1 Monday, 17th August 1998
2 (Open session)
3 (The accused entered court)
4 --- Upon commencing at 9.45 a.m.
5 THE REGISTRAR: Case number IT-95-16-T, the
6 Prosecutor against Zoran Kupreskic, Mirjan Kupreskic,
7 Vlatko Kupreskic, Drago Josipovic, Dragan Papic,
8 Vladimir Santic.
9 JUDGE CASSESE: Good morning. May I have the
10 appearances, please, for the Prosecution?
11 THE INTERPRETER: Your microphone,
12 Mr. President, please.
13 JUDGE CASSESE: I've got to get used to all
14 this new equipment. Sorry. Appearances for the
15 Prosecution, please?
16 MR. TERRIER: Good morning, dear Judges. My
17 name is Franck Terrier, I shall speak French, and I am
18 appearing on behalf of the Prosecution together with
19 Mr. Moskowitz who will speak English.
20 JUDGE CASSESE: Thank you very much. For the
22 THE INTERPRETER: Microphone, please,
24 MR. RADOVIC: Ranko Radovic, attorney from
25 Zagreb, appearing on behalf of Zoran Kupreskic, and I
1will speak Croatian.
2 MS. SLOKOVIC-GLUMAC: Good morning, Your
3 Honours, I am Jadranka Slokovic-Glumac, attorney from
4 Zagreb, appearing on behalf of Mirjan and Zoran
6 MR. KRAJINA: Your Honours, my name is
7 Borislav Krajina, attorney from Sarajevo, appearing on
8 behalf of Mr. Vlatko Kupreskic.
9 MR. PAR: Good morning, Your Honours, my name
10 is Zelimir Par, attorney from Zagreb, appearing on
11 behalf of the accused Vlatko Kupreskic.
12 MR. SUSAK: Good morning, I am Luko Susak,
13 appearing on behalf of Mr. Drago Josipovic.
14 MR. PAVKOVIC: Good morning, Your Honours. I
15 am attorney Petar Pavkovic, defence council for
16 Vladimir Santic.
17 MR. PULISELIC: Good morning, Your Honours.
18 I am attorney Petar Puliselic, attorney from Zagreb,
19 appearing on behalf of the accused Dragan Papic. On my
20 right, my assistant, Nika Grospic.
21 JUDGE CASSESE: I hope that all the accused
22 can hear me in a language that is accessible to them.
23 Can you hear me?
24 Now, first of all, I would like to apologise
25 for being late, for the late beginning of our hearing.
1It's not our fault, but I will ask now the registrar to
2 ask the Dutch police to try to be on time in bringing
3 here all the accused so that every morning we can start
4 at 9.30 sharp.
5 I would like now, first of all, to go through
6 a few outstanding procedural matters. Afterwards, we
7 will hear arguments on some of these matters, and then
8 we intend to break for 30 or 40 minutes to decide on
9 those questions, if any, and before we start the trial
10 proper, we will then go through a few sort of legal
11 housekeeping matters which must be dealt with before we
12 start with the trial proper.
13 Now, let me list what I regard, after reading
14 all these documents, as outstanding matters to be
15 disposed of before we start with our trial. I will
16 list four items, and I will then ask both parties to
17 tell me whether they feel that there are other items
18 which I have probably neglected.
19 The first item which I think we have to
20 discuss is whether or not any brief has been filed by
21 Defence to respond to the Prosecutor's pre-trial brief
22 pursuant to an order signed by Judge Mumba on the 11th
23 of August, so this morning we have received only a
24 document from Mrs. Glumac. I wonder whether the other
25 Defence counsel have also filed any documents.
1Remember the deadline was last Friday at 1.00 p.m.
2 This is will be the first item.
3 The second item is the motion filed by
4 counsel for Zoran and Mirjan Kupreskic on the 13th of
5 August, and relating to the production of witness
6 statements by the Prosecution.
7 Third item is the consideration of some of
8 the outstanding issues raised in the motion by counsel
9 for Vlatko Kupreskic. This was the motion requesting
10 the withdrawal of indictment. You may remember that
11 Judge Mumba issued an order on this motion dismissing
12 the motion but reserving for this morning any
13 outstanding matters.
14 The last, fourth and last item, is the
15 possible consideration in ex parte proceedings of two
16 ex parte motions filed by the Prosecution. I will ask
17 the Prosecution whether they want to present oral
18 argument on both motions, or on one of them. Of
19 course, this will be ex parte proceedings. After that,
20 we will be ruling.
21 So on all these issues, as I say, we intend
22 to hear -- on most of them to hear arguments from the
23 parties, and then, in our recess this morning, to
24 decide on the matter. After that, we will then resume
25 our deliberations, our hearing, and after dealing with
1the housekeeping matters, we will then move on to our
2 trial proper, we will commence our trial proper.
3 Now, may I ask the parties whether they feel
4 that there are other matters which I have probably
5 neglected or forgotten to mention here which, in their
6 view, should be dealt with at the outset, before we
7 start with the trial proper?
8 Let me, first of all, turn to the
10 MR. TERRIER: Your Honour, regarding the
11 legal points and issues you mentioned, I can't think of
12 any other issues to deal with.
13 As to housekeeping matters, it may be too
14 soon, too early, to mention them, but I think it might
15 be useful to mention the issue of protective measures
16 to be attributed to some witnesses, and also we should
17 speak about the way the Court believes we should deal
18 with these issues in order to waste as little time as
20 JUDGE CASSESE: May I ask the Defence counsel
21 whether they feel there are other matters which should
22 be discussed? No matters? Yes, please. I apologise,
23 but since we still can't remember your name, could you,
24 when you take the floor, first of all mention your name
25 so that -- gradually in a few days we will of course
1remember very well all your names.
2 MR. KRAJINA: Attorney Borislav Krajina
3 appearing on behalf of Borislav Kupreskic.
4 We would say, first of all, that we agree
5 with what you have said, Your Honour, Mr. President,
6 but within the framework of the points you have
7 mentioned, referring to the motion of the Defence of
8 Vlatko Kupreskic, that we also examine and finally deal
9 with the problem of the restoration of the property and
10 documents of the accused Kupreskic, a matter that we
11 have still not managed to resolve, and the Defence
12 considers this to be important.
13 Secondly, we would like our motion and
14 requests for specialist examinations of the accused
15 Kupreskic to be carried out because he's 100 per cent
16 invalid and he has a heart problem as well, a heart
18 JUDGE CASSESE: All right. Thank you. Yes,
19 we will add these two points to our list of outstanding
20 matters. I will therefore start with the first
21 question; namely, whether the other Defence counsel
22 other than Mrs. Glumac intend to file any response to
23 the Prosecutor's pre-trial brief.
24 We have, in reading Mrs. Glumac's brief, we
25 have seen that, according to her, it is too early now
1for the Defence counsel to file a detailed brief
2 setting out the various points they admit and the
3 points they challenge. I wonder whether the other
4 Defence counsel agree with Mrs. Glumac, and in this
5 case, we would wait for two or three weeks because this
6 is what Mrs. Glumac suggested, that probably, in a few
7 weeks' time, Defence counsel would be in a better
8 position to file detailed briefs.
9 Do all counsel agree with the position taken
10 by Mrs. Glumac? In this case we would later on rule on
11 this matter, but I for one think it is quite
12 appropriate for all of them to get some more time.
13 Yes, Mr. Krajina? Yes, please.
14 MR. KRAJINA: I should like to repeat, Your
15 Honour, that we did, in due time, that is seven days
16 after we received the pre-trial brief of the
17 Prosecution, that we did file a reply and respond in
18 detail to that brief.
19 MS. SLOKOVIC-GLUMAC: Mr. President, may I
20 just say that this letter does not have the value of a
21 pre-trial brief. It is just a letter addressed by the
22 Defence team. My intention was to write this on behalf
23 of all because we are all in the same position, and I
24 believe that we would all benefit from some additional
25 time, especially with respect to the legal issues
1raised in the pre-trial brief of the Prosecution.
2 As for the facts of the matter, may I add a
3 point which is common to all the Defence attorneys?
4 There are some facts that we agree with; therefore, we
5 admit certain facts. But they have been interpreted in
6 such a way and placed in such a context that if we were
7 to elaborate on all the circumstances which, in our
8 view, the Prosecutor has misinterpreted, that would
9 already be a defence proper. So that if we were to
10 start to do this, we would have to comment on each
11 individual point, and this would, in effect, constitute
12 our whole defence, and that is why I think we need to
13 clear up how much of this the Trial Chamber expects us
14 to do in assisting you before the actual trial.
15 So that is our question. To what extent can
16 we enter into some of those counts, because I think the
17 burden of proof is on the Prosecution, and they are the
18 ones that have to present the evidence, and we feel at
19 a disadvantage because we still haven't received all
20 the documents and all the statements, and we already
21 have to start with our defence, so I would like to ask
22 for your assistance.
23 JUDGE CASSESE: Thank you. Before I give the
24 floor to other Defence counsel, let me point out that
25 we had in mind, of course, the possibility of the
1Defence counsel and the Prosecution to come to some
2 sort of agreement on points of fact and law on which
3 they would agree, as we did in Dokmanovic. You may
4 remember in Dokmanovic, after a few weeks, probably
5 three or four weeks, the Prosecution and the Defence
6 were able to come together and prepare a list of facts,
7 not allegations, about the accused, because I realise
8 from your documents that, of course, you contest
9 whatever the Prosecution has stated with regard to all
10 of the accused.
11 But we thought of issues such as whether or
12 not an armed conflict was underway on that particular
13 day, what sort of armed conflict, and other legal
14 issues on legal matters. So I wonder whether, at some
15 stage, you could come together and try to reach a sort
16 of agreement so that we don't need to go into those
17 particular items at great depth. Of course, it depends
18 on you. We don't want to press you. This is only a
19 means of speeding up -- we thought this could be a good
20 way of speeding up the whole trial so that we would
21 concentrate on the major bones of contention on the
22 issues of fact and law and we would, in a way,
23 disregard those particular matters on which both
24 parties fully agree.
25 Let us see whether, in a few weeks' time, you
1are in a position, after maybe talking with the
2 Prosecution, to come to this sort of agreement, and
3 then you could put on paper, on a document, the various
4 items which are not in dispute between the two parties.
5 Yes, please.
6 MR. RADOVIC: My name is Ranko Radovic. In
7 principle, we have nothing against meeting with the
8 Prosecutor, but I think it will be very difficult for
9 us to come to any kind of legal or factual agreement.
10 The only agreement between us and the Prosecution can
11 be over the fact that there was a conflict on the 16th
12 of April in Ahmici. Everything else will be contested.
13 Furthermore, as far as legal issues are
14 concerned, again we have a completely opposite position
15 to the Prosecution. The Prosecution, in its pre-trial
16 brief, refers to precedents from the Tadic case.
17 However, the Tadic case cannot be a precedent for this
18 case since the Tadic case applies to a system of camps
19 or prisons, whereas this case refers to a completely
20 different factual situation.
21 Furthermore, the Prosecutor refers to certain
22 points from the Nuremberg trials, but he forgets that
23 at that trial the leaders of the Nazi system were on
24 trial, whereas in this case persons from the area of
25 Vitez were on trial who were, in fact, defending their
1homes. In Nuremberg, it was the leaders who were on
2 trial, and here we have people who are at the tail end
3 of events who are on trial, so there is nothing in
4 common between the two.
5 When the time comes, we will elaborate on
6 this point in legal terms but I think the precedents
7 referred to by the Prosecutor cannot be acceptable to
8 us under any conditions.
9 JUDGE CASSESE: Yes. Let me again -- thank
10 you so much for your comments. Now, I see that two
11 more Defence counsel would like to address this
12 particular issue. Let me make an appeal to you to be
13 as short as possible because, of course, you may
14 remember that at the outset, when we presented to both
15 parties our guidelines, to which I will come back later
16 on, guidelines for the conduct of proceedings, we
17 insisted that Defence counsel should try not to repeat
18 statements that normally there should be a coordinating
19 Defence counsel who would address issues on behalf of
20 all Defence counsel so as to shorten the time devoted
21 to discussion of particular procedural matters.
22 For the time being, I think it is quite
23 proper for the two Defence counsel to address the
24 particular issue.
25 Yes? Who was first?
1MR. PULISELIC: My name is Petar Puliselic.
2 I should like to be very brief, but I would inform the
3 Court that I too have submitted a separate motion in
4 addition to the joint one by Mrs. Glumac. I have
5 submitted a separate motion in which I refer briefly to
6 the Prosecutor's pre-trial brief. That's all I wanted
7 to say.
8 JUDGE CASSESE: Thank you, Mr. Puliselic.
9 It's a bit difficult, I apologise, but gradually I will
10 learn to pronounce your name.
11 MR. PAVKOVIC: My name is Petar Pavkovic
12 appearing on behalf of Vladimir Santic. There is no
13 doubt, Mr. President, the points that you have put on
14 the agenda now merit our special attention, but may I
15 be allowed to refer to the obligation of the Defence so
16 as to avoid the impression that I have now that the
17 Defence has omitted to do something in due course.
18 According to the ruling of the Court on the
19 28th of July, it had to submit a joint reply to the
20 pre-trial brief and to the indictment. I and my
21 colleagues have fulfilled our obligation and have
22 supplied our responses in relation to the indictment in
23 which we present our positions, so the only thing that
24 remains undisputed between us is that this fact
25 occurred. Everything else is disputed in the position
1of the Defence.
2 As for our reply to the pre-trial brief of
3 the Prosecution, that brief was received by us very
4 late. Because of the Prosecutor, who did try to
5 explain the delay, but that is the reason why we were
6 unable to meet our obligation in this particular case.
7 Therefore, I agree that we should today
8 establish certain procedural matters so that the
9 Defence may be able to assist the Trial Chamber in
10 understanding its position regarding the indictment.
11 As regards legal matters, I think that we
12 first have to clear up the fact that from Roman times,
13 we know that when we know the facts, only then can we
14 talk about the law. Thank you.
15 JUDGE CASSESE: Thank you. To wind up the
16 discussion of this matter, I would say that it is
17 right, as quite a few -- I mean, all Defence counsel
18 have pointed out that -- all of them had already
19 submitted a short response to the request made by the
20 Trial Chamber that they should try to address the
21 points raised in the Prosecution's pre-trial brief.
22 However, since we felt -- and this was also the views
23 of the Prosecution -- that those responses were a bit
24 too concise, we, Judge Mumba, on behalf of the Trial
25 Chamber, in order requested Defence counsel to, and I
1read out the order, relevant part: "To set out those
2 points, if any, of the indictment in brief which are
3 admitted, those which are denied, and the grounds for
4 so doing and setting out in general terms, setting out
5 in general terms the defence to the indictment."
6 We do appreciate that it is probably too
7 early for the Defence to comply with the order issued
8 by the Trial Chamber, and we hope that, in due time,
9 maybe three, four weeks' time, all Defence counsel, or
10 at least some of them, will be able to produce such
11 documents. It is not a binding request. If you feel
12 that you are not able, as I say, to set out in detail
13 all the points of fact and law which you agree on and
14 those which you contest, so much the better. If you
15 feel that you are not in a position to do so, then we
16 will have to wait until maybe the end of the
17 Prosecution case.
18 By the same token, I would also appeal to you
19 to try see whether you can come to some sort of
20 understanding or agreement with the Prosecution on
21 points of agreement and disagreement. This is again a
22 sort of appeal. Again, if you -- and, of course, you
23 have already understood the rationale behind this
24 appeal from the Court, namely, to try to narrow down
25 the main issues of disagreement. If we are not in a
1position to do so, we will wait and see what happens
2 later on.
3 I think we should now move on to our next
4 item which is more complex and more serious, but before
5 doing so, I see that Mr. Terrier would like to take the
6 floor. I saw that -- did you intend to address the
7 Court on this particular point?
8 MR. TERRIER: Yes, Your Honour, if you allow
9 me to, just two brief remarks.
10 Needless to say, the Prosecution sees no
11 problem in granting an additional time for the Defence
12 to submit to the Public Prosecutor and to the Court
13 their respective briefs. I just point out that by
14 doing so, the whole operation becomes less relevant.
15 Indeed, if the facts advanced by the accusation had
16 been admitted by the Defence during the Prosecution
17 case, we would have been in a position to change the
18 way in which the witnesses will appear in order to
19 avoid wasting time. Still, in three weeks' time, such
20 briefs may be of interest, but I do regret this
21 additional delay.
22 The second observation. Of course, I apprise
23 myself of all the briefs that were filed so far, and I
24 have the feeling it may be wrong, but I have the
25 feeling that the Defence counsel in the main have
1already their own views and positions as to what they
2 admit in the pre-trial brief and what they reject. I
3 mentioned the brief that was filed on behalf of all the
4 Defence counsel. In that brief, whilst there is a
5 request for additional time, it is also mentioned that
6 the only fact admitted by the Defence, is the fact that
7 Bosnia and Herzegovina had proclaimed its independence
8 on the 3rd of March, 1992, and it was recognised as an
9 independent State.
10 As to all the allegations, whether of fact or
11 of law, included in the Prosecution's pre-trial brief
12 seem to be squarely denied or rejected, so even if this
13 delay is granted, I do not think that it would be very
14 useful for the further trial proceedings.
15 JUDGE CASSESE: Thank you very much,
16 Prosecutor. I had another reading of the brief filed
17 by Mrs. Glumac. If I am not wrong, she states towards
18 the end of her brief that the Defence admits the fact
19 that there was an armed conflict on the 16th of April,
20 1993, so there is another element that is agreed by the
21 Defence. The Defence admits the fact of independence
22 of the Republic of Bosnia and Herzegovina but also
23 admit that there was an armed conflict. This is, of
24 course, one of the main issues raised in this trial.
25 But it admits that there was a conflict, an armed
1conflict, on the 16th of April.
2 MR. TERRIER: Indeed, Your Honour, but I note
3 that the concept of armed conflict is a legal issue, a
4 legal concept, but also a military fact or a fact, and
5 as to the facts, the Prosecution does not believe that
6 on the 16th of April, 1993, there was a conflict
7 between two military units or two military camps. This
8 is not a fact that we agree to.
9 JUDGE CASSESE: May I suggest then we move on
10 to our next issue; namely, the -- all the questions
11 raised by Mrs. Glumac in her motion filed on the 13th
12 of August, and on this particular matter, I would
13 like -- I apologise for mispronouncing your name. On
14 this issue, I suggest that you, Mrs. Glumac, should
15 briefly comment on the main points of your motion, and
16 then we will ask the Prosecution to respond so that we
17 can hear oral arguments on this particular problem
18 which, as I say, is of crucial importance, and after
19 that we will, in our recess, try to make a ruling on
20 this matter.
22 MS. SLOKOVIC-GLUMAC: Your Honours, this
23 motion was submitted for the reason that we feel that
24 the Prosecution did not abide by the provisions of Rule
25 66 of the Rules of Procedure. Namely, according to
1those Rules, the Prosecutor was obliged to submit all
2 the witness statements of the witnesses he intends to
3 call, within a time limit of 60 days prior to the
4 beginning of trial. This has not happened.
5 We admit that the first batch came with a
6 four-day delay, and that was acceptable because it was
7 agreed on, but all the statements that reached us
8 later, and they reached us successfully, they kept
9 coming until the 12th of August when the last two
10 statements reached us, and one of them was a statement
11 of a protected witness. That is all right. But before
12 that, a couple of days earlier, the statements of
13 several additional witnesses arrived.
14 Also, there was a whole batch -- I
15 apologise. There was a batch of witness statements
16 that the Defence received around the 21st of July this
17 year which means that this was already late, it was a
18 month late, actually.
19 May I also add that as far as I am aware, the
20 statements of ten witnesses appearing on the
21 Prosecutor's list have not been disclosed, have not
22 been produced. So that we still do not have the
23 complete documents, and we feel that the Defence's
24 right to prepare their defence has thereby been
25 impaired, because we kept receiving these statements
1one after another. That is why we would appeal to the
2 Court to rule that all those witnesses whose statements
3 reached us after the 60-day time limit, and are not
4 witnesses who enjoy protection granted by the Court,
5 that they should not be called before 60 days has
6 passed from the day when their statements reached us.
7 In this way, our rights would be protected, the Defence
8 would have time to prepare its defence, and I think we
9 would be sanctioning this omission.
