The International Criminal Tribunal for the Former Yugoslavia

Case No.IT-96-21

  1. 1 Thursday, 6th November 1997

    2 (10.00 am)

    3 JUDGE KARIBI-WHYTE: Good morning, ladies and gentlemen.

    4 Can we have the appearances?

    5 MR.. NIEMANN: If your Honour pleases, my name is Niemann and

    6 I appear with my colleagues Mr. Turone, Ms. McHenry and

    7 Mr. Khan for the Prosecution.

    8 JUDGE KARIBI-WHYTE: Can we have the Defence appearances?

    9 MS. RESIDOVIC: Good morning, your Honours, I am Edina

    10 Residovic, Defence counsel for Mr. Zejnil Delalic, along

    11 with my colleague, Mr. Eugene O'Sullivan, professor from

    12 Canada. Thank you.

    13 MR.. OLUJIC: Good morning, your Honours, I am Zeljko Olujic,

    14 Defence counsel for Mr. Zdravko Mucic, along with my

    15 colleague, Michael Greaves.

    16 MR.. KARABDIC: Good morning, your Honours, I am Salih

    17 Karabdic, attorney from Sarajevo, Defence counsel for

    18 Mr. Hazim Delic, along with Mr. Thomas Moran, attorney

    19 from Houston, Texas.

    20 MR. ACKERMAN: Good morning, your Honours, I am John

    21 Ackerman. Cynthia McMurrey and I appear here today on

    22 behalf of Mr. Esad Landzo. Thank you very much.

    23 JUDGE KARIBI-WHYTE: Thank you very much. I am very sad to

    24 announce this morning on behalf of the Tribunal as a

    25 whole and members of the Trial Chamber the passing away

  2. 1 yesterday night of Judge Li, one of the judges of this

    2 Tribunal, at the age of 91. His age has not been of any

    3 effect to his excellent performance. At 91, his

    4 thinking is as clear as when he first did his degree in

    5 1922. He is one of the most energetic human beings

    6 I have come across. He has been with us all along, he

    7 is a foundation member of the Tribunal, and was all

    8 through the formulation of the Rules and in every aspect

    9 of the regulations, a participant in almost all the

    10 committees set up for considering all of the regulations

    11 we are using in this Tribunal.

    12 Incidentally, he is not -- he did not seek

    13 re-election, he had decided not to continue, but suddenly

    14 he got ill and was in a local hospital here. The last

    15 information we heard was that he was recovering and

    16 things were going fine, but all of a sudden, this

    17 morning when I came to work, I got information that he

    18 had died. In certain respects, for people of that age,

    19 it is not too surprising, but in contrast, a person of

    20 his energy and willingness to work and assist, it is a

    21 little surprising. We will hear a few things: he used

    22 to exercise every morning, take a cold bath, so in every

    23 respect he was much fitter than his age, but

    24 unfortunately this is what has happened to us.

    25 We miss him very, very dearly, even if he has to

  3. 1 leave us in this way. We knew he would, but at least

    2 while he was with us, he was a very close friend, very

    3 good companion and helpful in every way in which a

    4 colleague can be helpful. I should inform the Trial

    5 Chamber and the participants here of our sorrow this

    6 morning. He has his family here, and we hope every

    7 arrangement might be made to enable them to get back to

    8 China.

    9 The Trial Chamber would wish us to have at least a

    10 minute's silence in his honour before we continue the

    11 deliberations of this morning.

    12 May this gentleman so rest in perfect peace.

    13 MR. NIEMANN: On behalf of the Prosecution, we would also

    14 wish to express our condolences in the very sad

    15 departure of Judge Li. We knew of him fondly as a great

    16 jurist, a man of great skill and dedication to the rule

    17 of law, and to ensure that all parties accused would

    18 receive a fair and just trial. His untimely departure

    19 is indeed sad.

    20 JUDGE KARIBI-WHYTE: Thank you very much.

    21 MR. MORAN: Your Honour, while I never had Judge Li, I did

    22 see him around and I read his opinions, which I think

    23 are -- they are such well written opinions, well thought

    24 out opinions and to see him in the condition -- physical

    25 condition at age 91, it is amazing. He was an amazing

  4. 1 person and a great jurist and I think on behalf of all

    2 of the Defence we wish his family well and give them our

    3 personal condolences.

    4 JUDGE KARIBI-WHYTE: Thank you very much, Mr. Moran.

    5 MR. ACKERMAN: Your Honour, I just want to say that your

    6 announcement this morning reminds us all once again,

    7 I think, of the transitory nature of this life and how

    8 at any moment it is unpredictable. Our life will be

    9 judged. Without further ado, I know that those who knew

    10 Judge Li well will miss him a great deal. I think all

    11 of us as we sit here this morning would wish that we

    12 could have the long life that he had and maintain the

    13 pure brilliance that he maintained through all of his 91

    14 years. Thank you.

    15 JUDGE KARIBI-WHYTE: Thank you very much, Mr. Ackerman.

    16 Yes, Mr. Niemann?

    17 MR. NIEMANN: Yes, your Honours. Your Honours, my submission

    18 will be complete, I hope, in about 30 minutes. I have

    19 not much more to say in relation to these matters.

    20 We have considered the remarks of your Honours in

    21 relation to the question of the miscounting of the

    22 videotapes. I have certain parts of the transcript that

    23 I can take your Honours to, which I wish to take

    24 your Honours to, in relation to this question, where it

    25 was raised and what was said about it. I think that

  5. 1 helps in some clarification of the issue.

    2 We have an additional basis upon which we would

    3 argue renders these documents admissible, apart from the

    4 fact that they are found on the premises. They were

    5 shown to certain people who we would say would be in a

    6 position to authenticate them and they then could be

    7 tendered on that basis, having regard to the fact that

    8 one of the exhibits, already an exhibit of General

    9 Pasalic, has already been admitted on that basis. It

    10 would be on the two bases I think -- when I take

    11 your Honours to the transcript, which I will do now,

    12 I think any need to call any further evidence would be

    13 obviated by that. I do not think we can actually take

    14 it any further. I think we have reached the point where

    15 not much more can be said about it than what was done.

    16 If I may, firstly in relation to the evidence of

    17 the witness Moerbauer, in his evidence-in-chief, he was

    18 asked by my learned colleague Mr. Turone about this on

    19 page 3558, line 16 of the transcript, on the first

    20 occasion. My colleague asked the question:

    21 "Were there any videotapes among the INDA-BAU

    22 material?

    23 Answer: Yes, a large number of videotapes were

    24 seized.

    25 Question: As far as you can remember, how many

  6. 1 videotapes were seized in the INDA-BAU premises?

    2 Answer: About 50 videotapes. There were a few

    3 problems and apparently there was a miscount, but

    4 roughly 50, 51. It said 51 and then it turned out to be

    5 54."

    6 Mr. Turone then went on on page 3559 to ask the

    7 question:

    8 "So you have been saying about some mistakes in

    9 the counting of the videotapes. What kind of a mistake

    10 in the counting of the videotapes took place? When was

    11 it corrected, if at any time? Can you explain this

    12 point?

    13 Answer: Well, on the basis of the

    14 file Taubergasse 15, Door 10, I think in that instance,

    15 it was corrected right away. That was noted into the

    16 record, by the way."

    17 Your Honours will know that we are not tendering

    18 any videotapes or material from that address. He then

    19 goes on:

    20 "With regard to the INDA-BAU, that was corrected

    21 subsequently."

    22 Then later on in the transcript, in the

    23 cross-examination of the witness Moerbauer by

    24 Madam Residovic, she said to him:

    25 "Mr. Moerbauer, is it correct that in some reports,

  7. 1 the Bericht or information of seized documents you noted

    2 contained errors recording the number of seized

    3 videotapes?"

    4 The witness then answered in very similar terms:

    5 "Concerning the number of seized videotapes, the

    6 first note of items seized from Taubergasse 15, Door 14,

    7 the first error was discovered by a colleague and was

    8 corrected, and the seized videotapes from Koppstrasse 14

    9 [the INDA-BAU premises] were discovered and marked. The

    10 error was realised at a later stage and was noted by me

    11 in a report."

    12 Again in cross-examination of the witness, the

    13 witness says at page 3724, line 6:

    14 "The videotapes from the INDA-BAU company, there

    15 were always 54 of them. There were apparently 54 of

    16 them. They were only counted later and they were

    17 marked. With regard to a reference to them and giving

    18 them a name, that only happened later in the course of

    19 processing."

    20 Then Moerbauer was asked:

    21 "Mr. Moerbauer, I am looking at the second page of

    22 the Niederschrift from INDA-BAU and to me it is obvious

    23 that it states 51 cassettes. What I am interested in

    24 is: which three cassettes did you find later and what

    25 are the names of these cassettes, can you tell me that?

  8. 1 Answer: In the box, there was apparently always

    2 those 54 videotapes, but after hand-over, they were not

    3 counted. It was when we had labelled them consecutively

    4 that we realised that there were 54 and not 51. Now

    5 they were not given a name at once, it was only in the

    6 coarse of one and a half to two weeks of analysis that

    7 the contents of the videotapes was indicated in a

    8 report, along with the contents, along with the

    9 reference."

    10 Again in cross-examination of the witness

    11 Moerbauer, he is asked again about this question, and he

    12 says at page 3740 at line 11:

    13 "At INDA-BAU, 51, according to the record, were

    14 found there, and in fact we found that there were really

    15 54 videotapes there. Now it is the original record we

    16 did not refer to the individual tapes by name."

    17 So, your Honours, that is the evidence of the

    18 witness Moerbauer in relation to that question. In

    19 relation to the witness --

    20 JUDGE KARIBI-WHYTE: How did you understand all this you

    21 have read out?

    22 MR. NIEMANN: How did I understand it? The state of the

    23 evidence, your Honour, from that witness at least, is

    24 this: that he admits there was a mistake, it was one of

    25 the questions that Judge Jan asked me yesterday, why was

  9. 1 it not put to him.

    2 THE INTERPRETER: Microphone please.

    3 MR. NIEMANN: It was put to one of the witnesses.

    4 JUDGE JAN: It is Navrat who made the recoveries, who

    5 counted them. I was just referring to the evidence of

    6 Navrat, not to Moerbauer. He saw these tapes much

    7 later.

    8 MR. NIEMANN: In relation to the witness Navrat, he says, at

    9 page 5705 of the transcript, in cross-examination:

    10 "We have gone from 51 to 54 videos, correct?

    11 Answer: That is right.

    12 Question: That is a discrepancy of three,

    13 correct?

    14 Answer: That is right.

    15 Question: One possibility is that three videos

    16 were added to the original 51; you would accept that

    17 possibility, would you not?

    18 Answer: Everything is possible, but I have a

    19 tough time imagining that.

    20 Question: Another possibility is that we were

    21 dealing with 54 different videos from the ones that came

    22 from INDA-BAU?

    23 Answer: That is not right.

    24 Question: They were not marked, the containers

    25 were not marked, it was not sealed; you accept the

  10. 1 possibility, do you not?

    2 Answer: I can rule out the possibility."

    3 I think that is a misprint, it should be cannot

    4 rule out the possibility:

    5 "In fact, the cardboard box which left INDA-BAU

    6 may not be the same one that arrived at police

    7 headquarters because it was not marked either.

    8 Judge Karibi-Whyte: He did say it was in his

    9 custody until he brought it into police headquarters."

    10 Next question:

    11 "We know for sure that the number of the videos

    12 inside the box changed, do we not, between the time -- ?

    13 Answer: That is right.

    14 Question: Maybe your colleagues were looking

    15 through a different cardboard box?

    16 Answer: I have a tough time imagining that.

    17 Question: If the videotapes changed, perhaps the

    18 documents changed too, between the time you brought it

    19 and the time your colleagues examined it.

    20 Judge Jan: Why do you not leave that for argument

    21 stage, instead of putting it to the witness?"

    22 So, your Honours, in terms of what the witnesses

    23 can tell us about the matter, I would not think that

    24 there is much more that can be said. I think they have

    25 said all that there is and I think the position clearly

  11. 1 is that they are saying, they are asserting that the

    2 original number was 54, it was always 54 that was seized

    3 by Navrat, that there was a miscounting at the time of

    4 the search, instead of counting 54 there was 51, and

    5 that that was subsequently discovered some days later

    6 and corrected. I think that emerges clearly from the

    7 transcript as to what their position is, so I do not

    8 think we would be much assisted from hearing further

    9 from them on the point. I think that is as much as they

    10 can tell us.

    11 There was, however, in our submission, a further

    12 basis on which these videos can be tendered. In our

    13 submission, the evidence is the evidence and we cannot

    14 take it any further than to say to you that the state of

    15 the evidence in relation to the confusion on numbers is

    16 as clear as it can be, and that there is a discrepancy

    17 and any other explanation given will not advance the

    18 matter any further. If that is a matter which is of

    19 considerable concern to your Honours, I could make

    20 further submissions on it as such, but I think that

    21 perhaps the issue can be resolved in a different way.

    22 I would submit that the mix-up in numbers is

    23 understandable, it is a matter of human error. It is

    24 unfortunate, certainly there is no question it could

    25 have been done better, but I do not think there is any

  12. 1 concern that anyone has substituted videos, made them up

    2 or anything of that sort. I rely on the fact that in

    3 many ways the Austrian police were largely disinterested

    4 in the outcome as such, because they knew this case was

    5 something that was going to The Hague, it was not their

    6 end result, so it seems to me they would have no motive

    7 either way. It may be an explanation why not as much

    8 care was taken as may have been desirable in the

    9 circumstances, but in my submission, that should not

    10 affect the admissibility of the documents, because they

    11 are quite firm in their evidence that the material

    12 seized was in their custody from the time of seizure to

    13 the time it was taken to police headquarters, and then

    14 it was subsequently recorded and the error was made.

    15 It is not the first time these sorts of errors are

    16 made in search and seizure operations. They are always

    17 difficult matters, but in my submission there is nothing

    18 sinister about what happened which would justify an

    19 exclusion of the evidence on that basis.

    20 However, your Honours, with the first Exhibit I25,

    21 I do not know whether your Honours have the extracts of

    22 that. This is a video of an interview that took place

    23 during 1992 between the witness who appeared here,

    24 Divjak, a gentleman of the name Karic, and the accused

    25 Zejnil Delalic. There are significant portions of it

  13. 1 which relate to the parts where the witness Divjak

    2 participates in the interview, and there are parts of it

    3 where the witness Delalic speaks on the video in

    4 response to questions put to him by a journalist.

    5 Your Honours, my colleague Ms McHenry played

    6 portions of this video to the witness Divjak, and I will

    7 just take your Honours to the transcript where that

    8 happens and relate the significant parts of it, which we

    9 submit goes to establish its authenticity, reliability

    10 and therefore rendering it a document that should be

    11 admitted into evidence.

    12 At page 8465 of the transcript, at line 7,

    13 Ms McHenry says to the witness Divjak:

    14 "Sir, I am going to ask you to view an extract

    15 from a videotape and ask you if you recognise this as an

    16 excerpt of an interview given by you and Mr. Delalic.

    17 I would ask the technical people that the excerpt from

    18 I25, which is marked as Prosecution Exhibit 115, be

    19 shown. After it is shown, I will have a question for

    20 you."

    21 The excerpt is then played from the videotape, and

    22 the transcript of what is said on the videotape is

    23 recorded. It was simultaneously translated by the

    24 interpreters. The witness then says on page 8467:

    25 "If I can just add, I remember that this interview

  14. 1 took place between 29th October and 1st or 2nd November,

    2 so the situation was quite different from the one that

    3 we were discussing, that is the situation in Prozor."

    4 Your Honours, in our submission, clearly this

    5 witness recognises this tape, this interview that took

    6 place and this event.

    7 Then there is a further playing of the tape at

    8 page 8476, where again Ms McHenry says she wants to play

    9 an excerpt of Exhibit 115, tape I25. The video is

    10 played and then the witness says -- Ms. McHenry says:

    11 "If you can look at it and tell us what is being

    12 shown?

    13 Answer: International Committee of the Red Cross

    14 to the Commander Zejnil Delalic."

    15 Then Ms McHenry asks another questions at

    16 page 8477 about the Red Cross and its context, but

    17 I need not take your Honours through that.

    18 In addition, your Honours, this particular -- I am

    19 sorry. So, your Honours, in our submission, this

    20 videotape not only is a videotape that was located on

    21 the premises, and we submit that notwithstanding the

    22 error in the counting of it, it nevertheless was

    23 corrected by the witnesses Moerbauer and Navrat to the

    24 best that they could do so in hindsight. But in

    25 addition to that, it has the additional factor of --

  15. 1 indicia of reliability in that it is a video that was

    2 recognised and testified to by the witness Divjak.

    3 Finally, it is a video which shows the accused

    4 Delalic, and although we are only dealing at the moment

    5 with the transcript of the video, his appearance on it

    6 is also additional evidence of its authenticity and

    7 reliability, which we rely on.

    8 We say the excerpts that are shown in the

    9 transcript that I have provided to your Honours we say

    10 is relevant to questions of command responsibilities.

    11 It goes to the question of the tension that was existing

    12 or developing between the HVO and the army of

    13 Bosnia-Herzegovina that we have heard of in relation to

    14 so many of the documents that we have looked at. In

    15 those bases, we would say that it is authentic, it is

    16 reliable, it is relevant and should properly be admitted

    17 into evidence.

    18 Your Honours, with the next exhibit, videotape

    19 Exhibit 116, and referred to as I46, being a videotape

    20 recovered from the premises of INDA-BAU --

    21 MR. O'SULLIVAN: Your Honours, if I may interrupt my friend

    22 for a moment, my apologies for doing so. There is some

    23 confusion in my mind as to how your Honours have dealt

    24 with the preliminary issue to which you asked Mr. Niemann

    25 to respond, and that is namely to explain the

  16. 1 discrepancy. I must ask for clarification at this point

    2 and ask where we stand on that particular point which

    3 you asked Mr. Niemann to address.

