1 Friday, 14 May 2004
2 [Open session]
3 --- Upon commencing at 9.00 a.m.
4 [The accused entered court]
5 JUDGE ANTONETTI: [Interpretation] Mr. Registrar, you can call the
6 case, please.
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.
10 And the appearances for the Prosecution, please.
11 MR. WITHOPF: Good morning, Mr. President. Good morning, Your
12 Honours. Good morning, Counsel. For the Prosecution, Daryl Mundis,
13 Ekkehard Withopf, and Ruth Karper, the case manager. Thank you.
14 JUDGE ANTONETTI: [Interpretation] Thank you.
15 And the appearances for the Defence.
16 MR. BOURGON: [Interpretation] Good day, Madam Judge. Good day,
17 Your Honour. Good day, Mr. President. On behalf of General Enver
18 Hadzihasanovic, Mrs. Vedrana Residovic, Alexis Demirdjian, and myself,
19 Stephane Bourgon. Thank you, Mr. President.
20 JUDGE ANTONETTI: [Interpretation] And the other Defence team?
21 MR. IBRISIMOVIC: [Interpretation] Good morning, Your Honours. On
22 behalf of Mr. Kubura, Rodney Dixon, Fahrudin Ibrisimovic, and Nermin
23 Mulalic, our legal assistant.
24 JUDGE ANTONETTI: [Interpretation] Thank you. This is the last
25 hearing we will be having this week, and I would like to greet everyone
1 present. Mr. Withopf, you are on your feet. What would you like to say?
2 MR. WITHOPF: Mr. President, Your Honours, this is a pure
3 practical issue. Since we today will continue with the discussion on
4 documents, I would respectfully ask the Trial Chamber, in order to ensure
5 a smooth running of the proceedings, to have a break of about 15 minutes
6 once the examination of the witness is finished to allow us to rearrange
7 our things in order to ensure that the discussion goes well.
8 JUDGE ANTONETTI: [Interpretation] That is not a problem.
9 Could the usher now bring the witness into the courtroom.
10 [The witness entered court]
11 JUDGE ANTONETTI: [Interpretation] Good morning, General. Can
12 you -- are you receiving any interpretation?
13 THE WITNESS: Yes. That's perfect. Thanks, sir.
14 JUDGE ANTONETTI: [Interpretation] Very well. So this is your
15 last day of testimony here. Without wasting any more time, I will let
16 the Defence counsel take the floor.
17 MR. BOURGON: [Interpretation] Thank you, Mr. President.
18 WITNESS: ALASTAIR DUNCAN [Resumed]
19 Cross-examined by Mr. Bourgon: [Continued]
20 Q. Good morning, General.
21 A. Good morning.
22 Q. I only have a few questions more for you this morning, and these
23 questions relate to a topic which was covered by my colleague yesterday,
24 namely that of the Mujahedin.
25 We established yesterday, General, that I have provided three
1 statements to the Office of the Prosecutor; is that correct?
2 A. That's correct, yes.
3 Q. And in two of these statements - namely, the one you provided
4 which deals with the Blaskic case and the one you provided with respect
5 to refugees - both of these statements are silent on the issue of
6 Mujahedin; would you agree?
7 A. I -- well, I'll have to accept that. I haven't seen those
8 statements. I've only seen the latest one recently, but yes, I would
9 agree with that.
10 Q. And in your statement that you provided to the Office of the
11 Prosecution for this specific case, do you recall stating that your
12 knowledge of Mujahedin was limited to that found in the milinfosums
13 produced by your battalion?
14 A. That's correct, yes. I already stated that I have not ever
15 personally seen a Mujahedin.
16 Q. And the article which you wrote in 1994 concerning what you
17 stated as being the most unusual experience of your entire military
18 career - at least up to that point - that is, your six months in Bosnia,
19 is also silent on the issue of Mujahedin; would you agree?
20 A. Yes.
21 Q. Now, you assumed operational command of the British Battalion in
22 theatre as of 11th of May; is that correct?
23 A. That is correct.
24 Q. And at that point in time, you did know that the brigade
25 commander of the HVO Zenica Brigade, Zivko Totic, as well as four of his
1 officers had been kidnapped. Did you know this?
2 A. Yes, I was aware of that.
3 Q. And did you know that at that moment there was an exchange which
4 had been organised between the Mujahedin and the HVO to exchange foreign
5 nationals detained by the HVO against Zivko Totic and his officers? Did
6 you know that?
7 A. No, I don't think I was aware of that.
8 Q. Now, this exchange in fact took place on the 17th of May, which
9 is one week after you assumed command of British Battalion. Are you
10 aware of the holding of this exchange?
11 A. I'm not, no.
12 Q. And would you be aware, General, that this exchange was organised
13 solely between the HVO and the Mujahedin with the ECMM - that is, the
14 European Community Monitoring Mission - as a mediator? Are you aware of
16 A. I wasn't aware specifically of that exchange. I was aware that
17 the ECMM and Red Cross and others were organising a number of exchanges
18 between HVO and ABiH at that time.
19 Q. And this specific exchange of 17th of May does not bring any
20 specific souvenir to your --
21 A. It does not, no.
22 Q. Now, if I mentioned to you, General, that the ECMM had
23 specifically requested the concurrence of your battalion for this
24 exchange and that in fact the Mujahedin and the HVO officers were
25 transported using resources from your Battalion; are you aware of that?
1 A. I'm not aware of it, but it doesn't surprise me because that what
2 I call routine work in support of the ECMM.
3 Q. So this is an event which would not have been significant enough
4 for you to get involved as the battalion commander.
5 A. There are a lot of things for a battalion commander to do; that
6 particular day, it was probably not a priority. I would have been
7 entirely -- if it was going on, I suspect that I was entirely happy with
8 it and there were no problems which needed my attention at the commander.
9 Q. And even if that event involved the full attention of all ECMM
10 personnel and that of the HVO?
11 A. Yes. That doesn't make it any more significant.
12 Q. Now, you did know, General, that this exchange was solely
13 arranged, as I've mentioned, between the HVO and the Mujahedin and that
14 3rd Corps was not involved to this exchange, did you?
15 A. I wasn't aware that 3rd Corps wasn't involved, no.
16 Q. And this -- when you refer to the term "Mujahedin," you did
17 mention that you've never seen a Mujahedin. And would I be right in
18 saying that, still today, you don't really know what we mean by
20 A. I think it's a term which is used to cover a number of people.
21 It can be used to cover somebody who's come from an Arabic country or a
22 Muslim country and decided he's going to assist the war, the ABiH, in
23 Bosnia. It can be used to describe those who have, if you like, joined
24 that crowd, who may be locals, and have put on the garb and outward
25 appearance of Mujahedin. And it covers a number of cases from, I
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 suppose, a very hard line to a very soft line on the other.
2 Q. And, General, it was referred at one point or in many instances
3 that Mujahedin were in fact mercenaries, and this was the kind of
4 information which was passed on to officers of your battalion. Are you
5 aware of this fact?
6 A. Yes.
7 Q. And are you aware of the fact -- or did your predecessor, Colonel
8 Stewart, brief you on the issue of Mujahedin?
9 A. He mentioned of their presence, but we didn't get into any detail
10 about what they were doing. He said, "You should be aware there are
11 elements about." He didn't define exactly what they are or where they
12 were doing -- or what they were doing or where they were based.
13 Q. And I take it that you did not feel necessary to advise your
14 officers, your field officer, or the company commanders working for you
15 of this fact?
16 A. Yes. They were all aware of the Mujahedin.
17 Q. They were all aware --
18 A. Yes.
19 Q. From the get-go in theatre?
20 A. From briefings both before -- after my reconnaissances -- and
21 during. It was a subject we discussed occasionally, because there were
22 believed to be "sightings."
23 Q. And what if I mentioned to you some of your officers actually
24 encountered Mujahedin in early May and mentioned that this is the first
25 time they had even heard of Mujahedin?
1 A. I would be surprised if they said it was the first time, but I
2 would not be surprised that they encountered Mujahedin, because we have
3 recorded that in some of the milinfosums.
4 Q. Now, you yourself, General, you don't know who invited or how the
5 Mujahedin ever got to Central Bosnia, do you?
6 A. No.
7 Q. And you have no idea of what relationship, if any, existed
8 between the Mujahedin and the Muslim religious leaders in Bosnia, do you?
9 A. No, other than that they clearly -- there were people who were
10 described as Mujahedin who therefore existed, and I assumed some
11 coexistence between them and the local population, whether it's civil or
13 Q. But you don't know the relationship between the religious leaders
14 of Bosnia and Herzegovina.
15 A. Not specifically, no.
16 Q. And in fact you don't know the source of the financing used by
17 the Mujahedin in Central Bosnia.
18 A. No. But I was aware that a considerable amount of money has and
19 I think recently been donated for the rebuilding of mosques and that sort
20 of business from outside states.
21 Q. And was that rumour, General, or was that fact?
22 A. That was -- that's not facts, but it's just what I gathered from
23 talking to people.
24 Q. And when these Mujahedin, the different types we spoke about, you
25 don't know where they got their supplies from in Bosnia, do you?
1 A. No, I don't. But it -- as you know, it was very difficult to
2 move supplies, food, and other things in and out, which is why we were
3 delivering the aid, in order to make sure people could survive.
4 Q. And you have no knowledge of Mujahedins, whoever they are, single
5 or units or detachments, that these people were in fact offering money to
6 local Muslims to join them in their endeavour to make a single Muslim
8 A. That wouldn't surprise me, because money will talk and money
9 makes things happen.
10 Q. But this is a fact that you were not aware of.
11 A. No. But if you were short of money over there, which people
12 were, and somebody is offering money for you to join them, I would
13 suspect that would be quite a good recruiting ploy.
14 Q. And, General, if I mention to you that whenever Mujahedins were
15 mentioned, either in the milinfosums or sighted by witnesses, not from
16 your battalion, they were reported as being either Mujahedin or locals
17 wearing masks. Were aware of that fact?
18 A. Yes.
19 Q. And do you know that -- would you agree with me that not one
20 single military operation was seen by anyone from your battalion where
21 the Mujahedin were actually involved?
22 A. That doesn't surprise me, and I would entirely accept that.
23 Q. And would you agree with me, General, that in fact none of the
24 milinfosums report any observations by members of your battalion of
25 Mujahedin during any type of combat action?
1 A. Not in any combat action, but I believe there's one particular
2 reference to the sighting of perhaps 80 on a date which I couldn't
3 remember exactly. But that's certainly in one of the milinfosums.
4 Q. Well, in fact, General, one of your officers did meet some
5 Mujahedins, or at least some foreign national citizens. And I guess you
6 will recall a report by the liaison officers to Zenica, which is Cameron
7 Kiggell, who did speak to some Mujahedin in Zenica. Do you recall this
9 A. No. Well over 180 milinfosums were produced, and I don't recall
10 that particular one.
11 Q. If you can turn to the documents that you have in front of you --
12 do you still have those documents, or -- sorry.
13 A. I have no documents.
14 THE INTERPRETER: Could the speakers please make a break between
15 questions and answers so that the interpreters can follow you.
16 MR. BOURGON:
17 Q. Please turn, General, to tab 11 in your binder. We did insert
18 some tabs in your binder this morning.
19 A. Thank you.
20 MR. BOURGON: [Interpretation] Mr. President, the document is
21 document number 11. It's a milinfosum, number 32. The date of the
22 milinfosum is the 31st of May, 1993.
23 Q. [In English] Do you have this document, General?
24 A. Yes, I do.
25 Q. If you look at the middle of the first page, under paragraph 3,
1 it is mentioned there that the Zenica liaison officer had a meeting with
2 some Mujahedin, and he talks about them as elements based in Zenica.
3 And the last line of this paragraph says that "He formed the
4 impression from their meeting that they were not under the control of
5 3rd Corps." Can you see this in this paragraph?
6 A. Yes, I can see that.
7 Q. Now, on the same day, General, Cameron Kiggell had a meeting with
8 Jasmin Saric. Jasmin Saric was the commander of the Zenica Municipal
9 Defence Staff. And if I refer you to the same document at paragraph 4,
10 you see that this is the two people who were met by Cameron Kiggell. Can
11 you see this at paragraph 4?
12 A. Yes, I can. Yeah.
13 Q. Now, this -- in this paragraph, if you go down and you read from
14 this document, Jasmin Saric mentioned a few measures which were being
15 taken by the government in Zenica to tighten up on law and order. Can
16 you see that?
17 A. Yes, I can.
18 Q. Now, this would go in line with what you said yesterday that the
19 government was still responsible for law and order in Zenica; would you
21 A. Yes.
22 Q. If you turn to the next page of this document, it is also
23 mentioned there that the conversation with Mr. Saric gave the impression
24 to Cameron Kiggell that the Mujahedin were not under control of the
25 3rd Corps. Do you recall this report by Cameron Kiggell?
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 A. I recall the milinfosum because it talks about an Italian aid
2 convoy being stopped. And I can recall this report now.
3 Q. Now, just a quick question before we move on, General, but do you
4 know what is a municipal defence staff?
5 A. It's -- no, not exactly, but I mean, that's a name that could
6 hide a number or display a number of features. I don't know exactly what
7 it is.
8 Q. I would ask you to turn to the previous document in your binder,
9 which is at tab number 10.
10 MR. BOURGON: [Interpretation] Mr. President, this is a
11 milinfosum, number 46. The date is the 14th of June. And this document
12 comes just before the one I have just mentioned.
13 Q. [In English] Now, General, my colleague from the Prosecution did
14 show you this document yesterday. I would like to confirm if you look at
15 the end of the first paragraph, which refers to a meeting you had with
16 the commander of the 3rd Corps and his deputy commander. You recall this
17 conversation, do you?
18 A. Yes, I do.
19 Q. And during this conversation, you would agree that Merdan clearly
20 claimed on this occasion that the Mujahedin were outside the effective
21 control of the 3rd Corps.
22 A. Yes, he did.
23 Q. And it is on that same day that General Hadzihasanovic showed to
24 you a letter written to his higher command seeking guidance to deal with
25 what he considered to be a problem. You recall this conversation with
1 General Hadzihasanovic?
2 A. Yes, I do.
3 Q. Now, this letter which he showed you, in what language was it?
4 A. I believe it was in Serbo-Croat.
5 Q. And did you see the contents of that letter?
6 A. No, I didn't.
7 Q. So he basically told you there is a letter.
8 A. Yeah.
9 Q. And he showed you a piece of paper.
10 A. Yes.
11 Q. It could have been a false letter.
12 A. It could have been, I suppose, yes.
13 Q. But you knew it was a right letter because you could trust
14 General Hadzihasanovic.
15 A. General Hadzihasanovic, I have already said - and the Prosecution
16 referred to it as a cunning fox - it may well have been a false letter,
17 but at that time when somebody says that to you, I would accept it on its
18 face value. Whether it's true or not is a different matter.
19 Q. Just -- I just would like to clarify. You just mentioned
20 something that the Prosecution refers to it as a cunning fox. Does that
21 come from the Prosecution, this fox business, or does that come from you?
22 A. It comes from -- it came from me in reply to a question, yes.
23 Q. And did you ever discuss this fox name or nickname with
24 General Hadzihasanovic?
25 A. No, obviously not.
1 Q. I would ask you, General, to turn to a tab in your book, in the
2 documents that are in front of you, and to binder -- to tab 12.
