1 Friday, 28
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 9.05 a.m.
5 THE REGISTRAR: Good morning, Your Honours.
6 Case number IT-95-14/2-T, the Prosecutor versus Dario
7 Kordic and Mario Cerkez.
8 MR. NICE: Your Honour, before we turn to the
9 expert witness, there's one other administrative matter
10 that I should deal with. It relates to the subpoena
11 witness who was due to attend this week. You said
12 you'd like the material in writing. I've checked with
13 your Registrar, and the position is that the original
14 report was filed and the material letter for this
15 witness, which is a letter dated the 31st of December
16 of 1999, is with your Registrar and will be copied and
17 made available to you today, and I have no material
18 beyond what is contained in that letter and in the
19 earlier reports touching on that witness for you to act
20 upon, and I'd ask you to act upon that.
21 JUDGE MAY: Yes. Well, the Registry has
22 heard that.
23 MR. NICE: As to the expert witness, as I
24 indicated yesterday, I'll let Ms. Somers deal with all
25 matters of detail that may arise, although the thing is
1 fully argued. I'd simply say these things: I think by
2 way of general introduction, he was notified as a
3 witness in the early witness list. His summary was
4 served, and when his report was served, there was
5 simply a notification that they desired to
6 cross-examine him. It may well be, although we've
7 responded to their skeleton argument in detail out of
8 courtesy, it's really far too early. This is a proper
9 case for the witness, who is plainly an expert and a
10 much respected man, who wrote his book on ethnic
11 cleansing in 1995, I think. He might well be a witness
12 in other cases.
13 It's far too early really to think about his
14 expertise. It's probably a matter for him to come here
15 and to be cross-examined, which is what would normally
17 The court will, I think, have already read
18 his report and will know that his evidence in chief
19 certainly wouldn't take very long, because it would be
20 an question of adopting his reports, with some
22 But that's all I would say by way of general
23 introduction. Ms. Somers is available to deal with any
24 queries should you want them to be dealt with.
25 JUDGE MAY: No. It's not a matter of detail;
1 it's a matter of principle, on which I will be grateful
2 for your assistance, speaking for myself, and that is
3 to the extent to which those of us from common law
4 backgrounds call or know as the ultimate issue rule.
5 To what extent is this witness, in fact, drawing the
6 inferences which are for us to draw?
7 I have in mind a conclusion, which is
8 referred to merely as an example. I'm looking,
9 actually, at the Defence version, which is the one in
10 colour, since that helps one lay their argument.
11 If you have it at page 19. If you have
13 MR. NICE: Yes, I have that.
14 JUDGE MAY: "Based on the evidence adduced
15 above, one can conclude that Kordic was the supreme HVO
16 and HDZ official in Central Bosnia, and he displayed
17 authority and power in both the traditionally military
18 and civilian areas of authority and responsibility.
19 This combination would have enabled him to control
20 significant events. Further, it can be concluded that
21 he acted in pursuit of concrete, previously planned
23 One can conclude that he encouraged a policy
24 of confrontation with the Bosniak community, a pattern
25 of activity in accord with his verbal statements,
1 policy preparations and orders to subordinates.
2 Given the range of his implied and actual
3 powers, the reasonable conclusion, based on the
4 available evidence, is that he would have been aware of
5 such activities, and his degree of involvement and span
6 of command responsibility extended over all significant
7 armed elements and their major actions."
8 Now, isn't that precisely what we have to
9 determine, whether that is so or not?
10 MR. NICE: Those final conclusions are indeed
11 issues that the Chamber will have to consider. They
12 are, in reality, an overall conclusion, because the
13 rest of his report leading up to that is expert
14 conclusion supported generally by the footnotes. In
15 fact, one of the characteristics of his report is that
16 the first short part of the report is substantially
17 conclusions; matters of pattern and similar topics are
18 dealt with, supported by the footnote material to which
19 complaint is made by the Defence. Then he comes to the
20 overall conclusion at the end.
21 Now, on whether you're allowed, these days,
22 to have an expert giving an opinion on the final issue,
23 we've addressed that argument or that topic in our
24 skeleton, as the Chamber will recall, and the present
25 position is that, of course, you are allowed, subject
1 to certain specific exceptions in some jurisdictions --
2 I think it's at paragraph 9 -- you are allowed to have
3 experts offering opinion based -- opinion on the final
5 The extent to which you do and the extent to
6 which you're affected by that is ultimately a matter
7 for the Chamber, but certainly that is now the position
8 and --
9 JUDGE MAY: Well, you say that, but I
10 question whether that really is the position. The fact
11 that it happens is usually overlooked, I suspect, but
12 I'm by no means satisfied that that is the normal
14 The other thing is that -- does it help us?
15 These are the matters that we have to decide. This is,
16 in summary, your case.
17 MR. NICE: The very last paragraph
18 incorporates propositions that are indeed in part our
19 case, but Your Honour will want to be looking at the
20 supporting conclusions, which are elements within it
21 and elements that go to support it, and they are also
22 outside the -- they are the principle matters that are
23 outside the experience of the Chamber and upon which
24 expertise is vital and helpful. And in his survey of
25 and marshalling of the material and then applying his
1 analysis to reach the conclusions that precede the
2 final conclusion, he is doing the work of an expert and
3 not expressing final conclusions.
4 And so the Chamber is left in this position,
5 in our respectful submission, that the material leading
6 up to the final conclusions is material that must be
7 admitted and attended to, and the Chamber can decide
8 for itself the extent to which it wishes to attend to
9 those very last conclusions that Your Honour has read
10 out to me. We would invite you to say that it is
11 permissible and absolutely proper to have them in mind
12 in much the same way as juries and, indeed, judges,
13 trying cases alone, regularly now have opinions on the
14 final issue in mind in either many or nearly all
15 jurisdictions, always free to say to themselves, "But
16 an expert is only a witness and he's a witness I can
17 accept, accept in part, attend to to confirm my own
18 provisional judgements, attend to to check where I find
19 myself in disagreement with what the witness says, or
20 to reject totally." And that, of course, is something
21 easier done, it may be thought, by professional judges
22 than by jurors, but in fact these days it is done by
24 Accordingly, the answer to Your Honour's
25 question is, yes, you may indeed attend and it would be
1 proper to have before you those final conclusions, but
2 it's the material that leads up to them that is perhaps
3 much more important and much more valuable to you.
4 If Your Honour would give me just one minute,
5 please, because I want to ask just one question of one
6 of my colleagues.
7 [Trial Chamber confers]
8 JUDGE MAY: Yes, Mr. Nice.
9 MR. NICE: Your Honour, I was just reminding
10 myself, because when you're looking for something in a
11 document, you never find it. I said it's paragraph 9.
12 It picks up at 10 on the question of the final issue,
13 and then it's 15 and 16 that you'll find the citations
14 for the final issue. Fundamentally, and unless
15 Ms. Somers wants to draw to my attention anything else,
16 it's all the work that precedes that that is of
17 critical value to the Chamber.
18 And if I may respectfully say so, to build on
19 what I said at the beginning about this being, in a
20 sense, quite a premature matter to raise at this stage
21 and a matter properly raised with the witness when he's
22 here, this is a case where the witness can attend,
23 explain again his methodology, if that's in issue, and
24 his expertise, and the Chamber can then decide how far
25 through his report it wishes to hear from him in
1 amplification or justification of his report. And if
2 it chose to stop short at all or some of the last
3 conclusions, that would be for the Chamber, but it's
4 proper to be dealt with with the witness.
5 The point is made by Ms. Somers, and I'm
6 grateful to her for it, building on what I said about
7 the potential of expert evidence on the final issue to
8 assist triers of fact in all the ways I outlined; with
9 that in mind, we've called the witness towards the end
10 or very nearly at the end of the case so that, indeed,
11 ways in which it matches and ways in which it doesn't
12 match, either provisional judgements or other evidence,
13 can be of maximum value to you. And that, indeed, is
14 how an expert witness in most litigation is of value,
15 because he typically comes at the end of a lot of other
16 evidence and it's possible to use him as a check, one
17 way or another, and especially when he's formed an
18 opinion at an earlier stage and so can't be said to
19 have been in any sense tailoring his evidence to what
20 comes in the course of the trial.
21 JUDGE MAY: If he gives evidence about the
22 command responsibility, which is probably a mixed issue
23 of fact and law, we would, in our judgement, presumably
24 have to accept or reject it. But it doesn't matter
25 what he says about command responsibility. That's our
2 MR. NICE: Yes. That's your decision, but
3 there is absolutely no prohibition against your
4 attending to the expert opinion of someone else on the
5 topic, and indeed throughout the evidence that you've
6 been hearing, witnesses have effectively been giving
7 evidence on that topic, either direct evidence, where
8 they speak of some direct command --
9 JUDGE MAY: Yes, of course, but this witness
10 saw nothing. All he did was gather together the
11 materials and come to an opinion.
12 MR. NICE: But he gathers together the
13 material with expertise that is not available to us.
14 This is a recognised and respected area of
15 expertise to which he's devoted some part of his life,
16 entirely neutrally gathering materials that aren't
17 available to us in their broad range and knowing where
18 to look, and that marks him out and it gives him a
19 particular insight and a particular value.
20 If I may respectfully say so, I think that
21 the traditional view well known to common lawyers of
22 concern about the expert expressing a final view has
23 been disappearing for years. I think its first noted
24 disappearance was probably in criminal cases with the
25 issues of diminished responsibility, and for many years
1 judges were anxious as to whether they could or should
2 allow the psychiatrist to express the final view or
3 not. That's now, I think, all clear. They can. And
4 as that was changing in criminal cases, of course, the
5 position was developing in civil cases as well and in
6 other jurisdictions.
7 JUDGE MAY: That is a particular form of
8 expertise, of course.
9 MR. NICE: Yes.
10 JUDGE MAY: But we could debate this -- yes.
11 JUDGE BENNOUNA: [Interpretation] Mr. Nice,
12 outside this business of general conclusions, the
13 "ultimate issue question," quote/unquote, in the
14 expert report and what you consider to be expertise:
15 We call the witness to court; are there elements that
16 we're not familiar with and which Mr. Cigar may bring
17 to us through his expertise? That is what is
18 important, if we leave aside the general conclusions,
19 which are up to the Chamber, of course, and regarding
20 which the opinion of this expert will not be of great
22 MR. NICE: The answer to Your Honour's
23 question is, yes, that there are expert elements, as
24 I've said, and indeed as we've attempted to set out in
25 the argument we've presented. When I say "attempted,"
1 it's for this reason: We haven't slavishly gone to
2 Professor Cigar to ask him to justify, through our
3 words to you, that he is an expert and the way in which
4 he is an expert, given that this issue is raised. That
5 would be, perhaps, a somewhat unfortunate thing for us
6 to do.
