Tribunal Criminal Tribunal for the Former Yugoslavia

Page 146

1 Wednesday, 18 January 2006

2 [Open session]

3 [The accused entered court]

4 [The witness entered court]

5 --- Upon commencing at 9.05 a.m.

6 JUDGE KWON: Good morning, everybody. Mr. Krsnik, for you to

7 continue your cross-examination.

8 MR. KRSNIK: [Interpretation] Good morning, Your Honour. Thank

9 you.


11 Cross-examined by Mr. Krsnik: [Continued]

12 Q. [Interpretation] Good morning, Witness. If I remember correctly,

13 my last question yesterday had to do with the security or intelligence

14 service with the acronym of SIS. And if I'm not mistaken, you said you

15 were familiar with the acronym, with the name.

16 A. Yes, I've heard that name before.

17 Q. You know what the purview of SIS is? I'm sorry. It's SIS in the

18 transcript but I that's not what I said. H-I-S, HIS. The same goes for

19 the first question.

20 Let me repeat: Are you familiar with the purview of the security

21 service?

22 A. Not in any depth at all, no.

23 Q. Tell me, do you know and did you enter the archives of the said

24 security services during your work, and are you familiar with the service

25 called UNS?

Page 147

1 A. I've never been in the archives, no. And can you repeat the last

2 part?

3 Q. A service called U-N-S, UNS.

4 A. I'm not familiar with that, no.

5 Q. Would I be correct in understanding from your answers that you do

6 not know anything about the subordination, chain, or chain of command of

7 the services mentioned thus far?

8 A. Not in any detail, no.

9 Q. All right. Let us conclude this part of my questioning. With the

10 help of the usher and with some assistance from my friends from the

11 Prosecution, I would like to put in front of you this visual aid based on

12 the document prepared by the Prosecution concerning Hrvatski List

13 newspaper. OTP 4. [In English] You can put on the ELMO also.

14 Mr. Usher. Mr. Usher --

15 MS. GRAHAM: Your Honours, we could show that on Sanction

16 potentially, as an alternative.

17 MR. KRSNIK: I agree. Certainly. Binder 1.

18 JUDGE KWON: Which one are you referring to, Mr. Krsnik? OTP 4

19 seems to me to be a statement.

20 MR. KRSNIK: [Interpretation] Yes, that is a statement, and it was

21 marked OTP 4, Exhibit OTP 4. Your Honour, I will have Hrvatski List

22 parallel with the exhibit now called OTP 4.

23 MS. GRAHAM: Your Honours, to clarify, I believe that what

24 Mr. Krsnik has before him at the moment is the first demonstrative

25 exhibit, for Hrvatski List, the 18th of November edition. Is that

Page 148

1 correct? Your Honours, that's OTP Exhibit 1.

2 MR. KRSNIK: Exhibit 1. Thank you for your help.

3 Q. [Interpretation] Witness, you stated yesterday that you studied

4 closely this cover page, the text on the cover page of Hrvatski List.

5 A. That's correct.

6 Q. Does this short shrift -- in fact, can you tell the Trial Chamber

7 what is this text in short shrift on the cover page?

8 A. Yes. If I can get a copy of the B/C/S translation of the actual

9 statement.

10 MS. GRAHAM: Your Honours, I think the witness is after Exhibit --

11 what is marked as P11 in the binders. He's after the translation of Van

12 Kuijk's statement itself.

13 JUDGE KWON: Volume 1.

14 MS. GRAHAM: Exactly, in volume 1.

15 MR. KRSNIK: [Interpretation]

16 Q. Witness, let me ask you this way -- let us just wait a moment.

17 Let me ask you this way: What is written in short shrift on the

18 cover page of the OTP 1 document, is it -- it is not the transcript from

19 the closed-session testimony of witness Van Kuijk; is that correct?

20 A. No, that is correct. It is the excerpts from the witness

21 statement, not the transcripts of the trial.

22 Q. A statement that the witness gave to the Office of the Prosecutor

23 of this Tribunal; correct?

24 A. That's correct.

25 Q. Can you tell us where he gave that statement and when?

Page 149

1 A. The date is not shown on the cover page, nor is the date shown on

2 any subsequent page of this exhibit.

3 MS. GRAHAM: For the record, the witness is indicating the

4 edition --

5 JUDGE BONOMY: What is the reference to 1st and 2nd August, 1997?

6 THE WITNESS: I'm sorry, Your Honour?

7 JUDGE BONOMY: What is the reference on the cover -- the front

8 page to "Date of interview: 1st and 2nd, August, 1997"?

9 JUDGE KWON: Mr. Cameron, you have the statement with you?

10 THE WITNESS: Yes, I do.

11 JUDGE KWON: Do you see the dates Judge Bonomy has referred to?

12 THE WITNESS: Blocked out in black, yes.

13 JUDGE KWON: The Judges have unredacted, non-redacted version.

14 That may be why.

15 MR. KRSNIK: [Interpretation] I'm sorry. Maybe there is a

16 misunderstanding here, but there is no redacted version. What Judge

17 Bonomy is asking about is very clear, very visible, and visible also in

18 translation on the first page.

19 JUDGE BONOMY: Well, I was actually referring to the statement

20 itself, which I thought the question related to.

21 THE WITNESS: On the statement itself, it shows the date the 1st

22 and 2nd of August, yes.

23 JUDGE BONOMY: And also in the article it shows the 2nd of August.

24 THE WITNESS: In the blacked-out portion on the lower left-hand

25 corner, it shows the 2nd of August, yes.

Page 150

1 MR. KRSNIK: [Interpretation] That is precisely what I'm trying to

2 clear up, Your Honours. I want to find out what the document is here and

3 what it constitutes, but I'm trying to do that through the witness.

4 Q. Mr. Cameron, have you compared the statement that you have in the

5 Office of the Prosecutor with a document reproduced here in Hrvatski List?

6 A. Yes, I have, and it's consistent.

7 Q. Could you tell me how much time passed after that statement when

8 Mr. Van Kuijk testified in closed session?

9 A. He gave the statement in August, and he testified in December of

10 that same year.

11 Q. In this statement that he provided to the Office of the

12 Prosecutor, is there any indication of confidentiality or secrecy?

13 A. No.

14 Q. When this statement was given to the Office of the Prosecutor, was

15 there a high-ranking officer from the Dutch army present to monitor the

16 provision of the statement?

17 A. Yes, there was.

18 Q. But it is not indicated anywhere.

19 A. I'm sorry?

20 Q. It is not written anywhere on the record. The statement indicates

21 clearly that Mr. Van Kuijk and the interviewer were alone together with an

22 interpreter.

23 A. My apologies. I misunderstood the question. During the

24 statement, it was only Mr. Van Kuijk, no one else.

25 Q. Do you have any knowledge about that closed-session testimony?

Page 151

1 Was it attended by a high-ranking officer from the Dutch army to protect

2 the interests of the Kingdom of the Netherlands for which reason the

3 session was closed in the first place?

4 A. Yes, there was a ranking officer in attendance.

5 Q. On page 7 of the statement given by Mr. Van Kuijk to this Office

6 of the Prosecutor - and I am talking about page 7 of the Croatian

7 statement, in the English version -- it's page 8 in English - it says that

8 Mr. Van Kuijk agreed to testify in public before this Tribunal. Is it

9 written there?

10 A. Yes. What it says is that -- that "I may be called to give

11 evidence in public before the Tribunal."

12 Q. I'm sorry if I'm repeating a question maybe, but I don't remember

13 your answer. How much time passed after the giving of this statement, the

14 one that was reproduced in the Hrvatski List newspaper when Mr. Van Kuijk

15 testified before the Tribunal?

16 A. The statement was in August of 1997, and he testified in December.

17 Q. Have you established whether Hrvatski List ever published the

18 transcript from a closed session?

19 A. Of any closed session?

20 Q. [In English] No. No. [Interpretation] No. The transcript from

21 the closed session where Mr. Van Kuijk testified.

22 A. I found no evidence of that.

23 Q. Just one question in conclusion, not to take any more of our time.

24 Can you just confirm -- it's the second page in the Croatian version of

25 the statement by Mr. Van Kuijk given to this OTP.

Page 152

1 A. Yes.

2 Q. It begins with the third sentence from the bottom of the first

3 paragraph: "I was told that my statement would remain confidential until

4 it is disclosed to the Defence before I am called upon to testify in The

5 Hague."

6 A. Yes. In the English version it says: "I am requested to make a

7 truthful statement of what I personally saw, heard, or experienced in this

8 connection."

9 JUDGE BONOMY: No, it's the next sentence.

10 THE WITNESS: "I've been informed by my statement -- that my

11 statement will be kept confidential until it is disclosed to the Defence

12 before I am called upon to testify in The Hague."

13 MR. KRSNIK: [Interpretation]

14 Q. Of course I may not ask you for any conclusions, but doesn't it

15 transpire very clearly from what is written here that he was completely

16 conscious that his testimony would be public, the same as he agreed to

17 testify in a public session before this Tribunal?

18 JUDGE KWON: Ms. Graham.

19 MS. GRAHAM: Objection. This is not something that the witness

20 can answer, what Van Kuijk himself thought was the position in relation to

21 the taking of this statement.

22 JUDGE KWON: I think he's able to answer the question.

23 THE WITNESS: Yes. Based on the statement itself, it would appear

24 that Mr. Van Kuijk was aware that he may be called to call -- testify in

25 public.

Page 153

1 MR. KRSNIK: [Interpretation] Thank you, Your Honour. I have no

2 further questions, but I need to consult with my colleagues briefly.

3 [Defence counsel confer]

4 MR. KRSNIK: [Interpretation] Thank you, Your Honour. I have

5 completed my cross-examination.

6 JUDGE KWON: Thank you, Mr. Krsnik.

7 Before the Prosecution re-examines the witness, I have one

8 question.

9 MS. GRAHAM: Certainly.

10 Questioned by the Court:

11 JUDGE KWON: Mr. Cameron, as far as you know, based upon the

12 investigation into this matter, I wonder if you can tell us whether there

13 was any reason by the time of the publication of this very article, that

14 is November 2004, there was any reason for the protective measures to

15 continue. I understand -- I understand Mr. Bralo surrendered before this

16 article was published.

17 A. That's correct, Mr. Bralo did -- was surrendered. It's a very

18 difficult question to answer, in a way. The reason for the protective

19 measures, as I understand it, originally were due to circumstances in

20 Bosnia at that particular time. The fact that it had been protected by

21 the court order in the Blaskic case, in my mind, would continue on

22 regardless of the circumstances of the witness. I subsequently spoke to

23 the witness, and by the time that this was published, there was no more

24 personal danger - that's definite - to this witness or to his colleagues.

25 So in that terms, I would agree with Your Honour's supposition that there

Page 154

1 was no longer any real need for the protective measures, however, the

2 protective measures were still in force at that time.

3 JUDGE KWON: But from the outset, the reason for personal

4 protection didn't exist. The reason for granting the closed session was

5 because there was sort of sensitivity on the part of the Tribunal and on

6 the part of the Dutch government, not for the reason of personal

7 protection.

8 A. Not for personal protection of Mr. Van Kuijk. According to

9 Mr. Van Kuijk when I spoke to him, his mission in Bosnia was already over.

10 However, his colleagues in the Dutch Battalion were still in Bosnia, and

11 at that particular time Mr. Bralo was still free, and there was a concern

12 that if this information was published, that this could have repercussions

13 upon the Dutch contingent that was still in Bosnia. It was never an issue

14 of personal security for Mr. Van Kuijk himself; it was for his colleagues

15 still in Bosnia.

16 JUDGE KWON: I think that's --

17 JUDGE BONOMY: Well, just one supplementary question. In November

18 2004, were there Dutch forces in Bosnia?

19 A. Not at that time as far as I know, no.

20 JUDGE BONOMY: So that reason for protective measures has gone by

21 that stage; is that correct?

22 A. I would say so, yes.

23 JUDGE BONOMY: And Bralo had surrendered.

24 A. That's correct.

25 JUDGE BONOMY: So that reason -- the secrecy of the indictment

Page 155

1 reason has gone by then; is that right?

2 A. I would have to agree with that, yes.

3 JUDGE BONOMY: So what reason was there for these protective

4 measures to remain in force in November 2004?

5 A. That's not a question I can really answer, to be honest.

6 JUDGE BONOMY: All right, I think that's a fair comment. Thank

7 you.

8 JUDGE KWON: Ms. Graham.

9 MS. GRAHAM: Yes, Your Honour. Just two points.

10 Re-examined by Ms. Graham:

11 Q. Mr. Krsnik identified with you that there was a period of five

12 months between the time when Van Kuijk's statement was taken and when he

13 testified in the Blaskic trial. From your experience as an investigator

14 at the ICTY, are protective measures reassessed in periods of time of that

15 nature?

16 A. Yes, they are.

17 Q. And one more point. If you can just have a look at the Hrvatski

18 List edition of the 18th of November, 2004. Have you got that before you?

19 A. I do.

20 Q. Thank you. Mr. Krsnik drew your attention to the bottom black

21 box, which contains the text, "On 2 August 1997, Dutchman Johannes Van

22 Kuijk stated in his testimony before The Hague Tribunal ..." and you

23 identified that the witness testified in December 1997, not in August.

24 A. That's correct.

25 Q. From your involvement in the investigation in this case, have you

Page 156

1 got any knowledge of why Hrvatski List might have referred to August as

2 the date of his testimony?

3 A. It became apparent quite early on that there was -- the word

4 "transcript" was used quite often, and it was confusing as to whether it

5 meant a witness statement or the transcript of testimony. In this

6 particular case, we're dealing here only with the witness statement, which

7 was taken in August, not the court transcripts that were a result of the

8 December. And I should also point out that the part in black is not a

9 part of the official statement.

10 Q. Thank you, Witness.

11 MS. GRAHAM: No further questions.

12 [Trial Chamber confers]

13 JUDGE KWON: Thank you, Mr. Cameron. That concludes your

14 evidence. Thanks for coming. You may go now.

15 [The witness withdrew]

16 JUDGE KWON: Mr. Akerson, call your next witness.

17 MR. AKERSON: Your Honour, one small matter before we call the

18 witness, which is that last night we contacted the HINA news agency, and I

19 spoke to -- this is in regards to the article of April 27, 2005.

20 JUDGE KWON: Yes. My question is whether you needed Mr. Cameron

21 for that purpose. Let's go --

22 MR. AKERSON: Well, we have a witness on the witness list who --

23 who is precisely dedicated to this particular issue.

24 JUDGE KWON: Please, let's hear what you were going to say, yes.

25 MR. AKERSON: However, it's such a small point, I was going to

Page 157

1 proffer to the Court, and you can decide whether you want to accept it,

2 however, if you want me to have a witness specifically for this particular

3 point, I'm happy to put it on the stand. But we got a letter from the --


5 MR. AKERSON: -- assistant general manager of the HINA news

6 agency, who pulled the article from the archive and provided it to us.

7 It's a fair and accurate -- what we had presented to the Court is a fair

8 and accurate copy of what is in their archive, and he also has a line in

9 his cover letter on the HINA letterhead which explains that where we

10 retrieved it from is a controlled site; it's a compilation of other news

11 services. I can have the witness who contacted the HINA news agency

12 testify to this or I can proffer this to the Court and you can look at it

13 and make a decision whether you want the witness.

14 JUDGE KWON: Was the letter disclosed to the Defence?

15 MR. AKERSON: We provided it this morning.

16 JUDGE KWON: Thank you. We'll hear from the Defence later on, and

17 we'll take a look at the documents, and after hearing from the Defence,

18 we'll make a determination.