3 MR. BOURGON: [Interpretation] Mr. President, this concerns two
4 documents that come after the ones we've just been looking at. It's a
5 letter, the number of which is P158, and the date of the letter is the
6 13th of June, 1993.
7 Q. [In English] General, can you look -- do you have this document
8 at tab 12?
9 A. Yes, I do.
10 Q. Can you first turn to the second page, which is the Bosnian
11 version of this letter.
12 A. Yes.
13 Q. Do you recognise this as being the document that was shown to you
14 on that occasion?
15 A. I don't recognise it, to be honest. It's a document in
16 Serbo-Croat. I cannot read Serbo-Croat. It may well have been the
17 document that was shown me, but I can't confirm that 100 per cent.
18 Q. Now, I ask you kindly now to turn to the first page, which is the
19 English version of this letter. And I'd like to go with you through this
20 letter because I feel it is important that we get your views on the
21 contents of the letter.
22 Now first, would you agree with me that this letter was addressed
23 to both the commander of the Army of Bosnia and Herzegovina as well as to
24 the Chief of Staff of the Army of Bosnia and Herzegovina?
25 A. Yeah.
1 Q. In the first paragraph, General, it says that "Since the
2 beginning of the war, there has been in Zenica some volunteers from
3 foreign countries, Arabs and Turks." You agree with this, what is said
5 A. Yes, I can see all that, yes.
6 Q. And there's also a group of Bosnians trained by these foreign
7 volunteers who called themselves the Guerillas. And the next line says
8 that these groups, the Guerillas and the foreign volunteers, have not
9 entered the ranks of the BH army in spite of being invited to do so. Can
10 you see this from this letter?
11 A. Yes.
12 Q. And if we follow, this letter also says that "They," meaning the
13 foreign volunteers, whoever they are, "and the Guerillas," also whoever
14 they are, "are contemplating proposals made to them by the army Chief of
15 Staff." Would that indicate to you, General, that as of that day
16 something was going on between the superior headquarters of General
17 Hadzihasanovic and these foreign elements to which General Hadzihasanovic
18 was not a party to?
19 A. It is -- well, the letter states what the letter states. Whether
20 it was delivered or not - we will assume that it would have been, because
21 the system works like that - and I accept what's in the letter.
22 Q. And if we move to the next line, it says that "They," the foreign
23 elements, whoever they are, "do not want to make public their decision
24 regarding their eventual entry into the army and they wish to communicate
25 only with top officials of the army."
1 Now, would that indicate to you, General, if we take the wording
2 of this letter, that this means that as of that date they are not -- they
3 have not entered into the Army of Bosnia and Herzegovina and that they
4 only want to communicate with the top levels?
5 A. That what the letter says. But you will recall yesterday I
6 mentioned the subject of deception and the use of these Mujahedin as a
7 deception weapon, as a genuine and quite useful method of waging war,
8 particularly on the psychological front.
9 Q. Now, General, we will see a number of documents today. We will
10 skim through a few documents, and then you can maybe give -- we can come
11 back on the issue of deception and see if the line of measures which was
12 taken can be referred to as "deception."
13 But for now I'll just indicate to you: Would it be a fair
14 reading of this letter to say that the Mujahedin want to keep their
15 eventual entry into the army secret and that they only want to deal with
16 the highest levels?
17 A. Which is what this letter says, and I would agree with that.
18 Q. And the last line of this paragraph, would that be a fair reading
19 of the last line, which says that they don't want to deal with the
20 commander of the 3rd Corps because in their opinion the only duty of the
21 commander of the 3rd Corps is to arrange a meeting? Is that -- would
22 that be a fair reading of this letter?
23 A. Yes.
24 Q. Now, if we look at the last paragraph of the letter -- sorry, the
25 next paragraph, where it says that "These," the foreign elements, "have
1 been in this territory even before the formation of the 3rd Corps," and
2 that "in fighting to date they've been acting outside the usual context
3 and even outside of lawful methods of conduct, which is detrimental to
4 the BH state and especially to the army." Would you agree that it would
5 be a fair reading from this paragraph that General Hadzihasanovic did not
6 approve of what these people were doing; he knew that they were there
7 for -- before he arrived, and that he actually disapproved and he thought
8 that this was very bad, both for the state and for the army? Would that
9 be a fair reading of this paragraph?
10 A. That would be -- excuse me. That would be a fair reading. But I
11 would also point out this is the matter that I had discussed, certainly
12 with Dzemal Merdan and possibly with General Hadzihasanovic, in that the
13 use of Mujahedin, whilst it might be an effective weapon, was also
14 detrimental to their cause because of the possibility of atrocities being
15 committed by the Mujahedin. We had discussed those two angles, that they
16 could be a benefit but they also internationally could be a problem.
17 Q. And, General, I cannot show you all the documents, but if I
18 suggest to you that this conversation where you talk about being
19 detrimental is well after the issue of this letter.
20 A. Yes, probably.
21 Q. Now, the last line of this paragraph - and I'll finish here for
22 this letter - says: "It is a known fact" - now, this is General
23 Hadzihasanovic speaking - "that some state organs and high-ranking Muslim
24 clergymen are behind them." Is by this line General Hadzihasanovic
25 telling his superiors that there is something going on, I don't know what
1 it is, but I want to find out? Is that -- would that be a fair reading?
2 A. Yes.
3 Q. I refer you to the last line of this letter, the last paragraph,
4 the last line, where it says: "In this connection, I am requesting your
5 stances and opinions regarding the solution to this problem because these
6 people are in my area of responsibility and I don't want to be held
7 accountable for the consequences of their actions"? Would that be -- is
8 that what you would expect from a reasonable commander who has a problem,
9 to consult his superiors and say, "What's going on?" And, "I don't want
10 to be responsible. Tell me what to do or do something"? Is that what
11 you would expect from a responsible corps commander?
12 A. Yes.
13 Q. Now, following this letter, General, it did happen at a later
14 time that in one of the comments in the milinfosum the content of this
15 letter was speculated as being rhetoric. Do you recall this event?
16 A. No, but that's quite possible that I would have put it in there,
18 Q. And would that be yourself or would that be your milinfo officer?
19 A. It would combination of discussions about the Mujahedin and
20 whether they existed or not and the letter and various other events.
21 Q. Now, General, would you agree with me that if you had seen the
22 content of this letter on the 13th of June this could have helped you to
23 understand what really was going on within the 3rd Corps and the actions
24 taken by General Hadzihasanovic? Would you agree with me?
25 A. It would have encapsulated what we had discussed at the meeting
1 about Mujahedin. I'm not sure it would have changed my opinion, and I --
2 well, I don't remember having received this. I don't think we received
3 this letter.
4 Q. Now, General, you had during this meeting with General
5 Hadzihasanovic an interpreter, did you?
6 A. We must have had.
7 Q. And the interpreter did not go through this letter and read it to
8 you. It wasn't important enough for you to see the contents of the
10 A. I don't think she did, no.
11 Q. Now, if I suggest to you, General, that further to this letter,
12 which was written by General Hadzihasanovic, there was in fact a reply by
13 the superior headquarters two days later and that in this reply - and I
14 ask you to turn to tab number 13, the next one in your document -
15 MR. BOURGON: [Interpretation] Mr. Judge, this -- Your Honour,
16 this is a document dated the 16th of June, 1993, and the number is P270.
17 It's an order from the BH army headquarters.
18 [Defence counsel confer]
19 MR. BOURGON: [Interpretation] Mr. President, there seems to be a
20 letter on the -- a mistake on the last document. It hasn't yet been
21 admitted into evidence, so it's not true to say that it is P270. But we
22 shall try and deal with the problem at the end of the cross-examination.
23 Q. [In English] General, you have this document in front of you
24 concerning an order issued by General Delic, or at least his signature
25 block is used. I'd like you to focus on the preamble of this letter.
1 First, you would agree by reading this letter that this is indeed a
2 response to the letter forwarded by General Hadzihasanovic; would you
4 A. Yes.
5 Q. Now, if you focus on the preamble of this letter, which says that
6 "Since the beginning of the war, volunteers from foreign countries and a
7 group of Bosnians, so-called Guerillas, have been staying on the
8 territory of Zenica." Now, this, you would agree, is the same language
9 used by General Hadzihasanovic in his letter?
10 A. Yes.
11 Q. Now, the next sentence, however, is a new sentence that is added
12 by the army headquarters, where it is mentioned "With the aim of their
13 focus engagement in our struggle." Would you agree that this change in
14 the preamble or the way the preamble is made is that it appears there is
15 some kind of intent on the part of the army headquarters to do something
16 and at least to get those foreign elements to fight alongside the Bosnian
17 army? Would you agree with this?
18 A. Yes.
19 Q. Now, if I turn to the order itself and paragraph 1 of the order,
20 in this order it is mentioned "Send these groups to Igman and merge them
21 with the independent detachment in Zuka's unit." Now, first we talk
22 about these groups to be forwarded or to be sent to Igman, and we are
23 talking about merging them with an army independent detachment. Would
24 you agree?
25 A. Yes.
1 Q. Now, you know, General, that at every level, whether we talk
2 about a corps or at the army level, there are subordinate units - for
3 example, the corps will have subordinate operational groups and brigades,
4 but that the corps will also have some corps assets attached directly to
5 the corps. You know this.
6 A. Yes.
7 Q. And at the army level it will be the same thing; army
8 headquarters will have, in this case five different corps. Are you aware
9 of this fact?
10 A. Yes.
11 Q. And that the army headquarters will also have some army assets.
12 Would you agree with that?
13 A. Yes, that is -- that can be done. It's not ...
14 Q. Now, this -- where we talk about here "Zuka's unit and Zuka's
15 independent army detachment," would you agree with me that this refers to
16 an army asset and not a corps asset?
17 A. I do not know that and I cannot agree that because I'm not aware
18 of where the SDK independent detachment sat or its order of battle or
19 anything. I was only aware of what was in my area of responsibility.
20 Q. Now, if I mention to you, General, that SDK actually means
21 "Supreme Command headquarters," I'm not asking you if you know. I'm
22 asking you if this would refer to this type of asset attached directly to
23 army headquarters.
24 A. If that's what it means, yes.
25 Q. And that what this order actually says is to kind of team up the
1 foreign elements with this army independent detachment.
2 A. Yes.
3 Q. Now, the next line, of course, says that "If they refuse or in
4 case they do not accept, it is mentioned, "Show them no hospitality and
5 eventually disarm them." Now, I would like to focus on the word
6 "eventually." And what would be your understanding if you received an
7 order like this?
8 A. My understanding was -- would be -- firstly, I'd be quite
9 concerned. Actually, all the army commander has done is actually throw
10 back the problem to the 3rd Corps commander and said, "You have to sort
11 it out, " effectively. And he said, "Then start and go and presumably
12 approach these people and ask them if they will transfer, and if they are
13 not to transfer, then you will use further means to enable them to
14 transfer," including, as it says "disarming."
15 Q. Now, would you agree, General - I believe you said you would
16 agree because you did mention this issue - that when a corps commander or
17 a senior officer receives an order it is not meant to be executed
18 blindly. Would you agree?
19 A. Yes.
20 Q. And that if General Hadzihasanovic had concerns over executing
21 the contents of this specific order, you would expect him to go back and
22 say, "That's not okay." Was that what you would expect from a corps
24 A. Yes.
25 Q. I'd like you to turn to the next document, which is tab 14, and
1 tab 14 is a telephone conversation between the army Chief of Staff and
2 General Hadzihasanovic. And I refer you to the second page, line 15. At
3 this moment in the conversation, General Hadzihasanovic appears to be
4 mentioning or asking "regarding the information that we have received
5 about those foreigners." Do you see this line on page 2?
6 A. Yes.
7 Q. And then a conversation - I'm not going to go through all of it -
8 but it appears that General Halilovic then said, "Yeah? Do you have a
9 problem?" And he says, "Yeah, I definitely have a problem. It cannot be
10 done that way. This is my third front line." Would you agree that what
11 General Hadzihasanovic is referring to is that he's already got his hands
12 full with 300 kilometres of Serb lines to maintain and an internal war in
13 his own area with the HVO, which is his second front; and that he just
14 cannot open a third front? Is that what this would be referring to?
15 A. That's what it would imply. It would imply his internal front,
16 as it were, was a problem that he didn't want to face.
17 Q. And as we mentioned yesterday, two generals placed in the same
18 situation might very well exercise command in a different manner but both
19 be very effective.
20 A. Yes.
21 Q. And although another general today may look at the circumstances
22 and say, "You had the possibility to execute this order," with the
23 information that General Hadzihasanovic had at the time, then this is
24 what we have to consider in assessing whether that assessment was right.
25 Would you agree?
1 A. Yes. But having been given this order, he has to then make a
2 decision as to where his priorities lie. And if he decides that that
3 third front line is his highest priority or should be his highest
4 priority, the decision will be made to deal with that highest priority.
5 Q. And you would agree with me that at that point in time we
6 discussed the mission that was given to General Hadzihasanovic and that
7 his mission was to maintain the front line, to create the corps, and to
8 create the necessary conditions to fight for Sarajevo?
9 A. I'd agreed that you said that, and we also discussed that whilst
10 maintenance of the aim was very important, I did point out that if
11 another priority came along, then you would have to change and deal with
12 that priority.
13 Q. And if, General, the assessment at the time was that the
14 resources required to take on this third front would compromise the most
15 important mission, that it was a fair assessment at that time to say, "I
16 cannot do it this way. I have to find another way but not to disarm
18 A. That's one way of dealing with the problem, yes.
19 Q. Now, General, I'll go on quickly to other issues which take place
21 A. Could I just ask: It is strange with letters like this which are
22 now produced in the court that they weren't given to me at the time. And
23 I don't quite understand why they weren't given to me at the time,
24 because it would have enabled me to better understand the situation. And
25 as they weren't given to me at the time, it is odd. I'd just say that.
1 Q. Well, this is entirely your understanding that this should have
2 been given to you. The only thing I can point out is that the answer to
3 the problem was given to you by General Hadzihasanovic, a letter was
4 shown to you, and that -- did he not tell you that he was taking measures
5 to deal with this problem?
6 A. Yes. But it would have helped his case enormously, would it not,
7 if he had produced the documentary evidence?
8 Q. That may be your assessment, General.
9 Now, if I suggest to you that a little later on there was a
10 further order, at least not an order but an authorisation which was
11 issued by the army headquarters or the Supreme Command headquarters,
12 which was an authorisation for an individual who was not attached to the
13 3rd Corps but who was working within the 3rd Corps to negotiate on behalf
14 of supreme army headquarters with the foreign elements or Mujahedin.
15 Please turn to tab 16 in your document and have a look at this
17 MR. BOURGON: [Interpretation] Mr. President, it is dated the
18 23rd of July, and it carries the signature block of the army commander,
20 Q. [In English] [Previous translation continues] ... Given to
21 Mr. Sakib Mahmuljin. Do you know Mr. Mahmuljin?
22 A. I do not.
23 Q. So you don't know what position, if any, was in the Army of
24 Bosnia and Herzegovina, did you?
25 A. No.
1 Q. Now, would you agree with me that this order was -- this
2 authorisation, sorry, is telling Mr. Mahmuljin that he is authorised to
3 negotiate on behalf of the commander of the army with the Mujahedin from
4 Zenica? Is that what this letter says?
5 A. Yes.
6 Q. And that the two issues that he is to look into is, first,
7 incorporation or the inclusion of the Mujahedin in the army, as well as
8 the use of this unit to fight against the Chetniks. Would you agree with
9 me that this means the fight against the Chetniks means the fight on the
10 Serb front line?
11 A. Yes.
12 Q. And that also what was at issue was the manner of its
13 resubordination to the 3rd Corps Command.
