080903ED

Page 25127

1 Q. Just a couple more follow-up questions, sir, on this issue of the

2 conflict. Now, in addition to this name-calling that we've spoken about,

3 the conflict also had a dimension, did it not, of one of the

4 personalities of President Karadzic on the one hand as Supreme Commander

5 and General Mladic on the other as the commander of the Main Staff of the

6 Army of Republika Srpska. Is that fair to say?

7 A. In very simplified terms, you may say so because Karadzic was the

8 leader of the civilian authorities and General Mladic was the leader of

9 the military -- structure of the military organs.

10 Q. And it was natural, was it not, then, for those closest to

11 General Mladic also to come in for that type of criticism and abuse from

12 the political leadership that General Mladic was the focus of?

13 A. Well, you see, when we are talking about people's names, of the

14 people surrounding General Mladic and General Mladic himself, they never

15 spoke openly in the public about these names because that would have been

16 counterproductive, I suppose. People, after all, supported the army

17 throughout the war, but I suppose that when they mentioned Mladic they

18 implied the entire Main Staff and all of his associates.

19 Q. Now, from your knowledge, sir, General Mladic also valued Colonel

20 Beara's work and trusted him as well. Isn't that correct?

21 A. I would say this is correct, yes.

22 Q. It almost goes without saying that the commander of the Main

23 Staff must trust his intelligence and security assistant commanders

24 deeply, correct, sir?

25 A. Your Honours, a true commander who has a good security organ

Page 25128

1 considers that security organ his right hand, his second in command.

2 There were obviously different commanders and different security organs,

3 of course. In any case, there was a high degree of mutual trust between

4 the two. For example, I personally never had any problems in

5 communicating with my corps commander. We always understood each other

6 well, and I always had his support when it came to my duties and my part

7 of the job.

8 Q. And, Colonel, as far as you know, General Mladic never lost that

9 trust in Colonel Beara during the war, did he?

10 A. Well, I don't think he lost that trust. If he had, then I

11 suppose that Naval Captain Beara would have been removed from his

12 position and replaced.

13 And if you will allow me, I would also like to say that I need to

14 apologise to the Trial Chamber, to yourself, and to the Defence.

15 Yesterday I did not say that Naval Captain Beara some two or three years

16 prior to the beginning of the war in Croatia was the chief of the

17 security department in the naval district. I did not want to omit that

18 deliberately, and I did not want to raise anybody's suspicion that I was

19 covering things up. This is a generally known fact, that he was

20 appointed chief and that he remained in that position until the beginning

21 of the war and that he remained at that position until the moment he

22 joined the Army of Republika Srpska.

23 I hope you will take this into consideration and that you will

24 accept my apology for not having mentioned that yesterday.

25 Q. Sir, just speaking for the Prosecution, if that's your greatest

Page 25129

1 infraction, you're are way ahead of the rest of us.

2 Now, to your knowledge, sir, did General Mladic ever lose that

3 trust in Colonel Beara after the war ended?

4 A. There was a shake-up after the war. All the men in the Main

5 Staff were removed from their position; the General Staff of the Army

6 Republika Srpska was established; and a new person, General Coric

7 [phoen], became the chief of the General Staff; then General Savcic

8 became the chief of the security administration. In other words, all the

9 people who were in the leading positions during the war were removed from

10 their positions after the war. There was a general shake-up in the

11 structure of the command.

12 Q. Okay. If we may have 65 ter 3515, please, and we will be looking

13 at pages 3 of both the English and the B/C/S with respect to this

14 document. If we could just hang on to page 1 - I'm sorry - for just a

15 moment, so we can acquaint the witness with it.

16 Sir, this is a letter from General Manojlo Milovanovic that he

17 wrote on September 29th, 2004, to the government of the Republika Srpska,

18 and it has to do with a number of topics that he was addressing them on,

19 including the whereabouts of the Main Staff archives and some other

20 issues. What I'd like to do is turn your attention to just one portion

21 of the paragraph on page 3 as I mentioned before, please.

22 Do you see the paragraph that begins: "At the beginning of 1997,

23 the then-acting president of the republic, Mrs. Biljana Plavsic, made a

24 rash decision..." Do you see that, sir.

25 A. Yes, I can see that.

Page 25130

1 Q. Okay. General Milovanovic refers to the decision to relocate the

2 new General Staff. I think that's what you were just referring to a

3 moment ago. Is that correct?

4 A. Yes, that's correct. At that time, the General Staff was moved

5 to the Bijeljina and from there it was moved to Banja Luka.

6 Q. Then it goes on further: "...and retire four generals from the

7 former Main Staff, one of whom was General Djordje Djukic, who died eight

8 months before his 'retirement' after being maltreated in prison in The

9 Hague."

10 Do you recall, Colonel, who the other three generals were that

11 were retired?

12 A. You see, I remember the event like I told you. The complete war

13 staff was removed from their positions. President Plavsic set up a

14 completely new leadership. I don't remember which three generals were

15 pensioned off. If we are talking about 1997, that was a power struggle

16 and a little puch that Biljana Plavsic staged in order to get rid of

17 Krajisnik and the others. I must say that when the war began I was

18 major, and when the war ended I was lieutenant-colonel. After the war, I

19 was a small fry, to put it that way, so I didn't know what was happening

20 in the office of the president or what General Milovanovic wrote in any

21 of his documents. And as for this document, I never saw it before.

22 Q. Okay. If we read on, it says that: "General Mladic and I put

23 ourselves at the disposal of the VRS for up to six months and for the

24 other six months to the Yugoslav Army." So that's about a year. We're

25 talking about here -- at the beginning of 1997, there's a reference, and

Page 25131

1 then sometime after that we're talking about a year. My first question

2 is, you served as assistant Minister of Defence under General Milovanovic

3 from, I think, 1998 to 2001. My question is, if we read on it says that:

4 "General Mladic stayed in Crna Rijeka with his security guards who were

5 supposed to protect him from being arrested by The Hague Tribunal.

6 Biljana Plavsic signed a decree about this. In the beginning the

7 commander of that powerful security group was Colonel Ljubisa Beara

8 because Mladic wished it so then it was Colonel and later Dragan Lalovic

9 also because Mladic wished it so."

10 Do you know anything about this topic, this statement that

11 General Mladic wanted Colonel Beara to be in charge of his personal

12 bodyguard protection team after he was indicted by The Hague? Do you

13 know anything about that, sir?

14 A. No. I know about it in the sense that this Colonel Lalovic was

15 at the then-security of General Mladic, but I didn't know that General

16 Mladic ever asked for Colonel Beara.

17 Q. So by the time you arrived, is what you're telling the Court that

18 Mr. Lalovic was in charge, as the letter says?

19 A. No, I didn't -- well, as a matter of fact, I didn't understand

20 what you were asking me.

21 Q. Okay. Let me just go back --

22 A. I didn't understand. My arrival, Lalovic's arrival, I'm not

23 sure. I had no money in the game.

24 Q. Okay. Your previous answer was: "I know about it in the sense

25 that this Colonel Lalovic was at the then-security of General Mladic, but

Page 25132

1 I didn't know that General Mladic ever asked for Colonel Beara."

2 So my question to you, sir, was, by the time you showed up at the

3 ministry of Defence in 1998, what you're telling the Trial Chamber is

4 that at that time it was Colonel Lalovic as far as you knew who was in

5 charge of the protection detail or group for General Mladic as it says

6 here in the letter?

7 A. Yes, most likely.

8 Q. Now, may we have - and I'd like to turn to a different subject

9 now - 65 ter 3661, please. While we're waiting for it to come up, I can

10 tell you that it's going to be an order for further operations from the

11 commander of the 2nd Krajina Corps. You were shown this document during

12 your 2004 interview in Banja Luka. It's an 8 June 1992 order for further

13 operations. Do you see the document in front of you, sir?

14 A. I do, and it was shown to me during the interview in 2004.

15 Q. Okay. And if we just quickly go to page 5 of the English and

16 page 4 of the B/C/S, we can see at paragraph 8 where there's the section

17 on intelligence and security measures, it's divided into paragraph A,

18 intelligence measures, and paragraph B, security measures, and the

19 security measures continue onto page 5 of the B/C/S; both are paragraph

20 8. And then there's another section; if we go to page 7 of the English

21 and page 6 of the B/C/S that discusses rear security, and I'll just give

22 you a moment to look at that section on rear security.

23 Does this help refresh your recollection about being shown this

24 document in Banja Luka, sir?

25 A. Yes.

Page 25133

1 Q. And I'm not going to ask you questions so much about the military

2 objectives or so forth that are contained in this order. I'm more

3 interested in what you told us about the process that was involved. You

4 said at pages 55 to 56 of your interview, and I'll just save some time

5 and read this short passage, I quote: "The introduction of an order such

6 as this is probably from a directive or an order by the Main Staff

7 because it speaks about a wider area and the situation on the territory

8 outside of the area of responsibility of the corps. An order like this

9 would have been approved by the Main Staff before it was actually

10 initiated."

11 After you have a chance to process the translation, sir, do you

12 have anything to add or change to that answer that you gave in 2004, and

13 if not, I'll move on to a related topic.

14 A. No, nothing to add or take away, for that matter.

15 Q. Now, if we may have 65 ter 3625, please.

16 You also spoke during your interview about your knowledge of the

17 process by which the Main Staff passed on operational directives, and

18 I'll just wait until we have both the English and the -- okay. Well --

19 okay. We have a translation in your own language of this portion that I

20 wish to read to you. At page 37, y ou were asked the following question:

21 "How does the Main Staff take and transform political strategic objectives

22 into military operational directives to go to the corps? How does that

23 happen?"

24 Now, your answer was quite detailed, so as I said we have this

25 B/C/S transcript for you of the section of your interview to read along.

Page 25134

1 You said, and this begins at page 37 of the English, line 31: "I don't

2 know these directives, but like any other member of the command I was

3 informed of their content. But if you will allow me, I cannot remember

4 the contents of these directives because it has been 12 years. The way

5 to transform the decision of a political leadership into a military

6 directive is the following. I'm giving an example..." And you say:

7 "For instance, you've mentioned here the establishment of borders on the

8 rivers Una and Neretva, which basically means that the 1st Krajina Corps

9 and the 2nd Krajina Corps were issued with tasks or directives to

10 establish a border, or in other words, positions on those two rivers, and

11 if the positions are not already there, then the unit is issued with the

12 task to plan to capture those positions to take those positions. And

13 it's up to the corps command to device the combat operation in order to

14 fulfill this directive. And this means that the Herzegovina corps would

15 be issued with the task for the River Neretva and so on. So for the

16 corridor it would be the east Bosnian and the 1st corps and so on."

17 Now, sir, there you're referring to one of the six strategic

18 objectives issued by the Republika Srpska National Assembly on 12 May

19 1992. You were shown that during your interview, and that particular

20 strategic objective number 4 called for establishing a border on the Una

21 and Neretva rivers. Do you remember that, sir?

22 A. Yes.

23 Q. Now, just picking up in the English, it's page 38 and line 15,

24 and if you can continue along, you were asked the question: "If I have

25 it kind of right here, the Main Staff then sets the big picture based on

Page 25135

1 strategic goals and gives the corps commander certain tasks to carry out

2 but leaves the corps commander with the authority to get that done in the

3 best way that he sees fit?"

4 And your answer was: "So, yes, you see, the Main Staff was the

5 strategic command. And it gives global tasks which are in accordance

6 with the decisions made by the political representatives with the

7 policies. Because the politics governed us, as it did many other armies.

8 So, it's usually the way that in the introductions to the directive,

9 you're given an overview or a dissection of the overall combat situation

10 on the territory of the entire VRS. They probably referred to this

11 decision of the assembly as well. I don't know whether there were any

12 orders by the Supreme Commander or the Supreme Command in the war, and if

13 there is an order issued by the Supreme Command, then the Main Staff

14 invokes that order. So basically, what they're doing is they're creating

15 the widest possible foundation or basis. And as you go further down the

16 levels, the tasks narrow down and they become more and more concrete.

