1 Monday, 4 March 2002
2 [Open session]
3 --- Upon commencing at 9.03 a.m.
4 [The accused entered court]
5 JUDGE AGIUS: Have the case called [Realtime transcript read in
6 error "Tiff I have the case called"], please.
7 THE REGISTRAR: Good morning, Your Honours. This is case number
8 IT-99-36-T, the Prosecutor versus Radoslav Brdjanin and Momir Talic.
9 JUDGE AGIUS: I see that this is going to be a heated session,
10 because it says "tiff, I have the case called." So good morning, Mr.
11 Brdjanin. Can you hear me in a language that you can understand?
12 THE ACCUSED BRDJANIN: [Interpretation] Good morning, Your Honour.
13 Yes, I can.
14 JUDGE AGIUS: You may sit down, thank you.
15 General Talic, good morning to you. Can you hear me in a language
16 that you can understand?
17 THE ACCUSED TALIC: [Interpretation] Good morning, Your Honour.
18 Yes, I can hear in a language I understand.
19 JUDGE AGIUS: I think you may sit down. Appearances for the
21 MS. KORNER: Good morning, Your Honours. Joanna Korner plus
22 Denise Gustin for the Prosecution.
23 JUDGE AGIUS: Good morning, both of you.
24 And appearances for Mr. Brdjanin.
25 MR. ACKERMAN: Good morning, Your Honours. I'm John Ackerman, and
1 I appear today with Tania Radosavljevic. My co-counsel, Ms. Maglov, has
2 returned to Banja Luka to do some things there important to this case, and
3 she'll return when she gets those completed.
4 JUDGE AGIUS: I thank you, Mr. Ackerman and good morning to you.
5 Appearances for General Talic.
6 MS. FAUVEAU-IVANOVIC: [Interpretation] Good morning, Mr.
7 President, Your Honours. I am Natasha Fauveau-Ivanovic, assisted by
8 Fabien Masson, and I represent General Talic.
9 JUDGE AGIUS: Merci, we can start and [French phrase]
10 MS. FAUVEAU-IVANOVIC: [Interpretation] Good morning, to you, too.
11 MS. KORNER: Can I deal very swiftly. I know Mr. Ackerman wants
12 to raise a couple of matters -- with the matter that Your Honour raised at
13 the end of Friday's session, which related to the apparent difference
14 between the wording in document -- it's P227, I think. I'll just remind
15 myself -- which is the first set of Crisis Staff gazette.
16 JUDGE AGIUS: Yes.
17 MS. KORNER: Yes, 227. And Your Honour drew attention to the
18 difference in the wording.
19 JUDGE AGIUS: Yes, I remember. Yes.
20 MS. KORNER: "The decision shall come into force on the day it is
22 JUDGE AGIUS: Yes.
23 MS. KORNER: And on the next one: "The decision shall come into
24 effect on the day it is adopted."
25 Your Honour, after court, I had someone who reads and speaks the
1 Bosnian language read through the original. Your Honour, it can be dealt
2 with through the witness, if necessary. But the wording in the original
3 is identical.
4 JUDGE AGIUS: I see.
5 MS. KORNER: It would appear that one translator - and both
6 of these are final translations - has decided to use the word "issued,"
7 and the other "adopted." And that, I'm afraid, is one of the problems
8 about translation is that it's very much a question of what word the
9 translator decides to use. But in fact, in the original, it's identical,
10 the word used. But I imagine that Mr. Dzonlic can deal with that.
11 Your Honour, the second matter is Your Honour asked for whether we
12 had the statute of the Autonomous Region of Krajina. Your Honour, we do.
13 It's already been produced and admitted into evidence. It is Exhibit P80,
14 and it's in the first volume of the Banja Luka documents. If Your Honours
15 have it with you, it's divider 27, I think, or thereabouts.
16 JUDGE AGIUS: Mm-hm. I thank you, Ms. Korner.
17 Anything else? Mr. Ackerman?
18 MR. ACKERMAN: Your Honour, I have two matters, and I hope neither
19 will prolong -- delay our getting to the witness, because I don't intend
20 it to be that way. The first one is I was reminded, I think, by Ms.
21 Korner on Friday that time has passed when I told you I would file my
22 updated pre-trial brief.
23 JUDGE AGIUS: Yes.
24 MR. ACKERMAN: I have forgotten that. And I apologise.
25 JUDGE AGIUS: The Chamber hasn't.
1 MR. ACKERMAN: I'm sure you haven't, Your Honour.
2 There are two possibilities: One, the impetus for the order was a
3 motion filed by the Prosecutor, and it's the position of Ms. Korner that
4 she's really not interested in having me file that document with regard to
5 the law. I suspect, however, the Chamber might be, in spite of that. If
6 the Chamber is, I would then ask -- it will take me about two days full
7 time, I think, to do it, and I haven't found two days to do it yet.
8 JUDGE AGIUS: How long did it take you to file the motion on Rule
10 MR. ACKERMAN: I think I spent about six hours working on that
11 motion, Your Honour. But that was a matter of immediate moment in the
12 case, I thought. And the issue of what the law is regarding various
13 matters in this case really won't come into play until the motion for
14 judgement of acquittal at the close of the Prosecutor's evidence, I would
15 think. But in any event, I will do as the Chamber directs me to do,
16 although there's evidence that I didn't when you directed me last time.
17 If you would like me to -- well, what I would prefer to do, if you want me
18 to file it, is to do it after the March break, because I'll have that
19 period of time in which I can do it right and do it properly. If you want
20 me to do it more quickly than that, then I will, but other parts of my
21 duties may suffer as a result.
22 JUDGE AGIUS: Yes. Ms. Korner.
23 MS. KORNER: Your Honour, our interest, as Your Honour may recall,
24 was that we got rather more clarification of what the factual defence
25 was. I -- Mr. Ackerman, I have informed that -- I wouldn't say I wasn't
1 interested, but that I certainly wasn't pushing for any answer on the
2 law. I agree with Mr. Ackerman that it's not likely to arise until the
3 close of the Prosecution's case. So Your Honour, I remain entirely
4 neutral on this.
5 [Trial Chamber confers]
6 JUDGE AGIUS: A woman's heart is always much more tender than
7 mine. I was prepared to give you until the 3rd of April. They have
8 suggested the 10th of April. So Mr. Ackerman, you have an extension up to
9 the 10th of April. Thank you.
10 MR. ACKERMAN: Thank you, Your Honour.
11 The next matter is, this weekend, I was working on the Rule 92 bis
12 material with regard to the Sanski Most part of the case. And in that
13 connection, met with Madam Fauveau with regard to it, and there are some
14 problems with 92 bis which I feel I need guidance from the Chamber on -
15 not today - but I would like to tell you what I see as issues that I think
16 need to be resolved and we need to be given some guidance on. And that's
17 this. I've written down four things that I think are important.
18 Does a decision by Defence counsel not to request
19 cross-examination of a 92 bis witness mean that the Chamber will treat
20 that statement then as true? And if not, how will the Chamber assess the
21 weight of a 92 bis statement? If a 92 bis statement is merely cumulative
22 of other evidence, then why should it be admitted at all? And if it
23 relates to a subject that has been contested with other witnesses, live
24 witnesses, as to that subject, may a 92 bis statement be admitted at all?
25 In other words, if the issue is one that is being contested -- let me take
1 for instance, the conditions in a detention facility. There may have been
2 five witnesses who have come and testified about the conditions in that
3 facility. Each of the five have been cross-examined fairly vigorously
4 involving that issue. There are three 92 bis witnesses who say roughly
5 the same thing about the conditions in the camp. By not bringing them for
6 cross-examination, do we then admit that what they say in their statements
7 is correct or must we challenge their testimony the same way we've
8 challenged the witnesses who came here live?
9 And I think before decisions can be made about whether to accept a
10 Rule 92 bis statement without bringing the witness for cross-examination,
11 we need some guidance regarding those issues. And that might take you
12 some time to ponder among the three of you, but I think it's -- I think
13 it's important for us to know it.
14 JUDGE AGIUS: Yes, Ms. Korner.
15 MS. KORNER: Your Honour, I'm slightly taken by surprise --
16 although Mr. Ackerman mentioned it to me.
17 JUDGE AGIUS: [Microphone not activated]
18 MS. KORNER: I wonder if -- we seem to be putting off an awful lot
19 of things. We're not trying to keep a list of what we put off. But
20 whether Your Honours would -- if Your Honours want to hear argument or,
21 rather, would like assistance on that, whether Your Honours would delay
22 that to give us a chance to consider those points.
23 JUDGE AGIUS: [Microphone not activated]
24 THE INTERPRETER: Microphone, please, Your Honour.
25 JUDGE AGIUS: Yes, certainly, Ms. Korner.
1 MS. KORNER: I mean, the answer to the cumulative one, well, of
2 course, I think that was one of the points, because it's under Rule 92
3 bis (A)(i)(a), where it says: Factors in favour of admitting evidence
4 include, "is of a cumulative nature, in that other witnesses will give or
5 have given oral testimony of similar facts."
6 So the answer to that one would seem very quickly, yes, it is
8 As to the first question is one to treat it as true, and the
9 third, namely, what's the situation where there has been cross-examination
10 on a particular issue? Your Honour, there are certain provisions that I'm
11 aware of in English law that cover that type of situation, but I think I
12 would -- I'd prefer to have time to consider the matter.
13 JUDGE AGIUS: Certainly. The same applies to us. Obviously, this
14 is something that we'd need to discuss amongst ourselves as well.
15 What I suggest -- the approach I suggest is that when more or less
16 you're ready or you are in a position to discuss this, what I suggest is
17 that the two sides meet and present the Chamber with a joint document,
18 articulating the points that you need direction about. There may be, for
19 example, with regard to the cumulative nature, I think what you have
20 already referred to is in itself self-explanatory and maybe we'd drop that
21 with the question of whether this would be considered to be true or not.
22 I think the Trial Chamber will never give you a clear-cut answer "yes,"
23 because obviously it will depend from case to case and also on the
24 ensemble of -- but in any case, what I suggest is once you are in a
25 position to debate it or to discuss it, make submissions, I would suggest
1 you make -- draw up this joint document, submit it to the Trial Chamber.
2 In the meantime, we would have thought about the matter as well. And then
3 we will give it an hour or so to discuss it, if necessary, or else if we
4 are prepared to hand down a -- not necessarily a decision, but a directive
5 or direction, we will do that. I think that's --
6 MS. KORNER: Your Honour, I would hope we'd be able to reach
7 agreement on it.
8 JUDGE AGIUS: I think so, yes.
9 MS. KORNER: But if not, it may require oral argument and a ruling
10 by Your Honours.
11 Your Honour, as I say, there are a number of matters still
12 outstanding which at some stage I think we better find a morning to deal
14 JUDGE AGIUS: Yes. That's -- whenever you like. Whenever you
16 MS. KORNER: Yes.
17 JUDGE AGIUS: I mean, you are bringing the witnesses.
18 MS. KORNER: Yes.
19 JUDGE AGIUS: You know what the logistical problems are much more,
20 because obviously the Chamber is not kept informed of what is happening.
21 So any time you make a proper suggestion to that effect, we're open. We
22 will be forthcoming.
23 MS. KORNER: Well, at the moment, Your Honour, there's no question
24 in the near future. We have witnesses stacked up now because it's all
25 taking a lot longer than we anticipated originally. So I would say we've
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 got witnesses here until the middle of next week.
2 JUDGE AGIUS: Okay.
3 MR. ACKERMAN: I would suppose that it would make sense that this
4 be dealt with sooner rather than later, because someone is going to want
5 to know our view regarding the 92 bis witnesses from Sanski Most, rather
6 soon I would think, rather than two or three weeks from now.
7 JUDGE AGIUS: It's up to you, Mr. Ackerman and Ms. Korner. I
8 mean, very rightly, Ms. Korner said she's been taken by surprise, so I
9 would give her all the time she needs, definitely. And when she's ready,
10 I suppose she can sit down together with you and Madam Fauveau, see what's
11 left that really needs the intervention of the Trial Chamber, and we will
12 meet you on that -- on that issue the earliest possible opportunity.
13 MR. ACKERMAN: Your Honours, I don't know how to raise a new issue
14 without taking someone by surprise.
15 MS. KORNER: It wasn't a complaint.
16 JUDGE AGIUS: Yes, it's not a complaint. It's not a complaint.
17 It's a fair comment. The same applies for us. We were not prepared for
19 So can we call the witness. Let's have the witness inside the
20 courtroom and we'll continue with his cross-examination.
21 Do you anticipate to finish your cross-examination today, Mr.
23 MR. ACKERMAN: Yes, I think so.
24 [The witness entered court]
25 JUDGE AGIUS: Good morning to you, Mr. Dzonlic. You are going to
1 be asked once more to read the statement, to tell us the whole truth and
2 nothing but the truth. So please proceed.
3 THE WITNESS: [Interpretation] I solemnly declare that I will speak
4 the truth, the whole truth, and nothing but the truth.
5 WITNESS: AMIR DZONLIC [Resumed]
6 [Witness answered through interpreter]
7 JUDGE AGIUS: You may sit down, thank you.
8 Mr. Ackerman, you may proceed.
9 MR. ACKERMAN: Thank you, Your Honour.
10 Cross-examined by Mr. Ackerman: [Continued]
11 Q. Good morning, Mr. Dzonlic.
12 A. Good morning.
13 Q. I want to start this morning with kind of a digression, I
14 suppose. There was a time during your direct examination when you talked
15 about some guys who came from Belgrade with a whole bunch of money.
16 Do you recall that?
17 A. Yes, I do.
18 Q. And what was that money?
19 A. We called those Serbian dinars, and they became the currency.
20 They were new dinars, Serbian dinars, which came from Belgrade, and they
21 were used as the currency in Banja Luka.
22 Q. Well, what I don't understand is did these people just come hand
23 out money to people? Was it just free money?
24 A. Those people didn't hand out money. It wasn't them. They had
25 with them large amounts of that money. And as I said, they used it to pay
1 for things in the pizzeria, in the restaurant. They paid the expenses,
2 and they said that they had brought the money in a convoy of armoured
3 vehicles and that this was the kind of money that would be the currency
4 used in the future. And they said that the same kind of money -- that
5 they were taking the same sort of money to the Serbian Krajina, to Knin in
7 Q. Yes. You told us all those same things before. The question
8 was: Was it just free money? Did they just hand it out to people? I
9 think your answer is no.
10 A. I didn't say they handed out the money to people. I said they
11 used it to pay their expenses, to pay for drinks. They treated people and
12 paid in that money. They didn't give money, as such. I didn't say that.
