Tribunal Criminal Tribunal for the Former Yugoslavia

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1 THE INTERNATIONAL CRIMINAL TRIBUNAL CASE NO. IT-94-1-T

2 FOR THE FORMER YUGOSLAVIA

3 IN THE TRIAL CHAMBER

4

5

6 Tuesday, 7th May 1996

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10

11

12 Before:

13

14 GABRIELLE KIRK McDONALD

15 (The Presiding Judge)

16 JUDGE STEPHEN

17 JUDGE VOHRAH

18

19

20

21

22 THE PROSECUTOR OF THE TRIBUNAL

23

24 -v-

25

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1 DUSKO TADIC

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3

4

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9

10 MR. GRANT NIEMANN, MISS BRENDA HOLLIS, MR. ALAN TIEGER and MR. MICHAEL

11 KEEGAN appeared on behalf of the Prosecution

12

13 MR. MICHAIL WLADIMIROFF, MR. ALPHONS ORIE, MR. STEVEN KAY and MISS SYLVIA

14 DE BERTODANO appeared on behalf of the Defence

15

16

17 ________________

18

19 (Open Session)

20

21

22 MRS. DE SAMPAYO: The Prosecutor against Dusko Tadic, case No. IT-94-1-T.

23 THE PRESIDING JUDGE: Thank you. May I first verify that the equipment is

24 working? Everyone in the courtroom who cannot understand me should have

25 their earphones on. Can everyone who is wearing earphones in the

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1 courtroom hear me in a language they understand? Mr. Tadic? Can you hear

2 me in a language you understand? Fine, thank you. May I have the

3 appearances for the Prosecutor, please?

4 MR. NIEMANN: If your Honours please, my name is Niemann and I appear with

5 my colleagues, Miss Hollis, Mr. Tieger and Mr. Keegan.

6 THE PRESIDING JUDGE: Thank you, Mr. Niemann. May I have the appearances

7 for the Defence, please?

8 MR. WLADIMIROFF: If your Honours please, my name is Michail Wladimiroff.

9 I am advocate at the Bar of the Supreme Court of the Netherlands and I am

10 counsel for the Defence. On my left side is Alphons Orie who is also an

11 advocate at the Bar of the Supreme Court of the Netherlands, co-counsel

12 for the Defence; on my right side, Steven Kay, barrister of the Bar of

13 England and Wales, co-counsel for the Defence and on my far left side is

14 Sylvia de Bertodano, also a barrister of the Bar of England and Wales

15 assisting the Defence.

16 THE PRESIDING JUDGE: Thank you. Before we have the opening statements I

17 need to discuss with you lawyers this morning various motions that we

18 considered at the pretrial conference on Friday. We need to announce our

19 rulings on those motions. The first motion is the Prosecutor's motion to

20 compel disclosure of statements of witnesses of the Defence. That motion

21 is denied.

22 The second motion is the Prosecutor's motion for protective

23 measures for witness P. That motion is granted.

24 The next motion is the Defence's motion for summons and for

25 protective measures. That has several parts to it. First, the request

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1 that the Trial Chamber summons witnesses will be granted. The request for

2 safe conduct is granted. The request for video conference testimony is

3 granted in part and denied in part. The request for confidentiality of

4 certain witnesses is granted in part and denied in part. The request for

5 anonymity of witnesses is denied.

6 As to each of those last parts of the motions, that is the

7 motion, the request for video conference, the request for confidentiality

8 and the request for anonymity, leave will be granted to the Defence to

9 supplement its declarations that you submitted in support of those motions

10 by May 31st.

11 The last motion that we discussed at the pretrial

12 conference was the motion of the Prosecutor to withdraw counts 2 through

13 4. I will address that in a moment. The final matter that we discussed

14 at the pretrial conference related to the request of the Prosecutor and

15 the request of the Defence that the Trial Chamber make a ruling, a

16 preliminary ruling, on various matters that you had addressed in your

17 pretrial briefs.

18 At the pretrial conference on Friday, we advised the

19 parties, at least in four areas, that we could give you some direction on

20 and it was our belief that giving you direction in those four areas was

21 sufficient. Let me just repeat what I told you then.

