1 Friday, 18th July 1997
2 (10.00 am)
3 Witness D ( continued)
4 Cross-examined by Ms. Residovic
5 JUDGE KARIBI WHYTE: Good morning, ladies and gentlemen.
6 Can we have the appearances now?
7 MS. McHENRY: For the Prosecution I am Teresa McHenry, here
8 with co-counsel Mr. Giuliano Turone and our case manager,
9 Ms. Elles van Dusschoten. Thank you.
10 JUDGE KARIBI WHYTE: The Defence?
11 MS. RESIDOVIC (in interpretation): Good morning, your
12 Honour. I am Edina Residovic, Defence Counsel for
13 Mr. Zejnil Delalic. Defending Mr. Delalic with me is
14 colleague Eugene O'Sullivan, Professor from Canada.
15 MR. OLUJIC (in interpretation): Good morning, your
16 Honours. I am Zeljko Olujic, attorney from Croatia,
17 Defence Counsel for Mr. Zdravko Mucic. Co-defending is
18 my colleague, Mr. Michael Greaves, attorney from Great
19 Britain and Northern Ireland.
20 MR. KARABDIC (in interpretation): Good morning, your
21 Honours, I am Salih Karabdic, attorney from Sarajevo,
22 Defence Counsel for Mr. Hazim Delic, with co-counsel,
23 Thomas Moran, attorney from Houston, Texas.
24 MR. ACKERMAN: Good morning, your Honours. On behalf of
25 the defendant Esad Landzo we have John Ackerman and
1 Cynthia McMurrey. Thank you.
2 JUDGE KARIBI WHYTE: Ms. Residovic, before you start, I am
3 sorry I cut you short in the middle of your sentence
4 yesterday when we were breaking. So I apologise for
5 that: we are in open session now. What is your
6 suggestion? We remain in open session?
7 MS. RESIDOVIC (in interpretation): Good morning, your
8 Honours. Once again I think it is simpler for all of
9 us if we go into private session.
10 JUDGE KARIBI WHYTE: Thank you very much. Let's go into
11 private session.
12 (In closed session)
13 Pages 5333 to 5363 redact in closed session
23 (In open session).
24 MR. MORAN: I believe we are in public session now, judge.
25 The first thing I would like to ask you about is the
1 competency of the Commission, the jurisdiction of the
2 Commission. As I understand it, what the job of the
3 Commission was to do was to interview the people that
4 had been arrested or detained from places like Bradina,
5 Donje Selo and who were suspected of committing crimes,
6 to place them into some sort of categories and decide
7 whether or not these people should be released or their
8 incarceration continue. Is that a fair assessment of
9 what the competency of your Commission was?
10 A. Not quite correctly, because you said that the
11 Commission decided. A good portion of what you said in
12 your question is correct, but we've had quite a bit of
13 discussion about that here. What was then done was
14 open. It wasn't decided who had the authority to
15 decide on the release of prisoners. The Commission
16 just proposed the classification of prisoners into
18 Q. And so what you did was you prepared reports on each
19 prisoner and forwarded them to, what, the HVO
20 headquarters for further action? Is that correct?
21 A. That is what was said yesterday. We said that no
22 report was made for each individual prisoner. We made
23 a collective report containing incriminations.
24 Q. Okay. So what you're saying is that you prepared a
25 report showing evidence incriminating people who were
1 detained, evidence that showed they had committed
2 crimes, but you didn't prepare a report showing who had
3 not committed crimes, or where there was no evidence
4 that they committed crimes. Is that what you just
5 said, sir? Did I understand that correctly?
6 A. Yes. There was no report for those for whom nothing was
7 established. The very classification into categories
8 and the formation of a list could be considered a
10 Q. So if someone were incarcerated in the camp and they
11 were interviewed by your Commission and your Commission,
12 based on whatever evidence you had, determined that they
13 were just as pure as the driven snow, you didn't do
14 anything to get them released?
15 A. The persons for whom nothing was found, after
16 interviewing them, they were put into the last
17 categories and the Commission through Zovko that we have
18 mentioned, and Mr. Mucic was there, too, I think Zovko
19 communicated with him over these things. Somebody
20 needed to take a decision, to look at this paper, and to
21 pass a decision and to issue papers.
22 Q. Okay. Let me back up a couple of steps; okay? There
23 were in round numbers about 200 people, 250 people
24 incarcerated in the prison at Celebici, right, in round
25 numbers, maybe more, maybe less. Is that a fair
2 A. I don't know. I cannot give an assessment.
3 Q. Okay. There were some number of people incarcerated in
4 the prison in Celebici; right?
5 A. Yes.
6 Q. And those people had been arrested by HVO, TO, maybe
7 MUP, some place other than at the prison; right?
8 A. I don't quite understand the question.
9 Q. Okay. The people that were -- the guards and the staff
10 at the prison weren't the people that arrested these
11 people that were incarcerated; is that correct? They
12 were arrested some place else?
13 A. Yes. We were talking about that yesterday. I don't
14 know, because I didn't participate in that, nor did
15 anybody say when and where and how many people had been
16 brought in from the area of combat operations or in
17 their vicinity, but I assume it must have been the units
18 in the field or MUP. What do I know who did it?
19 Q. Surely when you interviewed someone and other members of
20 the Commission questioned these detainees one of the
21 questions you asked was: "When were you arrested and
22 where?" Right? That would be a logical question,
23 wouldn't it?
24 A. Yes, it was a question, but you had asked me generally
25 who had arrested the people and detained them and
1 brought them to the camp.
2 Q. I'm just trying to get -- it wasn't anybody working at
3 the camp, was it? It wasn't you; it wasn't the members
4 of your commission; it wasn't the guards; it wasn't the
5 other people at the camp. Those were not the people
6 that arrested them; right? They were arrested some
7 place else by somebody else; right?
8 A. Yes.
9 Q. Okay. That's what I was trying to get at. Then they
10 were brought to prison, just like when a police officer
11 in The Hague arrests somebody for drunk driving. The
12 police officer takes them to a jail and he gives them to
13 a jailer; right? Same kind of thing; right?
14 A. Yes.
15 Q. Okay. That jailer doesn't conduct any kind of a
16 hearing to determine whether there was sufficient
17 evidence to arrest this person, does he?
18 A. Yes. That is the rule, but when these people were
19 brought in, who decided to bring them in or not I don't
21 Q. Okay. What I'm getting at is if, for instance, a
22 police officer in -- pick a city in the former
23 Yugoslavia -- Belgrade, arrests someone for whatever
24 reason this police officer arrests him and transports
25 this prisoner to a place where the prisoner is
1 incarcerated, all that that jailer does is just lock the
2 person up. He doesn't conduct a separate investigation
3 into the legality of that arrest, does he?
4 A. The person who carries out the arrest and detention is
5 obliged to report why a person was arrested, and if he
6 has any evidence, to commit the evidence as well.
7 Q. Yes, but he submits that to somebody other than a
8 jailer, doesn't he? He submits it to a judge or his
9 superiors in the Police Department, not the turnkey at
10 the jail; right?
11 A. In our specific case this could have been handed to the
12 management of the prison, if there was no commission.
13 Q. But there was a commission, wasn't there?
14 A. If the arrest occurs when the Commission was not there,
15 when it's not working, because the working hours were
16 from 8.00 to 5.00, 6.00.
17 Q. In fact, this Commission was a legally constituted
18 Commission that had the competency of determining facts
19 about whether people should be incarcerated; isn't that
20 correct? Your commission, that was your job?
21 A. I have already explained that.
22 Q. And then once the Commission gathered these facts, you
23 submitted it to somebody who would make the final
24 decision on whether or not these people should be
25 retained in custody or released; isn't that right?
1 A. Yes.
2 Q. And, in fact, when you found someone that was not guilty
3 or there was no evidence that he was guilty of anything,
4 you didn't let that person go, did you?
5 A. As far as I know, no-one in the Commission was
6 authorised to release anyone from prison.
7 Q. So if you interviewed or one of your colleagues on the
8 Commission interviewed detainee X and you looked at all
9 of the evidence that was available from all the sources
10 you could draw on, and there is absolutely no evidence
11 that detainee X had done anything or constituted any
12 danger to the state, you'd leave him in custody and
13 recommend to someone else that he would be released;
14 right? Is that a fair assessment?
