1 Friday, 28 May 2004

2 [Open session]

3 --- Upon commencing at 9.20 a.m.

4 [The accused entered court]

5 JUDGE ANTONETTI: [Interpretation] Mr. Registrar, will you be kind

6 enough to call the case.

7 THE REGISTRAR: Good morning. Case Number IT-01-47-T, The

8 Prosecutor versus Enver Hadzihasanovic and Amir Kubura.

9 JUDGE ANTONETTI: [Interpretation] Thank you. Can we have the

10 appearances for the Prosecution, please.

11 MR. MUNDIS: Good morning, Your Honours. Good morning, counsel.

12 Good morning, everyone in and around the courtroom. For the Prosecution,

13 Mr. Matthias Neuner, Daryl Mundis, and our case manager, Andres Vatter.

14 Thank you.

15 JUDGE ANTONETTI: [Interpretation] Can we now have the appearances

16 for the Defence, please.

17 MS. RESIDOVIC: [Interpretation] Good morning, Mr. President. Good

18 morning, Your Honours. On behalf of General Enver Hadzihasanovic, Edina

19 Residovic, counsel, Stephane Bourgon, co-counsel, and Alexis Demirdjian

20 legal assistant. Thank you.

21 JUDGE ANTONETTI: [Interpretation] And the other Defence team,

22 please.

23 MR. IBRISIMOVIC: [Interpretation] Good morning, Your Honours. On

24 behalf of Mr. Kubura, Rodney Dixon, Fahrudin Ibrisimovic, and Nermin

25 Mulalic, legal assistant.

1 JUDGE ANTONETTI: [Interpretation] Thank you. After this delay

2 which has again been caused by technical reasons, the Chamber will begin

3 the hearing by greeting all those presents, the representatives of the

4 Prosecution, the Defence attorneys, the accused, and all the staff of this

5 courtroom.

6 Before bringing in the witness, I'm going to ask the Registrar for

7 us to go into closed session because the Chamber is going to render an

8 oral decision.

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19 [Open session]

20 THE REGISTRAR: Your Honours, we are back in open session.

21 JUDGE ANTONETTI: [Interpretation] Concerning the testimony of this

22 witness, I wish to remind you that during the examination-in-chief, the

23 Prosecution used 87 minutes. Therefore, the Defence will have two hours

24 and 15 minutes at their disposal for the cross-examination. So

25 theoretically, we will have time to have the cross-examination by the

1 Defence, and for the rest of the time, if necessary, the Judges will be

2 able to ask questions. In order to avoid wasting time, I'm going to ask

3 Madam Usher to go and fetch our witness who is waiting. And I will

4 immediately give the floor to Mr. Bourgon, who is already set to go.

5 [The witness entered court]

6 JUDGE ANTONETTI: [Interpretation] Good morning. Let me first

7 check that you can hear my words in your headset properly.

8 THE WITNESS: Yes, Your Honour.

9 JUDGE ANTONETTI: [Interpretation] Thank you. Please take a seat.

10 As you know, the examination-in-chief has already taken place. We

11 interrupted your testimony in order to allow the Defence to become

12 acquainted with certain documents so as to be able to start their

13 cross-examination. As the Defence is now able to start its

14 cross-examination, without further ado, I'm going to give them the floor.

15 MR. BOURGON: [Interpretation] Thank you, Mr. President.

16 WITNESS: MARTIN GARROD [Resumed]

17 Cross-examined by Mr. Bourgon:

18 Q. Good morning, sir.

19 A. Good morning.

20 Q. Let me begin, sir, by acknowledging the fact that we have had the

21 opportunity to meet when you were first here back in April. And I would

22 like to take this opportunity to thank you for taking the time to meet

23 with the Defence team of General Hadzihasanovic.

24 I did introduce me -- I did introduce myself last time, but for

25 the purpose of the transcript, let me introduce the people I am with this

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1 morning. I'm accompanied this morning by Ms. Edina Residovic, and by

2 Mr. Alexis Demirdjian, and my name is Stephane Bourgon. And together, we

3 represent General Hadzihasanovic.

4 Once again, sir, I would like to apologise for the fact that you

5 had to come back, of course, twice. But I take it that you understand the

6 issue that those documents that we were looking for, and I also take this

7 opportunity to acknowledge the fact that your own personal intervention in

8 making us get these documents was instrumental, and I wish to thank you

9 for this.

10 Sir, before we begin, I would like to repeat what I said to you

11 when we first met back in April. And at that time, I mentioned to you

12 that in representing General Hadzihasanovic in this trial, we thought that

13 this trial focussed on the exercise of command. In this respect, we hope

14 to draw upon your expertise and your vast experience so that all of us

15 here in the courtroom better understand the military profession.

16 When you first appeared before the Trial Chamber, and that was on

17 the 6th of April, your military background and experience was highlighted

18 by the questions posed to you by the Prosecution. I don't intend to

19 repeat those questions. Nevertheless, there is one topic I would like to

20 cover with you this morning, and that is the Royal Marines. I understand

21 that after 37 years of military service, you ended up as lieutenant

22 general, a three-star general, and that you commanded the Royal Marines.

23 Is that correct?

24 A. That's correct.

25 Q. Sir, many people, whether inside this courtroom or outside this

1 courtroom, have heard about the Royal Marines, but I think very few know

2 what the Royal Marines are about. Can you explain for the Trial Chamber

3 what are the Royal Marines and what kind of challenges you met while

4 commanding the Royal Marines.

5 A. Well, putting it as briefly as possible, the Royal Marines are the

6 infantry of the naval service. We come under the naval service, not under

7 the army. And the primary role of the Royal Marines is the projection of

8 land power from sea on to land in a hostile or potentially hostile

9 environment, particularly when there is no access to beaches, ports, or

10 airfields.

11 I suppose the -- one of the best examples of this in recent years

12 was the operation to retake the Falkland Islands.

13 Q. Were you yourself, sir, involved in the operations in the Falkland

14 Islands? Were you still a serving member at the time?

15 A. To my eternal regret, I was not involved in the Falkland Islands.

16 I was in our ministry of defence. It just so happened I took over the

17 brigade a few months later, and therefore happened to be the only one in

18 the whole brigade who had not been in the Falkland Islands. That is a

19 lasting problem to me.

20 Q. Now, sir, in terms of the -- when we talk about the Royal Marines,

21 how big an organisation are we talking about?

22 A. We're talking about some 7.000.

23 Q. Would I be right in saying that the Royal Marines is somehow

24 referred to as the elite forces within the United Kingdom?

25 A. We like to consider ourselves elite forces. There are, of course,

1 others who consider themselves elite forces, but we certainly do.

2 Q. Would I be correct in saying that if there are serious commissions

3 or combat missions to be accomplished by the United Kingdom, the first

4 unit that comes to mind would be the Royal Marines?

5 A. Very often, that is so.

6 Q. Now, if we are talking about a commanding officer, and looking at

7 your background at various levels into the Royal Marines, I take it that

8 you have faced a number of daunting challenges in this respect.

9 A. Yes.

10 Q. And would you agree with me that being a commander, especially of

11 an operational force in an operational situation, is not only a calling,

12 but that it is also one of the most difficult professions one can ever

13 exercise?

14 A. Yes, I think I would agree.

15 Q. And would you agree with me that one example of this when you are

16 a commander of an operational force, one of those possible challenges to

17 illustrate would be that you may be ordering your men into battle knowing

18 that their chances of coming back alive would be slim?

19 A. Yes, but that doesn't happen regularly.

20 Q. Now, in this respect, sir, would you agree with me that for anyone

21 to be able to properly assess the work of a commanding officer in an

22 operational situation, this could only be done by taking stock of the

23 prevailing circumstances at the time and by trying to put one's self, even

24 though that would be very difficult, in the shoes of the commander at the

25 time?

1 A. Yes, I think I would agree.

2 Q. Moving on to your specific mission in Bosnia, of course you were

3 not there in your capacity as a general. I understand that in mid-June

4 1993, you first travelled to Bosnia through Zagreb.

5 A. That is so.

6 Q. And that you came to Zenica where you stayed for approximately 10

7 to 14 days during which time you received training and you had the

8 opportunity to familiarise yourself with the mission.

9 A. That is so, yes.

10 Q. And that you did have the opportunity to familiarise yourself with

11 the parties and the warring parties?

12 A. Yes.

13 Q. And would I be right in saying that during this period, you had

14 regular contact with Ambassador Thebault who is the head of the regional

15 centre in Zenica?

16 A. Yes, that is so.

17 Q. Would it be fair to say that you had a chance to discuss his views

18 of the situation?

19 A. Yes, but I should make the point that I was only one of a party of

20 about 10 or 15 monitors who had moved into Bosnia, and we were being dealt

21 with as a whole. And therefore, Jean-Pierre Thebault was not just having

22 conversations with me, he'd be addressing the whole new team who were then

23 going to different parts of Bosnia.

24 Q. Thank you. Thank you, sir. Now, even though there was a group,

25 would I be right in saying that you were the only amongst this group who

1 was going as the head of a coordinating centre, and that was Mostar?

2 A. Yes, but I did not know that until the end of my -- end of that 10

3 to 14 days. None of us knew where we were going until the last two or

4 three days.

5 Q. Thank you. Now, after you left for Mostar, you became the head of

6 the coordinating centre, and that would have been towards the end of June.

7 A. Early July. Early July.

8 Q. And during your time as head of the coordinating centre in Mostar,

9 I take it that you stayed in contact with Ambassador Thebault?

10 A. Yes.

11 Q. That you had access to the reports in Zenica, and that you

12 yourself forwarded your reports to the same regional centre?

13 A. Correct.

14 Q. I also understand from some documents that I have seen that

15 Ambassador Thebault did visit you in Mostar on more than one occasion?

16 A. Yes.

17 Q. Now, in terms of the conflict that you were involved in in Mostar,

18 of course, not involved personally, but the conflict that was ongoing and

19 the prevailing circumstances in Mostar, would I be right to say that this

20 was really a conflict between the HVO on the one hand and the Army of

21 Bosnia and Herzegovina on the other?

22 A. That is so, yes, with the additional factor that Mostar was being

23 shelled regularly on a random basis by the Serbs, by the Bosnian Serb Army

24 who were just over the mountains to the east.

25 Q. So in some respect, we can say that the situation in Mostar was in

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1 some respect parallel to the situation in Central Bosnia where you were to

2 become the head of the regional centre?

3 A. Yes.

4 Q. In October, you were designated as the head of the regional

5 centre. And I understand from our conversation that on this occasion, you

6 had quite a detailed handover with Ambassador Thebault.

7 A. Yes.

8 Q. And on this occasion, then, you had the opportunity to discuss his

9 views.

10 A. Yes.

11 Q. I would like, sir, to show you one document which highlights the

12 views of Ambassador Thebault and simply to ask you if some of these views

13 of Ambassador Thebault and simply to ask you if some of these views raised

14 in this document were communicated to you.

15 MR. BOURGON: [Interpretation] Mr. President, at this point in

16 time, I'd like to provide everyone in the courtroom with a series of

17 documents that have been put into bundles in order to facilitate matters

18 for everyone.

19 Q. Sir, due to some mistake, the document I wish to show you at this

20 time is not included in this collection. What I propose to do is to -- to

21 use the ELMO that is beside you in order for you to read this document

22 while everyone can see it in the courtroom. This is a document dated 4th

23 of August 1993. And the subject of the document is "human rights

24 situation in Bosnia and Herzegovina, an emergency situation." And it is

25 prepared by Jean-Pierre Thebault. If I can ask the usher, please, to take

1 the document and to put it on the ELMO so that everyone can see the

2 document.

3 Sir, I would like to refer you to this document which talks about

4 a situation as of 4 August 1993.

5 MR. BOURGON: [Interpretation] Mr. President, I'd like to point out

6 that the parts that are highlighted were highlighted by myself when

7 preparing for this. But unfortunately I don't have copies.

8 Q. [Previous interpretation continues] ... Where we talk at the top

9 of the document where we mention "this flow of thousands of people has

10 submerged the border with Croatia." And then moving down to the next

11 paragraph where we talk about "if those moves have been greatly prepared

12 by the effects of the irrationally passionate Croat propaganda describing

13 since months all Muslims as fundamentalists and Mujahedin slaughtering

14 women and children, as well as encouraged by the decision of local HVO

15 politicians, it is really today a tragic humanitarian situation."

16 And I go on to read just this paragraph: "The HVO accusations of

17 Muslim slaughtering actions are quite totally without justifications, but

18 their resulting ethnic cleansing of the last fighting is a sad truth. It

19 has to be recognised that BiH Army has always granted protection for the

20 remaining Croat population before, during, and after the fighting. But

21 the mistrust is too high, and the rumours are too strong."

22 I stop here, sir, to ask you whether this issue of Croat

23 propaganda of the resulting ethnic cleansing and the challenges which

24 arise from this situation, if you had the chance to discuss this with

25 Ambassador Thebault before taking on your duties as head of the regional

1 centre?

2 A. We would have discussed this in general terms certainly. I did

3 not discuss this specific report with him, which is written about a month

4 after I moved down to Mostar.

5 Q. Now, the situation itself concerning the Croat propaganda, is this

6 something you are able to comment upon?

7 A. I think inevitably, all sides in Bosnia indulged in propaganda.

8 Certainly in the Mostar area, the leaders did describe the Muslims as

9 fundamentalists, and they were very concerned that we, the Europeans, were

10 not aware of an impending Islamic fundamentalist state in Bosnia. This

11 was a regular theme of the Croats, yes.

12 Q. Thank you very much, sir.

13 MR. BOURGON: [Interpretation] Mr. President, I'd like to tender

14 this document into evidence. It was prepared by the witness's

15 predecessor. The witness can't recognise -- identify the document because

16 it was prepared before his time. But it's an official document and I

17 would request that it be admitted into evidence.

18 JUDGE ANTONETTI: [Interpretation] Mr. Mundis, as far as this

19 document is concerned, it was drafted by the Ambassador. What would your

20 position be?

21 MR. MUNDIS: Mr. President, the only part of the document I've

22 seen was that which was shown on the ELMO. Perhaps if I could actually

23 see the full document, I could state our position.

24 JUDGE ANTONETTI: [Interpretation] Very well.

25 MR. BOURGON: [Interpretation] Yes, Mr. President, perhaps we could

1 put the second page of the document on the ELMO so that everyone can see

2 the second page. And immediately after the break, I will have copies for

3 everyone. Perhaps we could wait to tender it into evidence until after

4 the break.

5 JUDGE ANTONETTI: [Interpretation] Very well. Do continue.

6 MR. BOURGON:

7 Q. Some of your responsibilities as head of the regional centre, and

8 that first one being that both when you testified last time in April, on

9 three occasions, you mentioned that the duties of the ECMM was first

10 political; secondly, military; and thirdly, humanitarian.

11 A. That is so.

12 Q. Can you tell us if there is a specific reason for this at the

13 order, because it appears that this was something important that you've

14 repeated three times, that it was first political, then military, then

15 humanitarian.