19 MR. AKERSON: All right. I will provide this to the usher, who

20 can ... For the record, I would ask that the April 27th article be

21 admitted into evidence based on this information that's being put before

22 the Court, and I know you're going to defer ruling but I just wanted to

23 make that --

24 JUDGE KWON: That has been noted.

25 MR. AKERSON: And we will call William Tomljanovich to the stand

Page 158

1 at this time.

2 JUDGE KWON: While we are waiting for the witness, I wonder

3 whether Defence is in the position to comment on this matter.

4 Can the documents be handed over to the Bench first of all.

5 MR. KRSNIK: [Interpretation] Your Honour, the Defence states that

6 this morning we received the letter of Mr. Fjodor Polojac, assistant

7 general manager of the HINA agency, confirming that this is indeed the

8 text of HINA's journalist. So we do not object to that. The source is

9 authentic.

10 However, as for the content, I investigated the matter myself

11 yesterday, and I talked to the author of this text, who absolutely

12 presented his readiness to testify here. He said that this was his free

13 journalistic interpretation in terms of how he, that is to say the

14 journalist, understood this and freely interpreted what was said to him by

15 Mr. Rebic and Mr. Marijacic. These are not the words of Mr. Rebic or

16 Mr. Marijacic but, rather, his free journalistic interpretation.

17 JUDGE KWON: Thank you, Mr. Krsnik.

18 [The witness entered court]

19 [Trial Chamber confers]

20 MR. AKERSON: Your Honours, may I just make one brief comment on

21 what Mr. Krsnik said? I --

22 JUDGE KWON: I don't think it's necessary. The Chamber is minded

23 to admit this, because there's no issue of authenticity, and it is

24 relevant and has probative value, and the weight -- although the weight is

25 for the Chamber to determine at the later stage, and it is for the Defence

Page 159

1 to call the author if they so wish it. If they need to.

2 Yes. We will admit the P44 as well as this letter.

3 Could you wait a minute.


5 JUDGE KWON: Could the numbers be given to these exhibits.

6 THE REGISTRAR: Yes. Thank you, Your Honour. The first exhibit

7 is referenced under P44 and will get the exhibit number OTP 16. While the

8 report -- the letter dated 17th of January will receive the exhibit

9 OTP 17. Thank you, Your Honour.

10 JUDGE KWON: With the attachment. I think this is a downloaded

11 page from HINA website, official website. Is it true, Mr. Akerson?

12 MR. AKERSON: That is true, yes.

13 JUDGE KWON: That can be done. Then let the witness take the

14 declaration.

15 THE WITNESS: I solemnly declare that I will speak the truth, the

16 whole truth, and nothing but the truth.

17 JUDGE KWON: Thank you. Please take a seat.


19 JUDGE KWON: Mr. Akerson.

20 MR. AKERSON: Thank you, Your Honour. Your Honour, with the --

21 I'm going to ask the Court for a little latitude in order to lead the

22 witness through the preliminary matters, just to get to the heart of the

23 testimony.


25 Examined by Mr. Akerson:

Page 160

1 Q. Good morning, Mr. Tomljanovich.

2 A. Good morning, Mr. Akerson.

3 Q. Before we begin, I just wanted to re-advise you that you're going

4 to be talking about documents that concern not only Mr. Van Kuijk, whose

5 protection has been lifted, but other witnesses where protections still

6 remain. So if you encounter a witness who you think might be protected,

7 please just refer to that person as "protected witness."

8 A. Okay.

9 Q. And secondly, we are going to be showing documents electronically.

10 If I could just make sure they're not going to be distributed outside the

11 courtroom, published outside the courtroom. Thank you very much.

12 Mr. Tomljanovich, I'm just going to run through some of your

13 educational --

14 A. Yes.

15 Q. You have a Ph.D. from Yale University?

16 A. Yes.

17 Q. In history; is that correct?

18 A. In history, yes.

19 Q. All right, and you wrote your thesis on a subject that is related

20 to the former Yugoslavia?

21 A. Well, 19th century Croatian history, yes.

22 Q. So you are very familiar with Croatia --

23 THE INTERPRETER: Could the speakers please be asked not to

24 overlap each other and pause between question and answer. Thank you.

25 JUDGE KWON: If you can read the transcript, you are being asked

Page 161

1 to -- not to overlap.

2 THE WITNESS: Yes, I heard.

3 JUDGE KWON: And to put a pause between questions and answer.


5 Q. We're going to talk about -- sorry. Let me move -- let me just

6 ask you: When did you begin work at the Tribunal?

7 A. March 2nd, 1999.

8 Q. Okay. And what has been your position at the Tribunal since you

9 started?

10 A. I've been a research officer in the leadership research team of

11 the investigations division of the OTP.

12 Q. And in that position, what has been your primary responsibility?

13 A. Well, primarily, the people in our office are all people who can

14 read B/C/S and have an advanced degree -- something having to do with the

15 former Yugoslavia, and we spend most of our time dealing with political

16 structures in the former Yugoslavia and analysing political structures and

17 dealing very heavily, of course, with documentary evidence.

18 Q. Okay. And we're going to talk about two kinds of documents today;

19 documents that the OTP obtained from Croatian archives and also

20 transcripts from meetings in the Croatian Presidency. What has been your

21 assignment in regards to these two kinds of documents specifically?

22 A. Well, first of all, with the documents obtained from the Croatian

23 archives, I've been working extensively with those documents since they

24 were made available to us, or large numbers of them were made available to

25 us beginning in April of 2000. I went on many of the missions to review

Page 162

1 and copy archival documents, organise some of those missions, analyse

2 those documents and process those documents when they came up to The

3 Hague.

4 Now, with the presidential transcripts, it's the same thing. I

5 reviewed those beginning in May of 2000, took also part in some of the

6 requests for additional transcripts, reviewed the lists of transcripts,

7 and I worked for about one year indexing and cataloguing the collection of

8 transcripts we have in house from the Presidency of the Republic of

9 Croatia.

10 Q. I'm going to -- before we get into the subject of the first

11 document that we're going to be talking about, which is a transcript of a

12 meeting in the Croatian Presidency, I wanted to have the -- hand to the

13 usher for the Court a demonstrative aid, but if you can put on the first

14 Sanction exhibit --

15 JUDGE KWON: I note Mr. Krsnik is on his feet.

16 MR. KRSNIK: I have an objection, Your Honour.


18 MR. KRSNIK: [Interpretation] Your Honours, I really don't know. I

19 have to ask you. Please instruct me, because I don't know what direction

20 this examination is taking. I see that transcripts from meetings in the

21 Croatian Presidency are being referred to. May I ask what this has to do

22 with the indictment due to which we are here today, and what does it have

23 to do with the indictment that we are discussing here today? The office

24 of the president of the Republic of Croatia and these transcripts, what

25 does this have to do with my client Mr. Rebic, and Mr. Marijacic? Please,

Page 163

1 let us not move beyond the scope of the indictment. Let's deal with what

2 the indictment says. Please let us not go beyond that. Honestly, I don't

3 know what this has to do with it.

4 JUDGE KWON: I think Mr. Akerson can clarify this matter.

5 MR. AKERSON: I can. I'm understanding that objection is an

6 objection to the relevance of this material, and there's three points that

7 these documents are relevant to. First, there's an issue that the 2000

8 order deals with publication, that there's a prohibition against

9 publication of material, and in particular this first document that you're

10 going to be receiving into evidence has a transcript of a meeting where

11 Mr. Rebic is sitting with two newspapers with a specific intent of taking

12 a document leaked from the OTP to have it published. One of the issues

13 raised by the Defence is the meeting where they discussed the protected

14 material. This will be clear evidence on the intent of Mr. Rebic that

15 this material he provided to Hrvatski List was going to be published,

16 because he's been doing so since 1997.

17 Secondly --

18 MR. KRSNIK: [Interpretation] That's not correct.

19 JUDGE ROBINSON: Sorry, what is this, some kind of similar fact

20 evidence?

21 MR. AKERSON: Yes, Your Honour. I think it's -- it shows a

22 pattern of behaviour and clear evidence of knowledge and motive. Taken in

23 conjunction with the other documents that we're going to show in which

24 it's on Mr. Rebic's letterhead, signed by Mr. Rebic and/or somebody who

25 was directly subordinated to him where he is distributing ICTY protected

Page 164

1 material, clearly demonstrating that he knows it's protected information,

2 and he's advising others on the nature of those protections, including the

3 specifics of those protections, down to the ID of the witnesses protected

4 and the content of the information that he's protected -- that he's

5 submitting is protected. So it goes to his understanding of the

6 protections that are in order. It's clearly relevant to what we have to

7 prove against -- of his knowledge in this particular case.

8 JUDGE KWON: Thank you, Mr. Akerson. We'll hear from Mr. Ivanovic

9 first. Yes.

10 THE INTERPRETER: Microphone, please.

11 JUDGE KWON: Could you turn on your microphone.

12 MR. IVANOVIC: [Interpretation] I would just like to draw your

13 attention to a mistake that the OTP is making. The Hrvatski List did not

14 exist in 1997, so Mr. Rebic at that time certainly could not have made a

15 decision to publish something or not to publish something in Hrvatski

16 List. As for the rest, Mr. Krsnik is going to deal with that.

17 JUDGE KWON: Thank you. Mr. Krsnik.

18 MR. KRSNIK: [Interpretation] I think that the Office of the

19 Prosecutor will not object when I say that Hrvatski List came into

20 existence in 2004. Secondly, what Mr. Prosecutor said, this is not true

21 in terms of what I read, but we'll deal with the transcripts later. But

22 this happened before 2000. This is a discussion from 1997.

23 And what you said to this Honourable Trial Chamber is that you

24 invoked the year 2000 and you said that that is when it existed, when it

25 did not exist, and I don't see the relevance of this conversation and what

Page 165

1 it has to do with Hrvatski List, and also publishing Mr. Van Kuijk's

2 statement, which is what my client -- well ...

3 [Trial Chamber confers]

4 MR. AKERSON: Your Honour, if I can -- if I can respond, just one

5 quick point.


7 MR. AKERSON: The underlying case where the protections emanate is

8 the Blaskic case. All the documents that -- that -- all the evidence that

9 I'm going to adduce all concern the Blaskic case and the dissemination of

10 protected materials in the Blaskic case. It's directly relevant to the

11 orders that were in -- that would apply in 1997, 1998, when all of these

12 communications were made.

13 And lastly, the evidence will show the extent of the communication

14 that Mr. Rebic had with the Blaskic Defence team, which would tend to

15 prove that it would be more likely that he would have known about the 2000

16 order, which is one of the things that we're specifically required to

17 show.

18 JUDGE KWON: Mr. Ivanovic, do you have anything?

19 MR. IVANOVIC: [Interpretation] Your Honour, I would just like to

20 draw your attention to a fact. The document that was submitted in the

21 Prosecution documents from the president's office is the 7th of May, 1997.

22 The protective measures orders -- order issued in the Blaskic case was

23 issued on the 6th of June, 1997, so all of this happened beforehand, it

24 had nothing to do with it, not even indirectly. I wish to recall the

25 Appeals Chamber ruling of the 26th of January, 2006 [as interpreted] where

Page 166

1 it decided on the foundation for the protective measures from 1996. Thank

2 you.

3 [Trial Chamber confers]

4 JUDGE KWON: The Chamber will grant the Prosecution to lead the

5 evidence, considering that it may be related to the pattern of conduct,

6 the state of his mind, though marginally related, but the weight for it is

7 for the Chamber to determine, and there I thank the Defence for their

8 comment on this matter. That has been noted.

9 MR. AKERSON: I would just like to ask if the demonstrative aid

10 has been -- demonstrative exhibit has been distributed to the Court. I

11 have copies for the Defence as well. And if it could be put up

12 electronically on Sanction but not distributed -- that this would not be

13 distributed.

14 Q. Mr. Tomljanovich, before we get into the presidential transcript,

15 we're going to be talking about, in these documents, names of people and I

16 wanted to give the Court a very, very simple idea of the relationship

17 between the people's names. Do you see a document on the screen in front

18 of you?

19 A. Yes.

20 Q. And it's diagram of the relationship between a few people's names

21 in the Croatian government that are relevant to your examination today.

22 Can you just confirm -- can you just, in a couple of sentences, describe

23 who these people are and their relationship.

24 JUDGE KWON: Just a second. I'd like to ask whether Defence is

25 all right with the last name being shown.

Page 167

1 MR. AKERSON: Can we go into private session for a moment, Your

2 Honour? I think I can address --

3 JUDGE KWON: Yes, go into private session for a moment.

4 MR. KRSNIK: [Interpretation] Please --

5 [Private session]

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 [Open session]


17 Q. Mr. Tomljanovich, in just a couple of sentences, describe who

18 these people are and why they're related in this diagram.

19 A. Well, first of all I should point out --

20 THE INTERPRETER: Microphone for the witness, please.

21 THE WITNESS: Sorry. I should point out on this -- this is an

22 overly -- or a very simplified chart here. It doesn't show the structure

23 of the Croatian intelligence agencies as such, which are -- is there a

24 problem? It doesn't show the structure of the agencies, because there's

25 about a half dozen large agencies. This just shows the reporting that

Page 168

1 goes on in some of the documents which we'll be talking about today.

2 At the -- I'll go from the bottom to the top. At the bottom, we

3 have the security and information service, the SIS, which was the military

4 counter-intelligence agency of the Republic of Croatia, established in

5 1991. And for most of the period we're going to talk about today, in the

6 late 1990s, Ante Gugic was the chief of that agency.

7 His immediate superior was the assistant minister of defence for

8 intelligence and security affairs, which is Markica Rebic.

9 Above him is the minister of defence, to whom he reports, who for

10 most of this period, until his death in May of 1998, was Gojko Susak, who

11 was succeeded by Andrija Hebrang and General Miljevac.

12 And above him in the reporting chain that we see in the

13 correspondence we're looking at today is the president of the Republic of

14 Croatia, Franjo Tudjman.

15 Off to the side, some of this material is also sent to Miroslav

16 Tudjman who was, during most of this period until the spring of 1998 and

17 then again for part of 1999, the chief of the Croatian reporting service,

18 which was the foreign intelligence agency of the Republic of Croatia.

19 Mr. Miroslav Tudjman is the son of President Franjo Tudjman. And

20 he's not in the same -- he's not connected with this same chain of

21 subordination in the Ministry of Defence.

22 Q. And while communication probably generally followed this line of

23 communication, are there exceptions where individuals in this chain of

24 command also communicated directly to people above or below them not in

25 this clear chain of command?

Page 169

1 A. Yes.

2 Q. Okay. I'm going to move on now to the transcripts of the Croatian

3 Presidency. We're going to be presenting one document to Your Honours

4 today.

5 Mr. Tomljanovich, how did -- how did it come to be that meetings

6 in the Presidency of Croatia were recorded and transcribed?

7 A. Well, I think Judge Robinson may remember this from the Kordic

8 trial: President Franjo Tudjman recorded some of his meetings in his own

9 office and elsewhere, beginning at least in 1991 and continuing until his

10 death in 1999. That was done by staff of his own office, two of whom

11 testified, I think it was in closed session, or at least with protection

12 for their names, in the Kordic trial.

13 JUDGE KWON: Mr. Krsnik.

14 MR. KRSNIK: [Interpretation] Your Honour, I'm happy that the

15 witness reminded Judge Robinson of the matter of transcripts. The

16 transcripts never received official authorisation nor did we have them in

17 the official documentation of this Tribunal. The transcripts were never

18 included in the trial or the judgement in Kordic case. Until this day,

19 this Tribunal never accepted transcripts or accepted their authenticity.

