1. 1 Thursday, 26 June 1998

    2 (Open session)

    3 (The accused entered court)

    4 --- Upon commencing at 9.03 a.m.

    5 JUDGE CASSESE: Good morning. Could the

    6 Registrar please call the case?

    7 THE REGISTRAR: Good morning, Your Honours.

    8 Case number IT-95-13a-T, the Prosecutor versus Slavko

    9 Dokmanovic.

    10 JUDGE CASSESE: Thank you. We do without the

    11 appearances. They are as usual.

    12 I assume Mr. Dokmanovic can hear me well in

    13 Serbian. Thank you.

    14 First of all, let me thank both parties again

    15 for being so cooperative and for submitting the written

    16 text of their closing statements. It is greatly

    17 appreciated by this court.

    18 I understand we are going to hear two

    19 witnesses, one for the Prosecution and one for the

    20 Defence, but probably before that, we have a few

    21 housekeeping matters.

    22 MR. NIEMANN: If Your Honour wants to attend

    23 to those matters, yes.

    24 JUDGE CASSESE: Actually, I was expecting

    25 that you would propose -- the matters of which I was

  2. 1 thinking were the evidence, the various exhibits

    2 which --

    3 MR. NIEMANN: Yes, Your Honour. Fair

    4 enough. If that's what Your Honour wishes to address.


    6 MR. NIEMANN: We're in a position to respond

    7 to all those matters. I think I might ask

    8 Mr. Williamson to address Your Honours on them because

    9 he has looked at all of the issues overnight and can

    10 indicate what the position is. It's a collective

    11 effort.

    12 MR. WILLIAMSON: Your Honour, yesterday we

    13 received from the Defence the translations of all of

    14 these materials that came in through Mr. Pavlovic, and

    15 so I can go through these one by one. Some of them we

    16 have objections to and some we do not, so if perhaps we

    17 can just go through those exhibits relatively quickly.

    18 As to Defence Exhibit 116, we would object to

    19 its admission on the basis of relevance. Do you want

    20 me to go through the entire list, or do you want to

    21 make rulings as we go through on each item?

    22 JUDGE CASSESE: Let us make rulings as you go

    23 through each item. So you said 116.

    24 MR. WILLIAMSON: Yes, which appears to be --

    25 JUDGE CASSESE: Yes.

  3. 1 MR. WILLIAMSON: -- an inventory of

    2 violations of importation of weapons.

    3 JUDGE CASSESE: So you feel it's not

    4 relevant.

    5 MR. WILLIAMSON: We would object to this on

    6 the basis of relevance. And, Your Honour, if I might?

    7 The next one involves the same subject matter, so our

    8 objection would be the same to it, 117, so perhaps

    9 those could be handled together?

    10 JUDGE CASSESE: We have decided to admit both

    11 documents, although we doubt their relevance.

    12 MR. WILLIAMSON: Very well, Your Honour. As

    13 to Defence Exhibit 118 and 119, we have no objection,

    14 on a couple of conditions. The first one, in relation

    15 to 118, we just want to make sure that the date is

    16 clarified on the translation. On 118, the original,

    17 which is in Serbian, indicates a date of the 1st of

    18 January, 1991. On the translation, it's not clear if

    19 that's 1991 or 1992. So we just wanted to point that

    20 out, that the date should be '91, because the 1, it

    21 says 1 January --

    22 MR. FILA: Your Honours, there are two

    23 categories of those documents. One is the 1st January,

    24 1991, the other one is 1st January, 1992. We just

    25 wanted to show the difference. That was the purpose of

  4. 1 those documents.

    2 JUDGE CASSESE: Yes. About this document you

    3 have just cited, so the date is '91 there.

    4 MR. WILLIAMSON: Your Honour, on 118, it says

    5 situation on 1 January -- the date should be '91.

    6 JUDGE CASSESE: '91, yes.

    7 MR. WILLIAMSON: So it's not absolutely

    8 clear. And then as to both this exhibit and 119, we

    9 have no objection based on a similar document that we

    10 submitted being admitted, which would be Prosecutor's

    11 Exhibit 209. At that time, I think Mr. Fila had

    12 objected to it on the basis that these were not being

    13 admitted, and we agreed with that until we had seen the

    14 translations.

    15 So if the Prosecutor's document on the same

    16 issue is admitted, then we would have no objection to

    17 these being admitted.

    18 JUDGE CASSESE: Mr. Fila, would you agree?

    19 Not to object to 209?

    20 MR. FILA: No objection.

    21 JUDGE CASSESE: So both are admitted, also

    22 Prosecution Exhibit 209.

    23 MR. WILLIAMSON: Then, as to 120 and 121, we

    24 have no objection.

    25 JUDGE CASSESE: All right.

  5. 1 MR. WILLIAMSON: As to Exhibits 122, 123, we

    2 would object to these. These appear to be listings of

    3 cease-fire violations. At the time that this issue was

    4 raised, the Prosecutor lodged an objection on the basis

    5 that if information was submitted in regard to

    6 cease-fires, that we would feel the necessity to rebut

    7 it, and at that point, the court had cut off any

    8 testimony on that issue. So we have not had an

    9 opportunity to rebut this. We had substantial material

    10 on cease-fire violations as well on the opposite side,

    11 and so that was the basis for this objection.

    12 JUDGE CASSESE: We admit those documents,

    13 although again we doubt their relevance.

    14 MR. FILA: Your Honours, let me just

    15 explain. This is not the document on the cease-fire.

    16 This document, the first document, is not about the

    17 cease-fire, it's a letter to the Prime Minister of

    18 Croatia, Franjo Gregoric, that military property is

    19 being looted, 29 September, 1991. Not at the time when

    20 the cease-fire was on, but this is just general

    21 looting. The next document --

    22 JUDGE CASSESE: To which document are you

    23 referring? 122.

    24 MR. FILA: Yes. That's not during the

    25 cease-fire.

  6. 1 JUDGE CASSESE: And 123 is --

    2 MR. FILA: 123 is what you are talking about.

    3 JUDGE CASSESE: We have already ruled that we

    4 admit both of them, although, as I say, we very much

    5 doubt their relevance.

    6 MR. WILLIAMSON: Your Honour, that was my

    7 mistake. I had misread it so ...

    8 As to 124 and 125, we would object. This

    9 appears to be orders that are coming from the Croatian

    10 police asking for mobilisation, the second one in

    11 regard to protecting buildings of the US and other

    12 countries which were involved in the Persian Gulf

    13 conflict, and we fail to see the relevance of those.

    14 JUDGE CASSESE: We agree. They are not

    15 relevant. So they are not admitted.

    16 MR. WILLIAMSON: And then from 126 on, I

    17 believe that all of those materials relate to the

    18 uniforms, and if that's the case, we would have no

    19 objection to those items being admitted.

    20 JUDGE CASSESE: Yes. All right. Good. So

    21 they are admitted.

    22 MR. FILA: Just one question, Your Honours,

    23 if Mr. Williamson would allow? Do I have to submit

    24 those documents now in five copies or not?

    25 JUDGE CASSESE: Let me ask Mr. Bos.

  7. 1 THE REGISTRAR: If you just give one copy, we

    2 will provide copies to the court.

    3 MR. FILA: We have made them.

    4 THE REGISTRAR: If you have four copies, even

    5 better.

    6 MR. FILA: I did make those copies. All the

    7 documents that have been admitted, just to make things

    8 go faster.

    9 JUDGE CASSESE: Thank you. I wonder whether

    10 there are any other matters relating to the evidence?

    11 MR. NIEMANN: Yes, Your Honours. Regarding

    12 the matters yesterday.

    13 JUDGE CASSESE: Yes.

    14 MR. NIEMANN: Your Honours, the two

    15 videotapes that were sought to be tendered, they don't

    16 appear to have the -- oh, yes, they do. D156 and

    17 D157. We have looked at both of those, and we have no

    18 objection to them being admitted into evidence.

    19 JUDGE CASSESE: Good.

    20 MR. NIEMANN: The supporting statements to

    21 the videos, 145 -- 154 and 145 -- 155, 154 and 155, we

    22 have no objection to those, Your Honour. They're

    23 merely the statements that admit the videos, so that

    24 they were ...

    25 JUDGE CASSESE: Thank you.

  8. 1 MR. NIEMANN: Now, in relation to the

    2 exhibit, the statement of Mr. Novakovic, 158 --


    4 MR. NIEMANN: -- Your Honours, the position

    5 that we have on this is that the information about the

    6 drinking during the course of the interview is disputed

    7 by the investigator, and I have obtained a statement

    8 from the investigator setting out what he says the

    9 position was.

    10 Our position on it is that if this particular

    11 statement is to be admitted and our statement can be

    12 admitted alongside it on the record, we can see the two

    13 views of both this man and the investigator, and we'd

    14 have no objection on that basis.

    15 The problem we have, Your Honours, is that

    16 this suggestion, that they were drinking during the

    17 course of the interview, is a reflection upon the

    18 professional integrity of the officer, and he's an

    19 officer that is seconded to the Tribunal, he's not a

    20 U.N. employee as such, and we have wider interests of

    21 the government that supports his secondment. I would

    22 also be concerned if this matter is left unaddressed.

    23 So for that reason, we are anxious to ensure

    24 that if this allegation is made, which we don't wish to

    25 make an issue out of, frankly, we are most concerned

  9. 1 that there is on the record a statement from the

    2 officer where it addresses the question.

    3 JUDGE MAY: Mr. Niemann, I'm sorry to

    4 interrupt, but isn't there already evidence before the

    5 Tribunal, because he was cross-examined, as I

    6 recollect, about the drinking, and he said in terms

    7 that they weren't drinking, and I remember he was asked

    8 whether there was a bottle of whisky on the table, and

    9 he said not, but that afterwards they had gone to a

    10 restaurant, they had been taken to a restaurant, when

    11 Mr. Novakovic consumed a considerable quantity of

    12 alcohol and became incapacitated. That, as I

    13 recollect, was his evidence.

    14 So he has had a chance of dealing with it.

    15 MR. NIEMANN: Well, Your Honours, if -- I

    16 mean, that being the case then, perhaps my approach to

    17 it is wrong-footed, I should have just objected to this

    18 document going into evidence at all, because the issue

    19 has been addressed and dealt with. It has been raised

    20 in cross-examination, addressed, and dealt with.

    21 So if Your Honours are concerned about

    22 admitting a further statement, then that is the basis

    23 of my objection.

    24 JUDGE CASSESE: Yes, Mr. Fila?

    25 MR. FILA: I would first like to remove any

  10. 1 suspicion from Mr. Curtis and also from me. Far be it

    2 from me to want to besmirch the name of Mr. Curtis. On

    3 the contrary. Mr. Novakovic said something to Witness

    4 Vasic, and Witness Vasic conveyed that to you. Whether

    5 Witness Novakovic said the truth or not, we don't know

    6 that. But neither Mr. Vasic nor Mr. Novakovic said

    7 that Mr. Curtis had been drinking, which would bring

    8 his reputation into question. They both said that he

    9 never had a drop of alcohol. But if this is a problem,

    10 it's up to you, as far as the statement is concerned,

    11 because Mr. Vasic already used the statement in his

    12 testimony yesterday.

    13 JUDGE CASSESE: Thank you. Mr. Niemann,

    14 Mr. Fila is right, because in a way, the main point of

    15 that witness was precisely, in these statements, to

    16 show that it was Mr. Novakovic who actually drank

    17 whisky or whatever while they were talking. This is

    18 your allegation. I agree, nobody has ever said that

    19 Mr. Curtis drank anything except probably coffee or

    20 soft drinks.

    21 MR. NIEMANN: I think that the concern is,

    22 Your Honour, the suggestion that Mr. Novakovic -- a

    23 statement was taken from him in circumstances where it

    24 was known that he was intoxicated, and I believe that

    25 there was a suggestion that both of them had been

  11. 1 drinking, but I accept Your Honour's point there, that

    2 that's the case.

    3 JUDGE CASSESE: So, therefore, I wonder

    4 whether you could withdraw your objection to --

    5 MR. NIEMANN: Well, I don't withdraw my

    6 objection. This is all irrelevant now because it has

    7 been dealt with in the course of the trial, in the

    8 cross-examination. It's not a matter for rebuttal.

    9 JUDGE CASSESE: I mean, your objection to

    10 this document being tendered.

    11 MR. NIEMANN: Well, I do object to it, Your

    12 Honour, because it's irrelevant, yes.

    13 JUDGE CASSESE: You do object to it because

    14 it's irrelevant.

    15 Our ruling is that this document shall not be

    16 admitted into evidence because it is not relevant. I

    17 am speaking of D158 and D158A.

    18 MR. NIEMANN: Your Honours, with respect to

    19 the evidence about Witness Q, I note Your Honours'

    20 ruling on that in relation to the documents, so I'm not

    21 addressing that, but we were able to, during the course

    22 of the evening, to obtain a statement from Witness Q as

    23 to his recollection of the events. I have it

    24 available. I can provide it to my friends as to the

    25 position. I'm not submitting it in rebuttal or --

  12. 1 could this be shown to the Defence, please? -- to what

    2 has been raised by Mr. Fila in that statement, but it

    3 does address the matters that were raised in the

    4 examination of the witness, and I'm not making

    5 application to tender it, but I invite Mr. Fila to

    6 tender it so that the record indicates precisely what

    7 the position is.

    8 JUDGE CASSESE: Mr. Fila?

    9 MR. FILA: Very gladly, but I need to have a

    10 look. Maybe we could discuss the issue of sentencing,

    11 you could discuss the issue of sentencing while we're

    12 having a look at this, so as not to waste any more

    13 time.

    14 JUDGE CASSESE: All right. At the coffee

    15 break.

    16 MR. NIEMANN: The next matter, Your Honour,

    17 was the judgement of the court in Osijek which is

    18 Exhibit 160. We still have not received a translation

    19 of that document.

    20 THE REGISTRAR: I received it this morning.

    21 I have the translation here, so maybe I can ...

    22 MR. NIEMANN: Perhaps we could have a look at

    23 that, and while Mr. Fila is looking at the other one,

    24 we could look at --

    25 JUDGE CASSESE: So later on. We will come

  13. 1 back to D160 later on.

    2 MR. NIEMANN: That's all the matters I think

    3 that are outstanding.

    4 JUDGE CASSESE: Thank you. Mr. Fila, have

    5 you got any matter?

    6 MR. FILA: Well, yes. I apologise,

    7 Mr. Niemann, but we do have one more thing to discuss.

    8 In the meantime, we have received the report

    9 of the Dutch police regarding the tape. I would now

    10 like to submit this document because I would like to

    11 remind the Trial Chamber we still haven't had your

    12 decision whether we need the person who wrote the

    13 report here or whether we can just admit the report

    14 without hearing the testimony of the person who

    15 prepared it. That's the position of the Defence

    16 counsel. Once you see it, you will see that this is

    17 actually the case. That would be a better idea. So,

    18 please, if this could be distributed?

    19 While I read this document, maybe my

    20 colleagues from the Prosecution could read this

    21 document also.

    22 JUDGE CASSESE: When you said, Mr. Fila, when

    23 you said you were wondering whether we would like to

    24 ask the person who wrote the report to come here, you

    25 were referring to the police officer, Dutch police

  14. 1 officer, who wrote the report you are now tendering?

    2 MR. FILA: Yes, that's right, because I asked

    3 the Prosecutor to have the document admitted without

    4 this person having to come here, but Mr. Niemann wanted

    5 to have a look at the report before making a decision

    6 or taking a stand on that.

    7 JUDGE CASSESE: We also need some time

    8 because -- as soon as we are given this report, we will

    9 look into this matter.

    10 Now, I wonder whether we could put off all

    11 these matters until the coffee break so as not to waste

    12 time. We start with the two witnesses.

    13 MR. NIEMANN: I call Professor Gudjonsson.

    14 JUDGE CASSESE: While we are waiting for our

    15 witness, may I ask you whether you have received the

    16 reports of the medical officer and the confidential

    17 report of the commanding officer of the detention

    18 unit? It has been circulated. I hope both parties

    19 have received those reports.

    20 MR. KOSTIC: Your Honours, may I address the

    21 court for just a second --

    22 JUDGE CASSESE: Of course.

    23 MR. KOSTIC: -- before the witness arrives?

    24 We are in receipt of a two-page report by the

    25 witness that's coming now, Dr. Gudjonsson, that is

  15. 1 dated June 12th of 1998. I'm assuming that Your

    2 Honours have that report.


    4 MR. KOSTIC: The question I have before this

    5 witness testifies is that the witness renders an

    6 opinion on page 1 in a paragraph that is entitled

    7 No. 2, which is the bottom, the last paragraph on page

    8 1.


    10 MR. KOSTIC: In reading that paragraph, it

    11 appears to me that the doctor is commenting on a

    12 section of Dr. Petrovic's report. When I looked at the

    13 transcript of the testimony of Dr. Petrovic, I noted at

    14 page 3308 that Dr. Petrovic was foreclosed from

    15 testifying about the identification procedures; in

    16 other words, to discuss the testimony of the

    17 witnesses -- I think I'm not supposed to mention their

    18 names, if I'm correct, but you know the two witnesses

    19 I'm speaking about. So her testimony was limited to

    20 her work with Mr. Dokmanovic, his mental state, and so

    21 on.

    22 What I am asking the court now, and maybe I

    23 should have asked the Prosecutors beforehand, and I

    24 apologise for that, is whether this doctor, this

    25 particular witness, will actually go into discussion of

  16. 1 the topic of paragraph 2, in other words, the subject

    2 matter. I would think that that witness should be

    3 foreclosed from doing that.

    4 MR. NIEMANN: We agree, Your Honour. We're

    5 not going to raise it. It was addressed in the report

    6 because -- I don't know whether at that stage the --

    7 no, it hadn't. It was addressed in the report, but

    8 it's certainly not a matter which I'll be asking the

    9 witness about, and if I seek to tender his report, I

    10 will ask Your Honours to disregard the second paragraph

    11 in its entirety.

    12 MR. KOSTIC: In that view, in that view, Your

    13 Honours, with the agreement of Mr. Niemann, I feel now

    14 a little -- well, let me explain it to you.

    15 Because Dr. Najman, whose report you have,

    16 has also discussed to some degree, in response to this

    17 paragraph, the testimony of those witnesses, I'm

    18 assuming what's proper, and then the problematic thing

    19 is that she names these witnesses, and I'm not sure how

    20 we can cure that because I think her report may already

    21 be with you, at least with the Prosecution. I'm not

    22 sure if it's with Your Honours. We can either block

    23 it, or the only other way to cure that, Your Honours,

    24 maybe would be to have a closed session in regard to

    25 Dr. Najman's testimony, so that the identification of

  17. 1 those two witnesses are not released, and I'm asking

    2 the court for guidance on that.

    3 MR. NIEMANN: Your Honours, I'm not aware of

    4 them being confidential witnesses.

    5 JUDGE CASSESE: The two witnesses?

    6 MR. NIEMANN: They testified in public.

    7 MR. KOSTIC: Then it's fine. Then I'm

    8 raising a problem that is not a problem. I apologise

    9 for that.

    10 MR. NIEMANN: As for it being mentioned in

    11 their report, Your Honours, likewise, presumably it can

    12 be disregarded in the same way as we would ask that

    13 their paragraph 2 be disregarded.

    14 MR. KOSTIC: As to Dr. Gudjonsson, Dr. Najman

    15 may have comments about Dr. Wagenaar, but that's a

    16 different matter. Thank you very much.

    17 (The witness entered court)

    18 JUDGE CASSESE: Thank you. Good morning.

    19 Could you please read the solemn declaration?

    20 THE WITNESS: I solemnly declare that I shall

    21 speak the truth, the whole truth and nothing but the

    22 truth.

    23 JUDGE CASSESE: Thank you. You may be

    24 seated.

    25 THE WITNESS: Thank you.


    2 Examined by Mr. Niemann:

    3 Q. Professor Gudjonsson, do you hold a master of

    4 science in clinical psychology and a doctor of

    5 philosophy from the University of Surrey?

    6 A. Yes, I do.

    7 Q. Were you a lecturer in psychology, a senior

    8 lecturer in psychology, and now are you a reader in

    9 forensic psychology at the Institute of Psychiatry at

    10 Kings College in London?

    11 A. That's correct.

    12 Q. Are you also an honorary top grade clinical

    13 psychologist to the Maudsley and Bethlem Royal

    14 Hospital?

    15 A. Yes, that's correct. It's more commonly

    16 referred described nowadays as a "B" grade which is the

    17 most senior grade.

    18 Q. Are you affiliated with several professional

    19 bodies such as the British Psychological Society and

    20 the Magistrates Association, and are you a chartered

    21 clinical psychologist?

    22 A. Yes, that's correct.

    23 Q. In your scientific career, have you focused

    24 almost exclusively on forensic and criminological

    25 psychology?

  19. 1 A. Yes, that's correct.

    2 Q. In your career, have you pioneered the

    3 empirical measurement of interrogative suggestibility,

    4 and are the two suggestibility scales that you have

    5 developed now widely used in forensic practice as well

    6 as in research?

    7 A. That's correct. I also developed a test of

    8 compliance which has been published along with the

    9 other two tests.

    10 Q. Have you also recently been involved in the

    11 construction of a theoretical model of interrogative

    12 suggestibility which is guiding current research

    13 internationally?

    14 A. Yes, that's correct.

    15 Q. Are you involved in a long-term research

    16 project on the phenomena of false confessions and an

    17 investigation into the mental state and psychological

    18 characteristics of suspects detained at police stations

    19 for questioning?

    20 A. Yes, that's correct.

    21 Q. Does your research also relate to reliability

    22 of evidence and, in this respect, have you studied the

    23 nature and characteristics of suggestibility, memory,

    24 confabulation in psychiatric patients?

    25 A. Yes, I have.

  20. 1 Q. Do you also conduct research into amnesia

    2 after an offence?

    3 A. Yes, that's correct.

    4 Q. Do you have over 170 peer-reviewed scientific

    5 publications, including publications on homicide, lie

    6 detection, the attitude of offenders towards their

    7 crime, the credibility of witness accounts, and false

    8 confessions?

    9 A. Yes, that's correct.

    10 Q. Have you provided evidence in over 800

    11 criminal cases, 140 of which you have testified,

    12 including a number of high-profile cases colloquially

    13 known as the Guildford 4, the Birmingham 6, the

    14 Tottenham 3, and the Cardiff 3?

    15 A. Yes, that's correct.

    16 Q. Professor, I would like to now show you a

    17 document.

    18 A. Just to not have any misunderstanding, with

    19 regard to the 140 cases where I've testified, I've

    20 testified in court in just over 140 or just about 140

    21 criminal cases. Now, seven have been in the Court of

    22 Appeal. I did not testify directly or in person with

    23 regard to the Guildford 4 or the Birmingham 6. I

    24 provided reports which were used to re-open these cases

    25 and were used, but not with my regard to my having to

  21. 1 testify in these two cases in person in the Court of

    2 Appeal in London. That's just to correct in case there

    3 are any misperceptions there.

    4 JUDGE CASSESE: Thank you, sir.

    5 MR. NIEMANN: Thank you.

    6 Q. Professor, the document that is now shown to

    7 you, is that a copy of your curriculum vitae?

    8 A. This is an abbreviated version of my CV.

    9 I've got a much more extensive version, but this is

    10 just a brief version, and it doesn't actually list all

    11 my publications.

    12 MR. NIEMANN: Thank you, Professor. I tender

    13 that, Your Honours.

    14 THE REGISTRAR: The document is marked 264.

    15 MR. NIEMANN:

    16 Q. Professor Gudjonsson, in June of this year,

    17 were you approached by Mr. Milner of the Office of the

    18 Prosecutor with a request to evaluate the expert report

    19 by Dr. Vera Petrovic on Mr. Slavko Dokmanovic and to

    20 comment on the accuracy of the conclusions contained in

    21 that report?

    22 A. Yes, that's correct.

    23 Q. After accepting that request, did you

    24 subsequently study the report of Dr. Petrovic, and did

    25 you come to a number of findings which you laid down in

  22. 1 an outline of your preliminary views which you sent to

    2 Mr. Milner?

    3 A. Yes, that's correct.

    4 Q. In preparing your outline, did you rely on

    5 any information other than the report of Dr. Petrovic?

