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
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
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
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
Page 7536
1 go to Columbia
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
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
4 them, under the leadership of some of the regional leaders, that the
5 former Yugoslavia
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
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
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
10 regime. But at the same time we continued to have friends from not only
11 the former Yugoslavia
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
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
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
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
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
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
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
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
21 my US
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
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
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
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
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
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
1
2
3
4
5
6
7
8
9
10
11 Pages 7566-7572 redacted. Private session.
12
13
14
15
16
17
18
19
20
21
22
23
24
25
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
7 Herzegovina
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
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
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
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
22 Herzegovina
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
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
14 Yugoslavia
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
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
13 doesn't it?
14 THE WITNESS: Not necessarily Your Honour because part of
15 Bosnia
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
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
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
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
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
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
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.
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