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  1. 1 Wednesday, 14th July, 1999

    2 (Open session)

    3 (The accused entered court)

    4 (The witness entered court)

    5 --- Upon commencing at 2.32 p.m.

    6 THE REGISTRAR: Good morning, Your Honours.

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

    8 Kordic and Mario Cerkez.

    9 JUDGE MAY: Mr. McLeod, you remain subject to

    10 the declaration which you made when you were here

    11 before.

    12 THE WITNESS: Yes, Sir.

    13 JUDGE MAY: Yes, Mr. Sayers.


    15 Cross-examined by Mr. Sayers:

    16 Q. Good afternoon, Mr. McLeod. We last met on

    17 May the 14th of this year. On that day, you testified

    18 that you had never heard of something called the

    19 HZ-HB. Do you remember that?

    20 A. Yes, that's correct.

    21 Q. Is that still true today; you still don't

    22 know what it is?

    23 A. No, I've done nothing to refresh my memory

    24 since we last met.

    25 Q. You don't know what the entity is, and you

  2. 1 don't know what position, if any, Mr. Kordic held in

    2 that organisation?

    3 A. No.

    4 Q. We touched briefly, on May the 14th, on your

    5 visit to the area of Ahmici and Vitez on May the 4th.

    6 Did you meet Colonel Stewart and converse with him at

    7 that time?

    8 A. Yes, I did.

    9 Q. He was the commanding officer of the 1st

    10 Cheshire Regiment, I believe.

    11 A. I believe so, sir.

    12 Q. Did he tell you that he had personally seen

    13 30 Croatian civilians or Croat civilians imprisoned in

    14 the silos in the village of Kacuni in conditions which

    15 were freezing cold and revolting?

    16 A. I don't recall that, no.

    17 Q. Did you discuss or have occasion to discuss

    18 with Colonel Stewart at all the kidnapping of Commander

    19 Zivko Totic on the evening of April 15th, 1993, in

    20 Zenica?

    21 A. I don't recall discussing that with Colonel

    22 Stewart, no.

    23 Q. You don't recall any discussion by Colonel

    24 Stewart with the fact that that kidnapping seemed to

    25 him to be an incendiary spot which would caused the

  3. 1 entire Lasva Valley to erupt in conflict?

    2 A. No.

    3 Q. Did he ever express that view to you?

    4 A. I don't recall that, no.

    5 Q. Did he ever express the view that the

    6 kidnapping of this senior Croat officer in a Muslim

    7 stronghold created a terribly volatile atmosphere in

    8 the valley?

    9 A. I don't recall that, no.

    10 Q. Did Colonel Stewart ever discuss with you the

    11 fact that he had personally seen about 1.000 Croats

    12 driven from their homes in the Lasva Valley region as a

    13 result of the fighting in the area?

    14 A. I'm aware that there were a large number of

    15 Croats that had moved from Zenica to Vitez, and Colonel

    16 Stewart was concerned about that. I'm not sure that he

    17 actually discussed the matter precisely with me.

    18 Q. Did he ever express the view to you that he

    19 was of the opinion that Mr. Kordic was not a soldier at

    20 all?

    21 A. No, he didn't.

    22 Q. But you were of the view, and there was no

    23 question in your mind on this subject, that Colonel

    24 Blaskic was the HVO commander of Central Bosnia

    25 Operative Zone and that he was the military commander

  4. 1 in the area on behalf of the HVO while you were present

    2 in the Lasva Valley?

    3 A. Yes.

    4 Q. We discussed it last time, and you had little

    5 recollection on this. I would just like to ask you

    6 whether you've had any refreshed recollection on this

    7 subject.

    8 At page 20 of your notes, contemporaneous

    9 notes, you described a meeting with the Muslim military

    10 commander in Zenica, General Hadzihasanovic, Enver

    11 Hadzihasanovic. Do you remember that?

    12 A. Yes.

    13 Q. He was of the view that it was best to go

    14 slowly. Do you remember putting that in your notes?

    15 A. Yes.

    16 Q. And that he wanted to have the 7th Muslim

    17 Brigade under control rather than not; do you remember

    18 that?

    19 A. Yes.

    20 Q. He told you the Mujahedin were not under his

    21 control at that time, didn't he?

    22 A. Yes.

    23 Q. And that, in fact, they were one of many

    24 elements that were not controlled in the area?

    25 A. Yes.

  5. 1 Q. Do you have any recollection of what those

    2 elements were, Mr. McLeod, the elements that weren't

    3 controlled?

    4 A. No.

    5 Q. All right. We also touched briefly upon a

    6 meeting that you had with Colonel Ramiz Dugalic on

    7 May the 9th. Do you remember that?

    8 A. Yes.

    9 Q. And your notes, at page 55, and I don't know

    10 if you have them before you --

    11 JUDGE MAY: Mr. Sayers, you'll have to remind

    12 me. There was a reference to notes. Now, I don't

    13 think we've got those, have we, or are they in the

    14 exhibits? We got the report which the witness made.

    15 MR. SAYERS: I'm happy to make the notes an

    16 exhibit, and I think we have copies for the Trial

    17 Chamber, although I wasn't anticipating using them

    18 all. I actually have some down in our locker, Your

    19 Honour, but I'm more than happy to make this an exhibit

    20 right now, and I'll distribute them as soon as we have

    21 a break, if I may, if that's convenient.

    22 JUDGE MAY: Yes, very well.

    23 THE REGISTRAR: The document is marked

    24 D40/1.

    25 JUDGE MAY: Has the witness got a copy of the

  6. 1 notes in front of him?

    2 THE WITNESS: I have my original, Sir.

    3 JUDGE MAY: You have. Thank you.

    4 MR. SAYERS:

    5 Q. Mr. McLeod, the copy of your notes that has

    6 been provided to us have numbers up on the top right

    7 hand of the page. Does your copy have those numbers as

    8 well?

    9 A. Yes.

    10 Q. If you would turn to page 55. Do I

    11 understand that this summarises at least part of your

    12 interview with Ramiz Dugalic on May the 9th?

    13 A. Yes.

    14 Q. Now, Mr. Dugalic gave you his view of who had

    15 been responsible for the Ahmici incidents, didn't he?

    16 A. Yes.

    17 Q. In fact, Mr. Dugalic told you that the ABiH

    18 had actually captured two people at Ahmici, did he not?

    19 A. He certainly said that they had, although as

    20 you're aware, I never actually got to see them, which

    21 is the point I think you're going to make.

    22 Q. That's the point I was going to get to, but

    23 since you've covered it, I'll move on.

    24 I believe also that Colonel Blaskic,

    25 according to Mr. Dugalic, anyway, had given the order

  7. 1 to do something. If you would just turn to the next

    2 page, I can't actually read your writing there. It's

    3 no criticism of you, sir, but I just can't make it

    4 out. It says, "Blaskic gave the order" to do

    5 something. Could you just inform the Trial Chamber

    6 what that says?

    7 A. Certainly. Should I put it on the ELMO or

    8 should I simply read it?

    9 Q. I think it would be a good idea to put it on

    10 the ELMO for everybody.

    11 A. So as I indicate, Blaskic gave the order to

    12 put the man in the truck, and Darko Kraljevic carried

    13 out the attack.

    14 Q. Could you just tell us what you meant

    15 by "Blaskic gave the order to put the man or men in the

    16 truck"?

    17 A. He's referring, I think, to an attack on

    18 Stari Vitez that was carried out by driving a truck

    19 into the town. There was certainly an incident which

    20 had taken place with a truck bomb, and that's what he

    21 was referring to.

    22 Q. Thank you.

    23 JUDGE MAY: Just so that we have it in mind,

    24 all this appears in the report. Annex "I" has the

    25 interview with the particular gentleman.

  8. 1 Perhaps I could ask the Prosecution, is there

    2 anything more in the notes than is in the report? Can

    3 you recollect that, Mr. Scott?

    4 MR. SCOTT: Your Honour, my general

    5 recollection would be they are certainly not verbatim,

    6 exact, but I have reviewed them. I can't say I've

    7 reviewed every single word myself, but the pages I have

    8 reviewed tend to follow closely the typed version, and

    9 I think Mr. McLeod has testified, both in this court

    10 and previously, that essentially, when he typed up the

    11 annexes to his report, he essentially sat at a computer

    12 or word processor with his notes and typed them. So I

    13 would say, Your Honour, in most respects, as known to

    14 me, they are extremely similar, but I would hesitate to

    15 say that they are exactly the same.

    16 JUDGE MAY: Very well. Thank you.

    17 Yes, Mr. Sayers.

    18 MR. SAYERS:

    19 Q. I would just like to pick up the pace a

    20 little bit, if I may, Mr. McLeod, so that we can get

    21 your cross-examination completed as soon as possible.

    22 You have been, I believe, the prosecuting

    23 officer at about a dozen courts martial; is that

    24 correct?

    25 A. Yes.

  9. 1 Q. These judicial proceedings have been

    2 conducted exclusively by military judicial authorities,

    3 have they not?

    4 A. Yes.

    5 Q. In all of the proceedings that you've been

    6 involved in, there has not been any involvement by

    7 politicians in the process, has there?

    8 A. No.

    9 Q. You've not ever heard of a situation where

    10 politicians have been obliged somehow to monitor the

    11 progress of military investigations or prosecutions,

    12 have you?

    13 A. We could either have a complicated answer or

    14 a very simple "no," so we'll keep it simple, shall we?

    15 Q. Let's put it this way: In all of the

    16 prosecutions that you've participated in, no politician

    17 has had any kind of duty to make sure that the

    18 progression goes forward; that's a matter purely for

    19 the wheels of military justice, so to speak?

    20 A. To take a slightly more complicated answer,

    21 in that case, in the United Kingdom, military law is

    22 passed by statute, and that's passed by politicians.

    23 So if you like, actually the whole thing is set up by

    24 the politicians in the first place.

    25 Q. No, I see, but the actual administration of

  10. 1 military justice itself is a matter that proceeds

    2 independently of political involvement, doesn't it?

    3 A. Yes.

    4 Q. All right. Now, you referred to the

    5 Vance-Owen Plan in response to a question by

    6 Judge Bennouna, and to the intent to hold elections

    7 after what you refer to as population shifts. Do you

    8 know when the first democratic elections were held in

    9 either the Socialist Federal Republic of

    10 Bosnia-Herzegovina or the Independent Republic of

    11 Bosnia-Herzegovina?

    12 A. No.

    13 Q. And as to these population shifts, insofar as

    14 they involved some Croats in the Zenica area, you

    15 referred, I believe, to the term "self-cleansing"?

    16 A. I recall that I was asked the question, had I

    17 actually heard of the term "self-cleansing" being used,

    18 and I think my answer was no, in practice.

    19 Q. Very well. Then I don't need to spend any

    20 more time on that.

    21 We've gone over, in rather laborious detail,

    22 already, the mass burnings, killings, and plundering of

    23 Croat villages in the Zenica area in your previous

    24 cross-examination and in your report appendices. Are

    25 you familiar with a document that was drafted by the

  11. 1 Special Rapporteur of the Commission on Human Rights,

    2 the United Nations Commission on Human Rights, dated

    3 the 17th of November, 1993?

    4 A. No.

    5 Q. I know that you're not familiar with the

    6 document, but the factual contention is made in this

    7 document that the forces of the government of

    8 Bosnia-Herzegovina had, conservatively, killed about

    9 120 Croat civilians between April and September of

    10 1993. Do you have any reason to disagree with that

    11 figure?

    12 A. None at all.

    13 Q. You testified previously that the HVO

    14 commander in chief in Bosnia-Herzegovina was General

    15 Milivoj Petkovic. Does that name sound familiar?

    16 A. Yes.

    17 Q. Did you ever try to speak with General

    18 Petkovic?

    19 A. No.

    20 Q. Now, just a few questions on the distinction

    21 between the HVO and the HDZ. I believe that you

    22 previously testified that the Croat authorities had

    23 established a military organisation called the HVO and

    24 a political organisation called the HDZ. Is that your

    25 understanding?

