1 Wednesday, 19 September 2007
2 [Open session]
3 [The accused entered court]
4 [The witness entered court]
5 --- Upon commencing at 2.17 p.m.
6 JUDGE MOLOTO: Good afternoon to everybody.
7 Mr. Registrar, can you call the case, please.
8 THE REGISTRAR: Thank you. Good afternoon, Your Honours. This is
9 case number IT-04-83-T, the Prosecutor versus Rasim Delic.
10 JUDGE MOLOTO: Thank you very much.
11 Mr. Jusic, you already know this, but I still have to remind you
12 that you made a declaration at the beginning of your testimony to tell the
13 truth the whole truth, and nothing else but the truth, and that you are
14 still bound by that declaration.
15 THE WITNESS: [No audible response].
16 JUDGE MOLOTO: Good. Thank you very much.
18 WITNESS: KADIR JUSIC [Resumed]
19 Questioned by the Court: [Continued]
20 JUDGE HARHOFF: Good afternoon, General. We started out yesterday
21 by putting a few questions to you regarding the El Mujahid detachment, and
22 I think you answered thoroughly to those questions.
23 My next question to you relates to the relationship or the
24 relation between the 35th Brigade and the -- sorry, the 35th Division and
25 the brigades. And I don't know if it is possible to bring back on the
1 screen somehow, or maybe on the ELMO, the old organigramme that we were
2 looking at yesterday, Exhibit 379, because I need to ask you a few
3 questions about that once again.
4 Right. I don't know if it is possible, Mr. Registrar, to have
5 this organigramme displayed over the entire screen. Is that -- yes,
6 excellent. Thank you very much.
7 General, what is the relation between the 35 -- 35th Division,
8 which we see on the top left corner of the screen, and the brigades, which
9 are in the middle section of the right column?
10 And to be more precise, which of the two are superior in terms of
12 A. Your Honour, the relationship between the division command and
13 brigade commands within that division is that of a subordinate and a
14 superior. Therefore, the division command is a level of control which had
15 the right to use as necessary all of its subordinate units. The units we
16 can see in the left column are placed below the 35th Division, thus being
17 directly subordinated to it.
18 If I understood your question correctly, this would be my answer.
19 JUDGE HARHOFF: Then you may not have understood my question
20 completely. But let us just stay with what you have just told us. In the
21 left vertical column, we see the 35th Division on the top. And then we
22 have a number of units, I believe, underneath.
23 In the next box underneath, I see the 328th Brigade; is that
25 A. Yes, 328.
1 JUDGE HARHOFF: And the one under that, the 329th Brigade. And
2 then under that, the 351st or the 57th. I can't see -- 57th. I can't
4 A. It should be 351. 351.
5 JUDGE HARHOFF: And all the boxes below are all brigades; is that
6 correct? Or maybe not the two bottom ones.
7 A. The last two are not brigades. The third from the end and the
8 fourth are. The 327th Maglaj Brigade. The last two are a Howitzer
9 battery, as far as I can see, of 122-millimetre calibre, and the 35
10 engineering Company.
11 JUDGE HARHOFF: Excellent. So the picture we have here regarding
12 the 35th Division is that it is a centre of command over a number of
13 brigades and a Howitzer unit and engineering troops. Is that correct?
14 A. Yes, it is.
15 JUDGE HARHOFF: Then let's move to the right in the organigramme,
16 because here I see that there's also something called the 303rd Brigade,
17 the 314th Brigade and underneath that, the 330th, and so on. And in the
18 bottom of that column, we have the El Mujahid detachment. And in the next
19 column, I think it is the 7th Muslimanska Brigade. And under that one, we
20 have a number of units, but I cannot see clearly what these units are.
21 Now, my question is: What is the relation between the
22 35th Division and the 7th Muslim Brigade? It seems to me that the
23 35th Division would be a command that is superior to the 7th Muslim
24 Brigade. But I'm not sure and I want you to clarify for me.
25 A. The 35th Division was not superior to any units apart from those
1 immediately below, below the box that reads "the 35th Division" in terms
2 of establishment. The 37th Muslim [as interpreted], 303rd, et cetera,
3 the -- in the part that you mentioned, those are independent brigades that
4 were directly subordinated to the corps command. If necessary, I can
5 explain the boxes that you cannot read.
6 Below the 7th Muslim Brigade is the 3rd Light Artillery Battalion
7 of anti-aircraft defence, then the 3rd Independent Engineering Battalion.
8 JUDGE MOLOTO: Sorry. Sorry, sorry. Where is -- maybe you should
9 have this on the ELMO so that you point what you're talking about,
10 Mr. Witness. If somebody can help us please.
11 [Trial Chamber and registrar confer]
12 MS. VIDOVIC: [Interpretation] Your Honours, I apologise. I have
13 to correct the transcript. Page 4, lines -- line 5, instead of the
14 7th Muslim Brigade as said, it reads "the 37th Muslim Brigade".
15 JUDGE MOLOTO: Thank you, Madam Vidovic. That's precisely why I'm
16 beginning to ask that we be put on --
17 Okay. After the 37th -- after the 7th Muslim Brigade, you said
18 303rd. Now, I just want to know where you are, Witness, Mr. Jusic, which
19 column you are on.
20 A. I am now below the 7th Muslim Brigade. I think everything to the
21 left has been cleared sufficiently. It is the 303rd -- well, let's start
22 with the 303rd.
23 The 303rd Chivalrous Mountain Brigade.
24 JUDGE MOLOTO: Can you point at it, please.
25 A. The 303rd Chivalrous Mountain Brigade, here. [Marks]. The 314th
1 Glorious Mountain Brigade, here. [Marks]. The 330th Light Mountain
2 Brigade is here. [Marks]. The 319th Mountain Brigade is just below.
3 [Marks]. And the El Mujahid Detachment. That is that in this column.
4 Then in the next column, the same level of unit, there are the
5 7th Muslim Brigade, the 3rd Light Artillery Battalion of anti-aircraft
6 defence, the 3rd Independent Engineering Battalion, independent
7 engineering battalion. The 3rd logistics base, the 3rd Training
8 Recruitment Centre Zenica, and the last one is garrison command.
9 Those are the units. And in the last column, we have the
10 battalion of the military police, the 3rd Tank Company, the 3rd Mixed
11 Artillery Battalion, and the medical battalion. Those units were directly
12 subordinated to the 3rd Corps command, and they are at a lower level than
13 that of the division.
14 We have two divisions here within a chain -- within a command and
15 control briefing, we have the commander of the 35th Division, the
16 commander of the 303rd, the commander of the 7th Muslim, and all the other
17 brigades mentioned here that fall under the corps. They participate on
18 equal footing at such briefings.
19 JUDGE HARHOFF: Thank you, General.
20 Now, the reason I'm putting these questions to you is that I think
21 you mentioned yesterday during your testimony that the Vozuca action was
22 organised or was -- was directed by the 35th Division. Did I understand
23 you correctly? The -- the Vozuca -- the Vozuca pocket operation was
24 liberated under the leadership of the 35th Division. But I may have
25 misunderstood you and I just want to clarify.
1 A. Yesterday throughout -- I don't know about the interpretation and
2 I don't speak English, but throughout I was saying that the planning and
3 control of the Vozuca pocket operation, called Farz, was in the hands of
4 the command of the 3rd Corps. In that operation, the 35th Division
5 command was only one of the subordinate units to the command of the
6 3rd Corps. It received its task from the corps command the same as, for
7 example, the commander of the 7th Muslim Brigade.
8 The 35th Division did not participate in the planning; however,
9 once they were issued their task by the corps command, the 35th Division
10 worked further on its task in detail so as to be able to forward that task
11 to its subordinate units. It issued its subordinate units specific combat
13 JUDGE HARHOFF: Thank you, General. I think we should stop here
14 in our exploration of the organisational structure of the 3rd Corps.
15 My last line of questions to you relates to the possibility of
16 prosecuting crimes committed by anyone within the 3rd Corps structure.
17 Could you explain to us what -- first of all, what the normal procedure
18 would be if a crime were committed by any member of the 3rd Corps; and
19 then secondly, explain to us how these rules worked in practice; and
20 finally, if you ever became aware of the prosecution of any crime
21 committed by any member of the 3rd Corps.
22 So let's start out by you briefly explaining what is the normal
23 procedure to be followed if a crime is committed. Who takes action? Who
24 does what? Briefly, if you can.
