1 Wednesday, 8 November 2006
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 2.20 p.m.
5 JUDGE AGIUS: Madam Registrar, could you call the case, please.
6 THE REGISTRAR: Good afternoon, Your Honours. This is case number
7 IT-05-88-T, the Prosecutor versus Vujadin Popovic et al.
8 JUDGE AGIUS: I thank you, Madam, and good morning afternoon to
10 Everyone is here except Mr. Bourgon. Madam Nikolic, when is the
11 newly appointed co-counsel expected to be here?
12 MS. NIKOLIC: [Interpretation] Your Honour, I hope to meet with the
13 gentleman over the break and he would then join us in the second session.
14 JUDGE AGIUS: The Prosecution is Mr. McCloskey, and the rest I see
15 no significant absences, and Ms. Condon has returned to the front.
16 Okay. So any preliminaries? Yes, Mr. McCloskey.
17 MR. McCLOSKEY: Yes, Mr. President. There is an issue that I
18 would like to discuss briefly regarding the next witness. Could we go
19 into private session?
20 JUDGE AGIUS: By all the means. Let's go to private session,
21 please. We are in private session. Mr. McCloskey, go ahead.
22 [Private session]
11 Page 3768 redacted.Private session
14 [Open session]
15 JUDGE AGIUS: Thank you, Mr. McCloskey. We will be dealing with
16 the matter that you raised, in due course, as it becomes necessary.
17 There are two issues we would like to address your minds to. One
18 arises in the wake of a document filed by the Prosecution two days ago, on
19 the 6th of November, being a supplement to Prosecution motion for
20 protective measures for Prosecution November 2006 witnesses, in which you
21 did precisely what we had kindly asked you to do; in other words, describe
22 the protective measures for each one of those witnesses in the various
23 cases where they may have testified, if that is the case, and then -- so
24 that we would be in a position, then, to assess whether your request for
25 protective measures in this case ought to be granted, and along what
1 lines, to what extent. And, of course, this was done after the Defence
2 teams, through Mr. Haynes, explained that they had no objection for the
3 protective measures that were being sought by the Prosecution. This was
4 before you presented the chart, together with the supplemental document.
5 Now, we have examined the chart that is attached to the latest
6 document, and I have compared the protective measures that you are seeking
7 now with the protective measures that you sought in your motion of the
8 31st of October, and in at least seven of these witnesses, the protective
9 measures are not the same. You're asking for new protective measures,
10 basically. I'm not asking you to do anything else, but I just want a
11 confirmation that the non-opposition statement that Mr. Haynes made on
12 that occasion still applies, taking into consideration that the protective
13 measures sought now are slightly different from the ones granted -- asked
14 for before.
15 MR. HAYNES: Well, I don't see anybody turning around and I'm
16 going to say yes, it does.
17 JUDGE AGIUS: Okay. I thank you. So we'll provide accordingly.
18 This motion is being taken care of. In the meantime, if we run and get to
19 any one of these witnesses before we have handed down the written
20 decision, please draw our attention to that, Mr. McCloskey, and we will
21 confirm to you orally that the protective measures sought are granted.
22 The other thing, other matter, we wanted to raise is the
23 following: Again, this arises in the wake of, first, an invitation that
24 we made to you to come back to us on those 260 documents, additional
25 documents, that you were trying, seeking, to introduce, because there was
1 something which made it impossible for us to distinguish between one and
2 the other, and you have complied with that. And on the 3rd of this month
3 you filed your corrigendum and clarification of your filing concerning its
4 18th August 2006 motion for leave to amend witness list and 65 ter exhibit
5 list, a corrigendum to the first reply, giving all these details for the
6 record, because anyone who is following these proceedings wouldn't know,
7 otherwise, what I'm talking about.
8 In that corrigendum you identified 171 exhibits in annex A to the
9 corrigendum to the first reply, and to us, that should suffice to clear or
10 to provide us with the information that we were seeking. However, having
11 gone through your filing, we are unanimously agreed that your
12 clarification - and you are right if you think that we are checking on
13 you - goes beyond the identification of the Drina Corps documents. In
14 particular, we refer you and the Defence teams to paragraph 7 of the
15 corrigendum to the first reply, where you provide, according to us, a new
16 explanation regarding the remaining 90 non-Drina Corps documents which are
17 identified in annexes B and C.
18 We do not have a problem with that for the time being, but we also
19 realise that we have not given, we have not given -- the Defence have not
20 had an opportunity to respond or to be heard on this new explanation. We
21 are, therefore, drawing your attention, Defence teams, that you are
22 totally entitled to respond or to make your comments on this additional
23 explanation, which refers to no less than 90 documents that the
24 Prosecution are seeking to admit. So you will have the normal time, that
25 is, the usual time limits provided by the rules, if you so wish to make
1 your comments.
2 That exhausts the matters that we wanted to raise. Perhaps, if
3 you are in agreement, we could shorten it to a week instead of the usual
4 two weeks; the time limit for your response, in other words. It's not
5 something that should involve you in too much in-depth thought and
6 deliberations. So one week from today, all right? Thank you.
7 Now we can bring in the witness. In the meantime, I think you
8 need to draw the curtains. In the meantime, we'll ...
9 [Trial Chamber confers]
10 JUDGE AGIUS: Yes, Mr. Ostojic.
11 MR. OSTOJIC: Thank you, Mr. President, Your Honours. I did have
12 one motion. I spoke to my learned colleague at the Office of the
13 Prosecution earlier about this motion and once before. It involves this
14 witness, and I'll mention him by his pseudonym, unless the Court feels
15 that I should just go into private session. I don't --
16 JUDGE AGIUS: This particular witness that is coming in now?
17 MR. OSTOJIC: Yes, Your Honour.
18 JUDGE AGIUS: Yes, okay. Then let's go into private. I think
19 it's safer. But you don't need to mention his name. We know who it is or
20 who he is.