14 A. Yes.
15 Q. Now, the last line -- the last paragraph of this authorisation
16 gives that "The authorisation is issued with one aim, and that is solving
17 problems on the territory of Zenica." Would you agree with me that this
18 would refer to problems related to the Mujahedin, problems which were
19 brought to the attention of the army commander by General Hadzihasanovic?
20 A. Yes.
21 Q. And would you agree with me that the last line, where it is
22 mentioned that the letter cannot be used for any other purposes, means
23 that this was a very specific authorisation to deal with a specific
25 A. But it in one way countermands the previous letter, because
1 they're no longer being taken away to the Igman organisation; they're to
2 be left in the area.
3 Q. And would that indicate to you, General, that this was indeed a
4 more complicated problem than was initially assessed by the army
6 A. It indicates to me that the army commander has now said that
7 Mr. Mahmuljin is to come down and 3rd Corps to sort this out for
9 Q. And it would give some weight to the letter of General
10 Hadzihasanovic saying that these people only want to negotiate with the
11 highest of authorities and not with him?
12 A. No. What it implies to me is that the general has gone back to
13 Delic and said, "I can't deal with this problem. I need more assets,"
14 and Delic has come back finally and said, "Sorry, get on with it." At
15 that stage the relationship between subordinate and commander has got to
16 a stage where Delic has said, you know, "In question of priorities you
17 must now deal with this."
18 Q. And you understand now, General, that this authorisation was for
19 Mr. Mahmuljin to negotiate not on behalf of the 3rd Corps but to
20 negotiate on behalf of the army headquarters.
21 A. Yes.
22 Q. Now, if I move on quickly, General, and if I suggest to you that
23 further to this authorisation Mr. Mahmuljin actually forwarded back a
24 letter or a proposal to army headquarters to incorporate this unit
25 into -- or this unit or those foreign elements into the 3rd Corps. Now,
1 you did not know that such a thing took place in August of 1993, did you?
2 A. No.
3 Q. And you did not know either that the next day army headquarters
4 issued an order saying that they were to be taken on board and they were
5 to be resubordinated to the 3rd Corps by the end of August 1993. You did
6 not know that, did you?
7 A. I did not know that, and I assume you have the necessary
8 documentation, but it will ...
9 Q. And you did not know either, General, that the 3rd Corps
10 headquarters forwarded an order to the 306 Brigade saying to take them
11 into their ranks and that this same order was cancelled and never
12 activated. You don't know this fact -- these facts?
13 A. No.
14 Q. But if I tell you that such a letter does exist and that such an
15 order does exist and that it is dated 28 August - I would ask that you
16 turn to tab 19, simply to look at the date - and we see that the date is
17 28 August. Can you see this date?
18 MR. BOURGON: [Interpretation] Mr. President, the document is
19 dated the 28th of August, 1993, and the number is DH165, marked for
21 Q. [In English] Do you see, General, that this letter is dated
22 28 August 1993?
23 A. Yes.
24 Q. And do you see at the bottom of the letter that it was, in
25 handwriting, not carried out?
1 A. Yes.
2 Q. Now, would that indicate to you, General, that as of 28 August
3 1993 this issue was still not resolved but that they were working on it?
4 A. Yes.
5 Q. Now, if I turn, General, to a little later on in your tour,
6 because I don't have -- of course, we can't go through every document.
7 But a little later on in your tour you met with Mr. Merdan and you made
8 reference to this conversation yesterday when you were told by Mr. Merdan
9 that the commander of the Operational Group Bosanska Krajina or OGBK,
10 that is, Mehmet Alagic, had been given instructions to deal with the
11 Mujahedin problem in Travnik. Do you recall this event?
12 A. Yes. It was the 22nd of October.
13 Q. The 22nd of October. Now, would you agree with me that this
14 specific -- what Mr. Merdan was referring to at that time had nothing to
15 do with what we are talking about now of resubordination but actually
16 dealt with five Croats which had been kidnapped by unknown Mujahedin
17 element in Travnik? Would that recall some souvenirs for you?
18 A. Yes. Yeah.
19 Q. Now, I'd like to refer you to a letter on the 3rd of November,
20 when the incoming head of mission of ECMM - that is, Ambassador Garrod -
21 and I ask you to turn to tab 20 in your document. Now, tab 20 of your
22 document. And I refer you to page 8 -- sorry, page 7.
23 A. I am -- sorry, I may have --
24 MR. BOURGON: [Interpretation] Mr. President, it is a document
25 dated the 3rd of November and it bears the number P181, the subject being
1 a visit of the head of mission of the regional centre in Zenica -- to the
2 regional centre in Zenica.
3 Q. [In English] [Previous translation continues] ... Conversation
4 between General Hadzihasanovic and the commander -- and Mr. Garrod, to
5 paragraph 10. And he was asked by Mr. Garrod -- sorry, General. I'll
6 wait until you have the letter. It's tab 20 and page 8, paragraph 10.
7 A. Yes. I have it now, 8, paragraph 10. Thank you.
8 Q. And it says in this document, General, that when asked about the
9 Mujahedin - that is, Mr. Garrod asking General Hadzihasanovic - he said
10 that there were several kinds of Mujahedin. There was one lot which
11 consisted of foreigners. They were trying to solve the problem. You
12 agree that we've seen some actions taken in this respect, would you?
13 A. Yes.
14 Q. And that the solutions according to this conversation were either
15 to send them back to their countries or to integrate them; is that what
16 this document says?
17 A. Yes.
18 Q. And then General Hadzihasanovic also mentions that there were
19 also some criminals who were trying to call themselves Mujahedin. They
20 had arrested one who turned out to be a Croat and this man dressed as a
21 Mujahedin because it was easier to rob people.
22 "There was no special organisation of Mujahedin. Many of them
23 were simply criminals who were wanted by INTERPOL and it was part of the
24 Serb and Croat plan to exaggerate their influence and he was against
25 fundamentalism." And that he says to Mr. Garrod, "And you notice that I
1 was drinking Sljivovica last time we met."
2 Would you say from this conversation or the report of this
3 conversation, General, that General Hadzihasanovic is doing with
4 Mr. Garrod exactly what he did with you; he is highlighting the problem
5 he has with this Mujahedin and he is saying exactly what he's trying to
6 do and that he is indeed taking measures to deal with the problem? Would
7 you agree that this is what this paragraph --
8 A. That paragraph is stating that, yes.
9 Q. Now, this document, of course, is dated the 3rd of November. And
10 you know, General, that General Hadzihasanovic was -- changed assignment
11 as of 1 November and became the Army Chief of Staff, do you?
12 A. Yes.
13 Q. Now, would it be surprising to you that after this
14 conversation -- which is close to the time that you deployed out of
15 Bosnia or you redeployed to Germany and you were replaced by the
16 Coldstream Guards; is that correct?
17 A. Yes.
18 Q. Now, I'd like you to turn to the next document in your book,
19 tab 21. And in tab 21, General, there are two documents. I would like
20 you to refer to the second document. This document was prepared by
21 Captain Guinness, who basically was to the Coldstream Guards what Captain
22 Harrison was to you.
23 I ask you to take a look at paragraph 2 and to simply read with
24 me that it says: "The operational group in Travnik have no power over
25 the Mujahedin and there seems to be some considerable efforts by all
1 commanders to avoid blame. Beba Salko has had a major falling out with
2 Alagic over it and Cuskic always refers all question up to Alagic. I
3 think that everyone is not only embarrassed over the situation but also
4 face is being lost, as the Mujahedin are not under control."
5 Now, do you agree that this is an assessment that is made by the
6 unit which came into theatre after you?
7 A. It's an assessment, yes.
8 Q. And that this assessment is based on events - and you look at the
9 title of this letter, "Hostages being held by Mujahedin," events which
10 took place during the time of your unit in theatre. Would you agree?
11 A. Yes.
12 Q. Now, if we turn to the first page -- the first document in this
13 tab. This is a letter written by the commander of the Coldstream Guards,
14 General Williams. This letter is addressed to UNPROFOR, to Brigadier
15 Angus Ramsay. Now, I simply ask you to take a look at paragraph 1, the
16 last three lines, where it says: "Two missing hostages may be beyond
17 even the power of Mehmed Alagic, commander of the 3rd Corps of the
18 Bosnian army, as it is unclear whether he even controls the Mujahedin
20 Would you agree with me that it was the assessment at that time
21 of General Williams that the Mujahedin were not, as of 5 December, under
22 the control of the 3rd Corps?
23 A. That's his assessment at that time, yes.
24 Q. Now, I'd like to refer you, General, to one last document, which
25 is at tab 22.
1 MR. BOURGON: [Interpretation] Mr. President, this is a document
2 dated the 21st of February, 1994. It is a report sent by the Security
3 Service of the 3rd Corps to the Security Service in Zenica.
4 Q. [In English] Now, this, General, is a document that deals with
5 the Mujahedin issue. And if I look at paragraph number 1, it talks about
6 a conversation which was held with Mr. Abu Haris, who seems to have some
7 kind of a role with the El Mujahedin. Does that name ring a bell to you,
8 General, Abu Haris?
9 A. No.
10 Q. And does the name of the unit El Mujahed ring a bell to you,
12 A. No.
13 Q. And this, at the -- further down into this paragraph, it talks
14 about the majority of the foreign nationals and it talks about a
15 conversation. And I refer specifically to line 5. It is a conversation
16 which Abu Haris had with the commander of the Army of Bosnia and
18 Now, would this letter indicate, General, that as of February of
19 1994 the status of Mujahedin - at least these specific Mujahedins
20 mentioned in this letter - was still not resolved as of February of 1994?
21 A. That's what it would indicate, yes.
22 Q. Now, General, having gone through all these documents, would you
23 agree with me that the Mujahedin -- first of all, that we don't have the
24 knowledge -- or you don't have the knowledge as to whether there are one,
25 two, three, four, five, or many different Mujahedin elements? Would you
1 agree with me?
2 A. Yes.
3 Q. And based on your answers to my previous questions, that you
4 would agree that you knew nothing about the organisation of the
6 A. No. As I've said, I -- we had a number of sightings of Mujahedin
7 which were recorded, but nothing more.
8 Q. And these sightings were never into a combat situation and never
9 into an attack, because, in fact, rarely did anyone from BritBat ever
10 notice an attack being conducted; would that be a fair statement?
11 A. Yes.
12 Q. And that for all these reasons --
13 A. Well, no, wrong, it would not be a fair statement. A number of
14 attacks we did notice and were there at the time. It would be wrong to
15 say we never noticed an attack.
16 Q. And, General, because you answered that you may have noticed an
17 attack, if you had noticed an attack, it would be in the milinfosum,
18 would it?
19 A. It would have been, yes.
20 Q. So if the milinfosums are silent on actually sightings of an
21 attack being conducted, this would mean that you have not seen any
23 A. It would mean if they hadn't reported a particular attack, they
24 wouldn't -- perhaps not have seen it. They may have reported it the next
25 day as having happened, but at the time they may well not have seen it.
1 Q. And if I tell you, General, that all what you have in the
2 milinfosums that deals with Mujahedin or the majority of what is
3 mentioned about the Mujahedin is -- comes from the comment section of
4 your milinfosum, would you agree with me that this means that as a matter
5 of fact you never knew and the battalion never knew exactly what were the
6 Mujahedin, what they were doing, why they were there for, and that they
7 were not under command of the 3rd Corps?
8 A. The entries in the milinfosum were the best guess we had as to
9 what was going on, and that was exactly contained as you have said in the
10 comment. The facts when we saw them, the Mujahedin, were also included
11 in the milinfosum. What we put in the comment was a reasonable deduction
12 from what we had seen and had reported.
13 Q. Now, I'd just like to -- and I'm almost done -- in terms of --
14 you saw the name mentioned in one of the documents we've seen of Beba
15 Salko. Do you know who Beba Salko is?
16 A. Yes, I do. I've met Beba Salko -- I don't know what he is, but
17 I've met him on a number of occasions in Travnik, where I think he was
18 based. He had some sort of liaison function between 3rd Corps and
19 Travnik, I believe. He facilitated movement across front lines. I think
20 he was probably involved in some black marketeering, and he had an
21 unusual relationship with the Serbs across the Travnik front line.
22 Q. Now, would it be fair to say that Beba Salko was a source of
23 information that would be considered in drafting the milinfosum and your
25 A. What the liaison officer in Travnik or other people in Travnik
1 received -- information they received from Beba Salko would be looked at
2 and could be included in the milinfosum, but not always. But it was
3 evaluated and then considered.
4 Q. And would you agree with me that information coming by someone
5 who you believed to be involved in black marketeering and to have all
6 those -- all these special relationships cannot be reliable?
7 A. Not necessarily. It could be quite valuable.
8 Q. And would you agree with me, General, that the information in one
9 of the specific milinfosums, if it is reported that we now have to watch
10 for the reliability of this information because of what happened between
11 General Alagic and Mr. Beba Salko, you would agree with me that this
12 would not only affect your future consideration of what Beba Salko may
13 have told you, but also what he may have told you before?
14 A. It might well affect it, yes.
15 Q. And in such an event, would you agree with me that the
16 information that you had from your liaison officers was always coming
17 from people such as Beba Salko who were -- those who were willing to
18 speak to your liaison officers?
19 A. It would be incorrect to say the information we had was always
20 coming from people like Beba Salko. We got information from a number of
21 people, from local people, from others, but not always from people like
22 Beba Salko.
23 Q. Thank you, General.
24 One last issue and I'm done. It's the issue of propaganda.
25 Would you agree with me, General, that the Mujahedin issue is something
1 that was very high on the list of priorities of the HVO, who were
2 especially effective with propaganda on all types of their conflict with
3 the Muslims?
4 A. You're saying the HVO were especially effective in propaganda?
5 Not particularly, I wouldn't have said. They used propaganda. Both
6 sides used propaganda. It's a method to use.
7 Q. And to you they were not effective with propaganda.
8 A. Not particularly, no.
9 Q. I'd like to refer to just one document, to give you one example.
10 Tab 6 in your document, General. Now, this is --
11 MR. BOURGON: [Interpretation] Mr. President, this is a report
12 drafted by the witness himself. The date of the report is June 1993, and
13 it says "Formal complaint, HVO activities in Trnovac." That is,
14 contained in the document.
15 Q. [In English] [Previous translation continues] ... Having written
16 this report?
17 A. I entirely recognise this report. I wrote it myself. It is
18 based on my knowledge of that incident, and it actually reinforces my
19 comment that the HVO's propaganda machine was poor. This was a very
20 naive, unskilful, unsubtle attempt to discredit us, and it was actually
21 in terms of international or even any propaganda, pathetic.
