1 Thursday, 16 July, 2009
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 2.13 p.m.
5 JUDGE MOLOTO: Good afternoon to everybody in and around the
6 courtroom. And good morning to everybody down in New York.
7 Mr. Registrar, will you please call the case.
8 THE WITNESS: [Via videolink] Good morning, Your Honour.
9 JUDGE MOLOTO: Will you please call the case, Mr. Registrar.
10 THE REGISTRAR: Good afternoon, Your Honours. Good afternoon to
11 everyone in and around the courtroom. This is case number IT-04-81-T,
12 the Prosecutor versus Momcilo Perisic.
13 JUDGE MOLOTO: Thank you so much. Could we have appearances for
14 today starting with the Prosecution.
15 MS. BOLTON: Good afternoon. It's Barney Thomas, Lorna Bolton,
16 and Inger de Ru for the Prosecution.
17 JUDGE MOLOTO: Thank you so much. And for the Defence.
18 MR. GUY-SMITH: Good afternoon, Your Honour. Daniela Tasic,
20 Gregor Guy-Smith on behalf of Mr. Perisic.
21 JUDGE MOLOTO: Thank you very much. May the record show that the
22 Chamber is sitting pursuant to Rule 15 bis this afternoon as Judge Picard
23 is held up in another case.
24 Mr. Sacirbey, good morning to you.
25 THE WITNESS: [Via videolink] Good morning.
1 JUDGE MOLOTO: Just to remind you that you are still bound the
2 declaration you made at the beginning of your testimony to tell the
3 truth, the whole truth and nothing else but the truth.
4 WITNESS: MUHAMED SACIRBEY [Resumed]
5 [Witness testified via videolink]
6 THE WITNESS: [Via videolink] Thank you, Your Honour.
7 MS. BOLTON: Sorry, Your Honour. May I just have an indulgence.
8 I'm having a technical issue, I think I've done something wrong with the
9 computer. I just need a moment.
10 JUDGE MOLOTO: You have a moment, ma'am. Will you please give
11 her a moment, Mr. Guy-Smith.
12 Do you need assistance, Madam Bolton?
13 MS. BOLTON: I think I'm going to be okay, I just think I went
14 awry in getting into LiveNote, and I just need to retrace.
15 JUDGE MOLOTO: Okay.
16 MR. GUY-SMITH: If it's of any help to Ms. Bolton, I think as
17 they say in Canada
18 JUDGE MOLOTO: Thank you very much, Mr. Guy-Smith.
19 Madam Bolton, any re-examination?
20 MS. BOLTON: There will be, but I still have a technical
21 difficulty here. I'm still not to LiveNote, Your Honour. Again, if I
22 could have one moment, please.
23 JUDGE MOLOTO: You do have a moment, Madam Bolton.
24 JUDGE DAVID: Witness Sacirbey, you refer in your testimony of
25 the 16 June as well as yesterday that you acted as representative of your
1 country in proceedings before the International Court of Justice in
2 relation to the case concerning application of the convention on the
3 prevention and punishment of the crime of genocide; is that correct?
4 THE WITNESS: [Via videolink] That is correct. From 1993 to the
5 year 2000.
6 JUDGE DAVID: The Court adopted a resolution that you had already
7 mentioned also on the 8th April 1993, resolution on provisional measures.
8 And part of that resolution was quoted in Security Council Resolution
9 819; is that correct? Paragraph 2. Do you recall that? Resolution 819.
10 Taking note that the International Court of Justice in its order of
11 8 April in the case concerning application of the convention on the
12 prevention and punishment of the crime of genocide, Bosnia and
14 indicated as a provisional measure that the government of the Federal
15 Republic of Yugoslavia
16 pursuance of its undertaking in the convention on the prevention and
17 punishment of the crime of genocide of 8 December 1948, take all measures
18 within its power to prevent the commission of the crime of genocide. In
19 relation to the resolution my question to you is this: In paragraph 12
20 the resolution said:
21 "Decides to send as soon as possible a mission of members of the
22 Security Council to the Republic of Bosnia-Herzegovina to ascertain the
23 situation and report thereon to the Security Council."