20 Many witnesses have been questioned to this issue, and it was established

21 many times the transcripts have no basis, either in video material or

22 audio material or CDs. Croatian courts made their decision, rather, a

23 series of decisions, maintaining that they're not authentic, and the

24 Croatian law from 1999 under one minister, and then under another minister

25 in 2000, sealed the transcripts for 30 years so that they would not be

Page 170

1 manipulated precisely because their authenticity has not been established,

2 and that was my main, primary reason.

3 We will be discussing transcripts here and dealing in high level

4 policies whereas my client was charged with Novi List -- rather, Hrvatski

5 List. Look at what we are discussing here: The structures of a state

6 whereas President Tudjman, as you know, has been dead for six years.

7 Mr. Susak has been dead for seven years, et cetera. We are now listening

8 to a professional investigator of the OTP who will now be lecturing us on

9 the subject, and after that I will have to cross-examine for God knows how

10 long because I will have to go through all these questions.

11 Listening to what he's saying, I will of course have to

12 cross-examine at length, then call witnesses I hadn't intended to call,

13 and then call witnesses who attended the meetings - those who are alive,

14 at least - to see -- to try to prove my point about the transcripts.

15 Thank you for hearing me.

16 JUDGE KWON: So your opposition is mainly related to the admission

17 of transcripts.

18 MR. KRSNIK: [Interpretation] Absolutely. Because, Your Honour,

19 that would really force me to call witnesses to deal with it, because

20 those transcripts have never proven to be authentic.

21 JUDGE ROBINSON: You say they were rejected in Kordic? You say

22 the transcripts were rejected in the Kordic case?

23 MR. KRSNIK: [Interpretation] Yes, yes. As far as I remember,

24 towards the end of debate in Kordic, the Prosecution tried, towards the

25 end of the trial, to introduce transcripts, to have them admitted, but

Page 171

1 Judge -- late Judge May refused.

2 JUDGE ROBINSON: The purpose for which their admission is being

3 sought today is not the same as the purpose for which their admission was

4 being sought in Kordic. We'll have to consider it.

5 MR. AKERSON: Your Honour, if I can respond. I -- Defence counsel

6 is of course obligated to attack the -- I mean, one of the things that he

7 could choose to attack on cross-examination is the credibility of these

8 transcripts. This witness will -- he can testify to the reason, I think,

9 that the transcripts were not admitted in Kordic, which don't relate, in

10 my understanding, to their authenticity or their credibility. It was a

11 different reason. But I'm going to lay the foundation and he's free to

12 try to establish that they are not authentic, and the Court can give them

13 whatever weight they want. I don't think this deals with the

14 admissibility, which has already been ruled upon. What Mr. Krsnik is

15 raising are questions of the weight of the evidence, and that has to be

16 determined by you at the end of this trial, but I think, you know, we need

17 to move on and just get this into evidence and you can give it whatever

18 weight you want.

19 JUDGE KWON: So Tomljanovich -- Mr. Tomljanovich can give evidence

20 as to how the OTP got in possession of those documents --

21 MR. AKERSON: That's -- that's the next question. I was just

22 talking to him about the process by which these were transcribed and then

23 I have a series of questions related to the reliability of these

24 transcripts. I think Mr. Tomljanovich can even talk a little bit about

25 the Kordic trial because he's been involved in these transcripts for six

Page 172

1 years.

2 JUDGE KWON: He's not in the position to give evidence as to the

3 very authenticity of the document itself.

4 MR. AKERSON: No, he is. He -- we relied on them because we had

5 to form a basis in the OTP that they were reliable documents, and so we've

6 done that through various means. And when you hear that evidence, then

7 it's -- then you can give that whatever weight you want and it can be --

8 it can be challenged on cross-examination and then on the totality of the

9 evidence, you can determine what weight you want to give these. But it's

10 our position that they are true and accurate copies of transcripts that

11 were made of meetings. They represent what was actually said in the

12 meetings, and they are authentic and should be admitted.

13 JUDGE KWON: I noted, Mr. Krsnik, you were on your feet.

14 MR. KRSNIK: [Interpretation] Your Honour, I am trying to be guided

15 by common sense, as Judge Bonomy advised. I have been reckoning that this

16 trial would be flexible, but if we go on with attempts to prove various

17 points this way, then the Defence will have to change its position and

18 call a much greater number of witnesses.

19 If we try to stick to our previous resolution and treat this as

20 simple, straightforward, we could maintain our -- our previous decision.

21 But if the Prosecution goes on this way ...

22 [Trial Chamber confers]

23 MR. AKERSON: If I could just make one other comment.

24 JUDGE KWON: We will allow the Prosecution to lead the evidence.

25 However, we'll determine the admissibility of that transcript after having

Page 173

1 heard the cross-examination from the Defence. But I would like the

2 parties to move on expeditiously.

3 MR. AKERSON: I'll get through this very quickly, thank you.

4 Q. Mr. Tomljanovich, how many of the presidential transcripts does

5 the OTP have in its general collection?

6 A. Well, the number is exactly 666.

7 Q. And how many of these transcripts have you personally reviewed and

8 analysed?

9 A. All of them. And if I could, I would like to add one thing about

10 Mr. Krsnik's comment just a minute ago about the admissibility of the

11 documents.


13 JUDGE BONOMY: Why not just answer the questions you're being

14 asked.

15 THE WITNESS: I'm sorry. Okay.


17 Q. Just answer the questions. That may come up in cross-examination,

18 but let's just move on.

19 A. Okay.

20 Q. From your knowledge of these transcripts, what was the process by

21 which they were made in President Tudjman's office?

22 A. President Tudjman's staff placed microphones in two rooms in the

23 Presidency; one room next to his office and another larger conference

24 room. That was connected to recording machinery. The stenographers were

25 in a separate room, listening to the tapes, and as the tapes were being

Page 174

1 made, the stenographers were making stenographic transcripts of the

2 meetings as they went along. This would be checked against the tapes and

3 then it would be filed in the archive of the Presidency.

4 In some cases, meetings were taped which were not on the premises

5 of the -- of the Presidency. In that case, tapes were made remotely and

6 then brought back to the stenographers of the Presidency.

7 Q. And how do you know about this process?

8 A. From having -- well, both proofed and listened to the testimony of

9 the persons who actually made these transcripts in the Kordic trial.

10 Q. And were they professional transcribers, to your knowledge?

11 A. Yes. Yes. One of them was one of the women who was transcribing

12 the documents, the other was the gentleman who actually took care of the

13 recording equipment.

14 Q. And when the transcribers checked the accuracy of their

15 transcription against the recording, what -- against the audio tape of the

16 recording, what did they do with that tape?

17 A. You mean over the long run.

18 Q. Over the long run.

19 A. Yeah. Generally speaking, once the transcripts had been made,

20 they would tape over the cassette tapes they were using. Generally

21 speaking.

22 Q. Okay. So the final product of the transcription was the physical

23 paper transcript?

24 A. Yes.

25 Q. Which had been transcribed by a professional stenographer, checked

Page 175

1 against an audio recording, and then filed in an archive?

2 A. Yes.

3 Q. Now, how has the OTP been able to check or assess that these are

4 accurate transcripts of these meetings? In other words, are there

5 secondary sources of the content of these meetings which can be compared

6 against the transcripts?

7 A. Well, yes, as a matter of fact. With a collection of this size

8 and of this breadth, you have to imagine not only it's 600-odd transcripts

9 we have in our possession, some of these meetings are quite long, go on

10 for many hours, and involve sometimes dozens of participants. So the

11 amount of detail and references to events outside of the transcripts is

12 very great, and all of that can be checked against the transcripts.

13 Furthermore, individuals who took part in those meetings have

14 authenticated the transcripts, and beyond that, in some instances

15 individuals who were at the meetings taking notes, we've had access to

16 their notes, which match the transcripts as well.

17 And on some occasions with some of the later transcripts, the

18 audio recordings do survive, and we've checked a number of audio

19 recordings.

20 Q. If I could just advise you, I think only one of your microphones

21 is turned on. If you could turn on the other microphone.

22 A. Okay.

23 Q. I want to talk about -- without using the name -- without

24 mentioning the name of the witness that we had discussed in our proofing

25 session, there was a witness who took copious notes of meetings. Can you

Page 176

1 tell the Court about that particular witness.

2 (redacted)

3 (redacted)

4 (redacted)

5 A. Am I not allowed to mention his name?

6 Q. Don't mention his name. Don't give any more descriptive

7 information.

8 A. Okay. Well, an American diplomat who has testified in a number of

9 cases here and took copious notes of all his meetings, and I've had the

10 opportunity to check his notes against the meetings he was present in.

11 Q. And how did they compare with the transcript of those meetings?

12 A. Very well. His note taking was really outstanding.

13 Q. So they -- his notes of the meeting corroborated the accuracy of

14 the transcript of the meeting?

15 A. Yes.

16 Q. Okay. Now, moving on to the audiotapes, how many audiotapes did

17 survive from this transcription process?

18 A. That I don't know exactly.

19 Q. How many are in our possession?

20 A. I believe four or five are in our possession. In the archive of

21 the Presidency, there's quite a few more audiotapes, but I haven't

22 listened to those and they're not in our possession.

23 Q. And of the audiotapes that are in the possession of the OTP, have

24 you reviewed the audio and compared it to the transcripts to verify the

25 transcripts are true and accurate copies of the meetings?

Page 177

1 A. Yes, I have.

2 Q. Now, what about the content of these transcripts? I want to ask

3 you, because you've reviewed so many of these transcripts, over 600, does

4 the content of these transcripts themselves -- or itself, suggest that

5 these are fair and accurate transcripts of the meetings --

6 A. Yes.

7 Q. -- which they record? Okay. And so you're confident that the

8 transcripts of the presidential meetings that you've reviewed are true and

9 accurate transcripts of the meetings they record?

10 A. Yes.

11 Q. Okay.

12 MR. AKERSON: I'd like to present the witness with a document

13 that's been previously marked as Prosecution Exhibit 7, and I'm providing

14 to him both the English and the B/C/S versions of this document.

15 JUDGE KWON: Mr. Akerson, may I just ask the witness as a matter

16 of fact, which may not necessarily be determinative of the issue here,

17 were the transcripts admitted in Kordic? Because I can't remember.

18 THE WITNESS: We only submitted one transcript during the

19 Prosecution case. That transcript was admitted. We then came into

20 possession of additional transcripts later, and I'm not entirely sure

21 looking back on it, but I think the issue was the fairness and the late

22 submission of -- and I believe as well Judge May mentioned redundancy as

23 an issue with those transcripts, which came in very late. And if I may, I

24 could also -- I'd also like to comment on the admission in the Tuta/Stela

25 trial.

Page 178

1 JUDGE ROBINSON: No. Not now.

2 THE WITNESS: No? Okay.

3 JUDGE ROBINSON: I'll have the matter checked anyhow.

4 Yes, Mr. Akerson.

5 JUDGE KWON: Microphone.


7 Q. Mr. Tomljanovich, do you have two documents in front of you that

8 are marked as Prosecution Exhibit 7 and 7/E, which is the translation of

9 those documents?

10 A. Yes.

11 Q. And can you identify those documents for the Court, please.

12 A. This is the minutes of a working meeting held in Franjo Tudjman's

13 office on the 7th of May, 1997, at 6.30 p.m.

14 Q. What is the date of this meeting?

15 A. 7th of May, 1997.

16 Q. Could I ask that this document be put up electronically in

17 Sanction. And I just want to advise you again that this meeting concerns

18 a protected witness still in the Blaskic case, so do not mention him by

19 name.

20 A. Mm-hmm.

21 Q. And this document should not be broadcast outside the courtroom.

22 Who are the participants in this meeting?

23 A. Well, the participants in this meeting are President Tudjman

24 himself; Nenad Ivankovic, who was an editor at the daily paper Vjesnik at

25 the time; Gojko Susak, who was the minister of defence at the time; Branko

Page 179

1 Tudjen, who was an editor at Vecernji List, which is a daily tabloid in

2 Zagreb; Markica Rebic, who was assistant minister of defence at the time;

3 and I believe as well Mr. Goran Radin appears, but just briefly, in the

4 transcript. He's one of the president's advisors.

5 Q. So there's two newspapers in this meeting; Vecernji List and

6 Vjesnik.

7 A. Yes.

8 Q. And what is the -- what is the nature of this meeting? What are

9 they discussing?

10 A. They're -- the persons in this meeting have in their possession a

11 witness statement which was given to the OTP by the particular protected

12 witness whose name we see here, and most of the discussion in this meeting

13 is about the statement itself as well about -- as well as to when they

14 should release it to the newspapers and how they should release it to the

15 newspapers.

16 Q. And is Mr. Rebic participating in this meeting?

17 A. Yes, actively.

18 Q. Okay. And can you go to page 3, the English transcript, and

19 explain to the Court what this particular passage or section of the

20 transcript is referring to.

21 A. They're discussing how they're going to publish this.

22 Mr. Ivankovic says that there will be need for an introduction, and the

23 president says that the Blaskic Defence team got the document. And then

24 on the next page -- on the video we don't have that page up. Thank you.

25 Or do we? Yes. Mr. Rebic then says that he's spoken to the Defence

Page 180

1 attorney Nobilo and that he's not against this. Quite on the contrary, he

2 says it would be good to publish this statement but that they can't

3 mention that he gave it to them because that would be a violation of

4 confidentiality.

5 Q. Okay. So Mr. Rebic is expressing concern that the document is

6 protected and it could expose Mr. Nobilo to liability.

7 A. Yes.

8 MR. KRSNIK: [Interpretation] Your Honour. Your Honour.

9 JUDGE KWON: Mr. Krsnik, yes.

10 MR. KRSNIK: [Interpretation] There is a slight discrepancy in the

11 translation. In English it says [In English] "Confidential"

12 [Interpretation] whereas in Croatian we read something quite different.

13 Maybe it's similar, but it is different, and it's extremely illiterate,

14 ungrammatical, as all transcripts are, and it's very difficult to follow

15 them. But we'll deal with it in cross-examination. The English version

16 is much nicer, reads much better than the Croatian original.

17 The literal translation is that Mr. Nobilo has nothing against it.

18 On the contrary, he also says it would be good to publish it, but it

19 should not be quoted that he had provided it because he had to support

20 confidentiality, discretion. That's what we read if we see -- if we

21 translate literally the Croatian text.

22 JUDGE KWON: Thanks for the clarification. Please go on.

23 MR. AKERSON: Your Honour, I would ask that if Defence counsel has

24 a question about any translation, he can ask the Court interpreters to

25 read the B/C/S version of the document.

Page 181

1 JUDGE BONOMY: But the problem arose because the witness

2 paraphrased the content of the transcript. If he had read the transcript,

3 then there wouldn't have been an issue, because the word "advocate"

4 appears in the transcript in English.

5 MR. AKERSON: I will address this, Your Honours.

6 Q. Can you read this passage in the B/C/S form --

7 MR. AKERSON: Or, Your Honours, can I have the court interpreters

8 translate this? I can put the B/C/S version on the screen and we can --

9 JUDGE BONOMY: The point's resolved. We can move on to something

10 else that might be relevant to the case.


12 Q. What is the next passage here, Mr. Tomljanovich?

13 A. The next passage after Mr. Rebic's comment. They then discuss --

14 would you like me to read it or would you like me to paraphrase it?

15 Q. Go ahead and read it.

16 A. Okay. Then Mr. Rebic says: "I would present it like this. I

17 mean --" well, no, I'm sorry. I'll start with President Tudjman then.