22 Q. Now, General, would you agree with me that this issue that is
23 referred to in this letter refers to an event whereby the HVO stopped a
24 convoy which was escorted by your battalion and under force did have your
25 BritBat members on the side of the road, they took some boxes of
1 ammunition which they then loaded onto the truck from UNHCR; took a
2 camera -- a video camera out and filmed the issue in order to say,
3 "Surprise surprise, we find BritBat escorting boxes of ammunition via
4 UNHCR convoy." Is that what happened?
5 A. That's essentially what happened, yes.
6 Q. And you were complaining in this document about this "pathetic",
7 as you called it --
8 A. Yes.
9 Q. -- use of force against your battalion, and you warned the HVO
10 never to use such a video on public TV because then the world would know
11 what they're really doing. Is that what -- basically what you're saying
12 in this letter?
13 A. Yes. Yes.
14 Q. Now, I used the word "effective" a little earlier. Maybe I used
15 the wrong word. What -- I would like to make my question more precise:
16 Did the HVO extensively use effective or non-effective, in your view,
17 propaganda in -- as a weapon, as a tool to get the attention and to have
18 an impact on their conflict with the Army of Bosnia and Herzegovina?
19 A. Yes. Both sides used propaganda. But I would point out that it
20 was of -- in the HVO side, it was normally of this quality, which was
22 Q. Now, General, I just have one last question: Do you know
23 something about a foreign element called -- or at least an independent
24 element called the Fishhead Gang?
25 A. Yes. I believe the Fishhead Gang worked -- may have been
1 involved in an attack on some Italians on the road between Gornji Vakuf
2 and Travnik. I have might have got that wrong, but I seem to remember
3 they were operating in that area.
4 Q. And you know that the Fishhead Gang did not belong to either army
5 and was an independent group of bandits?
6 A. And it lived in an area of -- which was neither occupied by HVO
7 or ABiH, as far as I'm aware.
8 Q. But you know that they operated as a bunch of criminals and that
9 they, for example, hijacked a vehicle of Dutch military policemen, where
10 they stole both their vehicles and their weapons, and that they were
11 associated with a man called Paraga?
12 A. Yes.
13 Q. Do you recall these --
14 A. I recall the word, yes, and the name.
15 Q. Now, General, to finish my cross-examination, I would simply like
16 to confirm that you've had a number of dealings with General
17 Hadzihasanovic during your stay in Bosnia and you said all kinds of good
18 things about General Hadzihasanovic yesterday. Would you confirm that in
19 your dealings with General Hadzihasanovic that not only did he display
20 all the qualities that you did mention yesterday, but that always he
21 acted in a diligent manner to any request you brought to him and that he
22 always tried to do his best to help the UNPROFOR mission and that in
23 your view he was a commander who was interested in doing what he was
24 there to do and not to commit crimes?
25 A. I would agree that General Hadzihasanovic was a very capable
1 officer, and that was recognised quite clearly on his appointment and
2 moving across to be Chief of Staff of the Bosnian army, which is a
3 position of great responsibility and requires a feeling and a knowledge
4 of political events, as well as the military. And that to me was an
5 indication of his intelligence, his character, and his ability.
6 He was also an ex-JNA officer, I believe, of high rank, as a
7 colonel, and therefore he knew his responsibilities as a soldier and as
8 an individual to the way his business was conducted. He was always, as
9 you've said, very pleasant in our meetings and very helpful in our
10 meetings. I have not denied that. And as far as I can say, our
11 relationships were very cordial.
12 Q. Thank you, General.
13 One just last bit of information. I have a paper that was just
14 passed to me. When you -- you mentioned something yesterday about a
15 picnic. Now, would you agree with me, or maybe you did not, that this
16 event actually took place right beside the forward command post of
17 General Hadzihasanovic, near the Zepce area?
18 A. I'm sorry, I -- the picnic I referred to I thought took place
19 further south. Are you talking about a lunch in a small inn near Zepce?
20 Because I think we had --
21 Q. Absolutely, General.
22 A. Yes, that's the one. That wasn't a picnic, that was a lunch, as
23 it were; it was inside a building.
24 Q. And you could recognise that this was the forward command post of
25 General Hadzihasanovic --
1 A. Yes, had communications equipment there.
2 Q. Thank you very much, General. I have no further questions.
3 A. Your Honour, may I be allowed to make a comment?
4 JUDGE ANTONETTI: [Interpretation] Yes.
5 THE WITNESS: An officer called Cameron Kiggell has been referred
6 to yesterday and today. I would just like to point out that he was a
7 very junior officer in my organisation with limited training. He was
8 removed from the appointment of liaison officer at Zenica and moved up to
9 Tuzla and replaced by a much more experienced officer, who was in fact my
10 adjutant, Captain Andrew Jackson. I'd just like to point that out for
11 the Court.
12 MR. BOURGON: [Interpretation] Mr. President, this concludes our
14 JUDGE ANTONETTI: [Interpretation] Thank you.
15 We have another quarter of an hour before the break. I will now
16 give the floor to the other Defence team.
17 [Trial Chamber and legal officer confer]
18 MR. DIXON: Thank you, Your Honours. We don't have any questions
19 for General Duncan. I'm grateful.
20 JUDGE ANTONETTI: [Interpretation] Before I give the floor to
21 Mr. Withopf, as far as the documents are concerned, are you requesting
22 that they be tendered into evidence?
23 MR. BOURGON: [Interpretation] It's necessary to select the
24 documents, but I do intend to tender them into evidence. We could deal
25 with this later, Mr. President.
1 JUDGE ANTONETTI: [Interpretation] Mr. Withopf, as far as
2 re-examination is concerned, do you have any questions?
3 MR. WITHOPF: Mr. President, Your Honours, I have a number of
4 questions. It may take me some 15 to 20 minutes to conclude the
6 JUDGE ANTONETTI: [Interpretation] We have 15 minutes before the
7 break, so please go ahead.
8 Re-examined by Mr. Withopf:
9 Q. Good morning, General.
10 A. Good morning.
11 Q. General, I have two sets of questions I would like to address
12 with you. The first set deals with the responsibility of a commander,
13 and the second set will address a number of issues related to the
14 Mujahedin and all questions are asked because these issues have been
15 addressed by my learned friends from the Hadzihasanovic Defence.
16 Let's address the first issue first obviously. General, what
17 effect, what effect, if any, does the fact that one side to a conflict is
18 in a defensive posture when it comes to the responsibility of a
19 commander to invest and to refer potential violations of the law to the
20 legal -- to the appropriate legal authorities?
21 A. To my mind, it makes no difference whether you're in a defensive
22 posture or an attacking posture. The responsibility remains, to report
23 violations and investigate them.
24 Q. What effect, if any, does the fact that one's opponent in an
25 armed conflict may be considered an unlawful army under domestic law have
1 on the responsibility of a commander to investigate and to refer
2 potential violations of the law to the appropriate legal authorities?
3 A. If I just delay my answer until I've read very carefully what
4 you've just said.
5 It doesn't matter what the nature of the conflict is at all. The
6 laws still apply at all times. And it is one of the important things we
7 do at the minute in the British Army, where I have a detachment of
8 lawyers with me to make sure that when we go into a theatre everybody
9 understands entirely the status of forces, under whose law we are bound,
10 because we are bound from the moment we step in there, and that is very
12 Q. What effect, General, what effect, if any, does the fact that
13 one's opponents have committed war crimes have on the responsibility of a
14 commander to investigate and refer potential violations of the law to the
15 appropriate legal authorities?
16 A. It doesn't matter what your opponent is doing. It doesn't change
17 the way you do your own business. You stick by your guidelines and your
18 laws, because otherwise your discipline breaks down and you unhinge your
20 Q. And the very last question in the line of this sort of questions,
21 General: Does it make a difference in respect to the obligation or to
22 the duty of a commander to investigate allegations of war crimes
23 committed by his subordinates, whether he receives the respective
24 information from within his own chain of command, a situation addressed
25 yesterday, or - and now I will suggest three scenarios - when the event
1 or when the information comes from open source, such as radio and TV
2 broadcast; if the information comes from the opposite side, more
3 particularly the enemy; and number three, if the information comes from
4 more the political side.
5 A. Thank you. It makes no difference. And I'm sure everybody in
6 the court is aware of the situation in Iraq at the moment, and there have
7 been accusations made from all those sources against the British Army.
8 And the British Army has conducted a full investigation into those
9 accusations, and there was a statement in the House of Parliament by the
10 Minister for Armed Forces. That is really a graphic illustration of what
11 has happened when accusations have been made.
12 Q. Thank you, General. Let me please turn now to the second issue I
13 wanted to briefly discuss with you, the issue of Mujahedin. In the
14 course of the cross-examination of the Defence, you were shown a letter.
15 It's called "Authorisation," and the letter stems from Rasim Delic, the
16 then-Supreme Commander of the ABiH. And it's Prosecution Exhibit P202.
17 MR. WITHOPF: In order to ensure a smooth running - I don't know
18 the exact tab in the Defence documents bundle. Can the witness please be
19 provided with a copy of Prosecution Exhibit P202.
20 Q. General, I understand you have in front of you the document which
21 is called "Authorisation," of 23rd of July, 1993.
22 A. Yes, I do. Yes.
23 Q. My learned friends from the Hadzihasanovic Defence in asking you
24 questions in relation to this letter have suggested - and I refer to page
25 24, line 12 - that Mr. Sakib Mahmuljin was not attached to the 3rd Corps.
1 If I may please draw your attention, General, to the third line
2 of this authorisation, where it reads: "Authorising Mr. Sakib Mahmuljin,
3 a member of the 3rd Corps Command." What would be your comment, whether
4 the suggestion of the Defence would be right or wrong?
5 A. Well, there appears, certainly, to be a mismatch between the
6 status of command and who Mr. Mahmuljin is working for.
7 Q. And if I may, please, General, draw your attention to what is
8 written under "2" in the very same document, where it says: "The use of
9 the unit-enjoined struggle against the Chetniks and the manner of its
10 resubordination to the 3rd Corps Command."
11 Does the word "resubordination" imply that this unit was
12 previously subordinated to 3rd Corps Command?
13 A. Yes, it does.
14 MR. WITHOPF: The exhibit can please be removed from the witness.
15 Q. There was an issue, General, and there were questions about
16 disarming the Mujahedin. Two questions: Would it have made sense for
17 Hadzihasanovic to approach the Mujahedin who were operating in his area
18 of responsibility and in conjunction with his forces? Would it have made
20 A. Yes, it would have made sense.
21 Q. And did Hadzihasanovic at the time, did he have the military
22 means to disarm the Mujahedin?
23 A. Yes, he did have the military means to do it. There were
24 military police and others who could have done it, and it could have been
25 done in a fairly abrupt manner, if necessary. I think he had that
1 authority from Delic, if necessary, to use force.
2 Q. And in your view and based on what you got to know and what
3 you've seen, did he have the means to do so prior, including prior to the
4 letter from Delic?
5 A. Yes, I think he did.
6 Q. General, you were shown quite a number of documents by my learned
7 friends from the Defence. Do these letters change your views, your views
8 you expressed yesterday, in respect to the use of Mujahedin within
9 3rd Corps and by 3rd Corps?
10 A. There are two elements in that: The first is I find it very
11 strange if General Hadzihasanovic wanted to get my agreement and help
12 with the Mujahedin that he did not show me some very, very serious
13 documents and the correspondence he was having. Now, he didn't have to
14 disclose it, but had he disclosed it, it might have made a difference.
15 On the other hand, as I have mentioned before - and I thought we
16 might have discussed it a little bit further this morning - is this
17 question of using the Mujahedin and the way they do their business and
18 deception and the propaganda tool they represent and the combat
19 multiplier of their use on the battlefield. Whether they were there or
20 not I think was a great help to them and a problem because of the
21 international dimension.
22 Q. And my very last question, General: Do the documents that were
23 shown to you by the Defence, do they change in any way your yesterday's
24 comments and your yesterday's testimony in respect to the out-of-control
25 excuse used by Hadzihasanovic?
1 A. No, it doesn't change my view at all. If it is a priority that
2 they are to be removed, then you should deal with that priority,
3 temporarily change the task, get it sorted, and get back to your main
5 Q. Thank you very much.
6 MR. WITHOPF: Mr. President, Your Honours, I have no further
7 questions at this time.
8 JUDGE ANTONETTI: [Interpretation] Would the Defence exceptionally
9 like to be given leave to ask some more questions?
10 MR. BOURGON: [Interpretation] Mr. President, I would like to be
11 granted exceptional leave to ask a couple of questions with regard to
12 what the general said in the last line, since the general has to a
13 certain extent contradicted what he told me with regard to whether
14 General Hadzihasanovic had the means to take action.
15 JUDGE ANTONETTI: [Interpretation] Please go ahead and ask your
17 Further cross-examination by Mr. Bourgon:
18 Q. [Previous translation continues] ... You said that the first
19 thing you will do if you are to take on someone, if you are to attack
20 someone, is you have to know who that enemy is and what the force and
21 what is the strength and where this enemy is and who the enemy is. Would
22 you agree with me that this is something that any army commander before
23 launching an attack will identify who the enemy is, and that is the first
24 things that identified in any military order in the world? Would that be
25 a fact, General?
1 A. Not necessarily. He may wish to make sure he's got his force
2 protection in place before he does that. That's not a guarantee. If
3 you're trying to say it's important to identify your target, that's
4 absolutely right. But it's clear from the pieces of paper I've seen
5 that there was a recognised problem with the Mujahedin which people knew
7 Q. General, you are responsible for training the complete British
8 Army. Are you telling me that you're going to tell the British Army that
9 it would be okay to launch an attack without knowing who the enemy is?
10 A. No.
11 Q. Now, would it be fair to say that if in any written order in the
12 world, that the first thing is situation and then, which includes as the
13 first thing, the enemy and who the enemy is?
14 A. That can be included as the first thing, yes. It's not
16 Q. And General, you did not know -- you had no information about the
17 Mujahedin, in terms of who they were, what the money was, what the
18 resupply was, how many there was, how many units there was, where they
19 were, who were their chief, what their relationship with the region was,
20 you knew nothing about that. How can you today come in this courtroom
21 and say that General Hadzihasanovic had the power to take on an unknown
22 enemy that you don't even know who this enemy is? Please comment on this
23 question, General.
24 A. I have said on a number of occasions that I'm not sure they
25 existed or were used, but the fact that they were around was a powerful
1 tool to be used.
2 Q. So you're saying, General, that you take back your comment --
3 A. No, I don't take back my comment.
4 Q. And you know for a fact that he could take this problem --
5 A. No, I'm saying it was part of a very, very good-class deception
6 plan and very useful for them to use it.
7 Q. The question put to you, General, was did he have the military
8 means and was it proper for him to take on the Mujahedin? Your answer
9 was yes. I put it to you that you have no information whatsoever that
10 could allow you to make a judgement here in this courtroom today in
11 replacement of what General Hadzihasanovic could do on the place, in the
12 circumstances at the time, according to his evaluation and assessment of
13 the situation. Would you agree?
14 A. You have shown me papers which implied there was a great problem
15 for the 3rd Corps with the Mujahedin --
16 THE WITNESS: I'm sorry, sir.
17 MR. BOURGON: [Interpretation] Thank you, Mr. President, I have --
18 JUDGE ANTONETTI: [Interpretation] I would have a question,
19 because the two other Judges don't have any questions for you. I have a
20 question, but it is in another area.