25 A. Your Honour, I'll try to be as brief as possible. The security
1 service and the military police battalion were not subordinated to me in
2 any way. What I can tell you is what I know about the procedure and
3 nothing else. I can tell you the truth about the things I know, but I
4 cannot testify that it is 100 per cent correct. If a member of the
5 3rd Corps committed a crime, the Military Police Battalion, or rather, its
6 policemen, arrest such a person. The security organ, that is the
7 department of the security of the corps headed by the chief of security,
8 conducts an inquiry and questioning of the person suspected of having
9 committed that crime. They gather evidence and witness statements, and if
10 they have a basis to believe that indeed a crime was committed, it
11 forwards that file to the court.
12 As for the breaches of discipline or, rather, minor breaches,
13 those things are resolved within the unit.
14 JUDGE HARHOFF: I think we, because of the time, we shall have to
15 concentrate on -- on major, more serious crimes. So you say that the
16 military police would investigate the matter and bring it to the court.
17 Would this be done within the 3rd Corps structure, or would it be done by
18 military police under the ABiH as such?
19 In other words, does the 3rd Corps have its own military police
20 who would investigate a crime, and would it have it own lawyers to assess
21 the responsibility of that?
22 A. The 3rd Corps had its military police, and those tasks were
23 conducted by the military police of the battalion of the 3rd Corps.
24 The main person in -- during an investigation is the security
25 organ of the commander. Any prosecution or, rather, file submitted
1 requesting prosecution, they have to be done by the commander.
2 There is -- there was a lawyer who would go through the file, and
3 on his advice the commander would then send the file to the county
4 military court. The county military court, however, was not under the
5 competence of the command of the 3rd Corps. Such courts were independent.
6 I know that the then-president of the county military court was
7 Mr. Adamovic. I believe he presides over a court in Sarajevo these days.
8 He wouldn't have any sort of influence or intervention as regards his
10 JUDGE HARHOFF: Do you recall the name of the lawyer who was
11 attached to the 3rd Corps?
12 A. Within the command, as one of the assistants of the commander, in
13 particular in charge of legal affairs was Mr. Halilagic. I cannot recall
14 his first name. I think it was Jusuf.
15 JUDGE HARHOFF: Does Mr. Halilagic appear anywhere in this
16 organigramme? Where would he fit in?
17 A. Your Honour, this organigramme shows the units of the 3rd Corps.
18 It is not an organigramme of the corps command.
19 During my testimony, we didn't use such an organigramme. Perhaps
20 that is why some of the confusion ensued as to various -- the various
22 He is within the corps command. It is an independent department
23 for legal affairs. It is as independent as my staff was, for example.
24 The two of us were at the same level. I was a colonel and he was a
25 colonel. We were both within the 3rd Corps command.
1 JUDGE HARHOFF: Excellent. So if we were to put him in, he would
2 fit in somewhere in the top box, in the lower part of the top box where it
3 says "3rd Korpus - Zenica," along with you and the other of the 3rd Corps
5 A. Your Honour, it is difficult to speak about that using this chart.
6 The corps command had around 120 men, officers within it. One of them was
7 I, then another person was he, et cetera.
8 JUDGE HARHOFF: Let's just leave it. Because of the time
10 My next question was: If you were aware of any prosecution being
11 held against anyone -- any member of the 3rd Corps during your time as
12 chief of staff.
13 A. Your Honour, I wasn't aware of that. I don't know of a single
14 case. But they were not duty-bound to notify me, and I didn't find out
15 any other way as to whether any proceedings took place.
16 JUDGE HARHOFF: So when you testified yesterday that you had not
17 heard of any prosecution being held against any member of the 3rd Corps
18 before, I think it was, 1994 or was it 1995, then that has to be seen in
19 light of the fact that you would not be notified of any such prosecution;
20 is that correct?
21 In other words, there could have been prosecution -- prosecutions
22 held without you knowing about it.
23 A. Precisely so. It is possible. There was no duty on anyone's part
24 to let me know, and I wasn't the one who would sit down and listen to
25 stories very much.
1 JUDGE HARHOFF: Thank you. And so the final question is: Did you
2 ever hear of any legal action being taken against any member of the
3 El Mujahid Detachment either before, during, or after your service as
4 chief of staff?
5 A. Your Honour, I've never heard of that.
6 JUDGE HARHOFF: Thank you very much, General. This completes my
8 JUDGE MOLOTO: Thank you, Judge.
9 JUDGE LATTANZI: [Interpretation] Thank you very much. I regret
10 that I wasn't there yesterday, but I read the transcript of your testimony
11 of yesterday.
12 Now, there is one thing that I wanted to clarify with you
13 regarding a question that was put by the Defence counsel, and the question
14 was: "Can you agree that during 1992 and the first half of 1993 the
15 Supreme Command did not control the situation in the field outside of
16 Sarajevo?" And you answered that -- that you thought that there was no
17 control of the situation.
18 So first of all, I wanted to ask you whether this is something you
19 think or -- or do you believe it is a fact that the Supreme Command did
20 not control the situation? This is my first question.
21 A. Your Honour, I believe this to be so at the time I was a commander
22 and during that first year, nobody came to me to see firsthand what was
23 the situation out on the ground, and neither could I on a single occasion
24 establish contact with my superiors, and vice versa.
25 JUDGE LATTANZI: [Interpretation] Well, thank you very much. Now,
1 my next question is: What happened after the first half of 1993? Did
2 the -- did the Supreme Command have control of the situation at that time?
3 A. I don't know exactly what to tell you. Well, I was not fully
4 informed on what exactly happened or was happening, but I think there were
5 some ways supported by UNPROFOR for certain members of the Republican
6 headquarters or supreme -- well, first of all I have to clarify that the
7 name of my superior commander changed. At that time it was the Republican
8 TO, Main Staff, then Supreme Command. But at least as far as my superior
9 command was concerned, I think that they found a way for members of that
10 command to exit Sarajevo in an UNPROFOR vehicle and later on a tunnel was
11 dug underneath the -- a strip of the Sarajevo airport. It was 1.5 metres
12 high and 1.2 metres wide tunnel so that you can -- they could use it to
13 enter and exit.
14 As far as your question whether the commander could control the
15 situation after that time, I believe that their capabilities were enhanced
16 and the control was better, because part of the command of the General
17 Staff managed to get out of the besieged Sarajevo and could control on the
18 ground and issue tasks. I think that the situation improved after the
19 first half of 1993.
20 JUDGE LATTANZI: [Interpretation] Thank you, Witness.
21 One last question: And I'm referring back to the issue of the
22 General Staff and the staff of the -- the staff and the General Staff.
23 This is based off a question that Mrs. Vidovic put to you yesterday. And
24 then the Presiding Judge asked you to clarify the difference between the
25 staff and the General Staff. And the questions that were put by the
1 Presiding Judge Moloto were very useful to clarify these issues, but I
2 wanted to understand better.
3 On the basis of your answer to the questions put by the Presiding
4 Judge, can we conclude that the General Staff -- or rather - correction of
5 the interpreter - the staff was subordinated to the General Staff, and
6 then above all of this was a Supreme Command of the army? Did I get that
8 A. It's partly correct. The staff was subordinated to the General
9 Staff. It was a component part of the staff. Above the General Staff was
10 only the Supreme Command, which is a Civilian Supreme Command. It was not
11 a Military Supreme Command, which means the Presidency of the Republic of
12 Bosnia and Herzegovina. This was the exact structure: The staff, then
13 the General Staff, and then the Supreme Command, which is the Civilian
14 Supreme Command.
15 JUDGE LATTANZI: [Interpretation] All right. So basically the
16 Military Supreme Command, what was its name, then?
17 A. The supreme military command was the General Staff, but at
18 different times it had different titles. They changed the name. But the
19 General Staff prevailed for the longest time as a name. I'm afraid that
20 you have not fully grasped what I tried to explain.
21 If I may use two minutes to make a comparison. Let's take it that
22 this Tribunal is the General Staff, this Tribunal at The Hague. It is
23 comprised of -- so the Tribunal is comprised of some completely separate
24 trials or groups of Judges who are in charge of different cases. It also
25 is comprised of auxiliary services, guards -- I don't know the structure
1 of this Tribunal. But the general label is "the Tribunal," as far as I
2 know. This would be the General Staff.
3 Courts are part of this highly esteemed body of the Tribunal. So
4 the General Staff is a -- an umbrella under which we have the staff,
5 logistics department, security department, morale department, intelligence
6 department, et cetera, et cetera.
7 So if I've managed to use the two minutes to improve your
8 understanding of the General Staff and its structure, if I've done so, I'm
9 very grateful. Thank you.
10 JUDGE LATTANZI: [Interpretation] Well, thank you very much. It's
11 perfectly clear now. Thank you.
