1 Monday, 23 February 2004

2 [Open session]

3 --- Upon commencing at 2.16 p.m.

4 [The accused entered court]

5 JUDGE ANTONETTI: [Interpretation] Mr. Registrar, can you please

6 call the case.

7 THE REGISTRAR: Your Honours, case number IT-01-47-T, the

8 Prosecutor versus Enver Hadzihasanovic and Amir Kubura.

9 JUDGE ANTONETTI: [Interpretation] Thank you, Mr. Registrar.

10 Appearances for the Prosecution, please.

11 MR. WITHOPF: Good afternoon, Your Honours. Good afternoon,

12 Counsel. For the Prosecution, Daryl Mundis, Ekkehard Withopf, and the

13 case manager, Kimberly Fleming.

14 JUDGE ANTONETTI: [Interpretation] Thank you, Mr. Withopf.

15 Defence counsel.

16 MS. RESIDOVIC: [Interpretation] Good afternoon, Your Honours.

17 Defence counsel for General Hadzihasanovic, Edina Residovic,

18 counsel; Stephane Bourgon, co-counsel; and Muriel Cauvin, legal

19 assistant. Thank you.

20 JUDGE ANTONETTI: [Interpretation] Thank you.

21 MR. IBRISIMOVIC: [Interpretation] Good afternoon, Your Honours.

22 Defence counsel for Mr. Kubura, Rodney Dixon, Fahrudin

23 Ibrisimovic, and Mr. Mulalic, legal assistant.

24 JUDGE ANTONETTI: [Interpretation] Thank you very much.

25 The Chamber would like to greet everybody present here in the

1 courtroom. We resume our proceedings. I would like to greet the

2 representatives of the Prosecution, the Defence counsel, and the accused.

3 I would also like to greet all the staff in the courtroom, interpreters,

4 representatives of the Registry, the usher, and everybody else.

5 We are supposed to continue hearing the witness that we heard on

6 Friday, but before that I would like to remind you of certain issues with

7 regard to the schedule. We said we would not be sitting on Tuesday and

8 that we would be sitting all day on Wednesday. There have been some

9 changes in the meantime. Tomorrow we do have a courtroom at our

10 disposal, so if the Prosecution is in the position to bring their

11 witnesses tomorrow, and if the Defence does not object to that, tomorrow

12 we can have a normal sitting at 14.15.

13 Mr. Withopf, would you have any problems with continuing our

14 proceedings tomorrow?

15 MR. WITHOPF: Mr. President, Your Honours, we can actually

16 reverse to the original schedule, which means that we will have one

17 witness available for tomorrow afternoon.

18 JUDGE ANTONETTI: [Interpretation] Thank you very much.

19 And now the Defence. I don't think that there will be any

20 problems. You will be here tomorrow, I presume. Very well, then.

21 Then we are going to proceed with the cross-examination of

22 Mr. Totic. I would kindly ask the usher to bring the witness into the

23 courtroom.

24 [The witness entered court]

25 JUDGE ANTONETTI: [Interpretation] Good afternoon, Mr. Totic. You

1 may be seated.

2 THE WITNESS: [Interpretation] Good afternoon.

3 JUDGE ANTONETTI: [Interpretation] You have been in The Hague for

4 almost five days. I hope that today's your last day. The

5 cross-examination will continue. In order to do that, I'm turning

6 towards the Defence, and the Defence, if they have new documents to

7 tender, can you please tell us what is the source of the document and

8 what is their purpose, if possible. So what is the purpose of these

9 documents and their relevance. That will save us some time.

10 And also, if you have those documents, can you please tender them

11 one by one, not all of them at a time. So if possible, can you please

12 tender your documents one at a time and can you provide us with all the

13 relevant information about the documents.

14 MS. RESIDOVIC: [Interpretation] Thank you very much. On Friday,

15 I showed a number of documents. And today I'm going to present to the

16 witness four more documents, as I've already told you.

17 And, Mr. President, since I have questions with regard to the

18 already identified documents, I would like to ask questions about those

19 first and then I will move on.

20 And before I begin, I would like to apologise to the Trial

21 Chamber. The document that I showed to the witness and that the witness

22 recognised as the document issued by Commander Tihomir Blaskic, marked as

23 DH45 ID due to technical error, when it was being copied, the three lines

24 are missing from the first page. Over the weekend, the Defence has come

25 across the complete order issued by Colonel Blaskic; and therefore, I

1 would like for the document DH45 ID be presented to the witness first,

2 and I would like the witness to identify this document as being the same,

3 because this new document contains the entire item 4.

4 We have provided the Chamber with the entire translation of the

5 order, and over the weekend we have also come across with the French

6 translation of this order and we would like to submit the French

7 translation of this order and we would like it to be given a number for

8 identification. So can the witness please be given the document DH45 ID,

9 and at the same time could the usher give the Croatian version of the

10 document which does not contain this technical error; i.e., where the

11 item 4 is complete.

12 Again, for the transcript, I would like to say that the

13 identified document in English contains the entire item 4. At the same

14 time, I would kindly ask the usher to give to the registrar the French

15 translation of this order so that this translation could be given a

16 number for identification.

17 Could the Croatian version be given to the witness so he may

18 compare this new version with the text that he was given on Friday and

19 that he recognised already as an order issued by Colonel Blaskic. The

20 error can be seen in the Croatian version, item 4. In the document that

21 we presented to the witness on Friday, the words after the words "after

22 the sector" are missing. The last three lines were lost in photocopying.

23 JUDGE ANTONETTI: [Interpretation] Mr. Totic, did you understand

24 what the problem is about? Last week the Defence has given you an order

25 signed by Colonel Blaskic. This text contains several items; however, in

1 the B/C/S version several lines are missing from item 4. The Defence

2 realised that over the weekend. They realised that three lines are

3 missing. That's why you are now being given a new copy of the same copy

4 and this new copy contains the lines that were missing from the previous

5 document.

6 Mrs. Residovic, you have the floor.

7 [Witness answered through interpreter]

8 Cross-examined by Ms. Residovic: [Continued]

9 Q. [Interpretation] Mr. Totic, do you recognise the order that you

10 were given by Colonel Blaskic on 16 January 1993?

11 A. Your Honour, I remember this order. There was indeed such an

12 order. I cannot tell you that this is the order, but it seems to me that

13 item 4 is something that was contained in the order. We're talking only

14 about item 4.

15 MS. RESIDOVIC: [Interpretation] Mr. President, since the witness

16 realises that there was a technical error and that the three lines are an

17 integral part of item 4, I would kindly ask for the document that was

18 previously identified to be replaced by the document that has just been

19 recognised by the witness.

20 JUDGE ANTONETTI: [Interpretation] Very well, then.

21 Mr. Registrar, the new document that we have now received in

22 B/C/S will be Exhibit DH45.

23 In addition to that, the Defence counsel has given us the same

24 document in French, and this document will be given number DH45/F. Can

25 you please confirm what I've just said, Mr. Registrar.

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1 THE REGISTRAR: Yes, I can confirm that. I will take out the old

2 version from the exhibits.

3 JUDGE ANTONETTI: [Interpretation] These documents have been

4 marked for identification, of course.

5 MS. RESIDOVIC: [Interpretation] Thank you very much.

6 Q. Mr. Totic, on Friday, I showed you some documents. Your order,

7 number 288/92 of the 24th of October, 1992, which was marked for

8 identification DH43 ID. I have shown you both versions, the B/C/S and

9 the English. I have also shown you an order by the police administration

10 dated 14 January 1993 signed by Valentin Coric and which was marked for

11 identification DH47 ID. I also showed you an order of the Main Staff of

12 the HVO, number 0166/93, dated 15 January 1993, signed by Milivoje

13 Petkovic, which was given identification number DH2; and finally, an

14 order of the Operative Zone Central Bosnia, that we have just sign; and

15 finally, I showed you an order of the command of the Jure Francetic

16 Brigade that you yourself signed, and that was marked for identification

17 DH40 ID.

18 MS. RESIDOVIC: [Interpretation] I would kindly ask the usher to

19 give the order DH45 to the witness. This order was signed by Tihomir

20 Blaskic. And also, DH46, an order signed by the witness. So can the

21 usher please give these two orders to the witness so that I could ask him

22 some questions about these two documents.

23 Q. Mr. Totic, is it correct that the order you issued on the 16th of

24 January, 1993 was issued pursuant to the order of the commander of the

25 Central Bosnia Operative Zone, Colonel Blaskic?

1 A. Yes.

2 Q. This order contained orders for all the HVO brigades and special

3 orders for certain brigades and the military police; is that correct?

4 A. I know that I got it. I don't know whether the others got it. I

5 suppose that all the addressees did receive it. I know that I received

6 it. I don't know about the other addressees, whether they received it or

7 not.

8 Q. You can tell who the addressees are.

9 A. Yes.

10 Q. In the order itself, you also see that it contains an order on

11 raising the level of combat readiness to the highest level.

12 A. Yes.

13 Q. In its item 2, the order required several things from all the

14 units: Firstly, under item 2 - can you please look at the lines - to

15 have only two shifts on the front line and the rest of the troops to be

16 in full combat readiness for interventions against Muslims. All the

17 Muslims that do not obey commands should be disarmed and isolated. The

18 troops from your brigade and the Nikola Subic Zrinski Brigade from

19 Busovaca were ordered to organise reconnaissance in the area of the

20 operation zone. Then the Stjepan Tomasevic Brigade was also given

21 orders. And under item 5, the 4th Battalion of the military police was

22 given the task to control traffic and to stop all the transport of

23 Muslims with arms, to seize the arms and put them at the disposal of the

24 HVO.

25 Does this order indeed contain all the things that I've just read

1 out?

2 A. Yes.

3 Q. You were fully aware of the totality of the order and of the fact

4 that the deadline for its execution was the 18th of January; is that

5 correct?

6 A. Yes, it is.

7 Q. Pursuant to this order, you knew that there was an order by the

8 Main Staff; is that correct?

9 A. Based on the order of the commander of the operation zone, I

10 could tell that he had received an order by the Main Staff of the HVO;

11 however, I didn't see this order.

12 Q. Mr. Totic, can you please look at your order, which was marked

13 for identification DH46 ID. Is it correct that in your order you also

14 requested units to raise the level of combat readiness to the highest

15 levels?

16 A. Yes.

17 Q. You also issued an order to the effect that all the Muslims who

18 did not obey orders should be disarmed and isolated and that you should

19 be informed about that urgently.

20 A. Yes, I did write that. But I would like to explain. In my

21 brigade, I had soldiers, Muslims, Bosniaks; however, none of them were

22 disarmed after this order. However, in the course of February and March

23 1993, a soldier, whose name is Dzemal Mahabasic in the town of Zenica

24 threw a grenade and injured a child and a woman. He was drunk at the

25 time. I gave him a prison sentence for 30 days, and after my exchange, I

1 happened to go there because there was a depot there and went to control.

2 I saw him there and asked him what he was doing there, and he told me

3 that he was a guard. I was astonished. I was -- allow me, please.

4 Allow me.

5 After that, in 1994, this same soldier raped or attempted to rape

6 somebody and then killed somebody. So he was already under sanctions. I

7 did issue this order, but nobody was disarmed.

8 Q. Very well. But we're still talking about January. So if there

9 are any other questions we want to put to you, I'd be grateful for

10 detailed information about such questions. Thank you.

11 MS. RESIDOVIC: [Interpretation] Could the witness now be shown a

12 map, the map that he himself has marked, marked for identification DH44

13 ID.

14 Could the witness hold on to his own order. Could you leave the

15 order that the witness issued on the 16th of January with the witness,

16 because the questions relate to his order and the map. DH46 ID and DH44

17 ID, could these two documents be shown to the witness.

18 Could you put the map on the ELMO so that we can all see it.

19 Q. Under item 3 of your order dated the 16th of January, would it be

20 correct to say that you ordered the organisation and monitoring of all

21 Muslim forces' movement? And could you please point out the following

22 areas on the ELMO: The Brdo-Cajdras-Vjetrenice access;

23 Brdo-Cajdras-Stranjani-Ovnak; Strajani-Ovnak-Radakovo-Lasva-Kaonik;

24 Gradisce-Topola-Kozarci-Lokvine-Lupac and Gornja Zenica.

25 A. Your Honours, didn't you ask me -- you didn't ask me to mark

1 Gradisce last time. It hasn't been marked here.

2 Q. I haven't seen it on the map, but if you know where it is

3 located, you can mark that site.

