Tribunal Criminal Tribunal for the Former Yugoslavia

Page 1891

1 Monday, 12 February 2007

2 [Open session]

3 [The accused entered court]

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

5 JUDGE ROBINSON: As I indicated last week, we would have a hearing

6 this morning on the Prosecution's motion for judicial notice of

7 adjudicated facts; and to facilitate the hearing, we had distributed three

8 areas which we would like the parties to concentrate on.

9 Let me just inquire whether you received them. This was done on

10 Friday.

11 Mr. Whiting.

12 MR. WHITING: Your Honour, my memo has two questions.


14 MR. WHITING: Yes, not three. But I'm happy to try to handle the

15 third question, if you put it to me.

16 JUDGE ROBINSON: Well, you should be able to.

17 MR. WHITING: Well, I'll do my best.

18 JUDGE ROBINSON: Yes. And I'd like to focus the hearing along

19 those lines, so I don't want the parties simply to get up and start a

20 recitation of the -- of what was their motion and the response given by

21 the Defence.

22 And so the first question that I identified was, "How does one

23 distinguish between a factual finding and a finding of an essentially

24 legal nature?" Because we don't take judicial notice of the latter, of

25 legal conclusions, and we give an example, "Proposed Fact 166, which says,

Page 1892

1 "Civilians in ABiH-held areas of Sarajevo were directly or

2 indiscriminately attacked from SRK-controlled territory between September

3 1992 and August 1994." The question there being whether that's a finding

4 of fact or a finding of an essentially legal conclusion with particular

5 reference to the words "directly or indiscriminately attacked."

6 The second question was -- and this relates to the same issue, but

7 we thought we would highlight it because it occurs so frequently. "Does

8 the term 'civilian' denote a legal conclusion as to the status of a victim

9 or, for example, of a building or an object?" And an example of that would

10 be proposed fact 178: "The SRK attacked civilians, men and women,

11 children and the elderly in particular, while engaged in typical civilian

12 activities, or were expected to be found in a similar pattern of conduct

13 throughout the city of Sarajevo between September 1992 and August 1994."

14 Now, the third area is perhaps the most -- the most difficult, and

15 I don't know if this is the one which you don't have.

16 MR. WHITING: Your Honour, I'm sorry to interrupt, but just to be

17 clear, actually, all three areas are on the memo. The first two questions

18 that you identified were merged into one question --


20 MR. WHITING: -- and so it is covered, Your Honour.

21 JUDGE ROBINSON: Yes. This is how we put the third question:

22 "In cases where the proposed facts," and I'm sorry, we should have

23 passed this on to the interpreters; my apologies, "in cases where the

24 proposed facts do not go toward the acts, conduct or mental state of the

25 Accused, should these facts nonetheless be excluded following" Karemera's

Page 1893

1 Appeals Chamber decision on the basis that admitting them would "not

2 advance Rule 94(B)'s objective of achieving expediency without

3 compromising the rights of the accused, particularly the right to

4 cross-examine?

5 "For example, are the rights of the Accused safeguarded for those

6 facts which - albeit from the pre-Indictment period - will be relied upon

7 by the Prosecution as evidence going to prove that the Accused knew,

8 should have known, or was put on notice that crimes had been or were about

9 to be committed for the purposes of establishing criminal responsibility."

10 I imagine you're familiar with the Karemera Appeals Chamber

11 decision, and these essentially are facts which do not go to the acts and

12 conduct of the accused and, therefore, might be admitted on that basis.

13 But when you take into account the wider interests of justice and the --

14 when you seek to balance the objectives of expediency with the rights of

15 the accused, particularly his right to examine, you may very well conclude

16 that the rights of the accused are compromised.

17 And we identified a number of factors -- a number of facts,

18 rather, proposed facts, following into this category, taken from the Galic

19 judgement.

20 So let us hear first from Mr. Whiting.

21 MR. WHITING: Thank you, Your Honour. And I understand I have 25

22 minutes.

23 JUDGE ROBINSON: Yes. I see now what was distributed.

24 MR. WHITING: Yes. And I understand I have about 25 minutes, Your

25 Honour.

Page 1894


2 MR. WHITING: Your Honour, I will go straight away to address the

3 two or three questions put by the Trial Chamber. But first I would like

4 to take just two minutes to set the stage of the issue, because I do think

5 that this becomes relevant to answering the second of the two questions

6 that have been put by the Trial Chamber.

7 As Your Honours are aware, the Prosecution filed its motion on

8 December 18th of 2006, and the Defence responded over a month later, on

9 January 19, 2007. The Defence, and this is what I think is critical, made

10 a single objection to the proposed facts which are in dispute, which are

11 facts 54 to 181. It's a single objection which is expressed in exactly

12 two sentences. And the objection they make is that those facts are not

13 relevant to this case. That is the only objection that they made.

14 Now, of course, the Trial Chamber has an independent obligation,

15 as does the Prosecution, to protect the rights of the accused. However,

16 in our view, that has to be - that has to be - in the context of the

17 chosen defence of the accused. If the rights of the accused mean

18 anything, they have to mean the right to choose one's defence, what the

19 defence will be. And here we would suggest that what the Defence has done

20 is indicated, through its response, that its defence is something along

21 the lines of, Whatever happened in -- from 1992 to 1994, that is not

22 relevant to this case which focuses on 1994 to 1995.

23 And that might be for a number of reasons. That could be because

24 when the accused took over the command of the SRK, things changed. He

25 changed things so that they were different. So what happened in 1994 to

Page 1895

1 1995 was different; or it may be that whatever happened in 1994 to 1995,

2 he is not responsible for it. There are a number of reasons why -- a

3 number of perfectly coherent reasons why 1994 is -- could be different

4 from the point of view of the Defence than 1992 to 1994.

5 So the point is the Defence says -- what they say is, Don't admit

6 those facts because they are not relevant; they have no bearing on this

7 issue. You cannot argue from those facts anything that occurred from 1994

8 to 1995, because for some reason what happened in that second phase was

9 different.

10 Now, I would ask Your Honours to hold that in your minds because,

11 as I said, that will become an important point in response to the second

12 question.

13 Now, of course, we say that what happened in 1992 to 1994 is

14 relevant, and I don't take the questions from the Trial Chamber as

15 disputing that or putting that into question, let's say. We say it's

16 relevant, 1992 to 1994, because it was the establishment, the creation,

17 the putting into place, of an ongoing crime which the accused then

18 inherited in 1994, in August of 1994, inherited and continued.

19 Not only that, but the Prosecution will offer evidence to show

20 that the accused - and this is evidence which is separate, of course, from

21 the adjudicated facts - that the accused held a responsible position --

22 responsible positions from 1992 to 1994 within the SRK, which meant that

23 he was both a part of putting this criminal plan, criminal scheme, into

24 place, and he was put on notice of it.

25 Mr. President, I think you summarised or you captured what the

Page 1896

1 Prosecution's argument may be once the adjudicated facts are put together

2 with other facts that the Prosecution will prove about that period, 1992

3 to 1994, and that is that, number 1, the accused was instrumental and a

4 part of putting together -- putting that criminal scheme into place, and

5 he was certainly aware of it; and number 2, and this is very critical, in

6 August of 1994, when he became the commander of the SRK, he continued that

7 scheme and did nothing to stop it.

8 And it's very important for the Prosecution to be able to prove

9 that this scheme was in place, and by "the scheme," of course, I mean the

10 campaign of shelling and sniping against civilians; that that scheme was

11 in place already by August of 1994, and the accused was well aware of it

12 and he did nothing to stop it but, in fact, perpetuated it.

13 Now, if I could go to Your Honours' questions. The first question

14 with respect to distinguishing between a factual finding and a legal

15 finding. If Your Honours don't mind, I'm going to combine the two

16 examples that Your Honours provided, the indiscriminate attack example and

17 the civilian -- the identification of a civilian example, into one --

18 essentially one issue.

19 The language that the Trial Chamber has identified, whether it's a

20 factual finding or an essentially legal finding, of course, comes from the

21 Krajisnik decision of 24 March 2006. And the important word, of course,

22 is "essentially." In our view, none of the facts that we have proposed,

23 including the facts that have been identified by the Trial Chamber in its

24 questions, are of an essentially legal nature.

25 Now, Karemera, the Karemera Appeals Chamber decision, is actually

Page 1897

1 highly instructive on this issue, if not determinative.

2 The first section of Karemera -- of course, we've been focusing on

3 the second section which deals with 94(B). The first section of the

4 opinion deals with 94(A), which is a different section but has

5 commonalities with 94(B). 94(A) deals with -- what's the word? It's

6 facts that are known -- common facts which are in within common knowledge

7 as opposed to adjudicated facts, and there are some differences between

8 those two sections which are identified by Karemera.

9 However, one thing that is the same, 94(A) and 94(B), is that it's

10 only facts and not legal conclusions which may be admitted. Whether

11 they're commonly known or previously adjudicated, it can only be facts.

12 And I would point Your Honours to the discussion in 94 -- about 94(A),

13 because there the court makes it clear what is an essentially legal

14 conclusion versus a factual finding.

15 For example, the Trial Chamber in Karemera had found that the

16 following facts -- the following facts were, in fact, legal conclusions or

17 of an essentially legal nature, and the Appeals Chamber disagreed and

18 reversed the Trial Chamber.

19 The first one is -- it's in paragraph 26 of Karemera, the Appeals

20 Chamber decision. It was this fact: "There were throughout Rwanda

21 widespread or systematic attacks against a civilian population based on

22 Tutsi ethnic identification." That contains widespread and systematic

23 attack. Also in paragraph 26: "During the attacks, some Rwandan citizens

24 killed or caused serious bodily or mental harm to persons perceived to be

25 Tutsi." That contains serious bodily or mental harm. Also in paragraph

Page 1898

1 26: "Between the 1st of January, 1994, and 17 July 1994, in Rwanda, there

2 was an armed conflict not of an international character." Paragraph 33:

3 "Between 6 April 1994 and 17 July 1994, there was a genocide in Rwanda

4 against the Tutsi ethnic group."

