Tribunal Criminal Tribunal for the Former Yugoslavia

Page 589

1 Monday, 22nd June 1998

2 (Open session)

3 (The witness entered court)

4 (The accused entered court)

5 --- Upon commencing at 9.00 a.m.

6 JUDGE MUMBA: Good morning. May the

7 registrar please call the case?

8 THE REGISTRAR: Case number IT-95-17/1-T.

9 The Prosecutor of the Tribunal versus Anto Furundzija.

10 JUDGE MUMBA: Thank you. Mr. Furundzija, can

11 you hear me in a language you understand?

12 THE ACCUSED: Yes, Your Honour.

13 JUDGE MUMBA: Appearances, please, for the

14 Prosecution.

15 MS. SELLERS: The appearances are the same

16 for the Prosecution, Your Honour.

17 JUDGE MUMBA: Thank you. For the Defence?

18 MR. MISETIC: Your Honours, the appearances

19 are the same. If I may note something, the computer

20 system here doesn't appear to be working, at least on

21 the Defence side.

22 JUDGE MUMBA: You can't get the transcript?

23 MR. MISETIC: No. We have a blank screen.

24 JUDGE MUMBA: Are they still carrying out

25 tests?

Page 590

1 I am informed it will take a few seconds, so

2 we can just wait.

3 (Pause in proceedings)

4 MR. MISETIC: Judges, may I propose

5 something? Our laptops are showing a simultaneous

6 transcript, so if we're going to go ahead with the

7 direct examination of Dr. Loftus, it will probably take

8 at least 15 minutes, and perhaps the -- well, unless

9 the lights go off, in which case we can go to sleep, I

10 take it, or ...

11 We propose that we go ahead and start with

12 the direct. We can keep track of the transcript and

13 make sure it's accurate from this laptop, and

14 hopefully, within 15 minutes, they can bring us back up

15 to speed.

16 JUDGE MUMBA: Yes, I think so. The laptop

17 can show the proceedings?

18 MR. MISETIC: Yes.

19 JUDGE MUMBA: So we can go ahead.

20 MR. MISETIC: Yes.

21 MS. SELLERS: Excuse me, Your Honours. Might

22 I just say one thing? I would just like to say that

23 the Prosecution computers now are not functioning

24 either. We will, of course, follow Defence counsel's

25 lead and follow our laptop, but it's very difficult for

Page 591

1 us, during the direct examination now, to see the

2 transcript of the witness who is being examined also.

3 JUDGE MUMBA: You can see from the laptop?

4 MS. SELLERS: Your Honours, we'll move the

5 laptop over so that we are able to follow, but I just

6 want to state that on the screen, where it is more

7 visible, it will be impossible for us also.

8 JUDGE MUMBA: I think we can go ahead then,

9 and we shall use the laptops. So the Defence can go

10 ahead and examine their witness.

11 The usher -- can the witness take the oath,

12 make a solemn declaration, please?

13 MR. MISETIC: Your Honour?

14 JUDGE MUMBA: Yes.

15 MR. MISETIC: Maybe before we do that, we

16 would like to move into evidence an exhibit. We have

17 talked with the Prosecution about it, and I don't

18 believe they have any objection. It is a medical

19 record taken at the time Mr. Furundzija arrived at the

20 UN detention area. We have a translation. It is in

21 Dutch. There is an English translation that we have.

22 We would like to move them into evidence.

23 JUDGE MUMBA: Thank you. Before the

24 Prosecution responds -- yes?

25 (Discussion with registrar off record)

Page 592

1 JUDGE MUMBA: I am afraid the technical

2 department says that we can't proceed because they have

3 some serious problems they have to look into, so we

4 shall adjourn until we are informed that we can go

5 ahead.

6 I have to apologise to the witness. Sorry,

7 we have technical problems. We shall resume as soon as

8 everything is working.

9 --- Recess taken at 9.13 a.m.

10 --- On resuming at 9.36 a.m.

11 JUDGE MUMBA: The technical people have

12 informed the Chamber that we can proceed using laptops,

13 and we should all switch off the screens because the

14 repairs are continuing. The bigger screens should be

15 switched off. So we can go ahead using our laptops

16 because the recording will still go ahead.

17 So may the witness please make the solemn

18 declaration?

19 MR. MISETIC: Your Honours, again, as I tried

20 to say before the break, we have some documents that

21 we'd like to move into evidence as Exhibit -- that

22 we're moving into evidence as Exhibit 16 and the

23 translation as 16A. They are a medical record taken by

24 the UN detention unit upon Mr. Furundzija's arrival

25 in custody. They are kept in part of the ordinary

Page 593

1 course of business in the unit, and it's my

2 understanding, in talking to counsel, that they have no

3 objection.

4 JUDGE MUMBA: Is that so, Prosecution?

5 MS. SELLERS: We have no objection, Your

6 Honour.

7 JUDGE MUMBA: Thank you. The documents can

8 be admitted into evidence.

9 THE REGISTRAR: Defence Exhibit 16.

10 WITNESS: DR. ELIZABETH LOFTUS

11 JUDGE MUMBA: May the witness make the solemn

12 declaration, please?

13 THE WITNESS: I solemnly declare that I shall

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

15 truth

16 Examined by Mr. Davidson:

17 Q. Would you state your name and spell your last

18 name for the court reporter, please?

19 A. My name is Elizabeth Loftus, and it's

20 L-O-F-T-U-S.

21 Q. Where do you reside, Ms. Loftus?

22 A. I live and work in Seattle, Washington

23 working at the University of Washington.

24 Q. Could you briefly describe for the Trial

25 Chamber your educational background?

Page 594

1 MS. SELLERS: Excuse me, Your Honour. I

2 would like to say that the Prosecution will stipulate

3 that Mrs. Loftus is an expert in this field.

4 MR. DAVIDSON: I accept the stipulation, but

5 I would like to just briefly go over a little bit of

6 her qualifications before I go in, and I will cut it

7 down significantly.

8 JUDGE MUMBA: Yes.

9 MR. DAVIDSON:

10 Q. Can you briefly describe your educational

11 background?

12 A. Beginning with university, I went to the

13 University of California at Los Angeles and I graduated

14 in 1966 with a bachelor's degree in mathematics and

15 also in psychology. Then in 1967, I went to Stanford

16 University. I received a master's -- well, I received

17 my master's from Stanford in 1967, and that was

18 followed by a Ph.D. in psychology in 1970.

19 Q. So you have a doctorate degree.

20 A. I do, yes.

21 Q. So I should refer to you as "Dr. Loftus"?

22 A. You may. That would be appropriate.

23 Q. Thank you. Doctor, since you received your

24 doctorate, what research, if any, have you done in the

25 field of human memory, and particularly the way memory

Page 595

1 relates to eyewitness testimony?

2 A. Since receiving my Ph.D. and beginning my

3 academic career, most of which was spent at the

4 University of Washington, I have been involved in

5 literally hundreds and hundreds of studies of human

6 memory, focusing primarily on eyewitness testimony, on

7 people's memories for crimes and accidents, and also on

8 the malleability of memory or distortion of memory that

9 occurs through suggestive influences.

10 Q. During the course of your career, have you

11 published any books or articles on this subject, and if

12 so, how many?

13 A. I've published approximately 19 books,

14 approximately 250 or 300 scientific articles and

15 chapters, primarily on the subject of memory.

16 The books actually are on a variety of

17 subjects, but two of the books deal exclusively with

18 the subject of memory, four of the books are on the

19 subject of eyewitness testimony in particular, and then

20 I've also published some textbooks in the area of

21 cognitive psychology.

22 Q. Dr. Loftus, are you at present an officer of

23 any professional organisation?

24 A. Yes, I am. I belong to a number of

25 professional organisations, including the Western

Page 596

1 Psychological Association, which covers the Western

2 region of the United States, and I was president of

3 that organisation in, oh, 1984, I think it was. I was

4 also president of a number of other divisions of the

5 American Psychological Association. I am currently a

6 member of the Psychonomic Society, which is the

7 organisation for experimental psychologists, and I

8 served on the governing board of that organisation. At

9 the present, I am a member of the American

10 Psychological Society, I'm a fellow in that society,

11 and I am currently the president of the organisation.

12 Q. During your career, Dr. Loftus, have you

13 received any honorary degrees from any colleges or

14 universities?

15 A. I have received a number of honorary

16 degrees. The first one was in 1982, I believe. I

17 received an honorary doctorate from Miami University

18 which is located in Ohio, in the State of Ohio, and I

19 delivered the commencement address in conjunction with

20 that honour.

21 The second one was awarded in 1990 from

22 Leiden University in the Netherlands.

23 The third one was in 1994, which is a doctor

24 of laws degree, from John Jay College of Criminal

25 Justice, which is one of the universities that is part

Page 597

1 of the City University of New York system. This

2 college is located in New York State.

3 And then I will receive another honorary

4 doctorate in a few weeks from a British university,

5 from the University of Portsmouth in Great Britain.

6 Q. What is your present professional position

7 with the University of Washington?

8 A. Well, I am a full professor at the University

9 of Washington. My main appointment is in the

10 department of psychology, I am a professor of

11 psychology, but I also have an appointment as adjunct

12 professor of law, so I do have a relationship also with

13 the law school.

14 Q. Dr. Loftus, have any of your experiments

15 regarding eyewitness testimony been supported by grants

16 from the United States government?

17 A. Yes. Beginning in the early 1970s, I began

18 to receive support from the US government for my

19 studies of memory and eyewitness testimony and related

20 subjects, and so over the course of the 25 years or so

21 that I have been doing this work, I have been funded by

22 the National Science Foundation, the National Institute

23 of Mental Health, the National Institute of Health, the

24 United States Department of Transportation, and some

25 other agencies.

Page 598

1 Q. Can you tell the Trial Chamber the nature and

2 type of experiments that you have conducted pursuant to

3 these grants?

4 A. I've been the principal investigator of a

5 number of projects, but the ones that are most relevant

6 to eyewitness testimony are projects that supported

7 experiments in which we would, just briefly, present

8 people with simulated crimes or simulated accidents,

9 and then we would test their memory for the details of

10 these events at some later time.

11 One of the major aspects of the situation

12 that I was particularly concerned with in many of my

13 experiments is what happens to memory during that

14 period of time between the crime or accident and

15 someone's statement or recollection of that experience.

16 I studied the extent to which witnesses will

17 respond to suggestions or suggestive information and

18 the extent to which they respond to leading questions

19 or to biased interviews, and the mechanism by which

20 memories can be distorted as a result of suggestion,

21 leading questions, or other intervening activities.

22 Q. Doctor, before I take you into questions

23 which relate to the case, I want to ask you a

24 question: Are you familiar with the Dusko Tadic case

25 that was tried here in The Hague?

Page 599

1 A. I am familiar with that case. I pronounce it

2 slightly differently but ...

3 Q. How are you so familiar with that case?

4 A. I am familiar with the case because I

5 consulted with one of the prosecutors on the case, Alan

6 Tieger. There were extensive consultations, at least

7 one long meeting, assisting him with information about

8 that case relevant to the subject of memory.

9 Q. Does the fact that you were consulted in the

10 Tadic case in any way pose any conflicts of interest

11 which would preclude you from testifying in this case?

12 A. Well, when I was first approached about

13 working on this case, I did worry about whether or not

14 there might be some sort of a conflict, just as I would

15 in any case where it looked like the two cases might,

16 in some way, be related to each other, and I thought

17 about this seriously for some time and decided that

18 there were no conflicts in actually working on these

19 two cases in separate ways.

20 Q. Dr. Loftus, have you testified as an expert

21 witness on the issues of memory and eyewitness

22 testimony?

23 A. I've testified in court cases many, many

24 times, beginning on June 3rd, 1975, my first courtroom

25 testimony; and today, in June of 1998, I've testified

Page 600

1 perhaps 220 or 230 times in trials of various types.

2 Q. Can you tell the Trial Chamber where the

3 courts were located in which you testified?

4 A. Primarily I've testified in the United

5 States, although I have testified in some other

6 countries, primarily in the United States.

7 Approximately two-thirds of the cases were criminal

8 cases and perhaps a third, or maybe a little bit more,

9 civil cases. I've testified in State Court, in Federal

10 Court, in military trials, and in other kinds of

11 proceedings, legal proceedings.

12 Q. Have you testified for and consulted with the

13 Prosecution in criminal cases?

14 A. I have, yes. I've consulted with the

15 Prosecution a number of times -- actually, I've only

16 testified one time for the Prosecution in a criminal

17 case, but I've had many engagements with prosecutors

18 over the years.

19 Q. Doctor, in devising experimental techniques

20 for investigating eyewitness testimony, what, if any,

21 categories or subcategories are used with respect to

22 memory?

23 A. It's very common to think about the field of

24 eyewitness testimony using three categories, and if I

25 might, it might help if I could illustrate this using

Page 601

1 the ELMO, if that would be possible.

2 MR. DAVIDSON: The question is, I don't know

3 if the ELMO is working in light of the fact that the

4 monitors aren't working.

5 JUDGE MUMBA: Unfortunately, no, because we

6 can't use the screen. Unfortunately, no.

7 A. All right. Your Honour, I'll try to do it

8 without it.

9 The people, the scientists in my field,

10 divide the field into three major stages. In fact,

11 maybe I'll draw for myself and then show it to you when

12 the system is working again, if that's okay?

13 The first stage of the process is called the

14 acquisition stage, and this is a period of time where

15 some event occurs and some information is laid down in

16 memory about that event. In thinking about this

17 particular case, we might be thinking of the event or

18 some events that might have occurred on May 15th, 1993.

19 After the event is over, there is a new phase

20 that is relevant to memory, and that is called the

21 retention phase.

22 Finally, a witness may try to recall

23 information about the event, might answer questions,

24 might make a statement, might try to make an

25 identification of someone who was seen before, and we

Page 602

1 call that phase the retrieval phase.

2 Of course, we understand that there may

3 actually be multiple retrievals, so if a witness is

4 trying to recall the events that might have occurred on

5 May 15th, 1993, and makes a statement about those

6 experiences on December 7th, 1993, that is an act of

7 retrieval. If there is another attempt to be

8 interviewed or make a statement -- for example, in July

9 of 1995 -- that's a separate act of retrieval.

10 Our job then as scientists in this field is

11 to identify the factors that come into play at each of

12 these phases that affect the accuracy, the

13 completeness, and the confidence of somebody's

14 recollection.

15 Q. Doctor, with respect to the acquisition

16 stage, are there any psychological factors which you

17 have identified in studies that play a role in the

18 acquisition of the information into a person's memory

19 system, and if so, what are they?

20 A. At the time of acquisition or when an event

21 or some events are occurring, there are a number of

22 factors that come into play. Some of them are very

23 obvious factors, such as how good the lighting is or

24 how long a witness has to look at whatever the witness

25 may try to remember later, but some of the factors are

Page 603

1 not so obvious. Research sometimes shows that they

2 operate in ways that are different from what lay people

3 think is the operation, and I'm talking now about the

4 effects of extreme stress or the effects of

5 experiencing something very violent or the effects of

6 experiencing an event that involves a weapon. These

7 can create a situation that can actually impair memory,

8 especially for peripheral details.

9 Q. Can you explain the differences to the Trial

10 Chamber, if there are any, between a person's ability

11 to perceive a violent event vis-à-vis a non-violent

12 event?

13 A. Yes. I think it might help to think about

14 what happens when somebody experiences a violent or

15 highly upsetting event compared to a non-violent event

16 and the kind of studies that have been done to explore

17 this question -- I'll draw this partly for myself in

18 hoping that I might be able to show the court later --

19 just to give you one example of the kind of study that

20 we have done to look at what happens when people see a

21 very violent event.

22 We might show people a --

23 Q. Doctor, I think the screen is now on.

24 A. Good.

25 JUDGE MUMBA: The screen is now working so

Page 604

1 the ELMO can be operated. Can the usher please

2 assist?

3 MR. DAVIDSON:

4 Q. As you're drawing, it now can be seen by the

5 Judges and the other lawyers. Go ahead, Doctor.

6 A. In one of the studies actually conducted in

7 my own laboratory where we try to look at the effects

8 of witnessing something violent, we showed our subjects

9 a two minute and fifteen second video. The first two

10 minutes show a bank robbery occurring and the last

11 fifteen seconds show a very violent ending in which a

12 little boy is -- the robber is leaving the bank after

13 he's robbed the bank, he is being chased by some

14 employees into the parking lot, and he turns around to

15 shoot at the people who are chasing him -- and this is

16 the violent ending -- he hits a little boy in the face,

17 he shoots the boy. The boy screams and falls over, and

18 this is the violent ending to this event.

19 In this particular study, we took the same

20 film, but we spliced off the ending, the last 15

21 seconds, and we created a non-violent version. So the

22 beginning two minutes are exactly the same, the robbery

23 happens in the bank and so on, and the endings are

24 different. So one group has experienced a violent

25 ending, the other has experienced a non-violent ending.

Page 605

1 Finally, we will ask people to recall details

2 about the events. We were particularly interested in

3 the first two minutes of the event, and because these

4 pieces were identical for the two groups, but what we

5 found is that when people tried to recall the details,

6 they were much less accurate in recalling the details

7 if they had seen the violent ending than if they had

8 seen the non-violent ending.

9 So, for example, I'll give you an example of

10 one detail that occurred right here. About two to four

11 seconds before the eruption of the violence, you can

12 see the clothing of the little boy who was shot in the

13 face -- or he was not shot in this version. For

14 example, you might, in one of the studies, I believe

15 about 4 per cent could recall the details of that

16 clothing after they had seen the violent ending, but 28

17 per cent could recall the details of that clothing if

18 they had seen the non-violent version.

19 We also found that for most of the other

20 details, the appearance of the robber, what the robber

21 said to the bank teller, the note that he handed, for

22 almost all of these other details, people were more

23 accurate if they had seen the non-violent ending.

24 What this violence appears to do is it

25 interferes with the consolidation into memory of these

Page 606

1 details which would have otherwise been remembered

2 much, much better.