21 [Private session]
22 [Confidentiality subsequently lifted by order of the
23 Trial Chamber]
24 [Open session]
25 MR. OSTOJIC: With respect to Witness PW-138, Your Honour, the
1 Defence for Mr. Beara would like to ask the Court for a ruling to limit,
2 bar, and exclude certain testimony that the witness seemingly is going to
3 offer. It's difficult from our perspective to know when witnesses will
4 say certain things and when they won't, and the most recent example I hope
5 to share with you is yesterday's witness, when we had the proofing or
6 information sheet which had additional information that was not inquired
7 of by that witness through the Prosecutor.
8 So we are doing a pre-emptive strike, if you will, on this
9 witness, and the critical issue it involves is the reburial operation.
10 The indictment, the second amended consolidated indictment, specifically
11 mentions reburial of victims in one paragraph; that is paragraph 32 of the
12 indictment. In that indictment, it highlights who the orders came from,
13 who specifically were the people who were having knowledge and who were
14 providing assistance, and it delineates in there who the Prosecution, in
15 their belief, believes are culpable for that aspect of this case.
16 It proceeds to set forth in that same paragraph issues involving
17 supervision and facilitation, as well as overseeing of such, what they
18 call, exhaustive operations. Nowhere is our client charged in the
19 indictment, either in the specific paragraph number 32 or in any related
20 paragraph. They omit paragraph 32 in all the charges against Mr. Beara.
21 So we would ask, since it seems that there is some evidence this
22 witness, although we honestly, to be fair to the Prosecutor, doubt his
23 credibility, without getting into that argument, we don't believe that it
24 would be proper to ask this witness give testimony that the Prosecution
25 doesn't rely on, has not indicted our client on; and it would only -- it's
1 therefore outside the scope of the indictment, it therefore becomes
2 irrelevant, and it's unnecessarily prejudicial to our client, having no
3 probative value.
4 So we would ask this Court to instruct, by virtue of a motion, the
5 Prosecutor from eliciting that testimony as it may relate to Mr. Beara,
6 and also to instruct and to know in advance that I will be objecting on
7 that aspect if the witness does start to give such testimony, but also
8 asking the Court to strike that testimony from the record. Thank you.
9 JUDGE AGIUS: Your comments, Mr. McCloskey?
10 MR. McCLOSKEY: Yes, Mr. President. Mr. Ostojic was kind enough
11 to talk to me about that beforehand briefly. And I can say generally the
12 Prosecution does not know everything that everyone did and it's not always
13 charged in the indictment, so I would expect that there would be evidence
14 to come through this trial that may not have actually been charged. I
15 will take a look at the indictment and see if that was an oversight on our
16 part or it's a reflection of our view of the evidence. I can't recall
17 right now.
18 But in any event, the fact that a witness has some information
19 that may implicate one or more of the accused, in this case, Mr. Beara, in
20 one of the incidents related to it, I see there are no grounds to exclude
21 that in any way. Whether he is, in the end, convicted for it and whether
22 the indictment is valid on that point is, of course, another legal issue.
23 But I see no reason why evidence of such would be excluded. In fact, it
24 may be prejudicial to another accused. If this person testifies that, you
25 know, one accused is involved, that may suggest that another accused is
2 So I think to get you the whole picture, to see what this witness
3 is going to say, I think you should hear the whole story.
4 JUDGE AGIUS: Yes, Mr. Ostojic?
5 MR. OSTOJIC: Thank you. I don't really understand, with all due
6 respect, the argument or the comment in response, but I would just direct
7 the Court to look at the OTP versus Mrksic case as well as the Brdjanin
8 case. There, the Court specifically said the Prosecution cannot mould its
9 case as witnesses come in. And I think, Mr. President, you sat and wrote
10 the opinion on Mrksic, if I'm not mistaken and --
11 JUDGE AGIUS: I don't remember.
12 MR. OSTOJIC: I read it so I think you did. There, the Court
13 clearly said that the Prosecutor should be excluded and that it's clear
14 prejudice if it's outside the scope of the indictment, and they cannot
15 mould their case and that it would be unacceptable to allow the Prosecutor
16 to hold material facts, such as those that they've had, having interviewed
17 this witness in excess of five years now, knowing this information
18 purportedly in excess of five years, reinterviewing him, having him be a
19 witness in a trial two and a half years ago or three years ago in the
20 Blagojevic case, and coming now, in the middle of our trial, although
21 within three months since the commencement of our trial, or so, to raise
22 this issue and say, We're not sure if there was an omission, I will not
23 and cannot accept. It is irrelevant as it relates to my client; it is,
24 indeed, highly prejudicial.
25 The example the Prosecutor doesn't want to give is that he wants
1 to say, We should be allowed to bring in all kinds of dirty and irrelevant
2 material so as to tarnish and paint all the accused in negative light. I
3 hope that's not what he's trying to say, and I hope this Court will not
4 accept that, because we would never end this trial if we are playing those
5 types of tactics.
6 What I think is necessary is to look at it from a legal
7 foundation. We have the parameters of the indictment. Those are the
9 JUDGE AGIUS: Stop. I think we can proceed on this matter in open
10 session; don't you agree?
11 Yes, Mr. Josse.
12 MR. JOSSE: Subject to what my learned friends say, could I invite
13 the Chamber to consider whether the arguments that the Court has just
14 heard should be released to the public? There was nothing in those words
15 of either of my learned friends which needed to be dealt with in private
16 session. I understand the Court's caution. I'd invite the Court to
17 consider whether that part of the transcript should be released.
18 JUDGE AGIUS: This is why I'm stopping, because I don't think we
19 should be in private session.
20 So --
21 MR. JOSSE: The reason I ask is --
22 JUDGE AGIUS: No, no, you are 100 per cent right.
23 MR. JOSSE: -- it clearly has some general --
24 JUDGE AGIUS: You're 100 per cent right.
25 MR. JOSSE: -- some general application, what's just been said.
1 JUDGE AGIUS: Definitely. It's a legal matter that will be
2 decided in any case, so we might as well discuss it in open session. So
3 let's go into open session.
4 And I would ask you to briefly repeat, very briefly -- all right.
5 We can, if that can be done, in other words, if we can make the total part
6 of the transcript which was in private session available to the public ...
