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  1. 1 Monday, 19th July, 1999

    2 (Open session)

    3 (The accused entered court)

    4 --- Upon commencing at 2.33 p.m.

    5 THE REGISTRAR: Good afternoon, Your

    6 Honours. Case number IT-95-14/2-T, the Prosecutor

    7 versus Dario Kordic and Mario Cerkez.

    8 JUDGE MAY: Mr. Kovacic, I think it was for

    9 you to address us on the dossier.

    10 MR. KOVACIC: Thank you, Your Honour.

    11 (Interpretation) First of all, I consider it

    12 necessary to point out that I have submitted a brief in

    13 writing in accordance with your ruling, and the main

    14 arguments regarding procedure, on the basis of which we

    15 are opposed to the proposal of the Prosecution to enter

    16 the Tulica file into evidence as a whole, are contained

    17 in that brief. For that reason, I shall not go back to

    18 those points so as to avoid repetition. Similarly,

    19 Mr. Kordic's Defence has presented the arguments, which

    20 we fully ascribe to, and I should just like to add a

    21 few points which I feel need to be mentioned.

    22 My learned friend, the Prosecutor, at the

    23 beginning of his statement, informed us that he was

    24 disappointed by the fact that the Defence does not wish

    25 to assist the Prosecutor in presenting the case. I

  2. 1 must say that that is a totally irrelevant argument.

    2 Obviously, it is not the job of the Defence to assist

    3 the Prosecution in presenting its case. We are two

    4 opposing parties and our interests differ.

    5 Secondly, that argument reminds me of another

    6 one. It would be rather like if the Defence were to

    7 object that the Prosecutor did not consult the Defence

    8 when it was amending the indictment at a time when the

    9 Defence had already been identified and was actively

    10 involved in the case.

    11 All I wish to say is that this is a

    12 completely erroneous approach and, hence, perhaps some

    13 of the reasons for such an approach. I think that the

    14 key issue here is not what the Defence wants. The key

    15 issue is whether the Rules of Procedure and Evidence

    16 prescribe or permit a certain method of production of

    17 evidence. Of course, the answer is that the Rules

    18 regulate, in some detail, the method of the production

    19 of evidence, and also we have certain sources of law,

    20 in practice and in theory, and also case law within

    21 other jurisdictions, and I am referring to both

    22 systems, the civil law and the common law system.

    23 Therefore, in my submission, the Court should

    24 determine, after this extended debate on the subject,

    25 primarily on the basis of the provisions contained in

  3. 1 the Rules of Procedure and Evidence combined with a

    2 necessary degree of recourse to other case law which

    3 the Court deems justified.

    4 I think that during the debate, it has been

    5 stated innumerable times that the Rules of this

    6 Tribunal and international law, in general, without any

    7 doubt, protect the right of the Defence to

    8 cross-examination of each and every witness and the

    9 right of the Defence to critically examine any other

    10 produced kind of evidence. So far, the practice of the

    11 Tribunal shows that the kind of procedure being

    12 suggested by the Prosecution has no where been

    13 accepted.

    14 In the course of the discussion, the Defence

    15 has submitted, and the Prosecution also in its first

    16 submission, the way in which ex-Yugoslav law regulated

    17 examination of witnesses. I should like to summarise

    18 those procedures as follows: In the Law on Criminal

    19 Procedure in the former Yugoslavia and the present-day

    20 states that have emanated from that system have more or

    21 less taken over the same regulations or made only minor

    22 amendments to them. The general principle was that the

    23 witness must always testify directly in court. Let me

    24 not go into the principles on which this rule is based,

    25 but it was always a rule that the Trial Chamber has to

  4. 1 see that witness because of the principle on direct

    2 examination and because the Court must be able to form

    3 its own impression about every witness.

    4 Reading of witness statements in court in the

    5 former Yugoslavia and in the newly formed states was a

    6 rare exception, and without, again, going into any

    7 details, even when those statements were read, the

    8 statement that would be read would be the one that he

    9 made before the court investigator, so this is a

    10 judicial body and not an investigative body, so the

    11 statement is read in the form envisaged by the Law on

    12 Criminal Procedure and a statement given under oath.

    13 According to the practice established in our courts,

    14 statements could not be read under any other

    15 circumstances, nor could anyone testify about a witness

    16 who told him something.

    17 Let me repeat once again, though this has

    18 also been mentioned, the Prosecution is offering here a

    19 court investigator as a substitute for the witness, and

    20 the investigator is described as a court investigator,

    21 though that is not correct because he is the

    22 Prosecution investigator, so by definition, he is

    23 attached to one party in the proceedings and, by

    24 definition, he cannot be an unbiased and independent

    25 authority.

  5. 1 I should like, furthermore, to draw attention

    2 to a practical problem that we may be confronted with

    3 if we were to accept the Prosecutor's proposition, that

    4 instead of examining the witness, we hear the

    5 investigator and even documents be tendered through

    6 that investigator; namely, we would, without any doubt,

    7 come across the problem of equality of arms or the

    8 equality of parties and the means at their disposal.

    9 What do I mean? The Prosecution has used for

    10 its investigations its investigators' division, and we

    11 know from this case and from others, the team of

    12 prosecutors, that is, our colleagues on the opposite

    13 side, did not speak to the witnesses, or if they did,

    14 they did so on the basis of the statements provided by

    15 the investigators.

    16 Contrary to that, the Defence and the

    17 attorneys representing the accused here also acted as

    18 investigators. In our specific case, the Cerkez

    19 Defence does have an investigator as a member of the

    20 team who has examined a certain number of witnesses,

    21 but let me mention that I personally have interviewed

    22 far more witnesses than my investigator.

    23 Let me not dwell on the implications because

    24 the picture would be a caricature, because if the

    25 Prosecutor calls the investigator who is expected to

  6. 1 recount what the witness told him, then, because of the

    2 equality of parties in the proceedings, perhaps we

    3 could find ourselves in the position that I should be

    4 called as a witness to tell Your Honours what I did as

    5 an investigator. Whether my colleague would then

    6 cross-examine me, I don't know, but in any event, this

    7 would be absurd, or at least we would not have equality

    8 of parties or equality of arms for both parties.

    9 If the Rules had envisaged any opportunity

    10 which we could have reasonably identified in the course

    11 of the preparations and if the Defence could have

    12 concluded from them that, in the course of the

    13 preparations, the Defence should have had independent

    14 investigators, we either were not able to read the

    15 Rules or we didn't have enough foresight, but, in any

    16 event, this never occurred to the Defence.

    17 There is no denying that the burden of proof

    18 lies with the Prosecutor. It is the Prosecution that

    19 has issued the indictment and defined it; it is the

    20 Prosecution that has to produce the evidence if he has

    21 it. If he doesn't have the evidence, then there is no

    22 case. That is put in very simple terms. We are all in

    23 justice long enough to have witnessed cases when there

    24 was no case and other cases which had a case, thanks to

    25 the evidence, but it is impossible to claim that there

  7. 1 is a major case and no evidence. Therefore, the

    2 evidence that the Prosecutor has must be presented here

    3 in court, and the Court, the Trial Chamber, must be

    4 able to see those witnesses. Only then, that will be

    5 in accordance with the general principles of

    6 international criminal law and, of course, the Rules of

    7 this Tribunal. The Prosecutor has that responsibility,

    8 and he must acquit himself of that responsibility.

    9 In this way, offering dossiers and the

    10 mediation of the investigator, in actual fact, the

    11 burden of proof is being shifted to the Defence but

    12 also to the Trial Chamber, and that clearly is not the

    13 task of the Defence or the Trial Chamber. Secondly, in

    14 this way, the OTP is actually suggesting that, despite

    15 the Rules, lower standards be applied in the production

    16 of evidence than those applied in all civilised

    17 systems, both civil law and common law systems.

    18 In our deep conviction, this International

    19 Tribunal should serve as a model court which will and

    20 should contribute to establishing higher standards in

    21 criminal proceedings rather than opening the

    22 possibility for the application of lower standards than

    23 those existing in other courts.

    24 The Prosecution has mentioned here the

    25 principle of a fair trial and the right to a fair

  8. 1 trial, as well as the principle of economy or

    2 efficiency of the proceedings. It is our belief that,

    3 combined with other principles that are applied in the

    4 proceedings, those principles have priority. I think

    5 there is no need to argue that the principle of a fair

    6 trial certainly has precedence over expeditiousness.

    7 We are all at times frustrated by the complications and

    8 waste of time in the course of the proceedings, but

    9 that does not mean to say that we have the right to

    10 violate the principle of a fair trial for the parties,

    11 not only for the accused but also for the parties and

    12 for the Trial Chamber.

    13 All in all, I think that the Prosecutor

    14 should have had all this in mind in the course of the

    15 investigation and when he issued the indictment, and

    16 especially when the indictment was amended, because we

    17 now find ourselves in a situation when an attempt is

    18 being made to remedy something that was not done when

    19 it should have been done.

    20 Once again, and if I may, I should like to

    21 underline the question of stipulation. This is a

    22 tested mechanism, regardless of differences that do

    23 exist from one country to another, but basically all of

    24 us jurists understand one another, regardless of the

    25 systems we come from. We know what stipulations are;

  9. 1 the establishment of undisputed facts by both parties.

    2 I must say that stipulations in this case

    3 were of a minimum degree. Maybe they are not even

    4 worth mentioning, but not because of the Defence and

    5 the lack of cooperation on the part of the Defence but

    6 because the Defence, when certain points were proposed

    7 for stipulation, the Defence could not reasonably take

    8 a position, except on a few peripheral matters, because

    9 the process of discovery had not been completed. It is

    10 not possible to expect the Defence to be cooperative

    11 with respect to stipulations if, at that point in time,

    12 the Defence does not have all the materials at its

    13 disposal.

    14 I must recall something that I said when we

    15 started the discussion about the Tulica dossier. I

    16 myself made some proposals when the Prosecutor made

    17 their second appeal for the admission of facts. I

    18 admitted some, I rejected others, but I myself proposed

    19 certain changes so that we could then discuss those

    20 revised definitions, but I never received an answer.

    21 Let me just say a word or two about the

    22 reports as a part of the Tulica dossier. Please do not

    23 misunderstand me, but I should like to use an example

    24 that we had recently to avoid excessive theorising and

    25 in order to be more practical.

  10. 1 We had the McLeod report, which was a

    2 highly interesting one, but I cannot but note that

    3 Witness McLeod is certainly a far more qualified person

    4 than the average OTP investigator. There can be no

    5 doubt about that. Nonetheless, only one document that

    6 was in the report which you saw was this list of

    7 prestigious Muslims. I think there was 16 or 13 names

    8 on that list, and it was stated that all those

    9 individuals were interned already on the 16th of April,

    10 and this was used in the context of trying to prove an

    11 allegation which I'm not going to go back to. But our

    12 analysis has shown that two out of those 13 persons

    13 were never detained, and they had told this Tribunal

    14 that two days prior to McLeod, two were dead by the

    15 16th of April and four were detained three or five days

    16 later than alleged in this report.

    17 Therefore, the report, as a document compiled

    18 by a qualified person, certainly a more qualified one

    19 than the investigators we have here, had a number of

    20 errors in it, and now we're expected to accept the

    21 tendering of reports compiled by various investigators,

    22 various employees, and to accept them without

    23 challenging them. I think that would really be quite

    24 contrary to some fundamental principles.

    25 JUDGE MAY: Mr. Kovacic, when you refer to

  11. 1 reports in that connection, are you referring to the

    2 on-site investigation reports by the Sarajevo Court and

    3 the forensic experts?

    4 MR. KOVACIC: (Interpretation) No, not for

    5 these, because I accepted these reports, with some

    6 minor exceptions, but because they were compiled in

    7 accordance with the procedural law of the country I

    8 come from, which I believe provides sufficient

    9 guarantees, because they were not produced by

    10 investigating organs, they were simply one of the

    11 procedures that are part of the investigating

    12 procedure, and I did not see any major problems there.

    13 It is up to us to accept them or not to accept them as

    14 undisputed.

    15 However, there are other kinds of reports

    16 here which are not acceptable. But even the ones you

    17 mentioned, let me give you an example, there is a

    18 record of an investigation by an investigating judge.

