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  1. 1 Monday, 12th April, 1999

    2 (Open session)

    3 (The accused entered court)

    4 --- Upon commencing at 9.48 a.m.

    5 JUDGE MAY: Yes. Let the registrar call the

    6 case.

    7 THE REGISTRAR: Good morning, Your Honours.

    8 Case number IT-95-14/2-T, the Prosecutor versus Dario

    9 Kordic and Mario Cerkez.

    10 JUDGE MAY: The appearances, please?

    11 MR. NICE: I appear to prosecute with Susan

    12 Somers, Kenneth Scott, Patrick Lopez-Terres, and Rodney

    13 Dixon; case manager, Alinde Verhaag.

    14 MR. SMITH: For the Kordic Defence, Your

    15 Honour, we have here Turner Smith; my colleague, Mitko

    16 Naumovski; Robert Stein; my colleague from our Fairfax

    17 office, Steve Sayers; and Jadranka Berkic, who has not

    18 been before the court before but is a paralegal who

    19 will be our courtroom assistant; and Ksenija Turkovic.

    20 MR. KOVACIC: Good morning, Your Honours. My

    21 name is Bozidar Kovacic. I am an attorney-at-law from

    22 Croatia, from Njivice. Let me introduce my co-counsel,

    23 Mr. Goran Mikulicic, who is here for the first time

    24 with me, and my legal assistant, Mr. Vladimir

    25 Pavlekovic, who was here previously as a co-counsel.

  2. 1 At the same time, I am asking the Court permission to

    2 have a legal assistant with us in the courtroom for the

    3 next couple of days.

    4 JUDGE MAY: Yes.

    5 MR. KOVACIC: Thank you.

    6 JUDGE MAY: Thank you. There will be no need

    7 during the trial to mention the appearances again

    8 unless lead counsel is away or there is a substantial

    9 change in any of the legal teams; otherwise, we will

    10 assume the appearances are as today.

    11 I am going to turn to the accused next to

    12 ensure that they can hear the proceedings in a language

    13 which they understand.

    14 Mr. Kordic, can you hear the proceedings all

    15 right?

    16 THE ACCUSED KORDIC: (Interpretation) Your

    17 Honours, good morning. Thank you for having asked. I

    18 understand everything and I can follow the trial today

    19 normally. Thank you.

    20 JUDGE MAY: Mr. Cerkez?

    21 THE ACCUSED CERKEZ: (Interpretation)

    22 Honourable President, Your Honours, thank you. I am

    23 able to understand everything.

    24 JUDGE MAY: Very well. I shan't again during

    25 the trial ask you if you can hear and understand the

  3. 1 proceedings. If, for some reason, you can't, then

    2 indicate immediately. If necessary, speak out. So at

    3 any stage, let the Court know if you can't follow

    4 what's being said.

    5 If you would like to sit down?

    6 Mr. Nice, if I could address you? The matter

    7 clearly is listed for opening, and that should be dealt

    8 with as quickly as possible, but there are some

    9 preliminary matters which are outstanding which I wish

    10 to deal with now, but by way of various rulings and

    11 announcements.

    12 The first matter, in fact, concerns the

    13 Defence, and it relates to the seating of the accused.

    14 In fact, the application was made by Mr. Kovacic at the

    15 pre-trial hearing, for the accused to be seated next to

    16 their counsel, and I said then that we would consider

    17 the matter and rule on it. We have done that. We have

    18 ruled that the accused should remain where they are.

    19 This has always been the practice in this Tribunal,

    20 which we think should be continued in this case, also

    21 for security reasons.

    22 The next ruling concerns the proceedings

    23 generally, and we have decided that all motions during

    24 the course of the trial should be made orally. Written

    25 motions will only be entertained with the leave of the

  4. 1 Trial Chamber or at its request. The reason we make

    2 this ruling is in order to achieve a more expeditious

    3 trial, in order to save public time and money. A

    4 written motion has, for instance, first of all, to be

    5 deposited with the registry, it then has to be

    6 translated, same thing has to happen to any response,

    7 and the same with a written decision. Oral motions or

    8 rulings can, of course, be dealt with immediately, and

    9 there is a record in the form of the transcript.

    10 The other matter which does concern the

    11 Prosecution is this, that you have provided a witness

    12 list, but there is no time estimate attached to it as

    13 far as I see, and that is required by Rule 73 bis; that

    14 is, that in relation to each Prosecution witness, there

    15 should be a time estimate of the length of his

    16 examination-in-chief.

    17 Now, Mr. Nice, can you undertake to do that?

    18 MR. NICE: I can, of course, undertake to

    19 provide an estimate. I think I discussed the matter

    20 with Mr. Smith on an earlier occasion, and I think we

    21 actually agreed that until the case is under way, it is

    22 very difficult to estimate, for any particular type of

    23 witness, how long the witness will take, but certainly

    24 we will provide an estimate, and, of course, our

    25 calling up of future witnesses is based on a very

  5. 1 approximate estimate that we have already made of how

    2 long witnesses will take.

    3 JUDGE MAY: Well, seven days then for that.

    4 There is one matter of housekeeping, and that

    5 concerns the week beginning the 26th of April where it

    6 is possible that we shall not be sitting in the

    7 mornings; that is because of a relisting of other

    8 cases, in one of which I am sitting in the mornings of

    9 that week, if it is listed. But we will give you

    10 further details when they are available.

    11 Mr. Nice, as far as the other matters are

    12 concerned, it would seem to me more convenient to deal

    13 with them after the opening. I have in mind

    14 applications in relation to protective measures for

    15 witnesses and also problems that have arisen due to the

    16 translation of witness statements, but I anticipate

    17 that these will require the hearing and consideration

    18 of submissions, some of which may be in closed session,

    19 and therefore it is more convenient to deal with that

    20 after we have heard the opening.

    21 Are there any matters before you open which

    22 you wish to raise?

    23 MR. NICE: Only one. In the course of my

    24 opening, I am going to be taking Your Honours through

    25 quite a number of the bundle of core documents that

  6. 1 were submitted with the Prosecution's pre-trial brief.

    2 Perhaps that will be the most helpful way to

    3 familiarise the Court with the issues in this case.

    4 I will, of course, not be reading any

    5 documents slavishly line by line, and insofar as I

    6 shall be reading them at all, it will be in English. I

    7 know that professional judges can move through

    8 documents, even if they are not familiar with them,

    9 frequently at a reasonable speed, and I am not inclined

    10 at present, unless otherwise advised, to use the ELMO

    11 to put documents on on a regular basis. I would, of

    12 course, be sensitive to any different view that the

    13 Court takes, bearing in mind its duty to make these

    14 public proceedings.

    15 JUDGE MAY: Mr. Nice, I suspect it is a

    16 matter for you how you deal with it. I would have

    17 thought some of the documents should certainly be

    18 displayed so that the public can see them and follow

    19 what's being said. But I leave that entirely for you

    20 to decide and make your own choice.

    21 How long do you anticipate being in opening?

    22 MR. NICE: It's always very difficult, but I

    23 should think I'll probably consume the morning. I had

    24 originally thought it would be shorter, but I suspect

    25 it will be the morning. Until I see the speed at which

  7. 1 collectively we go through the documents, I can't be

    2 sure.

    3 JUDGE MAY: The Chamber will take the usual

    4 break at 11.15, 20 minutes' break.

    5 There is one matter for the Defence, and it

    6 is this, that the Rules provide, of course, that the

    7 Defence can make a statement, if they wish, an opening

    8 statement, following the Prosecution opening.

    9 Do counsel wish to avail themselves of that

    10 opportunity, or do they wish to reserve their opening

    11 statement?

    12 MR. SMITH: Your Honour, we will, for the

    13 Kordic Defence, reserve our opening statement, and we

    14 have several matters of a preliminary nature that I

    15 think are best taken up after the opening statement

    16 when Your Honour is examining the question involving

    17 translations. Thank you.

    18 JUDGE MAY: Yes. Mr. Kovacic?

    19 MR. KOVACIC: (Interpretation) Your Honours,

    20 we also based our decision on Rule 84, that is to say,

    21 to make our statement after the Prosecutor's

    22 statement.

    23 There is no translation.

    24 THE INTERPRETER: There is interpretation.

    25 Can everyone hear us?

  8. 1 JUDGE MAY: So you won't be making a

    2 statement today.

    3 MR. KOVACIC: (Interpretation) No.

    4 JUDGE MAY: Very well. Mr. Nice?

    5 MR. NICE: As the Court will know, on the

    6 morning of the 16th of April of 1993, the small village

    7 of Ahmici, lying close to Vitez, was turned red by the

    8 flames of its houses that were burnt to the ground and

    9 by the blood of its innocent inhabitants who were

    10 killed in a massacre, killed by those favouring the

    11 interests of the Croats against the Muslims.

    12 That appalling crime, of course, as we know

    13 in this Tribunal -- and in numerical terms by no means

    14 the worst that this Tribunal has to deal with, but

    15 nevertheless an appalling crime -- is one of the

    16 matters charged against these two men, Dario Kordic and

    17 Mario Cerkez, and its seriousness could make it the

    18 focus, the centre of gravity of this case and could

    19 concentrate attention on it, but that would not be, in

    20 our respectful submission, a correct or an easy

    21 approach to this case.

    22 For what is said against these two men is

    23 that they took part in a long-term and a geographically

    24 widespread persecution of Muslims in the centre of

    25 Bosnia, and that persecution was varied in its

  9. 1 effects. It started at one level and descended until

    2 the depths of the attack on Ahmici and on other

    3 villages that same night, and continued thereafter with

    4 another serious coda in the killings at Stupni Do,

    5 until it ended -- indeed, it was effectively just

    6 switched off -- at the Washington Agreement.

    7 So that this is a case where careful

    8 attention will have to be paid to a long course of

    9 conduct. Similarly, this is not a case where the

    10 Prosecution suggests that there wasn't wrong and there

    11 wasn't crime committed by other parties, indeed, by all

    12 sides, and this is not a case where the Prosecution

    13 suggests that these defendants or either of them

    14 embarked on what they did with an initial intention to

    15 commit crime or monstrous acts.

    16 This is a case where people found themselves

    17 in conflict, and of course the conflict started by the

    18 Serbs, something outside the control of the parties to

    19 this particular case. They found themselves in

    20 conflict, and it may be that the Court will, in due

    21 course, consider whether it was a combination of their

    22 individual strengths and weaknesses, perhaps their

    23 inadequacies and their ambitions, that led in one case

    24 or the other to their having vested in them power and

    25 authority that might never have come to them in

  10. 1 well-ordered society. But of course the circumstances

    2 of war are different, and once the power and authority

    3 of the type we shall see did vest in these defendants,

    4 was with them, it would be both difficult to surrender

    5 or to have taken away, and it might in the very nature

    6 of things be both addictive and corrupting, and by

    7 whatever process men find themselves in positions of

    8 power and responsibility, if they abuse the power and

    9 fail to discharge the responsibility, they must face

    10 the consequences of their actions and failures.

    11 But again, the Court will need, no doubt with

    12 great care, to examine the long-term history of the

    13 actions of these men, and particularly of the first

    14 defendant, Kordic. If I use his surname for brevity, I

    15 hope no one will mind; it's to save time, and it shows

    16 no disrespect.

    17 The Court will need to look at things long

    18 term, no doubt asking itself from time to time what was

    19 the state of mind of this man, what were his

    20 then-revealed intentions and aspirations, were the

    21 things that he said -- and there were things that were

    22 favourable to the Muslims -- were they sincere or

    23 otherwise? Therefore, just as with the persecution

    24 campaign itself, there is no simple answer, there is no

    25 simple approach to this case, because there is no

  11. 1 simple, single issue. So it must be that the Court

    2 will have to look at material starting at the beginning

    3 and working its way through to the end. Recognising

    4 that, we've presented our material to the Court, so far

    5 as we've been able, and we will call evidence so far as

    6 we are able, in a chronological order, for we judge

    7 that will assist the Court more than having the

    8 material in any other way.

    9 Before I turn to the facts themselves, we

    10 have provided a small clip of maps that we thought

    11 might be of some assistance to the Court in opening.

    12 I've shown them to Mr. Smith, and I don't believe there

    13 is any objection to them being made available. Can I

    14 make them available through the usher to the Court

    15 now?

    16 As to numbering of exhibits, and in respect

    17 of this exhibit perhaps alone, can I ask that its

    18 numbering be deferred, for this reason: An exhibit

    19 list has been prepared; there have been some problems

    20 with the final version of it and getting the computer

    21 numbers right, and if we could postpone giving this

    22 small exhibit a number until perhaps the session that

    23 will follow my opening address, I would be very

    24 grateful.

    25 The maps probably reveal to the Court no more

  12. 1 than it already knows, the first map simply showing the

    2 former Yugoslavia and the location of Bosnia and

    3 Herzegovina, one of its constituent federations, the

    4 second map showing the relevant opstina boundaries

    5 outlined in yellow with which in this indictment the

    6 Court will be concerned.

    7 Starting at the bottom of the yellow

    8 markings, Novi Travnik -- I'm so sorry. Is it missing

    9 from Judge Robinson's ...

    10 I'm sorry, it should always be possible to

    11 tell whether the Court is with one with the document,

    12 but the television screens sometimes get in the way.

    13 Novi Travnik, towards the left, Vitez,

    14 Busovaca, and Kiseljak in a line, Zenica above, and

    15 Zepce above that, with Vares separated and to the

    16 right.

    17 The third map, viewed the other way -- and

    18 I'm afraid the internal boundaries are rather stronger

    19 than one would like and tend to a degree to mask the

    20 roads and the towns; nevertheless, we can see the

    21 important towns all marked on this map, starting at the

    22 left with Travnik, and underneath Travnik, on one of

    23 the dividing black lines, Pucarevo, which I think is to

    24 be referred to in this trial more often as Novi

    25 Travnik. To the right of that -- and I trust the Court

  13. 1 can see that; it's a little hard to see -- to the right

    2 of that, Vitez. Further to the right, Busovaca. Then

    3 above that, Zenica and Zepce, and then over to the

    4 right, the municipality of Vares.

    5 I needn't trouble the Court probably at all

    6 in opening with the town maps, but they will be

    7 available for use later. I think they are more likely

    8 to be useful with individual witnesses at a later

    9 stage.

    10 Bosnia has a long and indeed fascinating

    11 history. In due course, historians will be called, and

    12 insofar as it's helpful to the Tribunal, evidence of

    13 the relevant history will be before you, and I make

    14 this point about our role as prosecutors in this case.

    15 Our role as prosecutors is to lay before this Tribunal

    16 the evidence that covers the topic, and to advance the

    17 arguments that justify conviction on this indictment.

    18 Those we perceive to be our duties.

    19 So far as opening this case is concerned, I

    20 need for purposes of history go no further back than

    21 1939, and on page 1 of the chronological schedule that

    22 was an attachment to the pre-trial brief, the Court

    23 will know that between 1939 and 1941, by an agreement,

    24 the state of Croatia was enlarged, perhaps to the

    25 largest size it has ever been historically, by the

  14. 1 incorporation or creation of an area called the

    2 Banovina, and that enlarged state features

    3 significantly in what is to follow. The Tribunal will

    4 then know that there was another government between

    5 1941 and 1945. It went by the name of the Independent

    6 State of Yugoslavia.

    7 MR. SMITH: Objection, Your Honour.

    8 JUDGE MAY: Well, Mr. Smith, it's a bit early

    9 for an objection. What is it?

    10 MR. SMITH: I apologise, Your Honour, for

    11 taking up your time, but my duty compels me to object

    12 to references to the government during this time. We

    13 have in our reply brief indicated that we thought that

    14 government is irrelevant. It was a government

    15 answering to an independent and different country at

    16 this time and not involved in this matter. And we

    17 believe it is highly prejudicial under Rule 89(A). It

    18 was put into the Prosecutor's chronology. We objected

    19 in our restatement of the chronology. We believe that

    20 it is an unnecessary and irrelevant and highly

    21 objectional reference, Your Honour.

    22 (Trial Chamber deliberates).

    23 JUDGE MAY: No, Mr. Smith, we're against you

    24 at this stage. The Prosecutor must be entitled to

    25 outline his case as he thinks fit. If there is

  15. 1 evidence to which you object on the grounds of being

    2 prejudicial or something of the sort, of course we will

    3 rule on it. But this isn't an appropriate time to give

    4 a ruling of that sort.

    5 Yes, Mr. Nice.

    6 MR. NICE: Indeed, I've said all that I need

    7 to say and wanted to say about that government at this

    8 stage. I will refer to it briefly again later on.

    9 We can then move right up to the 1990s. The

    10 focus of our first attention is not on Bosnia, but in

    11 Croatia. Of course, as the Court will know from its

    12 prereading of papers, this case has as one of its

    13 elements the fact that there was close contact between

    14 President Tudjman of Croatia, or others in Zagreb, and

    15 those with whom the Court is concerned in this case.

    16 It will also know that, of course, the contribution by

    17 Croatia of armed forces in the matter with which you

    18 are concerned is an element that goes to proving an

    19 international armed conflict in this case, but I'll

    20 return to that if necessary in the opening or certainly

    21 later in the evidence.

    22 In 1989, in Croatia, the HDZ, a nationalist

    23 Croatian party, was formed, and Franjo Tudjman was the

    24 leader. He drafted the programme for the party which

    25 was nationalistic in tone and asserting the right of

  16. 1 Croatian people to self-determination within their

    2 historic borders. It may be that the proper inference

    3 to draw is that "historic borders" referred back to

    4 that enlarged state, the Banovina, between 1939 and

    5 1941, to which I have already referred.

    6 In April and May of 1990, in Croatia,

    7 multiparty elections occurred, and Tudjman became

    8 president, with a man called Stipe Mesic as prime

    9 minister. Following its successes in Croatia, the HDZ

    10 as a party extended its activities into Bosnia and

    11 Herzegovina and indeed founded a party with that name

    12 on the 18th of August in Sarajevo. We can pass on the

    13 chronology to the second sheet.

    14 The goals of that party, the local party, the

    15 Bosnian party, were stated to be continued respect for

    16 continued coexistence of different ethnic groups in

    17 Bosnia, but those expressed intentions will have always

    18 to be put beside some clear expressions that were to be

    19 forthcoming, as the Court may decide, of an intention

    20 to be part of a greater Croatia.

    21 If we look at page 2 of the chronology, the

    22 Court will observe that in Bosnia-Herzegovina, in

    23 November of 1990, there were elections in which the HDZ

    24 of Bosnia-Herzegovina took part, obtaining a little

    25 under 20 per cent of the seats, and then joining a

  17. 1 coalition of the three parties, each nationalistic, one

    2 representing Serbs, one Croats, one Muslims, presided

    3 over by a seven-man presidency with Izetbegovic at its

    4 head. As early as those elections, the defendant

    5 Kordic, who had previously been active in the Communist

    6 Party, was described as a leading figure in the

    7 Busovaca municipality.

    8 In March of 1991, Tudjman and Milosevic met

    9 to discuss the partition of Bosnia-Herzegovina between

    10 Croatia and Serbia, with little left for the Muslims.

    11 On the 25th of June of 1991, the Croatian

    12 legislature voted overwhelmingly for independence, as

    13 did a number of the constituent states of the former

    14 Yugoslavia, Slovenia.

    15 On the 21st of July of 1991, there was a

    16 meeting in Busovaca chaired by the first defendant, and

    17 if the Court would go in the supporting documents to, I

    18 think it's actually the very first page, I will draw

    19 your attention to just a few features of this first

    20 meeting.

    21 The page numbering system that I propose to

    22 use for the purpose of opening is to use the page

    23 numbers put on by the registry. They are, of course,

    24 in reverse order, for a reason I have not

    25 quite fathomed, but they start in our bundle at page

  18. 1 5818 at the top, and it is to those numbers that I

    2 shall be referring.

    3 This meeting, we can see two-thirds of the

    4 way down page 5818, was presided over by Dario Kordic,

    5 and over at page 5817, there is reference in paragraph

    6 4 to the then president of the party, a man called

    7 Stjepan Kljujic, of whom you will hear more. Stjepan

    8 Kljujic was a man concerned to maintain integration of

    9 all parties within Bosnia. He was, by the terms of our

    10 days, a moderate. He wasn't to last very long in his

    11 role as president of this party. You will see comments

    12 about him in paragraphs 4 and 5.

