunity now to hand over our categories of documents so that Your

18 Honours do have this document to take into account, if you are considering

19 the matter over the next while.

20 It goes category by category, and the number used, Your Honours,

21 is the number of the contested exhibit number, the one that appears on the

22 front of -- of each exhibit.

23 Also, Your Honour, to indicate that at the back of this document

24 we have attached the transcript from the 10th of February, 2004, when the

25 Prosecution objected to a document on the basis that it was outside the

1 time frame of the indictment. This is a matter we had raised earlier, but

2 it's not a matter that's been addressed by the -- by the Prosecution as

3 yet. And for the record, to indicate that Your Honours on that occasion,

4 when the Prosecution objected, that document was not admitted into

5 evidence; it was only marked for identification and remains so at the

6 moment.

7 I think there are enough copies for everyone, Your Honours.

8

9 Your Honours, in addition to that, while that is being handed

10 out, we have selected a document or two from each category. The total

11 number of documents that we will need to go through is only ten. And,

12 Your Honour, with your permission, I can now indicate which of those

13 numbers we will be referring to. They are numbers which the Prosecution

14 has already, but we have cut down from the 16 to the 10, and they are as

15 follows: In Category A, it's two documents, number 4 and number 6; in

16 Category B, it's number 8; in Category C, number 37 and 56; in Category D,

17 number 28 has already been referred to by Mr. Bourgon, so there'll be no

18 need to show the document again. All I'll require is to have a short time

19 to make a legal submission on why a witness is required for number 28; in

20 particular, why a witness is required for the war diaries. Number E

21 is 54; category F is 29. On the videos, we referred to an example

22 yesterday, number 409. It's not necessary to refer to it again. So

23 there'll be nothing further on -- on videos. Your Honours will recall

24 number 409 was the one regarding the establishment of the 7th Brigade

25 where the dates were entirely different from the date of the video to the

1 date alleged by the Prosecution in the indictment. Number H is 103; and

2 then the final category, confusing documents. I never addressed Your

3 Honour on this further yesterday, but there are a number of documents

4 where we simply cannot work out how the -- the document relates from one

5 page to the next to the translation, and there are -- there are two

6 examples which we wish to show Your Honours, number 65 and 79, as

7 illustrations, again, of documents which we say cannot be admitted because

8 they just don't make sense on their face.

9

10 Under "Other documents," number 57 is Colonel Stewart's

11 testimony. The Prosecution has withdrawn that exhibit, so if number 57

12 can be crossed out from this list. And number 58 is the Instructions to

13 Muslim Fighters, which I referred to yesterday. There'll be no need to

14 look at this document, but just so Your Honours know that number 58 is

15 that particular document, which we require a witness for.

16 Your Honours might notice that some documents appear in more than

17 one category, because sometimes they are contested on -- on different

18 grounds. But when the examples are referred to, I will explain how they

19 fit into different categories.

20 Your Honours, I would need about 45 minutes to an hour to go

21 through those documents at a -- at a point convenient for Your Honours.

22 JUDGE ANTONETTI: [Interpretation] Thank you very much, Mr. Dixon.

23 So next week we shall start with the expert witness, who's

24 scheduled for the whole week. Should his testimony be shorter; say,

25 should Friday be free, then straight away we could resume the hearing

1 devoted to the documents, and we would give the floor to Mr. Bourgon so

2 that he could present the four or five documents that are still awaiting;

3 and then Mr. Dixon can give us some examples from the various categories

4 using the documents that he gave the numbers of. Following this, the

5 Chamber will issue a decision. But in the meantime, we have decided that

6 we must have the originals, following a procedure which will be agreed

7 between the registry and the relevant services.

8 Before we adjourn, I turn to the Prosecution. Could the

9 Prosecution attempt to set up an overall chart of all the documents? So

10

11 those documents that have been admitted already, those that were admitted

12 by way of a special decision, those being under discussion. But it would

13 be organised chronologically. So you would have the first document in

14 time up to the last document in the time frame, so that we have a full

15 list but a chronological list with all the documents.

16 Let me give an example: Let us assume that there is among all

17 documents a first document dated June 1992, say. Then this document would

18 be the first one. And the last one in the list would be dated March or

19 April 1994. In this way, we would have the documents in their

20 chronological order. Because you will have noticed that we have documents

21 in folders admittedly, but there is no chronological order. Of course,

22 this is going to represent quite a bit of work for the Prosecution,

23 because they will have to disorder all the documents to have this list in

24 chronological order. It hasn't been done so far, but it would be useful

25 to have such a list.

1 You have given us the events in chronological order; all the

2 parties have received it. It would be good to have the same for the

3 exhibits. And you could have a star, asterisk, for the 56 or so documents

4 that are being contested. Or 650.

5 Would that be a problem for the Prosecution?

6 MR. WITHOPF: Mr. President, this will certainly be not a problem

7 for the Prosecution. Such a list can be provided on short notice and

8 within a reasonable time frame. Thank you.

9 JUDGE ANTONETTI: [Interpretation] I'm sorry for the interpreters

10 and the whole staff that had to stay and work overtime. We are going to

11

12 adjourn, and I do hope to find you back here on Monday. Tomorrow is a

13 public holiday, as you know, and then we have the weekend. So we shall

14 resume our work with the expert witness on Monday at 4.00. Thank you --

15 2.00.

16 THE INTERPRETER: Interpreter's correction: 2.15.

17 --- Whereupon the hearing adjourned at 2.00 p.m.,

18 to be reconvened on Monday, the 3rd day of

19 May, 2004, at 2.15 p.m.

20

21

22

23

24

25