16 A. I think everyone recognised that the only long-term solution to

17 the situation in Bosnia and indeed elsewhere in the former Yugoslavia was

18 going to be a political one. And therefore, the political side had a

19 priority. But it was -- we were in the middle of a war, and therefore the

20 military side was crucially important. And as I think I may have

21 mentioned last time, in Bosnia the political and the military sides were

22 very closely interlinked. I could talk to military leaders about

23 politics, and to political leaders about military matters. But the

24 reasons why they were in that order, political, military, and

25 humanitarian, because it was considered that the political was the most

1 important issue.

2 Q. Would I be correct in saying, sir, that on the basis of this order

3 of priority, that the ECMM mission was really in Bosnia to look at the big

4 picture, especially for the benefit of foreign departments of various

5 states?

6 A. Yes. It was our job to collectively to provide all our nations,

7 all the nations of Europe, with an as accurate a picture as we could

8 manage of the situation on the ground.

9 Q. I would like to show you a new document, sir, and see if you can

10 tell me whether this document represents both the mission of the ECMM.

11 This is a document which was prepared by the European Community liaison

12 officer at the Bosnia and Herzegovina command in Kiseljak.

13 You will recognise on this document, of course, the role, focus,

14 and main mode of action, but also that this document was prepared at the

15 time you were the head of the regional centre in Zenica. Would you agree,

16 looking at page 2, that this was basically the way the ECMM functioned in

17 Bosnia, and that on page 3 is basically your own organisation of the

18 regional centre Zenica?

19 A. Yes, if I could just clarify that the date of this document, 7th

20 of July, in fact I was not the head of the regional centre Zenica. I was

21 in Mostar. But looking at the third page, there's a slight

22 misunderstanding here. The 7th of July.

23 Q. Sir, if I may just for --

24 A. Yes, yes, yes.

25 Q. -- the -- that is there --

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1 A. Yes.

2 Q. -- the Brioni agreement which gave way to this mission?

3 A. Correct. The third page, that is the organisation of RC Zenica,

4 yes.

5 Q. Thank you, sir.

6 MR. BOURGON: [Interpretation] Mr. President, after I have

7 concluded my cross-examination, I'll be requesting that this document be

8 admitted into evidence.

9 JUDGE ANTONETTI: [Interpretation] Mr. Bourgon, as far as this

10 document is concerned, on the first page, the 7th of July 1991, that must

11 be a mistake. It must be 1993. And I can also see that on page 2 and on

12 page 3, these pages don't have the same type of print as page number 1.

13 This document has certainly been put together from two sources. There's a

14 document that was drafted at another time than pages 2 and 3 of the

15 document.

16 MR. BOURGON: [Interpretation] Thank you, Mr. President. If I have

17 a look at the date, the 7th of July 1991, that was the date of an

18 agreement that was signed that made it possible for the mission to be

19 established. But before this mission started functioning in Bosnia and

20 Herzegovina, it had already started functioning in Slovenia. So the date,

21 1991, is correct. As far as the Chamber's comments on the type, the print

22 in the document, I'd just like to point out that this document was located

23 on Prosecutor's electronic site. And if we have a look at the numbers at

24 the bottom, you have pages 7249, and 7251.

25 JUDGE ANTONETTI: [Interpretation] What I wanted to say is that the

1 page that mentions the witness -- which mentions the presence of the

2 witness in 1993 can't have been drafted in 1991. So the document you are

3 giving us must have been put together by using a number of sources.

4 MR. BOURGON: [Interpretation] Mr. President, I would just like to

5 point out that if we have a look at the heading on the first page, it's a

6 document that consists of three pages, and there was a brief that was

7 prepared by the liaison officer. And the sources were referred to, and

8 the situation was explained at the time. But I only wanted to facilitate

9 the Trial Chamber's work. So if the Trial Chamber refuses to admit the

10 document into evidence, that doesn't cause any problems.

11 JUDGE ANTONETTI: [Interpretation] Very well. As far as the

12 document is concerned, what is the Prosecution's position? The witness

13 has recognised this document when he examined page number 3.

14 MR. MUNDIS: Mr. President, just to support what my learned friend

15 from the Defence has said, this is, in fact, a briefing document which

16 makes reference to the Brioni agreement. The Prosecution has no objection

17 to this document being admitted into evidence. It appears to be some type

18 of briefing document prepared by the EC liaison officer in Kiseljak,

19 clearly at some point in 1993, because of what the witness has testified

20 to. It simply makes reference on the first page to the agreement

21 establishing ECMM. Thank you.

22 MR. BOURGON: [Interpretation] Thank you, Mr. President.

23 JUDGE ANTONETTI: [Interpretation] Mr. Registrar, could we have an

24 exhibit number.

25 THE REGISTRAR: The exhibit will be DH188.

1 JUDGE ANTONETTI: [Interpretation] Thank you. Please proceed.

2 MR. BOURGON: [Interpretation] Thank you, Mr. President.

3 Q. Sir, if you could look at tab number 1 of the document -- of the

4 series of documents that have been given to you and to confirm that this

5 was basically the organisation of the regional centre Zenica. Sorry, the

6 big series of documents that was given to you. Under tab number 1, the

7 first document.

8 A. That is correct, yes.

9 Q. Thank you. I'd like to move on now to my first substantive topic

10 that I wish to raise with you. And that's, of course, a follow-up to the

11 examination-in-chief on the 6th of April. Now, in your testimony, in

12 response to a colleague -- to a question which was asked to you by my

13 colleague, you mentioned that you were interested in the Mujahedin issue.

14 A. Yes.

15 Q. And you also said that this is why you asked what the situation

16 was about concerning those Mujahedin.

17 A. I asked very regularly at many meetings about the Mujahedin, yes.

18 Q. And in response to a question you mentioned that to you, when

19 discussing this issue with General Hadzihasanovic and General Alagic, it

20 was clear that both General Hadzihasanovic and his successor, Mehmet

21 Alagic, did not like the Mujahedin.

22 A. That was certainly the impression I received.

23 Q. And they used to say that there were a few foreigners who were

24 fighting well for the Bosniaks, but that there were others who clearly

25 they would wish to have out of their area.

1 A. Correct.

2 Q. And it appears that you had the impression or you thought that

3 they wanted to impress on you that they had these Mujahedin under control.

4 A. Yes. I think it would be very difficult for any commander not to

5 admit that any troops in his area were not under his control. But as I've

6 said, I was never fully convinced that General Hadzihasanovic and

7 General Alagic did have all these Mujahedin fully under control.

8 Q. Thank you very much, sir. You beat me to my next question.

9 Simply, that this type of general talk, when two generals who have the

10 highest of respect for one another when they meet, it is quite normal if

11 nothing else to appear to be in control of all the forces on the

12 territory?

13 A. Yes.

14 Q. Now, because generals, of course, like to admit -- like to show

15 that they are in control.

16 A. Correct.

17 Q. And as you mention in your response, you believe or you were

18 never convinced that this was, in fact, the situation.

19 A. Yes. I think, yeah, one or two incidents which -- certainly that

20 awful incident at the end of January with the ODA, that clearly indicated

21 to me that that was not directed by the commander of 3 Corps.

22 Q. Now. You had a conversation with General Hadzihasanovic which my

23 colleague from the Prosecution referred to. And I'd like to refer you to

24 tab 14 in the series of documents that you have. And on page 8 of this

25 document, and I refer you to paragraph 10. Now, during this conversation,

1 sir, I take it that General Hadzihasanovic was basically telling you that

2 there were several kinds of Mujahedin; a first type which were foreigners,

3 and that was a problem that he was trying to solve. And that he saw two

4 solutions: Either to send them back to their countries or to integrate

5 them. Is that a fair representation of what General Hadzihasanovic told

6 you?

7 A. Yes, that is what I understood him to mean. Correct.

8 Q. And General Hadzihasanovic also referred to a second type of

9 Mujahedins which were criminals who tried to call themselves Mujahedin

10 because it was easier to commit crimes.

11 A. Yes.

12 Q. And he also referred to in the end of this paragraph that there

13 were no special Mujahedin organisation and that most of these peoples were

14 criminals who were wanted by their own country.

15 A. That is what he said, yes.

16 Q. Now, the context of this conversation, and I refer you just to the

17 paragraph just above, paragraph 9, at the end, the context of this

18 conversation was discipline. Would that be a fair statement?

19 A. Yes.

20 Q. And General Hadzihasanovic mentioned on that occasion that he had

21 no problems with soldiers, but only with people with weapons who do not

22 belong to the army. Do you remember General Hadzihasanovic saying that?

23 A. Which -- yes, yes.

24 Q. Paragraph 9 just at the end.

25 A. Indeed, absolutely.

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1 Q. Now, General Hadzihasanovic, would you say from -- on the basis of

2 this conversation, was indeed trying to solve what he considered to be a

3 problem?

4 A. Yes, it was clear to me that the Mujahedin were a problem to both

5 Hadzihasanovic and then Alagic. And I know that they wanted to try and

6 sort it out. As I say, I could never understand why they were ever

7 allowed into the country in the first place.

8 Q. And the fact that General Hadzihasanovic mentioned that he was

9 against fundamentalism, did you recognise this in General Hadzihasanovic?

10 A. Yes, because he used to enjoy his Slivovitz.

11 Q. Now, maybe you did not know what measures General Hadzihasanovic

12 was taking at that time to handle this problem, or did you know what he

13 was doing to handle the problem?

14 A. No, I did not know.

15 Q. I'd like to refer you to tab number 5 in the series of documents

16 that you have. And I would like you to take a few minutes to read this

17 document.

18 MR. BOURGON: [Interpretation] Mr. President, this is a document

19 that's already been admitted into evidence. It has been marked for

20 identification, and the number is DH165.

21 Q. Sir, by looking at this letter, and I understand I'm rushing you

22 here a bit because it's quite the... I would like to refer you to the

23 fourth line of this document, first paragraph, where

24 General Hadzihasanovic was referring to Arabs and Turks who have not

25 entered the ranks of the army in spite of having been invited to, and that

1 they are still contemplating proposals made to them by the army's chief of

2 staff.

3 Would you agree with me, General, that this indicates that these

4 Arabs and Turks are not under control of the 3rd Corps but that there is

5 something going on between someone at a higher level and the Mujahedin?

6 A. Yes. Of course, I have not seen -- never seen this very

7 interesting document before. But that is the clear implication of this

8 letter.

9 Q. And if I refer you to the first paragraph, three lines from the

10 bottom, where it talks about that these people wish to communicate

11 exclusively with top officials of the army staff and not with the 3rd

12 Corps commander. Would that indicate to you, General, that -- sorry, sir,

13 that General Hadzihasanovic was kind of left out of the loop?

14 A. That is certainly the clear implication of this letter.

15 Q. And in the third paragraph, sir, to the third line where we talk

16 about the methods of combat, but General Hadzihasanovic is expressing the

17 view that their methods of combat is directly detrimental to the BH State

18 and especially to the Army of the Republic of Bosnia and Herzegovina.

19 Would that be consistent with the views expressed to you by

20 General Hadzihasanovic later on?

21 A. Yes. I do not recall him saying -- making this specific point,

22 but it would be along the general lines of his suspicions of the

23 Mujahedin.

24 Q. And I now refer you to one last sentence, the last paragraph,

25 where General Hadzihasanovic is requesting your stances and opinions

1 regarding the solution to this problem because he does not want to be held

2 accountable. Would that be something reasonable for a commander who is

3 faced with a problem that is beyond his control to address his superior

4 headquarters and ask for their opinion and their help?

5 A. I can certainly absolutely understand the thrust of that last

6 paragraph, yes.

7 Q. Now, General, we see from the last paragraph that you have four

8 words in capital letters. And these words are "your stances and

9 opinions." Of course, this is a translation, so we don't -- maybe these

10 words appear a bit odd. But what I'd like to ask from you is that in a

11 military document, for a commanding general to put some words into capital

12 letters like this, would that be really that he is underlining a very

13 important issue?

14 A. Yes, I would agree. It would be unusual for a commander to put

15 words in capital letters when he's addressing his superiors.

16 Q. I'd like to refer you now, sir, to tab number 6 in the documents.

17 And I'd like to go straight into the order at paragraph 1. And this is an

18 order which is dated the 16th of June. It's three days following the

19 first letter addressed by General Hadzihasanovic. Now, would you agree

20 with me, sir, that what this order is telling General Hadzihasanovic is to

21 send these groups, referring to the Arabs and the Turks, to Igman and to

22 merge them with the SVK, meaning the supreme command independent

23 detachment in Zuka's unit. And in case they do not accept it, to show

24 them no hospitality and eventually to disarm them. Would you agree with

25 me, sir, that this is basically what the solution proposed by the

1 headquarters, to either send them away to work with an independent supreme

2 command unit or, if they refuse, not to make any -- show them any

3 hospitality and eventually, of course, to disarm them?

4 A. That is so, yes. Because "eventually" does not give a time scale,

5 but that is clearly the meaning.

6 Q. And eventually, even though this an order, it means that some

7 assessment or some leeway is left to the commander to determine whether

8 that is an appropriate solution?

9 A. I think the solution is there in a clear instruction. The only

10 thing that is omitted is a time scale.

11 Q. Now, can you just confirm before we move to the next document that

12 when we talk about a supreme command independent detachment, we are

13 talking about a unit which is basically an army asset as opposed to a

14 corps asset; that is, something that is outside of the 3rd Corps?

15 A. That is so, yes.

16 Q. I'd like to move on to tab number 7. And to show you, this is a

17 telephone conversation between General Halilovic, who was at that time

18 chief of staff of the Army of Bosnia-Herzegovina, and I refer you

19 immediately to the second page at line 15. So the conversation is between

20 General Halilovic and General Hadzihasanovic. And this is a conversation

21 which was initiated by General Halilovic. Now, I just read you the lines

22 15 to 30 where it appears that General Hadzihasanovic is saying "regarding

23 the information that we have received about those foreigners, it cannot be

24 done that way."

25 And General Halilovic answering: "Really?"

1 "No way, this is my third front line."

2 "No, no, but try, it is ordered here. Two of them have signed it.

3 Do you understand me?"

4 "Well, try to send one order without that second part, ordering

5 only to send them up there."

6 "Yeah."

7 "I should tell them I have received a letter."

8 "Good, but you may fax it as well."

9 Will you agree with me, sir, that on the reading of this

10 conversation, that what General Hadzihasanovic is actually doing on that

11 occasion is arguing or at least highlighting the fact that the order he

12 has received previously on the same day, the 16th of June, cannot be done

13 in this manner and he opposes the use of force to handle the problem

14 because he figures that this would be same as opening a third front?

15 A. Yes. I assume that he's referring to the second sentence of the

16 first paragraph of Delic's letter.

17 Q. Now, when we talk about a third front, can you, based on your

18 knowledge of the scenario in Bosnia and Herzegovina, what General

19 Hadzihasanovic had in mind by saying a "third front"?

20 A. I can only assume that not only were they fighting the Croats and

21 the Serbs, but this would also possibly mean fighting with the Mujahedin.

22 Q. And that by this letter, General Hadzihasanovic is expressing the

23 opinion that this would not be wise, at least at this time?

24 A. Yes. I understand this because, of course, I have never seen this

25 before, to say that he is reluctant to disarm them because this could lead

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1 to fighting. Correct.