  12. 1 A. Yes.

    2 Q. All right. If I may, I'd just like to show

    3 you one exhibit, which is annex II to the trial brief

    4 that has been filed by the Prosecution in this case.

    5 JUDGE MAY: I'm not sure that's an exhibit,

    6 by any standards. What point do you want to make,

    7 Mr. Sayers?

    8 MR. SAYERS: Just that there are a large

    9 quantity of people both -- at the national level whose

    10 offices are identified in the HDZ and in the HVO, Your

    11 Honour, and on the local level, as well, the party

    12 political organisation and the military organisation,

    13 and that Mr. Kordic is only identified as having a role

    14 within the HZ-HB and as a member of the HDZ BiH. He

    15 was not involved at the local, political, or military

    16 level in Busovaca, and he was not involved at the

    17 national military level in the HVO.

    18 JUDGE MAY: Well, you've made that

    19 point. You don't need to make it again. I don't think

    20 it's a suitable one for the witness.

    21 MR. SAYERS: I'll move on, Your Honour.

    22 Q. Just a few final questions, sir. If you had

    23 been given more time, more than the one-week time limit

    24 that was imposed upon you by your superiors at the

    25 ECMM, you would have been able to interview all of

  13. 1 these political figures in Busovaca and Zenica, and the

    2 military figures, too, that you were not able to fit

    3 into your hectic schedule during the week that you were

    4 in the Lasva Valley; isn't that true?

    5 A. Correct.

    6 Q. If you had more than just four and a half

    7 days to do all of your interviews, you would have to

    8 concede that this would have given you a fuller and

    9 more complete understanding of the political and the

    10 military situation in the area, wouldn't it?

    11 A. Certainly.

    12 Q. And as consequence, your report would have

    13 been more complete and thoughtful without that one-week

    14 deadline, wouldn't it?

    15 A. Certainly.

    16 Q. Now, you did your best to make sure that you

    17 used the time available to you to maximum effect, given

    18 the tasks that were imposed upon you, didn't you?

    19 A. Yes.

    20 Q. You made sure that to the maximum extent

    21 possible, you interviewed all of the most important

    22 people in the region?

    23 A. Yes.

    24 Q. Spoke to them about the political and the

    25 military situation and any other items that fell within

  14. 1 your charge?

    2 A. Yes.

    3 Q. And you made sure that you discussed with

    4 these people all of the important events in the past

    5 few months in the Lasva Valley; right?

    6 A. Yes.

    7 Q. You stressed to them that you needed and were

    8 seeking all pertinent information relating to those

    9 events that you could possibly gather and assemble;

    10 isn't that right?

    11 A. Yes.

    12 Q. Just two final questions for you, sir, if I

    13 may. The first one is this. Of the three policemen

    14 that you interviewed in Busovaca, and the interview

    15 that you had with Colonel Blaskic, the interview that

    16 you had with Ivica Santic and Pero Skopljak in Vitez,

    17 and the two Catholic priests in Zenica and Cajdras,

    18 Father Stjepan and Father Bozo, it's true, isn't it,

    19 that the name "Mr. Kordic" didn't arise once?

    20 A. His name may have been mentioned, but it's

    21 quite correct that it is not actually written down in

    22 my notes.

    23 Q. You have no recollection of his name being

    24 mentioned, do you?

    25 A. No.

  15. 1 Q. The final question, sir: On the Muslim side,

    2 you interviewed the mayor of Zenica, Besim Spahic; you

    3 interviewed the military commander of the 3rd Corps

    4 headquartered in Zenica, general Hadzihasanovic; you

    5 met his chief of staff, Ramiz Dugalic, a colonel; you

    6 met representatives of the International Committee for

    7 the Red Cross. And isn't it true that the name

    8 "Mr. Kordic" was not mentioned by any of those people,

    9 either, as far as you can remember?

    10 A. Again, it's true that it's not written down

    11 in my notes as being something which came up.

    12 Q. And it's true that as far as you can

    13 remember, none of those people that I've just recited

    14 mentioned the name "Mr. Kordic" at any time during your

    15 interviews of them; isn't that right?

    16 A. It's a very difficult question to answer, as

    17 I'm sure you're aware. The precise answer is no, I

    18 can't remember. We'll leave it at that, shall we?

    19 MR. SAYERS: I have no further questions,

    20 Your Honour. Thank you.

    21 Cross-examined by Mr. Mikulicic:

    22 Q. Good afternoon, Mr. McLeod. My name is Goran

    23 Mikulicic. I'm an attorney from Zagreb, and in this

    24 case I represent, together with my colleague, Kovacic,

    25 the second accused, Mr. Cerkez. Allow me to put

  16. 1 several questions to you, and please answer them to

    2 best of your recollection, if you will.

    3 Mr. McLeod, you have explained your tasks,

    4 the assignment you had in Central Bosnia. My question

    5 is the following: At that time, were you familiar with

    6 any of the languages spoken in the territory of the

    7 former Yugoslavia?

    8 A. I was getting some understanding, some

    9 comprehension of Serbo-Croat, but I would certainly not

    10 claim to be a fluent speaker of the language.

    11 Q. Is it true that the talks and interviews that

    12 you had from the 7th to the 11th of May, 1993, were

    13 conducted in English with the assistance of an

    14 interpreter?

    15 A. I was speaking in English, and the people I

    16 was talking to were speaking in their language through

    17 an interpreter, yes.

    18 Q. Could you explain to us, Mr. McLeod, how the

    19 interpreters were recruited for these interviews that

    20 you had? Did you bring interpreters from your mission

    21 in Zagreb, or was the interpreter provided in Zenica,

    22 or from some other place?

    23 A. The interpreters that I was using were

    24 provided by the ECMM in Zenica, and I think with the

    25 exception of my meeting with Colonel Blaskic, where, as

  17. 1 I've indicated, his interpreter actually took over the

    2 translating.

    3 Q. Did I understand you right, that that was the

    4 only case -- that is, when you spoke to Colonel Blaskic

    5 -- that you had an interpreter brought by the side

    6 that was being interviewed?

    7 A. Yes.

    8 Q. Mr. McLeod, can you remember what ethnic

    9 group the interpreters that were put at your disposal

    10 in Zenica belonged to?

    11 A. I know that one of the interpreters that I

    12 was using was Muslim. I don't know who Jean-Pierre

    13 Thebault's interpreter was at all, and I assume that

    14 Colonel Blaskic was using a Croat.

    15 Q. So am I right in saying that in all the talks

    16 except in the talks with Colonel Blaskic, an

    17 interpreter of Muslim ethnicity was used?

    18 A. One could assume that, but I don't know

    19 that.

    20 Q. Mr. McLeod, at the time, you must have been

    21 aware of the tensions in inter-ethnic relations between

    22 the Croats and the Muslims, weren't you?

    23 A. (No audible response)

    24 Q. In spite of that, you didn't think that

    25 perhaps it would be better to use an interpreter

  18. 1 belonging to another ethnic group for your talks,

    2 except for always using members of the same ethnic

    3 group?

    4 A. I think it would be reasonable to say that

    5 throughout my experience of years of working in the

    6 former Yugoslavia, I used interpreters who came from a

    7 very wide range of backgrounds, including some who were

    8 not even nationals of the former Yugoslavia, and

    9 without exception they were extremely good at doing

    10 their jobs and keeping their personal thoughts to

    11 themselves. So in practice, although what you're

    12 suggesting would be a good theory, it didn't happen and

    13 was not really a problem, as far as I'm aware.

    14 Q. Yes. But I'm asking you for this specific

    15 case for the period of fighting between the Croatian

    16 and Muslim entities in Bosnia, where you happened to be

    17 at that precise time.

    18 A. I think under the circumstances, what we were

    19 doing was acceptable.

    20 MR. SCOTT: May it please the Court, Your

    21 Honour, perhaps I could move this faster. If

    22 Mr. Mikulicic has some reason to believe that something

    23 was wrongly translated, maybe he could go specifically

    24 to that passage. If not, I think we're talking in

    25 theoretical generalities.

  19. 1 MR. MIKULICIC: (Interpretation)

    2 Q. Let me ask you a direct question, as

    3 suggested by my learned friend.

    4 Mr. McLeod, are you absolutely certain that

    5 the interpreter you used quite correctly, absolutely

    6 correctly, interpreted the statements given to you? Is

    7 your knowledge of the local language sufficient for you

    8 to be able to check the interpretations you were given?

    9 A. I believe that they were doing their best to

    10 be as accurate as they could be, which under the

    11 circumstances was the best that we could have, I

    12 think.

    13 JUDGE MAY: Mr. Mikulicic, I think we've

    14 exhausted this topic.

    15 MR. MIKULICIC: (Interpretation) Very well.

    16 Let us move forward.

    17 Q. Mr. McLeod, how did you note down the

    18 statements of the persons you interviewed? Did you use

    19 a recording machine?

    20 A. I believe that I've testified previously I

    21 sat and wrote in my notebook as the interviews were

    22 going on, and to a large extent, as there was an

    23 interpreter being used, there would be a pause between

    24 somebody saying something and then me getting a chance

    25 to write it down.

  20. 1 Q. Were you able to discern from your notes what

    2 the person being interviewed told you from what you put

    3 down as your own conclusions?

    4 A. I think in some cases, it's quite clear

    5 because of the terminology that's being used. In other

    6 cases, and again we've discussed this at some length,

    7 there are some bits where I'm not sure whether what I'm

    8 writing is my comment or is something that was actually

    9 being said.

    10 Q. Mr. McLeod, before arriving in Central

    11 Bosnia, did you familiarise yourself with the culture

    12 and history of the parts of the land that you were

    13 going to visit?

    14 A. Yes, to a limited extent.

    15 Q. Did you also study the political

    16 circumstances that preceded the events of April 1993?

    17 A. Yes, to the extent that I was observing them

    18 by being part of the mission that was actually watching

    19 what was going on.

    20 Q. At the time, Mr. McLeod, did you have any

    21 idea as to the reasons of the conflict in Central

    22 Bosnia between the Croatian and Muslim entities?

    23 A. I think I had as clear an idea as anybody

    24 else that was there from the International Community

    25 that was watching.

  21. 1 Q. What was that?

    2 A. The two or, indeed, the three different

    3 ethnic groups had been living in Central Bosnia

    4 together for quite some time and had been maintaining

    5 an easy or uneasy relationship with each other for

    6 quite some time. And over a period of years, as the

    7 Cold War came to an end, this situation had started to

    8 deteriorate and various elements of nationalism were

    9 trying to exert themselves, and one could see how the

    10 situation had deteriorated into the events that I was

    11 then involved in watching and attempting to try and

    12 relieve.

    13 Q. Mr. McLeod -- I beg your pardon. The

    14 transcript is correct after all.

    15 Mr. McLeod, are you aware of the fact that

    16 from the beginning of the conflict in the territory of

    17 the former Yugoslavia and, of course, also in the

    18 territory of Bosnia-Herzegovina, the International

    19 Community had tried to mitigate or, rather, deal with

    20 the problem? To be more specific, were you aware of

    21 the meeting in the Villa Konak held on the 17th and

    22 18th of March, 1992, chaired by Mr. Cutilliero and with

    23 the participation of Messrs. Boban, Izetbegovic and

    24 Karadzic, when a solution was offered for the political

    25 setup in Bosnia-Herzegovina? Are you aware of the

  22. 1 results of that meeting?

    2 A. No.

    3 Q. Do you know that on that occasion, the three

    4 representatives of the entities in Bosnia-Herzegovina,

    5 that is, the Serbs, Croats and Muslims, had agreed on

    6 the ethnic division of Bosnia-Herzegovina?

    7 A. I don't doubt that that was what was going

    8 on, but at this stage six years later, I can't remember

    9 the precise details, for which I apologise.

    10 Q. Mr. McLeod, may I remind you, with the help

    11 of a map, and then perhaps that will refresh your

    12 memory.

