1 Thursday, 29 March 2007

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 9.00 a.m.

5 JUDGE ANTONETTI: [Interpretation] Mr. Registrar, please call the

6 case.

7 THE REGISTRAR: Good morning, Your Honours. This is case number

8 IT-04-74-T, the Prosecutor versus Prlic et al. Thank you.

9 JUDGE ANTONETTI: [Interpretation] Good morning to all of you, to

10 the Prosecution, to the Defence counsel, to the accused, and to all the

11 people working in this courtroom. First of all, I have to issue an oral

12 decision in open session. Thereafter, I shall ask to move for a few

13 minutes to private session.

14 First decision. The Trial Chamber is issuing a decision on the

15 admission of evidence through Witness DH who testified on the 21st of

16 March, 2007. The Trial Chamber decided to admit the Prosecution evidence

17 through list IC 00505 on the ground that they do present some probative

18 value and are relevant.

19 The Trial Chamber specifies that Exhibits P 09913 and P 09914 are

20 admitted under seal.

21 Mr. Registrar, you have the floor because you, too, have an IC

22 number I believe.

23 THE REGISTRAR: Thank you very much, Your Honour. The OTP

24 response to the list of documents tendered by 3D through Witness van der

25 Weijden shall be given Exhibit number IC 513. Thank you very much, Your

1 Honours.

2 JUDGE ANTONETTI: [Interpretation] Thank you, Mr. Registrar. Let's

3 move into private session for a few minutes.

4 [Private session]

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14 [Open session]

15 THE REGISTRAR: We're back in open session, Your Honours.

16 JUDGE ANTONETTI: [Interpretation] Very well. In open session, the

17 cross-examination is going to proceed with Mr. Praljak. I believe he has

18 still a few questions; then Ms. Alaburic will have one hour for her

19 cross-examination, and we shall finish the day by giving the floor to the

20 accused as scheduled since last week.

21 Mr. Usher, please bring in the witness.

22 [The witness entered court]

23 WITNESS: NELSON DRAPER [Resumed]

24 JUDGE ANTONETTI: [Interpretation] Good morning, sir. Please sit

25 down.

1 Mr. Praljak, you have the floor.

2 THE ACCUSED PRALJAK: [Interpretation] Good morning, Your Honour.

3 Cross-examination by the Accused Praljak:

4 [Continued]

5 Q. [Interpretation] Good morning, Mr. Draper. As we did not finish

6 reviewing the video material yesterday, I would like the AV booth to

7 prepare the video footage while I ask some questions.

8 You learnt, sir, that approximately 36 members of the army of

9 Bosnia and Herzegovina defended the village of Stupni Do. Did you ask for

10 and obtain the names of the members of BH army in that village?

11 I'm asking you this because maybe we could later by comparison

12 establish which of the victims were civilians and which were members of

13 the BH army. So did you find out the names of the BH army members in the

14 village?

15 A. Only through witness interviews, and I wouldn't have -- I don't

16 think I got the names of everyone. As the witnesses were interviewed,

17 they were asked if they were a member of the defender force. So name --

18 we got names, though I don't think we got them an all. We didn't have --

19 we weren't able to interview all of them.

20 Q. Do you remember how many names you were given?

21 A. No, I don't.

22 Q. Thank you. Did you find out from talking to the witnesses that

23 members of the army of Bosnia and Herzegovina in Stupni Do were dressed

24 some in uniform, some in civilian clothes? Are you aware of that?

25 A. I know that a lot of them were -- lived in the village, so they

1 would dress in their normal clothes. If they had regular uniforms of the

2 BHI -- BiH, I'm not too sure on that.

3 Q. Thank you. On the 27th of October, you noted -- in fact, you and

4 your team found 16 victims. When in March, 1994, you concluded your

5 investigation saying there were 37 victims in Stupni Do, can you tell me

6 how the number of victims increased progressively over the months? If

7 there were 16 in October, how many more were there in November, December,

8 January, and February? Can you give me an idea of the timetable of

9 increase of victims in Stupni Do until the end of your investigation?

10 A. Yeah. At the beginning of the end of the investigation, we had 16

11 bodies from the initial investigation, and then we obtained the list of

12 people that were still living and people that were deceased or not

13 accounted for. These people that were deceased or not accounted for were

14 that list of 38 I think you're referring to.

15 As time progressed and we did interviews, witnesses would come

16 forward and say they -- for example, one was missing seven members of his

17 family and couldn't account for them; then as time progressed and they

18 returned to the village and rummaged or went through the wreckage of their

19 houses, they located the rest of their family members.

20 And as this progressed through November, they were eventually able

21 to account for the rest of the remaining family members and bodies that

22 are on that list of 38 that's included in my report. Some of the bodies

23 were recovered and, I believe, brought to the mortuary later on.

24 MR. KARNAVAS: Excuse me, Your Honour. Perhaps the usher could

25 assist the witness with his headset; otherwise, he's going to be in for a

1 long one hour.

2 THE ACCUSED PRALJAK: [Interpretation]

3 Q. Mr. Draper, please don't give me explanations I did not ask for.

4 My question is precise and clear. Can you give an answer to this Trial

5 Chamber as to how the number of victims increased progressively over the

6 months in the course of your investigation? How many victims did you have

7 on the 27th? How many there were on record in November, in December,

8 January, and February? How did the number of victims increase over the

9 months? If you can't do that, tell me so.

10 A. The original number of victims were pretty well from the outset

11 that list of 38. Confirmation of them didn't come until witnesses were

12 interviewed and confirmed that they had recovered the bodies or portions

13 of the bodies or what was left of the bodies. That's the best answer I

14 can give you, sir.

15 Q. All right. I'm not getting anywhere much. The original number

16 was 16, but can you answer this: If all the remaining villagers had

17 withdrawn to the free territory of the army of Bosnia and Herzegovina and

18 all of them knew one another, most of them had the same surname, how was

19 it possible for people not to know where their five or six family members

20 were, and how was it possible for them to only find out several months

21 later?

22 Didn't you ever have suspicions about the fact that the population

23 of one rather small village finds out that they were missing a dozen

24 members, a dozen men, a couple of months later and they were all located

25 within a relatively small area? Did you have any suspicions then?

1 A. I'm sorry. I probably didn't explain myself. All the bodies were

2 pretty well recovered in November as soon as the villagers got home. I

3 didn't confirm it until I was able to interview these individuals, and

4 being able to track them down and interview them took me up to March 1990.

5 The bodies themselves were recovered fairly quickly.

6 Q. Who recovered those bodies? Your team found them, or did people

7 tell you they recovered them?

8 A. People told me that they recovered them, sir.

9 Q. Very well. Thank you. According to witness statements and to

10 what you concluded with -- after witness interviews, they said that there

11 were approximately 150 people in the village in two or three houses, and

12 they managed to fend off the attack with hand grenades. So 150 people

13 using hand grenades.

14 In that village, from what we heard, there were death squadrons

15 of -- from Apostoli and Maturice armed with RPGs and other heavier

16 weapons, and all of them managed to pull out, reach the HVO check-point,

17 and retreat towards Breza. Never mind where.

18 Please tell me, how was it possible, and how do you explain that

19 150 people did not surrender, wielded hand grenades? They were surrounded

20 by HVO units with rocket launchers, RPGs, hand-held rocket launchers, and

21 that group was not captured, was not killed, a group of 150 men.

22 MR. FLYNN: With respect, Your Honour, I don't think it's fair to

23 ask the witness to answer that question. It calls for too much

24 speculation.

25 MS. ALABURIC: [Interpretation] Your Honours, if you allow me, I'd

1 like to say why the question of General Praljak is appropriate. In the

2 documentation the Prosecution provided with this witness, we have a

3 witness statement from Halid Likic who was a member of the army of

4 Bosnia-Herzegovina, and he was a radio operator in Stupni Do.

5 He said that he was based in a schoolhouse, and he tried to

6 contact the command of the BH army in Boduzelj to get assistance and

7 protection from the UNPROFOR. The command of the BH army did promise him

8 that assistance, and that's probably the reason why BH army members

9 decided to stay in the village and try to defend it. In that sense, I

10 believe this question is absolutely legitimate and justified.

11 JUDGE ANTONETTI: [Interpretation] You have heard the question, the

12 objection as well. General Praljak put a purely military question to you.

13 He's asking for a military explanation. In military terms, are you able

14 to answer or not? If you're not, just say so and then we can move on.

15 JUDGE TRECHSEL: [Interpretation] I think the question should be

16 somewhat amended as put by Mr. Praljak. Here mention is made of 150

17 individuals; and in General Praljak's question, these people suddenly

18 become 150 men. So I don't know how suddenly all these individuals are

19 being identified as being males.

20 THE ACCUSED PRALJAK: [Interpretation] Your Honour Judge Trechsel,

21 I don't know if I said that. One hundred fifty people, I said, not men.

22 JUDGE TRECHSEL: It says "men."

23 JUDGE ANTONETTI: [Interpretation] Indeed on line 23, "there was a

24 group of 150 people." You probably said in your language men or so.

25 THE INTERPRETER: Interpreter's mistake. I apologise.

1 JUDGE TRECHSEL: [Interpretation] It's corrected now, so let's move

2 on.

3 THE ACCUSED PRALJAK: [Interpretation]

4 Q. I said precisely 150 people, some of which were members of the

5 army of Bosnia-Herzegovina; and according to witness testimony we heard

6 here, they were defending themselves with a couple of hand grenades.

7 Opposed to them is what I'm talking about and what we read in the report

8 notorious Maturice units wielding RPGs, hand-held Zolja rocket launchers

9 who blew off roofs, et cetera. That's what I'm asking the witness.

10 If a massacre was attempted against a village and people were

11 defending themselves with only hand grenades, how come there was no

12 capture of those people? They were not massacred, instead they managed to

13 retreat towards the woods. If you don't know the answer to this question,

14 it's fine. It's a military question.

15 JUDGE ANTONETTI: [Interpretation] Without going into speculations,

16 do you have an answer to this question or do you not have an answer?

17 THE WITNESS: From the interviews I did, it appeared that the BiH

18 defenders, once their trench areas were overrun, they returned to the

19 shelter areas and then one shelter told the people to run their shelter --

20 their lines had been overrun so run for the woods. And some did; some

21 didn't. And the remaining BiH defenders that stayed in the village stayed

22 around the shelter areas. I had assumed just to protect their families.

23 As for a military point of view, I can't give any -- any insight

24 there because I was -- all my career I've been a military policeman, not

25 so much a soldier on that aspect.

1 THE ACCUSED PRALJAK: [Interpretation]

2 Q. All that is true. But in the concluding remarks of the report

3 that you wrote and that was submitted to the United Nations, there was

4 clearly indicated what the intent of the HVO was. It's inconceivable how

5 somebody managed to capture all the trenches and then let through all

6 those defenders if their intention was to capture or massacre the

7 population.

8 Now, you were working step-by-step, and at that time I was

9 commander of the Main Staff of the HVO. And I want to ask you: Did you

10 feel the need, you or your superiors, to share the results of your

11 investigation with my Main Staff or any other judicial or political

12 authority of the Croatian Community of Herceg-Bosna?

13 A. That kind of information would have been looked after by BH

14 command legal, not myself.

15 Q. All right. Did you suggest that it would be a good idea to submit

16 that to the Main Staff so that the Main Staff can assist you in your

17 investigation? Did you make that suggestion? I don't know whose decision

18 it was, but did you suggest that it would be a good idea to involve the

19 Main Staff of the HVO in your investigation?

20 A. The only information I can give you there is I did submit a

21 memorandum to BH command legal, requesting that they get ahold of HVO

22 because I wanted to interview anyone involved in the attack on -- on

23 Stupni Do. And a copy of that, I believe, is in my report, and results of

24 that, I think there was two memorandums that came back that I think are

25 also in the report from Koak [phoen], where he talked with, I think,

1 Mr. Banic and an HVO liaison officer.

2 Q. After learning what you learned in Stupni Do on the 27th, Vares

3 had not fallen yet at that time, did you attempt to go to Vares and talk

4 to the civilian police or somebody else? Of the HVO, I mean.

5 A. At the time I believe that we were working out of Kiseljak, and we

6 tried to get some witness interviews first to see what had happened, and

7 then we were restricted from doing any kind of movement --

8 Q. Please, Mr. Draper.

9 A. -- because we weren't allowed to -- we weren't allowed to go back

10 to Vares for a while because the BiH were moving in. So for our safety,

11 the BH command wouldn't let us leave.

12 Q. Thank you. Could we now play again the video clip? I have some

13 more questions.

14 [Videotape played]

15 THE ACCUSED PRALJAK: [Interpretation] Stop here, please.

16 Q. Here, next to this white little bag or sack, we see something that

17 looks a lot like -- and I'm not sure about this. That's why I wanted to

18 ask you. It looks a lot like a casing from an artillery barrel, and could

19 this thing next to the bag be an artillery shell or a grenade -- a mortar

20 grenade? Did you try to explain in your investigation what the object on

21 the left and the object on the right are?

22 A. No.

23 Q. So you did not go on to check whether there was a mortar shell, a

24 piece of a mortar, or something else?

25 A. No.

1 Q. Did you know if the BH army in Stupni Do had a mortar or any other

2 artillery piece? Did you come by any such information?

3 A. Yes.

4 Q. Thank you. I don't need the video footage any more. Could we

5 please retrieve the -- the stills from the footage from the autopsies we

6 saw.

7 I will not be going into this because Judge Antonetti already

8 asked you about the discrepancy between the charred bodies and the

9 surroundings where the bodies were seen, which did not seem to fit into

10 the whole picture.

11 THE ACCUSED PRALJAK: [Interpretation] The autopsy report is which

12 number? Can the Prosecution help me, please? I didn't write down the

13 number.

14 MR. FLYNN: 06314 are the autopsy reports, Your Honour.

15 THE ACCUSED PRALJAK: [Interpretation] The photographs. The

16 Prosecutor showed them for just a second. Not the photographs, the

17 footage that we saw for a very brief time.

18 MR. FLYNN: I understand. These were extracts from 06318.

19 [Videotape played]

20 THE ACCUSED PRALJAK: [Interpretation] Thank you, Mr. Prosecutor.

21 I'm interested in the third or fourth photograph. Let's move on

22 to the next. There's no need for ...

23 The next one, please. Just a moment. The next one. The next

24 one. No, not this one. Stop. Stop.

25 Q. Look at this photograph. I'm -- I find it actually hard to even

1 put questions about this, but look at this area on the right-hand side,

2 which looks like the head of an animal.

3 Could we please play this particular sequence from the start.

4 [Videotape played]

5 THE ACCUSED PRALJAK: [Interpretation] Stop. Could you play it

6 back again?

7 Q. Did you see this burned body? Replay it once more, please.

8 [Videotape played]

9 THE ACCUSED PRALJAK: [Interpretation]

10 Q. Did you see this burned body? Did you satisfy yourself to the

11 full -- stop.

12 The doctors who were part of your team, did they take a look at

13 this, and did they identify this as the charred part of human body or ...

14 A. There was one -- one body that the medical officers wasn't too

15 sure if it was a human or an animal; whereas, the -- some of the medical

16 persons thought it might be a body so we treated it as same. That was on

17 one body.