3 So this is an example showing that,

4 experiencing something violent, you can remember what

5 type of event it was, you can remember a few core

6 details about the event, but often the other details

7 are seriously impaired in memory.

8 Q. Doctor, with respect to a weapon, if a person

9 is threatened with a knife or a gun, does the display

10 of the weapon have any effect on that person's ability

11 to perceive the event?

12 A. In terms of a weapon, yes, and I can

13 illustrate what I mean by that using the ELMO.

14 There is a phenomenon called "weapon focus."

15 There are now a number of studies that have been done

16 on this phenomenon.

17 When a weapon has been used in a crime

18 situation, and the kind of situation that's been

19 simulated might be more like an armed robbery sort of

20 situation, but when a weapon is used in a crime

21 situation, it does tend to capture some of the witness

22 or victim's attention, it leaves less time for looking

23 at other details, it results in sometimes a good memory

24 for the weapon and the description of the weapon, a

25 poor memory for other details that might be going on --

Page 607

1 what you might say are "surrounding details."

2 One of the studies that we actually did on

3 the weapon focus phenomenon was to show people --

4 again, we had two events. One event was an armed

5 robbery that unfolds in a cafeteria type of restaurant

6 where, at some point in time, the suspect pulls out a

7 gun at the cashier -- that would be here, you would see

8 the gun. And in another version, there is no gun, we

9 use a neutral object. He hands her some money or he

10 hands her a cheque, but no gun.

11 While our research subjects were looking at

12 either the weapon version or the no-weapon version, we

13 monitor their eye movements. We hook them up to an eye

14 movement recording device so that we could actually see

15 what they were looking at, we could see the eye

16 fixations and where they were located, and we could

17 even measure how long the eye fixations lasted.

18 Now, if you are a researcher gathering data

19 like this on the fixation patterns that occur with a

20 witness to a scene involving a weapon, one thing you

21 need to know is that when we look around the world and

22 we take in information, whether it's an ordinary event,

23 whether it's a crime, whatever it is, we actually are

24 taking in information in a series of eye fixations. So

25 we make a fixation, and that fixation might last about

Page 608

1 250 milliseconds or 300 milliseconds, about a quarter

2 of a second or a third of a second, and then we move to

3 a new location and we make another fixation, and that

4 new fixation is also maybe 300 milliseconds, and we

5 might move to a new fixation or we might fixate again

6 on the same spot. These little jumps between

7 fixations, they last about 40 milliseconds, they're

8 very short jumps, they're called saccades, which is

9 S-A-C-C-A-D-E-S.

10 But the point I want to make is, when we do

11 this research with this technology, we can see a

12 computer display of the scene that the subject is

13 looking at and where exactly a spot of light is moving

14 that tells us where the eye is fixating, and we can

15 actually calculate how many fixations there are on the

16 gun, how many fixations there are on the cheque, and

17 how long those fixations are.

18 When we did this research, we found that when

19 the gun is in the scene, people fixate on it more than

20 they do for the neutral object. Those fixations are

21 actually longer, it might be the difference between an

22 average of 350 milliseconds for the gun and 300

23 milliseconds for the cheque, and it results in a

24 reduced ability to remember other details, including

25 recognising the face of the person who is holding the

Page 609

1 weapon.

2 So this is a bit of an elaboration of what we

3 know about weapon focus.

4 Q. Let's turn our attention to the retention

5 period, and, Doctor, are you familiar with the term

6 "retention interval," and if so, would you tell the

7 Trial Chamber what that means?

8 A. Yes, I'd be happy to. I think I will refer

9 back to -- this first graph that I was drawing, it

10 shows an event that may have occurred, for example, on

11 May 15th, 1993. And then there's a retention phase,

12 some period of time after the event until the witness

13 tries to retrieve information about that event. And

14 this is called the retention interval. One thing we

15 know about memory for the event is that it will begin

16 to fade over the course of that retention interval.

17 Now, if we were to then plot a graph of

18 memory, how good the memory is, where this is "good

19 memory" and this is "poorer memory," over the course of

20 the retention interval or the passage of time, you

21 would see typically that memory starts off being

22 relatively good and then it declines. And so as time

23 is passing, the memory is getting weaker and weaker.

24 Q. Are you aware, Doctor, of the term

25 "post-event information"?

Page 610

1 A. Yes.

2 Q. In the field of memory and eyewitness

3 testimony, does that term, "post-event information,"

4 have a specific meaning?

5 A. It does. "Post-event information," sometimes

6 we even abbreviate it, "PEI," means new information

7 that becomes available to a witness after an event is

8 completely over. That new information can become

9 available to a witness when a witness engages in

10 conversations with other people, when a witness is

11 interrogated about the past, perhaps with the use of

12 leading questions or in a suggestive interview, when

13 the witness sees television coverage about some event

14 that the witness might have experienced. All of these

15 are examples of post-event information that can affect

16 the witness --

17 JUDGE MAY: Let me interrupt you for a

18 moment, Doctor.

19 Mr. Davidson, I wonder how helpful this is.

20 Do we need an expert to tell us that memories fade or

21 that if somebody received some information after an

22 event, that it may affect their memory or their

23 recall?

24 I'm concerned about this because we're not

25 a jury and these are all matters which, even for

Page 611

1 a jury, are matters, I should have thought, are common

2 knowledge and matters which are well within the

3 experience of anybody.

4 And the idea of time being taken up to tell

5 us something we know already, I don't think is very

6 helpful. I wonder, perhaps, if we could move to things

7 which are really outside our experience which the

8 witness can give us evidence about.

9 MR. DAVIDSON: I moved quickly over the

10 question of memory fading over time. I really want to

11 centre on this question of post-event information and

12 how that relates to the witness's recitation of the

13 events perceived. I would like to move to that quickly

14 and then I will conclude the examination, Your Honour.

15 Q. I would like to pose a hypothetical to the

16 witness and give you the following facts and have you

17 discuss those in terms of the question of post-event

18 information.

19 Let us assume that on a date certain, a

20 person is the victim of a violent crime and states that

21 one of the perpetrators is a stranger to her, that is,

22 she hasn't seen that person before or after the date of

23 this violent crime. And assume further that

24 approximately two years later, the victim for the first

25 time describes the assailant as 172 centimetres, blond

Page 612

1 hair and small features. And then assume further that

2 approximately three years later in trial testimony, the

3 victim describes the person as 180 centimetres with

4 chestnut to black hair. And assume further that

5 between the time of the description of the assailant

6 for the first time two years after the event and before

7 the trial testimony, the witness has seen a photograph

8 on television of the assailant which reflects chestnut

9 to black hair.

10 Now, would the post-event findings and

11 information that you've discussed here today have any

12 relationship to the hypothetical as I have posed it to

13 you? If so, can you explain that to the Trial Chamber,

14 how this information relates to the post-event

15 information about which you previously testified?

16 A. Yes. First, it's important to understand

17 about post-event information, that as the memory is

18 fading -- yes, the court is right, that memory fades as

19 a matter of common sense, and you don't need a Ph.D. to

20 realise that. What is not so much a matter of common

21 sense is that as the memory is fading and becoming

22 weaker or whenever there is any other extraneous

23 influence that might be weakening the memory, it

24 becomes more vulnerable to post-event information.

25 So a memory that has been weakened, for

Page 613

1 example, from 5/15/93 to now six months later, December

2 '93, which is a substantial period of time in and of

3 itself for memory to be decaying, that memory is going

4 to be even more susceptible to post-event influences,

5 to alterations or changes or transformations that are

6 due to some sort of new information or suggestive

7 information that was presented.

8 If you consider the further weakening that

9 might occur as we go into -- a statement, for example,

10 of 1995, and even court testimony from June of 1998,

11 those weaker memories are more susceptible to

12 post-event information.

13 When you see someone's testimony changing so

14 dramatically -- excuse me. I'm looking for the drawing

15 so I can see if it's centred. As in the hypothetical

16 example where we have in July of '95, 172 centimetres,

17 short, blond hair, small features, for example; and now

18 later, you see this dramatic change in testimony to

19 dark hair, 180 centimetres, and so on. One of the most

20 common reasons why a witness's testimony changes from

21 one point in time to another is that that witness has

22 been exposed to some new information, some post-event

23 information.

24 A viewing of the photograph on television in

25 the interval between these two attempts to retrieve

Page 614

1 information is just the kind of post-event information

2 that we have seen in these studies gets absorbed by a

3 witness and can cause an alteration, a transformation,

4 or the distortion in the memory of a witness who is

5 otherwise trying to be as honest as she can be.

6 Q. Dr. Loftus, are you familiar with the term

7 "post-traumatic stress disorder"?

8 A. Yes, I am.

9 Q. Can you tell us what that is?

10 A. When someone has experienced a horribly

11 traumatic event, there are sometimes, many times, very

12 serious consequences from that experience. And

13 post-traumatic stress disorder is usually diagnosed

14 when certain symptoms are present, such as depression,

15 anxiety, suicidal ideation or thoughts about suicide,

16 nightmares, and so on.

17 Q. Do you have an opinion, Doctor, based on your

18 education and experience in the field of memory and

19 eyewitness testimony as to the relationship between

20 post-traumatic stress disorder and post-event

21 information?

22 A. I do have an opinion.

23 Q. What is that?

24 A. Well, first, it does appear as if there is

25 evidence in this case for a strong reaction to a very

Page 615

1 horrible set of circumstances and definitely evidence

2 of symptoms of post-traumatic stress disorder.

3 Now, there has been no explicit study of

4 comparing a PTSD patient's susceptibility to post-event

5 information to a person without PTSD. But based on

6 other considerations, based on the fact that we know

7 that when people are not processing information

8 particularly well, are not able to notice discrepancies

9 between what is being suggested to them and what is

10 part of their memory, and to defend against those

11 discrepancies, under those conditions, people are more

12 susceptible to suggestive influences or to post-even

13 information.

14 In my opinion, this would be a situation

15 where someone would be vulnerable to post-event

16 suggestions and, perhaps, especially vulnerable.

17 Q. Let me ask you one final question dealing

18 with a hypothetical. Assume that two people are

19 together and both are the victims of a violent event

20 occurring within the same time frame. And assume

21 further that in telling the story of this event, each

22 person tells a version of the event which differs in

23 material ways from the other person's version. Is

24 there anything in the studies and/or your experience

25 which would explain the significant difference in the

Page 616

1 memories of the two persons with respect to the same

2 event?

3 A. There are many reasons why two people can be

4 in the same place and seemingly experiencing the same

5 event and come up with different versions. The obvious

6 reason is that they are paying attention to different

7 aspects of the event. And if they paid better

8 attention to some aspect, their memory might be a

9 little bit better about that aspect.

10 But another key reason why two witnesses can

11 differ so completely is because of post-event

12 information. If one of those witnesses has received

13 some post-event suggestion and has experienced an

14 alteration or a contamination, a distortion in memory,

15 and the other hasn't received that suggestion, then you

16 might very well see two completely different versions.

17 MR. DAVIDSON: Your Honour, I would like to

18 have marked the various documents which Dr. Loftus has

19 referred to and drawn during her testimony. I don't

20 recall how many numbers of documents there were, but I

21 think we're on Defence Exhibit 17. I would like to

22 have --

23 THE REGISTRAR: They have been marked Defence

24 Exhibit 17, 18, 19 and 20.

25 JUDGE MUMBA: Any objection?

Page 617

1 MS. SELLERS: No objection from the

2 Prosecutor, Your Honour.

3 MR. DAVIDSON: Since there's been a

4 stipulation with respect to the witness as an expert, I

5 see no reason to clog the record with her curriculum

6 vitae as an exhibit.

7 JUDGE MUMBA: Yes, that is normal.

8 MR. DAVIDSON: Your Honour, at this point, I

9 have no further questions of the witness.

10 JUDGE MUMBA: The Prosecution?

11 MS. SELLERS: Might I just ask for a

12 five-minute recess. I would like to just confer with

13 counsel for a second.

14 JUDGE MUMBA: The court will take a 20-minute

15 break. There are no more recesses, so we shall start

16 after 20 minutes.

17 MS. SELLERS: Thank you, Your Honour.

18 --- Recess taken at 10.20 a.m.

19 --- Upon commencing at 10.44 a.m.

20 JUDGE MUMBA: Yes, the Prosecution, please,

21 any cross-examination?

22 MS. SELLERS: Yes, Your Honour, I have just a

23 few questions.

24 Cross-examined by Ms. Sellers:

25 Q. Dr. Loftus, thank you for your theories on

Page 618

1 suggested memory. I just have a couple of questions

2 I'd like to ask you. Have you discussed and read with

3 Defence counsel the transcripts of Witness A for this

4 case, her statements from the Bosnian government?

5 A. Yes, I have, the statements.

6 Q. Have you read the statement from the

7 Investigative Magistrature of Zenica?

8 A. Is that the July 1995 statement?

9 Q. No, that's another statement. Have you read

10 that one, Dr. Loftus?

11 A. I read one statement from December 7th, 1993,

12 another from July 1995.

13 Q. So you didn't read the other statement from

14 December 1993, I take it?

15 A. No.

16 Q. Have you read her transcripts from previous

17 testimony?

18 A. The transcripts in this proceeding? Is that

19 what you're referring to?

20 Q. Have you read any transcripts from the

21 witness?

22 A. I have not read transcripts. I skimmed

23 briefly some trial testimony, but I received it much

24 too late to really digest it.

25 Q. I understand. Have you spoken with the

Page 619

1 investigators who were involved in this case?

2 A. No, I don't believe I have.

3 Q. And then can I assume that you also have not

4 spoken with any of the investigators that were involved

5 in the statement from Zenica of December 1993?

6 A. Correct.

7 Q. And you have not spoken to any members of the

8 Bosnian War Crimes Commission from the 1993 statement

9 either?

10 A. No.

11 Q. Might I ask you, have you spoken to any of

12 the interpreters who were present when the statement

13 was taken in 1995 by the Office of the Prosecutor?

14 A. No, I haven't.

15 Q. And have you spoken to any of the

16 interpreters that were present during the rendering of

17 any testimony or transcripts?

18 A. No.

19 Q. Might I ask you, have you been able to look

20 and discuss with Defence counsel the statements of

21 Witness D?

22 A. Yes.

23 Q. Have you had a chance to review any

24 transcripts that have come from Witness D?

25 A. No.

Page 620

1 Q. Have you spoken to any investigators involved

2 in the case with Witness D?

3 A. No.

4 Q. Have you spoken to any interpreters that

5 might have assisted during the taking of those

6 transcripts --

7 A. No, I haven't.

8 Q. -- or statements?

9 A. No.

10 Q. Thank you. I would just briefly like to ask

11 you, you understand that the nature of this case, the

12 time frame of this case, is a bit longer than the two

13 minutes that is allotted to some of the your

14 experiences in experiments for eyewitness testimony; is

15 that correct?

16 A. Yes.

17 Q. Are you aware that the time reference in this

18 case spans three days?

19 A. Well, I'm not quite sure I understand your

20 question. I understood that May 15th was a critical

21 day for allegations involving one particular defendant.

22 Q. Right. So then you weren't informed that

23 during a three-day period, one of the witnesses, one of

24 the identification witnesses in this case, had spent

25 that time period at the pertinent place?

Page 621

1 A. Well, I'm not sure who you're referring to,

2 but if you're referring to Witness D, then it's my

3 recollection from the statement I read that his

4 experience might have spanned three days, but I'm not

5 sure --

6 Q. Yes, that's my question. So then you

7 understand that Witness D was with the alleged accused

8 during this three-day period?

9 A. I understand that he has, in his statement,

10 various comments about the accused.

11 Q. Do you understand that he was with the

12 accused during that three-day period, Dr. Loftus?

13 A. Well, I don't know if he was or not, because

14 I was focusing on his recollections about what went on

15 in, I guess what's been referred to as, the pantry.

16 Q. So, Dr. Loftus, you haven't been informed

17 that there has been recognition, identity of the

18 accused by that witness?

19 A. Well, it's my understanding that Witness D

20 knows the accused, served with him in the army and

21 knows who he is, knows his name, and that stranger

22 identification isn't relevant in that case.

23 Q. Well, you understand that there has been

24 identification then?

25 A. Right.

Page 622

1 Q. Yes, okay. Are you also informed that the

2 time period of Witness A is longer than a two-minute

3 span that is similar to the time period in your

4 experiments?

5 A. Well, it's certainly my impression from

6 reviewing her statements that her experiences did span

7 quite a bit longer.

8 Q. Are you aware of when the weapon came out

9 during the incident that involved Witness A?

10 THE INTERPRETER: Could you please slow down

11 for the interpreters between the questions and

12 answers?

13 JUDGE MUMBA: I'm sorry to interrupt you.

14 The interpreters would like to have gap between your

15 questioning and the answers of the witness for

16 interpretation.

17 MS. SELLERS: Excuse me.

18 A. A pause?

19 JUDGE MUMBA: You can go ahead.

20 MS. SELLERS:

21 Q. We're both speaking English and they are

22 interpreting it.

23 I asked were you aware of the -- excuse me.

24 Can I just read back the last question? Were you aware

25 when the weapon came out in the incident with Witness

Page 623

1 A?

2 A. It's my understanding that Witness A was

3 threatened with a weapon, perhaps on more than one

4 occasion.

5 Q. But you don't know how much time passed prior

6 to the weapon coming out in the incident, do you?

7 A. No.

8 Q. You don't know how much time elapsed when the

9 weapon had been produced, do you?

10 A. No, I don't.

11 Q. And you don't know how much time occurred

12 between the different appearances of the weapon when

13 Witness A was there, do you?

14 A. No, I don't.

15 Q. I believe you often stated or you have

16 testified that there is a core of details that can be

17 remembered during even violent situations, and the

18 peripheral details tend to fade away; is that correct?

19 A. That's correct.

20 Q. Now, would you say a core detail might be the

21 presence of someone who is interrogating you or

22 threatening you or your children with death?

23 A. Well, it's hard to know whether that is a

24 core detail or a peripheral detail.

25 Q. But let's say in an interrogation, would that

Page 624

1 be a core detail?

