Tribunal Criminal Tribunal for the Former Yugoslavia

Page 5331

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

Page 5332

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)

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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

Page 5365

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

17 categories.

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

Page 5366

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

9 report.

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

Page 5367

1 assessment?

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

Page 5368

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

20 know.

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

Page 5369

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?

Page 5370

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

21 detention.

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

25 ago?

Page 5371

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

16 Bosnia-Herzegovina.

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

22 all?

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

Page 5372

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

20 statement?

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

Page 5373

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

12 that.

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

17 Commission.

18 MR. MORAN: Okay. What was the competence of your

19 Commission? What was the jurisdiction of your

20 Commission?

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

Page 5374

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

4 right?

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

15 it?

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

Page 5375

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)

19 (12.00)

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

25 name.

Page 5376

1 JUDGE KARIBI WHYTE: Let's go into private session.

2 (In closed session)

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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.

Page 5377

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 --

Page 5378

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

Page 5379

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

Page 5380

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

Page 5381

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?

Page 5382

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?

Page 5383

1 A. This was written down and I spoke about that yesterday.

2 Q. Jog my memory, sir. Who brought the weapons into the

3 area?

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

10 JNA.

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?

Page 5384

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

Page 5385

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

Page 5386

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;

23 right?

24 A. Yes, problems.

25 Q. Okay. Your Honour, I pass the witness. Thank you

Page 5387

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)

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Page 5398

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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

15 said:

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

Page 5399

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

Page 5400

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,

24 what?

25 A. A policeman. He worked in the police.

Page 5401

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

17 TO?

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

Page 5402

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 --

Page 5403

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

Page 5404

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)

Page 5405

1 (Luncheon Adjournment)

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Page 5406

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)

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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?

Page 5408

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

Page 5409

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

15 lunch.

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

Page 5410

1 atmosphere.

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

Page 5411

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

7 on.

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.

Page 5412

1 A. I wish to thank the Honourable judges and everybody else

2 present.

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

20 one.

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

Page 5413

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

Page 5414

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

Page 5415

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

Page 5416

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

Page 5417

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

Page 5418

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

23 around.

24 JUDGE KARIBI WHYTE: If there is any other opinion, we will

25 ask the Prosecutor to explain.

Page 5419

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

Page 5420

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,

Page 5421

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

Page 5422

1 do?

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

22 monitoring?

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

Page 5423

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.

Page 5424

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

11 out.

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

Page 5425

1 are very concerned.

2 JUDGE KARIBI WHYTE: You mean the log will have to solve

3 that.

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

Page 5426

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

6 books.

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,

Page 5427

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 --

Page 5428

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

Page 5429

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

16 statement.

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

Page 5430

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

4 witness.

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

Page 5431

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.

Page 5432

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

16 error.

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

Page 5433

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

Page 5434

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:

Page 5435

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

19 statement?

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

Page 5436

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

Page 5437

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

18 holiday.

19 (3.30 pm)

20 (Hearing adjourned until 4th August 1997 at 10.00 am)

21 --ooOoo--

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25