21 Questioned by the Court:
22 JUDGE ANTONETTI: [Interpretation] The Defence has produced an
23 interview that you had for a magazine. In this interview, which I am
24 quoting from by memory, you indicated that in your house you were visited
25 by representatives of the international press - CNN, World News, Sky
1 News, ZDF, and others - and relations with the press according to you
2 were good, they didn't cause any problems, but you made certain
3 observations off the record. When you met the press, did your
4 authorities know about it or was that also off the record in relation to
5 your superiors?
6 A. Sir, it's my experience that any comment to the press is not on
7 the record -- sorry, is not off the record. Any comment to press will be
8 used in future by them. I had very little support from the UK at that
9 time, and on my second day in command I discovered 13 television lenses
10 pointing at me and therefore there was high pressure. I made a point of
11 getting to know the press not to get them on my side but to make sure
12 they understood as much of my task and what I was trying to do as they
14 I occasionally, perhaps once every fortnight, had a personal
15 brief with them. The day-to-day handling of my press was done by a
16 senior major appointed for that task and trained for it. But just
17 occasionally, it was quite useful for me to have a one-to-one chat with
18 them and I realised that anything I said to them could be published,
19 because that is the nature of press nowadays. So does that make it clear
20 or not?
21 JUDGE ANTONETTI: [Interpretation] Did you know that the 3rd Corps
22 also had a press centre and the number was 410-349? Did you have
23 contacts with press officers of the 3rd Corps precisely to exchange
24 information with them?
25 A. I don't -- sir, I don't believe we did have direct contact with
1 members of the press corps -- from the 3rd Corps.
2 JUDGE ANTONETTI: [Interpretation] Very well.
3 The Judges have no additional questions.
4 Yes, Mr. Withopf.
5 MR. WITHOPF: Mr. President, Your Honours, I note -- and I
6 noticed that the witness was interrupted to conclude his comments on a
7 question which was asked by my learned friends from the Defence, and I
8 refer to page 47, lines 20 to 24. And I think the general, the witness
9 was asked whether Hadzihasanovic had any means to deal with the Mujahedin
10 issue. I would like that the general be given a possibility to finish
11 his comments, but I would certainly leave it to my friends from the
12 Hadzihasanovic Defence to re-ask the question and to allow the general,
13 the witness, to finish his comments, since he didn't have the chance to
14 do so.
15 JUDGE ANTONETTI: [Interpretation] To save time, I'm going to put
16 the question to the witness directly.
17 In response to the Prosecution, you said that the 3rd Corps had
18 the means to deal with this situation of the Mujahedin. The Defence put
19 another question to you, and the Chamber didn't consider it necessary for
20 you to reconfirm it. But as this is a crucial issue, I'm asking you once
21 again: Did the 3rd Corps have the means to resolve the problem of the
22 Mujahedin? Specifically, in view of the fact that there was an order
23 that was shown to you which said that if necessary they should be
24 disarmed. So we would like to have your response as a military officer
25 of great experience.
1 A. Sir, thank you. I believe it is a matter of priorities. If you
2 are fighting on a number of fronts and some major event occurs inside
3 your organisation or inside your territorial area of responsibility that
4 is causing you huge problems, it may well be that you have to say,
5 "Right, I have to pull out the thorn in my side so I can carry out
6 fighting this battle. And I must do it as quickly and as efficiently as
7 possible." And so I believed -- and looking at the 3rd Corps and my
8 knowledge of the 3rd Corps, that they had the means to take this thorn,
9 the Mujahedin, and get rid of them and then carry on fighting the battle.
10 Because later on during that year there is mention made of Mujahedin
11 doing actions and various other things. If they wanted to remove it, it
12 should have been moved up in their priorities and done as quickly as
13 possible. Sir.
14 JUDGE ANTONETTI: [Interpretation] Very well. Thank you for that
15 clarification. The Chamber wishes to thank you for coming to The Hague
16 to testify over a period of two days. We wish you a safe journey home
17 and best wishes in the continuation of your military career. Thank you.
18 I'm going to ask Madam Usher to be kind enough to escort you out
19 of the courtroom.
20 Unless Mr. Withopf has something to add. No.
21 MR. WITHOPF: Not in respect to the testimony of the witness.
22 The witness can be taken out, please.
23 THE WITNESS: Sir, thank you very much.
24 [The witness withdrew]
25 [Trial Chamber and legal officer confer]
1 JUDGE ANTONETTI: [Interpretation] I'll give you the floor in a
3 But regarding the documents, Mr. Bourgon, have you had time to
4 think them over, think about them?
5 To assist you, we have 24 documents in this binder. Apparently
6 several have already been tendered.
7 MR. BOURGON: [Interpretation] Mr. President, I should like to ask
8 for the tendering of the following documents: On the list that we have,
9 the fifth document; that is, the order from the Bosanska Krajina
10 Operational Group dated the 5th of July, 1993.
11 Also, document number 6, that is, the complaint that was
12 recognised by the witness as a complaint that he made to the HVO
13 regarding the incident with the UNHCR truck.
14 Then I go on to number 23; it is an article written by the
15 witness entitled "Operating in Bosnia." Colonel Duncan is the author and
16 it is dated June 1994. Those are the only three documents,
17 Mr. President, that we would wish to be admitted. The others have either
18 already been admitted or we are not asking them to be admitted.
19 JUDGE ANTONETTI: [Interpretation] Very well.
20 Mr. Withopf, regarding the tendering of documents 5, 6, and 23,
21 no objection?
22 MR. WITHOPF: No objection, Mr. President.
23 JUDGE ANTONETTI: [Interpretation] Very well.
24 Mr. Registrar --
25 You have something to add?
1 MR. BOURGON: [Interpretation] Thank you, Mr. President. A
2 detail. Document number 12, I said that it bore the number P158. In
3 fact, it is DH73.
4 JUDGE ANTONETTI: [Interpretation] So, Mr. Registrar, three
5 numbers for documents 5, 6, and 23.
6 THE REGISTRAR: Your Honours, the document "Order from OGBK" gets
7 Exhibit Number DH171.
8 The document "Formal complaint, HVO activities" gets the exhibit
9 number DH172.
10 And the document "Operating --" the newspaper article "Operating
11 in Bosnia" gets the exhibit number DH173.
12 JUDGE ANTONETTI: [Interpretation] Thank you.
13 Mr. Withopf, it's time for the break.
14 MR. WITHOPF: This actually deals with the break. I would
15 respectfully request to have a break of about 45 minutes to rearrange my
16 documents for the document discussion.
17 JUDGE ANTONETTI: [Interpretation] Very well. We will resume at
18 half past 11.00.
19 Are there any problems regarding the additional time for the
21 MR. BOURGON: [Interpretation] I don't know. I don't understand
22 what we intend to do. We have five or ten documents. I have nothing
23 against 45 minutes, but is there something new that I am not aware of?
24 JUDGE ANTONETTI: Mr. Withopf, what was envisaged was for
25 Mr. Bourgon to take the floor to discuss five examples that he has; then
1 Mr. Dixon, who grouped the documents into categories, will take the
2 floor. Of course, the Prosecution will respond. And does that mean that
3 you intend to produce other documents after the Defence? Because -- what
4 is the reason for which you are asking for this additional time? 45
5 minutes in all. You need three-quarters of an hour to do what exactly?
6 MR. WITHOPF: Mr. President, the Prosecution has no intention to
7 discuss any further documents as the ones which have been indicated by my
8 learned friends from the Defence.
9 Mr. President, you certainly do understand that I wish to briefly
10 thank the witness who just left the courtroom, and then I have to take
11 care of the documents. I have to bring down -- That's the reason.
12 JUDGE ANTONETTI: [Interpretation] Oh, I see. I see.
13 It is quarter to 11.00. We will resume in exactly three-quarters
14 of an hour, which means at half past 11.00.
15 --- Recess taken at 10.45 a.m.
16 --- On resuming at 11.30 a.m.
17 JUDGE ANTONETTI: [Interpretation] Before giving the floor to
18 Mr. Bourgon, I shall give the floor once again to the registrar, because
19 apparently there seems to be an error with the numbering of the
21 Mr. Registrar, will you give us the numbers for those three
22 documents once again.
23 THE REGISTRAR: Your Honours, I apologise. There was a mistake
24 in the transcript of the 11th of May, 2004 on page 7170. The 10 daily
25 reports drafted by the witness Gerritsen and tendered by Ms. Residovic
1 got a wrong number. The right number must be DH171 and not DH170.
2 As a consequence, the document "Order from OGBK" tendered today
3 cannot get Exhibit Number DH171, but must get the next free number, which
4 is DH174.
5 JUDGE ANTONETTI: [Interpretation] Mr. Registrar, can we hear the
6 three new numbers for the documents; the first, the order of the Bosanska
7 Krajina Operations Group; the document of the 31st of May, and the
8 document of 1994.
9 THE REGISTRAR: Your Honours, the "formal complaint HVO" gets the
10 exhibit number DH172; then the newspaper article titled "Operating
11 Bosnia" get it is exhibit number DH173; and the order of OGBK gets the
12 exhibit number DH174.
13 JUDGE ANTONETTI: [Interpretation] Very well.
14 Mr. Bourgon, you have the floor.
15 MR. BOURGON: [Interpretation] Thank you, Mr. President. I only
16 have a few documents on which I should like to make a few observations
17 for the Chamber this morning.
18 I shall begin with document 157 - that was according to the
19 latest numbering used by the Prosecution. It is a document dated the
20 15th of April, whereas on the list we are told that the date of the
21 document is the 25th of April. Perhaps it would be a good idea,
22 Mr. President, if my learned friend from the Prosecution has the
23 original, because I have a few observations to make regarding this
25 JUDGE ANTONETTI: [Interpretation] Mr. Withopf, do you have the
2 MR. WITHOPF: Mr. President, Your Honours, I have the original,
3 and it can be handed over to my learned friend from the Defence.
4 MR. BOURGON: [Interpretation] Thank you, Mr. President.
5 I now have the original in my hands - which is a photocopy,
6 actually. In the archives they had a photocopy - and this document bears
7 a stamp coming from the Zagreb archives. In this particular case, I
8 should like to show this document to the Chamber to be able to make a few
9 observations about it.
10 Briefly, the remarks of the Defence are similar to those already
11 made with respect to the use by the Chamber of this document without the
12 assistance of a witness. This is a document coming from the Croatian
13 Defence Council, that is, the HVO. We do not know the person to whom the
14 document is addressed, whether it is the Defence Department, Mr. Ivica
15 Lucic. We also don't know who it is that appears at the end of this
16 letter in the signature block; is it Mr. Anto Sliskovic. The document
17 bears several lines drawn by hand as well as certain notes in the
18 margins. The document is dated the 15th of April, and as I was saying,
19 on the list that we have it is indicated that the date of this document
20 is the 25th of April.
21 For these reasons, Mr. President, we believe that a witness is
22 necessary for the Chamber to be able to derive the proper use from this
24 JUDGE ANTONETTI: [Interpretation] Very well. Continue.
25 MR. BOURGON: [Interpretation] The next document is a document 419
1 on the Prosecutor list. I don't need the original.
2 MR. WITHOPF: Mr. President.
3 MR. BOURGON: [Interpretation] My comments regarding this document
4 are limited to saying --
5 JUDGE ANTONETTI: [Interpretation] Mr. Withopf, you wish to
6 respond? Document by document or globally?
7 MR. WITHOPF: Mr. President, there will obviously be a certain
8 extent of repetition; however, the Prosecution would prefer to respond
9 document by document, as we did last time.
10 JUDGE ANTONETTI: [Interpretation] Very well, then. What do you
11 have to say regarding document 157?
12 MR. WITHOPF: Mr. President, Your Honours, very briefly.
13 Document 157 stems from the Croatian State Archive. As all documents
14 from the Croatian State Archive - and I have given explanations a few
15 days ago - are photocopies only, and I have explained the procedure as to
16 how such documents were received by the Office of the Prosecution. It's,
17 however, an official document; it has the stamp of the Croatian State
18 Archive on the top right-hand corner.
19 The document is relevant. It concerns the kidnapping of Zivko
20 Totic and the control of MOS members by the accused Hadzihasanovic.
21 My learned friend from the Defence is right; there are
22 handwritten remarks on the right-hand side of the document. And my
23 learned friend also is right in saying that the document has a certain
24 date which is not quite correctly reflected in our list. This is purely
25 an oversight from our side.
1 Again, that's probably an issue we will repeatedly discuss today.
2 It only can touch on the probative value of the document but not on the
3 admissibility of the document. And I wish to draw the attention of the
4 Trial Chamber to the fact that Defence themselves recently have tendered
5 into evidence, and it was admitted, a document in which significant
6 portions were actually highlighted and an explanation couldn't be given.
7 Therefore, again, it's the probative value only, but it can't
8 touch the admissibility of the document.
9 Thank you very much.
10 JUDGE ANTONETTI: [Interpretation] Very well. I'm returning the
12 The second document, please, 419.
13 MR. BOURGON: [Interpretation] Thank you, Mr. President.
14 Before addressing this document, 419, I just have one remark to
15 make. With regard to each document, my learned friend goes back to
16 saying that there's a question of the probative value and not its
17 admissibility that is being addressed. And according to the
18 representations made by the parties, we feel that all documents have to
19 be a minimum of probative value to be admitted. And it is at this stage
20 that the Defence is making these observations with regard to certain
21 documents that don't have that minimum threshold of probative value
22 without the support of additional evidence.
23 Document 419. The observation of the Defence are limited to the
24 fact that we only have a summary in the English language. We are of the
25 opinion that all documents should be -- that are going to be tendered
1 should be translated in full and that that complete translation should
2 reflect each line of the document. That is our only remark regarding
3 document 419.
4 The next document, Mr. President --
5 JUDGE ANTONETTI: [Interpretation] Wait a moment, please.
6 Mr. Withopf, document 419, the Defence is telling us that the
7 English translation is provided only of the summary of that document.
8 MR. WITHOPF: Mr. President, if I may please hand over the
9 original of the document, which may be helpful in addressing this issue.
10 Document 419 is the official response from the Cantonal Court in
11 Zenica to an official OTP request for assistance in respect to the
12 operation of the Zenica District Military Court. It's obviously highly
13 relevant, since it contains information about the establishment of the
14 Zenica District Military Court and the judges who worked there between
15 January 1993 and March 1994.
16 It makes reference and it provides information on war crime
17 trials, and it also says in the document that in respect to BiH army
18 members, not a single case was tried during the period in question.
19 The issue as raised by my learned friend from the Hadzihasanovic
20 Defence, this document has attached the exchange of letters between the
21 Office of the Prosecutor and the Bosnian authorities, and it's my
22 understanding that my learned friend from the Defence is referring to
23 these letters in saying that no full translation was provided. The
24 Prosecution, of course, if requested to do so, is certainly in a position
25 to provide a translation of this letter exchange. Otherwise, I
1 personally, with my limited knowledge of the B/C/S language, am not in a
2 position to judge as to whether each line of the main document has been
3 translated. If my learned friend, however, would tell us which line or
4 lines are missing, we will take care of the full translation.
5 It's my understanding, however, that the full translation of the
6 document has been provided.
7 JUDGE ANTONETTI: [Interpretation] Mr. Bourgon, you have an
8 interpreter at your disposal, so she can translate the text immediately
9 for you.
