Tribunal Criminal Tribunal for the Former Yugoslavia

Page 35928

1 Wednesday, 9 February 2005

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 9.03 a.m.

5 JUDGE ROBINSON: Yes, Mr. Nice.

6 THE INTERPRETER: Microphone, please.

7 MR. NICE: Following yesterday's discussion on procedure --

8 THE INTERPRETER: Microphone, please.

9 MR. NICE: I've asked for the witness to be kept out briefly

10 because following yesterday's discussion on procedure, we researched the

11 law to see if there was any guidance of assistance. There's quite a

12 number of first instance decisions which go several -- which go both ways.

13 There are arguably two decisions in the Appeals Chamber of assistance; one

14 the Appeals Chamber from the ICTR, one the Appeals Chamber from the ICTY,

15 and one decision at first instance that we would like to draw to your

16 attention. I'm happy to deal with it now or, depending on what plans the

17 Chamber had made for dealing with the documents we looked at yesterday, at

18 a later stage.

19 If we deal with it now, having printed copies or extracts from the

20 three judgements and there are only three short passages, one in each

21 judgement to be referred to, those copies aren't yet with us but we --

22 they are with us, and alternatively, we can deal with it rapidly by

23 putting it on the overhead projector. So I'm in Your Honours' hands.

24 [Trial Chamber confers]

25 JUDGE ROBINSON: How much longer will you be with this witness?

Page 35929

1 MR. NICE: Not very much. I would hope to finish in the first

2 session.

3 JUDGE ROBINSON: We'll hear the evidence. We'll hear the evidence

4 without making any decision on those evidential points.

5 Mr. Milosevic, yes.

6 THE ACCUSED: [Interpretation] I just wish to tell you the

7 following: Since in relation to the question that you're discussing right

8 now, Mr. Nice yesterday mentioned a few persons who played an active role

9 in this context, and he asked Mr. Balevic about them. One of these

10 persons, perhaps the most prominent one among them that Mr. Nice mentioned

11 yesterday is Kosta Bulatovic, and I wish to inform you that Kosta

12 Bulatovic is on the witness list. He is on the list of witnesses. So you

13 will have an opportunity of hearing his testimony. Therefore, I think

14 that this is pointless to ask someone about statements given to the press,

15 what the newspapers wrote about ages ago.

16 I'm not going to use the word "group." I'm not going to say

17 "among this group," but -- because I don't think there was a group, but

18 among these activists, he was perhaps the most prominent one.

19 JUDGE ROBINSON: I need not remind you, Mr. Milosevic, it's a

20 strategy that you yourself employed at times in cross-examination, but we

21 have to determine the issue. Let us hear the evidence.

22 MR. NICE: I'm grateful to hear Kosta Bulatovic is going to come.

23 It will probably help me tailor the questions I'm going to ask this

24 witness.

25 JUDGE ROBINSON: Have the witness brought in.

Page 35930

1 MR. NICE: While that's being done, as a matter of detail, we're

2 still awaiting a prospective forthcoming witness list. I hope it's going

3 to be with us shortly because planning is becoming a little tricky.

4 JUDGE ROBINSON: Mr. Milosevic, you will take note of that.

5 [The witness entered court]


7 [Witness answered through interpreter]

8 Cross-examined by Mr. Nice: [Continued]

9 Q. Mr. Balevic, some questions that may be answered and dealt with

10 very briefly, just yes or no: Following the demonstrations by students in

11 1981, were you aware of, did you ever read the petition that the students

12 submitted in respect of the punishments that had been meted out to them?

13 A. No.

14 Q. In January 1986, there was a petition signed by many Serbs

15 complaining of the position, and it's a petition that relates to the

16 activity of the group of people we've been discussing. Did you -- you

17 didn't sign the petition. Did you see the petition yourself ever?

18 A. No.

19 MR. NICE: Your Honour, those matters can be dealt with by the

20 other witness, and I shan't even attempt to deal with them through this

21 witness.

22 Q. You told us -- and I'm afraid because of a slight change of plan I

23 may not have organised Ms. Dicklich's assistance in the way that I

24 ordinarily would have done, but you told us yesterday that you attended

25 the one demonstration in Nis.

Page 35931

1 MR. NICE: Your Honours, just give me one minute.

2 Your Honours, can I save time? Lay on the overhead projector --

3 THE INTERPRETER: Microphone, please.

4 MR. NICE: Can I save time? Lay on the overhead projector a

5 printout from The Independent newspaper via a website from the 26th of

6 September, 1998. And it's in English. We see the first page showing the

7 date. If we could have the second page, please.

8 Q. The press reported, Mr. Balevic, on the rally in Nis as follows:

9 "Saturday's rally in the south Serbian city of Nis involved some 150.000

10 people, according to unbiased accounts, and was one of the largest

11 demonstrations seen in Yugoslavia. Those most outspokenly critical of the

12 rallies, like the leaders of the prosperous Western Republic of Slovenia

13 were, as is now routine, branded as supporters of the 'separatists and

14 counter-revolutionaries' allegedly holding sway in Kosovo. 'For a

15 tomorrow without those who destroyed yesterday,' said one banner."

16 Now, was the demonstration in which you participated in Nis as

17 large as 150.000 people?

18 A. Mr. Nice, I was in Nis at the rally where President Slobodan

19 Milosevic spoke. As for what you've been saying, I don't know anything

20 about that. These were not demonstrations. This was a rally, as far as

21 I'm concerned. Demonstrations are when people walk down a street, get

22 engaged in destruction, and so on.

23 Mr. Milosevic spoke there and there was no incident whatsoever.

24 What you say about Slovenia and the Slovenian leaders, for Slovenia,

25 Kosovo and Metohija was a marginal matter. It was completely on the

Page 35932

1 sidelines. They were not interested in it at all, the situation there and

2 the drama of the Serbs and Montenegrins in Kosovo. As a matter of fact,

3 they supported Albanian separatism.

4 JUDGE BONOMY: Mr. Nice, let me make an observation at this stage

5 because it may be of relevance to the later debate, and I don't want to

6 lose sight of it.

7 You had a very simple question there about how many people were at

8 the rally. That question, in my opinion, did not require this document to

9 be read, and by reading the document you rather inflamed the witness to

10 respond to all the various things in there about which inevitably he

11 doesn't agree, and I don't think that that is a very productive way of

12 cross-examining a witness like this. And it does raise questions, I

13 think, over the value of using this kind of documentation in the course of

14 cross-examination.

15 MR. NICE: Your Honour --

16 JUDGE BONOMY: It's a comment for the moment so that we don't

17 waste -- and please ignore it and continue to examine as you consider

18 appropriate, but it's so that you have it in mind when we come to the

19 debate.

20 MR. NICE: Your Honour, yes, and of course I put the document in

21 because it deals with other matters, and one of them I do wish to ask the

22 witness about. As to the 150.000 people, I haven't had an answer.

23 Q. But help us, please, with this, Mr. Balevic: Was Mr. Solevic with

24 you at the time of this rally?

25 A. At that rally, when I came there, I didn't see Mr. Solevic. There

Page 35933

1 was a rally before that in Nis, though. I was at the rally where Slobodan

2 Milosevic spoke, and I cannot say that there were 150.000 people there.

3 It was held in front of the theatre, and I don't think that that area can

4 really receive 150.000 people. So I cannot claim that. As for Solevic, I

5 did not see him at the rally.

6 Q. Were you at about this time in contact with Solevic?

7 A. No.

8 MR. NICE: Your Honours, we may come back to this topic with the

9 other witness who is going to be able to deal with it. The particular

10 passage I was interested in but in light of His Honour Judge Bonomy's

11 observation won't pursue is at the foot of this page. I don't think you

12 can actually see it on the overhead projector, we'll come back to it

13 later, but there was an integrated purpose in looking at this document as

14 normally when I'm looking at documents of this kind.

15 Can we move on, then, please, and I forecast that this will be on

16 the same basis as -- if at all, as production of the documents yesterday,

17 to look at --

18 THE ACCUSED: [Interpretation] Mr. Robinson.

19 JUDGE ROBINSON: Yes, Mr. Milosevic.

20 THE ACCUSED: [Interpretation] Can I get a copy of this Independent

21 article that Mr. Nice quoted from a few moments ago.


23 MR. NICE: Certainly. And indeed the last paragraph on the page

24 to which I was going to refer is something that might qualify on one

25 reckoning as Rule 68 material, which is one of the reasons I was going to

Page 35934

1 draw it to the attention of the Court. So it's available for the accused

2 to raise in re-examination. If he chooses to.

3 Q. Can we now, please, on the same basis I would forecast, if at all,

4 look at some extracts from The Death of Yugoslavia film which are stripped

5 of all commentary and cover the build-up to and the events at the meeting

6 on April 1987.

7 JUDGE ROBINSON: What are you hoping to extract from the witness?

8 MR. NICE: I'm hoping to extract from the witness that he agrees

9 with many of the things that are said.

10 JUDGE ROBINSON: Very well.

11 MR. NICE: If we have the extracts. And the blank pages that Your

12 Honours will see reflect editorial commentary that has now been excised so

13 that all that you're left with is the words of the individual participants

14 speaking to the commentator, I think, if anything else.

15 The way it's being presented by Ms. Dicklich makes it possible for

16 us to pause within the clip, as we will describe it.

17 Q. And before we start, you told us, Mr. Balevic, of the visit that

18 was planned -- sorry, the visit that was made by President Stambolic the

19 year before, in 1986, a visit that was not regarded as successful by the

20 Kosovo Serbs; is that correct?

21 A. Correct. As a form of protest, they left when he was making this

22 speech in front of the Braca Krajinovic hall, because before that, a

23 meeting was held inside where he spoke. But they were dissatisfied with

24 his speech - there were a few thousand citizens in front of the building -

25 so they left in protest because they expected Ivan Stambolic to say there

Page 35935

1 which measures he's going to take as president within the scope of his

2 authority in the Republic of Serbia and in Yugoslavia in order to stop the

3 moving out of Serbs and Montenegrins and to ensure their safety and

4 security.

5 Q. Thank you. If Ms. Dicklich could start the tape, please.

6 [Videotape played]


8 Q. As a matter of detail, I think we see you standing beside the

9 accused on the right; is that correct?

10 A. I can't see it.

11 MR. NICE: Pause there, please.

12 Q. This is the man Solevic; correct?

13 A. Could you please show me where I am? You said that I was standing

14 next to Slobodan Milosevic. I would only be too pleased to be standing

15 next to him. But where am I?

16 JUDGE KWON: Mr. Nice, the Sanction and the monitor of the video

17 shows different things. Yes. Now it's okay.

18 MR. NICE: Perhaps we'd better go back to the beginning, Your

19 Honour. Ms. Dicklich will play her clip and I hope we're all seeing it.

20 I will forget the point about standing next door and we'll just get on --

21 oh, here we are.

22 [Videotape played]

23 MR. NICE:

24 Q. Just pausing there, is that you standing beside Mr. Milosevic or

25 not?

Page 35936












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13 English transcripts.













Page 35937

1 A. Yes, it's me.

2 Q. All right. Let's move to the next section.

3 A. It was on the 20th of April, 1987.

4 Q. This is the man Solevic?

5 A. This is Solevic.

6 Q. All right.

7 MR. NICE: Play it, please. I must check that the -- pause there.

8 Q. Is Mr. Solevic correct in saying that the accused had no initial

9 intention of meeting the Serbs, on your understanding?

10 A. That statement of his is not correct. If it pertains to

11 Mr. Milosevic, that is. Or do you mean Ivan Stambolic? Could you please

12 tell me very specifically?

13 Q. [Previous translation continues] ... the accused. So you say that

14 from the very first day he was willing to come and speak to you? He

15 didn't have to be compelled?

16 A. I can say the following: From the 16th of April, when I informed

17 him and I invited him to come to a meeting, that is what I can talk about.

18 I don't know what his feelings were before that. I do not recall any of

19 that. I first spoke to him on the 16th of April, so --

20 Q. Thank you. Move on.

21 [Videotape played]

22 MR. NICE: Pausing there.

23 Q. Is what we've been looking at the accused speaking on the first

24 visit on the 20th of April?

25 A. The image is blurred, so I cannot even confirm where it is that

Page 35938

1 he's speaking. You can see the school here. The school is opposite --

2 or, rather, he was speaking from a place that was opposite the school. So

3 I cannot confirm the venue.

4 I have to add one more thing, though. The rally in Nis, I think,

5 was dedicated to a particular anniversary, so it was not a rally like the

6 ones that were held before that, as far as I can remember, and I think

7 that my memory serves me well. I cannot confirm where this is.

8 Q. Very well.

9 A. I can't really tell from this picture because I can't see the

10 school.

11 Q. Move on.

12 JUDGE KWON: Mr. Nice, we don't have voice here, do we?

13 MR. NICE: No. He has the voice. I hope he has the voice.

14 JUDGE KWON: Mr. Balevic, were you able to hear the sound in this

15 clip?

16 THE WITNESS: [Interpretation] No.


18 MR. NICE: We understood that the sound was going to the witness.

19 I don't know --

20 THE WITNESS: [Interpretation] I can hear you, but I can't hear

21 this. I can just see the images.

22 [Videotape played]

23 MR. NICE: That's better. Pause there.

24 Q. I hope, Mr. Balevic, you heard that. Is it right, as Solevic

25 says, that the accused was invited to return on the basis --

Page 35939

1 A. I don't know about this.

2 Q. Very well.

3 A. I don't know about this. I don't remember this, this contact

4 between Solevic and Milosevic. I cannot remember that.

5 [Videotape played]


7 Q. Is it right that at certainly the first meeting and even at the

8 second the accused stuck to the traditional brotherhood and unity line?

9 A. It was not the usual line. It was his policy, his official policy

10 in favour of brotherhood and unity of the peoples in Kosovo. It was not

11 the usual line, though.

12 [Videotape played]

13 MR. NICE: Thank you. Pause there. The next bit couldn't be cut,

14 Your Honours, without cutting out Borisav Jovic's comment. We will pass

15 through it quickly when we reactivate the tape.

16 Q. But tell me this, please, Mr. Balevic: We hear there Mr. Jovic

17 saying that the first person to stand up and to say we must stop the

18 oppression of the Serbs had the way to the top. Was that your

19 understanding, that the accused, by supporting those who were complaining

20 of oppression of the Serbs, made for himself a way to the top?

21 A. No. No. He confirmed this course because he placed himself at

22 the helm of the massive request from Serbs in Kosovo and Metohija for

23 their very survival. It wasn't any kind of leadership. It's not that

24 Milosevic called us. We called him to come to Kosovo.

25 Q. Very well. We'll advance through the somewhat realistic beheading

Page 35940

1 and get to the next passage.

2 [Videotape played]

3 MR. NICE: Pause.

4 Q. This is Dusan Mitrovic, now dead. He died shortly after of, I

5 think, cancer. And he was the deputy head of Belgrade television;

6 correct?

7 A. I'm not aware of that. I never had any contact with him. I don't

8 know. I know he was on television, but otherwise I had no contacts with

9 him at all, nothing to do with him.

10 [Videotape played]

11 MR. NICE:

12 Q. This is Azem Vllasi, communist leader at the time until he was

13 removed from office and imprisoned, correct?

14 A. Yes. He was the president of the provincial committee. He was a

15 Tito youngster. And unfortunately, later on he toppled the state that

16 Tito had created. And he was a Tito person in his youth.

17 Q. Now, do you remember yesterday that I asked you whether between

18 the first and second meeting there was any contacts between the accused

19 and those of you down in Kosovo? And I'd like you to listen to the

20 following with that in mind.

21 [Videotape played]

22 MR. NICE: Pause there, please.

23 Q. Seeing those two passages, is there any reason to doubt that the

24 accused may have sent someone down between the first and second meetings

25 to arrange what was to happen?

Page 35941

1 A. I'm not aware of him having sent anybody there between the first

2 and second meeting. I had nothing to do with him, no contacts with him

3 between the first and second meeting at all.

4 Q. You -- you were a --

5 A. Please. But the first meeting was a rally. The second was a

6 meeting held in a closed room. So there are not two rallies, just one

7 meeting, one of which was held behind closed doors.

8 Q. Now, you've made a point of the fact that you're not one of the

9 group itself, even if you once went with some members of the group to see

10 Dizdarevic. Do you exclude the possibility or do you allow for the

11 possibility that the accused may indeed have sent somebody down to deal

12 with people such as Solevic?

13 A. As far as I remember, nobody from that group with us went to see

14 Dizdarevic, but I allow for the fact that you might wish to check it out.

15 As far as I remember and as far as my memory serves me, that's how it was,

16 because yesterday I used this as a reminder, as an aide-memoire, and I was

17 cautioned by Mr. Robinson that I was reading. I wasn't actually reading,

18 I just used it to refresh my memory. But as I say, I myself don't

19 remember that anybody from the group was there with us when we went to see

20 Dizdarevic, and I have been repeating this several times, that is that I

21 did not belong to that group myself.

22 Q. I'll deal with that in a second.

23 [Videotape played]

24 THE ACCUSED: [Interpretation] Mr. Robinson.

25 JUDGE ROBINSON: Mr. Milosevic.

Page 35942

1 THE ACCUSED: [Interpretation] I should just like to draw your

2 attention to this: I am listening to what these various individuals here

3 are saying and I can see the translation at the bottom, and let me tell

4 you that the translation is not very correct. Vllasi, speaking in

5 Albanian, says that Milosevic sent the executive secretary. I can hear

6 him saying this in Albanian, "ekzekutiv sekretar," "executive secretary."

7 And I assume that "ekzekutiv" means "executive" in Albanian too. And then

8 the translation said, or the caption said, "He sent a private secretary."

9 I didn't have a private secretary. I had a lady secretary. Now, what

10 Vllasi says should at least be translated from the Albanian to English

11 correctly, just as one should translate correctly what is said in Serbian

12 by others in the captions.