    6 A. No, only on the report.

    7 Q. I'd now like to show you this document.

    8 THE REGISTRAR: The document is marked 265.

    9 A. Yes, this is a faxed copy of my report. I

    10 actually have the original if you need it.

    11 MR. NIEMANN:

    12 Q. I think this one will be satisfactory.

    13 MR. NIEMANN: Your Honours, I seek to tender

    14 this but, as discussed previously, might paragraph 2 be

    15 disregarded by the court, and it's not sought to be

    16 tendered.

    17 Dr. Gudjonsson, in her report, Dr. Petrovic

    18 maintains that the personality features of

    19 Mr. Dokmanovic, his mental state, his behaviour after

    20 the arrest, and the lack of aggression in his earlier

    21 life do not correspond to his alleged behaviour at

    22 Ovcara. Do you agree with that finding?

    23 A. No, I do not because I do not think that

    24 these characteristics say anything about the kind of

    25 behaviour that may occur in wartime and that commonly

  23. 1 occurs in wartime. There have been many books and many

    2 research papers done in this area, and it clearly shows

    3 that what we're dealing with is group behaviour. We're

    4 dealing not just with an ordinary criminal behaviour

    5 where you typically find a history, a previous history

    6 of violence. We're dealing with something different in

    7 this context.

    8 Q. What, in this respect, is the significance of

    9 the research carried out by Stanley Milgram in the

    10 1970s?

    11 A. Well, basically, Stanley Milgram, I actually

    12 have a copy of his book here. That was a very

    13 influential book, because after the war, people were

    14 concerned about the extent to which the Germans were

    15 engaged in killing the Jews, pretty ordinary Germans

    16 who had no history of previous violence towards anybody

    17 who were engaged in some horrendous acts. And books

    18 were written about this, and Stanley Milgram produced a

    19 book in 1974 called "Obedience to Authority" where he

    20 did research that basically demonstrated that it is

    21 very easy to engage people in horrendous acts and

    22 inhumane acts when people are ordered to do so by a

    23 person in authority.

    24 MR. KOSTIC: If I may, Your Honours, I will

    25 object to the answer to this question. I ask that you

  24. 1 strike it from the record, because it is not based on

    2 any scientific research done by this witness. It also

    3 seems to indicate that the witness is repeating a work

    4 of someone else dealing with another historical period

    5 and, finally, is not based on the review or the

    6 assessment of what may have been done in the instant

    7 case that you're judging.

    8 So I think that he is not giving us a

    9 scientific opinion, and he is here as an expert witness

    10 as opposed to somebody who is here to discuss history

    11 or other works.

    12 JUDGE MAY: But, Mr. Kostic, the whole point

    13 is that he's an expert. And as an expert, he is

    14 entitled to refer to other works which have been

    15 produced. The whole point of his giving evidence is

    16 that he gives us his expertise, and that expertise

    17 includes the knowledge which he has of the works of

    18 others which, it seems to me, he's perfectly entitled

    19 to give.

    20 JUDGE CASSESE: If I may add one small

    21 comment, since I happen to have read this book. I

    22 think that either you give details about actually what

    23 the book is about or it does not make sense to comment

    24 on that book.

    25 A. Yes, I can certainly give details. A number

  25. 1 of experiments were done --

    2 JUDGE CASSESE: In a succinct way, of

    3 course.

    4 MR. NIEMANN: Perhaps you could --

    5 JUDGE CASSESE: We would like to rule that as

    6 a matter of principle, of course, expert witnesses are

    7 entitled to refer to books written by other scholars.

    8 However, with regard to the specific book in question,

    9 we really wonder to what extent it may be relevant to

    10 this issue under discussion.

    11 MR. NIEMANN: Your Honours, I'll move on.

    12 Q. In particular, do the reactions of

    13 Mr. Dokmanovic to his arrest and subsequent behaviour

    14 in custody tell you anything about his propensity to

    15 act as alleged in the indictment?

    16 A. No, it doesn't. There is nothing there that

    17 would give an indication one way or the other about his

    18 involvement in the alleged atrocities.

    19 Q. Now, in her report, Dr. Petrovic attaches

    20 great value to the remarks made by Mr. Dokmanovic

    21 recorded on the videotape, Exhibit D2, and she quotes

    22 one particular quote from Mr. Dokmanovic where he says

    23 "The world has never seen anything like it, not even

    24 that place Arnhem looked like this ... the immense

    25 grief..." I think you've been referred to that. What,

  26. 1 in your opinion, is the relevance of these remarks for

    2 a psychological assessment of Mr. Dokmanovic?

    3 A. Well, the difficulty is that it could mean

    4 many different things, because we don't know what it

    5 means, and I think it's only a question of

    6 speculation. I think it's better not to be reading

    7 anything particular into it, because it could be

    8 interpreted in so many different ways. I mean, one

    9 interpretation might be that he suddenly realised the

    10 enormity of what had happened or it may be that it was

    11 used in order to excuse what he had done.

    12 I'm not assuming guilt or innocence. I'm

    13 just saying there are many different ways of

    14 interpreting what is being said, and it would be better

    15 not to speculate about exactly what it means, because

    16 we don't know from a scientific perspective what

    17 exactly it does mean.

    18 Q. Now, in the analysis section of her report,

    19 Dr. Petrovic identifies a number of personality traits

    20 of Mr. Dokmanovic, and she lists anxiety,

    21 perfectionism, obsessiveness, dependiveness (sic)

    22 depression, paranoia and other traits that are

    23 characteristic of a neurotic person. In your opinion,

    24 does this material available justify that conclusion,

    25 that Mr. Dokmanovic possesses these traits?

  27. 1 A. Yes, I mean, as far as I can see from the

    2 report, there was an extensive clinical evaluation.

    3 There was psychological tests that were actually

    4 administered which are typically described as

    5 psychological rather than psychiatric tests, but the

    6 tests were administered. On the basis of what I've

    7 seen in the report about the test findings, I do think

    8 the conclusions about these characteristics are

    9 justified on the basis of the assessment being done.

    10 Q. In your opinion, does the presence of these

    11 characteristics say anything about, whether either

    12 positive or negative, the propensity of Mr. Dokmanovic

    13 to commit the alleged offences?

    14 A. No, they don't. It is very dangerous to be

    15 taking those characteristics and speculating about what

    16 he may or may have not done in wartime. It bears no

    17 relationship at all. There is no scientific evidence

    18 to indicate that these characteristics, one way or the

    19 other, have any bearing on the issue.

    20 Your Honour, it is distracting, the extensive

    21 conversation going on whilst I'm listening and

    22 speaking. It is distracting me.

    23 JUDGE CASSESE: Yes. May I ask Mr. Fila to

    24 be so kind as to refrain from talking. Thank you.

    25 MR. NIEMANN: No further questions, Your

  28. 1 Honour.

    2 JUDGE CASSESE: Thank you.

    3 Cross-examination?

    4 Cross-examined by Mr. Kostic:

    5 Q. Doctor, you are a doctor of psychology;

    6 correct?

    7 A. Yes, that's correct.

    8 Q. You have reviewed the reports of

    9 Dr. Petrovic?

    10 A. Yes, I have.

    11 Q. You have also reviewed the attachments to her

    12 report, have you not?

    13 A. Yes, I have.

    14 Q. And the attachments include, among other

    15 things, a battery of tests; correct?

    16 A. Yes, that's correct.

    17 Q. Commonly known as an "MMPI"; correct?

    18 A. Just to explain --

    19 Q. I was going to ask you if you would explain

    20 what an MMPI testing procedure is?

    21 A. The MMPI test that's used in this case is not

    22 the standard MMPI used in the scientific field

    23 generally. It is an abbreviated test. I've never seen

    24 an abbreviated version of the MMPI used in this way

    25 before. The MMPI was a test that was developed in the

  29. 1 1940s, and it was then restandardised about 15 years

    2 ago and changed the name to the MMPI-2, and it's been

    3 revised. It contains 567 items.

    4 It basically has three validity scales and

    5 ten clinical scales. And the validity scales indicate

    6 to what extent the responses can be relied upon as

    7 being reliable and valid. And the clinical scales

    8 monitor a number of different clinical conditions. The

    9 last scale, which is social introversion, is actually

    10 not a clinical scale but, rather, a personality scale.

    11 So there's an overlap between this being a clinical

    12 measure and it being a personality measure. It's

    13 really a combination of the two.

    14 Q. But it's commonly used, is it not?

    15 A. Yes, extensively used, that's correct.

    16 Q. You've used it yourself in your practice,

    17 have you not?

    18 A. I've used it extensively. I've also

    19 conducted research using it.

    20 Q. Now, in addition to using the standard tests,

    21 one of the other ways that expert witnesses like

    22 yourself reach a conclusion is through interviews with

    23 the subject; correct?

    24 A. That's correct.

    25 Q. And the reports that you have reviewed

  30. 1 indicates that Dr. Petrovic had spent quite a bit of

    2 time in the personal interviews of Mr. Dokmanovic;

    3 correct?

    4 A. Yes, that's correct.

    5 Q. And that is something that you would also do

    6 in your practice; correct?

    7 A. Yes, that's correct.

    8 Q. The difference, I suppose, between your

    9 practice and that of Dr. Petrovic is that she is a

    10 medical doctor, correct, a psychiatrist?

    11 A. Yes, that's correct.

    12 Q. So she may have some different insight than

    13 you do; correct?

    14 A. Yes, that's correct.

    15 Q. And, of course, she deals with the

    16 administration of medications; correct?

    17 A. That's correct.

    18 Q. Now, would you agree that the best way to

    19 reach a judgement or an analysis in regard to a patient

    20 is to have a number of personal interviews and

    21 observations of the patient?

    22 A. Yes, I agree with that.

    23 Q. Without that, you really cannot reach a good

    24 analysis of the problems, and I'm simplifying this,

    25 correct, as opposed to a diagnosis, but the problems

  31. 1 that the patient has?

    2 A. Yes, I agree with that, yes.

    3 Q. In addition, if you support your personal

    4 interviews and observations with the standard testing

    5 procedure, that is also helpful?

    6 A. Yes, that's correct.

    7 Q. And then if you are capable of reviewing

    8 other documents -- in a criminal case, of course, you

    9 would talk about the complaints or the statements of

    10 witnesses -- that also helps, does it not?

    11 A. Yes, that's correct.

    12 Q. Then, finally, if you have an opportunity, as

    13 in this case Dr. Petrovic did, to discuss the subject

    14 with other people who have observed Mr. Dokmanovic,

    15 such as the warden of the prison and others, that is

    16 also a helpful tool in your final diagnosis?

    17 A. Are you referring to Mr. McFaden?

    18 Q. For example, for example.

    19 A. Yes, I agree with that, yes.

    20 Q. Is there anything else that you can think of

    21 that Dr. Petrovic may have been able to do or should

    22 have done in terms of considering all of the

    23 documentation and information in reaching her

    24 diagnosis?

    25 A. I have no criticism of Dr. Petrovic with

  32. 1 regard to her assessment as such. My only observations

    2 are about the conclusions she draws from her findings.

    3 Q. Now, I'm assuming that what you have done is

    4 to review the report of Dr. Petrovic and then review

    5 the allegations; correct?

    6 A. Well, only the allegations as far as they are

    7 documented in her report.

    8 Q. And you have then assumed next that if the

    9 allegations are true, then her diagnosis is false;

    10 correct?

    11 A. No, no, no. I have to correct here. We're

    12 not talking about her diagnosis. She has made a

    13 diagnosis, and that's a clinical diagnosis, that this

    14 man has got certain clinical problems, including

    15 depression and anxiety and paranoid tendencies. That's

    16 the diagnosis. The inferences that are drawn from the

    17 diagnosis about his behaviour or how he might react in

    18 another setting is not a diagnosis. Those are

    19 interpretations. So I just want to make clear, this is

    20 not a diagnosis. These are her inferences that she has

    21 drawn about his behaviour, what he might behave like in

    22 other settings, based on the clinical findings.

    23 Q. She has done that on the basis of what's in

    24 the record; correct?

    25 A. Yes, yes, I agree with that. Yes, she's

  33. 1 drawn on her assessment and on the documents that she

    2 has seen in this case, in addition to the people with

    3 whom she has spoken.

    4 Q. Now, you would have preferred, would you not,

    5 in rendering your opinion the same ability as

    6 Dr. Petrovic has had, the ability to interview

    7 Mr. Dokmanovic, the ability to interview Mr. McFaden,

    8 things of that nature? Would you not have preferred

    9 that?

    10 A. It depends what my purpose is. If I had been

    11 asked to do a clinical evaluation of him, I would have

    12 said, "Yes, I do need to see him," and I would insist

    13 on seeing him if I was asked to perform a clinical

    14 evaluation. It is extremely unwise to perform a

    15 clinical evaluation of somebody you haven't seen. What

    16 I've been asked to do here is to comment on the report,

    17 which is not unusual for one to do. I'm not carrying

    18 out a clinical evaluation. I'm just commenting on the

    19 report and the conclusions in the report.

    20 Q. Now, to understand your testimony then, you

    21 feel that Dr. Petrovic did not have sufficient

    22 information in order to reach her conclusions?

    23 A. No, I'm not talking about what I feel. I'm

    24 talking about what I know. There's a difference. Now,

    25 what I know is the conclusions she has drawn are

  34. 1 unjustified because there are no scientific bases on

    2 which she can draw those inferences on the basis of the

    3 clinical findings.

    4 Q. And that is your opinion; correct?

    5 A. That's my opinion, yes.

    6 Q. And yours, of course, differs from

    7 Dr. Petrovic, does it not?

    8 A. Well, Dr. Petrovic has presented to evidence

    9 to substantiate her conclusions.

    10 Q. Have we talked about all of your opinions

    11 that you have in regard to this case so far?

    12 A. Yes, yes.

    13 Q. You have no other opinions to give in regard

    14 to Dr. Petrovic's report?

    15 A. No.

    16 MR. KOSTIC: I have nothing further.

    17 JUDGE CASSESE: Thank you. Mr. Niemann?

    18 MR. NIEMANN: Nothing in re-examination, Your

    19 Honour.

    20 JUDGE CASSESE: Thank you. All right, I

    21 assume there's no objection to the witness being

    22 released? Professor, thank you so much for coming here

    23 to give evidence in court.

    24 THE WITNESS: Thank you, Your Honour.

    25 JUDGE CASSESE: You may be released.

  35. 1 (The witness withdrew)

    2 JUDGE CASSESE: We're wondering whether we

    3 could -- we thought we could go on and call the other

    4 witness before the coffee break.

    5 MR. KOSTIC: Your Honour, because the next

    6 witness has some relationship to this witness, I would

    7 appreciate a short break just to be able to consult

    8 with the witness with a view that maybe I can shorten

    9 her testimony. I apologise for that, but I think it

    10 might be helpful.

    11 JUDGE CASSESE: Judge May was wondering

    12 whether we had received a report from your witness.

    13 MR. KOSTIC: Mr. Petrovic does have it, and

    14 if you would like, we could hand it up before, if

    15 there's no objection from our friends.

    16 JUDGE CASSESE: Yes, all right, why not? In

    17 any case, I think it's quite appropriate for us to take

    18 a break, say, a 15-minute break. Is that sufficient?

    19 MR. KOSTIC: That is sufficient, Your

    20 Honour. The other thing I would like to add, if

    21 there's no objection again all the way around, we would

    22 give you the CV, curriculum vitae, of the witness and

    23 the report so that you have the whole packet.

    24 JUDGE CASSESE: Yes. Let us, first of all

    25 then --

  36. 1 MR. NIEMANN: Might we also get a copy?

    2 JUDGE CASSESE: Of course.

    3 MR. KOSTIC: I apologise. I, in no way,

    4 meant to exclude Mr. Niemann.

    5 JUDGE CASSESE: All right. Let us, first of

    6 all, receive the document and then we will take a

    7 15-minute break.

    8 THE REGISTRAR: The CV will be marked D163

    9 and the report D164.

    10 JUDGE CASSESE: All right. So we rise now

    11 and we reconvene in, let's say, 20 minutes.

    12 --- Recess taken at 10.00 a.m.

    13 --- On resuming at 10.25 a.m.

    14 JUDGE CASSESE: Mr. Kostic?

    15 MR. KOSTIC: Your Honours, we do have one

    16 witness to offer to the court. I hope she is on her

    17 way. This is Dr. Najman or -- Mr. Fila has a question

    18 whether -- he would like to ask you about the document

    19 that you had talked about earlier this morning having

    20 to do with a witness and rebuttal testimony of a

    21 witness, I think it's Q, I think it's Witness Q. I

    22 will let Mr. Fila talk about it.

    23 JUDGE CASSESE: Yes. This is one of the

    24 matters we had decided to put off for discussion so

    25 that the parties could come to some sort of agreement.

  37. 1 Mr. Niemann?

    2 MR. NIEMANN: No, it was Mr. Fila, Your

    3 Honour.

    4 JUDGE CASSESE: Mr. Fila, this was for you to

    5 decide.

    6 MR. FILA: I don't understand the nature of

    7 this document, Your Honour. I don't know why it was

    8 given to me, the statement made by Witness Q

    9 yesterday -- today. I'm a bit disappointed because the

    10 OTP acknowledged, as my only quality, my speed. That

    11 is the only contribution I have made. That's what they

    12 say in their closing statement. However, in order to

    13 earn a compliment from Mr. Niemann that I contribute to

    14 the truth, I am not opposed to having this document

    15 included where Mr. Niemann deems it fit. Thank you.

    16 JUDGE CASSESE: So there is no objection.

    17 MR. NIEMANN: No, Your Honours, and Mr. Fila

    18 may have misunderstood what I was meaning, but there

    19 was -- our case, of course, is in rebuttal, but I

    20 wasn't seeking to tender it, I was merely inviting

    21 Mr. Fila to do so, if he felt it appropriate to do so,

    22 because it was a statement taken of the witness in

    23 relation to a document he tendered. I invited him to

    24 do it. It's entirely a matter for him as to whether he

    25 wants to do it or not, and if Mr. Fila is prepared to

  38. 1 do it, I have given it to him, and I invite him to

    2 tender it.

    3 JUDGE CASSESE: So Mr. Niemann is asking you

    4 whether you would be prepared to tender that document

    5 into evidence.

    6 MR. FILA: I'm not opposed to it. I cannot

    7 tender somebody else's document, though, but I am not

    8 opposed to Mr. Niemann doing it, and I agreed to that,

    9 as I have already told you. An additional document

    10 will do us no harm.

    11 MR. NIEMANN: If Mr. Fila has no objections

    12 and Your Honours have no objections, then I will tender

    13 it, Your Honour.

    14 JUDGE CASSESE: All right. Good.

    15 MR. NIEMANN: And if Mr. Fila doesn't have

    16 it, then it might be given to him.

    17 JUDGE CASSESE: What about the report of the

    18 Dutch police officer?

    19 MR. NIEMANN: We have no objection to that

    20 being tendered in evidence, Your Honour.

    21 MR. FILA: And also the judgement from Osijek.

    22 MR. NIEMANN: We have read that, Your

    23 Honours, and we cannot see how it's relevant, having

    24 read the Statement of Reasons of the court. It's not a

    25 matter that we say touches on any of the issues that

  39. 1 are before Your Honours for decision.

    2 JUDGE CASSESE: I think Mr. Fila put it out

    3 yesterday that it was for sentencing purposes that he

    4 was tendering that document, the judgement, the Osijek

    5 judgement.

    6 MR. FILA: Yes. Sentencing, yes. Your

    7 Honour, in my system, and also, I believe, in

    8 Mr. Niemann's system, it is not all the same whether

    9 someone was convicted and then is being re-tried.

    10 That's the point. That is why this judgement has been

    11 presented. In other words, that Mr. Dokmanovic does

    12 not have a criminal record. That's all.

    13 MR. NIEMANN: In that case, of course, Your

    14 Honour, I have no objections. I didn't understand the

    15 reason.

    16 JUDGE CASSESE: It was clarified yesterday by

    17 Mr. Fila. All right. So it is admitted into

    18 evidence. We are speaking, of course, of the Osijek

    19 judgement, and also the Dutch police report. What about

    20 the number -- the Dutch police report is tendered by

    21 the Defence, of course.

    22 MR. NIEMANN: By the Defence, Your Honour.

    23 THE REGISTRAR: Yes. So the court's

    24 documents will be marked as D160, and the other

    25 document D162, the report of the Dutch police.

  40. 1 JUDGE CASSESE: I wonder whether we could

    2 receive a copy.

    3 MR. FILA: It is very simple. It is an

    4 additional check on what I have already provided from

    5 Yugoslavia, that is, whether Mr. Dokmanovic's voice is

    6 heard at given points in time or not, that's all.

    7 MR. NIEMANN: Your Honours, there was one

    8 other matter. It related to the documents that we had

    9 received from the archives of the Security Council

    10 yesterday, being the letter and attachment to the

    11 letter by Mr. Mesic.

    12 Mr. Fila was going to look at it overnight

    13 because it was, in fact, a new document and he hadn't

    14 seen it, and so I don't know what his position on that

    15 is now. It was Exhibit P108.

    16 MR. FILA: That was a document in the

    17 Croatian language, if I'm not mistaken -- I mean in the

    18 Serbian language. It is easier for me. I'm a faster

    19 reader of Serbo Croatian than English.

    20 MR. NIEMANN: It was not. It was in the

    21 English language, Your Honour. It was written by --

    22 apparently -- in both languages, yes.

    23 MR. FILA: Yes. Since you accepted the

    24 document on the attacks on barracks, I accepted this

    25 document too because it's the same subject matter.

  41. 1 That's it. Yes, it's all right. Yes.

    2 JUDGE CASSESE: No objection. All right.

    3 What number has it got?

    4 THE REGISTRAR: That's document 108A.

    5 Correction. It's 108/1 because there was already a

    6 translation of the 108 so ...

    7 JUDGE CASSESE: I wonder whether you could

    8 bring in the witness?

    9 (The witness entered court)

    10 JUDGE CASSESE: Good morning. Could you

    11 please read the solemn declaration?

    12 THE WITNESS: I solemnly declare that I will

    13 speak the truth, the whole truth, and nothing but the

    14 truth.

    15 JUDGE CASSESE: Thank you. Mr. Kostic?


    17 Examined by Mr. Kostic:

    18 Q. Good morning.

    19 A. Good morning.

    20 Q. Would you state your name for the record,

    21 please?

    22 A. Ana Najman.

    23 Q. Make sure that you speak into the microphone

    24 that's in front of you.

    25 A. All right. Ana Najman.

  42. 1 Q. Ms. Najman, keep in mind that the court has

    2 your CV. What I would like to do is to just add or

    3 explain portions of your CV.

    4 Let me ask you a question. That will be

    5 easiest, I think. On your CV, there is a period of

    6 time, 1977 on, which talks about a specialisation in

    7 medical and clinical psychology at the medical faculty

    8 in Belgrade. Would you please explain that to the

    9 court or elaborate?

    10 A. Yes. In Yugoslavia, there are basic bachelor

    11 studies of psychology after which one gets a bachelor's

    12 degree of a psychologist, and after a certain time of

    13 practice, a psychologist has the right to work with

    14 patients. There are also studies at the faculty of

    15 medicine in the field of clinical psychology, and after

    16 these three-year studies, one gets the title of a

    17 specialist in clinical psychology. That means formally

    18 a higher degree of education. After three years of

    19 studies, such a person can also work with patients,

    20 that is to say, can acquire a lot more experience.

    21 Q. In addition, on the second page of your CV,

    22 where there's a year 1988, we have an entry which

    23 says: "Registered as forensic medicine expert with the

    24 Ministry of Justice of Republic of Serbia."

    25 First of all, tell us whether you are still

  43. 1 so registered and again explain that particular portion

    2 of your CV?

    3 A. This is still valid. I'm still registered as

    4 a forensic medicine expert so I am still such an

    5 expert, and I'm actively involved in this line of work

    6 as I work in the gaol hospital in Belgrade, that is to

    7 say, I worked there for ten years, so I have had

    8 practical experience in addition to the education I

    9 have received, and that is why I registered as a

    10 forensic medicine expert.

    11 What is customary in our country is to have a

    12 commission of experts together with a psychiatrist in

    13 all fields of criminal law and civil law and also

    14 psychological examination is compulsory, according to

    15 our law, for all persons who have committed crimes and

    16 also for juvenile delinquents and also perpetrators and

    17 victims who are younger adults. Younger adults are

    18 persons who have not yet turned 21.

