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IT-95-5/18-T 79125 D79125 - D78929 03 October 2013 AJ UNITED NATIONS International Tribunal for the Case No. IT-95-5/18-T Prosecution of Persons Responsible for Serious Violations of Date: 3 October 2013 International Humanitarian Law Committed in the Territory of former Yugoslavia since 1991 IN TRIAL CHAMBER III Before: Judge O-Gon Kwon, Presiding Judge Howard Morrison Judge Melville Baird Judge Flavia Lattanzi, Reserve Judge Registrar: Mr John Hocking THE PROSECUTOR v. RADOVAN KARAD@I] PUBLIC WITH PARTLY CONFIDENTIAL APPENDICES REVISED PROSECUTION’S BAR TABLE MOTION FOR THE ADMISSION OF DOCUMENTS RELATED TO THE MUNICIPALITY COMPONENT WITH PUBLIC APPENDICES A AND B AND CONFIDENTIAL APPENDIX C The Office of the Prosecutor: Mr Alan Tieger Ms Hildegard Uertz-Retzlaff The Accused: Standby Counsel: Mr Radovan Karad`i} Mr Richard Harvey 79124 THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA Case No. IT-95-5/18-T THE PROSECUTOR v. RADOVAN KARAD@I] PUBLIC WITH PARTLY CONFIDENTIAL APPENDICES1 REVISED PROSECUTION’S BAR TABLE MOTION FOR THE ADMISSION OF DOCUMENTS RELATED TO THE MUNICIPALITY COMPONENT WITH PUBLIC APPENDICES A AND B2 AND CONFIDENTIAL APPENDIX C I. INTRODUCTION 1. The Prosecution respectfully requests the Trial Chamber to admit, pursuant to Rule 89 (C) of the Rules of Procedure and Evidence (“Rules”), 247 items listed in Appendix A and confidential Appendix C (together “the Appendices”), which relate primarily to the Municipality component. 2. The proposed evidence consists primarily of official records from different sources, including the Serbian Democratic Party (“SDS”); the authorities of the Republika Srpska (“RS”); agencies of the United Nations; and authorities of the SFRY and the FRY. It also includes interviews of the Accused and other persons published in RS media controlled by the Bosnian Serb authorities, published in FRY publications, and in media sources in third countries. In addition, it includes video clips of interviews of the Accused or other alleged JCE members or tools. 3. In respect of each item, the Prosecution has explained in the Appendices its relevance to the Prosecution’s case and probative value, and, where it has been admitted in a previous case at the Tribunal, its previous exhibit number.3 The Prosecution has provided the Accused with an opportunity to comment on each 1 Appendix C is filed on a confidential basis because it contains references to protected witnesses. 2 Videos: 65ter#s 40136A; 40382; 40403A; 45019; 45054; 45099A; 45099B; 45238A; 45366; 45367 are attached in Appendix B. 3 Prosecutor v. Karad`i}, Case No. IT-95-5/18-T, Order on Procedure for Conduct of Trial, Appendix A, Part VII, para. R, 8 October 2009. Unless otherwise noted, all citations below are to Case No. IT-95- 5/18-T. Case No. IT-95-5/18-T - 1 - 3 October 2013 79123 item. The Defence response is contained in the column entitled “Opposing Party’s Response”. 4. As the Chamber has noted: “evidence does not need to be introduced through a witness in every circumstance, and there may be instances where it is appropriately admitted from the bar table.”4 The Chamber has previously indicated that documents could be admitted from “the bar table at a later stage of the proceedings should the Prosecution not be able to otherwise introduce them through a witness in the course of the trial.”5 5. As explained in greater detail in the Appendices, those items relate to various issues relevant to this case, including inter alia to the Accused’s command and control over the RS authorities; notice to him of crimes by the VRS and MUP; and the presence of paramilitaries in the municipalities. II. OBJECTIONS BY THE DEFENCE 6. The Defence has not contested the authenticity of any item listed in the Appendices. It has objected to the admission of items, on various grounds, and the Prosecution sets forth below its position in respect of those objections. 7. In addition, the Prosecution agrees not to tender, at this stage, 19 items to which the Defence objected: 65ter#s 00293; 00721; 01142; 01501; 01550; 01661; 05436; 05520; 06506; 07818; 10826; 11919; 12050; 18899; 22802-22804, 23114 and 23484. The Prosecution has not listed those items in the attached version of the Appendices. The Prosecution has also not listed in attached Appendix A two additional items, 65ter#s 00596 and 23504. A. ADMISSION OF ITEMS THAT WERE NOT SHOWN TO WITNESSES 8. The Accused objects to the admission of the following items on Appendix A on the basis that they should have been shown to witnesses, 65ter#s: 01110; 01582; 05364; 05367; 05372; 05374; 05377; 02559; 05545; 05557; 05558; 05570; 05588; 05645; 05669; 05670; 05777; 11229, 17808; 17868; 18374; 18528; 21603; 18946; 21839; and 22938. 