17 Because if they issued the 2nd Krajina Corps with the task to come out on

18 the banks of the Una River, then this must have been, like, one or two

19 sentences at the most. And now the 2nd Krajina Corps command assesses

20 the task. They assess their own manpower, forces, and positions, the

21 combat positions that they know where they are and what they are. They

22 assess the enemy forces, and through that comes into life the

23 decision-making process, and the decision is made on the use of the units

24 in order to fulfill the task that was issued through that directive. The

25 decision is made and signed by the corps commander because he's the

Page 25136

1 exclusive one who is in charge of that. That's what makes him the

2 commander. And this decision, this order for the use of the units is

3 then sent to the lower-ranking units which in our case were the brigades

4 or regiments because we didn't have any other. So when a brigade

5 receives such an order, such a decision, such a task for the carrying out

6 of combat activities, then they make their own; then they issue their own

7 order decision -- order or decision because - how should I say this - the

8 corps order is a bit -- is a bit rough for them."

9 There's some further discussion, and you are asked the

10 question -- this is at page 39, line 24. The question posed to you by

11 the investigator was: "So the task gets more specific as you go down

12 this funnel that you described from global?"

13 And you answer: "More concrete, yes."

14 You're asked the follow-up question: "From global directives to

15 operational directives, to brigade-level combat operations orders down to

16 the very platoon that's actually -- take that hill?"

17 And your answer, and I'm just going to read this last portion and

18 then follow up with a question: "Yes. Yes, you've got two trenches

19 here, three, and that's what you do, and it all has to be, of course,

20 synchronized because the brigade has to submit its decision to the corps

21 command for inspection, and the commander of the corps has to approve

22 their decision because they have to stand up and fight for their --

23 defend their decision. And it was the same with the corps command. They

24 had to send their decision to the Main Staff for approval, so it was like

25 a reverse process."

Page 25137

1 Now, sir, when you said "reverse process" during your interview,

2 can you tell the Trial Chamber what you meant by there was a reverse

3 process?

4 A. Your Honours, first and foremost, when I said "reverse process,"

5 I meant, for example, when a brigade makes its decision on the operation

6 of its forces, the commander needs to defend that decision before the

7 corps commander and before the corps command, either the staff or

8 command. In any case, the commander has to hear him out and needs to

9 approve of his decision.

10 Once all brigade decisions have come in, all of the brigade

11 commanders need to come in to defend them, and only after the process the

12 brigade commanders can call up meetings and issue orders to battalion

13 commanders and then further down the chain to companies and so on.

14 The same goes for the corps commander. Once it has all been

15 dealt with at the brigade levels, the decision made by the corps

16 commander on its operation needs to go to the Main Staff to take

17 personally that decision there and argue in its favour before the Main

18 Staff commander for him to approve it. That's roughly put. You've read

19 out quite a lot, but that's the decision-making process, or rather,

20 drafting orders and directives of the Main Staff.

21 Q. Now, let me just read to you one more portion, a short paragraph

22 on page 40 of the English, and this is also in the B/C/S translation

23 before you. You said at line 14: "This whole decision-making process of

24 the lower levels cannot even begin without the Main Staff approving the

25 decision of the corps commander. Only when the Main Staff approves the

Page 25138

1 decision of the corps command can they then start formulating the

2 decisions, the orders to the brigades and the lower commands. In the

3 same fashion, the brigade cannot order anything to the battalions without

4 the corps command having approved it." That's basically what you just

5 told us a moment ago, sir.

6 Now, you continue on: "What you ask issue is a preparatory

7 order, which basically means that you withdraw people, you bring people

8 back from leave, that you increase the supply of ammunition, increase the

9 supply of food and other combat necessities. So these are the first

10 indications whereby you know that something important is underway."

11 Is a preparatory order, Colonel, sometimes referred to as a

12 warning order, or are those interchangeable -- or are those different

13 things?

14 A. You put it correctly. There were preparatory orders.

15 Occasionally, they were put in writing. Such a preparatory order can

16 include tasks for units to prepare for the forthcoming tasks. Such tasks

17 in my understanding are roughly described only in such preparatory

18 orders. The preparatory orders can encompass a number of measures and

19 activities that a certain unit needs to take in order to raise its

20 combat-readiness to as high a degree as possible in order to be ready to

21 fulfill its ensuing tasks.

22 I don't know whether there's any particular time specified in a

23 preparatory order. I can't tell you that. I'm not an expert in that

24 area. As a matter of fact, I've also mentioned some of the elements of

25 particular interest for security people when they want to see if there

Page 25139

1 was something going on, if there are any preparations. All these

2 elements have to be gone through for a unit to be prepared in the best

3 possible way for any future tasks. This includes reconnaissance at all

4 levels, and there's also something that we call command reconnaissance.

5 Q. Okay. In your experience, sir, do those preparatory orders

6 require Main Staff approval, or are those orders something that can be

7 issued by the corps by itself; in other words, if the Main Staff was

8 happy to leave that in the hands of the corps without having to sign off

9 on it?

10 A. It is my opinion that the Main Staff also issued such preparatory

11 orders. I cannot be 100-percent certain, but I can presume that most

12 likely it was done. There were preparatory orders issued to the effect

13 that some military operations were to take place. Staff officers could

14 tell you more about the process of everything you've been asking me. In

15 any case, I think there were such preparatory orders in place.

16 Q. And at your level, Colonel, at the corps level, just based on

17 your experience, when the corps issued a preparatory order, was that

18 something that had to be approved by the Main Staff, or did the corps

19 have the authority to begin issuing such preparatory orders by itself?

20 A. Your Honours, if a corps receives a preparatory order from the

21 Main Staff, then they issue their preparatory order at their level and

22 send it down to the brigades. I don't think they needed any special

23 approval for that. A preparatory order in my view includes the corps

24 being familiarized with the task, and then in turn it has to draft a

25 preparatory order at its level for its subordinate units, much as would

Page 25140

1 be the case with combat orders. After having received an order from the

2 Main Staff, they no longer needed any special permission to send to down

3 the channel -- the chain.

4 Q. Now, Colonel, this may seem like an obvious question, but as a

5 member of the corps command, although you said you can't recite the

6 number of directives that were passed on to the corps by the Main Staff

7 or maybe the subject matter of each and every one of those directives, at

8 the time you would have -- and you were informed of their content; isn't

9 that correct?

10 A. In the course of the interview, I said something that I will

11 repeat now. I wasn't familiar with it, and I don't know what the number

12 of such directives was. I don't know, but I can presume that not all

13 directives necessarily had to do with the same part of territory. They

14 may have been wider or narrower in scope, but I don't know that. What I

15 do know is that those directives that had to do with the area of

16 responsibility of the corps, as a command member I was familiar with

17 their contents and the tasks that the corps units were to implement.

18 This would usually include the whole corps staff and command. They would

19 meet and the corps commander would read out the directive, familiarizing

20 us with its contents. Then we would go on to discuss how we could

21 implement that directive the best way possible.

22 Q. Now, when we speak of a corps-wide operation such as the one we

23 looked at a few moments ago, that order for further operations from June

24 of 1992, prior to such an operation there will be security and

25 intelligence assessments made by the corps command in connection with

Page 25141

1 that operation. Is that fair to say?

2 A. It is customary in the work of commands that such assessments are

3 made and security and intelligence support needed to be provided as

4 separate items in any orders. The intelligence organ was supposed to

5 provide any information they had about the enemy and their posts, and

6 pursuant to that data, decisions were made on how to deploy units, which

7 axis to engage, which would be the main units to implement the tasks, and

8 so on and so forth.

9 The security organs were supposed to provide an overview of the

10 security situation in the corps territory. As I was saying then,

11 intelligence personnel covered from the point of contact between us and

12 the enemy and then into enemy territory in depth, whereas security or

13 counterintelligence organs focused their activities on the area of the

14 corps itself. We provided elements that had to do with intelligence,

15 security support by way of an attachment. It was one of the tasks of the

16 security organ. We would provide that attachment that was supposed to

17 corroborate the item of any particular order that had to do with

18 intelligence and security.

19 Q. And this important security and intelligence information, this is

20 both coming up from the subordinate units and taking yourself as a member

21 of the corps command staff. It's coming up to you, but it's also coming

22 down to you from the Main Staff security administration because it is

23 receiving similar information from other corps which might impact on your

24 corps' activity; is that also correct?

25 A. You're right. This is how our information system worked. The

Page 25142

1 information was conveyed from the reconnaissance platoons in the brigade,

2 would be delivered to the corps command, and as for us, we collected

3 intelligence every day and we would convey this intelligence to the

4 security and intelligence sector. And every day in return we would

5 receive from them information and intelligence that provided us with the

6 entire picture of the events in the entire territory of Republika Srpska

7 as well as the information that contained elements relative to the zone

8 of responsibility of our corps. If there was such information, then we

9 would use it to devise our plans of operation.

10 Let me just add to that that the intelligence that we see from

11 the Main Staff was discussed at every corps command meeting. First, the

12 intelligence would be read out loud and then discussed. In other words,

13 everybody was made aware of what the intelligence was.

14 Q. And because of the importance of this information, this is one

15 reason why the corps could not withhold any intelligence or

16 security-related matter from General Tolimir. Isn't that correct?

17 A. We couldn't do that, no.

18 Q. In fact, when you were asked the following question during your

19 interview -- let me just read it to you. It's from page 95 of the

20 English: "Is there any reason you can think of where there would be any

21 secrets from General Tolimir, any intelligence or security-related

22 matter?"

23 You answered: "In my case, there definitely wasn't any. I can't

24 tell you anything about other organs, but in principle there shouldn't

25 have been any because, also, General Tolimir would have surely found out

Page 25143

1 if something had been kept a secret. And in that case, I wouldn't like

2 to be in the skin of the person who tried to keep secrets from him."

3 Do you have anything to add or change or subtract, as you said,

4 from your answer, or do you stand with that today as well?

5 A. I would not wish to add or underline anything with regard to the

6 answer that you have just read out.

7 Q. Now, sir, I want to move to a different area. You referred

8 yesterday during your testimony - and this is at page 25071 - to an

9 occasion when your commander told you to prevent units from deserting

10 their positions, and you told the Trial Chamber that that wasn't your

11 responsibility and that was an example that you gave of how things

12 weren't working properly in your field. You referred to: "The commander

13 would often go and tell me to bring back a unit from its position or try

14 to -- and prevent people running away from their positions or to go and

15 disarm paramilitary units if they turned up."

16 And we'll talk about paramilitary units a little later, but with

17 respect to this issue of soldiers deserting their positions, if it wasn't

18 your responsibility, whose responsibility was it to make sure that

19 soldiers weren't deserting their units and maintain their will to fight?

20 A. First and foremost, this would be the responsibility of the

21 commanders and commandeers of these units because they were the supreme

22 organs of security in their respective units and in charge of the morale

23 of the -- in those particular units. Depending on the ability the

24 commander to raise the morale of his people to stay in positions and to

25 fight, depending on their abilities and their personal example, their --

Page 25144

1 the situations varied. Some were able to do that, and therefore, there

2 were units that never abandoned their positions because the system of

3 command and control was good. But there were also other cases where the

4 system of control and command was not so good, and there were frequent

5 cases of desertion. I had a situation that a complete brigade abandoned

6 the positions. They were resubordinated to us. I went to their

7 positions, and I saw that their commander was actually leading them, and

8 there was nothing I could do. To cut a long story short, where the

9 command and control was functioning well and where the commander was in

10 charge and had the authority over his soldiers, there was no wilful

11 abandonment of the frontlines by the troops. Where the system was

12 impaired, there were obviously very frequent instances of desertion. It

13 was even a wide-scale phenomenon in some units.