10 I know that the material is extensive and
11 that the Prosecution has difficulties, but precisely
12 for those reasons, it has been difficult for the
13 Defence to study those materials and to prepare
15 Rule 67 guarantees the right to a fair trial,
16 and that includes the right to have sufficient time to
17 prepare the Defence case, and we would like to ask, in
18 view of this behaviour by the Prosecutor with regard to
19 the disclosure of documents, that the Court rule along
20 these lines so as to sanction such behaviour.
21 JUDGE CASSESE: Thank you. If I understood
22 you correctly, so you have slightly modified the
23 request you put in your motion because, in your motion,
24 you asked that an order be issued forbidding the
25 Prosecutor to call any witness whose statement has not
1been made available to the Defence for at least 60 days
2 before the witness is scheduled to testify.
3 I understand now you are requesting that
4 witnesses may be called; however, they should not be
5 called right away or next week, or this week or next
6 week, but only 60 days after their statements have been
7 disclosed to the Defence. Am I correct or did I
8 misunderstand your ...
9 MS. SLOKOVIC-GLUMAC: I think you
10 misunderstood, Your Honour. Perhaps it was my problem
11 with my English. I was trying to say that the
12 Prosecutor should not be allowed to call a witness
13 whose statement was not submitted to the Defence 60
14 days ahead of time; that is, that there should be a
15 60-day period between the time the statement is
16 disclosed and the appearance of the witness. So the
17 request is the same, that a 60-day period should pass
18 between the time the statement was disclosed to the
19 Defence and the time the witness appears to testify in
21 JUDGE CASSESE: Thank you. Of course, you
22 are aware that this would entail a delay in the calling
23 of the witnesses because that means that we would have
24 to wait until, say, probably one month or even more,
25 probably six weeks, before those particular witnesses
1are called by the Prosecution. If this is so, as I
2 say, this will slow down the trial proceedings. But
3 this is your position?
4 MS. SLOKOVIC-GLUMAC: Mr. President, we have
5 a problem because we have about 34 statements submitted
6 to us with delays, so this is a large number of
7 witnesses. We have to prepare for them. Then there
8 are another ten witnesses whose statements have not
9 been disclosed, so we have to see whose interest is
10 greater. Because what could occur is for witnesses to
11 appear and testify about something we have no idea, and
12 this is a very important issue. There is the
13 possibility of a life sentence for our clients, and I
14 think that we cannot take a leisurely attitude toward
15 the Defence preparations, and I feel that the problem
16 is that the Prosecution has taken a rather leisurely
17 attitude towards this.
18 JUDGE CASSESE: Thank you. I will now turn
19 to the Prosecution and ask them to clarify their
20 position and to explain why there was such delay in the
21 submission of witness statements and how this squares
22 with the relevant Rules of Procedure; in particular,
23 Rule 66(A)(ii), in its old version, because I feel that
24 Mrs. Glumac is right in saying that we should apply the
25 old version of our Rules because otherwise the new Rule
1would affect the rights of the Defence.
2 Mr. Terrier?
3 MR. TERRIER: Mr. President, at the outset,
4 the Prosecution is of the opinion that it fully
5 complied with its obligation of disclosure of all the
6 exculpatory evidence it had in its possession, in
7 keeping with your rules and Rules of Procedure and
8 Evidence. Of course, we were bound by your decision
9 issued on the 20th of May, 1998, and we are equally
10 bound by Rule 66 of the Rules which, at the time when
11 we had the pre-trial Status Conference, held that there
12 had to be a 60-day time limit between the disclosure
13 and the beginning of the hearing.
14 Another part of the Rules is that copies of
15 other Defence witness statements should be disclosed as
16 soon as a decision to call them to testify is made.
17 This (a) of Rule 66 is tantamount to saying that nobody
18 wanted that the trial procedures should be made rigid
19 before the trial proceedings were completed. The
20 Prosecution, during the time reserved to it for the
21 Prosecution's case, has the obligation of keeping -- of
22 keeping working at finding elements which may be of use
23 to the Tribunal, keep investigating on such matters.
24 There is a first decision on the production
25 of documents of the 16th of June, 1998 -- that was no
1problem because it was a date decided by your Trial
2 Chamber. We made a choice which you may regret as
3 Judges, but I would like to elucidate. We wanted to
4 have a great number of testimonies under Rule 66, but
5 also under Rule 68 of the Rules. It seemed to be of no
6 problem to us to provide more witness statements to the
7 Defence. That maybe was necessary due to the more
8 limited number of witnesses we were going to call, so
9 as to provide the Defence with all necessary
10 information on the trial. And such testimonies,
11 without going into the details of Rule 68 as to the
12 disclosure of exculpatory evidence, such witness
13 testimonies we thought might be of interest for the
14 Defence in preparing their case. Our reading of Rule
15 68, which is very clear, which is absolutely
16 indispensable in the Rules, is sometimes difficult to
17 apply. It's hard to elucidate what an exculpatory
18 piece of evidence is. We don't know what the Defence
19 cases will be. Are they going to say that the accused
20 were present in Ahmici on the 16th of April, 1993, or
21 are they going to invoke another type of defence?
22 So on the date ruled by your Court, we
23 decided to disclose as great a number of statements as
24 possible under Rule 66 and Rule 68, and in doing so, we
25 believe that the Prosecution took due care of the
1interests of the Defence, provided the Defence with
2 relevant and considerable material which made it
3 possible for the Defence to prepare its case.
4 There are other arguments made by the
5 Defence. Some can be accounted for by the ruling of
6 this Court aimed at protective measures for a number of
7 witnesses and others are based on the Rule 66(A)(ii)
8 which I read out a few minutes ago. Admittedly, a
9 certain number of witnesses' names were not accompanied
10 with the witness statements for the simple reason that
11 we did not have the witness statements. If witnesses
12 had provided witness statements we would, of course,
13 disclose them to the Defence. So we believe that we
14 complied with all the obligations we were under, under
15 the Rules, and under the rulings by this Court.
16 As to the motion filed before this Court
17 today aiming at prohibiting the Prosecution from
18 calling any witness whose name would not have been
19 disclosed 60 days earlier, so this would mean that we
20 could not call any new witness and this would be in
21 patent violation of Rule 66(A)(i), and this is the
22 reason why we believe that the Defence's motion should
23 be denied by you.
24 At any rate, if you were to rule against the
25 Prosecution, you would be deprived of relevant
1information in this case, and you know from experience
2 that it is when the time for the opening of the trial
3 is drawing close, that it is then that important
4 information is disclosed to the Prosecution, which then
5 must submit it to your consideration; otherwise, it
6 would be in violation of the fair administration of
7 justice and in violation of the Rules.
8 JUDGE CASSESE: Mr. Prosecutor, on behalf of
9 the Chamber, I wish to put a few questions to you for
11 There is a first problem dealing with
12 figures. In a document recently filed with the Court,
13 you state that you plan to call 71 witnesses. However,
14 it appears from the motion filed by Mrs. Glumac that
15 the witness statements which were gradually disclosed
16 to the Defence amount to 82 or 81 witnesses.
17 The first question we would like to put to
18 you is to the effect of knowing who, among the 81 or 82
19 witnesses mentioned are the ones who are going to be
20 called as Prosecution witnesses? We would like to
21 understand why there is such a disparity in the
23 Another issue we would like to tackle: Did
24 you disclose the witness statements of the 71
25 witnesses? If so, when did you do so?
1If I understood you adequately, you justify
2 the fact that close to half of the witness statements
3 of the witnesses you intend to call were disclosed once
4 the 60-day time limit had come to an end. So legally
5 speaking, what is your reason, your justification for
6 the delay in submitting and disclosing the witness
7 statements? You seem to invoke Rule 66(A)(ii), second
8 part of the sentence, "Copies of the statements of
9 additional Prosecution witnesses shall be made
10 available to the Defence when a decision is made to
11 call those witnesses" and, on the other hand, you also
12 invoke Rule 68. "The Prosecutor shall, as soon as
13 practicable, disclose to the Defence the existence of
14 evidence known to the Prosecutor which, in any way,
15 tends to suggest the innocence or mitigate the guilt of
16 the accused or may affect the credibility of
17 Prosecution evidence." In such a case, there is no
18 time limit, and you argue that anyway, since evidence,
19 exculpatory evidence, has to be disclosed 60 days
20 before the trial begins, you are entitled to disclose
21 the witness statements even after the 60-day time limit
22 has elapsed.
23 So the legal foundation you put forward is
24 based on these two rules, and this is my first question
25 to you. Did I interpret, did I understand you
1properly, and if it is so, you do realise that this
2 would apply to just about half of the witnesses you
3 intend to call, close to half of the witnesses. So
4 there is no balance. Any accepted and agreed reading
5 of the two Rules I have just mentioned are such that
6 witness statements should be disclosed to the Defence
7 within the 60-day time limit, and if there are any
8 additional witnesses which would be few in number, if
9 additional witnesses are discovered by the Prosecutor,
10 the latter is entitled to disclose, even at the last
11 minute, disclose the witness statements only recently
12 discovered. Some kind of balance has to be maintained
13 because this could be used as a technique to butt in at
14 the last minute and to disclose those statements to the
15 Defence only too late, and there the Defence is right,
16 it would not have enough time to prepare its case, and
17 the Defence is entitled to enough time so as to prepare
18 its case in relation to witnesses whose statements have
19 been produced at the very last minute.
20 So I would like to have some explanations
21 from you on these various points I have just mentioned.
22 MR. TERRIER: I shall endeavour to do so.
23 As to the legal references or the legal
24 foundation of our thesis, I have mentioned Rule 68 of
25 the Rules on the disclosure of exculpatory evidence. I
1did so because I wanted to explain why we decided, back
2 in June 1998, to produce a large number of witness
3 statements to the Defence. There were among themselves
4 statements of witnesses that we did then not plan to
5 call to court, but we thought it was interesting for
6 the Defence to know what was in the witness
7 statements. But in order to use Rule 68, maybe we made
8 a wrong choice, but I think it can be accounted for, we
9 decided to disclose a large number of witness
10 statements, and this was done under Rule 66 and Rule 68
11 of our Rules.
12 You mentioned something that appeared to you
13 as some delay in the disclosure of this information
14 according to the rulings and according to the Rules.
15 Let me say this: On the 3rd of August, we produced a
16 list of 71 Prosecution witnesses to the Defence. We
17 thought that these might be the witnesses that we may
18 call to testify before you, and I can say already that
19 out of the list of 71 witnesses we had drafted, we know
20 already that seven will not appear. They decided not
21 to appear for various reasons that I could explain to
22 you, but this is to be inappropriate and out of place
23 for the time being. Out of those, eight had not
24 produced any witness statements, so we had nothing that
25 we could disclose to the Defence. So out of the
1initial 71 witnesses whose names were disclosed to the
2 Tribunal on the 3rd of August, 1998, there are only 56
3 witness statements.
4 On the 16th of June, then on the 30th of
5 June, as well as on the 17th of July, we disclosed a
6 certain number of witness statements. I shall not
7 mention those disclosed on the 16th of June because it
8 doesn't seem to be challenged. As to the disclosure of
9 the 30th of June, we disclosed 16 witness statements of
10 which seven concerned witnesses for whom we had been
11 granted an additional time limit by the Court. We
12 regarded these witnesses as being possible Prosecution
13 witnesses on the strength of the second part of Rule
14 66(A)(ii). For this same reason, we disclosed another
15 13 witness statements on the 17th of July. Last but
16 not least, in the very first days of August, we
17 produced and disclosed one last witness statement. So
18 it's all a matter of appreciation as to the scope that
19 can be given to that second part of Rule 66(A)(ii), and
20 like other legal systems I am familiar with, with their
21 own positive and negative sides, I want to mention that
22 we did not want to have anything that would be fixed
23 whilst the trial had not yet begun. We had to be able
24 to find other new evidence until the trial would open
25 so as to inform this Tribunal as comprehensively as
1possible as to the facts of this case. It would be
2 regrettable if 60 days before the trial began, all the
3 evidence, all the elements of a case file, were fixed
4 once and for all. This would be regrettable for the
5 Tribunal altogether.
6 On the basis of the figures I have provided,
7 I can say that the Prosecution has not made an
8 excessive use of Rule 66(A)(ii). I believe that we
9 used this Rule in a reasonable way and in a fair way
10 towards the Defence. Should, of course, this Court
11 rule otherwise, I shall comply with the ruling, but I
12 think that I don't have any other things to say right
14 JUDGE CASSESE: Of course, we agree with you
15 as to the need not to predetermine too early in the
16 piece how many witnesses will be called, but we need to
17 find some kind of pragmatic solution. Hence, these two
18 following questions. If my figures are right, 37
19 witness statements were disclosed to the Defence whilst
20 the 60-day time limit had elapsed already.
21 Thirty-seven minus eight, because these were the
22 statements of protected witnesses, and, as you said,
23 you were authorised to disclose those witness
24 statements with some delay. Remain 29 witness
1First question: Out of the 29 witnesses, how
2 many of them are Defence witnesses governed by Rule 68
3 of the Rules? How much of it is exculpatory evidence?
4 Second question: Out of the 29 witnesses,
5 how many do we have who are among the 56 witnesses
6 which you intend to call and whose statements you
7 have? I am mentioning 56 because I am taking 71 minus
8 seven, minus eight. So out of the 71 witnesses, we
9 have to take seven and then eight out, remain 56. So
10 we have the figure of 56 and now we have 29 witness
11 statements. We would like to have the proper ratio to
12 put us in a position to rule adequately. So what did
13 you do? Did you use, if not abuse this liberty, did
14 you have a sort of extensive interpretation of this
15 last part of Rule 68(A)(ii)?
16 MR. TERRIER: I understand your concerns,
17 Your Honour. Let me explain the matter of these
19 As far as the 29 witness statements are
20 concerned, you are right, Your Honour, they were
21 disclosed after the time limit had elapsed and outside
22 of the Court rulings. I note that eight of the
23 witnesses have not produced witness statements. We are
24 not in a position to disclose those witness statements
25 to the Defence. So we should take these eight
1witnesses with no witness statements out of the 29.
2 You wished to know, Mr. President, which of
3 the 37 witness statements disclosed in June, on the
4 16th of June, 1998, which, among those witness
5 statements, had been disclosed with some delay and how
6 many of them could be justified by Rule 68. I say that
7 among those witness statements disclosed out of the
8 time limit, none of them is based on Rule 68. All the
9 disclosure to be carried out under Rule 68 has been
10 done, and we did not find any other element that could
11 be regarded as exculpatory evidence. If we had, of
12 course, we would have disclosed in keeping with the
14 I am not right now in a position of informing
15 you any further. If you wanted any more refined
16 calculations, maybe we could have some time in order to
17 do so, but presently, this is all I can say.
18 JUDGE CASSESE: Last question: What is your
19 position in respect of the Defence motion as argued
20 orally this morning? It may be that I had failed to
21 understand the written motion, so this is to the effect
22 of having the testimonies of witnesses postponed if
23 their witness statements fail to be disclosed within
24 the time limit of 60 days. But if I understood the
25 Defence right, the Defence said that it is not asking
1to preclude such testimonies even if the witness
2 statements were disclosed with delay. They only want
3 to have a 60-day time limit which they can enjoy, which
4 would mean that the witnesses could be called only in
5 three to four weeks' time.
6 What is your position as to the motion argued
7 by Mrs. Glumac?
8 MR. TERRIER: I had some trouble and
9 difficulty in understanding the accurate meaning of the
10 Defence motion. If the Defence motion ends at
11 requesting that the calling of testimony with
12 examination-in-chief and cross-examination by the
13 Defence would be postponed for more than 60 days
14 following the disclosure of the witness statements,
15 this is contrary to justice, in my submission, and also
16 in violation of the Rules.
17 However, if the Defence should wish to have
18 the opportunity to receive the opportunity from the
19 Chamber to proceed to the cross-examination of a
20 witness at a later date, the witness could come and be
21 heard and be examined in chief, and as long as there
22 were good reasons to do so, the Defence could proceed
23 to the cross-examination only later on, maybe when it
24 comes to the Defence case, and I think that this could
25 be perfectly all right for us and the fears of the
1Defence might be allayed.
2 JUDGE CASSESE: I think that Judge May wanted
3 to ask a question.
4 JUDGE MAY: Mr. Terrier, yes, the essence of
5 the problem is that the Defence should have proper time
6 to prepare. Trial by ambush is unacceptable, but at
7 the moment, I haven't -- it may be that I have
8 overlooked it -- a list of when statements were
9 disclosed. Now, it may be that the problem can be
10 overcome if sufficient time has been given for the
11 Defence to prepare the particular witnesses, prepare
12 their cross-examination. Obviously, they must have
13 time to do that. But what I don't think we have is a
14 list of the witnesses with a list of when the
15 statements were disclosed.
16 Could I refer you, please, to the order of
17 witnesses and estimated length of examination-in-chief
18 which you produced on the 3rd of August? Registry page
19 2053. Where we have your list of witnesses, I take it
20 from the way its described, in the order in which you
21 propose to call them, starting with Mr. Watters.
22 Now, I think what would be helpful to me so
23 that I can try and judge that is to know which of those
24 witnesses you now propose not to call so that we do not
25 have to be troubled with that, but also to know when
1these statements of these witnesses were disclosed.
2 For instance, those witnesses who you propose to call
3 in the next day or two during the course of the next
4 week, were they disclosed within the normal Rules or
5 have they recently been disclosed, in which case it may
6 be right not to call them at that stage?
7 Can you assist us to that?
8 MR. TERRIER: Your Honours, of course we
9 shall submit to you a more precise account out of the
10 list of 71 witnesses filed on the 3rd of August. We
11 are going to provide you with the exact dates when the
12 witness statements were disclosed to the Defence. But
13 I do insist those of the witnesses who never produced
14 any witness statements do not fall under the obligation
15 of disclosure because there is nothing to disclose, and
16 we know -- for some of them we know that they will not
17 be called. Eight witnesses did not make any witness
18 statements, seven will not come. Well, this is what we
19 know today.
20 As far as this week is concerned, I can tell
21 you, and this will be checked very closely, but I don't
22 think this will be challenged by the Defence, I do
23 believe that all the witness statements were indeed
24 disclosed to the Defence counsel; therefore, there
25 should not be any problem for this week.
1But let me add that even for the witnesses to
2 be called this week, we are not yet absolutely sure of
3 the order of witnesses. We don't know whether the
4 order that was scheduled on the 3rd of August can be
5 totally adhered to. There are specific constraints
6 under which we operate. We are talking about events
7 that took place 1500 kilometres away from here five
8 years ago, some people moved out, left the country;
9 others are under family or professional obligations,
10 they have commitments, and we have to make sure that we
11 do take their wishes into account. So please do not
12 believe that this is a sign of inconsistency or
13 of flippancy on the part of the Prosecution, but it may
14 well be that at times the order in which the witnesses
15 may be called will not be the order that had been
16 initially scheduled. It may well be that some of the
17 witnesses mentioned in the list of whom we think will
18 be willing to come might, in the end, decide not to
19 testify before the Tribunal.
20 JUDGE MAY: Mr. Terrier, will you produce for
21 us, please, a schedule setting out when it was that the
22 witness statements were disclosed, and it might be
23 helpful if that was done in the order of the witnesses
24 which you set out on the 3rd of August.
25 There is one further matter I want to raise,
1if I may, and it's this: That you made the point,
2 Mr. Terrier, that it was not clear from the Defence as
3 to whether it was admitted that the accused were in
4 Ahmici on the 16th of April. In fact, in the case of
5 one accused, it is admitted, although it said he was in
6 the shelter, and if I have read that right, that's in
7 the case of Vlatko Kupreskic, but I think I'm right in
8 saying that no other accused has addressed this
9 important point.
10 Now, if it is to be suggested that an accused
11 was not in Ahmici that day, then clearly that would
12 constitute an alibi, and that would require, or
13 requires under the Rules, disclosure before the trial,
14 and perhaps I am addressing the Defence through you.
15 Were it suggested that any accused was not in Ahmici
16 that day, that should be promptly disclosed, but one
17 must take it from the absence of disclosure that, in
18 fact, that is not the case. But it would be helpful to
19 know what the defence is on that particular point. One
20 accused has made his position clear, and it seems to me
21 the others should do so too.
22 MR. TERRIER: In respect of the two questions
23 raised by Judge May, I say that shortly within the
24 recess granted, we shall communicate to you the dates
25 of disclosure for those witnesses.