12 JUDGE MOLOTO: Oh, thank you very much. Sorry, Judge.
13 Mr. Jusic, yesterday I heard you testify - and I'm checking
14 whether I heard you correctly - that the El Mujahid Detachment was
15 subordinated to the 3rd Corps, then resubordinated to the 35th
16 Commission -- Division, rather, and then came back to the 3rd Corps. At
17 some stage.
18 A. Yes.
19 JUDGE MOLOTO: Are you able to tell us when the El Mujahid
20 Detachment was originally under -- directly under the 3rd Corps, from
21 when, to what date, and from when to when was it under the 35th Division,
22 and from when to when was it back with the 3rd Corps? If you are able to.
23 A. Your Honour, I cannot specify. As to make it my testimony, I can
24 give you a rough estimate.
25 JUDGE MOLOTO: Okay. If you are able to give a rough estimate,
1 please do.
2 A. Well, roughly - and it can diverge from reality maybe by 15 days
3 or one month - at the beginning of May, it was resubordinated to the 35th
4 Division. May 1995.
5 JUDGE MOLOTO: Wait. May I just interrupt you. Let's start with
6 before it went to -- before it was resubordinated. When did it first come
7 to the 3rd Corps for the very first time?
8 A. Your Honour, the El Mujahedin Detachment as a unit was
9 established -- rather, work on its preparation was started in August 1993.
10 When I say "work on its establishment," was work preparing for its
11 establishment. Before it did not exist. There were groups which were not
12 part of any system of command.
13 So from August 1993, that detachment was established, and it was
14 part of the 3rd Corps' composition.
15 JUDGE MOLOTO: So it was part of the 3rd Corps from August 1993.
16 I've just said: "So from August 1993, that detachment was established and
17 it was part of the 3rd Corps' composition." Are you interpreted
19 A. Yes, that's correct.
20 JUDGE MOLOTO: From August. Okay. Yes.
21 A. For a brief period, maybe in October, it was resubordinated to the
22 Bosnian Krajina Operational Group, out of which the 7th Corps grew. And I
23 believe that in autumn 1993 it was resubordinated to the operational group
24 of Bosnian Krajina.
25 JUDGE MOLOTO: May I just -- let me just understand that. You
1 said "for a brief period, maybe in October, it was resubordinated to the
2 Bosnian Krajina Operational Group, out of which the 7th Corps grew."
3 Now, do I understand you to say in October it became subordinated
4 to the Bosnian Krajina Operational Group?
5 A. Yes.
6 JUDGE MOLOTO: Now, you say -- now, was the Bosnian Krajina
7 Operational Group a unit of any corps? And if so, which corps at that
9 A. Your Honour, operational groups, in terms of establishment, were
10 precursors to corps or divisions. I correct myself. So instead of
11 divisions, before divisions were established, we had the Bosnian Krajina
12 Operational Group. I believe they were five in total, and divisions grew
13 out of them.
14 The 35th Division, before it was established, it used to be an
15 operational group and its name was "Bosnia," which -- and this is within
16 the composition of the 3rd group. And that operational group, the Bosnian
17 Krajina Operational Group, was part of the 3rd Corps' composition.
18 JUDGE MOLOTO: Okay. Then from the Bosnian Krajina Operational
19 Group in October 1993, what then became of the El Mujahid Detachment? How
20 long did it stay under the Bosnian Krajina Operational Group?
21 A. Your Honour, I cannot tell you precisely or out of my memory,
22 because at that time I left the 3rd Corps' command to take my duty in
23 Mostar in the 4th Corps, so I did not know for how long it remained in the
24 Bosnian Krajina Operational Group.
25 JUDGE MOLOTO: Okay. What you are saying is finally you are not
1 able to estimate from the period when it was under the 3rd Corps, the
2 period when it was under the 35th Division, and the period when it came
3 back to the 3rd Corps. You're not able to answer that original question
4 of mine. Because you went -- you went into these Bosnian Krajina
5 operational groups, which I didn't know about, when I was -- that was my
6 question, really. My question was the time.
7 A. Your Honour, you asked me from the establishment of that
8 detachment, and I started with the establishment of that detachment,
9 trying to emphasise that two or three months down the road it was
10 reconsolidated to the Bosnian Krajina Operational Group, and then it was
11 returned to the composition of the 3rd Corps; and after that --
12 JUDGE MOLOTO: When was it returned? When was it returned to the
13 3rd Corps?
14 A. That I cannot tell you, because I wasn't there. I was in Mostar.
15 What I can tell you is that in 1995, that detachment was resubordinated to
16 the 35th Division's command and that that resubordination lasted until the
17 end of the Vozuca pocket operations, practically until the Dayton Accords.
18 After the Dayton Accords, a decision was taken for that detachment
19 to be disbanded, and it was disbanded in December 1995. When I say
20 "disbanded," I mean that they were disarmed, had their equipment taken
21 away from them, and that those troops were demobilised.
22 JUDGE MOLOTO: Okay. Okay. Are you able to tell us when in 1995
23 it was subordinated -- resubordinated to the 35th Division?
24 A. As I said, I thought it was from May 1995 until November 1995.
25 JUDGE MOLOTO: Okay. Now --
1 A. Not -- I'm not 1 -- 100 per cent sure. This is roughly my
3 JUDGE MOLOTO: Now, you say after the -- it was subordinated until
4 the end of the Vozuca pocket operations, practically until the Dayton
5 Accords. And you say after the Dayton Accords, it was disbanded. So it
6 never went back to the 3rd Corps. Its life ended while it was under the
7 35th Division?
8 A. I cannot tell you with any degree of certainty. I cannot recall
9 exactly, but I know that the corps command disbanded the El Mujahedin
10 Detachment. But for it to be able to do so, it must have been returned to
11 the composition of the 3rd Corps units. And in the disbandment of the
12 3rd -- of the El Mujahedin Detachment, the 35th Division's command had no
13 role to play, so it was done by the 3rd Corps commander. But I don't know
14 when that order was issued to return it to the 3rd Corps command. I don't
16 JUDGE MOLOTO: Let me understand you. Are you saying the
17 commander of the 3rd Corps cannot disband a unit under the 35th division
18 unless he takes it out of the 35th Division and brings it back to the
19 3rd Corps before that disbandment?
20 A. Your Honour, a commander may take a decision to -- for the
21 35th Division to effectuate the disbanding, but formally the El Mujahedin
22 Detachment was part of the 3rd Corps. I know that nobody from the command
23 of the 35th Division took part in it being disbanded. I don't know when
24 the decision was written. It would be logical, in my mind, for that
25 decision to be issued and for that detachment to be returned to the
1 3rd Corps. I did not see that decision. But everything was done by the
2 personnel of the 3rd Corps command.
3 JUDGE MOLOTO: Thank you for that -- those answers, Mr. Jusic.
18 JUDGE MOLOTO: Thank you, both of you, for -- for -- actually not
19 both, all three of you, standing up. Thank you.
20 May we please move into private session.
21 Just a minute.
22 THE REGISTRAR: Your Honour, we are now in private session.
23 JUDGE MOLOTO: Thank you very much.
24 [Private session]
11 Page 2653-2657 redacted. Private session
19 [Open session]
20 THE REGISTRAR: We're now in open session.
21 JUDGE MOLOTO: Thank you very much.
22 Today when you were asked questions by Judge Harhoff, you
23 indicated that you were not aware of any prosecutions because they were
24 not duty-bound to inform you about prosecutions. Do you remember that?
25 A. Yes, I do.
1 JUDGE MOLOTO: Were they duty-bound to inform somebody, some other
2 person, some other superior about prosecutions?
3 A. The obligation that there was was to the corps commander and to
4 the security organ of the Superior Command, or rather, the General Staff.
5 JUDGE MOLOTO: So the obligation was to inform the corps commander
6 and the security organ of the General Staff.
7 A. Yes.
8 JUDGE MOLOTO: And did the security organ of the General Staff
9 have a duty to report to anybody?
10 A. Your Honour, I don't know that part of organisation, but as the
11 corps commander had to report to his commander, the -- his superior
12 commander had to report to his own commander. Of course, it was up to him
13 to decide whether it was of significant importance so as to report. I
14 don't know how things went in the General Staff.
15 JUDGE MOLOTO: Who is above the corps commander to whom the corps
16 commander must report to?
17 A. Above the corps commander was the General Staff.
18 JUDGE MOLOTO: Right. And now, was the security organ -- you said
19 the security organ was part of the General Staff, is that not so?
20 A. Part of any command, including the General Staff, yes.
21 JUDGE MOLOTO: Now, who in the General Staff would the commander
22 of the 3rd Corps report to?