13 Q. So the money was put into circulation in Banja Luka by these guys
14 doing a lot of drinking and eating a lot of pizzas and paying for it? Is
15 that how it got into circulation?
16 A. No, that's not the way it came into circulation. What I said was
17 that they used that money to pay for things, and they said that they used
18 transporters, armoured vehicles, to bring in huge amounts of that money.
19 I didn't see those vehicles myself, but they said that they were bringing
20 large amounts of money. I assumed they were taking that money to the
21 financial institutions because all the financial transactions went through
22 the SDK, the public accountancy service, and they took the money there, I
23 assume, and that's where it was stored.
24 Q. So you think it was just put into banks?
25 A. That service, the SDK, it's a service for payments. It's not a
1 bank. Payment settlement, that's what it does. And daily payments were
2 balanced there. And after a certain amount of time, certainly, that money
3 must have reached the banks.
4 Q. There were dinars in circulation in Banja Luka from World War II
5 up to that time, weren't there?
6 A. Yes, there were dinars.
7 Q. And what you're talking about is the new dinar -- what was called
8 the new dinar; correct?
9 A. Yes. It was now a new currency, a new form, a new appearance of
10 the bank notes, yes.
11 Q. And you know, do you not, that the new dinar did not come into
12 circulation until January 1, 1994?
13 A. I don't know that.
14 Q. Do you deny it?
15 A. That the new dinar entered into circulation in 1994? I said that
16 I didn't know that, the fact it had entered circulation in 1994.
17 Q. All right. When we broke on Friday, we were talking about the
18 relative competencies of the Executive Council of ARK, headed by Nikola
19 Erceg, and the Crisis Staff of ARK. And I had put to you the question
20 that since Mr. Erceg was the person who had appointed the Crisis Staff,
21 then he would necessarily have maintained superior position over the
22 Crisis Staff and could have removed anyone that he had appointed to that
23 Crisis Staff at any time.
24 The next place I want to direct your attention is to -- it's
25 clear, is it not, that Mr. Erceg remained in his position and continued to
1 operate in his position as president of the Executive Council of the
2 Autonomous Region of Krajina after the appointment of the Crisis Staff?
3 You agree with that, don't you?
4 A. Yes.
5 Q. You don't have your documents in front of you.
6 MR. ACKERMAN: Could I get Prosecution Exhibit 227 brought to the
7 witness, please.
8 THE WITNESS: [Interpretation] Your Honour, I do apologise. If I
9 may, before I answer any other question, may I say that as far as I was
10 able to understand, the last time I was examined, the statement that I
11 gave would be given to me here in front of me. So that was my
12 understanding, that I could have that statement here in front of me. Is
13 my understanding correct?
14 MR. ACKERMAN: Your Honour, I think he wants his written
15 statement. And I have no objection to that at all.
16 JUDGE AGIUS: Yes. Do you have any objection to that, Ms.
18 THE INTERPRETER: Microphone, please, Your Honour.
19 MS. KORNER: Your Honour, I think it's a difference of systems, of
20 course that's the --
21 JUDGE AGIUS: [Microphone not activated]
22 THE INTERPRETER: Microphone, Your Honour, please.
23 JUDGE AGIUS: Sorry about that. If you don't see any objection, I
24 will let him have the documents. Obviously, if you are going to refer to
25 any part of that document, he should -- in my jurisdiction, you would read
1 it out or you would let him see that particular part. So I have no
2 objection at all, and -- like we did with previous witnesses, in any case.
3 MS. KORNER: Your Honour, that's right. And of course I think
4 that's right. Last time he was given his statement.
5 JUDGE AGIUS: Yes, exactly.
6 MS. KORNER: Because he was asked about it.
7 JUDGE AGIUS: So please do.
8 And Mr. Dzonlic, the statement he made on the 5th, 6th and 7th of
9 May, 2001, and the other statement he made on the 11th and 12th of
10 October, 2000.
11 THE WITNESS: [Interpretation] Thank you.
12 MR. ACKERMAN:
13 Q. All right. Mr. Dzonlic, we are talking about number 5 in Exhibit
14 P227. Number 5 is a decree on organising enterprises from parts of the
15 work process; correct?
16 A. I apologise. I can't find it. I have another decision in front
17 of me.
18 Q. The decision is number 5, Exhibit P227, the decree that is signed
19 by Nikola Erceg, several articles.
20 A. Yes, yes.
21 Q. Okay. And that is dated 9 May 1992, is it not?
22 A. Yes.
23 Q. And that's four days after the date that Mr. Erceg appointed a
24 Crisis Staff; correct? The Crisis Staff was appointed at document number
25 2, decision number 2, on 5 May 1992; correct?
1 A. Yes.
2 Q. And this decree is signed by Nikola Erceg as president of the
3 Executive Council?
4 A. Yes.
5 Q. And the preamble indicates that it is pursuant to article 24,
6 section 2 of the ARK statute?
7 A. I can't find that decision. I don't have it. Just a moment,
8 please. Oh, yes. Yes, I see it. I see it. Yes. Yes. Yes, yes. I see
9 it now.
10 Q. And the preamble also indicates that there was a session of the
11 Executive Council on May 9th at which this decree was agreed upon.
12 A. Yes.
13 Q. I want you to go back one document to conclusion number 4.
14 A. Yes.
15 Q. This document refers, if you look at the preamble, to a meeting of
16 the Crisis Staff of the Autonomous Region of Krajina that was held on 8
17 May 1992.
18 A. Yes.
19 Q. And the preamble clearly indicates, does it not, that this was a
20 meeting of the Crisis Staff?
21 A. Yes.
22 Q. If you look at paragraph 1, at least according to the translation,
23 paragraph 1 refers to information that must be supplied to the war staff
24 of the Autonomous Region of Krajina. Is that what it says in B/C/S?
25 A. Yes.
1 Q. And if you look at number 3, it says that: "Presidents of the
2 National Defence Councils are to report to the war staff of the Autonomous
3 Region of Krajina"; correct?
4 A. Yes.
5 Q. Now, you've agreed that this was a meeting of the Crisis Staff.
6 And they're drawing conclusions about things that must be submitted to or
7 reported to the war staff. Do you believe that is a different body, the
8 war staff? Is it different from the Crisis Staff?
9 A. Yes.
10 Q. Now, if you look, then, Mr. Dzonlic, at paragraphs 5 and 6.
11 Paragraphs 5 and 6, the Crisis Staff is making requests; correct?
12 A. Yes.
13 Q. And paragraph 5, they're requesting certain activity on behalf of
14 the military?
15 A. Yes, yes.
16 Q. And paragraph 6, they're requesting certain activity on behalf of
17 the Assembly of the Serbian Republic of Bosnia-Herzegovina.
18 A. Yes.
19 Q. And the reason that the Crisis Staff is using the word "request"
20 is because they have no competence to order either the military or the
21 Assembly of the Serbian Republic of Bosnia-Herzegovina to do anything.
22 All they can do is to request. Correct?
23 A. Could I ask you to repeat that question again, please? I
25 Q. Yes, that's fine. The reason the word "request" --
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 MS. KORNER: I'm sorry. I'm going to object, Your Honour. I was
2 half minded to anyhow. It's pure comment. We can all read what the word
3 says. The witness can read what the word says. Whether or not they can
4 only request because they have no competence, that's a matter of comment.
5 This witness can't answer that question. All he can do is read it.
6 JUDGE AGIUS: I would allow [Microphone not activated]
7 THE INTERPRETER: Microphone, Your Honour.
8 JUDGE AGIUS: I would allow the question, Ms. Korner, also because
9 as I read through these documents, I think some sort of clarification from
10 the witness as to whether he sees a distinction between "it's hereby
11 requested" or "presidents of the National Council are to," --
12 "distribution is to be placed" -- "presidents of the ... are to supply."
13 There is a clear distinction when the Crisis Staff are directing the
14 National Defence Council or other institutions and the JNA and the
15 Assembly of the Serbian Republic of Bosnia and Herzegovina. There may be
16 a very simple answer to that, to tell you the truth, and I anticipate what
17 the answer could be. But I would rather have the witness say it.
18 MS. KORNER: Yes. Your Honour, I've no doubt that Mr. Ackerman is
19 perfectly right. I mean, one can read that oneself, and it would seem
20 common sense. What I'm querying is, is whether this witness is in a
21 position to do any more than all of us in reading this. That's my only
23 MR. ACKERMAN: Your Honour, I will accept the Prosecution's
24 statement that I'm perfectly right and move forward.
25 JUDGE AGIUS: Yes. Go ahead, Mr. Ackerman.
1 MR. ACKERMAN: Thank you, Your Honour.
2 Q. I'd like you to move forward now, Mr. Dzonlic, to conclusion
3 number 6. Let me know when you've found number 6.
4 A. I've found it.
5 Q. Again, this refers to the meeting of the Crisis Staff of the
6 Autonomous Region of Krajina. And it's the next day. It's now the 9th of
7 May. The last one referred to was the 8th of May, I believe. And on the
8 9th of May, they arrived at some additional conclusions. Correct?
9 A. Yes.
10 Q. They concluded that the war staff should have a press centre, in
11 paragraph 1; right?
12 A. Yes, correct.
13 Q. In the second part of paragraph 2, they concluded that only
14 persons loyal to SRBiH may make decisions on the implementation of general
15 mobilisation in public and economic organisations; correct?
16 A. Yes, correct.
17 Q. And then in the next paragraph, they talk about, "Decisions
18 adopted by the war staff of the Autonomous Region of Krajina are to be
19 strictly respected in all public and economic organisations." Yes?
20 A. Yes, that is correct that the decisions have to be respected by
21 all public and economic organisations, yes. And the word "strictly" is
22 there, must be strictly respected.
23 Q. Yes. And that paragraph refers to decisions of the war staff, as
24 opposed to conclusions of the Crisis Staff, does it not?
25 A. Those are decisions of the war staff of the autonomous region.
1 A. Yes.
2 Q. I'd like you to look now at paragraph 5. Paragraph 5 is
3 characterised as an appeal to the presidents of the National Defence
4 Councils to take immediate steps to disarm paramilitary formations and
5 individuals who illegally own weapons and ammunition." It refers to
6 illegal ownership of weapons and ammunition, does it not?
7 A. Yes.
8 Q. Now, I want to go back for a moment to paragraph 2, where we
9 talked about only persons loyal to the Serbian Republic of
10 Bosnia-Herzegovina. You know, do you not, that in the police ranks, a
11 loyalty oath was presented to police officers to state whether or not they
12 were loyal to the Serbian Republic of Bosnia-Herzegovina? You're familiar
13 with that loyalty oath. I think you've testified about it. Correct?
14 A. Yes, I am familiar with it.
15 Q. Do you know that in the police ranks, 70 per cent of Muslim police
16 signed the oath and 80 per cent of Croatian police signed the oath? Do
17 you believe that to be the case?
18 A. I don't know that, and I don't believe that to be the case in
19 Banja Luka because I know perhaps two policemen who are Muslims who signed
20 this loyalty oath. As for what you have just said, I don't know about
21 that, and I don't believe that those figures are right.
22 Q. Under the law, it was perfectly legal, was it not, for an
23 individual to own a hunting weapon if it was properly permitted -- a
24 permit had been properly issued and the law had been followed, it was
25 legal to own a hunting weapon, was it not?
1 A. Yes. Yes, it was legal.
2 Q. And when the appeal or the order or the request or the conclusion
3 is that individuals should turn in illegally owned weapons, that would not
4 have applied to their hunting weapons, would it, that were legally
6 A. Yes, that's right.
7 Q. Let's look at decision number 7 now. It's actually conclusion
8 number 7. And this is another meeting of the Crisis Staff held two days
9 later, on May 11th, is it not?
10 A. Yes, it is.
11 Q. And again, in paragraph 1, it speaks of the surrender of illegally
12 acquired weapons, doesn't it?
13 A. Yes.
14 Q. In paragraph 6, it talks about able-bodied men, aged between 18
15 and 55, who have fled from the ARK must immediately return. It's the
16 case, isn't it, that a number of Serbs fled from the ARK to avoid
18 JUDGE AGIUS: Mr. Ackerman, may I remind you that you put this
19 question to the witness at least twice last Friday. And he gave you an
21 MR. ACKERMAN: Well, that should be enough, then, Your Honour.
22 Q. Let's go -- let's go, Mr. Dzonlic, to the next document, number
23 8. The first thing I want to do is just kind of a review. If you go back
24 through the Crisis Staff meetings of 8 May, 9 May, and 11 May, those
25 documents are all conclusions, are they not?
1 A. Yes.
2 Q. If we go to the document at number 8, that's a document that's
3 called a "decision," isn't it?
4 A. Yes.
5 Q. And again, this is a document that is signed by Nikola Erceg?
6 A. Yes.
7 Q. President of the Executive Council. And what he's doing in that
8 document is appointing Mr. Brdjanin to yet another position; right?
9 A. In formal and legal terms, that is right. But in substance, I
10 don't think it was he that appoints him but the Crisis Staff. And in view
11 of the fact that it refers to the secretariat as a body of the Executive
12 Council, the decision is signed by the president of the Executive Council,
13 Mr. Nikola Erceg.
14 Q. You told us, I think the first day that you started testifying in
15 this case, that the Crisis Staff basically substituted itself for the
16 Assembly of ARK, and the executive of ARK was the Executive Council, and
17 that it was the job of the Executive Council to implement the conclusions
18 of the Crisis Staff. Isn't that what you said?
19 A. Yes.
20 Q. And Mr. Erceg, as a person who in the hierarchy of ARK was
21 superior to Mr. Brdjanin, would have had discretion regarding the
22 implementation of the conclusions entered into by the Crisis Staff,
23 wouldn't he?
24 A. Mr. Erceg was at the same time a member of the Crisis Staff, so
25 it's the same people are trying you and the same people are prosecuting
1 you. So you have the same person in several bodies. And so you see, that
2 is illustrative of the way they acted. At the same time, he was president
3 of the Executive Council and a member of the Crisis Staff.
4 MS. KORNER: Your Honour, I'm sorry, can I interrupt for a
5 moment? I missed the way the question was put. It was put: Mr. Erceg as
6 person who in the hierarchy of ARK was superior to Mr. Brdjanin. And --
7 now, that question was put, I think, on Friday, and I don't think it was
8 agreed to by Mr. Dzonlic, but it's now being asserted as a fact, is it?
9 JUDGE AGIUS: Well, I take it it's being put as a question. But
10 certainly what you're stating, that Mr. Dzonlic was very categoric about
11 the power or the status that Mr. Erceg had, yes, you are right. He
12 definitely was very categoric about that, which means that he can
13 definitely answer the question, and he was in the process of answering it.
