IT-04-75-T 11690 D11690 - D11494 24 May 2013 SF UNITED NATIONS International Tribunal for the Case No. IT-04-75-T Prosecution of Persons Responsible for Serious Violations of Date: 24 May 2013 International Humanitarian Law Committed in the Territory of the former Yugoslavia since 1991 IN TRIAL CHAMBER II Before: Judge Guy Delvoie, Presiding Judge Burton Hall Judge Antoine Kesia-Mbe Mindua Registrar: Mr. John Hocking Date: 24 May 2013 THE PROSECUTOR v. GORAN HAD@I] PUBLIC PROSECUTION MOTION FOR THE ADMISSION OF EXHIBITS CITED IN THE AMALGAMATED EXPERT REPORT OF REYNAUD THEUNENS AND REQUEST FOR VARIATION OF THE WORD LIMIT The Office of the Prosecutor: Mr. Douglas Stringer Counsel for Goran Had`i}: Mr. Zoran @ivanovi} Mr. Christopher Gosnell Case No. IT-04-75-T 1 24 May 2013 11689 THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA Case No. IT-04-75-T THE PROSECUTOR v. GORAN HAD@I] PUBLIC PROSECUTION MOTION FOR THE ADMISSION OF EXHIBITS CITED IN THE AMALGAMATED EXPERT REPORT OF REYNAUD THEUNENS AND REQUEST FOR VARIATION OF THE WORD LIMIT I. Request for variation of the word limit 1. The Prosecution seeks a variation of the word limit in conformity with section 7 of the Practice Direction on the Length of Briefs and Motions. The Prosecution requests an additional 291 words to fully present the Trial Chamber and the Defence with its arguments in favour of the admission of documents cited in the expert’s report as well as documents not cited in the report. The parties will benefit from a clearly stated position with respect to the tendered material. II. Introduction 2. The Prosecution moves the admission of the exhibits cited in the expert report of Reynaud Theunens entitled “Goran HAD@I] and the SAO SBWS/RSK TO - SVK (1991-1993)”, dated 10 July 2012 (“Amalgamated Report”). These exhibits are on the Prosecution’s exhibit list filed pursuant to Rule 65ter(E)(iii) of the Tribunal’s Rules of Procedure and Evidence (“Rules”), are relevant and probative to the issues in the case, and will assist the Trial Chamber in assessing the accuracy, reliability and weight of the report. In addition, the Prosecution offers 19 documents which were reviewed by Theunens but not cited in the amalgamated report. Case No. IT-04-75-T 2 24 May 2013 11688 3. Annex A consists of an updated version of the list of documents circulated to the Trial Chamber and the Defence on 22 January 2013 (“List of Theunens Documents”), indicating which documents are now being proposed for admission and which documents will not be offered for admission through Theunens. III. The documents cited in Theunens’ amalgamated report are relevant and probative 4. The Prosecution requests the admission of the Rule 65ter exhibits listed at tabs 1 to 490 and tab 505 of the List of Theunens Documents, with the exception of those exhibits previously admitted into evidence and exhibits for which the Prosecution no longer seeks admission. 5. The Prosecution notified the parties1 of its intention to withdraw its application to admit six lengthy books and manuals.2 The position remains unchanged.3 In addition, the Prosecution withdraws 65ter#02355. 6. The Prosecution tenders the exhibits listed at tabs 1 to 490 and 505 of the List of Theunens Documents which are cited in the amalgamated report. They are integral to understanding the analyses and conclusions presented in the report. It is therefore necessary to review the report in conjunction with the exhibits cited therein in order to assess the accuracy and the reliability of the report, as well as to understand in full the nasis of the expert conclusions. 7. During his testimony, Theunens described the process through which he selected material for his expert report. He explained the choice of sources, the methodology applied, the criteria to assess the reliability of the source and the credibility of the information.4 1 Email dated 15 March 2013. 2 Exhibits with Rule 65ter numbers 65ter#00001, 65ter#00003, 65ter#00007, 65ter#00014, 65ter#00024 65ter#00029. 3 The same email proposed the partial admission of an additional 11 documents; these will be dealt with below. 4 T.4079-4080, court transcript of 7 May 2013. Case No. IT-04-75-T 3 24 May 2013 11687 8. Theunens relied on the footnoted documents during the course of his testimony. The Defence also put questions to Theunens relating the substance of cited documents to support aspects of its theory of the case. The cited documents cover a wide range of topics addressed in the amalgamated report, including JNA doctrine and the legal framework, military structure, military discipline, the creation and utilization of volunteer and paramilitary units, military operations in Croatia, international agreements, evidence of crimes committed against non-Serbs, operations for taking over towns and villages in the Serb autonomous regions in Croatia, failure of the JNA to investigate and punish perpetrators, the relationship between JNA and civilian authorities, army logistics and assistance from Serbia to the SAO's in Croatia. The Prosecution maintains that the cited documents are admissible as they satisfy the threshold requirements of relevance and admissibility, and form an integral part of Mr. Theunen’s expert report. 