    13 Over the page at 5816, paragraphs 17 and 18,

    14 the meeting agreed to urge Croatian population,

    15 paragraph 17, in the Travnik and Herzegovinian

    16 municipalities, to join the Croatian regional union of

    17 Bosnia-Herzegovina, and in order to protect Croatian

    18 interests, it is set out, that an initiative had been

    19 launched on the part of the Travnik region to establish

    20 the Croatian National Council of Bosnia-Herzegovina

    21 because of the paralysis in the performance by the BiH

    22 official authorities.

    23 At 5815, it went on to say:

    24 "The Croatian National Council will perform

    25 a function of authority in the interests of Croatian

  19. 1 people in a given area."

    2 The document is signed by two men, Kostroman,

    3 the administrative secretary, and Dario Kordic as the

    4 chairman.

    5 From that document, if the Court would turn

    6 over to page 3 of the chronology, on the 30th of July

    7 of 1991, the first defendant was appointed coordinator

    8 of the Travnik regional community of the party.

    9 Summarised, he was already a young man, and like

    10 everybody else of this party, a recent member of the

    11 party; he was chairing effectively half of the area for

    12 the party with which you are concerned, it would

    13 appear.

    14 I make this point by way of a general

    15 observation: How is it that people younger than might

    16 be expected achieve high office in organisations?

    17 Sometimes it is because they are truly brilliant.

    18 Sometimes it is because, by being in at the ground

    19 floor, you can get on the escalator earlier. Sometimes

    20 it is because you are patronised and championed by

    21 someone of importance. All those issues may fall for

    22 determination by this Chamber in due course.

    23 On the 13th of August of 1991, at page 5811

    24 in your papers, and in the course of a meeting held in

    25 Busovaca of the regional party, the Travnik regional

  20. 1 party, you will see that -- I beg your pardon, page

    2 5810 -- you will see in paragraph 3 that the behaviour

    3 of Stjepan Kljujic, the president, in relation to

    4 matters that had happened earlier, was judged

    5 unbefitting and unacceptable. He skillfully managed to

    6 avoid discussion on the decisions of the Travnik

    7 regional community. He was called on to explain his

    8 behaviour.

    9 If you will be good enough to turn over to

    10 5508, remembering, of course, that all that is going on

    11 is going on against the background of warfare

    12 elsewhere, generated, it may be, by the Serbs.

    13 Paragraph 12:

    14 "Every municipality board must organise

    15 itself for defence, and in doing so, coordinate its

    16 activities with the unified defence system of the

    17 Croatian nation."

    18 The chairpersons for this meeting were Mate

    19 Boban, a man called Udovicic, and the defendant Kordic

    20 who was Boban's cousin and to whom he was close.

    21 Back, please, to the chronology, and over to

    22 page 4. On the 8th of October of 1991, the joint

    23 presidency of the State of Bosnia-Herzegovina and a

    24 crisis staff committee of the party met. Page 5782 of

    25 your papers refers, and again I think we shall start at

  21. 1 -- yes, 5782, if we look at paragraph 4, we can see

    2 the unfolding intentions of the party.

    3 "The Croatian Democratic Union of Bosnia and

    4 Herzegovina shall continue to advocate an independent

    5 and indivisible Bosnia and Herzegovina if that is

    6 possible, but in the event of the break-up of Bosnia

    7 and Herzegovina our RECOMMENDATION to the leaders of

    8 the Muslim people is after the secession of the

    9 so-called Serbian territories in Bosnia and Herzegovina

    10 that the Muslims remain together with the Croats

    11 territorially, and that we link our territories with

    12 the Republics of Croatia and Slovenia confederally or

    13 by treaty."

    14 Over the page, paragraph 6:

    15 "As regards the policies of the SDA and the

    16 Muslim population in Bosnia and Herzegovina, the

    17 Croatian people in Bosnia and Herzegovina are

    18 INSTRUCTED not to contribute in any way to strains in

    19 relations with the Muslims; however, they should know

    20 that the Croatian Democratic Union of Bosnia and

    21 Herzegovina is developing its own policies and

    22 activities independently.

    23 "Where circumstances allow, a defence system

    24 should be developed jointly with the SDA, but even in

    25 those environments it is essential to develop

  22. 1 contingency plans for the independent defence system of

    2 the Croatian people and its territories."

    3 This document, 5779, reveals, signed by

    4 Kostroman and by Stjepan Kljujic.

    5 On the 4th of November, at your page 5773, is

    6 the record of a meeting of the Travnik regional

    7 community, presided over, and the note's signed by,

    8 Dario Kordic, as the regional community's president.

    9 At page 5773, we see this:

    10 (1) It was stated that Stjepan Kljujic,

    11 President of (the party), was not present, although he

    12 had been duly and timely invited to the meeting.

    13 (2) Conclusion --"

    14 And then there's reference to a document that

    15 I cannot lay before you.

    16 "... sent to Dr. Franjo Tudjman, was

    17 unanimously supported. Members of the Croatian

    18 Regional Community of Travnik promised to respect the

    19 secrecy of this information."

    20 There will, in due course, be evidence before

    21 this Tribunal of the regular contacts that there were

    22 between those in this part of Bosnia and Zagreb,

    23 including contacts by the first defendant himself.

    24 At page 5767, there is a letter sent to

    25 Mr. Kljujic by Dario Kordic, and it reads:

  23. 1 "Following our telephone conversation of

    2 5 November ... when I was put through to you by General

    3 Secretary Ivan MARKESIC, and when you told me in a

    4 thirty-second speech and I quote 'KORDIC, if you do not

    5 appear in my office tomorrow at 8 o'clock, you will be

    6 brought in by the police' --"

    7 I am sorry to the interpreters for speaking

    8 too fast.

    9 "-- I am sending you the following

    10 response: By the time you receive this fax, you will

    11 probably be familiar with the written conclusions

    12 reached at the meeting of the Travnik Regional

    13 Community held in Busovaca on 4 November, fully

    14 supporting all the clear and unambiguous positions of

    15 the Travnik Regional Community.

    16 "As we no longer live in a time of

    17 uniformity of view and blind obedience, I feel

    18 compelled to remind you that your position as President

    19 in the BH HDZ implicitly carries the obligation of

    20 living and acting among the party membership and

    21 respecting the wish of the responsible representatives

    22 of the Croats of this area that you finally attend at

    23 least one meeting of the Travnik Regional Community. I

    24 wish to inform you that the most responsible Croatian

    25 representatives of the municipalities of the Travnik

  24. 1 Regional Community have not given me the authority to

    2 speak with you personally and particularly not

    3 tete-a-tete about the fate of our people, but if you

    4 persist with inappropriate threats and ultimatums on a

    5 meeting, it may take place, but only with all the

    6 leaders of the Travnik Regional Community in

    7 Busovaca."

    8 Signed by Mr. Kordic and sent to all

    9 representatives of the HDZ Travnik Regional Community.

    10 In due course, the Tribunal may have to

    11 decide whether what was soon to happen so far as

    12 Mr. Kljujic was concerned reflected his own

    13 shortcomings or was the result of his being a moderate

    14 and there being those who wished to supplant him and

    15 replace him.

    16 On the 12th of November of 1991, at Grude,

    17 there was a meeting of the Travnik Regional Community.

    18 The following pages in your core documents reveal the

    19 record or the conclusions, starting at 5765. I think

    20 perhaps, in accordance with the hint from the Court and

    21 indeed with my own inclinations, this is a document

    22 that should go on the ELMO because I am going to read

    23 it effectively in full, and if arrangements can be made

    24 for that to happen, I would be grateful.

    25 Your Honour, if we have, in any way, failed

  25. 1 in our duties to the staff of your court in preparation

    2 of documents, matters of that sort, I can only

    3 apologise and say that we are, of course, feeling our

    4 way as practitioners within this room.

    5 This is, of course, an English translation.

    6 It reads as follows, in the middle of the page:

    7 "On 12 November 1991 in Grude, a working

    8 meeting was held of the presidents of the crisis staffs

    9 of the Herzegovina Regional Community and the

    10 presidents and representatives of the crisis staffs of

    11 the Travnik Regional Community."

    12 That is probably the two halves overall of

    13 this body with which we may be concerned.

    14 "The meeting was chaired by Mr. Mate Boban,

    15 Vice-President of the (party) for Bosnia and

    16 Herzegovina and Vice-President of the HDZ Crisis Staff

    17 for Bosnia-Herzegovina. Co-chair was Mr. Dario Kordic,

    18 Co-ordinator of the Travnik Regional Community. After

    19 a several hour discussion and analysis of the political

    20 and security situation in Bosnia and Herzegovina,

    21 Croatia and the former Yugoslavia, the participants

    22 reached the following conclusions:

    23 1. The Herzegovina Regional Community and

    24 the Travnik Regional Community reaffirm the conclusions

    25 reached at their respective separate sessions that the

  26. 1 Croatian people of these regions and in all of Bosnia

    2 and Herzegovina continue to support the unanimously

    3 approved declarations and conclusions adopted in the

    4 agreements with President Dr. Franjo Tudjman on 13 and

    5 20 June 1991 in Zagreb. On the basis of the

    6 conclusions of the above-mentioned meetings and

    7 agreements in Zagreb, the separate conclusions --"

    8 And they're listed."

    9 " -- and unanimously adopt the decision that

    10 the Croatian people in Bosnia and Herzegovina must

    11 finally institute a decisive and active policy in order

    12 to bring about our age-old dream - a common Croatian

    13 State.

    14 "In order for this historical goal to become

    15 our reality in the near future, the two regional

    16 communities call for the formulation and declaration of

    17 legal and political documents (the proclamation of a

    18 Croatian banovina/entity in Bosnia and Herzegovina, the

    19 organisation of a referendum to join the Republic of

    20 Croatia ...) as the initial phase leading towards the

    21 final solution of the Croatian question and the

    22 creation of a sovereign Croatia within its ethnic and

    23 historical (currently possible) borders."

    24 As we turn to the second page, the Court will

    25 immediately see why I reminded you of the state of

  27. 1 affairs between 1939 and 1941 when the Banovina

    2 existed.

    3 On the second page, paragraph 2:

    4 "2. Forces opposed to the historical

    5 interests of the Croatian people in Bosnia and

    6 Herzegovina still exist within the leadership of the

    7 HDZ for Bosnia-Herzegovina. These forces advocate a

    8 sovereign Bosnia and Herzegovina which does not exist

    9 and in which Croatian people would be condemned to a

    10 genocide and to disappearance from the history. For

    11 that reason, the two regions are calling for decisive

    12 action which our people expect and for which they

    13 wholeheartedly embraced the HDZ. The representatives

    14 of these municipalities believe that continued waiting

    15 in silence would weaken our positions both among our

    16 own people and at the international level. We must

    17 show to Europe and to the world which territories in

    18 Bosnia and Herzegovina are Croatian and where our

    19 future lies. Under no conditions shall these people

    20 accept any other solution except the one within the

    21 borders of a free Croatia.

    22 3. In order to implement the conclusions

    23 contained in the first two points of these Conclusions,

    24 we must:

    25 (a) Clearly define the HDZ party policy in

  28. 1 Bosnia and Herzegovina, strengthen our membership, and

    2 select the individuals able to complete these tasks.

    3 (b) Initiate the political and legal action

    4 at the domestic and international level.

    5 (c) Make even better military preparations

    6 for a conflict with all the forces which may try to

    7 halt this inevitable process of the creation of a free

    8 Croatian State.

    9 (d) Decisively pre-empt any public or secret

    10 activity within the leadership of the HDZ for

    11 Bosnia-Herzegovina which may oppose these decisions or

    12 be damaging to them in any way."

    13 Then it is signed.

    14 The Court may conclude that the reference to

    15 "forces opposed to the historical interest" was

    16 reference to the moderates and perhaps to Mr. Kljujic;

    17 the Court may note now or later that in this particular

    18 document, there is no reference to the Serbs as the

    19 particular enemy nor any particular reference to the

    20 Muslims and to the needs for co-existence.

    21 The Court may also think that in (a), (b),

    22 (c), and (d), the document sets out in large measure

    23 what was, in due course, to happen, and the creation of

    24 the appropriate bodies and in military preparation.

    25 Not long after that, on the 18th of November

  29. 1 of 1991, a body was created to take things further.

    2 The meeting was at Grude, and you can see reference to

    3 it at page 5757. What happened was that a community

    4 was established, at this stage described as a

    5 community, and known as Herceg-Bosna. You can see that

    6 at the top of page 5757: "on establishing the Croatian

    7 Community of Herceg-Bosna."

    8 Article 1 is, on this copy, I'm afraid,

    9 partly illegible, but Article 2 explains that "The

    10 Croatian Community of Herceg-Bosna shall be composed

    11 of," and then it lists a number of municipalities.

    12 Included in them Vitez, Novi Travnik, Travnik,

    13 Kiseljak, but also Vares, and going down to the south,

    14 Mostar and other places.

    15 Article 3 says that "Mostar shall be the seat

    16 of (this Community)."

    17 Article 5 says that "The Community shall

    18 respect the democratically elected government of the

    19 Republic of Bosnia-Herzegovina as long as

    20 Bosnia-Herzegovina remains an independent state in

    21 relation to the former or any future Yugoslavia."

    22 Article 7 says that "The supreme authority of

    23 the Community shall be the Presidency, comprising the

    24 most senior representatives of the Croatian people in

    25 the municipal authority or presidents of the Croatian

  30. 1 Democratic Union municipal boards.

    2 "The presidency shall elect the president,

    3 two deputy presidents and the secretary."

    4 So the Community of Herceg-Bosna, a

    5 quasi-state maybe, is formed, and it may well be that

    6 at this meeting you will hear evidence of a

    7 representative coming from Croatia itself to

    8 participate.

    9 We go over in the chronology of events to

    10 page 6. We have now passed through 1991 with the

    11 development of the party, with the rise of Mr. Kordic

    12 in that party, with dissatisfaction with the moderate

    13 leader of the party, and now with the establishment of

    14 this new freestanding community.

    15 On page 6 -- Your Honour, just give me one

    16 minute -- before we come to page 6, let me say this:

    17 At the end of 1991, we mark the beginning of the period

    18 covered by this indictment in specific counts, and so

    19 something of a stock-take, beyond that which I have

    20 already given you, is appropriate.

    21 Judging by the pre-trial beliefs served by

    22 the Defence, amongst the issues that you want to have

    23 in mind from this point forward include, in relation to

    24 the first defendant, Kordic, whether he, as we will see

    25 he was to become, vice-president of Herceg-Bosna, was

  31. 1 within or outside the chain of command of the military

    2 that was in due course to be developed, the HVO. We

    3 will come to that shortly.

    4 You will be concerned with the extent of his

    5 true factual military role and power. For whatever the

    6 constitutional position, the reality is that he was

    7 often to be found in uniform and, as we shall see,

    8 often making decisions of a military nature. As the

    9 other half of that, was he only concerned with matters

    10 of logistics, administration, or being a spokesman?

    11 So far as the second defendant, Mario Cerkez,

    12 is concerned, was he, when appointed, a commander for

    13 the Vitez area generally, or was he just in charge of a

    14 small unit within it?

    15 Page 6, then, of the chronology, takes us

    16 over the turn of the year, with President Tudjman's

    17 press conference emphasising the need to solve the

    18 problem of Croatia in the way the Banovina was solved.

    19 Then in Busovaca, on the day following the recognition

    20 of Croatia by the European states, the European

    21 Community, there was a celebration at the cultural club

    22 where Kordic and Kostroman both made speeches. If our

    23 preparations have been proper, it should now be

    24 possible to play you at least part of the video that

    25 was made, a hand-held video, an amateur video, of that

  32. 1 meeting.

    2 (Videotape played).

    3 THE INTERPRETER: This splendid and

    4 magnificent rally was worth shedding litres of blood

    5 and sweat for, to experience this dream finally which,

    6 for nine centuries, was just a dream for the Croatian

    7 people: An independent sovereign -- inaudible -- tens

    8 of thousands and -- state of Croatia. If last night we

    9 feared perhaps that there would be no marking or

    10 celebrating here in Busovaca, many were deceived. The

    11 Croatian spirit lives here in Busovaca. This evening

    12 is proof that the Croatian people in Busovaca is also

    13 part of the united Croatian nation --

    14 MR. NICE: Your Honour, I am happy to stop

    15 the tape there for this reason. The Court will in due

    16 course hear the tape in full. It will then have the

    17 advantage of a full transcript of what was said and

    18 will be able to consider it at greater leisure. I

    19 don't believe you have a transcript within your papers,

    20 and can I just tell you one or two of the things that

    21 were said and make a couple of points about this

    22 meeting.

    23 First, in the passage that I think preceded

    24 where the interpreters picked up this morning, and

    25 that's no doubt my fault in not getting things properly

  33. 1 teed up, there are certainly two references in the

    2 speeches by the first defendant to the independent

    3 state of Croatia, which was indeed the name of the

    4 state that existed between 1941 and 1945. There was

    5 reference, as you can see, to the magnificent rally,

    6 how it was worth shedding litres of blood and sweat for

    7 the dream of centuries to become true. There was

    8 further reference of gratitude to the German nation and

    9 to the German state, which will have to be interpreted;

    10 of course, Germany had been or may have been the first

    11 country to recognise the position of this party and of

    12 the independence of Bosnia.

    13 But in the second speech, which we didn't

    14 show any part of but which you will see in due course,

    15 where Kostroman was speaking, he made this point. He

    16 said: "As for the remaining population in our areas,

    17 the question asked is, "What about the Muslims, what

    18 about the Serbs and everyone else?" We can say to

    19 them, let them not worry about anything, let them live

    20 in our state of Croatia and no one will miss even a

    21 hair on their heads if they accept us as their brothers

    22 and accept the fact that they will be citizens of the

    23 state of Croatia."

    24 There were indeed Muslims present in the hall

    25 on this occasion in Busovaca, although the audience of

  34. 1 Croats was drawn more widely than just from that town.

    2 Even those who were not present soon got to learn of it

    3 as an event, and indeed the videotape that we've just

    4 seen in part was seen by others, and to them it was an

    5 alarming display, unsettling, creating fear, and

    6 forecasting, the Court may ultimately decide, exactly

    7 what was to come.

    8 If we can return, please, to the chronology.

    9 Without troubling you with the documents themselves, on

    10 the 25th of January, there was an apparent resignation

    11 by the first defendant from his position as deputy

    12 president of the newly formed body of Herceg-Bosna to

    13 which he had apparently been appointed. His

    14 resignation was expressed to be by reason of the fact

    15 that representatives of the people weren't making

    16 enough effort, and so on. The letter was addressed to

    17 Boban. But it seems not to have been effective, and

    18 indeed was rejected on the 27th of January; and whether

    19 it was a real and genuine resignation or whether it was

    20 all part of an overall aim at reaching more power and

    21 authority will be for the Tribunal to decide.

    22 It was rejected, and on the 29th of January

    23 of 1992, page 5733 in your papers, and as part of a

    24 decision made on the 29th of January at Grude, we see

    25 the developing power of the institutions that had been

  35. 1 created. Just to remind ourselves, first the party,

    2 then the community of Herceg-Bosna, and at page 5733,

    3 at the foot of the page, heading "Re-examination of

    4 Staff Appointments."

    5 "The competent bodies of the HDZ of BH are

    6 to immediately collect written approvals from the HDZ

    7 municipal boards responsible for all staff on a local

    8 level appointed to represent the HDZ of BH. Those who

    9 do not receive the approval must immediately have

    10 dismissal procedures initiated against them, while the

    11 appointment of new staff should proceed according to

    12 the regulated procedure. A candidate who is not a

    13 member of the party cannot be appointed to a post in

    14 the bodies of the Republic." So the party was

    15 strengthening its grip.

    16 Over the page, please, to page 7 of the

    17 chronology. On the 28th of February of 1992, we have

    18 either the first or an early record of Mr. Kordic's

    19 involvement in apparently military matters. On this

    20 occasion, a report from the European monitors dealing

    21 with a roadblock that then existed in Donja Puticevo,

    22 recorded dealing with the first defendant and there

    23 being present a large number of uniformed men in

    24 Croatian camouflage uniforms with Croatian cap symbols

    25 and arm badges with "HOS," a unit operating in that

  36. 1 area, clearly marked.

    2 Shortly after this, and following a

    3 referendum, on the 6th of March, Bosnia and Herzegovina

    4 declared its independence, and that was ultimately

    5 recognised by Europe and the United States. And there

    6 is then a record from a newspaper on the 6th of March

    7 of somebody, a man called Skravan, recording that he

    8 had been told by Kordic and a man called Stipac that

    9 they were working to create a Croatian republic and

    10 that Kordic had showed the areas of the parastate, or

    11 that the parastate was to seize, if necessary, by force

    12 of arms.