5 Now, I would submit that all -- now, all of those -- all of those

6 conclusions or characterisations were found by the Appeals Chamber to be

7 factual characterisations and not essentially legal characterisations.

8 And the Trial Chamber said that even -- that it is true that these

9 characterisations contained phrases with legal meaning, but nonetheless

10 they describe factual situations.

11 They went on to say -- went on further to say that it does not

12 matter that the facts constitute elements of the crimes charged, for

13 example, widespread and systematic attack, armed conflict. It doesn't

14 matter. It's still a factual conclusion; it's still a factual

15 description.

16 We would submit that none of the facts that are proposed by the

17 Prosecution in this case are any different from the facts that were

18 accepted by the Appeals Chamber in Karemera.

19 Just to be --

20 JUDGE ROBINSON: It would be helpful in that regard if, as against

21 what the Appeals Chamber is saying does not constitute a legal conclusion,

22 if an example of a legal conclusion had been given.

23 MR. WHITING: I can do that, Your Honour.

24 In the Prlic case, there were a number of -- there was a motion

25 for adjudicated facts based on prior decisions, and the -- and there's a

Page 1899

1 decision dated the 7th of September, 2006. And there were a number of

2 facts that were rejected because they were found to be essentially legal.

3 Now, we would -- we would respectfully disagree with some of the

4 ones that were identified by the Trial Chamber, but there are certain ones

5 which are clearly distinct from the ones that are in Karemera or the ones

6 that are in our case.

7 For example, fact number 55 from the 14th of June, 2006 motion in

8 the Prlic case -- I'm sorry, that's not fact 55 -- fact 55 in Prlic was

9 this fact: "The detention of the BH Muslim civilians in Sovici and

10 Doljani was unlawful and discriminatory." Fact number 63: "The Chamber

11 finds the transfers unlawful."

12 Now, those facts, I would submit, are distinct from the facts that

13 we have in our case or the facts that were in Karemera, because those are

14 extremely conclusory. To say something is unlawful does not really

15 describe a factual situation, which is what you have when you say an

16 attack is widespread or systematic or that there existed an armed

17 conflict. It's -- to say something is unlawful is really purely a legal

18 conclusion, and I think that is the distinction that -- that is where we

19 draw the line.

20 It's between characterisations which may use legal terms but

21 which, nonetheless, describe a factual situation. And one test is, could

22 you describe the same fact using other words. And so, for example, was

23 the attack widespread and systematic? Well, yes, you could use -- you

24 could describe that in a factual way using other words by saying the

25 attack went on for a certain amount of time, it covered a certain amount

Page 1900

1 of geographic area, it had a certain intensity.

2 I would distinguish those facts, those types of facts, which have

3 been found to be permissible under Karemera, and facts which are

4 essentially legal which are really just purely a legal finding or a legal

5 conclusion, which could not really be described factually in another way,

6 and that is, for example, this was unlawful.

7 So in our case, we would submit that all of the facts describe

8 purely -- well, no, that they describe factual situations, and you could

9 use -- you could recharacterise them using other words. It's just -- they

10 just happen to use the words that have a legal meaning, but they

11 nonetheless describe a factual situation.

12 So, for example, an indirect attack. Well, you could -- that's

13 saying -- all that's saying is that the attack was not aimed at a specific

14 location, that it was aimed randomly, that it was not focused, not

15 targeted. So you could find other words for it. It's saying that an

16 indirect attack is really no different than saying an attack was

17 widespread or systematic or that there was an armed conflict or that there

18 was a genocide. There's no -- those are really the same type of things.

19 They describe factual situations.

20 And the --

21 JUDGE ROBINSON: Genocide? Genocide against the Tutsis which the

22 Appeals Chamber found to be factual.

23 MR. WHITING: Yes. The Appeals Chamber found that to be a factual

24 situation, that there was a genocide against the Tutsis. Yes, sir.

25 JUDGE ROBINSON: And applying your criteria, that could be

Page 1901

1 described in some other away? All the Tutsis were killed or ...

2 MR. WHITING: Yes. I think that -- I think that really is -- the

3 two examples that I can think that are -- and we have to be guided by the

4 Appeals Chamber, Your Honour, and I think that the two examples that I can

5 think of which fall -- which are essentially legal are, number 1, saying

6 something is just -- is that it's unlawful in a conclusory fashion like

7 that --

8 JUDGE ROBINSON: May I ask, in the case of finding in relation to

9 genocide against the Tutsis, had not the Appeals Chamber before, in

10 another judgement, found that there was a genocide?

11 MR. WHITING: Well, Your Honour --

12 JUDGE ROBINSON: Well, the Appeals Chamber held that there was a

13 genocide in Srebrenica.

14 MR. WHITING: Right. And that's the same situation we have here,

15 Your Honour.

16 JUDGE ROBINSON: In a subsequent trial, to describe it as a

17 genocide would be entirely correct.

18 MR. WHITING: Yes --

19 JUDGE ROBINSON: Saying as to who committed it is another matter.

20 MR. WHITING: That's correct. That's exactly what Karemera said.

21 The finding that there was a genocide could be admitted in the Karemera

22 case -- in that case, it wasn't based on adjudicated facts; it was under

23 94(A) as common knowledge. But that, in part, depended on the fact that

24 previous decisions had found it. But that is exactly the same thing we

25 face here. An Appeals Chamber has found the facts that we proposed

Page 1902

1 occurred during 1992 to 1994. It's another matter to prove that the

2 accused had -- bears responsibility for it. So it's an identical

3 situation, Your Honour.

4 Now, with respect --

5 JUDGE ROBINSON: I was trying to find another basis for the

6 Appeals Chamber's finding that genocide against the Tutsis was a fact, and

7 trying to suggest that the basis might have been that the Appeals Chamber

8 itself might have made that finding before and so it was simply following

9 it. But I haven't read that part of the decision with sufficient care to

10 have a conclusive opinion on it.

11 JUDGE MINDUA: [Interpretation] Prosecutor, you're saying that the

12 test would be that you cannot have another word to characterise the word,

13 or it would be difficult to say whether it is the description of a fact or

14 the legal qualification, and you're given the example of genocide in

15 Karemera with the Appeals Chamber judgement. But it's difficult for me to

16 follow you.

17 I believe - correct me if I'm wrong - that the Appeals Chamber

18 came to that decision, which is that genocide is a common-knowledge fact,

19 because of internal decisions made by the Trial Chamber; therefore, it is

20 no longer necessary whenever there is a new trial for the parties to

21 demonstrate, once again, that there has been a genocide that occurred in

22 Rwanda. The Appeals Chamber is relying on internal decisions, but isn't

23 there another word that we could use instead of "genocide" without

24 qualification?

25 I think it's very difficult. I think there is no other word,

Page 1903

1 unless you qualify. Because for the moment we know that there was a

2 genocide in Rwanda against the Tutsi; more or less 800.000 of them were

3 killed in less than three months. But if there hadn't been the previous

4 decision of the Trial Chamber, then you could say there was a massive

5 slaughter of 800.000 people and only that; that might be of Tutsi

6 ethnicities or else, period. Because we have to demonstrate genocide

7 first and then have a legal qualification as the second step.

8 In our case, can we qualify and consider a situation regarding the

9 accused as we -- as can be done for genocide? I don't know. It's

10 difficult for me to find that. If we don't rely on previous decisions of

11 other Trial Chambers here -- I don't know if I'm very clear. The problem

12 is the limit between the legal qualification and the name you give to a

13 fact if there is no sound basis, robust basis, to establish a

14 common-knowledge fact.

15 So maybe regarding genocide, you have to explain, once again, to

16 us how you can say that it can be considered genocide if you don't have a

17 previous decision on that. Do you follow me?

18 MR. WHITING: I think, Your Honour, and I'll try my best to

19 respond. I think, Your Honour, that in our view there are two steps. The

20 first step is, is there a basis for recognising the fact? And under

21 94(A), it's common knowledge; under 94(B), it's an adjudicated fact. Now,

22 of course, under common knowledge, the fact -- whether it's been

23 adjudicated in a prior decision, that's also relevant. That can come into

24 94(A). So has it been adjudicated or is it common knowledge; yes or no?

25 If yes, if there's a basis for it, then you proceed to the second step;

Page 1904

1 and the second step is, is it a factual characterisation or is it an

2 essentially legal characterisation?

3 Now, with respect to genocide, I'm not familiar with --

4 completely, with the ins and outs of the decision with respect to

5 genocide. But what the Appeals Chamber held is that under 94(A), there

6 was a basis for the recognition of common -- of genocide as common

7 knowledge because of prior decisions, because of reports, because of

8 documents, because of the world, essentially, recognising that there was a

9 genocide there.

10 So you move to the second question: Is genocide a factual

11 description or is it an essentially legal description? And Karemera

12 answers that question. It has a -- that is directly the -- squarely the

13 question it answers, it addresses, and we have to be guided by that. It

14 says it is a factual description that can be judicially noticed.

15 And in our case, to bring this to our case, we have -- step 1, we

16 have a basis, the Galic Appeals Chamber decision which upholds the Trial

17 Chamber's decision, which upholds these facts, so we've satisfied step 1;

18 and then you move to step 2, which is are these factually or essentially

19 legal?

20 I agree that it may be sometimes difficult to draw the line

21 between factual and essentially legal, but I would say that all of our

22 proposed facts fall well within the line of factual, if you look at the

23 examples provided by the Appeals Chamber in Karemera. They are no

24 different. Saying that there was an indirect attack or that there was a

25 civilian who was injured is no different than a widespread or systematic

Page 1905

1 attack or genocide or serious bodily injury or all the things that were

2 found to be factual in Karemera.