15 A. I spoke yesterday about the case of Stanojevic and
16 another professor, about whom it was clearly established
17 there was no reason to hold them any more and we told
18 Mr. Mucic there was no grounds for arresting him. The
19 Commission found no evidence. There was no reason to
20 keep him and nevertheless they were still held in
22 Q. I thought that was because you said you didn't have the
23 authority to make the final decision; that someone else
24 made that? Isn't that what you said not ten minutes
1 A. Yes. Somebody else took the decision. Who? Mucic
2 said that it was the Commander Zejnil who had to decide
3 about the release of prisoners. Whom would he tell,
4 who would sign, how it would be done I don't know. He
5 would say, when the lists were made, that he would show
6 those lists. Whether he did carry them there or not I
7 don't know. I had no feed-back information. Whether
8 he spoke to Mr. Zovko or not I don't know.
9 Q. Okay. By the way, everybody that was detained in the
10 camp that you had any dealings with -- I notice you're
11 looking at the watch. I'll try and move this along for
12 you. As far as you know, everybody who was detained at
13 the camp was a citizen of the Republic of
14 Bosnia-Herzegovina, weren't they?
15 A. Yes. As far as I know, they were all citizens of
17 Q. Now, aside from interviewing these people that were
18 detained, did your Commission have any other competence
19 or any other jurisdiction as to the operations of the
20 camp? Were you in charge of food or conditions for the
21 prisoners or did your Commission have any say in that at
23 A. No.
24 Q. Well, remember in your statement, the statement you gave
25 in -- I believe it was May 24th, 1996, the first
1 statement, you were talking about Kelko (sic), the death
2 of Kelko? Remember that? Remember when you were
3 talking about that?
4 MS. McHENRY: Keljo, if it helps.
5 MR. MORAN: I'm sorry. Keljo.
6 A. I think that the investigator asked me: "What happened
7 to Keljo next?" I think I said I don't know but that
8 later when I had given you working in the Commission
9 I heard.
10 Q. So you do remember that incident; right? That was the
11 question I asked, whether you remembered it?
12 A. Yes.
13 Q. One of the things you said in your statement was:
14 "The Commission was not allowed to investigate
15 this incident. One member of the Commission asked
16 someone -- I don't know whom -- about more details about
17 this incident but was told that somebody else was taking
18 care of it".
19 Do you remember saying that in your written
21 A. I do.
22 Q. Well, if the competence of your Commission did not
23 include running the camp or the conditions in the camp
24 or overseeing the conditions in the camp, then why would
25 it be surprised or why would it be unusual for your
1 Commission not to be asked to investigate this?
2 A. It was quite logical for us to investigate such a
3 situation, such an incident.
4 Q. Well, I thought you told me that the jurisdiction of
5 your Commission was simply to look at evidence and
6 determine what categories various prisoners ought to be
7 placed in? Isn't that what you told me? Isn't that
8 what you told the judges?
9 JUDGE KARIBI WHYTE: Have you tried to delineate the
10 jurisdiction or the competence of the Commission.
11 MR. MORAN: Your Honour, I thought that I had asked him
13 JUDGE KARIBI WHYTE: There is no question directed at
14 defining the competence. You asked him what the scope
15 of what they could do with respect to prisoners who were
16 brought there but not the general competence of the
18 MR. MORAN: Okay. What was the competence of your
19 Commission? What was the jurisdiction of your
21 A. I said that, but if I had it in writing by whoever it
22 was who set up the Commission, it would be easier to
23 discuss it, but what I was told orally was what my task
24 was, and the other members of Commission, too, was to do
25 what we have been talking about all this time, and I see
1 no need for us to waste any more time about it.
2 Q. Okay. One of the other things you did as an analyst
3 was just general intelligence gathering; isn't that
5 A. These were information data collected from statements,
6 some reports from the field, if there were any, by
7 people who had arrested those persons, or any other
8 documents that may have been found later when checking
9 the statements and the information obtained in
10 communication with the detainees.
11 Q. Okay. So your Commission's jurisdiction did not
12 include the conditions in the camp -- or did it? Did it
13 include conditions in the camp, how the prisoners were
14 treated, did they get medical care? Did it or didn't
16 A. I think I've explained this several times to the best of
17 my knowledge.
18 Q. Then, sir, I still want to know if your jurisdiction did
19 not include anything about the operations of the camp,
20 why would it be surprising or shocking to anyone that
21 your Commission was not invited to investigate a death
22 in the camp?
23 A. I said that it would have been logical for each case of
24 a detainee suffering any kind of injuries, it would have
25 been logical for the investigating commission to
1 establish the facts, but this did not happen.
2 Q. Well, I thought that was outside your jurisdiction?
3 MS. McHENRY: Objection. Asked and answered.
4 MR. MORAN: Your Honour, he is saying that his jurisdiction
5 is one thing and it is not surprising that he not be
6 allowed to investigate outside his competence and
7 jurisdiction and I just want to get the two statements
8 -- see if he can make them work together.
9 JUDGE KARIBI WHYTE: I didn't understand him to have said
10 that. All he was saying is it was not in writing and
11 his discussions which he made has not enabled him to
12 know exactly his scope. I think that's what he said.
13 I think we will break here and you can continue when we
14 come back.
15 MR. MORAN: Thank you, your Honour.
16 JUDGE KARIBI WHYTE: We will come back at 12 o'clock.
17 (11.35 am)
18 (Short break)
20 JUDGE KARIBI WHYTE: Yes, you can continue.
21 MR. MORAN: May it please the court? I am going to mention
22 one name. I don't recall whether this is a name we
23 have been protecting or not. If we could go into
24 private session just long enough for me to say the
1 JUDGE KARIBI WHYTE: Let's go into private session.
2 (In closed session)
12 (In open session).
13 Q. Sir, that man I just named in private session, who was
14 his job during the war?
15 A. During the war I don't know what his job was, except for
16 what I heard. This was at the very beginning in the
17 Commission. I don't know about anything else.
18 Q. So he was a member of the Commission?
19 A. I guess. I never read anything to that effect. He --
20 in fact, some people even said that since there is no --
21 this person, we don't have the chief of the Commission.
22 Q. In fact, the report that you signed and you remember you
23 adopted by signing it after you found it in the HVO
24 archives, that says that he was the Chairman of the
25 Commission, but he was injured in a traffic accident.
1 That's the statement adopted, isn't it?
2 A. And that's what I said now, that in the Commission --
3 this was discussed in the Commission and then this is
4 what was also put in the report.
5 Q. Okay. Did you know, of course, that on at least one
6 occasion on his own he released 16 people from the
7 Celebici prison? You know that, don't you?
8 A. I wasn't there at that time.
9 Q. Okay. That's fine. That's fair enough. Sir, as
10 I recall on your direct examination, and it may have
11 been yesterday or it may have been Wednesday, and let me
12 make sure I recall it correctly, that you testified that
13 no-one was mistreated during their interrogations by the
14 Commission. Isn't that right?
15 A. I said that I never heard of such a case or seen it.
16 Q. So far as you know, no-one was ever mistreated during an
17 interrogation by a Commission?
18 A. Yes.
19 Q. And from the time you were appointed to be a member of
20 the Commission until the Commission ceased its
21 operations, you were there in the camp every minute
22 these interrogations were going on; right?
23 A. I was.
24 Q. And I also recall you testifying on direct, and this is
25 my recollection -- if I'm wrong, correct me; okay --
1 that on one occasion Hazim Delic brought a person in to
2 be interrogated and that person's hands were tied behind
3 his back and you told Mr. Delic that you didn't ever want
4 that to happen, that the person should -- if they were
5 tied up, they couldn't concentrate on what was going on
6 during the interrogation. Do you remember testifying
7 to that?
8 A. Yes. I spoke something in that sense and there were
9 some other Commission members, Stenek or somebody else,
10 who also conducted discussions.
11 Q. So it was made real clear to the people -- the guards at
12 the camp and the staff at the camp that the prisoners
13 were not to have their hands tied during the
14 interrogations; right?
15 A. Whether the guards were told, but Delic was told.
16 Whether Delic then passed it on to the guards, that I
17 don't know.
18 Q. But what I'm getting at is people didn't have their
19 hands tied during the interrogations, right, because the
20 Commission didn't want it that way; right?
21 A. What I said is that after that I never saw it again.
22 Q. Okay. The first time you saw it occurring, you put a
23 stop to it; right?
24 A. That was not the first time. I saw that I had seen it
25 outside and I was in a position to say it at that
1 time. There were others there, but I was in a position
2 to say this.
3 Q. I'm talking not about while the people are outside
4 waiting to be brought in but actually during the
5 interrogations themselves, while the Commission is
6 interrogating these prisoners, that the first time you
7 saw it, you put a stop to it; right?