    19 In the original, the title is, "Investigating Judge's

    20 On-site Report." There is a document attached to this

    21 report at page R00600048. In this document, the

    22 forensic technician, who drew up some of the material

    23 which is enclosed, inserted a subtitle, "The

    24 examination of ten people killed by the HVO." This is

    25 a quotation, but this cannot be accepted, because when

  12. 1 an investigating judge conducts an on-site

    2 investigation and he has forensic technicians working

    3 for him, their job is simply to establish the traces

    4 and the facts. However, this forensic technician, who

    5 was only supposed to sketch where things were found,

    6 put in his own conclusion, because he concluded that

    7 these people had been killed by the HVO. It was not

    8 his job to conclude this. It's not something that he

    9 knows.

    10 JUDGE MAY: Mr. Kovacic, I think that is an

    11 area where having professional judges is useful,

    12 because clearly that's a matter which is or may be in

    13 dispute. It's not a matter which that particular

    14 expert or investigator could know anything about. He

    15 would be merely reporting what he had heard from

    16 somebody else, and we would ignore that as evidence.

    17 What we would be likely to admit, if we were

    18 to admit it, was the matters on which he was supposed

    19 to report and on which he did report, those matters

    20 which you described.

    21 JUDGE ROBINSON: Mr. Kovacic, suppose the

    22 Prosecutor sought to adduce the witness statements in

    23 the form of affidavit evidence in accordance with Rule

    24 94 ter. Now, what would your reaction be to that?

    25 MR. KOVACIC: (Interpretation) My reaction to

  13. 1 the introduction of testimonies made under oath in

    2 other cases before this Tribunal is far more flexible,

    3 because, first of all, I believe that the Rules provide

    4 a mechanism which can ensure this. Secondly, there is

    5 already some experience in this regard, and I think

    6 that there are several ways of solving this.

    7 In my personal opinion, the best way, but

    8 it's not the only way, would be to apply Rule, I

    9 believe, 89(C) as documentary evidence and possibly to

    10 establish whether there is an area in the testimony

    11 where the witness was not cross-examined, regardless of

    12 which of the parties is involved, whether it's the

    13 Defence and the party was not cross-examined by the

    14 Prosecution, or whether it's a Prosecution witness who

    15 was perhaps not cross-examined in sufficient depth by

    16 the Defence counsel because the Defence strategy was

    17 different. But there are ways in which we could solve

    18 this problem, and I think there are at least two ways

    19 in which this can be done. As I have already said, my

    20 personal opinion is that 89(C) would be the best way to

    21 deal with this.

    22 I would like to conclude now, unless you have

    23 any further questions, of course.

    24 I would just like to remind you,

    25 Mr. President, that during this discussion, you

  14. 1 mentioned certain things on two occasions, referring to

    2 the right to cross-examination. On the 28th day of the

    3 trial, on page 125 of the daily count, in lines 23 to

    4 25, you said to my colleague, the Prosecutor -- I think

    5 I better read it in English, to avoid conclusion.

    6 (In English) "But it is not the Defence who

    7 are calling those witnesses, and the Defence are

    8 entitled to cross-examine. It is the Prosecution

    9 calling the witnesses, and it may be the Prosecution

    10 should review its position."

    11 (Interpretation) The second time there was a

    12 similar discussion on second hearsay, that was on the

    13 11th of May, on page 2232, lines 13 to 15, where you

    14 repeated what you had said before.

    15 (In English) "Somehow different rules should

    16 apply, because this is a difficult case to prove."

    17 (Interpretation) I would like to conclude by

    18 saying that this is a difficult case. I think we are

    19 all aware of the fact that it's a difficult case. But

    20 this cannot change the fact that the burden of proof is

    21 on the Prosecution and that the Prosecutor has to

    22 produce evidence before this Court, whether it's

    23 material evidence or witnesses. If he's unable to do

    24 so, with all the theoretical cooperation of the Defence

    25 and all the goodwill of the Tribunal, there will not be

  15. 1 a case.

    2 That is all I wish to say.

    3 JUDGE MAY: Thank you, Mr. Kovacic.

    4 MR. KOVACIC: Thank you, sir.

    5 MR. NICE: May I distribute skeletons of my

    6 reply and take you quickly through it.

    7 The position now is clear that the Defence

    8 are saying that each and every element of the crime

    9 must be proved by evidence from the witness box, and

    10 since, of course, we only intend to call relevant

    11 evidence and not to bother, save to the most limited

    12 degree, the background material, that means that every

    13 bit of evidence has got to come from there.

    14 It was interesting to note that Mr. Smith

    15 stopped short to saying that each and every exhibit has

    16 to be proved in the same complete method, because I

    17 think they recognise that that would really bring

    18 absurdity to these proceedings and, of course, because

    19 they appreciate they have been allowed, by our attitude

    20 and the Court's practice, a very permissive approach in

    21 relation to exhibits on all sides.

    22 Their argument is, in reality, a

    23 straightforward common-law argument to the effect that

    24 hearsay is inadmissible, and it's interesting to see to

    25 what it would lead if it's right.

  16. 1 First, there is no difference in category

    2 between hearsay in the form of written statements and

    3 hearsay in any other form that this Tribunal regularly

    4 admits. If this argument is right, that is, the

    5 Defence position is correct, it would lead inevitably

    6 to further criticism of the admission of hearsay

    7 generally. Presumably, the argument should be that

    8 that evidence is all totally inadmissible, for it could

    9 be argued that each and every witness, using the word

    10 "witness" in a general sense, whose testimony, used in

    11 a general sense, is given second-hand as hearsay, should

    12 be before the Tribunal for cross-examination.

    13 But, second, and this is the matter least to

    14 have in mind, if the Defence counsel's argument is

    15 correct, then putting ourselves in the position of

    16 Defence counsel in all cases, they would be not only

    17 permitted but, in reality, obliged to admit nothing of

    18 any significance in any case and to require all

    19 evidence to be proved by live witnesses, with obvious

    20 consequences for this Tribunal and the length of its

    21 trials.

    22 Our argument is, of course, that the witness

    23 for whom there are rights to cross-examine is the

    24 person who comes to the witness box, who produces

    25 statements, written or verbal, in the same way as he

  17. 1 does or she does with other evidence, exclusion of that

    2 material being within the Tribunal's discretion.

    3 It's only right that I should draw to your

    4 attention that there is a different formulation,

    5 apparently favoured by the European Court of Human

    6 Rights, for the term "witness," namely that "witness"

    7 should refer to any person whose statements are placed

    8 before the court and are taken into account by it, and

    9 you can find that referred to in the Kostovski case, in

    10 the extract from the textbook provided and to which I

    11 will make further reference shortly.

    12 That alternative formulation favoured by the

    13 ECHR is in a setting where its own authorities

    14 recognises that the right to cross-examine such

    15 witnesses is not absolute. It may be that the

    16 formulation I've proposed where the word "witness" does

    17 relate to the person who comes to give evidence, and

    18 the other material should be differently described,

    19 whether it's the gun, the dagger, or the written

    20 statement of someone else, is the more logical and, in

    21 a sense, the purer, although the second formulation may

    22 seem more reflective of the ordinary use of language.

    23 In any event, there may be no practical

    24 difference in outcome between these two formulations of

    25 the definition for the word "witness," there always

  18. 1 being a discretion to admit or reject evidence if it

    2 does not come live from the witness box, even if

    3 relevant.

    4 It's worth noting that Rule 89(C), upon which

    5 Mr. Kovacic would rely, permits the admission of any

    6 relevant evidence which it deems to have probative

    7 value, and that, of course, requires that hearsay

    8 statements that are being admitted regularly by this

    9 Chamber and others rank as evidence, that that

    10 accordingly fits with the first formulation, the one

    11 that I have proposed. I note, however, that

    12 affidavits, perhaps not unsurprisingly, are in the

    13 formulation of 94 ter, the affidavits of witnesses.

    14 I turn from those general observations to a

    15 few observations on the law from England and Wales to

    16 which we were referred initially by Judge Robinson, and

    17 I'm sorry that I wasn't able immediately, he raised the

    18 case of Radak, to deal with it, not then being aware of

    19 it.

    20 Sections 23 and 26 of the 1988 Act which were

    21 permissive of the adduction of written statements in

    22 certain circumstances are collectively to impose a

    23 presumption against such admissibility in the absence

    24 of leave of the court based on the interests of

    25 justice, and that, of course, broadly speaking,

  19. 1 reflects the approach we are taking. We are not asking

    2 for wholesale admission of material or anything of the

    3 like. We are simply seeking to identify what it is

    4 appropriate should and what it is wholly inappropriate

    5 should be brought all the way here from the former

    6 Yugoslavia.

    7 As the Court may know, in the test for

    8 Sections 23 and 26 in the English law, there's the high

    9 standard of proof beyond reasonable doubt that falls on

    10 the Prosecution when they seek to satisfy the terms of

    11 the section, although a lower, more generous standard

    12 is made appropriate for the Defence.

    13 If the Court has before it the extract from

    14 the textbook Archbold that I provided, using page

    15 numbers rather than the paragraph numbers which are

    16 sometimes less easy to find, page number 1121, the

    17 third sheet, the third sheet and at the foot of page

    18 1121, the following passage appears:

    19 "Where a judge admitted the statement of a

    20 witness on the ground that he would not give oral

    21 evidence through fear, there was no violation of the

    22 accused's rights under the European Convention on Human

    23 Rights, although Article 6(3)(d) conferred on anyone

    24 charged with a criminal offence the right to examine or

    25 have examined witnesses against him as one of his

  20. 1 minimum rights. This was merely an aspect of the right

    2 to a fair trial guaranteed by Article 6(1), and since

    3 the judge had satisfied himself in accordance with

    4 Section 26 of the 1988 Act that it was in the interests

    5 of justice to admit the statement, having taken into

    6 account, in particular, any risk of unfairness to the

    7 accused, the trial considered as a whole had been

    8 fair." That's the case of Thomas and Flannagan.

    9 Radak, which I discover is in the supplement

    10 to the latest volume of Archbold, turned, as Mr. Smith

    11 correctly analysed, on a shortcoming of the prosecution

    12 and not specifically on a breach of the convention.

    13 The transcript, which I trust you have before you,

    14 repays some careful attention. Again, I will refer,

    15 having dealt with a detail in Section 26 from the

    16 skeleton, to the transcript by page numbers.

    17 First, Section 26(b)(ii), and I give the

    18 photocopy reference, in identifying the discretion

    19 factors that the judge has to take into consideration

    20 before he can admit such a statement, refers to: "Any

    21 risk, having regard in particular to whether it is

    22 likely to be possible to controvert the statement of

    23 the person if the person making it does not attend to

    24 give oral evidence in the proceedings, that its

    25 admission will result in unfairness ..." So the

  21. 1 important phrase is "likely to be possible to

    2 controvert."

    3 Now, in the transcript of Radak at page 9,

    4 line 8, the Court of Appeal made these observations

    5 dealing with the particular facts of that case which

    6 all hinged on the single statement of the single

    7 witness, but at line 8, the court said this by way of

    8 definition of "controvert":

    9 "A defendant might controvert the statement

    10 by giving evidence or calling the evidence of other

    11 witnesses, but might also do so by cross-examination of

    12 or putting Mr. Shifrin's credibility in issue. It was

    13 accepted by the prosecution that none of the defendants

    14 was in a position by calling evidence to controvert

    15 Mr. Shifrin's evidence if it were to be read."

    16 And they weren't going to be able to

    17 controvert it by calling other evidence.

    18 This, I think, happily, is the same point I

    19 was making when first asked about this case by Judge

    20 Robinson some days ago, but for the material we are

    21 suggesting can properly be read, it is entirely open if

    22 there is a real issue to the Defence to call evidence

    23 to the contrary effect.

    24 As I said on the first hearing of this

    25 particular stage of the argument, of course, if it was

  22. 1 known by them in advance that they were in a position

    2 so to controvert the statement of a witness, it might

    3 be thought to be their duty to raise a good argument

    4 why the witness should come to court to be

    5 cross-examined, and no doubt, if they had a good

    6 argument, he would be here. Similarly, no doubt, if

    7 they kept that part of their powder dry and simply

    8 called evidence in their case, it might be open to the

    9 Prosecution to deal with the matter thereafter by

    10 rebuttal. But what is important is that the

    11 interpretation of "controvert" is not restricted to

    12 cross-examination but includes specifically the calling

    13 of other evidence or, indeed, the putting into issue

    14 the man's credibility by argument, for example.