18 Q. Very well. That was all. Tell me the following: When conducting

19 this investigation, were you guided by the fact that even a crime should

20 be investigated within certain standards, and that one needs to be guided

21 by the factual findings as they will, in fact, lead to the truth and only

22 such an investigation based on such principles can provide adequate

23 vindication to the victims? Were you guided by such principles in your

24 investigation?

25 A. All the standards of investigations I -- I tried to abide by to

1 get to the truth of the matter whatever that would be.

2 Q. Thank you.

3 THE ACCUSED PRALJAK: [Interpretation] Thank you, Your Honours.

4 JUDGE ANTONETTI: [Interpretation] Ms. Alaburic.

5 MS. ALABURIC: [Interpretation] Your Honours.

6 Cross-examination by Ms. Alaburic:

7 Q. [Interpretation] Mr. Witness, my learned friends, good morning to

8 you all. I would like the let the Chamber know that I will be requiring a

9 bit more time than was set aside for me, and I would kindly ask of you to

10 grant me leave to put questions, if they are deemed relevant for you.

11 Mr. Witness, let us first off try and thoroughly analyse the

12 evidence shown to you by the Prosecution yesterday and discussed with you

13 with Mr. Praljak. First, let's clear up some facts.

14 The NordBat is the first of the UNPROFOR forces to have entered

15 Stupni Do on the 26th of October, 1993. According to their information,

16 this took place at 1450. Is that right?

17 A. What day you say? 25th?

18 Q. The 26th. The 26th. You can have a look at the transcript in

19 front of you. It will make it easier for you.

20 Therefore, I said -- I mentioned the 26th of October, 1993.

21 A. Yeah, I --

22 Q. If you do not know that, let's move on. Tell us -- if you don't

23 know, tell us that you do not know because I -- every minute is precious

24 for me.

25 Very well --

1 A. They were the first members in there -- 25th -- I'd have to just

2 check the report there. It's in the report, and that would be the date if

3 that's where you got it from.

4 Q. Very well. You got in on the 27th of October; is that right?

5 A. Correct.

6 Q. You gave a statement to the investigators of the Office of the

7 Prosecutor of this Tribunal on the 20th, 21st, 22nd, and the 23rd of

8 August, 1995. Is that right?

9 A. Correct.

10 Q. On the 22nd of March, 1994, in Zagreb, you made the footage of the

11 scene of the crime, autopsies, and everything else that we've seen today;

12 is that right?

13 A. In Zagreb, that's correct.

14 Q. You were on annual leave as of the 12th of December up until the

15 11th of January, 1993; is that right?

16 A. 1994.

17 Q. 1994. Yes, that's right.

18 A. 1994, in January, correct.

19 Q. Throughout the time, you predominantly dealt with the

20 investigation into the attack on Stupni Do; is that right?

21 A. As well as my other duties, yes. Like I was the main investigator

22 throughout my tour there for this investigation.

23 Q. Very well. In your statement on page 3 of the B/C/S version and

24 on page 3 of the English version, you said that when you entered the

25 village with Major Hunter, you identified the sites where the bodies were

1 located and you identified that there were 11 bodies there. Do you recall

2 this statement of yours?

3 A. I believe it's 16 bodies on the report that I gave the Tribunal

4 investigators. I came over to Toronto, Canada when they -- when they

5 interviewed me.

6 Q. Mr. Draper, let's look at your statement. I read it very

7 carefully. I also checked the B/C/S text against the English, and the

8 sentence literally reads: "We initially viewed a total of 11 bodies." If

9 you wish, we may show you this part of your statement. I'm merely trying

10 to get a confirmation from you as to whether this information contained in

11 your statement is accurate or not.

12 A. The information in the statement, if it's the one I'm thinking,

13 is -- was taken outs of my notebook where my one -- or where my six looks

14 like a one. So when it went into the statement, it was 11. In my

15 notebook my 16 looks like a 1. So when we were reading my notebook, it

16 was transcribed as 11; whereas, in actuality all the information in the

17 reports and from witnesses it's 16.

18 Q. Mr. Draper, can we therefore conclude that the information

19 contained in your statement is inaccurate?

20 A. No.

21 Q. No, it is -- it is indeed inaccurate, or no, I disagree with you?

22 A. No, I disagree with you.

23 Q. You want to say that the piece of information relating to 11

24 bodies found there is accurate?

25 MR. FLYNN: With respect, I think he's already explained that

1 there was a discrepancy in the number 11, and he explained that it should

2 have been 16 on the basis of his notes, and I don't think there's much

3 point in pursuing this much further. It's quite obvious that this part

4 was inaccurate, but it's incorrect to make a sweeping statement that the

5 statement and the information in the statement was inaccurate. Certainly

6 the number was inaccurate at the time and he has corrected that.

7 MS. ALABURIC: [Interpretation] I thank my learned friend Flynn for

8 testifying instead of Witness Draper. For this reason, I will ask

9 Mr. Draper again, because I find his testimony relevant.

10 Q. Therefore, do you agree with the Prosecutor that the piece of

11 information referring to 11 victims in your statement is inaccurate?

12 A. The 11 victims -- 11 bodies it should be, would be more accurate,

13 and 11 bodies is -- is in the statement that was taken by the two

14 investigators that came over to Toronto. That portion right there would

15 be inaccurate, because it was read off my notes improperly where the 6

16 looks like a 1. So when we read my notes, it was 11 instead of the 16.

17 The little loop at the end wasn't completed on the 6.

18 Q. Mr. Draper, was this statement made in such a way that you made

19 some written notes and then the ICTY investigators prepared or made the

20 statement themselves, or was this statement drafted on the basis of a

21 conversation with you which lasted over four days?

22 A. It was made on the basis of their interviews of me with my

23 notebooks in front of me.

24 Q. Does this mean that you misread this figure from your own

25 notebook?

1 A. Correct.

2 Q. Thank you very much. If you still have the Prosecutor's set of

3 documents from yesterday in front of you, or else you can trust me, P

4 07038 -- no, P 07838, which is the letter by the United Nations

5 Secretary-General. In item 8, it says that 14 bodies were recovered.

6 That's on page 2, item 8, halfway through that paragraph. If we get it on

7 e-court, you can also have a look there. Fourteen bodies were recovered

8 in Stupni Do. This is what it says.

9 Can you tell us where does this number of 14 recovered bodies come

10 from?

11 A. I wouldn't know why. I wouldn't be able to tell you that.

12 Q. Very well. To your knowledge, this statement by the UN

13 Secretary-General is not correct; is that right?

14 JUDGE TRECHSEL: This question was answered yesterday,

15 Ms. Alaburic. Yesterday, confronted with this report, the witness has

16 said this report is not entirely correct.

17 MS. ALABURIC: [Interpretation] Your Honour, I don't think the

18 witness was referring to this particular number of 14 recovered bodies,

19 because number 14 was not mentioned yesterday at all. We spoke of the 16

20 recovered bodies. This is the first time we're referring to 14 recovered

21 bodies.

22 Q. Mr. Witness, to your knowledge, this number mentioned by the UN

23 Secretary-General is not correct; is that right?

24 A. There was the 16 bodies. So the 14 bodies, I don't know, you

25 know, when they got their -- their information, what they based it on, no.

1 Q. Mr. Draper, let us try to establish now how many charred bodies

2 there were when you got there on the 27th of October, 1993. Your team was

3 there; that is to say, in Stupni Do, also on the 28th of October. How

4 many bodies were charred? How many did you mention?

5 A. Five of the bodies didn't seem to be touched by fire at all. The

6 rest were in some way charred, and a lot of them very charred. But the

7 three in the cellar, the one on the upper portion of the -- on the road

8 had a charred timber across him, and the one in the woods --

9 Q. You don't have to refer to the bodies individually. Let us try

10 and look at the total numbers, and then if there will be any need to

11 analyse this I will ask you to do that.

12 You said that there were five charred bodies; is that right? I'm

13 sorry. Five were not charred. So there were nine charred bodies and two

14 charred bodies which you weren't certain were actually human; is that

15 right? To clarify what I'm putting to you.

16 A. Yeah. I believe there was one that they weren't too sure whether

17 it was an animal or body.

18 Q. To make a small digression from the charred bodies, in your report

19 which the Prosecutor marked P 06978, in item 2, you said that 16 bodies

20 were examined at seven locations, and this is the figure you use. In item

21 4(c) of your report, you say 14 bodies were recovered which could be said

22 were human. Do you recall this part of your report, or do you need to

23 consult it to see whether I'm accurately representing it?

24 A. Maybe I can just have a look at it to see while we're talking.

25 Q. Perhaps you should take the Prosecutor's bundle of documents, and

1 it will save us a lot of time. Otherwise, we will waste a lot of time,

2 because I will be putting at least 30 different statements from your

3 reports. So we're talking about P 06978, item 4(c).

4 A. Tab number?

5 Q. 6978.

6 A. Page number?

7 MS. ALABURIC: [Interpretation] Could the usher assist the witness,

8 please.

9 Q. I didn't make note of the pages because it's easier to locate the

10 different points, the items, the bulleted items.

11 A. In item?

12 Q. 4(c). "Fourteen bodies were found that appeared human." Is that

13 right?

14 A. Yeah, and the --

15 Q. Page 6.

16 A. Yeah. And this information is based on the NordBat RMPs that had

17 gone into the site. So this would have been on the 26th of October when

18 the regiment MP went through, and this is what they noticed was the 14

19 bodies that appeared to be human.

20 Q. Sir, I must admit that I fail to understand your statement that

21 this information comes from NordBat. At this stage, for the time being,

22 it's not important who the source of the information is. We're talking

23 about the information contained in the report, and I should like to know

24 from you whether you think this information is accurate or not. The

25 information can be found in the report; is that right?

1 JUDGE TRECHSEL: Ms. Alaburic, if you look at number 4 in the

2 report from the beginning, you see that it is a reference made to an

3 interview with one Mr. Gustafsson, and the witness reports that

4 Mr. Gustafsson said the following things. And if Mr. Gustafsson said that

5 there were 14 bodies that looked human and that were found, that's it.

6 How can the witness say something else and report something

7 different from what someone has told him? I do not understand your

8 question, I must say.

9 MS. ALABURIC: [Interpretation] Your Honour Judge Trechsel, if you

10 permit me. We have the statement from this witness that 16 bodies were

11 recovered. We have a different statement that 16 bodies were recovered

12 but that one could say with certainty that 14 of them were human. The

13 figure mentioning 14 persons is also referred to by the UN

14 Secretary-General. I myself am loath to speak of victims in terms of

15 numbers.

16 However, since we are involved in criminal proceedings, I believe

17 I have to go into this. At this point, we find it exceptionally important

18 to establish whether the accurate figure is that of 14 or 16 bodies

19 recovered at the time when they got into Stupni Do.

20 My contention is by confronting the witness with these numbers is

21 to establish the relevance and reliability of some of the figures

22 contained in the documentation provided us to by the Prosecution, that's

23 all.

24 MR. FLYNN: If I may, Your Honour, and perhaps this may help to

25 explain it for you. I can understand Ms. Alaburic's confusion because of

1 the number 11 put into the ICTY statement, but the witness gave evidence

2 yesterday by referring to his report of the 15th of November, which is

3 Exhibit 6978. And you may remember that he was guided in his evidence by

4 the information contained at paragraphs 2 to 4 where he went through each

5 of the crime scenes with you, and he told you what was found in the crime

6 scenes.

7 Now, if you examine that, you will see clearly that between scene

8 1 and scene 7 there were 16 bodies found. So this, in my humble

9 submission, corroborates the fact that this man found 16 bodies with his

10 team, and he reported that to his superiors, who reported that -- who

11 presumably reported it on to their superiors, and eventually it should

12 have found its way to the UN bodies in New York. And he's not in a

13 position to explain where they came up with the 14 bodies. He reported 16

14 bodies, and that's clearly stated in his report of the 15th of November,

15 1993.

16 There is the mention of the 14 bodies, which Ms. Alaburic has

17 pointed out in the same report, but as Judge Trechsel has pointed out,

18 this was quoted from the Norwegian soldiers. This is not his evidence.

19 This was the information he received from the Norwegian soldiers, but his

20 findings were that there were 16 bodies on site.

21 MS. ALABURIC: [Interpretation] I thank my learned friend,

22 Mr. Flynn, again for testifying. I am not confused, I must say, by the

23 numbers, but they are confusing to anyone who to tries to really

24 understand them. The example is this number of 16. The witness himself

25 told us that this number of 16 may include one non-human body.

1 Furthermore, I'm not asking this witness at all about the source of

2 information on those 14 human bodies. I'm just asking him whether the

3 number contained in his report is accurate. The witness can answer it is

4 accurate, it is not accurate, or I don't know.

5 Let us continue with --

6 JUDGE TRECHSEL: Ms. Alaburic, we must be precise, and as

7 professionals one must expect us to be precise. On page 20, line 2, you

8 say, "In item 4(c) of your report, you say that 14 bodies were recovered."

9 So you try to create the impression that there is a contradiction between

10 what the witness put in his report and what he's saying now.

11 But if you had looked carefully at this report, you would have

12 seen that is it not the -- the witness speaking but the witness reporting

13 what someone else told him, and I think this is muddling up things a

14 little. I'm sorry. I do not think this is quite correct, and I think we

15 should perhaps abandon this now.

16 MS. ALABURIC: [Interpretation] Your Honour, I did intend to

17 conclude with this, but let me clarify. It was not my intention to

18 deceive anyone. I just invoked a document in a very brief passage that

19 anyone is able to look and see the context in full. What is important is

20 that this deals with a report of this witness and the fact that he did not

21 question any figures. In fact, I believe that between this number and the

22 number that the witness used, with the reservation that some bodies are

23 not human, there is no real discrepancy.

24 Q. But let me proceed with another issue that I wanted to clear up

25 with you. Let us go back to the charred bodies. Give me the exact

1 number. How many charred bodies were found by you when you entered Stupni

2 Do on the 26th of -- 27th of October, 1993?

3 A. It should be around 11, I think. There is the five bodies that

4 weren't really touched by any kind of burns, so that would give you 11,

5 one which may have been animal.

6 Q. All right. Witness, in the report of the UN Secretary-General,

7 for the record P 07838, in the same passage, which is paragraph 8, we read

8 that out of the 14 bodies that were found there were four men and three

9 women who were identified; whereas, other bodies were charred beyond

10 recognition, burnt beyond recognition. So according to the UN

11 Secretary-General's report, there were seven bodies that could not be

12 recognised.

13 Do you believe there is a difference between the information given

14 in your report and that of the UN Secretary-General?

15 Witness, I would appreciate quicker answers. Because if we have

16 to spend that much time on noticing the difference between 7 and 11, I

17 will not be able to finish before tomorrow.

18 A. Sorry. Where it says four men, two, three -- three for sure were

19 men, three for sure were women. There might have been another man there,

20 but I think they found that out the next day when they turned the body

21 over -- or the charred remains over .

22 Q. Witness, I'm just asking you, is there a difference between the

23 number of charred bodies used in your report and the number used by the UN

24 Secretary-General? Give me yes, no, or you don't see the difference.

25 A. It doesn't say. Some of the charred bodies that they're talking

1 about can -- well, I guess what -- what I'm trying to say is there is just

2 the five bodies that were untouched by flame, and so the rest were

3 charred. And if he says different, that's not what I found.

4 Q. All right, sir. Let's move on. Did you observe in autopsy

5 reports that you obtained, and the autopsy was performed on the 31st of

6 October, 1993, that 12 bodies were described as charred? Did you notice

7 that?