2 Q. Thank you, sir.

3 I'd like to refer you to tab number 8 in the documents, which is a

4 new document which was sent directly to Mr. Sakib Mahmuljin on the 23rd of

5 July. So in this document, Mr. Mahmuljin is authorised to carry out on

6 behalf of army headquarters the necessary negotiations and arrangements

7 with the representatives of the Mujahedin unit regarding the following

8 issues. And that is to include the Mujahedin in the army and to use them

9 against the Chetniks and how they could be resubordinated to the 3rd Corps

10 command. And that this authorisation is limited to this specific issue.

11 Will you agree, sir, that this authorisation is basically saying

12 that the army headquarters has decided to negotiate directly with the

13 Mujahedin, and that this Mr. Mahmuljin is authorised to do this, not on

14 behalf of the 3rd Corps, but on behalf of the army?

15 A. Yes.

16 Q. Now, you yourself, sir, know who Mr. Mahmuljin is, because you

17 have met him later. Am I correct?

18 A. Yes, he took over from General Alagic as the commander of 3rd

19 Corps.

20 Q. Thank you, sir. I'd like to move on to the next document, which

21 is tab number 9 where we now have a proposal, and I refer you immediately

22 to paragraph number 1. This is a document that was forwarded from 3rd

23 Corps command to army headquarters, which proposes to organise the foreign

24 volunteers into one detachment and to mobilise them in a collection point

25 in a village called Mejoric, and to give a name to this unit, and to do it

1 as quickly as possible. Would you agree, sir, that this -- by this

2 proposal someone within 3rd Corps is proposing to establish this formation

3 of a detachment? And I also refer you to just below the word "urgent"

4 where it says "handwritten," it says there "organisation and mobilisation

5 administration, I agree. Organise a temporary establishment or establish.

6 Consider it".

7 If you look at the second page, which is the original, this was a

8 handwritten comment that was added. Do you agree that on this occasion,

9 this is, of course, a follow up to the authorisation that was given. And

10 it says there just above the word "proposal," it says: "On the basis of

11 the authorisation 1/297 of 23 July." So that this letter is a direct

12 follow up to the specific authorisation sent to Mr. Mahmuljin.

13 A. Yes.

14 Q. And that Mr. Mahmuljin is proposing to organise this attachment?

15 A. Yes, that's certainly my understanding in reading this letter.

16 Q. Now, if we look at the second page, the original, we see that

17 there is a signature block where it says "commandant and Enver

18 Hadzihasanovic," and there is no signature. Now, would you agree with me

19 that there are many reasons why a document ends up in army headquarters

20 without a signature?

21 A. Yes. It would be very unusual because even if the general was not

22 present, it would normally be signed by his deputy. So it's unusual to

23 have an unsigned document being forwarded in this way.

24 Q. Now, will you agree with me, sir, on the basis of your experience

25 that within a headquarters, there is a specific way for authorising

1 documents whether a document is authorised by the commander, whether a

2 document is authorised for the commander, and whether some people use the

3 word "commander," but really are taking their own authority, and that the

4 three scenarios have different implications?

5 A. I agree. But of course that is very easily simplified if a letter

6 like this is signed clearly by someone on behalf of it. Then it is clear

7 who signed the letter and why he would have signed it in the absence of

8 his boss.

9 Q. Thank you, sir. I'd like to refer you to the next document, which

10 is at tab 10. And this is an order that comes down from the army

11 headquarters on the 13th of August which orders changes, and basically

12 asks to form in the 3rd Corps zone of responsibility the El Mujahedin

13 detachment. And that it gives a code number, and that the mobilisation

14 plan would be administered by the 3rd Corps command.

15 Would you agree, sir, that by this order, the army headquarters

16 was basically telling 3rd Corps to officially take under control the

17 Mujahedin?

18 A. Yes, that is clearly what this letter indicates.

19 Q. And if we look at page 2 of this document, at paragraph 1 where it

20 says "begin immediately, and to be finished no later than 31 August." So

21 this would mean that the commander is given some time to make this happen.

22 A. Yes.

23 Q. I'd like to refer to you the next document at tab 11, which is a

24 document dated 28 of August 1993, which is an order -- now, this is an

25 order by the 3rd Corps command, and the order is addressed to the

1 operations group Bosanska Krajina and the 306 Mountain Brigade. If I

2 refer you to the second page of this document, it talks about moving the

3 independent detachment El Mujahid to the 306 brigade. And that the junior

4 commander of the El Mujahid would be responsible to the commander of the

5 306 brigade.

6 Now, I refer you, sir, to where we have a signature and where it

7 says that this order was not carried out. And you can also look at the

8 original document where we have a signature as well as the word "not

9 carried out." Would you agree with me, sir, that this is an indication

10 that as of 28 August, close to the deadline which was given to 3rd Corps

11 headquarters to solve the problem, that this order was not carried out and

12 that they were still working on the problem?

13 A. Yes. Of course, the -- it's a pity that there's no indication of

14 why it was not carried out. But that is true.

15 Q. Now, in light of the documents I have just shown you which, of

16 course, you did not have and you never saw before, would you agree that

17 General Hadzihasanovic was indeed trying to solve the problem all the way

18 back to the month of June 1993?

19 A. Yes. And of course, I found these documents extremely

20 interesting, and they would tie in exactly with my impression that there

21 was deep suspicion of the Mujahedin and attempt to resolve the problem.

22 Q. And these documents would also confirm that General Hadzihasanovic

23 did not like the Mujahedin and that, in fact, he was against them; and

24 also, that he believed that using force to take them under control would

25 not be appropriate?

1 A. Correct.

2 Q. Now, my colleague also referred you to a conversation during

3 examination-in-chief with a gentleman called Fazlic. And I refer you to

4 tab 17 within your list of documents. There are three things, sir, I

5 would like to cover with you concerning Mr. Fazlic. I would like first to

6 refer you to the page 0131064, which is the third page of this document,

7 at paragraph 4 where this is a meeting that you had with Mr. Fazlic. And

8 the first thing I'd like to confirm with you is that initially, this

9 meeting was to talk about civilian police matters, and that Mr. Fazlic

10 basically expressed all the successes he had in terms of getting rid of

11 the military gangs, and that he had a 62 per cent successful detection

12 rate and only one murder unsolved at that specific time.

13 If I refer you not to the next paragraph, but to the following

14 paragraph where it is mentioned the subject of intimidation of Croat

15 minorities. There was one specific issue mentioned, and that was the case

16 of the Botic husband and wife in Travnik. I take it that from this

17 document, you initially considered or were quite skeptic about this claim,

18 but now you had a lot of indications that this was well -- this may well

19 be true, that it was a classic suicide. Would that be a proper statement?

20 A. That is absolutely correct. I cannot remember now what those

21 indications were, but that is certainly the situation as I understood it

22 at the time.

23 Q. And just following this paragraph where we talk about the

24 president of the Zenica HDZ, using these deaths as an opportunity to cues

25 the BiH of murder and to accuse them of trying to carry out ethnic

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1 cleansing by persuading the Croats to leave Travnik. Would you agree that

2 based on your conversation with Mr. Fazlic and your understanding of the

3 situation at the time, he immediately took action when he heard about this

4 situation in Travnik?

5 A. Yes. That was certainly what he promised to do. I'm just trying

6 to remember whether I had any indication of a positive follow up on the

7 ground.

8 Q. Now, your conversation with Mr. Fazlic, sir, did that indicate to

9 you, and maybe you were well aware at the time already, that the civil

10 authorities were still functioning during the time you were head of the

11 regional centre Zenica?

12 A. Yes.

13 Q. And that actually, the war situation we were in was that of the

14 Army of Bosnia and Herzegovina, being the governmental forces, were

15 actually defending the national territory as the only legitimate army

16 against two aggressors; namely, the HVO and the Serbs?

17 A. Well, perhaps I could put it a slightly different way. The

18 initial aggression was entirely from the Serbs. But then, of course, it

19 developed into a fight between the Croats and the Bosniaks who were both

20 defending their own territory.

21 Q. Now, we will move on a bit later in terms of the sharing of

22 responsibilities. But in terms of Mr. Fazlic, would you also agree,

23 because then he went on to speak about the Mujahedin, and the first thing

24 that he said was that the Mujahedin, he had recently imprisoned three of

25 them, and he said that previously, the police had allowed the Mujahedin.

1 And now, they were arrested if they committed any crimes. Would that

2 indicate to you, first of all, a change in policy?

3 A. Yes. Of course, I do not know, because this is several months

4 later than the correspondence we were looking at a minute ago, what was

5 the eventual solution as far as the Mujahedin is concerned. But

6 certainly, it is quite clear that he stated that they would be arrested if

7 they committed any crimes, yes.

8 Q. And was he acknowledging by the same fact that the responsibility

9 to handle crimes committed by Mujahedin in Zenica was a civilian

10 responsibility, at least his responsibility as a civilian police chief?

11 A. Yes, but of course that does not quite tie in with what he then

12 said, saying that they were all under command of 3 Corps.

13 Q. Now, by saying that he was under command, and I come to that

14 because I'd like you to go to the next page where you mention at the top

15 that you were quite impressed by Mr. Fazlic, that he was a dynamic chief

16 of police. Would that be a fair statement?

17 A. Yes, he impressed me certainly.

18 Q. Now, this created a problem for you because on one hand, you

19 thought that Mr. Fazlic was genuine, but what he was saying was not the

20 impression that the commander of the 3rd Corps at that time, in January of

21 1994, Mehmet Alagic, was saying. So you had two visions of the same

22 problem.

23 A. Now, I think Alagic at that time was incredibly critical of the

24 Mujahedin. But he indicated that he did have them under control, to me,

25 although he said he would like them out of his area.

1 Q. Now, we'll move on to specific documents with Mr. Alagic. But if

2 we compare statements made to you by General Hadzihasanovic and

3 General Alagic, who had first-hand involvement with the Mujahedin, and

4 anything that might have been told to you by the civilian police chief,

5 would you agree with me that you would give more weight to what would be

6 told to you by the military commanders involved?

7 A. Yes, certainly.

8 Q. Now, in the comments made to you by Mr. Fazlic in January 1994,

9 and he did not indicate to you since when these people would have been

10 under control, if they were.

11 A. Correct.

12 Q. And he did not say -- basically this could mean that the problem

13 was solved, but we don't know.

14 A. Yes.

15 Q. But he did tell you that he had just put bad criminals in jail who

16 were Mujahedin.

17 A. Yes.

18 Q. So any -- from these documents, any further guess would be pure

19 speculation.

20 A. Correct, yes.

21 Q. Now, another incident happened. And this will be the last one we

22 cover before the break, was that a kidnapping in mid-October where four or

23 five Croats were kidnapped in Travnik. Do you recall this event?

24 A. Yes.

25 Q. Now, in response to a question by my colleague, you mentioned that

1 you were not involved in this type of activity, at least initially.

2 A. Not initially, no.

3 Q. I'd like to refer you to tab number 12 in this document. Tab

4 number 12, and I refer you to paragraph 5 on the first page, where it says

5 "the HVO have been holding a wounded Mujahedin soldier in Busovaca jail.

6 And as a response, the Mujahedin in Travnik have taken five new civilian

7 hostages, and one has since been released."

8 I now refer you to paragraph 7 where we have a conversation where

9 it is said that "after asking Mr. Beba, who was the chief of security in

10 Travnik, we were asking for his advice concerning the release of the

11 Croatian hostages, and his answer was that he could do nothing for the

12 moment. And he spoke strongly off the record about the lack of control

13 which the Mujahedin are displaying, and he gave the following points."

14 The first one that whatever the Mujahedin were doing, they were really

15 going in terms of giving ammunition to the Croat propaganda. Secondly,

16 that the commander, Alagic, of the operations group, because now we are

17 back in October, he had other concerns, but that he will demand control

18 when the conditions were right. And he also indicated at paragraph (c)

19 that if the Mujahedin do not accept to work under the control of the army,

20 that this could lead to an armed conflict.

21 Would this information, sir, fit well in terms of all the

22 documents we've seen earlier and the situation in January, where we are

23 now in October, at the end of October, and we do not have the Mujahedin

24 under control, but it is strongly acknowledged that there is a problem?

25 A. Yes, that ties in with my understanding. Absolutely.

1 Q. I would like to refer you now to tab 13, where we are talking

2 specifically about General Alagic. And to the second page of this

3 document in the middle, where we have "V1 meeting with ICRC concerning the

4 allegations that Mujahedin are taking Croatian hostages." And I refer you

5 there to the middle of this paragraph where it says "commander Alagic, who

6 will attempt to pressure the Mujahedin to release the hostages. Alagic

7 claims his efforts in the past resulted in the release of one hostage but

8 four still remain, and he hastened to add that the Mujahedin are not under

9 his control." If we come back to the first page, this is a document dated

10 29 of October 1993, and would you agree that this is a report that was

11 prepared by team V1 attached to the coordinating centre at Travnik?

12 A. Yes.

13 Q. Would you also agree that when Alagic is saying, or at least is

14 portrayed as saying, that he will attempt to pressure, that a commander

15 who had control would say "I will do something" and a commander who does

16 not have control will say "I will attempt to do something"?

17 A. Yes, this ties in exactly with my understanding that the Mujahedin

18 were a law unto themselves.

19 Q. I'd like to refer you now to tab number 15. And we have three

20 documents in this tab. The first document is dated 26 of November. And

21 this is a document which was prepared by the liaison officer of Travnik

22 and addressed to the commander officer of the British Battalion who was at

23 the time Lieutenant Colonel Williams. At paragraph 2 of this letter, it

24 is said that "the operation group in Travnik has no power over the

25 Mujahedin, and that there seemed to have been considerable efforts by all

1 commanders to avoid blame." Also says that "Beba Salko, the gentleman

2 that we referred to earlier, had a major falling out with Alagic over this

3 issue." And the comment is "I think that everyone is not only embarrassed

4 over the situation but also face is being lost because the Mujahedin are

5 not under control."

6 Would you agree that this also portrays the situation as you

7 understood it at the time, in November of 1993?

8 A. Yes.

9 Q. Now, at paragraph 3 of this letter, we mention that the two

10 hostages which have been released are in protective custody. And the

11 gentleman, Captain Guinness went to see these people and they seemed

12 content to be there. And at para 4 of this document, it appears that the

13 two that are still being detained, according to them, they say that only

14 Alagic would be the man who has any authority over the Mujahedin.

15 Now, if we link this paragraph with what Beba Salko was saying

16 earlier on in the other letter, that it would need to be higher than

17 Alagic to do something about this issue, would that once again illustrate

18 the situation as you understood it?

19 A. Yes. It is of interest that they say that Alagic is the only man

20 who had authority. That was their opinion.

