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
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
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.
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
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
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
25 Does this order indeed contain all the things that I've just read
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
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
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
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
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.
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
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,
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
25 JUDGE ANTONETTI: [Interpretation] Very well. We have taken note
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
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
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
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
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
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.
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
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
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
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
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.
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
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
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
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
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
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
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
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
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
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
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
14 And secondly, we would like to tender this document into
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
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
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
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
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
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
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
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
17 JUDGE ANTONETTI: [Interpretation] Thank you.
18 I am giving the floor to Mr. Withopf for re-examination of this
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
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
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
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
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
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
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
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
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
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.
1 [Private session]
12 Pages 3313 to 3322 redacted, private session
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
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
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
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
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
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
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
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
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
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]
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?
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.
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
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
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
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]
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.