24 My question is this: Do you recall the countries that of
25 permanent members of the Security Council that have been part of the
1 mission according to paragraph 12?
2 THE WITNESS: [Via videolink] Yes, I believe I do, Your Honour.
3 The team was led by Ambassador Diego Arria, at that time the permanent
4 representative of Venezuela
5 represented, if I may, I may not recall all the names; but I believe it
6 was Pakistan
7 leaving one country out.
8 JUDGE DAVID: That was my only question. I just wanted to check
9 if you recall the members of that mission establishing paragraph 12 of
10 Resolution 819. Thank you very much.
11 THE WITNESS: [Via videolink] My pleasure, Your Honour. Thank
13 JUDGE MOLOTO: Did I give you enough time, Madam Bolton?
14 MS. BOLTON: You did, Your Honour. I didn't do very well in
15 computer science, I have to admit, so I'm all right now.
16 JUDGE MOLOTO: Are you okay now?
17 MS. BOLTON: I am. Thank you.
18 JUDGE MOLOTO: Thank you very much. The witness is yours.
19 MS. BOLTON: Thank you.
20 Re-examination by Ms. Bolton:
21 Q. Good afternoon, Mr. Sacirbey I have a few questions arising
22 from --
23 A. Good afternoon.
24 Q. Sorry, I forgot about the time delay. I have a few questions for
25 you, and the first arises from some questioning at page 7624 of the
1 transcript, and this is in relation to a line of questioning about
2 Resolution 713. Do you recall that line of questioning, sir?
3 A. There was quite a bit of it but I do recall, Ms. Bolton.
4 MR. GUY-SMITH: Excuse me for a moment, I'm having technical
5 difficulties. I can't hear Mr. Sacirbey. If he could try again,
7 MS. BOLTON:
8 Q. Mr. Sacirbey, could you say testing 1, 2, 3. We are having some
9 technical problems in the courtroom.
10 A. Yes, testing 1, 2, 3. 1, 2, 3.
11 MR. GUY-SMITH: Perfect. Thank you so much.
12 JUDGE MOLOTO: Thank you, Mr. Sacirbey.
13 MS. BOLTON:
14 Q. All right, sir, going back to this area of questioning, there
15 were two things that you commented on, at pages 7624 and 7721 of the
16 transcript. You had indicated in questioning that there were states that
17 ultimately took a view that Resolution 713 wasn't binding on
18 Bosnia-Herzegovina, and then in questioning about this area, you gave the
19 following response to Mr. Guy-Smith, you said:
20 "Well, you are speaking, of course, sometimes we speak of the
21 Security Council, sometimes we speak of the UN. As you will recall, in
22 the General Assembly starting December 1992, there was a resolution of
23 the General Assembly that specifically recommended that, in fact, the
24 Security Council should, in fact, make it clear that Bosnia-Herzegovina
25 was not bound by Security Council Resolution 713."
1 MS. BOLTON: I'm going to ask that document 65 ter 9090 be
3 Q. And sir, this is going to appear in e-court for you.
4 A. Thank you.
5 Q. Are you able to see the document, sir?
6 A. Not yet. We only see Your Honour there. There.
7 Q. You've got it? First of all, do you recognise whether this --
8 A. Yes.
9 Q. Is this a document of the General Assembly, sir?
10 A. Yes, it is. It's a reference to the resolution ultimately
11 adopted on the situation in Bosnia-Herzegovina.
12 Q. Okay, if I could ask you -- I'm going to ask that we go to page,
13 I think it's 3 in e-court. And if you could focus on numbered
14 paragraph 7 when you do the expansion, please.
15 A. A little more, please. Yes, we see it now. A little better
17 Q. Sir, are you able to read it?
18 A. Just a little more clarity. It's large enough, but it needs more
19 clarity. That should be good enough.
20 Q. Okay. Looking at paragraph 7, it indicates that the
21 General Assembly is urging the Security Council to do certain things, and
22 then at paragraph (b) it reads:
23 "To exempt the Republic of Bosnia and Herzegovina from the arms
24 embargo as imposed on the former Yugoslavia
25 Resolution 713."
1 And my question is whether this is the resolution that you were
2 referring to in cross-examination?