23 A. Through personal contact, he would report to the commander of the
24 General Staff. In 1995, it was General Delic. It was an immediate
25 contact. However, as the corps command, according to the General Staff
1 orders, it sent reports to the operational centre of the General Staff and
2 the operational centre was part of the General Staff.
3 JUDGE MOLOTO: And any -- and the corps commander would have been
4 duty-bound to report to General Delic, wouldn't he?
5 A. I'm trying to explain the way things were. I'm trying to say the
6 following: There were regular standard daily combat reports sent by the
7 corps command, including the corps commander.
8 JUDGE MOLOTO: Let me -- let me interrupt you. We're not talking
9 about regular daily combat reports. We're talking about prosecutions.
10 Criminal behaviour on the ground by units or members of the units.
11 Let's -- let's stay focused on that one. Forget about daily reports. Who
12 was duty -- what is the chain of reporting of criminal activity that
13 happens on the ground and what are the obligations of each person right up
14 to the top?
15 A. Your Honour, please understand that I was chief of staff and not a
16 commander. I don't know what the commander did personally.
17 JUDGE MOLOTO: If you don't know, then say you don't know.
18 A. I can talk in principle.
19 JUDGE MOLOTO: Just say you don't know if you don't know, sir.
20 A. If that is the case, then I don't know --
21 JUDGE MOLOTO: Thank you very much.
22 A. -- if he reported anything.
23 JUDGE MOLOTO: Well, I was asking you about the -- the duty, not
24 whether anything did happen on the ground. What was the procedure? What
25 was the requirement?
1 A. I know that the procedure, as far as I know, was that it went
2 through the security organ and the legal affairs, that is, the lawyer
3 within the corps. That was the procedure that I know of. It should have
4 been like that. As to whether it -- it actually was in place, I don't
6 JUDGE MOLOTO: Okay. Let's take a break, and we'll finish off
7 when we come back at 4.00. Court adjourned.
8 --- Recess taken at 3.29 p.m.
9 --- On resuming at 4.05 p.m.
10 JUDGE MOLOTO: Just a very final question, and I think this is a
11 very simple one, just to confirm: Did I understand you clearly yesterday
12 that you were saying - excuse me - that the 7th Chivalrous Muslim
13 Liberation Brigade is the same thing as the 7th Muslim Mountain Brigade?
14 A. Yes.
15 JUDGE MOLOTO: Thank you very much. I have no further questions.
16 Yes, Mr. Mundis -- Mr. Wood. Any questions?
17 MR. WOOD: Yes, Your Honour.
18 Further re-examination by Mr. Wood:
19 Q. I'd like to clarify a few things from your testimony in response
20 to the Judges' questions, Mr. Jusic. In particular, you mentioned that
21 the Mujahedin detachment never attended briefings where tasks were handed
23 If the witness could be shown Exhibit 394, please. And I'll be
24 asking about line 7 of that, which is on page 2 in both B/C/S and in the
25 English translation.
1 JUDGE MOLOTO: What do you mean line 7? Entry number 7?
2 MR. WOOD: Yes, that is entry number 7, Your Honour.
3 JUDGE MOLOTO: Can we get page 2 of the English, please.
4 Q. Mr. Jusic, do you see item -- or item 7 in the B/C/S?
5 A. Yes, I do.
6 Q. And what does that indicate to you about what happened at 2100
7 hours at 09.09.1995?
8 A. It mentions a meeting of the corps commander with the El Mujahid
9 Detachment commander. Other officers were not present. It was not one of
10 the scheduled meetings. Therefore, I stand by the thing I said, which was
11 that they never came to official meetings.
12 Q. And just as a reminder, when did the battle begin, Operation Farz?
13 When did Operation Farz begin to be executed?
14 A. Operation Farz began on the 10th of September, 1995 at 6.00, a
15 minute or two before or after that.
16 Q. If I could have page 4 in both English and B/C/S shown to the
18 Now, Mr. Jusic, yesterday you mentioned that the Mujahedin also
19 would not submit reports. If I could draw your attention in particular to
20 item 21.
21 A. Where is the question?
22 Q. What does that indicate to you about the communication between the
23 El Mujahid and the 3rd Corps commander at 6.34 a.m.?
24 A. Your Honours, I would like that we show respect to each other in
25 this courtroom. I never said that the El Mujahedin Detachment never
1 reported on anything or anyone within the 3rd Corps command. The entry
2 that we can see here in item 21 means that Ajman called, as is stated, the
3 commander. It was a conversation done via certain communication means,
4 and he reported that the El Mujahid Detachment seized the facilities of
5 Paljenik and Ravno Polje. I commented on this document before when
6 examined by the Prosecutor. The fact that he called him -- well, he
7 simply made use of the possibility he had, that is, to use the
8 communication links to boast to the commander. He went -- he bypassed the
9 regular command and control chain, and he bypassed the division commander.
10 Technically speaking, he could have done this, and he did. This
11 is a conversation that took place. It was not a document in which he
12 reports on anything. He simply called him by telephone, I believe, and it
13 was merely a conversation. I don't think it falls under the topic of
14 reporting and the system of reporting that was in place. They were
15 completely out of it.
16 Q. Where -- I want to follow up a little bit on what you just said.
17 If you could tell the Trial Chamber, where was the 3rd Corps commander
18 when he received this report?
19 A. I believe the question to be imprecise. The 3rd Corps commander
20 was at the observation post of the 35th Division commander at the Klek
21 facility. He went there, and he was supposed to be there. I suppose he
23 Q. Where --
24 A. But he could have gone anywhere. In any case, he was supposed to
25 be there. I'm trying to say that I was never sure where he was, and it
1 was not in my competence to observe his movements. Perhaps he would tell
2 me that he would be there, and then I could reach him there. Whether he
3 was closer or further afield at that time, I don't know, but according to
4 this, he was supposed to have been at the observation post at Klek.
5 Q. Where was the 35th Division commander during the beginning of the
6 execution of Operation Farz?
7 A. I think -- I don't know exactly. I think he was at the
8 observation post as well.
9 Q. If I could have page 5 shown to the witness, and in particular, if
10 attention could be drawn to line -- item 25.
11 Mr. Jusic, what does this indicate to you about the reporting
12 between the El Mujahid Detachment and the 3rd Corps commander?
13 A. I think this was another call via a communication device whereby
14 he orally informed the commander on how far they managed to reach.
15 Q. If you could please look at item 28 on that same page. And, for
16 the record, that is page 6 in the English. Oh, I withdraw that. Item 28
17 is -- is also on page 5 in the English.
18 Again, sir, what does this indicate to you about the
19 communications between the El Mujahid Detachment and other units on that
21 A. I don't know whether my role here is that of an expert. I believe
22 to be a simple witness. I can see what it says here, and this is the
23 first time that I see it. Provided this is true, it would seem that the
24 El Mujahedin Detachment requested that the Stog facility be engaged, which
25 was transferred to the chief of staff at elevation or observation post
1 923. Therefore, he requested - we don't know who - to do something. We
2 only have Sivro's signature. This was the person who made the entry.
3 However, it doesn't state who the detachment commander requested to talk
4 to. I can only tell you what it says here: Activities during the combat
5 operation whereby the given unit requested artillery support and, I
6 presume, the commander approved.
7 Q. If you could also tell the Court what -- what is meant by the
8 letters "NS." Who is that, sir?
9 A. It says "chief of staff." "NS" is short for chief of staff. If I
10 connect that with the rest of the sentence, it was probably me, since I
11 was at elevation 923.
12 MR. WOOD: Your Honours, at this time I'd like to ask a question
13 of the witness based on an answer he gave in private session.
14 JUDGE MOLOTO: May the Chamber please move to private session.
15 [Private session]
11 Pages 2666-2671 redacted. Private session
12 [Open session]
13 THE REGISTRAR: Your Honour, we're now in open session.
14 JUDGE MOLOTO: Thank you very much.
15 MR. WOOD: Your Honour, without conceding the point that documents
16 can be shown to the witness in response to questions that were put to Your
17 Honours, the -- or by Your Honours to the witness, the Prosecution is
18 prepared to move on at this point.
19 Oh, one moment. On that point, Your Honour, though, I do want
20 to -- the next point that I was going to get to would include the
21 introduction of a document, but I believe this document would help to
22 clear up a lot of confusion around a certain aspect of the case that has
23 come up during the examination; that is, the questions put to the witness
24 by the Court.
25 With Your Honours' indulgence, I would like to show just one last
1 document to the witness. I think it will be helpful to the Trial Chamber
2 and to -- to the record. And for the record, that is document P02133.