7 We have established the areas of particular
8 expertise, and they are set out in the skeleton. We've
9 checked with him that it is appropriate for us to lay
10 those matters before you, and he confirms that it is,
11 in particular, the methodology of this particular
12 expert and expertise. And it would, in our respectful
13 submission, be quite wrong to exclude him on grounds
14 that he isn't an expert without seeing him and
15 attending to him. We say it's manifest that he is, not
16 only by his access to material and, indeed, by his
17 familiarity with matters of language and so on, but for
18 all the other reasons that we've set out in the
20 It may be on this topic that Ms. Somers could
21 be permitted a few words if it's troubling you, because
22 she's looked at this with more detail and indeed she's
23 been actively concerned in the preparation of this
24 witness. But I must emphasise that this witness,
25 although he appears now only in the Kordic case, may be
1 the sort of witness who is particularly valuable or
2 could be particularly valuable in these cases generally
3 and this particular witness. Therefore, exclusion in
4 advance and on paper would be, in our respectful
5 submission, quite wrong. He must be given a chance to
6 explain and to confirm what we say about the expertise
7 he has.
8 It's all -- not all too easy. It is easy
9 sometimes to think that what one reads in an expert
10 report is the mere collation of material. But indeed,
11 and we know that in these trials, the collation of
12 material by witnesses has been accepted as a proper
13 form of evidence, but we don't, and we set out some
14 reference to that in one of the much earlier cases.
15 But we don't seem to rely on that heavily for the
16 introduction of Professor Cigar's report, because we
17 say he's a proper expert. Indeed he is an expert -- I
18 don't think there's any doubt about that -- and a much
19 respected one, whose material will be able to assist
20 you, particularly in relation to patterns of
21 consistency and behaviour broadly, sourcing material
22 that simply isn't available to us.
23 But can Ms. Somers deal with this particular
24 part rather than her flood me with materials, and she
25 can respond to Your Honour's question.
1 JUDGE MAY: Judge Robinson has a point and
2 then we'll hear Ms. Somers briefly, please.
3 JUDGE ROBINSON: Mr. Nice, following upon the
4 President's concern about the question of the final
5 issue, this case is largely built on inferences. Isn't
6 that so?
7 MR. NICE: It is significantly built on
8 inferences, as I explained at the beginning. Indeed,
9 at the beginning, never knowing how much direct
10 evidence I would have, I made it quite plain that the
11 case could be made out completely on inferences. In
12 the event, as evidence has become available, there's
13 more direct evidence than I forecast, but, yes, it is
14 significantly more direct evidence of commands and so
15 on. But, nevertheless, Your Honour is quite right.
16 JUDGE ROBINSON: And I think the question of
17 command responsibility will be resolved substantially
18 on the basis of inferences which the Tribunal will be
19 able to draw from facts which have been testified to
20 during the hearing.
21 I think that the concern which is being
22 expressed is that ultimately it is for the Tribunal to
23 draw these inferences from the facts which we hear from
24 the live witnesses and other testimony, and to what
25 extent are we going to be helped by having a witness
1 give his view as to that ultimate question.
2 I think this is what concerns us, because
3 ultimately that is a matter which we have to decide on
4 the basis of the facts.
5 He's not coming to testify as to any
6 particular facts. He's coming to give his view as to
7 the level of responsibility of a particular accused
8 based on matters which have come to his knowledge
9 through, admittedly, as you say, his expertise, on the
10 basis of his expertise. But essentially that is a
11 matter for us to decide, and to what extent are we
12 going to be helped by it?
13 For example, does it advance your case
14 significantly more if you were able to -- if you, in
15 your submissions, made a presentation arguing that you
16 have presented sufficient facts which allow us to draw
17 inferences as to command responsibility? Does it
18 advance your case any more if you are to do that than
19 to have this witness come and give his view as to the
20 level of responsibility based on his expertise? I'm
21 not sure myself that it advances your case
23 MR. NICE: First, it's helpful to have your
24 concerns so that I can address them. To some degree
25 I'll be repeating what I said, but I can recast what I
1 said in a way that I hope is helpful, and I'll give you
2 an analogy as well.
3 The answer to Your Honour's question is, yes,
4 it indeed can help you and can help you significantly.
5 And before I explain again why, can we underline one
6 feature of the expert, which is sometimes overlooked
7 when played out before Judges, is the adversarial
8 system. The adversarial system is thought to involve
9 selection and even strategic or tactical selection of
10 material. It's not the case with this Prosecution, but
11 it's often thought that's what happens. But even where
12 there is any tactical or strategic selection of fact
13 witnesses, and there hasn't been, even where there is,
14 the witness comes as an independent body.
15 Indeed, in England, and I expect elsewhere,
16 there is a growing practice or requirement that the
17 expert is actually the Court's expert. In some
18 settings now, I know in England, the Court appoints an
19 expert so that he comes absolutely neutrally. But
20 that's only a reflection of what his position has
21 always been.
22 So when Your Honour says, "Is it not for us,
23 the Judges, to draw the inferences from the raw facts?"
24 the answer to that question is no. It is the Court's
25 duty to draw the inferences or to make the findings
1 from all the evidence. The evidence includes facts
2 from which inferences are drawn, but it also includes
3 relevant expertise in the form of opinion to which it
4 can attend.
5 And I now go back to the way I presented it
6 at the beginning. Given that the material before the
7 Court is facts in the form of evidence of facts and
8 opinion, each of which we are entitled to lay before
9 you, the Chamber then has the advantage, with its
10 expert, of remembering that he is independent and not
11 partial. And indeed in this case, as we know, he's
12 published in various ways, well before this trial was
13 started or maybe even conceived of; conceived of, I
14 think. So he's a man whose views are of an integrity
15 and long-standing integrity.
16 So the Chamber is able then to attend to his
17 expertise and expert opinion either to support, to
18 check, or, indeed, as I've already said, to reject.
19 There's a whole range of approaches to an expert.
20 Is it helpful? Of course it is. Let us go
21 back to -- I know a particular example, remote from the
22 facts of this case but, nevertheless, the helpful one,
23 for diminished responsibility. Here it may be that I'm
24 speaking about a particular corner of United
25 Kingdom-based law that will not be immediately known to
1 His Honour Judge Bennouna, but if we go back to the
2 example of diminished responsibility, the Chamber will
3 know or recall that the diminished responsibility test,
4 which I think has some reflection here as well, is a
5 test little known to psychiatrists. It was a test put
6 together by lawyers to serve whatever the then
7 practical requirements of the legislature were, but
8 it's a test which, nevertheless, incorporates
9 psychiatric or quasi-psychiatric language.
10 The test is one that you might think a layman
11 or a juror could deal with himself, especially given
12 the fact that the terminology doesn't really fit within
13 the lexicon of the expert witness. And of course when
14 the jury is asked the questions on diminished
15 responsibility, it's asked to attend to all the
16 evidence. But typically, if not in all cases, it is
17 assisted by experts who come along and who look at the
18 same material, and sometimes, of course, additional
19 material in the form of psychiatric examinations. They
20 build on the material, ordinary and expert, and they
21 offer a conclusion. And the Judge says to the jury,
22 "Accept it, reject it, deal with it as you will, but
23 it's part of the evidence in the case."
24 JUDGE ROBINSON: As the Presiding Judge says,
25 that is a very particular case of legislation which
1 sets out a particular definition of diminished
2 responsibility. That's a very particular case. I
3 don't think it derogates from the general principle.
4 MR. NICE: In my respectful submission, it
5 may be a particular case, but neither does it in any
6 sense diminish the value of the approach, because the
7 approach there is -- and one can think of lots of other
8 examples where experts are typically led in evidence.
9 I can think of plenty of other cases where tests have
10 to be applied that might be in part legal, in part
11 factual. One can think of, I suppose, almost endless
12 examples, if one has the time, of factory accidents,
13 matters of that sort, where there are tests to be
14 applied either following on from rules and regulations
15 or from Statute or, alternatively, under the common
16 law, where there is a straightforward test to be
17 applied and in respect of which an expert will be
18 called, the expert opinion being part of the material
19 upon which the Tribunal of fact and law decides but not
20 being determinative of it.
21 Those experts, typically, if not always these
22 days, express a view on the final issue. Yes, there
23 was a breach. Yes, there was negligence. Those issues
24 are very close to issues of what was the nature of the
25 command structure, very close. And in those cases,
1 Judges do not deprive themselves of the advantage that
2 such experts can give them. At the end of the
3 exercise, they use the expert to check their
4 provisional judgement, to bolster their judgement, or
5 they reject it. But as professional Judges -- and
6 these are, of course, in England, always cases tried by
7 Judges alone -- they never have any difficulty in
8 dealing with the material. And we would invite Your
9 Honours to say that that is the approach that should be
10 taken here, and that it does actually fall fairly and
11 squarely within all of the other sorts of cases where
12 experts are typically admitted.
13 If that answers -- I hope it answers; at
14 least it deals with His Honour Judge Robinson's
15 questions. Then back to His Honour Judge Bennouna's
16 question. It may be that Ms. Somers can help you with
17 a few detailed matters.
18 JUDGE MAY: Yes.
19 MS. SOMERS: The earlier expert witnesses
20 were able to place for the chamber the facts and the
21 times that are at issue in this indictment in a
22 historical context and in a socio-cultural context.
23 They stopped where their areas of expertise stopped.
24 The context at which we must make sure is of record
25 before this Chamber is the political and military
1 context, which no one fact witness and indeed the other
2 experts could not necessarily or could of necessity had
3 to stop where their own natural limitations took over.
