Tribunal Criminal Tribunal for the Former Yugoslavia

Page 5390

1 Wednesday, 23 February 2005

2 [Open session]

3 --- Upon commencing at 2.16 p.m.

4 [The accused entered court]

5 JUDGE AGIUS: Yes, Madam Registrar, could you call the case,

6 please.

7 THE REGISTRAR: Good afternoon, Your Honours. This is Case

8 Number IT-03-68-T, the Prosecutor versus Naser Oric.

9 JUDGE AGIUS: Thank you and good afternoon to you. Mr. Oric,

10 good afternoon. Can you follow the proceedings in a language you can

11 understand?

12 THE ACCUSED: [Interpretation] Good afternoon Your Honours, ladies

13 and gentlemen. Yes, I can.

14 JUDGE AGIUS: I thank you. Appearances for the Prosecution.

15 MR. WUBBEN: Good afternoon, Your Honour and good afternoon my

16 learned friend from --

17 JUDGE AGIUS: One moment. There seems to be a problem. I wasn't

18 following the transcript because -- yeah. It seems there is something

19 wrong. Please bear with us, Mr. Wubben. We need your cooperation a

20 little bit. There is something wrong.

21 In the meantime, Registrar, I will confirm this later on when the

22 transcript is going. Although today most of the time will be taken by

23 the Chamber itself in asking questions, I do not want a situation with

24 the same -- with Mr. Jones and his client being unable to communicate

25 because of a language problem, I would take it. So I am instructing the

Page 5391

1 registrar to provide without delay or with the utmost celerity an

2 interpreter that has never worked with the Office of the Prosecutor --

3 that has never worked with the Office of the Prosecutor -- to sit by the

4 side of Mr. Jones and to act as a -- interpretation purpose or go-between

5 between him and his client should your client want to send him notes or

6 explain things to you, because otherwise we will have problems. Yes, Mr.

7 Jones.

8 MR. JONES: Yes, that's very kind and considerate of Your Honour.

9 If we had had more time I would have looked into something of that

10 nature. We have a primitive form of communication with my Bosnian and my

11 client's English, but that would be greatly appreciated.

12 JUDGE AGIUS: Yes, in the meantime we can proceed once this -- I

13 see that the problem has been solved. I think we will have to go through

14 this once more.

15 Madam Registrar, could you call the case, please. I know that

16 you have called it already, but I would like you to call it again for the

17 record because the transcript doesn't show that you did.

18 THE REGISTRAR: Yes, Your Honours. Case Number IT-03-68-T, the

19 Prosecutor versus Naser Oric.

20 JUDGE AGIUS: I thank you, Madam. And good afternoon to you.

21 Mr. Oric, I'm afraid I have to ask you the same question again. I want

22 to make sure that you can follow the proceedings in your own language.

23 THE ACCUSED: [Interpretation] Good afternoon, Your Honours,

24 ladies and gentlemen. Yes, I can, I can follow the proceedings in my own

25 language.

Page 5392

1 JUDGE AGIUS: Okay. Thank you.

2 I think then I don't need to repeat to you that I have tried --

3 we are trying to get the registrar to send us someone so that you can

4 communicate with your lawyer better.

5 Yes, again once more I have to look to my left and ask Mr.

6 Wubben. Appearances for the Prosecution, please, Mr. Wubben.

7 MR. WUBBEN: Thank you, Your Honour. Good afternoon, Your

8 Honours, and also good afternoon to my learned friend of the Defence

9 team. My name is Jan Wubben, lead counsel for the Prosecution together

10 with co-counsel, Ms. Patricia Sellers and Joanne Richardson; also our

11 case manager, Ms. Henry-Frijlink.

12 JUDGE AGIUS: I thank you.

13 And Mr. Jones.

14 MR. JONES: Good afternoon, Your Honours. My name is John Jones

15 and I appear on behalf of Naser Oric. Good afternoon to you.

16 JUDGE AGIUS: I know there is an urgent motion asking for an

17 adjournment after the end of the testimony of this witness. I think we

18 should address that at the end of the testimony of this witness. In the

19 meantime we will proceed with the witness straightaway and not keep him

20 waiting unless there are other preliminaries.

21 MR. WUBBEN: Your Honour, very short. When I looked into the

22 transcript I noticed that there might be a question by Trial Chamber, and

23 please correct me if I'm wrong. To what extent there are beside the

24 aerial photograph we showed also other aerial photographs of Srebrenica.

25 And if that is a question, I can answer it.

Page 5393

1 JUDGE AGIUS: No, no, no, no. Forget it, Mr. Wubben. We were

2 just passing a comment because the only photo that -- when I asked you:

3 Do you have one in a reduced size that we can show to the witness, it

4 happened to show us everything except what we wanted to see. So it's not

5 a problem. More or less we have an indication where the --

6 MR. WUBBEN: Just to support you. Thank you, Your Honour.

7 JUDGE AGIUS: Yes, thank you.

8 Well, I do appreciate your concern, actually.

9 [Trial Chamber and registrar confer]

10 JUDGE AGIUS: Yes, is there a problem? No problem. Okay.

11 [The witness entered court]

12 JUDGE AGIUS: Good afternoon, Dr. Mujkanovic, and welcome back.

13 THE WITNESS: [Interpretation] Good afternoon, Your Honours.

14 JUDGE AGIUS: Today we'll do our best to finish with your

15 testimony. That also depends on your cooperation. The shorter you keep

16 your answers and -- the better it will be. So please try to answer the

17 question, the whole question, and nothing but the question. Yes, we had

18 almost finished the re-examination.

19 Yes, Mr. Wubben.

20 MR. WUBBEN: Yes, I have some questions left for re-examination,

21 Your Honour, and I would like to start.

22 JUDGE AGIUS: Yes, yes, please. That's why I called you.

23 MR. WUBBEN: Thank you.


25 [Witness answered through interpreter]

Page 5394

1 Re-examined by Mr. Wubben: [Continued]

2 Q. Dr. Mujkanovic, good afternoon. At the end of the court session

3 last Monday we were dealing with the issue of measures by Naser Oric to

4 prevent the burning and looting of Serb properties. Let me refer to the

5 transcript on Monday at the end of the session, and I will quote your

6 answer to the question why Naser Oric wouldn't have intervened in trying

7 to curtail the burning and destruction of Serb properties. And I will

8 quote you in your answer: "He was in no position to discuss this with

9 civilians, but the most important reason, the paramount reason, was that

10 there was simply no way to secure the areas."

11 In addition to this opinion, Dr. Mujkanovic, do you recall having

12 held another opinion in the past as why Naser Oric did not intervene, why

13 he did not curtail this burning and looting?

14 MR. JONES: Sorry, I'm not comfortable with the suggestion that

15 this witness -- it's ever been accepted that Naser Oric did nothing to

16 curtail the burning and looting. The questions asked, and I'm just

17 reading the transcript, hence the delay of getting to my feet, but it was

18 all a question of possibility of doing anything. And for my learned

19 friend to suggest that there was a wilful suggestion of Naser Oric not to

20 prevent something --

21 JUDGE AGIUS: He's not suggesting that.

22 MR. JONES: As long as that's clear.

23 JUDGE AGIUS: Mr. Jones, please, he's not suggested that. He's

24 asking whether in the past or on some previous occasion he gave some

25 other explanation why Naser Oric did not intervene. He's not saying that

Page 5395

1 he gave an explanation that he did not or chose not to intervene. It

2 could be anything.

3 So the question you need to answer, Dr. Mujkanovic, is the

4 following: Do you recall having held another opinion in the past as why

5 Naser Oric did not intervene, why he did not curtail in burning and

6 looting? Did you ever give another explanation that you can recall?

7 A. Yes. That was my own opinion, which I will now reiterate. Under

8 the conditions that prevailed in Srebrenica at the time, it was

9 impossible to lead a normal life or to carry out any of the usual

10 procedures in relation to just about anything. There were no courts and

11 no public prosecutors in Srebrenica at the time. There was a shortage of

12 qualified people to do those jobs. They had left Srebrenica; it was as

13 simple as that.

14 I said once that any attempt by anyone at all including Naser

15 Oric to prevent looting by civilians, to prevent civilians burning

16 villages would have amounted to a loss of his own credibility in the

17 area. He had no mechanism at hand to protect property nor was he in a

18 position to create conditions for those people to have some sort of a

19 normal life. He would have compromised the confidence that he enjoyed

20 with the local population. And I'm sure that would have led to clashes

21 in Srebrenica itself.

22 JUDGE AGIUS: Yes, Mr. Wubben.


24 Q. So is it correct to take it as your testimony that he would not

25 -- that he chose not to compromise the people and thus taking the opinion

Page 5396

1 not to take steps or measures to prevent that burning and looting?

2 A. I'm not talking about compromising the people. I'll say it

3 again. It's very difficult to form conclusions on the basis of what

4 actually happened in Srebrenica. Srebrenica only had partial civil

5 authorities which had jurisdiction over civil and military matters, but

6 it didn't have a public prosecutor. I'm not sure that there were more

7 than 50 people in the entire area with university education. Most of

8 them were engineers; there were seven medical doctors, physicians; and

9 five or six people with a degree in economics. I'm not aware of the

10 presence in the area of a single lawyer, though, who could have set up a

11 court of law. There was no procedure in place to prosecute people or to

12 take any measures against any individual --

13 JUDGE AGIUS: Stop, stop, stop. If you continue like this you're

14 going to be here today, tomorrow, and even Friday. You're not answering

15 Mr. Wubben's question. You did not answer it before and you're not

16 answering it now.

17 The question is very simply put: Is it your testimony that Naser

18 Oric chose not to compromise -- not to compromise the people, not to

19 compromise with the -- chose not to take steps or measures to prevent

20 that the burning and the looting, so not to come and to clash with the

21 people in the general opinion? This is basically what you are being

22 asked.

23 MR. JONES: Your Honour, again Mr. Wubben is putting words into

24 the witness's mouth. What he was talking about was that for Naser Oric

25 to be attempting to prevent an impossible situation he would lose

Page 5397

1 credibility with the people; he didn't say Naser Oric chose to do

2 anything. And if we're going to fairly summarise this witness's

3 evidence, he also said that Naser Oric wasn't competent, either. He said

4 it was the War Presidency --

5 JUDGE AGIUS: That's an argument, that's a submission.

6 MR. JONES: No, Your Honour -- No, Your Honour --

7 JUDGE AGIUS: Yes. Mr. Jones, it's a submission. Please sit

8 down and let the witness answer the question.

9 MR. JONES: I just want his evidence to be summarised fairly.

10 JUDGE AGIUS: It has been summarised more than fairly, Mr. -- and

11 you will see later on how fairly it has been summarised.

12 THE INTERPRETER: Microphone, please.

13 MR. WUBBEN: And Your Honour, if I may, I would like to rephrase

14 the question taking the words literally from -- exactly from the witness.

15 What he meant by compromising the confidence of the people that the

16 people had in Naser Oric, what he meant by that.

17 THE WITNESS: [Interpretation] What I said was that he would have

18 lost his credibility with the locals by doing so.


20 Q. Thank you. And -- thank you. And in addition to that does that

21 mean that he abide by the public will, that he followed the public will?

22 A. I don't think I can answer that question, whether he was in

23 compliance with the will of the people or the public. I don't know that.

24 Q. Do you mean you don't recall that you ever gave such a reasoning

25 or clarification?

Page 5398

1 A. I don't recall whether I have ever said that, but it's certainly

2 not something I can say whether Naser Oric followed the will of the

3 people or the public. It's much too complex a question for me to answer.

4 Q. May I refresh your memory that you in the past gave an opinion

5 like that -- this.

6 JUDGE AGIUS: I think you need to be specific -- yes, Mr. Jones.

7 MR. JONES: Yes, this witness doesn't seem to be having any

8 troubles with his memory. I don't see what the memory-refreshing

9 exercise is supposed to be about.

10 JUDGE AGIUS: He has to be specific. At this point you have to

11 be specific. It's too generic. We could have discussed this with 101

12 purpose even with the accused himself.


14 Q. Do you recall you shared this opinion as a reasoning that -- as

15 one of the reasons that Naser Oric followed the public will in the past

16 with an investigator, giving a statement to an investigator, an

17 investigator of the OTP?

18 MR. JONES: I don't follow the question even. What opinion?

19 What reasoning? It's completely unclear to me.

20 MR. WUBBEN: Your Honour, I clarified it, the specific reason of

21 following --

22 JUDGE AGIUS: I think you have to clarify it a little bit

23 further.

24 Did you ever discuss this with an investigator of the OTP? This

25 is what you are being asked. And if you did --

Page 5399

1 THE WITNESS: [Interpretation] Yes.

2 JUDGE AGIUS: And if you did, do you recall what your position

3 was? This is what you are being asked, basically.

4 THE WITNESS: [Interpretation] My position and conviction at the

5 time was as I have just stated. The phenomenon of arson and burning was

6 rife in and around Srebrenica. I didn't hear Naser Oric say that people

7 should burn things. It was simply something that was happening and there

8 was no way to stop it. When asked why I believed it couldn't be stopped,

9 I provided the same position as I have today. I also added is that one

10 of the reasons may have been that he feared he would compromise the trust

11 of the people and the fighters that he led.


13 Q. And Dr. Mujkanovic, can I assist you in that respect that I will

14 quote from your statement --

15 MR. JONES: Your Honour, Your Honour, I have legal submissions

16 regarding any reference to prior statements. I certainly didn't refer to

17 them at all during cross-examination, so firstly this doesn't arise from

18 cross-examination, but in fact I have lengthy submissions which I would

19 like to make in the absence of the witness. I think it's become timely.

20 MR. WUBBEN: Your Honour --

21 JUDGE AGIUS: I take it if there are submissions, on what, Mr.

22 Jones?

23 MR. JONES: Well, on a party seeking to impeach their own

24 witness.

25 JUDGE AGIUS: I -- so far we haven't an indication that they --

Page 5400

1 that the Prosecution is trying to impeach their own witness.

2 MR. JONES: Well, they're --

3 JUDGE AGIUS: You're saying so.

4 MR. JONES: Yes, because I don't see any memory-refreshing

5 exercise which is justified. This witness hasn't been asked if he --

6 JUDGE AGIUS: No, Mr. Jones. I can assure you that we are more

7 than prepared, the three of us, in case there is even the slightest

8 indication from the Prosecution that they are trying to discredit their

9 own witness.

10 MR. JONES: Right. Thank you, Your Honour.


12 MR. JONES: At that moment I have no submissions.

13 JUDGE AGIUS: I can assure you we are more than prepared. We

14 have been prepared from the very first question.

15 Yes, Mr. Wubben -- I suppose because you come -- I better make it

16 clear, but I see that you are flanked by lawyers coming from common-law

17 jurisdictions who are very familiar with the system.

18 In the adversarial system, a party producing a witness is not

19 allowed to discredit that witness. However, if that witness becomes an

20 unfavourable witness or moves a step further and becomes an adverse or

21 hostile witness, then the party producing that witness can be authorised

22 to cross-examine the witness. This is the procedure that will be used --

23 in other words, you will not be allowed to try and discredit the witness

24 before first getting our authorisation.

25 Mr. Jones, will you explain to her why she's here so that we

Page 5401

1 don't --

2 MR. JONES: Yes, I can do that very briefly.


4 MR. WUBBEN: Your Honour --

5 JUDGE AGIUS: One moment. I mean, we'll give Mr. Jones a chance

6 to --

7 MR. JONES: Yes, I think we have a modus operandi already.

8 JUDGE AGIUS: And the accused if he needs to communicate with you

9 he will pass on papers or call you, whatever.

10 [Prosecution counsel confer]

11 JUDGE AGIUS: Yes, Mr. Wubben.

12 MR. WUBBEN: Yes.

13 JUDGE AGIUS: There is an order in which you can proceed, but you

14 can't just tell him -- lump it on him the way just you've been doing it.

15 So go ahead, but do it in a proper procedure and manner.

16 MR. WUBBEN: And let me please confirm to you I'm aware of the

17 procedure.

18 JUDGE AGIUS: I would imagine so, but I just wanted to make sure.

19 MR. WUBBEN: That's why I used a phrasing of refreshing of the

20 memory and my question "if he recalls so."

21 Q. And as I would like to quote from your statement, Dr. Mujkanovic,

22 my question --

23 JUDGE AGIUS: One moment. This is why -- do you recall having

24 giving a statement to the Office of the Prosecutor?

25 THE WITNESS: [Interpretation] Yes.

Page 5402

1 JUDGE AGIUS: On one occasion only or on more than one occasion?

2 THE WITNESS: [Interpretation] Twice.

3 JUDGE AGIUS: Would the witness please be showed the two

4 statements that we are aware of --

5 MR. WUBBEN: Your Honour --

6 JUDGE AGIUS: -- and I will just clear this up for the

7 Prosecution myself.

8 Am I right in suggesting to you that the first statement took

9 place or was taken in the year 2000?

10 THE WITNESS: [No interpretation]

11 JUDGE AGIUS: Over a period of three days, the 15th of January,

12 the 16th of January, and the 17th of January?

13 THE WITNESS: [Interpretation] I think it was longer. It was four

14 or five days.

15 JUDGE AGIUS: All right.

16 Usher, could you please show the witness the first of these

17 statements. And, Witness, could you please have a look at that

18 statement, the English version, and just confirm to me if you recognise

19 your signature on any of those pages.

20 THE WITNESS: [Interpretation] Yes, I do.

21 JUDGE AGIUS: Do you remember the names of the person

22 interviewing you? Were they Dan Perry and Eileen Gilleece?

23 THE WITNESS: [Interpretation] I remember Dan Perry. I don't

24 remember the other person.

25 JUDGE AGIUS: Could the witness now be shown the second of the

Page 5403

1 statements, the more recent of the two.

2 Did you also give a statement to the Office of the Prosecution on

3 or around about the 4th of June of last year, the year 2004?

4 THE WITNESS: [Interpretation] Yes.

5 JUDGE AGIUS: You are being shown now the English version of that

6 statement. Do you recognise your signature on any of the pages thereof?