8 A. Yes. That is correct. Yes.
9 Q. And the reason you did that was because you couldn't
10 interrogate them well if they were tied up; right?
11 A. Yes.
12 Q. So if somebody said that they were interrogated or
13 mistreated during an interrogation, or if their hands
14 were tied during an interrogation, either that didn't
15 happen or had to happen before you got there; right?
16 A. I did not see and in the ones that I did take part,
17 there was no mistreatment. I did not mistreat anybody
18 or something like that.
19 Q. Nobody is accusing you of mistreating anybody, sir.
20 What I'm asking you is if somebody said there was
21 mistreatment of prisoners or prisoners were interrogated
22 with their hands tied behind their back, that had to
23 have happened before you got that; right?
24 A. I don't know when this could happen. I don't know if
25 it would be at times when I would not watch. I did not
1 see everything. I only talked about things that
2 I saw. I cannot talk about other things.
3 Q. Okay, but you just said that -- I thought you just told
4 us a few minutes ago that the first time you saw people
5 being interrogated with their hands tied behind their
6 backs, you put a stop to it?
7 A. Yes. I reacted at that time.
8 Q. Okay. So what I'm trying to get at is if someone said
9 that prisoners were abused during interrogations or that
10 they were interrogated with their hands tied behind
11 their back, either that person is mistaken, not telling
12 the truth or it happened before you got to the camp.
13 That is correct; right?
14 MS. McHENRY: Objection. I think that's asked and answered
15 and he says that even after he was there, he did not see
16 every interrogation. I think that has been asked and
17 answered several times.
18 JUDGE KARIBI WHYTE: Actually if you counted how many times
19 you formulated that, this is your third time.
20 MR. MORAN: Yes, your Honour.
21 JUDGE KARIBI WHYTE: I don't see the point. He has been
22 answering it each time.
23 MR. MORAN: Sir, you testified on direct again on Bajram --
24 I presume it was Lesser Bajram because of the dates --
25 you went into the mess hall in the administration
1 building, and you saw Hazim Delic eating something and
2 he didn't invite you to join him; right? Do you
3 remember testifying about that?
4 A. That's not the way I said it.
5 Q. That was the long and the short of what you said,
6 though, wasn't it?
7 A. I wouldn't say so.
8 Q. Okay. What would you say in the Reader's Digest
9 version, a short version?
10 A. This was just an aside, a digression. I forget the
11 context in which I said that yesterday. I don't know
12 that I said that I found Mr. Hazim eating there. I said
13 that Hazim said that there was nothing there for me to
14 eat, but I did not say that this was a direct
15 communication between Hazim and me.
16 Q. Okay. So basically what Hazim could have meant is he
17 just didn't want to eat lunch with you; right?
18 A. I don't know what he wanted.
19 Q. Okay. There were HVO military police stationed at the
20 camp at Celebici, weren't there, while you were there?
21 A. Can you please repeat this question? Are you referring
22 to the military police?
23 Q. Sure. Yes. There were units that were living on
24 Celebici barracks compound that weren't involved with
25 the prison; right?
1 A. I don't know that. I never saw these units.
2 Q. Okay. Did you see any military police in the camp
3 while you were there?
4 A. Maybe in a few cases I saw some military policemen.
5 Once they were going up to search the terrain based on
6 the information that we provided from our
7 investigation. They came to get more precise
8 information. There was Mr. Mucic, Mr. Delic, Mr. Zovko.
9 They did not talk to me. They just took the
10 information that they needed and they went away.
11 That's all I saw and I cannot speak to anything else in
12 that regard.
13 Q. Okay. In the course of your investigations in the
14 Commission did you conduct an analysis to determine
15 about how many weapons were in the hands of people that
16 weren't authorised to have them and where they got them?
17 A. I spoke about that as much as I knew. Nobody had a
18 permit to carry military weapons like infantry weapons,
19 rifles, automatic rifles. All this was without
20 permits. The report was made about what weapons were
21 gathered, how the weapons were brought into the area,
22 how it was distributed around, who was armed and things
23 like that.
24 Q. Sir, if you recall, how did the weapons get into the
25 area? From your investigation what did you determine?
1 A. This was written down and I spoke about that yesterday.
2 Q. Jog my memory, sir. Who brought the weapons into the
4 A. Yesterday looking at the document that was given me,
5 I said that we confirmed and documents that the arms
6 were brought into the Bradina area and wider area. For
7 instance, it was Zara Mrkajic. Then it was Strahinja,
8 who was never in the camp, who had escaped before.
9 These weapons were brought from the resources of the
11 Q. Okay. Was there any organised group that brought these
12 from the resource of the JNA or was it just these people
13 working as individuals?
14 A. That was the purpose of the Commission, to document this
15 and to discover the individual names of the persons who
16 did this, and we could glean that it was organised work,
17 but we had to see how widespread this organisation was,
18 and how high up it was linked.
19 Q. How widespread was it, sir? How widespread was this
20 organisation that was bringing in these illegal weapons?
21 A. I did not say that we determined what the organisation
22 was, but it did -- but there was one.
23 Q. But you said one of your jobs was to determine how
24 widespread. I take it from your answer that you were
25 unable to determine that; is that correct?
1 A. Yes. We did not finish the job.
2 Q. Okay. That's fine. Did you arrive in your
3 investigation at an estimate of about how many of these
4 illegal military weapons were distributed?
5 A. An estimate could have been given but on this phase of
6 our work it was not done. There was an approximation,
7 but not sort of the general conclusive estimate.
8 Q. What was that approximation, sir? Based on your
9 investigation, approximately how many of these illegal
10 weapons were distributed in the Konjic area, and I know
11 you don't have an exact number, but just an estimate,
12 that approximation that you were talking about that
13 you'd arrived at?
14 A. I cannot say that, and you put it well, but from what
15 I had, I saw that especially in Bradina, Brdjani, Donje
16 Selo, and especially Bradina, to exclude Borci and Borci
17 Lake, almost every military aged man had a piece of
18 infantry weapon. Besides there were mortars brought in
19 there, sub-machine guns, anti-aircraft machine guns, a
20 large number of shells, things like that.
21 Q. I know this is going to sound like a foolish question
22 but I'll just go ahead and ask it anyway. It was
23 against the law to have that kind of stuff, wasn't it?
24 A. The war started illegally too.
25 Q. In fact, having that kind of equipment is the kind of
1 thing that can get you thrown in jail, isn't it?
2 A. We started a war and had it not been the war, definitely
3 they would be in jail.
4 Q. Judge, if I could have about 30 seconds or so to flip
5 through my notes, I think I'm done, but I just want one
6 last chance to flip through my notes.
7 JUDGE KARIBI WHYTE: Yes. (Pause).
8 MR. MORAN: In fact, one of the jobs -- let me just ask you
9 one -- I think this may be it. One of the jobs of the
10 Commission, okay, was to determine whether holding these
11 people in confinement was necessary for the security --
12 in fact, absolutely necessary for the security of the
13 Republic of Bosnia-Herzegovina? That was one of your
14 jobs, wasn't it?
15 A. As far as I remember, when we discussed this issue, in
16 parts of the Commission some persons and myself included
17 said that -- and I don't know what I was proposing at
18 that time -- at the staff commander or some level --
19 that those would -- should be released with the proviso
20 that they should regularly report to the police bodies,
21 and that these police bodies should be either reinforced
22 where they were or established where they were not in
23 the areas where these people were being released.
24 Q. So one of the jobs of the Commission was to decide if
25 there were some people that it was absolutely necessary
1 for the security of the State to keep them in
2 confinement and then to determine if there were others
3 that could be released with conditions on their
4 release. They may have to live in a certain place,
5 those kinds of things. That was one of the jobs of
6 your Commission; right?
7 A. We didn't do that, because nobody said, and it should
8 have been organised that way, as far as I was concerned,
9 but it wasn't my duty to organise things in this way.
10 Q. You just mentioned organisation and I wasn't going to
11 mention it, but since you did, let me go into this just
12 a bit, not just in the camp and not just with the
13 Commission. I am talking about the broader picture in
14 the Konjic area in May, June, July 1992; okay? You were
15 there most of that time. The governmental military
16 situation was pretty unorganised, wasn't it?
17 A. Yes.
18 Q. And nobody was quite sure about anything, about what the
19 organisation was, what the HVO was supposed to do, what
20 the TO was supposed to do? There was problems
21 communicating with Sarajevo to get orders from the
22 higher military commanders. All these were problems;
24 A. Yes, problems.
25 Q. Okay. Your Honour, I pass the witness. Thank you
1 very much.
