IT-09-92-PT D38541 - D38528 13 April 2012

38541
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UNITED NATIONS
International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the former Yugoslavia since 1991
Case No.: IT-09-92-PT

Date: 12 April 2012

IN TRIAL CHAMBER I

Before:

Judge Alphons Orie, Presiding Judge Bakone Justice Moloto Judge Christoph Flgge Mr. John Hocking THE PROSECUTOR v. RATKO MLADI]

Registrar:

Public with Confidential Annexes A and B

PROSECUTION 92TER MOTION: LJUBOMIR OBRADOVI, RM321

The Office of the Prosecutor:

Mr. Dermot Groome Mr. Peter McCloskey Counsel for Ratko Mladi}:

Mr. Branko Luki} Mr. Miodrag Stojanovi}

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THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA

IT-09-92-PT THE PROSECUTOR v. RATKO MLADI]

Public with Confidential Annexes A and B1

PROSECUTION 92TER MOTION: LJUBOMIR OBRADOVI, RM321

I. 1.

Introduction Further to the Prosecutions Submissions on Trial Chamber Guidelines

(Guidelines Submission),2 the Prosecution seeks leave to adduce the prior transcript evidence of witness Col. Ljubomir Obradovi} (RM321) from the Tolimir case (Tolimir Testimony)3, together with its associated exhibits, pursuant to Rule 92ter of the Rules of Procedure and Evidence (Rules). 2. Although the instant motion does not conform to the Chambers guidance

concerning Rule 92ter applications (Guidelines),4 the proposed evidence satisfies all of the admissibility requirements of Rule 92ter(A). It further provides a concrete example of some of the issues raised in the Guidelines Submission. Should the Chamber reject the Guidelines Submission, the Prosecution will withdraw this application and lead Col. Obradovi}s evidence viva voce.

The Annexes are filed confidentially because they refer in part to confidential exhibits and testimony. Prosecutor v. Mladi}, Case No.IT-09-92-PT, Prosecution Submissions on Trial Chamber Guidelines, 2 April 2012. 3 Prosecutor v. Tolimir, Case No.IT-05-88/2-T, Trial Transcript, 29-31 March 2011 (Tolimir Transcript). 4 The Guidelines are set forth in Annex A to the Guidelines Submission.
2

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II. 3.

Applicable Law The Prosecution incorporates by reference its summary of the applicable law

set forth in paragraphs 5 to 8 of Prosecution 92ter Motion: RM505.5 III. The Chamber Should Admit Witness RM321s Tolimir Testimony and Associated Exhibits Pursuant to Rule 92ter 4. Col. Obradovi}s Tolimir Testimony and the associated exhibits satisfy all of

the admissibility requirements of Rules 89 and 92ter(A). They should, therefore, be admitted. 5. Col. Obradovi} was the head of the Operations and Training Organ of the

VRS Main Staff in 1995. He was directly subordinated to the Chief of the Administration for Operations and Training Gen. Radivoje Mileti}, as his deputy. As set out in his Rule 65ter Witness Summary6, Col. Obradovi}s evidence deals with several structural, procedural and functional elements of the VRS Main Staff and its subordinate units. More particularly, Obradovi} provides important evidence on: Key command personnel, including Gen. Mladi}, VRS Main Staff Assistant Commanders and members of the Staff Sector of the Main Staff; The responsibilities of various VRS Main Staff Sectors and Administrations, including Operations and Training, and the sectors for Security and Intelligence, and Civilian Affairs; Lines of reporting, including and superior/subordinate relationships within the VRS Main Staff; The process followed by the VRS Main Staff in drafting Directives, including Directives 7 and 7.1; The regulation of humanitarian aid and UNPROFOR convoys within the VRS Main Staff and the personnel involved in this process, including Generals Mladi}, Tolimir, and Mileti}; Units attached to the VRS Main Staff, including 10th Sabotage Detachment and 65th Motorised Protection Regiment, and its Military Police Battalion; and Communication and reporting requirements and practices within the VRS.

6.

This evidence is highly relevant to and probative of salient and material issues

arising under the Indictment concerning the Srebrenica events. Further, to the extent that Col. Obradovi}s Tolimir Testimony concerns the structural, procedural and
5 6

Prosecutor v. Mladi}, Case No.IT-09-92-PT, Prosecution 92ter Motion: RM505, 2 April 2012. See Prosecution Witness List, 10 February 2012, p.337.