4 A. [Marks]

5 Q. You can mark it with the following number: For the sake of the

6 transcript, number 15 marks the location of Gradisce, according to the

7 witness.

8 Is it correct to say that under item 4 of that order you said

9 that if there was an organised -- if there was organised movement of the

10 Muslim forces all steps should be taken to stop them and all means should

11 be used to stop them?

12 A. Yes.

13 Q. Is it correct to say that in addition to the orders given to the

14 military police, whose task it was to intercept, disarm, and confiscate

15 all the weapons and equipment of BH army members, these orders

16 practically enabled you to surround the forces of the BH army in Zenica;

17 is that correct?

18 A. Yes, Your Honours, that is correct. But the BH army forces at

19 the time publicly said that they would use force to join up with the

20 forces in Uskoplje. I didn't order anything else. All I order was that

21 the BH army forces shouldn't pass through Croatian settlements. That is

22 all I ordered.

23 Q. Those Croatian orders -- those Croatian settlements are

24 settlements in Bosnia and Herzegovina, and the BH army is the legitimate

25 force there or was the legitimate force there.

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1 A. And the HVO was the legitimate force there too.

2 Q. The deadline to carry out this order was the 18th of January,

3 1993.

4 A. Yes.

5 Q. Your order, in fact, amounted to implementing the order of the

6 Main Staff of the 15th of January, according to which the forces of the

7 operative zone of Central Bosnia should have all the directions in

8 Central Bosnia blocked off, and it also meant executing the order of the

9 operative zone. It was provided to you, this order.

10 A. It was the execution of the commander of the operative zone, and

11 I was under him.

12 MS. RESIDOVIC: [Interpretation] Your Honours, since the map

13 represents a number of places and the witness himself has marked a number

14 of places on the map and these places are the sites where the crimes

15 alleged in the indictment were committed; and in addition, this map and

16 the orders mentioned are elements which are essential to established

17 command responsibility, especially the responsibility of commanders of a

18 very high rank, it has to do with the question of taking measures and

19 preventing crimes. This requires the establishment of a number of

20 elements. It also requires establishing the situation with regard to

21 combat operations in their area. So in my opinion, it is quite justified

22 to ask that all identified documents be admitted into evidence as

23 evidence for the Defence.

24 JUDGE ANTONETTI: [Interpretation] Before I let Mr. Withopf take

25 the floor, I have a few matters I would like to clarify. The order

1 issued by Colonel Blaskic was written at 11.40. Apparently this order

2 was forwarded to you by a messenger or courier. The order that you

3 obtained was at 17.45, the order you obtained on the same day. So the

4 order from Colonel Blaskic, you had it before 17.45.

5 THE WITNESS: [Interpretation] Your Honours, we wouldn't receive

6 the mail via courier. It was through packet communications. So this was

7 immediately processed.

8 JUDGE ANTONETTI: [Interpretation] Very well. The person who

9 drafted the order, it wasn't you yourself. It must have been someone

10 else who was within your headquarters and it was certainly a lawyer,

11 because it's a fairly precise document. You had to sign it. Can you

12 confirm that you drafted it or that someone else drafted it and that you

13 only signed it? What could you tell us about that?

14 THE WITNESS: [Interpretation] Your Honours, when this order was

15 issued, in addition to my regular duties I was performing duties of the

16 commander of Sector 2 for the Defence of Travnik. It was the

17 Lasva-Kamenjas-Vradinac [phoen] access. And that's where you link up

18 with the Ante Starcevic Brigade in Bugojno. The chief of the operations

19 organ prepared this order, the chief of the operations organ in the

20 brigade. He wasn't a lawyer. All orders are drafted in the operations

21 and training organ.

22 JUDGE ANTONETTI: [Interpretation] Very well. When we compare

23 your order and the one issued by your superior, there is an essential

24 difference which appeared in paragraph 4 of your order. You say that you

25 are ordering that all movement of Muslim forces be stopped, and in your

1 superior's order, in the order issued by your superior, it says that all

2 the Muslims who fail to obey orders should be disarmed, but the Muslims

3 who are within HVO formations; whereas, your order goes far beyond what

4 your superior's order states, because there it says that all the Muslim

5 forces should be disarmed. How can you explain the fact that your order

6 goes beyond what was ordered by your superior?

7 THE WITNESS: [Interpretation] Your Honours, this order doesn't go

8 beyond what was ordered by my superior, because under item 4 of my order

9 it says: "In the case of an organised movement of Muslim forces, use all

10 means at your disposal to stop them." So it mean that is the access that

11 have been marked, the roads in that area were obstructed. The purpose of

12 that order was to prevent an escalation of the conflict, to prevent

13 Muslim forces from passing through Croatian settlements which would have

14 frightened the people and the situation would have got out of hand. From

15 September -- in fact, even from August, the tension was increasing and

16 the conflict on the 20th of June in Novi Travnik and Vitez and in

17 Uskoplje; that is to say, in Prozor, on the 23rd and the 24th. We were

18 at the edge of a conflict at that time. The purpose was just to prevent

19 any further escalation. I wouldn't have been in a position to carry out

20 to disarming of the Muslim forces, because they were -- they were seven

21 times as strong as we were in Zenica. I could only try to prevent an

22 organised movement, and there was nothing else I could do.

23 JUDGE ANTONETTI: [Interpretation] Very well. My last question:

24 In your order in B/C/S - and it wasn't translated into English - your

25 order is 80 - 699. We can't see the number very well. This order seems

1 to be one of a series of orders. How do you explain that this order

2 doesn't mention above your title of commander of the Jure Francetic

3 Brigade the Republic of Bosnia and Herzegovina, which is what is

4 mentioned in your superior's order? Because your superior's order

5 contains the mention "The Republic of Bosnia and Herzegovina, the

6 Croatian Community of Herceg-Bosna, the Croatian Defence Council," et

7 cetera. And oddly enough, you don't refer to any of these items. It

8 comes directly from the command. All the orders that you sign, did they

9 always fail to mention the Republic of Bosnia and Herzegovina and the

10 Croatian Community of Herceg-Bosna? What can you tell us about this?

11 THE WITNESS: [Interpretation] Your Honours, this order was

12 drafted in accordance with instructions for issues combat orders. So

13 when I carried out orders -- when I issued orders, it wasn't necessary

14 for me to mention this. I only had to mark the number, state the level

15 of confidentiality, and say when it was issued and what the command post

16 was. And it was taken for granted that this is where the orders from

17 superiors would come from.

18 JUDGE ANTONETTI: [Interpretation] Very well.

19 Mr. Withopf, you wanted to comment on the Defence's question?

20 Yes, Mr. Withopf.

21 MR. WITHOPF: Thank you very much, Mr. President. The

22 Prosecution objects against tendering the map and the entirety of the

23 documents which have been marked for identification into evidence, and we

24 object for a number of reasons.

25 The October 1992 order, we cannot see any relevance, if at all;

1 that's at least our interpretation. The 16th January 1993 orders of

2 Blaskic and the order of the witness, if at all, they can be related to

3 the crime committed in Dusina, which was committed on the 26th of

4 January, 1993. The Prosecution made it clear in its pre-trial brief that

5 in relation to Dusina, since it's the first crime, the first in

6 chronological order, the accused Hadzihasanovic can only be held

7 criminally liable for failure to punish and not for failure to prevent.

8 The micro-military situation in the area of Zenica -- and if one

9 has a look at the map which has been marked for identification, it's

10 actually the wider area of Zenica and only, if at all, only a very

11 narrowed-down area is in any respect related to Dusina -- this situation

12 can't play any role in respect to failure to punish.

13 The map, the map itself, my learned colleague made the witness

14 identify 14 locations. Out of the 14 locations, there are only three

15 locations which appear - which appear - to some extent related to the

16 crimes which are incorporated in the indictment. Again, the Prosecution

17 fails to see the relevance of the map.

18 I also want to draw the attention of the Trial Chamber that the

19 witness last Friday, in respect to the Blaskic order, which is marked

20 with the number 45 for identification, actually challenged the signature

21 of Mr. Blaskic. Again, the Prosecution fails to understand and cannot

22 see the relevance of the entirety of all documents which Defence tries to

23 tender into evidence. We object against tendering such documents into

24 evidence.

25 JUDGE ANTONETTI: [Interpretation] Very well. We have taken note

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1 of your objection and we will rule on it, naturally.

2 The Prosecution [as interpreted] May proceed with its questions

3 relating to the documents.

4 MS. RESIDOVIC: [Interpretation] Your Honours, with your leave, I

5 would like to just say one thing about the relevance of the documents.

6 The map clearly shows the areas that have been referred to in the

7 indictment and to Ovnak, Zenica, Dusina, Lasva, which are also places

8 contained in the indictment, and therefore the map itself is relevant.

9 As far as other documents are concerned, especially the one that

10 my learned colleague from the Prosecution has referred to dated the 24th

11 of October, with regard to the theory and the jurisprudence of this Trial

12 Chamber, the modus operandi is one of the key issues that has to be

13 examined when determining command responsibility. And in the order that

14 this witness issued on the 24th of October, tasks are mentioned which

15 indicate that there are hostilities in relation to the army: Prevent the

16 BH army forces from passing through certain areas, Zenica -- Dusina,

17 Zenica, Ovnak. And then it says about taking up positions from

18 October -- the HVO had surrounded the majority of the forces of the BH

19 army in Zenica. And this has to do with all the activities of the

20 commander and will enable one to assess his capability of observing the

21 entire situation and finding out about certain events and taking certain

22 measures.

23 Since the decisions that this Tribunal has taken confirm that

24 this is a relevant matter, I stand by my suggestion, and the Trial

25 Chamber naturally will rule on the matter. We will respect its

1 decisions.

2 I will now carry on with my cross-examination.

3 Q. Mr. Totic, since you said that you are familiar with the entire

4 order issued by Colonel Blaskic and you are also familiar with the part

5 that related to the military police --

6 MS. RESIDOVIC: [Interpretation] Could the witness please be

7 shown document 0243077593 dated 21 of September [as interpreted], signed

8 by Pasko Ljubicic. We have a sufficient number of copies for the Trial

9 Chamber, for the Prosecution, and for the others present in the

10 courtroom.

11 Can we have a number for identification of this document, please.

12 JUDGE ANTONETTI: [Interpretation] Mr. Registrar, can you give us

13 an identification number, please.

14 THE REGISTRAR: Your Honours, the number will be DH48, marked for

15 identification for the B/C/S version; and DH48/E, marked for

16 identification for the English translation.

17 MS. RESIDOVIC: [Interpretation]

18 Q. Mr. Totic, this document, issued by the military police, does it

19 also arise from the same order, number 011184/93, which was issued by

20 Colonel Blaskic?

21 A. Yes, Your Honour, this document is referred to herein.

22 Q. In the transcript, there is an error. I said that the date of

23 this document is 20 January, and in line 2, on page 17, the date that is

24 indicated is 25 September, so I would like the date to be corrected for

25 the transcript. I believe that now the document has been fully

1 identified.

2 MS. RESIDOVIC: [Interpretation] And now can the witness be shown

3 the two following documents that this witness has assigned on the

4 following dates: 30 January 1993 and 2 February 1993.

5 At the same time, could both documents be given identification

6 numbers. I'm giving the witness two documents at the same time because

7 I'm going to be asking one or two questions that refer to both documents.

8 Q. Mr. Totic, did you issue the order on the 30th January 1993

9 titled "Sending unit to Busovaca"? And in this order, under item 1, you

10 order as follows: "The anti-sabotage unit of the Jure Francetic Brigade

11 should be sent to Busovaca in order to help the Zrinski Brigade," and the

12 aim was to carry out combat operations.

13 A. Your Honours, it is true that I issued this order. I don't know

14 which unit it was. This is not signed. I know that I sent some 40 or 50

15 troops for temporary assistance and only with defensive goals, not any

16 other goal.