3 A. It is, and Ms. Bolton, I think it's also the context in which we
4 were referring to the non-application of the arms embargo in respect of
5 Bosnia-Herzegovina. In other words, it was obviously a failure to
6 enforce international security in the context of this conflict and to
7 that extent Bosnia-Herzegovina also had the right and the obligation to
8 defends itself.
9 Q. Okay.
10 MS. BOLTON: Can I ask that that be marked as an exhibit,
11 Your Honour.
12 JUDGE MOLOTO: Its admitted. May it please be given an exhibit
14 THE REGISTRAR: Yes, Your Honours. This document becomes
15 Exhibit P2617. Thank you.
16 JUDGE MOLOTO: Thank you.
17 Yes, Madam Bolton
18 MS. BOLTON: Yes, thank you.
19 Q. Sir, at page 7741 of the transcript, you indicated that you had a
20 conversation with Mr. Carl Bildt the day that Srebrenica was falling, and
21 you indicated further that at that time he told you that neither
22 Srebrenica nor Zepa nor Gorazde would be defended, do you recall that
23 evidence, sir?
24 A. Yes, I do, Ms. Bolton.
25 Q. Did either the United Nations forces on the ground or NATO defend
2 A. As far as I am aware, they did not.
3 Q. Or Gorazde?
4 A. In fact -- well, Zepa, in fact, was overrun with, as I know of no
5 intervention on the part of NATO. To the extent the UN peacekeepers
6 undertook any measures, they certainly were not either effective nor in
7 any way confronted the attack. Once the attack upon Gorazde would have
8 proceeded, in fact, at that time the evidence regarding the massacres of
9 Srebrenica came out. And so I'm not at all certain that, in fact, the
10 attack upon Gorazde could have proceeded as would have been envisioned.
11 Q. Okay. Move to a different topic, sir.
12 MS. BOLTON: Could I have displayed, please, I think, sir, in the
13 binder that Defence provided to you, there was a document that was
14 discussed and I think you'll find at tab 34 of that binder, and it -- the
15 document ID number is ID 030648.
16 Q. Should be a meeting of the Security Council 9th November, 1994.
17 A. Yes, I have that in front of me.
18 Q. You may recall counsel took you to a passage dealing with
19 UNPROFOR providing fuel to the Serbian forces based on the ostensible
20 purpose of clearing the snow off of the roads. Do you recall that line
21 of questioning?
22 A. Yes, I do, Ms. Bolton.
23 Q. This document wasn't tendered by the Defence, and I wonder if you
24 could just take a look at it and confirm for me if this is, in fact, an
25 official transcript of the proceedings of that date?
1 A. Yes, I believe this is it.
2 MR. GUY-SMITH: If it's of any assistance, Ms. Bolton, and you
3 would like to tender that document, we certainly have no objection.
4 MS. BOLTON: Thank you, I will be making that request in a
6 Q. If I could just refer you, sir, to e-court page 7 of that
7 document, which is page ID 030654. And looking at the -- sorry, if you
8 would scroll up a little bit, please. Thank you. Perfect. The
9 right-side column of this document, you'll see there's a paragraph that
10 refers to the fact -- starts with the word:
11 "Yesterday, as was mentioned in this council, four children and
12 women were murdered in front of a school-yard in Sarajevo as a result of
13 the now intensified shelling of the city of Sarajevo and its civilian
15 MR. GUY-SMITH: I would indicate that the matter which is being
16 discussed right now is outside of the cross-examination.
17 MS. BOLTON: I simply want the witness to confirm that this is
18 part of the speech that was delivered and this is matter that my
19 friend -- a speech my friend went into in chief. He doesn't get to pick
20 and choose which parts of the speech are discussed.
21 JUDGE MOLOTO: You are allowed to continue, Madam.
22 MR. GUY-SMITH: Just for purposes of clarity of the record,
23 Your Honour, what I did was I showed him a particular passage for
24 purposes of refreshing his recollection. And only for those purposes and
25 for no other purposes.
1 JUDGE MOLOTO: Fair enough. But it's the same document. You may
2 proceed, ma'am.