7 THE REGISTRAR: It can be done.
8 JUDGE AGIUS: Then we'll do it that way. So for those who are not
9 following the transcript but the proceedings, we are discussing whether,
10 due to the fact that accused Ljubisa Beara is not mentioned in paragraph
11 32 of the indictment, this witness should be allowed to testify on matters
12 related to reburial insofar as they may be applicable to the accused
14 We've heard the submissions of parties. Perhaps, Mr. Ostojic, you
15 might wish to address this point before we can start deliberating
16 ourselves. In paragraph 32, there are two statements that the Prosecution
18 One is in the first sentence, basically, in which the Prosecution
19 involves the VRS and MUP personnel in the reburial of victims, this being
20 an organised and comprehensive effort to conceal the killings and
21 execution in the Zvornik and Bratunac Brigade zones of responsibility.
22 And then towards the middle of that paragraph, after the words,
23 "Bodies from Glogova," there is the following assertion or statement of
24 the Prosecution: "This reburial operation was a natural and foreseeable
25 consequence of the execution and original burial plan conceived by the
1 joint criminal enterprise." And then it states who ordered it and who had
2 knowledge of it and assisted in the execution of this attempt to rebury.
3 So you could, perhaps, address this matter, and if Mr. McCloskey
4 would like to deal with that, too, it would help us deliberate.
5 MR. OSTOJIC: Most certainly, Your Honour. I'd be glad to. I
6 think the honourable Chamber has to look at two aspects to examine this,
7 and that is first to look at what the joint criminal enterprise was. If
8 you look at the beginning of the second amended consolidated indictment,
9 it clearly shows what the joint criminal enterprise was. Nowhere in those
10 first preliminary paragraphs or pages do they mention reburial of victims
11 as being any part of that enterprise or being criminal or being joined by
12 any members. It's solely and exclusively listed on paragraph number 32.
13 To further support that, I think if you look at the charges with
14 respect to Mr. Beara in paragraphs number 40 and 78, specifically within
15 those two paragraphs where they accuse Mr. Beara, they omit, they don't
16 forget about it, they purposely, intentionally, based on their
17 understanding of the evidence, they do not allege paragraph number 32 as
18 the all-inclusive paragraph of charges against Mr. Beara. If there was a
19 joint criminal enterprise claim against Mr. Beara for reburial of victims,
20 at the very least, it should have appeared in the preamble, not only when
21 they introduce them but set forth what those charges are; but also in the
22 various counts under paragraph number 40 and 78.
23 So although, at first blush - and I looked at that as well, Your
24 Honour - seemingly it does look as if that joint criminal enterprise broad
25 net would encompass that, I think in this instant case, given those two
1 paragraphs, given the prefatory remarks by the Prosecutor in the
2 indictment where they do not mention this aspect, and thirdly,
3 highlighting reburial of victims specifically within paragraph number 32,
4 does not fall within that compass, should not be included, and therefore
5 is outside the scope of the indictment.
6 JUDGE AGIUS: Yes, Mr. McCloskey?
7 MR. McCLOSKEY: Mr. President, when it comes to arguing specific
8 points of the indictment on these important issues, I'd like to have some
9 time to deal with it, though I'm not sure it's necessary for this
10 particular issue. I need to look through it and go back and see if I can
11 identify what the reasons are.
12 But I can say that it's the Prosecution's view that in a joint
13 criminal enterprise to murder thousands of people, that it's perfectly
14 foreseeable that those bodies may need to be hidden from the eyes of the
15 international community, and that's fundamental to our argument regarding
16 the joint criminal enterprise, as we have stated.
17 This material, the testimony of this witness, this witness has
18 implicated Mr. Beara from the beginning, to a degree, and so this is
19 nothing new. There are no surprises here.
20 But I believe we are going to have witnesses, especially when we
21 have people from the Bosnian Serb army or MUP, that may add additional
22 incriminating details. Someone may come and say, "Oh, and I saw accused
23 so and so do this or do that," that we don't have factually laid out in
24 the indictment. I don't understand an argument that that would not be
25 admissible in some way. I just -- I don't see it. Whether or not that
1 person would get held for that particular act down the road that may not
2 have been charged in the indictment is, of course, another matter. But to
3 limit the testimony that's come out over and over again, I don't
4 understand that legal argument.
5 JUDGE AGIUS: All right. Thank you.
6 Before you say what you have to say, let me put it to you in a
7 different manner, making myself a little bit clearer than I did before.
8 I'm just proposing to you to address the following, without, of
9 course, committing the Trial Chamber in any way. This is not a decision;
10 just proposing you an argument -- proposing to you an argument which we
11 would like you to deal with.
12 Count 1, which deals with genocide, envisages a joint criminal
13 enterprise to murder the able-bodied Muslim men, and that is then covered
14 from paragraph 27 to paragraph 29 and again from paragraph 30 -- in
15 paragraph 30, which deals with the various alleged murders, and then goes
16 on to opportunistic killings, and then goes on to reburial of victims, and
17 the destruction of men and women; and all this, put together, is the
18 explanation of how the Prosecution proposes to prove the joint criminal
19 enterprise was about.
20 If you could address this, in other words, because there is no
21 doubt that your client is mentioned in the beginning as part of the joint
22 criminal enterprise, and also taking part in genocide, and the -- as I am
23 putting it to you for purposes of discussion, the reburial of victims, as
24 explained in paragraph 32, was the final means by which the material
25 evidence of genocide could be hidden, eliminated, or kept away from
1 scrutiny. If you could address this.
2 MR. OSTOJIC: First of all, with all due respect, those are just
3 allegations and I don't believe that --
4 JUDGE AGIUS: Of course. This is why --
5 MR. OSTOJIC: Secondly, I think it's the position of this Tribunal
6 and every court and appellate court here, in its decisional authority,
7 that they prohibit a sweeping and over-broad indictment. So the
8 Prosecutor is required, in all the decisional authority, to set out their
9 material facts.
