Tribunal Criminal Tribunal for the Former Yugoslavia

Page 5864

 1                          Friday, 28 July 2000

 2                          [Open session]

 3                          --- Upon commencing at 9.35 a.m.

 4            JUDGE RODRIGUES: [Interpretation] Good morning, ladies and

 5    gentlemen; good morning, technical booth; good morning to the

 6    interpreters; good morning, court recorders and legal assistants; good

 7    morning to the Prosecution, Mr. Harmon, Mr. McCloskey, Mr. Cayley; good

 8    morning, Defence counsel, Mr. Petrusic and Mr. Visnjic.

 9            We are here to resume our proceedings in the Krstic case.  I think

10    I'm going to give the floor to the Defence.

11            Mr. Visnjic.

12            MR. VISNJIC: [Interpretation] Mr. President, the Defence should

13    like to notify the Chamber that General Krstic has given written agreement

14    that today's hearing be held in his absence or, rather, he waives his

15    right to be present today, and this statement was handed to the registrar

16    prior to the beginning of the proceedings.

17            JUDGE RODRIGUES: [Interpretation] Are there any reasons of health

18    for this?

19            MR. VISNJIC: [Interpretation] Mr. President, I think there are

20    certain reasons of health.  In view of the most recent events in the past

21    few days, I feel the General feels a bit exhausted.

22            JUDGE RODRIGUES: [Interpretation] Mr. Harmon.

23            MR. HARMON:  Good morning, Mr. President, Your Honours.  Good

24    morning to my colleagues.

25            Mr. President, we're prepared to proceed today.  An accused has a

Page 5865

 1    right to be present at his own trial or he has a right to be absent, and

 2    as long as he makes an intelligent waiver of his right to be present, we

 3    have no objection to proceeding today.

 4            JUDGE RODRIGUES: [Interpretation] We do have a written statement

 5    from General Krstic in which he waives his right to be present, and we

 6    agree, therefore, to continue in his absence.

 7            Madam Registrar, please take the document and give it a number,

 8    please, a Defence exhibit number.

 9            THE REGISTRAR:  The waiver is Defence Exhibit D25.

10            JUDGE RODRIGUES: [Interpretation] So, Mr. Harmon, let us proceed.

11            MR. HARMON:  Mr. President, I would request that we proceed in

12    closed session.

13                          [Closed session]

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 8                          [Open session]

 9            JUDGE RODRIGUES: [Interpretation] The Chamber is issuing today a

10    written decision with the following conclusions:  For reasons which are

11    given in the written decision, the Chamber orders the holding in closed

12    session of a part of the hearings on the 28th of July, 2000.  The exhibits

13    tendered during that part of the hearing and the transcript of that

14    hearing will be kept under seal.  By this decision, the Chamber also

15    orders that the visual recording of the discussions be made public and

16    communicated to the public within one week at 9.30 on the 4th of August,

17    2000, and will be shown in Courtroom III.  It also orders that the

18    exhibits tendered during that hearing and the transcript of that hearing

19    be made public at that time.

20            Therefore, pursuant to the provisions of this ruling, I ask that

21    we go into private session, please.

22                          [Private session]

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20                          [Open session]

21            JUDGE RODRIGUES: [Interpretation] So, we are now in public

22    session.  I wish to repeat that the contents of this hearing, this closed

23    session hearing, will be made public on the 4th of August this year in

24    Courtroom III.  I am saying this so that there should be no

25    misunderstanding.

Page 5875

 1            You will please take note of this, Madam Registrar.  I am waiting

 2    for a reply for the record, please.

 3            THE REGISTRAR:  Yes, it has been noted, actually, that the hearing

 4    will be held next Friday, August 4th, Courtroom III, at 9.30.

 5            JUDGE RODRIGUES: [Interpretation] Very well.  And all the

 6    documents and the proceedings from this hearing remain under seal until

 7    that day, so we understand one another very well now.

 8            So I think we have two more problems to address, Mr. Harmon.  That

 9    is the question of the admission of certain documents into evidence, and

10    after that another question, and that is the Status Conference, and I

11    should like to hear the views of the Defence specifically.

