1 Wednesday, 11 June 2008
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 9.02 a.m.
5 JUDGE ORIE: Good morning to everyone. Mr. Registrar, would you
6 please call the case.
7 THE REGISTRAR: Good morning, Your Honours. Good morning to
8 everyone in the courtroom. This is IT-06-90-T, the Prosecutor versus
9 Ante Gotovina et al.
10 JUDGE ORIE: Thank you, Mr. Registrar.
11 Before I invite the Prosecution to call its next witness, I'm
12 addressing you, Mr. Waespi, in relation to the previous witness, the
13 Chamber noticed that two documents which were announced as being attached
14 to the witness statement have not been dealt with during his testimony
15 and the Chamber wonders whether you are still seeking to have these
16 admitted, that is 65 ter 3187, and 65 ter 2372 as listed under numbers 13
17 and 14 in your 28th of May, 2008 submission of Rule 92 ter statements and
18 associated exhibits.
19 MR. WAESPI: Thank you, Mr. President. I'm sure that they are
20 not needed. The reason probably but I'll check over the break, is that
21 they were already admitted by another witness or we decided it's not
22 relevant. I think one of them was outside the indictment period, but I
23 will check and give you a definite answer after the break.
24 JUDGE ORIE: Yes. We'll then hear from you on that matter.
25 Apart from that, if there are no other procedural issues, I would
1 like to invite the Prosecution and will it be you, Mr. Hedaraly.
2 MR. HEDARALY: Yes, it will, Mr. President.
3 JUDGE ORIE: Will take the next witness. Your next witness would
5 MR. HEDARALY: Witness 106, Mr. Dijkstra.
6 JUDGE ORIE: Yes, Mr. Dijkstra.
7 MR. HEDARALY: And Your Honours, in the meantime, if I may say
8 that there are a few administrative matters that we would like to deal
9 with but we can do it at the end of the testimony of the witness as
10 regarding previous witnesses and their specific requests made by the
11 Chamber with respect to these previous witnesses. It shouldn't take more
12 than five minutes but just so that the Chamber is aware.
13 JUDGE ORIE: Yes.
14 [The witness entered court]
15 JUDGE ORIE: Then you also asked us to give permission to add
16 three witness-related documents to the Rule 65 ter exhibit list. I do
17 understand that there is no objection against that from the Defence
19 MR. KEHOE: With regard to Mr. Dijkstra.
20 JUDGE ORIE: Yes.
21 MR. KEHOE: No.
22 JUDGE ORIE: Then permission is given so the request is granted
23 to add these to the 65 ter list.
24 Good morning, Mr. Dijkstra.
25 THE WITNESS: Good morning, Your Honour.
1 JUDGE ORIE: Before you give evidence in this court, the Rules of
2 Procedure and Evidence require you to give a solemn declaration that you
3 will spec the truth, the whole truth and nothing but the truth.
4 Mr. Usher now hands out to you the text of the solemn declaration and I'd
5 like you to make that solemn declaration.
6 WITNESS: SWITBERTUS JOHANNES DIJKSTRA
7 THE WITNESS: I solemnly swear that I will speak the truth, the
8 whole truth and nothing but the truth.
9 JUDGE ORIE: Thank you, please be seated, Mr. Dijkstra.
10 THE WITNESS: Thank you.
11 JUDGE ORIE: Mr. Dijkstra, the Chamber was informed that you had
12 some problem with your shoulder which is confirmed by your appearance at
13 this moment. We were asked to have breaks a bit earlier than usual, that
14 is, after approximately one hour. If there is any moment where you feel
15 uncomfortable as far as your physical condition is concerned, and please
16 do not hesitate to address me, and we'll seek to accommodate your needs.
17 THE WITNESS: Thank you very much.
18 JUDGE ORIE: Mr. Hedaraly.
19 MR. HEDARALY: Thank you, Your Honours.
20 Examination by Mr. Hedaraly:
21 Q. Good morning, Mr. Dijkstra. Could you please state your full
23 A. Switbertus Johannes Dijkstra.
24 Q. And what is your current occupation?
25 A. I'm a Major in the Netherlands
1 Q. Could I please ask Mr. Usher to provide hard copies of the
2 statement to the witness. Major Dijkstra, do you recall providing a
3 witness statement to the Office of the Prosecutor on the 7 December,
5 A. I do.
6 Q. Could we please have 65 ter 4923 on the screen and did you have a
7 chance to review this statement before today?
8 A. Yes, I have.
9 Q. And it's going to come up on the screen in a few seconds. And
10 when it does, can you please confirm that the statement you see on the
11 screen is the one that we just have discussed?
12 A. That is the same one, yes.
13 Q. Can we have 65 ter number 4924, please. And Mr. Dijkstra, do you
14 remember providing a supplemental witness statement to the Office of the
15 Prosecutor that you signed on the 12th March, 2008 based on an interview
16 on the 6th of December, 2007?
17 A. Yes, I do.
18 Q. And do you remember looking at that statement before today?
19 A. Yes, I have.
20 Q. Is that the statement that we see on the screen now?
21 A. That is the same one, yes.
22 Q. Do these two statements accurately reflect to the Office of the
23 Prosecutor in the course of those interviews?
24 A. Yes, they do.
25 Q. Are the contents of those statements that you signed true to the
1 best of your knowledge and recollection?
2 A. Yes, they are.
3 Q. And if you were asked the same questions in court today that you
4 were asked in the course of those interviews, would you give the same
6 A. Yes, I will.
7 MR. HEDARALY: Your Honours, at this time, I would like to have
8 65 ter 4923 and 4924 admitted into evidence under Rule 92 ter.
9 JUDGE ORIE: From the written submissions, I do understand that
10 there are no objections.
11 MR. KEHOE: There are no objections to the admission. It's my
12 only comment on them Judge is consistent with the Chamber's comments
13 about the witness' opinions that they are -- they are not part of the
14 factual aspects here. We didn't go through and redact those portions
15 because of those efforts so while I don't object to the admission, of
16 course giving Your Honour's prior guidance on opinions, they are -- the
17 admission is to facts and what he saw and facts that he observed.
18 JUDGE ORIE: Yes, if any conclusions are drawn from the
19 observations of a witness, it's not necessarily that the Chamber draws
20 the same conclusions as the witness did. At the same time, you could
21 exclude that the Chamber would draw the same conclusions but then always
22 on the totality of the evidence and not just on the basis and because the
23 witness drew such conclusions.
24 MR. KEHOE: Yes, Your Honour.
25 JUDGE ORIE: Yes.
1 This being on the record, Mr. Registrar, the 1995 statement of
2 Mr. Dijkstra.
3 THE REGISTRAR: Your Honours, this is 65 ter 04923 and it becomes
4 Exhibit P428.
5 JUDGE ORIE: P428 is admitted into evidence.
6 The next statement is the 2007 -- December 2007 and 12th of March
7 2008 statement would be ...
8 THE REGISTRAR: Your Honours, this is 65 ter 04924 and becomes
10 JUDGE ORIE: P429 is admitted into evidence.
11 Mr. Dijkstra, when I address you as Mr. Dijkstra rather as Major
12 Dijkstra, that is not in any way out of disrespect for the rank you are
13 holding but because that's how I usually address witnesses, that is,
14 without specific reference to a rank or position.
15 Please proceed, Mr. Hedaraly.
16 MR. HEDARALY: Thank you, Your Honour. At this time, I would
17 also like to have admitted into evidence 65 ter 4925, 4926, and 4927
18 which are exhibits to the supplemental statement of Major Dijkstra and
19 since the foundation is laid in there, I would like to have those
20 admitted as well, pursuant to the 92 ter submissions.
21 JUDGE ORIE: I do understand from the written submissions that
22 there are no objections, it's mainly marking and further clarification.
23 Mr. Registrar.
24 THE REGISTRAR: Your Honour, 65 ter 04925 becomes Exhibit P430.
25 65 ter number 04926 becomes Exhibit P431. And 65 ter number 04927
1 becomes P432.
2 JUDGE ORIE: P430, P431 and P43 are admitted into evidence.
3 You may proceed, Mr. Hedaraly.
4 MR. HEDARALY: Thank you. Your Honour, there is an additional
5 document that is referred to in the witness statement but that is not an
6 exhibit to the statement. It is not of critical importance to the
7 Prosecution but since the statement is now admitted, we can also admit
8 that document which is a report made by Major Dijkstra on the 8th of
9 August, it's at paragraph 30 of his is supplemental statement, and I
10 don't know -- if that's something that the Chamber would like to have as
11 well. We have it as 65 ter number 5199.
12 JUDGE ORIE: You intend to tender this from the bar table as it's
13 often called.
14 MR. HEDARALY: It's just a situation where it was not an exhibit
15 so to have the evidence in the statement admitted with the specific
16 reference to a document which is not on the record may be -- may not be a
17 helpful to the Trial Chamber so that's the only reason.
18 JUDGE ORIE: Any reason.
19 MR. KEHOE: I think we can clear to this up at the break if I can
20 look at this document, I can probably just give a quick glance to it and
21 get past it.
22 JUDGE ORIE: Yes. Then the Chamber will further hear from the
23 parties in this respect.
24 Mr. Hedaraly.
25 MR. HEDARALY: Thank you, Mr. President.
1 Q. At this time, I would like to read out a short summary of the
2 evidence of the witness contained in the two witness statements and the
3 witness has been informed of the purpose of this exercise.
4 JUDGE ORIE: Please do so.
5 MR. HEDARALY: Major Dijkstra was a United Nations Military
6 Observer in Sector South in 1995. He was stationed in Benkovac until 26
7 July 1995 after which date, he became a logistics officer stationed in
8 Knin at the UNMO headquarters where he stayed until 1 December 1995.
9 He observed how there was a lack of heavy weapons, trenches or
10 defence positions in Knin prior to Operation Storm. Major Dijkstra heard
11 the shelling of Knin start at 5.00 a.m. on 4 August 1995. He was
12 sleeping at the time and was awoken by the sound of rockets coming from
13 multiple rocket launchers also called MRLs.
14 After being taken to the UN compound at around 7.00 a.m., he
15 continued to observe the shelling from the third-floor balcony.
16 Major Dijkstra heard the shelling again on the 5th of August starting at
17 5.20 a.m.
18 close to the UN camp. He saw that it had destroyed a cart and that about
19 six people had been killed by that shell.
20 When Major Dijkstra was allowed to come out of the UN camp on the
21 8th of August, he noticed that the town had been completely ransacked.
22 He was surprised to see a large discrepancy between the heavy shelling he
23 had heard and the relatively little damage he saw.
24 In the course of the following weeks, he observed looting and
25 arson including looting and arson committed by soldiers in military
2 This concludes my summary, Your Honours.
3 JUDGE ORIE: Thank you, Mr. Hedaraly.
4 MR. HEDARALY:
5 Q. Major Dijkstra, I just want to ask you a few questions to clarify
6 what was said in your two statements that I just summarised. My first
7 questions relate to your time in Benkovac. So up to 26 July, 1995. If
8 we can have 65 ter number 5186, please, on the screen.
9 Now, in your statement, Major Dijkstra, you stated that there
10 were some military barracks just outside of town on the road to Rastevic.
11 Do you remember making that statement and remember those barracks?
12 A. Yes, I do.
13 Q. If I can have the assistance of Mr. Usher to help Mr. Dijkstra
14 locate, if he can, where the location of those barracks are.
15 A. Forgive me, I'm truly right-handed but this should be, as far as
16 I remember, somewhere in this region and coming from Benkovac on the
17 right side of the road.
18 Q. Thank you, Major Dijkstra. Would you be able to write letters MB
19 for military barracks or am I asking you too much?
20 MR. KEHOE: Excuse me, you were, if the usher can just write it
21 for him where he wants it that would be just as easy.
22 JUDGE ORIE: We leave it to Mr. Dijkstra, whether he feels
23 comfortable to do it or not. If you need assistance, you'll let us know,
24 Mr. Dijkstra.
25 THE WITNESS: You better do it, it's not going to work. So just
1 in the circle.
2 JUDGE ORIE: And MB stands for?
3 MR. HEDARALY: Military barracks. If we could have that admitted
4 into evidence.
5 THE REGISTRAR: As P433, Your Honours.
6 JUDGE ORIE: P433 is admitted into evidence. The no objections
7 from Mr. Kehoe did not appear on the transcript but repeated by me, they
8 now do. Please proceed.
9 MR. HEDARALY: Thank you, Mr. President. If we can have Exhibit
10 D248 on the screen, please.
11 Q. Major Dijkstra, what you will see on the screen in a few seconds
12 is a map of Benkovac prepared by the Defence on which they have listed a
13 number of locations on it. As soon as we have it, I'll ask you about
14 some of those locations and if we can go to page 3 of that document when
15 it's up, Mr. Registrar, please. Thank you.
16 First of all, let me ask you on this picture you see in front of
17 you, how is the military barracks that you have just identified on the
18 previous map, how is it described here?
19 A. It's described as B Macura barracks.
20 Q. And looking at this map it's at the approximately same location
21 as you marked on the other map, and it's consistent with your
23 A. Looking at that location, that should be the same barracks that I
24 described in my testimony.
25 Q. Looking at these other locations on the map, for example let's
1 start at the bottom where it says communication centres of the 3rd
2 brigade of the ARSK and right underneath, command of the 3rd brigade ARSK
3 do you remember that these facilities existed at that time in Benkovac?
4 A. No, I don't.
5 Q. What about what is labelled as the fireman's hall defence office,
6 do you remember that facility being in the location where it's described
7 on this map?
8 A. I can't be positive. I've been to Benkovac after 1995 and I see
9 the fireman's hall there and that looked new so I can't be positive that
10 that would be the same one if it's in the same location.
11 JUDGE ORIE: Mr. Kehoe.
12 MR. KEHOE: Just with some clarity, Your Honour, if we look at
13 the question, the question is does he know or does he remember? I mean
14 the question is does he know. I think that's what Your Honours and the
15 Chamber want to know. Does he know about these facilities or not know
16 about these facilities and the question was a bit -- does he remember and
17 I think the issue here is one of knowledge. Does he know that those
18 facilities were there?
19 JUDGE ORIE: Yes, Mr. Hedaraly, the issue is whether the witness
20 would know at this moment, then of course there must be some moment of
21 remembrance anyhow because he's not at Benkovac at this moment but you
22 are invited to ask the witness not only whether he remembers from those
23 times when he was there but if he knows anything about the existence of
24 those locations at a later stage. Nevertheless, it is good for us to
25 know whether his knowledge stems from the time he was there or whether
1 his knowledge stems from any other source and whether he gained his
2 knowledge at a later stage.
