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(1)Wednesday, 11 April 2001
[Exhibit Motion Hearing]
[Open session]

--- Upon commencing at 4.02 p.m.
(5) [The accused entered court]

JUDGE RODRIGUES: [Int.] Good afternoon, ladies and gentlemen. Good afternoon to the technical booth, the interpreters. I hear the same voices. Good afternoon also to the registry staff, the counsel for the Prosecution and for the Defence. Good afternoon, General (10)Krstic. We are having this hearing to discuss and analyse certain exhibits which are still the object of discussion between us and require a ruling by the Chamber. To start the ball rolling, I give the floor to Mr. Harmon, and we will see what Mr. Visnjic has to contribute. (15)You have the floor, Mr. Harmon.

MR. HARMON: Good afternoon, Mr. President. Good afternoon Your Honours. Good afternoon, Mr. Visnjic. Mr. President, I think the first thing we need to do to put these matters at issue is for the Prosecutor to introduce or move to introduce (20)the exhibits which I will now do by number, and it will take me just a matter of about five minutes to read each of the exhibits. And for Your Honours' and counsel's ability to follow what I'm doing, I'm going to be referring to a document that has been provided to Your Honours and to counsel and a document that has been prepared by the Office of the (25)Prosecutor.

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(1)So if I could just start by moving the following exhibits into evidence: Prosecutor's Exhibit 747, which we are offering under seal; 748, we are moving that exhibit into evidence under seal; 786/a and b, with 786 being under seal; 787/a and b; 788/a and b, 789; 789/a and b; (5)835; 835/a and b; 859. Then moving to page 3, Prosecutor's Exhibit 842/a and b and Prosecutor's Exhibit 843 under seal. Moving to the next page of the document, page 4, Prosecutor's Exhibit 844 under seal, 850/a and b, 851/a and b, 852/a and b, 853/a and (10)b, 854, 854/a and b, 855/a and b, 856/a and b, 857/a and b, 860, 860/a. Then 861/1 which we are offering under seal. 889. Prosecutor's Exhibit 845, 846, 862/a, 862/b. 864, which we are offering under seal. 865/a, which we are offering under seal. 865/b under seal, 866/a under seal, 866/b under seal, 867/a under seal, 867/b (15)under seal, 868/a under seal, 868/b under seal, 869. 870/a under seal, 870/b under seal, 871/a under seal, 871/a under seal, 872/a under seal, 873/a under seal, 874. 875/a under seal, 875/b under seal. 877/a and b, 878/a and b, 879, 883 and 883/b. 885 under seal, 885/a under seal, 885/b under seal, 886 under seal. 886/a under seal, 886/b under seal, 887/a (20)under seal, 887/b under seal, 887/c under seal. The remaining exhibits, Mr. President, have been admitted pursuant to a ruling, an oral ruling from the bench by the Trial Chamber but have never been tendered as physical copies of the exhibits, and we would now tender those exhibits. They are Prosecutor's 893/a, which is a report (25)from Jose Baraybar, which is 893/a and b. 894/a and b which is a report

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(1)prepared by Dr. John Clark. 895/a and b, which is a report prepared by Professor Richard Wright. 896/a and b, a report prepared by Fredy Peccerelli and 897/a and b, a report prepared by Dean Manning. Those are the exhibits that we would now tender into evidence, and (5)the latter exhibits which have already been admitted, we are going to be presenting those to Your Honours in physical form for the record. Thank you.

JUDGE RODRIGUES: [Int.] Mr. Visnjic?

MR. VISNJIC: [Int.] Your Honours, the Defence has (10)several times objected to the introduction of these exhibits for various reasons. However, I would like to say that on this list, we don't have the Exhibit 889, which was also tendered. But it's not there in the final list from the Prosecution. So before we get into the details regarding these exhibits, it would perhaps be good to clear up the situation (15)regarding Exhibit 889. It's a video which was tendered during the testimony of Witness EE.

JUDGE RODRIGUES: [Int.] Mr. Visnjic, I see it on page 6, I think, of the Prosecutor's document, 889. It comes under category 4.

MR. VISNJIC: [Int.] Yes, that's right, Your Honours, but (20)I think that Mr. Harmon did not read that into the transcript, and that's why I'm mentioning it.

JUDGE RODRIGUES: [Int.] Perhaps. Mr. Harmon?

MR. HARMON: Let me please thank you, Mr. Visnjic, for bringing that to my attention. If I haven't read it into the record, I intended to (25)do so, and therefore we would move to introduce into evidence Prosecutor's

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(1)861/1 under seal and Prosecutor's Exhibit 889.

JUDGE RODRIGUES: [Int.] So Mr. Visnjic, you may continue now.

MR. VISNJIC: [Int.] Thank you, Mr. President. (5)Mr. President, the Defence objects, as I said, to the introduction of these exhibits for various reasons. This group of exhibits, we have separated it according to the type of our objection so we have classified them into several categories. What we have done has been submitted in written form to the (10)Chamber on the 11th of April of 2000 and it has also been submitted as a special diagram, a chart, so I don't know -- in view of the expediency of the proceedings, I don't know if I should read out the exhibits that we were discussing in that chart, or would the Prosecution perhaps agree with the list from the motion of 11th of April, which lists the Defence's (15)objections to the exhibits.

JUDGE RODRIGUES: [Int.] The question, I see here, Mr. Visnjic, is the list that you sent to us has not been marked, so I don't know whether it needs to be marked or not. In any event, I think we can apply the same methodology as Mr. Harmon did for the record. He is (20)requesting the admission. You object. And then we will discuss it. Mr. Harmon, do you have a different suggestion?