    4 JUDGE KARIBI-WHYTE: That is not what I am about to ask.

    5 Which of the tapes come within the next of the exhibits

    6 you are trying to tender, which of the tapes, 51 or 54,

    7 those tapes as a whole, so we can take them together?

    8 THE INTERPRETER: Microphone please.

    9 MR. NIEMANN: I thought your Honours had it. I have a copy

    10 here, your Honour. (Handed).

    11 JUDGE KARIBI-WHYTE: Let us know how the tapes 51 or 54 are,

    12 because they are clearly separate from the first set of

    13 tapes, MIB, MIC, MID. They are separate, the INDA-BAU

    14 videos, which is not certain whether they are 51 or 54,

    15 so we will know what those tapes are.

    16 MR. NIEMANN: It is the two tapes that I am now dealing with,

    17 Exhibit 115, which is I25 and I46, which is Exhibit 116,

    18 they are the two tapes that fall among the 54 tapes that

    19 were recovered from the premises of INDA-BAU where the

    20 miscounting was taking place, and I have made my

    21 submissions about what the state of the evidence is

    22 concerning that, namely that the officers says that an

    23 error was made and that the error was found some days

    24 later. They assert that the tapes were 54 in number

    25 originally, that the miscounting must have occurred at

  17. 1 the premises of INDA-BAU when the Niederschrift was

    2 filled out, but these two tapes fall within that

    3 category. They fall within the 54 tapes that were

    4 seized at those premises.

    5 JUDGE KARIBI-WHYTE: I think the main contention is if they

    6 are 51, the three additional tapes, there must have been

    7 three additional tapes. If they are 54 then there are

    8 no additional tapes. If we take it as 51, it will not

    9 be certain which are the three additional tapes which

    10 make them 54. I hope you follow the argument.

    11 MR. NIEMANN: I understand the Defence argument. I am saying

    12 that the evidence does not support their argument. The

    13 evidence says that there were 54 from beginning to end.

    14 JUDGE KARIBI-WHYTE: If that is the evidence, the documents

    15 would have been consistently 54.

    16 MR. NIEMANN: Not if a mistake had been made, your Honour.

    17 JUDGE KARIBI-WHYTE: If you have already indicated, if the

    18 Prosecution has indicated 51 on its document when it was

    19 seized, now to get to the police headquarters and find

    20 54 appears to be inconsistent with what was there.

    21 MR. NIEMANN: There was a mistake.

    22 JUDGE KARIBI-WHYTE: This is the problem. The mistake is

    23 the problem, because if there was a mistake, how do you

    24 explain that that mistake did not happen after it was

    25 seized?

  18. 1 MR. NIEMANN: The state of the evidence is there was a

    2 mistake made in the counting, not in the seizure of the

    3 videotapes. The state of the evidence from Navrat is

    4 that 54 videotapes were seized and the counting of them

    5 was the error, not the mistake in the tapes themselves,

    6 and that there was not three added. But I have moved to

    7 another --

    8 JUDGE KARIBI-WHYTE: You have. The uncertainty which that

    9 mistake has brought into the whole picture, it is what

    10 makes it fairly difficult to rely on the fact that they

    11 were seized at that place.

    12 MR. NIEMANN: I understand that, your Honours, but that is

    13 why I have presented the evidence on a different basis.

    14 If the witness Divjak comes along here and testifies --

    15 JUDGE KARIBI-WHYTE: Divjak can come when the videotape can

    16 be viewed. It can only be viewed if you accept it for

    17 the purposes of the evidence.

    18 MR. NIEMANN: He viewed it, he has seen it.

    19 JUDGE KARIBI-WHYTE: That is a different matter. If finally

    20 we discover that these videotapes are tainted with

    21 uncertainty, even if he viewed it, perhaps it might give

    22 a different picture, it might have been smuggled in

    23 after.

    24 MR. NIEMANN: It could have been, but the chances of that

    25 become more remote and fanciful when a witness comes

  19. 1 along and says, "Yes, I know about that interview,

    2 I participated in it".

    3 JUDGE KARIBI-WHYTE: He could say so. Then you would still

    4 not be arguing that you seized it from the premises of

    5 INDA-BAU. You could have brought it after that.

    6 MR. NIEMANN: It would not matter where it came from then.

    7 JUDGE KARIBI-WHYTE: But that is not your argument.

    8 MR. NIEMANN: But there are two arguments.

    9 JUDGE KARIBI-WHYTE: Then you will not be relying on the

    10 fact that you brought it from that place.

    11 MR. NIEMANN: That is what I am saying.

    12 JUDGE KARIBI-WHYTE: That is your argument, that you brought

    13 it from this place. I have been listening to you

    14 carefully, and all the argument is that there are 54

    15 tapes, and if the 54 tapes all come from INDA-BAU, and

    16 that is what you rely upon, that it was brought from the

    17 premises of the person who is likely to keep them, and

    18 they were found from that premises, it is not the same

    19 argument as saying that, "I even have the tapes",

    20 irrespective of whether it was in that premises.

    21 Nothing stops anybody having those tapes. Anybody who

    22 was a participant in the exercise could have had that

    23 tape and can use it, but when you claim that it was

    24 brought from his premises, it is a different matter.

    25 MR. NIEMANN: I thought I made it clear that my argument was

  20. 1 in the alternative. I have alternative arguments. If

    2 I have not made that clear, your Honour, I will try and

    3 make it clear, but I am presenting to you two

    4 arguments. When I started off this morning, I said that

    5 not only would I present the transcript of what was said

    6 about the miscounting --

    7 JUDGE KARIBI-WHYTE: Your alternative argument is that it

    8 has been viewed by the General. It was not from the

    9 same source.

    10 MR. NIEMANN: It would not matter where it came from.

    11 JUDGE KARIBI-WHYTE: You do not exclude the fact that it was

    12 not from that source, the INDA-BAU tapes which were

    13 viewed by the General.

    14 MR. NIEMANN: I could have got it from anywhere.

    15 JUDGE KARIBI-WHYTE: But you did not.

    16 MR. NIEMANN: In my submission, your Honour, the alternative

    17 argument is this --

    18 JUDGE KARIBI-WHYTE: I like forthrightness in arguments and

    19 that is why I do not like duplicity of this type. If

    20 you had said you got it from INDA-BAU, the tapes, I take

    21 it for that. It is possible you got it elsewhere. Now

    22 if you are not relying on the INDA-BAU tapes, you could

    23 have said so, as the alternative argument that these

    24 were not from that collection. It is not your argument

    25 that it is not from that collection.

  21. 1 MR. NIEMANN: Is your Honour suggesting I am not being

    2 forthright?

    3 JUDGE KARIBI-WHYTE: In this argument I have not been

    4 satisfied.

    5 MR. NIEMANN: Your Honours, I am very disturbed that you

    6 should say that.

    7 JUDGE KARIBI-WHYTE: I have told you, I have listened to the

    8 arguments and you still insist that it was put in the

    9 alternative. Your alternative is still the same

    10 argument.

    11 MR. NIEMANN: I would argue to the contrary on that. I would

    12 say that objections to admissibility based on the fact

    13 that they were seized from the premises is a matter that

    14 troubled your Honours, notwithstanding the fact that

    15 I would argue that the evidence would point to the fact

    16 that it was just a mistake in counting that was made,

    17 but the objection to their admissibility would arise

    18 because of their uncertainty in relation to where they

    19 came from when they were seized. That would be the

    20 objection to their admissibility there.

    21 The alternative argument is not affected by that

    22 issue, and that is reflected by the fact that Exhibit

    23 114 has already been admitted by your Honours, namely

    24 the interview that was conducted with Arif Pasalic, the

    25 witness. The reason why your Honours were not concerned

  22. 1 about that is because the witness came along and

    2 testified to it. The document 114 is also an INDA-BAU

    3 tape, I22. It falls into exactly the same category, but

    4 it has been accepted into evidence --

    5 JUDGE KARIBI-WHYTE: I suppose this is a little

    6 theoretical. You see, when the evidence is even

    7 admitted, if subsequently we find that it is tainted in

    8 such a way as to prejudice a fair administration of

    9 justice, we can exclude it.

    10 MR. NIEMANN: I do not deny your Honour can do that.

    11 JUDGE KARIBI-WHYTE: That is why I want you to establish

    12 your arguments so that none of the disqualifying

    13 elements affect the evidence which you introduce.

    14 MR. NIEMANN: I need to know, though, whether your Honours do

    15 not accept my alternative basis.

    16 JUDGE KARIBI-WHYTE: Why not? There is no ruling which has

    17 been made about it. We will hear the Defence

    18 submissions on all the issues before we make up our

    19 minds.

    20 MR. NIEMANN: It is interesting that the Defence themselves

    21 have put parts of these videotapes, or parts of the next

    22 videotape into evidence themselves.

    23 JUDGE KARIBI-WHYTE: How does that make everything

    24 credible? At the close of the arguments, we will see

    25 exactly where everybody stands. That is why we will

  23. 1 refrain from making a ruling before all arguments are

    2 in.

    3 MR. NIEMANN: But I am troubled that your Honour feels that

    4 I am not being forthright, because my intentions were

    5 furthest from the point.

    6 JUDGE KARIBI-WHYTE: I am sorry if perhaps I might have said

    7 it differently from my intention. My intention is to

    8 make it clear that if the argument is based on the fact

    9 that these tapes are all from the INDA-BAU premises, it

    10 will still be a different concentration from viewing a

    11 tape we could have got elsewhere, even though it is the

    12 same with the INDA-BAU premises. I agree there might be

    13 other copies which could have been brought to be viewed

    14 here, but if the argument is that it was not from the

    15 premises, then one would not be relying on the

    16 collection of 54 which has been stated to have been

    17 counted, because it has been the counting that has been

    18 the problem. That is the problem, that at least there

    19 is a credible counting of 51 and another one of 54.

    20 MR. NIEMANN: I think it is necessary for me to make it

    21 abundantly clear that there is no question from my point

    22 of view about where we are saying these documents come

    23 from, these videos come from. We say they came from

    24 INDA-BAU and at no stage am I suggesting they are coming

    25 from anywhere else. What may have occurred is when

  24. 1 I said that they could have come from anywhere else, it

    2 does not affect the argument, I was merely saying that

    3 arguendo to illustrate my point in relation to a witness

    4 who comes along before the court and testifies, "yes,

    5 I remember this event, I remember when I participated in

    6 this event", and what I was merely saying arguendo and

    7 by way of illustration is when you have that sort of

    8 evidence, that quality of evidence before you, then the

    9 issue of whether there was a miscount in the numbers is

    10 not a matter that, we would argue, should concern

    11 your Honours, because you have first and direct evidence

    12 of the witness who says, "yes, this is a video of an

    13 event in which I participated".

    14 All I was saying is that with the alternative

    15 argument, the alternative argument being the person

    16 comes along and themselves says, "yes, this is my

    17 video", your Honours need not be troubled by the

    18 counting. But at no stage was I ever suggesting to

    19 your Honours that it may or may not have come from

    20 INDA-BAU, I was not putting that to you. My position

    21 has always been the same, that our argument is that it

    22 came from INDA-BAU and we accept your Honours' concern

    23 that you are disturbed by the miscounting, and that may

    24 indeed have been fatal, had it not been for the fact

    25 that the witnesses admit to the error, and also that

  25. 1 somebody else can come along and say that they know of

    2 this tape.

    3 JUDGE KARIBI-WHYTE: Mr. Niemann, you know, the more fatal

    4 aspect is that it is not impossible that this tape was

    5 not one of those counted. If it was replaced, or if it

    6 is an additional tape, if it is 51 and you say, "this is

    7 an additional tape".

    8 MR. NIEMANN: It becomes mere speculation on my part to

    9 suggest where else it would come from. All I know is

    10 that on the record, that is not the position that is

    11 accepted by the Austrian police. Their position is that

    12 there was a miscounting in numbers. Whether that is

    13 right or wrong I cannot assist your Honour. That is

    14 what they say. The point of reading the transcript was

    15 merely to say to your Honours that I do not think

    16 bringing them back and questioning them on this point

    17 would --

    18 JUDGE KARIBI-WHYTE: It would not make any difference,

    19 because they have been closely questioned as to what was

    20 in the Niederschrift and what was counted at the police

    21 headquarters. That has been established. It was not at

    22 the point of seizure of seizure that it was 54, because

    23 the forms that are filled at the premises, it was 51

    24 that was filled there, but if the miscounting took place

    25 there and not at the police headquarters, then although

  26. 1 they have claimed they were in controlling custody

    2 possession all through, how many come 54, 3 additional?

    3 MR. NIEMANN: Your Honour, that is the state of the

    4 evidence. The state of the evidence is the error was

    5 made at the premises of INDA-BAU, when they were

    6 originally seized. That is the state of the evidence.

    7 That error was not found until later. That is our

    8 submission as to the state of the evidence.

    9 JUDGE KARIBI-WHYTE: It is all right. You can continue with

    10 the argument, there will be a reply.

    11 MR. O'SULLIVAN: Your Honour, that is a clear misstatement of

    12 the facts, that there has been an admission by a police

    13 officer that he miscounted on the premises. The record

    14 is quite the opposite. That is a clear misstatement of

    15 the record and the facts on the record in the testimony

    16 of Officer Navrat.

    17 MR. NIEMANN: I did not say it was Officer Navrat,

    18 your Honours. I rely on page 3740 of the transcript,

    19 line 11.

    20 MR. ACKERMAN: Your Honour, I think clarity is important.

    21 Mr. Navrat never backed off of his Niederschrift where he

    22 said there were 51 tapes. He never said in this court,

    23 "I made a mistake, I was in a hurry, I did not count

    24 them properly", that never happened. Officer Moerbauer

    25 was not there. For Officer Moerbauer to say there was

  27. 1 apparently a mistake is of no help to your Honours,

    2 because he was not there, he was not there when the

    3 tapes were counted and counted to be 51. Navrat never

    4 came before this court and said, "I made a serious

    5 mistake, I was in a hurry, I counted wrong". He stuck

    6 by his Niederschrift, he stuck by his 51 number, that is

    7 the state of the record.

    8 MR. MORAN: Your Honour, I think this is another example of

    9 one party or another saying, "there is evidence that

    10 favours us, so the Trial Chamber has to accept it". As

    11 I pointed out earlier in the week, this is something

    12 where the Trial Chamber is going to have to make some

    13 kind of credibility choice. Just because we have

    14 evidence that favours our side, it does not make it

    15 wholly right.

    16 JUDGE KARIBI-WHYTE: Well, I think when counsel has

    17 concluded its argument on it, you will have your right

    18 of reply, to make your own points. It is only after that

    19 that we will make a ruling.

    20 MR. NIEMANN: Again, by the allegation of misstatement, no,

    21 there is no direct statement by Navrat, but Navrat does

    22 say, when confronted with the proposition that three new

    23 videotapes were added to the original 51:

    24 "Would you accept the possibility, would you not?

    25 Answer: Everything is possible, but I have a

  28. 1 tough time imagining that."

    2 Your Honours, the videotape I46 is a videotape

    3 that Madam Residovic showed to the witness Divjak in the

    4 course of his testimony, and during that, she plays the

    5 tape, page 8565, and she says:

    6 "I would like this excerpt to be marked and the

    7 cassette given to the Prosecution within the group

    8 I think of 46 tapes."

    9 We then ask for a number and the number is then

    10 given, D11 6/1. The tape is then played to the witness,

    11 Divjak. It is now marked as an exhibit for the Defence,

    12 D11 6/1.

    13 MS. RESIDOVIC: Your Honours, I would not like to

    14 participate in the debate at this stage, but I do wish

    15 to say that this method of showing a small segment of a

    16 video that we received from the Prosecution, and we do

    17 not know where it comes from, and to prove thereby the

    18 source of the video I think is inappropriate. We

    19 received that insert on at least ten videotapes from the

    20 Prosecution, and saying that we saw an insert about the

    21 war does still not answer your question where that video

    22 comes from. Thank you.

    23 MR. NIEMANN: It does not, but if the Defence use it for the

    24 purposes of questioning a witness or impeaching a

    25 witness or whatever, then it suggests that they

  29. 1 themselves must place some credibility on the document

    2 or videotape, otherwise they would be doing nothing

    3 other than, I would submit, misleading the Chamber,

    4 which I am sure they would not do. It is significant

    5 that they relied on it for the limited purposes that

    6 they did.

    7 Also the same video, a portion of the same video

    8 was shown to the witness Branko Gotovac in the course of

    9 cross-examination of that witness by Ms McMurrey.

    10 Your Honours, that is not the only basis upon

    11 which we argue in the alternative. I keep emphasising

    12 now that it is in the alternative. We are not

    13 suggesting that it came from anywhere other than

    14 INDA-BAU. Your Honours, during the course of the record

    15 of interview with the accused Zejnil Delalic, at page 3

    16 of the record of interview, he is questioned by the

    17 investigator in relation to an interview that he gave at

    18 a Zagreb TV programme called, "Slikom na Sliku", and

    19 I have taken your Honours to this previously in relation

    20 to another matter, namely whether he was in Zagreb in

    21 early May, but it is this programme that appears as part

    22 of I46, Exhibit 116. Do your Honours have the copy of

    23 that in front of you? I hand a copy up to

    24 your Honours. (Handed).

    25 It is quite a long interview, but we have only

  30. 1 extracted the limited parts that we are seeking to rely

    2 on. It is composed of two components, it is this

    3 interview on the programme "Slikom na Sliku", but there

    4 is another part of it which is entitled "the war in

    5 Bosnia-Herzegovina", which is again part of this long

    6 video. I think it runs for something in the area of

    7 three hours, so we have only extracted a very short part

    8 of it for the purposes of the Prosecution case. The

    9 point that I wish to make now is that this video is

    10 about that interview in Zagreb in May when the accused

    11 Zejnil Delalic was interviewed, and it shows him

    12 participating in the interview. He is questioned about

    13 that.