18 President Tudjman says: "Then it should be said that he went in and that

19 he did that within the process against Blaskic." And then Mr. Rebic

20 says: "I would present it like this. I mean, I don't know. I would give

21 it as a proposal. I would make a series of articles of that. First that

22 it -- what would appear would -- first what would appear would be the

23 commentary on the first page in Vjesnik, like it is in the source --"

24 JUDGE KWON: Mr. Ivanovic.

25 MR. IVANOVIC: [Interpretation] It's not written anywhere "a series

Page 182

1 of articles."

2 MR. KRSNIK: [Interpretation] The Croatian original never mentions

3 what we are hearing from the witness in the English version. I can read

4 to you, with the help of the interpreters.

5 JUDGE KWON: Is the witness able to read the B/C/S? Could you do

6 that?

7 THE WITNESS: Yes. Would you like me to read the same passage

8 from Mr. Rebic here in the B/C/S original out loud?


10 THE WITNESS: Okay. This is Markica Rebic. [Interpretation] I

11 don't know whether I would make it as a proposal. I would make a sausage

12 out of it."

13 MR. KRSNIK: [Interpretation] Full stop. Full stop.

14 THE WITNESS: Shall I continue?


16 Q. Yes.

17 A. [Interpretation] First -- the first thing that would come out

18 would be a comment on the cover page of Vjesnik, something like this:

19 From sources close to the ICTY through our observers, news was received,

20 or obtained, and then only the basic contents would be indicated. Full

21 stop.

22 Q. Let me just ask a question now that -- the English translation

23 that the Court has in front of it indicates that the B/C/S passage says

24 series of articles.

25 A. Uh-huh.

Page 183

1 Q. The court interpreters have interpreted that as "sausage."

2 A. Uh-huh.

3 Q. Can you comment on the discrepancy between those two?

4 A. Well, I imagine that when Mr. Rebic was talking about making a

5 sausage, he was speaking figuratively.

6 JUDGE BONOMY: You don't need to -- the witness should -- sorry.

7 The witness's job is to translate. The witness's job is not to comment,

8 in answer to that question, on what was intended by the comment.

9 JUDGE KWON: Please bear that in mind, Mr. Tomljanovich.


11 JUDGE KWON: Please go on, Mr. Akerson. We will have three

12 minutes to --

13 JUDGE BONOMY: Can I, before you move on, ask a question. Do all

14 of these articles relate to the same protected witness in the Blaskic

15 case?


17 JUDGE BONOMY: All right, thank you.

18 MR. AKERSON: I'm now going to present --

19 JUDGE KWON: Microphone.

20 MR. AKERSON: -- to the witness what has been marked as

21 Prosecution Exhibit 9, and 9B, which is in Your Honours' first binder.

22 JUDGE KWON: Which has been already admitted.

23 MR. AKERSON: It's admitted as OTP Exhibit ...

24 JUDGE KWON: Number 3.


Page 184

1 Q. Mr. Tomljanovich, I'm showing you an order from the Blaskic trial.

2 And if Your Honours could look at the next slide. If you can put

3 the next slide in Sanction up on the screen.

4 This is a passage from that order, and can you confirm that the

5 two newspapers referred to in the Blaskic order are the same newspapers

6 that had participated in -- as -- with the editors of those newspapers in

7 that meeting?

8 A. Yes; Vecernji List and Vjesnik.

9 Q. Okay. Let's go on to the next document. These are documents from

10 the Croatian archives.

11 JUDGE KWON: Mr. Akerson, whether this is appropriate time for the

12 break.

13 MR. AKERSON: That's fine, yeah.

14 JUDGE KWON: Okay. We'll break for 20 minutes.

15 --- Recess taken at 10.30 a.m.

16 --- On resuming at 10.56 a.m.

17 JUDGE KWON: Mr. Akerson, for you to continue your examination.

18 However, given the short period of time scheduled to take place for this

19 trial, we have to focus on the main points. Please move on very

20 expeditiously.

21 MR. AKERSON: All right, Your Honours. I'm just going to lead for

22 a very short period of time to get through the preliminary matters

23 regarding documents from the Croatian archives.

24 Q. Mr. Tomljanovich, the OTP went in missions -- in three waves of

25 missions to review large collections of documents that were contained in

Page 185

1 Croatian governmental archives in 2000, 2004, 2005; isn't that correct?

2 A. Well, yes. Actually, there were more waves of missions than that,

3 but there's three that are relevant to us, I think, today.

4 Q. All right. And you participated materially in those missions?

5 A. Yes. The ones in 2004 and 2005, I organised myself.

6 Q. How many missions have you gone on to inspect documents,

7 governmental documents, in Croatia, can you estimate for the Court?

8 A. Quite a few times. I haven't been keeping count, but about a

9 dozen times in the last five years.

10 Q. 2000, the documents principally reviewed and analysed were a large

11 collection of HVO documents; is that correct?

12 A. Yes. In mid-2000, we received access to the large collection of

13 HVO documentation --

14 JUDGE KWON: Mr. Krsnik.

15 MR. KRSNIK: [Interpretation] Your Honour, could I please ask the

16 Trial Chamber to react now. Now we've touched upon the HVO, which is the

17 army of another state, Bosnia-Herzegovina, as the Trial Chamber

18 undoubtedly knows. Are we going to allow that topic too? If you think it

19 is inappropriate to start discussing it now, could you please rule

20 accordingly. Thank you.

21 JUDGE KWON: Could we not wait until -- until we hear what it is

22 about?

23 Please go on.


25 Q. So in 2000, you go down, inspect a lot of documents that are in

Page 186

1 this large collection, largely of HVO documents. September of 2004, you

2 go and inspect a different collection. What collection of documents is

3 that principally?

4 A. At the end of 2000, we were assured by the authorities in Croatia

5 that all -- that all materials coming from -- that all materials in their

6 possession from the HVO had been placed in the state archives. In

7 mid-2004, it came to our attention that there was another collection of

8 documents in the Republic of Croatia which we had not yet seen. We made

9 it -- we were not sure initially if these documents were copies of

10 documents we'd already seen or if these were actual materials that were

11 new to us.

12 We discovered, after having obtained access to them in the summer

13 of 2004, that a great deal of this material was in fact new to us and very

14 relevant to appeals which were then pending.

15 Q. Let me intervene because the main point I want to make here is

16 this is a different collection. You went on a number of missions to

17 review a number of documents; isn't that correct?

18 A. Yes.

19 Q. And one of those collections included a collection of documents

20 caught the Blaskic collection. That was 94 binders of material including

21 evidence from the Blaskic trial?

22 A. Yes. That was the -- this is the material I'm discussing just a

23 minute ago. There were a number of collections within that group of

24 documents. One group was called Tihomir Blaskic documents. Another group

25 of documents was called documents originating from or copied by Dario

Page 187

1 Kordic. Another collection, subcollection in this larger collection, was

2 documents of the HVO which had been used as attachments in reports of the

3 Republic of Croatia SIS. And there was also a couple of other smaller

4 collections which aren't of any particular interest except for videos.

5 Q. 2005, a six-person team went down to analyse documents of about

6 112 binders of material in the third main mission to inspect these

7 Croatian documents. Is that true?

8 A. Yes. That was a follow-up to this first mission, and I believe it

9 was seven persons. I include myself.

10 Q. Okay. You go to Croatia. You are reviewing documents in an

11 archive. When you find a document that appears to have evidentiary value,

12 you execute a form, you receive a copy, and that copy that you receive

13 from the archivist in Croatia is then verified by you or the OTP staff

14 member that it's an accurate copy of what's in the archive; isn't that

15 correct?

16 A. Yes. The specifics of how we operate in different sites may be

17 slightly different, but we always confirm the copies are what we ordered.

18 Q. All right. And once the copy is obtained from us, we -- the OTP's

19 process would be to transport it to its evidence vault here in The Hague,

20 either by courier or by diplomatic pouch; isn't that correct?

21 A. Yes. Generally speaking, yes, although I should add that from

22 2000 -- late 2000 until early 2004 some documents were initially processed

23 in the field office in Zagreb and then eventually sent up to the vault by

24 the means you indicated, but that was because of the volume.

25 Q. Okay. The documents that we're going to be seeing today, do they

Page 188

1 -- are you familiar with all of these documents?

2 A. Yes.

3 Q. And are they fair and accurate copies of documents that were in

4 the Croatian archives at the time that the OTP had identified them as

5 having evidentiary value?

6 A. Yes.

7 Q. Now, let's go to the specific documents. Before I present a

8 document to you -- before I present the first document to you, were there

9 documents in this collection that involved Mr. Rebic?

10 A. Yes, quite a few.

11 Q. And the agency that he was in charge of, the SIS?

12 A. Yes, quite a lot.

13 Q. And did these documents refer to specific operations that -- that

14 the SIS was involved with, the Blaskic trial?

15 A. Well, yes. And not only the Blaskic trial but all of the cases

16 here at the ICTY in which Croat defendants were involved.

17 Q. The operations I'm referring to are OA Haag, OA Istina, OA Put, OA

18 Arhiv. Can you tell the Court what these operations are?

19 A. Well, you've mentioned a few different ones here. For the most

20 part, these are operations involving mainly the Croatian secret police

21 authorities, designed to assist the Defence of indicted Croats at the

22 ICTY. That would be the case for OA Haag, and OA Put, and also OA Proces,

23 and also in later times OA Sigma. OA Arhiv was a separate operation

24 designed to move, or intending to move archival materials from Bosnia and

25 Herzegovina to Croatian army barracks in Borongaj in Zagreb.

Page 189

1 JUDGE KWON: Mr. Krsnik is on his feet. Yes?

2 MR. KRSNIK: [Interpretation] Your Honour, I want to put a

3 completely different question, so could you please clarify this: Could

4 you please ask the witness, on the basis of what we know and what we saw,

5 all these documents are marked strictly confidential, military secret. It

6 is highly secretive, the highest level of confidentiality. I cannot allow

7 myself to be criminally responsible once I go back to my country.

8 When I come back, the Croatian authorities are going to say, "Why

9 did you not stop the confidential materials of the Croatian state being

10 exposed in public session?" There are no representatives here of the

11 Croatian state - I don't know why - but can this be stated in public?

12 You may recall that the government of the Republic of Croatia

13 before this Court won its case in the subpoena duces tecum proceedings

14 when this Court in its judgement exactly specified which documents can be

15 sought and indeed received and discussed. That was the Chamber that was

16 presided over by the former President of the Tribunal, Gabrielle Kirk

17 McDonald. And I would really like to know whether there is no longer a

18 sign of confidentiality on these documents. Is there a relevant decision

19 to that effect taken by the Croatian government? So can this be discussed

20 in public?

21 Thank you very much.

22 JUDGE KWON: I thought we would come to the issue very soon, but,

23 Mr. Akerson, could you clarify this matter, whether these matters can be

24 discussed in open session.

25 MR. AKERSON: The documents that I'm about to present should not

Page 190

1 be broadcast but not for the reasons that Mr. Krsnik is explaining. They

2 shouldn't be broadcast because they pertain to the protected witnesses

3 still in the Blaskic trial.

4 These documents that are in our possession were turned over by the

5 Croatian authorities pursuant to their treaty agreement with us --

6 JUDGE KWON: Without any conditions.

7 MR. AKERSON: Yes. Yes. These are documents that are available

8 for use.

9 JUDGE KWON: Thank you.


11 Q. I would now like to present two documents --

12 JUDGE KWON: Mr. Krsnik.

13 MR. KRSNIK: [Interpretation] Your Honour, I am not a person who is

14 easily frightened, and I've been an attorney-at-law for the past 25 years,

15 thank God. So when a document says defence, military secret, strictly

16 confidential, according to our laws is the highest degree of protection.

17 I would like to see a document issued by the Croatian government giving

18 approval for these documents to be discussed in public.

19 Imagine this kind of thing happening in America. Imagine if a

20 document marked this way would be presented before a court of law in the

21 States. I really wonder what would happen to my colleague in that case if

22 he did not have government approval to disclose this kind of document.

23 JUDGE KWON: Can I ask, Mr. Krsnik, whether you are making this

24 opposition on behalf of the government of Croatia.

25 MR. KRSNIK: [Interpretation] No, indeed not, Your Honour. I just

Page 191

1 don't want to expose myself to possible prosecution in my own country once

2 I get off the plane. Of course this is not premeditated in any way, and

3 there is no intent on my part.

4 JUDGE KWON: But we heard from the Prosecution in express term

5 that they received a clear go from the Croatian government. So it is the

6 Prosecution's responsibility.

7 MR. KRSNIK: [Interpretation] Of course. In that case, in Croatia,

8 criminal proceedings will be instituted against the Prosecutor if he did

9 not have approval from the Croatian government. Thank you very much.

10 JUDGE ROBINSON: Mr. Krsnik, the Prosecutor is an officer of this

11 court and we must accept his word that he received approval from the

12 Croatian government without any conditions.

13 JUDGE KWON: Let us proceed.

14 MR. KRSNIK: [Interpretation] Thank you very much, Your Honour.


16 Q. If I could have the usher present to the witness a document which

17 has been previously marked as Prosecution Exhibit 16, which I believe is

18 in binder 2 document -- of your documents. And if you could put that

19 electronically on the screen. Just the English version on the screen,

20 please.

21 Mr. Tomljanovich, we're going to move through these documents

22 pretty quickly.

23 A. Yes.

24 Q. Could you identify this document, please, by first starting with

25 the date, author, and recipient.

Page 192

1 A. This document was written on the 24th of December, 1997, and it's

2 signed by Ante Gugic, who at the time was a director of the SIS, on behalf

3 of his immediate superior, Assistant Minister Brigadier Markica Rebic, and

4 it's being sent to the minister of defence, Gojko Susak, and the head of

5 the Croatian Information Service, Miroslav Tudjman.

6 Q. I just want to remind you that this document contains the name of

7 a witness who is protected and you shouldn't mention the witness's name.

8 A. Yes.

9 Q. How and when did this document come into the possession of the

10 OTP?

11 A. This is one of the documents we reviewed on this mission in

12 January 2005. It was in a binder which was given to us by representatives

13 of the Ministry of Defence, the Republic of Croatia. We ordered the copy

14 through the Office for Cooperation for -- with the ICTY, and the copy was

15 delivered to the Zagreb field office of the ICTY on 21st of February,

16 2005.

17 Q. And is this -- sorry. Is this document a fair and accurate copy

18 of the document that was in the Croatian archive?

19 A. Yes.

20 Q. And just to remind the Court, Mr. Gugic is a direct subordinate of

21 Mr. Rebic, and he is sending this letter on Mr. Rebic's behalf?

22 A. He was in December of 1997, yes.

23 Q. And can you explain to the Court the purpose of this letter? Why

24 don't you read the passage instead of explaining. Why don't you read this

25 passage that's highlighted there in the document before you.

Page 193

1 A. Before I read the passage that's highlighted, I'll mention first

2 that it's a cover letter which accompanies closed-session testimony from

3 the Blaskic trial, and then in the highlighted portion, it reads:

4 "The witness in this case is a protected witness according to the Rules of

5 Procedure and Evidence of the ICTY, and in this way, his name and the

6 content of his testimony are protected from public knowledge, so that the

7 release of any part of the attachment of this memorandum would constitute

8 a grave violation of international law."

9 Q. Okay. Thank you. I'm going to go to the next document now, which

10 has been previously marked as Prosecution Exhibit 17.

11 MR. AKERSON: Your Honour, I'm going to tender all these documents

12 at one time rather than making individual tenders.

13 JUDGE KWON: Yes. We'll deal with it later.

14 MR. AKERSON: And can the electronic version of this document be

15 put on screen if it's not already.