2 A. It might be a person who is threatening you,

3 but it's exactly that kind of -- that is the kind of

4 detail in the weapon focus studies that showed up being

5 impaired when a weapon was present.

6 Q. But not when a weapon was not present; is

7 that correct?

8 A. I can only point to the studies themselves

9 that show that even the face of the person holding the

10 weapon was impaired in the studies involving weapon

11 focus. So while it might be considered a central

12 detail, the face of somebody, especially relative to

13 other details, it can still be influenced by the stress

14 and the focus on some objects, some other objects.

15 Q. Right. Would you agree that prior to a

16 weapon appearing there is no weapon focus?

17 A. Right, right.

18 Q. That's common sense, I think. Dr. Loftus, I

19 just want to ask you that you cannot state, you cannot

20 testify, that Witness A was mistaken in her

21 identification, can you?

22 A. No, of course I can't say whether she was

23 wrong --

24 Q. Thank you.

25 A. -- or right.

Page 625

1 Q. Also, you cannot state, you cannot testify,

2 whether Witness D was mistaken in his identification,

3 can you?

4 A. I don't think I was commenting on Witness D's

5 identification. Witness D might be accurate in his

6 recounting of who was present at particular episodes,

7 but it is even possible that both of these individuals,

8 who are giving different versions, might have some

9 distortion in their recollection.

10 Q. But you can't testify that his identity was

11 mistaken, can you?

12 A. Well, I don't believe that my testimony here

13 had much to do with the identification abilities, as

14 far as the defendant goes, of Witness D, since it's my

15 understanding that these two individuals knew each

16 other and --

17 Q. So, therefore, you would probably support his

18 identification or his recognition; correct?

19 A. Well, to use the distinction that has been

20 used by the Tribunal before, it's recognition rather

21 than identification.

22 Q. Right. Thank you very much, Dr. Loftus.

23 MS. SELLERS: I have no further questions,

24 Your Honours.

25 JUDGE MUMBA: Any re-examination?

Page 626

1 MR. DAVIDSON: None, Your Honour.

2 JUDGE MUMBA: Thank you very much. Is there

3 any objection to the witness being released?

4 MS. SELLERS: None on the part of the

5 Prosecution, Your Honour.

6 MR. DAVIDSON: None, Your Honour.

7 JUDGE MUMBA: Thank you very much, Dr.

8 Loftus, for giving evidence before the Tribunal. Thank

9 you very much. You are now released. You are free to

10 go.

11 (The witness withdrew)

12 JUDGE MUMBA: The Defence? Is that the

13 closure of your case?

14 MR. MISETIC: Yes, Your Honours, the Defence

15 rests.

16 JUDGE MUMBA: Ready to move on to closing

17 arguments?

18 MR. MISETIC: Well, we have then a matter for

19 sentencing. I don't know whether we do that before or

20 after closing argument.

21 JUDGE MUMBA: No, no, no, before,

22 definitely.

23 MR. MISETIC: We wanted to make a couple of

24 things -- clarify a couple of points. One, any

25 testimony given as part of a sentencing is not to be

Page 627

1 used in the case of chief; is that a correct

2 understanding?

3 JUDGE MUMBA: I didn't get you.

4 MR. MISETIC: This is just purely for

5 sentencing purposes. It is not part of the underlying

6 cases; isn't that correct?

7 JUDGE MUMBA: Which evidence, from this

8 witness?

9 MR. MISETIC: Yes, that the next witness is

10 about to give.

11 JUDGE MUMBA: Yes, yes, for sentencing, yes.

12 MR. MISETIC: But not for anything that --

13 JUDGE MUMBA: No, no, no, just for

14 sentencing.

15 MR. MISETIC: The second thing is: I

16 disclosed the identity of the witness to Mr. Blaxill at

17 approximately 9.30 this morning. We wanted to avoid a

18 situation where they may need time to investigate the

19 witness, et cetera, after he has already given

20 testimony. And we would like to clarify at this point,

21 if they need a break or a pause before I go into the

22 direct examination to prepare, et cetera -- I

23 anticipate that this examination will not last longer

24 than ten minutes.

25 JUDGE MUMBA: Mr. Blaxill?

Page 628

1 MR. BLAXILL: Yes, Your Honours, with the

2 clear understanding that this would be an issue of

3 evidence, I understand to be character evidence, that

4 would be considered in the event of conviction as a

5 matter of mitigation, clearly the approach of the

6 Prosecution to the witness would be considerably

7 different as to if it was evidence in chief in

8 relation, in any sense, to the issues of guilt or

9 innocence.

10 We might call or request, Your Honours, for a

11 brief recess if, indeed, anything arises that would

12 require that. I would be thinking in terms of minutes,

13 nothing more.

14 JUDGE MUMBA: After the

15 examination-in-chief?

16 MR. BLAXILL: After the

17 examination-in-chief.

18 JUDGE MUMBA: Before you cross-examine?

19 MR. BLAXILL: Indeed. We may not even need

20 to do that, and we may not even cross-examine. I don't

21 know at this point.

22 JUDGE MUMBA: It is clearly evidence which

23 will go to sentencing only, not to the issues.

24 MR. BLAXILL: I'm content with that

25 situation, Ma'am.

Page 629

1 JUDGE MUMBA: Yes. You may proceed, Mr.

2 Misetic.

3 MR. MISETIC: May we have the witness brought

4 in, please?

5 JUDGE MUMBA: I want to find out, Madam

6 Registrar, the transcripts are in such a mess. It's

7 not working properly. The sentences are incoherent.

8 Are we still having a problem?

9 MR. BLAXILL: I can advise Your Honours that

10 my screen certainly has gone completely haywire. I'm

11 getting all sorts of nonsense on the transcript.

12 JUDGE MUMBA: But are the laptops okay?

13 MR. BLAXILL: Yes, Madam President.

14 JUDGE MUMBA: The laptops are all right, so

15 we'll rely on the laptops, I think. We can proceed.

16 Modern technology.

17 (The witness entered court)

18 JUDGE MUMBA: May the witness make the solemn

19 declaration while standing, please? Witness, can you

20 be standing up, please?

21 THE WITNESS: I solemnly declare that I will

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

23 truth.

24 JUDGE MUMBA: Thank you. Please proceed.

25 WITNESS: DRAGAN STRBAC

Page 630

1 Examined by Mr. Misetic:

2 Q. Good morning, sir. Would you please state

3 your name for the record? Would you please --

4 MR. MISETIC: Does he have the right channel?

5 A. Yes.

6 Q. Would you please state your name for the

7 record?

8 A. Dragan Strbac.

9 Q. Where do you live?

10 A. In Vitez, Bosnia-Herzegovina.

11 Q. Have you always lived in Vitez?

12 A. Yes.

13 Q. Have you always lived in the same location in

14 Vitez?

15 A. No. Today I live in the town of Vitez. And

16 until the war, I lived in Dubravica, which is now under

17 the control of the BiH army.

18 Q. What is your business or occupation?

19 A. Now I work in the sector for civilian defence

20 in the Federal Ministry of Defence in Sarajevo.

21 Q. Do you know the defendant, Anto Furundzija?

22 A. Yes.

23 Q. How long have you known Anto Furundzija?

24 A. Basically since we were children, since we

25 were born really, because we lived in the

Page 631

1 neighbourhood.

2 Q. Where was that neighbourhood?

3 A. In Dubravica, in Dubravica, the municipality

4 of Vitez.

5 Q. Do you know Anto Furundzija's parents?

6 A. Certainly.

7 Q. Are they still alive?

8 A. The mother is still alive and the father was

9 killed in 1993, sometime in August or September. He

10 was killed by the Muslim units as a civilian, of

11 course.

12 Q. Do you know where Mr. Furundzija's mother

13 lives now?

14 A. Yes, yes, I know. She lives as a refugee in

15 a privately owned home in Vitez.

16 Q. To your knowledge, does Mr. Furundzija have

17 any brothers or sisters?

18 A. No brothers. He only has two sisters.

19 Q. How old are his sisters, if you know?

20 A. The older sister is three or four years older

21 than Anto, and the younger one is two or three years

22 younger than Anto. I'm not too sure.

23 Q. Was Mr. Furundzija ever married and does he

24 have any children?

25 A. Yes, he was married and he has a child.

Page 632

1 Q. Is that a boy or a girl, and do you know the

2 age of that child?

3 A. A girl, approximately three years old, up to

4 three.

5 Q. When you were growing up in Dubravica, did

6 you have any occasion to visit in Anto Furundzija's

7 home?

8 A. Yes.

9 Q. Did he visit your home?

10 A. Yes.

11 Q. What kind of things did you do together in

12 childhood?

13 A. Well, like all neighbours, we visited each

14 other and we were friends. And as we grew up, you

15 know, I'm a bit older than he is, I played a bit of

16 basketball. I still play basketball. I've been

17 playing for the past 20 years or so. And he started

18 playing basketball since he was very young too,

19 together with me. So most of the time -- we would

20 spend most of our time on sports grounds playing

21 basketball.

22 And after that, I went to university in

23 Zenica, that was in 1984, and at the same time, he

24 started high school in Zenica. So we would see each

25 other every day on the bus to and from Zenica, which

Page 633

1 means that we spent quite a bit of time together.

2 Q. To your knowledge, what was the extent of

3 Mr. Furundzija's formal education?

4 A. A secondary technical school, I think,

5 specialising in transportation.

6 Q. After school, what, if anything, did

7 Mr. Furundzija do for a living?

8 A. At that time when we graduated, both of us,

9 more or less, at the same time and, of course, in

10 different fields, there weren't any jobs available. So

11 he had to go abroad to make some money, like all young

12 men did. And, of course, young people, particularly,

13 wanted to do this. He went to Switzerland and he spent

14 some time there, and then he returned to Vitez sometime

15 in '91 approximately.

16 Q. Do you know how long he was in Switzerland?

17 A. Well, up to a year, about a year.

18 Q. When he returned sometime in 1991, what did

19 he do?

20 A. It was towards the end of 1991. After he

21 came back, the fighting had already broken out, and

22 Slovenia was more or less over. And in Croatia, it had

23 gone pretty far, and Anto joined the Territorial

24 Defence of Vitez.

25 Q. To your knowledge when you knew

Page 634

1 Mr. Furundzija, did he favour one ethnic group over

2 another? Would you describe him as a nationalist?

3 A. Never, by no means. Never did he show, in

4 any way, that he favoured one nationality over another.

5 Q. Do you know where Anto Furundzija was between

6 October of '92 and October of '94?

7 A. Anto joined -- you mean 1992? Anto joined

8 the Croatian Defence Council of the municipality of

9 Vitez.

10 Q. In October of 1994, where were you living at

11 the time?

12 A. In Vitez, in the town of Vitez.

13 Q. Do you know where Anto Furundzija was living

14 at that time?

15 A. Yes. He lived with his mother and his

16 family, as I said a few minutes ago, in a briefly owned

17 home as a refugee.

18 Q. Approximately when was the last time you saw

19 Mr. Furundzija?

20 A. Well, approximately two weeks before he was

21 arrested.

22 Q. At any time during your relationship with

23 Mr. Furundzija have you heard anything of a negative

24 nature as to Mr. Furundzija being anything other than

25 an honest and law-abiding citizen?

Page 635

1 A. I never heard anything bad about him, nor did

2 I ever have any kind of bad experience when I was in

3 the company of Anto. On the contrary. Anto was an

4 exemplary boy to all, fair, well-liked by his peers,

5 communicative, vivacious, and that's why we all liked

6 him.

7 Q. Do you have an opinion of Mr. Furundzija with

8 respect to him being an honest and law-abiding citizen?

9 A. Very honest and fair man.

10 Q. Do you know if Anto Furundzija has ever been

11 arrested for a crime?

12 A. I'm not aware of that.

13 MR. MISETIC: We have nothing further, Your

14 Honours.

15 JUDGE MUMBA: Prosecution?

16 MR. BLAXILL: Yes, if you please, Your

17 Honours, I do have just a few questions.

18 Cross-examined by Mr. Blaxill:

19 Q. When you say, in 1992, in Vitez,

20 Mr. Furundzija was serving in the TO, the Territorial

21 Defence, did you enter any military service at that

22 time?

23 A. Not military service. Since 1991, I have

24 been working as the head of the Department for Civilian

25 Defence in the municipality of Vitez where I stayed

Page 636

1 throughout; that is to say, throughout all the fighting

2 in 1993 and 1994. And then, in 1994, I continued to

3 work as the head of the Department for Civilian Defence

4 in the MUP, the Ministry of the Interior; and then in

5 '96, yes, that's right, in 1996, I was transferred to

6 the Ministry of Defence as head of department, and now

7 I work as an associate in the field of civilian defence

8 in the Federal Ministry of Defence in Sarajevo.

9 Q. You have said that Mr. Furundzija was in no

10 way a nationalist, but is it not correct that he

11 changed sides from the TO, of the government

12 Territorial Defence, and then joined the HVO, which

13 was, I understand, a nationalist movement?

14 A. Well, I don't think that the HVO is a

15 nationalist movement. On the contrary. At that time,

16 joining the Territorial Defence only shows that Anto

17 was not of a nationalist orientation at that time

18 because at least at that time the Territorial Defence

19 was an institution which brought together all

20 nationalities, all ethnic groups. So because of his

21 very own position and views, Anto joined that group.

22 But due to general developments in Vitez, Anto was

23 probably compelled to change from one component to

24 another in 1992.

25 I believe that Anto did not do this because

Page 637

1 he believed that the HVO was above the Territorial

2 Defence. It is the events themselves, political and

3 military events, that were occurring at the time,

4 probably forced him to do so. That's what I think.

5 Q. Were you familiar with the unit "the Jokers"?

6 A. I heard about them.

7 Q. Would it be true to say that they had a

8 reputation of being certainly very tough and

9 resourceful soldiers?

10 A. I can't really say what kind of reputation

11 they enjoyed. It was a special unit. I don't know

12 what kind of reputation they had, at least I'm not in a

13 position to speak about that.

14 Q. So it would be fair to say then that you have

15 no direct knowledge of the activities of the Jokers or

16 Mr. Furundzija whilst he served with them?

17 A. No, because I was so busy on my own in the

18 field of civilian defence and taking care of civilians

19 in general, that our activities were really separate

20 from one another, so I didn't have any opportunity to

21 be in contact with the Jokers or any other military

22 units because I was dealing with problems related to

23 the civilian population.

24 MR. BLAXILL: I have nothing further. Thank

25 you, Your Honours.

Page 638

1 JUDGE MUMBA: Thank you. Any

2 re-examination?

3 MR. MISETIC: No, Your Honours. We'd ask

4 that the witness be released.

5 JUDGE MUMBA: Any objection?

6 MR. BLAXILL: No.

7 JUDGE MUMBA: Thank you very much for coming

8 to The Hague to give evidence. You are now released.

9 You are free to go.

10 (The witness withdrew)

11 JUDGE MUMBA: Are the parties ready for

12 closing arguments? Have you closed your case for the

13 sentencing?

14 MR. MISETIC: Yes, I have, Your Honours. I

15 believe we closed before the sentencing evidence.

16 JUDGE MUMBA: Before this one, just one

17 witness.

18 MR. MISETIC: Yes. And we have closed the

19 sentencing evidence now, yes.

20 JUDGE MUMBA: Thank you. Are we ready?

21 MR. BLAXILL: There was just one point, Your

22 Honours. Certainly, if the court desired, we are in a

23 position to make certain comments regarding the issue

24 of sentencing, matters of principle or from the rules

25 or from previous jurisprudence in the Tribunal, but we

Page 639

1 have no intention of calling evidence in respect of

2 sentencing. So if that helps the court in scheduling

3 the way forward, that might be of assistance.

4 JUDGE MUMBA: You mean you would make your

5 general comments as part of your closing arguments?

6 MR. BLAXILL: In essence, although my

7 co-counsel and I have divided that duty between us and

8 the sentencing issue, I would ask leave to address you,

9 but it is very brief and it, as I say, involves no

10 evidence.

11 Unless you would -- sorry, Your Honours. I

12 was going to say, unless you would like me to commence

13 with that and join it to what has just gone on, as we

14 move into that mode?

15 JUDGE MUMBA: It is up to you how you arrange

16 it, whichever, because they are separate parts.

17 MR. BLAXILL: Indeed. But as the sentencing

18 exercise has proceeded in respect of that part for the

19 Defence, I am quite happy to make the observations for

20 the record now. Then my learned friend can close for

21 the Prosecution.

22 JUDGE MUMBA: Yes.

23 MR. BLAXILL: As I've indicated to Your

24 Honours, there is no proposal by the Prosecution to

25 call evidence in relation to sentencing.

Page 640

1 THE INTERPRETER: Can the speaker please slow

2 down?

3 JUDGE MUMBA: Louder and slower.

4 MR. BLAXILL: With regard to the issue of the

5 gravity of the crime if proven and a conviction ensues,

6 the Prosecution simply refer Your Honours, with

7 respect, to the evidence essentially of Witnesses A and

8 D. I think that covers all issues of gravity.

9 The status of an accused is a matter that has

10 raised itself and is one you will be able to resolve

11 from the issues as to his seniority and relative time

12 served and status as a soldier, which would impact, of

13 course, on his personal conduct in terms of the degree

14 to which, although ignorance is no defence, one's

15 experience is something that obviously influences the

16 degree to which you should be familiar with the laws of

17 war that apply to your conduct and your duties.

18 I will move on, Your Honours, very briefly to

19 the effects and the factors in Rule 101 of the Rules of

20 Procedure and Evidence, and 101B, wherein particularly

21 the Trial Chamber may take account of such factors as

22 aggravating circumstances; mitigating circumstances,

23 including substantial cooperation with the Prosecutor

24 before or after conviction by the person concerned; the

25 general prison sentencing practice in the former

Page 641

1 Yugoslavia, and any sentence served that has been

2 imposed by a State court arising from a conviction for

3 the same act, and this reflects essentially also

4 Article 24 of the Statute of the Tribunal regarding

5 penalties.