9. The Trial Chamber has previously rejected this argument: there is no general rule against admitting documents from the bar table which could have been shown to 4 Decision on the Prosecution’s First Bar Table Motion, 13 April 2010 (“Decision on First Bar Table Motion”), para.9. 5 Decision on the Prosecution’s First Bar Table Motion, para.11, 13 April 2010. Case No. IT-95-5/18-T - 2 - 3 October 2013 79122 witnesses. The fact that the Accused did not have the opportunity to cross- examine a witness on a specific document does not prevent it from being admitted from the bar table if the requirements of Rule 89(C) and (D) are met.6 The relevant and probative value of the documents as described in the Appendices is not outweighed by the need to ensure a fair trial. 1. Admission of a document that refers to serious allegations, or a controversial issue, that were not presented through testimony 10. The Accused objects to 65ter number 00891 on the basis that it deals with a controversial issue and thus should have been presented though testimony. The “controversial issue” for the Defence is the receipt, distribution and implementation of the Variant A/B Instructions. This document, which relates to the Bosanski Petrovac municipality, was discussed by witness Dorothea Hanson in her expert report on Crisis Staffs, Exhibit P02589 at fn. 29. Further, Ms Hanson specifically mentioned Bosanski Petrovac when she testified about the nature of receipt and distribution of Variant A/B Instruction (see. T.14502:22– 14512:24, in particular T.14505). 2. Admission of documents that contain serious allegations that were not presented through testimony 11. The Accused objects to items, 65ter#s 00283 and 00851, on the basis that the items contain serious allegations which should have been put to a witness. The issues contained in these items, however, were in fact discussed with witnesses. (a) 65ter# 00283: This is relevant to crimes against non-Serbs in these areas by Bosnian Serb forces and to the widespread knowledge of Bosnian Serb crimes at Kori{anske Stijene (Scheduled Incident B.15.6), and in Prijedor, Sanski Most, Doboj, Klju~, Tesli} and other areas, and to the involvement of the RS MUP, in particular, in those crimes. These issues were discussed with witnesses Kreji} (T.20856:19-20857:6) and Komljenovi} (P03768, page 15). (b) 65ter# 00851: The Klju~ document is relevant to the persecutory campaign against non-Serbs and to the facilitation of the expulsion of non-Serbs via 6 Decision on Prosecution’s Motion for Admission of Evidence from the Bar Table (Hostages), 01 May 2012 (“Hostages Decision”), para.11. See also Prosecution’s Bar Table Motion for the Admission of Documents Related to the Hostages Component, 18 April 2012, para.8-9 and Prosecution’s Second Bar Table Motions for the Admission of Intercepts with Public Appendix A and Confidential Appendix B, on 20 April 2012, para.9-11. Case No. IT-95-5/18-T - 3 - 3 October 2013 79121 “resettlement” agencies. These issues were discussed with witnesses. See Asim Egrli} (see T.19924:23-19925:25). The Banja Luka Resettlement Agency and resettlement generally was discussed with expert witness Hanson (see P02589, para. 100 and T.14640-14643 and T.14871:17-14885, and Exhibits P02720 to P02730 and P02731-P02734). 3. Admission of a document which relates to events in an uncharged municipality and deals with acts and conduct of the Accused and was not presented through testimony 12. The Accused also objects to one item, 65ter# 01014, on the basis that the document relates to Trnovo in March 1992. This issue is dealt with in Section D. below, and additional information has been included in italics in the relevance and probative value column in Appendix A. B. ADMISSION OF INTERVIEWS / NEWS REPORTS FROM THE BAR TABLE 13. The Accused objects to the admission of 18 items (eight documents and ten videos) on the basis that “news media reports are not admissible from the bar table.”7 The Trial Chamber has noted previously that “written media reports would not meet the reliability and probative value requirements without a witness to testify to the accuracy of the information contained therein”.8 However, for the reasons set out below, the proposed exhibits may be admitted as reliable and probative. 14. There is no blanket rule at this Tribunal precluding the admission of written media reports. To the contrary, as a general matter hearsay evidence is admissible, and Trial Chambers admit and rely upon written media reports as a matter of course.9 15. The Appeals Chamber has made clear that the admission of a document into evidence requires only some prima facie indicia of reliability.10 This prima facie assessment cannot be based solely on whether or not the document was tendered 7 65 ter#s 00699; 01126; 01218A; 05793; 11863; 12073; 13310; 15073; 40136A; 40382; 40403A; 45019; 45054; 45099A; 45099B; 45238A; 45366; 45367.

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