MR. HARMON: No, Mr. President, I do not.

JUDGE RODRIGUES: [Int.] In that case, please proceed, Mr. Visnjic.

(25) MR. VISNJIC: [Int.] Thank you, Mr. President. The

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(1)Defence objects to the Exhibits 747, 748, 786/a, 786/b, 787/a, 787/b, 789, 789/a, 789/b, 835, 835/a, 835/b. 859, 864, 864/a, 865/b, 866/a, 866/b, 867/a, 867/b, 868/a, 868/b, 869, 870/a, 870/b, 871/a, 871/b, 872/a, 872/b, 873/a, 874, 875/a, 875/b. Also 844, 845, 846, 850/a, 850/b, 851/a, 851/b, (5)852/a, 852/b, 853/a, 853/b, 854, 854/a, 854/b, 855/a, 855/b, 856/a, 856/b, 857/a, 857/b, 860, 860/b, 862/a, 862/b, then 855 -- excuse me, 885, 885/a, 885/b, 886, 886/a, 886/b, 887/a, 887/b, and 887/c. Then 861/1 and 889. Then 877/a, 877/b, 878/a, 878/b, and 879, also Exhibits 883 and 883/b. I think that this is everything, Mr. President.

(10) JUDGE RODRIGUES: [Int.] Mr. Visnjic, what about exhibits marked as 893 and the following ones until 897? That is pages 12 and 13 of the Prosecution document. You didn't mention them.

MR. VISNJIC: [Int.] Mr. President, these exhibits are subject to a response by the Defence, a pending response from the Defence (15)since, in our -- we don't object to tendering these exhibits but we reserve our right to respond to them in accordance to the ruling by the Chamber.

JUDGE RODRIGUES: [Int.] Yes. Mr. Harmon, do you wish to take the floor? I don't know. Mr. Visnjic has made his objections but he (20)hasn't given us the reasons. They are probably known. I don't know how you would like to have this debate. Mr. Visnjic, you object to all these exhibits but perhaps we have certain categories of documents here that are the subject of a particular topic. And I don't know, maybe the methodology to apply would be to take one group of exhibits related to a (25)particular topic because I think last time Mr. Harmon said that he wished

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(1)to have entered in the record the reasons. Maybe some new reasons, some new grounds. Perhaps you could respond. And after that, we'll see what Mr. Harmon will say. What are the reasons, the grounds for your objections?

(5) MR. VISNJIC: [Int.] Mr. President, the grounds for our objections have been presented several times already during the proceedings for each individual exhibit, and they're also to be found in the document which we have submitted to the Trial Chamber today. As far as I understood, Mr. Harmon wanted an opportunity to (10)respond to those objections and those grounds. I am quite ready to present them again, but as they're contained in three written submissions, coupled with what we said at the oral hearings, this may take a lot of time. So perhaps it would be best to hear the response of Mr. Harmon, and then perhaps I can respond again.

(15) JUDGE RODRIGUES: [Int.] So we have a general objection on your part, and Mr. Harmon is aware of the reasons for each of the exhibits. And regarding particular topics, I think that you have something to add, so please respond. You have the floor to respond.

MR. HARMON: I agree with Mr. Visnjic, Mr. President, that many of (20)these issues have been the subject of briefing, so there's no reason to reiterate for Your Honours the positions taken by the Prosecutor's Office or the Defence. I would like to add, however, add some clarifications. And the first clarification I'd like to add is that the issue found in our (25)category number 1 which relate to the, what I'll refer to as the "kill

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(1)them all" conversations, I merely point out that there are two tapes at issue. One is the tape that is known as Q2, and for the record, that tape was received by the Office of the Prosecutor prior to the Prosecutor's closing her case in chief. The second conversation, which was the more (5)audible conversation of the voice of General Krstic, was not received by the Office of the Prosecutor until after we had concluded our case in chief. So I'd just like to insert that into the record. That is also found in our written reply to the Defence objection to the admission of those tapes and intercepts in footnote 6 of our reply. (10)Now, in respect of the second category, I'd just like to -- in our second category, which consists of Prosecutor's Exhibit 842/a and b and 843, these exhibits are transcripts from notebook 232. Now, the substance of that conversation has been admitted on three separate occasions in the course of these proceedings. It is OTP Exhibit 364/volume 1/13 July/tab (15)16, and then OTP Exhibit 404/tab 341, and finally, OTP Exhibit 529. The notebook from which these conversations, 842 and 843 and the notebook itself, those were recovered by the Office of the Prosecutor on the 13th of December, 2000, after the Prosecutor had concluded her case in chief. Now, if we turn to the third category identified by the (20)Prosecutor, the exhibits are identified on pages 4, 5 -- 4 and 5, it is our position that first of all, these conversations are conversations that directly rebut the testimony of General Krstic. And I will refer Your Honours, and there is a reference to a transcript page in there, but specifically I'll read the portion of the testimony given by General (25)Krstic. I have to go into private session for this for just a minute

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(1)because this is a private session testimony.

JUDGE RODRIGUES: [Int.] Yes, let us go into private session.
[Private session]
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(1) [Open session]

JUDGE RODRIGUES: [Int.] We are in public session. Continue, please.