1When it comes to the defence of alibi as
2 invoked by Mr. Kupreskic, and Rule 67 indeed, there is
3 a need to communicate the intention of having witnesses
4 appear on this defence of alibi, and we did not receive
5 any other notification from any other Defence counsel
6 for other accused. We conclude, therefore, that they
7 themselves could testify on a special defence. This is
8 the third sub-rule of Rule 67. But other witnesses
9 could not be called on their behalf. But I believe
10 that I noted in the statements disclosed this morning
11 or a few days ago, I noted that several of the accused
12 did not challenge or deny that they were present in
13 Ahmici on the 16th of April. They do challenge the
14 arguments raised by the Prosecution, but they do not
15 challenge the fact that they were present in Ahmici.
16 But I do believe that the Defence could more adequately
17 than I do express their views on that.
18 JUDGE CASSESE: I wonder whether we can,
19 before moving on to other items and before we take a
20 break, we should break at around 11.00, whether I could
21 turn to Mrs. Glumac and ask whether she would like to
22 comment on the response given by the Prosecution to
23 this particular item. Let us leave aside now the
24 defence, the alibi question, because on that particular
25 point, I should turn to Mr. Krajina.
2 MS. SLOKOVIC-GLUMAC: We have responded in
3 our brief saying that at the critical time our clients
4 were indeed in Ahmici.
5 As for the comments of the Prosecution, I
6 think that he is not quite clear on the dates when the
7 statements were disclosed. I have checked the dates
8 and put them down and I can supply those dates to the
9 Court. The Prosecutor has not disputed those dates.
10 It seems to us that the Prosecutor says that he doesn't
11 have statements for eight witnesses but, according to
12 our count, it's ten, so it seems to me that it is quite
13 the same to them whether it is eight or ten. I think
14 that we must take care that the evidence is presented
15 to the Defence correctly. It is not proper to act in
16 this way. All these are witnesses on the Prosecutor's
18 If I understood him well, he said that at
19 first the statements of witnesses were given that they
20 do not intend to call so as to give us an overall
21 picture of the situation and that they did not submit
22 statements of the witnesses they do intend to call.
23 But that is obstruction of the Defence. So how can we
24 prepare our defence in this way? That is what I heard
25 at least being said by the Prosecutor, and I do feel
1that that is a violation of our rights.
2 I agree that we should not freeze the process
3 of presentation of evidence, but the question is, what
4 has been happening in the meantime? There were no new
5 investigations. These statements are all several years
6 old. They are not the product of any current
7 investigation. Therefore, I feel that the explanations
8 given by the Prosecutor are not acceptable.
9 In addition to my motion, I had intended to
10 attach these dates so that the Trial Chamber should
11 have an idea of the way in which the Prosecution
12 behaved. I am not trying to say that anyone is
13 intentionally wasting time. We do indeed want an
14 expeditious trial but also a fair one, because that is
15 our right. Thank you.
16 JUDGE CASSESE: Thank you. Let me just
17 clarify one point -- yes, please, Mr. Radovic.
18 MR. RADOVIC: In connection with the question
19 of special defence and the defence of alibi, we know
20 that we are obliged to disclose such a defence
21 promptly, but in this case, that point will not be
22 disputed, whether our clients were in Ahmici as an
23 area. But what is disputed is whether they were in a
24 spot where they shouldn't have been or somewhere else,
25 and that is my reply to the question put by Your
2 JUDGE CASSESE: Yes. Let us leave aside for
3 one second the question of alibi because we have to now
5 It is clear that now the Prosecutor will
6 provide the Defence and the Court a list of 71 names
7 and he will specify there when the relevant statements
8 have been produced. The eight or ten names of the
9 witnesses for whom no statements have been produced,
10 and also the list of those witnesses, out of those 71
11 witnesses who have dropped out already, so that we can
12 make up our minds and decide on this matter.
13 Let me just clarify one point, probably due
14 to a misunderstanding because of interpretation
15 problems. Mrs. Glumac said that the Prosecution does
16 not intend to provide to the Defence some statements of
17 witnesses. Actually, the Prosecutor said that for
18 eight witnesses they do not have statements. They're
19 not withholding those statements, they simply don't
20 have those statements available, so that's why -- but
21 also for those witnesses, we would like to have a
22 proper indication of their names so that when we resume
23 at 11.30 or 11.35, probably the Prosecutor will be in a
24 position to pass on to us and give to the Defence this
25 particular list.
1I think we should now adjourn and discuss the
2 issue of alibi later on because I see that some Defence
3 counsel are keen to address this particular point.
4 Let me say that I hope that by half past
5 12.00, when we have to adjourn, I hope that we will be
6 in a position to go through various procedural matters,
7 and this afternoon at two o'clock when we reconvene, we
8 should be able to quickly deal with the housekeeping
9 matters and then start with the opening statement of
10 the Prosecutor so that we proceed in a quick way.
11 I now suggest that we adjourn for 30
12 minutes. So we will rise now. We will come back at
13 11.32 sharp.
14 --- Recess taken at 11.03 a.m.
15 --- On resuming at 11.40 a.m.
16 JUDGE CASSESE: I must apologise for the
17 delay, but I understand the Prosecutor needed some
18 time. I wonder whether the Prosecutor is now in a
19 position to give us these documents; otherwise, we can
20 move on to other matters.
21 MR. TERRIER: Mr. President, yes, we are in a
22 position to provide you with the document, but there
23 are other matters that maybe we should look into which
24 could give me enough time to check the various pieces
25 of information and draw up a summary. Thank you very
2 JUDGE CASSESE: All right. Thank you. Then
3 may I suggest that we move on to our next item, namely,
4 the issues which were raised -- some of the issues,
5 legal issues, which were raised in the motion filed by
6 the counsel for Vlatko Kupreskic. This motion for the
7 withdrawal of the indictment. There are some
8 particular matters which I think have been caused
9 mainly by a misunderstanding.
10 May I draw the attention of Defence counsel
11 to page 5, paragraphs 19 through 22, of their motion,
12 and I would like to ask Defence counsel to clarify
13 their position on this particular matter because, as I
14 say, I have the feeling that all the issues raised by
15 Mr. Krajina are probably due to some misunderstanding
16 concerning the position of the Prosecution.
17 May I ask Mr. Krajina to come back and dwell
18 upon those paragraphs, 19 through -- well, say, 24?
19 MR. KRAJINA: With your leave, Your Honour,
20 may my colleague Par explain this?
21 JUDGE CASSESE: I'm sorry, but we have a
22 problem with Mr. Par because -- this is a question
23 which I intended to raise later on -- within the
24 framework of what I have called the housekeeping
25 matters; namely, the right of audience of Mr. Par.
1Now, Mr. Par is a legal assistant and, as
2 such, he has no right of audience. He can sit here in
3 the courtroom, but he has no right of audience. Since,
4 therefore, this problem has cropped up now, I will deal
5 with it right away because I understand that
6 Mr. Krajina had requested that the position of Mr. Par
7 be upgraded to that of a co-counsel. A co-counsel is
8 entitled to address the Court, in addition of course,
9 to sitting in court.
10 Now, on this matter, the Trial Chamber has
11 already come to a decision based on the following
12 elements: First of all, a ruling was made by Trial
13 Chamber II both in Tadic and in Kupreskic to the effect
14 that whenever the lead counsel does not have any
15 command of one of the two working languages of our
16 Tribunal, French or English, he may suggest that a
17 co-counsel be appointed, of course on condition that
18 the co-counsel has full command and is fluent in one of
19 the two working languages. We have to stick to this
20 ruling, and for this purpose, the Trial Chamber has
21 requested the Registry, which has the final say on this
22 matter, as you know, to let us know what their position
24 The position of the Registry is that,
25 according to the Registrar and the Deputy Registrar,
1Mr. Par does not meet the linguistic requirements which
2 are laid down I think, if I am correct, in Rule 14 of
3 the relevant document. I have got this document
4 somewhere, but I will dig it out in a few minutes,
5 because there it is stated that the counsel must -- the
6 lead counsel must be fluent in one of the two
8 So this is the position of the Registry, and
9 the Registry, however, has suggested that this position
10 should be, in a way, scrutinised by the Trial Chamber,
11 which will eventually decide upon this matter. This is
12 our second element, the second element we have decided
13 to take into account.
14 The third element is the judicial practice of
15 the other Trial Chambers. They have consistently
16 decided that either the leading counsel or the
17 co-counsel must meet the requirements laid down in that
18 particular provision, Article 14, and therefore, if the
19 Registrar or the Deputy Registrar feel that those
20 requirements are not fulfilled, the suggested
21 co-counsel may not take up the task of co-counsel but
22 may be given the position of legal assistant.
23 Therefore, I suggest -- legal assistant, yes.
24 We have decided that Mr. Par should be given
25 the position of legal assistant, and therefore,
1Mr. Krajina is entitled to address the Court on any
2 question relating to their accused.
3 This being so, I wonder whether Mr. Krajina
4 is in a position to address the item we were
5 discussing; namely, the paragraphs I had mentioned of
6 their motion. I am referring, of course, to the motion
7 filed on the 27th of July suggesting that the
8 indictment against Vlatko Kupreskic should be withdrawn
9 and suggesting also that a separate hearing should be
11 As you know, Judge Mumba had already issued
12 an order on this particular motion; however, in that
13 order, as I reminded you this morning, in that order,
14 Judge Mumba, acting on behalf of the Trial Chamber,
15 decided that any problems, procedural problems, which
16 were outstanding should be addressed in court this
18 So I wonder whether again -- I turn to
19 Mr. Krajina. I would like to ask him whether he would
20 be prepared to do so or whether he would like to deal
21 with this matter this afternoon?
22 MR. KRAJINA: Your Honour, since my colleague
23 Par prepared to present the argument, may I be allowed
24 to respond to your questions this afternoon? I don't
25 know whether I understood well, Mr. President, whether
1this applies to your decision regarding our subsequent
2 request for the appointment of Mr. Par as co-counsel
3 because certain circumstances have changed regarding
4 his command of an official language, and subsequently
5 we addressed the Registry in writing and received a
6 positive response from the Registry but, of course, the
7 final decision was left with the Trial Chamber.
8 Therefore, I didn't understand quite well
9 whether the Trial Chamber is familiar with this most
10 recent opinion of the Registry regarding this matter.
11 JUDGE CASSESE: No, we received from the
12 Registrar a letter, which I have here in front of me,
13 where he stated that actually, according to the
14 Registrar, those requirements are not met; however,
15 that, of course, the Trial Chamber would have final say
16 on this matter.
17 We decided to stick to the judicial practice
18 of other Trial Chambers as well as to the ruling made
19 by our Chamber in Tadic and Kupreskic; and therefore,
20 to assign Mr. Par the role and the status of a legal
21 assistant. This applies also to any future question
22 and to your motion.
23 Of course, I am ready to comply with your
24 request that you should address this issue this
25 afternoon so as to have enough time to prepare on this
2 Now, let us -- if, meanwhile, the Prosecutor
3 has -- are you in a position to come back to that
4 particular point, or shall we move on to -- well, I
5 could ask the Prosecutor a question about the two
6 ex parte motions filed recently, and we feel that it is
7 probably not necessary that the Prosecutor should
8 present oral argument on those motions because they are
9 quite clear and we may make a ruling on them without
10 hearing oral argument. However, if the Prosecutor is
11 willing and prepared and wishes to present oral
12 argument, of course, we would hold ex parte
14 What is your position?
15 MR. TERRIER: Mr. President, it is up to
16 you. I do believe that the motions are clear in
17 themselves. Should the Court wish to receive
18 additional explanations, we are willing to provide the
19 Court with them, but I think we are in the hands of the
21 JUDGE CASSESE: All right. So we will decide
22 on this matter, if possible, at lunch time, and we may
23 now move on to two issues raised this morning in
24 addition to the various items that I had set out in my
25 introduction. One issue is that of protective measures
1was raised by the Prosecutor, and the other problems
2 were raised by Defence counsel: One, the restoration
3 of documents and property of Vlatko Kupreskic and the
4 second item was the specialist medical examination,
5 again of Mr. Vlatko Kupreskic.
6 Could we start with the protective measures?
7 I wonder whether the Prosecutor could briefly deal with
8 this item so that we may then afterwards, if need be,
9 hear the Defence counsel and move on?
10 MR. TERRIER: Yes, Your Honour. We wish to
11 address the way this Chamber wishes the parties to
12 proceed in respect of protective measures which will be
13 asked for regarding a number of witnesses.
14 We know already that some witnesses, who all
15 reside in Bosnia, will ask for protective measures, and
16 based on that request, will put forward arguments that
17 appear to be extremely well-founded. For instance,
18 some witnesses have professional or social dealings
19 with members from the other community and wish that
20 their contribution to the ICTY remains as low profile
21 as possible. The Tribunal is well-aware of the
22 situation prevailing in Bosnia, still prevailing in
23 Bosnia and Central Bosnia. It is a very unstable,
24 precarious situation. There are acute tensions still
25 between the communities.
1Therefore, our requests for protective
2 measures are required by factual circumstances. We
3 need to ensure the protection of the witnesses as ruled
4 by the Statute but also by several Rules of Procedure
5 and Evidence.
6 So a pragmatic suggestion, in order to waste
7 as little time as possible and to work to the
8 satisfaction of all parties, is as such: When and if
9 the Defence agrees to the requested protective
10 measures, alteration of the voice, distorting the
11 images, if such measures are agreed to by the Defence,
12 the Chamber would not have to make any ruling on such
14 It may be different if, as provided by the
15 Rules, the Chamber has to give reasoned motives for the
16 protective measures. This should happen in closed
17 session. This will happen only very rarely. I don't
18 know as yet whether we shall ask hearings to be held in
19 closed sessions, in-camera. It may well be the case,
20 but I am not in a position to say when the Prosecution
21 may have to ask for closed sessions.
22 As to the witnesses due to appear this week,
23 we ask for minimum protective measures, the voice
24 should be distorted, so should the images, and we may
25 ask some other minor protective measures.
1The only request I wish to formulate is that
2 the Court should tell us which time limits to apply for
3 the request of such protective measures, whether they
4 are accepted or not accepted by the Defence.
5 JUDGE CASSESE: I wonder whether the Defence
6 counsel has anything to say on this particular matter.
7 Our conclusion would be -- I have quickly
8 consulted with my two fellow Judges -- and we feel
9 that, to respond to the request of the Prosecutor, of
10 course our philosophy is that all the protective
11 measures requested by other parties should be accepted
12 to the extent that they do not limit the rights of the
13 Defence, which are sacrosanct. First point. So,
14 therefore, we intend to be quite generous in complying
15 with requests designed to protect witnesses.
16 The second point is that, of course, we can't
17 make a decision, a blanket decision, but any decision
18 must be made on a case-by-case basis, it goes without
20 Third point, from the viewpoint of
21 practicality, I would suggest that if the parties are
22 agreeable, that probably a day before a witness is
23 called the party calling the witness should propose to
24 the Trial Chamber the sort of protective measures to be
25 taken. We will ask the other party whether they are
1agreeable, and then we will grant, if need be, the
2 requested protective measure.
3 Is it feasible, if you say a day before a
4 witness is called, you suggest to the Court that you
5 would like the particular witness to enjoy particular
6 protective measures, we could make up our mind right
7 away after consulting with the other party.
8 What is your position on this?
9 MR. TERRIER: Quite, Mr. President. I see
10 absolutely no difficulty in doing so. The Chamber may
11 wish one of the Defence counsel to be appointed as our
12 counterpart in such questions and we could, before
13 addressing the Court, turn to the representative of the
14 Defence counsel to see whether they agree with the
15 requested protective measures so as to duly inform the
16 Court. But I think it might be good to have one such
17 member of the Defence counsel to be appointed for the
19 JUDGE CASSESE: I think that is quite
20 sensible, what you have suggested. Actually, we had
21 already -- remember, we had thought of coordinating
22 counsel, and this morning I reminded you that we are
23 very keen to know whether a coordinating counsel has
24 been appointed by the various counsel. We raised this
25 issue some time ago. I remember that Defence -- one or
1two Defence counsel said they were not able to appoint
2 just one coordinating counsel but they preferred to
3 have two counsel, one speaking on behalf of a
4 particular group, I think you mentioned, the Zagreb
5 group, is it? Am I correct? And the other one, I
6 don't remember which sort of group, linked to an area
7 or to a city. I wonder, since we are dealing with this
8 matter, it is a matter which I intended to raise this
9 afternoon within the framework of the so-called
10 "housekeeping matters," I wonder if you could tell me
11 whether or not you have agreed upon a particular
12 Defence counsel to act on behalf of all of them, to
13 discuss all these procedural matters, in particular, to
14 act in contact with the Prosecutor so that we can speed
15 up practical matters and deal with them as quickly as
17 May I ask one of you to respond? I thought
18 Mr. Radovic. I don't remember. I think Mr. Radovic,
19 were you -- can I ask one of you just to remind us of
20 what you had decided or whether or not you have changed
21 your mind?
22 MR. RADOVIC: Unfortunately, we have decided
23 nothing regarding this matter. If it is necessary to
24 appoint a coordinator, then I would ask for a short
25 recess for us to make a kind of brief elections to see
1who we could appoint?
2 MR. SUSAK: Mr. President, I feel that Petar
3 Pavkovic has already been appointed coordinator. This
4 is something that has gone down in the record, and I
5 think that colleague Radovic was the author of that
6 proposal or, rather, of that appointment.
7 JUDGE CASSESE: Yes, I think your
8 recollection seems to be correct, and Judge May ...
9 15th of May. I think since there may be
10 hesitations, of course, you are fully entitled to have
11 some time to discuss again this matter and come back to
12 us maybe this afternoon. Is it fine with you if, say,
13 you let us know this afternoon at 2.00 when we
14 reconvene so you have plenty of time at lunch time. We
15 tend, I'm afraid, to work at lunch time, both parties
16 and the Judges. I'm afraid it's a bit taxing.
17 All right. So much for the protective
18 measures. We could probably quickly move on to the
19 question raised by counsel for Vlatko Kupreskic about
20 the restoration of documents and property belonging to
21 Vlatko Kupreskic and since the issue was quickly raised
22 this morning, I think by Mr. Krajina, I wonder whether
23 the Prosecutor is in a position to state their stand on
24 this particular point.
25 Mr. Moskowitz?
1MR. MOSKOWITZ: Thank you, Mr. President. We
2 filed, I think it was on May 20th, pursuant to this
3 Court's order, a detailed accounting of the briefcase,
4 and we have looked high and low for documents as
5 described by Mr. Kupreskic as being in that briefcase.
6 To the best of our ability, we have not found
7 those documents. There was an extensive inventory
8 done, there was a re-check done, there was an attempt
9 to actually have Mr. Kupreskic look through the
10 briefcase himself, but the briefcase had been sent back
11 to Bosnia by the time that could take place. So it is
12 our view and our position that those documents were not
13 in the briefcase when we obtained them from SFOR back
14 in 1997.
15 JUDGE CASSESE: Thank you. Could you, since
16 you are now addressing the Court, also deal with the
17 question of the specialist medical examination, the
18 other issue raised this morning by Mr. Krajina?
19 MR. MOSKOWITZ: May I have a moment to
21 It is our position that we do not object to
22 that kind of examination, Your Honour.
23 JUDGE CASSESE: Thank you. Mr. Krajina, may
24 I ask you to comment?
25 MR. KRAJINA: Mr. President, first of all,
1may I thank you for putting on the agenda these two
2 issues which we consider to be very important for the
3 Defence of the accused Mr. Kupreskic.
4 As for the restoration of documents contained
5 in the briefcase when the accused Kupreskic was
6 arrested, may I very briefly provide some explanations
7 in connection with this problem?
8 We had several contacts with the Office of
9 the Prosecutor, and, as you know, this was discussed at
10 the Status Conference held on the 15th of May this
11 year, and there is a ruling of the Trial Chamber
12 explicitly instructing that all objects seized from the
13 accused have to be restored to the accused.
14 The Prosecutor's Office has denied the
15 existence of 14 documents, as my learned friend claims
16 now as well, that they were not in the briefcase at the
17 time that it was seized from the accused.
18 In our submission of the 2nd of June this
19 year, which we addressed to the Trial Chamber, we
20 continue to allege that the objects, that the contested
21 objects were indeed in the briefcase. They were
22 prepared and put in the briefcase by our client because
23 he intended to use them for his defence in the
24 Tribunal. He kept for himself copies of all those
25 documents, and they are still in his possession.
