1 Thursday, 17 June 1999
2 (Open session)
3 (The accused entered court)
4 --- Upon commencing at 10:50 a.m.
5 THE REGISTRAR: Good morning, Your Honours.
6 This is case number IT-95-14/2-T, the Prosecutor versus
7 Dario Kordic and Mario Cerkez.
8 JUDGE MAY: Mr. Nice, if I could address
10 We are starting late because there has been a
11 problem with the Livenote transcription. As I
12 understand the position, we can go on, albeit that we
13 won't have the transcript on our --
14 JUDGE BENNOUNA: It is on.
15 JUDGE MAY: As I speak, I see it. Very
16 well. All is well.
17 We were going to deal with procedures while
18 Mr. Smith is here. We had a message passed to us.
19 There was some difficulty about a witness.
20 MR. NICE: Can I explain the position?
21 Before I do explain the position, I
22 respectfully ask if there's any possibility, given the
23 late start, of sitting any later this afternoon, should
24 the requirements of the case justify it, and make this
25 observation about the position of the witness.
1 The Victims and Witnesses Unit, relying on
2 the first plan of yesterday, namely, that it should be
3 witness first and procedure in the afternoon, fixed for
4 the witness a medical appointment as late in the day as
5 they could. That would mean his leaving here at half
6 past 3.00, and the appointment is in respect of a
7 chronic pain condition that he has, which has been
8 exacerbated since he's been here. He's happy to give
9 evidence, but he's anxious that he should get to the
10 doctor's this afternoon.
11 It had occurred to me as possible that in
12 those circumstances, it would be preferable to take the
13 witness now, with the hope of concluding him before the
14 time that he has to leave for his medical appointment,
15 and to follow his evidence by the argument on
17 We've all been served this morning with a
18 22-page skeleton from the Defence. I've had an
19 opportunity to read it and we're ready to go. I think
20 the Chamber has now had an opportunity of reading it as
22 We've been able to serve a one-sided answer
23 to Judge Robinson's question yesterday with a short
24 attachment of extract from a textbook, which I hope is
25 helpful. So the issues may, in fact, have been
1 somewhat narrowed, if the Chamber has had an
2 opportunity to and has read the printed material.
3 We're entirely in the Chamber's hands, but it
4 just might be that if the witness was taken first and
5 concluded, that then the legal argument to follow could
6 conclude this afternoon, especially if the Chamber were
7 able to sit a little after its normal hour, and then
8 the last witness, who has been here since before last
9 weekend, could be disposed of tomorrow. I'm very
10 unhappy about the prospect of a witness being sent
11 back, he having been here for ten days.
12 JUDGE MAY: Yes, Mr. Stein.
13 MR. STEIN: Mr. Smith wouldn't ask this for
14 himself, but I'm going to. He's suffering from, (a),
15 jet lag, and fatigue from the work that he produced
16 last night, and I ask that you consider getting on with
17 the argument on procedure forthwith, particularly if
18 the witness who is about to testify has pain issues.
19 Maybe it would be unfair to actually ask him to
21 For those reasons, we would like to get the
22 procedural issues behind us. We've heard a lot from
23 the Prosecutor. We have a lot to say in response, as
24 you can tell, and it's a critically-important issue.
25 (Trial Chamber deliberates)
1 JUDGE MAY: We'll hear the evidence first.
2 We recognise the position Mr. Smith is in.
3 Perhaps he would like to go and lie down. We'll try
4 and hear the argument at 3.00 and no later.
5 We are prepared, if necessary, to sit a bit
6 later tonight, and we'll sit earlier tomorrow morning,
7 if need be, in order to finish these matters.
8 We would be grateful if both sides would
9 cooperate and try and finish the witness by 3.00 and no
12 MR. STEIN: Mr. Smith will accept your
13 invitation and, with your leave, will leave.
14 MR. NICE: Mr. Dixon, Mr. Lopez-Terres and
15 Ms. Somers, who were here for the interesting
16 procedural matter, will leave and return this
18 MR. SCOTT: May it please the Court, there is
19 an application for protective measures concerning the
20 next witness. I suggest that we go into private
21 session for the purposes of stating the application,
22 and it may be that if the protective measures are
23 granted, then we can take care of the sensitive
24 material at the beginning of the witness's testimony
25 also in private session, and I'm saying specifically
1 private, not closed session, and then proceed publicly
2 with the remainder of the proceeding.
3 JUDGE MAY: Very well.
4 (Private session)
13 page 4073 redacted private session
12 page 4074 redacted private session
13 page 4075 redacted private session
12 page 4076 redacted private session
13 page 4077 redacted - private session
17 (Open session)
18 MR. SCOTT:
19 Q. Witness H, in the first six months of 1993,
20 and specifically referring you to January of 1993, did
21 you find yourself living in Central Bosnia?
22 A. Yes.
23 Q. Is it fair to say that -- would it be your
24 testimony today, Witness H, that by January of 1993, it
25 appeared increasingly likely to you that the Bosnian
1 Croats would begin an armed conflict with the Muslims
2 in Central Bosnia?
3 A. Yes.
4 Q. Is it correct in January of that year, 1993,
5 the Busovaca HVO shelled the Muslim villages of Loncari
6 and Merdani with mortars?
7 A. It is.
8 Q. Is it your testimony that after this
9 shelling, a significant number of Muslims moved out of
10 the areas of Loncari and Merdani and went to the area
11 of Zenica?
12 A. It is.
13 Q. After perhaps they stayed there for some few
14 weeks or months, would it be your testimony that many
15 of these Muslims then moved back into these areas of
16 Loncari and Merdani?
17 A. Yes.
18 Q. After these Muslims or, if you prefer,
19 Bosniaks had moved back into the area, was there a
20 second or a further HVO attack in April, 1993?
21 A. Yes, there was.
22 Q. Now, did you find yourself, on the 16th of
23 April, 1993, in a house in the village of Loncari?
24 A. Yes, I was.
25 MR. SCOTT: I am going to ask the usher to
1 please show the witness and to put on the ELMO what has
2 been previously marked and used, which is Prosecution
3 Exhibit 2612,3, a map.
4 Q. Witness H, if you could refer to the map
5 that's been put on the ELMO to your right, I will tell
6 both you and the courtroom that the village of Loncari
7 itself is not specifically named on this exhibit
8 2612,3. But can you look at the map, please, orient
9 yourself, and point out, with either your finger or the
10 pointer there that I see in front of you, the
11 approximate location of the village of Loncari in
12 relationship to -- if you can locate for yourself Vitez
13 and Busovaca and then point, please, to the approximate
14 location of Loncari.
15 You'll have to do it, Witness H, on the
16 colour map in front of you on the machine.
17 MR. SCOTT: Mr. Usher, I think you're going
18 to have to help him.
19 Q. So you're pointing, for the record, you're
20 pointing to an area that would be a bit to the north of
21 Busovaca and a bit to the east of Vitez; is that
23 A. Yes, it is.
24 Q. Approximately in terms of driving distance,
25 given the roads in the area, what is the approximate
1 driving distance from Loncari to Vitez?
2 A. Seven kilometres.
3 Q. What is the approximate driving distance from
4 Loncari to Busovaca?
5 A. Six. Six kilometres.
6 Q. All right. Very well. Is it your testimony,
7 or would it be your testimony this morning, Witness H,
8 that on the morning of the 16th of April, 1993, you
9 awoke and got out of bed sometime between approximately
10 5.30 and 5.00 in the morning?
11 A. I think it was half past 4.00, or maybe 5.00.
12 Q. And you are a Muslim by -- well, you're a
13 Bosniak by ethnicity, and you practice the Islamic
14 faith; is that correct?
15 A. Yes, it is. Correct.
16 Q. When you got up that morning, did you, in
17 fact, perform your morning prayers?
18 A. Yes, I did.
19 Q. Would it be your testimony that following
20 that time, you asked or told your wife to turn on the
21 radio to listen to the 5.00 news?
22 A. Yes, I did that.
23 Q. Can you tell the Court, please, when you
24 turned on the radio on the morning of the 16th of
25 April, 1993, did you hear anything or anyone at that
1 time that touched upon an attack or related to an
2 attack that came on the village later that day?
3 A. I heard Mr. Kordic ordering all HVO units to
4 attack all BH army positions.
5 JUDGE MAY: Mr. Naumovski?
6 MR. NAUMOVSKI: (Interpretation) I only wanted
7 to stop leading questions, when this matter is at
9 JUDGE MAY: Well --
10 MR. SCOTT: I think we just did, Your
12 THE INTERPRETER: Microphone for the
13 Prosecution, please.
14 MR. SCOTT:
15 Q. Could you repeat, in light of the objection,
16 what is that you heard -- you identified Mr. Kordic on
17 the radio, on Radio Busovaca?
18 JUDGE MAY: There's no need to repeat the
20 MR. SCOTT: I wasn't sure, Your Honour,
21 because I had a hard time hearing it myself. I'm
22 sorry. If the Court heard it, I'll move on.
23 Q. Had you known Mr. Kordic, or who he was, or
24 who you understood him to be, prior to the 16th of
25 April, 1993?
1 A. Yes, I did know him.
2 Q. What did you know of his role or position in
3 Central Bosnia?
4 A. His position when I knew him was the head of
5 the peoples' defence in Busovaca. He was sending
6 draftees to serve with the former JNA.
7 Q. What relationship, if any, did you understand
8 that Mr. Kordic had with an organisation called the
9 Croatian Defence Council, or HVO?
10 A. I wouldn't be able to tell you that.
11 Q. What did you see, what role did you
12 understand that Mr. Kordic played in the course of the
13 conflict between the Muslims and Croats in the
14 approximate time of 1993, based on what you were aware
15 of and saw?
16 A. I couldn't tell you that either.
17 Q. Did you ever see Mr. Kordic do anything, make
18 any presentation, take any role in connection with a
19 military formation, an HVO military formation, that you
20 saw in Central Bosnia?
21 A. No, I did not see him. I didn't really
22 follow that all that closely, but yes, my son, Salih,
23 was serving in the army, the former army, in Bare. The
24 gentlemen called all the parents who had their children
25 in the former army, because the war had broken out
1 between Serbs and Croats in Pakrac, and they were asked
2 to come to Busovaca, so that some 20 or 30 of us did go
3 there, and we were told -- he told us that we had to
4 prepare, get ready the documents, our papers, so as to
5 get them out of the former army, not to have their
6 service extended, so that we -- they should come home
7 and then turn over the papers and then enrol at the
8 faculty in Zenica.
9 To Mr. Ibrahim Hodzic, naturally, in
10 co-operation with Mr. Kordic, I gave Ibrahim these
11 papers, and they did that, so that they got our
12 children out of the former JNA.
13 Q. Was it because of the dealings that you've
14 related to us in the last couple of minutes that you
15 were able to recognise Mr. Kordic's voice on the radio
16 on the morning of 16 April?
17 A. Naturally, because he was a media figure.
18 Q. How do you mean that? In what sense was
19 Mr. Kordic at that time a media figure?
20 A. Well, he issued all those orders that had to
21 be issued.
22 Q. What kind of orders?
23 A. The gentleman knows that. I don't.
24 Q. You had seen -- well, let's move on.
25 Witness H, is it fair to say you had no knowledge,
1 personal knowledge or dealings with Mario Cerkez?
2 A. I don't. I don't know Cerkez.
3 Q. Now, is it your testimony today, Witness H,
4 that following hearing Mr. Kordic on the radio, that
5 you and your wife stayed in this house -- excuse me,
6 your wife stayed in the house, and you and your brother
7 and several other Bosniak men went and hid in a small
8 woods about 200 metres from the house?
9 A. We went to a wood behind the house and hid
10 there. There was myself, my Salih, Kermo Sulejman,
11 Fuad Kermo, and Alaga Kermo.
12 Q. All right.
13 A. And a drizzle began, so that we came back
14 around 6.00, went back to the house, and we moved to
15 different parts of the house. I was watching from my
16 room to see if they would come from Kaonik, and Fuad
17 Kermo and his brother Alaga, they were watching on the
18 other side to see if anybody would come from Jelinak.
19 I told my wife, "Will you get me some water?
20 I'm thirsty." And my wife went into the bathroom,
21 looked out of the window, and saw three HVO men
22 carrying helmets, carrying their rifles and helmets on
23 them. They entered the house and asked me, "Where's
24 your son? Where's your son?"
25 Q. Excuse me for a moment, Witness H. In
1 response to your request for protective measures, let
2 me caution you not to identify particular individuals
3 unless I ask you for specific identification, in light
4 of the [obscured by witness response] in private
6 A. I see, yes, I understand. I understand.
7 MR. SCOTT: Your Honour, I don't want to
8 delay the proceedings now, but we may move to correct
9 or strike certain aspects of the record in light of the
10 last few minutes of testimony.
11 Q. You said your wife alerted you that there
12 were three HVO soldiers coming toward the house. Did
13 they at that time, then, come into the house?
14 A. Around 8.00 in the morning.
15 Q. Now, did you learn about this time that in
16 addition to what you've told us so far, was there a
17 shelling, was there some mortar fire or some type of
18 artillery fire that was also taking place in the
19 vicinity of Loncari and some of the other Muslim
20 villages in the area on the 16th of April, 1993?
21 A. Yes.
22 Q. Can you tell the Court, please, to your
23 knowledge, was the village of Loncari defended on the
24 morning or the day of 16th of April, 1993, against the
25 HVO attack?
1 A. No.
2 Q. Were there any components or elements of the
3 army of Bosnia-Herzegovina in or about the village of
4 Loncari on the morning of 16 April?
5 A. No.
6 Q. When the HVO soldiers entered your house, did
7 you try to tell them that your son was not in the
9 A. Yes.
10 Q. And is -- but is it the case that in fact,
11 however, HVO soldiers detected your son in the house
12 and asked him to come out of hiding?
13 A. First one of those soldiers entered, when I
14 said that he was not there, he proceeded to the
15 kitchen. There was a niche and a larder and he was
16 hiding in the larder, and he saw his feet sticking over
17 the trash holder so that one HVO soldier entered and
18 another one, and they talked about something, I
19 couldn't hear what about, and then another one came in
20 and took him out. He was so scared that he was all
21 white in the face. I thought his heart would burst.
22 Q. Is it your testimony, then, that following
23 that moment, the HVO took you and your son and the
24 neighbour that was also -- the person who was also in
25 the house at the time to the neighbour's house, where
1 the HVO also collected the neighbour's son? Is that
3 A. Yes, that is correct, 1.000 per cent.
4 Q. The four of you were then taken where? You,
5 your son, your neighbour, and your neighbour's son?
6 A. We were taken down below the village where a
7 mini bus was waiting, and when they brought us down
8 there, I saw some other people from our village who
9 were in the minivan, so we were about 21. The driver
10 of the mini bus was Mr. Mirko Plavcic, son of Jure,
11 from Jelinak.
12 Q. How many other HVO soldiers, apart from the
13 driver of the mini bus, did you see in or around the
14 bus at that time?
15 A. There were three or four who were escorting
16 us to the camp, and there was a larger group around who
17 were walking around in the fields.
18 Q. And what -- is it true then, would it be your
19 testimony this morning, that following all of you being
20 loaded, the 21 of you being loaded on the bus, that you
21 were taken to a place called Kaonik camp?