10 MR. BOURGON: [Interpretation] Mr. President, we have here the
11 original that we are seeing for the first time, and we have just learned
12 that this is a request from the OTP, which is something that we didn't
13 know. The documents that we had consisted only of the letter and not the
14 other documents. So we didn't even know that it was a request from the
16 Looking at the serial number, we couldn't know that it came from
17 the Prosecution. So we don't know whether there are other documents
18 attached, because the original is quite different. There's a request
19 from the OTP dated 2002, with the stamps and originals, and this letter
20 as well.
21 So, Mr. President, clearly, that this document is not complete.
22 We only have the response, without knowing the context within which the
23 document was produced. And that is why we need to have a witness present
24 in the chamber to tell the Judges.
25 JUDGE ANTONETTI: [Interpretation] Move on to the third document.
1 Madam Usher, will you pick up the document, please.
2 MR. BOURGON: [Interpretation] The next document is 248, and we
3 have the same observations to make with regard to that document. It's a
4 document that is again a summary that has been translated. We are
5 looking at the document, the translated document, which we received on
6 two occasions: A summary and then a new copy with some additional
7 comments regarding this document have to do with the passages that were
8 highlighted. Perhaps we need to see the original document for this
10 This is a document dated 1994, which appears to be similar in
11 shape as the last document, because it was a request sent by the
13 JUDGE ANTONETTI: [Interpretation] Madam Usher, will you pick up
14 the document, please.
15 MR. BOURGON: [Interpretation] I have the document with me now,
16 Mr. President.
17 The document, Mr. President, comes from the military court in
18 Travnik. The original doesn't give us more information regarding the
19 context within which the document was produced. We know it is dated the
20 20th of May, 1993. As the Chamber is able to see, it is a document that
21 the Defence may easily need. It could use this document, because this is
22 a document relating to measures taken by the 3rd Corps. And true to our
23 policy with regard to documents, we feel that such a document requires a
24 witness for the Chamber to be able to use it.
25 This document could have been used or at least shown to a witness
1 that did appear in this courtroom.
2 Those are the only observations that we have to make regarding
3 document 248.
4 JUDGE ANTONETTI: [Interpretation] Mr. Withopf.
5 MR. WITHOPF: Document 248 is a document that stems from the
6 Sarajevo collection and was received in a manner I have provided
7 extensive information about. As my learned friend already mentioned,
8 it's a letter of the Travnik District Military Court to 3rd Corps command
9 making reference to information by Mehmed Alagic, the commander of the OG
10 Bosanska Krajina about crimes committed by soldiers in Travnik and it
11 details the activities of the court.
12 It's my understanding, Mr. President, Your Honours, that a full,
13 official CLSS translation has been provided, and I would please again ask
14 my learned friend from the Defence to indicate which portions of the
15 original document appear to be missing. And again, the Prosecution would
16 be very happy to provide additional translations if necessary.
17 In respect to the issue whether a witness is needed or not, the
18 Prosecution maintains its view that even if the document is not discussed
19 with a witness, it still has probative value and the probative value is
20 certainly higher than the hurdle Defence is trying to use in respect to
21 the non-admissibility of the document.
22 JUDGE ANTONETTI: [Interpretation] The fourth document, please.
23 MR. BOURGON: [Interpretation] Thank you, Mr. President.
24 The next document is 91. It is a document dated the 1st of June.
25 Could I see the original, please?
1 The question that arises in this case, Mr. President, with
2 respect to this document is that it is -- emanates from the Croatian
3 Defence Council from the forward command post at Vitez.
4 If we look on the list of addressees to whom this document was
5 apparently sent, we see that it should have been sent to the commander of
6 the Bosnia-Herzegovina army -- no, I'm sorry, to the 3rd Corps commander,
7 to the commander of the HVO army, to the Monitoring Mission of the
8 European Community, to the British Battalion situated at Bila, to the
9 joint command of the army in Travnik, and also to the International
10 Committee of the Red Cross.
11 Mr. President, we have no information as to whether anyone
12 received this document or not. On the original, there is one stamp, and
13 from which we cannot see whether anyone received this document beyond the
15 In order to derive any kind of use from this document, for it to
16 have any probative value, we need to know whether the document was indeed
17 sent and received by one of the entities to which it was addressed
18 outside the HVO. The stamp could be a stamp of reception, which does not
19 appear, which was not translated. Therefore, on the draft translation
20 the stamp does not appear, whereas in the B/C/S version we do see the
21 stamp. And from this, one might conclude that it was received on the 1st
22 of June, but we don't know by whom. However, we do see letters "HS HVO"
23 which probably means "the Supreme Command of the HVO."
24 This was never seen by anyone outside, and if it was seen,
25 Mr. President, we need to have a witness to tell us that for the Chamber
1 to be able to use it. In the absence of that evidence, the document does
2 not satisfy the minimum threshold to be admissible and to be of any use.
3 JUDGE ANTONETTI: [Interpretation] We shall have a look at it.
4 Mr. Withopf.
5 MR. WITHOPF: Mr. President, Your Honours, document 91 is an
6 original copy of a document from the Croatian State Archive. It has the
7 official stamp on the top right-hand corner. It contains information
8 about wrongdoings of members of the ABiH in Travnik on 1st June 1993,
9 obviously a few days prior to the main attack in the area on 8 June 1993.
10 A witness is mentioned in this document who testified before this
11 Tribunal in this trial and confirmed the allegations.
12 In respect to the more technical issue, as mentioned by my
13 learned friend, the stamp on the original actually has been translated.
14 The contents of the stamp can be seen in the translation which is
15 contained in the document binder. The document also says that it was
16 submitted, number one, to the addressees.
17 I wish to draw the attention of the Trial Chamber that this is a
18 document that was received from the Croatian State Archive obviously
19 indicating that the Croatian State Archive usually doesn't have the ABiH
20 stamp on their documents.
21 Thank you very much.
22 MR. BOURGON: [Interpretation] Mr. President, by your leave, I
23 should simply like to underline that the stamp does not appear on the
24 translation. What does appear on the translation is the last block of
25 the letter just before the signature block with Tihomir Blaskic. That
1 information does appear, but the stamp itself does not appear on the
3 Also, my learned friend has underlined something very important,
4 and that is that one of the persons mentioned in this document did appear
5 before this Chamber. My learned friend tells us that this witness
6 confirmed what is contained in this document; then the document should
7 have been tendered together with the witness. But to say today that the
8 witness confirmed the content of the document is not sufficient for a
9 document to be admitted when we don't know whether it was received by
10 anyone at all.
11 JUDGE ANTONETTI: [Interpretation] Very well.
12 Fifth document, please.
2 MR. WITHOPF: Mr. President. Mr. President, this witness --
3 JUDGE ANTONETTI: [Interpretation] Yes, Mr. Withopf.
4 MR. WITHOPF: This witness is a protected witness, and we are in
5 public session.
6 JUDGE ANTONETTI: [Interpretation] Mr. Registrar, prepare an order
7 to redact page 64, line 25, to redact the names, and line 22 as well.
8 Please continue.
12 If we look at the contents of this document, we don't see why the
13 Prosecution is proposing a document dated 1997 about events that occurred
14 in 1993; and, furthermore, a witness appeared in court and he was never
15 questioned on this subject. The witness appeared under the pseudonym ZI.
16 JUDGE ANTONETTI: [Interpretation] Thank you.
17 Mr. Withopf.
18 MR. WITHOPF: First I wish to mention that this document was not
19 on the most recent list of documents Defence indicated to discuss today.
20 Otherwise, this is a document that stems from the Croatian State Archive
21 in Zagreb, again an official document. It deals with the layout of the
22 Muslim forces artillery. And although the document is dated the 28th of
23 May, 1997, it's making reference, what's visible from page 2 of the
24 document, to the situation on the 16th of April, 1993. Therefore, it's
25 obviously a relevant document.
1 The witness ZI -- as Your Honours certainly do recall, the
2 examination of the witness ZI was limited to his Rule 82 bis statement,
3 and the statement was limited to issues of destruction and looting in the
4 area of Maljine, Guca Gora, Grahovcici, and all the other villages
5 mentioned in the indictment. Therefore, there was no possibility for the
6 Prosecution, no opportunity for the Prosecution to introduce this
7 document and to present this document to Witness ZI.
8 It still has sufficient probative value in the view of the
9 Prosecution that it can be admitted.
10 JUDGE ANTONETTI: [Interpretation] Very well.
11 Mr. Bourgon, would you like to conclude?
12 MR. BOURGON: [Interpretation] Thank you, Mr. President. Those
13 are the five documents I wanted to discuss before the Trial Chamber
15 I only have two comments I would like to make about certain
16 documents, first of all about the videos. We wouldn't like to draw your
17 attention to each of the videos, but we have a list of all the videos
18 that the Prosecution has tendered -- has included on its list, and we
19 don't think that these videos should be admitted into evidence as the
20 Prosecution suggests.
21 When General Reinhardt was testifying here, we noted the lack of
22 reliability of such documents. And, Mr. President, we don't think that
23 the Trial Chamber should admit these documents into evidence in the
24 situation they are in, in the state they are in.
25 As far as the telephone conversations are concerned, as the Trial
1 Chamber has noted, on two occasions in the course of a cross-examination
2 we have used an intercept of a conversation between
3 General Hadzihasanovic and General Halilovic, a conversation that took
4 place in the headquarters of the army in Sarajevo. On two occasions we
5 mentioned that this is a telephone intercept, and we're not sure whether
6 this conversation really took place.
7 There are a number of types of such conversations, of such
8 intercepts. We don't know the purposes for which these intercepts were
9 made. We know that these around aren't recordings, but a person took
10 down notes, recorded it in written form. It's not an audio recording of
11 the conversation.
12 Could the Trial Chamber carefully examine the contents of these
13 telephone conversations, because we believe given the state they have
14 been recorded in, these conversations don't have sufficient probative
15 value to be admitted.
16 And finally, Mr. President, when we discussed the admissibility
17 of documents, we cast doubt on the contents of the document and we said
18 that certain documents shouldn't be admitted into evidence if this wasn't
19 done through a witness, even if these documents could be used to the
20 Defence's benefit.
21 JUDGE ANTONETTI: [Interpretation] Thank you, Mr. Bourgon.
22 Unless -- is there something that Mr. Withopf would like to say
23 about the videos and the telephone conversations?
24 MR. WITHOPF: Very briefly, Mr. President, Your Honours.
25 The videos should not be dealt with in the generalised manner my
1 learned friend from the Defence just did. The videos have probative
2 value. The source for all the videos were disclosed -- the sources for
3 all the videos were disclosed. Both the Trial Chamber and the Defence
4 were informed about the source of such videos.
5 The contents of the videos are self-explanatory to a very high
6 extent, and I also wish to draw the attention to the Trial Chamber to the
7 fact that Reinhardt -- General Reinhardt, the military expert, made only
8 comments in respect to one particular video.
9 The Prosecution is still of the view that the videos have
10 probative value and therefore should be admitted, even without having a
11 witness commenting on the contents of the videos.
12 The intercepted phone conversations. Again, the Prosecution has
13 provided detail as to how these phone conversations, copies of the
14 intercepted phone conversations were received. My learned friend from
15 the Defence has pointed out that Defence themselves have repeatedly used
16 these telephone conversations; and even today, the today's witness was
17 made to make comments on particular portions of such telephone
19 Therefore, the position of the Defence is a bit contradictory.
20 Otherwise, the Prosecution, we think that although these copies -- or
21 although the contents of these document are handwritten, obviously they
22 still have sufficient probative value in order to be admitted.
23 JUDGE ANTONETTI: [Interpretation] Thank you.
24 Mr. Dixon, I will give you the floor now.
25 MR. DIXON: Thank you, Your Honours.
1 I'm going to address the categories that I've handed to Your
2 Honours and to my learned friends from the Prosecution. Before I do
3 that, Your Honours, there's one general point which we wish to make, and
4 that is in response to the submission that was made by my learned friend
5 from the Prosecution that these are official documents and that they
6 therefore have a reliability which allows them to be admitted. He
7 mentioned that as one of the factors for yourself to take into account.
8 Your Honour, we would accept that within national jurisdictions
9 documents that come from official bodies and governmental authorities
10 usually do carry with them a presumption of their reliability, and in
11 most domestic courts they will not, therefore, need to be authenticated.
12 However, we are here in an international court where documents
13 from various domestic jurisdictions often end up before Your Honours, and
14 in our view the way in which those documents are to be admitted cannot be
15 equated with how it occurs in a domestic system.
16 Your Honours, in our submission, we cannot accept documents
17 purely on the basis that they appear on their face to be official
18 documents, and it's for that reason that we have requested - and I think
19 my learned friend has conceded this - that we require at least somebody
20 from the government archive or from the different archives that are
21 involved to come before Your Honours to testify as to the manner in which
22 these various official documents were collected, and indeed, then became
23 official documents.
24 We have already indicated that in respect of the 7th Brigade
25 archive there are questions which we wish to raise about how that archive
1 came to exist; who had access to that archive; and whether documents that
2 ended up in that archive were indeed documents of the 7th Brigade,
3 whether they were ever sent from the 7th Brigade or received by the 7th
5 The same applies to the Sarajevo archive as well. And we believe
6 such a witness or witnesses would assist Your Honours in deciding on the
7 official status of these documents. In our view, it is not sufficient
8 simply to assert that they are official in order to have them admitted as
10 Your Honour, turning to the categories. If I may begin by
11 looking at all the documents that concern signatures, those being ones in
12 Category B, C, and H. There are four documents altogether, and I would
13 ask that the originals of all of them be made available at once. That's
14 document number 8, 37, 56, and 103. They can be looked at together
15 because they all concern the same topic of signatures, and it might save
16 us some time as well.
17 MR. WITHOPF: Mr. President, Your Honours, I'm going --
18 JUDGE ANTONETTI: [Interpretation] Mr. Withopf.
19 MR. WITHOPF: I'm going to hand over these four documents in a
20 few seconds.
21 If I please may be permitted to make a few remarks to what has
22 just been said by my learned friend from the Kubura Defence.
23 The Prosecution has a number of times informed the Trial Chamber
24 and the Defence that we have the intention and will interview the
25 archivist or archivists of a number of archives. And this is certainly
1 an issue I would like to address later on today once we've finished the
2 discussion on the specific documents, since the Prosecution is seeking
3 some guidance from the Trial Chamber in that respect.
4 Otherwise, the issue of official documents has been repeatedly
5 addressed. Defence themselves have repeatedly in tendering documents
6 into evidence referred to the fact that these are official documents and
7 such documents were received by the Defence from the very same archives
8 as they were received by the Prosecution, and the Trial Chamber has
9 repeatedly accepted the fact that a document on its face appears to be an
10 official document makes it admissible.
11 In respect to the 7th Muslim Brigade archive - that's the now-7th
12 Mechanised Brigade archive in Zenica - I wish to draw the attention of
13 the Trial Chamber to the fact that only very few of such documents are
14 included in the Prosecution's exhibit list.
15 I'm now going to provide the originals of the four documents that
16 were just mentioned.
17 JUDGE ANTONETTI: [Interpretation] The Prosecution wants documents
18 8, 56, 157 -- 57 [as interpreted] and 103 --
19 THE INTERPRETER: 37, interpreter's correction.
20 JUDGE ANTONETTI: [Interpretation] Madam Usher, could you fetch
21 the original, please.