21 Q. I refer you to the next page under this document, which is a

22 letter written by Colonel Williams addressed to Brigadier Ramsey, chief of

23 staff of BH command of UNPROFOR. And I refer you to -- this letter is

24 written on the 5th of December. And the last three lines of the first

25 paragraph where it says: "The release of the two missing hostages may be

1 beyond even the power of Mehmet Alagic, commander of the 3rd Corps Bosnian

2 Army, as it is unclear whether he even controls the Mujahedin units."

3 Would you agree that this was the understanding of Colonel

4 Williams, that the Mujahedin were not under control?

5 A. Yes.

6 Q. I refer you to the next document under this heading, which is a

7 milinfosum dated 1 December which is referred to by Colonel Williams in

8 his letter, and I refer you to paragraph 6 where it says: "When asked" -

9 in the middle of the paragraph we're talking about Beba Salko - and it

10 talks "when asked about the two hostages held by the Mujahedin in Mijovici

11 it was stated that it would have to go higher than Alagic for their

12 release, and that this possibly reflects that Alagic does not have

13 absolute control contrary to what we've seen earlier, and that the

14 Mujahedin were either an independent unit or under Opcon at army level."

15 Would that indicate to you, sir, that this milinfosum is saying

16 either one of two things, the Mujahedin is still a unit which has not been

17 integrated, or, again, that it is an army asset and it has nothing to do

18 with the 3rd Corps?

19 A. Well, I don't know what the de jure situation on the ground was at

20 that time, as far as the Mujahedin is concerned. But clearly, the opinion

21 expressed here is that Alagic would not be able to effect the release of

22 these hostages, and it would have to go higher than him.

23 Q. Thank you very much, sir. We will stop here.

24 MR. BOURGON: [Interpretation] Mr. President, I think that it is

25 time for the break.

1 JUDGE ANTONETTI: [Interpretation] Yes. We're going to adjourn for

2 the break. And we will resume at 10 or 15 past 11.00.

3 --- Recess taken at 10.58 a.m.

4 --- On resuming at 11.24 a.m.

5 JUDGE ANTONETTI: [Interpretation] You may take the floor.

6 MR. BOURGON: [Interpretation] Thank you, Mr. President.

7 Q. Sir, when we departed just prior to the break, I was asking you

8 whether you could confirm that the information we went through this

9 morning fell in line with your views concerning the Mujahedin. And you

10 basically mentioned that whether or regardless of the de jure situation of

11 the Mujahedin, for sure the de facto situation was that they did not

12 exercise control over the Mujahedin.

13 A. That was certainly my opinion.

14 Q. Now, I would like to refer you, sir, to tab number 18 in the

15 series of documents that I've shown you. And tab number 18, and I draw

16 your attention to the last paragraph of this document at paragraph 6, page

17 3, where it is mentioned that V1 met with Commander Alagic who informed

18 that he was -- he would shortly become the commander of 3 Corps, but that

19 he would attempt to assist with the problems of hostage-taking by

20 Mujahedin.

21 I would also like to refer you to tab 16 before asking my

22 question, tab 16 being your own letter addressed to Mrs. Popovic, in which

23 you say on the 1st of January, and I refer to the middle paragraph, where

24 you say that you had two meetings with General Alagic to discuss the

25 matter of her husband, and that General Alagic had assured me that he was

1 doing all he could to find out what has happened and that he would let you

2 know.

3 Can you confirm on the basis of these two documents that even

4 though the Mujahedin were not de facto under control, that General Alagic

5 did tell you and was sincere in saying that he would do everything he

6 could to find out what was going on and to solve this problem.

7 A. Yes, he assured me of this on more than one occasion. And I was

8 confident that he meant what he said.

9 Q. Now, given, sir, that this situation we are talking about, your

10 letter dated 1 January, and the first document, which is a report from

11 Team V1 from the coordination centre Travnik, dates back in November,

12 would you agree that if the situation with regards to the Mujahedin was

13 unclear in November, December of 1993 and January of 1994, that it was

14 even less so or less clear in October when General Hadzihasanovic was

15 commanding the 3rd Corps?

16 A. Yes. It was clear that although this had been going -- this

17 problem had been going for several months, no progress had been made at

18 all.

19 Q. Now, sir, I'd like to move to another topic, which is the issue of

20 Vares which you covered in your examination-in-chief. Now, I don't want

21 to cover the event itself given that General Hadzihasanovic is not charged

22 with any events. But I'd like to refer you to tab number 2 and to discuss

23 with you the strategic importance of Vares. And my question, of course,

24 would be that do you agree that Vares was indeed of strategic importance

25 to the 3rd Corps and to the Army of Bosnia-Herzegovina?

1 A. Yes, it was extremely important because it was a Croat-HVO

2 enclave. And once Vares was in ABiH hands, then the ABiH Army could move

3 from the north 2 Corps, 3 Corps, 6 Corps, 4 Corps, all the way down to

4 Gornji Vakuf without passing through any Bosniak areas. Because they

5 could skirt Vitez and Busovaca over the mountains.

6 Q. Thank you. I would like to refer you to the second document.

7 This is a report that was drafted before you ever arrived in Bosnia on the

8 2nd of June. But I'd like you -- to refer you to paragraph number 5 where

9 it says that "the Bosnian Serb Army actions suggest that there may be an

10 effort underway to take Maglaj and to cut off the Maglaj finger to form

11 yet another Muslim pocket." At paragraph (b), we say that the Doboj/Serb

12 salient may be pushed east to connect with the Bosnian Serb to the east,

13 and that if this were to occur, two things would result, which is the

14 creation of yet another pocket, which is the Tuzla pocket; and a much more

15 useful corridor between east and west for Serbian areas, and one more

16 acceptable to the Croats. And that the effects of this, at paragraph 6,

17 would be a flood of refugees similar to what happened when Jajce fell.

18 And that Zenica would be overwhelmed with refugees, which would

19 destabilise and weaken the BiH position in Zenica and reinforce the

20 Croatian population of the Travnik-Kiseljak line.

21 Can you relate to the operational situation as described here on

22 the ground.

23 A. Yes. Of course, the Maglaj finger did become a Maglaj pocket, but

24 they did not succeed in the -- the BSA did not succeed in the second task,

25 which was linking up Doboj with the east and thus creating a Tuzla pocket.

1 Q. So you can acknowledge the fact that the ABiH did lose and that

2 the Maglaj finger in fact became a pocket?

3 A. Correct.

4 Q. And this, of course, was a very dangerous sign for the Army of

5 Bosnia-Herzegovina?

6 A. Yes.

7 Q. And that in this respect, the operation in Vares later that year

8 was as in some sort not only to create the route up to the north, but also

9 to prevent the salient operation joining the Serb east and the west?

10 A. Yes.

11 Q. I would like to refer you now to tab number 4 of this document.

12 Sir, tab number 4 is a report which is dated 21 August 1993. It is a

13 report which was addressed by General Hadzihasanovic which you can see

14 from page 27, and it is a situation report which covers the situation in

15 which the 3rd Corps was on 21 August 1993.

16 I take it that such a document would have been very useful to you

17 in 1993.

18 A. Yes, it would have been extremely useful.

19 Q. Now, this document, if we -- if I take you to page 5 in the

20 middle, there is a comment in the paragraph called "conclusion" where it

21 says, and -- about the middle where it is mentioned "we think that we

22 should pay full attention to this while engaging our forces and direct our

23 actions towards preventing the introduction of the aggressors' forces into

24 the said areas so as to avoid the repetition of the Zepce case." I know

25 this is just a small part of a big document. But would you agree that

1 General Hadzihasanovic by this paragraph is assessing in terms of

2 operational planning the way the forces must be employed in order to avoid

3 losing any further territory in Bosnia and Herzegovina, and more

4 specifically, in this case, the situation such as Zepce?

5 A. That would certainly be my understanding.

6 Q. Would you agree with me, sir, that this kind of report which

7 assesses and -- the situation in terms of a full evaluation of the enemy

8 forces, a full evaluation of friendly forces or our own forces, a full

9 evaluation of problems and challenges is the kind of assessment that would

10 be made by a reasonable commander, and that such a document would not

11 contain any misinformation as a commander always wants his superior

12 headquarters to be fully informed of the situation he is in?

13 A. Yes, I would say that a report such as this written by any

14 military commander would have to be as truthful as he understood it.

15 Otherwise, it would be worthless.

16 Q. I'd like to refer you, sir, now to tab number 18 of the document

17 simply to move to page 2 of this document where we are talking about -- it

18 is a conversation that you had with a gentleman called Zubaca who was the

19 commander of the operation leading to the takeover of Vares by the Army of

20 Bosnia and Herzegovina. I simply refer you to the top paragraph where it

21 says: "BiH authorities are encouraging Croats to remain in Vares,

22 inviting refugees to return, and that they will not seek revenge."

23 Do you recall either a conversation or the contents of such a

24 conversation?

25 A. I'm sorry, can I just read that a moment.

1 Q. Yes, I'm sorry.

2 A. Yes, I remember that.

3 Q. If I may direct you a little further down, sir, to the paragraph

4 that begins with a question where it says "what is the future for Croats

5 in Vares." And the answer was: "They are welcome to stay because

6 historically, Muslims and Croats have always gotten along well in Vares,

7 and the BiH wanted a political solution, but this was not possible with

8 the HVO." Does that also reflect the position of the Army of Bosnia and

9 Herzegovina?

10 A. That's certainly what Zubaca said at that time.

11 Q. And lastly, sir, if we move to -- three paragraphs down where the

12 question was "now the BiH has a secure route to Tuzla." And the answer to

13 this question was: "Yes, BiH 4, 6, 2 and 3 Corps are now connected, and

14 Vares is the crucial link. The new road to the north is no longer so

15 important." Would that indicate to you that Vares was a multicorps

16 operation which would require a lot of planning, and that is taken at

17 least at the operational level if not the strategic level?

18 A. Yes. Because it involved both 2 and 3 Corps.

19 Q. If I may now refer you to a new document which I would like to

20 give you, it is a document dated 4 November 1993 which is a report from

21 the regional centre Zenica. And I bring your attention to page 3 of this

22 document where it says: "HRC's assessment for November 1993." Would you

23 recognise this as being your own assessment, the type of which you would

24 do on a weekly basis, to report on what was the situation at the time?

25 A. Yes, it is certainly my input into this report. Absolutely.

1 Q. If I may refer you to the next page, the third paragraph, which

2 reads as follows: "It is certainly clear that the capture of Vares has

3 given the BiH a significant strategic advantage, and for a start they are

4 now able to link up 4, 6, 3 and 2 BiH Corps, thus enabling them to have a

5 front running from Mostar in the south to Tuzla and beyond in the north."

6 Was this your assessment of the situation with regards to the

7 Vares operation?

8 A. Yes.

9 Q. Now, my question would deal more specifically with the Vares

10 operation. Is that the type of planning and the type of operations and

11 the type of work on a daily basis which is the work of a corps commander?

12 A. Yes. A corps commander would certainly be assessing strategic

13 priorities and making recommendations to his superiors about what is to be

14 done next.

15 Q. And I suggest to you, sir, that it has been said that a corps

16 commander working at the operational level would normally think at least

17 four days ahead. Would that be a fair statement?

18 A. Certainly, at least four days ahead, yes.

19 Q. If I move on to a different issue, that of discipline, would you

20 agree with me, sir, that the issue of discipline is of paramount

21 importance to any army, and that it is what makes an army successful or an

22 army that will be defeated?

23 A. Yes. Agreed.

24 Q. And that when we talk about discipline, it means that a commander

25 must be sensible to the fact that army regulations will be respected.

1 Would you agree?

2 A. Yes, I agree.

3 Q. And that, for example, in times of war, a violation which would be

4 minor in peacetime can have major consequences in war. And I give you an

5 example: Leaving one's duty station in peacetime may have little

6 consequences but in wartime may have absolute disastrous consequences?

7 A. I agree.

8 Q. And that discipline would also be to enforce national law or

9 common-law crimes and to take action if soldiers commit common-law crimes?

10 A. Yes.

11 Q. And also to abide by international law and to take action

12 against -- if soldiers commit any events against international law?

13 A. Yes.

14 Q. Now, the object of discipline, of course, is to make one's force

15 operational and effective. But would you agree with me that what a

16 commander has to do is has to try to prevent violations, to stop them, and

17 to take measures to ensure that if there are violations they will be taken

18 care of?

19 A. I agree.

20 Q. And sometimes, depending on the level of the commander, sometimes

21 he will take action himself, and sometimes he will take action by

22 referring a matter to, for example, legal authorities?

23 A. Yes.

24 Q. And that once a specific matter has been taken care of, either by

25 the commander himself or by a commander at a subordinate level, or by a

1 legal institution, whatever it may be, that in such a case, the commander

2 has respected what his responsibilities are?

3 A. Yes. Of course, I'm not quite sure -- I mean, if he is asked

4 advice from legal authorities and he gets that advice, then presumably he

5 would act on it. Yes.

6 Q. Now, of course, it is important for the commander to realise what

7 his duties are, and if there are, like in this case, civilian authorities

8 which are still operating, then it's important to understand what was the

9 role of the commander with respect to the law and what was the role of the

10 civilian authorities.

11 A. Yes, I'd agree.

12 Q. Now, we have -- we went through two examples. The first one is

13 when we talked about the work of Mr. Fazlic as the civilian police chief.

14 He would take care of the civilian common-law crimes.

15 A. Yes.

16 Q. And in your examination-in-chief, we covered a situation of a

17 priest named Stipan Radic. And you thought that this gentleman was a good

18 man in a tough situation, that he reported some issues concerning the

19 army. And your answer to that question was, I quote here to page 18 of

20 the transcript on page 67, "I think they did turn out to be true because

21 when they were followed up by Bosniak commanders, they accepted there was

22 a problem. And in invariably, there was an improvement in the situation."

23 Can you confirm, sir, these were your views at the time and your

24 understanding of the situation that when Mr. Radic did bring some problems

25 to the attention of the authorities, whether civilian or military, actions

1 were taken to try and improve the situation?

2 A. Yes.

3 Q. I'd like to move now to the issue of the military situation on the

4 ground. And I'm a bit running out of time already, so I have to go a bit

5 quicker. But I'd like to confirm with you, you've mentioned already the

6 situation of the HVO and the Serbs. But I'd like to suggest to you a few

7 issues which might have an impact on the exercise of command by the

8 commanding general of a corps. And, for example, the fact that the

9 commander had to deal with a Serb front line of more than 300 kilometres,

10 would that be a factor that would weigh heavily on a commander's planning?

11 A. Yes.

12 Q. And the issue of roads and where roads were not accessible or

13 blocked, either to Sarajevo or up north to Tuzla, that this was also

14 something that the commander must have been concerned about?

15 A. Yes, certainly.

16 Q. And that the issue of refugees was a big problem; in fact, you

17 mentioned in your examination-in-chief that there were more than 50.000

18 refugees in Zenica alone?

19 A. Yes.

20 Q. Would this be a problem that would definitely impact on the work

21 of the commander?

22 A. Yes, it would have been inevitably a big concern, yes.

23 Q. And the embargo on weapons that we mentioned, would that also be

24 something that would affect the planning because the commander must always

25 plan ahead in terms of: I have less weapons so how can I distribute my

1 forces to face stronger weapons from the other side?

2 A. Yes, I would agree.

3 Q. And the fact of having a new army, which is something that you

4 felt you were uneasy about, having both a new army that was less then one

5 year old, is that something that may create a more difficult situation for

6 a commander?

7 A. Yes, definitely. I would have thought that both sides, although

8 they had some senior officers who had served in the JNA, inevitably, some

9 of the more junior officers were recently recruited, and their calibre was

10 unknown, and therefore some of them I am sure were not fully reliable.