16 Q. Mr. Tomljanovich, do you have in front of you a document that is

17 identified as Prosecution Exhibit 17?

18 A. Yes.

19 Q. And can you identify this document starting with the author and

20 the intended recipient and the date?

21 A. This is a letter from Assistant Minister Staff Brigadier Markica

22 Rebic, signed and stamped, to the director of the Croatian Information

23 Service, Miroslav Tudjman, and the date is 11th of February, 1998.

24 Q. And this letter is on the official letterhead of Mr. Rebic?

25 A. Yes. It's the letterhead of his office, the office of the

Page 194

1 assistant minister for security, and it has the serial number

2 corresponding to that office.

3 Q. And it contains a signature and a stamp and office, an official

4 office stamp?

5 A. Yes.

6 Q. And this letter occurs after the exhibit that we just discussed

7 and references that exhibit, which is Prosecution Exhibit 16?

8 A. Yes, it does. On -- I guess it's third line in both the original

9 and the translation, the date and serial number of that previous letter is

10 cited.

11 Q. And can you please go down to what is the last paragraph in this

12 letter and read what Mr. Rebic at that time is advising Miroslav Tudjman.

13 JUDGE KWON: Without revealing the name.

14 MR. AKERSON: Of course.

15 THE WITNESS: "... a protected witness, is a protected witness

16 according to the Rules of Procedure and Evidence of the ICTY, and in this

17 way, the name and content of his testimony are protected from public

18 knowledge, so that the release of any part of the attachment of this

19 memorandum would constitute a grave violation of international law."


21 Q. Thank you. This document, is it a fair and accurate copy of the

22 document that you analysed in the Croatian archive?

23 A. Yes, it is, and I should add that the redaction in the original --

24 or in the copy we have here, in the B/C/S original, was made by the

25 Ministry of Defence of the Republic of Croatia before we reviewed the

Page 195

1 material.

2 Q. Thank you.

3 JUDGE KWON: How do you know that, the redaction was done by the

4 Croatian government?

5 THE WITNESS: Yes, I do. We were told -- well, in particular,

6 when we were reviewed these materials, we were informed of the redactions

7 which were made by various agencies. In the case of the Ministry of

8 Defence, when we received the copies of these documents, we -- they also

9 included -- and this was only the Ministry of Defence, the other agencies

10 did not do this -- they provided us with an accompanying document which

11 explained why they'd redacted what they'd redacted. Usually making --

12 usually they invoked, I believe -- I don't know the rules that well, I'm

13 not a lawyer, but I think it was Rule 54 bis.

14 JUDGE KWON: Thank you.


16 Q. Is there a pending request for assistance in order to get the

17 unredacted version of this document?

18 A. Yes. Of the documents that we obtained copies of last February,

19 we've also made an additional follow-up request to receive unredacted

20 copies of roughly a hundred documents.

21 Q. And the OTP has not received the unredacted copy of these

22 documents as of yet?

23 A. Not to my knowledge, no.

24 Q. I'd like to now present what's been previously marked as

25 Prosecution Exhibit 18 and 18/E, also in Exhibit 2 of Your Honours'

Page 196

1 binders, I believe.

2 Once again I'll advise you you don't want to mention any witness

3 names in these documents.

4 A. Uh-huh.

5 Q. And they should not be broadcast outside of the courtroom. The

6 document is electronically available on the courtroom screens.

7 Can you identify this document which is marked as Exhibit 18,

8 please.

9 A. This document comes from a redacted author who's writing using the

10 ID number and letterhead of the office of the assistant minister for

11 security of the Ministry of Defence of the Republic of Croatia, and he's

12 writing to a redacted addressee, and it -- but it is also stamped for

13 receipt by the HIS. And the date of the document is 17th of March, 1998.

14 Q. Once again --

15 MR. KRSNIK: [Interpretation] Your Honour.

16 JUDGE KWON: Mr. Krsnik.

17 MR. KRSNIK: [Interpretation] I am sorry, I apologise to the

18 Honourable Trial Chamber, but I'm so tired of getting up all the time.

19 It's not true again. In the Croatian original, it says very clearly who

20 received the report. The report was received by the office for national

21 security. This is a completely different agency. Of course, I will have

22 the time and honour to discuss this during the cross-examination.

23 So it is the national security office that received this, and now

24 does the witness know that the HIS is part of that service? That is

25 something that we will discuss when our time comes, but that's not it.

Page 197

1 Thank you for this intervention.

2 JUDGE KWON: Thank you. In Croatian version there is no

3 abbreviation of HIS, as was noted by an English translation. That has

4 been noted. Thank you.

5 Please go on, Mr. Akerson.


7 Q. I just want to point out, the redactions in this document, were

8 they also done by the Croatian government?

9 A. Yes, although this particular document, which we got on the same

10 mission, was provided to us by the intelligence agency, or OA is the is

11 the acronym for them, and they are the successor to the HIS, which is

12 discontinued. And as a rule, they were more liberal with -- or less

13 liberal, depending how you look at it, with the redactions.

14 Q. The point being that the redactions were done by the Croatian

15 government. We've requested an unredacted document and we have not

16 received that unredacted document as of yet.

17 A. Yes.

18 Q. And can you tell the Court, what is the nature of this document?

19 A. The author is alerting the addressee that a protected witness has

20 begun testifying in the case against Tihomir Blaskic, and it names that

21 witness by name, and they inform the HIS that they will keep them informed

22 of this protected witness's testimony, and a similar warning to the ones

23 we've seen before is at the bottom of the letter.

24 Q. The letter references a summary of the closed-session testimony of

25 the protected witness as being delivered by this letter; is that correct?

Page 198

1 A. With this particular document, unlike the other two, I don't see

2 an attachment, but I might not be looking in the right place.

3 Q. Yeah. If you can look at the second paragraph --

4 A. Uh-huh.

5 Q. -- and just read that.

6 A. Oh, yes.

7 Q. Read that second paragraph, please.

8 A. Yes, you're right. I'll read the second paragraph. It is there.

9 It wasn't highlighted.

10 "According to the source's prediction, the testimony of" this

11 protected witness -- and in the original the protected witness is named,

12 of course. When I say "protected witness," they're using his name.

13 "... and his cross-examination will last three days (until 18 March 1998).

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 Q. Thank you. The date of this letter is the day after this

20 witness's testimony; is that correct?

21 A. Yes.

22 Q. So a day after the protected witness testifies at the ICTY, this

23 letter, which emanates from Mr. Rebic's office, is circulated, containing

24 the content -- a summary of the content of the protected witness's

25 statement?

Page 199

1 A. Yes.

2 Q. Thank you very much. I'll move to the next document.

3 MR. KRSNIK: [Interpretation] Your Honour. Your Honour, I believe

4 we must not allow this, and I object to any conclusions being drawn. The

5 witness cannot draw his conclusions here. It is not written anywhere in

6 this document who sent it to inform whom or that it is from the office of

7 Mr. Rebic. That is a conclusion of the witness.

8 The bureau or office for security does not mean it is Mr. Rebic's

9 office. Mr. Rebic was at the head of the whole sector in the Ministry of

10 Defence and had many people under him. But that is -- what was said was a

11 conclusion made by the witness, and I don't think it actually follows from

12 what is written.

13 MR. AKERSON: If I can respond, Your Honour. We never said that

14 this came personally from Mr. Rebic but from his office.

15 JUDGE KWON: Thank you.

16 MR. AKERSON: I'll move on to the next document, which is

17 Prosecution ...

18 [Trial Chamber confers]

19 JUDGE KWON: Mr. Akerson, the Chamber finds your question where

20 you said, The day after the protected witness testifies at the ICTY, this

21 letter which emanates from Mr. Rebic's office is circulated concerning the

22 content," et cetera, leading. So -- and the conclusion of the matter is

23 for the Chamber to determine later on. So could you bear that in mind?

24 So the Chamber is minded to sustain the opposition in relation to this

25 matter. Or could you reformulate the question again.

Page 200

1 MR. AKERSON: Sure.

2 JUDGE KWON: Before that, is it okay for you to mention the

3 content of the protected witness's evidence, whether we can identify the

4 witness or not? Think about it.

5 MR. KRSNIK: [Interpretation] Yes.

6 MR. AKERSON: Referring back to --

7 JUDGE KWON: Just a second.

8 [Trial Chamber confers]

9 JUDGE KWON: Judge Robinson has a question.

10 MR. AKERSON: Yes, Your Honour.

11 JUDGE ROBINSON: Mr. Akerson, I'm beginning to become more than a

12 little concerned about this line of examination. Are you really asking

13 the Chamber to draw an inference of guilt from this evidence of previous

14 conduct in relation to the particular charges which relates to a later

15 date and event? Is this what you're really doing?

16 MR. AKERSON: No, Your Honour. The purpose of this evidence is to

17 show Mr. Rebic's understanding of the protections that are in place, and

18 the article that was published in Hrvatski List on November 18th, 2004,

19 what is explicitly admitted is that protections apply but there's no

20 discussion as to what specific -- what specifically is protected. This

21 evidence clearly shows that Mr. Rebic had a knowledge of not only the

22 protection supplied but what those protections were. This is not evidence

23 of --

24 JUDGE ROBINSON: But how could it show that he would know what the

25 protections were in relation to the specific matter before the Court now?

Page 201

1 MR. AKERSON: It demonstrates that he has a knowledge that witness

2 protection includes identity and content and, therefore, on November 18th

3 in 2004, if there was a question, he knows that there are these two

4 components to protections, and he's responsible for then ascertaining

5 before he participates in the publication of what is known as protected

6 material to find out whether or not it's protected as to identity or

7 content, but it demonstrates clearly a very detailed knowledge of the

8 kinds of protection that apply.

9 JUDGE ROBINSON: I don't think that would be a fair inference to

10 draw.

11 JUDGE BONOMY: There's more to it than that. The order affecting

12 these witnesses would no doubt be a different order from the one that

13 we're considering. They're witnesses who give evidence in closed session,

14 so one would need to look at the closed session background decision, which

15 we're not here to do. We're not here to explore other cases. I, at the

16 moment, can draw no inferences from any of this evidence, I make it clear

17 to you. And if it's all of the same pattern, then it's pointless hearing

18 it.

19 JUDGE KWON: Mr. Ivanovic.

20 MR. IVANOVIC: [Interpretation] I think the key issue here that has

21 to be cleared up before this witness continues is whether any of the

22 statements mentioned here was published by 1999 until when Mr. Rebic had

23 effective control, whether the allegation made by the Prosecutor could be

24 relevant. If it was published after 1999, it's a different matter, and it

25 has nothing to do with the testimony of Van Kuijk or Hrvatski List,

Page 202

1 because none of these documents mention either Hrvatski List or

2 Mr. Marijacic.

3 JUDGE BONOMY: That actually is a separate point, which highlights

4 further the potential irrelevancy of this evidence, because the things

5 that are being done here are things that it is understandable for an agent

6 in the security service to be doing in the interest of his state. Whether

7 it's justified or not is another matter, but understandable. And it's

8 quite different conduct from giving something to a journalist.

9 Now, you've not suggested that you're using it to indicate that he

10 would give something to a journalist for publication, so it may be that

11 what Mr. Ivanovic says forms no part of the case. But if you are going to

12 suggest that, then I again would find it impossible, on what we've seen so

13 far, to draw the inference from what's going on behind the scenes, telling

14 people explicitly that this is to be kept private within our own confines

15 as indicative at all as an intent to publish material.

16 [Trial Chamber confers]

17 JUDGE BONOMY: Mr. Akerson, does this evidence go on in the same

18 vein for some time?

19 THE INTERPRETER: Microphone, please.

20 MR. AKERSON: There's one additional document and then I'm done --

21 THE INTERPRETER: Microphone for the Prosecution.

22 MR. AKERSON: -- on these documents.

23 JUDGE BONOMY: And the transcript relates to events in 1997, seven

24 years before what we're talking about, in a clearly political situation,

25 quite different from the sort of situation that this case is about, and

Page 203

1 the others relate to protected witnesses in respect of whom the orders

2 might be different from the order in the present case, or might have been

3 made for different reasons from the order in the present case.

4 MR. AKERSON: I think what these documents show is that Mr. Rebic

5 was in possession of the knowledge that this -- the protections were

6 closed-session orders. What we have in 2004 is Mr. Rebic providing a

7 transcript that clearly indicates this is closed-session testimony.

8 JUDGE BONOMY: But am I right in saying that the reasons for

9 closed-session testimony in the two cases we've had so far may well be

10 different? In fact, are obviously going to be different from the reasons

11 behind the closed-session testimony in the present case.

12 MR. AKERSON: Very likely that there are going to be differences.

13 However, what it does show is that Mr. Rebic knew that there were these

14 different components of closed-session protection. Because one of his

15 arguments can be that I knew some protections applied but I didn't have

16 the specifics so you can't hold me responsible for violating protections

17 which I only knew of generally, and this very clearly establishes beyond a

18 reasonable doubt that he knew the specifics of what protections could

19 apply to a witness. At that --

20 JUDGE BONOMY: There is -- yes.

21 MR. AKERSON: At that point, he's responsible if he's going to

22 publish -- to make the call to the Tribunal to ascertain what those

23 protections are before he goes ahead and publishes. There are occasions

24 where you can't publish the content of a witness's testimony but you're

25 free to say that he testified at the Tribunal. You have to know that

Page 204

1 there's a difference between an identity being protected or not and the

2 content of what he testifies to being protected or not.

3 And I would like to address as long as -- I mean, it seems like

4 the Court would like a proffer on the relevance of the transcript of the

5 presidential meeting, and I'm happy to make that, because what it shows,

6 which I would have tied up in argument but I'm going to make a proffer

7 now, that in 1997, in May, Mr. Rebic meets, in the office of the

8 Presidency of Croatia, with two newspapers. The intent of that meeting is

9 nothing other than to leak -- to take a statement that was provided by

10 Defence counsel to Mr. Rebic and to have it published in the newspapers.

11 It was published two days later. Two weeks later, a Court -- the Blaskic

12 Trial Chamber issues an order which says to the lawyer stop doing this,

13 and it issues broad language, and furthermore all leaks and publications

14 of this material must stop. And now you have these letters which occur

15 after that, which clearly show that he's absorbed what the Trial Chamber

16 had ordered, that he's understanding these protections are in place so

17 he's now including these provisions, so he's reacting to a Trial Chamber's

18 order, so it demonstrates his knowledge that the Trial Chamber is issuing

19 orders beyond closed session, oral orders, and his constructive knowledge

20 therefore of December 1, 2000.

21 JUDGE KWON: So the Prosecution's case is -- could you wait a

22 minute, Mr. Krsnik.

23 If I understand it correctly, the Prosecution's case is

24 irrespective of various reasons for going into closed session, the effect

25 of closed session would be the same, so the -- Rebic should have

Page 205

1 understood the meaning of closed session, effect of closed session.

2 MR. AKERSON: Exactly.

3 JUDGE KWON: What you are going to say?

4 MR. AKERSON: He's in possession of a closed-session transcript,

5 with clear oral orders of a Trial Chamber protecting that witness, which

6 the Appeals Chamber has already ruled that's what happened, and he knows

7 now that there are different implications of that oral order to move into

8 closed session. Very clearly, he's aware that the identity could be

9 protected, the content could be protected.

10 JUDGE KWON: Then only one or a couple of documents will do. Do

11 we need to explore all the documents?

12 MR. AKERSON: There's five documents that I'm introducing on that

13 note and the presidential transcript. That's it. That's all I'm

14 intending to do, and that's all I ever intended to do with this witness.