    13 Mr. Kordic of course is shown as having no

    14 military training of any kind, but over the page, at

    15 page 8, on the 9th of March, he was identified as a

    16 colonel in the report of a press conference.

    17 On the 15th of March, Kljujic, the moderate,

    18 was ousted, the formal completion of his being ousted

    19 being revealed a little later. On the 17th of March

    20 there was a decision made at a meeting of leaders of

    21 the municipal boards of Zenica, Busovaca, Vitez, and

    22 Travnik that as a municipality bordering on the

    23 municipalities of Herceg-Bosna, Zenica was now also to

    24 be included in its defence system. So the community

    25 was becoming larger.

  37. 1 On the 21st of March -- this deals with what

    2 true role the defendant Kordic had -- bears the record

    3 and indeed the paper showing a request to the Ministry

    4 of Defence of Croatia for a meeting between various

    5 parties to be attended by, amongst others, the first

    6 defendant. So was he just dealing with publicity and

    7 matters of logistics, or was he fully active in all

    8 affairs of the developing Herceg-Bosna?

    9 At the foot of this page, on the 7th of

    10 April, when Croatia recognised Bosnia and Herzegovina

    11 as an independent state, it offered all Bosnian Croats

    12 dual nationality. That may have had at least two

    13 effects. It may more likely have secured the position

    14 of President Tudjman if, as he judged, these would be

    15 voters sympathetic to his cause; and of course it may

    16 have encouraged whatever ambitions there lay in the

    17 hearts of Croatian residents within Bosnia and

    18 Herzegovina to be linked to the Croatia state itself.

    19 On the 8th of April of 1992, the presidency

    20 of that parastate or quasi-state, Herceg-Bosna, set up

    21 the Croatian Defence Council, the HVO, as the supreme

    22 defence body of Herceg-Bosna. If we go over to page 9

    23 of the chronology, the order signed by Mate Boban

    24 stated that it was the only legal body with command

    25 over defence forces; that the HVO main staff will

  38. 1 communicate only with municipal HVO staffs; and that

    2 all other military formations in HZ-HB are either

    3 illegal or hostile, and other names will be removed

    4 from official use, so that within this community

    5 established by the party, there is now a body having a

    6 near monopoly, or a monopoly, of power and control.

    7 Three entries further down, you'll see the

    8 first reference to the second defendant, Mario Cerkez.

    9 His entries on this schedule remain identified by the

    10 use of italic script. A crisis committee in the spring

    11 of 1992, evidence will reveal, was created, and Cerkez

    12 was one of the members of that, along with five

    13 Muslims, and it held meetings during which he was a

    14 participant.

    15 On the 3rd of May of 1992, in Busovaca, we

    16 will see that there were orders signed by Kordic, this

    17 one in particular, and I needn't take you to it. It is

    18 significant perhaps only because he signed over an HVO

    19 stamp. If the issue is that he was never a member of

    20 the HVO and had no real function in the HVO, why,

    21 amongst other things, was he signing documents in the

    22 ways he was to sign them -- and we'll see many of them

    23 -- and why here was he signing over an HVO stamp?

    24 In early May he was seen by witnesses, or

    25 one, certainly, dressed in HVO uniform. Later, three

  39. 1 entries up from the bottom of this page, with many

    2 soldiers, HVO soldiers, he visited the factory in Novi

    3 Travnik in order to enforce his request for some rocket

    4 launchers. Dressed in uniform at the time, he secured

    5 his desire, and the launcher was driven off in the

    6 general direction of Gornji Vakuf.

    7 Similarly, last entry on this page, in the

    8 Travnik Technical Maintenance Institute, he was found

    9 visiting with HVO troops, requesting equipment for the

    10 HVO, dressed in uniform, or at any event wearing the

    11 HVO insignia.

    12 These developments in Busovaca associated

    13 with rising concern amongst the Muslims, soon to face a

    14 significant change in the order of their lives.

    15 At page 10 of the chronology, and at page

    16 5688 of your documents, on the 10th of May, apparently

    17 from Busovaca, an order was pronounced, signed, as we

    18 can see, on the following page, 5687, by Dario Kordic

    19 as HVO vice-president and another person as commander

    20 of the municipal HVO. An order was signed of 18

    21 paragraphs which may have become imprinted on the minds

    22 of Muslim residents.

    23 At paragraph 1, it said that, "The agreement

    24 between the HVO and the so-called Busovaca TO on the

    25 distribution of weapons is hereby terminated ..."

  40. 1 There had, until this stage, been some

    2 agreement between Croats and Muslims, who of course for

    3 long enough had been fighting a common foe and fighting

    4 together; it's one of the complexities of this whole

    5 history, of which no doubt this Tribunal is in part or

    6 substantially aware, they had been fighting

    7 collectively, and there had been agreements about the

    8 sharing of weapons. In any event, that agreement was

    9 terminated.

    10 "... it has been decided that the Busovaca

    11 HVO forces take over all weapons, equipment, material,

    12 as well as the barracks.

    13 "2. The town of Busovaca is to be completely

    14 blocked from all sides.

    15 "3. All paramilitary formations (the

    16 so-called TO), individuals and others are given the

    17 ultimatum to hand over all weapons in their possession

    18 by Sunday 1200 hrs, or to place themselves under HVO

    19 command, which includes the wearing of HVO insignia.

    20 "4. Until all previously set conditions are

    21 fulfilled, no HVO representative has the right to

    22 negotiate with representatives of the so-called TO and

    23 the Patriotic League."

    24 "5. A warrant of arrest is issued," and

    25 three names are given. Prominent Muslims were

  41. 1 arrested, two of them, I think, just for a day or so;

    2 one of them for rather longer, and not leaving without

    3 injury as a result of beatings.

    4 Over the page.

    5 "7. The mobilisation of all Busovaca HVO

    6 forces is to be completed."

    7 10, a curfew.

    8 15 and onwards.

    9 "The PTT building is to be taken over and

    10 used by the HVO." Indeed, that became the first

    11 defendant's base. He had premises there in the

    12 basement.

    13 "16. Weapons and HVO uniforms shall be

    14 seized from combatants who refuse to consistently carry

    15 out the order in any way.

    16 "17. Protection of vital town facilities and

    17 houses belonging to the families of the HVO leaders is

    18 to be reinforced.

    19 "18. This order is to be handed to the

    20 commander of the nonexistent TO of Busovaca ... by a

    21 messenger. The receipt of the order is to be signed."

    22 This order, the ultimatum to hand over

    23 weapons, the arresting of leading Muslims and their

    24 detention, constituted a take-over of the town of

    25 Busovaca.

  42. 1 From that time and until the end of the year

    2 of 1992, residents of that town, from whom you will

    3 hear, had to live with that reality and the limitations

    4 it imposed on them.

    5 On the 19th of May, page 5686 in your

    6 documents, please, we see further examples of the

    7 authority which now existed in the first defendant. On

    8 the 19th of May, he was giving a movement permit to

    9 somebody to move across the territory of Herceg-Bosna

    10 and the Republic of Croatia. He was being permitted to

    11 carry weapons, and HVO checkpoints were ordered to

    12 allow him unfettered passage. Signed for the regional

    13 staff of the Central Bosnia HVO by Dario Kordic.

    14 The following page in your papers, page 5685,

    15 an order signed -- incidentally, there's an error here,

    16 I'm almost certain, because we only have the English

    17 version, but if you look at the foot of the page, it

    18 says that Dario Kordic signed as president of the

    19 Croatian Community. I think that should read

    20 "vice-president," and the word "pro," or the letters

    21 "pro," that was probably hidden under a stamp or

    22 something in the original text has been cut out. It is

    23 vice-president; there is no change there.

    24 This document, this order recalled in

    25 paragraph 1:

  43. 1 "... the HVO forces in Busovaca are ordered

    2 to guard the important buildings of the municipal

    3 territory in the future, according to the order of the

    4 commander of the Busovaca HVO municipal command." It

    5 sets out the curfew in paragraph 2.

    6 In paragraph 3, it says this:

    7 "All workers of the governmental bodies of

    8 Busovaca Municipal Assembly, workers of all companies

    9 and institutions ... and the public security service,

    10 (except for individuals who do not wish to submit

    11 themselves to the HVO command)." And it then sets out

    12 what those people are to do. But if people do not

    13 report for work, they will lose their jobs -- that

    14 comes towards the end of that paragraph -- so that jobs

    15 were now for members of the HVO. You will be hearing

    16 from witnesses of the loss of jobs, or sometimes, I

    17 think, just the diminution of status, but the loss of

    18 jobs by Muslims who were being cut out of their former

    19 life in this particular municipality.

    20 Over the page -- I see the time, and I don't

    21 know to what extent the Court is flexible; I'm --

    22 JUDGE MAY: Is that a convenient time?

    23 MR. NICE: Neither more nor less convenient

    24 than any other time.

    25 JUDGE MAY: Very well. We will adjourn now

  44. 1 for 20 minutes.

    2 --- Recess taken at 11.20 a.m.

    3 --- On resuming at 11.40 a.m.

    4 JUDGE MAY: Yes, Mr. Nice.

    5 MR. NICE: I think it is now clear that my

    6 estimate of concluding this morning was optimistic.

    7 Nevertheless, I hope I won't go too far into the

    8 afternoon. But I think it's an inevitability.

    9 I got us, I think, to page 5684 in the

    10 papers, which was an order for some equipment for

    11 Busovaca units. The significance of it again, that

    12 he's signing for the regional HVO staff of Central

    13 Bosnia, that on the 27th of May.

    14 JUDGE MAY: You dealt, in fact, with 5685.

    15 MR. NICE: I'm so grateful, yes. In which

    16 case then, this would be the next one, and its simple

    17 significance is the signature at the bottom, and I can

    18 pass on quite swiftly.

    19 On page 5683, there is yet another order,

    20 again signed in a similar way, and at 5681, an order,

    21 in these terms:

    22 "The Municipal Headquarters of the HVO in

    23 Vares is hereby ordered to send a unit of 30 soldiers

    24 immediately on receipt of this order to protect the

    25 village of Tarcin Do because there is an immediate

  45. 1 danger of the Chetniks attacking the village."

    2 The Court will have in mind that, of course,

    3 Vares is the separate community, the other side, I

    4 think, of Serb presence on the ground, and the Court

    5 will be interested, as we develop the case, to see the

    6 recurring communications between the first defendant

    7 and Vares. In any case, he signs this document again

    8 as vice-president of the HVO.

    9 We can go over to page 11 of the chronology.

    10 The next document, I think, of this type would be 5673,

    11 a similar document to something we have seen earlier,

    12 where he is signing, for the HVO Central Bosnia

    13 regional headquarters, a permanent pass in respect of

    14 someone permitted to pass and to carry weapons.

    15 On the 19th of June, according to a radio

    16 broadcast, the first defendant signed a communique

    17 announcing that the HVO was the only legal supreme

    18 commander of Herceg-Bosna and of all its residents, and

    19 at about this same time, the police station in Vitez

    20 was captured or taken over by the HVO, and as you will

    21 see in the next entry on the chronology, there was an

    22 attack on Novi Travnik, Novi Travnik northwest of the

    23 map we have been looking at and a little south of

    24 Travnik itself.

    25 What was the level of this attack? It was

  46. 1 about an hour long. It resulted in the removal of

    2 Territorial Defence Muslim forces from various premises

    3 where they had been quartered.

    4 So that things are edging up in scale from

    5 what happened in Busovaca with the taking over of the

    6 town, with arrest of people, now perhaps one of the

    7 early attacks by Croats on Muslims or Bosniaks, as I

    8 think may sometimes be the more appropriate

    9 terminology, and I must check that with the witnesses

    10 as I call them, now an early attack.

    11 At the foot of page 11 of the chronology,

    12 again, the first defendant signing himself as deputy

    13 president for the HVO along with Kostroman. Kostroman

    14 was the secretary of the party. He is the man who I

    15 referred to speaking after Kordic on the hand-held

    16 video, and you will see that in detail in due course.

    17 But as deputy president, he ordered the HVO in Vares

    18 temporarily to accommodate HVO from another unit, and

    19 that can be found on page 5670 of your documents,

    20 another short document. The Croatian Defence Council

    21 in Vares municipality was ordered to allow

    22 uninterrupted activity to the Croatian Defence Council

    23 of the Ilijas municipality in Vares since they can't

    24 work in the Ilijas municipality. Was this man really

    25 no member of the HVO? Was he a man who had no

  47. 1 authority over its affairs?

    2 If you please, to page 12 of the chronology,

    3 we must pick up a little now of what was happening so

    4 far as the second defendant is concerned, bearing in

    5 mind what may be being asserted in due course about his

    6 extremely limited role. In the summer, he was seen

    7 briefing soldiers before the taking of a storage depot

    8 and briefing soldiers before the action to repulse

    9 Serbs in an area north of Turbe. He was also

    10 participating in an oath-taking ceremony at the stadium

    11 in Vitez under the presidency of the first defendant

    12 where HVO soldiers made an oath to defend everything

    13 that was Croatian.

    14 In a newspaper in July of 1992, the first

    15 defendant was quoted as saying: "We want one-third of

    16 the State's power and no one is going to give us

    17 anything. We just want to take what is ours."

    18 On the 3rd of July, several decrees were

    19 published. One of them is set out quite extensively

    20 here, and I will just read an important part of it, for

    21 it identifies one of the issues with which you will be

    22 having to deal. It is the presidency of Herceg-Bosna

    23 decreeing various matters, and if you pass your eyes

    24 down to halfway down the entry, and indeed about

    25 halfway down the page, Article 29, dealing with command

  48. 1 and control of the armed forces, stated, amongst other

    2 things, "that the Supreme Commander of the armed forces

    3 of Herceg-Bosna is the President of Herceg-Bosna who

    4 shall determine ..."

    5 And then within a subparagraph, subparagraph

    6 7, that he should appoint and relieve of duty military

    7 commanders in accordance with a respective legal act.

    8 The supreme commander is the president of the

    9 community, not the vice-president, Dario Kordic. He is

    10 a member of the presidency, and it's asserted, it may

    11 be, that commanding the armed forces being within the

    12 office of the president, that the vice-president, or

    13 any one of them, is outside that chain of command.

    14 Well, there are two answers to that. First of all,

    15 there is what was actually happening on the ground.

    16 The second is that there was a further decision on the

    17 same day, which I'm afraid I haven't got in your

    18 papers, and that can be remedied in due course, but it

    19 was the statutory decision on the temporary

    20 organisation of executive authority and administration

    21 in the territory of Herceg-Bosna which did repose, it

    22 will be argued and may so be decided, authority over

    23 the HVO in the presidency. So that is an issue that

    24 you will have before you to resolve on evidence in due

    25 course.

  49. 1 If we turn over in the chronology to page 13,

    2 the latter part of July of 1992, the first entry marked

    3 the 12th of July, I wonder if everyone could be good

    4 enough simply to delete it? It's a rogue entry; it

    5 shouldn't be there. It was the 12th of August and it

    6 never was the 12th of July, and it has already been

    7 entered as the 12th of August.

    8 On the 16th of July, a couple of entries

    9 further down, there will be a document -- it's not in

    10 your papers at the moment -- of Cerkez signing the

    11 military identification of someone, identifying him as

    12 a member of the 1st Brigade in Vitez. The Court will

    13 remember -- it's got in mind perhaps as an issue

    14 generally: What was the second defendant's authority

    15 in Vitez? Was it a small and single brigade, or was it

    16 the general authority for that area?

    17 In August of 1992, there was a speech made by

    18 the first defendant about the restructuring of the HVO

    19 units and his asserting that Novi Travnik would soon be

    20 Croatian. Novi Travnik, an area they plainly wanted to

    21 command. They maybe never succeeded, but it was the

    22 subject of recurring attempts. They wanted it for

    23 Croatia or for themselves, the Croats.

    24 In the schedule as it is presently

    25 constituted, I have not identified all the attacks on

  50. 1 various locations. Some are identified; some are not.

    2 Various reasons for that, one of which is that

    3 sometimes dating of the attacks is more difficult to be

    4 precise about than one might think, and it is perhaps

    5 better to await the evidence.

    6 However, on the 8th of September, there is an

    7 attack in the region by the HVO, referred to in the

    8 amended indictment, not the subject of a count in the

    9 indictment, but it's interesting to see what level of

    10 violence was being used by one community on the other

    11 at this stage because it is a developing pattern.

    12 The village concerned was Potkraj and Duhri,

    13 that's P-O-T-K-R-A-J, and Duhri, D-U-H-R-I, and on or

    14 about the 8th of August, there was an attack by the HVO

    15 on this village, which is towards the southeast of the

    16 area with which we are concerned, near to Kiseljak, and

    17 it was initially with small arms and later with heavier

    18 weapons, and as a result of the attack on that day, one

    19 Muslim civilian was killed in Duhri and one in the

    20 other village of Potkraj. A Croat civilian was also

    21 killed. That is, of course, a terrible event. Any

    22 death is a terrible event, however it occurs. But for

    23 the purposes of this case, maybe of even greater

    24 evidential significance is that 28 houses were burned

    25 down. So that one can see the developing pattern of

  51. 1 behaviour leading to control or, of course, to the

    2 expulsion of one community from the territory aspired

    3 to by the other.

    4 Back to the chronology, and without troubling

    5 you to go to the papers on this occasion, on the 12th

    6 of August, the first defendant, signing this time in

    7 his role as vice-president of the community,

    8 Herceg-Bosna, an invitation to the HVO president in

    9 Vares to attend a meeting in Busovaca.

    10 Over the page, and I can deal with these

    11 entries quite shortly, just to identify their type.

    12 On the 31st of August, as vice-president of

    13 Herceg-Bosna, signing approval for the free movement of

    14 people. On the 2nd of September, there is a

    15 handwritten note by somebody called Ivica Rajic,

    16 instructing the Vares party official that the first

    17 defendant was a person to ask for additional money for

    18 troops. On the 7th of September, the first defendant,

    19 in his position as vice-president of Herceg-Bosna,

    20 signing or co-signing a request or instruction to

    21 municipal headquarters for platoons to be sent to Jajce

    22 the same day, co-signed by Blaskic in his capacity as

    23 commander of Central Bosnia.

    24 Incidentally, I said earlier this morning

    25 that the defendant, the first defendant, had no

  52. 1 military training. That, of course, reflects different

    2 regimes in different countries. There was, of course,

    3 I suspect, compulsory military training for him with

    4 the JNA at that time. That says nothing about his

    5 being officer rank or how he could achieve so quickly

    6 the rank of colonel.

    7 Over to page 15 of the schedule. On the 18th

    8 of September, the constitutional court of Bosnia and

    9 Herzegovina itself dealt with the decrees that

    10 established the Community of Herceg-Bosna, the internal

    11 community, and annulled them as not lawful.

    12 Incidentally, Herceg-Bosna has never been, was never,

    13 recognised internationally at all.

    14 The 19th of September of 1992 is an order by

    15 Blaskic in which the handling and transportation of

    16 weapons was to be dealt with or was being dealt with in

    17 order that they should move through checkpoints on

    18 their way to Herzegovina, the southern part of the area

    19 in which we have a general interest, or on to Croatia

    20 from Central Bosnia. The order said weapons and

    21 ammunition must be accompanied by papers signed by both

    22 Blaskic and the first defendant Dario Kordic.

    23 On the 19th of September -- we turn again to

    24 the second defendant just to see what's developing

    25 there. It's page 5610 in your papers.

  53. 1 If the Court has found that page ...

    2 On this day, the 19th of September, the

    3 second defendant signs, as staff commander for Vitez

    4 HVO, a request to the HVO in Travnik:

    5 "Because of the formation of special forces

    6 in Vitez HVO, we hereby ask for you to issue us as many

    7 beds, mattresses and blankets as possible.

    8 "The special units will be quartered in the

    9 barracks, which we have prepared for the further

    10 functioning and training of special forces.

    11 "GOD AND CROATS."

    12 And then he signs.

    13 On page 5608 is the beginning of a long

    14 document dated the 22nd of September from Busovaca. I

    15 am wondering if this is one -- again, I am going to be

    16 jumping through it, I'm afraid, so quickly that -- no,

    17 perhaps we ought to put another one on the ELMO, it is

    18 only right, if we can dig it all out, it's several

    19 pages. 5608.

