Case No.: IT-98-33-A

IN THE APPEALS CHAMBER

Before:
Judge Theodor Meron, Presiding
Judge Fausto Pocar
Judge Mohamed Shahabuddeen
Judge Mehmet Güney
Judge Wolfgang Schomburg

Registrar:
Mr. Hans Holthuis

Decision of:
19 November 2003

PROSECUTOR

v.

RADISLAV KRSTIC

_______________________________________________________

DECISION ON THE ADMISSIBILITY OF MATERIAL PRESENTED BY THE PROSECUTION IN REBUTTAL TO RULE 115 EVIDENCE ADMITTED ON APPEAL

_______________________________________________________

Counsel for the Prosecution:

Mr. Norman Farrell

Counsel for the Defence:

Mr. Nenad Petrusic
Mr. Norman Sepenuk

 

1. On 5 August 2003, the Appeals Chamber admitted as additional evidence under Rule 115 of the Rules of Evidence and Procedure of the Tribunal three documents and a witness statement presented by the Defence.1 Pursuant to Rule 115(A), the Prosecution seeks to present material to rebut the admitted evidence.2 The material the Prosecution seeks to admit consists of fourteen documents and statements by two witnesses.

Governing Legal Standards

2. The Prosecution argues that “rebuttal material is that which contradicts, opposes or limits the alleged fact that the applicant is putting forward.”3 The Appeals Chamber prefers to adhere to the test which it previously articulated . As the Appeals Chamber has recently held in Blaskic, “rebuttal material is admissible if it directly affects the substance of the additional evidence admitted by the Appeals Chamber.” 4 Rebuttal material which merely bolsters the case presented by the Prosecution at trial, without more, or which generally relates to an issue on appeal, without more, is not admissible.

Prosecution’s Documentary Evidence

3. The Prosecution submitted fourteen items of documentary evidence to rebut the three documents admitted by the Appeals Chamber.5 These documents are reports by an official in the Ministry of Interior to various entities of Republika Srpska. The Defence introduced these reports to show that , by 13 July 1995, General Mladic had bypassed the normal chain of command in the Drina Corps and delegated to the Ministry of Police and the Main Staff of the Republika Srpska army the task of killing the Bosnian Muslim soldiers in Srebrenica. According to the Defence, these reports cast some doubt on the Trial Chamber’s finding that the forces of the Ministry of Police carried out the executions in cooperation with , or with the knowledge of, the Drina Corps and General Krstic.6

4. The Trial Chamber considered extensive evidence on the Defence’s argument that General Mladic bypassed the normal chain of command and vested the Serbian security and intelligence organs with exclusive responsibility for the Bosnian Muslim prisoners of war.7 As the Trial Chamber acknowledged , this was a key issue in the determination of whether General Krstic had knowledge of the crimes committed in the Drina Corps’ area of responsibility.8 The Trial Chamber concluded that the evidence “demonstratSedC close co-ordination and co-operation” between the units of the Ministry of Interior and the Drina Corps, and that “due to their massive nature and the level of co-operation and co-ordination required, the executions could not have been accomplished in isolation from the Drina Corps Command.”9 The Trial Chamber expressly rejected the Defence argument that there existed a parallel chain of command , concluding that “following the take-over of Srebrenica, the Drina Corps Command continued to exercise command competencies in relation to its subordinate Brigades and that this command role was not suspended as a result of the involvement of the VRS Main Staff, or the security organs, in the Srebrenica follow-up activity.”10

5. On the documents submitted by the Prosecution, those contained in Annexes 1-7 , 11 and 14 to the Prosecution’s Notice satisfy the standard for the admission of rebuttal material. These documents “directly affect the substance of the additional evidence admitted by the Appeals Chamber.”11 The document contained in Annex 3 comes from the author of the documents admitted by the Appeals Chamber; the document contained in Annex 1 is an order from the Acting Minister of Interior of Republika Srpska directing a special unit of the Ministry to make contact with General Krstic; and the documents contained in Annexes 2-7, 11 and 14 are reports either received or authored by General Krstic or other officials in the Drina Corps command which tend to connect General Krstic to the operation to kill the escaping Bosnian Muslim men.12