4 Because Dr. Cigar is, through his
5 professional expertise, able to, having collected,
6 assess, synthesise and then conclude in a very neutral
7 manner, roles of the different entities, all of which
8 had events happening simultaneously, and because he
9 looks at all the relationships of what's going on with
10 the Serbs, what's going on with the Bosniaks, what is
11 going on with the Croats, both within Croatia and
12 within Bosnia at any given moment during the time span
13 that this Chamber must bear in mind, it is extremely
14 helpful to know what he can show you with the other
15 relating events, because facts can be looked at
16 differently depending on context. It is essential and
17 must be presented to this Court the context of the
19 It is exactly that type of examination which
20 a political/military intelligence analyst, particularly
21 with the background of Dr. Cigar, brings to this
22 Court. The range of sources evidenced in the extensive
23 footnotes, which are, of course, only a fraction of
24 what this individual can bring to this Chamber,
25 indicates probably the most unique referencing of the
1 Croatian media, and indeed of the media of the former
2 Yugoslavia, that has ever been brought before this
3 Tribunal. It is critical to get an individual who is
4 trained to know the value of sources to come before the
5 Tribunal and get that information in. The ability to
6 look at events over a long period of time and find
7 patterns so as to be able to determine whether things
8 were random or policy is essential to the indictment.
9 Again, no one fact witness and perhaps even
10 all fact witnesses, even taken together, because of
11 their inherent limitations or the time during which
12 they served in theatre, can bring this.
13 The type of examination done by Dr. Cigar is
14 specifically geared toward presenting the context with
15 the fabric of what it means to be a political figure,
16 what it means to be a military figure in that political
17 and military structure. The issue has come up
18 repeatedly, as Mr. Nice has indicated, and to have the
19 correct person to address it is the thrust of our
20 bringing Dr. Cigar in.
21 Again, this conflict has presented facts and
22 information which are susceptible of many
23 interpretations, and all of us who have attempted to
24 keep current and understand them still have limitations
25 of either language or of just inability to scan or
1 peruse the entire span of this vast field of
2 information. As Mr. Nice rightly pointed out, it is
3 Dr. Cigar's responsibility to go to these sources which
4 address these issues that must be made part of the
5 record. There is only a benefit to be derived.
6 Rejection of certain findings is certainly
7 within the sound discretion of the Chamber. But to
8 complete and to show how things occurred, that they did
9 not occur in a vacuum but are susceptible of a
10 conclusion that there was policy, systematic, is
11 absolutely critical, and this is the type of witness,
12 clearly, who brings that information to the Chamber.
13 If there are any specific questions, I would
14 be very happy to address them.
15 JUDGE MAY: Thank you.
16 MR. NICE: I've got nothing else to say at
17 this stage, save to say that Mr. Guariglia reminds me
18 that in paragraph 10 there is reference to the Tadic
19 Trial Chamber and a witness who, I think, expressed a
20 view on the final question.
21 JUDGE MAY: I'm not sure that that's right.
22 I know who that witness was --
23 MR. NICE: Yes.
24 JUDGE MAY: -- because she gave evidence in
25 Kovacevic. She was a human rights historian or
1 compiler of a report in Prijedor, and I think that is
2 what she gave evidence about. I suspect that is what
3 she gave evidence about.
4 MR. NICE: The objection to her evidence, the
5 objection being overruled, was, indeed, as set out,
6 that her opinions were on matters that it was the
7 judgement of the Tribunal to supply, and the Tribunal
8 made the conclusion that, nevertheless, her evidence
9 should properly be admitted. I refer you to that for
10 your assistance.
11 JUDGE MAY: Thank you.
12 Yes, Mr. Stein.
13 MR. STEIN: Thank you, sir.
14 Let me start by debunking a myth. First,
15 Dr. Cigar is neither neutral nor an expert. In 1993,
16 having opined that Mr. Kordic was an inveterate
17 Muslim-hater, he doesn't come to this Court without his
18 sense of bias about him, and indeed he started his
19 project here for the Tribunal in 1996, having made that
20 statement -- I believe it's on page 134 of his book --
21 public. Moreover, he offers no expertise that the
22 Court doesn't already have.
23 His PhD, or Doctor of Philosophy, is in
24 Middle Eastern history and Arabic from the University
25 of Oxford. His thesis was Mohammed L. Khadar's Nashr
1 al Mathani, The Chronicles, which is a thesis about a
2 Moroccan historian, born on 14 April 1712, who
3 chronicled the struggle of various sultans. His
4 undergraduate degree is in French. He has a Masters,
5 of course, in international affairs and his M.S. in
6 strategic intelligence is in Soviet Union areas
8 The long and short of all this is I do
9 challenge what my opposition has said, and the bottom
10 line is he is no more expert than the Bench. His
11 graduate degrees versus our law training and our
12 background are identical, and he clearly, and Your
13 Honours clearly understand, he invades on your
14 province. He is the fourth judge. He is the
15 Prosecutor's closing argument, and he tries to make the
16 case for the Prosecution.
17 Indeed, I'm prepared, absent a showing of his
18 bias, which will take 15 minutes, to waive
19 cross-examination altogether if the Prosecution will
20 waive its closing statement, because that is what
21 Dr. Cigar is doing, and he's doing that in a fashion
22 that is most insidious.
23 I will pause only to mention that the
24 colour-charted examples that we gave you clearly
25 indicate what he does and doesn't do. His work is an
1 analysis of press accounts, OTP witness statements,
2 documents, videos and audiotapes, and other Tribunal
3 cases, and the colour-coding, of course, in the
4 skeleton argument is clear on that. It may not be as
5 clear relative to the footnotes. Our colour-coding
6 cites the various levels of hearsay. The reds show
7 one, two, or three levels; greens, one, two, or three
8 levels or evidence not in the record; and the blues and
9 dark blues show other levels of unreliability, and that
10 just may not be apparent.
11 The Prosecution concedes, in its response and
12 in its evidence or statements before the Tribunal
13 today, as follows: The issues before the Court are
14 complex and susceptible of obfuscation; page 4 of their
15 pleading. Experts trained to look at often ambiguous
16 facts, in light of their specialised knowledge and
17 training, present their analysis to the Court.
18 Paragraph 4. The exercise, in and of itself, benefits
19 the Tribunal by looking at facts and events in a manner
20 which otherwise may not, through no shortcomings of
21 their own, be apparent. And then finally at page 5,
22 paragraph 6, large amounts of evidence, which in one
23 context may appear to indicate certain things and in
24 another context brought to light by the expert's
25 training and experience, may indicate other things.
1 Now, what that all says is crystal clear.
2 The evidence on the record before the Court --
3 THE INTERPRETER: Could counsel slow down,
5 MR. STEIN: The evidence before the Court is
6 ambiguous. It is susceptible to many interpretations,
7 but the only interpretations that count are yours.
8 The Prosecution has decided to hire an expert
9 to review not the record in this case but a shadow
10 case. He has reviewed not the transcript which is
11 available to him, he has not looked at the Defence
12 cross-examination, nor has he heard the Defence side.
13 He has instead looked at a variety of newspaper
14 documents, things supplied to him by the Tribunal from
15 witnesses, some of whom have appeared and some of whom
16 have not, and he has made his conclusion. The worst
17 part about his conclusion is he has made it -- and the
18 Prosecution mercifully conceded this in its papers --
19 he has made his conclusion having decided the
20 credibility and reliability of witness statements,
21 reports in news journals, accepted some and rejected
22 others. Indeed, on page 5 of their pleading, they
23 concede Cigar's report contains not only news articles
24 but a number of, quote, "open sources which have been
25 analysed with due regard to their reliability." "Open
1 sources" is apparently a word in the spy community of
2 which he comes from. He means statements of
3 witnesses. But the buzz words in this case is "with
4 regard to their reliability."
5 If I may be facetious, Judge Cigar has
6 decided who is reliable and who isn't, taking that
7 entirely from your hands, and presents to you his
8 analysis of the shadow case which I suggest.
9 Now, the Prosecution has suggested that we
10 need Dr. Cigar because he provides information
11 ordinarily outside the experience and knowledge of the
12 judges of the facts. Because you are professional
13 judges, experienced in international law, he adds
14 nothing to the mix. Indeed, at the close of the
15 evidence, although I do not know your process, I don't
16 know whether you meet jointly or individually, but you
17 have the evidence in front of you and you analyse it.
18 You look at what you believe and what you don't
19 believe, what was credible and what was not credible.
20 You look at the circumstantial evidence, the direct
21 evidence, and ultimately reach your conclusions.
22 Dr. Cigar invades that province, because he takes the
23 circumstantial case and he gives you his opinion on
25 And the law, I believe, is clear that in
1 order to sustain a conviction beyond a reasonable
2 doubt, the Court, if it is to use circumstantial
3 evidence, must conclude that those presumed facts must
4 necessarily flow beyond a reasonable doubt to make the
5 proven facts. Cigar's insidious report, analysing a
6 case not before the Tribunal, essentially embarks on a
7 process of undermining the sanctity of the Court with
8 regard to that and injecting into the record, frankly,
10 His report is nothing more or less than the
11 summary, if you will, already ruled on in the Tulica
12 dossier. His report, with regard to the big picture,
13 is the same as the investigator's report with regard to
14 Tulica. And like the investigator's report with
15 Tulica, he takes those witness statements at face
16 value. He doesn't look at the cross-examination, and
17 I've already mentioned that.
18 Now, with regard to his method, and this
19 becomes important -- I won't discurse on the law, but
20 for two minutes I will discurse, if I may -- the method
21 that he employs is unintelligible and it is conceded to
22 be unintelligible by the opposition. Page 11,
23 paragraph 15, Dr. Cigar brings a methodology
24 of synthesis and deduction distinct to those who are
25 expert in this discipline. Then they go on to say at
1 page 9, paragraph 12, that this kind of discipline is
2 taught with a high degree of commonality between
3 courses. And at page 12, they concede, "The
4 intelligence process cannot be reduced to a
5 mathematical formula."
6 In short, Dr. Cigar cannot tell you his
7 method, except, "I look at it, I induce, I think
8 through it, I compare, I contrast. We learn this in
9 various schools. Indeed, there are various courses on
10 this. I may even teach those courses." That's nothing
11 that the Court can't do on its own.
12 JUDGE MAY: That, surely, is a matter for
13 cross-examination, and if there are matters about the
14 expertise, about the materials upon which the opinion
15 is based, about the method with which the witness came
16 to his conclusions, all that is the subject of
17 cross-examination and ultimately a question of weight,
18 isn't it?