3 MS. BOLTON: It is. Thank you.
4 Q. And, sir, on that same column a little farther down, one
5 paragraph down, what we were looking a it says:
6 "We now find ourselves in a situation where once again Sarajevo
7 is being shelled; our young children are being murdered on our streets;
8 Serbian aircraft are once again flying through our skies like birds of
10 Does that speech, sir, accurately reflect the situation in
12 MR. GUY-SMITH: That's a totally different question, that speech
13 [Overlapping speakers] accurately - excuse me - that speech may well
14 accurately say what he said at the time, but now she is asking for an
15 opinion on his behalf as to whether or not they were birds of prey and
16 whether, in fact, there was any violation of the air-space at all, and in
17 the absence of predicate facts it's improper, and once again, it's
18 certainly outside of the scope of cross-examination.
19 JUDGE MOLOTO: Madam Bolton.
20 MS. BOLTON: That's fine, I'll withdraw the question,
21 Your Honour.
22 JUDGE MOLOTO: Thank you.
23 MS. BOLTON: If you could turn, brief indulgence, Your Honour.
24 Too much paper, Your Honour, I'm losing track of my place. Sorry.
25 Q. If you could turn in that same document, sir, to pages in e-court
1 it's pages 12. And in the written copy, sir, it's ID 030659. And if we
2 could scroll to the very bottom of the page for people in e-court. You
3 were asked --
4 A. Ms. Bolton, just a brief indulgence, I don't have that ID number
5 in front of me. I have page numbers in front of me.
6 Q. You have, like, the small numbers, 46, 47, those numbers?
7 A. Yes. My page -- the speech starts on page 36.
8 Q. Yes, and I'm asking you --
9 A. Before that is -- before that it is Mr. Pale [phoen], Ambassador
10 Pale of Argentina
11 Q. Do you have page 46 a speech that follows you by the ambassador
12 from Morocco
13 A. I believe I do, yes, I do.
14 Q. Okay. In cross-examination, sir, do you recall a line of
15 questioning to the effect that one of the reasons some of the
16 United Nations member states opposed the lifting of the arms embargo was
17 that adding more weapons to the area would simply pour gasoline on the
19 A. Yes, I do, Ms. Bolton.
20 Q. Did any countries espouse a contrary view to that?
21 A. Yes, many did.
22 Q. If I could ask you to look at page 47. This is part of the -- if
23 we could move forward in e-court to the next page, please. Fourth
24 paragraph down, it's a paragraph that says:
25 "The de jure lifting of the arms embargo would be effectively
1 implemented only in six months' time, in accordance with the proposal
2 made last September by the Bosnian President, if the Bosnian Serbs were
3 continuing to reject the peace plan presented by the -- if by then, the
4 Bosnian Serbs were continuing to reject the peace plan presented by the
5 Contact Group."
6 A. Yes, I note that. Of course, this was in connection with the --
7 a proposal made by President Izetbegovic at the time, that the lifting of
8 the arms embargo could be delayed by a few months to give the Serbian
9 side the opportunity to accept what was then the Contact Group peace
11 Q. Sorry --
12 A. Otherwise an indefinite application of the arms embargo would in
13 fact in some way or another ratify the continuing military superiority at
14 least in terms of weapons of the forces Serbian forces.
15 Q. Sorry, sir, there was a second passage I wanted to read to you
16 before you commented. And the second passage --
17 A. Sorry about that.
18 Q. It's okay. The time delay is difficult. The second passage is
19 then on page 48 in your copy in the next page in e-court. If we could
20 scroll down. That's fine, thank you. Looking at the left column there
21 is a paragraph that says:
22 "This de jure lifting of the embargo, by putting an end the
23 military superiority of the Bosnian Serb, could turn out to be a very
24 effective means of dissuasion that would lead the Bosnian Serbs accept
25 the Contact Group's peace plan."
1 My question is: First of all, was Morocco one of countries then
2 that took a contrary view to the view that lifting the embargo would add
3 fuel to the fire?