13 JUDGE ROBINSON: Mr. Nice, is this intended to be a faithful

14 translation or paraphrase?

15 MR. NICE: It's the translation that's provided by the company

16 that made the tapes. May I propose that we run the tape, not now but

17 afterwards, through another -- with other translators and it can be given

18 an authoritative translation in that way.

19 [Trial Chamber confers]

20 JUDGE ROBINSON: We take account of the point made by

21 Mr. Milosevic, but you can go on.

22 MR. NICE: Thank you very much.

23 [Videotape played]

24 THE ACCUSED: [Interpretation] Example, Mr. Robinson. For example,

25 there we have an example. Solevic here is explaining that they had

Page 35943

1 brought in some material to expand the pavement, and I just heard him say

2 and Mr. Balevic heard him say that and anybody else who was listening. He

3 said that was brought in to expand and broaden the pavement. It wasn't

4 intended for the police. That's what he is explaining, but you can't see

5 that in the translation. In the translation, there's just an abridged

6 version, a hodgepodge of what was said, if I can put it that way.

7 JUDGE ROBINSON: Mr. Nice, we may be obliged to consider adopting

8 the course that you suggested.

9 MR. NICE: I'm grateful.

10 [Trial Chamber confers]

11 JUDGE ROBINSON: Mr. Nice, as this point may be important, could

12 we have it played -- run it again and let us have the interpreters

13 translate it.

14 MR. NICE: Certainly.

15 [Videotape played]

16 THE INTERPRETER: The interpreter here in the Albanian booth

17 cannot hear the Albanian. When he tries to speak into English, it gets

18 cut off.

19 THE INTERPRETER: [Voiceover] "[Previous translation continues]...

20 have time. It's Friday, Monday. We have Tuesday, Wednesday, Thursday to

21 get ready. Just three days. Each of us going in our own way to meet

22 people, to have a look -- to talk to them, to organise ourselves. We said

23 all these lads who can fight properly should take everything they need.

24 "MR. SOLEVIC: We unloaded two tractor trailers to broaden the

25 pavement, yes, broaden the pavement. It wasn't for the police. It was

Page 35944

1 just there in case.

2 "SPEAKER: I want to live here where my mother lived. I want to

3 be buried here in this soil where --"

4 THE INTERPRETER: The interpreters apologise but the speed of the

5 tape is too fast for interpretation.


7 Q. Just go back to the first passage. You saw what --

8 JUDGE KWON: Microphone.


10 Q. You heard what Solevic said about parking lorries for broadening

11 the pavement but just in case. Was it, as I suggested to you, the case

12 that there were preparations made to generate a conflict to which the

13 accused could respond?

14 A. That's not true. And I'm hearing about these lorries or trailers

15 for the first time, and those bricks, and it's just not true. And

16 secondly, I was in the hall, so I wasn't able to see what was going on

17 outside, whether there are any stones or not, but this observation is

18 incorrect, and this is the first time that I'm hearing it --

19 Q. Very well. Let's move on.

20 A. -- that any kind of preparations were being carried out.

21 Q. Without translation for this passage. We've had this before in

22 the accused's evidence, I think.

23 [Videotape played]

24 MR. NICE: If the interpreters could interpret this.

25 THE INTERPRETER: [Voiceover] "We don't know what was going on.

Page 35945












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13 English transcripts.













Page 35946

1 Our people started fleeing, and this encouraged the police and they

2 started running after us until we got to the -- they got to the stones and

3 then we turned round. So everybody got a gift like that on their -- on

4 the helmet. And then we went up to Milosevic again and said the police

5 outside are beating our people and then he couldn't pass this hot potato

6 to anybody else. He had to go out himself, and he was probably rather

7 afraid and nervous because he knew what was going on and what this meant."

8 THE ACCUSED: [Interpretation] For example, Mr. Robinson, another

9 example. You can hear here that they're saying to me, "They're beating

10 us." And then you can hear my voice saying, "Nobody must be allowed to

11 beat you," whereas the translation at the bottom of the caption says,

12 "Nobody must beat you again." The word "again" doesn't exist anywhere.

13 They say, "They're beating us," and I say, "Nobody must be allowed to beat

14 you." That's all, and that's quite logical. It goes -- it follows on one

15 from the other. Now, who added the word "again," you will have to ask

16 your employees about that or, rather, Mr. Nice over there.

17 JUDGE ROBINSON: That's a good example.

18 MR. NICE: The matter we discussed yesterday. I'm grateful for

19 the observation and it doesn't come, I think, entirely as a surprise. Can

20 we move on, just get to the end of the clip, and then I'll ask my

21 question.

22 [Videotape played]

23 JUDGE ROBINSON: Just a minute.

24 [Trial Chamber confers]

25 MR. NICE: Was that bit translated?

Page 35947

1 THE INTERPRETER: The interpreters apologise but they cannot

2 translate from the tape. It's much too fast and indistinct except for

3 bits and pieces.

4 JUDGE ROBINSON: May I ask the interpreters, did they not hear the

5 "You will not be beaten?"

6 THE INTERPRETER: We heard the "You will not be beaten," yes, but

7 I can't guarantee for any other sections.

8 JUDGE ROBINSON: And was there any "again" in that sentence? I'm

9 asking the interpreters.

10 THE INTERPRETER: No, there wasn't.

11 MR. NICE: Just on to the end, please --

12 JUDGE ROBINSON: Just a second.

13 [Trial Chamber confers]

14 JUDGE ROBINSON: Mr. Nice, I'm going to ask the interpreters,

15 would you have the video played again from the point where Mr. Milosevic

16 came out, and I'd like them to attend as closely as possible to the --

17 that part of his speech concerning beating, I think on two occasions. If

18 we could have as close a translation as possible.

19 [Videotape played]

20 THE INTERPRETER: As far as the interpreter heard, there was no

21 "again" on both occasions.

22 JUDGE ROBINSON: Thank you. Yes.

23 MR. NICE: We can press on.

24 [Videotape played]

25 MR. NICE:

Page 35948

1 Q. Mr. Balevic, having looked at --

2 JUDGE KWON: Microphone.

3 MR. NICE: Thank you.

4 Q. Mr. Balevic, having looked at those observations by the people who

5 we know, I come again to the question: Was there not at this meeting an

6 element of planning in order to give the accused an opportunity to lead

7 the Serbs who were making complaint at the meeting you'd organised?

8 A. I say with full responsibility that it is the first time that I'm

9 hearing Solevic here and now talking about some construction work and

10 preparations for construction work and bringing in material to place an

11 asphalt layer on a road. So this construction material and bricks I can

12 say with full responsibility I never saw, and I heard it for the first

13 time here. No preparations were conducted -- and I have to state once

14 again, Mr. Milosevic, when he came out on two occasions, because I was

15 standing next to him, and as far as I heard him, the first time he said,

16 "Nobody must be allowed to beat you." And the second time, "Nobody must

17 beat." And then Miodrag Trifovic, who is the son, the grey-haired man, he

18 is the uncle of Dragan Trifovic who was killed in the Panda cafe, and he

19 was beaten.

20 Q. Finally --

21 JUDGE ROBINSON: Mr. Nice, can I understand clearly what you're

22 putting to the witness. You're saying that this was planned cynically.

23 MR. NICE: Certainly.

24 JUDGE ROBINSON: Cynically. So the accused could emerge as a

25 leader. And in this melee people would be injured. Are you saying that

Page 35949

1 all that was planned? Is that your case?

2 MR. NICE: Your Honour, at the moment and until if he comes as a

3 witness, he comes as a witness, or if they come as witnesses in due

4 course, I'm dependent on material both from the words of Solevic, which

5 are amplified in considerable detail in what he says in other parts of the

6 complete interview, which can be made available, and I'm dependent on the

7 words of Vllasi, also contained in the full interview and in other texts,

8 which would suggest that there was certainly an element of planning

9 between the two meetings and quite possibly an element of planning before

10 the first meeting.

11 JUDGE ROBINSON: No, no, not just planning. Your case is not just

12 that there was planning for the meeting but planning in such a way that

13 there would be a disturbance in which people might be injured and out of

14 which --

15 MR. NICE: Certainly.

16 JUDGE ROBINSON: -- the accused would emerge as a leader.

17 MR. NICE: That is the clear effect of what Solevic is saying, and

18 that is a possibility that indeed we are countenancing, yes.

19 THE ACCUSED: [Interpretation] Mr. Robinson.


21 THE ACCUSED: [Interpretation] Solevic doesn't say that at all.

22 What Mr. Nice is claiming, Solevic did not say at all. He just thought it

23 up, just as he thought up the planning of a joint enterprise. That's his

24 speciality. And it's a great shame here that he is operating with things

25 like that.

Page 35950

1 JUDGE ROBINSON: Mr. Milosevic, you'll have a time to make

2 comments when you --


4 Q. Just to make my position absolutely clear through a question I've

5 asked before of the witness but I'll now ask again, in light of His Honour

6 Judge Robinson's concern and arising from things that Solevic has said

7 specifically, do you have any knowledge, Mr. Balevic, of strong young Serb

8 men armed with pistols being arranged to be present in the crowd on that

9 occasion to turn to violence if necessary?

10 A. I have no knowledge of that kind at all. I claim that that is

11 incorrect, that it was all construed and staged in order to proclaim the

12 meeting, the rally, or, rather, to create incidents breaking out and to

13 lead to chaos. So that observation in your question to me is incorrect,

14 and you're basing it on Solevic and Vllasi whereas I'm basing my testimony

15 on the facts that I saw and were able to follow, and I'm not basing it on

16 Solevic and Vllasi.

17 Q. Unless Solevic ever attends as a witness here, can you think of

18 any reason why Solevic, from whom you parted company later in 1998, or

19 separated generally, can you think of any reason why he should make such

20 things up, so we can know it now?

21 A. I don't know what year we parted ways ideologically. We didn't

22 see eye-to-eye. But I think it would be a good idea if you were to ask

23 him to come here and then he would be able to tell you about those ideas

24 and the statements, because I don't know what his ideas were and what his

25 statements meant. I cannot interpret them.

Page 35951

1 The best thing would be for him to tell you here from this seat.

2 JUDGE KWON: Mr. Nice, can you tell us why Mr. Solevic was not in

3 the witness list in Kosovo case?

4 MR. NICE: There were a number of people who might have been on

5 the witness list but of course we didn't call for all sorts of reasons. I

6 don't know that Solevic was even available to us at that time or whether

7 he will be available to us now. I can make efforts now. But at that --

8 JUDGE KWON: But you were aware of this film at that time.

9 MR. NICE: Yes, we were certainly aware of the film at that time,

10 but our efforts at that time, I think, were concentrated on other

11 witnesses like, for example, Vllasi, and we didn't go to this witness at

12 that time, no. But those are the choices that one makes, and sometimes

13 witnesses become more obviously relevant and valuable at a later stage,

14 and it's the broadening of the -- it's the broadening of the case by the

15 accused in relation to this meeting that makes this particularly relevant.

16 JUDGE ROBINSON: This concept of an accused broadening his case is

17 new to me. The accused has a right to --

18 MR. NICE: Of course.

19 JUDGE ROBINSON: -- to put his Defence.

20 MR. NICE: I have no objection to it at all, as I've made

21 absolutely clear. I don't object to it.

22 JUDGE ROBINSON: It's a definitional contradiction [Realtime

23 transcript read in error "definition contradiction"].

24 MR. NICE: Absolutely.

25 JUDGE ROBINSON: The accused can't broaden his case, he puts his

Page 35952

1 case.

2 MR. NICE: He puts his case and he puts it in a particular way, it

3 may have the effect of broadening the matters into which we have to look

4 in detail. We presented evidence about this meeting in a fairly narrow

5 way. It's now wider, and that's why we're looking into it.

6 Your Honours, with your leave, may I move on to something that the

7 witness will want we to deal with. I was going to overlook it, although

8 I've referred to it, but in light of his question --

9 JUDGE ROBINSON: I just saw something here. I said it's a

10 definitional contradiction.

11 MR. NICE: And since what I want to put to the witness is arguably

12 favourable to the witness as well, and since he's raised it, I'd better

13 put it although it was going to be something I was going to cut to save

14 time. Can he have, please, an extract from Raif Dizdarevic's book which

15 deals with the meeting, he having questioned the composition of the group

16 that went to see Dizdarevic, who is, I think, still alive but elderly.

17 Q. Mr. Balevic, this is the passage I referred to right at the

18 beginning of my cross-examination of you where you're described as

19 moderate or moderate in comparison. You've asked me about the composition

20 of the meeting as reflected in the book and that's why I'm taking the time

21 to deal with it. You'll see on the first page -- if Mr. Prendergast could

22 put it on, the first page, on the overhead projector.

23 "Late at night on the 24th of February, Petar Gracanin called me

24 on the telephone. He said that a delegation of Serbs and Montenegrins

25 from Kosovo were in Belgrade. They had come in a serious and

Page 35953

1 representative composition and asked to talk to me and at the General

2 Staff. I said that those in Serbia talk to them and see what this was all

3 about, and only after that information, I would give my answer. After

4 awhile, he called me again and asked me to see the delegation. The

5 situation in Kosovo, he said, was dramatic and they were all asking to

6 talk to me. Also he himself asked me that and the leadership of Serbia as

7 well. After that I saw the delegation at around midnight and spoke with

8 them for more than two hours in the presence of Gracanin. It was led by

9 Balevic, a party official from Kosovo Polje, who at the time was known as

10 a moderate liner in comparison with Solevic, Kecman and other extremists

11 from Kosovo.

12 "To my question, 'Why are there no Albanians among you?' Balevic

13 answered that 'At this time it is hard to be together.'

14 "They told me the reasons for their arrival."

15 So you see, the way that Dizdarevic sets out the meeting,

16 Mr. Balevic, he doesn't identify beyond giving your name, I think, the

17 composition of the group. Do you see?

18 A. Mr. Nice, you have complicated things here. It's true that I was

19 a moderate. It is true that we asked to familiarise him with the

20 situation in Kosovo and Metohija. When he says more moderate than Solevic

21 and others, he doesn't claim that Solevic was at that meeting. Please

22 read the whole list and tell me, where does it say that Solevic went to

23 see Dizdarevic. As far as I know, he didn't. But he had some background

24 information, and on the basis of that he decided that I was more moderate

25 than Solevic. However, as to the composition of the group, you can read

Page 35954












12 Blank page inserted to ensure pagination corresponds between the French and

13 English transcripts.













Page 35955

1 the list and find out who was there and who wasn't.

2 Q. The point is the list isn't there, which is why I'm drawing it to

3 your attention.

4 Having seen that passage of what he says, and we can see the rest

5 of the summary of the meeting --

6 A. You will find it in Dizdarevic's protocol service.

7 MR. NICE: Your Honours, I'm -- for want of time I'm happy for the

8 document to be exhibited. I'm happy for it to fulfil any other function,

9 but --

10 JUDGE BONOMY: Is the question simply whether the witness was

11 there?

12 MR. NICE: It's a question whether he was there, whether he's in a

13 position now that he's seen, because he asked us to say how it was

14 recorded, whether he's in a position now to help us further with the

15 composition of that meeting, because the group of people to whom I've been

16 referring is Solevic and others.

17 Q. And Mr. Balevic, can you help us further? Look at the detail or

18 the record of the meeting if it's going to prompt your memory. Can you

19 help us further with whom you went to as the head of this delegation?

20 A. I can't tell you all the people who was there. There was myself,

21 Djuro Bauk, Ljubo Vujevic. I don't know else was there. It was a long

22 time ago.

23 We acquainted Dizdarevic first with a message sent to him by

24 Gracanin about the dramatic situation in Kosovo and Metohija, and it was

25 really dramatic because 10.000 people were waiting outside in the street

Page 35956

1 for us to come back and report to them. And I underline one of those who

2 spoke, Ljubo Vujovic, asked Dizdarevic how long would it take the army to

3 get out of the barracks and intervene, and he replied, "I believe three or

4 four hours." And our response was, "If it's anything more than 15

5 minutes, it will be too late."

6 MR. NICE: Your Honour, the other reason I wanted the witness to

7 have on balance an opportunity to look at this is because I said at the

8 beginning that he'd once been described as more moderate and in the

9 circumstances of the challenges I'm making to him it seemed fair that he

10 should see where I derived that from.

11 Can we move on, and Your Honours, can I explain what I'm going to

12 do. The witness has given some observations about matters of demography.

13 I understand from the accused's proposed witness list that he's going to

14 call a demographer himself, and there's still the outstanding issue of the

15 demographic evidence that was cut off at the time of the conclusion of the

16 Prosecution's case, so I shall deal with matters of demography through

17 experts rather than with this witness.

18 Q. However, there's one matter of detail that you can assist us with,

19 please, Mr. Balevic. You've spoken of a place called Klina, which is hard

20 for us to find. Does it have an another name, Glina? Is it the same as

21 the place Glina?

22 A. Yes.

23 Q. All right, that's all I need.

24 A. No, it's not the same thing. Glina is somewhere in Bosnia and

25 Croatia or wherever it is. Klina is in Kosovo and Metohija, near Pec.

Page 35957

1 Q. Near Pec. We'll see if we can find it on the map.

2 A. Close to Pec, about 20 -- Pec is to the north -- sorry, to the

3 west of Klina, towards Montenegro, and Klina is about 25, 26 kilometres

4 from Pec to the east.

5 Q. I'm going to move on, please, to the speech at Gazimestan. You

6 have been emphatic there was nothing nationalistic about what was

7 happening at Gazimestan. Would that be correct?

8 A. From what I could see and observe, it is true. There was nothing

9 nationalistic.