14 MR. THAYER: Mr. President, I see we're getting near the break.

15 I'm about to start a substantive area with some documents. If we can --

16 JUDGE AGIUS: I thought you were going to tell us you were about

17 to finish. You've gone, I think, beyond your two hours that you had

18 asked.

19 MR. THAYER: I have, Mr. President. It's --

20 JUDGE AGIUS: So I would suggest that you try and cut it down and

21 conclude, please.

22 MR. THAYER: I will do that over the break, Mr. President. I

23 will need a little bit more time with the Court's permission. It's

24 moving a little slower than I had estimated through these important

25 areas.

Page 25145

1 JUDGE AGIUS: Well, I will put "important" in inverted commas.

2 Let's have the break now, 25 minutes, and in the meantime, please, if you

3 could work out for us the time that Mr. Thayer has been cross-examining

4 this witness. Thank you.

5 --- Break taken at is 3.40 p.m.

6 --- On resuming at 4.09 p.m.

7 JUDGE AGIUS: Mr. Thayer.

8 MR. THAYER: Thank you, Mr. President.

9 JUDGE AGIUS: Go ahead.

10 MR. THAYER:

11 Q. Colonel, I read to you in connection with your testimony about

12 the process of translating the Main Staff, the directives the Main Staff

13 passed on into concrete military action. I read to you a long portion of

14 your statement that you read along as well. I just want to first ask

15 you, do you stand by what you said to the investigators in 2004?

16 A. Yes, I stand by it.

17 Q. Now, let me move on quickly, my last couple of questions.

18 You said in your OTP interview, also, that the state of combat

19 morale is extremely important within a fighting unit. Can you describe

20 for the Trial Chamber the importance of cooperation between the morale

21 organs and the security and intelligence organs?

22 A. Your Honours, I would like to clarify some things. Actually, I

23 would like to say that both the security organ and the assistant for

24 morale are members of the same team, and obviously, there must be

25 cooperation among the team members. People obviously have to communicate

Page 25146

1 and exchange information among themselves. They are almost duty-bound to

2 do that within the command. It is common practice, if that answers your

3 question, sir.

4 Q. And why was it important to have that communication between the

5 morale organs and the organs for security and intelligence?

6 A. In order to understand this question, one has to say that during

7 the process of assessing the state of morale in a unit, a lot of elements

8 have to be analysed as having impact on the state of morale. One of them

9 is security or the security threats. One of those is obviously

10 desertions, abandoning positions, throwing up weapons. All these are

11 forms of behaviour that have a negative impact on the status of morale,

12 which have to be taken into consideration.

13 It is common practice to have meetings of the command where

14 everybody provides information pertinent to their respective sectors and

15 shares problems from their own domain, and this is the first instance at

16 which the information on the problems in the unit are exchanged. One of

17 those problems has to do with the state of morale in that unit. I don't

18 know whether I've made myself clear enough.

19 Q. Is it fair to say, Colonel, that the security situation affects

20 the morale, and the morale situation affects the security situation?

21 A. Yes. A correlation of that sort may be taken into account. In

22 practice, that was the case, and of course, you can also put it that way.

23 Q. Now, again, just taking you directly to your 2004 interview. You

24 were asked the following question at page 102: "We've talked about

25 General Milan Gvero before, chief of morale, religious and legal affairs.

Page 25147

1 Now, he issued thousands of reports about the current political

2 situation. Now, much of what is in your report is also of political

3 nature, so were there times when you would read General Gvero's reports

4 and extract part of those that you felt relevant for the intelligence

5 report?"

6 And your answer was: "I don't exclude such a possibility. It

7 depended on the character of information we were drafting. It depended

8 on its contents and the goal that we had that we wanted to achieve with

9 that information. I believe, and I know, that General Gvero and Tolimir

10 cooperated very closely, so I don't exclude the possibility that in his

11 reports Gvero would use Tolimir's information and Tolimir, Gvero's, and

12 they would basically fill in the gaps."

13 Do you stand by that answer that you gave in Banja Luka, sir?

14 A. Yes, I stand by my answer.

15 Q. Now, just two quick final questions, sir. You referred to

16 paramilitaries at one point in one of your answers that --

17 JUDGE AGIUS: Yes, one moment. Mr. Josse.

18 MR. JOSSE: Could my learned friend read the next question and

19 answer. We suggest that that is out of context.

20 JUDGE AGIUS: Yes. Mr. Thayer, do you have comments to that? In

21 the meantime, for the record, the Prosecution, I also notice the presence

22 of Mr. Nicholls, and Ms. Nikolic has been present in the meantime.

23 MR. THAYER: I certainly can, Your Honour.

24 JUDGE AGIUS: Okay. Then go ahead.

25 THE INTERPRETER: Microphone for the counsel, please.

Page 25148

1 MR. THAYER: Question: "Can I -- can I just ask you what kind --

2 what kind of officer Gvero was? Did you know him very well?"

3 And your answer was: "I didn't know him very well. I knew him.

4 I met him during the war when he used to come to the corps, the corps'

5 area of responsibility. I know he is from Mrkonjic Grad, and I know that

6 before the war he was the spokesperson of the SSNO and that he

7 practically spent his entire time serving in Belgrade, and when I was

8 telling you yesterday about my imprisonment he is the person who couldn't

9 provide my father with an answer of where I was. He was a very educated

10 officer."

11 MR. JOSSE: Thank you.

12 MR. THAYER:

13 Q. Now, sir, you mentioned paramilitaries the other day, and when

14 you were asked about this in Banja Luka, you said, and this is page 126:

15 "So basically, you had to make a compromise. It's better to keep them

16 under your wing, put them into the army, have them fight for you and keep

17 them under control than to have them as loose cannons."

18 Is it correct, therefore, to say that in some cases the VRS had

19 to forcibly remove paramilitaries but in others they were able to

20 convince the paramilitaries to join you and work towards a common cause?

21 A. You are right. During the war, and I'm talking about the zone of

22 responsibility of my corps, at the beginning of the war, actually,

23 different groups arrived allegedly wanting to fight together with the

24 Serbian people, but they had different criminal agenda. All the groups

25 that would not be placed under the command of the army or in the specific

Page 25149

1 case of the corps were disarmed and expelled from the zone of

2 responsibility of my corps. They arrived in different ways, through

3 different channels, but all those who would not be placed under our

4 command had to leave our zone of responsibility.

5 When you were talking about a compromise, you were talking about

6 one specific case of a unit from the 1st Krajina Corps, which had started

7 out by acting as an independent paramilitary unit from Vucak, I believe.

8 And subsequently, they were incorporated into the army and became a

9 regular unit of the 1st Krajina Corps, although their commander had been

10 convicted for a crime before the war, and hence my second example of

11 compromises that had to be made during the war to accommodate such

12 groups.

13 Q. Understood, Colonel. Last topic, briefly.

14 Going back to the world that existed when you were serving in the

15 JNA, under the rules and under the practice adhered to by the JNA while

16 it still existed, what would happen to a soldier or an officer who openly

17 displayed ethnic hatred or intolerance or hostility towards a co-worker?

18 A. Talking about the time the JNA existed in the former Yugoslavia,

19 that was considered a crime. Any such person - be it a soldier or an

20 officer or even a commissioned officer; it really did not make any

21 difference - any such person would be subject to measures prescribed by

22 law.

23 Q. And what would happen to a soldier or an officer who openly

24 voiced nationalistic sentiments while they were serving in the JNA, sir?

25 A. Such persons would be subject to measures prescribed by law

Page 25150

1 because any display of ethnic hatred in the JNA - which was the epitome

2 of brotherhood and unity at the time - was considered a crime, and that's

3 why such persons would be prosecuted.

4 Q. Punishable by what, sir? Do you know?

5 A. I don't know what you mean, sir. In any case, depending on the

6 gravity of the crime that they committed; it depended whether they acted

7 independently, whether they acted on their own or in concert with

8 somebody else, whether they were members of an organised illegal group,

9 whether they inflicted damage upon the image of the JNA. It all depended

10 on the judiciary, and the judiciary decided the type of punishment.

11 MR. THAYER: Thank you, Colonel. That concludes my

12 cross-examination.

13 THE WITNESS: [Interpretation] Thank you, sir.

14 JUDGE AGIUS: Thank you. Re-examination, but before that, I

15 notice Mr. Bourgon standing. Yes, Mr. Bourgon?

16 MR. BOURGON: Thank you, Mr. President. Mr. President, I would

17 like to have special permission by the Court to ask one question, one

18 further question in cross-examination, which arises with the questions

19 that have been put by my colleague from the Prosecution to the witness.

20 If the witness can take his earphone, I will gladly share this question

21 with the Court in order to get the proper leave.

22 JUDGE AGIUS: One moment.

23 [Trial Chamber confers]

24 JUDGE AGIUS: What's your knowledge of English like, Mr.

25 Mitrovic?

Page 25151

1 THE WITNESS: [Interpretation] None whatsoever.

2 JUDGE AGIUS: Yes. Okay, could you remove your headphones for

3 awhile, please.

4 Yes, Mr. Bourgon. What's the question.

5 MR. BOURGON: Thank you, Mr. President. The question reads as

6 follows, and I will read the exact question in the transcript so I can

7 get you to consider.

8 My colleague from the Prosecution asked you many questions

9 concerning the issuing of orders from the Main Staff to the corps level

10 to the brigades as well as questions relating to what is known in western

11 armies as the back-briefing process when orders are issued. I have only

12 one question for you in this regard, which goes as follows: On the basis

13 of your military experience, can you think of any order involving the

14 implementation of activities which require the use of resources which

15 could be issued by a corps to one of the assistant commanders in a

16 brigade without first informing the Brigade commander?

17 That is the question, Mr. President, and this question arises

18 from questions that have been put by my colleague to the witness,

19 questions which -- the aim of which was to obtain evidence favourable to

20 its own case and which were not related to the reason for which this

21 witness is here in the first place.

22 JUDGE AGIUS: Okay.

23 MR. BOURGON: Thank you, Mr. President.

24 JUDGE AGIUS: Thank you. And is there re-examination,

25 Mr. Nikolic?

Page 25157

1 the witness can survive that.

2 Mr. Mitrovic, unless my colleagues have questions for you, which

3 doesn't seem to be the case, your testimony has reached its end here. On

4 behalf of the Trial Chamber, I wish to thank you for having come over and

5 give evidence, and on behalf of everyone I also wish you a safe journey

6 back home.

7 THE WITNESS: [Interpretation] Thank you, Your Honour. I would

8 like to thank you for the fair treatment, in particular during

9 cross-examination by both the Prosecution and Defence counsel.

10 JUDGE AGIUS: Thank you, Mr. Mitrovic.

11 [The witness withdrew]

12 JUDGE AGIUS: Mr. Nikolic, exhibits?

13 MR. NIKOLIC: [Interpretation] None, Your Honours. We've only

14 been using previously tendered exhibits.

15 JUDGE AGIUS: All right. Thank you. Ms. Nikolic?

16 MS. NIKOLIC: [Interpretation] The same, Your Honour. All of the

17 documents we used yesterday are already exhibits.

18 JUDGE AGIUS: I take it it's only the Miletic and Gvero Defence

19 teams that wish to tender some documents. Otherwise, if there's someone

20 else, let us know, please. Ms. Fauveau, you have four documents,

21 correct?

22 THE INTERPRETER: Microphone, please. Microphone, please.

23 MS. FAUVEAU: [Interpretation] The documents that are on the

24 list, 5D1192, 5D1195, and 5D1197 as well as 5D1196 and 97.

25 THE INTERPRETER: So I'll repeat. 5D1192, 5D1195, 5D1196 and

Page 25158

1 5D1197.

2 JUDGE AGIUS: Any objection, Mr. Nikolic?

3 MR. NIKOLIC: [Interpretation] Mr. President, we object only to

4 the document which is 3516 from the 65 ter list. We have no knowledge of

5 the origin of the document, and we cannot see which organ issued it or

6 who signed it.