7 THE WITNESS: [Interpretation] Yes.

8 JUDGE AGIUS: Was the interviewing officer Mr. Nasir.

9 THE WITNESS: [Interpretation] Yes.

10 JUDGE AGIUS: Now you may proceed, Mr. Wubben.

11 MR. WUBBEN: Thank you, Your Honour.

12 Q. Let me first address then and quote from your statement in 2000.

13 In the English version that's page 18, Your Honour, and there are copies

14 available of the statements I would like to tender. And page 18, the

15 second paragraph, there is referring to the burning to the ground. And

16 in the middle of it one, two, three, the fourth line there is a "mob

17 mentality did occur," referring to that burning.

18 Dr. Mujkanovic, do you -- can you read that part?

19 A. I can't find that particular section, page 18 you said.

20 JUDGE AGIUS: Yeah, but --

21 THE INTERPRETER: Microphone for the President, please.

22 JUDGE AGIUS: Yes, but the page in B/C/S would not correspond.

23 Yes, page 18.

24 Dr. Mujkanovic, page 18, the penultimate paragraph which starts

25 with "Dozvolite da objasnim." And you are being referred to the part

Page 5404

1 which starts "Istina je da je zavladao zakon rulje," et cetera. Read

2 those four lines, please, and I don't know what Dr. Wubben [sic] wants to

3 ask.

4 THE WITNESS: [Interpretation] Very well.


6 Q. My question is: Did indeed a mob mentality occur and did Naser

7 Oric followed that mob mentality?

8 A. Your Honours, I have been saying for six days now that the 80 to

9 100.000 people there were practically illiterate. They had the mentality

10 of the mob. They were driven more by instinct than by reason.

11 JUDGE AGIUS: Your next question, Mr. Wubben.

12 MR. WUBBEN: My next question will deal with the statement of

13 2004. That is ERN English version, Your Honour, 03577298.

14 MR. JONES: Your Honour, may I just for the record state that in

15 terms of memory-refreshing, the statement should really be

16 contemporaneous with events, and this is 2004, some considerable time

17 after events.

18 MR. WUBBEN: Your Honour, in that line may I refer to the fact

19 that this is also a Defence exhibit number under D115, and that concerns

20 the first two pages of this statement.

21 JUDGE AGIUS: Yes, your question, please.


23 Q. My question is --

24 JUDGE AGIUS: First of all I want to make sure that the witness

25 has found the -- has the statement and he's got the B/C/S version. We're

Page 5405

1 talking about of page 1 or what?

2 MR. WUBBEN: We're talking of page 2, paragraph 4.

3 JUDGE AGIUS: Page 2, all right.

4 Did you find it, Dr. Mujkanovic?

5 MR. WUBBEN: Starting with the words --

6 THE WITNESS: [Interpretation] Yes.

7 MR. WUBBEN: [Previous translation continues]... yes.

8 Q. Halfway paragraph 4 of this statement --

9 A. Yes.

10 Q. -- and I quote you in part of that statement: "He," so Naser

11 Oric, "followed the public will." And further on: "He chose the easy

12 way out. He did not want to annoy the people and lose respect."

13 MR. JONES: Your Honour, in fairness to the witness, he also says

14 Naser Oric was unable to stop that happening. I think the whole

15 paragraph should be put to the witness, in fairness, rather than

16 selectively.

17 JUDGE AGIUS: Yes. This is one paragraph which pretty much goes

18 in favour of the accused, which we were going to highlight ourselves

19 during our questioning. I suppose it doesn't vary at all from what he

20 has told us earlier on in answering your question.

21 MR. WUBBEN: Well, it was in addition. He followed -- and those

22 parts I quoted, Your Honour, as reasoning. He followed the public will.

23 I didn't quote the part of being unable, because that's already his

24 testimony. And also the part: He choose the easy way out. That's also

25 a reasoning he did not so far answer my questions.

Page 5406

1 JUDGE AGIUS: That's what his previous testimony meant. If you

2 reduce or distil the essence of it, that's what it amounts to.

3 MR. WUBBEN: With --

4 JUDGE AGIUS: Yes, Mr. Wubben.

5 MR. WUBBEN: With all respect, Your Honour, whenever he stated as

6 a reason he chose the easy way out, that's another reason than being

7 unable or following the public will or --

8 JUDGE AGIUS: But he also says he was unable. In the same four

9 lines, in one instance he says: "Naser Oric was unable to stop that

10 happening," and then he also says that: "He chose the easy way out. He

11 did not want to annoy the people and lose respect."

12 We decide what to do with that and what significance to give it.

13 But more or less it's exactly repetition of what he has told us already.

14 MR. WUBBEN: So it might be possible for him to confirm.


16 Do you confirm? That's what we were going to ask him, Mr.

17 Wubben. Reading this -- these last five lines of that paragraph in your

18 paragraph -- I mean, it's five lines -- it reads as follows: "In fact it

19 was kind of a public pressure to burn down the property left by the

20 Serbs. Naser Oric was unable to stop that happening. He followed the

21 public will. I think he should have been strict enough to stop the

22 destruction of the property during the attacks; however, he chose the

23 easy way out. He did not want to annoy the people and lose respect."

24 Do you remember giving this statement to the officer, to Mr. Nasir?

25 THE WITNESS: [Interpretation] Well, yes, I do remember having

Page 5407

1 said that. That's what I have been saying all the time.

2 JUDGE AGIUS: Yes, Mr. Wubben.

3 MR. WUBBEN: Your Honour, I would like to tender these statements

4 and I have no further questions.

5 MR. JONES: I would object to tendering the statements. As far

6 as the 2004 statement, as has been pointed out, that was a Defence

7 exhibit for an entirely different purpose. I didn't raise the 2000

8 statement in cross-examination and for it to be tendered in

9 re-examination when it wasn't something which arose from my

10 cross-examination --

11 JUDGE AGIUS: That's not even the point. The whole point is:

12 Why do you want to tender these statements, for what purpose? Because

13 certainly they cannot substitute the testimony of the witness.

14 MR. WUBBEN: It can be used as evidence, Your Honour.

15 MR. JONES: Certainly not.

16 JUDGE AGIUS: On what basis?

17 MR. JONES: That would be absurd.

18 JUDGE AGIUS: I'm not used to arguing with counsel, but I mean,

19 this certainly calls for an explanation. What do you mean? In other

20 words you mean to tell us that as far as you are concerned you can stop

21 your re-examination of the witness here, tender his previous two

22 statements, and submit that we also take into consideration at the end of

23 the day as evidence the content of his statement?

24 MR. WUBBEN: No --

25 JUDGE AGIUS: As evidence?

Page 5408

1 MR. WUBBEN: No, Your Honour.

2 JUDGE AGIUS: Okay. So what's the purpose of tendering these

3 statements?

4 MR. WUBBEN: As a clarification to the answers given to the

5 Prosecution upon their questioning in these issues. Okay, Your Honour --

6 Your Honour, please enable me to confer with my colleague.

7 [Trial Chamber confers]

8 [Prosecution counsel confer]

9 JUDGE AGIUS: Are you withdrawing your request, Mr. Wubben?

10 MR. WUBBEN: I would like to withdraw my request.

11 JUDGE AGIUS: All right. Point taken. I think we have made

12 ourselves clear.

13 Have you finished with your re-examination?

14 MR. WUBBEN: Yes, Your Honour.

15 JUDGE AGIUS: I see. I didn't know that.

16 There is a long journey ahead now. So the witness needs to have

17 the two statements in front of him --

18 MR. JONES: Your Honour, as I mentioned last week, that I would

19 have submissions if Your Honours were to ask questions about the prior

20 statement, I would be grateful for the opportunity to do that in the

21 absence of the witness.


23 Let the witness have a short break.

24 MR. JONES: He may even need to return to the hotel room. It's

25 important points of principle which could take half an hour for me to

Page 5409

1 expound.

2 JUDGE AGIUS: I think there's going to be a very short answer to

3 them, Mr. Jones. You have to forget -- or remember that you're not in

4 the United Kingdom.

5 MR. JONES: I always know that, Your Honour, believe me.

6 JUDGE AGIUS: So could you escort the witness to the room,

7 please.

8 [The witness stands down]

9 JUDGE AGIUS: Yes, Mr. Jones.

10 MR. JONES: Yes. Thank you, Your Honour. As I say, there are a

11 number of highly important points of principle which arise from Your

12 Honours are to ask questions on the basis of prior statements. And since

13 it doesn't just concern this witness but future witnesses, I want to set

14 out in detail what our objections would be. And I can set them out in

15 summary and then there are actually ten headings which might be helpful

16 for Your Honours.

17 But I would say in general, in my submission, there are very good

18 reasons why you should not in this case the reasons which are set out

19 which go to the heart of a notion of a fair trial and of the mainly

20 adversarial proceedings of the Tribunal go into these prior statements.

21 Now, if I can preface my remarks by saying this: The witness may

22 have very good explanation for any apparent inconsistencies with prior

23 statements; and to be perfectly honest, we too would like to hear perhaps

24 what those reasons are. But that doesn't change the fact that for the

25 reasons I've set out if the Prosecution and the Defence haven't gone into

Page 5410

1 prior statements, then Your Honours shouldn't either, no matter how

2 curious you are as to what has been said in prior statements.

3 So now in summary, when prior statements haven't been put to the

4 witness by either party - and I say this subject to the Prosecution's

5 exercise of memory-refreshing today - but when during examination-

6 in-chief and cross-examination the statements haven't been put and where

7 the statements are in the exhibits, and I can deal with the 2000

8 statement as not being an exhibit, the 2004 is an exhibit for other

9 reasons, we say it would be wrong for the Trial Chamber to put a single

10 question on the basis of prior statements. Firstly, I would say it would

11 amount to the witness being treated as hostile by the back door and

12 moreover without the constraints and safeguards that would operate if the

13 Prosecution made such an application; and that in essence you would be

14 doing the Prosecution's job for them and being more royalist than the

15 king if you were to do so. And even you might encourage the Prosecution

16 not to make applications to treat witnesses as hostile but to rely on

17 Your Honours to do the job for them. And in any adversarial system, and

18 I'm aware I'm not in my system, but in a broadly adversarial for the

19 Bench to treat a witness as hostile and cross-examine him on previous

20 statements when the Prosecution hasn't made any application to do so --

21 JUDGE AGIUS: Mr. Jones, let me interrupt you. You seem to

22 preface everything on the wrong misconception that you have that, we want

23 or we are trying to treat this witness as a hostile witness. He is --

24 MR. JONES: Not everything is premised on that.

25 JUDGE AGIUS: So I would suggest that you make other submissions

Page 5411

1 but not based on this. We are not even going to deal with this. I am

2 making this clear. This is a misconception you have in your mind.

3 MR. JONES: Of course I have to anticipate that questions might

4 be -- very vigorous questions might be put to him.

5 JUDGE AGIUS: What you might anticipate more before that that I

6 as a Presiding Judge coming from a jurisdiction not much different than

7 yours have more experience than you do.

8 MR. JONES: Indeed, Your Honour.


10 MR. JONES: Nonetheless, I have my submissions.


12 MR. JONES: The second broad point, before I come to my ten

13 subpoints, is that the understanding from the start of the trial is that

14 Your Honours would have prior statements just to familiarise yourselves

15 with the sort of evidence that the witness would be giving so that you

16 would be better prepared to hear his testimony. So for the statements to

17 then be used as a forensic tool, and they haven't been used by the

18 parties, is a different use from one that was ever contemplated. And we

19 indeed almost certainly would have opposed Your Honours having prior

20 statements if we were to think that they might be used by Your Honours as

21 a weapon entering into the gladiatorial contest, as it were, armed with

22 prior statements to beat witness with; and as I say, it may be that

23 that's not Your Honours's intention, but I need to set down the mark as

24 far as that is concerned.

25 Now, to go into the points in detail, and I'll take them briefly

Page 5412

1 as I can. As I say, the prior statements haven't been referred to by the

2 parties, subject to this afternoon which I'll deal with. In many cases

3 where the parties agree to do so, prior statements are put to witnesses

4 and they are made exhibits. And in this trial already that has happened

5 in many cases that that's been done by either party.

6 But the fact that it hasn't been done in this case is an

7 important fact because Your Honour's questions, again as I understand it,

8 are designed to clarify the testimony that has been given or the exhibits

9 which have been submitted and where the witness hasn't gone into his

10 prior statements and where the 2000 statement is not an exhibit, it's not

11 a matter of clarifying testimony which has been given but embarking on a

12 whole other exercise.

13 My second point is, as I say, that the Prosecution has not

14 applied to treat the witness as hostile. Now, that's a matter for them

15 to decide and they may have reasons for why they make that decision. But

16 the consequences of that decision, in my submission, should be accepted

17 by Bench and the consequence is that the "prior statements" drop out as

18 irrelevant. And the question of the hostility or adverse nature of

19 witnesses is a very sensitive one hedged round by all sorts of procedural

20 safeguards, and my concern -- and I'll cite a passage of impeachment of

21 witnesses later. But there's a certain abuse --

22 JUDGE AGIUS: Again, I don't want you to waste your time, Mr.

23 Jones, but you're continually talking about hostile witness; adverse

24 witness; impeachment of witness. There is no one trying to treat the

25 hostile [sic] as adverse or hostile or trying to impeach the witness.

Page 5413












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13 English transcripts.













Page 5414

1 MR. JONES: Well, if the witness is even to be asked: If such

2 and such wasn't true, why did you say that? then that's already --

3 JUDGE AGIUS: Again you're taking it a step further. That's why

4 I told you, please keep in your mind first and foremost that I have more

5 experience than you do. Do you think I'm going to ask the witness why

6 did you say so? Mr. Jones.

7 MR. JONES: I move to my third submission, Your Honour --


9 MR. JONES: -- which is: The paramount concern from all of us is

10 that we get the best evidence from a witness. And another concern is

11 that if the witness is pressed by the Bench, the authority of the Bench,

12 not pressed but asked by the Bench about prior statements that he'll feel

13 obliged to change his testimony and adopt the prior statement rather than

14 to tell the truth. And that applies more broadly --

15 JUDGE AGIUS: Mr. Jones, again, do you think that the Bench is

16 going to ask the witness to change his testimony and adopt the prior

17 statement?

18 MR. JONES: No, of course not, Your Honour. You wouldn't ask him

19 to do such a thing. But if part of his testimony -- part of his prior

20 statement is pointed out to him and the Bench is asking about it, he may

21 be under the impression that he needs to adopt his prior statement due to

22 the authority of questions of that nature coming from the Bench.

23 JUDGE AGIUS: He may feel that he owes us an explanation, but I

24 don't think you can expect at any time from the Bench an invitation to

25 the witness to change his testimony.

Page 5415

1 MR. JONES: No, precisely. It's that the witness will feel that

2 he needs to adopt his prior testimony. And as I said, this concern

3 applies more broadly -- Your Honours may or may not be aware that news

4 agencies reporting on this proceedings in fact gave a lot of prominence

5 to Your Honour's one question last week about a prior statement and on a

6 very important matter about the presence or otherwise of Naser Oric at

7 attacks.

8 Now, other witnesses who may be coming to testify who will hear

9 that will -- may be concerned that they're going to be given the third

10 degree by the Bench, whether or not it's a true perception on their part,

11 and again that they need to stick to the past to what they said in the

12 past to the investigators.

13 JUDGE AGIUS: I would expect that objection from the Prosecution,

14 not from you.

15 MR. JONES: If one has statements --

16 JUDGE AGIUS: It would help the Defence, not the Prosecution.

17 MR. JONES: Not in all occasions, Your Honour. I'll come to the

18 way in which statements are drawn up, which is another point I wish to

19 come to.

20 Fourthly, prior statements are not given on oath. What matters

21 is surely what the witness says here in court. And in this respect

22 statements to investigators differ in -- from two types of statements.

23 In domestic proceedings you have statements that are given to a police

24 with a perjury warning. For example in my system, Section 9 of the

25 Criminal Justice Act of 1967 the witness is warned of the consequences of

Page 5416

1 false testimony. We have an equivalent which is Rule 92 bis --

2 JUDGE AGIUS: But that is not the case.

3 MR. JONES: Exactly. So we have "statements" which were given

4 not on oath and only to ICTY investigators --

5 JUDGE AGIUS: Mr. Jones, there is no chance, not even a fraction

6 -- a fraction of a digit chance that his prior statements will replace

7 the testimony that he has given here.

8 MR. JONES: That's clear, Your Honour.

9 JUDGE AGIUS: That's --

10 MR. JONES: Yes, yes.

11 My fifth submission is that the prior statement may well have

12 been put together by asking leading questions, but spinning what was said

13 into something more serious than was actually said. We have actually

14 --even before that we have the problems of interpretation. But even here

15 in court - and it's not meant as a major criticism of my learned friends

16 - but they will ask leading questions on occasions, I can imagine how

17 greater the risk of ICTY investigators spending days with the witness,

18 asking a serious of leading questions, and then having a statement drawn

19 up on that basis, which is very far from what the witness actually said.

20 So again there is the danger if the parties haven't in an adversarial

21 setting got into that issue for the Bench to pose questions on something

22 which is so uncertain, which can be so uncertain.

23 And we suspect that in this case that may be what's happened,

24 given that the witness gave the same account that he's given here in the

25 Telering programme, which we saw the transcript of, and in the interviews

Page 5417

1 to Sheri Fink for the "War Hospital" book and it's the statements to the

2 ICTY investigators which are the anomaly. We saw already one part of the

3 2000 statement which was self-contradictory in the sense of, talking

4 about an inability to stop something from happening and then saying it

5 was the easy way out. We have another example on page 15, sixth

6 paragraph of the 2000 statement, where the witness appears to be saying

7 that all radio users had to be authorised by Naser Oric and the radio

8 operator was always present, and then in the next line: I used the radio

9 without Naser's permission to contact my wife in Tuzla. A

10 straightforward contradiction which an intelligent witness presumably

11 never, never said.

12 At another part, page 17 of that statement, the witness is stated

13 as having said: "Each soldier would decide personally whether to take a

14 prisoner or to shoot a prisoner. It was also the soldier's choice to

15 decide what manner they chose to kill someone."