6 Your Honours, if I can examine these in

7 brief?

8 Firstly, the gravity of the offence in terms

9 of aggravating circumstances. Of course, the offence

10 of torture in itself is a serious offence, and where

11 this involves, at its basis, serious mental or physical

12 suffering, one would then rely upon the facts as to the

13 extremities of that suffering to give an indication,

14 both in terms of duration and the nature of the acts,

15 as to the gravity. The Prosecution would say that if

16 all stands proven at the end of the day, this goes to

17 the heavier end of gravity for an offence of torture.

18 As for outrages upon personal dignity, again,

19 perhaps if the allegations at the end of the day stand

20 that rape is involved here, we have probably the most

21 severe form of outrage upon personal dignity, and the

22 physical, personal, and sexual integrity of the victim.

23 The aggravating circumstances might well be

24 that not only the nature and gravity of the acts

25 perpetrated but the very fact of the presence of

Page 642

1 others, other soldiers present during virtually the

2 entirety, indeed the entirety of the events of that

3 day, and the fact of allowing, as the Prosecution have

4 alleged, another, encouraging, aiding and abetting

5 another to behave towards the detained victim to the

6 level of a series of rapes, is a serious aggravating

7 dimension.

8 With regard to mitigating circumstances,

9 clearly, Your Honours, the Prosecution's submission is

10 that there would be none. Mitigation requires, in any

11 event, some expression of contrition, it would possibly

12 be a mitigation if there be a plea of guilty. There

13 are other mitigating factors, but when one clearly

14 fights a case to its conclusion on the basis of not

15 guilty, the question at that stage of mitigation is, I

16 respectfully suggest, not relevant -- or not

17 applicable, I would say.

18 With regard to the sentencing practice in the

19 former Yugoslavia, I am not aware of any particular

20 sentencing passed in the courts of that country, or now

21 those countries, in relation to an offence of this

22 nature, but I suffice it to say, by reference to the

23 decisions in the Tadic case in the sentencing judgement,

24 that the most directly applicable provisions of the

25 former Yugoslavia appeared to be in Chapter 16 of the

Page 643

1 SFRY penal code. Therein, under the titles "Crimes

2 Against Peace and International Law," there are

3 provisions relating to sentence for crimes involving

4 killings, tortures, inhumane treatment of civilian

5 population, causing great suffering or serious bodily

6 injury to body or health, amongst other crimes.

7 Discussed by the Tadic Chamber, Your Honours,

8 the Article 3 crimes had been linked to that particular

9 Article of the penal code due to the common

10 relationship between Common Article 3 running across

11 the Geneva Conventions, since Article 142 had specific

12 applications to the Geneva Conventions. Let us say the

13 commencing parameters within that Article are quite

14 wide.

15 Under the laws of Article 142, the reality is

16 that such a crime shall be punished by "no less than

17 five years' strict imprisonment or by the death

18 penalty," since that remedy still appertains in that

19 former jurisdiction. Clearly, the latter is totally

20 inapplicable within the remit of this Tribunal and

21 rightly so, but it does indicate that at the top end of

22 such sentencing, within the scope of that Article of

23 the SFRY penal code, the reality is that, as it were,

24 the maximum is a potential option to the court.

25 As regards anything else, the Prosecution

Page 644

1 would say that we are not at this time possessed of any

2 specific information as to the detriment of the

3 character of Mr. Furundzija in terms of any previous

4 convictions. No such information is to hand.

5 I would simply then advise you, of course, at

6 the end of the day, take into account time served, and

7 would just simply remind the Honourable Chamber that

8 Mr. Furundzija came into custody on the 18th of

9 December, 1997.

10 Those are the only representations I propose

11 to put before Your Honours in relation to the issue of

12 sentencing.

13 JUDGE MUMBA: Thank you. The other part?

14 MS. SELLERS: Your Honour, then we will

15 proceed to our closing argument?

16 JUDGE MUMBA: Yes.

17 MS. SELLERS: I would like to say good

18 morning again, Your Honours.

19 This trial has been historical, not because

20 of the, come now, what will be known as the shortest

21 trial before an International Tribunal, nor because it

22 has been the most complex in terms of political or

23 military strategy or analysis, but the case of the

24 Prosecutor versus Anto Furundzija, which is before this

25 Honourable Trial Chamber, is an important case within

Page 645

1 the mandate of the International Criminal Tribunal for

2 the former Yugoslavia. This case will bring justice to

3 persons, particularly in this case a woman, who was

4 caught in the cruel conflict in the former Yugoslavia.

5 Your Honours, I would remind you, although I

6 think one need not be reminded, that this case calls

7 the simple rendering of justice. Simple justice, as

8 Thurgood Marshall used to say, but in our instance

9 would be for the violation of the laws and customs of

10 war, particularly that were committed in the Lasva

11 Valley, or more specifically at the Joker headquarters

12 on or about May 15th, 1993.

13 The Prosecutor has submitted witness

14 testimony that, in our view, proves beyond a reasonable

15 doubt that Anto Furundzija should be found guilty of

16 torture, outrages upon personal dignity, including

17 rapes, as prohibited by Article 3 of the Statute. The

18 evidence assuredly ushers no other conclusion.

19 The basis of the present case, some very

20 fundamental features and facts, and I would say legal

21 constructs, have been uncontested by the Defence. The

22 Prosecution led evidence that proves the existence of

23 an armed conflict. The armed conflict occurred between

24 the Croatian Defence Council, which we have commonly

25 referred to as the HVO, and the army of

Page 646

1 Bosnia-Herzegovina in the municipality of Vitez, and

2 this all occurred during the time period of the alleged

3 crimes. During that armed conflict, civilians were

4 killed, houses were burned, and families were forced to

5 flee.

6 On or about the morning, but one can say here

7 specifically the morning of April 16th, 1993, Anto

8 Furundzija, a member of the Joker unit of the HVO,

9 together with other armed and uniformed soldiers,

10 entered Ahmici, part of the Vitez municipality, and

11 participated in that armed conflict. The record will

12 show that Anto Furundzija's military responsibility

13 that day concerned the expulsion of a former female

14 classmate and her mother. They were both Muslims.

15 They were told, forced at gun point, to leave their

16 homes. That witness has clearly identified Anto

17 Furundzija.

18 She was a former classmate who pleaded with

19 the accused, while he stood in stoney silence, not to

20 leave her home. Her evidence was wholly credible,

21 uncontested by the Defence.

22 The testimony of Dr. Mujezinovic, former

23 member of the crisis staff and former president of the

24 Bosnian war presidency, described the length and,

25 finally, the process of negotiation in settlement of

Page 647

1 the armed conflict. He also described an armed

2 conflict that did inflict death, detention, expulsions,

3 rapes, and terrorisation of the Muslim population in

4 the Lasva Valley. He assessed this conflict from the

5 power take-over in 1992 to the full-blown war in 1993,

6 and finally, what was called the cessation of

7 hostilities that occurred in 1995. Anto Furundzija

8 took part in this conflict.

9 Prosecution witnesses, such as

10 Dr. Mujezinovic, Witness B, Witness C, Mr. Kavazovic,

11 testified about the existence of this conflict, and the

12 active participation within the HVO of a special unit

13 or force called the Jokers. Members of this unit were

14 wounded in conflict; they were taken to the hospital

15 where Dr. Mujezinovic was ordered to work.

16 The Jokers were part of the armed forces that

17 searched apartment buildings, particularly those

18 apartments of Muslims. The Jokers arrested and

19 detained, interrogated other members of the HVO and the

20 Muslim population. The Jokers transported and forced

21 civilians to dig trenches near the front-line. They

22 formed part of the ominous military presence in the

23 city of Vitez.

24 The very name appeared to instil fear,

25 according to our testimony, within the Muslim

Page 648

1 population. The unit obtained a notoriety. The

2 stories centred on their headquarters often, a place

3 called "the Bungalow," generally referred to as a

4 bungalow because it used to be a restaurant. Now it

5 had become a military headquarters. And Anto

6 Furundzija was a recognised member of the Jokers. This

7 evidence has been uncontested, Your Honours.

8 We would state that the Prosecution has

9 entered ample testimony and proof beyond a reasonable

10 doubt of what we call these foundational measures.

11 Then on or about May 15, and it was pleaded

12 "on or about May 15th, 1993," the evidence shows that

13 Witness A was arrested, detained, and transported to

14 the Bungalow.

15 Now, I would like to say one word about the

16 time factor. As pleaded in "on or about," the Defence

17 would make us think that these events did not occur on

18 May 15th. We would readily agree. Maybe they didn't

19 occur on May 15th. But for the Defence to put forward

20 evidence to say that, due to the date the events did

21 not occur, is wholly incredulous. The Defence cannot

22 raise any inference that the crimes did not occur, and

23 certainly the Defence, up until this point in time, has

24 not raised any evidence or presented to us the

25 existence of an alibi that the events did not occur or

Page 649

1 they did occur but that the accused was not present.

2 So, therefore, during this time period, the

3 evidence shows that Witness A was arrested, taken to

4 Nadioci where the former restaurant known as "the

5 Bungalow" stands. Only now, it is the headquarters

6 compound of the Joker unit.

7 Now, Witness A testified that she was removed

8 from her car and led by a uniformed Joker past the main

9 building; she was taken directly to the sleeping

10 quarters of the Joker headquarters. The room was

11 filled with beds and bunks, and there were roughly

12 maybe about 40 uniformed and armed members of the

13 special HVO forces, the Jokers, there.

14 Now, it is important to note that the Joker

15 member did not need to inquire or stop in the main

16 building. He knew he was to lead Witness A directly to

17 the barracks, knowing that she was to be arrested,

18 brought not to the main building, taken to the sleeping

19 headquarters, the barracks, of the Joker unit, and told

20 to wait. And then, Your Honours, I would submit the

21 tragedy really began.

22 Now, one might want to look at this almost as

23 if it were theatrical, but it is tragedy nonetheless.

24 We have Anto Furundzija, who is the director and the

25 actor, and although he is not always present on the

Page 650

1 scene, might I just show you what the evidence has

2 shown within this Trial Chamber?

3 Witness A was told to wait. While waiting,

4 the Joker members who surrounded her mentioned that

5 "the boss" was coming, then started saying the name

6 "Furundzija," and the accused, duly identified in

7 court, appears. He begins by saying, "Now, lady,

8 interrogation." But he knew she was there, he knew she

9 had been arrested, he knew what he was going to

10 interrogate her about, and he knew the other Jokers

11 were in the room.

12 So he began the interrogation. He controlled

13 the dialogue. He offered threats against her sons,

14 threatened to kill them. He didn't encourage her to

15 tell the truth. He threatened what would happen if she

16 didn't tell the truth.

17 There came a time period during this

18 interrogation that Witness A was forced to remove all

19 of her clothes and to remain nude during the controlled

20 questioning. The unrehearsed victim at this point was

21 subjected to a knife --

22 MR. MISETIC: I apologise for interrupting,

23 Your Honours. Our computers are now completely down.

24 Apparently it's mine then. If someone could assist me

25 here?

Page 651

1 JUDGE MUMBA: Aren't the laptops working?

2 MR. MISETIC: I'll look on with Mr. Davidson

3 so we don't have a pause here, but if they could

4 perhaps come and try to fix it in the meantime? Thank

5 you.

6 JUDGE MUMBA: So we can proceed?

7 MR. DAVIDSON: Yes, Your Honour.

8 MS. SELLERS: As I stated, the knife was

9 rubbed up and down Witness A's body by another member

10 of the Joker unit when the accused Anto Furundzija was

11 not only present but was still saying his lines, still

12 interrogating.

13 What was the reason for the knife? What was

14 the reason for such a physical threat during the

15 interrogation after the mental threats, threats to kill

16 one's sons, had occurred?

17 The witness testified, Witness A, that the

18 person who held the knife threatened to cut out her

19 vagina, a threat of a bodily sexual mutilation, during

20 the questioning by Anto Furundzija.

21 There has been testimony too that the

22 witness, in this nude state, among the other Jokers,

23 was forced to dance. I would ask the court to look at

24 the public in this tragedy, theatrical display, the

25 other Jokers who were around. It was not an innocent

Page 652

1 or naive or incidental public, they were members of a

2 group who very well understood, when one of their Joker

3 members conducted an interrogation with a forced nude

4 Muslim woman with threats of death and mutilation

5 before them, that this was a strong, strong

6 interrogator. This was a serious unit. This

7 interrogation is held in a bedroom barracks.

8 The intensity of the questioning, the

9 intensity of the other acts that were performed, the

10 admissible sexual assault evidence that the court will

11 allow in at this point concerning Witness A, could only

12 have been intentionally caused, and did cause mental,

13 severe mental suffering, as required under torture.

14 Then there is testimony that the accused left

15 in disgust. But was he disgusted at the humiliation,

16 the degradation? No, it appears that he was disgusted

17 at the lack of the unrehearsed victim to participate

18 with the correct answers, with the truth in his

19 interrogation.

20 So the record shows that he left and that

21 Witness A remained with whom I will refer to, and I

22 think this is a title given by learned counsel before,

23 let's say "Accused B."

24 Now, when Anto Furundzija left the room, he

25 certainly had seen everything that occurred in the room

Page 653

1 prior to leaving. He certainly knew that Witness A

2 remained in the room forcibly naked, forcibly

3 frightened. He probably could also understand that her

4 (redacted)

5 necessarily a situation in which she would find

6 comfort. He had been present. He had seen. He had

7 controlled the first part, and I would allege this is

8 the first part of the interrogation.

9 But Anto Furundzija had other things to do.

10 Anto Furundzija was not getting the answers that he

11 wanted from this victim. How dare she?

12 Well, we can continue. Let's go to the

13 second act. The director moved offstage. Other actors

14 continued. And then word was sent, and the transcript

15 does show that another soldier came in and then

16 (redacted)

17 told them, and they followed the instruction, both of

18 them, "Let's move over to the pantry."

19 Now, what I should explain is happening and

20 what the record clearly shows is that during this time

21 period and before this time period, we have another

22 unrehearsed victim, but let's say "witness," Witness D,

23 who, during a three-day period, has been arrested and

24 detained by the Joker unit in the Bungalow. Jokers do

25 do this. The evidence also shows that while he was

Page 654

1 detained, the accused, who he readily could identify,

2 was at the Bungalow while he was being interrogated,

3 let's say "debriefed," concerning a prior stay with the

4 Muslim army. Witness D had been in the hands of the

5 Muslim army and then, soon upon his release, was

6 arrested by the Jokers to find out whether anything had

7 been said about the Jokers to the Muslims.

8 But he wasn't the only one there. Even the

9 Defence produced a witness that showed the same

10 scenario: Arrested by the Muslim army, then picked up

11 by the Jokers, taken to the Bungalow to be "debriefed,"

12 to give a statement.

13 The only difference between the two

14 witnesses -- and I would allege that there are some

15 differences -- is that Witness E from the Defence came

16 in, obviously wrote his statement or agreed with the

17 statement, whereas Witness D, Witness E says, wrote a

18 statement, but they wanted Witness D for something

19 else. Maybe he could participate a bit further.

20 So during a three-day period, Witness D is

21 held within the Joker compound and brutally beaten on

22 his body and beaten around the head. Even

23 Witness E will say that, "Yes, we saw a bottle smashed

24 (redacted)

25 time period, beat him up."

Page 655

1 I understand that Witness E might not have

2 given all of the details that even Witness E witnessed,

3 because at that time period he was busy for 35 minutes

4 filling out his statement, and during the other 18

5 hours, while he stayed awake the whole time, I imagine

6 he wasn't in a position to see, or maybe Accused B is

7 not someone to be tangled with.

8 I think Witness D would certainly understand

9 (redacted)

10 intentionally inflicted mental and physical harm, a

11 person who had a reputation, who was known,

12 particularly among that Joker unit within that

13 Bungalow, within that compound, with people who came

14 outside and who were not Jokers, that this was a person

15 who inflicted mental and physical pain.

16 So let's go back to our scenario. Anto

17 Furundzija has left the first part of a two-part

18 continuing interrogation rather disgusted at the

19 witness, the victim, went back, and who does he now

20 bring into the scene? Witness D. But why bring in

21 Witness D when you're trying to get information from

22 Witness A about her sons or about other members of the

23 Croatian army? Because Witness D is a member of the

24 HVO who had guarded the house of Witness A. He is

25 confronted, delivered by Anto Furundzija because

Page 656

1 Witness A must speak.

2 Now, as Anto Furundzija leads Witness B back

3 to what is referred to as the pantry, and, yes, there

4 might be differences in how one entered the building

5 and there might be differences about the light being on

6 or the light not being on, there is absolutely no

7 disputed evidence that Anto Furundzija did not go get

8 Witness D and lead him to the pantry to confront

9 Witness A. He knew Witness A would be in the pantry

10 because he had already sent someone to have her moved

11 there. He knew that Accused B would be in the pantry.

12 The person came in and said, "We're moving over." So

13 therefore, he went directly to the pantry with

14 Witness D and said something to the effect, "Now let's

15 see who will talk, who will confess."

16 He was not surprised to see Witness A

17 continued in a state of nudity covered by a blanket.

18 He was not surprised to see Accused B. He certainly

19 wasn't surprised to see the condition of Witness D.

20 He returned to his role of interrogator, and

21 Witness A clearly hears the continuation of the

22 questions. Is she focused on him and was she focused

23 on him in the first room? I believe she was. This was

24 the person who controlled her life and her death, who

25 controlled the other Jokers, who controlled the

Page 657

1 scenario.

2 Did she recognise him in the second room?

3 Even if we believe that the room was dark, that she

4 didn't get a chance to look at him, would she forget

5 that voice that within that very day had threatened to

6 take away what is possibly the most precious things she

7 has during this war, her two army-aged sons? But I

8 don't think that we even have to necessarily pry into

9 that too much because we have Witness D who has been

10 with the accused for three days, who readily just

11 recounts, "Yes, I was taken to the pantry by Anto

12 Furundzija," and, once again, we have the interrogation

13 verbally which is combined with the acts.