3 Please proceed.
4 MR. HEDARALY:
5 Q. Major Dijkstra, do you remember -- I'm sorry, do you know whether
6 there was a building a facility called the JNA centre at the location
7 where it's identified on the map?
8 A. No, I do not.
9 Q. Can I ask you the same question about the post office, the police
10 station, the hotel, and you can take each of them in turn?
11 A. I know there was a police station, but looking at the situation
12 from the police station regarding to the hotel, I can't be positive if we
13 are talking about the same police station that I remember. I can't
14 remember being a post office because we never used the post office for
15 sending mail. The JNA centre I can't remember. The nun's convent not.
16 And what is it, the FCP of the 7th corps, I can't remember -- oh sorry,
17 that's in the barracks location; so the only thing I actually can
18 remember and have heard of at that time was the fireman's hall and that
19 should be around that location and the barracks then, of course.
20 Q. And to your knowledge, how was that fireman's hall being used, if
21 you know and/or if you remember?
22 A. I only heard it being referred to as the fireman's hall, maybe
23 somebody referred it as -- I say it -- a centre for emergency
24 dispatching -- how you call it, a call centre.
25 JUDGE ORIE: If you do not know exactly how to call it in
1 English, I might be able to assist you because I speak the same language
2 as you do.
3 THE WITNESS: [Dutch spoken]
4 JUDGE ORIE: Yes, now this is not caught by the -- I think the
5 witness said that in Dutch, "You would call it the centre room where all
6 the messages come in and from where control is exercised over what has to
7 be done."
8 I know that this is not the real procedure as he we usually have
9 it in court. If there's at any moment any doubt, just try to give the
10 Dutch name rather than -- because whatever you add to that, our
11 transcribers and our interpreters will be lost.
12 THE WITNESS: I know.
13 JUDGE ORIE: Mr. Hedaraly, please proceed.
14 MR. HEDARALY: Thank you for the translation, Mr. President.
15 Q. Now when you say it was the call centre where the message would
16 be received, are you talking when there are fires, emergency calls being
17 made or are we talking about --
18 MR. KEHOE: I object to the leading. I object to the leading.
19 Just -- the witness said what it was. I object to the leading from
20 counsel's question.
21 MR. HEDARALY: I'm sorry, I didn't really understand what he
22 meant by the call centre where messages were received. I'm just trying
23 to clarify that.
24 JUDGE ORIE: In view of the fact that the building was called the
25 fireman's hall, Mr. Hedaraly, may I is ask the witness whether it was
1 specifically for the purposes of reporting fires or whether it had any
2 broader use. Please proceed, Mr. Hedaraly.
3 MR. HEDARALY:
4 Q. Can you answer the question or do you want me to repeat?
5 A. I -- well, it will be an assumption, because nobody clearly told
6 me they said it's a fireman's hall and a call centre so from my own
7 experience in the military, and in the Dutch system, that should be the
8 call centre where the calls for fire or emergency come in.
9 JUDGE ORIE: It comes down, if you say, "I'm assuming this" then
10 it comes down to speculation. Let's refrain from that.
11 Mr. Hedaraly, please proceed.
12 MR. HEDARALY:
13 Q. Were there any, staying in the city of Benkovac -- we don't need
14 the map anymore -- were there any ARSK soldiers in the town of Benkovac
16 A. Yes, there were soldiers in the town.
17 Q. And were these soldiers in organised units or were they
18 individual soldiers?
19 A. As far as I have seen them, they were individual soldiers. I
20 haven't seen any group formations during my time.
21 Q. And what was these individual soldiers that you would see in
22 town, what would you observe them doing?
23 A. Well, if I may put it simply, doing their daily business,
24 shopping, walking around, sitting at bars or cafes.
25 Q. And were these individual ARSK soldiers that you saw in Benkovac,
1 to your knowledge, did they live in the town of Benkovac?
2 A. That's a difficult question because I haven't spoken to any of
3 them individually, at least not from the ones I saw in town. But it
4 looked like --
5 MR. KEHOE: I object to any answer. It's pure speculation.
6 MR. HEDARALY: Your Honour, he can answer based on his
7 observations even if he hasn't spoken to them.
8 JUDGE ORIE: The question is not asking for speculation as such.
9 The witness could have knowledge of it although he started telling us
10 that he didn't speak with any of them.
11 MR. KEHOE: Yes, Your Honour.
12 JUDGE ORIE: He might have checked the population registers --
13 MR. KEHOE: I understand it's possible. I didn't consider that
15 JUDGE ORIE: Yes. Yes. No it's not the most likely possibility
16 but --
17 MR. KEHOE: Yes.
18 JUDGE ORIE: Let's hear the answer of the witness.
19 MR. HEDARALY: Thank you, Mr. President. I mean the point is
20 that he can have knowledge other than by speaking to them. His
22 MR. KEHOE: Excuse me, counsel, counsel, please. I mean if we
23 go --
24 JUDGE ORIE: You triggered this more or less, Mr. Kehoe --
25 MR. KEHOE: I understand, Your Honour.
1 JUDGE ORIE: -- by objecting. Please proceed. Let's just hear
2 the answer of the witness. The question was, Mr. Dijkstra -- I even have
3 to scroll back for the question.
4 The question was whether these individual ARSK soldiers that you
5 saw, whether they were, to your knowledge, whether they lived in the town
6 of Benkovac. And you started your answer by saying it's a difficult
7 question. It appeared to be. Please, tell us your answer.
8 THE WITNESS: Like I said, I haven't spoken to them, but the way
9 they behaved when I observed them, they either lived in town or close by.
10 They did their shopping there. They were sitting in bars, talking to --
11 not only to other guys in military uniform but also to civilians. I seen
12 them walking around with women and with kids so that's how I assumed that
13 at least a great deal of them lived in the town or in the vicinity.
14 JUDGE ORIE: Mr. Hedaraly.
15 MR. HEDARALY:
16 Q. I want to refer now to your time in Knin and in paragraph 10 of
17 your supplemental witness statement, you mention that ARSK soldiers in
18 Knin were rotating that they were on leave. Do you recall that in your
20 A. Yes, I do.
21 Q. Can you please tell the Court whether these ARSK soldiers that
22 you saw in Knin were individual soldiers or soldiers as -- there as part
23 of an organised units?
24 A. Most of the soldiers I saw, let me say almost all the soldiers I
25 saw were acting as individuals.
1 Q. Thank you. Can we have P430 on the screen, please, and that was
2 the attachment to the witness statement that was just admitted a few
3 moments ago.
4 Major Dijkstra, I'm going to show you the aerial photo of Knin
5 that you have identified when you -- that you have marked when you made
6 your witness statement and I just have one very specific question on it
7 just to clarify something.
8 In your statement, you identified locations labelled on the map
9 as 3 and 4 as the government building and radio station?
10 A. Yeah.
11 Q. And you circle a portion of the town. I just want to clarify:
12 Is this the whole -- I mean is this entire area the government building
13 and the radio station or are those two buildings within that area?
14 A. Those two buildings should be within that area, but it's
15 difficult for this aerial photograph to identify them. I never saw them
16 from above, I always saw them from, say, the town side. So looking up
17 the hill.
18 Q. Thank you. I now want to refer to paragraph 17 of your witness
19 statement where you state that you clearly recalled hearing multiple
20 racket launchers at 5 a.m.
21 up. My question is and could you tell the Chamber, how could you
22 distinguish between the sounds of rockets from a multiple rocket launcher
23 as opposed to a sound from a regular shell?
24 A. The thing I heard that woke me up made a sound as I will describe
25 it to people mostly like a train blowing its whistle inside a tunnel so
1 it's almost a deafening sound. I admit I'm not an artillery guy so it is
2 not my best field of experience but I've been on fire -- at fire ranges
3 before and heart bullets, grenades, passing and they make a totally
4 different sound, they make a sound like a whiz so my first assumption was
5 this was something bigger. Knowing a bit about the arsenal that warring
6 parties have, my first assumption was that it was a rocket from an MRLS
7 and this was later confirmed by my roommate who had spent before he came
8 to Knin half a year in Sarajevo
9 Q. Thank you, Major Dijkstra. In -- I will now move to paragraph 33
10 of your supplemental witness statement and you talk about the very little
11 structural damage to the town of Knin
12 fact observe, was it concentrated around the military targets that you
13 identified in your statement?
14 A. No, they were not -- they were, as far as I could see from what I
15 have observed, all over town and not just concentrated around those
17 Q. Now, you -- I mean you heard at the beginning of -- before --
18 when your statement was being admitted, some objections and discussion
19 about the opinions in your statement. You expressed an opinion that the
20 way the military operation was conducted and particularly the shelling --
21 MR. KEHOE: Excuse me, Your Honour --
22 MR. HEDARALY: Can I please finish, I'm going to ask him about
23 the basis of his opinion.
24 JUDGE ORIE: Mr. Kehoe, let's first, before you answer the
25 question, please make a pause.
1 Mr. Hedaraly, you may finish your question.
2 MR. HEDARALY: Your Honour, I would like, if I could finish my
3 question before an objection is made, I think that's usually the protocol
4 how it works.
5 JUDGE ORIE: Yes, unless of course the question starts in such a
6 way that I would say the harm is done before an objection can be made.
7 Please keep this in mind and please ask your -- this or the same question
8 not necessarily in the same words again. Please proceed.
9 MR. HEDARALY:
10 Q. As you have heard from the Presiding Judge, the opinions that you
11 provide in your statement are not necessarily of assistance to the Court
12 so I want to ask you about the underlying facts that you observed or that
13 you heard that help you form these opinions.
14 So my question is: What are the underlying facts that you
15 observed or heard that helped you form the opinion that the way in which
16 the military operation was conducted and particularly the shelling was to
17 get the people out?
18 Before you answer, there may be an objection?
19 JUDGE ORIE: Mr. Kehoe, yes.
20 MR. KEHOE: Your Honour, even the structure of that, I mean if
21 we're just asking what did you see and what did you hear? I mean --
22 JUDGE ORIE: Yes. Then he say I saw the sun rising in the
23 morning and of course you have to.
24 MR. KEHOE: I understand you have to direct.
25 JUDGE ORIE: Mr. Hedaraly focuses the witness on what he
1 expressed in some respects.
2 MR. KEHOE: Yes, sir --
3 JUDGE ORIE: -- as an opinion and to ask him what are the facts
4 that are at the basis of this opinion which might not necessarily assist
5 the Chamber and that is a fair question. I mean he doesn't lead the
6 witness into a conclusion because the conclusion is already there on
7 paper, so what we are trying to find out is what are the facts underlying
8 this opinion.
9 Mr. Dijkstra, when you answer this question, could you really
10 limit yourself to facts as you did before by saying I saw soldiers with
11 women and children, not necessarily that these were their own wives and
12 their own children but at least that's a fact that you observed which led
13 you to conclusions and it could have been other conclusions as well but
14 please try to focus on the facts on which you based these opinions.
15 MR. HEDARALY:
16 Q. Do you want me to repeat the question or is it clear to you?
17 A. I understand the question.
18 JUDGE ORIE: Yes.
19 A. One of the first facts was that the amount of shelling I heard,
20 the heaviness I heard when I was woken up and spent the first two hours
21 in my house then went through town to the barracks and from the barracks,
22 observed an heard the shelling going on for the remainder of 4th of
23 August and again on the 5th gave me a feeling that there was quite a lot
24 falling on the town. So from that aspect, I was expecting to find a lot
25 of damaged houses, destroyed houses.
1 After the 8th of August, I stayed in Knin for the rest of my time
2 and my living was close to what I marked on the map as the logistics
3 base, and the damage I observed during that time was not consistent as
4 far of what I would have expected to find. I hardly saw any completely
5 destroyed house or heavily damaged house. I found some potholes that
6 looked like from grenades. At one point I came to an apartment building
7 that had a hole all the way on top or on its roof that looked like from
8 some sort of projectile, but I didn't see any of what I expected
9 observing the heaviness of the shelling.
10 Another fact, although it's a hearsay fact, I have to admit, that
11 after the war and after my time with the UN, I still had contact with
12 some people from the Krajina and they told me that there has been an
13 evacuation order almost straight after beginning of the shelling and also
14 they were surprised that they could flee the country without much
15 resistant and opposition. So those two facts, to me, probably drew my
16 conclusion was this whole shelling was aimed to get the people out as
17 quickly as possible.
18 MR. HEDARALY:
19 Q. In paragraph 36 of your supplemental statement, you describe
20 looting that was done by people in military uniforms carrying
21 non-military goods in military vehicles. My question for you is: How
22 were you able to know that these were military vehicles?
23 A. The vehicles of the Croatian army have -- you can say a military
24 licence plate normally starting with two numbers then the letters HV,
25 hotel Victor and three numbers. And all these cars I described as
1 military vehicles for having those licence plates.
2 Q. And finally, Major Dijkstra, in paragraph 40 of your supplemental
3 witness statement, you discuss an incident that you personally observed.
4 You say that you saw an anti-aircraft gun mounted on a truck that was
5 firing horizontally at houses. Can you please describe for the Court
6 where this was and what you specifically observed?
7 A. Okay. I was on the road from Knin to Drnis with two colleague
8 UNMOs and we observed on the right side of that road, so that's to the
9 west, a military vehicle with a yellow licence plate. It was too far
10 away to see if it was an HV registration but the civilian licence plates
11 in Croatia
12 letters on yellow, wearing a Puma insignia on its side firing a
13 double-barrel anti-aircraft gun on houses that were even further to the
15 Q. And what kind of buildings, houses or structures were they firing
17 A. As far as I could tell, these were civilian houses.
18 Q. And could you observe the people that were on the truck? Could
19 you identify them?
20 A. I could only identify them as wearing -- military personnel
21 because they wore military clothing.
22 MR. HEDARALY: Just one moment, Your Honour.
23 [Prosecution counsel confer]
24 MR. HEDARALY: The Prosecution has no further questions, Your
1 JUDGE ORIE: Thank you, Mr. Hedaraly.
2 Mr. Kehoe, may I take it that you will be the first to
3 cross-examine the witness.
4 MR. KEHOE: Yes.
5 JUDGE ORIE: Could I receive any indication as far as timing is
6 concerned and I'm also addressing other Defence counsel.