1Why do we keep pressing this issue? Because
2 we wish to avoid the unnecessary effort that tracing
3 those documents would entail and because we fear that
4 in the course of that process, if we were to present
5 copies of those documents in court, they may be
6 challenged, and that is why we keep insisting that
7 those originals need to be found and restored to the
9 The instructions given by the Trial Chamber
10 to the Prosecutor to find and restore those documents
11 says that the Prosecutor was also obliged to prepare an
12 inventory of all the objects found in the briefcase and
13 how, upon his arrest. I must repeat that the report
14 submitted by the Prosecutor on the 20th of May, '98,
15 does not contain such an inventory, such a list, with
16 data on documents found in the briefcase, and because
17 no such list has been submitted, the instructions of
18 the Trial Chamber have not been followed, and all we
19 hear now from the Prosecution is simply that those
20 documents were not to be found in the briefcase.
21 Our submission was that this problem could be
22 tackled in two ways: either by making an inventory
23 list, which probably exists, or by interviewing the
24 persons who had any contact with the briefcase before
25 it reached the Prosecution and the Tribunal. In that
1way, we could establish the chain of custody or, the
2 alternative would be for the Defence to be allowed to
3 use copies of those documents in the course of the
4 presentation of its case in court on the condition that
5 they should not be challenged. We are referring to
6 copies only of those documents that were contained in
7 the briefcase.
8 That is why, in view of the fact that we
9 still haven't received a final answer regarding our
10 motion, we appeal to the Trial Chamber to make a ruling
11 on this matter.
12 A second point that we would like to raise
13 has to do with our request for specialist examinations
14 of our client. Vlatko Kupreskic, according to
15 available medical documentation, is disabled 100 per
16 cent because of a congenital heart condition and
17 because of surgery that he underwent on his heart.
18 That is why, for seven months now, the time that he has
19 been in detention, we have been asking that the
20 appropriate experts, cardiologists, should examine our
21 client and file their reports on their findings because
22 by staying in detention -- and we know what that means
23 for people with a heart condition -- he is frequently
24 in a stressful condition; and in our request, we asked
25 permission for a specialist to examine our client, and
1we proposed the names of university professors,
2 specialists. However, the Registrar did not accept
3 this but notified us that Mr. Kupreskic would be
4 examined by a Dr. Deichman of the Netherlands, a
5 cardiologist; however, to date no such examination has
6 taken place, nor have we been notified in any way why
7 this has not been done.
8 We must also point out in this Trial Chamber
9 that we are concerned for the condition of our client
10 and, as his Defence counsel and as human beings, we
11 would not like to accept any responsibility should
12 anything happen to him while in detention.
13 In connection with this health problem of our
14 client, we have also submitted a request to the
15 management of the detention unit to allow the accused
16 Vlatko time in the fresh air that is double the amount
17 that people in good health are given. We have not
18 received official permission for this either, though I
19 must say that the unit management has informally
20 accepted this request of ours.
21 Also, we have requested that during the
22 breaks in the trial, the accused should be allowed to
23 go outside the booths envisaged for the accused which
24 obviously lack fresh air so that he be allowed to spend
25 the time during the break in another room with fresh
1air. This request has not been responded to either to
2 date, and we appeal to the Trial Chamber to make an
3 appropriate ruling on this matter too.
4 Thank you.
5 JUDGE CASSESE: Thank you.
6 All right. Let me start with the question of
7 restoration of documents and property to Mr. Vlatko
9 Actually, I understand 14 documents are
10 missing and, of course, they can't be found, and we
11 don't doubt the good faith of those who seized those
12 documents. Probably they got lost. Therefore, we feel
13 that the Defence counsel is entitled to use copies of
14 those 14 documents and the Prosecutor will not, of
15 course, be allowed to challenge the authenticity of
16 those copies. It goes without saying that we will take
17 into account the fact that we will be using copies.
18 As for the specialist medical examination,
19 the Trial Chamber fully shares the concern of Defence
20 counsel, and we will direct the Registrar to ensure
21 that Mr. Vlatko Kupreskic be visited by one or two
22 cardiologists as soon as possible. Actually, I hope in
23 the next few days. I fully share your views that it is
24 crucial for the accused to be duly examined by one or
25 more specialists. This is a matter which, of course,
1comes within the purview of the Registrar, but we will
2 today ask the Registrar to put in hand all the
3 necessary measures.
4 As for the question of fresh air, again, we
5 also share your concern. We feel this is quite an
6 appropriate request, but again, this is a matter which
7 must be decided upon by the Registrar. We will ask the
8 Registrar to see to it that the accused, if possible,
9 enjoy some fresh air in the appropriate times instead
10 of being locked in some closed rooms.
11 I think we have disposed of this matter.
12 Since we still have some time, I wonder whether the
13 Prosecutor is now in a position to let us know about
14 the list of witnesses.
15 MR. TERRIER: Yes, thank you, Mr. President.
16 I am referring to this list of 71 witness names which
17 was filed with the Tribunal in the beginning of August
18 in keeping with the wish you expressed during the
19 Status Conference.
20 I note that ten and not eight, as I
21 mistakenly mentioned earlier on, that ten witnesses
22 have not produced any written statement, which means
23 that we cannot disclose any of those statements under
24 Rule 66. So this was a very accurate observation by
25 the Defence. We are dealing with ten and not eight
1witnesses, having not produced any statement.
2 Following the 16th of June, the witness
3 statements of 38 witnesses were disclosed to the
4 Defence. On the 30th of June, 14 witness statements
5 were disclosed, among which there were statements of
6 seven witnesses for which postponement of the
7 disclosure had been granted by the Tribunal.
8 Following the 17th of July, the statements of
9 five witnesses were disclosed to the Defence, and on
10 the 5th of August, three witnesses were notified to the
11 Defence. I add that in compliance with the Court
12 orders, one witness statement was disclosed on the 10th
13 of August. This was one of the last witnesses for whom
14 protective measures had been granted by this Court.
15 So if you quickly sum up all this, you find
16 out that out of the 71 witnesses mentioned in the list,
17 minus the seven who will not testify and possibly
18 additional witnesses not willing to testify, we have 15
19 names for which disclosure will be provided once the --
20 although the time limit has elapsed, this is based on
21 66(A)(ii) because it appeared that they were necessary
22 witnesses for the Prosecution, although the time limit
23 had elapsed.
24 This process of disclosure is sometimes
25 inevitably confused. Some disclosure took place within
1the time limits, and for some of the witnesses
2 disclosed within the 60-day time limit on the 16th of
3 June, we may have additional statements, but they were
4 already disclosed to the Defence. Most of the time we
5 were dealing with witness statements that we had but
6 had only in Serbo-Croatian. Translation had to be
7 carried out which necessitated further time limits. As
8 a result, with regard to some witness statements, they
9 were disclosed past the 16th of June, past the 60-day
10 time limit. I think this will not be challenged by the
12 As to the additional witness statements
13 disclosed, we are only dealing with statements that we
14 wanted to disclose but there was no additional input
15 compared with the previous witness statements. It was
16 for the sake of thoroughness and comprehensiveness that
17 we wanted to disclose them. But they were names that
18 we didn't have in our files.
19 So these are all the data relating to
20 disclosure. Once again I repeat that we have the
21 feeling that we did not exceed our rights under the
22 Rules, we complied to the letter and the spirit of the
23 Rules, we equally complied with the Court orders, the
24 15 witnesses that were belatedly disclosed or were
25 disclosed past the 60-day time limit had elapsed, were
1disclosed belatedly because of the investigating effort
2 that we were still carrying out, although the 60 days
3 had elapsed. We had the feeling that the Office of the
4 Prosecutor and its representatives fully complied with
5 the spirit and the letter of the Tribunal and the Court
7 JUDGE CASSESE: Two things: Could we have
8 the list that is in the document filed on the 3rd of
9 August, the order of appearance, the order in which you
10 intend to call the various witnesses so we could have,
11 in addition to the information already provided, an
12 indication of the time when you disclosed the
13 statements to the Defence? Could you tell us as well
14 who are the witnesses who will not come to testify and
15 who are the 15 you mentioned? Because we wanted to
16 address this matter during the lunch break, and it
17 might be useful to have the said list, say, in half an
18 hour. That would be very useful.
19 But we have something else that bothers us.
20 I mentioned that with my colleagues over the break.
21 There are ten witnesses for whom you did not
22 disclose any statements because there aren't any
23 statements, but the Defence is entitled to prepare for
24 cross-examination, and we hold the view that the
25 Defence is entitled to at least a short summary
1concerning each witness, concerning also the topics
2 addressed by the witnesses during their testimonies.
3 This is essential. Failing that, the Defence is not in
4 a position to prepare its case and to defend their
5 clients, so we would like to have at least a summary of
6 the essential points dealt with during testimony. The
7 Defence, otherwise, could not know what you would have
8 to cross-examine upon.
9 Is the Prosecution in a position to disclose
10 such a summary for each of the ten witnesses concerned
11 to the Defence?
12 MR. TERRIER: If the Chamber expresses such a
13 wish, we shall, of course, comply. I do understand the
14 reasons why you formulate such a wish, you express
15 concern because there is no Rule, no provision dealing
16 with this. Nowhere is it said in the Rules that this
17 should be disclosed, the names should be disclosed to
18 the Defence; no special, no specific measure is
19 provided for either party because we might find
20 ourselves in the same situation when the Defence case
21 comes. Nothing is said as to the need and the
22 obligation to supply the other party, the opposing
23 party, with the gist of such witness statements. It
24 may well be a good cause to adopt, but with a proviso
25 that it may be difficult to be totally accurate and
1comprehensive in respect of a testimony that we intend
2 to provide the Court with just on the basis of
3 hypothesis of investigation carried out by the
4 Prosecution. Say if we call a specialist in demography
5 before this Court, we know, obviously, which topic we
6 shall ask him to deal with and it is therefore easy not
7 to provide the answers to the questions to the Defence
8 but at least to provide the Defence with the gist of
9 the questions that are likely to be asked of the
11 However, if we ask a specialist in ethnology
12 before the Court and we ask that person to express
13 their views on the living conditions, on the
14 relationships within the various ethnic communities
15 before 1992, in '92, and past '92, in '93, it will be
16 difficult for us to tell you what the gist will be of
17 such testimony. It could only be limited to what I
18 have said myself right now.
19 So we are perfectly aware of the concerns and
20 the wishes expressed by the Tribunal. We shall
21 endeavour, within reasonable limits, to provide a
22 summary for those witnesses who have not provided any
23 written statements.
24 I hope that this commitment is in compliance
25 with your wishes.
1JUDGE CASSESE: Yes, quite, but I don't quite
2 agree with you with your legal interpretation. There
3 are provisions in the Rules, there is a fundamental
4 principle anchored in the Statute, Article 21(4)(B)
5 every accused has the right to have anything that is
6 necessary for the preparation of their defence, and if
7 he wants to prepare his defence, the accused has to
8 know what the topics will be that will be addressed.
9 So we have a very solid legal foundation ensuring the
10 protection of the accused's rights but, on the other
11 hand, I wish to insist on something that we already
12 mentioned in a prior hearing when it comes to expert
13 witnesses. Let us attempt to have as few of them as
14 possible. Let us not fall again into this trend that
15 we notice from the Office of the Prosecutor, which is
16 to call too many witnesses. I think we should focus on
17 the allegations formulated by the Prosecution against
18 the accused. We have to limit, as much as we can, the
19 number of expert witnesses who are not going to say
20 anything in relation to the accused.
21 I am aware of the legal issues of crimes
22 against humanity, of persecution. The Prosecutor,
23 therefore, has to insist on some general facts to
24 establish the framework, and then, at a later stage, to
25 focus on the charges pressed against the accused. But
1we have got to focus on the charges rather than on the
2 general topics like demography. So let's try to avoid
3 too general issues. For instance, the relationship
4 between two ethnic groups causes me to wonder whether
5 it would be appropriate. Of course, you are free to
6 call any witnesses you may wish to call, but we have to
7 try and limit, to the best extent possible, the number
8 of witnesses, especially if such witnesses are not
9 relevant to the charges or not crucial in relation of
10 those charges.
11 MR. TERRIER: I do quite understand what you
12 are saying. I was just mentioning a specialist
13 in demography by way of an example. I don't think it
14 will be necessary.
15 Let me just say this: The Prosecution does
16 not intend to cause delay or digressions that will be
17 unnecessary to the Tribunal. We want to focus as much
18 as possible on the charges. However, we do wish to
19 provide necessary explanations as to the circumstances
20 of the crimes indicted in the indictment as well as on
21 the general circumstances prevailing at the time of the
22 facts. We hope to be in a position to provide the
23 Judges with all the points that are necessary for
24 determination of the issue. This may be ambitious, but
25 I can tell you that we do not want this trial to be
2 JUDGE CASSESE: I think we are coming close
3 to the end of this hearing. We are going to suspend
4 our work. We are going to start at 2.00 sharp, and I
5 hope that, within the next ten to fifteen minutes, you
6 will be in a position to provide us with a relevant
7 document, and I hope that we will not devote more than
8 three-quarters of an hour to these preliminary matters
9 in the early afternoon, including the housekeeping
10 matters that I would like to deal with the two
11 parties. I would like to move as fast as we can to the
12 opening statement by the Prosecution, so as to open and
13 start the trial proper.
14 But you want to ask a question, Judge May,
15 don't you?
16 JUDGE MAY: Mr. Terrier, have you the
17 document there that we were talking about with the
18 witnesses and the dates of disclosure? Is that really
19 it? Behind you there is a document being waved.
20 JUDGE CASSESE: All right. I think probably
21 we can, although this is not complete, we can use it
22 for the purpose of our ruling.
23 We will now adjourn and reconvene at 2.00
24 sharp. We will start with the Defence counsel. We
25 hope to hear from Defence counsel, to hear the name of
1the coordinating counsel. Then we will ask Mr. Krajina
2 to elaborate on the motion concerning Vlatko Kupreskic
3 and we will move on to the few practical housekeeping
4 matters. After that, I hope even before our break,
5 which will be at 3.30, I think, I hope that the
6 Prosecutor will probably start with his opening
7 statement, which I assume will not be very long because
8 we have already been provided a detailed pre-trial
9 brief, which is quite useful, and then we can move on
10 to various matters -- or witnesses.
11 This afternoon, I will ask the Defence
12 counsel whether they wish to make an opening statement
13 at this stage or whether they prefer to make their
14 opening statement at the end of the Prosecution case.
15 This is for you to decide, and you will let me know
16 this afternoon.
17 So we may adjourn now, and we will reconvene
18 at 2.00 sharp.
1--- Luncheon recess taken at 12.35 p.m.
2 --- On resuming at 2.05 p.m.
3 JUDGE CASSESE: Good afternoon. Yes, please.
4 MR. SUSAK: Mr. President, may I ask you that
5 we consider the question of alibi referred to by Judge
6 May, and at the same time I shall request to speak on
7 the issue if possible.
8 JUDGE CASSESE: Yes, this will be done in a
9 few minutes. Let us first of all deal with other
11 First of all, I would like to read out the
12 ruling on the motion filed on the 13th of August, 1998
13 by Defence counsel for Zoran and Mirjan Kupreskic. It
14 is as follows: The Trial Chamber decides that those
15 Prosecution witnesses whose statements have been
16 disclosed to the Defence after the 16th of June '98,
17 may be called by the Prosecutor only 30 days after such
18 disclosure. This ruling also applies to the ten
19 witnesses for whom the Prosecutor shall provide a
20 summary of evidence, whereas it does not apply to the
21 eight witnesses for whom the Trial Chamber ordered
22 protective measures.
23 Now, we will issue by tomorrow morning orders
24 concerning the two ex parte motions filed by the
25 Prosecutor. We have already deliberated on that matter
1and those two questions, and we may now move on to --
2 first of all, let me ask whether the various Defence
3 counsel have appointed a coordinating counsel. May I
4 ask Mr. Pavkovic to tell me whether he has been
5 confirmed as coordinating counsel.
6 MR. PAVKOVIC: Your Honour, members of the
7 Trial Chamber, by unanimous decision by my learned
8 colleagues, I shall in the future present the positions
9 which my colleagues feel I should present as our common
10 positions. Of course, I must underline that that does
11 not affect the core of the Defence of each one of us,
12 because we are all defending separate accused, and then
13 they will separately present their arguments. Thank
15 JUDGE CASSESE: That's good news. Now, by
16 the way, as for the definition of coordinating counsel
17 and his tasks, or her tasks, may I refer you to the
18 guidelines we issued, guidelines for the trial, letter
19 A, number 1: Defence counsel are to agree to appoint
20 from their number a coordinating counsel whose role
21 will be to address the Court and communicate with the
22 Prosecution on those matters in which the co-accused
23 share a joint position.
24 This is in line with what you just said, so
25 we are very pleased that all Defence counsel
1unanimously agreed to appoint you as coordinating
3 I think we shall now move on this question of
4 alibi, the alibi defence, and I would like to ask
5 Mr. Susak to address this item.
6 MR. SUSAK: Mr. President, the question of
7 alibi is a difficult issue, both for me and for my
8 client, Drago Josipovic. Namely, in the indictment
9 Drago Josipovic is charged, as are the other accused,
10 of criminal offences from the period of October '92 to
11 April '93. And I think it is impossible for the
12 accused to refer to an alibi, because the Prosecutor
13 charges him of having been there, moving around in his
14 neighbourhood, near his house, where his family lives,
15 and so on.
16 However, on that same indictment, Marinko
17 Katava was charged in the same way as the other
18 accused. And he referred to the Defence of alibi only
19 for the date of the 16th of April. And after that the
20 Prosecutor withdrew the indictment against him.
21 This fact confused my client, as it did me,
22 and I don't know how we can refer to an alibi when he
23 is charged with offences throughout this period. That
24 is one point.
25 My second point is: Could the Prosecutor
1assist the Defence in such a way as to specify the
2 criminal offence? Because the indictment says that on
3 the 16th of April, eight villages were attacked, and
4 the town of Vitez, and my client was a member of the
5 village guard; so the question is could he have
6 organised and planned an attack on such a wide area,
7 the more so as he was not a member of the civilian
8 authorities, he was not a member of the party, nor was
9 he a member of the active military force.
10 Therefore, I think that the Prosecutor should
11 assist us and shorten these proceedings, because in
12 that case we would need to hear only fewer, fewer
13 witnesses. So, could the Prosecutor specify where and
14 when Drago Josipovic committed the offences, what acts
15 he committed and what were the consequences of those
16 acts. That is my second point.
17 My third point: After that Drago Josipovic
18 could appeal for the Defence of alibi, only then.
19 JUDGE CASSESE: Are there other counsel
20 wishing to address the same issue of alibi? I see
21 none, so I will turn to the Prosecutor and ask him
22 whether they may assist us in this particular point,
23 either right away or in due course.
24 MR. TERRIER: Well, if you wish me to state a
25 few points on this matter, I shall do so. And there
1after I could complement my oral observation with
2 written arguments submitted at a later stage.
3 I somehow share this difficulty expressed by
4 the Defence counsel to a certain extent. The Rule,
5 Rule 67, on the communication of evidence on reciprocal
6 disclosure and the steps to be complied with in the
7 case of defence of alibi, all of this is perfectly
8 clear. The text is unambiguous.
9 It remains to be seen as of what moment, as
10 of what state we find ourselves in a situation of
11 alibi. Is it from the point onwards when somebody
12 alleges not to have been present at the scene of a
13 specific crime the accused is charge with? Or does it
14 happen only then when an accused maintains that on the
15 day of the events, in this instance on the 16th of
16 April, the accused was not present in the immediate
18 This is to be appreciated in the last
19 instance by you, Your Honours. But my view is as
21 In this case most of the accused, five out of
22 six of them, are accused of, as crimes against
23 humanity, of taking part in the attack launched against
24 the civilian population, the Muslim civilian population
25 in Ahmici on the 16th of April of 1993, and also they
1are charged with having committed in the context of
2 such an attack, having committed a number of specific
3 criminal offences.
4 Therefore, means of defence based on alibi
5 can only be summarised by the accused as the allegation
6 that they were not present on the 16th of April at the
7 scene of the crimes.
8 However, if they maintain that they were in
9 another city, in another town, in another country, they
10 should be in a position to provide to the judges, and
11 also at the hearing, to provide evidence that can be
12 examined and cross-examined. We then find ourselves
13 within the terms of Rule 67(A) second i.
14 If the Defence aims at establishing before
15 this Tribunal that the accused were well in Ahmici but
16 were not at scenes of the crimes then committed, for
17 instance, were not in the house or on the premises of
18 the house of Sejad Ahmic. Then I do not believe we are
19 in a case of alibi, we are in a means of defence as to
20 the merits. And then the Defence would claim that the
21 accused did not commit the crimes with which they are
22 charged. Then maybe they will try and introduce
23 evidence to that effect.
