Tribunal Criminal Tribunal for the Former Yugoslavia

Page 7533

 1                           Monday, 29 June 2009

 2                           [Open session]

 3                           [The accused entered court]

 4                           --- Upon commencing at 2.27 p.m.

 5             JUDGE MOLOTO:  Good afternoon to everyone in and around the

 6     courtroom.

 7             Mr. Registrar, could you please call the case.

 8             THE REGISTRAR:  Good afternoon, Your Honours.  Good afternoon to

 9     everyone in and around the courtroom.  This is case number IT-04-81-T,

10     The Prosecutor versus Momcilo Perisic et al.  Thank you.

11             JUDGE MOLOTO:  Thank you very much.

12             May we have the appearances for today, starting with the

13     Prosecution.

14             MS. BOLTON:  Good afternoon, Your Honours.  It's Carmela Javier,

15     Lorna Bolton, and Mark Harmon for the Prosecution.

16             JUDGE MOLOTO:  Thank you.

17             And for the Defence.

18             MR. GUY-SMITH:  Good afternoon, Your Honour.  Daniela Tasic,

19     Chad Mair, Kay Marshall, Colleen Rohan, Milos Androvic, Novak Lukic, and

20     I'm Gregor Guy-Smith on behalf of Mr. Perisic.

21             JUDGE MOLOTO:  Thank you very much.  Good afternoon to you out in

22     New York, or good morning, rather, Mr. Sacirbey and everybody down there.

23             Mr. Sacirbey, just to remind you once again that you are still

24     bound by the declaration you made at the beginning of your testimony to

25     tell the truth, the whole truth, and nothing else but the truth.

Page 7534

 1             THE WITNESS:  Good morning, Your Honours, and fully understood.

 2     Thank you.

 3             JUDGE MOLOTO:  Thank you so much.  May the record show that we're

 4     sitting pursuant to Rule 15 bis this afternoon in the absence of

 5     Judge Picard who is involved in a another case this afternoon.

 6             Mr. Guy-Smith.

 7                           WITNESS:  MUHAMED SACIRBEY [Resumed]

 8                           [Witness testified via videolink]

 9                           Cross-examination by Mr. Guy-Smith:

10        Q.   Good morning, Mr. Sacirbey.

11        A.   Good morning, Mr. Guy-Smith.

12        Q.   I'd like to start my examination for a moment to just deal with

13     what I will call a couple of rules of the road that I hope that we can

14     comply with as we proceed through your testimony for the ensuing period

15     of time.  Initially, when I ask you question, I'd appreciate it, to the

16     extent you can, to give me a yes or no answer to the question that I have

17     asked.  Obviously if you need to explain that answer, I certainly would

18     have no objection; I would expect you to do so.

19             With regard to another particular issue, because we both speak

20     English, and there's a tendency when two native speakers are speaking in

21     the same language for us speed up in our conversation.  I'm going to try,

22     and I know it's a long shot, that we won't do that, but I'm going to

23     wager with you here.  And try to -- if we could make a bet with each

24     other to see if we could succeed in not being interrupted by the

25     interpreter in attempt to get us to slow it down, I think that that might

Page 7535

 1     be of some assistance, okay?

 2        A.   Fine enough.

 3        Q.   You've led, sir, from what I can tell, somewhat of a unique and

 4     interesting life, and I'd like to spend some time with you talking about

 5     how you got to your position as the ambassador.

 6             And I understand that you came to the United States as a

 7     teenager; correct?

 8        A.   When I was ten years old.

 9        Q.   And thereafter, you matriculated as we all do, and ultimately

10     ended up in university, I believe, in Louisiana; is that correct?

11        A.   That's correct.

12        Q.   And what university was that, sir?

13        A.   Tulane University.

14        Q.   And could you tell us when you went to Tulane University.  What

15     was the period of time that you were at Tulane?

16        A.   I was there both undergraduate and law school.  So I was there

17     from 1974 to 1980.

18        Q.   Okay.  And after law school, did you remain in Louisiana, or did

19     then journey forth to New York?

20        A.   I came to New York.

21        Q.   And when you came to New York, as I understood your testimony,

22     you began working as an attorney for a number of years, and if I'm not

23     mistaken -- well, let's deal with that first.  You worked as an attorney

24     for a number of years; correct?

25        A.   Actually, that is not correct.  I came primarily to New York to

Page 7536

 1     go to Columbia business school where I had been accepted a year earlier,

 2     and in the meantime, I started doing some part-time jobs while I took my

 3     bar exam.  Upon passing my bar exam, I was offered a full-time position

 4     for counsel Standard & Poor's at that time, and continued to complete my

 5     M.B.A. at Columbia.

 6        Q.   With regard to the work that you were doing as counsel for

 7     Standard & Poor's, I understand that you were an investment banker;

 8     correct?

 9        A.   Well, at Standard & Poor's, you would not be an investment

10     banker; you would be an analyst reviewing various types of instruments

11     that Standard & Poor's would either issue ratings on or otherwise.  I

12     became an investment banker once I left that Standard & Poor's.

13        Q.   During the period that you were at Standard & Poor's, when you

14     were in engaging in financial analysis, I take it that -- were you doing

15     that for any specific sector of the -- of the industry?  Or were you just

16     doing general analysis --

17        A.   Initially -- I --

18        Q.   Go ahead.

19        A.   Well, initially, as I said, I was working as counsel for them, so

20     I would a have been really counsel mainly for the debt-rating division,

21     mainly reviewing structure-type financing, but it really -- whatever the

22     requirement was, I was more or less stationed in their offices, even

23     though I was employed by their outside counsel.  In fact,

24     Standard & Poor's at that time did not have -- did not have in-house

25     counsel, so in many ways I was de facto in-house counsel.

Page 7537

 1        Q.   Now, when you say you were doing work in debt rating -- in the

 2     debt-rating division, is that the kind of work that deals with such

 3     things as government bonds?

 4        A.   Not -- not -- it may deal with sovereign ratings, yes, but it

 5     could have been anything from structured financing to corporate and

 6     municipal securities.

 7        Q.   Okay.  And with regard to the work that you were doing as an

 8     analyst, I take it, that's a kind of work that requires some rather

 9     meticulous record-keeping, does it not?

10        A.   Actually, most of the time I was not the primary analyst.  As I

11     said, I was in fact the attorney reviewing those deals, or in fact I was

12     the head of a department who was overseeing those types of transactions

13     once I relinquished my primary responsibility as counsel.

14        Q.   Okay.  With regard to your reviewing those deals, I take it that

15     it would be fair to say that you relied on the analyst's work that in

16     fact contained meticulous record-keeping; correct?

17        A.   The -- most of the data came from actually the issuer of the debt

18     or the investment banker.

19        Q.   Okay.  With regard to the -- the question of having the ability

20     to have facts in front of you in order to make determinations of a legal

21     nature with regard to those facts, you relied upon, what I would say is a

22     fair amount of documentary evidence; correct?

23        A.   Documentary and analytical evidence; that's correct.

24        Q.   And when you say analytical evidence, you are referring to

25     evidence that also, similarly, is written down; correct?

Page 7538

 1        A.   Yes.

 2        Q.   All right.  Now, there's nothing particularly unusual with regard

 3     to keeping records in that regard, is there?  It's part of the nature and

 4     course of the business.  True?

 5        A.   I believe I understand your question, and the answer is yes.

 6        Q.   And, as a matter of fact, that's something you clearly, if you

 7     hadn't learned it in undergraduate school, it is something that you

 8     clearly learned while you were in law school, which was the importance of

 9     memorializing facts and events.  Correct?

10        A.   Correct.

11        Q.   It's something that you then learned in even a more a

12     sophisticated way when you were obtaining your M.B.A., right?

13        A.   That's correct.

14        Q.   And it's something that, certainly, for some period of your life

15     is and -- an exercise that you both personally, as well as

16     professionally, engaged in, and by that I mean, the keeping of records so

17     that you would have a historical account of what occurred; right?

18        A.   Most likely, yes.

19        Q.   When you say "most likely," is there any doubt in your mind that

20     that is something you did during the time that you were both counsel for

21     Standard & Poor's and at a later point in time when you were an

22     investment banker?

23        A.   I believe you were speaking about both professionally and

24     personally.

25        Q.   That's true, I did ask you the question that way.  So let's deal

Page 7539

 1     with it, first of all, professionally.  With regard to --

 2        A.   No, professionally, I feel quite comfortable --

 3        Q.   Professionally you feel quite comfortable --

 4        A.   Please go ahead.

 5        Q.   Professionally you feel quite comfortable --

 6        A.   That's correct.

 7        Q.   Okay.  And personally, I'm not asking you --

 8        A.   No --

 9        Q.   And personally, I'm not asking whether you kept a diary or not.

10     I'm not attempting to inquire into your personal life in that regard.

11        A.   Okay.

12        Q.   Okay.

13        A.   So I think, professionally, I have no doubt that in fact the

14     record-keeping that was undertaken was quite consistent with the

15     responsibilities that I had.

16        Q.   Okay.  And when you say, "quite consistent with the

17     responsibilities that you had," could you define for us what those

18     responsibilities were?

19        A.   Well, again, when we're talking about my job at Standard &

20     Poor's, again I emphasise most of my career there, I was either counsel

21     where I would not certainly be reviewing the numbers, or I was the head

22     of a department, sometimes the department that was involved in even what

23     was then called new product development, that was analysing new types of

24     ratings in theory.  So the actual work on deals usually was done by what

25     was called the lead analyst or the analyst that actually had the direct

Page 7540

 1     responsibility for the rating.  And that analysis would frequently rely

 2     upon information submitted by the issuer of the debt, if it was a debt

 3     instrument, or the corporation or, of course, the investment banker that

 4     was behind such instruments.

 5        Q.   Okay.  And with regard to that work, when you were reviewing the

 6     work that was done by the analyst, you were assuming, were you not, that

 7     the information that you had was complete, accurate, and reliable?

 8        A.   That -- that was usually the representation made by the issuer

 9     and the investment banker; that's correct.

10        Q.   And part of your job, certainly at that point in time, in your

11     determination whether to rely upon the analysis which was predicated on

12     facts was your assessment of the totality of that information as being

13     complete, accurate, and reliable.  True?

14        A.   That's correct.

15        Q.   Okay.  Is one of the things that you -- you analysed during that

16     period of time such things as the expenditures that any particular

17     project that was being presented to your analysts were?

18             Do you understand my question?

19        A.   Again, I think I do, and the answer, of course, is that you took

20     those issues at face value that were prevented to you, unless there was

21     some reason to really suspect that the information was inaccurate.

22        Q.   And the manner upon which you would make that determination, and

23     by that I mean suspecting that information was inaccurate, was based upon

24     information that had been supplied to you by your own analysts; correct?

25     I mean, that was one -- it could be one of the manners in which you did

Page 7541

 1     that, but it certainly was one.

 2        A.   Yeah.  By and large you wouldn't have that type of challenge

 3     because obviously the issuer, i.e., the investment banker would have a

 4     much better understanding of what was involved.  Generally, obviously you

 5     were conscious of who were dealing with, the more experience had you the

 6     individuals involved, the firms involved, the companies involved, the

 7     more -- reliant you were upon that information, certainly corporate

 8     issuers, municipal issuers.  Standard & Poor's, the primary rating

 9     analyst dealt with them on a consistent basis.  It was not a disjointed

10     relationship.  It was a consistent relationship.

11        Q.   Okay.  And when you moved into the world of investment banking, I

12     take it that the same discussion that we've had thus far would similarly

13     apply.  And that by I mean that the information that you had in order to

14     make the determinations that you were going to make with regard to

15     investment banking, required to have complete reliable information.

16        A.   By and large, that's correct.

17        Q.   By and large, it's -- it's been said that an investment banker is

18     but a gambler who gambles with other people's money because they have no

19     risk to themselves.  I don't know whether you share that view or not.

20        A.   No, I actually don't.  Maybe a less flattering view is that

21     you're a mercenary putting together financing for someone else with --

22     with obviously no ongoing relationship with that company like a CFO.

23     That's the most unflattering view I can come up with of an investment

24     banker.  Otherwise, you are really helping put together a transaction

25     that tends to meet the capital market requirements, and at the same time,

Page 7542

 1     tends to meet the issuer's, that is, the -- the institutions that's

 2     seeking the financing meets their needs as well.  So to some extent it's

 3     a Rubik's Cube, where every time you move one element of the deal,

 4     something else may come lose.  There may be some other need to be

 5     addressed.  I, frankly, think that if you want to talk about gambling,

 6     it's -- it's properly more of a traders job to be that than it is an

 7     investment banker's.  We viewed our task as being one more of trying to

 8     meet the requirements of various parties to the transaction.  And

 9     generally there were more than two.  There was more than just the issuer,

10     and more than just the potential investor or investors.

11        Q.   So it would be fair to say you were involved at that time in what

12     we could say multi-financial considerations?

13        A.   That's correct.

14        Q.   Okay.  Now, with regard to the period of time in which you were

15     functioning as an investment banker, that was a time, I think, where it

16     would be fair to say, certainly in the mid-1980s to early 1990s, where

17     the market was quite strong.

18        A.   I lived through the downside of the market as well in the very

19     late 1980s/early 1990s.

20        Q.   Mm-hm.  During the period of time that you were living through

21     the high part of the market, did you deviate from your basic behaviours

22     of -- if I'm characterizing this correctly, of noting information,

23     keeping records of that information, and being in a position where you

24     can rely on that information in the future?

25        A.   Yes, by and large we had actually a very significant department,

Page 7543

 1     and I was in charge of that department toward the end of my tenure in

 2     investment banking.  And that involved significant record-keeping, a lot

 3     of individuals associated with that part of the process also working with

 4     the bank, we had a credit department that was also part of process, so

 5     that it was a multi-faceted effort, consistent with what I think you're

 6     saying.

 7        Q.   Okay.  Since you were the, as you have just told us, the head of

 8     the department, I take it - I'm going to jump forward because you said

 9     you also experienced the deadline in the -- in the, I believe, it was

10     late 1980s/early 1990s - that during that period of time, while

11     experiencing the decline, you were able to go back and take a look

12     historically at the investments that you had made to make determinations

13     of what was the most viable and reasonable fashion to proceed financially

14     for your clients.

15        A.   I believe I know where you're going, and I think that's accurate.

16     But once transactions were issued, then in fact what you had is, on the

17     one side, investors.  And on the other side, you had issuers.  The

18     investment banker by and large did not have an ongoing fiduciary

19     responsibility, let's say, like a trustee.

20        Q.   Okay, when you discuss the issue of fiduciary responsibility,

21     could you explain to the Chamber what you mean by that term?

22        A.   You have a responsibility to the people on whose behalf you're

23     dealing.  In the case of my dealings as an investment banker, the

24     responsibility is actually to the issuer, and, at the same time, I may

25     have legal responsibilities consistent with the laws and regulations at

Page 7544

 1     that time to the investor.  But I was by and large, as an investment

 2     banker, employed by the issuer.

 3        Q.   I --

 4        A.   I say employed in the context of being employed for that

 5     particular function.  Of course, my -- my employer was the bank.

 6        Q.   With regard to what you've just said in terms of your last

 7     answer, you said I may have legal responsibilities consistent with the

 8     laws and regulations at that time to the investor.

 9             With regard to the general notion of a fiduciary duty that one

10     has, would it be fair to say that is something that you considered to be

11     an aspect of your work independent of your work as an investment banker?

12     And by that I'm obviously referring to the work that you did later in

13     your life when you became the ambassador.

14        A.   Yes.

15        Q.   Okay.  As I understand your particular narrative or your story,

16     there came a point in time in your life when you were asked to be of

17     assistance to the burgeoning state of Bosnia and Herzegovina,

18     financially.