10 JUDGE AGIUS: Mr. --
11 MR. OSTOJIC: I'm getting to it.
12 JUDGE AGIUS: Let's keep two things separate. One thing is what
13 we are discussing now. The other thing is whether -- whether, if we have
14 ample evidence that your client was involved with the reburial of victims,
15 he can ever be found responsible for that. He is not charged with
16 reburial of victims; he's charged with genocide --
17 MR. OSTOJIC: I understand that.
18 JUDGE AGIUS: -- all right? So reburial of victims seems to have
19 been a process, according to the Prosecution, a process along the entire
20 journey of committing genocide. That's the allegation of the Prosecution.
21 MR. OSTOJIC: And I think that's why, with all due respect,
22 Mr. President and Your Honours -- you want me to answer the question in a
23 narrow fashion and I will. It is -- if you look at all the subparagraphs
24 leading up to the charges, even under subparagraph 30, where they have
25 subparts within each, all the accused are not mentioned in each and every
1 subpart. But their theory is that collectively perhaps that will
2 constitute the crime that they have charged them with.
3 In this case, they have not charged Mr. Beara with the crime of
4 reburial or any issues related to reburial of victims, so I can't say that
5 we -- it is not overreaching. In order to look at it as the Court wishes
6 me to, we have to look at the indictment as a whole, I think. And looking
7 at the indictment as a whole, it's clear that he's not charged, but it's
8 also clear that it's a material fact.
9 What I'd like to just cite to you, clearly, if I may, with your
10 permission, is the following: "The Prosecution is, therefore, expected to
11 inform the accused of the nature and cause of the case as set out above
12 before it goes to trial." Not during trial. "It is unacceptable for it
13 to omit the material facts in the indictment with the aim of moulding the
14 case against the accused in the course of the trial depending on how the
15 evidence unfolds."
16 Your Honour, you are on this case, Mrksic, which is - I'll tell
17 the Court the date - dated the 19th of June, 2003, with the Honourable
18 Judge Schomburg presiding, President, and Judge Mumba sitting as well.
19 So to answer your question, if 14 --
20 JUDGE AGIUS: Is it Mrksic?
21 MR. OSTOJIC: M-r-k-s-i-c, Mrksic. If there is 15, or so,
22 allegations which, in the Prosecutor's view, may constitute in a totality
23 a crime such as genocide, if half of them are not proven beyond a
24 reasonable doubt against the client, the argument can be made whether or
25 not it still constitutes, the remaining seven, enough to convict on
2 In this case, what I believe the Prosecution is trying to do with
3 this witness is to paint a picture against Mr. Beara because they have no
4 such evidence, as I think we've heard in their opening statement. And
5 they are trying to fill a vessel that they didn't properly and legally put
6 in their indictment.
7 JUDGE AGIUS: The point is not that. The point is whether the
8 Prosecution should be allowed to throw into the evidence and to the
9 record, in the record, evidence on facts which the accused is not made
10 answerable to in terms of the indictment.
11 MR. OSTOJIC: And I agree, Your Honour. That's the issue in the
12 case. The point --
13 JUDGE AGIUS: But we have to -- it's wider than that. It's wider
14 than that.
15 MR. OSTOJIC: And, respectfully, that's why I raised the issue
16 now, because I think in the prior rulings, you've invited us to raise
17 these issues in a more timely manner. I didn't expect it to take this
18 much time. I think the Prosecutor should have known whether he charged
19 him or not. I don't know if they are going to lead him into that
20 evidence. The proofing notes that we received yesterday do not indicate
21 that he's going to lead him on that. However, after I spoke to the
22 Prosecutor, he said his proofing notes are just supplementations of the
23 prior testimony and he intended to address that issue. That's why we
24 raised it with at the most convenient and earliest point.
25 JUDGE AGIUS: Any further remarks? We will need to withdraw.
1 JUDGE KWON: Can I ask a question to Mr. Ostojic? While it's a
2 separate matter whether the accused is charged with the reburial
3 independently, I leave it outside, but one can say that the Prosecution
4 does not have to try to elicit from the witness evidence related to what
5 is not charged by the indictment. But in the course of question and
6 answers, if the witness mentions what is not contained in the indictment,
7 then what's the basis or ground for the Chamber to strike out from the
8 transcript those parts?
9 MR. OSTOJIC: Well, I think if the witness is not led into the
10 evidence and he just blurbs that out, I think it would be very difficult
11 to comprehend the situation where, if you're leading a witness, they don't
12 address the issue of reburial other than as it relates to Mr. Beara. They
13 don't address it in any of the questions. They address it solely as it
14 relates to Mr. Beara. So it's inconceivable for me to see a scenario
15 where they would be talking about something in Potocari or Srebrenica or
16 Zvornik and all of a sudden they are going to discuss reburial and he'll
17 say, Oh, by the way, I think, although it's not first-hand, I think
18 Mr. Beara allegedly was involved in X, Y and Z. I think it's
19 inconceivable, but if that does happen, then we'll have to deal with it
20 when it happens and depending on the circumstances upon which it arose.
21 JUDGE AGIUS: I think the difference in this case is that we were
22 given prior notice already that this witness has information, it seems,
23 because I don't know obviously, has information on this issue, and you are
24 trying to pre-empt the matter, in other words, to have a ruling from us
25 whether the relative question should be put or whether he should be
1 allowed to answer those questions if they are put.
2 MR. OSTOJIC: I'm prepared to object as soon as I think the
3 witness will say it, based on the three objections: One, that it's
4 outside the scope of the indictment; two, that it's irrelevant; and three,
5 that it has no probative value. I just wanted to put it in better
6 context, because objecting while this witness is testifying and to,
7 perhaps, appreciate the basis of our objection needed additional time.
8 But I am prepared to object at that time.
9 JUDGE AGIUS: All right.
10 Yes, Mr. McCloskey?
11 MR. McCLOSKEY: Just briefly on the notice issue, Your Honours, I
12 know you've probably heard about all you want to hear on this. But we did
13 set out in our pre-trial brief, at paragraph 301, that -- 302, excuse me,
14 that Mr. Beara was involved in the reburial operation, and I think we
15 cited part to this particular witness.
16 JUDGE AGIUS: But he's not mentioned in paragraph 32.
17 MR. McCLOSKEY: Yes, and that's the -- that may be true. That
18 becomes a legal issue, as opposed to a fact that they've known of for
19 years now. I mean, you can imagine a scenario where the Prosecution had
20 to charge people with every possible crime that was mentioned by a
21 witness. I mean, these indictments would go on forever. And we have not
22 done that. Now, there has been plenty of notice, and I don't think this
23 motion has any grounding at all.