8 A. Quite possibly. It's probably in my report the autopsy results.

9 I'd have to check. I just can't off the top of my mind tell you.

10 Q. All right. Just a few words about the autopsy. In your

11 statement, on page 15 in the B/C/S version and page 9 of the English

12 version, you said --

13 THE INTERPRETER: No microphone, please.

14 MS. ALABURIC: [Interpretation] There we are.

15 Q. So in the statement -- I see that the pages are on record. You

16 said that you found out about the autopsy when you tried to arrange for a

17 post-mortem to be carried out on victims from Borovica. You were told

18 then that the victims from Stupni Do were autopsied. Do you remember that

19 statement, and do you standby that assertion concerning the autopsies?

20 A. I remember that day quite well because they were giving me heck

21 for not attending and finding out about these autopsies being done on

22 Stupni Do bodies, but I didn't know where the bodies had gone, so this was

23 the first I learnt of it. So once I had learnt about that I asked if I

24 could get copies of the autopsy report, and found out that they had a

25 video taken, too, so I asked for that too. I recall that.

1 Q. Did you know at all that there was an intention to carry out these

2 autopsies?

3 A. No.

4 Q. Tell us, was the video recording of the autopsies made by the team

5 that performed the autopsies, the team made up of local Muslims?

6 A. I couldn't tell you, but it was none of my people.

7 Q. But you used that video in editing the footage in March 1994 in

8 Zagreb; is that correct?

9 A. Yeah. I attached the -- when the -- yeah, that video that I got

10 from the Visoko mortuary about the autopsies was attached to that briefing

11 that I did in Zagreb. That's correct.

12 Q. At least according to the evidence presented by the Prosecutor in

13 this case, the autopsies were performed on 20 bodies. Can you tell us who

14 recovered and included in Stupni Do victims those bodies that were not

15 covered by your investigation on the 27th and 28th of October?

16 A. Just through interviews I had learnt that the people from the

17 mortuary, once Stupni Do was in BiH hands again, the mortuary workers went

18 there and recovered the bodies of three people up in the trench.

19 Q. Sir. Sir. Left us separate these things. On the 31st of October

20 autopsies were performed. Vares fell on the 3rd of October, and that's --

21 sorry, 3rd of November, and that's when the BH army had complete control

22 over that area, and what you just said cannot apply to the 31st of

23 October, 1993. Can you explain?

24 A. Yeah. Thanks for pointing that out. I just have to go the report

25 where these autopsies are taking place. What tab is it?

1 Q. Do you know that the autopsies were performed on the 31st of

2 October, 1993? Autopsy reports are under P 06314. But if you are going

3 to review them now, you will need at least a half hour to take in the --

4 the summary of those reports. In that case, if you can't answer, I will

5 move on to another question.

6 Can you answer who it was within those two or three days -- just

7 tell us you don't know. We will get to a real answer. At this moment you

8 don't know who added --

9 A. No.

10 Q. Very well. When you were speaking about autopsies of Borovica

11 victims that you wanted performed, can you explain to us what victims were

12 those?

13 A. I believe the -- it was from another investigation I assigned one

14 of my members to carry out, and they -- NordBat had recovered the bodies,

15 and we -- no one wanted to accept them, and we eventually got them dropped

16 off at the Visoko mortuary. I can't remember if there was two or three.

17 I'm not too sure.

18 Q. Can you tell us were those bodies of Croats?

19 A. I believe they were, yeah.

20 Q. Right. Can we now look at how this list of victims was made?

21 Every time I mention the term "victims list" I will invoke P 09121, an

22 exhibit of three pages, and I will give the page numbers. R0048864

23 through 66.

24 Mr. Draper, when you were asked by General Praljak, you said that

25 you added to that list the names of persons you were told by witnesses had

1 been killed or had disappeared, gone missing. Witness, please don't look

2 at that list now. I just mentioned the number for the record. Could you

3 please focus on the question now.

4 A while ago you answered General Praljak by saying that you, too,

5 added to the list of victims in Stupni Do based on witness interviews.

6 A. I added to the list of living. I don't think I added to the list

7 of -- of deceased.

8 Q. Very well. We'll look in a moment at your statement. In your

9 statement to the OTP, pages 17 of the B/C/S and page 10 of the English

10 version, you said, I quote: "We did not really have a body or remains in

11 each case --" or, rather, "We did not necessarily have a body or remains

12 in every case. If someone was missing and another witness had seen them

13 killed or seen them dead, I added them to the list. If we had a body I

14 would include it, if someone was missing, but I had no indication that

15 someone had seen him being killed or dying, then I did not put them on the

16 list of deceased."

17 Do you remember this statement you made, Witness, and would you

18 make the same statement today?

19 A. That's referring to my own list where I corroborate the death list

20 or the missing list. It's not the original list. This is a list where,

21 as I go down to each person and I corroborate their death, then I would

22 mark it on the list, and that's the list that you're talking about

23 R00848864.

24 Q. Yes. So in that way you came up with a list of 38 victims.

25 A. Yes.

1 Q. Very well. Let us now look at those victims. I'll focus on the

2 most important. One of your interviewees, Ejub Likic, told you that

3 Muamer and Sevko had been killed while in a trench. They were members of

4 the BH army, and their bodies were detected in November 1993. That

5 statement is recorded in document P 08121, point 27(j).

6 These two persons -- or, rather, the three persons that I

7 mentioned, members of the BH army, are on the list of persons killed under

8 numbers 15 and 30. Can you agree, Witness, that on the list of victims

9 from Stupni Do the two members of the BH army I mentioned a moment ago are

10 also included, two persons who were killed in combat?

11 A. Yeah. Those two are on these list of deceased of Stupni Do, the

12 ones that were in the trenches up there. That's correct.

13 Q. The same interviewee told you the following: "Samir Rahic was

14 running from a Serb house at the outside of the village that held nine

15 members of the BH army towards the centre of the village where they were

16 moving, as the attack advanced when he was hit by a sniper."

17 That statement is mentioned in the same exhibit, paragraph 27(a)

18 and (f). Samir Rahic is on the list of persons killed, under number 37.

19 Can you confirm that, Witness, number 37?

20 A. Correct.

21 Q. The same interviewee told you that Salih Nikic was killed --

22 sorry, Salih Likic was killed in the vicinity of a shelter in the centre

23 of the village that was defended by around 14 BH army members. It's

24 recorded in the same exhibit, paragraph 27(ai).

25 Salih Likic is also on the list of 38 persons killed, under number

1 27.

2 A. It would be, yes.

3 Q. Another interviewee, Serifa Likic, said that while they were in

4 hiding, an elderly woman died, later identified as Rasida Likic, and the

5 probable cause of death was exhaustion or heart attack. The statement was

6 recorded in Exhibit P 06978, paragraph 19 F. Rasida Likic is on the list

7 of 38 Stupni Do victims under number 22. Can you confirm this?

8 A. Correct.

9 Q. Can we now agree, after all of this, that the list of victims also

10 includes names of BH army members who were killed in combat?

11 A. It's contained on that list of 38 list of deceased at Stupni Do.

12 That's correct.

13 Q. Can we agree that this list also contained the name of at least

14 one person who is known not to have been killed in Stupni Do?

15 A. Who would that be?

16 Q. Rasida Likic, who died in the woods due to exhaustion or as a

17 result of a heart attack, as witnessed by Serifa Likic. She's number 22

18 on the list.

19 MR. FLYNN: Sorry to interrupt you, Ms. Alaburic. I'm a little

20 bit confuse. When we're talking about the list, are we talking about the

21 list of deceased Annex A?

22 MS. ALABURIC: [Interpretation] Mr. Flynn, at the beginning of this

23 passage, I said clearly that I will be referring to the list of 38 persons

24 killed, which is part of Exhibit P 09121, and I quoted the ERN number.

25 MR. FLYNN: 8121. And the page number again is -- because the

1 reason I'm asking is that I'm looking at the list, and I'm looking at the

2 number that you're giving for the deceased person and it doesn't

3 correspond with what's on my list.

4 MS. ALABURIC: [Interpretation] My apologies. I have been giving

5 you the wrong number all this time. It's in fact 08121. It's simply

6 wrongly recorded in my notes.

7 MR. FLYNN: It's not so much that but it's the individual

8 deceased. For example, Rasida Likic is on Annex A as listed as number 13,

9 but you have given her as number 22.

10 JUDGE PRANDLER: Yes. I wouldn't like to stop you, Madam

11 Alaburic, and I fully respect the rights of the Defence to go on. But,

12 first of all, I believe that probably your time is already off, and the

13 greffier may give us an indication what is the time that is allotted to us

14 about that issue.

15 But, as number two, I would also like to say that with all due

16 respect to everything you and Mr. Praljak have asked today and yesterday,

17 I really would like to draw your attention to the fact that -- that the

18 issues connected to Stupni Do, they are adjudicated facts, and we had -- I

19 mean, this Tribunal had a judgement on -- about Ivica Rajic. And that is

20 why I really feel that many of the questions which you raised somehow, at

21 least to me, do not seem to be in a way those which might help the Defence

22 to establish the facts.

23 Therefore, I have to say that you have to ask questions which

24 are -- which are about the rights of your -- of your accused and those

25 issues which would help you to establish the facts, and not about speaking

1 about autopsies and if one person was a human being or an animal, et

2 cetera. Really, I do not feel that it contributes to what you would like

3 to establish.

4 It is my advice, and again I would say that I am not at all trying

5 to -- to prevent the Defence to do its work, but simply I would like to

6 refer to the facts which have already been established and determined by

7 this Tribunal. Thank you.

8 MR. MURPHY: Your Honour, if I could --

9 MS. ALABURIC: [Interpretation] Your Honours, Judge Prandler, I

10 wish to tell you the following: With connection -- in connection with

11 Stupni Do, there are no adjudicated facts. The events and the attack on

12 Stupni Do on the 23rd of October, 1993, have not been discussed in this

13 case. What does exist is a plea agreement that Mr. Rajic made with the

14 Office of the Prosecutor of this Tribunal and the decision of the Tribunal

15 on sentencing that was based on that plea agreement.

16 What Ivica Rajic confirmed in his plea agreement or contested is

17 of no relevance to us. We believe that our clients must be presumed

18 innocent in full until their responsibility for the events in Stupni Do of

19 that day is proven.

20 As for events in Stupni Do, like in any criminal proceedings, it

21 is important to establish the facts that are alleged by the Prosecution

22 that on a certain day a certain unit attacked a certain village causing a

23 certain number of victims. The indictment refers to 38 victims, and it is

24 of crucial importance for us to establish whether it is indeed the correct

25 number of victims, how the lists were compiled that were later used by the

1 Prosecution to bring this indictment.

2 At the beginning of my examination, I said that I was extremely

3 embarrassed to speak of people and, moreover, victims in terms of

4 numbers. But if the Prosecution alleges that there were 38 victims of the

5 HVO attack on Stupni Do, then it is not only my right but also my

6 obligation to explore whether it is justified to claim the existence of

7 even one victim. I do not want to short sell a single victim of any

8 attack whatsoever, but it is our duty to determine all the relevant

9 facts.

10 And it would be contrary to the elementary rules of my profession

11 to just skip over or gloss over the allegations in the indictment just

12 because we are embarrassed to discuss the victims. In fact, you raised a

13 very interesting topic, and maybe my colleagues wish to make a

14 contribution as well.

15 Honourable Judge Prandler, I have a feeling that in the Vares case

16 a military verdict has already been made, but maybe I'm wrong.

17 JUDGE PRANDLER: Thank you very much, Madam Alaburic, for your

18 explanation, clarification, and I am grateful to you for this. I would

19 like to say that when I mentioned adjudicated facts, I mentioned it not in

20 the sense of a legal term but in a way that what happened in Stupni Do had

21 also been investigated by various organs before, including of course those

22 who had been in Bosnia-Herzegovina.

23 Your papers which you submitted to us in this -- in this bundle,

24 there are many documents which deal with the investigations which -- which

25 HVO actually initiated and which led to the establishment of certain

1 facts. It is what I wanted to say, that those facts had been established,

2 although they have not been included as "adjudicated" facts. It was what

3 I was saying, that to find the true it is not related to autopsies and one

4 or two victims or 13 or 14, but what you would need indeed to show that

5 how your accused are not -- are not involved in those which happened in

6 Stupni Do.

7 And it is from this intention -- my intention was really to help

8 you and not to in a way taking those very technical questions which the

9 witness was not aware of, et cetera, but to -- to speak about those issues

10 which would really help you to establish the facts as far as Stupni Do is

11 concerned. So it is my intention only and nothing else.

12 MR. MURPHY: Your Honour, may I just be heard on this point,

13 because we've spent now the last two weeks listening to testimony which

14 has really been about nothing else except the victims in Stupni Do, and

15 I -- if Your Honour does take that view, I'm very surprised that two weeks

16 ago Your Honour did not say to the Prosecution, "Why are we about to spend

17 two weeks on this subject that has already been adjudicated in the Rajic

18 case?" And for Your Honour now to say that -- that -- Your Honour, we've

19 said before that the Judges of the Trial Chamber in the system under which

20 we operate in do not know what the Defence case is in advance and do not

21 know the nature of all the evidence.

22 Your Honour, I have to say once again it's a very, very serious

23 matter that Your Honour should take that view without allowing the Defence

24 to complete its cross-examination and perhaps down the road other evidence

25 to be given that will indeed reflect on the position of these accused.

1 Your Honour, I have to put on the record my concern about that,

2 Your Honour's intervention. I know it was well-intentioned, but it does

3 raise the issue again of fairness between the parties.

4 MR. KARNAVAS: If I may be heard briefly. I'm even more concerned

5 because here we are now months into the process, and it would appear, and

6 I am saying this with all due respect, but it would appear that members of

7 the Bench do not understand the process in this Tribunal. They don't

8 understand that this is an adversarial setting. They don't understand the

9 presumption of innocence in a sense. They don't understand that the

10 Prosecution has the burden of proof, and now we're pre-judging the events.

11 Last -- two weeks ago I indicated that perhaps --

12 JUDGE ANTONETTI: [Interpretation] Mr. Karnavas.

13 MR. KARNAVAS: I wish to be heard, Your Honour.

14 JUDGE ANTONETTI: [Interpretation] Mr. Karnavas, I won't allow you.

15 MR. KARNAVAS: I wish to be heard.

16 JUDGE ANTONETTI: [Interpretation] I won't allow you to say the

17 Judges do not understand the procedure.

18 MR. KARNAVAS: I am just saying, Your Honour --.

19 JUDGE ANTONETTI: [Interpretation] This is a pure fabrication.

20 MR. KARNAVAS: -- if it was a pure fabrication, then perhaps we

21 would not have this aberration of a trial compared to other trials in this

22 Tribunal. We would not be have a Trial Bench saying you can do this in

23 your case, recognising that the Defence may not have a case to answer, yet

24 the burden has been shifting. We have been trying slowly, gently to

25 educate this Trial Bench to adopt the procedure based on the rules of

1 evidence and based on the Statute, and I'm extremely concerned.

2 And I think again we need to have a hearing to discuss whether or

3 not this trial can proceed or whether we should start afresh, because I'm

4 concerned. Given those comments that we just heard, there seems to have

5 been decisions that have already been made, without even hearing all of

6 the evidence, without giving the Defence an opportunity to be heard.