7 JUDGE AGIUS: Which is 3516? Which one are we talking about?

8 JUDGE KWON: Prosecution's.

9 JUDGE AGIUS: Yeah, but I was referring to Madam Fauveau's

10 documents? No objection. No objection to Madam Fauveau's exhibits? All

11 right. Thank you. Mr. Thayer.

12 MR. THAYER: No objection to the Miletic team exhibits nor to the

13 Gvero team's exhibit.

14 JUDGE AGIUS: Okay. Thank you. So your exhibits are admitted,

15 Ms. Fauveau.

16 Mr. Krgovic, you have only got one document, which has not yet

17 been translated. At least that's what is stated here.

18 MR. KRGOVIC: Yes, Your Honour. It's Document 6D --

19 JUDGE AGIUS: 306.

20 MR. KRGOVIC: -- 306.

21 JUDGE AGIUS: Yeah. Any objections, Mr. Nikolic?

22 MR. NIKOLIC: [Interpretation] No objections.

23 JUDGE AGIUS: Any objection from anyone else? So this document

24 is also admitted. Your exhibits, Mr. Thayer?

25 MR. THAYER: Just three, Mr. President, from our exhibit list:

Page 25159

1 3625, 3659, and 3661.

2 JUDGE AGIUS: Objections?

3 MR. THAYER: I would also offer -- typically when I read in

4 portions of a report or transcript, our practice is not to offer the

5 actual pages. Given the length of one of the passages I read, if my

6 friends or if the Trial Chamber thinks it might be more helpful to have a

7 hard copy just in case, I'm happy to put that together as an excerpt just

8 of that one section that was particularly long. If the parties or the

9 Court see no need, then obviously we won't do that.

10 JUDGE AGIUS: All right. Any objections. Mr. Josse.

11 MR. JOSSE: Sorry. I'm not clear here. 3625 according to the

12 list I've got is the transcript of the witness's interview. I thought

13 that was what my learned friend was just referring to.

14 MR. THAYER: I misspoke. That should have been 3659, 3661. My

15 friend is entirely correct. We have no intention of offering the entire

16 interview. I'm just referring to --

17 JUDGE AGIUS: So it's not three documents but two?

18 MR. THAYER: No, it's two documents, Mr. President. I apologise.

19 I misspoke.

20 JUDGE AGIUS: All right. Thank you, Mr. Josse, for your

21 intervention. Do you wish to comment on the offer?

22 MR. JOSSE: We have no objection to the offer, in other words,

23 the pages that were read out being specifically admitted, if that's of

24 assistance to the Trial Chamber.

25 JUDGE AGIUS: Yeah. Is there an objection from your part,

Page 25160

1 Mr. Nikolic, or from any other Defence team, for that matter? Yes?

2 MR. NIKOLIC: [Interpretation] No objections.

3 JUDGE AGIUS: All right. It all depends now on what my

4 colleagues think.

5 [Trial Chamber confers]

6 JUDGE AGIUS: The decision is we prefer to have it in the records

7 just in case it becomes necessary later on to understand better the

8 relevant part of the witness's testimony, so it's being admitted, too,

9 only those parts, I mean. I'm not -- none of us is interested in the

10 rest.

11 As to the others, there being no objection, they are also

12 admitted. The point raised by you earlier on, I understand now, is moot

13 because 3615 is not being tendered, Mr. Nikolic, correct?

14 MR. NIKOLIC: [In English] Yes.

15 JUDGE AGIUS: Yes. Please, I just have to check for us if 3659

16 remains under seal or -- yes. Okay. Thank you. Yes, Mr. Ostojic. I

17 saw you standing.

18 MR. OSTOJIC: Thank you, Mr. President. Two things: One, we

19 would ask just for a 5- to 7-minute break so we could bring in our

20 binders. There's actually three or so binders that Professor Wagenaar

21 will utilize, and we're changing our staff. There's another young lady

22 who will be assisting me today, so they can disrobe, and if you don't

23 mind giving me those five minutes to do that.

24 The other thing is, I still would like the Court to -- or my

25 learned friends to give us a little more information as to why the

Page 25161

1 documents that we're receiving late that bears our clients name on it

2 were not produced to us other than last week or two weeks ago when they

3 claim it was on the list of exhibits for Mr. Mandic. It's of concern to

4 us. They've had it for over ten years. We've been in this case for

5 quite some time, and I think we've asked them pretty repeatedly to

6 provide such documents, so I just want to have that on the record if

7 nothing else. Thank you.

8 JUDGE AGIUS: Okay. I think that can be sorted out between

9 yourselves in these seven minutes that we will grant you. There will be

10 a short break of seven minutes approximately, and then we start with the

11 testimony of the new witness.

12 --- Break taken at 4.49 p.m.

13 --- On resuming at 5.01 p.m.

14 JUDGE AGIUS: Are you ready, Mr. Ostojic? Shall we call in the

15 witness?

16 MR. OSTOJIC: We may.

17 JUDGE AGIUS: Okay. Thank you.

18 MR. OSTOJIC: And as we are calling the witness in, if I can

19 just, for Mr. President and Your Honours, introduce my assistant today

20 who will be helping us. She's an intern from the Netherlands, and her

21 name is Frederike Ambagtsheer. So I'm just pleased and privileged to

22 have her here with us today.

23 JUDGE AGIUS: Thank you, and you are most welcome, madam.

24 [The witness entered court]

25 JUDGE AGIUS: For your information, the break will be at the same

Page 25162

1 time as usual, at 5.45.

2 Good afternoon to you, Professor Wagenaar.

3 THE WITNESS: Good afternoon.

4 JUDGE AGIUS: You are most welcome. You've been summoned as

5 witness by the Beara Defence team, but before we proceed with your

6 testimony, in terms of our rules you need to make a solemn declaration

7 that in the course of your testimony you will be testifying the truth.

8 Madam usher is going to hand you the text. Please read it out, and that

9 will be your solemn undertaking with us.

10 THE WITNESS: I solemnly declare that I will speak the truth, the

11 whole truth, and nothing but the truth.

12 JUDGE AGIUS: Okay. I thank you Professor. Please make yourself

13 comfortable.

14 WITNESS: WILLEM WAGENAAR

15 JUDGE AGIUS: I need to explain to you a preliminary matter,

16 namely that we decided to start with your evidence today, but I assume

17 you have already been told that we won't finish with you today and we

18 will not continue with your evidence tomorrow because we had on our

19 schedule someone else testifying tomorrow, which we can't move, which

20 ultimately means that you will need to return here next week, Monday, to

21 continue. If we don't finish on Monday, then it will spill over onto

22 Tuesday. So that's the position as such.

23 Mr. Ostojic is going to go first. He will introduce himself, and

24 we'll take it up from there then. He will be followed eventually by

25 others on cross-examination.

Page 25163

1 MR. OSTOJIC: Thank you, Mr. President.

2 Examination by Mr. Ostojic:

3 Q. Good evening, Professor. As you know, my name is John Ostojic,

4 and I'm one of the attorneys who represents Ljubisa Beara. Sir, before

5 we begin, I'd just like to thank you for accommodating our schedule. It

6 is very much appreciated, and once again, thank you for your

7 understanding.

8 Would you please state your name state your full name for the

9 record.

10 A. My name is Willem Albert Wagenaar.

11 Q. Mr. Wagenaar, how would you like me to address you today, as

12 Professor as I have in the past or simply as Mr. Wagenaar?

13 A. Mr. Wagenaar is all right.

14 Q. Fair enough. Sir, can you share with us your date of birth?

15 A. Yes. I was born the 30th of June, 1941.

16 Q. In order to have a better idea of you, can you tell us what's the

17 highest level of education that you've attained?

18 A. The highest level of education is that I acquired a PhD in

19 psychology at the University of Leiden.

20 Q. And when did you accomplish the same?

21 A. That was accomplished in 1972.

22 Q. And give us a little background of your employment history, and I

23 think you can actually start with what you currently do, and for those of

24 us who are following, I know, Professor, that we have your curriculum

25 vitae marked as 2D560. And the reason I ask and put that to you because

Page 25164

1 I noticed on the last page or the second page of your CV, it does note

2 that it was last updated in May of 2006.

3 A. Yes, that's right. In 2006, I was employed by the university of

4 Leiden and University of Utrecht both as a professor of experimental

5 psychology and in Leiden, also as a professor of psychology and law. I

6 retired because I reached the age of 65, which is in the Netherlands the

7 age of forced retirement. I retired in June 2006. Since then, I'm

8 officially a retired professor of psychology. I still teach at the

9 University of Utrecht.

10 Q. Thank you, and congratulations on your retirement. Share with us

11 some of your -- or highlight for us some of your --

12 JUDGE AGIUS: I don't quite think that he accepts or relishes

13 those congratulations. I don't think he is happy with having been

14 forced. Unfortunately, both the Netherlands and my country have exactly

15 the same situation, which is unfortunate. Let's hope it will change one

16 day, Professor.

17 MR. OSTOJIC:

18 Q. Professor, can you share with us some of your administrative and

19 advisory positions?

20 A. Yes, I've been with my first employer, which is the TNO

21 organisation in the Netherlands, the Organisation For Applied Scientific

22 Research. I was head of the psychology department in my institute. From

23 there on, I went to the University of Leiden where I became the how - do

24 you say it - the chair of psychology; and in 1987, I became the dean of

25 social sciences until 1989.

Page 25165

1 Q. That's also at Leiden University?

2 A. Also at Leiden University, and then in 1979 [sic] I became what

3 is called a Rector Magnificus. You might translate it as vice chancellor

4 of Leiden University, which position I had until 2001, so a period -- two

5 terms of two years as we do it in Leiden.

6 Q. And just give us a quick overview of some of the honours that you

7 received throughout your career.

8 A. Well, I don't know exactly what you consider to be honours. I

9 was a Fulbright scholar in the year 1973, '74. I became an honourary

10 professor in Holland - you call it university professor; it's really

11 honourary professor - at the University of Utrecht, and I acquired a

12 large number of awards allowing me and my group to do research so awards

13 to which, also, money was connected. I think that those are the most

14 important things. I was appointed special professor at the University of

15 Leuven in Belgium, at the University of Cambridge where I was, as you

16 called it -- and am still an overseas fellow of Churchill College in

17 Cambridge. I am a member of the Royal Academy of Sciences in the

18 Netherlands since 1991.

19 Q. And I see that it's obviously reflected in your CV, which is

20 2D560, under the section "Honours Received," and that's why I asked you.

21 Sir, let me turn to another topic, and that's publications. Have you

22 written any articles or textbooks?

23 A. Yes. I've written many articles and many textbooks on. Various

24 subjects relevant to the themes that we will be discussing here. Of

25 course, articles and books both in the area of human memory and in the

Page 25166

1 area of psychology and law, which partly is, of course, overlapping

2 because some of my work is on human memory in the context of what happens

3 in the courtroom.

4 Q. Just give us an idea of where your publications can be found and

5 what sources are they actually published in?

6 A. My publications can be found in the normal scientific journals,

7 as in the leading scientific journals in my field, and in several books

8 that are simply available on -- in any book shop, can be ordered through

9 any book shop. My book on problems, psychological problems in the

10 context of the Dutch law is in its 5th edition right now.

11 Q. Just give us an idea of how many scientific books you've

12 authored.

13 A. Yeah, that depends slightly on what you call books, because

14 usually -- see, proceedings and edited books also count as books, but

15 according to some, they don't. But I think altogether there would be a

16 total of ten books or so.

17 Q. And how about scientific articles?

18 A. Scientific articles, I think that approaches a number of 200 or

19 so.

20 Q. Now, can you share with us, when was the first time that you were

21 contacted by the Beara Defence team in order to provide an analysis and

22 review materials in connection with this case?

23 A. I think I was contacted around the beginning of this year while I

24 was still working on another case that was presented to this Tribunal.