    14 THE INTERPRETER: Microphone, please.

    15 JUDGE JAN: When he was a co-ordinator, or before his

    16 appointment as co-ordinator? I think co-ordinator

    17 appointment is 12th May?

    18 MR. NIEMANN: The evidence is not clear on that. It is

    19 possibly before he was appointed co-ordinator. He was

    20 certainly active in Konjic at the time establishing the

    21 fledgling army, but the point I wish to make in

    22 connection with the interview is he was asked by the

    23 investigators whether he was interviewed on this

    24 programme, he says yes, and then the question is:

    25 "When was that?

  31. 1 Answer: That was in the month of May when I went

    2 to Zagreb for logistics.

    3 Question: Beginning of May, mid May, end of May?

    4 Answer: First half of May.

    5 Question: What was the purpose of the interview?

    6 Answer: There was an association of people from

    7 Konjic and Zagreb. The war had only just begun, and

    8 they wanted to hear about more what was happening in

    9 Konjic. You know that Konjic is 350 kilometres away.

    10 Since it was the beginning of the war, they wanted to

    11 have accurate information on what was happening in

    12 Herzegovina and what kind of co-operation existed

    13 between the TO and the HVO.

    14 Question: How come you were selected for

    15 interview?"

    16 He explains he happened to be coming from the

    17 area. The point that I wish to raise by this point is

    18 that there is nothing that emerges from the record of

    19 interview to suggest that this interview did not take

    20 place as a matter of fact and that he did not

    21 participate in it. As I said, your Honours, the tape is

    22 a very long tape, and there is a large section on it

    23 entitled, "The war in Bosnia-Herzegovina". The

    24 investigators go on at page 5 of the record of interview

    25 of 23rd August 1996, and they say in relation to the

  32. 1 balance of this particular videotape, which was the part

    2 that dealt with the war in Bosnia-Herzegovina, they say:

    3 "Was this the same journalist as in another

    4 context had told you that you were the leader when the

    5 Celebici barracks were liberated?"

    6 It is on page 5, your Honours. The accused says:

    7 "I do not understand, what other context?

    8 Question: Because from one of the videotapes we

    9 seized in Vienna on 18th March this year, 1996, there is

    10 a sequence where you are told to be the leader of the

    11 group that liberated Celebici barracks and you were the

    12 person who organised the prison in the military barracks

    13 in Celebici."

    14 Then the investigator says:

    15 "This is told by a journalist in the video we

    16 seized, a video called, 'War of Bosnia-Herzegovina'."

    17 That is the title given. The accused then says:

    18 "My question to you is whether this videotape in

    19 the sequence is not just a commentary that is taped or

    20 recorded in between the footage, or the broadcast live,

    21 or directly recorded."

    22 The investigator said:

    23 "This is a videotape that consists of several

    24 clips from TV. My question is just to find out whether

    25 it is just one journalist who claimed you, all the

  33. 1 time, who bragged to you to be leader of the area at the

    2 time, or are there more than one journalist who made

    3 that kind of statement that you were most important

    4 leader in Konjic area at the time, April/May."

    5 The accused says in relation to that aspect of the

    6 matter:

    7 "The videotape to which you are referring was made

    8 one year later in Vienna."

    9 I need to just clarify this here. Your Honours

    10 appreciate, there are two parts of the video. There is

    11 the part that was recorded from the television series in

    12 Zagreb in May 1992, and there is another feature part of

    13 the video which is a much bigger part and it is

    14 entitled, "The war in Bosnia-Herzegovina". That is the

    15 part which he is referring to now, that he is talking

    16 about. He says:

    17 "The videotape to which you are referring was made

    18 one year later in Vienna and all the comments I give on

    19 these films in between footages are invented and you can

    20 just forget about it. Those comments were made by

    21 amateurs in a Bosnian club in Vienna."

    22 I emphasise at this point we are not seeking to

    23 tender any of those parts of the video. He has said

    24 that they were exaggerated and we do not know to the

    25 contrary. Besides, the only part of the videotapes that

  34. 1 we are interested in are the parts where he the accused

    2 is himself speaking, we are not seeking to get into

    3 evidence commentary by journalists or whatever about the

    4 matter, and so in the extracts we have provided to

    5 your Honours we have been careful to exclude those parts

    6 which are not speaking parts by the accused.

    7 The investigator then goes on, further down the

    8 page:

    9 "Who made the video, 'The war in

    10 Bosnia-Herzegovina'?

    11 Answer: The footage, they came from different

    12 sources, from all over, some people private video,

    13 something that was recorded from the TV, but the

    14 comments that you can hear on the videotape are made by

    15 a kind of cultural section of the Bosnian Culture Club

    16 in Vienna."

    17 Your Honours, nowhere when questioned about this

    18 matter does the accused say, "well, if you received that

    19 from premises in Vienna, that was a mistake", or, "that

    20 was never there, you got that wrong". Nowhere does he

    21 ever say, "you people must have fabricated this", or,

    22 "the Vienna police must have fabricated this, because

    23 I do not know anything about it", which one would expect

    24 him to say if that is the case. What he says is what

    25 one would expect him to say. He says yes, that he knows

  35. 1 of it, that he acknowledges that the first part or the

    2 part that relates to the interview in Zagreb in May

    3 1992, that is correct, and he explains his participation

    4 in that. But what he says is that with the part of the

    5 tape that relates to the war in Bosnia-Herzegovina that

    6 there are components in that which were made by

    7 journalists and others, and he says they are not

    8 accurate. We are not seeking to tender those,

    9 your Honours.

    10 Your Honours, in our submission, you have before

    11 you in relation to this videotape the very best evidence

    12 that you could possibly have, the very best evidence,

    13 because it comes from the accused himself, and at no

    14 stage does he attempt to say to your Honours that it is

    15 something which was not at the premises or it was

    16 something that must have been made up by the Prosecution

    17 or the Vienna police or by somebody else who had such

    18 malicious intent.

    19 We submit, your Honour, that this video, extracts

    20 of the video we have provided your Honours with, is

    21 admissible and relevant. We say that the first part,

    22 segment 1, is relevant because it speaks of what the

    23 accused was doing in those very early parts of the war

    24 in May 1992, being interviewed on Zagreb Television. It

    25 speaks of the barracks at Celebici being recovered, it

  36. 1 refers to an ultimatum which was issued to the JNA, in

    2 which the accused himself had some role, and is referred

    3 to in the record of interview. It refers to the joint

    4 command between the HVO and the army of

    5 Bosnia-Herzegovina, which your Honours have heard so

    6 much about in the course of the evidence.

    7 The video also contains that segment that

    8 I referred your Honours to previously, where the use of

    9 the call name, "Oganj", meaning "fire", is also

    10 contained as part of this extract of the video. On all

    11 of those bases, if your Honours please, we submit that

    12 because the accused himself has made reference to this

    13 video, has not contested its existence, that it is

    14 relevant, that it is authentic and it should properly be

    15 admitted into evidence. Those are our submissions, your

    16 Honour.

    17 MR. GREAVES: Before my learned friend sits down, could

    18 I just ask him to deal with one thing that he has

    19 literally just mentioned, and that is in segment 8,

    20 bottom two lines of that segment. It appears that there

    21 are two people who use the codename "Oganj". Please

    22 would he explain to us what effect that has on his

    23 proposition -- I will not use the word "evidence" --

    24 proposition that the name "Oganj" in the documents is

    25 only that of Mr. Delalic. The document says just

  37. 1 "Oganj". Which "Oganj" is it? The point is this;

    2 there are two people who use the codename "Oganj". The

    3 document simply says "Oganj", it does not say 1 or 2.

    4 Which does the Prosecution say it is, 1 or 2?

    5 MR. NIEMANN: Well, we say Oganj 1 is the accused Zejnil

    6 Delalic, because that is what he says. He says:

    7 "002, do you hear me? Oganj 1 calling".

    8 MR. GREAVES: But the document does not say "Oganj 1", it

    9 just says "Oganj". There are two "Oganj"s, which of

    10 those two does he say the document is referring to?

    11 MR. NIEMANN: The document is referring to Oganj 1, this is

    12 our submission.

    13 MR. GREAVES: That is not what it says, it just says "Oganj",

    14 of course.

    15 MR. NIEMANN: Of course.

    16 MS. RESIDOVIC: Your Honours, in connection with this

    17 discussion, I should just like to draw attention to a

    18 point which should not mislead us. It is true that

    19 during the interview with Mr. Delalic, certain subjects

    20 were discussed. I must say that the Prosecution

    21 submitted to us 80 and more tapes, some from

    22 entertainment, others dealing with the questions of the

    23 war. The Prosecution submitted a special tape entitled

    24 "Slikom na Sliku", and my client during the interview

    25 with the interviewer discussed the subject of "Slikom na

  38. 1 Sliku", and not the tape which is now being tendered

    2 into evidence.

    3 Also, among the 80 tapes given to us by the

    4 Prosecution, many dealt with the questions of the war.

    5 My client, as you saw in this segment, referred to

    6 certain events that he could recall, the rough footage.

    7 Never for a moment was my client shown this video, nor

    8 did he recognise it. Therefore his interview about the

    9 events and themes raised in this video cannot be a basis

    10 for the admissibility of this tape, whose source we do

    11 not know.

    12 As Mr. Delalic pointed out, many people shot

    13 various features and reports about the war, and to make

    14 conclusions about the so-called codename "Oganj", used

    15 by several people, as Mr. Greaves has stated, and the

    16 explanation given in my view cannot be a basis for

    17 accepting the reliability of the video being offered by

    18 the Prosecution.

    19 MR. NIEMANN: Your Honours, the videotape contains two

    20 segments, as I thought I had explained, the segment

    21 relating to the war in Bosnia-Herzegovina segment, and

    22 the other part which related to the programme on the

    23 Zagreb TV, "Slikom na Sliku". The tape is one complete

    24 tape containing two parts. The tape was mentioned on

    25 page 5 of the transcript in relation to that part of the

  39. 1 tape pertaining to the war in Bosnia-Herzegovina, when

    2 the investigator says:

    3 "Because one of the videotapes we seized in Vienna

    4 on 18th March this year, 1996, there was a sequence in

    5 which you were", and then he continues questioning, so

    6 there is no question that at least the second part of

    7 the tape, that was raised directly with the accused

    8 during the course of his record of interview.

    9 MS. RESIDOVIC: Your Honours, as you rightly said, Vienna

    10 is a big city. It was clearly stated that this cassette

    11 is from INDA-BAU. The interview conducted with my

    12 client does not affect the reliability of this video.

    13 There is a legitimate way for the Prosecution to

    14 authenticate every segment. He can have a witness who

    15 can recognise it. If my client testifies before this

    16 Trial Chamber, he can also be shown various segments,

    17 but this is not the way to establish the reliability of

    18 an exhibit in this Trial Chamber.

    19 MR. NIEMANN: That is not inconsistent with the ways,

    20 matters, documents and material presented before other

    21 trial chambers in relation to other matters, so I do not

    22 know to what my friend is referring.

    23 JUDGE KARIBI-WHYTE: This is your concluding argument about

    24 the tapes, is it?

    25 MR. NIEMANN: That concludes all the material seized from

  40. 1 Vienna.

    2 JUDGE KARIBI-WHYTE: Thank you very much. What is your

    3 reaction?

    4 MR. GREAVES: I am going to ask you to indulge me this

    5 morning, your Honour. I am going to be considerably

    6 less than the three days it has taken my learned friend

    7 in addressing you, I hope it is going to be no more than

    8 an hour, but what I would like to do is do it all in one

    9 piece, so that the flow of what I have to say to

    10 your Honours is not interrupted by the break which must

    11 happen in order for Mr. Landzo to be seen by the doctor.

    12 What I would invite your Honours to do is allow me to

    13 commence addressing you at 2.30 this afternoon, please,

    14 rather than doing ten minutes and losing the thread, if

    15 I can use that phrase.

    16 JUDGE KARIBI-WHYTE: I think that should be convenient.

    17 MR. GREAVES: Thank you very much, your Honour.

    18 THE INTERPRETER: Microphone, your Honour, please.

    19 JUDGE JAN: Segment 10 is important in this last tape. Have

    20 you examined this Milosevic and Maric? Who says that

    21 this is being taped in Celebici camp?

    22 MR. NIEMANN: Your Honour is talking about the second

    23 segment?

    24 JUDGE JAN: Segment 10.

    25 MR. NIEMANN: Is your Honour referring to segment 10?

  41. 1 JUDGE JAN: Yes, "Scenes about the Celebici prison",

    2 prepared by Jadranka Milosevic and Zvonko Maric.

    3 MR. NIEMANN: The reference, your Honour, to that first part,

    4 Delalic standing with a female interviewer by a tree?

    5 JUDGE JAN: Yes, and the heading is, "Scenes about the

    6 Celebici prison".

    7 MR. NIEMANN: Is your Honour asking why do we say it is the

    8 Celebici prison?

    9 JUDGE JAN: Yes.

    10 MR. NIEMANN: I think only the first part relates to the

    11 Celebici prison.

    12 MS. RESIDOVIC: May it please the court.

    13 MR. NIEMANN: If I can just interrupt my friend for a moment,

    14 there may be an error made here, your Honour, that is

    15 what Ms. McHenry is telling me about. I would need to

    16 check it. Perhaps when we come back I will tell you

    17 whether or not there is. If there is an error made, we

    18 can have it redacted.

    19 JUDGE JAN: Another thing, the accused was interviewed by

    20 the OTP. Was he questioned about this particular

    21 segment and what did he say?

    22 MR. NIEMANN: No, he was not questioned about this --

    23 JUDGE JAN: He was cross-examined about so many -- he was

    24 examined and he was asked to explain his position with

    25 regard to various segments. What did he say with regard

  42. 1 to this segment?

    2 MR. NIEMANN: I will check that.

    3 JUDGE JAN: Please do.

    4 MS. RESIDOVIC: Your Honours, if I may assist, may I?

    5 JUDGE KARIBI-WHYTE: In explaining the tape segment?

    6 MS. RESIDOVIC: Yes. I think Judge Jan noted very well

    7 this point, because it can prove the unreliability of

    8 this tape. We showed this tape to two witnesses, the

    9 doctor who is a protected witness and Dr. Petko Grubac.

    10 Both doctors testified that at the time they were giving

    11 this interview Zejnil Delalic was not present.

    12 Therefore the evidence presented in court calls in

    13 question the reliability of exhibits prepared in this

    14 way, as is the case with this video cassette.

    15 JUDGE KARIBI-WHYTE: I do not think you need say anything.

    16 The Trial Chamber will now rise and reassemble at 2.30.

    17 (11.25 am)

    18 (Adjourned until 2.30 pm)








  43. 1 (2.30 pm)

    2 JUDGE KARIBI-WHYTE: Mr. Niemann.

    3 MR. NIEMANN: Yes, your Honour. Your Honour Judge Jan asked

    4 me to clear up a couple of matters in relation to the

    5 last video exhibit that I have dealt with, exhibit P116

    6 and in particular that part in segment 10.

    7 Your Honours, it was discussed with the accused in the

    8 record of interview of 18th and 19th March 1996, at

    9 page 51 and 52, and again at page 55. Certainly he

    10 agrees that he took part in the interview, but he said

    11 that he was not there at the same time as the filming

    12 that took place, so it looks as though there was filming

    13 at the camp, he went to the camp, but then the filming

    14 segment that he participated in, according to his

    15 version of it, was back at his house. It seems that

    16 way. There is some confusion in the reading of it, but

    17 in order to overcome any issue on that, we would ask

    18 that the words "in the camp" which are referred to there

    19 be deleted, if your Honours pleads, from it. We will

    20 not assert that it was in the camp, but certainly the

    21 interview did take place, it was discussed with him and

    22 he went to the camp at one stage during the course of

    23 it, although that particular filming may not have taken

    24 place there.

    25 MR. ACKERMAN: Your Honour, I had understood from Mr. Niemann

  44. 1 when he began this process with the videotapes that

    2 these transcripts were only prepared as a sort of

    3 personal aide memoire which he was sharing with us, so

    4 deleting something from them is not necessarily

    5 consistent with that. My assumption is that

    6 your Honours have used them for the purposes for which

    7 they were intended by Mr. Niemann, as an aide memoire,

    8 but are not exhibits and are not part of the record in

    9 the case. I hope my understanding about that is

    10 correct.

    11 MR. NIEMANN: Mr. Ackerman is quite right. He is quite right

    12 about deleting it. Insofar as there is any suggestion

    13 that the Prosecution is asserting that the video relates

    14 to filming in the camp with the accused Delalic, we are

    15 not making that assertion. One needs to read the record

    16 of interview, which is an exhibit. I did not go through

    17 it, it is quite a lengthy section, but there is no

    18 question that he did go to the camp on that day.

    19 THE INTERPRETER: Microphone, please.

    20 JUDGE KARIBI-WHYTE: Thank you very much. I think we are at

    21 Mr. Greaves.

    22 MR. GREAVES: Good afternoon, your Honours, may it please

    23 you. This is plainly an important issue, given the

    24 amount of time which we have dedicated to this

    25 particular matter. I want, with your Honours'

  45. 1 indulgence this afternoon, to address to you some rather

    2 more general remarks about the nature of the exercise

    3 that the Prosecution invites you to conduct when

    4 admitting these documents. In so doing, I hope to

    5 remind you, of course you probably do not need

    6 reminding, but I am going to do so whether you like it

    7 or not, of some fundamental matters of law, something

    8 which so far has been missing from the address of the

    9 Prosecution.

    10 Some time ago in the summer, when there was sun

    11 and it was still shining and warm, there was a motion

    12 filed on the issue of cross-examination. It was an

    13 issue which was dealt with by both written and oral

    14 argument. Quite apart from the well argued debate on

    15 both sides, there was, we say, a particularly revealing

    16 aspect of that argument on that occasion which has now

    17 surfaced again.