    15 The same transcript at the foot of the page

    16 on the last four lines says this:

    17 "Mr. Shifrin's evidence was an essential

    18 link in the prosecution's case. It was not merely a

    19 formal part of their case. The fact that the

    20 defendants have little or no evidence to controvert

    21 Mr. Shifrin's statement, in our view, reinforces the

    22 submission made on their behalf that it would be unfair

    23 if they did not have the opportunity to test the

    24 evidence by cross-examination. You cannot conduct an

    25 argument with nor ask questions of a piece of paper."

  23. 1 If you turn over, please, to page 10 and the

    2 penultimate paragraph --

    3 JUDGE ROBINSON: Mr. Nice?

    4 MR. NICE: Yes.

    5 JUDGE ROBINSON: On that last point, that it

    6 was not merely a formal part of their case, the

    7 evidence that the Prosecution would be seeking to

    8 adduce in this case would not be merely a formal part

    9 of the Prosecution's case, would it?

    10 MR. NICE: I entirely accept that it's not a

    11 merely formal part whatever, with deference to the

    12 Court of Appeal, a merely formal part of evidence may

    13 be. As I said earlier, no evidence is really called

    14 unless it is part of the overall chain of evidence that

    15 goes to make a conviction appropriate. Very rarely is

    16 one allowed the time of the court simply to deal with

    17 background material. There is a difference -- well,

    18 what does "formal" mean? I'm not sure what they think

    19 it meant in that case, but I come later in my skeleton

    20 argument to some examples of what might -- one example

    21 in particular, to an example of what might be thought

    22 to be formal material in, for example, a case of

    23 domestic murder, and yet that's the sort of material

    24 that can typically be dealt with by being read or

    25 admitted in other jurisdictions, and there's no reason

  24. 1 why that practice shouldn't happen here.

    2 There is, as I know, in the ICTR a case

    3 that's proceeded entirely on the basis that the

    4 genocide is entirely conceded, and the only issue

    5 before the Tribunal is whether the responsibility of

    6 the defendant is established. There is no absolute

    7 rule that because something is an element, a vital

    8 element in the proof of the crime charged against the

    9 defendant, that neither he, nor those on his part, can

    10 admit it or deal with it shortly. They can. If there

    11 is no reason to doubt the accuracy of the material,

    12 there is no absolute rule that says that a tribunal has

    13 to have the evidence before it live.

    14 To some degree, the problem that you raise

    15 from that quotation is a problem that turns on its own

    16 terms and the use of the word "formal." What is

    17 formal? In all cases, some evidence can be described

    18 as formal. In all cases, all evidence is probably, in

    19 a sense, essential to conviction.

    20 If we turn over to page 10, we see that

    21 observation, I hope, reflected in the first two lines

    22 of the penultimate paragraph where the commission -- I

    23 beg your pardon, wherein a quotation from the case of

    24 Application against Germany, I think that is, cited in

    25 the last line of the previous paragraph, it says this:

  25. 1 "The Commission recalls that Article 6(3)(d)

    2 of the Convention does not grant the accused an

    3 unlimited right to secure the appearance of witnesses

    4 in court. Its purpose is rather to ensure equality

    5 between the defence and the prosecution as regards the

    6 summoning and examining of witnesses ..."

    7 If Your Honour's point or if Your Honour's

    8 concern is derived from what lies at the foot of the

    9 previous page of this judgement, is a concern that

    10 wherever there is anything critical, crucial, or

    11 whatever it may be, to a conviction, that it has to

    12 come live from the witness box, then that passage

    13 simply couldn't exist, and yet it does.

    14 Can I, before we turn from the assistance, if

    15 it is, from the law of England and Wales, to take you

    16 on in the extract from the textbook Archbold, first of

    17 all, to what you can find at the foot of page 1143. I

    18 know I have referred to this passage on an earlier

    19 occasion, and I think on the earlier occasion, I

    20 mentioned that it was a piece of new legislation

    21 thought by some to have been legislation in error, but

    22 nevertheless, this is the present position in England

    23 and Wales, and at the foot of 1143, paragraph 10-41,

    24 Section 68 of the 1996 Criminal Procedure and

    25 Investigations Act is set out as giving effect, wide

  26. 1 reaching, and I turn over, in that they make any

    2 statement falling within Section 5(B) of the

    3 Magistrates Court Act, and any deposition taken under

    4 Section 97(A) of that act admissible at trial. This is

    5 subject to objection by the defence, but any such

    6 objection may be overridden by the judge in the

    7 interests of justice.

    8 As the commentators from Archbold go on to

    9 make clear, this provision goes further than any

    10 previous legislation on the admissibility of witness

    11 statements and depositions. First, there is no

    12 restriction of admissibility to cases where the witness

    13 is dead, too sick to attend court, or too frightened to

    14 give evidence, and it sets out the earlier provisions.

    15 Secondly, there is no restriction on the discretion of

    16 the judge and no indication as to what factors he

    17 should consider. Thirdly, the presumption seems to be

    18 in favour of admission of such evidence with the onus

    19 being on the defence to object. This is confirmed by

    20 Rule 22 of the Crown Court Rules.

    21 Next paragraph. It should be borne in mind

    22 that under the new regime introduced by the 1996 act,

    23 the old system, whereunder a magistrate's court

    24 committing an accused for trial would make a series of

    25 witness orders full or conditional, in respect of

  27. 1 witnesses, has been abolished, and therefore, the

    2 provisions of this schedule are not confined to the

    3 statements or depositions of non-contentious witnesses,

    4 the subject of conditional witness orders. It appears,

    5 however, the commentators go on to say that the

    6 introduction of such a draconian system was not what

    7 was intended. These provisions were introduced at a

    8 late stage in the life of the bill in the House of

    9 Commons, and upon the House of Lords' subsequent

    10 consideration of the Commons amendment, the apparent

    11 defects were pointed out that the government was

    12 unwilling to accept any amendment, Baroness Blatch

    13 saying:

    14 "If the evidence ... has been admitted in

    15 earlier committal hearings and is not disputed by any

    16 parties at the trial, it would be both unnecessary and

    17 wasteful to require the presence of witnesses to give

    18 that evidence again orally." That is a practice which

    19 already exists, and we're not seeking to introduce

    20 anything new or revolutionary.

    21 As to the discretion to override a Defence

    22 objection, Baroness Blatch said that it was anticipated

    23 that the courts would turn for guidance to Section 26

    24 of the 1988 Act, which we've already considered. These

    25 concessions leave the position extremely vague. In

  28. 1 particular, despite Baroness Blatch giving, as

    2 examples, a witness who has died or moved abroad, there

    3 are no such conditions of admissibility in the Act and

    4 it would be quite impossible to read them into it

    5 merely on the basis of examples given by the Minister.

    6 Secondly, there remains the issue of the

    7 burden of proof. Under the Criminal Justice Act, 1925,

    8 Section 13, the Prosecutor had to establish the

    9 existence of one of the conditions of admissibility to

    10 the criminal standard, and under the Criminal Justice

    11 Act, 1988, not only is this the case, but also under

    12 Section 26, the presumption is against admissibility,

    13 so it remains to be seen how much the courts are

    14 prepared to read into an Act, something which is

    15 plainly not intended to say.

    16 Nevertheless, if there is help from the

    17 jurisprudence of England and Wales, it is quite clear

    18 that the principle of admissibility of written

    19 statements is intact and, however the precise words of

    20 the latest Act of Parliament may be interpreted, that

    21 it is the Court that is going to be exercising

    22 decision-making powers, within a properly-exercised

    23 discretion, as to which witnesses should attend.

    24 Finally, because it has created some concern,

    25 I think, amongst the defendants, I've made available to

  29. 1 you, to be handed up, please, and it's on the bench in

    2 front of you, the one sheet, and this deals with the

    3 suggestion that any requirement for defendants to make

    4 their case plain is to place a burden on them that is

    5 inappropriate. In England and Wales, by Sections 5 and

    6 6 of the same 1996 Criminal Procedure and

    7 Investigations Act, there is now compulsory disclosure

    8 by the accused under Section 5 where the Act applies,

    9 which is to trial on indictments where the Prosecutor

    10 has complied with the duty of disclosure, and if one

    11 casts one's eyes down to subparagraph 6, there is the

    12 requirement, or subparagraphs 5 and 6, there are the

    13 requirements that the accused must give a defence

    14 statement to the court and the prosecutor setting out,

    15 in general terms, the nature of the accused's defence,

    16 indicating the matters on which he takes issue with the

    17 prosecution, and setting out, in the case of each such

    18 matter, the reason why he takes issue, so that in the

    19 jurisdiction of the United Kingdom, there are

    20 developments that reflect, it may be thought, the

    21 efficiencies that we seek and, indeed, the method by

    22 which we say they can be accomplished.

    23 If I can just turn then now to the civil

    24 system, in the civil system statements other than those

    25 taken by an investigating judge are admissible, and if

  30. 1 the Court has in mind or has access to the extract from

    2 the book of Stefanus Stavros, there are passages at

    3 page 231 and the footnote at 232 of some assistance.

    4 At 231, the author, in the middle of the page

    5 and in reviewing or partway through the process of

    6 reviewing authorities, says this:

    7 "It soon became apparent that untested

    8 hearsay evidence could not be excluded altogether.

    9 Many States' parties allow, to one degree or another,

    10 for their admission in criminal proceedings. This is

    11 particularly true of continental inquisitorial systems

    12 where the case file forms part of the evidence before

    13 the court. This is compiled at the preindictment stage

    14 by an investigating judge, whose conclusions usually

    15 carry weight with the court and often contain

    16 statements of witnesses who do not appear at the trial

    17 hearing.

    18 "Rather valid reasons are sometimes adduced

    19 for the failure of such witnesses to testify.

    20 Parliamentary and family privilege, as well as the

    21 limitations involved in the special procedures for the

    22 examination of persons highly placed in the State, have

    23 been accepted by the convention organs as compatible,

    24 in principle, with Article 6."

    25 We turn over the page to the footnote number

  31. 1 734, which is given on the fourth line of the text:

    2 "Under the general proposition, equality of

    3 arms has been respected --" well, it's quoting the

    4 Unterpertinger case, in which no violation was found,

    5 and I start at the top of the page.

    6 "As the exclusion of witnesses operated for

    7 both the Defence and the Prosecution, equality of arms

    8 had been respected. Article 6(1) had not been

    9 violated, as the total lack of direct evidence in the

    10 case was remedied by the existence of other

    11 circumstantial evidence which the domestic court had

    12 considered sufficient to warrant the applicant's

    13 conviction."

    14 Then the footnote itself identifies the

    15 circumstantial evidence which comprised the statements

    16 made by relatives to the police, the police report

    17 summarising and commenting on them, medical reports on

    18 the injuries of the victims, the divorce file between

    19 the applicant and the wife, and, finally, the

    20 applicant's own defence arguments and the personal

    21 impression he made upon the Court and so on.

    22 So, as we've advanced before, all sorts of

    23 material, and as I think is well known in various civil

    24 systems, are admissible. I go on to say this:

    25 The right to dispute every element of a case,

  32. 1 which is, I think, a recognised right, is not a right

    2 to cross-examine every possible witness in all

    3 circumstances. There is a right to a fair trial, and

    4 if the trial is fair without cross-examination, there

    5 is no breach of the European Convention.

    6 A case in support of that, which we have in

    7 French at the moment but not in English, is Doorson,

    8 and I can make that available to the Chamber, if it

    9 would help.

    10 If it's possible to dispute a statement, for

    11 example, by showing conflicts, exactly as the Defence

    12 have been doing, exactly as my friend Mr. Kovacic was

    13 making clear today when he was, for example, commenting

    14 on McLeod, if it's possible to show conflicts in that

    15 way, then you can devalue the evidence to the Trial

    16 Judge or, alternatively, you can justify the calling of

    17 the material witness for cross-examination. That

    18 accomplishes a fair trial. There is no, as we've seen,

    19 absolute right to have every declarant, as Mr. Smith

    20 would call them, every percipient observer, present for

    21 the purposes of cross-examination.