    13 MR. MIKULICIC: (Interpretation) So with the

    14 assistance of the usher, please, could we distribute

    15 this map?

    16 JUDGE MAY: Well, if we are going on to

    17 discuss the meeting, the witness has said that he

    18 wasn't aware of the results, so there's little point

    19 putting anything to him. No doubt, if you want to call

    20 evidence about this, Mr. Mikulicic, of course you'll be

    21 able to.

    22 MR. MIKULICIC: (Interpretation) Yes,

    23 Mr. President. I was going to tender this as evidence,

    24 but perhaps I should try a different route.

    25 Q. Let me ask the witness, Mr. McLeod, are you

  23. 1 familiar with the basis of the so-called Vance-Owen

    2 Plan on the division of Bosnia-Herzegovina into cantons

    3 based on the ethnic principle?

    4 A. Yes.

    5 Q. Mr. McLeod, in that case, let me show you a

    6 map showing Bosnia-Herzegovina and the division into

    7 cantons as envisaged by the Vance-Owen Plan, and then I

    8 will have only two brief questions for you.

    9 THE REGISTRAR: These exhibits are marked

    10 D41/1 and D42/1.

    11 MR. MIKULICIC: (Interpretation) May I point

    12 out that these are Defence exhibits that have been

    13 recorded under the number "/2". Perhaps that is how

    14 they should be numbered, "/2".

    15 JUDGE MAY: We'll just get the numbers put

    16 right. They should be "/2". Are they the right

    17 numbers, 41 and 42?

    18 THE REGISTRAR: Sorry.

    19 MR. MIKULICIC: (Interpretation) Well, we'll

    20 get the numbers later, perhaps, so as not to waste any

    21 more time.

    22 Q. Mr. McLeod, please look at this Vance-Owen

    23 map marked with the numbers "8" and "10", the cantons

    24 which, according to that plan, should have been under

    25 the control of the Croatian entity. Tell me, according

  24. 1 to your knowledge of the conditions there, do these

    2 cantons include the municipalities of Busovaca, Vitez,

    3 Travnik, Novi Travnik?

    4 A. Excuse me, but the copy of the map I've got

    5 is so unclear that it's not actually easy for me to

    6 answer that.

    7 Q. Yes, I realise that, Mr. McLeod. I'm not

    8 asking you to read the map, just to tell us, on the

    9 basis of your own knowledge, whether these are the

    10 municipalities of Vitez, Busovaca, Novi Travnik, and

    11 Travnik that should have, according to the Vance-Owen

    12 Plan, been part of canton number 10. If you don't

    13 know, don't trouble yourself any further.

    14 A. Again, I'm sorry, but I think that not only

    15 can I not identify which of the cantons on the map, but

    16 I'm not sure whether this is one of the iterations of

    17 the Vance-Owen Plan which ended up having any

    18 significance or not. So I think that I would rather

    19 not answer or attempt to answer.

    20 Q. Let us move on then, Mr. McLeod.

    21 JUDGE BENNOUNA: (Interpretation) Excuse me,

    22 Mr. Mikulicic. As you're referring to the Vance-Owen

    23 Plan again, I should like to ask Mr. McLeod about what

    24 is called "control" in the Vance-Owen Plan. What does

    25 it actually mean, control by such and such an ethnic

  25. 1 group, when talking about the Vance-Owen Plan? Then it

    2 says, "Under Bosniak, under Croat, under Serb control."

    3 You're familiar with the contents of that plan, so you

    4 know what is meant when the word "control" is used?

    5 A. I believe, Your Honour, the idea was to

    6 establish political and military and judicial police

    7 structures, the membership of which or the hierarchy of

    8 which would be based on the underlying ethnic structure

    9 that was in place in whichever of the cantons that one

    10 was referring to.

    11 So I believe one would expect to see, in a

    12 majority Croat area, that the majority of the military,

    13 police and political leadership would be Croats as

    14 opposed to Serbs or Muslims and so on. Things became

    15 particularly difficult in areas where the ethnic mix

    16 was fairly evenly distributed.

    17 JUDGE BENNOUNA: (Interpretation) Therefore,

    18 what is referred to as "control" simply means a

    19 majority chosen by such an ethnic group, based on the

    20 population composition in the area?

    21 A. I believe so, Sir.

    22 JUDGE BENNOUNA: (Interpretation) Thank you.

    23 MR. MIKULICIC: (Interpretation)

    24 Q. For clarification's sake, these two maps were

    25 admitted in the Aleksovski case through the testimony

  26. 1 of Professor Bianchini and on the part of the

    2 Prosecution.

    3 JUDGE MAY: That may be, but we're dealing

    4 with this case, and I notice that the second of the

    5 maps isn't the Vance-Owen Plan at all, but it's the

    6 division agreed by the parties in the Villa.

    7 MR. MIKULICIC: (Interpretation) My question,

    8 Mr. President, for the witness is whether, between

    9 these two maps, in view of the areas marked as

    10 belonging to one or the other entity, whether he sees

    11 any noticeable difference between the two.

    12 JUDGE MAY: Well, that's not a matter for

    13 him. That's a matter for argument for us.

    14 MR. MIKULICIC: (Interpretation)

    15 Q. Mr. McLeod, in your examination in chief, you

    16 said that you had the impression that the events of the

    17 16th of April were carefully planned and coordinated,

    18 and in support of that thesis, you said that on the

    19 very morning of the 16th of April, there were massive

    20 arrests and detentions of more prominent persons of

    21 Muslim ethnicity in Vitez; is that correct?

    22 A. Yes.

    23 MR. MIKULICIC: (Interpretation) in your

    24 report, Mr. McLeod, in this context, you also added a

    25 list to be found in appendix 2 of annex A. That is a

  27. 1 list of 13 leading Muslims arrested in Vitez. Would

    2 you be kind enough to look at that list?

    3 For Their Honours, this is appendix 2 to

    4 annex A.

    5 Q. Mr. McLeod, will you please tell us who gave

    6 you the information that these 13 persons were arrested

    7 on the 16th of April, 1993, in the morning in Vitez?

    8 A. The Muslim side.

    9 Q. Mr. McLeod, this information that you used as

    10 an argument in your statement, did you check it in any

    11 way?

    12 A. Yes. I met one of the men who had been

    13 arrested and had a brief conversation with him in his

    14 home, and I met a number of the other men who had been

    15 arrested in Kaonik prison, and the fact of the matter

    16 did not appear to be disputed by the Croats. I think

    17 again we can find the reference in one of the

    18 conversations that I had about the fact that people had

    19 been arrested and most of them had now been released.

    20 Q. I see. According to this list, Mr. McLeod,

    21 the first person on the list is Munib Kajmovic, the

    22 president of the SDA of Vitez. Mr. Munib Kajmovic

    23 testified in this Tribunal less than a month ago, and

    24 he himself told me that he had never been arrested.

    25 What would be your comment?

  28. 1 JUDGE MAY: Well, the witness can't comment

    2 on that. It's what another witness has told the

    3 Tribunal, if that's right. That's a matter for you to

    4 comment on when you come to make submissions to us.

    5 It's not a matter for the witness.

    6 MR. MIKULICIC: (Interpretation)

    7 Q. Mr. McLeod, in your report you have attached

    8 another list, a list of captured persons held in the

    9 Kaonik prison. Can you find it?

    10 JUDGE MAY: Can you tell us where it is,

    11 please, Mr. Mikulicic?

    12 MR. MIKULICIC: (Interpretation) Your Honours,

    13 in my copy, the copy is a poor one, so I can't see the

    14 number. But it says "02047". This is the list I'm

    15 talking about. Maybe it would be helpful if I showed

    16 it to you.

    17 JUDGE MAY: Have you got it, Mr. McLeod? Do

    18 you have the list that's being referred to?

    19 A. Yes, Your Honour. It's on the ELMO at the

    20 moment.

    21 JUDGE MAY: Perhaps you can tell us where it

    22 comes from.

    23 A. In my report, it's "01-1", but then it's --

    24 JUDGE MAY: Yes, thank you. Yes.

    25 MR. MIKULICIC: (Interpretation)

  29. 1 Q. Mr. McLeod, would you be so kind as to tell

    2 us where you got this list from? Who gave it to you,

    3 or did you compile it yourself?

    4 A. As I've testified previously in the court, it

    5 was given to me by Mr. Aleksovski, whom I understood

    6 was the man who was running the prison in Kaonik, and

    7 he gave it to me when I was visiting the prison. The

    8 list was printed off the computer system which he

    9 controlled, and I believe that it was a list of the

    10 people that, according to his computer system, if

    11 nothing else, were currently resident in the prison.

    12 Q. We see on this list, Mr. McLeod, something

    13 added by hand and other comments on a typewriter.

    14 Could you explain to us who the author is of those

    15 additions?

    16 A. Certainly. So at the top, this is typed by

    17 myself and is simply the reference which allows the

    18 list to be incorporated into my report. Then here

    19 again we have my rather familiar and indecipherable

    20 handwriting (indicating), and that was written while I

    21 was actually in the prison itself. Then right at the

    22 very bottom, again my handwriting, just incorporating

    23 the page number so that the pages could be found within

    24 the report. I believe that's everything that's been

    25 added to it.

  30. 1 Q. Could you please turn to the next page of

    2 this report. These remarks that you say you wrote

    3 yourself by hand, what do they actually represent? Is

    4 it information that you received or, rather, your


    6 A. I believe that what I was doing, and again at

    7 this distance in time I can't remember precisely, but

    8 what I think I was doing was as I went into the cell in

    9 which these men were contained, I was making a note of

    10 the previous occupation, if you like, of what the

    11 person had been doing before, and then the day when

    12 they had been arrested. So you can see "16/04",

    13 "16/4", so that really would be the 16th of April.

    14 Q. Let us look at the date of their arrest. Did

    15 you verify that date in the documents or is it the date

    16 you took down on the basis of your conversation with

    17 those persons?

    18 A. I believe that while we were having these

    19 brief conversations in the cell, they were saying -- I

    20 was identifying who the people were after a while, and

    21 they were saying, "This is who I am. I was a forensic

    22 in Vitez police, and I was arrested on the 16th of

    23 April." I would certainly not have written myself

    24 "forensic in Vitez police," which is what I think it

    25 was -- as it was being translated.

  31. 1 Q. You are talking of the person under number 74

    2 in this list, aren't you?

    3 A. Correct.

    4 Q. But that same person, in his statement to the

    5 investigators of the Tribunal, said that he was

    6 arrested on the 19th of April.

    7 JUDGE MAY: That's another point, not for the

    8 witness.

    9 MR. MIKULICIC: Very well, Your Honours. We

    10 won't dwell on that any further.

    11 Q. Mr. McLeod, when we're talking about Kaonik,

    12 did you manage to learn under whose jurisdiction that

    13 facility, that prison in Kaonik, was?

    14 A. Having had several conversations with people

    15 about it, the policemen that I met in Busovaca and

    16 Mr. Aleksovski, I believe that it was a military prison

    17 under military jurisdiction.

    18 Q. I have in front of me your notes that you

    19 made after talking to the head of the civilian police

    20 in Busovaca, Mr. Nikica Petrovic, where it says that

    21 the prison was under the jurisdiction of the military

    22 court in Travnik. Is this something that you learned?

    23 Is it your conclusion? Or is it what he told you?

    24 Could you please tell us?

    25 A. I think it's what he told me.

  32. 1 Q. Did you check that fact?

    2 A. In no more detail than having Mr. Aleksovski

    3 also explain that it was a military prison. I can't

    4 remember whether Aleksovski actually said that it was

    5 under the military court in Travnik or not. But we

    6 could go and check it, even today.

    7 Q. Mr. McLeod, do you know that prior to the

    8 16th of April -- that is, on the 15th of April, 1993 --

    9 in the municipality building in Vitez, a meeting was

    10 held of a commission for incidents which was composed

    11 of representatives of two ethnic groups, of the Muslim

    12 entity and the Croatian entity, and that that

    13 commission adopted certain conclusions? Are you

    14 familiar with that fact and the conclusions of that

    15 commission?