16 Now that was such an absurd statement that in fact in the

17 proofing notes which we received from the Prosecution the witness had

18 corrected that. We have the proofing notes.

19 JUDGE AGIUS: Yes, that's what we don't have, the proofing notes.

20 MR. JONES: That comes to my other point, Your Honour. For the

21 exercise to be meaningful, if you don't have the proofing notes --

22 JUDGE AGIUS: No, we don't have the proofing notes. In fact, I

23 was going to ask for them straightaway if they exist.

24 MR. WUBBEN: I will give you a copy, Your Honour.

25 MR. JONES: Because in the proofing notes --

Page 5418

1 JUDGE AGIUS: That's very important, Mr. Jones. That's the only

2 thing with sense -- I mean in inverted commas, valid, as a valid argument

3 that you have submitted from the whole list because you have pre-empted

4 what the exercise that we are going to embark upon, not knowing what we

5 are going to do.

6 MR. JONES: Yes, Your Honour, well hopefully I'll start making

7 more sense for Your Honour.

8 JUDGE AGIUS: Well, very simply put, are going to go through

9 certain parts of these two statements and simply ask the witness whether

10 he recalls having made that statement, full stop. And then if he wants

11 to make any comments, he will make them. We will not invite him to make

12 any comments unless he chooses to. But I would definitely -- If there

13 was during the proofing there were proofing notes, that will make our

14 exercise much easier. We want to see them.

15 MR. WUBBEN: Your Honour, we will provide them. We will make

16 copies of them and provide them.


18 MR. WUBBEN: Now, Your Honour.

19 MR. JONES: That was my seventh point which I was coming to.

20 JUDGE AGIUS: That's a very valid point, Mr. Jones. You don't

21 need to labour it.

22 MR. JONES: My sixth point is -- concerns regarding the specific

23 investigators involved in taking this statement and we're not prepared

24 and we think the Bench should not be prepared to accept the bona fides of

25 all persons employed by the OTP --

Page 5419

1 JUDGE AGIUS: That's not an issue. Again, that's why I'm

2 repeating -- I'm telling you what the exercise is going to be.

3 MR. JONES: It's just we have evidence from Ms. Manas that Ms.

4 Gilleece was actually negligent on one occasion of dealing with documents

5 not being if'd and miff'd. I have the reference for that.

6 JUDGE AGIUS: Dr. Mujkanovic has got a brain like you and I have,

7 and if there is anything in that statement that he doesn't agree with, I

8 suppose he can say, I'm sorry, Judge, that's not correct. I never said

9 it. Full stop. And we won't ask him questions.

10 MR. JONES: It may be for that point, Your Honour, it's

11 nonetheless that we do need to submit to Your Honours at some point so

12 you know what weight to give to statements which are given, but I agree

13 that's perhaps not a matter for this witness.

14 My seventh point is that you don't have proofing notes and we'll

15 dealt with that.

16 JUDGE AGIUS: That's important and we need them.

17 MR. JONES: The eighth point is really a question of fairness to

18 the witness. This witness has not just made two prior statements, he's

19 made lots of statements. He's made statements in the Telering programme,

20 to Sheri Fink for the "War Hospital" book. So for the exercise to be

21 meaningful, we would have to ensure also that Your Honours have all his

22 prior statements so that you're not negatively influenced against the

23 witness.

24 JUDGE AGIUS: Mr. Jones, his prior statements are not going to

25 substitute for his viva voce testimony before this Trial Chamber. That's

Page 5420

1 the rule we follow and we're not going to budge on that. What he may

2 have stated in other instances could have been used by you parties during

3 his testimony; it wasn't. And we are just going to confirm that he may

4 have made such prior statements. Then of course, I mean just to be fair

5 with both parties, particularly with the Defence, if after our

6 questioning you think that you need to put some questions to the witness,

7 then you're of course -- what we are going to do is just clarify some

8 issues. Then of course if you're taken by surprise, we will remedy that.

9 But that's the position.

10 MR. JONES: Your Honour, I come to a ninth point which is I

11 submit the most -- perhaps the most persuasive which is as I said at the

12 outset is the understanding Your Honours would have prior statements just

13 so you could familiarise yourself with the evidence. It was discussed at

14 the pre-trial conference, and I can pass up copies of what is said on

15 that occasion. I'm afraid it's three pages each and I couldn't staple

16 them. But if I could start reading what Your Honour said on that

17 occasion and it's the 28 September, 2004:

18 "This brings me to an issue that I know was raised during the 65

19 ter meeting on which I will dwell very shortly. Each of these witnesses,

20 with the exception of the experts, et cetera, would have given statements

21 to the Prosecution in the course of the years that preceded this trial.

22 Now, I come from a jurisdiction where we would hear the evidence of the

23 witness and we would not have at our disposal any witness statement made

24 prior to the trial. As I said, that makes sense, first of all, where it

25 is the rule, as it is in my country. And it makes sense also where you

Page 5421

1 have a procedure, a system in place which would ensure in any case that

2 when the case comes to trial, the Presiding Judge, with or without a

3 jury, would have at least the committal proceedings at his disposal."

4 THE INTERPRETER: Would Counsel kindly slow down for the benefit

5 of the interpreters, please.

6 MR. JONES: Yes, my apologies.

7 "Over here, you get a list like this showing Miladin Sic [phoen]

8 giving evidence. It's true, we also have very short, succinct summary of

9 what supposedly this gentleman is supposed to testify upon. But we come

10 here and basically we are the last -- the least persons to know what this

11 gentleman is going to testify about.

12 "This is a matter that has been discussed at length amongst us

13 Judges," et cetera. And then I drop down. And then explaining the

14 reason why Your Honours wish to have the witness statements:

15 "First of all, certainly not because we want to influence

16 ourselves negatively. We are three expert, experienced Judges, I mean,

17 so we are not a jury. We are -- in other words, the reason why we

18 require these to be made available is that we know beforehand what the

19 witness is going to testify about, what he stated to the offices of the

20 Prosecution," et cetera.

21 So two points arise from that: Firstly, that is the reason it

22 was an aid for Your Honours, not a forensic tool to be used in the

23 proceedings. And if the use changes we feel that we have been misled,

24 obviously not deliberately. But we are confronted with this situation

25 which is not something which we agreed on and which we would have opposed

Page 5422

1 at the outset if we knew the statements would be used as a forensic tool.

2 And Your Honour expressly said there the purpose was not to

3 influence yourselves negatively. But I fear that Your Honours' minds are

4 influenced negatively against this witness and that you've stated that

5 things he's said call for an explanation --

6 JUDGE AGIUS: Call for a clarification.

7 MR. JONES: An implicit criticism that the witness has been

8 inconsistent.

9 JUDGE AGIUS: If you prefer to put it that way, I suggest to you

10 that is the only wrong way you can put it. I never said that.

11 MR. JONES: I would submit that the prejudice can only be avoided

12 by the Trial Chamber if Your Honours banish the statement from your minds

13 once it hasn't been raised in evidence by the parties.


15 MR. JONES: And that really comes to my tenth point which as Your

16 Honour said explicitly at the hearing of the 9th of December, 2004, page

17 2843, these proceedings are broadly adversarial; and of course it's an

18 ongoing debate to what extent their inquisitorial features. If the prior

19 statements are to be used by the Bench when the parties haven't entered

20 into a discussion or haven't entered into putting to the witness parts of

21 his statement, then they're been used in an inquisitorial way by the

22 Bench and that's means a very different procedure from the one which is

23 so far followed.

24 So far, Your Honours, in these proceedings I've sought with

25 various witnesses to have shown inconsistencies in prior statements, and

Page 5423

1 to be perfectly honest, I've been given short shrift by the Bench on

2 various occasions when I have done that. Fair enough. It's an

3 adversarial proceeding; I'll take those points and the Prosecution will

4 take those points. We've never asked Your Honours to intervene on our

5 behalf to show that a Prosecution witness has made inconsistent

6 statements and we wouldn't expect you to intervene on the Prosecution's

7 behalf and to do their job for them of seeking to show prior

8 inconsistencies.

9 And Your Honours, that arose, Your Honour's statement that the

10 proceedings were broadly adversarial, when as you may recall my

11 colleague, Ms. Vidovic, was cross-examining Mr. Popovic about the

12 provision of documents to Mr. Nikolic. And she opened the floor for Your

13 Honours to ask questions because it seemed it might be an important issue

14 of an attempt to interfere with the administration of justice. Your

15 Honour said: We're happy with what he said; this is an adversarial

16 system. Well, if it is adversarial, then fine. But that means that if

17 neither party has dealt with prior statements in the way that Your

18 Honours propose to, then Your Honours should not do so either.

19 In fact -- I mean, if Your Honours only conduct that exercise

20 when there has been apparently unfavourable evidence given in prior

21 statements weighing in, to all appearances, on the side of the

22 Prosecution, that would give rise to grave concerns about the appearance

23 of a fair trial. Really, in fact in accordance with the principle in

24 dubio pro re, you should come to our aid, although of course we don't ask

25 you to, but the appearance of justice is terribly important.

Page 5424

1 So in short, I would ask Your Honours to exercise judicial

2 restraint in this instance. We all may be curious why things appear in

3 the statement which were not said here, but I would ask Your Honours to

4 overcome your curiosity and in a broadly adversarial system, accept that

5 if the parties haven't dealt with it, Your Honours shouldn't either.

6 Unless I can assist you further, those are my submissions.

7 JUDGE AGIUS: Thank you, Mr. Jones.

8 Do you have any submissions in regard, Mr. Wubben?

9 MR. WUBBEN: Very short, Your Honour. Though it might have an

10 answer of an adversarial system in Rule 89 (D) it is clearly confirmed

11 that Judges can put in any stage of the trial any questions they like to,

12 so with puts a kind of initiative role on the Bench whenever they want to

13 clarify some issue. And I rely on the discretion from Your Honour. I

14 said 89, it's 85 --

15 JUDGE AGIUS: It's 85 (B).

16 MR. WUBBEN: 85 (B), Your Honour.


18 MR. WUBBEN: Further, when it comes to the differences within the

19 adversarial system, it might be so that there is a very broad discussion

20 possible between Defence counsel and myself as it comes to a pleading

21 that though it might be adopted as such in the -- as a general rule,

22 there is certain a discussion also among criminal-law system as well as

23 in the Tribunal to give some weight at least to prior statements given by

24 witnesses. And that's even confirmed as such in the Akashu [phoen]

25 Appeal Chamber judgement of the 1 June 2001, where it is stated that a

Page 5425

1 prior statement did indeed have some weight, albeit considerably less

2 than in-court testimony. There is more to argue in that respect. But

3 mainly I rely on the discretion of this Trial Chamber to rely on the --

4 Rule 85 to enable the Bench to put questions forward to the witness as to

5 clarify an issue. And will you please bear me a moment.

6 Thank you, Your Honour.

7 JUDGE AGIUS: Yes, I just remind both of you that even in the

8 purely adversarial system, although the Judges very rarely intervene,

9 there is the inherent right to ask questions and, provided it's after the

10 examination-in-chief and the cross-examination, to ask questions which --

11 clarifying questions, provided that the parties then in that case are

12 given the opportunity to put further questions should it be the case.

13 But our system, although being broadly adversarial - of course I

14 can confirm that - envisages a mixture of the two systems and definitely

15 not only incorporates in the rules the specific right of the 85 (B) of

16 the Judge at any stage to put questions to the witness, but most

17 importantly of all - and this is where the concept of having these prior

18 statements available for the Judge arises from in this instant - that we

19 are called upon to give a reasoned decision. And there is no way we can

20 reach a reasoned decision if we have not at our disposal at least the

21 prior statements of witnesses. That is as almost a sine quo non. Having

22 said that, it's definitely not the role of the Judges to take over the

23 Prosecution's role or the Defence counsel's role; that's your role.

24 As required by our procedure, we have given you all the time to

25 have -- conduct your examination-in-chief, interrupted you very little;

Page 5426

1 and we have given you, Mr. Jones, also all the opportunity to

2 cross-examine the witness, interrupting you, again, very little and only

3 if as and when necessary.

4 You are also overlooking paragraph (F) of Rule 90 which is

5 perhaps -- which perhaps crowns it all and which entrusts on the Tribunal

6 the important role, primary role, of ascertaining the truth. There is no

7 way we can ascertain the truth if we accept everything that you have

8 submitted, Mr. Jones. We will of course exercise all the restraint that

9 is called for in the circumstances, taking into consideration of course

10 that the Prosecution did not try to impeach or discredit their own

11 witness. Neither will we, because it's not our intention to try and

12 discredit this witness. That could have been the way chosen by the

13 Prosecution if they felt they ought to discredit him. But obviously we

14 take it if they didn't -- they did not feel the need to discredit that

15 witness, and that of course goes on the record.

16 The same applies to your cross-examination. I mean it's -- you

17 put all the questions that you needed to put. Obviously the information

18 that the witness has given calls for some clarification. And what is --

19 what we are going to do is: We are going to make use of his previous

20 statement, which are of great help to us in leading us and giving us an

21 idea what kind of a clarification we can ask or we can seek from the

22 witness.

23 Of course I repeat: Whether the witness is a credible witness or

24 not will ultimately be something that we are charged with deciding. But

25 we cannot decide whether he is a credible witness or not and whether he

Page 5427

1 is credible in whole or in part or whether he is not credible at all, if

2 we are not given the opportunity to ask for some clarifications from him.

3 So that's how we are going to proceed.

4 MR. JONES: May I, Your Honour?


6 MR. JONES: Just for the record I do want to reiterate,

7 notwithstanding what Your Honour said, my absolute opposition to the

8 course which Your Honour will pursue. I need to preserve that,

9 obviously, for appeal. My point really is that there is no need for

10 clarification in light of what he said; it's only in light of the prior

11 statements, and they were never intended for that purpose. That's my

12 submission.

13 JUDGE AGIUS: But thank God we have them, because otherwise we

14 wouldn't have even realised that there were things that needed to be

15 clarified.

16 MR. JONES: My second concern, if I could just place it on the

17 record: The exercise is going to be selective and that you can't go

18 through a 30-page statement. And if this witness is only asked about

19 incriminating things he said against our client the appearance to the

20 public may be an attempt to resurrect bad evidence --

21 JUDGE AGIUS: Why, why, why, do you bring that issue -- raise

22 that issue at all? Who said we're going to be selecting, and even --

23 You're becoming paranoiac. He said a lot of things against your client

24 on matters that are not related to this indictment. Do you think we are

25 going to ask the witness on that?

Page 5428

1 MR. JONES: No, indeed, but on matters relevant to the

2 indictment.

3 JUDGE AGIUS: Of course.

4 MR. JONES: Let me put it this way, Your Honours: I just would

5 implore Your Honours to always ask questions that are fair to us and the

6 Prosecution.

7 JUDGE AGIUS: You will see for yourself that we will be asking

8 the witness to confirm statements that he made to the Office of the

9 Prosecution that go exclusively in your client's favour, which have not

10 been mentioned either by you or by the Prosecution.

11 MR. JONES: Then I stand to be corrected, Your Honour.

12 JUDGE AGIUS: Yes, but we will ask him other questions, too.

13 So could we have the proofing notes, please.

14 MR. WUBBEN: Yes, Your Honour. Here are the copies.

15 JUDGE AGIUS: And I suggest that we take a short break to read

16 them because if they clarify certain matters that we intended -- we can

17 go through them now because I know exactly what questions we are going to

18 put.

19 We will have a short break. Can I ask the cooperation of

20 everyone and have a 20-minute break instead of a 25-minute break -- I

21 can't see behind the dark? Yes. The technicians?

22 THE REGISTRAR: It's fine, Your Honour.

23 JUDGE AGIUS: So we'll withdraw for 20 minutes and we'll resume

24 soon after.

25 --- Recess taken at 3.31 p.m.

Page 5429

1 --- On resuming at 3.52 p.m.

2 [Trial Chamber confers]

3 JUDGE AGIUS: Just -- Usher, you could -- could you escort the

4 witness in, please. In the meantime just for the record I know because

5 I've already been given the information that it transpired during the

6 break that in spite of my exhortations and instructions that the

7 interpreter put at your disposal would be someone who has never worked

8 for the Prosecution. I have been informed that there is no such

9 interpreter in this Tribunal and that the lady who is sitting next to you

10 has done some interpretation work with the Prosecution; however she is

11 now with the registry and she is bound by secrecy, confidentiality. So

12 for the record I wanted to know -- wanted to make sure that there is no

13 substantial objection from your part. And I understand there isn't.

14 MR. JONES: No, Your Honour. I have no objection whatsoever. I

15 trust entirely in the professionalism and ability of the interpreter and

16 am very grateful to CLSS and OLAD for providing that at such notice.

17 JUDGE AGIUS: I thank you and I also thank CLSS and appreciate --

18 because I understand that I was asking for the impossible.

19 Yes, please escort the witness in, please.

20 [The witness entered court]

21 Questioned by the Court:

22 JUDGE AGIUS: Dr. Mujkanovic, first of all my apologies to you

23 for the interval that we had but before I undertake this exercise on

24 behalf of the other two Judges and on my own behalf, there were some

25 submission to be heard. We have heard those. Of course, the submissions

Page 5430

1 did not concern you, so don't worry about what I have just said. I just

2 want to express my regret that you had to wait in the room for some time.

3 Yes, what's the problem? We have the same problem as before, so

4 that means that I have to --

5 Can I proceed? I did not see the words scrolling. So there must

6 be a problem.

7 Dr. Mujkanovic, be patient with us. Bear with us.

8 All right.

9 So I don't think I need to repeat what I said. The witness has

10 heard me.

11 As I said, I will be putting the questions to you, questions that

12 I prepared but also questions that the other two Judges prepared. We

13 agreed I would put them all myself for practical purposes so that we get

14 through this exercise as quickly as possible.

15 One question that I meant to ask you I have already asked you and

16 you have already given the answer. You made two statements: One in 2000

17 and one in 2004 and you have seen both statements. I want to make sure

18 that you still have them in front of you.