22 First, the Trial Chamber has determined that no

23 information that relates exclusively to the sentencing should be presented

24 by the witnesses during the trial as to guilt or innocence. We directed

25 you to Rule 100 of the Rules of Procedure and Evidence. What we are

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1 saying is that we understand the position of the Prosecutor and we

2 understand the position of the Defence. If you have, however, a witness

3 who testifies, a witness may testify as to guilt or innocence, but if the

4 witness's testimony is also solely directed towards matters that we should

5 consider as a part of sentencing, we consider that we should hear that

6 pursuant to the terms of Rule 100.

7 Was it Mr. Kay or was it Mr. Wladimiroff, no, I think it

8 was Mr. Orie, yes, who suggested, that is fine, we have made that ruling,

9 but how we will make that determination will be something else. You are

10 probably correct, Mr. Orie, but that is our ruling in that regard.

11 The second ruling had to do with a request of the

12 Prosecutor that the Trial Chamber make findings as to the guilt of the

13 accused with respect to a crime that was not specifically charged in the

14 indictment. The Trial Chamber declines to make such a ruling. We do not

15 consider that it is appropriate to find that the accused is guilty of a

16 crime that is not specifically charged as such in the indictment.

17 The third ruling related to the responsibility of the

18 parties to give evidence as to the character of the conflict. The Trial

19 Chamber does want to hear evidence as to the character of the conflict. I

20 think the Defence had taken the position that the Appeals Chamber had

21 found that the conflict was internal; the Prosecutor had taken the

22 position that the Appeals Chamber had found that

23 the conflict was international although, perhaps, there was some confusion

24 about that.

25 The Trial Chamber has determined that it does wish to hear testimony

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1 regarding the character of the conflict.

2 Finally, the Trial Chamber determined that it was

3 necessary to offer evidence, that it was necessary for the Prosecutor to

4 offer evidence, that the crimes charged in the indictment were committed

5 in the context of an armed conflict. We consider that that is a burden

6 that the Prosecutor must bear.

7 We then discussed -- I suppose we will discuss again --

8 the request of the Prosecutor, joined in by the Defence, that the Trial

9 Chamber make certain rulings regarding the elements of the offence. We

10 consider that the rulings that we have made thus far are sufficient to

11 give you direction as far as the eliciting of evidence is concerned. We

12 received again this morning the request of the Prosecutor and the Defence.

13 The Trial Chamber does not consider that it is

14 appropriate for us at this time to basically formulate an international

15 criminal code; instead, we think it is our responsibility to hear the

16 evidence and to interpret and apply the terms of the Statute of the

17 International Tribunal. So, that is as far as we will go with respect to

18 your request. We think that we have given you what is necessary to guide

19 you in the offering of evidence and that, I hope, ends that matter,

20 although I certainly understand your position.

21 Are there any other preliminary matters, other than the

22 Prosecutor's motion to withdraw counts 2 through 4, that we need to

23 discuss before I hear the readiness of the parties and the presentation of

24 the opening statements? Mr. Niemann?

25 MR. NIEMANN: Not from the Prosecution, your Honour.

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1 THE PRESIDING JUDGE: Mr. Wladimiroff?

2 MR. WLADIMIROFF: Not from the Defence, your Honour.

3 THE PRESIDING JUDGE: Very good. Thank you. Is the Prosecutor ready to

4 proceed to trial?

5 MR. NIEMANN: The Prosecution is ready, your Honour.

6 THE PRESIDING JUDGE: Fine. Is the Defence ready to proceed?

7 MR. WLADIMIROFF: So is the Defence, your Honour.

8 THE PRESIDING JUDGE: Thank you. Mr. Niemann, we had determined at the

9 pretrial conference on Friday that the Prosecutor would submit its motion

10 to withdraw counts 2 through 4 of the indictment before you presented your

11 opening statements. Are you ready to make that presentation?

12 MR. NIEMANN: Yes, your Honours. The Prosecution seeks to withdraw counts

13 2 through 4 of the indictment on a without prejudice basis. In all other

14 respects, your Honour, we rely upon the motion filed and the submissions

15 that I made at the pretrial conference on Friday.

16 THE PRESIDING JUDGE: Is there any objection from the Defence?

17 MR. WLADIMIROFF: Your Honours, we rely on the response we have given at

18 the pretrial conference and we refer to our position in that response.