10 Q. There are a million Serbs in an area where Kosovo Albanians were

11 clearly in a majority celebrating a Serb war. Do you think there's any

12 risk of anxiety falling on the Kosovo Albanians in having a meeting of

13 that scale in their -- in territory that they dominated?

14 A. I don't believe it imposed a risk. It was a celebration of the

15 600th anniversary of the Kosovo battle, and the estimates of the press as

16 to the number of people attending ran between 500.000 and a million.

17 Those are not my estimates, and I don't think it could have been a risk.

18 It would have been more of a risk to organise destructive demonstrations

19 running through the streets.

20 Q. Very well.

21 A. This was an event that was not designed to pose a threat.

22 Q. You told us of your handling the arrangements for such important

23 guests as Ante Markovic and Drnovsek, whom I think you escorted in;

24 correct?

25 A. That is absolutely untrue what you're just saying, Mr. Nice. I

Page 35958

1 never said I met Drnovsek or Markovic, unless it's blatant provocation,

2 unless you're trying to provoke me. I was playing a host to those people

3 coming by train, various people who came to take part in the event from

4 various parts of the country, from Croatia, Serbia, Bosnia.

5 Q. [Previous translation continues] ...

6 A. Please don't put words in my mouth, and I don't care for your

7 apology.

8 Q. Very well. But those men did come. You certainly told us about

9 that.

10 A. Yes, but I did not welcome them. They were there, sitting in the

11 first row, and I was behind them in the fourth row.

12 Q. Now, let's look, please, with the assistance of the audiovisual

13 booth at how this meeting ended. And perhaps you would be good enough,

14 Mr. Balevic, to listen carefully to what we can hear.

15 [Videotape played]

16 MR. NICE: Okay. Thank you very much.

17 Q. The words of the song that were sung in unison, "Ko To Kaze, Ko To

18 Laze Srbija Je Mala," and so on, is as nationalistic a Serbian song as you

19 can have, isn't it?

20 A. Thank you very much for this question. I was expecting it. First

21 of all, Mr. Nice, it's not a nationalist song. It is a song that has been

22 sung for a hundred years, back to the Balkan wars. It is sung at

23 weddings, in taverns, at celebrations. It is an integral part of our

24 folklore and this can be confirmed by ethnologists who are experts. That

25 song was not sung only there, it has been sung every where, from the

Page 35959

1 Balkan wars onwards. When you find two or three people gathering, making

2 merry in a tavern, they will sing that song. It's not true that it's a

3 nationalist song. If you allow me to tell you, although my knowledge of

4 the Albanian language is poor by now, however, when I was young, I learnt

5 it in school with my Albanian friends. If I -- if you allowed me to show

6 you an example of an Albanian song, then you would see what nationalist

7 means.

8 Q. [Previous translation continues] ...

9 A. And the question is who sang that song.

10 Q. You've given a long answer. Now let's look at the words: "Who is

11 saying, who is lying, that Serbia is small. It's not small, it's been to

12 war three times, and it will be again if God grants us luck."

13 Mr. Balevic, how do you think those words would have sounded in

14 the ears of non-Serbs present at that meeting or non-Serbs from elsewhere

15 in Yugoslavia hearing a million people singing it at that meeting?

16 A. First of all, it was not sung by a million people. It was sung by

17 a part of those gathered but not a million. That's one thing.

18 And second, regardless of all the slogans, that song is not

19 nationalist by nature. I don't know how many times Serbia has been to

20 war. Only one of those wars was silly, when King Milan attacked Bulgaria

21 because of some silly ambitions. All the other wars, however, were

22 national liberation wars. And that song does not mean that Serbia would

23 go to war against Albanians. It's a hundred-year-old song, and if a

24 hundred years ago it was -- it had the meaning you seem to impute to it,

25 then all right. But what I'm saying is that it's part of our folklore,

Page 35960

1 and it has been sung on various occasions over the past 100 years. You

2 have, however, your own historians. You can check that.

3 Q. You have shown some passing knowledge of the trials before this

4 Tribunal, or certainly of this trial. Have you followed trials where

5 Serbs are alleged to have -- the camp cases, for example, where Serbs are

6 alleged to have done bad things to Croats and to Muslims, including making

7 them sing nationalistic Serb songs? Have you?

8 A. No.

9 Q. Very well. After that song was sung, and indeed after the speech

10 of the accused, you've told us about the arrival of Ante Markovic and Mr.

11 Drnovsek. Did they in fact leave immediately?

12 A. I don't know about that because I was not their escort.

13 THE ACCUSED: [Interpretation] Mr. Robinson. It is really

14 inappropriate to manipulate with facts in this way. After this speech

15 that Mr. Nice has just shown - in fact I showed the tape first - there

16 followed a celebration, a cultural event, and there was even a piece of

17 music composed specially for the occasion, and that was the 600th

18 anniversary of the battle.

19 MR. NICE: Your Honour, --

20 JUDGE ROBINSON: Mr. Milosevic, that's a matter you can take up in

21 re-examination, as you well know.

22 MR. NICE: To move on and to explain how I'm going to save time,

23 nevertheless trying to assist the Chamber with what matters are and are

24 not in issue, the witness gave wide-ranging and, I assume from the way he

25 described them, hearsay accounts of crimes committed by KLA. He referred

Page 35961

1 to, I think, two or three places in particular; Lake Radonjic, Klecka, and

2 one or two other places. These matters are already covered in evidence,

3 for example, in Exhibit 191. I'm not going to challenge him as to detail,

4 and indeed I think as to the generality without necessarily the

5 atmosphere. His account of crimes by KLA is not challenged as to the

6 generality but not necessarily as to the detail, we don't have time to go

7 into that, but it probably helps for the Judges to -- for the Court to

8 know why I'm not dealing with something even if I don't necessarily accept

9 it as relevant.

10 Q. In order to try and fulfil my hope and semi-promise of finishing

11 this morning in the first session, you told us in relation to the build-up

12 to the events of 1999, that you were at a meeting with the man Sainovic.

13 Was it just the one meeting?

14 A. No. It's Sainovic who had a meeting with us at the provincial

15 committee, and I personally never had a one-to-one meeting with Sainovic.

16 Q. I accept that. At the time -- at the time that you had your

17 meeting with Sainovic, did he -- what position did he fulfill? What

18 structure of control did he reflect?

19 A. I cannot recall at the moment what position he was holding at the,

20 but he came on behalf of the Main Staff of the SPS.

21 Q. Did he appear to have authority in some way over events in the

22 area?

23 A. I'm not aware that he had any special powers. At least he didn't

24 share it with us. But he often came to attend meetings of the Main Staff

25 together with other leaders, Ruzica Gajevic, Milan Minic, Dragan Tomic,

Page 35962

1 the other Dragan Tomic. I cannot recall all the people who attended.

2 Q. Did you then or thereafter get an understanding of who was running

3 things in Kosovo after the bombing began; who was the military commander

4 for the Serbs, who was the civil commander? Did you get an understanding?

5 Can you help us?

6 A. I cannot help you there. I don't know who was the civilian

7 commander or the military commander, for that matter.

8 Q. Did you get to learn of anybody called the Supreme Command; and if

9 so, how it was composed?

10 A. I heard about the Supreme Command, but I don't know who was on it.

11 Q. Where did you hear about it from?

12 A. That's something that everybody knows in Serbia, that there is a

13 Supreme Command, like in every state.

14 Q. Very well. In your evidence yesterday in answer to the accused,

15 you said that there was no, to your knowledge, ethnic cleansing in Kosovo

16 apart from that of Serbs and Montenegrins. And speaking of the columns of

17 Albanians, you said this: That the columns of Albanians you came across

18 were such that it didn't look to you as if they were refugee columns at

19 all because they were going by slowly, past the railway station and the

20 bus station, carrying small bags. They didn't look the way Serb columns

21 looked. The columns looked to you to be sort of construed, manufactured,

22 staged so that they should look like refugees.

23 Is that really your evidence on what happened to the Kosovo

24 Albanians in Pristina following the bombing in 1999?

25 A. I adhere to what I said yesterday, except I didn't say next to the

Page 35963












12 Blank page inserted to ensure pagination corresponds between the French and

13 English transcripts.













Page 35964

1 railway station, I said in the direction of the railway station.

2 Q. Very well. I'd like you, please, to look with us at an exhibit.

3 The number is Exhibit 15, already produced. It's on Sanction. Sorry.

4 [Videotape played]

5 "People and its identity. The ethnic Albanians that once

6 dominated this city are in flight. Forced from their homes, threatened

7 and abused by the Serbian police, they are being herded into trains

8 destined for the Macedonian border. They leave behind a country and a way

9 of life which they may never see again.

10 "The police came to our houses and told us to get out. They said

11 they'd kill us if we didn't leave. They beat up my son. We've come here

12 without money or possessions.

13 "The border between Kosovo and Macedonia has become one vast and

14 sprawling refugee camp. It could be a scene from the heart of Africa, but

15 this is the heart of modern Europe. Tens of thousands are now here. Tens

16 of thousands more ..."

17 MR. NICE:

18 Q. The first clip shows Pristina railway station, and the composition

19 takes refugees to the border. Is what you saw at the railway station on

20 the clip the sort of false, staged exodus that you're describing?

21 A. I believe that I said yesterday where this was happening. Whether

22 it is the railway station of Pristina or some other railway station, I

23 don't know. You cannot see the name of the station here. I have not been

24 there.

25 I spoke only about what I saw in Pristina, the people moving from

Page 35965

1 the area of Dardanija towards the bus terminal and the railway station.

2 Q. I'm going to suggest to you, Mr. Balevic, that your account of

3 columns of Albanians looking like they were staging being refugees is

4 unacceptable and simply false, that you're basically false in suggesting

5 that these people were staging anything. You knew perfectly well that

6 people were being forced out of Pristina, didn't you?

7 A. I equally reiterate that your statement is incorrect and that

8 people were not driven out from Pristina by force. You cannot tell me

9 that I'm saying something false. I am saying that you are not right. I'm

10 speaking of Pristina.

11 Q. I want you to consider one extract from Exhibit 145, already an

12 exhibit in the case, on the overhead projector in English at page 137.

13 This is Under Orders. Mr. Balevic, I'll read it to you slowly. This

14 deals with the position at Pristina according to Human Rights Watch, and

15 we'll see how they sourced their material, if necessary, from the

16 footnotes. But the evidence is to this effect, or the book is to this

17 effect, and the book is in evidence.

18 Starting at the top of the page: "Police and masked

19 paramilitaries went door-to-door at the end of March, telling residents

20 that they had to leave at once. MB, a mother of two from Tashlixhe said

21 that she had been told: 'Come on, get out, you must go to the railway

22 station.' In come cases witnesses were told they would be killed if they

23 failed to comply. A medical doctor and his family were told by masked

24 men, 'If you don't leave in one minute, we will kill you all.'"

25 And then this: "Upon leaving their homes, residents were directed

Page 35966

1 by police towards the railway station in Pristina, while others left by

2 car. The side roads were blocked by armed police and paramilitaries: A

3 Vranjevac resident said that people who tried to walk in another direction

4 were forced back by the police. Thousands of Pristina residents were

5 gathered at the railway station, with armed police posted around the area

6 ..."

7 You were there. Is it your case that this account is true, false,

8 or don't you know?

9 A. I know absolutely nothing about this. I didn't go to Tashlixhe,

10 that place is called Tashlixhe. I was in Dardanija, so I know nothing

11 about this. You would have to find somewhere an article stating of Serbs

12 and Montenegrins who were fleeing, because this particular publication was

13 inclined towards separatists. And there were other publications of the

14 same sort led by people by -- like Kandic, Biserko, et cetera.

15 Q. Mr. Balevic, you gave -- you were asked about ethnic cleansing,

16 and you volunteered an answer which referred to the ethnic cleansing of

17 Serbs and expressly or by implication said there was no ethnic cleansing

18 of Kosovo Albanians from the area of which you had knowledge. Now I want

19 you to help the Court, please, and we'll look at one more extract and then

20 I'm done. We've looked at the document before. It's "As Seen, As Told"

21 again, Exhibit 106, and you will remember, Mr. Balevic, that this was the

22 document that we looked at yesterday where you found -- where we found

23 together passages dealing with the KLA as well as with the Serbs.

24 MR. NICE: If Mr. Prendergast would put the page 236 on the

25 overhead projector, right-hand side.

Page 35967

1 Q. Now, this is in Kosovo Polje. It's on the 29th of March. We can

2 see it there. "Shots were fired --" Incidentally, it will help you if I

3 set it in context although we don't have time. The previous passage deals

4 entirely with what happened to a KLA leader, commander, and his family.

5 Now we look at something different.

6 "On the 29th of March, shots were fired at the house of a well

7 known Kosovo Albanian doctor. VJ and police broke into the house, looted

8 it and expelled the inhabitants. An interviewer who later entered the

9 doctor's premises (his house and clinic combined) reported finding the

10 bodies of 11 dead (two children, four women and five men). All had had

11 their throats slit open. Only a four-year-old girl had survived this

12 massacre."

13 This is Kosovo Polje in the time before you left. Do you have any

14 knowledge, were you ever told anything about this?

15 A. No.

16 Q. In light of your answer to the --

17 A. Because if I had any knowledge, I would share it with you. But

18 what is interesting, Mr. Nice, is that you haven't asked me a single

19 question relating to the tragedy experienced by the Serbs and

20 Montenegrins, the murder in 1999 --

21 Q. [Previous translation continues] ...

22 A. -- of people in Gacko.

23 Q. [Previous translation continues] ...

24 A. The blowing up of buses.

25 Q. [Previous translation continues] ...

Page 35968

1 A. You only take examples --

2 JUDGE ROBINSON: Mr. Balevic, just answer the question.


4 Q. You see --

5 A. I'm sorry. I answered the question. But Mr. Nice is picking out

6 the sequences that only -- the kind that fits with the indictment.

7 JUDGE ROBINSON: That's not a comment for you to make.

8 JUDGE BONOMY: That's the whole point.

9 MR. NICE: Yes, indeed.

10 THE WITNESS: [Interpretation] I don't know. I gave the answer.

11 MR. NICE:

12 Q. But more than that. You see, you gave an answer yesterday which

13 effectively excluded suffering of Kosovo Albanians. They were either

14 falsely pretending they were refugees, and they weren't killed or

15 compelled in any way to leave the area. Now --

16 JUDGE ROBINSON: Mr. Nice, didn't the witness acknowledge

17 yesterday that there were some misdeeds committed by Serbs, but they were

18 malcontents, criminals.

19 MR. NICE: Yes, Your Honour is quite right, he did. He

20 acknowledged it to that extent to me in cross-examination.

21 Q. But this, as you'll see, Mr. Balevic, refers to the VJ, and it

22 refers to the police. Do I take it from your answer that you say you

23 don't know about it but that you allow for the fact that it may have

24 happened?

25 A. I do not allow that possibility, because I know nothing of that.

Page 35969

1 I'm not aware of that at all, and that's what I said yesterday. Apart

2 from the examples I mentioned, which were exceptions, but that certainly

3 did not constitute our policy, because I know all about the policy.

4 MR. NICE: Thank you.

5 JUDGE ROBINSON: That concludes your cross-examination, Mr. Nice?

6 MR. NICE: Certainly, Your Honour, yes.

7 JUDGE ROBINSON: We're going to take a break now for 20 minutes.

8 Mr. Nice, would you let us have the authorities.

9 MR. NICE: Yes. And it would probably help if I flag them for

10 relevance, although of course we've included larger passages than the

11 narrow ones so that you have context.

12 JUDGE ROBINSON: I thought you would have marked them, underlined.

13 MR. NICE: We can do that, whichever you prefer.

14 --- Recess taken at 10.33 a.m.

15 --- On resuming at 11.00 a.m.

16 JUDGE ROBINSON: Mr. Milosevic, you're to re-examine, if you wish.

17 THE ACCUSED: [Interpretation] Now the microphone is on.

18 Re-examined by Mr. Milosevic:

19 Q. [Interpretation] Mr. Balevic, yesterday when Mr. Nice started

20 cross-examining, he spoke about dismissing Albanians from their jobs. I

21 am going to quote paragraph 87 of the indictment where it says, inter

22 alia: "Throughout the end of 1990 and throughout all of 1991, thousands

23 of Kosovo Albanians -- Kosovo Albanian doctors, teachers, professors,

24 workers, police and civil servants were dismissed from their positions."

25 Tell me, please, was anybody dismissing Albanians from their jobs

Page 35970

1 because they were Albanians?

2 A. Mr. President, no. They left their jobs of their own free will.

3 I said that yesterday, and I said that on the 25th of January.

4 Q. Are you aware of any campaign or any kind of organised activity

5 aimed at dismissing Albanians from their jobs in your community?

6 A. Nothing of that kind was done by official policy. This was done

7 of their own accord. They left their jobs, and I underline this, in order

8 to paint a certain picture before the international community, the

9 international public, to show that this was this great injustice against

10 them, and then whatever happened to Kosovo and Metohija was to follow.

11 There was no campaign against them.

12 Q. Mr. Nice asked you why you used the word "Siptar." I don't know

13 whether the explanation given was sufficiently clear. You lived in Kosovo

14 for a long time. What is the word that Albanians use for themselves?

15 A. I give an explanation yesterday, and I claimed that that's the way

16 it is. Excuse me.

17 Q. I'm not asking you about your explanation. We heard it yesterday.

18 A. Yes.

19 Q. Tell me, what is the word that Albanians themselves use for

20 themselves?

21 A. "Siptari." They call themselves "Siptari." I claim that with

22 full responsibility. They do not say "Albanians," they say "Siptari."

23 Q. Yes, they know that too. Mr. Nice spoke to you then about some

24 Serb positions and Albanian positions that differ. In the period of time

25 that you are testifying about in relation to events in Kosovo, were these

Page 35971

1 Serbian positions or generally accepted Yugoslav positions? When I say

2 Yugoslav, I mean the presidents of Yugoslavia, the Yugoslav political

3 leadership, the leaderships of the other socialist republics at the time.