19 MR. STEIN: The answer, sir, is respectfully
20 "no". The body of law on which Ms. Somers relies in
21 her work and which I, to some degree, do is the
22 respectful thought of our United States Supreme Court,
23 where they talk about junk science. That's the Daubert
24 opinion that Ms. Somers cites in her pleading. Daubert
25 essentially said that the courts are the gatekeepers of
1 that which should be kept from the triers of facts, the
2 jury, and make preliminary screenings. I think that's
3 a proper role. Everybody agreed with that. But to the
4 extent that they do was then set forth in an opinion
5 Ms. Somers ignored, and that is the March 1999 holding
6 in Kumho Tire versus Carmichael, and the reason it's
7 significant is because Justice Breyer of the Court, a
8 noted Harvard law professor before he took the Bench,
9 opined again on this very issue of what should be the
10 kinds of things that the trier of facts hear. Now, of
11 course, they make the dichotomy all the time between
12 jury and judge, the judge screening appropriate
13 expertise so the jury does or does not hear it, but in
14 this particular case there is truly no difference, and
15 in fact it goes even more, because you, as experienced
16 professional judges, don't need this kind of help.
17 So the modern view set out in the Kumho Tire
18 is that the Court should be very reluctant to introduce
19 junk science, expertise that doesn't show a methodology
20 that is capable of articulation, repetition, analysis
21 and peer review, and the role of the Court is to keep,
22 essentially, evidence which looks tantalising, and may
23 in fact be tantalising, out from the triers of fact
24 unless it is reliable and probative, and in this
25 particular case, since the method -- and that's what
1 I'm focusing on -- is not apparent, it's just
2 intelligence-gathering of open-source material, in
3 short it's one man's opinion.
4 Not only is it one man's opinion, Your
5 Honours, but the reason why -- and ultimately I'm going
6 to conclude on these two thoughts -- the reason why
7 it's so insidious and should not be injected into the
8 record is it's another death by a thousand cuts.
9 We've had tons of military witnesses in this
10 case. They've opined, based on on-the-ground
11 experiences, about a variety of issues, but they
12 haven't gone -- and some have gone so far on issues of
13 command of control and responsibility to give their
14 opinion. They were there. Appropriate.
15 This is someone who wasn't there, who is
16 taking evidence not before the Court, heard out of the
17 presence of Mr. Kordic, and opining on what the
18 conclusion is. And that's where I'd like to leave, not
19 yet discussed, the confrontation rights, because Judge
20 Cigar, and I am being facetious, Judge Cigar
21 essentially is judge and trier of fact of witnesses not
22 before the Tribunal, who you have not heard, and nor
23 has Mr. Kordic had an opportunity to confront. He
24 doesn't look at expert material, scholarly documents,
25 treatises. He's not like the other experts in this
1 case who at least made an attempt to read and review
2 the scholarly literature on this subject. He's
3 reviewed nothing but factual material.
4 JUDGE ROBINSON: Mr. Stein, are you saying
5 any of these three things or all of them; first, that
6 Mr. Cigar is not an expert? That would be a
7 preliminary issue. That would raise a question of
8 screening. If you are correct that he's not an expert,
9 then we shouldn't hear him. Secondly, are you saying
10 he's an expert but an expert who has gone about his
11 business in a poor fashion? That's not a screening
12 matter. That could be addressed in cross-examination.
13 Thirdly, are you saying that the subject matter on
14 which he is invited to testify is not one that is
15 proper for expertise? And that brings to mind the
16 issue raised initially by the Presiding Judge as to the
17 ultimate issue. That would also be a screening
19 MR. STEIN: Let me take them in order.
20 The only reason I challenge in this form, at
21 least, the qualifications of the expert is just because
22 apparently, unless you speak up, you're deemed to have
23 consented or admitted or waived. It is absolutely true
24 that the issue of whether he is an expert or not is a
25 screening matter. I only raise it because I didn't
1 want to be held silent.
2 The second question is his methodology. That
3 is where the rubber meets the road in the United
4 States, because if the expert's methodology is
5 inappropriate, the jury or trier of fact will never
6 hear it, and there are pre-trial hearings just like
8 But the third and independent and separate
9 point is, yes, when all is said and done, and I
10 encourage you to read the report, it tells you how you
11 should rule and, consequently, is of no assistance to
12 the Chamber and isn't, therefore, a preliminary
13 matter -- it isn't an assessment matter, because the
14 report is going to be entered into evidence, it is his
15 opinion, he will be briefly examined for a few minutes
16 by the Prosecutor, and that's what the evidence will
18 So I guess those are long answers to your
19 questions. I hope I have answered them. But the
20 reason we raise these things preliminarily is because,
21 frankly, if this kind of process is allowed to go on,
22 then we didn't need the first ten months of the trial.
23 We could have just put Dr. Cigar on the stand. He's
24 looked at a lot of literature out there, and you can
25 rely on him, and that's the end of the case.
1 If I hear right, Mr. Nice is essentially
2 saying, "Consider the ramifications of this for other
3 cases, because Dr. Cigar has been signed up for other
4 cases." I don't think that's an appropriate argument.
5 That's the floodgate argument, "You have to rule in our
6 favour or the floodgates will open up or close."
7 So Your Honours clearly -- and I was tempted
8 not to use the 45 minutes allotted, but I resisted the
9 temptation -- Your Honours clearly understand the nub
10 of the issue is the invasion of Your Honours'
11 particular province by a man who offers nothing more
12 than you already have.
13 Because I'm enormously sensitive, I like to
14 think, by training and bias to the issues of
15 confrontation, I raise that as well, because I think
16 that's important. So that's all I have to say on
18 Frankly, other than pointing out one more
19 time that Dr. Cigar's report is hearsay upon hearsay
20 upon hearsay, unreliability upon unreliability upon
21 unreliability, and those things are set out perfectly
22 adequately in our papers, I will say no more, unless
23 the Court has any further questions.
24 JUDGE MAY: Thank you, Mr. Stein.
25 MR. STEIN: Thank you, sir.
1 MR. NICE: May I reply just on a couple of
2 points, please.
3 First of all, most of the points made by
4 Mr. Stein really are matters for cross-examination.
5 The challenges to expertise, the assertion of bias and
6 matters are of that sort are not matters that the
7 Chamber can deal with today.
8 His credentials are set out in his report,
9 and indeed further on page 11 of our argument. But
10 insofar as they are raised today, it is, as I venture
11 to say right at the beginning, simply too early.
12 The complaint about sources and about the use
13 of the word "reliability" doesn't reflect the fact that
14 the vast majority of the sources to which
15 Professor Cigar refers are quotations from newspaper
16 articles, and it is, no doubt, with that in mind that
17 he uses the word "reliability" in order to ensure that
18 he diminishes material that may be less reliable than,
19 for example, direct quotations from newspaper articles
20 or television broadcasts and matters of that sort.
21 On the question of whether he should have
22 reviewed the evidence or not, well, two points emerge.
23 Of course, if he sat here throughout the case reviewing
24 the evidence, then there would be the complaint that he
25 was invading your factual function. The second point:
1 Insofar as the evidence given by witnesses whose
2 statements he's looked at diverges -- normally it does
3 or it doesn't; normally they simply confirm what they
4 said, but insofar as there's divergence, that's a
5 matter that can be dealt with by way of
7 Yes. I think I've made the point that they
8 are, for the most part, interviews. They're not
9 articles. And the interviews are not only with --
10 they're with a range of people, including Boban and
11 Kordic and other such people.
12 Again, I'm not going to be able to argue his
13 expertise for him. It's a matter that would require
14 his being here. But I understand that expertise of
15 this kind, these days, is some of the expertise that's
16 relied on when decisions are made by armies and by
17 politicians. It is reliable and it is the matter of
18 expertise, and it's the only way you can have the
19 fuller, wider context of this case, which may be of
20 value to you.
21 The suggestion that he should be brought at
22 the beginning is again unfortunate. It's for the very
23 reason that he's here as an assistance and a check but
24 not to substitute that he has been brought at the end.
25 I have to say we reject the unhappy and
1 somewhat extravagant criticisms of the witness, but in
2 any event, were they to be as well-founded as Mr. Stein
3 would like you to believe they are, they can be dealt
4 with by him in cross-examination.
5 So coming back to His Honour Judge Robinson's
6 three queries as to whether by distinguishing between
7 screening matters and other matters the evidence should
8 be excluded, it's our respectful submission that
9 there's absolutely no grounds for exclusion, because
10 it's either a preliminary matter expertise that's for
11 the witness to deal with, and it can't be dealt with on
12 paper; it's either a question of complaining about the
13 deployment of his expertise, again, as I think His
14 Honour was raising as a possibility a matter for
15 cross-examination and not a matter of preliminary
16 nature. And the other issue of real screening doesn't
17 arise, because this witness gives evidence of opinion
18 on the steps towards the final conclusions and the
19 final conclusions, all of which are properly
21 I don't think I need go any further than
22 that. I repeat again that the evidence wouldn't take
23 very long certainly in chief, and that the Chamber
24 could itself -- I see Mr. Stein wants to say something
25 else, but before he does, I'm not encouraging the
1 Chamber to do this, but Chamber's ability to regulate
2 its proceedings means that it is not the case of the
3 witness coming in and I or Ms. Somers saying, "Is this
4 your report?" and that standing as the evidence, as the
5 Chamber can itself say to what degree, at that stage,
6 it's going to accept all of the report as evidence.
7 And it may be the case that the Chamber would, given
8 some of the concerns it's expressed this morning,
9 invite us, if the evidence is led, to deal with
10 particular topics before it then says, "Well, we will
11 incorporate those paragraphs into the evidence." And
12 that would be an exercise of discretion by the Chamber
13 well within its powers, because we don't suggest that
14 any right we have to call relevant evidence is a right
15 to impose on the Chamber all of that evidence. The
16 Chamber has its own powers.
17 I have one more note. Let me see what it
18 says. 94 bis does not contemplate the exclusion. It
19 only contemplates cross-examination. We've made that
20 point in the skeleton argument, and I said we don't
21 rely on it heavily, but it's not lacking in
22 importance. The contemplation is that experts will be
23 led if they're relevant. This one is an expert, this
24 one can show he is, and that there will be
25 cross-examination. That's all I wanted to say.
1 MR. STEIN: May it please the Court.
2 JUDGE MAY: Mr. Stein, we usually don't allow
3 continued debate. You've had your go.
4 MR. STEIN: They went first. I thought -- I
5 have two minutes, Your Honour.
6 JUDGE MAY: Well, the order is -- they went
7 first, and they have the right of reply. You don't
8 have one. We've heard enough. Thank you very much.