3 Now, if -- the other point I would make with respect to the

4 examples taken -- and then I'd like to move, and I think I'm going to ask

5 for a few extra minutes, if I may, for the second issue. But the other

6 point to make about the examples provided by the Trial Chamber in this

7 case is that -- is to look at the testimony that has been given on these

8 issues. And witnesses, non-experts, non-lawyers, have provided Your

9 Honours with evidence about these issues, suggesting that they are factual

10 issues, because, of course, witnesses cannot give you legal opinions or

11 legal decisions.

12 So, for example, with respect to the civilian versus military,

13 witnesses of all types have been asked by the Prosecution, by the Defence,

14 by the Trial Chamber, whether there were civilians present, were there

15 military personnel. These are terms which are -- describe a factual

16 situation and which are commonly known and commonly understood by lawyers

17 and laypeople alike. And they are used in that way. People know what

18 "civilian" means. It describes somebody who are not in the military,

19 and that's how it's been used in this courtroom.

20 The same is true with respect to indiscriminate or indirect

21 attack. For example, Mr. -- I'm just trying to think of -- I just don't

22 want to use a protected witness. Mr. Harland, at pages 423, 424, and 336

23 of the transcript talked about -- gave evidence about attacks being

24 indiscriminate; so did Mr. Fraser at 1801, 1805 to 1806; so did Mr. Ghulam

25 Muhammed at page 740.

Page 1906

1 JUDGE ROBINSON: Mr. Tapuskovic.

2 MR. TAPUSKOVIC: [Interpretation] Your Honours, shall we, too, be

3 given an opportunity to deal with witnesses who have been examined here?

4 Isn't that a little out of line? We are discussing matters of principle,

5 and now we find Mr. Whiting dealing with evidence so far given in this

6 trial. This sounds very much like a closing argument. I think what we

7 are dealing with here is a matter of principle, and we can't go into

8 evidence given by witnesses before this Trial Chamber, because if we start

9 down that path, I think I might, myself, contribute to that by listing

10 quite a few things.

11 JUDGE ROBINSON: Oh, yes, and you could be quite entitled to do

12 that. I mean it's applying the principles, the law, to the factual

13 situation. I don't see anything improper about that, and you are entitled

14 to do that as well.

15 But I was going to ask Mr. Whiting, in the case of an

16 indiscriminate or indirect attack, I mean, how can you come to that

17 conclusion without the application of a legal principle, which is derived

18 from international humanitarian law?

19 MR. WHITING: Because it's purely a factual description. To say

20 something -- it is -- it's a -- it's just an adjective which can be used

21 outside this courtroom, outside of international law. It's used -- look

22 at example -- at Exhibits P18 and P19. These are reports at the time made

23 by UNPROFOR, made by non-lawyers. Remember, Mr. Harland said he's not a

24 lawyer. He said that at page 359 of the transcript. He's not a lawyer.

25 He's just saying that the attack was indiscriminate, meaning that it was

Page 1907

1 not aimed at a certain target but was just spraying the city.

2 JUDGE ROBINSON: The problem I have with that is that there would

3 hardly be anything left that would properly be described as a legal

4 characterisation.

5 MR. WHITING: Well, Your Honour, that is a -- that is a problem

6 which is -- that is what the law is, Your Honour, I'm afraid. The -- I

7 agree, the category of purely legal -- essentially legal characterisations

8 or purely legal characterisations is quite narrow, and that you'll see in

9 looking at the Karemera decision, the Appeals Chamber decision in

10 Karemera. It's quite narrow. If widespread or systematic is a factual

11 characterisation, if genocide is a factual characterisation, then I agree,

12 it is quite narrow. But that is what the law is.

13 JUDGE ROBINSON: But in principle should it be narrow? Because it

14 affects fundamentally the rights of the accused. These are facts of which

15 judicial notice will be taken, meaning that you will have evidence --

16 meaning, rather, that the Prosecution does not have to lead evidence. It

17 raises a rebuttable presumption which affects the burden of proof. I

18 mean, is it proper to devise a system in such circumstances in which a

19 category of essentially legal conclusions is so narrow? Because

20 ultimately it will work against the interests of the accused.

21 MR. WHITING: Well, Your Honour, for -- I'd say -- make a number

22 of responses to Your Honour.

23 The first is that, in our view, it does not affect the burden of

24 proof. The burden of proof remains the same and it remains on the

25 Prosecution. It affects only the presentation of the evidence.

Page 1908

1 The second is that --

2 JUDGE ROBINSON: I mean, you're correct if by that you mean that

3 it doesn't affect the ultimate -- the legal burden of proof. That's true.

4 That remains under the Prosecution throughout the case. But on the

5 particular -- on the particular piece of evidence to which it relates, if

6 the Defence does not rebut it, the Chamber is entitled to draw a

7 conclusion in favour of the evidence presented. That's why it is called

8 rebuttable.

9 MR. WHITING: Right. But that's precisely the same as if we led

10 the evidence, the same would be true. If we led the evidence live and the

11 Defence did not rebut it, the same result would occur.

12 JUDGE ROBINSON: Well, not -- I don't agree. I don't agree,

13 because a situation in which there is a rebuttable presumption in relation

14 to a particular fact is quite distinct, in my view, from a situation in

15 which evidence is led by the Prosecution on a particular fact.

16 MR. WHITING: I think that's a fair point, Your Honour. And I

17 think, actually, perhaps without knowing it, we're moving slowly into the

18 second question, because the -- the reason -- and let me just try and

19 finish responding to Your Honour's question about is this a fair system or

20 should it be narrow.

21 The first response is that this has been decided. It is narrow.

22 The Appeals Chamber has decided it, and we have to be guided by that.

23 JUDGE ROBINSON: The Appeals Chamber didn't decide that it is

24 narrow. That is your conclusion, or mine.

25 MR. WHITING: And if that conclusion is incorrect, then that

Page 1909

1 conclusion is incorrect. But I'm just base -- that's my characterisation

2 based on the findings that are made. And I think that if the facts that

3 we propose are not -- are the same type as to the facts that were accepted

4 by Karemera, then we have to be guided by that.

5 And the second point is I do think, Your Honour, that it is a fair

6 system, because there are two other critical protections at play here and

7 cannot -- and we can't separate this out because there are two other

8 critical protections.

9 The first is that these adjudicated facts do not come easily.

10 They are adjudicated; there's been a trial; they've been disputed; the

11 facts have been tested; there has been cross-examination; they've been

12 found by the Trial Chamber; they've been upheld by an Appeals Chamber.

13 That gives the facts a certain amount of weight; they don't just come out

14 of the air.

15 The second point, and this is why I say that it moves into our

16 second question, is that the facts cannot be about the accused, cannot be

17 about the accused, and you cannot rely on these facts to convict -- solely

18 on these facts to convict the accused, and they cannot be about the

19 accused. So that is the second protection.

20 So for those reasons I do think that it is appropriate for the

21 category to be narrow, if that's the correct word to choose, or whatever

22 the appropriate word is following from the Karemera decision. I do think

23 that the Karemera decision is correctly decided, in other words.

24 JUDGE ROBINSON: Yes, of course, we have to follow it. The

25 question is what it means.

Page 1910

1 MR. WHITING: Correct. And I think if you -- if Your Honours look

2 at the characterisations in that case, compare them to our case, and look

3 at the fact that in our case the terms that have been questioned by the

4 Trial Chamber are -- describe factual situations, civilians, military,

5 indiscriminate attack, indirect attack, and facts about which

6 laywitnesses, non-lawyers, have given you evidence; and if these were

7 facts that were not facts but were of essentially legal nature, I wouldn't

8 expect that it would be possible for witnesses to come in here and testify

9 about it.

10 They could not come in here and testify to Your Honours that the

11 attack was unlawful. Your Honours would properly stop them and say,

12 "that's for us to decide." But they have come in here and said, witness

13 after witness has come in here and said, "they were civilians, they were

14 military, the attacks were indirect, were indiscriminate" And that's

15 because those describe factual situations.

16 Now, I know Your Honours have set time limits so I'm prepared to

17 move to the second question, if I may.


19 MR. WHITING: The second question, Your Honours, in our view, it's

20 not an issue in this case for a number of reasons. And the first

21 reason -- the first reason is that the balance between the purposes of

22 Rule 94(B) and the rights of the accused has already been struck by the

23 Karemera decision, and it is this balance that is the basis for the

24 distinction that is made in Karemera between facts which go to the acts,

25 conduct, or mental state of the accused and all other facts. And Karemera

Page 1911

1 bears a close reading to reach this conclusion.

2 If you focus to paragraphs 47 to 52 of Karemera, paragraph 47 says

3 that "In balancing the rights of the accused, including the right of

4 cross-examination, versus the purposes of Rules 94(A) and 94(B)," the

5 first point is that adjudicated facts cannot be the sole basis for

6 conviction. That's the starting point. I mean, that's not really in

7 dispute.

8 The Appeal Chamber then goes on and says, Okay, so that's clearly

9 off the table. It cannot be a sufficient basis in and of itself for a

10 conviction. The question, then, is: Where is the line? Where is the

11 line between facts which can be admitted and those which cannot be

12 admitted?

13 Paragraph 50 is important, and I'm going to quote:

14 "Notwithstanding this point, there is nonetheless reason for

15 caution in allowing judicial notice under Rule 94(B) of facts that are

16 central to the criminal responsibility of the accused, for ordinarily in

17 criminal cases the burden of production and persuasion are on the

18 Prosecution. Although the latter always remains on the Prosecution, even

19 shifting the former has significant implications for the accused's

20 procedural rights, in particular, his right to hear and confront the

21 witnesses against him."

22 To pause for a moment, the Appeals Chamber is saying the issue

23 here is about the accused's procedural rights and his rights to confront

24 the evidence.