4 Were these positions espoused by all of them or were they some kind of

5 separate Serb positions?

6 A. Mr. President, what positions are we talking about? Could you

7 tell me please.

8 Q. Positions about the political situation in Kosovo.

9 A. Yes.

10 Q. Were these Serb positions exclusively or were these Yugoslav

11 positions, positions espoused by the Yugoslav leadership?

12 A. They were not exclusively Serb positions.

13 Q. When mentioning the fact that they were readily admitted into

14 university and readily given diplomas, you said by way of proof that a

15 professor made a speech - Professor Milanovic was the name if I wrote it

16 down correctly - at that gathering that you chaired. As for this

17 inflation of diplomas, as it were, and this non-selective admission

18 policy, in terms of individuals who were coming from Albania and were

19 admitted at Pristina University, is that the only thing you know, what you

20 heard from Milanovic that day at that particular meeting, or do you know

21 more about that? Do you know that this was something that was discussed

22 more widely in public?

23 A. This is Vujadin Milanovic. This is a well-known professor. I

24 heard him speak and his speech is contained in this book and there is no

25 need for me to read it out if this was admitted here anyway. Later on I

Page 35972












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13 English transcripts.













Page 35973

1 also heard about this and people were saying this is the way things were

2 done. There is a lot more in this book, and what it says is far more

3 serious than what I referred to yesterday.

4 Q. All right. You're not going to read out from that book now but

5 there are also stenographic notes from the meeting you chaired contained

6 in that book; right?

7 A. Yes.

8 Q. All right.

9 A. But I listened to the speech as it was being made because I was

10 chairing the meeting.

11 Q. All right. Mr. Nice said or, rather, he said he tried to

12 establish the reasons why Serbs, as he said, wanted Albanians not to get

13 an education. Was there ever a position like that taken by Serbs? When I

14 say "Serbs," I'm referring to the public opinion, the leaderships in

15 Kosovo, local leaderships, republican leaderships, Yugoslav leaderships.

16 Did it cross anyone's mind to have that kind of motive, not to education

17 the Albanians?

18 A. I claim that there was never such a motive or such a position.

19 Q. Mr. Nice said that some group was sending delegations. Tell me,

20 who was it that sent delegations? For example, to see Dizdarevic, who

21 sent this delegation? You led that delegation. Who sent you on this

22 delegation that went to see Dizdarevic?

23 A. Specifically we were sent by a group of 10 to 15.000 persons who

24 were gathered before the Braca Krajinovic building in Kosovo Polje because

25 they wanted to go to Belgrade, all of them. They asked for trains. And

Page 35974

1 then we tried to stop that. We tried to prevent thousands of them going

2 to Belgrade. We said that a delegation should be chosen, and these towns

3 selected a delegation that went to see Dizdarevic in this particular case.

4 Q. All right. In the clip -- or, rather, in the excerpt from Raif

5 Dizdarevic's book that Mr. Nice showed a few minutes ago, it says on page

6 365 - the one that he indicated, too, when he was quoting from it - that

7 Petar Gracanin called him. Do you remember that at that time Petar

8 Gracanin was president of the Presidency of the Socialist Republic of

9 Serbia after Ivan Stambolic?

10 A. Yes.

11 Q. So the president of the Presidency of the Republic of Serbia,

12 Petar Gracanin, called the president of the Presidency of Yugoslavia, Raif

13 Dizdarevic, and asked him to receive a delegation from Kosovo?

14 A. Because first the chief of protocol called us, and he wanted to

15 receive us. We didn't want to talk to the chief of protocol. We insisted

16 that we talk to Dizdarevic himself. Then Petar Gracanin -- President

17 Petar Gracanin intervened and then he received us.

18 Q. And then this sentence that is being linked to this possible

19 suspicion that Solevic was on the delegation with you and others, and I

20 don't know what the point of this is even if he were. I'm going to read

21 the sentence out. "The delegation was led by Balevic, a party official

22 from Kosovo Polje who at that moment was considered to be a moderate

23 compared to Solevic, Kecman, and other Kosovo extremists." Is that the

24 truth as far as you know?

25 A. I don't know what President Dizdarevic wanted to say by this. I

Page 35975

1 did lead the delegation, but it's not that I was officially elected. They

2 said, Since you are the president of the regional conference, you can head

3 the delegation. He probably meant what was actually being said, because I

4 actually tried to find a common solution with the Albanians through a more

5 moderate policy. I guess that's the only way how he could have formed

6 this opinion that I was moderate compared to Solevic and others. I don't

7 know how else.

8 Q. All right. Towards the end of this page, if you could please be

9 so kind as to look at it, I'm just going to quote the last four or five

10 lines. Dizdarevic says: "They asked not to accept Morina's, Azemi's and

11 Shukrija's resignations. One of them said verbatim that if these

12 resignations are accepted, then that would mean the resignation of

13 Yugoslavia or the Albanisation of Yugoslavia."

14 THE INTERPRETER: The interpreters note that they do not have the

15 text so it is very hard to interpret this way.

16 JUDGE KWON: Page 2 or 3 in the English version.

17 THE INTERPRETER: The interpreters do not have that text. I'm

18 sorry.

19 MR. NICE: They should, I think.

20 JUDGE ROBINSON: The text should be passed on to the interpreters.

21 MR. NICE: I think they do actually have text but they've probably

22 been provided with a lot of material, hard to find.

23 JUDGE ROBINSON: It's now on the ELMO.

24 MR. MILOSEVIC: [Interpretation]

25 Q. Very well. The point is this; they requested the resignations of

Page 35976

1 Morina, Azemi, and Shukrija not be accepted. Morina, Azemi, and Shukrija

2 are Albanians. I believe that there is no doubt about that.

3 A. Yes, they are Albanians.

4 Q. So you are a delegation and Mr. Nice asked you whether there were

5 any Albanians on the delegation and you said no, there weren't any or,

6 rather, he asked you -- or, rather, Dizdarevic asked you about this too.

7 So this delegation didn't include any Albanians but you asked for support

8 to be given to Morina, Azemi and Shukrija, that is so say the most

9 prominent Albanian representatives.

10 A. This was mentioned, but Mr. President, how we actually put this

11 into words is something I cannot say now. I think this was referred to.

12 I think it was Rrahman Morina. I'm not sure about Azemi.

13 Q. He probably recorded it very precisely.

14 A. Probably.

15 Q. At any rate your delegation asked for support to be given to

16 Azemi, Shukrija and Morina.

17 A. Absolutely, yes.

18 Q. And all three Albanians?

19 A. Yes.

20 Q. Thank you. Dizdarevic referred to a plan --

21 THE ACCUSED: [Interpretation] Or, rather, could we have the tape

22 played from the part where Ivan Stambolic speaks and then I would like to

23 put a question to Mr. Balevic.

24 JUDGE ROBINSON: Let the tape be played.

25 MR. NICE: We may need some identification of the clip. I

Page 35977

1 forecast from the question that it's probably The Death of Yugoslavia

2 tape, and if it's the one involving Mr. Stambolic, President Stambolic,

3 then it will be the very beginning, I think.

4 THE ACCUSED: [Interpretation] It says here in the transcript clip

5 1.

6 [Videotape played]

7 MR. MILOSEVIC: [Interpretation]

8 Q. Very well. Thank you. So Ivan Stambolic says that it was

9 suggested to him that he should go to Milosevic but that he wanted me to

10 go. Secondly, you testified here that you had invited me.

11 A. Yes.

12 Q. If he is asking me to go in both cases and you are inviting me,

13 what kind of plan can I have, then, in relation to going to Kosovo?

14 A. No plan whatsoever.

15 Q. We can play this clip in front of the cultural centre when this is

16 coming to an end, when they say they are beating us and when I say no one

17 should be allowed to beat you. And then the masses of people became more

18 quiet. Did you notice what they were chanting?

19 A. They were chanting "Yugoslavia," they were singing the national

20 anthem, and they were asking for freedom.

21 Q. All right. That can be heard from the clip, the masses chanting

22 "Yugoslavia"?

23 A. Yes.

24 Q. All right. Mr. Nice said to you yesterday that this group, as he

25 called it, sent various demonstrators to different places. Who was it

Page 35978

1 that was sending different people to different places?

2 A. I don't know. I don't know about these groups and these

3 demonstrators. I never had any such information.

4 Q. Mr. Nice indicated that it was I who sent them to different

5 places. I'm going to read something out to you now from what Mr. Nice

6 submitted yesterday. This is an interview by Mr. Solevic. That is page

7 03641691. In the paragraph on the left. I'm not going to read the whole

8 thing. The question is: "You started with Vojvodina.

9 "Miroslav Solevic: Yes. Those attacks started from Vojvodina."

10 He's talking about attacks from Vojvodina, attacks against Serbs

11 in Kosovo. "They were biting." You remember, after all, you were at that

12 meeting in Kosovo Polje in 1998 when -- 1988, when we decided to go.

13 Milomir Minic and Dragan Nikolic came from Serbia. This is Milomir Minic

14 and Dragan Nikolic who were party officials; right?

15 A. Yes.

16 Q. And it says, "Now you should ask them what kind of positions they

17 had then.

18 "Question: They were quite perplexed. We have to stop." This is

19 what he whispered to Minic. "Minic, perspiring: Try that.

20 "Solevic: Exactly. I got up at this meeting and I said, please,

21 there will be no more bargaining here. No one should come to see us any

22 more. Now we are going to go to light a fire underneath the windows of

23 those who are against us."

24 This is the interview given by Mr. Nice, provided by Mr. Nice.

25 This is an interview with Miroslav Solevic but provided by Mr. Nice.

Page 35979

1 JUDGE BONOMY: Was that put to the witness yesterday?

2 MR. NICE: It --

3 THE ACCUSED: [Interpretation] Oh, yes. Oh, yes, it was.

4 MR. NICE: I think the position it's in the original Serbian

5 newspaper or B/C/S newspaper but not translated because, of course, we

6 have to be selective in what is translated but I have no objection,

7 providing it's capable of being dealt with by the Court and that it should

8 be dealt with in this way because otherwise the accused can't take the

9 benefit of a document that's put in.

10 JUDGE KWON: It's the third --

11 JUDGE ROBINSON: Mr. Milosevic, then let it be put on the ELMO so

12 it can be translated for our benefit.

13 JUDGE KWON: It's 10th of February version in B/C/S. Last footage

14 it is 1691 ERN number.

15 THE ACCUSED: [Interpretation] When I said whether the witness was

16 shown this, Mr. Robinson, I don't mean whether what I am quoting was shown

17 the witness but whether the article was shown the witness, and it was.

18 But what was quoted wasn't what I can see in the article.

19 It's talking about the meeting, and in the hall Minic tells me,

20 Have you gone mad? and then I whispered to him, Don't you worry about

21 that. And then the subtitle is What Milosevic nonsense that you -- it

22 says that it was rumoured that you agreed upon everything with Milosevic

23 and that it was all construed. Bosic said What Milosevic, nonsense. We

24 did everything on our own bat. The only problem was how we should go, et

25 cetera, et cetera.

Page 35980

1 MR. MILOSEVIC: [Interpretation]

2 Q. So Solevic himself in this interview says not only did I not send

3 them, but he says heaven forbid. We did that for ourselves.

4 Is that what you know happened? Is that how you know it?

5 A. I attended numerous meetings in Kosovo Polje. This conversation

6 between him and Minic is something I'm not aware of, Mr. President.

7 Q. I'm not asking you about the conversation but who sent the people

8 there and did they go and did anybody send them at all outside Kosovo or

9 was it their own initiative?

10 A. The Serbian and Montenegrin people, the Serbs and Montenegrins who

11 found themselves enmeshed in this drama of massive exodus and everything

12 else that accompanied it decided for themselves and then went around the

13 towns of Serbia to tell the people what was happening, what was going on

14 in Kosovo and Metohija and what was happening to the Serbs and

15 Montenegrins, to inform them of the situation and to ask them for help to

16 save Serbdom in Kosovo and Metohija, to save the Serbs and Montenegrins in

17 Kosovo and Metohija.

18 Q. As Solevic says, the attacks started from Vojvodina, they kept

19 stinging us by what they said, and then you went there - not you but the

20 citizens - went there to hold a rally because of these attacks that were

21 hurled at them from Vojvodina.

22 A. At their own initiative without any orders from Belgrade or

23 instructions from Belgrade. Not only to Novi Sad but other towns all over

24 Serbia. There were invitations coming from these Serbian towns to come

25 and hold rallies there, and there was even a rally that was held in

Page 35981












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13 English transcripts.













Page 35982

1 Skopje, for example.

2 Q. Very well. Now, you were asked by Mr. Nice, since he mentioned a

3 million people at Gazimestan, he asked you whether this was risky business

4 because there were many Albanians living in Kosovo, and you said no, that

5 it was not a risk. Do you remember, Mr. Balevic, in view of the fact that

6 there was this enormous mass of people gathered there, whether there was a

7 single incident that broke out throughout the whole day, the entire day,

8 the arrivals, the departures, the presence of all those people at

9 Gazimestan, did a spark fly at all? Did an incident take place? Was

10 anybody hurt or injured or anything like that?

11 A. Not a single incident, untoward incident took place either before

12 -- before the arrival or from the railway station to the rally itself, in

13 the cars, before the meeting, after the meeting. No incidents ever broke

14 out. Otherwise I would know about it.

15 Q. Now, let's go back to the demonstrations that took place in 1988

16 and throughout that year. Mr. Nice yesterday used a term "the

17 demonstrators used violence or force." Do you know whether at any

18 demonstrations throughout that year anywhere whether there was any

19 violence at all?

20 A. No. Except where there was destruction if you're talking about

21 the Albanians.

22 Q. I'm asking you about the demonstrations that you were asked about

23 by Mr. Nice when the Serbs went to complain and present their grievances.

24 A. Ah, yes, I see.

25 Q. Was there any violence in all those demonstrations?

Page 35983

1 A. No.

2 Q. Because he said the demonstrators used force or violence.

3 A. He said there were 300 armed Serbs as well in front of the

4 cultural centre and that's not true either.

5 Q. Would you explain this to me now, please: You mentioned, in

6 speaking of the meeting attended by the people you enumerated, you said

7 Gorica Gajevic, Milomir Minic, Dragan Tomic, the other Dragan Tomic,

8 Sainovic, et cetera. That's the order you gave us for the names. Now,

9 was this a meeting of the Main Board of Kosovo and Metohija, the meeting

10 of the Main Board of the Socialist Party of Kosovo and Metohija, in fact?

11 A. It was a meeting, as far as I remember, of an expanded nature with

12 more members. I wasn't a member of the board. I was there as secretary.

13 But it was an extended meeting of the members of Kosovo and Metohija, the

14 members of the Main Board, the provincial board.

15 Q. So it was an expanded meeting, an enlarged meeting; is that right?

16 A. Yes.

17 Q. And that means that all the provincial board members were there

18 plus all of you others who had some posts and functions, which means that

19 it was a meeting, if you say that the Main Board was there and that other

20 representatives of the Socialist Party were there, does that mean that all

21 these functionaries were there, officials were there as leaders in the

22 Main Board of the Socialist Party?

23 A. Yes. That's what I said, and I answered Mr. Nice's question and

24 said that they were there on behalf of the Main Board of the SPS, in fact.

25 Q. Thank you. Now, Mr. Nice showed you many people standing at the

Page 35984

1 railway station in Pristina or where else. Well, in Kosovo at any rate.

2 Many people near the border. And he quoted from a document. I assume it

3 was the Human Rights Watch or something like that, I can't quite remember

4 now, but he quoted from a document in which it said that there were armed

5 policemen standing round them.

6 Now, since I didn't see any armed policemen on the photographs and

7 images that were shown, any armed police encircling those refugees, and I

8 that if a foreign television station took that footage that must have been

9 something that would have been seen, did you see anywhere in Pristina any

10 armed policemen forcing the Albanians to go to the railway station and

11 move out?

12 A. I said that before, and I'm saying it again: I never saw that. I

13 said yesterday -- I told you yesterday about the bandits and crimes

14 committed by criminals and so on. I'm not claiming that there might not

15 have been people who would don the uniform of a policeman and abuse that

16 uniform, because the KLA had many police uniforms, too, so they might have

17 done that. I don't say that there wasn't any abuse of that kind, but as

18 far as the regular police force is concerned and regular policemen forcing

19 people out, I have no knowledge about that in the area of Pristina in

20 which I lived.

21 Q. Mr. Nice went on to quote a tragic event from that book, that is

22 that in Kosovo Polje the house and a clinic of an Albanian doctor was

23 stormed and people slaughtered there, as he said. He said this was done

24 by the policemen and soldiers. Tell me, please, you said you knew nothing

25 about that.

Page 35985

1 A. Yes, that's right.

2 Q. But tell me, had an incident like that happened, a massacre like

3 that happened, could that be hidden from the people? Would you have to

4 have known about that by virtue of your function?

5 A. It's impossible that anything like that could have happened

6 without my knowledge. That's the first point.

7 Secondly, I had my daughters living there, I had friends living

8 there, and I lived in Kosovo Polje myself in 1980, so it was impossible

9 for a massacre of that kind to have taken place without me knowing about

10 it in one way or another because I was and inhabitant.

11 Q. Well, did you hear of any crime committed by an army unit or a

12 police unit, anything like that? As a unit. I'm not talking about

13 sporadic incidents, individuals. Many individuals were arrested for the

14 various crimes they committed, but do you have any knowledge about any

15 kind of even the smallest unit of an army or a police force perpetrating a

16 crime and killing any civilians?

17 A. Mr. President, I claim with full responsibility that I never had

18 any information telling me that even the smallest military or police unit

19 had perpetrated crimes against the Albanian people.