14 MS. KORNER: Yes, exactly -- I'm sorry, Your Honour, but my
15 objection is, if one reads the question, it seems to be an assertion of
16 facts, which is not, in our submission, borne out by any evidence that's
17 been given in this case.
18 JUDGE AGIUS: Not yet. You are perfectly right, Ms. Korner. In
19 that regard, you are perfectly right.
20 So perhaps, Mr. Ackerman, could you rephrase the question, not
21 repeating what you have already asked from the witness last Friday,
22 because you put the question last Friday to have witness explain to you
23 how was it that Mr. Erceg was the president of the Executive Council and
24 as witness was putting it, he did not, however, have any executive power
25 which vested instead in the Crisis Staff. That is what he said last
1 time. And perhaps on the basis of that, since in reality if you look at
2 the -- at the hierarchy -- if you look at the hierarchy, then maybe you
3 are right. I mean, Mr. Erceg would appear on top of the list being the
4 president of the Executive Council. But in essence, what witness has said
5 -- has stated throughout, is that he had no power.
6 MR. ACKERMAN: Yes. Well, I can go at that a different way, Your
8 Q. Mr. Dzonlic, if you look at all of the Crisis Staff conclusions
9 that we've been talking about this morning, those all came from a session
10 of the Crisis Staff held on different days. That's true, is it not?
11 A. Yes, it's true.
12 Q. And I think you told us you don't know who the members of the
13 Executive Council were. You just know that Nikola Erceg was its
15 A. Yes.
16 Q. And in line with what you told us about the Crisis Staff
17 concluding and the Executive Council implementing those conclusions as
18 executive decisions, I'd like you to look at conclusion number 9. Have
19 you found that?
20 A. Yes, I've found it.
21 Q. And paragraph 8 of that conclusion, which comes from a meeting of
22 the Crisis Staff on 13 May, says that "Radoslav Brdjanin is to be
23 appointed secretary of the secretariat for traffic and communications,
24 construction, and spatial planning, and the fund for highways and regional
25 roads," the important language there being "is to be appointed." In other
1 words, it carries the implication of a recommendation, doesn't it?
2 A. Yes, yes, that is right.
3 Q. And if you look, then, at the decision of Nikola Erceg of the same
4 day, he did not completely carry out the conclusion of the Crisis Staff,
5 but, using his discretion, made a slightly different decision, didn't he?
6 A. I don't see.
7 Q. Okay. Let me direct your attention --
8 A. Yes, I see the decisions. I was just going to say the following:
9 Both decisions, or rather, the decision and the conclusion were adopted on
10 the same day, the 13th of May. We don't know which came first, the
11 decision or the conclusion. In my judgement, the decision came first,
12 because he was appointed acting secretary. And after that, the conclusion
13 was adopted to appoint him secretary. So I think that is what it is.
14 Q. Well, if you're correct that what the Executive Council does is
15 implement the conclusions of the Crisis Staff, then it should be pretty
16 clear that it's the decision that came second and that Mr. Erceg appointed
17 him as acting secretary, rather than as secretary, as the Crisis Staff
19 MS. KORNER: Your Honour, I should point out they in fact have
20 been copied back to front, because if you look at the numbers, Mr.
21 Ackerman is correct. I don't want anybody to go from a false path. The
22 date of the document -- the number of the document, of the conclusions, is
23 03315/92. The Erceg one is 03316. I'm afraid they were just copied in
24 reverse order.
25 JUDGE AGIUS: Yes, Mr. Dzonlic. You have heard what Ms. Korner
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 pointed out, namely, that following the official number given by the
2 authorities in the region at the time, it seems that the document
3 containing the conclusions reached by the Crisis Staff in the meeting of
4 the 13th of May, 1992 preceded the decision signed by Mr. Erceg. And on
5 the basis of that, it was pointed out to you by Mr. Ackerman that what
6 this means is that while the Crisis Staff recommended the appointment of
7 Mr. Brdjanin as secretary of whatever it was, Nikola Erceg, president of
8 the Executive Council, only appointed him as an acting secretary of the
9 same section or transport and communications, or whatever it was. What do
10 you have to state in this regard?
11 THE WITNESS: [Interpretation] It's quite clear. I wish to say
12 that the Crisis Staff made a recommendation pursuant to item 8 that
13 Radoslav Brdjanin is to be appointed secretary of the secretariat, and the
14 fact is that the president of the Executive Council, Nikola Erceg,
15 appointed him acting secretary and not secretary -- he appointed him
16 acting secretary, which in my view is only a technical solution, an
17 interim solution. There is no doubt that as acting secretary, he had the
18 same authority that a secretary would have.
19 JUDGE AGIUS: Yes. Thank you.
20 Mr. Ackerman, you may proceed.
21 MR. ACKERMAN:
22 Q. Can I take it that Mr. Erceg could also remove him from this
23 position as acting secretary when he decided to appoint a permanent
25 JUDGE AGIUS: You answer that question only if you are in a
1 position to answer it.
2 MR. ACKERMAN:
3 Q. If you know.
4 JUDGE AGIUS: Because it involves your knowledge or you knowing
5 what the powers of Mr. Erceg as president of the Executive Council were.
6 If you're not quite sure, you know what to do.
7 A. In my opinion, Mr. Nikola Erceg, as president of the Executive
8 Council, could replace his secretaries, the secretaries of the
9 secretariat, whenever he wanted, because he was the president of the
10 Executive Council.
11 MR. ACKERMAN:
12 Q. Could I ask you to look now at paragraph 6 of document number 9.
13 That's again conclusions of the ARK Crisis Staff of 13 May. It's the one
14 we've been talking about with paragraph 8. We're going to move up to
15 paragraph 6 now.
16 It talks about certificates issued by the Crisis Staff to
17 individuals who are moving out of the Autonomous Region of Krajina. And
18 says, "those certificates shall also be valid for their belongings,
19 household items, furniture, and motor vehicles."
20 That was in fact the case. People were permitted to take
21 household items, furniture, and motor vehicles with them when they left
22 the area, weren't they?
23 A. Yes.
24 Q. And these travel certificates were issued to people from all three
25 ethnicities: to Serb, Muslims, and Croats; correct?
1 A. I don't know whether the travel certificates were issued to
2 citizens of all ethnic groups. As far as I know, I do not know any
3 citizen of Serb ethnicity who needed a travel certificate in order to move
4 away. I even think that citizens of Serb nationality who wanted to leave
5 were not to go and ask for travel certificates. They left in other ways,
6 not by the same procedure that we have already explained.
7 MR. ACKERMAN: Your Honour, I need the witness to be provided with
8 a couple of documents, P295 and P242.
9 Your Honour, I seem to have misplaced my own copy of P242. I
10 wonder if maybe the Prosecution has an extra copy I could refer to or how
11 we might deal with this.
12 JUDGE AGIUS: [Microphone not activated].
13 MR. ACKERMAN: The witness has it. I just don't have one to refer
14 to myself. I apparently left it in my --
15 JUDGE AGIUS: [Microphone not activated]
16 MR. ACKERMAN: Well, and as usual, it's not even the right
17 document. So --
18 JUDGE AGIUS: [Microphone not activated] I was under the
19 impression that last time you --
20 THE INTERPRETER: Microphone, please, Your Honour.
21 JUDGE AGIUS: I am under the impression that last Friday you
22 referred to this document, only to find out that it was not the document
23 you wanted.
24 MR. ACKERMAN: I did.
25 JUDGE AGIUS: And then you told us you wanted another document,
1 but I can't remember which other document you told us you wanted.
2 MR. ACKERMAN: Well, I can't either.
3 Maybe we could take the morning break now and I could get myself
4 better organised? Would that make sense?
5 JUDGE AGIUS: It would make sense to me, too.
6 Ms. Korner?
7 MS. KORNER: No objection, Your Honour.
8 JUDGE AGIUS: Okay. So we can break now. In the meantime, Mr.
9 Ackerman, please could you tell us which other documents you will be
10 making use of? P295, as I understand, and what else?
11 MR. ACKERMAN: Just that, and this one that I am not able to find,
12 and I think P43.
13 JUDGE AGIUS: P43?
14 MR. ACKERMAN: Yes.
15 JUDGE AGIUS: Okay. So we'll break for 25 minutes, resuming at
16 twenty to 11.00. Twenty to 11.00. Thank you.
17 --- Recess taken at 10.12 a.m.
18 --- On resuming at 10.51 a.m.
19 JUDGE AGIUS: Yes. We gave you a little bit more time,
20 Mr. Ackerman. Make sure you've got the numbers right this time.
21 Could you bring in the witness, please.
22 MR. ACKERMAN: Your Honour, I'd like the witness to have P43,
23 P247, and the one we were previously referring to, which I think is P295
24 and P227.
25 JUDGE AGIUS: Before you proceed, Mr. Ackerman, and what I'm going
1 to tell you applies to everyone. I've been asked by the interpreters -
2 very rightly so, because I apologise, but we always let them down, and
3 this is very important for them - to ask you to slow down. And indeed you
4 were actually firing questions a little bit too fast and too soon after
5 the witness was finishing giving you the answer. So please slow down a
6 little bit. And always allow a little bit of a pause between his reply
7 and your next question. I thank you. Also, we are advised not to speak
8 at the same time. And we'll try to be more educated. Thank you.
9 Mr. Ackerman.
10 MR. ACKERMAN: Thank you, Your Honour. Trying get a bunch of
11 lawyers not to speak at the same time may be an impossible task. We can
13 Q. Mr. Dzonlic, you will have been handed to you document P43, which
14 is an extract from the minutes of a session of the assembly of the
15 Autonomous Region of Krajina of 17 July 1992. Do you have that document?
16 A. Yes, I do. It is the 18th assembly session, as far as I can see.
17 Q. It is indeed. The first thing I'll draw your attention to is that
18 the document indicates that the assembly was presided over -- the session
19 was presided over by Vojo Kupresanin, who chaired its work. Correct?
20 A. Yes, correct.
21 Q. And if you go to item 2 of this extract, what I really want to
22 point out was that proposals were presented to the assembly. Following
23 the proposal, there was a debate in which members took part. And then a
24 conclusion was adopted. And you'll see that in item 2 and item 3 and item
25 4. Correct?
1 A. Yes.
2 Q. Presumably, once the assembly adopted these conclusions, they were
3 then prepared formally for the signature of Mr. Kupresanin, who was
4 president of the assembly.
5 A. Yes.
6 Q. And the Crisis Staff would have functioned much the same way.
7 There would have been proposals with debates, with votes, and then
8 whatever the conclusion of the members of the Crisis Staff were, that
9 would be formally prepared for the signature of the president. Correct?
10 A. That's how it should be, yes.
11 Q. Yes. If you look at item 4, item 4 was a -- an agenda item
12 regarding verification of decisions, conclusions adopted by the Crisis
13 Staff and the War Presidency of the Autonomous Region of Krajina. And
14 with regard to that, there was a debate. Several members took part. And
15 then those decisions/conclusions were adopted, were they not?
16 A. Yes, that is right.
17 Q. If you know, can you tell us why the ARK Assembly was involved in
18 verifying decisions and conclusions of the Crisis Staff and the War
19 Presidency? Why did that happen? Do you know?
20 A. As far as I know, the decisions have to be verified by the
21 assembly. All decisions of bodies which perform the functions of the
22 assembly are duty-bound to be submitted to the assembly for verification,
23 the assembly being the highest level body, the legislative body which
24 verifies those decisions.
25 Q. Could we go now to a document which you have before you. It's
1 P247. We saw it, I think, on Friday for the first time. I want to first
2 draw your attention to paragraph 3A. Let me draw your attention to
3 something else first. You had before you that -- it's P227, the gazette
4 from ARK. And the last document in that gazette is decision number 28,
5 right at the very end, a decision signed by Nikola Erceg. And the only
6 thing I want to draw your attention to is that that decision was dated 5
7 June of 1992. Do you agree with me about that?
8 A. I apologise. I don't know exactly which document you are
9 referring to.
10 Q. It's at the very end of that gazette, number 28. It's the last
11 item in that gazette.
12 A. Could you at least give me the number, please.
13 Q. 28.
14 A. The number of the decision.
15 Q. 28.
16 A. Dated the 4th of June, 1992, on the appointment of the acting
17 director of the radio television?
18 Q. No. It's the one right after that. There are two 28s, I guess.
19 But the one right after that, the second 28, is a decision signed by
20 Nikola Erceg.
21 A. On the rates of special payment to the automobile association?
22 Q. That's it. All I'm really interested in is the date of that
23 decision. 5 June, 1992; correct?
24 A. 5 June 1992, yes.
25 Q. Now go, please, to Exhibit P247. And that exhibit is dated 14
1 June 1992, is it not? Just nine days later.
2 A. The intermunicipality agreement?
3 Q. That's it.
4 A. Is that the one?
5 Q. Yes, sir.
6 A. The date is the 14th of June, 1992, yes.
7 Q. Which is about nine days after the last decision from the
8 Autonomous Region of Krajina that appears in that gazette; correct?
9 A. Yes.
10 Q. I want to draw your attention to -- on that document paragraph 3A.
11 It says: "We think that the work of the Crisis Staff of the Autonomous
12 Region of Krajina under wartime circumstances should be much more serious
13 and that its politicians and experts should pay more attention to the
14 problems in all constituent municipalities of the Autonomous Region of
15 Krajina." That's what it says, isn't it?
16 A. Yes. I see it. That's what it says.
17 Q. Yes. And this is a document from representatives of Srpska Krupa,
18 Bosanski Petrovac, Bosanski Novi, Bosanska Dubica, Prijedor, Bosanski
19 Most; correct?
20 A. Yes. Only I don't know of this town called Srpska Krupa. I know
21 of a town called Bosanska Krupa. What about -- but Srpska Krupa, I don't
22 know. And all the other towns, I am aware of.
23 Q. It's the same place. It's just people from Bosanska Krupa
24 deciding it ought to be called Srpska Krupa, I'm sure.
25 If you look at paragraph B, 3B, the document says: "We propose
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 that Vojo Kupresanin be appointed president of the Crisis Staff of the
2 Autonomous Region of Krajina, given the position he currently occupies as
3 president of the Assembly of the Autonomous Region of Krajina."
4 And then it has some words, and then it can't be translated,
5 apparently. Do you see that?
6 A. Yes, I do.
7 Q. So this group from these municipalities apparently are wanting
8 Kupresanin to replace Brdjanin as president of the Crisis Staff; correct?
9 A. I wouldn't say that he should be replaced. They're just
10 suggesting that he should be the president.