6. The remaining documents submitted by the Prosecution (Annexes 8-10, 12 and 13 ) are various reports from General Krstic. For some of these documents, the Prosecution identified no direct connection between the documents and the substance of the Defence evidence admitted by the Appeals Chamber. Other documents reveal information similar to that contained in other rebuttal material already admitted by the Appeals Chamber. These documents are therefore rejected.

Prosecution’s Witnesses

7. The Prosecution seeks to present evidence given by Mr. Momir Nikolic and Mr. Dragan Obrenovic in the case of Prosecutor v. Blagojevic, IT-02-60 -T.13 This evidence is introduced to rebut a statement by a Defence witness admitted by the Appeals Chamber.14 The Prosecution also wishes to cross-examine the Defence witness in question and to introduce other statements made by this witness for the purpose of impeaching his evidence.15

8. The evidence introduced by the Defence is a statement made by an officer of the Zvornik Brigade to the Office of the Prosecutor. The Defence argued that the evidence refutes the Trial Chamber’s conclusion that the Drina Corps command or General Krstic was aware of the activities carried out by the military police units, and that it showed instead that these units acted for the Main Staff independently of the normal chain of command.16

9. The witnesses whose evidence the Prosecution seeks to admit were both officers of the Drina Corps, and held positions superior to that of the Defence witness. Mr. Nikolic was Chief of Security and Intelligence of the Bratunac Brigade, which was directly subordinate to the Drina Corps Command, while Mr. Obrenovic was Deputy Commander and Chief of Staff of the Zvornik Brigade.17 These witnesses, as the Prosecution argues, are likely to have a greater knowledge of whether a parallel chain of command which excluded the military officials of the Drina Corps existed, whether the Ministry of Interior were operating independently of the Drina Corps in the liquidation of Bosnian Muslim prisoners, and whether General Krstic had knowledge of this operation.18 These are the issues to which the Defence evidence admitted by the Appeals Chamber is directed. The evidence of Mr. Nikolic and Mr. Obrenovic directly affects the substance of the admitted additional evidence, and is therefore admissible in rebuttal.19

10. The Prosecution also requests permission to cross-examine the Defence witness whose statement the Chamber admitted into additional evidence on 5 August 2003. The Prosecution raised credible arguments concerning the reliability of the Defence witness’s statement, supporting its claim with allegedly inconsistent statements made by the witness on previous occasions.20 Given the Prosecution’s showing that the veracity of admitted evidence may be questionable , and notwithstanding the Defence’s waiver of direct examination of the witness,21 the Appeals Chamber, pursuant to Rule 98, sentence 2, and Rule 107, orders that the Defence witness be made available during the evidentiary hearing for cross-examination by the Prosecution. The scope of the cross-examination will be limited to the scope of the admitted statement.

Disposition

The Appeals Chamber ORDERS as follows:

(1) The evidence included in Annexes 1-7, 11 and 14 to the Prosecution’s Notice is admitted as rebuttal material. The evidence included in Annexes 8-10, 12 and 13 is rejected.

(2) The evidence of Mr. Nikolic and Mr. Obrenovic is admissible as rebuttal material. These witnesses are ordered to be present at the evidentiary hearing on 21 November 2003 and (if needed) on 24 November 2003. If the witnesses wish so, their counsel may be present during the testimony.

(3) The witness whose evidence constitutes Tab 5 in the Annex to the Rule 115 Defence Motion to Present Additional Evidence, filed on 10 January 2003, and which was admitted by the Appeals Chamber on 5 August 2003, is ordered to be present at the evidentiary hearing on 21 November 2003 and (if needed) on 24 November 2003. The Prosecution is permitted to conduct a cross-examination of the witness. The scope of the cross-examination shall be limited to the scope of the statement admitted into additional evidence.

