1 Monday, 23 June 2008
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 9.04 a.m.
5 JUDGE ORIE: Good morning to everyone.
6 Mr. Registrar, would you please call case.
7 THE REGISTRAR: Good morning, Your Honours. Good morning to
8 everyone in the courtroom. This is case number IT-06-90-T, The
9 Prosecutor versus Ante Gotovina et al.
10 JUDGE ORIE: Thank you, Mr. Registrar.
11 Before I invite the Prosecution to call its next witness, I would
12 just like to inquire into a submission made by the Markac Defence. We
13 received a submission, defendant Mladen Markac motion to have one of
14 Witness 81's statement deemed inadmissible; but it deals, as a matter of
15 fact, with the expansion of the scope of testimony for Witness 116.
16 These are two different witnesses. On the first page, we find defendant
17 Mladen Markac to have, one, Witness 81's statement deemed inadmissible,
18 but then it continues about Witness 116.
19 [Trial Chamber and registrar confer]
20 JUDGE ORIE: And I do understand that although the date is
21 20th of June, that it was filed this morning.
22 Mr. Kuzmanovic, any reason on why there was a reason to mix up
23 two witnesses.
24 MR. KUZMANOVIC: Yes, Your Honour. What ended up happening was
25 when it got sent, somehow it got -- the face page got mistranscribed, and
1 we'll correct it; however, this morning, Mr. Misetic will address the
2 other portion of the issue.
3 JUDGE ORIE: Yes. At the same time, it is not just the cover
4 page. It is also the first page where we have two witnesses.
5 MR. KUZMANOVIC: Understood, Your Honour.
6 JUDGE ORIE: May I take it that the submission is about
7 Witness 116.
8 MR. MISETIC: Their submission is, yes.
9 MR. KUZMANOVIC: Yes, our submission is, Your Honour.
10 MR. MISETIC: For the record, we, the Gotovina Defence, will be
11 filing a motion to strike the second 92 ter statement that is referenced
12 in the caption, which will hopefully filed in the next day or two.
13 JUDGE ORIE: Second 92 ter statement of Witness 116?
14 MR. MISETIC: No.
15 JUDGE ORIE: 81.
16 MR. MISETIC: 81, yes.
17 JUDGE ORIE: Yes. But, today, we are dealing with Witness 116,
18 so 81 will --
19 MR. MISETIC: Will wait, yes.
20 JUDGE ORIE: -- will wait until we've done with this one.
21 Then I also do understand that the there were no objections
22 against the admission of statements and exhibits, apart from the last two
23 ones, two maps to be exhibited, where I think it was the Gotovina Defence
24 who said it is irrelevant; and if it would be admitted, we'd need one
25 more day for cross-examination.
1 Mr. Tieger, is there anything you'd like to -- you have already
2 responded to that, saying that it is relevant. The main issue seems to
3 be that you say that whatever policy was there in view of Bosnia
4 irrelevant for this case.
5 MR. KEHOE: Yes, Your Honour. That also includes not just the
6 maps but the transcript of the 29 October 1993 matter. If I may, Judge,
7 on various different levels, obviously it -- 1993 has got very little to
8 do with this case. It certainly has nothing that connects it to our
9 client General Gotovina. And, probably, the most significant issue here
10 with regard to this is it is actually a matter which will impeach the
11 Prosecution's witness, Ambassador Galbraith.
12 If the theory on bring this matter in, especially the whole
13 discussion in 1993, that President Tudjman had some idea to cleanse the
14 area of Serbs and he engaged in a methodology on that score, which is, I
15 assume, what the Prosecution is attempt to go bring this in, that is
16 undercut, not only undercut, but eliminated by this witness in
17 paragraph 81, where he notes in the first line: "I don't think it was
18 Tudjman's plan to expel all Serbs from Croatia." That's the
19 second-to-last paragraph in his statement.
20 That being said, Your Honours, number 1, it certainly well
21 outside the time-frame of this indictment; number 2, there is nothing
22 whatsoever linking any comments by President Tudjman at any time-frame to
23 General Gotovina; and, number 3, the admission of this evidence is
24 impeaching their own witness, which, Your Honour, quite frankly, under
25 Rule 90 is improper. I mean, the Prosecution is allowed to put their
1 case on and their cases comes from this particular witness, but
2 impeaching their own witness is yet a different matter.
3 So, suffice it to say, just based on the first line in
4 paragraph 91 alone, there's really no relevance to this particular line
5 of inquiry on Bosnia
7 I note, Your Honour, that the entire matter of President Tudjman
8 and Bosnia
9 started sometime 2007, and it looks destined to end sometime in the
10 latter part of 2009. So we're talking about an extremely complex issue
11 which has been highly debated in another forum within the ICTY. I don't
12 think we need get that fair, Judge.
13 The fact of the matter is that it has absolutely no relevance to
14 this case, and this particular witness is going to say that in his -- in
15 paragraph 91 [sic], exactly what he outlined before, that it wasn't
16 Tudjman's plan to expel all Serbs from Croatia.
17 Now, the other aspect to this, Judge, and a matter which we also
18 take in on Rule 90(H) is the matter of probative value verse prejudice.
19 I mean, what is the probative value of this particular line of inquiry
20 vis-a-vis the prejudice that will emanate to our client, especially when
21 the Prosecution has got absolutely nothing to tie General Gotovina to
22 this item.
23 Given those circumstances, Judge, what I have just outlined, the
24 time-frame, the lack the relevance, the lack of connection, and the fact
25 that this particular witness undercuts this is entire theory, especially
1 vis-a-vis Operation Storm, there's simply no reason to allow this item
2 into evidence.
3 JUDGE ORIE: Mr. Tieger.
4 MR. TIEGER: Thank you, Your Honour.
5 JUDGE ORIE: First, before we continue, I see "paragraph 91." On
6 the transcript, I think I heard you say "81," and that seems to be more
7 in line with your argument.
8 MR. KEHOE: No.
9 JUDGE ORIE: I don't think it was. Tudjman's plan appears in 81.
10 MR. KEHOE: 81. If I said "91," I meat "81."
11 I apologise for that.
12 JUDGE ORIE: I don't know where the mistake was, but let's
14 Mr. Tieger.
15 MR. TIEGER: Thank you, Your Honour.
16 JUDGE ORIE: I think I spoke too quickly as well.
17 MR. KEHOE: If I may just correct one other item. What I was
18 talking about on the prejudicial -- the probative value being outweighed
19 by the prejudicial effect is Rule 89(D). I misspoke and talked about
20 Rule 90; it's Rule 89(D).
21 JUDGE ORIE: Mr. Tieger.
22 MR. TIEGER: Yes, Your Honour. The Defence argument concerning
23 these issues appears to conflate several matters. I don't know if I can
24 you think tangle them, but let me try quickly.
25 First of all, the allegation that, for example, the 1993
1 transcript is untimely because it is early, or because it demonstrates no
2 explicit link to the accused, does not go to the issue for which that
3 document was produced and the witness's comments about them. The witness
4 offers extensive testimony about the position and attitudes of the
5 Croatian leadership toward the continued presence of Serbs in the
6 Krajina. He explains and will explain to the Court the basis for his
7 understanding of those views. That includes his deals with the Croatia
8 leadership from the commencement of his term as ambassador.
9 That document points to an expression of views that is consistent
10 with and that form part of the basis for his assessment of
11 President Tudjman's views about multi-national states, about the need for
12 ethnic homogeneity in a state and its resultant implications for actions
13 that were taken in connection with this case.
14 This is not an attempt to criminal responsibility for actions in
15 Central Bosnia
16 case currently ongoing in this institution does not mean that the Court
17 should be precluded from hearing evidence that is relevant to this case.
18 And, clearly, evidence of President Tudjman's views and the views
19 of other Croatian leaders about such issues as ethnic homogeneity,
20 population transfers, and the like, is relevant to this Court, and should
21 be heard.
22 In so far as impeaching one's witness is concerned, I think the
23 Court is entitled. First of, all this is not an impeachment. Defence
24 quotes one passage of the witness's statement. It is clear that that
25 statement continues: He didn't start out in 1991 to do this. It also
1 goes on: That had the Serb population remained, policies would have been
2 such to make them leave. There are other portions of his statement and
3 of his anticipated evidence that will make clear the policies that were
4 implemented in the Krajina to ensure that Serbs did not return and to
5 ensure a largely homogeneous state.
6 All of this evidence is of clear relevance to this case, and
7 should be heard by the Court. In so far as the balance of the evidence
8 to the potential prejudice, there's no attempt here to, as I say,
9 litigate the issue of criminal responsibility for a Central Bosnia.
10 The Court is clearly capable of segregating these issues to the
11 extent that witness received information and that is relevant to this
12 case. And, certainly, as I have mentioned, the positions and attitudes
13 of the Croatian leadership, and particularly President Tudjman,
14 concerning Serbs and ethnic homogeneity is relevant and, indeed, should
15 be heard.
16 And the Court can easily separate those issues, particularly in
17 light of the fact that the emphasis will be on the issues I have
18 mentioned and not -- not criminal responsibility for actions in
19 Central Bosnia
20 JUDGE ORIE: Thank you.
21 MR. KEHOE: May I respectfully. First of all, as Your Honour was
22 pointing out the obvious, I mean, President Tudjman is not on trial hear.
23 Of course, the reason that the Prosecution wants to put this is in is to
24 somehow link this up to General Gotovina and somehow have this item out
25 is there that is some kind of overflow on to General Gotovina with
1 absolutely no evidence whatsoever. And if that is clearly what is
2 envisaged in 89(D), when we talk about prejudice outweighed by the
3 probative value, what other reason could there be for the Prosecution to
4 put this in, if it wasn't to somehow bring General Gotovina in to this
5 when there is no evidence whatsoever?
6 Now I will tell you, Judge, that the time involved in answering
7 President Tudjman's views in Bosnia
8 in is just an enormous undertaking. I mean, logistically here - I know
9 time is a concern to Your Honours - logistically here, it is physically
10 impossible a this juncture to meet that.
11 I mean, if this goes forward in this fashion, in the way that the
12 Prosecution wants to propose it, then it is going to significantly
13 lengthen this matter and possibly call this witness back at some other
14 juncture, but certainly lengthen any case as we develop this matter with
15 witnesses to come. I don't know how far that's going to go time-wise.
16 But, suffice it to say, the simply matter here, as a result of
17 paragraph 81 - and this case involves Operation Storm. It doesn't
18 involve Bosnia
19 Operation Storm - is that Tudjman didn't have any intent to cleanse the
20 Croats -- excuse me, the Serbs from Croatia.
21 Now, if that's the case, as we move into Operation Storm, that
22 there was no intent to exclude the Serbs from Croatia, and this is a
23 matter with which General Gotovina is called do answer these charges, how
24 is this other matter relevant to a case against General Gotovina? Not
25 President Tudjman, or not some other leader that has not been charged;
1 General Gotovina. How is that relevant? Nothing the Prosecution has
2 just said, in the speech they just gave, answers that very crucial
3 question: The link to this man and his right to answer that particular
5 This is going way far afield to try to bring in evidence that
6 simply doesn't exist linking General Gotovina to any idea of expelling
7 Serbs from Croatia
8 evidence, let's deal with that evidence. Let put that on the table right
9 now, so General Gotovina through his counsel can answer it; not through
10 these innuendos and allegations and 1993 conversations, especially in
11 light of this comment by Ambassador Galbraith who was here at the time
12 who said that Tudjman had no such intent certainly as it pertained to
13 Operation Storm.
14 It is just an enormous undertaking that they have thrown before
15 this Chamber that if allowed to pursue, it is going to take an enormous
16 effort to answer. I don't want to engage in hyperbolic arguments, Judge,
17 but I raised the Prlic matter simply because that is what they have been
18 doing for the past two years.
19 But it all comes down to relevance, some connection to General
20 Gotovina; and in light of what Ambassador Galbraith said that there was
21 no intent by Tudjman to exclude the Serbs from Croatia, this is a
22 non-issue in this particular Chamber and this particular case with regard
23 to General Gotovina.
24 JUDGE ORIE: Mr. Kuzmanovic.
25 MR. KUZMANOVIC: Thank you, Your Honour.
1 Your Honour, I'd like to add something to this discussion, and
2 that is this: I'd like to know when the decision was made to enter into
3 this discussion by the Prosecution of using ethnic maps through
4 Ambassador Galbraith, because the first notice we got of this was on
5 June 20 when this exhibit showed up on our e-mails, and an e-mail
6 exchange occurred between counsel for General Gotovina and Mr. Tieger
7 about this subject.
8 It's not as if this was something that we were received notice of
9 and had plenty of time to prepare for and knew something about in
10 advance. This was something that was thrust upon us at the last minute,
11 an entirely huge issue, involving, as Mr. Kehoe said - I'm not going to
12 repeat what he said - but, obviously, a number of complicated facts and
13 opinions and about a person who is not on trial.
14 So, you know, this case is about Operation Storm and the relevant
15 responsibilities, if any, of these defendants for the acts alleged in the
16 indictment; not something that happened in Bosnia occurring around
17 discussion in 1993 through a witness who really has, in my view, nothing
18 to do with my particular client in terms of what he says in his
19 statement, or it is just general background information which really
20 isn't necessary. And as far as I'm concerned, it runs far afield from
21 the issues of the indictment in this case relevant to these clients in
22 this case.
23 Thank you.
24 JUDGE ORIE: Thank you. Could we hear from the Cermak Defence
25 whether they --
1 MR. KAY: Yes, Your Honour. It seems that the scope that the
2 Prosecution are using in relation to this matter falls outside the ambit
3 of the case that is on trial here concerning Operation Storm. And it is
4 quite clear from what they are doing, they are seeking to provide
5 foundation from elsewhere in support of their argument in relation to
6 Operation Storm but not directly related to this particular case.
7 [Trial Chamber confers]
8 JUDGE ORIE: The Chamber will take a while to consider the
10 MR. TIEGER: Your Honour, I'm sorry.
11 JUDGE ORIE: Mr. Tieger.
12 MR. TIEGER: I didn't have a chance to respond.
13 JUDGE ORIE: I do agree, but I also had in mind to ask the other
14 Defence counsel to give their views. They've done so, meanwhile. But if
15 an objection is made, if it is in response to Mr. Kehoe, usually you
16 ask -- you just do not respond yet, but you ask whether there is a second
17 round of argument. That is not a drama here.
18 MR. KEHOE: I do apologise, Judge.
19 JUDGE ORIE: But, then, I think it is also fair to give Mr.
20 Tieger a brief opportunity; although, I did not hear much new argument,
21 Mr, Tieger, so if you could keep it short.
22 MR. TIEGER: Very short, Your Honour.
23 First of all, three matters, I guess, quickly: Number one, the
24 attempt to disentangle President Tudjman from this case is clearly in
25 opposite, and would be, in any event; but clearly so by virtue of the
1 fact that there is a JCE allegation.
2 Number 2, Mr. Kehoe said part of the argument is based on the
3 fact that the witness's testimony is that there was no intent to exclude
4 Serbs from Croatia
5 the Courts needs to here that.
6 Number 3, as far as the maps are concerned, they are practically
7 matters that could be judicially noticed. There were only put on the
8 exhibit list to provide clarification to the Court in so far as was
9 necessary based on witness evidence. It doesn't involve new matters, and
10 it arises directly from information that is part of the witness's
11 proposed 92 ter statement and supplemental information.
12 It is nothing new and was only an attempt to provide, if
13 necessary, any visual assistance to the Court about the matters raised in
14 the statement itself in so far as boundaries were discussed, and in so
15 far as particular locations, and some particular locations are, indeed,
16 mentioned where the witness travelled, are raised.
17 So nothing new was raised by those maps.
18 JUDGE ORIE: Could I ask you, because, of, course the Chamber has
19 not seen the maps, are these the kind of maps that were produced on the
20 basis of the 1991 census which we have seen in other cases and just gives
22 MR. TIEGER: Absolutely correct, Your Honour.
23 JUDGE ORIE: Yes. The Chamber will consider the matter.
24 --- Break taken at 9.28 a.m.
25 --- On resuming at 9.35 a.m.
1 JUDGE ORIE: The Chamber denies the objections based on lack of
2 relevance and impeachment of the own witness.
3 Mr. Tieger, at the same time, the mindset of those who
4 participated in the joint criminal enterprise in earlier stages is not of
5 vital importance. I mean, we should focus not on the background, so we
6 should avoid that what is naturally as a background should not become the
7 foreground. So, therefore, the Chamber is not interested to hear
8 evidence on everything that happened in Bosnia.