11 Q. Well, if Kupresanin is made the president, then Brdjanin probably
12 wouldn't be the president any longer; correct?
13 A. Well, yes, if that were to be so, yes.
14 Q. If you look at paragraph F, it begins with these words: "The
15 Serbian Democratic Party must make itself felt." And then the next
16 paragraph: "Accordingly, personnel changes should be made in the Crisis
17 Staff of the Autonomous Region of Krajina and with a view to urgently
18 breaking with individuals who have decided to obstruct the work of the
19 Serbian Democratic Party in the Autonomous Region of Krajina and to
20 question the lofty goals which have galvanised the Serbian people."
21 So it appears, does it not, that they are wanting the leadership
22 of the Crisis Staff to be changed to Vojo Kupresanin because the current
23 leadership of the Crisis Staff is not implementing the lofty goals of the
24 SDS properly, but obstructing the work of the SDS? Isn't that what it's
25 -- what's being said there?
1 A. In my view, there was political struggle within factions of the
2 SDS, and this group of people wanted this, this group that submitted this
3 request. They had such a political stance, and they wanted Mr. Kupresanin
4 to take over, rather than Mr. Brdjanin. And I think that this is evidence
5 of political struggle.
6 Q. Look now, will you please, at document P295. Now, this document
7 is the Official Gazette of the Autonomous Region of Krajina, is it not?
8 A. Yes. Number 4.
9 Q. Issue number 4, yes. And the first decision that appears is
10 number 48, dated 9 June 1992.
11 A. Yes.
12 Q. Issued while Brdjanin was president. And this document is five
13 days prior to this meeting of the Sanska Una people that we were just
14 referring to, is it not?
15 A. Yes.
16 Q. Now, what I want you to do, Mr. Dzonlic, just to save time, if
17 you'd look at the very end of this gazette, you will find that the last
18 decision is 1 August 1992, dated 1 August, 1992, signed by Cedo Aleksic,
19 MD. And what I'm really interested in is the date of 1 August 1992.
20 A. Yes, I see that. I see the date, the 1st of August.
21 Q. Yes. If you just look, then, from item number 48, the decision of
22 9 June 1992, through the rest of that gazette. Tell us if you find any
23 other conclusion, decision, order, or document of any kind authored by
24 Mr. Brdjanin, or that his name appears as president or anything of that
1 A. No, I don't see that. I don't see a single decision signed by
3 Q. Yes. And with that, I thank you. And that's all the questions I
4 have of you.
5 MS. KORNER: Your Honour, before --
6 JUDGE AGIUS: Yes.
7 MS. KORNER: Before Madam Fauveau starts her cross-examination,
8 I'd hate to, as it were, go back to a theme that I raised at the end of
9 the last cross-examination. Whatever Mr. Ackerman may think of the rule
10 at the moment, the rule is, as we discussed, that he should put his case.
11 And on Friday, he cross-examined the witness about the speeches of
12 Mr. Brdjanin on two bases. One is that he didn't hear them himself, or
13 alternatively, that they were in 1993 and part of a witness statement
14 which, in fact, was not adhered to by the witness was read to him. But
15 that's not the point.
16 If the case is that Mr. Brdjanin made those speeches but that they
17 weren't heard by this gentleman or they were made in 1993 but not 1992,
18 then fine. He's put that case. But if his case is, as I anticipate, that
19 they were never said, those words in particular were never said by Mr.
20 Brdjanin, then exactly the same applies to this witness as to the previous
21 witness. It must be put.
22 JUDGE AGIUS: Yes. Mr. Ackerman, this is always without prejudice
23 to the matters you raised in your motion regarding the applicability or
24 the legality of the specific Rule, under Rule 90 that we will discuss
25 later on. But for the time being, what do you have to state in relation
1 to what Ms. Korner had just pointed out?
2 MR. ACKERMAN: Only that I have not forgotten to ask the witness
3 any questions that I wanted to ask him. I've completed my
5 MS. KORNER: Well, in that case, Your Honour, I am taking it, as I
6 am entitled to, that there is no challenge to what this witness said he
7 heard Mr. Brdjanin say, other than the fact it may have been said in 1993
8 or it was not heard by this witness.
9 JUDGE AGIUS: Yes.
10 MS. KORNER: But the actual words were used.
11 JUDGE AGIUS: Yes. I think we can proceed with the
12 cross-examination by the Defence team for General Talic. Madam Fauveau.
13 Now, Mr. Dzonlic, as you may have heard me say already, you are
14 now going to be cross-examined by a different Defence team, that's the
15 Defence team for General Talic.
16 Madam Fauveau, may I ask you if you anticipate to finish your
17 cross-examination today?
18 MS. FAUVEAU-IVANOVIC: [Interpretation] I hope so, Mr. President.
19 But before beginning, I should like to ask for counsel from you. As Madam
20 Korner has just said, do I have to put the same question as Mr. Ackerman,
21 or will it otherwise be considered as -- that I do not contest something
22 if I don't do that?
23 JUDGE AGIUS: I would rather not answer the question myself,
24 because the matter has been raised officially and formally by Mr.
25 Ackerman. And later on it will be decided.
1 In the meantime --
2 MS. KORNER: Your Honour, for my purposes, if Madam Fauveau takes
3 the same view or rather, her case is identical to that put forward by Mr.
4 Brdjanin on certain matters -- although I'm at a loss at the moment to
5 know really what case has been put -- but then all she has to do is say
6 she adopts this cross-examination, on whatever points it is, and I will
7 take it that she also contests it.
8 Your Honour, while I'm -- and I'm sorry, Madam Fauveau -- Your
9 Honour, I'm somewhat concerned about that, I have to say, about
10 Mr. Ackerman's attitude.
11 JUDGE AGIUS: You're not the only one.
12 MS. KORNER: The real difficulty is this: As Your Honours knows,
13 I have no doubt at all for having heard the earlier cross-examination that
14 Mr. Brdjanin's case on these topics is "I never said those words." And
15 Mr. Ackerman is declining, as far as I can see, to put it to the witness.
16 And Your Honour, the difficulties is knowing what sanction Your Honour
17 has, if it turns out, should Mr. Brdjanin give evidence, that he does deny
18 that and it's not been put. However ...
19 MR. ACKERMAN: Your Honour, I don't believe that I can violate
20 Rule 97 without being subjected to very severe sanctions, and I will not
21 violate Rule 97, regardless of what Rule 90(H)(iii) seems to say. I think
22 Rule 97 is much more binding upon me.
23 JUDGE AGIUS: Mr. Ackerman, I mean, why are you bringing into play
24 Rule 97, to be frank with you, in relation, when we are speaking of the
25 applicability of Rule 90(H)(ii), I don't know. Because there may be
1 instances where, in trying to do what you are required by 90(H), you may
2 internally feel that you -- there is a chance of revealing what your
3 client may have told you in confidence. But not necessarily so. I mean,
4 you don't have to reveal anything of the sort. What Article -- what Rule
5 90(H)(ii) says is that in the cross-examination of a witness who is able
6 to give evidence relevant to the case for the cross-examining party - so
7 that's requirement number 1, the ability to give evidence relevant to the
8 case for the cross-examining party - counsel shall put to that witness the
9 nature of the case for that party for whom that counsel appears which is
10 in contradiction of the evidence given by the witness.
11 What you are required to do under this section is to show to the
12 witness himself in the course of the cross-examination that either before
13 he makes a statement in reply to your question, or during or after, that
14 you have -- that the nature of the case of the person you are representing
15 in this courtroom is in contradiction or appears to be in contradiction to
16 what the witness is stating. This is the crux of the matter. You don't
17 have to say, "It's because my client told me so." You are not requested
18 to make affirmations as to what your client may have told you in
19 confidence. Certainly not. But if you have reason to believe that within
20 the material that you have in the defence of your client, you have
21 material which is in contradiction to what the witness is stating, then in
22 terms of Rule 90(H)(ii), you are bound to let that witness know or face
23 the witness with that fact.
24 I mean, why you put in play Rule 97 as if it is -- as if it is in
25 contradiction or as if it is transdiametrically opposed to Article -- to
1 Rule 90(H), I don't know. Because Rule 90(H) definitely does not nullify
2 the effects of Rule 97.
3 MS. KORNER: Your Honour, I absolutely agree with Your Honour.
4 It's faux naivete to say that this rule has nothing to do with that one.
5 Your Honour, at the moment, my concern is, whatever Mr. Ackerman may think
6 of this Rule, Your Honours made a ruling and Mr. Ackerman is not abiding
7 by it. We can -- and I think if this is going to go on, because the next
8 witness, I anticipate some of the evidence is also going to be strongly
10 JUDGE AGIUS: The next witness is going to be very difficult.
11 MS. KORNER: Exactly. And if Mr. Ackerman is not prepared to put
12 his case --
13 JUDGE AGIUS: Madam Korner, I have read his statement. We are
14 going to have a difficult session. I anticipate it.
15 MS. KORNER: Well, I'm not quite clear what Your Honour is
16 referring to there. But nonetheless, in respect of Mr. Brdjanin's case,
17 if Mr. Ackerman is not going to do it, and is in our submission flouting
18 Your Honour's ruling, oral ruling, given then I think before I call the
19 next witness, we better deal with his motion, deal with it on an oral
21 JUDGE AGIUS: On the other hand, I'm not going to press it any
22 further at this stage because in relation to the one or two questions that
23 you mentioned, because I am positive that if -- unless my memory is
24 playing tricks on me, but I am pretty sure that at a certain point in time
25 during one of last week's sittings, Mr. Ackerman did put it to a witness
1 that Mr. Brdjanin actually never said those words. And I can remember Mr.
2 Dzonlic replying that -- answering, "No, I heard him personally say those
4 MS. KORNER: Your Honour, that's not actually what was put. I've
5 got the LiveNote here. It was Friday.
6 JUDGE AGIUS: No. That was not Friday. This was earlier.
7 MS. KORNER: Well, this was the first opportunity he did to
8 cross-examine on it. I think you're thinking about the previous witness,
9 about two witnesses ago.
10 JUDGE AGIUS: No, no, this is Mr. Dzonlic.
11 What do you have by way of a transcript?
12 MS. KORNER: Your Honour, this is page 2553 of our version of
13 LiveNote on Friday.
14 "Q. You told us you heard Mr. Brdjanin make certain
15 statements on the radio in 1991 and 1992, statements
16 about Muslim people, about the numbers who should remain
17 in the Banja Luka region. You're familiar with the
18 statements I am referring, to are you not?
19 A. Yes.
20 Q. Would you like to change your testimony about that and
21 agree with me first of all that you didn't hear those
22 statements but was simply told that he had made those
23 statements. In other words, you didn't hear them direct
24 but -- "
25 JUDGE AGIUS: That's what I remember very vividly.
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 MS. KORNER: Yes. But it's not the same thing. "Other people
2 told you about him making those statements."
3 JUDGE AGIUS: But I think he pressed the questions further.
4 MS. KORNER: I'm going to, Your Honour.
5 "No, I wouldn't like to change my testimony and I
6 cannot agree with you that I heard it from someone
8 Q. Would you like to change your testimony and
9 agree with me that it was only in 1993 that you heard --
10 you directly heard, Mr. Brdjanin or someone told you that
11 they had heard Mr. Brdjanin say certain things on the
12 radio? In other words, the suggestion is that even if
13 you did hear it -- I mean, it was in 1993. And then I
14 didn't say, when I heard him, I didn't say that he said
15 such and such a thing in 1992, and in 1993, someone else.
16 When I was speaking, I think we were talking about what
17 he said in 1991. And in 1992 and 1993, as far as I can
18 remember, in the statement I made."
19 And so on and so forth. And then what was read to him was part of
20 a witness statement - not adhered to by the witness when he gave evidence,
21 I may add, but he didn't at least identify that - about Mr. Brdjanin being
22 very frequently on the radio, TV, and in the newspapers, especially in
23 1993. Before that, he was obviously not considered respectable as a
24 spokesperson of the SDS. In 1991 and 1992, he was rarely interviewed.
25 And after a number of questions about that, he said finally, the
1 witness: "I can't say, I can't say that I disagree -- agree or disagree
2 because I'm not qualified to speak about the media. All I can say is that
3 I personally heard him on the media. Not once but several times, I heard
5 Now, Your Honour, the Rule requires, in our submission, if the
6 case for Mr. Brdjanin is that he never used those words in 1991, that he
7 should put it.
8 JUDGE AGIUS: Yes, definitely.
9 Always without prejudice, because I think we can bring this to a
10 conclusion. I mean, always without prejudice to your motion, which will
11 be debated and decided upon later on. But I think at this present moment,
12 faced with the - call it whatever you like - objection, remark, or issue
13 that has been raised by Ms. Korner, and given also the possibility that
14 this Trial Chamber later on may -- I'm not saying that we will -- but this
15 Trial Chamber might actually come to a conclusion adverse to what you
16 contend or what you expect by -- or what you request in your motion, Mr.
17 Ackerman. So I would suggest to you at this point in time to play it
18 safe. If after having read -- after having heard what Ms. Ackerman [sic]
19 read out from last Friday's transcript -- Ms. Korner -- Ms. Korner read
20 out from last Friday's transcript, it appears to you that it is wise to
21 put it to the witness that your client never uttered the words that he
22 mentioned in his testimony, I would do it now. Always without prejudice
23 to your motion, as stated earlier.
24 Why risk your motion being rejected and then being faced with a
25 situation which can no longer be remedied?
1 MR. ACKERMAN: Your Honour, this -- this matter has become popular
2 in the Chambers that are in trial. Apparently after Ms. Korner raised it,
3 it was raised both in the Bosanski Samac trial and in the Galic trial.
4 It's my understanding- and I haven't - I haven't actually looked at with
5 any detail the transcripts - but it's my understanding in both the Galic
6 and the Bosanski Samac trial, the Chambers ruled that failure to put your
7 case to the witness does not preclude you in any way from contesting the
8 issue when it comes time to put on your own case. And in addition, I
9 can't imagine how I could contest whether or not my client made certain
10 statements without revealing what he has told me about whether or not he
11 made those statements, and I don't think I can do that without his consent
12 pursuant to Rule 97 or pursuant to the ethics of my profession, which I
13 take very seriously. And so even though you have invited me to do that,
14 Your Honour, I must respectfully decline, pursuant to the ethics that bind
15 me and the plain language of Rule 97.
16 JUDGE AGIUS: Okay.
17 Madam Fauveau, you may commence your cross-examination.
18 MS. FAUVEAU-IVANOVIC: [Interpretation] Before beginning, I should
19 like to inform the Chamber that I adopt the cross-examination of Mr.