25 They go on: "The Appeals Chamber considers that as a result," in

Page 1912

1 other words, as a result of this concern about balancing the purposes of

2 the rule versus the procedural rights of the accused, "as a result, an

3 exclusion for judicial notice under Rule 94(B) is appropriate but one

4 narrower than that adopted by the Trial Chamber. Judicial notice should

5 not be taken of adjudicated facts relating to the acts, conduct, and

6 mental state of the accused."

7 So -- and then in paragraph 51, the Appeals Chamber goes on and

8 makes the point again, it says: "This interpretation," in other words,

9 this rule that the facts cannot go to the acts, conduct, or mental state

10 of the accused, "strikes a balance between the procedural rights of the

11 accused and the interest of expediency that is consistent with the one

12 expressly struck in Rule 92 bis."

13 So the Court has struck the balance, Your Honours, between the

14 procedural rights of the accused, including the right to confrontation and

15 to test the evidence, and the purposes of Rule 94(A) and Rule 94(B), in

16 particular 94(B). And where the balance is struck is excluding evidence

17 which goes to the acts, conduct, and mental state of the accused.

18 Just as an aside, in order to get clarity on what that means, the

19 Trial Chamber -- I'm sorry, the Appeals Chamber cites, then, to paragraphs

20 10 and 11 of the Galic appeal decision on an interlocutory appeal, dated 7

21 June 2002. And those paragraphs 10 and 11 of Galic are also instructive.

22 They refer to 92 bis, but the Appeals Chamber is saying that the

23 situations are the same, 92 bis and 94(B). The test is the same. And in

24 paragraphs 10 and 11 of the Galic appeals interlocutory decision, the

25 Appeals Chamber makes it clear what it means when it says "facts that go

Page 1913

1 to the acts, conduct, and mental state of the accused." It makes that

2 point very clear.

3 JUDGE ROBINSON: In our case, one may say that a number of acts do

4 not go to the acts and conduct of the accused, but what is meant by

5 "mental state" if the facts are to be relied upon to prove that the

6 accused knew, should have known, or was put on notice that crimes had

7 been, or were about to be, committed? Is that not something going to his

8 mental state?

9 MR. WHITING: No. No, Your Honour, it is not. And the Karemera

10 decision, in particular the reference to paragraphs 10 and 11 of the Galic

11 decision, make that absolutely clear. They say that this -- that it is

12 permissible to admit facts of -- for example, facts of subordinates, and

13 then argue that because of the position of the accused, he must have known

14 of what was happening. That is permissible. That is explicitly set out.

15 Paragraph 11 of the Appeals Chamber decision in Galic says: "The

16 conduct of an accused person necessarily includes his relevant state of

17 mind, so that a written statement which goes to proof of any act or

18 conduct of the accused upon which the Prosecution relies to establish that

19 state of mind is not admissible under Rule 92 bis," and of course would

20 not be admissible under Rule 94(B) either.

21 "In order to establish that state of mind, however, the

22 Prosecution may rely upon the acts and conduct of others which have been

23 proved by Rule 92 bis statements." The same would apply with 94(B). "An

24 easy example would be proof in relation to Article 5 of the Tribunal's

25 Statute of the knowledge by the accused, that his acts fit into a pattern

Page 1914

1 of wide-spread or systematic attacks directed against a civilian

2 population." And here's the kicker: "Such knowledge may be inferred from

3 evidence of such a pattern of attacks proved by Rule 92 bis statements,

4 "or Rule 94 B, "that he must have known that his own acts," proved by

5 oral evidence, "fitted into that pattern."

6 The second point, Your Honours, on this issue -- in other words,

7 the first point is that we believe that Karemera has already struck this

8 balance that has been -- this issue that has been identified by the Trial

9 Chamber between the rights of the accused, including the right to

10 cross-examine, and the purposes of Rule 94(B) and that is the basis for

11 the distinction, and none of the facts that we propose go to the acts,

12 conduct, or mental state of the accused. None of them.

13 The second point, Your Honours, is that in this case there is no

14 danger to the rights of the accused, including the right to cross-examine,

15 because -- and this is why I started the argument the way I did, because

16 the Defence has taken the position that the proposed facts are irrelevant,

17 that they are irrelevant. In other words, in some -- the Defence has

18 really taken the opposite position of the position that has been inquired

19 about by the Trial Chamber, which has -- the question suggests that the

20 issues are so important that the Defence must have the opportunity to

21 cross-examine and test the evidence.

22 But the Defence has taken the position that it's irrelevant;

23 forget about it. So there is no need to -- there is no danger, because

24 they're not interested in those issues. They're not important for their

25 case, for their defence. So there's no danger. There's no need for them,

Page 1915

1 in particular, to test these facts.

2 The third point, Your Honours, is that the facts that we propose

3 to admit into evidence, while relevant, while important, for the reasons

4 that I have set forth, are nonetheless one step removed from the crime

5 base of this case. And to make the point, I've actually made a chart

6 which I'd like to offer to Your Honours and maybe it could be placed on

7 the ELMO. It's a simple chart to make what I think is a simple point.

8 Your Honours, under the Appeals Chamber decision in Karemera

9 [French on English channel].

10 We're getting French on the English channel.

11 Under the decision in Karemera, and I've quoted there from

12 paragraph 52, which is kind of the conclusion of the discussion from

13 paragraphs 47 to 52, the facts which go to the accused box number 1 can

14 clearly not be admitted under Rule 94(B), which is why it's red. Facts,

15 however, in box 2, the crime base, can be admitted under Rule 94(B). That

16 is the decision in Karemera.

17 What we are proposing is one step removed, and this is important

18 for the rights of the accused, and it's the facts in box number 3. And

19 I've already set forth why those facts are relevant to our case. They are

20 alleged in the indictment. They are important for the establishment of

21 the crime, but they are nonetheless one step removed. And, for example,

22 if we -- if the facts were admitted and we proved the position of the

23 accused, we could not argue a conviction on that basis alone. We would

24 still have to prove the facts in box number 2. Whereas if we admitted box

25 number 2 under 94(B) and then proved by oral evidence the facts in box

Page 1916

1 number 1, that could be a sufficient basis for a conviction.

2 Now, our argument is that if the facts in box number 2 can be

3 admitted by Rule 94(B), then it necessarily follows - it necessarily

4 follows - that the facts in box number 3 can be admitted under Rule 94(B),

5 consistent with the rights of the accused.

6 And the contrary is also true, that if there were a finding that

7 the facts in number 3 could not be admitted because the accused had the

8 right to cross-examine or had the right to test them, then I cannot

9 imagine a situation - I cannot imagine a situation - where you could get

10 facts in box number 2 admitted, because they are closer, they are more

11 essential, more important, to the accused.

12 So, in other words, to give Karemera any meaning, to give Rule

13 94(B) any force - and that is the whole point of Karemera is that it's

14 giving -- it says specifically 94(B) should not be rendered a dead

15 letter - to give 94(B) any meaning, the facts in box number 3 have to be

16 admissible.

17 And I would ask, Your Honours, if this could be made either an

18 exhibit or made a filing, just so it's part of the record, this chart;

19 otherwise, it's going to be hard to follow on the record later what I'm

20 talking about with respect to box 1, 2, and 3.

21 Two final points to make on this issue, Your Honours. One I've

22 already made but I'll reiterate is that the facts from the Galic decision,

23 the facts that we seek to admit, have been tested in a trial by Judges, by

24 a Defence. They've been cross-examined; they've been found by the Trial

25 Chamber; they've been found by the Appeals Chamber. Now, when the facts

Page 1917

1 are about the accused, it's not sufficient that they've been tested,

2 because the Appeals Chamber in Karemera said that there could be -- that

3 the prior accused might have interests to blame a subsequent accused.

4 It's not good enough. In other words, this accused in our case

5 should have the right to test facts that are about him, but that right

6 does not necessarily -- does not necessarily have that that right with

7 respect to facts which are not about him and which have been tested

8 already. And in this case, they've been tested by an accused who had all

9 the same interests, all the same perspective that this accused had.

10 JUDGE ROBINSON: But they are being used to establish his

11 responsibility under 7.3.

12 MR. WHITING: Not under 7.3, more under 7.1. Perhaps under 7.3,

13 you're right, Your Honour. That's true --

14 JUDGE ROBINSON: So I don't know how it can be said not to affect

15 the accused.

16 MR. WHITING: I'm sorry, Your Honour, I was not clear. What I

17 meant is that they are -- I was trying to rely on the Karemera

18 distinction. They are not facts which are about the acts, conduct, or

19 mental state of the accused. It is true that they affect the accused;

20 otherwise, they would not be relevant.

21 And then the last point, Your Honours, is the point which you

22 yourself have identified which is that these facts -- an additional

23 protection is that these facts can be rebutted.

24 In conclusion, with respect to both of your questions, Your

25 Honours, it's our view that the Karemera Appeals Chamber decision provides

Page 1918

1 guidance on those issues and that following the Karemera Appeals Chamber

2 decision, the facts that we have proposed should be admitted for the

3 purposes that we have proposed them, and that to not admit those facts

4 would be, in our view, to render 94(B), really, a dead letter. And the

5 only thing that could then come in under Rule 94(B) is background facts,

6 like the date that Bosnia-Herzegovina was recognised, things like that,

7 which are more usually the subject of agreed facts and which are not

8 really the purpose of Rule 94(B).

9 In order to give purpose and to give force to Rule 94(B), which is

10 what the Karemera Appeals Decision says we must do, these facts should be

11 admitted, Your Honours. Thank you.