19        A.   I was asked to assist in potential economic transformations as

20     well as the political transformation, before the division of the former

21     Yugoslavia.  I was never asked to be in any sort of fiduciary or other

22     capacity at that time.  It was purely as someone who had insight into the

23     free-market system, particularly the US market system.  Perhaps because I

24     had some understanding of what was happening in the US, both in the

25     economic and political context.  Certainly the notion of a burgeoning

Page 7545

 1     Bosnia and Herzegovina as an independent state was not, at that time, I

 2     think, really the issue.  At that time it was hoped for by, I think, a

 3     lot of people in the former Yugoslavia, at least certainly system of

 4     them, under the leadership of some of the regional leaders, that the

 5     former Yugoslavia might in fact manage to restructure itself and maintain

 6     some sort of confederal or other lose federal arrangement.

 7        Q.   Okay.  But, and that's not a critical "but."  But part of the

 8     reason that you became involved with the government of Bosnia-Herzegovina

 9     at that time was due to your expertise in the area of investment banking.

10     True?

11        A.   I think you'll probably to have ask those people who sought my

12     engagement, and I must admit that my engagement, probably until the year

13     1992, was, at best, intermittent.

14        Q.   There came a point in time when your engagement shifted from

15     being intermittent to being more constant; correct?

16        A.   That is correct.

17        Q.   Okay.  When you say that your engagement was intermittent prior

18     to 1992, could you tell us what precise, and I'm assuming that you were

19     engaged in financial advice at that time to the Bosnian government, you

20     gave?

21        A.   Actually, I think that would be giving myself too much credit.  I

22     happen to sit in on the meeting with the World Bank directorate that

23     included the former Yugoslavia in Washington.  Maybe I had one, two,

24     three, conversations with President Izetbegovic in a six-month term.

25     Probably starting in February of 1992, when I was asked to arrange a

Page 7546

 1     meeting with the Secretary-General Boutros Boutros-Ghali at that time and

 2     Mr. Cyrus Vance is when my engagement become a little bit more

 3     consistent, although I continued to in fact pursue my career as an

 4     investment banker along with my partners.

 5        Q.   Okay.  And when you were asked to arrange that initial meeting in

 6     February of 1992, was that predicated upon your familiarity with matters

 7     financial, or was that predicated on something else, if you know?

 8        A.   I think it was predicated on the idea that -- well, yes, I guess

 9     that's a fair question.  First of all, I'm not sure necessarily why I

10     would have been asked, expect that clearly I lived in New York, I was an

11     attorney, I knew English and knew my way around the financial and

12     business and legal community here probably better than any other Bosnian.

13     But that may not be saying very much.  There were not very Bosnians at

14     that time who were living outside the country.  That happened only

15     obviously as a consequence of the war.

16        Q.   Okay.  Above and beyond that, there was another reason, was there

17     not, and that is, if I might use some of your language, very simply put,

18     My father and President Izetbegovic were old friends from the

19     Young Muslim's group?

20        A.   That is correct.  And my mother was also, frankly, a part of that

21     group, and she was also friendly with President Izetbegovic.

22        Q.   Now, when you referred to the --

23        A.   By then, I should add, by then my mother had passed away.  That's

24     why she is not mentioned in the context of this narrative.

25        Q.   Okay.  Well, my -- my condolences to you today as much as

Page 7547

 1     yesterday, when one's mother passes away, it is something that leaves

 2     quite a hole in one's life.

 3        A.   She certainly left more than just an emotional hole in my life.

 4     She was a guiding light.  She was a very progressive women, a the same

 5     time managed to deal with her theology and her ideology and her

 6     profession, I think in an extremely positive manner.

 7        Q.   Well, we share that experience, Mr. Sacirbey.  We share that

 8     experience.

 9        A.   I appreciate that.

10        Q.   I'd like to talk to you for a moment about the issue of the

11     Young Muslims group.

12             Now as I understand it --

13        A.   Please do.

14        Q.   As I understand it your father spent, and I believe your mother

15     may have as well, spent some time in -- in jail with

16     President Izetbegovic; correct?

17             JUDGE MOLOTO:  Madam Bolton.

18             Sorry, Mr. Sacirbey.

19             Mr. Sacirbey, sorry, there's -- the Prosecutor is on her feet.

20             Madam Bolton.

21             MS. BOLTON:  Yes, Your Honour, I'm just wondering what the

22     relevance of Mr. Sacirbey Senior's and President Izetbegovic's

23     involvement in the Young Muslims organisation has to any of the material

24     issues at trial.  It's not a matter that was raised during

25     examination-in-chief, so unless it relates somehow to Mr. Sacirbey's

Page 7548

 1     credibility, it has no relevance in my respectful submission.

 2             JUDGE MOLOTO:  Mr. Guy-Smith.

 3             MR. GUY-SMITH:  There is replete in Mr. Sacirbey's testimony

 4     discussions with regard to the issue of perceptions concerning Muslims,

 5     and perceptions concerning multi-ethnic society.  With regard to this

 6     particular information this is but a prefatory question as it relates to

 7     not only that particular issue, which is the issue of the creation

 8     ultimately of a Muslim state, or not, but also to the issue of the

 9     perception outside of what the intent may have been, the outside

10     perception of the world.  And, to the extent that Mr. Sacirbey's father

11     was involved as a Young Muslim, it has some bearing with regard to how

12     those issues were perceived years later.

13             JUDGE MOLOTO:  Yes.

14             MS. BOLTON:  Well, first of all, the question had to do with

15     having Mr. Sacirbey senior having spent time in jail with

16     President Izetbegovic, so that had nothing to do with perceptions of the

17     outside world.  And we heard nothing in Mr. Sacirbey's testimony about

18     perceptions of the outside world in terms of establishing some kind of a

19     Muslim state.  This is nothing that arises out of examination-in-chief,

20     Your Honour.

21             MR. GUY-SMITH:  I respectfully disagree.  This whole issue --

22     this whole issue is an issue that threads through this case.  And

23     probably the argument would take longer than the answers that the brief

24     questions had.

25             JUDGE MOLOTO:  My only concern, Mr. Guy-Smith, is that you're

Page 7549

 1     talking about Mr. Sacirbey Senior's membership of the Muslim's youth

 2     group, not Mr. Sacirbey here.  And I'm not quite sure whether outside

 3     perceptions of ethnicity, as you say, in -- in measures of the Bosnian

 4     state that, perhaps, may emanate from his father.  Are you suggesting

 5     that they are transferrable to him, or what?

 6             MR. GUY-SMITH:  Well, there are a couple of things that I wish to

 7     explore, and perhaps the answer will be no.  I have no way of knowing

 8     what the answer will be.  But among other things, I do believe that

 9     Mr. Sacirbey's father at one point was part of the mission at the UN.

10     And I do believe his father wrote letters to the UN with regard to the

11     position of Bosnia-Herzegovina.

12             JUDGE MOLOTO:  And are those letters --

13             MR. GUY-SMITH:  Whether or not --

14             JUDGE MOLOTO:  Are you attributing those letters to this

15     Mr. Sacirbey?

16             MR. GUY-SMITH:  Excuse me.

17             JUDGE MOLOTO:  Are you attributing Mr. Sacirbey's father's

18     letters to Mr. Sacirbey?

19             MR. GUY-SMITH:  I will find out a later point in time whether or

20     not he is aware of them or not.

21             So far he has adopted every letter that was written on behalf of

22     his delegation.  I don't know whether or not he is going to move away

23     from the letter that his father wrote or not.  I would assume that he

24     would not.  But to the extent that there is a political issue here and to

25     the extent that we have been accused of, among other things, being

Page 7550

 1     prejudiced against Muslims, to the -- the issue with regard to a

 2     philosophy that may well have been shared, may well not have been shared,

 3     but once again, as I said before, the argument takes longer than the

 4     questions.  He may reject it entirely, at which point, we will all be

 5     satisfied.  But the extent to which there was a philosophy taught and

 6     shared by Mr. Sacirbey who is before us is something that I wish to

 7     explore.

 8             JUDGE MOLOTO:  I'm afraid, Mr. Guy-Smith, I think it is a bit

 9     far-fetched to be dealing with his father.  If you talk about --

10             MR. GUY-SMITH:  Very well, I'm not going to -- [Overlapping

11     speakers] ...

12             JUDGE MOLOTO:  I think it is irrelevant.

13             The objection will be upheld.

14             MR. GUY-SMITH:  I apologise for the interruption.

15             JUDGE MOLOTO:  That's fine.

16             THE WITNESS:  No problem.

17             MR. GUY-SMITH:

18        Q.   When you were asked to become involved with the government, I

19     take it that it would be would be fair to say that part of the reason

20     that you were asked to become involved was predicated upon the shared

21     history of your father and President Izetbegovic; correct?

22        A.   I believe that's accurate.  Although, again, I think,

23     President Izetbegovic would have better answered that question.

24        Q.   Well, that may well be the case, but I don't believe that he is

25     in a position to do so.

Page 7551

 1        A.   Right.

 2        Q.   And I'm sure --

 3        A.   But I think -- I think your assessment is probably fair.

 4        Q.   Okay.  And in that regard, and now I'm moving forward but a bit,

 5     would it be fair to say that one of the principles that was historically

 6     espoused by Mr. Izetbegovic dealt with the importance of the Islamic

 7     struggle?  Again, I think you know what I'm referring to, because

 8     obviously the Islamic declaration for which he was jailed.

 9        A.   Right.  I think -- I think, first of all, it would be inaccurate

10     to term it the "Islamic struggle."  I think it is more about the Islamic

11     identity, and obviously a Europe that is in many ways very different than

12     other Islamic countries or different from Islamic countries.  And in a

13     situation where Bosniaks or Bosnian Muslims obviously had both a very

14     much European identity, if you would.  One based upon Euro-Atlantic

15     cultural and political values and, also at the same time had an Islamic

16     identity.

17             I think the notion of some sort of struggle, political struggle,

18     struggle of -- I'm not sure what that term is meant to imply.  And I

19     would just ad here that in hindsight it is very easy to see that in my

20     engagement I probably saw the survival of that Islamic identity in Bosnia

21     very much consistent with the American model of a multicultural society.

22     And I think many of us had hoped that the former Yugoslavia would have

23     achieved those types of results as well.  In hindsight it probably failed

24     on that point, or at least to some extent it failed.  And I think the

25     United States still continues by and large to uphold its multi-ethnic

Page 7552

 1     identity.  And as do other societies, but, of course, my greatest

 2     experience is with the United States.

 3        Q.   Okay.  What you did share with President Izetbegovic, and this is

 4     a question that I'm asking, was your distaste for the communist regime

 5     under Tito.  Now, you, of course, would have been a child, but that is

 6     something, I take it, that was taught to you?

 7        A.   Again, it's word distaste requires a certain definition here.

 8     Yes, we were refugees; in fact, political refugees from the former

 9     Yugoslavia.  And as you have noted, my parents both were jailed by that

10     regime.  But at the same time we continued to have friends from not only

11     the former Yugoslavia but even friends from that regime who were in

12     positions of authority, including the former Yugoslav ambassador to

13     Washington.

14        Q.   Okay.  With regard to the question that I had asked you before, I

15     was relying on, I believe, its language from the Islamic declaration,

16     which was a document that was penned by Mr. Izetbegovic, I believe, in

17     the 1970s; correct?

18        A.   Yes, I believe so.

19        Q.   And I was relying on the following.  And so you know what I was

20     thinking at the time.  And perhaps you agree and perhaps you don't, which

21     is --

22             MS. BOLTON:  I'm sorry.  Does my friend have a copy of the

23     document for us?

24             MR. GUY-SMITH:  It is but one quote.  I don't have the document,

25     no.

Page 7553

 1             MS. BOLTON:  I'm not sure how I can follow along and be satisfied

 2     that the text is being quoted accurately if there's not a copy available.

 3             MR. GUY-SMITH:  I'll get you a copy.

 4             MS. BOLTON:  Thank you.

 5             MR. GUY-SMITH:  Which is:

 6             "In the struggles for the Islamic order, all means are

 7     permissible except one: crime.  No one has the right to defile the good

 8     name of Islam by the uncontrolled and superfluous use of force.

 9             Is that something you're familiar with having been said by

10     President Izetbegovic?

11        A.   I must say to you I never read the Islamic declaration as a

12     whole.  I didn't even -- frankly, wasn't particularly concerned of its

13     existence or wary of its existence until it was raised in -- in political

14     discussions.  I am aware of some of these direct cites, and I have even

15     questioned President Izetbegovic on some of these issues.

16        Q.   Okay.  With regard -- with regard to your questioning of

17     President Izetbegovic on some of these issues, did you ever discuss with

18     him the following view?  That:

19             "The Islamic order can only be established in countries where

20     Muslims represent the majority of the population.  If this is not the

21     case, the Islamic order is reduced to mere power as the other element in

22     Islamic society is missing and may turn to violence.  The non-Muslim

23     minorities within an Islamic state, on condition that they are loyal,

24     enjoy religious freedom, and all protection."

25        A.   Whenever I discussed this matter with President Izetbegovic, and

Page 7554

 1     certainly was not more than two, three occasions during obviously a

 2     vision of what Bosnia would like, he made it very clear to me, and, of

 3     course, we can all then question whether he was sincere or not, I believe

 4     he was sincere, that in fact he was looking to have Bosnia take on the

 5     character of a secular state, not an Islamic state, not a state dominated

 6     by any one ethnic or religious group, not dominated by any theology or

 7     ideology beyond that consistent with its European neighbours.

 8        Q.   Did you discuss with President Izetbegovic any concerns that

 9     might be raised about some of the historical positions that he had taken

10     with regard to Islam in the modern world, even in light of what you just

11     said about your -- your perception of his view?

12        A.   Clearly, if you're raising the issue now, the issue was raised

13     before on numerous occasions what in fact did President Izetbegovic stand

14     for.  And from my perspective it was very important that he stood for a

15     multi-ethnic secular society not dominated either, on the one hand, by

16     theology, or, for that matter, on the other hand dominated by some sort

17     of atheist ideology.  Clearly to me again, America served as the most

18     appropriate model.  And with all due respect to the others who are

19     represented this Court, I believe there other modern societies, although

20     not perfect, who would fit that model as well, of that is a progressive,

21     multi-ethnic secular state.

22        Q.   Okay.  I understand what you're saying here, and my question and

23     the thrust of my question is slightly different.

24             Recognizing the existence of this discussion, which is the

25     discussion concerning whether or not Bosnia and Herzegovina was going to

Page 7555

 1     be a Muslim state or a multi-ethnic state, with regard to the issue of

 2     the perception of the outside world.  Is that a matter that you

 3     discussed, first of all, with President Izetbegovic, as to how you were

 4     going to --

 5        A.   Yes, it is.

 6        Q.   Okay.  Thank you.

 7             And with regard to how that -- the perception of the outside

 8     world was going to be dealt with, in terms of this issue, which is, I

 9     believe, somewhat of a sensitive issue, and somewhat of an important

10     issue in terms of the, not only the conflict, but the history of the

11     creation of a state, did you formulate a plan as to how to deal with the

12     potential negative perception?

13        A.   Well, first of all, I think the substance is as important as the

14     perception.  And I must say that, yes, there were times when I raised

15     issues not only of perception but substance.  I was very much influenced

16     by what I call Bosnia and Herzegovinian patriots who were not Muslims and

17     how much they had committed to the struggle from politics to the

18     battlefield.  For example, General Jovan Divjak, who was a Serb, was one

19     of the main defenders and was one of the chief military commanders of

20     Bosnia and Herzegovina.  I always felt that his contributions were not

21     only significant, but in fact they were indicative of what a new Bosnia

22     and Herzegovina could look like and should look like.  It was also,

23     frankly, my view that people like General Jovan Divjak who, as I

24     understand it, have testified before the Tribunal in the past, was

25     someone who had a choice.  He could give in to what I would call ethnic

Page 7556

 1     impulses, and decide that in fact he was going become part of some sort

 2     of nationalist Serbian agenda, or in fact he could continue to support

 3     what I believe was the future of Bosnia and Herzegovina, and that is as a

 4     progressive pluralistic democratic state.  I think if you want to ask me

 5     what were President Izetbegovic's shortcomings in this way, it is very

 6     simple.  He was someone who had lived all of his life in the former

 7     Yugoslavia.  So unlike myself, or for that matter my family, he never had

 8     the opportunity to experience what it meant to live in a progressive,

 9     democratic, as well as pluralistic society.  Although I think Yugoslavia

10     certainly deserves credit for being a multi-ethic society, clearly was

11     not democratic, and I think we can question to what extent it was

12     progressive.