24 But my personal view, and I certainly defer
25 to the determinations made by the Tribunal, I believe
1that in such a context, we are not dealing with a
2 defence of alibi, strict assensu. Given the
3 circumstances, it would mean, then, that one or several
4 of the accused were not in Ahmici at the time when the
5 crime of persecution, which characterised the 16th of
6 April, 1993 attack were committed. But I defer to the
7 higher judgement of this Tribunal. It is a very
8 difficult, tough legal issue, indeed.
9 JUDGE CASSESE: We agree with your
10 interpretation of the alibi, defence of alibi, namely
11 that it should only apply or should be relied upon when
12 it is claimed that an accused was not in Ahmici on that
13 particular day, 16th of April, or not in the country.
14 But this defence of alibi cannot apply to somebody when
15 it is claimed that he was there but not doing what he
16 is accused of having done.
17 So therefore, your interpretation is regarded
18 by the Trial Chamber as the proper and sound one.
19 As for the question raised by counsel for
20 Josipovic, by Mr. Susak, and this is relating
21 particularly to the accused Josipovic; probably you may
22 wish to address the points addressed by Mr. Susak in
23 your opening statement, if you are in a position to do
24 so, so as to see whether or not you may to clarify your
25 position with regard to the crimes alleged to be
1committed by Mr. Josipovic.
2 Do you think you could do so when you are
3 moving on to your opening statement?
4 MR. TERRIER: I shall endeavour to do so,
5 Mr. President.
6 JUDGE CASSESE: Thank you. All right. I
7 think we could now move on to a different question,
8 namely, the question we raised this morning and on
9 which Mr. Krajina was asked to dwell. I wonder whether
10 Mr. Krajina could elaborate upon the various reasons
11 set out in the motion for Vlatko Kupreskic.
12 You may remember that this morning I drew the
13 attention of Defence counsel in particular to some
14 paragraphs of that motion, and these are the
15 paragraphs, 19 through 24. Why? Because I feel, my
16 personal feeling, but I hope the Court may get some
17 clarification on these items, is that probably some of
18 the queries made in those paragraphs and some of the
19 criticisms levelled by the Defence counsel against the
20 Prosecutor, probably they arrive out of some sort of
21 misunderstanding about the proper role of the
22 Prosecution and the possibility for Defence counsel to
23 cross-examine witnesses, Prosecution witnesses.
24 But still, as I say, to clarify the matter,
25 probably it's better for Mr. Krajina to restate their
1position on this item, his particular position, and the
2 position of Defence counsel for Vlatko Kupreskic so we
3 may ask, then, the Prosecutor to respond and come to
4 some sort of conclusion on this particular matter.
5 Mr. Krajina could you be so kind as to address this
7 MR. KRAJINA: Mr. President, thank you.
8 Before addressing this particular matter, I should like
9 to make a request. It has to do with the previous
10 ruling about my request for a co-counsel, assignment of
11 co-counsel. Something is not quite clear to us.
12 We fear that this decision taken this morning
13 was based on a previous request that we made in June of
14 this year. However, on the 11th of August, this year,
15 we submitted a new request to the Trial Chamber asking
16 its approval for the co-defence, co-counsel status for
17 our colleague, Mr. Par, in closing evidence showing
18 that he qualifies for this post.
19 I don't know whether the Trial Chamber had
20 this request at its disposal, but on the 3rd of August
21 we received a written answer from the Registry which
22 was favourable to our request; however, it was noted
23 that the final decision, of course, rests with the
24 Trial Chamber.
25 Therefore, if the Trial Chamber was not
1familiar with this most recent request, together with
2 its enclosure, and we gave a copy during the break to
3 the Registrar requesting she forward it to the members
4 of the Trial Chamber, so I hope you have now received
5 it. If you consider that I should continue, I will.
6 JUDGE CASSESE: Yes, please.
7 MR. KRAJINA: Regarding the clarifications
8 requested, regarding paragraphs 19 through 24 of our
9 motion for a separate hearing, I shall try to briefly
10 present our position.
11 The motion for the withdrawal of the
12 indictment was based on our conviction that the
13 Prosecution witnesses will not come to trial to confirm
14 the allegations from the indictment, because their
15 statements made in 1993, 1994 and 1995, in our view,
16 are not relevant; as they were made before local police
17 bodies and local investigators.
18 The Prosecutor interpreted this position of
19 ours in such a way by expressing concern that we were
20 infringing upon the Trial Chamber's decision of the
21 16th of June, prohibiting contact with witnesses. In
22 paragraphs from 19 to 24, we express our concern that
23 the Prosecutor is applying tactics with the witnesses
24 by naming certain people as witnesses, even though the
25 Prosecution knows that they will not appear in court.
1The Prosecution is still keeping those
2 witnesses under protection whereby it is impossible for
3 the Defence to have access to them. In today's
4 argument of the Prosecution, he has also said that he
5 will not give the statements of witnesses that he knows
6 will not appear. That is why we asked for a separate
7 hearing, prior to trial, to examine the allegations
8 made by the Prosecution regarding the Defence's
9 contacts with the witness, also to indicate the
10 pressure to which witnesses are exposed by the local
11 police, and that is why we made such a request and why
12 I am repeating that request on this occasion, that you
13 allow me to highlight a few more points linked to this
15 In connection with the concern expressed by
16 the Prosecutor on the possible violation of a ruling by
17 the Trial Chamber regarding contacts with witnesses
18 after the 16th of June, the Defence counsel of Vlatko
19 Kupreskic has submitted to the Trial Chamber all
20 clarifications and statements. We are also ready, at
21 the request of the Trial Chamber, to provide additional
22 explanations and to answer any questions that would
23 contribute to further clarification of these points,
24 for the simple reason that we have no cause to conceal
25 anything in these proceedings.
1It is the position of the Defence that no one
2 from the Defence or people connected with the Defence
3 of Vlatko Kupreskic had any contact with Prosecution
4 witnesses after the decision of the Trial Chamber of
5 the 16th of June, 1998.
6 The Prosecutor has not offered any evidence
7 that would contest this, and the concern, the alleged
8 concern of the Prosecutor, is, in our view, a tactical
9 move designed to present Vlatko Kupreskic's defence in
10 a negative light.
11 The contact that we had before the 16th of
12 June, that is, contact made with the witnesses by the
13 wife of the accused and other persons who contacted the
14 witnesses and who were later identified by the
15 Prosecution as Prosecution witnesses, we feel that
16 those contacts were quite in order. At that time,
17 there was no prohibition on contact, nor was any kind
18 of pressure exerted on those witnesses, nor were any
19 financial offers made to them. Of course, the
20 Prosecutor claims the opposite, as can be seen from his
21 submissions. The statements offered in support of
22 these allegations, there are hints of some kind of
23 financial offers made. But the Prosecutor has
24 forgotten to mention that the witnesses that he refers
25 to did not go to the police to complain about this but,
1on the contrary, the police came to pick them up when
2 they learnt that they had had contact with people
3 linked to the accused Vlatko Kupreskic.
4 The Trial Chamber, in our view, will find it
5 easy to establish the real truth regarding the
6 allegations about impermissible contact with witnesses,
7 for all of these witnesses will probably be called and
8 interviewed in this courtroom and we will be able to
9 hear from them directly what the real truth is and what
10 was the nature of the contacts that anybody had with
12 A second and, in our view, equally important
13 point in this area and which prompted us to ask for a
14 separate hearing, has to do with the influence on
15 witnesses exerted by the police responsible for
16 supervising them. I shall try briefly to explain our
17 position in this connection.
18 From the moment the indictment was confirmed,
19 my learned colleague, the Prosecutor, informally
20 divided all witnesses into Muslims and Croats,
21 considering the Muslim witnesses as Prosecution
22 witnesses. At our last Status Conference on the 15th
23 of May this year, after the Prosecutor's statement, we
24 opposed this thesis, considering it to be
1Muslim witnesses have been placed under
2 police supervision, probably upon instructions from the
3 Office of the Prosecutor. Any contact by the Defence
4 with these witnesses has thereby been prevented, even
5 before the decision of the Trial Chamber of the 16th of
6 June, because those witnesses, Muslims, if they were to
7 have contact with people linked to the accused, would
8 immediately be called in by the police for questioning,
9 and the persons with them, or those that may have
10 contacted them, are even arrested and questioned by the
11 police and even physically harassed. We have evidence
12 to corroborate all this.
13 We have submitted to the Trial Chamber and
14 the Prosecutor the documents in support of our
15 request. These witnesses fear the police in the
16 environment in which they live if they were to make
17 statements that could be in support of the defence of
18 the accused. I think it is common knowledge that the
19 interest of the police who supervise these people is,
20 for all the accused Croats, to be condemned, regardless
21 of whether there is evidence of their responsibility or
23 In the name of the defence of the accused
24 Vlatko Kupreskic and on the basis of our experience so
25 far in working on this case, we wish to draw the
1attention of the Trial Chamber to the existence of
2 impermissible interference with the witnesses on the
3 part of local bodies supervising the witnesses. They
4 prevent them from making statements that would be in
5 support of the Defence and, at the same time, they
6 pressure them to support the indictment at all cost.
7 This can be seen from the statements given to us by the
8 Prosecutor in which the same witnesses, who were
9 questioned on a number of occasions by various local
10 bodies, give biased and differing reports on the same
11 events. That is why we appeal to the Trial Chamber, in
12 the course of the presentation of evidence and the
13 examination of witnesses, to devote equal attention to
14 this objection of ours as well as the objections made
15 by the Prosecution about alleged interference with
17 Thank you, Your Honour.
18 JUDGE CASSESE: Thank you. I wonder whether
19 the Prosecutor could comment on these points?
20 MR. TERRIER: Very briefly, Mr. President.
21 I fail to understand what the purpose is of
22 the motion submitted to the Court. I believe I
23 understood, but this may be wrong. I understood that
24 this request, this motion, was for a severance of
25 instances of trials, also that the indictment would be
1withdrawn, but this is not very logical because that
2 would mean that we would try Mr. Vlatko Kupreskic
3 before the trial has actually begun.
4 I would like to state two things in this
5 respect: We know -- and last May your Tribunal, your
6 Chamber, devoted some time to this issue -- we know
7 that there were illegal contacts made between the
8 Defence counsel and specific witnesses. Money was
9 offered. This is certainly inadmissible in this trial
10 as it is inadmissible in all trials.
11 This situation was duly taken into account by
12 your Chamber, which did not rule out any contact
13 between Bosnian witnesses and the Defence; however, you
14 said that specific measures had to be taken to ensure
15 protection, which is quite normal. The procedure you
16 wanted to set up for such contacts never really was
18 However, this never meant that the Defence
19 counsel were precluded from having contact with
20 specific witnesses on account of their nationality or
21 of their ethnic background. This has never been the
22 view of the Prosecution and this was not enshrined in
23 the Court order.
24 We were somewhat surprised and worried at
25 reading in one of the motions filed by the Defence of
1Vlatko Kupreskic that there was this bold statement
2 according to which Prosecution witnesses will not come
3 to testify in this court on the basis of what happened,
4 and we wondered whether violation of the order issued
5 by the Tribunal had not been committed, but I have to
6 date no clues as to the occurrence of such a
7 violation. I have no evidence of any violation of the
8 Court order of the 20th of May by the Defence counsel.
9 However, I do state that given the very
10 sensitive nature of this issue, if a witness, a
11 Prosecution witness, allegedly approached by the
12 Defence, would not accept to testify, he would not
13 communicate to us the reasons for his refusal to
15 We have not been instructed of any illegal
16 contacts by Defence counsel, but I do want to reserve
17 the right to mention any such future occurrence, should
18 they happen, in which case I would turn to the Tribunal
19 to pass on such evidence. But I have no clues to the
20 effect to date, and I hope that the matter can be
21 settled for the time being by these very remarks.
22 Thank you very much, Mr. President.
23 JUDGE CASSESE: Let me try to sum up at least
24 the main points because so many points have been made.
25 As for the question of a separate trial, I
1think this matter has already been dealt with by Judge
2 Mumba in the order we mentioned before, which is, of
3 course, the 11th of August, 1998, and, of course, that
4 means that we will not hold separate hearings for
5 Vlatko Kupreskic; and as for the credibility of the
6 evidence, this is, of course, a matter which relates to
7 the merits of the trial and will be dealt with in due
9 As for the statement or the claim by
10 Mr. Krajina whereby some witness statements are not
11 relevant because they were made before police
12 investigators, again is a matter which may be looked
13 into in due course. For the time being, we don't need
14 to pronounce on this matter.
15 The third point is about the so-called
16 impermissible contacts with witnesses, and the
17 Prosecutor has just stated that they are not claiming
18 that after a particular date, the date which was set by
19 the Trial Chamber, any such contacts have been made by
20 the Defence counsel, family, relatives, and so on, with
21 witnesses. Of course, the Defence counsel are free to
22 get in touch with the Prosecution witnesses, however,
23 after complying with the conditions set out in the
24 order issued by this Trial Chamber; namely, they should
25 go through the Prosecutor or inform the Prosecutor that
1such contacts are being made.
2 A fourth point has been made by Mr. Krajina,
3 who has repeatedly spoken of tactics or tactical moves
4 by the Prosecutor, and they would consist of the
5 Prosecutor naming witnesses that they would then not
6 call to testify before the Trial Chamber.
7 I am at a loss to understand the significance
8 of this claim because if the Defence counsel feel that
9 those witnesses may be important for the Defence, they
10 may, of course, contact those witnesses, those
11 Prosecution witnesses, always after complying with the
12 conditions I just referred to, and afterwards, they may
13 decide, if those witnesses are not called by the
14 Prosecution, that they themselves, the Defence, will
15 call them as Defence witnesses. If witnesses are
16 called, they, of course, may be cross-examined by the
17 Defence counsel.
18 So therefore, I think that, as I expected,
19 the airing of the various criticisms and claims and the
20 discussion here in court has contributed to clarifying
21 that there is no major issue to be dealt with at this
22 juncture here in court.
23 Let me, therefore, quickly turn to the
24 question of the appointment of Mr. Par as co-counsel.
25 We were actually handed a document at
1lunch time, a document which has been filed on the 17th
2 of August, namely today, a document reproducing the
3 request submitted by Mr. Krajina for the assignment of
4 co-counsel and a letter sent to him by the Registrar,
5 and, actually, it is true what Mr. Krajina said, that
6 in her letter the Registrar wrote to Mr. Krajina that
7 this was a matter on which the Registrar wished the
8 Trial Chamber to pass our judgement on, and so
9 therefore, she left this matter for us to decide.
10 However, I would stick to what we said this
11 morning, to our ruling, because, as I said before, we
12 are very keen to be consistent with the judicial
13 practice of this Tribunal, the various Trial Chambers,
14 and also stick to the precedents set by our own Trial
15 Chamber and other Trial Chambers. For the time being,
16 it is apparent from what members of the registry told
17 us yesterday, on Sunday, namely that Article 14 of the
18 directive, the directive on assignment of Defence
19 counsel of 10th July, 1998, the requirements laid down
20 in this Article 14 are not met in this particular case,
21 and on the basis of this assessment and taking into
22 account, as I say, the precedents of our Tribunal, we
23 confirm our ruling that Mr. Par is granted the status
24 of legal assistant but not of co-counsel.
25 I propose now that since we have, I think,
1dealt with all matters which we raised this morning or
2 were raised this morning by the Prosecutor and the
3 Defence, I propose that I quickly move on to a few
4 housekeeping matters. These are a few practical
6 First of all, we insist that the parties
7 should fully comply with the guidelines we set out and
8 circulated a few months ago, the guidelines for the
9 trial which have been also handed in writing to Defence
11 In addition, this is number 2, I would like
12 to draw the attention of all Defence counsel to the new
13 amended provisions of our Rules of Procedure and
14 Evidence which have been reproduced in a booklet. I
15 hope that you all have received a copy of this
16 booklet. You will have noticed that quite a few Rules
17 of Procedure and Evidence have been amended, revised,
18 by the Plenary Session of the Tribunal, some other
19 provisions have been added, and please take into
20 account that we shall apply all those provisions, new
21 provisions, amended provisions, as long as they do not
22 affect or compress the rights of the Defence. That is
23 a matter which we discussed this morning.
24 This applies in particular to a new provision
25 on the limits of cross-examination. You may have
1noticed that there is a new rule on cross-examination,
2 there are new rules on the pre-trial Judge, pre-trial
3 Conference, and also a pre-trial Defence Conference.
4 Actually, we hope that we will be in a position to hold
5 such a conference towards the end of the Prosecution
6 case or, if Defence counsel prefer, at the end of the
7 Prosecution case we will hold this particular
8 conference so as to better organise the Defence case,
9 the practicalities of the Defence case.
10 Again, third point, practical matters, we
11 intend to, as for the sitting hours, we start every
12 morning at 9.30, have a break at 11.00, resume at
13 11.30, and stop at 12.30. In the afternoon, again we
14 will have a break of half an hour. We will reconvene
15 at 2.00 and finish at 5.00, so from 2.00 to 5.00 with a
16 break from 3.30 to 4.00.
17 Since we have to deal also with other matters
18 concerning other trials, we will need at least half a
19 day off, and we suggest that Friday afternoon should be
20 off. On Friday, if you agree, we would like to sit
21 until 1.00 and then have the Friday afternoon off so
22 that we could attend to other matters.
23 As from now, I should say that there will be
24 probably one day off, the 31st of August afternoon, the
25 afternoon. We will not hold any hearing on that
1afternoon, the 31st of August. I think it is a
2 Monday. It is a Monday.
3 I move on to my fourth point. These are
4 really down-to-earth practicalities. To save as much
5 time as possible, we would like to suggest that each
6 morning, after the registrar has called the case, we
7 will dispense with the appearances. If there is any
8 change in the appearances, you will let us know or you
9 will tell the registrar so we will not even waste our
10 time in calling for the appearances; and when we come
11 to the production of evidence, in particular,
12 witnesses, we would like to start from the assumption
13 that documents tendered into evidence by one party will
14 be admitted into evidence if not objected to by the
15 other party. So that I don't need each time to ask the
16 other party, "Do you object to the admission into
17 evidence of this particular exhibit?" If, therefore,
18 no objection is made after the proffer of one party to
19 give in evidence the particular exhibit, it is assumed
20 that that document is admitted into evidence. A very
21 practical measure again to save time.
22 We will think of other measures designed to
23 speed up our proceedings.
24 We have a few other points, but some of them
25 have already been covered, and so therefore, if you
1don't have any other matter, I think we could now turn
2 to the Prosecutor and ask whether they are prepared to
3 make their opening statement.
4 However, before doing so, let me very quickly
5 go through the list of witnesses just for one minute
6 because this may be a point to be raised before the
7 opening statement of the Prosecutor.
8 I noticed -- I have so many lists that now I
9 can't find it -- but I noticed that there are 32, I
10 counted 32 Prosecution witnesses who, according to the
11 Prosecutor, will only address Count 1. I wonder
12 whether the Prosecutor -- this is just a query --
13 whether the Prosecutor needs so many witnesses only for
14 Count 1, and I assume, having read some, not all of
15 them, some of the witness statements, relevant witness
16 statements, that those witnesses are not going to
17 testify on any particular accused. They will not deal
18 with the question of whether or not the accused were
19 there or committed the alleged crimes, they will only
20 address the question of persecution and so on.
21 If this is so -- but I may be wrong, and I
22 stand to be corrected -- then again we, the Court,
23 wonder whether you really need so many witnesses. But,
24 as I say, you don't need to respond now. You may need
25 to ponder this matter and, in due course, decide
1whether or not to drop some of those particular
2 witnesses because we could then shorten the list of
4 As I say, since we don't need a response from
5 you right away, we may ask you to make your opening
6 statement if you think that you could finish by 3.30.
7 If not, if you wish to have now a break, we could now
8 rise and start with your opening statement after the
9 break. It is for you to suggest the better course of
11 MR. TERRIER: Mr. President, I can't tell you
12 exactly. I'm not sure that I will be able to complete
13 the opening statement before 3.30.
14 JUDGE CASSESE: How much time do you need?
15 MR. TERRIER: Three-quarters of an hour to
16 one hour. I would like to turn to the map, have some
17 comments, and also introduce two video clips.
18 JUDGE CASSESE: But it might be better to
19 adjourn the hearing now and return within -- yes, I
20 think we need 30 minutes every time, as we were told by
21 the registrar, we need 30-minute breaks.