7 And we're well advanced into the case, and it appears, in my

8 humble opinion, that members of the -- of the Bench, perhaps all of them,

9 perhaps some, I don't know, fully do not understand that the Prosecution

10 has the burden of proof throughout this trial, and this Tribunal and this

11 Trial Bench is strictly here to determine whether the Prosecution at the

12 conclusion of its evidence has met its burden.

13 And that's what I want to say, and again we need to have this

14 hearing. It has to go well beyond the one hour that we're going to have

15 this afternoon to hear from the clients. And I apologise if I have to

16 speak so directly and sharply, but I think it is high time that we get our

17 house in order.

18 JUDGE ANTONETTI: [Interpretation] Wait a minute, Mr. Stewart.

19 THE ACCUSED PRALJAK: [Interpretation] Good morning, Your Honours.

20 Your Honour Prandler, it is not up to us to show, as Ms. Alaburic said,

21 that we had nothing to do with Stupni Do. It seemed to me so far that the

22 Prosecution should have been asked to respond to the following: What has

23 the commander of the Main Staff, who was 300 kilometres away, to do with

24 someone whose facts we are determining 14 years later? We're talking

25 about victims whose numbers have not been established, and many have been

1 appearing in Zenica, and no criminal proceedings were brought to a close.

2 This has not led anywhere.

3 Another thing, Your Honour. It is extremely important as to

4 whether the units the way they were described as hordes, in fact, attacked

5 a village, where at least 193 persons were able to flee. And this of

6 course has to do with the joint criminal enterprise against us. Did these

7 units within the joint criminal enterprise and under my command, in fact

8 enter the village and attack it to kill 120 to 150 persons?

9 Were there among them individuals, smaller groups of people who

10 were mad, intoxicated, drugged, or sick who committed the crimes that we

11 heard of from this witness? We heard about a woman being killed, a man

12 whose throat was slit, and so on and so forth. But all these facts, even

13 if we engage all of our imagination, the Prosecution not once said what

14 the link was between all those other structures and this group.

15 Did Mr. Praljak in fact organise units, issue orders or spread

16 ideas that something like that should be done? If this is not the crucial

17 matter, if this is an adjudicated fact, then I'm going back to what I

18 initially said. Why are we wasting our time? Left us draft the

19 judgement.

20 I believe that what we have to do here is to establish how the

21 number 16 ended up as being 36. What sort of propaganda was there? Were

22 these soldiers wearing a uniform, or were they in civilian clothes? We

23 need to examine a crime by certain standards as the crime has a certain

24 scale.

25 It reaches down to some individuals but does it reach up to Mr.

1 Praljak? If it does, then in your judgement you will render an adequate

2 sentence. We have not, however, established this so far. The

3 Prosecution, you should produce a single piece of evidence that would link

4 us up with those crimes.

5 Let me give you another example. How many generals should, in

6 fact, be tried for what is going on in Iraq? If we look at all those

7 victims and bodies --

8 JUDGE TRECHSEL: We will have to have a break because of technical

9 reasons. I understand your emotions absolutely, but I think it's not the

10 moment to go on very long in that direction because nobody, nobody has in

11 any way made any allusion to the responsibility of the accused. Nothing

12 of that kind was said. It was a remark which did not, did not refer to

13 the issue of -- of responsibility.

14 MR. STEWART: Your Honour, shall I make my intervention after the

15 break --

16 JUDGE PRANDLER: Let me also -- allow me to answer to those

17 questions which are also brought up by Mr. Praljak and others. Again, I

18 would like to say, and I would like to repeat also what Judge Trechsel

19 underlined a few minutes ago, that nobody on the Bench are questioning and

20 making any determination as far as the issue of Stupni Do in relation to

21 the accused.

22 My point was that the -- there are many other issues which could

23 be, in my view at least, more usefully explored by the Defence. And I

24 also refer to those documents which are submitted by Madam Alaburic, which

25 for example contains an order from the Minister of Defence for

1 Herceg-Bosna asking investigation of the -- of the issues which -- and the

2 events which happened in Stupni Do. It is what I said, that these issues

3 could be more explored and then to take into account. And it shows that

4 your own leadership that time was very much -- very much involved in

5 investigation and finding out what -- what was the -- what was really the

6 truth about Stupni Do.

7 And it was my point, and it was my intention, to ask you to speak

8 about this issue and those which are facts. They were more important than

9 some technical details, and that is why I again underline that nobody

10 pre-judge the accused here. I didn't speak about the accused. I spoke

11 about the method of the questioning. I spoke about how the Defence should

12 concentrate on certain important points.

13 MS. ALABURIC: [Interpretation] If I may be allowed. I would only

14 like to make one point in response to Judge Prandler. My

15 cross-examination consists of two parts. In the first part, I wish to

16 analyse the probative value of the documents produced by the Prosecution

17 and on which the indictment rests. In the second part, I wish to show on

18 the basis of my own documents what I believe is part of our Defence case

19 concerning Vares.

20 Had you allowed me to conclude my cross-examination, you would

21 have realised what my intention was.

22 JUDGE ANTONETTI: [Interpretation] Judge Mindua has a question and

23 then we'll have the break.

24 JUDGE MINDUA: [Interpretation] Yes. It's not really a question I

25 want to put. Unfortunately, we don't have enough time. I just wanted to

1 make a comment to the Defence.

2 First of all to you, Mr. Karnavas. You have always made a very

3 useful contribution to the debates before this Chamber, but I'm quite

4 astonished by the sharpness and the harshness of your language when you

5 say that the Trial Chamber does not understand the Rules of Procedure that

6 apply in this jurisdiction. I hope that Mr. Karnavas will soon change --

7 have a change of feelings about this.

8 Mr. Praljak, let me tell you that the judgement has not been

9 drafted yet, of course. Of course, Mr. Praljak is right to say that the

10 burden of proof is for the Prosecution. The Prosecution has to establish

11 the links between the crimes. And the accused are sitting here, so I

12 would like to assure the accuse on that matter and remind the Prosecution

13 of its task here.

14 JUDGE ANTONETTI: [Interpretation] It's 10 to 11.00. We'll resume

15 at 10 past 11.00.

16 --- Recess taken at 10.49 a.m.

17 --- On resuming at 11.13 a.m.

18 JUDGE ANTONETTI: [Interpretation] Very well. The hearing is

19 resume without Judge Mindua who has to sit on the other case. He told me

20 that he would not be able to attend the rest of the hearing today. He'll

21 come back in this case next week.

22 Mr. Stewart, before I give you the floor, I'd like to make the

23 following comment: With respect to the documents that were submitted to

24 the witnesses, we've noticed significant discrepancies in terms of the

25 persons, the individuals who were killed in that village. In the witness

1 statement, the figure of 11 bodies is mentioned. Apparently, the witness

2 said when he arrived in the village he found 16 bodies. That's the first

3 discrepancy; and then we see that in the report of the Secretary-General

4 to the Security Council there is a third figure, a figure of 14 bodies.

5 And when you look at the indictment, you find the figure of 38 bodies.

6 Thanks to the questions put by both parties, we come to realise

7 that there might be a case where a body was either that of a human or of

8 an animal.

9 Furthermore, there is another figure that could have been

10 mentioned by the Defence. The Defence might want to do this, but we are

11 not aware of this. As far as I'm concern, what I did is was I counted the

12 number of autopsy reports, and I came to a total of 20 autopsy reports.

13 That's a new figure that comes into it. Twenty bodies were taken to the

14 morgue, 20 bodies, so another figure appears now.

15 And whilst we were discussing this, I had a look at these 20

16 reports, and it appears that three of these bodies have been identified as

17 bodies of the members of the ABiH; not one, not two, but three. Salko

18 Likic, Muamer Likic, and Sefkija Likic are the individuals concerned. In

19 the autopsy reports, it is stated that these individuals were members of

20 the ABiH. These were not charred bodies.

21 I had the feeling, and I believe that Judge Prandler shared my

22 view, I had the feeling that these salient points of the autopsy reports

23 could have been taken up by the Defence during the cross-examination to be

24 clarified with the witness, rather than going into a lengthy discussion

25 about the figures in the report to the Security Council. Because the

1 document we have here, which is the -- our working document, is the -- is

2 the document where -- that refers to 20 bodies being taken to the morgue.

3 I'm not sure Ms. Alaburic was about maybe to refer to these

4 documents, but there are a lot of questions that could be put to the

5 witness on the basis of the autopsy reports. These autopsy reports raise

6 a number of issues.

7 When my fellow Judge took the floor, he just wanted to focus the

8 attention of the Defence on that point, and I myself was about to do the

9 same, because we have a number of questions about this based on these

10 autopsy reports. The witness might be in a position to clarify these

11 points. That's why we wanted to invite the Defence to better focus on

12 these issues that seem significant to us if we want to really find out

13 what actually took place.

14 Ms. Alaburic, you have the floor again for you to be able to

15 conduct a productive cross-examination, to try and clarify a number of

16 points.

17 MS. ALABURIC: [Interpretation] Your Honour, thank you very much.

18 I would wish to remind, and this is recorded on page 26, line 18 of

19 today's transcript, my question concerning the autopsy and 20 bodies.

20 Thereupon, I asked the witness as to how he was able to account for the

21 discrepancy between these figures and the figures contained in the earlier

22 document, regardless of whether the figure mentioned was 14 or 16 and the

23 witness answered that he could not account for the discrepancy. I myself

24 did not deal in great detail with the autopsy reports.

25 I tried to decipher them and take them from the legal -- from the

1 medical context into the legal context, but I did not wish to inquire the

2 witness about the autopsy reports because the witness himself said that he

3 did not consider himself to have the adequate expertise, and as a military

4 policeman he could not examine with me these medical documents.

5 Now, Your Honours, let me tell you what my intention is in my

6 cross-examination, and I would also like the witness to know what it is

7 that I wish to demonstrate. I wish to demonstrate that after the HVO left

8 Stupni Do --

9 JUDGE ANTONETTI: [Interpretation] Fine, Ms. Alaburic. You're

10 absolutely right. But I'd like to draw your attention to the first

11 autopsy report that should have raised a number of questions. This is the

12 report related to Samir Rahic. Reading this report, I see that he died

13 apparently on the 22nd of October, whereas if you look at all the other

14 reports they mention that the individuals concerned died on the 23rd of

15 October. So how come we have someone who died one day before everyone

16 else? Furthermore, if you look at the second page of the report, you find

17 that this body was completely charred.

18 There's a mystery here. The witness might be in a position to

19 clarify this and tell us what happened when he conducted the

20 investigation. Did he find out maybe that some people were killed before

21 the 23rd? It might be a simple mistake in this document in the date.

22 This person may have died on the 23rd, but that's something that should be

23 clarified.

24 I did not want to intervene at the beginning because I do not want

25 to interfere with the conduct of the cross-examination, but that's

1 typically one of the problems we sometimes identify during the

2 cross-examination and where we wonder why the Defence counsel do not raise

3 these issues, because these are significant issues, in our view.

4 MS. ALABURIC: [Interpretation] Your Honour, since neither the

5 witness nor any of his associates took part in the autopsy process, they

6 merely received these autopsy reports, I did not deem it necessary to put

7 any questions to the witness concerning these autopsies, but I do thank

8 you for your comment that with regard to victim number 1, Samir Rahic.

9 It is indeed written in the autopsy report that he died on the

10 22nd of October, 1993. We can therefore ask the witness whether he can

11 tell us anything with regard to the date of death of this person who is

12 contained in the list of victims from Stupni Do, dated the 23rd of

13 October -- 22nd of October, 1993.

14 THE WITNESS: I believe you're referring to deceased number 38.

15 Is that the one? And, if so, from witness statements and that he did die

16 on the 23rd. A lot of the documents that I was looking over, there were

17 mistakes here and there, maybe, you know, a date of birth or that type of

18 thing so --

19 MR. FLYNN: If I may, the witness -- the deceased does appear as

20 number 36 on the list, not number 38.

21 THE WITNESS: Oh. That would be correct. It would be the

22 23rd of October.

23 MS. ALABURIC: [Interpretation] Your Honour, let me remind you that

24 precisely in connection with this person I put a question to the witness

25 in connection with the statement by Ejub Likic who said that this person

1 Samir Rahic on the 23rd came out of a Serb house and ran toward the centre

2 the village when he was hit by a sniper. In my view, therefore, this is

3 just a typographical error and he indeed was killed on the 23rd of

4 October.

5 If you allow me, I would like to tell you briefly what my

6 intention is in my cross-examination. I wish to establish that Muslims

7 were in Stupni Do in the night between the 23rd and the 24th --

8 THE INTERPRETER: Interpreter's correction, the night between the

9 22nd and the 23rd of October.

10 MS. ALABURIC: [Interpretation] -- and that the villages remained

11 in the area thereafter. Therefore, when UNPROFOR entered the village,

12 they did not come across the village in the state in which the village was

13 when the HVO left. I would also like to say that there were local HVO

14 units in the area, or to be precise there were two also HVO units there.

15 Many witnesses said the same, and there are many HVO documents which --

16 there are many army of Bosnia-Herzegovina official documents to that

17 effect.

18 Furthermore, if I will have any time left, I will try to show that

19 there were attempts on the parts of the Bosnia-Herzegovina official

20 authorities to establish the events in Stupni Do as well as the fact there

21 was the attempts by the government of the Croatian Community of

22 Herceg-Bosna to that effect, and I will also deal with the change of name

23 on the part of Ivica Rajic and some other matters.

24 My colleague tells me that on page 45, line 6, you will see what

25 it is about on the basis of my questions. I will not belabour the point

1 now.

2 Q. Witness, based on your own statement, and that's page 13 in the

3 B/C/S text and page 8 of the English version, you were in Stupni Do where

4 you spoke with the mayor, Husnija Mahmutovic. Do you recall that?

5 A. What date was that? The 12th?

6 Q. On the 12th of November, according to your statement.

7 A. Yeah, I remember being --

8 Q. Very well. You were there. The date isn't important. You said

9 that the mayor told you that one place, which was marked on the map as

10 just a pile of ash and bones, that this one thing was not there when he

11 was in Stupni Do on the 23rd of October, 1993, in the night. Do you

12 recall Husnija Mahtovic telling you that he was in Stupni Do in the

13 night of the 23rd of October, 1993?

14 A. That's correct.

15 Q. Can you confirm for us that a pile of ash, of ashes or bones, that

16 you saw there in November, Mahmutovic had not seen when he was in Stupni

17 Do on the 23rd of October, 1993, according to his statement?

18 A. No, I can't confirm. I'm just wondering if that's the one that he

19 was -- that we maybe thought might have been an animal or a human.

20 Q. In your statement, you say literally, "The mayor informed us that

21 one location which was marked on the map as a pile of ashes and bones had

22 not been there when he was in Stupni Do in the night of the 23rd of

23 October, 1993." Did you faithfully convey Mr. Mahmutovic's statement in

24 this statement of yours?

25 A. That statement was put in -- in the report because that's

1 information that he gave to me. So I put that in there because it was --

2 it didn't corroborate the investigation at that time or didn't flow in

3 with everything that we knew. So I thought that significant, and that's

4 why I put it in the report.

5 Q. Tell us, Mr. Draper, do you remember that your collocutor, your

6 interviewee, Rasim Dafo, also told you that he had returned to the village

7 the night after? Rasim Dafo, D-A-F-O.