19 A. Yes.

20 JUDGE AGIUS: The first starts with the following declaration:

21 "I give this statement of my own free will and voluntarily. I have not

22 been made any promises nor have I been forced to make this statement by

23 any person or entity." Are these your words or are these the words of

24 the person who was drawing up the statement?

25 A. The person drawing up the statement.

Page 5431

1 JUDGE AGIUS: But were you sent for or did you just appear and

2 volunteer a statement? Were you sent for by the Office of the Prosecutor

3 or did you just go to find an officer of the Prosecution and told him or

4 her I want to make a statement?

5 A. I'll explain how it was. It was back in 1999.

6 JUDGE AGIUS: [Microphone not activated]

7 A. I received a phone call from a person who said he wanted to meet

8 me. I asked what it was about and he said there was a humanitarian

9 organisation that wanted to speak to me. I asked: What humanitarian

10 organisation? And he said, they're from The Hague. We wouldn't like to

11 explain anything else.

12 The first time they came there were two men and one woman. They

13 spoke to me for half an hour informally and they said they would come to

14 see me again. That was in late 1999. They returned. We spoke for a

15 longer time, perhaps for two hours, and they said --

16 JUDGE AGIUS: One moment. Because again, I want to get through

17 this exercise as quickly as possible. In other words, it's not you who

18 looked for the Office of the Prosecutor; it's the Office of the

19 Prosecutor that looked for you?

20 A. No, no, no. They looked for me on several occasions.

21 JUDGE AGIUS: That's number one. And do you confirm what is

22 stated here, that you were not made any promises? And that --

23 A. I can confirm that, yes.

24 JUDGE AGIUS: Now please go to - this is going to be a problem

25 now - page 10 of your 2000 statement. You mention there Major

Page 5432

1 Rizvanovic's 16th Muslim Brigade. Later on you tell us that it was

2 established in Zagreb. Where was it based? It was established in

3 Zagreb, as you tell us; but where was it based?

4 A. It was based in Tuzla.

5 JUDGE AGIUS: Tuzla. And my other question in relation to this:

6 It says: 16th Muslim Brigade. Does it mean that there were at least 15

7 other Muslim brigades or not?

8 A. It means nothing. It means nothing. It's just what someone

9 decided to call it, probably the person who established it. It was set

10 up in Zagreb by refugees who ended up in Zagreb, refugees from the

11 Podrinje area. They were given uniforms and transferred to the zone of

12 responsibility of the 2nd Corps --

13 JUDGE AGIUS: Try to answer my question. These are very simple

14 questions that I am going to put to you and they only require or call for

15 a very simple answer. My question was: I see here "16th Muslim

16 Brigade." That calls for some clarification. Does that mean that there

17 were at least 15 other brigades? And if there was a 16th, was there a

18 17th and 18th that you know of?

19 A. No.

20 JUDGE AGIUS: Okay. And that leads me to my next question that I

21 was going to ask you, but again I will not ask you because this is the

22 114th now Eastern Bosnia Brigade. So could you please go to page 12.

23 A. Yes, I've had a look.

24 JUDGE AGIUS: And page -- sorry, not -- yes, page 12, last

25 paragraph, which starts "Oko 4.00 sata 5 augusta 1992." You say: "On

Page 5433

1 5th of August, 1992, around 4.00 p.m. we reached Susnjari. Naser Oric

2 was told over the Motorola radio that I arrived with my group. Oric

3 radioed back that I should wait for him."

4 How do you know this? First of all, did you make this statement

5 to the officer interrogating you? Do you recall making this statement?

6 A. I can't specifically recall saying this. I know that I was told

7 to wait for Naser Oric.

8 JUDGE AGIUS: All right. If you don't recall, you don't recall.

9 Next question. You say -- you continue reading: "Naser Oric arrived in

10 a small truck with 15 to 20 soldiers and Zulfo Tursunovic was also with

11 him."

12 Do you confirm having said so to the Office of the Prosecution?

13 Do you remember?

14 A. Yes.

15 JUDGE AGIUS: "We drove off in a small truck. I was in the cabin

16 of the truck with Oric, Tursunovic, and the driver was Mevludin Salkic."

17 Do you remember giving this information of the Office of the

18 Prosecutor?

19 A. Yes.

20 JUDGE AGIUS: Then you say: "At about seven we reached

21 Srebrenica. We went to Naser Oric's command post. The command post was

22 located at the PTT building which was the post office."

23 Do you remember giving this information to the Office of the

24 Prosecutor?

25 A. I can't specifically remember the wording, but that was what

Page 5434

1 happened. We were driven to the post office.

2 JUDGE AGIUS: All right. Could you now please go to the next

3 page, page 13, and the paragraph starts with [B/C/S spoken]. The fourth

4 paragraph from the bottom.

5 A. I can't find that.

6 JUDGE AGIUS: Page 13, fourth paragraph from the bottom [B/C/S

7 spoken]. Are you on page 13? Can --

8 A. Yes. It's all right. I found it.

9 JUDGE AGIUS: I'm going to read it and then you just confirm to

10 me the following. "I will tell you about our military. April 1993 was

11 the time of demilitarisation."

12 Do you remember saying this to the officer of the Prosecution?

13 A. Yes.

14 JUDGE AGIUS: And then you continue: "Naser Oric's command

15 compromised 12.000 men."

16 Did you ever say this to the officer of the Prosecution?

17 A. I probably said that. That was the usual number mentioned, about

18 12.000 people.

19 JUDGE AGIUS: And then you continue: "At that time everyone was

20 a soldier."

21 My question -- first of all, do you confirm having said so to the

22 person interviewing you?

23 A. It's very difficult for me to confirm that at this point. I

24 can't specifically remember, and therefore I can't confirm.

25 JUDGE AGIUS: That's fair enough. Let's move to the next: "For

Page 5435

1 example, it included the War Presidency, my staff, and those who were

2 really fighting. The actual number of soldiers in the fighting was

3 approximately 10.000 soldiers."

4 Do you remember having stated this to the officer interviewing

5 you?

6 A. I probably did.

7 JUDGE AGIUS: If you probably did, is there a reason why in 2000

8 you had no problem with using the word "soldiers," but you did have a

9 problem using the word "soldiers" here? There were fighters; there were

10 no soldiers, but fighters? Would you correct, in other words, what is

11 written here?

12 It's a clarification, not a contradiction; let me make it very

13 clear to you. Because you explained to us what you meant during your

14 testimony. But I want to make sure that you still mean the same.

15 A. I never used the term "soldier," and this was not a term used in

16 Bosnia and Herzegovina. We spoke about fighters, not about soldiers. It

17 may be a matter of interpretation, but certainly "soldier" was not a term

18 that was used ever.

19 JUDGE AGIUS: All right. I thank you for that explanation and

20 clarification, Dr. Mujkanovic, and I move to the next. You need to go to

21 page 14 in your text, please.

22 A. [No interpretation]

23 JUDGE AGIUS: And the first paragraph [B/C/S spoken].

24 A. Yes.

25 JUDGE AGIUS: The last sentence of that paragraph, you say with

Page 5436

1 regard to the wounded prisoners that came to your hospital: "I did not

2 see any signs of torture or abuse on any of the prisoners that were taken

3 to the hospital and I treated each one of them."

4 Do you confirm having stated this to the officer of the --

5 officer from the Office of the Prosecution interviewing you?

6 A. I confirm that.

7 JUDGE AGIUS: Yes. Next paragraph. [B/C/S spoken].

8 A. Yes.

9 JUDGE AGIUS: "I had a condition that no one wears a weapon in

10 the hospital."

11 A. Yes.

12 JUDGE AGIUS: Do you remember saying this to the -- stating this

13 to the officer interviewing you?

14 A. I probably stated that.

15 JUDGE AGIUS: And then according to this statement it goes on as

16 follows: "Sometimes Naser Oric would come into the hospital with his

17 weapon on. I spoke to him about being a role model, but he always

18 carried a gun; it's simply how Naser functions."

19 Do you remember stating this to the officer interviewing you?

20 A. I do, yes.

21 JUDGE AGIUS: Then you add: "To my knowledge Naser Oric never

22 went to the rooms to see the patients that were prisoners."

23 Do you remember having made this statement to the officer

24 interviewing you?

25 A. I probably said that.

Page 5437












12 Blank page inserted to ensure pagination corresponds between the French and

13 English transcripts.













Page 5438

1 JUDGE AGIUS: Did Mr. Oric ever give you a reason for this or did

2 you ever discuss it with Mr. Oric?

3 A. No.

4 JUDGE AGIUS: Could I now ask you to go, please, to the same

5 page, the penultimate paragraph, the one that starts with [B/C/S

6 spoken] --

7 A. Yes.

8 JUDGE AGIUS: And go to the last part which --

9 A. Yes.

10 JUDGE AGIUS: Where it starts [B/C/S spoken]. Okay.

11 A. Yes.

12 JUDGE AGIUS: And according to the person who drew up this

13 statement, you said the following: "He then said: Here is the head of a

14 Chetnik."

15 Do you remember telling the officer interviewing you this or not?

16 A. I probably said this.

17 JUDGE AGIUS: Dr. Mujkanovic, I will be asking you this kind of

18 questions to confirm whether you have told the Prosecution. If you feel

19 at any moment that you need to clarify matters or that this is not

20 exactly how you put things to the person interviewing you at the time,

21 please draw our attention immediately and I will authorise you to say

22 what you have to say.

23 A. Fine, Your Honour.

24 JUDGE AGIUS: And then you condition: "He took the head and

25 paraded it around the town."

Page 5439

1 Do you remember telling this -- saying this to the officer

2 interviewing you?

3 A. I don't. I don't, Your Honour.

4 JUDGE AGIUS: And then you continue: "I know Naser Oric was on

5 that offensive," in other words the offensive of the 8th of August.

6 Do you remember saying this to the officer of the Prosecutor?

7 A. No, I don't remember. I didn't know at the time whether he was.

8 JUDGE AGIUS: And then you say: "I do not know if Naser Oric saw

9 the head."

10 Do you remember stating this to the officer?

11 A. If I may be allowed to clarify here.

12 JUDGE AGIUS: Yes, go ahead.

13 A. You see, this statement here, I was talking to Mr. Perry for four

14 or five days about many different things. He probably took only what he

15 needed from my account. His question may have been: Did Naser Oric see

16 that head? I can hardly be expected to remember the questions he asked

17 five years ago. If you take it out of the context, then that's what I

18 appear to be saying. And my answer is: I don't know if Naser Oric saw

19 the head. Much like I'm answering your questions now, he asked me all

20 kinds of questions. And this went on for days. If my statement was

21 complete, it would probably run into hundreds of pages.

22 Here we see things taken out of their natural context.

23 Therefore, it's very difficult for me to say now whether my specific

24 wording was like this or not. I know there were many questions, many

25 allegations, being made and I was being asked what my position was on a

Page 5440

1 number of different matters.

2 JUDGE AGIUS: Thank you. And then you said according to this

3 statement: "The head had dark-coloured hair, but it is hard to say if it

4 was black or brown since it was dark and the head was bloody."

5 Do you remember saying this to the officer?

6 A. Well, yes, that's what I saw and that's what I've said here, too.

7 JUDGE AGIUS: All right. Let's go to the next paragraph where

8 you mention Kemo. I'm only interested in the last sentence of that

9 paragraph which you find in the next page on page 15.

10 A. Yes.

11 JUDGE AGIUS: And according to this statement you told the

12 officer: "Kemo was one of the men in Naser Oric's circle."

13 Do you remember telling this -- saying this to the officer

14 interrogating you or interviewing you?

15 A. I couldn't have put it that way, Your Honour, because Kemo didn't

16 belong to anyone.

17 JUDGE AGIUS: Yes. Next paragraph. Can you follow me it starts

18 with "Nakon ofanzive koja he izvrsena," top of page 15.

19 A. Yes, yes.

20 JUDGE AGIUS: It reads as following: "After the offensive that

21 occurred on the 8th of August, 1992, a few days later, maybe the 11th of

22 August, Naser Oric, Akif Ustic, Zulfo Tursunovic, Hamdija Fejzic, some of

23 Naser's men and I had a meeting at the PTT building."

24 Do you remember saying this to the officer?

25 A. I remember having said that.

Page 5441

1 JUDGE AGIUS: It goes on: "I told them I need to be allowed to

2 prepare for any future offensives."

3 Do you remember saying this to the officer?

4 A. I remember that this is an issue that I discussed, among other

5 things.

6 JUDGE AGIUS: Thank you. Next paragraph: "Naser Oric and Akif

7 Ustic are the men who made the decisions."

8 Do you remember saying this to the officer interviewing you?

9 A. No, not in these words.

10 JUDGE AGIUS: In what words would you have said -- anything that

11 you would like to tell us?

12 A. I'd say that this has been taken out of context. I also spoke

13 about what I have testified about here. Naser Oric was the commander of

14 the defence of Srebrenica and Akif Ustic was a sort of deputy of his.

15 That's how he would call himself. He said he was the deputy of the

16 command of Srebrenica.

17 As to the question of who took decisions about such matters, I

18 suppose that that was the sort of answer I gave.

19 JUDGE AGIUS: Okay. Thank you. Then it continues: "Hamdija

20 Fejzic did not make decisions although he was the President of the

21 Executive Council in the War Presidency in Srebrenica."

22 Do you remember saying this to the officer interviewing you?

23 A. Again, the question was about Hamdija Fejzic, about the role that

24 he played. I said he was the President of the War Presidency of the

25 Executive Committee in Srebrenica. And when asked if he took decisions

Page 5442

1 of any kind, I replied that he didn't take any decisions, that he

2 couldn't take any decisions.

3 JUDGE AGIUS: Okay. I thank you. Next paragraph. It starts

4 with this sentence: "I attended meetings with these men often."

5 Do you remember having said this to the officer interviewing you?

6 A. Not in this manner, Your Honour.

7 JUDGE AGIUS: In which manner would that be then?

8 A. I said that since the hospital was opposite the post office I

9 would often go to the post office when I had breaks and meet certain

10 individuals there and speak to them. But I didn't attend official

11 meetings of any kind there.

12 JUDGE AGIUS: Okay. I thank you. Further down in the same

13 paragraph you have this -- these three sentences or four sentences which

14 are joined, so I will read the entire four lines.

15 "My personal role was to after the first offensive work on

16 convincing the people in power to establish a properly functioning

17 military organisation. The operational headquarters had to be

18 established to know what everyone should be doing and who was responsible

19 for what."

20 Do you remember having said this to the officer interviewing you?

21 A. I remember having spoken about this, and in fact this is how it

22 was.

23 JUDGE AGIUS: Then it continues: "Naser didn't like that. He

24 perceived me as competition."

25 Do you remember saying this to the officer of the Prosecution --

Page 5443

1 of the Prosecutor?

2 A. No, Your Honour, I don't remember that because I never spoke to

3 Naser about that. Never.

4 JUDGE AGIUS: The next paragraph reads as follows: "I told Naser

5 Oric that we should ask the professional soldiers under his command to

6 help us run the affairs of the military in Srebrenica. I knew that there

7 were four army officers that had finished the military academy and that

8 there was four reserve officers from the former JNA. Naser would not

9 allow these people to be part of the organisation, stating that they had

10 to prove themselves in the field. We argued over this point, but I could

11 not change his mind."

12 Did you ever make this statement to the officer interviewing you?

13 Do you recall making this statement?

14 A. As I have said, I never spoke to Naser Oric about the formation

15 of the operations staff. I spoke to this -- I spoke about this to

16 Hamdija Fejzic and to others about forming the operations staff, and they

17 told me that there were four officers who had just graduated. They were

18 in Srebrenica, and they were reserve officers of some kind.

19 JUDGE AGIUS: All right. Now, same page, page 15, the paragraph

20 before the last. [B/C/S spoken] 15 September 1992.

21 A. Yes.

22 JUDGE AGIUS: "On the 15th of September, 1992, we had our first

23 meeting at operational headquarters. The first offensive planned by the

24 operations headquarters was the Podravanje area."

25 Do you remember having stated this to the officer interviewing

Page 5444

1 you?

2 A. Not in this way. I said when the operations headquarters were

3 formed, its role was to prepare for actions. And depending on the

4 various fields that people were responsible for, each individual had to

5 play the role assigned to him and perform his duties within that field.

6 I wasn't even aware of the fact that an action of some sort was being

7 planned. And I certainly could not have made such a statement.

8 JUDGE AGIUS: All right. If you skip a paragraph and go to page

9 16.

10 A. Yes.

11 JUDGE AGIUS: It starts with "Prisustvovao sam sastancima." Did

12 you find it?

13 A. Yes, I found it.

14 JUDGE AGIUS: Yes three just follows. I'm only interested in the

15 first sentence of that paragraph: "I would attend the meetings and

16 listen to the discussions of how to organise the offensive. Naser Oric

17 was the overall commander and all major offensive actions had to have his

18 authorisation."

19 Do you remember having said this to the officer interviewing you?

20 A. I don't remember that, firstly because as I have already said at

21 most of those meetings I wasn't present, I didn't attend them, for the

22 simple reason that I had a lot of work in the hospital. And in such

23 cases, someone else would replace me. Here was Dr. Avdo Hasanovic. In

24 this case it was Dr. Avdo Hasanovic. So as far as those meetings are

25 concerned, I don't think what is stated here is correct.

Page 5445

1 JUDGE AGIUS: Then again skip at the next paragraph and go to the

2 one which starts with "Radio stanisu nije mogao svako koristiti."

3 "Not just anyone could use this radio station. All users had to

4 be authorised by Naser Oric and the radio operator was always present."

5 Do you remember having ever stated this to the officer

6 interviewing you?

7 A. Yes, in response to a question as to who authorised the use of

8 the radio stations. That's what I was told when I wanted to use a radio

9 station. I was told that Naser had to authorise the use of radio

10 stations.

11 JUDGE AGIUS: All right. And then continues: "I used the radio

12 without Naser's permission to contact my wife in Tuzla. My wife was able

13 to contact me on two occasions."