    16 A. I'm aware that a joint commission was

    17 meeting. I'm not specifically aware of that meeting or

    18 of the conclusions of that particular meeting.

    19 Q. I have no further questions, Mr. McLeod.

    20 Thank you for your answers.

    21 MR. MIKULICIC: Thank you, Your Honours.

    22 THE REGISTRAR: The number for the map

    23 relating to the Vance-Owen Plan will be D30/1, and the

    24 number for the other map will be D31/2 -- sorry; D30/2

    25 and D31/2.

  33. 1 MR. SCOTT: May it please the Court.

    2 Re-examined by Mr. Scott:

    3 Q. Mr. McLeod, by the time you arrived in

    4 Central Bosnia in May of 1993, you had previously been

    5 a trained, if you will, military observer both in

    6 Northern Ireland, for approximately two years, and also

    7 previously during your ECMM involvement in the former

    8 Yugoslavia; is that correct?

    9 A. Yes.

    10 Q. And based on that experience, you had some

    11 past training and qualification in terms of observing

    12 what was happening in a local environment; is that fair

    13 to say?

    14 A. Yes.

    15 Q. Mr. Sayers has asked you a long series of

    16 questions about various other events or alleged

    17 atrocities in Central Bosnia, many of them allegedly

    18 involving Croat victims. Mr. McLeod, can you tell the

    19 Court, was it ever your intention, in the middle of May

    20 1993, to catalogue and discuss every such event or

    21 alleged event in Central Bosnia during the first six

    22 months of 1993?

    23 A. No.

    24 Q. And is it in fact likely that there were also

    25 a number of other events or atrocities involving

  34. 1 alleged Muslim victims which you also did not include

    2 in your report?

    3 A. Quite possibly.

    4 Q. On a particular topic, if I can ask the usher

    5 to hand you what's marked as Defence exhibit 25/1, I

    6 wonder if I can direct your attention to the heading --

    7 well, first of all, for the record, is this a special

    8 report on Croats in Zenica dated the 20th -- well,

    9 concerning the period or the date of the report, 20 and

    10 21 of April, 1993?

    11 A. Yes.

    12 MR. SCOTT: It might be helpful, for the

    13 courtroom's reference, to put that on the ELMO,

    14 Mr. Usher. If you could just move it down momentarily

    15 so the counsel and Court can see just the title and

    16 format of the document.

    17 Q. This is an ECMM-prepared document around the

    18 same time, roughly, the end of April, early May, 1993;

    19 correct?

    20 A. Yes.

    21 Q. Evidencing, would you agree, some concern and

    22 interest by ECMM in what was happening to the Croats in

    23 the area, as well as the Muslims? Isn't that true?

    24 A. Yes.

    25 Q. Let me direct your attention specifically to

  35. 1 item number 1, titled "Zenica's Prison." Directing

    2 your attention to approximately the third line, the end

    3 of the third line, the report states: "They are well

    4 treated, considering the situation."

    5 A. Yes.

    6 Q. Given what you had in front of you, in terms

    7 of your report and the material you were trying to

    8 cover in the time that you were in Central Bosnia, was

    9 it perhaps the case that there was less concern for the

    10 Croat prisoners in this particular situation than what

    11 you were hearing about the Muslim prisoners at that

    12 time?

    13 A. I think, actually, it would be fair to say

    14 that there was equal concern for prisoners on both

    15 sides.

    16 Q. Fair enough. And were you able to determine

    17 and had ECMM been able to determine during this time

    18 period that at least concerning Zenica prison, the

    19 Croat prisoners there were, all things, in a terrible

    20 situation, admittedly, but in that situation, they were

    21 being treated well?

    22 A. Well, that's certainly what this report is

    23 saying, isn't it?

    24 Q. Now, you testified some weeks ago now, in

    25 direct, that you arrived in Central Bosnia on this

  36. 1 assignment with an open mind, with no preconceived

    2 conclusions; is that still your testimony today?

    3 A. Yes.

    4 Q. Despite all the cross-examination that you've

    5 now had from both counsel, you still believe that you

    6 entered this mission with an open mind?

    7 A. That was my -- that was my best intention,

    8 yes --

    9 Q. I'm sorry, I apologise for interrupting you.

    10 Can you explain to the Court when and how, in the

    11 course of your mission and the preparation of your

    12 report, did your thinking begin to be formed in any

    13 particular direction? When did you begin to arrive at

    14 particulars sets of conclusions which then, ultimately,

    15 of course, became your report?

    16 A. I think at the point where I was sitting down

    17 and reading the various sitreps, ECMM and UNPROFOR,

    18 that we've discussed previously, and plotting out where

    19 events had happened and seeing that there were a number

    20 of events which had happened at almost exactly the same

    21 time, suggesting not just an isolated incident, as the

    22 first issue. Then the second stage was reaching the

    23 conclusion that in a number, if not the majority, of

    24 cases, events had been instigated by the Croatian side

    25 rather than the Muslim side, and therefore what one

  37. 1 appeared to have was a coordinated effort, in a number

    2 of places at the same time, as opposed to one isolated

    3 incident.

    4 Q. You were sent on this mission from your base

    5 in the humanitarian section in the ECMM headquarters in

    6 Zagreb; is that correct?

    7 A. Yes.

    8 Q. Is it correct to say that you were

    9 essentially to be part of what was essentially a

    10 three-person team along with Ambassador Thebault and

    11 Mr. Friis-Pedersen?

    12 A. Yes.

    13 Q. And were Ambassador Thebault and

    14 Mr. Friis-Pedersen what you might, in this particular

    15 setting, call more locals than you were, in terms of

    16 this was their local, on-the-ground assignment?

    17 A. Yes.

    18 Q. And had been for some time?

    19 A. Yes.

    20 Q. When you prepared your report and circulated

    21 a draft of your report, did either Ambassador Thebault

    22 or Mr. Friis-Pedersen disagree with you, suggest that

    23 you didn't know what you were talking about, suggest

    24 that you had not accurately observed what was happening

    25 in Central Bosnia during that time?

  38. 1 A. No.

    2 Q. And by the time that your report was prepared

    3 and submitted to your management, did Ambassador

    4 Thebault and Mr. Friis-Pedersen agree in and join your

    5 report?

    6 A. Ambassador Thebault certainly did. I'm not

    7 sure that Erik had commented in detail on the final

    8 summary, if you like.

    9 Q. All right. Let me ask -- I'm sorry; go

    10 ahead.

    11 Let me ask a follow-up, similar question,

    12 then. During the course of your work with

    13 Mr. Friis-Pedersen on this project, did he ever

    14 indicate disagreement with you?

    15 A. No.

    16 MR. SCOTT: Excuse me, Your Honour; I'm

    17 sorry.

    18 Your Honours, in this regard, I make a point

    19 for the record that before Mr. McLeod leaves the

    20 Tribunal, I would ask that the Defence -- I would offer

    21 that the Defence put any question to Mr. McLeod

    22 concerning any disagreements or any conflict they might

    23 purport to find between his testimony in the report and

    24 a transcript of Mr. Friis-Pedersen's testimony, and I

    25 say so for this reason: because Mr. Friis-Pedersen is

  39. 1 one of the witnesses who died. The Court has accepted

    2 the transcript. The Defence also has his full

    3 statement, and in light of the attacks on Mr. McLeod's

    4 qualifications and methodology, if they can find

    5 something in either his testimony or his statement that

    6 contradicts his report or his testimony, I think the

    7 witness should have a chance to confront that before he

    8 leaves the courtroom.

    9 JUDGE MAY: If there is anything, it will be

    10 matter for comment.

    11 MR. SCOTT: Very well, Your Honour.

    12 Q. Mr. Sayers, on cross-examination, suggested

    13 that you had not met with any of the Croat military

    14 leaders, but in fact you did meet with Mr. Blaskic;

    15 true?

    16 A. Correct.

    17 Q. During your direct examination and in cross,

    18 you mentioned that there were three schools of thought

    19 circulating, if you will, at the time about what had

    20 happened in Ahmici. I'm happy to ask you to state

    21 those yourself, but if there is no objection, in the

    22 interest of time, I'll try to summarise it myself.

    23 JUDGE MAY: We've heard it, Mr. Scott.

    24 MR. SCOTT: If the Court recalls it, just

    25 because it was some weeks ago, Your Honour.

  40. 1 JUDGE MAY: Yes.

    2 MR. SCOTT: Very well. Then I'll move on.

    3 Q. You recall this basic testimony, very, very

    4 shorthand, either the Muslims attacked the village,

    5 their own people; there had been something called

    6 agents provocateurs, or the Serbs had attacked the

    7 village, the areas, to destabilise or create conflict

    8 between the Muslims and the Croats; or that, indeed,

    9 the HVO had mounted a deliberate attack on the Muslim

    10 population. Those were essentially the three schools

    11 of thought?

    12 A. Yes.

    13 Q. Among other things, on page 1 of your report,

    14 you concluded it was hard to believe that each of the

    15 acts were the result of isolated extremist -- or

    16 groups; is that fair to say?

    17 A. Yes.

    18 JUDGE MAY: Mr. Scott?

    19 MR. SCOTT: Yes, Your Honour.

    20 JUDGE MAY: At the moment, you're not

    21 re-examining; you're merely going over the old

    22 evidence.

    23 Well, I'm about to -- yes, Your Honour. I'm

    24 sorry.

    25 JUDGE MAY: You're coming to a point?

  41. 1 MR. SCOTT: Yes, Your Honour.

    2 JUDGE MAY: Good.

    3 MR. SCOTT: Your Honour, my final set of

    4 questions will relate to questions which -- I have a

    5 packet to give the Court. It's only for the purposes

    6 of reference by the Court, not for the witness, but

    7 unless there's -- it has to do with prior testimony,

    8 and unless there's -- the Court, and I think counsel,

    9 can follow and make sure that they think that it's an

    10 accurate representation by me, I simply think it will

    11 be easier if I hand out this information, which, again,

    12 will be the basis of about ten questions to the

    13 witness.

    14 JUDGE MAY: You say "prior testimony"; which

    15 testimony is this?

    16 MR. SCOTT: It is the testimony of the

    17 defendant Blaskic in his trial, Your Honour, in

    18 contrast to what was told to this witness when

    19 Mr. McLeod interviewed him on May 8th of 1993, as

    20 opposed to the statements and conclusions of

    21 Mr. Blaskic in terms of the attack on Ahmici.

    22 JUDGE MAY: How does this arise from

    23 cross-examination?

    24 MR. SCOTT: Your Honour, there is extensive

    25 questioning of this witness's credibility and the

  42. 1 manner in which he prepared his report and that there

    2 was not an adequate basis for him to reach these

    3 conclusions. The proof is in the pudding, I submit,

    4 Your Honour, and the proof, as would come out and is

    5 supported by a senior Bosnian Croat military leader, is

    6 that, in his own testimony, his own case, under oath,

    7 is that Mr. McLeod's assessment was exactly spot on the

    8 money, contrary to the Defence attacks that it is

    9 incredible.

    10 JUDGE MAY: I don't think you can support

    11 your own witness in that way, not by asking him about

    12 what Mr. Blaskic said. If you've got some other means

    13 of getting that before the Trial Chamber, you could

    14 certainly do it.

    15 MR. SCOTT: Can I ask, then, a very

    16 similar, abbreviated set of questions, then, Your

    17 Honour? I won't take the time to pass these out, but I

    18 think I can make the point in a couple of questions.

    19 JUDGE MAY: Yes.

    20 MR. SCOTT: Thank you.

    21 Q. One of the -- well, we all know by now one of

    22 the individuals you interviewed was Colonel Tihomir

    23 Blaskic; is that correct?

    24 A. Yes.

    25 MR. SCOTT: Just for a point of reference,

  43. 1 Your Honour, that is at G1, appendix G1 to Mr. McLeod's

    2 report.

