1 Wednesday, 1 July, 2009
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 2.19 p.m.
5 JUDGE MOLOTO: Good afternoon to everybody in and around the
6 courtroom. And good morning to everybody out there in New York.
7 [Microphone not activated]... Mr. Registrar, will you please
8 call the case.
9 THE REGISTRAR: Good afternoon, Your Honours, good afternoon to
10 everyone in and around the courtroom. This is case number IT-04-81-T,
11 the Prosecutor versus Momcilo Perisic. Thank you.
12 JUDGE MOLOTO: Thank you very much, can we have appearances for
13 starting with the Prosecution.
14 MS. BOLTON: Good afternoon, Your Honours, Lorna Bolton,
15 Carmela Javier, and Mark Harmon for the Prosecution.
16 JUDGE MOLOTO: Thank you so much. And for the Defence.
17 MR. GUY-SMITH: Good afternoon, Your Honours. Daniela Tasic,
19 Milos Androvic, Novak Lukic, and I'm Guy-Smith on behalf of
20 General Perisic.
21 JUDGE MOLOTO: Thank you very much, Mr. Guy-Smith. Good
22 afternoon to you, Mr. Sacirbey.
23 THE WITNESS: [Via videolink] Good morning, Your Honour
24 JUDGE MOLOTO: Good morning. I beg your pardon. I've been up
25 for a long time.
1 Mr. Sacirbey, the ritual again, you are bounds by the declaration
2 you made at the beginning of your testimony to tell the truth, the whole
3 truth, and nothing else but the truth.
4 THE WITNESS: [Via videolink] I understand, Your Honour. Thank
6 JUDGE MOLOTO: Thank you very much.
7 Mr. Guy-Smith, before I call you, simply because of the urgency
8 of the matter and the lack of time, the Chamber has now received the
9 response from the Prosecution yesterday. And we'll just give an oral
10 ruling to grant the alternative of the application.
11 MR. GUY-SMITH: Thank you.
12 JUDGE MOLOTO: You are welcome.
13 Mr. Guy-Smith.
14 WITNESS: MUHAMED SACIRBEY [Resumed]
15 [Witness testified via videolink]
16 Cross-examination by Mr. Guy-Smith: [Continued]
17 Q. Good morning, Mr. Sacirbey.
18 A. Good morning, Mr. Guy-Smith.
19 Q. I trust you had a good sleep.
20 A. Could have used a little more, but otherwise, it's been quite
21 good. Thank you.
22 Q. I want to start today's discussion with a quote, and I think
23 we'll move from that position, and I'm going to be dealing with the issue
24 of diplomacy. Ambrose Bierce said, Diplomacy is it the patriotic art of
25 lying for one's country. And I don't believe that he said that in a
1 necessarily negative fashion but, rather, a recognition of what indeed
2 occurred in the world of the, what I'll call for the moment, real politik
3 and diplomacy. You've told us that you were an ambassador, and I believe
4 it would be fair to say that you, for some period of time of your life,
5 were a diplomat; correct?
6 A. That's correct.
7 Q. And in the --
8 JUDGE MOLOTO: May I interrupt you, Mr. Guy-Smith. I'm awfully
9 sorry to do so.
10 MR. GUY-SMITH: Sure.
11 JUDGE MOLOTO: May the record show that again today we are
12 sitting pursuant to Rule 15 bis in the absence of Judge David, who is
13 involved in another case, Lukic and Lukic. Thank you so much. I am
14 sorry, I should have said at that at the beginning, Mr. Guy-Smith.
15 MR. GUY-SMITH: Certainly, not a problem.
16 Q. And in the context of being a diplomat, there are many
17 considerations that you underwent in terms of forwarding the positions
18 that you felt were important for your country; correct?
19 A. That's correct.
20 Q. And among other things, you had to make determinations about such
21 things as what member states or nations you could obtain as allies for
22 your position; true?
23 A. Certainly in part.
24 Q. What member states or nations would be your opponents? And I'm
25 speaking now in a diplomatic sense, not the sense of a Clausewitzian
2 A. I think as a good diplomat you try to keep that to a minimum, if
3 at all. You try to maintain also communications -- as you could.
4 Q. Sure. There's a recognition that there are independent concerns
5 and interests of the various participants in the diplomatic dialogue;
7 A. That's correct.
8 Q. And with regard to your efforts, it would be fair to say, for
9 example, that one of the groups within the context of a diplomatic ally
10 that you had was the OIC, which is something that we've discussed before;
12 A. That is correct.
13 Q. Now, with regard to the issue of Russia, you commented on some
14 questioning asked by Ms. Bolton the other day that often times, and if
15 I'm going too far, please let me know, often times Russia took the
16 position that was allied with the Federal Republic of Yugoslavia; true?
17 A. I prefer to use the word sometime "sympathies" which is a lot
18 more vague in what positions may have been undertaken by any one country.
19 Q. Okay. Within the context of the diplomatic jargon, does
20 "sympathy" have any particular significance? Is it a term of art as used
21 amongst you folks?
22 A. No, actually, I would say not in this case. It's just maybe a
23 personal observation, and one that gave, obviously, the opportunity for
25 to Bosnia
1 helpful in trying to resolve the crisis, the anti-aggression, and the
3 Q. Now, with regard to statements made, and at this time I'm
4 speaking about generally, oftentimes statements that were made with
5 regard to the pressing issues at hand - and for example, I'm going to
6 return to 71.3, Resolution that is - were made in private as between
7 diplomats; correct?
8 A. That's correct.
9 Q. And there was an understanding that you obtained over your tenure
10 at the United Nations that there was a body of thought that that
11 particular resolution did not apply, as you've told us before, to
12 Bosnia-Herzegovina because Bosnia-Herzegovina had not been in existence
13 at the time of its passing; right?
14 A. That's correct, as a recognised member state.
15 Q. And with regard to the issue then that exists as to whether or
16 not the resolution would have any effect upon you, and by you I mean
18 under the strictures of that particular resolution by a number of your
19 allies; correct?
20 A. That's correct.
21 Q. Now, there was a competing view that existed during the tenure of
22 your ambassadorship during the conflict, and that competing view was that
23 as a, and I'm going to put it in these terms, as a geographical matter,
24 any nation, state or entity -- and the reason I'm doing that, I think, is
25 self-evident, because of -- there were the Republic of Srpska
1 Republic of Srpska Krajina that were claimed also as nation-states during
2 that time, whether you agree or disagree with the validity of their
3 creation, that geographically all political entities that existed in the
4 former Yugoslavia
5 A. I would agree with the statement that all of the territory of the
6 former Yugoslavia
7 Q. Okay. Okay. And within the context of the territory of the
8 former Yugoslavia
9 territory, Bosnia-Herzegovina; correct?
10 A. That's correct.
11 Q. Croatia
12 A. That's correct.
13 Q. The Republic of Srpska
14 A. That actually never came into discussion, again, because they did
15 not have the status of either a recognised member state or someone who in
16 fact was involved in defence against aggression and genocide.
17 Q. Slovakia
18 A. You mean Slovenia
19 Q. I'm sorry. Thank you so much, Slovenia. Thank you. It must be
20 because it's Canada Day that I made a mistake.
21 And happy Canada Day to all Canadians.
22 Federal Republic of Yugoslavia; correct?
23 A. That's correct. Serbia
24 Q. And there was also an entity called the Republic of
25 Srpska Krajina; correct?
1 A. Again, a non-recognised entity, that's correct.
2 Q. When you use the term non-recognised entity, does that mean by
3 virtue of the fact that they were a non-recognised entity, they were in
4 your estimation, by your estimation, I'm referring to you as a diplomat
5 for Bosnia-Herzegovina, not under consideration nor part of the
6 discussion with regard to the solution of the former territory of
8 A. No, actually, I would not make that broad statement. First of
9 all, they were not recognised by any member state of the United Nations,
10 nor were they recognised as having any sort of international status. On
11 the other hand during numerous negotiations on behalf of
12 Bosnia-Herzegovina, I and other, obviously, representatives of the
13 government of the Republic of Bosnia-Herzegovina did in fact engage
14 directly sometimes, frequently indirectly with negotiations of those who
15 represented themselves as being representatives of a certain internal, if
16 you would, institution, internal designation, whatever in fact that may
17 eventually evolve to be.
18 JUDGE MOLOTO: Mr. Sacirbey, we would like to finish.
19 When Mr. Guy-Smith suggested political entities within the former
21 territory. Do you accept that territory of the RSK and the territory of
22 the RS is part of the former Yugoslavia
23 THE WITNESS: [Via videolink] That is correct.
24 JUDGE MOLOTO: And that, therefore, Resolution 713 would apply to
25 them equally by virtue of the fact that they are part of the --
1 THE WITNESS: [Via videolink] That is correct.
2 JUDGE MOLOTO: Thank you.
3 THE WITNESS: [Via videolink] That is correct.
4 MR. GUY-SMITH:
5 Q. Would you agree with the following proposition: That an
6 agreement between governments can be defined as an exchange of
7 conditional promises by which each party declares that it will act in a
8 certain way on condition that the other parties act in accordance with
9 their promises. Sanctions supported by a higher authority cannot be
10 invoked in case of a violation as they can for contracts under domestic
11 law, nonetheless, these promises are significant since the parties have
12 an interest in living up to them for other reasons.
13 A. There may be obligations that have a reciprocal nature, that is,
14 reciprocity. And if that's the way you use conditionality, I agree. Of
15 course other agreements may have an absolute nature to them.
16 Q. And with regard to the issue of the absolute nature of them, with
17 your contact with other member states, did you have, during your tenure
18 as an ambassador, agreements on behalf of Bosnia-Herzegovina that had an
19 absolute nature to them?
20 A. Yes, I think that is fair to say.
21 Q. Now, areas where, from the time that you began your tenure as the
22 ambassador until Dayton
23 nature, were such things as the map; correct? That was a topic of
24 ever-changing discussion?
25 A. I would disagree with that, Mr. Guy-Smith. I think once Bosnia
1 was accepted as a member state, it was accepted within the notion of its
2 territorial integrity and sovereignty. That was not a matter to be
3 tested from the outside by any neighbour or other state. It could only
4 be discussed in the context of any sort of internal territorial
5 delineation as regions, potentially, or as we have in Canada, provinces,
6 or in the United States, as we have states, or as we have in many other
7 situations some form of municipal --
8 Q. Isn't it a fact, Mr. Sacirbey, that there were a number of
9 discussions about changing the contours of the map, both under the
10 Vance Owen plan as well as private discussions that you had with various
11 representatives of member states; isn't that true?
12 A. Never in the context of changing international borders, at least
13 that I'm privy to, and to the extent that some one may have wished to
14 initiate them, I would not engage in such. I am not privy, as a Bosnian
15 official, to any of those.
16 Q. Isn't it at that fact that -- excuse me.
17 A. [Overlapping speakers]...
18 Q. Mr. Sacirbey, isn't it a fact that with regard to the Vance Owen
19 plan, there were discussions concerning the nature and the contours of
20 the boundaries?
21 A. Not international boundaries, only the internal delineation. In
22 fact, there was a notion whether it would be either 9 cantons or
23 12 cantons. What the boundaries, not borders, of those cantons might be,
24 and even what the political nature of those cantons might be, but not
25 international borders.
1 Q. With regard to private conversation, which I mentioned, you had
2 specific private conversations in which you were urged to trade, for
3 example, the enclaves in the eastern section for Sarajevo, were you not?
4 A. Yes, but again in the context of whether it was the Federation or
5 Republika Srpska, but both of those entities being in the context of the
6 international borders of Bosnia and Herzegovina.
7 Q. Now, with regard to the trade of the eastern enclaves for
9 A. I was approached, and again, I never initiated, and I would have,
10 and always did, reject that notion, those approaches came from
11 Carl Bildt.
12 Q. Stop for a minute, please. For purposes of the record, when you
13 say Carl Bildt, who are you referring to?
14 A. Carl Bildt is the current foreign minister of Sweden. At one
15 time he was in fact the prime minister of Sweden. During this tenure, I
16 believe he was, most of the time, the designated moderator of the
17 European Union. I use the word moderator or representative in the
18 context of the talks on the former Yugoslavia
19 Q. Apart from Carl Bildt, who else had the discussion with you with
20 regard to the trading of the eastern enclaves for Sarajevo?
21 MS. BOLTON: Sorry to interrupt, Your Honour.
22 JUDGE MOLOTO: Sorry, Mr. Sacirbey.
23 Yes, Madam Bolton
24 MS. BOLTON: Just again, with respect to the rules of
25 cross-examination, there was some discussion in examination-in-chief with
1 the witness of a request that the enclaves be traded after the fall of
2 Srebrenica, not specific, though, to Sarajevo, so terms of the scope of
3 cross-examination, unless it's certainly outside the scope of direct
4 examination, and then there's just simply the issue of relevance of this
5 line of questioning if it is outside the scope of direct examination.
6 JUDGE MOLOTO: Madam Bolton, if it was discussed, that there were
7 that kind of discussion and the Defence has a different understanding of
8 that discussion, surely it's up to them to put their understanding to the
9 witness. If their understanding is that that discussion took place in
10 the context of a trade-off of Sarajevo
11 the Prosecution, they must put their understanding to the witness,
12 shouldn't they? And the witness can just say, no, that was not so; or,
13 yes, it was so.
14 MS. BOLTON: Sorry, Your Honours. I'm actually not feeling too
15 well at the moment. If I could just have a second.
16 JUDGE MOLOTO: Oh, you're not. I'm sorry.
17 MS. BOLTON: No, I am sorry. My stomach is acting up, and I
18 wonder if I could just have maybe a 5-minute recess.
19 JUDGE MOLOTO: You may. Do you have Mr. Harmon taking over your
20 objections on your behalf?