24 JUDGE AGIUS: Okay.
25 MR. OSTOJIC: Just one very small -- thank you.
1 JUDGE AGIUS: Yours will be the last intervention.
2 MR. OSTOJIC: Thank you, Mr. President, Your Honours. "The
3 Prosecution cannot cure a defective indictment by its supporting material
4 and pre-trial brief." Same case Your Honour was sitting on, Mrksic.
5 That's what they always try to do, is to say, We've given supporting --
6 it's not a question of notice. It's not a question of notice; it's a
7 question of whether it's within the scope of the indictment, whether that
8 material now, therefore, becomes irrelevant, and what the probative value
9 of it is. And that would be on paragraph 13 of that case.
10 JUDGE AGIUS: All right. I think we will need to -- yes, Mr.
12 MR. McCLOSKEY: I would love to have that debate on the amendment
13 of the indictment motion, but I think we are not there yet, if that has to
15 JUDGE AGIUS: All right. First, I think, Madam Usher, you need to
16 approach the witness and explain to him that there is an issue that is
17 being discussed which does not really concern him, as such, and I mean we
18 should put his mind at rest that there is nothing serious going on and
19 that he shouldn't worry. That's number 1. And explain to him that he
20 will be kept waiting for sometime, because this is not a matter I think
21 that we are coming back to you in five minutes, all right?
22 So let's have a break. We'll stay in the vicinity and we'll let
23 you know -- we shouldn't be away long, but certainly not going to be five
24 minutes. Thank you.
25 --- Break taken at 3.02 p.m.
1 --- On resuming at 3.26 p.m.
2 JUDGE AGIUS: Earlier on during the sitting, Mr. Ostojic, on
3 behalf of Ljubisa Beara, raised a matter with the Trial Chamber,
4 requesting that Witness PW-138, who is about to start giving evidence,
5 will not be asked questions, will not be allowed to answer questions
6 relating to reburials as they may relate to the same accused, Ljubisa
7 Beara. Basically, the reasons for such a request are found in the
8 transcript, starting from page 7 onwards. We are seized with that matter,
9 with that issue. We have heard also what the Prosecution had to say, and
10 our decision is as follows:
11 Basically, we are of the opinion that what we are being asked,
12 what we are being requested, to do on a pre-emptive basis is to restrict
13 evidence that the witness might give, which is, in our opinion, clearly
14 relevant to the subject matter of the indictment. We are of the opinion
15 that this is not an appropriate manner with which to proceed.
16 Our decision is that we will assess that evidence in due course,
17 if given, in due course, in the context of the indictment and come to
18 proper legal conclusion as to the accused's responsibility. In so doing,
19 we will not be improperly influenced, as professional judges, by this
20 evidence should we, at any stage, decide to disregard it.
21 That is our decision.
22 Now, let's bring the witness in, please.
23 MR. McCLOSKEY: Mr. President, I know I sprung this on you a bit
24 at the last minute, but what kind of warning, if any, would you like?
25 JUDGE AGIUS: In terms of the rules. This is -- I will give the
1 warning myself. Don't worry about it. And then, if you want to assure
2 him also on your part, you can do that, but ...
3 [The witness entered court]
4 JUDGE AGIUS: Good afternoon to you, sir.
5 THE WITNESS: [Interpretation] Good afternoon, Your Honour.
6 JUDGE AGIUS: On behalf of the Tribunal, I wish to welcome you.
7 You are about to start giving evidence very soon. Madam Usher is going to
8 give you the text of a solemn declaration that you are required to make
9 under the rules. This declaration basically states that, in the course of
10 your testimony, you will be speaking the truth, the whole truth, and
11 nothing but the truth. Once you have read it out loud, it will be your
12 solemn undertaking with us.
13 THE WITNESS: [Interpretation] Thank you.
14 I solemnly declare that I will speak the truth, the whole truth
15 and nothing but the truth.
16 WITNESS: WITNESS PW-138
17 [Witness answered through interpreter]
18 JUDGE AGIUS: I thank you. Please take a seat and make yourself
20 THE WITNESS: [Interpretation] Thank you.
21 JUDGE AGIUS: I know that you have testified already in another
22 case, and you know what protective measures are. You have been granted
23 two protective measures; namely, you will testify under a pseudonym, in
24 other words, your name and surname will not be used, but only a number
25 that you have been given; and, in addition, you will testify with facial
1 distortion, so other people outside will not be able to see your face.
2 I take it this has been explained to you already and it is to your
4 THE WITNESS: [Interpretation] Yes, thank you.
5 JUDGE AGIUS: Thank you.
6 There is an important matter that I wish to address before you
7 start giving evidence. You know that, in procuring your attendance, we
8 also granted you safe passage, in other words, ensured that you will not
9 undergo any proceedings while you are coming here or while you are
10 returning home. And that's because, I understand that in the past or
11 until now, you have been made aware that you were being treated by the
12 Prosecution as a suspect -- as a suspect. You are aware of that?
13 THE WITNESS: [Interpretation] Yes.
14 JUDGE AGIUS: Because of that, according to our rules, we are
15 bound to advise you of a right that you have, which is not an absolute
16 right, it's a qualified right, and this is a right not to incriminate
17 yourself, a right against self-incrimination.
18 Our rules provide that a witness may object to making any
19 statement, to answer any question, to make any statement, in other words,
20 which might tend to incriminate him. So if, at any time during the
21 proceedings, today and tomorrow, there are questions put to you which, in
22 your opinion, if you tried to answer them you would be incriminating
23 yourself, or possibly incriminating yourself, you can ask us, the Judges
24 on this Bench, to exempt you from answering the question. We may decide
25 to exempt you; we have a right to do that. But we also have a right not
1 to exempt you, and we have also a right to actually compel you to answer
2 such questions.
3 What would be the position? The position is also covered by our
4 rules. In such a case, the testimony -- the evidence that you would give
5 here shall not be used as evidence in a subsequent prosecution against
6 you, if there is one, for any offence except one: That is, if we catch
7 you perjuring yourself. Have I made myself clear?
