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?
1 MR. NICE: Not very much. I would hope to finish in the first
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
25 JUDGE ROBINSON: Have the witness brought in.
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]
6 WITNESS: MITAR BALEVIC [Resumed]
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
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.
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
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
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
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
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.
22 JUDGE ROBINSON: Yes.
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
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
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
5 Q. Thank you. If Ms. Dicklich could start the tape, please.
6 [Videotape played]
7 MR. NICE:
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
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
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
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
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
16 THE WITNESS: [Interpretation] No.
17 JUDGE KWON: Yes.
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 --
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]
6 MR. NICE:
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
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;
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?
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.
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
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
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.
6 MR. NICE:
7 Q. Just go back to the first passage. You saw what --
8 JUDGE KWON: Microphone.
9 MR. NICE:
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.
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
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
22 [Videotape played]
23 JUDGE ROBINSON: Just a minute.
24 [Trial Chamber confers]
25 MR. NICE: Was that bit translated?
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:
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
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.
20 JUDGE ROBINSON: Yes.
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.
1 JUDGE ROBINSON: Mr. Milosevic, you'll have a time to make
2 comments when you --
3 MR. NICE:
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.
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
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
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
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
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
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
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.
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
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;
25 A. That is absolutely untrue what you're just saying, Mr. Nice. I
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
8 Q. Very well. But those men did come. You certainly told us about
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
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
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,
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
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
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,
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
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
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
25 I spoke only about what I saw in Pristina, the people moving from
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
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
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.
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
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] ...
1 A. You only take examples --
2 JUDGE ROBINSON: Mr. Balevic, just answer the question.
3 MR. NICE:
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
25 A. I do not allow that possibility, because I know nothing of that.
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
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
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
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
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
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
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
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
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
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
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
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
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
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.
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.
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
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
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?
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
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.
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.
1 Mr. Robinson, may I be allowed to say something?
2 JUDGE ROBINSON: Yes.
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]
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
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.
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.
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.
8 JUDGE ROBINSON: Yes.
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
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
25 JUDGE KWON: And his examination will not complete by tomorrow.
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
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.
19 JUDGE ROBINSON: Mr. Kay.
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
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
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
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
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
1 with that in mind that the Brdjanin case summary at paragraph 4 will be of
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
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
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
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
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.
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
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
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
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
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
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
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
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.
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
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
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
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
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
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
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
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
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
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
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.
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
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
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
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
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
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
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
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
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
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.
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
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,
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 --
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
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
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
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
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
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
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
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
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
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
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
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
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
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
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
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
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
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
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
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.
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
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.
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
1 witnesses for whom we have summaries of this kind at some stage. That's
2 all. Thank you.
3 JUDGE ROBINSON: Mr. Kay.
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
8 --- Whereupon the hearing adjourned sine die
9 at 1.48 p.m.