14 Now, it is very interesting that I find that

15 three witnesses, one called by the Defence, two called

16 by the Prosecution, one a witness who I think the court

17 understands was not a ready witness but who did come to

18 testify. I'm referring to Witness D. They all

19 describe the exact same manner of the beating that

20 occurred in the second room. These witnesses had no

21 contact. I have no information that Witness E

22 contacted Witness D subsequent to these events. And

23 there has been testimony that there's been absolutely

24 no contact between Witness A and D. They didn't even

25 know whether the other were still alive.

Page 658

1 But the beating of the feet from the top, not

2 the soles, which most people might think is common, but

3 they call describe the manner in which the feet were

4 beat. Maybe it's a Joker technique, but it's a

5 technique that occurred in the pantry on that day.

6 And then, because Witness A still didn't

7 please the interrogator, Anto Furundzija, Accused B

8 started to sexually assault her. What was the nature

9 of the sexual assaults? Your Honour, we would say that

10 they were rape under international law, that they were

11 the forcible sexual penetration of Witness A's vagina,

12 her mouth. She was asked to swallow the sperm of

13 Accused B. She was asked to lick his penis after there

14 was anal intercourse or faeces were on it. And this was

15 done because "You don't beat women. We have other

16 means of making them talk." But who wanted them to

17 speak? Who wanted the information? Who was the

18 principal director and actor?

19 Now, the testimony seems to show, at this

20 point in time, Witness D is continuing to be beat on

21 the feet, maybe around the head, but then Witness D

22 testifies that he is brought over and forced to watch

23 the rapes and other sexual abuse of Witness A. And

24 then the question arises: Where is the interrogator?

25 Where is Anto Furundzija? Is he in the room? Is he

Page 659

1 outside the door? Has he left but stayed around? His

2 presence is there and is felt. It's his play. He is

3 in control of the entire theme, whether he steps out to

4 take a cigarette, to talk with his public, which is

5 still around, of Jokers clambering around the door, or

6 whether he is inside interrogating.

7 There is no alibi. There is no other place

8 he was at this time. Anto Furundzija was continuing,

9 what we will call, the common scheme of the

10 interrogation, of torture under international law.

11 I would just like to go back a moment to the

12 public. The public followed the play. They might have

13 left the larger room soon after Anto Furundzija left,

14 but they, again, showed up when Furundzija transported

15 forcibly Witness D. And it appears from the testimony

16 that they stayed around, because when Witness D recalls

17 being taken out, he has testified that he still heard

18 cries and screams of a woman. The only evidence we

19 have that day of a woman being present at the Bungalow

20 and in the direction of the cries and screams appears

21 to be Witness A. And then he heard the Joker men

22 saying or shouting or chanting, "Furundzija,

23 Furundzija."

24 Now, I will grant you that there is evidence

25 that there were two Antons that day or within the

Page 660

1 Jokers. There appeared to be only one Furundzija.

2 There appeared to be only one Furundzija who was the

3 leader of the Jokers or looked upon as someone with the

4 status of leader. And there appears that only that one

5 Furundzija, as far as the testimony has shown, was

6 present in the pantry or in the first room.

7 Now, Your Honours, what I would suggest, but

8 I think it's just far too obvious, but please allow me

9 to say it, there is no expert testimony that's

10 necessary or needed here. Witness D recognised the

11 accused Anto Furundzija. He had been with him for

12 three days. He had been arrested, detained

13 interrogated by the Joker unit and Anto Furundzija.

14 Witness A identified Anto Furundzija. And

15 what the court will see in reviewing the documents and

16 exhibits in this case is that she has never said it was

17 anyone different. She has never elaborated or

18 detracted upon the role of Anto Furundzija, has never

19 said that "He tried to touch me," has never invented to

20 make him more of a physical perpetrator or more

21 horrible, because Anto Furundzija's acts were criminal

22 and horrible enough in and of themselves, the principal

23 interrogator, the principal torturer.

24 Witness A has remained consistent throughout

25 the five years on that issue. Witness D certainly

Page 661

1 corroborates that.

2 At the close of our pantry scene, we run into

3 a little bit of difficulty. When did the scene end for

4 Witness D and when did it end for Witness A? How long

5 was Anto Furundzija at that pantry?

6 I would and I must say that the accused

7 staged, executed, committed, in the very, very least,

8 aided and abetted in the commission of crimes under our

9 Statute. I would like to go into the criminal

10 allegations, and then I'll briefly terminate with

11 Article 7(1).

12 I believe the evidence has shown clearly that

13 we are talking about the crime of torture, the

14 intentional infliction of severe mental pain or

15 suffering upon a victim. In this instance, it's

16 important to see that this torture was related to the

17 armed conflict. She wasn't brought in to find out who

18 her sons were dating. She was brought in for

19 information that would be of assistance, if not dire

20 use, to the HVO, concerning the relationships of HVO

21 persons with Muslims during a war; persons such as

22 Zlatko Nakic, information about what occurred in the

23 buildings where they were holding Muslims in the

24 basement, information about Vlatko Males, information

25 about other Muslims who lived in the building.

Page 662

1 This interrogation was related to Anto

2 Furundzija's function during the war, and that's why he

3 was intent upon getting that information. He wanted it

4 from the side of Witness D and, certainly insistently,

5 from the side of Witness A. He intentionally, under

6 torture, intentionally inflicted serious mental pain

7 and suffering on Witness A for that information. And

8 when she didn't give it, he intentionally inflicted

9 serious mental pain and suffering to punish her or to

10 intimidate her, but he was going to have the

11 information.

12 Now, under torture law as proposed by the

13 Prosecutor, and as this honourable Trial Chamber will

14 be able to adjudicate for one of the first times in

15 international law, you know that you have to have the

16 acquiescence or consent of an official. There appears

17 to be no doubt that Anto Furundzija was an official

18 within the Jokers. The Jokers were an official unit

19 within the HVO. And the HVO is, without a doubt, one

20 side of the armed conflict.

21 I believe that the Prosecutor has presented

22 and proved beyond a reasonable doubt the elements that

23 are required for torture.

24 In terms of Furundzija's intention, one need

25 look no further than the threat to kill, the forced

Page 663

1 nudity, the threat of mutilation, the continuance of an

2 interrogation that has, up until a point in time, been

3 filled with violence. All of the admissible sexual

4 evidence from the first room and certainly all of the

5 sexual evidence from the pantry, the rapes, the sexual

6 abuse, particularly the degrading manner in which the

7 forcible sexual penetrations were carried out, show

8 that he intended to inflict serious mental harm and

9 commit the crime of torture as an official

10 representative of the Jokers and the HVO army.

11 The evidence concerning outrages upon

12 personal dignity. If the court were just to look at

13 outrages that were separate from rape, we would still

14 have forced nudity in a public venue, in the meaning

15 that it was not in Anto Furundzija's small office in

16 the Bungalow, if he had one. It was in front of the

17 Joker men who were armed. All of the acts took place

18 in this type of public setting in the hands of, from

19 the point of view of Witness A, the enemy.

20 Personal integrity. "Take off your clothes.

21 Your vagina might be cut out." Sexual integrity.

22 Well, it's hard to unpeel, it's hard to say when one

23 did not blend into the other at this point due to the

24 method of this interrogation.

25 When we move to the pantry, we have a

Page 664

1 continuation of outrages upon personal dignity, but

2 taken to another level with the forcible sexual

3 penetrations, and then having Witness D forced to

4 witness the rapes of Accused B upon Witness A while

5 Witness A knows that this is someone who has helped her

6 sons. This is someone who the Jokers have no qualms

7 about beating and forcing him to see such degradation

8 and rapes. What was the fear that must have gone

9 through her mind and body? Outrages upon personal

10 dignity, which includes our sexual integrity and which,

11 in this instance, undoubtedly included multiple,

12 multiple forcible sexual penetrations or rapes.

13 The evidence of rape I've already gone over.

14 I think there's absolutely no question that these rapes

15 were done intentionally. I think the common scheme of

16 the interrogation was almost like one intentional act,

17 but one still has to link the accused to the crimes.

18 What is his individual, criminal

19 responsibility? Well, I believe certainly, certainly

20 for the torture, the Prosecution has proved beyond a

21 reasonable doubt that he committed the torture.

22 There's evidence of planning and setting the scene, but

23 he certainly committed the torture. The Prosecution

24 would emphasise the commission, although Your Honours

25 might find otherwise.

Page 665

1 In terms of outrages upon personal dignity, I

2 think that when you're in the hands of a detained --

3 when you're a detained person in the hands of another

4 power under Article 3, there is case law that says

5 there could be a duty to that detained person to make

6 sure that person is not ill-treated or molested or that

7 anything should occur to them.

8 Well, it certainly has been noted in case

9 law, particularly, the "Essen Lynching" case when the

10 German police turned over to a part of the German army

11 three British military pilots, and Erich Heyer stated

12 to his sergeant, "We'll take them for interrogation

13 down the street," but the meaning was very well

14 understood, "We will march them through this angry

15 crowd." And those three British pilots did not make it

16 through the angry crowd. The crowd killed them. And

17 Erich Heyer was found guilty, even though he never

18 touched them, but he initiated, and the court does talk

19 about that it was impossible to separate out the acts,

20 that Heyer admittedly never struck a physical blow.

21 His part was entirely verbal. But in knowing that

22 these British soldiers would be marched through a crowd

23 where there was little likelihood of survival, the

24 court found that he did not uphold a duty to detained

25 persons who were in his hands, and that, in essence,

Page 666

1 that was a violation of the Laws and Customs of War.

2 Even the sergeant, who stood nearby and

3 escorted the men and never interfered with the crowds'

4 brutal interference with the prisoners of war, was

5 found guilty and sentenced to five years.

6 I would say that the outrages upon personal

7 dignity, and the court might also find the rapes, that

8 Anto Furundzija certainly didn't fulfil any duty to a

9 detained person in his hands, even if he never touched

10 the person once.

11 But the court might also find under 7(1) that

12 Anto Furundzija aided and abetted in the rapes. Now,

13 with aiding and abetting, one has to be directly a

14 contributor and/or merely more -- pardon me, more than

15 merely present. I think that the court can certainly

16 look at a direct contributor through the lens of

17 omissions, of omissions of acts, even if we put aside

18 the acts of threat, the acts of knowing that Accused B

19 would rape Witness A in the pantry. There was no move

20 to stop that. There was no move just to say, "I will

21 complete my interrogation at the Bungalow." There was

22 no move to say, "This woman will not speak. I've

23 finish my interrogation," more or less a move to tell

24 anyone to stop what was clearly illegal under law, and

25 that would be raping during an interrogation.

Page 667

1 There was neither an act of salvation, and we

2 cannot count the omissions that were committed. As a

3 matter of fact, in terms of aiding and abetting, the

4 presence of Anto Furundzija, whether it was insertedly

5 next to her, near the door, milling around with his

6 men, had an encouraging effect on the commission of the

7 rapes. It gave out the silent signal or maybe not so

8 silent. Everyone understood.

9 It's very interesting that this Tribunal, in

10 their first case that has come to a judgement, the

11 Prosecutor versus Tadic, had to look at what I would

12 call an analogous, if not a similar, issue. That was

13 the issue of Mr. Tadic, a man who did not have the

14 military affiliation that Anto Furundzija has, who was

15 with a group of guards in a second setting, after

16 having been actively participating with the guards in

17 previous settings of types of abuse and brutality. And

18 in the second setting, it appears that Mr. Tadic, in

19 the Omarska camp, was present while one guard

20 sexually -- I'm sorry, one inmate was forced to

21 sexually mutilate another inmate.

22 Now, the court found that Mr. Tadic was not

23 merely present, that his presence has an encouraging

24 effect, even though in this second incident, he had not

25 said one word; he had not touched one inmate.

Page 668

1 Our facts are much stronger, much clearer,

2 and it's much more evident that there was no mere

3 presence of Anto Furundzija during the entire

4 interrogation, nor during the second part in the

5 pantry. He participated by bringing "D," by verbally

6 starting this second phase of the interrogation, and by

7 having a presence during the commission of the sexual

8 assaults, the repeated rapes.

9 Now, this Tribunal has seen fit to look at

10 such law and pronounce a judgement, such as Tadic, by

11 saying that those acts and omissions incur liability

12 under Article 7(1) of our Statute.

13 Your Honours, I would just like to conclude

14 by briefly looking at questions of credibility of the

15 witnesses. The Prosecution has called Dr. Mujezinovic,

16 a man whose relationship to these matters, in many

17 ways, is quite formal. It has to do with positions he

18 held within the Bosnian war presidency and, prior to

19 that, during the crisis staff. The relationship that

20 he might have to Victim A is minimal, if relevant at

21 all. I believe his testimony was credible and was

22 mainly centred on issues of the existence of the armed

23 conflict politically and its various manifestations.

24 The court heard Witness B. Witness B, as the

25 court very correctly stated, is not related to the

Page 669

1 criminal acts of this trial, but her testimony, that of

2 a woman who was betrayed by a friend in stony silence

3 while she was being expelled from her house at

4 gun point, was credible. There is no reason that I

5 believe the Chamber can detract from any of her

6 testimony.

7 Then we have Witness C. Witness C recounted

8 what it was like to live in Vitez during the time

9 period of the armed conflict. In some ways, other than

10 the arrest and detention, her story parallels that of

11 Witness A. I believe the testimony was factually

12 accurate and credible.

13 Then we come to the testimony of Witness D,

14 as we stated before, somewhat of a reluctant witness,

15 did not want to disturb the peaceful state in which he

16 has finally found himself after the years of armed

17 conflict. It's a witness that was attractive, to a

18 certain extent, for both sides, both the Defence and

19 the Prosecutors. He was a witness who came and stuck

20 to what he saw and what happened to him. I think the

21 court could certainly see that this was not a witness

22 that exaggerated on one side or on the other. He

23 testified truthfully, down the middle.

24 But what was pertinent, I think, to his

25 testimony was the physical reaction that his own body

Page 670

1 had to the testimony. I don't know if it was perceived

2 by the Chamber, but it was quite obvious that Witness

3 D's body could not stop rocking back and forth every

4 time he spoke about the beatings that had occurred at

5 the Bungalow. His shirt just started flapping. But he

6 maintained his testimony, and I believe it was the

7 testimony that, in the main points, were very, very

8 credible. I believe that Witness D rendered a service

9 to this Tribunal by coming.

10 We have Witness A. Witness A, similar to

11 many victims of armed conflict, has a horrible story to

12 tell, hers, perhaps, as, if not more, horrible than

13 that of many persons, particularly, many women, in the

14 former Yugoslavia.

15 Witness A came, she spoke. In the opening

16 statement of Defence counsel, we were warned, "She will

17 be a very sympathetic witness. Everyone will like

18 her. Horrible things have happened to her, but she is

19 just not remembering correctly, and let's not have that

20 cloud our understanding of the case." I think Witness

21 A has shown the proposition to be true that many people

22 who have been sexually assaulted and particularly

23 violated, the problem is not remembering; the problem

24 is forgetting. She came, she remembered.

25 The gist of her story, the core of her story,

Page 671

1 if we want to use a bit of the theories of Dr. Loftus,

2 the core of her story has not changed over the years.

3 Anto Furundzija led the accusations, led the

4 interrogation. Anto Furundzija was present during the

5 sexual abuse. Anto Furundzija then took me to the

6 pantry, commenced the interrogation again. The sexual

7 abuse started again. In, what I would call, the few

8 times that she has been interviewed in those

9 intervening five years, the story remains the same

10 because that is what happened.

11 Then, Your Honours, I would just like to

12 speak briefly about Witness E. We thank him for coming

13 too, a resident in the former Yugoslavia. It's obvious

14 in Witness E's testimony that he brought forward some

15 very good information. He, too, was frightened. He,

16 too, was frightened probably of Accused B and, I would

17 suggest, might have reduced his testimony in terms of

18 Accused B. But that testimony led or tried to infer

19 that Accused B did not brutally beat Witness D to the

20 extent previously testified.

21 I can understand why Witness E would want to

22 limit it to the facts and look at his statement for 35

23 minutes and spend the other 18 hours in the Bungalow, I

24 don't know, I really don't know, closing his ears,

25 reducing his vision, having a weapon focus? But, Your

Page 672

1 Honour, Witness E places Witness D on or about May 15th

2 in the Bungalow primed to be taken to the pantry the

3 next morning where he would be confronted with Witness

4 A by Anto Furundzija in the last phase of the

5 interrogation.

6 As I stated earlier, this case is about

7 simple justice. This case is not that complicated in

8 many aspects, important in several others. I would ask

9 Your Honours to use your well-developed judicial sense

10 to understand the testimony and the evidence. The

11 Prosecution believes that, beyond a reasonable doubt,

12 we have proven that Anto Furundzija, the accused who is

13 in this courtroom today, has committed torture, has

14 committed outrages upon personal dignity and, the very

15 least, aided and abetted upon outrages of personal

16 dignity, aided and abetted in the commission of rape.

17 Your Honours, we ask this Trial Chamber to

18 find the accused, Anto Furundzija, guilty. Thank you.

19 JUDGE MUMBA: Thank you. The Defence?

20 MR. MISETIC: Good afternoon again, Your

21 Honours. May I first say that Ms. Sellers' closing

22 argument is framed in the form of a play, and I believe

23 that perhaps Ms. Sellers will win an award for best

24 fictional script. I certainly will vote for it. She

25 said at the beginning that this was a historic case,

Page 673

1 and we agree. The case of the Prosecutor versus Anto

2 Furundzija will be historic, in our view, because it

3 will be the Tribunal's first acquittal. I will not try

4 to appeal to your passions here. I will not talk about

5 simply justice for the victim or justice for Ahmici.

6 I'm going to talk to you about justice for all, because

7 everyone is entitled to justice.