20 Ackerman, particularly where he contests the statement of the witness
21 regarding the consequences of non-response to the mobilisation call by Serb
23 Cross-examined by Ms. Fauveau-Ivanovic:
24 Q. [Interpretation] Mr. Dzonlic, you told us that you were a member
25 of the War Presidency of Banja Luka that was based in Zenica, Travnik,
1 and Sanski Most. Is that correct?
2 A. Yes, that is correct.
3 Q. Could you tell us the composition of that War Presidency.
4 A. The president of the War Presidency was, for a while, Ibrahim
5 Robovic. Members were Husein Basic, Atko; Zujic Emir, Novalija Amir, --
6 no, Sorry. He was appointed instead of Robovic to the position of
7 president in 1993, I think it was, towards the end of 1993. Then there
8 was Saric Imran, myself, and a lady, Jadranka. I don't know her surname.
9 It was not the same -- the composition was not always the same. People
10 were replaced depending on how satisfactory their work was. I can't
11 remember any more names. Oh, yes, I do remember one more. Safedin
12 Begovic. He, too, was a member of the War Presidency for a while.
13 Q. Were all the members of this presidency of Muslim ethnicity?
14 A. No. There was this lady, and she was by nationality a Croat.
15 Q. So except this lady, all the other members were Muslim?
16 A. [No interpretation]
17 Q. When was this War Presidency established?
18 A. I arrived in Travnik on the 26th of February, 1993. And at that
19 time, the presidency had already been formed, and it had its headquarters
20 in Zenica. So I don't know exactly the date when the first presidency was
21 set up, but it performed its functions right through until the Dayton
22 Accords at the end of 1995, so that I assume that it may have been formed
23 already in April 1992, or rather, 1993. No, sorry, I apologise. No. I
24 arrived on the 26th of February, 1993, in Travnik, and the presidency had
25 already been formed, and I don't know exactly the date of the
1 establishment of that presidency because I was not a member of that first
2 presidency. I became a member of the presidency after maybe half a year.
3 So it could be in -- I became a member in July or August 1993 of that
5 Q. Could you tell us what were the tasks and functions of that War
7 A. It's very difficult for me to specify all the duties of the War
8 Presidency, but I could tell you that the main duty of the War Presidency,
9 in view of the fact that it existed ex-territorially, was to rally all
10 citizens of Banja Luka municipality that had been expelled and who were
11 residing in the territory of Central Bosnia, that is, Zenica, Travnik.
12 Q. You also told us that you were the secretary of the Assembly of
13 the region of Banja Luka, which was also based in Travnik. What were the
14 functions of that assembly?
15 A. I was secretary of the Assembly of the district of Banja Luka.
16 That was temporarily based in Travnik. The district were the wartime
17 schedule of organisation of Bosnia-Herzegovina. And the assembly were the
18 legislative body of the district, that is, the functions of the assembly
19 were performed by the War Presidency of the district, and there was an
20 executive body, an executive board as an executive body. I think that I
21 cannot list all the duties of that body because there was a decree on the
22 formation of the district, and the main task and aim and meaning was to
23 take care of the people that had been expelled, to organise them as best
24 as they could, to keep a record of the displaced persons. Those were the
25 main tasks.
1 Q. You were also a judge of the military tribunal in Travnik in
3 A. Yes. I think it was from the 30th of March until, I think, the
4 30th of September. I was a judge of the district court of the Travnik
5 district. And when later on I was relieved of my judicial duties and
6 appointed to the position of secretary of the Assembly of Banja Luka
7 district, based in Travnik.
8 Q. Could you tell us whether the court in which you worked was a
9 civil or a military court?
10 A. It was a district military court.
11 Q. So it was a military tribunal, was it not?
12 A. Yes, a military tribunal.
13 Q. Could you tell us, attached to which army was this tribunal?
14 A. It was not formed within the scope of the army. The military
15 court was formed by the district of Travnik. The district of Travnik.
16 And it was not formed by the army. It was formed by the Travnik district
17 on the basis of a decree on the formation of a district as the wartime
18 organisational structure of the state of Bosnia-Herzegovina during the
20 Q. Before becoming judge in this court, had you been mobilised?
21 A. I arrived in Travnik, and I met a friend of mine who had been at
22 the university with me. In view of the fact that a large number of judges
23 from Travnik had left before I arrived in Travnik, they were short of
24 staff, and I myself, at his invitation, agreed to report of the court.
25 And in fact, that was my mobilisation. I had a wartime assignment as
1 judge of the district military court in Travnik, and that was considered
2 to be the post I was mobilised to.
3 Q. By which army were you mobilised?
4 A. I was not mobilised by the army. I was mobilised by the municipal
5 secretariat in Travnik.
6 Q. Let me rephrase my question. What army was there in Travnik in
8 MS. KORNER: Your Honour, I'm sorry to stop this. But I wonder
9 where we are going. We're well into 1993 now and out of the period --
10 JUDGE AGIUS: I know, Ms. Korner. [Microphone not activated]
11 MS. KORNER: If Madam Fauveau would like to explain the relevance
12 perhaps very briefly. But at the moment, I can't see the relevance as to
13 what army he was mobilised in in 1993.
14 JUDGE AGIUS: Yes. Madam Fauveau, I had a big temptation of
15 stopping you earlier, actually, when you were continually putting
16 questions referring to the period following witness's arrival in Travnik.
17 Perhaps at this point in time, before we can decide whether you can go
18 ahead asking questions relative to this period, you could tell us what the
19 relevance of the sequence of the questions -- your sequence of questions
21 MS. FAUVEAU-IVANOVIC: [Interpretation] As regards the questions
22 relative to the War Presidency, I wanted to show that the Muslims and the
23 Croats had their own War Presidency.
24 As for the last question, I will move on.
25 But I think at the end of my cross-examination it will be quite
1 clear why I put this question to the witness.
2 JUDGE AGIUS: Okay. Please proceed.
3 MS. FAUVEAU-IVANOVIC: [Interpretation] I shall move on to the
4 mobilisation which took place in September 1991.
5 Q. You told us that the mobilisation was decided in 1991; is that
7 A. Yes, that is what I said, as far as I can remember.
8 Q. In September 1991, was Bosnia still a part of Yugoslavia?
9 A. I explained that earlier on during my cross-examination. I can
10 repeat what I said then. Bosnia and Herzegovina was a part at the time,
11 but of the so-called rump Yugoslavia, because the republics of Croatia and
12 Slovenia had acquired independence.
13 Q. Do you know when Slovenia and Croatia acquired independence and
14 were recognised as such?
15 A. I think it was -- I don't know the exact date, but I think in
16 September -- before September 1991. I don't know the date. But it was in
17 the course of 1991, I think.
18 Q. Would you agree with me that Croatia and Slovenia were recognised
19 as independent states on the 15th of January, 1992? You don't know, or
20 you're saying that that is not true?
21 A. I don't know. I think they were independent in 1991 already. I
22 don't know about this date, the 15th of January, 1992. As far as I know,
23 they acquired independence in 1991. But I don't know about this -- it's
24 possible. I just think it was in 1991.
25 Q. Would you agree that failing to respond to the call for
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 mobilisation was considered a criminal act?
2 A. Yes.
3 Q. You said that quite a number of people who did not respond to the
4 mobilisation lost their jobs.
5 A. Yes, I did say that.
6 Q. Would you agree with me that in Bosnia-Herzegovina in 1991, there
7 were two labour codes in force, a federal one and a republican one,
8 employment laws?
9 A. I know that there was a law on labour relations of the Republic of
10 Bosnia and Herzegovina, and I know that there was a law on basic rights
11 stemming from employment. So there were two laws. Now, which was at the
12 republic or the federal level, I can't say. But there were not two
13 identical laws at the federal and the republic level. One was the law on
14 labour relations and one was the law on basic rights stemming from
15 employment, as far as I can now recall.
16 Q. If I were to suggest to you that the Law on Basic Rights Stemming from
17 Employment was a federal law, would you be -- would you agree with me?
18 A. Yes.
19 Q. Would you agree that two laws envisaged measures for the
20 termination of employment?
21 A. Yes.
22 Q. Did you know that according to the federal law on employment, non-respect
23 of National Defence obligations involved the termination of employment?
24 A. I do not know that failure to respond to mobilisation according to
25 the law on basic rights stemming from employment resulted in termination
1 of employment.
2 Q. On page 9 of your statement in October of 2000, you said that the
3 government of Bosnia-Herzegovina decided that it was responsible for
5 A. I apologise. Could you tell me, please, which date? Your
6 statement of which date?
7 Q. It is the statement of October 2000, page 9.
8 A. I have received it in English. I do know that the government --
9 I'm sorry. I got my statement in English. Oh, here it is in Bosnian.
10 I'm sorry.
11 MS. KORNER: I'm told he should have the B/C/S version in front of
13 JUDGE AGIUS: He has it.
14 MS. FAUVEAU-IVANOVIC: [Interpretation].
15 Q. It's page 9, paragraph 1, the second sentence.
16 A. But I think that it is not the same page in my Bosnian version as
17 the one you are mentioning -- in Serbian. In any event, I stated, and
18 said, as far as I can now remember, that the government of the Republic of
19 Bosnia-Herzegovina took a decision, according to which, on the territory
20 of Bosnia-Herzegovina, it was only the defence ministry of the Republic of
21 Bosnia-Herzegovina that was competent for proclaiming mobilisation, and
22 not the municipal secretariats or other institutions.
23 Q. You also said that that decision of the government of
24 Bosnia-Herzegovina annulled the Yugoslav federal law. It is page 9 of the
25 Serbo-Croat version of your statement of October 2000. It is page 9,
1 after all.
2 JUDGE AGIUS: [Microphone not activated]
3 A. I said that it was --
4 JUDGE AGIUS: It starts in the Bosnian --
5 A. -- made null and void.
6 JUDGE AGIUS: It starts on page 8, the last two lines of page 8 in
7 the Serbo-Croat version, and continues then on page 9. So you should have
8 it in front of you now. And what Madam Fauveau is referring to is
9 obviously the last part, or the second half, of the first paragraph on
10 page 9.
11 MS. FAUVEAU-IVANOVIC: [Interpretation] I think, Mr. President,
12 that the witness still doesn't have the right version.
13 JUDGE AGIUS: Mr. Dzonlic, we are referring -- or you are being
14 referred to your interview or your statement following the interviews of
15 the 11th and 12th of October of the year 2000.
16 I also have before me the B/C/S version of that statement. And if
17 you have the same document that I have and you look at page 9, you will
18 see that the paragraph at the very top starts: [B/C/S phrase] That is the
19 paragraph that Madam Fauveau is referring you to.
20 Correct, Madam Fauveau?
21 MS. FAUVEAU-IVANOVIC: [Interpretation] Yes, Mr. President.
22 JUDGE AGIUS: Now, that paragraph actually starts the page before.
23 The beginning of that paragraph is on the previous page, where it
24 states: [B/C/S phrase]
25 Now, the relevant part of that paragraph or from that paragraph,
1 for the purpose of Madam Fauveau's question, is the second half of the
2 second part of the paragraph that you were reading at the top of page 9 of
3 that document.
4 And while the witness is thinking, Madam Fauveau, I've been asked
5 to draw your attention and kindly ask you to pause a little bit following
6 witness's reply until it's completely translated before you proceed with
7 the next question. Thank you.
8 MS. FAUVEAU-IVANOVIC: [Interpretation] Thank you, Mr. President.
9 I shall take care to do so.
10 Q. You did indeed say that this decision of the government of Bosnia
11 and Herzegovina made null and void the Yugoslav law.
12 A. Yes.
13 Q. Would you agree with me that a decision of a government cannot
14 annul a law?
15 A. I agree with you that it cannot be annulled. But it can be put
16 out of action, so to speak, because of the situation. But I do agree with
17 you; it cannot be made null and void.
18 Q. So in fact this decision of the government of Bosnia and
19 Herzegovina was an illegal one.
20 A. I don't consider it illegal. It was passed by the government of
21 Bosnia and Herzegovina through a legal procedure.
22 Q. Yes. But you agree that laws and decisions of the republic have
23 to be in accordance with the federal laws?
24 A. I already said previously that the federal laws at that point in
25 time, in view of the situation -- at least, that is how they were treated
1 -- this was no longer the state of SFRY. And from that standpoint,
2 because it was rump, procedurally laws existed because things had still
3 not been clearly defined, but there was a rump Yugoslavia. And I even
4 think that the Presidency of Bosnia and Herzegovina made the
5 recommendation that no citizens of Bosnia-Herzegovina should respond to
6 that mobilisation, being the highest body of authority in Bosnia and
8 Q. But in September 1991, Bosnia was still not independent.
9 A. That is true; it wasn't independent. But Bosnia and Herzegovina
10 within Yugoslavia was -- had the status of an equal member. It had its
11 own assembly, its bodies, its government, as did all the other republics
12 of the former Yugoslavia, and it was able to pass decisions, and it was
13 for those reasons that it took this decision as well.
14 Q. Yes. But the decision of Bosnia-Herzegovina has to be in
15 accordance with federal decisions and laws.
16 A. In principle, yes. But in reality, no, because the Yugoslav
17 People's Army, according to the law, should have protected the borders of
18 Bosnia-Herzegovina -- no, sorry, the borders of SFRY. And it didn't
19 protect the borders of SFRY. So you see there's a discrepancy between
20 what was real and what was formal or official.
21 Q. Precisely. Since you are mentioning that, when the JNA went to
22 Slovenia and Croatia to make war, wasn't that war precisely in order to
23 protect the borders, the boundaries, of Yugoslavia?
24 A. As far as I know, it didn't fight in Slovenia. It withdrew from
25 Slovenia. And in Croatia, it captured lines that it had drawn. I'm not
1 an expert for these things, so -- all I know is that it withdrew from
2 Slovenia, and that in Croatia, it captured certain lines itself imagined
3 and took up positions along those lines.
4 Q. So according to you, there was no fighting in Slovenia in June
6 A. I wouldn't call that fighting or combat. There were just certain
7 excesses. But in essence, it withdrew and left Slovenia.
8 Q. I shall move on to another subject. You said that judges of
9 Bosniak nationality were removed because they did not respond to the order
10 for mobilisation.
11 A. Yes. One of the reasons for their replacement was that one, that
12 they didn't respond to the mobilisation.
13 Q. Could you specify whether they were removed because they didn't
14 respond to the mobilisation or because they were of Bosniak nationality.
15 A. The judges were replaced because they did not respond to the
16 mobilisation, and I think the President of the court was dismissed on the
17 basis of decision that Bosniaks could not hold positions of authority.