    18 We say this: the argument on that occasion

    19 demonstrated that the reality is that the Prosecution

    20 did not care greatly for the way in which

    21 cross-examination was being conducted. It may well be

    22 that they had worked out that their witnesses were not

    23 faring terribly well under the process of scrutiny that

    24 cross-examination necessarily involves. Indeed

    25 your Honours may recall during the course of the

  46. 1 argument that took place that the Prosecution evinced a

    2 distaste for cross-examination by surprise. You may

    3 recall that I had to remind your Honours that I thought

    4 all cross-examination was supposed to be a surprise.

    5 In due course, your Honours gave your views about

    6 cross-examination, and those rules that you set out for

    7 us have, I hope, been applied universally by us.

    8 Because of the way in which argument has been put

    9 forward by my learned friend Mr. Niemann on this

    10 occasion, I respectfully submit to you that the

    11 Prosecution did not take such reverse, as they felt,

    12 lying down. What we say is that this exercise that you

    13 are being invited to conduct is demonstration of how

    14 they think they can get evidence in front of you without

    15 the process of cross-examination taking place.

    16 This is not peripheral evidence. They say it is

    17 central to their case. They say this is evidence which

    18 will assist you to convict the defendants, so from that

    19 point of view, this is highly important evidence. When

    20 you think of how important they say it is, and you look

    21 at the casual way that you are invited to take it and

    22 admit it, you will see that the process that is involved

    23 is both one that is very important, and we say the way

    24 in which they are inviting you to do it is in fact

    25 thoroughly unjust.

  47. 1 What they are doing is presenting you with a

    2 process which involves them in not having to go through

    3 the inconvenience of calling people, and I am going to

    4 give you a specific example, the inconvenience of

    5 calling someone who could give evidence about these

    6 documents and the events set out in them, without the

    7 inconvenience of that person being called and being

    8 cross-examined, and the evidence being shown to be

    9 thoroughly untrustworthy and unreliable.

    10 What we say is this: this exercise, and the manner

    11 in which you are invited to admit these documents, is

    12 one which would simply drive a coach and horses through

    13 some fundamental rights which are guaranteed to each of

    14 the defendants in this case, clear rights guaranteed by

    15 the Articles of the Statute and reinforced by Rules of

    16 Evidence. I am going to come in due course to two

    17 articles, Article 20 and Article 21, and two rules,

    18 Rule 89 and Rule 95.

    19 Let me first of all identify to your Honours three

    20 types of document which are involved in this process.

    21 Firstly, there are documents which purport to be written

    22 by somebody who is not a party to these proceedings, and

    23 who has not been called as a witness. Secondly, there

    24 are documents which are wholly unsigned and which are

    25 not capable of attribution to anybody. Thirdly, there

  48. 1 are documents which purport to be written by a

    2 defendant.

    3 In respect of this part of the argument, I intend

    4 only to deal with the first and third categories, and in

    5 the light of the law that I am going to recite to you,

    6 I am going to make the following propositions in

    7 relation to those documents.

    8 In the respect of the first class of documents,

    9 that is documents that purport to be the work of someone

    10 who is not a defendant, who is not a party and who has

    11 not been called to give evidence. Let us just consider

    12 for a moment what is the nature of the information which

    13 is set out in such a document. It is an account of

    14 events and personalities that are said to have taken

    15 place in Bosnia in 1992. In the sense that it is such

    16 an account of such events, it is effectively just like a

    17 piece of hearsay evidence which comes from the witness

    18 box, with a number of important distinctions. The first

    19 obvious distinction is this: there is no witness

    20 actually recounting the events to you. You never get to

    21 see and hear the witness, and thus assess his demeanour

    22 and truthfulness.

    23 As importantly, the defendant never gets to see

    24 and hear that witness, hear his evidence and hear him

    25 being challenged. The declarant in the document is not

  49. 1 subject to cross-examination to test the veracity of

    2 what he has set out allegedly in that document. So it

    3 comes to this: the facts which are alleged and set out

    4 in the document are not subject to any form of critical

    5 scrutiny, and most importantly, we have no way whatever

    6 of testing the accuracy, reliability and truthworthiness

    7 of the declarant in the document.

    8 We respectfully submit that admitting such

    9 documents would amount to a clear and unambiguous breach

    10 of the two Articles of the Statute that I have

    11 mentioned, and by reasons of Rule 89D and Rule 95,

    12 your Honours ought not to admit them. Let me please,

    13 and forgive me for taking some time to do this, but it

    14 is important, remind your Honours of the law.

    15 First of all, Article 20(1). The headnote of that

    16 Article refers to the conduct of trial proceedings. It

    17 says this:

    18 "The Trial Chambers shall ensure that a trial is

    19 fair and that proceedings are conducted in accordance

    20 with the Rules of Procedure and Evidence with full

    21 respect for the rights of the accused."

    22 Your Honours will notice that the terms of that

    23 Article are mandatory and the phraseology that is used

    24 is, "shall ensure", and so there is no ambiguity about

    25 the requirement that is laid upon your Honours'

  50. 1 shoulders to carry out that duty.

    2 If I may turn now to Article 21(2):

    3 "In the determination of charges against him, the

    4 accused shall be entitled to a fair and public hearing,

    5 subject to Article 22", which as your Honours will

    6 recall concerns protection of victims and witnesses.

    7 Article 21(4):

    8 "In the determination of any charge against the

    9 accused, pursuant to the present Statute, the accused

    10 shall be entitled to the following minimum guarantees in

    11 full equality."

    12 Subparagraph E of that, one of those is to examine

    13 or have examined the witnesses against him; as I say,

    14 the terminology is mandatory. It requires your Honours

    15 to carry out those duties. Here is the neat trick that

    16 we say the Prosecution is inviting you to take on

    17 board: by getting you to admit these documents, they put

    18 before you someone's account which can never be tested

    19 by cross-examination, and can never be challenged in any

    20 way at all. After all, you cannot cross-examine a

    21 document, can you?

    22 We respectfully submit that this breaches the

    23 requirement in Article 21(4)E, which entitles defendants

    24 to examine or have examined the witnesses against him.

    25 It is an account that is given and placed before you

  51. 1 which is not subject to any form of critical scrutiny.

    2 The effect of allowing these documents in would be to

    3 deprive each accused of that right which is guaranteed

    4 to him to cross-examine the declarant of evidence about

    5 him. We respectfully submit that this demonstrates the

    6 inherent unfairness and unjustness of the exercise that

    7 you are being invited to conduct.

    8 If one needed any reinforcement in that view, one

    9 only has to look at the terminology of Rule 89 and Rule

    10 95. Rule 89B:

    11 "A Chamber shall apply Rules of Evidence which

    12 will best favour a fair determination of the matter

    13 before it and are consonant with the spirit of the

    14 Statute and the general principles of law."

    15 We respectfully submit that the rules in relation

    16 to the proof of documents should be rules which are

    17 consonant with the spirit of the Statute, and the

    18 Statute makes it quite plain that if there is someone

    19 who gives an account, there has to be a right to

    20 cross-examine. If that right is taken away, then the

    21 rules cannot be said to be consonant with the spirit of

    22 the Statute.

    23 Rule 89C, of course, your Honours are familiar

    24 with, the admission of relevant evidence which is deemed

    25 to have probative value. Rule 89D:

  52. 1 "A Chamber may exclude evidence if its probative

    2 value is substantially outweighed by a need to ensure a

    3 fair trial."

    4 The latter part of that sentence plainly reflects

    5 the duties that are laid upon the Tribunal in Articles

    6 20 and 21. Rule 89E, of course, entitling your Honours

    7 to request verification of authenticity of evidence

    8 obtained out of court. This is evidence which on the

    9 face of it is obtained out of court and I remind your

    10 Honour of that power that you have. It is not put there

    11 as an idle makeweight to make the Rule look a bit

    12 better, it is there for a fundamental purpose, to ensure

    13 that when issues of authenticity are raised,

    14 your Honours have a clear power to make the Prosecution,

    15 and indeed the Defence for that matter, demonstrate

    16 authenticity.

    17 Rule 95. This rule is phrased in a mandatory way

    18 as well, in strong terms:

    19 "No evidence shall be admissible if its admission

    20 is antithetical to and would seriously damage the

    21 integrity of the proceedings."

    22 We respectfully submit that taking those Rules

    23 together with the Articles of the Statute, that lays a

    24 ground for saying this: there must be proper rules for

    25 the admissibility of documents. First of all,

  53. 1 authentication, reliability, and then and only then can

    2 the court move on to the stage of deciding relevance and

    3 probative value.

    4 Your Honour, the same can be said with a slight

    5 distinction to the third class of documents to which

    6 I adverted. Those are documents which purport, and for

    7 reasons I come to in due course will say to you that we

    8 do not for a moment accept that there is a scrap of

    9 evidence that any document in this case, subject to this

    10 application by the Prosecution, has been proved to be a

    11 document of a defendant, but let us assume for the sake

    12 of this argument that it is a document of the

    13 defendant. A similar argument applies. I am not going

    14 to go through the Rules and the Statute again, but, of

    15 course, I remind your Honours of Article 21G, which says

    16 that a defendant cannot be compelled to testify.

    17 The effect of that, of course, is this, and there

    18 is a glaring example here. Admitting this document

    19 allows the -- admitting document 130, for example,

    20 allows the Prosecution to get in an account by a

    21 defendant which is not subject to cross-examination. We

    22 respectfully submit that there is a clear breach in that

    23 process of the Articles to which I have adverted,

    24 because of the operation of Rule 89D and 95 ought

    25 plainly to be excluded.

  54. 1 We come back to where I have started.

    2 I respectfully submit to you that is the process of how

    3 the Prosecution are getting in front of people material

    4 which is wholly untested and incapable of being tested.

    5 You cannot cross-examine a document.

    6 I come now to the specific example which shows

    7 quite clearly what the Prosecution are trying to do.

    8 You will recall from some of the documents that have

    9 been placed before you the name "Esad Ramic". His name

    10 appears quite frequently in those documents. You may

    11 have other reasons to recall Esad Ramic. We say that

    12 the case of Esad Ramic demonstrates beyond a

    13 peradventure that what the Prosecution is trying to do

    14 is stifle cross-examination, trying to deprive the

    15 defendants of their rights. You do not need to go very

    16 far to find the numerous references to Mr. Ramic, and

    17 references to events in which Mr. Ramic was plainly said

    18 to be involved, and which Mr. Ramic might be expected to

    19 remember and have knowledge of.

    20 Let me take you back a couple of weeks or so.

    21 Your Honours will recall an application, a motion before

    22 this court, a motion for the issuance of a subpoena

    23 against Mr. Ramic, who was said to be unwilling to attend

    24 this court. He came to The Hague once your Honours had

    25 issued that subpoena. We do not know, because he never

  55. 1 gave evidence, whether he, like others, had in fact been

    2 willing all along and that the information given to my

    3 learned friends was incorrect as well, but he was here,

    4 he was behind that door somewhere. He was available.

    5 He could have been called by the Prosecution, and asked

    6 about those matters which are referred to in these

    7 documents. He could have given evidence, he could have

    8 authenticated the events in those documents. He was

    9 ready to give evidence.

    10 What did the Prosecution do? They said they could

    11 do without him, they could do without his evidence, and

    12 so they sent him home. No evidence-in-chief, no

    13 cross-examination. They sent him home, because they

    14 could do without his evidence. I bet they could do

    15 without his evidence. We respectfully submit that that

    16 is a clear indication of the way in which they could in

    17 fact prove these documents and the fact that they are

    18 reluctant to do it in that way at all. There is a much

    19 easier way for them, just put them in front of

    20 your Honours and say they are authentic. That way

    21 nobody can test the truth of what is in the documents.

    22 Your Honour, I make some general points in

    23 furtherance of my argument about the nature of many of

    24 these. First of all, documents which are by someone who

    25 is not a party or a witness. In almost every case,

  56. 1 there is no proof whatever that in fact the document is

    2 genuine. There is no proof whatever that in fact it is

    3 by the person whose name is said to be on the bottom of

    4 the document. There is no proof whatever of any of

    5 those things. In relation to documents whose author is

    6 unclear, there is no evidence of authorship, so one

    7 cannot even begin to say in relation to those documents

    8 if there is any degree of reliability to them. It is

    9 impossible to demonstrate anything like accuracy,

    10 reliability and truthworthiness, which we respectfully

    11 submit are the criteria that your Honours should apply.

    12 Documents purporting to be written by individual

    13 defendants; there simply is not a shred of proof that

    14 any document was in fact written by a defendant. Let me

    15 give you a plain example of the dangers, the fallacy

    16 that is being proposed to you. There are documents

    17 which are said to have been written by Mr. Delalic. They

    18 are said to be written by him because his nickname, his

    19 code-word was "Oganj". Your Honours know that in fact

    20 there were two people using the code-word "Oganj",

    21 because it is there in the record of the video. Of

    22 course the Prosecution are going to say, "we say it

    23 refers to Mr. Delalic when it is at the bottom of the

    24 document". Their problem is that there are two people

    25 using the same code-word, and it could equally be,

  57. 1 because there is no evidence about it, it could equally

    2 be the other man who is using the code-word "Oganj" too.

    3 Your Honour, that, we respectfully say,

    4 demonstrates the great dangers that are involved in

    5 following what may seem at first blush an attractive

    6 proposition by my learned friend; but when you look at

    7 it, look at an example like that, there lies the danger,

    8 that you are just asked by my learned friend to simply

    9 take these documents on trust. That is what he is

    10 doing. No proof, no authenticity, no reliability; "just

    11 trust us", say the Prosecution.

    12 We respectfully submit that if you allege that

    13 some document was written by a defendant, and that it

    14 can be used against that defendant, there are no two

    15 ways about it: it is incumbent on the person so

    16 asserting to prove that that document was created by

    17 that defendant. If you do not do so, then it should not

    18 be admitted, because it has no indication of reliability

    19 whatever.

    20 There are, of course, many ways in which documents

    21 can be proved. One of them has been referred to in this

    22 court, by showing them to a defendant in interview and

    23 getting him to admit that is his document. It has not

    24 been done, save in two innocuous examples in this case.

    25 I am not going to go through a list of the ways in which

  58. 1 you can properly and very simply prove documents, but

    2 there is one example of how you would do it. They did

    3 not bother to do that at interview, and now when it

    4 comes to actually doing the job properly, they try and

    5 put this Heath Robinson affair together, a skimpy way of

    6 getting you to admit it by saying, "we say it is

    7 authentic and therefore it is okay".

    8 Let me just come to this. This is what the

    9 Prosecution are inviting you to do. They say, "here is

    10 a document". They say, "it bears the name of", for

    11 example, "Mucic". They say, "it is therefore without

    12 any further evidence demonstrated to be Mucic's

    13 document". That is a very dangerous process. The

    14 Prosecution's approach to proof of documents, we say, is

    15 wholly cavalier. The approach appears to be there:

    16 your Honours are professional judges. We can put any

    17 document in front of you we like. When we do that, we

    18 submit to you the document is true and was written by

    19 the person it purports to have been written by. We do

    20 not need to prove anything else and all you have to

    21 decide is the weight to attach to it. The fact that it

    22 is a forgery matters not; if we say it is reliable, that

    23 ought to be enough, and if there is some challenge to

    24 authenticity of the documents, all that needs to happen

    25 is counsel for the Prosecution has to give evidence, he

  59. 1 says, "it is a document which has the appearance of a

    2 genuine document", just like the ones you have already

    3 been looking at. There, they say, "you have all the

    4 authenticity you need". That, we submit, is the process

    5 of admitting documents, the process the Prosecution

    6 invites you to employ.

    7 Can I just give you, it may sound like an absurd

    8 example, but it may help to illustrate what the process

    9 is in a light-hearted way, one which I think will draw

    10 your Honours' attention to what is really involved. It

    11 is at this point that I am going to make fun of

    12 Mr. Moran. I am sure he does not mind that, but just

    13 follow me if you will.

    14 Let us assume for a moment that my learned friend

    15 Mr. Moran suddenly becomes suspected of being a Texan,

    16 which, of course, as your Honour knows is a very serious

    17 offence. As a result of that, a search warrant is

    18 obtained to permit his office here in The Hague and

    19 other premises to be raided and searched. In accordance

    20 with that search warrant, an elite squad of the Vienna

    21 police is assembled and they go in and raid his room

    22 here in the Tribunal. It is an office to which many

    23 have access. On the desk is a document. It is seized

    24 along with many other documents. That main document is

    25 signed "T Moran" and it bears an official looking stamp,

  60. 1 which no doubt says the word "Texas" somewhere on it.

    2 The main document contains a number of statements and

    3 they are these: "Texas is a small island in the south

    4 Pacific"; "there are no cowboys wearing silly hats in

    5 Texas"; "Texas was discovered in 1350 by an obscure

    6 Italian explorer who was very lost. When he got home he

    7 said to his fellow adventurers 'I now know what Dante

    8 was getting at when he wrote “The Inferno." Those are

    9 plainly absurd statements.

    10 Amongst the many other documents which are

    11 recovered are a number which refer to Mexico. When the

    12 court case comes up and we put Mr. Moran on trial for

    13 being a Texan, we place before the court the main

    14 document and all the other documents which mention

    15 Mexico, and then we make these assertions: "the main

    16 document bears his signature, we have no evidence

    17 whatever that this is so, but you must take this as an

    18 undisputed fact. The stamp on it looks like the other

    19 ones we have been looking at in the case and it has the

    20 appearance of being genuine. Therefore you must take it

    21 that it is genuine. There is a thread running through

    22 the document, it is all about Texas. There is also a

    23 thread running through the other documents, it is all

    24 about Mexico. Of course, Mexico is very near Texas, is

    25 it not? These threads mean Mr. Moran is a Texan and he

  61. 1 is guilty of the offence, even though we have no proof

    2 whatever that it is his document".