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functional elements of the VRS Main Staff, his evidence is also important to establishing Mladi}s broader responsibility in relation to all other components of the Indictment. 7. The Prosecution seeks to tender Col. Obradovi}s Tolimir Testimony for the

reasons set out below. The Prosecution attaches at Confidential Annex A, a chart of the proposed Rule 92ter evidence, including a list of associated exhibits it seeks to admit. Each of these has been selected as integral and indispensable to a clear understanding of Col. Obradovi}s Tolimir Testimony. Additionally, Confidential Annex B contains transcript references for the proposed Tolimir Testimony. 8. Col. Obradovi} will be available at trial for cross-examination by the Defence

and questioning by the Judges. Thus, the admission of his Tolimir Testimony and its associated exhibits in no way infringes upon the rights of the Accused. 9. The Prosecution seeks to conduct a limited and focused examination of the

witness to clarify relevant aspects of his Tolimir Testimony and the associated exhibits, as his evidence directly involves Gen. Mladi} and issues concerning command within the VRS Main Staff. IV. The Case of RM321 Illustrates Some of the Problems with the Chambers Guidelines A. 10. Transcripts Paragraphs 10 to 16 of the Guidelines Submission the Prosecution sets out the

Prosecutions position with respect to the Guidelines on the use of transcript evidence. Although the Chamber could find that in this instance exceptional circumstances as contemplated by the Guidelines justify the admission of Col. Obradovi}s Tolimir Testimony, this situation underscores the infirmity of a presumptive prohibition on adducing such evidence, particularly in the case of an adverse witness. 11. No previous ICTY Witness Statement exists for Col. Obradovi}. Col.

Obradovi} testified as a defence witness for the defence of Gen. Radivoje Mileti} in the case of Prosecutor v. Popovi}, et al..7 Although subsequently called as a Prosecution witness in the Tolimir case and the Karad`i}8 case (pursuant to Rule 92ter), Col. Obradovi} testified pursuant to a Rule 90(E) caution. Both Chambers
7

Prosecutor v. Popovi}, et al., Case No. IT-05-88-T, Trial Transcript, 13-14 and 17-19 November 2008 (Popovi} Transcript). 8 Prosecutor v. Karad`i}, Case No. IT-95-5/18-T, Trial Transcript, 22-24 and 27 February 2012 (Karad`i} Transcript).

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expressly advised him of his right against self-incrimination,9 given his senior position in the Main Staffs Operations and Training Administration and in view of the pivotal role played by that Administration in effectuating VRS operations in Srebrenica and @epa.
12.

Col. Obradovi} reaffirmed his Tolimir testimony during his appearance as a

Prosecution witness in the Karad`i} case.10 Nevertheless, because of his position in the Main Staff within the temporal scope of the Indictment, and his knowledge of VRS operations conducted during this period, Col. Obradovi}s interests are adverse to the Prosecution. In these circumstances, the Prosecution considers that it would be neither prudent nor practical to attempt to replace Col. Obradovi}s sworn, crossexamined prior testimony with a new statement, either extracted or amalgamated. First, it is doubtful that Col. Obradovi} would cooperate with process of converting his sworn oral evidence into a written statement. Second, even if such a statement could be obtained, it would fundamentally deprive the Chamber of the most relevant, probative and tested evidence availablein essence placing form over substance.
13.

Further, the creation of an extracted or amalgamated statement would require

an unnecessary expenditure of Prosecution resources essentially to repackage evidence already expressly admissible under the Rules in its present form. As previously noted, any such new statement would require translation and disclosure, further drawing upon limited Tribunal resources and potentially delaying the proceedings. Admitting Col. Obradovi}s Tolimir testimony would avoid this inefficiency, whilst ensuring the Chambers ability to consider the most complete and reliable evidence available for the witness. B. 14. Redaction of Transcripts The Prosecution incorporates by reference its previous submissions and the

proposed procedure advanced with respect to RM516 concerning the redaction of

Tolimir Transcript, T.11926:6-14, 29 March 2011; Karad`i} Transcript, T.25076-77, 22 February 2012. 10 Karad`i} Transcript, T.25074-75, 22 February 2012.