    22 It's interesting to note that in the

    23 Kostovski case, both the witnesses were anonymous.

    24 They gave crucial and decisive evidence against the

    25 accused. Because they were anonymous, they were

  33. 1 available for questioning only via an examining

    2 magistrate. I think questions had to be submitted to

    3 the magistrate, and he asked them of the anonymous

    4 witnesses, spoken to out of the presence of the

    5 lawyers, as I understand it. In these circumstances,

    6 the anonymity affected the ability of the parties to

    7 question the witness, and it may be, fundamentally, to

    8 dispute the material at all. This is not a question

    9 simply of not being able to cross-examine. These

    10 European cases do not bar the use of statements of the

    11 sort we seek to use.

    12 In any event, there is no question of

    13 wholesale use, as categorised by Mr. Smith, and it has

    14 never been our intention to rely on written statements,

    15 as a matter of course, for direct evidence concerning

    16 the accused, unless, of course, such material was

    17 agreed. Of course, that material which directly

    18 implicates the accused, we would expect and would have

    19 to come here.

    20 In all cases cited by us from Stavros' book,

    21 the questioned evidence was critical in a way entirely

    22 different from the way in which the accounts of the

    23 villagers would be relevant here. Of course, their

    24 collective accounts may be essential for conviction,

    25 because their accounts show the commission of

  34. 1 on-the-ground crimes that are charged against the

    2 defendants.

    3 Then to return to Judge Robinson's point that

    4 he earlier raised with me, in a murder case, the

    5 pronouncement of death by a doctor or the account by

    6 the pathologist of the mechanism of death is a crucial

    7 element of the case, and yet all too regularly it's

    8 material that is adduced unchallenged, because the

    9 issue is not how it was done but who was responsible.

    10 In short, the European cases do not allow for

    11 a fishing expedition by the Defence and are decisions

    12 given in cases where the proper joining of issues had

    13 been established.

    14 It may be worth noting what Stavros said on

    15 the Asch case, because he observes or suggests that in

    16 that case, where the conviction or a finding of the

    17 lower court was upheld, he notes that the European

    18 Court appeared to have reservations concerning the good

    19 faith of the applicant who, in the course of the

    20 national proceedings, had not made any serious attempts

    21 to dispute the complainant's version of events.

    22 Here, we propose that witnesses would be

    23 available for cross-examination wherever the Court is

    24 persuaded, in good faith, that there is a serious

    25 dispute. We've never suggested otherwise. We say that

  35. 1 is preferable to what may have been raised as a

    2 possibility by Judge Robinson and possibly by

    3 Judge Bennouna, namely, that there should be, as it

    4 were, witnesses brought in by the plane load to say,

    5 "That's my statement and it's right," and then to be

    6 subject to no significant or helpful questioning.

    7 I think the following point, paragraph 14,

    8 has already been picked up by a member of the Court,

    9 but Rule 94 of our own Rules, which allows

    10 cross-examination of affidavit witnesses, does so only

    11 where the party objects and, and the "and" is

    12 emphasised in my text, not in the original of course,

    13 and the Trial Chamber so rules. That Rule thus

    14 recognises, in relation to a category of evidence, the

    15 power to --

    16 JUDGE BENNOUNA: (Interpretation) You are now

    17 coming to the gist of the subject, or we're rather

    18 turning around the same subject without making much

    19 progress, because reference to all these cases,

    20 national and European, I don't think that that is

    21 helping us much, because after all, we are an

    22 International Tribunal here which does not always have

    23 behind it the cooperation of States, as is the case in

    24 the European tribunal that you are referring to. Even

    25 the case that you have just cited, the Radak case, it

  36. 1 was stated that:

    2 (In English) "Witnesses residing abroad whose

    3 presence at the trial cannot be enforced by the trial

    4 court are examined on commission by a court at their

    5 place of residence."

    6 (Interpretation) This means we keep coming

    7 back to the question that has been put to you, and that

    8 is the following: The investigators are a part of the

    9 Office of the Prosecutor, and we are not in a national

    10 framework where we have court investigators which may

    11 sometimes be independent of the prosecution, as is the

    12 case in many countries. We're dealing with the

    13 situation in which the Prosecutor has several

    14 functions; policing, investigator, investigating judge,

    15 and so on.

    16 So we're asking you, in order to have these

    17 documents admitted and these statements, they have to

    18 be covered by some other authority and not just yours.

    19 That is the basic question. That is the gist of the

    20 matter.

    21 So when you're talking about affidavits here,

    22 there is a statement under oath, and the question has

    23 been put to you, I think, by my colleague

    24 Judge Robinson, either you're going through a statement

    25 under oath, in which case the witness is committed and

  37. 1 his own credibility is involved under penalty of

    2 sanctions, or you have national authority to rely on.

    3 What I'm saying applies equally to the

    4 Defence, because the Defence may also be confronted

    5 with such problems, and it may be confronted with

    6 certain obstructions on the part of States, and it may

    7 have difficulty in bringing witnesses because of that.

    8 So we have two elements. First, we're in an

    9 International Tribunal here which has not the authority

    10 to impose itself but needs the support of others, which

    11 is not always provided. So if you wish to remedy this,

    12 you can either have a statement under oath, as has been

    13 said, or affidavits, or, as I think Mr. Kovacic said,

    14 he recognised himself certain inquiries carried out by

    15 local judges, death certificates provided by local

    16 authorities.

    17 So we could go through another passage and

    18 not just through the Prosecutor, because the Defence

    19 tells you that the Prosecutor's channel is not

    20 sufficient because it would call in question the

    21 equality of arms, bearing in mind that that principle

    22 is not the same applied in a national court and in an

    23 International Tribunal such as ours. This was stated

    24 in the Tadic case.

    25 So I think if you can help us along those

  38. 1 lines, then, I think, we can make greater progress.

    2 Thank you.

    3 MR. NICE: I've dealt, of course, with the

    4 authorities, European and United Kingdom, out of

    5 respect of the argument of my friends opposite and

    6 because Judge Robinson raised and I didn't conclusively

    7 deal with the matter the first time I was addressing

    8 you.

    9 As to the position of the investigators and

    10 their separateness or not from the Office of the

    11 Prosecutor, that is no different from the position in

    12 countries elsewhere for what that is value where there

    13 is identity between the police and the CPS, or the

    14 prosecuting authority, or whoever else it may be for

    15 all practical purposes. That is in no sense a barrier

    16 to the adoption of statements taken by those

    17 investigators. On the contrary, it is exactly by those

    18 investigators that the statements are taken. Such

    19 statements are usually headed by, or in fact

    20 invariably, I think, headed by a caption that goes to

    21 the truth of the statement, as are statements here. In

    22 other jurisdictions, the statements may be subject to a

    23 penal notice, which isn't available to us here because

    24 no such provision has yet been made by the Rules.

    25 But it's interesting to note, and if I could

  39. 1 invite you just to turn over to the next sheet of my

    2 argument for the detail, to paragraph 17, that Judge

    3 Jorda and Trial Chamber I, when dealing with the

    4 statement of the late Midhat Haskic, the witness in

    5 respect of whom, we, in due course, will seek to have a

    6 statement read because he's dead. When Judge Jorda

    7 dealt with that and permitted the statement to be read,

    8 he spoke of the statement being sworn, recognising that

    9 in the particular circumstances allowed us by the

    10 provision of our Rules, the statement was as far as it

    11 could go without it being similar on affidavit or

    12 otherwise.

    13 I also understand, as a matter of fact, there

    14 may be no provisions for affidavits formally in the

    15 former Yugoslavia, but that's perhaps a detail. I

    16 suppose statements can be taken with some additional

    17 formality, if necessary.

    18 But there is simply --

    19 JUDGE BENNOUNA: (Interpretation) But,

    20 Mr. Nice, do not forget that we are not applying here

    21 the law of ex-Yugoslavia or of Great Britain, we're

    22 applying the Rules of the Tribunal and the Statutes of

    23 the Tribunal, which do not envisage, as you have

    24 already been told, 94 ter. You should not refer to

    25 national legislation which has no affect on the

  40. 1 International Tribunal, especially if it runs counter,

    2 directly counter, to a provision of the Statute or the

    3 Rules.

    4 MR. NICE: I was simply dealing with the

    5 reality of the statement-taking powers available to us

    6 and the way they have been recognised by another

    7 Chamber of this Tribunal and, indeed, recognised in a

    8 way that thereafter was followed by the evidence being

    9 admitted.

    10 JUDGE MAY: But, in fact, the rule-making

    11 body had that point in mind, because there is a

    12 reference specifically in the Rule to affidavits signed

    13 by other witnesses in accordance with the law or

    14 procedure of the State in which such affidavits are

    15 signed. So if somebody came along and said, "We can't

    16 have an affidavit, we don't recognise them," there is a

    17 procedure for obtaining statements or declarations.

    18 The term is signed by other witnesses in accordance

    19 with the law and procedure of the State.

    20 Since I am interrupting you, I wonder

    21 whether, first of all, I could draw your attention to

    22 the clock. I hope we can --

    23 MR. NICE: Yes. I've nearly finished, and --

    24 JUDGE MAY: Well, perhaps you could finish,

    25 and then there's something I want to ask you.

  41. 1 MR. NICE: Yes, certainly. But because I

    2 mustn't leave Judge Bennouna's question unanswered, our

    3 argument is and remains that material of all kinds,

    4 subject to your discretion under Rule 89(C), is

    5 admissible. That includes statements howsoever

    6 obtained or taken that there is absolutely nothing

    7 wrong with those statements being taken by an officer

    8 of the Prosecutor, and there would be nothing wrong

    9 with statements being taken by an investigator for the

    10 Defence. I accept that. There has to be equality. We

    11 say that material can be taken by you, and under your

    12 powers of controlling the presentation of evidence, you

    13 can decide whether it's going to be acceptable to you

    14 or whether you're going to say, "No, that witness has

    15 to be called."

    16 Paragraph 15, again out of respect for the

    17 Defence arguments, I observe that in the Yugoslav code,

    18 witnesses and experts shall be summoned except for

    19 those whose examination in the trial is not required in

    20 the judgement of the presiding judge. It's the duty of

    21 that judge to see that the subject matter is fully

    22 explained and that the truth is found and that

    23 everything is eliminated which prolongs but does not

    24 serve to clarify.

    25 In conclusion, I make these points: There's

  42. 1 been little divergence of witness testimony from what

    2 is contained in the statements. Some changes or

    3 differences are inevitable. They are not necessarily

    4 caused by breaking down, as Mr. Stein would wish. The

    5 difference may be caused by anxieties not reflecting

    6 dishonesty in any way. As a matter of fact, little has

    7 emerged from cross-examination by way of a change of

    8 testimony.

    9 I've dealt with paragraph 17.

    10 Our proposal never suggested the wholesale

    11 adoption of written statements. The defendants are not

    12 being deprived of the right to cross-examine. They are

    13 simply being required to justify cross-examining. They

    14 are being required to do so to the Chamber because the

    15 Rules do not oblige them to cooperate with us in the

    16 way we had hoped and in the way that other systems

    17 would require.

    18 Although Judge Bennouna, I recognise, may be

    19 concerned about national jurisdictions, the analogy

    20 from other jurisdictions can help to this extent: When

    21 you have a regime that requires the Defence to justify

    22 their actions, of course the consequence is that

    23 cooperation takes place in order to forestall

    24 difficulties. It's, as I said on an earlier occasion,

    25 enforced but takes the form of real cooperation.

  43. 1 The Defence have previously acknowledged that

    2 prior testimony could be read. There is no reason to

    3 distinguish between the admission of prior testimony of

    4 witnesses and the statements of witnesses. The Defence

    5 stated in November of 1998, last year, this:

    6 "The second point is that the basic rationale

    7 for our motion is the possibility that this case could

    8 be handled more speedily and more efficiently by using,

    9 in this case, evidence, that is to say, transcripts and

    10 exhibits already gone through, produced, and delivery

    11 in these other cases, on some basis that the two sides

    12 and the Court could agree upon and thus not have to

    13 repeat historical testimony. Testimony that's critical

    14 concerning, say, military necessity, that might be in

    15 the Blaskic case, critical to the predicant defences

    16 that our defendant and Mr. Cerkez are alleged to have

    17 participated, leaving counsel only during the direct

    18 and cross to take on new matters. This may not be

    19 feasible, and it may be there is a great deal of other

    20 evidence in these other cases that would relieve these

    21 witnesses from having to come back to The Hague if

    22 counsel and the Court find a procedure by which this is

    23 possible."