    20 While the usher is helping us, this is, on

    21 its face, an excerpt from the minutes of the meeting of

    22 the Croatian Defence Council in municipalities of

    23 Central Bosnia. That's page 1. Thank you very much.

    24 It's attended by, amongst others, Dario Kordic, and we

    25 see that the working presidency is described as Dario

  54. 1 Kordic, Anto Valenta, Tihomir Blaskic, and Ignac

    2 Kostroman.

    3 There is a report on the situation in the

    4 municipalities, and if we could go to the fourth sheet,

    5 please, to our page 5605, not forgetting the other

    6 comparative outpost of the area with which we are

    7 concerned, Zepce, in the far north or the north of the

    8 small area -- not the far north -- there is a report

    9 here on Zepce:

    10 "Civilian HVO authority has not been

    11 established. Military HVO authority is in operation

    12 for the municipalities of Zepce ..."

    13 And others are named.

    14 "These municipalities recently officially

    15 joined the HZ-HB. Muslims have reacted strongly and

    16 there is a possibility of an armed confrontation. The

    17 military command does not have professional staff, so

    18 that it will be difficult to protect these areas

    19 without significant staff changes. The town is poorly

    20 supplied ... Muslims do not want to go to the front

    21 lines."

    22 At the foot of that page begins -- right at

    23 the foot of that page, please, just the last two lines,

    24 thank you, and over to the next page -- "Travnik":

    25 "Until now there has been a kind of dual

  55. 1 authority which was at variance with the army.

    2 Military command is separate. Muslims are trying to

    3 take over all civilian and military authority in the

    4 city. Until recently there were five kinds of police

    5 station. There are many mujahedins in the city. The

    6 HVO government has recently been detaching itself from

    7 the joint municipal government. It has also been

    8 planning the Central Bosnia Chief HVO Command to move

    9 to Travnik. Certain out-posted ministerial departments

    10 for Central Bosnia would be moved from Mostar to

    11 Travnik. The following are also moving to Travnik:

    12 Vice-President of the HZ-HB, Ante Valenta;

    13 Vice-President of the HZ-HB, Dario Kordic; and the

    14 Chief Secretary of the HZ-HB, Ignac Kostroman."

    15 In that line, we identify two of the names

    16 that I probably should have identified by title

    17 earlier, the other vice-president and the secretary

    18 that I referred to a little earlier.

    19 "It is also possible that the HVO Chief of

    20 Staff of Central Bosnia with the commander, Colonel

    21 Tihomir Blaskic, will also move to Travnik. The

    22 reasons these offices are moving to Travnik is to make

    23 Travnik a political Croatian centre for Central

    24 Bosnia. There are presently about 16.000, mostly

    25 Muslim, refugees in Travnik. It is estimated that

  56. 1 about 80.000, mostly Muslim, refugees have passed from

    2 Krajina through Travnik. The town is well supplied,

    3 considering the war conditions."

    4 There is also a report at this document, at

    5 the foot of this page, on that northeastern outpost,

    6 Vares. This is the most protruding municipality of the

    7 HB. "The economy has practically ground to a halt.

    8 People are almost starving. The HVO is in full

    9 control. About 82.000 refugees have passed through

    10 from the direction of Brcko and Tuzla."

    11 Next page, "Transit taxes are collected. It

    12 will not be possible to apply tax rates as prescribed

    13 in the HZ-HB decree. Schools have started working in

    14 the Croatian language. The town is poorly supplied.

    15 Vares received some aid from the commodity reserves,

    16 but that was very little. There are about 1200 Muslim

    17 and 800 Croatian refugees. Refugee camps are being

    18 built."

    19 In the middle of this page, perhaps worth

    20 noting, under the heading "Observations noted in all

    21 the Municipalities," this was the expressed view.

    22 "In almost all the municipalities, Muslims

    23 are behaving as if they have an exclusive right to

    24 power in B and H and as if they are the only fighters

    25 for B and H;

  57. 1 "All permits must be urgently made uniform

    2 and instructions issued as to jurisdiction;

    3 "There has to be strong HVO propaganda

    4 everywhere;

    5 "Muslims have attempted to enforce their

    6 policy through the HOS," that's the Croatian Defence

    7 force, "but have been discovered. In Central Bosnia,

    8 the HOS have almost completely put themselves under the

    9 command of the HVO. In many areas, the HOS has been

    10 dissolved and its members have joined the HVO."

    11 Then the last page of this document, our page

    12 5601, and indeed the penultimate paragraph:

    13 "HVO Military bodies for Central Bosnia

    14 shall prepare defence plans against possible attack by

    15 Islamic Fundamentalist Mujahedin Forces and introduce

    16 military discipline and order in the military

    17 formations." Then, "The Ministry of Defence shall,

    18 together with the military command, provide military

    19 logistics for Central Bosnia." The signatures to this

    20 document being the two deputy presidents and the

    21 secretary.

    22 We now -- thank you very much; that's what I

    23 wanted, that document. Yes.

    24 If the Court would turn in the immediate

    25 following document, which starts at page 5600, it will

  58. 1 find a "Situation At The Novi Travnik Front" report

    2 that I'm only concerned at this stage to go two pages

    3 on, to 5598, paragraph 10, bearing in mind the issue

    4 about the first defendant's involvement in military

    5 matters.

    6 This document, signed by both Blaskic and the

    7 first defendant, has as paragraph 10:

    8 "While defence operations are being

    9 conducted, the vice-president of the HZ-HB /Croatian

    10 Community of Herceg-Bosna/ Dario Kordic and I are in

    11 Novi Travnik, continuously leading the military

    12 operations with deep knowledge of the situation and by

    13 keeping all the forces under control. Commander of" --

    14 and then there's a problem with the original

    15 document -- reference to "Filip Filipovic is also here

    16 and the Novi Travnik HVO HQ."

    17 So another document which the Prosecution say

    18 fits, and only fits, with this man having by now

    19 assumed considerable responsibility in matters military

    20 and with consent of all those others involved at the

    21 senior level of the party of the HVO.

    22 If in the chronology we can now turn to page

    23 16, in the autumn of 1992, on the 19th of October,

    24 there was an incident where the first defendant

    25 demanded that the barricade that had been set up by

  59. 1 Bosniaks at Ahmici should be removed. Ahmici lies

    2 beside the road running south and east and is plainly a

    3 critical point on that road. He stated that there

    4 would be no negotiations until there had been surrender

    5 to the HVO at that point.

    6 On the same day, the second defendant made

    7 contact with the first defendant in relation to this

    8 same topic, the first defendant saying that the

    9 checkpoint had to be removed or he would not be

    10 responsible for what happened. There was, I think, an

    11 effort or a successful effort at enforced removal of

    12 the barricades from a Catholic cemetery at Ahmici, a

    13 little further down, apparently directly on the orders

    14 of the first defendant.

    15 At the same time, what's the position with

    16 the second defendant? Simon Ellis met him at the Vitez

    17 Hotel, and he was introduced to that witness as the

    18 local military man in charge of the HVO.

    19 Over to page 17 in the chronology, on the

    20 20th of October, with the continuing problems at the

    21 Ahmici roadblock or checkpoint, the first defendant

    22 overheard saying what would happen to those Muslims if

    23 the barricades weren't lifted.

    24 In this opening, I'm not concerned to

    25 forecast in detail some of the more potentially, as it

  60. 1 were, exciting or excitable bits of evidence, for

    2 several reasons. One, this opening is basically to set

    3 the Prosecution's case and to assist the Court and to

    4 point it to where the evidence will be coming from;

    5 second, because although there is evidence from time to

    6 time of absolutely direct involvement by one defendant

    7 and the other in criminal matters, it's not evidence

    8 upon which we are dependent for establishing our case,

    9 as we have made plain in our pre-trial brief; third,

    10 because in the nature of things, forecasts of evidence

    11 are sometimes not realised or not fully realised. But

    12 I point the Court to the possibility or probability

    13 that there will be evidence of a direct kind at about

    14 this point in the trial.

    15 On that same day, Colonel Stewart of the

    16 British Battalion had to deal with organising a

    17 cease-fire for the problem that was then involving

    18 fighting, and what was significant or what may have

    19 been significant is that the first defendant was able

    20 to set out the terms of a cease-fire agreement without

    21 seeking authority from anyone else. He appeared, it

    22 may be, to have been his own master.

    23 The next four entries relate to an attack at

    24 Travnik. They relate to Cerkez. Again there is the

    25 potential for direct evidence of what he said and how

  61. 1 that would impact on those at the receiving end of the

    2 attack by the HVO. For the same reason, I leave it

    3 there.

    4 On the 21st of October of 1992, and at page

    5 5600 in -- it may be an incorrect reference -- it's a

    6 wrong reference, in which case I shan't take your time

    7 with it. Don't worry about -- I'll move on without

    8 taking you to the document, but on that day, the first

    9 defendant signed, together with Blaskic, a report on

    10 the situation in Novi Travnik. No, I've already taken

    11 you to it; we've already looked at it. I'm so sorry.

    12 It's slightly out of order. Yes, we've already dealt

    13 with it.

    14 We can go over now to page 18, the latter

    15 part of October of 1992. The first entry reveals how,

    16 at a time when there were attacks being mounted in Novi

    17 Travnik and outside the immediate area, but in Mostar

    18 and Prozor, Mostar having been taken by the Croats and

    19 declared to be the capital of Herceg-Bosna, while those

    20 actions were taking place, there is evidence of Kordic

    21 and Blaskic issuing an order for the shelling of

    22 Bugojno on certain terms.

    23 As to Novi Travnik, we have heard what

    24 happened to it in its short suffering earlier in June.

    25 In October, the level of the attack was more sustained

  62. 1 and may have involved Kordic personally. The result of

    2 the attack was to consolidate certainly control by the

    3 HVO of parts of that municipality, and it involved the

    4 destruction of many Muslim-owned businesses located in

    5 the area that did fall to the HVO.

    6 At the same time, if we keep an eye on

    7 approximate dates, as the third entry on this

    8 particular page, Cerkez features having a meeting with

    9 a witness to be called, inviting him to negotiate on an

    10 issue, a defence issue relating to roadblocks in that

    11 area. In the middle of the page, on television, the

    12 first defendant recorded as saying what would happen to

    13 Ahmici in the event of and as a result of the blocking

    14 of the movement of troops going to Novi Travnik.

    15 Further down this page, and in your papers at

    16 page 5582, a document signed by Blaskic on the 10th of

    17 November dealing with talks that were to take place or

    18 expected to take place with General Morillon and an

    19 invitation that had been issued for a meeting with

    20 top-level HVO politicians as soon as possible.

    21 Paragraph 2, the Serbian proposal is set out

    22 as to where the talks should take place, the

    23 representative of the Serbian side is identified, and

    24 at paragraph 4, "Subject of talk, immediate cease-fire

    25 in Mostar. I propose that our side is represented by

  63. 1 deputy president of the HZ-HB," that's the Herceg-Bosna

    2 Community, "Mr. Dario Kordic, and secretary Ignac

    3 Kostroman." And that was to be reflected in due course

    4 by some of the things in which the first defendant

    5 participated.

    6 JUDGE MAY: While it's in my mind, let me ask

    7 you this, Mr. Nice, since it may occur to others: The

    8 first accused is the vice-president?

    9 MR. NICE: Yes.

    10 JUDGE MAY: Reference is made to "the

    11 president" throughout these documents and in what you

    12 say. What is the Prosecution case about his role?

    13 MR. NICE: The Prosecution -- this is a man

    14 reported as dead, the president himself, so that the

    15 Prosecution hasn't in any formal way, I think,

    16 expressed its view, but its view, of course, is that

    17 responsibility would also lie there in almost all

    18 circumstances, but that that case has not been explored

    19 or developed because it hasn't been possible to focus

    20 on him because he has been reported as dead.

    21 On the chronology -- can I make another point

    22 while I've interrupted the -- broken into the

    23 narrative. I don't intend to go through the indictment

    24 in any detail in the course of this opening, because

    25 they are very long documents, and they have been

  64. 1 considered by the Court and by my friends for the

    2 Defence and so on. But it's probably worth reminding

    3 the Court or informing the Court that the way the

    4 indictment is formulated is that there is first of all

    5 the persecution count, which encompasses pretty nearly

    6 everything, or everything, followed by specific counts

    7 dealing with killings and attacks and inhuman treatment

    8 and matters of that sort. Generally, the indictment is

    9 confined in the case of Cerkez, of course, to the

    10 immediate area of his concern; so far as Kordic is

    11 concerned, for most matters, that is for particular

    12 offences, to the particular Opstinas we have looked at

    13 on that map. So far as persecution is concerned,

    14 because of his role within the HVO generally, he is

    15 also indicted for what happened in the area of

    16 Herceg-Bosna generally, i.e. all the way down to

    17 Mostar, so that when we see references to what's

    18 happening in Mostar, its relevance, direct relevance,

    19 can be in that respect.

    20 At the foot of page 18 of the chronology, we

    21 see that there was in Mostar the second general

    22 assembly meeting of the party with a number of Croatian

    23 guests, with the first defendant being present, with

    24 rules of procedure being adopted, and so on, and then

    25 over to the top of page 19, Mate Boban elected

  65. 1 president and Kordic elected vice-president with four

    2 others.

    3 Incidentally, I made reference to a

    4 relationship between Boban and Kordic; that's -- I

    5 should make plain, and I'm grateful for being reminded

    6 of this or informed of this -- that comes from

    7 witnesses, in the sense that the relationship of cousin

    8 might have been believed by witnesses, but it may be

    9 that it is not something that I am in a position to

    10 prove any more than that, so it's by repute on the part

    11 of some of the witnesses, and I don't put it higher

    12 than that. But now, in November of 1992, his status

    13 formally as vice-president, with others, of the party

    14 for this area.

    15 Towards the foot of page 19 of the

    16 chronology, we come to the 28th of November and page

    17 5548 of your papers. This is one of a category of

    18 documents with which you will, if not already familiar

    19 in other cases, become familiar here, reports on the

    20 situation from observers who one might expect to be

    21 dispassionate.

    22 It says in the discussion, "Opening,

    23 General," and this is at Sarajevo airport, "All

    24 delegations were present and welcomed by the chairman.

    25 Col Kordic was the new chairman of the HVO delegation.

  66. 1 He introduced himself as the superior of Col Blaskic

    2 and he stated that he would be in attendance at all

    3 future MMWG meetings." Then there was a meeting, and

    4 so on.

    5 At the foot of page 19 of the same page in

    6 the schedule, in a newspaper article, the first

    7 defendant is reported as having given a speech at a

    8 swearing-in ceremony for HVO soldiers of a particular

    9 brigade, referring to Zenica as Croatian space and an

    10 integral part of HZ-HB.

    11 Then over the page to page 20, in an

    12 interview published, five lines down, I think, or six

    13 lines down, one of his replies was to this effect: "It

    14 is a firm foundation of a future Croat national

    15 constitution with equal rights to the other two parties

    16 in this sovereign and internationally recognised

    17 Republic of Bosnia and Herzegovina."

    18 It goes on: "He said that the Croat people

    19 have never wanted any kind of ethnic division of Bosnia

    20 and Herzegovina, that they have never fought for

    21 cantons. Asked whether Bosnia and Herzegovina is a

    22 Croat homeland, he observed that it's mostly occupied;

    23 that to feel this to be so is the way to regain the

    24 occupied territory. To realise this aim, we have to

    25 use all methods including military, political, and the

  67. 1 international community."

    2 Well, there is a reported assertion of no

    3 desire for other than equal rights to the other

    4 parties. Of course, there may be reasons for speaking

    5 differently to the press or the international press

    6 than in other settings, and in any event, whatever is

    7 said has to be judged not only beside other things that

    8 are said but beside what is done.

    9 In the middle of this page, on the 3rd of

    10 December, Cerkez became the deputy commander, it may

    11 be, according to a milinfosum report, the deputy

    12 commander based in Vitez. For what it's worth, the

    13 following entry records -- not for what it's worth; the

    14 following entry records Colonel Stewart meeting Cerkez

    15 in Novi Travnik, where he was apparently now based as

    16 deputy commander of the Novi Travnik Vitez Brigade.

    17 Further down this page, on the 12th of

    18 December, at Sarajevo, there was a meeting between the

    19 first defendant and somebody from the British Battalion

    20 in which the first defendant signed an agreement about

    21 the safety of the Sarajevo airfield and an agreement

    22 about free passage of U.N. personnel on a particular

    23 road. Indeed he represented the HVO in peace talks in

    24 Sarajevo with consequences that are set out, namely

    25 three corridors for freedom of moment of civilians in

  68. 1 three regions.

    2 It may just be worth looking at the 16th of

    3 December which you will find on page 5538 -- perhaps we

    4 can make this now available? Perhaps if the usher

    5 would be good enough? -- as part of the material that

    6 the Court will ultimately have and have to sift and

    7 integrate with live evidence to decide what was in

    8 people's minds what they were doing.

    9 This is a document dated the 16th of

    10 December. It comes at the bottom, as we will see, from

    11 the Vice-President of Herceg-Bosna, Dario Kordic, and

    12 from the Secretary. The order reads as follows.

    13 "1. ... IMMEDIATELY upon the receipt of this

    14 order to appoint one person to be in charge of

    15 cooperation with religious communities of a true

    16 Catholic orientation, which will be carrying out global

    17 Croatian policy in municipalities.

    18 "2. Municipalities are obliged to advise

    19 this body in writing about the people appointed ...

    20 "3. It is necessary to initiate URGENTLY a

    21 large-scale operation for the erection and placing of

    22 religious symbols and monuments (crosses, statues etc.)

    23 in populated areas, at cross-roads, along roadsides and

    24 in shops, in order to revive the Catholic tradition,

    25 deeply rooted in every Croat, to these areas.

  69. 1 Religious terms are to be used as much as possible in

    2 the names of streets and populated areas.

    3 "Religious symbols are to be returned to

    4 places where they formally stood.

    5 "We must be wise in implementing global

    6 Croatian policy and must not irritate anybody with our

    7 actions. This order is to be carried out in a subtle

    8 and systematic way.

    9 "4. People in charge of constructing and

    10 placing religious symbols and monuments are to consult

    11 local churches and urban planning officials.

    12 "6. This order is to be regarded as a

    13 priority!"

    14 On page 21 of the chronology, on the 23rd of

    15 December of 1992 -- can I just check whether the room

    16 has this tape ready to play?

    17 Providing things have worked correctly, this

    18 is a speech at a ceremony of oath-taking on the 23rd of

    19 December.

    20 (Videotape played)

    21 THE INTERPRETER (Voiceover): "... a legend

    22 of the Croatian people of Central Bosnia, Colonel Dario

    23 Kordic.

    24 "DARIO KORDIC: Dear Croat brethren, dear

    25 Croat soldiers. I greet you on behalf of the Croatian

  70. 1 Community of Herceg-Bosna and also in the name of the

    2 greatest son of the Croat people of the Croatian

    3 Community of Herceg-Bosna, Mr. Mate Boban. I am very

    4 happy that we meet here in such large numbers today. I

    5 am glad that we are here in the Croat space in the

    6 integral part of the Croat Community of Herceg-Bosna.

    7 The Croat space -- Zenica was a Croat space, and it is

    8 still integral Croat space, and it will be the Croat

    9 Community of Herceg-Bosna whether others like it or

    10 not. These days, you heard messages and questions:

    11 What do we fight for? Why do we fight for the

    12 liberation and a political solution of the Croat

    13 people? Well, because we shall never again repeat the

    14 mistakes we committed in the past. We want to free all

    15 occupied territories, to regain all that was ours, and

    16 to create once and for all the Croat space, the

    17 Croatian Community of Herceg-Bosna, which nobody will

    18 ever take from us again. All this will be ours.

    19 Likewise, we are not preventing the Muslim people from

    20 fighting and winning all that is theirs. We are ready

    21 to help the Muslim people in this. That we together do

    22 what we have to do. Likewise, I should like from this

    23 place, during this ceremony of oath-taking of the

    24 brigade of the Croat Defence Council, Jure Francetic,

    25 that Croat soldiers as the previous speakers have said,

  71. 1 that with heart and soul we shall rebuild this space

    2 which was created by former generations of Croat

    3 soldiers for our children who certainly deserve to have

    4 a better future. Long live the Croat Community of

    5 Herceg-Bosna, long live all of you. Very Merry

    6 Christmas."

    7 MR. NICE: I will provide transcripts in due

    8 course for inclusion in the core bundle of documents.