21 MS. BOLTON: Well, I haven't spoken to him. I just want to go
22 take something to settle my stomach.
23 JUDGE MOLOTO: Just go, Madam. I don't know what we are going to
25 Mr. Harmon, do you want to take up that objection, or do you want
1 to stay? Do you want us to wait for Madam Bolton?
2 MR. HARMON: Your Honour, I would prefer waiting for Ms. Bolton
3 to return. She'll be back within two or three minutes.
4 JUDGE MOLOTO: I hope so. Sorry, Mr. --
5 MR. GUY-SMITH: That's perfectly all right. It seems the nature
6 of this examination. So where --
7 JUDGE MOLOTO: No comment.
8 This is a very peculiar situation. I think the time is a little
9 too long for us to be sitting here. At the same time I'm mindful of the
10 fact that we are one-sided, the one leg is missing completely. I was
11 going to suggest a short adjournment rather than sitting here. I'm sure
12 people can do much more productive work talking freely, not felling like
13 you're in court and preparing other things than just whispering around.
14 MR. GUY-SMITH: I would appreciate that. That seems like a
15 sensible course to me. We will be on stand-by or close about.
16 JUDGE MOLOTO: Thank you very much.
17 Madam Javier, you will be a witness to the Prosecution that we
18 talked nothing about the case.
19 Court adjourned.
20 --- Break taken at 2.51 p.m.
21 --- On resuming at 3.07 p.m.
22 JUDGE MOLOTO: Mr. Harmon, how is Madam Bolton? Is she
24 MR. HARMON: Your Honour, she is indisposed at the moment. If we
25 could take our normal break at 3:30
1 inform the Court, but I'm prepared to proceed in her absence.
2 JUDGE MOLOTO: Thank you very much. Story you down there. It
3 was an emergency, and I'm not quite sure whether we made you aware that
4 we were adjourning when we did adjourn. We are very sorry about that.
5 Mr. Harmon, Madam Bolton was in the middle of objecting when she
6 left. I don't know whether you want to pursue the objection or ...
7 MR. HARMON: No, sir. We will withdraw the objection.
8 JUDGE MOLOTO: Thank you very much.
9 Mr. Guy-Smith, you may proceed.
10 MR. GUY-SMITH:
11 Q. My last question had been ...
12 JUDGE MOLOTO: I hear it too.
13 MR. GUY-SMITH: I'm sorry. I'm having some background noise.
14 That was the reason I was --
15 JUDGE MOLOTO: That is a what I'm saying. I'm hearing, too, the
16 background -- and I think it's because of the connection to New York
17 MR. GUY-SMITH: Okay. I'll try to proceed with it -- I'll try to
18 proceed and see how it goes.
19 Q. My last question had been apart from Carl Bildt, who else had the
20 discussion with you with regard to the trading of the eastern enclaves
21 for Sarajevo
22 A. The most specific that I can be is the Dutch defence minister.
23 And it was very much in the context of the situation of the enclave
24 themselves, and he was also very clear that in fact he was being urged by
25 quote/unquote "his European colleagues" and US colleagues to press that
1 matter. The issue may have been raised in some negotiating process that
2 I'm not entirely privy to, but that's it.
3 Q. I'm only asking you things for the moment that you are either
4 privy to or aware of. With regard to the Dutch defence minister, who
5 were you referring to there? Was that Mr. Voorhof that you were
6 referring to?
7 A. Yes, and, again, I want to be very specific here because there
8 may be some confusion. I'm talking now about before the fall of
10 Q. Did you have discussions with Mr. Holbrooke concerning the issue
11 of exchanging Sarajevo
12 A. This only occurred after the fall of Srebrenica and in the
13 context of the Dayton Accords, which I believe I had described during
15 Q. Okay.
16 A. He, in fact, pressed us, urged us, you can use whichever term you
17 want, that in fact Srebrenica could not be retained in the Federation.
18 Q. And apart from Mr. Holbrooke, Mr. Bildt and Mr. Voorhof, are
19 there any other individuals who you had this specific conversation with?
20 And that, once again, is the trading of the eastern enclaves for
22 A. Again to be very precise, nothing from certainly before the fall
23 of Srebrenica until the fall of Srebrenica when it became obviously a
24 significant topic of the negotiating process through Dayton.
25 Q. Just for a moment since you mentioned here in your answer
1 Mr. Bildt. With regard to Mr. Bildt and Srebrenica, did you have -- you
2 had discussions with Mr. Bildt concerning Srebrenica prior to its fall,
3 did you not?
4 A. Yes, that is in fact the emphasis of what I think I had just
6 Q. Oh, I see. And if I'm not mistaken, it's your contention that
7 Mr. Bildt told you that he would not, and by he, I mean the
8 United Nations, would not defend Srebrenica from attack; correct?
9 A. That specific conversation actually occurred on the day that
10 Srebrenica was falling, that was being overrun.
11 Q. And when you say that specific conversation, the conversation
12 that you referring to is a conversation in which Mr. Bildt told you that
13 the United Nations would not defend Srebrenica; correct? That's your
14 position; right?
15 A. That's correct.
16 Q. Okay. And in that --
17 A. My position is that he said -- sorry, go ahead.
18 Q. And in that regard --
19 A. My position is that Mr. Bildt said at that time that he would not
20 depend Srebrenica, nor Zepa, no Gorazde; that's correct.
21 Q. With regard to that, you were -- it's your position that you were
22 calling for air-strikes and Mr. Bildt refused to allow for those
23 air-strikes to occur; correct?
24 A. I believe that's an oversimplification, but, in general, I can
25 accept that. Yes, I can accept that characterization.
1 Q. I take that it would be fair to say that you are not particularly
2 fond of Mr. Bildt's position with regard to this issue?
3 A. That is correct. Because I believe it contributed to the
4 consequences of the fall of Srebrenica.
5 Q. And with regard to, and now I'm going to move for a moment to
6 Mr. Holbrooke, with regard to the issue of territory - and now I'm
7 changing the conversation slightly from that of exchange to that of
8 obtaining territory - there came a time, and if I'm not mistaken, it was
9 in Zagreb, although I may be, and please help me if I'm wrong, where you
10 met with Mr. Holbrooke, and he encouraged you to take Prijedor
11 militarily; correct?
12 A. That is correct. It happened on more than one occasion, and in
13 fact, once involving President Izetbegovic.
14 Q. With regard to it happening on more than one occasion, could you
15 please tell us the dates that this occurred where Mr. Holbrooke
16 encouraged you to take Prijedor militarily?
17 MR. HARMON: Excuse me, Your Honour.
18 JUDGE MOLOTO: Yes, Mr. Harmon.
19 MR. HARMON: I'm going to object to the relevance of this line of
21 JUDGE MOLOTO: Mr. Guy-Smith.
22 MR. GUY-SMITH: Yes, the relevance of this line of questioning is
23 that it is part of the entire picture with regard to the information that
24 would necessarily have been, or could have necessarily been had by my
25 client and was one of the issues that needs to be considered in the
1 context of the entirety of the discussion over what he thought and what
2 he did. And if I might, I believe that the discussion between
3 Mr. Holbrooke and Mr. Sacirbey, as it relates to this particular issue
4 and as it's going to relate to other particular issues, is part of the
5 private diplomatic dialogue that we were discussing before.
6 And it's our contention that the diplomatic dialogue and the
7 resolutions that have been discussed with Mr. Sacirbey operate in what
8 I'll call a parallel universe. They co-exist, and they sometimes
9 converge with each other. And if there's going to be assumptions made
10 that General Perisic knew about a certain kind of evidence or a certain
11 kind of information, which we have thus far seen in the nature of
12 broadcast media and united resolutions, which were distributed through
13 the member states, then another legitimate discussion and assumption to
14 be made is that the parties to this discussion, including the member
15 states, the United Nations Security Council, and the countries who were
16 affected by this debate were kept informed about it.
17 The diplomatic debate that I'm referring to here is a diplomatic
18 debate that would necessarily affect all of the entities or nations in
19 the region including FRY. And the information is information that is
20 intelligence information, cables. We've actually seen some of the cable
21 information, Your Honour, in terms of the cables that were sent by
22 various Russian -- not Russian, excuse me, by various attaches or
23 diplomats concerning the events that, as they were transpiring, in which
24 it was noted whether or not General Perisic was on or was not on the
25 distribution list, intercepts, meetings.
1 And I think in the context of what we are dealing with right now,
2 it would be extremely misleading and wouldn't be the truth to suggest
3 that the kind of evidence we've seen thus far represents the entirety of
4 the diplomatic dialogue. The social or political and military reality at
5 the time, all of which are issues and all of which is information that
6 necessarily would go into the thought processes of all of the
7 participants, and in specific, into the thought process of
8 General Perisic to create the impression that the political military
9 leaders make decisions solely on the kind of evidence we've been
10 presented to -- or with by the Prosecution. And the media reports alone
11 I think is not only incorrect, but it's unreasonable and, indeed,
12 irrational. And this kind of information -- and by that I'm referring to
13 the information in which I think it's recognised. And I think if this
14 were to be developed with Mr. Sacirbey, he would agree, whether he would
15 readily agree or not, I don't know, but he would agree that the obtaining
16 of territory is one of the aspects that falls into the entire negotiation
18 I talked to him briefly about the -- and I'm still in that
19 conversation about the trade of Sarajevo
20 changing contours of the map, and, clearly, the issue of Prijedor is the
21 one of the issues that deals with the changing contours of the map.
22 JUDGE MOLOTO: Mr. Guy-Smith, one and a half pages of the screen
23 in response to an objection.
24 MR. GUY-SMITH: I am sorry.
25 JUDGE MOLOTO: Ends up not explaining your argument.
1 MR. GUY-SMITH: I'm trying to get the --
2 JUDGE MOLOTO: I don't want you to give me another long speech.
3 You know, Mr. Harmon said relevance, one word. And you can just say in
4 maybe three sentences how relevant it is. The more you explain, the more
5 you lose me. Looking at what you have just said, it seems to me that in
6 any case in this Tribunal, it would then be relevant to talk about
7 anything that took place from Slovenia
8 that becomes relevant because it's all in the context of this whole war
9 within the former Yugoslavia
10 MR. GUY-SMITH: Well, I'm not being that expansive. But I'm
11 dealing with a discrete time-period. The discrete time-period that I'm
12 dealing with in terms of the conflict and in terms of the period of time
13 in which my client is charged with behaviour that is deemed criminal
14 includes this particular time-period. It's in this particular
15 time-period, pre-Dayton, if there are events that occurring that can
16 affect his thinking process, and one of them would be the taking of --
17 the taking of territory in another area and how he may or may not respond
18 to that, then that's relevant.
19 JUDGE MOLOTO: My point precisely, that in fact, time-periods and
20 area, territory, as I say, from Slovenia
21 MR. GUY-SMITH: I'm not dealing with any of that, Your Honour.
22 What I'm talking about is -- [Overlapping speakers]...
23 JUDGE MOLOTO: No, I'm saying, looking at the logic of your
24 argument here, this is what comes to mind, and I -- for purposes of this
25 and purposes of progress, I'm going to disallow the objection. Just go
2 MR. GUY-SMITH:
3 Q. Yes, my question was: Could you tell us the dates that your
4 discussion occurred with Mr. Holbrooke in which he encouraged you to take
5 Prijedor militarily?
6 A. This was in the early fall of 1995, after the NATO air-strikes
7 had started and before, in fact, there was a cease-fire.
8 Q. Thank you. Apart from -- apart from those particular areas that
9 we've discussed which is at this point the trade of Sarajevo for the
10 enclaves and the taking of Prijedor, were you encouraged by Mr. Holbrooke
11 in the early fall of 1995 after the NATO air-strikes to engage in other
12 -- any other military actions?
13 MR. HARMON: Again, Your Honour, I'm going to object on the
14 relevance of a private conversation that took place between Mr. Sacirbey
15 and Mr. Holbrooke.
16 JUDGE MOLOTO: Where do we have it, Mr. Harmon, that it was a
17 private conversation?
18 MR. HARMON: The earlier testimony -- I'll find it in just a
19 minute, Your Honour. I'll find it, Your Honour, in just a minute.
20 MR. GUY-SMITH: Rather than take up the time, why don't I ask a
21 preparatory question. I'll honour my friend 's concern for the moment.
22 JUDGE MOLOTO: Fine, if you honour his concern, okay, go ahead.
23 MR. GUY-SMITH: I should say Mr. Harmon's concern, because I come
24 from another tradition.
25 Q. Were the conversations that -- the conversations that we were
1 just discussing, which is, apart from the taking of Prijedor,
2 conversations that were private as between you and Mr. Holbrooke?
3 A. At times they may have involved other officials.
4 Q. Okay. And when you say at times they may have involved other
5 officials, who would those other officials have been, if you recall?
6 A. Well, at least in one instance, I have referred to
7 President Izetbegovic being, obviously, the primarily participant in that
8 discussion. At other times that were other officials of what was then
9 the US
10 JUDGE MOLOTO: And what effect did the presence of those other
11 officials have on the discussions with respect to whether the discussions
12 were private or not?
13 MR. GUY-SMITH: Sorry, Your Honour, I'm not hearing you at all.
14 JUDGE MOLOTO: Really?
15 MR. GUY-SMITH: Not at all.
16 JUDGE MOLOTO: Can you hear me? Can you hear me in New York
17 They don't hear me either. Are you in New York.
18 THE REGISTRAR: [Via videolink] Your Honour, we can't hear you at
20 JUDGE MOLOTO: You can't hear me.
21 MR. HARMON: Your Honour, it doesn't appear that the microphone
22 -- oh, I see.
