1 Thursday, 2 June 2005
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 9.04 a.m.
5 JUDGE LIU: Call the case, please, Madam Court Deputy.
6 THE REGISTRAR: Good morning, Your Honours. This is case number
7 IT-01-48-T, the Prosecutor versus Sefer Halilovic.
8 JUDGE LIU: Thank you very much.
9 Good morning, ladies and gentlemen. After the untimely
10 resignment of Judge Szenasi, the President of this Tribunal assigned
11 Judge Mumba as a Judge in this proceedings. Judge Mumba began her
12 function last Monday and she will not be able to attend this hearing, so
13 in accordance with the Rule 15 bis, the remaining Judges decided to
14 continue our proceedings.
15 This hearing is in accordance with the decision on the parties'
16 request regarding the deposition evidence of one witness rendered by this
17 Trial Chamber on the 12th of May, 2005. In general, the Trial Chamber is
18 reluctant to grant the recalling of a witness who has provided testimony
19 by way of deposition for the reason that a party has failed to ask
20 questions which may prove important to its case. However, the Trial
21 Chamber believes the witness is an individual mentioned in the allegation
22 of paragraph 10 of the indictment and as such could have specific unique
23 knowledge as to that particular allegation in the indictment and his
24 evidence in this respect may prove to be pivotal evidence in this case.
25 So we decided to ask him some questions.
1 The purpose of questioning by the Judges will be limited to the
2 allegation in the paragraph 10 of the indictment, and after that both
3 parties may raise some questions, but also in the scope of the paragraph
4 10 of the indictment.
5 Well, could we connect with the witness, please.
6 [Witness testified via videolink]
7 JUDGE LIU: Good morning, Witness. Can you hear me?
8 THE INTERPRETER: The interpreters can't hear the witness.
9 JUDGE LIU: Yes. We have some technical problem.
10 Good morning, Witness. Can you hear me?
11 THE WITNESS: [Interpretation] Yes, I can. Very well, in fact,
12 Your Honour. Good morning.
13 JUDGE LIU: Good morning. Would you please make the solemn
14 declaration in accordance with the paper Mr. Usher is showing to you.
15 THE WITNESS: [Interpretation] I solemnly declare that I will
16 speak the truth, the whole truth, and nothing but the truth.
17 JUDGE LIU: Thank you very much.
18 WITNESS: VEHBIJA KARIC
19 [Witness answered through interpreter]
20 JUDGE LIU: Well, before we have the questions, I would like to
21 remind you the Rule 90(E).
22 MR. MORRISSEY: Your Honours, I'm sorry. It's been indicated to
23 me that the accused, Mr. Halilovic, cannot hear anything at the moment.
24 [Trial Chamber and registrar confer]
25 MR. MORRISSEY: In particular, he's unable to hear Mr. Karic.
1 JUDGE LIU: Well, I have been advised that there's some technical
2 problem at this stage, so we have to take a break for about 10 minutes,
3 and we'll resume at 20 past 9.00.
4 --- Break taken at 9.09 a.m.
5 --- On resuming at 9.34 a.m.
6 JUDGE LIU: Well, Witness, I believe that I have to apologise to
7 you for the delay. Are you ready to continue?
8 THE WITNESS: [Interpretation] Yes, I am ready.
9 JUDGE LIU: Mr. Halilovic, can you hear the proceedings in a
10 language that you understand? No?
11 THE ACCUSED: [Interpretation] Your Honour, I hear the
12 interpreter, but I do not hear the witness.
13 JUDGE LIU: I see. Maybe there's some problem with the channel?
14 [Trial Chamber and registrar confer]
15 JUDGE LIU: Yes. Let's try it again, to see whether you could
16 hear him or not. If not, please let us know as soon as possible.
17 You may sit down, please.
18 THE ACCUSED: [Interpretation] Thank you, Your Honour.
19 JUDGE LIU: Well, Witness, at the very beginning I have to remind
20 you the Rule 90(E) of the Rules of Procedure and Evidence, that you have
21 the right to object to making a statement which may tend to incriminate
22 yourself. But that Trial Chamber may, however, compel you to answer the
23 question. That testimony so compelled shall not be used as evidence in a
24 subsequent prosecution against you for any offence other than the forced
25 testimony. Do you understand that?
1 THE WITNESS: [Interpretation] Yes. Yes, Your Honour, I
2 understand completely.
3 JUDGE LIU: Thank you.
4 Questioned by the Court:
5 JUDGE LIU: Well, Witness, could you please tell us your full
6 name, please.
7 A. My name is Vehbija Karic.
8 JUDGE LIU: And when do you think you were born?
9 A. I was born on the 21st of April, 1938 in Podgrad, municipality of
11 JUDGE LIU: And were you in the Yugoslavia People's Army at the
12 very beginning?
13 A. Yes. I was a member of the Yugoslav People's Army. I was an
14 officer. I was a colonel by rank in the former JNA.
15 JUDGE LIU: And when did you join the ABiH?
16 A. I became a member of the ABiH on the 8th of April, 1992, after I
17 left the JNA.
18 JUDGE LIU: And when did you --
19 A. On that day I joined.
20 JUDGE LIU: And when did you retire from the army?
21 A. I retired in late May 1996.
22 JUDGE LIU: And with what rank?
23 A. With the rank of army brigadier of the Army of Bosnia and
25 JUDGE LIU: Thank you. During which time have you been in
1 Grabovica? Could you give us the date of arrival and departure, if
3 A. This was at the beginning of September. I will look up the exact
4 date in my diary. In early September 1993.
5 JUDGE LIU: And what's the departure time? Or how long did you
6 stay in Grabovica?
7 A. How long did I stay in Grabovica? I was there less than an hour
8 with a group of people who looked around the -- we were there on two
9 occasions expecting the arrival of the units from Sarajevo. We decided
10 to accommodate those billets because Jablanica was overbooked by refugees
11 from Prozor and that part of Herzegovina. We had problems with
12 accommodation, so we decided that some of those units should be billeted
13 in Grabovica. Rifat Bilajac was with me at the time, as well as Zicro
14 Suljevic, Namik, and we went around to see the inhabitants of the
15 village, asked them whether they had enough space in their houses to
16 receive a number of soldiers for a brief period of several days. They
17 told us that there was no problem, that they would accommodate them in
18 one room. These were usually elderly people, husbands and wives. There
19 were also some younger people from Konjic who had come to be with their
20 relatives, but mostly all of them agreed.
21 After that, the units were billeted there. After 24 hours, after
22 one night spent in Grabovica by those units, we came to see them the next
23 day to see if there were any problems, and so on and so forth. So I was
24 there on two occasions with a group of people from the inspection team
25 when we went to review the situation regarding their accommodation, the
1 accommodation of the units. I think that this was on the 7th or the 8th
2 of September, this second time, after one night in Grabovica, after they
3 had spent one night in Grabovica.
4 JUDGE LIU: Yes. In your answer, you said that "So we decided
5 that some of those units should be billeted in Grabovica." Would you
6 please be more specific to tell us who are "we." Are they members of the
7 inspection team?
8 A. Yes, precisely, members of the inspection team. Rifat Bilajac,
9 Zicro Suljevic, I myself, and Namik Dzankovic went to see if it was
10 possible to billet the troops there the day before, and then after
11 spending one night there - I think that this was on the 8th in the
12 morning, on the 8th of September -
13 JUDGE LIU: And how about --
14 A. -- when we visited.
15 JUDGE LIU: I'm sorry. How about Mr. Halilovic? Did he go there
16 with you?
17 A. Mr. Halilovic? No, he didn't. He wasn't in Jablanica at the
18 time. He was somewhere out in the field. And we did that without his
19 physical presence, which was normal and in keeping with the idea of
20 billeting the troops for the forthcoming operation, when we were
21 coordinating the combat activities.
22 JUDGE LIU: Did you meet -- did Mr. Halilovic involved in the
23 decision of billeting the soldiers in Grabovica?
24 A. I think that he found out about it indirectly and that objective
25 was to billet the people so that they could rest after arriving from
1 Sarajevo following a march, which was quite tiring. These people needed
2 to be accommodated. And in general, the area in Jablanica was overbooked
3 with refugees and we didn't have much logistics resources. We didn't
4 have accommodation in tents or bivouacs. As far as the measures that
5 some other army might have taken which would not be in such dire
6 circumstances as we were concerning materiel and logistics, in order to
7 accommodate troops outside of inhabited areas, we had to do it this way.
8 Before that, we got the consent of the inhabitants that there would be no
9 problems and that they agreed to billet the people. To this very day I
10 am not sure whether Sefer Halilovic knew or not about this minor detail,
11 but we were the ones who were actually considering this problem. Those
12 days he was absent, he was touring, he was in Sarajevo, Konjic, and in
13 other places in the area of preparation of troops for the forthcoming
15 JUDGE LIU: And during your stay in Grabovica, in your testimony
16 you told us that you stayed one night there. And where did you stay that
17 night in the village?
18 A. I didn't say that we spent the night there but that the troops
19 were billeted on the night of the 7th and the 8th in the village of
20 Grabovica. These were units of the 9th Mountain Brigade and a part of
21 the 10th Mountain Brigade as well as a smaller group from Solakovic's
22 battalion. We billeted them there. We were there in conversation the
23 day before the troops were going to arrive. I think that this was on the
24 7th. Before the troops arrived, we talked with the inhabitants of
25 Grabovica and reached an agreement with them that they had nothing
1 against receiving this number of soldiers to spend the night there, and
2 then we returned to Jablanica, where we continued with our activities.
3 The next day, on the 8th --
4 JUDGE LIU: In the --
5 A. -- we as a group went to visit. We as a group went to visit
6 Grabovica. We were driven by Huso Alic. Rifat Bilajac, Zicro Suljevic,
7 I was there, my son with there as an escort, and Namik Dzankovic as
8 security officer were in this group. This was the inspection team. We
9 stayed with the inhabitants and we were in conversation with them, the
10 ones who had received soldiers to stay the night with them, and we asked
11 the soldiers if they had rested well, how they felt, if there were any
13 After an hour, in our view there were no problems. The soldiers
14 were received well. They were in a good mood. They had slept well after
15 a tiring march to reach that place. Some of them were actually fishing.
16 Some had lit a fire and they were barbecuing something around those
17 fires. In any case, the mood was as if it was a picnic. There were no
18 problems at all. And after about an hour, we returned to Jablanica to
19 continue with our further activities.
20 JUDGE LIU: Yes. In your testimony, you said that "There were
21 units of the 9th Mountain Brigade." Is it 9th Mountain Brigade or 9th
22 Motorised Brigade?
23 A. The 9th Mountain Brigade, commanded by Celo.
24 JUDGE LIU: Well, you -- in your testimony, you also said that
25 you had an opportunity to talk to the soldiers, if they had rested well.
1 Do you know who are those soldiers and which units they were from?
2 A. It is hard for me to answer if I know which soldiers they were
3 because when we saw them, they happened to be in the yard in front of the
4 house where they happened to be, and we would stop as our group -- as a
5 group, this group that was in the vehicle. We would stop and for a
6 moment we would ask them if they had a rest, if they slept well, if there
7 were any problems, was everything all right. Everything was all right.
8 And then we went on from house to house, so that then we actually went to
9 the yards of all the inhabitants asking if there were any problems.
10 There were none. I don't know if these were only soldiers of the 9th
11 Brigade or the 10th Brigade - I can't really say, but both were in that
12 particular area - who came up to us or whom we approached and had this
13 contact with.
14 JUDGE LIU: Did you see or meet Mr. Halilovic during your stay in
16 A. No. No. Halilovic wasn't with us in Grabovica, not when we went
17 to see if it would be possible to billet the troops there or afterwards.
18 He wasn't in Jablanica during that particular period, those few days.
19 JUDGE LIU: Now I will pass the questions to Judge El Mahdi and
20 Judge El Mahdi will continue to ask you some questions.
21 JUDGE EL MAHDI: Thank you, Mr. President.
22 [Interpretation] Witness, I would like to ask a few questions from you
23 concerning your deposition. You said that Mr. Halilovic - I quote you --
24 [In English] "found about it indirectly." [Interpretation] And you speak
25 of the question of the troops being billeted with civilians. So could
1 you explain your answer, if you please. What do you actually mean when
2 you say he was indirectly made aware?