    19 Q. Do you testify as a matter of course in the

    20 courts of your country?

    21 A. Yes, yes. Yes, I do.

    22 Q. What is the frequency and also if you are

    23 able to give me some estimation as to how many times

    24 you have done that?

    25 A. Approximately three or four times per week

  44. 1 for all cases where first a written report is submitted

    2 to the court and then there is oral questioning, and

    3 the number of cases has certainly exceeded 400, 500

    4 over this number of years.

    5 Q. You also do work with patients of your own.

    6 Do you see patients on some kind of a basis?

    7 A. Yes, I do. For two years now, I have been

    8 working at the psychiatry ward in Belgrade, and I also

    9 worked in the prison hospital at the ward for patients

    10 who were perpetrators of grave crimes and who, due to

    11 their illness, were being treated in hospital. That

    12 was the so-called warfare psychosis.

    13 Q. You have also indicated, and I'm not sure if

    14 it's on your CV, but you have told me and I would like

    15 to have you explain to the court, your experience in

    16 the area of the identification process, in other words,

    17 the psychology of identification. Can you tell us

    18 about your experience in that area?

    19 A. In Belgrade, at the faculty of philosophy,

    20 there is a laboratory for experimental psychology, and

    21 I attended a postgraduate course there and I cooperated

    22 with them, and I continue my cooperation with them.

    23 During my expertise, we have also made

    24 evaluations, assessments related to perception

    25 identification, the process of thought, disorders of

  45. 1 thought, and of other cognitive functions, so from that

    2 field I have had quite a bit of experience too in

    3 continuity that --

    4 Q. Have you testified in the courts of your

    5 country on issues of identification and related issues?

    6 A. Yes, I did.

    7 Q. On numerous occasions?

    8 A. Not that often, but often enough, and only in

    9 relation to criminal law, so criminal cases prevailed.

    10 Q. The criminal courts are the courts which

    11 generally have the identification process issue?

    12 A. Yes, yes.

    13 Q. Now, I'm going to just ask you a very limited

    14 question about the report of Dr. Petrovic. Have you

    15 reviewed the report of Dr. Petrovic?

    16 A. Yes, I have, in its entirety.

    17 Q. Have you read the attachments to the report?

    18 A. Yes, I have.

    19 Q. Did you review a section which is commonly

    20 referred to as an MMPI testing result or results?

    21 A. Yes, I did see the MMPI and the other tests.

    22 Q. What was the type of MMPI test that was

    23 administered to Mr. Dokmanovic by Dr. Petrovic?

    24 A. In this expertise on Mr. Dokmanovic, the

    25 MMPI test was carried out, 201, that is the abbreviated

  46. 1 version, that is the version that is used in Yugoslavia

    2 and which is standardised in terms of our own

    3 population in the 1980s. So this is a test which is

    4 absolutely considered to be verified in clinical

    5 practice and valid for our population.

    6 As far as psychological measurement

    7 instruments are concerned, I wish to note that they

    8 have to be tested on the population to which they're

    9 being administered. You will allow me just a brief

    10 explanation.

    11 There are different characteristics, for

    12 example, between the American population and the

    13 Yugoslav population, so this is just by way of

    14 comparison, but that is why this standardisation is

    15 made and that is why it has to be verified in terms of

    16 the population where it is administered. So this was

    17 standardised on our population, this test.

    18 Q. Do you use that particular test in your

    19 practice?

    20 A. Yes, I do. I use it every day.

    21 Q. You're satisfied it's an appropriate tool for

    22 your work and for your analysis and for your testimony

    23 in court?

    24 A. Yes, yes.

    25 Q. Now we're going to change topics and ask you

  47. 1 if you have reviewed a report which was submitted by

    2 the Prosecution of an expert witness called Willem

    3 Wagenaar?

    4 A. Yes.

    5 Q. You have that in front of you, do you not?

    6 A. Yes.

    7 Q. You have also submitted to the court, or

    8 through us you have submitted to the court, your own

    9 analyses and review of Dr. Wagenaar's findings in his

    10 report; correct?

    11 A. Yes, I have.

    12 Q. You have your report in front of you, do you

    13 not?

    14 A. Yes, I do. Yes, I do.

    15 Q. Because the court has both one of the expert

    16 witness's reports, which is Dr. Wagenaar, and also has

    17 yours, what I'm going to ask you is to turn to page 4

    18 of your report because we may be able to shorten your

    19 testimony this morning. I don't think anybody here has

    20 an objection to that.

    21 Do you have that in front of you?

    22 A. Yes.

    23 Q. On page 4, there is a section which is

    24 entitled "Recognition"; is that correct?

    25 A. Yes.

  48. 1 Q. What is contained under those two paragraphs

    2 is your analysis of Dr. Wagenaar's report; correct?

    3 A. Yes.

    4 Q. Do you have, in addition to what you wrote,

    5 would you wish to highlight or comment on your report

    6 in regard to that particular expertise of Dr. Wagenaar,

    7 and if so, please do so now.

    8 A. I just wish to clarify one point which was

    9 certainly written in this report too, and that is that

    10 I fully agree with the expert opinion presented by

    11 Mr. Wagenaar. It is certainly based on all the

    12 scientific postulates of psychology, notably in the

    13 period of perception. What I wish to highlight,

    14 though, is the fact that Mr. Wagenaar, as he also

    15 wrote, had in his report as a basic premise a general

    16 position, a general principle of perception that occurs

    17 with people. He did not bear in mind the specific

    18 situation, the statements of the mentioned witnesses,

    19 and he did not bear in mind the situation in which the

    20 perception took place. So he considered perception in

    21 so-called general ideal conditions, not in specific

    22 conditions, and that is what I wrote here too.

    23 When his postulates, which are absolutely

    24 correct and which are adopted and there is nothing to

    25 be added to them, really, are applied to a specific

  49. 1 situation, though, then his opinion, in a way, has to

    2 be modified because we have to take into account the

    3 specific situation and the effect of all other factors

    4 on human perception.

    5 Q. Do you wish to add anything else in regard to

    6 the "Recognition" portion?

    7 A. At this point, this would do. Thank you.

    8 Q. Then let's turn to the next section of

    9 Dr. Wagenaar's report. It is entitled "Remembering

    10 Uniforms." If I'm not mistaken, what you have done is

    11 to key your comments to the key in Dr. Wagenaar's

    12 report; is that correct?

    13 Would you now, first of all, give us a

    14 general statement about your -- not feeling, your

    15 expert opinion about the doctor's general statement

    16 about uniforms, and then we'll go into the subsections?

    17 A. What I have said previously relating to the

    18 general view also applies to the recognition of

    19 uniforms. So Mr. Wagenaar, in his first paragraph,

    20 discussed in general the recognition of uniforms. In

    21 this case, I will call it "form." And then he went on

    22 to discuss in paragraphs (a) through (h), separately,

    23 each of the situations.

    24 I also discussed this, but not in general

    25 terms, but I linked it with the testimonies of the two

  50. 1 witnesses which I have had the chance to see. So that

    2 is how I formed my opinion.

    3 Q. Part of your opinion is based on reviewing

    4 the statements of the two witnesses in question?

    5 A. Yes, absolutely.

    6 Q. And now I think -- I'm sorry, I interrupted

    7 you. Did you want to proceed to section (a) and

    8 discuss that?

    9 A. Well, if the Trial Chamber allows, we can

    10 discuss this paragraph (a).

    11 Q. I think it's the best way to do it. It's the

    12 most orderly. So why don't you go ahead?

    13 A. What I would like to stress is the fact that

    14 both witnesses mentioned the uniform in their first

    15 statement, so there were no additional questions that

    16 was the result of their perceptive act of what they

    17 saw.

    18 MR. NIEMANN: Now, my understanding, Your

    19 Honours, is that we weren't going to delve into the

    20 question of analysis of what the witnesses said and

    21 Dr. Wagenaar certainly didn't do that, he spoke in

    22 general terms only, and in my submission, this goes

    23 well beyond appropriate rejoinder because it wasn't

    24 discussed by Dr. Wagenaar and it's inappropriate for

    25 this witness to discuss it; and in any event, Your

  51. 1 Honours had ruled, when dealing with Dr. Petrovic's

    2 report, that dealing with the witnesses themselves

    3 specifically, it was a matter for Your Honours and not

    4 for the experts to testify on.

    5 So I object to any discussion going beyond

    6 general principles.

    7 JUDGE CASSESE: Yes. The objection is

    8 sustained.

    9 MR. KOSTIC: I just want to be clear. No

    10 dishonour to the court. I have reviewed Dr. Wagenaar's

    11 report, and pursuant to that, I think this particular

    12 witness was retained. I thought that it would be fair

    13 for her to comment on anything that's in the record in

    14 regard to this identification issue.

    15 JUDGE CASSESE: No, anything which is in the

    16 report, in Dr. Wagenaar's report.

    17 MR. KOSTIC: But she cannot comment on

    18 Dr. Wagenaar's report unless she goes into a concrete

    19 discussion, I don't think.

    20 JUDGE CASSESE: I confirm that it would not

    21 be appropriate to go into any details and to discuss in

    22 particular the testimony of those two witnesses.

    23 MR. KOSTIC: I just have to understand the

    24 ruling, Your Honour, I'm not being difficult,

    25 because -- is what you're saying is that you're

  52. 1 foreclosing discussion of the two witnesses because

    2 there was no other testimony by these witnesses? I

    3 don't understand the ruling, I guess.

    4 JUDGE CASSESE: This is a rejoinder witness.

    5 You are calling this witness in rejoinder, and it's

    6 rejoinder to Professor Wagenaar's report.

    7 MR. KOSTIC: Yes, sir.

    8 JUDGE CASSESE: Therefore, the witness should

    9 confine herself to touching upon those issues which

    10 have been raised by Professor Wagenaar in his written

    11 report which has now been admitted into evidence.

    12 Therefore, she should not touch upon matters which were

    13 not dealt with by Professor Wagenaar.

    14 MR. KOSTIC: So that your ruling is -- you

    15 said rejoinder. I think I probably understand it as a

    16 rebuttal or surrebuttal or rejoinder --

    17 JUDGE CASSESE: We call it rebuttal and

    18 rejoinder.

    19 MR. KOSTIC: Yes, sir. Thank you. What you

    20 are saying then, therefore, because Dr. Wagenaar did

    21 not mention the witnesses specifically, that you would

    22 foreclose me to do that.

    23 JUDGE CASSESE: Yes.

    24 MR. KOSTIC: All right. I just wanted to

    25 understand the ruling because I'm unclear. Okay.

  53. 1 Q. What I need you to do then, Dr. Najman, is

    2 without discussing the testimony of the other

    3 witnesses, I do need you to comment generally on

    4 whether you agree with the opinion of Dr. Wagenaar on

    5 the issue of remembering uniforms or do you not agree,

    6 or do you feel that Dr. Wagenaar has, in some way,

    7 omitted something or, in your opinion, gave an opinion

    8 that you differ with? So if you can do that in general

    9 terms, I think that might satisfy the court.

    10 A. Yes. I fully agree with the explanation

    11 given by Dr. Wagenaar. In general terms, it is

    12 absolutely based on the laws of perception.

    13 What I wish to add, however, also in general

    14 terms, is that perception of colour, that form is a

    15 primary principle in every act of perception in human

    16 beings. I would also like to stress that it alters

    17 under the influence of certain factors, internal and

    18 external.

    19 I would just like to add, if the Trial

    20 Chamber allows me to, I would like to stress the effect

    21 of internal factors which, in this case, are deemed to

    22 be more important. These are psychological,

    23 motivational, emotional factors and factors of

    24 situation or the circumstances in which the person

    25 finds himself in. Psychological factors are extremely

  54. 1 important for the way in which we perceive things.

    2 Without the influence of those psychological factors,

    3 we have the perception which is, so to speak,

    4 conditionally speaking, "normal." If the effect of

    5 psychological or emotional factors prevails, our

    6 perception changes.

    7 This also relates to -- just to make things

    8 short -- to emotional, social factors, and

    9 physiological factors as well. I would also like to

    10 mention those. First of all, we mean certain

    11 physiological circumstances that a human being can find

    12 himself in, whether one is hungry or well-fed; also

    13 stress, the effect of stress can also be deemed

    14 physiological but also psychological factor.

    15 But as we all know, the biology and

    16 physiology of the human being reacts in such

    17 situations.

    18 Q. Dr. Wagenaar's report also talks about

    19 colours, and he mentions the colour blue, and you also

    20 have in your report talked about that colour. Can you

    21 explain that to the court, the importance of that?

    22 A. Well, this is also a principle which has been

    23 established as existing in perception. The primary

    24 colours are very important in the perception. What we

    25 see the first moment is colour, form, and shape. In

  55. 1 every human organism, there is the biological factor

    2 which regulates the constancy of our perception. For

    3 instance, we don't see this colour in a different

    4 tone, hue, if the external factors that affect us are

    5 minimal. So there is a certain constancy of

    6 perception, and it is extremely important, because due

    7 to that, our lives have been made easier. Because the

    8 perception of colour, for instance, or of form does not

    9 change as fast as the outside stimuli can change. So

    10 there is a certain biological regulator in the human

    11 perception regulating both the colour, the shape, and

    12 the form.

    13 Q. My last question: Dr. Wagenaar also talks in

    14 one portion of his report about the wearing of

    15 insignia, and you also talk about insignia. Can you

    16 explain that to the court?

    17 A. All right. The perception of details belongs

    18 to the secondary process of perceptive experience. So

    19 the primary, as I said, is the perception of colour,

    20 shape and form; and the secondary is the perception of

    21 details. The secondary process is much more influenced

    22 by those internal and external factors. And we cannot

    23 overlook that because, to a great extent, the

    24 perception of those details may differ from one man to

    25 another. It does not mean that the stimulus that they

  56. 1 perceived, the object, was different. Their internal

    2 experience was different. It differed from man to man

    3 and, of course, the factor of personality which is not

    4 to be overlooked.

    5 MR. KOSTIC: I have nothing further. Thank

    6 you.

    7 JUDGE CASSESE: Thank you, Mr. Niemann?

    8 Cross-examined by Mr. Niemann:

    9 Q. Dr. Najman, do you know Professor Wagenaar?

    10 A. No.

    11 Q. Do you know of his work?

    12 A. I apologise. I did not hear your question.

    13 Q. Can you hear me now?

    14 A. Yes, yes.

    15 Q. Do you know of the work of Dr. Wagenaar?

    16 Have you ever read any of his material that he has

    17 produced?

    18 A. Not directly.

    19 Q. Did you know that he has a reputation of

    20 being one of the most eminent experts in the world on

    21 the question of identification? Were you aware of

    22 that?

    23 A. Yes.

    24 Q. In fact, I think it's generally accepted in

    25 international circles that there's probably only one or

  57. 1 two other people who could profess to have the same

    2 high degree of competence as Dr. Wagenaar in this

    3 particular area; would you agree with that?

    4 A. Yes.

    5 Q. Now, you said that you appeared in courts in

    6 your own country. Have you ever appeared in any other

    7 courts, apart from those in the former Yugoslavia,

    8 before and testified?

    9 A. Do you mean outside of Yugoslavia?

    10 Q. Yes.

    11 A. No.

    12 Q. When you appear, can you tell us what is the

    13 bulk of the work that you do? What are you primarily

    14 concerned with when you testify in courts in your

    15 country?

    16 A. My testimony before the court is the result

    17 of my previous work with the person I examined. I also

    18 have insight into the court record, a psychological

    19 evaluation, then I write the report, and only then do I

    20 testify before the court giving similar answers as I do

    21 here. On the one hand, we have the Defence asking

    22 questions and, on the other, we have the Prosecutor

    23 asking questions and, very often, the Trial Chamber

    24 itself.

    25 Q. So, am I right in saying that the vast bulk

  58. 1 of what you do in your own courts is to make a

    2 psychological assessment, presumably, in most cases, of

    3 the person who is being accused of a crime, and then

    4 report to the court on your opinion of that accused

    5 person's psychological state; is that fair?

    6 A. Yes.

    7 Q. I think you said that, however, you have

    8 given evidence on occasion on identification issues; is

    9 that correct?

    10 A. Yes, but if I have your permission, I would

    11 like to note, as regards the identification in

    12 Yugoslavia, the very narrow, specific problem is much

    13 less important. It is usually viewed in a broader

    14 sense, in the sense of the whole case, in the context

    15 of the whole case. So it's not a separate item.

    16 Q. The issue that Dr. Wagenaar has reported on

    17 in his report would strike you as being somewhat

    18 unusual in terms of what you would generally do in the

    19 courts of your own country; is that fair?

    20 A. Well, you could say that. Because in

    21 addition to the general part that Dr. Wagenaar

    22 discussed, which we also do, we link it to the specific

    23 case under review, so that could constitute the

    24 difference. This is what I presented in my written

    25 report. I also apply this to the specific case, if

  59. 1 that's what you were asking me.

    2 Q. Thank you. Now, you say that the MMPI test

    3 in Yugoslavia, number 201, I think, is especially

    4 adopted for the former Yugoslavia. Does it have any

    5 international recognition outside of the former

    6 Yugoslavia?

    7 A. Of course. It's the same test that

    8 Mr. Gudjonsson talked about. In its original version,

    9 it has 567 questions; in its abbreviated versions, 201

    10 questions. In our country, we also apply the full

    11 version, but this form, the 201 form, which has been

    12 applied here, is the standardised test, standardised to

    13 the Yugoslav population.

    14 What does that mean? The standardisation of

    15 a test means that it is applied to a large number of

    16 people from various regions using specific statistical

    17 methods. Certain conclusions are made, and then on the

    18 basis of that, the conclusion is reached that this test

    19 is valid, that the result achieved corresponds to the

    20 purpose and the objective for which it has been

    21 applied.

    22 Q. Thank you. Now, before you set out to

    23 comment upon the report of Dr. Wagenaar, did you make

    24 contact with him at all?

    25 A. No, I haven't.

  60. 1 Q. Was there any reason why you didn't contact

    2 him?

    3 A. No, no reason at all.

    4 MR. NIEMANN: No further questions, Your

    5 Honour.

    6 JUDGE CASSESE: Thank you. Mr. Kostic?

    7 Re-examined by Mr. Kostic:

    8 Q. Were you told by anyone that you had to

    9 contact Dr. Wagenaar or that it was necessary or that

    10 it was desirable?

    11 A. No. This is the first time that I hear of

    12 it.

    13 MR. KOSTIC: I have no other questions of

    14 this witness. The only thing I would like to do is to

    15 move the Exhibits D163, D164 and D165 into evidence.

    16 MR. NIEMANN: Our position on that, Your

    17 Honours, is we have no objection, provided the

    18 conditions that were discussed before, namely,

    19 reference to the witnesses, are not regarded as part of

    20 the evidence.

    21 JUDGE CASSESE: Good. So we will disregard

    22 those parts, yes.

    23 MR. KOSTIC: I have absolutely no

    24 disagreement with that, of course.

    25 JUDGE CASSESE: All right. It will be

  61. 1 admitted into evidence.

    2 MR. KOSTIC: Thank you very much, Ms. Najman.

    3 JUDGE CASSESE: I assume there's no objection

    4 to the witness being released. Dr. Najman, thank you

    5 so much for coming here to give evidence. You may now

    6 be released. Thank you.

    7 THE WITNESS: Thank you.

    8 (The witness withdrew)

    9 JUDGE CASSESE: I think we have now reached

    10 the stage where we should come to the closing

    11 statements, and I wonder whether Mr. Niemann is

    12 prepared to make his closing statement on behalf of the

    13 Prosecution?

    14 MR. NIEMANN: Yes, Your Honour. If Your

    15 Honours just excuse me while I just prepare myself.

    16 If Your Honours please. Your Honours, I have

    17 provided you with a copy of our closing address. The

    18 matters pertaining to the legal aspects of the

    19 discussion will be matters that I will address, and

    20 when it comes to a discussion of the facts of the case,

    21 my colleague, Mr. Williamson, will address Your Honours

    22 on those factual issues.

    23 Your Honours, the written submission that I

    24 have provided largely covers many of the points that

    25 I'd wish to make. It wasn't my intention, unless I can

  62. 1 assist Your Honours in any of these matters, to

    2 actually go into that written submission. As with many

    3 legal issues, at times they can be a little tedious to

    4 have read to you, if Your Honours have had the

    5 opportunity to read it. So I'm not going to subject

    6 Your Honours to that.

    7 So there are some peripheral matters which I

    8 would like to address, and there are some central

    9 matters which I will go to which may bear some

    10 repetition or explanation. Your Honours, of course, if

    11 there are any matters that I can assist you with

    12 arising out of the submissions that I have made,

    13 particularly in relation to the legal questions, then I

    14 sincerely hope that I can assist Your Honours with

    15 those matters.

    16 Your Honours, the Prosecution and the Defence

    17 have now reached the conclusion of their part of the

    18 case, and it now turns to you to examine the facts and

    19 the law to be applied. Your Honours' role is not an

    20 easy one because not only must you deal with complex

    21 legal issues, but you must perform one of the more

    22 difficult tasks that have to be performed in a criminal

    23 trial, and that is to decide the issues of fact.

    24 In those jurisdictions where there is a jury

    25 of 12 ordinary citizens to deal with the questions of

  63. 1 fact, the Trial Judge is somewhat relieved of that

    2 burden. But one of the aspects of a trial before a

    3 jury is that the Trial Judge invariably instructs the

    4 jury to apply their common sense when it comes to a

    5 decision on the facts and on a determination of the

    6 guilt or innocence of an accused person. Your Honours,

    7 the issue of determining guilt or innocence, according

    8 to common sense, in our submission, should be no

    9 different whether the tribunal, in fact, be an ordinary

    10 tribunal of citizens or a tribunal of trained lawyers.

    11 It's common, Your Honours, in a jury trial

    12 for Prosecutors to explain to the jury the roles played

    13 by the various parts of the court. This is because one

    14 can expect that ordinary laymen may not understand all

    15 of the different roles that are played. But I'm not

    16 sure that it's inappropriate for us in this Tribunal to

    17 also look at the various roles played by the parties

    18 and, on occasion, to remind ourselves of the various

    19 functions that need to be formed.

    20 It's interesting that in a trial with a jury,

    21 for example, Prosecutors are at pains to emphasise that

    22 the Trial Judge is the final arbiter of the law. And

    23 while it is for the jury to decide issues of fact, it

    24 is for the Judge to decide questions of law.

    25 Prosecutors often say to juries that if the jury hears

  64. 1 two versions of the law, one from the Prosecution and

    2 one from the Judge, that they must and they are bound

    3 to accept the view of the law that is put to them by

    4 the Trial Judge.

    5 Why do I say this and why do I refer to

    6 this? Because, Your Honours, it is important to

    7 emphasise the reasons behind this, the reasons being

    8 that it's important that in a proceedings where juries

    9 are present to emphasise that the Prosecution plays a

    10 role in the case which is slightly different to that of

    11 the Defence and which is in support of the system of

    12 justice itself, such that when it comes to any issue of

    13 dispute that may be seen to confuse a jury on questions

    14 of law, the Prosecution make it clear that there is to

    15 be no dispute, that the Trial Judge is the Judge that

    16 determines that issue. And so the jury is not left to

    17 trouble themselves with these matters. They are

    18 there. And so to that extent, the Judge and the

    19 Prosecution stand together, and the Prosecution is in

    20 support of the court and the system of justice itself.

    21 Your Honours, if I may refer to what I think

    22 has probably become a classic definition of the role of

    23 the Prosecution as was formulated by a committee in the

    24 United Kingdom known as the Farquharson Committee in

    25 1986. Your Honours, I pause to refer to this because I

  65. 1 think it is useful that, in discussing the various

    2 roles to be played, the role of the Prosecution be

    3 clearly emphasised and stated. I do and I quote from

    4 that report.

    5 In the Farquharson report in its introductory

    6 paragraphs, it is stated that: "There is no doubt that

    7 the obligations on Prosecution counsel are different

    8 from those of counsel instructed for the Defence in a

    9 criminal case or of counsel instructed in civil

    10 matters. His or her duties are wider both to the court

    11 and to the public at large. Furthermore, having regard

    12 to his duty to present the case for the Prosecution

    13 fairly to the jury, he has a greater independence of

    14 those instructing him than that enjoyed by other

    15 counsel. It is well known to every practitioner that

    16 counsel for the Prosecution must conduct his case

    17 moderately, albeit firmly.