23 JUDGE MOLOTO: We can't hear one another even here. Don't worry.
24 Can you hear me, Mr. Guy-Smith?
25 THE REGISTRAR: [Via videolink] We can hear you now, Your Honours.
1 JUDGE MOLOTO: Can you hear me, Mr. Guy-Smith?
2 MR. GUY-SMITH: No, only if I take off my earphones can I hear
4 JUDGE MOLOTO: Do you want me to go on with your earphones off?
5 At least you don't need any interpretation from the English to your
7 MR. GUY-SMITH: Not yet. No, I'm fine.
8 JUDGE MOLOTO: You're fine.
9 I was saying, Mr. Sacirbey, what effect does the presence of
10 President Izetbegovic and other officials during these meetings have with
11 respect to the status of the meeting being either private or not private?
12 THE WITNESS: [Via videolink] Your Honour, I can never be certain
13 to what extent Mr. Holbrooke or others were speaking in the context of
14 the States they represented or expressing potentially just personal
15 views. That is the only reservation I have. Otherwise, the meetings
16 were, one would say, in private.
17 JUDGE MOLOTO: Even with the presence of other officials?
18 THE WITNESS: [Via videolink] That is correct.
19 JUDGE MOLOTO: Okay.
20 THE WITNESS: [Via videolink] They were not meetings that would
21 necessarily have a minute-taker.
22 JUDGE MOLOTO: Okay. Thank you.
23 Thank you, Mr. Guy-Smith.
24 MR. GUY-SMITH: Surely.
25 Q. You just indicated there was meetings that would not necessarily
1 have a minute-taker. Are you aware of -- well with regard to your
2 reactions, first of all, after you were involved in these private
3 meetings, did you have discussions with others concerning the nature of
4 those meetings? For example, with your --
5 A. Yes, I did, Mr. Guy-Smith.
6 Q. For example, your military officers in which you told them --
7 A. That is correct, Mr. Guy-Smith.
8 Q. And you told them something to the effect, did you not, that you
9 had had a conversation with American representatives, and they indicated
10 that they were -- they wished for you to --
11 A. Mr. Guy-Smith, now, I cannot hear anything. You have all of a
12 sudden gone completely off.
13 MR. GUY-SMITH: Okay. Could we try to reconnect or whatever we
14 do, whatever we do here. We are close to the break, so perhaps it could
15 be done during the break.
16 JUDGE MOLOTO: Okay, we'll take a break and come back at 4.00.
17 Court adjourned, while we reconnect.
18 --- Recess taken at 3.29 p.m.
19 --- On resuming at 4.01 p.m.
20 JUDGE MOLOTO: Mr. Guy-Smith.
21 THE REGISTRAR: [Via videolink] I apologise, Your Honours, before
22 you go on, we cannot hear anything that is happening.
23 JUDGE MOLOTO: You cannot hear anything? You don't hear? You
24 don't hear? Obviously we are disconnected. Perhaps might be cheaper for
25 the Chamber to go to New York
1 [Technical difficulties]
2 [The Chamber and registrar confer]
3 I suggest we wait so that when it comes on, we take a maximum
4 advantage of the time it works.
5 THE REGISTRAR: [Via videolink] Your Honours, can you hear us?
6 JUDGE MOLOTO: We can hear you now. And can you hear us? You
7 can't hear us? Can you hear us?
8 THE REGISTRAR: [Via videolink] Your Honours, we don't hear it.
9 Oh, yeah, now we can. Now we can.
10 JUDGE MOLOTO: Okay. We can hear you too. Thank you so much.
11 Mr. Guy-Smith.
12 MR. GUY-SMITH: Thank you.
13 Q. And you told members of your military that you had had
14 conversations with American representatives, and they had indicated that
15 they wished for you to take certain territory; correct?
16 A. I had a conversation with President Izetbegovic on this point;
17 that's correct.
18 Q. Apart from President Izetbegovic, did you have conversations with
19 anyone else concerning this particular matter, that being the suggestion
20 that you engage in military activities?
21 A. At some point in time with General Rasim Delic.
22 Q. And when you had the conversation with Rasim Delic, I take you
23 indicated to him the same thing that you told President Izetbegovic with
24 regard to the taking of Prijedor and other areas; correct?
25 THE REGISTRAR: [Via videolink] I apologise, Your Honours, we are
1 having technical difficulties again. Incoming video is frozen, and we
2 don't hear any sound.
3 JUDGE MOLOTO: I am sorry, Madam Registrar, I really don't know
4 what to do now. Are they gone?
5 MR. GUY-SMITH: I believe that Madam Registrar is going to be
6 calling Mr. Registrar in a moment. It looks like she's making a
7 telephone call.
8 JUDGE MOLOTO: You still can't hear us, Madam Registrar, out in
9 New York
10 MR. GUY-SMITH: I would reluctantly suggest that we take a break
11 and that the technicians on both sides of the ocean engage in whatever
12 technological discussions they can have or technological fix-its or
13 repairs or Scotch tape, or whatever else works so that we can proceed in
14 a fashion. It's been close to two hours, and I don't think I've been
15 ability to get more than five questions out at any one given point.
16 Although I may be exaggerating, I don't think I am.
17 JUDGE MOLOTO: What do you think, Mr. Harmon?
18 MR. HARMON: I share the view of Mr. Guy-Smith.
19 JUDGE MOLOTO: Okay. Then let's take a break. Now, they've
20 disappeared even from the screen. I just wanted to say to them we are
21 taking a break, if they can hear me, and if they are not going to hear
22 me, if I could see them, I would give them some sign language. Okay, we
23 can't see them, we are going to take a break. And will be called, when
24 we are called.
25 --- Break taken at 4.07 p.m.
1 --- On resuming at 4.30 p.m.
2 JUDGE MOLOTO: Let's hope technology works now.
3 Mr. Guy-Smith. Thank you.
4 MR. GUY-SMITH: Thank you, Your Honour. Being an eternal
5 optimist, I just want to make sure that I understand one thing. When are
6 we going to take the next break assuming for purposes of discussion that
7 we get that far?
8 JUDGE MOLOTO: The next break was supposed to be at quarter past
9 5.00. Let's carry on --
10 MR. GUY-SMITH: That's fine. Okay. Wonderful. That's
12 Q. We were last talking about your discussion with General Delic
13 concerning the taking of territory pursuant to the suggestion made by
14 Mr. Holbrooke and other, as I understood it, representatives of the
15 American government.
16 When did you have that conversation with General Delic?
17 A. Probably sometime subsequent to the conversations with
18 President Izetbegovic and myself, and Holbrooke at that time.
19 Q. Okay. And when you say sometime subsequent, obviously one of the
20 issues was, I take it, a question of whether or not there was a
21 perception internationally that your campaign to take these territories,
22 and specifically Prijedor, was tied into the NATO air-strikes. And you
23 had been informed by Mr. Holbrooke that that was something that they did
24 not want to have occur in the international eye; correct?
25 A. That is largely correct. I wouldn't have quite characterised it
1 that way, but that's largely correct.
2 Q. So part of the concern that Mr. Holbrooke discussed with you,
3 which you discussed with President Izetbegovic was the importance of it
4 seeming to the world that this was an independent action on the part of
5 the Bosnian-Herzegovinian government; correct?
6 A. I think, Mr. Guy-Smith, I would character -- [Overlapping
8 Q. Wait a minute. Mr. Harmon is is on his feet. Hold on.
9 MR. HARMON: Excuse me, Your Honour, again I have a relevance
10 objection to this line of questioning.
11 JUDGE MOLOTO: Mr. Guy-Smith.
12 MR. GUY-SMITH: Yes, Your Honour. Simply put, we are charged in
13 an indictment in which we have repeatedly objected to its temporal scope
14 and its geographic scope. We are, as a matter of fact, probably charged
15 in the largest indictment that has been charged at the Tribunal. Three
16 separate cases have been charged, three separate incidents. This
17 particular issue is an issue which is germane to our Defence; it's
18 germane to an examination by this Chamber of what was going on and what
19 information was available and what potentially was the thinking process
20 of our client. We have asked for there to be limitations, they have been
21 denied repeatedly. We are speaking about an issue that deals with the
22 discrete period of time that we are -- that we actually in fact have
23 concerns about, and it is certainly relevant to our Defence and we should
24 be entitled to develop it. We did not bring this indictment. We did not
25 bring these charges, and we cannot be placed in the situation where we
1 are continually foreclosed from developing evidence that would allow for
2 you people to make a determination of what is appropriate with regard to
3 this issue.
4 JUDGE MOLOTO: Mr. Guy-Smith, in one sentence, can you tell us
5 how, to what point in the case is this line of questioning relevant. You
6 know -- [overlapping speakers]... that's why I said, we might as well
7 talk about the entire former Yugoslavia
8 MR. GUY-SMITH: Well, quite frankly, in a certain sense, that's
9 what we have been charged with. Unfortunately, that's not our fault.
10 We've asked for that not to occur. But with regard --
11 JUDGE MOLOTO: Just in one sentence, tell us what point is it
13 MR. GUY-SMITH: Sure. It's relevant to issues concerning his
14 intent and his mens rea.
15 JUDGE MOLOTO: Do you have any response, Mr. Harmon?
16 MR. HARMON: Again, Your Honour, my objection stands. This is a
17 conversation with between Mr. Holbrooke and Mr. Izetbegovic. And what
18 the importance was to the world's perception, I don't see how that is
19 relevant to any issue that's before this Chamber and that is in the
21 JUDGE MOLOTO: Mr. Guy-Smith, I must rule you out of order at
22 this point. I am sorry.
23 MR. GUY-SMITH: Very well.
24 Q. Are the concerns that you discussed with Mr. Holbrooke concerns
25 that you discussed with General Delic in terms of the planning of taking
1 over these territories?
2 A. Such concerns were primarily to the consequences for all the
3 civilian population of Bosnia and Herzegovina. Frankly, I was not
4 concerned about global perception; I was concerned about the consequences
5 for all of the population, as well as the sovereignty and territorial
6 integrity of Bosnia-Herzegovina.
7 Q. So I take it you answer to my question, then, would be, no, you
8 did not discuss the concerns that have been voiced to you by
9 Mr. Holbrooke with your general?
10 A. No, I would not have discussed that point.
11 Q. Okay. Thank you.
12 I would like to move now for a moment into a definition and see
13 whether or not you agree or disagree with this definition. And that
14 refers to the definition of a safe area. The idea of a safe area or
15 sanctuary is an old concept in war where both sides, parties to a
16 conflict, agree they will not fight in an area to preserve the civilian
17 population in that area, and that would, therefore, be a safe area.
18 JUDGE MOLOTO: Question.
19 MR. GUY-SMITH:
20 Q. Do you agree with that?
21 A. If you are asking me do I understand that to be a definition of a
22 UN safe area, I must say that I'm not at all certain. I'm not at all
23 certain that there was ever an absolute consensus regarding that
25 Q. Okay. When you say that there was not a consensus regarding that
1 definition, would you agree that in order for an area to be considered to
2 be a safe area with the concomitant protections that such an area would
3 have, that it had to be demilitarised?
4 A. As I believe you understand, Mr. Guy-Smith, from the direct
5 testimony, the declaration of Srebrenica as a safe area was actually not
6 conditional upon it being demilitarised. There was only a subsequent
7 arrangement -- [overlapping speakers]...
8 Q. I'm sorry. Excuse me, sir, excuse me, sir. We are doing it
9 again. You are not answering my general question. I didn't ask you
10 anything about Srebrenica at this point. I asked you about the concept
11 of a safe area.
12 A. And the answer is I would not necessarily agree. I could, but
13 not necessarily.
14 Q. All right. Would it be fair to say that with regard to your
15 definition of a safe area that your definition takes into account
16 particular geographic territories of which you were concerned about
17 during your tenure as ambassador for Bosnia-Herzegovina?
18 A. It took into consideration geographic delineations and also what
19 commitment was made it to actually defend those territories by those that
20 had declared them safe areas.
21 Q. When you say what commitment was made by those who had declared
22 them safe areas, I take it that you are referring to two main
23 Security Council resolutions; correct?
24 A. I'm referring of course to UN as well as NATO commitments and the
25 actual willingness or capacity to enforce those; that's correct.
1 Q. All right. With regard to the issue of UN, I take it that in
2 that sense you are referring to Resolutions 824 and 836; correct?
3 A. There were several other resolutions, there was a series of them,
4 but those two would be included.
5 Q. Okay. And would you agree that those resolutions had the effect
6 of defining Gorazde, Sarajevo
7 Maglaj as safe areas?
8 A. Yes, I believe -- I'm not sure about Maglaj that you just
9 included, that was one of the discussions once.
10 Q. Maglaj was a discussion point. That is correct. You're right.
11 Now, with regard -- with regard to those areas that were
12 designated as safe areas, it was understood by UNPROFOR, was it not, that
13 those areas were to be demilitarised?
14 A. I believe -- again I have to qualify that the word demilitarised
15 was used, and at the same time, in fact, it was frequently taken into
16 consideration that at least certain defence forces would in fact be in
17 those areas.
18 Q. I'm sorry --
19 A. In other words, let's say for Sarajevo, there was never a
20 requirement that either the military forces of the Bosnian government or
21 even their weapons would in fact be removed from the safe area. They
22 were, as you will recall in Sarajevo
23 where heavy weapons were gathered, and they in fact, I think the same
24 model was used in Srebrenica and the models varied a little from safe
25 area to safe area.
1 Q. With regard to Srebrenica, isn't it true that there was a
2 demilitarisation agreement signed for that specific area?
3 A. That is true. There was one signed. That is true.
4 Q. And when was that signed?
5 A. That was signed exactly around the same time that the resolution
6 on Srebrenica being declared a safe area was adopted, and it was actually
7 signed independent of that resolution, as I understand it.