    3 Q. At any time in the course of your interview

    4 with General Blaskic on the 8th of May, 1993, just a

    5 few weeks after the attack on Ahmici, did he indicate

    6 to you his conclusion that the attack on Ahmici was a

    7 crime?

    8 A. No.

    9 Q. Did he indicate to you at any time that in

    10 fact it was an organised, systematic, and planned crime

    11 under somebody's control?

    12 A. Well, the thesis that he was putting forward

    13 was that everything that had happened had been as a

    14 reaction to a Muslim attack, and so the organisation

    15 was on his part, but as a reaction under

    16 counter-attack. That was quite clear in his mind.

    17 Q. Did he indicate to you at that time that he

    18 had or contemplated asking an investigation be

    19 conducted by an SIS officer by the name of Anto

    20 Sliskovic?

    21 A. No.

    22 Q. Following your mission in Central Bosnia,

    23 were you ever provided a copy of a report by Anto

    24 Sliskovic submitted to Mr. Blaskic on the 25th of May,

    25 1993?

  44. 1 A. No.

    2 Q. During the course of your discussion with

    3 Colonel Blaskic these few days after the attack on

    4 Ahmici, did he indicate to you that it was his view

    5 that the HVO military police had committed the attack

    6 on Ahmici?

    7 A. No.

    8 Q. Did he tell you at that time that he had told

    9 this to General Petkovic, the chief of staff of the

    10 HVO? That he had told General Petkovic that it was --

    11 JUDGE MAY: One moment. There's an

    12 objection.

    13 MR. KOVACIC: (Interpretation) Your Honour, I

    14 would object on that line of questioning. As you

    15 rightly said a day or so ago, it is not Blaskic here on

    16 trial. I don't see the relevance, really.

    17 JUDGE MAY: I rather agree.

    18 If you want to make a point Mr. Scott, you

    19 must do it later in the trial; but doing it through

    20 this witness, in this way, when we have the report in

    21 front of us, does not assist.

    22 MR. SCOTT: All right, Your Honour, if I can

    23 ask one closing question, then.

    24 Q. If Colonel Blaskic had in fact given you such

    25 information when you interviewed him on the 8th of May,

  45. 1 1993, would that have been consistent with and in fact

    2 supported your conclusions in terms of what happened,

    3 how the attack on Ahmici was carried out?

    4 A. If he had had evidence that the attack had

    5 been carried out by the Croatian side, then that would

    6 have been consistent with the conclusion that I

    7 reached.

    8 MR. SCOTT: No further questions, Your

    9 Honour.

    10 JUDGE ROBINSON: I just want to make the

    11 point that very often, it seems to me that

    12 cross-examination and re-examination are conducted in

    13 this trial as though there are no further stages in the

    14 trial, when in fact there is open to both sides the

    15 process of making submissions at the end of the

    16 Prosecution's case as well as the address at the end of

    17 the case. And it seems to me that there is a limit to

    18 what you can extract from a witness. I have noticed

    19 quite frequently that counsel makes a good point in

    20 cross-examination and yet wants to extract more from

    21 the witness, when that should really be an appropriate

    22 matter for submission at the end of the Prosecution's

    23 case.

    24 JUDGE MAY: Mr. McLeod, thank you for coming,

    25 and also coming back to the International Tribunal to

  46. 1 give your evidence. You are now free to go, if you

    2 would like to leave.

    3 THE WITNESS: Thank you.

    4 (The witness withdrew)

    5 MR. NICE: Before we take the break, if

    6 that's what you had in mind, can I just explain what

    7 the present position is as to evidence? There's no

    8 more evidence, I think, this week. Possibly there will

    9 be a short witness tomorrow.

    10 The reason for that is that last Friday's

    11 witness spilled over into this week. The witness

    12 listed for Monday could only come on Monday, and I

    13 think Tuesday, so he was stood down. It wasn't then

    14 known how long the evidence would take. It was known

    15 that there was to be discussion about the dossier, and

    16 in those circumstances, no further witness has been

    17 sought, and it's not at all sure that even if I had

    18 sought one, I would have been able to find one at short

    19 notice simply to fill what would have been, at best,

    20 part of half a day. I'm sorry about that. There

    21 remains the witness Ehsan Bajwa, who took the statement

    22 from Dr. Mujezinovic, who can I think can be called

    23 conveniently tomorrow, but he won't take very long.

    24 We have been in discussion with

    25 Ms. Featherstone throughout the week, both sides, as to

  47. 1 time tabling, and I think the Defence have come here

    2 today expecting the dossier issue to be argued

    3 tomorrow. I see that they are nodding on that.

    4 JUDGE MAY: Well, there's Mr. Alcock's or

    5 Dr. Alcock's evidence to be discussed.

    6 MR. NICE: That we have also resolved amongst

    7 ourselves.

    8 JUDGE MAY: You have?

    9 MR. NICE: Yes. I can tell you what the

    10 position is there. I've discussed it with Mr. Stein.

    11 So far as he is concerned, his report, in English, was

    12 received by us on the 25th of June and filed 15 minutes

    13 after receipt, sent down for translation, and under all

    14 pressure, the translation didn't return until the 10th

    15 of July. There may be an issue at some stage to be

    16 determined, in respect of experts, what is the

    17 requirement for a translation into a language the

    18 defendant understands, because it's not explicitly

    19 covered by any earlier order.

    20 Setting that technical issue on one side,

    21 Mr. Stein and I have agreed the position about next

    22 week's evidence as follows. The first witness, Donia,

    23 who comes in on Monday for a week when we have four

    24 afternoons of evidence, is a witness I shall take very

    25 shortly in chief; I'm not quite sure how short, but

  48. 1 very short, or short. Notwithstanding that, Mr. Stein

    2 is sure that his examination will last at least until

    3 Wednesday, as I understand it, which will leave only,

    4 at most, if he's right, half a day and a bit for

    5 Alcock. Alcock I will again take shortly in chief, or

    6 whoever takes him will take him shortly in chief, and

    7 again, Mr. Stein is confident that his

    8 cross-examination will exhaust the week and will

    9 involve Alcock coming back at some future date.

    10 In those circumstances, he accepts that any

    11 inconvenience or difficulty that they may face arising

    12 from the fact that they didn't have the translated

    13 version for their clients any earlier than the 21st of

    14 July, whatever their entitlement under the Rules, can

    15 be cured by dealing with issues arising on an adjourned

    16 date.

    17 Now, that's, I hope you will agree, a

    18 sensible resolution of any problem. It is of course

    19 contingent on Mr. Stein's estimates of time to be taken

    20 being accurate, but I hope I have faithfully reflected

    21 what he has told me.

    22 He nods assent.

    23 MR. STEIN: The only addition being,

    24 visualising the calendar in my head, the next week, the

    25 week after next, is consumed with other witnesses.

  49. 1 MR. NICE: Yes.

    2 MR. STEIN: So we presume Alcock would

    3 therefore come on --

    4 MR. NICE: Some other date.

    5 MR. STEIN: -- some other date. That would

    6 cure the problem.

    7 MR. NICE: As to both experts, one of whose

    8 reports is compact, the other of whose is long, I will

    9 be serving on everybody, I hope, if not today,

    10 tomorrow, an overview -- in one case I think it's about

    11 three sides; in the other it's probably only one --

    12 which will guide you to the conclusions and the central

    13 pages, and I hope that will be helpful.

    14 JUDGE MAY: Very well. So is the position

    15 this, that -- one short witness tomorrow?

    16 MR. NICE: Yes.

    17 JUDGE MAY: But we really must try and deal

    18 with the dossier argument.

    19 MR. NICE: Certainly, yes. As to that,

    20 although I think the detail to be argued tomorrow, and

    21 Mr. Smith, who I think wishes -- oh, he is here.

    22 JUDGE MAY: Let's adjourn now and take our

    23 break. We will resume this after the break. We're not

    24 sitting beyond 5.15 today.

    25 A quarter of an hour now, please.

  50. 1 --- Recess taken at 3.55 p.m. ^^^ wb

    2 --- On resuming at 4.17 p.m.

    3 JUDGE MAY: Before we move on to the dossier,

    4 Judge Bennouna has a point arising from the matters

    5 which were mentioned just before the adjournment.

    6 JUDGE BENNOUNA: (Interpretation) My question

    7 has been prompted by what we learned from the

    8 discussion between the Prosecution and the Defence,

    9 Mr. Nice and Mr. Stein, regarding the subject of

    10 Mr. Donia.

    11 Your estimate, and I hope it is overestimated

    12 because we do not at all intend to listen to Mr. Donia

    13 until the end of Wednesday, can you reassure us,

    14 because in our view we should finish with Donia by

    15 Tuesday to hear another witness on Wednesday. You see

    16 that the rhythm that we are applying now is intended to

    17 make good progress and within reasonable time limits.

    18 So can you reassure me on this point, and then I can go

    19 on to my next question.

    20 MR. STEIN: I cannot reassure you. I wish I

    21 could. Mr. Donia, Dr. Donia, is an expert witness. He

    22 covers much territory. I do not intend to discuss

    23 medieval times with him. You won't be hearing that.

    24 He has testified in Blaskic. He covers broadly and

    25 widely, he paints with a broad brush, and I'm quite

  51. 1 sure that I will go into Wednesday with him to give you

    2 the full account of what he has to say.

    3 JUDGE MAY: Well, subject to what we say

    4 about that.

    5 MR. STEIN: Subject to the Court, of course.

    6 JUDGE MAY: I'm sure you won't waste any

    7 time, and I hope it's going to be possible to deal with

    8 the matter more rapidly, particularly if the

    9 examination in chief is short.

    10 MR. STEIN: We had proposed, and I thought

    11 this was given, that there would be limited if no

    12 examination in chief. You would have had the report

    13 and read it. That is the way we were going to operate,

    14 and that's fine with us. So it was presume I would

    15 pretty much jump in, if the Court would allow, on

    16 Monday and start --

    17 JUDGE BENNOUNA: (Interpretation) Therefore,

    18 if you begin straightaway on Monday, we can hope that

    19 you will have finished by Tuesday afternoon, if the

    20 examination in chief is very short. But you will do

    21 your best. Thank you.

    22 MR. STEIN: Absolutely, and I will be working

    23 on it this weekend and paring it down, but my best

    24 estimate right now, I can tell you, with the Court's

    25 permission, would be Wednesday, but I will work towards

  52. 1 Tuesday.

    2 JUDGE MAY: Good. Thank you.

    3 Now, we turn to the dossier which we've had,

    4 in fact I have here beside me, our copy of it.

    5 The position now is that we've had the

    6 investigator's report, we have had the response from

    7 both accused to the dossier, and perhaps the most

    8 orderly way of dealing with it would be to invite the

    9 Prosecution to begin, in the light of the latest

    10 pleadings, as it were, and then we'll hear from the

    11 Defence.

    12 MR. NICE: Well, the latest pleadings leave

    13 the position in a sense substantially unchanged from

    14 what I forecast they would be.

    15 The Defence, in slightly different ways in

    16 their two pleadings, have effectively admitted

    17 nothing. Their grounds for challenging are, I think in

    18 general, three; one, there's a matter in issue, the

    19 nature of the attack and defence of the village; two,

    20 there's a witness who is unwilling to attend, that

    21 being in itself a ground to say that his evidence

    22 should not be read; three, and this is most to be found

    23 at the last part of the response on behalf of Kordic,

    24 matters are outside the knowledge, it is said, of

    25 Kordic and therefore there's no way in which those

  53. 1 matters can be admitted. There are maps and so on that

    2 are admitted, but they don't take us very much

    3 further.

    4 Even prior testimony, although it was once

    5 said by Mr. Smith, I can remember, that prior testimony

    6 might be admissible, is challenged, and we really get

    7 nowhere on the basis of the pleadings of the

    8 defendants.