18 And I know that the president of the civil section of the municipal court
19 in Banja Luka, who was a Croat by nationality, was replaced from his
20 position as president of the civil department because he was a Croat.
21 Q. Could you tell us what was the destiny of the prosecutor of Banja
22 Luka municipality? Was he also dismissed?
23 A. I don't know about the prosecutors. But let me just add that
24 judges, women, were dismissed on the basis of the decision that
25 responsible positions cannot be held by Muslims because women, after all,
1 were not obliged to respond to mobilisation. And they were replaced
2 merely because they were Muslim.
3 Q. The municipal prosecutor, that is an important position, is it
4 not? So I assume that prosecutors of Muslim and Croat ethnicity were also
6 A. I assume so, too, though I'm -- as I said, I don't know. But I
7 assume that the same applied to them. I assume only.
8 Q. Banja Luka also had a public attorney, Javni Pravobranicac. Could
9 you explain to the Chamber the function of this public attorney.
10 A. The public attorney's office is a separate and special institution
11 of the prosecution, the judiciary. In the former socialist system, it was
12 intended to defend the public interest, to protect the public interest,
13 before various institutions in the name of the state bodies, as a
14 representative of the state authority, when the interest of those
15 authority was involved. So it represented the interests of public
17 Q. Would you agree with me that the function of this public attorney
18 was a very important function?
19 A. For me, it's not important. But in the former system, it did have
20 a rather important role, if I can put it that way.
21 Q. Could Muslims and Croats continue to hold that position?
22 A. I don't know, but I'm saying again, I assume that the same applied
23 in that case too, because this applied to all institutions and then that
24 should also apply to that institution, too. It does apply.
25 Q. Do you know who was the public attorney for Banja Luka
1 municipality in 1992 and 1993?
2 A. No, I don't know.
3 MS. FAUVEAU-IVANOVIC: [Interpretation] Could the registrar please
4 give the witness Defence Exhibit DB33.
5 Q. Would you agree that that is the resignation of the public
6 attorney of Banja Luka?
7 A. Yes, I would agree.
8 Q. And the date of the resignation is the 14th of May, 1993, is it
10 A. Yes, it is.
11 Q. And the public attorney was Mr. Edin Hergic, was it not?
12 A. Yes, Edin Hergic.
13 Q. Would you agree that Mr. Edin Hergic, the public attorney of Banja
14 Luka in May 1993, was a Muslim or a Bosniak?
15 A. Yes, I agree.
16 Q. When you arrived in Travnik in 1993, were there any Serb judges
17 over there at the court?
18 A. Yes, there were Serb judges in the court, in the building of the
19 court, only they worked in the civil court. And the military court was
20 housed in that building. There weren't any in the military court, but
21 there were some in the civil court.
22 Q. Could you give us the names of those Serb judges?
23 A. I can't give you the names of the judges. I just know that -- I
24 am not from Travnik, but people who knew them -- it was known that there
25 were some.
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 Q. During the hearing last Wednesday, you spoke of a decision
2 according to which the Serbs who were not loyal to the SDS could not hold
3 important positions. Do you remember saying that?
4 A. Yes. Loyalty was required. Only those Serbs who had expressed
5 loyalty and patriotism could hold certain positions; I remember that.
6 Q. So actually, certain people could not hold important posts,
7 regardless of their nationality.
8 A. The Bosniaks couldn't; the non-Serbs couldn't hold any responsible
9 positions. As for the Serb, those who were loyal, who expressed
10 patriotism, they could hold such positions.
11 Q. But you agree with me that the decision also applied to Serbs?
12 A. There are two decisions. We saw there was one decision saying
13 that non-Serbs cannot be. And there was another decision, a separate
14 decision, which says only loyal Serbs who have demonstrated patriotism.
15 And as far as I remember even, there was a decision according to which it
16 was said that the SDS was the only party that was representative of the
17 Serb people. It is a fact that Bosniaks and Croats could not hold certain
18 positions. As for Serbs, it was required that they manifest loyalty,
19 patriotism. And I've already explained how they proved their loyalty and
21 Q. During the hearing of the 26th of February, 2002, you said that at
22 the time when members of Serbian defence forces appeared in Banja Luka,
23 you thought that they were members of the regular forces; is that right?
24 A. That was my impression. Not the regular army. For me, the
25 regular and legal army was the Army of Bosnia and Herzegovina. But in
1 quotation marks, one could say members of the army that was in Banja Luka,
2 because they were wearing military uniforms. And I believed that they
3 were people who are in the Serbian army. But I don't consider it legal,
4 and I never considered it legal.
5 Q. Mr. Dzonlic, speaking about the SOS, you said, "At the time I
6 thought that these were members of the regular army, to -- as I didn't
7 know that SOS existed. So I thought that they were indeed members of the
8 Yugoslav People's Army."
9 This is LiveNote, Tuesday, 26th of February.
10 What I am interested in is when you said that "I thought," did you
11 think at the time that they were members of the JNA, or do you think today
12 that they were members of the JNA?
13 A. No. I said that they were members of the army, which was in Banja
14 Luka. Members of that army, the army that was in Banja Luka.
15 Q. Yesterday you said -- no, not yesterday. On Thursday, you said
16 that you met a dozen or so men, that you referred to as "ninjas."
17 A. That is how we called them, because they are the people who
18 brought that money that we discussed a moment ago, and they were wearing
19 such uniforms. And amongst ourselves, we called them ninjas. That's the
20 name we gave them, because they reminded us of the ninjas from films.
21 Q. This pizzeria in which you met them, who owned this establishment?
22 A. I don't know who was the owner. I just know that it may have been
23 opened about six months or a year before that. I don't know who was the
25 Q. When did you see these men? In what period of time?
1 A. I said it was in 1992. I know it was warm, because we could sit
2 outside late in the evening. So I can't tell you exactly when it was.
3 But it was warm weather, and I think that one could sit outside until
4 10.00 without being cold. And it is judging by that, because it was warm,
5 that I assume it was in the spring or the summer.
6 Q. You said that you were able to sit outside until 10.00 p.m.
7 without being cold. Could you stay outside after 10.00 p.m.?
8 A. I may have stayed out, but I never stayed until 10.00, and I don't
9 think that you could even. I'm not quite sure, but I think, by then,
10 there was the curfew already. But I would return home around 9.00. But I
11 do know that it was warm because one could sit outside on the balcony. I
12 remember that it was warm. That's why I'm saying it was warm. So I
13 wouldn't stay outside after 9.00 ever.
14 Q. When you met these people in the pizzeria, were they disagreeable
15 with you?
16 A. No, they were not disagreeable in relation to anyone. Only, they
17 gave me the impression that they were showing off. I don't know what the
18 right term would be. But they weren't bullying anyone or anything.
19 Q. Was anyone else disagreeable with you in that pizzeria?
20 A. No, no one.
21 Q. You also said that these men had brought money from Belgrade.
22 A. Yes.
23 Q. Could you tell us, what was the currency in use in Banja Luka in
25 A. The dinar, the dinar, the "Yugoslav dinar," I think it was called.
1 But it was then that they brought this new dinar, this new money in. And
2 they said, "This will from now on be the means of payment, the new dinar."
3 And indeed, after a short while, it was the currency in use. It was also
4 the Yugoslav dinar, only the appearance had changed, I think. The
5 pictures on the notes were different and maybe the bank notes -- the value
6 of the bank notes changed. But that was the means of payment in use.
7 Q. But in 1992, the official currency in Banja Luka was still the
8 Yugoslav dinar, was it not?
9 A. Yes, yes. Even though, in reality, the Deutschmark was used most,
10 the Deutschmark in real life, in daily dealings.
11 MS. FAUVEAU-IVANOVIC: [Interpretation] Mr. President, I am now
12 moving on to another subject. Perhaps this would be an appropriate moment
13 for the break.
14 JUDGE AGIUS: Thank you, Madam Fauveau. I would agree with you.
15 We can now break for about 25 minutes, resuming at ten to 12.00, ten to
16 12.00 -- sorry, ten to 1.00.
17 --- Recess taken at 12.22 p.m.
18 --- On resuming at 12.54 p.m.
19 MS. KORNER: Your Honour, can I return very briefly -- because
20 obviously Mr. Dzonlic needs to come back to Rule 90(H). Your Honours
21 actually made a ruling on the 21st of February at page 2131 of the
22 transcript. Mr. Ackerman is actually not theoretically, but practically,
23 flouting that ruling and says he's not going to obey it because his
24 contention is this Rule is in breach of the Statute, and of Rule 97, which
25 interestingly is not mentioned once in the motion that he filed.
1 But Your Honour, it seems to me that this is clearly -- unless
2 Your Honours are persuaded by what's -- the contents of the motion, Your
3 Honours have very factually been invited to change your ruling. Your
4 Honour's ruling stands, and Your Honour, what we would have to say would
5 be identical to the way I put the case effectively when we argued it
6 orally. It is going to have a serious effect, not only on this trial but
7 from what Mr. Ackerman says, and I believe that's correct, on other trials
8 as to how this Rule is applied.
9 I was wondering -- and can I say straight away that Madam Fauveau
10 told me they intend to file something on this matter tomorrow or this
11 afternoon --
12 MS. FAUVEAU-IVANOVIC: [Interpretation] Today.
13 MS. KORNER: Right. But I was wondering whether in a sense
14 whether Your Honours, having got their motion, having perhaps heard me
15 again orally, could make a ruling. And if it is along the lines of the
16 ruling that Your Honour has already made, then Your Honours do have power
17 to grant us what I would call a certificate for appeal. Your Honour, it's
18 clearly -- whichever way Your Honours rule, it's going to go to the
19 Appeals Chamber.
20 JUDGE AGIUS: [Microphone not activated]
21 MS. KORNER: Your Honour, Rule 73(C) states that: "The Trial
22 Chamber may certify that an interlocutory appeal during trial from a
23 decision involving evidence or procedure is appropriate for the
24 continuation of the trial. If such certification is given, a party may
25 appeal to the Appeal Chamber without leave".
1 Your Honours, I would invite Your Honours to perhaps consider the
2 matter before we call the next witness and make a ruling.
3 Mr. Ackerman, whatever his personal views, is obliged --
4 JUDGE AGIUS: Just to make sure that we have the same text --
5 MS. KORNER: Oh, I wonder if it's been changed.
6 JUDGE AGIUS: And also, I may inform you that it is also -- what
7 you have here is also under review. What you have here is also under
9 MS. KORNER: Your Honour, I'm just -- Your Honour is quite right.
10 It may have changed. Yes.
11 JUDGE AGIUS: Exactly.
12 MS. KORNER: It has. I'm sorry. I'm reading the old version.
13 JUDGE AGIUS: I think it is the amended version.
14 MS. KORNER: Yes, thank you very much, Your Honours. You are
15 quite right. The amended version reads: "The Trial Chamber may certify
16 that an interlocutory appeal during trial from a decision involving
17 evidence or procedure is appropriate for the continuation of the trial
18 upon a request being made within seven days of the issuing of the
19 decision. If such certification is given, a party may appeal to the
20 Appeal Chamber, without leave, within seven days of the filing of the
22 Your Honours, I'm grateful. Unfortunately, I still haven't
23 produced a printed version.
24 JUDGE AGIUS: And also what you have here is also being -- is
25 under review at the present moment.
1 MS. KORNER: I wasn't aware.
2 JUDGE AGIUS: There may be some further changes within a very
3 short time.
4 MS. KORNER: I wasn't aware of that, Your Honour. I hope it's not
5 to abrogate the rule.
6 JUDGE AGIUS: At the next Plenary, which will be in April,
7 probably. In April, as early as April, there may be some changes to this
8 as well.
9 MS. KORNER: Well, Your Honour, I would encourage Your Honour,
10 therefore, if the idea is to abrogate the Rule, in other words to remove
11 it --
12 JUDGE AGIUS: No, no, no. We're not talking of Rule 90.
13 MS. KORNER: No, Rule 73. I appreciate that
14 JUDGE AGIUS: No. It's going to be modified, presumably. I mean,
15 I can't say that it the will definitely be modified. But there's some
16 discussion going on.
17 MS. KORNER: Your Honour, I'd be grateful really because for the
18 moment it is not enough for Mr. Ackerman to say, "I decline the oral
19 decision that Your Honours have made."
20 JUDGE AGIUS: Well, I think we have two issues here. Or before I
21 express myself, let me hear what Mr. Ackerman has to say.
22 MR. ACKERMAN: Your Honour, I don't have with me the transcript of
23 the discussion we had previously regarding this, but it's nowhere near as
24 clear as Ms. Korner would suggest to you it is. I recall early on in the
25 transcript that I made the point that I should not be required to put to
1 the witness something that could only come from my client. And Your
2 Honour saying, "I absolutely agree with you about that." So that's in the
3 transcript, and that's all --
4 JUDGE AGIUS: I said, Mr. Ackerman, "You need not tell the witness
5 that -- or reveal that this information is forthcoming from your client."
6 But basically, you as a lawyer, know very well that before you embark on
7 defending someone, you have meetings and meetings and meetings, and
8 conferences with your client, so that you are put in a position to be able
9 to defend your client to the best of your ability. It doesn't mean to say
10 that the moment you open your mouth and make a statement which is based on
11 the information that your client has given you, in order to put you in a
12 position to defend him, that you are violating the rule under 97. Of
13 course it doesn't. It will violate if you come out here and you will say,
14 "I had a discussion with my client, and my client told me this and told
15 me that." That would be in blatant violation of Rule 97 and any rule of
16 ethics by which all lawyers are -- all lawyers are bound. But telling
17 Mr. Dzonlic as a witness: "I put it to you that you may be wrong in that
18 these words were never uttered by my client, Mr. Brdjanin," does not mean
19 that you are revealing necessarily what Mr. Brdjanin said or may have told
20 you. He may have told you nothing about it. But you are there, and you
21 have -- you have taken upon yourself the responsibility of defending your
22 client. And what I tried to hint at you, to suggest to you before,
23 leaving completely unprejudiced your legal rights to have Rule 90(H)(ii)
24 contested was to play it safe and not find yourself possibly later on in a
25 situation whereby what Ms. Korner threw in your face, in inverted commas,
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 at a certain point in time would prejudice your case. I mean, because you
2 never know how this 90(H) business is going to finish. I don't know. You
3 don't know, and Ms. Korner doesn't know. I mean, it would be very, very
4 pre-emptive on my part to even hint at where we could be heading. We
5 haven't even started discussing the matter, because we are waiting for a
6 response from the Prosecution. And now we also hear that the Defence team
7 for General Talic is going to file a motion. So the matter is quite open,
8 much more open than it possibly was last Friday or earlier on this
9 morning. I see no -- absolutely no harm in taking -- I mean, the stand --
10 the rigid stand that you have taken, I can understand. But not when I
11 tell you that whatever argument you may have in putting forward the motion
12 that you have presented last week remains unprejudiced. Then I don't see
13 any reason any more. Because what I was trying to do was to help, rather
14 than put you in a difficult position.