3 A. As part of our previous contacts with Halilovic, I remember that,
4 amongst other things, we talked about the question of billeting the units
5 coming from the area of Sarajevo. Those people needed to be accommodated
6 so that they could rest. I cannot say. I'm not sure if it was said in
7 his presence at the time that these people would be billeted in the
8 village of Grabovica because a number of the fighters we accommodated in
9 Gornja Jablanica in some prefabricated houses or huts, also with the
10 civilian population, and there were no problems at all.
11 And specifically when the crime happened on the 9th -- of the 8th
12 to the 9th of December, when we informed Halilovic about it the next day,
13 on the 10th, even though Namik Dzankovic told him about it in Jablanica
14 once he returned from the field on the 9th in the evening, it's possible
15 that he understood then that a part of the 9th and 10th Brigade units and
16 those of the Independent Battalion were billeted in the village of
17 Grabovica. We thought that this was normal. The people needed to be
18 accommodated. This was not something that was done by force, forcibly
19 billeting these people into somebody's -- in somebody's apartments. We
20 asked the people if they wanted to receive them. The houses were usually
21 larger, occupied by one or two elderly people as a rule. There were also
22 barns. There were other farm buildings. And there was no problem facing
23 us. We asked them properly would it be possible to accommodate these
24 people, and they all agreed to that, without a problem.
25 So I personally think that Sefer found out about this event
1 specifically, that the units were billeted in Grabovica, only after
2 learning about an information about the crime that occurred in the night
3 between the 8th and the 9th of September.
4 JUDGE EL MAHDI: [Interpretation] Yes. I'll put to you another
5 question: This question of billeting of the troops, was that within the
6 purview of the inspection team?
7 A. Once we left Sarajevo, when we received our assignment to
8 coordinate combat operations and some other activities relating to the
9 subordination of the commands of the 4th, 3rd, and 6th Corps, felt it was
10 normal, since we were out in the field anyway and we were given these
11 assignments, that it was normal also to deal with the billeting issue of
12 the people who were going to be placed at our disposal.
13 JUDGE EL MAHDI: [Interpretation] What was the role of the leader
14 or chief of this inspection team? Were you responsible for taking
15 decisions without his agreement, without his consent?
16 A. Well, the authority to coordinate combat operations and do our
17 job regarding coordination in the Neretva 93 operation from the point of
18 view taken at the time, which was before the crime occurred and before
19 the units did what they did against those civilians who had put them up
20 in their own homes and gave them an opportunity to rest, it would have
21 been logical to expect that nothing like that would happen, particularly
22 not with people who had arrived from Sarajevo. The syndrome that
23 prevailed in Herzegovina among the fighters - because this had been
24 preceded by a series of clashes between the HVO and our army - did not
25 apply in Sarajevo. In Sarajevo there was still an atmosphere of unity
1 between us and the HVO. Even less could we have expected to see this
2 done by troops who had been brought in from Sarajevo. They were not
3 encumbered with the deteriorating relations in Herzegovina as it were,
4 and this was definitely not something that we could expect.
5 Even as we speak, I still believe it was perfectly natural for us
6 to find accommodation for those people, since we were the inspection team
7 in charge of coordination. This was an issue that -- that it was down to
8 us to deal with. We weren't only meant to coordinate combat operations
9 but also to create the prerequisites in order to have any sort of
10 coordination at all, to bring the units there and to get them ready for
11 any upcoming combat operations. Even as we speak, I still believe that
12 was the natural thing to do.
13 JUDGE EL MAHDI: [Interpretation] Yes. But it was another
14 question I was asking from you. My question related to the
15 responsibilities, the competencies of the inspection team and the duties
16 and competencies of the chief of this inspection team. And a decision,
17 if it belongs to the competence of this team, was it logical or did it
18 conform to military necessities if it was taken without the approval or
19 without the knowledge of the leader of the team? That is, you took this
20 decision by yourself without putting him on notice, without letting him
22 A. Your Honour, we, as an inspection team, believed at the time that
23 it was perfectly logical that a number of tasks, given our experience and
24 our knowledge as long-serving officers in a more general context were to
25 be assumed by us and that there was no need to go and look for Sefer, who
1 wasn't present when the units arrived. We needed to put them up, and the
2 general idea was to find accommodation for the units, to give them an
3 opportunity to rest so that they could be ready for the upcoming combat
4 operations. We did not see this as an act of insubordination, and this
5 was certainly no slight to his position as the Chief of Staff of the
6 Supreme Command.
7 JUDGE EL MAHDI: [Interpretation] Very well. Now, another
8 question: Were you aware of any complaint during your stay or passage in
10 A. You mean as a group as we were touring the area?
11 JUDGE EL MAHDI: [Interpretation] No, when you were in town, when
12 you were going through Grabovica, when you were in Grabovica. Because if
13 I understand you well, you went twice to Grabovica, on two occasions. So
14 for the moment I'm talking about the second time. Was there no complaint
15 made by the citizens or by the troops concerning the behaviours or the
16 relationship between the troops and the citizens of the city?
17 A. Your Honour, there were no complaints or negative connotations.
18 It was a run-of-the-mill situation where we asked the soldiers whether
19 they'd had a good rest, and the same applied to the locals. There was no
20 friction, no negative atmosphere. There was nothing for us to be
21 concerned about. We would go from house to house. We would meet a group
22 of soldiers each time who happened to be in front of a given house. This
23 was --
24 JUDGE EL MAHDI: [Interpretation] Do you have -- you have yourself
25 discussed the matter with inhabitants, with the citizens of this town?
1 A. Yes. I personally discussed the matter with the locals and with
2 the soldiers. I asked them whether they'd had a good rest, whether there
3 were any problems. There was no sign of friction, no sign of discontent.
4 It all seemed perfectly normal. An hour later we completed our visit and
5 we drove back to Jablanica believing that there was no cause for concern,
6 that everything was all right. There were no problems whatsoever. At
7 least, there hadn't been up to that point.
8 JUDGE EL MAHDI: [Interpretation] Right. Now, you're speaking
9 about this as if it had been a necessity for the troops to be billeted in
10 this city, in this town, that there was no other solution or possibility.
11 Was that true? Was it the case?
12 A. If we had known, if we had been able to assume that this would
13 happen, we would never have allowed it. Even if the soldiers had to
14 sleep rough.
15 JUDGE EL MAHDI: [Interpretation] No. First of all, did this
16 happen before the incident? Did it happen that the troops would be
17 billeted with civilians of another ethnic group, or was it the very first
18 time that this happened?
19 A. There were Croats in Jablanica, Croats who lived there at the
20 time in and around Jablanica. Specifically, the inhabitants of Grabovica
21 were consulted. They behaved in a natural way and thought it was all
22 right to put the soldiers up. We, as an inspection team, faced an
23 insurmountable difficulty, given the number of refugees in the area,
24 Jablanica being absolutely overcrowded with refugees flooding in from the
25 surrounding areas where Muslims had previously been expelled from their
1 homes. So they all converged in Jablanica, which as a result was heavily
2 overcrowded. Had it not been for this situation, we certainly would not
3 have remained adamant that these soldiers should be accommodated in
4 Grabovica. We simply lacked logistics to do anything else. We had no
5 tents, no equipment, nothing we could use for these soldiers to set up
6 camp. On the other hand, they needed rest after a long and strenuous
7 march and we couldn't just let them sleep rough with no roof over their
8 heads. And this is what led us to decide to find accommodation for them
9 in Grabovica.
10 But one thing is certain: We never expected that what eventually
11 happened would ever happen.
12 JUDGE EL MAHDI: [Interpretation] This is my last question. It
13 has to do with -- do you remember when you made your decision to billet
14 the troops in Grabovica, was this decision forwarded by whatever means to
15 the chief of the inspection team? Was he informed?
16 A. Knowing that the units from Sarajevo would arrive and knowing
17 their numbers, which was about 200 men, having got in touch with the
18 Municipal Staff in Jablanica, having been aware of the situation there,
19 that Jablanica was overcrowded and that accommodation was short, several
20 days prior to their arrival we concluded that we should go to Grabovica.
21 We concluded that we should try and find a solution together with the
22 local inhabitants, to ask them to put the soldiers up for one or two
23 nights so they could get a rest before the operation commenced.
24 JUDGE EL MAHDI: [Interpretation] And the chief of this inspection
25 team, was he made aware of this decision? Was he told?
1 A. Your Honour, Your Honours, Honourable Chamber, I can't say that
2 he was informed specifically about this one decision, because the person
3 we are talking about, the Chief of Staff of the Supreme Command, Sefer
4 Halilovic, was outside Jablanica at the time. He wasn't present. But it
5 was very much in keeping with the overall idea, and as a team we had to
6 deal with it. We believed we were not doing anything that was not
7 allowed. This was part of our competencies, that we were a team meant to
8 coordinate combat operations and deal with certain problems. I'm not
9 sure I'm making myself perfectly clear, am I?
10 JUDGE EL MAHDI: [Interpretation] No. The question is to know
11 whether according to the military structure a leader of a team is
12 normally put on notice of any decision which is made within the team.
13 Isn't it the case?
14 A. That is certainly the case. However, this is a minor detail
15 which after the incident was transformed into something really important,
16 after the crime had occurred. But as we were still preparing the
17 operation, there was no way we could know what would happen to the people
18 in Grabovica and we had no time to go round and try to track down the
19 chief, who was elsewhere going about his own business. This was a
20 routine matter for this to be set up.
21 JUDGE EL MAHDI: [Interpretation] Thank you very much, Witness.
22 Thank you.
23 A. [Previous translation continues] ... that's happened.
24 JUDGE EL MAHDI: Thank you, Mr. President.
25 [Trial Chamber confers]
1 JUDGE LIU: Well, are there any questions by the parties at this
3 Yes, Ms. Chana.
4 MS. CHANA: May it please Your Honours. Just a few questions.
5 Examined by Ms. Chana:
6 Q. Good morning, Mr. Karic. I'm Sureta Chana. I'm counsel for the
7 Prosecution. I'll ask you a few questions, if I may.
8 In -- in response to Their Honours' question --
9 A. Good morning to you.
10 Q. -- to you in respect of billeting of the soldiers, did Sefer
11 Halilovic ever tell you not to billet the soldiers with civilians?
12 A. We didn't discuss this matter in detail at the time. We tried to
13 carry out our tasks in keeping with the general idea and with the order
14 that had already been written. We believed that it was a routine matter
15 that we had to deal with. When I say "we," I mean the inspection team.
16 We didn't think it necessary to go back to the chief for every single
17 thing, for every little thing, because he was elsewhere. He was not in
19 Q. Yes. But what about before the soldiers went to Herzegovina and
20 the meeting that you alluded to when His Honour Judge Liu asked you that
21 you had a meeting before about the billeting of the soldiers with Sefer
23 MR. MORRISSEY: Well, Your Honours -- sorry. Perhaps -- I'll let
24 my friend finish the question before I object.
25 JUDGE LIU: Yes.
1 MS. CHANA:
2 Q. What was discussed at this meeting when it did come to billeting
3 of soldiers? Because it's an obvious question which would have been
4 raised. Could you tell us?
5 JUDGE LIU: Yes.
6 MR. MORRISSEY: All right. Well, perhaps before the witness
7 answers, I object to that.
8 Your Honours, the leave granted by this Chamber is very confined
9 to specific matters. That's what we're all prepared for here. This
10 question offends in two ways: First of all, the witness has given
11 general evidence concerning this matter; but secondly, it doesn't concern
12 paragraph 10 of the indictment. Your Honours have given us a very
13 precise range for our questions. I'll be bound by it too, of course.
14 But my learned friend is. And to go to the content of meetings on
15 previous occasions seems to me and in my submission is plainly outside of
16 the leave that you have granted. So I object to that question.
17 JUDGE LIU: Well, I also have some problem with this question,
18 that is, about that meeting. It's not specific enough. You know, which
19 meeting you refer to in this situation.
20 Ms. Chana.
21 MS. CHANA: Your Honour, in response to your question, you said
22 -- he said there was a meeting where these things were discussed, and I
23 was just trying to clarify. And perhaps I could ask the witness: Was
24 there such a meeting? Because he did say that before there had -- this
25 had been discussed. This -- this is in response to your question.
1 Your Honour, I'm merely asking questions which arise out of Judges'
3 JUDGE LIU: Well, I'll give you some leeway in this aspect and to
4 see how far we could go.
5 MS. CHANA: Thank you, Your Honours.
6 Q. Mr. Karic, was this ever discussed, the question of billeting
7 soldiers when they would reach Herzegovina, at any meetings prior to the
8 soldiers leaving from Sarajevo?