9 [Trial Chamber confers]
10 JUDGE MAY: We've considered this matter. We
11 do have in mind Rule 94 bis, of course, which
12 contemplates a procedure in relation to expert
13 evidence. However, it doesn't affect the Trial
14 Chamber's power to exclude evidence under Rule 89 or,
15 as in this case, 89(C), which allows the Chamber to
16 admit any relevant evidence which it deems to have
17 probative value.
18 Much of the complaint made by the Defence
19 about this witness is matter which is susceptible to
20 cross-examination and is a question of weight.
21 However, they raise a fundamental point, which is that
22 what this witness effectively is doing is to provide
23 evidence or provide opinion, more accurately, upon the
24 very matters upon which this Trial Chamber is going to
25 have to rule, and that, as they correctly point out,
1 invades the right, power, and duty of the Trial Chamber
2 to rule upon the issue. And matters have been raised
3 in argument about that, and I refer, in particular, to
4 the conclusions about command responsibility. But the
5 evidence of the witness which has been put forward
6 doesn't stop there. It is littered, if I may say, with
7 examples of conclusions, drawing inferences, drawing
8 conclusions, which it is the duty of this Trial Chamber
9 to consider and to draw if appropriate or to reject.
10 It's correctly pointed out that the witness
11 hasn't heard the evidence. We have, and we have to
12 decide the case. It's not a matter for him to decide.
13 It may be that in certain circumstances
14 experts are now permitted in jurisdictions, certain
15 jurisdictions, to give evidence about the ultimate
16 issue, but we don't think that this is such a case. We
17 also don't think, and this is a matter where Rule 89(C)
18 comes into play, that his evidence is going to assist
19 us very much. 89(C) says we may admit any relevant
20 material which it deems to have probative value.
21 Because it's dealing with the matters which
22 we have to deal with ultimately, drawing the
23 conclusions and inferences which we have to draw, we
24 think that it does not assist and is, therefore, not of
25 probative value. We have in mind, of course, all of
1 the evidence which we've heard over the last ten months
2 in so deciding.
3 Accordingly, we shall exclude the evidence.
4 MR. NICE: As Your Honour pleases. The next
5 witness is producing the video. I have yet to speak to
6 him. He wasn't around yesterday afternoon. I believe
7 the video is here and I believe he's outside. I don't
8 know if I could presume to suggest a short break now,
9 the overall consequence of which might be that we will
10 not only meet the 12.30 deadline but possibly even
11 finish before it, but I don't know.
12 JUDGE MAY: It's about the right time to take
13 the break. Twenty minutes.
14 MR. NICE: Thank you very much.
15 --- Recess taken at 10.15 a.m.
16 --- On resuming at 10.38 a.m.
17 [The witness entered court]
18 JUDGE MAY: Yes. The witness is here. If
19 you would take the declaration.
20 WITNESS: JEAN PIERRE CAPELLE
21 [Witness answered through interpreter]
22 THE WITNESS: I solemnly declare that I will
23 speak the truth, the whole truth, and nothing but the
25 JUDGE MAY: Thank you very much. If you'd
1 like to take a seat, Mr. Capelle.
2 Examined by Mr. Nice:
3 Q. Mr. Capelle, I think you were a
4 Lieutenant-Colonel in the French Army. You were in
5 Bosnia for several years at the time of the conflict,
6 and you are more recently working for the OTP as a
7 military analyst; is that correct?
8 A. Yes, it is.
9 Q. Just tell us a little bit about the time in
10 Bosnia so that you can explain how well you would have
11 known the area. How many years were you there?
12 A. The first time I worked in Bosnia in 1991
13 with the European committee as a monitor. Then I
14 returned in 1992 with the first mandate of UNPROFOR,
15 and I was with the headquarters in Sarajevo, and I was
16 Assistant Officer for the UNPROFOR. Then I returned in
17 1993, and I was military observer in Sarajevo. In 1994
18 I became the Liaison Officer with the HVO in Posusje.
19 And in late 1994 I was posted to the headquarters in
20 Zagreb as the Intelligence Officer with the UNPROFOR,
21 and I was with them until 1995. In 1995, I came back
22 to the Tribunal as the military analyst, and then I
23 went for a short time to Bosnia, and I stayed there
24 once again for about one year and a half.
25 Q. The video that we're going to be looking at
1 was made on what day?
2 A. This video was made on the 25th of May,
4 Q. You were involved in preparing the mission in
5 which the video was made, but you didn't, in the event,
6 travel in the helicopter while the video was being
8 A. Correct. I prepared that mission, which had
9 two stages. First, taking recordings on the ground
10 through the villages, and the second stage was the
11 video which I prepared.
12 THE INTERPRETER: Will the witness slow down,
14 JUDGE MAY: A request that the witness slows
15 down, please.
16 MR. NICE: I know that the witness is indeed
17 bilingual. He's speaking French for various reasons.
18 He may find that he speaks at the speed more helpful if
19 he speaks in English. I expect he'll speak in both
21 Q. But whatever it is, can you do it fairly
23 JUDGE MAY: Choose whichever language you
24 like, but slowly.
25 A. Yes. Very well. Thank you.
1 MR. NICE: [Previous translation
2 continues]... we're going to cover a lot of territory
3 very quickly. I can tell the Chamber that the video,
4 first of all, goes up the Lasva Valley and then comes
5 back again. It may not be necessary to go beyond the
6 first part of the trip, which will be a little under an
7 hour, I think.
8 I've raised with my learned friends whether
9 it would be helpful, subject to the Court's view, for
10 them to be allowed simply to ask that the video be
11 stopped at any points where they want to make points,
12 if that happens, rather than for the whole thing to be
13 rerun again for a second time. This may or may not
14 create difficulties for those taking notes; I don't
15 know. But subject to all those problems, I would
16 invite that as a possible --
17 JUDGE MAY: Mr. Stein and Mr. Kovacic, I mean
18 that seems a sensible course, unless you particularly
19 want to do it in some other way.
20 MR. STEIN: My sense is there may come a
21 time, but I doubt it, that we stop the video. At the
22 end, however, either through cross-examination or a
23 statement, we would like to address the Court as to,
24 frankly, what's not on the video.
25 JUDGE MAY: Well, if there is some point on
1 the video where either of you want to raise a point or
2 any counsel wants to raise a point, it might be
3 sensible to get it stopped then and there and we can
4 look at whatever it is that you want to be pointed
6 MR. STEIN: Very good, sir.
7 MR. NICE: I think the witness will himself
8 ask that the tape be stopped from time to time just to
9 explain where we are, what we are doing.
10 I think the Chamber will, in particular,
11 probably want to have a look at Kaonik. Kaonik is
12 difficult to see from the road, but it is possible to
13 see it through the trees on the video.
14 If there's any view of the mountain road, and
15 Colonel Capelle thinks that there is, it might be worth
16 looking at that, because that is a different type of
17 terrain from the rest of the valley, which is low and
18 somewhat intimate. There may be other places at which
19 the witness will suggest we stop the video.
20 Subject to that, may the video, which is
21 Exhibit 2799, be played, and may I, with the Court's
22 leave, be seated except when I have to stand, as it
24 JUDGE MAY: Yes, of course.
25 [Videotape played]
1 A. The video begins with a view of the village
2 of Tulica, which is 11 kilometres to the south-east of
4 MR. NICE: Without stopping the video, can
5 the witness, perhaps at a suitable time, select a place
6 to stop and point out where we see destroyed roofs or
7 destroyed buildings so that we can thereafter recognise
8 them more easily for ourselves.
9 A. Yes. We're reaching the area of destruction
10 of Tulica. One characteristic is that most roofs have
11 disappeared, which below them sometimes houses are
13 In parts of the video, one can see the areas
14 which are somewhat blackened, as houses which have been
15 set on fire, even though the roofs are still in place.
16 One sees here that the majority of roofs have
17 disappeared from the houses.
18 The helicopter is now flying over a zone
19 which was all criss-crossed with trenches in the area
20 of Tulica. This now appears quite clearly on the
21 screen. One can also see that there are several lines
22 of trenches, and that is what one finds on the ground
23 all the time, more than one line of trenches.
24 The helicopter has now turned towards
25 Kiseljak, that is, north-west, and is reaching the area
1 of Grahovci and Han Ploca. This village is along a
2 road which climbs up the hill to the crest which
3 dominates the road Kiseljak-Sarajevo. We see the
4 houses still have their roofs, but most of them are
6 Here we again see this net of trenches, and
7 down there is the village Han Ploca, Grahovci.
8 We are reaching the village of Rotilj, which
9 is to the north -- that is, to the west of Kiseljak to
10 south-west of Kiseljak, south-west of Kiseljak some two
12 Now you can see that the windows have mostly
13 disappeared from the houses, which is a sign, and then
14 a number of destroyed houses. Some of these houses do
15 not have roofs anymore.
16 MR. NICE:
17 Q. Without stopping the video, when you see an
18 example of roofs that can be distinguished sometimes
19 between Muslim and Croat roofs, will you just draw that
20 to the Chamber's attention, please.
21 A. Yes, I will do that.
22 Now we have reached Kiseljak, and we see in
23 the centre what was the Kiseljak mosque. Its minaret
24 has disappeared. The mosque was to the north of that
25 town, near the road between Kiseljak and Busovaca.
1 Now we're flying over the height of Kiseljak,
2 and it's reaching the HVO barracks in Kiseljak. These
3 barracks are to the south-west of the town and along
4 the route between Kiseljak and Kresevo.
5 The helicopter is now turning west of
6 Kiseljak, and this is the village of Visnjica, about
7 three and a half kilometres west of the town. The
8 helicopter follows the road then which leads to
10 Could you -- stop, please, the film. Could
11 you stop the film? Now, on the hills beyond, one can
12 see that there are no more windows, and all these
13 houses are gutted out. And the majority of the houses
14 which were on the crest up here are destroyed.
15 You can proceed with the film. Yes, you can
16 proceed with the film.
17 We are now arriving at Visnjica, which I
18 should say is in a valley, and here almost all of the
19 houses were destroyed.
20 Now we see that these houses are along the
21 road, and we're passing over the mosque in Visnjica.
22 We are reaching the exit from the village of
23 Visnjica, and the helicopter will now fly over the
24 village. The houses that you see here were destroyed,
25 and in 1996 nobody lived there, and even the houses
1 which had the roofs on.