    18 He must not strive unfairly to obtain a

    19 conviction. He must not press his case beyond the

    20 limits which the evidence permits. He must not invite

    21 the jury to convict on evidence which, in his own

    22 judgement, no longer sustains the charges laid in the

    23 indictment.

    24 If the evidence of a witness is undermined or

    25 severely blemished in the course of cross-examination,

  66. 1 Prosecution counsel must not present him to the jury as

    2 worthy of credibility he no longer enjoys. Great

    3 responsibility is placed upon Prosecution counsel, and

    4 although his description as a minister of justice may

    5 sound pompous to modern ears but accurately describes

    6 the way in which he should discharge his function."

    7 Your Honours, I don't think it makes any

    8 difference whether that be a statement addressed to the

    9 role of prosecuting counsel in a domestic jurisdiction

    10 of a member state of the United Nations as to what the

    11 role of prosecuting counsel before this court is. And

    12 those duties, in my respectful submission, are the

    13 duties encumbent upon all prosecutors.

    14 Your Honours, in this jurisdiction, there is

    15 a broad cross-section of national backgrounds of

    16 counsel that appear before the Tribunal. This applies

    17 both to the Prosecution and to the Defence. Matters

    18 which, in some jurisdiction, are considered taboo or

    19 contrary to ethics or etiquette of the bar might, in

    20 other jurisdictions, be completely or totally

    21 acceptable. This may range from any number of issues,

    22 including the dealing with witnesses or the

    23 presentation of evidence in the court. There are very

    24 many differences. Sometimes these differences may

    25 appear to offend because they are contrary to some

  67. 1 etiquette or practice which one is accustomed to in

    2 their own national jurisdiction.

    3 There is one matter, Your Honour, which I

    4 think is common to all prosecutors who are generally

    5 pursuing their work. And that is that under no

    6 circumstances should ever a conviction be put before

    7 justice.

    8 And so it is with the case of the accused,

    9 Mr. Dokmanovic, Your Honours. If Your Honours are

    10 satisfied that the Prosecution has not proved its case

    11 beyond a reasonable doubt, it is, as it is the duty of

    12 any Tribunal, in fact, your duty to acquit. But

    13 equally if you are satisfied that it has been so

    14 proved, it is your duty to convict.

    15 Your Honours, I now wish to touch upon a

    16 number of other issues that arise in my submission on

    17 matters of the law. And the first I would like to

    18 touch upon is the grave breach provisions of the Geneva

    19 Conventions. And, Your Honours, in our case, in our

    20 submission, in the case that's now before you for

    21 determination, it is our submission that there is no

    22 question whatsoever on the facts that the Prosecution

    23 has proved beyond all reasonable doubt that at the

    24 relevant time and place, an armed conflict existed

    25 between two independent and sovereign states, thus

  68. 1 rendering it international in character.

    2 Your Honours, my colleague, Mr. Williamson,

    3 may elaborate on those facts which we say prove this

    4 matter beyond a reasonable doubt.

    5 But the question is, Your Honours, is it

    6 necessary for the Prosecution to prove it beyond a

    7 reasonable doubt or to prove it at all? Your Honours

    8 may be aware that this has been the subject of some

    9 discussion in academic circles in other places. And

    10 there is no question that the application of the grave

    11 breach provisions to this Tribunal and the practical

    12 application of them in the setting of a criminal court

    13 is something which is in its very early days, its very

    14 infancy. And I don't think anyone can say that there

    15 is any finally settled point of view which prevails

    16 over all others in this area.

    17 It's our respectful submission that it is

    18 appropriate to look at this question. It is

    19 appropriate to look at it, particularly in a case where

    20 the evidence clearly proves the issue beyond a

    21 reasonable doubt, so that there can be no question of

    22 injustice to any accused persons.

    23 Your Honours, with respect to the issue of

    24 whether or not it can be said that the matter needs to

    25 be proved beyond reasonable doubt, that an

  69. 1 international armed conflict existed, I am unable to

    2 assist Your Honours with any law at all where this has

    3 been examined and determined that it must be so

    4 proved.

    5 If it is not to be so proved beyond a

    6 reasonable doubt, the question is: Does it become in

    7 the nature of a jurisdictional question? If that be

    8 so, then is it essential that it be proved beyond a

    9 reasonable doubt? There is argument, Your Honours,

    10 that when it is merely a jurisdictional question, if

    11 it's a jurisdictional issue that needs to be proved by

    12 the Prosecution, then it may, perhaps in those

    13 circumstances, in those limited circumstances, merely

    14 have to be proved on the balance of probabilities.

    15 That is one possibility.

    16 The other possibility that I postulate, Your

    17 Honours, for Your Honours' consideration is the fact

    18 that, is it necessary for the Prosecution to prove the

    19 question of the international character of the conflict

    20 beyond a reasonable doubt at all?

    21 Your Honours, international setting, and as a

    22 general rule, courts do not accept jurisdiction over

    23 offences committed outside their national boundaries.

    24 True it is that the legislature of many national courts

    25 can invest a court with extra territorial

  70. 1 jurisdiction. But unless such jurisdiction is clearly

    2 expressed in the legislation, it is not common for

    3 courts to accept such extra territorial jurisdiction.

    4 The reason for this, Your Honours, is to be

    5 found in the committee of nations, namely, that courts

    6 do not wish to offend foreign courts by usurping their

    7 authority over what has happened in their country. It

    8 is because of this very reluctance, in our submission,

    9 that when the drafters of the 1949 Conventions wished

    10 to introduce the concept of universal jurisdiction,

    11 they had to devise a mechanism which was to be included

    12 in the conventions to overcome the automatic

    13 application by national courts of what is sometimes

    14 referred to as terminatory jurisdiction.

    15 The concept of grave breaches was born in

    16 1949 in those conventions, and thus the 1949 Geneva

    17 Convention systems for repression of grave breaches is

    18 not based on International Tribunals, but rather on

    19 national enforcement and adjudication before national

    20 courts.

    21 Hence, when an International Tribunal looks

    22 for the basis to try grave breaches, it's not, in my

    23 respectful submission, to Common Article 2 of the

    24 Geneva Conventions that it must look, but it must look

    25 to its own statutory base, which, in the case of this

  71. 1 Tribunal, is Article 2 of the Statute of the Tribunal.

    2 Article 2 of the Statute of the Tribunal makes no

    3 reference to Common Article 2 of the Geneva

    4 Conventions, nor would it, in my submission, because

    5 that Article is expressly designed to overcome the

    6 reticence of national courts to try offences that occur

    7 on the territory of another state.

    8 It is only when the special preconditions of

    9 Common Article 2 have been met can a national court

    10 then venture into the area of universal jurisdiction.

    11 Indeed, such is the reluctance of such national courts

    12 to apply universal jurisdiction, notwithstanding the

    13 existence of Common Article 2, but in those countries,

    14 special legislation is introduced through their

    15 government and parliament to permit the courts to

    16 expressly apply universal jurisdiction in those

    17 circumstances where the principles of Common Article 2

    18 would be satisfied.

    19 Your Honours, nor does Article 2 of the

    20 Statute of the Tribunal refer to international armed

    21 conflict or the sovereignty of independent and

    22 internationally recognised states. The reason why, in

    23 my submission, that an International Tribunal such as

    24 this need not concern itself with the issues such as

    25 jurisdictional elements is because it is a product of

  72. 1 the community of nations, it is not concerned itself

    2 with the committee of nations. Thus, when the

    3 community of nations create a body such as the

    4 Tribunal, it is to be inferred that no further

    5 jurisdictional prerequisites, such as Common Article 2,

    6 need to be complied with before such jurisdiction is

    7 exercised.

    8 That is not to say, Your Honours, that the

    9 internationality of the conflict is irrelevant. Your

    10 Honours, until the time is reached when it can be

    11 asserted with confidence that customary international

    12 law has changed the scope of the grave breach

    13 provisions to the point that the classification of the

    14 conflict is no longer a relevant issue, one must assume

    15 that the classification of the conflict for both states

    16 and international tribunals is a matter of

    17 significance.

    18 However, Your Honours, it may be that the

    19 significance of the international nature of the

    20 conflict is a matter which may concern the Defence in

    21 raising a challenge to the jurisdiction based on the

    22 lack of internationality. In other words, when

    23 confronted with an indictment which charges grave

    24 breach provisions, the approach may be for the Tribunal

    25 to embark upon the hearing on the assumption that it

  73. 1 has jurisdiction, rightly and properly conferred, by

    2 virtue of Article 2 of its own Statute.

    3 There is a mechanism provided not only in the

    4 Rules but, it must be assumed, by the Statute itself,

    5 for the Defence to raise an issue of jurisdiction at

    6 the outset of the proceedings claiming the lack of

    7 internationality and thereby arguing that the grave

    8 breach provisions do not appropriately form part of the

    9 charges in this case because of the absence of

    10 internationality of the conflict. That then is a

    11 matter which is disposed of at the initial stages of

    12 the proceedings and is to determined, because it is

    13 raised by the Defence, on the balance of

    14 probabilities.

    15 It may be that, Your Honours, is the

    16 appropriate approach to take in such matters. If that

    17 were so, then one could imagine that the extensive

    18 evidence called in support of proof of internationality

    19 of the conflict and of the sovereignty of states to the

    20 conflict would then become unnecessary in the order of

    21 course of events.

    22 It is not customary in prosecutions for the

    23 Prosecution to commence its case at the outset by

    24 establishing in evidence that the court has

    25 jurisdiction. The usual approach is for the court to

  74. 1 assume jurisdiction and to proceed to deal with the

    2 matter. But as I have said, the Defence can always

    3 challenge that.

    4 That, Your Honours, would be a considerable

    5 departure from the approach adopted in previous cases,

    6 but it may, in fact, be the correct approach to apply.

    7 Your Honours, I raise this against a backdrop

    8 of the fact that, in our respectful submission, the

    9 evidence clearly demonstrates beyond a reasonable doubt

    10 that an international armed conflict occurred in

    11 Vukovar on November the 20th, 1991, between the then

    12 internationally recognised Sovereign State of Croatia

    13 and the Sovereign State of Serbia, and that the

    14 conflict between the two states was engaged in by

    15 forces of the alternative and opposite sides. I make

    16 this submission against that background.

    17 Your Honours, the only other matter that I

    18 wish to touch upon, unless there are issues which I can

    19 assist you with on questions of law, was the issue of

    20 sentencing.

    21 I mentioned earlier in my closing address the

    22 question of different perceptions and different

    23 approaches taken in some national jurisdictions to

    24 various issues, and there can be a difference too with

    25 respect to the question of sentencing.

  75. 1 In some jurisdictions, the Prosecution makes

    2 no comment on sentence. It is a matter entirely for

    3 the court. The Prosecution, once it has closed its

    4 case and once the evidence is all in for determination,

    5 the Prosecution rests and makes no further submission

    6 on this issue because that is a matter for the

    7 exclusive domain of the court.

    8 In jurisdictions where that was traditionally

    9 accepted as being the state of the law, in more recent

    10 times, in some of those jurisdictions, there has been a

    11 shift. The primary basis for the shift has been

    12 because, in those jurisdictions almost invariably, an

    13 appeal against a sentence imposed by a court, trial

    14 court, has been permitted by the legislature. Appeal

    15 courts reason that it hardly behoves the Prosecution

    16 to complain about the manifestly inadequate sentence of

    17 an accused person on appeal if it sat mute during the

    18 whole process of sentencing and not expressed its view

    19 whatsoever.

    20 Your Honours, this Tribunal is in a situation

    21 where there exists an appeal against sentence, so one

    22 assumes that the Prosecution is to take the more

    23 perhaps modern approach having regard to that appeal

    24 capacity, but that the Prosecution is further

    25 reinforced in commenting on sentence having regard to

  76. 1 the wording of Rule 100 of the Rules of Practice and

    2 Procedure of this Tribunal which expressly provide for

    3 comment upon sentence to be made by the parties,

    4 including the Prosecution, in appropriate

    5 circumstances.

    6 Your Honours, I trust that my written

    7 submissions will be of some assistance to you, and I

    8 don't wish to take any further time now. I defer to my

    9 colleague, Mr. Williamson.

    10 JUDGE CASSESE: Thank you, Mr. Niemann.

    11 Mr. Williamson?

    12 MR. WILLIAMSON: Since January of this year,

    13 Your Honours have heard a substantial number of

    14 witnesses. You have had the conflict in Vukovar

    15 brought to life in this courtroom. You have heard it

    16 through the voices of those unfortunate people who had

    17 to live through the battle and you have seen it through

    18 their eyes.

    19 But as much as those people suffered, this

    20 trial has been about the 200 or more persons who

    21 suffered even more and who were, in the end, brutally

    22 murdered simply because they were not Serbs.

    23 This case has not been a debate about how the

    24 war started or who started it. Those are questions for

    25 historians and, fortunately, we are not called upon to

  77. 1 decide those issues. It is fair to say that many

    2 mistakes were made by both sides to the conflict, and

    3 that there are no shortage of people who share in the

    4 responsibility for what ultimately happened.

    5 No one will argue that in 1991, the Serbs in

    6 Croatia did not have some legitimate grievances. A

    7 nationalistic government had come to power, and Serbs

    8 saw many of the privileges that they had enjoyed in

    9 Yugoslavia slipping away. Rather than pursue dialogue,

    10 they chose armed conflict.

    11 As soon as the first feeble attempts at

    12 negotiation broke down, it was all too easy for the

    13 Serbs to embrace the government of Slobodan Milosevic

    14 which was just as nationalistic, if not more so, than

    15 the government in Zagreb. Milosevic was holding out

    16 the promise of Greater Serbia, and to Croatian Serbs,

    17 this was much more attractive than any arrangement with

    18 the Croats, no matter how much autonomy they would be

    19 given. So if the Croats wouldn't accede to all of

    20 their demands, then the Serbs would beat them into

    21 submission and force them to do so.

    22 The Croats made mistakes, as Stipe Mesic told

    23 you. They didn't try hard enough to reach a middle

    24 ground with the Serbs, but ultimately, that didn't

    25 cause this war. It only served as a pretext, an

  78. 1 excuse, whereby those men in Belgrade and Knin and

    2 Vukovar could use military force to pursue their dream

    3 of Greater Serbia.

    4 The Serbs did not wish to reach accommodation

    5 with the Croats in 1991, for they knew that they had

    6 superior force. Why should they compromise on anything

    7 when they could force their will and get everything?

    8 They chose war not because they had to, they chose war

    9 because they were sure they would win. The people of

    10 Vukovar were among the first to pay the price for that

    11 choice, and the price they paid was more than anyone

    12 could have imagined.

    13 Croatia and Slovenia both declared

    14 independence on June 25th, 1991. The JNA quickly moved

    15 against Slovenia, but within ten days, the fighting was

    16 over, and the JNA announced its intention to quit

    17 Slovenia.

    18 At that time, the EC troika was heavily

    19 involved in a diplomatic initiative to resolve the

    20 problems surrounding the break-up of Yugoslavia. They

    21 realised already at that point that Yugoslavia was

    22 finished, but they wished to find a framework under

    23 which the dissolution could take place peacefully. One

    24 of the components of this strategy was to delay

    25 implementation of Croatia and Slovenia's declarations

  79. 1 of independence. Thus, agreement was reached that a

    2 moratorium would be placed on the implementation of

    3 independence for 100 days or until October 8th.

    4 MR. FILA: Sorry. I am not receiving the

    5 Serbian interpretation, nor is the accused. I

    6 apologise, Mr. Williamson, for interrupting you, but

    7 you're not being interpreted into Serbian. That's the

    8 reason why I interrupted. Continue, please.

    9 MR. WILLIAMSON: If I have been going too

    10 fast, I apologise, if that is the problem, but if it's

    11 a technical problem, perhaps it's been corrected.

    12 As you heard Stipe Mesic testify, the

    13 EC countries realised that Croatia's and Slovenia's

    14 independence was a fact. It was only a question of

    15 trying to fit implementation of that into the framework

    16 of an overall solution for Yugoslavia. Thus, the delay

    17 in implementation was requested for political reasons,

    18 not because legal impediments were recognised.

    19 What took place in the 100 days that this

    20 moratorium was in effect? Croatia took the steps which

    21 allowed it to implement its full independence on the

    22 8th of October, 1991. During these 100 days, the

    23 National Guard was transformed into the Croatian army.

    24 Croatia gave a structure to its government, and the

    25 government started functioning in a manner totally

  80. 1 independent from the old federal Yugoslav organs in

    2 Belgrade. Croatia established border posts all along

    3 its frontiers with Slovenia and Hungary and at its

    4 coastal ports.

    5 The fact is, Yugoslavia, as a viable entity,

    6 had ceased to exist long before 8 October, 1991.

    7 Perhaps the clearest indication of this was the

    8 diminishing role of the federal presidency in

    9 international affairs.

    10 By autumn, the International Community was

    11 dealing with Slobodan Milosevic and Franjo Tudjman and

    12 the other republic presidents. They now held the

    13 power. The members of the federal presidency were

    14 relegated to the sidelines, and by the time of the last

    15 Hague conference, they were not even in attendance.

    16 A lot of things factored into the destruction

    17 of Yugoslavia: Slobodan Milosevic's desire to dominate

    18 all of Yugoslavia and the steps that he took to achieve

    19 that; dissatisfaction in Croatia and Slovenia with the

    20 financial set-up of Yugoslavia; the desire in those

    21 republics for real autonomy. All of these things

    22 contributed to the break-up, and it is hard to say what

    23 caused what. But I believe the evidence supports the

    24 notion that Slobodan Milosevic and Serbia had an

    25 important role in the demise of Yugoslavia. Certainly

  81. 1 a role greater than any German Vatican conspiracy.

    2 This is due to the fact that the Yugoslavia

    3 that Slobodan Milosevic wanted, the Yugoslavia that

    4 Slavko Dokmanovic wanted, was, in fact, Greater

    5 Serbia. It wasn't a Yugoslavia built on the old

    6 foundations of brotherhood and unity, it was a

    7 Yugoslavia built on Serb dominance and it was a

    8 Yugoslavia that no one else could stomach. But the

    9 Serbian leadership was determined to achieve this kind

    10 of Yugoslavia, this Greater Serbia, and the JNA was the

    11 tool by which they would do it.

    12 If you seek to know the true role of the JNA,

    13 then look at the events of July 1991. After ten days

    14 of fighting, the JNA stopped fighting in Slovenia. JNA

    15 barracks were surrounded there. There was absolutely

    16 nothing different about Slovenia's secession than

    17 Croatia's. Slovenia was every bit as much a part of

    18 the Socialist Federal Republic of Yugoslavia as was

    19 Croatia. Its departure affected the integrity of

    20 Yugoslavia just as much as the departure of Croatia.

    21 If the JNA was really fighting to maintain

    22 Yugoslavia, then why withdraw from Slovenia and let it

    23 goes its own way?

    24 The JNA's motives were made clear the minute

    25 they started pulling out of Slovenia. It is a point

  82. 1 they cannot reconcile, because from that juncture on,

    2 it is impossible for them to say that this was a fight

    3 to maintain Yugoslavia. It had become a fight for

    4 Serbia and the Serbs.

    5 As the summer of 1991 progressed, the

    6 transformation of the JNA continued as the army became

    7 more and more Serbian. An officer core that was

    8 already heavily dominated by Serbs and Montenegrins was

    9 now coupled with a force of soldiers who were primarily

    10 Serb and Montenegrin. The old ideas of an army that

    11 mirrored the population of all of Yugoslavia were

    12 gone. The Slovenes had left, the Croats had left;

    13 Bosnians and Macedonians were not reporting for duty.

    14 There were huge shortages in manpower, and these were

    15 filled only by mobilising Serb Territorial Defence

    16 units and enlisting the help of Serb paramilitary

    17 groups like Arkan's and Seselj's. Every time a

    18 non-Serb left, a Serb replaced them. The JNA had

    19 become the army of Serbia, and the power behind the

    20 army had shifted away from the federal Yugoslav bodies

    21 to the Serbian president, Slobodan Milosevic.

    22 The ultimatum of 1 October, 1991, from the

    23 general staff of the JNA to the president of Croatia,

    24 the government of Croatia, and the general staff of the

    25 Croatian army, makes clear who was at war. On one

  83. 1 side, there is Croatia and its army; and on the other

    2 side, there is the JNA fighting alongside its Serb

    3 allies. The war had become a fight between Serbia and

    4 Croatia.

    5 As this was happening, the Croatian community

    6 in Eastern Slavonia became more and more isolated. The

    7 JNA's role changed there. It was no longer the

    8 intermediaries separating the combatants. It had

    9 clearly decided to join the side of one of the

    10 combatants, the Serbs, and in doing so it became the

    11 device for creating Greater Serbia.

    12 First, the JNA sought to "liberate" the

    13 Croatian villages in the Vukovar municipality.

    14 Interestingly enough, what the JNA termed as

    15 "liberation" translated into death, destruction, and

    16 expulsion for the Croats.

    17 The actions of the JNA were

    18 well-orchestrated. They were done with a single

    19 purpose in mind, and that was to force the Croats from

    20 the homes they had lived in for centuries and to secure

    21 those territories for Serbia.

    22 The local Serbian leadership are already

    23 decided that this area was part of Serbia. Its

    24 pronouncements and its rulings are clear evidence of

    25 this effect. The Serbs had effectively cut themselves

  84. 1 out of Croatia and made the region a part of Serbia.

    2 All that remained to be done was to defeat the Croats

    3 in the region and to get them out of the way.

    4 No one can argue that the JNA and their local

    5 Serb allies were anything but effective in this

    6 endeavour. The Croat villages of Sotin, Sarengrad,

    7 Lovas, Bapska and Tovarnik were attacked. Their

    8 citizens were killed or tortured or terrorised into

    9 leaving their homes. One by one, as these villages

    10 emptied, their residents came to the only place they

    11 could go, Ilok, and in the first large scale ethnic

    12 cleansing of the war, the JNA surrounded that helpless,

    13 isolated town, and began stepping up the threats.

    14 Their kind neighbours in Backa Palanka,

    15 across the river in Serbia, did their part by cutting

    16 off the electricity and the yeast supplies to Ilok.

    17 When it became obvious to the people there

    18 that they had either to suffer the same fate as the

    19 other Croatian villages or to go, the JNA gladly

    20 provided buses to take them away. If you doubt for one

    21 second the intent of the JNA in all of this, read again

    22 the ultimatum to the people of Bapska, where they were

    23 told if they did not comply with the army's demands,

    24 "their village will cease to exist on a geographical

    25 map."

  85. 1 Listen again to the words of General Andrija

    2 Biorcevic, the JNA's operational commander for the

    3 Vukovar military theatre. When talking of his Serb

    4 paramilitary allies, he says, "We surround a village,

    5 they enter it, kill those who refuse to surrender, and

    6 we go on."

    7 This was no longer the army of Yugoslavia.

    8 The JNA and their Serb paramilitary allies

    9 were engaged in a widespread and systematic attack

    10 against the civilian population. It is evidenced by

    11 those who survived it, by the 21 men marched to their

    12 death in a mine field in Lovas, by the occupation of

    13 Baranja, by the 1300 bodies pulled out of the mass

    14 grave in Vukovar, and by the overall JNA commander in

    15 the region who boasts about it.

    16 After Ilok, the sole outpost for Croats in

    17 Eastern Slavonia was Vukovar. It stood alone, ringed

    18 by hundreds of artillery pieces, tanks, gun boats on

    19 the Danube, and some 30.000 troops. Inside the siege

    20 line, about 10.000 civilians and a little less than

    21 2.000 defenders held out. They lived in cellars for

    22 three months while thousands upon thousands of shells

    23 were lobbed onto their dying city, but they continued

    24 to hold out.

    25 You have heard what the people of Vukovar

  86. 1 went through as the noose tightened around their city.

    2 By mid November, the battle was clearly lost. They

    3 could only await their so-called "liberation." Knowing

    4 what would come, they sought any way they could find to

    5 safeguard themselves against the murder which would

    6 follow.