9 As far as impeachment is concerned, especially if you look at
10 paragraph 91, Mr. Kehoe very much stressed the first sentence of that
11 paragraph; and, of course, that paragraph says more than just what are
12 not the plans of Mr. Tudjman, who is in the indictment one of the
13 participants in the joint criminal enterprise.
14 Of course, he is not an accused in this case, but he is in the
15 indictment part of the joint criminal enterprise. So his development of
16 thoughts and what he later may have done, whether or not together with
17 the accused is still to be established, is not lacking all evidence.
18 Then, finally, the maps. The maps, the Chamber grants your
19 request to add them to the 65 ter list. At the same time, the Chamber
20 will consider what the relevance of those maps is when it comes to the
21 testimony and when these maps will be introduced through this witness.
22 As I said before, the Chamber had not seen the maps. Meanwhile,
23 we have looked at a copy, and it seems it is the ethnic composition of
25 case, this case which is I wouldn't say an entirely out of Bosnia
1 mean, they are close to the border. Things happened over there which
2 also have some or may have some bearing on this case, but the whole
3 ethnic map of Bosnia
4 So, the Chamber reserves its position in this respect until these
5 maps are tendered into evidence through this witness.
6 Any other matters at this moment? If not, then, first of all, I
7 see, Ms. Schildge, you're present in the courtroom. That is on the basis
8 of the decision and the request made. Ms. Schildge, perhaps, one
10 The Chamber decided last week on the basis of a letter presented
11 by the Gotovina Defence that the scope of the cross-examination would a
12 bit expanded if we compare it with the earlier decision. I see you're
13 nodding yes.
14 We have not considered one moment that this letter was not a true
15 letter from the US
16 this confidence. We granted the decision. And if that would be
17 otherwise, then, of course, we would like to hear from you. But from
18 your body language at this moment, it appears there is no problem in this
20 Then, Mr. Tieger, are you ready to call your next witness.
21 MR. TIEGER: Yes, Your Honour. Thank you.
22 The Prosecution calls Ambassador Peter Galbraith.
23 JUDGE ORIE: Meanwhile, I see that a corrigendum was filed on the
24 23rd of June in relation to the issue I raised earlier; that is, about
25 the issue of the submission dated 20th of June, and I might have been
1 mistaken when I said it was filed the 23rd of June. I haven't seen the
2 original registration page. I see now that at least the corrigendum was
3 filed on the 23rd.
4 [The witness entered court]
5 JUDGE ORIE: Good morning, Mr. Galbraith.
6 THE WITNESS: Good morning, Your Honour.
7 JUDGE ORIE: I invite you to put on your headphones, not because
8 you wouldn't understand the English language, but sometimes we get
9 messages from the interpreter's booth.
10 Mr. Galbraith, before you give evidence in this court, the Rules
11 of Procedure and Evidence require you to make a solemn declaration that
12 you will speak the truth, the whole truth, and nothing but the truth.
13 The usher now hands out the text of this solemn declaration, and
14 I ask to you make that solemn declaration.
15 THE WITNESS: I solemnly declare that I will speak the truth, the
16 whole truth, and nothing but the truth.
17 JUDGE ORIE: Thank you. Please be seated, Mr. Galbraith.
18 Mr. Galbraith, if I address you as "Mr. Galbraith," and not as
19 "Ambassador Galbraith," that is because I have developed a habit that
20 everyone who appears in this courtroom, irrespective of rank, position,
21 et cetera, is here just as a person. It has got nothing to do with
22 disrespect. Everyone does it the way he wants to do it.
23 Mr. Tieger, are you ready to examine the witness.
24 MR. TIEGER: Yes, Your Honour. Thank you.
25 JUDGE ORIE: You will be examined by Mr. Tieger who is counsel
1 for the Prosecution.
2 WITNESS: PETER GALBRAITH
3 Examination by Mr. Tieger:
4 MR. TIEGER:
5 Q. I will break that egalitarian tradition, as is common with
6 lawyers, and say good morning, Ambassador.
7 A. Good morning. You know how it is with titles. The title plus
8 two euros, I can ride the tram.
9 Q. Let me begin by, first of all, ask you to state your name for the
11 A. Peter Woodward Galbraith.
12 Q. I would like to provide the Court with some quick snapshot of
13 your background. If I may, I will just recite some of the highlights and
14 ask you to affirm those if I have stated them correctly.
15 You were educated at Harvard, Oxford, and Georgetown
16 universities, receiving a bachelor's degree from Harvard, a masters from
18 A. It is.
19 Q. Following that, you had a career as the senior advisor to the
20 United States Senate, foreign relations committee from 1979 to 1993?
21 A. Yes.
22 Q. During the latter period of your work as senior advisor, you had
23 a mandate to deal with the difficult locations in the world; and in the
24 course of that effort, paid four visits to the region of the former
1 A. Yes, that is correct.
2 Q. And as a result of that, you reported to the committee regarding
3 ethnic cleansing in Bosnia and Herzegovina?
4 A. Yes, that is correct.
5 Q. You were appointed as the United States ambassador to Croatia,
6 indeed, the first United States ambassador to the independent Republic of
8 A. Yes, that is correct.
9 Q. And just catching up very quickly, since that time, you have
10 taught for some years at the United States -- sorry?
11 A. Sorry. Did you say June of 1992? It would be June of 1993.
12 Q. Thank you for that. I may have misspoken. Thanks for that
14 You taught at the United States National War College
16 JUDGE ORIE: Mr. Tieger --
17 THE WITNESS: I did, although with a period in East Timor.
18 MR. TIEGER:
19 Q. And that work in East Timor
20 constitutional, and electoral affairs for the United Nations in East
22 interim government was formed. Is that right?
23 A. That is correct.
24 MR. TIEGER: Your Honour, if we could presented to the witness
25 65 ter 5206. Perhaps, I could ask -- well, I see the usher is well ahead
1 of me.
2 JUDGE ORIE: Yes. I take it there is no problem that the witness
3 has his statements in front of him.
4 MR. TIEGER:
5 Q. Ambassador, although the problem with the pace of speech has been
6 exclusively mine, I do want to remind you to pause between question and
7 answer to allow the interpreters to catch up, and I will also try to
8 deliberately speak closer to ease their task as well.
9 Ambassador, looking at this exhibit before you now, is this a
10 statement that you gave to the Office of the Prosecutor?
11 A. It is.
12 Q. Did you review this document before coming to court?
13 A. I did.
14 Q. Does it accurately reflect the information that you provided to
15 the Office of the Prosecutor?
16 A. It does.
17 Q. And is the information contained in that statement true and
18 correct, to the best of your knowledge?
19 A. It is, subject to the supplemental -- some corrections made in
20 the supplemental statement that I prepared in interviews with you.
21 Q. Thank you. And if you were asked about the same matters here in
22 Court today, subject to the caveat you have just mentioned, would the
23 information you provided be the same?
24 A. It would.
25 MR. TIEGER: Your Honour, I would also like to present the
1 supplemental information sheet to the witness, and that is 65 ter 5235.
2 Q. And, Mr. Ambassador, does this document contain the corrections
3 to your earlier statement that you mentioned, as well as supplemental
4 information concerning that statement?
5 A. Yes.
6 Q. Have you had a chance to review this document before coming to
8 A. Yes.
9 Q. Does it accurately reflect the information that you provided to
10 the Office of the Prosecutor?
11 A. Yes, it does.
12 Q. Is the information contained in that document true and correct,
13 to the best of your knowledge?
14 A. Yes, it is.
15 Q. And if you were asked about the same matters here in Court today,
16 would your answers be the same?
17 A. Yes, they would.
18 MR. TIEGER: Your Honour, I would tender both documents.
19 JUDGE ORIE: Mr. Kehoe.
20 MR. KEHOE: Yes, Your Honour.
21 My inquiry on the main statement of the witness is when it was
22 actually finalised. Obviously, this is not signed. I don't have a
23 signed copy. I don't think one was ever produced. It notes date of
24 interviews, but doesn't note any date of finalisation of this document.
25 JUDGE ORIE: The cover page, Mr. Tieger, says the 5th of
1 February. I think it was 22nd of February -- no. It say the 5th of
2 February, 2008
3 13 April 2007
4 date, which I find on the cover page.
5 MR. TIEGER: Yes, Your Honour. The finalisation, as it were,
6 occurred at or about the time of the date shown on the document itself.
7 The ambassador reviewed and approved the contents of the document
8 sometime relatively shortly before that. There was, indeed, a period of
9 time between - a significant period of time, indeed - between the date of
10 the last interview and the finalisation of the document; not through any
11 fault of the witness, simply because of the hope there would be an
12 additional opportunities to address issues. Then the imminence and the
13 trial date meant the document had to be finalised.
14 MR. KEHOE: My questioned was when it was formalised, Judge.
15 Normally - and I am not a stickler for procedure - but, normally, we have
16 a signature page to say that the witness signed off at a particular time.
17 That's all.
18 JUDGE ORIE: At the same time, I think the witness just testified
19 that this is the statement he gave. This replaces his signature, I would
21 MR. KEHOE: I understand that, Judge. I would just like to know
22 when was this document finalised. That's all. If, in fact, this is
23 after 13 April 2007
24 MR. TIEGER: Your Honour, I don't have the precise date. I
25 believe it was late January that the witness finalised, or sometime in
1 January, and then the additional aspects of clearance process kicked in.
2 JUDGE ORIE: And "finalising" means reviewing the text as written
3 down on paper, in view of what the witness said during his interview, and
4 then agreeing upon this being the text of his statement?
5 MR. TIEGER: Correct.
6 JUDGE ORIE: Yes.
7 MR. KEHOE: The only other issue, Judge, is reserving my
8 objections on the matter that we took prior to witness entering. I have
9 no objection. With regard to the supplemental statement, I can talk to
10 counsel about that, and it does include some of the matters that I had
11 raised prior to the witness coming in. Of course, we continue our
12 objection on that score. But absent those corrections, there are no
13 other objections, except those previously stated.
14 JUDGE ORIE: Yes. Thank you.
15 Other Defence teams?
16 Mr. Kuzmanovic.
17 MR. KUZMANOVIC: Your Honour, I take the same position as
18 Mr. Kehoe on the objections.
19 JUDGE ORIE: [Overlapping speakers] ... and no objections at this
20 moment against admission?
21 MR. KUZMANOVIC: That's correct, Your Honour.
22 JUDGE ORIE: Mr. Kay.
23 MR. KAY: No.
24 JUDGE ORIE: Yes. Same for all three Defence teams. So we're
25 talking about, first of all, the statement where we find the -- where we
1 find the 5th of February, 2008 on the cover page, and where we find dates
2 of interviews, 22nd of February and 13th of April, 2007.
3 That is 65 ter 5206, Mr. Tieger. The number does not appear on
4 our last list, but that is the one, I think, we're talking about.
5 Mr. Registrar, that will be number?
6 THE REGISTRAR: Exhibit P444, Your Honours.
7 JUDGE ORIE: P444 is admitted into evidence.
8 The additional statement, of which the Chamber received copy only
9 at 11 minutes past 9.00 this morning, we'll have a look at it. We
10 haven't seen it yet.
11 Any objections against or did your position include the
12 supplemental information sheet?
13 MR. KEHOE: My position included the other supplemental
14 information sheet.
15 JUDGE ORIE: I see other Defence counsel not objecting against
16 that position.
17 That is 65 ter 5235, Mr. Registrar, would be number?
18 THE REGISTRAR: Exhibit P445, Your Honours.
19 JUDGE ORIE: P445 is admitted into evidence.
20 You may proceed, Mr. Tieger.
21 MR. TIEGER: Thank you, Your Honour.
22 Your Honour, I'd like to try to deal with this as expeditiously
23 as possible with some of the exhibits. So my proposal would be as
24 follows: With respect to the exhibits that were discussed and referred
25 to the statement, those would include the following, and I will describe
1 them as I go through as well, in addition to P numbers: P5200, the US
2 embassy coded cable 07-0037; 65 ter 5201, US embassy coded cable
3 07-70-0079; 65 ter 4028, presidential transcript dated 7 August 1995; 65
4 ter 2222, presidential transcript dated 3 August 1995; 65 ter 650,
5 presidential transcript dated 18 August 1995; 65 ter 2814, electronic
6 intercept of RSK leadership dated 4 August 1995; and two excerpts from
7 the book entitled, "The United States and Croatia, A Documentary
8 History," dated 2 June 1994
9 that book is 65 ter 2575.
10 So I would ask that, in light of the admission of the statement,
11 that those documents be admitted.
12 JUDGE ORIE: Are there any objections?
13 MR. KEHOE: First matter, I think, Judge, is that I believe that
14 65 ter 4028 has already been admitted into evidence, D276 [sic].
15 JUDGE ORIE: Yes. It appears on my list as D296.
16 MR. KEHOE: The other matter on the excerpts from the book,
17 counsel just talked about two. The 65 ter list I have on the 2575 has,
18 in fact, six aspects to that. Is counsel only putting in the first two?
19 MR. TIEGER: I would be happy to have those all admitted. I was
20 just going through it sequentially. I think those are the two
21 specifically mentioned in the statement.
22 MR. KEHOE: Fine.
23 JUDGE ORIE: Yes. Nevertheless, I mean, you just mentioned the
24 dates of the 2nd of June and the 29th of June. Would you, at a later
25 stage, want to tender the other four items from the book as well?
1 Because, if so, we could immediately already ask the Defence whether
2 there is any objection.
3 MR. TIEGER: That is a great idea, Your Honour. I am pleased to
4 do so.
5 MR. KEHOE: With regard to the rest of that book, I think it is
6 best to put it in as one exhibit.
7 JUDGE ORIE: Yes. And that's true for the other Defence counsel
8 as well, I see. Yes.
9 Mr. Kehoe, and with the others?
10 MR. KEHOE: Yes. With regard to the other presidential
11 transcripts, Your Honour, we are researching some matters concerning
12 those transcripts. So, while we can proceed with the examination, if we
13 just reserve on admission for seven days, so we can take a look at those
14 yet further, we can tell the Court our conclusions next Monday -- our
15 position next Monday, excuse me.
16 JUDGE ORIE: Yes. Mr. Tieger, I do not know to what extent it
17 will bother you if with he have no designation yet on the presidential
18 transcript, which apparently we have, as a matter of fact, two
19 presidential transcripts, Mr. Kehoe. That is 65 ter 2222 -- no. The
20 other one is not tendered, 29 October 1993
21 You didn't mention that one, Mr. Tieger, did you?
22 MR. TIEGER: Perhaps not. I'm sorry, Your Honour. That would be
23 65 ter 816.
24 JUDGE ORIE: Yes. I do not remember that you mentioned it, or am
25 I wrong? He did. No. At least my staff supports me, which is always
2 MR. TIEGER: Okay. In keeping with the Court's suggestion in
3 connection with the book excerpts, I will also be wanting to tender other
4 listed presidential transcripts, which were meetings that were taped and
5 transcribed in which the witness was a participant, I could go through
6 the formalities, but I don't think there is any dispute about that, the
7 fact that he was a participant; and for that reason, I would be tendering
8 those, and I can enumerate those. The one expectation is the transcript
9 of 11 August, where there is reference to the meeting of the previous day
10 which the witness attended.
11 JUDGE ORIE: Yes. Then the other presidential transcripts, I
12 have got on my list is 816, and I'm referring to the 65 ter numbers. You
13 want to tender that as well, Mr. Tieger, then?
14 MR. TIEGER: 816, Your Honour, is the one you just mentioned
15 previously --
16 JUDGE ORIE: [Overlapping speakers] ... I have another one,
17 3347 --
18 MR. TIEGER: Correct.
19 JUDGE ORIE: -- and 2368. You want to tender now all four of
20 these presidential transcripts?
21 MR. TIEGER: And 4053, Your Honour.
22 JUDGE ORIE: 4053, which is I think -- yes. 4053 that is not
23 described as presidential transcript, but the minutes from the meeting
24 held the 10th of August.
25 MR. TIEGER: Yes. It is the same category of documents, just a
1 different named, I see. And the final one is again the same, but also
2 described as minutes of the meeting, and that's from 11 August.
3 JUDGE ORIE: Yes. Now, in view of the earlier series, Mr. Kehoe,
4 we have 816, which was not mentioned previously by Mr. Tieger; we have
5 4053, minutes, 10th of August; we have 40634, minutes of the meeting,
6 11th August; we have 3347, presidential transcript, and apparently it's
7 about the 16th of August, 1995; and 2368, which is a presidential
8 transcript of the 14th of September, 1995.