    24 As I think I suggested earlier, the Defence

    25 position has hardened or, in any event, become more

  44. 1 revealed in recent argument to the position that they

    2 are now saying everything has to be proved, and as we

    3 saw last week, they now refer to a two and a half year

    4 trial --

    5 JUDGE MAY: Where do they refer to that?

    6 MR. NICE: Mr. Stein said that last week in

    7 argument. That recognises two things, that they cannot

    8 object to the prosecution of a confirmed indictment

    9 calling its evidence and that their position might lead

    10 to that result.

    11 Mr. Kovacic made some further points, which I

    12 hope most of them I've swept up as I've been going

    13 along. As to his concern about him speaking to

    14 witnesses himself, well, first of all, it's not yet

    15 known in this case whether Defence witness statements

    16 will themselves ever be produced. If they are, the

    17 reality is that the Defence will not find themselves in

    18 a significantly different position from the Prosecution

    19 because, of course, as the Court now knows, the summary

    20 documents that are provided are provided frequently in

    21 dialogue with one of the lawyers, as we know, indeed,

    22 from the statement of Dr. Mujezinovic and the other

    23 statement of Mr. Ehsan Bajwa. Statements there were

    24 taken by a lawyer and an investigator, so that's a

    25 commonplace. If it is desired to present evidence

  45. 1 without exposing lawyers to the witness box, there are

    2 inevitably techniques by which that can be

    3 accomplished.

    4 We remain of this position: We've done

    5 everything we can to abbreviate this case by serving

    6 material for admission and by seeking to discover what

    7 truly is not in issue. Mr. Kovacic, it has to be said,

    8 has been far more cooperative and has made attempts in

    9 the past to agree things, but always his agreements

    10 have been trumped, to use an analogy, by the blanket

    11 denial of everything by the Kordic Defence which meant

    12 that, for the time being, his concessions cannot avail

    13 us of anything.

    14 We've made all those efforts. If there is no

    15 way by which matters can be agreed or matters can be

    16 read, then we will simply have to call the evidence to

    17 the witness box to prove the case, and we've always

    18 been prepared to do that. It will be a dreadful

    19 expenditure of time, the expense of other persons

    20 waiting trial, if witness after witness is subject to

    21 nothing effective in the way of cross-examination. It

    22 would be a proper disposal of this issue for this

    23 Chamber to either require further elucidation from the

    24 Defence of their position on the matters we seek to

    25 deal with in the way identified, alternatively, on the

  46. 1 basis of their present response, to say no good showing

    2 has been revealed why this material may not be read.

    3 Accordingly, the Prosecution, who have always

    4 intended to call one or so witnesses, can carry on and

    5 call the limited number of witnesses they do, but we

    6 will take the other evidence read into account. That,

    7 of course, would be entirely without prejudice to the

    8 ability of the Defence to call other witnesses to a

    9 contrary effect at a later stage in the trial, it would

    10 be entirely without prejudice to the Defence arguing so

    11 as to guarantee a fair trial that one witness is

    12 inconsistent with another, whatever, but it would save

    13 huge amounts of time and be a credit to this

    14 institution.

    15 JUDGE MAY: Mr. Nice, just help me, if you

    16 would, with this: It's an unusual form of application,

    17 really, when you think about it --

    18 MR. NICE: Yes.

    19 JUDGE MAY: -- because, in fact, it's a

    20 series of applications to admit different types of

    21 evidence. One approach that we could take would be to

    22 admit or exclude the entire dossier.

    23 MR. NICE: Yes.

    24 JUDGE MAY: If we admitted it, then, of

    25 course, there would be no need for further argument, at

  47. 1 least as far as the Trial Chamber is concerned. If we

    2 excluded it, it would then, of course, be open to you

    3 to apply for various parts, it may be, to be put into

    4 evidence. A third approach is for us to analyse what's

    5 in the dossier and go through it item by item, as it

    6 were, making it a series of separate applications. If

    7 we were against you on admitting the whole dossier,

    8 would you invite us to do that?

    9 MR. NICE: Exactly so, subject to such

    10 further argument as the Defence might seek to make in

    11 clarification or amplification of their response. It

    12 seems to us that wherever the Defence are saying, "This

    13 is simply something out of our knowledge," then that is

    14 something much more likely properly to be read and

    15 dealt with in that way or by the summary of the

    16 investigator. Where they identify a real issue and the

    17 Chamber judges it to be a real issue, we wouldn't

    18 suggest other than that could justify the witnesses

    19 being called, which is, as I understand it, if I can

    20 complete the answer, which is, as I understand it, what

    21 happens at the examining stage of a civil system or,

    22 indeed, both stages, and that's what we have sought to

    23 provide as a method.

    24 Indeed, since I perhaps have interrupted Your

    25 Honour now, but can I just remind the Court overall of

  48. 1 how this comes about? It comes about because I'd,

    2 first of all, set out how I was going to present

    3 evidence, going around the municipalities, hoping to

    4 discern from cross-examination what was in issue and

    5 then to lead material, ever narrowing my witness base,

    6 I hoped, that was relevant to particular areas.

    7 Before we got very far advanced on that

    8 process, the Court expressed its desire to consider the

    9 witness list. The Defence then, in the vernacular, had

    10 jumped on the bandwagon, and although their first

    11 response may have no bearing, and I would ask that it

    12 should, indeed, have absolutely no bearing on any

    13 decision, sought impertinently to say two witnesses per

    14 village without revealing that they had no intention of

    15 admitting a thing and would have come back at the end

    16 of the trial to said, "You simply haven't proved your

    17 case," and from that stage on, we got involved with

    18 methods of abbreviating the trial by greater

    19 efficiencies, and that led us to say, "Well, first of

    20 all, we divided our witnesses up for you between above-

    21 and below-the-line witnesses in an attempt to identify

    22 those who might not be needed," although, I have to

    23 say, if there are no concessions made, it may well be

    24 that some of the below-the-line witnesses who we'd

    25 formerly thought we might not have to call might now be

  49. 1 necessary because we will be missing bits of evidence

    2 in relation to particular counts, however economically

    3 I call the evidence. I hope not, but it may come

    4 about. Then it was that we advanced this as a

    5 possibility to you. So that's the history of it.

    6 JUDGE BENNOUNA: (Interpretation) Mr. Nice, I

    7 think there is a misunderstanding with respect to the

    8 question put by my colleague, the President, Judge

    9 May. The question was the first possibility, and that

    10 is to reject the dossier in its totality; the other is

    11 to accept it globally. You were asked if the Trial

    12 Chamber was not prone to accept it as a whole, would

    13 you agree if we could go category by category, not

    14 statement by statement, but legal category by legal

    15 category of document, which is a different approach?

    16 Having heard what you yourself have said,

    17 that this dossier was given as a test, we wanted to

    18 test this possibility, and since there was evidence

    19 about what happened in all the villages, you chose

    20 Tulica as a particular village to suggest the way in

    21 which we could possibly proceed in order to abbreviate

    22 and narrow the issue, as they say in English, to focus

    23 more the case and the evidence specific to a particular

    24 town or village. That is where we are. We are now

    25 doing a village test, as such, and we must draw certain

  50. 1 categories. We are not here appreciating a particular

    2 piece of evidence.

    3 Would that suit you, if the Trial Chamber

    4 examines different categories of documents and rules on

    5 them, how they can be admitted and under which

    6 conditions? What you have said about the civil law,

    7 the countries of the civil law system, is not quite

    8 correct because we are not here in the stage of

    9 investigation. We are in the trial stage, and we

    10 mustn't forget that, that we are already well into the

    11 trial now.

    12 A last point that I wish to address to you is

    13 that this does not prevent us from examining this

    14 dossier, nor does it prevent your office to avoid

    15 evidence which is repetitive. My colleague, Richard

    16 May, has already told you, I think, regarding Kaonik

    17 last week, when things have already been proven, we

    18 accept the competence given to us by the Rules, and we

    19 will reject the evidence that is repetitious of

    20 something that we have already heard. This is useless

    21 repetition, and all this in the interest of a fair,

    22 effective, and speedy process.

    23 Without entering into the details, this

    24 examination of the dossier by categories, would that

    25 suit you? That is the way I understood the question

  51. 1 addressed to you.

    2 MR. NICE: Judge May's question, I think,

    3 said item by item, and I understood that to mean piece

    4 of evidence by piece of evidence rather than category

    5 by category. If I am wrong in that, I can deal with

    6 the proposition of category by category, but it would

    7 be our submission that item by item is far more

    8 helpful.

    9 Let me deal with that in two stages. Item by

    10 item is bound to be more helpful because what we are

    11 seeking to lay before you in the most efficient way is

    12 evidence that is not controversial. Evidence that is

    13 not controversial may come from a witness statement, it

    14 may come from a report, or it may come from another

    15 document, and, therefore, simply to deal with it on a

    16 category of material basis is possibly not

    17 appropriate.

    18 Why did we reduce the material to a dossier

    19 in the form of a statement or summary by the

    20 investigator? For the same reason. The material

    21 overall will reduce to a narrative account some

    22 paragraphs of which may be, some of which may not be

    23 genuinely in dispute.

    24 Thus, in our respectful submission, the

    25 appropriate approach of the Chamber could be to look at

  52. 1 the individual propositions, factual propositions, and

    2 then to say, "Well, that is not shown as requiring any

    3 further examination. It's plainly not in dispute. No

    4 showing of dispute has been shown, and since that is

    5 supported by a witness statement or since that is

    6 supported by a report of a different kind, we will

    7 admit that piece of evidence," given that there is no

    8 bar imposed or implied on any particular category of

    9 evidence by your Rules.

    10 We would respectfully invite you to deal with

    11 it item by item. If it comes to category by category,

    12 it would be our position that the only way you can deal

    13 with it category by category is by saying that, in

    14 theory, everything is admissible because there is no

    15 block on the type of material you may consider and

    16 weigh, and so that you would have not got any further,

    17 or you may have got further, because you might,

    18 say, "We'll let all the maps in and we'll let the

    19 reports in, but we won't let any statements in," but

    20 this application and this approach by the Defence is

    21 all about statements. As I said right at the beginning

    22 of my reply, however disguised, this is a common law

    23 argument about hearsay, and, in a sense, it's

    24 inappropriate that such a blocking technique should be

    25 sought, really, by the Defence, but if not

  53. 1 inappropriate -- perhaps "inappropriate" is the wrong

    2 word. I can't stand in the way of their conducting the

    3 case in the way that they choose, if they think it's in

    4 the interests of their defendant to do so.

    5 But we would invite you, therefore, to

    6 approach each piece of evidence or each summarised

    7 piece of evidence and extract and decide whether it's

    8 material that you can take into account at present on

    9 the basis of the material available or not. If not,

    10 then the evidence will be called.

    11 As to the repetition, I haven't yet myself

    12 analysed further how much Kaonik material you've had,

    13 and I'll deal with that because Judge May asked me to,

    14 and, of course, I will, but I suspect that there may be

    15 a little more of a problem with Kaonik than at first

    16 sight appears because of the need to prove the origin

    17 of particular individuals who are going to Kaonik for

    18 particular counts, but I'll come back to that.

    19 As to the general proposition that a Trial

    20 Chamber can say "Enough's enough," of course, it can.

    21 The Rules give you that power, and we recognise that.

    22 There is, of course, a potential problem, and that is

    23 that if a Prosecutor is cut off, "Well, you've had one

    24 witness on that topic, and that's enough," and the

    25 Defence then call contrary evidence at a later stage,

  54. 1 the Trial Chamber may be embarrassed by having

    2 indicated satisfaction at an early stage when, on

    3 reflection, it finds it cannot be satisfied because of

    4 the Defence evidence that may be put on, and the

    5 Prosecutor may also be in the embarrassing position of

    6 then having to seek by rebuttal to add further to the

    7 evidence, but it only can do that if it knows what the

    8 Trial Chamber's later decision is, so there are

    9 problems there.

    10 All of those problems, in the standard

    11 adversarial system, are dealt with by the Prosecutor

    12 making his decision as to how many bits of evidence he

    13 wants to put in this scale on one side to ensure that

    14 however much the other side puts other evidence on the

    15 other scale, the scale stays down on the ground. I'm

    16 the first to recognise that we may need to be more

    17 flexible than that here in the interests of economy of

    18 time, but there are obvious difficulties with that, and

    19 I think they were difficulties that arose in the

    20 original case of Tadic, where there was an indication

    21 that something was satisfactorily dealt with by

    22 evidence, and then some counter-evidence emerged to

    23 outweigh it.

