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
12 THE WITNESS: Yes, Sir.
13 JUDGE MAY: Yes, Mr. Sayers.
14 WITNESS: CHARLES MCLEOD (Resumed)
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
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
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
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
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
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
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
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.
1 Q. Do you have any recollection of what those
2 elements were, Mr. McLeod, the elements that weren't
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
25 JUDGE MAY: Has the witness got a copy of the
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
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
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
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.
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
25 A. Yes.
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
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
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
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
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
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
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
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
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.
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
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
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
1 I've indicated, his interpreter actually took over the
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
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
1 belonging to another ethnic group for your talks,
2 except for always using members of the same ethnic
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.
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
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.
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.
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
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
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
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
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
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
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
1 of Professor Bianchini and on the part of the
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
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
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?
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
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)
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
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.
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.
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
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.
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
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.
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
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;
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
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
13 A. I think, actually, it would be fair to say
14 that there was equal concern for prisoners on both
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
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
1 appeared to have was a coordinated effort, in a number
2 of places at the same time, as opposed to one isolated
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?
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
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
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
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
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;
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.
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
23 Well, I'm about to -- yes, Your Honour. I'm
25 JUDGE MAY: You're coming to a point?
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
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
24 MR. SCOTT: Your Honour, there is extensive
25 questioning of this witness's credibility and the
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
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,
1 Your Honour, that is at G1, appendix G1 to Mr. McLeod's
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
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
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,
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
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,
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
8 MR. SCOTT: No further questions, Your
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
24 JUDGE MAY: Mr. McLeod, thank you for coming,
25 and also coming back to the International Tribunal to
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
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
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
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
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.
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.
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
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
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
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
1 matters can be admitted. There are maps and so on that
2 are admitted, but they don't take us very much
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
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
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
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
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
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?
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
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
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
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
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
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
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
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
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
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.
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
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
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
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
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
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
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
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.
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
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
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,
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
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
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
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
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
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
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
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,
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
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
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
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
1 properly and he has the right to cross-examine about
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
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
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
1 every element, a series of witnesses? Is that what you
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
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.
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
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
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.