2 Here we are turning. We see the mosque now.
3 It will appear on your right.
4 The helicopter now arrived at Polje Visnjica,
5 which is along the Kiseljak-Busovaca main road. There
6 are destroyed houses. There are also intact houses
7 there in which the Croat population in the Kiseljak
8 region resides.
9 Would you stop the film, please? Could you
10 stop the tape? Now you can see, to the right and
11 above, and it is relatively clear -- will you please
12 stop the tape? Could we go slightly back, please? We
13 missed that. You can see here roofless houses, and we
14 can see very clearly some houses which do have roofs
15 but the interior of which has been burned or otherwise
16 destroyed. Yes, I think we passed those pictures.
17 Yes, we can move on.
18 Now we are following the road between
19 Kiseljak-Busovaca, passing over Hercezi Duhri, flying
20 over the mosque. And here we are still in the same
21 area near Visnjica and about two or three kilometres
22 away from Kiseljak.
23 We are still in the same area. One can see
24 very clearly the mosque in the centre or, rather, to
25 the left and to the centre. Then we cross the road
1 Kiseljak-Busovaca and turn to the north-east in the
2 direction of Gomionica, and indeed the destruction here
3 is much more evident. Almost all of the houses are
4 without roofs.
5 Behrici is a village adjacent to Gomionica.
6 These villages are on the slope facing the
7 Kiseljak-Busovaca road. We are making a circle and
8 turning towards Gomionica.
9 Would you stop there? Could you stop the
10 tape, please? Here again -- yes, thank you. Once
11 again, we see a group of houses which were all
12 destroyed, all of them. One sees, for instance, houses
13 to the right and closer to us that still have roofs,
14 but one can see that the interior of all those houses
15 was destroyed, and the same holds true of the houses
16 which are behind those in the front.
17 You can move on.
18 We are still flying over Gomionica. We have
19 made a circle, in fact. We are now going towards
20 Svinjarevo, a little bit to the north of Gomionica. We
21 are still following the Kiseljak-to-Busovaca road.
22 This is Svinjarevo that I spoke about a
23 moment ago, a village adjoining Behrici and Gomionica.
24 JUDGE MAY: Is this a valley that we're going
1 A. Yes, indeed we're going up a valley. The
2 villages that we're going to see are on the slopes of
3 that valley, on the slopes of the hills. And I think
4 that the river flowing through that valley is the Mlava
5 River. We're still not in the Lasva Valley. We're
6 south of Busovaca, the Mlava Valley.
7 JUDGE MAY: Is it sometimes referred to as
8 the Kiseljak Valley, or is that somewhere else?
9 A. There are several valleys around Kiseljak,
10 and I don't think this can be called the Kiseljak
11 Valley. But the axis to the north of Kiseljak, going
12 towards Busovaca, goes along a valley up to the zone
13 where we are now. So we are in a valley.
14 JUDGE MAY: Can we go on, please.
15 [Videotape played]
16 A. Could you stop the camera. What appears more
17 clearly now on the screen is the mosque on Svinjarevo
18 and the roof. However, the quality of the picture
19 doesn't allow to us see the details, but the roof has
20 been partially destroyed. And as in the case of most
21 mosques that we saw in the area, the minaret has been
22 destroyed by explosives. It has been mined.
23 We can play the tape now.
24 [Videotape played]
25 A. Can we stop the tape, please. What we see on
1 the screen now is the helicopter is leaving the area of
2 Svinjarevo and we are also leaving the zone of
4 Actually, you had a question regarding this
5 valley. Yes, we went along a valley, and we saw a
6 certain number of villages situated on one and other
7 side of that valley going from Kiseljak. We saw those
8 villages up to Svinjarevo, which are to the right and
9 left of the road that follows the valley, and we are
10 now going to another area, the area of Busovaca. These
11 areas were separated by a corridor controlled by the
12 Bosniak forces during the conflict. So the next
13 pictures will be of villages to the south of Busovaca.
14 There's an entire area known as the Kacuni corridor,
15 which will be shown on the screen now.
16 [Videotape played]
17 A. The first village we're going to see now to
18 the south of Busovaca is the village of Dosnici
19 [phoen], situated to the south-east of Busovaca. We're
20 still in Svinjarevo. We can see the trenches now on
21 the high ground above Svinjarevo.
22 Here again we have houses with roofs, but it
23 is quite clear that the houses have been destroyed
25 MR. NICE:
1 Q. Will you remember to comment on the shape of
2 the roofs when you find an opportunity.
3 A. Yes. The majority of Muslim houses had roofs
4 with four slopes, as you can see, as opposed to houses
5 that we're going to see in Croatian villages. Most
6 Muslim houses have roofs with four slopes.
7 Now we are in the area of Busovaca already,
8 and we are two or three kilometres south of Busovaca.
9 This area is on the hills overlooking the
10 Busovaca-to-Kiseljak road.
11 The area here is covered and, unfortunately,
12 many of the pictures taken from the helicopter does not
13 fully display the relief of the terrain. Here the
14 destruction is also very clear, even when there are
15 parts of roofs remaining, as we see on the screen now.
16 We're still in the same area; that is, flying
17 over the hills south of Busovaca.
18 We have now reached the Draga camp to the
19 south of Busovaca, a camp located in a narrow valley,
20 just before the entrance to the town. And we are now
21 above the Busovaca-to-Kiseljak road. To the left is
22 Kiseljak, to the right is Busovaca.
23 The building there is a building occupied by
24 HVO forces.
25 We are leaving the camp and heading towards
1 Busovaca. We're flying over the town of Busovaca.
2 Here too we can see some destruction of houses, some
3 houses without roofs, when that is very clear, but
4 others with roofs, when the interior has been
5 destroyed. The destruction we have just seen were on
6 the periphery of the town, to the north, on the
7 outskirts of the town.
8 Here is an indication of the Busovaca mosque
9 that we're going to see on the screen.
10 Now we're overflying the northern suburbs of
11 the town.
12 A few kilometres from Busovaca is Kaonik, the
13 Kaonik camp, and you can notice that the buildings of
14 this camp are surrounded by trees, and it is virtually
15 impossible to see it. We see the road to the left, and
16 it is almost impossible to see the buildings of Kaonik
17 camp, which is concealed by the vegetation and which is
18 on a hill. We're only two kilometres -- two and a half
19 kilometres from Busovaca. We're still flying over the
20 buildings of the camp.
21 The helicopter is now leaving Kaonik camp and
22 is heading to the west, to the villages of Strane and
23 Merdani. These villages are in the Lasva Valley.
24 We're passing Strane now, where the
25 destruction is quite evident.
1 We are two or three kilometres to the west of
2 Kaonik camp and close to the road of the Vitez-Kakanj
3 or Vitez-Zenica road.
4 The helicopter is now going to cross the
5 Lasva Valley to go to the north of the valley and fly
6 over the villages of Putis, Jelinak, and Loncari.
7 That's where we are now.
8 To the left you can see the hills which are
9 part of the Kuber range. When we visited these
10 villages, they were already in the process of
11 reconstruction. As you will be able to see, some of
12 the roofs are completely new.
13 And now we see that this area is far more
14 open than the area around Busovaca.
15 Here we see on the screen that some of the
16 roofs are new and a great deal of damage is evident.
17 We're in the same area to the south of the
18 Kuber range, and we're flying over now Gravrino Kuce.
19 We're only some eight kilometres away from
20 Vitez, which is a maximum ten-minute drive from Vitez.
21 "The mosque at Putis" is written on the
22 screen, but you can't see it at all. A large number of
23 houses in Putis were already repaired or in the process
24 of repair when we visited.
25 On the screen, it says that the area we are
1 flying over is not really known. In fact, it could be
2 the hamlet of Bakiye, which is situated between Loncari
3 and Putis at the top of a hill.
4 We are still in the same area south of the
5 Kuber range, a very important area, from the strategic
6 point of view, for the freedom of action along the
7 Busovaca-Vitez route, and we're going to leave that
8 area now to approach Vitez and fly over Nadioci and
10 We have now arrived in Nadioci in the Lasva
11 Valley, and we are flying over the Vitez-Busovaca
13 We're now approaching the location of a
14 bungalow, what was called the Bungalow in Nadioci.
15 Here almost all of the houses in Nadioci were
17 So the helicopter is now flying over Nadioci
18 hills and is approaching Ahmici, and here again this
19 village is against the range which -- mountain range
20 or, rather, the hill range which is very important,
21 because it controls the road.
22 So now we are overflying the location of the
23 Bungalow. We passed it by, and it was destroyed
25 We are now coming to Ahmici from the south.
1 We see the Vitez-Busovaca road in front of us now, and
2 one can distinguish in the centre the road which leads
3 to Ahmici.
4 We are now on the other side of the road and
5 overflying Ahmici. We are overflying the part which is
6 the closest to the Vitez-Busovaca road, and almost all
7 the houses -- practically all the houses here were
8 destroyed. There are only a few intact houses, and
9 these are inhabited by Croats.
10 Now we can see in the centre of the screen
11 the mosque in the lower part of Nezirovici. It
12 disappears down on the monitor, but we shall see it now
13 in the centre.
14 Now we are going up Ahmici and then moving to
15 the Upper Ahmici. Here we are above Ahmici, in the
16 upper part of Ahmici. And here, because the roofs are
17 there, one might think that the houses are intact, but
18 they are, nevertheless, destroyed. I'm referring to
19 the houses that we can see on the screen.
20 We are still in the upper part of the village
21 of Ahmici, and this is the mosque in Upper Ahmici.
22 This is the mosque in Lower Ahmici. Its
23 minaret was broken, and it fell on the roof of the
25 We see the Vitez-Busovaca road.
1 Now the helicopter turns, and we see -- at
2 the bottom, we see that we are now coming to Vitez,
3 about five minutes from the town.
4 Now we are flying along the road and coming
5 to Santici, which adjoins the village of Ahmici as one
6 approaches Vitez, and we can see the range which
7 dominates the valley and then Kuber in the background.
8 Here we are about two and a half kilometres from
10 Now we have reached the area of Pirici, and
11 we see the roofs which had been repaired. It is quite
12 clear on the house which has just disappeared from the
13 screen. That roof had been rebuilt.
14 And it says here all the area that one can
15 see from the helicopter, that we saw, and the area that
16 we are flying over, that is, the whole area that we saw
17 formally. And now all this area is strewn with mines,
18 so that one could not move on foot very much and enter
19 all the villages.
20 We are still flying over the north part of
21 the Vitez-Busovaca road, and this is still the area of
22 Pirici. But this time we're flying near the trenches.
23 It was impossible to go to this high ground at the time
24 because of the mines.