7 MR. KEHOE: Sorry Judge I don't think it should be too long. If
8 this could be an appropriate time for the Major to take a break before we
9 go into that or do you ...
10 JUDGE ORIE: If we do not take a break now, Mr. Dijkstra, we most
11 likely would go on for let's say half an hour. If you would say that's
12 too much, then we'll have a break now.
13 THE WITNESS: I'm perfect. No problem.
14 JUDGE ORIE: Okay. Mr. Kehoe, then again my question which you
15 skillfully evaded.
16 MR. KEHOE: Yes, Judge, you brought me back to -- an hour or so.
17 JUDGE ORIE: Could I hear from other Defence counsel.
18 MR. CAYLEY: Yes, thank you, Your Honour, I suspect unless
19 anything arises in Mr. Kehoe's cross-examination, we won't have any
20 questions for the witness.
21 JUDGE ORIE: Yes. And then the -- Mr. Mikulicic.
22 MR. MIKULICIC: Yes, Your Honour, I could estimate my
23 cross-examination within an hour.
24 JUDGE ORIE: Mr. Dijkstra, you see that the chances of being
25 released from this place this morning are growing.
1 Mr. Kehoe, please proceed.
2 Mr. Kehoe is counsel for Mr. Gotovina and he will now
3 cross-examine you.
4 Cross-examination by Mr. Kehoe:
5 Q. Good morning, Major.
6 A. Good morning.
7 Q. Major, I would just like to go back and like to cover several
8 questions that were addressed by the Prosecution and several matters that
9 came up during the course of your witness statements, so if I bounce
10 around a little bit, that's where I'm going.
11 If you can just take a look again at D248.
12 Major, just a clarifying question that you brought up on direct
13 examination concerning the two items at the bottom of the page, the
14 communications centre as well as the command of the 3rd Infantry Brigade
15 of the ARSK. Is it your testimony that you didn't know those particular
16 items were there?
17 A. Yes.
18 Q. Now, going back -- we're going to turn our attention away from
19 Benkovac and back to Knin, and without going through it chapter and
20 verse, I know that you just came to Knin shortly before Operation Storm.
21 Just talking about some of the items in your statement and if I can
22 direct your attention to your 2008 statement 429 in paragraph 15.
23 JUDGE ORIE: Mr. Kehoe, perhaps before you continue, could you
24 help us out? Of course the scale is indicated but not just in numbers
25 which as soon as you enlarge it or reduce it in size then of course it's
1 not valid anymore and we have to -- could I take it that the squares we
2 find on this map which is the approximately three and a half to four in
3 the width of this map and approximately two and a half from top to
4 bottom, are these square kilometres?
5 MR. KEHOE: This was a map that came up during the
6 direct-examination or cross-examination of a protected witness with
7 Mr. Misetic, if we can just check at the break and we'll get back.
8 JUDGE ORIE: Yes, because if you look at the --
9 [Technical difficulty]
10 JUDGE ORIE: I do understand that we had a technical problem
11 which now has been resolved. Yes. Mr. Kehoe, therefore, please proceed.
12 MR. KEHOE: Yes, Your Honour.
13 JUDGE ORIE: No, I thought it would be square kilometres
14 comparing more or less the proportions of the different things we find
15 there such as streets, et cetera. Please proceed.
16 MR. KEHOE: Yes, Your Honour.
17 Q. We're just going back to your 2008 statement which is P429, and I
18 would like to direct your attention to 15, paragraph 15 and you noted
19 that with respect to the train line, I said in my previous statement that
20 it was not a legitimate military target because it was not in use. Did
21 you know, sir, whether those tracks were in fact usable?
22 A. No, I do not.
23 Q. Let me turn your attention to -- the Court has heard testimony
24 about an armoured train that the --
25 JUDGE ORIE: Mr. Kehoe, if you wouldn't mind. What we are in at
1 this moment is that this witness has given what clearly is judgement or
2 an opinion about whether the rail track is a military target, yes or no.
3 That is for the Chamber to decide finally and not for a witness.
4 He also explained until now that's the sole basis for his
5 judgement that he never, I think, until the end of October, he saw any of
6 these rail tracks used. I mean that's the -- from what I understand, the
7 sole basis for this judgement.
8 Whether he would change his opinion, if he would know about
9 armoured trains or tourist trains or anything else is not -- of course
10 the Chamber knows because it has heard evidence on that train, I think
11 even about the rail track being used by Mr. Tudjman briefly after Storm.
12 MR. KEHOE: There is also the evidence of the ARSK using it to
13 move items.
14 JUDGE ORIE: Yes. There is a lot of evidence but why educate the
15 witness or give him all kinds of information then ask him whether he
16 would have a different judgement which is still for the Chamber to be
17 made and not for the witness if he would have had other information which
18 apparently he did not have or perhaps he has had it, but he has not
19 considered it when drawing these conclusions.
20 MR. KEHOE: Then the item, Your Honour, with the consideration is
21 for instance on Stara Straza, where did he observe railway cars going to
22 the munitions depot at Stara Straza.
23 JUDGE ORIE: You can ask him whether he knows any factual things
24 and whether he has considered this but let's not try to give him all kind
25 of information and then see whether that would cause him to make a
1 different judgement on the matter.
2 MR. KEHOE: Yes, sir.
3 JUDGE ORIE: Yes.
4 [Defence counsel confer]
5 MR. KEHOE: Just before the Benkovac map is off the screen, we've
6 been advised that it is 1 kilometre by 1 kilometre.
7 JUDGE ORIE: Yes, thank you for that.
8 MR. KEHOE:
9 Q. Major, during the course of the time prior to Operation Storm,
10 did you observe the RSK moving munitions to the ammunitions depot in
11 Stara Straza?
12 A. To be honest, I don't even know what Stara Straza is, or where it
14 Q. Okay. Now -- is so you couldn't tell us about any movements of
15 logistics at all?
16 A. No.
17 Q. Okay. Now, you noted for us just a few things about the shelling
18 and I just wanted to ask a follow-up on a couple of questions about the
20 In paragraph 21 of your statement, and if we could go to P431.
21 Now, the locations that you were -- if we can just blow up where
22 those circles are. Now, those are the locations on the balconies that
23 you were looking into Knin on both the 4th and the 5th; is that right,
25 A. Yes, they are.
1 Q. And you noted that while you were on these balconies, you
2 couldn't see what was either targeted or hit; is that not correct? And
3 I'm pointing you to the -- your statement on the paragraph 21 of P429.
4 A. That's true.
5 Q. And likewise, you were in no position to know whether there was
6 outgoing RSK fire?
7 A. Also true.
8 Q. Now, obviously you talked just generally about the noise that was
9 involved and the direction. And if we could go back to P430. Then if we
10 could blow up the area that is in the right hand portion, Mr. Usher, the
11 area that's pointed number 6. The area that you have circled as number
12 6, Major, is the area where you believe that the weaponry landed; is that
14 A. Some of it.
15 Q. Now, let me turn your attention to a -- looking at the angles the
16 way you were, let me turn your attention to -- if I may, I just get the
17 number correct. 1D31-0003.
18 While this is coming up, Major, this is just a different aerial
19 with a bit of a different angle of fire.
20 A. Okay.
21 Q. Observation, excuse me. Now, Major, the bottom part of the chart
22 with the X is the UN base. Is that the approximate location of the
23 balconies where you were making your observations?
24 A. They should be on the right hand corner of that eclipse.
25 Q. The right-hand corner of the eclipse. And were these numbers of
1 the general direction of where you saw the this fire going into or to the
2 extent you could see it?
3 A. Sorry, I can't answer that positively.
4 Q. Okay.
5 MR. KEHOE: Your Honour, at this time we'll offer this exhibit
6 into evidence.
7 JUDGE ORIE: I'm just trying to -- Mr. Kehoe, were these numbers,
8 I see some numbers in some --
9 MR. KEHOE: These numbers are the same numbers we had on the
10 prior exhibit with Colonel Leslie.
11 JUDGE ORIE: Yes. No, no, but I'm just trying to understand were
12 these numbers of the general direction of where you saw this fire
13 going --
14 MR. KEHOE: Toward.
15 JUDGE ORIE: Yes. And then the witness said I can't answer that
16 positively. Could you explain why you can't answer that but could you
17 answer it negatively or ...
18 THE WITNESS: Also not us, because I have seen shells hit in
19 those areas but these things are going is so fast it's difficult to tell
20 from where they are coming and where they are going. You only see them
21 land. So then it's difficult to say are all the shells going to the same
22 direction. You just see some of them land in that area.
23 JUDGE ORIE: Yes. Now, was that exactly because the area you
24 marked on the --
25 THE WITNESS: The area I marked.
1 JUDGE ORIE: The previous map is from what I see is by far, as
2 far as distance is concerned, closer to the UN compound, it more or less
3 covers the area in between the UN compound and the markings we see at
4 this moment on this map in black.
5 Now, when we are talking about shells landing, I take it,
6 Mr. Kehoe, but just correct me when I am wrong, that one of the questions
7 that was on your mind is whether where the witness indicated the area
8 where the shells had landed, whether he could have been mistaken by
9 looking in the same direction that the shells actually would have landed
10 further away from the UN compound so not in the area you marked on that
11 map, but rather on the areas as marked on this map.
12 I take it that that's the issue you wanted to raise.
13 MR. KEHOE: Yes, that's the issue.
14 JUDGE ORIE: Well, it took me to while to understand from your
15 question that this was the issue.
16 Have you now understood what the issue is, and could you tell us
17 when you marked the area where you say the shells fell, which is an area
18 which apparently at least has the look of an agricultural area rather
19 than a built-up area. Is there any way that you may have -- that you are
20 mistaken in the sense that the shells although you saw them landing in
21 the same direction from where you were that it was rather in the town in
22 the areas, the black areas numbered on this map rather than in the area
23 you marked on the map earlier? That's the question, whether --
24 MR. KEHOE: Excuse me, the transcript says fells -- I believe you
25 said fells and I think you meant shells.
1 JUDGE ORIE: Shells, I take it yes.
2 I think I said that the shells fell but -- I think I said the
3 shells but -- my question, although rather long, could you please --
4 THE WITNESS: First of all, it is not really agricultural, it's
5 more a swampy kind of area just next to the Krka River
6 I could hear the shells that close, I could also incidentally see them
7 actually -- well sort of explode in that swampy land, so that's what gave
8 me the conclusion since that is absolutely no target area, it is getting
9 quite a bit of hits. And so it's difficult to say if they were short
10 falls or whether it was deliberately target on there, short falls meaning
11 shells not reaching where they actually had to go -- oh, sorry.
12 JUDGE ORIE: Yes. Now, could you give us any impression as to
13 the number of I mean was that one or five or two where you had sound
14 reasons for yourself to believe that they fell in this swampy area rather
15 than further away on any of the -- in any of the areas indicated on this
17 THE WITNESS: Well, looking at me as a person, I would say at
18 least one every 15, 20 minutes to make such a statement.
19 JUDGE ORIE: Yes. You mean landing --
20 THE WITNESS: Landing in that field and then saying from they get
21 quite a few hits.
22 JUDGE ORIE: Yes. Please proceed, Mr. Kehoe.
23 MR. KEHOE: Your Honour, I just offered this item into evidence.
24 MR. HEDARALY: No objections.
25 JUDGE ORIE: No objections. Mr. Registrar.
1 THE REGISTRAR: As Exhibit D392, Your Honours.
2 JUDGE ORIE: D392 is admitted into evidence. Please proceed.
3 MR. KEHOE:
4 Q. Just, Major, turning your attention to an item you mentioned just
5 what you heard and the noise I think on direct testimony you talked about
6 the noise from what you believed to be MRLs. Let me show you a
7 perspective, I'd like to show you two aerial perspectives, if I may,
9 Now, this is an aerial photograph, Major, of looking into the UN
10 camp. We've noted the TVIK factory, the railway, and the railway
11 maintenance just to give some perspective.
12 If you look at this, Major, the camp was backed up into -- and
13 had several hilly or mountainous areas behind it, did you not just see
14 that from the photo -- from the sketch. Do you recall that?
15 A. Yes, I do.
16 Q. This comes from south to south-west and ... this is looking from
17 the other direction with those -- a few different items. We have the UN
18 camp down, TVIK factory, the railway, the hospital, and the railway
20 Now, Major, when the shelling came in, and to the extent that you
21 would hear it in the UN camp, the fact that these mountains, it was down
22 in this area at the base of these mountains or hills, that would cause an
23 echo effect and the noise to be louder, wouldn't it?
24 A. I'm not an expert, sorry.
25 JUDGE ORIE: Mr. Hedaraly.
1 MR. HEDARALY: The question started a long time ago about when he
2 believed he heard MRLs and I believe the witness's testimony that when he
3 is sure he heard it was 5.00 a.m.
4 not in the UN camp but when he was at home, so I think there is a
5 confusion built in that question for the witness.
6 JUDGE ORIE: Yes. That's one issue. And of course the witness
7 started to already answer the question that he's not an expert in these
9 It is a thought that came on to my mind as well whether you need
10 expert knowledge but if there is anything that would be knowledge of
11 every person and also keeping in mind what Mr. Hedaraly said, you may
13 MR. KEHOE: I'm sorry, Your Honour, the knowledge of every person
14 concerning ...
15 JUDGE ORIE: Well, I mean, the common knowledge of everyone would
16 be that if you start, I think, singing in the mountains that there is
17 some echo, that's clear. The same would be clear if you have ever heard
18 people during hunting in the mountains, but then of course the next
19 question to come is what would have been the impact on observations and
20 that is a far more complex matter.
21 MR. KEHOE: Yes, Your Honour.
22 JUDGE ORIE: Please keep that in mind and also keep in mind that
23 Mr. Hedaraly said that you were confusing the position from where he was.
24 MR. KEHOE: And I was attempting to focus the witness just at the
25 time you were in the camp.
1 Q. I take it, Major, your answer would be the same about the impact
2 of this when you were in the UN camp?
3 JUDGE ORIE: Let's first try to then establish: When you were in
4 the camp, did you hear similar sounds as you described earlier? I think
5 you were talking about a train in a tunnel and that this was confirmed by
6 your roommate.
7 Now, did you hear is similar sounds when you were in the
9 THE WITNESS: Yes, I did, especially on the morning of the 5th at
10 the start again.