22 Document 8 is dated the 12th of April, 1993. It is from the
23 7th Brigade, and it is addressed to Mr. Kordic.
24 Document number 37 is dated the 23rd of July, 1993. It's an
25 order assigning four individuals.
1 Document number 56 is the code of conduct for the 7th Brigade.
2 It is dated the 1st of November, 1994.
3 And document number 103 is a list of soldiers who were members of
4 the 7th Brigade. It's a list of soldiers but of officers as well.
5 [Defence counsel confer]
6 [Trial Chamber confers]
7 MR. DIXON: [Microphone not activated]
8 JUDGE ANTONETTI: [Interpretation] Microphone, please.
9 MR. DIXON: If I may begin with contested Exhibit Number 8, Your
11 As Your Honour has indicated, this is a letter purportedly sent
12 by the commander of the 7th Brigade to Mr. Kordic on the 2nd of April,
14 Our dispute with this document is in relation to the signature,
15 Your Honour. This is not the signature of Mr. Kubura. In future
16 documents that I show Your Honours, his signature will become evident,
17 and it's quite clearly a different signature to the one on this document.
18 In addition to that, we have no name of the person who signed it.
19 We simply have what seems to be a signature and then the word "commander
20 of the 7th Brigade."
21 In the other documents in this category, Category B, there is at
22 least a name mentioned when one sees the signature and "commander of 7th
23 Brigade." However, in this document there isn't even an author of the
24 document identified.
25 Your Honour, in our submission, this document should not be
1 admitted unless a witness can attend to verify who signed this document
2 and to permit us to ask that person questions about whether or not they
3 were authorised to sign such a document, if indeed this document was an
4 official one of the 7th Brigade.
5 In our view, Your Honour, the probative value of this document is
6 minimal unless such a witness is called. In our submission, Your Honours
7 would not be able to rely on this document in any meaningful way unless
8 it could be confirmed as a document which did indeed come from the
9 7th Brigade.
10 We have gone through these submissions before, but to summarise
11 again, Your Honours, this is essentially a piece of hearsay evidence.
12 Your Honours will being asked to look at a document where the author of
13 the document is not before Your Honours to give their evidence firsthand.
14 So it is a piece of documentary hearsay. Of course hearsay evidence is
15 admissible before the ICTY, but as Your Honours have indicated on
16 numerous occasions, the source of that hearsay should be known to Your
17 Honours and to the parties if it is to be admitted. That is important,
18 Your Honours, in order to establish the reliability of the hearsay
19 evidence and in order to be able to determine what weight to give it
20 thereafter in Your Honours' assessments.
21 In our view, unless the source of the document is at least
22 identified and known to Your Honours, such hearsay evidence - albeit in a
23 documentary form - should not be admitted. Here the source of the
24 document isn't known; the author isn't known. And in our submission, it
25 should therefore be excluded, unless that source does become known
1 through a witness to Your Honours.
2 JUDGE ANTONETTI: [Interpretation] Madam Usher, could you fetch
3 the document. I'd like to look at something. I'd like to check
4 something. And then I will let Mr. Withopf take the floor.
5 Mr. Dixon didn't mention the fact that at the bottom and to the
6 left there is a stamp. It's in B/C/S. It mentions "sent." They have
7 the date, the 2nd of April, 1993, at 16.10 hours, 1610 hours. Then it
8 mentions how it was sent, either by telex or by telegram, by telephone,
9 by radio communications, or by wire. And something has been encircled.
10 And this probably indicates how the document was sent or forwarded.
11 Mr. Withopf.
12 MR. WITHOPF: Mr. President, Your Honours, you already addressed
13 a number of facts I would like to address a bit more.
14 But first to the authenticity of this document. This is an
15 official document of the 7th Muslim Mountain Brigade seized as a result
16 of the consensual search in the ABiH main archive in Sarajevo. The
17 document is obviously signed.
18 The document is highly relevant. It's a letter of the 7th Muslim
19 Mountain Brigade commander of the 2nd of April, 1993 at a point in time
20 the accused Kubura was already acting commander to the HVO commander
21 Dario Kordic. And the letter speaks about "foreign nationals, volunteers
22 in our ranks." This was a quote.
23 The issue about the signature. It has a signature. The
24 document, it may or may not be the accused Kubura's signature. It on its
25 face is a very official document, as Your Honour Mr. Presiding Judge
1 already pointed out; it has two official stamps on it, namely the stamp
2 of the 7th Muslim Brigade and another official stamp of the 3rd Corps.
3 The author of the document is known; it's the commander of the
4 7th Muslim Mountain Brigade. The source is known; it's the commander,
5 and we informed the Trial Chamber where the document was found. And the
6 fact that the Prosecution wishes to use or wishes to prove with this
7 document does not depend on the fact or on the issue as to whether a name
8 is attached to the word "Commander 7th Muslim Mountain Brigade."
9 Therefore, the Prosecution is of the view this document is of probative
10 value and should be admitted.
11 JUDGE ANTONETTI: [Interpretation] Let's go on to document
12 number 37. And could both parties please proceed expeditiously, because
13 I see that time is passing.
14 MR. DIXON: Yes, Your Honour. I will move on to document 37 now.
15 My only response in respect of contested document number 8 is
16 that we're not disputing that this document was sent somewhere. That's
17 evident on the bottom of the document. It's just who sent the document
18 and whether that was indeed somebody within the 7th Brigade, so that this
19 document can in any way be relied upon by Your Honours. In our
20 submission, this is not the signature of Mr. Kubura and therefore should
21 not be admitted into evidence which can potentially be evidence that is
22 used against him at some point.
23 Your Honours, contested document 37 and 56, these are two
24 documents which refer to signatures other than those of Mr. Kubura. The
25 first one being contested exhibit 37, is a document purportedly signed by
1 Mr. Koricic in his capacity, here, it says, as the brigade commander, and
2 that is of the 7th Brigade on the 23rd of July, 1993. In our submission
3 - and the point is the same as the one that I made earlier - this
4 document can be of no use to Your Honours unless the person who authored
5 the document or somebody can authenticate that this document was indeed
6 one which proposed the appointment of these persons.
7 We would also ask Your Honours to take note that the Prosecution
8 has never alleged that Mr. Koricic was the brigade commander, and yet
9 here they're seeking to rely upon a document purportedly signed by him in
10 that capacity. And in our submission that, blatant contradiction must
11 mean that the document is unreliable and should not be admitted into
12 evidence, unless the witness is called.
13 Your Honours, I can deal with contested exhibit 56 at the same
14 time, and then my friend can respond to both. That will save time.
15 56 is the code of conduct of the 7th Brigade signed by a soldier.
16 Once again, the person is identified but this person is not being called
17 as a witness to verify that this is indeed the code of conduct of the
18 7th Brigade. And most importantly, it's a document signed on the 1st of
19 November, 1994, which is long after the time when Mr. Kubura was the
20 commander of the 7th Brigade.
21 So once again, of what possible assistance could it be to Your
22 Honours in trying to resolve questions relating to the time period when
23 Mr. Kubura was the commander? This may not be the code of conduct of the
24 7th Brigade at all at the relevant time.
25 In addition, there's one further point in relation to this
1 document. Having seen the original now, Your Honours, I note that on the
2 back of the document there is a typed and written script which was not
3 included in the documents that we received and not translated. So I have
4 no idea what is on the back of this document. It's the first time I've
5 seen this now. That matter could of course be resolved through the
6 Prosecution translating the document for us.
7 JUDGE ANTONETTI: [Interpretation] Mr. Withopf, could you briefly
8 comment on documents number 37 and 56. Could you do so in a few seconds.
9 MR. WITHOPF: Your Honours, Mr. President, both documents were
10 received as a result of the consensual search, obviously. 37 is
11 relevant. It's the proposal for the appointment of the accused Kubura as
12 the brigade commander, and it also includes Serif Patkovic, known from
13 the testimony from a number of witnesses in these proceedings. And it's
14 making reference to his appointment of Chief of Staff; obviously
16 The technical issue: It appears to be very normal that a
17 different person than the one who was proposed to be appointed as
18 commander signs such a document. The main issue, however, is it's again
19 an official document of the 7th Muslim Mountain Brigade; therefore, the
20 Prosecution is of the view that this document has probative value, even
21 without the author of the document testifying about the document.
22 Moving on to document 56. It's relevant. Also, it's a 1994
23 document. It makes reference to the "Instructions to the Muslim
24 Fighter," a booklet which is marked for identification as a Prosecution
25 exhibit, published in 1993, obviously during the time period of the
1 indictment. And reference is made extensively in paragraph 70 of the
2 indictment. And the code of conduct which is addressed in document 56 is
3 explicitly making reference to the instructions to the Muslim fighter.
4 Of course, it's a receipt that a soldier signed, an ABiH 3rd
5 Corps 7th Muslim Mountain Brigade soldier in 1994. That's certainly
6 correct. However, as we have mentioned repeatedly, this is a case in
7 which bits and pieces of evidence will be put together and this is just
8 another piece of evidence. And the Prosecution is of the view that in
9 combination with other documents, it has probative value and should be
11 Thank you.
12 JUDGE ANTONETTI: [Interpretation] Let us move on now, please, to
14 MR. DIXON: Yes. Your Honour, to take this swiftly, our basic
15 point is that this document does not have any stamp. It is not signed.
16 It is an example of a documents that unsigned. It is simply a collection
17 of four pages of names without a date, and in our submission we cannot
18 possibly see the reliability and relevance of this document to Your
19 Honours in deciding any of the issues in the case. And for that reason,
20 it should not be admitted, unless a witness can come and explain what
21 this document is all about.
22 JUDGE ANTONETTI: [Interpretation] Very well.
23 Mr. Withopf.
24 MR. WITHOPF: Very briefly: It's correct, the document doesn't
25 have a signature. However, it's an official document; again, stemming
1 from Sarajevo collection 1, and it has been searched and seized from the
2 archives of the 7th Mechanised Brigade in Zenica, obviously the successor
3 brigade of the 7th Muslim Mountain Brigade.
4 As mentioned, it's correct there is no signature. As one can see
5 from the original, this is obviously a computer print. It's not an
6 order. It's not a report. It's a document which by its nature is
7 typically not signed. Therefore, the Prosecution is still of the view
8 that this document has probative value and should be admitted into
10 JUDGE ANTONETTI: [Interpretation] Thank you. Please continue for
11 the other categories.
12 MR. DIXON: [Previous translation continues] ... The documents
13 concerning signature s can now be handed to Your Honours, if you wish to
14 view them, and returned.
15 There's only one other document, Your Honour, that I would need
16 to look at the original. The others I can do now without referring to
17 the original.
18 JUDGE ANTONETTI: [Interpretation] Could you give us the numbers
19 of those documents, please.
20 MR. DIXON: That's document 65 is the only other document that I
21 will ask Your Honours' permission to look at the original of. I'll refer
22 to some other documents, but I will do that without needing to have the
23 original before Your Honours.
24 JUDGE ANTONETTI: [Interpretation] Very well. 65 is dated the 8th
25 of April, 1993.
1 MR. DIXON: Yes, Your Honour.
2 JUDGE ANTONETTI: [Interpretation] It is a report about the
3 unacceptable conduct of some members of the 7th Brigade, signed by
4 Mr. Koricic.
5 MR. DIXON: Yes, Your Honour. If the original could be obtained,
6 and then I will address Your Honours briefly on this document which we've
7 put in the category of "confusing documents." And I think Your Honour
8 will hopefully appreciate why we have indicated that it is a document
9 that we cannot make any sense of.
10 [Defence counsel confer]
11 JUDGE ANTONETTI: [Interpretation] In the English translation, it
12 says "for the commander," and in the B/C/S document there's a small word
13 just in front of the word "komandant."
14 MR. DIXON: Yes, Your Honour. The original is here. I will pass
15 that up to Your Honours.
16 Your Honours, our essential submission on this document is that
17 if the English translation is looked at, as Your Honours indicated, this
18 is a report about alleged unacceptable conduct of the 7th Brigade. It's
19 not coming from the 7th Brigade but a report from the commander of a
20 particular military unit, which is indicated at the top of the document.
21 When Your Honours turn over to the second page, however, we see a
22 separate document which is signed by Mr. Koricic, an order of 6 April
23 1993. In our submission, there's no clear connection between these two
24 pages. They appear to be two unrelated pages, as opposed to one
1 The second page has got a number of 04414-1 at the top. That's
2 the document of 6 April 1993. And it's a number referring to a previous
3 report; on the basis of a previous report this order is then issued by
4 Mr. Koricic.
5 However, Your Honours, when the first page of the document is
6 looked at - the number on that is "48293," and it's 8 April 1993, so a
7 date after this order is allegedly sent out by Mr. Koricic - so on its
8 face there appears to be in connection between the two pages, and indeed
9 the first page is unsigned. There's no signature on it. And in our
10 view, given that it is impossible to make sense of how these two
11 documents fit together, failing a witness explaining it, they should not
12 be admitted into evidence.
13 JUDGE ANTONETTI: [Interpretation] Yes. The problem is a very
14 simple one. There are two documents which are copies of an original
15 document which was typed. When the documents were seized, people didn't
16 realise that these related to two different events. There's an order
17 dated the 6th of April, and then there's a report dated the 8th of April.
18 And when the two documents were seized, they must have been one next to
19 another and perhaps the investigator didn't pay attention to these
21 What are you telling us, Mr. Withopf?
22 MR. WITHOPF: Mr. President, it's certainly correct, both the
23 observations of you, The Presiding Judge, and my learned friend from the
24 Kubura Defence. These two documents on their face appear to be
1 The original may indicate that it is one and the same document;
2 however, nobody obviously can be sure about. And as my learned friend
3 from the Defence pointed out, reference is made to a report, 6th of
4 April, and the report is dated 8th of April, 1993.
5 However, what appears to be important in discussing the
6 admissibility of this document is the fact that both the report and the
7 order deal with the very same issue, namely the radical behaviour of some
8 members of the 7th Muslim Brigade in the 8 April report, and the order
9 which prohibits any kind of extremist behaviour. So the documents are
10 certainly linked to each other, and the Prosecution suggests that both
11 documents separately and together have probative value and therefore
12 should be admitted.
13 JUDGE ANTONETTI: [Interpretation] Very well. Let's continue.
14 Let's move on.
15 I shall return the document to the Prosecution.
16 MR. DIXON: [Previous translation continues] ... Mr. Kubura's
17 signature is on that document. Your Honours may wish to consult that in
18 order to compare it to the documents in Category B, which are not signed
19 by Mr. Kubura.
20 JUDGE ANTONETTI: [Interpretation] It's Koricic, isn't it, not
21 Mr. Kubura?
22 MR. DIXON: Yes, for and on behalf of Mr. Kubura, Koricic is
24 JUDGE ANTONETTI: [Interpretation] So you're telling us that it
25 was Mr. Kubura who signed on behalf of Mr. Koricic.
1 MR. DIXON: Indeed, your, and that is Mr. Kubura's signature
2 there. There's no dispute with that.
3 JUDGE ANTONETTI: [Interpretation] So you are recognising the
4 reality of the second document.
5 Mr. Withopf, the Defence tells us that on the second document we
6 have the signature of Mr. Kubura in the original, which is no longer
7 contested, then.