25 We are now in the upper part of Sivrino Selo,
1 and we are approaching, slowly, Vitez. Sivrino Selo,
2 as I mentioned, is just north of Dubravica in the
3 outskirts of Vitez, a suburb of Vitez.
4 The helicopter has now reached Stari Vitez
5 and is about to fly over the chemical plant. Here we
6 are, the first building. So this is the chemical plant
7 making explosives, and it went on working for the
8 duration of the conflict.
9 We're now approaching Gacice, which is to the
10 west of Vitez, near the chemical plant, and moving on
11 to Veceriska, also in the vicinity of Vitez. We are
12 now two kilometres from Vitez. We can see here that
13 the hills above the factory, all this area, the
14 buildings there and in Gacice were destroyed.
15 Q. Please remember, if you get a sighting of the
16 mountain road to Zenica, to stop the video and point it
17 out to us.
18 A. At the moment, we are not in the area of that
19 road. We are to the south/south-west of Vitez now, and
20 the road that you are talking about is to the
22 We are still over the area of Gacice, close
23 to the chemical plant, and still west of Vitez. In
24 point of fact, one can see the plant on the left-hand
25 side of the screen.
1 We are still in Gacice, but now this is a
2 close-up and this is the north view.
3 Now we are coming into Vitez or, rather,
4 Stari Vitez, approaching Stari Vitez. We are still
5 overflying the plant.
6 Now the helicopter heads south of Vitez to
7 the area of Kruscica, but we are still close to the
8 plant; that is, still near Veceriska and Gacice. As a
9 matter of fact, this is Veceriska that we can see.
10 JUDGE MAY: We've seen quite a lot of the
11 chemical works. Maybe we can speed it up.
12 A. Yes. We are about to arrive in Kruscica.
13 MR. NICE:
14 Q. I think we're probably approaching the time
15 when the helicopter returns, and at that point we can
16 stop the video. It's possible we can accelerate it and
17 go fast-forward if the Chamber has had enough of this
18 particular passage.
19 A. There are several interesting images,
20 perhaps, and these are of the quarry which is to the
21 north-west, where there was the civilian headquarters
22 of the HVO, and also some interesting images of
23 Kruscica. But we are in Stari Vitez, and here again we
24 can get an idea of the destruction of Stari Vitez. A
25 large number of these houses have already been
1 repaired, or some are being repaired.
2 So we -- the helicopter is overflying Stari
3 Vitez and the area where the victims of Ahmici were
5 We are overflying the road which leaves
6 Vitez; that is, the road leading north of Vitez,
7 leading to Travnik. We enter Vitez from north. To the
8 right of the screen, we can see Vitez Hotel and the HVO
9 headquarters. Excuse me. On the left-hand side of the
10 screen, we see the Vitez Hotel, on the left-hand side.
11 And up in the upper part to the right is the cinema.
12 It had disappeared from the screen, but we
13 are now moving to the southern part of Vitez. And
14 there is some buildings destroyed, which are gradually
15 disappearing from the screen.
16 Now the helicopter is making a circle and
17 turning back to the northern part of the town. We
18 shall shortly see the Vitez school, and I believe we
19 will see the cinema once again.
20 Here we are there. The cultural centre was
21 to the left. We can't see it anymore. But to the left
22 at the top of the screen we see the school, and it
23 reappears on the screen on the left-hand side.
24 So we see the distance from the centre of the
25 city and the Hotel Vitez -- rather, the headquarters.
1 It is only about a hundred metres. This building is a
2 municipal hall of Vitez; that is, the administrative
4 If you could now move fast-forward. Can you
5 speed it up, please? Yes, you can slow it down now.
6 You can slow it down now.
7 We are reaching Kruscica, which is to the
8 south of Vitez. This was the zone controlled by
9 Muslims during the conflict.
10 You can fast forward now, please, again,
11 because the helicopter is about to once again fly over
12 the northern part of Vitez and the quarry in the north
13 of Vitez.
14 So the helicopter goes back to Vitez.
15 Q. Have we reached the place where the
16 helicopter is about to return?
17 A. Not yet. It will be after we overfly the
18 quarry, and I think we're about to reach it.
19 Q. Unless there's anything in the remaining film
20 that you think we should look at, we'll perhaps
21 terminate it there.
22 A. Yes. We're once again flying over the area
23 that we saw, and the only different thing which one can
24 see here is the quarry before, and it may be
25 interesting, but otherwise we do not see here any
1 footage of destruction.
2 Q. We'll just have a look at the quarry, because
3 it does feature in the evidence, if it doesn't take us
4 too long to get there. We didn't find anything along
5 the mountain road, but we can see in general the size
6 of the mountains to the north of Vitez.
7 As we were flying over Busovaca, I don't know
8 if you're aware of the road to Tisovac, but it was
9 barely visible, although the wooded area in which it
10 passes could be seen.
11 A. Now it crosses to Grbavica, and we are about
12 to come to the quarry. We're about to -- we can see
13 Grbavica, the village, which was destroyed, on the hill
14 which is now disappearing to the right. We see
15 destroyed houses.
16 Now we can see the quarry. Slow down,
17 please. We're some three kilometres, three and a half
18 to the north of Vitez.
19 Q. The "Nora" referred to on the screen refers
20 to what?
21 A. It is an HVO gun, an HVO cannon, and it was
22 in this area, positioned in this area, in the quarry.
23 As one comes down from the quarry, there is
24 an area which was quite -- an area where it was quite
25 possible and easy to position various artillery
2 Now we're in the quarry. We see what it
3 looks like now, and that is rather surrounded and,
4 therefore, it offered good protection for whatever
5 materiel was there.
6 And now we're leaving the quarry. I don't
7 know if you want to follow to the end of the film.
8 We're going back to Vitez. We have the Lasva Valley in
9 front of us.
10 Q. I think --
11 JUDGE MAY: It's been ended.
12 MR. NICE: It seems to have been edited,
13 making the decision for the witness. So there we are.
14 Nothing else I want to ask of Colonel Capelle. I'm
15 grateful to him for his commentary as we've been going
17 Cross-examined by Mr. Naumovski:
18 MR. NAUMOVSKI: [Interpretation] Thank you,
19 Your Honours.
20 Q. I have a few questions for you, Witness, of a
21 principal nature. My name is Mitko Naumovski. I'm
22 Defence attorney from Zagreb, and I am one of the
23 lawyers defending Mr. Kordic.
24 Tell me, please, how long you spent in the
25 Central Bosnia area, if you can. Approximately.
1 A. I did not live in Central Bosnia, but I
2 passed through the area on several occasions. I had to
3 pass through to go to the headquarters in Kiseljak, to
4 travel between Sarajevo and Kiseljak, to go to Gornji
5 Vakuf, to travel between Gornji Vakuf and Vitez, to
6 travel between Posusje, Gornji Vakuf, Vitez, Zepce. So
7 so I went through this area on a number of occasions
8 quite frequently, but I never actually stayed in
9 Central Bosnia.
10 Q. Tell us, please, do you know -- were we --
11 were you told which municipalities belonged to the area
12 of Central Bosnia?
13 A. Yes, but I didn't take notes about it. Yes.
14 I was told about the municipalities of Central Bosnia,
16 Q. If I understood you correctly, sir, you drew
17 up the plan for the filming but were not present when
18 the filming was done, but you did make a plan for that,
19 you did plan it all.
20 A. For this mission I was given a list of
21 villages which the investigative team should visit.
22 The time given to us was quite short, so we had to do
23 it in logical manner, to identify the co-ordinates which
24 would allow the people accompanying us, that is the
25 SFOR people, to work in convenient conditions with us,
1 and I acted as more of a topographer then than as an
2 historian or geographer, as you seem to indicate. I
3 was not concerned with the municipalities in which the
4 villages were situated, for instance.
5 Q. Tell us, please, who assigned this task to
6 you? Who told you what should be filmed?
7 A. I didn't make the film myself, so I wasn't
8 told what should be filmed. If I had been in the
9 helicopter, I would have made a different film, there's
10 no doubt.
11 I am not a video technician. I was simply
12 told to make a plan to cover these villages. First, to
13 inspect the villages and make a photographic report.
14 After that, I was asked to make a plan of the flight
15 over this area, which I did on a number of occasions.
16 Q. That's not what I had in mind. Perhaps I
17 wasn't precise enough. What I wanted to know is who
18 gave you a list of places to be filmed? That is what I
19 wanted to ask, in fact.
20 A. The person who provided me with the list was
21 the responsible person of the investigation working for
22 the Prosecutor, and this responsible person gave me the
23 list and told me what he wanted to do. This person was
24 in the helicopter, and that is why I saw that Ahmici
25 was overflown twice, for reasons that the investigator
1 himself knows. It was not something that I was told to
3 Q. If I understood you correctly, then it was
4 somebody from the Office of the Prosecutor; is that
5 correct? Could you give us his name, please, the name
6 of that person?
7 JUDGE MAY: What does it matter,
8 Mr. Naumovski, what the name of the person was?
9 Indeed, what does it matter what the instructions
10 were? The only point of this evidence is to show us
11 what the scene was in 1996, and in the absence of any
12 visit to the area, to give us some idea of what the
13 countryside looks like. That's the only point.
14 There's nothing else to be gained from it. So whoever
15 instructed it or anything of that sort is irrelevant.
16 MR. NAUMOVSKI: [Interpretation] Yes. That is
17 precisely my next question. This was the groundwork
18 for that question that I was about to ask. So if I may
19 go ahead.
20 JUDGE MAY: [Previous translation
21 continues] ... next question.
22 MR. NAUMOVSKI: [Interpretation] Yes. That's
23 precisely what I wanted. Thank you, Your Honour.
24 Q. I noticed, Witness -- and that is why I
25 started asking you along these lines, questions along
1 these lines -- that a whole series of villages are
2 lacking on the film and the tape that has been played
3 to us.
4 Let me give you an example. You moved from
5 the Kiseljak municipality area, the film passes over
6 there. The last place was Svinjarevo. Then the first
7 place in the Busovaca municipality is Ocehnici. There
8 are a series of villages that are not shown, for
9 example, between Bilalovac and Kacuni. There we have a
10 series of Croatian villages, Oseliste, Gusti Grab,
11 Nezirovici, and so on. So can you, please, tell us why
12 those particular villages were not filmed?