11 JUDGE ORIE: Yes. Please proceed, Mr. Kehoe.
12 MR. KEHOE: Your Honour, at this time we'll offer 1D13-0001 into
14 MR. HEDARALY: Based on what has transpired, I don't see what the
15 foundation is for this. If it's just to show that the area is hilly I
16 don't think the Prosecution has any objection to that.
17 JUDGE ORIE: Sometimes, Mr. Hedaraly, objections on what is
18 obvious take more time than just admitted into evidence because it
19 doesn't harm in any way the Prosecution's case that it is a hilly area.
20 MR. HEDARALY: It doesn't, Your Honour, but I just don't want the
21 record to be cluttered with documents that have -- that doesn't assist
22 the Chamber, but I will withdraw the objection.
23 JUDGE ORIE: I think we should take care that this will not
24 happen. At the same time, we hear that you have no objections.
25 Mr. Registrar.
1 THE REGISTRAR: As Exhibit D393, Your Honours.
2 JUDGE ORIE: D393 is admitted into evidence. Please proceed,
3 Mr. Kehoe.
4 MR. KEHOE: Thank you, Your Honour.
5 Q. Major, I just move to the rate of shelling that you were talking
6 about and if I could just take a look at P101. Just the top of that
7 page, Mr. Registrar. This is an UNMO report, Major, and it is on the 4th
8 of August, at 12.05 and it notes the rate of shelling as of 10.40. And
9 it notes that the HV shelling on Knin started at the 4th of August at
10 0500 and continued to 10.20 and up to 10.20, the rate of fire was 350 to
11 400 artillery MRL rocket fire were heard. Is that approximately your
12 recollection, those numbers?
13 A. I have to say I haven't counted them.
14 Q. Okay, sir. Let me move to paragraph 28 of your 2008 statement.
15 And if you can, sir, and this has to do with the -- your observations of
16 the Croatian soldiers coming in on the 5th and you noted:
17 "As I stated, I could see the Croatian troops coming into town
18 from the south at about noon
19 Drnis ..." is excuse me -- "around noon on the 5th, that's the 5th of
20 August on the same road from Drnis. I couldn't see other directions from
21 the balcony so I don't know if other troops entered the town from other
23 Now, based on that, sir, you had come to a conclusion that these
24 soldiers were coming into an unarmed town; do you recall that?
25 A. That's not what I concluded.
1 Q. You didn't conclude that?
2 A. Not on those basis.
3 Q. Did you know that -- let's go to D334. Now, if this is a
4 statement of the ECMM of 12.45. And it notes in the third item that at
5 11.15 hours -- these items were met at the entrance and this is the
6 entrance to the hospital by the HV. Do you see that at 11.15? It's in
7 number 3. Maybe we could just blow that up a little bit, number 3.
8 A. Yes, I see that.
9 Q. Now, let us turn to 428 page 3, this is your statement of 1995.
10 Page 3 of the bottom paragraph.
11 The bottom paragraph, if we can blow that up a little bit. We
12 start at the middle of that -- do you see that, Major, the Croats entered
13 the town ..."
14 A. Yeah.
15 Q. The "The Croats entered the town around -- on the 5th of August
16 at 1200 from the south and they obviously knew people had left the town.
17 I can say that because they entered the town in a convoy, 7 tanks, 2 APCs
18 which one does not do if one expects combat."
19 Now, this was at noontime. The Croats were already in the town
20 by 11.15, according to this ECMM report, weren't they?
21 A. That's what that report said. I only saw them enter at 12.00.
22 Q. Okay. Now, when you made this statement about them entering the
23 town at 12.00, did you know that they had entered the town earlier at
25 A. I did not.
1 MR. KEHOE: Excuse me, Your Honour.
2 [Defence counsel confer]
3 MR. KEHOE: I have several brief areas left, Judge. I have a
4 little bit, I don't know if you wanted the break at 10.15 or if you
5 wanted me to continue on.
6 JUDGE ORIE: Let's ask Mr. Dijkstra as well.
7 THE WITNESS: I'm okay.
8 JUDGE ORIE: Please tell us if that's any different. Let's then
9 return to the original scheduling.
10 MR. KEHOE: Yes, Your Honour.
11 JUDGE ORIE: Yes.
12 MR. KEHOE:
13 Q. I shift to get another subject, Major, and I'd like to just talk
14 to you about the testimony that you gave about ransacking that is also in
15 paragraph 31 of P429. Now, based on your experience, sir, in the area,
16 do you know whether or not the RSK soldiers in Knin were living in their
17 homes and keeping weapons in their homes? Do you know that?
18 A. I know they were living there. I'm -- I don't know if they were
19 keeping weapons in their house. I haven't seen any of them.
20 MR. KEHOE: If we can just go into closed session for a moment,
21 Judge. Private session, I'm sorry.
22 JUDGE ORIE: We turn into private session.
23 [Private session]
11 Pages 4781-4782 redacted. Private session.
17 [Open session]
18 THE REGISTRAR: Your Honours, we are back in open session.
19 JUDGE ORIE: Thank you, Mr. Registrar.
20 MR. KEHOE:
21 Q. I can re-ask that question in open session, Judge, there was no
22 need for that question to be in private is session.
23 JUDGE ORIE: Please then repeat the question.
24 MR. KEHOE: Bear with me, Major.
25 Q. I asked you that with regard to paragraph 30 and we were talking
1 about you having 11 vehicles that were insufficient to do the job for
2 UNMOs and you said that you got more vehicles; is that right?
3 A. That's correct.
4 Q. And how many did you get?
5 A. I can look it up for you if it's really important but it should
6 be somewhere between 10 and 15 at the end.
7 Q. So 10 or 15 more or just 10 and 15?
8 A. No, between 10 to 15 more.
9 Q. Okay. Let me turn your attention to paragraph 29 of your
10 statement. In this, that you note that the second sentence, "I heard
11 later from friends that there had been something on the radio telling
12 them to leave."
13 Now -- do you see that, sir?
14 A. Yes.
15 Q. Now was this a broadcast coming from the RSK forces on the radio
16 telling people that they should leave the area?
17 A. I cannot say if it was the RSK or the Serbian government making
18 the broadcast. The only thing I heard is that there was a broadcast on
19 the radio to evacuate.
20 Q. And without giving us any names, who did you hear this from?
21 A. People I met during the time it was still Krajina and made
22 contact with later.
23 Q. And they told you this thereafter?
24 A. No. How you mean the day after.
25 Q. I mean did they tell you this at the time or?
1 A. They told me this after 1995.
2 Q. Now, one last item, sir. You mentioned --
3 JUDGE ORIE: Mr. Kehoe, may I seek one point of clarification.
4 You told us that you do not know whether it was an ARSK broadcast or a
5 Serbian government broadcast. You are, however, able apparently to tell
6 us that it was a is Serbian broadcast.
7 THE WITNESS: No, my friends told me that it was a Serbian
8 broadcast, at least it was on those channels, as far as I understood.
9 JUDGE ORIE: So your friends told you it was Serbian but you do
10 not have further details about what kind of Serbian broadcast it was.
11 THE WITNESS: Even if I would have heard it, I wouldn't have
12 understood it anyway.
13 JUDGE ORIE: Yes, please proceed.
14 MR. KEHOE:
15 Q. We're going to change subjects yet again, Major, and I'd just
16 like to talk to you about this incident of the anti-aircraft gun that you
17 observed on the road between Knin and Drnis. Without going through it,
18 and I look through the UNMO is situation reports for the 10th of August
19 and a report of individuals shooting anti-aircraft guns is not in any of
20 the situation reports neither the updates or the sitreps.
21 Just for the record, Your Honour, I'm talking about P113, P114,
22 and P115.
23 Major, did -- when you observed this, did you report it to -- or
24 do you know if it was reported to any Croatian authorities that the --
25 these individuals dressed in uniforms committed this act?
1 A. No, I don't.
2 MR. KEHOE: If I can just have one moment, Major.
3 [Defence counsel confer]
4 MR. KEHOE: Major, thank you very much.
5 Your Honour, I have no further questions.
6 JUDGE ORIE: Thank you, Mr. Kehoe.
7 We'll first take a break. We'll resume at five minutes to 11.00.
8 --- Recess taken at 10.28 a.m.
9 --- On resuming at 11.01 a.m.
10 JUDGE ORIE: The Chamber apologises for the late start but the
11 breaks are just too short for our meetings. That's our problem.
12 Mr. Mikulicic -- Mr. Hedaraly.
13 MR. HEDARALY: I apologise, if we can just -- I talked to
14 Mr. Kehoe at the break regarding 65 ter 5199 and my understanding is that
15 there is no objection so if we could have that admitted at this stage,
17 MR. KEHOE: That's correct. Mr. Hedaraly and I spoke, yes.
18 JUDGE ORIE: Yes. It has not been assigned a number yet.
19 Mr. Registrar -- Madam Registrar.
20 THE REGISTRAR: Thank you, Your Honours. 65 ter number 05199
21 will become Exhibit P434.
22 JUDGE ORIE: P434 is admitted into evidence.
23 Please proceed. Mr. Mikulicic -- Mr. Dijkstra, Mr. Mikulicic is
24 counsel for Mr. Markac, and he'll now start his cross-examination.
25 Please proceed.
1 MR. MIKULICIC: Thank you, Your Honour.
2 Cross-examination by Mr. Mikulicic:
3 Q. [Interpretation] Good afternoon, Mr. Dijkstra. I am the Defence
4 counsel for Mr. Markac, and I will have a few questions for you. I hope
5 they won't be too much.
6 Mr. Dijkstra, you said in your statement that before your arrival
7 in the area of the former Yugoslavia
8 intensive course for your role as UN observer. Could you please briefly
9 describe the substance and the content of that course, that training that
10 you underwent?
11 A. I can. Apart from redoing basic military things like nuclear or
12 biological warfare stuff, we also got lessons in recognition in all
13 weaponry that should have -- could be in that area. We got lessons in -
14 how do you say - the rules or laws for combat, humanitarian rules or
15 laws, you got quite a lot of lessons into the cultural, historical
16 background of the former Yugoslavia
17 Q. After your arrival on the territory of the former republic of
18 Serbian Krajina, did you assess that the training that you underwent was
19 sufficient for the situation that you found yourself in?
20 A. I don't understand the question completely. What do you
21 specifically want to know?
22 Q. In some situations while you were in Benkovac when you arrived,
23 did you run into situations that were not covered by the training that
24 you had gone through? That was actually the gist of my question.
25 A. There was one situation where the training will never ever could
1 prepared me for and that was that it was very common that if you were in
2 a meeting, you must drink alcohol and I'm a non-drinker. So that was
3 probably the only situation where I felt pretty uncomfortable but for the
4 rest of the training it was sufficient enough.
5 Q. Mr. Dijkstra, was there talk during the course what your attitude
6 toward the local population should be?
7 A. Not as much in the Dutch training, but we got some additional
8 training when we arrived in Zagreb
9 treat and fair -- respect their background, their personality, and -- but
10 not to - how to say - socialise too closely, if I may put it like that.
11 Q. Following Operation Storm, the mission of the UN observers
12 changed. We heard this from several witnesses in this courtroom. Could
13 you tell us, please, whether you were issued some specific instructions
14 relating to the change to your original mandate or mission?
15 A. I can answer yes and no. To my specific task, I did not get that
16 much change because I was the logistics officer. My task was
17 specifically to provide the logistics for the other UNMOs to do their
19 Q. Mr. Dijkstra, in your 2007/2008 statement, paragraph 6, you
20 describe some units of the army of the Republic of Serbian Krajina
21 others, you mentioned that there was a training camp in Donji Bruska
22 village that was headed by Captain Dragan and according to your
23 information, this was the Red Berets camp. This was some sort of special
24 unit of the Republic of the Serbian Krajina. Could you tell us more
25 about this unit and Captain Dragan who headed this camp as said in your
2 A. No, I can't. I visited that camp only once and at that time,
3 Captain Dragan was there only once so I have not spoken to him. The
4 information here in this statement is what I have been informed by my
5 colleagues who were longer in that area.
6 Q. Are you aware what the purpose of that unit was within the
7 structure of the army of the republic of Serbian Krajina?
8 A. No, I'm not.
9 Q. During your stay in Benkovac, you had occasion to see police
10 stations and police officers; am I correct? I mean the civilian police.
11 A. I know which police you mean. If it helps, I can phrase my
12 answer like this: I never interacted as an UNMO with the civilian police
13 not because they stopped me on the roadside but also not because I had to
14 do business with them. So if I saw them, it was just because I passed
15 them or because I passed the police station. The only police officer we
16 ever interacted with was the man that was watched over our vehicles when
17 we parked them in the parking lot.
18 Q. When you moved from Benkovac to Knin, which was toward the end of
19 July or more specifically on the 26th of July, 1995, according to your
20 statements you were in charge of logistics and you did not patrol the
21 area anymore. You did mention, however, that as needed, you visited at
22 least twice or three times a week certain localities such as Donji Lapac,
23 Gospic, Korenica, Gracac and so on and so forth. My question is this, on
24 these occasions when you travelled on the road from Gracac to Gospic, did
25 you notice a large group of the 9th Gracac Brigade in the village of
1 Gracac and their command post, did you know this and did you observe it?
2 A. To be just clear for me are we talking Croatian troops or RSK
4 Q. We are talking about the RSK troops, military units.
5 A. Okay. As a logistics officer, my travels started after Oluja. I
6 was only there for about, what was it, ten days, so most of my time I
7 spent with picking up the business.
8 Q. Have I understood your answer correctly. When you arrived in
9 Knin on the 26th of July up until the beginning of Operation Storm, at
10 the beginning of August, you did not travel this route?
11 A. Not that I can recollect.
12 Q. I would like to refer you back to your 2007/2008 statement,
13 paragraphs 37, 38 where you mention that late in August and early in
14 September, Croatian civilians began arriving and that they looted houses
15 and that these were in fact people who were returning to their own homes.
16 Do you have any more specific information or more detailed information
17 about this phenomenon?
18 A. What do you specifically want to know?
19 Q. How did you learn about this?
20 A. As I told your colleague, by that time I had figured out and have
21 been told how the Croatian licence plating system worked, so I could tell
22 if cars were coming from Zadar, Sibenik, Split or other towns. So in the
23 beginning, you would mostly see Zadar, Sibenik, Split licence plates but
24 as time grew, the plates were coming from further and further, one time I
25 even saw plates from Kula, Dubrovnik
1 Q. In paragraph 38, you mentioned that there was a lot of
2 destruction to houses close to the border region between Croatia and
4 to hear such information from various witnesses in this courtroom, that
5 across the border from Bosnia
6 vehicles bearing registration plates of Bosnia and Herzegovina
7 the border, came into Croatia
8 you know of this?