3 Q. Mr. Jusic, have you seen this document before?
4 A. Yes, in preparation.
5 Q. Could you tell the Court, please, what is the effect from a
6 military standpoint of this order that is written on -- in this document?
7 A. Your Honour, if I have to reiterate, this is the notion of
8 resubordination, as I've already said, which means that the corps command
9 resubordinates of the -- resubordinates the El Mujahedin Detachment to the
10 35th Division and that they asked to be used, according to the
11 35th Division's plans, with a view of achieving the task that the
12 commander may give to them. Some tasks have been listed here, but to
13 resubordinate is a term in our military terminology which denoted
14 forwarding physically, in physical terms, and formally, a unit into the
15 composition of another unit - in this case, the 35th Division - which then
16 has the right and competence to command them and the duty to supply them,
17 in terms of logistics, security, et cetera, as in the case of all other
18 units which are formally part of its composition. This was -- would be
20 MR. WOOD: The Prosecution moves that this be tendered into
21 evidence, Your Honour.
22 JUDGE MOLOTO: The document is tendered into evidence. May it
23 please be given an exhibit number.
24 THE REGISTRAR: Your Honours, Exhibit number 396.
25 JUDGE MOLOTO: Thank you very much.
1 Q. Mr. Jusic, you mentioned earlier today on page 12, lines 1 through
2 3, that once the tunnel was built beneath the airstrip in Sarajevo it was
3 easier for commanders to leave Sarajevo, and the command and control
4 improved after that.
5 In relation to that, sir, when you were in the 3rd Corps, did you
6 see Rasim Delic there?
7 A. Given that the first year of the war passed that I never saw
8 anybody from the General Staff. Later on I did see him when he assumed
9 his duty, and I did see him at the command of the 3rd Corps.
10 Q. How often was that, sir?
11 A. It is very difficult for me to tell you how often, but given that
12 I was for a part -- for a time head of artillery, my office was along the
13 corridor that he had to take to reach to the commander's office, so it
14 seemed to me that this was often, but I cannot tell you how often. On a
15 monthly basis, maybe one, two, or three times a month. But since I had
16 not seen my superior officer for a year before that, it seemed to me much
17 more often than before.
18 Q. And during what period was this that you would see him on a
19 monthly basis maybe one, two, three times a month?
20 A. I'm referring to the period while I was head of artillery. June
21 1993 to approximately April -- March 1994. Over six or seven months.
22 Q. What about during the period of time when you were the 3rd Corps
23 chief of staff? How often would you see him in the 3rd Corps command?
24 A. I used to see him less often during that period of time. I could
25 not say how often, but far less often. It seemed to me that two months
1 would pass without me seeing him. I understand why he used to come more
2 often during that period. As I understood it, it was he was fresh in the
3 duty and I would have done the same, meet as many units as possible to
4 assess the situation and try to influence the battle readiness of such
5 units and improve C and C, control and command.
6 Q. Mr. Jusic, do you remember giving a statement to an OTP
7 investigator in 2006, in November -- in September?
8 A. Yes. Yes.
9 Q. And do you remember, sir, what it is that you said in that
10 statement, about how often Rasim Delic was in the 3rd Corps command?
11 JUDGE MOLOTO: Madam Vidovic.
12 MS. VIDOVIC: [Interpretation] Objection, Your Honour. The
13 Prosecutor has now obviously engaged in cross-examination of his own
14 witness, and I have not heard you, the Bench, allowing that.
15 JUDGE MOLOTO: Mr. Wood.
16 MR. WOOD: Yes, Your Honour. I'm not engaging in
17 cross-examination of this witness. In fact, what I'm doing is laying the
18 foundation to refresh his recollection about something that he said about
19 this earlier. And if -- if you see the line of my questioning, that is
20 where I'm headed, Your Honour.
21 JUDGE MOLOTO: Yeah, but, you know, one -- let me tell you,
22 Mr. Wood, once you start referring to the witness's statement, and you saw
23 I turned to Judge Lattanzi, you -- you've given us the impression that
24 you're now trying to impeach your own witness. Now, I think if you have
25 to remind him of something, you can remind him without necessarily going
1 to the statement. You know, and obviously when you try to impeach your
2 witness, you're beginning to try and cross-examining, just like Judge -- I
3 beg your pardon, Madam Vidovic is suggesting.
4 I don't know what the question is you are going to ask, and I
5 would like to hear the question before I rule.
6 MR. WOOD: The question at this time is: Do you recall --
7 JUDGE MOLOTO: The question was, yeah: Do you recall making a
8 statement to the investigator? But I don't know what the question is in
9 the statement that you're going to put.
10 MR. WOOD: Do you recall what it is you said to the OTP
11 investigator in September 2006?
12 JUDGE MOLOTO: Well, I'm sure he gave him a statement. He said a
13 lot of things to the investigator on that date. But then you've got to be
14 able to say exactly what is it you're talking about at this point that he
15 said about the --
16 MR. WOOD: Certainly, Your Honour. And I can even provide him a
17 copy of that statement.
18 JUDGE MOLOTO: No, that's not the point. We want to find out what
19 the purpose of this questioning is. That's why I said, what is it -- what
20 is it in that statement you want to refresh his memory about?
21 MR. WOOD: About the issue how often he saw the 3rd -- Rasim Delic
22 in the 3rd Corps command during his time as chief of staff.
23 JUDGE MOLOTO: But -- yes, Judge.
24 JUDGE LATTANZI: [Interpretation] Well, Mr. Prosecutor, all of this
25 is very interesting, but it would have been very interesting if you had
1 put all these questions during your examination-in-chief. It seems like
2 you are resuming another examination-in-chief. And I can understand that
3 when you're putting questions referring to strictly what the Bench put as
4 questions. But now you're referring to preliminary statements made to the
5 investigators. These are questions you should have put during your
7 JUDGE MOLOTO: [Microphone not activated] To add to that, I just
8 want to say this question of the tunnel, did it arise from the Bench's
9 questions or did it arise from your opposite member's questions?
10 MR. WOOD: I believe it arose from Your Honours' questions in -- I
11 don't have the page in front of me, but I believe it was about -- Judge
12 Lattanzi had asked about the command and control early in the war, in
13 1992. The witness answered that things did improve once the tunnel was
14 built and the commanders could get out into the field and --
15 JUDGE MOLOTO: Yeah. But Judge Lattanzi was asking about what was
16 said yesterday, because she read that in the transcript of yesterday's.
17 MR. WOOD: Yes, Your Honour.
18 JUDGE MOLOTO: So it -- the first time it arose was yesterday.
19 MR. WOOD: Yes, that's true.
20 JUDGE MOLOTO: That's right. Now -- and now you're trying to
21 clarify anything that Judge Lattanzi -- what is it that Judge Lattanzi
22 asked today that needs clarification about the tunnel?
23 MR. WOOD: It's -- it's more about -- not so much about the
24 tunnel, Your Honour, as about --
25 JUDGE MOLOTO: About --
1 MR. WOOD: The command and control and how things improved
2 afterward, after things --
3 JUDGE MOLOTO: Indeed. Indeed.
4 MR. WOOD: After the tunnel was built.
5 JUDGE MOLOTO: That's the relevance of the tunnel, yes. But what
6 is so unclear from what Judge Lattanzi asked that needs clarification on
7 the frequency of meetings?
8 MR. WOOD: I believe it adds context, Your Honour, and it's a
9 question that will help the record, if we can determine how often --
10 following up on that question --
11 JUDGE MOLOTO: Yeah, but what was unclear in what Judge Lattanzi
12 asked? You're not answering my question.
13 MR. WOOD: It adds further context to the --
14 JUDGE MOLOTO: No, no, what was unclear? I'm not asking what it
15 adds. What was unclear about Judge Lattanzi's questions and the answers
17 MR. WOOD: The time period, Your Honour.
18 JUDGE MOLOTO: The time period?
19 MR. WOOD: Yes.
20 JUDGE MOLOTO: Why don't you ask him about the time period, rather
21 than refer him to a statement?
22 MR. WOOD: Well, I've done that, Your Honour.
23 JUDGE MOLOTO: Well, why do you need the statement?
24 JUDGE LATTANZI: [Interpretation] I'm very sorry, but regarding the
25 question of the time period, the witness answered my question in a very
1 precise manner. He confirmed the period of time concerned. During the
2 cross-examination, he said from 1992 until the first half of 1993. So my
3 question referred to what happened later on regarding the command and
4 control after the first half of 1993, that is. And he answered very
5 clearly. He referred specifically to this second period of time. So I
6 fail to see the need to come back on these issues.