17 MS. RESIDOVIC: [Interpretation] Can we please have an

18 identification number for this document.

19 JUDGE ANTONETTI: [Interpretation] Mr. Totic, can you please

20 explain -- this order bears your name and "SR," about in English and in

21 B/C/S. What does "SR" stand for? We don't see your signature.

22 THE WITNESS: [Interpretation] This means "in one's own hand." I

23 can't confirm exactly whether this order exists or not. I know that I

24 did issue such orders but not in this form. Whatever was sent through

25 confidential means could not be signed. However, the archived copies are

1 signed. I don't know whether an order did exist in this form or not. I

2 can't tell you. I remember that I did issue orders to that effect;

3 whether they were in this form, I can't remember at this point in time.

4 MS. RESIDOVIC: [Interpretation]

5 Q. So, Mr. Totic, it is not disputable that you sent some 50 of your

6 troops to Busovaca to assist the Zrinski Brigade in order to carry out

7 combat operations against the BH army.

8 A. Your Honours, this is correct. On the 23rd to 25th, about 8 and

9 5 thousand troops [as interpreted] of the BH army carried out an attack

10 from all directions on Busovaca. And the Busovaca Brigade had only 1700

11 troops to defend itself.

12 MS. RESIDOVIC: [Interpretation] Can we please have an

13 identification number for this document.

14 JUDGE ANTONETTI: [Interpretation] Very well, then.

15 Mr. Registrar, can we please have a number for identification,

16 the document that was sent on the 30th January by Mr. Totic. Can we

17 please have two numbers, one for the English version and one for the

18 B/C/S version.

19 THE REGISTRAR: Your Honours, the exhibit number for the B/C/S

20 version will be DH49, marked for identification; and the number for the

21 English version will be DH49/E, marked for identification.

22 MS. RESIDOVIC: [Interpretation]

23 Q. With regard to this document, Mr. Totic, can you tell me whether

24 you recognise the stamp on the document. The stamp contains the date and

25 the time when your order was dispatched.

1 A. This is not a stamp, Your Honours. This is just a seal which

2 existed in the communications department. I do not know this signature

3 and I can't say anything about it.

4 Q. Thank you very much.

5 Can you please look at your combat order, please.

6 JUDGE ANTONETTI: [Interpretation] Just a moment, please. We have

7 a problem here. The order was sent on the 30th January, and the time

8 indicated here is 1.15. This is on the left-hand side. And the seal

9 that we can see below, showing the words "HVO Vitez," one would say that

10 this document was received on the 30th January at 15.40 hours. So we

11 seem to be having some problems here. One would say, -- as a matter of

12 fact, no, I've been confused. Yes, the document was dispatched at 13.10

13 and received at 15.40. That's okay. You may proceed.

14 MS. RESIDOVIC: [Interpretation]

15 Q. Mr. Totic, in front of you you have your order 04/93, which was

16 sent to the commanders of the 1st and 2nd Battalions under the number

17 184/93, on the 2nd of February, 1993. Did you issue this order or not?

18 A. Yes, I did.

19 Q. This order orders the commanders of your battalions to send to

20 the Kuber [Realtime transcript read in error: Bugara] Sector where there

21 are some 50 or 60 troops, and that they should be linked up with the HVO

22 Vitez troops.

23 A. That is correct. In the Kubura Sector [as interpreted], I had

24 one platoon from 1992 onwards; and here I am ordering them to link up

25 with the adjacent unit.

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1 Q. Mr. Totic, you participate as a brigade from Zenica in the

2 activities of the HVO troops in Busovaca and Vitez; is that correct?

3 A. Your Honours, we did not encircle the BH army troops. We just

4 prevented any movements of the BH army and their transfer to Uskoplje and

5 Prozor, and further on towards Vitez and the Lasva Valley.

6 Q. Thank you very much.

7 MR. IBRISIMOVIC: [Interpretation] Mr. President, I believe that

8 we have an error calami in the transcript, page 20, line 20. It says:

9 "In the Kubura Sector." It should be the Kuber Sector.

10 JUDGE ANTONETTI: [Interpretation] Very well, then. So it is

11 Kuber sector.

12 MS. RESIDOVIC: [Interpretation]

13 Q. For the reasons I have stated a little while ago, these orders

14 permanently - up to the events in Dusina and even after that - determine

15 the activities of the commander of the 3rd Corps. I believe that these

16 are relevant documents and orders, and for that reason I would like to

17 tender these two orders, as well as the order of the military police,

18 which was an integral part of the attacks organised against the BH army,

19 into evidence.

20 JUDGE ANTONETTI: [Interpretation] Before I give the floor to

21 Mr. Withopf, I would like to summarise the objections put forth by the

22 Defence. The Defence believes that all these documents are relevant

23 because according to the Defence counsel they indicate that the HVO, and

24 primarily the Jure Francetic Brigade, started encircling the BH army

25 troops and encircled them completely. And since this constitutes a modus

1 operandi, and for that reason, these documents should be tendered into

2 evidence, and this is the essence of their arguments.

3 Mr. Withopf, you've heard the arguments put forth by the Defence

4 regard to the relevance of these documents. What can you tell us? What

5 are your observations with this regard? I have the impression that you

6 wanted to say something. You were on your feet. Have you understood the

7 position of the Defence? The Defence tells us that all these documents

8 should be tendered because they establish that the orders were issued and

9 the witness was in a very high military position, and that all these

10 orders were aimed at encircling the BH army. Since these documents prove

11 that there was an intent to encircle the BH army troops, these documents

12 should therefore be admitted into evidence. What can you say to that?

13 MR. WITHOPF: Mr. President, I understand you are summarising the

14 Defence position, and I have my doubts whether the witness actually

15 confirmed the Defence position, but that's a different issue.

16 The Prosecution objects, again, to tendering these documents into

17 evidence, again for a number of reasons: First of all, the Prosecution

18 is quite surprised for the reason that there is no dispute that from

19 January 1993 onwards until March 1994 there was a conflict between the

20 HVO and the ABiH in the area of Central Bosnia, including the areas which

21 have been addressed and which are covered by the documents Defence try to

22 tender into evidence. I refer to paragraph 26 of the Third Amended

23 Indictment.

24 In relation to the documents themselves, the document which has

25 been marked for identification under DH48 ID, the witness has only

1 confirmed what is written in the document. He has not even been asked

2 whether he ever has seen this order. The witness for that reason hasn't

3 said anything and hasn't testified to any extent in relation to this

4 document. For that only reason, it should not be tendered into evidence.

5 In relation to the document which is marked for identification

6 under DH49 ID, the witness actually challenged the authenticity of the

7 document.

8 And in relation to the witness -- to the document which is marked

9 for identification under DH50 ID, there is reference made to a location,

10 which is obviously a village with the name of Kuber. This village is not

11 marked in the map which has been given to the witness to identify certain

12 locations. Again, the Prosecution fails to understand and does not

13 understand the relevance of all such documents.

14 Defence must, in order to get these documents be tendered into

15 evidence, follow certain steps. And if they want to show - and that's

16 the interpretation of the Defence line - that the accused Hadzihasanovic

17 at the relevant point in time was too busy dealing with military matters

18 and, in brackets, the military matters addressed in this order appear to

19 be quite minor ones, if the Defence position is that the accused

20 Hadzihasanovic was too busy, then they must show in far more detail why

21 such movements of troops had an impact on the ability of the accused

22 Hadzihasanovic to punish the crime in Dusina.

23 For these varieties of reasons, the Prosecution objects against

24 tendering these documents into evidence.

25 MS. RESIDOVIC: [Interpretation] Mr. President, just a few words,

1 if I may.

2 The Third Amended indictment, under 39, clearly indicates that

3 the forces of the 3rd Corps - that is, the last sentence - "The killings

4 that were carried out after the attack on towns and villages were by the

5 troops of the 3rd Corps of Bosnia and Herzegovina." So in -- under item

6 39 and the item quoted by himself shows clearly what the position of the

7 BH army was. All the orders that have been presented speak to the

8 contrary.

9 Secondly, I would like to thank my learned friend, and I believe

10 that as a future Defence counsel he will be in a good position to analyse

11 the importance of documents tendered by the Defence. The documents speak

12 for themselves, and the Defence, when the time comes, if they are

13 tendered into evidence, will provide their analysis and significance from

14 the point of view of the defence of General Hadzihasanovic. Thank you

15 very much.

16 JUDGE ANTONETTI: [Interpretation] Yes. But I'd like to point out

17 that the witness should indicate the Kuber area on the map, because we

18 don't know where it is. So the witness has to be shown the map again so

19 that he can mark the site. He has the map?

20 MS. RESIDOVIC: [Interpretation] Your Honours, the witness has

21 marked "Kuber" on the map.

22 THE WITNESS: [Interpretation] Your Honour, there is no village

23 called Kuber. It's an elevation.

24 MS. RESIDOVIC: [Interpretation] And the witness has already

25 marked it.

1 JUDGE ANTONETTI: [Interpretation] Very well. Please carry on.

2 MS. RESIDOVIC: [Interpretation] Before I carry on, could the last

3 document be marked for identification. I would like to repeat the

4 Defence's suggestion, that these documents should be admitted into

5 evidence, the document dated the 2nd of February signed by the witness.

6 Could this document be marked for identification, please.

7 JUDGE ANTONETTI: [Interpretation] In the document dated the 2nd

8 of February and signed by the witness - and we can see the stamp of the

9 republic and his signature, and we see that the order mentions the

10 Republic of Bosnia and Herzegovina - there is also a reference made to

11 the Croatian Community of Herceg-Bosna. We need a number for the B/C/S

12 and English version, Mr. Registrar.

13 THE REGISTRAR: Your Honour, the number for the B/C/S version

14 will be DH50, marked for identification; and the number for the English

15 version will be DH50/E, marked for identification.

16 JUDGE ANTONETTI: [Interpretation] Thank you.

17 MS. RESIDOVIC: [Interpretation]

18 Q. Mr. Totic, we'll now go back to some other issues that you have

19 already spoken about to my learned colleagues from the Prosecution. You

20 said that in 1991 in December you finished a one-year training course in

21 the JNA; is that correct?

22 A. That's a high military school, and it lasts two years.

23 Q. After having completed that course, you received a certain rank,

24 the rank of second lieutenant.

25 A. Yes.

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1 Q. Then you were assigned to duties at the Bihac airport.

2 A. Yes. It was the engineers company in Bihac.

3 Q. After that school, you didn't continue with your education in the

4 army.

5 A. Yes. But I had previously worked for ten years as a

6 non-commissioned officer.

7 Q. I'm sorry, I haven't understood you correctly. So that was the

8 last school that you completed in the course of your military clear; is

9 that correct?

10 A. Yes, it is.

11 Q. You never graduated from the military academy; is that correct?

12 A. Yes, that's right.

13 Q. The rank of a non-commissioned officer which you received at the

14 time was in fact a rank which was the first officer's rank in the former

15 JNA -- or, rather, it was the lowest rank of an officer in the JNA.

16 A. Yes, it's the first rank that an officer can obtain.

17 Q. Before that, your experience in the JNA was experience you had

18 gained as a non-commissioned officer.

19 A. Yes.

20 Q. Your specialty is engineering; isn't that correct?

21 A. Yes.

22 Q. In the Bihac -- at the Bihac airport, you were assigned as a

23 platoon commander, and you were in charge of about 100 soldiers.

24 A. I was the commander of the 2nd Engineer's Company, and there were

25 about 120, 150 men in it.

1 Q. Your task was to provide engineering security for the airport

2 with that company of 100 or 150 men; is that correct?

3 A. No, it wasn't to provide engineering support -- it was to provide

4 engineering support in the zone of responsibility of the airport.

5 Q. You never finished the staff school for officer; isn't that

6 correct?

7 A. That's correct.

8 Q. Up until the war, apart from being involved in engineering, you

9 weren't involved in strategy or in sabotage operations; is that correct?

10 A. No. But if you take into consideration the engineers and its

11 composition, its composition included certain specialties, for example

12 explosives, booby-traps, and reconnaissance units. So this was included

13 in the training.