8 A. Yes. There were several soldiers who went around that night to

9 look for other survivors. He may be one of them. I would have check that

10 report to make sure that he indeed was him, but off the top of my mind I

11 can't tell you. There were several. Can you give me a page or -- it

12 doesn't matter.

13 Q. I could give you more names of persons whom you interviewed and

14 who said that they had returned to the village, but it is enough for me

15 that you confirm several of the interviewees said so.

16 Is it accurate that several of your interviewees said they had

17 returned to the village on the 23rd of October after the HVO left the

18 village?

19 A. Yes.

20 Q. Very well. Let us see what UN Secretary-General says about this

21 in his report. It's P 07838, paragraph 6, the last sentence. I will read

22 in B/C/S because I don't have the text in English, and I apologise for any

23 errors in translation.

24 "Approximately around 1630 shooting ceased. The HVO started

25 pulling out from the village, enabling the population to return to the

1 village and look for survivors."

2 If we can turn to paragraph 6, the one that I quoted from, which

3 is the next page in the report. There you see in paragraph 6, the last

4 sentence.

5 Mr. Draper, can you confirm that this statement in the report of

6 the UN Secretary-General is accurate?

7 A. No, it's not completely accurate. The HVO enabling the population

8 to return, they were still in the village and the people that went

9 searching through the village had already been in there near the centre

10 shelter area. And once the HVO pulled out, they went to the other shelter

11 areas that they knew about looking for other survivors, and they found

12 them and brought them all back to the main shelter, and then later on that

13 night they -- they left the village into the forest.

14 MR. FLYNN: Your Honours, if I may. Sorry, Ms. Alaburic.

15 The English version of the report of the SRSG uses the words "to

16 go through the village looking for survivors," rather than to "return to

17 the village," so there are two different meanings. To go through the

18 village might imply there are still people there. To return to the

19 village is a different connotation. The English says "to go through."

20 MS. ALABURIC: [Interpretation] I apologised in advance for reading

21 from the B/C/S version. It is true the English text says clearly,

22 "Allowing residents to go through the village looking for survivors."

23 Q. Tell us, please, Witness, can we agree, therefore, that the

24 UNPROFOR units that entered Stupni Do several days later did not find the

25 situation exactly as it was at the moment when the HVO left the village?

1 A. Probably not, because they were still burning on the -- the

2 witnesses were mentioning that the next day they were still doing burning,

3 because they were trying to get back into the village to get some food and

4 milk the cows, and there were people still there -- or HVO still there.

5 So when UNPROFOR came, on -- a couple days later, it wouldn't have been

6 exactly, I would assume, the way it was on the 21st -- or 23rd when the

7 HVO seemed to withdraw around that 1630 hours.

8 Q. Very well. So we agree about this. What and how happened in the

9 meantime we will maybe discuss later when the Prosecution leads the

10 appropriate evidence.

11 Can you now in that context which has not been mentioned before

12 during your testimony; namely, that something occurred during those three

13 or four days, provide us with an answer to the question posed by Judge

14 Antonetti; namely, about the possibility that some bodies were incinerated

15 somewhere else and that some bodies were transported from elsewhere to

16 Stupni Do? Can you at this moment rule out that possibility?

17 A. I wasn't there, so I wouldn't be able to tell you. Anything could

18 have happened, because there was -- you know, there was no security.

19 There was no UNPROFOR units in there. So the only thing that I can go

20 from witness statements is that -- and one other gentleman that -- on the

21 24th, 25th, that went in there with Mr. Rajic. That they were still there

22 at the time, HVO.

23 Q. Mr. Draper, you just said something that has not been uttered ever

24 before in this courtroom; namely, that Mr. Rajic's units came to Stupni Do

25 on the 24th and the 25th. Could you tell us what exactly you mean? Do

1 you mean to say that they were not there on the 23rd, and they only came

2 on the 24th or the 25th?

3 A. No. They were there on the 23rd during that attack, and then UNMO

4 was trying to get into the village. And he finally got Mr. Rajic to

5 accompany him had through the village, and because this UNMO tried a

6 couple of times and they wouldn't allow him to pass the check-point, so

7 finally Mr. Rajic could accompany him through Stupni Do. And he stopped

8 at a couple houses; and in the houses he stopped at, there were the women

9 in the trapdoor that he noticed.

10 Q. In view of that reference before the break to the plea agreement

11 made by Ivica Rajic, do you know, Witness, whether Mr. Rajic came with

12 UNPROFOR units then for the first time? Do you know that?

13 A. I don't know if UNMOs are part of UNPROFOR or not. I couldn't

14 tell you that. But -- sorry.

15 Q. All right. We can move on. I have another topic that I wish to

16 clarify now, namely, which HVO units were involved in the attack on Stupni

17 Do? In your testimony yesterday, answering questions from the

18 Prosecution, you mentioned units Maturice and Apostoli as separate units

19 from Kiseljak?

20 A. Yes. They are.

21 Q. In response to a question asked by my colleague, Mr. Kovacic, you

22 mentioned that HVO units from Mir village were also involved. Do you

23 remember that?

24 A. Yes. There were soldiers from -- from Mir that were involved.

25 Q. All right. Witness, I extracted statements of all your

1 interviewees who recognised members of units from Mir in Stupni Do, namely

2 one interviewee who as you said recognised a unit member from

3 Vares-Majdan. In order not to waste time enumerating all of them, can we

4 sum up and say that a relatively large number of your interviewees

5 recognised members of local HVO units among the attackers?

6 A. I wouldn't go that far. I would go as far as saying they

7 recognised three or four people. I don't know if you call that a unit or

8 not or if they were just -- but they were -- witnesses said that they were

9 from Mir or -- Mir. How many, I can't tell overall, but the ones that

10 were mentioned were recognised by voices or by sight. That's correct.

11 Q. I have extracted statements from 11 of your interviewees who

12 identified approximately 10 persons from the Mir HVO. Can we agree that

13 roughly speaking, at least according to the documents provided by the

14 Prosecution, that is indeed the number of your interviewees who recognised

15 members of the local HVO units?

16 A. Without going through piece by piece that could be correct, but

17 I'd have to, you know, in my mind I can't give you that 10 number, but if

18 I went through my report and corroborate it, then if that's what you did

19 then that's probably pretty close.

20 Q. Let us take it from here. Do you remember that you asked from

21 your associate, Mr. Steward, to clear up the identity of the soldiers who

22 were recognised by your interviewees? Do you remember asking Mr. Steward

23 to do that?

24 A. I seem to remember doing that.

25 Q. Do you remember that his answer to you was that the soldiers who

1 had been identified were from Vares?

2 A. If -- if that's what's in the report, that would certainly be

3 right.

4 Q. That's written in your statement on page 10 of the B/C/S version

5 or page 7 of the English version.

6 As for your interviewees who identified certain people, I will say

7 for the record that some of those statements come from the testimony of

8 this witness. Some come from document P 08121, some from 06978, and the

9 persons are the following: Suada Likic, Amira Likic, Rasim Dafo, Mersida

10 Likic, Rifet Likic, Refik Ukic, Ejub Likic, Refika Likic, Esak Likic,

11 Avdija Likic.

12 Let me just correct a number, the number of interviewees. It's

13 not 11, it's in fact 10.

14 Now, could you please take my set of documents that I hope the

15 usher has given you and look up document 4D 00534. While you are looking

16 for it, 4D 00534, it is a document from the security sector of the 3rd

17 Corps command dated 23rd January, 1993. And it's obviously an error

18 because the year is 1994. It's a report on the security situation in

19 Vares, which describes events in Stupni Do.

20 I would kindly ask you to find the passage in that document that

21 documents the war crime in Stupni Do, and look up the names of the persons

22 who are enumerated and who are said to have participated --

23 MR. FLYNN: Could I -- could I just mention, because I had noted

24 this last night, this is a document that should be properly speaking under

25 seal because it mentions a number of the protected witnesses. So I'd ask

1 that the list doesn't come up -- certainly doesn't come up on the screen.

2 MS. ALABURIC: [Interpretation] I don't mind at all. We can

3 perhaps move into private session.

4 MR. FLYNN: Yes. It's appearing on the screen and I don't want it

5 to appear if public. I draw Your Honours' attention specifically to the

6 middle of the list and you'll see the person I'm referring to.

7 JUDGE ANTONETTI: [Interpretation] Let's move to private session.

8 [Private session]

9 (redacted)

10 (redacted)

11 (redacted)

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6 [Open session]

7 THE REGISTRAR: We're become in open session, Your Honours.

8 MS. ALABURIC: [Interpretation]

9 Q. Let us look together, Witness, at the beginning of paragraph 10 of

10 this report. I will now read in English:

11 "[In English] Describing the incident, many witnesses stated that

12 the HVO attackers were wearing black uniforms with white bands on the left

13 shoulder or green camouflage uniforms. Some had camouflage faces and HVO

14 patches, while others had no identifying marks. Those wearing black

15 uniforms also wore black baseball caps and were suspected to be members of

16 an HVO death squad or special forces unit from Kiseljak.

17 "One survivor believed that HVO from Vares and the Bobovac Brigade

18 from Kiseljak took revenge on Stupni Do as a reprisal of the BiH army

19 offensives in the region, in particular in Kakanj. With only two

20 exceptions, none of the witnesses recognised any of the HVO soldiers as

21 being from the local area, nor did they hear names being used, other than

22 nicknames."

23 [Interpretation] Can we agree, Witness, that the statement in this

24 report to the effect that only two witnesses recognised HVO soldiers as

25 being from local units is not correct?

1 A. That's --

2 Q. Based on your reports.

3 A. Based on the reports, if I have more witnesses in there, I would

4 say there's more local soldiers from local areas than -- yeah, you're

5 right, because what I have in my report is based on witness interviews;

6 and if it says more recognised them, then that would be correct.

7 Q. Tell us, these detachments or death squadrons that are referred

8 to, are they, in your opinion, those Maturice and Apostoli units from

9 Kiseljak?

10 A. I can't give you an opinion on that because the information I

11 reported is just based on interviews I did. I couldn't confirm anything

12 myself. There were -- there were also reports that there were soldiers

13 from Kakanj, and I think one other unit was mentioned by one witness that

14 I interviewed, Sirkosous or something like that, that was another unit

15 that was involved. But I think it was only one person who mentioned that

16 unit. But for the most part they were HVO. They had mentioned, you know,

17 other than the local HVO they were mainly HVO brought in from Kiseljak

18 area.

19 Q. Tell us, did any one of these units, especially those from

20 Kiseljak, according to your information, commit any war crimes in earlier

21 combat activities; and if you know, can you tell us which?

22 A. I can't tell you that, no.

23 Q. All right. Now, Witness, could you look at some documents. I

24 will try to minimise this part of my examination. In my set of documents,

25 could you please look up 4D 00506. It's a letter from Defence Minister

1 Perica Jukic, dated 27 November 1993, addressed to the UNPROFOR in

2 Kiseljak, and the subject is "Request for assistance in investigating a

3 war crime, exposing a war crime," and it says:

4 "Further to our conversations concerning the uncovering and

5 investigation of acts committed which might be tried as war crimes, kindly

6 provide us with information concerning Stupni Do, and especially the

7 following persons (if possible):

8 "1. Dough Mingo Ilijasevic, also known as Como.

9 "2. Ante Ljoljo.

10 "3. Ivica Rajic.

11 "4. Velimir Milicevic.

12 "5. Grgo Bakula."

13 Tell it us, Witness, did you have any knowledge that the Croatian

14 authorities of the community of Herceg-Bosna talked with UN

15 representatives about possible cooperation in elucidating the crimes in

16 Stupni Do that are referred to in the first sentence?

17 A. What tab number did you give me, please?

18 Q. 27 November 1993.

19 A. The yellow tab number, was it 535 that you told me?

20 MR. KARNAVAS: The gentleman can refer to the screen. Please

21 refer to the screen to save time, please.

22 THE WITNESS: And the question you --

23 MS. ALABURIC: [Interpretation]

24 Q. The question was: Did you have any knowledge that the Defence

25 Minister talked with representatives of the UNPROFOR about the

1 investigation into events in Stupni Do?

2 A. Like I said earlier, only that memo that I submitted and those two

3 memos that I got back in reply was the only thing I was aware of.

4 Q. I didn't forget what you said. I want to know if you were aware,

5 in any way, of the efforts made by the authorities of Herceg-Bosna to

6 cooperate with the UNPROFOR in elucidating the Stupni Do case, and did you

7 know that they asked for UNPROFOR's assistance?

8 A. No.

9 Q. All right. Then I will not ask any more about what the military

10 judiciary did or what the authorities of Herceg-Bosna did.

11 Now, concerning the change of name by Ivica Rajic into Viktor

12 Andric, you told us yesterday that this information was given you by

13 protected witness Xray -- sorry, Xray. I think yesterday you revealed who

14 it was; and in document P 82121 in paragraph 30, you noted that

15 information was provided from two independent sources about this change of

16 name into Viktor Andric.

17 My question is: Do you know that this fact of name change was a

18 notorious fact, was common knowledge in the area of Kiseljak and even

19 outside?

20 A. No. Unfortunately, I did not know that the name change had

21 happened until I got this information. I didn't.

22 Q. Very well.

23 JUDGE ANTONETTI: [Interpretation] Ms. Alaburic, there might be a

24 slight problem of translation at line -- or rather, page 57, line 4, with

25 regard to witness Xray, apparently you said, I quote: "Yesterday you

1 revealed who it was." I'm quoting here lines 4 and 5. But yesterday the

2 witness did not give the name of this Xray individual; whereas, if we look

3 at the English sentence now, we have the impression that he gave that

4 name. Is this a problem of translation, or is this a conclusion you drew

5 yourself?

6 THE INTERPRETER: Microphone, please.

7 MS. ALABURIC: [Interpretation] Your Honour, can we move into

8 private session, please?

9 JUDGE ANTONETTI: [Interpretation] Yes, private session.

10 [Private session]

11 (redacted)

12 (redacted)

13 (redacted)

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15 (redacted)

16 (redacted)

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25 (redacted)

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11 [Open session]

12 THE REGISTRAR: We're back in open session, Your Honours.

13 MS. ALABURIC: [Interpretation]

14 Q. Since you have no other knowledge concerning the change of name, I

15 will not be showing you documents between the president of the Republic of

16 Herceg-Bosna and a person named Andric; and from these documents, it

17 transpires that this was indeed Ivica Rajic.

18 MS. ALABURIC: [Interpretation] Your Honour, would I be able to use

19 ten minutes still? I would be able to conclude by that time.

20 Q. Witness --

21 JUDGE ANTONETTI: [Interpretation] Yes, because we wanted to give

22 time to the accused. So, okay, you'll have ten minutes. Please go ahead.

23 MS. ALABURIC: [Interpretation] With my client, I heard that he

24 would be prepared to give up his time to address the Court in exchange for

25 the testimony of this witness.

1 Q. Witness, can you tell me, during the investigation and the

2 drafting of the report concerning the events in Stupni Do and the involved

3 responsibility, did you investigate about the way in which the Stupni Do

4 residents defended themselves and which were the buildings or features in

5 the village out of which the BH army defended the villages?

6 A. The -- the only information I received through the witness

7 interviews indicated that they were the trench areas, because many of them

8 saying they were coming off duty in the morning. They had just had a

9 shift change.

10 As to inside the village, I know they took up defensive positions

11 around the shelter areas where the people took refuge in. Other than

12 that, I had no knowledge or no one gave me any information that there --

13 they had different fortified positions set up in the village itself.