19 THE PRESIDING JUDGE: Very good. We interpreted that as being no

20 objection to either the withdrawal or, perhaps, treatment of the motion as

21 an amendment without prejudice, although subject, as I recall, to your

22 opportunity to present at a later date, should the Prosecutor seek to

23 indict Mr. Tadic once again with respect to these charges, any defences

24 that you have at that time. Is that correct?

25 MR. WLADIMIROFF: That is correct, indeed, your Honour.

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1 THE PRESIDING JUDGE: Mr. Niemann, the Prosecutor has filed that motion

2 with the Registry prior to the commencement of trial. I understand from

3 the Registrar that it is more appropriate for that motion to be withdrawn

4 as having been filed prior to the commencement of trial and now

5 resubmitted now the trial has commenced.

6 So, we will consider that that motion has been withdrawn

7 from the Registry and resubmitted as a trial amendment, or as a motion to

8 withdraw under either Rules 50 or 51 of the Rules of Procedure and

9 Evidence. Is that the correct procedure? The Registrar will tell me? Is

10 that acceptable?

11 MRS. DE SAMPAYO: It seems acceptable to me, your Honour.

12 THE PRESIDING JUDGE: Thank you.

13 MR. NIEMANN: If your Honour pleases.

14 THE PRESIDING JUDGE: OK. The Trial Chamber then will consider the motion

15 to withdraw counts 2 through 4 as being submitted as an amendment to the

16 indictment pursuant to Rule 50 of the Rules of Procedure and Evidence,

17 that being simply a dropping of counts 2 through 4. There is no need to

18 postpone the trial.

19 Those counts, counts 2 through 4, charged the accused

20 with forcible sexual intercourse in violation of Articles 2(B), 3 and 5 of

21 the Statute of the International Tribunal and Article 3.1.3 of the Geneva

22 Convention of 1949. Is that correct, Mr. Niemann?

23 MR. WLADIMIROFF: Yes, your Honour.

24 THE PRESIDING JUDGE: Are those the counts that you wish to withdraw?

25 MR. NIEMANN: Yes, your Honour.

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1 THE PRESIDING JUDGE: Or, rather, I suppose we decided that we will treat

2 it as a trial amendment.

3 MR. NIEMANN: Amendment, your Honour.

4 THE PRESIDING JUDGE: Very good. That motion then will be granted.

5 Before hearing opening statements from the parties, the

6 Chamber thought that it was appropriate to make some very brief

7 introductory remarks to, at least, put this trial in context as we see it.

8 This is the beginning of the first trial before the

9 International Criminal Tribunal for the former Yugoslavia; an

10 International Tribunal specially created by the United Nations to try

11 persons charged with serious violations of international humanitarian law

12 in the former Yugoslavia.

13 As such an occasion, this has certain historic

14 dimensions. Nevertheless, we should all remember first and foremost that

15 this is a criminal trial of an accused who a little over one year ago

16 appeared before this Chamber and entered a plea of not guilty. Under any

17 system of justice, he is entitled to a fair trial and to ensure that he

18 receives one is our paramount purpose for being here.

19 The lawyers appearing on each side of this case come from

20 different legal systems, as do each of we three Judges, but we all agree

21 on one premise and that is that the rule of law must be upheld and that

22 fairness is a cornerstone of the process of affording justice. In

23 conducting the trial, the Judges will be guided by the Rules of Procedure

24 and Evidence that the Tribunal has adopted.

25 As you lawyers know, we have approximately 125 Rules of

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1 Procedure and Evidence, but we only have 10 rules of evidence that will

2 guide the conduct of the trial and the receipt of evidence, compared with

3 the dozens of often times hypertechnical

4 rules of other legal systems. We have no rule of hearsay, for example,

5 and Rule 89(C)

6 of our Rules of Procedure and Evidence provides that a Chamber may admit

7 any

8 relevant evidence which it deems to have probative value, and Rule 89(B)

9 of our Rules of Evidence requires that the Trial Chamber apply the rules

10 of evidence which will best favour a fair determination of the matter

11 before it and are consonant with the spirit of the Statute and the general

12 principles of law.

13 In this context, we, Judges, will be tryers of fact and

14 we will apply the law to our findings. The extensive pretrial discussions

15 that have taken place, the many pretrial motions that have been dealt

16 with, have all been aimed at ensuring that this first trial will be

17 conducted as fairly and as expeditiously as possible with justice being

18 both done and being seen to be done. Regardless of all of the apparent

19 trappings of today, that is our sole raison d'etre.