MR. HARMON: Now, the exhibits that are identified on pages 4 and (5)5 of our submission, Mr. President, are conversations that either, first of all, directly rebut the testimony of General Krstic, or, put those conversations into context. In our submission to Your Honours on page 4, I need to clarify the second paragraph of the text that is above, directly above the numbered (10)exhibits, and I will tell you why. When I read this shortly before coming to court, it was somewhat confusing to me, and I need to clarify for the record, because this set of documents deals with Prosecutor's Exhibit 860, which is a -- found on page 5, and which is a printout version of the Krstic/Mandzuka conversation on the 2nd of August. (15)Now, the printout version of this conversation was received by the Office of the Prosecutor on the 13th of December, 2000. The substance of that conversation was identified -- I received it in B/C/S. It was read to me the day before Witness FF testified, and I -- when I realised what was said in that conversation, then I identified it as being a (20)conversation that had some evidentiary value. Then we looked at notebook 103. Now, notebook 103 isn't the printout conversation; it's their hand-written, recorded intercept. That was received by the Office of the Prosecutor in April of 1998, and we then found the similar conversation that was contained in the printout in that (25)notebook. So that is the clarification I'd like to bring to this

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(1)particular paragraph. It sets the timing, which timing seems to be everything in this debate, it sets the timing correct. Now, Mr. President, let me refer to these conversations in this category, which is our category 3, and refer Your Honours to the motion (5)filed by the Defence on the 11th of April, Defence objections to rebuttal rejoinder exhibits. And let me refer Your Honours to paragraph 12 of that filing in which the Defence contends that, "We," the Prosecutor, "was well aware of Krstic's position concerning Popovic from its two-day interview of him in February 2000 and cannot say the Defence evidence was not (10)reasonably anticipated." During that interview, General Krstic never said he didn't talk to Popovic on August the 2nd. The first time we heard that General Krstic hadn't talked to Lieutenant Colonel Popovic was when he testified under oath to that effect, and therefore it's our position, Mr. President and (15)Your Honours, that these exhibits that are found in our category 3 are proper exhibits to rebut the false testimony of General Krstic. Now, the Defence raises in its same pleading on paragraph 14 that we should have made a motion to reopen the case under the rubric of fresh evidence, and they're referring specifically to this conversation of (20)Krstic/Mandzuka. Again, Mr. President, this conversation and the significance of this conversation did not become apparent to the Office of the Prosecutor until General Krstic testified falsely about his conversations with Lieutenant Colonel Popovic, or his lack of conversations with him, on the (25)2nd of August. In that context, the Office of the Prosecutor then became

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(1)aware of this Mandzuka conversation and the other Popovic/Krstic conversations from the 2nd of August. Now, if we turn, Mr. President, to category 4 of our submission, that is, documents that relate to Witness II, I will need to go into (5)private session once again.

JUDGE RODRIGUES: [Int.] Yes, let us go into private session.

MR. HARMON: For the record, it's perfectly clear on the timing --

JUDGE RODRIGUES: [Int.] Yes, we are in private session. (10)Please proceed.
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[Open session]

JUDGE RODRIGUES: [Int.] We are in public session.

MR. HARMON: The exhibits that are in our category 4.

(5) JUDGE RODRIGUES: [Int.] Excuse me, Mr. Harmon, just to say that this part of the private session was not marked on the transcript. It is page 13, line 6. Please continue, though.

MR. HARMON: Further to the two exhibits that the Prosecutor seeks (10)to admit under our category 4, 861/1 and 889, I draw your attentions -- Your Honours' attention to the fact that these are clips, video clips, taken from previously admitted exhibits, Office of the Prosecutor Exhibit 58, 49 and 145 bis. There is nothing new or original in this material. Now, category 5. In category 5, which are exhibits that were (15)introduced by my colleague, or at least tendered by my colleague, Magda Karagiannakis, the explanation that's in our submission on page 7 is self-explanatory. Now, if I could turn next to the next category, the next category are exhibits that were tendered through Mr. Butler in our surrebuttal (20)case. This issue also, Mr. President, has been fully briefed by the Office of the Prosecutor and doesn't, I do not believe, bear additional comment.

JUDGE WALD: I have one question on that, just on that category. Previously, when we were talking about the Popovic conversations, you (25)referred to the Defence submission and said that you did not agree with

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(1)it, that this should have been anticipated by reading the earlier interview of General Krstic. You told us you didn't agree with that. That's not my point. My point is here, do you happen to know whether or not - and Mr. Visnjic, I invite you to respond to the same question - (5)whether or not in that earlier interview with General Krstic, there was anything in that interview that related to the issue involved here, which as you know, was the answer to the question of whether General Krstic knew that prisoners were being taken between the 12th and the 17th. The Defence paper does not say that, but I just wondered whether you or (10)Mr. Visnjic knows that.

MR. HARMON: I don't, I'm afraid.

JUDGE WALD: Okay.

MR. HARMON: Then -- now, if we turn to the next category, which is category 7, Prosecutor's exhibits under that category are 883 and (15)883/b. And under that category, what is significant to be inserted into the record is 883 was first acquired by the Office of the Prosecutor in 1998, but a translated version of that didn't come to the attention of Mr. Butler until January of 2001. I think it's important in this context to understand that the Office of the Prosecutor has literally millions and (20)millions of documents. Unfortunately, we don't get all of those documents in a translated form in an usable form. There is a process, a slow process, by which documents are translated. I don't know the details and the circumstances of why or when this document was submitted for translation. I just know that the translated version came to the (25)attention of Mr. Butler in January of 2001. So that is the date, the

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(1)marker, when we as prosecutors had actual knowledge of it and its contents.

JUDGE RODRIGUES: [Int.] Mr. Harmon, a question. Isn't it true that it is not just any document. It is really a document that (5)comes above all the others regarding the whole Prosecution case?