12 JUDGE ROBINSON: Thank you.

13 JUDGE HARHOFF: Can I just try to apply, in practice, some of your

14 arguments, because I'm not quite convinced of what is the correct

15 interpretation of the law as it is -- as it appears at this moment. I

16 mean, what I'm saying is that I believe that there is probably still room

17 for some developments in the law and in the case law practice of this

18 Tribunal.

19 Let's have a look, just for instance, at the last of your proposed

20 adjudicated facts, fact number 181, and tell me, Mr. Prosecutor, how this

21 is not a legal finding and does not infringe in any way on the rights of

22 the accused and the protection of justice. The fact reads, and I quote,

23 "The military attacks on civilians in ABiH-held areas of Sarajevo,

24 between September 1992 and August 1994, carried out with a specific

25 purpose to spread terror among that civilian population constituted a

Page 1919

1 campaign of sniping and shelling against civilians."

2 Now, it would seem to me that if you are asking the Chamber to

3 accept this fact and establish that this may come into evidence with the

4 force of judicial notice, then you're asking us to accept that the sniping

5 and shelling that took place between 1992 and 1994 was carried out with

6 the specific purpose, to spread terror, and thus constituted a crime, I

7 guess, against the civilian population, and that it also constituted a

8 campaign.

9 Now, this would seem to be asking us to accept without further

10 proof the allegations that you are holding against the accused; namely,

11 that there was a campaign of shelling and sniping and, indirectly, a

12 campaign of terror. Now, this is what you're asking us to accept with a

13 force of judicial notice, and I just don't know if that would be correct.

14 It would seem to me to imply that the accused, if this fact were to be

15 admitted as judicial notice, that the accused would be faced with a very

16 burdensome fact for which he had not himself seen the proof in the

17 evidence and on which he had not had the chance to cross-examine.

18 MR. WHITING: Thank you for your question, Your Honour. I

19 disagree, however, for a number of reasons.

20 The first reason is that the -- I would submit that -- and, again,

21 the line is not easy to draw, but I would submit that the -- what is set

22 out here is a factual -- ultimately is a factual description. That's the

23 first point. That the attacks were -- had a purpose and that there was a

24 campaign. That describes a factual situation.

25 The second point is that we could not hold these facts --

Page 1920

1 JUDGE HARHOFF: Excuse me, counsel, because to say that an action

2 had a specific purpose is not just a factual observation; it would seem to

3 me it would require the intent of the perpetrator, an assessment of why

4 was this done, and under which conditions. It's more than just a fact.

5 You're looking into the mind of a person and you're telling us, Oh, yes,

6 he or she had the purpose to do this or do that. That's a very

7 far-reaching fact, I'd say.

8 MR. WHITING: Your Honour, again, we have to be guided by

9 Karemera, but that is a factual inquiry. What Your Honour just described

10 is a factual inquiry, looking into the mind of the perpetrator. Now, of

11 course, it has legal consequences and there are legal terms that are used,

12 but it is ultimately a factual inquiry. What was the purpose of the

13 perpetrator? Why did he do it? And you'll have witnesses that come in

14 and say, well, he did it for this reason, he did it for that reason, or

15 no, I didn't do it for that reason. The witnesses testify about the

16 purposes of the attack. They testify about the fact that there was a

17 campaign. And they can testify about it because they are factual

18 inquiries.

19 JUDGE ROBINSON: I don't think witnesses normally testify about

20 the purpose, because we -- I mean, they testify about the attack, and

21 submissions are then made by the parties as to the inference to be drawn

22 as to the purpose. But if a witness were to testify that the purpose of

23 the attack was to do so and so, counsel on the other side might object and

24 the objection might very well be upheld.

25 MR. WHITING: Your Honour, I have to disagree with that. Your

Page 1921

1 Honour, you are absolutely correct that most of the time purpose or intent

2 is inferred, and that -- but that is only because of the nature of the

3 evidence we have before us. Oftentimes, we do not have direct evidence

4 about intent or purpose because we don't have somebody who spoke to the

5 perpetrator.

6 But if we had -- if we had somebody who was standing next to the

7 perpetrator at the time of an attack and who came in here and testified

8 that the perpetrator said, "I am committing this attack because of this

9 reason," that evidence would certainly be admissible and would be relevant

10 and would be factual. It's just that we usually don't have that kind of

11 evidence. We've gotten used to inferring intent from the consequences,

12 from the ongoing pattern. But if we had evidence of direct intent, and

13 when we do, for example, through statements of the accused or -- not the

14 accused, the perpetrator or a diary of the perpetrator, then that evidence

15 would certainly be admissible.

16 JUDGE HARHOFF: Suppose the perpetrator will say, "Well, yes, I

17 did this but it wasn't for the purpose of spreading terror. No, it was

18 for the purpose of responding to attacks."

19 MR. WHITING: That evidence would certainly be admissible, and we

20 often get that kind of evidence. In other words, the Prosecution often

21 brings evidence, saying -- Your Honour, you're shaking your head --

22 JUDGE HARHOFF: Because you're arguing beyond the point. My point

23 is that if there are alternative interpretations of why the perpetrator

24 did what he did, then it would seem to me to be difficult to accept that

25 it is only the one interpretation that should apply and not the other.

Page 1922

1 MR. WHITING: Well, that's a rule about inferences and -- and

2 there are rules about when you can draw inferences. And if there's more

3 than one inference available and one points to guilt and one points to not

4 guilt, then generally the rule is that you cannot draw the inference of

5 guilt. That's correct.

6 But the question here is -- the question here is whether this

7 evidence is factual or legal, and my point is that evidence with respect

8 to purpose or intent, whether it's direct evidence or circumstantial

9 evidence, is factual and admissible, and we have witnesses who testify

10 about it. It may have a legal consequence, but those are factual issues.

11 What is in the mind of the perpetrator? That's a factual inquiry.

12 Now, the second point, Your Honour, is that we -- is that these

13 facts are not about the time period of the accused. They're 1992 to 1994.

14 So we could not prove these facts and draw any conclusions about the guilt

15 of the accused, because they're not the right time period. And that's the

16 point of the chart. These facts are not from this box; they're from this

17 box. They're one step removed, which is further protection for the

18 accused.

19 The third point, Your Honour, the third point is that we could not

20 draw any conclusions without presenting linkage evidence by evidence that

21 can be tested, by oral evidence or whatever evidence -- however we admit

22 it, of the accused. And that's the whole point of Karemera is that the

23 crime base can be -- that can be judicially noticed under 94(B). It's the

24 linkage evidence connecting it to the accused that still has to be proven

25 in the trial.

Page 1923

1 And the final point, Your Honour, is, again, the accused himself

2 has taken the position that these facts from 1992 to 1994 are irrelevant,

3 so I can't see where, then, the danger is to the accused. But the most --

4 but the most important point is that number --

5 JUDGE ROBINSON: I wouldn't attach too much importance to that.

6 That's a sort of procedural point. It is still for the Trial Chamber to

7 determine whether there is a proper basis for judicial notice.

8 MR. WHITING: Yes, Your Honour, I agree with that, but again I

9 think that has to go done, to some extent, in the context -- not in a

10 vacuum, but in the context of the defence that has been chosen by this

11 Defence, by this accused. And I think that is a right of the accused, to

12 choose his defence, and there should be deference granted to that.

13 But the most important point, Your Honours, is that under Karemera

14 that these sorts that are not -- that are about the crimes, that are about

15 the crimes, can be admitted by judicial notice. And here more so than in

16 Karemera, because, as I said, they're about a different time period.

17 About his time period, box number 2, no judicial notice; we're proving it

18 all in the trial. It's box number 3 that we're seeking to admit.

19 Thank you.

20 JUDGE ROBINSON: I thank you.

21 Mr. Tapuskovic.

22 MR. TAPUSKOVIC: [Interpretation] Your Honours, as a lawyer, and I

23 have been one for 40 years now, I have never found myself in a situation

24 more difficult than this one. Having heard what Mr. Whiting has said, I

25 am not quite sure that I can respond fully. I will try to spend half as

Page 1924

1 much time as Mr. Whiting did and to raise several matters.

2 If Mr. Whiting wishes to propose this as evidence, please note

3 this: Mr. Whiting is oversimplifying matters. He is trying to illustrate

4 certain matters with a chart such as this one. My assistant has drawn my

5 attention to it because I do not speak English. First, he has to prove

6 this arrow connecting the two green squares and only then can he tender

7 this into evidence. My learned friend, Mr. Whiting, has tendered this a

8 moment ago, if my understanding is correct. I may be mistaken, but it

9 seems to me that he tendered this into evidence as an exhibit. That's

10 point number 1.

11 Secondly, as counsel, together with my entire team, I find myself

12 in a very difficult situation where I have to deal with these topical

13 matters without, at the same time, compromising the case that I wish to

14 present before you on behalf of the accused. It will be very difficult

15 for me to address these matters. I hope that over the break I will have

16 time enough to put my submissions together.

17 But let me tell this at once, and with full certainty: In the

18 period whilst he was in command of the Sarajevo-Romanija Corps, General

19 Dragomir Milosevic and me, as his counsel, will not bring before this

20 Tribunal a single witness who already testified in other cases in the past

21 years. What I will do is try and have certain documents dating from that

22 period through some of our witnesses into evidence. I will do that.

23 However, I will not be using a single witness who testified back then, and

24 I will not resort to any rules allowing me to do this. And I'm speaking

25 of international and national witnesses alike.

Page 1925

1 Another matter. I have to say, and this is no flattery, I do

2 trust this Trial Chamber greatly, and I do trust that they will deal with

3 these matters properly. The accused who stands here before you will never

4 try to shift any blame onto anyone else. Toward the end of the day today,

5 I will propose to show you a map that will best illustrate to you the

6 truthfulness of some matters that I will say. Mr. Whiting touched upon

7 these matters, but I assure you that the accused will not shift any blame,

8 if any, of course, onto anyone else.

9 And I could not believe my ears when Mr. Whiting theatrically

10 gestured, motioning to the head, and he meant the head of the accused.