13        Q.   Okay.  I thank you for -- for your answer.  And I understand that

14     you have mentioned one individual who you found great comfort, and I

15     don't use the word lightly, in terms of being a forward thinker.  But my

16     question was, did you devise a programme -- I supposed you dealt with the

17     substance, but you haven't dealt with the issue.  Did you devise a

18     programme whereby the perception of an Islamic state being created was to

19     be -- I'm going use the word defeated here or to be explained away, other

20     than just by saying it was being to be multi-ethnic?

21        A.   I think again, you're trying to maybe find a distinction between

22     the substance versus the presentation, and I certainly did not see that

23     there should be any distinction before that.  To the extent that one had

24     to answer accusations, maybe that would be a response to that, but I

25     believe the substance was as or more important than the presentation.

Page 7557

 1        Q.   Okay.  We will come -- we will come back to this issue in terms

 2     of some of the allies that you found yourself with as the years

 3     progressed, okay?

 4             JUDGE MOLOTO:  Let me --

 5             THE WITNESS:  I understand.

 6             JUDGE MOLOTO:  Let me understand the question.  I know it has

 7     been answered, Mr. Guy-Smith, but just for my own understanding.  In that

 8     previous question, you were asking for plans for an Islamic state being

 9     created and in the same breath characterizing that state as multi-ethnic.

10     On the face of it, those two terms sound contradictory.  Was that in fact

11     Izetbegovic's characterization?  He called it an Islam state?

12             MR. GUY-SMITH:  I'm sorry, if you -- and perhaps my question is

13     -- is too wordy.  The substance of my question is, did they devise a

14     programme to defeat the perception, to change the perception of the

15     outside world that they were creating an Islamic state?

16             JUDGE MOLOTO:  I'm with you.

17             MR. GUY-SMITH:  Okay?

18        Q.   I want to go back now in -- in time to when you first began your

19     work.  Could you tell us when that was?  And by your work, I'm talking

20     about your work as an ambassador.

21        A.   Officially I was appointed by President Izetbegovic on May 22nd,

22     1992, which was on the day that Bosnia and Herzegovina was admitted to

23     the United Nations.  I probably was more consistently active for a month

24     or two or three before then, depending, of course, on the situation.

25     When Sarajevo became besieged in early April, clearly the work

Page 7558

 1     intensified.  I worked closely with Dr. Haris Silajdzic who was a foreign

 2     minister of Bosnia and Herzegovina at the time.  And I presented my

 3     credentials a couple of weeks, maybe ten days after, actually, Bosnia was

 4     admitted to the Secretary-General formally.

 5        Q.   Thank you.  And when you first began working as the

 6     representative, the work that you did was out of your law office;

 7     correct?

 8        A.   It was actually out of my business office which was on

 9     6th avenue.

10        Q.   And you stayed in your business office for, if I'm not mistaken,

11     a period of approximately four months; right?

12        A.   Yeah, give or take a couple of months.

13        Q.   Okay.  Now, during the period of time that you were there at --

14     at your first office, you had some difficulties, as I understand it,

15     setting up an account because you did not have a tax ID number; correct?

16        A.   That is correct.

17        Q.   Okay.  And that would have been an account for the Bosnian

18     government; right?

19        A.   It would have been an account for the mission of Bosnia and

20     Herzegovina.  Because I was a US citizen and I did not wish to relinquish

21     my US citizenship, I, frankly, saw my work on behalf of Bosnia as being

22     temporary and that I would return to my American life.  I in fact was in

23     an unusual capacity of having dual citizenship but within the

24     United States, even though it was before the United Nations representing,

25     obviously, a different country, that is -- the Republic of Bosnia and

Page 7559

 1     Herzegovina.

 2             MS. BOLTON:  Sorry to interrupt.

 3             MR. GUY-SMITH:  I was going say that my colleague -- I was going

 4     to say that I see that Ms. Bolton has risen, so ...

 5             JUDGE MOLOTO:  You rose a bit late.  In the middle of the answer,

 6     I couldn't stop.

 7             MS. BOLTON:  No, I understand.

 8             And I just wish to indicate that I think if this line of

 9     questioning is going to continue at all, we should probably go into

10     closed session because the relevance of it would relate only, I think, to

11     the allegations that are currently out of Bosnia and Herzegovina, unless

12     there is some other relevance my friend is suggesting that I'm not aware

13     of.

14             MR. GUY-SMITH:  Well, as a matter of fact, there is some other

15     relevance that I think exists with regard to this particular issue.

16             Would you like me I explain?

17             JUDGE MOLOTO:  I don't know whether your colleague would like you

18     to.

19             MR. GUY-SMITH:  Whether or not she would like me to -- well --

20     fine.

21             JUDGE MOLOTO:  I'm prepared to take your word for it.  I don't

22     know whether she wants to know the relevance so that she follow you.

23             MS. BOLTON:  I have idea what the relevance would be other than

24     what I have already stated.

25             MR. GUY-SMITH:  Well, I'm unclear as to what Ms. Bolton's concern

Page 7560

 1     is, to be perfectly honest with you.

 2             MS. BOLTON:  Well, my concern is that if my friend is saying

 3     there is some other relevance to it, then I say it is not relevant.  If

 4     my friend is saying that it is relevant to the allegations, then I'm

 5     asking him to go into closed session.  But I can't tell the Court which

 6     my position is until I know what my friend is saying in terms of what the

 7     relevance is.

 8             MR. GUY-SMITH:  I'm sorry, my --

 9             JUDGE MOLOTO:  [Overlapping speakers] ... you might have explain.

10             MR. GUY-SMITH:  Sure.  My confusion is this somewhat ambiguous

11     term that's being used, which is the allegations.  I'm not particularly

12     clear about what Ms. Bolton concern is as of yet.

13             JUDGE MOLOTO:  Maybe if you just articulate the standpoint from

14     which you regard them as relevant, she will know and then can decide

15     whether or not she wants to go in private session or to stay in open

16     session.

17             MR. GUY-SMITH:  Okay.  Sure.

18             The issue for the moment is but an issue of record-keeping.

19     That's all it is for the moment.  At a certain point in time it may

20     change, at which point, then, I think she probably would be right, and --

21     well, I'm not sure -- excuse me, you know what?  As a matter of fact, I

22     don't believe it is appropriate to go into closed session in any event.

23     Mr. Sacirbey -- excuse me, I apologise, Mr. Sacirbey has an attorney

24     present.  And if the attorney is concerned --

25             THE WITNESS:  Thank you.

Page 7561

 1             MR. GUY-SMITH:  -- with regard to any issues that make expose

 2     Mr. Sacirbey to criminal liability, then the attorney who is present can

 3     raise those issues.  As I understand Ms. Bolton's position, Madam Bolton

 4     is now acting as an attorney for Mr. Sacirbey.  And if that is the case,

 5     that is inappropriate.  This is something that we visited once before.

 6     But irrespective of the issue of the relevance of the question, whether

 7     or not this is an appropriate utilisation of going into closed session is

 8     an entirely different issue.  What is the interest here that is being

 9     protected by the Prosecution?  If what we are looking for, assuming the

10     worst of all possible worlds for Mr. Sacirbey, and I don't believe we're

11     at that stage right now, but assuming that that is the case, then this is

12     the kind of information, this is the kind of truth that should be not

13     only presented to the Chamber but presented to the world, if that's an

14     issue.

15             JUDGE MOLOTO:  Yes, Madam Bolton.

16             MS. BOLTON:  Yes, Your Honour, I'm actually referring to the

17     issue that was the subject of the Prosecution's motion with respect to

18     limits on cross-examination.  And at paragraph 21 of the Court's ruling,

19     it actually indicates that we had raised a number of concerns about

20     public discussion of these allegations because of the fact that

21     Mr. Sacirbey would have certain rights, right to remain silent, for

22     example, if he were asked some of these questions in Bosnia and

23     Herzegovina.  And the protection that the Court noted in its judgment,

24     one of the protections was that Sacirbey and the Prosecution are free to

25     request private or closed sessions when the circumstances so require.  So

Page 7562

 1     in answer to my friend' suggestion that it is not appropriate for the

 2     Prosecution to ask to go into closed session, I'm doing so because

 3     Your Honours' ruling specifically indicated that it would be appropriate.

 4     And this is, as far as can I tell, again, an issue where the only

 5     relevance of his record-keeping is with respect to the allegations that

 6     have been made by Bosnia and Herzegovina.  And again my concern is, as I

 7     articulated in the original motion, that the subject not be discussed in

 8     a context where the authorities in Bosnia and Herzegovina would have the

 9     advantage of obtaining information as a result of these proceedings that

10     they wouldn't have a right to otherwise.

11                           [Trial Chamber confers]

12             MR. GUY-SMITH:  If I might say something briefly, or should I

13     wait for -- I think I should probably wait for you.

14             JUDGE MOLOTO:  I'm going to have the last world.

15             MR. GUY-SMITH:  I'm clear about that.  I'm absolutely clear about

16     that.  I in no way whatsoever wish to -- you would assume for any

17     purposes whatsoever that --

18             JUDGE MOLOTO:  Sorry, you go ahead.

19             MR. GUY-SMITH:  My concern really does remain the same, which is

20     that the Prosecution, at this time, is taking the place instead of the

21     able gentleman who is sitting in the room in New York with Mr. Sacirbey

22     as his attorney.  And I'm sure that if he has any concerns, he will raise

23     them.

24             JUDGE MOLOTO:  On that one, I would, under normal circumstances,

25     I would agree with you 100 percent.  But if we have a decision that

Page 7563

 1     authorised both the attorney sitting there and the Prosecution to asked

 2     for closed session, then we are bound by that.

 3             MR. GUY-SMITH:  I appreciate that, and I know that you're going

 4     to have the last word.  Reading that decision, it says when the

 5     circumstances require.  The best individual who make such a determination

 6     is Mr. Sacirbey's lawyer because is he there for purposes of protecting

 7     the interests of his client against the -- against -- because he has a

 8     privilege against self-incrimination.  It is not the Prosecution.  The

 9     Prosecution is running interference in seeking to keep the truth from the

10     public by doing it in this fashion.  If Mr. Sacirbey did not have an

11     attorney and the Prosecution chose to stand in such shoes, then I might

12     take a different position and have a different view of it.  But

13     concerning that he has an attorney there, I respectfully suggest that

14     when the attorney wishes to make such an objection, the attorney will do

15     so.

16             JUDGE MOLOTO:  Are you -- that is tantamount to ask for

17     reconsideration of that decision, Mr. Guy-Smith, which we cannot do at

18     that point in time.

19             MR. GUY-SMITH:  Okay.  Well, my objection obviously is noted for

20     the record, then, and I understand the Court's ruling.

21             I think it is an appropriate time.

22             JUDGE MOLOTO:  It is appropriate.  Just for the sake of the

23     record, then the objection -- let the record show that the objection is

24     upheld on that basis.

25             That would be an appropriate time to take a break and come back

Page 7564

 1     at 4.00.

 2             Court adjourned.

 3                           --- Recess taken at 3.32 p.m.

 4                           --- On resuming at 4.04 p.m.

 5             JUDGE MOLOTO:  Yes, Mr. Guy-Smith.

 6             MR. GUY-SMITH:  Yes, what I'd like to do is I'd like to ask my

 7     next question.  And then before Mr. Sacirbey answers that question, we

 8     can make a determination of whether or not we need to go into private or

 9     closed session, and then we'll take it from there.

10             JUDGE MOLOTO:  Thank you, Mr. Guy-Smith.

11             MR. GUY-SMITH:

12        Q.   You had mentioned that the account to be opened was an account

13     for the Bosnian -- for the mission of Bosnia and Herzegovina, and as I

14     understood your answer, but because you were a United States citizen,

15     there were some difficulties in opening such an account.

16             Is that correct, will be my question.  And before you answer that

17     question, I will see whether or not either your counsel or the

18     Prosecution believes that question should be a question that should be

19     attended to in closed session.

20             MS. BOLTON:  As far as I'm concerned, this line of questioning

21     only has relevance to the allegations arising out of Bosnia and

22     Herzegovina, so, in my respectful submission unless there is some other

23     relevance that my friend wants to explain, I would ask for a closed

24     session.

25             MR. GUY-SMITH:  Well, I tend to disagree with Ms. Bolton.  But

Page 7565

 1     for purposes of ease, because I'm not going telegraph all of that, which

 2     I'm thinking, we can go into closed session -- or private session, I

 3     apologise.  Private or closed?

 4             JUDGE MOLOTO:  May the Chamber move into a -- do you want private

 5     or closed session?

 6             MS. BOLTON:  The ruling says either, at your discretion,

 7     Your Honour.  So I'm in your hands.  I would ask for closed but ...

 8             MR. GUY-SMITH:  Closed means we drop the drapes.

 9             JUDGE MOLOTO:  The difference between the two has just been

10     explained to me, so private session will do.

11             MS. BOLTON:  Thank you.  Private.

12             MR. GUIRGUIS:  I'm sorry, Your Honour, this is Peter Guirguis.

13     Just so I might understand, what is the difference?

14             JUDGE MOLOTO:  The difference is that closed session, even the

15     identity of the witness -- the witness would not be seen by the public.

16     What -- in private session, everybody can see him, but they don't hear

17     what we say, all of us.

18             MR. GUIRGUIS:  Thank you, Your Honour.

19             JUDGE MOLOTO:  You're welcome.

20                           [Private session]

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 7566











11 Pages 7566-7572 redacted. Private session.















Page 7573

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9                           [Open session]

10             THE REGISTRAR:  We're back in open session, Your Honours.

11             JUDGE MOLOTO:  Thank you very much.

12             Yes, Mr. Guy-Smith.

13             MR. GUY-SMITH:  Thank you.

14        Q.   Now I want to turn for a moment to some issues with regard to

15     your contact with the Office of the Prosecutor in two instances

16     initially, and then we will expand from -- from there.

17             Before testifying in the instant case, you met with members of

18     the Prosecution team, did you not?

19        A.   Yes, I did.

20        Q.   And do you recall when you met with them?

21        A.   With respect to the case which you are standing on,

22     Mr. Guy-Smith?

23        Q.   That's correct, Mr. Sacirbey.

24        A.   I met actually on two separate occasions.  And I'm going to only

25     give you general basis as best as I can, and they happen to be -- I think

Page 7574

 1     in both -- once in 2008 it was for approximately a week, actually, a work

 2     week, and I think that was at the end of April, beginning of May of 2008.

 3     And also with respect to this year, it was about the same time.

 4        Q.   And when you say -- when you said that you met for a work week,

 5     do I take it to mean that you met with the Prosecution for five days?  Is

 6     that fair?

 7        A.   I think the last time it was three or four days, and it was more

 8     or less for the workday; that is, let's say, 9.00 to 5.00, generally.

 9        Q.   Okay.  And the time before that when you met with him in 2008,

10     was that for a full work week?

11        A.   I think that was also for four days, if I'm not mistaken.  We

12     envisaged maybe Friday, but that day, apparently, was a necessary --

13     again, if I remember correctly.

14        Q.   And as you sit here today, at the time that you met with them in

15     2009 and 2008, were those conversations tape-recorded?

16        A.   I believe they were, at least on one occasion that I recall.

17        Q.   Okay.  And who was present during those tape recordings, if you

18     recall?