9. The Had`i} Defence has indicated by email of its intention not to object to the admission of contemporaneously-created documents.5 The Prosecution interprets this as applying to documents issued before 1 January 1994. Similar to the argument made with respect to the documents cited in the report of Dr. Christian Nielsen, it is submitted that the test for admissibility is not whether a document was created during the Indictment period, but rather whether it is relevant and probative to issues presented in this case. Some of the documents created as of 1 January 1994 provide insight into the events that took place during the Indictment period,6 while others provide evidence of a continuing pattern relating to the joint criminal enterprise that is alleged to have been in existence during 1 April 1991 to at least 31 December 1995.7 10. The documents used by Reynaud Theunens included: (1) laws, orders, decrees and decisions, (2) military documents issued by JNA, TO units and volunteer units during the conflict in Croatia, (3) government letters, minutes of meetings and official reports, (4) police and ministry of interior documents, (5) media material (newspaper and television shows), and (6) monographs. Regarding monographs, the Prosecution 5 See email of 8 May 2013 entitled “Admissibility of documents footnoted in the Theunens Report”. 6 See documents marked as “Retrospective” in the Comments filed (column K). 7 See documents marked as “JCE continuing pattern” in the Comments filed (column K). Case No. IT-04-75-T 4 24 May 2013 11686 announced its intention to tender excerpts of the more voluminous books and manuals8 in accordance with the Trial Chamber’s guidelines. Those parts that are cited in the expert’s reports are therefore submitted for admission in this motion.9 11. The Prosecution withdraws its application to tender documents included in the List of Theunens Documents that are duplicates of other listed documents.10 IV. Documents not included in the expert report 12. In addition to the above-mentioned documents, the Prosecution seeks to admit 19 documents which were not included in the amalgamated report and that are relevant to the topics about which Theunens gave evidence. Due to timing considerations, the Prosecution did not have an opportunity to use these documents and announced that documents of a similar nature and content will be offered for admission in the present Motion.11 All these documents have been reviewed by Theunens and were included in the case-specific report prepared for this case. 13. The Prosecution will only seek the admission of documents which fall into one of the categories discussed during Theunens’ examination-in-chief. A description is provided below with respect of each document offered for admission as well as the topics to which it relates. A. Documents relating to military operation in SBWS 14. Theunens gave evidence about military operation in Croatia in 1991 and JNA operations in the SBWS region. One such document was Exhibit D13, issued by Lt. Col. Mirko Bro~eta12 with relation to a conflict in Erdut13. Theunens also was asked to 8 Email to the parties on 15 March 2013. Please note that in addition to the books and manuals announced in its 15 March 2013 motion, the Prosecution hereby seeks the partial admission of 65ter#02108, Borisav Jovi}’s book. Annex A identifies the pages submitted for admission. 9 See Annex A for the page numbers submitted with regard to documents with Rule 65ter numbers: 65ter#00011, 65ter#00015, 65ter#00016, 65ter#00017, 65ter#00018, 65ter#00019, 65ter#00021, 65ter#00023, 65ter#00028, 65ter#00036 and 65ter#00085. 10 See documents marked as “Removed as a duplicate” in the Comments filed (column K). Please note that 65ter#01103 (Tab 284) and 65ter#04775 (Tab 459) were removed and replaced before the commencement of Mr. Theunens’s testimony respectively by 65ter#01103 (Tab 284.1) and 65ter#04801 (Tab 674). 11 T.4372, lines 4-13. 12 Commander of the 2nd Battalion of the 51st Mechanized Brigade. Case No. IT-04-75-T 5 24 May 2013 11685 provide his views with respect to a new document (65ter#06199, admitted as P01688) which dealt with the conflict in Dalj. 15. The Prosecution offers Rule 65ter#00195, an order issued by Lt. Col. Mirko Bro~eta on 1 July 1991. The document shows the marching orders of JNA units to the SBWS region and supports the issue of JNA deployment as part of the change of the JNA’s mission during the war in Croatia.14 It supports the evidence included in D13 and P01688, and corroborates the evidence of witness GH-008 whose evidence was received pursuant to Rule 92quater15.