22 A. Yes.
23 Q. Among these HVO soldiers, is it your
24 testimony, Witness H, that one of them, Ivica
25 Andrijasevic, from Jelinak, appeared to you, based upon
1 what you observed, to be the commander of this
2 particular group of HVO soldiers?
3 A. Yes. Yes, he did.
4 Q. Did you also recognise as one of the HVO
5 soldiers that morning Ante Andrijasevic?
6 A. Yes. This was Ivica's brother.
7 Q. In fact, did you see the father of these two
8 men, Stipo Andrijasevic, also in Loncari on the 16th of
9 April, 1993?
10 A. I did not see Stipo then, but I saw him later
11 on in the camp, because he was -- he kept the keys to
12 the cells.
13 Q. Was he a guard at the camp?
14 A. Yes.
15 Q. Is it your testimony this morning, sir, that
16 the 21 of you were there and taken to Kaonik camp,
17 ordered to get off the bus, you were lined up, your
18 personal details in terms of names, birth dates, et
19 cetera, were taken from you at that time?
20 A. Yes.
21 Q. Was the person that took this information
22 from you Ljubo Vukadinovic?
23 A. Yes.
24 Q. How was he dressed at that time, if you
1 A. He was in a uniform.
2 Q. Was this a camouflage uniform with HVO
4 A. Yes.
5 Q. Once you gave this information, were the
6 group of you lined up, and did anything else happen to
7 you at that time?
8 A. Yes. They lined us up, and whoever had money
9 in their pockets or cigarettes or gold watches, all
10 this was taken away from us. Good shoes, all those
11 things were taken.
12 Q. Let me ask -- well, we've covered this
13 already, excuse me.
14 Once your name and information had been taken
15 and the HVO had taken your valuables, were you then
16 placed in a hangar, what you've described as a hangar?
17 A. Yes. Yes.
18 Q. Can you tell the court, when you got to
19 Kaonik on that day, approximately how many other
20 prisoners or detainees did you find there?
21 A. There were about 150 to 160 of them. I
22 wouldn't know the exact number, but approximately
23 there. There were people from Vitez there, from Novi
24 Travnik, from Donji Vakuf. They were captured in all
25 different places where they could get any Bosniaks,
1 including Tesanj.
2 Q. When you say it's in the interests of speed,
3 I passed over one thing, but let me go back
4 momentarily, please. Without identifying further your
5 son, can you confirm that he was not involved in any
6 sense in making any defence or acting in a military
7 fashion at Loncari on the 16th of April, 1993?
8 A. No, he wasn't.
9 Q. In terms of the people that you found at the
10 camp, you've identified them that there were Bosniaks
11 who had been brought to the camp, Kaonik, from all over
12 Central Bosnia?
13 A. Yes.
14 Q. What did you understand -- what was or had
15 been, up until the 16th of April, 1993, what was Kaonik
17 MR. SCOTT: Your Honour, maybe I can lead
18 here, if there's not objection.
19 Q. Was it a former JNA army barracks?
20 A. Yes.
21 Q. Can you relate to the Court any information
22 you might have about any events or dealings concerning
23 the Kaonik barracks that might have involved Dario
24 Kordic? Did you ever learn or see or hear of anything
25 involving Mr. Kordic in relationship to the JNA and the
1 camp at Kaonik?
2 A. No.
3 Q. The next morning, did you meet Mr. -- on the
4 17th of April, 1993, did you see Zlatko Aleksovski come
5 into the hangar where you were being kept with Ljubo
7 A. Yes.
8 Q. Mr. Aleksovski was wearing again a camouflage
9 uniform with HVO insignia; is that correct?
10 A. Yes.
11 Q. Did Mr. Aleksovski, at that time, ask for or
12 say that they needed 30 men for a job?
13 A. Thirty men, 30.
14 Q. Did it turn out, sir, that 30 Bosniaks were
15 selected, and of the 30 men, your son was picked as the
16 30th man?
17 A. Yes, he lined us all up and selected 29 men
18 and then Salih was left to the side, and then he also
19 pointed to him, and he said "you're coming along." So
20 he went along as the 30th.
21 Q. When you saw your son leaving the hangar, did
22 you have any chance to speak with him or give him any
23 wishes or goodbyes at that time?
24 A. No, I did not.
25 Q. Was Mr. Aleksovski present at the time that
1 these Bosniak men were taken out of the hangar and
2 loaded on a truck?
3 A. Yes.
4 Q. Is it your testimony this morning that these
5 30 prisoners were taken to dig trenches at Rovna, or
6 perhaps Kovacevac, in that area, in the area of Ravno?
7 A. Yes, yes.
8 Q. Among these 30 Bosniaks who were taken out to
9 dig trenches, was one of the other of the 30 your
10 neighbour's son that you've talked about earlier?
11 A. Yes, but not with my son. He was with
12 another group. Because the prisoners who came back had
13 told me that the neighbour's son was wounded in the
14 morning, at 10.00, and my son in the afternoon, at
16 Q. Is it correct, Witness H, that, in fact,
17 neither your son nor the neighbour's son came back to
18 the Kaonik camp, either that day, the 16th or 17th of
19 April, 1993, and at no time after that?
20 A. They never did.
21 JUDGE MAY: Mr. Scott, can you take this
22 extremely quickly, please.
23 Don't upset yourself.
24 Is there any dispute about this particular
25 incident? We can see, Mr. Scott, what's in the
1 summary. I think there's no need to go through it.
2 Are you all right, Witness H?
3 A. All right. I'm all right.
4 JUDGE MAY: If you would like to go on --
5 MR. SCOTT: Yes, Your Honour. Let me see if
6 I can look ahead through the outline, Your Honour.
7 Q. Well, let me just summarise, without going
8 through many of these paragraphs: Did it come to your
9 attention, to the best of your knowledge, that your son
10 had, in fact, survived that day, that he had been
11 wounded, apparently by a bullet grazing him in the back
12 of the head, but that you received various reports that
13 he had apparently been taken to hospital in either
14 Busovaca or Nova Bila. And that the reports you were
15 getting were that the wounding, although significant,
16 did not appear life-threatening at that time?
17 A. This is what I was told, that he was only
18 grazed by a bullet, that it grazed his head, and that I
19 shouldn't be concerned, that he was all right. About
20 six months ago I went to the International Red Cross,
21 and they confirmed that he had been brought to Busovaca
22 and bandaged, but they could not tell me where he was
23 taken from there.
24 Q. All right. I'll just say, so we don't have
25 to come back to this again, Your Honour, and I'm not
1 trying to lengthen it, in fact, I'm trying to conclude
2 it now as opposed to later. You have not seen from
3 your son at all ever, or heard from him at all since
4 the 17th of April, 1993; is that correct, sir?
5 A. Never.
6 Q. Now, moving on, on the -- is it your
7 testimony this morning that early on the morning of the
8 18th of April, three additional Bosniaks men Saban --
9 and for the record, Your Honour, I've jumped to
10 paragraph 64 -- Saban Osmancevic, Abdulah Osmancevic,
11 and Camil Osmancevic, were brought into the Kaonik
13 A. Yes.
14 Q. They explained, is it correct that they
15 explained to you that they had been hiding in Alija
16 Osmancevic's house and the HVO soldiers had found them
17 also and arrested them?
18 A. Yes. Yes.
19 Q. Now, either on that morning or the next day,
20 did Mr. Aleksovski come into the hangar, and with the a
21 police officer, and say something to the effect of
22 "Where are those three birds who arrived yesterday? "
23 A. Yes, he said "three little birds."
24 Q. And what did you observe, if anything, that
25 then happened concerning these three men?
1 A. Because Camil had been wounded in the right
2 foot, and Avdo and Saban had tried to bring him, to
3 carry him to the police vehicle, but Mr. Aleksovski
4 said "Let him alone. He can go on his own," and then
5 he somehow a made it there. He was -- they tied him
6 with a rope, and then put him in a car. Then they left
7 in this police car and from there on, all trace of them
8 is gone.
9 Q. Never heard or seen from again?
10 A. I never heard anything. In fact, there were
11 five of them, the three of them, my son, and my
12 neighbour's son. And I insist and I asked from the
13 gentlemen if they were killed, to tell me where their
14 bones are so that we can give them a proper burial. I
15 am sitting here, but my son is always before my eyes.
16 Q. Witness --
17 A. As long as I live, I will continue to search
18 for him.
19 Q. Witness H, you were kept, then, at Kaonik
20 camp from approximately the 16th of April to 16th of
21 May, 1993; is that correct?
22 A. That is correct.
23 Q. Would you characterise the conditions at the
24 Kaonik camp that you and the other prisoners found
25 yourself in as being bad and difficult conditions?
1 A. Bad. When we were brought there, we didn't
2 even have pallets but we had to lie directly on
3 concrete, which is also why I'm ailing now, and then
4 ten days later the Red Cross arrived and brought us two
5 blankets each.
6 I was not physically mistreated, but I was
7 mentally mistreated when they tell you, "Fuck your
8 balija mother," you know, and we did not have toilets,
9 we only had buckets. There were 160 of us and we are
10 Bosniak. We wash after every use of toilet. We
11 weren't allowed that. For 30 days, they didn't allow
12 us to bathe, to wash.
13 When I came out, I had a beard this long and
14 I was all filthy, and for me this was mental torture.
15 Q. Did you have any change of clothes or a bath
16 in the 30 days that you were confined?
17 A. No, not even in theory.
18 Q. Is it correct, Witness H, that there were
19 approximately -- of these 160 Bosniak prisoners, you
20 were kept in a concrete hangar which measured
21 approximately 60 metres long by 12 to 13 metres wide?
22 A. That is true, 1.000 per cent.
23 Q. Is it correct that you were generally allowed
24 two meals -- well, you were given food twice a day,
25 breakfast and lunch?
1 A. Yes, that is true. They would bring about 10
2 or 15 mess tins as used by the former army. They say,
3 "You have to finish it in ten minutes." There was
4 some rice and there was some stale bread. It was so
5 hard that my gums were hurting me for 10, 15 days after
6 I had left. However, the gods fortunately gave us
7 strength, and also I did not have much of an appetite.
8 Q. Is it correct that on average during your
9 time there, when you were given these portions of food,
10 that essentially each of the prisoners would receive
11 what amounted to one or two spoons of rice for the meal
12 and, as you say, some old bread?
13 A. Yes.
14 Q. Was there a doctor or any medical care
15 provided at the Kaonik camp?
16 A. Not in Kaonik, but they would take us to
17 Busovaca. And on one occasion I reported and wanted to
18 go, but Aleksovski said that we couldn't go because
19 there was some shooting coming from the Kula area, so I
20 decided against going.
21 MR. SCOTT: If I could ask the usher to show
22 the witness Exhibit 1867. It's been distributed
23 earlier. Put that on the ELMO, please.
24 Q. Can you show, on Exhibit 1867,
25 approximately -- in fact, have you, on a prior
1 occasion, marked a particular building on 1867 as the
2 building or hangar where you were detained during the
3 time you've testified about today?
4 A. Yes, I can. Here it is (indicating).
5 Q. Is it the building marked on the aerial
6 photograph as "E"?
7 A. Yes.
8 Q. All right. You understood, Witness H, that
9 this had been a JNA barracks? At least sometime prior
10 to April 16th of 1993, it had been a JNA barracks; is
11 that correct?
12 A. Yes, it was where the JNA had their guards.
13 It wasn't a big barracks. They had their guards there.
14 Q. Well, approximately how long prior to the
15 16th of April had the JNA vacated or abandoned these
16 barracks, this camp, approximately?
17 A. I couldn't give you the exact time. I really
18 wouldn't be able to say when exactly they left it.
19 Q. Well, can you tell us, please, was it some
20 days before April 16th, or some months, or an
21 approximation, if you can help us.
22 A. I think that it was several months. I don't
23 know whether it was in late '91 -- in fact, the end of
24 '92 or in '93. I wouldn't know exactly, because I
25 cannot keep all that in my memory. I lost some of that
2 Q. Were you present or did you hear, either from
3 your friends and associates or from media accounts, did
4 you hear any information or know any information about
5 the time when the JNA left --
6 JUDGE MAY: Well, you know, Mr. Scott, we've
7 been through this. I don't know what paragraph you're
8 referring to. I'm going to stop this. Let's move on.
9 MR. SCOTT: All right.
10 JUDGE MAY: Let's move on, if you want to, to
11 deal with the trench digging.
12 MR. SCOTT: Yes, Your Honour. That's where
13 we're going next. Just give me a moment, Your Honour.
14 Q. In reference to approximately the third day,
15 sir, that you were at Kaonik camp, were you and other
16 Bosniaks taken to dig trenches?
17 A. Yes, yes.
18 Q. Where were you taken at that time, if you
20 A. I was taken the first time to Gradina. We
21 were about 10 to 13 in the group who went there. It
22 was myself, Sidik Ribo, Sefka (phoen) Ribo. He just
23 died last year. Djulaga and Naim Osmancevic, and some
24 others. I cannot remember them now.
25 Q. All right. Can you identify for us or can
1 you confirm that the person who appeared to be the
2 commander of the HVO group that took you trench digging
3 at that time was this, again, Ivica Andrijasevic from
5 A. We were not taken there by Ivica. It was
6 somebody else who had a machine gun M-84. I had never
7 seen it before. He forced us to sing, "I do not like
8 Alija because you're a balija," and one Salko (phoen)
9 tried to sing it, and I told him, "Please don't sing,"
10 and so he came over to me and he said, "You old man,
11 you sing." And then I told him, "If I knew how to
12 sing, I wouldn't be here."
13 Q. All right. Just before we move on,
14 Witness H, when I said "took you to the trench-digging
15 location," let me rephrase my question.
16 Once you were at the trench digging, involved
17 in the trench digging where you were taken, were you
18 able to identify a person who appeared to be in charge
19 of the HVO soldiers who were overseeing the trench
21 A. I didn't know him. You know what? They were
22 very clever. They moved the HVO from Busovaca to Vitez
23 and vice versa, so that I couldn't know who they were.
24 Q. In connection with the trench digging on that
25 day, is it correct that you were not given any food or
2 A. That is true, 1.000 per cent. When we dug up
3 the trench at Gradina, we went back to the hangar.
4 We also were ordered to near Komar. And
5 Sefik Pezer was over 64, and he told him, "I cannot dig
6 any more, so kill me here." So then they abandoned
7 this trench digging and took us back to the hangar.
8 Q. All right. On that day, however, before we
9 leave that day, is it your testimony, sir, that one of
10 the HVO soldiers pointed to a house that was visible
11 from where you were trench digging, and did this turn
12 out to be the house that you had been in on the 16th of
13 April when you were captured or arrested?
14 A. Yes. When they took us --
15 Q. I'm sorry. Go ahead, please.
16 A. When they took us and we took a rest at a
17 place, and he said, "Whose house might be that one,"
18 and I said, "Mine." That same soldier broke the door
19 down --
20 Q. Did he make some --
21 A. -- and was looking for something but didn't
22 find anything. There was nothing to find. He said,
23 "Well, your house hasn't burned down," and I said,
24 "Well, it hasn't." "Well, I'll let it burn down too.
25 Since all the others have burned, let it burn too." So
1 it happened. Some 12 or 20 days later, my house also
2 burned down, and everything in it.