9 Any objection?
10 MR. TIEGER: Your Honour, sorry. One more, and I apologise.
11 JUDGE ORIE: One more.
12 MR. TIEGER: I would like to add 65 ter --
13 JUDGE ORIE: [Overlapping speakers] ... the list gets longer and
14 longer, Mr. Tieger --
15 MR. TIEGER: 65 ter 4474, presidential transcript dated
16 January 17th, 1995
17 JUDGE ORIE: And is that one that was added?
18 MR. TIEGER: That, I believe, was provided to the Defence, and I
19 hope copied to the Chamber at the same time as the others.
20 JUDGE ORIE: We received not copies yet, but at least that you --
21 MR. TIEGER: I'm sorry --
22 JUDGE ORIE: -- that you may use that document.
23 MR. TIEGER: The problem may be, I see, the document description
24 has it as July 17th, rather than January 17th. The ERN is the same, the
25 65 ter number is the same.
1 JUDGE ORIE: And is it July or January now?
2 MR. TIEGER: It is January.
3 JUDGE ORIE: It's January. So that is a mistake in your -- a
4 mistake in your e-mail of the 18th of June, 1.36 p.m.
5 Mr. Kehoe, we have now added to the previous list 816, 4053,
6 4064, 3347, 2368, and 4476 --
7 MR. KEHOE: I believe that's 4474, Judge.
8 JUDGE ORIE: 4474. Yes, I made a mistake there. And, as a
9 matter of fact, I think, Mr. Tieger made a mistake because on the
10 transcript, and that's corresponds with what I wrote down, is 4476.
11 You told me 4474, Mr. Tieger.
12 MR. TIEGER: It should, Your Honour.
13 JUDGE ORIE: Yes. Then the last one is 4474.
14 Mr. Galbraith, it looks as if we are bookkeepers, but we have to
15 get the record straight.
16 Any objection?
17 MR. KEHOE: Your Honour, if I can just reserve consistent with my
18 prior objection, to look at some matters concerning these particular
19 exhibits, and I will report back to the Chamber. I don't think it will
20 hold up the actual examination. If we can MFI these individual
21 transcripts, we will be able to move forward, and I will get back to you,
22 Your Honour, with regard to our position as expeditiously as possible.
23 JUDGE ORIE: Yes. Sometimes we admit it in the absence of a
24 clear objection, a substantive objection, and then we are willing to
25 review our decision, if it comes down that. It comes down to
1 approximately the same. Since the Chamber would like have to have the
2 MFI list as short as possible, we might choose, for practical reasons,
3 the solution to admit and to review, if there is any need to do so.
4 MR. KEHOE: The Defence has some authentication issues that we
5 are researching in the spirit of full candor, but that is exactly --
6 JUDGE ORIE: That is on the record. And, of course, admission is
7 on the basis of the lack of any authentication issues at this moment.
8 [Trial Chamber and registrar confer]
9 JUDGE ORIE: Mr. Registrar will read out the numbers under which
10 the documents for which, apart from the reservation just expressed by
11 Mr. Kehoe, there are no objections under what numbers they are admitted
12 into evidence.
13 Mr. Registrar.
14 THE REGISTRAR: Your Honours, 65 ter 5200 becomes Exhibit P446;
15 65 ter number 5201 becomes Exhibit P447; 65 ter number 2222 becomes
16 Exhibit P448; 65 ter number 650 becomes Exhibit P449; 65 ter number 2814
17 becomes Exhibit number P450; 65 ter number 2575 becomes Exhibit
18 number P451; 65 ter number 816 becomes Exhibit number P452; 65 ter number
19 3347 becomes Exhibit number P453; 65 ter 2368 becomes Exhibit number
20 P454. 65 ter number 4053 becomes Exhibit number P455; 65 ter number 4064
21 becomes Exhibit number P456; and 65 ter number 4474 becomes Exhibit
22 number P457.
23 JUDGE ORIE: All these exhibits are admitted into evidence. I
24 add to that, in relation to P451, it's the full set of six excerpts from
25 the book.
1 Mr. Tieger, you may proceed.
2 MR. TIEGER: Thank you, Your Honour.
3 Before I do, I'm not entirely clear on the nature of the Defence
4 objection or the extent of the need to -- to delve with the witness into
5 those documents. As mentioned, with the exception of the August 11th
6 transcript, those are meetings attended by the witness which the witness
7 has had an opportunity to review and reflect the subjects discussed.
8 Perhaps, I can talk with the -- with my learned friends at the break and
9 see the extent it may be necessary to get into that with the witness. I
10 certainly don't want to have to call him back once any objection is
12 JUDGE ORIE: I think, as a matter of fact, the problem is if the
13 Defence is still exploring what may be the problems, then, of course, it
14 is difficult at this moment to explain exactly what it is, apart from
15 what they have in mind at this very moment.
16 If there is anything, Mr. Kehoe, that could assist the Chamber
17 and that could be introduced through the witness, of course, we should
18 not waist the opportunity to do so.
19 MR. KEHOE: Yes, Your Honour. I don't think it is going to
20 forestall the examination of the ambassador at this juncture. I will
21 consult with Mr. Tieger at the break and let him know the parameters of
22 any concerns that the Defence might have.
23 JUDGE ORIE: Yes, that's appreciated.
24 Please proceed.
25 MR. TIEGER: Thank you, Your Honour.
1 At this point, I'd like to read a summary of the witness's
2 evidence pursuant to Court practice.
3 JUDGE ORIE: Mr. Galbraith, we usually read summaries of written
4 statements just in order to make the public aware of what we are talking
6 Please proceed.
7 MR. TIEGER: Peter Galbraith was the United States ambassador to
9 extensive contacts with members of the Croatian leadership, Krajina Serb
10 leadership, international representatives, and others dealing with the
12 Ambassador Galbraith was active in attempting to broker a
13 peaceful settlement between Croatia
14 Z-4 plan. As Operation Storm became imminent, he met with
15 President Tudjman on 1 August 1995
16 care in protecting Serb civilians and UN personnel if an attack was
18 On the 2nd of August, Ambassador Galbraith met with Milan Babic
19 to convince him to accept terms for peace. Babic agreed to conditions.
20 And on the 3rd of August, as negotiations in Geneva were taking place,
21 Ambassador Galbraith met with President Tudjman to explain his meeting
22 with Babic and the opportunity for a peaceful solution.
23 President Tudjman --
24 JUDGE ORIE: No, no, Mr. Tieger.
25 You may proceed.
1 MR. TIEGER: President Tudjman expressed skepticism that Babic
2 could deliver, and it was clear to Ambassador Galbraith that the attack
3 would go forward.
4 During the course of his work, Ambassador Galbraith had regular
5 and extensive contact with President Tudjman and other Croatian leaders,
6 and learned of their attitudes and positions regarding the presence of
7 Serbs in Croatia
8 ethnically homogeneous or close to it.
9 He believed and stated that the Serbs in Croatia, and
10 particularly the Krajina, were too numerous and constituted a strategic
11 threat to Croatia
12 homogeneous states or areas. President Tudjman also had racist views
13 towards Muslims. President Tudjman considered that his arguments about
14 Serbs and Muslims were irresistible, and he, therefore, did not need to
15 mask these views.
16 After Operation Storm, President Tudjman explained --
17 JUDGE ORIE: No, no, Mr. Tieger.
18 MR. TIEGER: President Tudjman explained clearly to Ambassador
19 Galbraith that the Serbs that had left should not come back. Measures
20 were imposed to ensure that the Serbs would not, in fact, return,
21 including laws confiscating property and preventing people from returning
22 after giving them only 30 days to do so. Although that deadline was
23 extended under pressure, means were imposed to prevent Serbs from meeting
24 those deadlines and making it impossible to reclaim property. Meanwhile,
25 a large part of Serb property was being systematically destroyed by
1 Croatian armed forces and others.
2 Ambassador Galbraith received information from many sources about
3 the crimes and about the extensive and systematic destruction of Serb
4 property and about widespread killings. His own observations were
5 consistent with those reports. Ambassador Galbraith assessed that such
6 destruction could not have taken place without the orders, approval, or
7 acquiescence of Croatian leadership. He constantly raised with Croatian
8 leaders the issue of crimes against Serbs and Serb property, and the
9 obstacles imposed against Serb return.
10 In response, there was first stonewalling and denial, and then
11 grudging acknowledgment or deflections, such as asserting that Croat
12 civilians returning to the area were doing it and that it was outside the
13 control of the officials. Although pressure by the international
14 community over time had some positive effect over the time, particularly
15 on the right of return and the destruction diminished, by the end almost
16 all had listen looted and/or destroyed.
17 That concludes the summary, Your Honour.
18 JUDGE ORIE: Just because it might be important, page 29, line 7
19 it could be that on the French transcript the fact that the killing was
20 widespread is missing. Just for the preparation of the transcript.
21 Mr. Tieger, please proceed.
22 MR. KEHOE: If I may, Your Honour. I don't normally object to
23 the summary of counsel, but, of course, I do in this sense, in the sense
24 that it is being given to the public as it doesn't accurately reflect the
25 scope of the Ambassador's testimony concerning Operation Storm.
1 JUDGE ORIE: Mr. Kehoe, I do understand that. I suggest the
2 following procedure: You inform Mr. Tieger during the break in what
3 respect you disagree with the summary. We see whether Mr. Tieger agrees
4 with you, yes or no. Either you come up with a joint proposal to -- to
5 amend the summary, or you just inform the Chamber in what respect you
6 disagree and preferably in writing. It can be do done in an incidentally
7 formal way. We all know that the summary is not evidence, but,
8 nevertheless, I fully agree with you that public should be properly
10 Please proceed.
11 MR. TIEGER: Thank you, Your Honour.
12 Q. Ambassador, welcome back.
13 We've indicated already that you began your term as ambassador in
14 June of 1993. Can I ask you, then, to describe to the Court the
15 prevailing conditions at that time and their impact on your focus of
16 activities and your priorities?
17 A. The war in the former Yugoslavia
18 29 per cent of the territory of the Republic of Croatia
19 rebel Serbs who were backed by Serbia
20 was a three-way war between the Bosnian Serbs, the Bosnian government,
21 and the HVO. There were hundreds of thousands of refugees in Croatia
22 perhaps six or 700.000, who had passed through Croatia; and the
23 international community, including my own government, were frankly
24 despairing as to what might be done about this situation.
25 I arrived as the first ambassador actually in circumstances where
1 the United States was on the verge of not sending an ambassador to
2 protest what Croatia
3 support for the HVO which was fighting and committing atrocities against
4 the troops -- against the Bosnian Muslims and the Bosnian government.
5 And so my initial focus -- well, the first point I would say is
6 that I realised that there was going to be no solution to this conflict,
7 unless we could end the fighting between the Muslims and the Croats in
9 before we could end the fighting, we had to end the atrocities. And, so,
10 in the summer of 1993, I worked with Croatian officials to get Bosnian
11 prisoners released from camps where they were being held in inhumane
12 conditions, to try and stop the shelling of Mostar, and to reduce the
13 level of atrocities.
14 In 1994, the focus -- or in late 1993/1994, the focus shifted to
15 try and arrange a peace agreement between the Bosnian government and the
16 Bosnian Croats; and we succeeded at the end of February, beginning of
17 March of 1994, when we concluded the Washington agreement that created
18 the federation of Bosnia and Herzegovina and which immediately and
19 successfully ended the Muslim-Croat war.
20 At that point, at the request of President Tudjman, I turned my
21 attention to negotiations with -- between Zagreb and rebel Serbs in Knin,
22 to try and find a political settlement in Croatia. Those negotiations
23 had been ongoing under the auspices of the United Nations. The Russians
24 got involved, and Tudjman wanted the Americans to be involved.
25 I eventually formed a group with the United Nations, the
1 Russians, and the European Union. It became known as Zagreb 4, or Z-4,
2 and we sponsored a three part process to try to find a peaceful
3 settlement in Croatia
4 negotiated in March of 1994. That was followed by agreement on economic
5 and confidence building measures in December of 1994. And parallel to
6 the economic and confidence building measures, we worked up a political
7 plan, which became known as the Z-4 plan, that would have provided for
8 very substantial autonomy for the Krajina Serbs within the
9 internationally recognised borders of Croatia.
10 That plan was presented to the parties, not only as a document to
11 be negotiated about, not on a take it or leave it basis, that was
12 presented in January of 1995. President Tudjman very reluctantly
13 accepted it and agreed to negotiate on it, but the leader of the Krajina
14 Serbs, Milan Martic, refused to touch the document. He refused to
15 receive it. And at that point, the negotiations between the two sides
16 broke down, as it turned out, irretrievably; although, I made efforts to
17 try and get them started again.
18 In the summer, or in May to July of 1995, things began really to
19 fall apart. UN peacekeepers were taken in hostage; then and in July came
20 the attacks on the enclaves of Srebrenica and Zepa, which fell; and then
21 an attack on Bihac, which was carried out both by the Bosnian Serb army
22 and by the army of the Republika Srpska Krajina, that is, the rebel
24 And at that point, the Croatian government took the decision
25 that -- that this was the opportune time to move militarily to recover
1 Croatian territory, and a series of events - I could describe in more
2 detail - but a series of events set in motion which led to Operation
4 Q. And just a small possible correction Ambassador.
5 At line 32-- sorry, page 32, lines 20 to 21, you referred to the
6 rebel Croats, and I take it that you meant rebel Serb army? Actually, it
7 said "carried out by both the Bosnian Serb army and the army of the
8 Republika Srpska, that is, the rebel Croats."
9 A. I, of course, meant rebel Serbs; as we saw them, rebel Serbs, who
10 were, in fact, citizens of the Republic of Croatia
11 Q. Now, do you recall when you first learned of plans by the
12 Republic of Croatia
14 And in that connection, perhaps I can refer you to another
15 document that is on the exhibit list, and that is 65 ter 5231.
16 MR. TIEGER: It is Ambassador Galbraith's diplomatic diary, and
17 can that be presented on screen.
18 Q. Ambassador, for your benefit, I think that is the third tab in
19 your binder. You may have already found it.
20 A. I have found it.
21 Q. Ambassador, that indicates diary enters from June to
22 November 1995. I take it you're familiar with this document.
23 When were the entries in this document prepared or recorded?
24 A. Generally, on a daily basis; that is, either the evening of the
25 day or the day after the events described, but sometimes more time would
1 have elapsed because I would have been out of town or perhaps too busy to
2 have recorded for an individual day. So sometimes it would have been
3 several days at a time.
4 Q. Can I ask to you turn to page 20 of that document, please,
5 looking at the entry for July 24th.
6 A. Yes.
7 Q. It indicates in the first sentence: "War appears imminent. The
8 Croatian plan to move tomorrow at 4.00 a.m. on Bosanska Grahovo. The
9 Serbs have artillery in Sector South and plan to retaliate by shelling
10 Croatian coastal cities. The Croatian plan would then to take a sharp
11 left at Gravoho, and move on to Knin."
12 Again, that is page 20 of that document.
13 Ambassador -- Ambassador, was this around the time that you
14 learned that there was a plan for an operation into the Krajina, or do
15 you recall whether you were aware of that at that time?
16 A. I was aware of that prior to that time. I think the date the day
17 I became -- well, I was first told that there was going to be an
18 operation was the day that I took the defence attache, Colonel Rick
19 Herrick, over for his farewell call with Defence Minister Gojko Susak and
20 his replacement, Colonel John Sadler. And at that time, either at that
21 meeting or at a lunch at the Intercon in Zagreb, Susak told me of the
22 plans for a military attack on the Krajina.
23 MR. KEHOE: Your Honour, if we can just sharpen this date, I
24 think the diary reflects June 10th on page 12, second paragraph.
25 THE WITNESS: Let me clarify.
1 I knew substantially before June 10th, and this is reflected in
2 lots of documents, that it was Tudjman's plan in 1994 to take the Krajina
3 militarily. As is true for the entry on this date, we believed that he
4 would do this when the United Nations mandate ran out November 30th. The
5 reason being that that would be a time of the year when it would be very
6 difficult for weather reasons for Serbia to resupply the Krajina, but
7 where it would be still relatively easy for Croatian forces to attack up
8 from the coast and where it wouldn't do any damage to the Croatian
9 tourist season.