14 Did you ever say this to the officer interviewing you?

15 A. Well, I probably did because that's how it was.

16 JUDGE AGIUS: All right. Next paragraph, roughly four lines

17 down: "I was never present when Naser contacted Sefer Halilovic, but

18 Naser would tell me that he has reported to Sefer about his offensives."

19 Do you remember saying this to the officer interviewing you?

20 A. Well, that's probably what I said.

21 JUDGE AGIUS: Now, the last paragraph on that page, "Kao sto sam

22 rekao." Right.

23 A. Yes.

24 JUDGE AGIUS: "As I said, we had meetings before the offensives.

25 The purpose of the offensives was not solely to gain territory. Instead,

Page 5446

1 many times the offensives were planned to get supplies, food, equipment,

2 material, and things from the village attacked. Many times we chose

3 villages that were rich in resources."

4 Do you remember saying this to the officer interviewing you?

5 A. Not in this way. I don't think the first person was used when he

6 asked me where the offensives were prepared -- or rather actions not

7 offensives, I probably said that there were offensives. But I wasn't

8 present at those meetings so I couldn't have used the first person when

9 relating this.

10 JUDGE AGIUS: Yes. Next paragraph. The third sentence: "I had

11 binoculars and I saw our soldiers burning the haystacks and other things

12 being set afire by them."

13 Do you remember having said this to the interrogator interviewing

14 you?

15 A. No, not as it has been translated here. I've already explained

16 this. I certainly wouldn't have said that there were soldiers. This is

17 a term I never used. I never used the term "soldier." Secondly, as I

18 have said, those two men weren't armed. So I couldn't have said that

19 they were soldiers.

20 JUDGE AGIUS: Next paragraph: "Naser Oric had requested that

21 they pick up hay, bricks, and other such items after an area was

22 liberated and secured for the enclave."

23 Do you remember stating this to the interviewing officer?

24 A. I couldn't have put it in this way; that's certain. I certainly

25 didn't mention Naser Oric's name. I certainly didn't say that he

Page 5447

1 requested that hay and bricks be gathered. I've mentioned how this was

2 done in the course of my testimony.

3 JUDGE AGIUS: Yes. Go to the last paragraph on page 17, please.

4 A. Yes.

5 JUDGE AGIUS: According to this statement you told the officer,

6 the interviewing officer: "We did not have a special unit in place to

7 take care of the prisoners for the offensives. The main interest of

8 soldiers was to get into an area, collect as much food and war booty as

9 possible. It was thought that there is no gain in capturing soldiers."

10 Do you remember telling -- stating this to the interviewing

11 officer?

12 A. Well, that's more or less what I said.

13 JUDGE AGIUS: Yes. Skip the next paragraph, please, and --

14 A. Yes.

15 JUDGE AGIUS: "After a village was liberated and we gained -- and

16 regained the resources, there was no interest to maintain the village.

17 During the liberation, three waves would occur. I myself did not

18 understand why we did not keep the villages and move the refugees. Here

19 is what usually happened."

20 So far, would you agree that this is what you stated to the

21 interviewing officer?

22 A. That's more or less what I said.

23 MR. JONES: Your Honour, I notice sometimes that the witness

24 isn't totally comfortable. Perhaps he could -- it could be clear to him,

25 if he needs to add anything --

Page 5448

1 JUDGE AGIUS: I have made it very clear to him. Our questions,

2 as I said, are very simple and straightforward requiring a yes or no with

3 the caveat that I put in the beginning that if he feels he needs to tell

4 us anything else he is free. We are not going to ask him.

5 MR. JONES: Yes.

6 JUDGE AGIUS: Unless it's something that is very obvious.

7 Otherwise he's free to tell us what he likes.

8 MR. JONES: If there's anything he's unhappy with, he should tell

9 us.

10 JUDGE AGIUS: Yes, that's the purpose of this exercise, actually.

11 According to this statement it continues as follows:

12 "Here is what usually happened. After liberation the first wave

13 would be soldiers looking for ammunition and military resources. The

14 second wave would be mainly civilian people and some soldiers. These

15 soldiers were the ones who did not have weapons. They would search for

16 war booty. They would look for weapons, ammunition, anything. Things

17 like flour. Everyone was seeking something to allow them to trade.

18 Rifles were needed. So if a soldier, who did not have a rifle but had a

19 sack of flour, he could then trade the flour for a rifle if someone else

20 found an additional rifle. That was what was occurring."

21 Do you remember saying this to the interviewing officer?

22 A. Yes, that's what I said and that's something I said here before

23 this Tribunal.

24 JUDGE AGIUS: And again I draw your attention to part of that

25 statement, the second wave. "The second wave would be mainly civilian

Page 5449

1 people and some soldiers. The soldiers were the ones who did not have

2 weapons."

3 Is this a correct reflection of what you said? Did you use the

4 word "soldiers" on this occasion or did you use the word "fighters"?

5 A. No, no. I certainly didn't use the term "soldier." As you can

6 see for yourself - perhaps it's a translation issue, it was translated

7 twice - but these people were people who were looking for a rifle, for

8 ammunition. I said that in that entire enclave anyone who had a rifle

9 had to go to the front line to defend its territory, so rifles were just

10 as important as food. I couldn't say that they were combatants if these

11 people didn't have a rifle of some sort.

12 JUDGE AGIUS: Yes. Next paragraph: "The civilians, the women

13 and children, would go through the houses and take everything else from

14 all the houses and structures. The third wave would be some sort of

15 groups, again civilians, who were good at finding things that were

16 well-hidden. This group would poke sticks in the ground to search for

17 buried ammunition, food, money, and cigarettes. And then after that, the

18 burning would start. So no one wanted to live there."

19 Do you recall having made this statement to the interviewing

20 officer?

21 A. Yes.

22 Could English interpreter speak into mike.

23 JUDGE AGIUS: The next paragraph: "Sometimes civilians would get

24 to the villages before the soldiers. They would be waiting in the area

25 for the soldiers to attack. We were unable to control the civilians and

Page 5450

1 it was not possible to keep our attacks secret from them. Hajrudin Avdic

2 from the War Presidency suggested during meetings and at other times that

3 something should be done about the people. Naser Oric recognised that

4 the civilians were in the way of the soldiers. Naser told the soldiers

5 to tell their relatives to wait until after the soldiers had liberated

6 the village. Naser repeated that message many times to the soldiers. At

7 meetings as well he told everyone to spread the word to civilians."

8 Do you remember having made this statement to the interviewing

9 officer?

10 A. That's more or less what I said.

11 JUDGE AGIUS: Yes. And we go to the next paragraph now: "I

12 never heard him," it means Naser Oric, I take it, "instruct his soldiers

13 to tell the villagers not to burn the villages down."

14 Do you remember having ever made this statement to the officer

15 interviewing you?

16 A. I never made such a statement, Your Honour. It's been awkwardly

17 translated. I never heard [Realtime transcript read in error: "heard"]

18 Naser Oric ordering soldiers to set villages on fire.

19 JUDGE AGIUS: Thank you. It continues. "Naser Oric's theory was

20 that the houses should be burned down --

21 MR. JONES: Your Honour, there's a problem with the transcript.

22 I think he said I never heard Naser Oric ordering soldiers to set

23 villages on fire."

24 We've got the complete opposite in the transcript.

25 JUDGE AGIUS: I wasn't concentrating on the transcript. Please

Page 5451

1 help me because I can't do two things at the same time. Yes, he did. I

2 heard what the witness said.

3 MR. JONES: Yes, it's line 16, page 58.

4 JUDGE AGIUS: Yes, he said the opposite.

5 Please confirm, Dr. Mujkanovic, that what you said was that you

6 never heard Naser Oric ordering soldiers to set villages on fire, that

7 you never heard, not that you heard.

8 A. I never heard Naser Oric ordering combatants to set villages on

9 fire.

10 JUDGE AGIUS: Yes. Next question.

11 "Naser Oric's theory was that the houses should be burnt down.

12 He and I argued over this many times. Naser Oric said that if the houses

13 are not burnt to the ground, we have not done our job because the Serbs

14 will return. Naser Oric discussed this at meetings. At one of the

15 meetings, I spoke up and asked them not to burn the buildings. I told

16 him that it was not good for us to burn the houses. I told him to take

17 whatever we need, yes, but not burn them to the ground."

18 Do you remember having stated this to the interviewing officer?

19 A. This is partially correct. We did discuss the matter and I have

20 frequently said here that setting fire to villages was one of the major

21 problems in Srebrenica. We discussed the matter and tried to determine

22 how to resolve this problem, but I never said that Naser Oric said that

23 those houses should be burnt to prevent the Serbs from returning to them.

24 I said that there was a rumour in Srebrenica, according to which these

25 houses should be burnt to prevent the Serbs from returning to them.

Page 5452

1 JUDGE AGIUS: Yes. Next paragraph. It continues as follows:

2 "Let me explain. In the enclave one man was at the top. Many people

3 hopeless. Naser Oric was the top authority; he was like a king to the

4 people. If Naser's theory was to burn the buildings to the ground, then

5 both soldiers and civilians did that, and that was his theory. Of course

6 not everyone participated."

7 Do you remember having stated this to the officer interviewing

8 you?

9 A. Not in this way, Your Honour.

10 JUDGE AGIUS: Do you wish to add anything or should we take that

11 as your complete answer?

12 A. I'm not receiving any interpretation.

13 JUDGE AGIUS: Should -- would you like to add anything or would

14 you like to leave it at that?

15 A. I wouldn't leave it like that.

16 JUDGE AGIUS: So -- yes, what would you like to state, if at all?

17 I mean, you're not being forced to...

18 A. I've already said that when this statement was taken we spoke

19 about all sorts of subjects, and if someone took certain parts of my

20 statement out of context and record them in this statement then this is

21 the result. When we spoke about Naser Oric, I said that he was the

22 commander of the defence of Srebrenica. As such he was the most

23 respected person in the area. But the other people who were living in

24 that territory were people who had lost all hope. It's true that we

25 spoke about this and among other things I also spoke to Naser Oric about

Page 5453

1 the necessity of finding some sort of solution about preventing those

2 villages from being set on fire so that people could live there, et

3 cetera.

4 MR. DI FAZIO: Your Honours, sorry to interrupt. I'm just

5 wondering if we could receive some assistance from the booth. I'm having

6 a little trouble hearing the English. The witness has a loud clear

7 voice. The transcript-taker is having trouble too.

8 JUDGE AGIUS: I had the same problem a while ago, so I increased

9 the volume. I could barely hear the interpreter, the male voice that I

10 was receiving at the time. Unfortunately the end result is that I am

11 hearing myself too loud. That's the problem I have. I don't know. If

12 this is a technical matter that can be attended to.

13 MR. DI FAZIO: If he can speak up a bit from the interpreter's

14 booth because we can hear you clearly.

15 THE INTERPRETER: The interpreter will try to speak more loudly.

16 JUDGE AGIUS: I think that's the problem.

17 Sorry, Dr. Mujkanovic, I think we interrupted you. Have you

18 finished or would you like to add anything else?

19 A. I've finished. There's nothing else I wanted to add.

20 JUDGE AGIUS: Yes. And then you continue: "A mob mentality did

21 occur," something that you were referred to this morning -- sorry this

22 afternoon, earlier on, "the psychology of the masses. There were people

23 who opposed Naser Oric's ways, for example, Hakija Meholjic. There was

24 almost an armed conflict between their troops. Fortunately that conflict

25 was avoided."

Page 5454

1 Do you remember having stated this to the interviewing officer?

2 A. Well, not in these words. I did say that there was a permanent

3 state of conflict between Meholjic and Naser Oric. I've said so during

4 my testimony. I tried to bring them together several times, have them

5 talk to one other to resolve the problems, that sort of thing.

6 JUDGE AGIUS: Okay. So now we go to page 19, please, the third

7 paragraph from the top: Naser Oric [B/C/S spoken].

8 "Naser Oric had two press officers. They usually went into the

9 villages after they were liberated and took photographs and videos of the

10 result."

11 Do you remember having stated this to the interviewing officer?

12 A. This must be a mistranslation. Those were no officers. Those

13 were just two people with a camera who recorded everything that went on

14 in Srebrenica. They were no officers at all. I don't think this is

15 correct.

16 JUDGE AGIUS: Thank you. Then next paragraph: "Naser Oric, Oric

17 had a lot of things to trade. The 50 men around Oric were like his

18 personal unit. Sometimes they were referred to as his bodyguards. I

19 know that each of those men had to bring whatever they acquired in the

20 offensives to Naser Oric's special storage places. Naser Oric divided it

21 up later."

22 Do you remember having stated this to the interviewing officer?

23 A. No, not like this. Not like this, Mr. President. As I said in

24 my testimony, there was a storage facility at Naser's house which he used

25 to store food for the fighters. But there was no trade in Srebrenica.

Page 5455

1 That's certainly not true. And as for these 50 men who were with him,

2 some sort of a personal unit, that is not true either.

3 As I said, there was some people who were very close to Naser

4 Oric, people he considered to be particularly brave fighters. Those

5 people were usually in his vicinity, and I've given you the names of some

6 of these people.

7 JUDGE AGIUS: All right. Thank you.

8 Next paragraph: "Naser Oric had -- has storage places all over.

9 One was in his house in Potocari. And the entire town of Srebrenica

10 storage houses were under his control."

11 Do you remember having stated this to the interviewing officer?

12 A. No, not like this. I said what I said. I said there were two

13 storage facilities under the control of the War Presidency, and there was

14 one storage inside Naser Oric's house as I've explained. I've explained

15 its purpose.

16 JUDGE AGIUS: Right.

17 Was Safet Omerovic still alive?

18 A. Yes.

19 JUDGE AGIUS: Now it's the third paragraph before the last on

20 page 19: "Naser Oric je posvuda imao takva skladista."

21 "Naser Oric was the person in charge of maintaining a

22 professionally organised military operation."

23 Do you remember having made this statement to the officer of the

24 Prosecutor?

25 A. This is probably something that was taken out of context, the

Page 5456

1 overall context of my interview. But as I have said, Naser Oric was

2 Srebrenica's commander. So this is acceptable.

3 JUDGE AGIUS: I'll skip the second sentence of that paragraph. I

4 take you down a few lines, you mention all the offensives that were dealt

5 with during your testimony.

6 A. Yes.

7 JUDGE AGIUS: And there is that sentence that I asked you about

8 earlier on. I just want a re-confirmation from you whether you ever said

9 it as it is, as it appears in this statement to the officer interviewing

10 you. "Naser was physically at each and every one of these offensives,

11 directing them." That is, Podravanje, Fakovici, Kamenica, Kravica,

12 Voljavica, Bjelovac, Kunjarac, Loznicka Rijeka, Sase, Kravica area,

13 Skelani, and Jezero."

14 Did you ever state to the interviewing officer that Naser was at

15 each and every one of these offences directing them?

16 A. No, I'm sure I never said that, that he was physically present or

17 led the offensives. This was not something that I was in a position to

18 know.

19 JUDGE AGIUS: All right. Page 20, there's a very short -- the

20 third or fourth paragraph which starts with "dana 5. oktobra 1992.

21 Pokrenuta je ofanziva na Fakovice." Right. Did you find it? Page 20 --

22 page 19 -- page 20, sorry.

23 A. Yes, yes. It's right here.

24 JUDGE AGIUS: The first sentence of that paragraph reads as

25 follows: "On the 5th of October, 1992, Fakovici offensive was launched.

Page 5457

1 The attack was organised by Zulfo Tursunovic and Naser."

2 Do you remember having made this statement to the interviewing

3 officer?

4 A. Roughly speaking.

5 JUDGE AGIUS: Now, skip the next paragraph and we get to the

6 paragraph which starts with: "Dana 6 ili 7 novembra 1992. Naser Oric je

7 izvrsio napad na Kamenicu."

8 A. Yes.

9 JUDGE AGIUS: The first sentence reads as follows: "On the 6th

10 or 7th of November, 1992, Naser Oric launched an attack on Kamenica."

11 Do you remember having made this statement to the interviewing officer?

12 A. Roughly, yes.

13 JUDGE AGIUS: Next paragraph which starts with: Dana 14 decembra

14 1992. Pocela je ofanziva za preuzimanje kontrole u muslimanskim..."

15 A. Yes.

16 JUDGE AGIUS: "On the 14th of December, 1992, an offensive to

17 gain control of the Muslim villages Voljavica, Bjelovac, Kunjarac,

18 Loznicka Rijeka and Sase was launched. Naser Oric commanded this

19 offensive also."

20 Do you remember making this statement to the interviewing

21 officer?

22 A. I did state this but, again, this is out of context. There were

23 other questions being asked, and when I was asked about the offensives

24 and who led them I never said even at the time it was Naser Oric. But it

25 is recorded the way we see it now. I do have to accept it, though --

Page 5458

1 MR. JONES: I hope it's clear to the witness, he does not have to

2 accept what is in his statement. He seems to be under the impression

3 that he has to accept what is in his previous statement.

4 JUDGE AGIUS: Dr. Mujkanovic, you don't have to accept anything

5 that is there. The purpose of this exercise is precisely to get

6 clarifications from you.

7 A. Very well --

8 JUDGE AGIUS: If you don't agree with what is written in this

9 statement, please tell us so. That's why we are asking you questions.

10 A. Mr. President, I've said so right here. I'm under oath. I stand

11 by all of my statements. Again, I must say that I had no personal

12 knowledge then or now of Naser's involvement with any battle or action

13 that occurred.

14 Everything that is written here is something that I only saw

15 several days ago in the Bosnian language. It was then that I said I had

16 serious objections to the translation and to the contents of the

17 statement, but then it was explained to me that this was a different

18 jurisdiction, unlike the one that I come from. Through our preparation,

19 Mr. Wubben and I clarified a number of things. I pointed out several

20 translation inconsistencies and errors, which were subsequently

21 corrected.

22 We can take -- we can take it one step at a time and go through

23 the whole statement, but I don't think this entirely reflects my original

24 statement. These are bits and pieces taken out of context and included

25 in this statement. If you look at this, what transpires is that I talked

Page 5459

1 about Naser Oric, only it's just not true. I spoke about everything that

2 was going on in Srebrenica at the time, much like the account I have

3 given here to the Trial Chamber.