    24 JUDGE MAY: The Rules do allow for that.

    25 MR. NICE: Certainly, yes.

  55. 1 JUDGE MAY: Because they allow rebuttal

    2 evidence.

    3 MR. NICE: Yes.

    4 JUDGE MAY: So you're not, as it were,

    5 stopped. You're not stopped from calling other

    6 evidence by the close of your case.

    7 MR. NICE: And I make it plain, I have no

    8 desire, as I've made it plain throughout, I have no

    9 desire to repeat evidence where something has been

    10 given and hasn't been challenged, because it will be my

    11 argument in due course that that evidence must be

    12 acceptable and sufficient.

    13 JUDGE MAY: We will consider these matters.

    14 Without reflecting, of course, on our decision, which

    15 we will have to give in due course, I'm grateful to the

    16 assistance that we've received in these arguments and

    17 on those who prepared all the material for us to

    18 consider.

    19 We will sit again at half past, and I hope we

    20 will have some evidence then.

    21 MR. NICE: Yes, the witness is here.

    22 JUDGE MAY: Which witness?

    23 MR. NICE: Dr. Donia.

    24 --- Recess taken at 4.14 p.m.

    25 --- On resuming at 4.35 p.m.

  56. 1 JUDGE MAY: Yes. Let the witness make the

    2 declaration.

    3 THE WITNESS: I solemnly declare that I will

    4 speak the truth, the whole truth, and nothing but the

    5 truth.

    6 JUDGE MAY: Mr. Nice, we have, first of all,

    7 the witness's expert report, which we've read. We have

    8 also your overview. Now, I understand you want to ask

    9 some questions of the witness. In those circumstances,

    10 they could be fairly short, I would hope.

    11 MR. NICE: Indeed, and what I was proposing

    12 to do was to get the witness to go through, very

    13 quickly, the maps which in colour are rather better

    14 than they are in black and white, in that way to set

    15 out the history, and to ask him for a couple of the

    16 conclusions most material, and that would be about it.

    17 Incidentally, I should say sitting on the

    18 bench or counsels' row is Mr. Tomljanovich from the

    19 OTP, with your leave today.

    20 JUDGE MAY: Yes.

    21 MR. NICE: What I propose to do, again with

    22 your leave, is, first of all, to get the witness to

    23 give his full name.

    24 THE WITNESS: Robert J. Donia.


  57. 1 Examined by Mr. Nice:

    2 Q. In your report, which the Chamber has read,

    3 you set out, at page 2, your personal history, which

    4 reveals how you studied, took your PhD. In the '70s

    5 and early '80s, you were a teacher. You then worked

    6 for Merrill Lynch, I think, in unrelated work but

    7 keeping a private interest in the area until retirement

    8 from that firm; meanwhile, in 1994 with John Fine,

    9 writing a book entitled "Bosnia and Herzegovina"?

    10 A. Yes.

    11 Q. You set out, in an appendix, your curriculum

    12 vitae in more detail, and I only desire to ask you two

    13 or three questions to supplement that.

    14 First, I think you became a speaker of the

    15 language at the time that you were studying in the

    16 1970s and early '80s.

    17 A. That is correct.

    18 Q. Although it may have gone rusty, you were

    19 able to revive it when you revived your interest in the

    20 area?

    21 A. In the 1990s, yes.

    22 Q. Your research, in the 1970s and '80s, did

    23 that include visits to the former Yugoslavia?

    24 A. Yes, it did. I spent a year in several areas

    25 of the former Yugoslavia in 1974, '75, principally in

  58. 1 Sarajevo.

    2 Q. Since your revived interest, what has been

    3 the approximate frequency of your visits? It says here

    4 "two or three trips a year," but is that about it?

    5 A. Since 1994, I've made two to three trips a

    6 year to the region for periods ranging from ten days

    7 to, more recently, six weeks.

    8 Q. In addition to visiting the area, do you

    9 maintain contact with other academics in the area when

    10 you're there?

    11 A. Yes, I do.

    12 Q. It may be, and you'll have to tell us or you

    13 may tell us when you're asked other questions, but it

    14 may be that academics divide along lines sometimes

    15 holding extreme views in one direction or another. Are

    16 you acquainted, first of all, with the works of those

    17 who hold views that differ from yours?

    18 A. I try to be, yes, and the one safe prediction

    19 is that they will differ.

    20 Q. You manage, so far as you can, to keep

    21 abreast of their publications and everything?

    22 A. Yes.

    23 Q. Thank you. The opinions which I seek from

    24 you relate to just a few topics. You know what they

    25 are. First, there's the question of whether there was

  59. 1 tribal hatred. Second, there's the boundaries of the

    2 constituent parts of the former Yugoslavia and claims

    3 for the legitimacy of those boundaries. Third, there's

    4 what was done in the 1990s, particularly in relation to

    5 arguments about boundaries, and, fourth, there's the

    6 question of international armed conflict.

    7 Is it your view that in relation to those

    8 topics upon which you hold an opinion, your knowledge

    9 of the history plays a part and perhaps an important

    10 part?

    11 A. Yes.

    12 Q. The history is set out in some detail as a

    13 resource for readers in your report?

    14 A. Yes.

    15 Q. Indeed, the maps show the position quite

    16 well, and I would ask you now, please, to have in front

    17 of you, or to use the ELMO if the usher would turn it

    18 on, those maps, and we'll run through them very quickly

    19 as a guide for the Chamber.

    20 I've had them all put together in little

    21 clips, they have separate exhibit numbers, but I think

    22 that they may prove to be a useful and quick tool.

    23 So if we start with Z1685, this shows what,

    24 please?

    25 A. This is a map from an atlas of East European

  60. 1 history, showing the hypotheses of various scholars

    2 regarding the origins of Slavic migrations in the 6th,

    3 7th, and 8th centuries.

    4 Q. That's the continuous red line, the dotted

    5 red line, and the other interrupted red line, being the

    6 these theses of different academics?

    7 A. Yes.

    8 Q. But however different the theses may be, the

    9 marks of migration are broadly similar; is that the

    10 position?

    11 A. There is general agreement that there was

    12 migration either in one, two, or more waves of Slavic

    13 speakers from one of these outlined areas to the area

    14 that I'm defining here to the north and east of the

    15 Adriatic Sea in the centuries that we've discussed.

    16 The map shows that there is very little scholarly

    17 agreement on the precise location of origin, and indeed

    18 there is further disagreement about the specific routes

    19 of migration and the number of waves of migration. But

    20 in general, this establishes the original homeland of

    21 the south Slavs and the possible routes that they took

    22 to areas that they've inhabited ever since.

    23 Q. You've described it in your paper, I think,

    24 as being sedentary, in the sense that once they had

    25 arrived, they stayed?

  61. 1 A. Unlike other migratory peoples who came and

    2 went, they indeed settled in this region, yes.

    3 Q. The next map, please, Z1687.

    4 You make the point in your paper that over

    5 the intervening centuries, the constituent parts of

    6 what was the former Yugoslavia had historically had

    7 greater and then smaller tracts of land to call their

    8 own, as it were?

    9 A. The political situation that developed in the

    10 centuries after the Slavic migrations led to the

    11 formation of several medieval empires or kingdoms. The

    12 first of these to arise was the Croatian kingdom in the

    13 9th century.

    14 Q. On the map we have here, the area coloured

    15 pink?

    16 A. This map is really a map of the Croatian

    17 kingdom at its presumed farthest domains, that is, in

    18 that area which it may well have ruled or covered in

    19 the period of approximately 925 to 930.

    20 Q. Next map, please, Z1648.

    21 A. Following the collapse of the Croatian

    22 kingdom, there arose a Serbian medieval empire, and

    23 this map shows the presumed farthest extent of the rule

    24 of the Serbian empire. Just to orient within the space

    25 that we are speaking about, the Drina River, that is,

  62. 1 the contemporary eastern boundary of Bosnia, runs right

    2 here, so this map shows that at one time virtually all

    3 of Herzegovina was a part of the Serbian empire, and

    4 parts of Bosnia as well were a part of the medieval

    5 Serbian empire in the time frame indicated on the map.

    6 Q. Is this map for Serbia a map showing as large

    7 an area of land that had ever been titled "Serbia"?

    8 A. Yes. There were small areas that were

    9 briefly also under Serbian rule, but this indicates, I

    10 think, its farthest extent for most purposes.

    11 Q. The next map, please, 1666.

    12 A. This is a map of the medieval Bosnian

    13 kingdom, which began as a State in a small area

    14 indicated by the dotted line here (indicating). Unlike

    15 the Serbian and Croatian States, Bosnia had inland

    16 origins and developed around a small island of land

    17 that had no coastal outlet originally. The date for

    18 this inner area is approximately 1180.

    19 I have my pointer right here just below the

    20 city of Bugojno (indicating) to provide perhaps some

    21 orientation on the map. This again is the River Drina

    22 (indicating), which is present-day Bosnia's eastern

    23 boundary.

    24 The Bosnian State extended in the next two

    25 centuries, and under Stepan Kotromanic, reached

  63. 1 approximately these boundaries by about 1326. It

    2 finally, at the greatest extent of its control in about

    3 1377, reached the outer boundaries to include virtually

    4 all of the northern Adriatic coast and, indeed,

    5 significant portions of Serbia, and this was the

    6 situation when the king was crowned in 1377 as both

    7 king of Bosnia and of Serbia.

    8 Q. Can we turn over, please, to the next two

    9 maps. First, 1651, which shows the Balkan Peninsula,

    10 1817 to 1877, and with that in mind also turn over to

    11 the next map, Z1652, where Bosnia-Herzegovina is shown

    12 perhaps in a triangular shape we more immediately

    13 recognise.

    14 A. Let me suggest we put 652 underneath and

    15 perhaps put 651 right on top of it.

    16 The reason for selecting these maps for

    17 illustration purposes is that with the advance of the

    18 Ottoman Empire into this part of the Balkans, indeed

    19 Ottoman control extended over much of those territories

    20 that were governed by the three medieval empires that

    21 we just identified. In the process, the area of Bosnia

    22 takes, for the first time, something which looks like

    23 its present-day contour. This would be a map from

    24 relatively late in the Ottoman administration, but the

    25 administrative units that made up Bosnia were, indeed,

  64. 1 in place within about a century or virtually all in

    2 place within a century of the initial Ottoman

    3 presence.

    4 In 1878, the European powers at the Congress

    5 of Berlin awarded Bosnia and Herzegovina to

    6 Austria-Hungary to administer, and at that point

    7 Austro-Hungarian rule took over using essentially the

    8 same boundaries, very few changes, that existed in the

    9 last years of Ottoman rule. The familiar triangular

    10 shape of Bosnia-Herzegovina is very identifiable in

    11 this map as well.

    12 Q. But, in fact, for how long had that shape of

    13 Bosnia-Herzegovina existed?

    14 A. By the late 19th century, we can say that the

    15 shape of Bosnia and Herzegovina existed for several

    16 centuries.

    17 Q. It's not shown certainly as to its eastern

    18 boundary on the map 1651?

    19 A. That's correct.

    20 Q. But what do you say about the reality of its

    21 eastern boundary, then?

    22 A. Well, the reality of its eastern boundary, it

    23 became an administrative reality early in the Ottoman

    24 period.

    25 Q. So with the familiar shape on Z1652, can we

  65. 1 go to the next map, 1662, which has been marked in hand

    2 as "1918"?

    3 A. This is a map of the constituent parts that

    4 came together to form the kingdom of the Serb, Croats

    5 and Slovenes in 1918, and again the very familiar shape

    6 of Bosnia as a triangular entity, Bosnia-Herzegovina,

    7 is recognisable. In fact, the Bosnia and Herzegovina

    8 entity was recognised as distinctive in the

    9 constitution of that kingdom, which was voted into

    10 effect in 1921, and remained an administered entity

    11 until 1924. Then its boundaries continued to be

    12 exacted the same as they were earlier until 1929.