7 JUDGE MOLOTO: I think -- I think we need to rule on the
8 objection. The objection is upheld.
9 MR. WOOD: Thank you, Your Honour. The Prosecution has nothing
10 further from this witness at this time.
11 JUDGE MOLOTO: Thank you very much.
12 Any questions arising, Madam Vidovic?
13 MS. VIDOVIC: [Interpretation] Yes, Your Honour, a few.
14 Further cross-examination by Ms. Vidovic:
15 Q. [Interpretation] First of all, Mr. Jusic, I wanted to ask you
16 about our discussion about communication links between the corps command
17 and the El Mujahid Detachment. Do you agree that the operations' logs are
18 something that is not -- is not considered regular reports?
19 A. Yes. I explained that yesterday during my testimony. I explained
20 what the importance of operations logs was and what their purpose was.
21 Q. Therefore reports are regular reports from one command to its
22 superior command; am I correct?
23 A. That was the standard way of reporting, and they should have
24 encompassed everything that the given command meant to report to its
25 superior command.
1 Q. Only the things entered in such regular or interim reports
2 represents the regular line of reporting; is that correct?
3 A. Yes.
4 THE INTERPRETER: Would the counsel please pause between question
5 and answer and repeat her last question.
6 JUDGE MOLOTO: Did you hear that, Madam Vidovic? Could you please
7 pause between question and answer and could you please repeat the last
8 question. That's the interpreter asking.
9 MS. VIDOVIC: [Interpretation] Thank you, Your Honour.
10 Q. If something was not made part of a regular or interim combat
11 report sent to a superior command, then one can take no position regarding
12 that issue and no decision can be expected from the superior command on
13 the issue. Am I correct?
14 A. Yes.
15 Q. Now to turn to Their Honours' questions today that had to do with
16 submitting criminal reports and prosecutions. Mr. Jusic, is it correct
17 that you did not work for the security department and you did not receive
18 their reports?
19 A. That is correct.
20 Q. Do you agree that processing operational information gained in the
21 field, conducting investigations, and submitting criminal reports is a
22 procedure that is fully regulated by the regulations of the army of
23 Bosnia-Herzegovina and it was so in the war?
24 A. Your Honours, as regards the processing of crimes and the
25 perpetrators thereof, of the people who committed criminal offences, there
1 is nothing in particular that I can tell you about. Occasionally I even
2 consider whether to talk about it at all. Since I can only provide my
3 opinion, my assumption, which may not reflect the truth, I would prefer
4 far better that these questions be asked of someone else.
5 All I know is that there was a security organ and the military
6 police and that their competence included preventing committing criminal
7 offences. There is also a legal affairs organ that had to do with the
8 same thing.
9 If I may add another sentence: Security organs were not
10 well-liked by the commands. Occasionally, it even occurred to me, as
11 chief of staff, that they would control and monitor me in my private life.
12 Therefore, I never wanted to establish any contact with those people in
13 case they didn't want to tell me something.
14 Q. I know you didn't work in that field, but do you agree that there
15 were rules for the military police?
16 A. Yes.
17 Q. Rules for the military security?
18 A. Yes.
19 Q. The Law on Criminal Procedure that was in force during the wartime
20 in Bosnia-Herzegovina, and it clearly prescribed who it was that submits a
21 criminal report to the military and county prosecutor. Am I correct?
22 A. I know that such a thing was in existence, although it was not a
23 part of my job. I never read that particular law on the competencies
24 regarding criminal reports. All I know is that the organs I enumerated
25 were supposed to deal with such issues, and it was usually dealt with at
1 the level of units.
2 Q. Do you agree that there was a Law on Criminal Procedure in Bosnia
3 during the war?
4 A. Yes.
5 Q. His Honour asked you whether you know of a single criminal report
6 being submitted or prosecutions established, and you've answered to that.
7 During the time when the corps was formed and in the next one year's time,
8 over 800 criminal reports were submitted for different offences.
9 A. That would be a piece of information I didn't know.
10 Q. However, you do not exclude that possibility.
11 A. I do not. After the war, I learned that there was a plan of
12 activity of security organs in order to establish the existence of
13 criminal acts committed by foreign members of the army of
14 Bosnia-Herzegovina. I learned after the war that such a thing existed and
15 that the General Staff conducted such activity. However, during the war I
16 didn't know of that.
17 Q. Thank you. I would like to go back to the chart that you were
18 asked about by Their Honours. I believe it is Exhibit 379. 379.
19 Please have a look at it. You testified extensively on this chart
20 and today as well. Did I understand correctly that this chart of the
21 3rd Corps is incorrect in one of its parts?
22 A. I spoke about that yesterday, and my memory serves me quite well
23 in that regard. I know what the chart looked like, and in principle this
24 was not the correct chart of the 3rd Corps as regards its subordinate
25 divisions. I can go even further and say that 351st Liberation Brigade in
1 the first column under "the 35th Division" was never formed.
2 I'm trying to say that there are incorrections in this chart;
3 however, the rest is true. But it -- the way it's shown here is that if
4 the 3rd Corps commanded at the same footing to the 35th Division and to
5 the 328th Division. It was the other way around; the 35th Division
6 commanded directly to the 328th Brigade. Therefore the line above should
7 have been interrupted in the part which goes from the 35th Division to the
9 Q. Mr. Jusic, thank you. Just to clarify for the Court. Charts as
10 this one, in principle, can change. If one looks at this one, one should
11 be able to establish the time period it reflects, since units were being
12 moved in the field.
13 A. Not only were they being moved but there was constant
14 reorganisation of the army of Bosnia-Herzegovina and its subordinated
15 units, starting with the General Staff, which changed in terms of its
16 composition. I understand that because of the function I carried, we were
17 simply looking to come up with better solutions for the organising of the
18 army and its subordinate units.
19 That year, in 1995, the manoeuvre battalions were organised
20 instead of the 351st Liberation Brigade in Zavidovici. In its stead, the
21 5th Manoeuvre Battalion Brigade was formed.
22 MS. VIDOVIC: [Interpretation] Thank you. I have another question,
23 Your Honours, or maybe a couple that should be dealt with in private
24 session, please.
25 JUDGE MOLOTO: Could the Chamber please move into private session.
1 [Private session]
11 Pages 2685-2687 redacted. Private session
7 [Open session]
8 THE REGISTRAR: Your Honours, we're now in open session.
9 JUDGE MOLOTO: Thank you very much.
10 Yes, this brings us to the end of your testimony, Mr. Jusic. On
11 behalf of the Trial Chamber, may I thank you for coming to testify. You
12 are now excused. You may stand down. Thank you very much for coming.
13 THE WITNESS: [Interpretation] Your Honours, thank you for your
14 patience. After all, I am a person of 60 years of age, you know. Thank
16 JUDGE MOLOTO: Is that all? Only 60? Thank you very much.
17 THE WITNESS: [Interpretation] Yes.
18 JUDGE MOLOTO: Thank you very much.
19 [The witness withdrew]
20 JUDGE MOLOTO: I guess this is a convenient point.
21 Okay. Mr. Robson.
22 MR. ROBSON: Good afternoon, Your Honours.
23 JUDGE MOLOTO: Good afternoon, sir.
24 MR. ROBSON: If I may, I'd like to record something on the record,
25 with -- with the leave of the Bench. Essentially it concerns the way that
1 the Office of the Prosecution have dealt with the examination-in-chief of
2 this witness.
3 At the outset, can I say that the Defence was heartened by the
4 comments of the Bench, and in particular what Judge Lattanzi had to say,
5 where she stated in connection with the questions that arose from the
6 Prosecution arising out of the Judges' questions that these are questions
7 that should have been asked during examination-in-chief.
8 The Defence's position is that the Prosecution have a positive
9 duty when examining a witness in chief to lead evidence relating to the
10 charges contained in the indictment. We know that the indictment alleges
11 that General Delic had command and effective control over the 3rd Corps
12 and units subordinate to the 3rd Corps.
13 During the examination-in-chief, the Prosecution, in my
14 submission, asked no real questions as to this ultimate issue. They also,
15 in my submission, failed to ask any questions that went towards gathering
16 any evidence that might show an indicia of effective control.