3 Q. Going sometime after this, on about the 26th
4 of April, 1993, did a guard come to you and take you to
5 Mr. Aleksovski's office at the Kaonik camp?
6 A. Yes.
7 MR. SCOTT: Your Honour, I'm going to further
8 abbreviate this, I just represent to the Court now.
9 But just to touch on this:
10 Q. Did you meet there another individual named
11 Zarko Petrovic in Mr. Aleksovski's office?
12 A. I did, yes. When I got there, first an HVO
13 soldier came and enquired about me, and I, yes, showed
14 that I was there. Somebody else said, "Why are you
15 looking for him?" He said, "They found two grenades,"
16 which isn't true. When I got to the office, Mr. Zlotko
17 (phoen) was coming out, and I found there Mr. Zarko,
18 whom I knew and who knew well my son, because they went
19 together to work in work brigades. And even I, as a
20 war veteran, joined in those work brigades.
21 So when I came in, I said, "Zarko, hello. Do
22 you know the whereabouts of my son?" He said, "Well,
23 you know, he's been wounded. But don't you worry.
24 He's in hospital in Bila." That's what he told me. He
25 said also, "I can't tell you anything more about that."
1 He gave me a bottle of Coca Cola and a box of
2 cigarettes, so I said, "Well, I am not a smoker." He
3 said, "Well, if you don't smoke, then take it to the
4 hangar and perhaps others will have a smoke."
5 Q. Did you understand, Witness H, that
6 Mr. Petrovic was a Bosnian Croat Intelligence or SIS
8 A. I think, going by his story, that he's still
9 in that same office.
10 Q. Now, continuing on, were you taken then to
11 another location to dig trenches on the following
12 morning? Again, we would be approximately now in late
13 April of 1993.
14 A. Yes. Zarko told me, "I can't help you, but I
15 can help you not to go digging trenches."
16 The next morning, Zare came. I don't know
17 him. I've only heard that he had come from Kotor
18 Varos, and he counted out of those men and he said,
19 "You go too," to me, and I said, "Well, Zarko has said
20 that I wouldn't go." Then again he swore about my
21 balija mother and said, "Oh, you are not going? That's
22 what you think," and forced me to join the line.
23 Q. Where were you taken, to what location, to
24 dig trenches that day? Was that at Podjele?
25 A. Yes.
1 Q. Can you tell the Court, on that particular
2 trench-digging occasion, was any food or water provided
3 to you that day?
4 A. We dug trenches from 8.00 in the morning
5 until 12.00 at night. Around 10.00, we were given --
6 we would be given tea and two biscuits, and that would
7 last us the whole day. And there we worked until
8 12.00. We believed they would take us back to the
9 hangar, but instead they pushed us all to a stable
10 which was half full of hay, and that is where we spent
11 the night.
12 I heard, and we all who were there heard,
13 that that gentleman, that Zare, had fired a mortar
14 shell against the village of Grablje, and we were all
15 scared stiff, because if those from the above returned
16 the fire, we could all burn down in that stable.
17 Q. Now, you were subsequently taken to dig
18 trenches at another location called Polom; is that
20 A. Yes, that is the truth, 1.000 per cent, 100
21 per cent.
22 Q. Is it correct, sir, that you were treated
23 somewhat better there, and I guess the food given to
24 you was better than had been true at Podjele; is that
1 A. It is correct, yes. We were given real
2 food. They gave us cigarettes and proper food. We
3 couldn't even manage it all. That is quite true.
4 Q. Were you taken on a fourth occasion to dig
5 trenches at a place called Bakije?
6 A. That is true.
7 MR. SCOTT: If I could ask the usher to show
8 the witness Exhibit 1794, please, and put that on the
10 A. I can't see it. Well, may I stand up to show
11 it, because I can't see it properly here.
12 JUDGE MAY: Yes, certainly.
13 MR. SCOTT: If you can look at the map, and
14 with attention to the face distortion -- can we ask the
15 technical, is it okay, can he move?
16 THE REGISTRAR: No, I don't think so.
17 MR. SCOTT: I think it would be better, with
18 my apologies, Witness H, it would be better if you
19 didn't move because of the identification issue.
20 Q. Can you please look over, as close as you
21 can, and with a pointer --
22 A. I see.
23 Q. -- point out the four --
24 A. Sure, sure I can.
25 MR. SCOTT: Again, Witness H, you'll have to
1 do it on the chart. In order for the Court and
2 everyone to see what you're doing, you'll have to point
3 it out on the chart on the ELMO. If the usher could
4 please give him some assistance.
5 Q. Could you just identify the four locations on
6 Exhibit 1794 which you, in fact, previously identified,
7 just to speed things along here? What are the
8 locations marked as -- for instance, what is the
9 location marked "A"?
10 A. Gradina.
11 THE INTERPRETER: Could the other witness's
12 microphone be switched on, please?
13 A. Gradina. Bakije is "B". Podjele is "C".
14 Rovna (indicating), where my child was found dead, or
16 Q. What is "D"?
17 A. Kovacevac?
18 Q. And "E", please?
19 THE INTERPRETER: Could the counsel also
20 please speak into the microphone as much as possible?
21 MR. SCOTT: Yes.
22 A. "E" is Bare.
23 MR. SCOTT:
24 Q. All right. Those are all locations that
25 you've talked about, I think, in the course of your
1 testimony today, and four of those locations, I think
2 the names will --
3 A. Yes.
4 Q. Excuse me.
5 A. Yes.
6 Q. Four of these locations are where you were
7 taken, yourself, to dig trenches; is that correct?
8 A. It is.
9 Q. Is it true, Witness H, that on some occasions
10 the trench-digging activities, to your knowledge,
11 involved using the Bosniak prisoners who were taken on
12 these details as human shields?
13 A. Yes.
14 Q. In your experience, to your knowledge, was
15 the distance between the HVO line and at some times the
16 army of Bosnia-Herzegovina or the Muslim army line as
17 short or limited as 150 to 250 metres?
18 A. Yes.
19 JUDGE ROBINSON: Mr. Scott?
20 MR. SCOTT: Yes, Your Honour.
21 JUDGE ROBINSON: While I wish I could wish
22 away the column between us, --
23 MR. SCOTT: Sorry, Your Honour.
24 JUDGE ROBINSON: -- the reference to human
25 shields, it occurs to me that it would be useful for
1 the Chamber to have evidence as to what was done to
2 constitute human shields.
3 MR. SCOTT: I guess I was trying to set that
4 up, Your Honour, but perhaps not very well.
5 Q. I was talking to you about the lines between
6 the two opposing forces. Can you tell the Court, and
7 especially to Judge Robinson, would the Bosniak
8 prisoners be put out in between the two lines in front
9 of the HVO lines to do things such as dig trenches or
10 carry ammunition or do other activities at the HVO's
11 orders that were in front of the HVO lines?
12 A. Yes, because they were between the two lines
13 of fire and those -- the HVO soldiers were hiding
14 behind boulders and trees and we were out there, and
15 who survived survived.
16 Q. If I can direct your attention to a
17 particular incident, did you understand on the 17th of
18 April, 1993, five Muslim prisoners from Loncari were
19 killed at the location of Kuber? If I'm saying -- or
20 Kuber --
21 A. Yes.
22 Q. Is it your understanding that the HVO had
23 forced them to carry ammunition for the HVO while
24 exposed to fire? Is that correct?
25 A. Yes.
1 Q. My apologies for mispronunciation. Were
2 these five Muslims Kermo Seid, Kermo Ibrahim, Zlatagic
3 Naim, Ribo Midhat and Hondo, last name apparently not
4 known, but --
5 A. Refugees. Refugees from Kljuc, yes.
6 Q. Can you tell the Court, to your knowledge,
7 were there another approximately 12 young Bosniak men
8 who, to your knowledge or information, were taken from
9 Loncari during the same period of time by the HVO --
10 when I say "period of time," between the 17th and the
11 20th of April, 1993 -- who had been missing or not seen
12 or heard from again since that time?
13 A. True, yes.
14 Q. To your knowledge, does it include the
15 following 12 individuals: Fuad Kermo, Alaga --
16 A. Yes.
17 Q. -- Kermo?
18 A. Yes.
19 Q. Nevzudin Kermo?
20 A. Yes.
21 Q. Sabahudin Pezer?
22 A. Not 16 yet.
23 Q. Ibrahim Pezer?
24 A. Yes.
25 Q. Smajo Pezer?
1 A. Yes, two brothers.
2 Q. Amel Zlagic?
3 A. Zlatagic. Zlatagic. Amel Zlatagic, yes, a
5 Q. Abdulah -- excuse me. I'm sorry.
6 A. Abdulah Pezer.
7 Q. Yes?
8 A. He was born in 1938.
9 Q. Avdo Ovcar?
10 A. Avdo was a refugee, stayed with us, and he
11 was taken away. He was with sheep, and that is why we
12 called him a shepherd.
13 Q. How about Musa Kulosman?
14 A. Musa Kulosman, a refugee from Kljuc, a
16 Q. Did these 12 men who disappeared also include
17 Osman Osmancevic?
18 A. Yes, they were from Jelinak. Osman
19 Osmancevic and Ramo Osmancevic, and those two were over
20 70 years of age.
21 Q. Now, going on, did you also learn that there
22 were also a number of individuals or families from the
23 Nadioci village that were also taken by the HVO during
24 the period 17th to 20th of April, 1993, and were never
25 seen or heard from again?
1 MR. STEIN: Your Honours, may we know,
2 relative to paragraphs 91, 92, and 93, the level of
3 information? This is all being given to us in the
4 passive tense.
5 JUDGE MAY: Yes.
6 MR. SCOTT: In reference to the testimony you
7 have given in the last few minutes, Witness H, how is
8 it that you're aware of the fact these people are
9 missing and the names that we've been going through?
10 How are you aware of that?
11 A. I learnt the names from the daughter of
12 Mehmed Cermic, who was the only one who survived out of
13 their whole family, as far as I know. She told me the
14 names. Her father, Mehmed Cermic; mother, Aica; two
15 brothers, both under age; sister, not yet enrolled in
16 the primary school yet; uncle, Osman Salkic; his wife,
17 Sebiha; his daughter, Mirnesa; and their one child -- a
18 daughter; I can't remember her name. Then two Osman
19 sons, Mirnes and Esad, and their wives. They all went
20 missing. Two children survived in one family and three
21 in another, but altogether, 18 persons went missing --
22 disappeared, so that practically the whole family has
23 been eradicated, except for the daughter, who is
24 married, in our village.
25 Q. All right. To conclude, Witness H, is it
1 your testimony that on about the 13th of May, 1993,
2 Mr. Aleksovski again came into the hangar, along with
3 Mr. Petrovic, gathered the prisoners together and
4 indicated that those who had family in Busovaca could
5 go to Busovaca, which at that time was under HVO
6 control, and those who did not have family in Busovaca
7 could go to Skradno? Is that correct?
8 A. It is, 1.000 per cent.
9 Q. So the record and the evidence is clear, were
10 you being released at that time, or simply is it a
11 matter of being transferred to be kept or detained
12 someplace else?
13 A. Skradno was controlled by the HVO, and the
14 Bosniaks had not yet come out. At the time were taken
15 those who were of some advanced age, about 60 Bosniaks,
16 to wash a little and have a bath. I was at a man's,
17 and he told me, "(redacted), just scram. Scram, get away,
18 don't wait for the knife here."
19 And I got ready. It was the second or the
20 third night. My son-in-law, (redacted), and I,
21 got ready to flee at around half past 11.00 at night,
22 and that is what we did. We set our clocks to 1.00,
23 and we got up. I was too frightened to flee, but when
24 they got up, they said, "(redacted), just get ready." I
25 said "I don't, I'm afraid." But then I began to
1 think. I had a wife, and I still had my three
2 children, and my son-in-law had two children. So I
3 thought, if they kill us, they'll be orphans.
4 So I made up my mind suddenly, and we went
5 down to Kaonik. A woman gave me two shirts and a pair
6 of trousers and a pair of shoes, and I kept it, because
7 after I got out I would have nothing else to wear. So
8 I was carrying it in my hands, not to lose it. A man
9 saw us down to the railway bridge where I had worked
10 the day before, as a prisoner.
11 We reached the bridge near the house of Franc
12 Venco. Rasim (sic) was the first one, Ekrem followed,
13 and I was the third one to follow suit. They wanted to
14 come back from the bridge, and our host, that we spent
15 those two or three nights with, he told me, "(redacted),
17 I pronounced a prayer, and I put that bag
18 over my arm, and we started below the elementary -- in
19 Kaonik -- what was that man's name? I can't remember
20 -- where the Kozica River flows through, the one which
21 flows into the Lasva. When we reached the Kozica --
22 Q. Excuse me. I'm not sure that the Court would
23 want us to go into the complete details of this event,
24 but it's fair to say that as a result of what you were
25 just telling us about --
1 A. All right.
2 Q. -- that you and several of the other Bosniak
3 men did escape from HVO custody around that time, and
4 you were subsequently, then, sometime later, reunited
5 with your wife; is that correct?
6 A. It is. When I got to where my wife was -- I
7 first found my father in Janjici, and when I got to
8 where my wife was, she hugged me tight and asked me
9 where my son was, and I told her that he had been
10 wounded and would be exchanged.
11 Q. Witness H, we're not going to proceed with
12 that further. Please, if you can take a moment, just
13 to ...
14 JUDGE MAY: Witness H, are you all right?
15 A. I'm okay.
16 JUDGE MAY: Have you got anything more,
17 Mr. Scott?
18 MR. SCOTT: Your Honour, that concludes our
19 examination. Thank you.
20 JUDGE MAY: Yes. Very well.
21 How much is there by way of
23 MR. STEIN: It shouldn't be very long. Could
24 we have ten minutes? That might make it shorter.
25 JUDGE MAY: Yes. Yes. What would be
1 sensible would be to break now for ten minutes, and
2 then we'll try and finish shortly after 1.00, and I
3 hope that will be sufficient time for the
5 Witness H, we're going to have a break now
6 for ten minutes, and if you feel all right at the end
7 of that, we'll finish off in about half an hour or so.
8 --- Recess taken at 11.20 a.m.
9 --- On resuming at 11.35 a.m.
10 MR. SCOTT: Your Honour, very briefly, if I
11 could just ask for Defence counsel's co-operation in
12 terms of recognising whether we're in private session
13 or public session in terms of the expected testimony,
14 Your Honour. Thank you.
15 MR. NAUMOVSKI: (Interpretation) My questions
16 will be very brief, very concrete, and we can be in a
17 public session. I will not enter into issues that
18 could identify the witness.
19 JUDGE MAY: Yes, Mr. Naumovski.
20 (Open session)
21 MR. NAUMOVSKI: Thank you, Your Honours.
22 Cross-examined by Mr. Naumovski:
23 [Witness answers through interpreter]
24 Q. Mr. H, allow me to introduce myself. My name
25 is Mitko Naumovski, and I represent Mr. Dario Kordic.
1 I apologise for having to put a few questions to you,
2 but I will be very brief, and I ask you to answer them
3 for me. As we understand one another as soon as we
4 speak, after my questions, will you make a pause of a
5 few seconds for the interpreters to able to translate
6 into the appropriate languages?
7 Have you understood me?
8 A. I have.
9 Q. Mr. H, you said that on the 16th, of the
10 morning, you heard on the news Mr. Dario Kordic issuing
11 an order to HVO units to attack units of the BH army;
12 isn't that so?