22 So we can adjourn. We shall return at 3.25
23 sharp, and we shall start with the opening statement.
24 That's fine. Thank you.
25 --- Recess taken at 2.55 p.m.
1--- On resuming at 2.32.
2 MR. TERRIER: Mr. President, shall I go to
3 the pulpit, or what should I do?
4 JUDGE CASSESE: As you like.
5 MR. TERRIER: If you don't mind, I'll stay
7 Your Honours, this morning already, and until
8 now we have had discussions that will make it possible
9 for me to shorten my submissions. Your Trial Chamber,
10 as well as the Defence counsel, have received the
11 pre-trial brief which gives you an overview of the
12 Prosecution's intentions for this trial.
13 Through this opening statement I wish to
14 convey to the Court some factual elements, some
15 topographical elements, and that such elements will be
16 useful to the Court as soon as we hear the first
17 Prosecution witnesses. And they will be useful, too,
18 when it comes to the Defence case.
19 These topographical and factual elements will
20 be challenged by the Defence at some stage, I'm sure.
21 Although, it might not be necessary to come back to
22 them during the proceedings.
23 To start with, I shall describe in broad
24 terms what happened exactly and precisely on the 16th
25 of April in Ahmici. What took place was an ethnic
1cleansing operation directed by a military unit against
2 a civilian population.
3 I shall be brief, but I think it is necessary
4 to set up the frame, the context in which the
5 Prosecution witnesses will be better understood in the
6 days to come. And then equally briefly, for indeed all
7 these points were stated in the pre-trial brief, I
8 shall make some observations as to the legal
9 characterisation against the excused, but let's speak
10 about the location.
11 I think it is necessary for an investigator,
12 for a judge to know the places we're going to be faced
13 with at the beginning of a trial.
14 Let me get closer to the map, and I'll take,
15 I'll use the microphone located close to the map.
16 This photograph, this aerial photograph shows
17 you the Lasva River Valley. We are some 90 kilometres
18 north-west of Sarajevo. The Lasva River Valley is named
19 after a river which you see meandering here, and which
20 goes further towards the south-west of the area.
21 The major town of Zenica is mainly inhabited
22 by Muslims and lies in this direction which I'm
23 showing, some 15 kilometres away and can be reached
24 easily either through this road extending into the
25 Lasva River Valley, or through this mountain road that
1goes uphill, goes through the top of the mountain to
2 get to Zenica.
3 There were two areas which were mainly
4 inhabited by Croats in this valley. There is Busovaca,
5 which you can see here towards the top, and also the
6 town of Vitez, which you see here.
7 However, there is a major neighbourhood
8 inhabited, or used to be inhabited by Muslims in
9 Vitez. The neighbourhood no longer exists today, it
10 was destroyed in the early hours of the 16th of April,
11 1993, as was Ahmici was destroyed, too.
12 Ahmici is located in these lines that have
13 been drawn into a rectangle. I draw your attention to
14 two sides, this one on the road between Busovaca and
15 Vitez going further towards Travnik. This was known as
16 the Bungalow, a former hotel, a former restaurant.
17 Then, and when I mean then, I mean in early 1993, was
18 inhabited by a Croat unit, the unit of the Jokeri or
19 Jokers. We shall have the opportunity to come back to
20 the various actions carried out by the Jokeri.
21 The second site is located here. The
22 Dubravica school. This is a relevant site, because a
23 large number of the Muslim inhabitants who used to live
24 in Ahmici, that's where they were rounded up and
25 detained for some 14 days, up until the time when the
1Red Cross intervened and secured their release.
2 This is the Dubravica school. And then
3 towards late '92 and early '93, you have the front line
4 against the Serbs in this direction towards the
5 north-west, some 30 kilometres away from Vitez, beyond
6 the cities of Travnik and Turbe.
7 And we apologise for this, the northern
8 direction is more towards what is usually described as
9 the south, but if we had used the proper cardinal
10 points we would not have been able to show you the
11 whole area to be investigated.
12 And then I'm going to show you the part that
13 has been blown up, to show you the actual village of
14 Ahmici. I may ask the help of the usher for the map to
15 be produced.
16 Can you see this map or photograph?
17 This aerial photograph has the north,
18 actually it's towards the west, and this is an enlarged
19 section of this first photograph I just showed you.
20 You find the road, this is a regional road along the
21 valley from Busovaca to Vitez, you can see the Bungalow
22 here, and towards the centre of the photograph you have
23 most of the houses making up the village of Ahmici.
24 However, as the inhabitants themselves put
25 it, whether they are Croats or Muslims, there are also
1various names given, traditional names given to the
2 various parts of the village. For instance, this is an
3 area called the Donji Ahmici, or the lower Ahmici. And
4 as you go up the hill you come across an area sometimes
5 called Sutra (Phoen). You go further along the road
6 that leads to the forest and you come across an area
7 often called Grabovi.
8 Still further towards the top, then you come
9 to upper Ahmici or Gornji Ahmici. And this area shown
10 here people tend to call it Zume, close to Santici.
11 And this last one I have shown you is Pirici.
12 Areas inhabited by Croats and Muslims in 1993
13 are delineated and separated. You can take this as a
14 landmark, a cemetery, this is used by many witnesses
15 as a landmark, because you can't miss it. It is very
16 visible from everywhere.
17 There is another landmark that of the Pican
18 cafe, a Croat place close to the main road, and it will
19 be a major landmark for many witnesses. The area of
20 Zume Santici was predominantly an area inhabited by
21 Croats. There is another Croat area around Sutra
22 Grabovi with, in particular, what will be termed by
23 many witnesses the Kupreskic houses, in other words,
24 many members of the Kupreskic family owned a house in
25 that area. Vlatko Kupreskic, one of the accused, has
1his house here, and his shop was here. The accused
2 Mirjan Kupreskic owned a house here. Zoran's house was
3 here. Dragon Papic owned a house here on the other
4 side of the road and Mr. Josipovic owned a house here,
5 further down. As to Mr. Santic, he does not live in
6 this area. He lives towards the town of Vitez, which
7 can be reached along this road only four kilometres
8 away. So, this is what I wanted to show you by way of
9 these photographs. If you do not mind, we shall carry
10 on this topographical discovery with a video clip.
11 This was shot in 1993, following the events -- '96,
13 A long time after the events, but showing the
14 village of Ahmici in the condition it was between 1993
15 and today. There is practically no difference
16 whatsoever between the village then and the village
17 now. With one exception, some of the former
18 inhabitants, Muslim inhabitants of Ahmici where -- the
19 census of NGOs of various governments -- have started
20 clearing the rubble and the ruins and have started
21 building their houses again. None of the houses
22 formerly inhabited by Muslims is today inhabited by
23 Muslims, but there are a few attempts at rebuilding.
24 Such attempts have been started on some of the hills
25 and especially, they all take place in Gornji Ahmici,
1in upper Ahmici, where they were exclusively Muslim
2 inhabited houses prior to 1993. While viewing the
3 video clip we are going to see three various phases.
4 The first phase was shot from a helicopter and we shall
5 see the lower Mosque, we shall carry on to the upper
6 Mosque and then we shall make a loop and come back to
7 the initial point. The second sequence taken by car
8 will start from this forking off of the main road to
9 its secondary road, we'll go up to the centre of
10 Ahmici, Sutra Grabovi and we'll take this small road to
11 see the Kupreskic houses and we shall return to the
12 larger path to go back or go up to upper Ahmici.
13 We have a short section of the road, the main
14 road we will be able to see the front houses of the
15 Zume neighbourhood, we will see the Pican cafe. We
16 shall catch glimpse of a house that used to be located
17 in this Croat neighbourhood and which was used at the
18 time of the events in April of 1993 to round up some of
19 the Muslims captured by the HVO forces before the
20 people captured were taken to the Dubrivica school,
21 which I mentioned a few moments ago. If you don't mind
22 I will return to my desk and provide with you some
23 comments as we view the video clip.
24 (Videotape played)
25 MR. TERRIER: The helicopter is moving
1towards the north-west along the regional main road.
2 You can see in the centre of the image the catholic
3 cemetery. Now, central in the image is that little
4 road that enables you to reach upper Ahmici. You can
5 see the lower Mosque which used to have a minaret, the
6 minaret was blown up by explosive in the evening of the
7 16th of April, 1993, around the Mosque you can see
8 houses which, by all accounts, are destroyed and
10 Now, towards the lower part of the image you
11 can see the house of Vlatko Kupreskic and the part goes
12 up towards upper Ahmici, and if a few moments you're
13 going to see the upper Mosque which was also
14 extensively destroyed. You can sit here in the middle
15 of the picture and the houses surrounding the Mosque
16 were inhabited by Muslims and the houses were burned or
17 destroyed to the ground.
18 I suppose we're going to see the second part,
19 where we start from the regional road to go up towards
20 upper Ahmici.
21 Stop the image, please.
22 I think you must be informed of this: There
23 is a traditional way of building houses in the area,
24 Croat houses would be of the Swiss chalet types, so two
25 sided roofs, whilst Muslim houses usually had a hipped
1roof with four sides. That's the rule. But you will
2 notice, especially here on this picture, that there
3 were also many exceptions to this rule, and that some
4 Muslim houses also had two-sided roofs, thereby showing
5 no distinctive sign to somebody not being from the
6 village. There was no difference between that house
7 and a Croat house.
8 We will mention the house of Mesic Pjanic
9 (Phoen) in the course of this week. All of the houses
10 along the road have two-sided roofs, so nothing would
11 differentiate a Muslim house from a Croat house along
12 that road.
13 We can carry on, yes, please go on.
14 You can see here a Muslim house with this
15 four-sided roof. You can only see the roof structure
16 because there is no roofing material anymore, and here
17 you have the Mosque.
18 What you see here is the school or what used
19 to be the school, it was also destroyed on the 16th of
20 April, 1993. However, here you can see intact Croat
22 To the right you can see a shop owned by
23 Vlatko Kupreskic, his house was close by to the right
24 of the shop. And straight behind, tens of metres away,
25 there is the house of Saki Pafmic (Phoen), or rather
1the ruins of what remains of the house, and we will
2 mention this during this week of proceedings.
3 We're moving now towards the Kupreskic
4 houses. Towards the right, yes, carry on, this house
5 is not the house of one of the accused; however, on the
6 other side you've got the houses of Zoran and Mirjan
8 Here's Mirjan Kupreskic's house, while
9 Zoran's house is straight in front of this one. Vlatko
10 Kupreskic's house is straight on the left. We fork off
11 and go through this little path to upper Ahmici, back
12 in 1993 this area was exclusively inhabited by Muslims,
13 and all the houses still today are destroyed.
14 In front of us now to the right is the upper
15 Mosque. Here it is. As you can see, very extensively
17 We are now in upper Ahmici where all the
18 houses were destroyed on the 16th of April, '93. Some
19 of which are now being rebuilt or have work done to it,
20 for instance, to rebuild the roof frames.
21 Now, we have reached the upper part, the
22 highest point in Ahmici.
23 The third clip was made on the regional road
24 in the direction of Vitez, and we will see, to the
25 right of that road, the houses of Zume, houses which
1were virtually all Croat, and the Pican cafe at the end
2 of this clip.
3 (Videotape played)
4 MR. TERRIER: Can you stop that? The houses
5 that we see, all of them with two slopes, they're all
6 Croat houses, houses at the end of the Zume area, the
7 Pican cafe is on the right-hand side of the screen, and
8 it was here that a certain number of detainees were
9 rounded up, and we will see this spot on the left-hand
10 side of the screen.
11 Mr. President, Your Honours, these were the
12 principal topographical indications that I wanted to
13 present to you, and I think that this film, this video
14 that you have just seen, shows us or illustrates one of
15 the elements of the facts that we need to prove to the
16 court, that is, that on the 16th of April, 180 houses
17 in Ahmici were destroyed, that all the destroyed houses
18 were Muslims', and that almost all the Muslim houses of
19 Ahmici were destroyed. On the other hand, Croat houses
20 remained intact. Not a single one of them was damaged
21 in any significant manner.
22 This is a fact which could have been admitted
23 by the Defence in its pre-trial brief. Also, the
24 Defence could have admitted the census data from 1991
25 according to which, in 1993, at the beginning of 1993
1or at the end of 1992, Ahmici had 466 inhabitants of
2 whom 356 were Muslim and 87 Croat, which means a very
3 large majority were Muslims.
4 Also something else that the Defence cannot
5 contest, that at the end of 1992 and the beginning of
6 1993, there was a certain number of Muslim refugees
7 staying in Ahmici which were chased out of their homes
8 by the fighting on the front against the Serbs and
9 which came to live with their families in Ahmici. Very
10 often, these people came in 1992, at the end of the
11 summer, and sometimes even at the beginning of 1993.
12 These refugees, all Muslims, were not well-known among
13 the local population, so that it is difficult to assess
14 exactly the number, but we can say that about 50
15 refugees, who were chased from their homes from the
16 front-line with the Serbs, stayed mostly in weekend
17 houses because in Ahmici, in the lower area, there were
18 a number of smaller houses used before the war by
19 people residing in the cities, and these houses were
20 placed at the disposal, quite naturally, of these
22 If we compare the village of Ahmici before
23 the 16th of April, '93, and the village of Ahmici in
24 the days that followed and even to this day, we will
25 see that what used to be a Muslim, majority Muslim
1village, we see hundreds of -- Croat village, and we
2 will also see that this total destruction of Ahmici
3 took place in a very short period of time, a period of
4 time that began on the 16th of April at dawn and which
5 continued in the hours that followed, that is, the next
6 morning, the morning of the 17th.
7 I was struck by the fact that on the wall of
8 the lower mosque, we found the words "48 hours of
9 ashes," and it is rather strange that numerous Muslim
10 villagers said that "48 hours of ashes" was the code
11 name given by the HVO forces to this ethnic cleansing
13 I will say straight-away that we were not
14 able to prove this assertion which is based basically
15 on a rumour, a persistent rumour, but still a rumour.
16 However, it has been possible to note the total
17 correspondence between this designation of 48 hours of
18 ashes, perhaps it will be better to say of blood and
19 ashes, fully illustrates the pain and suffering of the
20 victims of those events.
21 I will not refer to the political situation
22 in Central Bosnia-Herzegovina at the beginning of
23 1993. I think that the Tribunal is perfectly familiar
24 with that situation, as it is with the military
25 situation that was prevalent at that point in time, and
1the existence of an armed conflict opposing the Croats,
2 the Croat authorities of Bosnia, against the
3 authorities of Bosnia-Herzegovina. The army of the
4 Bosnian Croats, the HVO, was present in full strength
5 in the area of Vitez and Busovaca. On the other hand,
6 the army of Bosnia-Herzegovina was virtually absent
7 from this region.
8 The fighting could entail these two armies in
9 Travnik, that is, about 20 kilometres to the west of
10 Vitez, in the region of Ahmici itself and in Ahmici,
11 there were what was known as the Territorial Defence
12 forces, and this Territorial Defence cannot be
13 considered as an armed force. It is a grouping of
14 citizens, based on the voluntary principle, who got
15 together to protect the security of their homes and
16 their families. If they were armed, they were lightly
17 armed. They didn't, each one of them, have a weapon,
18 in principle, and if there was any command structure,
19 there was no real centralised chain of command that
20 would correspond to a military structure.
21 In that period, I am talking about the end of
22 '92, the beginning of 1993, UNPROFOR was present in
23 the area. Vitez, Ahmici belonged to the area of
24 responsibility of the British battalion that was based
25 in Vitez and whose commander at the time was Colonel
1Stewart and his assistant was Colonel Watters, who will
2 be our first witness and who will speak, if the Court
3 allows it, after me.
4 The mission of UNPROFOR was to protect
5 humanitarian convoys, to protect the population, of
6 course, fully respecting the principle of impartiality
7 regarding the conflict in which various communities
8 were opposed against one another in Central Bosnia as
9 in the rest of Bosnia-Herzegovina. But this British
10 battalion area, or the members of the battalion, were
11 present and their testimony is important for an
12 understanding of the situation, and they were observers
13 which your Tribunal, I am sure, will listen to with
14 great attention.
15 Regarding the forces present in Busovaca and
16 Vitez, they will have important information to convey
17 to you. At the end of 1992 and the beginning of 1993,
18 we find ourselves in a situation of an armed conflict
19 between the Bosnian authorities and the Bosnian Croat
20 authorities, the alliance that united them against a
21 common enemy, the Serbs, having completely been broken
22 in the meantime.
23 In this situation of an armed conflict, it
24 had very direct impact on the situation in Ahmici. In
25 October 1992, in Ahmici, an event occurred which was an
1immediate reflection of the armed conflict which had
2 swept to Central Bosnia at the time.
3 In the second half of October 1992, combat
4 broke out in Travnik between elements of the Bosnian
5 army and elements or units of the HVO. The Territorial
6 Defence of Ahmici placed on the road linking Busovaca
7 and Vitez and then on to Travnik a roadblock which, in
8 the view of their authors, was to prevent HVO forces
9 from Busovaca to make progress towards Travnik and thus
10 to reinforce the forces engaged in the conflict in the
11 region of Travnik.
12 This roadblock on the road at Ahmici was
13 erected on the 19th of October. It was manned by some
14 30 Muslims from the village of Ahmici and, as we will
15 show in the course of our case, the 30 or so men were
16 insufficiently armed for the task they assigned
17 themselves and they had very little command.
18 This provoked the fury of the HVO which
19 immediately demanded the deblocking of the road and
20 which, after some threats at dawn on the 20th of
21 October, launched a resolute attack because the HVO
22 used heavy weapons against the roadblock, against the
23 barricade but, it is also important to note, also
24 against non-military targets, that is, houses or some
25 houses which were in the lower part of Ahmici.
1At the beginning of the afternoon, members of
2 the Territorial Defence of Ahmici found themselves in a
3 weaker position; they withdrew and opened the way to
4 the HVO. More than 20 houses were destroyed, the
5 minaret of the lower mosque was seriously damaged, and
6 this target was obviously intentionally targeted, and
7 it cannot, under any circumstances, be considered a
8 military target. A young man of 15, Alija Pezer, a
9 non-combatant, was killed by a sniper during that day.
10 After that event of the 20th of October,
11 1992, the situation in Ahmici between the communities
12 became extremely tense. The violence throughout that
13 period, from October '92 until April 1993, was rampant
14 and, from time to time, it would explode.
15 The HVO forces, in fact, in Ahmici, as in
16 Vitez, required total subordination of the Muslims.
17 They required the surrender of weapons. They demanded
18 the right to be able to control any movement by the
19 Muslims. They demanded a curfew to be applied to the
20 Muslims but not to the Croats.
21 At the beginning of 1993, a unit that called
22 themselves the Jokers established itself in the
23 Bungalow, and members of this unit, during the weeks
24 that followed until April 1993, will distinguish
25 themselves in particular by their brutality towards the
1civilian population and their provocation consisting,
2 among other things, of firing at roads, firing at cars
3 or buildings along the road, and very many Muslims in
4 that period were victimised by these acts of
5 provocation which were elements of persecution.
6 A few weeks before the tragedy in April, a
7 person called Esad Salkic, who lived in Nadioci, which
8 is very close to Ahmici, in the direction of the
9 Bungalow, was killed in his house because he refused to
10 surrender a weapon demanded by the HVO. At that point
11 in time, the Muslims decided to protect themselves with
12 night guards. The Croats reacted immediately,
13 demanding that these patrols be abolished, and in the
14 discussions that ensued between the Muslims and Croats
15 of Ahmici, upon a suggestion, made a conciliatory
16 suggestion by the Muslims that there should be joint
17 patrols by the Croats and the Muslims, the Croat
18 representatives, among whom Zoran Kupreskic, invoked
19 superior orders and said that there was no question of
20 ensuring security of the civilian population with joint
21 patrols. On the 15th of April, during a meeting, the
22 Muslims were given assurances that no steps would be
23 taken against them and that their safety was fully
24 ensured in the region.
25 Even though tension was running high between
1the two communities and even though difficulties were
2 considerable and even though the impact of the armed
3 conflict was significant in Ahmici, the majority of the
4 witnesses will tell you, and not one of them will tell
5 you that not one of them could have imagined that the
6 events of the 16th of April could take place. When we
7 listen to the various witnesses speaking about that
8 day, this attack was against a civilian population, the
9 attack of 16th of April, which reflected a
10 determination and a savagery that was quite unique.
11 That attack did not have any aspect of an
12 improvisation. It was an episode of an HVO offensive
13 against Muslim settlements throughout the Lasva River
14 Valley, and particularly in Vitez and Ahmici, certainly
15 a most conspicuous episode but only an episode of this
16 overall offensive.