15 I mean, let's put it like this: You -- I don't know what the law
16 is like in the United States on this particular matter. But I am sure
17 that you know that in many common law jurisdictions, this is not unheard
18 of. This is something that exists in many countries. And it exists
19 precisely because the purpose, the raison d'etre, of the cross-examination
20 varies according to jurisdictions. Over here, if you look at 90(H), the
21 first -- the very first paragraph of 90(H), you will immediately see what
22 was in the mind of the Judges when they introduced this new rule way back
23 in 1999.
24 In the first paragraph of 90(H), what we did -- I wasn't here at
25 the time, but it's -- I belong to the team now. What we did was we
1 specified the parameters of cross-examination, something that was needed,
2 because unfortunately or fortunately, I don't know, we were having cases
3 here where lawyers came from different jurisdictions and sometimes from
4 jurisdictions where the system -- the whole system of -- or the whole
5 concept of cross-examination does not exist. So basically you have the
6 first rule which is common to practically all of the systems which I am
7 aware of, where you have a cross-examination, and that is that
8 cross-examination, on principle, should be limited to the subject matter
9 of the evidence in chief. That is the basic rule as it obtains in all
10 jurisdictions that I know of -- I know of where you have
12 Then you have another instance, another section, where
13 cross-examination can delve into. And that is if you, as the lawyer
14 conducting the cross-examination, want to put questions affecting the
15 credibility of the witness. Again, that is something that is common to
16 most of -- or if not all the jurisdictions that I know of where you have
17 the cross-examination system.
18 And then finally, something that was introduced but which exists
19 in most common law jurisdictions that I know of: Cross-examination can
20 also get outside the parameters of the first two instances, the first two
21 sections, in other words, the subject matter of the evidence in chief, or
22 matters referring to credibility, if you jump out of those boundaries and
23 you embark on a cross-examination purporting to put questions to obtain
24 answers which are relevant to your case, the case of your client, then all
25 of a sudden immediately the provisions of paragraph 2 of section 9(H) --
1 or when I say "section," pardon me. I'm used to sections and articles. I
2 don't usually work with rules. But then immediately, automatically, the
3 provisions of para 2 of Rule 90(H) come into play. And this is where you
4 are required by this section if you are going to ask questions to the
5 witness, purporting to obtain evidence from him which is relevant to your
6 case, you have to tell him or her what your case is, number one. And
7 secondly, that if he's saying "white," you have reason to believe that he
8 is not saying the truth because you have evidence in your hand which says
9 "black." This is what is required from you under 90(H), para 2, which is
10 a logical sequence to para 1 of 90(H), and it is something that exists in
11 many jurisdictions.
12 If need be when we come to a decision -- we can tell you it exists
13 in -- it exists in Singapore, it exists in the United Kingdom, it exists
14 in Malta, it exists in several places. I don't know if it exists in the
15 United States. I haven't checked. And to be frank with you, I have a
16 book now which I took with me over the weekend to read but I never managed
17 to get it to because I was reading the statements of the witnesses we will
18 be hearing next week.
19 MR. ACKERMAN: I know that it doesn't exist in the United States
20 or Canada. That part I'm certain of.
21 JUDGE AGIUS: Canada, I don't know either. But I can check very
22 easily with Canada because I --
23 MR. ACKERMAN: I also know it doesn't exist in any country that's
24 part of European Community because it would violate the European
25 Convention of Human Rights, I believe.
1 JUDGE AGIUS: That's your contention. That's my contention
2 MR. ACKERMAN: Yes, that's my contention.
3 JUDGE AGIUS: Your contention in your motion is that this is in
4 violation of the fair trial of the due process, the whole -- because you
5 will be bound to reveal this and that, and it is in violation of your
6 client's right to remain silent. This is the point in issue, and this is
7 what we will decide later on when we come to the crux of the matter.
8 MR. ACKERMAN: But Your Honour -- I'm sorry.
9 JUDGE AGIUS: Yes. Go ahead, Mr. Ackerman. I mean, I'm not
10 arguing with you. I'm just telling you the Chamber's point of view,
11 trying to pave the way for a smoother procedure, more or less.
12 MR. ACKERMAN: Your Honour, it's not just my contention. It in
13 fact does not exist within the European Community, with the exception of
14 the United Kingdom. And I think it's in great jeopardy because of the
15 United Kingdom's adherence to the European Convention of Human Rights.
16 But that is an argument for a latter time.
17 What I say to you now is this: It may be that I don't fully
18 understand this Rule because I've never encountered it before, but just at
19 first glance, and later reflection, I believe that what I've said in my
20 motion is correct. Now, what you are inviting me to do with regard to
21 this witness, I think I have already done. I'm not flouting your decision
22 of last Friday in any respect, I don't believe. I think I have put to the
23 witness what it is that I am prepared to put to the witness at this point.
24 It seems to me that it makes little difference if the information
25 contained in a question that I put to the witness comes to me as a result
1 of a privileged communication with my client. Whether I say this came
2 from my client or whether I not disclose that, I think it's obvious that
3 that's where it came from.
4 JUDGE AGIUS: You don't have to say anything, Mr. Ackerman. The
5 whole thing is this -- I mean, let me move one further step ahead and say
6 that it may well be the case, as has been decided in other jurisdictions,
7 that the -- putting the nature of the case of your client to the witness,
8 it being in contradiction to the evidence given by the witness, may
9 sometimes be implied. Sometimes -- most of the time, it needs to be
10 expressed. But it is not excluded that it may be implied, considering the
11 sequence of the questions that you embark upon.
12 What I was trying to explain to you is this, that irrespective of
13 the fact that you are contesting the validity -- the legal validity of
14 this particular provision, for the time being, there is the provision and
15 there is a ruling by this Trial Chamber which is binding, at least for the
16 purposes of this trial. What Ms. Korner is suggesting or is recommending
17 or is asking is for the Trial Chamber to apply the provisions of 73(C) so
18 -- providing for an appeal before we even reach the stage of deciding -
19 deciding - the motion that you have brought forward.
20 Am I correct, Ms. Korner?
21 MR. ACKERMAN: I don't think that's what she's asking.
22 JUDGE AGIUS: Yes, of course. This is why I'm repeating to you,
23 because I -- I consider the ruling -- the point raised last week, and the
24 ruling given by this Tribunal as something which is completely different
25 when it comes to the nature, are different to the motion or to the essence
1 or substance of the motion that you are raising now, because what you're
2 raising now is the intrinsic validity of one of the Rules of this
3 Tribunal. What you raised last time was the applicability of -- or the
4 way Rule 90(H)(ii) ought to be applied by this Tribunal. And that is what
5 we decided on last week.
6 On the decision tendered down verbally, orally last week. I think
7 it is the case of you as Defence counsel, once you have the word of the
8 Trial Chamber, that the rest remains unprejudiced, to follow according to
9 the lines dictated by or shown by our decision and put to the witness, who
10 has told you what he has told you and -- upon cross-examination, the
11 nature of the case of the party. In French, if you remember, I told you
12 that -- to me, the translation is not a literal translation. There is
13 more sense in what is -- what appears in the French version than what
14 appears in the English version -- to show him that you are not accepting
15 what he is saying but that you have material in your hand which is in
16 contradiction to what he stated. This is all that the Prosecution asked
17 you to do and this is all that the ruling of this Trial Chamber asks you
18 to do, if we have to follow, or if we are to follow the provisions of this
19 -- of this paragraph. The rest remains unprejudiced.
20 You may within a very short time convince this Trial Chamber that
21 all in all, this provision runs counter to your client's right to remain
22 silent. It may run counter to any other privilege which your client may
23 have by way of a fair trial in due process. I don't know. How can I tell
24 you before how we are going to decide that matter? I don't know. And my
25 two colleagues don't know, because we haven't even started discussing it.
1 MR. ACKERMAN: Your Honour, I -- I'm in full agreement with what
2 you've said, and that is that I must comply with your ruling of last
3 Friday. Just because I'm contesting this particular provision doesn't
4 mean I'm entitled to ignore it, because it is the law, as I stand here
5 now, and will continue to be the law until it's changed, if it is.
6 I find myself in a bit of a quandary and dilemma because I don't
7 want to do something that is -- has a negative effect on my client's case,
8 but by the same token, I don't want to do something that will hurt my
9 client's case. So I don't know where to proceed now. I think I have done
10 what I am required to do and what I should do in this cross-examination
11 with regard to the provisions of this Rule. I don't think I have failed
12 to ask any questions that this Rule would say that I should ask.
13 JUDGE AGIUS: That's your point of view. You may be right; you
14 may be wrong.
15 MR. ACKERMAN: I think I'm right.
16 JUDGE AGIUS: You may be wrong, depending on the final decision
17 that there will be, if there is one, on what Article 90(H)(ii) means --
18 effectively means, read in conjunction in the same context as Article --
19 as para 1 of that provision, of that Rule.
20 MR. ACKERMAN: No, I don't think that's it at all. I don't think
21 it has anything to do with what the Rule means. It has to do with this --
22 JUDGE AGIUS: No. But let me ask you a very simple question.
23 MR. ACKERMAN: Yes.
24 JUDGE AGIUS: Between these two cases, proceeding the way you want
25 or you are wishing -- you wish to proceed, and proceeding the way Ms.
1 Korner is suggesting, whereby in actual fact there is a provision made
2 beforehand for a possible appeal against the decision that we handed down
3 last week -- I mean, because does it make sense -- I mean -- or any
4 logical -- is there any -- do you see any logic at all in having that
5 decision remaining unchallenged qua the decision, the ruling of this
6 Tribunal, dating back to the 21st of February and proceeding with the --
7 with the motion? I mean, to me, what makes sense is appealing that
8 decision and pushing the other motion, too. But if that is what makes
9 sense, then the suggestion of Ms. Korner certainly is the way -- is the
10 way to go about it. I mean, I will -- I will pre-empt the issue before
11 you decide whether it's the case of appealing against my ruling or our
12 ruling of last week. I apply or bring into operation the provisions of
13 para (C) of Rule 73. You have every opportunity to file an appeal against
14 that decision that, ruling, while keeping in -- under consideration until
15 we come to a final conclusion the fresh -- the new motion that you have --
16 that you have presented, which to me presents this -- the same -- presents
17 for the first time a challenge to Article -- to Rule 90(H)(ii). What we
18 had before us last week was not a challenge to -- against Article
19 90(H)(ii). It was a challenge to the interpretation or the way that the
20 Prosecution pretended that particular Rule ought to be applied.
21 MR. ACKERMAN: I think the record will show, Your Honour, that I
22 suggested in my argument that it violated Article 21 of the Statute.
23 JUDGE AGIUS: You did. But basically what we decided was not
24 whether it was in violation of this or that principle. What we decided
25 was what actually that matters -- what that Rule in effect meant and how
1 it should be applied. And the request was precisely to that effect. It's
2 only this motion now that challenges directly the -- the Rule itself.
3 MR. ACKERMAN: Well, let me try to make my position with regard to
4 this particular witness as clear as I can, because I don't want there to
5 be a misunderstanding between me and the Trial Chamber.
6 The allegation of the Prosecution is that certain statements were
7 made by Mr. Brdjanin during the year 1992. I have looked at or had looked
8 at every issue of the Glas newspaper which I can get my hands on, that the
9 witnesses all say will reflect these statements. I have a CD-ROM that has
10 all of the material taken from the radio station that's all in B/C/S, so I
11 cannot read every word of it, but I have people who are in the process of
12 looking at it and have been in the process of looking at it for some time.
13 As I stand before you today -- and that doesn't mean it won't
14 change. But as I stand before you today, I have found not one bit of
15 evidence either from the radio/TV material, or from the newspaper Glas
16 that Mr. Brdjanin made any of these statements.
17 JUDGE AGIUS: That's precisely what Ms. Korner --
18 MR. ACKERMAN: So -- but I cannot stand here and say to the
19 witness, without having complete knowledge as to whether it appears in the
20 Glas or any of these radio things, because I tell you, I have not seen
21 every one of them yet. I haven't found every one of them yet. But as far
22 as I know at this point, no such statements were made between April and
23 December 1992. Now, I could turn out to be wrong. There may be a Glas
24 that I haven't seen yet. And I don't want to challenge this witness,
25 saying, "Isn't it true that these statements were not made at all during
1 1992," and then have Ms. Korner walk in with a videotape that I haven't
2 seen or an issue of Glas and make me look like a fool.
3 JUDGE AGIUS: That's always a risk. Ms. Korner herself has come
4 here saying that there are some documents which the Prosecution know the
5 existence of but they have been unable to bring forward. No one would be
6 in the least surprised if these documents turn up in your case sometime
7 during this trial. It could -- I mean, what do we do then?
8 But the whole thing is -- again, I read to you, and I invite you
9 to read the text in French. You have to confront the witness or [French
10 phrase]. In other words, whatever you have -- you may not have
11 everything, and you -- no one expects you to have everything, just as no
12 one expects he Prosecution to be in possession of all the evidence that
13 is required to convict your client and General Talic. They may have some
14 witnesses, but not all. You may have evidence, but not all. You may have
15 some evidence, but not all. But if you have reason to believe -- this is
16 what is required from you. If the -- you have asked a direct question to
17 the witness on cross-examination purporting to obtain from him a piece of
18 information which fits in the nature of your case.
19 First you have to tell that witness what you are contending.
20 Secondly, if after you have told that witness what you are contending,
21 that witness tells you, "No, this is not light green, this is dark blue,"
22 and you have every reason to believe that he is not telling you the truth
23 or you have evidence in your hand or material elements in your hand,
24 elements related to your case or your client's case, which can be put --
25 of which the witness can be made aware of to show him that he can be
1 contradicted, you are duty-bound to do it in terms of Rule 90(H)(ii).
2 This is what 90(H)(ii) -- whether it's legal or not is another matter.
3 MR. ACKERMAN: I think I did it.
4 JUDGE AGIUS: But it's definitely got nothing to do with what your
5 client may have told you inside your office, or wherever you meet him.
6 MR. ACKERMAN: I did that. I said to him, "Isn't it the case that
7 you did not hear Mr. Brdjanin make these statements during year 1992?"