14 Q. As far as the concentration of the forces of the BH army is

15 concerned, the concentration of these forces around the shelters where the

16 civilian population was housed, did you establish whether the BH army

17 opened fire upon the HVO out of these positions?

18 A. None of the witnesses provided that information, but there was one

19 around that 4.30 mark on the 23rd -- or 1630 mark when they were

20 approaching that shelter who said he threw a grenade at the HVO, but no

21 one came out and physically said, "Yeah, I was in the shelter shooting at

22 the HVO." I never obtained that information from anywhere.

23 And I also can't tell you if they were, to begin with, right at

24 the shelters, because there are some shelters where the HVO -- or where

25 the defenders came running to the shelters and said -- or shelter and

1 saying, you know, "Our lines are overrun. Get out of here." So that -- I

2 don't know if -- you know, if they were there.

3 Q. Yes. In fact, my question had to do with the area around the

4 shelters.

5 Witness, from your reports, it follows that certain individuals

6 from the BH authorities, or should I say Muslim authorities, or

7 individuals from Bosnia-Herzegovina gave you lists of persons whom you

8 should interview because they had relevant knowledge concerning the events

9 at Stupni Do; is that right?

10 A. That's right. I --

11 Q. Yesterday, you told us that you, among other things, cautioned

12 your interviewees about the fact that they had to speak about the -- what

13 they personally experienced and not tell you what someone else told them

14 they should tell you. Do you recall this as part of your yesterday's

15 evidence?

16 A. Yes, I do.

17 Q. Can you tell us, did you caution your interviewees in this way

18 because you might have had the information that the BH authorities tried

19 to instruct the interviewees as to what they were supposed to say

20 concerning the events at Stupni Do?

21 A. No, I was purely going by police tactics to make sure when you

22 interview someone it's completely voluntarily, not something else that

23 another witness or someone in authority -- it's just part of a normal

24 caution.

25 Q. Most of your interviewees, based on your notes, before talking to

1 you spoke with some organs of the BH authorities. Did you try to

2 establish whether any of the authorities of Bosnia-Herzegovina had tried

3 to suggest to these interviewees as to how they should testify about the

4 events at Stupni Do?

5 A. I wouldn't have any knowledge on that one.

6 Q. Thank you very much. I have no further questions. Thank you,

7 Witness?

8 MR. STEWART: Your Honour, I was just going to say if Your Honours

9 would prefer I would be happy to leave my comment that I wanted to make

10 until this witness has finished his evidence, but I would like to have

11 Your Honours' assurance that I will then have that opportunity and will be

12 first up and will be able to say that.

13 THE INTERPRETER: Microphone, please, for Mr. President.

14 Questioned by the Court:

15 JUDGE ANTONETTI: [Interpretation] I have only one question of a

16 technical nature related to the way you conducted your investigation. I'm

17 not dealing with the heart of the matter, with the substance of the

18 matter, but of dealing with the way you conducted the investigation.

19 When reading your report, I note that on the 8th of February,

20 whilst you were in a vehicle, an individual approached you, Rifet Likic,

21 and he then told you that there were three people from the village of Mir

22 who took part in the attack. That took place on the 9th of February,

23 1994.

24 As part of the investigation you were conducting, why didn't you

25 try to go to that village to try and find out who these people were,

1 because at the end of your report you listed the names of the suspects.

2 You did not list all the names that were given to you, I've noted that,

3 but you might have interviewed these suspects or identified them, but this

4 was not done, and we can see that at the end, in March, you submit this

5 report to the OTP because the Prosecutor of the Tribunal was then -- had

6 then jurisdiction.

7 Can you tell us why you didn't go further in your investigation?

8 A. The -- I guess the main reason is just doing -- having -- I only

9 had five people that I could count on, five investigators. That was it.

10 And anyone else that I had to get a hold of I had to kind of borrow. We

11 didn't have interpreters. We have to borrow. So setting up any kind of

12 interviews anywhere was very difficult, and especially trying to get in

13 through the confrontation lines into a different part, a lot of times BH

14 command just wouldn't let you leave the compound.

15 So to be able to get through a confrontation line, say to the

16 village of Mir, at the time I would have to get two Cougars, or two

17 armoured personnel carriers to escort us there and there was just no way

18 they -- you know, that could be done. The only way we were able to get

19 two Cougars, at all, at one time was the 12th of November when we were

20 going back to Stupni Do. And right at -- near the end of my --

21 JUDGE ANTONETTI: [Interpretation] If I understand you correctly,

22 you're saying that the BH command did not allow you to go on site, but not

23 the HVO. You said that it's the BH command that did not allow you to go

24 there.

25 A. Yes. As a member -- as a member, we had obey their commands.

1 Sometimes we couldn't leave the compound. Sometimes we couldn't carry out

2 investigations because we just didn't have -- meet the requirements to

3 leave the compound where you had to have at least two vehicles at a time

4 just to go in -- in and friendly area -- or not a friendly area but a

5 non-combat area at the time. You needed two vehicles.

6 I noted in my report, I do believe, that near the end of our tour

7 things were getting a little bit more civil in that area, and that's why I

8 mentioned that. It could still be carried on during an investigation. It

9 wasn't an a complete investigation. It could be carried on by other

10 investigators.

11 JUDGE ANTONETTI: [Interpretation] Fine. No, Mr. Praljak, did not

12 want to put a question to the witness.

13 JUDGE TRECHSEL: Mr. Draper, I have a few small questions, three

14 mainly. The first question: Do you know what the weather was in Stupni

15 Do between the 23rd and the 27th of October, whether it was raining or

16 whether it was dry mainly?

17 A. On the 26th -- 26th, 27th -- the date that I got there I noted

18 that -- in my notebook that it was overcast and was cold enough to numb

19 your hands. I believe some of the witnesses had mentioned that it was

20 raining. I don't know if it was the first night they were in the woods or

21 the second night. One witness that was at a -- no, he wouldn't be able to

22 give you anything on the weather. He had just witnessed the glow of fire

23 above Stupni Do, and I don't know if that could be reflections from clouds

24 or what have you, but that's the extent of the weather I could give you.

25 It was overcast the day we got there, and some witnesses said it was

1 raining and cold during the night they were spending in the woods.

2 JUDGE TRECHSEL: Thank you very much. The second question is a

3 follow-up on a question Mr. Praljak has asked you in connection with a

4 still in the video where one saw what looked like -- like a mortar or

5 anti-tank type of grenade and another cylindric object. You were asked

6 whether you knew, had knowledge of, whether there had been artillery,

7 including mortars in Stupni Do, and you just said yes. I wonder whether

8 you could specify what you have seen with your own eyes or heard in this

9 respect.

10 A. Yeah, to my -- the interviews, the information I got is they had

11 one mortar that was on the hill, Bogos, and that was the first thing taken

12 out. So they weren't able to.

13 JUDGE TRECHSEL: And that's all.

14 A. That's right.

15 JUDGE TRECHSEL: Thank you. And the third question is this: You

16 have seen the 16 bodies that were found in Stupni Do on the 27th, and you

17 have also seen the whole material filmed during autopsies. My question is

18 this: Did you recognise any of the bodies in the autopsy as bodies that

19 you had found in Stupni Do?

20 A. The three women; the guy in the woods; and the guy on the -- that

21 was on the step with the one piece of charred wood across him; and then

22 the one charred body that was -- just kind of had the clothing burnt off

23 and the combat boots left on, that one there. The rest of bodies were

24 just sitting there, and one charred body looked like another type thing.

25 JUDGE TRECHSEL: Thank you. That's all from me.

1 A. And when I said the mortar got taken out, I mean got taken out of

2 commission first thing. That's what started the attack, I do believe, was

3 taking that out.

4 JUDGE TRECHSEL: Thank you.

5 JUDGE ANTONETTI: [Interpretation] One question to follow up these

6 questions with respect to the mortar. I did not quite understand whether

7 this was an ABiH or an HVO mortar. Could you please give us that

8 information to avoid any ambiguity.

9 A. Yeah. My witnesses that I'm talking about when I mention that

10 were the villagers, and one of them had said that that mortar was theirs

11 up on the Bogos trench or hill or whatever it was, and then it was taken

12 out of commission right away. So they weren't able to use it at all. And

13 I don't know if that was confirmed by any other witness, but I do know

14 that one said it for sure.

15 JUDGE ANTONETTI: [Interpretation] Very well. I'm turning to the

16 Prosecution to see if they have any redirect.

17 MR. FLYNN: Just two, Your Honour, and I hope it won't be too

18 long.

19 Re-examination by Mr. Flynn:

20 Q. Mr. Draper, listening to you over the past two days and the

21 evidence which you gave, it is my impression that it is your evidence that

22 you and your team found 16 bodies on site, that further bodies were found

23 by the locals after BiH had recovered the area, and that you were informed

24 of these additional bodies. These had been found by November 1993, but

25 that you weren't able to confirm those deaths until you -- until you had

1 concluded all of your interviews, which did not take place until March

2 1994. Am I correct so far?

3 A. Yeah. And the only confirmation I did was as to the witness

4 interviews.

5 Q. I'd like you just to turn to Exhibit 08121, and that's Annex H,

6 ERN number R0048864. If it assists you, it's just Annex H.

7 A. I'm there.

8 Q. And so what you have is a chart showing on the left-hand side the

9 list of 38 deceased; is that correct?

10 A. Yes, that should be right.

11 Q. And on the right-hand side, you have a number relating back to the

12 list of deceased; and on the extreme right-hand side, you have reference

13 to the reports in which you quoted the witness's statements; is that

14 correct?

15 A. That's correct.

16 Q. And in the middle of the page, you have a list of the witnesses

17 that -- and above that it says, "Death witnessed by DOB; body witnessed

18 by," and you have three stars?

19 A. Yes, I can see that.

20 Q. Taking the first deceased, Abdulah Likic, is it correct to say

21 that four witnesses gave testimony to -- you interviewed four witnesses in

22 relation to this deceased and at that all of the witnesses saw the body --

23 A. I count five not four, but, yeah.

24 Q. Five. All five witnesses saw the body?

25 A. Right and --

1 Q. And all five witnesses also witnessed the death because the date

2 of birth is mentioned?

3 A. No, they didn't witness the death. They confirmed death by seeing

4 the body.

5 Q. And when you have at the top of the page there "Death witnessed by

6 DOB," what do you mean?

7 A. I think that's just a typo that DOB. It was probably brought over

8 from deceased DOB, and just using the computer I -- it's not relevant to

9 what's going on here. And when that "death witnessed by, body witnessed

10 by," it maybe should be death witnessed/body witnessed by. Some of them

11 witnessed them die, and then some of them witnessed the bodies.

12 Q. And it was on the basis of those statements that you confirmed the

13 deaths and put these deaths into your final report; is that correct?

14 A. Yes, sir.

15 Q. Now, lastly, during Mr. Praljak's questioning, he was asking you

16 about your efforts made to find out who was involved and your

17 communications with the HVO. And you made reference to your

18 communication -- to the communication that you had arranged to be sent to

19 HVO through the legal office in Kiseljak.

20 Could you turn to exhibit 6978. Do you have it?

21 A. Yeah.

22 Q. Now, this is your report of the 15th of November, 1993. I'd like

23 you to go to the end of the report on page 00053414 where you have a

24 document in English. I don't believe that this document has been

25 translated and put into the B/C/S version, so I'll read from the document.

1 A. Just let me get there. Okay. 053413?

2 Q. 0053414. It's Annex K.

3 A. Annex K. Yeah, I'm here.

4 Q. Sorry. I gave you the wrong reference; it's 053413. You're

5 correct.

6 Now, this is a letter issued by the United Nations dated the 31st

7 of October, 1993, and it's signed by you; is that correct?

8 A. That's correct.

9 Q. And it's to CO BHCOMD MP platoon, request for information?

10 A. That's correct.

11 Q. Paragraph 1: "As a result of an initial investigation into an

12 armed attack on the village of Stupni Do, Bosnia-Herzegovina, I learned

13 that members of the HVO were the attacking force involved.

14 "2. Allegations of war crimes have resulted from this attack; and

15 in an effort to gather all pertinent information possible for United

16 Nations investigative purposes, it is requested that UNPROFOR Legal or

17 Liaison Officers approach HVO Liaison Officers to solicit information on

18 what HVO unit attacked Stupni Do, their identities, photographs, and the

19 possibility of this investigator interviewing members of the HVO attacking

20 force."

21 And in the concluding paragraph: "Investigation to date has shown

22 that crimes against innocent people in Stupni Do have taken place, and it

23 is hoped that HVO authorities will assist in supporting investigative

24 efforts in determining who may be responsible."

25 So is this -- this was your efforts to make initial contacts with

1 the HVO?

2 A. Yes, that's my initial efforts.

3 Q. And I think your evidence was that you were unable to -- you were

4 unable to interview anybody within the HVO?

5 A. That's correct.

6 MR. FLYNN: Thank you. I don't have any further questions.

7 MR. MURPHY: Your Honour, just for the record, if I could, as a

8 correction I think on page 68, line 11, Mr. Flynn gave the date of the

9 report as the 15th of November. I think on the screen it appeared as the

10 22nd of November. Perhaps that could be corrected.

11 MR. FLYNN: It's -- thank you, Mr. Murphy. It is actually the

12 report that was issued the 15th of November. There were two reports that

13 we referred to during the course of our testimony here at the last two

14 days, and this is a report of the 15th of November with UNPROFOR reference

15 BHCOMD MP.

16 MR. MURPHY: What we had on the screen written in handwriting was

17 the 22nd, so I just raised that to correct it in case there was a mistake.

18 MR. FLYNN: I accept that. The date of the letter certainly was

19 the 31st of October.

20 MR. KOVACIC: [Interpretation] Your Honours, maybe before you

21 release this witness, I wanted to draw the attention of the Trial Chamber

22 to one fact that might inspire a new question from you to the witness.

23 All Defence teams, and your advisors as well, received a letter

24 from the Prosecution on the 27th of March, 2007, after my inquiries into

25 the status of one compact disk containing the statement of that person

1 that was referred to here as Xray.

2 To cut a long story short, we were informed that two interviews

3 were made by the witness with Xray on the 12th of March and the 15th of

4 March. I have reviewed the interview of the 15th of March. It was

5 disclosed in a timely manner by the Prosecution, and I thought I was going

6 to deal with it in my cross-examination, but I had to forego that when I

7 realised the Prosecution was informing us that the recording of the first

8 interview of the 12th of March no longer existed. So the Prosecution had

9 it, introduced it into evidence, and then allowed their recording to be

10 destroyed.

11 There are certain procedures in all institutions that deal with

12 this. It should have been converted into electronic form or processed

13 differently, but in any case that didn't happen and we lost the

14 opportunity to review that first interview and possibly use it to

15 establish the truth. That, unfortunately, did not happen and could not

16 happen due to a certain lack of care on the part on the Office of the

17 Prosecutor.

18 You may have also noticed that the Prosecutor failed to give us

19 any information as to what happened with the box of evidence that the

20 witness seemed to have turned over to his authorities, but I won't go into

21 what was in that.

22 JUDGE ANTONETTI: [Interpretation] It seems that when there was the

23 testimony of Witness Xray on 12th and 15th of March both interviews were

24 recorded. They were forwarded to you, and you sent the 15 March one to

25 the Defence, saying that the 12th March statement was destroyed. So what

1 happened?