8 Q. Who were the signatories to that agreement, if you recall?
9 A. I can recall only that of course the UN forces on the ground,
10 along with the army of the Republic of Bosnia-Herzegovina
11 Serbian forces besieging the area.
12 Q. And the Serbian forces besieging the area, as you've defined
13 them, were at that time, if I'm not mistaken, led by Ratko Mladic; true?
14 A. That is correct.
15 Q. And do you recall that it was Ratko Mladic who in fact signed
16 this particular agreement?
17 A. Frankly, I don't, but it could very well have been.
18 Q. There was a point of contention after this agreement was signed
19 by virtue of the fact that Srebrenica was not demilitarised, wasn't
20 there? Irrespective of whether --
21 A. There was a point of discussion on this.
22 Q. This was a point of contention with regard to whether or not it
23 should be defined as a safe area because in fact there was a standing
24 military presence in that particular enclave; true? Irrespective of --
25 A. There was not an issue as to --
1 Q. Irrespective of its strength?
2 A. Yeah, I believe your question has several assumptions made into
3 it, that's why I'm answering it. I don't think there was a discussion as
4 to whether or not Srebrenica should be a safe area. There was a
5 discussion to what extent in fact it had been demilitarised to the extent
6 that either the resolution or any other methodology required.
7 Q. Well, with regard to the resolutions at hand, and by that I'm
8 referring to 824 and 836, it was very clear what the limitations were of
9 the UNPROFOR peacekeeping force in that area; true? And by that I
10 mean --
11 A. Actually, I don't believe so.
12 Q. By that I mean the limitations were -- they could protect the
13 area; they could not defend the area. The best that they could do was to
14 deter attacks against by their presence, which was not a war-fighting
15 mission, but, rather, is a peacekeeping mission; correct?
16 A. I believe that -- let me rephrase this. The mandate of UNPROFOR
17 was something that was dynamic. And it's one of the issue that gave me,
18 frankly, pause. Because at least in my role as an ambassador of Bosnia
19 and Herzegovina
20 given there was one to defend and protect the area and the population in
22 Q. Understood. I've understood what you've said, and I've
23 understood you've also said that it was dynamic. And with regard to the
24 issue of it being dynamic, the language that was utilized was "to use all
25 means possible to deter attacks against;" correct?
1 A. That is correct. And that is now language that has precedent,
2 and in the past has been used in very broad terms, for example, for the
3 liberation of Kuwait
4 Q. I appreciate that. But I think if we have a discussion
5 concerning Kuwait
6 Chamber. So I'm not going to have a discussion with you concerning
8 were referring to, to use all means possible to deter attacks against,
9 that language depended on the cooperation of both parties to the conflict
10 here, not to either attack out or attack in because United Nations --
11 A. First of all, it depends --
12 Q. Because the United Nations forces, themselves, were not in a
13 military position to defend or protect; correct? And I'm dealing with
14 both attacking out as well as attacking in.
15 A. I believe first of all, Mr. Guy-Smith, they were supposed to be
16 in a position to defend and protect. And in part, of course, this was
17 the relationship with NATO that was in fact interwoven eventually. Now,
18 the reason I use dynamic is because in fact there were numerous
19 discussions that came about as to what in fact should be the nature of
20 that demilitarised zone, and of course what are in fact the measures that
21 might trigger response in protection of the safe area, and the what was
22 then also defined as the NATO protected zone.
23 Q. Okay. I want to go back here for a moment to deal with the
24 agreement for demilitarisation of Srebrenica, and that's P2462, if we can
25 please have that up on the screen. And I need to have page 15 which is
1 annex two of that document.
2 It's going to be a document that you are going to find -- we have
3 to put it up on the screen for you, too, sir. So this will be an e-court
4 document for you.
5 A. Fair enough.
6 Q. First of all, can you see the document? You seem to be
7 scrunching your eyes. So do you need to have it bigger?
8 A. Yeah, we do need to bigger, but we do have it in front of us.
9 Q. Okay.
10 A. Just a touch bigger.
11 Q. I think you might find it at 15K of the Prosecution binder, if
12 you have that binder available to you. Yes, here. It's your binder; we
13 don't have a binder.
14 A. Right.
15 Q. 1993.
16 A. I can also read it, it's fine. I can read it now off the screen.
17 THE REGISTRAR: [Via videolink] Can counsel please repeat the page
18 number again.
19 MR. GUY-SMITH: Sure. It's page 15. And I believe that it's in
20 the Prosecution binder. It's tab 15K for the year 1993.
21 Madam Registrar, it might be in either 15F or 15K, but I'm happy
22 to work off the screen, whatever makes your life easier. I'm just trying
23 to make your life a bit easier.
24 THE WITNESS: [Via videolink] Mr. Guy-Smith, I can read it off the
25 screen now, so you can proceed if you like.
1 MR. GUY-SMITH: Very well.
2 Q. First of all, are you familiar with the individuals who are
3 mentioned in the very first prefatory paragraph of the agreement for
4 demilitarisation of Srebrenica, those being General Mladic,
5 General Halilovic, and Lieutenant General Wahlgren representing UNPROFOR?
6 JUDGE MOLOTO: Sorry, Mr. Guy-Smith. Our screen doesn't show
7 those names. Can we please be shown that page with Mladic.
8 MR. GUY-SMITH: Sorry, it's -- sure. I'm sorry, Your Honour. I
9 thought everybody was on the same page. Apparently not. That's 15 of
10 19, page 15 of 19.
11 Is that of assistance, Mr. Registrar?
12 THE WITNESS: [Via videolink] I have the -- in front of me,
13 Mr. Guy-Smith. What I thought was on the screen, but I'm not sure I know
14 which section you are referring to.
15 MR. GUY-SMITH:
16 Q. Do you see where it says Annex 2 at the very top of the page?
17 Agreement for demilitarisation of --
18 A. No, I don't think so. No, I do not. No, I do not. I don't have
19 that page in front of me that's on the screen now.
20 MR. GUY-SMITH: Okay. If we could have Mr. Registrar transmit
21 that page electronically across the ocean so that Mr. Sacirbey is looking
22 at the same document that we are looking at.
23 Q. It's the date of the -- the date of the document is 30 April
24 1993. It's the report of the Security Council mission established
25 pursuant to Resolution 819 (1993). And we are referring to 15 of 19
2 A. I see Annex 2.
3 Q. Good?
4 A. And I can, with some difficulty, read the language of that. If
5 that could be magnified just a little bit, I think I'll have an easier
7 Q. Can you see it now?
8 A. Thank you. Now it just needs to be clarified. I just need to
9 have it focused. Yes, I can read it now.
10 Q. And my question to you, sir, is do you recognise the individuals
11 who are mentioned as being present at this meeting?
12 A. Yes, I do.
13 Q. And could you tell us who Lieutenant Wahlgren was, in your
15 A. I knew him as one of the UN commanders. I don't remember his
16 exact position, the hierarchy. He was not the commander, but he was one
17 of them.
18 Q. Now, with regard to this particular agreement, as I understand
19 it, I'm now looking at the first numbered paragraph. Indicates that:
20 "A total cease-fire in the Srebrenica area effective from 0159 on
21 18 April 1993
22 confrontation including supporting artillery and rocket fire."
23 Do you see that?
24 A. Yes, I do.
25 Q. And then I'm going to move to paragraph 4 in which it indicates
2 "The demilitarisation of Srebrenica will be complete within 72
3 hours of the arrival of the UNPROFOR company in Srebrenica with a
4 designated time of 1100 hours, 18 April 1993."
5 With a caveat of course that if UNPROFOR arrives at a later time,
6 this will be changed. And I think it would be fair to interpret that
7 meaning the 72-hour period would be changed. It would be conditioned
8 upon the arrival of UNPROFOR to the area.
9 A. Yes, I see your reading.
10 Q. Now, with regard to the language that's contained herein, that
11 being the demilitarisation, do you interpret that to mean something other
12 than getting rid of the weapons of war in that area?
13 A. First of all, I think you will recall, this is not an agreement
14 with which I worked with, nor any other representative in the
15 Security Council.
16 Q. Not my question, sir. Not -- excuse me.
17 A. Second of all -- [Overlapping speakers]...
18 Q. Mr. Sacirbey, you are doing it again. And it really does not
19 behoove you to do this.
20 With regard to the language that is contained herein, that being
21 demilitarisation, do you interpret that to mean something other than
22 getting rid of the weapons of war in that area, yes or no? And
23 thereafter you can explain.
24 A. Yes. At the same time there was never enforcement, as I
25 understand it, even of light weapons, that is, weapons that were carried
1 on the side by the defenders or otherwise.
2 Q. Do you agree that there were Bosnian forces in Srebrenica who
3 went out of Srebrenica on missions, and by missions I mean military
5 A. Certainly if that was the case, I was not aware of it at the
6 time. Now, clearly that's been a discussion point.
7 Q. And when you say clearly that's been a discussion point, you mean
8 clearly that's been a discussion point in the conversation that you and I
9 are having right now today, or clearly that was a discussion point
10 sometime in your history as an ambassador for Bosnia-Herzegovina?
11 A. First of all, there have been other events proceedings before the
12 Tribunals that have discussed that point.
13 And second of all, yes, it has been also a point of discussion
14 during my tenure as ambassador.
15 Q. And with regard to this issue, the issue of demilitarisation of
16 Srebrenica is one of the -- is one of the areas where you had points of
17 contention with none other than, I believe it was General Rose; correct?
18 A. I'm trying to recall the specific point that you are addressing.
19 Would you care to be more specific on that, or are you expecting a broad
21 Q. Well, at the moment I'm asking for a broad answer, if you are
22 able to give us one.
23 A. Yes, the point of issue always was that safe area included not
24 only the defence of protection but also enabling humanitarian supplies to
25 reach it, And in fact this safe area would not be strangled. The
1 definition of what weapons would be allowed, I believe over time, over
2 time became rather standard, which was heavy weapons. And as I
3 understand it in Srebrenica all the heavy weapons in fact were taken into
4 holding areas by the United Nations forces.
5 Q. One of the things that you seem to mention throughout your
6 testimony, which actually makes, I think, a great deal of sense, is you
7 talk about situations being dynamic and things changing over time;
9 A. That is correct.
10 Q. And as a matter of fact, that is a natural consequence of
11 conflict; true?
12 A. I would prefer not to say natural, but unfortunately I think it
14 Q. I would prefer not to say it either, but since we still have
15 failed to outlaw war, I think it's something we that need to recognise.
16 With regard to the issue of the dynamic aspect of the conflict,
17 would you agree that in your diplomatic capacity, you were constantly
18 confronted with in having to deal with an ever-changing situation on the
19 ground militarily?
20 A. That is correct.
21 Q. There's nothing particularly --
22 A. Unfortunately, I can --
23 Q. Go ahead.
24 A. Unfortunately, I can add that sometimes I thought beside what was
25 happening on the ground, there was a cynicism that allowed facts to be
1 created on the grounds in order to somehow facilitate some of the
2 solutions offered by the mediators. I think there was a lot of cynicism
3 -- all of this.
4 Q. And when you say there was a lot of cyncism, the cyncism that you
5 are referring to, as I understand your answer, encompassed the mediators.
6 And who would those be?
7 A. I would certainly not leave Belgrade out of this -- but you are
8 right. I include here also some of the mediators that were are involved.
9 And, unfortunately, I believe it did not help eventually bring about a
10 solution that was consistent with international legality and erasing the
11 consequences of aggression and genocide. That is correct.
12 Q. When you refer to the mediators, you are discussing such people
13 as we mentioned here before as Mr. Bildt and Mr. Holbrooke; correct?
14 Those are the individuals that you are discussing with with regard to the
16 A. That is correct, I've never hidden that term. That is correct,
17 I've never hidden that term. I'm on the record on that.
18 Q. Would you -- let me ask you this: Are you familiar with the term
19 as it exists for negotiations between nations of what is called a
20 normalization agreement or normalisation process?
21 A. I am.
22 Q. I'd like to say something to you and see whether you agree or
23 disagree with the following: In situations where fighting will continue
24 or threatens to resume unless agreement is reached, public opinion and
25 other domestic forces may exert considerable pressures on the negotiators
1 to agree. Do you agree with that?
2 A. I understand the point. I'm not sure why I would agree or
3 disagree with it now, though. But I understand the point. It's a
4 relevant point.
5 Q. And in terms of it being a relevant point, it's clearly one of
6 the things that you take into account -- oh, I'm sorry, that you took
7 into account during the time that you were a diplomat and your tenure at
8 the United Nations; right?
9 A. That is correct. I think we -- besides reacting, we also have
10 the obligation to initiate, obviously, positive dynamics in that context.
11 Q. With regard to what you've just said, I think it would be fair to
12 say, would it not, that there are often important asymmetries in the
13 susceptibility of the various negotiators to such pressures; true?
14 A. That is correct.
15 Q. And as a matter of fact, one of the things that you did, and I
16 think quite effectively, was that you created a plan that allowed for
17 pressures to exist to influence public opinion. And I'm not saying this
18 in a critical way whatsoever.
19 A. If it's a compliment, I'll taking it. But I think you can best
20 make the assessment yourself and so can the court.
21 Q. Okay. Now, apart from the issue of the pressures for agreement,
22 would you agree that negotiations for the purpose of a normalisation are
23 strongly influenced by what I would call the instability of the, and I
24 put this in quotes, abnormal situation they are supposed to settle, for
25 example, a war?
1 A. One of the problems that I had with your line of reasoning here
2 is that Belgrade
3 in this plight.
4 Q. Once again, once again, Mr. Sacirbey -- once again, Mr. Sacirbey,
5 I didn't mention Belgrade
6 And I know you've lived your life going there, but that's not the
7 question I'm asking you. I'm asking you a different question at this
9 A. Please go ahead, I maybe misunderstood it then.
10 Q. The negotiations for the purpose of normalisation are strongly
11 influenced by the instability of the abnormal situation they are supposed
12 to settle; correct?