MR. HARMON: I think -- I'm not in a position to weigh the weight of each of those documents.

JUDGE RODRIGUES: [Int.] I apologise for making that comment.

(10) MR. HARMON: I know that unfortunately the reality is there are sometimes documents that come to us at various stages, depending on the ability to be submitted by the Office of the Prosecutor for translation and the date when they are actually received. I'm not sure who submitted this document to the translation section. All I know is that we became (15)aware of it for the first time -- I'm corrected my by my colleague, Mr. McCloskey, it came to the attention of Mr. Butler in January. It was actually translated in December of 2000 but it came to Mr. Butler's attention in 2001. Now, if I turn to category 8, in our submission, the -- and I read (20)the defence submission, starting at paragraph 15, the suggestion is -- at least I read in paragraph 15, is that the Prosecutor clearly should have presented this evidence in her case in chief. Mr. President and Your Honours, the Prosecutor on the issue of when General Krstic became the Commander, the Prosecutor's office submitted copious quantities of (25)evidence relating to that particular issue. We presented intercepts. We

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(1)presented the orders signed by General Krstic dated the 13th of July, 1995, where he signed it as Commander. We submitted an order signed by General Krstic as the Commander dated the 17th of July, 1995. We submitted, I believe, interim combat reports addressed to the Commander, (5)General Krstic. We submitted the order signed by President Karadzic appointing General Krstic as the Commander. And other forms of evidence that identify clearly the time when General Krstic became the Commander of the Drina Corps. The issue of when we presented this particular witness -- I have (10)said it in passing, I will say it again. This witness was hostile in fact to the Office of the Prosecutor and hostile in the traditional sense, in the legal meaning of a hostile witness, and we declined to present him in our case in chief. It was after other evidence came to our attention, which I will not mention in public session but we have touched upon (15)previously in private session, that the Prosecutor's office then made a decision to issue -- request the Trial Chamber to issue a summons or subpoena to Mr. Golic to appear, and we were fully prepared and were hopeful, as a matter of fact, that he would appear. He did not. But that evidence that we have sought in respect of our category 8, we believe, is (20)relevant evidence. We believe it is adequate rebuttal evidence as well to the testimony of General Krstic, who has said that he was not the Commander until a later date in time. And we believe it is admissible evidence under the ruling that was issued by the Appeals Chamber, a decision on the appeal regarding the statement of a deceased witness that (25)was issued on the 21st of July, 2000.

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(1)Those are my remarks, Mr. President, and Your Honours. Thank you.

JUDGE RODRIGUES: [Int.] Mr. Visnjic, perhaps there is some new information that you wish to respond to, and more specifically, (5)to this remark, that there are certain exhibits, specifically Exhibit 861 and 889, which are abstracts from exhibits that have already been admitted into evidence. So we are awaiting your contribution and your comments.

MR. VISNJIC: [Int.] Mr. President, perhaps it would be better to start with your question right away. I might be a little bit (10)confusing because the Prosecutor has a different categorisation from me and I will try to respond in the same order that he talked in. Regarding Exhibit 861/1 and 889, we would like, Mr. President, to add the following: We objected. It's true that these two exhibits are parts of earlier admitted exhibits, and the Defence regarding the (15)authenticity and the other elements does not have any objections to these two exhibits. However, these two exhibits are being tendered by the Prosecutor through the testimony of a witness to whose testimony we have objected as a whole, as evidence brought before this Court. The reasons why we did this are as follows: The Prosecutor has explained to the Trial (20)Chamber that the Prosecution, since July, 2000, at least that's how I understood this, this part of his statement, so the Prosecution entered into the procedure of taking statements from witnesses from July 2000 -- from this witness. What I would like to say, Mr. President, is that the Prosecution (25)took the notebook, the phone book, which contained information about this

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(1)witness, in December, 1998, so it was in their possession since then. The facts that this witness testified about relate mainly to the statement that General Krstic gave during his interview on the 18th and 19th of February, and the statement provided by a witness who was questioned by (5)Mr. Kruszewski. So all of this happened at least several months before July 2000. So in this sense, I believe that the Trial Chamber will appreciate a certain dynamic in the conduct of the Prosecution regarding their own exhibits. Second, Mr. President, regarding also the testimony of this same (10)witness is the fact that on the one hand, we can view his testimony in a certain sense as new evidence by the Prosecution, which they came to after their evidence in chief was concluded. But in that sense, I would like to ask the following question: Does this fresh evidence fulfil all the elements required in order to (15)admit it, and on the other hand, whether, perhaps because of this evidence, the Prosecution should have requested a reopening of the case. Mr. President, regarding this point, I would like to state the following regarding fresh evidence found by the Prosecution. The Defence has been talking with the Prosecution since December 2000 regarding (20)another group of fresh evidence, and these are the newly discovered graves. In our conversations conducted in December 2000 and January 2001, in view of the fact that we expressed a certain negative stance regarding the introduction of these exhibits, the Prosecution stated that they would seek a reopening of the case. (25)So between the Prosecution and the Defence, there were never

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(1)unresolved questions regarding new evidence, but it is obvious that the Prosecution made their own selection regarding how to tender new exhibits, regardless of the fact that the Defence believes that this can only be done in a certain way that is required by new exhibits. And also in view (5)of the fact that a certain amount of time is required in order to prepare for this evidence, the Prosecution decided to introduce this evidence in the following way, in the way that they have done. In any case, the Defence believes that this evidence is not satisfactory for rebuttal, and in that sense has provided its explanation (10)and also in this motion from the 11th, Mr. President. And I have received information today that it was distributed to the Court in two ways which are required by the Court. So this would be everything regarding this witness and regarding his statement. (15)Now I would like to talk about a group -- or perhaps, Mr. President, you still have some questions. Perhaps then I can respond to them, or should I continue to respond to the issues posed by Mr. Harmon?