10 It was later in July, because of what happened in Srebrenica and
11 Zepa and because of the Bihac crisis, that these plans were advanced to
12 take advantage of the -- well, for two reasons: First, to save Bihac.
13 The last things that the Croatians wanted was for Bihac to fall, and then
14 you would have a single western Serb entity, Krajina and Bosnia
15 would also have 160.000 people who would be going to Croatia as refugees.
16 And I have to tell, although I am sure this will come up in the further
17 testimony, it was the last thing that the United States wanted to see
19 But the decision to do it in July was not -- Croatia did not
20 advance the date of this operation until after Srebrenica and until the
21 Bihac crisis. And, so, I believe that I was told a very short period of
22 time after Croatia
23 made the final decision, well, if you look at the transcript, even up
24 until the day before; but it was around the 20th of July that they made
25 the initial decision that this was the time to do it.
1 MR. TIEGER: And, Your Honour, I note the time. If the Court
2 does intend to journey, before we do so I wanted to clarify for the
3 registrar, who I think had an inquiry of the page numbers of the portion
4 of the diary just referred to by counsel, and perhaps even the previous
5 page number. I believe that was a reference to the entry of June 10,
6 which appears on -- the relevant portion which appears on page 12 of the
8 JUDGE ORIE: I found it, yes. Page 12, second paragraph,
9 concerning June 10th.
10 Now, this document is not in evidence. Is there any intention to
11 tender it?
12 MR. TIEGER: Yes, there is, Your Honour.
13 JUDGE ORIE: Yes.
14 MR. KEHOE: No objection, Your Honour.
15 JUDGE ORIE: No objection. I hear no objection from other
16 Defence teams.
17 Then the diary entries of June-November 1995 of the witness,
18 Mr. Registrar.
19 THE REGISTRAR: That becomes Exhibit number P458.
20 JUDGE ORIE: P458 is admitted into evidence.
21 Mr. Tieger, I think we should take a break now.
22 Mr. Galbraith, we will have a break now of 25 minutes. We resume
23 at 11.00.
24 --- Recess taken at 10.37 a.m.
25 --- On resuming at 11.13 a.m.
1 JUDGE ORIE: Mr. Tieger, please proceed.
2 MR. TIEGER: Thank you, Your Honour.
3 Before I begin, I'd like to indicate to the Court that it appears
4 that one of the pages of the diplomatic diary was not copied in e-court,
5 and that's the page that is marked on the diary, 29, which appeared --
6 which would have appeared between page 22 and page 23 of the e-court
7 version. The pages marked in the diary don't correspond precisely to
9 JUDGE ORIE: And, apparently, the hard copy that was sent has the
10 same problem.
11 MR. TIEGER: Okay. I have copies here. Fortunately, I know that
12 I checked with Mr. Kehoe, he does have that page in the copy of the diary
13 he has. But if other counsel need a copy or for the benefit of the
14 Court, I have copies of that particular missing page now.
15 JUDGE ORIE: Yes. If you have it, that saves us from printing
17 Mr. Kehoe.
18 MR. KEHOE: Yes, Your Honour, I do have that. My issue is on a
19 different subject that I did address with Mr. Tieger concerning the
20 transcript, and just --
21 JUDGE ORIE: This seems not to deal with authenticity, but rather
22 by error.
23 MR. KEHOE: Yes. The authenticity issue we will address yet
24 further after I get some additional information.
25 But by way of clarity, Your Honour, on page 34, line 19, I
1 believe there is some concern about the date on that line, and the year.
2 I may have misheard the witness, but --
3 MR. TIEGER: Your Honour, I'm not at all sure that that is an
4 error, but I would be happy to clarify it with the witness. I think that
5 is the best way to do it.
6 JUDGE ORIE: Yes. That's the best way to do it; otherwise,
7 Mr. Kehoe still has an opportunity in cross-examination to deal with the
9 Please proceed.
10 MR. TIEGER:
11 Q. As long as it was raised, Mr. Ambassador, let me take to you the
12 portion of the transcript. As indicated, that was page 34. The question
13 was -- you are attempting to sharpen the date. When you first learn that
14 there would be a military operation to retake the Krajina, you said
15 beginning at line 17: "Let me clarify. I knew substantially before
16 June 10, and this is reflected in lots of documents, that it was
17 Tudjman's plan in 1994 to take the Krajina militarily."
18 And you went on: "As is true for the entry on this date, we
19 believe that they would do so -- do this when the United Nations mandate
20 ran out November 30th," and then it goes on.
21 So the question is, Ambassador: Did you mean 1994 or some other
23 A. Thank you. I meant 1995; that is, that the UN mandate ran from
24 March - it was eight months - I think from March until the end of
25 November. It was at that point, in 1995, that Tudjman's plan was to take
1 the Krajina.
2 As long as we're on this subject, I realise I made another point
3 that merits clarification on exactly this issue.
4 It was on the 21st of July that I went down to Brioni - this is
5 1995 - for a dinner with President Demirel. And at that dinner, Susak,
6 the defence minister, told me that they would have a military operation.
7 It was later, I think July 22nd, looking at the diary, that I had the
8 lunch that I referred to with Colonel Herrick and Colonel Sadler. And on
9 that occasion, Susak gave us the date. But it would have been on the
10 21st that he had first indicated to me, and it was also clear from what
11 Tudjman was saying that Tudjman had made a decision that they were going
12 to go ahead with a military operation -- or very likely to go ahead with
13 a military operation in connection with the Bihac crisis.
14 Q. Thank you, Ambassador.
15 Now, in connection with the Bihac crisis, that's also mentioned
16 in your statement, I think at paragraphs 19 -- that's 92 ter statement,
17 P444, at paragraphs 19 and 20, in which you indicate that: "During the
18 same period, the threat to Bihac lessened in the face of Serb
19 withdrawal," at paragraph 19. And then in paragraph 20: "Now we move
20 again to start again the peace progress. There was a hierarchy of evil."
21 Can you describe to the Court, quickly, the reduction of the
22 threat to Bihac and the efforts in connection with the peace process that
24 A. Yes. Basically, what happened was you had on the 13th of July,
25 the fall of Srebrenica; then the disappearance and massacre of
1 20 per cent of the population, the men and boys; then you had the fall of
2 Zepa around the 26th of July, but the attack on it had been going on for
3 some time; and in around the 20th or 17th, or something, of July, the
4 attack on Bihac.
5 So, as we saw it, there was a concerted effort on the part of the
6 Bosnian Serbs, and in the case of the Bihac joined by the Croatian Serbs,
7 to wipe these enclaves off the map. And we believe, given what they had
8 done in Srebrenica, that there was a very good chance that they would do
9 the same thing in Zepa and in Bihac.
10 That is why we were very sympathetic to the Croatian military
11 offensive that went up the Livno valley that put pressure on the Serbs,
12 and, indeed, why we did not object to military action that would have
13 come through the Krajina to relieve the siege of Bihac. But precisely
14 because the Croatian military actions were having a significant impact on
15 the Serbs, the prospect of Bihac falling had, by the very end of July,
16 began to recede. And at that point, I believed that there was an
17 opportunity to -- for a negotiated settlement.
18 I wasn't at all sure that there would be a negotiated settlement
19 that would actually work, but that there was an opportunity and that we
20 should take advantage of this opportunity. That then explains why, at
21 the very final hours, I went to Belgrade
22 might have headed off Operation Storm.
23 Q. And your statement -- your statement indicates , at paragraph 22,
24 and again that's P444, at paragraph 22, that you met with
25 President Tudjman on the 1st of August; and, I believe, in addition your
1 diplomatic diary, at the page marked 28, which I think is page 22 in
2 e-court, also addresses that meeting.
3 During the course of that meeting with President Tudjman,
4 Ambassador, did you outline the proposal to move the peace process
5 forward, and did you also address US
6 and the US
7 A. Yes.
8 Q. And does your -- does your diary and your statement indicate the
9 position outlined by you, on behalf of the US, in connection with the
10 possibility of a military operation?
11 A. Yes, it does.
12 Q. And those were?
13 A. Well, first, that the United States was committed to a peaceful
14 solution to the Krajina problem, and that nothing that we said should be
15 construed as a green light to military operation.
16 Second, and we put great emphasis on this, that if there is a
17 military operation, that Serb civilians will have to be protected; that
18 POWs will have to be well treated; and that any repeat of the atrocities
19 that had occurred in the Medak Pocket in 1993 would have very series
20 consequences for US/Croatian relations. If there were atrocities, that
21 would very much affect our relationship in a negative, do great damage to
22 our relationship with Croatia
23 Third, if Croatia
24 do so alone. It could not expect any help from the United States if
25 things did not go as expected.
1 And, fourth, that the safety of UN peacekeepers was paramount,
2 and that Croatia
3 peacekeepers and other personnel at risk.
4 Q. Now, in paragraph 23 of P444, you explained the reasons why
5 warnings were issued about the need to protect Serb civilians.
6 You say: "I issued the warnings about the need to protect
7 Serbian civilians because there were a number of reasons to be worried
8 that persecutions of civilians were likely. I knew that
9 President Tudjman saw Serbs as a threat and wanted an ethnically
10 homogeneous Croatia
11 in previous Croatian military operations such as Medak Pocket and Flash."
12 Then you go on to indicate that your concern was reflected in a
13 statement later.
14 Does that paragraph accurately state the reasons why the warnings
15 about the need or US
17 A. Yes, it does.
18 Q. Now, in the meeting on August 1st, did President Tudjman outline
19 for you the conditions, Croatia
20 in anticipation of your meeting with Milan Babic?
21 A. He outlined the conditions for a peaceful resolution, which are
22 contained in the diplomatic diary; that is, the immediate withdrawal from
23 Bihac, the opening of the oil pipeline through Sector North, immediate
24 negotiations to reopen the Zagreb-Split railroad, and immediate
25 negotiations for the political reintegration of the Krajina into Croatia
1 At that time, these were his conditions and these were being
2 presented as an ultimatum at a meeting to be held August 3rd in Geneva
3 under the sponsorship the ICVY, the International Conference on the
4 former Yugoslavia
5 At that time, then I told him that Babic was interested in seeing
6 me, and he said, "Well, that would be interesting." I think Babic had
7 proposed a date of Thursday or Friday, and he said, "Don't wait until
8 then; do it sooner." But these points were not in connection with my
9 meeting with Babic, these were simply the Croatian ultimatum, and the
10 focus really was on that August 3rd meeting.
11 Q. And did you meet with Milan Babic thereafter?
12 A. I met with him on the 2nd of August in Belgrade.
13 Q. Okay. With what result? Did you outline the conditions that had
14 presented to you, and what was the response?
15 A. I painted -- I began the meeting by painting the starkest picture
16 of what was likely to happen, and I put the blame very squarely on the
17 Krajina Serbs who had done two things: First, they had crossed the
18 international border into Bihac; and, second, they had refused to
19 negotiate on the basis of a proposal that was with put forward by the
20 United States, Russia
21 is, basically, the most powerful institutions in the world, at least with
22 regard to that part of the world.
23 Then I outlined to him the Croatian conditions, and his response
24 was very interesting. I expected him to argue, but he didn't. He said:
25 "I understand completely why the Croatians are about to attack us. I
1 cannot understand why our leaders have behaved as they -- they do." He
2 said that he accepted Tudjman's ultimatum, all the points. He said,
3 "Except, I have difficulty in publically saying that I will accept
4 negotiations for the reintegration of the Krajina into Croatia
5 And, so, I said to him, "Well, I thought about that, and what I
6 think you can do is publicly announce that you will accept negotiations
7 on the basis of the Z-4 plan, because the Z-4 plan is a plan for the
8 reintegration of Krajina into Croatia
9 privately that you understand you will never get the level of autonomy
10 that was discussed in the Z-4 plan. What might have been possible in
11 January of 1995 is not possible in August of 1995." He said he
12 understood that.
13 Q. Ambassador, I may have been remiss in not asking you earlier to
14 indicate to the Court who Milan Babic was, why you were dealing with him,
15 and -- well, I think it is clear.
16 A. Milan Babic was the prime minister of the so-called Republika
17 Srpska Krajina; that is, the rebel Serb entity. He also headed the
18 political party that had the most popular support in the Krajina. That
19 was a majority in the parliament. He was, however, a political opponent
20 Milan Martic, the president, who controlled the military and, therefore,
21 exercised substantially more power than Babic.
22 Q. Your supplemental statement, I believe -- supplemental
23 information sheet, excuse me. That is P445, and I believe it indicates,
24 at paragraph 18, your review of the transcript of August 3.
25 MR. TIEGER: And, Your Honours, I should indicate that the
1 ambassador in an opportunity to see a revised transcript that conforms to
2 an issue raised during the opening statement, and contains the
3 translation, a revised translation, of the B/C/S transcript.
4 Q. And, as indicated in P445, Ambassador, that indicates that as you
5 were relating to -- and I should indicate for your benefit and the Court,
6 this is a transcript of a meeting with President Tudjman, in which you
7 related your discussion with Milan Babic. You.
8 Are quoted there as saying: "As we know very well, that many
9 Serbs living there would leave, probably the majority of them.
10 Do you recall indicating that to President Tudjman and to Milan
11 Babic earlier; and if so, can you explain why you said to Babic that many
12 Serbs, probably the majority of them would leave? And as I indicated,
13 that is addressed at page 18 of P445, the supplemental information sheet.
14 A. Yes. The point I was trying to make to Babic is that if the
15 Krajina Serb population was gone, there would never be a political
16 settlement for them, and so they were much better off to accept a deal
17 with Croatia
18 to have the marry solved militarily and then to have the entire
19 population leave.
20 Now, why did I say to him, to Babic, that I thought the entire
21 population would leave? Well, because through the entire conflict in the
22 former Yugoslavia
23 expelled; because when Croatia
24 of 1995, just a few months before, 10.000 of the 13.000 Serbs left there;
25 because of Croatia
1 Medak Pocket, had involved atrocities. So I knew the population would
2 have a well-founded fear of what might happen.
3 I knew Tudjman's own statements and view that the Krajina Serbs
4 were a strategic threat to Croatia
5 propaganda about how the Croatians were basically born-again Ustashi,
6 World War II fascist, who repeat all atrocities of the Ustashi. So it
7 was the combination of all those things that led me to say to Babic that
8 the Serb would say leave. But Babic was -- I didn't have to persuade him
9 of this. He understood completely that this was going to happen.
10 Then with Tudjman, on the 3rd of August, I was simply recounting
11 to him the -- the entirety of my conversation with Babic, so he would
12 understand how we had gotten this deal in which Babic had, in my view,
13 accepted Tudjman's ultimatum.
14 Q. You mentioned your meeting with President Tudjman following your
15 discussion with Milan Babic. How did you present the situation as it
16 existed at that time to President Tudjman, and what was his reaction?
17 I believe that is found in or you address those issues to some
18 extent at paragraph 26 of your statement, and pages 31 through 32 of your
19 diary as marked on the diary page, which I believe would be page 24 of
20 the e-court version, the August 3rd meeting.
21 A. My basic -- I mean, of course, the words are reflected in the
22 diary and, as you know, in the transcript. But my basic message was that
23 Babic had accepted Tudjman's ultimatum, that we could not know whether
24 Babic was going to be able to deliver the Krajina Serb leadership, but
25 that it was worth taking a little bit of time to find out if he would.
1 That was -- that basically is what I was trying to persuade
2 Tudjman of. I just described my own negotiations, and I also delivered a
3 demarche on behalf of the United States.
4 It was clear to me -- I think I saw Tudjman at 5.45. It was
5 clear to me that what I was saying was falling on deaf ears. He was -- I
6 believed he had already made the decision to go to war. It was
7 interesting for me, then, to read the transcript of the subsequent
8 national security meeting that began at 6.00, where the issue was
9 actually debated and they did give considerable -- they did give
10 consideration to the American demarche and what I had to say.
11 But, certainly, the impression I had at that meeting was that the
12 issue was settled.
13 Q. And did you -- subsequently, did you in connection with that
14 issue hold a press conference - I believe that is addressed at pages 208
15 through 210 of the book, "The United States and Croatia: A Documentary
16 History" - about the opportunity presented as a result of your
17 discussions with Babic?
18 A. I felt we should do everything possible for peace. So,
19 typically, when I would go see, Tudjman - or frequently anyhow - the
20 press would be gathered out the presidential office. I actually had our
21 public affairs officer make sure that they were there. So I then issued
22 a statement, saying that Babic had meet Tudjman's -- it was wasn't a
23 statement. I gave remarks that Babic had met the terms of Croatia
24 ultimatum; and that, in my view, there was no reason for a war. I didn't
25 say there wouldn't be a war, although that was a bit misinterpreted. I
1 simply said that there was no reason for way.