    7 The world too had already seen enough of the

    8 new JNA to realise that this once proud and dignified

    9 fighting force had been reduced to something entirely

    10 different. But despite everything the JNA had already

    11 done, the world community still thought that the army

    12 would abide by its own agreements, that the commitments

    13 of its generals meant something.

    14 It was still early enough, though, that

    15 people were shocked when the images of Major

    16 Sljivancanin were broadcast around the world as he

    17 blocked the ICRC and the ECMM from reaching Vukovar

    18 hospital.

    19 There can be no doubt as to what happened to

    20 the men taken from Vukovar hospital on the morning of

    21 the 20th of November, 1991. The few survivors attest

    22 to it, the grieving families left behind attest to it,

    23 but most of all, the 200 bodies pulled out of the

    24 ground at Ovcara attest to it.

    25 Why were these 198 men and two women killed

  87. 1 at Ovcara? Ultimately, they were killed for one reason

    2 and one reason alone: That being the fact that they

    3 were not Serbs. There was no longer room for anyone

    4 other than Serbs in Vukovar except perhaps for a few

    5 elderly Croats or those that were married to Serbs.

    6 Slavko Dokmanovic certainly makes it clear in

    7 the two interviews we have heard from that period when

    8 he says "Vukovar is a Serbian city." The decision to

    9 make Vukovar a Serbian city was accomplished at its

    10 most horrific with the killings at Ovcara.

    11 The Serb authorities in Vukovar and the

    12 Republic of Serb Krajina did not want the world to see

    13 what they had done. They did not want the world to see

    14 the criminal foundations upon which they had built

    15 their state. They did not want the world to see that

    16 they had turned Sinisa Veber from a strong young

    17 athlete into a rotting corpse. They did not want the

    18 world to see that they had turned 16-year-old Igor

    19 Kacic from a scared kid holding onto a stuffed mouse

    20 into a rotting corpse. But they had.

    21 They had turned at least 200 living,

    22 breathing persons with families, with friends, they had

    23 turned them into a jumble of dead bodies decomposing in

    24 an isolated grave. Of course they did not want the

    25 world to see what they had done.

  88. 1 There can be no dispute as to what ultimately

    2 happened to the victims, and there is little dispute as

    3 to the circumstances under which it occurred. The

    4 dispute here lies in terms of who was responsible for

    5 these cowardly crimes. We have seen the role of the

    6 JNA in what happened, but Sljivancanin, Mrksic, and

    7 Radic, are not on trial here today. They hide in

    8 Serbia. We have seen the role of paramilitary

    9 commanders like Miroljub Vujovic and Stanko Vujanovic,

    10 but they are also not on trial here today.

    11 What of the men who is on trial here now?

    12 What of Slavko Dokmanovic?

    13 Your Honour, might I ask what the schedule is

    14 anticipated being? Because I saw the note, I assume

    15 there is a request for a break.

    16 JUDGE CASSESE: I didn't want to interrupt

    17 you because I thought it was not very polite on my

    18 side, but actually, because of the interpreters, we

    19 should take a break. How much time do you need?

    20 MR. WILLIAMSON: I think I'm about a third of

    21 the way through it, so I would assume probably another

    22 30 to 45 minutes at the most. But this is a good

    23 breaking point, if you would like to recess here.

    24 JUDGE CASSESE: Yes, and Mr. Fila, how much

    25 time do you think you need for your closing statement

  89. 1 so that we can do some planning?

    2 MR. FILA: If I will speak only about the

    3 case, I won't need too much time. But if I will have

    4 to deal with the other situations, like what Milosevic

    5 is like, what Tudjman is like, what the JNA did, I'll

    6 need a lot more time. So should I try talking about

    7 what the US are like, why they did not extradite

    8 their citizens, et cetera? Let us stick to the case.

    9 This way you bring me into an embarrassing situation to

    10 discuss Milosevic and Tudjman, and believe me, I am not

    11 interested in either one of them at all.

    12 JUDGE CASSESE: The court too --

    13 MR. FILA: Your Honour, you have the judgement

    14 of the court in the United States of America, and they

    15 did not extradite a person to the Netherlands. That is

    16 a final judgement. And I have it too. Am I supposed to

    17 talk about the United States of America, what kind of a

    18 country that is, what Mr. Williamson's president is

    19 like, and what kind of a country it is because they did

    20 not extradite this citizen? That is my response.

    21 JUDGE CASSESE: Of course not. We should

    22 confine ourselves to the case and to the facts that are

    23 relevant to our case, so I'm sure that you will not

    24 deal with all these other matters, Milosevic, these are

    25 of no importance whatsoever. These are absolutely

  90. 1 immaterial to what we are discussing here. And I'm

    2 sure that Mr. Williamson as well will try to confine

    3 himself to the facts of the case.

    4 Actually, you had already started dealing

    5 only with Dokmanovic, and we are interested only in

    6 whether or not the charges against the accused are

    7 well-founded.

    8 MR. WILLIAMSON: Your Honour, if I might just

    9 say this, though? We are certainly not trying to

    10 wander off into matters that are irrelevant to the

    11 court and this is not meant as any kind of insult to

    12 Serbia or to Mr. Fila, but the fact is, we have to deal

    13 with issues of international armed conflict, the nature

    14 of the conflict, whether there was a widespread and

    15 systematic attack against the civilian population.

    16 Those are absolutely relevant issues to this trial.

    17 And to that extent, I have tried to point out facts

    18 that we felt establish that, and we are prepared to

    19 move on beyond that, but I take exception to Mr. Fila's

    20 comment that we have been just doing this in some

    21 effort to dirty Serbia or to downgrade him in any way.

    22 JUDGE CASSESE: Of course not. But let me

    23 insist on one point. The court will not pay any

    24 attention to the general historical facts. We are only

    25 dealing with a case, and of course we will not dwell on

  91. 1 the historical background which is not of special

    2 relevance to the legal and factual problems which we

    3 are discussing --

    4 MR. FILA: Your Honour, when you looked at my

    5 written statement, did you find a word about Franjo

    6 Tudjman or about Croatia? I didn't say a word about

    7 that. Only about what is at stake.

    8 JUDGE CASSESE: Mr. Fila, I wonder whether

    9 you need a lot -- much time? Could you approximately

    10 tell us how much time you need for your closing

    11 statement?

    12 MR. FILA: Certainly less than one hour.

    13 JUDGE CASSESE: Yes. All right. Because of

    14 the previous commitments of some Judges, we will now

    15 adjourn for 20 minutes, and we can go on until quarter

    16 to or ten to one, then we will have to reconvene at

    17 2.30, if this is agreeable to you, Mr. Fila, so I

    18 imagine, Mr. Fila, you will make your closing statement

    19 at 2.30. All right? Good. Thank you. So we adjourn

    20 now for 20 minutes.

    21 --- Recess taken at 11.57 p.m.

    22 --- On resuming at 12.20 p.m.

    23 JUDGE CASSESE: Mr. Williamson?

    24 MR. WILLIAMSON: Your Honours, let's look at

    25 the transformation of Slavko Dokmanovic. He was an

  92. 1 individual who, by many accounts, was regarded as a

    2 decent man before the war. He had a family that loved

    3 him and he had a number of friends. He took great

    4 pride in the fact that many Croats had voted for him in

    5 1990, and without them, he wouldn't have been elected.

    6 That is what makes his later actions all the more

    7 sinister.

    8 His friends all say that he was a moderate, a

    9 peacemaker. But how moderate was Slavko Dokmanovic?

    10 If he was such a moderate, such a man of peace and

    11 reconciliation, why is he not seen that way by the

    12 Croats? It seems that if he was really reaching out to

    13 them and offering a message of tolerance and

    14 reconciliation, that they, of all people, would know

    15 it. Has there been a single witness, though, who

    16 wasn't a Serb to say that he was a moderate? No.

    17 Non-Serbs and the members of the international

    18 community all saw him as an extremist. Was this all a

    19 big misunderstanding, or did Slavko Dokmanovic, when

    20 times were different, say things and do things which

    21 led people to believe that he was an extremist, a

    22 radical Serb who hated Croats and who pursued the goal

    23 of Greater Serbia?

    24 There were plenty of people on both sides of

    25 Vukovar who held extremist views, but relatively few of

  93. 1 them were in positions where these views had a real

    2 affect on other people. Slavko Dokmanovic was among

    3 those relative few because no one can doubt his

    4 political prominence. He was the president of the

    5 municipal assembly from 1990 onwards.

    6 We have seen the legislation of the Serbian

    7 district of Slavonia, Baranja and Western Srem. We

    8 have seen the pronouncements of the Serbian National

    9 Council. They have written that Croatian law does not

    10 apply and that the Croatian government has no

    11 authority. These people were in armed revolt against

    12 Croatian authority. They did not recognise anything

    13 that the Croatian government was telling them to do,

    14 yet the decision of the Croatian government removing

    15 Dokmanovic from office is held up as proof that he was

    16 no longer in power.

    17 Admittedly, in the ever diminishing areas

    18 under Croatian control, Slavko Dokmanovic wasn't the

    19 mayor. But among the Serbs who were trying to rest

    20 those arrests from Croat control, he was still the

    21 rightful mayor. Because Queen Wilhelmina was forced

    22 into exile during the German occupation of World War

    23 II, it didn't change the views of the Dutch that she

    24 was their rightful queen. To the Serbs of Vukovar

    25 municipality, Croatian control of the city of Vukovar

  94. 1 was also viewed as an illegal occupation, thus the need

    2 to liberate it.

    3 We can only speculate on what power Slavko

    4 Dokmanovic exercised among Serbs as their rightful

    5 mayor during this period for we really don't know.

    6 There was a state of war developing, so things weren't

    7 functioning in the same way as they would have in peace

    8 time. The legislation regulations which govern the

    9 functioning of municipal government in Vukovar,

    10 however, made provision for the mayor to continue

    11 exercising power during wartime or state of emergency.

    12 To what extent this was done, we can't say. Yet we can

    13 say from the evidence that Slavko Dokmanovic still

    14 carried on with his political role the best that he

    15 could.

    16 In August 1991, when the government of the

    17 Serbian district of Slavonia, Baranja, and Western Srem

    18 was formed, Slavko Dokmanovic became a minister, again,

    19 a term he refused to use when asked point-blank by

    20 Mr. Milner in his interview if that was his job, again,

    21 a term that all his counterparts used to describe

    22 themselves, and a term which is set out in the

    23 legislation of the Serbian district. Within this

    24 government, Slavko Dokmanovic had the portfolio for

    25 agriculture, and great efforts have been made to

  95. 1 portray him as the simple agronomist.

    2 This government, though, was the executive

    3 authority for the whole region under Serbian control.

    4 It had links with the local Serb forces, the

    5 Territorial Defence, and the paramilitaries, which they

    6 now seek to downplay. This government, which allegedly

    7 has no military roles, is full of ministers and a prime

    8 minister who wear military uniforms. It is receiving

    9 reports from military commanders. It is resolving

    10 problems between the Territorial Defence and the JNA.

    11 It is providing supplies to the military. It is

    12 issuing pronouncements on the relationship between

    13 itself and the army.

    14 THE INTERPRETER: Excuse me. Could

    15 Mr. Williamson slow down a little bit?

    16 MR. WILLIAMSON: It has, according to Milan

    17 Knezevic, an agreement with the JNA that members of the

    18 government will not be in the army. What greater

    19 recognition could you have by the JNA of the primacy of

    20 the government? By exempting these people from

    21 military service, when everyone else is obligated to

    22 fight, it shows that the JNA felt that the government

    23 had a role of importance which had to be carried out,

    24 and even military service in wartime had to be

    25 subordinated to it.

  96. 1 What of all these stories that the Defence

    2 puts forward that Slavko Dokmanovic had no power or

    3 influence because he was viewed as a bad Serb, a man

    4 despised in his own community. I am sure that among

    5 some Serbs, he wasn't well-liked, such as the nature of

    6 political office. People who hold public office cannot

    7 please everyone all the time, but I would suggest to

    8 the court that these stories have been greatly

    9 exaggerated, once again in an attempt to adapt to what

    10 is acceptable now that times are different.

    11 Let's look at the government of which Slavko

    12 Dokmanovic was a part, the government of the Serbian

    13 District of Slavonia, Baranja, and Western Srem, the

    14 government of Goran Hadzic. What did this government

    15 stand for? What did it represent? It was a government

    16 built on the misery and suffering of anyone who wasn't

    17 a Serb. It was a government that used ethnic cleansing

    18 to secure territory over which it could rule. It was a

    19 government that hungered for even more territory after

    20 it had gotten a totally destroyed Vukovar. After the

    21 horrible cost of war there, the thousands of persons

    22 killed, the city in ruins, Goran Hadzic jubilantly says

    23 they should move toward the Serbian border, should

    24 expand further.

    25 I will submit to you that one of the few

  97. 1 truthful things that Goran Hadzic said in his testimony

    2 to this court was that things were not normal then. He

    3 is absolutely right about that. At least in the eyes

    4 of the Vukovar Serbs, things were very different in

    5 1991. In 1991, they had won. Serbia had proved it was

    6 right because it had crushed the Croats. All of their

    7 rhetoric of hate and murder was perfectly acceptable.

    8 It was the foundation of their power, and safely

    9 situated behind their razor wire and mine fields, they

    10 were part of Mother Serbia. Nobody could touch them.

    11 They could do anything they wanted to the Croats. They

    12 could literally get away with murder.

    13 They could not imagine that one day the land

    14 from which they expelled all of the Croats would again

    15 become a real part of Croatia. They could not imagine

    16 that one day someone would dig up the mass graves, that

    17 one day a court would be established to hold persons

    18 responsible for war crimes, but all of these things

    19 have happened. Times have, indeed, changed. And the

    20 convoluted and inconsistent explanations that you hear

    21 in court now for what they said and did then are the

    22 strong confirmation there is for the fact that times

    23 are different now. Actions and words for which they

    24 had no shame in 1991 now must be explained away for

    25 they have come back to haunt them.

  98. 1 What was the role of this government of Goran

    2 Hadzic and Slavko Dokmanovic on the 20th of November,

    3 1991? We know that there was a meeting in Erdut on the

    4 19th. We have the minutes from that meeting, and we

    5 know, to some extent, what was discussed there, but a

    6 lot of mystery surrounds the meeting of the 20th in

    7 Vukovar. We have heard varying reasons for why this

    8 meeting took place, many of which are inconsistent.

    9 I will submit to Your Honours that from the

    10 early morning of 20 November, 1991, the JNA intended

    11 that the men taken from the hospital were to die. The

    12 behaviour of the JNA officers and the statements that

    13 they make, particularly Major Sljivancanin, corroborate

    14 this. But when the prisoners were taken to the JNA

    15 barracks, I would suggest to you that the JNA did not

    16 want to take this action alone. It wanted a civilian

    17 authority to give its blessing to the killings. As do

    18 most armies in the world, the JNA also desired official

    19 sanction from civilian authorities for its actions.

    20 Look at the testimony of Stipe Mesic as to

    21 what went on in the federal presidency from January

    22 through October 1991 as the JNA repeatedly sought the

    23 presidency's blessings for its operations. Thus, while

    24 the buses waited at the JNA barracks, Major

    25 Sljivancanin crossed over the road to VELEPROMET to get

  99. 1 the blessing of the Serbian District Government, to get

    2 the seal of legitimacy for the crimes which were about

    3 to be committed.

    4 There is no way that we can know exactly what

    5 was said at VELEPROMET or how it was decided that these

    6 men and women were to be killed at Ovcara. Short of

    7 one of the participants coming into court and saying

    8 that they took a decision to kill 200 people, I'll

    9 submit to you that such an occurrence is extremely

    10 unlikely. Anyone who took part in that decision is a

    11 principal to this crime, and few people are willing to

    12 admit to involvement in such an act. The evidence is

    13 very compelling, however, that such a decision was

    14 taken at VELEPROMET. Look at all of the circumstances

    15 that surround this meeting and look at what follows

    16 it.

    17 I'd like to draw a parallel from history, if

    18 I may, and in doing so, I'm not, in any way, attempting

    19 to equate the crimes but, rather, point out the manner

    20 in which crimes are planned. Consider the Wansee

    21 Conference which took place outside Berlin in 1942.

    22 It's generally agreed that this was the meeting at

    23 which the decision was taken to exterminate the Jewish

    24 population in Europe, what was referred to as the final

    25 solution. The only hard evidence coming out of that

  100. 1 meeting was a memorandum which talks about transport of

    2 Jews and says that utilisation of Jewish labour was

    3 crucial, that those who couldn't work would be treated

    4 accordingly.

    5 By itself, the document means little, but

    6 when it is examined in the context of what we know

    7 happened to Jews in Europe, the import of that meeting

    8 is made clear. When meetings of this sort are held,

    9 meetings to plan crimes, it is very unusual that

    10 persons outside the group involved actually knows what

    11 transpired. Any group of criminal conspirators is

    12 going to try to keep their conspiracy secret. It is

    13 the nature of conspiratorial acts.

    14 Rarely a conspiracy is revealed when one of

    15 the conspirators breaks the silence and tells someone

    16 outside the group. More often than not, though,

    17 evidence of conspiracies comes in the form of overt

    18 acts which take place afterward and which tend to show

    19 a course of action which was agreed upon by the

    20 conspirators. Such is the case here.

    21 Look at the minutes from the meeting of

    22 November 19th in Erdut which say that the JNA will come

    23 under the control of the government. Then a meeting

    24 takes place on the 20th of which no records are kept.

    25 Look at the presence of Arkan and Sljivancanin. Look

  101. 1 at the fact that the buses are held at the JNA barracks

    2 for at least two hours. It is clear that word has

    3 gotten around about what is happening. Surely this

    4 hasn't escaped the attention of the government meeting

    5 across the road, and surely Major Sljivancanin, who had

    6 gone to such lengths to conceal his crimes from the

    7 international monitors, is not going to just abandon

    8 the process while these prisoners are situated at the

    9 main JNA in the area.

    10 Sljivancanin goes to VELEPROMET for a

    11 reason. The government meets there for a reason, and

    12 then the buses suddenly have a destination and move

    13 out. What were they waiting on? Why were they held

    14 there for two or more hours? Why does Goran Hadzic

    15 leave and return several times? We can't answer these

    16 questions precisely because we weren't there, and no

    17 one who was there is going to make us privy to exactly

    18 what transpired. So we have to look at the overt acts

    19 which take place contemporaneous to and in the

    20 aftermath of the government meeting. We have to look

    21 to the words of Goran Hadzic spoken that very evening

    22 from Sid when he says that the government's "main

    23 resolution was that the detained Ustashas whom we have

    24 captured would not leave the territory of the Serbian

    25 District of Slavonia, Baranja and Western Srem."

  102. 1 He says that they have reached agreement with

    2 the military authorities as to this. Are these all

    3 just coincidences? Isn't it more logical to take Goran

    4 Hadzic's words and attribute to them the obvious

    5 meaning? Doesn't it make more sense, looking at

    6 everything that happened, to conclude that what he said

    7 in 1991 was the truth and that the 1998 version is one

    8 constructed for this court now that the crime has been

    9 exposed and one of his ministers is in gaol.

    10 If these are coincidences, then why did

    11 Slavko Dokmanovic not want to mention the government

    12 meeting at VELEPROMET? Look at his interview on the

    13 aeroplane. Look at the interview he gave in the

    14 prison. Look at all of the opportunities he has to say

    15 something about this meeting. Look at the direct

    16 questions put to him by Mr. Milner in this regard. Why

    17 the evasion on his part? Even after he mentions going

    18 to VELEPROMET, he steadfastly avoids discussion of this

    19 meeting. What happened there that makes him so

    20 reluctant to associate himself with it?

    21 The Defence has made great efforts to

    22 characterise it as something other than what it was.

    23 Isn't it more logical, though, and likely that all of

    24 these things that happened were not coincidence?

    25 Rather, the explanation for these things is the obvious

  103. 1 one, that persons in the government took the decision

    2 that Goran Hadzic said they did, and that was, in fact,

    3 carried out with the execution of 200 or more men and

    4 went at Ovcara hours after he announced the decision on

    5 Belgrade television.

    6 After this fateful meeting at VELEPROMET

    7 concludes, what does Slavko Dokmanovic do? He goes to

    8 the centre of Vukovar. He and his companions drive

    9 around. Everything they see they blame on the Croats.

    10 When they see a building destroyed, they automatically

    11 assume it must have been destroyed by the Croats. When

    12 they see dead bodies, they automatically assume they

    13 must be Serbs killed by Croats. Today the witnesses

    14 say they weren't angry and that they didn't blame the

    15 Croats. But if you have any doubts, listen to the

    16 tape, listen to them curse the Croats and their Ustasha

    17 mothers at everything they see.

    18 I will submit to you that after leaving the

    19 centre of Vukovar, Slavko Dokmanovic decides to go to

    20 Ovcara himself. He was at VELEPROMET. He knows what

    21 is going to happen to these men, that they are all

    22 going to be killed. He just can't resist going out

    23 there and seeing it for himself.

    24 You can imagine the reason Slavko Dokmanovic

    25 went there, the once proud mayor of Vukovar, chased

  104. 1 from his rightful office by the Croats, the bitterness

    2 of those months of exile in Trpinja, still recognised

    3 as mayor by the Serbs, but without access to his seat

    4 of government because it is occupied by the Ustashas.

    5 You can imagine the hate, the frustration, and the

    6 anger. Then the anger of all those months compounded

    7 by what he sees in Vukovar, the bodies, the destroyed

    8 Serbian church, all done by the Croats. You hear his

    9 interview that Vukovar will be forever Serbian; there

    10 is no room for Croats.

    11 If you seek the reason why Slavko Dokmanovic

    12 needed to go to Ovcara, look at the reason why every

    13 other Serb went there? Look at why these captive men

    14 and women were held at the hangar for several hours.

    15 It would have been easy enough just to kill them

    16 straight away.

    17 THE INTERPRETER: Would the speaker please

    18 slow down?

    19 MR. WILLIAMSON: But it wasn't enough to do

    20 that, to murder unarmed, defenceless prisoners in cold

    21 blood.

    22 What Ovcara was about was punishment. The

    23 Serbs had won. The Croats were vanquished. They had

    24 to be beaten and terrorised and tortured so that they

    25 would know that when they went to their death that the

  105. 1 Serbs had been right and they had been wrong. The

    2 Serbs wanted to rub it in their faces that they had

    3 lost. The victors couldn't resist pouring salt in the

    4 wounds of their helpless victims.

    5 But times are different then, and no Serb who

    6 was at Ovcara ever expected that a Croat who was there

    7 would have the opportunity to sit in a witness box and

    8 point the finger at him for having taken part, but it

    9 has happened. You have heard men who survived that

    10 brutal day come in this courtroom and point their

    11 fingers at Slavko Dokmanovic and say, "You were there."

    12 You have heard him say how the accused, when he

    13 recognised him, Cakalic said, "So you too are here,

    14 Inspector."

    15 He couldn't resist being a part of that. He

    16 too needed his pound of fresh. He needed to repay the

    17 humiliation he felt at being stopped by the Croatian

    18 police, he, the elected mayor of Vukovar. He needed to

    19 show the other Serbs there that he was just as radical

    20 as they were.

    21 There was no longer any need to sit on the

    22 fence. The victory of the Serbs was overwhelming and

    23 clear cut. The victory was based on ethnic hatred and

    24 intolerance. The government in which Dokmanovic served

    25 had its foundation on those bases. How better to show

  106. 1 that he was one of them, one who embraced hatred and

    2 violence every bit as the most radical of Serbs. How

    3 better to silence Serb critics who said he wasn't

    4 extremist enough. This was easy, after all. He knew

    5 these men were to be killed.

    6 How did Slavko Dokmanovic know that these men

    7 were going to be killed? He knew it because he had

    8 been at VELEPROMET where the decision was taken. Even

    9 outside the confines of the government meeting, it was

    10 common knowledge at VELEPROMET as to what was going to

    11 happen. The buses are parked just down the street.

    12 Everyone is talking about it. Witness DB certainly

    13 knows about it. This is a man who is in Dokmanovic's

    14 company that day. He is all over the videotape.

    15 He goes over to the barracks to have a look.

    16 He tells Cakalic that he's on the wrong bus and then

    17 goes on to say that all of the buses are the same. He

    18 knows the fate of these men, as does everyone there.