12            So Mr. Harmon, first regarding the first point.

13            MR. HARMON:  Mr. President, and Your Honours, good afternoon.  We

14    are concluding our case today, and in reviewing all of the exhibits and

15    the status of all of the exhibits, many of them have to be regulated in

16    terms of their present status, whether they're under seal or not under

17    seal.  This task, I might add, is a Herculean task that my colleague

18    Kirsten Keith has put in a great deal of time and effort in trying to

19    resolve all of these problems, and for that I and the trial team are

20    firmly indebted.

21            Let me say that, if I could suggest a procedure, and to resolve

22    this expeditiously today, there are literally hundreds of exhibits that I

23    must comment on, and rather than do that and remain here until Saturday or

24    possibly Sunday, I have created additional exhibits which --

25            JUDGE RODRIGUES: [Interpretation] Don't do that to us, Mr. Harmon.

Page 5876

 1            MR. HARMON:  Well, I've created additional exhibits which

 2    summarise what needs to be done, and the status of these exhibits.  So I

 3    understand, Your Honours, that these exhibits have been distributed to

 4    Your Honours.  They're on the bench, and that I've already provided a copy

 5    of these exhibits to my colleagues from the Defence.

 6            And if I could start with Prosecutor's Exhibit 722, again, this

 7    touches upon a problem of translation.  I'm indebted to my colleagues from

 8    the Defence.  They speak the language; they are able to notice certain

 9    errors that have appeared in translations in exhibits that have been

10    tendered by the Prosecutor's Office.  They advised me of that.  I

11    submitted -- we've both submitted jointly to the Language Service section

12    a request that these documents be reconsidered.  And you will find, Your

13    Honours, in Prosecutor's Exhibit 722 a list of numbers which I will

14    explain in Prosecutor's Exhibit 722 what they represent.

15            There are two columns.  The first column, we'll start with 302/1A

16    bis.  The original Exhibit was 302/1A, and it has been corrected now by

17    the Language Service section.  So we're tendering in its place 302/1A

18    bis.  And that very same exhibit appeared in other volumes of exhibits

19    that we had also tendered, and we have now substituted the correction at

20    each relevant place in those other volumes of exhibits.  So the very same

21    intercept that is the subject of 302/1A bis now finds corrections in

22    Prosecutor's Exhibit 364 at the tab 14 July/9 bis, so a corrected version

23    has been inserted at that location, and a corrected version is now -- and

24    the same intercept is found at 559/A bis.  So Prosecutor's Exhibit 722

25    then represents where the corrected translations of the intercepted

Page 5877

 1    communications are found throughout the body of Prosecution evidence.

 2            I would note only the second to last entry from the bottom, 343/1A

 3    bis.  The three corrected versions found in volume 364, 12 July/tab 13 bis

 4    and 444/A bis, those exhibits must remain under seal.  All the other

 5    corrected versions do not have to be under seal.

 6            The next exhibit, set of exhibits I'd like to present to Your

 7    Honours is found in the Prosecutor's Exhibit 374.  These are other

 8    revisions to translations.  There are three items listed on this exhibit,

 9    and these are revisions to English language only exhibits.  They have been

10    identified in Prosecutor's Exhibit 734.

11            Prosecutor's Exhibit 735 is a five-page -- I'm sorry.  It should

12    be a four-page document, and this represents a list of French and B/C/S

13    translations for exhibits that have previously been tendered in the

14    English language only.  The exhibit numbers are listed, and it is, as I

15    say, four pages long.

16            The next exhibit is Prosecutor's Exhibit 736.  It represents a

17    five-page list of exhibits, of Prosecutor's exhibits that have been

18    tendered since 19 June 2000, and these specific exhibits contained in this

19    Prosecutor's Exhibit 736, we're requesting that each of these exhibits be

20    placed under seal.

21            The next exhibit I would like to refer the Court to is

22    Prosecutor's Exhibit 737 and Prosecutor's Exhibit 738.  These are -- the

23    first is Prosecutor's Exhibit 737, is a one-page exhibit, and Prosecutor's

24    Exhibit 738 is a 19-page exhibit.  Specifically, Prosecutor's Exhibit 738

25    is a list of exhibits that are contained in a two-volume set, Prosecutor's

Page 5878

 1    Exhibit 364.  The purpose of submitting both of these exhibits is to

 2    request that these exhibits which are presently protected by the seal of

 3    the Court be removed from that protection.