13 A. It is.
14 Q. You heard that on the news?
15 A. On Radio Busovaca.
16 Q. The news of Radio Busovaca?
17 A. Yes.
18 Q. So on the news, on the media, public media,
19 you heard Mr. Kordic issuing military orders?
20 A. Yes.
21 MR. NAUMOVSKI: (Interpretation) Your Honours,
22 in view of the situation and the condition of the
23 witness, I have no further questions.
24 JUDGE MAY: Well, I think, if it's disputed
25 that Mr. Kordic said anything on the radio that
1 morning, then that should be put to the witness.
2 MR. NAUMOVSKI: (Interpretation) It is
3 disputed, indeed, Mr. President.
4 JUDGE MAY: Witness H, are you sure that it
5 was Mr. Kordic you heard on the radio that morning?
6 A. One thousand per cent. One thousand
7 per cent.
8 MR. NAUMOVSKI: (Interpretation) I understand
9 the answer. You see, in preparing for the
10 cross-examination today, I had several questions,
11 taking into account a host of witness statements that
12 we have received, but I simply think there is no need
13 for us to confront this witness, with the testimony of
14 all the other witnesses who make no mention of this.
15 JUDGE MAY: That is, as far as I recollect,
16 the only relevant point on which a challenge was
17 necessary, if one was to be made. If you don't want to
18 ask any more questions, you won't be criticised.
19 MR. NAUMOVSKI: (Interpretation) I really
20 don't have any more questions. The witness answered
21 what we wanted him to say. He heard on Radio Busovaca
22 a publicly-made order by Mr. Kordic, and that is all --
23 at 5.00, in the 5.00 news -- and that's all.
24 JUDGE MAY: Very well.
25 MR. NAUMOVSKI: (Interpretation) Thank you.
1 JUDGE MAY: Mr. Kovacic?
2 MR. KOVACIC: (Interpretation) Your Honours,
3 Mr. President, thanks to the fact that the Prosecution,
4 in its brief dated the 3rd of May entitled "Review of
5 Witnesses," under Point 290 on page 22, listed the
6 counts from the indictment in connection with which
7 this witness would be testifying, and as not a single
8 count has been listed with charges against my client,
9 we really have no reason to cross-examine this
11 JUDGE MAY: Very well.
12 I take it there's no re-examination?
13 MR. SCOTT: One question, Your Honour.
14 JUDGE MAY: Very good.
15 MR. SCOTT: Your Honour, I believe the
16 suggestion is that it would be unreasonable for
17 Mr. Kordic to have made a public order. I have one
19 Re-examined by Mr. Scott:
20 [Witness answers through interpreter]
21 Q. Witness H, can you provide any assistance to
22 the Court on why Mr. Kordic, on the 16th of April,
23 1993, would have made a public announcement or order
24 about an HVO attack?
25 MR. NAUMOVSKI: (Interpretation) I wanted to
1 object, Your Honour, because I think that this question
2 is not related to my question. My question was quite
3 different, to this witness, and in connection with this
4 order, or rather what he heard.
5 JUDGE MAY: I shall allow the question.
6 MR. SCOTT:
7 Q. Witness H, do you recall the question pending
8 to you? And the question --
9 MR. SCOTT: Let me rephrase it -- or let me
10 state it, Your Honour, if I may.
11 Q. Can you provide any assistance to the Court,
12 in your understanding, having lived in Central Bosnia
13 and been through these events, why it is Mr. Kordic
14 would have made such a public statement at that time?
15 A. Well, let me see: He was the main figure in
16 the media, and he, himself, can tell you why.
17 JUDGE MAY: Yes.
18 MR. SCOTT: Thank you, Your Honour.
19 JUDGE MAY: Witness H, that concludes your
20 evidence, and you are now released. Thank you for
21 coming to the International Tribunal to give evidence,
22 and you can go now to your appointment.
23 A. Thank you, too. Thank you, too.
24 Let the world and Europe know what happened
25 to the Bosniak people. I appeal to you once again, and
1 I insist that they should find the graves of our
2 children. Sisters, mothers, brothers, fathers, are
3 demanding that. Let them find them. We cannot go on
4 living in depression. There is not a single moment in
5 my life when I do not see my son in my mind. I saw him
6 in the camp, he turned around and left. I begged
7 Mr. Vukadinovic to take me instead of him, and they
8 wouldn't let me.
9 JUDGE MAY: Yes. Thank you.
10 (The witness withdrew)
11 MR. NICE: I think timetable pressures are
12 now substantially reduced, I'm happy to say. I haven't
13 got the next witness here because I had no reasonable
14 expectation that he would be required this morning.
15 Indeed, I sent him away. I am making arrangements for
16 him to come back this afternoon, but it may be that the
17 Tribunal would want to accelerate the procedural
18 argument, and then we can take the witness at the end
19 of that, if there's some of the afternoon left. It
20 looks as though we won't be under pressure of time
21 tomorrow morning either.
22 (Trial Chamber confers)
23 JUDGE MAY: What is the estimate for the next
24 witness in terms of examination-in-chief?
25 MR. NICE: I would have thought less than an
1 hour in chief, and I don't know how long he would be in
3 MR. SAYERS: I would anticipate that we would
4 spend some considerable time with the next witness,
5 Your Honour, but I can't tell you how long without
6 having heard the direct examination.
7 JUDGE MAY: Well, if we start tomorrow
8 morning at half past 9.00, is that going to be
9 sufficient, and he is finished by half past 10.00? We
10 will then have till 1.00.
11 MR. SAYERS: I think that should be
12 sufficient, Your Honour, yes.
13 JUDGE MAY: Very well. We'll do the argument
14 this afternoon. If there's any time available, we'll
15 hear the witness, or at least make a start.
16 I wonder if the legal officer could just come
18 (Trial Chamber confers)
19 JUDGE MAY: Mr. Nice, we'll hear Mr. Smith at
20 half past 2.00, and then you in response. I'm going to
21 have distributed the proposed calendar for the autumn,
22 which anticipates hearing this case throughout, apart
23 from breaks. It has my name on the top, but that can
24 be ignored, and if anybody wants to address us on it,
25 then by all means, do so, but it will give another
1 50-odd days' sitting, taking account of half days, and
2 certainly, as far as we are concerned, we would expect
3 the Prosecution to be finished by the end of the
4 autumn, which would be the 10th of December.
5 If you disagree, perhaps you'd let us know,
6 and we will consider it.
7 MR. NICE: I will consider these matters as I
8 said I would yesterday, and we'll let you know as soon
9 as we can give an accurate estimate.
10 JUDGE MAY: There's one matter which the
11 Defence can assist us on. There is no need to respond
12 at the moment, Mr. Stein. At the end of the
13 Prosecution case, we will consider an adjournment, if
14 we are asked, to allow you time for preparation. But
15 we would not anticipate that being a long one. Again,
16 perhaps you can give some thought to it and what
17 submissions you would like to make.
18 MR. STEIN: I assume we won't be working over
19 the Christmas holidays.
20 JUDGE MAY: The Christmas holidays and the
21 millennium can, on this occasion, be taken into
23 MR. STEIN: In particular, with regard to
24 flights on the millennium, I want to be well beyond
25 that day.
1 JUDGE MAY: No, no. Obviously, we need to
2 think about timetabling from now on. I think the usual
3 sort of time that is allowed here is a month, but
4 perhaps you would like to think about it.
5 MR. STEIN: Thank you very much.
6 JUDGE MAY: We will meet again at half past
8 --- Luncheon recess taken at 12:55 a.m.
1 --- On resuming at 2.30 p.m.
2 JUDGE MAY: Yes, Mr. Smith.
3 MR. SMITH: Thank you, Your Honour.
4 I will be presenting the argument for
5 Mr. Kordic opposing, very strenuously, two key aspects
6 of the Prosecutor's proposal. First, the placing of
7 prosecutorial witness statements in evidence and,
8 secondly, using summaries and surrogate testimony by
9 Prosecution investigators in lieu of live testimony by
10 percipient witnesses.
11 Mr. Stein will address the practical
12 questions raised by the Prosecutor's proposal, and
13 Mr. Naumovski is available to answer questions as
14 necessary concerning the civil law portion of our
15 skeleton argument.
16 We have furnished you a skeleton argument. I
17 apologise that it is a bit ragged, but we wished to try
18 to respond as directly and fully as we could to the
19 specific questions Your Honours raised yesterday. We
20 also wished to produce a written record of our views on
21 this matter that would be available should there be a
22 holding adverse to the accused, which I am bound to
23 tell you would, I believe, result in an immediate
24 request for interlocutory appeal. I can't speak for
25 the Prosecution.
1 Let me give you then a quick overview of our
3 First, the validity of the Prosecutor's
4 proposal as to this admittedly circumstantial case that
5 it has chosen to file must be measured first and
6 foremost against the specific language of the
7 Tribunal's Statute and Rules.
8 It is our assertion that the two key aspects
9 of that proposal that I have just noted are
10 unauthorised by both the Statute and the Regulations
11 and would require radical and unprecedented changes to
12 each. Given -- sorry, Your Honour.
13 JUDGE MAY: Mr. Smith, you say that, but
14 there is the appeal decision in Aleksovski, which goes
15 somewhere to meeting the points which you make, which
16 admits certainly the evidence of transcripts where
17 there has been cross-examination.
18 MR. SMITH: Your Honour is accurate in that
19 observation. The Aleksovski case, in our judgement, is
20 fundamentally different from the case before Your
21 Honours now.
22 As Your Honour indicated, that case involved
23 use of sworn prior testimony before this Tribunal in a
24 judicial forum that had been subject to at least some
25 form of cross-examination by a defendant. This case is
1 a bridge farther, in our judgement, because it deals
2 with unsworn statements given to investigators employed
3 by the Prosecutor, not subject to judicial supervision,
4 and statements which are not subject to the laws and
5 penalties of perjury. I will go on at some length
6 about that.
7 Because all three of Your Honours sat on the
8 Appeals Chamber in the Aleksovski case, where the
9 relevant provisions of both the Statute and the Rules
10 that we cite in our skeleton argument were dealt with
11 in some detail, I will go very quickly over that
12 portion of the argument, and I will devote my time this
13 afternoon to dealing with what I believe to be
14 a mischaracterisation of the results that would obtain
15 under civil law, and the International Covenant on
16 Civil and Political Rights that Your Honours enquired
17 about yesterday, and the Nuremberg Tribunal issue.
18 I think it is important at the outset to note
19 that this case does not involve legal parochialism,
20 although the two key aspects that I have indicated are
21 inconsistent with and unacceptable under both the
22 common law and the civil law systems of criminal
24 Here, however, as this Chamber has indicated
25 with some frequency, we are not dealing with national
1 law. We are dealing with international humanitarian
2 law, international criminal law; U.N. law, if you
3 like. The question then is, "What does that law
4 require, and what rights does that law provide as it
5 evolves out of hundreds of years of civil and
6 common-law tradition and thinking by the best legal
7 minds and the best judges? What does that law provide
8 in the way of rights for defendants?"
9 Secondly, this case does not involve a
10 question of the willingness of the Defence to
11 experiment where there is no substantial compromise to
12 the rights of the defendant, and we believe -- I've set
13 out in the brief, in the argument, where we have been
14 prepared to experiment.
15 Thirdly, it does not involve the question of
16 the admissibility of much of -- certainly not all of --
17 but much of the documentary material in the dossiers;
18 photographs, maps, things of that sort. What it does
19 involve are the two issues that I posed earlier; the
20 use of witness statements and the use of OTP
21 investigator witness summaries and surrogate
23 JUDGE MAY: Let me interrupt you. I don't
24 want to stop you rehearsing these matters. We have
25 read your brief, and very helpful it is too, so in a
1 sense we have your arguments. But let me interrupt you
2 so that I could be sure of what is really at issue.
3 You say, (1), the unsworn statements, use of
4 the unsworn statements as evidence; (2), the use of the
5 investigator's summary as evidence.
6 MR. SMITH: And the investigator testifying
7 to the summary and sponsoring the entire dossier as an
8 exhibit, which I anticipate is what the Prosecutor has
9 in mind, Your Honour.
10 JUDGE MAY: Let me just get that down. So
11 what is not at issue, you say, is the admissibility of
12 the documents or, rather, perhaps put it this way, the
13 documentary evidence from the dossier?
14 MR. SMITH: What is not at issue is that much
15 of it may be admissible and possible to stipulate. I'm
16 not agreeing that all of the documentary evidence
17 produced in this sample dossier or in any dossier would
18 necessarily, in and of itself, for that reason be
19 admissible, but I am saying that when we look at the
20 dossier, much of the maps and things of that sort,
21 photographs, all sorts of things that we have offered
22 to stipulate about as to the "Zenica mortar rounds"
23 incident, may well be stipulatable as to
24 admissibility. So that it is the witness statements,
25 the witness summaries, and the testimony of the --
1 surrogate testimony of the investigator, standing in
2 the shoes of the declarants, that we are focusing on.
3 JUDGE BENNOUNA: (Interpretation) I have read
4 your arguments, which are very interesting and
5 comprehensive, most of the things you have offered,
6 which carries legal argument which is exhaustive and
8 You understand, I believe, that the
9 International Tribunal of which we are a part is a
10 Tribunal confronted with specific problems which are
11 not comparable to those of national tribunals. We are
12 an International Tribunal dealing with specific
13 problems, and I think everyone will agree that the
14 Statute and the Rules are such that cannot adopt the
15 rules of any national system.
16 It is understandable that it is the
17 Prosecutor and not the investigating judge, as you have
18 said in your argument, who can submit certain evidence
19 which constitutes the whole dossier, and there you made
20 a distinction between the common law and civil law
21 systems. In one case, the Prosecutor is the party, and
22 on the other hand, you have an investigating judge, who
23 is neutral.
24 We have been able to follow your reasoning.
25 We cannot apply the civil law rules regarding the
1 administration of evidence in a system in which we have
2 no investigating judge, but we must, nevertheless, have
3 a coherent dossier and make a selection out of all the
4 evidence proffered, and we must manage that evidence
6 You, yourself, have proposed that there
7 should be only two witnesses per village. I remind you
8 of your proposal when you said two witnesses per
9 village, and you said that that system does not limit
10 the number of testimonies to two per village, but for
11 all additional witnesses, the Prosecutor must submit
12 argument to show why such-and-such a witness, in
13 addition to the other two, is necessary; what new
14 evidence he can produce, rather than repeating what has
15 already been said. That is what you proposed, isn't
17 You put us in a rather awkward position,
18 because it means that we have to choose the witnesses,
19 and it is not up to the Judges to impose the choice of
20 witnesses on the Prosecutor. And on the other hand,
21 the Prosecutor himself is in a situation when he has a
22 certain number of facts which he wishes to present,
23 without being limited by the proposal of the Defence.
24 That is where we stand.
25 Now you are telling us -- the proposal of
1 Mr. Nice came later, when he said, "I am proposing a
2 dossier, asking you to take advantage of both the
3 common law and civil law systems, in order to be able
4 to make progress." You have said that you wish to
5 cooperate, but we must note that so far, the
6 co-operation has produced nothing, because the Defence
7 has not accepted anything at all. You said you could
8 accept photographs, or the independence of a certain
9 country dates from such-and-such a date; that is clear,
10 but that is not helping us.