2 JUDGE KARIBI WHYTE: Thank you very much.
3 Cross-examination by Mr. Greaves
4 MR. GREAVES: Your Honour, I have got some questions that
5 I think touch upon this man's career, so I imagine that
6 your Honours would wish to have the first part of my
7 cross-examination in private session.
8 JUDGE KARIBI WHYTE: Yes. We'll go into private session.
9 (In closed session)
14 pages 5388 to 5397 redacted - in closed session
8 (In open session)
9 MR. GREAVES: Thank you very much. Mr. D, I would like now
10 to turn to the investigations that you were carrying out
11 as part of this Commission. You told us yesterday that
12 you compiled a report on behalf of the Commission and
13 you gave us a description of the nature of that
14 report. If I can remind you what you told us, you
16 "I'm not going to go at any length into it but it
17 was as follows: these people, those Serbs in the area
18 of Bradina and wider in the area of Konjic, were arming
19 themselves; where did the weapons come from; who was
20 giving it to them; what type of weapons; when it was
21 transported to Bradina and other locations around
22 Konjic; how it was distributed; to whom it was
23 distributed; and who were the persons from the Konjic
24 area who took part in this.
25 Secondly, it is the feeling of the Commission that
1 criminal charges could be filed against those persons
2 for inciting armed rebellion pursuant to the laws of the
3 former Yugoslavia. This is all that was incumbent upon
4 us to decide".
5 Do you remember giving that evidence yesterday,
6 Mr. D? That was the real purpose of your Commission,
7 wasn't it, to gather military intelligence?
8 A. Yes. That is how we worked at the time.
9 Q. The information about the distribution of arms and to
10 whom it was linked and who the people in Konjic area who
11 took part in that, that wasn't going to help you decide
12 the categories of people who could be released, was it?
13 A. Yes, it was helpful. That was the most important
14 thing. I explained that.
15 Q. But there was no report you say prepared in respect of
16 those who had done nothing or who had had no arms?
17 A. I said that according to the categorisation if on each
18 file, whatever you like to call it, a dossier, if a
19 first, third, fourth, fifth or whatever category was
20 indicated on the file, then those files were piled up
21 according to category. Then a list would be made of
22 those in the first category, then a list of those in the
23 sixth category, shall we say, as an example, then you
24 would see the definition of that category and read the
25 list of names in that category. Then whoever was
1 authorised to say the people in the sixth category may
2 be released or upon their release one could say that
3 they should report to the competent police body, that
4 person could do that on this basis.
5 Q. Who was the mediator? Don't tell us a name. Just
6 describe the job of the mediator that you described you
7 dealing with yesterday. Do you remember doing that?
8 A. There was no such function. I explained it
9 yesterday. He had no other function. I don't even
10 know who were the members that proposed that he should
11 be that person, and we agreed. It wasn't a special
12 assignment for which we elected somebody or appointed
13 somebody, or determined in any other way.
14 Q. So who was the information being given to?
15 A. I don't know who they were given to, nor was it up to me
16 to give them, and I don't know to whom they were
17 given. When Mr. Delalic spoke to us, every information
18 should be conveyed to him or rather the TO and HVO
19 headquarters. That was how I imagined it at the
20 time. Whether the person who was supposed to carry
21 that information there did so, I don't know.
22 Q. So to whom did this man you describe as the mediator, to
23 whom did he belong? Was he a policeman, a military man,
25 A. A policeman. He worked in the police.
1 Q. Military or civil police?
2 A. It was stated that they all belonged to MUP.
3 Q. Yesterday you told us when you were being asked
4 questions by Ms. Residovic that a document you were just
5 asked to look at you had seen the previous day. Can
6 you tell us where it was you'd seen that document?
7 A. Sorry, which document?
8 Q. I can't recall the exact number of it but you told us,
9 I think yesterday, that you'd seen a document the
10 previous day. Do you remember saying that? If you
11 can't remember, it doesn't matter?
12 A. I don't know what document you are referring to.
13 Q. All right. I want now to turn, please, if we may, to
14 the break-down of the Commission. It's right, isn't
15 it, that the break-down of your Commission coincided
16 with the break-down of relations between the HVO and the
18 A. That is the first I hear of it.
19 Q. So you were completely unaware, were you, at any time
20 towards the end of June or early July of any stresses
21 and strains in relationships between the TO and the HVO?
22 A. I could feel the strains in the field but that had
23 nothing to do with the stoppage of the work of the
24 Commission. It was not just the people from the HVO,
25 but the Commission as a whole. The whole Commission
1 stopped, and this should have probably happened much
2 earlier on, according to the views of the Commission
3 members, but that was what the circumstances were.
4 I personally did not want that to happen, nor did
5 I avoid any contacts in that sense, nor did I ever later
6 on in any way contribute to the aggravation of those
7 relationships. Wherever I was, I sought to talk and to
8 ease those tensions and you are free to check that and
9 to prove it. If I had wanted that, I wouldn't have
10 looked for Mr. Delalic much later when relations were
11 extremely strained. So I didn't want relations to be
12 like that, nor did I contribute to them being like
13 that. Why that was so, that's another story.
14 Q. Can you help me about this, please, Mr. D: you became
15 aware, you've told us, that, for example, there had been
16 a rape committed in the camp. Why didn't you report
17 this matter to the police?
18 A. I think I described the atmosphere in which we worked
19 and several cases that I did report. I have nothing
20 more to add.
21 Q. Did you report this incident to anybody, other than
22 having it put in the report?
23 A. When the question of rape is concerned, I explained that
24 it was a typist whose name and surname I gave who said
25 this, and that I happened to be there with a member --
1 if I had been there when the report had been drafted,
2 I would have asked that that be included and I would ask
3 the other members of the Commission to do the same. It
4 would be up to them to decide whether to do that or not.
5 Q. Yes, but you were a former policeman. You would know
6 how to go about making a complaint concerning an
7 allegation of rape, wouldn't you?
8 A. I don't know to whom this could have been reported in
9 those days in Konjic. The court, the Prosecutor's
10 office existed there before the war, and we have spoken
11 about those circumstances.
12 Q. Did you make any attempt to find out whether there was a
13 competent authority to whom you could report an
14 allegation of rape, Mr. D, and, if not, why not?
15 A. What I did I have said and from this viewpoint I can't
16 say whether maybe I could have done more, but the
17 circumstances, the atmosphere was such -- let me say
18 something more. One day my tyres were pierced on my
19 car because some of the Serbs had applied to the
20 military police to look for help, and if you were to
21 give any kind of assistance, you were proclaimed a
22 defender of the Cetniks. That was the atmosphere. My
23 dear gentleman, the war -- there was the war. There
24 were killings. There were persecutions of civilians,
25 and it was not strange that this hatred should have
1 developed among people who were killing each other.
2 I avoided that, though, in my own family some people
3 were killed and their houses destroyed, but I was trying
4 to encourage people to think, to use their -- to be
5 reasonable, for that was the only way to overcome the
6 situation rather than reacting to evil with evil.
7 I wanted that to be reduced to a minimum, if possible.
8 Q. So is what you're saying that it was going to be
9 dangerous for your health to raise these matters? It
10 would be dangerous for anybody to raise these matters?
11 Is that what you are saying?
12 A. Yes.
13 Q. Whether they were in command of the camp or not? Is
14 that what you are saying?
15 A. The Commander of the camp, the people with certain
16 higher positions, should -- certainly it was easier for
17 them than for me. I told you what I experienced, and
18 I think it's clear enough.
19 JUDGE KARIBI WHYTE: Thank you very much, Mr. Greaves.
20 MR. GREAVES: I noticed your Honour reaching for the button
21 and I was going to come to an end there.
22 JUDGE KARIBI WHYTE: We will go and break.
23 MR. GREAVES: Thank you.
24 JUDGE KARIBI WHYTE: We will resume at 2.30.
25 (1.00 pm)
1 (Luncheon Adjournment)
1 (2.30 pm)
2 JUDGE KARIBI WHYTE: Good afternoon.
3 MR. GREAVES: Good afternoon, your Honour.
4 JUDGE KARIBI WHYTE: The witness is all yours.
5 MR. GREAVES: I know that it's your Honour's usual practice
6 to remind him that he is on his oath after each break.
7 JUDGE KARIBI WHYTE: Would you kindly tell him he is on his
8 oath. Remind the witness he's on his oath.
9 THE REGISTRAR: I'm reminding you that you are still
10 testifying under oath.