11 Q. Sir, if I may direct you now to tab number 4 of the document which

12 is again this report I was referring to, and to page 22. Page 22 is the

13 number of killed and wounded from the beginning of the war until 31 July

14 1993. And if we look at page number 23, the total, it refers to 1.570

15 persons or soldiers killed, and 6.478 soldiers wounded. Would that be a

16 factor that would weigh heavily on the planning of the commander and where

17 he would put his priorities?

18 A. Yes. Any high-casualty rate or any casualty rate would inevitably

19 be a major factor in planning.

20 Q. If I may refer you to a little earlier in the same report, and I'm

21 talking here at page 14, the second paragraph where it says that the corps

22 command itself was at a 66 per cent establishment rate. Would that be a

23 factor that would make the life of a commander much more difficult?

24 A. Yes, inevitably, yes.

25 Q. And if we move down to -- down at the page, the total number for

1 the corps itself, which was at 73.34 per cent, would also -- would that

2 also make the situation more difficult for the commander?

3 A. Yes, it would.

4 Q. And with respect to manpower, in response to a question by my

5 colleague in examination-in-chief, you said that there was much more

6 people or much more people of military age on the Bosnian side.

7 A. Yes.

8 Q. Would you agree with me, however, that even though you have much

9 more people, that one, if you don't have weapons for those people, they

10 cannot be very useful; and that unless and until these people are trained,

11 it takes a lot and imposes a burden on the commander?

12 A. Absolutely. The Serb strength was in their weaponry; the Bosniak

13 strength was in their manpower.

14 Q. And would you agree with me that the situation in Central Bosnia

15 or were you aware of the fact that the Serbs and the HVO were linking up

16 together in terms of fighting the Army of Bosnia and Herzegovina?

17 A. There were certainly indications that in certain places, this was

18 happening, yes. For example, when the Croats move north out of Vares, it

19 is clear that they moved into Serb-occupied Bosnia, and then down to

20 Kiseljak.

21 Q. Thank you, sir. Were you also aware that at some instances,

22 whereas the line facing the Serb was previously occupied as a joint

23 venture with the Army of Bosnia and Herzegovina and the HVO, that the HVO

24 withdrew from the line, thus causing a big problem of manpower for the

25 commander of the corps?

1 A. I cannot think of a specific incidence where this happened, but

2 undoubtedly it did once the two armies split.

3 Q. Now, also in the same document at tab 4, I'd like to refer you to

4 page 10. Now, I wish I'd had time to go through some more of these issues

5 in detail, but if we look just at the first paragraph under "command and

6 control problems," commander Hadzihasanovic here is highlighting the fact

7 of three very important factors with which he is having problems, which is

8 the competence of personnel, communications, and motivation. Would these

9 be factors that would make his life and the exercise of command more

10 difficult?

11 A. Yes. Those are three key factors.

12 Q. Now, I don't have time to refer you to these specific, but the

13 fact that he brings these issues to the higher headquarters, would that

14 also be an indication that he is considering these problems as being

15 serious?

16 A. Yes. And of course, the point about the competence of personnel

17 ties in with my comment which I gave a few minutes ago.

18 Q. And sir, would you agree that the presence of internationals in

19 Central Bosnia also could make the exercise of command more difficult,

20 whereas on the average General Hadzihasanovic could be visited by ten

21 different persons each day who all wanted to see the corps commander, and

22 that he had to answer to all these requests?

23 A. Yes. I would agree.

24 Q. And are you also aware about the fact that Zenica, where the corps

25 headquarters was located, was being shelled on a regular basis?

1 A. Yes.

2 Q. And finally, during your conversation, and this is at tab 14, but

3 I will move through, one issue was highlighted by General Hadzihasanovic

4 which was the fact that two helicopters had been hijacked by the HVO and

5 for a very long period of time were not available for casualty

6 evacuations. Would that also be a significant factor in the planning and

7 the priorities established by the commander?

8 A. Yes. This was certainly a big blow to the ABiH Army, and it's one

9 that we ourselves pursued over many months to try and get them back.

10 Q. And finally, one of the issues that was highlighted by

11 General Hadzihasanovic was the fact that when the opposing force commits

12 crimes, that it also makes it very difficult for a commanding general to

13 control his troops because they feel and they would like to seek revenge.

14 A. Yes.

15 Q. Now, all of these factors, sir, you will agree with me they don't

16 change the fact that the commander is responsible?

17 A. Correct.

18 Q. But nevertheless, when he establishes his priorities and when he

19 decides what he is going to do and when, all of these factors have a very

20 important bearing?

21 A. Yes. These are factors which he would have to weigh up very

22 carefully.

23 Q. Now, I'd like to go on by looking at the exercise of command. And

24 if I tell you, for example, that General Hadzihasanovic, because he

25 thought that he had 300 kilometres of front line, himself at his own

1 initiative forced a meeting of all corps generals and proposed the

2 creation of an additional corps; basically, that his corps area would be

3 split into two. Would that be a sign of a responsible general?

4 A. Yes, it would.

5 Q. And a general who is given an organisation where he has 19

6 brigades to lead and who, by himself, initiates the creation of

7 operational groups, kind of, something like divisions, in order to

8 facilitate his control over his troops, would that be a sign of a

9 commander who is trying to do his best to control his people?

10 A. That would certainly be a sensible course.

11 Q. And if I suggest to you that General Hadzihasanovic introduced a

12 system of identification cards to ensure that we would know at all times

13 who was in the Army of Bosnia and Herzegovina, would that also be a good

14 measure to control the people?

15 A. Yes. I was not aware that that had happened, but it would

16 certainly be a sensible move.

17 Q. If I propose to you that General Hadzihasanovic introduced a

18 system of vehicle registration to ensure that vehicles used by the army

19 could be identified as such, would also -- would that also be a very good

20 measure to control the forces under his command?

21 A. Yes, it would.

22 Q. And if I suggest to you that General Hadzihasanovic issued

23 multiple orders that you probably have never seen because you did not have

24 access to the orders, telling his commanders at all levels to abide by the

25 law, would that also be the sign of a reasonable commander?

1 A. Yes, that would be a quite correct exercise of authority.

2 Q. If the same General Hadzihasanovic took a number of measures to

3 ensure that commanders subordinate to him would take measures to prevent

4 and to stop violations of discipline and of any criminal act, and that he

5 issued orders to that effect, would that also be a sign of a responsible

6 commander?

7 A. Yes, it would.

8 Q. And General Hadzihasanovic, if I propose to you, ensured that the

9 military justice system was works by authorising his commanders to do

10 special military courts, and even giving them the power of death over his

11 troops, their troops, would that be a commander who cares about discipline

12 and the enforcement of law?

13 A. Yes, I would say so. Yes.

14 Q. And if General Hadzihasanovic thought that the justice system was

15 not working well enough in order that this created problems for him from

16 an operational point of view and that he then complained to his higher

17 headquarters "do something about the justice system because it is giving

18 me problems on the ground," would that also be the sign of a reasonable

19 commander?

20 A. I would say that makes absolute sense, yes.

21 Q. And if a general succeeded, despite all the conditions that we

22 have covered since the beginning of my cross-examination, if such a

23 general had succeeded in fulfilling his mission in that he took a corps

24 which was nonexistent, he built that corps, and if we only look at the

25 difference between June when you were there and November when you were

1 there, the success and the improvement in the workings and the discipline

2 of this corps, would that be a sign of a very good and effective

3 commander?

4 A. Yes, I would say so.

5 Q. And if in such a situation, the commander took the measures even

6 to train his people and to create a training centre, despite wartime

7 conditions, to ensure that his troops would be trained, would that also be

8 a commander who cares not only about discipline, but about accomplishing

9 his mission?

10 A. I think in view of what we discussed previously, that would be

11 most important and a correct course, yes.

12 Q. Now, sir, the one issue that -- I saw a document yesterday in

13 which you yourself sent a document - and I don't have this document with

14 me, but I'm sure you will recall - you sent that document within the

15 United Kingdom chain of command. And you were saying in this document

16 "that doesn't apply to me, I'm a retired general. But there's a lot of

17 military officers here who come in this theatre of operations expecting

18 that if they do good they will either be promoted or get special rewards."

19 And that you were highlighting this issue to your chain of command or your

20 ex-chain of command to ensure and say: Come on, guys, we have guys

21 operating on the ground here and they should be rewarded and they should

22 get reports if they do a good job. Do you recall writing this message?

23 A. I certainly recall writing along those lines, yes.

24 Q. And if I tell you, General, that General Hadzihasanovic in his

25 report that we saw was asking for better pay for his soldiers and for

1 better conditions for his soldiers and better rewards for his soldiers,

2 despite wartime conditions, is that a commander that is caring about his

3 soldiers?

4 A. I think that's certainly a facet of command which is very

5 important.

6 Q. Now, we saw a bit earlier that it appears that one of the options

7 General Hadzihasanovic had with respect to the Mujahedin was to use force.

8 And it would appear on the documents that he decided not to. Would you

9 agree?

10 A. Yes.

11 Q. Now, would you agree, sir, that if we were to challenge this

12 decision today, that any one who wanted to challenge this, it would be

13 necessary to have information with respect to what resources he had?

14 A. Yes.

15 Q. With the fact that: Who were the Mujahedin in terms of how many

16 there were, where they were, what weapons they had, what resources they

17 had, and what techniques they used, that this would have been important

18 before using force against any enemy force?

19 A. Yes, they were potentially dangerous, yes.

20 Q. And that it would also be important to have a full appraisal of

21 the operational situation in terms of knowing exactly if he takes a

22 company off the line to address this problem, or if a company is enough,

23 what are the consequences and will that lead to the line being broken and

24 him losing territory? Anyone challenging his decision today would have to

25 have such information?

1 A. Yes, one would have to have a very clear indication of who one was

2 up against, yes.

3 Q. And would you also agree that it would be necessary to challenge

4 such a decision to understand that whether General Hadzihasanovic had the

5 authorisation from his supreme headquarters before opening up a third

6 front?

7 A. Yes. Initially, it appears as though his superior headquarters

8 was recommending this line, but clearly if he decided to follow that, he

9 would need to go back to them in view of what he'd replied.

10 Q. Now, you've met General Hadzihasanovic. I'd like you to turn to

11 tab number 3 of this document. Tab number 3 is document dated 7 October.

12 And this was at a time when you were not yet head of the regional centre,

13 but you were designate head of mission. And at that time, you met with

14 General Hadzihasanovic and Mr. Merdan, and this is a three-page report

15 dealing with all kinds of issues with General Hadzihasanovic. Do you

16 recall this moment?

17 A. Yes.

18 Q. Now, I refer you to paragraph 10 where it says "Hadzihasanovic is

19 clearly an intelligent man, soft-spoken, articulate, polite, but quite

20 convinced in his views and opinions. And he made clear that the elements

21 of the BiH at least have the will and the capacity to continue the fight

22 until they achieve their goals. Also imply that money was not a problem

23 because he was getting donations from abroad." And if we would go back to

24 the beginning of the document, he also says that this money is not coming

25 only from the Islamic sources, that if he is reflecting the views of

1 Izetbegovic, that peace might be a long way off.

2 Now, this assessment of General Hadzihasanovic, would you concur

3 that this is the assessment that you agree that he was yet tough but

4 totally professional, that he was absolutely clear and straight in his

5 dealings with you? This is something that you mention in your

6 examination-in-chief.

7 A. Those are my views at the time, and I've no reason in the

8 intervening years to change them.

9 Q. And you mention that he was clear -- it was clear that he had

10 authority and that he was -- so would I take that this would mean that he

11 was in command of the corps and that he was doing his best to make the

12 corps work?

13 A. That was certainly my view. Yes.

14 Q. And you mention something that you were of the impression that he

15 was being well aware of what was going on in his area. Would that mean,

16 sir, that being well aware of what is going on means that he knows what

17 type of war he's in, what type of scenario he's facing, and he knows what

18 his next move will be?

19 A. Yes.

20 Q. Is that what you were referring to?

21 A. Yes, exactly.

22 Q. And that doesn't necessarily mean being aware of a specific

23 incident which might happen?

24 A. Correct.

25 Q. Now, if we go on, you say that you were -- he was absolutely clear

1 and straight in his dealings with -- sorry, that the fact that he was

2 giving straight answers and -- straight answers would -- that could be

3 understood as being that you knew that he -- when he gave you an answer,

4 he was not giving you false information and that you knew you could get

5 the right story from him?

6 A. I certainly believed what he told me, yes.

7 Q. You mentioned in your examination-in-chief that although you were

8 not checking on him, when things developed later on, they always proved

9 that what he had told you was actually what he was really telling you?

10 A. That is so, yes.

11 Q. Now, if I look at General Hadzihasanovic the way you met this man

12 on the ground in 1993, and when I look at -- I propose to you that

13 everything I said in terms of the measures taken, not only in terms of

14 discipline but the measures to train, the measures to communicate, the

15 measures to inform his higher headquarters, the measures to inform the

16 international representatives dealing with him, I would like to ask you

17 one question of opinion with respect to the character of General

18 Hadzihasanovic: Would you think in your assessment of what we have

19 covered today and what you saw from the man in 1993 that he would be the

20 type of commander who would not take action to discipline someone if he

21 had the occasion to do so?

22 A. I certainly considered him to be a good general, which would

23 certainly imply what you've said.

24 Q. Thank you very much, sir. I'd like to take this opportunity to

25 highlight the fact I saw from the documents that tomorrow is your 69th

1 birthday, and I wish to wish you a happy birthday. Thank you very much.

2 A. Thank you.

3 MR. BOURGON: [Interpretation] That ends the cross-examination on

4 behalf of General Hadzihasanovic, Mr. President.

5 JUDGE ANTONETTI: [Interpretation] I turn now to the other Defence

6 team.

7 MR. DIXON: Thank you, Your Honours.

8 Cross-examined by Mr. Dixon:

9 Q. Only a few questions on behalf of Mr. Kubura. You said in your

10 examination-in-chief that you travelled to the town of Vares on the 4th of

11 November 1993 with Mr. William Stutt. Is that right?

12 A. Yes.

13 Q. And it's correct that when you arrived there, you found that the

14 Bosnian Army was in control of the town of Vares, the HVO having withdrawn

15 without putting up any fight. Is that right?

16 A. That is so, yes.

17 Q. You also said that you noticed damage in the town, broken windows

18 and broken doors you mentioned. But that you were not in a position to

19 say whether that damage was caused by the Bosnian Army that was there or

20 by the HVO forces that had withdrawn. Is that right?

21 A. That's right.

22 Q. You testified to the fact that you recognised the 7th Brigade when

23 you were approaching Vares. There were troops from the 7th Brigade, you

24 said, on the outskirts of Vares. Is that right?

25 A. Yes.

1 Q. And you said that you probably identified them because they were

2 wearing insignia on their shoulders which were specific to the 7th

3 Brigade?

4 A. Yes. I cannot remember quite how we identified them, but we

5 certainly did identify them as 7 Brigade.

6 Q. And may it have been because of the insignia that they were

7 wearing --

8 A. Yes. That's most likely, yes.

9 Q. When you went into the town of Vares, however, you said that you

10 were not able to identify the units of the Bosnian Army that were in the

11 town itself?