 

Done in both English and French, the English text being authoritative.

_____________
Judge Theodor Meron
Presiding

Dated this 19th day of November 2003,
At The Hague,
The Netherlands.

[Seal of the Tribunal]

1 - Prosecutor v. Krstic, IT-98-33-A, Decision on Applications for Admission of Additional Evidence on Appeal, 5 August 2003 (“Krstic Rule 115 Decision”).
2 - Prosecutor v. Krstic, Prosecution’s Notice and Filing of Rebuttal Evidence and Arguments in Compliance with the Appeals Chamber’s Scheduling Order, 3 October 2003 (“Prosecution’s Notice”); Prosecution’s Further Notice and Filing of Rebuttal Evidence and Arguments in Compliance with the Appeals Chamber’s Scheduling Order, 20 October 2003 (“Prosecution’s Further Notice”).
3 - Prosecution’s Notice, para. 12; Prosecution’s Further Notice, para. 12.
4 - Prosecutor v. Blaskic, IT-95-14-A, Decision on Evidence, 31 October 2003, at 5.
5 - These reports are contained in Tabs 1, 2 and 3 in the Annex to the Rule 115 Defence Motion to Present Additional Evidence, filed on 10 January 2003.
6 - Rule 115 Defence Motion to Present Additional Evidence, 10 January 2003, paras 6, 10.
7 - See Prosecutor v. Krstic, It-98-33-T, Judgement, 2 August 2001, paras 264-275.
8 - Ibid., para. 263.
9 - Ibid., paras 276, 289.
10 - Ibid., para. 276.
11 - Blaskic, Decision on Evidence, 31 October 2003, at 5.
12 - The Defence questions the authenticity of General Krstic’s signature on the document contained in Annex 7. The Prosecution, in turn, seeks an opportunity to respond. Prosecution’s Motion to Disallow Opinion of Appellant’s Military Expert, Request for Leave to Address Recent Challenges to Admissibility of Rebuttal Documents, and Notice of Position on Outstanding Evidentiary Issues, 12 November 2003, para. 14. The Appeals Chamber is satisfied that the document possesses sufficient indicia of authenticity to meet the threshold test of admissibility under Rule 115. The parties may address the authenticity of this document during the hearing of the appeal.
13 - The Prosecution informed the Appeals Chamber that it intends to present the evidence given by Mr. Nikolic and Mr. Obrenovic in documentary form, pursuant to Rule 89(F) and Rule 92bis, and that it will not conduct a direct examination of the witnesses. Prosecution’s Motion to Disallow Opinion of Appellant’s Military Expert, Request for Leave to Address Recent Challenges to Admissibility of Rebuttal Documents, and Notice of Position on Outstanding Evidentiary Issues, 12 November 2003, para. 23.
14 - This statement is contained in Tab 5 in the Annex to the Rule 115 Defence Motion to Present Additional Evidence, filed on 10 January 2003. The Prosecution also requests we reconsider our decision to admit the evidence given by this Defence witness. Prosecution’s Notice, para. 55. We decline to revisit our earlier decision.
15 - Prosecution’s Notice, para. 58.
16 - Rule 115 Defence Motion to Present Additional Evidence, 10 January 2003, paras 12, 15-17.
17 - Prosecution’s Further Notice, paras 5-7.
18 - Ibid., paras 9, 18-77.
19 - The Prosecution requests that the Appeals Chamber admit into evidence the document contained in Annex 10 to Prosecution’s Notice as rebutting the Defence witness statement admitted into additional evidence. For reasons given earlier, the Chamber rejects this request.
20 - Prosecution’s Notice, paras 58-59.
21 - Notice Regarding Summoning a Witness, filed confidentially on 2 October 2003.