9 A. I understand your question. There were a number of practical
10 matters that we had to deal with. One of them, as I've mentioned, was
11 the matter of finding accommodation for the units, of creating propitious
12 conditions in Jablanica for the troops to rest. We, as the inspection
13 team, were every day at the forward command post. This is what we used
14 to call it at the time, and this was at the hydro power plant in
15 Jablanica. There was a building there. And before we arrived, the
16 Municipal Staff used to be in that building. They gave us two offices to
17 use so that we could go about our daily tasks. It was in those offices
18 that we were in touch on a daily basis. We knew that there were units
19 arriving from Sarajevo and we made the decision. If Sefer was there or
20 if he was not there several days previously is not something that I can
21 say, but we believed this to be a perfectly natural decision at the time.
22 That was what we believed before the crime happened.
23 Q. Yes. Nevertheless, Mr. Karic, the question is really quite
24 simple. Was this discussed, the billeting of the soldiers, prior to
25 their billeting with Sefer Halilovic?
1 MR. MORRISSEY: Well, Your Honour, there's two objection. That
2 wasn't the question. If you look and see what was asked before, it
3 wasn't that. And secondly, my friend is not to cross-examine. Now, Your
4 Honours granted some leeway, but I'd submit this has now gone far enough.
5 An answer has been gained to the question. It's clear what the sense of
6 that answer is. Now, I'd submit that's enough and I object to this
7 question on specific and general grounds.
8 JUDGE LIU: Yes, Ms. Chana, you could ask a question for the
9 clarification concerning this witness's testimony of that meeting, but
10 not a kind of umbrella question trying to seek some evidence before the
11 billeting of the soldiers in Grabovica.
12 MS. CHANA: Yes. Thank you, Your Honour.
13 Q. Perhaps I'll put it this way, Mr. Karic: Did Sefer Halilovic
14 ever ask you where the soldiers were to be billeted when they reached
16 MR. MORRISSEY: Well, just a moment. I --
17 THE WITNESS: [Interpretation] No.
18 MR. MORRISSEY: I want to -- that question. If the witness could
19 just excuse me.
20 This question has got an assumption built into it which is not
21 legitimate given the evidence of the witness. The question asks -- the
22 question presumes that Sefer Halilovic knew that these troops were going
23 to Grabovica. If you see there the specific word "Grabovica" is used.
24 Now, the evidence of this witness is quite clear about that, and this
25 question is illegitimate because it's got a presumption built in that's
1 not only one that the witness hasn't agreed to but it's one that the
2 witness has positively said is not correct.
3 JUDGE LIU: Yes. But, however, the witness has already answered
4 that question. We'll adjust, you know, these questions and answers,
5 taking into consideration of your objections.
6 MR. MORRISSEY: As the Court pleases.
7 JUDGE LIU: You may proceed, Ms. Chana.
8 MS. CHANA: Yes.
9 Q. Mr. Karic, would you please answer that question.
10 MR. MORRISSEY: He has.
11 JUDGE LIU: As I said, he has already answered that question.
12 You'll find it in the transcript.
13 MS. CHANA: Yes. Thank you, Your Honour.
14 Q. Now, in response to Judge Liu's question, you -- you said there
15 was -- soldiers had been billeting in Gornja Jablanica with civilians
16 prior to these soldiers being billeted in Grabovica. Was Sefer Halilovic
17 aware of this billeting in Gornja Jablanica, to your knowledge?
18 A. In principle, yes, to the extent that he would have had to know,
19 being the head of the team. We had to find accommodation somewhere, and
20 I told you about the area being overcrowded, about Jablanica being
21 overcrowded, and I've explained why.
22 Q. Were there civilians in Gornja Jablanica?
23 A. There were civilians residing there, refugees too, locals.
24 Wherever we could, we used the area to find accommodation for elements of
25 the 10th Brigade, Caco and Topalovic's -- Caco Topalovic's brigade in the
1 Gornja Jablanica area. This was perfectly natural to have people rest
2 for a night or two so they didn't have to sleep rough, and there was no
3 problem with that at all.
4 Q. So is it your evidence, Mr. Karic, that you were not ordered by
5 Sefer Halilovic in any way, manner, or form to billet these soldiers?
6 MR. MORRISSEY: Well, Your Honours, again that's cross-examining.
7 Again, it's been answered on numerous occasions. And this is not
8 permissible, in my submission.
9 JUDGE LIU: Yes. I believe that this question has been asked and
11 MS. CHANA: Thank you, Your Honour.
12 Q. I will -- I will now take you to another subject, Mr. Karic. You
13 said you went to Grabovica on one day before and one day after. Now, can
14 I ask you: When you went to Grabovica after the soldiers had already
15 been billeted there, where is it that you went, location-wise?
16 A. As I said a while ago, the composition of the group was what it
17 was, and I told you also who drove us to Grabovica, where the previous
18 day we had consulted the Croat inhabitants and had obtained their
19 approval to have the soldiers billeted there. We visited all the houses,
20 starting with the ones next to the railway station and those just across
21 the bridge near the Grabovica hydro plant, and the last houses were the
22 last houses in the village, several hundred metres down the Neretva
24 Q. Did you ever have a meeting with the soldiers as a group, or was
25 it just individual -- going to individual houses?
1 A. If I understand you correctly, the soldiers were never lined up.
2 We believed that this was perfectly natural. We were a group. We were a
3 inspection team. We went around together. We inspected houses and we
4 visited all the groups of soldiers who had spent the night there and who
5 were in the yards in front of the houses. We also talked to those locals
6 who had offered their hospitality. We talked to both, and neither seemed
7 to have any problem at all. Everybody seemed happy, the soldiers and the
8 local residents alike.
9 An hour later, roughly speaking, we visited the last house and
10 the last group of soldiers that were still around, after which we drove
11 off to Jablanica.
12 Q. Mr. Karic, I want to be quite clear about this. Are you saying
13 you just -- you visited groups of soldiers, or was it one meeting with a
14 -- with a group of soldiers?
15 MR. MORRISSEY: Your Honours, that is a second try, I would say a
16 third try, at the same issue.
17 JUDGE LIU: Well, I don't think the witness answered that
19 MR. MORRISSEY: Well --
20 JUDGE LIU: We -- here we just want to know -- I believe the
21 Prosecution wants to know whether there's a get-together of the soldiers,
22 whether the witness addressed the soldiers or not.
23 MR. MORRISSEY: Well, Your Honours, look, if it assists the Trial
24 Chamber, I won't object to it, frankly.
25 JUDGE LIU: Yes. Thank you very much.
1 MS. CHANA: Thank you, Your Honours.
2 Q. Mr. Karic, did you address the soldiers as a group, one big
4 A. There was no particular address. This was a normal, human,
5 soldierly talk. We greeted the groups that were in front of the houses
6 that had stayed there, that had spent the night there, that were resting,
7 sitting outside. It was nice weather. I recall that it was sunny. And
8 we went like this from house to house, from group to group. But there
9 was no gathering of soldiers or any kind of meeting, or there was no
10 particular address to the group. We had -- I had people from the
11 inspection team together with me, Zicro Suljevic, Rifat Bilajac, Namik
12 Dzankovic. We didn't separate. We walked together shoulder to shoulder
13 from group to group, from house to house. We didn't encounter any
14 problems that would intrigue us so that we would go into any kind of
15 meeting that would call for resolution of any kind of problem. There
16 were no questions either. Everything was normal. Everyone was
17 satisfied, one side and the other. And I am repeating this. Who knows
18 how many times over can you not believe honourable people who spent their
19 whole lives in an honourable way who were with me shoulder to shoulder,
20 than some asocial types who provided statements that I said that if there
21 were any problems, you can kill them and throw them into the Neretva
22 River. Two or three asocial drugged persons are believed who [as
23 interpreted] committed those crimes and not people who went with me, who
24 are honourable generals of this army and have for their whole working
25 lives lived honourably as men. This is something that I am surprised at,
1 that I wonder about.
2 Q. So you do not make any such utterances as you have just alluded
3 to in your answer, that people who do not give hospitality, you can kill
5 MR. MORRISSEY: Well, Your Honours, again, I object. Firstly,
6 he's made that absolutely clear. Absolutely clear.
7 Secondly, it's cross-examination, once again. And so I object.
8 JUDGE LIU: I think this issue is very clear --
9 MS. CHANA: Yes, Your Honour.
10 JUDGE LIU: -- Ms. Chana. Maybe you could ask a question to make
11 sure Mr. Halilovic was not with the group.
12 MS. CHANA: Yes, Your Honour. I believe Judge El Mahdi asked
13 that question, but I will certainly ask it again.
14 Q. Mr. Karic, was Sefer Halilovic present at this time that you were
15 going from this group to group of soldiers in Grabovica?
16 A. No, Sefer was not present. He was not in Jablanica on that day.
17 He was in the northern part of Herzegovina, somewhere in Konjic,
18 Buturovic Polje. In any case, he was outside of Jablanica, outside
19 Grabovica. I said which people were with me on the two occasions,
20 without Sefer.
21 [Prosecution counsel confer]
22 MS. CHANA: That will be all from me, Your Honour.
23 JUDGE LIU: Thank you very much.
24 Mr. Morrissey, do you have any questions to ask?
25 MR. MORRISSEY: No, Your Honour. The Prosecution's covered the
1 legitimate areas I can ask questions about. I have nothing further.
2 JUDGE LIU: Thank you very much.
3 Well, I understand that there are some documents used in the
4 deposition procedures and they have not been admitted into the evidence.
5 Are there any documents to tender at this stage?
6 MS. CHANA: Your Honour, the -- some of the documents which were
7 used in the deposition have already been tendered, except for the diary
8 and the transcript of the -- of the witness. The others are already
9 exhibits, Your Honour, and we are not seeking to tender the diary and the
10 transcript of -- has already been tendered, of the deposition. I think
11 that's already been agreed.
12 JUDGE LIU: Yes. So at this stage there are no documents to
14 MS. CHANA: If you could give me one moment, Your Honour.
15 JUDGE LIU: Yes.
16 [Prosecution counsel confer]
17 MR. MORRISSEY: While the Prosecutor is doing that, Your Honour,
18 could I just mention that in your order you requested the registrar to
19 assign an exhibit number to the transcript of this document, which I
20 believe has been done already. But it may have to be formally done in
22 JUDGE LIU: Yes, please.
23 THE REGISTRAR: The number for the deposition will be 444.
24 JUDGE LIU: Thank you.
25 Ms. Chana.
1 MS. CHANA: Your Honour, the other was the transcript of his OTP
2 interview that was alluded to in the deposition, and we would now seek to
3 -- that's the only document which is not in evidence, which is MFI P1 --
4 sorry, MFI P2, the transcript of the interview given to the OTP, and we
5 would seek to tender that.
6 JUDGE LIU: Yes. But as a general rule, if we have the
7 opportunity to have this witness in life, the previous statement will not
8 be admitted into the evidence.
9 [Prosecution counsel confer]
10 MR. WEINER: Your Honour, this was a special situation. If you
11 look back at that deposition, there was -- there was a time when this
12 witness made many statements which were in conflict with his prior
13 statement. And rather than impeach him at that time to save time and
14 rather than use him as an adverse witness, they introduced his earlier
15 statement, and it was a matter to save time and it was also a matter
16 related to this witness's health, which we all know that there is a
17 problem related to his health, without getting into that matter.
18 And as a result, that statement should be admissible, either that or the
19 -- this should be allowed to -- this hearing should remain open and let's
20 use him as an adverse witness. Which would be foolish because of the
21 health considerations, Your Honour.
22 JUDGE LIU: Any comments on that, Mr. Morrissey?
23 MR. MORRISSEY: Well, I'll restrain the comments to those
24 concerning the use of the document, and I'll leave for a later time and I
25 will raise at a later time when it's not in such a hurry the impropriety
1 of the submission that has been made and the way in which it was made.
2 At the moment, this document was not put to the witness at the
3 time. It's not relevant. The witness has given evidence in a deposition
4 and here.
5 Furthermore, Your Honours made a ruling on this question in terms
6 of how matters were to proceed here. The Defence made submissions about
7 the use of these documents and -- in those. And in my submission, it's
8 implicit in -- in that ruling that you will see his -- watch the
9 deposition and -- and -- and then have limited questions here.
10 The using of these interviews, attended as they were with all
11 sorts of considerations, is a dangerous thing to do at any time. It's
12 particularly dangerous and offensive to try to do it with a witness who
13 was not put as an adverse witness, but, on the contrary, who was called
14 by the Prosecutors to prove part of their case and was led and put before
15 the indicting Judge.