14 Q. You said that you had the rank of a brigadier. That's not a

15 general.

16 A. No, it isn't. That's the rank of a brigadier.

17 Q. You obtained that rank thanks to the fact that you participated

18 in the war and you performed certain military and political duties in the

19 course of the war.

20 A. Only military duties. I didn't perform political duties of any

21 kind.

22 Q. So your rank or, rather, your profession didn't correspond to

23 your military education, because you couldn't have obtained that rank in

24 the former JNA, given the schooling that you had completed.

25 A. Your Honours, in fact 95 per cent of officers in the Federation

1 army in fact have no qualifications. In order to be a general, you

2 require certain qualifications. You need a Ph.D. sometimes. We have a

3 lot of generals, nevertheless.

4 Q. Thank you. In response to a question from the Prosecution and

5 also in response to my questions, you said that the Municipal Staff of

6 the HVO in Zenica became the brigade staff in a certain period when it

7 was being reorganised.

8 A. The command of the brigade, from the 4th to the 18th of December.

9 Q. In December, a solemn oath was taken in the brigade; is that

10 correct?

11 A. Yes.

12 Q. This oath was attended by -- taking this oath was attended by

13 Dario Kordic, Colonel Blaskic, and other prominent people, for example,

14 army representatives.

15 A. Yes.

16 Q. The soldiers who were taking their oaths were also addressed by

17 Dario Kordic. You addressed them, as the commander; as well as Tihomir

18 Blaskic, as the commander of the operative zone. Is that correct?

19 A. As far as I can remember, yes.

20 MS. RESIDOVIC: [Interpretation] Could the witness now be shown an

21 extract from the magazine called "Bojovnik," combatant, dated December

22 1992, and it relates to the addresses of the persons mentioned. In the

23 course of our investigations, we found the texts in the Kordic case. It

24 was also shown to the witness in that case. And in accordance with the

25 instructions issued by the Trial Chamber, the parts that we will be

1 showing to the witness have been translated into French as well as into

2 English.

3 Q. Mr. Totic, you know that "Bojovnik" was a magazine from the

4 Croatian Community of Herceg-Bosna, the Zenica HVO; isn't that correct?

5 A. Yes.

6 Q. Would it be correct to say that Mr. Dario Kordic, when addressing

7 the soldiers, did so in Zenica? He addressed them in Zenica?

8 A. Your Honours, I know that he addressed the soldiers, but I really

9 don't know what was said by the various people present at the time.

10 Q. I'll remind you. According to the magazine that you've already

11 been shown, Dario Kordic said, "It's a great pleasure for me to be

12 present here today and in such numbers. I'm glad that we are on Croatian

13 territory, on the unified territory of the Croatian Community of

14 Herceg-Bosna. The Croatian territory of Zenica was Croatian and still is

15 Croatian and it will remain Croatian territory. This will be the

16 Croatian Community of Herceg-Bosna, regardless of whether people like

17 this or not." Do you remember Dario Kordic saying these words at that

18 ceremony?

19 A. Your Honours, I remember what Dario Kordic said on that occasion,

20 so that was his address. I can't confirm that those were his exact

21 words, but the Croatian Community of Herceg-Bosna, who is bothered by the

22 existence of this community in that territory.

23 Q. Mr. Totic, did you too address your soldiers on that occasion?

24 A. Yes.

25 Q. I'm now referring to what it says beneath the words "the

1 commander of the staff." Did you say: "We have taken the solemn oath

2 within the brigade, whose name is Jure Francetic. All those who don't

3 like this holy name, well, I would like to tell them that Jure Francetic,

4 who was a Croatian knight, fought with the Serbs in the solemn war. In

5 the Second World War, he protected the Croatian and Bosnian people and

6 expelled the Chetniks from Romanija and the left bank of the Drina." As

7 he has -- follows [as interpreted], "there is nothing that we want." Is

8 that what you said at the time?

9 A. I said something in effect to that. But all I did was refer to

10 his military skills.

11 Q. You - and that's my case too - you know from history, from what

12 we learned about history. But I won't refer to what we know, I'll refer

13 to a Croatian TV programme. In the 313th series of "Latinica" by Denis

14 Latin dated the 16th of February, 2004, it says that Francetic Jure was

15 born in 912 [as interpreted], and that in the independent state of

16 Croatia he was assigned as the commander of Eastern Croatia with its

17 basis in Sarajevo. And towards the end of 1941 he created -- founded the

18 Black League. And on the Internet there are numerous articles which

19 refer to the Black League and say it was founded -- and it imitated the

20 SS troops.

21 MR. WITHOPF: Mr. President, I object against such a line of

22 questioning. The Prosecution can't see the relevance of the historical

23 explanation and irrespective whether it's true or not, of the historical

24 explanation of the name that has given the brigade the witness commanded

25 at the time. Defence may please explain the relevance of such line of

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1 questioning.

2 JUDGE ANTONETTI: [Interpretation] Yes. With regard to the

3 relevance, could you tell the Trial Chamber what the relevance is.

4 MS. RESIDOVIC: [Interpretation] Mr. President, the reason for

5 making these references is that the witness said that we were dealing

6 with a Croatian knight. And in the course of its cross-examination,

7 counsel can try to discredit the witness by asking him questions. Since

8 his brigade had been called after a well-known person in charge of the

9 Black League in Bosnia and Herzegovina, responsible for many crimes

10 committed against the Serbian and Jewish and anti-fascist peoples,

11 including the Croatian and Muslim ones, I think that it is important for

12 this reason to admit this fact as evidence that could discredit the

13 witness.

14 And secondly, we would like to tender this document into

15 evidence.

16 In 1992, this man, together with Ante Pavelic, was received by

17 Adolf Hitler. And in the Second World War, his crimes were very well

18 known. And for these reasons, in order to discredit this witness, we

19 suggest that this be admitted into evidence. And the words of Dario

20 Kordic, as well as the words of this witness, quite clearly indicate the

21 position that the BH army was in when all this was said in the centre of

22 Zenica. And according to what the witness himself said at the time, the

23 centre was over 80 per cent Bosniak.

24 And finally, these are the words of a man who has spoken about a

25 man who has denied Bosnia and Herzegovina as a state and denied the

1 existence of the Bosniak people as a people.

2 MR. WITHOPF: Mr. President, may I please briefly respond?

3 Mr. President, Your Honours, this goes far, far beyond the scope

4 of any relevance, and Defence may please ask the witness whether he has

5 chosen the name of the brigade he commanded at the time. And if Defence

6 wishes to follow up this line and if the Chamber is inclined to grant

7 leave for Defence to follow up this line of questioning, any evidential

8 value can only be based on the independent assessment of an expert, an

9 historical expert, who can judge on these issues.

10 The Defence is trying to introduce in this trial historical

11 facts, and nobody knows whether they are true or not. At least for the

12 time being, without having laid any basis for this line of questioning -

13 and the basis can only be laid by an expert on the very same issues -

14 Defence should not be allowed to continue with this line of questioning.

15 The Prosecution objects, and the Prosecution strongly suggests that the

16 Trial Chamber rules on this issue prior to giving Defence a chance to

17 continue this line of questioning.

18 MS. RESIDOVIC: [Interpretation] Mr. President -- Mr. President.

19 JUDGE ANTONETTI: [Interpretation] Very well, then. We are first

20 going to have a break, and we will discuss this issue and render our

21 decision.

22 Let me sum up. Your question to the witness was whether he knows

23 who Francetic actually was and that was the main objective of your

24 question. Am I right?

25 MS. RESIDOVIC: [Interpretation] Yes. The witness mentioned him,

1 and then I asked the witness whether that person was what I said he was,

2 and the witness reacted.

3 Your Honours, we are tendering this into evidence only to go for

4 the credibility of the witness, and this will actually complete my

5 cross-examination.

6 And before that, can we please have a number for the

7 identification of this document?

8 JUDGE ANTONETTI: [Interpretation] Very well, then. We are going

9 to give you our answer after the break. It is twenty to 4.00. We shall

10 resume at five past 4.00.

11 --- Recess taken at 3.40 p.m.

12 --- On resuming at 4.12 p.m.

13 JUDGE ANTONETTI: [Interpretation] Very well. We continue our

14 hearing.

15 As far as the admission of documents is concerned - and we are

16 talking about the article from "Bojovnik."

17 After having deliberated, Trial Chamber comes to the following

18 decision: It will not be admitted into evidence in view of the fact that

19 the document does not go as to the credibility of the witness.

20 The Trial Chamber would like to stress the following fact: The

21 credibility of a witness cannot challenged based on historical facts

22 which go back in time and precede the period during which the events in

23 the indictment took place. For that reason, this document is not going

24 to be admitted into evidence.

25 The Trial Chamber also would like to underline the following:

1 Regarding the questions that have been put to the witness, the Trial

2 Chamber does not try the HVO or members of the HVO. So the Defence may

3 put questions to a former member of the HVO under the following

4 conditions: These questions have to concern only the relevant military

5 aspect and the questions that concern the fact that the witness was an

6 eyewitness to.

7 In conclusion, I would like to repeat: This document is not

8 going to be admitted into evidence. As far as the other documents are

9 concerned, they have been marked for identification, and the Trial

10 Chamber will make a decision about these documents subsequently, in

11 keeping with what we are going to hear from other witnesses or based on

12 new evidence.

13 I am now turning to the other Defence counsel. Does the Defence

14 counsel for Mr. Kubura want to cross-examine Mr. Totic?

15 MR. IBRISIMOVIC: [Interpretation] Mr. President, we do have some

16 questions for Mr. Totic. Our cross-examination will concern only what

17 the witness said on his examination-in-chief last Friday.

18 Cross-examined by Mr. Ibrisimovic:

19 Q. [Interpretation] Mr. Totic, during your stay in Zenica, in the

20 course of 1992 and 1993, while you were a member of the Main Staff of the

21 HVO and a brigade commander, you did not have an opportunity to meet --

22 officially meet Mr. Kubura; is that correct?

23 A. Your Honours, I did not know Brigadier Kubura in 1992 or 1993.

24 Maybe I may have met him in 1997 if he was a member of the federation

25 army. I may have seen him as a meeting. But I can't be sure even of

1 that. I've never spoken to him. I have never officially met him.

2 Q. During your examination-in-chief, on two occasions, on Friday you

3 said before this Trial Chamber that you do not have enough information

4 about the 7th Muslim Brigade in 1992 and 1993; is that correct?

5 A. Your Honours, that is correct. It is correct that I stated that.

6 We did not have much information. I only know that it originated from

7 the Muslim forces.

8 Q. During your stay in Zenica up to April 1993, you were never in

9 the staff of the 7th Muslim Brigade; is that correct?

10 A. Yes, it is. I was never there.

11 Q. You did not have an opportunity to meet with any other officer of

12 the 7th Muslim Brigade during that period of time.

13 A. No, I never met any of them. All I know, according to the

14 information that I had, is that Mr. Kubura was its commander. However,

15 according to some rumours, there were other more influential people

16 there.

17 Q. You also said on Friday that you had testified in the Kordic case

18 as a Defence witness; is that correct?

19 A. Yes, it is.

20 Q. You spoke about some problems that arose from the insignia worn

21 by the HVO; is that correct?

22 A. I don't know what context was that part of.

23 Q. You were presented an order that you issued on the 9th of

24 February, 1993, when pursuant to this order all the insignia that did not

25 indicate the affiliation with the HVO should be removed from the uniforms

1 of the HVO.

2 A. Your Honours, that is true; I issued that order pursuant to the

3 order of the commander of the Central Bosnia Operative Zone, and the aim

4 was for all the soldiers of the HVO to be forced to remove insignia from

5 their uniform that would point to anything that was not in keeping with

6 the times and the period that we lived in -- old insignia that would be

7 -- that could be associated with the past.

8 Q. On that occasion, you gave an explanation to the Trial Chamber,

9 and you said that it was very popular at the time, that it was a fad to

10 wear all sorts of insignia; is that correct?

11 A. Yes.

12 Q. Can you confirm that this was also popular with the members of

13 the BH army?

14 A. I cannot deny that.

15 Q. During the examination-in-chief, you described the insignia of

16 the 7th Muslim Brigade and you recognised it in the exhibit presented to

17 you by the Prosecution.