11 And I'm telling you that the criminal responsibility has its individual

12 side, which means that unless what was in his head at the time of these

13 events is proven, then the whole charge will not stand. We have to look

14 at the -- what we could do is look at the adjudicated facts from Galic and

15 then just agree on matters and leave the courtroom. This is something

16 that Mr. Whiting seems to have suggested today.

17 I, on my part, after working with my team, am prepared to present

18 you our positions with regard to the issues raised by the Trial Chamber

19 this morning. As the break is nearing, I will only touch upon several

20 other matters.

21 Mr. Whiting said something else that I could hardly believe. I

22 suppose that the interpreters will have difficulty in interpreting what I

23 have to say. He said, if I understand correctly, that sometimes it is

24 important to reduce the judicial system or to narrow it down. I may be

25 mistaken; maybe I misunderstood. But he said that sometimes it is

Page 1926

1 necessary to narrow down the judicial system. This can never be done in

2 the context of someone's criminal responsibility being determined. To

3 draw parallels between this particular case and some other cases that were

4 qualified differently cannot be done.

5 Mr. Whiting spent a great deal of time talking about matters that

6 are incomparable, absolutely incomparable, in the legal sense. The

7 matters that we'll be dealing with and the Trial Chamber will be dealing

8 with in this case cannot be compared with the matters that Mr. Whiting

9 talked about.

10 I will be quite brief in my submissions after the break, when I

11 look at my notes concerning what Mr. Whiting said.

12 Mr. Whiting said that the Defence challenged only two facts, or,

13 rather, only one fact, which is "carried out a long-term campaign of

14 shelling and sniping." Let me just find this in my notes. Facts from

15 paragraph -- let me just find the number. Facts 54 and 55. If I'm

16 mistaken, it doesn't really matter --

17 JUDGE ROBINSON: He said that the Defence challenged one set of

18 facts, those from proposed facts from 54 to 181. Not one fact but one set

19 comprising those from 54 to 181.

20 MR. TAPUSKOVIC: [Interpretation] Your Honours, let me just

21 emphasise this: We spoke about facts 54 and 55 where we said that this

22 was a qualification. In challenging this characterisation, we actually

23 challenged all the facts. That is the gist of our position that I orally

24 presented at the time, and we weren't discussing these matters at all.

25 In the indictment, in item 1, that's the most important part of

Page 1927

1 the indictment --

2 JUDGE ROBINSON: Those facts which were challenged as being

3 definitions, did you?

4 MR. WHITING: I meant to. Those two, 54 and 55, we would not

5 pursue. I think they could be called legal clarifications or definitions,

6 and I'm happy to drop those.

7 JUDGE ROBINSON: Thanks. I think that's a concession well made.

8 He's not pursuing those facts, 54 to 55.

9 I believe we'll take the break now. We'll take the break now for

10 20 minutes.

11 --- Recess taken at 10.28 a.m.

12 --- On resuming at 10.50 a.m.

13 JUDGE ROBINSON: Yes, Mr. Tapuskovic.

14 MR. TAPUSKOVIC: [Interpretation] Your Honours, the break has been

15 very helpful to me. My idea is to give up my probably meaningless polemic

16 with the esteemed Prosecutor, Mr. Whiting, and that is precisely why I'll

17 be moving straight to the questions that you raised while addressing both

18 parties, the questions that deserve answers.

19 What our team has done is to define a number of positions, and I

20 will read this slowly. This could be summarised in the form of several

21 decisive conditions. I really believe that the formal conditions for the

22 application of Rule 94(B) have been met. We do, however, also believe

23 that those facts are not relevant and are in no way helpful to these

24 proceedings. We also believe that the price of their application might be

25 to prejudice the rights of the accused.

Page 1928

1 In addition to that, if the Trial Chamber believes that the

2 conditions for Rule 94(B) have been met, especially as concerns the

3 relevance of facts to the case in hand, we believe that such terms as

4 "civilians" and "indiscriminate attacks" or "legitimacy of targets"

5 constitute legal matters and not factual matters. The objective of 94(B),

6 Rule 94(B), is to expedite proceedings as a whole, to speed up the trial,

7 if you like. Nevertheless, this only applies under the condition that the

8 right of the accused to a fair defence is not prejudiced, and the same

9 goes for the right of the Defence team to properly cross-examine

10 witnesses.

11 It is the position of this Defence that these facts are

12 inaccurate, even if they have been confirmed in the Galic case, and

13 therefore cannot be used in the present trial of General Dragomir

14 Milosevic.

15 In their motion dated the 25th of January, the OTP are themselves

16 in contradiction, in practical terms. In their motion dated the 18th of

17 December, 2006, they quote the relevant jurisprudence accurately, the

18 jurisprudence to do with the application of Rule 94(B). They provide the

19 criteria for the application of that particular rule, and, among other

20 things, they state as follows: "These facts do not directly or

21 incorrectly prove the criminal responsibility of the accused, his

22 behaviour, or his acts, or his mens rea."

23 In their motion dated the 25th of January, they say that although

24 General Milosevic does not stand indicted in relation to the period before

25 he became the commander of the Sarajevo-Romanija Corps in August 1994, it

Page 1929

1 still cannot be said that he was not aware of the shelling and sniping

2 campaign against the civilian population that was in progress throughout

3 that period, especially in view of the positions in which he was incumbent

4 within the SRK in August -- prior to August 1994.

5 Just one fact for the benefit of the Chamber. Two days before he

6 took up his position, or, rather, four days, on the 14th of August, 1994,

7 regardless of everything that is addressed here as a possibility, he

8 immediately signed an Anti-Sniping Agreement thereby, at least in his own

9 head, displaying a different attitude towards the issues at that time,

10 because this same agreement had not been signed for a long time simply

11 because nobody was able to get it signed. There were several months of

12 truce with regard to sniping following this agreement, which clearly shows

13 his mens rea and his personal attitude towards the problems that were

14 happening at the time.

15 If I may be excused this slight digression, I would like to wrap

16 up in the following way: The only conclusion that we can possibly reach

17 is that the OTP have here proposed a twisted application, a totally

18 twisted application of the relevant jurisprudence, which, among other

19 things, they managed to misquote in one of their motions. The OTP have

20 been addressing certain issues with regard to the evidence so far in this

21 trial.

22 May I be allowed to say a couple of things based on what we have

23 heard from witnesses so far. I will only take five or six minutes more to

24 complete my submissions.

25 I'm sure the Trial Chamber remembers we had the witness

Page 1930

1 Mr. Nicolai, who was the number two man of NATO at his time on duty. The

2 pages are 1057, lines 10 through 12. My question was: [as read]

3 "Yesterday, you spoke about the proportion or the fact that at

4 least three shells had to be fired in order to neutralise a target, such

5 as a moving vehicle that is firing. What would a proportionate reaction

6 would be? Would it be to fire several shells when someone is firing

7 randomly? It is necessary for the other party to be effective to use a

8 large number of shells in order to crush the enemy's operation. Can that

9 be considered an appropriate answer?"

10 And then General Nicolai goes on to say: "In my opinion, the

11 criterion here is not the number of shells. The criterion is the position

12 being targeted. As long as the firing is against the position from which

13 the shells were fired, that would be a justified response."

14 1058, lines 1 through 2: "But you said yesterday that it took

15 several shells to make sure the target was hit. You can't just fire one

16 shell and still be sure a target was hit, unless, of course, you fire

17 randomly. Did I understand your reply, sir? Yes; am I right?"

18 And the reply, "Yes. You understood me correctly? The proportion

19 is always there when a significant number of shells were fired against a

20 position that the original firing had come from."

21 That's the first thing. And something else, too.

22 General Nicolai, who is a well-regarded NATO officers, said before

23 this Chamber that every young man, every boy in Sarajevo was, in fact,

24 carrying a weapon at the time. And now I'm asking myself and you, Your

25 Honours, has a single sniping incident been proved beyond a reasonable

Page 1931

1 doubt so far? You heard from General Fraser who said that a sniper always

2 hits when aiming. For the most part, what we had here was BH army

3 officers firing at their own people, fragmentation bullets being used,

4 where a single fragmentation bullet injures several persons. Another

5 thing we often encountered were stray bullets.

6 That wraps up my submissions, Your Honour, and I have nothing to

7 add, unless the Chamber has questions for me. After that, I would like to

8 make an application. Just to make the Court's work, I will be tendering

9 this later through a witness. It is important for me to show that

10 document now so that in closed session I might be able to tell you what

11 I'm supposed to do tomorrow. If I had to explain that, I wouldn't have to

12 explain the motion regarding your decision, some things. I wish to show a

13 map --

14 JUDGE ROBINSON: What is it -- you're seeking to tender something

15 now in relation to your submissions?

16 MR. TAPUSKOVIC: [Interpretation] Well, in a way, it's to do with

17 the arguments discussed today.


19 MR. TAPUSKOVIC: [Interpretation] And especially to do with the

20 things that --

21 JUDGE ROBINSON: The practice that I'm accustomed to from my

22 experience is not to admit documents such as the one submitted by the

23 Prosecution as an exhibit but to treat it as an aide-memoire, and that is

24 what I propose to do.

25 MR. TAPUSKOVIC: [Interpretation] Yes. Your Honours, what I'm

Page 1932

1 trying to show you now -- the reason I'm showing you this is so you can

2 help the Defence to maybe half our cross-examinations, the totality of our

3 cross-examinations. On the other hand, I would like to explain something

4 in closed session which is equally important. This is the copy, the

5 original, of a document which I received from the archive of the army of

6 the army of Republika Srpska.

7 I'm sure that the Prosecutor has the same map but they have not

8 been using it so far. This is a decision by Dragomir Milosevic which was

9 approved by General Ratko Mladic, and this decision clearly shows what I'm

10 trying to point out here, a decision taken by ...