16 There are a large number of objections to this. If it's not
17 sufficient to deal with it now on the basis of which I've -- I've heard,
18 then I would seek to be able to put all this into a motion.
19 But the short answer is probably the one that Your Honour raised:
20 There's nothing special about this situation at all. The Prosecutor had
21 every possibility to put that to Mr. Karic at the time, chose not to.
22 The conduct of that deposition was absolutely disgraceful in all respects
23 by the Prosecution, which I'll amplify if needs be. And they shouldn't
24 now be permitted to get this document into evidence at the last gasp, as
25 they now try.
1 So I submit you can deal with it quite easily at this point. But
2 if Your Honours are in any doubt about it, then we'd seek leave to file a
3 motion about it.
4 JUDGE LIU: Yes.
5 MR. WEINER: Your Honour, just one brief comment.
6 A. This was -- this issue was in fact raised at the deposition at
7 page 76. And the presiding officer at that time said that it would be a
8 matter for the Trial Chamber. That's on page 76. So this was sent to
9 this Trial Chamber from the presiding officer at the time of the
11 JUDGE LIU: Thank you very much. It seems to me that we are not
12 in the position at this stage to make a ruling concerning with this
13 document. If there are any supplementary comments or information for the
14 tendering of this document and for the objection of the tendering of this
15 document, the parties will file a motion to this Trial Chamber by next
16 Monday. It is so decided.
17 Well, Witness, thank you very much indeed for giving your
18 testimony. The Bench --
19 THE WITNESS: [Interpretation] Thank you, Your Honour.
20 JUDGE LIU: The Bench wishes you a speedy recovery and to take
21 good care of yourself.
22 THE WITNESS: [Interpretation] Thank you, Your Honour.
23 JUDGE LIU: So the hearing is over. We'll take a break. And we
24 will resume at quarter past 11.00.
25 [The witness's testimony via videolink concluded]
1 --- Recess taken at 10.42 a.m.
2 --- On resuming at 11.15 a.m.
3 JUDGE LIU: Well, I believe that we could have some time to deal
4 with some housekeeping matters, especially with the admission of the
6 The first matter I would like to say is about the proposal made
7 by the Prosecution for the tendering of the interview with the accused in
8 2001. And at this stage the Trial Chamber is considering whether to
9 admit it or not, taking into the account the objections filed by the
11 This Bench requests the Prosecution to indicate the parts of the
12 interview which are relevant to the present case which they seek to have
13 admitted into the evidence, since we found that this interview is
14 extremely long and some parts are not entirely relevant to the present
15 case. And also to the extent possible, to indicate which paragraphs of
16 the indictment those parts are in support of.
17 The Prosecution shall submit the above-mentioned information by
18 Thursday, 9th of June.
19 The next issue will come to the specific documents tendered from
20 both sides. The first document is MFI 221, a document submitted by the
21 Defence. That is a report by Namik Dzankovic sent to the military. I
22 would like to know about any objections to the admission of this document
23 by the Prosecution.
24 MR. WEINER: Your Honour, just very quickly, I believe that
25 document is already in evidence, that it was just mistakenly placed on
1 the list.
2 JUDGE LIU: Yes.
3 MR. MORRISSEY: Could I just confirm that that's correct. Your
4 Honours, we think MFI 215 and MFI 2 -- MFI 215 and MFI 221 are the same
5 document, and since they are the same document, the Defence would not
6 continue to press for 221 to be admitted.
7 Now, Your Honours, that's subject to one small reservation, which
8 we can deal with later, if necessary. I'll just flag it now. We don't
9 have to do anything about it.
10 If it turns out that the translation of the two is different,
11 then we'll refer the matter back to CLSS to decide on any -- on any
12 difference. I don't believe there are material differences. And if we
13 find a difference, we'll seek to reopen the matter. Meanwhile, we're
14 happy, since they're the same document, not to push ahead with asking 221
15 to be admitted.
16 JUDGE LIU: Yes.
17 MR. WEINER: That's fine, Your Honour.
18 JUDGE LIU: Yes. Thank you very much.
19 So the next issue is the document 256 and 264, both documents
20 tendered by the Defence. And I see no objections from the Prosecution.
21 MR. WEINER: That's correct, Your Honour, no objection.
22 JUDGE LIU: So these two documents are admitted into the
24 The next issue is about 375, tendered by the Defence. And we
25 would like to hear from the Prosecution about their view on that.
1 MR. WEINER: Your Honour, that's a document that concerns
2 propaganda. It was published by the HVO for Bosnian troops, as the Court
3 recalls. Kate Adie is the witness that was shown the document. She had
4 never seen it. She was not aware of it. And she did not follow or
5 implement it. There was no evidence as to its authenticity. There's no
6 evidence as to who received it, whether it was ever sent out or whether
7 it was ever implemented. There's no evidence that it was intercepted by
8 the other side, the ABiH army, that it was sent up to their line, that
9 the accused saw it, or that anyone in the command saw it. There's no
10 evidence that it was followed. Therefore, there's a question as to its
11 authenticity. There's a question as to its relevance and materiality.
12 It was not implemented or it was not used in this case, and it has no
13 relevancy to this case. As a result, we oppose the document.
14 JUDGE LIU: Yes. Mr. Morrissey?
15 MR. MORRISSEY: It's not one of our better ones, Your Honour. We
16 say it's relevant because of the way that the crime scene was -- unfolded
17 and we say that it's chain -- the chain of custody is that it came from
18 the Croatian State Archive, so that it would not normally be a document
19 that could be proved through any of these witnesses.
20 But the matters that my friend has pointed to are all relevant
21 ones for you to consider. Frankly, here in the end Ms. Adie did not
22 adopt that document, nor did she find it of particular significance to
23 herself. So in these circumstances we offered it for tender at the time,
24 but I have to say that the Prosecution -- what the Prosecutor said are
25 entirely relevant matters for you to consider.
1 JUDGE LIU: Thank you very much. So this document is not
2 admitted into the evidence.
3 The next three documents are documents 390, 415 we mentioned
4 before, I believe, as well as 419. Those documents were tendered by the
5 Prosecution, so I would like to seek the views from Mr. Morrissey.
6 MR. MORRISSEY: Your Honour, just to be clear, we are dealing now
7 with two transcripts, one with -- between the accused and Vahid
8 Karavelic, and the other between the accused and Ramiz Delalic.
9 JUDGE LIU: Yes, I believe so.
10 MR. MORRISSEY: I'm sorry, but I'm told that 415 is -- is
11 different. That's -- that's one of the MUP reports. I apologise for
13 Could I just indicate about the transcripts, that the Defence
14 has -- we've spoken to the Prosecutors and we're taking the view that
15 we're not opposing each other's transcripts effectively, that we don't
16 argue against that. Therefore, I withdraw any reservations which I
17 previously put on the record -- well, perhaps I'll put it another way.
18 I had indicated I wanted to reserve my position about the
19 Karavelic and -- and Ramiz Delalic transcripts. Can I indicate that we
20 do not oppose those being tendered into evidence because the Defence are
21 seeking to tender documents as well of exactly the same sort and
23 As to 415 -- can I just confirm that's one that Your Honours are
24 now concerned with, 415?
25 JUDGE LIU: Yes. I believe that is a MUP report.
1 MR. MORRISSEY: Yes. Well, Your Honours, we -- we maintain our
2 objection to 415. That, again, falls into the category of MUP reports
3 upon which the Defence find themselves embarrassed because we don't know
4 who made it, when, whether the information is reliable. It's never been
5 suggested for one second that Halilovic saw this MUP report. And as with
6 most of those MUP reports, the Prosecutor didn't try to establish that
7 Sefer Halilovic saw that document. So that we oppose it -- we continue
8 our opposition to that document.
9 JUDGE LIU: Thank you very much.
10 Ms. Chana.
11 MS. CHANA: Yes, Your Honour.
12 JUDGE LIU: Do you want to -- to make a reply?
13 MS. CHANA: Yes, Your Honour. This MUP report is no different
14 than other MUP reports which have been entered into evidence, Your
15 Honour. This particular MUP report was shown to Delalic in respect of
16 the information contained therein, which was about the criminality of the
17 9th Motorised Brigade. And there is no difference between this MUP
18 report which -- and a lot of the others which were admitted through
19 Jasarevic, who said this is operative information. Your Honours of
20 course will look at the weight such documents will carry, and that is up
21 to Your Honours' discretion. But for admissibility, Your Honour, I feel
22 it's -- the Prosecution submits it's relevant and probative and it should
23 be admitted as -- as a MUP report.
24 JUDGE LIU: Thank you very much. The Bench believes that this
25 document has some relevance to our case, and also it has some probative
1 value for this document, so we decided that it is admitted into the
2 evidence, as well as the document 390 and 419. So those three documents
3 are admitted into the evidence.
4 The next batch of documents is the document 424, 425, and 428.
5 The document was tendered by Mr. Morrissey through the witness Delalic.
6 I understand there are some objections from the Prosecution. At this
7 stage, are there any things to add from the Defence?
8 MR. MORRISSEY: No, Your Honours. Could I just indicate this:
9 That this morning, not knowing how Your Honour wanted to proceed, we
10 filed a motion concerning these documents. I can put the argument orally
11 here. We don't require that -- and I'll put exactly what's in the
12 motion. It's short. It's short.
13 The issue with those letters was that they were -- the Defence
14 wished to lead them in evidence as a spontaneous reaction by those in
15 Sarajevo. The fact is documents like that are usually not admitted, and
16 in these circumstances, if the Prosecutor was prepared to consent to them
17 being admitted from -- I mean, they're documents from the bar table, Your
18 Honour. That's the reality about them. If the Prosecutor consents to
19 them being tendered, then they can be tendered. If the Prosecutor
20 maintains their position, that unfortunately for us is the end of the
21 question at this stage.
22 So if the Prosecutor consents, I'm happy; and if not, I think
23 Your Honours have no -- no option but to -- to refuse to admit them.
24 JUDGE LIU: Yes.
25 MS. CHANA: The Prosecution maintains its objection to these
1 three documents, Your Honour.
2 JUDGE LIU: Thank you very much. Therefore, these three
3 documents are not admitted into the evidence.
4 But I have to say that this decision is without prejudice to the
5 future introduction by the parties if - if - we find it relevant to our
6 case through future witnesses in the Defence case. It is so decided.
7 The next documents are two documents, that is, documents 431 and 434.
8 Those two documents are tendered by the Prosecution through the witness
9 Bakir Alispahic.
10 Mr. Morrissey, are you in the position to -- to say your position
11 on that?
12 MR. MORRISSEY: Yes, Your Honour -- sorry, would Your Honour just
13 give me one moment?
14 JUDGE LIU: Yes.
15 MR. MORRISSEY: It's best to deal with these now, if possible.
16 If you'd just give me one moment, Please.
17 JUDGE LIU: Yes, please.
18 [Defence counsel confer]
19 MR. MORRISSEY: We object to both, Your Honours. The first one
20 is -- the first one is 431. That's the document concerning the alleged
21 massacre at Klis, K-l-i-s.
22 Now, this was a poisonous document. The Prosecutors in that --
23 the information in that document is that Halilovic ordered Ramiz Delalic
24 to go and massacre and rape and burn a particular village. The
25 Prosecutors did not put that document to Ramiz Delalic, didn't ask him
1 about it. Instead it comes to Mr. Alispahic. He considered it. He said
2 it was unreliable.
3 Now, it's just a piece, in the Defence's submission, of poisonous
4 gossip that is so far from anything to do with the case and so far from
5 reality that the -- that the Chamber should simply dismiss it as being
6 too remote to be of any assistance to you. It's not a document that
7 could ever have been shown to Halilovic.
8 Now, the Prosecution may from time to time show documents which
9 are supposed to have put Sefer Halilovic on notice. So if there was a
10 report about Caco and the 10th Brigade or Celo and the 9th Brigade which
11 was shown to Halilovic. Of course that's relevant for the Prosecution to
12 lead, even if they can't prove where it comes from or what weight it had.
13 And such evidence, I believe, was led or at least a small portion of such
14 evidence was led.
15 But this document could never have been shown to Halilovic. It
16 involves Halilovic. It says Halilovic is the author of the killings. No
17 one suggests it was shown to him, and common sense reveals that it
18 couldn't have been. Therefore, as well as being poisonous and
19 prejudicial, it's just irrelevant to these proceedings.