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transcripts.11 Thus only material portions of Col. Obradovi}s Tolimir Testimony have been proposed for admission, reducing the transcript of evidence by around 20-24%.12 C. 15. Associated Exhibits Paragraphs 17 to 22 of the Guidelines Submission sets out the Prosecutions

position with respect to the admission of Associated Exhibits. 16. The Prosecution seeks to admit 19 of 32 exhibits associated with Col.

Obradovi}s Tolimir Testimony. Each is integral to a complete understanding of Col. Obradovi}s proposed evidence and was tendered through him. This material comprises, inter alia, a chart showing the structure of the VRS Main Staff in July 199513; VRS orders and instructions concerning communications, reporting requirements, the sending of detailed combat reports, the selection of unit personnel, combat activities and prisoners of war.14 The material further covers documents related to the regulation of convoys, including documents marked by the witness in court identifying the initials of key VRS Main Staff participants in this process, such as Generals Mladi}, Tolimir and Mileti}15; documents related to the use and characteristics of chemical weapons and illustrating their characteristics16; and a document relating to the disarmament of the able-bodied Bosnian Muslim men in the @epa enclave.17 17. Limiting the admission of associated exhibits adversely affects the

Prosecutions ability to fully present its case, if not discharge its burden of proof. In this instance, such a limitation would result in an unclear and incomplete understanding, if not misunderstanding, of Col. Obradovi}s Tolimir Testimony, which directly bears on material issues in this case. Ultimately, the exclusion of relevant documentary evidence in this context would be counter productive, as the Prosecution would need to expend considerable court time tendering such evidence during the witness examination-in-chief.
11

Prosecution 92ter Motion: RM516, 2 April 2012, paras.16-18. As per the procedure proposed by the Prosecution, the Defence is invited to identify specific portions of the transcript that it believes should be additionally admitted. The Prosecution will amend this application to include any such portions accordingly. 12 The extracted portions of the proffered Tolimir Testimony excludes about 19,000 words, eliminating approximately 63-76 pages from a total transcript of 315 pages (based on an estimate of 250 - 300 words per page). 13 RM65ter# 04038, RM65ter# 25940. 14 RM#04170, RM#19003, RM#25168, RM#25929, RM65ter# 25930. 15 RM#05407, RM#24767, RM65ter# 24880. 16 RM#05370, RM65ter# 19003, RMter# 25772, RMter# 25943. 17 RM65ter# 04178.

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D. 18.

Time Limitation Paragraph 23 of the Guidelines Submission sets out the Prosecutions position

with respect the length of examination-in-chief of Rule 92ter witnesses. 19. The Prosecution believes that it can reasonably conduct Col. Obradovi}s

direct examination under Rule 92ter within 1.5 hours. Given the centrality of his evidence to fundamental issues concerning the function and structure of the VRS Main Staff, as well as the importance to these proceedings of establishing clarity in these matters18, the Prosecution cannot reasonably lead his evidence within the 30 minutes envisioned by the Chamber.19 This is further exacerbated by the Guidelines stringent limitation of the number of exhibits that may be tendered through Rule 92ter witnesses. 20. In Tolimir, Col. Obradovi}s viva voce testimony required 5.75 hours to

present. As contemplated, the Rule 92ter presentation of Col. Obradovi}s evidence would save about 4.25 hours (more than a day in court). Limiting Col. Obradovi}s examination-in-chief to 30 minutes would render impossible the Prosecutions ability to proceed via Rule 92ter, substantially lengthening the presentation of evidence and/or undermining the efficiency of the proceedings.

See above, paras.5-6. The Prosecution notes that an estimate of 1.5 hours to lead Col. Obradovi}s evidence pursuant to Rule 92ter was provided in the Prosecution Witness List, filed 10 February 2012, p.336, based upon the anticipated tender of his transcript of evidence and associated exhibits.
19

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V. 21.

Relief Requested For the forgoing reasons, the Prosecution respectfully requests that the

Chamber grant the Prosecution leave to present the evidence of RM321 and its associated exhibits pursuant to Rule 92ter. Word Count: 1,804

Respectfully submitted,

Dermot Groome Senior Trial Attorney

Peter McCloskey Senior Trial Attorney

Dated this 12th day of April 2012 At The Hague, The Netherlands

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