    13 Q. The next map, please. The word "banovina"

    14 features in some of the evidence that we've heard. I

    15 think it's right that there are two events in the 20th

    16 century in particular where the word "banovina" may

    17 crop up in identifying relevant boundaries, and this

    18 map, Z1654, from 1929, is the first, and it may be a

    19 less relevant place where "banovina" has some

    20 significance?

    21 A. The word "banovina" derives its name from a

    22 territory -- or means a territory of a Ban, which was

    23 the word used for medieval rulers of Bosnia and

    24 certainly in Croatia, and therefore refers to a

    25 territory governed by a governor.

  66. 1 In 1929, upset with the restive nature of

    2 nationality relations in the kingdom of the Serbs,

    3 Croats and Slovenes, the king promulgated a -- he

    4 suspended the constitution and redrew the internal

    5 boundaries of the kingdom in such a way that they

    6 totally ignored nationality divisions and historical

    7 divisions and simply adopted natural features as

    8 guidelines. These are the banovinas, then, of the 1929

    9 act and prevailed as administrative units until 1939.

    10 Thus, for the first time for many centuries, Bosnia and

    11 Herzegovina lost its distinctive shape and its

    12 boundaries were disregarded in internal boundary

    13 formation.

    14 Q. And nationalities were not respected in the

    15 transection of nationality boundaries?

    16 A. That is correct, except in the case of the

    17 Slovenes to the north, who really did receive some

    18 respect for their national homeland.

    19 Q. The next map, please, 1665.

    20 A. In 1939 --

    21 Q. Just to cut you short for a second, this is

    22 the second place where the word "banovina" is likely to

    23 feature in people dealing with comparatively recent

    24 history, probably the more significant use. Can you

    25 explain this to us, please?

  67. 1 A. Yes. In 1939, another internal redefinition

    2 of boundaries took place after protracted negotiations

    3 between the Prime Minister of Yugoslavia, Cvetkovic,

    4 and the leader of the Croatian Peasant Party, Vlatko

    5 Macek, so this boundary solution which prevailed from

    6 August of 1939 until April of 1941 goes by the somewhat

    7 unmanageable name of the Cvetkovic-Macek Agreement and

    8 is frequently referred to, for shorthand, as the

    9 Banovina Plan or simply as the Sporazum, which means

    10 "agreement."

    11 Q. Just mark out, please, with a marker, the

    12 area of the banovina.

    13 A. (Witness complies)

    14 Q. Is that area greater or smaller than

    15 present-day Croatia?

    16 A. That is substantially greater than

    17 present-day Croatia.

    18 Q. If we look at the area to the bottom

    19 right-hand part of that banovina, we see Travnik,

    20 Bugojno, and was the Lasva Valley and Central Bosnia

    21 incorporated within the banovina?

    22 A. In fact, the Lasva Valley was a part of the

    23 Croatian banovina, and the boundary ran right through

    24 it. So the area that is generally being discussed in

    25 this proceeding was, in fact, a part of but right on

  68. 1 the boundary of the Croatian banovina.

    2 Q. This area of Croatian land, as it then was,

    3 is smaller than that medieval map which encompassed

    4 much more. But that apart, is this the largest amount

    5 of land that has ever been in Croatian control?

    6 A. Well, no. World War II gave the Croatian

    7 state more, but I think the importance of this

    8 configuration was that it has become a source of

    9 nostalgia and, indeed, a kind of a minimalist programme

    10 for expansion for Croatian nationalists ever since the

    11 banovina plan was abandoned in 1941 and, certainly, in

    12 the period after 1990.

    13 Q. Although, of course, like the present shape

    14 of Croatia, although to a different degree, it has, as

    15 it were, a hole, in the middle, doesn't it?

    16 A. Yes, it does. The large area which is,

    17 indeed, a substantial part of Bosnia-Herzegovina was

    18 left as part of the remainder of Yugoslavia.

    19 Q. The next map, please, 1657. This deals,

    20 indeed, with wartime Croatia, 1941, the yellow, please?

    21 A. The 1941 attack on Yugoslavia by Germany

    22 resulted in a divided occupation of the lands of

    23 Yugoslavia indicated by this heavy black line running

    24 right down the centre of the country. To the north of

    25 that line was German occupied, to the south of it,

  69. 1 southwest of it was Italian occupied. The large yellow

    2 area in the middle was the independent state of

    3 Croatia, in its local language abbreviation, the NDH,

    4 and included all of historical Bosnia-Herzegovina and

    5 much of the Croatian state that had existed on the eve

    6 of World War I.

    7 Q. Run by whom?

    8 A. It was run by the Ustasha, which were a group

    9 of collaborators with the German and Italian occupiers

    10 who were considered and may be considered as extreme

    11 Croatian nationalists.

    12 Q. Next map, please, 1660.

    13 A. At the end of World War II --

    14 Q. This is marked 1945, and tell us about this.

    15 A. This is the map of the republics, the

    16 socialist republics that made up the Socialist Federal

    17 Republic of Yugoslavia. These boundaries were

    18 essentially drawn in 1945 and did not change until the

    19 early 1990s, and, in fact, the boundaries largely still

    20 exist as they are here, although in a different

    21 political form. The traditional, historical boundaries

    22 of Bosnia-Herzegovina are, indeed, reestablished with

    23 the Socialist Republic of Bosnia-Herzegovina one of six

    24 socialist republics making up federal Yugoslavia.

    25 Q. So subject to the interruption first by the

  70. 1 ten-year banovina map and then the two-year banovina

    2 map and then the occupation, for how many years had

    3 this shape of Bosnia-Herzegovina been an identified

    4 country?

    5 A. Well, it's almost 500 years. It's 500 years

    6 or, perhaps, a little bit more or less.

    7 Q. Can we now turn, please, to the other map,

    8 the separate map? No, the big one. This one the

    9 Chamber doesn't yet have -- I'm sorry. They do have

    10 it; I don't. It's a little big for the ELMO, but I

    11 think we can deal with it in segments. This is a map

    12 built on census information; is that correct?

    13 A. That's correct, the census of 1991.

    14 Q. To interpret the map, let's take any of the

    15 circular graphs, for example, the biggest one,

    16 Sarajevo, if you can just point to that. It's easiest

    17 for us all to see.

    18 A. (Indicating)

    19 Q. What is shown there, as the key reveals, is

    20 the total population of that particular city broken

    21 down as to green for Muslims, a rather, in the

    22 photocopied form, muddy-brown/red colour, the right,

    23 for Serbs, and then blue for Croats, white for others,

    24 and then the other piece of the chart, 10.7, what's

    25 that?

  71. 1 A. That is the percentage of persons who

    2 declared themselves as Yugoslavs.

    3 Q. If we look at the map overall, obviously, we

    4 can simply look for colour to see where any particular

    5 group is most concentrated. In some places, green

    6 comes to the eye, in some places, blue, and so on, but

    7 what can you tell us about this map, from your point of

    8 view, that is of significance?

    9 A. This map features the breakdown of the

    10 population of towns and cities of Bosnia and

    11 Herzegovina, and it shows that, with a very few

    12 exceptions, those towns and cities were truly mixed in

    13 population by national declaration, and the composition

    14 of Bosnia-Herzegovina was such that, again, with a few

    15 exceptions, boundary drawing between the nationalities

    16 is simply not a feasible exercise.

    17 Let me go over briefly the exceptions. First

    18 is an area to the west of the city of Mostar which

    19 shows here as almost exclusively blue, which is a

    20 virtually exclusively Croatian population in Western

    21 Herzegovina. To the far northwest is a nearly

    22 exclusively Muslim population, to the north and west of

    23 Bihac, and then finally, a relatively sparsely

    24 populated, almost exclusively Serbian area here in the

    25 extreme western part of Bosnia.

  72. 1 With the exception of these population

    2 concentrations, the picture is, indeed, thoroughly

    3 mixed for the towns and cities, and with respect to the

    4 rural areas, a similar pattern of very mixed population

    5 generally prevails, with the exceptions I've noted.

    6 Q. Thank you very much. Back to the clip of

    7 maps, we can take the large one off the ELMO, please.

    8 The next map, please, Z1675.

    9 A. This is a map which indicates, by outline,

    10 the municipalities included in the declarations, the

    11 self-declarations of the Croatian Community of

    12 Herceg-Bosna, which was November 18th, 1991, and of the

    13 Posavina, an area that borders Croatia in the northern

    14 part of Bosnia, which was just one week earlier in

    15 November of 1991.

    16 Q. The last map, Z6709, perhaps a little out of

    17 time to deal with it because I may deal with it by

    18 questions a little later, but nevertheless let's deal

    19 with it now as a map, the Vance-Owen Plan at the top,

    20 the 2nd of January, 1993, and the Serb proposal for

    21 union of the three republics in June of 1993.

    22 Comments, please, as to, first, the Vance-Owen Plan.

    23 A. The top map of January 1993 shows the

    24 proposed establishment of provinces under the

    25 Vance-Owen Plan as first made public in January of

  73. 1 1993. It shows that while there is substantial

    2 convergence between the Croatian Community of

    3 Herceg-Bosna, it, indeed, gives a very generous

    4 proportion of territory to the Croatian-dominated

    5 provinces, first of all, relative to the population

    6 distribution and, second, relative to subsequent

    7 international proposals.

    8 The bottom map is a map that was proposed

    9 after the top one was rejected by the Serbian side in

    10 April and May of 1993 and shows that the Posavina area

    11 here is substantially cut down and, indeed, that there

    12 is a deep protrusion into the Croatian territories that

    13 were awarded in the earlier map in the area north of

    14 Mostar and in the Central Bosnia region.

    15 Q. Thank you very much. A couple of topics

    16 related to that geographical history. First, the

    17 arrival of Muslims in this area at all, can you just

    18 explain that for us, please?

    19 A. The Muslims did not actually arrive. They

    20 were converts to Islam from the indigenous Slavic

    21 population in the period immediately prior to and

    22 during the first 140 years of the Ottoman rule, so

    23 roughly from 1460 or so through about the year 1600.

    24 It will be remembered that this was a period of

    25 substantial religious change throughout Europe, in

  74. 1 fact, it coincides with the reformation, but the

    2 conversions to Islam in Bosnia took place not in

    3 response to any massive effort at forced conversions by

    4 the Ottoman rule but rather through conversions on

    5 village by village, individual by individual, over an

    6 extended period of time and from various sources.

    7 Many of the converts to Islam were Catholic

    8 before, some were members of the medieval Bosnian

    9 church, and a few came from yet other groups. The --

    10 JUDGE ROBINSON: Dr. Donia, you said that

    11 some of this actually happened prior to the Ottoman

    12 arrival. Could you explain that?

    13 A. Yes.

    14 JUDGE ROBINSON: When did that come about?

    15 A. It was very limited in terms of what we know,

    16 but, indeed, as we sit here, the authorities in

    17 Sarajevo are excavating a tekija that existed prior to

    18 the Ottoman conquest of Bosnia. So we know there was

    19 some Islamic presence in the very few years just prior

    20 to the Ottoman conquest of the area. It presumably was

    21 quite limited and may very well have been only a rural

    22 or urban phenomenon.

    23 JUDGE BENNOUNA: (Interpretation) I should

    24 like to address a question to the expert, Mr. Nice.

    25 Professor Donia, you said, regarding the

  75. 1 conversion to Islam around the middle of the 15th

    2 century, you told us a moment ago reading the maps that

    3 Bosnia existed as an entity since the 14th century.

    4 What is the distinction between Bosnia as an entity

    5 that you showed us on the map since the 14th century

    6 and this Islamisation or conversion to Islam? Are they

    7 the same Bosniaks or does that have nothing to do with

    8 what we saw in the previous entry in the Middle Ages on

    9 the maps?

    10 A. There were no conversions to Islam during the

    11 period of the medieval Bosnian state, except for

    12 perhaps the very last few years of its existence. So

    13 the medieval Bosnian state existed independent of and

    14 prior to the conversions to Islam that took place

    15 starting at about 1460.

    16 JUDGE BENNOUNA: (Interpretation) I have

    17 another question for you, Professor Donia. You said it

    18 was the conversion of Slavs to the Islamic faith. What

    19 is the distinction between what you call the Bosniak

    20 state? We can't even talk about a state because the

    21 state came into being much later. So a Bosnian entity,

    22 what distinguished it in the 14th century?