20 There's a further issue that it lies way outside of the
21 proceedings. Your Honours, we would be here until 2009 if we had to deal
22 with every allegation made by Ramiz Delalic against Sefer Halilovic.
23 Murdering the commander in chief is one. But this one didn't come
24 through Ramiz Delalic. It's just a document that we shouldn't have to
25 deal with and we'd ask that Your Honours cut this unwelcome guest out of
1 the trial at this stage.
2 As to the next -- and perhaps I should say this, too, Your
3 Honours: That my learned friend Ms. Chana would confirm this, that
4 although in court here Mr. Delalic wasn't confronted with that document,
5 my learned friend Ms. Chana can indicate to you whether or not he was
6 confronted with it, as Ms. Chana would, as a matter of fairness, have
7 been obliged to do and I'm sure she will confirm that she did confront
8 Mr. Delalic with it during that interview. And of course, you know, has
9 you can imagine -- I won't say what's in it. The Prosecutor can tell
10 you. But I mean, this -- anyway, I've said what I've had to say about
11 that, Your Honour. And I'll become verbose as I already have on the
13 The next one, 434, we object to that for a different reason.
14 That is the document signed by Mr. Mujezinovic, a witness who the
15 Prosecution withdrew after having moved this Court strongly at a late
16 stage to include. Now, Mr. Mujezinovic is said to be the author of this
17 document, although he's not here to prove that he was. But it's a
18 document dated in -- in October. It's after Grabovica. And it's
19 concerned with Halilovic's own allegedly bad behaviour. It's not
21 The Prosecution is not allowed to throw mud at Halilovic and to
22 cast aspersions on his character. They may lead evidence before the
23 crimes that he was on notice or, if they had any such evidence, they
24 might be allowed to lead evidence after the crimes that he covered up the
25 crime or that he failed to do something that -- that the Prosecution says
1 he should have done. But to lead evidence that he was vain, self-
2 promoting, and wanted the media to cover him well, is irrelevant, and
3 it's prejudicial. And by "prejudicial" I don't mean harmful to him.
4 There's a lot of prejudicial material in trials that hurts the accused.
5 That's not prejudicial. That's just evidence. This is prejudicial
6 because it creates a bad atmosphere about Halilovic which is irrelevant
7 and which is hard to find. Because it means that we have to go back and
8 call evidence about -- well, from -- I suppose from newspaper editors or
9 -- I don't know where you turn, frankly. But we shouldn't have to meet
10 that. It's just outside of what the Prosecution is entitled to prove,
11 and it has -- it has a prejudicial effect with no probative value.
12 That's relevant not just to weight. It's relevant to whether you add it
13 to the trial record here and put us in a position where we have to decide
14 do we extend the trial fighting these sort of allegations or do we not.
15 So in my submission, you can leave that one out on that basis.
16 There is a further reason, of course: that Mr. Mujezinovic could
17 have been brought here and wasn't. Now, the Prosecutor is entitled to
18 make a decision about Mujezinovic. The Chamber has already indicated the
19 rules you'll apply when the Prosecutor makes the decision. Frankly, the
20 Prosecutor has to run its own case. We well, understand that. But when
21 you take Mr. Mujezinovic out, you can't, then, put in his documents,
22 unless by consent. And with this one here, we do not consent.
23 Those are my submissions about those two documents.
24 JUDGE LIU: Any reply from the Prosecution?
25 Yes, Mr. Re.
1 MR. RE: Yes. Your Honour, briefly, on 431, the first one. Mr.
2 Morrissey rightly points out that it's prejudicial, like -- well, that's
3 the idea of a Prosecution case, to produce prejudicial evidence against
4 the accused. We clearly aren't relying upon an allegation in there in
5 relation to Mr. Halilovic's personal participation in the alleged events
6 in Klis, and Mr. Alispahic made it quite clear he couldn't comment on
8 It's not quite correct, as my learned colleague said, that --
9 Defence colleague said that it was -- had no reliability. Mr.
10 Alispahic's evidence was it was at the lower end of reliability because
11 it was a first -- it was a first source which had to be corroborated by
12 any others. But the -- the parts about this -- about this particular
13 document we rely upon are to show that soldiers from Sarajevo had been
14 there before and had been brought back and had been brought back because
15 of bad behaviour, and that was something that was known to those who
16 should have known. Mr. Alispahic, the Minister of the Interior, knew
17 about it. And if he knew about it, it is so unlikely that the army
18 command, Mr. Halilovic as the Chief of Staff, would not have known about
19 it, that it would be almost virtually impossible for them not to know
20 about these troops being brought back for bad behaviour.
21 Now, Mr. Alispahic's evidence was that some of it, some of the
22 information, was true but he wasn't going to go into any specifics. So
23 it's just a -- a document that is broadly corroborative of other evidence
24 about the reputation of those particular brigades. We put it -- we put
25 it no further than that. So that's that one.
1 The second one is 434. That, in our submission, is in the same
2 category as the other MUP reports. Mr. Morrissey again raises the issue
3 of Mr. Mujezinovic. Well, had we known before today that the Defence was
4 not objecting to the intercepts going into evidence, Mr. Mujezinovic
5 would not have been on our witness list. He was on our witness list to
6 -- primarily to prove the authenticity of the intercepts. It was when we
7 decided only to rely upon those brought -- those to which Mr. Karavelic
8 and Mr. Delalic were participants in the conversation who could prove
9 them anyway, that we wouldn't rely on the other intercepts. But then it
10 was the Defence who decided to pick and choose the intercepts that they
11 liked to put in and we kindly didn't -- didn't oppose their own tender of
12 intercepts. So that -- the Mujezinovic issue, in our submission, is
13 entirely a red herring.
14 But what this document goes to show is basically the view of Mr.
15 Halilovic -- which is held by those who were investigating his conduct at
16 the time, which is corroborated by the evidence already led in this case.
17 Mr. Hodzic was his own journalist, who almost -- it would appear on the
18 evidence Mr. Halilovic's personal journalist who was following him or
19 covering -- covering large aspects of Mr. Halilovic's own activities.
20 We've heard evidence the Defence introduced it about pictures of Mr.
21 Halilovic being on a police station. There's been evidence of Sefer
22 Halilovic badges.
23 So all this goes towards the mens rea or the motivation of Mr.
24 Halilovic in bringing the soldiers from Sarajevo to assist in his own --
25 to assist his own desire to rehabilitate himself in the eyes of the --
1 the Bosnian Presidency and the command, and there's evidence of that in
2 numerous documents. There are a number of document which is have been
3 tendered, as to the view of the security services as to what Mr.
4 Halilovic was doing. So it's another broadly corroborative document
5 which goes to Mr. Halilovic's mens rea at the time.
6 But I mean, these two documents aren't, I add, make-or-break
7 documents for the Prosecution case.
8 [Trial Chamber confers]
9 JUDGE LIU: Well, after consultation with Judge El Mahdi, I came
10 to the conclusion that the document 431 is not admitted into the evidence
11 since we believe that the evidence in that document is far remoted from
12 the case we are hearing now, and we are not quite sure whether this
13 document could assist us or not.
14 As for document 434, it is admitted into the evidence, and we
15 have admitted many MUP reports in this aspect, and the Benches are
16 composed of professional Judges, and they could see whether some
17 materials in it is relevant or not. It is so decided.
18 As for the document 438, 439, 440, 441, 443, and 244, these are
19 the documents tendered by the Defence. I believe there are no objections
20 from the Prosecution.
21 MR. WEINER: Excuse me, Your Honour.
22 JUDGE LIU: Yes.
23 MR. WEINER: Number 244 isn't on the list. We -- we have no
24 objections to the others, 438, 439, 440, 441, and 443.
25 JUDGE LIU: Yes. The document 444 is a conversation between
1 President Tudjman and Izetbegovic.
2 MR. WEINER: No objection.
3 JUDGE LIU: Thank you. These documents are admitted into the
4 evidence. It is so decided.
5 In the filings from the Prosecution, there are some documents the
6 Prosecution would like to tender through the bar table which appeared on
7 the 65 ter list; that is, document 36, 37, 56, 85, 124, and 135.
8 Mr. Morrissey.
9 MR. MORRISSEY: Yes. Your Honours, the -- the matter -- the
10 question of tendering documents from the bar table arises in this way:
11 It's a convenient device that's sometimes used to save the calling of
12 witnesses, if the parties agree. If the parties don't agree, it's not
13 part of the system. It's not part of the -- the principles of evidence
14 at this Tribunal or in -- or in any system that I'm aware of for obvious
15 reasons: testability, reliability, and so on.
16 Now, with respect to these documents here, we think document 36
17 that the Prosecution wants to tender is already in evidence as Exhibit
18 406. And I'll just confirm that -- I'll give the Prosecutors a chance to
19 look. But this seems to us to be a note dated the 1st of September
20 concerning an inquiry by members of the inspection team back to those in
21 Sarajevo and it was tendered through another witness. It might have been
22 tendered through Mr. Karavelic, I think. But anyway, we think it's
23 Exhibit 406. So perhaps that could be checked.
24 Likewise, we think that document 56 is also in evidence. That's
25 the Zuka order, the battle -- sorry, I shouldn't say "Zuka." We're
1 getting into the nicknames here. We think that's the Operation Vrdi 93
2 order, the battle plan drafted by and issued by Zulfikar Alispago on the
3 11th of -- of October. We think that's in as Exhibit 273. If the
4 Prosecutor could perhaps just check those. We -- we might be wrong, but
5 we think that's the case; we think both of those are in.
6 Now, the other documents we object to. We think they should be
7 dealt with by way of -- of a short motion, which we've almost finished
8 drafting. They're not documents which -- one of them -- one of them is a
9 document we could deal with now, and the other three are not, I think.
10 Document 37 is -- is an order said to be from Arif Pasalic. Again, it
11 hasn't been shown to any witnesses. It hasn't been shown to have played
12 any part in this case. It shouldn't be admitted.
13 I want to foreshadow that later today a motion is going to be
14 filed by the Defence that you, the Chamber, reconsider your admission of
15 a number of documents. It's finite in nature. They are, I think -- if
16 you'd just excuse me a moment. I can foreshadow what they are here.
17 Just while that's found, Your Honour, I can indicate broadly
18 speaking it's six documents that were said to come from the 4th Corps
19 down in Mostar to the IKM, and it's -- and the exhibits are P111, 112,
20 113, 114, 115 and 121. So they're all documents coming from the 4th
21 Corps, allegedly, up to the IKM.
22 At the time they were tendered, they were tendered en masse as
23 part of a large bundle of documents with the third witness, Salko Gusic.
24 And at the time, Mr. Gusic made it absolutely plain he'd never seen them
25 nor was he able to say anything about them. But at the time, the
1 Prosecutor indicated to you - and we'll put this in the motion - the page
2 reference is something I was looking for this morning. I recall it well,
3 and I have in the past found the page reference. I just haven't got it
4 today. So it will be in the motion this afternoon. But the learned
5 Prosecutor indicated to you at the time that there would be further proof
6 of these documents.
7 Now, at the time, I have no doubt that was said in good faith and
8 that it was intended there would be, but as events proved, there wasn't.
9 Never were those documents shown to another witness. As far as I can
10 see, they were shown initially to Gusic because he was a person who --
11 through whom other documents were being put, and frankly the Defence did
12 the same thing. I make no criticism of my learned friend Ms. Chana at
13 the time for doing what she did and it was appropriate for her to say to
14 the Court, "Well, we'll give you more," because she needed to give you.
15 But as events proved, the Prosecution did not do so.
16 And therefore you'll receive a short motion asking that those
17 documents, although they have been admitted, be withdrawn and that you
18 reconsider that decision because of the way things worked out. Because
19 in the end there was no witness called, although there's plenty of
20 witnesses who could have been called, dealing with the 4th Corps. Now,
21 it's true that the commander of the 4th Corps at the time, Arif Pasalic,
22 although this may be sounding as if it's coming from the bar table - I
23 think it is in evidence as well - is deceased. But there are plenty of
24 other 4th Corps officers, including those who gave OTP statements, one
25 named Budakovic. The Prosecution disclosed a statement from him. So
1 they have 4th Corps people if they need them. They have reasons for
2 their decisions. I don't criticise those decisions. But now those
3 documents have become moot and in my submission we'll -- well, we'll move
4 a motion if we've got any merit in our argument, you can rule on it, Your
5 Honour. And we'll do it very shortly.
6 It may be, therefore, that in dealing with the Prosecutor's
7 document 37 here, this Pasalic order, the same principles would apply; in
8 other words, if you're prepared to admit those other documents, then it
9 would be hollow for us to continue our opposition to this one. We'll
10 continue it formally of course just for record purposes frankly, but we
11 would object to all of those documents being tendered.