    9 The reality is that the single issue

    10 highlighted is whether evidence has to be live from the

    11 witness box or whether it can come in the form of, as

    12 argued here, written statements. That issue, I

    13 forecast, will lie at the root both of this problem

    14 and, indeed, of some other problems yet to face this

    15 Chamber.

    16 First, there is the outstanding issue of a

    17 dead witness whose statement we seek to have read. You

    18 will recall that on an earlier occasion, we dealt with

    19 two dead witnesses and the prior testimony of one of

    20 them, but left outstanding the issue of the statement

    21 of the dead witness.

    22 There is another issue, I think, which will

    23 be coming, probably, to be dealt with at some stage,

    24 and that is what, if anything, should be done in

    25 respect of witnesses who are unwilling, perhaps through

  54. 1 fear, from coming to the Tribunal at all. Of course,

    2 it's a little early for me to be sure that a witness is

    3 definitely unwilling to come and that it's through

    4 fear, because there's some time to pass before the end

    5 of my case, and therefore further efforts can be made

    6 to secure the attendance of witnesses and, indeed, to

    7 check on their attitude. But if witnesses are

    8 unwilling to attend and if it is through reasonable

    9 fear, there will be an argument advanced the Tribunal

    10 should consider their written statements as evidence in

    11 the case, on the basis not least of common sense that

    12 if a witness had something material to offer an inquiry

    13 of this kind and is not available in the conventional

    14 way through reasons entirely genuine of that kind, how

    15 can it be proper that the Tribunal should not have the

    16 advantage of considering what he or she was able to

    17 say. But that's for a later date.

    18 There may be other ways of dealing with those

    19 particular issues. The argument may not arise in

    20 exactly that way, but I simply forecast that the issue

    21 of the reading of witness statements is not entirely

    22 particular to this application.

    23 We've set out earlier in our skeleton

    24 argument why we say that written statements may indeed

    25 be admitted. They are a species of evidence. They are

  55. 1 identical in concept to hearsay evidence that the

    2 Tribunal does accept through witnesses from time to

    3 time. There is therefore no straightforward or

    4 unanswerable reason why the statements should not be

    5 read, and it will be a matter, as the Court knows from

    6 our argument, will be a matter for the Chamber to

    7 decide whether a particular statement should be read

    8 or, indeed, whether that witness should be called.

    9 I can tell you that so far as the witnesses

    10 in the dossier are concerned, originally we had

    11 identified four as being, I think in our earlier

    12 categorisation of witnesses, above the line, and that's

    13 numbers 10, 11, and 13, and one who has already given

    14 evidence, he being above the line.

    15 We had forecast being able to deal with

    16 matters such as the autopsy, a document which is now

    17 challenged in full by the Defence for various reasons.

    18 We had forecast being able to deal with that without

    19 perhaps a witness being called, and none had been

    20 served formally to produce it. Were the Defence

    21 argument saying that even that document is inadmissible

    22 is to be upheld, then we would have to consider adding

    23 to the list.

    24 Indeed, the attitude of the Defence shows

    25 how, in a sense, insincere, and I don't mean that

  56. 1 offensively, but how insincere was their suggestion to

    2 the Tribunal at an earlier stage that the Prosecution

    3 should be limited essentially to two witnesses per

    4 village. As I said in the skeleton argument we

    5 advanced, had anybody fallen for that, all that would

    6 have happened would have been at the end of the case,

    7 because all the other witnesses would not have been

    8 lead and might not have been read, well, it simply

    9 would have been said we haven't proved our case.

    10 It is now apparent, and I needn't take you

    11 page by page to the support for this on a

    12 witness-by-witness basis, but it's now apparent that,

    13 in effect, for us to prove this case, we have to call

    14 basically all the witnesses.

    15 The Court may think, and in a sense I suspect

    16 both parties will be guided and assisted by the Court's

    17 reaction to both the dossier and the pleadings now

    18 filed in respect of it or the arguments filed in

    19 respect of it, the Court may think that where the

    20 Defence find themselves taking entirely technical

    21 arguments and providing no grounds for resistance

    22 beyond, for example, and I just open --

    23 JUDGE ROBINSON: Sorry, Mr. Nice. Just to be

    24 clear, when you said you'll have to call all the

    25 witnesses, you mean the 170?

  57. 1 MR. NICE: I mean as to Tulica, just looking

    2 at Tulica. I mean basically, from what they say,

    3 everything that every witness says is in dispute and I

    4 would have to call them all. Of course, I would be

    5 able to pare it down depending on which witnesses are

    6 available to me, and I would be able to make my own

    7 decision eventually as to when I was satisfied that I

    8 had got enough evidence in. But basically everything

    9 is going to have to be proved. There is not going to

    10 be the admission of any material fact. No underlying

    11 crime, and we heard this on the last occasion, is going

    12 to be conceded.

    13 In the words of Judge May on an earlier

    14 occasion, and reflecting the use of these terms in

    15 another jurisdiction, simply everything is going to be

    16 put in issue.

    17 It may be that the Chamber will think the

    18 Defence are on particularly weak ground in taking this

    19 approach, and I open it pretty much at random, page 35

    20 of the Kordic response, where we see this, as part of

    21 their response to the statements of witnesses made:

    22 Paragraph 62: "The killing of Kasim

    23 Huseinovic was witnessed by Avdo and Akif Huseinovic.

    24 Avdo saw two or three soldiers striking Kasim

    25 Huseinovic with rifle butts and their boots. His skull

  58. 1 seemed to have cracked open. His brain was visible.

    2 He was screaming and moaning, while the soldiers

    3 insisted that he give them his rifle. Kasim was then

    4 taken under escort to his house. When he came out of

    5 his house, the beating continued, and he was then shot

    6 and killed."

    7 Response: "Mr. Kordic has no knowledge of

    8 who, if anyone, was killed or by whom during military

    9 operations in the vicinity of Tulica in June of 1993.

    10 In addition, Mr. Kordic objects to any attempt to use

    11 either witness statements from witnesses who are not

    12 available to testify or testimony that they've given in

    13 other cases because there are no exceptional

    14 circumstances that might justify the admission of such

    15 testimony at this stage of the case under the holding

    16 of the Aleksovski Appeals Chamber decision."

    17 There it is.

    18 Let me be blunt. It is unlikely in the

    19 extreme that these witnesses are making up those

    20 allegations. To seek to block that evidence coming in

    21 in a short and convenient way is not helpful. It is

    22 aimed solely at taking advantage of being able to

    23 restrict noncontroversial material coming to the

    24 Chamber, and as I've said before, that's something that

    25 Defence are entirely entitled to do, and in some

  59. 1 jurisdictions, perhaps many, it's a proper and

    2 justifiable approach from which they can be moved only

    3 by either the rules of court, and that is general

    4 rules, or by decisions made by a particular Trial

    5 Chamber, which is why we bring the matter to you.

    6 They don't have any grounds for challenging

    7 this material, and yet they say unless it's called

    8 live, you shouldn't have it. This is a problem not

    9 just for this case in this Tribunal but, of course, for

    10 other cases of this scale that will be coming to face

    11 this Tribunal, and it's a problem this Chamber may

    12 think that is best dealt with now.

    13 We would say, in relation to these responses,

    14 that it is quite insufficient, as a response, to resist

    15 the proper reading of the witness statements that

    16 support matters of that sort and that that material

    17 should be available to the Chamber in a convenient way,

    18 either in the form of the witness statements

    19 themselves, in the form of the report prepared by the

    20 investigator, or even, although it's now probably too

    21 brief a document, the document we served many months

    22 ago, the document that Mr. Stein said on the last

    23 occasion was the very sort of document that he would

    24 have pleaded to. You remember, he said there was a

    25 document he would have pleaded to if it had been in a

  60. 1 particular form, and lo and behold, we had already

    2 served it in that form and they denied each and every

    3 word of that. That's the short form of summary about

    4 Tulica that was attached to the pre-trial brief and

    5 served earlier. So there is no ground for resisting

    6 this sort of material.

    7 In a trial of this kind where you're taking

    8 material from one part of the world and making it

    9 available for judges in another part of the world, it

    10 is frankly unrealistic to think that each and every

    11 piece of material has got to be here in person before

    12 it can be of value to the Tribunal. That's

    13 unrealistic.

    14 At the moment, I would rather not --

    15 JUDGE BENNOUNA: (Interpretation) Mr. Nice, if

    16 I understand your position well, you're saying that

    17 there are documents taken from other cases in the same

    18 Tribunal regarding certain facts. Even if the accused

    19 has no knowledge of it, and the accused doesn't

    20 necessarily have to know everything that happened, does

    21 that mean that, in your view, the Defence may call

    22 those witnesses to cross-examine them, if they consider

    23 it necessary? You are satisfied with the documents

    24 produced in another case, and then the Defence, for its

    25 part, could they call the same witnesses to

  61. 1 cross-examine them?

    2 MR. NICE: First of all, Your Honour, I think

    3 that the documents we are concerned with primarily are

    4 witness statements that are taken not in other cases

    5 but taken by the Tribunal generally. They may have

    6 been taken specifically for this case and they may have

    7 been taken for another case, but they've been taken by

    8 investigators of the Tribunal.

    9 What we say is that they should be available

    10 to be read and that it shouldn't be required of us to

    11 call these witnesses to the Tribunal simply on the

    12 basis that Mr. Kordic has no knowledge of this sort of

    13 detail.

    14 We refer back to what we hoped was a correct

    15 reflection of the civil system as practised in some

    16 countries, and in particular in France.

    17 JUDGE BENNOUNA: (Interpretation) No. My

    18 question relates to any kind of documents. They may be

    19 statements or the transcript. But what about the right

    20 to cross-examine? That is the specific question, the

    21 right to cross-examine of the Defence.

    22 Supposing that, as far as you were concerned,

    23 you would produce statements which could be read. You

    24 do not necessarily have to have them reread, in a

    25 sense, in the Trial Chamber, but what about the right

  62. 1 to cross-examine? What would you do with that?

    2 MR. NICE: If you'll recall, Your Honour, the

    3 way we dealt with that on the previous occasion and the

    4 position we adopt today is that the right to

    5 cross-examine is not a right to cross-examine the

    6 observer or the hearer of any particular event. This

    7 material can be brought before the Chamber as evidence

    8 by the investigator in the way that we propose. The

    9 investigator can be cross-examined, he being the

    10 witness. He can be asked questions about the way in

    11 which statements are taken. He can be asked questions

    12 about what was known about the particular witnesses.

    13 He can be asked questions, if such questions can be

    14 founded, about any inconsistencies between statement

    15 and statement. On the basis of that cross-examination,

    16 the Chamber would be well positioned to decide whether

    17 the hearer or the observer should then be --

    18 JUDGE BENNOUNA: (Interpretation) No, excuse

    19 me. I'm afraid we have to go down to the facts, sir.

    20 We've read all this, and with a great deal of

    21 interest. It's an interesting legal discussion and an

    22 important one.

    23 But the Defence says that this investigator

    24 is telling us hearsay evidence, it was not he who did

    25 the enquiries, they were collected by others, and, "We

  63. 1 have the right to verify how those statements were

    2 collected." That is what the Defence is saying. What

    3 are you going to respond? Anyway, they are going to

    4 tell us themselves.

    5 Clearly, the fact that the accused has no

    6 knowledge is not an argument in itself, but the fact

    7 that it is hearsay and that they want to verify it

    8 themselves, what this investigator is saying, what are

    9 you going to respond to that? After all, this is a

    10 fundamental right.

    11 MR. NICE: If your concern or if the concern

    12 is that the investigator didn't take any, bar one, of

    13 the particular witness statements, that of course can

    14 easily enough be remedied because we can call the other

    15 investigators who can therefore say what they can about

    16 the taking of the particular witness statements.

    17 As to whether the individual named in the

    18 witness statement, the person who saw or heard

    19 something, is to be cross-examined, I revert to our

    20 previous position that there is no enshrined right to

    21 that. That is a misunderstanding and a misreading of

    22 the Rules. The witness can produce the statement. The

    23 witness can be cross-examined.