8 THE WITNESS: [Interpretation] Yes, fully.
9 JUDGE AGIUS: So the ball is in your court. You will be asked
10 questions by both Prosecution and Defence. If, at any time, you wish not
11 to answer a question, please let us know and then we will decide; and if
12 we decide that you should answer the question, you can put your mind at
13 rest that that evidence will not be used in any subsequent criminal
14 proceedings against you, unless we are talking of perjury.
15 All right. Mr. McCloskey will go first. He will then be followed
16 by the various Defence teams. A moderate estimate, I think you should
17 expect to be here the full of today and also the full of tomorrow, at
18 least. We might even go into Friday.
19 Yes, Mr. McCloskey.
20 MR. McCLOSKEY: Thank you, Mr. President.
21 If we could start off by showing the witness the pseudonym sheet,
22 which is P02290.
23 Examination by Mr. McCloskey:
24 Q. And if you could take a look at that. Is that you?
25 A. Yes.
1 Q. Thank you.
2 JUDGE AGIUS: Show it. Anybody else wants to -- would like to see
3 it? All right. Let's have a look at it. Okay. Go ahead. That will
4 remain under seal.
5 MR. McCLOSKEY:
6 Q. Good afternoon, Witness.
7 A. Good afternoon, sir.
8 Q. I'm going to first ask you some background questions, so we'll go
9 into private session, you know what that is.
10 MR. McCLOSKEY: Just for a few questions, if I could, Mr.
12 [Private session]
11 Page 3794 redacted.Private session
13 [Open session]
14 JUDGE AGIUS: Yes, we are going to have a 20-minute break now.
15 --- Recess taken at 3.50 p.m.
16 --- On resuming at 4.12 p.m.
17 JUDGE AGIUS: Mr. McCloskey, please proceed.
18 MR. McCLOSKEY: Yes. I guess we should still be in private
20 JUDGE AGIUS: Yes. Let's revert to private session, please.
21 [Private session]
21 [Open session]
22 JUDGE AGIUS: We are in open session.
23 MR. McCLOSKEY:
24 Q. Can you tell us basically what the duties of the Bratunac Brigade
25 military police platoon were at that time?
1 A. The duties of the military police platoon were, first of all, to
2 provide security for the command post of the Bratunac Brigade, and to
3 deploy members of units who abandoned their own posts of their own accord
4 back to their original units.
5 Q. And how many men did the military police platoon have to do these
6 two things?
7 A. The numbers varied. Some 20 to 30 men, roughly.
8 Q. Okay. And did they have any permanent assignments at any
9 locations in and around Bratunac, besides the headquarters?
10 A. I don't know which period of time you're referring to, because
11 before the events surrounding Srebrenica, these were the only duties that
12 they carried out; namely, the shifts of duty at the Bratunac military
13 police headquarters; and at the command post, in the event the officers of
14 the Bratunac Brigade were going out to inspect the situation on the
15 ground, our officers were assigned to escort them.
16 Q. How about -- I am talking about the period of May, June, July,
17 1995, and so what about any duties at any check-points, like Zuti Most,
18 Yellow Bridge?
19 A. We had shifts of duty at the check-points along the boundaries
20 opposite the Srebrenica enclave.
21 Q. And can you explain what that meant. What were your
22 responsibilities regarding those boundaries, or the check-point?
23 A. The check-point was there also to control the convoys on their way
24 to Srebrenica. All the convoys were checked by the military police
25 platoon, which involved the checking of the accompanying documentation,
1 and whatever was not contained in those papers was not allowed past the
3 Q. And in that period, let's say the spring and early summer, leading
4 up to the fall of the enclave, do you have any recollections of any
5 material that the MPs would have taken off any convoys that weren't
6 supposed to be on them?
7 A. One convoy, which was on its way to Srebrenica, had one vehicle, a
8 jeep, a Toyota jeep, confiscated. I don't know when this other instance
9 took place, where a Volvo truck was confiscated, because it contained a
10 generator which was not part of the documentation accompanying the
12 Q. Okay.
13 MR. McCLOSKEY: If we could go into private session, again.
14 JUDGE AGIUS: So let's go into private session now, please.
15 [Private session]
11 Pages 3799-3807 redacted.Private session
12 [Open session]
13 JUDGE AGIUS: Yes. We are in open session.
14 MR. McCLOSKEY: Thank you.
15 Q. On this first day that I'm calling the first day of the Muslims at
16 Potocari, did you go to Potocari?
17 A. I went to the entrance of the Dutch Battalion's base. This is as
18 far as I arrived. I saw people gathered there. I saw General Mladic
19 handing something across a fence. There was a fence and he was handing
20 something to the people gathered there over that fence.
21 Q. Why had you gone there?
22 A. I don't recall why. I know that I reached as far as the entrance
23 to the Dutch Battalion's base. I don't know why I was there.
24 Q. And what else did you -- well, sorry. How long did you stay
1 A. Very briefly, maybe -- I don't know. Maybe five minutes, not more
2 than that.
3 JUDGE AGIUS: He hasn't told us what time of the day it was. We
4 just have the first day of the Muslims at Potocari but no time.
5 MR. McCLOSKEY: Thank you.
6 Q. Can you give us a time of day that you went to Potocari?
7 A. I don't know what time of day it was. I believe that it was in
8 the afternoon. I don't know, maybe -- I don't know how much -- what hour
9 it was, but it wasn't dark yet. It was day-time.
10 Q. So we don't necessarily need perfect times. No one remembers
11 really perfect times. But can you say early afternoon, mid-afternoon,
12 late afternoon? If you can.
13 A. I don't believe it was late afternoon, because the sun is close to
14 setting. Could have been mid-afternoon.
15 Q. Did you see any buses or big trucks in the area around the Dutch
17 A. From the base, in the direction of Potocari proper and the
18 factories there, there were some buses, and women and children were
19 advancing in haste towards these buses.