15 JUDGE KWON: We'll hear from Mr. Krsnik.

16 MR. KRSNIK: [Interpretation] Your Honour, I have to respond to my

17 learned friend. What he said about the presidential transcript from 1997

18 is not true at all. The point was that the protected witness, as I read

19 and understand - and I'm trying to clear this up - the protected witness

20 accused late President Tudjman. He, as the president and Supreme

21 Commander of the army, orders and decides and says, "Get hold of that

22 transcript for me." Rebic has nothing to do with that. In that

23 hierarchy, he's somebody somewhere. That is one thing.

24 And the second thing - I won't be long - is the transcript from

25 the closed session was not published in Hrvatski List. What are we

Page 206

1 discussing then? And we established that today.

2 JUDGE KWON: We know that, and as for the first method, I think,

3 Mr. Krsnik, you can cross-examine the witness.

4 [Trial Chamber confers]

5 JUDGE KWON: Let me ask a question, Mr. Akerson. In relation to

6 the protected witness we are referring to in tab 18, was -- my question is

7 this: Whether there was a separate protective measures ordered by the

8 Chamber except for the closed session. Was he given a pseudonym or any

9 other protective measures?

10 MR. AKERSON: My understanding from that stage of the Blaskic

11 trial is that they were not using the procedure of pseudonyms. They were

12 protecting witnesses by going into closed session. I'll double-check that

13 at the break to make sure I'm stating that accurately, but I think at that

14 point in the Blaskic case they weren't using pseudonyms. I know Mr. --

15 this witness was not given a pseudonym.

16 JUDGE ROBINSON: In other words, the order simply said closed

17 session.

18 MR. AKERSON: Exactly.

19 JUDGE ROBINSON: Nothing more.

20 MR. AKERSON: Correct. That's my understanding. I'll

21 double-check and report back after the break.

22 JUDGE KWON: So I'd like -- the Chamber would like you to conclude

23 your examination as soon as possible.

24 MR. AKERSON: One minute. Yes, I'm trying.

25 JUDGE KWON: Yes. And then we'll deal with the admissibility of

Page 207

1 the -- of these documents after the break.

2 MR. AKERSON: I'd ask the usher to present to the witness these

3 documents, which are Prosecution Exhibit 20.

4 Q. Mr. Tomljanovich, can you identify this document for the Court,

5 please.

6 A. This is a type signed document from the --

7 THE INTERPRETER: Microphone for the witness, please. Microphone

8 for the witness.

9 JUDGE KWON: Mr. Tomljanovich, could you turn on your microphone,

10 please.

11 THE WITNESS: I'll start again.

12 JUDGE KWON: Yes, please.

13 THE WITNESS: This is a type signed letter from the Assistant

14 Minister of Defence Staff Brigadier Markica Rebic to the Minister of

15 Defence Gojko Susak.

16 JUDGE KWON: Mr. Krsnik.

17 MR. KRSNIK: [Interpretation] Thank you, Your Honour. I'm afraid

18 again that these are conclusions, because on the cover page in Croatian

19 you can see there is no signature and no seal. I think this is an

20 arbitrary conclusion made by the witness as to who it came from. There is

21 no personal signature, no seal, no stamp.

22 MR. AKERSON: Your Honour, that goes to weight, not admissibility.

23 I --

24 JUDGE KWON: What do you mean by you said -- by saying that it is

25 a type signed letter? I don't follow.

Page 208

1 THE WITNESS: Well --


3 THE WITNESS: That's language we use -- I apologise for using

4 language that the Court wasn't familiar with, but that's for a document

5 which has the originator in the space where the signature should be but

6 doesn't have a hard copy -- pen signature, actual signature. And we see

7 that quite frequently, because frequently the documents we find in the

8 archives are draft copies or copies which are in the archive of the

9 originator, and frequently, but this isn't the case here, there is

10 documents that are transmitted electronically where there isn't a physical

11 signature.

12 JUDGE KWON: Thank you. It is a matter for the weight, so please

13 go on. We'll deal with the whole issue later on.

14 MR. AKERSON: Yes.

15 Q. The letterhead of this document, what does -- what does that

16 reflect?

17 A. It's the letterhead of the office of the assistant minister for

18 security of the Ministry of Defence of the Republic of Croatia, and also

19 has the appropriate serial number for that office.

20 Q. That would be Mr. Rebic?

21 A. Yes. In this period, yes, he was the assistant minister.

22 Q. Okay. And this document also has another indication of the

23 protection measures that apply to a witness?

24 A. Yes, it does.

25 Q. And is this document a fair and accurate copy of the document that

Page 209

1 you observed, analysed in the Croatian archive?

2 A. Yes.

3 MR. AKERSON: No further questions for this witness at this time.

4 JUDGE KWON: Thank you, Mr. Akerson.

5 MR. AKERSON: Other than, Your Honour, I would now ask that all of

6 these exhibits be moved into evidence, as named by the Prosecution.

7 [Trial Chamber confers]

8 JUDGE KWON: Before we have cross-examination, the Chamber is

9 minded to take a break, and I was advised to take a break at least for

10 half an hour. So we will adjourn for half an hour.

11 --- Recess taken at 11.58 a.m.

12 --- On resuming at 12.36 p.m.

13 JUDGE KWON: The Prosecution has tendered five documents during

14 the examination-in-chief, and the Chamber will admit them all except for

15 the first one, being P7, the transcript, for the time being. We will make

16 the determination after hearing the cross-examination.

17 Now it is time for the Defence to cross-examine the witness.

18 My English was not clear. Mr. Akerson?

19 MR. AKERSON: I just wanted to report, as I promised, on the

20 protections in the Blaskic case, that there are in fact -- I was

21 incorrect, there are additional protections. There were written decisions

22 for witnesses. Pertaining to the witnesses in the documents I presented,

23 there was, I believe, one written additional protection measure, but I

24 don't know -- I didn't get a chance to look at the date of that. I know

25 there is a written decision and I can report later on the specific date.

Page 210

1 I just know there was a decision that was issued but I don't know the

2 nature of it. I was just able to get to the index in the short period we

3 had.

4 [Trial Chamber confers]

5 JUDGE KWON: So what I announced is that we admit the four

6 documents, which are P16, 17, 18 and 20, and we will deal with the

7 admission of P7 after the cross-examination.

8 Having said that, the numbers should be given to those four

9 exhibits.

10 THE REGISTRAR: Yes. Thank you, Your Honour. Pursuant to your

11 decision, Exhibit P16 will be allocated OTP 18.

12 The Exhibit P17 will be allocated the Exhibit OTP 19.

13 The Exhibit P18 will be allocated the Exhibit OTP 20; and finally,

14 the Exhibit P20 will be allocated OTP 21, bearing in mind that all those

15 documents have an English translation, which reads respectively, OTP 18/E,

16 OTP 19/E, OTP 20/E, OTP 21/E.

17 I thank you, Your Honour.

18 JUDGE KWON: Thank you, Mr. Registrar. And I would like to inform

19 the parties at this time that the Chamber has made an arrangement with the

20 Registry that the hearing can be extended to tomorrow, Thursday, for one

21 day, but that's all we can get for the time being. So we have to make our

22 -- do our best to conclude the hearing by tomorrow.

23 Mr. Ivanovic, do you have anything to cross-examine the witness?

24 MR. IVANOVIC: [Interpretation] Yes, Your Honour, I do have a few

25 questions that I would like to put to this witness, quite simply to

Page 211

1 clarify certain dilemmas that came up during his evidence.

2 JUDGE KWON: Please.

3 Cross-examined by Mr. Ivanovic:

4 Q. [Interpretation] First of all I would like to introduce myself to

5 the witness. My name is Marin Ivanovic, and I represent Mr. Marijacic

6 here. I apologise to the interpreters for not speaking into the

7 microphone.

8 My first question is the following: You said that you looked at a

9 great deal of databases, archives of the Republic of Croatia. In these

10 databases is the name of Ivica Marijacic mentioned at all?

11 A. It may well be, but not in any documentation I reviewed.

12 Q. Is there any mention of Hrvatski List?

13 A. Not the one you're asking about, although there was a newspaper, I

14 think, by the same name in Herzegovina in the mid-1990s. But not the one

15 you're asking about, which I understand was published in Zadar.

16 Q. Was there any mention at all of Hrvatski List which is published

17 in Zadar and has been published in Zadar since 2004?

18 A. No.

19 Q. In all these archives, did you find any document that would have

20 to do with Mr. Van Kuijk's testimony in closed session?

21 A. Yes, I did, as a matter of fact. There's a number of documents

22 concerning that.

23 Q. Can you show me a single one?

24 A. I wasn't instructed to bring any, although I could describe them

25 for the Chamber, if you're interested.

Page 212

1 Q. I would like to see one such document, please.

2 A. Actually, the documents which I've seen --

3 MR. AKERSON: Your Honour, if I just might suggest that maybe the

4 witness could describe the documents and then we could determine whether

5 or not it's worth the time to go and retrieve them from the archive.

6 JUDGE KWON: Yes. Could the witness describe the --

7 MR. AKERSON: Perhaps we should do this in private session,

8 though, because I don't know what document he's referring to, and I have

9 no idea whether there's any protections -- I don't know if it pertains to

10 other witnesses as well. I don't know anything about this document. I'm

11 just --

12 JUDGE KWON: I think the witness will be able to deal with the

13 situation.

14 MR. IVANOVIC: [Interpretation] Your Honour, may I just rephrase my

15 question, and then it's going to be much clearer.


17 MR. IVANOVIC: [Interpretation]

18 Q. In your statements that you gave in connection with this case, did

19 you mention a single document that had to do with Mr. Van Kuijk?

20 A. I don't believe I did.

21 Q. Thank you. I think that in this way we've resolved the matter.

22 In all these documents that were introduced by the honourable

23 Prosecution, have any signs of confidentiality been noted?

24 A. You mean on the document themselves?

25 Q. Yes.

Page 213

1 A. Yes. Many of them did have various grades of secrecy on them, as

2 is almost always the case with all the documentation we've dealt with.

3 Q. In the period from the 6th of June, 1997, until the end of 1999,

4 was a single letter published about these protected witnesses that we

5 mentioned previously, those that are referred to in these documents?

6 MR. AKERSON: Your Honour, I'm just going to object. This witness

7 can't testify to that. He's not an expert. He wasn't brought on to

8 testify about Hrvatski List in that way.



11 MR. IVANOVIC: Okay. [Interpretation] Okay. Then I give up on

12 that question.

13 Q. And finally, as the witness did his research of these documents,

14 in this transcript there are two newspapers that are mentioned. Was there

15 any mention in this context of Hrvatski List from Zadar?

16 A. No.

17 Q. Thank you.

18 MR. IVANOVIC: [Interpretation] Your Honours, I have no further

19 questions for this witness.

20 JUDGE KWON: Thank you, Mr. Ivanovic.

21 Mr. Krsnik.

22 Mr. Akerson?

23 MR. AKERSON: I might be able to save some time. I'm willing to

24 stipulate that the documents that Mr. Tomljanovich testified to don't deal

25 directly with Hrvatski List. They deal with the knowledge that Mr. Rebic

Page 214

1 had but I don't think that questions regarding whether he saw any

2 documents regarding Hrvatski List; he did not.

3 JUDGE KWON: Thank you for your clarification.

4 Mr. Krsnik.

5 Cross-examined by Mr. Krsnik:

6 Q. [Interpretation] Good afternoon, Mr. Tomljanovich. I think that

7 you and I know each other, don't we? So there's no need for me to

8 introduce myself.

9 First I'd like to clarify something with you, as I did yesterday

10 with the previous witness. Could I please ask for your statement that you

11 gave to the honourable Prosecution. It is marked -- what's the marking?

12 Could I please ask our friends of the Prosecution to help us if they have

13 Mr. Tomljanovich's statement here, the one that he gave on the 31st of

14 October, 2005.

15 JUDGE KWON: Could it be put on the ELMO.

16 MR. AKERSON: We have copies, or we could put it on the ELMO,

17 either way.

18 MR. KRSNIK: [Interpretation]

19 Q. Mr. Tomljanovich, do you have it in front of you? Let me just ask

20 you for the sake of authenticity, because I did not see a signature on

21 your statement at all, so I'm asking you, is this your written statement,

22 written statement, written in your own hand, or did somebody actually

23 interview you?

24 A. Well, first of all, on the copy I have I do have my signature here

25 at the bottom of the first page, and then I initialed every page

Page 215

1 subsequent to that. Now, as far as statement written in my own hand, I

2 typed it myself, upon request of Mr. Akerson asking me to address certain

3 topics -- or these topics, basically.

4 Q. That's the only thing I wanted to ask you, just to check things.

5 Now I have to ask you something in general terms. You said that you've

6 got a Ph.D. from Yale University?

7 A. Yes, I did.

8 Q. And you're an historian?

9 A. Yes.

10 Q. Is Professor Barnes your mentor at Yale? Is that where you got

11 your Ph.D.?

12 A. Excuse me, just for the English translation, it's Banac, not

13 Barnes, and yes, he was my doctoral advisor.

14 Q. Tell me, please: Who sent you to work in this Office of the

15 Prosecutor? The UN or somebody else?

16 MR. AKERSON: Objection. It's outside the scope and totally

17 irrelevant to this hearing, Your Honour.

18 JUDGE KWON: I will ask the witness to answer the question.

19 THE WITNESS: Yes. Well, in -- I guess it would have been late

20 January 1999, I received a call from one of my colleagues from graduate

21 school who had already obtained employment here, and he called me and said

22 they were interested for more people with -- in more people with the sorts

23 of qualifications he had and would I like to apply, and I did.

24 MR. KRSNIK: [Interpretation]

25 Q. Of course I have very good manners and I am a very decent man, so

Page 216

1 I'll put this question cautiously. All the efforts that you've made here

2 over the past six years, have they been paid from by your UN salary or

3 from someone else?

4 A. I've been paid by the UN for the last nearly seven years.

5 Q. Am I mistaken if I say that at first you were financed by the

6 Soros Foundation?

7 A. Yes, you would be mistaken. I haven't been paid by the Soros

8 Foundation while I was working here, and I don't think I ever was in the

9 past for any of my academic research either. Actually, I can say that

10 categorically; I was not.

11 Q. And you never had any contacts with that foundation?

12 A. I've had contacts with persons who work with that foundation.

13 Another colleague of mine from graduate school works for the -- I think

14 it's the Soros Foundation, although I'm not sure exactly what body she's

15 working for. And then one of our colleagues in my office just left work

16 here and went over to work for them, for the Soros Foundation, I think,

17 but I haven't talked to him since he's done that.

18 Q. I've asked you this -- well, you've just given me a clear answer,

19 because you know about the Soros Foundation, the problems they've had from

20 1990 until 2000 with the Croatian government, but let us move on.

21 Can you tell us what an historian can do who is not an

22 investigator, not a policeman, who does not have a degree in law? What is

23 a person like that doing in the Office of the Prosecutor? What are you

24 doing specifically?

25 A. Well, I can give you a long answer to that.

Page 217

1 Q. [In English] Very short. Very short, please. Very short.

2 A. Well, I do a lot of things. I'm not sure I can give a short

3 answer.

4 Q. Okay.

5 A. First of all, what I'm doing in the Prosecutor's office is

6 extremely similar to what I did as an historian, which is in large part

7 going to the archives - in many cases the same archives - I am reviewing

8 large numbers of documents, finding the ones that are relevant, obtaining

9 copies of those documents, and then analysing and reporting on those

10 documents, which is more or less the same thing I did as an historian. We

11 also do reviews of in-house material sometimes as well, which is also very

12 similar to what I did as an historian.