9 A. No, I don't.
10 Q. Thank you. Let you now move to another topic. My learned
11 colleague Mr. Kehoe asked you about shelling, and this is really what I
12 wanted to ask you about as well for the most part; however, you said that
13 you were not trained to answer those questions. As a person who was not
14 trained in explosives and shelling, are you able to distinguish, based on
15 the sound that you heard, whether there was a firing of a shell, an
16 explosion of a shell, and between the echo of a shell or an impact of a
17 shell? Were you able to distinguish those different sounds?
18 A. I cannot be 100 per cent positive to say that I would distinguish
19 it every single time. I probably could distinguish the firing and the
20 shelling if I was close enough to both, but an echo would be difficult, I
21 guess. It depends on what kind of echo it is.
22 Q. Does that mean that if you were not too close to the explosion,
23 that you could not tell between an explosion and a detonation of a
24 grenade -- the firing and a detonation of a grenade -- shell?
25 A. I think I would be able to make the difference between the firing
1 and the detonation, but the firing -- of the firing and -- the detonation
2 of the echo would probably be more difficult.
3 Q. Mr. Dijkstra, you said at the beginning that in relation to the
4 mission, that the training that you underwent provided information and
5 instructions on how to treat the local population. You also were
6 billeted with a private -- or you had your quarters at a private home, a
7 member of the local population; correct?
8 A. That's true.
9 Q. We can see from your diary, which was attached to the statement,
10 Exhibit P432, that you had a lot of contacts with the local civilians.
11 You had dinners with them, conversations, and so on; is that correct?
12 A. Depends on what you call a lot. For me a lot would be every day
13 and it wasn't every day and especially not with locals.
14 Q. Well tell us then, how often was this, then?
15 A. First of all, can you clarify what you call "locals" for me
16 locals would be the civilian population; is that correct?
17 Q. [In English] Yes.
18 A. Locals will not be civilians working for the UN. True?
19 Q. [Interpretation] It is true that some UN workers, I mean the
20 interpreters and other staff were recruited from the local civilian
21 population, that's correct, isn't it?
22 A. If we are including those in your -- the people you call "locals"
23 then it's true I had a lot because you saw your interpreters daily and --
24 in a time and situation provided, you can have dinners with them or you
25 can have a coffee with them. No -- UN personnel, I would not say I had a
1 lot, probably occasionally.
2 Q. Looking at your diary, Exhibit P432, I will just mention the
3 names of some individuals that you mention in your diary and then I will
4 ask the question.
5 So you named the following individuals: --
6 JUDGE ORIE: Could you link that to dates because the diary is --
7 MR. MIKULICIC: Okay.
8 MR. HEDARALY: Your Honour, if we could have the witness provided
9 with his original, the Dutch copy of his diary, that may be of assistance
10 to him.
11 JUDGE ORIE: Would that be --
12 MR. MIKULICIC: I believe that would be of assistance.
13 MR. HEDARALY: I believe it's in the binder that has been
14 provided to Mr. Usher.
15 JUDGE ORIE: If you would refer to dates as well as to the names.
16 MR. MIKULICIC: In the beginning, I refer to the date of 11th of
17 August, Friday.
18 THE WITNESS: Yeah.
19 MR. MIKULICIC: [Interpretation]
20 Q. As you can see, Mr. Dijkstra, in the second paragraph in the
21 English version that I have before me, there are names that are mentioned
22 there are Olja and Sandra. Could you tell us, please, who are these
24 A. They should be interpreters.
25 Q. Two paragraphs lower, you mention the names Frank and Iva?
1 A. Frank as a Belgian colleague. Iva as far as I remember, a Czech
2 female colleague.
3 Q. In the penultimate paragraph on the same page, and this is an
4 entry for Saturday, 12th August, you mention the name Jurgen and Vesna?
5 A. Sorry, my headphone went.
6 JUDGE ORIE: It's not easy with one hand, is it?
7 THE WITNESS: Yeah.
8 MR. MIKULICIC: [Interpretation]
9 Q. So in one before last paragraph, on the same page, Saturday, the
10 12th of August, the names Jurgen and Vesna are mentioned and it is said
11 there that they intend to get married. Obviously, Jurgen is a person who
12 is not local but Vesna, I assume is. Can you confirm that?
13 A. Vesna is a Croatian is citizen and Jurgen is a friend and
14 colleague of mine from old times.
15 Q. The 14th of August, the next page, Monday mention is made of a
17 A. Duska was one of the few remaining is Serb interpreters that
18 stayed with us after Oluja.
19 Q. Tuesday, the 15th of August, at the very end, the names Tudjica
20 are mentioned, I think there is an error there, it's probably Djurdjica
21 and Ljiljana, do you remember these people? You can is see this prior to
22 the entry on the 16th.
23 A. If you want to know if I can remember the faces, no, I can't. I
24 can remember that I had been talking to several people, and if I put the
25 names with those dates, it should have been those people.
1 Q. Okay. In your diary, the entry for Sunday, the 20th of August,
2 you mention again Duska and Iva, you've explained that but you also
3 mentioned here that Alun Roberts for whom we know is the spokesman, the
4 UN spokesman; and Iva prevented, forestalled an event. Can you tell us
5 what kind of relationship they had?
6 A. How do you mean that question.
7 Q. What I would like to know is if you put Iva and Alun Roberts in
8 the same sentence, what kind of event was this. Can you recall the
10 MR. HEDARALY: Your Honour, I just -- I'm trying to wonder what
11 the relevance of this line of question is and of this particular
12 question. If we can just get some ...
13 JUDGE ORIE: I must admit, Mr. Mikulicic, that a similar thought
14 came into my mind but then at the last question, I thought that's more
15 about a specific event so to find out exactly with whom this witness had
16 coffee, unless there's any specific reason to suspect that interpreters
17 were spies or were having undue influence on decision-making, but of
18 course just to go through the list of names of the ladies and then to
19 find out whether they are Croatian or Serbian as such but of course I did
20 let you go because I didn't know where it would end.
21 MR. MIKULICIC: Yes, I --
22 JUDGE ORIE: I just hope that here we have a specific event so
23 please put that question but I would not encourage you to go through two
24 months of coffee drinking and then to find out that 60 per cent was
25 female, 40 per cent was male, et cetera.
1 Please proceed.
2 MR. MIKULICIC: [Interpretation]
3 Q. I would like to draw your attention to the entry in your diary,
4 the 21st of August, Monday, where you mentioned that you were writing a
5 letter to a "Miss Anonymous," this was in parentheses ...
6 JUDGE ORIE: We have not yet dealt with the previous event,
7 Mr. Roberts.
8 MR. MIKULICIC: I thought we did.
9 JUDGE ORIE: I think you put a question --
10 MR. MIKULICIC: I'm sorry.
11 JUDGE ORIE: -- what I would like to know --
12 MR. MIKULICIC: What kind of incident was that.
13 JUDGE ORIE: Yes, then I think Mr. Hedaraly intervened and I just
14 said that that was a specific event.
15 MR. MIKULICIC: My mistake, Your Honour.
16 JUDGE ORIE: Yes, please proceed, that's 20th of August.
17 MR. MIKULICIC:
18 Q. Let's get back to the incident where Alun Roberts and Iva prevent
19 arresting at a checkpoints.
20 A. Yeah.
21 Q. Do you remember specifically that incident?
22 A. I remember being told about that specific incident. I was not
24 Q. Okay. Fair enough. [Interpretation] So let's go back to the
25 entry for the 21st of August, Monday, where you are writing a letter to
1 an attractive interpreter who you called "Miss anonymous." Later on, it
2 turns out that you've managed to learn her name, I think, and that her
3 name was Ljiljana; is that correct?
4 A. Where did you find that information?
5 Q. I'm just trying to check?
6 MR. HEDARALY: 25th of August, the fifth line in the English.
7 THE WITNESS: Okay. Yeah, that's true.
8 MR. MIKULICIC: [Interpretation]
9 Q. Mr. Marti -- Mr. Dijkstra, I apologise, my question is this:
10 Judging by the entries in your diary, it is obvious that you had a lot of
11 contact with the staff and with the locals where you lived. Did these
12 contacts have any influence on your discharge of your mission as a UN
14 A. Can you rephrase the question because I'm not actually sure what
15 you are actually asking. It sounds like something I would not like.
16 Q. Mr. Dijkstra, you have to understand that I ask these questions
17 as a Defence counsel for my client and those questions may not
18 necessarily be attractive to the person they are addressed to. But my
19 question is: Did the relations with these female persons have any
20 influence, any impact on your carrying out your mandate as a UN observer?
21 That was my question.
22 A. Okay. Then I misunderstood your question, sorry. No, they did
24 MR. MIKULICIC: [Interpretation] Thank you. I have no further
1 JUDGE ORIE: Mr. Cayley, I think it was you who informed us
2 about --
3 MR. CAYLEY: Nothing arises. Thank you, Your Honour.
4 JUDGE ORIE: Nothing arises.
5 Mr. Hedaraly.
6 MR. HEDARALY: No further questions, Your Honours.
7 [Trial Chamber confers]
8 JUDGE ORIE: Mr. Dijkstra, I would have only a very few
10 Questioned by the Court:
11 JUDGE ORIE: In your testimony you told us that in Benkovac, the
12 soldiers you saw were individual soldiers rather than soldiers in units.
13 Would the same be true for the soldiers you may have seen in or around
14 the military barracks in Benkovac?
15 A. Let me answer like this: As far as I can remember, I never saw
16 soldiers organised as, say, a platoon or a group walking around. They
17 may have been in vehicles, in convoys, but I can't recollect actually
18 seeing them move as a group even as that.
19 JUDGE ORIE: Yes. And if you are talking about convoys and then
20 specifically about --
21 A. More than two. A convoy for me is more than two trucks.
22 JUDGE ORIE: Did you see large convoys in Benkovac.
23 A. No, not large convoys.
24 JUDGE ORIE: What was the biggest one you ever saw there.
25 A. Three, four trucks maximum, I think.
1 JUDGE ORIE: Yes. Then one other question. You said that your
2 training was imperfect in preparing for you the use of alcohol in
3 meetings. Now, was that in meetings only with outsiders or was there --
4 was alcohol used in meetings in which only UN-related persons did
6 A. Apart from, say, the meetings outside job times, okay, officially
7 we work 24/7 in job, but say after business was closed, colleagues would
8 have a beer or two. As long as it was official business, there were no
9 drinks on the table within the UN.
10 JUDGE ORIE: Yes. And when you are talking about the meetings
11 outside job times, this was really a matter of social --
12 A. Is socialising, yeah.
13 JUDGE ORIE: And not any structured conversation on any business
15 A. No.
16 JUDGE ORIE: Thank you for those answers.
17 A. You're welcome.
18 JUDGE ORIE: Have my questions raised any further need to --
19 MR. KEHOE: Just one issue.
20 JUDGE ORIE: Yes.
21 Further cross-examination by Mr. Kehoe:
22 Q. I realise weren't in Benkovac on the 4th of August, Major, but
23 are you aware that on the 4th of August, the HV couldn't get into
25 A. No, I'm not.
1 Q. So you don't know anything about the fighting around Benkovac on
2 the 4th?
3 A. Absolutely not, only little from hearsay.
4 Q. Did you hear that they couldn't get in there?
5 A. No the hearsay I have was from the UN and only that the Canadians
6 were very well prepared to join in if necessary, but I don't think that's
8 MR. KEHOE: Thank you very much.
9 JUDGE ORIE: Thank you, Mr. Kehoe. This, then, concludes your
10 testimony in this court, Mr. Dijkstra. I'd like to thank you very much
11 for having answered all the questions. I usually add to that that I
12 thank the witness also for having come a long way to The Hague. I will
13 not thank you for that. Nevertheless, I do wish you a safe trip home
15 THE WITNESS: Thank you very much.
16 JUDGE ORIE: Mr. Usher.
17 [The witness withdrew]
18 JUDGE ORIE: Before we continue, the Chamber would like to
19 deliver the reasons for a decision which was delivered already at an
20 earlier stage. And these are the Chamber's reasons for granting
21 trial-related protective measures for Witness 6.
22 On the 20th of March, 2008, the Prosecution applied for the
23 trial-related protective measures of pseudonym and face distortion for
24 Witness 6. On the 2nd of April, 2008, the Prosecution filed a
25 corrigendum to the application.
1 The Markac Defence responded on the 1st of April this year and
2 the Gotovina and Cermak Defence on the 3rd of April, 2008. All three
3 requested that the Chamber deny the motion.
4 On the 7th of April, 2008, the Chamber heard the witness on the
5 matter of protective measures. At transcript pages 875 and 876, the
6 Prosecution added a request for voice distortion, which prompted no
7 change in the Defence's position. At transcript page 876, the Chamber
8 granted the Prosecution's application for pseudonym, face and voice
9 distortion, with reasons to follow.
10 As the Chamber held in its reasons for its first protective
11 measures decision in this case, which can be found at transcript page
12 2610 and 2611, the mere expression of fear by a person is not sufficient
13 for protective measures to be granted.
14 The party seeking protective measures for a witness must
15 demonstrate an objectively grounded risk to the security or welfare of
16 the witness or the witness's family should it become known that the
17 witness has given evidence before the Tribunal.
18 Witness 6, a Croatian Serb, has relatives who live and own
19 property in Croatia
20 this case, the Chamber found that the expected testimony of Witness 6
21 could antagonize persons both in the areas where the witness's relatives
22 live, as well as elsewhere in Croatia
23 Added to this, the witness is a relatively well-known figure and
24 so easily identifiable. In the past, the witness had made public
25 comments about various political matters and about the accused. While
1 the Chamber was mindful of the Defence's argument that this could
2 indicate that the witness did not in fact hold any fear for the security
3 of his family, it noted that there is a difference between expressing an
4 opinion in a public debate, and giving testimony in the context of a
5 criminal trial.
6 For the aforementioned reason, the Chamber finds that the
7 Prosecution has demonstrated an objectively grounded risk to the security
8 and welfare of Witness 6 should it become known that he has given
9 evidence before this Tribunal. That is sufficient to warrant the
10 granting of the requested protective measures which are of a nature to
11 allow the public to understand the substance of the testimony.
12 This concludes the Trial Chamber's reasons for granting
13 protective measures for Witness 6.