    9 We go to page 21 of the chronology. As we

    10 just turn to January of 1993 -- would you go, please,

    11 to page 5532?

    12 On this date -- no, I'm so sorry. That's the

    13 wrong -- disregard that reference. I misread

    14 something. It is page 5535, three pages earlier.

    15 This is a document dated the 2nd of January,

    16 proposing the appointment of chiefs of defence

    17 offices. Somebody has set out there. And over the

    18 page to 5534, a short biography is set out, and the

    19 consent to the appointment of someone to this defence

    20 office is signed by, it appears, four people, and again

    21 the first defendant, Dario Kordic, signing as

    22 vice-president, on this occasion, of the party, the

    23 Croatian Democratic Union -- I should have spelled it

    24 out, HDZ -- is one of those signatories, and the point

    25 again for your consideration now and in due course is

  72. 1 obvious.

    2 As the Court will well know, one possibility

    3 for the resolution of the difficulties in this part of

    4 the former Yugoslavia generally was the Vance-Owen

    5 Plan, a resolution that would have been very acceptable

    6 to the Croats, giving them by cantons much of what they

    7 wanted and indeed on the 4th of January, though it is

    8 not down on this chronology, Boban signed up to that

    9 plan.

    10 We go over to page 22. So in 1993, what's

    11 the position, the stock-take position? The development

    12 of the party, the HVO, its growing powers. You have

    13 seen the presence of the first defendant at two

    14 events. The first use of force, repeated attacks in

    15 Novi Travnik, some people killed.

    16 We will hear, no doubt, from various

    17 witnesses, accounts of particular events that, in their

    18 judgment, may have been critical in whatever domino

    19 theory led to, for example, what was in due course to

    20 happen in Ahmici, and it may or may not be possible, it

    21 may or may not be necessary, for the Court ever to make

    22 a final decision on these matters.

    23 But at about this time, the beginning of

    24 January of 1993, the armed violence against the Bosniak

    25 communities was being stepped up. Not all are marked

  73. 1 here on your chronology. But apart from what was

    2 happening in Gornji Vakuf, which I think may have been

    3 something that Colonel Stewart thinks is significant or

    4 thought was significant, there are attacks on Busovaca

    5 town, on Merdani, Kacuni, Strane, and Ocenica. I will

    6 come to just one of those as a sample in a minute and

    7 take you first, however, to the fourth entry on this

    8 page.

    9 Back in Busovaca, there was the first death

    10 in that community that we can associate with these

    11 matters, I think, a man called Mirsad Delija, murdered

    12 on his doorstep, and we may hear what was linking him

    13 to the participants in this trial only shortly before.

    14 What was happening elsewhere on this same

    15 day, the 20th of January, included what was happening

    16 at Busovaca itself where the HVO launched an offensive

    17 on the Muslim population in the surrounding villages of

    18 Merdani, Kacuni, Strane, and Ocenica, searching Muslim

    19 civilians' homes for weapons, destroying businesses by

    20 hand grenades, and shooting and killing some unarmed

    21 civilians who refused to leave their homes. So that

    22 the level of violence has been racheted up. Other

    23 attacks on -- no. That's what I say for the moment.

    24 They held, did Kordic and Blaskic, a press

    25 conference presenting their views on the clashes in

  74. 1 Gornji Vakuf and the presence of Mujahedin in Central

    2 Bosnia, and I suppose one of the sub-issues that the

    3 Tribunal will have to have in mind from this moment on

    4 is the degree to which complaints by the Croats about

    5 the behaviour of the Bosniaks was genuine and

    6 well-founded or was a smokescreen or, to an extent, a

    7 smokescreen, either in advance of events that were to

    8 be forthcoming or to cover up what had been done

    9 afterwards.

    10 At the foot of this page, page 22, sometime

    11 towards the end of January, you may hear evidence of

    12 what was happening -- I beg your pardon. I should have

    13 gone further up.

    14 On the 25th of January, following the attacks

    15 on some of these villages where people were killed,

    16 some 300 were taken to a prison at Kaonik, again a name

    17 which may not be unfamiliar, and, of course, as the

    18 Court will know, included in the allegations, both

    19 generally and specifically charged against these

    20 defendants, is responsibility for what happened in

    21 these prisons, the condition of the prisoners, what

    22 happened to prisoners who were used for trench-digging,

    23 and what happened to them when they were used as human

    24 shields, and I don't need to set it out in detail more

    25 than that. It will be a matter of evidence to be

  75. 1 fitted in to the overall history in due course.

    2 But it is sufficient to note at the foot of

    3 this page the second-to-last entry, there should be

    4 evidence before you of a conversation involving or

    5 leading or pointing to direct responsibility of the

    6 first defendant in some of these illegal and inhuman

    7 acts.

    8 Over to page 23. No, I can move straight

    9 over to page 24, on the foot of that page. On the 1st

    10 of February, when Cordy-Simpson of the British

    11 battalion was bringing together the 1st and 3rd Corps

    12 of the other army with Blaskic, Kordic was there from

    13 the HVO in Vitez. Again, the same point: His

    14 responsibility is revealed.

    15 The next entry sets out what was recorded on

    16 a television programme where Kordic stated, amongst

    17 other things, this, and it's right where these things

    18 occur that I shall draw them to your attention. On the

    19 one hand he said, "Our men have been given an order not

    20 to fire a single bullet." This is following, I think,

    21 a ceasefire. "If you attack any other municipalities,

    22 though, not only will there be no BiH, there will be no

    23 Muslims left."

    24 At the foot of this page reveals Cerkez's

    25 designation as deputy commander of the Stjepan

  76. 1 Tomasevic Brigade, one of three brigades of the 1st

    2 Operational Zone, with the Travnik Brigade commanded by

    3 Filipovic and the Jure Francetic Brigade in Zenica

    4 commanded by Totic, so that the head of Cerkez we can

    5 identify, that's his position then designated,

    6 commander of this brigade.

    7 Going down page 25, you can see on the 2nd of

    8 February a concern, an understandable concern,

    9 addressed by the Muslim party's executive board public

    10 announcement, namely, that passage I have referred to

    11 where he spoke on television and where they likened it

    12 to a statement made by another name well-known to this

    13 Tribunal but never before it, Karadzic, likening the

    14 statement made to the statement Karadzic had made for

    15 his own purposes with a different group.

    16 Two entries further on records Kordic and

    17 Blaskic signing a local ceasefire agreement to stop the

    18 fighting in Vitez. Two entries beyond that, Kordic met

    19 Jennings to discuss the ceasefires, saying he would

    20 delay the exchange of prisoners unless certain

    21 conditions of his, which were not in the ceasefire

    22 agreement, were met. He summoned Colonel Stewart to

    23 meet him and requested him to stop the fighting in

    24 Merdani and Katici. He announced that he had photo

    25 documentation confirming Muslim atrocities. He met

  77. 1 Fleming and Stewart to complain about alleged ceasefire

    2 violations. He met another British Battalion officer

    3 called Forgrave and showed maps to reveal how

    4 surrounded they were by the Bosniaks or Muslims in

    5 Busovaca. And two entries further on, met Jennings

    6 again to discuss matters of concern and to give him a

    7 military map.

    8 The next entry records him agreeing to move a

    9 roadblock of booby-trapped HVO trucks. This, it may be

    10 thought, gives a reasonable and accurate insight into

    11 the real responsibility of the first defendant for

    12 matters connected with the HVO at that time.

    13 Over to page 26, please. Again, it's right

    14 to note things that may apparently go in a different

    15 direction.

    16 On the 15th of February, according to a

    17 report, an UNPROFOR message, Kordic's position was

    18 analysed with the suggestion of there being discord

    19 between him and Blaskic and it being suggested that

    20 Kordic appeared to speak for the civil authorities in

    21 Central Bosnia.

    22 Two entries further on: Kordic and Valenta

    23 gave a press conference from the regional staff HVO in

    24 Central Bosnia speaking about breaches of the truce on

    25 the part of the Muslim forces, threatening to spark a

  78. 1 possible conflict, despite the fact that HVO formations

    2 were refraining from opening fire in return. He was

    3 referred to as "Colonel."

    4 The following day -- no, I beg your pardon --

    5 five days later, he threatened to close the Zenica road

    6 where a checkpoint had been released, and the day after

    7 that stated that Bosnian Croats in Busovaca blocked the

    8 roads towards Zenica by way of protest at their having

    9 been denied the benefit of some relief convoys.

    10 Over to page 27, please. It is not

    11 irrelevant to know what was the level of propaganda

    12 being broadcast elsewhere for there is every reason to

    13 believe it would be known in Bosnia, and may have been

    14 sympathetically received but certainly known. On the

    15 26th of February, in an interview, Tudjman said this:

    16 "It goes without saying that, given the international

    17 situation, both Europe and the world would have

    18 difficulty accepting that an Islamic state be created

    19 in the middle of Europe," something likely to inflame.

    20 There is a small incident that follows to do

    21 with a Dutch military or civilian, I'm not sure,

    22 Mercedes motor car which was stolen and the first

    23 defendant was able to recover it or some of its

    24 contents when requested so to do.

    25 At the foot of the page, a witness called

  79. 1 de Boer will be able to help us with how Kordic was

    2 involved directly in the release of three Muslim girls

    3 held by the HVO. de Boer was invited into his

    4 operations room in the PTT building in Busovaca, and

    5 they negotiated the release of the girls. Wearing, I

    6 think at the time, HVO markings, was the first

    7 defendant.

    8 Over the page, please, to page 28.

    9 Remembering Vares to the northeast, cut off in one

    10 physical sense, significant because it is the town to

    11 which Stupni Do is near, Stupni Do, where the later

    12 serious atrocity was committed towards the end of 1993

    13 or in the autumn of 1993. So here in March of 1993 is

    14 the vice-president of Herceg-Bosna stating what the

    15 position was in Vares. Finger on the pulse, interested

    16 and in communication.

    17 The following entry relates to the second

    18 defendant, refers to a request to make changes in the

    19 formation of the units, namely, to form a Vitez Brigade

    20 and to bring back Cerkez from the earlier-formed Novi

    21 Travnik Brigade to Vitez, and this request is signed by

    22 somebody called Skopljak.

    23 The next entry, again appropriate to draw it

    24 to your attention, on a Radio Zagreb broadcast, the

    25 first defendant gave an update on the situation in

  80. 1 Busovaca. He warned of unacceptable behaviour by some

    2 individuals and groups within the HVO of Central

    3 Bosnia, mentioned the example of a group of HVO members

    4 raiding the flat of Ibrahim Hodzic in Busovaca, beating

    5 him up, and he later succumbing to his injuries, the

    6 first defendant saying "such behaviour will not be

    7 tolerated within the HVO ranks and all offenders will

    8 be punished."

    9 Well, again, like so many entries, and at

    10 this stage of any trial, capable of cutting two ways:

    11 Showing certainly his recognition of the duty to punish

    12 those who offend and indeed expressing, whether ever

    13 realised or not, an intention to punish in respect of

    14 this incident.

    15 Over to page 29.

    16 JUDGE MAY: Mr. Nice, when you get to a

    17 convenient part, we will adjourn.

    18 MR. NICE: Thank you very much.

    19 JUDGE MAY: You could help with the date of

    20 the Vance-Owen Plan.

    21 MR. NICE: I can help with its signing,

    22 because we're about to come to that, by Izetbegovic,

    23 but I can't help with the date immediately of its

    24 generation --

    25 JUDGE MAY: Its publication. That would be a

  81. 1 helpful date.

    2 MR. NICE: It may be on my learned friends'

    3 chronology. If it isn't, we will have it for you after

    4 the short adjournment.

    5 I can just get to the end of March, if that

    6 would be convenient, and then that will take us on to

    7 April.

    8 On our page 29, we see at the top of that

    9 page, and again there is some material, this is a

    10 Defence Exhibit in the Blaskic case, so I don't think

    11 it is physically in our papers but I know it exists

    12 and, therefore, I thought you might like to know about

    13 it, it's an order signed by Cerkez stating that the

    14 behaviour of conscripts at all levels needs to be

    15 assessed and the names of perpetrators of criminal acts

    16 needs to be identified. That's on the 18th of March.

    17 On the 23rd of March, Cerkez issued an order

    18 stating that the HVO made intensive preparations for

    19 securing facilities in the village of Kruscica where

    20 the Bosniak population was in the majority. Again,

    21 that's not exhibited.

    22 According to a Blaskic Defence Exhibit,

    23 Cerkez was appointed as the commander of the Viteska

    24 Brigade on the 24th of March, and I think it's on the

    25 25th of March that Izetbegovic signed up to the

  82. 1 Vance-Owen Plan, and that's not on your schedule but I

    2 think that's the appropriate date.

    3 The 26th of March, the plan placed a number

    4 of provinces under joint HVO and ABiH command and

    5 Province 10, which included Vitez and Busovaca, was one

    6 of them.

    7 The last entry then for March of 1993, the

    8 31st of March, is an order -- again, this is a Blaskic

    9 Defence Exhibit -- an order signed by Cerkez further to

    10 the order of Blaskic "that members of all units should

    11 wear HVO insignia only. Other symbols must be

    12 removed. It was noted that the wearing of

    13 HV insignia," i.e. Croatian army insignia, "by certain

    14 individuals has led to accusations over the direct

    15 involvement of HV units in the territory of the

    16 Croatian Community of Herceg-Bosna. Thus, the Republic

    17 of Croatia has been subject to allegations."

    18 Well, I have already made the point there

    19 will be evidence of the presence on the ground of

    20 Croatian forces and it feeds into a particular issue in

    21 the case, and there is the insignia being worn and it

    22 being aware they were being worn.

    23 Since I can remember that I have come to the

    24 end of a month, if that would be convenient?

    25 JUDGE MAY: We will adjourn now until half

  83. 1 past two.

    2 --- Luncheon recess taken at 1.00 p.m.
























  84. 1 --- On resuming at 2.30 p.m.

    2 MR. NICE: I gave you one incorrect date

    3 before the short adjournment, when I referred to Boban

    4 signing the Vance-Owen Plan on the 4th of January. If

    5 you noted that on your papers, it should be corrected.

    6 The correct position, as I'm advised, is that both

    7 Boban and Izetbegovic signed on the 25th of March of

    8 1993. Karadzic never signed, so it was never in

    9 force. And for what it's worth, I think Izetbegovic

    10 subsequently rescinded in any event, but the only date

    11 of signing was the 25th of March. We can make, of

    12 course, the United Nations documentation available if

    13 that's required.

    14 We've reached April of 1993. By this time,

    15 the Muslim forces had mostly been deployed to the

    16 perimeters of this immediate area, I think to the

    17 northwest of Travnik and to the northeast of the area,

    18 leaving the territory maybe substantially free or more

    19 free for the HVO.

    20 Just to review the position in which we find

    21 ourselves so far as the second defendant, Cerkez, is

    22 concerned. You've seen already how on the

    23 documentation he is shown to have joint responsibility

    24 both within the Novi Travnik and Vitez areas. He's

    25 within the command structure for both. Evidence will

  85. 1 be of the troops that he was in charge of being

    2 involved directly in the attacks, and you will also

    3 hear evidence -- and this is significant for the

    4 indictment -- of his sending prisoners to Kaonik, which

    5 explains why in the persecution count, he features for

    6 Busovaca as a third area as well as the other two under

    7 his immediate brigade responsibilities.

    8 Can I pick up, then, please, where we left

    9 off, on page 29 of the chronology in April of 1993.

    10 The first material event is the Ocenica attack, and I

    11 apologise for getting the pronunciation wrong; I hope I

    12 will improve in the course of the trial. It was first

    13 attacked by the HVO on or about the 1st of April. All

    14 houses were set on fire and at least one civilian was

    15 killed. On the 2nd of April of 1993, if you would be

    16 good enough in your papers to go to one of the last few

    17 pages I'm going to invite you to look at, it's page

    18 5467, and if that can be found, 5467, we can put it on

    19 the screen to make things a little more interesting for

    20 those in the public gallery.

    21 This is a joint statement dated the 2nd of

    22 April of 1993 by Alija Izetbegovic and Mate Boban,

    23 reading:

    24 "After the both parties signed the Peace

    25 Plan of Vance-Owen, Mr. Alija Izetbegovic and Mate

  86. 1 Boban agree that:

    2 "1. All misunderstandings between the Croat

    3 and Muslim nation about the borders of provinces,

    4 temporary government in them and in the Republic of

    5 Bosnia and Herzegovina are settled.

    6 "2. All army forces of HVO and the police of

    7 the Croatian Community of Herceg-Bosna, and B&H army

    8 and MUP B&H, that are by [as in document] have their

    9 origin outside of the borders of the provinces must be

    10 identified and leave the provinces within three (3)

    11 days.

    12 "3. Toward the total demilitarisation of B&H

    13 foreseen by peace plan and for the effective defence

    14 from the aggression, the homeland army forces of HVO

    15 and B&H in the provinces numbered 1" -- and I think

    16 that's 8 and 9; I can't read it -- are put under the

    17 command of the General Headquarters of the Army of B&H,

    18 and in provinces 3, 8, and 10 under the command of the

    19 General Headquarters of the HVO.

    20 The possibility of leaving the provinces is

    21 permitted to those forces which do not accept this

    22 decision.

    23 "4. The General Headquarters of HVO and

    24 General Headquarters of the B&H Army are obliged to

    25 form a joint Headquarters for these two bodies not

  87. 1 later than April the 15th 1993.

    2 "5. The conflicts between HVO and B&H Army

    3 should stop immediately and never start again.

    4 "6. The free passage of people and goods

    5 should be made possible immediately on all roads and

    6 free territories of the above-mentioned provinces."

    7 So that here was an agreement following on

    8 from the Vance-Owen Plan, which both these men had

    9 signed, by which the relevant --

    10 JUDGE MAY: Before we leave that document,

    11 Mr. Nice, help us, if you will, with some of the

    12 initials. "MUP"; what does that mean in this

    13 particular document? I think we probably know, in

    14 general terms, but let us be sure.

    15 MR. NICE: Ministry of the Interior, I think,

    16 is the approximation.

    17 JUDGE MAY: Ministry of the Interior?

    18 MR. NICE: Bosnia and Herzegovina.

    19 JUDGE MAY: Police?

    20 MR. NICE: Yes.

    21 I'm sorry, I should have dealt with that as I

    22 was going through it. I think we've covered all the

    23 others, have we not?

    24 JUDGE MAY: I think there has been a glossary

    25 one way or another.

  88. 1 MR. NICE: Incidentally, we will provide a

    2 glossary of terms. It will probably be helpful,

    3 because proceeding by way of initials I must confess I

    4 have found difficult, perhaps for just the first six

    5 months, but it takes a long time for them to sink in.

    6 JUDGE MAY: Yes, I think that would be

    7 helpful, and the earlier probably the better that we

    8 have it.

    9 MR. NICE: Yes, we will. We've provided a

    10 list of relevant names, but I think a glossary would be

    11 of further assistance, yes.

    12 JUDGE MAY: Yes. Judge Bennouna wishes to

    13 raise a point.

    14 JUDGE BENNOUNA: (Interpretation) Thank you

    15 very much, Mr. President.

    16 Can you follow me?

    17 MR. NICE: Yes, Your Honour.

    18 JUDGE BENNOUNA: (Interpretation) The

    19 Presiding Judge raised the question in relation to the

    20 presidency earlier on, and more specifically in

    21 relation to Mr. Boban, and I believe you said there is

    22 no mention made any more of Mr. Boban in the chronology

    23 because he was supposed to be dead, and here we find

    24 him again a few moments later, or a few months later,

    25 rather. Could you enlighten us as to this joint

  89. 1 declaration or statement signed, among others, by

    2 Mr. Boban, who was supposed to be dead earlier on.

    3 MR. NICE: Entirely my failure in not making

    4 myself clear. When I said that he was recorded as

    5 dead, I didn't mean he was recorded as dead at the

    6 particular instant in the chronology that we had

    7 reached when Judge May asked me the question. The

    8 position is that since these terrible matters into

    9 which you are inquiring occurred, he has been recorded

    10 as dead; therefore he hasn't been the subject of

    11 investigation by the Office of the Prosecutor here in

    12 this Tribunal, but he was of course alive at the time

    13 of the signing of this document. I can't remember now,

    14 I'm sorry, when he was first recorded as dead --

    15 July '97; I'm grateful to Ms. Somers. I wasn't saying

    16 that you wouldn't hear any more of him in the

    17 chronology, or at least if I said that, that's not what

    18 I intended. I merely meant that you weren't going to

    19 hear any more of him in terms of evaluation of his

    20 responsibility that emerges from the papers, which

    21 speak volumes in themselves, because he hasn't been a

    22 living proposed defendant or anything of that sort.