25 Q. Well, we want to -- we are going to spend a lot of time or some

Page 25167

1 significant time talking about memory. On the first page of your report,

2 it actually states that you were contacted in May of 2007. And if you

3 have the report in front of you, I think the Court would also -- would

4 not mind if you use it if necessary.

5 A. Yeah, it was not my intention to demonstrate the frailty of human

6 memory, but I cannot also not avoid the fact that human memory is not

7 perfect.

8 Q. We'll get into that, I'm sure.

9 So sir, let me restate the question. When was the first time

10 that you were contacted by the Beara Defence team in order to provide

11 your analysis and opinions in connection with this case?

12 A. According to my notes, and these notes, of course, reflect the

13 notes I made in my own diary, that was in May 2007.

14 Q. And you met with me and others from my team, correct?

15 A. Yes, that's correct.

16 Q. And can you share with us what the task was that was initially

17 asked of you?

18 A. The task was to -- was actually twofold. First, my first task

19 was to explain to you and also follow that up with a written outline to

20 what the important issues are in the area of recognition and

21 identification by eyewitnesss. That was part one.

22 Part two was to read relevant parts of the case file in this

23 specific case and see how this general knowledge about identification and

24 recognition can be applied to problems that emerge in this case, and so I

25 also wrote a section on what the general knowledge within my discipline

Page 25168

1 means for when it is applied to this specific case.

2 Q. Okay, and we'll get into your definition of those two terms in a

3 moment, but prior to that, have you testified before in a capacity as an

4 expert witness?

5 A. Yes. My estimate is that I have testified about 1.000 times as

6 expert witness, among which a number of times to this Tribunal.

7 Q. And do you remember how many times you've testified as an expert

8 witness in this Tribunal?

9 A. Yeah, although as you can see from my report, is it a matter of

10 definition. I worked on four other cases, but I testified on only in

11 three out of these four because in the last case, the case of Haradinaj,

12 actually, no witnesses were called.

13 Q. With respect to the Tadic case that you list in the report, did

14 you -- were you retained as an expert witness for the Prosecution as well

15 as the Defence?

16 A. Yes, that's right. I was approached simultaneously and probably

17 without the two parties being aware of the fact I was approached by both

18 sides to testify, and so I proposed to the Court that I would be try to

19 answer in one report questions from both sides, which, of course,

20 happened to be exactly the same questions, and after some discussion the

21 Court allowed me to do that.

22 Q. And what year was that, if you can help us put a time frame on

23 it.

24 A. The case was in 1996. It was, as far as I am aware, the first

25 case that was handled by this Tribunal.

Page 25169

1 Q. Now, you mentioned -- strike that. Before I get into that, what

2 types of cases would you offer expert testimony on in court?

3 A. Most of the cases in which I'm asked to testify as an expert

4 concern problems of memory, of human memory, and roughly that can be

5 divided into two specific areas: One is of recognition of people by

6 eyewitnesses, which relies on their visual memory, the remembering faces,

7 usually, and the other section is other problems of eyewitness testimony

8 where they remember facts other than just the faces or the outer

9 appearance of people. So it's usually on either recognition of

10 eyewitnesss or the reliability of their memories about events that they

11 have experienced.

12 Q. You mentioned both recognition and identification. Do you draw a

13 distinction between the two?

14 A. Yeah. I think that needs to be explained. These terms have been

15 introduced with -- there's a very special definition within this

16 Tribunal, and I found it just practical to follow the definitions that

17 have been used by the Tribunal, although I am aware of the fact that

18 within my discipline, the meaning of these words is slightly different,

19 but I don't think it's very useful to confuse the Tribunal by having all

20 sorts of different definitions.

21 Q. And which word are you referring to, sir, "recognition" or

22 "identification," that the Tribunal has set a specific definition for?

23 A. Well, both, both have obtained a special definition within this

24 Tribunal, and I think it's -- those definitions can be used very well,

25 are practical, and I will simply follow them. And according to my

Page 25170

1 understanding, the definitions used by this Tribunal are as follows:

2 Recognition is retained for a witness who states that he observed at a

3 moment in history a person whom he knew well, and the witness states, I

4 recognise that person because I knew who that was. The memory task for

5 such a witness is only to remember that he saw a particular person. In

6 fact, the witness only has to remember the name of the person he saw, and

7 remembering the face is easy because he knew that person well and he

8 knows the face of that person. That's recognition.

9 Q. And then --

10 A. Identification, as used by this Tribunal, is the witness says he

11 saw a person at the moment in history who at that time he had never seen

12 before. So he met -- he saw that person for the first time in his life.

13 Therefore, in most cases he also did not know who that person was.

14 There's no name to remember. There's only a face or the outer appearance

15 of a person to remember. Later on during investigations, that witness

16 may be asked to look at photographs or videos or lineups or anything to

17 see whether that person is present in those photographs, videos, lineups,

18 and so on. And so the identification task is at that later moment during

19 the investigation. The task for the witness is to remember not a name

20 but to remember the outer appearance of that person, so that requires

21 retaining a visual memory.

22 I myself have always used, as I do in this report, a distinction

23 between familiar people and unfamiliar people. If at the scene of the

24 crime, to simplify it, you see a person that was already familiar to you,

25 then the Tribunal would say you may have recognised that -- that's

Page 25171

1 recognition. If you saw an unfamiliar person, then later on during the

2 investigation there comes a moment of identification, identifying who

3 that person was who you seemed to remember.

4 Q. A little more with respect to your background at this point.

5 Have you testified in other Tribunals other than the ICTY?

6 A. Yes. I've testified for the ICTR in Arusha this year. I have

7 testified in a special Dutch Tribunal for war criminals at the very early

8 moment. I've testified in 1987 in the special Tribunal in Jerusalem set

9 up for the trial of John Demjanjuk who was accused of being a person -- a

10 character called Ivan the Terrible.

11 Q. And sir, just a little more with respect to definition. On the

12 fourth paragraph of your report, which we have, you seem to -- or at

13 least I think you draw a distinction between perception and memory.

14 Since we're just in the beginning part, I'd like to, perhaps, have a

15 better understanding if, first, you do and then, if you don't mind

16 explaining that for us.

17 A. Yeah. Well, almost logically, perception precedes memory. If

18 you are a witness, see, the first requirement is that you perceive

19 things. You see them or you hear them, and if you didn't see them or

20 didn't hear them, there's no way that the -- that relevant information

21 could have been stored into your memory. So the first question, always,

22 about a witness is, could the witness see it or could the witness really

23 hear that? The next question is, not only could he see it, but did he

24 see it? Did he pay attention to that because, also, attention is a

25 prerequisite for storing information in your memory. And only if those

Page 25172

1 two answers are positive - yes, it was perceived; yes, attention was paid

2 to it - then it's possible that it was stored into this witness' memory.

3 And from there on, anything that happens is relevant to what the fate of

4 that memory might have been, whether it was retained in memory, the

5 information, or disappeared or was confused or changed and so on.

6 Q. Thank you. Now, earlier when describing the definition or giving

7 us the definition of recognition and identification, you mentioned the

8 two subcategories, as I call them, and forgive me if I'm changing the

9 proper way of calling it, but of a familiar and unfamiliar person. Is

10 that correct?

11 A. Yes.

12 Q. Does that fall into one specific section under recognition or

13 identification, or is that -- really fall within both those sections or

14 definitions?

15 A. No. When the person whom you saw, say, at the scene of the

16 crime, when the witness claims, I already knew that person before, then

17 the only relevant -- the most relevant question is, was there a good

18 opportunity to recognise that person at the scene of the crime? When the

19 witness states, that was the first time I ever met that person, then the

20 most relevant question -- then there are two relevant questions: Could

21 the witness see this person at the scene of the crime good enough to form

22 a visual image that could be stored into memory; and the next relevant

23 question is, in what way was the witness later on during the

24 investigations asked to identify this person?

25 Q. Okay. Now, going back to this specific assignment that you

Page 25173

1 received, can you share with us what materials were provided to you or

2 which materials were requested from you to us?

3 A. Yeah. I was provided not with the entire case file because that

4 was physically impossible, but I was provided with sections including

5 statements of 12 witnesses, whom I have also listed by number in my

6 report, sections of the statements that related to either recognition or

7 identification. I have no way of checking whether I saw all the relevant

8 sections that are in the case file because I simply could not study the

9 whole case file, but from my report it is at least clear which sections I

10 saw of those statements. Altogether, still, these sections constitute

11 three large binders of information, which I also took to this Court, so

12 it's open to the Court to inspect what actually I saw.

13 Q. And Mr. Wagenaar, we actually have brought the binders here just

14 so you have them. If there's a need to refer to them, kindly do so.

15 Just to clarify one issue, when you say "statements," was it

16 actual statements by witnesses that were provided or in-court testimony

17 that was offered during the trial of this case?

18 A. Yeah. I think the binders contain two types of information:

19 statements that were taken from them as a preparation of their appearance

20 in Court, but also sections of their actual testimony in court.

21 Q. Going back to 1996 and the work that you did for the Prosecution

22 in the Tadic case, give us a little feel, if you will, for what type of

23 work you performed for them at that time. What was the issue at hand?

24 A. In the Tadic case, there were two types of witnesses: Witnesses

25 who claimed that he was a familiar person because they came from the same

Page 25174

1 village and had known him for 10, 20 or even more years; and there were

2 witnesses who said that the first time they saw, allegedly, Mr. Tadic was

3 at the scene of the crime where they saw him committing certain crimes.

4 These witnesses, of course, later were asked to identify the person they

5 saw by means of a photo line-up, and one of my tasks was, of course, to

6 comment on the quality of this photo line-up.

7 Q. Was it actually -- and I use a different term and maybe -- I

8 think we are on the same page. Was it a photo board, or was it actually

9 a physical line-up where people would walk across a room with a

10 background that would be considered neutral with height indications, or

11 was it a photo board?

12 A. It was a photo board showing only the faces of people, not their

13 body, so there's nothing you could say about height or build or anything

14 like it.

15 Q. Now -- so the Prosecution and you together, obviously, with the

16 Defence attorneys were -- what were you, constructing this photo board?

17 A. No. The photo board had already been constructed and been

18 applied. There was no way for me to influence the actual design of that

19 photo board, the composition, but I did some quantitative research on

20 whether that composition was biased or not.

21 Q. And just so I understand it better, I think I do, but these photo

22 boards consist of essentially 3-and-a-half-by-5 pictures of individuals

23 who may share the same physical attributes or characteristics, if you

24 will, such as hair, shape of face, eyes, et cetera?

25 A. I'm not quite sure what you are asking. Are you asking what they

Page 25175

1 should consist of or what they generally consist of?

2 Q. First, what they generally consist of. What do they generally

3 consist of?

4 A. They generally consist of pictures presenting people roughly in

5 the same category, like the all white, the all male, or all female. But

6 it cannot be generally said that they always conform to, say, the

7 descriptions that witnesses gave of the person they saw. Sometimes it's

8 quite -- some of the people presented are not fitting those descriptions,

9 which does not make them plausible choice alternatives, and that, then,

10 usually is one of the problems.

11 In the Tadic case, the problem was that all witnesses knew that

12 the accused was -- had a Serbian ethnic background, and the question was,

13 do all the people shown in the line-up, are they also Serbian, or are

14 some of them clearly non-Serbian? So I cannot say generally they all fit

15 the same description. That's usually exactly the topic that needs to be

16 studied.

17 Q. What is a foil?

18 A. A foil is a person who appears in a photo line-up, in a photo

19 board who fits the same description as the accused but who clearly is

20 innocent and who if identified by the witnesses clearly cannot be

21 suspected of any wrongdoing; and thereby, by that logic, it is shown that

22 the witnesses has not a reliable memory of whom he saw.

23 Q. And when -- is there a standard when creating these photo boards?

24 A. Yes. There are good rules, and many countries have adopted such

25 rules, which roughly agree with one another about how these photo boards

Page 25176

1 should be composed and what dangers in the construction of photo boards

2 should be avoided.