13 A. That may be the case.
14 Q. Okay. Would you agree that if fighting continues while
15 negotiations are prolonged, one side may gain, through force, what it
16 failed to gain through bargaining?
17 A. That may in fact be the case, and that's where I think the
18 cynicism can come in.
19 Q. All right. And with regard to the cynicism, that, for example,
20 would be part and parcel the discussion that we were having as it related
21 to Prijedor; right?
22 A. If in fact the idea of fighting was to create facts on the ground
23 that would be forced upon the parties in negotiations, then I'm not sure
24 he see the purpose of the death of the civilians and soldiers and the
25 suffering that might be inflicted there --
1 Q. I understand -- Mr. Sacirbey, Mr. Sacirbey, Mr. Sacirbey, please,
2 try to answer the question.
3 A. I think I did.
4 MR. HARMON: Your Honour --
5 JUDGE MOLOTO: Yes, Mr. Harmon.
6 MR. HARMON: Your Honour, I see that the answer that was given by
7 Mr. Sacirbey was cut off. He did give a complete answer, and it was --
8 you can see at line 11 page 42, it is incomplete. I think for the
9 purposes of the record, I think it should be complete.
10 MR. GUY-SMITH: I think that this is the continued problem with
11 Mr. Sacirbey, is that he does not like to answer the question posed, but,
12 rather, wishes to answer the question as most politicians and diplomats
13 do, that they believe they feel like answering. And we are not having a
14 diplomatic debate here. We are in a court of law.
15 MR. HARMON: Your Honour, putting aside that observation, my
16 observation is much more limited. There was a complete answer given; the
17 record is now incomplete.
18 JUDGE MOLOTO: Let me just see. Are you saying, Mr. Harmon, that
19 you just want that sentence complete?
20 MR. HARMON: Yes, sir.
21 JUDGE MOLOTO: Okay. Mr. Guy-Smith, obviously, Mr. Harmon just
22 wants that sentence complete to get a complete answer there.
23 MR. GUY-SMITH: Well, I don't believe that the answer given is -
24 and now we are in that world that we've been in before - is relevant to
25 the question asked. And if he is not going to answer the questions that
1 are propounded to him, then he should be foreclosed from putting things
2 on the record that are inappropriate. And since I'm in a different
3 position than I was before, I will not allow for the witness to go off on
4 a lark of his own. So from that standpoint, I believe the answer as it
5 stands is fine.
6 JUDGE MOLOTO: I'm not quite sure, Mr. Harmon, to understand how
7 that answer answers the question immediately above it.
8 MR. HARMON: Your Honour, I heard a complete answer. What is
9 missing from the record is the complete answer. Whether it's relevant
10 and responsive to the question that Mr. Guy-Smith asked, I don't know.
11 All I'm asking for is that the complete answer be incorporated into the
12 record. Obviously if it's not responsive or irrelevant, the Court can
13 take that into consideration. Nothing more than that point.
14 MR. GUY-SMITH: I think Mr. Harmon knows better, and he is
15 playing games with the record. Mr. Harmon knows that when a witness
16 doesn't answer a question, that's something that does not appropriately
17 belong on the record. Now, he may well wish to have it in the record
18 because of its emotional contents, but its emotional content is not an
19 appropriate purpose.
20 And to claim, as he does right now, the innocence of desiring a
21 complete answer, I believe is somewhat disingenuous, considering that it
22 does not answer the question propounded.
23 JUDGE MOLOTO: But I thought I heard something which -- because
24 you both spoke at the same time, it just got drowned. I don't know what
25 he said, and I'm sure that's why the stenographer also could not get it.
1 But I see Mr. Harmon, also that the reason that answer is incomplete is
2 because Mr. Guy-Smith was stopping him from completing it. It's not as
3 if he was being -- he was mistakenly cut off. It's just that
4 Mr. Guy-Smith didn't want to hear that answer.
5 MR. HARMON: Perhaps Mr. Guy-Smith didn't want to hear the
6 answer, but there was an answer that has been given. Mr. Guy-Smith may
7 not like the answer, Your Honours may not like the answer, I may not like
8 the answer, but the record, there was an answer.
9 JUDGE MOLOTO: After the word suffering what was the rest of your
11 THE WITNESS: [Via videolink] Your Honour, I believe you are
12 speaking --
13 JUDGE MOLOTO: Yes, I am speaking to you, and I don't hear you
15 THE WITNESS: [Via videolink] Okay. Do you hear me now, please?
16 JUDGE MOLOTO: Yeah, now I hear you.
17 THE WITNESS: [Via videolink] Okay, Your Honour. I must admit
18 that was not a practiced comment or speech I made, so I will try to
19 replicate it the best that I can. And my comment was I believe that was
20 one of the problems that I had with cynicism in this context because
21 innocent lives of civilian soldiers and suffering were inflicted through
22 military means that otherwise then should have been achieved through
23 diplomatic means directly without all that unnecessary loss.
24 JUDGE MOLOTO: That answer goes far beyond what we had heard
1 MR. GUY-SMITH: That's correct, Your Honour. And it doesn't deal
2 with the issue that had been raised which was the issue of Prijedor,
3 which was specifically what the question was about.
4 JUDGE MOLOTO: And I see "motor accidents" in that answer. I'm
5 not quite sure we are talking about "motor accidents."
6 MR. GUY-SMITH: Well, at times I'm wondering whether or not it's
7 an attempt to simplify the case to the lowest common denominator.
8 JUDGE MOLOTO: Okay, that's fine.
9 Proceed Mr. Guy-Smith, before we lose contact.
10 MR. GUY-SMITH: Surely.
11 Q. Another aspect once again with regard to the issue of the
12 instability of the abnormal situation is that it could well shake one's
13 opponent's confidence in his ability to defend his military position and
14 make him anxious to reach an agreement; correct?
15 A. In which context are we speaking now, Mr. Guy-Smith?
16 Q. We are speaking in the context of diplomacy and war.
17 A. I would prefer to think I engaged with diplomacy, and I think you
18 are now going into areas that I certainly would not want to always
19 associate myself with, which is somehow --
20 Q. Go ahead.
21 A. No, I'm saying I believe you are suggesting that as part of a
22 diplomatic effort, there is an ongoing military effort that needs to be
23 inflicted or carried out. And I'm not sure I would agree with that as
24 being necessary.
25 Q. Okay, I understand that, and I would agree with you that it's not
1 necessarily necessary. But when dealing with an unstable situation such
2 as a conflict, issues concerning diplomacy and war come to the front.
3 And I believe this would be an appropriate time.
4 JUDGE MOLOTO: I had suggested we try to take advantage -- we
5 really reconvened at half past 4.00, so we could quite easily go to
6 quarter to 6.00 and take another break. Because, otherwise, we are going
7 to lose connection, unless you really insist on a break.
8 MR. GUY-SMITH: No, I don't really insist on a break. If I have
9 an opportunity to ask some questions and further the examination, I'm
10 somewhat of a content human being.
11 Q. Now, with regard to your diplomatic understandings, I'm going to
12 ask you another general question, as to see whether you agree or disagree
13 with this issue, which is, where there have been temporary suspension of
14 fighting, the threat of resumption of hostilities becomes less effective
15 for bargaining purposes, unless they are supported by existing military
16 capabilities or preparations that make a new offensive both likely and
17 dangerous to the opponent.
18 A. Again, excluding my own personal thinking, that may very well be
19 the case.
20 Q. Okay. When you say excluding your own personal thinking, if I'm
21 understanding your testimony, you are desirous to divorce yourself from
22 the inclusion of considerations about waging war in your diplomatic
23 efforts; correct?
24 A. No, that's not actually correct. I think that there is a
25 different line which I'm drawing.
1 Q. Okay. In your capacity as an ambassador, you took into account
2 the situation on the ground, you've told us; correct?
3 A. That is correct.
4 Q. You had available to you a number of differing military options
5 that would be discussed --
6 A. That is correct.
7 Q. -- through your diplomatic efforts; right?
8 A. That probably is correct.
9 Q. When you say it's probably correct, it is correct, isn't it?
10 A. Again you are saying discussed in my diplomatic capacity. I'm
11 not sure exactly who I'm discussing it with. If you are suggesting the
12 discussion that was had, for example, with Ambassador Holbrooke, that may
13 be an example of that.
14 Q. Okay, we need to be careful with your language, because when you
15 say "may," it becomes qualified, and we are not sure what you are saying
16 is that that is a possibility, or what you are saying is that is
17 something that occurred during your discussions with, for example,
18 Ambassador Holbrooke. So when you use the word --
19 A. I do not -- I do not mean to use it as a qualified. When I have
20 used it in the past, I believe during my testimony, I have frequently
21 referred to as to what issues could have been considered as part of any
23 Q. Okay.
24 A. So in other words, at any point in time there may have been
25 multiple considerations.
1 Q. And to put it in the specific terms that we are dealing with
2 right now, the topic of varying and differing military options including,
3 for example, NATO air-strikes, is one of the topics that you discussed
4 with Holbrooke; correct?
5 A. That is correct.
6 Q. Bildt; correct?
7 A. At least to some extent, that's correct.
8 Q. You discussed this matter with the defence minister for the
10 A. To some extent, yes.
11 Q. You discussed this matter with Madeleine Albright; correct?
12 A. That is correct.
13 Q. General Rose; true?
14 A. That would be a different, probably, context, but yes.
15 Q. When you that would probably be a different context, we are
16 talking about a different point in time; right?
17 A. Particularly a different point in time and in the scope of
18 General Rose's responsibility to protect and defend the civilian
19 population, including the safe areas.
20 Q. And you took, as a matter of fact, took issue with General Rose's
21 behaviour and decisions in that regard, did you not? And we'll be
22 talking about a later, but just for the moment just to --
23 A. In some --
24 Q. I missed that.
25 A. Mr. Guy-Smith, in some instances I did, that's correct.
1 Q. Thank you. I take it that you also discussed the matter of
2 military options with Mr. Akashi, did you not?
3 A. Yes, at least on a couple of occasions; that's correct.
4 Q. And for purposes of the record, could you please identify for the
5 Chamber who Mr. Akashi is?
6 A. Mr. Akashi was, I cannot remember his exact starting point, but
7 he was the civilian head of UNPROFOR, that is, the United Nations forces
8 in the region, that is, as they were defined by the UN mandate in the
9 region, not just for Bosnia and Herzegovina.
10 Q. Thank you. I want to go back to the issue of the safe areas for
11 a moment, if I could, and I'm going to ask you since you mentioned that
12 you had had -- that you knew who Mr. Wahlgren was, would you agree with a
13 statement that he made concerning the safe areas? And I'm referring now
14 to 1D00-2536, page 2557. And for purposes of everybody's -- it's tab 55.
15 JUDGE MOLOTO: [Microphone not activated]... 1D ...
16 MR. GUY-SMITH: 00 -- I'm referring to page 2557. The document
17 starts at 2536. It's a document entitled "Responsibility of command:
18 How UN and NATO commanders influenced air power over Bosnia," by
19 Mark A. Bucknam, colonel of the United States Air Force.
20 THE WITNESS: [Via videolink] I am not sure I'm looking at the
21 right document, but I have something in front of me. Please go ahead.
22 JUDGE MOLOTO: You better make sure you have got the right
24 THE WITNESS: [Via videolink] I have page 78. And if you read a
25 few passages, I'll be able to confirm that, Mr. Guy-Smith. I think
1 that's what I'm suggesting. If you read a few passages, I can confirm
2 that I have the right document.
3 MR. GUY-SMITH:
4 Q. Sure, if you could take a look at the last paragraph: According
5 to Michael Williams, a former director of information and senior UNPROFOR
6 spokesman who has written about the UN's troubled political military
7 relations; Generals Wahlgren, who I think is the gentleman that who you
8 were referring to was present during the demilitarisation agreement of
9 Srebrenica, and Morillon. Do you know who Morillon is?
10 A. Yes, I do.
11 Q. Okay. Who is he?
12 A. He is a French nationality. And the UN commander on the ground
13 during the critical point when Srebrenica was declared a safe area. He
14 actually, himself, travelled at that time into Srebrenica when it was
15 under its most severe attack.
16 Q. Thank you.
17 JUDGE MOLOTO: Sorry, Mr. Guy-Smith. You have left us behind.
18 MR. GUY-SMITH: I certainly didn't mean to, Your Honour.
19 JUDGE MOLOTO: We've got to paragraphs 1 to 5 of this document.
20 That's all we see. I don't know what the heading is. It's Annex 2
21 agreement for the demilitarisation of Srebrenica. I thought this was a
22 previous document.
23 MR. GUY-SMITH: No, no. We are in a different document.
24 1D00-2536 is where the document begins.
25 JUDGE MOLOTO: 2536.
1 MR. GUY-SMITH: Yes.
2 JUDGE MOLOTO: But you are at page 2557.
3 MR. GUY-SMITH: I'm at page 2557, yes, Your Honour.
4 JUDGE MOLOTO: Yeah, if you can go to page 2557.
5 MR. GUY-SMITH: If we could scroll down, and I believe that we
6 will all be together now. I just asked you who Morillon was.
7 "Had little idea how to proceed" with the implementation of the
8 safe areas resolutions. That's something that we were discussing, I
9 think, in slight slightly a different context when we were talking about
10 the differences of opinion with regard to the definition of safe area.
11 A. I agree with that.
12 THE INTERPRETER: Please slow down for the interpreters.
13 MR. GUY-SMITH:
14 Q. "Honig and Both have shown that on 5 June, the day before the
15 Security Council authorised enforcement of the safe areas, General
16 Wahlgren prophetically warned UN political authorities in New York
17 "If one allowed no controls of the military or paramilitary units
18 of the Bosnian government, one would create a scenario which would
19 encourage the use of the safe areas as havens where forces could refit,
20 rearm, train, and prepare for further military operations ."