4 JUDGE AGIUS: Yes, it continues a couple of sentences further

5 down: "The frontal attack would not have worked since the Serbs had

6 fortified their positions in the villages. So Naser Oric, Zulfo

7 Tursunovic, and other members of the headquarters decided to send

8 diversion groups into the area."

9 Do you remember having said so to the interviewing officer?

10 A. I remember we spoke about that and this is more or less what

11 happened, as I have confirmed to the Chamber when asked. I re-confirm it

12 now. This is more or less how it was.

13 JUDGE AGIUS: So if I invited you to read for yourself, in other

14 words not aloud, this entire paragraph starting: "On the 14th of

15 December, 1992," and ending with: "Mis is a very good friend of mine and

16 we spoke often," what is not correct in that paragraph? What is not your

17 words? What is in this paragraph that you never stated to the officer

18 interviewing you?

19 A. I've read the paragraph. I never mentioned any names in terms of

20 who commanded what. Whatever is stated here is something that I had been

21 told by Safet Omerovic, nicknamed Mis. I never spoke about who exercised

22 command over anything. Therefore ...

23 JUDGE AGIUS: So the only part which is not correct, is not true,

24 in other words you never mentioned it to the officer, is the part that

25 reads: "Naser Oric commanded this offensive also"?

Page 5460

1 A. Your Honour, I've said a number of times that I was not aware of

2 the actions. I was not physically present at any of the actions, nor did

3 I know that Naser Oric exercised command in any of those actions or what

4 his role was in them.

5 JUDGE AGIUS: Yes, it's my question. I just wanted a

6 confirmation from you that according to you you never said to so to the

7 interviewing officer. That's all.

8 MR. JONES: Just for the record that the witness's answer about

9 not knowing about commanders would also cover the sentence --

10 JUDGE AGIUS: I am coming to that. I am coming to that. But that

11 part he did not deny, so I'm taking it that he is referring only to Naser

12 Oric.

13 You also mentioned according to this statement Zulfo Tursunovic.

14 Did you mention Zulfo Tursunovic in relation to this offensive,

15 particular offensive of the 14th of December, 1992? Or has the name of

16 Zulfo Tursunovic been included here notwithstanding that you never

17 mentioned it?

18 A. I may have mentioned Zulfo Tursunovic but I was never in the

19 position to say who exercised command or how. I could not have referred

20 to Zulfo Tursunovic as a commander or anything like that.

21 JUDGE AGIUS: All right. Skip the next paragraph, please, and

22 concentrate on the following two paragraphs. And I refer you to the last

23 sentence in each. The first paragraph: "In some instances, the

24 civilians went into areas before our soldiers."

25 That's the last sentence of the first paragraph. The last

Page 5461












12 Blank page inserted to ensure pagination corresponds between the French and

13 English transcripts.













Page 5462

1 sentence of the second paragraph reads as follows: "The civilians were

2 going into the area to retrieve the food because they were starving."

3 Did you -- do you confirm having made these statements to the

4 interviewing officer?

5 A. I can't find this paragraph. Some Muslim civilians were killed

6 during the air strike. Civilians were entering the area in order to get

7 food because they were starving. Is that the one you have in mind?

8 JUDGE AGIUS: Yes, exactly. That's the last sentence of the

9 paragraph you have been reading. I've also referred you to the last

10 sentence of the previous paragraph. The last sentence reads: "In some

11 instances the civilians went into areas before our soldiers."

12 A. Sometimes civilians would enter certain areas before the

13 soldiers, yes.

14 JUDGE AGIUS: You agree that you did make these two statements to

15 the interviewing officer?

16 A. Yes, probably so. But this is exactly what happened.

17 JUDGE AGIUS: I'm just asking you whether you made this

18 statement. Now page 22. Go to page 23, please, the third paragraph from

19 the top. "Vise ljudi koje sam sreo u bolnici."

20 A. Yes.

21 JUDGE AGIUS: "I was told" -- I'm reading from the English page

22 22, fourth paragraph. "I was told by the various people that I

23 encountered in the hospital that during the Kravica area offensive there

24 was a lot of abuse which occurred in the village. The abuses happened

25 when all the civilians swarmed into the area after the attack."

Page 5463

1 Do you remember having made this statement to the interviewing

2 officer?

3 A. Again, taken out of context of the overall event. I don't agree

4 that this faithfully reflects what I said. This was something I heard at

5 the time. When civilians entered villages, there were acts of abuse

6 being committed. Now, whether it's true or not is not something I can

7 say.

8 JUDGE AGIUS: Definitely not, you are not being asked to tell us

9 whether it happened or not; that will be our task, difficult task, later

10 on in due course. This is why we need your help. I mean, obviously if

11 you were not there you cannot confirm anything.

12 What I asked you was whether to confirm whether you made this

13 statement, whether these three lines reflect faithfully what you told the

14 interviewing officer. If they don't, please tell us so.

15 A. Not faithfully, not as I said during the interview. It's just

16 taken out of context.

17 JUDGE AGIUS: All right.

18 A. I told the investigator at the time that I was not physically

19 present and that it wasn't something I could talk about. And then he

20 asked me about hearsay, things that people talked about in Srebrenica at

21 the time. It was that sort of thing.

22 JUDGE AGIUS: All right. Thank you. The next paragraph, the

23 first sentence only: "Both soldiers and civilians told me that our

24 soldiers came into the village of Kravica that particular morning, which

25 was Serb Christmas, and they killed all the Serbs in the village,

Page 5464

1 including men, women, and children."

2 Did you ever say this to the interviewing officer?

3 A. No, no. That's for sure.

4 JUDGE AGIUS: All right. Next paragraph. "I was told that our

5 soldiers knocked on the doors of the houses, and when the doors opened

6 the soldiers sprayed the interior of the houses with gunfire eliminating

7 everyone inside."

8 Did you ever make this statement to the interviewing officer?

9 A. No.

10 JUDGE AGIUS: Thank you.

11 A. No.

12 JUDGE AGIUS: Now, the last paragraph on page 23 --

13 A. Yes.

14 JUDGE AGIUS: Forget the first sentence and we start from: "We

15 began preparations for an attack on Bratunac. And then two days before

16 the scheduled attack Naser Oric decided to attack Skelani instead."

17 Do you remember having said this to the interviewing officer?

18 A. I remember we talked about that. I remember I said that there

19 had been talks about whether to attack Bratunac or Skelani.

20 JUDGE AGIUS: Yes. Skip the next three paragraphs and go to the

21 paragraph which starts with: "Napad je izvrsen 16. Januara 1993." Do

22 you find it?

23 A. Yes.

24 JUDGE AGIUS: And let me read -- the first two sentences or three

25 sentences are not relevant to us. It's only the rest that I would like

Page 5465

1 to ask you about. "The attack was launched 16 January, about 5.00 a.m.

2 Certain units were tasked to do certain things. The main task was to

3 capture Jezero. It was on top of a hill and a good position. Naser Oric

4 assumed the hardest task of the offensive and that was to capture Kusica

5 Groblje. It was a dominant, strong position. Zulfo Tursunovic and the

6 others were supposed to cut off any logistical supply routes."

7 Do you remember having said this, stating this to the

8 interviewing officer?

9 A. I remember we discussed this.

10 JUDGE AGIUS: We are almost there. It's all coming to an end.

11 Go to page 26, please.

12 A. Yes.

13 JUDGE AGIUS: I'm not going to read anything except maybe one

14 line from this paragraph. Could you please read it for yourself. In

15 English it's page 25 and it starts first paragraph from the top it

16 starts: "In the morning 'Zele' told me and I saw the chief of police."

17 In B/C/S, page 26, first paragraph: "Ujutro mi je Zele to ispricao."

18 A. I can see that.

19 JUDGE AGIUS: I would like you to read it for yourself, not aloud

20 in other words, and then I will ask you a question.

21 A. Yes, I've read it.

22 JUDGE AGIUS: Yes. In this paragraph you refer to another

23 incident in which Kemo was supposedly involved. It's of no interest at

24 all to this Trial Chamber; we don't want to hear about it. But towards

25 the end of that paragraph you say: "After this Naser sent 'Kemo'", that

Page 5466

1 is Kemal Mehmedovic, "to Tuzla."

2 Do you remember stating this to the officer interviewing you?

3 A. I remember this. I remember when this happened. I didn't say he

4 was sent by Naser. What I said was Kemo had left Srebrenica for Tuzla.

5 JUDGE AGIUS: So you never said that Naser sent Kemo to Tuzla;

6 that's not correct?

7 A. No one could have sent Kemo anywhere. Kemo only belonged to

8 himself, Mr. President.

9 JUDGE AGIUS: Thank you. Skip the next paragraph, please, and we

10 come to the paragraph which reads: "Ratno predsjednistvo nije nikakve

11 vlasti."

12 A. Yes.

13 JUDGE AGIUS: And according to this statement what we have here

14 is that you stated to the interviewing officer: "The War Presidency did

15 not have any power over Naser Oric. They were all subjected to Naser

16 Oric's control and power. These people were not necessarily Oric's men,

17 but they were powerless to challenge Naser."

18 Do you remember having stated this in your -- to the interviewing

19 officer?

20 A. This is out of context. I don't remember having this particular

21 discussion. We talked about the competencies of the War Presidency and

22 the army, and not about ...

23 JUDGE AGIUS: Please go to page 28, the penultimate paragraph,

24 the one before the last. The English is page 27, four paragraphs from

25 the bottom. Dr. Mujkanovic, did you find it? It starts with --

Page 5467

1 A. Yes.

2 JUDGE AGIUS: [Previous translation continues]...

3 "As far as I know when Naser spoke with Sefer Halilovic he was

4 not using the code because I don't think he had Sarajevo codes."

5 Did you ever state this to the interviewing officer?

6 A. I remember that we spoke about whether the line used when Naser

7 spoke to Sefer was a coded line or not.

8 JUDGE AGIUS: I asked you a few minutes ago to read that

9 paragraph page 20 -- about Kemo, in other words.

10 A. Yes.

11 JUDGE AGIUS: Page 26, the first paragraph in your language.

12 A. Yes.

13 JUDGE AGIUS: And that paragraph in the first sentence says: "In

14 the morning Zele told me and I saw the chief of police."

15 Did you make that statement? Did you tell the interviewing

16 officer that after what Zele told you you saw the chief of police?

17 A. Yes, I saw Becir Bogilovic.

18 JUDGE AGIUS: Why did you feel the need to see the chief of

19 police, or was it just an accidental meeting?

20 A. It was accidental. Here it says that I went there, but Becir

21 Bogilovic would very often come to the hospital. So it's not as if I

22 went to see the chief of police; I saw him when he came to see me.

23 JUDGE AGIUS: Thank you. I've been trying to follow as much with

24 the utmost attention, I must say, your testimony, both when you were

25 being examined in chief and during the cross-examination. I would like

Page 5468

1 to have it clear in my mind for the benefit of the entire Trial Chamber

2 what is your position in regard to who came or who was under Naser Oric's

3 command when he was commander of the Srebrenica defence. Who was under

4 his command?

5 A. There were the units that I have mentioned, which were in fact

6 part of certain regions, villages, or groups of villages. And the units

7 were composed of men from those areas.

8 JUDGE AGIUS: Another matter of clarification that we need to

9 come to. I take it, if I understood you well, that you were only

10 physically present during one of the offensives and not more than one.

11 The other instance you were further -- at quite a distance; you couldn't

12 see what was happening. Is that correct?

13 A. Your Honour, I was never present at any of the offensives; I was

14 only present at an elevation with Ramzo Becirovic when Bjelovac was

15 attacked. That was 3 or 4 kilometres from when the fighting was taking

16 place and I was at Podravanje when the fighting had finished.

17 Two days later I went to Hakija Meholjic's unit at Podravanje.

18 That was when I was present there; it was immediately after the fighting.

19 As for the other areas in which there was fighting, I was never present

20 in those areas.

21 JUDGE AGIUS: Yes, that's correct. That's how I meant to put it.

22 You also told us in the course of your testimony that a very

23 small percentage of the fighters wore uniforms. Is that correct?

24 A. That's correct.

25 JUDGE AGIUS: So when you were in Podravanje two days after the

Page 5469

1 offensive and you noticed what you testified about, the plundering and

2 the burning --

3 A. Yes.

4 JUDGE AGIUS: -- the persons that you saw doing these things,

5 were they wearing civilian clothes or uniforms? You already told us that

6 they were not armed.

7 A. They weren't armed. They were wearing civilian clothing. They

8 weren't wearing uniforms. And when I say "uniforms," I mean camouflage

9 uniforms which were worn by some of the combatants in Srebrenica. The

10 clothes they were wearing were quite ordinary. They were wearing

11 trousers of some kind, jackets, et cetera.

12 JUDGE AGIUS: So for all intents and purposes, would I be correct

13 in taking it that those persons you saw plundering and setting buildings

14 on fire could have actually been fighters as well, fighters not wearing

15 uniforms --

16 MR. JONES: Sir, I'm not sure he said buildings. I thought in

17 Podravanje it was a haystack.

18 JUDGE AGIUS: Yes, in Podravanje it was haystacks, yeah.

19 MR. JONES: Isn't this also speculation, pure and simple?

20 JUDGE AGIUS: I'm just asking him whether he would agree that

21 because they were not wearing uniforms they could have been -- doesn't

22 mean a thing. It could have been fighters as well and not just

23 civilians.

24 MR. JONES: It could have been civilians or fighters.

25 JUDGE AGIUS: Yes, yes, yes.

Page 5470

1 In other words, would it be more -- would it be more correct to

2 say that those were persons wearing civilian clothes?

3 A. These persons were persons wearing civilian clothes. They didn't

4 have any insignia on them, and in general no insignia was worn. No

5 insignia were worn there. I have said that some of those in uniform had

6 badges on their left arms. They had six golden lilies, an emblem

7 consisting of six golden lilies. But there was nothing that indicated

8 that they were combatants.

9 But if we say that the civilians and combatants more or less wore

10 the same sort of clothes, that's one way of looking at things. But on

11 the whole these people were elderly people, women and children. I

12 couldn't say that they were soldiers or combatants. It was a mob that

13 would go there and gather everything that they got their hands on.

14 JUDGE AGIUS: Yes. Could you please go to your second statement,

15 the one from 2004, for a very -- two very short questions. And the very

16 first page of that statement which should be page 2.

17 A. Yes.

18 JUDGE AGIUS: Paragraph 3.

19 A. Yes.

20 JUDGE AGIUS: Where you are referring to the document which was

21 shown -- you were shown earlier on where members -- some members of the

22 operation staff of Srebrenica tendered their resignation. And you are

23 reported as having stated here --

24 A. Yes.

25 JUDGE AGIUS: "These persons did submit their resignations. All

Page 5471

1 the reasons mentioned in this document for the reasons of resignation of

2 the OS staff Srebrenica are genuine. Such conditions did exist at the

3 time. OS staff Srebrenica was not given any importance by Naser Oric."

4 Did you ever make that statement to the interviewing officer?

5 A. Yes, yes. I gave this statement to the official and I was shown

6 this document. I said that I had never seen the document before. But I

7 said that I was aware of the fact that there were some people, the people

8 mentioned there, who had resigned. And they continued to perform those

9 duties.

10 JUDGE AGIUS: The next paragraph, paragraph 4, the second part of

11 that paragraph which was also in part read out to you by Mr. Wubben

12 earlier on. I'm going to read it to you again and once more I would ask

13 you to kindly confirm to us whether you ever made this statement to the

14 interviewing officer.

15 "In fact, it was a kind of a public pressure to burn down the

16 personal property left by the Serbs. Naser Oric was unable to stop that

17 happening; he followed the public will. I think he should have been

18 strict enough to stop the destruction of the property during the attacks;

19 however, he chose the easy way out. He did not want to annoy the people

20 and lose respect."

21 Do you recall having ever made this statement to the interviewing

22 officer?

23 A. Yes, I do remember that.

24 [Trial Chamber confers]

25 JUDGE AGIUS: Yes, Judge Eser has some questions to you arising

Page 5472

1 out of your testimony.

2 JUDGE ESER: Just to make it clear from the very outset, I will

3 not refer to your prior statements, but only to your testimony which you

4 gave in these days here at the court.

5 But before coming to my questions, I would like to make a short

6 comment with regard to the submission or the discussion which was made

7 before the break with regard to taking resort to these prior statements,

8 because one of the submissions was that this might perhaps not be in

9 accordance with certain rules.

10 And since the Presiding Judge comes from a common-law country

11 with an adversarial system, I would like to make I say as a short comment

12 as a Judge coming from a continental system: First of all, I think the

13 Bench -- and I would like to address also to the public that there should

14 not be the impression that the Bench is not paying due regard to the

15 rules of the Statute and the Rules of Procedure -- this Court has to make

16 a valid judgement and a judgement which has to be based on truth, and

17 this is also expressed in the Rules of Procedure and Evidence, Rule 90

18 (F)(i). Of course, finding the truth has to be done by fair means, but

19 if there was the impression that fairness is only present in an

20 adversarial system, I would not like to have kept this in the minds.

21 Other criminal-procedure systems also do their best in preserving

22 fairness, perhaps by different rules.

23 If this Court is broadly, as was stated by the Defence, following

24 the adversarial system, that does not mean that everything has to be as

25 it is in an adversarial system. The term "adversarial" doesn't even

Page 5473

1 appear in the procedure. And I would like to refer you to a very

2 important provision in the rules of evidence which would say that Rule

3 89: "A Chamber shall apply the rules of evidence set forth in this

4 section and shall not be bound by national rules of evidence."

5 And if you go to Rule 85 where it speaks of the presentation of

6 evidence it says some power given to the Bench, how to direct the

7 presentation, in particular paragraph (B) would say that the Judges may

8 put -- may put questions to the witness at any stage.

9 Now, according to these rules I would like to ask the following

10 questions, and again I do not refer to prior statements but only refer to

11 the testimony.

12 [Trial Chamber confers]

13 JUDGE ESER: First of all, may I come back, Dr. Mujkanovic, to

14 your visits, the visit of Naser Oric in the hospital. You state that he

15 came almost regularly. Now, did other commanders also come to the

16 hospital?