13 As a matter of fact, when we were working in the Croatian archives

14 in 2001, 2002, I was sitting in the same room I was working on my

15 dissertation in 1992 and 1993 with one of the same colleagues.

16 Q. All right. Yes. As far as I know -- I mean, I don't know a

17 single historian who investigates in terms of dealing with criminal

18 matters. Historians deal with a historical approach, not with an approach

19 from the point of view of criminal law. These are two completely

20 different matters.

21 A. Well, there might ---well, there is a number of us working in the

22 Prosecution --

23 Q. I'm sorry. I beg your pardon. You introduced yourself here as an

24 investigator or a research officer of the OTP.

25 JUDGE KWON: Mr. Akerson.

Page 218

1 MR. AKERSON: I object to that question. He's not qualified to

2 express an opinion on the difference between law and history, and I don't

3 think it's relevant at all.

4 JUDGE KWON: Mr. Krsnik, can you move on to relevant topics for

5 the sake of time.

6 MR. KRSNIK: [Interpretation] Of course, Your Honour, but I think

7 that cross -- cross-examination is very important, and it's very important

8 to see whether a witness is qualified or not, because all of this speaks

9 of a credit of a witness. It's very clear if a policeman becomes an

10 historian or the other way around. We'll move on. I'm not going to dwell

11 on this any longer.

12 JUDGE KWON: Thank you.

13 MR. KRSNIK: [Interpretation] Specifically, straight away. [In

14 English] Put this on the ELMO.

15 Q. [Interpretation] Mr. Tomljanovich, I'm telling you now that you do

16 not know about the functioning, the hierarchy both of intelligence

17 services, and you also don't know about the functioning of the authorities

18 in the Republic of Croatia up until the death of President Tudjman. So I

19 would like to ask you kindly to look at this sketch which I made.

20 JUDGE ROBINSON: You must let him answer that.

21 THE WITNESS: Shall I?

22 JUDGE ROBINSON: Yes. He put to you that you don't know these

23 matters. Without giving a long answer.

24 THE WITNESS: I'll give a short answer. First of all, I didn't

25 make this chart. This chart was put to me, but I did not make this chart.

Page 219

1 MR. KRSNIK: [Interpretation]

2 Q. But today you testified to the fact that it was truthful and that

3 that is the way this functions.

4 A. No, I did not. First of all, I stated clearly, if you go back and

5 look at the record, that this is simply for the purposes of showing the

6 subordinations in regards to the correspondence which was going to be used

7 today, and only for that purpose. I mean, if you had wanted, I could draw

8 up a much larger chart with six large and about 20 smaller organisations

9 that were active in the Republic of Croatia in those years.

10 Q. There's no need for that. I just want to find out whether you

11 know about this or whether you do not know about this. Is this chart

12 something that corresponds to the truth or not? Yes or no.

13 A. It corresponds to what it was intended to do, which was to show

14 the relationships between the persons in this letter. It's not intended

15 to be a complete organigramme of the Croatian intelligence organs, I'm

16 sure. And if it were, you'd have to add a lot more than just the UNS on

17 top of the HIS in providing --

18 Q. Oh, please, please.

19 A. [Previous translation continues] ...

20 Q. Please be a bit shorter in your answers if at all possible.

21 I am telling you that you painted the wrong picture and it does

22 not reflect the situation at all. So please look at what is on the ELMO

23 now and tell us, is that perhaps the actual state of affairs?

24 A. It is true that the UNS was created by the law on the UNS of the

25 17th of May, 1995, in order to harmonise and coordinate the activities of

Page 220

1 the various intelligence agencies. The SIS was one of the agencies they

2 were supposed to coordinate. The HIS, on the other hand, was at least

3 legally an integral part of the UNS, along with a number of other offices,

4 which is certainly true, but we could add all sorts of boxes. It is true

5 that the UNS hierarchically did have that position, although in the

6 correspondence we looked at today, nothing was being addressed to the

7 director of the UNS.

8 Q. I maintain that what you're saying is not true, not correct.

9 Therefore, I will ask you, is UNS superior to the assistant minister,

10 Mr. Rebic, the security service SIS, or not?

11 A. Is the UNS subordinated, did you say, to the -- to Markica Rebic?

12 Q. I'm asking you is it superior to Markica Rebic and the service

13 called SIS.

14 A. Well, to answer that, first of all I am under the impression from

15 the law on the UNS of 1995 that the UNS was created --

16 Q. Please. Please, Witness, answer me with a yes or no. Be so kind.

17 Do you know, is it superior or isn't it? Let us move on.

18 A. You can answer yes or no. It's a bit like the question if you've

19 stopped beating your wife. There's a direct line of reporting which goes

20 through the Ministry of Defence, and he is immediately subordinate to the

21 minister of defence. The UNS -- and don't ask me what exactly this means

22 because I don't know exactly, but the UNS is supposed to harmonise and

23 coordinate and oversee the other bodies, but it's not a direct line of

24 subordination. It is a more direct line of subordination from the UNS to

25 the HIS.

Page 221

1 Q. You hold out yourself all this time to be an expert in what was

2 going on in government and high politics, and you don't know what the word

3 "UNS" means. How can you possibly understand what was going on under

4 them if you don't know that?

5 A. Well, first of all, I wasn't presented as an expert. Second of

6 all, I do understand what the UNS is and we've just been discussing it.

7 You disagree as to whether or not the relationship between the UNS and the

8 SIS was one of direct subordination. That's another matter. If you put

9 documents to me, I could comment on them, but if you're just speaking in

10 vague terms like this, I can only tell you what I have off the top of my

11 head. And certainly as far as my expertise is concerned, I may know more

12 than some of the people in my office about these things but I certainly

13 know a great deal less about these things than your client.

14 Q. I'm asking you for a very simple reason, and of course there is a

15 reason why I'm asking you this question, because you testified today to

16 all these documents that were admitted into evidence. I'm asking you from

17 a point of view of common sense, and I expect the same answer.

18 Can Markica Rebic independently, without the approval of UNS or

19 HIS decide anything? For instance, can Markica Rebic decide

20 independently, without UNS or HIS approval, to publish something in the

21 mass media?

22 A. Well, as far as other decisions are made, yes, he could and he did

23 make decisions without conferring with them. And as far as I'm aware at

24 the conversation we were talking about in the transcript, which is, I

25 believe, the 7th of May, 1997, there were no other members of any other --

Page 222

1 of the intelligence service. The director of the UNS was not there, and

2 as far as I remember, Miroslav Tudjman was also not there.

3 Q. What you are saying absolutely does not correspond to reality. It

4 is not true. What was the service that was designated to cooperate with

5 this court in The Hague, and what is the main intelligence service of the

6 Republic of Croatia?

7 A. Well, if I may, there was a document which we decided not to enter

8 into evidence which answers that quite well.

9 Q. Please answer my question.

10 A. Well, I will.

11 JUDGE KWON: Mr. Akerson.

12 MR. AKERSON: I would just like to say, Your Honour, that although

13 this is an interesting discussion, it doesn't, I don't think, really

14 advance what are the issues at trial because Mr. Tomljanovich principally

15 was introducing documents in a foundational way and didn't testify,

16 express an opinion on them, didn't make any conclusions about them,

17 principally said these are true and accurate copies of documents that were

18 in the archive.

19 JUDGE KWON: Those documents dealt with this somewhat role of

20 Mr. Rebic, and it is for the Defence to clarify that role.

21 MR. AKERSON: It's up to you. My point, I guess, is that it

22 doesn't really matter what Mr. Rebic's role was, he was corresponding with

23 it could have anybody, it just happened to be these people, and I wanted

24 you to have their names, which is why I gave you this little chart. But

25 he could have been corresponding with anybody; it's the fact that he was

Page 223

1 corresponding with this information that was of relevance.

2 JUDGE KWON: Yes, if you could answer the question.

3 THE WITNESS: I will answer the question without making reference

4 to any exhibits. If the question is -- and now I've almost forgotten what

5 the question is, but if the question is which agencies were responsible

6 for the activities we've been talking about today with the assistance --

7 in terms of assistance of ICTY defendants, then I can tell you that there

8 were a whole number of agencies which were involved. Now, the agency --

9 MR. KRSNIK: [Interpretation] Please. Please, Your Honours. Maybe

10 I don't know how to lead this cross-examination. I do come from a civil

11 law system, but I don't want to be lead by the witness. I want short,

12 clear answers. He can tell me "I don't know," and I'll move on. I asked

13 him what is the main intelligence organisation.

14 JUDGE KWON: I think the witness is coming to the answer --


16 JUDGE KWON: -- you wanted to hear.

17 THE WITNESS: Yes. A number of agencies were involved. The

18 agency which had a special team set up to do the operative work was the

19 SIS. Now, the agency which was designated as being the carrier of

20 responsibility, or the Croatian term is "nositelj," for all of these

21 operations was the HIS, but involved a number of other institutions as

22 well. They cooperated with the embassy here, they cooperated with the

23 Foreign Ministry, they cooperated with the Office for Cooperation with the

24 ICTY, and I believe a number of other smaller agencies.

25 JUDGE KWON: What was the first name you referred to? NS?

Page 224

1 THE WITNESS: I'm sorry where were we? Which -- I'll have to look

2 at the transcript here.

3 JUDGE KWON: "... being the carrier of responsibility, or the

4 Croatian term is"?

5 THE WITNESS: Oh, the Croatian term is "nositelj." When they have

6 the orders which establish these operations. The HIS is usually referred

7 to as the nositelj, which I assume means -- and I don't know the jargon, I

8 assume that means that they carry a certain ultimate responsibility.

9 However, most of the operative work was being done by a team of persons in

10 the employ of the SIS.

11 JUDGE KWON: Let us move on, Mr. Krsnik.

12 MR. KRSNIK: [Interpretation] Your Honour, this is not taking us

13 anywhere, because I believe that I'm asking very clear questions, and I

14 can see them on the transcript. I'm asking again, and I want a short

15 answer from the witness:

16 Q. Who coordinated? Who was the top, the commanding service in the

17 Republic of Croatia? Do you know that, Witness, or do you not? Croatia,

18 although it was young and a developing country, it had an organised

19 hierarchy and subordination. So I'm asking you, do you know about that

20 hierarchy or not? And I need to know that so we can clarify the role of

21 Mr. Rebic, and I want not your conclusions but facts. Do you know them or

22 not?

23 JUDGE ROBINSON: One question at a time. The first question

24 was --

25 MR. KRSNIK: [Interpretation] Does the witness know --

Page 225

1 JUDGE ROBINSON: [Previous translation continues] ... top of the

2 hierarchy.

3 MR. KRSNIK: [Interpretation]

4 Q. And who organised everything and who was responsible for

5 everybody.

6 A. As far as I know, with the language you're using, there was no

7 commanding service. If what you're referring to is the UNS, after May 17,

8 1995, with the responsibility of coordinating and overseeing the

9 intelligence agencies, then it would be the UNS, but that's different from

10 being the commanding service.

11 Q. Haven't you noticed these documents admitted today? Haven't you

12 noticed that Mr. Rebic was sending them to somebody who was above him?

13 Because if he were -- had been independent and capable of deciding

14 himself, he wouldn't have needed to send those reports to anybody.

15 A. There's two things and I'll deal with one first and then the

16 other. First of all, Mr. Rebic, just to be clear, was immediately

17 subordinated to the minister of defence, who at that time was Mr. Susak.

18 Secondly, he was -- all of these agencies and these operations

19 passed information back and forth. They were told to do so and they were

20 supposed to share this information. It's not a question of subordination

21 to the other agencies. As a matter of fact, when the HIS discovered

22 something new, they'd send that information to the SIS. So I think that's

23 -- that's moving sideways rather than up and down, although the

24 relationship with Minister Susak is a relationship of direct

25 subordination.

Page 226

1 Q. I didn't ask you about him being a part of the Ministry of

2 Defence. Of course he was an assistant minister and as such a part of the

3 ministry, but all this time I've been questioning you with the view to

4 clarifying before this Trial Chamber the kind of hierarchy that prevailed

5 in intelligence services. If we establish that, we will be able to come

6 to the role of Mr. Rebic.

7 JUDGE BONOMY: Mr. Krsnik, what is the relevance of the hierarchy?

8 MR. KRSNIK: [Interpretation] The hierarchy's relevant in order to

9 show that Mr. Rebic was not able to decide anything independently on his

10 own. According to the documents that have been now admitted into

11 evidence, we could easily establish that he could not have been part of

12 the Defence team.

13 JUDGE BONOMY: Well, it's not being suggested by the Prosecution

14 that this shows that he was part of the Defence team, and I can tell you

15 now that it doesn't. So if that's the only point you're interested in,

16 you can move on to something else.

17 MR. KRSNIK: [Interpretation] Then I'm grateful. Then I'll move

18 on, of course.

19 Q. In all those searches of archives, have you come across

20 information that the Defence team of General Blaskic manipulated

21 journalists and the media?

22 MR. AKERSON: Your Honour, objection to that question. It's

23 totally irrelevant.

24 JUDGE BONOMY: I thought you would have been delighted to hear

25 that.

Page 227

1 MR. KRSNIK: [Interpretation] Yes, Your Honour, maybe, but I wanted

2 to follow the reasoning of the Prosecutor to show that maybe somebody else

3 gave information to newspapers and manipulated them, although maybe it

4 does not have such importance.

5 JUDGE KWON: Could you ask more concrete questions.

6 MR. KRSNIK: [Interpretation]

7 Q. Was there anyone else, apart from intelligence services, who

8 manipulated journalists and newspapers concerning protected witnesses in

9 order to disqualify those witnesses or for other reasons?

10 A. Well, "manipulate" is an awfully strong word, but I will say that

11 we do have documentation, and it was one of the exhibits we decided not to

12 enter in this case today, that stories to discredit not protected

13 witnesses but potential witnesses in general were planted in the press by

14 Anto Nobilo. At least, according to this documentation.

15 Q. All right. Let us now finish with the transcript, because I am

16 expecting this Trial Chamber will admit them. So let us move on to the

17 transcript from the presidential office. And I think I will conclude with

18 that, Your Honours.

19 Did you talk to any live, living participants who attended

20 meetings in the office of the President Tudjman and who are mentioned in

21 the courtroom today until?

22 A. Any meetings or the meeting that happened specifically on the May

23 7th, 1997?

24 Q. I said clearly we talked only about one transcript today. I'm

25 referring only to that one.

Page 228

1 A. That particular transcript, no, I've never spoken to any of those

2 people. Certainly not about that transcript. Certainly not with

3 President Tudjman.

4 Q. I'm sorry, I'm not going to warn you about decency. We all know

5 that President Tudjman has been dead for six years. I asked you about

6 living witnesses.

7 Out of those living, we have Mr. Ivankovic, Rebic, and Tudjen.

8 Why didn't you ask them about the authenticity of the transcript? Aren't

9 they the only ones who could confirm it?

10 A. Well, I'm not a lawyer or leader of an investigation, so I don't

11 make these decisions, but I would imagine - and this wasn't a decision up

12 to me to make - but I would imagine that people who were identified in a

13 document as undertaking actions which at the very least were unethical if

14 not criminal probably wouldn't confirm the contents of that document.

15 Q. I think you violated the limits of decency again. How can you

16 talk about what's unethical or not? But it's a matter for your own --

17 it's a matter of your own upbringing.

18 Anyway, is there any list on that transcript, list of persons?

19 A. No, there isn't.

20 Q. Is there any audiotape that could confirm the authenticity of this

21 transcript?

22 A. Not to my knowledge.

23 Q. Is there a shorthand note, minutes?

24 A. Not to my knowledge.

25 Q. How can you then claim that it is authentic?

Page 229

1 A. Well, I mentioned earlier with the collection. I could go into

2 greater detail about the collection.