    19 Word has spread quickly. Witness Q hears of it in

    20 another part of town. Everyone knows that the Ustashas

    21 are to be killed. One of the men who will be beaten to

    22 death at Ovcara, Damjon Samardzic, is told at the

    23 barracks that he will die.

    24 It is clear that people know what is to

    25 happen by the fact that even before the buses leave the

  107. 1 JNA barracks, attempts are already being made to save

    2 people. After the buses arrive at Ovcara, attempts to

    3 save a lucky few continue.

    4 Slavko Dokmanovic goes to Ovcara with full

    5 knowledge of what is to transpire. What does transpire

    6 at Ovcara when he arrives? He gets there as the slow

    7 process of unloading prisoners is finally coming to an

    8 end. Six buses full of men have had to pull up in

    9 front of the hangar in turn, and prisoners have been

    10 forced off one by one. A prisoner is forced to run

    11 through the guantlet formed by JNA and local Serbs,

    12 beaten with fists, clubs, axe handles, and kicked by

    13 boots. And then another prisoner is taken off the bus

    14 to experience the same treatment, and on and on the

    15 process has gone all afternoon.

    16 Inside the hangar, the prisoners find no

    17 relief because the beatings continue there as well.

    18 Some are beaten even more brutally during this period,

    19 and we know that two men are actually beaten to death.

    20 All of this is a precursor to the executions which will

    21 take place later that evening.

    22 What about Slavko Dokmanovic makes his role

    23 at Ovcara so significant? The best answer to this

    24 question came from Emil Cakalic when he testified.

    25 Perhaps you can remember the emotion with which he said

  108. 1 it: "I would have been happy today not to have seen

    2 him there, because I was thinking how can an

    3 intellectual, a person with whom I'd often talked in

    4 his office, who knew these people, I was asking myself,

    5 how could he do that?"

    6 Despite all the attempts by the Defence to

    7 portray him otherwise, the fact is that Slavko

    8 Dokmanovic was a man of influence, a man of power. He

    9 had been mayor of Vukovar. In the eyes of the Serbs,

    10 he still was. He was part of the regional government,

    11 a minister. He would be mayor again. By virtue of his

    12 political positions, he was in the highest echelons of

    13 civilian authority in the region. By virtue of his

    14 membership in the government of the Serbian District,

    15 he was in the body which coordinated the Territorial

    16 Defence and which was now assuming control of the JNA

    17 forces in the region, the same body that eight days

    18 later would reward Miroljub Vujovic, a commander at

    19 Ovcara, with appointment to the executive council

    20 running the city of Vukovar.

    21 By his presence, and even more so by his

    22 participation at Ovcara, Slavko Dokmanovic gave a

    23 blessing to the sadistic outpouring of violence.

    24 Ultimately, Your Honours, in deciding this

    25 case, it comes down to who you believe. On one hand,

  109. 1 you have Emil Cakalic and Dragutin Berghofer. On the

    2 other hand, you have Slavko Dokmanovic and his

    3 associates who were with him at various times on the

    4 20th of November.

    5 Let's look first at Slavko Dokmanovic and his

    6 associates. It is obvious what Mr. Dokmanovic's

    7 motivation is for lying. He wants to avoid conviction

    8 and a prison sentence. What about his colleagues? Of

    9 all of these people that we heard from who were

    10 allegedly with Mr. Dokmanovic on the 20th, relatively

    11 few were with him at the crucial period when he

    12 ventured off to Ovcara. The majority of witnesses,

    13 Witness DB, Witness DC, Vojin Susa, Boris

    14 Ivaskovic, Viselav Maletic, Ilija Koncarevic, Milos

    15 Vojnovic, Goran Hadzic, Radoslav Zlatic, Milivojevic,

    16 and Dusan Niculovic separated from Dokmanovic after the

    17 meeting in VELEPROMET or even earlier, although some

    18 say they see him a couple of hours later at Orolik.

    19 These witnesses do not provide an alibi.

    20 So that leaves Zoran Jevtovic, Jovan

    21 Cvetkovic, Vukosav Tomasevic, Nebosja Lazarevic, and

    22 Mirko Dragisic, five men. There are a number of

    23 reasons for them not to be truthful. Perhaps some or

    24 all of them accompanied Mr. Dokmanovic to Ovcara. He

    25 and Rade Leskovac, who didn't testify, were the

  110. 1 locals. It is natural if Dokmanovic and Leskovac

    2 wished to go there that the others would follow. It

    3 was, after all, one of the sights to see in Vukovar

    4 that day.

    5 Who wouldn't want a chance to see all the

    6 Ustasha terrorists captured at last, to see the people

    7 who they felt responsible for all the death and

    8 destruction. Who wouldn't want to see the monsters

    9 capable of such crimes in Serb captivity? It wasn't

    10 far out of the way, so why not make the turn and have a

    11 look? If they went along, it makes it very clear why

    12 they too would wish to conceal the truth about what

    13 really happened.

    14 Perhaps they lied because they wanted to

    15 protect a friend or perhaps they did it, some sort of

    16 misguided belief that it helped the Serb cause. Maybe

    17 it was for all these reasons combined. We don't know.

    18 The bottom line is this, though: For whatever reason,

    19 we know that they have lied. Zoran Jevtovic, Jovan

    20 Cvetkovic, Vukosav Tomasevic, Nebosja Lazarevic, Mirko

    21 Dragisic, and the accused himself, Slavko Dokmanovic,

    22 each and all lied as to where they went.

    23 All of them testify that from the time they

    24 left the centre of Vukovar, there were no stops, turns,

    25 or changes in direction until they stopped for the

  111. 1 buses. We know now that to be impossible, unless the

    2 videotape was altered. They all said that they stopped

    3 for the buses in Negoslavci. We now know that to be

    4 false. Even Radoslav Zlatic, the driver of Vojin Susa,

    5 was brought into this cover-up. For when he was shown

    6 the brief 21-second clip of the video from 15.42, he

    7 says with great assurance that it's Negoslavci.

    8 Look at the tape, and tell me if seeing

    9 something like that with what is shown that you could

    10 readily identify what it is. You have heard the

    11 testimony of Mr. Dzuro and Mr. Tabbush as to the

    12 efforts which were required to identify the precise

    13 spot where this was filmed. Mr. Zlatic's testimony in

    14 this regard is not credible and it is not credible

    15 because it was staged.

    16 Again, what is the significance of being

    17 where they were at 15.42 rather than Negoslavci? The

    18 spot, in and of itself, has no significance. As far as

    19 we know, no crime was committed there. They merely

    20 stopped and filmed some buses, buses which they had

    21 allegedly came up from behind but inexplicably got in

    22 front of to film, a seemingly innocent act. So why the

    23 need to lie about it? The need to lie had nothing to

    24 do with concealing the fact that they were at that

    25 spot, because that spot had no significance. So

  112. 1 obviously there was another reason for lying.

    2 Something else had to be concealed, so it was necessary

    3 to make this spot into something that it wasn't.

    4 To accomplish this, they all had to say it

    5 was Negoslavci. It is very clear why they said this,

    6 because if they were in Negoslavci when this was

    7 filmed, it would have already put them past the turnoff

    8 to Ovcara. It would have put Mr. Dokmanovic there with

    9 them, since they testified that it was his voice. It

    10 was done to create an alibi at the point where

    11 Mr. Dokmanovic really needed it, at the point where he

    12 and his associates leave Vukovar and are getting in

    13 close proximity to Ovcara. It wouldn't have been

    14 conclusive, by any means, but it would have bolstered

    15 his story. But they got caught. They all lied about

    16 where they went.

    17 An alibi is a defence which establishes that

    18 someone could not have committed a crime because that

    19 person was somewhere else. In the absence of

    20 independent evidence, an alibi is based solely on the

    21 credibility of witnesses. In this instance, every one

    22 of those witnesses who provides an alibi for

    23 Mr. Dokmanovic, and Mr. Dokmanovic himself has been

    24 proven to have lied, I would submit to you that if they

    25 lied about this crucial point, this most crucial of

  113. 1 points, then they did so for a reason, and it is

    2 appropriate to disregard everything in their

    3 testimony. They cannot be substantiated

    4 independently.

    5 Let's look, on the other hand, at Berghofer

    6 and Cakalic. What possible reason do they have for

    7 lying? They escaped death by the narrowest of

    8 margins. Everyone around them is brutally murdered.

    9 They too are beaten unmercifully. Why would they

    10 possibly want to blame someone for this who wasn't

    11 there instead of real perpetrators? If they were

    12 intent on nailing some Serbs for this, then why

    13 Dokmanovic? Why pick on poor Slavko? Why single him

    14 out? If this was about getting bad Serbs, then why not

    15 identify Goran Hadzic? Why not Seselj? Why not

    16 Arkan?

    17 Berghofer and Cakalic were from Vukovar.

    18 Surely they knew who many of the extremist Serbs were.

    19 Why didn't they name all of these people as being

    20 there? Why choose Dokmanovic? By everyone's account,

    21 there was no bad blood between them, no prior

    22 disagreements, no fights.

    23 Your Honours, it is clear that the Defence

    24 witnesses have reason to lie and it is obvious that

    25 they have lied. Emil Cakalic and Dragutin Berghofer

  114. 1 have absolutely nothing to gain by identifying someone

    2 as being at Ovcara who wasn't there. They have

    3 identified Slavko Dokmanovic for one reason and one

    4 reason alone and that is because he was there. They

    5 did this of their own accord in separate interviews

    6 years ago. They identified Slavko Dokmanovic at a time

    7 when the Prosecutor had not even heard of him.

    8 If this was some great conspiracy to get

    9 Slavko Dokmanovic, why not do it right and get everyone

    10 who is rumoured to have blood on his hands? The reason

    11 is that there was no big conspiracy. There was no

    12 manufactured story. There is only the truth. And the

    13 sad truth is that Slavko Dokmanovic, a family man, a

    14 man with good friends, a man with an education, a man

    15 who was elected mayor, chose to follow the path of

    16 hatred and violence, rather than that of tolerance and

    17 compassion.

    18 It is amazing, when you listen to the Defence

    19 case, you almost get the impression that the 200 people

    20 killed at Ovcara were Serbs, that the 1300 people

    21 pulled out of the latest mass grave in Vukovar were

    22 Serbs, that all of those destroyed houses in Vukovar

    23 were those of Serbs, that the men marched into the mine

    24 field in Lovas were Serbs, that those bused out of Ilok

    25 and Vukovar were Serbs.

  115. 1 One gets these impressions because all one

    2 hears from the Defence witnesses is how much Serbs were

    3 the victims and how Croats were to blame. But somebody

    4 killed all these people, somebody destroyed all of

    5 these houses, somebody forced all of these thousands of

    6 people out of their homes. It wasn't some mysterious

    7 force from another planet, it was their neighbours that

    8 did it, it was the army that did it, and it was the

    9 government of Goran Hadzic and Slavko Dokmanovic that

    10 did it. All of these terrible things happened, and

    11 they happened to the Croats in Vukovar; and no matter

    12 how much Slavko Dokmanovic tries to rationalise it, it

    13 was wrong.

    14 The Defence case you have heard is one of

    15 revisionist history, one which has tried to erase the

    16 ugly side of Slavko Dokmanovic, the side which is not

    17 acceptable outside the hate-filled world of Serb

    18 Vukovar of that time. It is one in which everything

    19 that was said and done in 1991 has to be cleaned up

    20 because the hate and violence are now exposed to the

    21 light of day and to people who don't agree that it was

    22 acceptable because things were different then.

    23 It is now 1998, and they tell you that what

    24 they said in television interviews and in the minutes

    25 of government meetings and in the laws that they passed

  116. 1 isn't what it appears. They tell you that the obvious

    2 and logical meaning of those words isn't right, but

    3 that for some farfetched reason, it was necessary to

    4 say that or to express it that way.

    5 Yet, we know what happened, and we know that

    6 the things they said all came to pass. The documents

    7 and the videotaped interviews and the laws match with

    8 what we know happened, not the sanitised versions which

    9 are being offered now that things are different.

    10 What doesn't match are the stories the

    11 Defence puts forward: Don't call Slavko Dokmanovic the

    12 mayor, he was president. Don't call him a Minister, he

    13 was only an expert on agriculture. There was no

    14 meeting at VELEPROMET, only an informal gathering. He

    15 wasn't angry at the Croats, only upset. He was never

    16 an extremist, just a peacemaker and a moderate. He

    17 never visited prison camps in Serbia in uniform, he was

    18 a simple civilian.

    19 But the facts remain, the dead bodies remain,

    20 the grieving families remain, and all of the

    21 revisionist history that the Defence puts forward

    22 cannot change that. The razor wire and the mine fields

    23 no longer protect him from the outside world. It is

    24 time for Slavko Dokmanovic to now answer for what he

    25 has done.

  117. 1 JUDGE CASSESE: Thank you. We now rise and

    2 we will reconvene at 2.30 sharp.

    3 --- Luncheon recess taken at 12.55 p.m.























  118. 1 --- On resuming at 2.32 p.m.

    2 JUDGE CASSESE: Mr. Fila?

    3 MR. NIEMANN: Sorry, Your Honours.

    4 JUDGE CASSESE: I apologise. I didn't see

    5 you.

    6 MR. NIEMANN: I just wished to hand to the

    7 Bench, I have given a copy to Mr. Fila, a schedule we

    8 prepared which sets out the counts and references to

    9 the evidence. It's just by way of assistance to Your

    10 Honours when you come to looking at the facts.

    11 JUDGE CASSESE: Thank you.

    12 THE REGISTRAR: That will be number 267.

    13 JUDGE CASSESE: Mr. Fila?

    14 MR. FILA: Your Honours, before I start with

    15 my closing argument, I have an obligation to fulfil

    16 towards you. I will remind you that you, Your Honours,

    17 were not very happy with me when Madam McDonald was the

    18 presiding judge. I said that this trial was not

    19 expeditious, and I said that if this trial were

    20 expeditious, I would apologise for this remark of

    21 mine. That's what I'm doing now.

    22 Now I would like to address the court and my

    23 learned colleagues from the Prosecution.

    24 First of all, I would like to say something

    25 with regard to the remark of Mr. Niemann, my learned

  119. 1 colleague, relating to the existence of the

    2 international conflict.

    3 I could not say that what Mr. Niemann

    4 proposed was not interesting, that this should be

    5 discussed as a preliminary matter, and I think that

    6 this should find its place in an amended version of the

    7 Rules of Procedure and Evidence so that this be treated

    8 as a pre-trial matter, whether something is an

    9 international conflict or not.

    10 What I couldn't agree is that the burden of

    11 proof should be on the Defence since, in all

    12 jurisdictions, the burden of proof is always on the

    13 Prosecution. But we could deal with this much more

    14 expeditiously if we were to follow the procedure

    15 proposed by Mr. Niemann. I think he is entirely right.

    16 Before I start, one more remark. I will not

    17 be using long words or, rather, heavy words, such as

    18 "lies," that witnesses are lying. I think that these

    19 words are not at the level of this Tribunal. I also

    20 state that the Defence has never claimed that Serbs

    21 were killed at Ovcara, that Serbian houses were razed

    22 to the ground in Vukovar, that 1.200 bodies exhumed now

    23 are Serbs, I never claimed that in Pakracka Poljana

    24 that are Serbs who are buried there, although there

    25 are, and not Croats. I never claimed that the war

  120. 1 crimes prosecuted by this Tribunal were committed by

    2 Serbs, Croats, or Muslims.

    3 The Geneva Conventions, on the basis of which

    4 this Tribunal was established, in my personal view and

    5 I think in the view of any honest men, they speak about

    6 crimes committed by non-human beings against human

    7 beings, about inhuman acts, not against Croats or Serbs

    8 or Serbs against Croats. There is not such a thing as

    9 a bad people, bad nation; there are bad individuals.

    10 I never claimed, when My Lai trials were

    11 going on, that Americans killed Vietnamese people; it

    12 was Lieutenant Kelly. We never used this judgement as

    13 evidence that somebody should be placed under house

    14 arrest for two years for killing 300 people. I will

    15 never say that Americans committed war crimes. Those

    16 who committed war crimes regardless of -- somebody

    17 killed those people.

    18 So nobody can put it to me or blame me of

    19 reviving history. I simply don't want to differentiate

    20 between people. You remember that I always offered my

    21 condolences to the victims in Vukovar. I never wanted

    22 to justify those people who did that, no matter who

    23 they are. It's not Ustashas, it's not soldiers, it's

    24 people, and people should be treated humanely. So much

    25 for the terms that we used here.

  121. 1 Now I would like to address some legal

    2 issues.

    3 The Defence has presented its opinion in

    4 written form, and I will just provide some further

    5 explanations as to why I have those views.

    6 Article 1 of the Statute of this Tribunal is

    7 the basis for all that we are discussing here. Here we

    8 are talking about serious violations, I repeat, serious

    9 violations of international humanitarian law. Since we

    10 are looking for individual responsibility, the

    11 Prosecution prosecutes, and the Tribunal tries people

    12 who are responsible for serious violations of

    13 international humanitarian law. It is the view of the

    14 Defence that this cannot apply to the case of Slavko

    15 Dokmanovic.

    16 Regardless of the reasons that have led to

    17 two Prosecutors who spoke here who have not determined

    18 exactly the time when Dokmanovic allegedly was at

    19 Ovcara, nor the time he spent there, nor the uniform

    20 that he wore at the time, nor what he actually did

    21 there, I can only conclude that they accepted the

    22 testimony of Witness Cakalic, that he was there two to

    23 five minutes.

    24 So what this Honourable Tribunal will be

    25 deciding on, it took two minutes. If I remember, for

  122. 1 the bombing of Hiroshima, in the name of introducing

    2 democracy to Japan, it took longer than two minutes.

    3 We have four relevant places for this

    4 incident: the hospital, the barracks, the hangar at

    5 Ovcara, and the place where the people were killed. In

    6 three of those four places, the hospital, JNA barracks,

    7 and the execution site itself, the Prosecution admits

    8 that Dokmanovic was not present there. For the fourth

    9 relevant place, the hangar at Ovcara, they claim that

    10 he was there for a brief period of time, two to five

    11 minutes.

    12 Heavy words we use such as "lies" "untruths"

    13 and so on, I will not be using any words of that

    14 nature. But let me give you a historical overview of

    15 the claims made by the Prosecution about what

    16 Dokmanovic did from the time of the first indictment,

    17 on the basis of which the prima facie case was

    18 established and Judge Riad put his signature on it, I

    19 will not say that this was done in bad faith by the

    20 Prosecution, but I will point to you the difference

    21 between the indictment on the basis of which Dokmanovic

    22 was arrested and what the Prosecution said now, and

    23 they are not friends of Mr. Dokmanovic which would lead

    24 them to lie. They are not members of the government of

    25 the Serbian district. They have to speak the truth.

  123. 1 They are bound to speak the truth, and that's what

    2 Mr. Niemann said, that in the Anglo-Saxon

    3 jurisdictions, it is the obligation of the Prosecution

    4 to speak the truth.

    5 So what did the Prosecution say when,

    6 pursuant to Rule 61, they presented the indictment

    7 against the three officers?

    8 Compared to what they have been saying now,

    9 what did the Prosecutors say when the decision was made

    10 to kill those people, they say, in hospital? Pursuant

    11 to Article 61, Sljivancanin said, "They will be eaten

    12 up by darkness," and that's what he said in the

    13 morning, and the decision of the government took place

    14 at 2.00. According to Mr. Williamson, according to

    15 what he says now, this is when the decision was made to

    16 kill them all.

    17 If you were to try those officers one day,

    18 will we be hearing the new version then? Because

    19 during the 61 proceedings, there were three important

    20 things: First, what Sljivancanin said; second, that

    21 General Mrkic was present at the hangar in Ovcara; and

    22 third, that a unit of the JNA with excavators was

    23 present there several days ago and that the victims

    24 heard those.

    25 What did we hear here at the trial against

  124. 1 Dokmanovic? Let me tell you very briefly, just an

    2 overview.

    3 In the first indictment, which somehow forced

    4 the warrant of arrest to be issued, it is merely an

    5 adding of Dokmanovic's name next to the names of the

    6 officers. Whether this is legal, it is up to you to

    7 decide. But after Dokmanovic's arrest, which we had to

    8 wait for such a long time, so many years to take place,

    9 the indictment was amended without any evidence being

    10 led. Why? If not for the simple reason that the first

    11 indictment was necessary to force the warrant of arrest

    12 to be issued, although the Prosecution was aware at

    13 that time that Dokmanovic was not at the hospital, not

    14 at the JNA barracks, and not at the execution site,

    15 because the indictment is immediately amended, and that

    16 is the indictment that you have before you.

    17 So from the perpetrator at the same level

    18 with the three officers becomes somebody who aided and

    19 abetted, so the Prosecution was aware of that before

    20 the beginning of the trial.

    21 From the time when this indictment was

    22 issued, the Prosecution keeps changing the role it

    23 ascribes to Dokmanovic, all in the name of what

    24 Mr. Niemann said, that it is the obligation of the

    25 Prosecution to speak the truth; and what Mr. Williamson

  125. 1 is now saying, that he has nothing to do against

    2 Mr. Dokmanovic, that he is merely here to represent the

    3 Prosecution.

    4 So on the 26th of March, they claim that JNA

    5 and Serb paramilitary soldiers, under the command or

    6 supervision of Mrkic, Radic, Sljivancanin, and

    7 Dokmanovic, on the 2nd of December, 1997. Item 28, JNA

    8 and Serb paramilitary soldiers, aided and abetted by

    9 Slavko Dokmanovic and under the command and supervision

    10 of Mrkic, Sljivancanin, and Radic; in the pre-trial

    11 brief, 15th of December, 1997, Serbian translation,

    12 page 8: The international monitors had to be misled,

    13 buses had to be organised, suitable and willing

    14 soldiers had to be found, bulldozers had to be made

    15 available to excavate the mass grave and to close it

    16 thereafter, a site for the execution had to be found.

    17 It was vital, therefore, that there be full cooperation

    18 between the Serbian military and paramilitary forces

    19 and the Serbian civilian authorities.

    20 Page 9 of the Serbian translation: It was

    21 the accused, Slavko Dokmanovic, who helped to

    22 facilitate the last part of the operation which began

    23 at the hospital and ended in Ovcara. He not only was

    24 able to provide knowledge about the site, but he also

    25 took a leadership role in the perpetration of the

  126. 1 crimes which occurred in the farming facilities at

    2 Ovcara.

    3 Then we get a written version of the opening

    4 statement, page 16 of the English text. The same

    5 Prosecutor, all in the name of truth, states the

    6 following: Witnesses will place Dokmanovic at key

    7 positions and will identify him within key roles in the

    8 beatings at Ovcara, in the events leading up to the

    9 mass killings, demonstrating his participation in these

    10 crimes, both direct and indirect.

    11 Page 18 of the English text: The accused is

    12 criminally liable for not preventing or stopping the

    13 beatings and killings at Ovcara while he was in a

    14 position to do so because he was able to exercise

    15 control over the people who participated in committing

    16 those beatings and killings.

    17 Furthermore, it is somebody who holds

    18 authority over those who are about to commit acts,

    19 prevents them from doing so, or punishes them if the

    20 acts have already been committed. The Prosecution will

    21 show that the accused failed to fulfil this obligation.

    22 Page 19. The Prosecution must show that the

    23 accused held the position as a superior. Second, that

    24 he had actual knowledge of the crimes that were to take

    25 place or had taken place. Third, that he did not take

  127. 1 the necessary measures to prevent the crimes or punish

    2 the perpetrators thereof, those who perpetrated the

    3 crime.

    4 In the actual opening statement, page 32,

    5 line 14 of the transcript: Dokmanovic's act as highest

    6 civilian authority in the Vukovar municipality, then

    7 planning, organising, preparing. Page 44, line 14:

    8 Had worked at Ovcara, knows the farming area very

    9 well. Page 45, line 5: During the war, many Serbs

    10 considered him their president. The accused was

    11 present at those beatings for an extended period of

    12 time. I emphasise "extended."

    13 Then page 57, line 12: The accused was

    14 present when these men were saved. The accused was

    15 present as final preparations were being made for the

    16 execution.