 4            Turning to another list, which is Prosecutor's Exhibit 394 bis,

 5    this is a list of exhibits that were tendered through the testimony of

 6    Richard Butler, and this is a list -- we would ask that Prosecutor's

 7    Exhibit 394 bis be substituted for Prosecutor's Exhibit 394, which is

 8    currently under seal.

 9            JUDGE RODRIGUES: [Interpretation] Mr. Harmon, in relation to this

10    Exhibit 394, I think we still need to render a decision regarding this

11    exhibit.  I'm talking -- if my memory serves me.

12            MR. HARMON:  Before I then offer this particular exhibit, I'll

13    wait for the decision of the Chamber.  Let me withdraw that at this

14    point.

15            JUDGE RODRIGUES: [Interpretation] Yes.  Very well.

16            MR. HARMON:  In addition to these summaries of exhibits and what

17    their status is, we have some new exhibits to tender.  One is an exhibit

18    which is a report of Mark Mills, who was an expert on watches.  It was a

19    reference earlier during the testimony of some of the Prosecutor's experts

20    who testified about their findings in exhumations.  We will be tendering

21    this expert report, which will be Exhibit 210, and a table 210/A, as

22    exhibits.  The expert report of Mr. Mills was filed pursuant to

23    Rule 94 bis on January the 6th, 2000, and the Defence agreed to accept the

24    conclusions of that report orally -- it wasn't -- their response wasn't in

25    writing -- on the 7th of February, 2000.  So we would tender Mark Mills'

Page 5879

 1    report and the accompanying table as a new exhibit.

 2            Moving on to the next new exhibit that we have, the Prosecutor's

 3    Office had previously tendered a film as an exhibit.  It's Prosecutor's

 4    Exhibit number 3.  We are now tendering for the Court's consideration the

 5    translations of that film in French, English, and B/C/S.  Prosecutor's

 6    Exhibit 3A will be the English transcript of that film, Prosecutor's 3B

 7    will be the B/C/S transcript of the film, and 3C will be the French

 8    transcript of the film.

 9            JUDGE RODRIGUES: [Interpretation] I think that we don't have that

10    exhibit on our table.

11            MR. HARMON:  We have -- Mr. President, we have those exhibits

12    here, and rather than pass each one of those up, if I could --

13            JUDGE RODRIGUES: [Interpretation] Please proceed.

14            MR. HARMON:  The Prosecutor's Office also submitted a film.  It's

15    Prosecutor's Exhibit 148.  It's a film of a Dutch APC in a ditch and

16    various Bosnian Serb soldiers and officers standing around in that film.

17    We now have translation or transcript from that film.  We are tendering,

18    therefore, Prosecutor's Exhibit 148A, an English transcript; 148B, a B/C/S

19    transcript; and 148C, a French transcript.

20            Our next exhibit, Mr. President, are certain -- are Prosecutor's

21    Exhibits 112 through 115.  These are summaries of news accounts from

22    various news sources.  The summaries are from the Fibus reporting

23    service.  They're Exhibits 112 to 115.  I have shown copies of these

24    exhibits to the Defence.  They have no objection to their presentation.

25            The next exhibit that we will be offering to the Court is a graph,

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Page 5881

 1    and I refer the Trial Chamber to Prosecutor's Exhibit 232.  Prosecutor's

 2    Exhibit 232 was introduced by Mr. Jose Baraybar, and when Mr. Cayley was

 3    examining Mr. Baraybar about that particular exhibit -- and his

 4    examination of Mr. Baraybar is found in the English-language version of

 5    the transcript at pages 3806 through 3808 -- Mr. Cayley asked Mr. Baraybar

 6    if he had made an arithmetical error in his calculations as to a certain

 7    chart, and Mr. Baraybar acknowledged that there had been an error and that

 8    that error was shown in a chart of his report.

 9            We are now submitting to the Trial Chamber that an error was

10    repeated in a graph that was also found in Baraybar's report, and we're

11    offering the corrected version of the graph that is consistent with the

12    corrected version of the chart.  So that will be a new exhibit.