12 A. Correct, yes.

13 Q. You saw a number of soldiers in the town but you weren't able to

14 specify which units the soldiers were from in any detail?

15 A. No, there was an awful lot of shooting going on so it was not

16 possible to stop and identify them.

17 Q. You were aware of the fact, as this was a multicorps operations,

18 that there were a number of units from a number of corps involved in the

19 operation to take control of Vares?

20 A. Yes.

21 Q. The soldiers that you then saw in the centre of the town, would it

22 be fair to say that they were from many of those units that had been

23 involved in the operation to take control of Vares?

24 A. I would not be able to say from which units they came.

25 Q. Would you agree with me that it is possible that they were from

1 the different units that had been involved in the operation to take

2 control of Vares?

3 A. Yes, it is certainly possible, yes.

4 MR. DIXON: Thank you very much, Sir Martin. I have no further

5 questions.

6 JUDGE ANTONETTI: [Interpretation] Yes, Mr. Mundis.

7 MR. MUNDIS: Thank you, Mr. President. The Prosecution has just a

8 few questions for the witness.

9 Re-examined by Mr. Mundis:

10 Q. Sir, for the record, we've never actually met. My name is Daryl

11 Mundis. I'm one of the Prosecutors on the case. Mr. Withopf whom you met

12 earlier is in the process of packing his office. Today is in fact his

13 last day here at the Tribunal.

14 I have, sir, just a few questions for you. In response to

15 questions from the Defence for Mr. Hadzihasanovic, you indicated that it

16 was your opinion that the 3rd Corps did not have de facto control over the

17 Mujahedin.

18 A. Yes. That was my opinion.

19 Q. If --

20 MR. MUNDIS: Mr. President, if I could just ask the usher, I'm

21 sorry, to perhaps move the ELMO. I'm having a bit of difficulty seeing

22 the witness. Thank you.

23 Q. Sir, on how many occasions did you actually observe any Mujahedin

24 or foreign fighters in Central Bosnia?

25 A. I saw very few in Zenica itself. And occasionally, one spotted

1 individuals when one was driving around -- particularly around the

2 mountains, which I did not often do, the mountain road to Novi Travnik.

3 So they were not very much in evidence.

4 Q. Sir, how much information, if any, did you have about possible

5 military operations in which 3rd Corps units and Mujahedin units were

6 operating together?

7 A. Very little. That is why I was constantly asking about the

8 Mujahedin. We knew very little about them and their activities.

9 Q. Sir, would it in any way surprise you if there were other

10 individuals who testified that Mujahedin were spearheading operations for

11 3rd Corps units?

12 A. Well, I'd be very interested. But I cannot think of any specific

13 examples, although Vares, of course, could certainly be one as they were

14 on the outskirts of Vares. Yes.

15 Q. Sir, as a former commander of the Royal Marines, can you tell us a

16 little bit about the need for command and control with respect to the

17 first marine or the first unit, for example, to hit the beach and to

18 spearhead the operation?

19 A. Command and control, of course, is absolutely fundamental. And

20 the more complicated an operation, the more important it is. Command and

21 control and, of course, communications.

22 Q. And specifically, sir, with respect to the first soldier or

23 soldiers or a rekkie unit that's sent into a village, how important would

24 that be for a commander to have a degree of control over those soldiers?

25 A. Crucially important because he would be waiting for the

1 information to come back as to how the operation was going.

2 Q. Let me turn briefly to another issue, that being discipline. Can

3 you tell us a little bit about the relationship between discipline and the

4 importance of a commander's role in preventing crimes from happening

5 and/or punishing crimes which he becomes aware of that have happened, the

6 relationship between those and discipline.

7 A. I think both are entirely interrelated. A commander must be

8 confident that his officers and men are behaving correctly and not doing

9 anything which they are not allowed to do. And therefore, if he discovers

10 that they are, then it's clearly essential that he exercises discipline

11 effectively as possible.

12 Q. So I take it from that answer, sir, that maintaining good order

13 and discipline would be a very important component of a senior military

14 commander's responsibilities?

15 A. Fundamentally important.

16 Q. And in fact, we, at least based on my own experience in the

17 military, we refer to good order and discipline by the initials GOD. Have

18 you known of that term?

19 A. It's an interesting -- I like it, but I'm not familiar with it.

20 Q. Now, my colleagues from the Defence put to you about ten different

21 scenarios or ten different factors would be a better way of characterising

22 it, ten different factors that impacted upon the situation facing General

23 Hadzihasanovic, including the length of the front line, difficulties with

24 refugees, difficulties with roads being blocked, et cetera. And clearly,

25 based on your answers, he was in a very difficult situation.

1 A. Yes, yeah.

2 Q. What impact, if any, did those factors have on his

3 responsibilities and duties to prevent crimes from happening or to punish

4 perpetrators for crimes that he became aware of?

5 A. Clearly, it was a very hectic period for him. But that would in

6 no way stop him exercising full command over disciplinary matters.

7 Q. Now, sir, you were shown today a series of documents and a

8 transcript of a phone intercept or a phone conversation. I take it from

9 your responses that the information contained in that series of documents

10 was new to you today.

11 A. Yes. And I only wish I'd had it all ten years ago.

12 Q. So I take it from that answer, sir, that at no point did

13 General Hadzihasanovic in any discussion tell you about steps he might

14 have been taking with respect to higher commands concerning the

15 information in these documents?

16 A. No.

17 Q. Sir, you also were shown a document that did not have a signature

18 on it, that had the signature block of General Hadzihasanovic but no

19 signature. Do you remember that?

20 A. Yes.

21 Q. Now, of course, based again on your experience, can you tell us

22 about any type of situations where military units are using means of

23 communication that would not have a signature on it?

24 A. I am not familiar at all with -- unless nowadays emails, of

25 course, don't have signatures. But otherwise, a normal letter would

1 certainly have a signature on it.

2 Q. But there would be other types of military documents that would

3 not have signatures, electronically transmitted documents?

4 A. Yes, indeed.

5 Q. For example, the documents that ECMM sent, the reports that you

6 sent, those reports don't bear signatures?

7 A. Correct, yes.

8 Q. And again, based on military needs or military communication

9 systems, there would be, then, certain types of systems where there are no

10 signatures?

11 A. Yes.

12 Q. I think, Sir Martin, you've answered all of our questions. Thank

13 you very much.

14 JUDGE ANTONETTI: [Interpretation] Sir Martin, I will have a few

15 questions for you.

16 Questioned by the Court:

17 JUDGE ANTONETTI: [Interpretation] I would like to ask you

18 something about the subject of control. On a number of occasions in

19 answering questions, you referred to the question of Mujahedin and as to

20 whether they were under control or out of control. As a military man and

21 a very high-ranking officer, could you define "control" when one has a

22 command over a particular geographic area. How would you define that

23 control.

24 A. I would say that the elements of the forces in your area were

25 doing -- carrying out your orders and that you knew exactly what they were

1 doing and they were not doing anything which was unacceptable to you.

2 JUDGE ANTONETTI: [Interpretation] And in military terms, control

3 over a certain geographic area where a state of war has been declared, is

4 that control implemented over civilian, military, paramilitary elements?

5 How far can that control go in your opinion? And over whom is that

6 control exercised?

7 A. I think in a war situation, inevitably, the rules change somewhat

8 and military commanders can, within their powers, which will be given to

9 them, direct what civilians do, within certain parameters.

10 JUDGE ANTONETTI: [Interpretation] The Defence has produced a

11 document on the mission you had under the European Union. It is DH88 and

12 it envisages three tasks or roles. The quest for a long-term peaceful

13 solution, respect of human rights, and the rule of law.

14 Would you subscribe to that mission which had three axes, the

15 political, the rights of human rights, and the rule of law? Was indeed

16 the mission that was entrusted to you on the ground.

17 A. Yes, Your Honour, except that -- I mean, those were fundamental

18 principles under which we were operating. But at our level, I suppose we

19 were considering taking more into account practical steps that we needed

20 to take on the ground. But those certainly were the overriding

21 principles.

22 JUDGE ANTONETTI: [Interpretation] So in practice, you had an

23 individual to deal with involved with the kidnapping of Mr. Popovic.

24 Because among the documents produced by the Defence, we have the letter

25 that you sent to Mrs. Popovic in which you say that General Alagic has

1 given you assurances that he would do everything necessary.

2 In your opinion, the kidnapping of a civilian, does that fall

3 within the frameworks of your mission; that is, to ensure respect of human

4 rights?

5 A. Yes. They would certainly come under our responsibilities.

6 JUDGE ANTONETTI: [Interpretation] To the extent that you were

7 aware that somebody was kidnapped by an unknown or known group of people

8 and you were informed by the victim, were you concerned about the destiny

9 of that gentleman, Mr. Popovic, as you were informed about it? And by

10 saying that General Alagic will take care of it, does that morally relieve

11 you of your responsibility?

12 A. No, indeed, Your Honour. But it is one that I kept pressing to

13 get an answer right until the time I left Zenica to move back town to

14 Mostar in April. But, sadly, I never got an answer, and only found out

15 what had happened to Popovic subsequently.

16 JUDGE ANTONETTI: [Interpretation] And when you left to go to

17 Mostar, and seeing that no progress had been made, an army has a hierarchy

18 and above General Alagic there must have been another authority. Wasn't

19 it then your duty to take it to a higher level, to the political level?

20 Because it appears that you were told that this person was under the

21 control of an element that was out of control. Wouldn't it then be

22 necessary to take steps in favour of the family whose member had been

23 kidnapped.

24 A. Yes, Your Honour. But of course, the situation in Central Bosnia,

25 there was no Bosniak political authority that had the same authority as

1 the military authority, if -- I hope I've made myself clear. As far as

2 the key people in Central Bosnia on the Bosniak side were the Bosniak

3 commanders. And if they could not achieve what I asked them to achieve,

4 referring it to the political side in Central Bosnia, to the president of

5 the Zenica SDA, for example, would have not achieved anything, in my view.

6 JUDGE ANTONETTI: [Interpretation] So it appears that you're

7 telling us that the competent authority was not the political authority,

8 but rather, the local commander who had full powers. Is that the gist of

9 your answer?

10 A. Your Honour, yes. As I mentioned before, in Bosnia the military

11 and the political were inextricably intertwined. But in Central Bosnia,

12 it was clear that it was the military commanders who on the Bosniak side

13 who were really in charge.

14 JUDGE ANTONETTI: [Interpretation] But you when you realised that

15 General Alagic was doing what he could but that clearly it was not up to

16 his level, why didn't you feel it necessary to raise this issue either

17 with the 3rd Corps command or Ambassador Thebault when he arrived; that

18 is, to take it up with the supreme command?

19 A. Well, of course, Ambassador Thebault had gone by this time because

20 I was the head of the regional centre. And I felt that if the commander

21 of 3 Corps, I rested my hopes in the commander of 3 Corps achieving the

22 release of Popovic. There was no one really else who had the power to do

23 so.

24 JUDGE ANTONETTI: [Interpretation] When you left to go to Mostar,

25 who was the 3rd Corps commander as far as you are aware?

1 A. Before I left for Mostar, the commander of 3 Corps had passed to

2 General Mahmuljin whose name came up earlier on in the cross-examination.

3 JUDGE ANTONETTI: [Interpretation] And you didn't have any form of

4 contact with General Mahmuljin, did you?

5 A. I met him before I left. But when I left to return to Mostar, it

6 was to join the EU administration of Mostar. And therefore, I was cut off

7 completely from the EC monitor mission. Therefore, I had to leave any

8 follow-up action for outstanding matters to my successor.

9 JUDGE ANTONETTI: [Interpretation] Very well. Thank you.

10 The Judges have no more questions for the witness. But does

11 Defence counsel have any further questions?

12 MR. BOURGON: [Interpretation] Thank you, Mr. President. I have a

13 few brief questions I would like to ask.

14 Further cross-examined by Mr. Bourgon:

15 Q. Sir, you were asked by the Presiding Judge concerning the

16 jurisdiction or the power of the military commander. And I would like to

17 simply suggest to you that if a commander is in a zone of occupation, that

18 in such a case, we all know, and military officers know, that when you are

19 into a zone of occupation, then the commander is responsible not only for

20 the military but for the civilian aspects. Would that be a fair

21 statement?

22 A. Yes.

23 Q. For example, if we look in Iraq today, some people have said,

24 although this is disputed, that the United States of America are, in fact,

25 occupying Iraq. Would that be your views?

1 A. That's certainly a view that is stated, yes.

2 Q. And if so, the military commander, his jurisdiction goes way

3 beyond the military force and applies to the maintenance of civil order.

4 A. Yes. If we're talking about Bosnia, presumably we're talking

5 about Bosnia now, yes.

6 Q. Now -- no, sorry, we're talking about Iraq. If Iraq was a

7 situation of military occupation as some people say it is, then the

8 authority of the military commander goes way beyond the military force.

9 A. Yes, if that is the situation, yes.

10 Q. Now, you've acknowledged that in a situation such as Bosnia, the

11 civil authority was still functioning, that civilian police was still

12 working.

13 A. Yes.

14 Q. Can you also acknowledge that the civil emergency was still

15 operating?

16 A. Civil emergency?

17 Q. Civil emergency. Civil protection, sorry. I was looking for the

18 English word.

19 A. Civil defence.

20 Q. Civil protection was also operating.

21 A. Certainly there were elements of the civilian infrastructure which

22 were functioning, yes, to a greater or lesser extent.

23 Q. And that the government of Bosnia and Herzegovina, there was still

24 a legitimate government in force?

25 A. Yes.

1 Q. And given that you also understand that the Army of Bosnia and

2 Herzegovina was fighting on its own territory, would that be a fair

3 statement?

4 A. Yes, yes.

5 Q. So they were not into a situation of occupation.

6 A. No.

7 Q. And in such a scenario, if a commander is not into a situation of

8 occupation, what determines his powers will be the law?

9 A. Yes.

10 Q. And if we look at the law, we will know whether or not he had any

11 powers beyond the military force?

12 A. Correct.

13 Q. Now, I move on to your -- the situation of having your own role as

14 part of ECMM. Now, of course, the name of your mission was European

15 Community Monitoring Mission. Can we take from the name that the overall

16 objective beyond promoting and focussing modes of action, that the main

17 focus was to monitor the situation and to report it back to Zagreb?

18 A. Absolutely. Monitoring and reporting.

19 Q. So you were not there to investigate or to police the area?

20 A. No.

21 Q. Or to solve problems?

22 A. Where we could, we did. Particularly on the humanitarian front.

23 But we were not -- we did not have authority to go out and arrest people

24 or do anything like that. We could only use our own pressures to try and

25 achieve results, particularly in the humanitarian field.

1 Q. Now, cases such as the Popovic case, now this case is now made

2 very -- seems to be a special case, but there were numerous incidents

3 which were reported to you through all of your teams were different

4 violations committed by different people were reported to you at all

5 times, almost on a daily basis. Would that be a fair statement?

6 A. Yes. There were many, many incidents reported, yes.

7 Q. And in some cases, you had -- it was easier for you to use your

8 good offices or your pressure to try and bring a solution to a problem,

9 but that was not your first role.