19        A.   In the first instance it was Mark Harmon, who should be in the

20     court with you, and hello, Mr. Harmon.  And Mr. Brett Randall.

21             In the second instance it was -- again, Mr. Brett Randall, who

22     obviously is not immediately there at the ICTY, and Ms. Lorna Bolton, of

23     course, who is also there.

24        Q.   Do I understand that when you are talking about the first

25     instance and the second instance, you met with Mr. Harmon and Mr. Randall

Page 7575

 1     in 2008.  And you met with Ms. Bolton and Mr. Randall --

 2        A.   That's correct.

 3        Q.   And in which of those sessions were you tape-recorded?

 4        A.   I remember certainly in 2008.

 5        Q.   I see.  And did you have an opportunity to review that

 6     tape-recording prior to coming to testify here today?

 7        A.   No, I did not.  I -- I might have reviewed a summary of what we

 8     discussed, but I did not in fact review a verbatim recording.  That's why

 9     I'm a little bit uncertain about exactly what might have been recorded.

10     I know there was a tape there, I'm not always sure it was always on.  I

11     certainly was comfortable with it being on or off.

12        Q.   I understand.  With regard to meetings that you have had with the

13     Office of the Prosecutor, this is not the first time, however, that you

14     met with the Office of the Prosecutor in relation to a pending case here

15     at the ICTY, is it?

16        A.   No, it's not.  I've certainly had, if you want to call, phone

17     conversations.  I've had those types of discussions, and, of course, I

18     have had person-to-person meetings.  And I believe you referred to one of

19     those, which was Sir Geoffrey Nice.

20        Q.   That's correct.

21        A.   And the prosecution of Slobodan Milosevic.

22        Q.   And during your conversation with Sir Geoffrey Nice, could you

23     tell us what year that occurred in.

24        A.   Yes, that was September 2004, but I also met -- or I shouldn't

25     say met.  We had discussions over the phone at least two extensive

Page 7576

 1     discussions, two -- either late 2002 and certainly 2003, early 2003.

 2        Q.   With regard to the face-to-face meeting that had you with

 3     Mr. Nice, also present during those meetings was Mr. Randall; correct?

 4        A.   In the -- in the face-to-face meeting, yes, Mr. Randall was

 5     there.  I should also emphasize just to be complete.  I have had numerous

 6     meetings with the ICTY office, particularly the Prosecutor's office

 7     during my diplomatic tenure.

 8        Q.   Yes, I understand that.  We'll get to that particular subject.  I

 9     want to deal only with, for the moment, the issue of your meetings with

10     the Office of the Prosecutor in relation to your being a witness, which

11     as I understand it, has occurred in two separate discrete time-periods.

12     One dealing with the Milosevic matter, in which there was an expectation

13     that you might be called as witness.  Correct?

14        A.   That's correct.

15        Q.   And the other being in the Perisic matter; correct?

16        A.   That is correct.

17        Q.   With regard to the Milosevic -- with regard to the Milosevic

18     matter, those interviews were all tape-recorded; correct?

19        A.   I believe so.  That's just a --

20        Q.   That just a --

21        A.   That's been awhile, and I just frankly -- please continue.  I'm

22     having --

23        Q.   Sure, I understand.

24             With regard to those particular matters, but that I'm referring

25     to the tape-recorded meetings you had with Sir Geoffrey Nice, have you

Page 7577

 1     had an opportunity to review or listen to those tapes?

 2        A.   I don't believe I have ever had an opportunity to listen to any

 3     tapes.  And I do not believe that I reviewed any transcript of those.

 4        Q.   Okay.  And, I take it, the same is true, and I think you may have

 5     already answered this question, but just to wrap up this particular

 6     issue, that of taping and transcripts, that, with regard to the meeting

 7     that had you with Mr. Harmon in which you were tape-recorded, you have

 8     not had an opportunity to either listen to the tape or review that

 9     transcript either; correct?

10        A.   I'm quite sure I didn't have a chance to listen to any tape.  I

11     don't believe I have had a chance to review certainly the transcript in

12     full, if there was one.  I have had a chance certainly to review elements

13     of my statement.

14        Q.   Okay.  With regard to, once again, Mr. Randall's involvement in

15     your particular life as it related to the Milosevic case, you exchanged a

16     series of e-mails with Mr. Randall concerning your potential testimony;

17     correct?

18        A.   Maybe I don't recall the e-mails, but I certainly think that's

19     accurate.

20        Q.   When you say you don't recall the e-mails, is what you're telling

21     us as you sit here today, you don't have a memory of the subject matter

22     or the substance of the e-mails themselves?

23        A.   Nor the particular date.  But, yes, we certainly did continue a

24     discussion about my potential role as a witness in that case.  And I was

25     in fact informed that I would be at some point in time put on the list of

Page 7578

 1     witnesses, at least rebuttal.

 2        Q.   With regard to -- I'm sorry, you said at least rebuttal?

 3        A.   Well, if -- if you will note, again, I was held in custody for

 4     year and a half while the Prosecution presented its case.  Once Sir

 5     Geoffrey Nice and Brett Randall had an opportunity to speak to me, in

 6     fact the Prosecution case had in fact already been completed.  So, the

 7     only way I think I would have been brought up would have been on

 8     rebuttal, if I'm not mistaken.

 9        Q.   Okay.  With regard to the issue of you being held in custody for

10     a year and a half, could you just give us the dates that you were held in

11     custody without any further discussion about it?

12        A.   Yes.  March 23rd -- I'm sorry, 2003, to, I believe it was

13     July 27th, 2004.

14        Q.   Okay.  With regard to your last answer concerning rebuttal, you

15     indicated, So the only way I think I would have been brought up would

16     have been on rebuttal, if I'm not mistaken.

17             Do you recall as you sit here today having a discussion with

18     Mr. Nice concerning the nature and scope of your testimony and planning

19     for those issues that you would present on rebuttal?

20        A.   That's a pretty broad question.  I think what I would just say is

21     that the word -- that it was clear from our discussions that there would

22     be a rebuttal stage that would be forthcoming, that in fact the direct

23     stage was already either completed or to be soon completed.  Again, I'm

24     speaking of September 2004, toward the end.  I'm sure you can check from

25     the record that when direct was completed -- and I just can't recall what

Page 7579

 1     all the impediments were for my direct testimony and what all the

 2     opportunities were for my rebuttal.

 3        Q.   Did you in your conversation with Mr. Nice have a discussion

 4     about specifically what evidence would be sought from you prior to you

 5     giving Mr. Nice any information about the facts?

 6        A.   I -- no, I think -- I think you're suggesting that Mr. Nice

 7     approached me with a request of what evidence I should or maybe could

 8     provide, and I think it was a rather very broad discussion of issues that

 9     I think certainly could be seen in many different lights, in terms of my

10     role as a witness.

11        Q.   Okay.

12        A.   So I -- discussion took place over three very long days.

13        Q.   I understand that.  With regard to your last answer, I'm going to

14     read to you from a transcript that was provided to the Defence and see

15     whether you can confirm or deny the following statement being made by

16     Mr. Nice to you concerning the issue that we are now talking about.

17             MR. GUY-SMITH:  Page 2.

18             THE WITNESS:  Please.

19             MS. BOLTON:  Sorry, could I just beg my friend's indulgence for a

20     moment while I find the transcript and the page number before he goes

21     ahead.

22             MR. GUY-SMITH:  Sure.  There also is an issue that I wish to take

23     up at our next break very briefly.

24             MS. BOLTON:  Can my friend assist me with a tab number in the

25     binder as provided.

Page 7580

 1             MR. GUY-SMITH:  Yes, that would be tab number 65.  And that would

 2     be 1D03-1310.  I'm sorry.  Excuse me.  1325.  Let me do that again,

 3     1D03-1325.

 4             MS. BOLTON:  Thank you.

 5             JUDGE MOLOTO:  Thank you.

 6             MR. GUY-SMITH:  And for the benefit, and I think we're going to

 7     be in one of the situations where I think we're going -- we'll put it up

 8     on the screen, so you can read along with this, and also so the Chamber

 9     has an opportunity.

10        Q.   Although I believe you probably have it in hard copy there with

11     you.  Tab 65?

12        A.   I probably do.  Okay.  And you'll direct me to the specific --

13        Q.   Surely.  Page 2 of 62 pages, and I'm commencing at line 30.

14             "So we have these two particular reasons which are," and then a

15     word that is not discernible.  "And then, of course, the death of

16     Izetbegovic" --

17             JUDGE MOLOTO:  Excuse me, Mr. Guy-Smith.  I thought you offered

18     to put it on the ELMO.

19             MR. GUY-SMITH:  I thought it was.  I do apologise, Your Honour.

20             JUDGE MOLOTO:  I'm on the ELMO, and I see the parties in

21     New York.

22             MR. GUY-SMITH:  Oh well.  Try -- is perhaps one of those -- I

23     don't which one of the buttons it is ...

24             JUDGE MOLOTO:  Okay.

25             MR. GUY-SMITH:  I get confused all the time with the buttons.

Page 7581

 1             JUDGE MOLOTO:  Well, the ELMO is that little thing there.

 2             MR. GUY-SMITH:  E-court.  E-court.

 3             JUDGE MOLOTO:  Thank you.  Okay.  You may now proceed with --

 4             MR. GUY-SMITH:  Thank you.

 5        Q.   "And then, of course, the death of Izetbegovic would -- had a

 6     clear effect on the general dynamics of whatever the ICTY was doing, and

 7     no one else was seeing or seen to be a candidate.  But probably a case

 8     involving is a segment of the case is perceived quite satisfactorily, and

 9     by one route or another or one reason or another, we've ... certainly" --

10     Excuse me.  I didn't do that properly.

11             "We've got certainly an adequate case to further us beyond the

12     end of the Prosecution's case.  But that doesn't mean to say there aren't

13     a number of important questions that we would like answered.  And it

14     certainly doesn't mean that we've got the best evidence that may

15     conceivably exist, obviously given the particular case we're prosecuting

16     as opposed to any other."

17             I'd like to focus you on the next part:

18             "Our prime interest is in what evidence exists against this

19     particular accused to link him to the crimes that were undoubtedly

20     committed in Bosnia against the Bosnian Muslims.  And, as part of that,

21     our main evidential interest is in what material we may get unearthed

22     beyond what we already have to show the active participation of the VJ in

23     events that became criminal as against Bosnian Muslims."

24        A.   Yes, Mr. Guy-Smith, was there a question?

25        Q.   Yes, there is.  I just wanted to make sure that the interpreter

Page 7582

 1     had a chance to finish interrupting.

 2             With regard to the discussion that you had with Mr. Nice, it

 3     would be fair to say, would it not, that that is a quite focussed

 4     discussion, as opposed to the general discussion that you had suggested

 5     moments ago, that Mr. Nice in fact was looking for very specific

 6     information to come from you?

 7        A.   That very well may be a reading of what have just looked at.  But

 8     frankly, I'm of the view that that was the very broad discussion relating

 9     to many facts.  And I think if you read these many files, I think you

10     will find that many issues are discussed, even beyond Mr. Milosevic's own

11     culpability.

12        Q.   Oh, indeed so, and we will be discussing that, sir.

13             But for the moment I'm focussing on this particular matter where

14     and Mr. Nice discussed producing a very specific type of evidence, and by

15     that mean, what material we may get unearthed beyond what we already have

16     to show the active participation of the VJ in events that became criminal

17     as against Bosnian Muslims.

18             That, you would agree with me, is a very specific subject, is it

19     not, sir?

20        A.   But are you suggesting that I'm some sort of initiator of this

21     endeavour?  I obviously may be a witness or even an interested party.

22     But I'm not sure I would be --

23        Q.   No, quite the contrary.  I'm not suggesting that you you're the

24     initiator at all.

25        A.   Okay.

Page 7583

 1        Q.   I'm suggesting that Mr. Nice was the initiator.

 2        A.   Okay.  Well, that may or may not be.  But I think you're asking

 3     me characterize his statements here in a way that maybe I didn't quite

 4     see it the same way.  Although, clearly, I would have been -- I don't

 5     think the word is necessarily sympathetic, but I certainly would have

 6     been someone who had been paying attention to the types of evidence that

 7     could in fact provide the result that's discussed here.

 8        Q.   That I appreciate, but that is it not the thrust of my question

 9     at this time.  The thrust of my question at this time is really --

10        A.   Okay.

11        Q.    -- much more discrete.  With regard to the other issue, as

12     you've raised, we will have that discussion a bit later.

13             If we could, moving to the next page, there's a continued

14     discussion between -- well, actually, what it is, is a statement by

15     Mr. Nice to you about what the Prosecution is interested in obtaining

16     from your participation in this case.

17             And I'm referring you now to page 4, line 11.

18              "Bearing in mind" --

19             JUDGE MOLOTO:  Sorry, in this case on the monitor?

20             MR. GUY-SMITH:  Yes.

21        Q.   And starting at line 11, through line 33, there's a discussion,

22     is there not, with regard to a series of conceptual issues, as they

23     related to the facts in the Milosevic case, that Mr. Nice shares with

24     you, for your comment.

25        A.   The way I understand this paragraph reading again, again, I don't

Page 7584

 1     remember the firsthand discussion; it's been a while.  But that certainly

 2     sounds consistent with the interview that we had.  As can you see also,

 3     from what I can quickly tell, most of the time I'm either answering with

 4     either with one sentence or one-word answers.  But I believe the

 5     reference here is to, obviously, the massacre in Srebrenica, to what

 6     extent it links the actual perpetrators --

 7        Q.   You're missing my point.

 8        A.   [Overlapping speakers] ...  the perpetrators to Belgrade, and

 9     potentially others that were either --

10        Q.   You're missing my point here.

11             THE INTERPRETER:  Could the speakers please not overlap.

12             MR. GUY-SMITH:

13        Q.   You were once again directed by Mr. Nice towards evidence that he

14     was interested in you speaking to.  And, as you said, you gave

15     monosyllabic answers, for example, on page 4, at line 1: "Right."

16             Now the "right" there is with regard to an understanding of what

17     Mr. Nice wanted from you.  Correct?  You're acknowledging -- [Overlapping

18     speakers] ...

19        A.   [Overlapping speakers] ...

20        Q.   [Overlapping speakers] ...  excuse me, sir.

21        A.   Yeah.

22        Q.   You're acknowledging the -- the statement made by Mr. Nice with

23     regard to the information he requires from you.

24        A.   If you're asking me, did I understand what he was saying to me,

25     the answer is yes, right.  If you're asking me, do I agree with any

Page 7585

 1     particular agenda, I -- I can't say as to what you believe that agenda

 2     may be.

 3        Q.   [Overlapping speakers] ...

 4        A.   [Overlapping speakers] ... I guess that's what I'm really having

 5     trouble with.

 6        Q.   Yeah, you're making an assumption, my friend.  Which --

 7        A.   Okay.

 8        Q.   -- is unfortunate.  If you choose to second-guess the question,

 9     then you will find yourself in a bit of a dilemma.  I'm asking a very

10     simple question with regard to the information that's contained on the

11     page.

12        A.   Sir, if you're asking me if Sir Geoffrey had in fact read out

13     certain views or perspectives of the Prosecution and I was informed of

14     those, then the answer is, of course, yes, right.

15        Q.   Thank you.

16             You also discussed with Mr. Nice various witnesses that the

17     Defence might call; correct?

18        A.   Yes.  Yes, we did.

19        Q.   Okay.  And, as a matter of fact, there came a time --

20             JUDGE MOLOTO:  Madam Bolton.

21             MS. BOLTON:  Sorry, Your Honours.  I'm trying not to object

22     unnecessarily.  But have I been listening to this line of questioning and

23     thinking my friend was going somewhere with it, and I'm just not clear on

24     the relevance of the 2004 interview of Mr. Nice is to the issues before

25     this Tribunal.  And maybe I'm just missing something, but perhaps my

Page 7586

 1     friend could indicate.

