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
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
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
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)
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
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
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
1 course of business in the unit, and it's my
2 understanding, in talking to counsel, that they have no
4 JUDGE MUMBA: Is that so, Prosecution?
5 MS. SELLERS: We have no objection, Your
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
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
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?
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
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
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
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
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
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.
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?
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
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
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
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
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
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
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
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
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
1 the ELMO can be operated. Can the usher please
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.
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
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 --
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
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
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
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"?
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
24 I'm concerned about this because we're not
25 a jury and these are all matters which, even for
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
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
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
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
24 A viewing of the photograph on television in
25 the interval between these two attempts to retrieve
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
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
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
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
1 memories of the two persons with respect to the same
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?
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
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
18 A. The transcripts in this proceeding? Is that
19 what you're referring to?
20 Q. Have you read any transcripts from the
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
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
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.
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?
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.
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
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
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
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
2 A. It's my understanding that Witness A was
3 threatened with a weapon, perhaps on more than one
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
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.
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?
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
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
16 JUDGE MUMBA: Ready to move on to closing
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,
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
1 used in the case of chief; is that a correct
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
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
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?
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
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
16 MR. BLAXILL: After the
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.
1 JUDGE MUMBA: Yes. You may proceed, Mr.
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
24 JUDGE MUMBA: Thank you. Please proceed.
25 WITNESS: DRAGAN STRBAC
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
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
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
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
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.
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
5 Q. When you were growing up in Dubravica, did
6 you have any occasion to visit in Anto Furundzija's
8 A. Yes.
9 Q. Did he visit your home?
10 A. Yes.
11 Q. What kind of things did you do together in
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
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
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
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
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
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?
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
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
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
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
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
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.
1 JUDGE MUMBA: Thank you. Any
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
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
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
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
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.
1 THE INTERPRETER: Can the speaker please slow
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
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
6 Your Honours, if I can examine these in
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
25 time period, beat him up."
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
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
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
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.
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
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,
24 Now, I will grant you that there is evidence
25 that there were two Antons that day or within the
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
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.
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
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
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
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.
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,
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.
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.
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
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
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
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,
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
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
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,
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
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
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
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
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.
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.
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?
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
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,
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
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
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
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
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
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.
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
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
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
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)
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
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.
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
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
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,
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
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
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
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."
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
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,
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
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
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
24 Now the Defence starts to ask questions about
25 the key witness's ability to identify the accused, to
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
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)
13 Page 697 redacted
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
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)
19 (redacted)." That seems to
20 be stretching for duality, Your Honours.
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
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
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
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
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.
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
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
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
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
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
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
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.
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;
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
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
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
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
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
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.
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,
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
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
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
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
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
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
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
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
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
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.
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
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
25 Your Honours, Witness D, had we called him in
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
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
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.
1 --- Whereupon hearing adjourned sine die
2 at 3.03 p.m.