11 What is being proposed in the dossier -- and
12 that is why I believe that all your arguments do not
13 correspond fully to the proposal made by the Prosecutor
14 -- they have not proposed that those statements should
15 become testimony, in a sense, in the strict sense of
16 the word. They preserve the status of statements,
17 taken by the Prosecutor under the corresponding
19 So it is not a question of violating any
20 Rules or changing the practice. We take them as
21 documentary evidence, available documentation, which
22 consists of all kinds of things: Statements,
23 documents, photographs. There may also be objects; any
24 element which will help us to establish the truth.
25 Mr. Nice has proposed that the investigator
1 should present the dossier, but he is not coming as a
2 witness in the place of the declarant. He's just
3 coming to tell us how the dossier was compiled, which
4 is quite a different matter, under which conditions the
5 statements were taken, and what is the contents of that
7 He is not going to testify on the contents,
8 and it is important to bear that in mind. There is a
9 is a distinction. He is going to present the dossier,
10 and you can say to him, "That photograph doesn't come
11 from such-and-such a place, you have made a mistake,"
12 or "That person does not have such-and-such an
13 identity" -- I'm just saying anything -- "The date of
14 birth is not good," or "That village is not situated
15 where you say," et cetera. But he's going to come and
16 present the dossier, and we are together doing the work
17 of an investigating judge in a civil law system, but
18 someone has to do that. We cannot allow ourselves to
19 have a procedure, in view of the time distance, to go
20 on for so long as to be criticised, as we already have
22 When that dossier is presented by an
23 investigator, you are going to express your opinion
24 about that dossier, comment on it. From there on, the
25 Prosecutor is going to propose to us the witnesses that
1 he considers to be most appropriate to call to the box,
2 the witnesses that we are going to hear here and who
3 will be subject to cross-examination.
4 The dossier does not have the weight of
5 evidence, but anyway, we have those statements, and you
6 have them, too. Everyone has those prior statements.
7 It is just the way in which they are presented, in the
8 form of a dossier, that is being changed. We will be
9 going through a series of villages throughout Central
10 Bosnia, and the whole situation is extremely complex,
11 as you must admit, because we are covering an entire
12 geographical region. A dossier is a means of better
13 grasping, perhaps, what it is all about, because one is
14 going from one village to another, sometimes from one
15 witness in one village, another witness in another
16 village, and they are proposing to present a totality
17 of factual elements collected by the Prosecutor within
18 a single dossier.
19 It is absolutely understood that what we call
20 "testimony" is testimony given here. That is
21 testimony, and that is where the Covenant on Human
22 Rights intervenes, when it says that when a witness has
23 been called, the accused has the right to
24 cross-examination and to bring his own witnesses. But
25 it does not prohibit prior activities, as was noted by
1 Mr. Nice; otherwise the whole civil law would be
2 contrary to the Covenant on Human Rights, which would
3 be absurd. We cannot say that that Covenant envisages
4 only testimony in the courtroom, enabling
5 cross-examination. That is absurd. And that is not
6 true, anyway, regardless of the arguments.
7 That is why, in my view, one should put in
8 relative perspective the question of the dossier. It
9 is a method of presenting in the most practical and
10 simplest manner, perhaps the most operational manner, a
11 whole situation, but, of course, within the framework
12 of the rights of the Defence. So we can go back to
13 your system, which means that there will be witnesses
14 included in the dossier and who will be heard here, the
15 most pertinent witnesses, who will provide a most
16 complete picture of the village in question. You will
17 tell us, when we deal with the dossier, to what extent
18 you wish to cooperate. As was stated this morning in a
19 testimony, whether certain facts -- this camp, this
20 prisoner, this digging of trenches, this displacement
21 of the population -- are they contested, or are they
22 not contested?
23 That is the framework within which,
24 Mr. Smith, I would like to ask you to assist us. It is
25 not to challenge the system of the dossier as such
1 because it introduces indirect evidence without
2 respecting the right of the Defence. I think that is
3 not at all the intention of this Court. I said it
4 yesterday, and I repeat it today: Our intention is to
5 fully respect the rights of the Defence, but in
6 administering justice in the most loyal and efficacious
7 manner possible.
8 You tell us that you wish to cooperate. We
9 take your word for it. Take the dossier and
10 cooperate. But if you have not managed to cooperate up
11 to now, the proposal is that the dossier be presented
12 here, and that the cooperation be manifested, in a
13 sense, before the Trial Chamber itself, with all the
14 necessary guarantees, and we will agree on them with
15 you so that we can go forward. Otherwise, the system
16 will be blocked.
17 That is what I wish to say, Mr. President. I
18 hope I was clear enough in conveying my thoughts to
19 Mr. Smith.
20 MR. SMITH: Let me try to deal with several
21 of your points, Judge Bennouna.
22 First, I want to make it clear, as I believe
23 you have done, that our proposal was, simply pick an
24 arbitrary number -- two, that seemed adequate to us --
25 of witnesses that could generally characterise a
1 situation in a village. Some other number could have
2 been picked -- could have been five, could have been
3 three -- but we deliberately provided a flexible
4 mechanism for allowing further witnesses, where
5 necessary, to help the Trial Chamber, as we saw it,
6 avoid the impact of a direct cutoff, either on a
7 per-village basis or in terms of the total case
8 proposed of over 350, 370-some proposed witnesses.
9 In terms of our co-operation, we have been
10 very hard pressed, as we've said in the papers, to both
11 cope with the discovery and prepare for
12 cross-examination at the same time we were offered,
13 invited to agree to stipulations which we found to be
14 quite argumentative and would have required a great
15 deal of time to sort out. We are now in the process of
16 preparing a proposed set of factual stipulations
17 ourselves, which we hope to able to present to the
18 Prosecutor, that we believe are less argumentative --
19 we are deliberately trying to make them so -- and aid
20 the Court in going forward in that fashion.
21 In addition, it's very difficult to take
22 2.700 potential exhibits, most of which you haven't
23 seen, and decide which ones you're prepared to
24 stipulate. It is even very difficult to take the large
25 number of core documents that we had, which we got with
1 the Prosecutor's pre-trial brief, which we were
2 assimilating at the same time we were trying to write
3 our responsive pre-trial brief. We now are at the
4 relative end, I think it's fair to say, of a process of
5 trying to come up with what I think will be a rather
6 large list of the core documents that we're prepared to
7 stipulate as to the admissibility.
8 So we are doing everything we can to
9 cooperate. Yet, if we had had the material that we got
10 just prior to trial three or four months prior to
11 trial, we would have then been able to devote the time
12 to reading it, sorting out what we could agree with,
13 what we couldn't, and looking at the documents and
14 going through a process with the Prosecutor. That
15 didn't happen, and that put us in a very difficult
17 Furthermore, we have had to go and we are now
18 going over every single one of the core documents with
19 our client in Croatian to get his judgements, because we
20 obviously are not free, without consulting our client,
21 to make concessions that affect his fundamental
22 rights. That is a very time-consuming process, but as
23 I say, I hope we are close to coming out the other end
24 of that process.
25 I had assumed, and it may be that we
1 should -- and I guess we will hear from the Prosecutor,
2 what they intend. I had assumed that the witness
3 statements in the dossier were intended, at least in
4 some cases and maybe a great many cases, to be read
5 into evidence with the witness not attending, over the
6 objections, if any, by the defendant. That would give
7 us great pause.
8 I make another point about the investigative
9 judge. If this Tribunal is sitting in the nature of an
10 investigative judge when it receives the dossier in
11 some form, I take it not as evidence, at least in the
12 civil law tradition, as I understand it, an
13 investigative judge, when it takes statements from a
14 witness, gives notice to the defendant -- at least this
15 is true in Bosnia and the former Yugoslavia -- and the
16 Defence counsel has a right to be present and the
17 Defence has a right to confront the witness and ask
18 questions, so that maybe you and I are coming to the
19 same point, which is that the material in the dossier
20 that we are particularly concerned about, the witness
21 statements and the witness summaries, summaries of what
22 the witnesses would say, is similar to the one that's
23 been proffered here. I hear you saying that they would
24 not come into effect unless a witness appeared and
25 testified, if the Defence wished to cross-examine that
2 In a sense, the entire dossier then becomes a
3 larger offer of proof, and I remind Your Honours,
4 although I think events just this morning are fresh in
5 your minds, even where a witness has had interviews
6 with a Prosecutor, an officer of the Court, and they,
7 in all good faith, think they understand what the
8 witness is going to say, the offer of proof apparently
9 frequently diverges from what the witness says when he
10 is on the stand, subject to the right of confrontation
11 and the right of cross-examination.
12 One thing that puzzles me about what I
13 understand Your Honour to be suggesting is what is the
14 incremental value of having the dossier in front of the
15 Judges if it is not evidence, cannot be placed in the
16 record as evidence to be considered in a judgement
17 without the attendance of a witness, what additional
18 value and savings of time is obtained beyond that which
19 would be obtained simply by the Prosecution presenting
20 it to the Defence and the Defence considering it as the
21 case goes forward, because --
22 JUDGE MAY: Let me follow that. The
23 Prosecution presenting the dossier to the Defence, and
24 then what?
25 MR. SMITH: What I'm suggesting is that to
1 the extent that there is a savings of time resulting
2 from a focusing of the Prosecution's very large and
3 amorphous case by the compilation of the dossier, given
4 that the material, the witness statements and the
5 witness summaries in the dossier, cannot come into
6 evidence without a witness being present, what
7 advantage is there to placing that material in front of
8 the Judges? I recognise that the Judges are
9 professional judges, capable of separating what is in
10 evidence from what is not and not being swayed by what
11 is not in evidence, but even with offers of proof, the
12 best efforts by the Prosecutor, right before the
13 witness attends and testifies, to capture what it is
14 the witness will say, we find those offers of proof
15 made in all good faith frequently do not correspond
16 with what the witness says. How much more unreliable
17 are the witness statements? The question is if you
18 weigh the benefits against the prejudice, what is the
19 value of placing the dossier itself in front of the
20 Tribunal? What incremental value is there to that,
21 when the material can't be considered, the witness
22 statements and the summaries, unless the witnesses
24 If there is any value in the dossiers --
25 (Trial Chamber confers)
1 JUDGE MAY: Yes, Mr. Smith.
2 MR. SMITH: Thank you, Your Honour.
3 Your Honour, I think I've taken the best cut
4 I can at answering Judge Bennouna's questions, and
5 we're really here in an area of the practical
6 consequences of the proposals and of the requirements
7 of the law.
8 I suggest that I hold myself available to
9 answer questions that you may have on the legal
10 arguments set out in our skeleton, but that I turn over
11 at this point to Mr. Stein to deal in more detail with
12 these very practical issues of how to make progress, if
13 I might.
14 JUDGE MAY: Yes. There is one problem which
15 occurs to me, Mr. Smith, and that is, of course, we are
16 tending to debate this in a vacuum, and it may be
17 sensible at some stage to look at what's actually in
18 the Tulica dossier and discuss that, and treat this, if
19 only as an exercise, but treat it as an application to
20 admit that dossier in evidence, with the investigator
21 possibly giving evidence about it or something of that
22 sort. If we treat it in a more concrete way, it may be
23 that we will be able to find, if there is any, some
24 common ground or find what matters we've got to rule
1 MR. SMITH: That is precisely what Mr. Stein
2 has prepared himself to deal with.
3 I take what you are suggesting, though, that
4 the hypothesis be that the witness statement and the
5 investigator's summary come into evidence as evidence
6 placed in through a dossier by the investigator on the
8 Mr. Stein.
9 JUDGE MAY: If that is taken as the
10 application, at least it's something on which we can
11 work. Yes, Mr. Stein.
12 MR. STEIN: Let me move immediately to the
13 area that we want to address, the document in front of
14 me, which is the Tulica dossier and Tulica report.
15 As Your Honour immediately noted -- by the
16 way, do you have these on your --
17 JUDGE MAY: We have the Tulica report from
18 the investigation team leader. We were given that
19 yesterday. The dossier is in front of us. The legal
20 officer has it.
21 MR. STEIN: All right. If you don't mind.
22 The most important thing, frankly, about it
23 is the index. As Your Honour pointed out yesterday
24 quite accurately -- I'm going to put my headset on,
25 because someone is going to tell me to slow down very
1 quickly, I'm sure.
2 As Your Honour pointed out, the maps, no
3 problem. The footage relative to the presentation,
4 again no problem and no question about that. The
5 witness statements I'll get back to. The Court
6 transcripts, this would be transcripts set out at 15
7 through 18, first Witness 15, NN, has refused to come.
8 The Prosecutor hasn't claimed that's because we did
9 something untoward, and his refusal to come through the
10 front door, it should not be allowed for his testimony
11 to come in through the back door unless an application
12 was made under Aleksovski.
13 As to Witness 18, that witness was Witness D
14 in this case, and they propose putting in his testimony
15 again, I don't see why.
16 The exhumation documents and the report of
17 the exhumations raise other interesting issues that I
18 won't burden the Court with, but not the least of which
19 they were done in February of 1998, when the defendant
20 was under indictment, and we were not asked to
21 participate. Again, that doesn't go to the
22 admissibility, but it raises an interesting issue.
23 The exhumations, however, do contain expert
24 reports of forensic pathologists and their conclusions,
25 which run afoul of our rules relative to experts.
1 The documentary evidence relating to the
2 destruction of property, the photographs, the rest of
3 the items, again, no problem.
4 So where it gets to the rub of the issue, of
5 course, is the witness statements and the Tulica
7 First with regard to the statements, they are
8 not complete. The statements that are put in the
9 dossier are titled "The Official Statements". They
10 have a headnote on them. They are official witness
11 statements, International Criminal Tribunal, et
12 cetera. There are other statements of these same
13 witnesses given either before or after their statement
14 to this particular investigator which are not included,
15 so the presentation of their statements, such as they
16 are, is not complete.
17 Now, of course this brings us to how are
18 these statements to be used? If they are just here
19 filling space, then our position is they are not
20 needed. If they are here to be read by the Court to
21 kind of get a broad view of what's going on, but not
22 evidence, then frankly again they are not needed,
23 because if we go to the non-percipient dossier witness
24 who will explain to you the general territory in a
25 fashion I can suggest that would not be inappropriate,
1 then we don't need these statements.
2 In fact, if you read each one of these
3 statements, Your Honour Judge Bennouna's concerns
4 become self-evident. Each has a different perspective
5 about a same village, and you're looking for an
6 overview of what happened in that particular village.
7 I would have thought that the Prosecutor's opening
8 would have given you that overview, and theoretically I
9 can see him calling an investigator to talk about the
10 geography of a village, the racial composition of a
11 village, how that village relates to the front lines,
12 and other kinds of data, without going into the
13 specifics of what the witnesses have told him about the
14 events at issue.
15 Now, you can even have it at one further
16 level. You could say, if you were the investigator,
17 that "the Prosecution claims" or "it is alleged" by a
18 variety of witnesses, without naming them, and that
19 might not run afoul of the confrontation rights. But
20 the wholesale integration of the selectively-chosen
21 witness statements to be representative of anything
22 runs afoul of what Mr. Smith articulated in our papers
23 and creates additional problems.