3 Q. Very well. Thank you. Thank you. It is clear to me, and I hope

4 it is clear to the Trial Chamber, that those are your arbitrary

5 conclusions.

6 JUDGE KWON: Mr. Akerson.

7 MR. AKERSON: The witness should able answer the question that's

8 asked of him.

9 JUDGE KWON: If there's anything he can add to what he had stated

10 earlier, but --

11 MR. AKERSON: I mean, the question was, and I think it's a

12 relevant question for this Court, How do you claim that this is authentic?

13 and then his answer was cut off. I think that's a question that should be

14 heard, frankly.

15 JUDGE KWON: Yes. The Chamber will allow the witness to answer

16 the question.

17 THE WITNESS: Well, I would be repeating what I said before.

18 JUDGE KWON: Then --


20 JUDGE KWON: Proceed.

21 MR. KRSNIK: [Interpretation]

22 Q. That is why I interrupted the witness. I heard the witness saying

23 what he just described, so I said okay, okay.

24 Wasn't every session recorded and taped, as you said yourself, a

25 separate entity, separate recording that forms one whole? If the session

Page 230

1 on the 17th is one event attended by one set of people, and the session of

2 the 18th was another event attended by a different set of people, aren't

3 both of them quite separate things?

4 A. I'm not sure I understand the question.

5 Q. Well, I'll try to clarify. I allow that the session attended by

6 the American diplomat who made his own notes from which the transcript was

7 made later is one thing, and the transcript may be correct, but that same

8 American diplomat did not attend all 600 sessions, did he?

9 A. No. And I -- I certainly don't want to give the impression that I

10 based my judgement on these transcripts on one witness.

11 Q. Could you please answer this: What was Mr. Markica Rebic doing

12 and which position did he occupy in 2000?

13 A. I believe from January 1999 to, I think it was either - and I'm

14 not positive, of course - I think January or February 2000 he was employed

15 as an advisor to the president of the Republic of Croatia for security

16 affairs, and I believe that it would have been in early 2000 that he

17 resigned from that position, and I'm not sure what he did after that.

18 Q. And I'm telling you that there -- that he's been retired from 2000

19 onwards. From the beginning of 2000 to this day, Mr. Rebic is a retired

20 general of the Croatian army.

21 A. I have no reason to doubt that.

22 Q. Thank you. Tell me, in view of the experience that I see you

23 have, whether a retired officer can have ongoing access to secret

24 archives, military secret archives.

25 A. That question involves the rules internal to the Republic of

Page 231

1 Croatia, which I don't know in any great detail. I do know that persons

2 who have been called for suspect interviews by the OTP have been allowed

3 access to certain materials, including the presidential transcripts, but

4 as far as what the rules are, as far as they're concerned, from their

5 point of view, I do not know.

6 Q. Are you aware of the rule of the hand-over, take-over of duty,

7 that all documents bear a number and during -- in the course of transition

8 of duty, they have to be compared and cross-referenced? It's the practice

9 not only in Croatia but all over the world

10 A. Well, I'm not sure I understand the question. I assume you mean

11 during the transition of one government to another. When you talk about

12 hand-over or take-over of duty, or one person from one office to another?

13 Q. I didn't hear the interpretation, and I don't know what you heard,

14 but I said clearly transition of duty. So when Markica Rebic is leaving,

15 he has to hand over his duties to somebody else, including the treasury,

16 et cetera.

17 A. Well, now I understand the question but I don't know the law, or I

18 don't know the rules.

19 Q. All right. In the course of your research, did you see anything,

20 beginning with the year 2000 until the year 2004, that was published in

21 the media and that could be ascribed to Mr. Rebic? I'm talking about

22 Hrvatski List until 2004, that four-year period.

23 A. Well, if you're talking specifically about Hrvatski List only in

24 that period, no, I'm not.

25 MR. KRSNIK: [Interpretation] Your Honour, I have concluded my

Page 232

1 examination. Thank you for your patience.

2 JUDGE KWON: Thank you, Mr. Krsnik.

3 Mr. Akerson.

4 MR. AKERSON: No questions.

5 JUDGE KWON: Very well.

6 [Trial Chamber confers]

7 JUDGE KWON: Mr. Tomljanovich, that concludes your evidence.

8 Thank you for coming, and you may now go.

9 [The witness withdrew]

10 [Trial Chamber confers]

11 JUDGE KWON: As for the transcript, which is P7, although the

12 Chamber will not give it much weight, but it looks to the Chamber to be

13 authentic and to a certain extent relevant, so the Chamber will admit it

14 into evidence. That can be given number 22.

15 And I'd like to ask the Defence whether it is minded to call the

16 witness. Just a second.

17 Before that, I have to ask -- in an orderly manner. I have to ask

18 Mr. Akerson whether you have completed your case.

19 MR. AKERSON: We would rest.

20 JUDGE KWON: Thank you.

21 [Trial Chamber confers]

22 JUDGE KWON: Yes, Mr. Ivanovic.

23 MR. IVANOVIC: [Interpretation] Your Honour, Mr. Marijacic's

24 Defence believes that Rule 98 bis of the Rules of Procedure and Evidence

25 of this Trial Chamber should be applied in this case. In our opinion, the

Page 233

1 OTP did not manage to prove in proprio motu that Mr. Marijacic had

2 violated in any way any order of this Court. Invoking the ruling of the

3 Appeals Chamber of the 16th, it is quite clear that protective measures

4 relate to closed session. From the statement of the witness we heard

5 today, it is quite clear that evening the Kingdom of the Netherlands

6 itself treated in a different way the session itself as compared to giving

7 of the statement. Rather, the high officer was not involved in giving a

8 statement but in making a statement before the Court itself.

9 Mr. Marijacic, or the incriminated text, did not publish a single

10 word from the closed session of this Tribunal. Therefore, we believe that

11 the situation is such that Rule 98 should be applied here, and we put that

12 to the Honourable Trial Chamber. Thank you.

13 JUDGE KWON: I assume Mr. Rebic's Defence will put the same thing.

14 MR. KRSNIK: [Interpretation] Yes, Your Honour, yes. Yes, we

15 support and join in this request, so I'm not going to take up more time.

16 JUDGE KWON: Any response from the Prosecution? Microphone.

17 MR. AKERSON: Your Honour, the Prosecution would ask that the

18 Defence attorney's motion be denied; that we have established a prima

19 facie case. What you have in front of you is a correlation and simply a

20 demonstrative aid of evidence in the closed-session testimony and in the

21 witness statement to show the overlap. The order that was violated by Mr.

22 Rebic and Mr. Marijacic, the first order that was violated, is the order

23 -- the oral order to go into closed session that Mr. Rebic and Mr.

24 Marijacic both admit in writing twice that they possessed and that they

25 went ahead and published the material anyways.

Page 234

1 Now, the order to go in closed session is contained in the

2 document they admit they possess, and it's very clear on the surface of

3 that document that the parties were intending to protect the identity of

4 the witness. Of course, the content of the testimony is inherently

5 protected. They published his witness statement, which is virtually the

6 same, as you can see from that comparison. But you have both of those

7 pieces. You have both the transcript, both the witness statement in

8 evidence. And based on the standard of proof for a 98 bis, the

9 Prosecution would assert that it's very clear that we have established our

10 prima facie case that a crime has been committed.

11 I can also then address the 2001 order very briefly. I mean, many

12 of these arguments are going to be repeated in the closing, but the 2000

13 order was printed in its entirety by Slobodna Dalmacija. It was

14 repeatedly referred to not only on the cover but in articles. It was the

15 focus of a series of articles that takes place over six weeks. This is a

16 newspaper which is a major newspaper in Croatia, and it was obviously a

17 major story that ran six weeks, and it was a story about the disclosure,

18 the defiant disclosure of material. That's the way it was couched in

19 these stories. Everything was pointing to that 2000 order. So

20 Mr. Marijacic -- it's a very reasonable inference to make that

21 Mr. Marijacic would know specifically about that order, and therefore that

22 order expresses a very general provision at the end that all publication

23 of statements must cease - 2004, 18 - he gets transcript in a statement,

24 he publishes the statement which is covered by the 2000 order. And so Mr.

25 Marijacic not only violated the oral order of the closed-session

Page 235

1 transcript but he violated the terms of the order that was issued on

2 December 1, 2000.

3 Lastly, Mr. Rebic, as to his violation of that order,

4 Mr. Marijacic in his May 5th article -- I mean, I -- let me just step back

5 one second.

6 We feel very comfortable that it's a very clear establishment

7 based on the closed session order. I'm now moving on to the 2000 order,

8 so this is a secondary argument, but it's clear from their admissions in

9 their written articles that they discuss the protections. They admit

10 deliberating and then deciding to go ahead and publish anyways. So it's a

11 very reasonable inference for you to make that one of the things they

12 would have discussed is the written court order from the Blaskic Trial

13 Chamber that Mr. Marijacic knew specifically about, and therefore Mr.

14 Rebic also knew about it, and they decided to go ahead and publish it, and

15 Mr. Rebic provided the material to a newspaper knowing -- I mean, there's

16 only one reason that you would have provided, or there's one principal

17 reason you would provide it to a newspaper, or I should say it's very

18 clear, when you provide something to a newspaper, that it's very likely to

19 be published. And so the order of 2000 which says that those who publish

20 or those who are responsible are both to be held accountable easily

21 establish a prima facie case against Mr. Rebic under the 2000 order.

22 JUDGE BONOMY: On a rather separate matter, can I ask you one

23 question. In December -- sorry, November 2004, when this article was

24 published, was there any remaining reason for the protective measure?

25 MR. AKERSON: It's quite possible there was not. However, I don't

Page 236

1 think that on the face of the transcript that that is a determination that

2 these two gentlemen could have made. And secondly, we would argue that it

3 doesn't really matter because the material was protected by court order

4 and that it is not up to a third party to, on their own, sui sponte, lift

5 the protections that were ordered by the Court.

6 JUDGE BONOMY: Mr. Akerson, this is a Tribunal dealing with the

7 most serious crimes imaginable, and I would certainly like to think that

8 if it's going to be dealing with contempt of court, it's dealing with

9 contempt of court where breaching an order really matters, but you're

10 telling me at the moment that there actually was no purpose to the order

11 at the time any alleged breach may have taken place.

12 MR. AKERSON: Your Honour, I'm -- I am not saying that there

13 wasn't a purpose for that order.

14 JUDGE BONOMY: No. But if the Prosecution can't tell us that

15 there was, then the only reasonable inference to draw is that there

16 wasn't.

17 MR. AKERSON: I would respond by saying, Your Honour, that we had

18 to contact the witness to ensure that because we don't know, and I think

19 what's facing the Court is the proposition that people on their own can

20 make that determination and decide that the protection should be lifted.

21 It may be appropriate but only after we consult with the attorneys who

22 asked for the protection and the victim himself.

23 JUDGE BONOMY: You see, if this case had concerned the divulging

24 of an identity of a person who had been protected for his own personal

25 security reasons, it would be very easy to see that prosecution was

Page 237

1 merited, perhaps more than merited, to give reassurance to people who come

2 -- are willing to come to the Tribunal that they will be secure if

3 protection's required. But that's not the sort of case we're dealing with

4 here. We're dealing with what might on the face of it be a technical

5 breach because the Prosecution doesn't review protective measures that the

6 Court has imposed, at its request, to decide whether they should continue

7 in force and -- or be reviewed by the Court. You're trying to put the

8 onus on the public in general to come to the Court and have protective

9 measures reviewed before they decide to do anything which might be a

10 technical breach albeit the reason for the protective measures has gone.

11 I appreciate that that's got perhaps very little to do with the

12 decision on whether there's a sufficiency of evidence, but at some stage

13 in these proceedings I have felt that I would have to express my grave

14 concern about whether this has been an appropriate use of the Tribunal's

15 resources.

16 MR. AKERSON: Your Honour, I'll simply respond by saying it's

17 never been our contention in this case that this is an interference with a

18 witness. That would have been a prosecution of a different kind. We're

19 saying it's an interference with the administration of justice, and any

20 time a newspaper publicly and flagrantly flaunts the authority of an order

21 of a Trial Chamber in protecting a witness on its own, that's a serious

22 violation. We consider it to be a very serious violation because that is

23 put into the marketplace and in the public in Croatia at a time especially

24 when we are recruiting witnesses, identifying witnesses for a huge case in

25 Croatia. And what they're saying on the newsstand in bold headlines is

Page 238

1 that the newspaper, on its own initiative, can decide that protection

2 orders aren't merited and can expose that witness. Whether it's true or

3 not is irrelevant. It's an interference with the administration of

4 justice, not an interference with that witness.

5 [Trial Chamber confers]

6 JUDGE KWON: The Chamber is of the view that in light of the

7 evidence led so far, there's a prima facie case so -- for the Defence to

8 answer. So the motion from the Defence is hereby denied.

9 So can I now ask the Defence whether it is minded to lead any

10 evidence for the Defence case.

11 MR. KRSNIK: [Interpretation] Your Honour, then the Defence will

12 have to call many more witnesses than it intended to call. At this moment

13 I cannot tell you who all these witnesses will be, but of course these

14 witnesses are going to be those persons who will refute everything that

15 the Prosecution presented.

16 JUDGE BONOMY: Well, I would like to know what these witnesses

17 will be dealing with that can't be dealt with through the medium of the

18 witnesses already listed by you. What is it that you're concerned about

19 that you think requires further witnesses?

20 MR. KRSNIK: [Interpretation] Your Honour, if we reserved the day

21 tomorrow, could you please be so kind as to give us enough time to

22 consult, my colleague and myself, so that we could give you a definite

23 answer tomorrow? I'm going to be completely frank and straightforward:

24 When we set out, I was even thinking of not calling a single witness, to

25 tell you the truth.

Page 239

1 Well, could you please give me enough time by tomorrow so that my

2 colleague and I could discuss the matter, or perhaps -- well, perhaps we'd

3 need a break now so that we talk to our clients and colleagues. Perhaps

4 we could continue in 15 minutes' time?

5 JUDGE ROBINSON: Mr. Krsnik, don't misunderstand the ruling that

6 the Chamber has made. You have mentioned previously that you're from the

7 civil law system, and many lawyers from the civil law system don't

8 understand very well the "no case to answer." It by no means means that

9 the Trial Chamber is satisfied beyond a reasonable doubt of the guilt. It

10 simply means that there is some evidence which you have to answer.

11 MR. AKERSON: Your Honour, I --

12 MR. KRSNIK: [Interpretation] Your Honour, I've been appearing

13 before this Court for long enough now, and I think that I do understand,

14 but I don't know if you've understood my point. If you could just give me

15 a short break to discuss this with my colleague and with our clients.

16 Perhaps we're going to reach a decision to give up on all witnesses.

17 JUDGE BONOMY: Your time's up anyway, Mr. Krsnik. You're timing

18 couldn't be better from the point of view of the motion you're making, but

19 Mr. Akerson has something to say.

20 JUDGE KWON: Very briefly, Mr. Akerson.

21 MR. AKERSON: If the Defence -- I mean, the Defence did not list

22 any other witnesses except for their client and one additional witness;

23 each of them, if I remember correctly. We would be objecting if they're

24 at this point now, after this long a period of time, seeking to augment

25 the witness list. I don't think it's necessary.

Page 240

1 JUDGE KWON: So we'll hear from the Defence as to their position

2 tomorrow morning at 9.00. The hearing is now adjourned.

3 --- Whereupon the hearing adjourned at 1.48 p.m.,

4 to be reconvened on Thursday, the 19th day

5 of January, 2006, at 9.00 a.m.