11 [Trial Chamber confers]

12 JUDGE ROBINSON: Mr. Tapuskovic, I suggest that the tendering map

13 be left until later when we are dealing with the adducing of evidence and

14 I will consider that later, but right now I want to close off the argument

15 on judicial notice.

16 MR. TAPUSKOVIC: [Interpretation] Your Honour, that precisely is

17 the reason I'm doing this, to make your ruling more proper. I don't wish

18 to tire you. I can't explain this. What you asked me to do by tomorrow,

19 I'd like to do that in closed session. It's a map. It's a map that I

20 might as well be tendering in two or three days. I really don't know.

21 I'll have to be tendering it, but I think it might be very helpful for you

22 to have a look.

23 JUDGE ROBINSON: Well, let me conclude the hearing on judicial

24 notice. Judge Harhoff has a question for you.

25 JUDGE HARHOFF: Just before we close, and I believe we should

Page 1933

1 close now, I would be grateful if counsel could explain to the Chamber

2 just how you would respond to the two questions that the Chamber put to

3 you; namely, where and how do you distinguish between factual findings and

4 findings of an essential legal nature, and how do you deal with the

5 relation between the purposes of Rule 94 and the interests of justice?

6 Could you kindly and briefly explain to us the positions that the

7 Defence has taken?

8 MR. TAPUSKOVIC: [Interpretation] Your Honour, Judge Harhoff, you

9 mentioned a while ago paragraph 181, and you asked the Prosecutor about

10 that. My position on all these paragraphs is the same. My position on

11 all the issues mentioned here, 1 through 181, the paragraph that you

12 mentioned a while ago, my position, as lead counsel for the Defence, as

13 well as my colleague, is just that: None of these facts can possibly have

14 any bearing on what occurred during General Dragomir Milosevic's time as

15 commander.

16 In my understanding, this is a different case altogether, in every

17 way, especially in terms of the time frame. There are issues that I can't

18 address at the present time, issues that I might be indicating throughout

19 our defence case.

20 JUDGE HARHOFF: So you would agree in the Prosecution's

21 characterisation of your submission as being, simply, "the facts are

22 irrelevant"?

23 MR. TAPUSKOVIC: [Interpretation] It is my belief that they are

24 irrelevant and that they should, in no way, trouble this Chamber. I don't

25 think the Chamber should be placing such things into the e-court system.

Page 1934

1 It is entirely irrelevant, especially in relation to what I have just

2 shared with you.

3 JUDGE MINDUA: [Interpretation] Mr. Tapuskovic, one little point.

4 I followed very closely what you said in answer to the Prosecutor's

5 submission, but do you believe that this Trial Chamber must use Rule 94(B)

6 or not, notably regarding the historical background. There are facts.

7 You know, when I read the Prosecutor's motion, for example, the Prosecutor

8 will be mentioning 1945; 1990; the SFRY which was made up of six

9 republics. I think this, you have already accepted this. So can this

10 Trial Chamber use this at least?

11 And then furthermore, later, later on, for item 44 in the

12 Prosecutor's motion, [In English] "After the JNA partially withdrew the

13 parliament of Republika Srpska on 12 May 1992, ordered the formation of

14 the Bosnian Serb army, VRS."

15 [Interpretation] So do you accept all this, or not. If so, you

16 cannot reject the Trial Chamber using Rule for a number of facts, because

17 there I don't follow you. I don't follow you in your oral submission. Is

18 it the whole process that is not relevant, or are you picking and choosing

19 some facts on an ad hoc basis?

20 MR. TAPUSKOVIC: [Interpretation] It's difficult at this time to

21 answer in a straightforward manner, but I'll do my best.

22 The historical circumstances and the general situation are not

23 really things that I'll be looking into to any great degree, in my case.

24 We need that perspective, needless to say; however, not done this way, not

25 done as presented in these facts.

Page 1935

1 My approach to these issues will be strictly limited, and I can't

2 accept them like this, as something that is generally relevant. I'll be

3 trying to show, especially in the early days of the clashes, some of the

4 facts have been erroneously ascertained. That's my understanding. I

5 might as well be wrong. These are issues to do with history.

6 I will be dealing with those, too, but to a very limited extent,

7 because the problem of what was happening in Sarajevo and around Sarajevo

8 at the time has precious little to do with the historical context. If

9 there is a general context to be dealt with, I will have to deal with it,

10 but certainly not in the way that was formulated in the final judgement.

11 JUDGE ROBINSON: All right. Thank you, Mr. Tapuskovic. We'll,

12 therefore, treat as an aide-memoire the document submitted by the

13 Prosecution. And do you have one to submit as an aide-memoire?

14 MR. TAPUSKOVIC: [Interpretation] It is the map, Your Honours,

15 because of your previous order to explain some things by tomorrow about

16 what you had previously ordered us. The map can be very useful for that

17 purpose. I'll be tendering that as an exhibit in one or two days,

18 perhaps.

19 JUDGE ROBINSON: In one or two days, yes.

20 Well, I'd just like to thank both parties for their submissions,

21 and the Chamber will take them into account in arriving at its decision on

22 this matter.

23 May I now ask Mr. Whiting, or the Prosecutor, to call his next

24 witness.

25 MR. TAPUSKOVIC: [Interpretation] I'm sorry to have to address you

Page 1936

1 again, Your Honours. I will not be able to provide a reply by tomorrow

2 unless you have seen this document, which has to do with the order that

3 you gave me. Can I do this in closed session, please?

4 JUDGE ROBINSON: Yes, closed session.

5 Private session. Do we need closed session or just private?

6 THE REGISTRAR: We're in private session, Your Honours.

7 [Private session]

8 (redacted)

9 (redacted)

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Page 1937











11 Pages 1937-1939 redacted. Private session.















Page 1940

1 (redacted)

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4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

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13 (redacted)

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15 (redacted)

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17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 [Open session]

22 JUDGE ROBINSON: Yes, Mr. Sachdeva.

23 MR. SACHDEVA: Good morning, Mr. President and Your Honours. May

24 I proceed?

25 JUDGE ROBINSON: Yes, you may proceed.

Page 1941

1 WITNESS: WITNESS W-54 [Resumed]

2 [Witness answered through interpreter]

3 Examination by Mr. Sachdeva: [Continued]

4 Q. Good morning, Witness.

5 A. Good morning.

6 Q. I trust that you are feeling better now?

7 A. I'm not in the best of health.

8 A. But it's better than it was before.

9 Q. Well, I don't plan to be very long with you today, and if you

10 could keep your answers brief, that would be of much help. Thank you.

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

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Page 1942











11 Pages 1942-1971 redacted.















Page 1972

1 (redacted)

2 JUDGE ROBINSON: Thank you.

3 Witness -- Ms. Isailovic, do you --

4 Witness, that concludes your evidence. Thank you for giving it,

5 and you may now leave.

6 THE WITNESS: [Interpretation] I thank you very, very much.

7 [Trial Chamber confers]

8 [The witness withdrew]

9 JUDGE ROBINSON: It's just been brought to my attention that none

10 of the statements of this witness have been admitted.

11 MS. ISAILOVIC: [Interpretation] Mr. President, in fact, I found

12 that out, so I have a list of documents for you. First, for Fraser, for

13 Witness Fraser, would you like me to do it now?


15 MS. ISAILOVIC: [Interpretation] So the statement of Mr. Fraser,

16 DD00-0522.

17 JUDGE ROBINSON: Yes, we admit it.

18 THE REGISTRAR: As Exhibit D52, Your Honours.

19 MS. ISAILOVIC: [Interpretation] Then, Your Honour, I showed to

20 Mr. Fraser order coming from Vahid Karavelic, DD00-0573.

21 JUDGE ROBINSON: Yes, it's admitted.

22 THE REGISTRAR: As Exhibit D53, Your Honours.

23 MS. ISAILOVIC: [Interpretation] And we have the statement of the

24 witness of today, DD00-0471.

25 JUDGE ROBINSON: Yes, we admit it.

Page 1973

1 THE REGISTRAR: Sorry, does counsel have a date for that

2 statement?

3 MS. ISAILOVIC: [Interpretation] 15 November 1995.

4 THE REGISTRAR: Your Honours, that will be admitted as Exhibit

5 D54.

6 MS. ISAILOVIC: [Interpretation] Then we have the statement of the

7 20th of May, 2006, DD00-0479.

8 JUDGE ROBINSON: Yes, admitted.

9 THE REGISTRAR: As Exhibit D55, Your Honours.

10 MS. ISAILOVIC: [Interpretation] And, lastly, the official report

11 of the investigation of the 22nd of November, 1994, DD00-0489.

12 JUDGE ROBINSON: Yes, Mr. Sachdeva.

13 MR. SACHDEVA: Mr. President, if these statements refer to the

14 previous witness, then they should be admitted under seal, since he was

15 protected, firstly.

16 And, secondly, I would just like to mention one thing. As

17 Mr. President and Your Honours will recall, before this witness gave his

18 evidence, Mr. Whiting explained that there had been a discrepancy and that

19 we had clarified certain matters in proofing, and there has been a note to

20 that effect disclosed to the Defence on the 5th of February, 2007.

21 Therefore, if learned counsel intends to have these statements admitted, I

22 would ask that this information report similarly be admitted into

23 evidence, under seal.

24 JUDGE ROBINSON: Let's deal with the first thing. You're saying

25 that all of these statements, you would wish to have them admitted under

Page 1974

1 seal.

2 MR. SACHDEVA: That's correct, Mr. President.

3 JUDGE ROBINSON: Yes. They are to be admitted under seal. Is

4 that clear to the court deputy?

5 THE REGISTRAR: Yes, Your Honour. The two exhibits that we -- the

6 one statement that we have admitted so far and assigned an exhibit number

7 would be D54, and that would be under seal.