2 I also felt, as a moral matter, that I owed it to Babic who had
3 made this commitments to state publicly that the United States stood
4 behind them, and that we hoped there would be an opportunity for peace.
5 Q. Now, Ambassador, you referred, both in connection with the
6 reasons why you issued the warnings to President Tudjman about Serb
7 civilians and I believe earlier in your testimony, to President Tudjman's
8 views of the presence of Serbs in Croatia.
9 Let me ask you, as a preliminary matter, how frequently and
10 regularly you met with President Tudjman during the -- your term as
12 A. In the first two and a half years, I met with him very
13 frequently; I would say several times a week, on some occasions several
14 times a day. Not all these would have been meetings at his office. We
15 would have met in other places. I went down; and when he vacationed in
16 Brioni, I went down from time to time to be there.
17 Q. And can you also describe the frequency of your meetings with
18 other leading Croatian officials and who some of those leading people
20 A. My closest contacts were with Defence Minister Gojko Susak, who I
21 simply saw all the time, and this was a fast-moving situation. I suppose
22 I saw him four or five times a week, sometimes more. We often spoke; and
23 Foreign Minister Mate Granic, whose ministry was just across the park,
24 maybe a one-minute walk from the American embassy. Again, I would see
25 him four or five times a week. We would speak on the phone all the time.
1 The other official that I dealt with -- among the other officials
2 I dealt with a lot were Hrvoje Sarinic who, was Tudjman's Chief of Staff
3 and who was became the lead Croatian negotiator on the Eastern Slavonia
4 peace agreement, which is a set of negotiations that followed Operation
5 Storm that I was the mediator of; Miro Tudjman, Tudjman's son, who was
6 head of the Croatian intelligence service. I saw him somewhat less
7 frequently; Djurdja Susak, who was Miro's deputy and the wife of the
8 Defence minister.
9 And, of course, there were many others, but the big three would
10 have been Granic, Susak, and Sarinic.
11 Q. In P444, your 92 ter statement, in paragraphs 31 through 31, you
12 address President Tudjman's views on a number of related subjects,
13 including his belief that states ought to be ethnically homogeneous or
14 close to it, his belief and statements that Serbs in Croatia were to
15 numerous and constituted a strategic threat to Croatia, his views about
16 population transfers, his views that the Krajina Serbs represented, as I
17 think I mentioned, a strategic threat.
18 Can you describe for the Court, in as much -- in any more detail
19 than is necessary, those views on both the continued presence of Serbs in
21 A. First, I think a word about Tudjman. He was an extremely
22 confident leader, very confident in his own abilities. He was a
23 historian by academic training. He was a strategist, but he thought of
24 himself as a strategist on a grand scale. He had strongly-held beliefs
25 which he felt would be self-evident to a rational Westerner, like the
1 American ambassador. So he never hid his views. And he believed that
2 states were -- European states were much better off if they were
3 ethnically homogeneous. Kind of an odd argument for him to think that an
4 American, given the nature of our country, would believe that, but he
5 just assumed that I would accept that.
6 He saw because of their geography that the Krajina Serbs were a
7 particular threat. They were located, after all, in such a way that they
8 almost divided the northern part of Croatia
9 historian, he spoke about approvingly of population transfers,
10 particularly the population transfer that took place in 1923 after the
11 Greek-Turkish War, in which the Greek population of Anatolia was sent to
12 and Greece
13 Although I would argue with him about this, pointing out the
14 enormous human misery that was involved in that exchange and that fact
15 that it really hadn't made for an enormously peaceful relationship
16 between Greece
17 to him.
18 He also believed that, and this really fit in the same world
19 view, that Bosnia
20 east, and a Croat part - and sometimes it would be different views -
21 either a Croat part that also included the Muslims in the west; and in
22 this context, he looked very much at the idea, for geographic reasons, of
23 exchanging Banja Luka, which was - well, at this point, 1995 - had become
24 almost a purely Serb city as a result of ethnic cleansing - for Tuzla
25 which was an overwhelmingly Muslim city.
1 Q. And did you hear similar views expressed by other Croatian
2 leaders be with whom you had contact?
3 A. Tudjman's views, among the senior Croatian leaders with whom I
4 met, Tudjman's views were pretty much his. He was the one guy who
5 believed in what I call a great Greater Croatia; that is, one that would
6 include the Bosnian Muslims. There were other Croats or Croatians who
7 believed in what I call the smaller Greater Croatia, which would include
9 Susak, and it's also true of a number of the people in the ruling
11 I would say at that time that 90 per cent or more of the Croatian
12 people actually rejected either idea of Greater Croatia. There was, I
13 think, no support for the idea of dividing Bosnia in two, the way Tudjman
14 wanted to do it. And, on the whole, the Herzegovinians were rather
15 unpopular in Croatia
17 territory in Bosnia
18 Q. In paragraph 65 of your 92 ter statement, P444, you refer to
19 Mr. Sarinic describing Serbs as a cancer on the stomach of Croatia.
20 Can you describe this for the Court, and what you understood this
21 reflected about his views concerning the continuing presence of Serbs in
23 A. Well, once the Serbs had left Croatia, neither Tudjman nor the
24 senior people in his government wanted the Serbs to come back, and
25 Sarinic was in many ways a cipher for Tudjman. Susak and Granic had
1 their own personalities. They would express views that were different
2 from Tudjman, but Sarinic basically repeated what the president wanted.
3 At this time, this is a few weeks after Operation Storm, I am, on
4 instructions from my government, I am criticizing Croatia for the human
5 rights abuses that are taking place in the Krajina, and insisting that as
6 a fundamental matter of human rights, the Serbs should have the right to
7 return home and recover their property.
8 We were also trying to get Croatia
9 which was to strip the Krajina Serbs of citizenship and to confiscate
10 their property unless they claimed it in 30 days. Of course, nobody was
11 allowed to come back in the 30 days. So this would have been why I was
12 talking to Sarinic about this issue. And in this conversation, in
13 August of 1995, he said, "We cannot except them to come back. They are a
14 cancer in the stomach of Croatia
15 I just thought that was just a shocking metaphor about people
16 who, we felt, were citizens of the country and had the same rights as
17 other citizens of the country.
18 Q. Ambassador, let me direct your attention next to, and you had
19 begun to do so already, to the period of time after the commencement of
20 Operation Storm and after the majority of Serbs were no longer in the
22 In paragraph 42 of your 92 ter statement, you indicate that
23 immediately after the large-scale flight of Serbs from the Krajina, you
24 expressed the view that it was not ethnic cleansing, as explained in
25 testimony during the Milosevic case. Perhaps, it would have been more
1 helpful if the statement included that, your description of that in the
2 Milosevic case or your explanation about that in the Milosevic case.
3 But can you tell the Court what you were referring to by ethnic
4 cleansing in that context, both the context in which you said that and
5 what you meant by saying that it was not ethnic cleansing?
6 A. Well, ethnic cleansing, as I considered it to be, involved
7 actions to expel the population through military attacks, terror,
8 mass rape, killings, to make sure that everybody who survived left, the
9 burning of homes.
10 Basically, ethnic cleansing was what took place in Croatia
11 1991, in Eastern Slavonia, and in the Krajina where the Serbs ethnically
12 cleansed the Croats who lived there, and what took place in Bosnia
13 1992 where the Bosnian Serb army used mass killings, mass rape, putting
14 people in concentration camps, destroying their homes, to expel them and
15 to therefore make ethnically pure a large part of Bosnia that had not
16 been Serb but which then became Serb.
17 In my view, the Croatian -- Croatia did not do this in Operation
18 Storm, because when the Croatian forces arrived, the Serbs were already
19 gone. So you couldn't ethnically cleanse somebody who was not there.
20 This is it not to say that they wouldn't have done it had the population
21 been there, but the fact is the population was not there when the
22 Croatian forces actually arrived.
23 So that's what I meant by that statement. I have to say that I,
24 over the years, have regretted that I made it, because it was
25 misunderstood and sort of seemed to be an apology for the Croatian
1 military action, and that was not whey intended. It was simply a
2 technical explanation as to why it was not ethnic cleansing.
3 Q. And in connection with Serb flight, I also want to ask you about
4 any information you received concerning the role of so-called psy-ops, or
5 psychological operations, or electronic warfare?
6 A. Well, I talked to Defence Minister Susak about this, and he was
7 very proud of the psychological operations in which they had given
8 instructions for -- to the population on how to leave, and a variety of
9 other measures that I have to say at this point some of the details of
10 which escape me.
11 And, of course, I also had reporting from our own sources, for
12 example, the defence attache, about the psychological operations, and
13 then these later became a subject of controversy.
14 Q. You address that, to some extent, in paragraph 61 of your 92 ter
15 statement, again referring to discussions with Minister Susak, and you
16 say in the third sentence of paragraph 61: "At one point, he said that
17 they had managed to give the order for the Serbian population to leave
18 through their electronic warfare."
19 Did Minister Susak describe the particular order that was given
20 for the Serbian population to leave?
21 A. I don't recall that he did. As I recall, he talked about roads
22 that people should take, but my understanding is that the Serbian
23 authorities gave an order for the population to leave. So, as I say in
24 this statement, that he was either from -- he was known to exaggerate, so
25 he may have been taking credit for something that was happening anyhow
1 for an order that the Serbs had given.
2 Incidentally, I should add one another point, which is not in
3 here. The Croatian intelligence on the Serbs was extremely good, and so
4 it is quite possible that the Croatians knew that the Serbs were going to
5 give an order for an evacuation, and then either jump the gun or did
6 things to confuse it as part of their psy-ops.
7 Q. Now, I think that's also reflected in an entry in your diary,
8 which is marked the 9th of August. It is marked on the diary page the
9 9th of August, which is found at page 38 in the diary.
10 MR. TIEGER: That's 31 of the e-court version, Your Honours.
11 Q. That's in the second full paragraph. In the bottom of that, you
12 note: "Susak was also very proud of his psy-ops."
13 But I also wanted to ask you about another entry in the diary,
14 and that is Minister Susak saying that one of his planes had bombed a
15 refugee column, but by mistake.
16 I wanted to ask you whether you received information from General
17 Cervenko also concerning attacks on refugee columns, and in that
18 connection -- or prospective attacks on refugee columns. And in that
19 connection, I would like to direct your attention to an entry for the
20 19th of September, which is at page 57 as marked in the diary, and I
21 believe page 50 in the e-court version.
22 In the second paragraph of the September 19th entry, you refer to
23 a conversation with General Cervenko; and then, after referring to a
24 particular incident, you say: "This is another sign of stress between
25 Cervenko and Susak about which he is remarkably candid. A few weeks ago
1 he showed Clark
2 civilians concentrated in Topusko area because there were ARSK units
3 among them. Cervenko said he went to Tudjman to get that order
5 MR. KEHOE: If I may, Judge, interrupt. This matter is outside
6 the scope of this indictment. This is in Sector North.
7 JUDGE ORIE: Mr. Tieger.
8 MR. TIEGER: Yes. As we discussed on a number of other
9 occasions, Your Honour, there is an difference between showing evidence
10 of intent, motive, pattern, and so on, than eliciting evidence
11 specifically designed or directly related to a particular incident for
12 which criminal responsibility is alleged. It is clear that this kind
13 information is relevant and could be useful to the Court in assessing
14 what happened in the indictment area and in the indictment period.
15 MR. KEHOE: May I respond, Judge?
16 JUDGE ORIE: Yes, please do.
17 MR. KEHOE: On that score, Judge, if it was, in fact, relevant,
18 then it should have been in his statement, and it's not.
19 JUDGE ORIE: Mr. Tieger, concentration of information in
20 statements apparently is the issue.
21 MR. TIEGER: The statement was taken at a time when I didn't have
22 the diplomatic diary, Your Honour. That document has been disclosed. I
23 believe it has been in the possession of the Defence for some time. In
24 any event, the statements do serve a particular purpose, but they should
25 far from exclusive. There is obviously no intention on the part of the
1 Prosecution, given the timing of receipt of the diplomatic diary, and I
2 might also add that this was contained in the supplemental information
3 sheet at page -- or paragraph -- Again, I may oblige to withdraw that
4 Your Honour. I don't -- I can't find it at the moment.
5 In any event, as I said, we endeavour to put all material
6 available to us in the supplemental information sheet, and the original
7 statements wasn't in possession of the diary at that -- at the time the
8 statement was given. And, furthermore, I mean, it is almost impossible
9 to include all aspects that are relevant to the case in either a 92 ter
10 statement or even supplemental information.
11 So I don't think that is a basis for exclusion. If it became
12 habitual and large portions of evidence that was led from a witness was
13 not available to the Defence, that would be one thing. But in this case,
14 the diary has been available to Mr. Kehoe for at least as long as it has
15 been available to me, if not longer, based on the information received.
16 JUDGE ORIE: Of course, how much time you've had to review
17 material that would be - I'm not giving a decision yet - that would be
18 irrelevant, of course, is not a matter that really gives any weight.
19 [Trial Chamber confers]
20 JUDGE ORIE: Mr. Tieger, the Chamber is aware that this is in
21 evidence, it has been admitted into evidence. The Chamber is not seeking
22 to or would not consider to be greatly assisted by further exploring the
24 MR. TIEGER: Thank you, Your Honour.
25 Q. Now, Ambassador, you have already begun to address the issue I
1 next wanted to raised in your discussion concerning Mr. Sarinic's
2 comments. But, as indicated by that testimony, and as in a number of
3 paragraphs in the 92 ter statement, President Tudjman's position on the
4 return of Krajina Serbs was that they simply couldn't come back.
5 Now, you say, in paragraphs 34, 36, and 75 of your statement,
6 that he established constructs to achieve just that. You refer to the 30
7 days to return or lose property, and then a- and then keeping Serbs from
8 getting back in to meet that condition, the extension to 90 days which
9 was still insufficient. And in paragraph 75, you state that
10 President Tudjman's initial plan was to bar prospective returnees, but
11 that the US
12 Can you describe, although I know you have begun to do so, these
13 barriers to Serb returns that were erected and how they were implemented
14 and their success?
15 A. There were both legal and practical barriers to Serb return.
16 Tudjman referred to these people as "obtansi" [phoen], as people
17 who had opted out of Croatia
18 August, Tudjman -- Croatia
19 days and register for citizenship would not be able to return to Croatia
20 and their property would be confiscated, at which point, then, the
21 confiscated probably would become part of the overall settlement between
22 -- of property claims in the former Yugoslavia
23 course, the idea was that Serb property would be offset against Croat
24 property, Croatian property that had been seized or destroyed in Eastern
1 that people would get absolutely nothing.
2 Under US
3 suppose, sometime in September. Then it was the -- this deadline was
4 eliminated in sometime in December. And in 1996, again under intense
5 pressure from the United States, Croatia
6 But that wasn't the end of the store because, in fact, nobody
7 returned, or almost nobody returned. When the few people did try to
8 return, they found they couldn't get visas if they were in Serbia
9 they tried to recover their property, the local officials would never
10 return it. There would be people living in it; nobody would evict those
11 people who were living in it. So, as a practical matter, there were
12 virtually -- the system was set up to guarantee that there would be no
13 returns; and, until 2000, there were virtually no returns or very few.
14 Beyond that, beyond the legal barrier, the effort to legally
15 strip Croatian citizenship from these people, the effort to legally
16 confiscate their property, the Croatian authorities in the Krajina region
17 either ordered or permitted to happen the systematic destruction of -- of
18 all -- of thee greatest part of the Serb important.
19 So once your house was burned and all possessions looted, your
20 farm animals killed or stolen, there was nothing for you to return to.
21 And this, incidentally, was a very marginal part of Croatia, and people
22 had a very low income and suffered from four years of total isolation.
23 People were living at the margin. So when you take away their house, you
24 burn their house, you take away their property, you kill their farm
25 animals, there is no way that anybody can return there and make a living.
1 I believe that was an intentional policy, either orders to destroy the
2 property or --
3 MR. KEHOE: Excuse me, Your Honour.
4 With regard to that, I object. I believe --
5 JUDGE ORIE: Mr. Kehoe, that is the answer the witness gives. He
6 is not asking for beliefs. Of course, there is need to further explore
7 on what his belief is based on, but it's not a reason to intervene.