2 MR. FLYNN: Unfortunately, I'm not in a position to answer that.

3 There obviously must have been some kind of technical error, but it was

4 found that when -- following -- going back to the tape after it was

5 stored, the tape was erased, destroyed effectively. Unfortunately, I'm

6 not in a position to tell you any more than that other than to say that

7 the tape was unusable.

8 I believe this happened sometime in the -- it may have happened

9 sometime in the late 1990s.

10 JUDGE ANTONETTI: [Interpretation] Yes, Mr. Mundis.

11 MR. MUNDIS: Thank you, Mr. President. Sorry to interrupt my

12 colleague. I believe this was addressed in a letter which Ms. Winner is

13 attempting to locate at the moment. My understanding is that it was

14 simply a question of magnetic audiotape which degrades over the course of

15 time, and as Mr. Kovacic indicated, perhaps could have been transferred

16 into a digital format, but unfortunately that was not the case. It's not

17 a question of the tape itself being destroyed.

18 It's simply a question of audiotape as magnetic audiotape, as many

19 people know, degrades and magnetic videotape as well degrades over time,

20 and it was simply a question of this tape was in the evidence unit. And

21 when we went to retrieve it and made copies to disclose it, we then

22 discovered that, in fact, there was nothing left on the tape because of

23 the degradation of what had been recorded on that tape. And I believe

24 that this is covered as my colleague indicated in a letter of the 27th of

25 March, 2007.

1 JUDGE ANTONETTI: [Interpretation] Yes, but this audiotape still

2 exists; right?

3 MR. MUNDIS: Perhaps physically it exists, but there's nothing on

4 it. It is simply a question that the recording has degraded to the point

5 where there's nothing left on the tape.

6 JUDGE ANTONETTI: [Interpretation] Well, this could be admitted as

7 technical explanation.

8 Yes, Mr. Praljak.

9 THE ACCUSED PRALJAK: [Interpretation] As for the technical

10 explanation, every layman let alone the Prosecution knows that it's not

11 the tape that degrades; it's the magnetic recording on the tape. Any

12 magnetic change due to spots on the sun or whatever contributes to erasing

13 the recording. Every layman knows that that is the reason why such

14 cassettes are kept in special Chambers such as Faraday's cage.

15 JUDGE ANTONETTI: [Interpretation] Well, I believe that Mr. Praljak

16 said what had to be said on the issue.

17 Well, on behalf of the Trial Chamber, Witness, I thank you for

18 coming to testify here as a Prosecution witness. Have a good trip back

19 home.

20 We are now going to have a 20-minute break --

21 MR. STEWART: Before or after the break for me, Your Honour, I

22 don't really mind which as long as it's going to be one or the other.

23 JUDGE ANTONETTI: [Interpretation] After, after the break.

24 MR. STEWART: Thank you.

25 [The witness withdrew]

1 --- Recess taken at 12.38 p.m.

2 --- On resuming at 12.58 p.m.

3 JUDGE ANTONETTI: [Interpretation] Very well.

4 MR. FLYNN: Your Honour, with Mr. Stewart's kind permission,

5 before you go into any other business, I wonder if we could slip into

6 private session for just two minutes.

7 JUDGE ANTONETTI: [Interpretation] Yes.

8 [Private session]

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 [Open session]

22 JUDGE ANTONETTI: [Interpretation] Mr. Stewart.

23 MR. STEWART: Mr. Flynn was nice enough to raise that we me which

24 I appreciate. Your Honour, it's 10.39. Your Honour invited me to wait a

25 minute. It's been a longish minute but here we are. Your Honour, my

1 submission is to express and endorse concern about a number of matters

2 which fell from Your Honour's lips should morning, and particularly

3 despite some explanation, which has been offered, concern about the

4 reference to adjudicated facts, particularly by His Honour Judge Prandler,

5 because when at page 33 Judge Prandler said that "when I mentioned

6 adjudicated facts, I mentioned it not in the sense of a legal term. "

7 Well, Your Honour, I rather feel that Judge Prandler would agree

8 that it is better when a specifically technical legal term in this

9 Tribunal such as adjudicated facts is used that it should only be used

10 when it is intended to mean exactly that; otherwise, it leads to

11 confusion. But the substance of the matter is that actually the original

12 reference a couple of pages previously by His Honour Judge Prandler did

13 specifically mention the judgement in a previous case. So the

14 overwhelming impression from that paragraph, without subjecting it to an

15 analysis this morning - although, I can assure Your Honours that we will

16 be subjecting it to an analysis this afternoon - the overwhelming

17 impression is that it was adjudicated facts in the technical sense which

18 the Court had in mind at that stage, whatever corrections there may have

19 been subsequently.

20 But bearing -- remembering always that adjudicated facts

21 themselves are not absolutely conclusive. They do in effect relieve the

22 Prosecution of the need to bring their case on that matter, and they do

23 rather shift it to the Defence then to challenge and meet those adjudicate

24 the facts. But when the Court in the explanation offered primarily by

25 Judge Prandler moved away from the technical concept of adjudicated facts

1 to the slightly looser concept of established facts, arguably that makes

2 the position worse, because when one is talking about established facts

3 that carries the connotation of something which is then not even open to

4 rebuttal.

5 And it is extremely important, and we suggest that we have seen in

6 the course of the last witness's evidence, how the complexities of a

7 factual situation, such as Stupni Do, do require the most careful sifting

8 of what is truly evidence as compared with what is either not truly

9 evidence or what is not reliably evidence.

10 We have, of course, first-hand evidence of a witness's own

11 observation; and on the assumption that he's telling the truth, that's of

12 course the top level of evidence, if you like. First-hand, I saw it, if

13 there isn't a doubt about the witness's honestly.

14 We have 92 bis or 92 ter statements with cross-examination.

15 They're a substitute, but they came to the same thing in the end subject

16 to credibility. They are indisputably, once they are in, they are

17 evidence.

18 We then have that slightly less satisfactory category which causes

19 a lot of trouble and confusion and needs very careful scrutiny of hearsay

20 evidence in this case. Bearing in mind that we're not even restricted or

21 the Court does not restrict itself to first-hand hearsay, we seem to have

22 any degree of first-hand evidence and that does cause difficulty. But as

23 you move further and further away from the person actually giving

24 evidence, a particular person giving evidence orally, it becomes more and

25 more dangerous to rely on that evidence and treat that evidence as

1 established in its own terms and as establishing a fact.

2 And when we look at documents such as United Nations Security

3 Council reports to or from the Security Council, and this is something

4 much better said in the absence of a witness, one has to be especially

5 careful because there are all sorts of agendas there, but legitimate

6 agendas. I'm not suggesting there are legitimate agendas, but there are

7 political agendas. Sometimes they're not legitimate; sometimes they're

8 the agenda of the people writing the reports or receiving the reports.

9 And the fact that something appears in an UN report, the Court must

10 approach it very carefully because the investigation to establish what

11 happened, for example, in relation to Stupni Do, is precisely the

12 investigation which this Tribunal is now doing.

13 . And it's -- it's also the search for the truth concept, as my

14 learned friends have often emphasised and so have we. That investigation

15 is in the particular form of a trial where the only conclusions that this

16 Trial Chamber can draw, in the course of its investigation, are

17 conclusions based on the evidence. And even if the Trial Chamber

18 ultimately feels that perhaps in history or out in the real world as it

19 actually happened perhaps something different might have happened or

20 perhaps there's some uncertainty, that isn't the point, because that way

21 lies disaster.

22 If you ever start going beyond the evidence, even if sometimes and

23 it does happen - I'm not saying this about Stupni Do - but sometimes when

24 Judges are judging a case, and actually I have sometimes sat in that

25 position and known, sometimes, the result cannot be -- one has a feel it

1 cannot be quite the way the evidence brings it out. But none of the

2 stories quite fit, but you have to do your best. Because going beyond the

3 evidence to some other realm, some other version of history is a complete

4 disaster and fundamentally is the most severe encroachment upon the rights

5 of these men sitting behind me who are on trial.

6 So with all that, Your Honour, I must finish, I'm afraid, by

7 saying that the -- and of course I've discussed this with my colleagues.

8 We do that in a responsible way, naturally with Ms. Alaburic, of course,

9 because we're a team here, but with our own colleagues. We are extremely

10 concerned about a number of things said this morning. We are particularly

11 concerned that, at the very least, the impression has been given that in

12 relation to these complex events in Stupni Do conclusions have already

13 been reached.

14 And, Your Honours, we are going to have to look very carefully at

15 it. We are going to have to analyse it, and we are going to have to

16 consider it, because it's a matter which has arisen in the context of

17 previous cross-examinations where we -- we sometimes have received the

18 message, well, don't go on cross-examining because we know what the

19 position is, and that's the whole point, Your Honour. Our job, as Ms.

20 Alaburic made clear this morning, our job is to test that. Our job is to

21 ask the questions so that very often the Defence position is, Your Honours

22 will see it's not that simple. It's not the way the Prosecution said it

23 was.

24 JUDGE ANTONETTI: [Interpretation] I am going to give the floor to

25 my fellow Judge, but as far as I'm concerned I want to specify two things

1 in relation to what you said. I agree with most of what you said inasmuch

2 as cross-examination aims at establishing the truth, seeking evidence. I

3 agree on that. And the best proof of that and that we brought in the last

4 few weeks is that I asked the question myself of the witness to know

5 whether the bodies had been charred on the spot or elsewhere. So this

6 shows that Judges have questions and that by asking those questions with

7 the help of the Prosecution and the Defence teams we try to understand

8 what happened. So there's no conclusion drawn as to the facts, and the

9 questions we put are ample evidence of that.

10 With regard to the connection with the Rajic case, it seems to

11 have been said but I'm not in my colleague's mind, I think that he meant

12 that some facts had been established in the judgement issued on the 8th of

13 May, 2006, by Trial Chamber I, but the fact that Trial Chamber I issued a

14 judgement does not mean that we depend on it, hence our questions which

15 aim at verifying each and every fact.

16 JUDGE PRANDLER: First of all, let me thank also the Presiding

17 Judge, Judge Antonetti's words, and let me also thank to Mr. Stewart for

18 his statement. I am also grateful to those statements and comments which

19 have been previously made by -- by Mr. Karnavas, by Madam Alaburic, and

20 Mr. Murphy. I can only assure all of you that it was a very important

21 matter which I tried to convey, but it was not at all in the way as it

22 could have been understood, and my only intention was to urge the Defence

23 mainly to make use of its time to concentrate on major issues. And

24 Madam Alaburic, herself, in a way has already answered before the break,

25 and also he has done it -- she has done it - I'm sorry - for during her

1 cross-examination that she concentrated on those documents which have --

2 which I also have referred to. For example, from the statement -- letter

3 sent by the Minister of Defence of Herceg-Bosna. She also referred to the

4 United Nations documents. And here I -- what I had in mind, indeed it was

5 those facts that had been already incorporated in previous documents, but

6 of course when I used the "adjudicated facts" expression, as I already

7 explained, it was not meant to be used from a legal point of view, and I

8 used it in inverted commas in the current thesis and I do believe that

9 certain facts had already been at that time accepted by the leadership and

10 the government of -- of the Croatian Republic of Herceg-Bosna as far as

11 Stupni Do is concerned.

12 So there was nothing in my mind that would have prejudged the

13 responsibility of the accused. On the contrary, I always felt that their

14 interests and the truth should be followed and should be found and it is

15 what in the future will also guide me as far as my own activities as being

16 a Judge in Trial Chamber. So it is what I would like to say again to

17 emphasise emphatically that it is far from me to pre-judge the situation.

18 It is far from me to draw conclusions beforehand. And what mentioned by

19 Mr. Stewart that if I would have given the impression that the conclusions

20 have already been made, it is not at all what we are talking about, and I

21 again would like to say that no conclusions have been made either by the

22 Chamber nor by myself, and it is what I would like to make it open and for

23 the record.

24 Thank you for your attention.

25 JUDGE ANTONETTI: [Interpretation] Yes, Judge Trechsel.

1 JUDGE TRECHSEL: This seems to be the round of confession of the

2 Judges. I would say that my position is probably as radical as that of

3 the Defence. I am on record. I have published this two times in some

4 years distance. That in my view the justice element in the administrative

5 -- in the administration of justice lies primarily in procedural justice.

6 I am entirely behind the oft English quote that "justice must also be

7 seen to be done." I am not of the opinion that counsel for the Defence

8 has to put questions which aim at finding the truth. Your task consists

9 to a large extent in creating doubts in our minds which sometimes is not

10 pleasant for us to experience because everyone who is faced with a problem

11 starts even unconsciously forming ideas and views, and it's your task to

12 disturb this on both parties, whatever the tendency is. And we have to

13 bear this and to listen it perhaps with more patience than I myself have

14 always shown. I have sometimes perhaps been a bit temperamental and for

15 us, I do not agree that we can sit here, just listen, and forget about the

16 truth, because it seems quite clear that the Rules of Procedure charge the

17 Chamber with exercising its control of the proceedings in the interests of

18 the establishment of the truth.

19 In this respect, our proceedings, in my view, are not hundred per

20 cent the same as in a -- what is often called here an adversarial system.

21 I think this term could be elaborated. I do not want to continue this,

22 but I thought it would perhaps be befitting that not only two of the

23 Judges here state their views on this fundamental matter.

24 JUDGE ANTONETTI: [Interpretation] Thank you. So we have half an

25 hour left. The accused were to intervene. But since they're going to

1 speak to a subject that has to do with the right the accused have to put

2 questions, the Prosecution had asked to speak first, because this was a

3 topic they had on their agenda. So we're going to listen to the

4 Prosecution, and if time fails we shall continue.

5 Yes, Mr. Prlic?

6 THE ACCUSED PRLIC: [Interpretation] Your Honour, Judge Antonetti,

7 I don't think the topic was the right of the accused to put questions. At

8 the least on the record, last Thursday, you said that an hour will be

9 given to the accused to speak about the case itself, procedures, and other

10 questions, not the right of the accused to put questions. I, for

11 instance, waive that right for my own reasons that I also wish to mention

12 today.

13 So if you did promise an hour to the accused to speak on various

14 issues, I believe it's important to comply with that.

15 JUDGE ANTONETTI: [Interpretation] You will have an opportunity to

16 deal with all the subjects you mentioned, but it so happens that the

17 Prosecution had mentioned this as part of their agenda. So when we saw

18 your Defence counsel last time, it had been said on their behalf that this

19 subject would be dealt with only when you were going to be present. So

20 we're going to do it now in your presence, and, needless to say, you can

21 then say anything you want to say after to the other subjects.

22 But first to the Prosecution, because they wanted to speak about

23 the right the accused have to put questions.

24 Mr. Scott or Mr. Mundis?

25 MR. SCOTT: May it please the Court. Good afternoon to everyone

1 in the courtroom.

2 I'm just going to take a very few moments to address this, at

3 least in the first instance, and then we'll reserve the balance of my time

4 to equal whatever time the Defence or the accused are given to speak,

5 which given what's been said may not be finished today, since I note we

6 have substantially less than an hour to go.

7 Your Honour, the Prosecution has raised the issue of the

8 participation of the accused themselves in this proceeding, in the context

9 of the ongoing concern that everyone in the courtroom has had, including,

10 of course, the Judges but also the parties on both sides, I think, in

11 various ways, as to the efficient use of court resources and time.