3 Q. Okay. And we'll talk about what those rules and standards are.

4 What is a suggestive photo board?

5 A. A suggestive photo board, or we usually call it a biased photo

6 board, is a photo board where what we call a naive person who has never

7 met the accused will, with a much larger likelihood than one out of the

8 number of photos on the board, identify who the accused is.

9 Q. Okay. What would we call that, though, if we just bring a random

10 person in to look at a photo board and give him a short synopsis of who

11 they should identify? Is there a term of art for that?

12 A. Yeah. Sure. That test, which you usually run before you show

13 any photo board to real witnesses to make sure that naive witnesses

14 cannot do it, that test is called the test of Doob and Kirshembaum.

15 Q. Now, you were starting to tell us that were standards that are

16 utilized in creating a photo board, and can you share them with us,

17 please.

18 A. Yes.

19 Q. And I'm obviously asking you for a proper photo board, if you

20 will.

21 A. Right. Right. Yeah, and I will try to do it in a succinct

22 manner because in one of my publications I've listed 50 rules for

23 composing photo boards, and I think that's a -- so I will give you a

24 rough indication. What you do is the following: First, you ask the

25 witness to describe the person he saw, and that description defines,

Page 25177

1 then, how all the people in the photo board should look. So all the

2 persons must fit the description given by a specific witness.

3 Q. What types of characteristics are normally used?

4 A. Usually, the rough categories are male, female, caucasian,

5 Chinese, Japanese, but it can be far more specific; it can also be the

6 distinction between, say, Serbian and Croatian; age, usually witnesses

7 cannot know exactly the age of people, but at least they can mention the

8 age category, like he was middle-aged, he was 30 years, he was an old

9 man; and then facial descriptions like hair-do, facial hair like beards

10 and mustaches; things like scars are important. Those are the most

11 important things.

12 There are also a number of things you should not do. Preferably,

13 a photo board should not show any clothing, or it should show exactly the

14 same clothes on all people. It should, for instance, not show -- if you

15 talk about military people, it should not show insignia because if the

16 rank of a person is known and none of the people in the photo board shows

17 the correct insignia, that would be highly suggestive. They're things

18 like -- we call that clothing bias, and to me that also includes

19 insignia.

20 Q. You mentioned scars and, obviously, I'm sure tattoos fall in

21 that, if someone would have one on their face. What about things like

22 glasses or other -- piercings someone may have on their face?

23 A. Yeah. I think with respect to glasses you should make a

24 distinction to a person usually wearing glasses or maybe even always

25 wearing glasses and people like me who have reading glass who may wear

Page 25178

1 them or may not wear them. But if the witness mentions glasses, then if

2 the accused never wore glasses, you have a problem, and the question is

3 whether you should compose a photo board at all. If you compose a photo

4 board with the accused wearing no glasses, the problem is that actually

5 you inform the witness that he was wrong. He mentioned glasses, but

6 there are no glasses. That's not the purpose of a photo board. The

7 purpose of a photo board is for the witness to inform the investigators,

8 not the other way around. So you have a logical problem there.

9 Obviously, the only correct way of doing it is showing the accused with

10 glasses, his own glasses, and showing all the foils also with glasses.

11 Q. And we will get into it later during your testimony. Were you

12 informed of us as to whether or not Mr. Ljubisa Beara wore glasses or not

13 in 1995?

14 A. Whether he wore glasses in 1995. I wasn't informed in 1995.

15 Q. Okay. Thank you.

16 A. Yeah, I was thinking.

17 Q. I didn't know you --

18 A. Yes. I saw a number of pictures of Mr. Beara in which he always

19 wear glasses. I've not seen pictures of him without glasses. I have no

20 way of knowing whether he always wore glasses. I can only say that some

21 of the witnesses mentioned glasses, and clearly if there would have been

22 composed any line -ups for those witnesses, but there were not, but if

23 there would have been any form of photo boards, then the accused should

24 have been shown on the photo with his glasses, and all the others should

25 have worn glasses.

Page 25179

1 I also saw that some witnesses whose statements I studied were

2 either uncertain about glasses or did not mention glasses and even in a

3 few cases said, I don't remember glasses or there were no glasses. For

4 these witnesses, if you would use a photo board at all, the only possible

5 way is showing Mr. Beara without glasses, and whether that would be a

6 useful thing to do or not depends on whether Mr. Beara sometimes walks

7 around without glasses or not, and I'm not a judge of that.

8 Q. Fair enough. Give us a little more detail on the photographs

9 that you reviewed in connection with the issue of glasses and Mr. Beara.

10 Did it range for a time period in his life prior to 1995, or really,

11 because some of them are dated, some are not, was it some periods when he

12 was younger and, obviously, some even after 1995?

13 A. Yeah, I saw a number of photographs. I don't have them in my --

14 all in my possession, but I'm sure you do, showing him from a relatively

15 young man like -- it makes the impression of 30 or so, until -- right

16 until 1995 and even later, I think. In all these pictures, I saw

17 glasses. I have not seen other pictures.

18 JUDGE AGIUS: Mr. Nicholls.

19 MR. NICHOLLS: Just a question, Your Honour. We received for the

20 first time today around 11 o'clock photos of Mr. Beara, and I just want

21 to know if my friend can tell me if what we received today are the same

22 photos which were provided to the witness, if that's what we're talking

23 about, exactly the same photos.

24 JUDGE AGIUS: All right.

25 MR. OSTOJIC: I'll follow up on that, as well, but first, let me

Page 25180

1 ask the professor this question.

2 Q. When were you shown the pictures of Mr. Beara that you're

3 discussing here?

4 A. Well, I saw a few, maybe two or three pictures last year when I

5 started on the case. A larger number of pictures were shown to me, I

6 think, in the last week when we started to prepare -- when I started to

7 prepare my testimony.

8 MR. OSTOJIC: And those were all -- because there's a

9 distinction, there were two sets of pictures, one from a video that

10 obviously the Prosecution is shown, witnesses that we gave to Mr.

11 Wagenaar when we gave him the materials, and other pictures that the

12 Prosecution had of Mr. Beara, and then also some family photos that we

13 obtained recently, actually last week, and then shared it with Mr.

14 Wagenaar this week. But those are the ones that we've shown him that are

15 scanned and provided to the Prosecution.

16 JUDGE AGIUS: Thank you. Are you satisfied with that

17 explanation, Mr. Nicholls?

18 MR. NICHOLLS: For now, I think so. If I have any questions,

19 I'll ask my friend after.

20 JUDGE AGIUS: Also, for the record, in addition to what

21 previously was stated now, Mr. Elderkin has joined the Prosecution team

22 and is present in the courtroom. Mr. Ostojic.

23 MR. OSTOJIC: Thank you, Mr. President.

24 Q. Professor, was there --

25 JUDGE AGIUS: One moment. In any case, it's time for the break.

Page 25181

1 I don't know if it's convenient for you or whether you wish to proceed

2 with your next question.

3 MR. OSTOJIC: It's convenient. I mean, it doesn't make a

4 difference.

5 JUDGE AGIUS: Okay. We'll have a 25-minute break. Thank you.

6 --- Recess taken at 5.45 p.m.

7 --- On resuming at 6.13 p.m.

8 JUDGE AGIUS: Mr. Ostojic.

9 MR. OSTOJIC: Thank you, Mr. President.

10 Q. First of all, Mr. Wagenaar and Mr. President, I want to apologise

11 sincerely to you. I didn't hear when you said you were forced into

12 retirement, and I apologise to you and the Court for that, and I answered

13 it, so thank you for that.

14 Now, if I can go back to my question --

15 JUDGE AGIUS: I don't think he has really retired.

16 MR. OSTOJIC:

17 Q. Forcibly retired from wherever you were mentioning in your

18 background.

19 Sir, we were speaking before the break in reference to glasses,

20 and we'll come back to that topic. Did you notice anything conspicuous

21 about the type of glasses in the photographs that was provided to you

22 initially and then subsequently in connection with either their size,

23 shape, or colour?

24 A. In the photographs that I saw, there were always rather large

25 pairs of glasses so not the type of reading glasses that I'm wearing that

Page 25182

1 are really only half-glasses. They are large -- conspicuously large

2 glasses, but it was very difficult to see on the photograph what type of

3 glasses they were. You could only see that the frame was rather large

4 and conspicuous, always dark, large, conspicuous frames, not the type of

5 invisible frames where you see only glasses. Very clear, dark rims

6 around the glasses.

7 Q. Now, just a couple of other items that I'd like to clear up, and

8 I did speak with my learned friend during the break that we've had, and

9 he had a couple of inquiries of me, and I wasn't able to provide the

10 answers. He wanted to know, because you mentioned the notes that you've

11 taken, do you have and have you maintained notes in connection with that

12 which you've reviewed and analysed with respect to your report and

13 testimony here today?

14 A. What I did was first review the copies of statements and --

15 statements by the witnesses and their testimony in these binders. From

16 that, I made together with one of your colleagues a sort of large table

17 with a summary for each witness separately, each of the witness -- where

18 the relevant clauses can be found and what in a very short sentence what

19 they were about. That's what I used to compose the report that was

20 submitted to you.

21 Q. And that material, you still have that material with you, those

22 synopsis or the short summary that you took from the statements?

23 A. I'm not quite sure whether I have them, but I'm sure they can be

24 made available.

25 Q. If you would be kind enough to make that available to us, and

Page 25183

1 then we'll share it with the Prosecution so they have it as well.

2 A. Sure.

3 Q. Thank you. With respect to -- you mentioned also during the

4 first 45 minutes of your testimony, when we generally spoke of rules in

5 connection with both recognition and identification that these were

6 universally or widely accepted rules, and you said in many countries, and

7 I failed to follow-up, in which countries are these types of rules that

8 you're discussing with us, today universally accepted?

9 A. I mentioned as examples the United Kingdom where the so-called

10 PACE rules have been adopted as standard; I mentioned the United States

11 where a very clear set of rules that can also be downloaded from the

12 internet is used; and I mentioned my own country, the Netherlands, where

13 a set of rules has been published and adopted in the year 2002 by our

14 Minister of Justice as the standard that must be used by the Office of

15 the public -- Prosecutor.

16 Q. And why the Office of the Prosecutor, though? Do you know why

17 are these rules actually those that the Prosecution should abide by?

18 A. Well, I think that there's a technical reason. The Minister of

19 Justice has only authority over the Office of the Prosecutor, not over

20 the Defence, and not at all over the Judges, so the Minister of Justice

21 can only prescribe it to the Prosecutor that evidence to be presented in

22 court by the Prosecutor should conform to the standards.

23 Q. Are these rules universally known to criminal investigators?

24 A. Yes, I would say so, that any criminal investigator should as a

25 professional know how line -ups are to be organised, and I would be very

Page 25184

1 surprised if a professional criminal investigator had never used of

2 those. On the contrary, as a custom I would say an experienced criminal

3 investigator has in his or her lifetime used these procedures more than

4 once.

5 Q. Now, you mentioned that the rules can be found on the internet or

6 the computer. Are they easily accessible?

7 A. They are easily accessible. You just -- you just -- if you

8 Google PACE rules or anything like that, "US identification rules," you

9 just find them.

10 Q. Do you know from your experience in testifying at this Tribunal

11 and in other cases as well as this one, do you know if these rules that

12 we're going to discuss were known to the ICTY investigators from the

13 Office of the Prosecution?

14 A. No. In the context of this specific case, I've received not so

15 much information about the investigators and what they know and neither

16 of identification rules adopted by this Tribunal. I know from previous

17 cases that there is at least a summary statement of the Tribunal about

18 how identifications are to be done. These statements are rather short, I

19 would say, and not as extensive as one would want them to be because many

20 aspects that are usually adopted in such rules are missing here, and I've

21 commented on it before.