8 Please proceed.
9 THE WITNESS: Again, either that this was on orders or something
10 that the state authorities permitted to happen because it served their
12 JUDGE ORIE: Mr. Tieger, could you please explore the factual
13 basis on which this one belief or the other belief is based upon.
14 MR. TIEGER: Of course, Your Honour.
15 Q. Ambassador, the Court is interested in hearing from you
16 additional information about the basis for your belief that this
17 destruction was intentional; that is, either orders or permitted to
19 A. Yes. First, this was when -- this was an area without a
20 population. The people who were there were -- was the Croatian military
21 in the immediate aftermath of Operation Storm, so they were in control.
22 This wasn't like the Krajina Serb army or some of the other armed forces.
23 This was the most disciplined military and the best military in the
24 former Yugoslavia
25 So there they were, in control; and while they were in control,
1 almost from the start, the looting and burning is taking place. I
2 describe my own observations in Petrinja of going there, I think, on the
3 6th of August, a few hours after it fell. Again, the Croatian military
4 fully in charge; going back there on the 9th with increasing signs of
6 I had embassy officers down in Knin coming, I think, the 7th or
7 8th of August - it is in the diary, the precise date - reporting as they
8 were approaching, first through Drnis, seeing recent destruction; coming
9 into Knin where buildings on the outskirts were being burned; one of the
10 officers coming up to some Croatian soldiers and saying, "The house is on
11 fire. Are you going to do anything about it," and then realising that
12 these were the people setting the fires.
13 And, again, given the scale, I don't think that you can argue
14 that these were -- and how long it took or the period of time over which
15 it took place, I don't think that you can say these were isolated
16 incidents. So, to that, I guess I could add a further observation of
17 coming on September 20th to Donji Lapac, a town that was 90 per cent --
18 98 per cent Serb, I believe. The most Serb municipality in Croatian in
19 which, in my estimation, 70 per cent of the buildings in Donji Lapac -
20 and these were apartment blocks and things like - had been torched. None
21 much them had been damaged in fighting. They had been systematically
22 torched, and all the ones that hadn't been torched had been all looted.
23 So, again, given the nature of the Croatian state, given that it
24 was a disciplined military, given that it was an organised and efficient
25 state, I don't or I cannot accept the idea that this it was -- that these
1 things happened spontaneously. I can think that they only happened
2 because the Croatian state authorities, Tudjman and his -- the gang
3 around him, wanted this to happen.
4 I put that, then, in the context of Tudjman's desire for an
5 ethnically pure Croatia
6 I put this in the context of, as we have already discussed, of these
7 laws, the utterly unfair laws, that were intended to prevent, to deny
8 Serbs Croatian citizenship and to confiscate their property. I put this
9 in the context of comments, which I heard from lots of Croatians, that
10 the Serbs were a cancer on -- Krajina Serbs were a cancer on the stomach
11 of Croatia
12 presidential meetings, you can see, for example, Susak talking, boasting
13 about how Grahovo is now ethnically clean.
14 So these are all the reasons why I believe that either this was
15 on orders or something that was permitted, and I can't say because I
16 don't have a smoking gun of some direct order. But I cannot believe that
17 this happened except for it being something that the Croatian authorities
18 that Tudjman wanted to have happen or was pleased was happening as it was
20 MR. KEHOE: Excuse me, Your Honour.
21 On this score, obviously the witness has been shown a series of
22 transcripts from which he bases his opinion, and we would like a list of
23 the transcripts that they -- that the witness was, in fact, actually
25 MR. TIEGER: Your Honour, the transcript to which the witness
1 just referred to is the August 12th, which is in evidence. It came in
2 this morning through this witness.
3 MR. KEHOE: With this particular witness, this witness was not a
4 participant in that meeting, but was this witness shown anything else
5 which he wasn't a participant?
6 MR. TIEGER: I believe the Defence has the full list. I think
7 that we -- that the witness has referred explicitly, to the best of my
8 recollection, to all the transcripts which he was shown, and they've
9 either -- and I think they're in evidence.
10 MR. KEHOE: Here is the problem, Judge --
11 MR. TIEGER: Excuse me. Im' sorry to interrupt. This particular
12 issue arises in the context of a presidential transcript which was
13 introduced this morning, and contains a reference which Mr. Kehoe
14 apparently overlooked, but it is in the August 11th transcript.
15 MR. KEHOE: May I respond, Your Honour.
16 JUDGE ORIE: Yes, please.
17 MR. KEHOE: It's not a matter of overlooking that, Judge. What
18 we are entitled to and what General Gotovina is entitled to is the facts
19 and circumstances upon which Ambassador Galbraith is going to testify, be
20 it in his 92 ter statement or a supplemental --
21 JUDGE ORIE: Why not ask Mr. Galbraith on which transcript he --
22 MR. KEHOE: Well, I think there is a larger issue here, Judge.
23 JUDGE ORIE: Yes. But that is the issue at this moment.
24 MR. KEHOE: I have a separate issue, Judge, which is how are we
25 supposed to prepare to meet, with all due respect, the Ambassador's
1 testimony? How are we supposed to prepare to meet that when such an item
2 of that is not given in the indication, and why was it? Why was it shown
3 to him. This is not something that was a fact that he heard and observed
4 because he was not a part of that meeting. But now we have evidence that
5 it is presented. It is not a fact, it is not something that he observe,
6 certainly a transcript that he reviewed that he was not an participant
7 in, to which we is now have to answer.
8 MR. KAY: Can I raise just one matter. I'm trying to find an
9 11th of August transcript, Your Honours.
10 JUDGE ORIE: I see minutes of the an August 11th, 1995 meeting,
11 participants. That is P456; that is, 11st of August.
12 MR. KUZMANOVIC: Your Honour.
13 JUDGE ORIE: Yes, Mr. Kuzmanovic.
14 MR. KUZMANOVIC: I would like to add to what Mr. Kehoe said.
15 In essence, what is happening here is the Ambassador is being
16 presented with a list of transcript or transcripts most of which he was
17 not a participant in, and then he is asked: "What are your opinions
18 based on the transcripts?" Not directly, but all he is being asked is to
19 give opinion testimony on what the transcripts are, and that's not what
20 the Ambassador is here to talk about.
21 JUDGE ORIE: That seems to a misrepresentation what happened.
22 But, Mr. Tieger.
23 MR. TIEGER: I'm glad the Court appreciates that. That is
24 precisely my point. First of all, I mean it is a misrepresentation on
25 several levels, first of all, to say most of which he didn't participate
1 in. That was made very clear this morning which documents came in, and I
2 made explicit that this was the only one in which the witness had not
3 participated. I did not seek to elicit testimony from the witness about
4 those transcripts and his conclusions drawn from them.
5 The Defence has been on notice of the witness's views concerning
6 the systematic destruction and the basis for that systematic destruction
7 in the course of a very fulsome answer and very useful answer about how
8 came to that conclusion, the witness appended at the very end his
9 recollection of reading one thing from a transcript which is in evidence.
10 It is extremely unfair and in accurate to accuse the Prosecution
11 of presenting witness with materials so he can form some independent
12 conclusion about it.
13 Beyond that, that, to some extent, that has been something we've
14 seen in other context when documents that witnesses haven't seen have
15 been presented to them, so that they can offer a view about the
16 information contained in those documents based on their own unique
17 experiences in the Krajina.
18 So, even had that been done, it is far from clear there is
19 anything inappropriate about it here, but that's not what happened here.
20 MR. KEHOE: May I respond, Judge.
21 JUDGE ORIE: I think we will first see whether there is any need
22 for further debate.
23 [Trial Chamber confers]
24 JUDGE ORIE: The Chamber denies the objection.
25 The witness gave some judgements which are always of a mixed
1 nature. We asked or invited Mr. Tieger to further explore the factual
2 basis for that. The witness gave some facts he observed himself; the
3 witness gave some facts that were apparently reported to him, like the
4 soldier who only became aware that it was these soldiers.
5 Mr. Galbraith, I take it you were not standing next to that
6 soldier at this time.
7 THE WITNESS: No. Let me just explain --
8 JUDGE ORIE: No, no.
9 The exploring the basis on which the witness gave his judgement
10 opens up exactly what sources he used, sources that can be used in
11 cross-examination could explore what he heard or not. Of course, the
12 problem always is that in this kind of situations, that those who
13 participated in meetings matters, et cetera, observed matters, matters
14 are reported to them, they form an opinion on this on which they further
15 act, et cetera.
16 So, therefore, under those circumstances, the objection is
18 Please proceed, Mr. Tieger.
19 MR. KEHOE: Might I raise one issue, Your Honour, and it goes
20 exactly --
21 JUDGE ORIE: As long as it is not challenging the ruling I just
23 MR. KEHOE: It is not, Your Honour. It's just exploring what
24 Your Honour just said.
25 An Your Honour, at line 23 through 25, exploring exactly what
1 sources he used - I believe you said exactly what sources he used - how
2 do we know what sources he used if we don't have disclosure of those
3 sources? Obviously, it was unknown to us, until just now, that a
4 transcript at which the ambassador was not present was used during the
5 prep session to further whatever testimony the Prosecution was going to
6 lead during the course of this testimony. And absent this one comment
7 about this, it's unknown to me how we are supposed to explore those
8 sources if we do not have disclosure of them.
9 Never, when I was going through this and going through the
10 statements, it didn't dawn on me that something that at which the
11 ambassador was not present, nor participated in, would be used during the
12 course of his prep session, when we were talking and have been talking so
13 much about facts and circumstances.
14 So, unless there is some procedure coming from the Office of the
15 Prosecutor, a disclosure to the Defence of everything that they've shown
16 a witness in preparation, then I think that we don't have any way to
17 explore on cross-examination the sources that he used.
18 The fact of the matter is this particular item was shown to the
19 witness before it went into evidence.
20 JUDGE ORIE: Mr. Tieger, are you willing to further tell
21 Mr. Kehoe what other material was shown to the witness during the
22 proofing sessions or while preparing his testimony.
23 MR. TIEGER: Your Honour, I believe, as I stated, that I
24 stated --
25 JUDGE ORIE: This is all.
1 MR. TIEGER: That is exactly right.
2 And, furthermore, I think, well, first of all, that's whether or
3 not that's simply an inquiry about matters to or procedures to be adopted
4 in the future, or, in fact, a continuation of the debate about this
5 particular objection is another story. But, there, the Defence has ample
6 opportunity to explore with any witness the basis for his opinions, the
7 documents he was shown, and --
8 JUDGE ORIE: I think, as a matter of fact --
9 MR. TIEGER: [Overlapping speakers] ... that's the way the --
10 JUDGE ORIE: -- Mr. Tieger, we are revisiting the same matter.
11 Mr. Kehoe, you heard from Mr. Tieger that the material that was
12 shown to Mr. Galbraith, and, of course, you could ask him whether he has
13 any different recollection, that the matters we have now on our exhibit
14 list and most of which was admitted into evidence that that's the
15 material you went through with the witness in preparing him for his
18 MR. KEHOE: I understand, Judge. I understand that that's the
19 position with regard to this witness. We have been in trial for
20 sometime, and I don't really know about that, prior witnesses. But I
21 understand with regard to this witness that this is the -- all of the
22 items that have been shown. It does, in fact, present some preparation
23 difficulties as we move forward.
24 JUDGE ORIE: Then you may please proceed, Mr. Tieger.
25 If there's any reason to revisit this matter in more general
1 terms, then I can tell you Mr. Kehoe whatever documents you get to trace
2 all the impressions, documents, the witness gathers over a couple of
3 years being, I would say, involved in many matters to - of course, it is
4 fair that we have it now on or list what was shown to the witness - but
5 to have the illusion that you could find the roots of every tiny little
6 bit of that is just impossible. Let's be aware of that.
7 MR. KEHOE: I am aware of that, Judge, and I know that the
8 Ambassador's long experience in this area and his positions have been
9 formulated by many different facts and circumstances. I'm concerned
10 about is the documents that are shown to witnesses before they come into
11 this courtroom. Now it did surprise me that this, in fact, has been
12 shown to this witness and has been used as a basis, further basis, of his
13 position. And that's what I'm concerned with, not everything else.
14 JUDGE ORIE: That's on the record.
15 Mr. Tieger you, may proceed. While I'm looking at the clock,
16 perhaps it is even wiser to have a break.
17 I have to apologise. During the last break, I was doing
18 something else and just forgot about the time, which I do not encourage
19 anyone to do. I will try to improve my performance and back at ten
20 minutes to 1.00.
21 [The witness stands down]
22 --- Recess taken at 12.32 p.m.
23 --- On resuming at 12.51 p.m.
24 JUDGE ORIE: Mr. Kehoe, I heard that you would like to put
25 something on the record in the absence of the witness.
1 MR. KEHOE: Yes, Your Honour.
2 JUDGE ORIE: Please do so.
3 MR. KEHOE: Thank you, Your Honour.
4 What I'd like to address with the Court is the fact that this
5 witness is, in fact, giving what is essentially expert testimony based on
6 his opinion. Obviously, there has been no notice of that score under
7 Rule 94 bis. But, in essence, the testimony that he has given for the
8 past, well, some time, in this session, has not been based on facts --
9 excuse me, has been based on facts, but then he opines on those and
10 offers his conclusion. That is expert testimony; and based on that we
11 object to that testimony because, number one, he has not been noted as an
12 expert and such testimony is violation of Rule 94 bis.
13 [Trial Chamber confers]
14 JUDGE ORIE: Your objection is on the record and gives the
15 Chamber, at this moment, no reason to not further receive the witness of
16 this witness.
17 Could the witness be brought into the courtroom.
18 [The witness entered court]
19 JUDGE ORIE: Mr. Tieger.
20 MR. TIEGER: Thank you, Your Honour.
21 JUDGE ORIE: For the parties, I do not know whether I misspoke on
22 67, line 25. I think I said to receive the evidence of the witness;
23 whereas, the transcript says otherwise. I do not know whether I made the
24 mistake or whether the mistake was made by another.
25 If I did it, apologies.
1 Please proceed.
2 MR. TIEGER: Thank you.
3 Your Honour, can we next call up P446.
4 Q. Ambassador, I'd like to direct your attention to P446 which is a
5 coded cable, and I believe is dated 31 August 1995.
6 Just for the benefit of the Chamber, in deciphering some aspects
7 of the cables, is it correct that you can identify the date of that
8 document by the notation which is immediately to the left of the
9 unclassified marking at the top?
10 A. Yes, that is correct.
11 Q. So it indicates the month and the year to the right, and then the
12 date is the first notation of the --
13 A. And the time. So it would be the 31st of August -- I'm sorry,
14 even with these glasses. I think it is 11.15 -- sorry. Well, it's 1518,
16 Q. Sorry. If this is helpful, it is contained in tab 5 of your
17 binder. It might make it easier to read.
18 A. Yeah.
19 Q. Now, you described, earlier in your testimony, the views about a
20 largely ethnically homogeneous Croatia and the constructs implemented to
21 keep Serbs from returning. I want to ask you if you were aware of who
22 was supposed -- what Croatian leaders intended for the demi-graphics of
23 the Krajina in the aftermath of Operation Storm.
24 And I want to turn your attention to paragraph 43 of P446 which
25 indicates as follows: "The offensive and resultant population
1 displacements has caused a massive refugee problem. The Croatian public
2 announcement to give security guarantees to the Serbs in the region was
3 intended for Western propaganda purposes. The goal of the Croatians is
4 to 'ethnic cleanse' the region to make room for approximately," and the
5 coma looks like 100.000, but there appears to be an extra zero. Perhaps
6 you will be able to clarify.
7 "Croatian refugees to settle in the area," and then it goes on to
8 describe how that is substantiated by the practice of taking Serbs to
9 transition camps.
10 First of all, Ambassador, was that your understanding at the
11 time; that is, that the goal was to make room for Croatian refugees in
12 lieu of the Krajina Serbs who had fled?
13 A. The first point I would make is that Tudjman, when really
14 pressed, spoke about, you know, maybe 10 percent of the Serb population
15 being there; although, though I think he was against any of it being
16 there. That, of course, left a lot of vacant space, and his idea was
17 that Croats from the Diaspora might then come to the Krajina and settle
19 It is possible that he spoke or the Croatian leadership spoke
20 about 100.000 Croat refugees from the fighting in Bosnia. That would be
21 some from Eastern Slavonia. Also, he expected some people to come back
22 from the Diaspora, and that they would all come and settle there.