    3 Taking all those facts together, the court can say

    4 not only is it authentic and genuine but it is both

    5 relevant and probative and Mr. Moran is proved to be, as

    6 we said, a Texan. In fact, the document was really

    7 written by Mr. Ackerman, who planted it on his desk with

    8 a view to damaging his reputation as a well-educated,

    9 debonair man. That is the exercise that you are being

    10 invited to do in this case, your Honours. Absolutely

    11 that, putting 2 and 2 together and ending up with 5.

    12 Your Honour, we respectfully submit this: this is

    13 a good opportunity for your Honours to lay down a set of

    14 rules, rules comparable to the decision in the Tadic

    15 case involving hearsay; rules which will stand this

    16 Tribunal in good stead and will set a benchmark for the

    17 way in which documents can properly be admitted, using

    18 those features that I have adverted to in so doing.

    19 I know through having discussed it with him that my

    20 learned friend Mr. Ackerman has a formulation which he

    21 would wish to suggest to your Honours, because, of

    22 course, this is a matter of general importance, not just

    23 to the defendants Mucic and Delalic, but to all

    24 defendants, not just in this trial but to others as

    25 well.

  62. 1 What we say is that your Honours should reject

    2 what is an unjust and unworthy system which you are

    3 invited to take on board by the Prosecution.

    4 Your Honours will be relieved to know that I am not

    5 going to take you through document after document,

    6 line by line. I am not going to do that. I am simply

    7 going to pick one example in order to illustrate that

    8 which I have been saying. It is document 130. The

    9 Prosecution make great play of this document. The

    10 reality is that there is no evidence whatever that that

    11 document was created by Zdravko Mucic. There is no

    12 evidence that it is a genuine Bosnian Consulate

    13 document. There is a perfectly simple way to do that.

    14 JUDGE JAN: The consul is not Republic, or is he a counsel,

    15 or is he a diplomatic officer?

    16 MR. GREAVES: A consul is entitled to the protections of the

    17 relevant convention that deal with diplomats.

    18 JUDGE JAN: I was just wondering whether the consul in this

    19 document, is he just equivalent to Republic and not to

    20 anywhere else?

    21 MR. GREAVES: I have not a clue, and I am not going to give

    22 evidence, your Honour. It is undated, and I think that

    23 was something that your Honour Judge Jan pointed out,

    24 that there is no date on this document. If it is a

    25 genuine document, that is rather curious, civil

  63. 1 servants, of course, being notorious for putting dates

    2 on things. This document could have been created at any

    3 time or by anybody, and here is an important fact, it is

    4 addressed to the 4th Corps at Mostar. You have heard

    5 about the 4th Corps at Mostar. General Pasalic knows a

    6 little bit about the 4th Corps at Mostar. He could have

    7 been asked about this document and he was not. Of

    8 course, there is a contrast here with the custodian of

    9 records, Mr. Omerkic. Your Honours, I am told we are due

    10 to have another custodian of records this afternoon.

    11 The contrast between the process of calling a custodian

    12 of records and shoving a load of documents in front of

    13 you you may think is rather noteworthy.

    14 The document was not found in Mr. Mucic's

    15 possession. He was never asked about it in interview

    16 and he could have been. Those are points which apply to

    17 pretty well every document, with perhaps a couple of

    18 exceptions in this case. There were some, of course,

    19 which Mr. Delalic was invited to examine and admit. By

    20 themselves, they are pretty innocuous, but these are

    21 comments that we say apply pretty well equally across

    22 the board. There is not a scrap of evidence of

    23 authenticity and reliability. We say the whole exercise

    24 is flawed, Prosecution has not even bothered to try and

    25 suggest that they are authenticating these in anything

  64. 1 like a proper manner.

    2 Well, that is pretty well all I have to say.

    3 There is one final thing concerning the videos. If you

    4 think they help the Prosecution, of course that is a

    5 matter for you. We submit they are of absolutely zero

    6 relevance and zero probative value and if they do have

    7 any of those qualities, they have precious little

    8 weight. The Prosecution wants to play pictures of Zara

    9 Mrkajic, plump and well fed, a prisoner in the camp;

    10 that is their affair. We say they are of precious

    11 little assistance in this case.

    12 Your Honour, those are my submissions. We

    13 respectfully invite you to reject this process. It is

    14 an unjust one, it is unfair, and the case of Mr. Ramic

    15 demonstrates that absolutely and clearly. We say that

    16 is how they should have done it, they ducked it. It is

    17 an unjust way in which they are inviting you to deal

    18 with these documents. I invite you to say, "we are

    19 going to resist that, we are going to set a proper and

    20 necessarily high standard for the admissibility of

    21 documents and leave this Tribunal a sound basis which

    22 others can follow for the admissibility of documents in

    23 a proper and disciplined way". Thank you very much,

    24 your Honours.

    25 JUDGE KARIBI-WHYTE: Thank you very much, Mr. Greaves.

  65. 1 MR. ACKERMAN: With the leave of your Honours, I will just

    2 address you from here, because I expect to be quite

    3 brief.

    4 JUDGE KARIBI-WHYTE: Yes, you can.

    5 MR. ACKERMAN: Thank you, your Honour. When I began to think

    6 about these documents, about three things came to mind.

    7 The first of those, of course, being an advocate, was

    8 the interests of my client. But to a great extent, this

    9 issue goes significantly beyond that. The law has

    10 always been a very important thing to me, something that

    11 I have learnt to love throughout my career, and my

    12 career has taken me to a lot of different places in

    13 that, including a place very similar to where

    14 your Honours are sitting this afternoon. For there to

    15 be a rule of law, there must be a public respect for

    16 law. That is what makes the rule of law possible.

    17 As I then began to think about that, I began to

    18 think about what the role of your Honours is with regard

    19 to this issue and the role of this Tribunal. The

    20 Tribunal, of course, needs to be seen by the world as a

    21 place where fair trials can be had. Your fellow judges

    22 on this Tribunal in handling future cases are entitled

    23 to the wisdom and guidance of you original judges from

    24 this Tribunal as they approach the work that they will

    25 have to do here.

  66. 1 One deficiency that I think is clear as you look

    2 at the decisions of this Tribunal so far is a clear and

    3 comprehensive decision regarding how this Tribunal

    4 should handle documentary evidence. Documentary

    5 evidence is a very complicated and difficult evidence

    6 issue, one which courts across the world have dealt with

    7 for centuries in different ways, and it is an issue

    8 which has evolved as our society has become more and

    9 more dependent upon paper and communication through the

    10 use of paper, and now we are approaching the electronic

    11 age and in the electronic age, where all sorts of

    12 questions regarding computer records and things of that

    13 nature are becoming important, in terms of documentary

    14 evidence.

    15 I think this Trial Chamber should be willing and

    16 is certainly capable to take some time and to draft for

    17 your fellow judges and the future judges here, and for

    18 notice of the world community, a comprehensive set of

    19 rules by which you can arrive at a decision about the

    20 documents that are before you today. It is something

    21 you will necessarily have to do for yourselves in going

    22 through this process, in any event. I would hope that

    23 you would decide to share it with your fellow judges and

    24 future judges.

    25 I know from my own experience that one of the

  67. 1 great enemies of a judge is expediency. You tend to be

    2 sitting on a particular case and become so wrapped up in

    3 that particular case that expediency begins to take on

    4 an importance that it never deserves, but the temptation

    5 is always there, and it is one that we must all resist.

    6 Even in the lowest court, when a judge speaks of

    7 the law, the judge always speaks beyond the case before

    8 him, always speaks beyond the case before him, and when

    9 you speak of the law in this case, you are speaking

    10 beyond the Celebici case. You are speaking to your

    11 fellow judges, you are speaking to history, because in

    12 an International Tribunal, we all must recognise what we

    13 do here as having historical significance.

    14 We sit here 50 years later and we can read what

    15 those judges at Nuremberg and those judges at Tokyo did

    16 and wrote and said, because it is important and it is

    17 published and it is available. Some of those decisions

    18 and pronouncements look pretty good 50 years later; some

    19 of them do not stand the light very well at all.

    20 When we talk about documentary evidence, pieces of

    21 paper sought to be introduced in a case as evidence in

    22 the case, we are virtually in every case speaking of

    23 evidence that is hearsay. They contain out of court

    24 statements offered for the proof of their contents.

    25 That is the classic definition of hearsay. So you

  68. 1 always begin, in my mind, an analysis of documentary

    2 evidence with that view, the document that is being

    3 offered before you is hearsay.

    4 One of the things about hearsay evidence, and the

    5 reason that the law is so careful about admitted hearsay

    6 evidence, is the understanding that it cannot be

    7 cross-examined, and with that understanding, the

    8 statements of the declarant contained in those documents

    9 must have such circumstantial guarantees of

    10 trustworthiness that the court can say cross-examination

    11 would not affect it in any way. It is so golden as it

    12 stands that cross-examination is not necessary.

    13 These documents, I submit, your Honours, need to

    14 be viewed in exactly that light, so the first task that

    15 you must perform is you look at them as hearsay, which

    16 is what they are, and determine whether there are

    17 circumstantial guarantees of trustworthiness that would

    18 make cross-examination a futile exercise. If you find

    19 that there are not, then your inquiry ends at that

    20 point. There is no need to go beyond there. If you

    21 find those circumstantial guarantees of truthworthiness

    22 do exist, then you must go next, I suggest, to the

    23 question of authenticity.

    24 I think authenticity is sometimes difficult in

    25 application but rather simple in understanding. A

  69. 1 document is authentic if it is what the proponent of

    2 that document says it is; in other words, if I hand you

    3 a piece of paper and say, "this is the front page of

    4 today's New York Herald Tribune -- International Herald

    5 Tribune", if there is proof it is what I say it is, then

    6 it is an authentic document. If I hand you a piece of

    7 paper found on Mr. Moran's desk which contains what

    8 appears to be his signature and say to you

    9 "your Honours, this is a letter written by Mr. Moran",

    10 by that I have not authenticated that document, I would

    11 have to go beyond that, I would have to find a witness

    12 that watched him sign it, I would have to find an expert

    13 that could compare the handwriting, I would have to find

    14 some other evidence that I could present to you to make

    15 that document authentic.

    16 If, as you look at each of the documents in this

    17 case, you must conclude that the Prosecutor has failed

    18 beyond a reasonable doubt to prove to you that the

    19 document is authentic, then that is where your inquiry

    20 ends. It does not go beyond there. If on the other

    21 hand you find that there is proof beyond a reasonable

    22 doubt that the document being offered to you is

    23 authentic, then you must perform a third and final

    24 analysis.

    25 That third and final analysis has to do with the

  70. 1 concept of relevancy and probative value. The question

    2 that you ask yourselves in that case is, "do the

    3 statements contained in the document tend to make an

    4 issue contained within the indictment in the case that

    5 needs to be proved beyond a reasonable doubt either more

    6 probable or less probable?". If it does, then it has

    7 relevance and probative value; if it does not, then

    8 again your inquiry ends and the document is not

    9 admitted.

    10 It seems to me that the process I have just

    11 described is one that in one form or another any judge

    12 must go through in terms of deciding on whether or not

    13 documentary evidence is admitted into a case. I would

    14 hope, and I would strongly suggest to your Honours, that

    15 you apply that kind of an analysis to these documents,

    16 but also take some time to express your wisdom in that

    17 regard in writing so that future tribunals, future

    18 prosecutors, future defence lawyers will have a guide to

    19 help them prepare their cases. Thank you very much for

    20 your time.

    21 JUDGE KARIBI-WHYTE: Thank you very much. Any other

    22 contributions?

    23 MS. RESIDOVIC: Your Honours, we have been participating in

    24 this very important difficult trial, which is being

    25 watched by the world, since 10th March, and all people

  71. 1 interested in justice are watching us, whether we are

    2 correctly establishing the facts, whether we are

    3 contributing to the development of law and justice. My

    4 distinguished colleagues have drawn your attention to

    5 the provisions of the Statute, Articles 20 and 21, and

    6 I must say with satisfaction that taking part in these

    7 proceedings until quite recently as an attorney, the

    8 Defence counsel of my client, Mr. Delalic, I was

    9 absolutely satisfied in the way in which this Trial

    10 Chamber has been conducting the proceedings and seeking

    11 to ensure and protect the rights of all the accused,

    12 including my client.

    13 However, this week we have been confronted with a

    14 very difficult task that my learned colleagues have

    15 drawn the attention of the Trial Chamber to with

    16 abundant arguments. As the Defence counsel of

    17 Mr. Delalic, for which the Prosecutor is offering

    18 evidence claiming that it is relevant, in a method which

    19 is inappropriate to the proceedings so far and it puts

    20 us in a very difficult position.

    21 Submitting one document after another, the

    22 authenticity of which was not proven in any way, whose

    23 probative value was not proven, a document for which my

    24 client could not cross-examine the witness and implement

    25 his rights guaranteed by Article 21, we almost accepted

  72. 1 this procedure, and responded to each of the documents.

    2 We have a large number of documents before us. We

    3 are ready, if you consider that to be the appropriate

    4 procedure, that is the kind suggested by the

    5 Prosecution, rather than the one described by my

    6 colleagues, we are ready to argue each individual

    7 document, but not in the way the Prosecutor is

    8 suggesting; that is to compare an unauthentic text with

    9 highly doubtful value with another unauthenticated text

    10 of a similar value, but rather by grouping some of those

    11 documents to draw the attention of the Trial Chamber to

    12 the extent to which they are not authentic and how

    13 problematic their reliability is and what little value

    14 they have, and which does not compare at all well with

    15 what we have been doing ever since 10th March.

    16 Since we have before us a considerable number of

    17 documents, which we would refer to if that is your

    18 decision, in that case, I would ask that my colleague,

    19 Eugene O'Sullivan, and myself could share and divide

    20 between us our arguments. We would be forced to analyse

    21 the documents in a way which we do not consider to be

    22 appropriate, but if that is in the interests of our

    23 client, we will do that.

    24 Before you give us instructions as to the way in

    25 which we should proceed, I should like to draw your

  73. 1 attention to two points only. Within the series of

    2 documents that my learned colleague Mr. Niemann has led

    3 us through very skilfully, we heard many facts about

    4 the war, we heard many facts about Mr. Delalic, we

    5 learned about other facts conveyed by hearsay without

    6 any possibility of checking what was said. Forgive me

    7 for reminding you of something, which I do not like an

    8 attorney to do, because I objected when this was done by

    9 my colleague Mr. Niemann.

    10 Your Honours, I was in the war for four years,

    11 I spent four years in a city under siege, and every day

    12 I experienced thousands of facts brought by war, weapons

    13 and shooting and wounding and the exile of my own

    14 children, and during those four years, we never shed any

    15 tears. A few days ago I saw a wonderful film by Ademir

    16 Kenovic, awarded in Cannes. That film put into two

    17 hours many facts from the lives of us, 300,000

    18 inhabitants of Sarajevo. Not one of those was truthful,

    19 but it reflected some of the truth of the war, and we as

    20 spectators were crying.

    21 Therefore telling us the stories of many people

    22 who lived in Konjic, who fled from Konjic, who came to

    23 clubs in Austria, Germany and elsewhere and recounted in

    24 their own words about something that happened or may not

    25 have happened, that story that we heard in the past few

  74. 1 days is not one that I am prepared to eliminate using

    2 the same procedure. Something else that perhaps may not

    3 be also absolutely appropriate, but Judge Jan drew

    4 attention to it, saying that in the course of the war,

    5 criminal proceedings were instituted against some of the

    6 defendants here.

    7 I know that you are not bound by national

    8 legislation, but I would like to indicate to

    9 your Honours that according to our law, criminal charges

    10 are just charges. They are not any condemnation. They

    11 are studied by the investigating magistrate and only

    12 then is a decision taken to remove any doubts.

    13 Therefore, according to our laws, which are quite

    14 different from those here, the accused and their

    15 relatives cannot testify, and they are not bound to tell

    16 the truth. Many of the documents referred to by the

    17 Prosecutor may be indicative of a period in which the

    18 defendants, the accused, the family or relatives

    19 participated in some such proceedings may have written

    20 something that may or may not be correct. The

    21 Prosecutor has not even tried to prove the reliability

    22 of any of those facts or those sources.

    23 Therefore, completing this part of my objection

    24 before going on to an analysis of each of the individual

    25 documents, I wish to say once again that we fully

  75. 1 endorse what has been said by colleagues Greaves and

    2 Ackerman, so we would like your Honours to give us

    3 instructions as to how we should proceed from now.

    4 JUDGE KARIBI-WHYTE: I suppose this is a real surprise to

    5 me. What I expected you to do was to answer the

    6 submissions of the Prosecutor. If you have any

    7 shortfalls in them, if you have any criticisms of them,

    8 you make them. It is not for me to direct you

    9 differently from what has been happening within the

    10 Trial Chamber. I thought that was the normal method and

    11 that might determine the Trial Chamber's approach.

    12 MS. RESIDOVIC: Thank you, your Honours. My colleague

    13 Eugene O'Sullivan, if you allow it, and in view of the

    14 large number of objections that we will have, he will be

    15 the first to make them.

    16 JUDGE KARIBI-WHYTE: You are free to argue your case

    17 whichever way you want.

    18 MR. O'SULLIVAN: Thank you, your Honours. My submissions

    19 will be relatively short and with your indulgence I will

    20 make them from here.

    21 First of all, I will begin by saying that on

    22 behalf of Mr. Delalic we adopt in toto previous

    23 submissions made by Mr. Greaves and Mr. Ackerman. I will

    24 begin myself with a general observation referring first

    25 to your decision of 12th September, where you ruled that

  76. 1 the chain of custody of the folders had been proven, but

    2 not the contents of those folders. As we have heard so

    3 far, proving the authenticity of these documents is the

    4 first and fundamental link and step in proving these

    5 documents and determining their admissibility.