 2             JUDGE MOLOTO:  Mr. Guy-Smith.

 3             MR. GUY-SMITH:  The topic matter is discussed by Mr. Nice with

 4     Mr. Sacirbey in 2004, in large measure, covered issues that are being

 5     addressed in this trial.  And I think that, for example, the discussion

 6     that we have just gone through with regard to Mr. Nice's intent to obtain

 7     particular information with regard to the participation of the VJ is, to

 8     put it bluntly, a central issue in this trial, if not the central issue

 9     in this trial.

10             MS. BOLTON:  Sorry, maybe I wasn't clear enough.  I guess what

11     I'm not understanding is what the relevance is of the parts of the

12     transcript that my friend has put to the witness.  You know, I understand

13     what the relevance of any substantive matters he discussed with Mr. Nice,

14     and if there are any inconsistent statements in those matters, those

15     would certainly be relevant.  But unless is he alleging some kind of

16     wrongdoing on the part of Mr. Nice, then this line of questioning doesn't

17     seem to have any relevance, as far as I can tell.

18             MR. GUY-SMITH:  Well, if I might, so terribly briefly, I think

19     that Ms. Bolton is somewhat rushed in her concern.  Whether or not the

20     Defence will be attributing a prosecutorial misconduct at any point in

21     time to the Office of the Prosecutor in general or Mr. Nice in specific

22     is an issue that, if it is to be addressed, will be addressed at a later

23     point in time.  Excuse me.

24             MS. BOLTON:  Sorry, I thought you were finished.

25             MR. GUY-SMITH:  At this point in time, all that is being done is

Page 7587

 1     the facts are being developed with regard to the interview process that

 2     occurred between Mr. Sacirbey and Mr. Nice as it relates to a general

 3     intent and plan of information that the Office of the Prosecutor chose to

 4     obtain from Mr. Sacirbey.

 5             Now, I wish to take it -- and once again, and I do apologise to

 6     Mr. Sacirbey, because his concerns are distinct from the concerns that

 7     exist for this trial.  So if this argument is to proceed any further, I'm

 8     going to ask that it be done outside of his presence.

 9             MS. BOLTON:  My concern, Your Honour, was that --

10             MR. GUY-SMITH:  Excuse me, once again --

11             MS. BOLTON:  [Overlapping speakers] ... Oh, I'm sorry --

12             MR. GUY-SMITH:  [Overlapping speakers] ...  I'm going to ask this

13     matter be continued outside of his presence.

14             MS. BOLTON:  I'm sorry.

15             JUDGE MOLOTO:  Madam Registrar, out there in New York, are you

16     able to mute --

17             THE REGISTRAR: [Via videolink] Yes, Your Honour.

18             JUDGE MOLOTO:  Thank you so much.

19             THE REGISTRAR: [Via videolink] I will do, Your Honour.

20             JUDGE MOLOTO:  Yeah.  Tell us when you have done.

21             THE REGISTRAR: [Via videolink] It's muted now, Your Honour.

22             MR. GUY-SMITH:  Let me try an experiment --

23             JUDGE MOLOTO:  Let me just find out.

24             Are you reducing the volume, or are you muting?

25             Everything has gone dead now.

Page 7588

 1             MR. GUY-SMITH:  Like me try an experiment, like they say in the

 2     Verizon commercial.  Can you hear me now?  Apparently no, so I think

 3     we've got it.

 4             JUDGE MOLOTO:  You made proceed then.

 5             Madam Bolton.

 6             MS. BOLTON:  I'm sorry, Your Honour.  I actually asked Mr. Harmon

 7     to step out of the courtroom to retrieve some case law that we were

 8     actually looking at earlier today which had to do with the extent to

 9     which the Defence can get into areas of preparation of witnesses and

10     prosecutorial misconduct without a formal application.  And I don't want

11     to misstate the case law because it was something I just reviewed today.

12     And I would ask for indulgence for perhaps two minutes while he comes

13     back with the book that I was looking at earlier.

14             MR. GUY-SMITH:  Are we discussing the issue of case law here at

15     the Tribunal or case law generally or ...

16             MS. BOLTON:  At the Tribunal.

17             JUDGE MOLOTO:  Okay, we'll wait.

18                           [Trial Chamber and registrar confer]

19                           [Trial Chamber confers]

20             MS. BOLTON:  Thank you, Your Honours.

21             JUDGE MOLOTO:  Yes, Madam Bolton.

22             MS. BOLTON:  Yes, Your Honour.  I'm looking at Mr. Tarculovski's

23     book, "Jurisprudence of the International Criminal Courts and European

24     Court of Human Rights."  He has -- he is citing actually a decision of

25     the International Criminal Tribunal for Rwanda for the following

Page 7589

 1     proposition:

 2             "A presumption exists that counsel perform their duties in

 3     accordance with the ethical principles that govern the legal

 4     profession" --

 5             THE INTERPRETER:  Speakers are kindly asked to read a little bit

 6     slower.

 7             JUDGE MOLOTO:  You are kindly asked to read slowly.

 8             MS. BOLTON:  That was -- I'll slow down.

 9             JUDE MOLOTO: {Overlapping speakers]...

10             MR. GUY-SMITH:  [Overlapping speakers]... if we might, if we

11     could have the name of the case or the date of the decision, that would

12     be appreciated.

13             MS. BOLTON:  I will cite that at end.

14             "This includes counsel's conduct during preparatory meetings with

15     witnesses.  Unless a party makes a specific allegation of misconduct on

16     the part of counsel, in which case the allegation must be substantiated,

17     questions that generally tend to probe into the details of communication

18     between a lawyer and a witness during pre-testimony preparations would,

19     if allowed by the Chamber, render the presumption negatory.  Accordingly

20     questions relating to pre-testimony meetings between the Prosecutor and

21     witnesses, while permissible, must in the absence of any substantiated

22     allegation of misconduct be limited to the number of such meetings, the

23     dates of the meetings, and their duration."

24             And that is case is Prosecutor versus Bizimungu Augustin et al.

25     It was a decision on a motion pursuant to Rule 73 released -- says,

Page 7590

 1     "raised during the 3rd March 2005 hearing."  And it looks like the

 2     decision date was the 1st of April, 2005.  And the case number was

 3     ICTR-00-56-T.  I think that's the citation for my friend.

 4             Again, simply my concern is that we're going into the substance

 5     of those preparatory meetings which really are relevant if my friend is

 6     making a substantiated allegation and Mr. Nice in focussing

 7     Mr. Sacirbey's attention on certain issues, but before he can go there,

 8     he has to formally make that allegation and Your Honours have to

 9     rule that it is substantiated.  Otherwise, according to at least this

10     decision, there's at least persuasive authority for Your Honours to find

11     that it's not a proper area of examination.

12             MR. GUY-SMITH:  I think -- there are a couple of things that I

13     now find quite noteworthy.  First of all --

14             JUDGE MOLOTO:  [Microphone not activated]

15             MR. GUY-SMITH:  Noteworthy.

16             First of all, it's as Mr. McFarlane said many years ago, Curious

17     strange that the Prosecution would be engaged in research on the issue of

18     its misconduct prior to that issue of having come about.  Having said

19     that, I believe that -- I have only read the case very briefly, the

20     decision very briefly, and I haven't read the underlying briefs in

21     support of the respective positions taken by the parties, that what is

22     probably noteworthy is the holding, which is for the above reasons.  The

23     Chamber grants the motion in the following terms.  The defendants can

24     cross-examine a witness about pre-testimony meeting with the Prosecutor

25     provided, and then there are the limitations.

Page 7591

 1             JUDGE MOLOTO:  And what are the limitations according to your

 2     understanding?

 3             MR. GUY-SMITH:  According to this is the number of preparatory

 4     meetings, the dates of meetings, and duration of meetings.

 5             The difficulty with the holding in this case, is many-folded of

 6     which I will mention but a few.

 7             First of all, it is a clear and absolute denial of the right to

 8     cross-examination under Article 21, and it directly impacts upon the

 9     accused's right to fully ventilate issues before this Chamber in its

10     fact-finding process.

11             Two, I believe that there is perhaps confusion on the part of the

12     Prosecution here.  And I say so for the moment both cautiously and

13     advisedly because I haven't read the underlying briefs in support and in

14     opposition to the motion that the -- may well be mixing up -- the

15     Prosecution may well be mixing up or confusing the invasion into the

16     issue of attorney work product privilege with that of what we're

17     discussing here, which is whether or not the facts, and the facts alone,

18     establish the potential of influence upon -- establish the potential of

19     influence upon any particular witness.  To suggest that the party

20     inquiring into such an area must go so far as to accuse the Prosecution

21     of misconduct misses the point.

22             And the reason for that is very simply as follows.  If, after

23     hearing what occurred during the discussion between Mr. Nice and

24     Mr. Sacirbey, or between the Prosecutor and any witness, as regards to

25     the information that was discussed, the theory of the case that was being

Page 7592

 1     put forth, the Chamber is of the opinion that that those conversations

 2     impact upon the truth-finding process, then it's something that the

 3     Chamber can weigh in its assessment of the evidence that as being given

 4     by that particular witness.  It does not have to be in any sense

 5     whatsoever misconduct.  It does not have to be in any sense whatsoever

 6     done for an ill purpose.  But, indeed, if the Prosecutor's manner of

 7     preparing a witness affects the structural integrity and independence of

 8     that testimony, that is something that the Chamber should take into

 9     account and should be able to take into account.  Otherwise, there's

10     virtually no reason not to have cross-examination with regard to certain

11     issues, at all.  Because have you no idea whether or not the -- the

12     witness was influenced, at all.  Or whether the witness's intent or

13     thinking was influenced at all by virtue of the manner in which the

14     questioning was presented.

15             I have to tell you something, Your Honour, in all of the tapes

16     that I have received, and in all of the verbatim, to the extent that we

17     have received verbatim transcripts over the two cases that have I done

18     prior to this case, I have never seen a Prosecutor engaged in a

19     conceptual discussion with a witness about what testimony would be

20     preferred, what testimony would be expected, what the defendant would be

21     doing, and how best to counter such evidence.  What I have seen is a

22     Prosecutor openly and candidly asking questions about the facts of the

23     case.  Who, what, where, when, how.  But not, not whatsoever, suggesting

24     that certain areas need to be emphasised, that certain concepts need to

25     be sought or obtained, or certain theories need to be proved.

Page 7593

 1             Now if that is in fact what they are doing, shame on them.  If

 2     that's in fact what is going on here, shame on them.  I wouldn't expect

 3     that such a thing would be going on.  However, I found in the evidence

 4     what that was given to me by the Prosecution that is very clear with

 5     regard to the colloquy between Mr. Nice and Mr. Sacirbey that there was a

 6     very specific intent as regards the kinds of evidence that Mr. Nice

 7     sought that could well influence his testimony here and is something

 8     clearly that you should have available to you to consider, independent of

 9     the issue of whether or not it be deemed to be prosecutorial misconduct

10     or not.

11             In the state of human affairs, in the state of dialogue, in the

12     state of conversation as between people, it is a critical component,

13     especially when dealing with circumstantial evidence, which is one of the

14     things you're going to be having to do, to weigh the circumstances, to

15     make determinations about credibility, it's critical that you have an

16     understanding of what transpired as between the parties.

17             That's our respectful submission.

18             JUDGE MOLOTO:  Thank you.  Two questions, or two issues.  First

19     of all, is the Chamber to make from your last rendition that you are

20     indeed challenging the prosecutorial propriety of the Prosecutor who

21     interviewed, Mr. Nice vis-a-vis the Milosevic case -- I beg your pardon,

22     Mr. Sacirbey, that Prosecutor being Mr. Nice?

23             MR. GUY-SMITH:  Well, I hesitate to answer the question

24     immediately without conferring with my colleagues.

25             JUDGE MOLOTO:  Mr. Guy-Smith, when you have said shame on them,

Page 7594

 1     if that's what they are doing --

 2             MR. GUY-SMITH:  Oh, absolutely.  Okay.  I'm sorry.

 3             JUDGE MOLOTO:  [Overlapping speakers]...

 4             MR. GUY-SMITH:  With regard to that issue, if that is what they

 5     are doing, indeed I am.  If that's what they did, if in fact that's what

 6     they did, that they attempted to influence a witness's testimony and told

 7     a witness essentially what they required for their Prosecution --

 8             Mr. Guy-Smith, I'm asking you whether that's what you are

 9     alleging.  I'm not saying that's what they did.  You have said that in

10     your -- in the two cases that have you been involved in before questions

11     are asked of -- in open-end form: what, where, how, when.  My question is

12     are you alleging that the discussion of concepts by Mr. Nice with

13     Mr. Sacirbey was improper on the part of Mr. Nice to do?  And if -- just

14     yes or no, is that what are you alleging?  I just want to be clear that's

15     what you are alleging.

16             MR. GUY-SMITH:  Since you have asked for a yes or no answer, I'm

17     of course forced give you a yes or no answer.  And my answer would be yes

18     with an explanation.

19             JUDGE MOLOTO:  Then the next issue that you raise in your

20     rendition is that in terms of Article 21 of the Statute, the

21     jurisprudence that was referred to by Madam Bolton is an absolute bar to

22     the defence to go into that area of the testimony to test credibility.

23             And I want to say if I -- I haven't read that decision.  If I --

24     and I rely on counsel, what they are telling me.  If what has been told

25     so far is correct, and I have no doubt that it is, then it is not an

Page 7595

 1     absolute bar, because, as Madam Bolton explained, in that event, then you

 2     must make a substantiated application in your preparation to

 3     cross-examine the witness, to say, I'm going to make this application,

 4     and, therefore, I would like to go into that area.

 5             So I do not think that you you're absolutely correct when you say

 6     that it's an absolute bar.

 7             MR. GUY-SMITH:  Limitations on cross-examination are always

 8     dangerous areas for the administration of justice.

 9             JUDGE MOLOTO:  Yes.  And in that there are limitations.

10             MR. GUY-SMITH:  There most certainly are limitations.  And I

11     would readily acknowledge that there are limitations.  Having said that,

12     limitations as they relate to issues that directly concern a fact finders

13     assessment of the accuracy, veracity, credibility of information that

14     they are hearing --

15             JUDGE MOLOTO:  I'm going to interrupt you, Mr. Guy-Smith, because

16     I have just indicated that you don't have an absolute bar.  You have a

17     way to deal with it.  This is not a limitation at that says never, never,

18     never.  You can go around it by just following the jurisprudence.

19             MR. GUY-SMITH:  Well, but with regard to the jurisprudence which

20     is -- which is one of the -- one of the reasons why I initially said that

21     I was not familiar with those briefs that had been filed, I think it is

22     important to note that with regard to the discussion, which is

23     paragraph number 2 of the submissions that were made by the parties in

24     that self-same decision, it says:

25             "The Defence for Bizimungu recalls that during the 3rd March 2005

Page 7596

 1     hearing the Prosecution objected to a question raised by the Defence for

 2     Bizimungu on the basis that the information it sought to elicit was

 3     privileged.  The defence argued that there is no foundation in fact or in

 4     law that an interview between the Prosecution and the -- and a witness is

 5     confidential."

 6             We are in a distinctly factually different situation.  Because in

 7     the context of our case, the information upon which I am examining was

 8     disclosed to me.  Therefore, any privilege that may have existed was most

 9     assuredly waived under this particular analysis.  That is a very -- it's

10     a factually distinct situation from what we have.  There, as I understand

11     it, having briefly, very briefly read the decision, there the Prosecution

12     said, Wait a minute, we've got a privilege here.  Some format of what I

13     would call a work-product privilege, which is an entirely different

14     analytical discussion than a discussion where the Prosecution has given

15     the information to the Defence.

16             JUDGE MOLOTO:  Let me say this.  I confess to having not read

17     this decision.  The portion that was quoted certainly did not refer to

18     privileged information.  It referred to dipping into prosecutorial

19     interviews with witnesses.  And, yes, you may want to go and read the

20     underlying motions and responses, but I guess, for purposes of

21     jurisprudence what does guide us is the decision itself.  And if the

22     decision says you -- you may not try to find out how information was

23     acquired by the Prosecutor from a witness, that is the jurisprudence.