17 JUDGE MOLOTO: May I interrupt?
18 MR. ROBSON: Yes.
19 JUDGE MOLOTO: What is the purpose of this address?
20 MR. ROBSON: Well, Your Honour, it's just to record our concerns.
21 I'll make it brief, if I may, and then -- if you don't understand
22 me or if you have any follow-up questions, I'd be very happy to -- to deal
23 with it. But in --
24 JUDGE MOLOTO: I -- I'll tell you why I asking you the question.
25 I do understand that you may have concerns, and get me right, you are
1 perfectly entitled to putting your concerns on the table if they have to
2 be put on the table. But I'm yet to come across any lawyer who does
3 everything by the book and never makes a mistake, and if they make a
4 mistake, I don't think it is for the Defence to give them a lecture on how
5 to conduct their case, particularly here in court. If they make a mistake
6 that prejudices the Defence, the Defence is entitled at that point to
7 stand up and object.
8 MR. ROBSON: Your Honour, this is exactly the issue. We say that
9 a matter has arisen today which prejudices the Defence. And bearing in
10 mind the witnesses that we are to -- the Trial Chamber is going to hear
11 from in the near future, a similar situation could arise in respect of
12 those witnesses, and that is the reason for putting on the record our
13 concerns now.
14 JUDGE MOLOTO: But when --
15 MR. ROBSON: Your Honour.
16 JUDGE MOLOTO: That situation arises, it is expected of the
17 Defence to jump up and object.
18 What concerns me is that you -- you tend to be giving the
19 Prosecution a lecture on how to conduct their case. And --
20 MR. ROBSON: Well --
21 JUDGE MOLOTO: I'm not quite sure that is an apposite.
22 MR. ROBSON: Well, Your Honour, I suppose what we're doing is
23 we're laying down a marker now so that not only the Trial Chamber is aware
24 but also the Prosecution is aware of -- of our concerns so that next time,
25 if a similar situation arises, we will be on our feet; we will be
2 JUDGE MOLOTO: Yeah, but you don't have to make a mark for that.
3 You've just got to be on your feet every time that situation arises
4 without having made a mark. It is your right at every turn to stand up
5 and object.
6 MR. ROBSON: Well, with respect, Your Honour, I believe it is the
7 right of the Defence to also draw to the Trial Chamber's attention matters
8 of concern so it can be recorded, because --
9 JUDGE MOLOTO: Okay. Now, is it your concern -- is it a matter of
10 concern to you that, according to you, the Prosecution has not presented
11 its case as it ought to have done?
12 MR. ROBSON: Yes.
13 JUDGE MOLOTO: That they didn't mention any indicias that you were
14 referring to and in that case in chief?
15 MR. ROBSON: Yes.
16 JUDGE MOLOTO: It is of personal concern?
17 MR. ROBSON: Yes.
18 JUDGE MOLOTO: Obviously if they don't mention that, according to
19 you, isn't it for you to argue at the end of the case that they didn't
20 present their case for you to meet and therefore --
21 MR. ROBSON: Your Honour, what we would say is by taking this
22 approach, and whether it's a conscious approach or an unconscious approach
23 by the Prosecution, we would say that it is giving rise to unfairness to
24 the Defence.
25 Perhaps if I can just briefly explain the reasons why.
1 JUDGE MOLOTO: Yeah, okay.
2 MR. ROBSON: And this is it: Having put a succinct number of
3 questions in examination-in-chief, the Defence dealt with -- it
4 cross-examined the witness based on those questions, focusing on those
5 succinct issues raised. We would submit that the Bench was somewhat
6 puzzled by the evidence of this witness. He is a chief of staff of the
7 3rd Corps, obviously someone in a high-ranking position and in a situation
8 that he potentially was aware of -- of many facts.
9 Now, we would submit that because of that, the Defence -- the
10 Trial Chamber was placed in a situation where it asked a lot of questions
11 of clarification. They lasted a long time. Some of those questions
12 touched upon ultimate issues in this case. Some of questions were put in
13 a robust manner. Now, the upshot of that was that that opened the door
14 for the Prosecution to come back and present a whole host of evidence
15 that, in our submission, should have been raised, if they wanted to raise
16 it, during the examination-in-chief.
17 Secondly, because the Prosecution were able to raise these issues
18 in subsequent -- consequence of your questions, the Defence lost the
19 opportunity to cross-examine the Prosecution on matters arising out of
20 those questions. And really that's -- that's the nub of my submission.
21 And --
22 JUDGE MOLOTO: Yeah, but --
23 MR. ROBSON: And so in essence, Your Honour -- I don't want to say
24 much more about this, but in essence it would appear to us that the
25 Prosecution could or has gained a tactical advantage by holding back an
1 examination-in-chief and waiting for the -- the Trial Chamber to put a lot
2 of clarifying questions to this witness.
3 JUDGE MOLOTO: I hold no brief for the Prosecution, and I see your
4 opposite member is on his feet. But before he gets on his feet, I just
5 want to get some clarification from you.
6 One, I don't know how the Prosecution knows what questions the
7 Bench is going to ask to enable them to withhold certain questions only to
8 put them after the Bench's questions, because the Bench could say, "We
9 have no questions." That's the one thing.
10 The other point that -- or the other message that I'm getting
11 coming from that last statement you are making, that the Prosecution gains
12 a tactical advantage by the questions from the Bench, I'm not quite sure
13 whether the underlying message is you, the Bench, stop asking questions
14 because you're giving these guys a tactical advantage or not, because --
15 you know, the Bench can ask any question it wants.
16 MR. ROBSON: If I may be clear, Your Honour. I'm not putting
17 that -- I'm not suggesting that.
18 JUDGE MOLOTO: You're not suggesting that.
19 MR. ROBSON: No, as I've said, the nub is that we lose the chance
20 to cross-examine on the answers.
21 JUDGE MOLOTO: But you have the chance to cross-examine the
22 witness after the questions by the Bench. And if there's anything that
23 the Bench raised that is -- that was misplaced by the Bench because the
24 Bench doesn't understand which way the things are going, you have the
25 opportunity to clear them up with the witness. And that's why counsel
1 have the opportunity to ask questions after the Bench has asked questions.
2 Is it absolutely correct then to say that you lose the opportunity
3 to -- to cross-examine the witness? Particularly because you ask your
4 questions after the Prosecution has asked its questions arising from the
5 Bench, the Bench's questions. So you do have the last word.
6 MR. ROBSON: Your Honour, in the normal course of events, you're
7 right, it wouldn't be a problem. Fairness would flow from that. But in
8 this situation, where, in our submission, the Prosecution has held back
9 with important questions and documents and then the questions of the Bench
10 have opened up a number of issues which has led to the Prosecution
11 introducing a whole host of documents that, in our submission, should have
12 been introduced at the outset, then we have lost the chance really to --
13 to hone in on those documents and those issues.
14 JUDGE MOLOTO: But you -- but you objected, and in this particular
15 instance the Bench upheld your objection.
16 MR. ROBSON: Yes. Your Honour, the Bench did uphold the
17 objection. As I've said at the outset, we were heartened by that. But we
18 did -- the objection pertained to only a number of documents that were
20 JUDGE MOLOTO: I thought you said you were heartened by the
21 comments of Judge Lattanzi, not the -- not the upholding of the objection.
22 MR. ROBSON: Well, both, Your Honour. It was ...
23 JUDGE MOLOTO: Okay. What relief are you seeking from the Bench?
24 MR. ROBSON: Well, Your Honour, I don't know whether you -- you're
25 in the position to order any relief. But what I would like the Trial
1 Chamber and the Prosecution to be aware of is that if in the future with
2 similar witnesses a similar situation arises, we will be putting forward a
3 robust objection --
4 JUDGE MOLOTO: I want to --
5 MR. ROBSON: -- whenever appropriate.
6 JUDGE MOLOTO: I want to believe that you have been putting up a
7 robust objection and a robust defence up to now, that you are not only
8 going to start from today.
9 Thank you very much.
10 Mr. Mundis, you had something to say?
11 MR. MUNDIS: I do indeed, Your Honours, but I do note the time.
12 We are past the normal point where we would break.
13 JUDGE MOLOTO: I noticed that.
14 MR. MUNDIS: With all due respect, if we could take a break
15 commencing now, take perhaps a 30-minute break, I would like to respond
16 in, not great detail, but certainly more than just a few moments to the
17 comments made by my learned colleague. I would -- I would respectfully
18 ask that we resume at 6.00 so that I could be afforded a -- an opportunity
19 to respond.
20 JUDGE MOLOTO: Thank you very much. We'll then resume at 6.00 and
21 come back.
22 Court adjourned.
23 --- Recess taken at 5.23 p.m.
24 --- On resuming at 5.59 p.m.