    24 As I understand it from my time here, hearsay

    25 is an alien concept known only to one or two

  64. 1 jurisdictions and is not a concept of general

    2 application in the civil system, applying different

    3 tests and in different ways, and if one sets aside and

    4 carves out from one's mind the prejudgements that may be

    5 there, because of years of working with hearsay, and

    6 one advances on the basis that material of any kind is

    7 capable of being evidence, thus the investigator in

    8 this case is capable of producing a witness statement,

    9 much as he is capable of producing a map or, in an

    10 appropriate case, the revolver or item of clothing, the

    11 Chamber is able, under its Rules, to consider the

    12 statement that he produces because it is capable of

    13 being evidence. The Chamber has to make its decision

    14 whether to consider that material.

    15 What we have suggested is that not only is

    16 the Chamber in a position to consider that material,

    17 but it can take a measure of control of proceedings by

    18 deciding not only that it can decide at some stage

    19 whether to attend to the witness statement's material,

    20 but it can actually decide whether that witness is one

    21 who ought to be called, thus doing, in large part, the

    22 job that the investigating judge does in some civil

    23 systems and thus getting over the roadblock that the

    24 Defence are putting in the way of this trial being

    25 conducted in a swift and compact way.

  65. 1 What we've envisaged is that the investigator

    2 could be asked questions, if there are any that occur

    3 to the Defence as appropriate to ask him. I'm so

    4 sorry. The witness could be asked questions. We have

    5 no difficulty in calling the other investigators to

    6 answer particular questions about particular

    7 individuals.

    8 But if at the end of that exercise, and I

    9 come back, for example, to the page I picked pretty

    10 much at random, if at the end of that exercise, looking

    11 at paragraph 56, there was absolutely no reason to

    12 doubt the broad accuracy or, indeed, the detailed

    13 accuracy of what can be found at tab 16 and tab 10, or

    14 to take note of the next paragraph, which is perhaps

    15 similarly expressed, tab 16 and tab 10 again, or tab 9

    16 at the foot of the page, if the Tribunal, having heard

    17 what the Defence raises, concludes that there is no

    18 good reason for doubting the broad accuracy of those

    19 people on those topics, then it could say to itself,

    20 "This is evidence. It's been produced to us in the

    21 form of a transcript or in the form of a statement. We

    22 see no reason to devalue it to nothing or, indeed, to

    23 devalue it at all, and we will attend to it."

    24 On my understanding, that is what happens in

    25 the civil systems. The judges, perhaps first the

  66. 1 examining judge and then the trial judge, if he's

    2 sitting with a jury and perhaps with some other judges,

    3 makes the decision alone or collectively as to which

    4 witnesses should be called, bearing in mind the

    5 overarching interests of the due administration of

    6 justice, which has to reflect the time taken by due

    7 process, and the judge at the trial can have read out,

    8 for incorporation in the decision-making process, parts

    9 of written statements, and providing they are read out,

    10 they become evidence in the case.

    11 JUDGE ROBINSON: Mr. Nice, there is a United

    12 Kingdom Act, the Criminal Evidence or Criminal Justice

    13 Act, which deals with the situation of a person's

    14 statement being read into evidence when that statement

    15 has been collected abroad. The particular case that I

    16 have in mind, I'm sorry I don't have it here, because

    17 it wasn't clear to me that we were going to deal with

    18 it today. That particular case dealt with the argument

    19 as to whether what the Prosecution sought to do was

    20 consistent with the particular Article in the European

    21 Convention that guaranteed the right to examine and

    22 have examined, in the same circumstances as the

    23 Prosecution, witnesses. The English Act sets out a set

    24 of circumstances in which the statement can be

    25 admitted, and interestingly one of them is whether, in

  67. 1 the absence of the right to cross-examine, because

    2 there would be no right to cross-examine, the statement

    3 would be read, whether in the absence of that right,

    4 there would be available to the Defence some means of

    5 testing the evidence, of objecting to it, some means of

    6 contradicting it.

    7 In that particular case, the Court concluded

    8 that the statement should not be read because the

    9 essential requirement of the Act, which was broadly

    10 based on admitting the evidence in the interests of

    11 justice, that requirement was not met.

    12 But I point to it because that's an Act

    13 coming from a country with which we are very familiar,

    14 and I was very attracted to the importance that the Act

    15 attached to the possibility of the Defence being able

    16 to contradict the statement in the absence of

    17 cross-examination.

    18 MR. NICE: Well, in this case -- first of

    19 all, I must look that case up to see what guidance it

    20 can provide us, and I hope we can do that overnight.

    21 But in this case, if the Chamber were to

    22 decide that particular witnesses should be read because

    23 the Defence, in the American terminology, had not made

    24 a sufficient showing of cause why they should not be

    25 read, that would not, of course, restrict the Defence

  68. 1 from calling evidence themselves to the contrary effect

    2 at a later stage, if it became available to them. The

    3 only thing that might trouble the Chamber in those

    4 circumstances would be if they hadn't revealed their

    5 knowledge of contradictory material, thus to sharpen

    6 the issue of whether the witness should be read at an

    7 earlier stage or not.

    8 So there's nothing to stop them contradicting

    9 it by other evidence, and the Chamber might think that

    10 the Defence, in this setting, has nothing to gain by

    11 hiding what material it would have to contradict these

    12 witnesses from the Chamber, and indeed, in raw terms,

    13 would be under a duty to let them know at this stage

    14 what material there is to contradict these witnesses.

    15 We see from their response that there is none.

    16 So I don't know if this is the answer to your

    17 question. I hope it is. A, they can contradict it, if

    18 there's material available, but, B, as things stand at

    19 the present, it would appear there is none and no

    20 reason to doubt these witnesses.

    21 Since you refer to the Great Britain, or the

    22 England and Wales jurisdiction, it is of course helpful

    23 for us all to remember that in that jurisdiction, there

    24 is now a presumption that written statements taken

    25 broadly in this way will become evidence in a case

  69. 1 unless there is specific notice given that the witness

    2 needs to be called.

    3 Of course, in that jurisdiction, with which

    4 we are all a bit more familiar, although Defence can,

    5 if they wish, looking at a long list of 100 or 200

    6 witnesses, demand their attendance, each and every one

    7 of them, they will be in for some very unpleasant

    8 surprises if they call witnesses wholly unnecessarily,

    9 continuity witnesses or witnesses whose evidence is

    10 noncontroversial. They may even find themselves

    11 subject to penal sanctions and costs in our English

    12 courts, for the development of the legal system in that

    13 country, and it may be elsewhere, is in line with our

    14 desire in this Tribunal, that avoidable expense and

    15 energy should not be wasted when things are not

    16 genuinely in issue.

    17 So I don't know if I answer your first

    18 question satisfactorily, but I hope I properly borrow

    19 the practice coming from that country for another

    20 purpose.

    21 Of course, there's a lot of complaint made by

    22 the Defence about these witness statements and whether

    23 they are taken by the investigators or, in certain

    24 other cases, taken in respect of people, I think, when

    25 they were leaving refugee camps and so on.

  70. 1 (Trial Chamber confers)

    2 JUDGE MAY: Yes.

    3 MR. NICE: A lot of complaint is made about

    4 these statements, and they picked on one or two

    5 particular points in the evidence so far. But the

    6 Chamber may reflect on the evidence you've heard so

    7 far, and I think in all material respects, witnesses

    8 have said what is contained in their statements, and it

    9 is fanciful to think that witnesses are going to be

    10 just making up wholly fictitious stories about attacks

    11 on the ground. That is not to say that where there is

    12 a specific and discreet issue about whether a village

    13 was defended, who were the soldiers attacking it and so

    14 on, or I suppose even whether it was an attack as

    15 opposed to a mere battle between equal sides or

    16 whatever is being contended, not to say that those may

    17 not be issues properly before the Chamber. That's a

    18 different issue. But that apart, witness statements

    19 have nearly always been matched by the evidence that is

    20 being given by the witnesses and the matters picked on

    21 by the Defence are either explicable, trivial, or

    22 outside that general proposition.

    23 The Chamber is left with this -- it's not a

    24 dilemma, in our respectful submission -- is left with

    25 this position, that if these defendants in this case

  71. 1 are allowed to say, "We will admit nothing," I don't

    2 blame them for doing it or trying to do it, understand

    3 that, providing they don't couple it with protestations

    4 of co-operation or genuine desire to have the case over

    5 quickly, that that can't be their true state of mind.

    6 If the defendants in this case are allowed to say, in

    7 respect of matters of which they have no knowledge, the

    8 matter is in dispute notwithstanding a run of witness

    9 statements that go to establish it, why then that is

    10 followed in this Tribunal for other cases of this size,

    11 and the consequences are, I'm afraid to say, obvious.

    12 JUDGE MAY: Well, I think we've got that

    13 point.

    14 MR. NICE: And I understand, simply to make

    15 the point, that there are other cases -- for example,

    16 in your sister Tribunal -- where things are well

    17 capable of proceeding entirely otherwise and where huge

    18 masses of facts can be admitted, the case proceeds on

    19 the single issue, which might, indeed, be the single

    20 issue in this case. Given the underlying crimes,

    21 what's the connection of the defendant, which is what

    22 the issue is here.

    23 JUDGE MAY: Looking at the dossier for a

    24 moment, and breaking it down into its constituent

    25 parts, you've got the witness statements, first of all,

  72. 1 which are heavily disputed. You've then got the

    2 transcripts of evidence of, I think, three witnesses.

    3 MR. NICE: Yes.

    4 JUDGE MAY: The point made by the Defence in

    5 relation to them is that there are no exceptional

    6 circumstances which Aleksovski mentioned to admit those

    7 transcripts. What do you say in answer to that?

    8 MR. NICE: Exceptional circumstances are the

    9 fact that these may be issues not shown to be truly in

    10 dispute; that there is therefore no need for the

    11 witnesses, in truth, to be bothered on such issues as

    12 the Chamber may decide this proposition is good. In

    13 those circumstances, just as with the statements

    14 themselves, it is material you can properly consider

    15 and read.

    16 JUDGE MAY: The next series of items which

    17 are disputed are the reports, contemporary reports,

    18 some of them, of forensic and other witnesses. What is

    19 objected to is that they should be subject to the usual

    20 procedures of the Trial Chamber, of the Tribunal, in

    21 relation to expert evidence. What do you say in

    22 relation to that?

    23 MR. NICE: We are already pursuing a very

    24 broad policy on both sides in relation to documents and

    25 reports from monitors -- reports, indeed, from

  73. 1 Mr. McLeod, although he came to speak to it himself --

    2 all sorts of reports are being referred to. These

    3 reports, as contemporaneous documents, are documents

    4 likely to be accurate and reliable. There is no good

    5 ground shown for challenging their process or

    6 conclusions, and until there is, they should be

    7 admitted into evidence.

    8 If, on any particular or discrete issue, some

    9 controversial matter is identified, then we might

    10 respond differently. But at present it would be a

    11 nonsense -- if one goes to tab 19, where I think all

    12 sides are represented, insofar as it's possible to

    13 refer to sides -- it's a nonsense to think that

    14 somebody has got to come along and support each and

    15 every word of this report in the absence of good reason

    16 to the contrary. The report is a document that this

    17 Chamber can consider.

    18 And, if I may respectfully say so, isn't this

    19 the way that the Chamber's mind, collectively and

    20 individually, would work? If such documents are

    21 admitted, if in the course of cross-examination of the

    22 reporting investigator, Raatikainen, nothing is

    23 advanced to show why this document may be unreliable,

    24 and if at no other stage in the Prosecution case, to

    25 any witness to whom it could be raised, there is no

  74. 1 question showing why this report may be unreliable,

    2 then the Court would probably be minded to accept it

    3 for full value, insofar as it would be helpful at the

    4 stage of judgement.

    5 If, in the course of the defence, something

    6 new emerged that could have been advanced earlier, the

    7 Chamber might be critical of the Defence for not having

    8 raised it earlier. If something emerged that could not

    9 reasonably have been raised earlier, it would not be

    10 critical of the Defence. But in either case, it might

    11 be minded to allow the matter to be dealt with, insofar

    12 as it could then be dealt with, in rebuttal.