    17 And then, before the Trial Chamber, the

    18 Prosecutor said, page 121, line 4: The evidence that

    19 is admissible for his appearance for a short period of

    20 time at Ovcara. Then again: Dokmanovic was a member

    21 of neither the JNA nor paramilitary formation. He was

    22 something else altogether. I still don't know what

    23 this "something else" is.

    24 So that's how we started, in Dokmanovic's

    25 presence, with all those three officers at all places,

  128. 1 and we ended up with a short period of time at Ovcara.

    2 In the admissions of the Prosecution, they

    3 admit that Mr. Dokmanovic was removed from the Office

    4 of the President of the municipality, yet in the

    5 indictment, which has not an amended to this date, it

    6 was claimed that he was the president of the

    7 municipality throughout.

    8 So we now have the first big question: If

    9 the Prosecution were to appear with the indictment as

    10 it is now here with only two minutes and if it were to

    11 present it to Judge Riad, would they get the signature

    12 for the warrant of arrest? This is the legal and moral

    13 issue before this Trial Chamber.

    14 The Defence thinks that it would not happen

    15 and that's why we think the Tribunal does not have the

    16 jurisdiction to try Mr. Dokmanovic because this, what

    17 he is charged with, cannot be considered a serious

    18 violation of international humanitarian law. Maybe now

    19 I should take a moment to explain what this is all

    20 about. The events at Ovcara -- I will be repeating

    21 this and I have already said -- this is a massacre,

    22 this is something that cannot be justified, and this

    23 Tribunal has jurisdiction over such events.

    24 But you know very well that in our legal

    25 system and in your legal system, there has to be a

  129. 1 certain mental relationship between a man and the act.

    2 I read in the Tadic case some references to customary

    3 law in Australia. I know that my legal system does not

    4 apply here. But my legal system was codified in the

    5 14th century and it's probably more worth than

    6 customary law in Australia, the case law in Australia,

    7 on how the participation of a person in the commission

    8 of a crime is to be determined.

    9 So two minutes. That's the second part where

    10 we have to have something in the conduct of a person to

    11 have the serious violation of the international

    12 humanitarian law.

    13 What's also important, just as in the

    14 Nuremburg trials which were presented here at the

    15 beginning, this Tribunal, with its very existence,

    16 defies the sacred rule of nullum crimen sine lege but

    17 this has to be done from time to time.

    18 However, what is it that the states are not

    19 prepared, in my view, to do, and it's not just my

    20 opinion, to have this Tribunal create criminal

    21 offences. This Tribunal can only apply the rules of

    22 international law which are undoubtedly a part of the

    23 customary criminal law, not the Statute nor the United

    24 Nations wanted you to create new criminal offences, not

    25 even if it were to be in compliance with the case law

  130. 1 in Australia. And in the first instance the Tadic

    2 decision and the Erdemovic decision confirm this view.

    3 I think that this is now -- it is now the

    4 time to discuss the notion of individual

    5 responsibility. That's Article 7(1) and 7(3) of the

    6 Statute. In paragraphs 25 and 26 of the indictment,

    7 the Prosecution charges the accused Dokmanovic with

    8 individual and command responsibility under both items

    9 of this Article. The Defence distinguishes between the

    10 two provisions of the Statute, 7(1) concerns individual

    11 responsibility, Article 7(3) command responsibility.

    12 In the Defence's view, Article 7(1)

    13 incriminates actions undertaken directly by the

    14 accused, so this is what the accused personally did,

    15 something active, something that has been done, and

    16 Article 7(3) establishes liability for omission, for

    17 failure to act. So to prevent the acts or to punish

    18 the perpetrators.

    19 As for individual responsibility of Slavko

    20 Dokmanovic, we have two statements of two witnesses for

    21 the Prosecution. So that's 7(1). And in the paragraph

    22 25 of the amended indictment and 28 of the indictment,

    23 we could speak about aiding and abetting.

    24 The Defence claims that it has proven that on

    25 the 20th of November, 1991, Slavko Dokmanovic was not

  131. 1 present at any of the relevant places mentioned in the

    2 amended indictment, and you will see why he was not

    3 able to be there. So there is no individual

    4 responsibility in the sense of Article 7(1). What is

    5 important in principle in our opening statement we gave

    6 you certain variations, how Berghofer Cakalic could

    7 have recognised him, and in all of those versions or

    8 presuppositions for the differences, I never used the

    9 word "lies," that the two of them were lying. I merely

    10 gave some options how a mistake could have been made.

    11 The question is, first of all, does a person

    12 whom they saw, whoever this person was, or whether they

    13 saw such a person at all, with this kind of behaviour

    14 satisfies what is needed by this court in order for it

    15 to establish its jurisdiction. I repeat time and again

    16 that it is certain that the United Nations did not

    17 invent this court so that you would be dealing with

    18 minor misdemeanours. If we are quoting Mathausen and

    19 the Nuremburg trials, these are high trials, high

    20 courts. The Eichmann trial is a high-level one, so we

    21 have to find grave breaches and serious violations but

    22 also serious perpetrators.

    23 So in the Defence's view, the behaviour of

    24 this person, no matter who this person may be that was

    25 allegedly seen by Cakalic and Berghofer, does not

  132. 1 constitute serious violations of international

    2 humanitarian law, I mean, the things they claim that

    3 this person did, otherwise this would lead us a long

    4 way. I repeat, I am talking about the claim of the

    5 Prosecutor that presence is already commissioned

    6 because this belongs to customary law in Australia. I

    7 don't know which one. Is it the law of the colonisers

    8 of Australia or the aborigines?

    9 If we look at Chapter 7 of the United Nations

    10 Charter on the basis of which this Tribunal was

    11 founded, the Tribunal establishes jurisdiction only for

    12 serious violations. Therefore, I'm invoking the

    13 experience of Nuremberg and Tokyo trials, because major

    14 war criminals were brought before justice in that case,

    15 and minor perpetrators were left to national

    16 jurisdictions. So commanders, military commanders, and

    17 high ranking civilian officials can be held responsible

    18 for the crimes at Ovcara, and I do not see Dokmanovic

    19 in any one of these three roles.

    20 So the Defence underlines that the Prosecutor

    21 did not try to prove the personal responsibility for

    22 all three charges brought against Dokmanovic. If he

    23 did not prove aiding and abetting in the commission of

    24 mass crimes, if we take these two minutes that are

    25 contained therein, it was not even possible.

  133. 1 So why is no mention made of or any proof

    2 offered for whether there is any relationship between

    3 the three officers and Dokmanovic? They never saw each

    4 other. Dokmanovic doesn't know these three officers

    5 and they are the key to the events in Ovcara, because

    6 responsibility is based on the interview presented by

    7 Sljivancanin saying that from now on, this is the

    8 responsibility of the JNA. That is to say, the people

    9 who were taken out of the hospital are now the

    10 responsibility of the JNA. And then what happens after

    11 that, never mind. But, at any rate, it was their

    12 responsibility.

    13 However, the burden of proof relies on the

    14 Prosecutor to prove that Slavko Dokmanovic was, in any

    15 way, linked to these officers or the JNA, at any rate,

    16 and that is claimed in the prima facie indictment. And

    17 Judge Riad did the right thing in signing that

    18 indictment, because I would have signed it too.

    19 As far as Article 7(3) is concerned, the

    20 Defence believes that in that case it can only be a

    21 military commander or a high ranking civilian

    22 official. At the relevant time, Slavko Dokmanovic was

    23 not president of the Vukovar municipal assembly, nor

    24 was he in a position of authority with respect to those

    25 who committed the crime.

  134. 1 Cakalic's statement and even Berghofer's,

    2 which is wholeheartedly referred to by the Prosecution,

    3 from both statements, even if you accept them, you will

    4 see that both of them claim, one, that he was never a

    5 Chetnik or extremist, and both that he certainly is not

    6 responsible for this; whereas Cakalic says, in response

    7 to Honourable Judge Cassese's question, that he came

    8 out of curiosity.

    9 Has this Tribunal been established in order

    10 to meet the requirements of curious persons or the

    11 perpetrators of serious crimes? If criminal

    12 responsibility, according to 7(3), lies in the hands of

    13 perpetrator's superior, if he knew that subordinates

    14 were going to commit a criminal offence, yet do nothing

    15 to prevent them or punish them afterwards, that is the

    16 person who is held responsible.

    17 So let us see what did we see at the trial

    18 itself? On the 20th of November, 1991, Sljivancanin

    19 took people out of the hospital and, as I said, from

    20 now on, they are my responsibility. For Slavko

    21 Dokmanovic to participate in this responsibility, in

    22 terms of Sljivancanin, he would have to be superior to

    23 the JNA and to be responsible for events in their areas

    24 of responsibility.

    25 He is not a military or a paramilitary

  135. 1 person, as distinguished Prosecutor Niemann said. He

    2 obviously could not punish anyone or prevent any one of

    3 these three. And Mesic, we've been invoking him such a

    4 lot. He said that he could not influence the JNA. And

    5 could Slavko Dokmanovic, the former president of the

    6 municipal assembly of Vukovar, influence the JNA?

    7 Since when have former municipal assembly presidents

    8 been more important than the president of the state

    9 itself?

    10 The Prosecutor did not prove what is

    11 important, that Slavko Dokmanovic had authority over

    12 those who did the killing, not authority in general.

    13 You know, our state is not apart from this world,

    14 outside this world, outside this earth, so that the

    15 mayors were the people who had the worst reputations.

    16 And we would not choose hoodlums to be presidents of

    17 municipalities. And the witness Tretkovic (phoen)

    18 referred to that too. These were prominent people who

    19 were elected. But this is a question that the

    20 Prosecutor did not respond to. Over whom do they have

    21 authority, and did he have authority over Vujovic, for

    22 example? Nobody proved that.

    23 The Prosecutor had to prove that he had such

    24 a civilian status that he could have ordered the

    25 perpetrators of this crime not to do this or to punish

  136. 1 them afterwards. However, also the Prosecutor had to

    2 prove that Slavko Dokmanovic did have information that

    3 the crime would occur or that it had occurred. So

    4 Slavko did not have the position of a military

    5 commander, and with the authority of military

    6 commander, he could not command.

    7 Also, different claims were made by the

    8 Prosecution that everyone knew at VELEPROMET; everyone

    9 knew in front of the barracks; everyone knew this;

    10 everyone knew that. I have been informed that,

    11 according to the Anglo-Saxon system, before a jury, you

    12 cannot present assumptions. You have to have hard

    13 evidence, but perhaps that system is not being applied

    14 here either.

    15 As regards to the claims that he was supposed

    16 to punish, I think this borders on the ridiculous. Who

    17 could have Slavko Dokmanovic punished from the JNA or

    18 the paramilitary units, and when was any reference to

    19 that made?

    20 So I summarise by saying, in order to retain

    21 7(3), the Prosecutor had to prove that he had the

    22 authority identical to that by a military commander, he

    23 knew that a crime had happened, and that he omitted to

    24 act with this authority in order to prevent this from

    25 being committed. The Prosecutor didn't even try to

  137. 1 prove this last point. As far as prevention is

    2 concerned, well, Cakalic said it. He could have tried

    3 to do so when he came up there out of curiosity, I

    4 quote, "out of curiosity."

    5 And then there's another very important

    6 category in our other own and in any other law, and

    7 that is cause, causality. If these two cause a

    8 consequence, if you cannot link the two together, there

    9 is no criminal responsibility. Where is this cause?

    10 Has anyone mentioned the cause? We keep going around

    11 in circles. We say this. You say that. Sljivancanin

    12 killed them in the morning. And he said, "You will be

    13 eaten up by the darkness in the morning." And now it

    14 is not so. No, no, no, then he was waiting there. He

    15 was at the government meeting to get approval there.

    16 On the basis of what is he claiming that? On the basis

    17 of what is the Prosecutor calling honourable men who

    18 are ministers? How can he be calling them

    19 conspirators? They have been heard.

    20 Among them, even Minister Susa, he was also

    21 at that meeting too. He said that he was the only one

    22 who saw Sljivancanin, and nobody else said that they

    23 saw Sljivancanin. So he was also a conspirator who

    24 passed this decision to have these people killed? Why

    25 didn't you arrest them then? Because you just talk and

  138. 1 talk and talk.

    2 Is this court involved in talking, in

    3 reaching conclusions, in stories? I have the

    4 impression that I'm listening to a story about

    5 terrorism, that we were in a beautiful country, that

    6 you saw a sunset or a sunrise or whatever. I think

    7 that this court has to deal in facts. If you do not

    8 have proof, then you can't really do anything with it.

    9 What I can prove, well and fine.

    10 In the opening statement, the Defence said

    11 that cumulative charges are not allowed. And I repeat

    12 this once again, this is H-1, and with the literature

    13 that is attached to it. Also we said why Articles 2,

    14 3, 5 of the statute cannot hold here. This was said in

    15 the Tadic case, so there is no need to repeat it. As

    16 far as Article 2 of the statute is concerned, the Trial

    17 Chamber in the Tadic case established that grave

    18 breaches of the Geneva Conventions were applicable only

    19 to international armed conflicts. So in order to apply

    20 this, it has to be an international conflict, an

    21 international conflict.

    22 Secondly, these crimes have to be committed

    23 against persons and property considered protected,

    24 especially civilians in the hands of a party to the

    25 conflict of which they are not nationalists. There is

  139. 1 this very interesting question of citizenship that the

    2 Prosecutor simply forgets. I wonder whether we took

    3 part in the same trial, because, after all, we heard

    4 experts here. We heard numerous witnesses. The

    5 Prosecutor divided them into Serbs and non-Serbs in the

    6 name of justice. So non-Serbs, Croats, tell the truth

    7 and Serbs lie. Since all Serbs lie, then I'm lying.

    8 The experts are lying. Everybody is lying. Only the

    9 Croats tell the truth.

    10 So if there is prosecution of persons of

    11 criminal nationality, are then we going to hear a

    12 different story, that all Croats tell the truth and all

    13 Serbs -- that all Croats lie and that all Serbs tell

    14 the truth? Are we going to say that such and such a

    15 person is telling the truth and another person is

    16 lying.

    17 We explained in our opening statement why the

    18 first requirement of the existence of an international

    19 conflict has not been met, and there's no need to

    20 reiterate this, but I wish to remind you that Opinion 8

    21 of the Badinter Commission was inaccurately quoted by

    22 the Prosecutor. I never offered this kind of evidence

    23 with inaccurate quotations, but this was done

    24 intentionally, because it says that Croatia, on the 8th

    25 of October, severed all ties with Yugoslavia.

  140. 1 When Badinter came to the conclusion that

    2 this was not true, that Stipe Mesic was president of

    3 the presidency of the SFRY until the 5th of December,

    4 that the prime minister of the SFRY was Ante Markovic,

    5 even after the 5th of December, that Kadjovic (phoen)

    6 remained to be the commander in chief, that Brovat

    7 (phoen) is in Slovenia, not to mention all the Croats,

    8 the minister of foreign affairs of the SFRY, Budimir

    9 Lanto (phoen), also a Croat.

    10 Where do you see this in the history of the

    11 world, that on a territory there are two

    12 internationally recognised states, and that then one

    13 independent state has its citizens leading another

    14 independent state?

    15 I agree that the disintegration of Yugoslavia

    16 was underway, but the outbreak of the fighting in

    17 Vukovar -- after all, the fighting did not break out on

    18 the 8th of October. And then from the 9th of October,

    19 it turned into international fighting. And on October

    20 8th, it was internal shelling. And it was internal

    21 shelling and it was internal shells that were falling,

    22 and after that international shells. This was fighting

    23 that was going on.

    24 Prosecutor Niemann said that Croatia at that

    25 time was internationally recognised. That simply is

  141. 1 not true. On the 8th of October, Croatia was not an

    2 internationally recognised state. In 1991, Croatia,

    3 Serbia, no one was officially recognised,

    4 internationally recognised by the United Nations. I

    5 showed you numerous resolutions of the Security Council

    6 where Yugoslavia is constantly referred to. And also

    7 at all the meetings later on in The Hague, it was

    8 always Yugoslavia. In 1992, retroactively, Croatia was

    9 recognised in some segments, but we are talking about

    10 1991. What do people know in 1991, whereon the

    11 territory of the then SFRY, not what would happen in

    12 1992 and then go back to 1991. Retroactive effect does

    13 not exist in international law, just like it doesn't

    14 exist in any other law.

    15 Furthermore, there is another question. I

    16 abide by what I said, that these people were citizens

    17 of the Republic of Croatia, and everyone together are

    18 citizens of Yugoslavia. And no one mentioned the

    19 expert who brought the constitution of Yugoslavia. At

    20 that time, we all had double citizenship, republican

    21 and federal. Federal was vis-à-vis third states,

    22 vis-à-vis the entire world, the outside world, and

    23 internal citizenship for internal purposes.

    24 And it is not related to ethnicity.

    25 Professor Ekonomides also explained this, that there is

  142. 1 a confusion between ethnicity and belonging to a

    2 certain state. Not all Serbs were the citizens of

    3 Serbia.

    4 This question of citizenship is very

    5 important because, according to the Geneva Convention

    6 on the protection of civilians, this question is

    7 raised. Therefore, this question is raised. So as

    8 long as the SFRY is there, everyone is a citizen of the

    9 SFRY. But from the moment they attain independence,

    10 the SFRY no longer exists. There's no parallelism,

    11 that is to say, of an independent SFRY and an

    12 independent Slovenia, Macedonia, Croatia, whoever. As

    13 long as the SFRY was there, we were all SFRY. When the

    14 SFRY ceased to exist, then these states came into

    15 being.

    16 On this territory in the time which is

    17 represented in the indictment, the currency is the

    18 Dinar. The army of the SFRY guards the borders of the

    19 SFRY. Communications are still possible. Mesic asks

    20 for an aeroplane, not from the Croatian army, but from

    21 Belgrade, from the SFRY, to go to attend a meeting.

    22 Until the very last moment, he has been promoting

    23 generals. I showed you all of that.

    24 How come this could be an independent Croatia

    25 then? So the Defence, as far as this is concerned,

  143. 1 believes that this is an internal armed conflict and

    2 that all victims were protected only by Common Article

    3 3 of the Geneva Conventions.

    4 What was this armed conflict in Yugoslavia?

    5 There were two on the territory of Croatia, one between

    6 the SFRY and the Croatian forces, and the other one

    7 between the Croats and the Serbs from Croatia, that is

    8 to say, a civil war. That is the kind of armed

    9 conflict this was. And these Serbs from Croatia

    10 controlled a good part of Croatian territory all the

    11 way until the Flash Operation in 1995.

    12 We have heard time and again statements about

    13 rebellions of the Serbs for no reason whatsoever. The

    14 court knows that, according to the constitution, that

    15 there were different republics and different

    16 constitutions. But the constitution of Croatia knew of

    17 two constituent peoples with equal rights, the Serbs

    18 and Croats. And if it is peoples who have the right to

    19 self-determination as it is recognised in the world,

    20 then the Serb people also have the right to

    21 self-determination like the Croat people. So there are

    22 two peoples. And the Croat people also did not

    23 recognise the human rights of the Serb people, and that

    24 is why they started losing their jobs in Croatia, et

    25 cetera. And that is important, if it is important at

  144. 1 all, for this case.

    2 Throughout this conflict, the conference, the

    3 peace conference went on. And the Security Council

    4 throughout the time contained in this indictment treats

    5 Yugoslavia as SFRY, as a state, and the JNA as the

    6 armed forces of the SFRY. These are documents of the

    7 United Nations, not of the Prosecutor.

    8 As far as Article 3 of the statute of the

    9 Tribunal is concerned, the Defence says that it is

    10 untenable with Article 3 and Article 5 together. That

    11 is presented in the Tadic case. However, as far as

    12 Article 3 is concerned, this is predominantly The Hague

    13 Convention of 1907. So it is applicable to

    14 international conflicts, which is not the case here.

    15 Secondly, what is here at issue is that an obligation

    16 is imposed on a state as in 1910. Then states were

    17 punished, not individuals. And also this was a civil

    18 responsibility rather than criminal.

    19 The premise is, in this judgement, that Common

    20 Article 3 is comprised in Article 3 of the Tribunal's

    21 statute. The first thing I have to explain is that

    22 Article 3 of the statute treats acts that occur during

    23 actual fighting. And its point is to ensure the

    24 punishment of persons who use prohibited means of

    25 warfare, who unduly destroy cities, which would be the

  145. 1 case here, but not in the case of Dokmanovic. The

    2 victims of Ovcara are not related to the actual

    3 fighting. These were people who were in the hospital,

    4 that is to say, people who were not fighters.

    5 What's really interesting here to discuss is

    6 the issue of the Common Article 3 of the Geneva

    7 Conventions. Whether this Common Article is

    8 encompassed in the jurisdiction, falls under the

    9 jurisdiction of this Tribunal. If I were to testify

    10 under oath, I would say neither that it is, nor that it

    11 isn't, because I couldn't claim any of that. I think

    12 that it's the third option. This is something that we

    13 should consider very seriously.

    14 Why do I have these doubts? First of all,

    15 what is this Common Article 3? Why didn't the States

    16 put everything into the Geneva Conventions? Why did

    17 they single out this Article 3, if not for the reason

    18 that they wanted to protect their sovereignty, and not

    19 to have other states interfere with their internal

    20 relations, internal affairs. If I have a rebellion on

    21 my hands, I will handle it. I don't think that it is

    22 good, and that's not what I'm saying. Let me be more

    23 precise. I think this was not good. But that was the

    24 idea behind it of the state signatories to the Geneva

    25 Conventions, why they wanted to single out this article

  146. 1 which does not envisage international conflict.

    2 Now we have the question which is very

    3 important. This Common Article 3, did it become a

    4 custom of war in the meantime? And then we can subsume

    5 it under the statute. This is the route to take if you

    6 want to do that. I'm not quite sure about that. First

    7 of all, I did not see in any jurisprudence, especially

    8 not among the great forces, that they had changed their

    9 views of this, and that the Article 3 has become the

    10 custom of war which would be binding for all states,

    11 not just a small state such as mine. And I have not

    12 seen that they accepted that as a custom of the

    13 international customary law.

    14 Finally, we have a very dangerous thing, and

    15 that's the statute of the International Tribunal for

    16 Rwanda. Why is this important? The statute of the

    17 International Tribunal in Rwanda establishes that

    18 Tribunal about a year, a year and a half, if I'm not

    19 mistaken, after this Tribunal. For the first time, the

    20 Common Article 3 of the Geneva Conventions are

    21 mentioned in that statute.

    22 If the Common Article 3 was to be applied

    23 here before this Tribunal, why then is it specifically

    24 mentioned in the case of the Rwanda Tribunal? We have

    25 to find a reasonable answer for this. Because if this

  147. 1 is something that is understood without saying, then

    2 why is it singled out there, underlined there? And if

    3 it needs to be mentioned specifically, then you're not

    4 bound by its provisions.

    5 Please don't misunderstand me. I don't want

    6 to sound arrogant. This is something that's been

    7 bothering me. This is something that should be thought

    8 about. Let me reiterate that I'm not for or against.

    9 This is something that should be considered seriously.

    10 Finally, in Article 3 of the Tribunal, we

    11 have attracted to the enumeration of serious

    12 violation. There are different kinds of those

    13 violations, but killing could not be accepted under

    14 other violations. Because if you compare what is

    15 listed in Article 3, is it possible that murder,

    16 killing, is less important than what is enumerated

    17 here. And had those who passed the statute wanted

    18 that, they would have listed murder specifically, and

    19 we would not have a situation where the Prosecutor

    20 would qualify it as other violations. I would

    21 understand something less serious as another

    22 violation. Murder is the most heinous, most serious

    23 act.

    24 The reason why I point this out is because

    25 the Prosecution did not charge Dokmanovic with any of

  148. 1 the acts enumerated in Article 3 but with murder, which

    2 also is a part of Article 2 and Article 5. As far as

    3 Article 5 is concerned, and this will conclude the

    4 legal part of my closing argument, you need to prove

    5 the existence of the armed conflict and that these are

    6 crimes against humanity prohibited in the international

    7 customary law. And the third condition is that this

    8 should take place, despite the systematic and

    9 widespread attacks on a civilian population.