20 We will be working together on this trial, whether at the

21 Bench or at the Bar tables for many weeks. We encourage you to be at ease

22 to the extent that it is possible under all of these circumstances, and we

23 ask that counsel discharge their responsibilities in a professional

24 manner.

25 As we have previously indicated in an order that has been

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1 entered by the Trial Chamber, the trial will be conducted from 10 a.m.

2 until 1 p.m., and then 2.30 to 5.30 p.m. with a 15 minute break in the

3 morning and a 15 minute break in the afternoon. We plan to hear evidence

4 from Tuesday through Friday of every week except this month which has a

5 very, very different schedule for many reasons.

6 On Mondays, this courtroom (which is the only courtroom

7 that this Tribunal has) will be set aside for other matters to be

8 considered by the Trial Chamber and as well as the other Trial Chamber.

9 The Prosecution may proceed with its opening remarks. Mr.

10 Niemann?

11 MR. NIEMANN: If your Honour pleases. As your Honour has observed, the

12 opening of the first case before the Tribunal is an historic occasion but

13 it is also a solemn one. The duty of any criminal court is onerous, but

14 the duty imposed on this Tribunal is a heavy burden indeed. This Tribunal

15 has been created not only to administer justice in respect of the accused

16 that stands before you, but there is an expectation that in so doing you

17 will contribute to a lasting peace in the country that was once

18 Yugoslavia.

19 The human tragedy that has occurred in the former

20 Yugoslavia since 1991 is of major proportions. When dealing with

21 violations of international humanitarian law, we are not only looking to

22 the actions of individuals, but to the involvements of the authorities of

23 the state as well.

24 Through this trial we will embark upon an examination of

25 events of unspeakable horror. What man has done to man in the cause of

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1 nationalism, or ethnic hegemony in the former Yugoslavia, strains the most

2 agile of human reasoning.

3 The evidence of the Prosecution will prove beyond a

4 reasonable doubt that the accused Dusko Tadic committed the crimes with

5 which he has been charged, and that it was pursuant to a widespread or

6 systematic attack against the non-Serb population of the opstina Prijedor

7 in order to achieve the goal of the Serbian state, that it would remain as

8 part of what later became the Federal Republic of Yugoslavia.

9 When an individual commits a crime, the state stands as

10 the bastion of justice, but when the state commits the crime only the

11 community of nations can protect the individual, otherwise evil has no

12 boundary.

13 The witnesses that will come before you are often

14 bewildered and sometimes angry about the tragic and undeserved fate that

15 has befallen them. The absolute terror to which they have been subjected

16 in those black days of 1992 and the passage of time since then may have

17 had some effect on their ability to relate all the details of their

18 experiences, but their sincerity and their veracity regarding the crimes

19 they describe and the responsibility of the accused for those crimes are,

20 in our submission, beyond question.

21 While this trial is primarily concerned with what

22 occurred between the accused and the victims of his crimes, it is also

23 concerned with the tragic destruction of that once proud and beautiful

24 country of Yugoslavia. To have some understanding of the nature of the

25 conflict, to have some understanding of the people of Yugoslavia and their

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1 ethnic composition, to have some understanding of why one ethnic group

2 would want to so cruelly turn upon another with the intent of bringing

3 about their destruction, to have some understanding of the targeted

4 victims of these crimes, then it is necessary to have some understanding

5 of what was Yugoslavia.

6 To this end, we will bring evidence about Yugoslavia

7 itself. The evidence will show that the Socialist Federal Republic of

8 Yugoslavia consisted of six states: Bosnia Herzegovina; Croatia;

9 Macedonia; Montenegro; Serbia and Slovenia. The ethnic composition of the

10 Federation in descending order of population size were Serbians;

11 Croatians; Muslims; Slovenes; Macedonians; Albanians; Hungarians and

12 others. The major language is Serbo-Croat which is a single orthography

13 containing a Latin and Cyrillic script. The major religions are Roman

14 Catholicism; Eastern Orthodoxy and Islam.

15 If your Honours please, I will now display on the

16 monitors a map given the number 2-1 which, in due course, will be

17 tendered in the course of the evidence. If your Honours please, this map

18 when displayed -- I think it should come on the computer monitor -- will

19 show Yugoslavia in its entirety consisting of the six states of Macedonia,

20 Serbia, Montenegro Bosnia-Herzegovina, Croatia, Slovenia and the two

21 independent provinces of Vojvodina and Kosovo.