24     Whatever may have been argued.  Maybe privilege was one of them, I don't

25     know.

Page 7597

 1             MR. GUY-SMITH:  Your Honour, I really beg you here, I really do

 2     beg you here.  I'm reading from the decision.  I'm not reading what from

 3     what I call a horn-book.  I'm reading from the decision itself, a

 4     horn-book, a text book of decisional law.  I'm reading the decision

 5     itself.  What I quoted to is from a -- [Overlapping speakers] ...  so I

 6     would beg before you make a ruling here, because I think it is a point of

 7     some importance, to read the decision.  So that your analysis and your

 8     ruling is predicated upon a full appreciation of what the issues were at

 9     stake there, as opposed to what I would call a cherry-picking - not on

10     your part, but on the Prosecution's part - with regard to the holing that

11     was made.  Because the holding that was made was made in a particular

12     factual context.

13             JUDGE MOLOTO:  [Overlapping speakers] ... The holding, that's --

14             MR. GUY-SMITH:  I would also -- it's time for a break.

15             JUDGE MOLOTO:  I know it's time for a break.  Let me just leave

16     you with this one:  That I'm not going cherry-read or cherry-pick the

17     decision.  I will look at what the decision says finally, particularly

18     what you referred as to in it as regards its disposition.

19             I guess this would be an appropriate time to take a break.  We

20     will come back.  Hopefully we can look at the decisions during the break,

21     and I think it is also appropriate to you dis-mute, or un-mute, or what

22     you do?

23             MR. GUY-SMITH:  Yes, I will request that we go back to full

24     sound.

25             JUDGE MOLOTO:  Okay.  When we come -- yeah, can we go back to

Page 7598

 1     full sound, so that they can hear us taking the break.

 2             Thank you very much.  It seems to be time for a break.  We'll

 3     take a break and come back at a quarter to 6.00, and we will rule when we

 4     come back.

 5                            --- Recess taken at 5.18 p.m.

 6                            --- On resuming at 5.53 p.m.

 7             JUDGE MOLOTO:  The Chamber has had an opportunity to look at the

 8     decision, and the Chamber is in a position to give its ruling at this

 9     stage.

10             Yes, the motions brought before the Trial Chamber III were based

11     on privilege, to some extent.  However -- and the Chamber clearly

12     indicated that the Prosecution was out of court on privilege.  However,

13     it then said there is, however, a principle of ethnics that governs

14     relations between interviews with -- between lawyer and a witness, and

15     there are certain presumptions about honesty.  And if we want to cross

16     offer that border, an application should be made.  That seems to me to be

17     on all fours what we are dealing with here and not what was dealt with in

18     that case.

19             I would -- the Chamber would therefore rule that it does not bar

20     the Defence from this line of questioning, provided the Defence files a

21     motion.  It doesn't have to be a motion -- yeah, Mr. Guy-Smith, I see you

22     want to say something.

23             MR. GUY-SMITH:  Yes -- if I understand what you're your

24     ruling is, Your Honour, is this a motion that I can make orally, or is

25     this a motion you want in writing?  How would you like me to make this

Page 7599

 1     motion?  Because I think what I would like to do at this point in time

 2     with regard to this issue, if the Chamber wishes for me at this point in

 3     time to make such an application is, what I would like to do, is I would

 4     like to present some evidence to the Chamber and thereafter make an oral

 5     application with regard to this particular issue.

 6             JUDGE MOLOTO:  As I understand the -- this decision, it calls for

 7     a substantiated application.

 8             Sorry, there's a voice that keeps coming into my ears.  I don't

 9     know whether anybody hears it.

10             Anyway, it seems that it would have to do -- [technical

11     difficulty]

12             MR. GUY-SMITH:  If I might, with leave of the Chamber, what I'd

13     like to do at this time is I would like to play a brief segment of a

14     tape-recording that I received from the Prosecution which involves

15     specifically a conversation between Mr. Nice and the witness.  And

16     thereafter, because I think that it will explain to the Chamber precisely

17     what my thinking is.

18             I don't need to have this done necessarily in front of the

19     witness, because I don't want to influence the witness in any fashion

20     whatsoever.  But I think upon hearing the audiotape, it will be

21     self-explanatory.  This -- so the Chamber is aware, this tape -- I'm

22     sorry.

23             JUDGE MOLOTO:  We are disconnected with New York.  Did I say

24     "with"?  From.

25                           [Trial Chamber confers]

Page 7600

 1                           [Trial Chamber and registrar confer]

 2             JUDGE MOLOTO:  They're still trying to reconnect.  I don't know

 3     how long it would take.  We will just have to wait.

 4             MS. BOLTON:  I was just going to ask, Your Honour, are they not

 5     on mute in New York?  And if so, would there be any harm in our

 6     continuing this discussion if they are muted?

 7             MR. GUY-SMITH:  They are not on mute.  We asked --

 8             JUDGE MOLOTO:  We opened them before we took the break.

 9             MS. BOLTON:  Oh, okay.  Sorry, I missed that.

10             JUDGE MOLOTO:  Can you hear us now?  Are we connected?  Are we

11     reconnected?

12             THE REGISTRAR: [Via videolink] We can hear you well.

13             JUDGE MOLOTO:  Thank you.

14             Mr. Guy-Smith, I think we're -- [Microphone not activated]

15             THE INTERPRETER:  Microphone for His Honour.

16             JUDGE MOLOTO:  I'm sorry, I got repeat myself.  My mike was off.

17             I was saying, what you are saying is putting the cart before the

18     horse, because it goes against what I was saying, earlier, that, you

19     know, the Chamber doesn't deny you the right to cross-examine along those

20     lines.  But based on this Chamber III decision, you need to file an

21     application before you can do that.

22             Now, the decision requires the application to be substantiated,

23     and I think you want to put everything that you want to put on paper and

24     put it before us.  I don't know whether you would want to perhaps put

25     that -- this point for later cross-examination after filing of the

Page 7601

 1     application and carry on with other issues, or whichever way you would do

 2     it.  I understand that you're in the middle of cross-examination, and it

 3     takes time to file an application.

 4             MR. GUY-SMITH:  I appreciate what Your Honour has said.  And let

 5     me explain to you both the dilemma and the thinking that I'm having right

 6     now.

 7             Both the dilemma and thinking I'm going through right now and see

 8     whether or not perhaps I can persuade you to treat this issue in another

 9     fashion.  I'm not sure that I can.  But let me see what I can do.

10             We received from the Prosecution a number of tape-recordings

11     which were designated as 1A, 1B, 2A, 2B, 3A, 3B, 4A, 4B, all of which

12     were tape-recorded sessions between Mr. Nice and Mr. Sacirbey.  We

13     received a transcript of tapes 1A and 1B and were informed that the

14     balance of the tapes were not transcribed because they were inaudible and

15     too difficult to transcribe.

16             Through long and painstaking efforts, we have been able

17     understand portions, but certainly not the entirety of these tapes.

18             With regard to the issue that is at hand, I have some notes with

19     regard to a very specific portion of one of those tapes that addresses

20     the specific issue that we are discussing.  And I think that if you heard

21     the tape, if you heard the tape, that we may well be able to persuade

22     that you we have rebutted the presumption of regularity which is

23     considered within the decision that -- that we have been discussing.

24             So what my proposal would be at this time, with the Court's

25     indulgence, would be to -- of course because I do not wish to in any way

Page 7602

 1     influence the witness, would to be moot -- sorry, that would be mute, not

 2     moot.  Mute the sound, play -- I can do one of two things.  I can either

 3     read you what my rough notes are, and then can you hear the conversation,

 4     or you can hear the conversation, and to the extent that there's any lack

 5     of clarity within the conversation, perhaps this is a portion of the

 6     conversation that we can have at some time crystallized for us by an

 7     appropriate body.

 8             But I think that it is it pretty evident when you listen to not

 9     only the words spoken but the language and intent that the presumption of

10     regularity, in our respectful submission, will have been rebutted.

11             So that would be -- that would be my proposal at this time.  I

12     think it is it important that you hear -- hear it.

13             JUDGE MOLOTO:  Sure.  We don't refuse hearing it.  But it has got

14     to be part of the application, that is for our next annex to the proper

15     publication.

16             MR. GUY-SMITH:  Okay.

17             This -- so I'm clear about what the -- I just want it make sure

18     I'm clear about what the Chamber is going require.  I don't -- I don't

19     want to step too far afield, and I want to make sure that I've done

20     what --

21             You at this point, I think, if I understand it, require a written

22     application which is augmented by the oral language -- I'm sorry, written

23     application which is augmented by the tape, itself, so you can hear it.

24     But you don't know whether you require that or not.  If I see that to

25     be --  [Overlapping speakers] ...

Page 7603

 1             JUDGE MOLOTO:  [Overlapping speakers]...

 2             MR. GUY-SMITH:  Fine.  Okay, thank you.

 3             JUDGE MOLOTO:  Thank you.

 4             MR. GUY-SMITH:  Okay.

 5             And so what I -- with that as the understanding, it seems to

 6     me --

 7             JUDGE MOLOTO:  Your learned friend on her feet with that as an

 8     understanding.

 9             MS. BOLTON:  Sorry, I thought my friend had finished; he hadn't

10     finished his thought.  I do wish to have some input into this issue at

11     some point.

12             JUDGE MOLOTO:  Okay, we'll come back to you.

13             MS. BOLTON:  Thank you.

14             MR. GUY-SMITH:  With that as the understanding, considering where

15     we are, it seems to me that it would be inappropriate, based on the

16     Court's ruling, for me to continue in this line and for me to move to

17     some area other and then revisit this area as soon as possible, with the

18     Chamber upon making application.

19             The application that, at this point, I would be making, would be

20     an ex parte application, so that the Chamber is in a position to

21     independently view the evidence, since the application I am making is one

22     of necessarily prosecutorial misconduct.

23             JUDGE MOLOTO:  I -- obviously, the Chamber is not going to give

24     legal advice on how to prosecute that part of the case.  But, I'm just

25     wondering why ex parte.  But, you know, for starters this Chamber III

Page 7604

 1     decision doesn't seem to be ex parte.  It is not from the face of it, it

 2     is not ex parte, nor is it even confidential.

 3             MR. GUY-SMITH:  I understand that.  My legal preference would be

 4     not to have to throw down the gauntlet as far as, apparently, I do based

 5     upon the decisional law and interpretation of the Chamber, because I

 6     think there is a different basis for that.  So I'm trying to ...

 7                           [Trial Chamber and registrar confer]

 8             JUDGE MOLOTO:  Let's just check again.

 9             Can you hear us down there in New York?

10             THE WITNESS:  We can hear you, but the picture is frozen.

11             JUDGE MOLOTO:  The picture of us?  Or the picture of you?  Whose

12     picture?

13             THE WITNESS:  Yes.

14             JUDGE MOLOTO:  Yes to which one?

15             THE WITNESS:  Your picture, Your Honour, in fact, you --

16             JUDGE MOLOTO:  Okay.  Okay.  Are you happy to carry on provided

17     can you hear us, even if we look like statues to you, or do you want to

18     see us moving around?

19             THE WITNESS:  No, I'm happy for you to continue.  I recognise the

20     urgency and constraints we're dealing with.  Thank you, Your Honour.

21             JUDGE MOLOTO:  Thank you so much, Mr. Sacirbey.

22             Have you finished, Mr. -- yeah, you were saying something, then I

23     said -- [Microphone not activated]

24             MR. GUY-SMITH:  Excuse me -- [Microphone not activated]

25     [Overlapping speakers] ...

Page 7605

 1             JUDGE MOLOTO:  It's not me.  Technology is against you,

 2     Mr. Guy-Smith, it's not --

 3                           [Trial Chamber and registrar confer]

 4                           [Prosecution counsel confer]

 5             JUDGE MOLOTO:  Checking, checking.  Can you hear me?

 6             THE REGISTRAR: [Via videolink] We can hear you, Your Honour.

 7             JUDGE MOLOTO:  Do you hear me --

 8             THE REGISTRAR: [Via videolink] Can you hear us?

 9             JUDGE MOLOTO:  I hear you very well.  Do you hear me instantly,

10     or is there a delay?

11             THE WITNESS:  We can hear you very well, Your Honour.  I'm not

12     sure about the delay, but you sound clear.

13             JUDGE MOLOTO:  Thank you so much.

14             Yes, Mr. Guy-Smith, if can you brief.

15             MR. GUY-SMITH:  Surely.  Understanding the situation we're in,

16     what I am going to do at this point in time is I'm going to prepare an

17     application.  I will attach that evidence which I believe is germane to

18     the application, and we will proceed from that point and see where it all

19     goes.

20             I believe that Madam Bolton has some remarks to make, but I don't

21     know whether I need to respond to that or not.

22             JUDGE MOLOTO:  No, let's find out what she has got to say.

23             MS. BOLTON:  Yes, thank you.  In terms of the issue of it being

24     an ex parte application, the Prosecution is opposed to that.  This may be

25     an issue where we need to confer with the person who is actually being

Page 7606

 1     accused of misconduct, and that individual should have a right to know

 2     what they are being accused of and an opportunity to respond.

 3             Secondly, as my friend has already indicated, I don't know what

 4     portion of which tape is he referring to, but there's clearly an issue

 5     with respect to the audibility of those tapes.  And to what is actually

 6     said, there may very well be a dispute as to that is said and what

 7     context it is said in.  So I can't respond that, and the Prosecution

 8     can't respond to that, unless we are in fact a party to the application

 9     it's made, and there may be an issue with respect to timing.  Because

10     depending on what material is received from the Defence, there may be a

11     delay if I have to confer with, as I think I have an ethical duty to do,

12     confer with Sir Geoffrey Nice about whatever allegation is being made

13     against him.

14             So it may be that we deal with all of the cross-examination

15     expect this area, depending on how things go.  I just wanted it raise

16     that as potential issue.

17             MR. GUY-SMITH:  If I -- I'm sorry, if I might respond.

18             I think we are -- we now are really confusing the issue, and I

19     think we are shifting what the issue is here.  The issue is a really very

20     simple issue.  The issue whether or not there's prima facie evidence

21     sufficient for the Chamber to allow me to engage in cross-examination.

22     It has absolutely nothing to do with the person who is actually being

23     accused of misconduct and that individual having a right or an

24     opportunity to respond to the allegations.  It seems to me one of the

25     things is happening here, and it is unfortunate, but one of the things

Page 7607

 1     happening here is Ms. Bolton is concerning herself with protecting a

 2     great number of individuals who are not parties to this particular

 3     lawsuit.  The fact of the matter is, either I make a prima facie showing,

 4     which is sufficient for the Chamber to allow me to engage in the

 5     examination, or I don't.  And that is a factual determination which can

 6     be made on the state of the record.  But I take it we're not taking a

 7     look at, at this point, the particular intent of any particular

 8     individual, which is why I said a while ago that I really was not trying

 9     to through down the gauntlet as hard as I apparently need to in order to

10     continue this line of examination.

11             I really -- I really find myself in an unfortunate situation

12     because I think that the matter can be developed without having to cast

13     aspersions or mud on anyone, but unfortunately that seems to the

14     situation in which we are in.

15             JUDGE MOLOTO:  I hear what you say.  However, as I indicated

16     earlier, as soon as you mentioned ex parte, I expressed my doubts.  I do

17     not think this is a matter to be dealt with ex parte.  Irrespective of

18     whether or not the Prosecution would consult with Mr. Nice, I think they

19     still have a right to respond to -- to your motion, and you to reply.

20             Again, I don't describe to the parties how they file their

21     motions, how they file their response, and how they file their replies,

22     and what they must include in it, but I don't think it's an appropriate

23     motion for an ex parte procedure.