23 Q. And if I could turn your attention next to P447, that's in tab 6
24 of your binder, Ambassador.
25 A. Mm-hm.
1 Q. This is a coded cable dated 11 December 1995, and is this a cable
2 from you, Ambassador?
3 A. It is a cable from me, and it is a cable that I personally wrote,
4 which is evident from the use of the first person. Also, it was sent in
5 a channel that would have gone directly to the Secretary of State. It
6 was sent, I believe, in anticipation of his visit to Zagreb.
7 Q. Excuse me. Just a moment.
8 Now, Ambassador, this cable indicates that, in paragraph 3:
10 has arbitrarily confiscated their property. Far from being apologetic,
11 Tudjman yesterday told visiting congressman that it would be impossible
12 for these Serbs to return to the place where their families lived for
13 centuries. The burning of Sipovo, for which he rightly called Tudjman on
14 the carpet, was part of a broader strategy to creat a Serb-free cordon
15 sanitaire around the Croatian heartland. The same systematic burnings of
16 Serb homes followed Croatia
17 September capture of Serb towns in western Bosnia. None of this was," as
18 Tudjman claimed to you, "the isolated acts of angry men."
19 Can you describe to the Court what you were intending to convey
20 with this cable, Ambassador?
21 A. I was intending to convey the same thing that I did in the answer
22 I gave before the break, which is that - these were judgements that I
23 formed in 1995, as is obvious from this cable that - that the systematic
24 destruction of the Krajina was something that was either planned or
25 permitted, but anyhow it was something that was intended to happen by the
1 Croatian -- by Tudjman and the Croatian authorities. It was not because
2 or it didn't take place because of angry Croats returning and wanting to
3 take revenge on Serb property. It wasn't isolated acts. It was a matter
4 of state policy. That was my message to the Secretary Of State, and that
5 was a judgement that I formed well before I sent this cable because it is
6 reflected in other messages I sent as well.
7 Q. Had you sent a similar message -- I'm violating the rule of
9 Had you sent a similar message to the secretary earlier in the
11 A. On September 11th -- I should explain, for the benefit of the
12 Court, there is an channel in which an ambassador sends a message
13 directly to the Secretary of State, either it can be very sensitive
14 issues, but usually on policy -- or quite often it would be on policy
15 matters, and it isn't used very frequently.
16 But on September 11th, I sent a cable exactly on this subject, in
17 which I again said that what was going -- the destruction in the Krajina
18 was part of a pattern intended to make it impossible for Serbs to return
19 home, and that the United States should condition its relations with
20 Croatian on Croatia
21 citizenship on their permitting Serbs to recover their property, making
22 restitution for property that was destroyed, on providing conditions of
23 security so that people could return home. And if Croatia didn't do
24 that, we should have a series of really very strong measures that we
25 would not -- we would block Croatia
1 and talk to our European allies of keeping them out of the European
2 structures, that we would keep them out of the NATO structures, that
3 unless Croatia
4 reintegration of Eastern Slavonia. In other words, that our entire
5 relationship should depend significantly on Croatia's reversal of a
6 policy that was in place, which was to prevent the return of Serbs and
7 to, by law, and by -- by having conditions of insecurity in the Krajina
9 Q. Now, Ambassador, you refer in this cable to a Serb-free cordon
10 sanitaire around the Croatian heartland. Can you explain what you meant
11 by that?
12 A. Yes. In the area to the west of -- of the Krajina region in
14 1995 offensive that followed Storm, and allowed or ordered the systematic
15 burning of Serbs' homes and properties, preventing Serbs from returning
16 to this area. The idea was that this thing would become a Croatian area,
17 it would be a buffer to Croatia
18 Tudjman's idea that this area would along with Herzegovina eventually be
19 annexed to Croatia
20 Q. And did you -- I'm going to refer to paragraph 23 of P445, and
21 ask you if you saw personally examples of what you just referred to and
22 also heard and also received reports about it.
23 A. Yes, I did.
24 Q. Okay.
25 MR. TIEGER: And, Your Honour, just for benefit of the Court, if
1 I could call up the P52 -- or, excuse me, 65 ter 5233.
2 Q. That's, I believe, tab 17 in your binder, Ambassador.
3 It takes time because maps take a long time to load
5 JUDGE ORIE: Mr. Tieger, you are aware that there was a possible
6 objection against this.
7 MR. TIEGER: Oh, I'm sorry.
8 JUDGE ORIE: No. I think earlier we discussed the adding this --
9 this map to the 65 ter list, and I then reserved the position of the
10 Chamber as far as relevance is concerned for this map.
11 So, perhaps, also in your questions make it immediately clear
12 what the relevance is; and then before the witness answer the question,
13 then at least the Defence should have an opportunity to oppose it.
14 [Prosecution counsel confer]
15 MR. TIEGER:
16 Q. Ambassador, you refer, in paragraph 23 of your supplemental
17 information sheet, to observing what happened when the HVO took over some
18 towns in western Bosnia
19 Mrkonjic Grad. Can you first point out where Mrkonjic Grad is on this
21 A. It is in western Bosnia
23 MR. TIEGER: And if we could enlarge that, yeah, the portion of
24 the map to the left. Sorry. Okay.
25 And if the cursor could be moved to the right. All right. A
1 little further to the right, please. A little further to the left. I'm
2 sorry. I think the --
3 Q. Ambassador, perhaps you can direct the -- are you referring to
4 the right, to the area where the cursor is now shown?
5 A. Yes.
6 Q. And --
7 A. And you will note is Sipovo is just below there.
8 Q. And then referring to the cordon sanitaire that you testified
9 about, is -- does that include the area shown in red on the Croatian
11 MR. KEHOE: Judge, please.
12 JUDGE ORIE: Yes.
13 MR. KEHOE: My objection at this point, of course, relevance on
14 this particular. The other aspect of this particular aspect is if this
15 is some allegation with regard to the HV, this was not HV-controlled
16 territory. At any point, it was controlled by the ABiH, so --
17 JUDGE ORIE: Mr. Tieger.
18 MR. TIEGER: Your Honour, I have no need to belabour the point.
19 The witness referred to certain locations. I indicated I thought it
20 would be helpful to the Court to observe those locations. In context,
21 the witness referred to Serb-populated areas. The map depicts what is
22 Serb populated, what is not, at least in 1991. The witness has testified
23 about that. I tendered the map, but I don't need to go into it any
25 MR. KEHOE: The problem is, number one, obviously our initial
1 objection concerning going into these Bosnian matters; but, number two,
2 this was an area that was not under HV control, nor is there in any
3 foundation that it was.
4 JUDGE ORIE: Mr. Tieger, I mean, you are apparently formulating
5 your objection on the basis of an assumption; that is, what I did not
6 hear in the question of Mr. Tieger that this was an area under HV
8 The witness referred to a certain place. Mr. Tieger now asked
9 where we find this on the map. Now, if you have made your objections
10 against this map to show it on, a map which gives some information about
11 the ethnic composition of the population, then we could, of course,
12 choose a rather complex way to try to find another map, and then to see.
13 I don't know to what extent the ethnic composition is very relevant at
14 this moment, Mr. Tieger. But at this moment, the Chamber is inclined,
15 since there have been no questions about it, inclined to rather use the
16 questioned map only to find the place the witness mentions.
17 So I'm colour-blind for this moment.
18 MR. KEHOE: Yes, Your Honour. And if I can just clarify, what I
19 am saying is that at this town was, in fact, burned, it was not under HV
21 JUDGE ORIE: You're giving evidence, Mr. Kehoe, which we leave
22 usually to the witnesses.
23 Mr. Tieger, please proceed.
24 MR. TIEGER: Thank you, Your Honour. That's fine. I would also
25 add that there has been testimony in this case earlier, and with this
1 witness, concerning Grahovo and Glamac. I think, to the extent that the
2 ethnic composition of those locations is of assistance to the Court, I
3 think, the map is useful in that regard as well.
4 JUDGE ORIE: Now, of course, the source, I don't know whether it
5 is a contested source, but it appears to be an ethnic map of Bosnia
7 this is a map which is based on or depicts the results of the 1991
8 census. Is there any dispute about that?
9 MR. KEHOE: Your Honour, with this particular map, if it is the
10 census map of the typical census map, no, I don't have a dispute about
11 that. My --
12 JUDGE ORIE: Okay. That's at least now clear. Is there any
13 dispute about whether the map does reflect properly the outcome of the
15 We have not yet heard or the only thing that is said until now,
16 and there Mr. Tieger was more or less giving evidence which I think he
17 should leave to others, is that Mr. Tieger said Grahovo and Glamac. I
18 think that you added something like that this was mainly Serb areas, but
19 I can't find it on the transcript, so I may be mistaken.
20 MR. TIEGER: [Overlapping speakers] ... this is in reference to
21 the map itself, Your Honour. What the map depicts about the demographics
22 of that area is linked to earlier testimony concerning those areas.
23 That's all, and it could be helpful.
24 JUDGE ORIE: Yes. Let's move on and see.
25 MR. TIEGER: Sorry, Your Honour. I'm just trying to determine
1 the extent to which I may be able to curtail the examination.
2 Q. Quick question, Ambassador: In paragraphs 46 of your statement,
3 at 46 at 56, you refer to criticism by the United States and by you of
4 the crimes that were taking place and the responses of Croatian
5 officials. You indicate, in particular in paragraph 56, that you were
6 constantly raising the issue of atrocities with various leaders and what
7 response you received.
8 In paragraph 13 of your supplemental information sheet, that's
9 P445, you refer to a response from Foreign Minister Granic who told you
10 on 13 October that he had not defended Croatia's conduct after Storm
11 because he couldn't do that. He disapproved of what was happening in the
12 Krajina, and wanted to make sure that you understood and didn't associate
13 him with it.
14 I wanted to ask you if that 13 October discussion with Mr. Granic
15 is also reflected in your diary of that date?
16 A. It is.
17 Q. Ambassador, just to round this out a bit, after the -- after
18 Operation Storm and the events that you described in the weeks and months
19 that followed the commencement of Operation Storm, did you continue to
20 engage in efforts to resolve the conflict in Croatia?
21 A. Yes, I did. I was the principal mediator, along with UN Envoy
22 Thorvald Stoltenberg, the editor of the Erdut Agreement, which provided
23 for the peaceful reintegration of Eastern Slavonia, the last bit of
24 Serb-held territory.
25 Q. And the Erdut Agreement, that was concluded when?
1 A. November 12th 1995.
2 Q. And did you go on to engage in efforts in Dayton to resolve the
3 overall conflict in the former Yugoslavia
4 A. I had been at Dayton
5 but for most of the Dayton
6 shuttle diplomacy between Zagreb
7 Serbs met to try and resolve that problem.
8 The Dayton
9 something that occurred simultaneously with Dayton.
10 Q. And did the Erdut Agreement signal the beginning of the end of
11 the conflict in Croatia
12 there continued fighting thereafter?
13 A. No. It very much was the beginning of the end, and I have to say
14 what it provided for was a two-year UN transitional administration which
15 Croatian authority was gradually introduced, and at the time end of that
16 two-year period, most of the Serb population remained. Some part of the
17 Croat population which had been expelled in 1991 returned, but it was the
18 first time in that five-year period, four-year period that a territory
19 changed hands and the population that was not from the group that was
20 acquiring the territory actually remained.
21 I might also add that one of -- this was very much related to our
22 concerns about the fate of the other Serbs in Croatia, because in order
23 to get this peace agreement in Slavonia
24 Slavonian Serbs that they could live in Croatia and be full citizens of
25 the country. That was very hard to do when there were laws that said if
1 you didn't return in 30 days, you would lose your property. And,
2 furthermore, some part of the Serbs from the Krajina had gone to Eastern
4 We needed to have a Croatia
5 for human rights, which meant people who were citizens of that country
6 had a right to the citizenship and had the right to the property. That
7 was essential, not just because it was right, not just because it an
8 internationally recognised human rights, but because it was essential to
9 the peace process in Easter Slavonia; and Eastern Slavonia was, in fact,
10 essential to getting to the Dayton Peace Agreement.
11 So there was a lot of stake on these issues.
12 MR. TIEGER: Your Honour, if I could just have a moment.
13 Your Honour, that concludes my examination-in-chief, and I would
14 tender the map.
15 JUDGE ORIE: Thank you, Mr. Tieger.
16 MR. TIEGER: Your Honour, sorry, I will also indicate to my
17 learned friends that I will had some bar table submissions. They needed
18 so time to completely review the documents, but I would like to get those
19 to the Court, just to be of assistance. I was encouraged to do that as
20 soon as possible, so I'm trying to do that.
21 JUDGE ORIE: Yes. We received copy of at least of the list. Of
22 course, we have not seen anything.
23 When could I hear from the Defence whether there are any
24 objections against exhibits tendered from the bar table.
25 MR. KEHOE: Your Honour, if we could have seven day period of
1 tome just to look at them. They're quite extensive.
2 JUDGE ORIE: Mr. Tieger.
3 MR. TIEGER: They are extensive in that respect, and I don't have
4 any theoretical problem with the time-period. I just --
5 JUDGE ORIE: You didn't raise the documents with the witness; so,
6 to that extent, it may be related in one way or the other. Of course, if
7 the Defence would like to use them in cross-examination, they're always
8 free to do so.
9 But the Prosecution is not insisting on a decision to be taken
10 earlier than the seven days requested by the Defence?
11 MR. TIEGER: I certainly wouldn't insist on an immediate
12 decision; that would not be fair. And, again, I'm just trying to balance
13 the Court's interest in having the documents available at the earlier
14 opportunity, against the Defence need to --
15 JUDGE ORIE: [Overlapping speakers] ... no. If there would be
16 any objections, I take it that the Chamber would need to have them
17 available anyhow, because we would then have to look at the documents in
18 order to decide on the objections.
19 So, therefore, the Chamber would like to receive whatever the
20 position of the Defence will be already to receive those, those
22 MR. TIEGER: And I would only add, Your Honour, to the extent is
23 Defence is aware of any objections to those documents, that it might
24 implicate, if not the need, then the utility of raising them with this
25 witness, then we would certainly like to know as soon as possible.
1 JUDGE ORIE: I take it that is it understood, Mr. Kehoe?
2 MR. KEHOE: Well, Your Honour, the issue is that I received these
3 documents on Friday, in transit; and they are quite extensive and it is
4 going to present some difficulties. If I had them sometime prior to
5 that, you know, I it would have been a lot easier. But there is a lot
6 going on here.
7 Mr. Misetic is bringing something to my attention. Might I have
8 a moment, Your Honour.
9 MR. KUZMANOVIC: Your Honour, while they're discussing, we got
10 the e-mail on the 20th and I got the two binders worth of documents
11 during the break, so it is going take a little bit of time.
12 JUDGE ORIE: Yes. The invitation is that whenever something
13 comes into your mind, don't hesitate to already inform Mr. Tieger and the
14 Chamber about any objections. Of course, therefore, don't wait until you
15 have reviewed everything, if you come across anything that with a cause
16 some problems. I see Mr. Kuzmanovic nodding.
17 Mr. Kehoe.
18 MR. KEHOE: Yes, Your Honour. Mr. Misetic highlights to me that
19 the one issue that comes up is the 8th -- August 3rd transcript [sic],
20 which involves the ambassador. We don't have an objection to that. We
21 will be putting the audio in during the course of the testimony, so I
22 don't believe that with the array that the Prosecution just put in that
23 that is the only one that --
24 JUDGE ORIE: [Overlapping speakers] ... that is the 8th --
25 MR. KEHOE: [Overlapping speakers] ... the 3rd, Your Honour.
1 It's the 3rd of August.
2 MR. KUZMANOVIC: P448, Your Honour.
3 JUDGE ORIE: P448. Then, Mr, Kehoe, you will be the first one to
5 MR. KEHOE: Yes, Your Honour.
6 JUDGE ORIE: Mr. Galbraith, you will be first cross-examination
7 by Mr. Kehoe who is counsel for Mr. Gotovina.
8 Please proceed, Mr. Kehoe.
9 Cross-examination by Mr. Kehoe:
10 Q. Ambassador, good to see you again.
11 A. Good to see you.
12 Q. Ambassador, I would like to talk to you, if we could just go back
13 to your 92 ter statement. I believe it is 444. I would like to go back
14 to some of your discussions about the Krajina Serbs, and just predate
15 your discussions with Mr. Babic in Belgrade
16 further and ask you to elaborate on a few matters, if you could.