22 Your Honours, the bringing of Yugoslavia into a

23 federation of states was the realisation of a dream, but it also was an

24 uneasy attempt to embrace the complicated mixture of diverse peoples,

25 cultures, historic and religious traditions and geography. This diversity

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1 was especially prominent in Bosnia where Catholic, Orthodox and Muslim

2 populations co-existed until the country was enveloped by political

3 tension and armed hostilities in the early part of the 1990s. Sadly, this

4 tragic land has had a long history of bloody conflict which has, no doubt,

5 had some influence on the national outlook. Although the peoples of

6 Yugoslavia, especially Bosnia, are no different to any other peoples of

7 the world in merely wanting to live in peace, the history of bloodshed

8 inhibits their confidence in achieving and maintaining a peaceful nation

9 where ethnic harmony and security is assured.

10 The tension between the Yugoslav ideal of one people and

11 the ethnic divisions promoted by the nationalist interests of the various

12 republics waxed and waned throughout the 20th century. By 1974, the then

13 new constitution ensured that there would be a tight unifying control over

14 the various republics but that such control would be decentralised and

15 exercised at the republic level.

16 The investing of greater power in the respective

17 republics worked during the life of Tito, mainly because he was able to

18 exercise sufficient control over the various factions so as to stop them

19 from breaking apart. After Tito's death in 1980, things deteriorated

20 rapidly and the rotating presidency not only failed to work but actually

21 contributed to the final collapse of the Federation. The Serbian

22 perspective was nurtured by their folklore as victims throughout history,

23 including what happened to them during the Second World War at the hands

24 of the Nazi backed Ustasha, which was to be suspicious of and to try to

25 achieve hegemony over the other states of Yugoslavia.

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1 In 1990, there was held the first democratic elections in

2 the Republics since the Second World War. In Slovenia, the former

3 communists in coalition with the four opposition parties were elected. In

4 Croatia, the leader of the Croatian Democratic

5 Union, Franjo Tudjman, became the President. In Bosnia, the major

6 political parties

7 were constituted along nationalistic lines. The Muslim SDA or the Party

8 of Democratic Action gained about one-third of the seats in the Parliament

9 with the Serbian

10 Democratic Party (SDS) gaining 30 per cent; the Croatian Democratic Union

11 (HDZ) about 20 per cent and 13 per cent of the seats were taken by

12 non-nationalistic parties. Alija Izetbegovic, the SDA leader, was elected

13 by a seven member presidency as the President. In Serbia, Slobodan

14 Milosevic became the President of the Republic of

15 Serbia.

16 The results of these elections demonstrated a deep

17 division along ethnic lines. The fragile state of the Federal economy,

18 the growing forces of nationalism and the quest for independent

19 sovereignty of each of the republics with the possible

20 exception of Bosnia meant that the life of the Federation was limited. On

21 23rd December 1990, Slovenia held a referendum on independence. On 15th

22 May 1991, Serbia blocked what should have been an automatic procedure and

23 prevented Croatia from having its turn on the collective Presidency, thus

24 leaving Yugoslavia without

25 a head of State. Thus, the Federal system could no longer work. On 19th

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1 May 1991, Croatia held a referendum on independence. On 25th June 1991,

2 Slovenia issued declarations of independence.

3 The break-up of the Federation opened the question of

4 what was to happen to the military forces. The armed forces of the

5 Republic of Yugoslavia, referred to as the Socialist Federal Republic of

6 Yugoslavia, comprised two elements. The first level was the Yugoslav

7 People's Army, referred to as the "JNA"; the second level was the

8 Territorial Defence Forces, the "TO", which was a Republican based force

9 derived from the traditions of the partisans in guerrilla warfare during

10 the Second World War. The Federal Secretariat for the People's Defence

11 directed the JNA. The Secretariat for the People's Defence in each of the

12 Republics was responsible for the Territorial Defence.

13 The philosophy behind this two-tiered structure of

14 defence forces was that the JNA was to be the first echelon of the defence

15 to resist initial attack and to carry out holding operations while the TO

16 mobilised. It was always assumed that both tiers of the armed forces

17 would operate together, which they might well have done had Yugoslavia

18 been attacked from outside, but what was not realised was that in the

19 event of a civil war the Territorial Defence aligned along nationalist

20 ethnic lines would be potentially in conflict with the Federal JNA.