12 But there is another -- another issue with document 37, and that
13 is that it -- it's a bar table document. The other ones at least were
14 touched by a witness, even though he know nothing about them. His from
15 fingerprints are -- or at least he saw them in those days when they were
16 using the Hollywood device. Then it was shown to him. I'm not sure if
17 he touched the document, Your Honour.
18 But in any event, that's the opposition to that.
19 The other three are in a different category. 85, 124, and 135
20 are all documents purporting to be from Mr. Halilovic or recording in
21 some form things that he said.
22 Now, I say at first you don't tender things like that from the
23 bar table. Let it be quite clear, we do not consent. It's questionable
24 whether such documents can be led in the Prosecution's case in any form
25 or whether they have to wait for the Defence case. Your Honours have
1 already got a lengthy motion concerning the OTP interview of Mr.
2 Halilovic, and the way you deal with the problems in that motion will
3 largely dictate how you deal with what I have to say here.
4 Therefore, what I propose and what I submit should happen is that
5 we file another short motion to be annexed effectively to that one
6 adopting the arguments rather than repeating everything that's there,
7 because many such things apply. And Your Honour can deal with it there.
8 There are objections of substance and there are objections of form. We
9 don't want things to be led from the bar table.
10 Can I say, Your Honour, that that seems to be the best way to
11 deal with it because otherwise I'll -- I feel myself ready to make a
12 speech, and it's best if we keep that confined a short number of pages,
13 with a short time line, which we'll abide by. We think we could give
14 that to the Prosecutors today, because of course we've prepared something
15 along -- something to meet the 1996 statement in the past, and we can
16 deal with that today. So --
17 JUDGE LIU: Thank you very much.
18 Well, since -- yes, Mr. Weiner.
19 MR. WEINER: Your Honour, if we're going to -- would you like us
20 to address those issues now or do you want us to wait for the documents
21 -- the memo from the Defence?
22 JUDGE LIU: I believe the best way is to wait till you see the
23 memo from the Defence. Then you are in the position to make a very
24 concise reply.
25 MR. WEINER: All right. I would just like to address one issue
1 on that, Your Honour.
2 JUDGE LIU: Yes, please.
3 MR. WEINER: Counsel began by saying that there is no tendering
4 documents from the bench. Every week in this Tribunal documents are
5 tendered from the bench or from the bar table, every week. In Galic,
6 "Decision on the Admission Into Evidence of Documents Tendered From the
7 Bar Table By the Prosecutor," 11 September 2002 concerns the tendering of
8 documents from the bar table.
9 Decision, Prosecutor versus Hadzihasanovic and Kubura, "Decision
10 on the Admissibility of Certain Challenged Documents and Documents For
11 Identification," and that's 16 July 2004. In that case hundreds - we're
12 not talking about one or two - hundreds of documents were tendered from
13 the bar table. And at one point during that case the Prosecutor moved to
14 tender approximately 1.000 documents, which were a total of 3.000 pages,
15 from the bar table, of which a number of them were objected to, and
16 that's why these decisions had to come. And in that case, at page 22 it
17 states - and I'm just reading paragraph 15, the first few sentences:
18 "The first question arises is whether the admission of a document without
19 its purported author or another individual who can testify to the
20 document being called as a witness constitutes in itself a violation of
21 the Rules of Procedure and Evidence. As already stated by the Chamber in
22 its previous section of this decision, the jurisprudence of the Tribunal
23 is clear on this matter. There is no principle of blanket prohibition on
24 such documents."
25 We will respond in writing to any of their claims; however, I --
1 I think it should be clear on the record the jurisprudence of this
2 Tribunal is that documents may be tendered from the bar table. Thank
4 JUDGE LIU: Thank you very much.
5 I believe that this Bench has no disputes with the positions from
6 the Prosecution, but the very issue is what's the criteria for the bar
7 table practice. Since both Judge El Mahdi and I are from the civil-law
8 legal system. Personally speaking, we don't have a problem for that.
9 But, however, there must be some criteria for the admission of the
10 documents through the bar table. This is the very issue that we have to
11 deal with.
12 As for the specific documents, I believe that since the document
13 65 and document 56 has been admitted into the evidence through the
14 witnesses, so those proposals are moot, I believe.
15 As for the other four documents, 36, 85, 124, and 135, the
16 Defence has already promised us to file a very concise motion, and I hope
17 they could do that as early as possible, so probably could do it before
18 next Monday. And the Prosecution also have time to reply, I hope. How
19 about next Thursday -- before next Thursday. Yes, so that the Bench will
20 be in a better position to deal with those two -- those issues at that
21 stage. Yes.
22 Are there any other documents that the parties would like to
25 MR. RE: Could I just very briefly say something in relation to
1 document 135, which is Mr. -- the statement Mr. Halilovic gave to the
2 Prosecutor in 1996. We wish to make it very clear -- we understand the
3 Defence is filing a motion opposing its admission into evidence, and this
4 is being done basically on the last day of trial, when the -- the
5 statement has been on our witness list for some years and we have always
6 intended to tender it from the bar table in accordance with the
7 jurisprudence of this Tribunal, as Mr. Weiner has just very eloquently
8 led Your Honours to.
9 We would flag to the Defence before they file it that they would
10 have extraordinarily cogent reasons to resist the tendering of a written
11 statement by the accused some years before the matter was being
12 investigated, voluntarily made, after seeking legal advice, and signed
13 and made over a number of days and signed. There would have to be some
14 fairly extraordinary reasons for them to oppose admitting into evidence
15 the witness -- the accused's own voluntary account of what he says
16 happened at the time when no suggestion has ever been made in these
17 proceedings, unlike the record of interview in 2001, which they have made
18 some allegations and the interview with Bosnian State Security in 1993.
19 Nothing has been said in these -- in the filings, in the pre-trial brief,
20 or in court, or to any witnesses casting any doubt on the authenticity or
21 the reliability of Mr. Halilovic's account to the OTP in 1996. We say
22 it's very late in the day and there's got to be something which is
23 absolutely extraordinary at this particular point to be in that filing.
24 So we just ask the Defence to bear that in mind in whatever they file
25 before the Trial Chamber.
1 MR. MORRISSEY: Well, Your Honours --
2 JUDGE LIU: Yes.
3 Yes, Mr. Morrissey.
4 MR. MORRISSEY: I need to respond to that.
5 If Mr. Re has a witness that will indicate that all of those
6 things he has said are true, he may ask you for leave to call that
7 witness. But it's not for the Prosecutor to assert that these things are
8 done voluntarily or to assert any of the facts made there.
9 In this case, the Prosecution have not called an expert. You
10 know why. They -- because they're not calling an expert, it's not
11 sufficient for Mr. Re to say from the bar table that -- that these facts
12 exist which you should presume when considering the document.
13 It's the very evil of tendering things from the bar table that
14 you don't know where this document came from, who wrote it, how it came
15 about. And it's a practice that we resist because if it starts here,
16 where does it stop? Perhaps the Defence will just bring along 500
17 documents and tender them from the bar table too. Your Honours would
18 resist that, and this is a trial where witnesses give evidence and
19 documents are tendered in a proper way to allow you to scrutinise them
20 and to analyse them properly.
21 Now, the Defence is not contending for any blanket prohibition on
22 tendering things from the bar table. We'll put this in the motion. I
23 don't want to argue it twice. But I want to say clearly that my friend's
24 assertions here are not evidence, and there's a place where evidence
25 comes from; it's right there, and it can be given -- the evidence can be
1 given from there. But, Your Honours, the Prosecutors have never called
2 or sought to call an investigator, because they know what will happen if
3 they do.
4 So for those reasons, it's not for the Defence to provide
5 extraordinary material; it's for the Prosecutors to show why this
6 document is admissible and why it is that you should accept that a piece
7 of paper has some probative value in the absence of any other matters.
8 In addition to that, I'll just comment that we have sent a lot of --
9 there's been a lot of correspondence with the Prosecution about this
10 document here. For them to say it's being done at the last minute is a
11 hollow complaint, but only if Your Honours are concerned about the issue
12 of timing will I dress it. And I'm not going to unless called upon to do
14 So that's the response to what my learned friend Mr. Re says.
15 And Your Honours, we'll undertake to file as quickly as we can
16 and give Your Honours a chance to read it. We'll keep it as short as we
17 humanly can, yes.
18 JUDGE LIU: Thank you very much.
19 MR. RE: I must place on the record we -- object again to what my
20 learned friend has said: "The Prosecutors have not sought to call an
21 investigator because they know what will happen if they do so."
22 We entirely reject that suggestion. This is the first we have
23 ever heard that there was any -- any doubt cast upon the integrity of
24 that particular investigator who wasn't connected with the investigation
25 of Mr. Halilovic later. It's entirely separate to the allegations they
1 have made against other investigators. We had no indication that the
2 document -- the statement was objected to, that there would be any
3 requirement to try and track down someone who took the statement nine
4 years ago, a document which is signed.
5 And we ask the Defence to withdraw that allegation or
6 alternatively to put some evidence before the Court to substantiate it.
7 They can't just say, "We know what will happen if we call the
8 investigator." Well, we don't. We haven't contacted the investigator.
9 We had no need to do so. It's a statement signed by the accused.
10 MR. MORRISSEY: If I could be very --
11 JUDGE LIU: Thank you. Thank you. Mr. Morrissey, there will be
12 no end for these disputes. We understand that there are different views
13 between the two parties concerning with those documents, and we
14 understand that the parties will file their motions voicing their
15 reasons. And we noticed that the positions of both parties are very
16 clear, and it is registered in the transcript. And we'll consider the
17 positions of the parties when we are considering the commission of those
18 documents. So let's come to an end for this debate at this stage.
19 The next issue is about the 98 bis filings. Mr. Morrissey, are
20 you now in the position to inform the Bench whether you are going to file
21 a 98 motion -- 98 bis motion at this stage?
22 MR. MORRISSEY: Your Honours, the Defence does not seek to
23 activate that process. We're not going to file any such document.
24 JUDGE LIU: Thank you very much indeed. The reason I ask you is
25 that we -- if -- if you want to do that, we have to make some
1 arrangements, you know.
2 And I want to stress at this stage that the resignment of Judge
3 Szenasi and the replacement by Judge Mumba, in the view of this Bench,
4 does not constitute an obstacle for any motions filed by the parties.
5 MR. MORRISSEY: Yes. Well, Your Honours, I can indicate that I
6 hear what Your Honour says. Your Honour was good enough to indicate that
7 on -- on the other occasion. The Defence finds itself in a real-world
8 situation. We've taken the decision. We're not going to trouble you
9 with such a submission. And that's what I have to say about it at this
11 JUDGE LIU: Thank you very much. Thank you.
12 Well, the next issue is about the timetable, that we are
13 expecting the Defence to file their 65 ter filings on the 13th of June.
14 On the 17th of June we'll hold a Defence conference. And before that
15 there might be a 65 ter Conference, maybe not in this sitting, and the
16 Defence case will start on the 20th of June with the opening statement by
17 the Defence counsel.
18 Yes, Mr. Morrissey.
19 MR. MORRISSEY: Your Honours, we agree with that -- that
20 programme. It's -- it's obvious that it's a very tight schedule, but can
21 I indicate that we've -- today co-counsel has gone to commence the work.
22 He left this morning with an investigator. So we'll just simply do our
23 best. We'll keep the Prosecution advised and the Chamber advised of
24 delays or troubles that we anticipate. But this trial really proved that
25 if you set a strict schedule, we can stick to it. It actually helps us.
1 So we expect to meet those and we're going to do all we can to do so.
2 JUDGE LIU: Thank you very much. I would like to say that this
3 Bench appreciates very much the effort by the Defence to speed up the
4 proceedings of this case, and we thank you very much for your cooperation
5 in this aspect.
6 MR. MORRISSEY: Well, I'm grateful, Your Honour.
7 Your Honour, Your Honour's reference to the possibilities of a 65
8 ter Conference is one that we agree with and we think that it should be
9 scheduled shortly before the -- the conference on the 17th of June, so
10 that we had in mind the 15th or 16th of June, subject to the Prosecutor's
11 convenience as well, of course. Those are dates which would suit us.