17 A. Yes.

18 JUDGE ESER: Did they do the same thing as Naser Oric? What was

19 -- what did they talk about?

20 A. They'd always come to ask about one of their combatants --

21 JUDGE ESER: Can you speak a little louder --

22 A. They would come to ask about the health of one of their

23 combatants. Other commanders would come to ask about the health of their

24 combatants.

25 JUDGE ESER: Now, in one of your statements it was on page 50 --

Page 5474

1 5120, you stated as testified When Naser Oric came, we usually discussed

2 the weapons that had been seized.

3 Now, did this having to do with the health of soldiers?

4 A. Well, it didn't have anything to do with the health of the

5 soldiers.

6 JUDGE ESER: And what does it mean, the seized weapons? Seized

7 by whom?

8 A. As I have said, Your Honour Mr. Eser, Naser would come after the

9 actions. He was interested in the health of the soldiers -- the

10 combatants and afterwards they would always have time to speak about the

11 matter. And most frequently he would speak about the weapons that had

12 been seized because that was of greatest importance to him, the weapons

13 that had been seized in the course of the action carried out by the

14 Srebrenica combatants in the villages that we have referred to here.

15 JUDGE ESER: Now another statement was that local commanders saw

16 Naser Oric as their commander of said area in Srebrenica. Now, what

17 local commanders are you referring to in this statement?

18 A. I'm referring to all the commanders. I could list them. I could

19 provide you with their first and last names, but I'm referring to all the

20 commanders who are in command of the units that we have been speaking

21 about throughout my testimony, with the exception of one Hakija Mehuric.

22 This included Zulfo Tursunovic, Akif Ustic, Ahmo Tihic, Senahid

23 Tabakovic. It's difficult for me to remember all the names.

24 JUDGE ESER: All these commanders would see Naser Oric as their

25 commander?

Page 5475

1 MR. JONES: Your Honour, I asked a similar question about Zulfo

2 and it was disallowed. I asked if Zulfo would consider that Naser to

3 have authority about him and I was not allowed to put that questions

4 because it was considered to be speculation. This witness doesn't know

5 what Zulfo thought about Naser or whether he considered to be under his

6 command.

7 JUDGE ESER: I was phrasing verbatim, local commanders -- as

8 testified by the witness, local commanders saw Naser as their commander

9 of said area in Srebrenica. I was only asking to whom commanders he was

10 referring to. So...

11 A. Yes.

12 JUDGE ESER: Now, with regard to looting and burning, we have

13 already touched this problem and you reiterated just to Judge -- to the

14 Presiding Judge that it was difficult to distinguish with regard to

15 uniforms whether civilians had has uniforms or soldiers had no uniforms.

16 So how was it possible to distinguish at all whether looting, taking

17 things away, or even burning was committed by the one and not by the

18 others? Do you have any indications how you may distinguish? You made

19 this distinction.

20 A. I didn't make that distinction.

21 JUDGE ESER: Okay.

22 Now, with regard to the discussion we had on the problem of

23 attempting to prevent looting and burning, even if it is -- might have

24 been impossible to -- just one last question.

25 JUDGE AGIUS: Can it take this question? No. We have to stop

Page 5476

1 because they have to change the tape.

2 We'll stay here and finish with the witness first.

3 MR. JONES: Your Honour, may I say I certainly have a number of

4 questions for this witness arising from Your Honours' questions and new

5 areas which have been raised by Your Honours.

6 JUDGE AGIUS: Well, we might as well have a break straightaway.

7 We'll have a break of 20, 25 minutes, which would leave us with -- we

8 need to also discuss and decide upon --

9 THE INTERPRETER: Microphone for the Presiding Judge, please.

10 JUDGE AGIUS: We need to discuss very shortly and decide on your

11 motion for adjournment.

12 MR. JONES: If I may, Your Honour, I have I would say half an

13 hour with this witness. I would prefer to deal, if necessary, with the

14 adjournment application tomorrow if we run out of time today. It's less

15 important.

16 JUDGE AGIUS: Certainly. What is important is to finish with

17 this witness and send him back home.

18 Yes, Dr. Wubben [sic].

19 MR. WUBBEN: In addition to the issue of the motion, we could be

20 short in that respect. It's also of importance to update the Victims and

21 Witnesses Unit in regard to the witness who is now present and that

22 should be organised --

23 JUDGE AGIUS: No, no. This witness will finish today. I have

24 not put any restrictions on any of you. He has to finish today.

25 MR. WUBBEN: Your Honour --

Page 5477

1 MR. JONES: Yes --

2 MR. WUBBEN: What I mean is a request to deal with that motion

3 right after the break.

4 JUDGE AGIUS: We'll start at 6.00 sharp.

5 MR. JONES: Your Honour, may I? I just have heard what Mr.

6 Wubben is saying about dealing with that motion. This is a very

7 important witness. He's been testifying for days --

8 JUDGE AGIUS: You'll have all the time to finish your questions.

9 MR. JONES: Yes.

10 JUDGE AGIUS: If we start at 6.00, you've got half an hour.

11 --- Recess taken at 5.40 p.m.

12 --- On resuming at 6.02 p.m.

13 JUDGE AGIUS: Yes, Judge Eser.

14 JUDGE ESER: Thank you. I would like to be as short as possible.

15 And I have a question with regard to the taking away property, but in

16 particular food. And on the last days you testified that the only thing

17 that the troops took were weapons and ammunitions.

18 Do you remember?

19 A. Yes.

20 JUDGE ESER: Now, on other occasions you would say the following

21 -- that was 5275 -- it's on page 57 -- 5275 to give you an idea of what

22 I'm referring to --

23 MR. JONES: Sorry, could we have the day, please, so I can find

24 it on our LiveNote transcript. Otherwise I'm lost.

25 JUDGE ESER: Just a minute. 5275. That was on the -- on

Page 5478

1 Thursday, 17th.

2 You have been asked with regard to: Do you understand that a lot

3 of food and a lot of medicine were also captured at Fakovici? And your

4 answer was: "A certain amount of medicines and medical supplies were

5 brought in fact, but I cannot speak about the quantities of food that

6 were captured."

7 So I would -- can we conclude from this statement that not only

8 medicine but also certain quantities of food have been captured, and if

9 so by whom?

10 A. I said that all these actions were started because of food. It's

11 the same as I've already explained. The civilians who were waiting would

12 storm the villages in order to get food and later also other items that

13 they would then trade for food.

14 JUDGE ESER: And on another occasion that was on Tuesday, on page

15 5128 you testified: "The main reason why the action was organised" -

16 that was Voljavica, Zaluzje, Bjelovac - "the main reason why the action

17 was organised -- why the attack was organised was to get hold of food,

18 materiel, technical supplies, medicines, and everything else that was

19 required for the normal functioning of the free territory of Srebrenica."

20 So can we conclude from this that not only weapons have been

21 taken away but also food or other items?

22 A. Your Honour Mr. Eser, what I have said is that after a certain

23 village was taken people would grab whatever they believed they needed.

24 In addition to food, they would take technical appliances, refrigerators.

25 CB sets, electrical ovens. I don't see how they could use these things

Page 5479

1 as there was no electricity in Srebrenica. They believed these were

2 items that could come in useful for trading, in exchange for food. So

3 whatever they thought they might be able to put to some use, they took.

4 JUDGE ESER: But since you have testified that it was very

5 difficult to distinguish between soldier fighters and civilians, because

6 fighters may have had uniforms or not, and the similar way civilians may

7 have had uniforms or not. Now, how can you -- how is it possible to say

8 whether these items which you mentioned have only been taken away by

9 civilians and not perhaps also by fighters?

10 A. I said already, and I repeat now: Most of the population, most

11 of the people referred to as hapci or hapci units, as mentioned in the

12 book, those groups were made up mostly of women and children. There was

13 snow on the ground, so they would put things on ovens, put ropes on the

14 oven and drag these off. But those of these individuals were women,

15 elderly persons, and children.

16 JUDGE ESER: So my last question with regard to the storage as

17 Potocari we had talked about -- I am now referring to Wednesday, page

18 5155 where you testified: "I learned in Naser Oric's house where he

19 lived there was a storage and that is where some of the ammunition was

20 kept. So this was in his house. There was also some food storage there,

21 and this was also for the purposes of the army."

22 Now my question is: Where did this food come from?

23 MR. JONES: If the --

24 JUDGE ESER: To your knowledge. To your knowledge. To your

25 knowledge.

Page 5480

1 MR. JONES: Yes.

2 THE WITNESS: [Interpretation] I can't say where the food came

3 from. But I assume it was from the villages that had been taken. Those

4 were no large quantities of food, rather minute quantities that Naser

5 used to distribute to his better fighters, to those who were particularly

6 brave, to help their families to survive. As I said, what the fighters

7 cared about the most was to get hold of food and ammunition. These

8 civilians who would storm the villages later hardly had time to do

9 anything else but grab food and take it back to their families. But the

10 same applied to the fighters because they also lived in homes with their

11 families. So that was one of the reasons. And the storage facility that

12 there was inside his house -- first of all it's a very small house. You

13 couldn't hold large quantities of food or ammunition there.

14 JUDGE ESER: Does this mean that since the fighters were living

15 in their families, when they had been in the village that they would also

16 take, beside ammunition, also food home, perhaps they may have even been

17 expected to take food home?

18 MR. JONES: Your Honour, when I asked questions of this nature,

19 it was objected date unspecific, time unspecific, speculative. I think

20 that question is all those things.

21 JUDGE ESER: Sir, I am referring to attacks that are part of the

22 indictment. Let's take Fakovici or Bjelovac. When soldiers living -- or

23 fighters living in their families, would they only take away or clear the

24 village, or would they also take certain things, for instance food, back

25 to their own families?

Page 5481

1 A. It's difficult for me to answer that question. In fact, I don't

2 think I can. I would merely be speculating as to what actually was the

3 case. The fact is fighters lived with their families. Whether their

4 women were the first to get there and snatch the food is something that I

5 can't say. I am not a witness who can answer this question.

6 JUDGE AGIUS: We are in the realm of speculation here.

7 JUDGE ESER: All right. Thank you very much.

8 JUDGE AGIUS: I thank you, Judge Eser.

9 So Mr. Jones, I understand has got some questions. Please try to

10 finish, Mr. Jones, and allow some time for the discussion, brief

11 discussion on your motion because I can tell you more or less because we

12 have already discussed it amongst ourselves what the position is but we

13 have to make things clear to the organisation of the Tribunal obviously.

14 Plus we need some information as well.

15 MR. JONES: Yes, thank you, Your Honour. And for my part it's

16 more important to deal with this witness's evidence.

17 JUDGE AGIUS: Obviously. We owe it to the witness to send him

18 home today.

19 MR. JONES: Thank you, Your Honour. I apologise for the

20 technical difficulties. I think I'm okay now.

21 Further cross-examination by Mr. Jones:

22 Q. Dr. Mujkanovic, just a few final questions arising from the

23 questions which have been put from the Bench, firstly concerning the

24 relationship between Naser Oric and Zulfo Tursunovic. You told us last

25 week that Zulfo was an independent character. You described him a

Page 5482

1 little. Today in answer to His Honour's question, you mentioned him as

2 one of the commanders being under Oric.

3 My question is I want you to consider the real situation, the

4 actual reality of the relationship between the two men. Considering

5 their personalities, did you -- do you think or did you see Naser Oric

6 ordering Zulfo Tursunovic around? Was that possible?

7 A. I never saw Naser order Zulfo Tursunovic around. Zulfo was also

8 a person of highly disputable character. He takes nothing from anyone.

9 He's a very exclusive person, and I said so when I talked about Zulfo

10 Tursunovic. He would occasionally come down to Srebrenica. It would

11 happen once a week or once a fortnight. Whenever he came, everyone gave

12 him a wide berth. No one wanted to be near him because he was a violent

13 man. He would sometimes use firearms, too.

14 JUDGE AGIUS: We are repeating now.

15 MR. JONES: Yes.

16 Q. Let me stop you there and if you could give brief answers, if

17 possible. Do you exclude the possibility that Zulfo acted independently,

18 as an independent commander of Naser Oric?

19 A. I don't think I understand the question. Do I exclude the

20 possibility -- I'm not sure I got the latter part.

21 Q. Okay. Let me do it this way: Is it possible that Zulfo

22 Tursunovic in fact acted as an independent commander, at least in certain

23 matters or certain actions?

24 A. In most of the cases he ran an entire area and he wouldn't let

25 anyone interfere with his job. If there was something he liked, he would

Page 5483

1 accept it, but he was a very exclusive person. He ran the Susica area

2 and he wouldn't allow anyone near. You couldn't even go there unless you

3 had been invited there by him specifically; that was the only way you

4 could go.

5 Q. Would that include Naser Oric, that he could only go in that area

6 if invited?

7 A. This applied to everyone, Naser and everyone else, including

8 myself. I was never allowed to go. I did go to see him twice, but both

9 times I was picked up by him in person. That was the only way you could

10 get there.

11 Q. Okay. Now, you were asked also about Motorolas. Isn't that

12 right that you don't know how they were used or if they were used at all

13 in the enclave?

14 A. I don't know how Motorolas are used because I never used one

15 myself. I saw that Hakija Meholjic had one or two sets of these. He had

16 one and Velid Delic had the other. I know they had those Motorolas.

17 Hakim was a police officer and it was probably an item inherited from the

18 MUP, the former MUP, for communications.

19 Q. Now, you were shown a passage in your 2000 statement where you

20 talked about Naser Oric's command encompassing 12.000 people. Now I want

21 to preface my question by the following: You told us about siege in the

22 enclave, shelling lack of uniforms, lack of rules, the absence of

23 barracks, the absence of an armoury, the fact that salaries weren't paid.

24 Now, given that, are you saying that Naser Oric had effective real

25 control over 12.000 fighters in Srebrenica, or are you saying something

Page 5484

1 else?

2 JUDGE AGIUS: I think in the part that I read to him from the

3 statement it said 12.000 was the number, but the ones who were fighters,

4 soldiers as it is in the statement, amounted to 10.000, not 12.000.

5 MR. JONES: Okay. My apologies.

6 Q. But even for 10.000 people, are you saying that Naser Oric had

7 control over each and every one of those 10.000 people?

8 A. I believe I've said this. He has no control whatsoever over

9 Hakim Meholjic's unit. He may have had partial control over Zulfo

10 Tursunovic's unit, and I have already explained what their relationship

11 was like. He has no control over Akif Ustic's unit.

12 I can't say exactly what their respective strengths were of these

13 units. I mean -- but if we consider these to be formal units, those were

14 units beyond his control.

15 Q. And would it be fair to say that when you refer to that -- those

16 10.000 people, you're actually saying that there were 10.000 able-bodied

17 men in the enclave of 80.000 people?

18 A. First of all what I would like to tell the Trial Chamber is that

19 the figure used and cited here is something that was never officially

20 endorsed. I never received a document based on which I could judge that

21 there were 10.000 or 12.000 combatants. This was a speculative figure.

22 The same applies to the actual numbers of people living in the area, the

23 local population. Those were just guesswork, the figures. I wouldn't

24 stick to these therefore, this figure, about the 10.000 or 12.000 people

25 who defended Srebrenica.

Page 5485












12 Blank page inserted to ensure pagination corresponds between the French and

13 English transcripts.













Page 5486

1 Q. Right. So the 10.000 -- that figure refers to the people who

2 were defending Srebrenica. Is that correct?

3 A. That's right.

4 Q. Now, you told us last week that the War Presidency was the

5 supreme authority in Srebrenica. Today you were asked about whether

6 Fejzic was under Naser Oric, so to speak. It's right, isn't it, that

7 Hamdija Fejzic was not the President of the War Presidency, firstly, was

8 he?

9 A. No. Hamdija Fejzic was President of the Executive Board of this

10 sort of War Presidency, and the President of the War Presidency was

11 Hajrudin Avdic.

12 Q. And is it right, sir, that you don't know the power relationship,

13 if I can describe it that way, between Fejzic and Oric or between Avdic

14 and Oric when you were there?

15 A. I'm not sure I understand. The power relationship -- I'm not

16 sure I understand what you mean.

17 Q. You're not able to say, are you, whether Fejzic deferred to Naser

18 Oric or whether Avdic deferred to Naser Oric or vice versa, are you?

19 That's something beyond your knowledge?

20 A. I really couldn't say.

21 Q. Right. Now, is it right also - and we saw this in your statement

22 - where it appears that you said Naser Oric saw you as competition. Is

23 it right that that's not something which you ever said?

24 JUDGE AGIUS: He's told us that already I think.

25 MR. JONES: It's not entirely clear from the transcript.

Page 5487

1 JUDGE AGIUS: No, no, no you're perfectly entitled to ask him the

2 question. I took him when he answered my question that he did not

3 confirm that he ever stated that.

4 MR. JONES: Right. Well, taking that answer --

5 JUDGE AGIUS: But please do put the question to him.


7 Q. It's right, isn't it, that you never said that?

8 A. Definitely not. I don't think you could compare Naser's role to

9 my role. I was a surgeon. I'm not sure how I could have aspired to

10 anything in particular or pose a threat of competition to him.

11 Q. Do you feel that generally looking at the passages of the

12 statement, 2000 statement, which you've been shown that it distorts what

13 you told the investigators?

14 A. When I was shown the Bosnian version of the statement, I said

15 that it was not consistent with the spirit of my interview. I said it

16 right at the outset. I said there were entire portions that were simply

17 not consistent or were taken out of the overall context of my account,

18 and even worded in the first person as if I had been saying: I did

19 so-and-so and not presented in a more global light.

20 JUDGE AGIUS: But once we are on this matter. I put it to you

21 that this particular reference that you were asked to comment about and

22 which I asked you before, in other words the part where according to the

23 statement you say that after your insistence to have in place an

24 operations headquarters, Oric was against it and considered you as a

25 competition, you're telling us that you never said that. But when you

Page 5488

1 were proofed before you started your evidence by the Prosecution, you did

2 not say anything about this particular part of the statement. Is that

3 correct? You were proofed -- when you arrived here in The Hague you were

4 shown your statement in the Serbian language --

5 THE WITNESS: [Interpretation] Yes.

6 JUDGE AGIUS: And there were several corrections that you made to

7 it, several points that you made in relation to that statement saying

8 that it is not correct.