4 A. That is correct, Ms. Bolton.
5 MS. BOLTON: Can that document be marked as an exhibit, please,
6 Your Honour.
7 JUDGE MOLOTO: Madam Bolton, you gave us three ID number, ID
8 030648, ID 030654 and 030659. Do you want them given separate --
9 MS. BOLTON: No, the entire proceedings, Your Honour, actually I
10 think are a 22-page document which reflect the proceedings on --
11 THE REGISTRAR: [Via videolink] Your Honours, we've lost sound
12 from The Hague
13 MS. BOLTON: Sorry, can you hear me now? Was I too far from the
15 JUDGE MOLOTO: Can you hear us now?
16 THE REGISTRAR: [Via videolink] Your Honour.
17 JUDGE MOLOTO: Yes, Mr. Registrar.
18 THE REGISTRAR: [Via videolink] We cannot hear you from The Hague
19 JUDGE MOLOTO: You cannot hear us.
20 THE WITNESS: [Via videolink] Now we can.
21 THE REGISTRAR: [Via videolink] Now we can.
22 JUDGE MOLOTO: Now you can. Okay. Thank you so much.
23 THE REGISTRAR: [Via videolink] We can hear you now. Thank you,
24 Your Honour.
25 JUDGE MOLOTO: Thank you, Mr. Registrar.
1 MR. GUY-SMITH: If it's of any help, the ID number of this
2 document is 1D030648. The entire document is, as represented by
3 Ms. Bolton, 22 pages.
4 JUDGE MOLOTO: So do you want --
5 MS. BOLTON: The entire document to be made an exhibit please,
6 Your Honour.
7 JUDGE MOLOTO: ID 030648 is admitted into evidence.
8 THE REGISTRAR: [Via videolink] Your Honours, we seem to have
9 lost sound again. We could not hear you from The Hague.
10 JUDGE MOLOTO: You don't hear me now? Can you hear me now?
11 Testing, testing, can't hear me?
12 MS. BOLTON: Hello?
13 JUDGE MOLOTO: Okay. Hello, can you hear us? No, they can't.
14 THE REGISTRAR: Your Honours, this whole 22-page document is
15 admitted into evidence as OTP Exhibit P2618. Thank you.
16 THE WITNESS: [Via videolink] Can you hear us, Your Honour?
17 JUDGE MOLOTO: We can hear you, but I don't know whether you can
18 hear us.
19 [Trial Chamber and Registrar confer]
20 JUDGE MOLOTO: Let's get out of the movie and take adjournment.
21 We will come back and when we are reconnected.
22 --- Break taken at 2.44 p.m.
23 --- On resuming at 3.01 p.m.
24 JUDGE MOLOTO: Yes, Madam Bolton
25 MS. BOLTON: Thank you.
1 Q. Mr. Sacirbey, I have just a few more questions for you. Sir, you
2 were asked a series of questions by Mr. Guy-Smith yesterday about
3 allegations of criminal wrong-doing on your part dating back to 1980 and
4 the year 2000. Were you convicted of either of the incidents you were
5 discussing with Mr. Guy-Smith?
6 A. In fact, I've never even been charged. As it to the events in
7 1980, I went back and tried to refresh my memory. Actually, if I'm not
8 mistaken, that arrest took place for resisting arrest, and I subsequently
9 ended up initiating proceedings against the police force.
10 Q. Okay. And finally, sir, I want to go to a -- two documents you
11 were shown yesterday. I only have to show you one of them, I think.
12 Page 8142 of cross-examination, you were -- Mr. Guy-Smith put to you part
13 of a document which was paragraph 19 where it was indicating that the
14 border control authority was going to be given -- exercise its right to
15 go wherever it wishes without any form of prior notification.
16 MS. BOLTON: I'd like to have displayed Defence Exhibit -- I
17 believe it was 156. Mr. Registrar, I'll be looking for paragraph 20 of
18 that document.
19 THE WITNESS: [Via videolink] Okay. Thank you.
20 MS. BOLTON:
21 Q. Looking at midway through that paragraph, sir, there is an
22 indication that Yugoslav army liaison officer requested that the head of
23 the sector notify him of the movements of the mission's mobile patrols in
24 this region in order that he could provide adequate security cover. Was
25 that requirement in keeping with what had been contemplated in
1 paragraph 19?