21 With regard to this particular warning, as it relates to having
22 been made to UN political authorities in New York, was General Wahlgren's
23 warning, indeed prophetic, a topic of discussion that you were party to?
24 A. This was one of the issues that gave rise to concerns about safe
25 areas. Most importantly, obviously was the issue that I raised before,
1 of enforcement and what in fact was being defended.
2 Q. With regard to General Wahlgren's concern about military or
3 paramilitary units of the Bosnian government being involved and present
4 in a safe area, were you party to those conversations? And by party to
5 those conversations, I'm referring to those conversations of the
6 United Nations.
7 A. Yes, I was.
8 Q. Did you at that time take the position that the safe areas should
9 not be demilitarised, because in your opinion --
10 A. That's correct.
11 Q. -- you were entitled to defend them under your analysis of, I
12 believe it is, Chapter 51?
13 A. That is correct.
14 Q. Okay. I continue:
15 "Moreover, after 836 was issued, General Wahlgren worried that
16 the safe area's concept jeopardized the impartiality of his forces in
18 enforce its one-sided restrictions."
19 Was that part of the conversation that you had, the concern of
20 General Wahlgren in this regard?
21 A. Yes, it was.
22 Q. And what was the position that you took?
23 A. Our position was that, number one, the whole notion of safe areas
24 obviously left a very big hole in the rest of the country of whether the
25 rest of the country was a non-safe area, and in effect allowed for
1 civilians to be actively exposed, not only to military action, but to
2 deprivation of the necessities of life including food, water, and
4 Number two, we were never, at that time when this was written,
5 given obviously the necessary assurances of what measures would be used
6 to protect that civil population, that territory. So of course, we were
7 always trying to get clarification and in fact later commitment regarding
8 the defence of those safe areas. And, again, to use your word, it was
9 prophetic because in the end, Srebrenica in fact was not defended, even
10 though the commitment was made that it would be defended.
11 Q. When you say it was not defended, it was not defended, as far as
12 you are concerned, by United Nations forces who had a mandate to defend
13 it; correct?
14 A. Not by the UN forces and not by the NATO forces, which in fact
15 were to be called upon if the area was under attack.
16 Q. I understand your position.
17 MR. GUY-SMITH: If I could have Defendant's -- these particular
18 pages admitted as defendant's next in order, I'd appreciate it, starting
19 with 1D00-2536, which is a face-page, so there's reference. And then
20 subsequent pages, those being 2557, and 2558.
21 MR. HARMON: No objection.
22 JUDGE MOLOTO: Thank you. As separate exhibits, or just one
24 MR. GUY-SMITH: One exhibit, I think would be fine.
25 JUDGE MOLOTO: Okay. Mr. Registrar, if you can give ID00-2536 an
1 exhibit number, please, and admit it into evidence, together with other
2 two pages.
3 THE REGISTRAR: Yes, Your Honours, this document shall be given
4 Exhibit D133. Thank you.
5 JUDGE MOLOTO: Thank you.
6 Yes, Mr. Guy-Smith.
7 MR. GUY-SMITH:
8 Q. Would you agree with me that the Army of Bosnia-Herzegovina used
9 safe areas as locations in which BiH troops could rest, train, equip
10 themselves, as well as fire on Serb positions which thereby provoked Serb
11 - and by this I'm referring to Bosnian Serb - retaliation?
12 A. As to the notion of rest, most of the soldiers were civilian
13 soldiers, and most of them lived in that safe area. So by definition
14 they were there. Otherwise, I'm not sure I would agree with your -- in
15 fact I certainly not agree with elements of your broad proposal.
16 Q. When you say you would not agree with elements of my broad
17 proposal, let me be clear about your disagreement with me, sir, which is
18 that you would not agree with me that the Army of Bosnia-Herzegovina
19 could train in the safe area; correct?
20 A. On that point, I am not sure what you mean by train, but I was
21 never aware of any training being undertaken, no.
22 Q. In a safe area?
23 A. Right.
24 Q. Equip themselves --
25 A. Please recall -- please recall that, for example, the safe area
1 of Sarajevo
2 military forces of Bosnia-Herzegovina.
3 Q. Understood.
4 Equip themselves with further weaponry, do you disagree with that
5 broad proposition as I put it to you?
6 A. Not necessarily.
7 Q. And when you say not necessarily, what is your qualification,
8 Mr. Sacirbey?
9 A. Again, with the one situation, at least that I'm familiar with,
10 is Sarajevo
11 demilitarised. In fact heavy weapons were put away in UN, that is
12 UNPROFOR holding areas, but I do not believe there was an absolute
13 removal of all weapons from Sarajevo
14 Q. Okay. When I'm referring to safe areas, I'm not limiting this
15 discussion to that of Sarajevo
16 areas. And I want the record to be clear in your understanding of my
17 question and the intent of my question to be clear, that I'm referring to
18 all of the safe areas that were recognised under the Resolution 824 and
19 836, and not just Sarajevo
20 A. I understand.
21 Q. Okay.
22 A. I do understand. I think the reason I qualified my answer to the
23 extent that I had personal knowledge or observations of what may have
24 been happening.
25 Q. Okay. From these safe areas, do you disagree with the
1 proposition that the Army of Bosnia-Herzegovina fired at Bosnian Serb
3 A. Depending on the time-frame, that may have occurred.
4 Q. Okay. And when you say that may have occurred, is that the
5 qualification of the way that you generally use the word "may," or are
6 you talking about something else?
7 A. It could or could not have happened.
8 Q. Well, as a matter of fact, you know it did happen, don't you,
9 Mr. Sacirbey? You know that the army of the BiH, as a matter of fact,
10 fired from safe areas on numerous occasions throughout the conflict
12 A. I am sorry, is that a question?
13 Q. Well, let me wrap it up for you. Don't you?
14 A. Again I would be happy to say, to the extent that I am aware of,
15 in fact the -- at least some of the safe areas including Sarajevo
16 continued to be defended by the forces of Bosnia-Herzegovina, the Army of
17 Bosnia-Herzegovina, that's correct.
18 Q. And when the Army of Bosnia-Herzegovina fired from those areas as
19 in any war, such firing provoked retaliation on the part of the
20 Bosnian Serb forces, did it not?
21 A. As I understood your question originally was, you indicated that
22 the Army of Bosnia and Herzegovina had fired in order to provoke a
23 response. I do disagree with that statement, if that is in fact the
24 original that you made.
25 Q. That is the original that I did make, yes.
1 A. I disagree with that.
2 Q. Thank you. Would you agree with the proposition that most of the
3 soldiers in the Bosnian army lived inside of safe areas?
4 A. I referred -- well, that's -- let's put it this way, certainly a
5 very large number of them did, because they were mostly civilian
6 soldiers, that is correct.
7 Q. Okay. And when you use the term civilian soldiers, I find this
8 an interesting term. Are you using the term civilian soldiers in the
9 same way that we have discussed - and now I am going to move away from
10 this time - non-combatants?
11 A. No, actually, in here, I'm referring to the fact that most of
12 these individuals had been recently drafted into the army, and in fact
13 many of them -- the general situation in Bosnia was that the soldiers
14 served for a week on the frontlines, and then had several days off with
15 their families. They had generally limited military resources to either
16 house them or otherwise sustain them.
17 Q. Well, if you could help us here, the leadership corps of the Army
18 of Bosnia-Herzegovina sprang from the former JNA, did it not?
19 A. Significant portion of it did, yes, that's correct.
20 Q. And when you say a significant portion of it did, can you
21 identify for us those members of the leadership corps that sprang from
22 the JNA?
23 A. Yes, for example, General Rasim Delic, who I mentioned,
24 General Jovan Divjak, or Colonel Siber are all of three different ethnic
25 groups, who all had some background in the JNA.
1 Q. And would it be fair to say within your knowledge that the Army
2 of Bosnia-Herzegovina created a well-planned and structured organisation
3 as any military organisation would?
4 A. Given the conditions, and I emphasise that conditional, given the
5 conditions, yes.
6 Q. And the commander of the army, I take it, was
7 President Izetbegovic; correct?
8 A. The Presidency of Bosnia and Herzegovina of which Mr. Izetbegovic
9 was the chair.
10 MR. GUY-SMITH: Thank you. This would be an appropriate time
11 because I would be moving to another subject.
12 JUDGE MOLOTO: I certainly would be. And in fact I think our
13 tape can take us no further. We'll take a break and come back at quarter
14 past 6.00.
15 Court adjourned.
16 --- Recess taken at 5.44 p.m.
17 --- On resuming at 6.16 p.m.
18 JUDGE MOLOTO: Mr. Guy-Smith.
19 MR. GUY-SMITH:
20 Q. I want to discuss with you now and turn to the issue of
21 helicopters. First of all, it's true, is it not, that you met with a
22 group of individuals from the Srebrenica area, I believe, in Sarajevo
23 sometime in, I would say, early July before the fall of Srebrenica
24 concerning their generalised worries and concern. My question to you is
25 that they came to you from Srebrenica by which of helicopter; correct?
1 JUDGE MOLOTO: Who are these?
2 MR. GUY-SMITH: A group of concerned citizens.
3 THE WITNESS: [Via videolink] They did come to Sarajevo. I don't
4 know how they arrived, Mr. Guy-Smith.
5 MR. GUY-SMITH:
6 Q. Okay. Do you recall discussing this matter with Mr. Nice at one
7 point during your interview?
8 A. The issue of helicopters or the issue of the individuals from
10 Q. Both.
11 JUDGE MOLOTO: Yes, Mr. Harmon.
12 THE WITNESS: [Via videolink] I certainly -- [Overlapping
14 MR. HARMON: I am sorry, Your Honour, I was not getting sound.
15 As I stood, I got sound. So I apologise.
16 JUDGE MOLOTO: Thank you.
17 Sorry, Mr. Sacirbey, you can continue.
18 MR. GUY-SMITH:
19 Q. Where we left was --
20 A. I was trying to --
21 Q. I said both. In response to your answer, the issue of
22 helicopters or the issue of the individuals from Srebrenica, said to you
23 both, that you discussed both of those with Mr. Nice.
24 A. Certainly I'm quite certain we discussed the last point, that is
25 the delegation from Srebrenica. As to helicopters, quite possibly.
1 Q. And when you say quite possibly, are you being speculative here,
2 or was it within your knowledge the way that they got to you from
3 Srebrenica was through a helicopter flight?
4 A. To be clear, when I speak of helicopters, I'm aware of certainly
5 one situation that you may be alluding to, which is, when I became
6 foreign minister, my predecessor was shot down and killed in a helicopter
7 being shot down. That's really what I'm referring to when we speak of
9 Q. No, I'm referring to a different situation. I'm referring to the
10 delegation that came to discuss matters about Srebrenica. They came to
11 your office, I believe it was the conversation -- if this helps refresh
12 your recollection. It was a conversation toward the end of June with
13 President Izetbegovic.
14 A. I very well recall that conversation and meeting with that
15 delegation. That was in President Izetbegovic's office. But for
16 whatever reason, I do not recall how they arrived to Sarajevo.
17 Q. Okay. I'm going to suggest something to you and see whether that
18 refreshes your recollection in that regard, which is that you were asked
19 by Mr. Nice, who was the delegation? How did the people get out? And
20 you replied:
21 "There were eight to ten people at most. We used to have
22 helicopters that the mercenaries -- the helicopters and everything else
23 were from the Ukraine
24 didn't have helicopters here."
25 And then you -- do you remember that discussion with Mr. Nice?
1 A. I certainly remember those facts. I don't remember that
2 discussion, but I think the way you just read that seems to imply that it
3 was my opinion that that delegation did not come by helicopter.
4 Q. Okay. Well, let me ask you this, because I don't want to -- I
5 certainly don't want to, in any sense whatsoever, mislead you here.
6 You agree that you used to have helicopters that were from the
8 Bosnia-Herzegovina army, and specifically the Bosnia-Herzegovina army in
10 A. That is correct.
11 Q. Okay. And those helicopters were helicopters that were used by
12 the Bosnia and Herzegovina military for purposes military and otherwise,
13 I take it. If you know.
14 A. That -- that I cannot absolutely confirm for you. The one
15 situation, as I've said, I'm very familiar with, is the shooting down of
16 the helicopter of Dr. Irfan Ljubijankic who was flying as a Bosnian
18 Q. Okay. Are you aware of Oric flying out of Srebrenica on a
19 helicopter, I believe, in May of 1995?
20 A. Certainly it is something that I was totally unaware of at the
21 time, if that's how it happened.
22 Q. Did there come a time when you became aware of the fact that Oric
23 had left -- by Oric I'm referring to Naser Oric, so the record is clear.
24 That Naser Oric had left the Srebrenica area?
25 A. I believe the only time I became aware of it is actually the
1 meeting with the delegation, because he was not even present, if I'm
3 Q. Well, let's follow up on that just for a brief moment. Since he
4 wasn't present with the delegation, do you know where Naser Oric was
5 stationed after he left Srebrenica?
6 A. No, I do not.
7 Q. Okay. And Naser Oric, could you, for purposes of the record,
8 please be of some assistance to us, what was his position in the army of
9 the BiH?
10 A. Frankly, on that point it's very difficult because, as you do
11 know, he was not someone that either came from a JNA background or a
12 regular backgrounds of the army of the Republic of Bosnia-Herzegovina.
13 So, honestly, to that statement, I am not in a position to give you a
14 better answer.
15 Q. Okay. Were you made privy to the military reports of the army of
16 the BiH with regard to helicopter flights in and out of various areas?
17 And by that I mean areas where the army of the BiH was located.
18 A. No, I think the only time I might have had some more knowledge of
19 it would have been at the very end of the war, as is the record I flew on
20 a helicopter into the Bihac zone after it was liberated. But, no, I was
21 not aware of any schedule or any record-keeping regarding that matter.