20 Q. Okay. Do you know if any buses had left the area of Potocari
21 towards Bratunac with women and children in them prior to your arrival in
22 Potocari that first day?
23 A. I believe they did. I'm not sure. Maybe two convoys had
24 departed. I don't know.
25 Q. Okay. What else did you see during that short period that you
1 were in Potocari?
2 A. I don't recall what else I saw. Nothing particular, nothing
3 special, that I would recall now.
4 Q. Did you see any Serb soldiers or policemen?
5 A. They were located at a distance from me; I don't know which
6 distance. But I paid no attention to them. I did not notice any
7 activities that would stick to my mind.
8 Q. Were you able to distinguish which army units or police units or
9 police squads, if any, were in front of you in Potocari?
10 A. I don't know who they belonged to. I said I did not pay
11 attention. I wasn't really looking at them. I wasn't interested in them.
12 Q. Okay. Did you --
13 JUDGE AGIUS: We are in open session.
14 MR. McCLOSKEY: If we could go into private.
15 JUDGE AGIUS: Okay. Let's go into private session.
16 [Private session]
20 [Open session]
21 JUDGE AGIUS: We are in open session.
22 MR. McCLOSKEY:
23 Q. Can you tell us what the basic duty office -- the basic
24 responsibilities and duties are of a brigade duty officer for the Bratunac
1 A. The duties of a brigade duty officer are to collect and record
2 received information, information coming in from the ground, from the
3 field; if possible, to notify superior officers of same; and to convey
4 orders if a superior officer sends an order to a unit, his duty is to
5 convey, relay, that order to that unit.
6 Q. Okay.
7 MR. McCLOSKEY: We better go back into private.
8 JUDGE AGIUS: Let's go back to private session, please.
9 [Private session]
11 Pages 3813-3821 redacted.Private session
3 [Open session]
4 JUDGE AGIUS: We don't have any redactions this time, so it's 25
5 minutes. Thank you.
6 --- Recess taken at 5.28 p.m.
7 --- On resuming at 5.56 p.m.
8 JUDGE AGIUS: Yes, go ahead, Mr. McCloskey.
9 MR. McCLOSKEY: We can try open session, I think.
10 JUDGE AGIUS: We are in open session.
11 MR. McCLOSKEY: Okay.
12 Q. We have one more hour, Witness, and that's so -- then we will be
13 able to break. Okay. You were driving a UN APC following a police car
14 from Konjevic Polje with some Dutch guys on it and Momir Nikolic and your
15 deputy; correct?
16 A. Yes.
17 Q. Okay. So what happens? What do you do?
18 A. When that vehicle made a turn on the road, and before that, we --
19 we had progress of 3 kilometres from the intersection that we departed
20 from, when that vehicle made a U-turn and started driving in the opposite
21 direction, I did so as well. I don't know. En route, we were stopped by
22 two civilians, probably Muslims. They stopped us on that road, I don't
23 know whether it was before the U-turn or after it, and they boarded the
24 APC. I did not notice them myself because I was tugged by Nikolic, by the
25 collar, and he told me to stop. When I stopped, I saw them boarding the
1 APC. They were standing by the road. And we returned to Konjevic Polje
2 with them on board.
3 Q. Can you give us an idea what time of day this trip started that
4 you were following the police car?
5 A. It was day-time, but I don't recall the exact hour. It could have
6 been in the afternoon, but I'm not sure.
7 Q. Okay. You said the police car made a U-turn and you followed it
8 in the APC; is that right?
9 A. Yes.
10 Q. Did you pick up the two Muslims before the U-turn or after?
11 A. I already said that I don't recall. It seems to be before the
12 U-turn but I'm not sure, and I said that I'm not sure.
13 Q. Okay. And did the speed of the police car change at all as it
14 went those 3 kilometres back to Konjevic Polje?
15 A. No. We maintained the same speed in both directions. I said
16 already that we were very slow.
17 Q. And was sound coming out of that loud-speaker, on the way back to
18 Konjevic Polje, from the police car?
19 A. I think it was, but I'm not sure. I cannot be sure.
20 Q. Are the Dutch soldiers still on the APC as you're going back
21 towards Konjevic Polje?
22 A. Yes, they were still on the APC.
23 Q. And may I ask you, were they on it or in it, the Dutch soldiers?
24 A. We were all in the APC. However, as I was driving the APC, the
25 flap was open. I didn't use the periscope, so my torso was sticking out
1 of the APC and so was that of Petrovic and Nikolic, on the turret.
2 Q. Could you tell if your passengers, your two Muslims and your two
3 Dutch, had any view outside of the APC?
4 A. I don't know now. They could not see forward. Maybe they could
5 see through some openings on the side, but I don't recall whether there
6 were any openings on that vehicle or not.
7 Q. Okay. Later on, I'll show you a picture, maybe, of one of those
8 vehicles. But right now, tell us what happens when you get back to
9 Konjevic Polje.
10 A. When we returned to Konjevic Polje, that vehicle went somewhere
11 and we parked on the same spot that we occupied before.
12 Q. You're talking about the police -- the police car went somewhere?
13 A. Yes.
14 Q. Okay. And did you notice anything around you? Any people?
15 Anything going on?
16 A. I noticed some people who were arriving there on their own.
17 Before we departed from Konjevic Polje, some people had gathered there, to
18 that intersection. There was a facility there. From the direction of
19 Bratunac, on the right-hand side is Zvornik; on the left-hand side is the
20 road to Milici. There was this building, a ruin. Today, it's a petrol
21 station. People would gather at that intersection and they were directed
22 by soldiers, I don't know how many soldiers there were there, whom I never
23 saw before or after, so the people were directed by those soldiers to a
24 building on the right-hand side of the road before the intersection. If
25 you go from Bratunac, there was a large building, a large facility. And I
1 believe that these were then transferred to Bratunac from that big
2 facility. But what happened then, I don't know.
3 Q. Okay. Were these people -- what ethnicity were these folks?
4 A. People, civilians. There were people wearing parts of uniforms,
5 for example, military soldiers' trousers, soldiers' blouse, something like
6 that, but incomplete uniform. Several of them were dressed that way.