12 The Prosecution is concerned that the practice that has developed

13 in the past months in connection with the participation of the accused in

14 the courtroom proceedings has deviated very, very far from the original

15 concept that the Chamber ordered back in April of 2006. I went through

16 the other day, and I have with they excerpts from various transcripts over

17 the past whatever it is now, 10 or 11 months, and I went through and

18 searched a number of places where the issue came up.

19 But in the interests of time let me just say this: It's really

20 all captured in the Chamber's revised guidelines dated the 28th of April,

21 2006, in which the Trial Chamber was quite clear, and this is in section

22 II, Questioning of witnesses, sub-part (C).

23 "Witnesses shall primarily be questioned by counsel for the

24 accused. In exceptional circumstances and after authorisation of the

25 Chamber, an accused may directly address and witness and put questions to

1 him or her."

2 And obviously the most -- the operative language there being

3 "exceptional circumstances." And the Prosecution at least at this

4 juncture does not take issue with that. We will allow for the possibility

5 that that truly -- that on truly an exceptional basis, there may be indeed

6 be justification for the accused to put questions to a witness above and

7 beyond and separate from the questions put by his counsel. I say "his" in

8 this instance because we don't have any female accused in this proceeding.

9 But as a matter of principle, his or her counsel.

10 That is the standard and the practice, Your Honour, that we should

11 go back to the Prosecution submits. It is the one that applies in all

12 other proceedings in this Tribunal. Frankly, Your Honour, the way it's

13 evolved -- Your Honours, the way it has evolved is we've created a

14 situation and a new procedural practice previously unknown at the ICTY,

15 and that is to have a -- an accused who is both fully represented by quite

16 capable counsel, very experienced ICTY counsel who has appeared on a

17 number of cases here, and who I have great respect for, and, an accused

18 who is fully, essentially also simultaneous represents himself.

19 That's the only way you can characterise it because, in particular

20 Mr. Praljak, it has not been exception to the rule; it has become standard

21 practice. The Chamber virtually turns to him with virtually witness, as

22 if that is the standard practice to be expected that he, Mr. Praljak, is

23 going to participate in the proceedings. That has moved us very far

24 afield from the Chamber's April 2006 guidelines, which said this would

25 only be allowed on an exceptional -- in exceptional circumstances.

1 I also note that even that allowance was only in the context of

2 putting questions to witnesses on an exceptional basis. It did not make

3 any provision for standing up and making ongoing running commentary for

4 engaging in legal argument, legal argument in addition to counsel, and

5 otherwise participating in the proceedings.

6 And, Your Honour, the Prosecution submits and requests that the

7 Chamber return to the original practice as stated in April 2006, and that

8 is that in this case with everyone of the accused fully represented by

9 fully capable counsel, and in many instances more than one counsel, if not

10 all, that that is the standard practice in this Tribunal. Mr. Praljak and

11 the others are not unrepresented. They are not representing themselves.

12 They are represented by counsel, and the vast, vast majority of the

13 proceedings should be conducted by counsel. And only on a truly

14 exceptional basis should the accused themselves have in this circumstance

15 have any role to play.

16 I'll just comment on this, Your Honour, and then I'll reserve the

17 balance of my time as to the way the Court wishes to proceed or how the

18 Court wishes to hear the accused. Let me say this: The taking by time by

19 anyone else in the courtroom does impact on the Prosecution. Why do I say

20 that? Because someone might say or suggest, or one of the Judges might

21 think what difference -- what difference does it make? Why should

22 Mr. Scott or Mr. Mundis, the Prosecution, be concerned about the time

23 taken by somebody else which the registry will duly record as time taken

24 by Mr. Kovacic or Mr. Praljak or somebody else?

25 The reality is this, Your Honour, and we've said this before.

1 It's not the first time the Prosecution has made this observation, and

2 it's a pragmatic one and I think a fair one. The reality is that when the

3 Chamber becomes at various points in time concerned about the passage of

4 time, concerned about the trial -- how the trial is proceeding, and how

5 much calendar -- how many calendar weeks are passing, the Chamber becomes

6 concerned and, with respect, often reacts, as it has twice now, by cutting

7 the time for the Prosecution case, regardless of who has taken the time.

8 When the Chamber becomes frustrated with the time devoted to the

9 trial, it doesn't say, in our respectful submission, the true thought

10 process is not "Well, we can't hold this against the Prosecution because

11 it -- it wasn't the Prosecution who used this time. It was Mr. Praljak

12 who used this time. It was somebody else who used this time. So we can't

13 hold that against the Prosecution." But whose case gets cut? Whose time

14 is cut? The Prosecution's time is cut. And that's why this directly

15 impacts the Prosecution's right to a fair trial and the issues that

16 continue as the Chamber knows continues to be outstanding in that respect.

17 I just finish with this, and that is just for the record, Your

18 Honour, and just to put this again as concretely as possible, and I only

19 have the numbers, the most recent numbers from the registry, the official

20 numbers as of the 19th of February, 2007. And it may be useful, and I

21 might suggest that it may be time to have a more updated set of numbers.

22 But as of the 19th of February, 2007, Prosecution had used a little over

23 in toto since the beginning of trial about 153 hours for the entire

24 presentation of its case in chief.

25 Now, in contrast to that, Mr. Praljak alone, I'm not even

1 including Mr. Kovacic's time, Mr. Praljak alone had used more than 33

2 hours. Now, that is more than a fifth of the entire Prosecution time.

3 More than a fifth of the entire time allowed to the Prosecution to present

4 its case, and we don't think that's appropriate. We think -- we invite

5 the Chamber, we request the Chamber to return to the practice and the rule

6 that it set at the beginning of the trial. And that is the participation

7 of the accused should be limited to putting questions to witnesses on an

8 exceptional basis, should not include running commentary, should not

9 include speeches, should not include legal argument, but only putting

10 questions to witness on "an exceptional basis."

11 Thank you.

12 JUDGE ANTONETTI: [Interpretation] Mr. Kovacic.

13 MR. KOVACIC: [Interpretation] It's a legal issue. I would kindly

14 ask you to give me the floor and maybe perhaps Mr. Praljak can speak, but

15 this is more about law than common sense.

16 I would like only briefly to reply to this argument made by the

17 Prosecution. Let me say that my learned friend invokes primarily the

18 practice in this Tribunal. May I remind you that the practice in this

19 Tribunal was established as a result of the right of the accused to

20 silence. In the history of the Tribunal, the vast majority of the accused

21 were silent throughout their proceedings and acted more as objects and

22 subjects in the proceedings.

23 So to invoke practice as an argument is very, very questionable.

24 The practice is still such that most of the accused believe it is better

25 for them to refrain from participating directly in the proceedings.

1 Second, there is no doubt that an accused has the full right and

2 freedom to decide the mode of their defence independently. They have the

3 right to defend themselves by silence. They have the right to speak.

4 They have the right to actively or less actively participate in their own

5 defence.

6 The situation in our case is such that in this Tribunal most of

7 the accused did not even wish to participate in mounting their defence

8 case, but that's their right. That's not the issue here. The issue here

9 is that an accused is the subject, not the object of the proceedings. Not

10 only in terms of law but in terms of more general rules, the accused has

11 the right to take a more active part.

12 And if we speak of the Rules of Procedure in this Tribunal, those

13 rules do not discriminate between various participants who may conduct the

14 questioning. They use the word "defence" or "the accused." And when a

15 lawyer used the term "accused," that implies either the counsel or the

16 accused. We can't see a single phrase in the Rules that certain subjects

17 are reserved to the counsel and other subjects may be taken up by the

18 accused or their counsel.

19 The fact that the Prosecution finds this unusual, it's their

20 problem. The fact that they don't want to face the arguments of the

21 accused who have been there, who lived there, who walked there, who acted

22 there on the ground, it's the problem of the Prosecution. But that should

23 not affect the right of the accused to speak about that and to state their

24 position. That is or should be the rule in every reasonable court in

25 every reasonable country that has the minimal respect for human rights and

1 the rights of the accused.

2 JUDGE ANTONETTI: [Interpretation] Mr. Praljak.

3 THE ACCUSED PRALJAK: [Interpretation] We still have some time

4 left. The concern expressed by Mr. Scott over my examination is quite a

5 surprise. The 33 hours that I used up were not your time, Mr. Scott.

6 That's the time granted by this Tribunal to my Defence, and sometimes when

7 other Defence teams, when they deemed it necessary, gave up their the time

8 in my favour. Besides, in the indictment you have developed the concept

9 of joint criminal enterprise, which is mentioned over several sentences

10 and as a concept is quite unclear. It is vague.

11 Law is a normative science, and I believe that in the past 40

12 years that I've been dealing with ethics and morality, I also studied law.

13 Law is not the product of someone's will or mercy. Law regulates my

14 rights. I either have and enjoy a certain right or not.

15 If these rights are enshrined in law or in rules, then the Judges

16 are the ones who can grant me the enjoyment of the right or not. I merely

17 sought what I was entitled to under the Statute. Law -- or rather, rights

18 and obligations are given, and they cannot be just sought, and they are

19 based on law. It is not Mr. Scott who can decide about what the

20 relationship between Mr. Kovacic and me will be. I do not know where you

21 think this entitlement of yours comes from.

22 I complied with all the orders of the Judges, and I tried to

23 examine in a proper and fair way. My examination was always of a

24 technical nature in order to clarify some matters that I don't believe the

25 lawyers can know themselves, and I don't think even Mr. Scott can be aware

1 of errors in spheric geometry.

2 This is particularly important, because the Judges simply have to

3 go beyond what is the usually prescribed right of who can do what and to

4 what extent. In this courtroom, politics is mentioned; humanities are

5 mentioned; certain notions that cannot be defined are mentioned such as

6 fear, hate, rage.

7 All of these elements are part of this brutal and aggressive war

8 in Bosnia-Herzegovina, and nobody, I don't think even the Honourable

9 Judges, can view the deeds allegedly perpetrated by the accused here

10 without getting the whole picture. This involves also the sciences that

11 not even the Judges themselves studied as part of their education.

12 The extent of fear that was present in Vares after Kakanj is not

13 easy to establish. You have to establish whether the people left Vares

14 out of fear or because having spent five months in Vares they moved as

15 part of this joint criminal enterprise and whether this happened in the

16 month of October, five months after the aggression.

17 When I offered some documents to be admitted into evidence, when I

18 was examining a witness over the crime Muslims committed against Croats, I

19 said that this wasn't a quid pro quo -- or a tu quoque. This was merely

20 to show the legal and actual state of affairs, because where the legal

21 situation may be clear, the reality may not.

22 What is the reality and the developments worldwide if not quid pro

23 quo? Always a reaction to action. For this reason I sometimes produced

24 documents and presented views not because I wished to impose something,

25 but because at the end of the day Judges who are seized of this complex

1 case have to pronounce a judgement beyond any reasonable doubt.

2 The fact, Mr. Scott, that you wrote this indictment and the fact

3 that the indictment, unfortunately, is in the hands of this Tribunal,

4 which belongs neither to the Anglo -- American or European jurisdiction,

5 and the American jurisdiction, for instance, would go through the

6 indictment five times to see whether it actually holds water or not.

7 We will be spending here tens of millions of dollars, and I appeal

8 to the Judges to refer to this case as a complex one. Because if it is as

9 complex as the Nuremberg cases are, then it has to be understood that such

10 a case involves grievous crimes and great criminals and should be treated

11 as such. However, in my view, so far this case was not treated as a

12 complex case but as big business. So perhaps this is the way it should be

13 referred to.

14 Now, on the issue of the accused having the right to put

15 questions, I fully understand and would not even contemplate the idea of

16 discussing Mr. Karnavas's right to put questions or the right of the other

17 counsel to put questions. I am a layman in that respect.

18 I would appeal to Their Honours that they should put questions,

19 and on each occasion when I put questions to the witness that they put

20 questions to the witnesses that will lead to those facts that only the

21 Judges themselves will need. I also appeal to Mr. Karnavas who in his

22 repeated interventions assisted me and others while putting questions.

23 A question is a neutral matter. It cannot be in the favour of

24 either the Defence or the Prosecution. An answer to a question is

25 something that the Judges and the Defence need, and I suppose and I hope

1 you, too, Mr. Scott, need the answers. All of this in order to avoid

2 having a judgement where certain situations have not been clarified.

3 That is why I appeal to Their Honours, whenever you notice that a

4 question of mine should be rephrased in order to help us to arrive at the

5 truth to tell me so.

6 I want to say one other thing. We have many witnesses appearing

7 before this Tribunal, and we have many protected witnesses ten or 15 years

8 after the war, which is due to the wishes of these witnesses. However, in

9 the interests of the international community, and of these victims it,

10 too, these proceedings should be held in public session so that the

11 international community itself can also see which were the statements that

12 led to us being indicted here.

13 Of all these numerous witnesses, none of the witnesses were ever

14 proclaimed guilty for perjury. In the United States, I believe that a man

15 charged with perjury, if provable guilty, would face a very high sentence.

16 We can see in the Kupreskic case that the accused were acquitted,

17 and all those witnesses who testified against them were not indicted. By

18 appearing before this Tribunal, they placed an incredible burden on the

19 Judges who, with great responsibility, have to determine whether a given

20 witness is telling the truth or not, simply because the same witness knows

21 that he will not be held responsible for giving false statements.

22 I will use the remaining couple of minutes to make one more point

23 which has to do with numbers.

24 In Yugoslavia, after World War II, we had ten times more partisans

25 than had ever fought the war. We had 60 to 70.000 people who had been

1 killed by the Ustasha in the Jasenovac camp and elsewhere. This figure

2 grew to a million and a half 20 or 30 years later. The number bandied

3 about in Bosnia about the Muslims being killed has arrived at 250.000;

4 whereas, expert circles point to the number of 60.000. In that region, we

5 have an enormous exaggeration in terms of numbers because this is still

6 used for political purposes, for some unresolved issues, and political

7 relations.

8 I would kindly ask the Trial Chamber the following: To allow me

9 to exercise my right despite of what Mr. Scott is requesting to put

10 questions to witnesses based on the relevant questions that I have been

11 putting so far. And I also kindly request you to admit into evidence some

12 of the documents that I produced there, simply because it is necessary to

13 make comparisons, to look at these numbers, relative numbers, to arrive at

14 the general atmosphere prevailing in that area at the time, how

15 controllable the whole situation was before determining our

16 responsibility.

17 I said once when I was about to come before this Tribunal that I

18 was afraid that judgements would be passed simply because we had no rights

19 to show -- right to show what had actually been happening there, what

20 attributes we had, what powers we had to control what was going on the

21 ground. We had favours done like what Mr. Baker did to the Serbs in

22 Yugoslavia, like the arms embargo that was used to disrupt the whole

23 system, and that's all.

24 JUDGE ANTONETTI: [Interpretation] Thank you, Mr. Praljak. It's a

25 quarter to 2.00. We have to stop here. We'll continue listening to you

1 as soon as we can. Please rest assured that you will be heard, you and

2 the others, about the various topics that have been discussed so far.

3 Next week we have one witness for four days. The schedule has

4 been set.

5 Thank you very much, and we'll reconvene on Monday at quarter past

6 2.00.

7 --- Whereupon the hearing adjourned at 1.45 p.m.

8 To be reconvened on Monday, the 2nd day

9 of April, 2007, at 2.15 p.m.

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