13            Lastly, Mr. President, we had before the Court, during the

14    testimony of Mr. Helge Brunborg, submitted to the Court two large

15    dossiers, one -- lists, I should say, of persons who are missing from

16    Srebrenica.  One was prepared by the ICRC, which was Prosecutor's

17    Exhibit 270; and one was prepared by the ICTY by mister -- I should say by

18    Mr. Brunborg himself, Prosecutor's Exhibit 271.

19            We had tendered that exhibit on the 1st of June, 2000, and

20    admission of that exhibit was deferred for one month pending an

21    opportunity of the Defence to study and examine that particular exhibit.

22            We are now tendering that exhibit.  I have consulted with my

23    colleagues from the Defence and I defer to them to inform you, but they

24    are in agreement now or I should say they have no objection to it now

25    being admitted into evidence.

Page 5882

 1            And that concludes my submissions on these exhibits, with the

 2    exception of Prosecutor's Exhibit 394.

 3            JUDGE RODRIGUES: [Interpretation] Thank you very much,

 4    Mr. Harmon.  Two observations.  I think you should share your salary with

 5    the Defence because they have helped you a lot; and we registered the good

 6    mathematical talents of Mr. Cayley; and a third point, we're going to give

 7    the floor to the Defence, and I'm going to ask Defence counsel whether

 8    they wish to go exhibit by exhibit or are you in a position to make your

 9    point regarding the whole set?

10            MR. VISNJIC: [Interpretation] Mr. President, we shall try to be

11    very expeditious.  Regarding Exhibit 271, which is Mr. Brunborg's report,

12    our deadline was the 30th of June to see whether we would have any

13    objections regarding that exhibit, and I must say that until that date our

14    investigations did not reveal any circumstances that would prompt us to

15    make any objections here in Court.  Therefore, we have no objections

16    regarding that exhibit; but we would like to reserve the right if, in the

17    course of our further investigations, we should discover any circumstances

18    related to this exhibit, that we present those facts that we uncover as a

19    result of our investigations to the Trial Chamber.

20            JUDGE RODRIGUES: [Interpretation] Mr. Harmon, in relation to the

21    reservation expressed by the Defence?

22            MR. HARMON:  We certainly have no objection to their presenting

23    any evidence that would conflict with our exhibits.

24            JUDGE RODRIGUES: [Interpretation] I think we can already give you

25    an answer, that the Chamber will admit into evidence this Exhibit 270 and

Page 5883

 1    271, that is, the Brunborg report.

 2            MR. VISNJIC: [Interpretation] Mr. President, regarding the other

 3    exhibits, we have a very brief comment to make, and that is that we have

 4    no objection.

 5            JUDGE RODRIGUES: [Interpretation] Are you going to ask an addition

 6    to your salary, Mr. Visnjic?

 7            So, Madam Registrar, have you taken note of all these documents?

 8    You have fully understood what we need to do with those documents, that

 9    is, which are the corrections, which are the documents that need to be

10    admitted under seal, which are the documents that should be removed from

11    being kept under seal, the report of Mr. Brian Mills, the expert, the

12    summaries of the Fibus reporting service, and the report by Jose Baraybar

13    under the guidance of Mr. Cayley.  Have you understood all that?

14            THE REGISTRAR:  Yes, I have, and I will be asking the Prosecution

15    for part of their salary also.

16            JUDGE RODRIGUES: [Interpretation] Thank you very much.  So I think

17    we're really coming to an end in a good mood, and that is a good thing

18    when we come to the end of something.  We are tired, but in a positive

19    mood.

20            I now take another point that I would like to address.

21    Mr. Petrusic and Mr. Visnjic, I should like to propose to you for your

22    consideration the 5th, the week of the 5th to the 9th of September and/or,

23    we will see, the week from the 2nd to the 6th of October to have a Status

24    Conference in preparation of the Defence case pursuant to Rule 65 ter,

25    paragraph "D", "J" -- I'm sorry, "G" as in "gateau," cake.  Okay.