    23 JUDGE BENNOUNA: (Interpretation) But if this

    24 is so, the question asked by the Presiding Judge could

    25 be answered by you in a more clear fashion. Since he

  90. 1 was regarded or recorded as dead in 1997, how come that

    2 in the entire chronology, only the vice-president is

    3 mentioned, and we can't see any intervention by the

    4 president during the chronology of events? I think

    5 that the Presiding Judge was asking the question in

    6 that way. We can see that the first defendant, as a

    7 vice-president, was there, but we can't see any

    8 intervention on the part of the president of the party

    9 of the HVO community. So why is that so? Because you

    10 answered in saying that he was recorded as dead, and we

    11 believed that he was dead at the time when events

    12 unfolded, but he actually died much later on. So your

    13 question wasn't quite -- the answer wasn't quite

    14 satisfactory.

    15 MR. NICE: I'm very sorry.

    16 JUDGE BENNOUNA: (Interpretation) Because it

    17 led us to believe that he was already dead by the

    18 time -- you know, we were taking on the chronology. I

    19 hope you will avail yourself of this opportunity to

    20 answer this very relevant question raised by Judge May

    21 which was to know why, so far in the chronology, we can

    22 see the vice-president but not the president.

    23 MR. NICE: Well, the answer to that question

    24 is that these are the documents that are of course

    25 significant in the case of Mr. Kordic; these are the

  91. 1 documents that we rely on and the documents which we

    2 have. Also I'm not aware of any particular volume of

    3 documents being available to me or any other documents

    4 significant to this case that bear his name as a

    5 executive officer dealing with these matters. So these

    6 are the documents and this is how things emerge from

    7 the documents available to us. That's the position.

    8 It may well be that these documents reflect the reality

    9 of activity on the ground and the giving of

    10 instructions on the ground.

    11 But I'm sorry for the misunderstanding that

    12 arises. I suppose in part it's because of one's

    13 delicacies, even in these circumstances, about people

    14 recorded as dead. You are always somewhat reluctant to

    15 speak too much of those who aren't there in any sense

    16 to answer themselves. But that's the position.

    17 Beginning of April, then, at the 2nd of

    18 April, and I've just dealt with that statement, that

    19 statement doesn't in a sense amount to a deadline of

    20 the 15th of April, but it expects, by the agreement,

    21 that there will be compliance with the monopoly of HVO

    22 in provinces 3, 8, and 10 by the 15th of April.

    23 If we go over now to page 30 in the

    24 chronology, a comparatively small detail at the top of

    25 the page, second entry, the 8th of April in Travnik,

  92. 1 where there was a meeting of the presidents and

    2 vice-presidents of municipal HVOs with HVO military

    3 commanders, present was Kordic, as a colonel, and

    4 vice-president of HDZ for BiH and of Herceg-Bosna, so

    5 in two capacities, as vice-president of the party and

    6 of the Herceg-Bosna quasi-state, and one of the

    7 recurring issues in this case, recurring from time to

    8 time, requests for the flags to be flown. Of course,

    9 the flying of flags does have an effect on people of

    10 the other disposition or the other interest.

    11 The bottom of the page, the same page, we

    12 come to the 15th of April itself. Now, it may be in

    13 due course, and I have forecast this to some degree

    14 already, that you will be satisfied that the events in

    15 the villages on the 16th of April required planning,

    16 and not just planning of hours but planning of days,

    17 the movement of artillery and so on to the various

    18 locations in which and from which such equipment was

    19 used. That means, because we know that the major

    20 attacks are coming on the following day, the 16th of

    21 April, that by this time, the 15th of April, plans must

    22 already have been made. Therefore, it just may be

    23 worth having in mind that the actions of the

    24 defendants, and indeed others, can be judged with that

    25 possibility in mind.

  93. 1 What is certainly important to have in mind

    2 is this: If you look at the second entry from the

    3 bottom of the page, you will see reference to Kordic

    4 and Blaskic informing the press about the abduction of

    5 the commander of the Zenica HVO brigade. The position

    6 here was, not only was that HVO commander abducted, I

    7 think as part of a tit-for-tat -- something like that,

    8 a tit-for-tat method to release some other prisoners,

    9 but significantly his bodyguards, and I think one

    10 innocent Muslim, were killed -- he wasn't killed but

    11 some bodyguards were -- on the 15th of April. Of

    12 course, that gave the HVO much to complain about. But

    13 before one would make the leap between that event and

    14 what was to happen the following morning, one has to

    15 bear in mind that the planning, on the evidence that

    16 will be before you, would require far earlier planning

    17 than that, so that it may be you will conclude that the

    18 occurrence of an incident likely to inflame the HVO,

    19 that is, the arrest or abduction of one of their

    20 commanders and the attacks the following morning, is a

    21 coincidence.

    22 But that night or that afternoon, the bottom

    23 entry on the same page says:

    24 "Several witnesses observed Kordic and

    25 Kostroman on TV demanding the surrender of BiH army

  94. 1 units into HVO control ..."

    2 Of course, this is the date set out on the

    3 joint statement of Izetbegovic and Boban.

    4 "... with plans and maps on the television

    5 detailing the Vance-Owen proposals."

    6 Kordic saying various things, as spoken of by

    7 witnesses, who, of course, heard these things with

    8 more-than-a-little concern, his saying that his troops

    9 "... only waiting for orders ... inciting Croats ..."

    10 as to their action, saying of his own forces that they

    11 "were staying in the Bungalow at Nadioci and they were

    12 being attacked ..."

    13 Over the page:

    14 "... calling for Croat brothers to

    15 fight ..." and showing temper "and said there will be

    16 no more negotiation, only war."

    17 That same afternoon or evening, the 15th of

    18 April, at Donja Veceriska, he was seen in camouflage in

    19 a bar together with troops of the HVO and some others

    20 in uniforms with Joker patches, Jokeri being one of the

    21 troops most closely associated with wrongdoing in this

    22 area. Bear in mind, if you will, the village, Donja

    23 Veceriska, although, of course, all these villages are

    24 terribly close together. We can provide details of

    25 distances on, I hope, a chart that can be agreed in due

  95. 1 course. But nevertheless, that is where he was found.

    2 Later that day, things were said and done

    3 which might have given comfort to the Muslims. They

    4 were invited, for example, to meetings the following

    5 day. Mr. Cerkez made an invitation to the ABiH

    6 festivities and indicated that all was well, and there

    7 was another suggestion of a meeting the following day

    8 that was going to take place, witnessed by another

    9 witness.

    10 What, in fact, happened? Well, at 2.00 on

    11 the morning of the 16th of April, villagers from that

    12 very village of Veceriska moved out if they were

    13 Croatian, i.e. it was clear on information received

    14 that there was a reason to move out, and in that

    15 morning, the series of attacks occurred. Again, I'm

    16 not going to go through them all now. I will deal

    17 briefly with that very village itself, Veceriska,

    18 because it fits in with what I have just been

    19 explaining.

    20 In the early hours at about 2.00, Croatian

    21 families were moved from the village in preparation for

    22 the attack which occurred at half past five with HVO

    23 forces attacking Muslims. Mortars and artillery

    24 shelled the village from a hilltop position. The

    25 bombardment was followed by infantry. As areas of the

  96. 1 village were taken by the HVO forces, explosives were

    2 thrown into homes, houses were burned, and many Muslim

    3 civilians were killed or driven from their homes. The

    4 Muslims, and Croatians married to Muslims, were driven

    5 from the village. HVO soldiers worked their way across

    6 the village from west to east, burning Muslim houses

    7 from one end of the village to the other.

    8 So far as Ahmici itself is concerned, that

    9 attack started at pretty well the same time, about

    10 5.40, under the command of somebody now dead called

    11 Santic. Among the units involved were the special

    12 units of the Jokeri and the Vitezovi. The village was

    13 shelled from a number of locations, including a

    14 location close to HVO barracks specially used by the

    15 Jokeri, and from both within and from outside the

    16 village. Reportedly the attack came from three

    17 different directions.

    18 The HVO targeted houses, stables, sheds, and

    19 livestock owned by Muslim civilians. First, the houses

    20 were shelled from a distance; then groups of three or

    21 more soldiers went from house to house and attacked

    22 civilians and their property using tracer rounds and

    23 explosives. Several houses were set on fire by pouring

    24 accelerants on the outside or on the inside and setting

    25 them on fire. At least eleven houses were burning and

  97. 1 ten houses were targeted within minutes. All in all,

    2 every Muslim-owned house in Ahmici was torched; the

    3 minaret was brought down, the minaret from the mosque

    4 was brought down with the use of explosives; Muslim

    5 civilians who were clearly unarmed were deliberately

    6 and systematically targeted, killed, or wounded. One

    7 witness's entire family was shot, including an infant.

    8 Then the house was set on fire and the survivors burnt

    9 alive.

    10 In the case of a 14-year-old witness, his

    11 mother, father, and two little sisters were shot trying

    12 to escape, and only he and one of his sisters survived.

    13 These are only examples of what happened.

    14 Witnesses in Ahmici saw about a hundred HVO

    15 soldiers on their way to the neighbourhood of Zume and

    16 ten minutes later on their way back from that

    17 neighbourhood. In the meantime, a large amount of the

    18 houses in that location were set on fire and a large

    19 proportion of the Muslim inhabitants were killed.

    20 Well, I needn't go on. That is the nature of

    21 the incident with which you are concerned on the day,

    22 the early hours of the morning of the 16th of April,

    23 and there are many other locations to deal with.

    24 We turn over to page 32 of the chronology.

    25 Sometimes, incidentally, for entries on a given date,

  98. 1 it's inevitable at this stage they won't necessarily be

    2 in the right order for the times of day. So that here,

    3 for example, if you look at page 32, the first entry,

    4 with Blaskic issuing an order to the 4th Military

    5 Battalion based at Travnik to return and send back-up

    6 troops to the Vitez Brigade troops, is, in fact, an

    7 order that I have now identified as being sent at 19.40

    8 hours in the evening, so it's probably a later event

    9 than some, or it may be all, of the other entries for

    10 the 16th of April.

    11 The second entry relates to Cerkez, who was

    12 heard talking over the Motorola, giving orders to kill

    13 people and, indeed, to destroy their mosques. There

    14 was evidence heard of his particular involvement in an

    15 attempt, or it appears to be an attempt, to fire at a

    16 mosque, and his instructions, in strong terms, that

    17 they should carry on shooting at that particular

    18 target.

    19 Interestingly, at just after a quarter past

    20 one, when Cerkez was asked over a Motorola mobile phone

    21 if it was possible to shoot a target that had been

    22 mentioned before, he said that he was satisfied with

    23 the shot. But later the witness, who asked Cerkez to

    24 stop an attack, the attack ceased. A clear

    25 implication, as set out in this entry, is that the

  99. 1 soldiers engaged in this attack were under Cerkez's

    2 control.

    3 If we look down the page to the 17th of

    4 April, the Court will see, and they can find the

    5 document at page 5444, a fax -- I think it's a fax --

    6 sent to the British battalion commander, Colonel Robert

    7 Stewart -- perhaps this one can go on the ELMO as

    8 well. This is in English but is not a translation.

    9 It's an original document reflecting the ability of

    10 someone in the relevant department to speak English at

    11 this level.

    12 "Subject: An appeal for help for Croats of

    13 Zenica."

    14 "We beg You to do all that is possible to

    15 protect the Croats of Zenica who are under an enormous

    16 aggression of the mujahedin forces who even started

    17 using tanks against women and children.

    18 "We ask Your help in organising the

    19 evacuation of the Zenica Croats to the area of Cajdras.

    20 "We ask You to block all the possible roads

    21 and to protect its areas from the Muslim forces attacks

    22 who are to be stopped immediately.

    23 "We also beg and appeal to you to do all

    24 that you objectively can; if not, this is going to be

    25 the most horrible crime that has ever happened to

  100. 1 Croatians before."

    2 There are three places typed for signature,

    3 the Minister of Defence, the Secretary-General, and the

    4 Vice-President, with names, one of which is Kordic, and

    5 initials or signatures over all three names.

    6 The same question that I have averred to

    7 likely before arises and it may arise with more force

    8 if there is evidence that there was a general

    9 complaint, perhaps in faxes and other correspondence to

    10 the British Battalion, about the suffering of the HVO,

    11 and that question is: Was this a smokescreen? For

    12 when these matters were investigated by the British

    13 Battalion, it may be that they were found to be without

    14 foundation or without the hyperbolic foundation

    15 referred to in documents such as this.

    16 If you would be good enough, please, to turn

    17 over the page in the chronology, the first entry coming

    18 from ECMM Monitor Morsink, shows his meeting again with

    19 Mr. Cerkez, talking about some murders allegedly

    20 committed in Zenica, trying to calm Cerkez down, he not

    21 wanting to lift roadblocks because of his concern for

    22 an attack from elsewhere, saying he was worried for the

    23 Croat prisoners and explaining he would give

    24 authorisation in respect of certain detained persons.

    25 During the second meeting that same day,

  101. 1 Cerkez complaining about the alleged massacres at

    2 Zenica and threatening to destroy some Muslim houses.

    3 All this, in our respectful submission to you, will

    4 have, in due course, to be set aside what may have been

    5 the true mental state of these people if, as is

    6 asserted by the Prosecution, they were, in fact,

    7 knowingly involved in what had gone on.

    8 Two entries -- one entry further down, the

    9 19th of April of '93, and can I invite you simply to

    10 link that entry, for it should be so linked, with the

    11 entry third up from the bottom? It's really a double

    12 entry. I beg your pardon. Forget what I've just said.

    13 The Zenica entry stands alone.

    14 Zenica was shelled in the daylight -- I think

    15 it may even have been a holiday -- 15 civilians were

    16 killed, 18 wounded in the shopping district, six high

    17 explosive shells having been fired from HVO positions

    18 in Puticevo. The same day, next entry, in Stari Vitez,

    19 there was what may be judged by the Tribunal to be no

    20 more or no less than an act of terrorism designed to

    21 intimidate or terrify, when a truck explosion in broad

    22 daylight, Stari Vitez, resulted in the deaths of some,

    23 I think, five civilians and two ABiH soldiers, and it

    24 is that entry, if you would be so good, you could link

    25 with the entry third up from the bottom for they are

  102. 1 reflections of the same event.

    2 Was this nothing to do with the HVO, or was

    3 this all part of a clear, concerted plan to ensure that

    4 people left these areas? That will be for this

    5 Tribunal to decide.

    6 If the Tribunal then looks at the entry at

    7 the middle of the page -- no, three-quarters of the way

    8 down the page, the 19th of April, the first defendant

    9 on television speaking of a warehouse in Stari Vitez

    10 that had exploded and speaking of the possibility of

    11 that being repeated.

    12 Over the page, please, to page 34.

    13 On the 20th of April, civilians were being

    14 used in Vitez, Hotel Vitez, Blaskic's HQ, as human

    15 shields.

    16 On the 21st of April -- next entry but one --

    17 Ahmici had been visited, and the level of destruction,

    18 if it hadn't been discovered already, was now becoming

    19 real and, of course, notorious throughout, really,

    20 Europe, I think.

    21 The next entry, on the 21st -- and all this,

    22 incidentally, at a time when Busovaca town was still

    23 under attack -- the next entry ends, for the 21st of

    24 April, in this way, and it's from a Blaskic Defence

    25 Exhibit -- perhaps I should read all of it. This is

  103. 1 the notes of a meeting signed by Blaskic, sent to

    2 Kordic as vice-president of Herceg-Bosna. It deals

    3 with negotiations between the ABiH and the HVO chiefs

    4 of staff when an ambassador, as he is described, was

    5 present. Sets out the agreements, cessation of combat,

    6 separation of forces, unhindered patrolling by the

    7 United Nations between Kiseljak and Travnik, and full

    8 guarantees for the Muslims in Vitez and Zenica.

    9 Amongst other observations was this, that a

    10 large number of civilian casualties, mention made that

    11 Merdan was worried about 500 civilians killed at Vitez,

    12 Blaskic noting that the opinion about him seems to be

    13 that he'll be all right without Kordic giving him

    14 orders. That is his big problem -- that is a big

    15 problem for everyone.

    16 Further down the page, next entry but one.

    17 Now on the international news media, there was an HVO

    18 statement issued which admitted that some commanders

    19 and their troops were acting outside the control of the

    20 HVO. It was said that the HVO command would take

    21 strict measures against such individuals and groups,

    22 and such acts cannot be called anything but terrorism.

    23 Everything would be done in the power of the Croatian

    24 government, it may be, to ensure that those responsible

    25 for fighting between Croats and Muslims will be

  104. 1 punished.

    2 Same observations, same point about the

    3 sincerity and genuineness of these publications, as it

    4 were.

    5 On the 26th of April, second entry from the

    6 bottom, British Battalion Colonel Stewart met Kordic to

    7 express his disgust over Ahmici. At that time, the

    8 replied suggestion was that the Serbs were responsible.

    9 In a newspaper or -- I think in a newspaper

    10 he stated, following entry, that Muslims had attacked

    11 Busovaca and it was said that the Sunday attack was

    12 carried out by seven Muslim brigades and the Croat side

    13 suffered casualties. Let me make the point -- it is

    14 probably obvious -- but, of course, in the same way as

    15 I have made it plain at the beginning, there is no

    16 suggestion that there was one-way traffic at all in

    17 this area. Of course, there was blame at some stages

    18 on all sides and, of course, in relation to these

    19 various attacks, to different degrees, there were

    20 measures of defence and counterattack, no doubt. It

    21 will be for you to decide in due course to what extent

    22 the forces were equally matched, to what extent, if at

    23 all, the resistance that may have existed justified

    24 crimes of the kind that will be proved.

    25 If you would be good enough, please, to turn

  105. 1 over the page, I can tell you that we will move very

    2 swiftly now towards the end of this document because we

    3 only have one other significant event to deal with, but

    4 I must set the thing in its context.

    5 On page 35, second entry on the 27th. The

    6 first defendant now told Colonel Stewart and the media

    7 not that the Serbs were responsible but that the

    8 Muslims were responsible for attacking civilians and

    9 making the ceasefire unworkable. He also stated that

    10 former members of the extreme nationalist Croat force,

    11 the HOS, were responsible for the Ahmici massacre, and

    12 that he had arrested five men who would be brought to

    13 justice.

    14 The next entry, he promised to set up a

    15 tribunal to investigate the atrocities and claimed he

    16 had arrested five members thought to be responsible.

    17 Well, no signs of that having brought any effective

    18 trial.

    19 29th of April, back to Mr. Cerkez seen

    20 visiting one of the various sites used for detention of

    21 prisoners, the Vitez cinema.

    22 On the 30th of April, he was seen during a

    23 visit of the Muslim general, Halilovic, when there was

    24 the release of exchanged prisoners. The prisoners gave

    25 the Red Cross a list of people killed and wounded while

  106. 1 digging trenches. Cerkez said -- I'm sorry, I'm going

    2 too fast-- Cerkez said to the people that were released

    3 that if they shot at all from their houses, they would

    4 themselves be killed.

    5 Third entry from the bottom, when spoken to

    6 by a witness, Hay, last part of this entry, he denied

    7 any implication, did Mr. Cerkez, in the Ahmici massacre

    8 and affirmed that the Muslims perpetrated the attack in

    9 order that responsibility would fall on the HVO.

    10 The following entry has the first defendant

    11 recorded as saying that the HVO will do everything they

    12 can to establish full Croatian power in the Croatian

    13 provinces.

    14 Over to page 36, the witness Payam Akhavan,

    15 on the 2nd or 3rd of May, met the second defendant, who

    16 denied any HVO implication in the Ahmici massacre.

    17 Kordic also suggested that the massacres could have

    18 been committed by the Serbs or the Muslims to move the

    19 international opinion, and said that the HVO could not

    20 have committed the offences, because of their religious

    21 beliefs. He was reminded of his duty to investigate

    22 the crimes that had undoubtedly been committed.

    23 At the bottom of the page, a witness called

    24 Alastair Duncan, on the 9th of May, spoke to Kordic

    25 about Ahmici, and at that stage he had no response to

  107. 1 the questions that were being asked.