24 I think part of our dilemma, frankly, Judge,
25 is we're not sure -- I hear what you're saying, I've
1 read what the other side is saying, and my sense of
2 what the Prosecutor's proffer or papers is they want
3 these statements to be read as substantive evidence,
4 shifting to either the Court or to the Defence the
5 decision on whether to call these witnesses. If I read
6 the other side's papers right and the proposals right,
7 they want the Court to either make a preliminary
8 determination that it needs to hear from these
9 witnesses, or that it doesn't, or the Defence to make a
10 showing, based on these papers, of why they need to be
11 called. Our legal position, of course --
12 JUDGE BENNOUNA: (Interpretation) Mr. Stein, I
13 think we are wasting time uselessly. I think there is
14 a misunderstanding, because I think that the Prosecutor
15 said something that I didn't understand in that way.
16 It was never a question of taking the statement of an
17 investigator as that being evidence without any filter,
18 if I can put it that way. That is not possible. I
19 don't think any jurist could accept such a thing,
20 except going through another system with an
21 investigating judge, et cetera, which is not the case
23 What was proposed you know very well. You
24 just said the photos do not pose any problems, some
25 documents also. You know very well that since we
1 started this trial, there were a certain number of
2 facts that were not challenged either by the Defence or
3 the Prosecution as to what has happened. Where the
4 problem arises, and which is a subject of conflict and
5 contestation is, "Is the accused quoted or linked to
6 such and such an event," and three-quarters or
7 four-fifths of the testimony relates to facts that
8 occurred here and there, which is the background of the
9 charges made through linking those facts with the
10 accused. The link, that is the problem which is being
12 What will appear in the dossier is that a
13 certain number of elements, and you yourself have said
14 that, do not require to be testified about in court,
15 and that is what we wish to achieve.
16 If we had a historical distance, we could
17 have historians to tell us about that, but we can't do
18 that. After all, at the end of the day, we will say,
19 "This is what happened in such and such a place."
20 There's no need to repeat things. If you are
21 challenging a certain point, it is sufficient to bring
22 one or two witnesses to corroborate that point, and it
23 is not necessary to bring other witnesses. That
24 happened this morning, in fact. We heard the same
25 things once again.
1 We wish to start from a village, and the
2 Prosecutor has proposed an investigator. If you have a
3 different proposal, it is welcome, to find the common
4 denominator, and also what is being contested, and
5 proceeding from there to bring testimony on matters
6 which are truly being contested in such and such a
7 village. That is the spirit in which we wish to work.
8 If a statement is not being contested, we
9 will take it as evidence, but with your agreement. If
10 a certain aspect or a certain page of a statement is
11 not being contested by Mr. Stein, then we will accept
12 it as evidence. If it is being challenged, we will ask
13 you why. We will try to understand your arguments.
14 Then we will return it to the Prosecutor to do what is
15 necessary to call evidence in court.
16 We are not about to revolutionise the Rules
17 of the Tribunal. That is not the role of a Trial
18 Chamber, to revise the Rules. There are strict
19 procedures envisaged for that.
20 MR. STEIN: Judge Bennouna, you covered a lot
21 of ground. I'll try to respond to all of it, if I
23 First, let's go back. We have tried to
24 cooperate, to the extent that we can, and I emphasise
25 "to the extent that we can" for reasons Mr. Smith
1 stated, with what's been going on. And what's been
2 going on, in the first instances, is Your Honour
3 specifically told the Prosecution, "Put on your best
4 witnesses, put them on first." We assumed that meant,
5 "Put on your best witnesses that link Mr. Kordic to
6 the allegations set forth in the indictment," not the
7 atmospherics, not the polemics, and not the horrible
8 things that have happened in the Lasva Valley. "Link
9 Kordic and the other defendant to what are the crimes."
10 That takes their best witnesses, which they said they
11 would put on first, and probably longer.
12 What we found, as we produced evidence, was
13 that the witnesses who were prepared to testify did not
14 offer much in the way of linkage, and indeed the
15 appellate papers we cited.
16 The Prosecutor acknowledges now, in his
17 appeal of Your Honours' decision excluding witness,
18 that this is a circumstantial case. He called it a
19 subtle case when he opened in his statements. He said
20 the evidence goes in both ways in his opening
22 Well, the evidence has not gone in both ways,
23 it's gone one way, our way, and the Prosecutor's
24 evidence is reed-like thin --
25 THE INTERPRETER: Could the counsel please
1 slow down just a little bit?
2 MR. STEIN: -- relative to the linking of Mr.
3 Kordic to that which is alleged. The evidence, we
4 tried to help out, of witnesses who, for whatever their
5 reasons, talk in polemics.
6 It was suggested there be a summary made.
7 After a few experiments with it, it works. Leading a
8 witness on preliminary matters and Your Honours
9 peppering us with questions, what's in dispute and what
10 isn't in dispute, has made the proceedings move much
11 more quickly.
12 So one of the issues, of course, before the
13 Court is do we need a remedy at all as, with all
14 respect, radical as including these witnesses
16 The process could be even refined more, I
17 might suggest, by the Prosecution being clear with the
18 witnesses when they talk about what they are talking
19 about from what they've seen or heard, versus what
20 they've been told, and then we can get to the level of
21 what they have been told, whether it's first, second,
22 third hearsay, first, second, or third reliability, and
23 then we can get to where we're at.
24 I have no problem working with the
25 Prosecution on in any fashion on the issues that we're
1 going to present to them on the facts. So we can
2 present to you an entire chart of dates, actions,
3 issues, that are not in conflict, because the rub of
4 this case is always the evidence against Mr. Kordic to
5 those facts.
6 This document, however, again boils down to
7 -- Judge, and I respectfully submit, that the reading
8 of this Tulica report last night lead me to conclude
9 that it is being used in lieu of live testimony. If
10 it's not, fine, then we are just standing here wasting
11 time. On the other hand, if this Tulica report,
12 prepared by an investigator who did not speak with
13 these witnesses, I might add, the witnesses who were
14 named at entries 7 through 14, only one of which was
15 interviewed by Mr. Radikinen. Instead the other
16 witnesses were interviewed by, all but -- Mr. Radikinen
17 interviewed, let's see, Witnesses number 14. The
18 others were interviewed by either Ms. Bajwa and Trudy
19 Gillison. So quite frankly, I have some question about
20 whether or not this witness is the proper witness to
21 use in this fashion.
22 This looks like, frankly, the reports that we
23 get before grand juries or the reports we get at
24 preliminary hearings in our jurisdiction, which is done
25 akin to what you're just talking about, where any
1 detective or investigating official tells the Court who
2 has to make a probable cause determination what the
3 evidence the state has in its possession. So I'm used
4 to these kinds of things. This document is very
5 specific. It points to what each individual witness
6 saw, heard, or would testify to. It's not an
7 overview. It names each witness tab by tab and
8 consequently stands in lieu of the witness's testimony
9 and invites Your Honours then to go to the tab of the
10 book and review whether or not the investigator who has
11 compiled the dossier is accurate.
12 Having done that, I can tell you he's not,
13 particularly when you use the full panoply of witness
14 statements available to us. For instance, the witness
15 who authored this Tulica report says, as if he were
16 there, that the HVO attacked a village at a certain
17 place, a certain time, and then references one of the
18 witnesses in the dossier. The problem is, that witness
19 has also said the village was attacked by Serbs at the
20 same time, members of the Serbian army. That's left
21 out. That is just but one small example.
22 So we are left with, I guess, what is it that
23 the Prosecutor wants to do that doesn't shift the
24 burden of proof and the burden of production to us? As
25 I understand his proposition, he would have Your
1 Honours digest this and give the Court some guidance as
2 to what it thinks is necessary, thereby putting the
3 Court in an improper position, or asking us, "Which
4 would you like to have called?"
5 JUDGE MAY: The suggestion, as I understand
6 it, is that you would be asked, or the investigator
7 could be cross-examined, I think is the suggestion, as
8 to what matters are in dispute either in the report or
9 in the dossier; and your having indicated that, a
10 decision would be made, if necessary, by the Trial
11 Chamber as to what witnesses should be called.
12 MR. STEIN: And by whom.
13 JUDGE MAY: Now, is there anything against
14 your being given the dossier, the Trial Chamber having
15 the dossier too, admitting the documentary evidence,
16 subject to any specific argument about it, of course,
17 but generally admitting it, and your responding either
18 to the investigator's report or to the dossier as a
19 whole as to what is challenged and what can be
21 One obvious point which can be made is that
22 there's a lot of work involved in that. But on the
23 other hand, it's what defence counsel have to do in
24 complicated cases.
25 MR. STEIN: We don't have enough to do
1 already, but thank you, Judge.
2 JUDGE MAY: One must expect the Bar to able
3 to carry out those tasks.
4 Now, is there anything in principle which is
5 objectionable to that as a way forward?
6 MR. STEIN: It depends how it plays itself
7 out as to the witnesses and who will call them, because
8 what I think you're saying is exactly my concern. It
9 shifts the burden of production and the burden of proof
10 to someone. We haven't determined who.
11 In other words, if we look at the dossier,
12 agree to the maps, agree to the charts, but we
13 say, "Uh-uh, the witnesses" -- I gather the procedure
14 turns to us to say why, what issues, and to convince
15 the Court to order the Prosecutor to produce. Well,
16 that shifts the burden to us to explain why they're
17 necessary. So it's a shifting burden not only of proof
18 but production, because then the next question is --
19 JUDGE MAY: Another way to put it more
20 neutrally, there is no burden. What it is is a
21 responsibility to clarify the issues, to make it plain
22 what the issues are, in order that it can be determined
23 what evidence should be called.
24 MR. STEIN: There are two ways of approaching
25 that. There are a number of ways. The first is to
1 read our pleadings, our briefs. Those lay out the
2 issue. The second, of course, is what Your Honours
3 have been happily doing to us with each witness, and
4 we've been responding when we can. There are times we
5 cannot, for a variety of reasons. But when we can,
6 we'll be glad to do that.
7 Certainly the dossier, which has worked for
8 them as well, although they have 150 investigators and
9 we have us, would perhaps be an exercise that, as to
10 some things, would result in agreement and would result
11 as to narrowing the issues. But there are multiple
12 issues in this case besides the responsibility of
13 Mr. Kordic for the allegations charged.
14 Remember, the case starts with an indictment
15 that's a big indictment. That's not our fault. It
16 covers two or three years and beyond, given the state
17 of the evidence. Again, not our fault. It's what they
18 brought, and we have to deal with it as we can. There
19 are times when we bear the mantle of a defence that
20 isn't ours to bear, as we talked about several days
22 As I told Judge Robinson, our position is we
23 had nothing to do with one of the villages.
24 Nonetheless, I would be derelict in duty without
25 pointing out that trials in this very courthouse have
1 shown that there was a very, very severe defence in
2 that particular case, for that particular village, the
3 defence of that village, and it was well defended.
4 So there are issues that, unfortunately, we
5 bear which we don't particularly want to. That is what
6 creates the problem, but still, I'm trying to deal
7 pragmatically. If we had a book with items in it, yes,
8 it would force the issue on which we could accept and
9 which we can't. We're going to present that same book
10 to the Prosecutor, in the sense that we will be
11 presenting him with proposed stipulations, et cetera.
12 However, I want you, if you don't mind, to
13 think this through one more time. When we go to our
14 defence, theoretically, we could put also a book like
15 this together and say to the Prosecutor, "Accept or
17 I think the rubber meets the road on the
18 investigator's conclusion. Is this report, when you
19 read it, a mere chronicling of the events set forth in
20 the book? Well, yes, it is. And it is a chronicling
21 of not the documents but of the witness statements.
22 The citations, just like a legal brief, cite to the
23 words of the victims, of the witnesses, of the
24 percipient witnesses. When you try to go beyond that
25 into the statements themselves, you're often at the
1 problem we will have throughout this case: What level
2 are we talking about, in terms of knowledge;
3 first-hand, second-hand, third-hand, rumour?
4 But when you put a witness like this on, you
5 also get to the issue of this person's ability to tell
6 you correctly what's in here, what's in the book. Now,
7 if it's a straight reading of the book, you don't need
8 anybody to tell you. If indeed you want to find out
9 what this is all about, simply read everything here.
10 You can come to the same or different conclusions.
11 This is not a person who was taking the witness
12 statements or who apparently was there. But if we get
13 to the cross-examination of this human being, we put
14 another filter in. We put another filter in.
15 I'm going to ask a lot of questions about the
16 investigators and their work, so no matter how we get
17 around the issue, we go back to the statements of
18 witnesses. How will they be used? Will they be
19 sanitised or filtered through someone like this and
20 never heard of again or will they ultimately be
21 called? If they're going to be ultimately called, why
22 are we spending precious moments going through this?
23 JUDGE BENNOUNA: (Interpretation) No, no,
24 Mr. Stein. You, yourself, have said things now, you
25 are replying to your own questions. You said, in
1 principle, this is a chronicle of events that is
2 contained in the report. You know, yourself, that much
3 of the testimony which we have heard consists to a
4 major part of chronicles of events, and then the second
5 line is the link to the accused.
6 Regarding the chronicle of events, even in
7 your cross-examination, most often you admit the event,
8 because that has to do with the chronicle of events.
9 You said there is, indeed, a whole part relating events
10 in Tulica; we're going to have one on Kiseljak, Zenica,
11 Travnik, and so on, a certain number of villages where
12 things happened. There were incidents there which led
13 to confrontation and which evolved in such-and-such
15 There are certain things we may agree on, as
16 you know very well, and those things, there should be
17 no problem over them. We are not trying to shift the
18 burden of proof on the Defence, as you said, not at
19 all. You just said it's a chronicle of events, and
20 that is a problem for us. You can tell us what the
21 problem is. That is where we are at the moment. As
22 you know, as my colleague, Judge May has just said,
23 this is an extremely complex case. There is no doubt
24 that these reports require a great deal of work; that
25 is true. But it is a work to be done, instead of
1 hearing the witness in the courtroom, in the presence
2 of the whole Defence team, the whole Prosecution team,
3 the judges, telling us things which we find in the
4 document, and we don't need him. It is this level,
5 that we don't need him to repeat that, or even several
6 witnesses, to repeat the same thing.
7 If there is something in dispute in relation
8 to the accused you are defending and which you consider
9 to be unjust or prejudicial, then you will tell us that
10 cannot pass, and the Prosecution must produce a witness
11 and produce evidence, including a cross-examination.
12 I don't know if I was clear enough.
13 MR. STEIN: I think you were clear, and I
14 think there were two issues subsumed. First is a
15 chronological series of facts. If this document sets
16 forth a chronological series of facts, as, quote, "It
17 is alleged that the HVO attacked on April 16th at
18 such-and-such a time from such-and-such an area; it is
19 further claimed there was shelling," et cetera,
20 et cetera, laying out their position without putting it
21 to a source, then we could read it, we all could read
22 it in a nonprejudicial way and say, "Agreed, disagreed,
23 agreed, disagreed, agreed, disagreed."
24 But this doesn't do that. This says that the
25 witness claims "X" and the witness claims "Y." So
1 perhaps the first suggestion, if we go are to go down
2 this road, is to put this in a neutral way, thereby
3 resolving the chronology issue that Your Honour
5 That brings us to the second issue that
6 Judge May suggests; that is, if you go through the
7 chronology in a neutral way, the Defence can say, "Yes,
8 no, yes, no," and move on. That may be a practical
10 The third thing, however, that Your Honour
11 has to understand is, and I'm sure Your Honour does
12 understand, that there still are predicate offences
13 that need to be set out. There are still predicate
14 acts that need to be proven. That needs to be done,
15 and in some instances has not yet been done, without us
16 agreeing or disagreeing. That, essentially, is asking
17 us to stipulate to an element of offence or predicate
18 acts, which we cannot do.