JUDGE RODRIGUES: [Int.] As far as I'm concerned, you may (20)continue.

MR. VISNJIC: [Int.] Mr. President, regarding the first group, the first category cited by the Prosecution as documents or evidence regarding the telephone conversations of August 2nd, as well as the accompanying documents, we had a slightly different categorisation, so (25)in this group of exhibits, we are also including evidence regarding the

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(1)chain of custody of the accompanying documents. So in that sense, we do have a general objection, and the objection relates to the following: The Defence objects in principle to the manner in which the Prosecution used these exhibits. (5)According to the Defence, it's a fact, and this was confirmed by certain Prosecution witnesses, first of all primarily Mr. Butler during his testimony during rebuttal, that the Prosecution was in the possession for a long period, or more precisely, from April 24th, 1998, in possession of these conversations, and it decided to use this evidence in a tactical (10)way. I do not want to get into chronology of the -- these exhibits and when they were in possession of the Prosecution, but this is mentioned in points 4 and 5 of our motion, 3, 4, and 5 from our motion of April 11th. What I would like to say once again, Mr. President, is that these conversations were not pointed out by the Defence. They were provoked by (15)the Prosecution themselves, but through questions posed to General Krstic, and then this was followed by a series of consequences, and all of this is contained in our previous objections. Having in mind the appeals ruling in the Delalic case, we believe for all of the reasons which were cited in that decision, these exhibits, (20)together with the group of exhibits that we listed in paragraph 3 of our submission of April 11th, we believe that they should not be admitted. Mr. President, regarding exhibits listed in category 2 of the Prosecutor's submission, and these are Exhibits 842/a and 842/b and 843 for which the Prosecution has stated that they are exhibits which the (25)Prosecution obtained on December 13th, 2000, Mr. President, we have the

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(1)following position on that group of exhibits. First, these are facts on which General Krstic spoke about during his interview; second, regarding which evidence was brought during the Prosecutor's evidence in-chief, so this is not a new topic which emerged from the evidence by the Defence. (5)If this were new evidence, as the Prosecution claims, we believe that these exhibits could only be tendered by a reopening of the case, implying all the consequences which would be valid for the Defence. Regarding category 3 listed in the Prosecution's exhibits regarding the conversations with Popovic and all the other conversations (10)relating to that, it is true that in part, these conversations were something that the Prosecution found out about in December of 2000, so they should be treated in the same way as any other new evidence should be treated. General Krstic in his interview to the Prosecution on the 18th and (15)19th of February, 2000, described in detail his relationship with Colonel Popovic. Therefore, this is not something that came about from the evidence by the Defence and which could eventually meet the Delalic standard for evidence during rebuttal. On the other hand, the majority of these conversations relate (20)directly to conversations, the so-called "kill them all" conversations which, according to the Defence, cannot be admitted in view of the manner in which they were used by the Prosecution. So the Defence also places the conversation between Krstic and Mandzuka in that group of separate exhibits, and that is Exhibit 862 - just one moment, please - 862/a and (25)862/b, in view of the fact that these conversations were in the same

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(1)notebook as the conversation "kill them all," and that they have been in the possession of the Prosecution since 1998. Furthermore, Mr. President, I must remind Your Honours that the Prosecution has discussed at length the relationship between General (5)Krstic and Lieutenant Colonel Popovic as it called a large number -- presented a large number of photographs, certain intercepts as well, so I do not consider this issue to have been prompted by General Krstic's response as to the question whether he had any conversations with Colonel Popovic. On the contrary, I feel that the Prosecution itself has raised (10)this topic on the one hand, and on the other, that it had discussed it sufficiently during its case in chief. Mr. President, that brings me to category 5, according to the classification of the Prosecution, and it relates to the authenticity of intercepts which the Prosecution had to prove in its rebuttal case. (15)Mr. President, regarding the authenticity of intercepts, we denied their authenticity up to a point during the Prosecution case itself, and as far as I can recollect, all those intercepts were given to us just before the first Prosecution witness, the first witness who intercepted conversations was called to the witness box. So we asked for some (20)additional time to react to them as we had received three large binders with notebooks containing these intercepted conversations. Mr. President, at that point in time, we did not realise the significance of the intercepted conversations in the sense of the "kill them all" intercepts. We did object regarding the authenticity and the (25)understanding of the content and the significance of the intercepted

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(1)conversations, but the objection regarding false conversations was made for the first time during the cross-examination of Mr. Krstic, and again, he was prompted by questions from the Prosecution. Therefore, it is the Defence submission that all these exhibits in category 5 belong to the (5)same group or the same category as the tapes because they came from them and are linked to them. I should now like to focus on category 6, and this category contains exhibits from the Zvornik Brigade which have been tendered through the testimony of Mr. Butler. Mr. President, Your Honours, the (10)Defence is under the impression that through Mr. Butler's testimony, the Prosecutor wanted to raise a number of topics which were not appropriately raised in a rebuttal case, and then at one point, they changed their minds and rested with these two documents. The first document has to do with the reply given by General Krstic to Her Honour Judge Wald. I have to (15)say, Mr. President, that General Krstic in his interview of the 18th and 19th had repeatedly -- specifying the dates, he had commented on the destiny of prisoners of war within the triangle Milici-Konjevic Polje-Bratunac. Therefore, it is my submission that that topic was raised during the Prosecution case in chief, and that it was the duty of the (20)Prosecution to present to Their Honours and the Defence all the evidence that it had in their possession. This applies in particular, Your Honours, to the second document, the daily combat report of the Zvornik Brigade in which the Prosecution denies the claims of the Defence that the Drina Corps was not on the road (25)of the Bratunac-Milici road. Allow me to remind you, Your Honours, of the