    2 On page 37, the third entry, on the 10th of

    3 May, recorded as saying that coexistence with Muslims

    4 in Bosnia-Herzegovina is impossible.

    5 Over the page, page 38. In some of the

    6 newspaper reports for the 23rd of May, his declaring

    7 that Bosniak refugees could return home only when all

    8 the houses of their Croatian neighbours had been

    9 rebuilt with Bosniak money.

    10 On the 26th of May, accusing Izetbegovic of

    11 attempting to create an Islamic state.

    12 To page 39, please. In June -- I shan't

    13 trouble you with the detail -- further attacks on Novi

    14 Travnik, Tulica, Han Ploca, and elsewhere in the

    15 Kiseljak area.

    16 On the 6th of June, a British battalion

    17 milinfosum report stated that the local commanders were

    18 disparaging of Blaskic, and that Kordic was the only

    19 power they referred to, clearly the power in the

    20 region. Locals also claimed they would lift a certain

    21 roadblock on the orders of Kordic only and were not

    22 interested in the orders of Blaskic.

    23 The following entries may not be entirely in

    24 the correct order, the following four. The Convoy of

    25 Joy, a convoy of humanitarian aid, was stopped on the

  108. 1 Vitez bypass by a manifestation, an orchestration of

    2 people, and indeed, if you look to the fourth entry, by

    3 the 11th of June the second defendant was seen engaged

    4 in that manifestation, although attempting to hide

    5 himself.

    6 Going further up to the first of the entries

    7 for the 10th of June, the witness Duncan took Blaskic

    8 to remove the blockade, but the HVO troops who had

    9 imposed the blockade -- which of course enabled the

    10 vehicles to be looted, and other crimes, including I

    11 think killings to be committed there -- those troops

    12 would only take orders from Kordic, and it was when

    13 Duncan met Kordic and Blaskic to discuss the Convoy of

    14 Joy incident that Kordic agreed to the demands, and

    15 because locals would only remove roadblocks on Kordic's

    16 orders, had them I think carried out, but not until

    17 after the damage or some of the damage and some of the

    18 looting had been done.

    19 If you turn over, please, two pages, to page

    20 41, an entry at the top of the page, July/August of

    21 1993, two civilians from Stari Vitez taken as hostages

    22 at the cinema while they had gone out for medical care

    23 and detained by Cerkez to enforce an exchange or to

    24 attempt to force an exchange for other prisoners from

    25 the HVO.

  109. 1 Over, please, to page 42. At the bottom of

    2 that page, in Mostar or thereabouts, the first

    3 defendant was interviewed and announced on television

    4 that he would attend a plenary session where the

    5 Croatian Republic of Herceg-Bosna was to be proclaimed

    6 and founded as a legal state. Kordic and others had a

    7 consultation meeting with Boban earlier in the day,

    8 Kordic stating that Bosnian Croats are preparing the

    9 territory they deserve. The main conclusion is, "we

    10 need complete unity of Croatians in Bosnia and

    11 Herzegovina." He was in uniform. Kostroman had an HVO

    12 arm patch on, and this was a television programme which

    13 may have been totally sympathetic to their cause and

    14 effectively something that put out information in their

    15 favour.

    16 The next entry but one, again, a press

    17 conference. Kordic stated he visited the HVO soldiers

    18 in Central Bosnia and other operative zones stating he

    19 had visited them, they are fighting in the Lasva Valley

    20 under the command of Ivica Cobanac. With their

    21 struggle they are affirming the desire of Croatian

    22 people of the Croatian Republic of Herceg-Bosna.

    23 The following entry but one, President

    24 Tudjman in an interview said, "It must be clear that a

    25 struggle is taking place for the strategic security of

  110. 1 the Croatian state in the future. A look at our

    2 borders shows that our borders, such as they are, are

    3 very insecure if a Croatian population does not live in

    4 Dalmatia's hinterland. Imagine the Croats in

    5 Bosnia-Herzegovina in a unitary state with two million

    6 Muslims and a million and a half Serbs. Their

    7 demographic survival would be called in question."

    8 So, as it were, at the beginning and towards

    9 the end of the period with which we are concerned, a

    10 voice from outside, a voice that would command great

    11 respect, making clear what was perceived as in the

    12 interests of the Croats by way of a unitary state.

    13 Could I ask people please to delete the next

    14 entry entirely -- it's a duplication entry, 29/93, --

    15 and also to delete the second entry from the bottom,

    16 which is again a duplication entry. That leaves two

    17 intervening entries for the 20th of September, and I

    18 think they are actually just about the wrong way round,

    19 but it doesn't matter. Would you be good enough,

    20 please, to go to page 5347.

    21 This is an order dated the 20th of September

    22 of 1993. Over the page, it's been signed by three

    23 familiar names: Colonel Dario Kordic, Ignac Kostroman,

    24 and Anto Valenta, Kordic's address being given as the

    25 head of the forward command post of the office of the

  111. 1 president of the republic.

    2 Coming back to the front page of this

    3 document, what's the order about? Paragraph 1:

    4 "All conscripts performing compulsory work

    5 service at the SPS factory are to be placed at the

    6 disposal of the Novi Travnik Stjepan Tomasevic and

    7 Vitez Viteska Brigades." This is an order dealing with

    8 the disposition of conscripts.

    9 The next document -- and I think it may be

    10 the last I'm going to ask you to look at, I'm not sure

    11 -- is at page 5351, so it's actually a little earlier

    12 in the bundle. Yes, I was right; they're the wrong way

    13 round.

    14 On 5351 is an order of the same date, which

    15 has been agreed to by Colonel Dario Kordic, head of

    16 this forward command post at the office of the

    17 president, and it reads:

    18 "1. Duties stipulated in article 14 of the

    19 decree on the armed forces are to be transferred to the

    20 Vitez Viteska Brigade.

    21 "2. Officials of the Vitez Defence Office

    22 will IMMEDIATELY contact the Viteska Brigade

    23 Commander."

    24 The next one, on the 20th of September, the

    25 Viteska Brigade commander and the head of the office

  112. 1 are to carry out a committee-supervised transfer of the

    2 duties, documentation on equipment and premises of the

    3 Defence office, and.

    4 "4. The Viteska Brigade will perform the

    5 duties of the Defence Office until the circumstances

    6 are rendered appropriate." Same issue, and same

    7 significance.

    8 I am grateful for being reminded that I have

    9 leapt over one entry that on this page I should have

    10 drawn to your attention. It's the entry second from

    11 the top, and that is that on the 28th of August, which

    12 should be '93, not '83, what had formerly been known as

    13 the Community, Herceg-Bosna, was now declared to be a,

    14 as it were, a free-standing republic, the Croatian

    15 Republic of Herceg-Bosna.

    16 If we move on, please, to page 45, we come to

    17 October, or to the end of October. Of course--

    18 JUDGE ROBINSON: Mr. Nice?

    19 MR. NICE: Yes, I'm sorry.

    20 JUDGE ROBINSON: I just wanted to have

    21 something clarified. The entry on the 28th of

    22 August '93, indicating the declaration of the Croatian

    23 Community of HB --

    24 MR. NICE: Yes.

    25 JUDGE ROBINSON: -- becoming the Croatian

  113. 1 Republic of HB. I think you had -- I can't find it --

    2 brought our attention to a certain notation where the

    3 first defendant signed as vice-president, and I wanted

    4 to have it clarified whether that was as vice-president

    5 of the Croatian Republic --

    6 MR. NICE: Thus far, he has always, when

    7 signing as the vice-president, it's been vice-president

    8 of the Community of Herceg-Bosna, because it hadn't

    9 thus far been declared to be a republic. So to date,

    10 unless I have missed it, he has signed as

    11 vice-president of the community, vice-president of the

    12 party, and vice-president of the HVO, on different

    13 occasions.

    14 JUDGE ROBINSON: Thank you.

    15 MR. NICE: And I'm grateful -- I missed it

    16 myself, of course. Mr. Scott reminds me the two last

    17 documents we've been looking at -- I suppose it's the

    18 afternoon heat -- where we've been looking at, he's

    19 been signing as a colonel for the forward command post;

    20 there, it's been the office of the president of the

    21 republic. So the terminology has changed. For

    22 example, on the document we have just been looking at,

    23 5351. So the republic is effectively pronounced in his

    24 title, but at the moment he is signing as the head of

    25 the forward command post at the office of the president

  114. 1 of the republic.

    2 If I can take you on page 45 of the

    3 chronology to the second entry, Martin Garrod met the

    4 first defendant, something described as the Busovaca

    5 Eagle's Nest, where the first defendant stated that

    6 Croats would leave Zenica of their own accord as they

    7 did not feel protected there. Zenica was not a place

    8 which the HVO could win. The statistics were against

    9 them. Kordic said a military solution was not in the

    10 interests of the State, as both sides were equally

    11 matched, and thus no clear military outcome is

    12 possible. He said he expected a major offensive in the

    13 Lasva Valley.

    14 What happened thereafter was the attack on

    15 Stupni Do, Stupni Do being a village near to Vares.

    16 Vares, you remember, is in the northeastern sector,

    17 separated from the other areas. This was another town

    18 that could not be taken for control by the HVO, but

    19 there were some Croats there. Why the village of

    20 Stupni Do should be attacked is a matter of some

    21 theorising, and you may hear the theories,

    22 extraordinary though some of them may be; but of course

    23 an attack by the HVO on the Muslims living in the

    24 village of Stupni Do might have had the effect of

    25 inspiring a more active Muslim response in that area

  115. 1 generally and might have had the effect of forcing

    2 Croats to leave that area and to come and join in the

    3 area where Croats were in a majority.

    4 But whatever was the reasoning, in Stupni Do,

    5 the attack under the command of someone called Ivica

    6 Rajic started at about 8.00 in the morning with about

    7 40 lightly armed Bosnians attempting to defend the

    8 village. Civilians in Stupni Do took to shelters and

    9 cellars as the attack started. They were overrun, or

    10 the defenders were overrun. The defenders withdrew to

    11 a main civilian shelter to try to protect the civilians

    12 who were located there.

    13 The HVO went from house to house looking for

    14 Bosnian Muslim civilians. Those found included women,

    15 children, the elderly, and the infirm. Their valuables

    16 were taken from them, and at least 16 were killed.

    17 Munitions were fired into the houses, which were

    18 burnt. That's probably as much as I need say about

    19 that, another terrible attack, with houses left

    20 destroyed and bodies left of those who should be

    21 alive.

    22 This attack also, of course, became known

    23 quite generally, and on the 25th of October, if you

    24 would be good enough to stay on page 45, Martin Garrod

    25 had a meeting with Kordic concerning some helicopters,

  116. 1 and he asked him about Stupni Do. You will recall the

    2 number of contacts I've revealed already between Kordic

    3 and Vares, the area in which Stupni Do lay, and the

    4 nature of those contacts. Kordic phoned someone,

    5 apparently Petkovic, reporting that nothing bad had

    6 happened but some civilians might have been killed. He

    7 said a lot of houses were burning and a lot of soldiers

    8 in and out of uniform had been killed. Most of the

    9 civilians had moved out and were now in Vares. And he

    10 said that speaking as a soldier and a human being, he

    11 severely condemned the atrocities committed by any

    12 side.

    13 Two entries further on, Garrod and de Baans

    14 met Kordic, who agreed that some houses had been burned

    15 -- this is on the 30th, five days later -- and that

    16 the HVO would not deliberately kill civilians. He also

    17 said suitable action would be taken after the inquiry

    18 was finished, and no one would be protected.

    19 Over the page, please, to 46. Fourth entry,

    20 it appears that the man Rajic, who has been identified

    21 as leading the attack on Stupni Do, had been

    22 dismissed. The middle of the page, there was Kordic

    23 reversing an order issued by Rajic, so that apparently

    24 in November of '93, maybe Rajic was still around.

    25 There may be no evidence of his having ever been

  117. 1 brought to book, although at the bottom of the page,

    2 last entry but one, on the 12th of November of 1993,

    3 Kordic announced an investigation into Rajic's role,

    4 and there was confirmation that he had indeed annulled

    5 the decision of Rajic. The report sets out -- well, I

    6 needn't trouble you with that. The Court will have to

    7 decide for itself whether these protestations about

    8 Stupni Do and the purported disciplining of Rajic was

    9 sincere or not. Rajic was never punished.

    10 The Washington Agreement was concluded in

    11 early March of 1994, and the violence was switched off,

    12 effectively. Kordic was re-elected as vice-president

    13 of Herceg-Bosna in June 1994 and promoted to a

    14 brigadier.

    15 There is one more document that you might

    16 look at, and it's towards the very end of your papers,

    17 at page 5325 (sic). It's a recommendation from -- if

    18 you look at the preceding page -- the Croatian Republic

    19 of Herceg-Bosna, Ministry of Defence. It's a

    20 recommendation for the award of decoration in respect

    21 of Dario Kordic. The proposed decoration is set out,

    22 and then in the text, "As chief of the Busovaca Defence

    23 Office at the very start of the aggression against the

    24 Republic of Croatia, he organised and started all

    25 activities aimed at blocking the Serbo-Chetnik military

  118. 1 in Central Bosnia. For his outstanding contribution to

    2 the formation of Croatian Defence Council units and the

    3 creation of war strategy, and for his great success in

    4 leading and commanding the Croatian Defence Council

    5 units during the Muslim aggression against the Lasva

    6 Valley and the wider region. During the bloodiest

    7 moments of the ordeal of the Croats in Central

    8 Bosnia --"

    9 JUDGE MAY: I'm going to interrupt. We can't

    10 find this page.

    11 MR. NICE: I'm so sorry. Can I just put it

    12 on the Elmo?

    13 JUDGE MAY: You said 5325.

    14 MR. NICE: 5235; I'm so sorry. It's right at

    15 the end. Could we put it on the ELMO, at any event?

    16 5235, right at the end. And it's the bottom part of

    17 the page, if the usher could be so good.

    18 Thank you very much. I'll start again,

    19 because there is nothing worse than hearing a document

    20 without having it in front of you.

    21 "As chief of the Busovaca Defence Office at

    22 the very start of the aggression against the Republic

    23 of Croatia, he organised and started all activities

    24 aimed at blocking the Serbo-Chetnik military in Central

    25 Bosnia. For his outstanding contribution to the

  119. 1 formation of Croatian Defence Council units and the

    2 creation of war strategy, and for his great success in

    3 leading and commanding the Croatian Defence Council

    4 units during the Muslim aggression against the Lasva

    5 Valley and the wider region. During the bloodiest

    6 moments of the ordeal of the Croats in Central Bosnia,

    7 he played a key role in all the battles and was a

    8 source of hope and faith in their survival in the areas

    9 of Bosnia and Herzegovina inhabited by Croats for

    10 centuries. Due to the unique historic importance of

    11 the decoration" -- that's administrative text. Again,

    12 a document obvious as to its significance.

    13 That, I think, effectively concludes what I

    14 want to say by way of opening. The position of the

    15 parties on the indictment is set out in the pre-trial

    16 briefs, and the indictments, although long documents

    17 and indeed very detailed documents, are probably not as

    18 complex as they appear to the person who reads them for

    19 the first time. Everything is incorporated in one

    20 sense in the persecution counts, and are broken down

    21 thereafter on a substantive count-by-count basis with

    22 different geographical breadths for Kordic from those

    23 applicable to Cerkez, and I have touched on those

    24 matters in some detail already.

    25 I end where I started. This is a long

  120. 1 history over a wide geographical area where the

    2 development of the suffering, if the Tribunal so finds

    3 it, of those who were victims of a campaign of

    4 persecution will have to be assessed over time; over

    5 the same period of time, the development of the

    6 defendants' theoretical roles and their actual roles,

    7 their theoretical power and their actual powers.

    8 Maybe, in addition to that, the Court will be

    9 interested to know how this could have happened, if it

    10 finds that it happened in the way the Prosecution

    11 allege, in war, to people who need not have led other

    12 than blameless lives. But, of course, in this case, as

    13 in all the cases before this Tribunal, where there is

    14 sympathy and understanding, it has to be for those who

    15 featured throughout this as victims and for whose

    16 respect we must ensure a proper conclusion, by the

    17 proper adduction and testing of evidence in this case.

    18 That is all I propose to say unless I can

    19 help you any further.

    20 JUDGE MAY: Thank you. We ought to consider

    21 the rest of progress today. There are matters

    22 concerned with translation which the Defence wish to

    23 raise, as I understand it. You also, Mr. Nice, wish to

    24 raise matters in relation to the protection of

    25 witnesses.

  121. 1 MR. NICE: Yes.

    2 JUDGE MAY: That will require a hearing, no

    3 doubt, in a closed session.

    4 MR. NICE: Yes, it will.

    5 JUDGE MAY: Have you any witnesses for whom

    6 you are not asking for protective measures?

    7 MR. NICE: No. No, not at the moment. No,

    8 not at the moment. Not who are here now, no, we don't.

    9 JUDGE MAY: Have you had a chance to discuss

    10 with the Defence the progress of this case? They are

    11 asking, I think, for time, because of the translation

    12 problems, before there is cross-examination.

    13 MR. NICE: I'm not sure what their final

    14 position will be and, in the event, I think -- I am

    15 only too happy -- I don't know if you are going to have

    16 a break now -- I am only too happy to discuss it. But

    17 I don't know, I'm not sure that I know what their final

    18 position is going to be, although I know that Mr. Smith

    19 spoke to Mr. Scott yesterday.

    20 JUDGE MAY: I am anxious to do as much as

    21 possible in open session before we go into closed

    22 session.

    23 Let me ask you about this: Now that you have

    24 had the chance of finally getting the case together, if

    25 I can put it that way, and presenting it to us, are you

  122. 1 in a position now to say how long you anticipate you

    2 will require to present this case, subject, of course,

    3 to the difficulties that you can't estimate how long

    4 the Defence are going to be, but subject to that?

    5 MR. NICE: It is very difficult for a number

    6 of reasons: (1) Yes, I don't know how long the Defence

    7 will be with any given witness; (2) I don't know what

    8 matters may ultimately be agreed, and it still seems to

    9 me there is scope for a wide measure of agreement on

    10 all sorts of matters that may otherwise take time; (3)

    11 I do not know to what extent, even if I want to call

    12 witnesses, they will necessarily all be available.

    13 That touches on a problem that we all know about.

    14 If I were simply to guess a figure, I would

    15 have to say it would be no more than a guess, and I

    16 don't really know that it would inform the Court. I

    17 think it would be almost irresponsible to pluck a

    18 figure from the air at the moment.

    19 JUDGE MAY: Well, the Prosecution usually are

    20 in the position you are in, they don't know what the

    21 Defence is going to say, they don't know how long they

    22 are going to take, and Prosecutors are usually required

    23 to give a time estimate. It doesn't seem an

    24 unreasonable request.

    25 MR. NICE: It is not an unreasonable request,

  123. 1 and I am happy to give you one, but it has to be

    2 extremely uncertain, and I would be surprised if our

    3 case occupied less than five months, I would have

    4 thought, that is 20 weeks, I would be very surprised.

    5 JUDGE MAY: I mention that because the Trial

    6 Chamber has been considering the length of this case,

    7 and now, of course, we are in a better position to do

    8 so than we were before now that we have had all your

    9 material, and we shall have to make a decision about

    10 how long we think it is proper that this case should

    11 occupy the Trial Chamber, bearing in mind that there

    12 are other cases which the Trial Chamber has to deal

    13 with and other accused who are awaiting trial.

    14 I mention that at this stage so that you

    15 should know what the position is.

    16 MR. NICE: Certainly, and that's helpful.

    17 The obvious problem is, it is our duty, as I have

    18 explained, we are here to lay evidence before you for

    19 the inquiry that you are making. We have a number of

    20 counts in respect of which we are duty-bound to present

    21 evidence to you and a number of issues upon which it is

    22 our duty to get the best evidence before you. It is as

    23 simple as that. And although, yes, of course, courts

    24 can, within limits, they can do what they like, but

    25 certainly you are empowered to cut us short, I imagine,

  124. 1 but it has to be recognised that there are dangers in

    2 foreshortening evidence in a case like this.