19 Of course, my colleagues want me to remind
20 you again, because Your Honour always talks about the
21 search for truth, and this is the most important part,
22 even people of good faith -- witnesses, investigators
23 -- all human beings filter events through
24 differently. Some are more accurate than others; some
25 use collective knowledge; some think they hear things.
1 In this case, we have had, in three or four instances,
2 the best example of that, where members of the
3 Prosecution having formed, proofed, whatever the term
4 is, spoken with witnesses who are here to give their
5 evidence, gone through the statements, come in with
6 summaries showing exactly what they say the witness is
7 going to say, proffers. And when the witness is
8 actually here, without any cross-examination, but in
9 the mere atmosphere of the courtroom, under oath, the
10 proffer differs from the proof. We had that today.
11 We've had that several other times. One of my
12 colleagues was frankly shocked and surprised, which has
13 evolved into an ongoing debate we've been having in the
14 five minutes allowed to us between witnesses.
15 That's the nature of human experience,
16 encompassed by the rules of confrontation and
17 cross-examination. In the mere confrontation, the
18 witness changed his story. In the cross-examination,
19 we can bring to you our theory. Not every witness is
20 going to be asked about communist Yugoslavia and the
21 teachings of brotherhood and brotherly love. We've
22 done that. That makes a point, and it's important for
23 a point later in the case, with the witnesses about to
24 be called. So we are also judging from our
25 perspective, as the case unfolds, what we have to
1 repeat and what we can ignore.
2 I hope I've answered Your Honour's questions
3 and made myself clear. We're not afraid, when we can,
4 to agree. There are times we can, there are times we
5 cannot, and there are times we can agree to novel and
6 creative ideas. We will be presenting things to the
7 Prosecution shortly.
8 But it's not our fault. We are here because
9 the Prosecution chooses to bring Mr. Kordic here and
10 chooses to do so in a large indictment, with a large
11 period of time. Your Honours have been very
12 clear: "Put your best proof on. Do it before
13 December. The case should be over by then." And with
14 60 witnesses or so, it should be, particularly given
15 the methodology which we have used, which we fought
16 against, but I can see the efficacy of it, and it has
17 worked because it narrowed the presentation.
18 So I must say, with all due respect, that if
19 I understand this, as set out in the Prosecutor's
20 briefs, I wouldn't repeat it, it violates all the
21 principles we talked to relative to the witness
22 statements. If I don't understand it, and the witness
23 statements are merely just thrown in for some reason,
24 then let's really make it in a benign way, and don't
25 allow the non-percipient witness to opine as to what
1 the witnesses specifically would say. That leads to,
2 "By the way, did you believe them or not?" And that
3 has no place.
4 Make it a pure, neutral chronology for
5 guidance of the Court. That's a wholly different
6 animal. If this were a neutral statement of what the
7 Prosecution plans to prove, and it did not contain the
8 witness statements or the repetitious testimony, I
9 think it would be fine.
10 JUDGE MAY: At some stage I would like to
11 hear the Defence on the admissibility of the
12 transcripts, not the witness statements, but the
13 transcripts. But it may be that Mr. Kovacic would like
14 to say something.
15 MR. KOVACIC: (Interpretation) Your Honours,
16 it is a bit difficult to coordinate, because of course
17 in certain points, our positions converge or sometimes
18 are identical, so I need to drop certain things and
19 then add certain things, but I'll try to be very
21 The entire debate here, which has been
22 ongoing for weeks now, is to a large extent the result
23 of the fact that both the Chamber and both parties are
24 facing very voluminous material, and a process of
25 sifting through it, which can be very long, and I'm not
1 sure whether it is humanly possible to go through this
2 material in a rational way.
3 During the preparation for this discussion,
4 and it is not my intention (sic) what somebody did or
5 did not do -- I still need to point out something. In
6 the course of the preparation for this discussion, even
7 we who come from a different legal background to this
8 trial, we believe that through the system of
9 stipulations, we could achieve certain results, results
10 which could essentially not only speed up the process
11 but even resolve certain things as undisputed, so that
12 we would not waste any time, as you rightly pointed
14 However, this possibility vanished very
15 quickly, and I believe that there are two reasons for
16 it. First, because the Prosecution was late in
17 producing the material which it was to discover to the
18 Defence. I am afraid that this process continues, it
19 still trickles on, even though we had a large volume of
20 material which has been produced since -- especially in
21 March, and then it started trickling down in April, and
22 now it's really come down to a drip in May.
23 The Defence itself was limited in its
24 discussion over the stipulations. These stipulations,
25 in my understanding, they're not in my system, but I
1 think that they are a well-tested system, with its own
2 rules, and the parties are fully aware of where they're
3 going with them, and we do not run the risk of entering
4 some area which is uncharted and which would cause us
5 to cause problems of which we would become aware only
6 after we have gone far down that road.
7 Like, for instance, the summaries with which
8 we started working. At first I thought them to be
9 really promising, but today, looking at them, I'm not
10 sure that we've saved so much time. However, this is
11 my view, but let me go back to the stipulations.
12 The Prosecutor proposed to the Defence, and I
13 believe that the initiative, that is, it was their
14 burden, or at the very least, it should have been their
15 burden, because the Defence was not in a position to do
16 so, with all good faith. The Prosecution only sent two
17 proposals for stipulations very shortly before the
18 trial, before the session, and so the Defence was not
19 able to really study them well. The first time, it was
20 37, out of which we were able to accept 7. And we said
21 that if certain characterisations of certain facts
22 would be admitted, that a number of other stipulations
23 would have been acceptable to us.
24 After that, the Prosecution made no effort to
25 make any improvements which would produce further
1 results, so that's where the matter remained. Nobody
2 came back to it and said, "Well, let's go into these
3 remaining 30 points and try to sort them out."
4 Then, the second time we again received some
5 proposed stipulation, this time the Prosecution called
6 it "Second Invitation to Admit Facts," this was
7 sometime in March, I think that it was around that
8 time. This was, again, voluminous material. This came
9 at a time when we were still receiving discovery, and
10 at that time, I, myself, and our Defence, responded.
11 Seventy-five points offered for stipulation
12 by the Prosecution have nothing to do with the charges
13 contained in the indictment against Mario Cerkez. In
14 other words, I did not see any need for our Defence to
15 respond to them.
16 Only 48 points out of this second proposal
17 referred to my client. Out of them, we accepted 11,
18 which is about 25 per cent. That is, we accepted them,
19 providing that very small details be omitted, and let
20 me give you a very small example, without trying to
21 waste much of your time. We said at one point, where
22 the stipulation has to do with the description of the
23 town of Vitez, which is one of the key issues for my
24 client, we said we did not object, but proposed the
25 following: We only asked that the word "geographic
1 coordinates" be omitted simply because we did not know
2 what this system meant. In legal terms, it is
3 completely insignificant.
4 Then we also proposed that the location
5 proposed in the stipulation, that is, a part of town
6 called Stari Vitez, or Old Vitez, we proposed -- part
7 of which is Mahala, this is what we wanted to be
8 included, and the Prosecution never responded to that.
9 So that was within those 11 points to which we
10 potentially agreed. In other words, we wanted very,
11 very small amendments to it, and we could have agreed
12 on those. In three points, we had more significant
13 changes, but I don't want to belabour the point. We
14 were ready to accept those as well.
15 I believe that it would be much more
16 efficient for the parties if we would follow the tried
17 and true methods rather than enter into experimenting.
18 I am always prepared to experiment, but I'm
19 not very optimistic about our ability to accept it, and
20 I believe that eventually we will all realise that we
21 have wasted more time than was necessary. If the
22 discovery has been completed and I'm still not fully
23 convinced of that, then we could turn to and focus on
24 the stipulations. Also, the method of summaries which
25 is being tried here, I believe, in a way, did not play
1 the role it was meant to play. Even though we are
2 receiving them a couple of hours, and more recently, up
3 to a day and half before the testimony, then it is hard
4 for us to respond to them.
5 I believe that the first four or five points,
6 which is the background of the witness, the date of
7 birth, place of birth, and his education, I think we
8 can always stipulate. That is perhaps not such a big
9 savings of time, because it may have taken only five to
10 seven minutes of the total testimony, but if we have
11 100 witnesses, then it would add up to something.
12 But I would like to second the Defence of
13 Dario Kordic. I am opposed to the dossiers, and I'm
14 not going to -- I just second the arguments, but I
15 think that the Trial Chamber should try to oblige the
16 Prosecution to implement the Rules of the Tribunal
17 which it has set out, and which would not in any
18 conflict with the Rules of Procedure and Evidence and
19 general principles and rules in the international
20 conventions and the two legal systems which we are
21 trying to merge here.
22 We are available to any further questions
23 that you may have regarding the civil law system. Some
24 of the characteristics of the civil law system are not
25 being presented here in a way that I agree with, and we
1 all know that the systems vary from country to country,
2 from jurisdiction to jurisdiction, and I don't think
3 that the complete information has been made available
4 about these changes. And if we follow the temporare
5 criminus, which is the principle used in Bosnia and is
6 not being used in the French jurisdiction, I think that
7 we would go into different kinds of interpretations.
8 But I will not belabour the point, and this is all I
9 have to say now.
10 JUDGE MAY: Is there anything you would like
11 to say about the admissibility, Mr. Kovacic, of the
12 transcripts of witnesses who have given evidence in
13 other proceedings?
14 MR. KOVACIC: (Interpretation) As I said,
15 Mr. President, I associate myself with the proposal
16 made by the Kordic Defence team, the last point made by
17 Mr. Stein, a testimony given in this Court in other
18 cases. In this Tribunal, we are always ready to
19 consider them, but we believe that they should be
20 tendered into evidence in accordance with Rule 89(C) of
21 the Rules as documentary material, as documentary
22 evidence. That seems to me to be the most reasonable
23 and closest to the Rules.
24 If we decide to act on a case-by-case basis,
25 to judge whether it is acceptable to accept those
1 transcripts as evidence, all that I'm interested in is
2 whether the cross-examination covered at least the
3 questions that I would be prone to ask.
4 I will be quite frank, Your Honours. For
5 example, if we are talking about testimony from the
6 Blaskic case -- I'm using it as an example -- then I
7 believe that in most cases, the cross-examination
8 conducted by the Defence team in that case, if not
9 being identical to ours, is very close to ours, in any
10 case. There may be cases where we might have an even
11 more specific need, but I think there is ample scope
12 for this. I don't think that the admission of those
13 transcripts, especially as documentary evidence, could
14 cause us any great damage. But with some reservation,
15 because in the case of some witnesses, we would have to
16 go a little deeper than the Blaskic Defence did.
17 As for others, it is difficult for me to
18 commit myself in advance, but those would be our
20 MR. STEIN: Mr. Sayers addressed this issue
21 the other day. I have little to add. It is our
22 position, and Your Honour certainly knows the case,
23 that if there is exceptional need and equality of arms,
24 and there is a full opportunity to cross-examine, as
25 set forth in Aleksovski, then it is certainly an issue
1 worth considering.
2 JUDGE MAY: Yes, Mr. Nice.
3 Yes, Mr. Nice, if you could clarify your
4 proposal in the light of the argument, we would be
6 MR. NICE: Yes, and I can be quite brief, but
7 what I would like to do is to offer Mr. Dixon to deal
8 with the Covenant, if there are any questions that
9 remain unanswered beyond the paper that I submitted
10 this morning with the attached excerpt from the
11 textbook, as Mr. Dixon is more familiar with those
12 authorities than I am, and indeed, he very helpfully
13 drafted that paper. And Mr. Lopez-Terres will be
14 available to deal with any issues arising from the
15 French jurisdiction.
16 I have to say, having heard the discussion
17 this afternoon, it is interesting, when one detaches
18 oneself from the facts of this case, it is interesting
19 to see different disciplines being reflected in the
20 arguments that we must all make.
21 Can I say that the upshot of the position on
22 behalf of Kordic plainly is that unless they are
23 compelled otherwise, they will only admit something if
24 it is proved by evidence.
25 Can I ask that the ELMO be turned on, please,
1 just for a -- the easiest way of getting at it.
2 Mr. Stein was saying very recently that had
3 they been served a neutral statement as to the history
4 of what happened in Tulica, things might have been
5 different. The statement before you, which can be read
6 in about one minute, and which summarises,
7 chronologically and neutrally, the position in relation
8 to Tulica, was served in this form on the Defence in
9 the autumn, but not the autumn of 1998. It was served,
10 with all supporting materials then available, on the
11 Defence, so therefore available to successor
12 defendants, in the autumn of 1997.
13 Those statements must, by conscientious
14 defenders, have been considered and prepared so that
15 when an invitation to admit was served in February of
16 this year, if what Mr. Stein says about the general
17 acceptability of a neutral statement is an accurate
18 reflection of the long-term intentions of these
19 defendants, why then, either the entire one-minute
20 summary could have been agreed. Alternatively, it
21 could have been agreed but for identified exclusions,
22 which would have pointed the Prosecution immediately to
23 whatever witnesses it was necessary for us to call, and
24 we wouldn't be here now.
25 The reality is -- and Mr. Stein, I think,
1 candidly gives away the truth of the approach that they
2 are obliged or choose to take when he says "let's find
3 it," that as to predicate facts, they are not in a
4 position to make admissions as to those. By that, of
5 course, he means the on-the-ground crimes. Forget
6 their immediate connection to Kordic. They are not in
7 a position to admit any on-the-ground crimes.
8 That is where the role of the Chamber has
9 become essential. We have done, by successive requests
10 for cooperation, everything that we can think of, and
11 we've run out of ideas, which is why we turned to look
12 more broadly at legal systems that might help us.
13 They may not be in a position -- because of
14 their instructions from their client, or for some other
15 reason, or simply because that is the United States
16 way, to put everything in issue and hope that the
17 witnesses won't be available or won't come up to prove
18 -- but if they admit nothing, then it is open to this
19 Trial Chamber, under its Rules -- 73 bis (F) and 90(G)
20 are but two examples of your powers to require
21 admissions and to control the form of questioning. It
22 is up to you.
23 73 bis (F) refers to the pre-trial
24 conference, but it must be, by implication, a power
25 available to the Trial Chamber generally to require of
1 the Defence a statement of admitted facts, and it can
2 deal with it by saying: "Which of these facts is
3 admitted and which not?"
4 90(G) is one we're well familiar with,
5 exercise control over the mode and order of
6 interrogating witnesses and presenting evidence so as
7 to, (1), make the interrogation and presentation
8 effective for the ascertainment of the truth and, (b),
9 to avoid the needless consumption of time, and it must
10 be open for the Chamber to do that which we can't do,
11 which is to say to the Defence, "Right. You've now got
12 a narrative of what the statements show happened in
13 Tulica. Paragraph 1, is there anything in there that
14 is challenged, because if it isn't, we will take as
15 read the supporting material. If it is and if there
16 are good grounds for it being in issue, then of course
17 the witnesses will have to be called. Of course, if
18 that means that a lot of witnesses have to be called,
19 then that is what will follow."