    13 But absent the need for rebuttal evidence,

    14 the material which may well, in reality, be

    15 noncontroversial, would go in and would go in swiftly.

    16 JUDGE MAY: Thank you.

    17 MR. NICE: The death certificates: I find it

    18 hard to think that they are, in truth, controversial.

    19 Of course, there is always the potential for

    20 approaching us and negotiating any particular and

    21 identifiable problems about particular exhibits or

    22 documents; but otherwise, I really cannot see the

    23 Chamber's time should be taken with proving each and

    24 every one of these deaths. Likewise for all the

    25 photographs.

  75. 1 JUDGE MAY: Thank you.

    2 MR. NICE: I may be in a position tomorrow

    3 better to suggest -- supposing the Chamber were to come

    4 to the conclusion that there is no way that it can use

    5 this dossier in a positive way, and that it's simply

    6 got to be an old-fashioned, slog-it-out battle, then I

    7 may be in a better position tomorrow to identify the

    8 bare minimum of witnesses that I would forecast needing

    9 to call. But to some extent, I'm in a difficulty. One

    10 of the witnesses, an important witness, is at present

    11 not disposed to come, and he is an above-the-line

    12 witness, on our earlier formulation. It would be

    13 necessary, if he remains unwilling to come, and if it's

    14 necessary to do things by calling evidence on all

    15 topics, to substitute for him others who could cover

    16 the same ground.

    17 Can I, before I sit down, and not seeking to

    18 overload anyone with procedural alternatives that will

    19 confuse, nevertheless remind you of other ways of

    20 dealing with this problem, without recommending them

    21 particularly.

    22 One is, of course, that I think the Chamber

    23 can itself probably take evidence elsewhere. Two --

    24 this is really in relation to unwilling witnesses --

    25 two, it can take evidence by an appointed officer in

  76. 1 the form of deposition or the equivalent. And although

    2 this may not be appropriate at this stage of this case

    3 -- or it may not be appropriate at any stage of any

    4 case, but it's worth thinking about -- witnesses in

    5 Bosnia can always be seen by the Defence investigator,

    6 but only on terms that they notify us when they are

    7 going to see those witnesses, Prosecution witnesses.

    8 Of course, such visits, if made, whether made on their

    9 own or on notice to us and in the presence of our

    10 investigators, could readily enough identify whether

    11 there is anything in issue at all. All saving the

    12 Tribunal's time -- well, saving the Chamber's time,

    13 although imposing work on others.

    14 Those are probably things to have in the

    15 backs of your minds rather than elsewhere, because

    16 there are limits to how many processes we can explore,

    17 given the reaction that we've received from the Defence

    18 in this case, which is at the stage it is. At this

    19 stage, we would invite to you say that the Chamber now

    20 knows, from the Defence, what are the real issues; from

    21 that, it will be able to identify the issues upon which

    22 evidence should be led, leaving it to the Defence to

    23 establish what other issues, if they're not happy with

    24 the Chamber's ruling, should be the subject of evidence

    25 here, and the Chamber should be prepared to read the

  77. 1 balance of the material, or, alternatively, to read it

    2 in the summarised form of the report.

    3 Thank you.

    4 JUDGE MAY: Yes, Mr. Smith. You've got about

    5 ten minutes now, and we'll hear you tomorrow.

    6 MR. SMITH: Thank you, Your Honour.

    7 It is really, in our judgement, and I think I

    8 must say it at the outset, quite appalling to hear the

    9 argument made by the Prosecutor. The right of

    10 confrontation, in order to determine whether material

    11 presented is true, is accurate, in order to test the

    12 credibility of witnesses, in order to test their powers

    13 of observation, in order to determine whether there is

    14 matter to be challenged, is the heart of the rights

    15 assured to a defendant in a criminal proceeding, both

    16 in the civil law and in the common law, and in the

    17 jurisprudence of the European Court of Human Rights,

    18 which is being applied both to civil law and common-law

    19 systems.

    20 Our papers reflect these rights, and the way

    21 in which they have developed, over hundreds of years.

    22 They reflect the trend in the European Court of Human

    23 Rights law -- and I will discuss that at some length

    24 tomorrow -- particularly because the language employed

    25 in that convention is exactly, or virtually exactly,

  78. 1 the same language as is employed in the international

    2 covenant that was referred to by Judge Robinson earlier

    3 and is the same language, exactly the same language,

    4 that appears in the Statute of this Tribunal as a

    5 guarantee of minimum rights of due process to

    6 defendants appearing before this Tribunal.

    7 The case law of the European Court of Human

    8 Rights involves cases against organised crime, cases

    9 against terrorists, cases that have equal societal

    10 significance in terms of the rights of the State and

    11 the rights of the public. And those cases uniformly

    12 would reject, as I will explain in greater detail

    13 tomorrow, the use of this dossier, of the witness

    14 statements, in evidence, without witnesses, and the use

    15 of reports of investigators, even where investigators

    16 are available to be cross-examined. And you are not

    17 hearing about that case law from the Prosecutor, and

    18 you're not hearing about the evolution in the civil law

    19 and the requirement that an investigating judge take

    20 matters in sworn testimony, subject to the laws of

    21 perjury.

    22 The suggestion, for example, that the

    23 ability, if it did exist, and I suspect the persons

    24 would not agree, but suppose witnesses for the

    25 Prosecution were to agree to be interviewed by the

  79. 1 Defence, those statements to the Defence, which the

    2 Prosecution would have us use as our right of

    3 confrontation to develop whether there is an issue,

    4 would not be sworn, they would not be subject to the

    5 laws of perjury, and quite to the contrary, from what

    6 my learned colleague has said, there has been material

    7 divergence. Not once, not twice, but over and over

    8 again.

    9 The genius of the criminal law is

    10 understanding that something is not God-given truth

    11 just because it is said to be the case. That is what

    12 the whole right of confrontation is about. That is

    13 what we have spent hundreds of years developing the

    14 right of confrontation for. Defendants are not

    15 obligated to provide cause, specific to each fact or

    16 each document or each witness, before they get the

    17 right of confrontation. The right of confrontation is

    18 the vehicle by which --

    19 JUDGE MAY: I wonder if you're right about

    20 this. Of course, historically, the right of

    21 confrontation is a most important right for an accused

    22 person in a criminal trial. We understand that. So

    23 therefore, if there's a matter which is particularly in

    24 issue, if your client is mentioned in a particular way,

    25 then it's most important that the evidence is given

  80. 1 properly and he has the right to cross-examine about

    2 it.

    3 But if there are other matters about which

    4 there so far seems to have been little controversy and

    5 little cross-examination -- for instance, that there

    6 were a number of people killed at a particular location

    7 -- should the Defence have the right to insist upon

    8 the presence of witnesses just to see whether there is

    9 some point that they can raise, when so far there has

    10 been very little controversy about it?

    11 Besides the interest which you mentioned,

    12 there is the public interest in an expeditious and

    13 fair -- and that means fair to both sides -- trial.

    14 And that's got to be put in the balance, hasn't it?

    15 Therefore, why is it unreasonable to require the

    16 Defence to indicate what prejudice is caused in these

    17 circumstances by witnesses to these matters having

    18 material put before the Tribunal in different ways?

    19 What is the unfairness to your client in the particular

    20 case? That is the issue that I would find it helpful

    21 for you to address. Of course, I understand the point,

    22 the general point, the general principle. But it is

    23 the facts of the case that have got to be addressed.

    24 MR. SMITH: Let me do that briefly, Your

    25 Honour, now, and we will address that in greater detail

  81. 1 in the morning -- or in the afternoon, since we have

    2 afternoon sessions both this week and next.

    3 The first thing to understand, and the

    4 grounding point in the Defence argument, is that the

    5 alleged attacks, whether as to killing of persons,

    6 wounding of persons, destruction of property, plunder

    7 of property, in each of the villages alleged in the

    8 indictment, and of which Tulica is one example, are

    9 elements of the offence that must be proved by the

    10 Prosecutor in addition to his proof that the defendant

    11 is linked, either because he directly participated in

    12 the attacks, or he is linked because of other facts and

    13 circumstances which lead to vicarious liability, either

    14 under an aiding-and-abetting theory under 7(1) or

    15 command responsibility under 7(3). So from the Defence

    16 point of view, every single attack alleged as a war

    17 crime is fundamentally important, because if it is not

    18 proved, the defendant cannot be guilty, even if he were

    19 there in person, much less if there were vicarious

    20 linkage.

    21 So that's the first point, and Tulica is

    22 alleged, counts 7 to 13 and 30 to 39, injury and

    23 property damage.

    24 JUDGE MAY: But when you say "proved," do you

    25 mean proved by having a witness standing up and proving

  82. 1 every element, a series of witnesses? Is that what you

    2 envisage?

    3 MR. SMITH: Yes, Your Honour. If there is a

    4 necessary element of a crime, the Prosecutor has the

    5 burden of going forward, the Prosecutor has the burden

    6 of proof, and there is a presumption of innocence.

    7 JUDGE MAY: Of course. Of course. But you

    8 are saying, so that I understand the position, that all

    9 has to be proved by oral evidence: Every document's

    10 got to be proved by a witness, or the witness comes

    11 here and gives evidence directly. Is that what you

    12 say?

    13 MR. SMITH: There are obviously rules about

    14 hearsay; there are obviously rules, as Your Honours

    15 have interpreted them, about foundations for

    16 documents. But the wholesale use of witness statements

    17 without witnesses, or prior testimony without

    18 exceptional circumstances, as proposed by the

    19 Prosecution, or investigators' reports of what

    20 witnesses said, is a completely different matter than

    21 the normal accommodations incident to any criminal

    22 proceeding, in terms of whether every single piece of

    23 evidence must come from the mouth of an individual. My

    24 colleague, Mr. Stein, will address this in greater

    25 length tomorrow.

  83. 1 I hope I have come close to answering Your

    2 Honour's question, and I perhaps ought to close today

    3 by simply saying that the European Court of Human

    4 Rights has faced these issues over and over and has a

    5 developed case law on the question of, quote, examined

    6 and have examined, close quote, and it has faced the

    7 question of the countervailing public rights and needs

    8 in the context of organised crime, in the context of

    9 terrorists, and it has recognised that expediency

    10 cannot override the fundamental rights of the

    11 defendant. They have struggled in the case law, they

    12 have struggled with this issue manfully; and the case

    13 law, in our judgement, is clearly decisive that this

    14 wholesale use would not be permissible.

    15 JUDGE MAY: But the other issue is the scale

    16 and the scope of cases of this sort. Of course, the

    17 case law is important, but none of them, none of those

    18 cases deal with an international crime of this

    19 particular dimension and magnitude, I suspect.

    20 MR. SMITH: I think Your Honour may be

    21 correct, although cases involving organised crime are

    22 frequently very complex and involve a great many facts

    23 and witnesses, depending on the case. But I will plan

    24 to start my argument on the merits dealing with the

    25 question whether there really is a problem at this

  84. 1 stage in the case, and whether we haven't already

    2 gotten to the point, by grinding down the rough edges

    3 with the tools already available to the Chamber, where

    4 this case can be tried efficiently without trampling on

    5 the rights of any of the parties.

    6 Shall we commence in the morning, Your

    7 Honour?

    8 JUDGE MAY: Tomorrow.

    9 Mr. Nice, you've got one witness who will be

    10 short; is that right?

    11 MR. NICE: Yes, he will be very short, as far

    12 as I'm concerned. He is the witness who took the

    13 statement from Dr. Mujezinovic that lies at the root of

    14 all sorts of complaints by the Defence, and therefore

    15 he had better be called.

    16 JUDGE MAY: Very well. We'll hear him at

    17 half past 2.00 and then go on with the argument.

    18 --- Whereupon the hearing adjourned at

    19 5.15 p.m., to be reconvened on

    20 Thursday, the 15th day of July,

    21 1999, at 2.30 p.m.