22 But in principle, I would hope that investigators delegated to

23 ICTY by various member states of the United Nations would be experienced

24 people who are aware of, say, the common practice in the world and could

25 apply them even without very specific directions from ICTY.

Page 25185

1 Q. Okay. How about whether you know whether OTP investigators in

2 previous cases used this line-up test or, as I call it, photo board. You

3 call it a photo line-up. I am assuming it's interchangeable, but you

4 correct me if I'm wrong. Do you know if they've used this in prior

5 cases?

6 A. Yes. In the cases of Tadic, they were used, as we already

7 discussed. In the case in which I testified, the case of Prosecutor

8 versus Kupreskic, it wasn't relevant because Kupreskic recorded seeing a

9 person well known to him, his own neighbour. In the case of Prosecutor

10 versus Limaj were extensive photo boards or photo line -ups used, and in

11 the case of Prosecutor versus Haradinaj in which I finally did not

12 testify because no witnesses were asked to testify at all by the Defence,

13 there were also photo boards.

14 JUDGE AGIUS: One moment before you proceed. Professor, is there

15 any difference in approach between -- to your knowledge between civil law

16 countries and common-law countries on these standards?

17 THE WITNESS: No. The standards are exactly the same because, in

18 principle, the foundation of those standards are within my discipline and

19 not -- actually are not derived from legal principles. They are derived

20 from the methods for psychological testing, and they are completely

21 independent of, say, the type of law that is used within a particular

22 country.

23 JUDGE AGIUS: Okay. And one further question. Is there any

24 either regional or global association whereby experts like you on this

25 subject meet and discuss regularly and update yourselves?

Page 25186

1 THE WITNESS: Yes, absolutely. There is, for instance, in Europe

2 the European Psychology and Law Association. They had their last

3 international meeting in -- last summer in Maastricht, and there were

4 many reports on identification procedures, and I, also, myself reported

5 on identification there.

6 JUDGE AGIUS: I take it you are a member of that association.

7 THE WITNESS: Absolutely.

8 JUDGE AGIUS: Yeah. Thank you.

9 MR. OSTOJIC:

10 Q. Mr. Wagenaar, with respect to this case, from the materials that

11 you reviewed were you able to determine whether a photo board was done in

12 connection with any of the accused?

13 A. I'm only aware of a photo board that I've seen that was used in

14 relation to the accused Mr. Popovic, but I did not review extensively the

15 sections of the case file that relate to this particular accused, so I

16 can only report to you that I saw this line-up, but I have further no

17 opinions about the quality or the adequacy of that line-up.

18 Q. And I'm not going to ask you about that. But just so that we

19 have it for the record, and I'd like to go into private session. I told

20 you, Professor, we may do that from time to time in order to protect the

21 identity of some of the individuals who have testified.

22 MR. OSTOJIC: And with the Court's permission, I'd like to go

23 into private session for just it this one short --

24 JUDGE AGIUS: Yes. By all means. Let's go into private session

25 now, please.

Page 25188

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 [Open session]

9 JUDGE AGIUS: We are in open session, Mr. Ostojic.

10 MR. OSTOJIC:

11 Q. Now, sir, do you have an opinion as to whether or not the OTP and

12 the Prosecutors there knew how to prepare at least a photo board, whether

13 proper or not, and I'm not asking you to pass -- give us or share with us

14 any opinion in connection with that photo board because you were not

15 retained to do that, but do you know if they -- by looking at some of

16 this and your knowledge in other cases, did they have the knowledge and

17 the know-how to prepare a photo board?

18 MR. ELDERKIN: I'm going to object to the form of the question.

19 He can't answer what was in the knowledge and know-how. I think he

20 rephrase that simply and make an analysis.

21 JUDGE AGIUS: I think, Mr. Ostojic, you can adapt yourself to

22 that.

23 MR. OSTOJIC: Okay. I'll do it again.

24 Q. Mr. Wagenaar, do you know --

25 JUDGE AGIUS: Especially since you yourself told him that he was

Page 25189

1 not retained to --

2 MR. OSTOJIC: Fair enough.

3 Q. Do you know, sir, whether or not the Prosecution had the capacity

4 or the capability to prepare a photo identification board such as the one

5 that we've seen in closed session, 2D571?

6 JUDGE AGIUS: One moment, because if it exists and we have seen

7 it, then obviously the Prosecution had the facility...

8 MR. OSTOJIC: I agree they did, Mr. President.

9 JUDGE AGIUS: All right. Then --

10 MR. OSTOJIC: And from other cases as well.

11 Q. Sir, let me ask you this: Can you tell us, how long does it

12 typically take to create a photo board from initially capturing the

13 description or the characteristics that you shared with us that generally

14 go into such a photo board to ultimately producing a photo board?

15 A. Well, it depends a little bit about -- see, the description that

16 the witness gave, the more specific the description is, obviously, the

17 more difficult it becomes to find suitable foils because they have to

18 meet, then, more and more of the criteria. But usually, descriptions are

19 rather general, and then it should not be too difficult to find pictures

20 of people who fit such a general description.

21 For instance, I myself have prepared photo boards simply

22 employing pictures of other people that are obtainable from the public

23 domain, like from the internet, and it usually doesn't take more than a

24 couple of hours to prepare such a photo board. So -- but it depends on

25 how specific the description it is. If it's a description that involves,

Page 25190

1 like, a very specific type of scar, then it may become difficult. But

2 generally, I would say that's not too difficult.

3 Q. And I'm being told that I didn't have you specify specifically

4 the materials that you reviewed, and although I believe they are

5 reflected on page 9 of your report, if you could be kind enough to share

6 with us or confirm which testimonies you were given and which ones you've

7 reviewed and are relying upon in your report. And I caution you as I did

8 privately, and that's why we updated or -- the report, just to mention

9 their pseudonym number, and I think if necessary we'll provide everyone

10 with the exact name in closed session, or we'll proceed as the president

11 wishes. But list out for us, which were the witness statements and/or

12 testimony that you reviewed?

13 A. On page 9 of my report, there's a list of 12 witnesses whose

14 statements I reviewed. I think there's no need to mention them all

15 because their names are clearly in the report, and in my version of the

16 report I also have added their -- the numbers on which they are known.

17 Now, you want me to specify for each of them individually?

18 Q. I don't think so, but it was just a request, and I just wanted to

19 make sure that we can all follow. Did you obtain any other statements or

20 testimonies from other witnesses other than these 12 that are reflected

21 in part 2, page 9, of your report?

22 A. Well, apart from what is listed here, and I also have prepared

23 for myself a short summary statement in it here, in my folder for each

24 witness, where the relevant clauses and which page numbers they can be

25 found, just for my own reference, but that illuminates clearly, see,

Page 25191

1 which pages I actually used from for my testimony. Apart from that, I've

2 seen the photo board you just referred to, which is obviously not among

3 those statements relating to these 12 witnesses.

4 Q. Mr. Wagenaar, if I may, I apologise for interrupting. All I want

5 to know is, first, if -- and we'll get to the other documents that you

6 reviewed. Have you looked at other statements or testimony from

7 witnesses for purposes of your evaluation, and we'll get into the other

8 photographs and stipulations, but just with respect to statements and/or

9 testimony?

10 A. No, I have not reviewed statements by other witnesses apart from

11 these 12.

12 Q. Okay. Thank you for that. What --

13 JUDGE AGIUS: Mr. Nicholls.

14 MR. NICHOLLS: I'm sorry to interrupt. I spoke with my friend

15 during the break, and he agreed to try to provide me with the notes that

16 Professor Wagenaar has also kindly agreed to make available and also to

17 look at which transcripts were provided and what was provided, but I

18 would also like -- asked to see these summaries because there are not

19 footnotes to specific pages or reference in the report, and that could be

20 helpful. I'd like all that material that the witness used in the

21 preparation of this report.

22 MR. OSTOJIC: We don't object at all. The three binders are

23 here. I offered to my learned friend that he can have them. I said

24 later tonight, but tomorrow, I think, would be more than fair. But if

25 he'd like he can have them tonight and copy them, or we could have it

Page 25192

1 copied for him, the entire of the three binders, which contain, also,

2 articles and other things that I don't know that we'll touch on

3 specifically, but I have no objection to that at all.

4 JUDGE AGIUS: Is that satisfactory?

5 MR. NICHOLLS: Yes, Your Honour. Thank you.

6 JUDGE AGIUS: Thank you.

7 MR. OSTOJIC:

8 Q. And I think we were discussing, Mr. Wagenaar, other documents

9 that you may have reviewed in connection with your testimony. Can you

10 just highlight some of those for us, and I know now that we're going to

11 go through your binder during the interim period of your testimony, and

12 we'll return the binders, but just so we have it on the record. What

13 other types of materials did you review?

14 A. Apart from these statements, I looked at some visual material.

15 The first one is the photo line-up we've just been discussing. I've

16 looked at a very short video or maybe a DVD that obviously had also been

17 shown to one of the witnesses listed in my report as number 7 on page 9.

18 Q. Just so there's no confusion, that's number 7 of your report, but

19 it's number 21 --

20 A. Yeah.

21 Q. -- Witness number 21.

22 A. Right.

23 Q. Just so that there's --

24 A. Yeah.

25 Q. Sorry.

Page 25193

1 MR. NICHOLLS: I'm sorry. I'm not trying to interrupt. My

2 understanding is out of these 12, there are only 3 that have PW numbers,

3 so for clarity and the record and everything, no objection to using

4 names, or PW numbers might be easier too. We can find the references in

5 the transcript that way.

6 MR. OSTOJIC: In our haste, we just weren't able to confirm as to

7 whether which ones specifically were, so we decided just to assign their

8 number, but we can in closed session, if the Court wishes now, just so

9 that everyone's clear, since we're looking at this table go through each

10 one and identify them by name. I think it may help the Prosecution. We

11 don't have a problem with that

12 [Trial Chamber confers]

13 MR. NICHOLLS: I'm pretty clear on each number. I was talking

14 about the clarity on the record so we don't have to match up this witness

15 -- I don't need any help with this. I've gotten them all written down.

16 I just think for the record it may be easier if we're using names and

17 witness PW numbers rather than witness numbers because then every time

18 it's mentioned somebody's -- we're going to have to go back to a table.

19 JUDGE AGIUS: Yes, I agree -- we agree with you. So...

20 MR. OSTOJIC: Well, we'll clarify that by Monday and have a copy

21 for everyone, and we'll have it specifically tailored that way.

22 THE WITNESS: May I say something about this, Your Honour?

23 MR. OSTOJIC: It's Mr. President's Court, so --

24 JUDGE AGIUS: Yes, of course.

25 THE WITNESS: I hear there are 3 PW numbers. I've got only one,

Page 25194

1 so there is -- I must be informed about other PW numbers. I only have PW

2 number for the witness who is listed as number 12 in my table. I don't

3 have other PW numbers, so if we -- if you ask me to mention names, there

4 might -- something might go wrong there.

5 JUDGE AGIUS: Yea, but that can be sorted out in due course.

6 THE WITNESS: Yeah, but I think I should warn you.

7 JUDGE AGIUS: Yes, yes. Certainly. Thank you. In any case, if

8 we need to go into private session for that particular moment, we can do

9 that.

10 MR. OSTOJIC: Thank you. If I may proceed.

11 Q. Mr. Wagenaar, we were just discussing Witness Egbers which is

12 number 7 on your list of witnesses and number 21 as it's identified in

13 the report, you were starting to tell us that you also reviewed a video

14 or DVD or CD as you referenced it. Can you enlighten us as to what was

15 provided to you in connection with this individual's testimony, if

16 anything?

17 A. You're relating to the video now?

18 Q. I am. I just want to make sure we have it clear. What type of

19 video were you given? Do you remember the length of the video?

20 A. Yeah, it was a very short video. As I remember, it was less than

21 a minute of some sort of parade or so, and Mr. Egbers was shown this

22 video as to a question of whether he recognised anyone.