10 A. That is so, yes.

11 Q. And when you did report a situation such as the Popovic, when you

12 wrote a report which went all the way up to Zagreb, the world knew about

13 the situation.

14 A. Yes.

15 Q. And if the politicians wanted to do something in addition to your

16 own mandate, they could -- there's numerous things they could have done.

17 A. Yes. Perhaps I could just make one point clear. When you say all

18 politicians would have known about, for example, Popovic, we were not in a

19 position to tell Zagreb headquarters what they were going to put in their

20 reports which went on to capitals. So we were never aware -- we never saw

21 the final report which went off from Zagreb.

22 Q. Thank you, sir. But the -- once the report arrived in Zagreb, the

23 mission itself as it was created - it is a kind of collective agreement of

24 states - as it was created, those people were mandated to run the ECMM

25 operations; they knew about the situation, and they could elect to report

1 or not and to recommend actions or not?

2 A. Correct.

3 Q. One last question concerning the issue of control. You responded

4 to the question by the Presiding Judge that to you, control was you can

5 issue orders. You know that your orders will be respected or will be

6 enforced. And you know that those units will not do things without you

7 knowing them. And that is control.

8 A. Yes.

9 Q. Now, without going into the technical details, would you agree

10 with me that there are situations where a commander has an area of

11 responsibility, and within this area there are forces which are not under

12 his control?

13 A. Yes.

14 Q. And if I give you one example, if you are a brigade commander and

15 you have an area of responsibility, it may be that the corps commander

16 will locate artillery resources in your area. These resources will be in

17 location. Chances are you will be informed because you want to know who

18 is in your land, but you have no control over division artillery resources

19 placed in your brigade area.

20 A. No, but you would certainly as a commander insist on being made

21 aware of exactly what other forces were in your area and what they were

22 doing.

23 Q. And those forces that are -- this is one example of forces placed

24 in your area which you have no control over, but there are even other

25 scenarios where you don't control forces in your specific area?

1 A. Yes. But again, you would have to know what is going on.

2 Otherwise, you could not exercise command in your own area.

3 Q. Thank you very much.

4 MR. BOURGON: [Interpretation] I have no other questions,

5 Mr. President. Thank you.

6 MR. DIXON: Thank you, Mr. President. We have no further

7 questions.

8 JUDGE ANTONETTI: [Interpretation] Mr. Dixon has no further

9 questions.

10 Mr. Mundis.

11 MR. MUNDIS: Thank you, Mr. President. Just a couple questions

12 following from those put by Your Honours.

13 Further examined by Mr. Mundis:

14 Q. Sir Martin, you told us based on your experience the military

15 authorities and not the political authorities were really in charge in

16 Central Bosnia, were you making reference to the de jure situation or the

17 de facto situation?

18 A. I was referring to the de facto situation.

19 Q. And, sir, what was the basis for you reaching that conclusion?

20 A. It is just, for example, on the Croat side, if I wanted really the

21 man at the top, I would go not to the military leader but to the political

22 leader, a man called Dario Kordic. That was just a fact. And on the

23 Bosniak side, I would go to the commander of 3 Corps. Because one knew

24 after having been there a very short time who was the boss.

25 Q. Thank you very much, sir.

1 JUDGE ANTONETTI: [Interpretation] Sir Martin, this concludes your

2 examination. I'd like to thank you for having come here on a number of

3 occasions to testify as a witness for the Prosecution. The Trial Chamber

4 would like to thank you for the contribution you have made to establishing

5 the truth. We wish you a good trip home and we wish you all the best when

6 you return home and in the course of your activities. We hope you have

7 many interesting such activities. I will now ask the usher to escort you

8 out of the courtroom.

9 THE WITNESS: Thank you very much indeed, Your Honour.

10 [The witness withdrew]

11 JUDGE ANTONETTI: [Interpretation] Mr. Mundis, could you tell us

12 what the schedule is for next week. We will commence with the hearings on

13 Tuesday next week.

14 MR. MUNDIS: Mr. President, we have provided the Chamber and the

15 Defence with a letter indicating the specific order. We will have on

16 Tuesday commencing at 14.15 hours Mr. Junhov, followed by the two

17 witnesses for which the Chamber has ordered their testimony via videolink.

18 I might also add, Mr. President that, as I indicated yesterday, the

19 Prosecution is prepared to either read into the record or I can reduce to

20 writing information pertaining to the Trial Chamber's oral order of 17 May

21 2004 and the meeting which was held between the Trial Chamber's legal

22 officer and the senior trial attorney, Mr. Withopf. I anticipate if we

23 were to do that on the record, it would take some 15 to 20 minutes.

24 Again, alternatively, I can reduce that to writing and provide it to the

25 Chamber and the Defence certainly by Tuesday morning or Tuesday midday

1 prior to our sitting on Tuesday. I leave it up to Your Honours whether --

2 which course of action you would propose we take with respect to that

3 issue.

4 JUDGE ANTONETTI: [Interpretation] Very well. It would be possible

5 for you to make oral submissions. You could do this for about 15 minutes

6 today perhaps.

7 MR. MUNDIS: Indeed, Mr. President. I note the time, and I think

8 we're due for a break. I could certainly do that after the break.

9 JUDGE ANTONETTI: [Interpretation] Very well. In that case, it

10 would be best to have the break now. It is a quarter to 1.00. We will

11 resume at 10 past 1.00. And we'll have sufficient time to deal with the

12 issue.

13 So we will resume at 10 past 1.00.

14 --- Recess taken at 12.46 p.m.

15 --- On resuming at 1.16 p.m.

16 JUDGE ANTONETTI: [Interpretation] Mr. Mundis, I shall give you the

17 floor.

18 MR. DIXON: Sorry, Your Honour, before Mr. Mundis commences, there

19 is a matter affecting the schedule for next week. And I don't believe we

20 have translation on the transcript yet because I don't have it on my

21 screen, Your Honours. So I should wait for that, I would presume. I'm

22 informed that the transcript is working.

23 Your Honour, it concerns -- there's probably no need to go into

24 private session, but it concerns the order that Your Honours made this

25 morning concerning the protective measures for a particular witness.

1 Your Honours, in light of the very clear ruling that Your Honours have

2 made, it is the Defence's position that the only step that we can,

3 therefore, take in order to vary the protective measures is to apply to

4 the Blaskic Appeals Chamber itself in order that the matter be

5 reconsidered by the Chamber that is still seized of the matter, not the

6 Trial Chamber any longer, but the Appeals Chamber in that case.

7 Your Honours, clear, this is not an appeal of Your Honours' decision, but

8 it is an application which, it is our understanding under Rule 75 we are

9 entitled to make. Either party, either the Prosecution or the Defence

10 with supply to vary the existing protective measures. And we do plan to

11 take such an application immediately. We will be in a position to file

12 that application on Tuesday morning after the break on Monday.

13 Your Honours, it is our understanding that that will then affect

14 the scheduling for next week as in our view the witness cannot be heard

15 until the Blaskic Appeals Chamber has ruled on our application.

16 Your Honours will be aware that there is a videolink planned for another

17 witness for next week. So in our view, the videolink procedure can still

18 go ahead. But only in respect of one witness and not the other while we

19 await that decision to be made.

20 It is our submission that that matter does need to be resolved

21 before the witness testifies. As Your Honour will recall, this witness

22 indicated to Your Honours that he would not be able to testify unless he

23 got protective measures because of the position that he holds in his

24 church. And it is, therefore, essential that this matter is resolved

25 before he testifies so that he is in a position to know what exactly the

1 measures will be that will apply to him, if any.

2 So Your Honours, as a result of this application, there will be in

3 our view a knock-on affect the schedule for next week will have to be

4 altered to some extent with one of the witnesses, Your Honours will know

5 which one, not being in a position to testify via videolink until the

6 decision is made by the Blaskic Appeals Chamber.

7 As a result of that decision, which hopefully can be taken within

8 the time that the Prosecution case is still open, another date will have

9 to be found for that witness. I understand, and this might well become

10 clear now in the outline that Mr. Mundis is going to give, that the

11 Prosecution case might well last most of this month and into June and most

12 of June. So there will be an opportunity once the decision has been

13 rendered by the Appeals Chamber for the witness to be recalled depending

14 on what the outcome of that decision is. I'm grateful, Your Honours, for

15 that opportunity.

16 JUDGE ANTONETTI: [Interpretation] Mr. Bourgon.

17 MR. BOURGON: [Interpretation] Thank you, Mr. President. Simply to

18 tell the Chamber that this will be a joint application. Thank you,

19 Mr. President.

20 JUDGE ANTONETTI: [Interpretation] Regarding the question of the

21 witness, let us first go into private session, Mr. Registrar.

22 [Private session]

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3 [Open session]

4 THE REGISTRAR: Your Honours, we are back in open session.

5 MR. MUNDIS: Thank you, Mr. President. With respect to the

6 videotapes, perhaps I can address those in just a few moments. Let me

7 again state that we are not in a position to call any additional witnesses

8 other than the one scheduled for Tuesday for next week. I leave it to the

9 Trial Chamber with respect to the witness who is scheduled for Wednesday

10 morning, the first witness, with respect to a videolink and I raised that

11 simply because, Mr. President, as you're undoubtedly aware, there is a

12 huge economic cost in providing testimony by way of videolink. And if we

13 were only talking about one witness, that may not necessarily be the best

14 use of the Tribunal's resources, although I obviously leave that to

15 Your Honours' discretion. We still want that witness to testify whether

16 it's next week or a few weeks after that pending the resolution of the

17 matter with respect to the second witness.

18 Let me just briefly state another possibility with respect to that

19 second witness, however, Mr. President: One other available option would

20 be that he be permitted to testify pursuant to the Chamber's earlier

21 order, that is, the order rendered this morning; and in the event the

22 Appeals Chamber then varied the order, that one remedy perhaps could be to

23 then make that testimony available to the public. That would be another

24 issue that, again, I leave to Your Honours for their consideration.

25 With respect to the timing issues and the medical condition,

1 another suggestion would be for the Prosecution to adduce his evidence by

2 way of Rule 89 (D), having him simply affirm his statement and then make

3 him available for cross-examination, albeit on a shortened time frame,

4 perhaps over the course of three days sitting 30 minutes per day. Again,

5 I leave those issues to the Chamber. The Prosecution, of course, still

6 would like those witnesses to testify prior to the closing of our case.

7 And if, in fact, an additional delay results due to that, we would seek

8 leave to call those witnesses at a later time. But again, because of the

9 Chamber's prior order, it's completely in the Chamber's hands with respect

10 to the timing of those two witnesses whose testimony is to be heard via

11 videolink.

12 If I could, Mr. President, turn, and Your Honours, turn to the

13 other issue that I wanted to address you --

14 JUDGE ANTONETTI: [Interpretation] Wait a moment, please. I shall

15 give you the floor in a minute.

16 The Prosecution is suggesting the following procedure: And before

17 deciding, the Chamber must see what the reactions of the Defence are. The

18 Prosecution quite rightly notes that videoconference testimony entails

19 considerable cost. And if there's only one witness, it's not worth

20 setting in motion this whole procedure and that the available witness

21 would then testify on another day. But the solution that is suggested

22 would be that nevertheless, we proceed notwithstanding the application to

23 the Appeals Chamber. We proceed with the closed session testimony; and if

24 the Appeals Chamber rules that there was no reason to grant protective

25 measures, then the testimony itself would be made public.

1 The Chamber would like to hear the reaction of Mr. Dixon and

2 Mr. Bourgon after that. I hope you have understood the mechanism which is

3 very subtle and which has been suggested by the Prosecution.

4 MR. DIXON: Yes, Your Honour. We would not at this stage agree to

5 that mechanism for two reasons: The first being that as I indicated

6 earlier, Your Honour, this witness, when he came here before Your Honours,

7 made it absolutely clear that if he was not granted protective measures,

8 he would not be in a position to be able to testify. Whether he's

9 entitled to say that or not and what the consequences of that are is a

10 different matter. But he said that he would not be able to because of the

11 position he held in his church and the instructions that he had been given

12 by his church. And it's for that reason primarily that it would need to

13 be resolved before he testifies.

14 And then second, Your Honour, there's the question of the right to

15 a public hearing, which in our view must mean that the public are able to

16 have access to that testimony as it is being given. Whether that be on

17 the internet or here in the courtroom as opposed to only being able to

18 read a transcript much later on. The effect of that is in our view quite

19 significantly diminished. So our submission would be that the matter has

20 to be resolved first. Otherwise, the witness will be in a position where

21 he is testifying and he won't know whether or not that might be made

22 public later and then it's going to be dependent on a decision which is

23 still to come. And in our view it should be resolved first. If it means

24 that the other videolink witness must wait and the two are done together

25 at a later stage in June in order to save money, that would seem to be a

1 prudent action. Not to have either videolink witness now, but to wait

2 until after the decision, and then to have both at that stage, depending

3 on what the decision is. Thank you, Your Honours.

4 JUDGE ANTONETTI: [Interpretation] Very well. Mr. Bourgon.

5 MR. BOURGON: [Interpretation] Thank you, Mr. President. Simply to

6 tell the Chamber that we support the arguments set forth by the Defence of

7 Mr. Kubura. And there's an additional factor: And that is that the

8 witness can only testify for 30 minutes a day, and maybe in a week or two,

9 his condition will be better.

10 JUDGE ANTONETTI: [Interpretation] Mr. Mundis, you have the floor.

11 MR. MUNDIS: Thank you, Mr. President. I will turn now to the

12 issue for which I initially asked to address Your Honours. Pursuant to

13 the Trial Chamber's oral order of 17 May 2004, the Prosecution was ordered

14 to provide a number of items for the Trial Chamber. As Your Honours are

15 aware, earlier this week, in order to clarify some of those issues and to

16 provide updates to the Trial Chamber with respect to progress, the

17 Chamber's legal officer, Ms. Godart, met with senior trial attorney

18 Mr. Withopf, and I believe an analyst from the Prosecution team, and the

19 investigative team leader was also present at that meeting.

20 Earlier this week, before her departure, Ms. Godart called me and

21 informed me that I was to set forth on the record a description of what

22 happened at that meeting and also progress with respect to the

23 Prosecution's efforts to fulfil the terms of the Trial Chamber's oral

24 order.

25 I'm relying primarily, Mr. President, on both information provided

1 by Mr. Withopf as well as from a number of other team members who have

2 been tasked with performing these duties. Let me begin going category by

3 category through the issues as set forth in the oral order of 17 May.

4 Category A, number 1, related to information on documents provided by

5 governments to the Office of the Prosecutor, either on their own accord or

6 in response to requests submitted to them by the Office of the Prosecutor.

7 Mr. President, Your Honours, it does not appear to be possible to link all

8 of the documents to specific requests for assistance or what we know as

9 RFAs that were sent to the governments in question. Many of the documents

10 we can link to such requests; however, as Your Honours may be aware,

11 requests for assistance are sent by a number of Prosecution teams

12 involving a number of different trials and investigations. As a result of

13 some of those requests for assistance, information comes into the hands of

14 the Office of the Prosecutor which when we then electronically search.

15 That information may have been provided to a different team pursuant to

16 different requests but which we are not able always to specifically track.