9 THE WITNESS: [Interpretation] Yes.

10 JUDGE AGIUS: [Previous translation continues]... is not one of

11 them. I put it to you that --

12 THE WITNESS: [Interpretation] This is not something that we

13 discussed. Whenever we came to a session that I discussed with Mr.

14 Wubben, I would always say so and specify the corrections I wanted made,

15 but there were plenty of things there that we never even got down to

16 discussing.


18 Q. Right. And following on from that, it's not true to say, is it,

19 that proofing notes reflect all of your disagreement with the statement?

20 JUDGE AGIUS: That's the --

21 MR. WUBBEN: Yes, Your Honour --

22 JUDGE AGIUS: That's the point I wanted to make.

23 MR. JONES: Well, if that's clear. Hopefully that's a matter

24 between the parties which should be abundantly clear.

25 JUDGE AGIUS: Yes, Mr. Wubben.

Page 5489

1 MR. WUBBEN: I don't know whether or not the witness can answer

2 this question --

3 JUDGE AGIUS: Well, he is saying that what you have here is the

4 result of what you discussed, but it is not excluding that there are

5 other points in the witness -- in the statement that he doesn't agree

6 with and that he didn't comment about because he was not asked about

7 those particular parts. This is what he is saying.

8 MR. WUBBEN: Right.

9 MR. JONES: Perhaps that's a matter we can discuss in the absence

10 of the witness.

11 JUDGE AGIUS: It's not important because as I said, we are only

12 looking at the statements from a relative point of view and not as

13 testimony.

14 MR. JONES: Yes. Well, you can see my concern is I don't want it

15 to be thought that the only corrections in the proofing notes are the

16 only differences --

17 JUDGE AGIUS: That's the point I wanted to make. And that's why

18 I intervened. Please proceed.

19 MR. JONES: Thank you.

20 Q. Now, Dr. Mujkanovic, when you told the investigators that you

21 weren't happy with the statement as a summary, what you said, how did

22 they react?

23 A. I said it first thing in the morning at our meeting. I said

24 there were a lot of things there that were out of context. I showed them

25 entire portions of the document, and I was told not to pay that much

Page 5490

1 attention to what the statement said, that the Trial Chamber would only

2 take into account my personal testimony.

3 I was told that everything that was hearsay, everything that I

4 could not substantiate in terms of who I heard it from was not something

5 I should work with, was not something that I should base any conclusions

6 on. I was told that the judicial system in my country attaches more

7 importance to oral statements. But for this Trial Chamber, the most

8 important thing would be whatever I say during my testimony, and that

9 only this would be evaluated.

10 There were quite a number of things that we didn't even touch

11 upon. We did make some corrections whenever we came across things that

12 needed correcting.

13 Q. Thank you. Now, I've got still about 20 questions. I'll be

14 grateful if we could -- if you could answer with a yes or no where

15 possible, because I only have about 15 minutes. Firstly, concerning

16 authorisation to use the radio and you being told that Naser Oric had to

17 grant such authorisation. Is it right that you were only told that once?

18 A. What do you mean only told that once?

19 Q. Was that something which was told to you on one occasion or more

20 than one occasion?

21 A. Once. Becirevic, who operated the radio equipment, was the one

22 who told me.

23 Q. Right. Now, you also told us that Naser Oric informed you that

24 he was reporting to Sefer Halilovic. Isn't it right that you don't know

25 for a fact whether or not Oric did report to Sefer Halilovic?

Page 5491

1 A. Well, look, Naser Oric never spoke to me about whom he reported

2 to. I heard about this from Becirevic, Ibrahim. When I was in the post

3 office, he would say for example Well, I have provided a connection with

4 Sarajevo, et cetera, so I was never present when Naser Oric spoke to,

5 let's say, Sefer Halilovic. So there's nothing I could say about that.

6 I couldn't say that this is something I heard.

7 Q. Right. Thank you. You were also asked today about a passage in

8 your 2000 statement where it was said that: There wasn't much of an

9 interest in capturing Serb soldiers."

10 But you also refer -- it's page 23 of your statement: "At

11 Skelani a passage was made so that Serbs could get away."

12 Now, is it right to understand --

13 JUDGE AGIUS: I did not read that paragraph to him. And in any

14 case, it's not important because we don't have in the charges killing

15 during offensives.

16 MR. JONES: Yes. It was just to --

17 JUDGE AGIUS: Killings in the prison in Srebrenica. So it's

18 not --

19 MR. JONES: It's just that statement refers to passage being made

20 so soldiers can escape.

21 JUDGE AGIUS: You might as well forget it because it's of no

22 importance or consequence.

23 MR. JONES: I'm obliged, Your Honour.

24 Q. You were also asked about a statement in your 2000 statement

25 where you talked about three waves of people coming into villages. Isn't

Page 5492

1 it right that you never actually saw three waves of people come in one

2 after the other in the way that was set out in your statement?

3 A. Well, naturally I didn't see that. I was speaking about

4 Podravanje, about when I saw some people who were there and -- well, I've

5 testified about this. I won't go into it again. But there was a rumour

6 in Srebrenica according to which there were three waves. The first wave

7 consisted of people who would take out what was essential; and then there

8 was a second wave would go there in search of other items; and then a

9 third wave consisting of people who would go and search for items with

10 sticks of some kind to probe the ground, et cetera.

11 Q. And that was a rumour which you heard?

12 A. That's what I said.

13 Q. All right. Thank you.

14 Now, you also were asked possibly to speculate about whether

15 houses were burnt down possibly to prevent Serbs from returning, and you

16 accepted that possibility. So following on from that, your acceptance of

17 that possibility, I put it to you that it's also possible that houses

18 were burnt so that Serbs wouldn't come back and shell and snipe and shoot

19 from those houses. Do you accept that possibility?

20 A. That's also possible. I've expressed my personal opinion. There

21 will probably be other witnesses who will be in a better position to

22 clarify this for you; that's also a possibility though.

23 Q. We also saw in your 2000 statement reference to Naser as a king

24 with huge powers. But here you've told about us as him as a 25 years old

25 with rivalries with other commanders. And when I put it to you that he

Page 5493

1 was drunk with power, you said what power. So is it right that you do

2 not maintain that Naser was a king with absolute powers in the enclave?

3 JUDGE AGIUS: When I asked him the question, he told us that he

4 does not confirm that he ever said that to the investigator.

5 MR. JONES: Okay. I can withdraw that question if that's clear.

6 Q. Now, page 19 at the top of your -- page 19 of the 2000 statement

7 at the top it's stated: "Oric was the person in charge of maintaining a

8 professionally organised operation."

9 You don't need to look at it, you can take that phrase

10 "professionally organised operation."

11 Now, isn't that right that there wasn't such thing as a

12 professionally organised operation the whole time you were in Srebrenica?

13 A. Mr. Jones, I've been speaking about the fact that Srebrenica

14 didn't have an organised army for six days now. They didn't have

15 combatants; the civilian authorities hadn't been authorised; the judicial

16 authorities didn't exist. Everything had been improvised. So when I

17 speak of my job as a doctor, as a surgeon, when I speak about the fact

18 that that was improvisation, everything was improvised. So it's for you

19 to draw your own conclusions.

20 Q. Thank you. Now, I won't ask you about the actions because I

21 think it's clear. You stated that you don't know who -- that Naser Oric

22 was present at any of those actions. Skelani was briefly touched on.

23 Are you aware that in fact the Skelani people, if I can put it that way,

24 Ahmo Tihic and others, outvoted Naser Oric who was in favour of attacking

25 Bratunac, contrary to what is set out in your 2000 statement?

Page 5494

1 A. I said that there were two options, two possibilities, either

2 Bratunac or Skelani. As to how the decision was taken, as to how they

3 decided which direction they should go to, I couldn't say. But I know

4 that there were events that took place in Skelani. I don't know how this

5 happened, but I also know that the opinion prevailed according to which

6 Skelani was part of Srebrenica municipality. And that by taking Skelani,

7 the entire municipality of Srebrenica would in a sense be liberated;

8 whereas an attack on Bratunac would have resulted in the fact that

9 Srebrenica would still be under Serbian occupation. That's what I heard,

10 but I wasn't present at any meetings --

11 JUDGE AGIUS: [Previous translation continues]... you're going

12 at a tangent around and around and around and you're not answering the

13 question. The question very simply put to you was the following: You

14 said or you are reported in your statement - and you confirmed to me when

15 I put the statement to you - that all -- after that the operations staff

16 had been planning to attack Bratunac, Oric two days before decided to

17 attack Skelani instead. It's been put to you by Mr. Jones that even if

18 Oric decided two days before to attack Skelani instead, it's not because

19 he wanted to attack Skelani but because he had been overruled by Avdic --

20 MR. JONES: No, by Ahmo Tihic and was outvoted --

21 JUDGE AGIUS: Outvoted by Ahmo Tihic and others. Are you aware

22 of this or not? And answer --

23 THE WITNESS: [Interpretation] I'm not aware of that.

24 JUDGE AGIUS: Mr. Jones, next question.


Page 5495


2 Q. You told us how the War Presidency operated on the basis of one

3 man, one vote, and you said it was the ultimate authority. It may be an

4 obvious point, but it's right, then, it's not true to say, is it, that

5 Oric controlled the War Presidency, that he had it in the palm of his

6 hand; that's not true, is it?

7 A. I never said that. The War Presidency, that's not something that

8 I said. Never once did I say that Naser Oric controlled the War

9 Presidency. I said that the War Presidency was the highest organ of

10 power in Srebrenica. That is what I said.

11 JUDGE AGIUS: All right. Next question.

12 MR. JONES: Yes.

13 Q. We also saw in the 2004 statement discussion, again, of the

14 resignations of the operations staff. And we saw a document with your

15 testimony in which Osman Osmanovic was proposing an appointment to the

16 War Presidency. In your 2004 statement it says that Naser Oric didn't

17 give much importance to the operations staff. Now, I put it to you that

18 that's because he was no part of that structure, of the operations staff

19 structure. Do you accept that that might be why it was not important to

20 him that his formation --

21 A. He wasn't in the operations staff; that's correct.

22 Q. Now, looking at this question again of doing the impossible,

23 preventing civilians from burning villages, you've explained how villages

24 were miles apart on hilly terrain. We've seen this expression of Oric

25 taking the easy way out. There is no non-easy way out, was there? There

Page 5496

1 was nothing that could be done.

2 A. I said, and this is something we have been discussing all along,

3 and I still claim that no one could have done anything in that situation,

4 neither Naser Oric or someone with even more authority. Even the

5 established organs of power couldn't have done anything. I tried to

6 clarify the situation to the Chamber, I tried to explain the structure of

7 the villages. There may be one house on one hill, another on another

8 hill, and a distance of many kilometres between these two hills. It was

9 impossible to control such a vast area.

10 JUDGE AGIUS: Yes, Mr. Wubben.

11 MR. WUBBEN: Just to be complete, Your Honour, the question was

12 Was there nothing that could be done of course, as far as the witness is

13 aware?

14 JUDGE AGIUS: Of course. We could get another witness come

15 forward and say that everything could be done --

16 MR. JONES: 10.000 --

17 JUDGE AGIUS: Right, exactly.


19 Q. Just three final questions. You were asked about civilians and

20 how given the lack of uniforms it was difficult to tell whether someone

21 was a civilian or a fighter. But isn't that right that you also told us

22 that women, children and old people looted? And would you accept that

23 those people are not fighters? Let me leave it that way.

24 A. I've told you about what I saw in Podravanje. There were women,

25 children, elderly people. That was the group of people -- not a group of

Page 5497

1 people. There were a thousand people there; that's certain. At various

2 locations. And they were taking items out of the warehouses over there,

3 and I said that I saw them set fire to an excavator that was there.

4 Q. When you refer to women, children, elderly people, you refer to

5 them as civilians?

6 A. Naturally. No women participated in the defence of Srebrenica.

7 I didn't see a single woman who was a combatant.

8 Q. Two final questions. One concerns this storage facility in

9 Potocari that you've been asked about today. Isn't that right that that

10 was the house where Naser Oric's mother and father lived, if you know?

11 A. That's the house I referred to. Oric's father and mother lived

12 there, his brother, and Oric himself, Naser Oric himself. I'm referring

13 to the same house, not to some other house.

14 Q. Did you see food stored there yourself? Did you go there and see

15 the food stored?

16 A. No, I didn't. No. No.

17 Q. Do you accept that there were other sources of food besides what

18 was looted, in other words food from convoys, from home-made bread, from

19 air drops?

20 A. Well, that's what I told the Trial Chamber. The first convoy

21 entered towards the end of November 1992, the second one seven days

22 later. And then there was a certain period of time until March 1993 when

23 there were no convoys, until mid-March. There were certain sources of

24 food, but they weren't sufficient for the entire population there.

25 Q. And one final question. Quite apart from the impossibility of

Page 5498

1 stopping civilians from looting food, do you agree that from what you saw

2 of the public-health situation that if those people were prevented from

3 taking food, many of them would have starved to death?

4 A. Well, there were cases of starvation. It's been recorded by

5 journalists who were there. There were people who starved to death as a

6 result of not eating anything for 10, 12, or 13 days. And they were also

7 malnourished. A quarter of the food wasn't sufficient.

8 JUDGE AGIUS: I take it you don't have any further questions, Mr.

9 Jones.

10 MR. JONES: Yes. Thank you, Your Honour, for giving me the

11 opportunity and thank you, Witness, for your full answers.

12 JUDGE AGIUS: You have procedural right for that, to that

13 opportunity. So I thank you, Mr. Jones, for having cooperated and

14 finished in good time.

15 Dr. Mujkanovic, we have come to the end. We did our best to make

16 sure to finish with your testimony today so you are free to go now. You

17 will be escorted by our usher. On behalf of --

18 MR. WUBBEN: Your Honour, I take it you presume that I have no

19 questions. But I want to confirm --

20 JUDGE AGIUS: I take it --

21 MR. WUBBEN: I do by now.

22 JUDGE AGIUS: I thought so because you had an opportunity to

23 indicate that before and you didn't, so I assume that you didn't.

24 So you will be escorted by our usher very soon. And on behalf of

25 Judge Brydensholt and Judge Eser and on my own behalf I would like to

Page 5499

1 thank you for coming over. It hasn't been easy for you because it's a

2 long time that you have been here and I appreciate your cooperation with

3 this Tribunal. My last words to you before you leave this courtroom is

4 that on behalf of everyone present here we wish you a safe journey back

5 home and thank you.

6 THE WITNESS: [Interpretation] Thank you, Your Honours.

7 [The witness withdrew]

8 JUDGE AGIUS: Now, let's do this quickly. I do not intend to

9 stay one second more than 7.00 because I think we've had too much

10 cooperation from everyone. So I don't want to -- anyone.

11 You have a motion, you would like this Trial Chamber not to

12 proceed from now on, having finished with this witness.

13 MR. JONES: Well, Your Honour, I can modify the motion to this

14 extent: Today I was in touch with -- are we in private session?

15 JUDGE AGIUS: Let's go into private session because this is one

16 of the things because of course I am going to ask you what the situation

17 is because, apart from the motion itself, we need to plan. Let's go into

18 private session.

19 [Private session]

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 5500











11 Pages 5500-5504 redacted. Private session.















Page 5505

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 [Open session]

8 JUDGE AGIUS: We are in open session. Following the debate we

9 have just had, the position of the Tribunal is as follows: It appears

10 that Madam Vidovic is indisposed and that she requires some time, a short

11 time, relatively speaking, before she can recommence her role as lead

12 counsel and attend the sittings.

13 The Trial Chamber has also heard the Prosecution, that does not

14 -- after having heard Mr. Jones does not object to an adjournment until

15 Madam Vidovic returns and is in the position to resume the -- her role

16 and cross-examine the next two witnesses. Consequently, there will be a

17 rescheduling and there will be an interval of time in which we will not

18 sit. And this is expected to be of a short duration because Madam

19 Vidovic is expected to return to work sometime next week and then should

20 be in a position to take over again shortly after that.

21 The position of the Tribunal is that if there is any substantial

22 change in the circumstances or if there is even the slight indication

23 that Madam Vidovic's return could be delayed further than has been

24 indicated by you, Mr. Jones, then I need the commitment -- your

25 commitment that you will communicate this to the registrar straightaway,

Page 5506

1 in other words that you will communicate with us straightaway and also

2 with the Prosecution so that we will decide what's best needed in the

3 interests of justice.

4 MR. JONES: Yes. I can certainly undertake to give the most

5 detailed and regular updates to both your staff and the Prosecution to

6 keep you abreast of the latest developments.

7 JUDGE AGIUS: Yes. The other thing is that I would appreciate if

8 you could file privately and in confidential -- confidentially a -- an

9 indication of what the problem is so that on -- from our part we can also

10 make our own assessment.

11 MR. JONES: Yes, I'll do that.

12 JUDGE AGIUS: Yes. I appreciate your cooperation.

13 The other thing is this: We have a meeting scheduled for Friday

14 to discuss you-know-what. Do I cancel that meeting?

15 MR. JONES: I think I can attend on behalf of our team.

16 JUDGE AGIUS: All right.

17 So the meeting we have at Friday at 2.30 stays, remains.

18 [Trial Chamber confers]

19 JUDGE AGIUS: Last -- so the meeting stands.

20 MR. WUBBEN: Correct.

21 JUDGE AGIUS: Last thing is: This has been a difficult sitting

22 more or less, and I needed the cooperation of everyone. In particular, I

23 want to thank the staff, technical, interpreters, the rest, you, Mr.

24 Jones; the registry for having been kind enough to supply us with an

25 interpreter without which we couldn't have proceeded today; and I thank

Page 5507

1 you you, Madam, for your cooperation.

2 We'll meet again on Friday in my room. Thank you.

3 --- Whereupon the hearing adjourned at 7.01 p.m.,

4 to be reconvened on Monday, the 7th day of

5 March, 2005