    23 A. The Bosnian state, what I've referred to as

    24 the medieval Bosnian kingdom, existed with a king from

    25 1377 until 1391 and ultimately fell to Ottoman

  76. 1 domination. The term "Bosnian" refers to the

    2 inhabitants of the territory of Bosnia-Herzegovina,

    3 which, as you've just indicated, exists as an entity

    4 for many centuries, but as a state, only in this period

    5 of the medieval era and then in the immediate years of

    6 our present decade.

    7 The term "Bosniak," which is used now since

    8 1993 by the members of the group that used to be known

    9 as the Bosnian Muslims, refers to a nationality and

    10 should be distinguished from the residents of the

    11 territory of the state.

    12 MR. NICE:

    13 Q. Just picking up on Judge Bennouna's questions

    14 and your answers to them, the territory that was the

    15 medieval Bosnian kingdom, did that remain an identified

    16 unit, not withstanding its domination by others, or

    17 not?

    18 A. The shape of the medieval Bosnian kingdom at

    19 its farthest extent included, perhaps we'll recall the

    20 entire northern Dalmatian coast, so when the Ottoman

    21 administration began and the area was conquered by the

    22 Ottomans and also partly by Venice, that is when Bosnia

    23 first assumed its presently identifiable shape, that

    24 is, Bosnia lost its coastal territories and became an

    25 inland state with its familiar triangular shape in the

  77. 1 first century of Ottoman rule.

    2 Q. And retained those boundaries, broadly

    3 speaking, thereafter?

    4 A. And retained those boundaries, broadly

    5 speaking, under Ottoman, Austro-Hungarian, Yugoslav,

    6 royal Yugoslav, and subsequent socialist Yugoslav

    7 rule.

    8 Q. Was that identity of territory being or not

    9 being built on religion in any way?

    10 A. It was not, per se, built on religion or

    11 religious identification.

    12 Q. Perhaps that can conveniently lead me to a

    13 next topic upon which I want your assistance. It is

    14 said sometimes that what happened in the 1990s

    15 reflected ancient tribal hatreds in

    16 Bosnia-Herzegovina. Your comment, please.

    17 A. The notion of ancient tribal hatreds, that

    18 is, that people in this region have been killing each

    19 other by nationality or religion for many centuries

    20 really first entered the region as a distinct belief in

    21 the early 1990s. It was advocated by diplomats and

    22 leaders of western countries who wanted to characterise

    23 the conflict in such a way that they could justify

    24 inaction or lack of policy initiatives to end the

    25 conflict. It was also adopted by many journalists and

  78. 1 writers who wanted to paint this conflict as exotic,

    2 Oriental, interesting, and one in which wild, savage

    3 people were killing one another.

    4 I find no basis for this belief in the

    5 national views or the intellectual views, really, of

    6 any of the south Slav nationalities. It was a western

    7 imposition of the early 1990s. I find little to

    8 justify this view in the history of

    9 Bosnia-Herzegovina. I am not arguing that there was

    10 not conflict, contention, and violence, but that

    11 violence was not, until the 20th century, national or

    12 ethnic, nor religious in the main. It was frequently

    13 social between peasants and landlords or between

    14 outside countries, particularly in the Middle Ages,

    15 seeking to invade, conquer small parts or all of

    16 Bosnia. So violence, there was, contention, there was,

    17 but I find nothing to say that there was tribal

    18 conflict after sometime in the Middle Ages when tribes

    19 essentially disappeared from the scene and only

    20 occasional limited instances of national, ethnic, or

    21 religious conflict of a violent form through the

    22 centuries up until the late 19th century.

    23 Q. Throughout those centuries, how many

    24 different religions were represented in the area?

    25 A. Well, many. The four primary ones were

  79. 1 Catholicism, Orthodoxy, Islam, and Judaism.

    2 Q. The next topic, which we can deal with

    3 shortly, with your very abbreviated summary of the

    4 history, at the time of the conflict in the early

    5 1990s, what reliance, if any, was placed on that

    6 history by leaders such as President Tudjman?

    7 A. I'd like to make the analogy to the old man

    8 staring in the mirror and seeing in the reflection a

    9 very young person. I think that the entire conflict

    10 represented, in many ways, a revival or invention of

    11 historical understanding based on previous events that

    12 were, in many cases, fabricated or greatly misleading.

    13 But the use of the medieval empires to form nationalist

    14 claims, the use of religious influences to advance

    15 cultural claims, the use of the banovina plan of 1939

    16 to advance territorial claims, and even the use of

    17 vocabulary, with the Croats and Muslims developing a

    18 pejorative term for the Serbs who were actively

    19 fighting them which was Chetniks, or those Croats who

    20 were actively fighting which became Ustasha, these all

    21 had historical origins, as did the references to

    22 Bosnian Muslims as Turks, which, of course, they are

    23 not and were not but nevertheless was a pejorative term

    24 derived from historical understanding.

    25 Q. And President Tudjman, in particular?

  80. 1 A. President Tudjman, in particular, developed

    2 the view, when writing as a historian in the 1970s,

    3 that Bosnia, in whole, belonged to Croatia. He

    4 specifically argued that Bosnia was part of the

    5 economic and geopolitical essence, if you will, of

    6 Croatia and developed the view that the Bosnian Muslims

    7 were essentially Croats. He is frequently quoted as

    8 saying that 80 per cent of the Muslims were Croats.

    9 Now, on that basis, he derives the argument

    10 then that the Croats enjoy a demographic majority in

    11 Bosnia, which would be true if, indeed, the Muslims

    12 were Croats.

    13 He further, in the course of the pragmatic

    14 events of the early 1990s, adopted a somewhat more

    15 pragmatic fallback position which was to advocate the

    16 development of a Croatia that extended to the old

    17 banovina line of 1939.

    18 Q. That's the second of the banovinas, the one

    19 that is the same shape as present Croatia but with more

    20 territory?

    21 A. Yes.

    22 Q. So far as leaders of the Croat community in

    23 Bosnia-Herzegovina itself is concerned, what was their

    24 interaction with President Tudjman on the evidence

    25 available?

  81. 1 A. There was a great deal of interaction between

    2 President Tudjman and the Croatian leadership in

    3 Bosnia-Herzegovina, if not daily, one could say at

    4 least very regularly. Many of the Croatian leadership

    5 in Bosnia essentially broke down into two viewpoints,

    6 one which was that Bosnia-Herzegovina represented a

    7 state, an entity in which the national aspirations of

    8 all Croats could be realised. A small group developed

    9 the view that that could take place only within a

    10 distinct territorial unit, and it was with that group

    11 that President Tudjman had the greatest contact and

    12 developed the strongest support. He sponsored them, in

    13 many instances, gave them specific directives and broad

    14 programmes to implement and agendas to carry out.

    15 Q. What about Karadjordjevo, please?

    16 A. In March of 1991, President Tudjman and

    17 President Milosevic of Serbia met in the Karadjordjevo,

    18 the former hunting lodge of the royal family, and

    19 reportedly discussed the partition of Bosnia. This

    20 meeting is now the subject of many hundreds of articles

    21 and discussions, but on the basis of participants at

    22 the meeting, I think we can say now that there was an

    23 agreement in principle between the two of them to

    24 pursue the division of Bosnia but no agreement on

    25 specifically where that dividing line would be. In

  82. 1 fact, a commission was established to draw those lines

    2 but never was able to reach an agreement.

    3 From that point on, one can clearly trace the

    4 line through the behaviour of the Croat leadership that

    5 supported division in response to President Tudjman's

    6 initiatives, and that represents the point really from

    7 which the Croatian agenda for division of Bosnia with

    8 the eye towards ultimate annexation to Croatia emerges.

    9 Q. In the absence of annexation, when the

    10 Vance-Owen Plan was proposed, we needn't look at it

    11 again, but you distinguished it from the later plan of

    12 June 1993 which had less territory going to Croatia,

    13 when the Vance-Owen Plan was advanced, what was the

    14 perhaps understandable reaction of the Croats?

    15 A. Mr. Mate Boban signed it as soon as he could

    16 find a pen.

    17 Q. A word on the June 1991 meetings, please.

    18 A. In June of 1991, which is about three months

    19 after the Karadjordjevo meeting, President Tudjman held

    20 two meetings with the leaders of the various

    21 municipalities of areas of Bosnia and Herzegovina in

    22 which Croats had a substantial demographic presence.

    23 The first of these was on June 13th, 1991, and the

    24 second was on June 20th, 1991.

    25 In those meetings, there was a great deal of

  83. 1 discussion, as reported subsequently in the press, of

    2 the various approaches to Bosnia and Herzegovina, but

    3 the directive that represented the outcome of those

    4 meetings was to establish, over time, a separate

    5 Croatian community in Bosnia and Herzegovina which

    6 would tend towards separation.

    7 Q. Who was present on behalf of the Croatians,

    8 do you know, at those meetings in June or -- I'm

    9 sorry.

    10 A. Well, there were two meetings. One was for

    11 the Herzegovinan Croats and one for the Bosnian Croats,

    12 and Mr. Dario Kordic was reported being at the second

    13 meeting and as having taken a leadership role in the

    14 discussion.

    15 Q. Throughout the war, the influence of Croatia,

    16 if at all, on what was happening in Bosnia-Herzegovina?

    17 A. The leadership of the Croatian state, by

    18 which I mean President Tudjman and his regime, played a

    19 leading role throughout the war, frequently negotiated

    20 on behalf of the Bosnian and Herzegovinan Croats,

    21 literally spoke on their behalf and advocated their

    22 position.

    23 In addition, there was substantial military

    24 arms, actual troop support, and financing of the troops

    25 of the Bosnian Croat forces. In fact, to this day, the

  84. 1 Croat forces in Bosnia receive part of their income

    2 directly from Croatia. So both on the military front

    3 and on the political front, the Croatian state was

    4 exercising leadership and direction for the Croats of

    5 Bosnia-Herzegovina.

    6 Q. Can you give me some examples of negotiations

    7 by President Tudjman?

    8 A. President Tudjman, first of all, met, at

    9 first instance, clearly at Karadjordjevo with this

    10 meeting with President Milosevic in March of 1991. On

    11 the first 15 days of January in 1992, he met directly

    12 with the member of the presidency of the Serbs of

    13 Bosnia, Nikola Koljevic, in Zagreb and was informed of

    14 the Serbian plans to proclaim a separate republic,

    15 which took place right about that time.

    16 Subsequently, he negotiated with Lord Owen

    17 and Mr. Vance, he negotiated with various other people

    18 in the International Community, and in particular had a

    19 very interesting meeting with U.S. Ambassador Warren

    20 Zimmerman on January 14th, 1992, in which he tried for

    21 an hour to convince him that Bosnia should belong to

    22 Croatia.

    23 Finally, even in the disillusion of

    24 Herceg-Bosna, which was mandated by the Dayton

    25 Agreements, President Tudjman met with President

  85. 1 Clinton of the United States on April 2, 1996, and

    2 after that meeting pledged that Herceg-Bosna would be

    3 dissolved. It subsequently was dissolved or to the

    4 satisfaction of the International Community, in any

    5 case, later that fall.

    6 Q. You adopt your report as the balance of your

    7 evidence in chief, I think.

    8 A. I would be glad to.

    9 Q. Thank you. You'll be asked some further

    10 questions.

    11 JUDGE MAY: Cross-examination tomorrow. How

    12 long do you anticipate, Mr. Stein?

    13 MR. STEIN: I expect I'll be Tuesday and,

    14 with the Court's permission, Wednesday, and we'll see

    15 how we go from there.

    16 JUDGE MAY: We'll start with Tuesday.

    17 MR. STEIN: Always a good beginning.

    18 JUDGE MAY: I'm not so sure about Wednesday.

    19 Dr. Donia, could you be back, please,

    20 tomorrow afternoon at half past two, and we'll go on

    21 with your evidence.

    22 THE WITNESS: Yes, sir, I will.

    23 JUDGE MAY: It's a rule here that witnesses,

    24 once they've begun their evidence, should not speak to

    25 anybody about their evidence, and that includes the

  86. 1 Prosecution. So would you remember that, please?

    2 THE WITNESS: Yes, Mr. President.

    3 JUDGE MAY: Thank you. Half past two

    4 tomorrow then.

    5 --- Whereupon the hearing adjourned at

    6 5.30 p.m., to be reconvened on Tuesday,

    7 the 20th day of July, 1999, at 2.30 p.m.