20 Q. Mr. Nice mentioned various paramilitary formations as well. Now,

21 you in Pristina, and you were there throughout the time of the crisis and

22 the war, did you happen to see any paramilitary formation whatsoever?

23 A. No.

24 Q. Thank you, Mr. Balevic. I have no further questions.

25 THE ACCUSED: [Interpretation] Thank you, Mr. Robinson.

Page 35986

1 Mr. Robinson, may I be allowed to say something?


3 THE ACCUSED: [Interpretation] The next witness is Vladislav

4 Jovanovic. Yesterday and today, I came here in court with a raised

5 temperature because I got out of bed and I had a temperature. So might I

6 suggest that I start the examination-in-chief of Mr. Vladislav Jovanovic

7 on Monday, the next working day apart from tomorrow so that I could have a

8 chance to go back to bed and deal with my temperature, because I have had

9 a temperature on both days and I had to get out of bed. So I don't -- if

10 possible, as it's going to be a lengthy witness and I won't be able to get

11 through him tomorrow, might I be allowed to start my examination-in-chief

12 on Monday or the next working day after tomorrow, not tomorrow, and be

13 allowed to rest tomorrow?

14 JUDGE ROBINSON: Do you have a temperature now, Mr. Milosevic?

15 THE ACCUSED: [Interpretation] Well, I took two Paracetamols.

16 Perhaps it has gone down now but this morning it was 37.8, and yesterday

17 the nurse took my temperature at her own initiative when I returned from

18 the courtroom and it was above 37 degrees Centigrade. I didn't ask her to

19 take my temperature, she did so herself, because I thought that I should

20 continue and get -- but I don't feel too well. So I don't think I can

21 start the next witness today or tomorrow. The witness is prepared, but I

22 think for practical purposes, if I was allowed to get well now, that would

23 save perhaps a little more lengthy recuperation period later on.

24 JUDGE ROBINSON: We'll consult.

25 [Trial Chamber confers]

Page 35987

1 JUDGE BONOMY: Just before we deal with that, I have one question

2 for Mr. Balevic before he completes his evidence.

3 Questioned by the Court:

4 JUDGE BONOMY: I'm confused, Mr. Balevic, about where you were

5 living at the various stages of the matters which have been explored in

6 examination and cross-examination. Can you tell me when you lived in

7 Kosovo Polje.

8 A. I lived in Kosovo Polje from the 3rd of January, 1961, until

9 somewhere towards the end of 1980. I can't give you the exact day, but

10 that's the period. And then I moved to Pristina. I had a flat -- I mean,

11 I lived in Pristina, resided in Pristina.

12 JUDGE BONOMY: And that's until recently?

13 A. I was there until I was expelled by the Albanian terrorists,

14 forced to leave.

15 JUDGE BONOMY: Remind me of the date of that, please.

16 A. On the 19th I left Pristina, because my security was threatened,

17 with my family. I went to Kosovo Polje to stay with my daughter. And

18 then on the 26th, I left Kosovo Polje, in June 1999.

19 JUDGE BONOMY: So you were there from the 26th of March until --

20 you were there from the 26th of March, 1999, until June 1999. In Kosovo

21 Polje.

22 A. In Kosovo Polje, I was there from the 19th of June to the 26th of

23 May -- no, June. June, sorry. June. Because on the 19th of June I left

24 Kosovo for Pristina, went to stay with my daughter, and Kosovo Polje -- I

25 was in Kosovo Polje for seven days.

Page 35988

1 JUDGE BONOMY: Thank you.

2 JUDGE ROBINSON: Mr. Balevic, that concludes your testimony.

3 Thank you for coming to the Tribunal to testify. You may now leave.

4 THE WITNESS: [Interpretation] Thank you too.

5 [The witness withdrew]

6 THE ACCUSED: [Interpretation] I'd like to draw your -- I'd like to

7 draw the attention of the interpreters that their conversation is being

8 picked up by the microphone.

9 JUDGE ROBINSON: I'm sure they'll thank you for that,

10 Mr. Milosevic.

11 Mr. Nice, on this point.

12 MR. NICE: This point give rise, I think, to two issues: One,

13 whether this is now a stage in the trial where assigned counsel should be

14 in a position to step in and take the witness in chief. We understand the

15 witness has been prepared, and if assigned counsel is not in a position to

16 do that, then it's hard to see when he's going to be able to fulfil his

17 full role.

18 If the decision is against that, then the next question that

19 arises, and it was I think was forecast some time ago, is whether time

20 that is lost through ill health comes off eventually the time allocation

21 for the accused's case.

22 The rationale for all of that is that the accused's pattern of ill

23 health, which we saw last year and which we now see somewhat reflected in

24 what's happened last week and this, may be a pattern that is connected to

25 the amount of work he's doing on running this case at his own choice.

Page 35989

1 JUDGE ROBINSON: Well, he just had the flu.

2 MR. NICE: Well, that was last week he had flu. And that happened

3 also last year.

4 JUDGE ROBINSON: Last year he had other --

5 MR. NICE: And he had other things as well.

6 JUDGE ROBINSON: -- conditions, yes.

7 THE ACCUSED: [Interpretation] Mr. Robinson. Mr. Robinson.


9 THE ACCUSED: [Interpretation] Just a small addition. The whole

10 floor has the flu where I am.

11 JUDGE ROBINSON: It's going around, I know.

12 JUDGE KWON: Mr. Nice, in terms of practicability, do you think is

13 it possible or feasible for the assigned counsel to take up the conduct of

14 trial right now or tomorrow?

15 MR. NICE: I don't know, I don't know what the relation is between

16 the assigned counsel and the accused, but it might be tomorrow. And of

17 course, if it was tomorrow and if the courtroom was available, it might be

18 that we could use some other part of this --

19 JUDGE KWON: If the assigned counsel is allowed to meet the

20 witness.

21 MR. NICE: Yes. And this witness, incidentally, is a witness who

22 speaks fluent English, as I understand it, and no doubt would have been

23 very fully prepared and will know exactly topics that are going to be

24 covered.

25 JUDGE KWON: And his examination will not complete by tomorrow.

Page 35990












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13 English transcripts.













Page 35991

1 MR. NICE: We understand, I think, six and a half hours have been

2 allowed, so that will take us to the end of an ordinary sitting week in

3 any event. And I should say, for the assistance of Your Honours at the

4 moment, that I have in mind a plan to make cross-examination of the

5 witness easier by, with your leave, serving on the witness all the

6 documents I want him to consider for the Prosecution between the time

7 roughly when his examination-in-chief ends and his cross-examination

8 begins. That's the plan I've laid at the moment.

9 But in any event, yes, he could be taken in chief starting

10 tomorrow and we could perhaps finish him if not on Thursday, if there was

11 a court available on Friday, otherwise next Monday. But flu or not -- and

12 I don't think we've seen a medical report ourselves, and make no complaint

13 about that --

14 JUDGE ROBINSON: There was a medical report.

15 MR. NICE: Yes. Apparently we have seen one, it has come our way,

16 sorry, it just hasn't found its way to me yet. But flu or not, there is a

17 pattern in these things and the Court made the decision it did about

18 assigned counsel with that in mind. Nothing further.


20 MR. KAY: Your Honours, with respect to Mr. Nice, this is an

21 extreme application. This is an application that is not based on merit by

22 him. He should consider this application very carefully. It's a very

23 dangerous thing to start building up a so-called pattern against the

24 accused when he has genuine illness which may afflict anyone. It's the

25 time of year when it is. Medical reports have been filed with the Court

Page 35992

1 that establish the genuineness of his condition, completely unrelated to

2 his underlying medical condition relating to his cardiovascular problems,

3 and in his position at the moment, it is to his credit, in our submission,

4 that he came to court yesterday, participated in the proceedings fully,

5 and also did today rather than hold up these proceedings. In our

6 submission, that shows a genuine desire to assist this Court.

7 Any proceedings where an accused is struck down by flu, has a

8 temperature and is unwell, are at risk of being disrupted, and it can

9 happen to any of us. And in our submission it would be wholly wrong for

10 the Court at this stage, with such an important witness lined up to be

11 heard over many hours with which the accused has undertaken a considerable

12 amount of research, it would be wholly wrong for his medical condition,

13 which is one that can afflict anyone, to be respected [sic]. And in our

14 submission, the Court should understand his position and resume, as he

15 requests, the proceedings on the Monday. That would be a normal and

16 reasonable approach. To start putting this forward as some sort of

17 pattern I think can lead this Court into grave error in the way of viewing

18 this accused. We know from the medical report that this is completely

19 unrelated to the previous issue which afflicted him.

20 JUDGE ROBINSON: Thank you, Mr. Kay.

21 [Trial Chamber confers]

22 JUDGE ROBINSON: This is what we'll do: We'll one spend the rest

23 of today's session dealing with the legal arguments relating to the --

24 that evidential issue. Mr. Milosevic, you should be examined by the

25 doctor this afternoon when you return, and at the end of the day we'll

Page 35993

1 decide, having received the medical report on your condition. You may

2 leave now if you -- if you wish. I mean, Mr. Kay can deal with the legal

3 arguments, if that is your wish, or you may stay.

4 THE ACCUSED: [Interpretation] Well, Mr. Robinson, I cannot accept

5 anything being done here without my presence.

6 JUDGE ROBINSON: Very well. Mr. Nice.

7 THE INTERPRETER: Microphone, please, Mr. Nice. Microphone.

8 JUDGE KWON: Microphone.

9 MR. NICE: So sorry. Have Your Honours had an opportunity of

10 looking at the materials we provided?

11 JUDGE ROBINSON: No, we have not received them yet.

12 MR. NICE: I'm so sorry. I thought they ... I hoped that they

13 would have found their way to you a little earlier, but ... Now I've

14 mislaid mine. There are three decision, and Mr. Kay and Ms. Higgins, I

15 know, have provided a couple of others.

16 As I explained, first instance decisions have gone both ways. If

17 necessary and if helpful, we can, now that perhaps there's a little more

18 time today possibly make a full collection of what we know of first

19 instance decisions as well, but here are two Appeals Chamber decisions and

20 one first instance decision.

21 The first Appeals Chamber's decision in Brdjanin and Talic is in

22 respect of the subpoena for a journalist to attend, and the first flag is

23 on page 3 at paragraph 4, simply sets out the relevant background.

24 JUDGE BONOMY: Mr. Nice, I wonder if I can interrupt. I'm

25 speaking for myself, I know, but I find it very difficult to deal with the

Page 35994

1 relevance of an authority to a legal issue without first of all

2 identifying what the proposition is that you're advancing.

3 Now, my principal concern in all this, and I think it probably is

4 the principal concern of all of us, is whether things become somehow or

5 other part of the Prosecution case in the Defence phase, albeit they are

6 not somehow or other accepted by a witness in the course of

7 cross-examination.

8 Now, is there anything on that topic in any of these authorities?

9 MR. NICE: Yes, I think there is.

10 JUDGE BONOMY: There is.

11 MR. NICE: And --

12 JUDGE BONOMY: Could you help first of all by telling me what the

13 proposition is that you're advancing at the moment.

14 MR. NICE: And I'm sorry if I jumped to an assumption that we were

15 working on the same topic. We picked up, really, where we left off

16 yesterday, but our proposition is that the materials that have been laid

17 before the witness, and in particular the two newspaper articles and the

18 extracts from Death of Yugoslavia, are materials that can properly be

19 before the Chamber for the two reasons I advanced yesterday: One, that

20 they are in themselves capable of being evidence of the truth of the

21 things said because they are, even if a speech is of hearsay, and

22 documents tend to be hearsay, they nevertheless qualify under the

23 Tribunal's rules of admissibility. And secondly, they may qualify because

24 they touch on questions of credibility of a witness.

25 And so that the -- that's the underlying proposition. And it's

Page 35995

1 with that in mind that the Brdjanin case summary at paragraph 4 will be of

2 assistance.

3 "Brdjanin was charged with a 12-count indictment with, among other

4 things, crimes against humanity and grave breaches..." Next sentence:

5 "The Prosecution sought to have the article admitted into evidence,

6 claiming it was relevant to establishing that the accused possessed the

7 intent required for several of the crimes charged." The article is an

8 article of the Washington Post. "The Defence objected on several grounds

9 including that the statements attributed to Brdjanin were not accurately

10 reported. The Defence stated that, if the article were admitted, they

11 would seek to examine the appellant so as to call into question the

12 accuracy of the quotations noted above."

13 Now, it may be that with Your Honour's particularly articulated

14 concern we ought to go back to find out a little bit more about the

15 procedure. So if we come back to paragraph 2: "The appeal concerns a

16 subpoena issued by Trial Chamber II to compel the testimony of a war

17 correspondent concerning an interview he conducted while reporting on the

18 conflict in the former Yugoslavia." This is at page 2, paragraph 2.

19 "The appellant --" that's this -- the person, the subject of the

20 subpoena -- "served as a correspondent for the Washington Post in

21 Yugoslavia. On the 11th of February, 1993, the Washington Post carried a

22 story by the appellant containing quoted statements attributed to Radoslav

23 Brdjanin, one of the accused, about the situation in Banja Luka and the

24 surrounding areas. The article described Brdjanin as a 'housing

25 administrator' and 'avowed radical Serb nationalist.' He was quoted as

Page 35996

1 saying that 'those unwilling to defend (Bosnian Serb territory) must be

2 moved out' so as 'to create an ethnically clean space through voluntary

3 movement.' According to the article, Brdjanin said ..." various things

4 attributed to him. And then we came to the summary on paragraph 4.

5 Paragraph 5 -- sorry, I perhaps should complete paragraph 4.

6 "The Defence objected on several grounds, including that the statements

7 attributed to Brdjanin were not accurately reported ... stated that, if

8 the article were admitted, they would seek to examine the appellant so as

9 to call into question the accuracy of the quotations noted above. The

10 Prosecution then requested that the Trial Chamber issue a subpoena to the

11 appellant, and the Trial Chamber complied on the 29th of January."

12 Dates in February and March the subpoena was discussed, and, "At

13 these sessions the Prosecution informed the Trial Chamber that the

14 appellant had refused to comply with the subpoena. And on the 9th of May,

15 the appellant filed a written motion to set aside the subpoena. On the

16 same day, the Prosecution filed its response." And the Trial Chamber

17 heard oral argument on the motion. "Refusing to recognise a testimonial

18 privilege for journalists when no issue of protecting confidential sources

19 was involved, the Trial Chamber upheld the subpoena, and it also found

20 that the article was admissible."

21 So that here we -- although the overall hearing is concerned with

22 the compulsion of the witness, this part of the appeal jurisprudence deals

23 with the admissibility of such an article.

24 And if we can then turn to page 16 and to paragraph 50. Perhaps

25 -- it says this: "In view of the foregoing, the Appeals Chamber holds

Page 35997

1 that in order for a Trial Chamber to issue a subpoena to a war

2 correspondent a two-pronged test must be satisfied. First, the

3 petitioning party must demonstrate that the evidence sought is of direct

4 and important value in determining a core issue in the case. Second, it

5 must demonstrate that the evidence sought cannot reasonably be obtained

6 elsewhere.

7 "Finally, the Appeals Chamber will not address the submissions of

8 the parties on the second ground of the appeal, that is, the application

9 of the proper legal test of the facts. Having determined the principles

10 governing the testimony of war correspondents before the International

11 Tribunal, the Appeals Chamber considers that it is the role of the Trial

12 Chamber to apply these principles in the particular circumstances of the

13 case. The Appeals Chamber would, however, offer the following

14 observations.

15 "First, contrary to the Trial Chamber's apparent fear, even if

16 the Trial Chamber were to decide that the appellant should not be

17 subpoenaed to testify, that need not mean that the article must be

18 excluded (and the Prosecution disadvantaged to that extent). The

19 admissibility of the article depends principally on its probative value

20 under Rule 89(C) and the balance between that probative value and its

21 potential to undermine the fairness of the trial under Rule 89(D).

22 Because the article is hearsay, the Trial Chamber will also want to

23 examine what indicia of reliability or unreliability it carries." And

24 that refers to a decision of this Chamber in Kordic and Cerkez on the

25 statement of a deceased witness.

Page 35998

1 "As with many pieces of hearsay evidence, the inability of a party

2 to challenge its accuracy by cross-examining the declarant (in this case

3 the appellant) does not mean that it must be excluded. Rather, that

4 inability would diminish the confidence the Trial Chamber could have in

5 its accuracy and thus the weight the Trial Chamber would give it.

6 "At the same time, and contrary to the Trial Chamber's apparent

7 counterbalancing fear, admitting the article without subpoenaing the

8 appellant need not prejudice the accused. The Defence may still question

9 the article's accuracy, and the Trial Chamber will have to take account of

10 the unavailability of the appellant in determining how much weight to give

11 the article.

12 "Finally, whatever evidentiary value the article may have, it is

13 the Trial Chamber's task to determine whether the appellant's testimony

14 itself will be of direct and important value to determining a core issue

15 in the case. The Defence has offered two justifications for seeking the

16 appellant's testimony. The first is that his testimony will enable the

17 Defence to challenge the accuracy of the statements attributed to Brdjanin

18 in the article. The second is that the appellant may place Brdjanin's

19 statements in a context that will cast them in a more favourable light ...

20 With regard in particular to the first justification - concerning accuracy

21 - given that the appellant speaks no Serbo-Croatian and thus that he

22 relied on another journalist for interpretation, the Appeals Chamber finds

23 it difficult to imagine how the appellant's testimony could be of direct

24 and important value to determining a core issue in the case. In any

25 event, determining whether the appellant's testimony on either score may

Page 35999












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13 English transcripts.













Page 36000

1 have direct and important value to a core issue in the case requires a

2 factual determination that is properly left to the Trial Chamber.