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(1)lengthy discussion and questions that we put to Prosecution witnesses including the expert witness of the Prosecution, Mr. Butler, as to which units were present along the Bratunac-Konjevic Polje-Milici road. And the end of the presentation of evidence, we discovered that the tank over (5)which we had a dispute, whether it was blue or green, was a tank belonging to MUP, and at the end, we identified the soldiers in the disputed clip over which we had a dispute, and again we established that they belonged to the MUP, and so on. The Defence really sees no reason whatsoever, if the Prosecution really believes that some other members or elements, (10)elements of the Drina Corps were present there, that the Prosecution didn't present that evidence during its case in chief. All this appears to us to be an omission on the part of the Prosecution rather than something provoked by the Defence case. Your Honours, in this connection, I should like to state the (15)following. It is a fact that the Prosecutor has a large quantity of documents in its possession but, at the same time, this also increases its responsibility with respect to the use of those documents. The Prosecutor cannot keep them up his sleeve and pull them out at will when that suits his interests and when the Defence has already completed a great part of (20)its case. And not only that, in this way, Mr. President, we are prejudiced in an adequate preparation of the Defence, because, by applying these tactics, the Prosecutor puts us in a position to constantly have to re-examine from the beginning certain positions that the Defence has taken and which we considered closed and established. (25)On the other hand, we do not have the sufficient time or resources

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(1)to react, and this brings me to the next topic, which is also linked to this one, and that is, Your Honour, category 8, relating to the testimony of Mr. Kruszewski and the statement that the Prosecutor has tendered into evidence in the rebuttal case. (5)First of all, it is my submission that we all agree that the Prosecutor had available this evidence in its main -- in its case in chief, during its case in chief. I think there is no justification in this case for the Prosecutor to say that he was prompted to present this evidence by the statement made by General Krstic in the courtroom, as the (10)Prosecutor in one stage of the presentation of its case in chief compiled an exhibit in which they presented the differences between General Krstic's statement and what the Prosecution believes it has evidence to prove. So the Prosecutor did study, in great detail, Mr. Krstic's interview from the 18th and 19th of February, during its case in chief. (15)On the other hand, General Krstic in that interview of the 18th and 19th devoted a great segment of his statement to the date when he became Corps Commander. Therefore, this was no new element for the Prosecution, which emanated from General Krstic's statement during the proceedings. (20)One further point in connection with this exhibit, Mr. President, and the statement of Witness II. In a sense, these two exhibits are linked, but on the other hand, there are numerous differences between them, and this will certainly be the subject of our analysis when preparing our final brief. What I wish to say is that one of these two (25)witnesses in his statement mentioned a number of persons who were present

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(1)at the alleged meeting on the 13th in the afternoon. Mr. President, by tendering evidence in this way, in the rebuttal case, and regarding this fact, we have been deprived of the possibility of examining all those persons and taking statements from them with regard to the details that (5)both of the witnesses testified about. On the other hand, Mr. President, and Your Honours, some of these persons appeared on the list of witnesses called by the Prosecution. So we don't know whether the Prosecution did talk to them; if he did, whether he asked him questions about this; and whether those witnesses gave any (10)answers about that. If the answers were negative, then for us, that is exculpatory material. We haven't gained possession of that, but we do have information from the media that the Prosecution did want to contact them. So not only do we consider these exhibits to be inappropriate for (15)the rebuttal case, but we also submit that even if the case were to be reopened, connected to this evidence, that the Defence would need additional time to prepare for them. And finally, with respect to Exhibit 883, and that is directive number 4. The first point we wish to make, Mr. President, is that the (20)Defence witness was not the first to study the strategic matters of the VRS. Prosecution Witness Mr. Butler did so on page 4792 of the transcript. Therefore, this is an issue that was to have been taken up during the Prosecution case in chief. A second point we wish to make is that the Prosecutor had a (25)witness planned for these events, the events of 1992, and that he

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(1)renounced using that witness for reasons unknown to us. A third point we wish to make is that taking into consideration when that exhibit was disclosed to us, or rather, when it was used here in court, not when we received it but when it was used in court, that our (5)ability to object to the authenticity of that evidence is limited because, to be quite frank, during these proceedings, no one has gone into any details regarding the year 1992, the tendering of such an important exhibit, which we feel absolutely should have been tendered as a Prosecution exhibit in their case in chief. (10)In view of the significance and scope of the document before us, it is our submission that by tendering it two days prior to the end of the proceedings, the Defence was absolutely deprived of the right to a proper and adequate response. Therefore, even if the Trial Chamber is considering the possibility of admitting this exhibit, and we feel that we (15)have provided very good grounds against its admission, we request a certain amount of additional time that would give us the opportunity to provide an adequate response to this exhibit. The Prosecutor has tried, first, to tender the document the back way through the testimony of Mr. Butler, and then through General (20)Radinovic's testimony who, Mr. President, in another context mentioned the word "Zepa." And if the very mention of that word is sufficient for this exhibit to be admitted, then we object again that it should have been tendered in the Prosecution's case in chief.