11 MR. GREAVES: I've got one question I think that it might be
12 helpful just to go into private session for, please.
13 JUDGE KARIBI WHYTE: Yes, you can go ahead.
14 (In closed session)
17 (In open session)
18 MR. GREAVES: Mr. D, could you help me about this, please?
19 The period which you spent working at the Celebici camp
20 was effectively you say the period of June 1992, give or
21 take a day or two; is that right?
22 A. Yes.
23 Q. Would you accept that throughout the period that you
24 were there the conditions within the camp could be
25 described properly as chaotic?
1 A. No, I never used that expression.
2 Q. You may never have used it before, but quite apart from
3 its employment as a place of detention, there were other
4 activities taking place within the camp, weren't there?
5 A. I stated all this in detail as far as I could in my
6 previous statements.
7 Q. Yes, but just remind us, please.
8 A. I am reminding you that I have described this in
9 details, the conditions that I found there.
10 Q. Very well, Mr. D. Finally this, please: can you help
11 us -- you were aware of the existence of representatives
12 of international bodies in the Konjic area, were you, at
13 the time that this was taking place?
14 A. UNHCR was definitely there among the international
15 organisations. I don't know where their premises
16 were. I think they were stationed in Jablanica.
17 UNPROFOR, International Red Cross. I don't know if
18 they were in Konjic. Maybe they were, but at that time
19 I was pointing to the fact that the international
20 institutions were coming there, were following there,
21 were controlling things, if you will, helping overcome
22 our difficulties, and that we should really do
23 everything we can to protect ourselves from doing
24 anything wrong and anything untoward.
25 Q. Did you make any attempt to bring your concerns about
1 Celebici camp to their attention?
2 A. I did not try to do that, and frankly I didn't even know
3 where to go, but I wasn't thinking of that. I was
4 thinking about what we were doing and what we should be
5 doing. Unfortunately I have to say that I did not say
6 everything that I could have done, speaking from where
7 I speak now today. You know, afterwards you see that
8 you didn't do everything that you could have done at the
9 time unfortunately.
10 Q. Was it one of your concerns, if you had been seen to do
11 that, to report matters to international bodies, that
12 would have been seen as helping Cetniks?
13 A. You asked a very good question. That speaks of the
14 situation that I described before we had the break for
16 Q. To be perceived as helping Cetniks you have told us
17 would be a dangerous thing for your health?
18 A. Of course; not only mine.
19 Q. There were plenty of people on the look-out for people
20 helping Cetniks, weren't there?
21 A. I did not understand this. Counsel, I think that you
22 should distinguish between Cetniks and Serbs.
23 Q. Well, that was the language of the time, wasn't it?
24 That was the atmosphere abroad, wasn't it?
25 A. No. I did not accept those things in such an
2 Q. But certainly that was your perception, that there was
3 danger in it?
4 A. That's a different issue. It was dangerous to offer
5 assistance and the danger came from those elements who
6 without thinking clearly or reasonably simply hatred
7 arose among them, that everybody should be hated in
8 general, and then you could encounter such people that
9 could do just anything to you without thinking.
10 I think that you may know from this war in the former
11 Yugoslavia what happened on all three sides.
12 Q. Thank you very much, Mr. D. I have no further
13 questions, your Honour.
14 JUDGE KARIBI WHYTE: That is the end of your
15 cross-examination. Any further cross-examination?
16 MS. McMURREY: Your Honour, counsel for Esad Landzo, we have
17 no questions of this witness. Thank you.
18 Re-examination by Ms. McHenry
19 MS. McHENRY: Just one question, your Honours, in
20 re-examination. Sir, did you and the other members of
21 the Commission believe or appreciate that even writing
22 the Commission report could be dangerous to your health?
23 A. I thought that this question would be asked of me by the
24 Prosecutor and I think that indeed this question should
25 have been -- this should be answered. I came to
1 Celebici on Tuesday after the report was written and the
2 guards can confirm that this happened.
3 MR. GREAVES: This requires a "yes" or "no" answer. We
4 don't need a speech, I think.
5 JUDGE KARIBI WHYTE: You are anticipating far too much.
6 Let him tell us what was the position at that time. Go
8 A. And it was risky. I'll first answer with "yes" or "no"
9 and then with the permission of the court I can explain
10 further. In other words, counsel for the Defence was
11 talking about dangers and reporting it to the
12 international organisations. The writing of this
13 report could be considered as reporting of someone who
14 was not competent, but spreading of this information to
15 others who were linked to this in any way in an official
16 sense, it couldn't have been indifferent to them. I
17 don't know these people. I only know Mr. Zejnil
18 Delalic. I don't know about the others, whether they
19 were able to evaluate this properly and take certain
20 steps and measures, but I know that certain people were
21 talking informally in town in the sense that such things
22 should not have been done or right.
23 MS. McHENRY: No further questions, your Honour.
24 JUDGE KARIBI WHYTE: Thank you very much. So you can
25 afford to discharge this witness.
1 A. I wish to thank the Honourable judges and everybody else
3 JUDGE KARIBI WHYTE: So you are discharged.
4 (Witness withdrew from court)
5 JUDGE KARIBI WHYTE: Kindly allow us to have a discussion
6 for a short time before we come back to you. (Pause).
7 Now from our schedule you will find that after
8 today we are not likely to sit until about after a
9 fortnight. So we are considering whether we should
10 take these two motions, which to some might not be that
11 contentious, but to others it might be, whether if you
12 are prepared to discuss this motion that you call
13 additional witnesses or the other one in protection of
14 additional measures for protecting witnesses. There
15 has been no response to the second one, but I think
16 there has been only one response from the Delalic
17 Chamber on the motion to seek leave to call additional
18 witnesses. So if you are well disposed to, I suppose
19 we might be able to hear your response to the first
21 MR. MORAN: Your Honours, to the first one on calling
22 additional witnesses?
23 JUDGE KARIBI WHYTE: Yes.
24 MR. MORAN: We have absolutely no objection to that. I am
25 sure we are going to be standing in front of the
1 Tribunal in that same position one day. One must
2 understand that one is going to be in the same position
3 and not object.
4 JUDGE KARIBI WHYTE: Any other views on the first one,
5 Prosecution's motion to seek leave to call additional
6 witnesses? I think the circumstances warrant it. If
7 it does not, perhaps it might not be necessary.
8 MR. GREAVES: I wonder if I might just say that on behalf of
9 the defendant Mr. Mucic we wish to adopt the objections
10 raised by Mr. Delalic in this matter.
11 JUDGE KARIBI WHYTE: One more response? Has Ms. McHenry any
12 answer to that?
13 MS. McHENRY: Yes, your Honour. I'll just speak briefly.
14 Your Honour, on January 29th the Prosecution, if not
15 before that, but I know by January 29th, the Prosecution
16 informed the Defence of who its witnesses will be. As
17 is normal in every case, there are some changes that
18 happen. In this case without going into detail, there
19 have been a number of extremely also extenuating
20 circumstances such that we have sought leave to call
21 additional witnesses, and it may be that with respect to
22 a few other witnesses we may file motions in the
23 future. We are still trying to figure out which of our
24 past witnesses will and will not testify. I believe
25 briefly the reasons that we want to call the witnesses
1 are set out in more detail in our motion. I will just
2 briefly indicate that of the witnesses, seven are
3 Austrian police officers that have been made necessary
4 by various issues raised by the Defence and the court,
5 and I believe at least most counsel have indicated that
6 they don't have any objection, including, in fact, with
7 respect to the Austrian police officers, the Defence of
8 Mr. Mucic. We don't -- we hope that it will not be
9 necessary to call all seven of them, but your Honours
10 know and the defence knows very well what the issues are
11 and we don't believe that is an issue.
12 With respect to the other seven witnesses, the
13 Defence was notified with respect to all of those on
14 13th May that we would seek -- we would be seeking leave
15 to call them. Five of those witnesses are witnesses
16 that are going to authenticate documents that the
17 Defence had been told many months ago well before trial
18 we would be seeking leave to introduce, and that we
19 would be identifying the appropriate persons to
20 authenticate those documents.
21 So that only leaves two witnesses, and I don't
22 want to say any of the names, especially now that we are
23 in public session, but those two witnesses, and in
24 public session I don't want to discuss in great detail
25 the reasons for calling them, but they are important
1 witnesses. The Defence was notified some time ago that
2 we were going to seek to call them. The Defence has
3 been given copies of their witness statements, so that
4 they know the substance of what they are going to be,
5 and although it is unfortunate in many respects that
6 this case is taking longer than I think any of us
7 anticipated, and the Defence will have plenty of time to
8 adequately prepare.