    3 I make it absolutely plain, lest there be any

    4 doubt about it, I have no interest in extending the

    5 duration of this case, either personally or

    6 professionally, standing where I am. Absolutely the

    7 reverse. The OTP, as an office, and I, as an

    8 individual, have every desire to move this case

    9 forward, not least so that another case can take its

    10 place before the courts of this institution, but there

    11 are dangers in any, not arbitrary, but in any decision

    12 to truncate a case's evidence, certainly without the

    13 very greatest consideration being given to the

    14 potential evidence that would thereby be being excluded

    15 for, as I hope I have made plain in my opening, this is

    16 a case -- it's not a case of calling so many witnesses

    17 who all prove that X did a particular crime. It is

    18 much more, in a sense, subtle or, in one sense, more

    19 difficult than that because a great deal of the

    20 evidence which goes one way also has elements which go

    21 the other.

    22 So apart from our need to present evidence on

    23 every count and every part of the count, for that's our

    24 duty, we also have a general duty to ensure that there

    25 is a full picture. So what I would invite the Tribunal

  125. 1 to say, and we quite understand your saying what you

    2 have said -- speaking for myself, I quite understand --

    3 we would urge you to give us notice so that we can give

    4 much more detailed consideration to it before

    5 discussing and then implementing any time guillotine.

    6 JUDGE MAY: Well, of course, you will have

    7 notice of any such ruling and, of course, it will be

    8 subject to your being heard.

    9 MR. NICE: Thank you.

    10 JUDGE MAY: But I am anxious that you should

    11 know that we have this in mind.

    12 MR. NICE: Very helpful.

    13 JUDGE MAY: As I said at an earlier hearing,

    14 therefore, it may be sensible for you to call the

    15 witnesses on whom you most rely as expeditiously as

    16 possible.

    17 MR. NICE: Those words have been understood

    18 and accepted, indeed, in a sense, they didn't need to

    19 be made because we already had that in mind.

    20 Although I don't want to go into this in any

    21 detail in an open session, as you may know from other

    22 channels, we are already encountering difficulties with

    23 witnesses of our first choice for one of two different

    24 reasons, one of which is transportation difficulties

    25 and the other of which is a more general reason. But

  126. 1 there it is. That is just one of the difficulties we

    2 face. But we are doing everything we can to bring that

    3 category of witness to the Tribunal as swiftly as may

    4 be.

    5 I don't know if you know, whatever the

    6 precise limits of your order as to a fortnight -- six

    7 weeks, in the first place, and a fortnight

    8 thereafter -- I have been concerned to provide an

    9 advance list of as many witnesses as we can, making it

    10 clear that although, of course, the order of witnesses

    11 may have to be subject to change and the longer the

    12 list, the more likely it is that changes will be

    13 necessary, we have either served or are in the position

    14 of serving a list of the next 40 witnesses, taking it

    15 to 60, and that has been in hand since last week.

    16 JUDGE MAY: Yes, Judge Bennouna?

    17 JUDGE BENNOUNA: (Interpretation) Thank you,

    18 Mr. President.

    19 Mr. Nice, what we are, however, expecting

    20 from you is something a bit more specific before the

    21 Trial Chamber can make any decision on this very

    22 relevant matter. I have in mind the timing, the

    23 restriction in time for the duration of the trial. You

    24 tell us that it is more subtle, that we are talking

    25 about general elements, about a climate or an

  127. 1 atmosphere which is not easy to prove, that it is

    2 therefore difficult to apprehend the number of

    3 witnesses, but I think that you should very quickly

    4 inform the Chamber of your strategy, of the witnesses

    5 you intend to call on behalf of the Prosecution, even

    6 if you have to tell us as well that you have reserved

    7 other witnesses. If need be, you know that the Chamber

    8 may itself take the initiative, if it feels necessary,

    9 to confirm or to seek more specific evidence here and

    10 there.

    11 I think that you have to tell the Chamber

    12 very shortly so that we maintain the trial within a

    13 reasonable time frame. There is, of course, no question of the

    14 guillotine of time being imposed on you. No. The

    15 matter is a matter of a reasonable time period for a

    16 reasonable trial, and this is in the superior interests

    17 of justice. This is what we are expecting from you.

    18 MR. NICE: All of which I entirely accept,

    19 and I will respond. Not perhaps today, because I think

    20 it is only fair that these issues we should discuss as

    21 a team in order to give you our best collective

    22 estimate of how long we would want, with what period of

    23 time we, as it were, could do.

    24 Can I simply mention this as well? If it

    25 emerges that there is no scope ...

  128. 1 (Trial Chamber confers)

    2 JUDGE MAY: Yes, Mr. Nice. I'm sorry.

    3 MR. NICE: No, not at all. If it emerges

    4 that there is no scope for agreement, then there is at

    5 least, I suppose, technically, only one other way of

    6 shortening the case -- if there is no scope for

    7 agreement of substantial quantities of material,

    8 exhibits and so on, which one would very much hope

    9 there will be, and if each witness would otherwise have

    10 to be taken in full on both sides, but if the balance

    11 of the interests of justice would favour more witnesses

    12 but, nevertheless, a more compact time frame, the only

    13 other reform, as it were, of your procedures that I

    14 have been able to consider as a way of meeting the

    15 problem would be for witnesses' statements to stand as

    16 evidence in chief, subject to such topping up of

    17 questions as might be appropriate, and they then to be

    18 subject to cross-examination, a procedure with which I

    19 suspect Your Honours are well-familiar and probably

    20 Judge Robinson.

    21 I recognise it is not what's desired here,

    22 but if there comes a point where there is a real

    23 conflict between interests, that's all that may be

    24 available as a method of getting more evidence before

    25 you in a shorter period of time.

  129. 1 This is a large case, it's a very important

    2 case, and it does cover a large territory, and

    3 therefore, it is bound to take longer -- it is bound to

    4 take a time. I very much hope that I can deal with

    5 matters expeditiously. I believe I normally have done

    6 in the past and can do in this case. I am not a long

    7 leader of witnesses in direct or in chief, I hope. So

    8 I can deal with matters as swiftly as is possible. But

    9 it remains a big case with big issues which must be

    10 properly ventilated.

    11 JUDGE MAY: That clearly is right, and we

    12 have that in mind, but when we note that 370

    13 statements, I think it is, have been disclosed, it is

    14 obviously a matter which we must regard with concern.

    15 It is obviously too early to make any ruling

    16 at the moment, but once the case is under way, we will

    17 expect a look at the witnesses -- we now have summaries

    18 of them -- and that it may be something that we can do

    19 with you with a view to making rulings.

    20 We have a duty to make sure the trial is

    21 fair, fair to both sides, but also expeditious. It is

    22 one which we will carry out.

    23 Having said that, I am going to ask the

    24 Defence if there is anything they want to add on this

    25 particular issue.

  130. 1 For instance, Mr. Smith, could you give us

    2 any idea at this stage how long the Defence might be?

    3 MR. SMITH: In the presentation of our case

    4 when the Prosecution is finished, Your Honour, or in --

    5 JUDGE MAY: Yes, your case.

    6 MR. SMITH: -- our anticipation in

    7 cross-examination?

    8 JUDGE MAY: Your case.

    9 MR. SMITH: Your Honour, it is very

    10 difficult. We have not seen the case that the

    11 Prosecution has put on at this point. I think we do

    12 not intend to take any more -- we certainly do not plan

    13 the 370-some witnesses for which there were multiple

    14 statements for individual witnesses. We plan a much

    15 smaller case than 370 witnesses. How long it will take

    16 us to put on, frankly, I have been focusing on the

    17 Prosecution's case. I will be glad to try to make an

    18 estimate in due course. But I am not prepared to do

    19 that at this point. But it is much, much smaller than

    20 the Prosecution's proposed case, as disclosed by their

    21 documents and their exhibits, two thousand and some

    22 exhibits.

    23 JUDGE MAY: If the Prosecution have the time

    24 which they mention at the moment, that would be 100

    25 sitting days, something of that order.

  131. 1 Yes. Is there anything that you want to

    2 mention before we go into closed session?

    3 MR. SMITH: Well, yes, Your Honour. You

    4 mentioned, dealing with matters in open session, it

    5 could be taken up in open session, and there is one

    6 issue and it, in fact, relates to the question of the

    7 length of trial and the difficulty of the case which I

    8 am prepared to raise and argue now in open session, and

    9 it is an issue that relates to the opening statement by

    10 the Prosecution.

    11 As you have indicated, this is a case with

    12 mountains of material but, as our briefs indicate, we

    13 believe very little real evidence; and having now heard

    14 the opening statement, I would propose to make a motion

    15 to dismiss in two regards: First, with regard to the

    16 persecution count and, second, with regard to the

    17 predicate offences. It will not take me long to

    18 outline orally, as Your Honour has requested, the

    19 grounds for that motion to dismiss, but I believe it

    20 can be done in open session and probably be done

    21 between now and 4.15, if you would like to hear that

    22 matter now and take it under advisement.

    23 JUDGE MAY: Yes.

    24 MR. SMITH: Let me begin then by telling you

    25 about the motion as to persecution.

  132. 1 The Defence, the Kordic Defence, would move

    2 that as to Count 1, the Prosecution has not, in their

    3 statement or in the materials that they have read

    4 during their statement, specified persecutory acts,

    5 specific persecutory acts, before the date of 10 May,

    6 1992 nor after the date of October 23rd, 1993, and yet

    7 their indictment in Count 1 runs from November of '91

    8 to March of 1994, and it is our view that the

    9 indictment should be narrowed as to persecution to the

    10 time period between 10 May, 1992 and October 23, 1993,

    11 within which there are even arguable specific

    12 persecutory acts as required under 5(H).

    13 The second part of the motion as to section

    14 5(H) is that there are essentially no persecutory acts

    15 specified outside the Lasva Valley. There are

    16 activities outside the Lasva Valley, meetings, things

    17 of that sort, but specific persecutory acts required by

    18 section 5(H), there are simply none in Herzegovina, and

    19 we would urge the Court to limit the case to the

    20 Central Bosnia-Lasva Valley area because, taken at its

    21 best as presented by my able colleague, there simply

    22 are no persecutory acts outside the time period I have

    23 mentioned and outside Central Bosnia and the Lasva

    24 Valley area.

    25 Furthermore, during the early period that I

  133. 1 have mentioned, before 10 May, 1992, there is no formal

    2 government policy or plan of discrimination. There is

    3 a disjunct in the case as articulated by the

    4 Prosecution. They speak a great deal about and point

    5 to this and that involving an effort to have a

    6 Bosnian-Croatian institution separate from the State of

    7 Bosnia and incorporated with Croatia before the

    8 referendum, but if you will notice, after the

    9 referendum, that whole theme drops away, just as any

    10 mention of Mr. Boban, the president, drops away at a

    11 certain point in their presentation. In short, there

    12 is a disjunct. Even taking their case as stated, if

    13 there were such a plan, there is no evidence of it

    14 after the date of the referendum, which is before the

    15 date of 10 May, 1992, on which I propose that the

    16 Tribunal should dismiss the persecution allegation.

    17 Moving then to the predicate offences, and

    18 that is Counts 3 through 45, which are, as paragraph 37

    19 of the amended complaint indicates and as my learned

    20 colleague has indicated, are really the heart and soul,

    21 the specific acts, the specific persecutory acts

    22 alleged and on which their persecution count is

    23 predicated, those predicate acts, in our judgment, even

    24 taking their case as stated, as if it were true --

    25 which we do not -- taking it on that basis, we believe

  134. 1 that they have not pointed to direct evidence of the

    2 commission, direct commission, by our client,

    3 Mr. Kordic, of those acts from Counts 3 through 45.

    4 Secondly, as to indirect liability, as an

    5 aider and abettor or in other fashion, under section

    6 7(1), Your Honour, we would point out that under

    7 section 7(1), there has to be proof beyond a reasonable

    8 doubt of assistance by Mr. Kordic in a specific crime

    9 that contributed directly and substantially to the

    10 commission of that crime and there must be the

    11 requisite specific and deliberate intent so to assist.

    12 JUDGE MAY: This is for aiding and abetting.

    13 MR. SMITH: Yes, Your Honour. In other

    14 words, I have made an argument that there is simply no

    15 evidence of direct commission. There is evidence that

    16 can be said to relate to, be relevant to aiding and

    17 abetting, but my argument is that there is not

    18 sufficient evidence, not nearly sufficient evidence,

    19 given the circumstantial nature of the case, to convict

    20 for aiding and abetting or any other form of indirect

    21 liability under section 7(1), and I would point you to

    22 paragraphs 22 through 25 of our volume 1 pre-trial

    23 brief where we lay out, in arguments following that,

    24 why we believe the Prosecutor's case, as stated in

    25 their papers and as stated by my learned colleague

  135. 1 today, simply does not meet the relevant test of

    2 specific linkage in terms of assistance directly and

    3 substantially contributing to the commission of a

    4 specific predicate offence.

    5 JUDGE MAY: Mr. Smith, that argument really

    6 goes to the heart of this case, doesn't it? Because

    7 what the Prosecution are inviting us to do is to draw

    8 an inference from circumstantial evidence and say that

    9 the inference to be drawn is that the accused were

    10 involved and participated in these offences. Now, at

    11 this stage, of course, it can be no more than an

    12 invitation. It is something which we have to consider

    13 and we will have to consider on the evidence. But to

    14 dismiss the case without hearing anything would be to

    15 take a fairly drastic line of action, wouldn't it?

    16 MR. SMITH: It would indeed, Your Honour, be

    17 to take a drastic line of action, and the Defence

    18 understands that. We urge it because we believe the

    19 weakness of the circumstantial case put on by the

    20 Prosecutor warrants it. We have explained why we

    21 believe that is true. I would urge Your Honours that

    22 in a situation in which there are alternative theories

    23 that explain an accused's conduct as innocent and

    24 lawful, on the one hand, versus illegal on the other,

    25 or where there are conflicting but plausible theories,

  136. 1 and we have laid out a theory based on the documents

    2 that the Prosecutor has advanced in our pre-trial brief

    3 and invited the Court to consider whether there is any

    4 way, even if the case is proved, as the Prosecutor

    5 proposes to prove it, that there can be a finding

    6 beyond a reasonable doubt that the necessary assistance

    7 in the specific crime contributed directly and

    8 substantially to that crime with the requisite,

    9 specific, and deliberate intent to do so, and I am

    10 simply urging Your Honours to consider this matter at

    11 the outset, rule upon it. We believe there is simply

    12 not sufficient specificity, and that is why we raise

    13 it.

    14 Thank you, Your Honour.

    15 JUDGE BENNOUNA: (Interpretation) Thank you,

    16 Mr. Smith.

    17 I was wondering, did you not forget part of

    18 Article 7(1) because you mentioned aiding and abetting

    19 and such like but you failed to mention the first part

    20 of 7(1) which mentions planning, instigation, ordering,

    21 and that is what we call "command responsibility."

    22 Do you mean that there can be no such issue

    23 at stake here, no issue of command responsibility, in

    24 what we have heard to date?

    25 MR. SMITH: Your Honour, I would say two

  137. 1 things in response: The first is that we believe and

    2 we urge in our briefs that planning, instigating, as

    3 opposed to direct commission under section 7(1), have

    4 essentially the same characteristics in terms of what

    5 must be proved as aiding and abetting because they are

    6 forms of indirect liability, and therefore, I thought I

    7 had addressed them. I addressed them implicitly by

    8 just dealing with aiding and abetting. I apologise if,

    9 by not mentioning the other names, I have not made

    10 myself clear to the Court.

    11 The second thing I would say, however, is

    12 that it is our strong view, and we have argued it, that

    13 section 7(1) is not a command responsibility section.

    14 That theory, if at all, and we have argued that the

    15 language doesn't accomplish it, and you have overruled

    16 us, but that argument is a section 7(3) argument, in

    17 our judgment, and a clear distinction must be made

    18 between command responsibility under section 7(3) where

    19 there is a superior-subordinate relationship. We do

    20 not believe that there is a superior-subordinate

    21 relationship shown in this case. But that theory is a

    22 section 7(3) theory and it is not a basis for imposing

    23 liability under section 7(1). Indirectly there one

    24 must deal with the law relating to the aiding and

    25 abetting, the assistance in the commission of a crime,

  138. 1 irrespective of the command responsibility issue.

    2 So I have been trying to draw a bright line

    3 between command responsibility with a

    4 superior-subordinate relationship, which we believe is

    5 not shown under section 7(3), and the showing of

    6 assistance in a specific crime where there has to be

    7 direct and substantial assistance to the commission of

    8 that crime, specific crime, and the requisite,

    9 specific, and deliberate intent to do so. We are

    10 urging the dismissal of the indictment on the grounds

    11 that, while there is a mountain of information that is

    12 being arrayed on the question of this general theory of

    13 persecution, there is simply, when you look carefully

    14 at it, no specific evidence linking, directly or

    15 indirectly, Mr. Kordic to the specific allegations

    16 under 7(1), and there is no evidence of a

    17 superior-subordinate hierarchy and relationship that

    18 would hold him accountable to the standards applicable

    19 to, in effect, a military officer, and we have made

    20 those arguments in our briefs, Your Honour, at some

    21 length.

    22 JUDGE MAY: Yes, Judge Robinson?

    23 JUDGE ROBINSON: Mr. Smith, it seems to me

    24 that you have implicitly agreed with the Presiding

    25 Judge that your motion is a bit premature. I

  139. 1 understood you to be saying, and I put it the way it is

    2 expressed in some jurisdictions, that where you have

    3 two inferences that can be drawn, one favourable to the

    4 accused and the other the other way, then you are

    5 obliged to draw the inference favouring the accused for

    6 the simple reason that you would not have proof beyond

    7 a reasonable doubt, but you cannot ask us to do that

    8 now because we haven't heard the evidence yet, and this

    9 is why I say I think you are implicitly agreeing that

    10 your motion is premature.

    11 MR. SMITH: I would respond to Your Honour by

    12 saying that we were arguing that the -- if you will

    13 just forgive me for a moment -- the argument is not

    14 premature. You can rule now on the simple question of

    15 whether, on the basis of the existing evidence, they

    16 have met, even, in effect, a prima facie threshold, and

    17 if there is not sufficient evidence, it seems to me you

    18 can dismiss, and the argument on the alternative

    19 theories I am suggesting is based on the existing

    20 evidence they have already adduced when, as the trial

    21 goes forward, we will, of course, ourselves adduce

    22 evidence on the alternative theories, and it may be

    23 that you will conclude that it is premature on the

    24 grounds that there is sufficient evidence at this time

    25 for going forward. We are simply arguing and urging

  140. 1 you to consider whether there is sufficient evidence

    2 even to proceed on the predicate offence counts.

    3 I hope I have made myself clear and answered

    4 your question, Your Honour.

    5 JUDGE MAY: There is a final point, and that

    6 is whether we have any power to deal with this motion

    7 at the moment. There is a power in Rule 98 bis to

    8 enter motion for judgment and acquittal. That is after

    9 the close of the case for the Prosecution when the

    10 Trial Chamber finds that the evidence is insufficient

    11 to sustain a conviction.

    12 Now, I don't know of any other Rule which

    13 would allow us, even if we were minded to at this

    14 stage, to dismiss the case, to dismiss the indictment,

    15 after the Prosecution has opened the case but before

    16 its called its evidence.

    17 MR. SMITH: Your Honour, I guess I would rely

    18 upon your general power to issue orders and on the

    19 practice in jurisdictions, all jurisdictions I'm

    20 familiar with, to allow a testing of the Prosecutor's

    21 case at the outset.

    22 In any case, I might say that if there are

    23 concerns about whether my second motion on the

    24 predicate offences is proper at this time or whether

    25 the facts are sufficient to go forward, I would still

  141. 1 urge Your Honours to consider the motion on persecution

    2 and whether there are persecutory acts either outside

    3 Central Bosnia or outside the time periods running from

    4 10 May to October 23rd, 1993 -- 10 May, '92.

    5 (Trial Chamber deliberates)

    6 JUDGE MAY: We shall dismiss these motions.

    7 All the matters which counsel raises are matters which

    8 will be dealt with or not in evidence. If the evidence

    9 does not support the counts, as the Prosecution

    10 anticipate it will, then, of course, those counts will

    11 fall. But to rule at this stage would be premature,

    12 and as I just mentioned, I doubt we have the power in

    13 this Tribunal to do it.

    14 We will adjourn now. We will sit again at

    15 9.45 tomorrow morning. I think it might be sensible to

    16 start in closed session and deal with all the matters

    17 that we can in closed session about the witnesses, and

    18 as soon as possible, if it is, we will move into open

    19 session. We will start in closed.

    20 --- Whereupon proceedings adjourned at

    21 4.15 p.m., to be reconvened on Tuesday,

    22 the 13th day of April, 1999, at

    23 9.45 a.m.