8 As I said in my opening statement, the

9 Prosecution was going to call six to eight witnesses.

10 It turned out to be six witnesses. And other than

11 Witness A, no one had any personal knowledge of the

12 events in what I will refer to as the big room at the

13 weekend house next to the Bungalow. And the only

14 person who claimed to have any knowledge concerning the

15 events in what will be described as the pantry,

16 directly contradicts Witness A's version of events and,

17 specifically, with respect to who was present in the

18 room at the time of, I guess we'll refer to him now as,

19 Accused B's continuing sexual and physical assaults of

20 Witness A.

21 Ms. Sellers' closing argument was focused

22 very much on April 16th and on the law. I'm going to

23 talk to you today about what the facts are and I'm

24 going to talk to you about the events of what the

25 Prosecution now, contrary to their opening statement

Page 674

1 says, is mid May. But first let me address the

2 assertion that the Prosecution has proved armed

3 conflict in this case. As you are all too familiar, it

4 is the Prosecution's burden of proof to prove each

5 element of the charge. And, yes, they did call many

6 witnesses who talked about offences that were committed

7 by Bosnian Croat forces against civilians in the Vitez

8 municipality.

9 However, as Mr. Blaxill stated what the law

10 was regarding armed conflict, it is: Armed conflict

11 exists whenever there is a resort to armed force

12 between states or protracted armed violence between

13 governmental authorities and organised armed groups or

14 between such groups within a state. I submit to you,

15 Your Honours, that I have spent a lot of time pouring

16 over the transcripts, and you will not find one bit of

17 evidence that the army of Bosnia-Herzegovina and the

18 HVO clashed during the relevant period. What they have

19 shown is an attack on civilians by the HVO. They

20 didn't tell you when that conflict between the army

21 began. The best they could do was tell you that there

22 were trenches dug about May 22nd, and that that is an

23 indication that there must have been a conflict.

24 But you will recall that when Dr. Mujezinovic

25 testified, I made sure that in the record we included

Page 675

1 that there was conflict with the Bosnian Serbs since

2 1992. And he also said that the Bosnian Muslims and

3 the Bosnian Croats were on the same side fighting the

4 Bosnian Serbs and that that main road that links Vitez

5 and Busovaca was a communication route to the front-line

6 against the Serbs.

7 Now, I submit, Your Honours, that it was the

8 Prosecution's burden to show where the units of the

9 army of Bosnia-Herzegovina were, where HVO forces were,

10 when this clash began, what the military objectives

11 were. We heard none of it. What they have done is

12 asked the court to assume or to rely on outside

13 experience to suggest that there was an armed

14 conflict. They failed to meet the most basic element

15 in this case, and that is armed conflict. And it is

16 not up to the court to fix the mistakes of the

17 Prosecution.

18 Now, in my opening statement, again, I told

19 you that this case was really -- even though six

20 witnesses would be called, that number was a facade,

21 because the Prosecution's entire case is based on one

22 witness, and that's Witness A. And it's not just based

23 on her, but, specifically, it is based on her ability

24 to recollect events, her ability to recall times, to

25 recall dates, to recall places, sequences, people.

Page 676

1 You would have to believe in her abilities

2 beyond a reasonable doubt if you were to convict Anto

3 Furundzija based on her current reconstruction of

4 events. Because, unlike most cases that you will try,

5 there is no corroborating evidence for Witness A.

6 None.

7 Witness A testified that she was abducted on

8 the 15th of May, 1993, and that she was exchanged on

9 the 15th of August, 1993. She told you what happened

10 to her, and we told you it was a reconstruction. Now,

11 we know that at some point she fell into a

12 psychological crisis in her captivity. We know that

13 because in that second December 1993 statement, she

14 says herself, "When I was in the weekend house in the

15 Lasva, I would fall into psychological crisis." And

16 that's perfectly understandable.

17 By the time she got to Travnik after August

18 15th, her reconstruction of events begins out of

19 necessity. Why? Because the people that she had known

20 in Vitez were now refugees in Travnik or refugees in

21 Zenica, and they all see her and they are all shocked

22 by the sight that they see. And they say, "Witness A,

23 tell us, what happened to you? What possibly could

24 have happened to you?" Witness A is in no condition to

25 be saying what happened to her. How do we know that?

Page 677

1 We know that because Dr. Mujezinovic, her physician,

2 came in here and described her condition, mental

3 condition, to you. She was unable to string two

4 sentences together. She was crying all the time. She

5 was suicidal. Dr. Mujezinovic described her as having

6 deviated from the normal during the period of fall of

7 1993 through or around winter of 1994.

8 It is this period that she is at her

9 psychological and psychiatric low point when this

10 reconstruction phase that Dr. Loftus described to you

11 is taking place. In fact, it started to take place

12 during her captivity, but certainly through this period

13 is when her memories are being formed again, and she is

14 potentially suffering from post-traumatic stress

15 disorder.

16 So what happens? We have statements, we have

17 proof that she used others to reconstruct what happened

18 to her. In one statement, she says, "I described a man

19 to my son, and my son said, 'Oh, yes, we recognise

20 him. He's Josip Zuljevic. He's from the village of

21 Krcevine.'" That's in her 1995 statement.

22 She wanted to know at some point, "Who were

23 those three guys that came into my apartment on the

24 15th of May?" Well, in one 1993 statement, she says,

25 "Vlatko Males told my sister Dzana that it was Vujica,

Page 678

1 it was Viktor, it was Krizanac that came to pick me

2 up." So that's what she put in her statement.

3 Then the real serious questioning starts. At

4 some point, a former neighbour of hers comes to visit,

5 a next-door neighbour, someone she had known. Enes

6 Surkovic arrives on the scene, and we talked at length

7 with Dr. Mujezinovic about who Enes Surkovic was. Enes

8 Surkovic was on the war presidency, and his

9 responsibility was to take the statements of all the

10 refugees. His responsibility, as Dr. Mujezinovic said,

11 was to bring to justice those who had deviated from the

12 norms of human conduct.

13 We have testimony from Dr. Mujezinovic that

14 in 1993, he and Mr. Surkovic had conversations about

15 Ahmici. Not just those two. Witness C told you that

16 the climate in Zenica at the time was that the people

17 from Ahmici were telling their stories to everyone

18 about what happened. The same thing was happening in

19 Travnik at the time. People are exchanging stories,

20 and hearsay starts to take its effect.

21 But to get back to Enes Surkovic. Here is a

22 man who Dr. Mujezinovic says believed that the Jokers

23 were responsible for Ahmici. Here's a man who has a

24 conversation with Dr. Mujezinovic not only about

25 Accused B, but they also say, "Yes, and we know that

Page 679

1 the commander of the Jokers was Anto Furundzija," or so

2 they believe.

3 He had heard the stories, he knew what he

4 needed to prove, and he knew what kind of justice, as

5 he defines it, he wanted to mete out. So he talks to

6 Witness A. Witness A says she didn't realise that this

7 was going to be a statement. She described it as a

8 conversation. Apparently -- she says it was probably

9 in Enes Surkovic's handwriting. Apparently, Enes

10 Surkovic forged her name to that statement.

11 You can see the situation now. A woman who

12 is at her low point psychologically and psychiatrically

13 is being asked by a man who has facts, who has a

14 purpose and a motive specifically to one man he

15 believed was the commander of the Jokers.

16 So what happens? A statement is written.

17 Not by Witness A. Witness A doesn't recall ever giving

18 a statement. She says it was a conversation. And you

19 can imagine how that conversation went. "Neighbour,

20 I've heard stories about you. Tell me what happened."

21 And she can't string two sentences together. "Well,

22 let me write it for you." She says one name, Accused

23 B. He says, "Wasn't his boss there? It could be his

24 boss was there, somewhere in there." And the name gets

25 written in. Enes Surkovic had a motive to get his name

Page 680

1 in a statement.

2 But the reconstruction doesn't end with Enes

3 Surkovic. First of all, it turns out that the evidence

4 is that her husband works directly below Enes Surkovic

5 in the refugee office. Her husband certainly had the

6 same knowledge as Enes Surkovic.

7 There was a purpose. Her husband, the

8 testimony indicates, knew about Ahmici because he was

9 in the Civil Defence in Stari Vitez at the time the

10 bodies from Ahmici were transferred and were buried by

11 his Civil Defence. This is a man who thought he was

12 bringing someone to justice.

13 We have all sorts of contact now with this

14 witness, all sorts of post-event reconstruction,

15 suggestion as to who the important people might be to

16 get in this statement. She herself says - she herself

17 says - that at some point after peace, and this is in

18 this trial testimony, after peace, presumably the

19 Washington Accords, she talked to some of her

20 neighbours from the area, and her neighbours said, oh,

21 they saw who the three guys were that came to pick her

22 up. And they weren't Dugi -- they weren't Vujica

23 Viktor and Krizanac, they were Dugi, Sikira, and a

24 third man.

25 So in the 1995 statement, we have three

Page 681

1 totally different names for who came to pick her up.

2 Why is that?

3 Well, what happened was, somebody suggested

4 to her that you get three different names in there, or

5 at least two. But it doesn't end there. This was in

6 her local community, even though it was refugees, and

7 stories are told and people talk. But the

8 professionals are coming.

9 The Office of the Prosecutor for the

10 International Criminal Tribunal for the former

11 Yugoslavia now wants to talk to Witness A, and

12 Witness A must know that this is not a forum to be

13 telling tales, and the Prosecutor knows "We have to get

14 this statement right because this is the statement from

15 which indictments are going to flow."

16 So who do they send? They send Plony Bos, an

17 investigator, and Brenda Hollis, a Prosecutor, someone

18 who is prosecuting in the Tadic case. They weren't

19 going to get this wrong by sending two incompetents

20 down to take a statement that later could be said, "It

21 was wrong. We transcribed it wrong." They bring a

22 translator with them. They spend two days with her.

23 They are going to get this story straight, they are

24 going to get the facts, they are not going to put tales

25 on paper, as the '93 statement is, they are going to

Page 682

1 ask the questions that every investigator and

2 Prosecutor wants to know: Who? What? When? Where?

3 Why? How?

4 They do it. They go through her statement

5 very carefully, and they put it on paper. They don't

6 want to beat around the bush. They say, "These people

7 that you're naming, describe them. We want

8 descriptions of these people." The descriptions are in

9 the statement: Accused B, 190 centimetres, sturdy

10 build, moustache; Dragan Botic, in his 40s, short,

11 black hair, 180 centimetres; Josip Zuljevic, 22, short

12 black hair, 170 centimetres; Anto Furundzija, 172

13 centimetres, blond hair, small-featured.

14 Okay. The Prosecutors and the investigator

15 have no knowledge as to whether those descriptions are

16 accurate, and they believe the story. They believe

17 it. She told them. She was sure. "April 16th; I know

18 that date. That's the date," as she said in this

19 courtroom, "That was the beginning of the end. How can

20 I forget that date?" "5.45 a.m. I can tell you to the

21 minute when it started."

22 She says May 15th. She says May 15th in

23 every statement she has ever given. She said May 15th

24 on cross-examination here at least eight times.

25 Michael Blaxill told you in his opening

Page 683

1 statement it was one horrifying day. It was May 15th.

2 Well, now it is on or about May 15th, and

3 what does it matter? "It is our witness and it is the

4 same thing she has said for five years, but she's

5 wrong." Okay. Or is she wrong? Well, we will get to

6 that in a minute.

7 This statement is used to bring indictments,

8 and an indictment is filed and confirmed in November of

9 1995. The Prosecutors and investigators were led to

10 believe a story which appeared to be seamless. All of

11 these events seem to fit into place. Everything

12 happened in one day.

13 Again, opening statement: "It is one

14 horrific day. That's what this case is about." "The

15 case," he said, "is focused on the events of one day,

16 15 May, 1993." He described it in the opening as: In

17 the morning, she's taken, she's taken to the big room,

18 Anto Furundzija arrives shortly thereafter, all sorts

19 of heinous crimes are committed in his presence while

20 he is interrogating. He is not getting the answers he

21 wants, so he gets upset. He leaves. He takes her to

22 the pantry. And this is a continuation. A "second

23 phase," as he described it. Witness A testified

24 exactly as Mr. Blaxill told you she would. It was 15

25 May and it was one day.

Page 684

1 Contrary to the claim there, there was no

2 continuation on 15 May. There was no second phase.

3 You know, here we are talking very much about witness

4 memory, witness testimony, no corroboration. If only

5 we had demonstrative evidence to check these people's

6 memories, to check their accuracy. Well, the Defence

7 did provide demonstrative evidence for the Trial

8 Chamber. We showed you Defence Exhibit 10. We showed

9 you that Witness D could not have come out of Stari

10 Vitez until at least 16 May, 1993.

11 To make their theory of the case work when we

12 started, he had to have been released on 13 May,

13 because you will recall, his testimony is: "I didn't

14 see Witness A until the third day of my captivity." So

15 he had to be out on the 13th of May.

16 Well, if Witness A testifies, and she is

17 their witness, if she says she was taken on 15 May, and

18 now the evidence is she couldn't possibly have been in

19 the pantry until May 18th or, as Witness E said, they

20 were taken to the Bungalow on the 17th, on May 19th she

21 was taken to the pantry.

22 Now, the Prosecution wants you to just think,

23 "Oh, what does it matter what day it was?" Well, it

24 matters for this reason. The question is: Was it one

25 day?

Page 685

1 Witness A testified consistently she was

2 taken to the pantry on 15 May. Mr. Blaxill said she

3 was taken to the -- excuse me, to the house on 15 May.

4 She says, "I remember dates. I remember 16 April. I

5 remember 5.45 a.m. " I asked her, "Do you remember the

6 time of day you were taken on 15 May?" "Absolutely. I

7 was taken at 10.30 because I picked up my watch, and I

8 remember looking at my watch and it was 10.30 in the

9 morning."

10 So how do we square this? Well, it is

11 interesting to look back on her testimony because now

12 she says she only spent one day at that weekend house

13 next to the Bungalow. But that is not what she has

14 always said.

15 In 1993, in two statements, she says, "I

16 spent three days there." She spent three days there.

17 Now, that is consistent with some of the testimony she

18 has given. She has combined three or four days of

19 events into one day and made it all 15 May in her head,

20 the day she was taken.

21 She also gets other things confused. She

22 says in 1995, on the next day, she was taken to the

23 weekend house by the Lasva where she spent the rest of

24 her time. Here, she raised a new issue. She said,

25 "Oh, no, no, no, no, no. The next day, I was taken to

Page 686

1 Accused B's house where I spent a couple of days." She

2 said that on my cross-examination. "The next day I was

3 taken to Accused B's house."

4 Let's look at that day that she describes.

5 10.30 in the morning, she's taken. She arrives in the

6 big room. She says she's repeatedly sexually assaulted

7 and raped in the big room in front of soldiers. Then

8 she says, "And then, at some point, I'm left alone with

9 Accused B, and he assaults me and rapes me and then he

10 falls asleep, and then he assaults me and rapes me and

11 then he falls asleep, and assaults me and rapes me and

12 falls asleep. And then I was taken to the pantry and

13 then I went to the Lasva house (redacted)

14 (redacted)"

15 (redacted)

16 matter of two or three hours on the afternoon of one

17 day in the life. She has crammed days where he kept

18 her locked up, would fall asleep, wake up, go about his

19 business, come back. These are days of events. That

20 is why 15 May is significant and can't be brushed

21 aside.

22 What we also know is, Ms. Sellers is wrong

23 when she says the evidence is uncontroverted that

24 Mr. Furundzija was there from the beginning. It is

25 controverted by her own witness.

Page 687

1 In 1995, to the Prosecutor, to Plony Bos

2 under oath, repeated back to her, she says, "I was

3 taken to the big room. Some other young men, who I

4 can't identify, started to ask me questions. Accused B

5 jumped up behind me, grabbed me by the hair, put a

6 knife to my throat, caressed my body with a knife, and

7 then started to sexually assault and rape me. And

8 there were other soldiers in the room. Then they left,

9 and he continued on alone."

10 "And then what happened?" "Well, then the

11 boss arrived. He did not ask me what had happened to

12 (redacted)

13 someone who is in a rage, as the Prosecution wishes to

14 suggest, have to ask her or the perpetrator what had

15 happened? It is contradicted by their own witness. If

16 they want to come back and say, "Now she's saying

17 something different," well, is that a witness you can

18 rely on beyond a reasonable doubt?

19 Now, let's get to the heart of the case

20 because I am going to talk to you about the heart of

21 the case and I am not going to just skip over it, and

22 that's the pantry.

23 I told you she was going to come into this

24 room and she was going to sit in that chair and she was

25 going to be confident and she was going to be sure of

Page 688

1 herself and she was going to tell you a story, and I

2 also told you she was going to be wrong.

3 Now, I confronted her with that statement,

4 that 1995 statement. I asked her a series of

5 questions, went through it. "You said this: You

6 described him as 172 centimetres and blond." She

7 doesn't deny making the statement. She says, "Sir,"

8 that's what she said to me, "Sir, I'm the victim. I

9 know what happened. I was there."

10 I'm not going to argue with the victim, but I

11 have to, because she was also the victim and she was

12 also the one that was there in 1995 when she was

13 talking to the Prosecutor and she was talking to the

14 investigator; and you have to use her testimony to see

15 whether you believe it beyond a reasonable doubt,

16 whether she is so reliable that her testimony,

17 uncorroborated, can convict a man of rape and torture.

18 She looked you right in the eye, she looked

19 me right in the eye, and she said, "Anto Furundzija was

20 present in the pantry interrogating me while both

21 "D" and I were being beaten and while I was being

22 raped by Accused B." Not only that, but she said, "So

23 there's no mistake about this, the questioning and the

24 sexual assault and rape were parallel."

25 Indeed, Ms. Sellers asked her a question,

Page 689

1 which ultimately got stricken, but she said, "So

2 depending on the answer, did the intensity of the

3 sexual assault increase?" And the question was

4 stricken. But that is evidence that there was no

5 mistake about what she meant. Furundzija was there,

6 Furundzija is asking questions, and depending upon her

7 answer, she is being raped. She was confident and she

8 was wrong. Why do we know she was wrong?