18 A. Yes.

19 Q. The insignia bear the name of the 7th Muslim Brigade, and there's

20 also an Arabic inscription; is that correct?

21 A. Yes.

22 Q. Bearing in mind your professional experience working in the army

23 for over 30 years, from the year 1974 when you started your military

24 education, and then you continued working with the troops, and then in

25 the war you were a brigade commander, can you agree with me that in order

1 for you to recognise whether a soldier belongs to a unit such a soldier

2 has to wear all the proper insignia? That is the only way you can be

3 sure of the fact that a soldier belongs to a certain unit.

4 A. Your Honours, in order to be absolutely sure, the soldier has to

5 wear all the legal insignia. The 7th Muslim Brigade - and it's insignia

6 that was recognised here - based on that, one could recognise the unit.

7 It is to be assumed that the Muslim -- that the 7th Brigade was part of

8 the BH army.

9 Q. Can you agree with me if there are no proper identified --

10 insignia to identify a soldier and his affiliation, you cannot be sure of

11 the soldier's affiliation to any unit? Can you agree with that?

12 A. Yes, more or less I can.

13 Q. Thank you very much.

14 MR. IBRISIMOVIC: [Interpretation] We have no further questions.

15 JUDGE ANTONETTI: [Interpretation] I have just a short question

16 for clarification of a military matter.

17 Questioned by the Court:

18 JUDGE ANTONETTI: [Interpretation] You have testified that you had

19 a Department for Intelligence, an intelligence unit within your brigade.

20 Can you please tell us whether within your zone there was an Intelligence

21 Department or section. Did you have such a thing at your disposal?

22 A. Your Honours, every brigade has a Department for Intelligence,

23 and this department is headed by the intelligence officer who is the head

24 of that department. And all the information that I received came from

25 the Chief of Intelligence, who was a member of the brigade. As for the

1 first units of Muslim forces, I learned about them from the Chief of

2 Intelligence.

3 The first time I ever saw these insignia was in July or August

4 1992 in the Pasinac Sector. The HVO, the 2nd Battalion, had its camp

5 there. Immediately after that, some 15 or 20 days later, a Territorial

6 Defence unit was positioned some 6 or 7 hundred metres as the crow flies

7 from that camp. At that time, from a vehicle I saw people with the

8 insignia of Muslim brigades. That was the first time I saw them. They

9 were mixed with the people who were members of the Territorial Defence.

10 The second time I saw people wearing the insignia of Muslim

11 forces was when I commanded the Sector 2 for the defence of Travnik. In

12 one part, in front of the front line there were two Muslim villages,

13 Bijelo Buce and Pulac. And every evening I would open the front line in

14 order to let the BH army troops through those places. They didn't want

15 to leave those villages, or they were between the two front lines,

16 between the Serb forces on the one hand, and the HVO on the other hand.

17 In November 1992, for the second time I saw the insignia of

18 Muslim forces on people wearing them. And later on, in 1993, this was a

19 common sight. So we knew that in every village there was at least one

20 platoon of Muslim forces.

21 There are also some very bad experiences with these Muslim

22 forces. For example, in the place where I was born, the BH army forces,

23 if they captured somebody, they would hide those Croats in their houses

24 and they were afraid that somebody from the Muslim forces would hear

25 about them, because in that case they would have to execute them. There

1 are Croat people who survived owing to the solidarity of the local Muslim

2 population, who prevented their execution. They didn't want to hand them

3 over to members of the Muslim forces. And that's how these people

4 survived.

5 JUDGE ANTONETTI: [Interpretation] Very well, then. You also

6 indicated that you had an officer for intelligence in your brigade. Tell

7 us, did this department intercept telephone conversations of other units,

8 or was it just intelligence based on surveillance, monitoring, and

9 conveying things that they happened to hear by chance? Did this unit

10 have any kind of logistics that would enable it to intercept telephone

11 conversations?

12 A. Your Honours, the intelligence unit in the brigades was not

13 technically equipped for interception. It was done at higher levels, at

14 the operative zone level and higher levels. Within the brigade, the

15 intelligence department had a platoon that consisted of some 50 to 70

16 men.

17 JUDGE ANTONETTI: [Interpretation] Thank you.

18 I am giving the floor to Mr. Withopf for re-examination of this

19 witness.

20 MR. WITHOPF: Thank you very much, Mr. President. The

21 re-examination will actually be quite brief.

22 Re-examined by Mr. Withopf:

23 Q. Mr. Totic, asked on Friday by my learned colleague on the Defence

24 side at the very beginning of the cross-examination, you said - and

25 that's page 43, lines 2 to 14 of the Friday's transcript - you said that

1 "At the beginning of the war, between 35.000 and 40.000 Muslims from

2 Eastern Bosnia and Krajina arrived in Zenica." And in answering the

3 respective question of my learned colleague whether these people were

4 mainly Muslims or Bosniaks, you confirmed that "About 90 per cent of the

5 refugees were Muslims or Bosniaks."

6 To your knowledge, within the 35.000 to 40.000 Muslims arriving

7 from Eastern Bosnia and the Krajina, were there also men of military age?

8 A. Your Honours, there were able-bodied men among those people, and

9 from the territory of Western Bosnia only, after the fall of Jajce,

10 towards the end of October 1992. With these people, the 305th Mountain

11 Brigade came together with the refugees, which was later on incorporated

12 in the 3rd Corps. Their command post was in Biljesovo, near Zenica.

13 Also, in 1991, near the territory of Central Bosnia, the

14 17th Krajina Brigade was deployed, which consisted mostly of people from

15 Bosanska Krajina, of people who were able-bodied. Some of them had even

16 completed military training and were armed in the Borongaj barracks in

17 Zagreb in Croatia, and they came in Travnik. So these were people who

18 were not locals but they operated and played a significant role in the

19 operations of the 3rd Corps in Central Bosnia.

20 Q. You basically answered the question, Mr. Totic. Within the

21 35.000 to 40.000 refugees, to your knowledge, did a significant number -

22 and if you know in rough terms of the number, can you please tell the

23 Trial Chamber how many of such refugees became members of the ABiH 3rd

24 Corps?

25 A. Your Honours, I cannot say that for a fact, but at least two

1 brigades were formed of these people, the 305th and the 17th Krajina

2 Brigade.

3 Q. And at the time and in the area of Bosnia and Herzegovina, of how

4 many troops was a brigade comprised of?

5 A. It depended on the type of the brigade, but it ranged from 1900

6 to 3500 men, and most often 2.700. And that was at least what the

7 situation was in the organisation of the HVO brigades.

8 Q. In answering a question put to you by my learned colleague today,

9 you were saying that the ABiH was seven times as strong as the HVO. Does

10 this also apply for the area of the 3rd Corps in 1993?

11 A. I believe that the ratio was 1 to 8 for the zone of the

12 3rd Corps.

13 Q. In favour of the ABiH?

14 A. In favour of the BiH army, yes.

15 Q. Thank you very much, Mr. Totic.

16 MR. WITHOPF: This concludes the re-examination of this witness.

17 JUDGE ANTONETTI: [Interpretation] Mr. Totic, you have spent five

18 days in The Hague. You have testified for two entire days. You have

19 answered the Prosecutor's questions, then the Defence questions. You

20 have also answered questions put to you by the Trial Chamber. Thank you

21 for coming to testify. Your testimony is going to help us arrive at the

22 truth about these events. Thank you very much. We wish you a happy

23 journey back home.

24 I am kindly asking the usher to take you out of the courtroom.

25 THE WITNESS: [Interpretation] Thank you very much, Your Honours.

1 [The witness withdrew]

2 JUDGE ANTONETTI: [Interpretation] Mr. Withopf -- before I give

3 you the floor, Mr. Bourgon would like the floor.

4 MR. BOURGON: [Interpretation] Thank you, Your Honour. With your

5 permission, I would like to address the Trial Chamber with regard to the

6 decision on the admissibility of certain documents that have been used in

7 the cross-examination of Mr. Totic.

8 Mr. President, the objection of my observation is for the

9 clarification of the procedure with regard to the admission of documents,

10 especially those documents that may be considered admissible.

11 I would like to start with your decision rendered on the 17th of

12 February, and I would like to present the views of the Defence. The way

13 we understood your decision, the Trial Chamber said that it is up to both

14 sides to determine in advance the relevance of any document and then that

15 the relevance is based on the facts and information that may be presented

16 by a witness, that the relevance can also be based on military,

17 political, and historical facts from the period. You also said that the

18 Trial Chamber wants to adopt a general interpretation of the

19 admissibility of documents and that the only exception is when the

20 authenticity of a document is contested. And if such a document is

21 contested, then the side who tenders a document for admission has to

22 confirm its authenticity.

23 When rendering this document, the Trial Chamber has also

24 mentioned the context which is different for an expert witness and for a

25 factual witness. And you said that for an expert witness that the side

1 has to submit the written document in advance and also the Trial Chamber

2 has asked both sides to present a list of the contested documents and

3 also list the documents that will be used during cross-examination.

4 The position of the Defence today is as follows: We believe that

5 it is very important for the Trial Chamber to, at the moment when we ask

6 for a document to be admitted, that at that moment the Trial Chamber

7 should render its decision on the admissibility of a document. If the

8 decision rendered by the Trial Chamber on the 17th February is still

9 valid, then we believe that if the document is relevant the Trial Chamber

10 has to state whether a document is admissible or not.

11 In the case that we are facing today - and I am referring to the

12 decision that you rendered earlier on today, when you said that a

13 decision on the admissibility of certain documents will be made

14 subsequently - amongst those documents was a geographic map on which the

15 witness marked certain places and numbered them. In addition to that,

16 the witness pointed to certain regions on the map, and the map itself is

17 the map of the general area of Zenica, that is, villages and hamlets

18 around Zenica.

19 During the cross-examination led by my colleague, we heard

20 answers that spoke of the relevance of this document with regard to the

21 orders issued by today's witness. He explained what the purpose of the

22 orders was and where they stemmed from and what was the military context

23 within which those orders were issued in the period from January 1993

24 onwards.

25 Your Honours, we believe that all the documents that originate

1 from the Main Staff of the HVO -- documents that were issued by General

2 Petkovic, who was General Blaskic's superior, then documents issued by

3 General Blaskic and sent to Brigadier Tokic [phoen], followed by the

4 orders issued by Totic, several of them -- those orders were then

5 conveyed to subordinate units. I'm talking about documents DH43. These

6 are documents issued by the military police and orders giving certain,

7 very precise tasks to the military police.

8 I would like to emphasise the following: All these documents

9 describe the context within which the parties acted, and this context,

10 contrary to what has been stated by the Prosecutor, the purpose was not

11 to prove that the accused was preoccupied with certain things in order to

12 prevent crimes and punishing criminals. This was not the purpose. The

13 main purpose was our wish to describe for the Trial Chamber the context

14 within which the accused acted, within which he was forced to make

15 decisions, the context in which the events happened. And he has been

16 charged with certain things that happened at that time. Only if you're

17 aware of the context you may judge whether he is guilty or not. He was

18 on the ground. He commanded the corps. And you already know that he had

19 a large number of troops under him. And that's why we believe it is very

20 important for the Trial Chamber to be well informed about the context.

21 This is our approach, and has been from the very beginning. We

22 have never departed from that approach, from our pre-trial brief to this

23 very day. And in that sense, we have asked the Trial Chamber to take

24 into account some adjudicated facts.

25 All this are elements which we consider that have to be taken

1 into account by the Trial Chamber when rendering certain decisions.

2 And in conclusion, Mr. President, I would like to address the

3 issue of procedure that we have to adopt. One thing we have to be clear

4 on. With your permission, I would like to tell you what exactly has been

5 happening before the trial -- before this Tribunal.

6 In the Tadic case in 1995 - this was the first trial that was

7 ever conducted before this International Tribunal - at that time, the

8 procedure for admitting documents into evidence was similar to the

9 procedure in the Anglo-Saxon system, which means that documents were

10 admitted through witnesses. Every time the witness had to recognise and

11 confirm the authenticity of the document, and this dealt with the

12 authenticity and the relevance of any document.