17 The attack started about 5.30 in the
18 morning. They were supported with heavy weapons,
19 anti-aircraft guns in particular charged with
20 explosives and with incendiary bullets. The ground
21 forces, the infantry belonging to the HVO and the
22 Jokers unit, which were wearing camouflage uniforms in
23 the case of the HVO and black uniforms in the case of
24 the Jokers, they were armed with automatic rifles, with
25 mortars, with incendiary weapons, and this military
1force was deployed first in the lower part of Ahmici
2 against an exclusively civilian population, women,
3 children, and elderly, which were awoken from their
4 sleep and were still wearing night-clothes, night-gowns.
5 It should be known that the attack started
6 simultaneously in Grabovi. The village was encircled,
7 shelled from the outside, but also attacked from within
8 from the area of the Kupreskic houses, that is, the
9 locality known as Grabovi.
10 This action continued throughout the day;
11 they went from one house to another. The soldiers were
12 perfectly organised, they knew what they had to do,
13 they communicated by radio. Each one of them carried a
14 ribbon which indicated their task or the zone they were
15 assigned to. They fired at the houses. They ordered
16 the inhabitants to come out. In principal, they
17 separated the men from the women. In most cases, they
18 shot the men on the spot, and they took the women and
19 the children to detention centres. Sometimes women and
20 children were also killed because soldiers fired on
21 several occasions on people who tried to flee, whoever
22 they may have been, whether they were children or
23 adults. In all the cases, the soldiers set fire to the
25 The members of the UNPROFOR, the British
1battalion of UNPROFOR, as of 11.00 that morning and on
2 several occasions throughout the day, entered Ahmici to
3 assist the wounded, to try to protect the women and the
4 children, to try to evacuate them to a safe area. When
5 the members of the British battalion entered Ahmici
6 with their armoured vehicle, the HVO forces moved away,
7 they didn't stop shooting; but as soon as the British
8 battalion withdrew from Ahmici, the HVO forces came
9 back again and continued their operation.
10 The members of the British battalion did a
11 lot for the civilian population and their testimony is
12 important. They helped many Muslim civilians, many
13 women and children, and I think that in the dramatic
14 circumstances they found themselves in, they did
15 everything that they could within their mandate. Those
16 of them who were there in Ahmici will convey to you the
17 feelings that they had at the time.
18 This continued throughout the day. In the
19 early morning hours of the next day, it was completed.
20 Ahmici could not resist. Only a few Muslims, belonging
21 to the Territorial Defence with some light arms, did
22 fire a couple of shots. There never was a single
23 Croatian victim alleged, so that the resistance of the
24 TO was symbolic. It was the resistance of men trying
25 to protect their families from soldiers threatening
2 This operation provoked a great deal of
3 emotion, it stupefied many witnesses, eyewitnesses, the
4 scope of the destruction, the number of victims, some
5 of whose bodies were still in the buildings 15 days
6 after the operation, all this was noted by various
7 persons, either members of the UNPROFOR or members
8 belonging to the U.N. or to European or international
10 I would like to suggest that we now see a
11 very brief video which quite precisely reflects the
12 emotions felt 15 days after the event because some
13 reports were aired about this massacre. This film was
14 made by the BBC News, it was aired by BBC News at the
15 beginning of May 1993 when British soldiers of UNPROFOR
16 came to the village to investigate and to carry out
17 some of the bodies from the rubble.
18 Perhaps we can now look at this video?
19 (Videotape played).
20 MR. TERRIER: There is the second part to it.
21 Needless to say, we shall submit to the
22 Defence a copy of the video clips as well as copies of
23 the aerial photographs that are introduced in the
24 beginning of my opening statement.
25 Let me add this: In Vitez on the 28th of
1April, 1993, 12 days, that is, after the attack, 99
2 bodies, some of which beyond recognition, burned beyond
3 recognition, were buried in some mass graves dug by the
4 members of the British battalion. You shall see
5 footage of the burial ceremony.
6 There are four members of the Ahmic family
7 that were later discovered by the BritBat members in
8 the ruins of the torched house, were buried on the 6th
9 of May in the same cemetery. This means there are
10 today 103 bodies, the bodies of the victims of the HVO
11 attack in the Lasva River Valley.
12 However, 45 bodies could not be identified
13 before they were buried, and we know that all of the
14 victims were not from Ahmici. We know that a lot of
15 the victims of Ahmici have not been buried in the Vitez
16 cemetery. And we, but especially the families, do not
17 know where their next of kin were buried. There was a
18 rumour, according to which there was a clandestine
19 cemetery set up by the Croats for unknown reasons.
20 This was never established or confirmed, but it
21 nevertheless remains that a lot of families still don't
22 know today where their parents were buried.
23 During these trial proceedings, we shall
24 endeavour to establish as accurately as we can the
25 number of civilian victims in Ahmici. This figure
1could be some 110 people of whom over 30 women and
2 close to 20 children or teenagers under 18 years of
3 age. This is a considerable amount of children and
4 teenagers. This will be shown and established with as
5 much accuracy as is possible today.
6 The witnesses you will come to hear, the
7 inhabitants of Ahmici will tell of their personal
8 tragedies, the ones they experienced during those days,
9 but also in the ensuing months and years.
10 Let me insist on the fact that there were
11 individual tragedies in Ahmici that have left no
12 traces, no survivors, no witnesses.
13 I would like to speak of the killing fields,
14 as some witnesses will, too, close to the lower part of
15 Ahmici. This was the name given by the members of the
16 British battalion when they saw what they had to see in
17 the massacre.
18 In the middle of the 16th of April in those
19 killing fields across the Catholic cemetery, the
20 members of the British battalion saw some 20 bodies,
21 bodies of civilian people, some were female bodies,
22 some were the bodies of children, one woman was killed
23 while she was still holding the hand of a child.
24 There is another tragedy, that of this father
25 and his child whom he was holding in his arms, and they
1were both killed, shot dead on their doorstep. Another
2 tragedy, among many others, is that of Sejad Ahmic,
3 whose house you've just seen. Colonel Stewart
4 mentioned the victims found near that house. But I
5 must state we have very little information as to what
6 really happened, apart from what Colonel Stewart said,
7 and we have no accurate data on the exact circumstances
8 in which all the members of this family were killed.
9 We are well aware of the fact that the
10 tragedy and the crime of Ahmici is still not known in
11 many of its aspects, but we have a few accurate facts
12 that we will show during these proceedings. And I am
13 sure that the Tribunal and the Court will be convinced
14 of the elements we will show.
15 I will stop here when it comes to the actual
16 facts, time is flying; and if you will allow me, I
17 shall be briefer, to move straight away to the
19 Why were the crimes committed in Ahmici in
20 1993? Why were they crimes against humanity? Pursuant
21 to Article 5 of the Statute, and pursuant to the case
22 law established by this Tribunal.
23 If we look at the motives and the purposes
24 sought by the perpetrators of these crimes, there is no
25 doubt whatsoever they did it on ethnic, political,
1racial and religious grounds. They wanted to cleanse
2 the area, they wanted to root out the entire
3 community. One community wanted to root out the other.
4 The Tribunal knows that the Vance-Owen Plan
5 was made public in January, 1993, a plan according to
6 which they should be Canton province number 10, to be
7 under Croat administration was Ahmici and Vitez, were
8 to be under province number 10.
9 Most of the inhabitants in that province of
10 Canton were in deed Croats, but there were some
11 municipalities, some hamlets or villages that had a
12 Muslim majority, which was the case in Ahmici.
13 The offensive launched by the HVO against the
14 Muslim civilian dwellings and the civilian population
15 in Ahmici in 1993 did not aim at fighting against the
16 positions of an opposing army; it aims at splitting,
17 separating communities by driving out, by destroying
18 houses, by murdering, by removing, by force transfer
19 and deportation. In so doing they aimed at rooting out
20 the Muslim community from the face of this earth.
21 This operation is beyond any reasonable doubt
22 planned and carried out on a systematic, in a
23 systematic fashion at large scale. The forces involved
24 in the Ahmici operation, in the operation against
25 Ahmici, the means used, the material, equipment, the
1military resources involved implied that everything had
2 been planned and organised at all levels of the
3 military command.
4 Planning and preparation implies orders that
5 have been prepared, issued, confirmed at all levels of
6 this military hierarchy. And in spite of these
7 important resources, they managed to keep an absolute
8 secrecy in relation to the operation in the days prior
9 to the attack. Not a single Muslim was warned of what
10 was about to happen.
11 As I said before, this operation was part of
12 a general offensive in the Lasva River Valley, against
13 all Muslim positions and houses. It lasted several
14 days, did not come up against any resistance until such
15 time when the army of Bosnia-Herzegovina launched a
16 counter attack.
17 For instance, in Vitez similar facts as those
18 in Ahmici were committed on the same day and Stari
19 Vitez, the Muslim neighbourhood, was totally destroyed
20 on that day.
21 BritBat members will tell that they went out
22 in the early hours of the morning on that day and they
23 saw in Vitez the bodies of civilians lying around in
24 the Muslim neighbourhood while in the Croat
25 neighbourhood everything was calm and no damage had
2 As a result, I think that the evidence will
3 show that all the men taking part in the operations
4 were carrying orders, complied with such orders, and
5 that they in no way had some personal pursuit in mind.
6 Neither did they want to settle any hostility they may
7 have had towards individual single Muslim neighbours.
8 All the Croats taking part in the operation
9 can be held and must be held responsible for it.
10 Evidence will show that the six accused tried
11 here today took part in the offensive, in a direct
12 fashion with weapons in their hands, or else,
13 alternatively, that they aided and abetted in a very
14 active way, and they also provided logistical support
15 to such operations.
16 We shall prove beyond any reasonable doubt
17 that the six accused back in those days were involved
18 in the HVO forces, had sympathy for nationalistic
19 causes, were subjected to Croat and HVO authority, and
20 even that some of them were fanatics, or behaved in a
21 fanatic way.
22 It is obvious that if you were in the HVO
23 forces, if you were dedicated to a nationalistic cause,
24 that means that you could not remain passive once the
25 village in which you lived was prey to, or was going to
1undergo such an operation.
2 There was the need for local support,
3 according to military doctrine. The military doctrine
4 made it necessary for military forces penetrating into
5 the village be clearly informed of their targets, that
6 the Muslim houses that looked like Croat houses be
7 shown to them, that the Croat houses to be protected be
8 shown to them, as well.
9 It is unthinkable that an operation of such
10 scale be conducted by military forces that would be
11 alien to the area, to the village. Military logic and
12 doctrine make it necessary for Croats residing in
13 Ahmici to be part of those forces which launched the
14 attack against the village.
15 And the community rationale or doctrine also
16 makes it necessary for the Croats living in Ahmici to
17 be associated with the operation. It is unthinkable
18 that the Croat families or Croat interests in Ahmici
19 would be jeopardised, would be imperilled by such an
21 It was therefore necessary, to the extent
22 possible, that the Croat families be evacuated on the
23 eve of the operation, and this is precisely what
24 happened. And the evidence will show that. And this
25 is another indicator of the involvement of the Croats
1from Ahmici, and more especially from the six accused
2 tried here today.
3 The evidence will also show that five out of
4 the six accused committed specific crimes during that
5 day. We shall adduce evidence through numerous
6 converging and corroborating testimony. We will show
7 that Zoran and Mirjan Kupreskic are responsible for the
8 destruction of the family of Sakib Ahmic, their closest
9 Muslim neighbours; their father, Naser; the wife,
10 Zehrudina, and their two children Elvis and Sejad.
11 Sakib Ahmic was wounded but survived the attack and he
12 will be here to testify.
13 The credibility of this major witness, that
14 is Sakib Ahmic, will be established through other
15 testimony, but also through crime scene investigation
16 carried out in the ruins of the houses of his family.
17 We will show that Vlatko Kupreskic is also
18 responsible for the death of Fata Pezer for the
19 wounding of Dzenana Pezer, that many witnesses will say
20 that they saw him in the peak of the offensive armed
21 with a weapon close to the house. And witnesses will
22 say he fired with that weapon, which leaves no doubt as
23 to his guilt.
24 And we will also show that Vlado Santic and
25 Drago Josipovic are responsible for the death of
1Musafer Puscul and for the destruction of his house.
2 They seem to be irrefutable witnesses, even though the
3 Defence did not seem to agree with this, this morning;
4 but this will be established through witnesses in front
5 of you, Your Honours.
6 I shall come to an end by mentioning very
7 briefly the order in which witnesses will be called, in
8 order to give you further information on this. We
9 wanted to call witnesses according to some logical
11 We first will deal with the circumstances of
12 the attack with Dragan Papic's participation in the
13 planning and the execution of the attack.
14 At a further stage we shall turn to specific
15 crimes relating to the Pezer family, to the Ahmic
16 family and to the Puscul family, and will look into the
17 their own participation in the attack, but also in the
18 acts of Zoran and Mirjan Kupreskic, to start with, and
19 Vlatko, following with Drago Josipovic and finish with
20 Vladimir Santic.
21 We will try to adhere to this logical order
22 of appearance, but I do beg you to apologise for any
23 possible trouble that may, or difficulty that may crop
24 up later and cause this order to be changed. But as
25 much as we can we shall stick to this logical order of
1appearance. Thank you very much for your attention.
2 JUDGE CASSESE: Thank you very much,
3 Mr. Prosecutor. It is a quarter to five, it is
4 probably pointless to have the first witness, after all
5 it will take more than 15 minutes.
6 MR. TERRIER: We were going to call Colonel
7 Watters, who was the deputy of Colonel Stewart at the
8 time. Colonel Stewart was the commander of the BritBat
9 in Vitez, and I do fear that his testimony, the
10 examination-in-chief, but especially the
11 cross-examination might take more than 15 minutes. We
12 are faced with a problem, though. Colonel Watters told
13 us, and he is still a member of the British Army, and
14 he must be back in Great Britain at the latest by
15 tomorrow, end of tomorrow morning.
16 I was probably too long in my opening
17 statement, I'm sorry for that; but exceptionally maybe
18 could we extend the hearing by half an hour and we
19 could begin the examination-in-chief and continue
20 tomorrow morning? I fear that we might not have enough
21 time tomorrow morning. We might, if we start today, we
22 might have more time.
23 JUDGE CASSESE: Well, this will be an
24 exception, but we agree to work until 5.30. So, you
25 may call your first witness.
1Which are the witnesses you intend to call
2 tomorrow and the day after tomorrow? Could we follow
3 the order that you gave us in your motion of the 3rd of
5 MR. TERRIER: Yes, but with one exception,
6 Mr. President; some witnesses have to go back to Bosnia
7 quite rapidly, so, I was hoping to be able to -- we
8 have Mr. Akhavan, who is a member of the office of the
9 Prosecutor, and we could postpone his testimony to
10 enable the Bosnian witnesses to be heard before him.
11 JUDGE CASSESE: That's fine.
12 MR. PAVKOVIC: The Defence would request, in
13 order to prepare for the cross-examination, to be given
14 at least a minimum of 48 hours to be informed, 48 hours
15 ahead of the arrival of the witness, who the witness
16 will be.
17 JUDGE CASSESE: Yes, I think that's quite
18 sensible. Can I ask the Prosecution whether they are
19 prepared to give the advance notice, 48 hours? I think
20 it's quite proper that they should know the list of
21 witnesses the Prosecution is going, are going to call;
22 are you in a position to do so?
23 MR. TERRIER: That's fine, in principle, no
24 objection in principle. I do understand the reason why
25 Defence counsel have formulated such a request, which
1seems to be quite legitimate. But we sometimes are
2 faced with practical problems, and sometimes they are
3 such that we can't really do anything else, and
4 sometimes the advance notice of 48 hours might not be
5 an accurate one.
6 So, if we make this commitment, please do not
7 take offence if we have to change things at the last
8 minute. But in principle there is no objection to this
9 advance notice. Of course, with the proviso that we
10 have a counterpart, the coordinating counsel could then
11 pass on the information to the other Defence counsel.
12 JUDGE CASSESE: That's fine, but this means
13 that this afternoon, tonight you're going to pass on
14 this to the Defence.
15 MR. TERRIER: Yes, tonight we shall submit
16 the list of the next witnesses to the Defence, together
17 with the protective measures requested, that's no
19 JUDGE CASSESE: Yes, I would like, you
20 should provide to the Defence the list of the witnesses
21 you intend to call until Friday, roughly speaking, that
22 would be fine for the Defence to have an idea of what
23 is going to happen over the week.
24 MR. TERRIER: That will be done,
25 Mr. President.
1JUDGE CASSESE: Good afternoon, Mr. Watters.
2 May I ask you to make the solemn declaration?
3 WITNESS: BRYAN SHAUN CHARLES WATTERS
4 THE WITNESS: I solemnly declare that I will
5 speak the truth, the whole truth and nothing but the
7 JUDGE CASSESE: You may be seated.
8 Examined by Mr. Moskowitz:
9 Q. Good afternoon, Colonel Watters.
10 A. Good afternoon.
11 Q. Could you start, Colonel, by telling us what
12 you do for a living?
13 A. I'm a Lieutenant Colonel in the British Army
14 and I'm currently commanding the First Battalion of the
15 Cheshire Regiment.
16 Q. Could you briefly give us a summary of your
17 experience in the British military, if you would?
18 A. I was commissioned into regiment 25 years ago
19 this month from our military academy. And to date I've
20 served in commands in staff posts in my regiment and in
21 the wider British Army.
22 In command appointments as a platoon
23 commander, company commander and now battalion
24 commander, I've commanded soldiers in Northern Ireland,
25 the former Rhodesia, Bosnia and in other parts of the
2 As a staff officer, I was a staff officer in
3 an armoured brigade in NATO, I was a staff officer in
4 Northern Ireland and I was a staff officer at our
5 infantry school.
6 Q. Now, you mentioned that you served in Bosnia.
7 Could you give us a time frame for that service?
8 A. I was recalled to my battalion to take up the
9 post of second in command in late January '93. I
10 arrived in Bosnia in early February, and I took up the
11 appointment of second in command from about the 6th of
12 February to about the 16th of May in Bosnia.
13 Q. You say second in command, who was in command
14 at that time?
15 A. The commanding officer was Lieutenant Colonel
17 Q. Could you give us an idea, if you would, what
18 the duties of a second command is?
19 A. You're the deputy commander of the unit at
20 that point, the one Cheshire group named as BritBat,
21 part of the United Nations UNPROFOR force. My role was
22 to shadow and mirror the commanding officer, to replace
23 him in the event that he became a casualty.
24 And my routine duties were to control the
25 operational and information branches within the
1headquarters and to act as the de facto Chief of Staff.
2 Q. Could you describe, if you would, your
3 general area of operation in Bosnia during that time
4 period in early 1993?
5 A. Yes, we had an area of responsibility. In
6 the north was Tuzla. In fact, I'll explain what the
7 size of our force was, then I can superimpose that on
8 our area of responsibility.
9 We were a battalion group of three infantry
10 companies; a heavy weapons company, a reconnaissance
11 company provided from a cavalry regiment; and a
12 reconnaissance platoon of our own; and a battalion
13 headquarters and echelon, the echelon being the
14 logistics support.
15 One company was based in Tuzla when I arrived
16 in February. A company and the reconnaissance squadron
17 were based in Vitez, and a company was based in Gornji
18 Vakuf. And that essentially encompassed our area.
19 Q. Thank you.
20 MR. MOSKOWITZ: I'm going to ask for the
21 assistance from the usher at this point, if I might.
22 We have two maps over there on the wall if we could
23 have them set up on the easel to help illustrate the
24 additional testimony coming next.
25 Can we have the first map marked as an
2 JUDGE MAY: Are we going to get a copy of
4 MR. MOSKOWITZ: Yes, Your Honour, we have
5 copies prepared.
6 THE REGISTRAR: The first map will be
7 Prosecution Exhibit number 5.
8 MR. MOSKOWITZ:
9 Q. If you will look at the exhibit marked number
10 5, and if would you, step up to that exhibit, there's a
11 microphone there. If you would, would you describe
12 what that map shows?
13 A. The map shows the former Yugoslavia. And the
14 highlighted square --
15 Q. Yes, if you would.
16 A. That's essentially the centre of our area of
17 operations based on Vitez where our battalion
18 headquarters and two manoeuvre units were, and the
19 towns of Zenica, Travnik, Turbe, Busovaca, which were
20 areas that we operated in and concentrated on from the
21 16th of April until we left on the -- in the middle of
23 Q. Now, that yellow square, does that define
24 your entire area of operation during that time period,
25 or is it within your area of operations which is larger
2 A. It is within our area of responsibility. Our
3 area of responsibility was considerably larger than
5 Q. Would it be possible with perhaps your finger
6 to give a general indication of your entire area of
7 operation outside of that square?