8 MR. DIXON: Your Honour, there's no dispute that our contestation
9 of these documents or document was with the fact that the two were put
10 together and there's no connection on their face. And hence, it was a
11 confusing document, which we said should not be admitted in the form that
12 the Prosecution had put forward. Simple as that, Your Honour.
13 MR. WITHOPF: Mr. President, I have no observation to make on
14 this statement, which appears to be quite an interesting one.
15 JUDGE ANTONETTI: [Interpretation] Please continue, Mr. Dixon.
16 MR. DIXON: Thank you, Your Honours.
17 We have no further originals to show Your Honours. But going
18 through the rest of the categories, starting with Category A, which are
19 documents outside the time frame of the charges, there are two documents
20 we wish to refer Your Honours to, and those are contested exhibit 4 and
21 contested exhibit 6. Both of these relate, as Your Honours will see, to
22 the music school.
23 The first is a document dated 15 January 1993 regarding the
24 establishment of a detention centre for Bosnian soldiers at the music
25 school, and the second concerns investigations into crimes against
1 certain Bosnian soldiers who are held at the music school.
2 In our view, there is no possible relevance of these documents to
3 the crimes that the Prosecution alleges occurred after 1 April 1993 at
4 the music school, and these documents should not be admitted in a period
5 before Mr. Kubura became the commander unless the Prosecution can show
6 what is the connection between these documents and crimes that were
7 allegedly committed by subordinates of Mr. Kubura while he was the
9 Your Honour, I've gone through this argument before, and I don't
10 wish to tramp over ground that we've covered already. They are simply
11 examples of how there are a number of documents listed in Category A
12 which we say have no bearing on their face to the charges, and they
13 should not be admitted unless the Prosecution can discharge its burden of
14 showing why these documents are linked to their case.
15 JUDGE ANTONETTI: [Interpretation] The problem is simple: This is
16 a problem of relevance with respect to the time frame of the indictment.
17 The Defence tells us that these documents have dates which do not fit
18 within the time frame of the indictment.
19 What is your response?
20 MR. WITHOPF: Mr. President, Your Honours, I don't know whether
21 Your Honours wish to have the original of the document in front of them
22 prior to discussing the document. Due to the nature of the challenge, I
23 wouldn't deem it to be necessary, but I'm happy to provide you with the
25 JUDGE ANTONETTI: [Interpretation] It is not necessary.
1 MR. WITHOPF: Thank you very much, Mr. President.
2 Both documents, in the view of the Prosecution, are relevant.
3 The one document dated the 15th of January, 1993, in paragraph 8, it
4 says: "In the music school --" and it's making reference to the Zenica
5 Music School -- "established a military detention unit."
6 It's the view of the Prosecution that the fact that the 7th
7 Muslim Mountain Brigade themselves order the establishment of a detention
8 unit in the Zenica Music School is highly relevant. It proves that
9 following the 15th of January, 1993 there was an ABiH 3rd Corps
10 7th Muslim Mountain Brigade detention facility in the Zenica Music
11 School, at least together with additional evidence which shows that at a
12 later point in time when the accused Kubura was in charge of the 7th
13 Muslim Mountain Brigade. In combination with such additional evidence it
14 certainly has probative value and should be admitted.
15 Document 6, very briefly. The document shows that the 7th Muslim
16 Mountain Brigade had the capability to investigate crimes if they were
17 willing to do so. The fact that they were able to do so on 3 March 1993
18 already and only about four weeks prior to the accused Kubura being
19 appointed as acting commander is obviously significant, and it appears in
20 addition to being significant that the document was copied to the
21 7th Muslim Mountain Brigade Chief of Staff, who at the time was the
22 accused Kubura.
23 In the original, this line is actually underlined.
24 Therefore, the Prosecution is of the view that this document has
25 probative value, if not even high probative value, and therefore it
1 should be admitted into evidence.
2 JUDGE ANTONETTI: [Interpretation] Very well. Let's continue.
3 MR. DIXON: Thank you, Your Honours.
4 One point in response. None of the points that my learned friend
5 has made are disputed by the Defence team for Mr. Kubura. And as I
6 indicated earlier on to Your Honours, evidence should only be admitted if
7 it goes to points in dispute in the case. There's no need to admit
8 evidence that goes to matters where there's no issue that Your Honours
9 have to decide as the Trial Chamber.
10 Your Honours, the next category is "handwritten documents." The
11 numbers referred to there are all ones that relate to the war diary, the
12 3rd Corps war diary. And there are a few other documents as well.
13 There's no need for me, Your Honours, to show Your Honours any copies of
14 that diary, save to say that it is a form of hearsay evidence to admit
15 the diary without knowing the source of the person who wrote the diary
16 and giving the Defence an opportunity to cross-examine that person as to
17 whether or not they recorded events properly and correctly as they
18 occurred in the meetings.
19 So we would request a witness for the 3rd Corps diary.
20 Your Honour, in Category C, before I move on to the final few
21 categories, I do wish to mention that although Your Honours might think
22 there are a lot of numbers there, a lot of witnesses would need to be
23 called, indeed the numbers overlap to some extent with the same author of
24 the documents appearing on a number of occasions. So there is, for
25 example, one person who authored ten of these documents; another who
1 authored seven; another who authored nine. And although many numbers
2 appear there, it might mean that only four or five witnesses are required
3 to cover all of those documents.
4 Category E, Your Honour, which is El-Liva magazine.
5 MR. WITHOPF: Mr. President.
6 JUDGE ANTONETTI: [Interpretation] Yes. Regarding Category C
7 first, please.
8 MR. WITHOPF: If I may just briefly respond. I understand that
9 we are going document by document.
10 The war diaries -- the two war diaries have repeatedly been
11 address. I really do not want to repeat everything that has been said.
12 Both were seized as a result of the October 2000 searches. They stem
13 from the ABiH main archive in Sarajevo, Sarajevo collection 1.
14 Document 28 - that's the document actually my learned friend is
15 referring to - these are respective portions of the 23rd of June, 1993.
16 These appear to be minutes of a meeting held on exactly that day with
17 both the accused Hadzihasanovic and the accused Kubura being present.
18 The accused Kubura is quoted with a proposal "hiring foreign nationals,
19 and we will continue to hire them because they receive ammunition."
20 Obviously, quite highly relevant.
21 The technical issue which has been in particularly addressed by
22 my learned friend, handwritten document. I already made my comments in
23 that respect repeatedly. It's the very nature of such a war diary that
24 it is in handwriting, and in this case the Prosecution is of the view
25 that there's no witness needed because of that fact. Certainly the
1 document has probative value by the very nature of this document and it
2 should be admitted into evidence.
3 JUDGE ANTONETTI: [Interpretation] The next category, please.
4 MR. DIXON: [Previous translation continues] ... The magazine.
5 In our submission, we do not challenge the existence of this magazine.
6 It's simply the contents of what is written in the magazine and require a
7 witness to be cross-examined about what they have stated in order to test
8 the reliability of that information and its credibility. And it's for
9 that reason that we would require a witness for any evidence that is to
10 be used from that magazine. Otherwise, we are really accepting the
11 stories of journalists, which in our submission could be of very little
12 assistance to Your Honours in deciding the real issues in this case.
13 JUDGE ANTONETTI: [Interpretation] Regarding the magazines, those
14 that appear to come directly from the 3rd Corps or the 7th Brigade.
15 MR. WITHOPF: Mr. President, as mentioned earlier on, the El-Liva
16 magazine is an open-source document and it is the official magazine of
17 the 7th Muslim Mountain Brigade. And if I may please draw the attention
18 of Your Honours and the Defence to page 2 of the El-Liva magazine, which
19 is document 54, it says, obviously in the B/C/S language "Izdavac
20 7 Muslimanska Brigada," and I did a quick inquiry what this actually
21 means, and it says "Publisher, 7th Muslim Brigade."
22 The Prosecution is certainly very willing to provide an official
23 translation of this particular portion of the El-Liva magazine, which
24 appears to appear in all of the El-Liva magazines the Prosecution is
25 suggesting to tender into evidence.
1 El-Liva was the official magazine of the 7th Muslim Brigade. To
2 our knowledge, the first edition was published in February 1993 and it
3 was still published at the end of 1995 and possibly later. Again, since
4 the El-Liva magazine is an official 7th Muslim Mountain Brigade magazine,
5 it is of high probative value and certainly of such a probative value
6 that it should be admitted into evidence.
7 JUDGE ANTONETTI: [Interpretation] Are there any more categories,
8 Mr. Dixon?
9 MR. DIXON: Your Honour, the only other category that I do wish
10 to refer to is G, "Videos." I have already referred Your Honours to
11 number 409, being a video supposedly of the formation of the 7th Brigade
12 in August of 1992, when the Prosecution in its own indictment alleges
13 that that took place in November 1992. And video 87 was the video,
14 portions of which were shown to General Reinhardt.
15 In our submission, the cross-examination of him, albeit only on a
16 part, did show that what is seen on those videos, the images that are
17 captured are not necessarily verified, either in the transcript or in any
18 other source provided by the Prosecution. They've indicated where they
19 got the video but not what we see in the video.
20 And I agree with my learned friend that you cannot lump all of
21 the videos together, but in our submission it would be necessary to go
22 through them all to determine whether anything that is shown on them can
23 be of any value to Your Honours before they are admitted into evidence.
24 Those are the only two examples that I do wish to refer to.
25 After my learned friend has replied, there are one or two general
1 comments that I wish to make, and then I'll be completed in five minutes,
2 Your Honour.
3 MR. WITHOPF: Mr. President.
4 JUDGE ANTONETTI: [Interpretation] The videos, please.
5 MR. WITHOPF: Mr. President, I can keep my answer very short,
6 since I already made the Prosecution's observations on the videos, and I
7 do not wish to again repeat them.
8 I'm making reference to what I said earlier on today. I wish,
9 however, to point out that transcripts of the audio of the video have
10 been provided to both the Trial Chamber and the Defence.
11 JUDGE ANTONETTI: [Interpretation] Thank you.
12 I'm told that we have to have the break in five minutes. I would
13 have preferred as to finish in continuity, but ...
14 MR. DIXON: Your Honour, I will complete my submissions.
15 There are no further categories that I wish to refer Your Honours
16 to. The document numbers are there, so Your Honours are able to see
17 which are the different documents that we do contest.
18 In our submission, Your Honours, much of what has happened
19 throughout this debate centres on whether or not a degree of probative
20 value should be shown before a document is admitted, value both in the
21 sense of its reliability and its relevance.
22 There are two possible options or views that can be taken:
23 Either that the threshold is very low or non-existent. And in fact, Your
24 Honours as professional Judges can determine the relevance of evidence in
25 light of all the evidence and weigh its weight accordingly.
1 But another view, and the one which we have sought to put forward
2 to Your Honours, is that before evidence is admitted, a threshold must be
3 met so that only evidence that can be shown to be linked to a relevant
4 issue in the case, an issue in dispute, should be admitted. And there
5 should also be a threshold of reliability.
6 That does not mean, Your Honours, that documents that are not
7 admitted at this stage can't be admitted at a later stage. As I've
8 indicated before, these documents are always marked for identification,
9 and it's entirely possible that they can be admitted at a later point
10 when their reliability or relevance does become known, either through a
11 witness or because of other evidence presented.
12 We have asked for a number of witnesses to attend in these
13 categories, and that remains our submission.
14 I would, however, add that if Your Honours are against us on
15 these points, that you do take our submissions into account when
16 considering the weight to be given to these documents at a later point.
17 The challenges we make as to admissibility equally apply to the weight to
18 be given to these documents.
19 Thank you, Your Honours, for the opportunity to go through these
21 JUDGE ANTONETTI: [Interpretation] Yes.
22 Finally, Mr. Withopf.
23 MR. WITHOPF: Mr. President, the Prosecution has made all its
24 comments and all its observations on the more general issues, and the
25 Prosecution has repeatedly expressed its view that the approach as was
1 taken by the Kvocka Trial Chamber should be applied in this case as well.
2 I'm making reference to all the submissions I made in respect to the more
3 general questions as addressed by my learned friend from the Kubura
5 JUDGE ANTONETTI: [Interpretation] Mr. Bourgon, you would like to
6 say something? But very briefly.
7 MR. BOURGON: [Interpretation] I will.
8 First of all, the Chamber during the debate on the documents has
9 noted that there's a system of numbering, especially the orders in the
10 headquarters. We still have no information regarding this system of
11 numbering, though we could have at least heard the opinion of an expert
12 to tell us how this could function in a military headquarters.
13 The question of authorisation of documents, production of
14 documents, signature, and dispatch, probably this functions similarly in
15 all military headquarters, but we have no information on that subject.
16 Another very important remark, Mr. President, has to do with the
17 quantity of documents that have been produced and for which the
18 Prosecution is asking that they be admitted today. I haven't verified in
19 all the other cases, but it has never been seen to such an extent that
20 the Prosecution is asking for such a large number of documents to be
21 admitted. I have come across some 40 or 50 documents.
22 The Defence would like to thank the Chamber for allowing it to
23 present its arguments regarding these documents, but it has to note that
24 the Prosecution, which wishes to make up for shortcomings in its case, is
25 endeavouring to throw 600 documents into the file to make up for this.
1 One wonders how the Chamber will be able to use all those
2 documents without having the benefit of the support of a testimony.
3 Finally, Mr. President, we feel that the test that should be used
4 to determine the minimum threshold of probative value is to see whether
5 the Chamber can make any conclusion on the basis of a document without
6 having to speculate on any part of that document.
7 Thank you, Mr. President, and thank you for allowing us to
8 present our arguments.
9 JUDGE ANTONETTI: [Interpretation] Thank you.
10 Mr. Withopf wishes to intervene in response of what has just been
11 said. Perhaps to tell us about next week.
12 MR. WITHOPF: I will certainly at a later point in time give you
13 information in respect to the witnesses of next week.
14 However, if I may respectfully ask the Trial Chamber to have a
15 short break, since the Prosecution wants to address after a short break
16 the issue I mentioned earlier on. We are inclined to interview the
17 archivists of the various archives; however, we wish to have some sort of
18 guidance from the Trial Chamber, and in particular against the background
19 that the Prosecution intends to close its case not later than during
20 second week of June at the latest.
21 Thank you.
22 JUDGE ANTONETTI: [Interpretation] The Chamber had planned to
23 render its decision as soon as possible, as early as Monday, and then the
24 question of archivists would be resolved as of Monday. So it's not very
25 useful at this stage for us to address this question of archivists,
1 because as you know, the Chamber has been thinking things over and
2 discussing the matter amongst ourselves.
3 If we have a break, the technical break lasts half an hour, and
4 we have to close in three-quarters of an hour. So let us hear what you
5 have to say about next week.
6 MR. WITHOPF: Mr. President, in acknowledging what you just said,
7 the Prosecution certainly doesn't need a break, and we may revisit this
8 issue at a later point in time.
9 Mr. President, Your Honours, in respect to the witnesses, can we
10 please go into private session?
11 JUDGE ANTONETTI: [Interpretation] Yes. Let us go into private
13 [Private session]
19 --- Whereupon the hearing adjourned at 1.06 p.m.,
20 to be reconvened on Monday, the 17th day of
21 May, 2004, at 2.15 p.m.