12 Our work is going to be a work in progress at all times, and it may be
13 that we have -- have a -- a larger than necessary list on the 13th
14 because we'll put -- we'll do everything we can to put -- to go larger
15 rather than smaller, and at a later time if we have to cut people, if we
16 need to. It means that a shortage of surprise witnesses anyway, so it
17 will help us from that point of view.
18 But we may be in a position to give more information even from
19 the 13th to, say, the 16th. So yes, we -- we support that. Our own
20 preference is for the 16th, but we'll be available when -- when the Court
22 JUDGE LIU: I thank you. I think that date could be settled
23 after consultations between the parties as well as with the Chamber at a
24 later stage.
25 And the last matter on my agenda, that I have to warn both
1 parties we might sit a week into the summer recess. It all depends on
2 the 65 ter filings from the Defence on the 13th of June and the -- but at
3 this stage I just send warning signals, you know, to the parties so that
4 it could be in the transcript, in the record.
5 MR. MORRISSEY: Your Honour, we're grateful for that indication.
6 It -- it would be to everyone's benefit if the Defence case could be
7 finished or very close to finished by that time. And that seems to me to
8 be an achievable outcome. So we would be prepared to sit in. And it
9 would also help the Defence because if the evidence in the case is
10 substantially concluded by then, then the break that comes along can be
11 effectively working time.
12 Now, that has implications for -- for our staff as well, in terms
13 of our ability to fund them and pay them. So we would be very grateful
14 for that a happen.
15 JUDGE LIU: Thank you.
16 Are there any other matters that the parties would like to bring
17 to the attention of this Bench at this stage?
18 Yes, Mr. Morrissey.
19 MR. MORRISSEY: Your Honour, yes, there are. There's a number of
20 matters that I have to raise now. Perhaps if I could list them and then
21 I'll go to the substance.
22 First of all, we want to raise the issue of the list of alleged
23 victims of the crimes. Then we want to raise some issues concerning the
24 electronic discovery suite. After that, we want to raise an issue of
25 some letters which are outstanding between the Defence and Prosecution,
1 although I hasten to say that an important one of those was answered last
3 Fifthly, I want to raise an issue of the procedures concerning
4 provision of material to be used in cross-examination by the Prosecutor.
5 And last of all, I want to raise some issues concerning Rule 68.
6 That's the agenda, if you like, of Defence matters at this point.
7 Your Honours, as to the first, the list of alleged victims, it --
8 the 98 bis procedure can have its uses for the -- I imagine for the
9 Chamber because it helps you to -- to encapsulate where the Prosecution's
10 case is up to, and we also would be assisted by that. But at least a
11 list of those who can be proved to be murdered could now be -- be led.
12 It seemed to me that -- again, it's not a 98 bis point. Again, we're not
13 putting such an argument now. But it seems to me that there are some
14 people who clearly couldn't be proved and there are some who on the
15 evidence now clearly could be said to -- at least there's a case that
16 they were murdered. So that the Prosecutor might be able to provide
17 that. And that's the first matter I wanted to raise.
18 JUDGE LIU: Yes. Yes, Mr. Weiner.
19 MR. WEINER: Your Honour, you asked me to provide it. I have
20 drafted the document in relation to Grabovica, as we know, between Kate
21 Adie and Mr. Zelenika. Everyone was photographed deceased in Uzdol. But
22 I have drafted it. I sent it to the team members. We've had a full team
23 this week. I've sent it to the other team members. It will be filed
24 either late today or tomorrow morning.
25 It appears that everyone but, I think, six -- there is proof
1 against all 26 -- 26 or 27, I think 27 of the victims have sufficient
2 proof. Six of them have not been proved -- proven. But the Court will
3 get that either today or tomorrow morning.
4 JUDGE LIU: Yes. I think in that list you could indicate the
5 evidence supporting --
6 MR. WEINER: That's already done, Your Honour. I have including
7 the trial cite. The day of trial when each of the statements were made.
8 JUDGE LIU: Thank you very much. I believe that that will
9 greatly facilitate the Defence case, as well as the Chamber.
11 MR. MORRISSEY: Thank you. I'm grateful for that indication.
12 JUDGE LIU: And another list that I believe this Bench required
13 to the Prosecution, that is, the chart of the chain of commander in the
15 MR. WEINER: [Microphone not activated]
16 JUDGE LIU: Your microphone, Please.
17 MR. WEINER: Excuse me?
18 JUDGE LIU: Your microphone, Please.
19 MR. WEINER: Oh, I'm sorry. We will provide that to Your
21 JUDGE LIU: When?
22 MR. WEINER: I'll speak with our military analysis unit, but
23 within the week.
24 JUDGE LIU: Thank you very much indeed.
25 You may proceed, Mr. Morrissey.
1 MR. MORRISSEY: Your Honours, just with respect to that chart, I
2 should say the Defence would -- would want to be heard about that in the
3 future because a chart produced by the Prosecutor's military experts the
4 Defence will no doubt say is wrong. And -- and would -- would want to
5 cross-examine somebody upon it if such a chart was to be produced.
6 But, however, there may be a simpler way to do it than to go to
7 the military expert. There is, in fact, in evidence a chart that was put
8 there Mr. Karavelic. That chart is a little difficult to read. And you
9 may recall that both the Prosecutor and myself had some difficulty in
10 focussing on the broken lines as opposed to the hard lines there. Now,
11 that chart might be amenable of graphic improvement so that it can be
12 done in a way that all of us can understand without changing the meaning
13 or adding any Prosecution or indeed Defence hopes.
14 Your Honours, there's -- just one little stroke of a pen can
15 change everything. So we -- you know, what we would like is that -- is
16 that perhaps that could be the basis. And we couldn't object to that.
17 If it's a military expertise from the Prosecutors, we would object to it,
18 Your Honours.
19 But perhaps I can speak to my friend about that and we'll see if
20 we can reach some common ground. If we can't, we'll come back to you.
21 Your Honours, the next issue I wanted to raise was concerning the
22 EDS, electronic discovery suite, and the disclosure that occurs on it.
23 Now, it's occurred in recent cases not this one but the Limaj case and
24 other cases that there have been some controversy of the operating of
25 this system. It has got some real problems with it. And those problems
1 are not to be raised by the Defence when a nasty document suddenly jumps
2 up at the last minute, because at that time the witness is already there;
3 the Chamber is obviously aware that the document exists, and there's a
4 temptation to use it and to want to see it. And therefore the Defence
5 really want there to be some clear rules of engagement and rules by which
6 we proceed in the using of such material.
7 Now, what has happened in some previous cases and what happened
8 in the Limaj case quite recently is that at a very late stage when a
9 witness came to give evidence material prejudicial to that witness was
10 disclosed to the Defence, very late. It was said at the time by the
11 Prosecutors - and the Defence is not entering into a good-faith analysis
12 about all this - that it just happened that they found it at that late
14 But the EDS system, Your Honour, is just very difficult to use
15 from the Defence point of view. We find ourselves constantly unable to
16 find documents on it. I don't know and I don't presume that Your Honour
17 has a great in-depth knowledge of how that system works, but my
18 understand is as follows:
19 The EDS system is a storage facility onto which data that the
20 Prosecution has in its possession is placed. It has two categories that
21 are able to be searched: There's a general category; and then there's a
22 case-specific category. There are various ways in which that -- that
23 database can be searched by both the Prosecutors and the Defence, and on
24 that database is to be found -- are to be found many documents.
25 The Prosecution have said in other cases, and it may be their
1 position here, that they discharge discovery obligation by placing on the
2 EDS material that comes into their possession. And one can see from the
3 Prosecutor's point of view that they handle many documents and that they
4 -- although they are well resourced, they might not be well enough
5 resourced to hand deliver every document to the Defence, and we accept
6 that there's some need for facility of that nature to exist.
7 But the difficulty is that it's very hard to search - and the
8 Defence experience is that it's hard to search. The Prosecutors say, as
9 I don't know whether they will in this case - I suspect they will - that
10 they don't have any problems to search and they can search. But our
11 experience is that it is a absolutely nightmare. As a test you can have
12 that document in front of you. You can try and find that document that
13 you know exists, that you have the ERN numbers for, and you can't find
14 it. In other occasions, you can do find it. So it's an unpredictable
15 tool and it's very difficult.
16 But further, the Defence simply does not have the resources to
17 constantly check this -- this electronic discovery suite. We cannot do
18 it. I can say it no plainer than this. The breakdown of the hours that
19 we work is already relatively outrageous. We work hard. The staff I
20 have work very hard. They cannot do that. We do not have the resources
21 to look at it. We are not going to look at it. We can't. We can't do
22 our job and do that.
23 And therefore what is needed is for the Prosecutor to indicate to
24 us -- they don't have to provide us with paper copies of the documents
25 but they have to give it an indication when they are updating that system
1 in a way that concern it is Halilovic case.
2 All we need from the Prosecutors is an indication, "Today we
3 placed these document numbers," and a short description of those
4 documents, "on the EDS. They need to tell us what's gone on there,
5 because we can't check, and we know -- we suspect that there's -- we have
6 a suspicion that by shaking tree, thing wills fall down. We think there
7 be material. We think that a lot has gone on now that we've reached this
9 What we want -- and we're going to move a motion to the effect --
10 we've written to the Prosecutors. And we're going to move a motion to
11 the effect that unless the Prosecutors agree to what we put in the
12 letter, we'll move the Tribunal to make some rules about this. You don't
13 have to give the Defence everything they want but we need some rules to
14 indicate what's going on, because otherwise we will not be in a position
15 to know what the Prosecution has put on the EDS. We cannot monitor it
16 like policemen, so we need to be told what's going on.
17 And it's very important that we say it now so that the
18 Prosecution has time to respond rather than to say it as a time later
19 when we look like we're hiding behind a fig leaf because we're
20 embarrassed about a particular witness being shown his -- a film of him
21 committing crimes or whatever it be that that happens. And so we need to
22 know these things in advance. And we don't want to be put in the
23 position of troubling the Tribunal with people who shouldn't be called,
24 people who are -- you know, about whom there's dreadful material.
25 So I indicate that, that we are going to move a short motion
1 concerning the EDS and the rules to be applied, unless the Prosecutors
2 and I can come to an agreement over this -- this topic. I flag it now.
3 They can say what they want here, of course. I've mentioned it so they
4 can respond. But I'm not asking you to rule but I have to put it on
5 record now at this time.
6 JUDGE LIU: Well, any response?
7 MR. WEINER: Very brief, Your Honour.
8 JUDGE LIU: Yes.
9 MR. WEINER: Defence filed a letter to us. The letter will be --
10 a response to their letter on this matter will be filed today.
11 Mr. Sachdeva has been working on it and indicated it will be
12 completed before the day's over.
13 JUDGE LIU: Well, I see. What's the contents of that? Is there
14 any agreement?
15 MR. WEINER: I haven't seen the letter.
16 Mr. Sachdeva.
17 JUDGE LIU: Yes, Mr. Sachdeva.
18 MR. SACHDEVA: Your Honour, may it please you. There are some
19 issues in the letter that we will not agree with in terms of obligations,
20 disclosure obligations under Rule 68.
21 JUDGE LIU: That's the theoretical issue?
22 MR. SACHDEVA: Exactly. But in terms of informing the Defence
23 when collections are placed on the EDS, as I understand it that is an
24 OTP-wide issue that is being dealt with at the moment. And at this stage
25 the Prosecution will obviously endeavour to inform the Defence when we
1 have placed collections on their specific disclosure suite index. That
2 will be done, Your Honour.
3 JUDGE LIU: Thank you very much. I hope that after this sitting
4 both parties could meet on this issue and try to prevent any filings from
5 the Defence, because we have been troubled, you know, with all those
7 MR. MORRISSEY: Your Honours, we'll -- we will meet with the
8 Prosecutors and we'll try to resolve our differences in a way that
9 doesn't involve the Tribunal in further work. And we acknowledge that
10 there has been a number of filings. We have to say that if you don't
11 file, then we inflict upon the Tribunal --
12 JUDGE LIU: No, no, no. I'm not depriving your right to file
13 anything. I mean that before any filings, the parties should meet
14 together, try to solve it, you know, off the court. If there's, you
15 know, a major problem that you could not solve, we are ready to give the
16 assistance to the both parties.