13 The decision was rendered immediately as to whether such a

14 document would be admitted or not, and if such a document was admitted,

15 then the document was identified.

16 However, the position of the Defence is that if a document is

17 only marked for identification purposes, that means nothing. That only

18 means that the document will be held by the registrar until the moment

19 its lot is dealt with. In the meantime, the procedure has changed. In

20 the later cases, in order to speed up the procedure, there have been some

21 changes. For example, in the Simic case, all the documents were admitted

22 into evidence during the pre-trial procedure, before the trial itself,

23 and then the Trial Chamber decided that if none of the witnesses

24 confirmed the existence of a certain document or if they didn't present

25 further information on this document, then these documents were not

1 considered to have any probative value.

2 Another example: In the Blaskic case, towards the end of the

3 procedure, the Trial Chamber allowed both sides to deliver and submit

4 documents which were not tendered through witnesses, and then it was up

5 to the Trial Chamber to determine the probative value.

6 If you look at the Rules of Procedure and Evidence, you will see

7 that there are very few rules on admission of exhibits into evidence. In

8 any case, Rule 89 is the Rule of the uttermost significance. It says if

9 a document is relevant it may be admitted, and it's up to the Trial

10 Chamber to determine its probative value, and this can be done even

11 without a witness .

12 For example, we can draw a parallel here: The second-hand

13 evidence. You are going to hear a witness who is going to be -- give you

14 secondhand testimony. The rule of this Tribunal is to admit hearsay,

15 despite the fact that the person who said something to the witness is not

16 known. So even if we are dealing with hearsay, this is admitted as

17 evidence. The Trial Chamber here admits hearsay evidence and considers

18 it relevant.

19 With all due respect, Your Honours, we ask from the Trial Chamber

20 to explain the procedure to us. Is the Trial Chamber going to continue

21 working in the following way, and that is documents will be tendered

22 through witnesses, or the Trial Chamber is going to adopt a procedure

23 which is going to be somewhat closer and somewhat more similar that was

24 adopted in some other cases? The Defence is prepared to accept any

25 decision rendered by the Trial Chamber, but we believe that we should be

1 better informed of the position of the Trial Chamber and what the Trial

2 Chamber believes needs to be done in respect of the admissibility of

3 documents.

4 JUDGE ANTONETTI: [Interpretation] Thank you. Thank you,

5 Mr. Bourgon, for your comments. We've been aware of the problem from the

6 very beginning. You have quite rightly said that the procedure before

7 this Tribunal has differed. You mentioned the Tadic case, and the

8 procedure followed in that case was very similar to the common-law

9 procedure. One would tender a document into evidence through a witness.

10 And you pointed out that in another case, the Simic case, all the

11 documents had been tendered into evidence in the pre-trial stage. And

12 then the third procedure adopted concerned the Blaskic case, in which

13 documents were filed.

14 These three manners of proceeding are naturally interesting and

15 are not in question for the Trial Chamber. They are recognised by the

16 Trial Chamber. It is for the parties to decide as to what the best way

17 of presenting its argument would be and to see at what point in time they

18 should tender a document into evidence.

19 For the moment, we haven't obstructed your manner of proceeding.

20 We have admitted almost all the documents. It seems that you are

21 somewhat concerned about the documents that have been marked for

22 identification, and a minute ago you mentioned a particular example;

23 namely, the map.

24 When we mark a document for identification, the Trial Chamber

25 considers that this means that we will be rendering a decision. The

1 document won't be on standby indefinitely. We will take a decision about

2 giving certain documents exhibit numbers.

3 But nevertheless, we need to be able to take a decision in the

4 light of other factors, and it is at that stage that we go back to the

5 motion that is still pending; that is to say, the admission into evidence

6 of matters that have been dealt with by the cases. We are elaborating a

7 decision, and this decision will state why we have decided to mark

8 certain documents for identification, for the time being. All this will

9 enable you to have a better view of the situation. And at the moment, I

10 think there are between eight and ten documents that have been marked for

11 identification. We will be rendering a decision, naturally.

12 The fact that we have said that documents have been marked for

13 identification doesn't mean that we will be forgetting about these

14 documents. You have suggested that a decision should be rendered

15 immediately, as far as the relevance of documents are concerned. And we

16 might then reject documents which could subsequently be revealed as

17 important, given that witnesses called say that the documents are

18 important, they recognise them. So this would be detrimental to both

19 parties if a document was rejected in this manner. So this is why we

20 will consider the matter of rejecting a document, because when you reject

21 a document this means that it can't be presented again, unless there are

22 exceptional circumstances.

23 So there might be borderline cases, cases in which a document

24 might be rejected, but rejecting such a document might be detrimental to

25 someone. So in such a case, we would prefer to mark a document for

1 identification because a document that doesn't seem to be relevant might

2 subsequently be seen to be quite relevant. So that is why we have eight

3 or ten documents that have been marked for identification.

4 You have suggested tendering documents into evidence as was done

5 in the Blaskic case. The Trial Chamber doesn't see any difficulty there;

6 but nevertheless, your list of documents still has to be provided to the

7 Prosecution, to make sure that they have no objections to raise. Because

8 the problem is that the Prosecution might not be in agreement with you.

9 And the inverse case might happen; the Prosecution might want to tender a

10 lot of documents into evidence and you might not be in agreement. So the

11 parties, you may have admitted very few facts and a lot might be

12 contested. So one party might arrive with a long list of documents and

13 the other party might accept them as such.

14 If you have discussions and you reach an agreement as to the

15 documents you might have, the documents you might present - for example,

16 rules on military tribunals in Bosnia and Herzegovina that have to do

17 with the Constitution, the constitutional decision, et cetera - if there

18 is no disagreement, naturally this will be to everyone's benefit. But

19 you have both realised that you are not in agreement for the moment, so I

20 don't see how you might establish a list which could be accepted by the

21 opposing side. But you can always try to do this. It's not prohibited.

22 If you are not able to do so, then the documents will be tendered into

23 evidence as the witnesses appear. This is what was done in the Tadic

24 case. This is a very common law procedure, and naturally we will accept

25 such a procedure because it makes it possible to have adversarial

1 proceedings that concern the documents. And this has been the case to

2 date.

3 The fear you have expressed is that the Trial Chamber, given the

4 expert witnesses who appear, the observers who appear, and so on, in such

5 cases we might have a lot of documents. If both parties manage to reach

6 an agreement with regard to these documents, we will not waste time. And

7 if that is the case, then you just have to indicate that on the list

8 document 43 is being tendered into evidence by the Defence or by the

9 Prosecution, and naturally we will immediately consult document 43. So

10 we don't exclude anything. We will accept any type of procedure,

11 providing that the procedure enables us to save time.

12 But the Prosecution also has to inform me of their position with

13 regard to the issues raised by the Defence and with regard to the

14 possibilities we might have of saving time when dealing with documents,

15 because in the days or weeks to come we will probably be faced with a lot

16 of documents and we have to find a way of saving time. So perhaps

17 Mr. Withopf will have something to say that might be in agreement with

18 what the Defence has said.

19 MR. WITHOPF: Thank you very much, Mr. President, Your Honours.

20 Since my learned friend from the Defence side addressed three issues -

21 namely, the Totic-related documents, the broader issue of the military

22 and political context, and the even broader issue of tendering documents

23 in future - I wish to address these issues in the order just mentioned.

24 In respect to the documents related to the witness Totic, I can

25 be very brief. I reiterate what we said earlier on today and during the

1 examination-in-chief -- during the cross-examination of the witness

2 Totic.

3 In respect to a number of documents, the witness did not even

4 comment on the documents. He only confirmed what my learned colleague

5 from the Defence said read out to him.

6 In respect to any documents which could be of relevance or which

7 in the opinion of Defence may be of relevance, in relation to the crime

8 that was committed in Dusina, we emphasise that only the

9 failure-to-punish aspect can be of relevance in that respect.

10 In respect to the broader issue of what is the military,

11 political, and if I'm not wrong, the Chamber even said the economical

12 context of the crimes or in respect to the times the crimes were

13 committed, the Prosecution actually does agree with the learned

14 colleagues from the Defence side that there must be a further guidance

15 being provided by the Trial Chamber.

16 To date, both Defence and Prosecution are faced with the problem

17 to not have a very clear guidance what the Trial Chamber actually does

18 understand by using the terms "political, military, and economical

19 context." As the Defence, the Prosecution would appreciate a further

20 clarification and guidance on this issue.

21 Finally, in respect to the general issue of tendering documents

22 into evidence, again the Prosecution is in agreement with the learned

23 colleagues from the Defence side. Taking into account that at the latest

24 by end of March the Prosecution will call its first international

25 witnesses and by end of March this will be the time the Prosecution will

1 tender many, many, many documents -- and the Trial Chamber is well aware

2 of the volume of the documents; namely, about 1.000 documents comprised

3 of more than 3.000 pages -- at that point in time, both parties must be

4 given guidance as to how efficiently they should do it. The Prosecution

5 is much in favour of the approach that has been taken and has been used

6 in the Simic case; however, not only in the Simic case but also earlier

7 on in the Keraterm case, meaning that each party tenders its documents

8 into evidence from the bar table.

9 In practical terms, since Defence already has the exhibit list

10 and knows about the documents the Prosecution intends to tender into

11 evidence since more than four months. Meanwhile I would suggest the

12 Defence should be given a deadline, and it should be a pretty short

13 deadline, to indicate which of these documents they wish to make

14 objections; otherwise, the Prosecution should be allowed to tender such

15 documents into evidence. Of course, the issue of authenticity should not

16 be mixed up with the issue of the admissibility of documents.

17 Again, the Prosecution wishes to emphasise that both parties are

18 in agreement that further guidance of the Trial Chamber must be given in

19 respect to the military and political and economical context, and in

20 particular, in relation to the issue of tendering documents.

21 I also wish to use this opportunity to inform the Trial Chamber,

22 both the Trial Chamber and Defence, that the Prosecution is making

23 efforts to translate all - all - of its documents into the French

24 language and such efforts are being made with the aim to have the

25 documents ready by end of March, beginning of April. "Ready" means

1 translated into the French language. Thank you very much.

2 JUDGE ANTONETTI: [Interpretation] Thank you, Mr. Withopf.

3 Mr. Bourgon.

4 MR. BOURGON: [Interpretation] Thank you, Mr. President. I would

5 just like to confirm that when I mentioned the procedure used in the

6 Tadic and Simic case, as well as in the Blaskic case, it wasn't to make

7 any suggestions to the Trial Chamber. It was only to remind everyone of

8 the various procedures that were followed in various cases.

9 With regard to the Defence's position, we would prefer to proceed

10 in this manner: To tender documents into evidence through the witness.

11 In our opinion, that would make it easier for the Trial Chamber to

12 determine the probative value and the relevance of the document. If we

13 could reach an agreement with the Prosecution with regard to tendering

14 certain documents into evidence, we agree with the Trial Chamber that

15 this procedure could make tendering documents into evidence easier in

16 this case.

17 And one last comment: On last Friday the Defence met with the

18 Prosecution. We wanted to ask about our request for a consolidated list

19 of documents. This would facilitate our task. My learned colleague has

20 now said that the list is already ready. We are waiting for this list,

21 which would make our work a lot easier.

22 Thank you, Mr. President.

23 JUDGE ANTONETTI: [Interpretation] Very well. The Trial Chamber

24 will naturally deliberate about the points you have mentioned, but it

25 would first of all be good to have a consolidated list of all the

1 documents. That is the first thing that has to be done. And then

2 everyone will see matters more clearly. This work is being done, and

3 let's hope that the Prosecution will be able to have this list ready as

4 soon as possible.

5 In our decision that concerns the expert witness,

6 General Reinhardt, we'll be providing very useful additional information.

7 And naturally, in our decision - and I'm quoting from what I can remember

8 - we have asked the Prosecution to inform us in advance of the issues

9 that are going to be addressed in the course of the examination and also

10 to provide us at the same time with the list of exhibits -- with the list

11 of documents that will be tendered into evidence in the course of the

12 examination of General Reinhardt. This is what we said in our decision.