25 JUDGE MOLOTO: Mr. Mundis.
1 MR. MUNDIS: Thank you, Mr. President, Your Honours. I will be
2 brief, in light of the hour of the day. But I do want to make just a few
3 points in response to the comments made by my learned colleague
4 Mr. Robson.
5 The first -- the first issue, Your Honours, is -- and I completely
6 acknowledge the fact that the Presiding Judge earlier this afternoon in
7 the transcript clearly indicated that if a mistake was -- if a mistake was
8 made - and this was at line -- lines 20 to 22 of page 57, where the
9 Presiding Judge said, "I've yet to come across any lawyer who does
10 everything by the book and never makes a mistake - I want to be very clear
11 on behalf of the Prosecution team that I lead that, in our respectful
12 submission, no mistake was made. And I clearly acknowledge that Your
13 Honour said "if a mistake was made." But I want -- I want to put on the
14 record the position that we take, that no mistake was in fact made, simply
15 to clear that issue as far as we're concerned.
16 With respect to the issue of --
17 JUDGE MOLOTO: Let me just say I wasn't suggest a mistake was
19 MR. MUNDIS: No, I --
20 JUDGE MOLOTO: And I'm not suggesting the opposite either.
21 MR. MUNDIS: Yeah, I understand that, Your Honour. And I
22 appreciate that.
23 Let me -- let me go to the -- the broader issue that the Defence
24 raised, which goes to the way and means by which this Prosecution team is
25 leading the evidence in this case.
1 I would agree with comments made by the Presiding Judge. It is
2 clearly within the purview of the Prosecution as to how we go about
3 proving our case. I take issue with one thing my learned colleague
4 Mr. Robson said, again reflected on page 57, lines 5 through 8, where the
5 Defence submitted that the Prosecution asked no real questions going to
6 the ultimate issue.
7 I have said this before, and undoubtedly I will say it again in
8 this case, this case is largely a circumstantial case. It requires a
9 number of witnesses, each of whom will present one or perhaps two pieces
10 of a very large puzzle. If I were in a position to call one witness who
11 could testify about each and every aspect of this case, I would do that.
12 Unfortunately, we're not in a position to do that, and so we need to call
13 a number of witnesses, each of whom will provide the Trial Chamber with
14 evidence on what that individual witness knows about the issues relevant
15 to this case.
16 Perhaps the witness who just testified had very little to say
17 going to the ultimate issues to be resolved. Perhaps his evidence was of
18 more significance. That's an issue for the Trial Chamber to decide once
19 they've heard all of the evidence.
20 And so I do take objection to a submission that each and every
21 witness will have 100 per cent evidence on the ultimate issue in the case
22 that. Is simply not the way large cases of this type unfold before the
23 Trial Chamber.
24 This does, however, raise a broader question or a broader issue,
25 which, again, I'm sure that if we get to the phase where there's a Defence
1 case following the 98 bis submissions, the Defence very well might be in
2 the same or a similar situation that the Prosecution is in. All cases
3 heard before the International Tribunal - and this case is not an
4 exception - face time restraints and resource restraints due to a number
5 of factors beyond each and every one of our control. Those factors relate
6 to time available primarily, and the issue that -- that we are facing and
7 will face, as this case progresses, is very simple: We have time limits
8 and we understand those and we accept those. Within those time limits,
9 however, it may not be possible for us to present all of the evidence of a
10 given -- that a given witness may have to offer. And as a result of that,
11 decisions have to be taken as to whether to question a witness on a
12 particular issue or not.
13 Quite often we make a decision - sometimes at the -- at the very
14 last moment, given time constraints - that another witness who's scheduled
15 to appear in the future might be a better witness than the current
16 witness, and as a result of that we forego asking questions on certain
17 issues due to time constraints.
18 Similarly, as Your Honours are well aware, as everyone in this
19 courtroom is well aware, the Prosecution exhibit list has more than 2000
20 exhibits on it. My team is undertaking efforts to identify what we've --
21 what we are calling core exhibits, that is the most crucial documents or
22 videos or photos or other evidence that must be put before the Trial
23 Chamber before we can close our case.
24 Of these 2000 exhibits on our list, there are approximately 400
25 exhibits that have been admitted into evidence, probably slightly more
1 than half of which have been tendered by the Defence; meaning that at this
2 stage of the proceedings, the Prosecution has tendered into evidence
3 approximately 10 per cent of the exhibits that are on our exhibit list.
4 And I simply indicate that at this point to use the term my learned
5 colleague used earlier of putting down a marker that we will be revisiting
6 this issue in the near future with respect to reducing the scope of our
7 exhibit list, but also perhaps suggesting alternative means by which
8 evidence can be -- documentary evidence or other forms of tangible
9 evidence can be put before the Trial Chamber other than through
10 witnesses. Because to be quite frank and candid, Your Honours, at the
11 rate we're going, the Prosecution will not get in all of the evidence by
12 way of witness testimony that we envisioned.
13 And again, this -- these are the types of issues that we're
14 confronted with which lead us sometimes at the spur of the moment to make
15 decisions on which issues to forego with a witness or which documents that
16 were on the exhibit list listed for use with a witness to try to tender in
17 through other witnesses simply because of the resource limitations -- time
18 resource limitations that we operate under.
19 And I offer this as an explanation for some of the decisions that
20 were taken.
21 Again, I categorically reject any suggestion that errors were made
22 or mistakes were made. We are doing the absolute best that we can under
23 the circumstances. I believe this trial has proceeded extremely smoothly,
24 in terms of witness schedule and in terms of how the evidence has been put
25 before Your Honours. I appreciate the collegial atmosphere that -- that
1 this team enjoys with our colleagues across the courtroom. I would hope
2 that that would continue. But I -- but I -- I feel duty-bound to -- to
3 make the comments that I've made today in light of the comments made
4 earlier by my -- by my friend Mr. Robson, and I don't believe there's
5 anything further that I need to say on these issues.
6 As I've indicated, we will continue doing what we can under the
7 circumstances to put before Your Honours all the relevant evidence that we
8 believe is important for the Trial Chamber to render the ultimate issue --
9 or to render the ultimate judgement that it is the Trial Chamber's duty to
10 render. And I appreciate the opportunity to respond.
11 JUDGE MOLOTO: Thank you very much, Mr. Mundis.
12 Yes, Mr. Robson.
13 MR. ROBSON: I'll just respond very briefly, Your Honour.
14 First of all, the Defence, too, acknowledges that both parties are
15 under restraints in this case. It applies to both the Defence as well as
16 the Prosecution.
17 But just turning to what prosecuting counsel just said, he
18 objected to a submission that each and every witness will have evidence on
19 the ultimate issue. The Defence don't seek to make that submission. In
20 respect of the witness that the Trial Chamber heard yesterday and today,
21 what we would submit is that Kadir Jusic was an important witness really
22 in a key position, and he was someone who was able to speak as to matters
23 that went to the heart of this case.
24 I've heard what my learned friend says about each witness may come
25 and tell one or two pieces of the puzzle, but in our submission, the one
1 or two pieces of the puzzle that Mr. Jusic should have explained to the
2 Court should have been done during his examination-in-chief and not during
3 re-examination or even during questions following on from the Judges'
4 questions. And in a nutshell, that was our submission.
5 JUDGE MOLOTO: Thank you, Mr. Robson.
6 I did ask in the beginning whether there was any relief sought by
7 the Defence in making the submissions that they made. Mr. Robson
8 indicated that they are -- all they are doing is to draw a mark. I guess
9 I can close the discussion at that point.
10 Thank you very much. Can you call the next witness, please.
11 MR. MUNDIS: Your Honours, as we indicated by way, I believe, of
12 the Registry officer and the Trial Chamber's legal officer, the witness
13 that was scheduled to testify yesterday and today has had to return to
14 Bosnia and Herzegovina for personal reasons, and the witness who's
15 scheduled to testify tomorrow is not yet ready to commence
16 examination-in-chief, so we will reschedule the witness that was scheduled
17 for yesterday and today and we will pick up with the schedule where it
18 leaves off with the witness commencing tomorrow. And he will be -- his
19 direct examination will be ready to start at 2.15 tomorrow. I expect to
20 complete his examination-in-chief in less than the two hours indicated.
21 Perhaps not significantly less, but I don't believe we'll be any longer
22 than two hours, and I believe that should allow us to finish his testimony
23 by Friday afternoon.
24 JUDGE MOLOTO: Thank you very much, Mr. Mundis.
25 In -- in that event, then we're going to adjourn and reconvene
1 tomorrow at quarter past 2.00 in this courtroom.
2 Court adjourned.
3 --- Whereupon the hearing adjourned at 6.11 p.m.,
4 to be reconvened on Thursday, the 20th day of
5 September, 2007 at 2.15 p.m.