17 And I'd like to direct your attention, first, to paragraph 6 of
18 your 92 ter statement, and you note that Slobodan Milosevic called all
19 the shots with the Krajina Serbs: "Among other things, including what I
20 saw of his control at negotiations, Milosevic was involved with the
21 payment of salaries of the ARSK and possibly police. All the fuel came
22 from Serbia
23 on Serbia
24 Just waiting for the translation to catch up.
25 Mr. Ambassador, tell us a little bit about the control that
1 Slobodan Milosevic exercised over the Krajina Serbs, if you could?
2 A. It was very substantial. He manipulated the elections in the
3 Krajina in 1994 to defeat Babic and to bring Martic into power. He paid
4 the salaries, he supplied the fuel. I believe or I'm sure that he was
5 the one who obstructed the Z-4 plan, for reasons that had little to do
6 with Krajina, but with his concerns about Kosovo and his hope to make
7 some deal with Tudjman, who frankly was open to a deal, in which Serbia
8 might acquire some Croatian territory.
9 So, yeah, I think he very much called the shots in the Krajina.
10 I could go on at greater length, but that was my conclusion.
11 Q. Let me -- just following up on your statement, did he control the
12 military as well?
13 A. Oh, yes, he certainly did. He changed the general after the --
14 after rockets were sent on to Zagreb
15 in part because he didn't want to have another rocket attack on Zagreb
16 Q. And that would have been the replacement of General Celeketic by
17 of General Mrksic?
18 A. That is correct.
19 Q. When the Krajina Serbs were initially set up back in 1991, was he
20 receiving the report of Slobodan Milosevic as far as back as then?
21 A. Yes, I believe -- that I believe is the case. Obviously, I only
22 came on the scene full time in June of 1993.
23 Q. And --
24 JUDGE ORIE: Mr. Kehoe.
25 MR. KEHOE: I'm sorry.
1 Q. Sorry, Mr. Ambassador.
2 And you noted for us that you believe that he rigged the
3 election, if you will, in 1994. Can you tell us about that a little bit?
4 A. Yes. Babic was, I think, the most popular person in the Krajina,
5 and I think he was the one leader who had some, and I want to underscore
6 the word "some," real concern for the population. And, therefore, he had
7 some degree of independence from Milosevic, and Milosevic didn't like
9 So you had a vote, and, again, you have to go back and check the
10 records. I'm doing this from memory, but it was quite extra ordinary.
11 In the first round, I think Martic got 24 per cent and Babic got 48 or 49
12 per cent, and somehow in the second round Martic actually won. I think
13 you would have to -- this is almost unprecedented in the history of
14 run-offs, that you have that kind of switch from one round to the next,
15 where all the votes go to the candidate who finished second when he was
16 that far behind.
17 Again, you would have to check on the exact percentages. I may
18 not have it right, but I think I have it right in the generality.
19 Q. So your conclusion, at the time, was that he --
20 JUDGE ORIE: No, Mr. Kehoe.
21 MR. KEHOE: I'm sorry.
22 Q. So your conclusion at the time that even through 1995, he was
23 directing matters in the Krajina?
24 A. Yes, that was my conclusion.
25 Q. Now, just backing up to 1991, and I'd like to ask you just a
1 couple of questions about the Greater Serbia and Milosevic's involvement
2 in some of that, and I just reference some of your prior testimony. We
3 are not going to go into it in great detail.
4 But in this testimony that you gave in the Milosevic case at page
5 23081 that you said, at line 21, that you believe that Slobodan Milosevic
6 was the architect of a policy of creating a Greater Serbia and that
7 little happened without his knowledge or involvement.
8 Can you explain that for us a little bit?
9 A. Well, there are many aspects of this: One is that the JNA, which
10 was the Yugoslav People's Army, was responsible to -- Milosevic was
11 effectively in charge of it; and, nominally, it was a different
12 structure. And the JNA - and this was, of course, when the Krajina
13 rebellion began; this was part of Yugoslavia
14 did not behave as a neutral force, but it sided with the Krajina Serbs,
15 helping to cease this area from Croatia
16 Then in Bosnia
17 the JNA arranged for the Bosnian Serbs in the JNA to be in Bosnia
18 then at one point in time, something like May of 1992, the JNA withdrew
19 from -- from Bosnia
20 Yugoslav People's Army. What remained in Bosnia, which was JNA with all
21 the equipment, with all the logistics, became the Bosnian Serb army.
22 And I could also go on to add, as we did the peace negotiations
23 in Dayton
24 these were peace negotiations about -- that theoretically was about the
25 sovereign state of Bosnia and Herzegovina and where the Bosnian Serb
1 leaders were present. Basically we didn't talk to them at all. The -- e
2 got the deal by talking to Milosevic.
3 Q. So he spoke for every -- for all the Serbs?
4 A. He did, yes.
5 Q. So was it clear to you, Mr. Ambassador, that when the Krajina
6 Serbs had set up their rebel government, it was the idea of ultimately
7 becoming part of this Greater Serbia?
8 A. Yes. That is my belief, at the time that it was set up.
9 Q. Let me show you a map, if I may, and this is it 1D33-0001.
10 I'm sorry, can we make that 1D33-0002.
11 Let's take look at this initially, if we could just examine this
12 and if we could move to the next map, which is a little bit more
13 specific, 1D33-0002.
14 Mr. Ambassador, this is a map that was the borders of the Greater
16 and Arts.
17 Mr. Ambassador, was that your understanding of what the
18 aspirations of the Greater Serbia advocates, including Slobodan Milosevic
19 for their ultimate goal of achieving a Greater Serbia?
20 A. I don't know if this particular map reflected those aspirations.
21 I testified that Tudjman was a very strategic thinker. You may
22 not like his strategy but he was very strategic. Milosevic, in my view,
23 was not strategic at all, he was very tactical, and he eventually
24 manoeuvred Serbia
25 he had this in mind, or people around him, what -- his goals kept
1 changing because, again, I don't think he really thought strategically,
2 but he did want a Greater Serbia.
3 Some of this territory, obviously Split would seem to me to have
4 been a -- and perhaps some of the territory in Slovenia would have been
5 going too far. But he certainly wanted a Greater Serbia that included a
6 fair amount of what is shown on this map.
7 Q. If we could continue on, and let's get down to the effect of the
8 breakaway republic -- the so-called Republic of Serb Krajina
9 Did it in fact divide Croatia
10 what did it do to the Republic of Croatia
11 A. Well, the first point is that it divided, if you will, mainland
13 ambassador, there was in fact no land link between Split, which was
15 capital, and that is because the Serb territory came down to an inlet by
16 Maslenica, and there wasn't a bridge there. Shortly after I arrived, a
17 bridge was built and the Serbs shelled it.
18 But in June of 1993, the country was divided. The way people had
19 to travel was either by boat, which is what I did on my first trip to
21 this area.
22 Q. And this particular situation was going on from 1991 certainly
23 until the 1995 period of time, by and large, was it not?
24 A. It got -- the answer, by and large, yes; but it did get better in
25 1993 with the opening of the Maslenica bridge, and it got better,
1 significantly better, I think, in 1994 after the cease-fire, which was
2 the first stage of the Z-4 process, the cease-fire of 29 March 1994.
3 Q. That's a practical matter -- I'm sorry, I got to take break.
4 JUDGE ORIE: Mr. Kehoe, I'm looking at the clock. It is a
5 quarter to 2.00. Perhaps we first ask the witness, Mr. Galbraith, I
6 should like to instruct you that you should not speak with anyone about
7 the testimony -- the testimony you have already given today or the
8 testimony still to be given in the days to come.
9 We will resume tomorrow morning at 9.00, and if I'm not mistaken,
10 in this same courtroom.
11 MR. KEHOE: Your Honour, I think the calender had us tomorrow
12 afternoon, in Courtroom II, unfortunately.
13 JUDGE ORIE: Then I'm not wrong on one front but on both,
14 Mr. Kehoe, that must be some conciliation to you.
15 Mr. Galbraith, we would like to see you back tomorrow in the
16 afternoon at 2.00 and in Courtroom III, as you -- no, II, Courtroom II -
17 now I am really making all the mistakes I can make - which is a far
18 smaller courtroom.
19 Mr. Usher, could you please escort Mr. Galbraith out of the
21 THE WITNESS: Your Honour. I just wanted to call your attention
22 to a scheduling issue. I don't know how long this is going to last, and
23 I am afraid I had assumed it was all morning sessions. But I have to
24 back with my children who are in Norway
25 wife is leaving the next morning and --
1 JUDGE ORIE: Yes. Well, one of the things why I asked Mr. Usher
2 to escort you out of the courtroom because that's what -- exactly what I
3 wanted to raise with the parties.
4 THE WITNESS: Okay. Thank you.
5 JUDGE ORIE: You will be informed as soon as possible, although
6 the unexpected now and then happens.
7 THE WITNESS: I understand that. Just if there is afternoon
8 sessions, it becomes harder, on Thursday. That's all.
9 JUDGE ORIE: Yes, I do understand.
10 [The witness withdrew]
11 [Trial Chamber confers]
12 JUDGE ORIE: Mr. Tieger, one short question to you. The Chamber
13 wondered whether what we heard over the last 15 minutes, whether when
14 we're talking about Greater Serbia, when we are talking about a lot of
15 other things, whether that was contested by the Defence, the role of --
16 most part of the role of Milosevic.
17 MR. TIEGER: Nothing that I heard, Your Honour.
18 JUDGE ORIE: Yes. That's one.
19 Mr. Kehoe, you raised the issue of relevance, time-frame,
20 territorial scope several times. Now we find ourselves in a situation
21 where you apparently have sought to elicit evidence from this witness
22 which is not contested in any way, certainly is mainly outside the scope,
23 the temporal scope of the indictment, and the geographical scope as well.
24 As I said before, background is background and should not become
25 foreground. So I'm not saying that you could not touch upon these issues
1 but, first of all, it would perhaps have been good to verify with
2 Mr. Tieger to what extent there is any major difference of view on -- on
3 the Greater Serbia idea, and it could of course mean that in the
4 follow-up that we get to the real core.
5 But when assessing how the time in cross-examination was used,
6 either at the end of the day tomorrow, or the day after that, the Chamber
7 certainly will take into consideration whether you started focussing on
8 the most vital points or whether we spent lots of time on background
9 rather on that what really is in the foreground of this case.
10 MR. KEHOE: Yes, Your Honour, and may I respond?
11 JUDGE ORIE: Yes, you may briefly respond.
12 MR. KEHOE: Yes. First, Your Honour, I was up for 15 minutes and
13 getting into this area, and this area was brought to the fore, which we
14 will develop, because it is quite clear that based on the testimony that
15 was elicited from this witness vis-a-vis Mr. Babic and those negotiations
16 in the first couple of day the of August of 1995, that the Prosecution is
17 trying to challenge the necessity for launching Operation Storm.
18 JUDGE ORIE: Is that true, Mr. Tieger? One necessity -- I always
19 thought that, as such, the military operation as such whether there would
20 have been other ways out, that that is not the issue in this case,
21 whether it was justified or not justified to regain Croatian territory.
22 Mr. Tieger.
23 MR. TIEGER: That position, Your Honour, as discussed earlier,
24 has not changed. Nevertheless, it is relevant and --
25 JUDGE ORIE: [Overlapping speakers] ... so whether it was
1 necessary or relevant, I mean, I do understand that that is not the
2 issue, although the witness has spent a few words, a few lines on -- in
3 his statement, to some extent a bit repetitiously, introduced again today
4 that there might have been other options still available at the 2nd or
5 3rd or 4th of August.
6 That's --
7 MR. KEHOE: Your Honour, if it was not a subject of debate, why
8 was it led in direct examination? Your Honour has been on the parties
9 about taking unnecessary issues that aren't on the table, and we spent 45
10 minutes talking about his negotiations with Babic and Tudjman.
11 JUDGE ORIE: I don't know whether that's a fair reflection of
12 what happened. The -- as I said before, background should be background.
13 It could well be, Mr. Kehoe, and therefore I'm expressing myself in a
14 cautious way, that where we have now the background that we get quickly
15 to the foreground. Nevertheless I would say that you were rather far
16 away from the conflict. At least Mr. Tieger stayed within the year
18 MR. KEHOE: Oh, two years, Judge, 199e and 1991.
19 JUDGE ORIE: Yes. He could not change the date of appointment of
20 Mr. -- Ambassador Galbraith.
21 MR. KEHOE: [Overlapping speakers] ...
22 JUDGE ORIE: The only thing that I would like to convey to you is
23 that it's the shared view of this Chamber that there is at least a risk
24 that you run out of time where the background has been fully illuminated
25 and the foreground not yet, and it's just for you to be aware that this
1 is the provisional impression of the Chamber.
2 MR. KEHOE: And, Your Honour, with all due respect, I have to
3 take issue with that, given the fact that the Chamber didn't stop the
4 Prosecution from going through an issue that they now say was not a
5 subject of debate, and that my issue, and given the fact that he was
6 going to go through that, was simply trying to answer that issue. That's
7 how I started with the ambassador.
8 JUDGE ORIE: Mr. Tieger, I'm not seeking, as a matter of fact to
9 have a full debate on this at this moment.
10 MR. TIEGER: I just want to clarify, Your Honour.
11 My response was in connection with matters raised earlier; that
12 is, the legal justification for launching Operation Storm and whether
13 that is at issue in this case. The intent behind is it another matter,
14 and to the extent that the information provided can be useful to the
15 Court in assessing the circumstances and to the extent that there was any
16 imminent prospect of peace and that was known to various people within
17 the region, I think the Court has already seen evidence from witnesses,
18 regular witnesses who were aware of that, it sheds light on all of that.
19 It is useful in -- in that way.
20 Now, this is a different story from whether or not the
21 Prosecution contests Slobodan Milosevic's role in the Krajina, and if --
22 to the extent that the Court inquired about the Prosecution's position in
23 connection with that, I think all parties are aware of that, in view of
24 the cases that have preceded this one.
25 JUDGE ORIE: Yes. Although I see quite some differences between
1 starting with the Greater Serbia issue or whether we focus on what
2 happened in the last days before Storm and the context in which, for
3 example, the issue, which apparently is a contested issue, who invited or
4 urged the Serb population to leave, or whether they were at all urged to
5 leave, and, if so, by whom, that appears to be all within the last couple
6 of day, weeks, months, perhaps.
7 Mr. Kehoe, I do see that you do not agree with me. The main
8 issue I wanted to raise is that if we're running out of time, that the
9 Chamber, on the basis of the observations, until now, sees that this is a
10 risk, and you have now convinced me there is only a small risk of not
11 having heard the foreground and have spent too much time on the
12 background. We're not going to discuss this at this moment any further.
13 Mr. Tieger.
14 MR. TIEGER: Sorry I didn't want to interrupt, I know we're
15 running out of time. I wanted to raise this issue before we adjourned
16 and that is I see from the schedule that we are currently expected to
17 have an afternoon session on Thursday. I wanted to bring that to the
18 attention of the Court.
19 JUDGE ORIE: Yes, if it can -- if that can be changed. If we
20 needed all the Thursday afternoon session.
21 Could I then inquire, and then I really stop, on how much time
22 the Defence teams would need?
23 MR. KEHOE: Yes, Your Honour, I'm going to play the audios of the
24 transcripts that you heard, and -- in part. That will take some time to
25 go through this and the various nuances that have been laid out. This is
1 a very, very extensive --
2 JUDGE ORIE: If you start with the explanation --
3 MR. KEHOE: [Overlapping speakers] ... I want Your Honour to
4 understand because I don't seem to be doing well the other way. When I
5 give you a time-frame without giving an idea of where I'm going, I don't
6 seem to be very successful, so I would like to tell exactly where I'm
7 going, and as I will tell you where I'm going on this Greater Serbia
8 issue, but I would say with what I am doing here will take me about six
10 JUDGE ORIE: Other Defence teams.
11 MR. KAY: If I do ask any questions, it wouldn't be more than 20
13 JUDGE ORIE: And then for the Markac Defence. Mr. Kuzmanovic.
14 MR. KUZMANOVIC: Your Honour, obviously it depends on what
15 happens before me, but two hours at least.
16 JUDGE ORIE: Two hours at least. We will consider it and have a
17 look at Thursday's session.
18 We stand adjourned until tomorrow afternoon, quarter past 2.00,
19 Courtroom II.
20 --- Whereupon the hearing adjourned at 1.57 p.m.
21 to be reconvened on Tuesday, the 24th day of June,
22 2008, at 2.15 p.m.