    6 I would like to remind your Honours of what the

    7 record clearly states. My friend Mr. Niemann has said

    8 that according to Mr. Moerbauer's testimony he was handed

    9 folders by his colleague, Navrat, but the contents of

    10 those folders were not analysed, according to

    11 Mr. Moerbauer, until 22nd March through 2nd April, when

    12 he marked those documents in Vienna, and when he came to

    13 this Tribunal he could not identify his mark on any of

    14 the documents. Officer Moerbauer was called

    15 specifically -- for the specific purpose of identifying

    16 those documents. Any suggestion, as my learned friend

    17 Mr. Niemann has put before you, that Officer Moerbauer

    18 adopted a new numbering system at the request of the

    19 Office of the Prosecutor is not borne out by his

    20 testimony or the facts.

    21 If I might briefly address you now on the issue of

    22 videos, three videos in particular, the three allegedly

    23 from INDA-BAU. This morning, my friend Mr. Niemann said

    24 that the discrepancy of three videos between the 51 and

    25 the 54 could be explained easily by the fact that they

  77. 1 were miscounted. Might I remind your Honours that the

    2 record is quite clear. The witness Navrat was led

    3 through examination-in-chief by Mr. Niemann on

    4 5th August. Officer Navrat, in Exhibit 165, a

    5 Niederschrift, clearly testified to the fact that he

    6 seized 51 videos, page 5644, his hand-written

    7 Niederschrift attests to that.

    8 Mr. Niemann never doubted or questioned Mr. Navrat

    9 to ask him if that was a correct number or not.

    10 Mr. Navrat stood by that number. In fact the only thing

    11 Mr. Niemann questioned Mr. Navrat about was the

    12 correctness of the date on the Niederschrift, to which

    13 Mr. Navrat admitted there was an error. Therefore there

    14 was no questioning of Navrat to ask him to acknowledge

    15 that the number of 51 videotapes was incorrect.

    16 Mr. Navrat in cross-examination confirmed that the

    17 operation was well manned, there was no pressure, there

    18 was no hurry, there were no complaints and no incidents.

    19 Mr. Navrat's report of 18th March again confirms

    20 that there were 51 videotapes seized. The second

    21 relevant point in the testimony of Officer Panzer, again

    22 led by Mr. Niemann on direct examination on

    23 2nd September, shows that in the report prepared by

    24 Panzer, 22nd April, there are 54 videotapes, 54

    25 videotapes which according to Panzer he marked on

  78. 1 19th and 20th March, and the first indication that there

    2 is a discrepancy in numbers is this report of 22nd April

    3 1996. It is clear therefore that there is a discrepancy

    4 of three videos, but any suggestion there is an error in

    5 counting is not borne out by the facts.

    6 Might I remind your Honours of the transcript at

    7 page 3779; if I go back to that date, that is the

    8 cross-examination of Mr. Moerbauer by my learned friend

    9 Mr. Moran. Here is why I raise this point with you. At

    10 that page, 3779, line 10, Mr. Moran asks Moerbauer:

    11 "It is not hard for a trained police officer to

    12 count from 1 to 51, is it?"

    13 At that point, Mr. Niemann objected. At the bottom

    14 of that page, beginning at line 22, Mr. Niemann said:

    15 "It is absurd to be putting these questions to

    16 this witness. Counsel knows the answer clearly.

    17 Everybody else in this courtroom knows the answer."

    18 With all due respect to my friend Mr. Moran,

    19 I agree with the Prosecutor. Police officers do know

    20 how to count.

    21 My final remarks on these videos is the point

    22 raised on having shown a video to a witness that has

    23 taken place in this courtroom. Of course, that proves

    24 absolutely nothing with regard to the provenance of a

    25 videotape. More specifically, the portion of video

  79. 1 shown to Dr. Grubac and Dr. P, interview conducted, is

    2 Zvonko Maric and Jadranka Milosevic; your Honours, the

    3 original footage shown to these two witnesses was

    4 provided to the Delalic Defence by the journalists

    5 themselves, by Maric and Milosevic. Indeed it was the

    6 Delalic Defence who provided that videotape through

    7 discovery to the Prosecution. That does not -- that is

    8 not footage from the tape I46. That was provided by the

    9 Defence to the Prosecution.

    10 So to sum up, your Honours, there is no confusion

    11 on the part of the police. The record is clear. They

    12 can count, they did count, they counted differently.

    13 These videotapes therefore have not been authenticated,

    14 the relevancy is not shown and they are of little or no

    15 probative value and for those reasons we respectfully

    16 submit that they should be excluded from evidence.

    17 The second point I would like to briefly address

    18 your Honours on is in relation to Exhibit 130, which my

    19 friend Mr. Greaves made the central document to his

    20 submissions. I will not repeat the Articles and the

    21 Rules to which he referred, those being 21, 20, Rule 89

    22 and Rule 95, but I would add just one point with regard

    23 to the position of Mr. Delalic in this document. This

    24 document, of course, purports to be a letter of

    25 Mr. Mucic, which allegedly presents an account of matters

  80. 1 in 1992. We say that if your Honours should rule this

    2 document admissible, and should you decide that it is

    3 Mr. Mucic's document under Article 21(4)G, Mr. Mucic, of

    4 course, cannot be compelled to give testimony and the

    5 consequence of that for Mr. Delalic is that under Article

    6 21(4)E Mr. Delalic is deprived of his right to

    7 cross-examine. Similar argumentation given by

    8 Mr. Greaves on the general nature of this, I wish to

    9 reiterate it on behalf of Mr. Delalic, that the

    10 admissibility of this document would gravely impact upon

    11 his rights under Article 20 and Article 21, and

    12 therefore we respectfully submit that this Exhibit 130

    13 should be excluded on the basis of Rule 89 and Rule 95.

    14 At this point, my learned colleague

    15 Madam Residovic will continue.

    16 MS. RESIDOVIC: With all due respects, your Honours, I wish

    17 to remind you that making my objections up to document

    18 125 as submitted by the Prosecutor, I presented the

    19 arguments why these documents should not be admitted

    20 into evidence. Appreciating the time devoted to this

    21 important issue, and in order to avoid repeating with

    22 respect to each document which is beyond doubt and

    23 clear, I wish in connection with all the other

    24 documents, before passing on to more specific

    25 objections, I wish to say the following: first, the

  81. 1 Prosecution has not managed to prove that any one of the

    2 documents offered to the court comes from the search in

    3 INDA-BAU.

    4 Witness Moerbauer, as you will recall, and the

    5 Prosecution referred to his testimony, indicating the

    6 pages and lines of their testimony in the transcript,

    7 said only that he had received from witness Navrat some

    8 binders, and this witness later, several days after

    9 having received this cardboard box from witness Navrat,

    10 analysed those documents, and all that we have in the

    11 testimony of this witness is the Bericht, or rather his

    12 analysis, dated 22nd and 26th April, when he submitted

    13 that analysis to the Austrian court. Therefore the

    14 period from 18th March until the end is a period within

    15 which we are unable closely to follow the fate of the

    16 folders, and still less of the contents of those

    17 folders.

    18 In accordance with your instructions,

    19 your Honours, which I referred to earlier on, the

    20 Prosecution also called the witness who seized the

    21 evidence from INDA-BAU. Witness Navrat stated clearly

    22 that he did not on the spot mark a single document.

    23 This witness did not recognise any single document, and

    24 furthermore witness Moerbauer, who did the analysis,

    25 testified before the court that all the markings that he

  82. 1 personally put on the documents during his analysis had

    2 disappeared, and that he personally was unable to

    3 recognise here in court any one of those documents,

    4 because he does not know Bosnian, because he could not

    5 find his markings, and he never had any expert analysis

    6 of any handwriting.

    7 Therefore the first question that applies to all

    8 the documents proposed by the Prosecution is that the

    9 Prosecution has not in any way provided proof of the

    10 source of these documents, that is the place from which

    11 these documents come. Regarding the authenticity of

    12 documents, it is also necessary for the Prosecution to

    13 show us who is the author of which document.

    14 Unfortunately, in a very lengthy analysis of individual

    15 documents and comparing them with others, the

    16 Prosecution has failed to provide a single element of

    17 proof which could confirm in a method that would be

    18 appropriate who is the author of any one single document

    19 being offered.

    20 I shall now try to group some of those documents,

    21 but before that, let me say with respect to documents

    22 that I cannot put in a group, let me comment on them

    23 first. A document that I have not commented on was

    24 document 127. Could I please be allowed to analyse that

    25 document? You know that it is an order dated 3rd June

  83. 1 1992, containing certain facts in connection with the

    2 establishment of a railway line, and traffic along it.

    3 Comparing this document with other documents, the

    4 Prosecutor is trying to lead you to believe that the

    5 co-ordinator has certain command authority. I should

    6 like to remind you of the testimony of General Divjak,

    7 who was shown this document, and who made a distinction

    8 before you here, between Neretva and Naredjenje and

    9 order and command, and then also stated clearly that the

    10 signature and function of co-ordinator does not have any

    11 value as an order or any authority to issue orders, that

    12 the co-ordinator is only a person who mediates and can

    13 sign a document in that capacity.

    14 I also wish to draw your attention to a document

    15 admitted by this Trial Chamber, and issued by the

    16 supreme staff of Bosnia-Herzegovina and signed by army

    17 general Rasim Delic, according to which a co-ordinator

    18 in the armed forces of Bosnia-Herzegovina does not have

    19 any command, but only an mediatory role. The command

    20 function rests with the bodies which appointed that

    21 co-ordinator. In view of the fact that there is no

    22 thread, that the Prosecutor is referring to, this

    23 document has no relevance with regard to the position of

    24 my client and particularly not any relevance to the

    25 indictment that is before the Trial Chamber.

  84. 1 Therefore, regardless of where that document comes

    2 from, and I have already said that we do not know the

    3 source, nor do we have any evidence to prove that it

    4 comes from INDA-BAU, this document has no probative

    5 value, nor relevance with respect to the indictment, its

    6 relevance is zero.

    7 The next document which the Prosecution try to

    8 prove the authenticity and reliability of is document

    9 128. If you recall, your Honours, it is the request for

    10 conducting investigations against Mr. Zejnil Delalic and

    11 Mr. Zdravko Mucic, and as you will also recall, this

    12 document, as well as the criminal charges recognised by

    13 General Pasalic, was tendered for its limited scope,

    14 that is from the position of the functions held by those

    15 persons. Allow me, your Honours, unlike the Prosecutor

    16 who tried to prove the limited probative value of this

    17 document, he linked it with other documents pursuing the

    18 thread as my learned friend likes to say; let me add the

    19 following: precisely in connection with that limited

    20 scope, not only of this document but also of the

    21 documents number 137, 141 and 125, and these are --

    22 I apologise, my client has just had a suggestion to

    23 convey to me and I apologise for the interruption.

    24 This document linked to these other documents,

    25 that is numbers 125, 141 and 137, show exactly to what

  85. 1 extent these documents would be unreliable even within

    2 their limited scope; namely, can these documents show at

    3 all what position and function was held by my client in

    4 the relevant period. If you remember the document

    5 report to the general staff which was shown to General

    6 Pasalic, in which certain positions were indicated, you

    7 will see immediately that in that document the person

    8 who will later be used as one who could authenticate a

    9 document, that is Edib Saric, that person is mentioned

    10 in the document as assistant commander, and in the

    11 document that has been admitted into evidence we will

    12 see -- that is the document dated 14th August -- Edib

    13 Saric appears as a person appointed as deputy commander

    14 of Tactical Group 2, the commander of which is Husein

    15 Alic.

    16 Then we see again that this name appears on

    17 20th August as assistant for security affairs in the

    18 temporary command group JUG, and then in the exhibit of

    19 the Prosecutor dated 24th November 1992, this same

    20 person appears as assistant commander in the operative

    21 group. When all these documents were shown to the

    22 witness General Pasalic, he stated that when he was

    23 compiling the report for the supreme command on

    24 7th December he had no documents or evidence as to the

    25 functions and positions held by individual people listed

  86. 1 in this document. Therefore, this document in itself

    2 cannot be indicative of the positions and functions of

    3 any one of those persons mentioned in the document or

    4 any others.

    5 Document 128 is quite in contrast with the claims

    6 in the criminal charges identified by General Pasalic as

    7 criminal charges submitted by the 4th Corps. No one --

    8 comparing these two documents alone, you will see,

    9 your Honours, that the position of Mr. Delalic on

    10 31st May is quite contrary to the position indicated in

    11 this document, and later on in the document dropping

    12 charges, that same function will not appear. Therefore

    13 the reasons why this is being offered as relevant

    14 evidence are also highly problematic, and the relevance

    15 of these documents outside that limited scope does not

    16 exist with respect to the charges contained in the

    17 indictment.

    18 Your Honours, shall I continue or would it be

    19 convenient to have a break now before going on to the

    20 next document I wish to comment on?

    21 JUDGE KARIBI-WHYTE: I think we will have a break and come

    22 back at 4.30.

    23 (4.00 pm)

    24 (A short break)

    25 (4.30 pm)

  87. 1 JUDGE KARIBI-WHYTE: Ms. Residovic, how much longer are we

    2 to expect you to address us, because we are not sitting

    3 tomorrow, and we are likely to be off for quite some

    4 time.

    5 MS. RESIDOVIC: Your Honour, as you put it yourself, and

    6 the Prosecutor also mentioned it, these are important

    7 documents. As I said, I am going to attempt to group

    8 the documents and present them in that manner. I know

    9 that you are not asking this question to limit me in any

    10 way, but at this point, I cannot tell you precisely how

    11 much time, but what I am going to try to do is to group

    12 the document and to be very concise in presenting my

    13 arguments and only where I must -- where I feel I need

    14 to be present an individual document, I will do that.

    15 I am sorry that I cannot give you a precise answer.

    16 This will take a while. I would like to finish it

    17 today. However, if I do not manage to do that, the

    18 arguments will have to continue thereafter.

    19 JUDGE KARIBI-WHYTE: I was just trying to alert you as to

    20 what perhaps you might face in terms of time. It is not

    21 to compel you to change your style, but just to make you

    22 know what you might face. Mr. Ackerman?

    23 MR. ACKERMAN: Your Honour, may Ms. McMurrey have leave to

    24 depart at 5.10? She has some obligations outside the

    25 Tribunal she needs to deal with.

  88. 1 JUDGE KARIBI-WHYTE: She is free to be discharged.

    2 MR. ACKERMAN: Thank you.

    3 MS. RESIDOVIC: Thank you, your Honour. May I continue

    4 now?

    5 JUDGE KARIBI-WHYTE: Yes, you may.

    6 MS. RESIDOVIC: Thank you. My presentation hereafter is

    7 facilitated by the fact that the majority of the legal

    8 arguments which I had in mind have already been

    9 presented by my colleagues, and as I pointed out before,

    10 I will just try to point out some of these arguments in

    11 connection with the groups of documents that I am trying

    12 to present. The Prosecutor presented as evidence a

    13 number of documents that have a look of official

    14 documents. I have only analysed some of them. As my

    15 learned colleague Greaves said, I would like to restate

    16 some of these things in regard to these documents. We

    17 do not know where they come from. We do not know their

    18 authenticity, whether it is real or not.

    19 There is only one way to determine this, to call

    20 the representatives of the institutions as we have

    21 already tried the best we could in cases of some

    22 documents by certain Bosnian authorities; in other

    23 words, we would like to call the representatives of

    24 these institutions before this Tribunal, so that they

    25 may be able to authenticate these documents. As I said,

  89. 1 I do not need to repeat the stamp and everything else

    2 that surrounds this document. This is not possible to

    3 fabricate, forge. Some of these documents are in

    4 handwriting. There are quite a few of such documents,

    5 I have not counted them, but among the ones that we have

    6 not presented arguments on, there are nine, and I do not

    7 wish to analyse these nine documents for you,

    8 your Honours, and show for each one that the thread

    9 referred to by the Prosecutor, with respect to their

    10 authenticity, exists or not.

    11 The position of the Delalic Defence is that this

    12 thread does not exist. With respect to the remaining

    13 hand-written documents, I will remind you of the

    14 arguments by my learned colleagues which point out that

    15 some of these hand-written documents, for some of these

    16 documents the Prosecutor claims that they were written

    17 by some third persons and for some documents, he is

    18 trying to say that they were written by my client. He

    19 has not shown who actually wrote these documents or

    20 those submissions or those papers, or parts thereof. He

    21 has not demonstrated in any real way where these

    22 documents come from, where they were compiled. He did

    23 not show what the value of these documents is or who

    24 they belong to.

    25 From all these documents, I am only going to point

  90. 1 out two. One of them is the document 126, which was

    2 written 27th April 1993, according to the document.

    3 This is the document which was created much later than

    4 the events that are covered in the indictment. The

    5 value that the Prosecutor sees in this document is that

    6 it speaks to the conflict of the HVO and the BH, the

    7 possible development, possible agreement of Milosevic

    8 and Tudjman, of the possibility of certain events

    9 happening, so there are no references to my client

    10 whatsoever; there are no references in it to the charges

    11 against my client or any other client in the indictment,

    12 and there is even a further problem with this document.

    13 If you look at the first paragraph, it speaks of

    14 some persons who allegedly went to Czechoslovakia, so we

    15 could rightly ask; does this document come from

    16 Czechoslovakia? Was it created there and somehow found

    17 its way to the Prosecution and was presented here?

    18 The next hand-written document is the document

    19 131. You will recall this document, it is entitled "The

    20 Adventurer". Could the technical booth please display

    21 this document 131 in its Bosnian version, so that we

    22 could see how these documents look, these documents

    23 presented by the Prosecution, with the intent to show

    24 its authenticity and reliability.