8 JUDGE AGIUS: And the whole issue is you put two possibilities,
9 according to Ms. Korner, to the witness. You did not put the third
10 possibility, which to Ms. Korner is the most important. In other words:
11 "I put it to you, Mr,. Dzonlic that you may be living an illusion, that
12 you are completely mistaken, because the -- we can prove with the evidence
13 that we have that these statements were never made by Mr. Brdjanin." Or
14 you don't even go that far. You can tell the witness, "I put it to you
15 that it is the contention -- it is the firm belief and conviction of this
16 -- of my client that these words were never -- were never uttered by
17 him." It's -- the thing is that you have to put it black on white with
18 the witness that if you have asked for some information from him which
19 fits in your case and he hasn't given it to you, then you have to tell
20 that witness that in spite of the fact that he has answered "white," you
21 can prove that it is black and not white. In other words, you can -- you
22 have elements in your possession that will prove him wrong.
23 MR. ACKERMAN: Well, Your Honour, I can't imagine that anybody in
24 this courtroom could in their wildest imagination believe that if I put
25 such a question to this witness, he will say, "Oh, oh, you're right. I'm
1 lying." I mean, when is that -- what century is that going to happen in?
2 That's never going to happen. So what we're doing here is something
3 that's just kind of -- it seems to me a major waste of time.
4 I've made it very clear to Ms. Korner just a few moments ago what my
5 position is. I have not found any of these statements in the newspaper or
6 in the television or in the radio. That's my position. And I've stated
7 that basically to this witness. I don't know how I can go any further.
8 If I say to him, "Isn't it true that you're lying that Mr.
9 Brdjanin didn't make these statements," he's just going to say, "No, I
10 heard them. I'm telling the truth." What else could he possibly say?
11 JUDGE AGIUS: But the situation otherwise is -- you will be worse
12 off. Because what do you have? You have question number one and question
13 number two, and you never put the question to the witness whether it could
14 well be that he's completely mistaken and these words were never uttered
15 by your client in 1992 or whenever.
16 MR. ACKERMAN: I've done. I said --
17 JUDGE AGIUS: You haven't. No. What you have -- what you have
18 done, if Ms. Korner -- I don't doubt it, if Ms. Korner read the transcript
19 correctly, the two questions that you put to the witness do not cover that
20 part of the scenario. You never put to the witness the possibility that
21 irrespective of 1992 or 1993, he may be completely wrong, be completely
22 misguided and misinformed that these words were never really uttered by
23 your client. This is the whole issue. If the question is not put, what
24 do you have? You have a -- a question that referred to 1993 and you have
25 an answer referring to 1993 and you also have a question relating to 1992
1 and you have an answer relating to 1992. But you never had a question
2 putting into doubt whether Mr. Brdjanin uttered those words or not. And
3 you have an answer -- a reply by the witness stating that he heard
4 personally these words. In other words, you have a situation -- this is
5 why such a -- a Rule is important. You have a situation whereby the
6 statement of the witness that he personally heard these words on the radio
7 or on TV, whether in 1992 or 1993, has not been challenged directly by you
8 -- directly with the witness. You have never -- you haven't contested
9 that. You have asked the witness more than one question but never put
10 into doubt whether those words were actually stated. This is what Ms.
11 Korner's objection is all about, and this is what the Trial Chamber is
12 trying to obviate in your client's interest, after all, I mean, because I
13 have no interest in making speeches here. But it seems to me that you are
14 -- you have still not grasped the -- you have -- Ms. Korner is smiling.
15 You have still not grasped the real import of Rule 92 --
16 90(H)(ii). It's my firm belief and possibly because you don't have it in
17 your system in your jurisdiction.
18 MR. ACKERMAN: Your Honour, the only -- the only issue about these
19 statements is whether my client made these statements in 1992. And I
20 think I asked him that. I said, "Isn't it the case that these statements
21 were -- that you heard these statements from other people or that they
22 were made after 1992?" I believe that's what I asked him. Isn't that
23 what I asked him?
24 MS. KORNER: Your Honour, what -- Mr. Ackerman still doesn't grasp
25 the point because each time we raise this point, he goes back to the
1 privilege that his client enjoys. If Mr. Brdjanin were to give evidence -
2 and there is no obligation on Mr. Brdjanin to give evidence by
3 this method - and during the course of that evidence were to assert, "I
4 never, whether it was 1991, 1992, or 1993, said no less than two or five
5 per cent of Muslims shall stay in Banja Luka" or "they can all eat winter
6 cabbage," which is the other one that seems to be common, then none of
7 that has been put to the witnesses. And the first thing that is going to
8 be said by cross-examination to Mr. Brdjanin: "You have recently invented
9 this. This wasn't part of your defence. You're just saying whatever you
10 want to get out of it."
11 Now, I don't know how Mr. Ackerman is going to stop that. And the
12 way of stopping that is by -- his client's case, whether it comes from his
13 client or documents being put fairly and squarely. Counsel are not meant
14 to invent defences. Counsel get defences from what their client tells
15 them and it is not a breach of privilege to say to the witness: "I put it
16 to you, Mr. X, that you're not telling the truth or that you're mistaken."
17 This Rule, 97(H) is meant to stop -- Mr. Brdjanin told me in conference or
18 Mr. Brdjanin will say this or will that. That's what he can't reveal.
19 That's the privilege. But what it doesn't do is prevent him from putting
20 his case.
21 Your Honour, I'm sorry it's now taken so long again, because
22 actually, Your Honour is right. My suggestion was going to be either we
23 had a further part of the argument but that in actual fact, the way to
24 resolve this really is only going to be for Mr. Ackerman either to abide
25 properly by the ruling or to appeal the ruling Your Honour made last week.
1 JUDGE AGIUS: You are right there.
2 MR. ACKERMAN: Well, to bring matters to a conclusion, I hope,
3 what I would suggest is that before we call the next witness, that
4 Ms. Korner and I each have a -- a moment or whatever the Trial Chamber
5 decides is an appropriate amount of time, to argue the motion that I have
7 JUDGE AGIUS: Certainly, yes.
8 MR. ACKERMAN: And that we then have a decision from the Chamber
9 as soon as possible with regard to that, that I think both of the matters
10 need to be part of an appeals process, if there's going to be an appeal.
11 And --
12 JUDGE AGIUS: Yes. But that -- in the meantime, I would apply,
13 therefore, 73(C), with regard to the ruling that we handed down last week
14 straight away, because it also makes sense that if you're going to appeal
15 or she is going to appeal -- I mean, it's -- let's say you lose -- you get
16 an adverse decision on this new motion. It only makes sense if you appeal
18 MR. ACKERMAN: Yes.
19 JUDGE AGIUS: Yes. Madam Fauveau, I'm sorry to have kept you
20 waiting. I saw you standing up. Yes, go ahead.
21 MS. FAUVEAU-IVANOVIC: [Interpretation] As we are discussing Rule
22 90(H), I wish to inform the Chamber that our conclusions relates to the
23 difference between the English and the French version, because in the
24 English version, counsel is obliged to confront the witness with the
25 elements in his possession. According to my understanding of the French
1 language - and it is not my mother tongue; I may be wrong - the elements
2 it has in its possession are elements which counsel can submit to the
3 witness but certainly not an element derived from a conversation with his
4 client, because in that case, the Rule would say that he should confront
5 the witness with the elements he is familiar with, not that he has in his
7 JUDGE AGIUS: Anyway, I don't think we can proceed any further
8 with the discussion.
9 Will you please make a formal request verbally for the application
10 of Rule 73(C) being specific as to which ruling you want --
11 MS. KORNER: Well, Your Honour --
12 JUDGE AGIUS: You want the certification.
13 MS. KORNER: Well, Your Honour, it's not my appeal, because I
14 abide by it. It's Your Honour's ruling which I accept and wish to have
15 applied. It's Mr. Ackerman who does not wish to apply or submits that
16 Your Honours ruling does not require him to put his client's case to the
18 JUDGE AGIUS: Yes, Mr. Ackerman.
19 MR. ACKERMAN: Well, then I will do it, Your Honours. I will make
20 a formal request under Rule 73(C) that the Trial Chamber certify that an
21 interlocutory appeal with regard to the matters decided -- I think it was
22 last Friday -- with regard to Rule 90(H)(ii) --
23 JUDGE AGIUS: That wasn't last Friday. It was much earlier than
24 that. The 21st.
25 MS. KORNER: Your Honours, it's the ruling of 21st of February of
1 this year and the ruling starts in the unofficial transcript -- or the
2 argument starts in the unofficial transcript at page 2. And I can't
3 remember where the ruling is now. But it's there.
4 MR. ACKERMAN: Well, the Rule requires that this application I'm
5 making be made within seven days, and that time has expired. I think you
6 can extend it and still accept the application. I'm not sure of that. But
7 if that's the case, it should have been made by March 1, and it was
9 JUDGE AGIUS: Yes. The Trial Chamber -- upon the request by
10 Mr. Ackerman, Defence counsel to accused Brdjanin, considering or taking
11 into consideration in particular the debate on the import -- import of its
12 ruling on the -- on its ruling of February 21st, 2002, on Rule 90(H)(ii),
13 taking also into consideration the filing of a separate motion challenging
14 -- by accused Brdjanin challenging the legality of the said Rule, deems
15 it appropriate to allow for an interlocutory appeal, as this would
16 evidently be necessary for the continuation of this trial. The
17 certification under Rule 73(C) is being given also -- in spite of the fact
18 -- or notwithstanding that more than seven days have passed or have
19 elapsed since the issuing of the February 21st decision.
20 So that the position, and we will soon have to stop. I think we
21 ought to bring the witness in so that I can explain to the witness why he
22 has been kept waiting for three quarters of an hour outside, without being
24 MR. ACKERMAN: While we're waiting for the witness, may we -- may
25 we argue the formal motion, the written motion, at the conclusion of the
1 testimony of this witness then?
2 JUDGE AGIUS: May we argue what?
3 MR. ACKERMAN: The written motion that I filed.
4 JUDGE AGIUS: Yes. But that's going to be argued -- I mean, I'm
5 still waiting for the motion that Madam Fauveau will be filing.
6 MR. ACKERMAN: I think she will file it either today or ...
7 JUDGE AGIUS: She said today.
8 MS. FAUVEAU-IVANOVIC: [Interpretation] I will file it after the
10 MR. ACKERMAN: I'm just wondering if it's appropriate to argue
11 that matter tomorrow or does Ms. Korner need more time. I think the
12 quicker we dispose of that, the better things will be.
13 MS. KORNER: Yes.
14 JUDGE AGIUS: Yes, Ms. Korner.
15 MS. KORNER: Yes, I think really it's all so tied up with the
16 appeal that it seems to me that all those matters can be raised in the
17 appeal and the Appeals Chamber can then look at whether or not it's in
18 breach of the Statute.
19 Your Honours have made a ruling, have given leave for an
20 interlocutory appeal, and I would have thought that that's the way to go
21 about it. I -- it personally sees to me that that is really the matter
22 the Appeals Chamber should look at, is this Rule in breach of the Statute,
23 and if not, how should it be applied?
24 JUDGE AGIUS: Yes, exactly. Basically what Ms. Korner is very
25 intelligently, I must say, suggesting or putting it, is that you could now
1 avail yourself of this certification, file an appeal straight away against
2 the decision of this Chamber of February 22nd, and the appeal would have
3 as a ground not only what you may have argued last week or whenever we
4 handed down our decision but also the new elements that you are bringing
5 forward in your motion challenging the legality of Rule 90(H)(2). Because
6 basically, if you win on that score, our decision of February 21st,
7 although it had nothing -- it did not deal with that -- with that matter
8 or with that -- with that matter, would fall automatically if your appeal
9 is upheld -- is upheld. I don't know if I'm making myself clear.
10 MR. ACKERMAN: You're make yourself clear. I just don't know
11 quite how I'm going to appeal a decision that's not been made, because
12 there are matters raised in my motion to Rule 90(H)(2) after which there's
13 no decision.
14 JUDGE AGIUS: Well, what Ms. Korner is suggesting is very
15 obvious. I mean, your motion, new motion, will remain in abeyance, so to
16 say, because this same substance of it would be the grounds of appeal
17 against our decision of February 21st.
18 MR. ACKERMAN: You're probably right. I just need to look at the
20 JUDGE AGIUS: I hope I understood you well, Ms. Korner.
21 MS. KORNER: You did.
22 JUDGE AGIUS: Yes. If I am making a mistake, please tell me,
23 because I -- sometimes things get difficult and get out of hand.
24 MS. KORNER: Mr. Ackerman made it plain in the course of the
25 argument that his suggestion was that this Rule was in breach of the
1 Statute. It appears in the transcript. And so one of the grounds of
2 appeal against the decision will be on the basis that the Rule should not
3 stand at all because it is in conflict with the Statute.
4 JUDGE AGIUS: Yes. Exactly. And perhaps because in my -- in our
5 ruling we just mentioned you, the Trial Chamber is making it clear also
6 that what applies to you applies also to Madam Fauveau, obviously,
7 particularly knowing now that we know that it is the intention of General
8 Talic to file a motion.
9 Now, you may decide whether it's worth your while to file the
10 motion or not, but I -- at this point in time, I would say go ahead. And
11 on the basis of the fact that you have filed your motion, you can actually
12 join hands with Mr. Ackerman in appealing against the February 21st
13 decision, because you would have the same interests, even though the
14 argument may be different, you would have the same interest.
15 Can I have the witness, please.
16 Mr. Dzonlic, we don't like it -- we don't like keeping witnesses
17 waiting outside for more than it is necessary, and it was the intention of
18 this Trial Chamber to finish with your testimony this morning. However, a
19 legal problem has arisen which needed to be debated before we could
20 proceed with your cross-examination. So unfortunately, we took the past
21 three quarters of an hour discussing the legal problem involved, with the
22 result that I apologise to you for having kept you waiting outside, not
23 knowing exactly what was happening, and also as a result of that, you will
24 have to come again tomorrow morning. Again, my apologies. I'm sorry, but
25 it was not something capricious. This was something that we had to do
1 because it was a very important legal matter -- there was an important
2 legal matter involved. I thank you. You may now withdraw. And hopefully
3 tomorrow morning you will finish your testimony within a very short time.
4 I thank you.
5 THE WITNESS: [Interpretation] I understand fully, Your Honour.
6 Thank you.
7 [The witness stands down]
8 JUDGE AGIUS: So again, my apologies to the interpreters. Maybe
9 also during the debate we were exchanging and -- remarks very fast. My
10 apologies. We will meet tomorrow morning at 9.00.
11 --- Whereupon the hearing adjourned at 1.49 p.m., to
12 be reconvened on Tuesday, the 5th day of March,
13 2002, at 9.00 a.m.