    10 This last part is the most serious problem.

    11 In the individualisation or responsibility for the

    12 accused, the accused must have committed one of the

    13 crimes described in Article 5 of the statute, namely,

    14 murder and other inhumane acts, or that he knew by his

    15 acts of commission or omission, he was taking part in

    16 such a widespread and systematic attack against a

    17 civilian population. We do not dispute, I repeat this

    18 for the third time, that an armed conflict was

    19 underway, and that as part of that ongoing and long

    20 armed conflict, this horrible crime at Ovcara

    21 occurred. But the Defence does not admit to anything

    22 else. Why?

    23 In the Tadic case, the question was posed,

    24 and also during the 61 proceedings in the Vukovar case,

    25 that any murder of more than one person constitutes the

  149. 1 basis for the jurisdiction of this Tribunal. I think

    2 that we could not really say so. We have to make the

    3 link between the person and the act stronger.

    4 If we take the statement of Witness Q used by

    5 the Prosecutor, and he testified on behalf of the

    6 Prosecution, after all, he says that these are criminal

    7 acts by a group of people from the Territorial Defence

    8 who are no longer -- who took the people from the

    9 control of the JNA and brought them to Ovcara and

    10 killed them. And that's why I admitted those people

    11 who were on the buses were sentenced to death, because

    12 I accepted that Witness Q was speaking the truth. And

    13 now it turns out that the Prosecution does not believe

    14 its own witness.

    15 But what should be important here, if Article

    16 5 is to apply, he has to participate in one of the acts

    17 enumerated in Article 5, or to know that he

    18 participates in the attack on the civilian population,

    19 or to have knowledge, reasons to know that he did. At

    20 that time, we all thought that SFRY existed in all its

    21 territory, including Vukovar. The JNA was the

    22 legitimate armed forces of Yugoslavia in all its parts,

    23 including Croatia. And since Croatia could not be the

    24 victim of an aggression or a widespread attack of the

    25 JNA, because of that, then the accused could not have

  150. 1 the knowledge that this is some kind of an aggression

    2 by the JNA, and he couldn't have participated in that,

    3 because nobody in Yugoslavia had that kind of

    4 knowledge.

    5 As for the widespread nature, a person who

    6 commits a crime against one person cannot be accused of

    7 a crime against humanity, but if it's against more

    8 persons and within the specific context, then it's

    9 possible to charge him with that. The Defence thinks

    10 that this is an event in which Dokmanovic did not

    11 participate, and this is why Dokmanovic cannot be held

    12 responsible. So we're not saying that the crime is not

    13 the crime. I don't want to be misquoted as saying that

    14 it was only Serbs who were killed at Ovcara.

    15 When it comes to who was killed at Ovcara, I

    16 said that it was not only non-Serbs, but Serbs as well

    17 were killed there. I showed that there were such cases

    18 among the corpses there, and I indicated that the

    19 Prosecution, intentionally or not, did not include a

    20 person of Serbian nationality on the victim list. What

    21 is the reason why this person was not on the victim

    22 list until the end of this trial? He was exhumed at

    23 Ovcara. This is on their conscience.

    24 As far as the question of the status of

    25 Dokmanovic is concerned, what is important for us is to

  151. 1 determine whether he was the president of the

    2 municipality at the time of the crimes. The

    3 Prosecution claims that it is true that by valid

    4 Croatian legal acts, he was repealed, but Serbs refused

    5 to recognise Croatian authority. I showed you

    6 documents of the Serbian authority repealing him,

    7 removing him from office. I also showed you the

    8 constitution that the Serbs invoke prohibiting the

    9 double functions, that nobody can be a member of the

    10 government and the president of the municipality.

    11 Expert witness Zlatija Dukic explained that to you.

    12 So if Dokmanovic was removed from the office

    13 by Croats and then by Serbs, then who is keeping him in

    14 that office except for the Prosecution? Which Serbs

    15 considered him to be the president of the

    16 municipality? Those who committed the crimes at

    17 Ovcara? Well, Witness Q said that they would have

    18 killed him. It's impossible. Nobody can pronounce

    19 himself to be a president of the municipality.

    20 In psychiatry, it is well known that most

    21 patients consider themselves to be Napoleons, but I

    22 don't think that they will be held responsible for

    23 Waterloo because they think themselves to be

    24 something.

    25 For this reason, Slavko Dokmanovic may be

  152. 1 considered as the president of the municipality only

    2 during those times when he was elected to that office

    3 and during the time when he was in that function.

    4 I fail to understand, why is it that you

    5 don't see why I make this difference? I'm not bothered

    6 with the term "mayor," but you have to understand that

    7 this is part of the self-government system. He is the

    8 president of the assembly. If there is no assembly,

    9 there is no president, and if somebody is elected the

    10 mayor, he does not need the assembly. He was elected

    11 the mayor, he is independent. That's the difference.

    12 And not merely the term.

    13 Instead of relinquishing those claims, that

    14 he is the president of the municipality, the

    15 Prosecution now settles him with two functions,

    16 minister in the government and the president in the

    17 municipality. If I was able to prove that he was the

    18 president of the football club, then that would be the

    19 third responsibility because he had the authority of

    20 the president of the soccer club and he had authority

    21 over his former players. What if a football player was

    22 at Ovcara? He would have authority over him. That

    23 would be the third responsibility.

    24 Finally, through numerous witnesses, we

    25 proved that this was military authority. I showed you

  153. 1 written documents indicating that nobody could move

    2 around without military permits. In what state during

    3 war operations and under military authority, where do

    4 you have a civilian authority functioning as well,

    5 especially the one that is self-proclaimed, as the

    6 Prosecution wants you to believe, that Mr. Dokmanovic

    7 proclaimed himself to be the president of the

    8 municipality?

    9 Furthermore, if his views are so extreme, how

    10 can you fail to see, Your Honours, that he was never a

    11 member of the government of the Serbian Krajina when

    12 the government of the Serbian Krajina was formed.

    13 There is no place for him in the cabinet. Why?

    14 Because he is a bad expert for agriculture? No.

    15 Because he is not good for that position. At that time

    16 they thought there would be an independent state.

    17 This is who the Prosecution witnesses

    18 negotiate with, those who are unable to make a

    19 distinction between mayors and members of government,

    20 such as Witness S. This government of the Serbian

    21 district of which Slavko Dokmanovic was a member of,

    22 and one of the Ministers here said he wanted to be

    23 called a clerk, they were not paid, they did not have

    24 an official car, they didn't have any of the

    25 accoutrements of government, and Slavko Dokmanovic was

  154. 1 organising, harvesting, and sowing. That must be the

    2 key position in any government, harvesting and sowing.

    3 What will we hear if the Prosecution gets

    4 their hands on the three people? Everything will have

    5 a key importance.

    6 So in the Prosecution's view, all the players

    7 are key players, and which are the key players? Those

    8 that I catch. There are so many keys here, I fail to

    9 see the keyhole.

    10 So the Defence has proved that Slavko

    11 Dokmanovic was not a member of the paramilitary or

    12 military formations. He did not have the authority to

    13 issue any commands, he was not the president of the

    14 municipality on the 20th of November, he did not have

    15 command or control over JNA or Territorial Defence, he

    16 was not a high-ranking civilian official who would have

    17 certain authorities.

    18 The Defence furthermore feels that we have

    19 proved that those who perpetrated those crimes were not

    20 Dokmanovic's subordinates and that his acts or failure

    21 to act, that doesn't have anything to do with what

    22 happened, what happened at Ovcara. The Prosecutor may

    23 not like this. It would have happened in the presence

    24 of Mr. Dokmanovic and even if Mr. Dokmanovic had not

    25 been there. And this key role, lasting all of two

  155. 1 minutes, will enter into the annals of legal history

    2 because I don't know what you can do in two minutes

    3 except cause a traffic accident.

    4 The relationship, the causal relationship in

    5 aiding and abetting, has to be proven. His acts must

    6 contribute to the commission of the act; otherwise, we

    7 would really be accepting the case law in Australia

    8 where mere presence constitutes aiding and abetting.

    9 So we will have a case where somebody breaks the leg of

    10 a football player at a football match; everybody who

    11 was there is as guilty as the person who broke the

    12 leg. But maybe in that jurisdiction, football was not

    13 played at that time. So causal relationship has to be

    14 established. In the Tadic case, it was determined so,

    15 and quoting numerous judgements from America, from

    16 Nuremburg, and so forth.

    17 The crime happened regardless of the

    18 contribution of Mr. Dokmanovic, so you cannot speak

    19 about aiding and abetting because there is no crucial

    20 contribution to the criminal consequence.

    21 So let me just finish with the alibi. I'm

    22 running out of time, but it shouldn't take long.

    23 Why the changes? Why the amendments in the

    24 indictment? Because we had the false witnesses, false

    25 alibis, five false witnesses. In 1991, a group of

  156. 1 people arrives for the first time in Vukovar, and some

    2 of them told you that it was the last time. Witnesses

    3 spoke to you honestly that they wouldn't even remember

    4 that occasion if it hadn't been for my investigator

    5 showing them the tape and, of course, why should they

    6 remember if they saw such an unimportant person in

    7 their lives as Slavko Dokmanovic?

    8 Take a group of witnesses for the very

    9 unimportant part; that's Backa Palanka in the morning.

    10 They recognise him on the tape. And at noon, they

    11 left. The other witnesses begin from that point, two

    12 from Vukovar, and other people who are not from

    13 Vukovar. The Prosecution accepts now that they reached

    14 VELEPROMET, that they took part in the meeting, they

    15 went on into town, and we should stop here.

    16 In 1991, Zoran Jevtovic was supposed to film

    17 and record and glorify the president of his

    18 municipality from Kladovo, and quite accidentally, he

    19 also records the image of Slavko Dokmanovic. If you

    20 accept that none of us were clairvoyant in 1991,

    21 because had we been clairvoyant, Dokmanovic and all of

    22 us, we would have made a 14-hour film, from the very

    23 moment he woke up that morning throughout the day, so

    24 that this would suit the purposes of everyone,

    25 including the Prosecutor.

  157. 1 He was simply recording Lazarevic, and he

    2 accidentally filmed Dokmanovic. He didn't even know

    3 that he had filmed him. In response to the question of

    4 the Prosecutor, he said that he didn't even know that

    5 he was in that town. What of the man who went there to

    6 give humanitarian aid; what did he go there for? He is

    7 a liar, according to the Prosecutor, a man who is a

    8 doctor of sciences, the director of a radio station, a

    9 prominent citizen. He's a liar. It is so easy to

    10 transfer blame that way.

    11 The other one is Jovan Cvetkovic, this other

    12 liar, the president of the municipality of Jagodina.

    13 At that time, you have him on that film that was made

    14 by the BBC who had the courage to say to Milosevic then

    15 what he thought about this war in Vukovar and this

    16 entire affair. He had that kind of courage. He was

    17 president of the municipality of Jagodina. He is a

    18 lawyer. He is now retired. He's a liar now.

    19 Dragisic, a man who educates children, the

    20 director of a school, the principal of a school, from

    21 the other car, he is also a liar. And, naturally,

    22 Dokmanovic is a liar too.

    23 This has been said just like that. You know,

    24 it's like Ping-Pong. 126 an hour. Everybody's a

    25 liar. And now, when we are supposed to ascertain what

  158. 1 Cakalic and Berghofer are saying, well, they are

    2 victims. So when the victim is not speaking the truth,

    3 then it is a victim. And when a witness, who sees a

    4 town for the first time in his life and for the first

    5 time in his life sees a face and he is reminded by a

    6 film that he has seen this and that, then he is called

    7 a liar. Why are they liars? Because they did not

    8 remember that they went back 375 metres. That's why

    9 they are liars.

    10 I repeat, when I got that tape from

    11 Lazarevic, I got it so that we could show, the tape

    12 could show where Dokmanovic was not. Not where he

    13 was. And, undeniably, at 15.42, Dokmanovic was not at

    14 Ovcara, and that is what I wanted to prove to this

    15 Honourable Court. I was not interested at all where

    16 this particular frame was at 15.42 and any other hour.

    17 But let us see what is the importance of this

    18 particular frame, this particular clip.

    19 Then comes Sljivancanin, and already in the

    20 morning he said, when the Rule 61 hearing was

    21 conducted, he said in the morning that he would kill

    22 everyone. But now, no. Now they say that he came to

    23 seek approval of the civilian authorities. And why is

    24 it said so? Because Dokmanovic is sitting here. If

    25 Sljivancanin was sitting here, then it would have been

  159. 1 different. Now you want to have Dokmanovic

    2 responsible. For example, if he comes there to ask the

    3 Minister of Agriculture, Dokmanovic, to kill all these

    4 people in Ovcara, and now what happens? Dokmanovic,

    5 having passed this decision to kill all these people in

    6 Ovcara, 200 people. Why? Because he's a Serb. He's

    7 bloodthirsty; he's thirsty for the blood of Croats. He

    8 wants to kill the Croats, the Ustashas, as much as he

    9 can, as many as he can. A terrible person. A man with

    10 the past of a monster, as he was called.

    11 He is going to tour the city first and then,

    12 when he tours the city, then he leaves the city in the

    13 direction of Ovcara, and when he gets to a point, I

    14 don't know where, then again he goes back to Vukovar.

    15 From 15.36, knowing that he is supposed to go to kill

    16 200 Ustashas, like any monster, he goes back to

    17 Vukovar. Had I known about this at 15.42, that he was

    18 going back, I would have gained an additional five

    19 minutes in the alibi because he needed time to get back

    20 and go back. So that suits the Defence better than had

    21 he proceeded further on.

    22 One more thing, Your Honours. Look at the

    23 distances involved. At 15.42, that is practically the

    24 same distance, 1.000 metres, just as if he were at

    25 Negoslavci, because the turning-off point for

  160. 1 Negoslavci is there. So it's all the same, from here

    2 to there, from there to here.

    3 But a different question is: Why would he go

    4 there? And I never heard this from this entire story.

    5 We heard so many stories of the Prosecutor. It is

    6 certain that it was a conspiracy there. We don't have

    7 proof in writing. You have no proof at all. You have

    8 assumption. You just have talk and nothing else.

    9 This person, he is just the form of a man.

    10 Within a year, he has been killed. Look at him today.

    11 Look at what he looks like. Look at the McFadden

    12 report. You have killed this man over this one-year

    13 period of time. You have killed the man in him. And

    14 now, how do you want to go through these acrobatics?

    15 You know, I remember this illusion of going through the

    16 Great Wall of China, or whatever.

    17 Somehow, you know, you have to have some kind

    18 of logic, a life logic, but I haven't heard anything

    19 about this. Five liars were driving around, and he

    20 didn't see the car behind him. Had they waited for

    21 this other car, then this car would have joined up with

    22 them. That is probably the way it happened.

    23 A person, a bloodthirsty man who is going to

    24 kill 200 Ustashas, 200 Croats, he's walking around

    25 town. He goes out, he goes back; he goes out, he goes

  161. 1 back. It is senseless. Where did you see this ever in

    2 your lifetime? For 35 years, I have been on this job

    3 and for 35 years, I have been seeking a logic in acts.

    4 Eight minutes are needed for Witness Dzuro to

    5 get from that place to Ovcara, but when he is driving

    6 50 kilometres an hour and when he is driving along a

    7 road where there are no other vehicles and where he

    8 knows where he's going. From the recording itself, you

    9 can see that buses are coming. If Dokmanovic were, at

    10 that very same point in time, to jump into the car and

    11 to go there, he would have to join the column of buses,

    12 and buses do not go 50 kilometres an hour. So he needs

    13 more than eight minutes to get there.

    14 And then what does he do? He abruptly closes

    15 the door of his car, he runs fast, he hits two men, and

    16 he goes back. In order to spend two minutes there, and

    17 then he goes back, and then at Orolik, Susa and others

    18 see him, as they said. Abracadabra system. This is

    19 Mickey Mouse proof. One cannot speak that way.

    20 And now, what is the time that is relevant to

    21 the Prosecutor in terms of his witnesses? What does

    22 Berghofer say? At 2.15, 2.30, and the Dutch police has

    23 also corroborated Dokmanovic was there until 15.42, so

    24 this is to say that the tapes are accurate.

    25 15.42. 16.15, it is already dark. And an

  162. 1 additional eight minutes to drive up there, so 15.50,

    2 25 minutes. Abracadabra. It would be magic to do all

    3 of that.

    4 But what do they say? The uniform of a

    5 lieutenant-colonel of the JNA, blue. Everybody is

    6 olive grey-green. No. Only Dokmanovic is wearing

    7 blue. Only the two of them. None of the honourable

    8 witnesses of the Prosecution did not see a single

    9 person wearing a blue uniform. Our expert showed what

    10 the uniform of an Air Force officer of the JNA looks

    11 like. Not like that at all. One of them, Berghofer,

    12 saw a zipper; the other one saw a cape. You can make

    13 many mistakes. But in the first statement that was

    14 made for the press which you have in the supporting

    15 material of the Prosecutor, he speaks about a navy blue

    16 uniform himself, and that is why the Prosecutor claimed

    17 that this was an airman's uniform.

    18 And then Williamson told Dokmanovic that he

    19 was there in Stajicevo as an officer, a reserve

    20 officer, I repeat, of the JNA, and when Witness S said

    21 that he was not an officer, then Williamson brought it

    22 down. He said, "Well, you were there as a soldier, not

    23 more than that." And Dokmanovic in front of you was

    24 asked whether in Stajicevo you were there as a reserve

    25 officer of the JNA. A reservist, an officer, not a

  163. 1 soldier.

    2 I'll try to slow down. My paper blew away.

    3 Finally, the question that is raised here,

    4 the people I brought here were people who talked about

    5 stopping, they were stopped twice in a settlement.

    6 They don't know where this Negoslavci is. Remember, it

    7 is the first time in their lives they were there. How

    8 come that they are liars now? Because they did not

    9 remember a detail that perhaps they went back 370

    10 metres? Only the first vehicle, not the second one.

    11 Because if the first car went back to wait for the

    12 other one, the other one never went back.

    13 I don't know how the Prosecutor draws the

    14 conclusion that both cars went back, and also those

    15 from the second car also said that they were with

    16 Dokmanovic all the time. In Orolik, they see him. In

    17 Negoslavci, they stop for a longer period of time. In

    18 Orolik, even longer.

    19 When you listen further on, the behaviour of

    20 Dokmanovic; is a normal man who is going to go and kill

    21 200 persons before that? You have life experience.

    22 You have experience in courts of law. I mean, he is a

    23 man without a criminal record. He was a father even

    24 then. Now he is even a grandfather; then he wasn't a

    25 grandfather. And you saw in their petition what his

  164. 1 fellow citizens wrote about him. Can that kind of

    2 person take part in the killing of 200 persons and then

    3 continue a conversation? Yes, he can, because he's a

    4 Serb. That is how I understood this because I heard

    5 that it was Serbs who were killing at Ovcara, and I say

    6 that it is criminals who were killing at Ovcara, not

    7 Serbs.

    8 I shall speak about punishment and

    9 sentencing, and Mr. Niemann referred to this, and I

    10 think it's a terrible thing to talk about this. You

    11 have a person with an impeccable past. Even Cakalic

    12 and Berghofer, look at what they say about his

    13 personality. Why didn't any one of them say that he

    14 played a key role?

    15 Look at the difference that the Prosecutors'

    16 investigators get when they talk to the witnesses and

    17 what the witnesses themselves say they said. When the

    18 Prosecutors' investigators speak to the witnesses, the

    19 witnesses talk about the key role of Dokmanovic, but in

    20 front of you, they say that accidentally he came up,

    21 out of curiosity. When the investigator of the

    22 Prosecution speaks to Witness S, and he says that he

    23 signed a statement saying that he was there as an

    24 officer in Stajicevo, Dokmanovic, and when he came to

    25 see you, he said he was some kind of soldier in some

  165. 1 kind of uniform, and ultimately it was proven that this

    2 wasn't any uniform at all. Not a military uniform at

    3 any rate, this tape.

    4 And when I showed on the tape what kind of

    5 clothes Dokmanovic was wearing and they ask Wagenaar to

    6 come in. Why Wagenaar? To prove that the witnesses

    7 were not telling the truth, the witnesses for the

    8 Prosecution, so they are saying that their own

    9 witnesses are not telling the truth.

    10 But if these witnesses are saying what the

    11 time was -- time is a very important thing in this

    12 trial. Tadeusz Mazowieszki established that everything

    13 at Ovcara occurred within four hours' time, between

    14 2.00 and 6.00 p.m., and the witness for the Prosecution

    15 shortened this period of time, between 2.15, 2.30 at

    16 the latest, up to 4.00 p.m., but they were already

    17 outside by 4.00 p.m.

    18 And what do they say further on? Slavko

    19 Dokmanovic is present when the buses are being emptied,

    20 and they are in the second bus, not the last one. But

    21 this is 14.30, up to 15.00 hours, and this is when

    22 Slavko Dokmanovic is in town. He is giving an

    23 interview to Tomasevic. When they get out, it is still

    24 daylight. Cakalic and Berghofer, I mean.

    25 When you look at the sun at 15.36 on this

  166. 1 famous tape, you can see that the sun is setting. The

    2 Prosecutor has heard all of that from the ABi, they

    3 heard it from the police in The Hague here, but they

    4 were looking for someone to say something different,

    5 but they didn't find anyone to say that.

    6 At 16.15, at 4.15 p.m., it is dark. Cakalic

    7 and Berghofer said that before dark, all of this was

    8 happening.

    9 So now, try to put Slavko Dokmanovic's

    10 behaviour into this context, from 15.42 until sundown,

    11 so that this could all fit into the statements made by

    12 honourable men, Cakalic and Berghofer, and I say even

    13 now that they probably had the wrong impression because

    14 there was an officer there with a moustache and also an

    15 officer wearing an olive green-grey uniform, the one

    16 who is blowing the whistle and whatever, that is

    17 mentioned in different statements, and when it suits

    18 the Prosecutor's purposes, then it is Mrkic, but, no,

    19 that is not important.

    20 It is possible that these persons were

    21 replaced. How come they only remember that it was him

    22 and that they were wrong in terms of the time, in terms

    23 of the uniform? They even didn't see him at the same

    24 place.

    25 Finally, this last evidence that I accepted

  167. 1 from the Prosecution today, here today, in order to

    2 help expedite this trial, and even more than that, I

    3 want to have the truth, that Witness Q says that he

    4 brought these two persons in front of the hangar

    5 because whoever got into the hangar didn't leave it

    6 after that. That is to say, that Witnesses Berghofer

    7 and Cakalic were not even in the hangar, according to

    8 Witness Q; and that is to say that Dokmanovic could not

    9 have been both inside and outside. Once in the

    10 statement and here differently.

    11 The witnesses that the Prosecutor calls liars

    12 only forgot that perhaps they stopped and went back 375

    13 metres, everything else fitted in; and also the

    14 distance Witness Dzuro said matches that on the film,

    15 that is their walk through Vukovar.

    16 And that is how we have reached this point of

    17 a hocus-pocus. How well Dokmanovic does this magic,

    18 when you hear his voice, 15.42, run into these two

    19 minutes and commit these six serious violations of

    20 humanitarian law and go back then and continue living

    21 peacefully and continue travelling along.

    22 That is your task, Your Honours. If that is

    23 why this court was established, I really have nothing

    24 further to add. Thank you.

    25 JUDGE CASSESE: Thank you, Mr. Fila. I

  168. 1 assume both parties have completed their presentation

    2 of the case.

    3 MR. NIEMANN: Yes, Your Honours.

    4 MR. FILA: Yes, Your Honours.

    5 JUDGE CASSESE: Therefore, pursuant to Rule

    6 87, we will now declare the hearing closed, and we will

    7 deliberate in private.

    8 I am happy, Mr. Fila, that you did appreciate

    9 that we were very keen to have an expeditious trial,

    10 and we will try to be consistent.

    11 No, no, it's all right. Even this afternoon,

    12 we were rather speedy.

    13 Since you like Roman law and Latin as much as

    14 I do, let me quote a Roman saying. A Roman, as you

    15 know, said: Bis dat qui cito dat. "He gives twice who

    16 gives quickly." So therefore we promise that we will

    17 try to deliberate as soon as possible and come to a

    18 conclusion as soon as possible, and we expect that it

    19 is most likely that we will probably render our

    20 judgement in two weeks' time. We will let you know in

    21 due time.

    22 There being no other matters, we will now

    23 adjourn.

    24 --- Whereupon proceedings adjourned

    25 sine die at 3.52 p.m.