JUDGE RODRIGUES: [Int.] Mr. Harmon, is there anything (25)new that you would wish to add?

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(1) MR. HARMON: There is, Mr. President. I was informed in respect of this document which is directive 4, which is our category 7, I mentioned to you that it came to the attention of Mr. Butler in January of 2001, I can inform Your Honours that this was a document that was (5)submitted for translation in two other ongoing prosecutions, and it was not brought to our attention until after it was translated by the teams that were involved in those other prosecutions. It came to us on the dates and the time that I've mentioned. So that Your Honours know, the team that is involved in this (10)prosecution, both the investigative team and the analyst and everyone else associated with this separate investigation, was unaware of its existence. It is only found through the result of other prosecutions and investigations that are ongoing that then brought that to our attention in -- as I say, it was translated in December of 2000 and brought to (15)Mr. Butler's attention in 2001. Now, in respect of this document, there are a couple of things that I just need to point out. The first is, Mr. President, this document was given to the Defence on the 13th of February, 2001, and it was given to them pursuant to an agreement that we had with the Defence on an (20)understanding that key military documents would be provided to the Defence in advance of their being tendered in evidence. I refer Your Honours to the pleading that we filed, the Prosecution's reply to the Defence motion to exclude the testimony of rebuttal witness Mr. Richard Butler, I refer Your Honours to two items, two annexes in that. The first, you will find (25)the letter in which both -- there are three documents that were provided

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(1)to the Defence that are the subject of today's debate. One is directive 4, and the other are the Zvornik Brigade reports dated the 12th of July. All three of those documents, and only three, were given to them on the 13th of February, 2001, and this -- at the time it was given to them, the (5)first part of this letter reads, "Please find enclosed the following documents that are being disclosed in accordance with our agreement." The agreement that I'm referring to, Mr. President, is found at page 5905 of the transcript wherein I put on the record the actual agreement that we had between the parties. (10)Second of all, the substance of the document which deals with essentially people leaving the -- being essentially forced out of the enclave is consistent with the document that's already an exhibit and is already in evidence. Prosecutor's Exhibit 746, which was a decision of -- on the strategic objectives of the Serbian people in Bosnia and (15)Herzegovina, and those strategic objectives were, in the first instance, establishing borders separating the Serbian people from the other two ethnic communities. This is a document that's been in evidence, was in evidence in the course of this -- submitted in the course of this trial. Now, what I'm hearing in the course of this discussion, debate, is (20)that rule of thumb, if the Prosecutor's Office had evidence that it didn't introduce in its case in chief, then you can't introduce it in rebuttal. Now, I want to try to bring some, some common sense to this debate, and that's this: The Prosecutor's Office on one hand is told to present their case in an expeditious fashion with sometimes restrictions (25)on the amount of time that witnesses and the cases can be presented. If

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(1)the Prosecutor is forced to anticipate everything and therefore put every piece of evidence we have into evidence or run the risk of not getting it into evidence later on through an objection that, one, we had it or, two, we didn't anticipate properly, then these cases will run forever. And I (5)know that goes against the proper and efficient running of these trials and the management of these trials. Unfortunately for the Defence, there are some things we can present in rebuttal. An accused can't get up and testify falsely to the Trial Chamber, and because we have documents in our possession, we can't (10)use those in terms of showing and demonstrating the false testimony of an accused or the false testimony of any witness. There are documents and evidence that we do possess that are proper for rebuttal, and unfortunately for the Defence, the attempts to restrict the use of those kinds of documents on some rather technical and (15)narrow reading of the Delalic decision, or the fresh evidence requirements of the Delalic case, are too restrictive and essentially preclude the use and the introduction of evidence into the case itself. Now, Mr. Visnjic mentioned that the authentication documents which are our category A -- category 5 are the same as the "kill them all." (20)Well, that's not correct. Those documents are documents -- and the Defence objected to the intercepts on the basis of their reliability, not on the basis that they weren't authentic. They said they weren't reliable. And Witness DB testified, as I recall, to -- he testified that he was familiar with intercept procedures and he had some questions and (25)doubts about the training that the ABiH intercept operators had had, and

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(1)therefore they weren't reliable. He didn't testify -- and there was no contest as to whether they were not authentic. General Krstic put the issue of whether they were authentic at issue when he said that the "kill them all" tape was a 100 per cent (5)montage, a fabrication. That put not only the tape into question and the authenticity of that tape and the notebooks, but every notebook of every intercept that had been presented. The Defence claims that on one hand -- first of all, the Defence had every opportunity on cross-examination to examine, and they did (10)examine, these witnesses who had these intercepts and brought the intercepts forward. They cross-examined them on the content, the manner in which they recorded these things. They cross-examined them on all of their procedures, where they went after they were recorded, how they were preserved, and that was all (15)subject of cross-examination. But the issue of the authenticity of these was an issue that was raised by General Krstic's testimony. Next, the Defence itself started to raise the similar kind of -- presented similar kind of evidence in the surrebuttal case with this last witness. As to the witness, the witness testified about where he had (20)acquired certain documents and how he had acquired certain documents. So when the Defence complains about these efforts by the Prosecutor to rebut the testimony of General Krstic, and his claim that these are false and montages and yet presents the same type of evidence in its surrebuttal case, it is something at least that I have some difficulty in dealing (25)with.

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(1)Now, I think, Mr. President, that's all I have to say specifically on these. I'm prepared to answer any questions Your Honours may have on any of these categories or any of these specific pieces of evidence.