9 Well, Witness D comes into the courtroom, a

10 Prosecution witness, a man apparently with no love loss

11 for Mr. Furundzija, and he told you that. The

12 Prosecution's own witness told you that. He said, "I

13 was taken on the 16th, and it wasn't until the third

14 day of my presence in the Bungalow that I was taken

15 over to the weekend house next to the Bungalow." And

16 he says "I walked," and he doesn't say Anto Furundzija

17 took him to the pantry, he says, "I got downstairs in

18 the Bungalow, Anto Furundzija was standing around, and

19 Accused B, Anto Furundzija, and a bunch of other

20 soldiers walked to the other house." And then he says,

21 "they" walked in the room. He doesn't say who.

22 He says, "When I got to the room, Witness A

23 was already there. She was in the room ." But

24 Witness A testified, "Somebody came in the room, and

25 Accused B and another individual came and took me, and

Page 690

1 I turned the corner and I brushed Mr. Furundzija's

2 elbow." And who is in the room, but Witness D?

3 I think Dr. Loftus's testimony helps us here,

4 or at least is proven by this point. Two people come

5 into this courtroom and say, "I walked into the room

6 and the other one was already there." The other one

7 comes in and says, "No, I walked into the room, and the

8 other one was already there." Again, her ability to

9 recollect faces, times, dates, et cetera.

10 What else does Witness D tell you? "Well, I

11 started to get hit, and I got hit first. Then after

12 Accused B was done with me, then he turned his

13 attention to 'A'." Okay. So the Prosecution asks,

14 "All right. While you were being beaten in that first

15 part, was anybody else in the room?" "No." "Well, did

16 you see anyone around?" "Yes. Outside the door, I

17 could see a group of soldiers." Okay. "So they're

18 outside the door. Could you identify anyone?" "Yeah.

19 One of them was Anto Furundzija." Okay.

20 So then the question is asked: "Well, how

21 many times did you see him there?" The question being

22 asked to see whether he was there for the entire

23 incident. And he says, "You know what? I don't know.

24 I looked up once, I saw him there, but I can't tell you

25 at what point that was." Mm-hmm. "Well, did they know

Page 691

1 what was going on?" He believes so. In other words,

2 "I guess so. I don't know." He believes so. He

3 guesses so.

4 This sounds like a man who is an active

5 participant, who is in such a rage, as Ms. Sellers

6 describes him, that one of the people that is being

7 beaten can't even come in here and tell you for sure

8 whether he was around when this was going on?

9 Another important element is: He's asked,

10 "Okay. What happened when you left the room? Did you

11 see anyone?" "No." "Okay. Well, you were taken out

12 of the house, right?" "Yeah." "And you were taken

13 back to the bungalow?" "Yes." "Well, did you see

14 anyone on your way back to the Bungalow?" "No." Most

15 importantly: "Did you see Anto Furundzija?" "No."

16 Ms. Sellers talks about, he heard screaming

17 at some point that night. Let's look at Witness A's

18 testimony. Witness A never says she screamed.

19 Witness A says, "I was like a stone. I couldn't move.

20 I couldn't do anything." So the accusation that

21 Furundzija was around someplace while this woman was

22 screaming contradicts Witness A's own testimony.

23 In fact, it contradicts Witness D who says,

24 on Judge Cassese's questioning, "No, she wasn't

25 screaming." "Well, was she crying loudly?" "No, she

Page 692

1 wasn't crying loudly."

2 Witness A is wrong. She's very wrong. She

3 has accused a man of being an active participant, of

4 conducting an interrogation while she is being raped

5 and beaten, and we have a Prosecution witness who says

6 she has got her facts very, very wrong. I can't

7 imagine a bigger mistake.

8 But this is not the first time that "A" has

9 falsely accused someone of raping her in the pantry.

10 Recall that in 1993, she said basically she was

11 gang-raped. "They took turns raping me, about five or

12 six of them, in the pantry."

13 (redacted)

14 She says at some point in the pantry -- I don't recall

15 now whether she said it was Mr. Furundzija or somebody

16 else (redacted)

17 guitar to make it more of a party atmosphere. Okay?

18 Well, that's not what she said when she testified in

19 another case before this Tribunal. She said, "No, no,

20 that guitar-playing was back in the big room early

21 on." In every other statement, including her testimony

22 here, she says, "No, it was in the pantry."

23 But Witness D is here, and Witness D doesn't

24 describe anything like people coming in and playing

25 guitar. He can't even tell you whether people knew

Page 693

1 what was going on outside, that were standing outside,

2 and how long they were there. He doesn't know that.

3 Again, memory, the fragility of memory. The

4 susceptibility to influence from outsiders.

5 Witness D told you a lot about Witness A's

6 memory. His testimony allows you to see how reliable

7 Witness A is. His testimony allows you to see whether

8 Anto Furundzija conducted an interrogation in the

9 pantry during the rapes and beatings. His testimony

10 confirms what we said in our opening statement, that

11 Witness A has it wrong, Witness A's reconstruction is

12 not reliable, let alone convincing beyond a reasonable

13 doubt. Not only does the Prosecution fail to bring any

14 corroborating evidence for her testimony, but they call

15 a witness who impeaches their own star witness.

16 But it is not too difficult to see why she

17 has a problem trying to place Anto Furundzija. In

18 1995, again, her Anto Furundzija was 172 centimetres,

19 blond hair, small-featured. In 1998, her Anto

20 Furundzija is 180 centimetres, chestnut brown to black

21 hair, and a strong jaw. Not small features. Well,

22 forgive me if I ask the court to take judicial notice

23 that he has a rather large nose too.

24 Now, we have introduced the medical record

25 this morning. Anto Furundzija is 183 centimetres tall,

Page 694

1 brown to black hair, prominent features. She made an

2 11-centimetre mistake, mistake as to hair, mistake as

3 to features, and Witness E told you, when I asked, "Is

4 there somebody around the Bungalow in the period of 15

5 May through 18 May that fit the description of 172

6 centimetres and blond hair?" "Yes, two people."

7 She is wrong about this. She can't identify

8 him.

9 Interestingly enough, the Prosecution's star

10 witness is called to the stand. The Prosecution

11 completes its entire questioning of Witness A and never

12 asks her to identify the accused. It was only because

13 Judge Mumba asked the question that there was ever an

14 identification.

15 Now, the Tadic court is on record as saying

16 in-court identifications are not very worthwhile.

17 Indeed, most of the witnesses in this case described

18 Mr. Furundzija as the man sitting next to the armed

19 soldier, uniformed, and he is the only man who is

20 either not in a uniform or in a robe in the courtroom.

21 Yet they didn't ask her to identify him. So Judge

22 Mumba then asks, and she identifies him without

23 problem.

24 Now the Defence starts to ask questions about

25 the key witness's ability to identify the accused, to

Page 695

1 ask her questions about her 1995 description, and the

2 Prosecution objects, objects to any line of questioning

3 about an identification by the victim of the

4 Defendant. We suggest, Your Honours, that a reasonable

5 inference can be drawn that Witness A was not able to

6 identify the Defendant.

7 If Witness A is wrong about this, if she

8 can't identify him, if she is wrong about the date, if

9 she is wrong about the guitar, if she is grossly wrong

10 about the pantry, how can you believe her beyond a

11 reasonable doubt?

12 She talks about, or the Prosecution talks

13 about, an interrogation. Anto Furundzija, professional

14 interrogator. That's his role in the play described by

15 Ms. Sellers. The play makes no sense, based on this

16 evidence. None. Why?

17 The theory is the HVO, or Anto Furundzija and

18 the Jokers, knew about this relationship between

19 "D" and "A" and, as Ms. Sellers said in her closing,

20 "And this was professional. This was about getting

21 names of people that she was working with in the HVO,"

22 et cetera, et cetera.

23 Okay. Let's pursue that line of thinking.

24 So we have Witness D, she is taken to the big

25 room, she is asked questions. The theory is, because

Page 696

1 she is not answering correctly the questions, she

2 starts to be beaten, she is threatened with a knife,

3 she is sexually assaulted, she is raped because she is

4 giving the wrong answers. The theory is that it is

5 about Witness A and her contacts with others. Okay.

6 So I asked Witness A, I said, "Okay. During

7 this whole period before your entry into the pantry,

8 did anybody ask you if you knew Witness D?" "Oh, no."

9 "Wait a minute. They're beating you because of your

10 relationship, the assistance that "D" gave you on the

11 16th, you're not giving the right answers, but nobody

12 bothered to say, 'Oh, by the way, Witness A, do you

13 know Witness D?'" Even more interesting, she gets to

14 the pantry and she says right away, "Oh, yeah, I know

15 him. (redacted)

16 (redacted)."

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 697

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13 Page 697 redacted

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Page 698

1 Now, let's talk about the law and the Tadic

2 decision which is relevant to this case. The

3 Prosecution must prove an intent to participate, an

4 awareness of the act of participation. Witness D has

5 no idea. He says he was outside the room I don't know

6 when. I don't know at what point he was outside the

7 room. I don't even know whether he knew what was going

8 on in the room. Is that an intent to participate?

9 The next step is participation. The conduct

10 of the accused contributed to the commission of the

11 illegal act. First, again, there is no proof that he

12 was there for any of this. There is no proof that he

13 ever said or did anything, other than Witness A's

14 reconstruction.

15 Another element is there must be some overt

16 act or omission. The Tadic court said there must be

17 participation. For even if a man is present whilst a

18 felony is committed, if he takes no part in it and does

19 not act in concert with those who commit it, he will

20 not be a principal in the second degree merely because

21 he did not endeavour to prevent it. (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 699

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)." That seems to

20 be stretching for duality, Your Honours.

21 (redacted)

22 (redacted)

23 (redacted). There is no credible

24 evidence that he was outside the pantry during the

25 sexual assault of Witness A or her rape or her

Page 700

1 beating. Witness D says he looked up and saw him there

2 but doesn't recall when, and Anto Furundzija was not

3 around when he left the room.

4 Again, Your Honours, you were told in my

5 opening statement that the Prosecution's entire case

6 rested on one witness. It rests on Witness A, and it

7 rests on her ability to recollect events. You would

8 have to find that her memory is so convincing, is so

9 accurate, that based on her reconstruction alone, you

10 are convinced beyond a reasonable doubt of the guilt of

11 Anto Furundzija. Well, Your Honours, we have seen that

12 Witness A's memory has failed her many times on many

13 significant events.

14 Perhaps the Prosecution, in rebuttal, can

15 answer some of these questions: When did it happen?

16 Was it May 15th? Was it all in one day or was it three

17 days? Who is the 172-centimetre, blond-haired,

18 small-featured man? When did Zuljevic play the guitar,

19 at the pantry, as she said here, or in the big room, as

20 she said in 1997 trial testimony? Who brought her to

21 the pantry? Was it Accused B, Anto Furundzija and

22 Dugi, as she said in 1995? Or was it Accused B and

23 another man and not Furundzija, as she said here?

24 Who was in the pantry first? Was "D" in the

25 pantry first or was "A" in the pantry first? When was

Page 701

1 she taken to the house by the Lasva? This time, for

2 the first time, she says she was taken there on that

3 day. That's something new. Now she was at the house

4 at the Lasva on that day and then taken back. And then

5 the next day, she was taken to Accused B's house. Was

6 she taken to the house on the Lasva the next day, as

7 she said in 1995? Was she taken two days later, as she

8 said in 1993?

9 You know, the Prosecution got up in their

10 closing argument and said, "Well, she's got the core

11 right." Well, first of all, no, she doesn't. She has

12 the date wrong. She has the ID wrong. She has the

13 pantry wrong. If that's not the core of a case against

14 an accused, I don't know what is. But what does that

15 say about your witness? The witness that your whole

16 case rests on, you tell the court, "Okay, so she makes

17 some mistakes. Okay, so she's wrong a couple of times,

18 but there's been some things that she's been consistent

19 about." That, to me, cannot be a witness that you can

20 rely on uncorroborated beyond a reasonable doubt.

21 Such a huge, terrible mistake as the pantry

22 must create reasonable doubt in your minds about this

23 case. If she could falsely accuse Anto Furundzija of

24 being a direct participant in her rape, she can be

25 mistaken about anything, and the reasons are clear. At

Page 702

1 the time of her memory formation, she was a psychiatric

2 patient who was being visited by people with a motive,

3 by one person, in particular, Enes Surkovic.

4 This is a case, Your Honours, that has not

5 only reasonable doubt, it has reasonable doubts. This

6 is the case that cries out for an acquittal. The

7 Prosecution has failed miserably to meet their burden

8 of proof.

9 Your Honours, the Defence asks you to enter

10 an order acquitting Anto Furundzija. Thank you.

11 JUDGE MUMBA: Thank you. The Trial Chamber

12 would like to find out from the Prosecution whether

13 they have anything in rebuttal to reply to?

14 MR. BLAXILL: Yes, Your Honours, the word

15 would be certain matters I would wish to offer you in

16 rebuttal, certainly.

17 JUDGE MUMBA: Yes, please go ahead.

18 MR. BLAXILL: Your Honours --

19 JUDGE MUMBA: Mr. Blaxill, how long do you

20 think you will take? It's past lunch-hour now.

21 MR. BLAXILL: Well, yes, I would imagine 15,

22 20 minutes, maybe a little longer, Your Honours.

23 JUDGE MUMBA: In that case, then we will sit

24 in the afternoon.

25 MR. BLAXILL: Very well. I certainly don't

Page 703

1 expect to be much longer.

2 JUDGE MUMBA: Okay.

3 MR. MISETIC: Your Honours, Madam President,

4 I just wish to alert you that we also may wish to have

5 rebuttal after that.

6 JUDGE MUMBA: Yes. In that case, the court

7 will adjourn and sit this afternoon at 14.30.

8 --- Luncheon recess taken at 1.06 p.m.

9

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Page 704

1 --- On resuming at 2.32 p.m.

2 JUDGE MUMBA: Yes. We continue with closing

3 arguments and rebuttal by the Prosecution, please.

4 MR. BLAXILL: Good afternoon, Your Honours.

5 I am obliged. I hope everyone can hear clearly.

6 Your Honours, I do have just a few points I

7 would like to make in rebuttal of the points made in

8 the closing address by the Defence.

9 The first issue being that of the adequacy of

10 evidence of armed conflict. You have heard from

11 principally Dr. Mujezinovic and from Mr. Kavazovic, and

12 you have heard, in the course of their evidence in

13 chief, which, as I understand, went unchallenged by the

14 Defence, that certainly from April of 1993, there was

15 clear evidence of conflict, not just attack on civilian

16 population by the HVO but also from the evidence of

17 Kavazovic, who was arrested in late April '93 and was

18 taken to the lines to dig trenches, that when he got

19 there, there was active firing between two established

20 lines of armies, the ABH and the HVO, and that he

21 worked initially under the bullets, as it were, flying

22 between the two parties.

23 Both of those then gave the ongoing evidence

24 relating to the continuation of the conflict through

25 and beyond the period of mid-May, and you have heard

Page 705

1 how both eventually heard about peace negotiations, at

2 the very least, and in the case of Mr. Kavazovic, an

3 eventual order for general cease-fire.

4 I suggest that with the detail given by

5 Dr. Mujezinovic as to events, as to Mr. Kavazovic's

6 observations as a serving soldier, and, indeed, then

7 the anecdotal, if you like, evidence of the two ladies,

8 Witnesses B and C, as to the conditions prevailing,

9 that the existence of a situation of armed conflict I

10 respectfully suggest, is an inescapable conclusion.

11 There has been reference also to the question

12 of dates, lack of precision as to dates, and it is

13 clear that when it was -- if you look at the

14 indictment, the initial pleading is "on or about the

15 15th of May."

16 Now, one can polarise on a date, but it has

17 been pleaded to be bracketing the specific date, and

18 indeed several of the witnesses have made reference to

19 the fact that they are weak on specific dates, one of

20 them confirming that a date is hard to remember in

21 terms of the prevailing conditions that they had in

22 their community at the time. Many were saying, "Well,

23 it was on or about" or "It was a few days before," or

24 "I was there six, eight, or ten days. I'm not sure."

25 I think this is a common thread and one which Your

Page 706

1 Honours may feel is an understandable common thread

2 amongst people who were living through those times and

3 those conditions.

4 In point of fact, Witness A never volunteered

5 any information as to the date. My learned friend,

6 Ms. Sellers, actually asked her about what happened to

7 her in "mid-May," and the only references thereafter in

8 the course of her testimony, to the best of my

9 recollection, were when counsel for the Defence would

10 state to her, "And on the 15th of May, what time were

11 you arrested?" or "At what hour did this happen?" or

12 "What happened on the 15th of May?" rather than any

13 question of asking her to confirm "Was it indeed the

14 15th of May?" I think if you examine the transcript,

15 the answers went to the substance of the question after

16 the date, not confirming the date itself.

17 I would suggest, Your Honours, that in such

18 circumstances as appertained, some, let us use the word

19 "woolliness" as to dates by people involved is not

20 inconsistent with true recollection of events that took

21 place.

22 It is a question, really, of consistency.

23 You have heard numerous suggestions of inconsistency in

24 the various hypotheses that my learned friend,

25 Mr. Misetic, has put to you, but there are certain

Page 707

1 quite concrete consistencies, if you like, that give a

2 logic to the events, and these, I think, are the most

3 telling features and factors of the case.

4 We have a situation where, initially,

5 Witness D speaks to his arrest on a given date, a date,

6 in fact, documented, and that document is not

7 disputed. Subsequently, Witness E is arrested and

8 informed by the people arresting him, the same people,

9 Jokers, that they "already had D in their hands." When

10 arriving at the Bungalow, the Defence witness himself,

11 Witness E, states that he saw Witness D present. He

12 saw some of the beating of Witness D. He particularly

13 noted the manner in which the feet were beaten. That

14 is repeated. That is repeated by Witness A and

15 Witness D in the incident in the pantry, the manner,

16 the perhaps unusual or distinctive manner, in which the

17 feet of these people were beaten.

18 I suggest that the evidence of Witness E

19 alone lends credibility to Witness D stating how long

20 he was at the Bungalow, the fact that he says he spent

21 two nights there, and it was then on the third, I take

22 the first day as being the day of arrest, the third day

23 that the confrontation took place.