13 A. I'm not able to tell you why those villages
14 were not filmed, because I was asked to undertake a
15 technical assignment, to prepare an itinerary for
16 people who had to make the photographs. At the level
17 of preparation, neither I, nor the video technicians,
18 nor the photographers, made the choice of villages that
19 needed to be photographed or filmed. Therefore, the
20 choice was not mine. I was given a list, and on the
21 basis of the list I made the plan.
22 JUDGE BENNOUNA: [Interpretation]
23 Mr. Naumovski, bearing in mind what has just been said
24 by my colleague Judge May, do not feel obliged to make
25 a cross-examination regardless of the situation. This
1 was simply a presentation of a certain number of
2 places. If you wish to add, through the Prosecutor --
3 if you think that you need to visit certain places that
4 do not appear on this film, you can mention it for the
5 record, but there is no need to extend the
6 cross-examination in an artificial way.
7 You have a technician here who carried out a
8 job assigned to him by the Prosecutor. It is up to you
9 to tell us if something is lacking, and then we can
10 proceed much more quickly.
11 MR. NAUMOVSKI: [Interpretation] I absolutely
12 agree with you, Your Honour. I just wanted to ask that
13 by way of information, not by way of a
14 cross-examination. I think that we have agreed that
15 this witness has answered precisely the question that I
16 wanted to tell the Court, and that is to say that a
17 series of places have not been included in the film.
18 So we agreed on that point, and I have just one more
20 Q. I think, Witness, that we agree; that is to
21 say that you did not film any of the places in the
22 Travnik and Novi Travnik area. We agree on that point,
23 don't we? And those municipalities are also within the
24 composition of Central Bosnia.
25 A. That is true. I was not asked to do that. I
1 was not asked to plan anything on villages belonging to
2 Novi Travnik or Travnik, rather, those municipalities.
3 MR. NAUMOVSKI: [Interpretation] And my last
4 question, if I may, with Your Honours' permission.
5 Q. Witness, a moment ago you mentioned the
6 village of Bakir, between Putis and Loncari. It is a
7 very small village, a hamlet, and you said that houses
8 had been burnt there.
9 A. That is true.
10 Q. Can we agree that you, in fact, do not know
11 exactly which part of the village or which actual
12 village belongs to the Croats, where the Croats lived
13 and were the majority population or where the Muslims
14 were the majority population; that is to say, which
15 section of the village was destroyed and which was
16 not? You do not know that in precise terms, do you,
18 A. No. I don't know which part of the Bakir
19 village was inhabited by Croats and which part was
20 inhabited by Muslims.
21 Q. Thank you, Witness.
22 MR. NAUMOVSKI: [Interpretation] And I thank
23 the Trial Chamber as well.
24 MR. KOVACIC: Your Honour, to be frank, I'm a
25 little bit confused. [Interpretation] If I may
1 continue in Croatian.
2 I seem to feel that this video has the
3 function, as Judge Bennouna has just stated, of giving
4 us a better understanding of the locality itself, the
5 one that we have been discussing here since April. And
6 so I don't know whether this is a classical
7 cross-examination, especially in view of the role of
8 the witness in this regard. But if we exclude this as
9 evidence for our client, I'd like to ask three simple
10 questions, if I may.
11 Cross-examined by Mr. Kovacic:
12 Q. The first question is: Please tell us,
13 sir -- you explained to us the signs on houses which
14 showed that something happened to houses or didn't
15 happen to them. Tell us, please, from these pictures
16 of all the houses destroyed that we have seen, are we
17 able to conclude from them at all that a house was
18 destroyed in the course of direct combat activities,
19 for example, if it was targeted by the opposite army,
20 or whether it was a criminal incident like somebody
21 planting a bomb and moving forward? So can you say,
22 for any of these cases, the reason for which this
23 house -- one particular house was destroyed?
24 A. In some cases, the causes of destruction are
25 evident for me, as a military man and as an artillery
1 man, and who knows rockets, anti-tank rockets, and is
2 familiar with various ammunitions. In some cases, it
3 is evident I was able to see that destruction was
4 caused by ammunition, by explosives. An example: On
5 the film that we have just seen, it is evident that the
6 minaret of the Ahmici mosque, the Lower Ahmici, that
7 the minaret was destroyed by explosives. It is true
8 that, in some cases, it would be necessary to undertake
9 a technical investigation, with the help of ballistics
10 experts and explosives experts, to know the exact cause
11 of destruction.
12 What I wanted to tell you is that in the
13 course of this mission, which took place in May 1996,
14 we saw hundreds -- I say hundreds of destroyed houses
15 in six days, and the purpose was to prepare a
16 photographic report and a film report to see the
17 destruction. In the course of that mission, we did not
18 undertake a technical study into the causes of
20 Q. I understand, yes. But the circumstances
21 under which these houses were destroyed; correct?
22 A. That was not the purpose of the mission.
23 Regarding the circumstances, we would have to know --
24 we would have to have ballistic experts, experts in
25 explosives, but also to undertake a historical study, a
1 specific study of the events that took place in the
2 area under review.
3 Q. Witness, in determining the plan for the
4 filming, did you have the co-operation of local people
5 who could tell you that a certain village, Village X,
6 for example, and a portion of Village X is called
7 such-and-such, has a particular name, and that it is
8 not found topographically on the map under that name,
9 that they were local names given to parts of villages
10 and it is only the local people who knew that a village
11 was called in one way or another? Did you have the
12 expert co-operation of locals of this kind?
13 A. In the course of the mission in 1996, the
14 only persons who participated in the mission were
15 technicians, photo/video technicians, investigators
16 from the Office of the Prosecutor, and people from
17 SFOR, military men from SFOR. I do not think that
18 there is any doubt regarding the localisation of the
19 villages that we mentioned because, on the one hand, we
20 have detailed maps and, on the other hand, we have
21 technical means which allow us, in a very precise
22 manner, to verify the localisation of the places we
24 Actually, we did not use the assistance, if I
25 understood your question well, the assistance of local
1 people to possibly familiarise ourselves with the
2 names, but we covered the villages that are clearly
3 indicated on the maps.
4 Q. Thank you, thank you. So in determining the
5 plan, you made use of the actual names introduced on
6 the maps and which exist on the maps; is that correct?
7 A. That is correct.
8 Q. Sir, did you perhaps ever ascertain that in a
9 standard edition of the military map, main military map
10 used for the area, that there is an error, in fact,
11 which once -- and my eyes were watery when I looked at
12 it. There is, from Pirici and Vidovici, there is a
13 place there near Sivrino Selo. Did you notice?
14 A. To answer your question, I'm going to tell
15 you that if, indeed, we use the standard map for the
16 technical work, there are other aspects. There is the
17 security aspect, there's the question of access to the
18 various areas we accessed, and there were other maps
19 provided by SFOR. So I didn't rely exclusively on what
20 you call standard maps with a standard scale.
21 It may occur rarely, but it is possible that
22 certain maps have errors regarding the names of places,
23 and then they are compared with other maps drawn up by
24 other bodies in a different manner.
25 Q. Thank you. And perhaps just one more
2 I think you'll agree with me that on the
3 video we did not see a single image -- and if you would
4 just like to take up the map that you had. Could you
5 look at the map that you were using? As I said, I
6 think you will agree that we did not see a single image
7 which would be more northerly to the Sadovace, Jardol,
8 Krcevine and Sivrino Selo villages, so all this is
9 parallel -- runs parallel to the main road in the Lasva
10 Valley north of Vitez, and on that line you never
11 showed us an image which was more northerly to this
13 A. No, there were no sequences on the northern
14 slopes, as you have mentioned. The sequences covered
15 the villages on the slopes of the hills bordering the
16 Lasva Valley but certainly not the heights that you
17 have mentioned. That is correct.
18 Q. And my last question: You explained to us
19 how the project came into being, but was the link
20 mentioned in any way of the locations with the
21 positions in which the Vitez Brigade was active?
22 A. No. When we were working on this, there was
23 no question of making any military localisations. We
24 just had to cover villages and hamlets, and no
25 comparison was made regarding military deployment or
1 any historical events. This was a purely technical
3 MR. KOVACIC: [Interpretation] Thank you very
5 MR. NICE: Just one thing for the witness, if
6 I may, or two.
7 Re-examined by Mr. Nice:
8 Q. You spoke of a photograph record that you
9 took as part of the same exercise. Does that record
10 still exist in library form, that is to say, all of the
11 photographs gathered together?
12 A. I didn't make any research into those
13 photographs, but I assume that they are at the disposal
14 of the Office of the Prosecutor, who were the party
15 that ordered this mission.
16 Q. And did you similarly restrict photographs to
17 the villages that were viewed from the helicopter or
18 may some of those photographs have covered other
19 villages, perhaps the villages which the Defence may
20 have an interest in?
21 A. I didn't bring here the list of all the
22 villages. I know that some of the villages we
23 inspected were not flown over by the helicopter,
24 because we had to pass through villages which need not
25 necessarily have been indicated on this videotape.
1 Photographic work was done parallel, and it
2 doesn't entirely coincide with the video that you saw
4 MR. NICE: Your Honour, if Colonel Capelle
5 gives me the list and if the Defence tell me what
6 villages they have an interest in, we'll see if we can
7 find the photographs.
8 JUDGE MAY: Very well.
9 MR. NICE: I think, Colonel Capelle, the
10 position is that whoever instructed you in relation to
11 these matters, those people, in the nature of things in
12 this institution, have now been replaced by others.
13 THE WITNESS: [Interpretation] I should
14 like -- I should like to be precise regarding the last
15 question put to me regarding places north of the
16 Vitez-Busovaca road. We did not undertake a visit of
17 those villages either on the ground or by helicopter.
18 We did not cover that zone, definitely, as the Defence
19 asked. There was a problem.
20 One must know that the crest dominating the
21 Lasva Valley is what is known during the conflict as
22 the confrontation line, and that for reasons of
23 security, it was not possible to go there on foot or in
24 a vehicle because the areas were still considered by
25 some to be polluted by mines.
1 JUDGE MAY: Very well.
2 Colonel, thank you very much for coming and
3 giving your evidence. You are released.
4 [The witness withdrew]
5 JUDGE MAY: We will adjourn now until Monday
6 morning, half past 9.
7 --- Whereupon the hearing adjourned at
8 12.20 p.m., to be reconvened on Monday,
9 the 31st day of January, 2000,
10 at 9.30 a.m.