JUDGE RODRIGUES: [Int.] Mr. Visnjic, I think we have to (5)try and finish this. Have you anything to add?

MR. VISNJIC: [Int.] Mr. President, I was interrupted by Mr. Harmon and I just wanted to finish and I will be very brief regarding Exhibit 883. This was given to us in February, but we were not given any (10)indication that this exhibit will be used. I have to say that the Serbian copy of that document is absolutely illegible if we are talking about technical matters, and this is something that can be checked in your copies as well. So the document really is useless for any kind of work. Since we were not provided with indications that that document will be (15)used, we didn't use it. That's point number one. Point number two, the assessment of the Prosecution whether this is document -- this was a document, that is, directive number 4, and whether it's related to any other documents, we believe that these -- they relate to two different time periods, and I don't see, in particular, (20)which connection this document has with the testimony of General Krstic. One is from 1992 and the other is from 1995. The fact that the Defence in a certain way has played into the Prosecution's game and has posed questions regarding the authenticity to witnesses who were here, simply in view of the fact we did not have a ruling by the Trial Chamber, we were in (25)a dilemma whether we should ask anything -- the witnesses anything or not.

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(1)So in case these exhibits in a certain way are not accepted, everything that we ask the witnesses in connection with these documents should be deleted from the transcript, ignored. There is one more point, Mr. President, regarding the problems (5)that the Prosecution has with the documents that they have in their possession. Almost at each meeting with the Prosecution we would ask for documents in accordance with Rule 68, and we never specifically received them. We received an explanation that there is no obligation on the side of the Prosecution -- on the part of the Prosecution to do that. The (10)documents that we received, we ourselves found certain conversations that were not used by the Prosecution. I don't know whether there are other such conversations or intercepts in the documents that the Prosecution has in accordance with Rule 68, or just the fact that the Prosecution does have such a vast number of documents to them means that they are the only (15)ones who should use them and not the Defence as well. If the Prosecution does have so many documents and they cannot find documents which would accuse the accused, perhaps then there are other documents in accordance with Rule 68 which could be -- which are exculpatory and which could be revealed, and this has not been done.

(20) JUDGE RODRIGUES: [Int.] Mr. Harmon?

MR. HARMON: It's with great reluctance that I prolong this debate, Mr. President, but the assertion by my colleague that he has never received a Rule 68 document is false. He has received document -- I'm going to quote him what is in the record here: "At each meeting with the (25)Prosecution, we would ask for documents in accordance with Rule 68 and we

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(1)-- and we never specifically received them." Now, perhaps my colleague would like to refresh his recollection on that statement and make a retraction of that statement. It's a new issue, and it's one that, very frankly is one that is unnecessary at this (5)stage of the pleadings -- of the proceedings, and it is one for which there has never been a claim, and it's one which Mr. Visnjic well knows we have given him documents in respect of Rule 68. Mr. McCloskey has sat with Mr. Visnjic for many hours discussing issues that may be related to Rule 68. Perhaps my colleague wishes to retract that statement so the (10)record is perfectly clear in that regard. In respect of the motion to continue, I was going to address that separately. I should have done it perhaps at the time. But my colleagues in their motion state that they were never put on notice that an effort was necessary - I'm referring to paragraph 15 of their motion - that the (15)Defence has never been put on notice that such an effort need be undertaken. The indictment specified in the time period from July to November 1995 is the relevant period of this case. Paragraph 1 of the indictment refers to 1992. They were put on direct notice that 1992 was a matter (20)that they should have investigated because there are allegations in that paragraph. It was a paragraph they did not agree to in terms of agreed matters of fact or law. And furthermore, it is a matter that has been at issue in this case for a considerable period of time. There have been documents relating to the period in question: (25)Prosecutor's Exhibit 30, a UN report on Srebrenica; Exhibits 33 through

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(1)37, which are numerous reports prepared by Tadeusz Mazowiecki from 1992 and 1993; Mr. Butler addressed the issue of the background of the war in 1992; paragraphs -- that's Prosecution Exhibit 403, paragraphs 1.0 to 1.4. Professor Radinovic in his report addressed 1992. The Trial Chamber (5)has asked questions about the background of these events. So when the Defence asserts that it needs more time to investigate this because, quote, "It has never been on notice that such an effort need be undertaken," I think the record speaks clearly for itself, as does the indictment itself. (10)Those are my only remarks, Mr. President. I have nothing further, and thank you for your indulgence.

JUDGE RODRIGUES: [Int.] To finish, please, Mr. Visnjic.

MR. VISNJIC: [Int.] Mr. President, Mr. Harmon is right. I will retract that part of my statement; namely, I did start talks with (15)Mr. McCloskey directly and after our request for the delivery of certain exculpatory material. And in that sense, I did make a mistake. But also, just by mentioning and accepting the fact that 1992 is mentioned in the indictment, the Prosecution has admitted that they should have used this exhibit during the case in chief, if it is something that is of major (20)importance. I, Mr. President, don't know what happens in the offices of the Prosecution regarding evidence in the same way that they don't know what happens in our offices regarding evidence, and I think that each should bear their own responsibility in this regard.

JUDGE RODRIGUES: [Int.] We are going to prepare a (25)decision which will have to be published as soon as possible because we

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(1)understand that you need this ruling from us to be able to continue your work. Today, we are going to stop there, and so the hearing is adjourned.

--- Whereupon the Exhibit Motion Hearing adjourned at 5.45 p.m.

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(1) Blank page inserted to ensure pagination corresponds between the French and English transcripts. (25)