14 I'm looking at the Prosecution. I take it that there's no
15 witness waiting out of this courtroom.
16 MR. HEDARALY: That is correct, Your Honour.
17 JUDGE ORIE: And could you tell us when there will be a witness
19 MR. HEDARALY: We will have a witness tomorrow morning at 9.00,
20 Your Honour. He had some logistical problems with his travelling in
21 terms of visas and he's arriving this afternoon so he should be ready
22 tomorrow morning.
23 JUDGE ORIE: Yes. Now, in view of the time anticipated for the
24 testimony of this witness, would that mean that there's a fair chance
25 that there's no witness available on Friday?
1 MR. HEDARALY: Depending on the length of cross-examination which
2 I believe will be limited, I think there's a very strong chance that
3 there will not be a witness for this Friday.
4 JUDGE ORIE: Yes. I said something about this yesterday in
5 court. Of course the Chamber is not unaware of the difficulties in
6 finding a fair balance between taking care that there's not a long queue
7 of witnesses waiting and spending their time in The Hague and at the same
8 time, to use court time as efficiently as possible which means every day
9 lost in court is a day the trial will take longer. At least if the
10 Chamber accepts that this is time which was not materially available to
11 the Prosecution to present its case.
12 We'll perhaps speak about that at a later stage when we pay
13 further attention to the scheduling of the remainder of this trial which
14 might take place somewhere early in July where the Chamber would like to
15 look back and look forward.
16 Mr. Misetic.
17 MR. MISETIC: Your Honour, if I could just speak on behalf of the
18 Gotovina Defence and I think I may be speaking on behalf of all the
19 Defence just so the situation is clear with the Chamber. We believe that
20 the Prosecution actually had a witness set for today that probably would
21 have taken two days but because of a family commitment of Mr. Kuzmanovic,
22 that was rescheduled because it was also an important witness for the
23 Markac Defence. This witness was called in his place, and so I feel as a
24 professional courtesy to our colleagues for having assisted us that we
25 certainly don't think that any time or punishment or otherwise should be
1 given to the Prosecution.
2 JUDGE ORIE: Yes. First of all, punishment is not as such, of
3 course, the Chamber is always encouraging the parties to use their time
4 as efficiently as possible. At the same time, it's highly appreciated,
5 Mr. Misetic, that you on behalf of all Defence teams defend the
6 Prosecution in this respect as well.
7 MR. HEDARALY: Mr. President, since we have some time, there is a
8 few administrative matters that I would like to address, if that's okay
9 with the Bench. It shouldn't take too much time but it relates to
10 testimony and requests that were made to the Prosecution and to the
11 parties regarding various items. So if you want, I can take a few mints
12 and there are three points.
13 If the Chamber is so inclined I can go through those now.
14 JUDGE ORIE: Yes. You indicated already earlier that if any time
15 would be available that you would intend to do this so please proceed.
16 MR. HEDARALY: The first item is with respect to the Witness 54's
17 testimony. A portion of the witness's testimony was in private session
18 and the Chamber asked the Prosecution to review the transcript and see it
19 was really necessary. That's found at page 2870 of the record and the
20 Prosecution has reviewed the transcript and the following portions can be
21 released into the public record: It starts at page 2800 line 24 to page
22 2811 line 15. That's the first matter.
23 JUDGE ORIE: Yes, of course the Chamber will look at it and --
24 just on the basis of these figures, of course, I can't say anything about
25 it. But we'll verify that and see whether this would lead us to decide
1 that this would be part of the public record rather than private.
2 Please proceed.
3 MR. HEDARALY: Thank you. The is second issue is with respect to
4 a video that was shown D136 that's a video that was shown which was
5 presented by the Markac Defence to show the evacuation drill that
6 occurred in the village of Trzic Tounjski
7 it and the Chamber asked the parties to agree where that is located, and
8 we have talked to the Defence and if we can have 65 ter 5179 on the
9 screen. The first page of it is a very simple map with the scale
10 depicting where that village is with respect to Knin and we can see that
11 it's approximately 150 or 145 kilometres from Knin close to the border of
12 Sector North, what was Sector North at the time.
13 JUDGE ORIE: That's the video of the cows and tractors.
14 MR. HEDARALY: The circle at the bottom is Knin and the village
15 is located on the top there. And if we can look at the second page of
16 this document, this is a document prepared by the Defence which gives
17 more specific view of the area and specifically the bridge over the
18 Mreznica river, and I believe it's called where we saw the footage. I
19 believe there's no objection. I talked to Mr. Misetic and the first page
20 was provided by the Prosecution, the second page by the Defence so I
21 think there's agreement on where that is located so if we could have that
22 marked and tendered into evidence at this point.
23 JUDGE ORIE: I see that there is no objection.
24 Mr. Registrar, could you --
25 THE REGISTRAR: 65 ter number --
1 JUDGE ORIE: I apologise. I'm confused by change of the
2 representative of the registry during the morning.
3 Madam Registrar, would you please assign a number.
4 THE REGISTRAR: Thank you, Your Honours. 65 ter 05179 will
5 become Exhibit P435.
6 JUDGE ORIE: P435 is admitted into evidence.
7 Mr. Hedaraly, please proceed.
8 MR. HEDARALY: The last item was a video that was shown to
9 Mira Grubor Exhibit D68 which was shown without the sound by the Defence
10 and if the Chamber remembers, we were provided the transcripts and it was
11 read into the record by myself. We now have the video with the sound so
12 we'd like to -- we would like to tender it at this point and maybe even
13 show the clip with sound if the Chamber would like.
14 [Trial Chamber and registrar confer]
15 MR. HEDARALY: It's a very short clip. It's only 30 seconds or
17 JUDGE ORIE: One second, Mr. Hedaraly.
18 MR. HEDARALY: Yes.
19 [Trial Chamber and registrar confer]
20 JUDGE ORIE: Yes, the Chamber would like to see the clip again.
21 MR. HEDARALY: It's 65 ter 5193 and we will play it right now.
22 [Videotape played]
23 "Operating theatre must be put in there because it's very
24 dangerous to work upstairs because of great bombing of city of Knin
25 near area. More than three hours Knin is shelled and a lot of wounded
1 especially civilian is in this city."
2 MR. HEDARALY: If we could have this is version with sound
3 admitted into evidence.
4 JUDGE ORIE: Madam Registrar, this was -- it was P.
5 MR. HEDARALY: It was D68.
6 JUDGE ORIE: Could D68 then be replaced by this new version of
7 the video with sound and I take it that there is a written transcript as
9 MR. HEDARALY: Yes, Your Honour.
10 JUDGE ORIE: The written transcript attached to it. Madam
12 [Trial Chamber and registrar confer]
13 JUDGE ORIE: Just in order to avoid whatever confusion, it will
14 remain D68 but the material which now is D68 is the complete material
15 including sound and a transcript attached.
16 MR. MISETIC: Your Honour, if we could get guidance for the
17 future on how we do this. The reason we didn't tender the audio is
18 because we know who the producer of the video is which I believe is
19 Zastava films and the Court had heard testimony about that before so we
20 would argue that there is a certain purpose behind the words that are
21 spoken on the video and the witness is not here.
22 Just -- I have no problem with it staying as a D number as long
23 as at the end of the case it's not stated that it is a Defence Exhibit
24 regarding what the -- the actual words that this person is saying on the
1 JUDGE ORIE: Yes.
2 MR. MISETIC: As long as the Chamber is okay with that, we're
3 okay with that and in the future, we'll tender audio like that but just
4 so it's known that our purpose was only to show who the basement actually
5 looked and like not what the person is saying on the video.
6 JUDGE ORIE: I do understand you want to avoid that any
7 suggestion, any inference is taken so it's now clearly on the record
8 where you sought to have the video admitted, that it was on the specific
9 request of the Prosecution that the sound was added.
10 MR. MISETIC: Thank you, Your Honour.
11 JUDGE ORIE: That's on the record.
12 Any further procedural matters?
13 MR. HEDARALY: Not from the Prosecution, Your Honour. If we are
14 done early today, perhaps we can address the MFI list if we have time.
15 That's just a suggestion.
16 JUDGE ORIE: Yes. That is not a bad suggestion as such but I
17 have the habit of thoroughly preparing for going through whatever list
18 there is so that I know for every item what we are talking about and what
19 there is to be done. Let me just check for a second.
20 [Trial Chamber and legal officer confer]
21 JUDGE ORIE: I suggest to the parties the following, that
22 Mr. Registrar will prepare a list of documents MFIed, that we take our
23 time to focus on what still has to be done. Sometimes nothing have to be
24 done, as a matter of fact, for some MFIs and that we resume at a quarter
25 to 1.00 and that we then try to go through the list in 50 minutes and
1 then at least I know what I'm talking about, and I hope of course
2 everybody knows what he is talking about.
3 MR. HEDARALY: I may have misspoke, Your Honour, I'm seeing in
4 the transcript, I was suggesting that we can do that tomorrow since we're
5 probably going to be done early so that everyone has -- can take the full
6 time to review it and I didn't discuss with the Defence before so I don't
7 want to -- I want to make sure they have enough time to prepare as well.
8 JUDGE ORIE: Mr. Hedaraly, whether we have time tomorrow,
9 tomorrow will -- tomorrow we'll know whether we have time. For today, we
10 know we have it. Therefore, I suggest that if the parties would consider
11 45 minutes is sufficient to go through the list to start with, if there
12 would be any remaining item which we could not prepare for in the next 45
13 minutes, we might have time tomorrow and then use that time as well.
14 Therefore, we'll now adjourn and will resume at a quarter to 1.00
15 for housekeeping matters, mainly MFIs.
16 --- Recess taken at 11.56 a.m.
17 --- On resuming at 12.54 p.m.
18 JUDGE ORIE: I again apologise for the late start but it might
19 be -- might have been a good investment that saves time in the next
21 You have been provided with a MFI list prepared by the registrar.
22 And I'd like to go through that list. The first one is D17 where the
23 exhibit was still to be amended to better reflect. Has the new or
24 amended exhibit been uploaded?
25 MR. MISETIC: It has, Your Honour, I believe we have an agreement
1 to admit that into evidence now.
2 MR. MARGETTS: Good afternoon, Your Honour, yes we add agree to
3 admit D17 as amended into evidence. There was just one other issue with
4 that. D17 is the Defence's map reflecting the sequence of film segments
5 that appear on two videos, that's video 0007194 and 0000990 in addition
6 to D17 --
7 JUDGE ORIE: If you take one second break if the numbers go that
8 high, please repeat them slowly, Mr. Margetts.
9 MR. MARGETTS: Thank you, Your Honour. It's V0007194 which is
10 previously marked P18 marked for identification, P18.
11 And it's V0000990, a portion of which was marked P59. Now, the
12 situation with video 0007194 which is P18 is that that was previously
13 marked for identification under seal. It doesn't need to be under seal.
14 And that is to be admitted without the audio. The Defence and the
15 Prosecution have agreed to that. Further we've agreed for the admission
16 of V0000990 which is 65 ter 3759, a portion of which was previously
17 marked P59. What we would like to do is have a further part of that
18 video admitted and if that could be is substituted for the current
20 JUDGE ORIE: Yes.
21 MR. MARGETTS: At P59.
22 JUDGE ORIE: Mr. Margetts, I hope you will forgive me that this
23 becomes at this very moment too complex for me. I, as I said before, I'd
24 like to know what I'm talking about. I've got a list in front of me
25 which doesn't give me any information about the other matters.
1 I suggest that if you -- what appears to be the case if you fully
2 agree with the Defence on these matters that you confirm in an e-mail to
3 each other what you agreed upon, if you sent a copy to Mr. Nilsson for
4 Chamber staff then we can review whatever is in there, we'll prepare the
5 decisions of course you hope in accordance with your agreement and we'll
6 deal with the matter.
7 At this moment, should we wait with D17 for those developments or
8 is there any issue about admission of the amended uploaded D17?
9 MR. MARGETTS: No, there's no issue Your Honour.
10 JUDGE ORIE: Yes. Then D17 is admitted into evidence and the
11 Chamber will further hear about P18 and P59 and with or without audio
12 changed or not changed but that really goes too quick for my limited
13 intellectual capacity.
14 MR. MARGETTS: Thank you, Your Honour.
15 JUDGE ORIE: Then I'd like to move on. D78. The issue was
16 whether, Mr. Mikulicic, whether you had tendered this document, yes or
17 no. I think there was only one question in relation to this document
18 that was put to the witness and the witness apparently gave a negative
20 MR. MIKULICIC: Yes, and we were waiting for official translation
21 which in the meantime has been provided so we would like to tender it
22 into evidence.
23 JUDGE ORIE: Yes. Mr. Hedaraly.
24 MR. HEDARALY: Actually my recollection is a little different.
25 It was a video that was shown to the witness and then one question put to
1 and the remainder of the video was shown and the Bench asked what the
2 relevance was. It was about the first baby boy in Knin and it was the
3 relevance and the Prosecution doesn't have any objection to it. It was
4 the Bench that had an issue with that document, that video.
5 JUDGE ORIE: Yes.
6 MR. MIKULICIC: First baby.
7 JUDGE ORIE: You think the first baby, whoever it is, whether
8 civilian or military, is -- what the relevance -- what is the relevance.
9 MR. MIKULICIC: It was not only a matter of the first baby born
10 in Knin hospital but it was also a matter of the wounded soldier of RSAK
11 having provided with medical help, as far as I can remember but that was
12 a long time ago.
13 So in the meantime, the official translation of that video has
14 been provided so ...
15 JUDGE ORIE: I remember that Ms. Grubor was asked whether she
16 could identify a person. I don't think it was the baby, but it was
17 another person. And then she said she couldn't.
18 MR. MIKULICIC: Yeah.
19 JUDGE ORIE: What is the relevance of having a video of a person
20 who apparently is not identified? If you have any other witness who
21 could identify that person.
22 MR. MIKULICIC: As far as I can remember, Your Honour, the other
23 video showed up who this person particularly was, so it was a Serbian
24 doctor who spoke in front of the TV cameras of the Croatian TV and
25 therefore, there is connection between two videos, trying to ...
1 JUDGE ORIE: What was the other video which was relevant in
2 this ...