9 JUDGE KARIBI WHYTE: Let's go to the --
10 MR. ACKERMAN: I just want to very briefly say for the
11 record that Esad Landzo joins the objections filed by
12 Mr. Delalic with respect to one of those witnesses, whose
13 name I won't say, but I think the content of the
14 objection makes it obvious which one I'm referring to.
15 JUDGE KARIBI WHYTE: We'll consider a ruling on the
16 objections later. Now the second one is this
17 protection, additional protections for witnesses,
18 additional measures I would say, because the protection
19 under the rules are fairly clear. These are additional
20 measures suggested for protecting witnesses. I have
21 not seen any reaction from any of the defence team. I
22 don't know what views the Defence holds about it.
23 MS. RESIDOVIC (in interpretation): Your Honours,
24 I apologise for standing while you were speaking, but
25 since the Prosecutor responded to our motion with
1 respect to additional witnesses, I understood that
2 before you make a determination, I should say a couple
3 of sentences. May I be allowed to do that?
4 JUDGE KARIBI WHYTE: Well, you could. I thought we were
5 talking about the Prosecutor's motion and your
6 objection. You could. You are free.
7 MS. RESIDOVIC (in interpretation): Thank you. The
8 Prosecution has just explained that these seven
9 witnesses are Austrian members of the police, that we
10 discussed during earlier witnesses. Our objection is
11 contained in today's comment by the Prosecution. We
12 feel that in the interests of expediency we need not
13 call all seven, but as many as will be sufficient for
14 this Trial Chamber to establish the real truth. If,
15 when objections were taken, there were present several
16 people, in my view one of them would be sufficient, so
17 that our objection was in the sense that we would call
18 as many Austrian policemen as witnesses as will be
19 necessary for the Tribunal to determine the legality of
20 the search and seizure procedures. That is why
21 I accept the clarification made by the Prosecution,
22 which was not stated in their motion.
23 As regards the other witnesses who need to
24 authenticate certain documents, Delalic's defence and
25 the present Defence Counsel of all the other accused in
1 connection of the question of the Prosecution of
2 5th December feel that newspaper articles published in
3 the time of war when they were mainly used for war
4 propaganda cannot at least be used as evidence in this
5 trial. The Prosecution is offering several witnesses
6 who will authenticate that certain articles were
7 published in certain newspapers. We feel that these
8 articles are inadmissible as evidence and that is why we
9 consider the testimony of such witnesses unnecessary.
10 As for the other two concrete witnesses that are
11 specified in our response, let me just add that one of
12 those witnesses was heard in December 1996 and in his
13 statement he said clearly that he was ready to come to
14 the Tribunal. That witness did not appear on the list
15 of witnesses given to us by the Prosecution before the
16 trial, even though it could have done that. There are
17 no new reasons or grounds for the Prosecution to expand
18 the list of witnesses with this new name.
19 As for the last witness, we have given the
20 detailed reasons for our objection in our response to
21 the Prosecution motion.
22 JUDGE KARIBI WHYTE: Thank you very much. I thought
23 I understood your response, so I didn't think it was
24 necessary to call on you at that time other than to tell
25 you that we will give our ruling. I think it's exactly
1 what has been stated in your response.
2 Now I still refer to the issue of the Prosecutor's
3 request for additional measures, to which we have not
4 had any reaction.
5 MR. MORAN: Your Honour, if I might, a little light
6 reaction. First, there is already an order from this
7 Tribunal that the documents that the Prosecution is
8 talking about are confidential documents, not to be
9 disseminated outside of the Defence team, and in that by
10 the way I include, for instance, my entire law firm and
11 the people working for me. What this seems to be is
12 the Prosecution, one, wants me to spend a bunch of time
13 creating a log that I am not going to put anything on,
14 make no entries in and, secondly, it seems to be asking
15 for an order that if I violate this court's order that
16 I make a notation of it and show it to you if you ask
17 for it. There is already an order out there
18 restricting access to documents, things like witness
19 statements, confidential material passed around in the
20 courts, and this is -- it just seems to be creating
21 another layer of paperwork in a place where Heaven
22 knows, there is more than enough paper floating
24 JUDGE KARIBI WHYTE: If there is any other opinion, we will
25 ask the Prosecutor to explain.
1 MR. GREAVES: I rather thought it was an insulting thing to
2 suggest to us and didn't dignify it with a response.
3 MR. ACKERMAN: Your Honours, I will just say that I think
4 each member of the team for each of the defendants here
5 has given this Trial Chamber no reason to believe that
6 any of us are of a dishonourable character in any way,
7 and if there was such evidence, then you ought to simply
8 run us out of here, but to put us under this kind of an
9 order raises the presumption that the Chamber considers
10 that we are disreputable and dishonourable in some
11 respect, and I think there's no evidence of that.
12 I think we are prepared to conduct ourselves
13 professionally, just like we hope the Prosecutor is. I
14 don't think an order from this court that we should do
15 so enhances that to any degree.
16 MS. RESIDOVIC (in interpretation): Your Honour, my
17 colleagues have said sufficient in a few words very
18 succinctly but to the point and I should like to join
19 them in their opinion. That applies to the Defence
20 counsel of Mr. Delalic.
21 JUDGE KARIBI WHYTE: Thank you very much. Can we hear the
22 reaction to that?
23 MS. McHENRY: Yes, your Honour. The Prosecution regrets
24 very much that any Defence Counsel would have been
25 insulted or would have taken this as attempting to
1 impinge in any way their honour. The Prosecution does
2 not -- is not suggesting that and does not mean to
3 suggest that any defence attorneys have acted
4 dishonourably. In fact, you'll note that the
5 Prosecution's request that the order apply to all
6 parties which would include the Prosecution as well as
7 the Defence counsel, as well as, of course, the
8 accused. Your Honours are very well aware, as are
9 Defence Counsel, of the problems with witness protection
10 in this case. In every case before this Tribunal there
11 are serious issues. In fact, that's why in another
12 case before this Tribunal the other Trial Chamber has
13 enacted or instructed an order very similar to this.
14 In this case we have had the leak of a protected witness
15 list. We have had letters which the Prosecution
16 believes were written by accused to witnesses, which the
17 Prosecution believes are threatening, and there have
18 been anonymous threatening telephone calls made to
19 certain witnesses in Bosnia-Herzegovina, and again,
20 without suggesting that necessarily Defence Counsel is
21 responsible for this, or anyone, we believe in light of
22 the experiences learned, it should be the case that
23 everyone keeps very good records of what happens when
24 the documents, so that if Defence Counsel correctly
25 gives a document to someone, and then there's an issue,
1 the Trial Chamber would be able to make an appropriate
2 investigation into potentially talking to the person who
3 quite properly got the document. Given the experiences
4 we have had, the idea that it would be somehow insulting
5 to put in writing what Defence Counsel maintains that
6 they are already doing, which is taking appropriate
7 care, is the Prosecution just believes prudent and
8 common sense, and makes sure that if there are other
9 problems in the future, that they will be able to be
10 potentially -- well, we believe it will minimise
11 problems in the future, including about, for instance,
12 information previously given. If everyone who receives
13 a copy of this is told: "These are the instructions and
14 I am even keeping a list that I gave this to you and
15 here are your instructions and here are the sanctions",
16 it minimises the possibility of problems. The
17 Prosecution believes for the protection of the witnesses
18 requires that this court take appropriate and reasonable
19 measures, and these measures are intended to apply to
20 all parties, including the Prosecution, and that we
21 don't believe they are disrespectful or insulting at
22 all. We believe they are necessary.
23 JUDGE KARIBI WHYTE: Let me get at this. How do you deal
24 with statements you tender to the Defence now? Under
25 those statements in compliance with Rule 66, what do you
2 MS. McHENRY: Previously, and I will be corrected if I say
3 something wrong, it is the case that all Defence Counsel
4 had indicated that they would keep material
5 confidential. With respect to additional material that
6 has been disclosed since we requested this order, my
7 understanding is Defence Counsel have agreed with
8 respect to that new material to abide by these requests
9 by the Prosecution. Does that answer your Honour's
10 question? I am not sure I understood it.
11 JUDGE KARIBI WHYTE: It does not. Don't those to whom you
12 give documents receipt it for you?
13 MS. McHENRY: Yes, your Honour.
14 JUDGE KARIBI WHYTE: They do already.
15 MS. McHENRY: Yes, your Honour.
16 JUDGE KARIBI WHYTE: Now how do you in practice deal with
17 this in the Rules? Is there any monitoring system?