22 Q. All right. After the Bihac zone was liberated, did you have
23 occasion to see any documents concerning what I will term the air bridge
24 of Srebrenica and Zepa that was produced by Colonel Erdin Hrustic
1 A. I did not have a chance to see any such documents.
2 MR. GUY-SMITH: The screen is locked.
3 THE REGISTRAR: [Via videolink] Your Honours, we can see you and
4 hear you.
5 JUDGE MOLOTO: We are told that your screen is frozen, so we
6 don't see any movement on you. And I don't see you at all.
7 THE WITNESS: [Via videolink] Shall we try to reconnect, maybe?
8 JUDGE MOLOTO: Please, if you could, please. While we are
9 waiting, how are you feeling, Madam Bolton?
10 MS. BOLTON: We will enough to sit in the second chair,
11 Your Honour, but thank you for your inquiry.
12 JUDGE MOLOTO: Thank you so much, I hope you get better.
13 THE REGISTRAR: [Via videolink] Your Honours, can you hear and see
14 us now?
15 JUDGE MOLOTO: Very clearly.
16 And can you hear us?
17 THE REGISTRAR: [Via videolink] Yes, Your Honours, we can.
18 JUDGE MOLOTO: You can. Thank you so much.
19 Thank you, Mr. Guy-Smith.
20 MR. GUY-SMITH: Thank you.
21 Q. During your tenure as ambassador, did you have contact with a
22 gentleman by the name of Robert Fraser?
23 A. I believe you are speaking of a US official?
24 Q. That's correct.
25 A. Yes, I did.
1 Q. Did you have occasion to discuss with Robert Fraser any air
2 flights for the benefit of the Bosnian army in Tuzla in early September
3 of 1994?
4 JUDGE MOLOTO: Can you hear us?
5 THE WITNESS: [Via videolink] I just don't recall that.
6 MR. GUY-SMITH:
7 Q. Do you recall a mission that occurred, a familiarising mission,
8 that included Ambassador Charles Thomas, Richard Holbrooke;
9 Robert Fraser, commander brigadier General Michael Hayden [phoen] of the
10 US Air Force, General Charles Boyd, UN Marine Corps General David Mees
11 [phoen], US Marine Corps Lieutenant General Edward Hanlin [phoen] meeting
12 with an army commander for the Muslim Bosnian army, Mehmet Alugic
14 A. Are you asking if I was at that meeting or ...
15 Q. First of all, I'm asking you if you were at that meeting, yes.
16 A. I was not at any such meeting.
17 Q. Are you aware of that meeting and aware that that meeting
18 concerned the building of a secret air strip in Visoko to land heavy
19 transport aircraft?
20 A. At some point in time I became aware of that meeting, but
21 certainly not, I think, any sort of current knowledge of it.
22 Q. When you say current knowledge, you are referring to --
23 A. The possibility of that meeting because, frankly, Mr. Guy-Smith,
24 I must admit I've never had any sort of direct information that says who
25 was at the meeting. I've only heard bits and pieces and much of it is
2 Q. Okay. And with regard to the matter of you hearing bits and
3 pieces, one of the individuals who I believe you would be fair to say you
4 spent a fair amount of time with during your tenure, I believe as
5 ambassador was Mr. Fraser; correct?
6 A. We certainly knew each other. I wouldn't say we spent a lot of
7 time together, no. Unfortunately, as you also know, he died on
8 Mount Igman in August of 1995.
9 Q. Yes, I know that, yes. Prior to his death is obviously the time
10 that I'm referring to.
11 A. Yeah, no, I understand. And I think I'm trying to suggest to you
12 Mr. Fraser was not someone that I dealt with extensively. Certainly I've
13 dealt with many other US officials much more extensively.
14 Q. With regard to -- since you have raised the issue, with regard to
15 Mr. Fraser's death, that -- as a matter of fact, the death itself, was
16 something that Mr. Holbrooke discussed with you as being an incident that
17 he could use for further US involvement in assisting the
18 Bosnian Herzegovina army correct?
19 A. No, I don't think that would be correct. I think he certainly
20 saw it as something that he could use in the context of his own efforts,
21 but I think the last part of that conclusion is not accurate.
22 Q. The last part of the conclusion meaning in assisting the
23 Bosnian Herzegovina army, is that what you are referring to?
24 A. Mr. Guy-Smith, I don't think Ambassador Holbrooke had any
25 interest in assisting the Bosnian Herzegovinians; I think he had an
1 interest in assisting his own mission.
2 Q. Okay. So with regard to the unfortunate death of Mr. Fraser, you
3 had a conversation with him, that's what I'm asking, you had a
4 conversation with him in which he made it clear to you that he was going
5 to be using the death of this American for purposes of furthering his
6 particular agenda, as it related to Bosnia and Herzegovina conflict;
8 A. He actually used that notion in the context of the death of
9 Joe Kruzel [phoen], who is a relative of mine, a cousin of mine by
10 marriage. So he came to me and said, Mo, your cousin is dead, somewhat
11 excitedly, almost euphorically, and made the point that now, you know, we
12 really had to make his mission work, because that was when the so-called
13 US initiative for the Balkans was gaining some steam.
14 Q. When you are referring to --
15 A. And --
16 Q. Go ahead. I'm sorry, I didn't mean to cut you off.
17 A. I must admit, I found it a little bit distasteful, because three
18 very good men had just died, and including a French soldier, who I did
19 not know.
20 Q. And with regard to this particular incident, you mentioned that
21 the so-called US initiative for the Balkans was gaining some steam. Are
22 you referring to the attempts in the United States congress by
23 Senator Dole to lift the embargo, or are you referring to something else?
24 A. No, I'm talking about the process that started probably sometime
25 that summer, not necessarily fully clear to me, which ended up in the
1 Dayton Accord.
2 Q. Okay. I understand your answer in that regard. Since we are, I
3 believe -- could you help me here. When did that occur? When was the
4 date of that?
5 A. It was -- I'll give you a little more. In very early August I
6 had met with Ambassador Holbrooke and his entire team, including
7 Bob Fraser, in Split airport because they couldn't, and they were not
8 allowed, to land in Sarajevo, according to them, because the Serbian
9 forces besieging the city. And we met in Split. And then they came back
10 a week later which would have been, I believe, right around the 10th of
11 August, if I'm not mistaken.
12 Q. That would have been which year, sir?
13 A. Oh, I am sorry, 1995.
14 Q. Thank you so much. I want to take you back now for a moment to
15 1994. In 1994, if I'm not mistaken, you at some point met with a
16 gentleman by the name of Mr. Mitterrand with Ambassador Kovac, did you
18 A. That is correct.
19 Q. And when you --
20 A. Ambassador Kovac, yes.
21 Q. When you met with Mr. Mitterrand, could you, for the purposes of
22 the record, kindly tell us who that gentleman is.
23 A. It was President Francois Mitterrand, who was the president of
24 the French republic at the time.
25 Q. And your purpose of meeting with him was to obtain his support,
1 was it not?
2 A. No, actually at that time it was to address a very dire situation
3 that was evolving around and developing around the safe area of Gorazde.
4 Q. And with regard to the meeting with Mitterrand, you had some
5 concerns, and by that I mean you personally had some concerns because in
6 your estimation, Mitterrand was a pro-Serbian and a supporter of, as you
7 believed to be, the Serbian inclinations; correct? And I'm including all
8 Serbs for the moment.
9 A. No, I found him to be more of anti-Muslim and, frankly, bigoted.
10 That's what turned me off to him.
11 Q. When you say that he was bigoted, he had a conversation with you
12 in which he -- I'm sorry. He had a conversation with, I believe, it was
13 the ambassador Dr. Kovac, in which --
14 A. Dr. Nikola Kovac.
15 Q. Correct. And in that conversation, where you were present, you
16 claimed that Mr. Mitterrand said it was the Muslims who were provoking
17 the difficulties; it was the Muslims who are responsible for the
18 difficulties; correct?
19 A. Something to that effect, that's correct.
20 Q. Okay.
21 A. And he did use -- the Muslims, as you have pointed out.
22 Q. And it was his view -- I am sorry. I'm not asking what his view
23 was at all because that would ask you to speculate as to what was going
24 on in his mind. But he declared in your presence at that time in the
25 summer of of 1994 that he was not interested in being of any assistance
1 by virtue of the fact that it was the Muslims who were creating the
2 problem; correct?
3 A. I'm not sure we ever reached to that concluding point. I think
4 if you are relating the story in which I have written down on several
5 occasions, the conclusion of that meeting was his grave rebuke to
6 Dr. Nikola Kovac who was a Serb. And why was he in fact not with the
7 other Serbs, and why was he a traitor to Serbs as a whole by being with
8 the Republic of Bosnia and Herzegovina? Mr. President Mitterrand seemed
9 to understand this conflict in ethnic terms. And I think Dr. Nikola
10 Kovac did not. As Nikola Kovac, again, as I emphasise is a Serb himself.
11 Q. President Mitterrand, if I'm not mistaken, if I could be so bold,
12 then joins that group of individuals who you are critical of in the
13 international community, Mr. Bildt, General Rose, and Mr. Holbrooke;
15 MR. HARMON: Your Honour.
16 JUDGE MOLOTO: Yes, Mr. Harmon.
17 MR. HARMON: I'm going to object to the relevance of this
18 question and this line of questioning.
19 JUDGE MOLOTO: Mr. Guy-Smith.
20 MR. GUY-SMITH: I'll withdraw the question.
21 JUDGE MOLOTO: Thank you so much, Mr. Guy-Smith.
22 Q. With regard to your encounter with Mr. Mitterrand, do you know
23 whether or not the sentiments that you have attributed to him were voiced
24 to others in the international community and became part of a discussion
25 in your capacity as the ambassador for Bosnia-Herzegovina?
1 JUDGE MOLOTO: Voiced by who?
2 MR. GUY-SMITH: Mr. Mitterrand.
3 THE WITNESS: [Via videolink] Your Honour, I am unclear on the
4 question as well.
5 JUDGE MOLOTO: Look at the question.
6 MR. GUY-SMITH: Fine.
7 Q. The issue that you attribute to Mr. Mitterrand, that Kovac was a
8 traitor to the Serbs and that the problem that existed was a problem that
9 existed because of the Muslims, is that something, to your knowledge,
10 that was part of the conversations that you had in your capacity as a
12 A. I must say I did not have this conversation repeated on other
13 occasions. It was a rather unique moment especially with the head of
14 state of, what I consider, a very progressive country, France, a
15 multiethnic country.
16 Q. Did there come a time when you learned that the position that had
17 been voiced in your presence by Mitterrand, was something that was part
18 of the discussion and part of the view that was held by either the French
19 specifically in their international capacity concerning the negotiations
20 that were occurring at the United Nations?
21 A. Again I'm not quite clear. Are we talking about the bigotry, the
22 prejudice, or are we talking about some political position taken there?
23 Q. Well, let's start with the bigotry and the prejudice, as you've
24 defined it.
25 A. Unfortunately --
1 MR. HARMON: Objection, Your Honours. I object to the relevancy
2 of that question.
3 JUDGE MOLOTO: Mr. Guy-Smith.
4 MR. GUY-SMITH: Well, this actually is, certainly in our
5 estimation, relevant because if, in fact, this, what Mr. Sacirbey claims,
6 occurred, and that's an entirely different question, but whether or not
7 it occurred, there's a predicate that I'm trying to figure out about
8 which is whether or not the bigotry and prejudice that was felt by the
9 leader of France according to Mr. Sacirbey is something that was then
10 communicated to other members of the French delegation or any other
11 delegation, which then would directly affect international negotiations
12 or certainly would have that possibility. And such information, if such
13 information existed, would be information that then would flow throughout
14 the marketplace of ideas throughout the diplomatic community.
15 JUDGE MOLOTO: My concern is that I was under the impression that
16 the point under discussion at this point was neither bigotry or political
17 position, but whether -- but the point under discussion, I thought, was
18 Mr. Mitterrand 's alleged position that Kovac was a traitor to the Serbs,
19 which is what was what you were discussing. And I thought when
20 Mr. Sacirbey then says, Are you referring to bigotry or political
21 position, he was obviously off beam and should have been brought back to
22 the topic.
23 MR. GUY-SMITH: I'm sorry, I believe he said bigotry or
24 prejudice, and that's why --
25 JUDGE MOLOTO: Oh, I'm reading what I see here.
1 MR. GUY-SMITH: And that's why I was spending a moment there
2 because, clearly, if someone is a bigot and they have a view of others
3 which stems from such a prejudice, then to the extent that bigotry could
4 influence their thinking patterns and affect obviously the directions
5 that they would give to their delegation, it would then take us to the
6 next part which is whether or not the ambassador Kovac was, in fact, a
7 traitor to the Serbs or not. That's what my thinking was at that point.
8 But if that is too much, I'm happy to move on, because it's no a
9 critical issue. I find it to be somewhat -- I'm actually somewhat taken
10 aback by the notion that Mr. Sacirbey has indicated with regard to
11 Mitterrand, but that's a different matter.
12 JUDGE MOLOTO: Quite apart from, actually, the objection. For
13 me, this whole line of -- it's just not knowing where we are going with
14 it. Thank you so much.
15 Mr. Guy-Smith.
16 MR. GUY-SMITH:
17 Q. After the meeting that you had with Mitterrand, in your
18 estimation did the French position change, in any respect, in terms of
19 support or lack of support for Bosnia-Herzegovina?
20 A. It certainly was a dynamic situation, and I'm of the view that
21 under President Jacques Chirac, France was more constructive. At least
22 over the long term.
23 Q. Okay, so if I understand your testimony correctly, there was a
24 shift after Chirac came into power, which would have been when, sir?