3 MR. MIKULICIC: Well, out of the Bench, I could not provide it ad
4 hoc what was the other is video but the purpose is that we would like to
5 prove that 8 of the Serbian medical workers remained in the Knin
6 hospital. So one of them has been the person that was introduced to
7 Ms. Grubor and the other person was part of some other video which was
8 already admitted into the evidence but I don't have it right now in my --
9 JUDGE ORIE: Yes. We should then, please, if you say you've now
10 explained what in your view the relevance is. Could you give -- if I
11 could assist you.
12 MR. MIKULICIC: Yes.
13 JUDGE ORIE: The relevant transcript pages appear to be T1472.
14 That's where the question was put to Ms. Grubor. And then the issue of
15 relevance came up in 1476 and 1477.
16 Now, if you would please be so kind as to review those pages.
17 MR. MIKULICIC: Okay.
18 JUDGE ORIE: And to perhaps briefly, in an e-mail to be sending
19 copies to the other party, to briefly explain what links there are with
20 other pieces of evidence.
21 MR. MIKULICIC: I will do that, Your Honour.
22 JUDGE ORIE: And then we can consider whether the relevance is
23 such that it is ready for admission or not.
24 Then we move on to D131 and D132. I take them together. These
25 are --
1 MR. HEDARALY: No objections from the Prosecution, Your Honour.
2 JUDGE ORIE: No objections. Then D131 and D132 are admitted into
4 We move on to D133. I think there it was a matter of awaiting
5 translation. Has a translation been made?
6 MR. MIKULICIC: Yes, we have been provided with translation.
7 JUDGE ORIE: And has it been uploaded into e-court.
8 MR. MIKULICIC: Yes.
9 JUDGE ORIE: It has. Any objections?
10 MR. HEDARALY: No, Your Honour.
11 JUDGE ORIE: Then D133 is admitted into evidence.
12 I move on to D136. Now, the -- we heard about this document
13 already this morning a bit more that is about the evacuation drill, what
14 I always call the video with the cows and the -- now we have now received
15 additional information about where exactly it was, but I think still the
16 issue was pending whether there are any objections against D136 by the
18 MR. HEDARALY: There are no objections, Your Honour. I think the
19 objections that the Prosecution would have would be on the location and
20 it being outside the indictment area but I think that goes more to weight
21 than to admissibility to the Prosecution does not have any objection.
22 MR. MIKULICIC: Yes. I would like just to be on the safe side,
23 to point out to the part of the transcript and that is page 2253 until
24 2255 where witness saw, referring to that particular exercise, stated
25 that the exercise was in late June or early July 1995. So that is about
1 the time when this exercise has been introduced.
2 MR. HEDARALY: I'm sorry --
3 JUDGE ORIE: This is -- as a matter of fact, you are emphasising
4 that it's useful to have this in evidence where Mr. Hedaraly already said
5 that although he may give a different weight to it but that he is not
6 objecting against admission.
7 MR. HEDARALY: There was an issue as to the date of the video as
8 well being superimposed and I believe the testimony Mr. Mikulicic was
9 referring to was not as clear and the witness said he believed it could
10 be have been something that he had heard, but once again I just want to
11 clear up that part. But the point is that we don't object the
12 admissibility of it but we will down play the weight.
13 JUDGE ORIE: Mr. Misetic.
14 MR. MISETIC: I'm fully aware that this is not an admissibility
15 issue but just for clarification, counsel said it's outside the Sector
16 South area our position because we've also used the video is that the
17 video was played on radio, TV, Krajina, Knin, and therefore would have
18 been although not the evacuation itself didn't take place in Sector South
19 it was broadcast throughout the area which would have had an impact just
20 so the record is clear.
21 JUDGE ORIE: Yes. That is on the record.
22 Then D136 video is admitted into evidence.
23 D137, the next one, there was some issue about translation to be
24 agreed upon by the parties relevant transcript pages 2259. Is there an
25 agreement about the translation?
1 MR. MIKULICIC: Yes, I believe I could speak on behalf of my
2 colleague. The official translation has been provided by the OTP and we
3 agree upon the -- it was only one word.
4 JUDGE ORIE: It was only one word. Then -- and that official
5 translation has been uploaded in e-court?
6 MR. MIKULICIC: Yes, it was.
7 JUDGE ORIE: Then D137 is admitted into evidence.
8 We move on to D140, a document which was at the time awaiting
9 translation. Has the translation been received and has it been uploaded.
10 MR. MIKULICIC: Yes, Your Honour.
11 JUDGE ORIE: Now having received the translation, Mr. Hedaraly,
12 is there any objection against admission?
13 MR. HEDARALY: No, Mr. President.
14 JUDGE ORIE: Then D140 is admitted into evidence.
15 I move on to D141 Republika Srpska Krajina war bulletin dated the
16 1st of November, 1991.
17 MR. HEDARALY: No objection, Your Honour.
18 MR. MIKULICIC: We are still waiting for the translation.
19 JUDGE ORIE: Yes. Now, this is a very long document from what I
21 MR. MIKULICIC: It is. Not is so long, I believe around 30 pages
22 or is something.
23 JUDGE ORIE: I beg your pardon.
24 MR. MIKULICIC: Not is so long, I believe 30 pages or something.
25 JUDGE ORIE: But to be translated is --
1 MR. MIKULICIC: Yeah, yeah, of course.
2 JUDGE ORIE: Is quite an expensive matter, as a matter of fact.
3 I do understand that this was about an article written in 1991 and it was
4 tendered in order to demonstrate that when this was written by the
5 witness that he used the words Ustasha, et cetera. Why not agree on
6 that? Is there any -- I mean now we get 30 pages of which 29 and a half
7 translated at a high expense. Why could you not agree where there's
8 no -- at least I take it -- we're talking about the words used by the
9 witness when he wrote this article. Why not describe in one or two lines
10 what the article is about and then say that on page so and so, there and
11 there, the witness in this context used the words "Ustasha" or whatever
12 is relevant for you rather than to have 30 pages translated for that?
13 MR. MIKULICIC: Yes, Your Honour, I could see the reasoning in
14 that but it was not just one article. In fact, in all the articles in
15 that war bulletin was addressed towards the Croatian like Ustashas and
16 that --
17 JUDGE ORIE: Then you change the description that you say in five
18 articles contained in this document dealing with this and this and this
19 that the one who wrote these articles being the witness used derogatory
20 terms and you give three examples, then we have got five lines or perhaps
21 even ten if you make it a great deal and then rather to have 30 pages
23 Could the parties work on that?
24 MR. MIKULICIC: Yes.
25 JUDGE ORIE: This is of course urging you, of course, to use the
1 time and the resources of this Tribunal in the most efficient way because
2 it appears not to be a vital and core issue in this case apart of
3 language used by this witness which in your view demonstrates that he has
4 some bias against other ethnic groups.
5 Okay. Then the parties are invited to report to the Chamber
6 within two weeks about D141 and are also invited to be inventive in
7 trying to resolve matters which appear not to be vital and core issues.
8 Then I move on to D191. I think the Chamber is still working on
9 that so at this moment ...
10 MR. MISETIC: I don't think that was the issue, Your Honour.
11 JUDGE ORIE: There were a few issues, I think. It's a list of
12 members of the --
13 MR. MISETIC: I think, Your Honour, what happened was that was
14 the document I tendered concerning Mr. Gojanovic and whether he was on a
15 list of people who were recommended for a medal.
16 JUDGE ORIE: Yes.
17 MR. MISETIC: The court invited the Prosecution to review the
18 document because it's 78 pages long and asked if, in fact, his name is
19 not in there if we could shorten that document so that you didn't have 78
20 pages in and I think we have an agreement with the Prosecution which I
21 can just tell you that of the 78 pages, we would ask that D191 be
22 comprised only of the first two pages and the signature page at the end.
23 JUDGE ORIE: Mr. Hedaraly.
24 MR. HEDARALY: We have confirmed that his name does not appear so
25 we have no objections to reducing the exhibit in that manner.
1 JUDGE ORIE: When I said the Chamber was working on it, of course
2 what the Chamber does in these circumstances do exactly the same exercise
3 and the Chamber is quite confident that you did your work well but
4 sometimes we want to verify as well ourselves. But that's on the record.
5 No, the persons supposed to check for us is not in the courtroom but most
6 likely, D191 will be admitted into evidence very, very son.
7 MR. MISETIC: We obviously will wait for the Chamber to alert us
8 so we can upload the shorter version into e-court.
9 JUDGE ORIE: I think as a matter of fact if you already agreed
10 upon it, then I would take the risk and already upload it.
11 MR. MISETIC: Thank you, Your Honour. Thank you.
12 JUDGE ORIE: Then we have a series, and I'll take them together.
13 That's D193, D195, D196, D197, D198, D199, D200, D202, D203, D206, and
14 D207. These are all witness statements taken by the Gotovina Defence on
15 various dates. I think it is clear from the case law until now that
16 these statements cannot be admitted, Rule 92 bis and 92 ter would require
17 other matters. This of course doesn't mean that under no circumstances
18 at any later stage with the attestations needed that these statements are
19 in itself by their content of a nature that they could not be admitted,
20 but the procedural requirements for admission at this moment are not
21 fulfilled and therefore the Chamber would like to take a decision and
22 give them the status of marked not admitted.
23 MR. MISETIC: That's fine, Your Honour. I think what we had
24 agreed with the Prosecution at least at the moment was either to wait
25 until the Defence case to then put it to the witness -- to call these
1 individuals to confirm what's in the statement and/or I've had a
2 discussion with Mr. Tieger to see if there is a need that the Prosecution
3 feels for cross-examination of any of these witnesses and if so, then
4 that would be an issue if on the other hand we can come to an agreement,
5 that if called, the witness would say this and there's no
6 cross-examination then that at that point we would move to admit these
8 JUDGE ORIE: Yes, we have similar issues about other witnesses.
9 Some of them appear already on the witness list. The Chamber doesn't
10 want because the Chamber has considered this solution the Chamber rather
11 not speculate, first of all, whether there will be a Defence case.
12 Second, who would be on the witness list for the Defence for one of the
13 Defence teams. So therefore, in those cases, where we have not yet a
14 witness identified and on a witness list who may well be in a position to
15 give the attestations under Rule 92 ter, under those circumstances, to
16 give these documents the status of marked -- of marked not admitted, and
17 there, where there is a witness identified and is on the list, we just
18 leave them at the time being as MFIed and then we'll wait until the
19 witness appears and then see what happens.
20 This is not to is say that these documents marked but not
21 admitted could not ever get another status if a witness appears. I mean
22 that's --
23 MR. MISETIC: That's fine, Your Honour. Thank you.
24 JUDGE ORIE: Yes. Then that means that the numbers I just read
25 now receive the status of marked not admitted.
1 I move on to D266 which is a situation which is not exactly the
2 same because here, it is a witness statement taken by the Prosecution.
3 At the same time, I don't think that this witness appears on the witness
4 list of the Prosecution and in view of what I said before, this would
5 then lead to this document obtaining the status of marked not admitted.
6 Mr. Mikulicic, you are on your feet. Would you like to --
7 MR. MIKULICIC: Yes, thank you, Your Honour.
8 JUDGE ORIE: -- say anything about it.
9 MR. MIKULICIC: What we would like to propose is to admit this
10 statement as in evidence across the bar table because we are of strong
11 belief that the statement itself is reliable and relevant to the case,
12 Mr. Raskovic and the protected Witness 56 knew each other, they have been
13 working in a very same police municipality and the statement of
14 Mr. Raskovic is very relevant to the case as it refers to the situation
15 that was before the Operation Storm apparently to the -- refers to the
16 media that has been produced there, news in a form the state Krajina and
17 above this, the statement has been provided by the OTP investigators is
18 so they have any possibility to pose questions to the witness, possible
19 witness, Mr. Raskovic, as they would like to, and I have seen no reason
20 why statement as such could not be admitted as in evidence because it's
21 sufficiently relevant and reliable.
22 JUDGE ORIE: Yes.
23 MR. MIKULICIC: And --
24 JUDGE ORIE: I think as a matter of fact that -- and that's true
25 for all the other documents we discussed a minute ago. The issue is not
1 relevance. The issue is not reliability. The issue is whether we could,
2 without violation of Rule 92 bis, 92 ter, 92 quater whether we could
3 admit them into evidence, where the plenary of Judges have adopted rather
4 specific rules on the admission of written statements I would say in oral
5 testimony. That is the issue, not relevance, not reliability and as I
6 said before, if apparently the Prosecution is not intending to ask
7 permission to change its witness list; so therefore, it appears that they
8 have no interest in tendering this evidence then, of course, it's for the
9 Defence if it ever comes to a Defence case, if they want to have this in
10 evidence to either present it under Rule 92 bis or present it under Rule
11 92 ter but as said before, the Chamber, and I think this has been
12 discussed at various occasions and is at this moment, also not only the
13 rules but I think also the practice of this Tribunal, if you want to
14 change that, and if you want to -- if you want this Chamber to admit
15 written statements outside the very specific rules 92 bis, 92 ter, 92
16 quater then you should make an application for us to revisit the issue.
17 It is a procedurally not simple matter.
18 MR. MIKULICIC: Yeah, I know that. I just have it in mind, Your
19 Honour, when I propose to be admitted as in evidence over the -- across
20 the bar table because I would like to be practical and save some time for
21 the Chamber and on the other side, I think that statement could assist
22 Your Honours in obtaining your decision.
23 JUDGE ORIE: Yes, perhaps all the others could assist us as well.
24 MR. MIKULICIC: Yeah, I'm sure of it.
25 JUDGE ORIE: But under the -- Mr. Hedaraly, do you have any
1 anything to add.
2 MR. HEDARALY: No, Your Honour. I think you have expressed and
3 the Prosecution shares the concerns that you have raised that there are
4 specific reasons why witness statements are admissible under certain
5 specific circumstances which are Rules 92 bis, ter, quater, and if we go
6 down this road then all statements that have been taken should be
7 admissible and I don't think that is something that would assist the
9 [Trial Chamber confers]
10 JUDGE ORIE: The Chamber changes the status of D266 from marked
11 for identification into marked not admitted.
12 Mr. Mikulicic, again, if you want to raise the issue, no one
13 prevents you from doing it but do it well documented and preferably in
14 writing and I'm not encouraging you to do it, but if you want to do it.
15 MR. MIKULICIC: Yes, I'm aware of that. Well, you know, I just
16 had in mind that maybe the Defence would not be able to call this witness
17 as Defence witness because there will be no Defence case. I cannot say
18 for the moment.
19 JUDGE ORIE: But then it's not really damaging your interests,
20 isn't it.