24 The Jokers by then had arrested Witness A,

25 and one can ask one simple logical question: Unless

Page 708

1 there had been something in their minds, in the minds

2 of the interrogators, to "B," the interrogator in

3 chief, if there was not something in his mind as to a

4 link between "D" and "A", what on earth would be the

5 point of these two people being arrested and being

6 placed in the confrontation? It would be meaningless.

7 So I suggest that those very circumstances

8 show that clearly, when Witness A was arrested and

9 brought in, Witness D was already there, and that the

10 link between them was already known to those who would

11 be speaking to Witness A.

12 The interrogation proceeds, and you have

13 heard a clear identification that the interrogator was

14 the man who came in, referred to as Furundzija, a man

15 who Witness A then said her various questions,

16 pertinent types of questions, about her two sons of

17 military age. She does have two sons who then were of

18 military age. Questions about persons she knew and

19 persons she may have had contact with within the

20 community.

21 This interrogation was clearly, I would

22 suggest from that evidence, a logical -- we're

23 following a course of logic from evidence which is

24 largely uncontested and is a matter, I suggest, of

25 concrete fact.

Page 709

1 If we then take it forward, we have Witness D

2 who is brought in. And, indeed, who is part of the

3 group bringing him in? It is the same Mr. Furundzija,

4 a Mr. Furundzija whom Witness A has said has been her

5 interrogator. The confrontation, she alleges, was

6 threatened by him; and is she not right in that

7 contention? Is this some kind of imposed memory or

8 factual scenario that she has subsequently acquired? I

9 would suggest not, Your Honours. I would suggest not,

10 because, again, why would she be there? Why would "D"

11 be there? Why would this confrontation take place?

12 The reality is they suspected "D" of being essentially

13 a traitor, and they suspected him of helping the

14 Muslims, and he had aided Witness A.

15 Taking that scenario forward, we then have

16 the situation. And this is not where I'm trying to

17 pick random facts to say, "Oh, here is an

18 inconsistency; therefore, the story is untrue or badly

19 recollected or rolled through various psychological

20 pressures." I'm following the logic as I see it, Your

21 Honours, of the way the evidence has panned out.

22 In that room, "D" and "A" are present

23 together. They recognise each other. The condition of

24 "D" is described by "A"; the condition of "A"

25 described by "D." She is deeply upset; she is crying;

Page 710

1 she is naked, bar a small blanket. And he in turn,

2 "D", looks badly beaten to her quite, sort of,

3 shocking condition.

4 There is clear evidence that if that

5 observation would reflect the allegations that are made

6 about previous events, what "D" has said about his

7 treatment by the other man in the Bungalow, and her

8 treatment in the larger room prior to being taken to

9 that pantry. That is consistent, Your Honours. It is

10 consistent.

11 Then she describes the events that took

12 place, and here we go to what was another --

13 originally, as I understand it, the challenge that was

14 put to Witness A in response to Your Honour, Judge

15 May. What was the challenge that was put, and Mr.

16 Misetic put his challenge, that "Whatever happened to

17 you in that room, Mr. Furundzija wasn't present."

18 This, perhaps, is the real issue here, is it? I know

19 not.

20 But we say that Mr. Furundzija is the

21 interrogator. He's arranged the confrontation. This

22 confrontation is not some kind of time warp event that

23 stops the clock dead on what has happened before, and

24 then we move on anew with something different. This is

25 something which occurs in the course of the events of

Page 711

1 the interrogation. Two parties are brought in. The

2 confrontation takes place. Witness A recalls questions

3 being asked. That may be disputed, but the comment by

4 the Defence, I understand, was that here is a lady who

5 is not corroborated but, indeed, contradicted by

6 Witness D. I'm not so sure that that is a

7 contradiction.

8 Your Honours, Witness D may have had

9 reasons. He's a young Bosnian Croat. He may have had

10 reasons to be a little cautious in how much he said

11 about one of his own kind who is on trial, but the fact

12 of the matter is this: He does not recall and he said,

13 "I did not hear Furundzija asking questions," but he

14 did say that Mr. Furundzija was in the doorway area.

15 He made reference to his presence with the other Jokers

16 just outside the room, just outside the room, a room

17 that was described as small, the events going on in

18 front of an open door a very short distance from that

19 doorway.

20 Therefore, I suggest that that is not pure

21 contradiction of Witness A. He cannot say for sure one

22 way or the other whether Mr. Furundzija spoke questions

23 at that time. That does not mean that Witness A does

24 not recall correctly or that she is not accurate or

25 truthful in what she has said.

Page 712

1 Then we go through the quite horrendous

2 description of what the Defence have just referred to,

3 that perhaps this man, let's call him Accused B,

4 Accused B on a rampage. Well, one wonders what rampage

5 this man would have, what motivation he would have

6 vis-à-vis Witness A, since apparently, if he had a

7 motive at all, it would be some kind of punishment of

8 Witness D for, I think the expression used was, for

9 ratting him out.

10 The bottom line, Your Honours, is that we

11 have, in fact, corroboration here in the main. Witness

12 D corroborates, I suggest, far more than he, in any

13 way, not so much contradicts, but certainly may not

14 have recalled every detail.

15 If two witnesses do not recall every detail,

16 does that not speak to the potential truth of their

17 recollections and the truth of their stories? Two

18 people who come before a courtroom and almost verbatim

19 echo each other do not necessarily mean that they are

20 highly credible. It is sometimes the small

21 differences, the differences in perspective, the

22 differences in their level of recollection, which speak

23 to the truth of the circumstances.

24 Your Honours, it's been suggested that,

25 therefore, the lady, Witness A, despite this scenario,

Page 713

1 despite these small areas of fact which give

2 considerable bolster to the concept of what has really

3 happened here, we are then invited to say, "Well, in

4 fact, this is all due to memory being implanted later,"

5 she has suffered this and that, and as a result we have

6 a lady whose recollections sadly, despite the tragedy

7 affecting her, her recollections are totally

8 unreliable.

9 Your Honours, I would take issue with that on

10 the basis that, with respect, the expert evidence

11 you've heard is very much general, was expressed to be

12 so, and Dr. Loftus confirmed that she had had a

13 conversation with the Defence lawyers. She had skimmed

14 a couple of statements. She had absolutely no

15 personal, clinical, experimental or in-depth study of

16 anything, documents, people, or the case at all. And

17 she has to apply simply some very general principles.

18 Her examples included things like two-minute

19 and 15-second film clips used in a controlled way with

20 experimental people to gauge reaction. I think there

21 is a considerable difference between that kind of

22 scenario and the reality of what this case represents

23 in terms of the time, the time span of the events

24 happening to Witness A, to Witness D, and also to the

25 elements such as, I think the expression was, "core

Page 714

1 details."

2 The identification of your interrogator, if

3 you are going to focus, surely, on such an event,

4 things of significance would be who is the

5 investigator, who is that person asking you the

6 questions, and also who is that person, perhaps,

7 pressing a knife against you? They would both be core

8 details you would remember. The number of windows in

9 the wall, how many other people present might be

10 peripheral information you might not be so sure of.

11 But I would suggest that, to use Dr. Loftus's concept,

12 these would be core details in respect of which there

13 is certainty on the part of witnesses.

14 I will go to essentially my last point, Your

15 Honours, and that is this: When we come to the

16 identification of Mr. Furundzija, we have an abundance

17 of identification. It appears pretty much undisputed

18 from the facts that he was a member of the Jokers, he

19 worked at the Bungalow, he worked out of the Bungalow.

20 His role was variously described but, in the main, the

21 witnesses felt he had some situation of authority. He

22 appeared, if he carried out an interrogation, that

23 would indicate that to be so. But the main thing was

24 each and every one person who was invited to look

25 around this courtroom unhesitatingly identified the

Page 715

1 man, Mr. Furundzija; and what is more - and what is

2 more - it is suggested that he was identified because

3 he is sitting next to the uniformed man. In fact, as I

4 recall each witness, their initial response was to

5 refer to Mr. Furundzija as the man in the suit wearing

6 a tie with dark hair, with headphones, whatever, and

7 then a couple, I believe, stated "Sitting next to the

8 man in the blue uniform shirt."

9 There is no evidence, no evidence put forward

10 in this case, Your Honours, that Mr. Furundzija was

11 planted in the mind of Witness A, and that is another

12 factor I would ask you to consider very carefully.

13 Nothing has been suggested that somebody came along and

14 said, "Mr. Furundzija was the man who ..." The

15 evidence does not bear out that suggestion. As a

16 result, what I think is so telling in this case is that

17 two people have come together to give evidence in this

18 court some four years from the time they last met and

19 largely corroborating each other as to facts, without,

20 as I believe, they confirmed in evidence, without any

21 contact over those four years. It would be, would it

22 not, stretching credulity to believe that these two

23 people could have had their recollections so repressed,

24 so altered, or so suggested by outside forces that they

25 are both so totally mistaken? I honestly cannot

Page 716

1 believe that to be the case.

2 Those are the representations that I have to

3 make, Your Honours. I'm obliged.

4 JUDGE MUMBA: Thank you. Anything in

5 rebuttal -- in rejoinder, rather?

6 MR. MISETIC: Pardon me?

7 JUDGE MUMBA: In rejoinder, yes.

8 MR. MISETIC: Yes. A few points, Your

9 Honours. First, let me address the comments of

10 Mr. Blaxill.

11 The argument here from the Defence with

12 respect to the date has nothing to do with whether it

13 was pleaded properly in the indictment, it has to do

14 with Witness A's memory. It has to do with not just

15 her memory but whether this was a single continuation

16 one day or whether it was over the course of three

17 days.

18 I posed the question before we broke as to

19 whether the Prosecution could explain why, five years

20 of claims by Witness A -- forget about what is in the

21 indictment -- Witness A for five years has said it

22 happened on the 15th of May.

23 The statement that she never confirmed that

24 is also incorrect. She volunteered that herself. I

25 refer the court to the trial transcript of the

Page 717

1 cross-examination of Witness A to page 460, the

2 question begins on line 15. It is quite a long

3 question. To shorten it, I'll say, "... 'Dragan told

4 me they were taking me to this weekend house and that

5 someone would come to take me home.'" The answer is:

6 "It was that day, the 15th of April." And then she

7 corrected herself a little bit later on.

8 So the statement that she never volunteered

9 that in this courtroom is incorrect.

10 Secondly, the Prosecution makes a big deal

11 about the fact that people have confirmed that

12 Witness D had his feet beaten with a baton. Yes, they

13 have that confirmed and they have it confirmed that it

14 was by Accused B, and what that has to do with whether

15 Mr. Furundzija was ever present during any of this

16 escapes me.

17 Third, with respect to the questioning,

18 again, the Prosecution has no answer. Witness A, now

19 says Mr. Blaxill, was brought to the Bungalow because

20 of her supposed relationship with Witness D. Why? It

21 makes no logic. I mean, I put the question directly to

22 Witness A. "This whole period in the big room that you

23 were there, did anybody ask you if you knew

24 Witness D?" And she said "No." She would have readily

25 given her response because we know she did right after

Page 718

1 that. As soon as she was brought to the pantry,

2 someone asked her, "Do you know him?" And she said

3 "Yes." It's inexplicable to me. It leads to the

4 conclusion, the inescapable conclusion, that this was

5 done by Mr. Bralo.

6 Now, Mr. Blaxill poses the question: "What

7 is the motivation for Accused B?" Well, let me ask:

8 What is the motivation for Accused B when Mr. Kavazovic

9 is digging trenches to put a pickaxe next to someone's

10 head and threaten them if they don't perform the sign

11 of the cross properly?

12 I believe my colleague knows full well that

13 Accused B is not, or was not at the time, a rational

14 person and was apparently -- and I can base this on the

15 evidence -- known to excess. So why would he rape

16 Witness A? He raped Witness A because it was his modus

17 operandi. Making Muslim prisoners cross themselves,

18 all sorts of atrocities that are attributed to him. So

19 there is no logic as to why he would want to rape

20 someone.

21 Core details. Mr. Blaxill says, "Well,

22 wouldn't Witness A remember core details, like who was

23 interrogating me, who was threatening me, et cetera?"

24 Well, doesn't the same apply to Witness D? Witness A

25 says Witness D was in the room being questioned by

Page 719

1 Furundzija. If this is such a core detail that

2 wouldn't be forgotten, why wouldn't Witness D remember

3 this? Why wouldn't Witness D corroborate this and say,

4 "You know what? This was a joint production between

5 Accused B and Mr. Furundzija," and they were both in

6 the room and, as Witness A said, parallel questioning,

7 rapes and beatings, et cetera. There is no evidence of

8 that other than Witness A's recollection. Witness D

9 directly contradicts that. I cannot emphasise that

10 point enough, and I will explain later why I don't

11 think that is really a point in controversy here.

12 Is there evidence that this name was

13 planted? Yes, there is evidence that this name was

14 planted. The evidence is, it was put to her in July of

15 1995, "Who is Anto Furundzija? Describe him." She

16 missed badly. That's the evidence of why this is a

17 plant. She never knew Anto Furundzija. And then

18 Brenda Hollis and Plony Bos come in and say, "Give us

19 an ID then." "Now, there's a problem, because I don't

20 really remember what he looks like." So he's a

21 172-centimetre blond-haired man with small features.

22 "Oh, but then in December of 1997, I see a BBC

23 picture. I see now what he is. Black hair, strong

24 jaw." She saw the head shot. That's the evidence that

25 this was a plant because she couldn't identify him.

Page 720

1 You don't need to take my word for in-court

2 identifications. I simply refer you to the opinion and

3 judgement in the Tadic case with respect to what the

4 Trial Chamber found about the reliability of in-court

5 identifications.

6 I said in my opening statement, "Confidence

7 is not a barometer of reliability." May 15th is

8 important. May 15th is one of those things that she

9 said, "This is absolutely the day it happened." Now,

10 if they're saying she's wrong about the date, then

11 they're saying their own witness is wrong. If they are

12 saying she's right about the date, then it couldn't

13 have all happened on one day and, most importantly,

14 she's wrong about the pantry. I cannot emphasise

15 something enough.

16 Their own witness says, "No, it didn't happen

17 this way." How can a witness come in and say, Witness

18 A, in particular, "This is the man who was

19 interrogating me, questioning me. Every time I gave

20 the wrong response, the rapes would continue on," et

21 cetera, et cetera, et cetera. And another person in

22 the small room, as Mr. Blaxill describes it, who is

23 there says, "You know, I don't remember things that

24 way."

25 Your Honours, Witness D, had we called him in

Page 721

1 our case in chief, could not have testified better. He

2 could have, actually, but the point is, if she can get

3 something wrong like that, then, Your Honours, you

4 cannot rely on her beyond a reasonable doubt.

5 Let's look at this case now since it's at its

6 conclusion and this issue that Witness D is now a

7 corroborating witness. As you are well aware, the 1995

8 statement was the statement upon which this entire case

9 was based. You've read the indictment as many times as

10 I have, if not more. The initial sexual assault, the

11 beatings, the interrogation, et cetera, in the big room

12 was alleged in the indictment to have occurred outside

13 of Mr. Furundzija's presence. Any suggestion now that

14 that's not the case is a bit disingenuous, because if

15 he were in the room, I would imagine that the

16 Prosecution would have filed Counts 9, 10 and 11

17 against Mr. Furundzija too. But that's what the 1995

18 statement said, and that's not what they believed.

19 So what happens then in the meantime? Well,

20 Witness A testifies in another case, and she totally

21 puts Mr. Furundzija in a different location. Now he's

22 there from the beginning. So what to do? Well, they

23 continue on with the theory that this is a pantry

24 case. That's confirmed in pleadings filed here, most

25 specifically, the Prosecutor's response to the 29

Page 722

1 April, 1998 order. It is unmistakable that the

2 Prosecutor, as of that date, as of May 1, actually,

3 thought that Anto Furundzija arrived after Accused B

4 had done all of this.

5 They filed a pre-trial brief towards the

6 middle of May, I don't recall the exact date, saying

7 the same thing. So what happened between the middle of

8 May and this case to now to say, "All right. Now he's

9 there at the beginning." What happened was Witness D

10 was interviewed and Witness D did not corroborate the

11 pantry any more. So what to do? You shift the

12 spotlight off the pantry, you make him present in the

13 big room, and you say the pantry is a second phase.

14 It's a continuation, because now you know you have a

15 direct contradiction. That's the way you try to make

16 this case work. But it doesn't work, because Witness D

17 puts him outside of the room, and Witness A has been

18 directly contradicted. It's unmistakable.

19 Your Honours, I have just a couple of more

20 remarks in closing. The standard at this Tribunal is

21 beyond a reasonable doubt. If I may just say this to

22 you: If behind me today were sitting Accused B and he

23 was sitting in that chair, and based on the evidence

24 that you have heard in this case, you would have heard

25 the testimony of Witness A; you would have had the

Page 723

1 corroborating testimony against him of Witness D; you

2 would have had Witness E who said this was his modus

3 operandi, beating on the feet, that he was in a rage

4 for some period of time; I suggest to you that you

5 would not have to exit that door today to have been

6 convinced already beyond a reasonable doubt of his

7 guilt. You wouldn't have to leave this room to have

8 already come to that conclusion. I don't think you can

9 say the same about Anto Furundzija.

10 If you have to go back to your chambers and

11 start pouring over the transcripts to try to figure out

12 ways as to whether Anto Furundzija could have been in a

13 particular place or could not have been, then I suggest

14 to you that you already have a reasonable doubt about

15 this case.

16 Your Honours, again, the Defence respectfully

17 requests you to enter an order acquitting Anto

18 Furundzija. And we thank you very much.

19 JUDGE MUMBA: Thank you. Thank you very much

20 to all the parties. This is the close of the case in

21 this case of the Prosecutor versus Anto Furundzija.

22 The Trial Chamber will adjourn and consider the issues

23 before the Trial Chamber. And the date for judgement

24 will be provided to the parties in due course. The

25 court will adjourn.

Page 724

1 --- Whereupon hearing adjourned sine die

2 at 3.03 p.m.

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