3 "Therefore, should the Prosecution ... still desire that the

4 appellant be subpoenaed to testify before the International Tribunal it

5 will have to submit a new application..."

6 Thus, then, the Appeals Chamber decision on the approach or an

7 approach to be taken to a newspaper article. And that brings us in a

8 two-stage process to His Honour Judge Bonomy's particularly articulated

9 concern dealt with persuasively, not authoritatively in the Appeals

10 Chamber sitting on appeal from the ICTR in the following case of Rutaganda

11 decided by a Court comprising His Honour Judge Meron, Judge Pocar, Jorda,

12 Shahabuddeen and Guney, a judgement rendered on the 26th of May of 2003.

13 And if Your Honours would go to, as it appears here, page 9 of 13, under

14 heading C, Cross-examination of Rutaganda Using Collateral Documents.

15 "The appellant submits that the Trial Chamber erred in law by

16 allowing the Prosecution to use three non-disclosed documents during his

17 cross-examination. The documents at issue are pictures taken from a book

18 in the ICTR library, an Agence France Press newspaper clipping, and the

19 articles of the Association of Radio Television Libre Mille Collines

20 showing the initial shareholders. The appellant argues that as these

21 documents were not disclosed during the Prosecution case, the Prosecution

22 was effectively permitted to split its case. In addition, according to

23 the appellant, the documents were admitted as hearsay evidence without any

24 inquiry being made as to their reliability.

25 "Lastly, the appellant argues that the Trial Chamber failed to

Page 36001

1 apply the principle of equality of arms. In support of this submission,

2 the appellant cites a specific example to show that a different standard

3 was imposed on him. The appellant concludes that the prejudice suffered

4 calls for a retrial.

5 "The Prosecution submits that the arguments are baseless, contends

6 that the documents, deemed relevant to the cross-examination by the Trial

7 Chamber, were not subject to disclosure and no prejudice was suffered by

8 the appellant through the use of the documents.

9 "The record shows that the start of the cross-examination -- at

10 the start of the cross-examination of the appellant, the Prosecution

11 presented the Chamber with a file containing documents that it intended to

12 use during cross-examination. The three documents cited by the appellant

13 were also within the file, and had not been previously disclosed to the

14 Defence. The Trial Chamber permitted the Prosecution to tender them, but,

15 in order to allow the appellant time to familiarise himself with the

16 materials, postponed questioning on them until the following day."

17 Pausing there, the practice of providing cross-examination

18 documents ahead of cross-examination may have been particular to that

19 Chamber at the time. The presentation of the documents in this

20 cross-examination in the course of the giving evidence will not, I think

21 -- will not, I respectfully submit, change matters of principle at all.

22 Paragraph 283: "The issue the Appeals Chamber must first settle

23 is whether, given that the materials had not been previously disclosed in

24 conformity with Rule 66 or 68 of the Rules, the Trial Chamber erred by

25 allowing the Prosecution to use the materials during the cross-examination

Page 36002

1 and, if so, whether this error is such as to invalidate the judgement.

2 "Considering that the photographs, the press clipping and the

3 articles of Association of RTLM bordered on issues that had been raised by

4 the appellant during examination-in-chief, the Appeals Chamber considers

5 that the Trial Chamber had the discretion to admit them during

6 cross-examination of the appellant. Moreover, the documents in question

7 were not documents the Prosecution was required to disclose under Rule

8 66(A) or permit the inspection thereof under Rule 66(B) of the Rules.

9 Since the documents did not seem to be of an exculpatory nature for the

10 appellant, the Prosecution was under no obligation to disclose them to the

11 appellant under Rule 68 of the Rules. The allegation by the appellant

12 that the Prosecution did not discharge its burden of disclosure is thus

13 unsubstantiated.

14 "The appellant contests the use and admission of photographs taken

15 from a publication entitled Rwanda, les medias du genocide. The nine

16 photographs show the Interahamwe at an allegedly peaceful demonstration in

17 support of the Nzanzimana government, various Rwandan personalities

18 including the then president ..., 'moto taxis', the appellant wearing an

19 MRND cap and the appellant and the Interahamwe at the MRND extraordinary

20 congress held in July 1993. The record shows that the Prosecution

21 indicated during the trial that it obtained the publication from the ICTR

22 library for use in the cross-examination of the appellant.

23 'The trial record shows that during the examination-in-chief, the

24 appellant also spoke of the 'moto taxis,' referred to as the 'Interahamwe

25 taxi', and of his attempt to initiate with others the holding of a

Page 36003

1 possible Interahamwe za MRND congress, which was subsequently relegated

2 behind the MRND party congress. In addition, the appellant indicated

3 during his examination that he wore an MRND hat when he attended meetings

4 and that he had participated in MRND rallies; and throughout his

5 examination, the appellant spoke generally about the structure, activities

6 and purpose of the Interahamwe za MRND.

7 "Therefore, in the opinion of the Appeals Chamber, the appellant

8 has not demonstrated that the Trial Chamber erred by admitting the

9 photographs contained in the publication entitled Rwanda, les medias du

10 genocide -" means of genocide - "which would afford the Prosecution the

11 opportunity to rebut the allegations made by the appellant during his

12 cross-examination. In any event, were it established that the photographs

13 should not have been admitted, the Appeals Chamber would still be of the

14 opinion that the appellant had not demonstrated that he suffered any

15 prejudice by their admission or that they had an impact on the judgement.

16 "As regards the AFP clipping dated the 14th of May 1994 and

17 relating to statements ascribed to Robert Kajuga, chairman of the

18 Interahamwe za MRND, and the articles of Association of RTLM with the list

19 of initial shareholders, the Appeals Chamber finds that the Trial Chamber

20 had the inherent discretion to admit them.

21 "In seeking to have the documents admitted prior to

22 cross-examination, the Prosecution contended that it intended to use them

23 in response to matters raised during the appellant's examination-in-chief.

24 The record supports this argument. The appellant testified about Robert

25 Kajuga in the course of his examination, and stated that he never heard

Page 36004

1 anything discriminatory from Kajuga. Likewise, concerning RTLM, during

2 his examination-in-chief, the appellant testified about his investment in

3 the station and gave details and names of other shareholders.

4 "The Appeals Chamber finds, therefore, that it has not been

5 established that the Trial Chamber erred in admitting the press clipping

6 and the articles of Association of RTLM.

7 "It should be recalled that the Trial Chamber accorded the

8 appellant sufficient time to familiarise himself with the photographs, the

9 press clipping and the articles of Association. However, counsel for the

10 appellant did not avail herself of the opportunity to re-examine the

11 appellant on the photographs or on the articles of Association.

12 Notwithstanding, during cross-examination by the Prosecution on the

13 photographs, the Presiding Judge indicated that the author's comments

14 should be treated with caution. As regards the press clipping, the

15 Appeals Chamber notes that the appellant called into question the

16 authorship of the article and underscored that the statements contained

17 therein were attributable solely to the chairman of the Interahamwe. The

18 appellant has not shown that the Trial Chamber failed to consider these

19 factors when admitting the materials and when assessing their impact on

20 his testimony.

21 "Lastly, the Appeals Chamber notes that the appellant has not put

22 forward any convincing argument to show that the documents were unreliable

23 or that the Trial Chamber violated the doctrine of equality of arms." And

24 thus dismisses the arguments of the appellant that the Trial Chamber erred

25 in law by the admission of the documents at that stage.

Page 36005

1 Your Honours, because I hadn't been able to make the documents

2 available to you -- these judgements available in advance, I took you

3 through the passages in full. And in my submission, we have here two

4 authorities going to show the admissibility in principle of a newspaper

5 article of the kind that has been put before the last witness, or indeed

6 of the clips from the film or television documentary The Death of

7 Yugoslavia, and that the judgement from the Appeals Chamber sitting for

8 the ICTR shows that for these documents to be presented to a witness in

9 cross-examination is an entirely proper course to take where issues arise

10 in the way that they have arisen in this case, in many ways parallel to

11 that in the case under appeal.

12 I was going to turn to the last authority but I see Your Honour

13 has a question.

14 JUDGE BONOMY: My question is what were the facts of this case?

15 I'm concerned in particular about paragraph 287. The Appeals Chamber even

16 conclude that even if there was some error in admitting the material, it

17 didn't have any impact on their judgement, which is at first sight an odd

18 comment but that there might be an explanation for that. But what were

19 the allegations that the appellant was making which were being rebutted by

20 using this material?

21 MR. NICE: The full detail of those, if you're going to sit over

22 the break, may be something to which I would prefer to return, but Your

23 Honour's drawing to my attention that particular paragraph, the first

24 question Your Honour raised, I think is identifying a reality of these

25 cases, particularly in light of recent Appeals Chamber rulings, and that

Page 36006

1 is that there has to be articulated judgements identifying routes to

2 decisions that Trial Chambers make. And therefore, if documents are

3 admitted such as the documents that were admitted here or as documents

4 that we would ask you to admit through this witness, but in the event they

5 form no part of the decision-making process and therefore no part of the

6 actual judgement, why then it can properly be argued that the Chamber has

7 put them out of its mind and in the event not relied upon them.

8 And that's -- I think I mentioned earlier I was, with great

9 respect to the Appeals Chamber, dealing with the issue when it arose in

10 front of this Chamber differently constituted for the dead witness. I was

11 always sad that I hadn't persuaded an acceptance of the material on the

12 basis that the Trial Chamber would not have relied upon it without more

13 material on the basis that it wouldn't have relied upon it on its own.

14 JUDGE BONOMY: But I'm directing attention to that paragraph

15 because I think, unless you can indicate otherwise, I think that contains

16 the rationale for the decision, and the rationale for the decision seems

17 to be that it won't do any harm. I mean it's a negative rationale. It

18 doesn't give a positive basis for allowing prosecution material to be

19 admitted during the Defence case.

20 MR. NICE: Your Honour, I'm not sure but perhaps we better find

21 out a little bit more about the allegations which in the time since

22 yesterday I haven't done. But I'm not sure that's the rationale, because

23 it says, "The appellant has not demonstrated that they erred by admitting

24 the photographs contained in the publication which would afford the

25 Prosecution the opportunity to rebut the allegations made by the appellant

Page 36007

1 during his cross-examination." So that in principle, the documents are

2 there to rebut allegations made and that is parallel to the purpose for

3 which I wish to put, for example, some of the newspaper articles to this

4 witness when he speaks in the terms he does of the overall purpose of the

5 meetings in April 1987 and the participation in them by the accused.

6 JUDGE BONOMY: But that, though, it constitutes an innovation on

7 ordinary adversarial procedure. I don't see this at the moment as an

8 issue over the admissibility of hearsay. That doesn't seem to me to be

9 the problem. The problem is to do with the order in which the case is

10 said in the Rules to be presented. And indeed am I not right in thinking

11 that so far as the Prosecution case is concerned, this material would have

12 had to be disclosed at an earlier stage, whereas because it comes in

13 somehow or other in the course of cross-examination you are exempt from

14 the rules that would otherwise apply to you in presenting your

15 case-in-chief.

16 MR. NICE: As to disclosure, I think the position with the

17 material -- well, the material subject to our application to have exhibits

18 produced, is similar to that in the Rwanda Tribunal but different in part.

19 As to the newspaper articles, and I'll find out in due course when

20 we first had them available to us, unless they contained Rule 68 -- a Rule

21 68 element, then they would not have been material we would have been any

22 duty to disclose.

23 Would Your Honour just give me one minute.

24 Ms. Dicklich confirms that which I thought, and that is that the

25 newspaper articles, so far as I'm aware, and it's difficult to say this

Page 36008












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13 English transcripts.













Page 36009

1 with absolute confidence given the holdings of material we do have here,

2 that they had not been in our possession until very recently, probably in

3 the course of the time the witness was giving evidence, because it became

4 obvious to us that it might be relevant at that stage.

5 Different considerations of course apply in relation to The Death

6 of Yugoslavia because that material was made available to the accused in

7 various forms, I think, right at the beginning of the trial and has been

8 supplemented to some degree by being provided with the full interview,

9 records of the various contributors, or some of the contributors in any

10 event, since then. But -- so whether there was a duty of disclosure in

11 respect of The Death of Yugoslavia tape in whole or part, it's in fact

12 been available and, once more, it's a sort of publicly available document.

13 As to the newspaper articles that we looked at yesterday, they

14 fall broadly within the same category of documents dealt with here in the

15 ICTR case save for the fact that we didn't actually have them until very

16 recently.

17 JUDGE BONOMY: But I'm making a broader point, Mr. Nice, rather

18 than one confined to the particular facts of this case.

19 MR. NICE: Yes.

20 JUDGE BONOMY: In the ordinary course under Rule 65 bis there is a

21 scheme for intimation of witnesses and exhibits, and in the course of

22 preparing your Prosecution case, you would normally have to submit a list

23 of all the exhibits you'll be using in the Prosecution case, and somehow

24 or other this case that you're referring to from Rwanda gets the

25 Prosecution round all that because they happen to be introducing the

Page 36010

1 material in the course of cross-examination.

2 Now, you may then justify the late introduction on various

3 grounds. I follow that and that's a point you've just mind, but they're

4 not dealing with that. They're saying as a matter of principle it doesn't

5 matter when you find the stuff you can put it in, and that's what I find

6 rather odd.

7 MR. NICE: Not seeking to raise an argument against myself, we can

8 put it in subject, of course, to the proper exercise of discretion by the

9 Court to exclude it. But the decision of the Appeals Chamber, it may be,

10 reflects an understanding of the realities of trials like this which are

11 subject to this, it may be, defining characteristic that there is no

12 possibility for identifying a closed field of evidence relating to any of

13 these large cases, either at the beginning, the middle, or the end of the

14 case. And inevitably, more material comes to the Prosecution, becomes

15 available to the Prosecution -- when it comes to that, is probably

16 available daily to the Prosecution given the access that the Internet

17 provides to sources of information.

18 JUDGE ROBINSON: Is material that is put to a witness to

19 contradict him in cross-examination subject to the general rule of

20 disclosure?

21 MR. NICE: Well, Your Honour, not knowing in advance what a

22 Defence witness list is going to look like, there's no way it could be.

23 And in any event, as a matter of principle I don't believe -- I would

24 invite you to say it isn't subject to part of the regime. And of course,

25 even outside the complex cases we deal with here, back in an ordinary

Page 36011

1 domestic trial in an ordinary domestic jurisdiction, if a witness turns up

2 and says something that the prosecutor understands can be contradicted by

3 a new document to which he -- for which he searches as a result of what

4 the witness says, he can typically and without difficulty raise it in

5 cross-examination, because there's no way he can be criticised for doing

6 so.

7 If a Defence witness turns up and says something that he's

8 contradicted in an earlier statement and the Prosecutor finds the

9 statement, or if he says something that can be contradicted by and is

10 material and satisfies all the rules, and can be contradicted by rebuttal

11 evidence, then of course that can be done.

12 What we see in these trials is that small reality more easily

13 articulated by rules and regulations. What we see is that reality but

14 written on a very large scale, because these cases are very large and the

15 issues they raise are always --

16 JUDGE KWON: Mr. Nice, can I turn to another aspect? As far as

17 the news article is concerned, the issue we have at this moment is whether

18 to admit a newspaper article written by a third party or interview of a

19 third party which the witness did not accept and which was not dealt with

20 with the witness in the examination-in-chief. The appeals case, two cases

21 we have, we've been just provided, is dealing with some other -- the case

22 is a bit different.

23 Take the ICTR decision. I draw your attention to paragraph 289.

24 It's a news article regarding Mr. Robert Kajuga. But that was dealt with

25 in examination-in-chief.

Page 36012

1 MR. NICE: Certainly, yes.

2 JUDGE KWON: But we don't have this kind of case. In Brdjanin the

3 case was about the accused or the witness himself.

4 MR. NICE: Your Honour, may I respectfully differ from the one --

5 from the characterisation of the evidence here.

6 THE INTERPRETER: Microphone, please.

7 JUDGE KWON: Microphone.

8 MR. NICE: Because the -- I'll just find my copy of it. Because

9 the issues that the newspaper -- thank you very much. The issues that the

10 newspapers cover are indeed issues that this witness had explored -- had

11 explored through him by his evidence in chief, because I used earlier this

12 morning and yesterday the motion of broadening of a case without any

13 complaint about the accused, and what's happened here is it may be an

14 example of something that's going to happen recurringly.

15 The -- we opened the case in respect of this meeting shortly, and

16 although I haven't got the words immediately in front of me, I can recall

17 them and we can find them from the opening note. It was suggested by me

18 in opening that this encounter where the words "You will not be beaten"

19 were used was an event that either reflected or created or stimulated the

20 accused's interest in the pursuit of power. I'll get the exact words

21 shortly.

22 We approached the meeting on that basis without going into a great

23 deal more detail about it, but we identified this as a very important

24 date, and a date of course to which we will be taking the Chamber in due

25 course when seeking to establish and identify the accused's state of mind

Page 36013

1 both at the time of the commission of the crimes as alleged, a state of

2 mind that will be built on or fed by or explained by the state of mind

3 that he has on his rise -- or had on his rise to power.

4 The accused witness takes the same event that we've characterised

5 in the alternative way that we did and presents it in a different way, in

6 an entirely favourable light for the accused.

7 We then have from Solevic, a man with whom the witness was

8 undoubtedly -- with whom he was undoubtedly connected in some ways at the

9 time. We've heard his evidence on that. We've had first the account of

10 the 1985 meeting. Well, the witness knew nothing of that. We then on

11 the first article had an account of the visits to Kosovo Polje, which the

12 witness broadly accepted, I think, and before we come to the second

13 article, we have the analysis by Milosevic of being an instrument of the

14 accused's power.