17 We have an internal tracking system that's known as the

18 information index form, which is a form that is completed at the time we

19 receive each and every document. A single form is produced and created

20 every time the Office of the Prosecutor receives a document. Some of

21 these IIFs or information index forms do not provide enough specific

22 information for us to track which request for assistance the document was

23 a response to. Again, some of them -- this is only a smaller number of

24 documents. Most of the documents we are in a position to track how -- or

25 in response to which request for assistance the specific document came

1 from. And I have the team leader currently working on this as part of an

2 overall affidavit, if you will, or statement. And as I've previously

3 indicated, we will be seeking leave to add him to our witness list during

4 the month of June to explain, among other things, this very subject matter

5 to Your Honours.

6 The second category or second item under category A concerns the

7 Trial Chamber's requests that archivists be called. Mr. President, as I

8 previously indicated, Mrs. Benjamin will in fact be in Sarajevo and Zenica

9 next week speaking to the archivists. I should also indicate that -- two

10 things in this respect: Of course, we are dependent to a certain extent

11 upon the Bosnian government to identify the specific archivists. I should

12 also indicate in this regard that the archivists who she will be speaking

13 are not necessarily the same people whose names appear on some of the

14 receipts for documents that were seized or taken from the archives. The

15 simple reason for that, Mr. President, is that when the investigators went

16 into the archives to take documents, they were often accompanied not by

17 the archivists themselves, but by individuals designated by the archivists

18 or by the Bosnian liaison officers assisting and accompanying our

19 investigators as they conducted their searches. So the archivists may or

20 may not be the same people whose names you might see on receipts. But we

21 will take care of all of that in terms of the testimony of the archivists.

22

23 I should also state, Mr. President, in this respect that although

24 I had previously indicated that we might seek leave to call this evidence

25 through Rule 92 bis, that is not the case. We will not do that. We will

1 bring those archivists here to The Hague to testify about the archives.

2 As I indicated yesterday, it is unlikely that those witnesses,

3 however, would be available during the week of the 7th of June and leaving

4 us with a potential gap of any witnesses during that week.

5 With respect to the third item under category A, information

6 relating to material in the possession of the Prosecution that would

7 indicate whether specific documents were actually sent and received, as

8 was explained to Mrs. Godart, in many instances the documents themselves

9 indicate through -- by way of stamps or other markings on the documents

10 whether they were -- whether the documents were actually sent or received.

11 In addition, a sequential analysis may be of great assistance in that

12 respect, and we are currently undertaking such an analysis and will

13 provide that information to the Trial Chamber as quickly as possible.

14 That, however, given the large number of documents and the fact that many

15 of these tasks must be done by the same small group of people who are

16 familiar with the documents means that this information might not be

17 available to the Trial Chamber for several weeks.

18 With respect to item 4, calling a former high-ranking member of

19 the Army of Bosnia-Herzegovina to testify about the drafting of orders,

20 the Office of the Prosecution is in the process of identifying specific

21 individuals who would be able to provide the Trial Chamber with this

22 information. Again, pursuant to the protocols that are in place, if those

23 individuals are currently still serving in the Army of Bosnia-Herzegovina,

24 we are required to request certain steps be taken by the Bosnian

25 government and their permission for us to approach these individuals.

1 Again, this process could result in a delay of several weeks in order to

2 obtain the necessary permission from the Bosnian government and/or even

3 assistance in locating where these witnesses might be, and then allowing

4 us to interview them, make the information available, et cetera.

5 With respect to samples of the accuseds' signatures, we will

6 provide the Trial Chamber with two packets of information with documents

7 that were signed by the accused. In the event the Trial Chamber requires

8 or needs an expert witness to assist in any type of handwriting analysis,

9 we will endeavour to assist Your Honours in locating such an individual to

10 make a comparison, if that is required.

11 With respect to the origin of documents, my understanding was that

12 Mr. Withopf explained to Ms. Godart that as a general rule when we seize

13 or receive documents from governments, there is as a general rule no clear

14 indication from the governments as to how they got the documents; that is,

15 when we take copies of documents from the archives in Sarajevo, that

16 archive does not tell us specifically where the documents came from.

17 Again, I think the archivists may be able to shed some light on this item

18 for the benefit of the Chamber.

19 With respect to the operational logs and war diaries that were the

20 subject of several periodic discussions, the total length of the

21 respective logs and diaries runs to 1.369 pages. About 50 per cent of

22 that material has been translated into a first-draft or first-draft

23 translation in English. We are -- we have made requests for the remaining

24 material to be translated into English and for revisions to be made to the

25 pages which have previously been translated. This obviously will take a

1 significant period of time to render full translations of these 1.369

2 pages. It is -- I hesitate to add potentially a very difficult task due

3 to the fact that they are handwritten logs and many entries on some pages

4 are illegible.

5 With respect to category B and the first item listed thereunder,

6 the Prosecution was ordered to provide a list of witnesses who could

7 authenticate all of the documents. Based on discussions with members of

8 the analytical and investigative team assigned to this case, the best we

9 can do in that respect, Mr. President, is to provide that information by

10 Friday, the 11th of June. The team is working on these documents,

11 document by document. We have three staff members working full time on

12 this task. But again, we do not anticipate that we could provide that

13 information until Friday, June 11th.

14 With respect to translations and missing translations, item 2

15 under category B, based on a memorandum provided by the Trial Chamber's

16 legal officer with respect to missing documents, I can report that there

17 were 52 draft translations listed on that memo. 26 of those 52 we have

18 requested final translations. And 26 of those listed, it appears to us

19 the final translations are available and we are determining whether or not

20 those were actually included in any of the binders or other material

21 previously provided.

22 With respect to, again, a strict examination of missing documents,

23 we are working on that. I also note that part of that order concerned

24 annexes to documents. A number of the annexes are not in the possession

25 of the Prosecution. So we have a document which refers to annexes, but in

1 many instances we simply do not have the annexes referred to in the

2 primary document.

3 With respect to the videotapes, let me briefly say that if we are

4 asked to provide or to view videotapes next week, we will certainly

5 compile a sampling of those videotapes. And obviously, pare down the

6 total amount of material that is included on the videotapes. But we would

7 be in a position to show certain selected excerpts of those videotapes

8 next week if that's what the Trial Chamber would like, in light of the

9 fact that we may not have sufficient witnesses.

10 Concerning telephone intercepts, I anticipate that middle of next

11 week in light of the holiday on Monday, by the middle of next week, I will

12 be able to provide full information on the telephone intercepts, where

13 that material came from, et cetera.

14 Concerning category C, and I'm almost finished, concerning

15 category C, we were ordered to produce the witness Mika Tauro. Mr. Tauro

16 is no longer with the Office of the Prosecutor, but he is available

17 throughout the month of June. And again, we will call him at a time

18 period when we have sufficient witnesses to kind of create a critical mass

19 of witnesses, if you will. I don't anticipate his testimony to be very

20 long at all. Simply pertaining to the charts and diagrams that he drew.

21 With respect to the written order concerning another witness, we

22 will file the documents the Chamber has requested by Wednesday of next

23 week, which is the day 15 that we were asked to file certain documents and

24 materials. And finally, item 3 under category C, the eight binders of

25 noncontested documents and missing documents, again, we are working on

1 that with a goal of completing it as quickly as possible. We have

2 requested full English translations of those documents which were not

3 included in those -- in that material.

4 That is, Mr. President, my understanding of the meeting that took

5 place earlier this week and the steps which we have taken in order to meet

6 our obligation pursuant to the order. I do regret that these things could

7 not have been completed quicker. I assure you that we are endeavouring to

8 meet these deadlines as quickly as possible in order to bring the

9 Prosecution case to a close as expeditiously as possible.

10 JUDGE ANTONETTI: [Interpretation] Thank you. We'll withdraw for a

11 few minutes. Don't move because we have to render our decision on the

12 matter of the videolink conference. As you know, it's a holiday on

13 Monday, and there might be problems concerning plane tickets, et cetera.

14 We'll deliberate about the matter immediately. It won't take long.

15 --- Break taken at 1.49 p.m.

16 [Trial Chamber deliberates]

17 --- On resuming at 1.51 p.m.

18 JUDGE ANTONETTI: [Interpretation] We will now resume. As far as

19 the videolink conference is concerned, the Trial Chamber has taken note of

20 the comments made by the Prosecution and the Defence. And we hereby

21 decide that the hearing of these two witnesses should be postponed. The

22 Trial Chamber will inform you of the date next week. This means that the

23 videolink conference scheduled for Wednesday, Thursday, and Friday will be

24 cancelled. On the other hand, the Prosecution should broadcast the videos

25 as we mentioned a while ago instead of having these witnesses heard by

1 videolink. So this is the decision the Chamber has taken. And the

2 Registrar can take all the necessary steps to cancel what was scheduled

3 for next week.

4 As far as the other issues raised by the Prosecution are

5 concerned, as far as items A, B, and C are concerned, is there anything

6 that Defence counsel would like to state at this point in time. Would the

7 Defence would like to make any comments? The Prosecution has informed us

8 of the work, of the stage of the work, of their work, and they referred to

9 the oral decision of the 17th of May 2004. They are still engaged in

10 their work, and the Prosecution will try to respect the order rendered.

11 Nevertheless, they pointed out that certain difficulties had been

12 encountered. Is there anything that the Defence would like to say? Yes,

13 you may take the floor.

14 MS. RESIDOVIC: [Interpretation] Mr. President, we listened to what

15 the Prosecution had to say. They have taken -- they are taking very

16 serious steps in order to respect all the deadlines and to comply with the

17 Trial Chamber's order. We have nothing we would like to state with regard

18 to this issue, but we would like to be informed in time of the witnesses

19 scheduled so that we can prepare for their cross-examination.

20 JUDGE ANTONETTI: [Interpretation] Thank you. And would the other

21 Defence team like to say anything?

22 MR. DIXON: No, Your Honour. No observations at this stage.

23 Thank you.

24 JUDGE ANTONETTI: [Interpretation] Very well. Mr. Mundis.

25 MR. MUNDIS: Thank you, Mr. President. I will certainly make

1 available both witness scheduling information as well as any new witness

2 statements taken from any of the archivists or other witnesses as quickly

3 as possible. If I could just seek clarification with respect to the

4 videotapes, again, Mr. President, we clearly have a situation where with

5 respect to the videotapes, I just want to be sure that my understanding is

6 the same as the Chamber's. We will be prepared next week to show

7 approximately 12 hours of videotape in those three days if that is what

8 the Trial Chamber would like. We will -- with respect to those portions

9 where there is audio also provide the transcripts of those videotapes.

10 But again, we have time only in those three days to see about -- less than

11 half. So we will with your leave be obviously selective in terms of what

12 we are actually showing. And I simply want it to be clear, that unless

13 you tell me otherwise, Mr. President, I will simply be in a position to

14 show about 12 hours worth of videotapes with transcripts unless I'm

15 ordered to do otherwise.

16 JUDGE ANTONETTI: [Interpretation] Very well. That was the sense

17 of our decision. We think it would be appropriate to broadcast the

18 videotapes. After they have been broadcast, if necessary, the parties can

19 express their positions. The Prosecution and the Defence can state their

20 positions, and then we will draw all the conclusions that can be drawn.

21 You said that it would take 12 hours to broadcast -- to view these videos.

22 That would mean four hours a day. The hearings only last for 4 hours and

23 45 minutes. So this is what we are in a position to do.

24 MR. MUNDIS: Well, again, Mr. President, I can make available six

25 hours of excerpts or eight hours or ten hours or eleven and a half.

1 It's -- I guess that's why I was seeking the guidance. I can make

2 available as much or as little videotape as Your Honours might think. If

3 you tell me you want to have six hours, then I will select what I think

4 are the most relevant six hours out of the twenty-six hours of videotape

5 we have available. If you tell me you want to see three hours, I'll do

6 the same exercise. So, it's really up to Your Honours. Unless you want

7 to see all of the videotapes, which we can't do next week anyway, I will

8 make available as many hours of excerpts from the videotapes as

9 Your Honours would like to see next week.

10 JUDGE ANTONETTI: [Interpretation] Very well. As far as the videos

11 are concerned, is there anything the Defence would like to state at this

12 point in time? Because naturally, the Defence is not going to

13 cross-examine the video. There is no one behind the video. So what is

14 the Defence's position?

15 MR. BOURGON: [Interpretation] Thank you, Mr. President. At this

16 point in time, Mr. President, we would like to know the following: We

17 understand the procedure suggested by the Chamber would be to view the

18 videos, and then engage in a debate. Mr. President, we have already made

19 submissions to the effect that the videos require the presence of a

20 witness in order to be able to authenticate the contents of the video, in

21 order to authenticate what the video represents. If there is a videotape,

22 we would like to know who is speaking, who wrote the text, and what the

23 text represents. Without a witness, Mr. President, we believe that it

24 would be very difficult to reach a decision concerning the admissibility

25 into evidence of a video. And even if the images presented have great

1 probative weight, nevertheless we would still have doubts about their

2 reliability because we wouldn't know when the video was made, by whom,

3 what the conditions were. We wouldn't know whether it's a collage, a

4 written text, an interview. These are questions that would remain

5 unanswered, Mr. President, after viewing the video. Naturally, if the

6 viewing of the video would be part of a procedure leading to another stage

7 which would involve getting other information via 92 bis statements, or

8 via the author of the video. In such a case the circumstances would be

9 different. But in this particular case, just viewing the video without

10 having any access to any other support, it would be difficult for the

11 Trial Chamber to rule on the admissibility of this evidence. Thank you,

12 Mr. President.

13 JUDGE ANTONETTI: [Interpretation] Thank you.

14 Mr. Dixon.

15 MR. DIXON: Thank you, Your Honours. Our understanding of this

16 process is that there is a need to view the videos in order to assess the

17 reliability or authenticity and the probative value to be given to the

18 videos. And that Your Honours do require an opportunity to view the

19 videos and for that to be done in public, and then thereafter to give the

20 parties an opportunity to make submissions to Your Honour on whether the

21 video should indeed be admitted in the first place. And we would, as Your

22 Honours have indicated, make use of the opportunity to make submissions to

23 Your Honours as to why in our view the videos should not be admitted. As

24 Mr. Bourgon said, the first argument is of course a witness is required.

25 But even if a witness is not required, in our view, the content of the

1 videos is not of a sufficient nature to allow them to be admitted. But

2 Your Honours have ordered that that process should take place in public.

3 And that is our understanding of what will happen next week. And at the

4 end of the process, Your Honours will be in a position to decide whether

5 or not the videos should be admitted. And if so, or portions thereof,

6 what weight will ultimately be attached to them. Thank you, Your Honours.

7 JUDGE ANTONETTI: [Interpretation] Very well. We will deliberate

8 again. But for the moment, we are assuming that the videos will be

9 broadcast next week. If by Tuesday we have taken a decision that will

10 clarify the issue, we will inform you of our decision.

11 Thank you. I would like to apologise to the interpreters for

12 having worked a little longer than usual, and I will see everyone again on

13 Tuesday at 2.15.

14 --- Whereupon the hearing adjourned at 2.02 p.m.,

15 to be reconvened on Tuesday, the 1st day of June,

16 2004, at 2.15 p.m.

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