21 MR. MIKULICIC: Yes, of course.
22 JUDGE ORIE: Yes. Under those circumstances.
23 MR. MIKULICIC: I am aware of it, thank you, Your Honour.
24 JUDGE ORIE: I would be happy, I think, if I were you.
25 Then we move on to D267.
1 MR. HEDARALY: Yes, Your Honour. That was a document where there
2 was some pages missing. We provided the document to the Cermak Defence
3 so I don't know if it's been uploaded or not but they have the document.
4 MR. KAY: Your Honour, all the formalities completed, full
5 document in e-court, we move for its admission.
6 JUDGE ORIE: Uploaded. I reviewed this document recently and one
7 of the things that struck me is that the ERN numbering is sequential so
8 where we move from page -- what is it, from the first page to the third
9 page, where originally page 2 was missing, that nevertheless, the ERN
10 numbering was sequential but I take it then that a full document has been
11 found and is now not objected against anymore and -- because my latest
12 information was that the document uploaded in e-court, the original was
13 still not complete.
14 MR. KAY: That is not one of ours, Your Honour.
15 JUDGE ORIE: Yes. Yes. Let's --
16 MR. KAY: One of the Prosecution's.
17 JUDGE ORIE: Mr. Hedaraly, have you uploaded it under a 65 ter
18 number or have you replaced D267 which was incomplete by a more complete
20 MR. HEDARALY: My understanding, Your Honour, and I have that
21 obviously from a colleague that the full exhibit was sent to the Cermak
22 Defence on the 29th of May and the Chambers was included on that e-mail
23 and that we indicated that we had no objections to the Defence replacing
24 the current documents in e-court with the full document which I
25 understand is what the Cermak Defence has done so to the extent that that
1 has happened, we don't have any objection.
2 Now, I don't have any specific personal knowledge about this
3 document but my understanding was that all the formalities were indeed
4 completed for its admission.
5 JUDGE ORIE: Now, we all have computers. We'll check now whether
6 we have a complete --
7 MR. KAY: The 2D reference is 2D03-0259 of the new, complete
9 [Trial Chamber and registrar confer]
10 JUDGE ORIE: The D267 has not yet been replaced by the new
11 version, but I do understand from Mr. Registrar that the complete
12 document has been uploaded into e-court, it's now just a matter of having
13 this replaced by -- to replace the old version by this new one, and we'll
14 have a look on our screen now.
15 Yes, it -- I now see that it's not a missing page which is now
16 added but that this document is -- it looks like a telex copy of the
17 original one because the one that was uploaded until now didn't have the
18 coat of arms of the Croatian Republic
19 to be the same. Also in the old version, there were some stamps on it
20 which do not you appear on this new one so if we are working on the basis
21 of the old version that was uploaded, and now you is see them next to
22 each other --
23 MR. HEDARALY: Your Honour, I believe the issue was that in the
24 old version it goes from paragraph 2 and then the next page then jumps
25 from paragraph 10 or 11 whereas in the new version which admittedly comes
1 from a different source but the beginning is the same and we see that
2 there's not that gap in the paragraph numbers so although Your Honour is
3 correct that the source of this document is probably different, I believe
4 the parties are in agreement that it is the same document and therefore
5 should have the full version of it. We can have both the incomplete
6 version with the stamps and this new version ...
7 JUDGE ORIE: I'm not seeking that I'm just telling you that where
8 the Chamber expected that one missing page would be added that we now
9 have a completely different version of what appears first eye to be the
10 same document. If the parties agree on that, then I think that there's
11 no reason to -- but not -- no reason not to admit it. But at the same
12 time, I'd like to invite the parties also to carefully check at this
13 moment whether the translation does not contain elements which are now
14 not anymore available in the original that is the stamps and the markings
15 on it.
16 The parties are invited to report by tomorrow to the Chamber
17 whether the translation needs any further redaction or adaptation to the
18 new version but this document now with the coat of arms now replaces
19 Exhibit D267 and is, as such, admitted into evidence.
20 MR. KAY: Yes, Your Honour. I am informed that the translation
21 follows the new version. The issue of the different documents, is of
22 course, different sources of the same document.
23 JUDGE ORIE: Yes, I'm not ...
24 MR. KAY: Yes.
25 JUDGE ORIE: I see a document with a totally different appearance
1 and I want to make sure for myself and for the Chamber that we are
2 talking about the same document. That having been clarified, we now move
3 on to D278.
4 MR. KEHOE: Yes, Your Honour, this is a --
5 MR. HEDARALY: There no objections.
6 MR. KEHOE: We did talk with Mr. Russo. During the course of
7 Captain Hill's testimony, we had a series of photographs.
8 JUDGE ORIE: Yes.
9 MR. KEHOE: He said two photographs and it's 1D26-0013 and
10 1D26-0014, he is said that they were taken in Sector North not Sector
11 South so we were going back to that pile and removing those, not
12 tendering those photographs because they're not in the applicable area.
13 JUDGE ORIE: Yes, I notice that that they should be uploaded now
14 in the final version of the series.
15 MR. KEHOE: Yes.
16 JUDGE ORIE: There are no objections. Therefore D278 is admitted
17 into evidence. We move on to D284 where no action is required because
18 that is one of the statements where the witness who could attest to the
19 statement is on your witness list, Mr. Hedaraly.
20 We then move on to D294 where I think the Defence suggested that
21 the transcript and this video clip, I remember that was the touring,
22 whether to go to the right or to the left to certain places, that they
23 had another witness in mind who might be in a position to say something
24 about this video clip. Here again, I would follow the guideline that if
25 this witness is identified and appears on a list, that we keep the status
1 marked for identification. If, however, we have not found yet a witness
2 who could testify about that document, that it will be marked not
3 admitted which, of course, does not exclude for the possibility that at a
4 later stage, if a witness appears, he could say something about the video
5 that it could gain another status.
6 Mr. Mikulicic.
7 MR. MIKULICIC: Yes, Your Honour. We will follow your guidance
8 with that.
9 JUDGE ORIE: That means that D294 changes now its status in --
10 from marked for identification into marked not admitted.
11 Then we have a rather long list starting with D347 up to and
12 including D382 which are, if I could call them, the Elleby documents for
13 which we have to establish first of all whether translations are there.
14 Second, whether the originals and the translations are uploaded into
15 e-court. And then whether there are any objections against admission.
16 I would suggest that the parties report on this matter -- Mr. --
17 MR. HEDARALY: I can state for now that if the two first parts
18 are met if they are put in the translations, the Prosecution does not
19 have any objections to any of those exhibits being admitted.
20 JUDGE ORIE: Then Mr. Kay, if there are full translations there
21 and are they all uploaded into e-court.
22 MR. KAY: Yes, we are advised that the Prosecution acted on the
23 matter virtually straight away and that matter has been now formalized so
24 that Your Honours have a complete bundle. You will remember the bundle I
25 handed you had some of the documents not translated but that the whole
1 matter has been attended to by the Prosecution.
2 JUDGE ORIE: Yes.
3 MR. KAY: For which we are grateful.
4 JUDGE ORIE: Then all these documents, that is D347 up to and
5 including 382 are admitted into evidence and, of course, we'll verify
6 together with the registrar whether the -- all the translations are
7 there. This is not to say but again that's a matter of weight, the
8 Chamber has looked into this material as well that not to say that it was
9 always for the full 100 per cent consistent, the reports come in one by
10 one and not every victim keeps the same status in the next reports.
11 Therefore, there may be still quite a lot of questions about these
12 documents but no reason not to admit them. Therefore, we, as I just
13 said, they are admitted into evidence.
14 Then we have P23, a number of anonymous reports. There, I think,
15 the question is whether there is any other witness on a list which could
16 shed more or better light on the anonymous reports.
17 MR. HEDARALY: Your Honour, there are witnesses on the list but
18 that's on a list of witnesses that the Prosecution has decided not to
19 call because they were not able to -- for various reasons so on the
20 Prosecution's list right now, there are no witnesses that will testify to
21 those events and I believe the agreement with the Defence was that this
22 would remain marked and not admitted and if the Prosecution would move
23 later would have witnesses come in for that then we would revisit the
25 JUDGE ORIE: Then P23, the status of this number of reports
1 changes from marked for identification into marked not admitted.
2 Last one on my list is P320.
3 MR. HEDARALY: Your Honour, I believe the issue in that is for
4 some reason, part of the document or that annex had not been available to
5 the Defence so they simply reserved so they could review.
6 JUDGE ORIE: The Defence asked time to review the 32 pages of
7 this document before expressing whether there were any objections. Could
8 I hear from the Defence whether there are any objections against P320.
9 MR. KEHOE: Yes, Your Honour, the issue I have with this
10 particular document is that it was just a series of allegations that were
11 presented to the UN and translated. That's all it is. There is no --
12 the witness himself had no knowledge of this, these instances because it
13 was presented during Colonel Morneau's testimony, it was just people that
14 walked up to CanBat, gave a statement, they wrote it down and that was
15 that. So with regard to the actual reliability of this information, it
16 wasn't investigated by any UN agency it was simply a scrivener's effort
17 on behalf of CanBat writing down what these people said and then
18 translating it. We can't get behind it we can't challenge it. These are
19 is certainly allegations that go towards a variety of people, some
20 identified as soldiers, some identified as civilians.
21 So the reliability of this document obviously is suspect without
22 more information so we do object to this. It came in at the time, if you
23 recall, it had come in and uploaded at the last minute and I asked for an
24 opportunity to review it and upon reviewing it, I have concluded that
25 there is simply no support for any of this information nor could we
1 challenge it.
2 JUDGE ORIE: Mr. Kehoe -- yes, Mr. Hedaraly.
3 MR. HEDARALY: I was just going to say that this is -- this has
4 happened quite several times and I believe that the practice in this
5 Chamber at least that I have witnessed is that those concerns would go to
6 the weight given to the document by the Chamber and not to the
7 admissibility of it -- a number of documents presented to the witness,
8 the witness says I don't know anything about it and it is then tendered.
9 We had that happen today as well and I thought that that was sort of the
10 practice that those come in and that the Chamber gives them the weight
11 that they feel is appropriate.
12 JUDGE ORIE: Yes, Mr. Kehoe, of course one of the matters here
13 appears to be what the document could demonstrate. I think that there
14 could be a fair expectation that just on the basis of someone reporting
15 something, another person writing it down that the Chamber would not
16 easily, on the basis of that alone, accept that what was reported is in
17 accordance with the truth but sometimes it's also very relevant to
18 establish that something was reported or how many events were reported or
19 to establish, perhaps, that what was reported is inconsistent with other
21 There are many ways of looking at these kind of documents and you
22 addressed one. I'd like to know whether you'd like to add something.
23 I'd also like to know whether -- what the position of other Defence teams
24 is and then most likely the Chamber will decide but perhaps not
1 MR. KEHOE: Your Honour, I understand that this similar
2 situations have come up and Your Honour does instruct that it goes to
3 weight. I still am of the belief that a document such as this with no
4 foundation for this document other than what literally no foundation,
5 this is allegations coming across the bar table because the witness
6 didn't know anything about it that there is insufficient support for that
7 foundation and I understand that Your Honour -- the Chamber can then
8 balance this information but there has is some type of rudimentary
9 foundation set forth for a document such as this to come in.
10 JUDGE ORIE: Position by other Defence teams.
11 MR. KAY: Your Honour, we understand entirely the argument
12 submitted by the Gotovina Defence team on this issue.
13 JUDGE ORIE: You understand.
14 MR. KAY: Well, we support it.
15 JUDGE ORIE: That's not being the same.
16 MR. KAY: We are being economical with our words.
17 JUDGE ORIE: I take it you understand what Mr. Kehoe said, do you
18 also support it.
19 MR. MIKULICIC: Yes, we do, Your Honour.
20 JUDGE ORIE: Then the Chamber will decide in due course on
21 admission of P320 which therefore at this moment keeps the status of MFI.
22 MR. KEHOE: Yes, Your Honours, just one last word it's just quite
23 simply documents that come in with these types of allegations preclude us
24 from confronting the information on a Defence side, we just have no way
25 to confront these allegations and that's the sum and substance of our
1 argument. Thank you.
2 JUDGE ORIE: Yes, that's what I take it that Mr. Kay understood
3 and we understood well as well.
4 Mr. Hedaraly.
5 MR. HEDARALY: The Prosecution would appreciate the guidance of
6 the Chamber in these matters because obviously the Prosecution will then
7 obviously change its position with Defence Exhibits as well that are
8 introduced without the proper foundation, so we will appreciate the
9 Chamber's guidance on this issue.
10 JUDGE ORIE: Apparently you fairly well also understood the
11 argument of Mr. Kehoe.
12 Mr. Mikulicic, of course we have -- we have a long series which
13 still have to be prepared by Mr. Registrar and numbers to be assigned and
14 we will do some stock taking on whether there will be objections, but we
15 are not yet in the system that far. That's the reason why I had on my
16 mind to stop here; but if there is anything other than that we know that
17 there is still quite a lot of documents waiting for numbers, waiting for
18 positions to be taken by the parties, and waiting for positions to be
19 taken by the Chamber then please tell us.
20 MR. MIKULICIC: Yes, Your Honour, thank you. I would like to
21 refer to three documents that has been used although not has been used by
22 my colleague, Mr. Kuzmanovic in a cross-examination of the
23 Witness Jacques Morneau and that cross-examination has been admit as
24 evidence D292 and 293 and apparently because of the time which expires,
25 Mr. Kuzmanovic was not able to introduce three relevant documents along
1 those lines which was 65 ter numbers 01005, 01745, and 02301. And we
2 were proposing to admit those documents across the bar table and as I
3 understood, Ms. Mahindaratne has no objections on it and as your
4 guidance, the Chamber would like to have look at these documents, so I
5 believe now we can propose to admit them as in evidence.
6 JUDGE ORIE: Have numbers already been assigned to these
8 [Trial Chamber and registrar confer]
9 JUDGE ORIE: Mr. Mikulicic, I'm looking at the clock. We will
10 prepare further for the documents you just mentioned. We'll deal with
11 them on short notice but at this moment, we have to adjourn.
12 MR. MIKULICIC: I have patience, Your Honour.
13 JUDGE ORIE: Yes. We adjourn and we'll resume tomorrow morning,
14 9.00 in this same courtroom.
15 --- Whereupon the hearing adjourned at 1.48 p.m.
16 to be reconvened on Thursday, the 12th day of June,
17 2008 at 9.00 a.m.