15 Well, now, that does fit with the very way we've put our case and

16 is contrary to the very much more favourable way these events were

17 described by the witness. And coming back to the first part of the

18 article, the reference to the meeting in 1985 that Solevic said was

19 refused him, that again feeds, supports the interpretation of events that

20 may be made of the meeting in April in 1987; was this an awakening of an

21 interest or stimulation of an interest rather than feeding on an earlier

22 interest.

23 When we come to the second article, the article of the 10th of

24 February -- time may be a problem.

25 JUDGE ROBINSON: I was wondering whether we would endeavour to

Page 36014

1 finish now, but I think perhaps it would be better take the break, unless

2 -- Mr. Kay, how long would you be?

3 MR. KAY: I can see it being at least -- I can see it being at

4 least half an hour.

5 JUDGE ROBINSON: Well, we'll take the break then.

6 JUDGE BONOMY: I also want to get the facts of the case and we

7 need to break for that purpose.

8 MR. KAY: I can help you with Rutaganda. The photographs were

9 some of which the accused were in. The articles of the RTLM radio

10 station, the accused had invested in RTLM, he was an investor, put money

11 in. And the newspaper clip comments by Robert Kajuga, he was the chairman

12 of the Interahamwe, the accused had said when giving evidence that Kajuga

13 had never said anything discriminatory, and so it was to counterpoise what

14 he had said then in chief.

15 JUDGE BONOMY: You would suggest these are all different from

16 showing clips of other people that might have been witnesses here

17 expressing what they think happened at the time.

18 MR. KAY: We heard what Judge Kwon said and what Your Honour, I

19 think, has already said about the connectivity of this material, if I can

20 put it that way.

21 JUDGE ROBINSON: Mr. Milosevic, yes.

22 THE ACCUSED: [Interpretation] Mr. Robinson, wouldn't it be far

23 more logical, in the interest of the truth, if all of this is that

24 important to call Mr. Solevic as a witness? You're going to spend more

25 time here to prove what happened in Rwanda, as Mr. Kay was explaining now

Page 36015

1 and Mr. Nice explained for almost an hour here, rather than having

2 Mr. Solevic testify. There is no logic in this. It goes against common

3 sense.

4 [Trial Chamber confers]

5 JUDGE ROBINSON: Mr. Milosevic, authorities have been cited. It's

6 an important legal issue. We have to consider them. But I remind you

7 that you may -- we will excuse you if you do not wish to return after the

8 20-minute break, which we will now take.

9 We're adjourned for 20 minutes.

10 --- Recess taken at 12.30 p.m.

11 --- On resuming at 12.57 p.m.

12 JUDGE ROBINSON: Yes, Mr. Nice, to conclude.

13 MR. NICE: Can I conclude what I have to say about the article and

14 then return to the additional material we've got in answer to His Honour

15 Judge Bonomy's request. That perhaps will be the most orderly way of

16 dealing with things.

17 The second article of the 10th of February, we only looked at a

18 couple of passages of it, mostly for want of time, but the passages we

19 looked at shows two things: Solevic making it quite clear that the

20 rallies in Novi Sad and, by inference, subsequent ones started and brought

21 down the leaderships of Vojvodina and Montenegro and were planned to bring

22 down the leadership in Bosnia until they were stopped by the accused.

23 That is, of course, contrary, absolutely contrary to some of the very

24 recent evidence today of the witness.

25 The following passage that's been translated dealt with the

Page 36016

1 circumstances in which the group of which in one way or another and to

2 whatever extent the Chamber may decide the witness was aware broke up and,

3 as is described here, was brought to an end by the accused.

4 The passages on The Death of Yugoslavia tape include passages that

5 the witness effectively adopts because they were put in not on a selective

6 basis, the whole passage in that video recording was covered subject to

7 removal of editorial comment, so that he was able to adopt and make a

8 point for re-examination by the accused out of Stambolic saying that

9 Stambolic sent the accused to Kosovo, but of course he disagrees with what

10 Solevic was saying about the use of stones and matters of that sort.

11 With those summaries in mind, the only additional material on fact

12 that we've been able to obtain about the facts in the Rutaganda case and

13 to which in particular paragraph 288, the AFP clipping, relates - and I've

14 told what I've learnt to Mr. Kay and he with knowledge of the case because

15 he was, I think, in Rwanda at the time and therefore has some knowledge of

16 it, was able to explain his understanding of it, which I think makes

17 complete sense.

18 What we learn is that the statements ascribed to Kajuga in the

19 article relate to the Interahamwe's support of the civil defence in the

20 fight against RPF, the killing of RPF infiltrators as well as innocent

21 civilians at roadblocks and incidents with the Red Cross and its

22 ambulances. And so putting that together with what we find in paragraph

23 289, it would appear that the appellant testified that Kajuga never said

24 anything discriminatory, that the AFP clipping revealed Kajuga saying

25 things that, although it doesn't absolutely appear from the summary I

Page 36017












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13 English transcripts.













Page 36018

1 have, were capable of being interpreted as discriminatory.

2 And, Your Honours, in our respectful submission, what you have

3 here is, of course, not exactly parallel because it's an entirely

4 different issue, but of similar validity.

5 I can tell you, incidentally, exactly how I opened this part of

6 the case because it was -- What I said of this was that the incident -- I

7 said this: "To what extent if any that incident --" That's the

8 you-will-not-be-beaten incident. "To what extent if any that incident was

9 stimulated and planned matters little. It was that phrase, 'You will not

10 be beaten' and the response to others to it that gave this accused the

11 taste or a better taste of power, maybe the first realisation of a dream.

12 It gave him an opening."

13 And so it was clear the Prosecution's case was that whether he

14 already had ambition and a taste for power, this added to it.

15 Alternatively, it was a first taste, and it gave him an opening. And

16 that's within the overall thesis of the Prosecution, that this accused's

17 driving force was never other than his own pursuit of and retention of

18 power, not backed by a philosophy or other ideology.

19 Now, with that in mind, when the witness gave the account he did

20 of how it all happened and how there could be no question of the accused

21 reflecting a nationalism in any way, the matters said by Solevic in the

22 newspaper articles and by Solevic and to some extent others on the video

23 clip become admissible because they are relevant and they have some

24 probative value, and there is no ground for there being excluded, in our

25 respectful submission.

Page 36019

1 They come before you without these witnesses having been summoned

2 to be part of the Prosecution's case, a point that I think His Honour

3 Judge Kwon had in mind at one stage, for a range of reasons but

4 principally because the way we presented the case, and at that stage it

5 wasn't necessary or essential to go beyond the way that I had summarised

6 it, and it is the accused who has responded to that in the way that he

7 has. I repeat yet again: No complaints of that.

8 But in light of the way we presented it in a case where there was

9 always going to be severe limitations on the number of witnesses we

10 called, the particular people here identified were either dead, as in the

11 case of Stambolic, there's another man called Pavlovic, the man who was

12 dismissed by the Communist Party following this meeting and figures

13 significantly. The television director, he's also dead. Of those who are

14 alive, we made applications for Vllasi, and I must correct the explanation

15 I gave yesterday because my memory of the history was wrong, but in the

16 event it turned out not to be possible even to apply to call him for want

17 of time in reality. And the other one is potentially Solevic, but there

18 is very little reason to think that he would have been available to us at

19 that stage of the case even if he might be now.

20 JUDGE BONOMY: Mr. Nice, can you tell me what the difference in

21 principle is between asking for a document or a video to be presented at

22 this stage as part of your case and asking to interpose a witness,

23 Solevic, for example, at this stage? What is the difference in principle?

24 MR. NICE: I think the difference in principle, or is it the

25 difference in effect? And I'm not avoiding Your Honour's question. The

Page 36020

1 difference in principle is that at this stage, the material - query

2 whether it becomes evidence - the material serves a purpose of putting the

3 finder of fact on notice that such material exists and possibly, depending

4 on all the other circumstances, giving it some weight.

5 So, for example, to go back to the domestic trial, the small

6 domestic trial, the Defence witness comes and gives evidence, the

7 prosecutor discovers late that there is a statement, whether in a

8 newspaper or some other way, having some indicia of reliability, he puts

9 the statement to the witness and the witness hedges his bets and says

10 something about adopting the statement but doesn't adopt it in full. The

11 statement may in those circumstances have some real weight.

12 Alternatively, the witness denies the statement completely. At

13 that stage, it may be that the material would have no weight until and

14 unless it is formally proved at a rebuttal stage in the case.

15 So that my analysis would be first that it's -- I can see why Your

16 Honour asks the question, but there is a difference, I think, in principle

17 because if I put it in as part of my case, it would go in straight away

18 for the truth of its content, however -- however great or small that might

19 be. So that if, for example, the witness concerned today, supposing we

20 wanted to put in something of what the -- of what Mr. Stambolic says, for

21 example, and we know, of course, his book's already gone in in parts with

22 other witnesses, but we want to put in something with Mr. Stambolic. We

23 apply to do it in chief in our case, we get leave to put it in, it becomes

24 evidence straight away. We put it in in cross-examination for a

25 particular purpose, depending on the reaction of the witness to it,

Page 36021

1 depending on what the Chamber thinks about it, it either becomes

2 immediately some evidence of the truth or it becomes notice that there may

3 be further evidence to come.

4 JUDGE BONOMY: That I think is a particularly good example. You

5 got lucky because the witness died. He would never think of offering him

6 as your bit of cross-examination material, but you've got his statement

7 because he's dead, so you offer it. You see, all you would be able to do

8 in respect of a witness is say, "Well, I have information" - you don't

9 necessarily need to say from where - put it to the witness, and if he

10 agrees with it you've got it as part of your case because he's accepted

11 it. If he disagrees with it there's no way you can deal with it unless

12 the rules allow you to bring along this witness at some other stage in the

13 case, for rebuttal or whatever. Now why in principle is it different if

14 you've got a document rather than a witness? Because all these documents

15 are doing is telling you what the witness has said. They're basically --

16 they're basically witness statements.

17 MR. NICE: Your Honour, they are indeed similar to witness

18 statements. They have one different character, namely, that they've been

19 available publicly for some period of time, but that apart, no, they're

20 very similar. But they nevertheless exist as things, whereas witness

21 statements, generally speaking, are not admitted. I mean, I could put one

22 in or I could seek to put one in but you probably wouldn't be very

23 interested in looking at it.

24 JUDGE BONOMY: All right. Thank you.

25 MR. NICE: But they are here. Now, this actually brings us --

Page 36022

1 something else I was going to raise -- to a real stark reality and problem

2 of this case, and probably all these cases. Witnesses such as the last

3 witness may be witnesses who are never going to change from a position

4 that they adopt. They may always be very black and white witnesses. It

5 may happen on both sides. We had an example of this with early Albanian

6 witnesses, I think, who the Chamber may remember denied the existence of

7 KLA in their villages, matters of that sort, for some time.

8 Now, the Chamber may want to ask itself this question: If the

9 evidence of this witness, expanding or developing the accused's case as

10 the accused is entitled to do, was simply challenged by me with the

11 substance of all these newspaper articles and I simply put propositions to

12 the witness, as sure as can be he would say no to all of them. We know

13 that. That's the reality of this type of trial.

14 You wouldn't understand why I was making those assertions. You

15 wouldn't have seen the material. You wouldn't know that it puts you on

16 notice that his answers may be wrong, that his credibility may really be

17 an issue. But once I present you with either, A, Solevic saying in terms

18 that things are different from the way the witness describes them, or

19 newspapers articles of people speaking saying that things are different

20 from the way the witness describes them, is not the Chamber better

21 informed and better able to start the process of assessing the credibility

22 of the witness and the underlying facts? And of course is not the Chamber

23 far better equipped to know whether at the stage of application for

24 rebuttal evidence, which it can foresee coming, and/or when it decides

25 whether to call any witnesses itself, how to exercise its various

Page 36023

1 discretions.

2 And that then brings me to this general point: The desire to fit

3 these trials into tight rules is understandable but may not be realistic.

4 These are cases where the maximum of material, in our respectful

5 submission, is likely to lead to the best conclusion. And it's

6 interesting to note that the accused - and it's his trial, it's not Mr.

7 Kay's trial - never seeks to exclude material. He's always happy to deal

8 with it. And today isn't the only example. There have been other such

9 examples. He's happy to deal with it. He doesn't object.

10 JUDGE KWON: So you are not opposed to the accused bringing in

11 hundreds of thousands of pages in favour of his case.

12 MR. NICE: I didn't say that, Your Honour, and I would be for

13 several reasons and it would depend on the documents. But we were

14 actually by no means particularly vigorous in our opposition to documents

15 he sought to produce. Some we did, but not particularly. We raised the

16 issue and left it to the Chamber to decide but we were not particularly

17 difficult about that. And for reasons I've already given. There may be

18 reasons for imposing a different test on the first stage of the trial from

19 that where a Defence is bound to be forthcoming from the second where a

20 rebuttal case is only a possibility. But we have -- I was also

21 interested, if I may say so, perhaps I --

22 JUDGE ROBINSON: Mr. Nice, bear in mind Mr. Kay has about 30

23 minutes, and the accused as well.

24 MR. NICE: Certainly. Last point, then. The need for a full

25 exploration of materials in line with what I suspect civil systems might

Page 36024

1 do was perhaps revealed by His Honour Judge Robinson's question to me this

2 morning: Was I suggesting that there may have been planning between the

3 first and second meetings which could have led to violence. Well, now, if

4 in the ordinary process of asking questions I have not yet sufficiently

5 described the Prosecution's view of the culture and society with which

6 you're dealing so that that wouldn't have been clear, then either I've

7 failed or the system fails, for of course we will be advancing that the

8 culture in which this meeting occurred and the culture in which this

9 accused rose to power was one in which people could be injured by stones,

10 much, much worse, we may ultimately discover, could be contemplated and

11 effected. And a narrow application of admissibility rules is going to run

12 the real risk of the Chamber misunderstanding. A broad approach

13 recognising that matters can be dealt with in judgement by exclusion and

14 by limiting the effect of material that isn't otherwise supported will

15 safeguard the fairness of the trial without allowing the Chamber the risk

16 of simply misunderstanding the history. So this material, in our

17 respectful submission, informs the Chamber about this witness and about

18 the surrounding circumstances and should be admitted.

19 JUDGE ROBINSON: Thank you. Mr. Kay, yes.

20 MR. KAY: The issue we're dealing with here concerns the use of

21 material in cross-examination, not to prevent it being used in

22 cross-examination but its status, having been used, whether it goes on to

23 become an exhibit in the case. That is the issue that we're dealing with

24 here, and there is a great distinction between the presentation of

25 material in cross-examination and then its introduction, having gone

Page 36025

1 through a series of questions with a witness, that makes it become an

2 exhibit in the case.

3 We've made a series of objections over the last few months over

4 the use of material by the Prosecution because it's been our position that

5 documents are being presented in a routine and wholesale way as a matter

6 of practice and technique that do not derive themselves from the

7 Prosecution exhibits or the Court exhibits or Defence exhibits but are new

8 materials which the Prosecution is seeking to introduce as further

9 exhibits in the case in support of their case regardless as to whether the

10 witness, who is supposedly the instrument by which they're being

11 introduced into evidence, regardless of whether he adopts them or not. So

12 the Trial Chamber is faced with these pieces of paper moving across the

13 courtroom not being adopted and not having any status. It is not even an

14 issue of hearsay, in my submission.

15 JUDGE ROBINSON: Mr. Kay, in the cases cited by Mr. Nice, was

16 there any discussion of the question of the adoption by the witness of the

17 statements?

18 MR. KAY: No. These cases have all concerned, in fact largely,

19 other than the one point concerning the Kajuga statements, these cases

20 have concerned issues concerning the accused himself. In Rutaganda, he

21 was in some of the photographs. Some of the photographs had the taxis

22 which the Interahamwe went around Rwanda within to demonstrate a

23 particular point. The articles of the RTLM radio station, he'd been an

24 investor in that particular enterprise. So there was a connectivity

25 between him and the material. And the Kajuga issue arose as a result of

Page 36026












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13 English transcripts.













Page 36027

1 something he had said in his evidence in chief which obviously reflected

2 upon his state of mind and went directly to him, and it was an issue of

3 that accused's credibility.

4 The Talic case, again, was a newspaper interview allegedly given

5 by the accused making certain assertions that the Prosecution wanted to

6 introduce. The Defence produced a very technical attempt, I think

7 something more prone to use in American courts where the particular

8 advocate came from, over the authenticity of that and that it hadn't been

9 proven by the Prosecution because it wasn't accepted by them. In a lot of

10 jurisdictions, that could have been introduced as a previous inconsistent

11 statement to impeach the witness and go to his credibility. And one can

12 see, in fact, no objection to the technique sought to be used by such a

13 statement.

14 We're not -- sorry, My Lord.

15 JUDGE BONOMY: Sorry to interrupt but to keep the flow, Mr. Kay,

16 can you say whether, or tell me from your recollection, whether in

17 Rutaganda it could be argued that the material or any of the material

18 might have been used by the Prosecution in support of their case without

19 somehow or other being acknowledged by the witness or accepted to some

20 extent, whether any of it was freestanding, in other words, like all the

21 material in the present case?

22 MR. KAY: This material, the Appeals Chamber didn't think much of

23 it one reads from the ultimate decision, so I don't think they put much

24 weight to the particular document. So we don't have a greater amount of

25 information. But I think it arose because of an attack on the accused's

Page 36028

1 own credibility and his state of mind. And he was charged with genocide.

2 The particular allegations were that he had been instigating the genocide

3 and he had been driving others to commit the acts during the hundred days

4 of the conflict in Rwanda, and it was how he gave his evidence. That's

5 really what the issue was -- was looking at, and he had made statements

6 about Kajuga which the Prosecution obviously wanted to attack to show his

7 own state of mind. So it was very particular, in my submission, to the

8 accused.