18 MS. McHENRY: No. For instance, your Honours, when we give
19 the Defence material, we do not monitor how they or how
20 their clients handle it.
21 JUDGE KARIBI WHYTE: Under the present rules would there be
23 MS. McHENRY: Under the present rules the Defence counsel
24 and prosecution would just be keeping records such that
25 if, your Honours, there were subsequent problems, your
1 Honours would under this order be able to request the
2 records and determine to whom material has been given.
3 JUDGE KARIBI WHYTE: Do you think they don't do that now,
4 they don't keep records of materials?
5 MS. McHENRY: Your Honour, I don't know but at this point if
6 I had -- if you were to ask me my opinion, I don't
7 believe that all Defence Counsel and all accused follow
8 the requests that are in here.
9 JUDGE JAN: I just want to find out how would you
10 practically enforce it? You have to depend entirely
11 upon the good sense of counsel who is supplied with
12 these statements. Supposing they give a statement to
13 someone, even they keep a record, and that someone
14 abuses the trust and passes on the statement to someone
15 else, how can you hold counsel responsible and how can
16 you bring that other person who has abused the
17 confidence, how can you bring him before the court?
18 Under what law?
19 MS. McHENRY: For instance, your Honour --
20 JUDGE JAN: You have to depend entirely -- the point I want
21 to make is you have to depend entirely on the good sense
22 of counsel.
23 THE INTERPRETER: Microphone, please.
24 JUDGE JAN: Nothing more than that. They all said they
25 don't do it. Good enough.
1 MS. McHENRY: If I might respectfully disagree in some parts
2 with your Honour. For instance, if Defence Counsel
3 gives someone a copy of the statement quite properly and
4 informs that person of the confidential restriction.
5 JUDGE JAN: And he abuses that confidence.
6 MS. McHENRY: And that abuses it, under this system your
7 Honours would be permitted to request the log, see that
8 this person had received it and potentially that person
9 would be guilty of contempt.
10 JUDGE JAN: Under what Rule or Statute? Please point that
12 MS. McHENRY: Well, for instance, under the -- if what they
13 do is then publish an article in the newspaper in which
14 they accuse or threaten people, or send them threatening
15 letters --
16 JUDGE JAN: It is a different matter passing on information
17 to someone who may not threaten a witness. That's a
18 different matter altogether. Supposing it is misused
19 for some other purpose, what are you going to do?
20 MS. McHENRY: Your Honour, the Prosecution does not suggest
21 that this is going to solve every potential problem, but
22 given that the problems that the Prosecution is most
23 concerned about are threats made to witnesses, and we
24 have specific evidence of threats being made to
25 witnesses, of protected witnesses, needless to say we
1 are very concerned.
2 JUDGE KARIBI WHYTE: You mean the log will have to solve
4 JUDGE JAN: How will it solve that?
5 MS. McHENRY: I don't know that the log will solve it but it
6 might assist --
7 JUDGE KARIBI WHYTE: Under the undertaking of counsel.
8 MS. McHENRY: I believe that, for instance, your Honour,
9 this case when we had a previous one of the issues, both
10 the accused and counsel claimed their Fifth Amendment
11 rights to not respond to any questions. If your
12 Honours had previously had an order which required that
13 persons keep a log, it would have assisted the
14 enquiry. It my not have necessarily resolved it, but
15 everything that is in here is reasonable and your
16 Honours are pointing out that really these should all be
17 done normally and the Prosecution would agree. That is
18 why the Prosecution did not initially request this but
19 given that we have had a number of entirely unrelated
20 and separate problems, including threats on witnesses.
21 JUDGE KARIBI WHYTE: We will look into it but my
22 understanding of the profession is that when counsel is
23 speaking from the Bar, I think you take his word for
24 it. Whatever they are saying from the Bar is
25 accepted. If counsel has documents which he admits is
1 with him, I think that's all you need, not a log book,
2 which just doesn't mean anything. Unless you have a
3 third party who might be monitoring the log book,
4 because it will be ridiculous to expect either the
5 Defence or the Prosecution monitoring each other's log
7 MS. McHENRY: That's correct. Your Honour, without -- it
8 is also the case that this log would apply to the
9 accused, that, for instance, if the accused had a copy
10 of a witness statement, and as far as I know the accused
11 are given access to all the material that their
12 attorneys had, the accused would not be permitted to
13 give -- to send that to a newspaper, for instance, or to
14 send it to someone in a local area who might be in a
15 position to put threats on someone.
16 JUDGE JAN: But you are talking about threats,
17 intimidation. That is independent of keeping the log,
18 isn't it? If you find any ones, if you identify the
19 person who threatened or intimidated a witness, you can
20 always bring him before us under Rule 77. Don't relate
21 the log to the threat.
22 MR. GREAVES: If the accused is going to start doling out
23 his witness statement, he is not going to start leaving
24 evidence saying: "I sent this to a newspaper".
25 MR. MORAN: You asked the question a moment ago, Judge Jan,
1 what are they doing on discovery material. About a
2 week ago there was more discovery material that was due
3 under Rule 66A, which is mandatory discovery, and the
4 Prosecutor flat refused to provide this material unless
5 counsel signed a statement agreeing to keep a log book
6 of this material and such things.
7 MS. McHENRY: Your Honour, that is correct, and we said in
8 the motion that until your Honours decided this, we
9 would do. I would also note that we have been more
10 free than we have to with giving Defence Counsel access
11 and there are instances when all we are required to do
12 is let the Defence counsel look at something. As a
13 professional courtesy we have usually given them copies.
14 JUDGE KARIBI WHYTE: You are actually complying with the
15 rules. There is no extra professional courtesy. The
16 rules require you to supply them with these things.
17 MS. McHENRY: With respect to a large number of material,
18 your Honour, the rules require that we allow the Defence
19 counsel to inspect it and it doesn't require that we
20 provide them copies but we normally do this.
21 JUDGE KARIBI WHYTE: I don't see how the log book comes
22 into obliging anybody with copies of statements or
23 anything which you can give. I don't see the
24 relationship with the log book.
25 MS. McHENRY: Your Honour, the Prosecution believes --
1 JUDGE KARIBI WHYTE: You can keep your own log book, if it
2 is signed where he received it, but you don't tell him
3 about keeping his own log book. That's his own private
4 organisation of how to -- his Chambers functions.
5 Anyway, I think we have heard you. We will know what
6 to do later.
7 Have you any other witness for this week?
8 MS. McHENRY: No, your Honours.
9 JUDGE KARIBI WHYTE: Yes, Mr. Ackerman?
10 MR. ACKERMAN: I wondered if I could, since we are getting
11 ready to break for a fortnight, if I could raise a
12 matter that I would simply ask at this point that we all
13 kind of give some thought to over the break? I'm not
14 suggesting any kind of a solution to your Honours at
15 this point, but there is a matter that has developed
16 that is beginning to cause at least me and I think other
17 Defence Counsel some concern. My belief is that it's
18 an issue of recent development.
19 The source of it I will make no -- I have no idea,
20 but it seems that the last several witnesses who have
21 testified before this Tribunal, when confronted with
22 impeachment efforts by statements that they have made
23 previously, their statements to the OTP, have adopted a
24 way of dealing with that which is to say: "The
25 translation must be in error. That's not what
1 I said". That tends to put us in a position where
2 efforts at impeachment by those prior statements are
3 failing unless we have the ability to call the
4 translator to the witness stand to say: "There's nothing
5 wrong with my translation. That's exactly what the
6 person said". Otherwise the witness has the ability to
7 defeat efforts of impeachment.
8 There are a couple of things that concern me about
9 it. First of all, it seems to be of recent origin and
10 second of all it seems now to become the universal
11 technique of the witnesses that appear before you to
12 avoid impeachment.
13 JUDGE JAN: But, Mr. Ackerman, you have the original
14 statements in their own language also available. You
15 can read that portion to them from their original
17 MR. ACKERMAN: I think some of us can do that.
18 JUDGE JAN: That is very easy.
19 JUDGE KARIBI WHYTE: In fact, apart from that, apart from
20 that, if he said that was not what he said, couldn't he
21 say what he said? You can now ask him: "What then did
22 you say?". The impeachment then still --
23 MR. ACKERMAN: I think most of those statements are not in
24 the original language, your Honour. I think they were
25 taken in English and I think they were then read to the
1 witness by the translator, translated to the witness by
2 the translator and therefore we don't -- most of these
3 statements were not done in the original language of the
5 JUDGE KARIBI WHYTE: What we are saying is even if that is
6 the case and he wants to deny that, what he said in the
7 translation which you had, you now ask him what did he
8 say. It wouldn't be materially different from the
9 impeachment you want.