7 Most probably Muslims, I never asked them, but most probably they were
8 Muslim men, people of Muslim faith.
9 Q. Now, you mentioned there is a gas station now at the place where
10 one of the buildings used to be that you're talking about.
11 A. Yes.
12 Q. Did you see any Muslims get put in that building where the gas
13 station is now?
14 A. As I said, they arrived there, and they were directed either by a
15 hand gesture, by the soldiers, there. I don't know. Most probably when
16 that facility was filled and no more people could enter, maybe 30-odd
17 people would be taken to that other facility.
18 Q. You saw this happening?
19 A. Yes. That was normal. They directed them and people went there
20 on their own. There was no torture; there was no mistreatment or
21 violence, I don't know what.
22 Q. So the first group of people went to this building where the gas
23 station now stands; is that right?
24 A. Yes.
25 Q. Okay. What else do you remember happened there?
1 A. The two Muslims that came there with us went to the building
2 where, today, a gas station stands and which used to be a gas station, and
3 members of the DutchBat disembarked from the APC and occupied positions by
4 the road. They sat down and they remained sitting.
5 Q. Did you see eventually where the Dutch -- the two DutchBat people
7 A. They sat there for a while, I don't know how long, until a convoy
8 approached from the direction of Bratunac, a convoy with women and
9 children. And at the head of the column was a white UN jeep with,
10 probably, members of the DutchBat. At the intersection, they stopped.
11 They were supposed to take this road, and they -- the two DutchBat
12 soldiers saw their own vehicle and probably asked them whether they can
13 board. That vehicle was escorting the convoy. They were occupying the
14 head position. They took their effects, boarded that vehicle, and
15 departed in the direction of Milici and who knows where else.
16 Q. Okay. So the two Dutch guys went with that other Dutch vehicle in
17 the direction of Milici.
18 A. When you say the other vehicle, you mean not the vehicle that we
19 drove to that spot. That was the only of their vehicles driving at the
20 head of the column, and the second vehicle in that column was a bus. So
21 the two DutchBat soldiers boarded that first vehicle in the column.
22 Q. Okay. Thank you. That clears that up.
23 And while you were there in Konjevic Polje, did you hear about any
24 particular Muslim prisoner?
25 A. I did not hear at that point anybody being captured and referred
1 to by the given or family name. But when I noticed that Nikolic wasn't
2 there, I asked where did he go, and was told that he had left to that
3 facility to the left-hand side of the road, not the one, the place, which
4 is now occupied by the gas station; and was told that there was a person
5 he was supposed to meet at that building. And Momir, after a time,
6 emerged from that place. I asked him, "Where did you go?" And he
7 said, "I took Resid Sinanovic to Bratunac."
8 Q. And had you heard of this name, Resid Sinanovic, before?
9 A. No.
10 Q. And did you later find out who he was?
11 A. I asked, to the effect, "Who is that person?" and he told me that
12 he had occupied a position at the Bratunac police station before the war
13 conflicts. Maybe commander, maybe deputy commander, maybe assistant
14 commander, I don't know which position he held, but he had a position in
15 the police.
16 Q. So who was it that told you that Sinanovic had been a police
18 A. Nikolic told me. When he returned, I asked him, "Where did you
19 go?" and he told me that he had taken this person to Bratunac. I never
20 knew who that person was. He probably recognised him and took him away.
21 Q. All right. So then what happens? What do you do next?
22 A. The next movement before our departure from Konjevic Polje towards
23 Bratunac was when somebody came and said that there was a wounded soldier
24 on the road, some 200, 300, 500 metres in the direction of Milici, and
25 that the APC had to go there - I believe that there were no other vehicles
1 at that spot - to pick up that wounded soldier, probably of the army of
2 Republika Srpska.
3 Q. So what did you do?
4 A. I set out in that direction. I asked a couple of soldiers
5 standing by, "Is that the place?" They said, "No, he was taken to
6 Zvornik. He was wounded, but there was a passing vehicle and they put him
7 in that vehicle." So I returned to the same intersection.
8 Q. Okay. Let me ask you, just briefly, you're familiar --
9 MR. McCLOSKEY: Perhaps we should go into private session.
10 JUDGE AGIUS: Yes. Let's go into private session, please.
11 [Private session]
11 Pages 3829-3843 redacted.Private session
20 [Open session]
21 JUDGE AGIUS: So, for the record, the examination-in-chief has
22 been ongoing in private session until now. It's time to adjourn.
23 JUDGE KWON: I have a comment to make.
24 JUDGE AGIUS: Go ahead.
25 JUDGE KWON: It's in relation to what you said, Mr. McCloskey,
1 which appears at page 71, line 2. I didn't hear that, comparing with my
2 colleagues, that's what you said, "Yes, no impeaching." I'd like to make
3 sure that at this point the Chamber hasn't made on that point.
4 MR. McCLOSKEY: I meant to say I didn't -- I wasn't intending to
5 impeach the witness.
6 JUDGE KWON: You said to the effect that there was a ruling that
7 impeaching is not allowed, but I'd like to make you sure, we haven't made
8 that ruling yet. I'd like to make it open.
9 MR. McCLOSKEY: Your Honour, I didn't mean to say anything about a
10 ruling. I don't remember -- I might have said something that sounded like
11 that, but I didn't hear a ruling and I didn't suggest there was a ruling.
12 JUDGE AGIUS: Certainly not in this case.
13 MR. McCLOSKEY: I didn't mean to, and I apologise.
14 JUDGE KWON: No, no, no.
15 JUDGE AGIUS: So we can safely adjourn, and that will be until
16 tomorrow, again in the afternoon.
17 Thank you. Have a nice evening.
18 THE USHER: All rise.
19 JUDGE AGIUS: One moment.
20 Witness, we are going to adjourn until tomorrow, as I have just
21 stated. Between today, now, and tomorrow, you are not to contact or allow
22 anyone to contact you and discuss or even mention any of the matters that
23 you are testifying upon.
24 THE WITNESS: [Interpretation] Yes.
25 JUDGE AGIUS: All right? Okay.
1 --- Whereupon the hearing adjourned at 7.02 p.m.,
2 to be reconvened on Thursday, the 9th day of
3 November, 2006, at 2.15 p.m.