Page 5884

 1            And when I was saying that I was suggesting these two dates, it is

 2    to have a Status Conference and also a pre-trial case, conference, so that

 3    we can have a conference prior to the Defence case on the same day or the

 4    same week.  In any event, we're open to the suggestion of any other date

 5    that may suit you because I know that you will be very busy, but this also

 6    is part of your work.

 7            MR. VISNJIC: [Interpretation] Mr. President, as far as I

 8    understand it, you have offered us two dates, 2 to the 5th of September

 9    and 2 to the 6th of October.  Does it mean we can choose between the two?

10            JUDGE RODRIGUES: [Interpretation] Yes.  We're giving you two weeks

11    to choose a day for a Status Conference and a Pre-trial Conference, if

12    there's not too much to do, or one day for a Status Conference and another

13    day for the conference.

14            What we need to consider is the provisions of Rule 65 ter and 73

15    ter.  You can examine the rules and tell us which is the date that suits

16    you, but bearing in mind the fact that we intend to resume proceedings

17    with the Defence case on the 16th of October.  Therefore, before the

18    beginning of the Defence case, we need to fulfil all the conditions

19    envisaged in Articles 65 ter and 73 ter, Rules, these Rules that I have

20    already mentioned.

21            MR. VISNJIC: [Interpretation] Mr. President, may we be given a few

22    days before we give you an answer?  Do we need to make a choice today, or

23    may we notify the registrar or the Prosecution subsequently?

24            JUDGE RODRIGUES: [Interpretation] That is quite possible.  I am

25    suggesting these dates, and we are ready to consider another date.  The

Page 5885

 1    only thing that you need to do is to bear in mind that all these steps

 2    need to be taken in accordance with these rules, 65 ter and 73 ter.  So I

 3    think you can communicate with the legal officer of the Chamber who will

 4    be here before us, I think, or through the registrar; but the legal

 5    assistant of the Chamber will always be here, Mr. Fourmy.

 6            MR. VISNJIC: [Interpretation] Thank you very much, Mr. President.

 7    We will certainly fit into one of the dates that you have suggested.

 8            JUDGE RODRIGUES: [Interpretation] Fine.  I think there is one more

 9    matter to deal with.  My dear colleague Judge Wald has drawn my attention

10    to it, and that is the Exhibit 394.

11            I think that I have mentioned that it was not quite clear to the

12    Chamber what was the position regarding the motion to admit certain

13    documents under seal which were part of the exhibit.  Perhaps I could ask

14    the Defence.

15            I see that Mr. Harmon was about to stand to say something.

16            MR. HARMON:  Your Honour, the list of exhibits under 394 was under

17    seal because there were certain areas that were sensitive, and therefore

18    that, as I understood, was the -- one of the objections, and I'll let,

19    obviously, the Defence state any other objections, but one of the reasons

20    it was under seal was because of what was contained in the summary.

21            JUDGE RODRIGUES: [Interpretation] I think we can reorganise this

22    exhibit.

23            In any event, Mr. Visnjic, do you have any objections in relation

24    to this exhibit?  We know that you have an objection of substance.

25            MR. VISNJIC: [Interpretation] Mr. President, no new elements

Page 5886

 1    except -- aside from those presented by my colleague Mr. Petrusic.

 2            JUDGE RODRIGUES: [Interpretation] In that case, the Chamber will

 3    render its decision regarding this Exhibit 394 bis now.

 4            The Prosecutor has requested the admission into evidence of the

 5    exhibits listed in Exhibit 394 bis.  The Defence objected to the admission

 6    of certain exhibits, giving the same grounds as those presented when

 7    objecting to the admission of radio intercepts which were the object of

 8    the ruling of this Chamber on the 27th of June, 2000.

 9            Having heard the parties and reviewed the exhibits, and there were

10    motives for the objections, the Chamber rules, bearing in mind Articles

11    97(C) and 94, Rule 94 of the Rules of Procedure and Evidence, to grant the

12    request of the Prosecutor and orders the admission into evidence of all

13    the exhibits as requested.