25 A. That would have been in the spring of 1995. There was an inertia
1 involved obviously in politics from past leaders to new leaders, and I
2 think that shift did take place. We had an opportunity to meet with
3 President Chirac in late August of 1995. And I found him to be both
4 engaging in terms of the discussions and looking for solutions that would
5 in fact, I think, be constructive in the context of ending the conflict.
6 Q. Thank you. Now, regard to the issue -- and we did go away from
7 the issue unfortunately. But with regard to the issue of helicopters,
8 I'd like to get back to that, to the whole matter of helicopters, because
9 I believe that it was your testimony on direct that there were a number
10 of occasions when you believed, in your capacity as the ambassador, that
11 the air-space had been violated, and you wrote some letters in that
12 regard; correct?
13 A. That's correct.
14 Q. And could you tell us as you sit here right now, where you
15 obtained the information that you obtained with regard to your belief
16 that the air-space that was being violated was being violated over
17 Serbian territory or from Serbian territory.
18 A. The information, as the best as I can recollect, came not only
19 from Bosnian sources, that is, government sources, but also from the
20 media and particularly the international forces on the ground, that is
21 the UN forces on ground that were either responsible for monitoring, or
22 they are in the context of peacekeepers.
23 Q. With regard to the information that you received, did you have
24 occasion before testifying in court here, the opportunity to review the
25 final report of the inquiry into unexplained radar traces between the
1 Federal Republic of Yugoslavia and Bosnia and Herzegovina?
2 A. Can you please repeat the question, I'm not sure I got it.
3 Q. Okay. Before you came to court -- before you came to court --
4 obviously, they are not here. But before you came to court, did you have
5 an opportunity to review the final report that was done with regard to
6 this issue concerning helicopter flights? Let me make it easier for you.
7 MR. GUY-SMITH: If we could have P2485 on the screen, please.
8 THE WITNESS: [Via videolink] Yeah, please.
9 MR. GUY-SMITH: Not a problem, not a problem.
10 P2485, I believe, is a document which consists of a total of
11 78 pages of which you were shown the first seven, although I may have my
12 pagination after --
13 THE REGISTRAR: [Via videolink] [Previous translation continues]
14 ... identify this tab number, please.
15 MR. GUY-SMITH: If I could get some assistance from the other
16 side of the room, I'd appreciate it. I don't have a binder.
17 MS. BOLTON: Can you remind me of the -- oh, it's May.
18 That would be the 1995 binder, tab 6.
19 MR. GUY-SMITH: Did you get that, Madam Registrar?
20 THE REGISTRAR: [Via videolink] Yes, we got it.
21 THE WITNESS: [Via videolink] I have that.
22 MR. GUY-SMITH:
23 Q. Okay. I believe this document is the one where you've seen the
24 first seven pages. We have attempted to get the balance of the document
25 to New York in hard copy, and apparently we were not successful in that
1 regard, so we are going to have to do this --
2 A. I believe I have seen this, yes.
3 Q. Okay, so my first question to you is as follows, which is: Is
4 this document a document that you saw before you testified in these
6 A. Yes.
7 Q. Okay. And with regard to the document, when you reviewed the
8 document, which is the inquiry into unexplained radar traces, the
9 document that, I take it, you reviewed is a document that consisted not
10 only of the seven pages, but also included within it an analysis of each
11 and every one of the alleged air-space violations; correct?
12 A. I don't specifically recall that, but that's quite possible.
13 MR. GUY-SMITH: Okay. I'm trying to figure out a way of doing
14 this which will make everybody's life easier and not harder. And I
15 suppose what we should do just for the moment is if we could have 65 ter
16 6076 up on the screen in e-court.
17 Q. I don't know if you have it up -- I don't know whether you have
18 it available on the screen yet or not, Mr. Sacirbey.
19 A. I have something now in Serbo-Croat language or one of the local
20 languages. Okay, I have now both.
21 Q. Okay. The document as it was presented to you by Ms. Bolton and
22 which forms the basis of the plaintiff's exhibit is the next seven pages.
23 MS. BOLTON: Sorry to interrupt. I think my friends has stated
24 facts that aren't yet in evidence. He said he has had the opportunity to
25 review it before came to court, but he didn't say that it was during
1 proofing with myself.
2 MR. GUY-SMITH: I didn't ask him whether he did or not. It's of
3 no relevance to me whether that's occurred or not.
4 MS. BOLTON: Well, you just suggested that that is when it had
5 occurred, and, therefore, you've included in your question facts that are
6 not in evidence. The document as it was presented to you by Ms. Bolton.
7 MR. GUY-SMITH: And that was the document that was presented to
8 you here in court.
9 MS. BOLTON: Sorry, I misunderstood. I thought you were talking
10 about proofing.
11 MR. GUY-SMITH: Not a problem.
12 JUDGE MOLOTO: For me, Mr. Guy-Smith, I still have P2485 on my
13 screen, I don't have 65 ter 6076 on my screen.
14 MR. GUY-SMITH: I can't do much about that. That's outside of my
15 bailiwick. If I might, I have a resolution to this, which is considering
16 that it probably will go considerable quicker if we have the hard-copy of
17 the document --
18 JUDGE MOLOTO: Well, I'm told this is one in the same document,
19 anyway, 6076 and P2485. The other one was a B/C/S version.
20 MR. GUY-SMITH: Okay. May I just -- I am noting the time, and
21 I'm thinking that by virtue of the fact of the electronic difficulties
22 that we have been having, just in terms of getting things up on the
23 screen, it may be easier because I'm not going to get through these pages
24 in this period of time. And if I can get these pages to Mr. Sacirbey in
25 hard-copy, we can probably get through it much quicker, since we've got,
1 I think, about 2 minutes left or 3.
2 JUDGE MOLOTO: Are you suggesting we adjourn?
3 MR. GUY-SMITH: I am. I think that's probably the sensible thing
4 to do.
5 JUDGE MOLOTO: Thank you very much, Mr. Guy-Smith.
6 Well then, obviously, there's no way we can continue with
7 Mr. Sacirbey tomorrow. And would I imagine that Mr. Sacirbey will be
8 advised of the next time he can come back to the witness-stand. I don't
9 think it's something that we can arrange now.
10 Mr. Harmon.
11 MR. HARMON: Your Honour, I have some suggested dates. Our first
12 priority would be Tuesday, the 7th of July. Our second priority would be
13 the Friday -- I'm sorry, let me just consult with my colleague.
14 [Prosecution counsel confer]
15 MR. HARMON: Your Honour, one of our --
16 JUDGE MOLOTO: Your second priority.
17 MR. HARMON: One of our concerns is how much longer the
18 cross-examination will go. That will assist us in terms of selecting a
19 date, because we have to arrange Mr. Sacirbey's evidence around the
20 testimony of other witnesses, and that's what I have to manage at this
21 point, so if I could get an indication.
22 MR. GUY-SMITH: I appreciate the question asked and the concern.
23 And I wish that I could accommodate Mr. Harmon. But apart from dealing
24 with Mr. Sacirbey's testimony, there has been, in my estimation, a legal
25 issue that has arisen with regard to his assertion under Rule 90. And
1 the propriety of allowing him not to answer the questions where there is
2 an available remedy. And we are in the process of finishing the
4 JUDGE MOLOTO: That's outside his testimony, Mr. --
5 MR. GUY-SMITH: Well, no, but what I'm getting at is we are in
6 the process of researching and finalising an interlocutory appeal with
7 regard to that particular issue. So to the extent that the
8 Appeals Chamber will be considering this particular issue, it may well
9 affect the length of my examination, because if in fact the
10 Appeals Chamber agrees with my position, then obviously it puts the issue
11 of his assertion and the ruling in a different light and would
12 necessarily change the length of my examination.
13 JUDGE MOLOTO: I think if you are able to estimate the balance of
14 your cross-examination putting aside the 90E appeal, it would be very
15 helpful, because I imagine that if on appeal you are successful and you
16 want to put back those questions him, then we'll have to arrange another
18 MR. GUY-SMITH: I understand that. I'm trying to figure out a
19 way of doing to both accommodate the Prosecution as well as Mr. Sacirbey,
20 so we are not bouncing back and forth in the cyber-world of video.
21 JUDGE MOLOTO: You don't know how long that appeal is going to
23 MR. GUY-SMITH: That's true.
24 JUDGE MOLOTO: So that becomes difficult for to you figure into
25 the equation.
1 MR. GUY-SMITH: That's true. Well, I wanted to alert -- I
2 thought in all fairness to all the parties as well as to the Chamber with
3 regard to the issue of scheduling, that that would be something of
4 consideration. It may not be to Mr. Harmon or not.
5 JUDGE MOLOTO: It's very difficult because we don't have control
6 over the AC.
7 MR. GUY-SMITH: Sure. Well, then, I think it would be fair to
8 say that I would be taking at least two more sessions with Mr. Sacirbey.
9 JUDGE MOLOTO: You hear that, Mr. Harmon?
10 MR. HARMON: I do, Your Honour, and that gives me some
11 enlightenment, and let me just consult with my colleague for just a
13 JUDGE MOLOTO: Sure.
14 [Prosecution counsel confer]
15 MR. HARMON: Your Honour, we are -- we would suggest that Monday
16 the 13th of July as our first priority in light of the information we
17 have just received.
18 JUDGE MOLOTO: Okay. You are aware that on both those days we
19 are scheduled to sit in the morning, and you will sort out the change of
20 times with --
21 MR. HARMON: That's obviously a complicating factor, because I
22 don't want Mr. Sacirbey to be in the room at 3 a.m. in the morning, so if
23 there's no possibility that we can sit --
24 JUDGE MOLOTO: I'm not suggesting there's no possibility. You
25 can always negotiate with the people who deal with court scheduling. But
1 I'm saying I leave it in your hands.
2 MR. HARMON: That's fine, Your Honour. I'll accept that
4 JUDGE MOLOTO: Sure. It's a very minor challenge. Okay.
5 [Trial Chamber confers]
6 JUDGE MOLOTO: Judge Picard indicates that the 13th would be
7 better because on the 7th she is sitting also in Stanisic that day, and
8 there may be a clash because Stanisic sits in the afternoon also. So if
9 you shift us to the afternoon, then she literally has to ... So will you
10 go to the 13th?
11 MR. HARMON: We agree, Your Honour. The 13th is our preference.
12 JUDGE MOLOTO: Yeah. But it was your second choice?
13 MR. HARMON: Yes, but it's our choice at this point because of
14 other considerations as well.
15 JUDGE MOLOTO: Thank you so much.
16 Would that be okay for the Defence, Mr. Guy-Smith?
17 MR. GUY-SMITH: Sure. I'm sure I can work with that.
18 JUDGE MOLOTO: Mr. Guy-Smith -- my apologies.
19 Mr. Sacirbey, the plan is to postpone to the 13th of July. Would
20 that suit you?
21 THE WITNESS: [Via videolink] Your Honour, I'm glad someone
22 finally asked me because, obviously, I have a personal/professional life,
23 as well as some legal issues to deal with, And I thank you for the
24 consideration. I'd like to be able to consult with my counsel, and of
25 course Mr. Guy-Smith has raised another issue here which comes back in a
1 much more direct fashion where my counsel may be very important. So if I
2 may just have a day or two to consult with counsel.
3 JUDGE MOLOTO: You can consult with counsel. Which issue was
4 raised by Mr. Guy-Smith, the 90E issue?
5 THE WITNESS: [Via videolink] That's correct. And there may be
6 others for all we know, of course.
7 JUDGE MOLOTO: Yea, you can consult about that. I'm just asking
8 you about your availability to come to court, sir, as a witness. And I
9 don't think you need counsel for that. The idea is to postpone to the
11 THE WITNESS: [Via videolink] Your Honour, I did have other plans.
12 I will change those plans because I consider the Court to deserve my full
13 testimony and the cross-examination. And I have great respect for you
14 and the Court that has been established there.
15 JUDGE MOLOTO: Thank you very much. The Court appreciates your
16 preparedness to change your schedule to accommodate the Court, it's very
17 much appreciated. Thank you so much. Then in that event you would be
18 required to come back to court on July the 13th, same time as today,
19 quarter past 2.00 in the afternoon. Of course when I say come back to
20 court, I mean to be where you are right now, okay. For now you are
22 THE WITNESS: [Via videolink] Thank you, Your Honour.
23 JUDGE MOLOTO: For now you are excused. Once again the warning
24 is there. You are not supposed to discuss the case with anybody during
25 the period that you are not in court for as long as you are still in the
1 witness-stand. Okay. See you on the 13th.
2 THE WITNESS: [Via videolink] I appreciate it. Thank you.
3 JUDGE MOLOTO: You are excused. You may be excused.
4 You can switch off, Madam Registrar.
5 [The witness withdrew via videolink]
6 JUDGE MOLOTO: Thank you. We adjourn to tomorrow.
7 MR. GUY-SMITH: My understanding --
8 JUDGE MOLOTO: Sorry. Everybody, please sit down. I was asking,
9 we are adjourned to tomorrow?
10 MR. HARMON: Yes.
11 JUDGE MOLOTO: Could we please sit down. It's your understanding
13 MR. GUY-SMITH: That's a morning sitting.
14 JUDGE MOLOTO: Tomorrow's sitting. Certainly, sir.
15 MR. GUY-SMITH: Thank you, sir.
16 JUDGE MOLOTO: It is a morning sitting. I was going to say that
17 -- [overlapping speakers]... before people stood up. Then the matter
18 stands adjourned to tomorrow, 9.00 in the morning, Courtroom I.
19 Court adjourned.
20 MR. GUY-SMITH: See you then.
21 --- Whereupon the hearing adjourned at 7.10 p.m.
22 to be reconvened on Thursday, the 2nd day of July,
23 2009, at 9.00 a.m.