9 JUDGE BONOMY: I can look at the Trial Chamber judgement, I take

10 it, and find the basic factual position, so please don't spend time on it

11 if it's not something that's absolutely clear in your mind.

12 MR. KAY: No, it's not that, but I just echo that state of mind

13 issue is how I read it.

14 We're here, of course, dealing with something entirely different.

15 And it's not just three documents in Rutaganda or one document in Talic.

16 It is a wholesale process and an advocate's technique in developing their

17 case through what we would describe as the back door, and this is what we

18 have been alert to in the last few months and why we have been making our

19 objections on a regular basis, and I think why the Trial Chamber may now

20 be considering the issue as a whole, because what happens is if the

21 witness adopts some of the fact, a pretty minor fact it maybe, that there

22 were 150.000 people at a demonstration, the whole article appears to be

23 going in in evidence, with all its comment, all its point of views, and

24 all its statements, when it's not formed any part of the material from

25 that witness. And the technique that's being used here is a continuing

Page 36029

1 development of the Prosecution case on matters that were not raised in

2 their own case through their own witnesses, thereby giving the accused an

3 opportunity to challenge and cross-examine.

4 If one is dealing with only a few documents in the course of a

5 trial we don't really have any particular problem and we go -- the Judges

6 are very easily able to deal with the issue of weight and how important

7 and significant that material is, but we're getting to a stage here where

8 in any judgement of this Trial Chamber there are masses of potentially

9 amounts of documents being put in by the Prosecution that you're going to

10 have to deal with and say, "Well, we don't attribute much weight to that

11 because of this, because of that."

12 JUDGE ROBINSON: If the 150.000 number was the only item that the

13 witness adopted, you would then say that would not be a sufficient basis

14 to have the document put in?

15 MR. KAY: Absolutely. It because completely irrelevant and

16 nugatory. There is no point in having that, just getting the witness to

17 confirm a fact - Gazimestan was on a particular date - and the document

18 goes in, but not --

19 JUDGE ROBINSON: Notwithstanding that the Trial Chamber, if it

20 were exhibited, could attach what weight it wished to such a document?

21 MR. KAY: Why do you -- why do you need it? Because it's in

22 evidence from his mouth that that was the figure. The document isn't

23 needed. And when we're talking about widening this case, this is

24 happening through these documents at a pretty alarming rate. And I think

25 if the Trial Chamber permits this technique, you're going to see, as in

Page 36030

1 the 89(F) issue that we had during the Prosecution phase of the case,

2 wholesale material coming in that you're going to have to deal with.

3 So it's an important issue of principle here for the future

4 running of the trial. Any decision made now may give an opportunity for

5 the Prosecution to run with the baton and run wholesale with its evidence

6 through the Defence phase of the case.

7 JUDGE ROBINSON: Is there any question of unfairness?

8 MR. KAY: Absolutely.

9 JUDGE ROBINSON: How does that arise?

10 MR. KAY: We've got it with Solevic. The accused is saying, well,

11 call him let's hear what he has to say. No one is able to question him

12 here. We see edited clips from a TV programme which turns out is carrying

13 a very misleading translation --

14 JUDGE ROBINSON: The Appeals Chamber confronted that issue in one

15 of the cases cited and --

16 MR. KAY: With respect, the Appeals Chamber was dealing with it on

17 a very limited basis of three documents in Rutaganda. They weren't

18 dealing with the matters of principle.

19 If I could refer the Court to a transcript we've obtained from the

20 Hadzihasanovic trial, 29th of November, because this is a -- it seems to

21 us, certainly from the Defence bar at this Tribunal, this is an ongoing

22 policy this Court is being faced with in relation to what is going on

23 here. There's another trial that has experienced this as a problem, and

24 that Trial Chamber had to deal with it. We've been able to get the

25 transcript out this morning, and if I can just put copies before Your

Page 36031

1 Honours now. The Prosecution have been given one earlier. It's Judge

2 Antonetti in the Hadzihasanovic trial, transcript page 12521 to 28.

3 Looking at the first page, the Defence counsel made an oral motion

4 on new documents being used in the course of cross-examination after the

5 presentation of the Prosecution case. And the Trial Chamber requested

6 information on the source of the documents, where they were obtained, and

7 the circumstances by which they came by them.

8 Second page, "The reason for this debate between the parties is

9 that the Prosecution produced documents they hadn't requested to be

10 tendered into evidence when presenting their case, and they did so in the

11 course of examining witnesses for the Defence."

12 The Prosecution said that they had provided the documents in

13 support of the allegations in the indictment, and it was as a result of

14 certain Defence issues.

15 The foot of page 2, the Judge refers to Kupreskic. "The Defence

16 responded that the Prosecution had the burden of proof and that it should

17 not produce new documents in order to protect itself in the light of

18 arguments presented by the Defence."

19 And they say that the rules governing cross-examination don't

20 really deal with the details of it.

21 The Court goes through disclosure under Rule 65 ter (iii), which

22 Judge Bonomy has referred to this morning, the issue of rebuttal that has

23 also been referred to, and credibility.

24 The issue that the Court deals with then on page 3 is that,

25 firstly, one is exempt from this Rule if the Prosecution believes that the

Page 36032

1 credibility of a witness could be brought into question; and secondly, the

2 second exception concerns cases where the Prosecution wants to present a

3 document in order to refresh a witness's memory.

4 We're dealing here with presentation, not admission as exhibits,

5 which is a different issue.

6 The Court went on at line 14 on page 3 to say: "The Trial Chamber

7 would like to indicate that there is a principle which is fundamental and

8 which must be respected by the Prosecution, and that is that the

9 Prosecution must present all its evidence in the course of its case." And

10 they cite Kunarac, which we have here, where that principle is affirmed

11 that the moment for dealing with the Prosecution case producing evidence

12 is largely during their phase when they are proving the indictment.

13 The next case -- the next page: "As a result of this principle,

14 the Prosecution can only present in the course of its cross-examination of

15 a witness new documents that have not been admitted -- it may present new

16 documents only if it wants to reinforce evidence that it has presented

17 already or if it wants to introduce new elements that concern the criminal

18 responsibility of the accused."

19 JUDGE BONOMY: These rather open the door, do they not?

20 MR. KAY: Well, I think one has to go through further to see where

21 they -- where they end up.

22 If we go to the foot of that page, at line 22: "The Prosecution

23 may make such request in the rebuttal stage, and pursuant to Rule

24 85(A)(iii)..." and we know that in accordance with the manner for

25 tendering documents into evidence as it comes about from the Celebici

Page 36033

1 judgement. Secondly, it may request that a case be reopened if it wants

2 to deal with new evidence. Again, Celebici.

3 The Trial Chamber points out that the Rule concerning

4 cross-examination is limited to the various points that are stated within

5 the Rule and then goes on to say, "The scope of cross-examination of a

6 witness by the Prosecution -" I'm at line 19 - "is thus limited to the

7 points referred to in 90(H) of the Rules. In the course of such

8 cross-examination, the Prosecution may naturally confront the witness or

9 may present to the witness any documents that have already been admitted

10 into evidence." No issue there.

11 "The Prosecution may present and request certain documents to be

12 tendered into evidence, if these documents have not already been admitted

13 into evidence, in the course of cross-examination, but the conditions will

14 be much more restricted and will be governed by the principles that have

15 already been referred to.

16 "In the opinion of the Trial Chamber, the Prosecution may

17 present, in the course of its cross-examination, any documents that have

18 not already been admitted in order to test the credibility of a witness or

19 to refresh such a witness's memory."

20 It goes on to say: "... the Prosecution may present a document

21 not already admitted and which it has had in its possession before...

22 "The Trial Chamber is of the opinion that when the Prosecution

23 plans to present such a document in the course of its preparatory work,

24 they must disclose it," and they say within 24 hours.

25 Line 16: "The Prosecution may request the admission into evidence

Page 36034

1 of a document that it has disclosed provided that it is in order to

2 establish the credibility of a witness or to refresh a witness's memory.

3 And such document can only be admitted in a limited manner and can only be

4 used to establish credibility of the oral testimony of the witness or to

5 refresh the witness's memory."

6 This is a translation from French into English, and in my

7 submission, the issue of credibility there is the one of a previous

8 inconsistent statement of that witness where he has said something else

9 and that witness's own credibility is an issue.

10 If these newspaper articles had contained a statement from

11 Mr. Balevic in which he had said something inconsistent, then classically

12 that could go in and could be an exhibit as it was an issue concerning his

13 credibility. But what we're having here is the Prosecution attempting to

14 use the procedure to confront the credibility of the witness and establish

15 the credibility of someone else whom we haven't heard from and we don't

16 know whether in fact they accept or adopt that statement and whether it

17 was reported correctly.

18 He can be cross-examined on that line, but the material should not

19 go into evidence as an exhibit. That is a different status entirely.

20 JUDGE BONOMY: Mr. Kay, what if you do have the example of a prior

21 inconsistent statement but the witness denies making it? How do you deal

22 with that?

23 MR. KAY: Well, it is put to him, the circumstances have to be

24 dealt with properly as to when it was made, justified, and the evidence

25 goes in, the Prosecution in their rebuttal case may call the journalist or

Page 36035












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Page 36036

1 the party who received the statement to affirm it.

2 JUDGE BONOMY: It's still got to be established at some stage if

3 there is a dispute about its accuracy.

4 MR. KAY: We have had a significant change in the law in my home

5 jurisdiction this year and from the 2003 act on consistent -- inconsistent

6 statements out of court. Juries used to always be directed, well, it's

7 what the witness says in court that's more important than what they said

8 before. That rule is gone now and in fact the court takes -- the courts

9 have to direct juries in a much more sensible way; well, it's a matter for

10 you. That is capable of being evidence just as much as the evidence on

11 oath. So it's a matter that you must decide upon, having looked at the

12 overall demeanour, credibility of the witness, and the circumstances of

13 that statement.

14 JUDGE BONOMY: But presumably that is after a police officer who

15 took the statement has given evidence to confirm that that is in fact what

16 was said if you're faced with a denial by the witness of ever having said

17 what's in the statement.

18 MR. KAY: You can go down that route or you don't have to go down

19 that route, but I'm not saying that any material --

20 JUDGE BONOMY: It speaks for itself.

21 MR. KAY: -- that is an inconsistent statement is incapable of

22 being an exhibit. Given the rules -- if I can make it clear, my

23 submission is that any statement by the witness, consistent or

24 inconsistent, by the accused, consistent or inconsistent, a Defence

25 exhibit, Court exhibit, Prosecution Exhibit, is all capable of going in

Page 36037

1 and being put into evidence.

2 JUDGE ROBINSON: Paragraph 53 of the Appeals Chamber's decision in

3 Brdjanin and Talic, it says: "At the same time and contrary to the Trial

4 Chamber's apparent counterbalancing fear, admitting the article without

5 subpoenaing the appellant need not prejudice the accused. Defence may

6 still question the article's accuracy, and the Trial Chamber will have to

7 take account of the unavailability of the appellant in determining how

8 much weight to give the article."

9 MR. KAY: That accords with my submission that I've just made,

10 remembering that this was a statement of the accused and so obviously has

11 a relevance and probative value. But the issue we're dealing with, of

12 course, is statements of other people not on the same matter of principal.

13 So we're not attempting to exclude anything that would be material from

14 the witness or the defendant at all. We're not putting technical rules on

15 this. Our concern is statements made by other people out of court.

16 JUDGE BONOMY: Just finally, Mr. Kay, at the top of the fourth

17 page, which you did say might be made clear later, the Trial Chamber here

18 seemed to be recognising the consequence of what they describe as a

19 principle. The principle is the order in which the respective cases are

20 presented. But it says, "The Prosecution can only present in the course

21 of its cross-examination of a witness new documents that have not been

22 admitted only if it wants to reinforce evidence that it has presented

23 already or if it wants to introduce new elements that concern the criminal

24 responsibility of the accused."

25 Now, if that's right, that allows for a wide-ranging introduction

Page 36038

1 of documents in the course of a cross-examination of Defence witnesses.

2 MR. KAY: And it's the word "present," it's not "admitted." And

3 the Judge, as I said, in the later, next two pages, makes a distinction

4 between presenting, the test, and then admission.

5 And of course Mr. Nice can say, well, what about this, and he has

6 a statement from someone and cross-examine, but if it leads nowhere, it

7 shouldn't become an exhibit. He can -- as long as he's within Rule

8 90(H)(i) in the conduct of his cross-examination, which is the subject

9 matter of the evidence in chief, credibility, unable to give relevant

10 evidence --

11 JUDGE BONOMY: I think if you read earlier parts "present" means

12 become part of the evidence. If you read the previous page the use of the

13 verb "present" seems to imply that it's becoming evidence in the case.

14 And while I follow all the other propositions you've advanced, I find

15 difficulty with that passage at the top of the fourth page.

16 MR. KAY: Yes. I'm sorry, I can't help you any more.

17 JUDGE ROBINSON: I'd just like to point out, too, that to the

18 extent that it is a question of stage and phase, the rule in 85 is

19 residual in nature.

20 MR. KAY: Yes.

21 JUDGE ROBINSON: The rule as to the stages, unless otherwise

22 directed by the Trial Chamber --

23 MR. KAY: Yes.

24 JUDGE ROBINSON: -- in the interests of justice.

25 MR. KAY: Yes.

Page 36039

1 JUDGE ROBINSON: But let us see whether the accused has something

2 to say.

3 Mr. Milosevic.

4 THE ACCUSED: [Interpretation] Just very briefly, Mr. Robinson.

5 What Mr. Nice requested has nothing to do with this witness. Therefore,

6 to introduce evidence through a witness, documents that have nothing to do

7 with that witness, seem to me -- seems to me to be beyond all reason.

8 And secondly, in this sea of procedural arguments that have been

9 put forward and which are mostly based on some Rwanda experience, in this

10 specific case I think is -- has completely stepped -- forgotten a

11 notorious fact with respect to what Mr. Nice wishes to prove.

12 During the testimony of Mr. Balevic, during his

13 examination-in-chief, I showed you a document from the Federal Ministry of

14 the Interior, the commission that worked at the time in that far-off year

15 1987, from which you can see that the police used force against citizens

16 unjustifiably and not that it was the citizens which caused the police's

17 reaction. And this was established by the federal commission that was set

18 up. So doesn't it seem to you to be absurd for Mr. Nice to try and prove

19 here that this was something that was organised in advance, for me

20 allegedly to have to intervene? Then I would have had to organise this

21 among the police ranks, which as you know at that time was mostly the

22 Albanian police at the time, that they should attack the citizens so that

23 the citizens should flee and that everything should happen that ensued.

24 That is absurd.

25 Secondly, Solevic, in what I heard from these excerpts that were

Page 36040

1 shown, confirms that, precisely confirms that; that they were attacked and

2 that they fled and that they came to that pile of whatever it was that

3 they started throwing at them. So he explained that, and his statement,

4 therefore, is not contradictory to what Balevic said.

5 And then finally, I also told you that if that is so important,

6 then it would be logical to call Solevic to testify and explain what he

7 meant. We can't have these explanations coming from Mr. Nice. Mr. Nice

8 can't explain some events that took place in a completely different

9 context and mechanically to attach them and clip and paste them onto

10 something else. That is untenable.

11 And also I would like to draw your attention to one more point and

12 it is this: We're talking here about several levels of quality and weight

13 for some documents. I assume that an authentic footage of an event has --

14 carries weight in one form rather than post festum what somebody thought

15 about this, did, or anything else. So you can weigh up the weight of the

16 evidence. You had authentic footage here that was discussed by Mr. Nice

17 but any person of reason would be able to draw their own conclusions for

18 that. They don't need interpretations five or ten years later whether

19 something happened this way or that way. So I think there's a hierarchy

20 of levels of importance that are being presented. Otherwise, any material

21 evidence or authentic footage is material evidence and could be refuted by

22 somebody's statement later on, because somebody might say they didn't like

23 it, or that it was different, it happened in a different way. So I don't

24 think that is at all acceptable.

25 And finally, as you can see, it is I who take up least time here.

Page 36041

1 I don't take up a lot of your time, but you can check this out. Has this

2 binder with the exhibits been introduced into evidence, the documents I

3 put forward during the Balevic examination with the footage from the Aco

4 Marovic school and in front of the cultural centre, the speech at

5 Gazimestan, the stenogram of the meetings in the Aco Marovic centre or

6 hall, and many other documents. The report by the federal secretary for

7 internal affairs about the incident that took place. So you have a whole

8 pile of documents and exhibits which we attach to the testimony of this

9 witness and the witness confirmed them, and I'd like to tender them into

10 evidence and I'd like them to be introduced if they haven't been

11 introduced already.

12 JUDGE ROBINSON: We'll deal with that matter later, Mr. Milosevic.

13 We are beyond the time now for the adjournment. As I indicated earlier,

14 we are expecting a medical report this afternoon. The court Registrar

15 will intervene in that matter and we'll issue an order later in the day as

16 to the resumption of the trial.

17 Mr. Nice --

18 MR. NICE: Only to say that the first instance decision at the end

19 of the clip of documents we provided - we didn't have time to go into it -

20 but you may find it helpful, and I adopt many of the points made in the

21 document supplied by my learned friend Mr. Kay.

22 And nothing else. Except maybe this: The Chamber may, in looking

23 at the problem in the whole, because we may have to come back to it, be

24 assisted by contemplating the 65 ter summary for the witness that's just

25 gone and addressing or addressing the problems that face preparation for

Page 36042

1 witnesses for whom we have summaries of this kind at some stage. That's

2 all. Thank you.


4 MR. KAY: Kunarac decision that I referred to has been made

5 available. Shall we pass it through your clerk to you?

6 JUDGE ROBINSON: Yes. Yes. Thank you very much. We are

7 adjourned.

8 --- Whereupon the hearing adjourned sine die

9 at 1.48 p.m.