9 Mr. Sachdeva.

10 MR. SACHDEVA: Lest there be any confusion, I mean with reference

11 to Witness 54, not to Mr. Fraser.

12 JUDGE ROBINSON: Yes. I think that was understood. Witness 54.

13 Now, the other matter you raised was -- what is this, a statement

14 of clarification?

15 MR. SACHDEVA: Correct, Mr. President. In proofing the witness,

16 it became clear that the witness was injured by -- as he, indeed, has

17 given evidence today and last time he was in court, by a shell and not a

18 bullet. And you may recall that Mr. Whiting made submissions just prior

19 to the commencement of this witness' evidence. Therefore, if learned

20 counsel is seeking to admit these statements where, indeed, it is stated

21 that he was injured by a bullet, then I would ask that the information

22 report be similarly admitted into evidence, under seal.

23 [Trial Chamber confers]

24 JUDGE ROBINSON: Has that been shown to the Chamber or to the

25 Defence?

Page 1975

1 MR. SACHDEVA: The Defence certainly has it. And, in fact, I

2 didn't show it to the witness in examination-in-chief because he has

3 spoken about it under oath here. However, when learned counsel was

4 putting certain questions to the witness, for the sake of completeness and

5 clarity with respect to the shelling incident and the sniping incident and

6 the discrepancy of these incidents, that information report --

7 JUDGE HARHOFF: But, Counsel, are you talking about Mr. Whiting's

8 oral explanation that he gave to us on that first day of the examination

9 of this witness?

10 MR. SACHDEVA: That's correct.

11 JUDGE HARHOFF: So we're not talking about a written report. It

12 was his oral account for the corrections that had been made in respect of

13 these two statement made -- offered by the witness.

14 MR. SACHDEVA: That's correct. However, the submissions were made

15 on the back of information that was gleaned during proofing, whereby, the

16 clarification was resolved. And as -- what is typically done, the OTP

17 provided what we call an information report --

18 JUDGE HARHOFF: What is it that you wish to admit?

19 MR. SACHDEVA: That information report where the discrepancy has

20 been clarified.

21 JUDGE HARHOFF: The written explanation report from your side?

22 MR. SACHDEVA: That's correct.

23 JUDGE HARHOFF: We haven't seen it. We've only heard about it.

24 MR. SACHDEVA: I have it and the Defence has it. Perhaps we can

25 deal with it later and I can show it to you. I can show it later,

Page 1976

1 perhaps.

2 JUDGE ROBINSON: Show it to the Defence and let it be passed to

3 the Chamber, and we'll give a ruling on that later.

4 Ms. Isailovic.

5 MS. ISAILOVIC: [Interpretation] Mr. President, firstly, we did not

6 get a number for the police report on the 22nd of November. We don't know

7 if that document was admitted.

8 JUDGE ROBINSON: Yes, it's admitted. What's the number?

9 THE REGISTRAR: Your Honours, that will be D56. Just for sake of

10 clarity, we have 0471 as D54, under seal; 0479 as D55, also under seal;

11 and now 0489 as D56, under seal as well.

12 MS. ISAILOVIC: [Interpretation] Mr. President, regarding this

13 supplementary sheet, it was, in fact, disclosed to us but only informally.

14 I do not believe that it can be submitted into file, and I don't think

15 that it's really necessary, because the witness explained everything

16 before you. I do not feel the need to have that document as evidence into

17 file. It was not shown to the witness, neither during the

18 examination-in-chief, neither during the cross-examination, and neither

19 during re-examination. So this document was never shown to the witness.

20 MR. SACHDEVA: That's fine, Mr. President. I'll withdraw that.

21 JUDGE ROBINSON: All right. Thank you.

22 Mr. Whiting, for the next witness. Mr. Waespi, I am sorry.

23 MR. WAESPI: Good morning, Mr. President. Just before the next

24 witness comes in, he will be taken again by Mr. Sachdeva. I have two

25 small matters. One would require going into private session because it

Page 1977

1 relates to protective measures of a witness who will testify on Wednesday.

2 We can do it now, Mr. President, or at the end of today's court, which is

3 in ten minutes.

4 JUDGE ROBINSON: Yes, let's do that now.

5 MR. WAESPI: Mr. President, let's --

6 JUDGE ROBINSON: Just a minute. Apparently, there's somebody in

7 the public gallery.

8 May we proceed?

9 MR. WAESPI: Thank you, Mr. President --

10 JUDGE ROBINSON: No. No, I'm asking. Is it okay? Yes, we may

11 proceed. We're in open session, and we wish to be in private session?

12 MR. WAESPI: The first point can be dealt with in open session,

13 Mr. President. And it's -- it's an exhibit I have omitted to ask to be

14 tendered as well, and it relates to Witness Kemal Buco who testified on

15 the 2nd of February, 2007, and I have shown to the witness 65 ter number

16 02887, which was a report dated the 24th of November, 1994, and signed by

17 the witness. I just forgot to ask to formally tender that exhibit. I can

18 direct you to the lines of that exhibit, if you wish.

19 JUDGE ROBINSON: So the 2nd of February. Today is the --

20 MR. WAESPI: The 2nd of February.

21 JUDGE ROBINSON: Today is the 12th. That's some time away. I'm

22 trying to recall it.

23 Mr. Tapuskovic.

24 MR. TAPUSKOVIC: [Interpretation] Your Honours, I'm not sure if

25 this was raised in chief. I don't remember this being put to the witness.

Page 1978

1 I can't even remember if I raised the issue myself.

2 JUDGE ROBINSON: When was it raised?

3 MR. WAESPI: It was raised, Mr. President, during

4 examination-in-chief on Friday, 2nd February, and it's on pages 1493.

5 JUDGE HARHOFF: Which witness?

6 MR. WAESPI: Kemal Buco.

7 JUDGE HARHOFF: Kemal Buco.

8 JUDGE ROBINSON: I tell you what I'll do. I'll have Chamber staff

9 to investigate it and we will give a ruling later.. I think it is

10 appropriate for me to tell the parties that it is their duty -- Ms.

11 Isailovic, please listen.

12 It is opportune for me to tell the parties that it is their duty

13 to see that the documents they wish to have tendered are tendered. They

14 must seek the admission of these documents. There has been negligence on

15 the part of all parties in this respect.

16 MS. ISAILOVIC: [Interpretation] It happens to the best of us.

17 MR. WAESPI: Thank you, Mr. President. Just to continue the

18 reference, it was on 1493, lines 17 to 25, and 1494, lines 1 to 8. That's

19 where the reference was discussed and, indeed, showed the proposed exhibit

20 to the witness.

21 JUDGE ROBINSON: As I said, I'll have the Chamber staff

22 investigate that, and we'll give a ruling on that sometime.

23 MR. WAESPI: Thank you, Mr. President. If we could go into

24 private session.

25 JUDGE ROBINSON: Yes, private session.

Page 1979

1 [Private session]

2 (redacted)

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Page 1980

1 (redacted)

2 (redacted)

3 (redacted)

4 [Open session]

5 THE REGISTRAR: We're in open session, Your Honours.

6 JUDGE ROBINSON: Let the witness make the declaration.

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

8 whole truth, and nothing but the truth.


10 JUDGE ROBINSON: Thank you. You may sit.

11 And begin.

12 MR. SACHDEVA: Mr. President, Your Honours, may I lead the witness

13 through his personal details?


15 MR. SACHDEVA: Thank you.

16 Examination by Mr. Sachdeva:

17 Q. Good afternoon, Mr. Knustad. I am going to, in the brief time we

18 have left, just run through your details about your personal background.

19 Firstly, you currently work at NATO headquarters in the United

20 States, in Virginia, and you are military assistant to a division

21 commander; is that right?

22 A. That's correct. I work as military assistant to a general, which

23 is head of a division in the NATO headquarters, in Virginia.

24 Q. And you have been there now for six months?

25 A. That's correct. I was assigned that position at the 1st of August

Page 1981

1 last year.

2 Q. And, roughly, you have spent 25 years in the Norwegian navy; is

3 that right?

4 A. That's correct. I started at the coast artillery school in 1982

5 and went on from there, mainly with coast artillery and artillery as my

6 branch.

7 Q. Just prior to your posting in the United States at NATO

8 headquarters, is it correct that you were the Norwegian media spokesperson

9 for operational matters for the Norwegian forces?

10 A. That's correct. I worked at the national joint headquarters in

11 Norway as a media spokesperson, and I had the responsibility for all

12 contacts with media on operational matters, on Norwegian national deployed

13 forces and forces deployed abroad.

14 Q. Prior to that -- well, from 1997 to the year 2000, you were a

15 deputy commander of the Navy Artillery School; is that right?

16 A. That's correct. That's the Navy Artillery School in Norway where

17 I served as deputy commander, yes.

18 Q. And I won't go into every single posting you've had, but is it

19 correct that in the '80s -- in the 1980s and the early 1990s, you had

20 various positions as gunnery commander or a gunnery officer, dealing with

21 155-millimetre artillery pieces; is that correct?

22 A. That's correct. I had both education at officer training and I

23 had service as a gunnery commander and battery commander as well, and my

24 last assignment from before I joined the UN in 1995 was being a gunnery

25 unit commander at coastal fortress in Norway.

Page 1982

1 Q. Right. That's where I want to move, to the UN in 1995. Firstly,

2 when did you join the United Nations in 1995, and where?

3 A. Well, I assigned on the 6th of June, 1995; I came from Norway to

4 the UNMO headquarters in Zagreb where we had one week of checking in and

5 training; and I was, after that, assigned to go to Sector Sarajevo.

6 JUDGE ROBINSON: Mr. Sachdeva, there we must break.

7 And we'll adjourn until tomorrow afternoon, 2.15.

8 --- Whereupon the hearing adjourned at 1.46 p.m.,

9 to be reconvened on Tuesday, the 13th day of

10 February, 2007, at 2.15 p.m.