13 This decision dealt with the questions that you have mentioned, the

14 issues you have mentioned. This procedure might be efficient, and I

15 think that this is the procedure that the Defence would like to follow.

16 But to save time, it would be good to have a list of the documents in

17 advance.

18 I have also pointed out that among the documents there are

19 documents that are important for everyone. There are documents in which

20 units are founded. And in particular, all the documents that relate to

21 General Reinhardt and that he has mentioned in his written report, which

22 has to be modified in accordance with our instructions. Naturally, the

23 Defence already has these documents, and when the expert witness

24 commences his testimony it is at that point in time that the Prosecution

25 will be able to say, "Well, I'm tendering document number 1 into

1 evidence." If the Defence has no objections to document number 1, at

2 that stage we will give it an exhibit number immediately. On the other

3 hand, if the Defence raises an objection, we'll see how to deal with the

4 matter as we proceed, because the procedure is that first of all the

5 witness has to authenticate the document. We have already seen that some

6 documents aren't recognised; they are officially contested. And we saw

7 that in the case of the previous witness who did not contest the contents

8 of an order but he pointed out that the order hadn't been drafted by

9 himself. So you can see the sort of difficulties that we face.

10 We may have documents that are supposed to be issued by a certain

11 person and then the witness might say, "No, in fact, I didn't draw up the

12 document." So we need to have a debate at such a point about the

13 document in question. But if the witness says, "I recognise document

14 number 1," in that case there's no problem; we'll move on to document

15 number 2. So this would allow us to proceed very rapidly.

16 It seems that there are also other questions. We will clarify

17 these matters, questions that have to do with military and political

18 issues. So a document that concerns military logistics, appointments,

19 the functioning of a unit, orders issued by superiors to -- the superiors

20 to subordinates, these are naturally military documents. Such documents

21 have nothing to do with economics or finance.

22 As far as political matters are concerned, these are documents

23 that deal with decisions of a political decision [as interpreted], either

24 at the level of a state or at the level of a community, or at the

25 municipal level. These are documents of political nature.

1 Sometimes the economic sphere and the political sphere can

2 overlap but a document which relates to the HVO -- for example, we saw

3 the document coming from the place called Grude that concerned the HVO.

4 That was a political document, naturally. And you have also noted that

5 there are witnesses who make a distinction between the military and the

6 political sphere. The previous witness said, "I'm a soldier. I have

7 nothing to do with politics." So if you show a military person a

8 political document, the response will be military.

9 So as far as the military documents are concerned, it won't be

10 difficult to categorise these documents. As far as other documents are

11 concerned, economical documents, those that have to do with supplies,

12 transport, circulation, and so on, these are documents that have to do

13 with social matters, financial matters, economical matters. So it's for

14 the parties to make a distinction. So the Trial Chamber can't say, "This

15 document is being categorised as an economical or political or military

16 document." It is for you to say what your position is, and then the

17 Trial Chamber will decide what the relevance, the nature of the document,

18 is what its probative value is.

19 But all this will be based on a debate in the presence of the

20 examination of a witness. We've delayed the parties to proceed. So far

21 we haven't had any difficulties with regard to the documents. You've

22 expressed your fear with regard to the witnesses who will be appearing in

23 the future. We understand your difficulty. But as we are aware of your

24 professionalism, we are sure that the difficulties will be minimal.

25 We need this consolidated list to proceed. And with regard to

1 our decision that concerns General Reinhardt, we also need the list of

2 exhibits and order of the questions that will be put to the witness, and

3 this will enable us to proceed more and more rapidly, I think.

4 Mr. Withopf.

5 MR. WITHOPF: Mr. President, Your Honours, very briefly. The

6 consolidated list is almost ready to be filed, and the Prosecution will

7 certainly file it in the course of this week.

8 In respect to the documents related to the expert opinion of

9 General Reinhardt, the Prosecution will certainly in the near future file

10 a written submission outlining the different issues that have been

11 addressed by the Trial Chamber in its decision.

12 However, I already wish to use this opportunity now to draw the

13 attention of the Trial Chamber to two main issues that will make it quite

14 difficult for the Prosecution to in all aspects comply with the wishes of

15 the Trial Chamber. The military expert General Reinhardt repeatedly -

16 repeatedly in his written statement - has emphasised that he based his

17 opinion on the entirety of documents he has been provided with.

18 Therefore, the Prosecution, which intends to keep the

19 examination-in-chief of General Reinhardt very brief, will have to rely

20 on all documents which have been provided -- which General Reinhardt has

21 been provided with.

22 The issue will become even more complicated in respect to the

23 documents the Prosecution may or may not use during the re-examination of

24 General Reinhardt, since the Prosecution, of course, doesn't know until

25 the end of the cross-examination of General Reinhardt by Defence which

1 documents Defence will use. And the re-examination, of course, depends

2 on the documents used by our learned colleagues during the

3 cross-examination.

4 However, I wish to emphasise that we will elaborate on the

5 related issues in a written submission, which will be filed in near

6 future.

7 Finally, just making reference to a remark in the transcript.

8 The Prosecution noted in the past that quite often legal debates on the

9 admissibility of documents were made in the presence of the witnesses.

10 It appears, at least sometimes, it appears to be advisable to not have

11 the witness present during such debates, since the witness may come to

12 certain conclusions which are not necessarily -- or may not necessarily

13 be the right ones. However, Mr. President, Your Honours, this is a

14 suggestion only.

15 [Trial Chamber confers]

16 JUDGE ANTONETTI: [Interpretation] Yes. Mr. Withopf, the Trial

17 Chamber thanks you for what you have just said. We note that with regard

18 to General Reinhardt it is your intention when conducting an

19 examination-in-chief -- in fact, there are very few questions. You will

20 be relying exclusively on the written statement and you will allow the

21 Defence to conduct its cross-examination. This written statement,

22 naturally, is supported by all the documents that you will inform us of,

23 and you will provide us with a list of these documents. This is a

24 procedure that could be very useful and could enable us to save time.

25 If the Defence has no objections to make, the written report will

1 then be a document you will be tendering into evidence, because this

2 report refers to a number of documents and we'll have the documents, and

3 then the cross-examination can address all the issues raised. This will

4 enable us to save time.

5 You have also mentioned the matter of documents contested and

6 also discussions on admissibility in the presence of witnesses. It's

7 true that it might be good to ask the witness to leave the courtroom, but

8 bear in mind the fact that, as in the case of the previous witness, there

9 were ten documents and objections were made to each one.

10 If on each occasion we ask the witness to leave whenever a

11 document arises to which one objects, this will double the time we spend

12 on the proceedings at least. In addition, a witness following a debate

13 that has to do with the admissibility of evidence might draw certain

14 conclusions from that; that's true. But, on the other hand, asking the

15 witness to leave the courtroom might waste a lot of time. So we have to

16 deal with this on a case-by-case basis. In some cases we'll have to ask

17 the witness to leave, and then naturally there will be other cases in

18 which this won't be necessary in the light of the witness's personality.

19 So we will assess this on a case-by-case basis, and we'll take

20 into consideration the need of not wasting time. As there is no jury -

21 we have professional Judges, a professional Defence team, a professional

22 Prosecution team - we will assess the problems as we proceed and we will

23 find solutions to the problems almost immediately. But we've taken note

24 of the issues raised.

25 You also mentioned another problem, and that has to do with the

1 translation of documents. We would like to thank you for your attempts

2 to have the relevant documents translated, and quite by chance we

3 discovered that a document had already been translated into French, since

4 it was a document that appeared in another case. So perhaps among the

5 documents that you will be using some have already been translated. And

6 in this case, we could avoid translating the same document twice.

7 Our concern, with regard to the translation of documents, is that

8 we don't want documents that have been translated into English translated

9 into French; in the case of important documents, we want B/C/S documents

10 to be translated into French translated into English [as interpreted], so

11 that we can check in the three languages the important of the document.

12 Because if there is a translation from B/C/S into French and B/C/S into

13 English, that's not enough. We need a translation B/C/S-into-English and

14 B/C/S-into-French, and then everyone will be able to assess the

15 situation. I don't know if this is possible, but on a number of

16 occasions we have already seen that there are certain ambiguities as far

17 as the translations are concerned. And if we had two translations, this

18 would enable us to reduce the possibility of errors occurring.

19 So I am turning to the parties. If it is your intention to

20 present documents translated into French, have them translated from B/C/S

21 into French. Don't have them translated from English into French.

22 That's not necessary. We have some knowledge of English, and the

23 adversarial proceedings are such that if we have a text in B/C/S or

24 French or English we'll be able to ask the witness some questions to

25 solve any difficulties that may arise. But in order to reduce any

1 uncertainties, as far as the importance and scope of a document is

2 concerned, I think it would be good if documents in B/C/S were directly

3 translated into French or translated into English, and then we could

4 compare the two translations.

5 But according to the procedure of this Tribunal, the French

6 translation section apparently only translates documents from English. I

7 don't understand why we haven't employed translators who can translate

8 from B/C/S into French or B/C/S into English, but unfortunately this is a

9 problem that may arise.

10 If the Defence can also translate B/C/S documents into English,

11 given the resources it has, so much more the better. And if it can do it

12 into English too, that would be very good. And it would be ideal for

13 everyone if we had the two versions. But if we can only have documents

14 translated from B/C/S into English, then naturally we will work on the

15 basis of these documents.

16 It's now 5.20. We have perhaps another 15 or 20 minutes for the

17 second witness. Are there any special measures that are being required?

18 If that is the case, it is necessary for us to go into private session.

19 Mr. Withopf.

20 MR. WITHOPF: Mr. President, Your Honours, yes, the Prosecution

21 will in respect to the next witness apply for protective measures. And

22 if we could, please, go into private session for that purpose. My

23 colleague Mr. Stamp will make the oral application for the next witness.

24 JUDGE ANTONETTI: [Interpretation] Mr. Registrar, can we please go

25 into private session.

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14 [Open session]

15 THE REGISTRAR: Your Honours, we are in open session.

16 JUDGE ANTONETTI: [Interpretation] Thank you.

17 I'm giving the floor to the Prosecution for their

18 examination-in-chief.

19 Examined by Mr. Stamp:

20 Q. Sir, I will be calling you ZC, Mr. ZC. That is your pseudonym

21 during your testimony.

22 So, Witness ZC, were you a member of the HVO in the early part of

23 1993?

24 A. Yes.

25 Q. And were you captured at some time that year?

1 A. Yes, in Bugojno.

2 Q. Immediately before you were captured, where was your unit

3 deployed?

4 A. The main body of my unit was in the Kalin Hotel in Bugojno. And

5 at the moment when I was captured, I was in the Croatian centre; that is,

6 some 20 to 30 metres away from the Kalin Hotel, by the command of the

7 military police.

8 Q. Who captured you?

9 A. I beg your pardon?

10 Q. By whom were you captured?

11 A. The BiH army.

12 Q. Do you recall the date of that?

13 A. 19 July 1993.

14 Q. Now, after your capture, where were you taken to?

15 A. I was taken to the school, to the grammar school. To the

16 basement of that grammar school.

17 Q. The place that you were taken to, was it known by any name in

18 particular? I heard you say -- well, let the question remain as it is.

19 The place that you were taken to, was it known by any name in particular?

20 A. I don't know. I don't know.

21 Q. Did you just say that you were taken to the Gimnazija?

22 A. Yes, the grammar school.

23 Q. Now, prior to your being taken there, do you know what the

24 Gimnazija was used for?

25 A. You mean before the war or ...?

1 Q. No, no, immediately before you were taken there.

2 A. It was the base of the military police of the BiH army.

3 Q. How did you -- well, before -- you said the base. The base of

4 which unit? Or which level of the BiH army was it the headquarters of?

5 A. There were soldiers there belonging to the military police. I

6 believe that the headquarters of the military police was also there.

7 Q. Was this the headquarters for the military police in all of the

8 municipalities or in Bugojno or at a lower level?

9 A. For the entire municipality of Bugojno.

10 Q. Now, how did you come by this knowledge that it was the

11 headquarters?

12 A. I was also a military policeman. I was in the HVO. And we

13 manned checkpoints at the entrance to the town of Bugojno together with

14 the BiH army. So we patrolled together. And this is where they came

15 from.