17 MR. MORRISSEY: Yes. Thank you, Your Honour.
18 JUDGE LIU: Yes.
19 MR. MORRISSEY: Well, I'm grateful for that indication.
20 And next of all, there are some -- some outstanding requests and
21 letters that we have with the Prosecution. I'm grateful to my learned
22 friend Mr. Weiner who responded to me last night concerning some aspects
23 of the 1996 Halilovic statement which is the subject of a motion. But
24 there are still a couple of matters that are of importance, and the ones
25 I want to raise here concern the witness Ramiz Delalic, that there are
1 statements that plainly exist and plainly are out there somewhere and
2 they still haven't been provided to the Defence, and we don't know what's
3 happening with those now, so we need -- we need some sort of answer to
4 that -- that query. So what's outstanding is -- is, if you like, notes
5 of the investigators and -- and the statements themselves.
6 I should hasten to say that we have been provided with some
7 material and we're grateful for the effort that has so far been made, but
8 on the face of things it's quite clear there still are outstanding
9 materials, and so that we need the Prosecutor to tell us what the
10 progress is on those matters.
11 JUDGE LIU: Yes, Ms. Chana.
12 MS. CHANA: May it please Your Honours.
13 In respect of Mr. Delalic's -- what is referred to as "previous
14 statements," the -- the Defence had noted through some investigation and
15 reading of the transcripts of this -- of the statements that somewhere
16 it's stated that there was a 1996 statement. Now, I have already spoken
17 to the Defence about this at length. I have taken the trouble, Your
18 Honours, to ring up the two previous investigators to see if there was
19 any written statement which emerged from the discussions. I have not
20 come to any conclusion because it appears that there isn't one. And I've
21 given the details to the Defence in respect of that, and I'm willing to
22 put it also in a -- in a letter so that --
23 So for us -- for them to now say that there is a previous
24 statement, there simply -- we do not have one in our databanks. I think
25 we can confirm that always subject to a caveat that gets thrown up to us.
1 But there simply -- whatever has been disclosed in respect to Delalic.
2 Your Honours, I also looked into the -- any notes of the
3 investigators, and to that end, although there was a Rule 70 internal
4 documentation of mission reports which the investigators made after they
5 came back, I even disclosed some of those to the Defence, some of the
6 notes that they had taken.
7 So I have in all good faith, Your Honour, made my investigations
8 into this. Of course, I cannot say that they've been absolute. There
9 never is such a thing. But whatever I could find, even to the extent of
10 what I said, lifting Rule 70 and disclosing to the defence some of the
12 It's not a happy situation for the Defence, and I do appreciate
13 that. But as of now we do not have any other statements given to the
14 OTP. If there were contacts made between Delalic and investigators here,
15 we have no further records of it that we can hand over to the Defence.
16 That is the position of the Prosecution with respect of this.
17 Your Honours have a lot of the -- of matters to deal with, and to
18 -- and I think it would be important to put an end to certain issues.
19 And I would like to sort of say that perhaps this might be the time to
20 end this particular issue of Delalic. Wherever it falls, that's where
21 it's fallen. And the Defence will simply have to accept it to the extent
22 that these are the inquiries and these are the fruits of the inquiries
23 which have been hand over to the Defence.
24 JUDGE LIU: Well, it seems to me that there is not much things to
25 fall after shaking the trees on this matter.
1 MR. MORRISSEY: Your Honours, the Defence draws a distinction
2 between the individual Prosecutors and the Prosecution as an institution.
3 We are very grateful for the efforts made by Ms. Chana, and we accept
4 fully that they were made in good faith. What she has put to you about
5 providing us with working notes in an attempt to assist us is entirely
6 accurate, and certainly we are not suggesting that Ms. Chana is behind
7 anything strange that might have happened to this statement.
8 The fact remains we have statements that were taken. There's
9 clear evidence that statements exist, that somewhere they're out there.
10 There's evidence from Mr. Delalic himself that he made a statement to the
11 -- to the OTP.
12 The question of where it is remains a live one because the --
13 there seems to be two possibilities arising out of it that: Perhaps Mr.
14 Delalic was just lying and there was no such statement; or perhaps a
15 subsequent investigator at some stage has interposed himself into the
16 picture. No other explanation appears to -- possible at this point.
17 The Prosecution's good-faith inquiries raise troubling questions.
18 That's the reality. But, Your Honours, all that my friend can do is make
19 the inquiries that she makes, and I acknowledge that there's a certain
20 point at which she can only look once or twice or three times at a
21 particular set of documents. We do not ask you to order her to do more.
22 The Prosecution have clarified the position in court as best they can.
23 It's not the end of the matter. Ramiz Delalic is not going to go away in
24 this trial, I can assure everyone of that.
25 But in any event, my learned friend can't be compelled to do more
1 than what she has now subjectively done. I think she's right to say she
2 has done all she can. We'll -- we're going to make further inquiries of
3 the Prosecutor, however; there's no question about that. However, that
4 seems to put an end to that matter from the Chamber's point of view for
6 The next matter concerns the provision of material to be used by
7 the Prosecutors in cross-examination to the Defence. Now, the
8 Prosecutors are in a different position to the Defence at all times.
9 This Chamber made a decision on the 9th of May, 2005 at which it was
10 said, "The disclosure of material and information by the Prosecution is
11 fundamental to the fairness of the proceedings before the Tribunal. The
12 Trial Chamber therefore endorse it is view that in order to avoid a
13 possible prejudice to the accused, which might result from the
14 Prosecution introducing documents in the cross-examination of a witness
15 which the Defence had never had the opportunity to review, the Prosecutor
16 must bona fide disclose to the accused -" and I'm leaving a passage out
17 there - "to the accused at the earliest available opportunity and at the
18 latest prior to cross-examination any new material it wishes to submit to
19 a Defence witness in cross-examination in order to give the accused due
21 Now, that is another aspect of the same matter I raised with the
22 EDS. Experience shows that it simply isn't enough to place these things
23 on the EDS. These things have got to be explicitly disclosed.
24 If they are on the EDS, we will be satisfied with a short note
25 and an ERN number. These matters in any event ought to be raised with
1 the Prosecutor. As I've indicated, I'm going to discuss with them these
2 matters later. We may need to come back to the Tribunal about that at a
3 future time, but it's to be avoided if we can. So I raise it now. I
4 indicate it's an issue, but we may be able to resolve that. If we can't,
5 however, Your Honour may need or the Tribunal may need to put time limits
6 on that ruling of yours, whether you're going to say 48 hours before, 24
7 hours before, or some other figure. You may be called upon to adjudicate
8 that if we can't agree with the Prosecutors as to a suitable time limit.
9 JUDGE LIU: Yes. I believe we'll have the 65 ter Conference as
10 well as the Defence conference in the future. That might be a good time
11 if you want to bring to our attention on this matter after consultations
12 with the Prosecution.
13 MR. MORRISSEY: Thank you, Your Honour. And of course, it -- it
14 of course has to be noted the Prosecutors can't really do much until they
15 know who we're calling, and we acknowledge that that's a burden for them.
16 So there's nothing they can do today.
17 Finally, the issue of Rule 68 obligations has to be faced in
18 exactly the same context. Now, it's always said it's an ongoing
19 obligation, which it is, of course. But we are now at the end of the
20 Prosecution case, and it's high time that the Prosecutors indicated in a
21 thorough way what the situation is. Should material arise concerning,
22 for example - and I use this just as an example - Ramiz Delalic, then the
23 Defence is placed in a position where we haven't used that in
24 cross-examination, and the sooner we have it, the better. So that we ask
25 the Prosecutors to -- to make a special effort now, rather than have
1 things arise throughout the trial, throughout the presentation of the
2 Defence case.
3 History shows that in some trials the Defence case is provided
4 with a great deal of relevant material to Prosecution witnesses too late
5 during the Defence case. That -- of course it's an ongoing obligation.
6 Sometimes the Prosecutors do find something at a late stage. What we're
7 asking now is that they look very hard now so that belated material does
8 not arise.
9 And in particular I would ask that the Prosecutors indicate now
10 -- so that they are satisfied that they have performed a thorough search
11 and that there is no more Rule 68 material in their possession.
12 JUDGE LIU: Yes. Yes, Mr. Sachdeva.
13 MR. SACHDEVA: Your Honour, just briefly in response to that.
14 The Prosecution continually does update its searches of all materials
15 in-house, so whenever something that arises that is Rule 68 or
16 Rule 66(B), we will, of course, disclose that to the Defence. This is
17 common policy within the OTP. Thank you, Your Honour.
18 JUDGE LIU: I see. I believe this matter is also a subject
19 matter for the parties to discuss. Now we have seen that this issue is
20 flagged in the transcript. So if there's any problem in this aspect, the
21 Bench is ready to help both parties to solve this issue.
22 Yes, Mr. Morrissey.
23 MR. MORRISSEY: Your Honours, that terminates the list of matters
24 that I had to raise.
25 JUDGE LIU: Thank you very much.
1 As Mr -- yes, Mr. Weiner.
2 MR. WEINER: We have one issue of a document that was never given
3 an exhibit number.
4 Mr. Re.
5 JUDGE LIU: Yes.
6 MR. RE: It's MFI 162. Our case manager had just alerted this to
7 us. It wasn't on the list that the court deputy provided to us a few
8 days ago. It's simply a photograph that was shown to a witness Katica
9 Miletic on the 9th of February by the videolink. You may recall we put
10 this on the -- the ELMO and tried to show her, and it didn't actually get
11 an exhibit number. It's at page 20 to 21 of the transcript. So we just
12 seek an exhibit number for that.
13 JUDGE LIU: I believe that it is already admitted into the
15 Mr. Morrissey?
16 MR. MORRISSEY: I -- I can't recall that specific one. I haven't
17 reviewed that transcript.
18 If the document was shown to the witness and if she -- and if she
19 was asked questions about, I -- might I just trouble the Prosecutor to
20 provide me with a hard copy of it? I could just look at it to see if
21 there's any --
22 JUDGE LIU: Yes.
23 MR. MORRISSEY: -- anything ...
24 Your Honours, I think this is one of the documents that was --
25 one of two documents, that this was shown and then another one was marked
1 and each was tendered. I don't have any objection to this. I believe --
2 I think it's in evidence too, Your Honour. But if it hasn't been given a
3 number, I don't -- I don't take it that the Prosecution are tendering it
4 now. They're just seeking that it be given a number, and I don't oppose
6 JUDGE LIU: Yes.
7 THE REGISTRAR: Your Honours, I just checked the database, and I
8 see that 162 is a photo. Can I see the photo. But it has not been
9 admitted. So just to -- to confirm.
10 JUDGE LIU: So we'll make a decision that this document is
11 admitted into the evidence, and the -- and the number will be assigned to
13 THE REGISTRAR: Well, Your Honour, I think the number is 162, so
14 it's just a matter of admitting it.
15 JUDGE LIU: Thank you very much. Thank you.
16 Well, as the Defence counsel said, we are now at the end of the
17 Prosecution's case and as the practice of other Trial Chambers, at this
18 stage or around the time for the 68 bis filings of the Defence, the
19 Prosecution is requested to submit a proofing chart. In this proofing
20 chart, they have to indicate the evidence as to each paragraph in the
22 Now, since the Defence counsel give up their right to activate
23 their 98 bis procedures, in the view of this Bench the Prosecution still
24 have to file a proofing chart to summarise their case. So at this stage,
25 I hope that the Prosecution could file it before the 13th of June, which
1 might be helpful for the Defence to prepare their case. It is so
3 Yes, Mr. Morrissey.
4 MR. MORRISSEY: Yes, Your Honours. I'm grateful for that
6 And might I just say that one thing that would speed up the
7 trial, I imagine greatly, is that if the Prosecutors are able in that
8 proofing chart to indicate where a document is relevant to a particular
9 -- I imagine that's probably part of it anyway, but it's the Defence plan
10 in this case - and I think that's been obvious from the start - to put as
11 many documents and as much of our case as we can through the Prosecution
12 case. And we will double up our documents with the Prosecution to a
13 significant extent. And if the Prosecution are able -- the more specific
14 the Prosecution are about the documents they use and the relevance of
15 those documents, the more focussed we will be able to be about the
16 documents that we put in.
17 But as I indicate, we've put in a lot of documents here. The
18 Prosecution have been very patient in many ways with us in that -- that
19 endeavour. But we will save time if that's done. So I mention that.
20 JUDGE LIU: I believe that's the usual practice in the submission
21 of this proofing chart.
22 Yes. I think that's all for today's hearing, and the hearing is
24 --- Whereupon the hearing adjourned at 12.38 p.m.,
25 to be reconvened on Monday, the 20th day of
1 June, 2005 sine die.