24             MR. GUY-SMITH:  Very well.  With all of the rulings and guidance

25     of the Chamber, I will proceed with my examination in an area that is

Page 7608

 1     slightly different from that which I have been in.

 2             JUDGE MOLOTO:  Thank you so much, Mr. Guy-Smith.

 3             You can still hear us?

 4             THE WITNESS:  Yes, we can, Your Honour.

 5             JUDGE MOLOTO:  Thank you so much.

 6             You may proceed, Mr. Guy-Smith.

 7             MR. GUY-SMITH:

 8        Q.   I'm going to move now to a slightly -- a different issue, as I

 9     think you understand we need to do at this time.  And I'm going to start

10     with an understanding with you, if I could, of when you became the

11     ambassador to the United Nations for Bosnia-Herzegovina.

12             As I understand what you've told us, prior to the time that

13     Bosnia-Herzegovina was recognised in the United Nations by resolution,

14     you had been working with the government.  Correct?

15        A.   That is correct.

16        Q.   And the date that Bosnia-Herzegovina became part of -- I'm sorry,

17     was recognised, I believe you told us, was the 22nd of May.  True?

18        A.   That is correct.

19        Q.   I'm sorry, we should be specific here.  1992.

20        A.   That is correct.

21        Q.   Now, before Bosnia-Herzegovina became recognised as an

22     independent state by the United Nations, there was some concern as to

23     whether or not you were going to be tied up in terms of being recognised;

24     correct?  Do you follow what I'm --

25        A.   That is correct.

Page 7609

 1        Q.   Okay.  In that regard, you learned before the time of the passing

 2     of the resolution that there was a plan afoot to keep Bosnia-Herzegovina

 3     from being recognised in the United Nations; correct?

 4        A.   There was a plan afoot to delay recognition potentially beyond

 5     that of Slovenia and Croatia.  That is correct.

 6        Q.   Correct.  And that is -- excuse me.  And that is information that

 7     you obtained, I believe, from the representative of Turkey?

 8        A.   That is one of the sources.  It's actually not the representative

 9     of Turkey but a Turkish national who was a representative of the

10     organisation of the Islamic conference.

11        Q.   Now, the Turkish national who was a representative of the

12     organisation of the Islamic conference, that particular individual, do

13     you by any chance, as we sit here -- or as you sit here, and I stand,

14     have his name in mind?

15        A.   Yes, I do.  It is right on the tip of my tongue.  But you'll

16     excuse me, if it just doesn't come to me right now.

17        Q.   That's fine.  And above and beyond or that, or in addition to

18     that particular gentleman being involved in this particular concern, if

19     I'm not mistaken, there was also the former ambassador of Saudi Arabia,

20     who was involved in the concern of the delay of the independence of

21     resolution being passed; correct?

22        A.   I believe the individual you are referring to was the president

23     of the General Assembly who happened to be also the former ambassador of

24     Saudi Arabia, and also the representative of Austria was another one.

25        Q.   Okay.  And with regard to this particular issue, and that is the

Page 7610

 1     issue of whether or not the resolution would be delayed for technical

 2     reasons, you were made a commitment, and I believe both you and

 3     Dr. Silajdzic were made a commitment, that the other two countries would

 4     not be admitted into the General Assembly until Bosnia was also admitted;

 5     correct?

 6        A.   I would prefer to define it as a package, that Bosnia, Croatia,

 7     and Slovenia would be admitted at the same time.

 8        Q.   Okay.  Well, let me refer you to page 35 of the transcript with

 9     regard to the meeting that you had with Mr. Nice.  And I'm referring you

10     to page -- to lines 20 through -- through 27 where you say, according to

11     the transcript that was provided to us by the Prosecutor:

12             "He made a commitment to Dr. Silajdzic and myself that the other

13     two countries would not be admitted.  He would not allow those of the

14     General Assembly until Bosnia was also admitted."

15        A.   Yes, I think -- I think, Mr. Guy-Smith, I said I preferred to

16     define it as.

17        Q.   Well, I understand that you say you would prefer to define it is

18     as, and apparently it has not come up on the screen, and I do -- that's

19     -- what's the number?  That's, once again, 1D03-1325 at page 35 of 62.

20     And there we go, yes.

21        A.   I have it front of me, Mr. Guy-Smith.

22        Q.   Okay.  That's what you told -- that's what you told Mr. Nice at

23     the time; correct?

24        A.   That's correct.

25        Q.   Okay.  Thank you.

Page 7611

 1             Now, when that occurred, was that something that occurred in a

 2     public session, with other participants of the United Nations?  Is that

 3     something that occurred in private session?  Was a hallway conversation?

 4     How did this come about?

 5             JUDGE MOLOTO:  When what occurred?

 6             THE WITNESS:  We had a meeting.

 7             MR. GUY-SMITH:  I'm sorry.

 8             JUDGE MOLOTO:  When what occurred?

 9             MS. ROHAN:  When the commitment was made by the gentleman that he

10     would not allow the other two countries to become -- to be recognised as

11     being independent in front of the General Assembly unless Bosnia was also

12     included.  Yeah.

13        Q.   You said had you a meeting, I think?

14             JUDGE MOLOTO:  [Microphone not activated]

15        A.   Mr. Guy-Smith, we had meetings with several ambassadors along the

16     same point, as I mentioned Austria, several others, United States.  We

17     definitely did receive a commitment from the president of the

18     General Assembly, who, as I pointed out, was a former ambassador of

19     Saudi Arabia to the United Nations.  And this was one of those private

20     meetings, or one might say, official but private meeting.

21        Q.   And with regard to this official but private meeting, as you have

22     characterized it, I take it that you were present, Dr. Silajdzic was

23     present, as well as the president of the General Assembly, with regard to

24     that particular meeting.  Correct?

25        A.   That is correct.

Page 7612

 1        Q.   Okay.

 2        A.   That is correct.

 3        Q.   Now with regard to that particular meeting, did you have occasion

 4     to make any notes of that meeting?

 5        A.   I may have, Mr. Guy-Smith, but usually if I would have kept

 6     notes, there would have been maybe to the effect of two, three, five,

 7     sentences at most.

 8        Q.   Okay.  And with regard to -- with regard to that, and this will

 9     become a, so you know, continuing question, do you have any -- as you sit

10     here today, do you have any of the notes that you may have taken or that

11     did you take throughout that period of time today?

12        A.   No, I do not believe that I do.  Unless they happen to be

13     casually inserted so some other document.

14        Q.   Okay.  Now, you also mentioned that you had a meeting with, I

15     believe, the representative of Austria; correct?

16        A.   That is correct.

17        Q.   And who would that have been?

18        A.   Again, the ambassador's name escapes me.  But we actually, even

19     at that time, made use of the premises of the mission of Austria in order

20     to be able to address various bureaucratic issues, i.e., providing

21     papers, drafting documents, whatever may have been necessary.

22        Q.   Okay, and you also mentioned that you had, I take it, a similar

23     conversation with regard to this particular resolution not being passed

24     unless all three countries were involved in it with the representative of

25     the United States of America?

Page 7613

 1        A.   We had several meetings with not necessarily the ambassador but

 2     with Jr. representatives.

 3             I personally remember meetings involving everything from the

 4     representative of Japan to other representatives on the Security Council

 5     primarily.  I would be a little bit hard-pressed to remember all of the

 6     ambassadors that we met with or that I may have met with by myself.  The

 7     you are urgency of Bosnia's admission to the United Nations, though, was

 8     a primary topic at the time.

 9        Q.   And as I understand the situation at that time, there were

10     efforts being made by the then Secretary-General, Boutros Boutros-Ghali,

11     from keeping Bosnia from being recognised at that time; is that correct?

12        A.   That's a characterization that I'm not prepared to acknowledge.

13     I believe there were efforts that we suspected were given some

14     information, but I think that would be probably an unfair conclusion on

15     my part.  I don't have absolute first-hand knowledge, although I do have

16     some information.

17        Q.   Okay.  Now, with regard to that, if we once again have the same

18     document up on the screen and the same page.

19        A.   Yes.

20        Q.   I'm referring you to line -- referring you to line 29, you told

21     Mr. Nice, did you not, that, and I quote the language here:

22             "The last effort to stop Bosnia from being admitted was that the

23     Secretary-General Boutros-Ghali - so I've had indiscernible conversations

24     since then about a lot of these events ..."

25             I take it what you referred to then was what you've just alluded

Page 7614

 1     to now with regard to the United Nations Secretary-General being involved

 2     in at least delaying the process of Bosnia-Herzegovina being recognised

 3     by the United Nations.

 4        A.   I think I'm referring there that obviously there were

 5     conversations that I've had since then which pointed as the

 6     Secretary-General being one of the potential stumbling-blocks.

 7        Q.   So I understand this, because I had a distinctly different

 8     impression of how the United Nations worked a couple of weeks ago when we

 9     were talking, and perhaps you can be of some assistance here.

10             From what I understand, you had a minimum of three separate

11     meetings with representatives from member states concerning, and I use

12     the word advisedly, but concerning a deal to be made in order for your --

13     constituency to be recognised by the United Nations.  This wasn't

14     something that happened in public, was it?

15        A.   Mr. Guy-Smith, perhaps I can clarify by exactly relating to you

16     the events of that moment, which was that Bosnia and Herzegovina had

17     forwarded an application to the Secretary-General's office, as it is

18     bound to, for admission to the United Nations.  Upon receiving the call

19     from the gentleman that I referred to, the representative of the OIC, I

20     was told that in fact there might be some problems with our application.

21     I immediately took it upon myself to try to locate the status of our

22     application within the Secretary-General's office.

23        Q.   Could I stop you there for a moment.

24        A.   When refer here to Secretary-General Boutros-Ghali, I'm referring

25     to his office --

Page 7615

 1        Q.   Could I stop you there for a moment.

 2        A.   And to be very blunt --

 3        Q.   Could I stop there for a moment, sir.  Could I stop you there for

 4     a moment, please.

 5        A.   [Overlapping speakers] ... please --

 6        Q.   Because I would really like to understand your answer here.

 7        A.   Please.

 8        Q.   You said, Upon receiving the call from the gentleman that I

 9     referred to, the representative of the OIC, I was told in fact there

10     might be some problems with our application.

11             Now was the gentleman who you talked to from the OIC, is he part

12     of some kind of vetting committee that makes a determination whether or

13     not your application is in order for purposes of it becoming a

14     resolution?

15        A.   I just recall the gentleman's name.  It's Enjin Ansaj [phoen].

16     And, no, I don't believe so, and I, frankly, had never met the gentleman

17     before until I received the call.  He just made the point that there

18     seemed to have been some problem with our application.  And to use a term

19     that we use here often in America, something was not kosher.

20        Q.   Okay, and when something was not kosher, I take it that what

21     you're saying is that there was some belief, and I'm asking you the

22     question now, when something is not kosher in a political sense, there is

23     usually some kind of conspiracy afoot with regard to what is going on.

24     Is that what you're referring to?  There was some -- some conspiracy or

25     some decision made by other member states in terms of denying

Page 7616

 1     Bosnia-Herzegovina the ability to be recognised by the General Assembly

 2     of the United Nations?

 3        A.   I'm not aware of any conspiracy.  I'm aware of the fact that when

 4     I contacted the Secretary General's office, I was told that in fact our

 5     application was in office A, then office B, ultimately turned out that it

 6     was misplaced.  And actually we, at that moment, made a new application

 7     and presented it to the Secretary General on a moment's notice.

 8        Q.   Okay.

 9        A.   Why that problem developed, I have been told several stories.

10     Which of those stories is absolutely accurate, I'm not sure.

11        Q.   Can you help us at all with the fact that you were receiving

12     information from an individual who you had never met before, who was the

13     representative of the organisation of the Islamic council with regard to

14     this particular issue?  Do you have any information about how that

15     occurred --

16        A.   If in fact -- well, actually I do remember that at that time, the

17     call had came through the mission of Austria, because that's where, in

18     fact, we had been meeting, and somehow he tracked us down.  You'll

19     recall, of course, this was the time before cell phones or at least some

20     sort of mass use of cell phones.

21        Q.   Okay.  And with regard to this -- this particular issue, it

22     sounds like there -- and I'm asking you once again, and you're certainly

23     in a better position than I am to -- to explain this.  It sounds like

24     there was some argument that was going on between a number of parties

25     with regard to this particular matter, which is the resolution being

Page 7617

 1     passed.

 2             Can you help out at all in that regard?

 3        A.   Absolutely.  Absolutely, Mr. Guy-Smith.  I think we're talking,

 4     though, about two separate issues that may have been related.  And

 5     certainly when I'm -- when I'm looking upon these issues, one is that,

 6     clearly, there was a discussion as to whether or not Bosnia and

 7     Herzegovina should be admitted at the same time as Croatia and Slovenia.

 8             On the other hand there seemed to have been at least some sort

 9     of, one would say, bureaucratic screw-up where an application dually

10     made, in fact, could not at first be located.  And then only subsequent

11     to our extensive searches was it located, and we were told, Well, there

12     might be some problem with the fact that it was faxed from Sarajevo

13     rather than delivered -- hand-delivered or provided by mail.  We took

14     very quick action to provide a new application immediately signed by

15     Dr. Silajdzic who was empowered to do that on behalf of Bosnia and

16     Herzegovina.

17             Now, to what extent these issues are linked, certainly did raise

18     some concerns, if you would, even suspicions.  Was there a conspiracy?

19     I'm not certainly not prepared to go to that length at all.  And finally

20     the issue was resolved.

21             So I'm happy to say that subsequent information that I received

22     did indicate that maybe something was not kosher.  Did I ever get to the

23     bottom of it?  Not really.  Did I feel it was a relevant item to raise in

24     my interview with the Prosecution?  Probably.

25        Q.   Okay.  I thank you for that -- I thank you for that answer.

Page 7618

 1             With regard to what happened before this -- this particular

 2     incident, I understand that you had a meeting with Mr. Vance concerning

 3     the issue of the referendum.

 4             Do you recall that?

 5        A.   That is correct.  That occurred actually several months -- yes, I

 6     do.  Several months earlier.

 7        Q.   Okay.  And with regard to the issue of the referendum, as I'm

 8     sure you are aware, the question of the referendum dealt with the

 9     specific issue of who was going to vote for what particular state;

10     correct?

11        A.   I --

12        Q.   I'm trying to make it as general as I can for the moment.

13        A.   Let's -- let's assume it was the about the future status of

14     Bosnia and Herzegovina.

15        Q.   Okay.  In that regard, when you met with Mr. Vance --

16        A.   Mr. Guy-Smith, you know the screen here is gone blank, but I can

17     hear you just fine, so I'm happy to continue.

18        Q.   Okay.  If you're happy to continue, so am I.  If you're not, then

19     I'll deal with that too.  But since you said you are, that's fine.

20             Now, in your discussion with Mr. Vance, there was no question as

21     to whether or not the referendum itself was proper; correct?

22        A.   That is correct.

23        Q.   And so as you've characterized it before, before you met with

24     Mr. Vance, the issue of the propriety of the referendum was already a

25     fate accompli; right?

Page 7619

 1        A.   I believe it was, yes.

 2        Q.   When referring to Mr. Vance, for purposes of record, since we

 3     have both been discussing this gentleman's name, who are we talking

 4     about?

 5        A.   We're talking about a gentleman that has passed away, a very

 6     distinguished US diplomat named Cyrus Vance, and he was at that acting in

 7     a capacity as a Special Representative for the United Nations.

 8        Q.   And at that point in time when was acting in the special

 9     capacity, he, that is, Mr. Vance had made a determination that he felt

10     this was an appropriate way to go, and by that I mean the referendum was

11     an appropriate way to proceed forward; correct?

12        A.   Based on the meeting that I attended, and this was in February of

13     1992, that I believe is correct.

14        Q.   Okay.  Now with regard to that meeting that you had with him, the

15     issue of a potential boycott came up.  And if I'm not mistaken, it did

16     not cause Mr. Vance any concerns with regard to potentially delaying or

17     not going ahead with the election; correct?