14            That is the decision of the Chamber.  Mr. Harmon.

15            MR. HARMON:  Mr. President, in view of the Court's decision, then

16    I renew my -- I would retender then Prosecutor's Exhibit 394 bis, which is

17    a list of the exhibits contained in 394, but it is a list without the

18    summary, and we would ask that this be substituted or the previous list

19    with the summary was under seal.  We would ask that that remain under

20    seal, and this, without the sources does not have to be under seal.  So we

21    are tendering then this Exhibit 394 bis, for your consideration as well.

22    And with that final exhibit, then we would rest our case, Mr. President.

23    Thank you.

24            Thank you Your Honours, and we wish Your Honours a good vacation,

25    and the same to our colleagues and to the staff and everybody who has

Page 5887

 1    helped us in this case.  Thank you.

 2            JUDGE RODRIGUES: [Interpretation] Mr. Visnjic, have you any

 3    objection to the admission into evidence of this exhibit?

 4            MR. VISNJIC: [Interpretation] Mr. President, the Chamber has

 5    already admitted those exhibits into evidence, so we have no objections.

 6    I should like to take advantage of this opportunity to make a request, as

 7    the Chamber is in full -- present in full, and if this might happen a few

 8    days later, perhaps the Chamber will not be able to rule.

 9            The Defence will, in the ensuing period consider whether to submit

10    a proposal in line with the provisions of 98 bis (A), according to which a

11    seven-day time period is envisaged from the end of the Prosecution case

12    but, in any event, prior to the beginning of the Defence case.

13            In view of the fact that in the last few months we have received a

14    large number of documents from the Prosecution, we will take -- we will

15    need some time to make a decision about this.  So I wanted to take

16    advantage of this opportunity, in accordance with Rule 127, to make a

17    request to the Trial Chamber for a prolongation of the time period from

18    98 bis, and I would suggest that it be until this week of the 5th to the

19    9th of September that I see that the Chamber has offered as a possibility

20    and when the Chamber will be present in its full composition.  Thank you.

21            JUDGE RODRIGUES: [Interpretation] Thank you very much,

22    Mr. Visnjic.  The exhibit mentioned by the Prosecutor is admitted into

23    evidence.

24            Mr. Harmon, in relation to this request by Mr. Visnjic, what is

25    your comment?

Page 5888

 1            MR. HARMON:  We have no objection to this, Mr. President.

 2                          [Trial Chamber deliberates]

 3            JUDGE RODRIGUES: [Interpretation] In relation to the request just

 4    made by the Defence counsel orally, in view of the fact that there is no

 5    objection on the part of the Prosecution and bearing in mind the interests

 6    of justice and pursuant to the provisions of Article -- Rule 98 bis and

 7    Rule 127 of the Rules of Procedure and Evidence, the Chamber decides to

 8    grant an extension of the time limit mentioned in Rule 98 bis until the

 9    9th of September, 2000.  That is the decision of the Chamber.

10            It should also be said now that the Prosecutor has completed its

11    case today, the 28th of July.

12            That also brings to an end this session, 20 minutes over the time

13    that we had wished, but I think that we can all agree that though we have

14    worked a lot and we are indeed tired, I think we're all looking forward to

15    a holiday, nevertheless, we have had some humour and this is necessary to

16    invigorate us and motivate us.

17            So for the moment, I think I can speak on behalf of my

18    colleagues.  We would like to wish you a good holiday and a good rest,

19    because after the holiday -- of course there will be people working during

20    the holiday, but after the holiday, there is other work waiting for us.

21    So we must be well prepared for that work.

22            We have reached one objective that we set ourselves, and that is

23    the termination of the presentation of evidence by the Prosecutor.  I

24    think I need to express appreciation to everyone for the work they have

25    done, for the cooperation demonstrated between the parties, and the

Page 5889

 1    readiness of all staff members here present in the courtroom and outside

 2    the courtroom, but also looking at the courtroom, the interpreters, the

 3    audio-visual booth, for their readiness to work extra time, which was

 4    always done with a smile.

 5            So have a good holiday everyone, and success in the work of those

 6    who have to do that.  If both can be mixed, perhaps the results will be

 7    best.  I don't remember the date any more but, anyway, we will meet again

 8    as noted in the transcript.  So au revoir have a good holiday.

 9                          --- Whereupon the hearing adjourned sine die

10                          at 3.24 p.m.