20 We venture to suspect and therefore to
21 suggest, as it may be Judge Bennouna had in mind in
22 his, it seemed to us, accurate encapsulation of what we
23 were intending, that very little will in fact be in
24 issue, and what you are facing is a Defence approach
25 that regards as legitimate, and indeed in some
1 jurisdictions is legitimate, the policy of saying,
2 "Everything in issue. Prove it if you can."
3 Appropriate for a shoplifting case, appropriate for a
4 serious crime with a local witness base, and the
5 potential to get all the witnesses necessary to court
6 in a reasonable period of time, if that is what the
7 local jurisdiction accepts as reasonable.
8 Inappropriate here and, as we know from how I have, I
9 hope, accurately summarised, for example, the French
10 system, inappropriate there, because although, yes,
11 there is of course the general expectation that
12 important matters will be dealt with by live evidence,
13 subject to questioning by the Prosecutor, by the Court,
14 and by or on behalf of the defendant, there is the
15 supervisory power first of the investigating judge,
16 then of the Trial Chamber, to say, "No, that issue is
17 not one upon which we actually need to go beyond the
18 printed material we have."
19 JUDGE MAY: Mr. Nice, we are going past the
20 time which we normally have a break at. I understand
21 you won't be very much longer.
22 MR. NICE: I shouldn't think so, no. I've
23 got a number of notes, but I can probably, if you'll
24 give me a chance at some stage just to read them to
25 make sure I don't miss anything, I probably won't have
1 very much more to say. But it may be that the Chamber
2 will want to hear from Mr. Dixon or, indeed, from
3 Mr. Lopez-Terres, because I think that on this matter,
4 the different approaches certainly have helped me and
5 may help you.
6 (Trial Chamber confers)
7 JUDGE MAY: Well, provided the interpreters
8 are agreeable, we'll sit for another 20 minutes to
9 finish this argument.
10 MR. NICE: Thank you.
11 Can I respectfully remind the Chamber that in
12 our original printed argument of a couple of weeks ago,
13 there were only two passages that were highlighted both
14 by the line at the side and in bold type. One was that
15 the Chamber can decide which providers of statements
16 should be called to the witness box and which can be
17 read, and the second was that it was not for the
18 Defence but for the Chamber to decide which statements
19 should be read.
20 JUDGE MAY: Well, of course that's so. But I
21 want to understand how you see us or how you're asking
22 us to proceed now.
23 MR. NICE: We are asking you to proceed --
24 I'm so sorry, perhaps I --
25 JUDGE MAY: Can I just clarify it in my own
1 mind to see if I'm getting it right? You are asking
2 us, as it were, if we were to make an order, it would
3 be that the dossier is served upon the Defence.
4 MR. NICE: Yes.
5 JUDGE MAY: That within a certain time, the
6 Defence are to indicate what matters are in dispute,
7 what documents are in dispute, and what is in dispute
8 in relation to the, I suppose, the overview, you would
9 say, or the Tulica report, effectively to plead to the
11 MR. NICE: Effectively so, and of course they
12 would have the opportunity of questioning an officer.
13 Judge Bennouna gave some examples of the sort
14 of questions that might be asked, and I think I gave
15 some other ones on an earlier occasion, but those
16 questions could aid them in their representations as to
17 which witnesses should be called or which matters were
18 truly in dispute. They would then be able to make
19 representations about what matters are in dispute and
20 what witnesses should be called, and in that way issues
21 would become clarified, and we could then call, subject
22 to our own ability to do so, the witnesses who would be
24 JUDGE MAY: The point was made that this may
25 take longer than simply calling one or two witnesses in
1 relation to each village.
2 MR. NICE: I dare say that's possible if it
3 were only one or two witnesses in relation to each
4 village. But our duty is to present evidence for the
5 entire crime base of this indictment. That's, at the
6 moment, something in excess of 170 witnesses. We can't
7 proceed on the basis of two or any other random number
8 of witnesses per village unless we know what is in
9 dispute and what is admitted.
10 JUDGE MAY: I agree with that, but our duty
11 is to make sure that this case remains within bounds,
12 and I wouldn't regard the calling of 170 witnesses as
13 being within the bounds.
14 MR. NICE: Of course, but we can't do any
15 more. We've served, as I've said, the document I've
16 shown you, which is exactly the document Mr. Stein now
17 says he would have liked to have had. That drew
18 nothing, except for Mr. Kovacic, he made some replies,
19 but of course unilaterally they don't enable us to do
20 anything because we have to have replies from both,
21 effectively, and --
22 JUDGE MAY: You're not then at the moment
23 asking us, as might have been the original suggestion,
24 to admit the dossier, call the investigator and admit
25 the dossier?
1 MR. NICE: Not wholesale, no, that hasn't
2 been our position. It wasn't our stated position in
3 our paper. Of course, the effect of this is, by one
4 route or another, that what is not in issue becomes
5 evidence in the case. Whether because it's an
6 admission, an agreement, stipulation, or the reading of
7 hearsay doesn't much matter, but that comes to be
8 evidence in the case. But it comes to be evidence in
9 the case under the supervision of the Chamber, which is
10 reflecting all its various duties, and I believe, and
11 Mr. Lopez-Terres will correct me if I get this wrong,
12 that, for example, in the French system, included in
13 the duties of the Court to which it must pay regard is
14 the good administration of justice, a reflection in our
15 Statute and Rules being the avoidance of the
16 unnecessary wasting of time.
17 We can't achieve it in any other way. We
18 suspect most of these issues aren't in dispute. This
19 is our way of ensuring that matters not in dispute
20 aren't the subject of needless testimony from witnesses
21 summoned here hundreds of miles.
22 JUDGE MAY: So would you invite us to make an
23 order in relation to the Tulica dossier --
24 MR. NICE: Yes.
25 JUDGE MAY: -- which we have, and the report?
1 MR. NICE: Certainly, and we would invite
2 leave to be given to call the witness, in due course,
3 who will be able to answer questions.
4 JUDGE MAY: Well, is there any point calling
5 the witness?
6 MR. NICE: That would be a matter for the
7 Defence. They might well have questions to ask him,
8 and Mr. Stein has said that he wants to ask questions
9 of the takers of witness statements as to the methods.
10 I add a quick parenthesis. First of all,
11 there's no problem with statements other than those
12 served by us, because of course if the investigator is
13 called and there's a flatly contradictory statement
14 from a witness or a statement from a witness flatly
15 contradictory in part, that's exactly the purpose to
16 which the cross-examination of the officer could be
17 put, and that would no doubt help the Chamber resolving
18 issue. So that's not a problem.
19 It might well be that the witness could be
20 helpful to the Defence for that very purpose. He would
21 otherwise be arguably essential, because his narrative
22 could be the means by which the uncontested parts of
23 the dossier become public evidence in the case, thereby
24 to conform with that part of the principle of orality
25 in some systems which, as I understand it, requires
1 that things are at least public and not read
3 JUDGE MAY: As far as the transcripts are
4 concerned, do you invite us to admit them or consider
5 admitting them?
6 MR. NICE: Certainly, yes. Well, both
7 transcripts and statements probably fall within the
8 potential for admission as hearsay under the Tribunal's
9 general rules in any event, subject to the rules of
11 JUDGE MAY: There is a distinction.
12 MR. NICE: There's a distinction in type.
13 I'll have another word to say about that just in a
14 minute. But at this stage, it would be perhaps
15 sufficient to order the admissibility of the
16 transcripts, putting on hold for later decision
17 statements, because the Court would want to hear the
18 particular representations of the Defence about
19 particular statements when they've considered the
20 dossier more fully.
21 JUDGE MAY: Yes. If a witness had refused to
22 come, then there is force in the argument there would
23 be a way of trying to get the evidence in in the
24 witness's absence.
25 MR. NICE: Yes, and as to the particular
1 witness who at the moment is unwilling to come, we have
2 of course notified the Defence. We will make further
3 efforts in relation to that witness. Well, there it
5 As to unwilling, dead witnesses, witnesses
6 who may be kept out of the presence of the Court
7 through fear, they may be wholly separate issues for
8 another day. But at this stage, yes, an unwilling
9 witness, I suppose, has a certain characteristic that
10 the Defence would rely on.
11 Can I just say this, because this
12 may conceivably help my friends from the United States
13 opposite and may also just interest Judge Bennouna.
14 Of course, in other jurisdictions there is
15 now a presumption, even in criminal cases, that
16 statements taken by investigators will become the
17 evidence in the case, subject to the Defence making the
18 active request to the Trial Chamber that they be called
19 to give evidence live, and those witness statements
20 have preambles not significantly different from the
21 preamble to the ICTY statements. But they are
22 different to this extent, that there is no penal clause
23 on the ICTY statements because, of course, our Statute
24 doesn't yet allow the Chamber to penalise witnesses
25 who, in statements, say things that are subsequently
1 found to be inaccurate when the statement is tendered
2 into evidence. But that's a matter of the Rules and
3 the Regulations. The statements are otherwise very
4 similar to statements that are tendered in other
5 countries and are expected to be evidence of their
7 I hope I'll be forgiven for letting out this
8 much of a trade secret. Mr. Lopez-Terres, in wondering
9 why in our institution investigators don't do that
10 which is done in other jurisdictions, namely, to take
11 witness statements on oath, which would then, I think,
12 satisfy some of the concerns of civil practitioners,
13 has been told, "Well, it's not something that's done in
14 America," all of which goes to show that melding
15 different jurisdictions is difficult. Learning about
16 other people's practices and different understandings,
17 it helps, but we've got to get on with this practical
18 problem, and the practical problem is without the
19 intervention of the Trial Chamber, we will just have to
20 call as many witnesses as we are allowed or judge
21 necessary to prove the entire crime base in the
22 indictment. We believe that that's not necessary and
23 that this alternative method will save time and will
24 save a lot of witnesses having to come here.
25 JUDGE ROBINSON: Mr. Nice, just let me see if
1 I have it right. The dossier is presented to the
2 Defence with a view to their identifying contentious
3 areas, and that is subject to the Court deciding
4 overall on the witnesses that will be called. Those
5 witnesses whom the Court has not decided should be
6 called, is it their statements nonetheless remain to be
7 read into evidence? Is that it?
8 MR. NICE: That is indeed our position,
9 either read into evidence or in some other way they
10 become evidence, but probably to --
11 JUDGE ROBINSON: So reliance can be put on it
12 in determination of guilt?
13 MR. NICE: Absolutely.
14 MR. STEIN: And that's what I took to be the
16 MR. NICE: Well, on this case I managed to
17 bridge the cultural divide and make myself clear.
18 JUDGE MAY: Mr. Nice, if you could finish in
19 a minute or two, please.
20 MR. NICE: I think I'm finished, but it's
21 probably more important, because we have the specific
22 questions from Judge Robinson about the covenant, to
23 just check whether there's anything outstanding on that
24 that Mr. Dixon can help with. I don't know if there
1 I think I've finished. May I just check my
3 Yes. I don't know if the Court has
4 immediately to hand or to its mind the different
5 formulae of statements. I have had some prepared as
6 samples, should you be interested.
7 There's the type of statement that was, I
8 think, typically taken by AID and typically taken from
9 witnesses, for example, coming out of refugee camps. I
10 think that's a fairly typical example. Those certainly
11 end with a declaration that, "The statement is not made
12 under duress, read to me," and confirmed it is the
13 statement and signed in a fairly formal way. The ICTY
14 statement headings you'll be familiar with, and there's
15 a third category of witness statement not included in
16 this particular binder at the moment, but these are
17 statements taken, for example, at the High Court in
18 Zenica, which are captioned with the articles under
19 which the statement is taken. They set out the
20 understanding of the witness that there are penal
21 consequences for giving false testimony, and indeed the
22 very body of the statement begins with the witness's
23 understanding that he has been warned to tell the
24 truth, and then there are the formalities of signature
25 at the end.
1 So inevitably statements come with a range of
2 captions as to their truth, but it is worth noting that
3 the extreme language hitherto used by the Defence about
4 effectively the bad faith of the taking of witness
5 statements has now been dropped explicitly, and it is
6 frankly absurd to say the witness statements would be
7 taken in any general way in bad faith or with a desire
8 to slant, so at least that allegation is gone.
9 I can make these sample copy statements
10 available. They have to be considered along with the
11 ICTY statements.
12 JUDGE ROBINSON: Mr. Nice, if the Chamber is
13 being given this inquisitorial rule, why not just have
14 a cutoff point, that the witnesses that the Chamber has
15 identified or the providers of statements identified by
16 the Chamber?
17 MR. NICE: That's, of course, certainly a
18 possible solution, but I suspect that that would hand
19 back the power to control these proceedings to the
20 Defence, because if they could make absolutely no
21 admissions and were not prepared to admit things
22 because they are not prepared to admit the predicate
23 offences, then the Chamber would be left with the same
24 difficult position of having either to decide to call a
25 very large number of witnesses, because in fact a large
1 number of witnesses will be required or would be
2 required to prove all the predicate offences, or
3 alternatively it would simply and arbitrarily be
4 cutting off some of the alleged offences. Although
5 this is a long indictment, it's not amorphous or
6 anything like that, it's an indictment that's large
7 because of the activities of the people with whom we
8 are generally concerned, and it's been confirmed.
9 I hope you won't think this impertinent.
10 Allow me to make this response to, I think, an
11 observation of Judge May on the last occasion when he
12 said, "Well, isn't the robust approach to take just a
13 couple of your best witnesses," and the answer to that
14 is sometimes that's all right where the two witnesses
15 do cover all the territory. I've dealt with the fact
16 that they might not.
17 I'm probably going too fast.
18 The second thing is taking just a couple of
19 the witnesses is a little bit like playing limited
20 overs as opposed to the real thing, or five a side,
21 which is why I've said from the beginning our concern
22 is that you should have access to the fullest
23 information to get the right results, and this is a
24 means of resolving how you get access to it.
25 JUDGE ROBINSON: You know, it's a very
1 difficult issue, and the difficulty for me personally
2 is that I start from the position that it is for the
3 Prosecutor to manage the case. But in this arena, of
4 course that has to be considered subject to the wider
5 rule of the Chamber to ensure the most effective
6 administration of justice. But essentially my position
7 is that it is the Prosecutor who knows her case best
8 and should determine her witnesses.
9 MR. NICE: With that I entirely agree. I
10 come from the same position.
11 You will recall that the way I outlined our
12 plan, and indeed I outlined it earlier in
13 correspondence to the defendants, was, "I will call a
14 couple of witnesses per locality, because by your
15 cross-examination, you should then have narrowed the
16 issues, and that will save me having to call many more
17 witnesses." That was a correspondence approach. The
18 admissions approach was part of the same strategy, and
19 it's only because that has borne no fruit and I face a
20 Chamber that is saying, and I understand why, "But this
21 is all going to be too long," that we find ourselves in
22 this position.
23 I'm quite happy to go back simply to calling
24 witnesses, but then I can't guarantee an early closure
1 JUDGE MAY: Thank you, Mr. Nice.
2 Mr. Stein, we've heard you once.
3 MR. STEIN: It was worth a try.
4 JUDGE MAY: Well, these are matters which
5 will take time for consideration. We will consider
6 them, and we will give you our decision in due course.
7 --- Whereupon the hearing adjourned at
8 4.28 p.m., to be reconvened on
9 Friday, the 18th day of June, 1999,
10 at 9.45 a.m.