16 Q. And this was before there were conflicts or hostilities began

17 between the ABiH and the HVO?

18 A. Yes.

19 Q. Now, earlier you told us you were taken to the basement of the

20 Gimnazija. When you were taken there, were other prisoners there?

21 A. There were already prisoners there. They belonged to my unit of

22 the military police.

23 Q. About how many other prisoners were there in the basement?

24 A. Between 30 and 40, according to my estimate. I believe that that

25 was the number.

1 Q. And were you taken there alone or were there other prisoners or

2 detainees taken there at the time that you were taken there?

3 A. I was not alone. All those who were put in my cell, some ten of

4 us, we were transferred there. And some others who were in the sports

5 hall of the Gimnazija, those were members of the 2nd Battalion.

6 Q. Can you briefly describe the layout of the basement in relation

7 to the part that you were taken to.

8 A. The ceiling was low. We couldn't stand up straight. Some 40 of

9 us were accommodated there. We were like sardines in a can. We couldn't

10 stretch our legs. The room was narrow.

11 Q. Can you estimate the size of the room, the dimensions of the

12 room, length and width?

13 A. It was 3 to 4 metres wide and some 10 metres long -- or not even

14 that long, between 8 and 10 metres long. It was dark. There was no

15 light whatsoever.

16 Q. Well, were you able to recognise and identify some of your fellow

17 detainees down there?

18 A. There were already some detainees there when I came. I

19 recognised those sitting close to me or the voices of people that I heard

20 talking. That was the only way I could recognise them.

21 Q. For about how long did you remain at the Gimnazija?

22 A. Some 15 to 20 days.

23 Q. And that was from the date you were captured, which you said was

24 the 19th of July?

25 A. I stayed there until the beginning of August, thereabouts.

1 Q. Yes. I just want to clarify that. That is from the date that

2 you were captured, which is from the 19th of July?

3 A. Yes, you're right.

4 Q. Now, during that period of time while you were there, can you

5 just describe to the Court the conditions in respect to the diet that you

6 received from your captors.

7 A. For the first five or six days, we didn't receive anything. I

8 lived on water. We would be given three or four loaves of bread to share

9 between 30 or 40 of us.

10 Q. In respect -- you said for the first five or six days you didn't

11 receive anything. Can I take it that you would receive three to four

12 loaves of bread sometime after those first five or six days?

13 A. During the first five or six days, we received those three to

14 four loaves of bread. But there were 30 or 40 of us, so each of us would

15 receive just a tiny little slice a day.

16 Q. And after those first few days, did the condition improve or did

17 it remain the same for the duration of your stay there? And we're

18 talking about food for the time being.

19 A. They were somewhat better, but I would say that this was a bare

20 minimum, just to survive. We could not eat as much as we would have

21 wanted to. We didn't receive as much as we would have wanted to. We

22 would receive something in the morning and sometime in the afternoon.

23 Twice a day we would receive some sort of a meal.

24 Q. And what was the situation in relation to water for drinking

25 purposes?

1 A. It depended on the guard. There was one who would bring us a

2 bottle of water, so the situation with water was somewhat better. Some

3 knew this guard, and sometimes this guard would bring us water.

4 Q. And what was the situation when this guard was not present?

5 A. This guard was mostly there, so he did bring us water.

6 Q. And what toilet facilities were there at your disposal, if any?

7 A. Again, it depended on the guards. Some would allow us to go out

8 to the toilet. Or we would use a bucket that we had in the cell and we

9 used the bucket to relieve ourselves in the cell.

10 Q. Now, while you were there, did they -- how did the guards treat

11 the prisoners?

12 A. Two were taken out, Ivkovic and Subasic. They were taken most of

13 the times and they were beaten. And once I saw that this guy Subasic, he

14 was badly beaten.

15 Q. Were Ivkovic and Subasic the only ones beaten while you were

16 there?

17 A. There was someone called Goran. I can't remember his surname. I

18 think he was from Mostar. I think he was born there.

19 Q. About how many of the prisoners were beaten -- were taken out and

20 beaten while you were there?

21 A. In the Gimnazija, in the grammar school.

22 JUDGE ANTONETTI: [Interpretation] Yes, Defence.

23 MS. RESIDOVIC: [Interpretation] Mr. President, I think that this

24 is a leading question. The witness - line 14, page 77 - said that

25 Ivkovic and Subasic were beaten. And then in response to another

1 question put to him as to whether anyone else had been beaten, the

2 witness said that they called out someone called Goran and that he

3 thought he was from Mostar. Now the Prosecution is asking how many other

4 detainees they beat, and this is not something that can be concluded from

5 the previous answers provided by the witness, because the witness's

6 answers were precise.

7 MR. STAMP: I mean, it might very well be a matter of

8 interpretation, but Counsel for the Defence has completely misquoted the

9 two questions I asked, having regard to the official record. And,

10 clearly, the questions are not leading, if one goes by the official

11 record. But it might be a matter of translation.

12 The first question is: Were they the only ones beaten? And the

13 next question -- not the next succeeding question, but a later question

14 was simply: How many prisoners were beaten?

15 Now, I respectfully submit that the -- if the witness has

16 testified that some prisoners were beaten, then it could in no

17 circumstance be a leading question to ask how many in all were beaten.

18 But I think it's really a matter of translation, because I'm quite sure

19 my friend wouldn't misquote what has been said. But on the English

20 transcript, the questions are not leading.

21 In which case, may I proceed, Mr. President?

22 JUDGE ANTONETTI: [Interpretation] Yes. Please proceed.

23 MR. STAMP:

24 Q. At the Gimnazija, how many prisoners in all did you know were

25 beaten?

1 A. I can remember those three men the most. At the time, they

2 didn't beat me in the grammar school, so I really can't remember.

3 Q. Very well.

4 A. But I do remember these three persons.

5 Q. Now, how did you become aware that these three persons were

6 beaten at the Gimnazija?

7 A. Well, when they returned, they'd tell us about it or you could

8 see traces of the beatings on them when they arrived.

9 Q. Now, you said you remained there until the first week of August

10 1993. What happened then? Were you taken somewhere else?

11 A. They transferred us from the basement in the grammar school to

12 the school, to the hall in that school. There were other detainees

13 there. We spent one night there.

14 In the morning -- or rather, on the following day, they

15 transferred us in refrigerated lorries to the furniture salon.

16 Q. And where was this furniture salon?

17 A. It was about 4 or 5 hundred metres from the grammar school.

18 Q. In Bugojno?

19 A. Yes, in Bugojno.

20 Q. Were you taken to any particular place in that salon?

21 A. We were also taken to the basement of the furniture salon, where

22 it was dark.

23 Q. Had you been to the furniture salon before that day?

24 A. Not inside, not in the furniture salon. But I had passed by.

25 Q. Can you describe the basement that you were put in?

1 A. Well, it was a bigger room -- it was a big room. There was some

2 water on the floor, maybe from the sewer system. I don't know where it

3 came from, but there was a lot of water. There was some old furniture or

4 something like that. And we slept on that old furniture or on planks, on

5 wooden planks.

6 Q. How long did you remain at the furniture salon?

7 A. For about 20 days.

8 Q. While you were there, what were the toilet facilities like that

9 were made available to you?

10 A. Well, there was one toilet upstairs, but it was blocked, so it

11 wasn't really possible to use it. It was always blocked. It was very

12 often blocked.

13 Q. How many prisoners were with you in the basement of the furniture

14 salon?

15 A. I don't know the exact number, but I think that there were about

16 100 of them. All my colleagues from the military police were there.

17 MR. STAMP: With your leave, Mr. President, may we just very

18 briefly go into private session while I ask him a couple of matters of

19 personal detail?

20 JUDGE ANTONETTI: [Interpretation] Mr. Registrar, let's go into

21 private session.

22 [Private session]

23 (redacted)

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15 [Open session]

16 THE REGISTRAR: Your Honours, we are back in open session.

17 MR. STAMP:

18 Q. Now, Witness, without identifying or calling the names of who

19 told you, did they tell you about the beating of any particular prisoner

20 and by whom?

21 (redacted)

22 JUDGE ANTONETTI: [Interpretation] Very well. Mr. Registrar,

23 could you make an order to have this answer redacted.

24 Do continue, Mr. Stamp.

25 MR. STAMP: Thank you, Mr. President.

1 Q. By whom?

2 A. I heard that he had been taken to see Dautovic.

3 Q. Who, to your knowledge, was this Dautovic?

4 A. He was the commander of the BH army military police.

5 Q. Now, the question I just asked you earlier is: By whom were you

6 told he was beaten? And your answer was: "He was taken to see

7 Dautovic." Just focus on the question that I asked. By whom were you

8 told he was beaten?

9 A. My brother told me.

10 Q. Very well. And did he tell you who did the beating?

11 A. He said that he had seen Dautovic and that Dautovic beat him.

12 (redacted)

13 A. When I got there, I went to see my commander, to greet him. He

14 was lying down. He couldn't move.

15 Q. Why couldn't he move?

16 A. Well, I suppose he had been beaten, because when I appeared, he

17 remained lying down, or when we greeted each other.

18 Q. Now, while you were there, how did the guard treat the prisoners?

19 A. When night fell, they would start calling out the names of

20 people. They would take them out and they would beat them. Sometimes

21 they'd do this to the same persons and sometimes to other persons.

22 Q. While you were there, about how many people in all were called

23 out and beaten?

24 A. Well, I don't know exactly, but quite a lot of people. On one

25 night, perhaps five to six persons. It depended.

1 Q. Did you observe any particular pattern in relation to who was

2 called out, or did it appear to be at random?

3 A. I don't know how they decided about that.

4 Q. Yes. But how did it appear to you? Did you notice any pattern,

5 or did it appear to be at random?

6 A. I don't know. Perhaps at random. I wouldn't know.

7 Q. Well, tell us, before we move on to you: When persons were

8 called out to be beaten and when they returned, did you notice anything

9 about them? What condition were they in?

10 A. They had bruises on their backs. When they came down, other

11 detainees would help them. They'd put some sort of wet cloths on them,

12 and so on.

13 Q. How about yourself, your personal experience? How did the guards

14 treat you while you were there?

15 A. They also took me out at night, I don't know, about 9.00 or

16 10.00. But they didn't touch me on that occasion. They sent me back.

17 Q. That occasion was about how long after you had been brought

18 there?

19 A. Well, about five or six days after I'd been brought there,

20 something like that.

21 Q. Well, I take it that there was a next occasion, or at least one

22 other occasion. Could you tell us what happened on that occasion.

23 A. Well, yes. It was on the same night I returned. I wanted to go

24 to sleep, and around midnight I was woken by the other detainees who told

25 me that they were calling me. I went up. There were four or five of

1 them standing there. It was dark. The lights weren't on. Occasionally

2 someone would use a lighter to spread a bit of light. I sat down on a

3 chair, and then they started beating me. They started hitting me. One

4 of them hit me with a truncheon, and the others would punch me or hit me

5 with whatever they could get their hands on. They beat me like that for

6 five or six minutes. I don't know for how long exactly. And then they

7 sent me back.

8 MR. STAMP: I don't know, Mr. President, if this time is

9 convenient.

10 JUDGE ANTONETTI: [Interpretation] It's 7.00. We have to adjourn

11 now. Witness, you'll be back for the hearing that will start at 2.15.

12 You should come a little earlier so that the relevant services can take

13 charge of you. During the interim period, you are not to see anyone and

14 you are not to have any contact with representatives from the

15 Prosecution.

16 I will now ask the usher to escort you out of the courtroom.

17 [The witness stands down]

18 JUDGE ANTONETTI: [Interpretation] That's been done.

19 I'll address the Prosecution now. We will have concluded with

20 this witness's testimony tomorrow. And I assume there will be another

21 witness after this one tomorrow.

22 Mr. Withopf, can you provide us with any information?

23 MR. WITHOPF: [Microphone not activated] Can we please go into

24 private session?

25 [Private session]

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6 (redacted)

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8 --- Whereupon the hearing adjourned at 7.02 p.m.,

9 to be reconvened on Tuesday, the 24th day of

10 February, 2004, at 2.15 p.m.

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