8 A. It's a little difficult without marking on
9 the position of the Serbs at the time. But in very
10 general terms, it went up through Zenica, Zepce, Maglaj
11 at parts of Doboj and up to Tuzla.
12 Q. Thank you. Where was your headquarters
13 during that time period?
14 A. In the school just outside the town of
16 Q. If you would remove that exhibit and look at
17 the one behind it, and if we could have that exhibit
18 marked, as well.
19 THE REGISTRAR: Prosecutor's Exhibit number
21 Q. That is now marked Exhibit number 6. Could
22 you make a correlation between the square on exhibit
23 number 5 and the map now designated Exhibit number 6?
24 A. Yes, I can.
25 Q. Please do so.
1A. You have the Lazva Valley, the town of Vitez
2 in the centre, and the main Vitez road that looped
3 around to Zenica and the mountain road to Zenica and
4 the road going north-west out to Vitez past our
5 headquarters, which is here at Bila, and on up to
6 Travnik. The map is familiar to me, this is exactly
7 the scale of map we used when we were deployed there.
8 Q. You mentioned the Lazva Valley; would you
9 describe what you mean by the Lazva Valley?
10 A. The valley through which the river Lazva
11 flows, in our terms, Vitez was the centre of it. And
12 the main sort of road that runs diagonally across the
13 map up to Travnik and down around to the Zenica road.
14 It was an area that became extremely well-known after
15 the 16th of April. I knew it quite well up till then,
16 although, other than liaising with the military
17 commander in Vitez and the regional commander, whose
18 headquarters was also in Vitez, Colonel Blaskic, I had
19 no particular reason to know the hills around.
20 Q. Now, you mentioned a road going through the
21 Lasva Valley from Vitez to Zenica. Actually, I think
22 you mentioned two roads.
23 A. Yeah. One we called the road to the dual
24 carriageway and the other one we called the mountain
25 road which went directly from Dubravica, at the
1junction just outside Vitez, up over the hills into
2 Zenica, and running around the valley floor, along the
3 Lasva Valley, until it joined at the dual carriageway
4 junction, just where I'm pointing now (indicating), and
5 the faster road there up to Zenica. Which road we took
6 depended on the military situation and the weather.
7 Q. You mentioned that road that goes along the
8 Lasva Valley; not the mountain road, the other road.
9 Did that road also go through the town of Ahmici?
10 A. I always understood that Ahmici was north of
11 the road.
12 Q. So it skirted along the edge of Ahmici?
13 A. Yeah, and then went sort of further up into
14 the hills on minor roads.
15 Q. Did you often drive that route from Vitez
16 along the Lasva Valley road past Ahmici?
17 A. Innumerable times.
18 Q. Approximately how many kilometres is it from
19 the centre of Vitez to the area of -- the Ahmici area,
20 along that road?
21 A. Approximately four kilometres.
22 Q. Four kilometres? Yes. Now, you also
23 mentioned Blaskic having a headquarters in Vitez.
24 A. Yeah.
25 Q. Who is Blaskic?
1A. Colonel Blaskic was the HVO regional
2 commander for Central Bosnia reporting to Commander
4 Q. Just to get our terms straight. What is the
6 A. The HVO was the military army of the Croat
7 people of Central Bosnia, of Bosnia.
8 Q. Could you tell us where, if you recall, the
9 HVO and Colonel Blaskic had its headquarters in Vitez,
10 what building?
11 A. In the Hotel Vitez, in the middle of the town
12 along the main road on the right as we were transiting
13 through from our school.
14 Q. Now, if you could, I would like you to look
15 at the map on the easel behind the easel in front.
16 It's a bit awkward, but perhaps the usher could assist
17 in allowing you to do that.
18 A. The photograph?
19 Q. Yes, the one behind. The one behind the
20 easel. The big one, yeah.
21 THE INTERPRETER: Would you ask the witness
22 to speak into the microphone, please?
23 MR. MOSKOWITZ: We will actually need the
24 easel in a minute. It's a little awkward, I'm sorry,
25 but ...
1We would like to have this exhibit marked as
3 THE REGISTRAR: This is Exhibit, Prosecution
4 Exhibit number 1.
5 MR. MOSKOWITZ:
6 Q. Now, Colonel Watters, this may be a little
7 confusing because I think things are flipped around a
8 little bit on this map --
9 A. I can understand.
10 Q. -- so take your time, but if you could give
11 us an idea of what that shows?
12 A. It's an air photograph taken at an oblique
13 angle of the area we have just been talking about with
14 Vitez in the centre and then moving what is actually, I
15 think, south, but going up the map.
16 Q. Yes.
17 A. The sort of -- the road up to Kaonik,
18 Busovaca, looping round to the Zenica road, and then
19 the road either through Vitez or the Vitez bypass
20 leading down to where our school was at Bila, and the
21 village of Kruscica up here, which I know well, the
22 village of Santici and Ahmici, which I know well, and
23 the general topography of the area.
24 Q. Would you again show the Court, if you would,
25 the road from Vitez along the outskirts of Ahmici that
1followed the valley, not the mountain road?
2 A. Right. From the centre of Vitez, which is
3 here, you went up here through what was actually a sort
4 of Croat-living area, over the bridge, onto the main
5 road, which ran through the valley, you turn right and
6 the road followed the valley until you reached this
7 junction here, which was the road that led in towards
8 Ahmici, and the road continued along the bottom end of
9 Ahmici village until it made its way past the Busovaca
10 turning, off to the dual carriageway leading to Zenica.
11 Q. Again, from the centre of Vitez to Ahmici is
12 about four kilometres?
13 A. That's about four kilometres, yeah.
14 Q. Now, you also mentioned earlier about the
15 Hotel Vitez where the headquarters for the HVO was
16 located. Was that located in the centre of Vitez or in
17 the outskirts of Vitez?
18 A. No, it's in the centre of Vitez. It's a
19 little difficult, five years ago, on this scale, but I
20 think that is probably as near as --
21 Q. That was a multi-storey building, a fairly
22 large building for that town?
23 A. The entrance was actually along the road
24 here, sort of pointing in this way, and the main bulk
25 of the hotel went back.
1Q. Now, did Vitez have certain well-defined
2 ethnic areas at the time you were in Vitez?
3 A. Yes, it did. I mean, they weren't
4 necessarily manifest to us initially on our tour as it
5 wasn't an area we focused on, but you had a sort of --
6 coming from this direction, from the north, you had a
7 sort of mixed all-Croat area leading to a Muslim area
8 here centred on a mosque, then up past the municipal
9 buildings, the town hall I think was just about here
10 where the mayor resided, and then this area here was
11 Croat, north of the sort of Hotel Vitez, which was
12 almost on sort of the interface between the Muslim
13 sector of the town and the Croat sector of the town,
14 and then with Croat houses here and then quite sort of
15 well-to-do houses along this road here leading out of
16 the village.
17 Q. We are going to hand you a marker now, the
18 usher will hand you a marker. If you could outline for
19 us on that map the separate areas you've just described
20 indicating the different ethnic areas in Vitez?
21 A. If I drew lines there (indicating) and about
22 there, it's a bit rough, but that would show that area
23 being Croat, this area being either mixed or largely
24 Croat, and this area here being largely Muslim.
25 Q. So the area, like a sandwich, in between
1those two other areas would be largely Muslim --
2 A. Yeah.
3 Q. -- in Vitez?
4 A. Yes.
5 Q. Now, what if you followed the road out of
6 Vitez going towards Ahmici around that curve, right by
7 that label saying "Vitez"? Would that area be Croat or
9 A. That would be Croat. The Croat area extended
10 this way -- I mean, again, I wouldn't be able to point
11 and say what house was what, but by and large, it was a
12 wealthier area of the town and largely Croat.
13 Q. Following that road on to the T-junction, if
14 you would, what was that area called, if you remember?
15 A. I can't remember, I'm afraid.
16 Q. Do you recall the Dubravica school, by any
18 A. Yeah, that is about here, actually. That
19 will be the Dubravica junction here, and the school was
20 just north of the road leading up through Dubravica.
21 It could actually be this -- it's this area here. It
22 could actually be there (indicating). Again, on this
23 scale, it's a bit difficult. Yes, again, that's the
24 mountain road that leads to Zenica. So it would be
25 this junction here, and the school was just north of
2 Q. I see. And that was simply an elementary
3 school, to the best of your knowledge?
4 A. I really couldn't answer that. It was just
5 the school. There weren't very many children at school
6 during this period.
7 Q. Then continuing on up that road, you come
8 into the area known as Santici and Ahmici; is that
10 A. Yes, it is, sir.
11 Q. Were you familiar with a place known as the
13 A. Yes, I was.
14 Q. That map is perhaps a little small, but take
15 a look and see if you might be able to find it.
16 A. It's roughly in this area here (indicating).
17 It could be there, it could be there. It's certainly
18 that sort of area, to the best of my knowledge and
20 MR. MOSKOWITZ: Finally, having to impose on
21 the usher one more time, we would like to do the
22 blow-up of Ahmici and have the Colonel look at that for
23 us a little bit. We would also like to mark this
24 blow-up that will be put on the easel as our next
1THE REGISTRAR: This exhibit has been marked
2 as Prosecution Exhibit number 2.
3 MR. MOSKOWITZ:
4 Q. Now, Colonel Watters, could you identify that
5 for us, please?
6 A. Yeah. It's a blow-up of the previous air
7 photograph concentrating on the junction off the main
8 Lasva Valley road where it turned left into Ahmici.
9 The cemetery was an obvious feature, Santici, and we
10 had -- a United Nations Dutch battalion transport base
11 was located somewhere around here (indicating).
12 MR. MOSKOWITZ: I see. Thank you, Colonel
13 Watters. You may take a seat.
14 At this time, we would like to offer into
15 evidence those four exhibits.
16 *** PLEASE SLOW DOWN FOR THE INTERPRETERS ***
17 JUDGE CASSESE: You are being asked by the
18 interpreters to slow down. I just saw it on the
20 MR. MOSKOWITZ: I'm sorry. At this time, I
21 would like to show Colonel Watters three photographic
22 exhibits and have them identified.
23 THE REGISTRAR: Prosecution Exhibit 7, 8,
24 and 9.
25 MR. MOSKOWITZ: If you might place that on
1the ELMO? Thank you.
2 Q. Now, Colonel Watters, could you tell us what
3 this exhibit shows?
4 A. An overhead photograph of Vitez.
5 Q. Sort of a detail of downtown Vitez similar to
6 what you showed us on the Lasva River Valley one?
7 A. Yes.
8 Q. It may be difficult this many years later,
9 but is it possible for you to pick out the headquarters
10 of the HVO, the hotel?
11 A. Yeah. I think it's this building here, it
12 was the HVO regional headquarters. The town
13 headquarters was in a cinema, and that was further back
14 here somewhere, I think.
15 Q. I think we have a pointer that you can use.
16 That's good.
17 A. This area here (indicating), to the best of
18 my memory, is the Hotel Vitez, with the entrance off
19 the main road here, and that was the regional
20 headquarters of HVO and Colonel Blaskic.
21 Q. I see there's a road, sort of a long road
22 that goes from left to right on the map. Would that be
23 the main road that ultimately goes up to Ahmici?
24 A. Yes, it is.
25 Q. Four kilometres away?
2 MR. MOSKOWITZ: I would like to show then the
3 next photograph, as soon as the delivery has been made.
4 Q. Could you identify that for us, Colonel
6 A. It's the side of the Hotel Vitez. The front
7 of it is somewhere around here (indicating).
8 Q. And that would be where the headquarters of
9 the HVO was located?
10 A. Yes, it was, sir. I visited them there.
11 Q. This is essentially a close-up now of the
12 actual building that was portrayed in that overhead
13 aerial map we just looked at.
14 A. (No audible answer)
15 Q. And then, finally, the third picture? Again,
16 what does that show?
17 A. That's the Hotel Vitez from the main road in
19 Q. And that road, directly in front of it, is
20 again, that main road that leads up to Ahmici and so
22 A. Yes, sir.
23 Q. Along the Lasva Valley?
24 A. Yes, sir.
25 Q. Now, could you tell us, Colonel Watters, when
1you first arrived in early 1993 in Central Bosnia, what
2 was your mission and what was the mission of the
3 British battalion at that time?
4 A. Our mission was to facilitate the
5 distribution of humanitarian aid in our area of
6 responsibility in order to prevent starvation and the
7 degradation of the population of Bosnia-Herzegovina.
8 And that's as best as I can remember it.
9 Q. During the course of your stay in Central
10 Bosnia, did the thrust of that mission change somewhat?
11 A. Yes, it did. The essence of the mission
12 remained unchanged and we distilled it to be the
13 preservation of life. The thrust of the mission, from
14 delivering humanitarian aid, as the military situation
15 in Central Bosnia degenerated, that became more and
16 more difficult and increasingly less relevant as the
17 means of saving life was best achieved by interdicting
18 and, where we could, preventing the fighting between
19 the opposing forces, and by establishing cease-fires,
20 monitoring cease-fires, and later establishing a
21 cease-fire-monitoring mission based on the ECMM. We
22 felt that we were achieving the implicit essence of our
23 mission to save life because we no longer really could
24 effectively distribute aid and, as I said, the
25 distribution of aid was less and less relevant.
1Q. Is there a particular day that comes to mind
2 that sticks in your memory as to perhaps when your
3 mission changed somewhat from merely delivering aid and
4 assisting in the delivery of aid to actually saving
5 lives in a more direct way?
6 A. There were a series of situations that began
7 to change the focus of our mission. Facilitating the
8 movement of refugees from further Serb -- the fallout
9 from further Serb attacks and the consolidation of Serb
10 positions around Banja Luka caused us to spend a lot of
11 time helping refugees through Turbe. Then the Serb
12 positions in the pockets in eastern Bosnia, Srbrenica,
13 our focus was heavily in Srbrenica in early April, and
14 then within the centre of the area of responsibility,
15 in the Lasva Valley, that changed abruptly on the
16 morning of the 16th of April, '93.
17 Q. Do you recall where you were early that
18 morning, on the 16th of April?
19 A. I was in the headquarters in Bila school.
20 The commanding officer was in Zenica investigating the
21 kidnapping of a man called Totic who was the HVO police
22 commander in Zenica, and he was overnighting in Zenica,
23 sorting out how we could assist in finding Mr. Totic,
24 as I was actually commanding the battalion at that time
25 as he was at a radio communication, and I was in from
1about 3.00 in the morning, I was in the operation
2 centre, as some strange things were happening. We were
3 trying to understand what was going on.
4 Q. You mention strange things were happening
5 early in the morning on the 16th as you were the
6 operations officer at your headquarters in Vitez. What
7 sort of strange things did you begin to hear that
9 A. The first thing that happened was a group of
10 reporters came into the school asking for safety,
11 basically. They had been staying in a sort of
12 bed-and-breakfast accommodation. I think it's on the
13 Vitez ring road, there was a garage, best known to us
14 because there was a bear in a cage outside it, which we
15 later sort of liberated, and these people reported that
16 the door had been kicked into their room and masked men
17 had ordered them to leave or they'd be killed, and they
18 left all their belongings, got in their car and driven
19 down to the school, and they were in a total state of
20 shock. There had been an increase in criminal activity
21 in the Lasva Valley, but that was quite unusual.
22 Q. You mention the ring road. This is a road
23 that goes essentially or bypasses Vitez and goes around
25 A. Yes, that's correct, sir.
1Q. I take it these reporters were pretty scared
2 when you saw them.
3 A. They were petrified.
4 Q. What else happened early that morning?
5 A. We began to receive reports of fighting and
6 could hear very -- by about 6.00 in the morning, we
7 could hear distant sounds of something like mortars or
8 artillery in the direction of Vitez, and our echelon,
9 which was closer to Vitez than we were, was reporting a
10 considerable amount of heavy fire in and around the
11 Vitez area and small arms fire all the way up the Lasva
13 Q. How were you getting these reports?
14 A. From the static positions of our base leading
15 in towards Vitez, at the junction of the main road into
16 Vitez and the ring road, we had our echelon base and
17 our petroleum point, and they were reporting it. And
18 at about 6.00, I sent out some reconnaissance patrols
19 up the Lasva Valley to report what exactly was
21 Q. And when you say you sent out reconnaissance
22 patrols, what do you mean?
23 A. I mean pairs of Scimitar light tanks, or we
24 call them CVRT, and pairs of Warriors to move up the
25 road and report back what they see, not to actually
1interdict what they see, because they didn't have the
2 combat power to deal with it, but just to report so we
3 could get a picture of what was going on because it was
4 very confusing.
5 Q. You mentioned Simtars as light tanks.
6 Perhaps you might explain a little bit about what they
7 are because we will be hearing about them again in the
9 A. We have a generic vehicle within the British
10 army called CVRT, and it has a number of
11 specific-to-task vehicles, one of them is a
12 reconnaissance vehicle, which is a two-man turret with
13 a driver, a three-man crew all together, and it mounts
14 a 30-millimetre rod-and-canon machine gun and it is our
15 primary reconnaissance vehicle in the British army.
16 Q. It is basically an armoured, tracked vehicle
17 with a gun on it?
18 A. It's a lightly armoured track vehicle. It
19 can deal with small arms but can't take anti-tank fire.
20 Q. You have, I think, another kind of vehicle at
21 your disposal, a heavier kind of vehicle. Would you
22 describe that for us, please?
23 A. Yeah. We were an armoured infantry battalion
24 and it's based on 53 Warrior fighting vehicles. The
25 Warrior is a substantially larger vehicle, it is a
1personnel carrier that carries eight fighting soldiers
2 in the rear, a turret crew of two and a driver, and it
3 has a higher degree of protection but is a much heavier
4 vehicle and therefore not as --
5 THE INTERPRETER: Could we ask the witness to
6 slow down, please?
7 THE WITNESS: Sorry. It is not as
8 manoeuvrable as the CVRT, as the Scimitar. We had 53 of
9 those, and it was on those that our capability was
11 Q. But on the morning of the 16th, for purposes
12 of reconnaissance, you sent out Simtars rather than
14 A. To be honest, sir, I can't remember. I think
15 I sent out both. We had the reconnaissance squadron
16 and "A" Company in Vitez at the time, and I would
17 probably utilise both types of vehicle.
18 Q. When you say you sent them out throughout the
19 Lasva Valley, could you be a little more specific on
20 that, if you might? Where in the Lasva Valley?
21 A. I'd probably have to refer to our radio logs
22 to be specific. Essentially, I just told them to go
23 towards the sound of artillery and mortar fire and see
24 if they could establish what on earth was going on.
25 Q. Did you get reports back after a while from
1these reconnaissance patrols?
2 A. Yeah, for a couple of hours, I got reports of
3 heavy fighting within Vitez and the hills above it,
4 houses burning down the length of the Lasva Valley
5 around Santici, Ahmici, and all the way up. The
6 checkpoint that was normally at Dubravica was deserted
7 as was the checkpoint at the bottom of the road where
8 it joins the Zenica flyover, and they could hear a lot
9 of small arms fire, and there was a report of an
10 infantry assault in Vitez, a Croat infantry assault
11 onto the sports centre, and it was still quite
12 difficult from the radio reports to form a prognosis of
13 what was happening because it was out of our area of
14 familiarity. There had not been large-scale fighting
15 in this area during our period, and I can't remember
16 the exact time, but about 8.00, I took a patrol out
17 myself just to try and get a feel for what was going
19 MR. MOSKOWITZ: This may be a good time to
20 stop, Your Honours.
21 JUDGE CASSESE: Thank you. Before
22 adjourning, may I just draw the attention of Defence
23 counsel to one of our guidelines? It's C, number 3,
24 where we have stated: "Where possible, the Defence may
25 consider appointing one of them to cross-examine a
2 I wonder whether they may consider this
3 particular point tomorrow when cross-examining our
5 Before adjourning, let me also again ask the
6 registrar to make sure that tomorrow at 9.30 sharp all
7 the accused are here in court and also the witness
8 should be here so that we can start right away.
9 We will adjourn now until tomorrow at 9.30
11 --- Whereupon proceedings adjourned at
12 5.30 p.m., to be reconvened on Tuesday,
13 the 18th day of August, 1998, at
14 9.30 a.m.