    25 My colleague Ackerman made an example of how such

  91. 1 a document could be found in a garbage bin, where

    2 somebody could have put down in writing his musings, and

    3 the Prosecution shows us this document, not only

    4 analysing it but contending that this document was

    5 written, which was written in the third person singular,

    6 written by the deputy commander of Tactical Group 1, and

    7 I would like the next page of this document to be shown,

    8 please --

    9 JUDGE KARIBI-WHYTE: Do you think we need to go through this

    10 exercise? Do you think it is necessary? You may if you

    11 wish, but I do not think it explains more than has been

    12 explained before now.

    13 MS. RESIDOVIC: Your Honour, I am talking about the threads

    14 pointed to by the Prosecutor and I think that the

    15 Prosecutor had enough time to present these threads in

    16 the last three days. I am hoping that I will be able to

    17 present my arguments very concisely. I would only like

    18 to show these two hand-written documents, and I think

    19 that I can draw several conclusions and arguments.

    20 I will bear in mind your remark not to repeat things,

    21 but I would just like to make things more concise and

    22 clear. I think that this was the nature of your remark

    23 to me now, and I am grateful for it.

    24 May I continue, your Honour?


  92. 1 MS. RESIDOVIC: The document as we are showing now -- and

    2 the argument if a knife or a bullet could be found, and

    3 I do not think that this is either a knife or a bullet

    4 situation, I think that analysis and expertise would

    5 have to be made to authenticate who compiled this

    6 document. In connection with the documents that are in

    7 the handwriting, I know that my colleague Mr. Niemann

    8 knows the geography of the Balkans much better than

    9 I know the geography of Australia, but his remark when

    10 he tried to compare in this document the mention of

    11 Donje Selo, this is compared to the document in Dugo

    12 Selo, there was a barracks there. This barracks was in

    13 Dugo Selo, it is in Croatia, it is a different country,

    14 and Donje Selo is a geographic settlement that was in

    15 the Neretva river valley, part of the Konjic

    16 municipality.

    17 So we cannot accept those kinds of arguments as

    18 authentic and as credible. I am trying, your Honour, to

    19 only point to certain documents and to point out a

    20 larger general problem in the entire argumentation, but

    21 not to interconnect these documents with other documents

    22 and other facts. These are all facts in the transcript

    23 and in evidence.

    24 The next group of the documents relates to the

    25 contention of the Prosecutor that the authenticity and

  93. 1 reliability of these documents -- that my client

    2 Mr. Zejnil Delalic did recognise some of the documents

    3 presented. This is the order of 11th July, because

    4 there was a certain lengthy debate that surrounded this

    5 document, and it was not shown to my -- the document

    6 that my client was shown was not from INDA-BAU but from

    7 Munich. It was 1290. This was a fax that came from

    8 Munich and it points to the difficulties of

    9 communication between Sarajevo and the region where my

    10 client was.

    11 Another document from the group that was shown to

    12 my client have not been offered here to this Trial

    13 Chamber, and from the transcript of these questioning in

    14 Scheveningen, it shows that I have submitted personally

    15 this document on behalf of my client, so I am pointing

    16 to this document as -- all this points to the fact that

    17 all documents offered in this group have such limited

    18 value of authenticity that they cannot be offered in

    19 evidence.

    20 During the seizure of documents, over 12,770

    21 documents were seized. Mistakes were made during the

    22 seizure and transfer of documents. Some documents were

    23 photocopied and taken away without a court's approval,

    24 and there are testimonies by Moerbauer, d’Hooge and

    25 other Austrian policemen which were brought to testify

  94. 1 here, and the Prosecutor himself does not know the

    2 provenance of some of the documents that found their way

    3 into the files.

    4 I am pointing, your Honours, to the statement of

    5 the witness Panzer when he was cross-examined by my

    6 colleague with respect to the green file folder. The

    7 witness Panzer said:

    8 "My colleague Moerbauer and I made this green

    9 file folder. We put there different papers and there

    10 were a number of them."

    11 I remind you, your Honours, that in the

    12 Niederschrift from INDA-BAU, where allegedly all these

    13 documents were marked, it states that 12 file folders

    14 were taken there. There are no loose papers there and

    15 the testimony of Panzer before this Tribunal clearly

    16 points that there is no reliable way to test reliability

    17 of this evidence, of these documents which would have to

    18 have a certain amount of relevance.

    19 In conclusion, your Honours, I would like to point

    20 out some documents which have been tendered here and

    21 offered in evidence. The Prosecutor offers as a

    22 document that was already recognised by my client a

    23 booklet on the Green Berets, and also a letter which he

    24 does not know whether it was found in the Prosecution

    25 files in the original or not. He says that the

  95. 1 organisation was founded in 1994, and the document

    2 clearly gives the date of 15th January 1992. So it is

    3 clear that this document has no value, without being

    4 submitted to the kind of test that my colleagues have

    5 talked about.

    6 There is another document that my client has

    7 allegedly recognised. This is regarding his membership

    8 in the SDA, and in the interview in Scheveningen, my

    9 client is explaining the situation that the club in

    10 Vienna is no political party. Witness Panzer confirmed

    11 this, because he said that no foreign political parties

    12 can be active in Austria. A copy of this document,

    13 dated 18th March, shows again how unreliable this

    14 alleged "thread" that the Prosecutor talks about is,

    15 because according to the testimony of witness Panzer,

    16 who said that he immediately placed these documents

    17 under lock, Mr. Moerbauer who copied a few things and

    18 Mr. d’Hooge, they all said that nobody put any markings

    19 on it, and there is a date of 18th March on it.

    20 Is it possible that another document from Munich,

    21 where my client was arrested that day, and where it was

    22 possible that this membership card would be, could it be

    23 that this document could be placed -- of that date could

    24 be placed on a document then? So it is again very

    25 obvious that the reliability of this document is very

  96. 1 questionable.

    2 Then we have a copy of a questionnaire, who when

    3 asked by my colleague Eugene O'Sullivan was not able to

    4 be authenticated. It was not clear whether it was a

    5 copy which was attached to another document, and

    6 apparently there are a number of facts displayed there

    7 that are supposedly true. The Prosecutor had to have --

    8 the Prosecutor did not prove any facts from this

    9 document, whether that my client was decorated with the

    10 fleur-de-lis, whether he spoke Romanian, et cetera

    11 et cetera. So this document could have been compiled at

    12 any time.

    13 Your Honours, I wholly agree with the arguments

    14 presented by my colleagues, and I am sure that in the

    15 interests of right and justice you will come to the

    16 conclusion that the Prosecution was unable to prove the

    17 reliability and authenticity of these documents, that

    18 the Prosecution, for all these documents, has not proven

    19 their relevance and their probative value. All this,

    20 based on Rule 89 and Rule 95, I move that these

    21 documents as proposed by the Prosecutor not be admitted

    22 in evidence.

    23 JUDGE KARIBI-WHYTE: Thank you very much, Ms. Residovic.

    24 Mr. Moran, have you anything to say?

    25 MR. MORAN: Yes, your Honour. If it please the court,

  97. 1 I would like to divide the argument into basically four

    2 areas. The first thing is I would like to wax a little

    3 bit eloquent, like my friends Mr. Ackerman and Mr. Greaves

    4 did, about the evidence; then I would like to go to a

    5 little bit about the threads that the Prosecutor has

    6 talked about, and I will show you why the threads are

    7 not there; then there are three or four individual

    8 documents, I will discuss why they should not be

    9 admitted, at least against my client Mr. Delic, and

    10 finally I would like to have about two minutes of the

    11 court's time on a personal matter. With that I begin.

    12 The Prosecutor has talked about the court being

    13 made up of professional judges and that you can sort it

    14 through and throw out what you want, and has cited a

    15 couple of times the Krupp case, which is one of the

    16 post-World War II tribunals under control counsel law

    17 10. Given Judge McDonald's plurality decision in

    18 Erdemovic, I do not know how much precedential value any

    19 of those control counsel 10 cases have, but that is

    20 neither here nor there.

    21 My discussion is this: all of the post-World War

    22 II tribunals, Nuremberg, Tokyo, the control counsel 10

    23 cases and the Yomashada case operated under a set of

    24 rules of evidence that were imposed upon the judges by

    25 an outside source, and they were all fairly identical.

  98. 1 Basically, you could look at the rules -- and they are

    2 set out, the Yomashada rules are set out in a footnote

    3 in that case, the rules of evidence, and basically it

    4 said anything the Prosecutor wants to come in can come

    5 in. He could use sworn depositions, even though there

    6 was no right of cross-examination. The judges were

    7 required to admit as substantive evidence any report by

    8 a government agency of any government of the then

    9 United Nations, which refers to the allies in World War

    10 II.

    11 In fact, in the Nuremberg case, that evidence was

    12 used to admit a report from the Soviet government into

    13 the murder of 10,000 Polish officers which the Germans

    14 were charged with doing, and in fact a few months ago

    15 President Yeltsin said the Russians had done.

    16 Those rules of evidence, which by the way were

    17 imposed on the American zonal courts, control counsel 10

    18 courts, under Ordinance 7, were strongly criticised,

    19 I believe it was the hostages case, it may very well

    20 have been the List case, where the court essentially

    21 said, "you can admit this stuff, but you cannot make us

    22 give it any weight. It is our business how much weight

    23 we give it". I would suggest, especially in the light

    24 of Yomashada, which was not one of the greater days for

    25 the Supreme Court of the United States, that when the

  99. 1 Security Council set up this Tribunal, it adopted

    2 Article 15 of the Statute, which instead of imposing

    3 rules of evidence on the court from an outside source

    4 said that the judges should be imposing these rules of

    5 evidence.

    6 The court has adopted, what is it, 11 Rules of

    7 Evidence in total, that also say that you can look to

    8 the national rules of evidence, which brings me directly

    9 to document number 130, which purports to be --

    10 Prosecution Exhibit 130 purports to be a statement from

    11 Pavo Mucic in which he inculpates my client. I do not

    12 know whether that is a statement by Mr. Mucic or whether

    13 it is not a statement by Mr. Mucic. As to the general

    14 admissibility of it, I will leave that to Mr. Greaves and

    15 Mr. Olujic. What I would suggest is this: some weeks and

    16 months ago, I filed a memorandum of law with the court

    17 citing a case called R v Silcott, a British case, and

    18 several cases from the Supreme Court of the

    19 United States on the admissibility of co-defendants'

    20 statements against those defendants. It was done at the

    21 time that the custodial statements were admitted some

    22 months ago, and I think the holding of the court was at

    23 that point that a defendant's statement is admissible

    24 against that defendant and nobody else, and I would ask

    25 the court to continue that ruling as it applies to

  100. 1 Prosecution Exhibit 130.

    2 Moving along to Prosecution exhibit -- my notes

    3 have it in Prosecution Exhibit 126. This relates

    4 directly to a question Judge Jan asked I believe

    5 yesterday, or the day before, about the date of creation

    6 of Tactical Group 1. The Prosecution exhibit, I believe

    7 it is 118, which is the orders assigning Mr. Delalic to

    8 command that, show that he was replacing someone else,

    9 so we do not know when TG1 was created, but we know that

    10 it was probably before 11th July.

    11 However, Prosecution Exhibit 128 refers to an

    12 incident which occurred prior -- that is a report

    13 involving the murder of a man named Bubalo. All the

    14 acts occurred prior to July 11th, as laid out in that

    15 report, and gives various positions that people held at

    16 the time of the incident. Clearly when it says that

    17 Mr. Delalic was not -- was the commander of TG1 in June,

    18 we know that that is wrong, so these kinds of threads

    19 start falling apart when people start pulling on them,

    20 judge, these threads of admissibility the Prosecutor

    21 talks about.

    22 Prosecution Exhibit 129 seems to be some kind of

    23 an investigation report. This, I would submit, would be

    24 very similar to the report of that Soviet commission

    25 into the deaths of the Polish officers at the Nuremberg

  101. 1 case. It is totally lacking in reliability. We do not

    2 know who did this report, who they did it for; there are

    3 three people that signed it, surely one of them can be

    4 found in order to come down and testify to those facts.

    5 There is no way to cross-examine them.

    6 Prosecution Exhibit 131. That is the "Adventurer"

    7 letter. There are two problems I see with that letter,

    8 and I will suggest this to the court. I am not

    9 suggesting anything sinister on the part of anyone;

    10 however, every document that we have seen has what we

    11 call in America a BATES stamp. It is a serial number,

    12 an 8-digit number that appears on every document that

    13 the Prosecutor has handed us. The Bosnian original has

    14 a set of BATES numbers on Prosecution Exhibit 131, and

    15 when you go to the English translation, it lists down at

    16 the bottom -- in fact if the technical people could put

    17 it up, the English translation, at the very bottom it

    18 says, "end of page number" and lists a 7-digit number on

    19 the first page, and then on the second page of the

    20 English translation of Exhibit 131, it lists another

    21 7-digit number at the end of that page. Those numbers

    22 are different from the BATES stamp numbers on the

    23 original Bosnian document. I cannot explain it. I do

    24 not speak Bosnian, and I am just suggesting that the

    25 court ought to take a look at that, of the reliability

  102. 1 at least of the translation.

    2 Prosecution Exhibit 135, I suggest again the

    3 Prosecutor keeps talking about these threads of

    4 evidence. Prosecution 135 purports to be a SDA Party

    5 card issued in Vienna on May 4th 1992 to Mr. Delalic.

    6 Wherever Zejnil Delalic was on May 4th 1992, he was not

    7 in Vienna, he was in Bosnia, that is what all the

    8 evidence is.

    9 Prosecution Exhibit 143. We do not know what that

    10 is. It purports to be a press release of some kind, a

    11 press statement. We do not know who did it, we do not

    12 know where it came from, it is not on any kind of

    13 letterhead. Prosecution Exhibit 146, the "Hazim" memo.

    14 Again, I do not want to speak to the general

    15 admissibility of that, but I would object to it being

    16 admitted against my client on the theory that (i) we do

    17 not know who Hazim is, and although the Prosecutor

    18 asserts it is Hazim Delic, but (ii) there is no way of

    19 showing he knew of its existence until he arrived at

    20 The Hague as a prisoner. We do know for a good portion

    21 of the time after December 1992 Mr. Delic was either

    22 being incarcerated in a manhole at Celebici or in some

    23 other prison, including the Celebici prison and the

    24 Musala sports hall and would probably have no way of

    25 contacting anyone to learn about this.

  103. 1 With that, I would adopt the statements of my --

    2 the objections of my friends, and if the court would

    3 indulge me for about a minute or two, there is a --

    4 JUDGE KARIBI-WHYTE: Going outside the discussion?

    5 MR. MORAN: Yes, your Honour. On more of a personal matter.

    6 There is a very, very real possibility that I will not

    7 be here on November 24th, and I just did not want to

    8 leave, with a 50/50 chance I will not be back I would

    9 feel horrible if I did not say goodbye to the court. It

    10 is a personal and professional thing, having absolutely

    11 nothing to do with anyone who is a member in this room,

    12 but over the months we have been here, I have learned to

    13 admire the court and learned to like them, as we got to

    14 know each other better. I would say if I do not return,

    15 I would have felt very bad if I did not say goodbye.

    16 JUDGE KARIBI-WHYTE: You mean you are doubting whether you

    17 will come back?

    18 MR. MORAN: Your Honour, there is a 50/50 chance that I will

    19 not be returning, based on various personal and

    20 professional reasons.

    21 JUDGE KARIBI-WHYTE: At this stage I think that is a little

    22 unfortunate, if you have got to this stage.

    23 MR. MORAN: I understand that, your Honour.

    24 JUDGE KARIBI-WHYTE: We will take note of it, but I do not

    25 know. We will take note of that situation.

  104. 1 MR. MORAN: Again, in the chance that I do not return, I want

    2 to wish you all very well.

    3 JUDGE KARIBI-WHYTE: We do hope that you return, I think.

    4 We will need you to return.

    5 MR. MORAN: Your Honour, that makes me feel very good to hear

    6 you say that. Thank you very much.

    7 JUDGE KARIBI-WHYTE: Mr. Niemann, have you any few areas to

    8 touch on?

    9 MR. NIEMANN: If your Honours please, if I may first address

    10 the question of the general submissions that were made

    11 to you by Mr. Greaves and Mr. Ackerman, Mr. Ackerman urged

    12 your Honours to look at this whole question of

    13 documentary evidence and to provide this jurisdiction

    14 with an opinion which could have application and benefit

    15 for future cases that would come before the Chamber. We

    16 would urge your Honours to do that too, but we would

    17 urge your Honours to do it on the basis of the rules

    18 that your Honours have developed in the Rules of

    19 Procedure and Evidence, and having regard to the

    20 Statute.

    21 This jurisdiction, your Honours, is not the same

    22 as a national jurisdiction. It is not correct to say

    23 that you should have regard to the rules of evidence of

    24 a national jurisdiction when dealing with questions of

    25 admissibility. Your Honours are aware that in national

  105. 1 jurisdictions, in some national jurisdictions, they

    2 vary, difficulties have arisen in relation to documents,

    3 and primarily because you are dealing with documents as

    4 hearsay. There is no question, your Honours, that a

    5 document is hearsay. It is hearsay evidence. It is not

    6 correct to say that documents should not be admitted

    7 into evidence because it offends the right that may be

    8 given to an accused to cross-examine witnesses under

    9 Article 21 of the Statute. Of course the accused has a

    10 right to confront the witnesses that testify against

    11 him, and has the right to cross-examine, but it is a

    12 misconstruction, in my submission, to then say that that

    13 guarantee applies across the board to all facets of

    14 evidence, including documents themselves.

    15 Documents are, and have been always recognised as

    16 hearsay. They are an exception to the hearsay rule, and

    17 in fact, your Honours, in some common law jurisdictions

    18 the evolution of the process of dealing with documentary

    19 evidence has come about with an enormous amount of

    20 legislation which has attempted to ameliorate the old

    21 common law provisions that applied to them.