23 Q. Yeah. And we'll get into the specifics as to the questions and

24 the methodology utilized by the Prosecution in utilizing that video for

25 purposes of identification and recognition. But for our purposes now,

Page 25195

1 all I'm asking you is to set forth for us what other materials you

2 reviewed in connection and in preparation for your testimony.

3 A. Yeah. So I saw this video. I saw a photograph, which was also

4 shown to the Witness number 151, and I think that's about it. I saw no

5 other material as far as I remember.

6 Q. If I can direct your attention to your table number 2, which is

7 Witness number 122, it shows here, says something about snapshots. Can

8 you enlighten us on that?

9 A. Yeah. Yeah. Yeah, the --

10 Q. Thank you. And also, were you shown any pictures at that time of

11 Mr. Beara, and if we can call up, please, 2D572. And it's also attached

12 to a stipulation, and we don't need to bring up the front page of the

13 stipulation because it may identify the witness. I can't recall, but

14 only the annex, and I think the professor will be able to assist us, and

15 it has the ERN number 04652890.

16 A. Yeah. That's the wrong picture.

17 Q. When we scanned it, it didn't come out in colour, obviously, but

18 did you see a black-and-white version or a colour copy?

19 A. I saw a colour copy of this picture.

20 THE INTERPRETER: Would the speakers kindly observe the pause

21 between questions and answers.

22 MR. OSTOJIC: Thank you. I did, and I apologise.

23 Q. And again, so we're clear, did you review any other materials

24 other than those that you've informed us of and recently the pictures

25 that we provided you that are in e-court?

Page 25196

1 A. Yeah. I think with respect to the Witness number 122, it was

2 referred that he was shown a multitude of pictures and that the witness

3 did not recognise the person he saw in these pictures, but...

4 Q. Well, we'll get into --

5 A. I'm not convinced that I myself saw a multitude of pictures.

6 Q. And we'll get into that, and we'll show you 2D597 later today or

7 possibly next week. What about the next witness that you see down there,

8 which is on your category number 8? We saw -- you mentioned the

9 videotapes and the photos. I just want to be clear whether or not with

10 respect to that individual you were shown more than one photo or more --

11 or which type of video was shown to you?

12 A. Well, I must go back to -- I don't remember seeing any other

13 videos than the very short video that I already mentioned to you.

14 Q. I'll come back to that when I show it to you. What about a video

15 that you recently saw with me a day or two ago which I coined the

16 Zivanovic party? Do you remember that video at all?

17 A. Yes, I did. But that was, of course, way after writing my

18 report.

19 Q. Well, we want to know just what you reviewed even up until this

20 afternoon, and that's why I raise the issue.

21 A. Yeah. Okay. Okay.

22 Q. And then it goes on --

23 JUDGE KWON: I'm sorry, Mr. Ostojic. I didn't follow your

24 number. Category number 8? Where do you find this?

25 MR. OSTOJIC: It's in his number 8, and it falls under Witness

Page 25197

1 151. As you may recall, Your Honourable Judge Kwon, that witness was

2 shown a video that he thought that he saw on a television broadcast while

3 he was in detention, and then he contacted the Office of the Prosecution.

4 They were able to obtain a couple of those videos, and they showed to the

5 witness. That's --

6 JUDGE KWON: My question is where we can find that Category 8 --

7 passage referring to Category 8?

8 MR. OSTOJIC: I was simply following part 2 of page 9 of the

9 report, and on the left-hand side column it's -- it's numbered 1 through

10 12, and I start from the left just calling it this Category number 8,

11 which then references the identity of the witness, which is on page 9 of

12 his report.

13 JUDGE KWON: Mine does not have the number, the recent

14 translation that.

15 MR. OSTOJIC: And I can see the confusion. I'm being informed

16 that it's -- should be 2D574, which is the report, and we'll take a look.

17 Perhaps the Court has an older version of the report by Professor

18 Wagenaar, but I think my learned friend has the table. It's part 2 --

19 JUDGE KWON: What I have is a revised report filed on 19th of

20 August. I take it this may be the most recent one?

21 MR. OSTOJIC: No, no. Honourable Judge Kwon, the report that we

22 are referencing and that you should have is a report of the 14th of July,

23 2008.

24 My learned friend is saying one colleague has the problem but my

25 other colleague does not. We'll look into that.

Page 25198

1 JUDGE KWON: We received the revised translation.

2 MR. OSTOJIC: I apologise for that. We just assumed you did have

3 it and --

4 JUDGE KWON: And one more minor question: That Witness 151 is

5 not a protected one?

6 MR. OSTOJIC: No, he is a protected witness.

7 JUDGE AGIUS: Yes, Mr. Nicholls.

8 MR. NICHOLLS: Two things. The one I've got, which I understand

9 was the most recent report has the number 2D42-0333 on the bottom. Just

10 -- is that the most -- is that the one is that the one we should be

11 working off? That's what I understood is the most recent version.

12 2D42-0333 is the number on the bottom right, which I'm told is the one in

13 e-court.

14 JUDGE KWON: We can leave it. Let's leave it there.

15 MR. NICHOLLS: And this one has --

16 [Trial Chamber confers]

17 MR. NICHOLLS: Your Honour, their number 151 is Erdemovic.

18 JUDGE KWON: Yes. He is not protected, that was my... and just

19 for the record --

20 MR. OSTOJIC: I stand corrected, then.

21 JUDGE KWON: And I found four PW numbers.

22 MR. NICHOLLS: Your Honours, he was partial -- he had facial

23 distortion but ...

24 MR. OSTOJIC: Okay. We will look into the protective measures of

25 each, and we will provide that, and honourable Judge Kwon, I do see now

Page 25199

1 in that part 2 that there is no column that I've written down identifying

2 the 12, so therefore, you do not see number 8, and I'm using my draft

3 with my notes on it, and I apologise to you for being presumptuous that

4 you also had that number 9. But I think if we just list them down,

5 there's 12 of them that are listed, and it should be the 8th one as I

6 mentioned.

7 And if I may proceed.

8 JUDGE AGIUS: Yes, yes. Please go ahead.

9 MR. OSTOJIC:

10 Q. Thank you. Sir -- and I apologise that we've created some

11 confusion on our part with the exhibits, and we'll make sure to clarify

12 that so we can have a more smoother discussion next week with you.

13 Just -- we were discussing this number 151, Erdemovic, since we

14 now know he is not a protected witness, and you -- we were talking about

15 some photos, and I think you heard me in answering the Honourable Judge

16 Kwon's question. Do you remember seeing other videos other than that

17 short snippet and the Zivanovic party which you recently saw?

18 A. Apart from those two?

19 Q. Mm-hm.

20 A. Well, if I did, you must remind me to it.

21 Q. We'll get to it.

22 A. Yeah.

23 Q. Any other materials that you've reviewed in connection with your

24 testimony and opinions that you formulated, if you can help us with that.

25 Have you reviewed anything else up until today?

Page 25200

1 A. No. I think everything I reviewed is in those three binders, and

2 I already described to you what it is.

3 Q. You mentioned generally the rules both with respect to

4 recognition and identification. Share with us if you have an opinion as

5 to whether or not these rules are important, necessary, and relevant.

6 A. Yeah. The rules as I described them are based on psychological

7 testing methods that are designed to ensure valid outcomes, outcomes that

8 can be relied upon. So one argument for using those rules is that

9 they're based on the logic of psychological testing, and a recognition

10 test is a psychological test.

11 Another area to look at is at evaluation studies, of outcomes of

12 investigations especially in cases where judicial error could be

13 demonstrated because of later DNA analyses, and by now, the literature

14 reviews over 200 of such cases. And one important publication in that

15 area is by Gross and others in 2003. It is so important because it has

16 the largest number of cases reviewed at any time, in 2004, I must say.

17 It's called Exonerations in the United States, 1989 through 2003.

18 Q. I can't help but notice - sorry - that you're referring to your

19 report. Just -- if you don't mind direct us to where we can find that

20 same page.

21 A. Yeah. You can find that on page 8 in my copy of my report. I

22 hope that the honourable judges have the same page numbering.

23 Q. Just share with us the footnote, if you would. That might

24 assist.

25 A. Yeah. It's in footnote number 10. You see a reference to this

Page 25201

1 particular publication. Now, the bottom line of that research is that --

2 and it's not the only publication, but you find it over and over again,

3 that the majority of -- in the majority of cases, the evidence that first

4 convinced the Court to convict these persons who were later exonerated,

5 the evidence that convinced the Court was to a very large extent based on

6 eyewitness identification, that after all appeared to be mistaken, not so

7 much because witnesses are very bad identifiers or recognisers but

8 because the wrong procedures had been used when they were tested.

9 Q. Okay. And I know earlier in your testimony you reference that

10 there were 50 such rules which set forth the standard you've highlighted

11 for us in your Report 10. Am I correct?

12 A. Yes.

13 Q. I think we've covered one to a certain degree, but we will -- if

14 I can direct your attention to the first section which you talk about

15 identification and recognition, and in the short time that we have, I

16 just wanted to at least complete this one rule. And in the first full

17 paragraph of that next page, which I have it as page 3, you talk about a

18 suggestive post-event information, with the reception of a suggestive

19 post-event information. Can you tell me what that is?

20 A. Post-event information is information the witness receives after

21 witnessing the event on which he will testify so that his memory to that

22 event is not only based on what he actually witnessed but partly also on

23 what other information he obtained later on. The problem of that is that

24 this is not harmful if the witness can make a clear distinction between

25 what he actually witnessed and what he was informed about later on. The

Page 25202

1 problem, though, is that witnesses find that in many cases very difficult

2 and will report some information they received later as information they

3 actually witnessed themselves.

4 Q. Now, share with us, if you will, how is it or why you decided to

5 select these ten rules as opposed to going through or highlighting all 50

6 of them?

7 A. Selected these ten because, of course, they are the most

8 important ones, but they are the most important ones because the other 50

9 some -- the other 40 sometimes apply only in specific conditions, which

10 are not always present, and maintaining these ten is most important thing

11 to do. I would say these ten is 95 percent of the job but especially

12 because if you violate one or more of these ten, that in fact should

13 undermine the reliance on such test already to such a degree that you do

14 not need to consider the other 40 ones.

15 Q. Okay. And just quickly just before we break, if you don't mind,

16 we in Section 2 -- sorry, on page 3 of your report you start to discuss

17 rules for multipurpose -- multiperson identification tests.

18 A. Yes.

19 Q. Rules for multiperson identification test, and these are where

20 these ten rules would be applicable to, correct?

21 A. Yes.

22 Q. When you have -- and just explain what a multipurpose

23 identification test is, if you will.

24 A. A multiperson identification test is what we have referred to as

25 a photo board where the witness actually is asked to look at the number

Page 25203

1 of people of which one is the accused and the others are innocent foils,

2 and the witness is asked to tell whether the person he described before

3 is present in the photo board at all, and if so, to point out which

4 picture or which person that is where the instruction clearly is there

5 can either be one of such people or none. You can point at only one, and

6 you have to make a selection from the whole photo board. The rationale

7 of having a sufficient some of others, of foils there, is that you would

8 like to reduce the likelihood that just by guessing you happen to point

9 out the one person who is the accused, so therefore, you need a larger

10 number of foils there, usually we say at least five foils, preferably

11 something like ten foils or something.

12 Q. And just before the break, do you remember if in the last couple

13 of days I shared with you an information report from the Prosecution

14 which involved the witness by the name of Theo Lutke but referenced one

15 of the witnesses whose testimony you reviewed, and that would be Captain

16 Egbers?

17 A. Yes, I remember a discussion about this Sergeant Lutke who

18 apparently was associated with Captain Egbers.

19 Q. And we didn't provide that to you earlier because -- just so you

20 understand. We were just given that this week, so -- but I did share

21 that with you? That was one of the materials that you reviewed up until

22 to this day?

23 A. Yes. Yes.

24 Q. Okay.

25 MR. OSTOJIC: I think that's all the time we have for today.