2 MR. GUY-SMITH: That requires an opinion on behalf of this
3 gentleman who is not able to give one, outside of -- certainly outside of
5 JUDGE MOLOTO: Does this require expert --
6 MR. GUY-SMITH: I'm sorry [indiscernible] as a matter of fact, it
7 may or may not, but it's certainly outside of any permissible opinion
8 evidence and its irrelevant, and there's no foundation upon which he can
9 make such an opinion.
10 JUDGE MOLOTO: Madam Bolton, do you have a response?
11 MS. BOLTON: I don't believe it calls for an opinion,
12 Your Honour. My friends put to the witness yesterday that it was
13 contemplated that the border control would have no requirement of giving
14 prior notification. Don't think you need to be an expert to then read or
15 understand what has been indicated in Defence Exhibit 156 and comment on
16 whether that is in keeping or not.
17 JUDGE MOLOTO: I see your standing, Mr. Guy-Smith.
18 MR. GUY-SMITH: No, I was -- I was going to, then I stopped for a
19 minute because you were about to speak.
20 JUDGE MOLOTO: Okay. Then the question will be allowed. In
21 fact, you are saying this topic was discussed yesterday.
22 MS. BOLTON: It was.
23 THE WITNESS: [Via videolink] Ms. Bolton, I believe this was, in
24 fact, a matter of significant discussion because it was inconsistent with
25 the methodology that was envisioned by the provisions that were discussed
1 yesterday. So there was an inconsistency between the theory and the
2 application and this, of course, dealt with the application of the border
3 control measures.
4 MS. BOLTON: Thank you, sir, I have nothing further for you.
5 JUDGE MOLOTO: Thank you, Madam Bolton.
6 Mr. Guy-Smith, at the end of your cross-examination Judge David
7 asked a question. Do you have any questions arising from that question?
8 MR. GUY-SMITH: I do not.
9 JUDGE MOLOTO: Thank you so much.
10 MR. GUY-SMITH: I don't know if you have any questions or not,
11 Your Honour.
12 JUDGE MOLOTO: I don't have any questions. You don't have --
13 MR. GUY-SMITH: I'm not asking to do anything other than as a
14 matter of courtesy. I'd like to inform both the Chamber as well as the
15 Prosecution that we will be moving to withdraw the appeal that heretofore
16 had been filed with regard to the 90(E) issue because we are factually
17 satisfied with the answers that were received, and with regard to the
18 principle of law that exists, we don't believe that that needs any
19 further litigation. So I'm saying that because I don't know whether or
20 not the folks across the aisle are in the process of hurriedly trying to
21 put together a response or not. So I want to give them that
22 information so that they could put that into their repository of a good
24 JUDGE MOLOTO: Thank you. Thank you, Mr. Guy-Smith.
25 Needless to say, Madam Bolton, you don't have any questions
1 arising from the Judge's question because you may have covered it, if you
2 did want to, in your re-examination.
3 Mr. Sacirbey, at long last we have arrive. Thank you so much for
4 the time you took to come and testify. This brings us now to the end of
5 your testimony. You may -- you are now excused and you may stand down.
6 I hope you can find time to attend to the business you wanted to attend
7 to today. Thank you so much.
8 THE WITNESS: [Via videolink] Thank you very much, Your Honour.
9 JUDGE MOLOTO: And thanks to all of you out in New York,
10 Mr. Guirguis and Mr. Registrar. Thank you. You may stand down.
11 MR. GUIRGUIS: Thank you, Your Honour, it's been a pleasure.
12 THE REGISTRAR: [Via videolink] Thank you, Your Honour.
13 [The witness withdrew]
14 JUDGE MOLOTO: Madam Bolton.
15 MS. BOLTON: I don't believe we have another witness until
16 Monday, Your Honour.
17 JUDGE MOLOTO: Monday is the 20th, then we stand adjourned to
18 Monday the 20th at 9.00 in courtroom II. Court adjourned.
19 --- Whereupon the hearing adjourned at 3.09 p.m.
20 to be reconvened on Monday, the 20th day of July,
21 2009, at 9.00 a.m.