10 MR. ACKERMAN: What they are saying when you ask them that
11 is: "What I said was what I said on direct and what is
12 in my statement was a mistranslation by the translator".
13 JUDGE KARIBI WHYTE: We can still decipher whether it is a
14 mistranslation or not.
15 MR. ACKERMAN: It is impossible to do if there is not any
16 kind of a record of the original Serbo-Croatian. The
17 only person who would know whether they translated it
18 properly or not would be the translator who was
19 present. There is no taped record or video record.
20 All there is is a statement in English. To the extent
21 that we have statements of these witnesses that are in
22 Serbo-Croatian, it is just because we have had them
23 translated so that we can show it to the witness when we
24 are trying to impeach them, but it is my understanding
25 that these statements are all in English and were signed
1 by the witness in English, and were never taken from the
2 witness in Serbo-Croatian. It really does create a
3 problem if any discrepancies between the statement and
4 what the witness says in the courtroom are to be blamed
5 on the translator. That tends to take the witness off
6 the hook when you are trying to impeach them with what
7 they said previously if they are just going to be able
8 to say: "I didn't say that. The translator messed up".
9 JUDGE KARIBI WHYTE: Yes?
10 MS. McHENRY: If I might briefly respond first of all to
11 agree with some things Defence Counsel said. It is the
12 case that the fact that usually the investigators and
13 the witnesses do not speak the same language causes
14 problems. Absolutely. The Prosecution agrees with
15 that and we are constantly trying to handle that, and
16 I think we can all see here in court that there are
17 often translation errors. Also Defence Counsel is
18 correct that the statements are taken in English, and to
19 the extent that the witnesses are shown Serbo-Croatian
20 versions of their statement, those are statements that
21 have been made -- in fact I really think translations in
22 all cases that have been made by the Defence at the
23 Tribunal's expense, but they are not what the witness
24 himself signed. They are translations of the English
25 language originals.
1 I would, though, certainly say on behalf of the
2 Prosecution that no-one from the Office of the
3 Prosecutor has ever suggested to any witnesses, and
4 I know Defence Counsel did not suggest that, but just to
5 be clear in terms of recent origin, the Prosecution
6 believes that this has been in issue from the very first
7 witness, and it is the case, as your Honour Judge Karibi
8 Whyte has pointed out, in such cases you can ask the
9 witness: "Well, what did you say?", and read the
10 statement to see if, in fact, it seems plausible.
11 There are many, many examples where Defence Counsel
12 impeach a witness with his statement when, in fact --
13 sometimes the witness will say: "Maybe I said that, but
14 maybe I was confused", when, in fact, when you read it,
15 it appears clear what it was was probably a translation
17 Just one example that came up today, Defence
18 Counsel was indicating that in the statement it says
19 "Mr. Delalic did not introduce himself to me but I knew
20 from ..." That is what Defence Counsel asked the
21 witness and the witness said: "I certainly would not
22 have said that because I would have known him". When
23 you read the full statement in the English translation
24 what it says is, as Defence Counsel correctly quoted:
25 "Mr. Delalic did not introduce himself to me but I knew
1 from many other people his position was". I think your
2 Honours would certainly be able to infer -- what the
3 Prosecution would believe is probably the witness said
4 was something like: "He did not introduce his position
5 to me", and it is just an interpretation issue. It is
6 not necessarily that one is right and one is wrong.
7 That's one of the reasons why the Prosecution wishes the
8 statements to be introduced, so your Honours can look at
9 them and determine whether or not you believe it's
10 likely that there may have been an interpretation issue
11 or whether or not, in fact, the witness said this, or
12 something else.
13 JUDGE JAN: But when the members from the OTP examined
14 these persons -- when the members from the OTP examine
15 these witnesses, don't they keep the record of the
16 statement in their own language?
17 MS. McHENRY: No, your Honour. At least up until any
18 investigation that I have worked on, which has been
19 several, not just Celebici, but for a while I haven't
20 been working on any new investigations, so unless
21 something has changed, which I know at various times
22 there are talk about how best to handle this issue, it
23 is the case that the statement is taken in English,
24 because the person taking the statement, the
25 investigator, does not speak Serbo-Croatian. So the
1 statement is taken in English and there is no original
2 Serbo-Croatian to maintain.
3 JUDGE JAN: But don't you audio record his statement which
4 he is making to the OTP?
5 MS. McHENRY: Video or cassette, do you mean?
6 JUDGE JAN: Just cassette.
7 MS. McHENRY: In the past that has not been the case. I
8 don't know if that is the case with investigations that
9 are on-going. I can certainly say with respect to this
10 case none of the -- unless someone was interviewed and
11 advised of their rights, which is the case with some
12 people, in which case those interviews are audio
13 recorded, there are no recordings made. It is just the
14 written statement in English.
15 JUDGE JAN: But this is very interesting. The witness is
16 asked to certify that this is a correct statement but in
17 a language which he doesn't know.
18 MS. McHENRY: That is correct.
19 JUDGE JAN: How can he read it?
20 MS. McHENRY: What the witness attests to is --
21 JUDGE KARIBI WHYTE: A translated version of what he said.
22 MS. McHENRY: Exactly. Let me find it for your Honours.
23 What the witness attests to is the statement that has
24 been read to him in whatever language is true, and then
25 the interpreter then certifies that:
1 "I am a qualified translator and I have translated
2 this", but it certainly is an issue. What we have here
3 is -- then when it is translated back into
4 Serbo-Croatian what you have is a translation of a
5 translation, which causes additional problems.
6 JUDGE KARIBI WHYTE: Actually this matter has been
7 discussed for quite a while. It was impossible in the
8 field to do otherwise except you have somebody who can
9 take it down in that language and keep it in that
10 language for the purposes of the trial, but I don't know
11 how to. This still creates problems. All it might do
12 at this stage, it might create doubts in the mind of
13 whoever is considering his statement as to how much he
14 can rely on those statements. This is perhaps what it
15 might do. Well, I know those are some of the hazards
16 of a trial.
17 JUDGE JAN: Mr. Ackerman, can't you take advantage of the
18 certificate which the translator gives on the
20 MR. ACKERMAN: Well --
21 JUDGE JAN: Instead of calling the translator, the
22 certificate is there and the Prosecution does not
23 dispute that the certificate is that of the translator.
24 THE INTERPRETER: Microphone, please.
25 MR. ACKERMAN: We of course do that, as Mr. Greaves did
1 today. I don't know. My guess is there is a whole
2 bunch of translators sitting around this building
3 saying: "I wish they'd stop doing this to us. We
4 would love to get in there and tell the judges we do
5 this right and we are good at what we do" but
6 I understand they are not permitted to testify under the
7 rules that exist here at the present time. I am just
8 raising what I think is a problem and I'm hoping that
9 some thought can be given to it beyond: "There's nothing
10 we can do about it". I think maybe there is something
11 we can do about it.
12 MR. MORAN: I would suggest because all of these translators
13 are certified by the Registry of the Tribunal that that
14 is at least conclusive evidence -- it may be rebuttal,
15 but at least a rebuttal presumption that, in fact, they
16 did their job, they did their job like they were
17 supposed to and they did it competently. If someone
18 says it is a bad translation, it would be the burden of
19 the person to prove it, not just to claim it, but to
20 bring forward proof that the translation isn't accurate.
21 JUDGE KARIBI WHYTE: Thank you very much. Actually in all
22 literary things the problem of translation has been very
23 well understood and known. When you translate from one
24 translation to the other, and it depends on who
25 translates, and as many people have translated
1 particular subject matter have what they call their own
2 influence on it. Even if you call someone else to
3 translate the same thing, they might not use the same
4 words. So it is not that one can categorically say you
5 can do, but an effort will be made to make sure there is
6 a minimum of acceptance which one can get to
7 translations, because it is not the words of the person
8 who has spoken the original thing and he might not use
9 the words that the translator has used, and another
10 translator might not even use the same words. So we
11 are still going from one to the other. It's a pity but
12 we will try. It is a process of learning. At some
13 stage we will find a solution.
14 Now I think we will now adjourn until 4th August
15 and for that week we will sit only until 7th August and
16 resume again on 11th-15th. I think that's the next
17 schedule when we resume. So I wish everyone a good
19 (3.30 pm)
20 (Hearing adjourned until 4th August 1997 at 10.00 am)