    22 Your Honours, the old common law principle of

    23 calling the author of the document, and that being the

    24 only basis upon which a document is admitted into

    25 evidence practically has no application in any

  106. 1 jurisdiction in the world any more. There are enormous

    2 legislative steps that have been taken since those days

    3 when that was the rule of the common law. There are

    4 considerable exceptions that go to tendering documents,

    5 such as business records provisions, such as computer

    6 records, such as the records of government departments,

    7 such as official publications, such as certificates

    8 issued, and all of these have been dealt with by way of

    9 legislation.

    10 Your Honours devised a set of rules to deal with

    11 the admissibility of evidence, and Rule 89 is in very

    12 simple terms. You were taken to it by Mr. Greaves, and

    13 he said to you that when looking at that Rule

    14 your Honours should -- either Mr. Greaves or

    15 Mr. Ackerman -- your Honours should devise a set of rules

    16 which properly reflect the necessity for you to

    17 determine a fair trial, and we would not quarrel with

    18 that for one minute. But in this jurisdiction there is

    19 also a balance, and a balance has been introduced

    20 because of the necessity to have regard to the interests

    21 of victims and witnesses and to have regard to the

    22 overall operation of this Tribunal in the jurisdiction

    23 in which it functions.

    24 Your Honours, the primary consideration is pursuit

    25 of the truth. If your Honours have any doubt about

  107. 1 documents, if your Honours are uncomfortable about any

    2 documents, you should not rely upon them. You should

    3 not accept them, you should reject them. You should do

    4 so if you feel that that would in any way encroach upon

    5 the necessity for you to ensure that a fair trial is had

    6 by the accused. But by the same time, the Statute and

    7 the Rules require you to have consideration to the

    8 broader interests as well, the interests of victims and

    9 witnesses.

    10 JUDGE JAN: Mr. Niemann, this raises another principle. Can

    11 a document be used against an accused when the purported

    12 author of that document is sitting in the court, but the

    13 accused cannot cross-examine him, cannot question him

    14 about the recitals he has made in that statement? The

    15 rule of fairness would not come in in such a situation?

    16 MR. NIEMANN: Is your Honour talking about the witness

    17 Ramic?

    18 JUDGE JAN: I am talking about the letter purporting to have

    19 been written by Mucic. Delalic is not in the position

    20 to cross-examine him, to question him about the contents

    21 of that document. Is it fair to Mr. Delalic?

    22 MR. NIEMANN: It falls into the same category as all

    23 documents, your Honour.

    24 THE INTERPRETER: Microphone please.

    25 JUDGE JAN: Against whom the recitals in the document are to

  108. 1 be used cannot question him. I am talking about the

    2 principle of fairness.

    3 MR. NIEMANN: Indeed, your Honours. In circumstances where

    4 you may, for example, have a conspiracy count to be

    5 considered, and where the parties get together, a group

    6 of co-offenders get together and conspire, and evidence

    7 of that conspiracy is presented in the form of

    8 documentary evidence, a similar situation may well apply

    9 there, that the document -- is it a document to be

    10 admitted against one party or admitted against a group?

    11 Your Honours may have to make that determination. You

    12 may have to do it on the basis of fairness; is it fair

    13 that it should apply that way? Your Honours, in our

    14 submission, there is no rule that says that your Honours

    15 cannot apply it. The principle that guides you all

    16 along is the interests of a fair trial, and it can be to

    17 do it. It is not necessarily unfair.

    18 As a question of principle, your Honours, what we

    19 urge you to do is to have regard to it, consider it and

    20 make the determination on that basis of a fair trial,

    21 and if your Honours believe that the evidence can be

    22 admissible against a co-accused in these circumstances

    23 and still represent a fair trial, then it should be

    24 applied for that purpose, but your Honours, it is not

    25 correct to say that simply because cross-examination

  109. 1 cannot happen in relation to a document that that is the

    2 end of the matter and that a fair trial cannot be had.

    3 That is not the case in our submission at all.

    4 Your Honours could have numerous documents against

    5 people who are dead, people who cannot be brought before

    6 the Chamber.

    7 THE INTERPRETER: Microphone please.

    8 JUDGE JAN: The accused is prevented by law from asking

    9 questions from him.

    10 MR. NIEMANN: It may be frustrating.

    11 JUDGE JAN: I am talking about fairness.

    12 MR. NIEMANN: It may be frustrating because the persons sits

    13 there and cannot be examined, but it is no different.

    14 JUDGE JAN: I am talking about fairness, not any other

    15 thing.

    16 MR. NIEMANN: It is no different to a document that is

    17 admitted against somebody --

    18 JUDGE JAN: Because you see we have to ensure a fair trial,

    19 and I was just looking at it from that, because maybe it

    20 raises the principle.

    21 MR. NIEMANN: Your Honours, the other issue that has been

    22 raised in the course of the submissions is the reference

    23 to the fact that the documents need to be authenticated

    24 or proved beyond a reasonable doubt, and numerous times

    25 I have questioned this. A document, and we maintain

  110. 1 that some of these documents fall into that category,

    2 are circumstantial evidence. It is the mass of which

    3 must be put together to produce the end result.

    4 Your Honours, circumstantial evidence is not, as

    5 some people might suggest it is, a link in a chain, so

    6 that if one of those links were to be taken, the chain

    7 would fall, not at all. Circumstantial evidence is like

    8 a thread in a rope. It can be insignificant in terms of

    9 its strength, but when put together with all the other

    10 threads, it receives its strength and may be used. I am

    11 not being original when I give this illustration,

    12 because it is an illustration that was given by an

    13 eminent jurist from the United Kingdom, Baron Pollock,

    14 but your Honours, it is a very appropriate, in my

    15 submission, analogy.

    16 When your Honours look at each one of these

    17 documents and each one of the submissions made,

    18 your Honours do not do it on the basis, "is this

    19 document the document that is going to determine the

    20 case on its own, it stands alone", the Prosecution

    21 tenders one document in a case, sits down and that is

    22 the end of the matter, because it does that exercise.

    23 That is not what we are doing or submitting. We are

    24 saying each must be considered.

    25 There is a process involved; the process is one of

  111. 1 sifting and weighing, and your Honours may well, at the

    2 end of the day, reject some of the documents if you feel

    3 that either they are not of sufficient weight, or they

    4 do not have that reliability.

    5 JUDGE KARIBI-WHYTE: Actually, I think the difficulty

    6 perhaps arises where it is the contents of the document

    7 themselves that is in issue, not the surrounding

    8 circumstances that a document has been produced. Those

    9 can give credible evidence of circumstantial evidence,

    10 that it could be done by such a person, but the truth of

    11 whether it was done is a different matter.

    12 MR. NIEMANN: Your Honours may well want reassurance when

    13 there are things in the documents that point to those

    14 conclusions. You may well want reassurance from other

    15 pieces of evidence. It may well be the case -- if

    16 your Honours were to rely on a document, one particular

    17 document as conclusive to a particular element of the

    18 offence, we do not quarrel with the fact that that

    19 document -- you would have to be satisfied that that

    20 document proves the issue beyond a reasonable doubt. We

    21 do not for one minute quarrel with that issue.

    22 So, your Honours, to address the general

    23 submission that is put to you, and having regard to the

    24 fact that the Rules of Evidence are what they are, it is

    25 our submission that your Honours have that very

  112. 1 difficult task, to perform the function of judge and

    2 jury. In most jury jurisdictions, you have a situation

    3 where the trial judge receives the evidence, receives

    4 all of the evidence in the voir dire, determines the

    5 issue of admissibility and then proceeds for the matter

    6 to go to the jury. Your Honours must proceed to do both

    7 of those functions, and I am first to say that I think

    8 it is a difficult and complex function, and I sincerely

    9 hope that from both sides of the courtroom we have

    10 endeavoured to assist your Honours in the performance of

    11 that function, and it ultimately falls to your Honours

    12 to do so.

    13 Your Honours, with respect to the Nuremberg

    14 principles, I do not think it is fair to describe it as

    15 "any document that the Prosecution wants to be admitted

    16 gets admitted". It was not as broad as that at all. In

    17 fact, from my memory of the Nuremberg principles which

    18 I took your Honours to when I made that long submission

    19 about the admissibility of evidence, there was a

    20 remarkable similarity between the Rules of Evidence that

    21 your Honours have devised, in particular under Rule 89,

    22 and what then applied at Nuremberg. Principle

    23 objective, your Honours, is to seek out and obtain the

    24 truth. There are enough limitations upon your Honours

    25 in doing that in terms of the acquisition of physical

  113. 1 evidence and the circumstances in any event.

    2 The creation of national rules of evidence

    3 relating to hearsay and so forth which would preclude

    4 your Honours from having access to this evidence cannot

    5 assist you in the task at the end of the day and in my

    6 submission, your Honours, has led you, as the judges in

    7 plenary, to devise Rules of Evidence which would best

    8 enable you to arrive at the truth of the matter. In our

    9 submission, they are Rule 89 and the other limited Rules

    10 of Evidence that are provided for in the rules.

    11 Your Honours, if you are to deal with this

    12 difficult issue, it is how those rules are best applied

    13 when weighing the necessity to ensure a fair trial, but

    14 so as to ensure that material comes before you for

    15 consideration, which is the hard task that you have to

    16 perform. It is not achieved, in our submission,

    17 your Honours, by simply picking up and applying the

    18 rules of evidence that relate to national jurisdictions,

    19 and which vary from jurisdiction to jurisdiction where

    20 you have no benefit of a legislature to guide you in

    21 what rules of evidence should be applied.

    22 Your Honours have the difficult task, and it is a

    23 difficult task, of having a great deal more evidence to

    24 come before you than might come before a jury in a jury

    25 trial. It is a difficult task, but in our submission

  114. 1 the rules are specifically designed to enable you to get

    2 at the truth and by getting at the truth, in our

    3 submission, you should not be hampered or prevented from

    4 seeing the evidence as it is.

    5 I do not wish to address your Honours specifically

    6 on each document, I have done that, but I am anxious to

    7 encourage your Honours to look at the rules, having

    8 regard to the way they are drafted and the way they

    9 should, in our submission, be applied.

    10 MR. ACKERMAN: Your Honour, an issue came up just now as

    11 a result of Judge Jan's question regarding

    12 co-defendants' statements, and then Mr. Niemann threw in

    13 the issue of conspiracy. May I have two minutes to

    14 address that?

    15 JUDGE KARIBI-WHYTE: You may, but I do not think it is

    16 really necessary. But you can do so.

    17 MR. ACKERMAN: I can do it, I think, very quickly. The

    18 jurisdiction that I am from, federal prosecutors

    19 primarily are in love with conspiracy, so I have tried a

    20 number of conspiracy cases. Just as a general

    21 proposition, statements of co-defendants are not

    22 admissible against other defendants. That is frequently

    23 dealt with by severance, or the statement is not

    24 admitted in a situation where a jury or a judge could

    25 even begin to use it against another defendant.

  115. 1 The exception to that is in a conspiracy case,

    2 where the defendants were seen during a certain period

    3 of time to have been acting together toward a common

    4 purpose, and the theory is that statements made by them

    5 during the course of that conspiracy and in furtherance

    6 of it are common statements that are attributable to all

    7 of them, and so those kind of statements would be

    8 admissible against each other.

    9 That situation ends when the conspiracy ends, and

    10 what frequently happens, when accusations are made

    11 against individuals who were alleged to have been acting

    12 together toward that common purpose. Once the

    13 conspiracy is over, frequently the motive is to

    14 exculpate themselves and inculpate the others, so any

    15 statement made following, like the Mucic statement in

    16 this case, much later, long after Celebici was closed,

    17 cannot have any reliability, because it can be seen as a

    18 statement designed to exculpate some and inculpate

    19 others and not something that was furthering any

    20 conspiracy that was going on, so that is the way --

    21 I can only tell you how American courts view that.

    22 I have tried, I do not know, 100 conspiracy cases. The

    23 Mucic statement certainly would not be admissible

    24 against any other defendant in the United States, and in

    25 its current condition not even admissible against Mucic,

  116. 1 because of the lack of authenticity.

    2 JUDGE KARIBI-WHYTE: Thank you very much. I think we will

    3 have to conclude with one other matter which has been

    4 pending. I think that is the admissibility of

    5 Exhibit 155. We deferred the ruling on the request for

    6 the admissibility. The letter allegedly written by

    7 Mucic and for an order compelling him to produce a

    8 sample of his handwriting. We just want to give an oral

    9 ruling, the full decision will be published soon.

    10 The Trial Chamber has considered the two requests

    11 made by the Prosecution in connection with Exhibit 155.

    12 It is clear that the request called into consideration

    13 crucial issues in regard to the construction of various

    14 provisions of the Statute, and Rules of the

    15 International Tribunal, particularly those relating to

    16 the nature and ambit of the right of an accused person

    17 before the Tribunal, the standards for admissibility of

    18 evidence, and the powers of a Trial Chamber seized of a

    19 trial.

    20 The Trial Chamber has decided to grant the

    21 Prosecution's first request, namely that Exhibit 155

    22 should be admitted in evidence. In the opinion of the

    23 Trial Chamber, the provisions under admissibility of

    24 evidence contained in Section 3 of the Rules are quite

    25 clear and unambiguous. The test for admissibility, in

  117. 1 accordance with sub-rule 89C is that evidence is

    2 relevant and should have probative value.

    3 The Trial Chamber accepts that reliability is an

    4 inherent and implicit component of each of these

    5 elements of admissibility. It is indeed the invisible

    6 golden thread that runs through both components.

    7 However, it is neither necessary nor desirable to regard

    8 it as a separate milestone on the route to admissibility

    9 of evidence before the Trial Chamber.

    10 The arguments of both parties, admittedly to

    11 different ends, on the importance and need for

    12 reliability before evidence may be admitted are

    13 convincing and the Trial Chamber's written opinion

    14 expatiates on its reasons for coming to this conclusion.

    15 The letter on its own has sufficient relevance and

    16 probative value for admissibility. However, the claim

    17 by the Prosecution that the contents of the letter tend

    18 to prove certain elements of the indictment, because of

    19 its allegations, then the letter was written by Mucic,

    20 have not been sufficiently proven. The Prosecution has

    21 not established a sufficient nexus between its contents

    22 and Mucic. It is therefore admitted only to the extent

    23 to which evidence of its existence has been laid before

    24 the Trial Chamber. That is as a letter being of

    25 relevance to these proceedings, exhibiting probative

  118. 1 value, and written to Witness B by an unknown third

    2 person.

    3 The question of the content of this letter,

    4 governed by proof of signature, is a matter that

    5 attaches to the weight to be given to the letter during

    6 the deliberations of the Trial Chamber. The Trial

    7 Chamber is unable to grant the Prosecution's request for

    8 an order compelling the production of a handwriting

    9 sample from Mucic. The Trial Chamber is not satisfied

    10 that a handwriting sample per se can be regarded as

    11 forming material proof against an accused person.

    12 It is of the opinion that where the material

    13 elements add something to the elements incriminating an

    14 accused person, a sample of his handwriting -- to compel

    15 him to supply the sample which is the missing element

    16 would infringe the provisions of Article 21(4)G of the

    17 statute. The Trial Chamber rejects the Prosecution's

    18 contention that the handwriting will serve no purpose

    19 other than for identification.

    20 The reason for requiring the handwriting sample is

    21 clearly as admitted by the Prosecution; to ascertain

    22 conclusively the authorship of the letter. If

    23 authenticated, it will act as sufficient admission of

    24 its content in respect of counts on the indictment

    25 against the author. The obvious implication is that the

  119. 1 accused will be compelled by an order of the Trial

    2 Chamber to assist the Prosecution in its investigation,

    3 and probably provide evidence to incriminate himself.

    4 The fact that a handwriting sample per se is trial

    5 evidence is not the issue. If the handwriting sample,

    6 taken together with other evidence, will constitute

    7 material evidence to prove the charge against the

    8 accused, then the order of the Trial Chamber would have

    9 compelled the production of self-incriminating

    10 evidence. There is no legal or moral duty on the

    11 accused to fill a vacuum created by an investigative gap

    12 of the Prosecution.

    13 Self-preservation is the first principle of life.

    14 It is an elementary principle of proof that he who

    15 alleges must prove the subject matter of his

    16 allegation. The Prosecution having alleged that Mucic

    17 authored Exhibit 155, has to discharge the burden of

    18 proof on it by the Defence.

    19 This is the ruling of the Trial Chamber. A

    20 reasoned written decision will follow shortly.

    21 Now we have a few difficulties, because we are not

    22 likely to sit until Monday, 1st December, because of

    23 difficulties in the position of the court itself,

    24 because other Trial Chambers will be taking over,

    25 sitting here. But when we do sit, we will sit until

  120. 1 Friday, 5th December.

    2 During this week, we hope we will be able to have

    3 the two expert witnesses to testify, and hopefully

    4 Professor Economides is to be cross-examined and Dr. Gow

    5 is to testify in chief. We are hoping that perhaps we

    6 will conclude all those proceedings within the period.

    7 After that period, I think we are not likely to

    8 recommence until Monday, 12th January. The Trial

    9 Chamber will appeal to the Defence to start its

    10 preparations for presentation of its case, so that we

    11 will not have an undue delay after the conclusion of the

    12 case of the Prosecution. They should be able to get

    13 their case together in general so we can proceed.

    14 I think to a large extent we still need Mr. Niemann to

    15 show us when he is closing his case for the Prosecution.

    16 MR. NIEMANN: It is our expectation, your Honour, that we

    17 will finish on that week, the week of the 1st.

    18 JUDGE KARIBI-WHYTE: The first week in December. We expect

    19 you to be able to say something. It is just to give

    20 notice to the Defence so that they know they have to

    21 organise themselves, carry on immediately. We return in

    22 January. I think this is all we have for the day.

    23 (5.40 pm)

    24 (Hearing adjourned until 10.00 am

    25 on Monday, 1st December 1997)