18             MS. BOLTON:  Sorry, I'm not sure to what extent this witness can

19     comment on what concerns -- what the mental state was of Cyrus Vance.

20             MR. GUY-SMITH:  Okay, I would be more than happy to rephrase the

21     document.

22             JUDGE MOLOTO:  Thank you, Mr. Guy-Smith.

23             MR. GUY-SMITH:  If we could please have the same document again

24     at page 27.

25        Q.   And I'm referring to you line 14 in which you said to Mr. Nice,

Page 7620

 1     and I quote:

 2             "The emphasis of course was to try to get all the Bosnians to

 3     vote, but when the issue of potential sort of boycott came about, and it

 4     did not in any way cause Mr. Vance to say, We should delay or not go

 5     ahead with the elections."

 6             Correct?

 7        A.   I believe that statement -- yes, that statement is accurate.

 8        Q.   Okay.  And then you went on to tell Mr. Nice, with regard to this

 9     particular meeting:

10             "That the meeting with the Secretary General was more

11     perfunctory, but in both instances, it was clear that a referendum for

12     independence was almost a foregone conclusion.  And what was really

13     needed to be done was chart the course of how we get from the referendum

14     to the actual form of independence."

15             Right?

16        A.   That's correct.

17        Q.   So with regard to this meeting that you had with Mr. Vance, do

18     you know who else was privy to the determination that had been made

19     concerning that there would be a referendum for independence?

20        A.   No, I do not.

21        Q.   Okay.  I'm -- the reason I'm asking you the question --

22        A.   You mean from --

23        Q.   The reason I'm asking the question is, with regard to the matter

24     we were referring to beforehand, it seemed that there were - shall we put

25     it this way - a lot of ears to the ground who had information concerning

Page 7621

 1     with a was going on, and by that I'm referring to the delay of the

 2     resolution for your independence.  By you, I'm talking obviously about

 3     Bosnia-Herzegovina.

 4             So I'm wondering if you know whether or not the same kind of

 5     information was available to other nation states or members of the

 6     United Nations, with regard to the fact that it had been decided that

 7     there would be a referendum for independence, irrespective of a boycott?

 8        A.   I think, Mr. Guy-Smith, we're talking about the referendum taking

 9     place at the very end of February.  And when we're talking about Bosnia's

10     admission to the United Nations, these critical moments discussed

11     beforehand was really in mid-May.

12        Q.   Yes absolutely.

13        A.   [Overlapping speakers] ...

14        Q.   [Overlapping speakers] ...  Yes, absolutely, but what I'm

15     referring to is the nature of the kind of conversation, not the time of

16     the conversation, but the fact that there seems to be a number of private

17     conversations between member states to which the General Assembly or the

18     Security Council is not necessarily privy to in which major international

19     decisions are being made.

20        A.   If you're talking about the continuing negotiations that were

21     held in various parts mostly of Europe regarding the status of Bosnia and

22     Herzegovina during this period of time, I'm well aware of those

23     occurring.  However, I did not attend, nor did I receive any sort of

24     briefing at that time.  I was not a Bosnian official.  Frankly, I didn't

25     even think that I would be.  I thought I was helping rather than taking

Page 7622

 1     on a responsibility.

 2        Q.   Sorry.

 3        A.   Mr. Guy-Smith?

 4        Q.   Yes, I am here.  I was reading your answer.  There was a word

 5     that I didn't pick up, but I'm fine now.  Thank you.

 6             Ultimately, the resolution passed, and Bosnia became a member

 7     state; correct?

 8        A.   That is correct.  We were actually sponsored by Finland.

 9        Q.   And when it became a member state, it was, of course, subject to

10     all of the rules and regulations of the United Nations.  True?

11        A.   Correct.

12        Q.   And with regard to resolutions that had been passed beforehand,

13     before it became a member state, there was a particular resolution that

14     caused, shall we say, not only discussion, but also great concern, as far

15     as you were -- as far as you were concerned, with regard to an embargo.

16     True?

17        A.   That is correct.

18        Q.   And I am referring to Resolution 713, which is Exhibit P2431.

19             Now, with regard to Resolution 71 --

20        A.   That is correct.

21        Q.   With regard to the Resolution 713 --

22             MS. BOLTON:  Sorry, I don't know about anyone else, but I just

23     have Mr. Guy-Smith on my screen and not New York.  Is it just me?

24             JUDGE MOLOTO:  Welcome to the club.  And I thought I heard

25     Mr. Sacirbey start a sentence and getting cut off.

Page 7623

 1             MR. GUY-SMITH:  And I seem to be -- well, I was frozen in time,

 2     and then I'm not, and then I am.

 3             THE WITNESS:  If -- we could still hear you.

 4                           [Trial Chamber and registrar confer]

 5                           [Defence counsel confer]

 6             JUDGE MOLOTO:  Did you -- okay.

 7                           [Trial Chamber and registrar confer]

 8             MR. GUY-SMITH:

 9        Q.   Mr. Sacirbey, can you hear me?

10        A.   Absolutely.

11        Q.   Wonderful.  We were discussing 713.  And as I understand

12     Resolution 713, it was a total embargo in the area including

13     Bosnia-Herzegovina; correct?

14        A.   The language was on Yugoslavia which was subsequently deemed to

15     be the territory of the former Yugoslavia.

16        Q.   With regard to -- with regard to Resolution 713, can you tell us,

17     is it your understanding that 713 was a resolution passed under

18     chapter 7?

19        A.   Yes, I believe it was.

20        Q.   Okay, and as I understand your position and your understanding of

21     chapter 7, chapter 7 made the resolution mandatory for member states;

22     correct?

23        A.   That is correct.

24        Q.   And certainly by the 22nd of May, Bosnia-Herzegovina was a member

25     state; right?

Page 7624

 1        A.   That is correct.

 2        Q.   And as a matter of fact, and we will be discussing this more

 3     fully as -- as time goes on in our conversation, this was a matter that

 4     you constantly and repeatedly raised with the various members of the

 5     General Assembly and the Security Council, which was the lifting of the

 6     provisions of 713 as against Bosnia-Herzegovina with no success; correct?

 7        A.   I'm not sure I would agree with just that last part of the

 8     statement, with no success, but certainly that was the focus of one of

 9     our diplomatic efforts, certainly a high priority.

10        Q.   But with regard to the issue of no success, it's certainly

11     something that was not available to you in the calendar years of 1992,

12     1993, 1994 and a considerable part of 1995; correct?

13        A.   That is correct.  But diplomatic initiatives sometimes have

14     results that are not necessarily direct.

15        Q.   I'm sorry, when you say -- when you say that diplomatic

16     initiatives sometimes have results that are not necessarily direct, could

17     you please explain what you mean by that, sir?

18        A.   Yes.  There were states that ultimately took the view that

19     Resolution 713 was not binding upon Bosnia-Herzegovina because it had

20     been adopted before Bosnia and Herzegovina was a member state, and

21     because Bosnia and Herzegovina was faced with a direct assault upon its

22     sovereignty and territorial integrity and, in fact, its primary right to

23     defend itself was the one that legally dominated.

24        Q.   And is that -- the matter that you just -- you've just raised is,

25     that a matter that was accepted by the Security Council with regard to

Page 7625

 1     the mandatory provisions under chapter 7 or is what you're --

 2        A.   [Overlapping speakers]

 3        Q.   -- or is what you're telling us now that various states

 4     interpreted the law as they chose to and acted accordingly?

 5        A.   First of all, I think the last statement that you made is largely

 6     correct.  Second of all, again I emphasise the resolution never defined

 7     Bosnia and Herzegovina as someone that was subject directly to the arms

 8     embargo, and certainly not under the conditions of being under direct

 9     assault and genocide.

10        Q.   Well, now the last --

11             JUDGE MOLOTO:  Let me just understanding something here.

12             Mr. Sacirbey, a little earlier you said the resolution applied

13     to - its mentioned Yugoslavia, thereby referring to the former

14     Yugoslavia.  Did it exclude Bosnia-Herzegovina?

15             THE WITNESS:  Not explicitly, Your Honour.  When the resolution

16     was adopted, there was never a view that Yugoslavia would become several

17     different countries, at least the way I understand it.

18             JUDGE MOLOTO:  So how do you then say Bosnia and Herzegovina was

19     excluded from this resolution?  I don't understand what you mean if --

20             THE WITNESS:  No, Your Honour -- Your Honour, I don't believe

21     I've ever said in my testimony that Bosnia-Herzegovina was excluded.  I'm

22     saying, in fact, was Bosnia and Herzegovina included?  And my view is

23     that Bosnia and Herzegovina, because it had not been a member state at

24     the time that the resolution was adopted, and because, also, at that time

25     it had been under direct assault and its population was threatened by

Page 7626

 1     genocide, in fact, was not covered by that resolution.

 2             JUDGE MOLOTO: [Overlapping speakers] ...

 3             THE WITNESS:  If I used the word "excluded," I mean that

 4     [Overlapping speakers] --

 5             JUDGE MOLOTO:  Well --

 6             THE WITNESS:  -- not covered.

 7             JUDGE MOLOTO:  My apologies if I mischaracterized your answer,

 8     but that very point you are making, the argument you are making that

 9     Bosnia and Herzegovina was not a member state, certainly, that doesn't

10     exclude it and in any case if the former Yugoslavia as a whole country is

11     affected by the resolution.

12             So whether or not Bosnia is a member state becomes irrelevant,

13     doesn't it?

14             THE WITNESS:  Not necessarily Your Honour because part of

15     Bosnia's obligation, as well as right, once it is a member state, a

16     sovereign state, is that to defend its territorial integrity and

17     sovereignty, and now it has a distinct obligation to defend its

18     population.  When it was a part of the former Yugoslavia as a whole, that

19     distinct obligation did not exist in terms of the government of the

20     Republic of Bosnia and Herzegovina.

21             JUDGE MOLOTO:  Okay.

22             THE WITNESS:  So we were faced with what amounted to an inept

23     challenge to our territory -- an inept, I should say, effort to defend

24     our population as well as our sovereignty and territorial integrity from

25     the international community and, at the same time, we had an obligation,

Page 7627

 1     as a state, to defend that sovereignty and territorial integrity, and

 2     particularly defend the population therein.

 3             JUDGE MOLOTO:  Okay.

 4             THE WITNESS:  So clearly there were some contradictions.

 5             JUDGE MOLOTO:  Okay.  So my -- am I understanding correctly, the

 6     interpretation of the resolution then was:  This resolution was passed

 7     with respect to the former Yugoslavia, at the time Bosnia-Herzegovina was

 8     not an independent state.  Now that Bosnia-Herzegovina is an independent

 9     state it acquires rights and obligations, amongst them the right to

10     defend itself; therefore, it gets extricated from the obligations of

11     former Yugoslavia.  It assumes its own obligations as an independent

12     state?

13             THE WITNESS:  That is correct, Your Honour, and especially in

14     view of the reality it continued from May 22nd to the end of the war.

15             JUDGE MOLOTO:  Okay.

16             THE WITNESS:  Absolutely correct, Your Honour.

17             JUDGE MOLOTO:  I just wanted to understand how your thinking goes

18     on this line.  Thank you so much.

19             I'm sorry, Mr. Guy-Smith.

20             MR. GUY-SMITH:  Not a problem, at all, Your Honour.

21        Q.   And I take it since you've taken that position with regard to

22     Bosnia-Herzegovina, the same would be true for the other former parts of

23     Yugoslavia that became independent states.  They, too would --

24        A.   That would be for those states --

25        Q.   They, too would -- had --

Page 7628

 1        A.   That would be for those states to assert and, of course, for what

 2     purpose.

 3             JUDGE MOLOTO:  Sorry, if you can repeat that answer again.  We

 4     didn't hear you, "... that would be for those states ..."?

 5             THE WITNESS:  Yes.  I -- it would be -- that right and

 6     obligation, of course, would be for those states to assert and, of

 7     course, the purpose of that.  I am explicitly tying Bosnia's view on this

 8     to the defence against an actual war and what we saw as a genocide going

 9     on.

10             MR. GUY-SMITH:

11        Q.   And so -- so we're clear, the view that you have expressed here,

12     if I understand your testimony correctly, is a view that if they chose

13     to, would have similarly been expressed by Slovenia, Croatia; correct?

14        A.   Could have been, yes.  Could have been, yes.  I would prefer not

15     to speak on their behalf although I think they were at least [Overlapping

16     speakers] --

17        Q.   Well, what I'm getting at is a general proposition.

18        A.   [Overlapping speakers] ... adopting it.

19        Q.   What I'm getting at is a general proposition that you're

20     suggesting was available for analysis which is that although the

21     provision under chapter 7 was mandatory with regard to the former

22     Yugoslavia, there were exceptions to the mandatory provisions of this

23     resolution by virtue of the analysis that you've just engaged in?

24        A.   Yes, I they think we can safely say that Slovenia was completely

25     free of conflict at that time and Croatia was largely at least -- yes,

Page 7629

 1     but I think that would be probably a pretty accurate state.

 2        Q.   Okay.  And with regard to what we're referring to the here, we're

 3     referring to the issue of member states because chapter 7 specifically

 4     applies to member states; correct?

 5        A.   That is correct.

 6        Q.   Okay.  Now, you were -- oh, my goodness.

 7             You were not trained -- the oh my goodness was looking at the

 8     time, my friend.

 9             You were not trained as a diplomat; correct?

10        A.   That is correct.

11        Q.   And were you ever made aware of the statement that was made by --

12     I believe it was Mr. Owen in a book that he wrote, and if I could, I'm

13     going to pull it up for you so I could get it properly.

14             MR. GUY-SMITH:  And that's going to be 1D00-1843, which is going

15     to be...

16             MS. BOLTON:  Tab?

17             MR. GUY-SMITH:  54.

18        Q.   And I'm referring to Lord David Owen, a gentleman whom I believe

19     you knew; correct?  And I'm referring to page --

20        A.   That's correct.

21             JUDGE MOLOTO:  Yes, Madam.

22             MS. BOLTON:  Sir, I have something that looks like it's written

23     by Marjan Malesic at that tab.

24             MR. GUY-SMITH:  That's correct.  And go to page --

25             THE REGISTRAR: [Via videolink] That's what we have as well, Your

Page 7630

 1     Honours.

 2             MR. GUY-SMITH:  Go to page 25.

 3             JUDGE MOLOTO:  Page 25, Madam Registrar.

 4             MR. GUY-SMITH:  Which going to be 26 in e-court.

 5        Q.   Nothing --

 6             MS. BOLTON:  I'm sorry, I'm quite confused.  I thought we were

 7     talking about something that Lord Owen had written.

 8             MR. GUY-SMITH:  Yes.  Bear with me and all will come out in the

 9     wash.

10        Q.   In the very first paragraph of his book --

11             MR. GUY-SMITH:  Go down, scroll down, please.  Further, further,

12     further.  Beautiful.

13        Q.   Balkan Odyssey, Owen emphasised that:

14             "Nothing is simple in the Balkans.  History pervades everything

15     and complexities confound even the most careful study.  Never before in

16     over 30 years of public life have I had to operate in such a climate of

17     dishonour, propaganda, and dissembling.  Many of the people with whom

18     I've had to deal with in the former Yugoslavia were literally strangers

19     to the truth."

20             Are you familiar with that particular statement of Lord Owen?

21        A.   Yes, we actually even talked about it once or twice.

22             MR. GUY-SMITH:  Would this be an appropriate time?

23             JUDGE MOLOTO:  It would be a perfect time.

24             We stand adjourned to tomorrow, the 30th of June at 2.00 --

25     quarter past 2.00 in the afternoon.

Page 7631

 1             Court adjourned.

 2                            --- Whereupon the hearing adjourned at 7.02 p.m.,

 3                           to be reconvened on Tuesday, the 30th day of June,

 4                           2009, at 2.15 p.m.