21 Initially, the JNA was a true reflection of its federal

22 mandate and was composed in its command structure of a representative

23 level of personnel from each of the republics. But with the disintegration

24 of the republic in the late 1980s and early 1990s, the republic's

25 representation began to decline in favour of an increasing Serbian

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1 dominance, such that by March 1992 the Serb component of the officer corps

2 of the JNA had risen to in excess of 90 per cent. Then when the JNA went

3 to war to protect the break up of the Federation, it did so not as the

4 Yugoslav Federal army but as the de facto Army of Serbia.

5 Immediately after the Slovenian and Croatian declarations

6 of independence, the JNA together with other Serb forces responded with

7 armed force. The Slovenian TO, Territorial Defence, proved effective

8 against the JNA. The European Community offered to mediate; a move which

9 surprised the JNA, which then feared Western military intervention.

10 Accordingly, it abandoned its fight against Slovenia and concentrated on

11 Croatia where it was perceived that Serb military populations were

12 potentially under threat.

13 It soon became apparent that the quest for Croatian

14 sovereignty would prevail in the face of Serb dominated Yugoslav

15 federation. Accordingly, the JNA took steps to preserve Serbian interests

16 in Bosnia. In 1990, the JNA ordered all TOs in Yugoslavia to turn over

17 their weapon stocks. The fact that Slovenia refused to do so was the key

18 to their successful defence. In Croatia, most of the units also turned in

19 their weapons, which helps explain Croatia's initial difficulties in its

20 defence.

21 When Bosnia made it clear of its intention to seek

22 independence, the JNA began to redistribute the arms to the Bosnia Serb

23 population. With increasing tensions in Bosnia, in December 1991 Bosnia

24 applied to the European Community for diplomatic recognition. Bosnian

25 Serbs then set up their own Serbian Autonomous Region in Bosnia.

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1 In March 1992 a referendum was held to determine the

2 future of Bosnia's membership of the Socialist Federal Republic of

3 Yugoslavia. Bosnian Serb leaders boycotted the referendum. Despite the

4 boycott, 63 per cent participated in the vote, 90 per cent voted for

5 independence. On 6th March 1992, President Izetbegovic declared Bosnia's

6 independence and called for international recognition. Recognition came

7 from some quarters as early as 6th April 1992. On 7th April 1992,

8 Bosnian-Serb leaders declared what was to become the independent Republika

9 Srpska. Following these moves a brutal war then ensued.

10 Between March and May 1992, the JNA aided by the

11 Territorial Defence units, police forces and various paramilitary groups,

12 such as those led by Seselj and Arkan, engaged in a series of apparently

13 co-ordinated attacks and takeovers to secure the main entry points into

14 Bosnia as well as major communications and logistics lines, for example,

15 Bosanki Brod on 27th March 1992; at Derventa and Bijelina on 2nd April

16 1992; at Kupres on 4th April 1992; at Foca and Zvornik on 8th April 1992;

17 at Visegrad on 13th April 1992; at Bosanki Samac on 17th April 1992; at

18 Vlasenica on 18th April 1992; at Brcko and Prijedor on 30th April 1992.

19 If your Honours please, if the technician is good enough

20 to put upon the screens, map 2-20.

21 THE PRESIDING JUDGE: Mr. Niemann, I presume these will be identified and

22 then offered into evidence?

23 MR. NIEMANN: Tendered in the course of evidence, your Honour.

24 THE PRESIDING JUDGE: This is map 2 of -- I did not hear the rest of it.

25 MR. NIEMANN: 2-20. Your Honour, that is a computer reference, your

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1 Honour. Your Honours can see some of the towns mentioned in highlight

2 there on that map showing Brcko, Bosanski Samac, Prijedor and Vlasenica.

3 One can see the surrounding republics of Serbia, Montenegro and then to

4 the left is Croatia.

5 As the attacks progressed, the combined Serb forces

6 conducted a campaign of terror to drive out the non-Serbs and those

7 "disloyal" Serbs from the occupied areas. The label given to this

8 practice was coined by the Serbian extreme nationalist leader, Voislav

9 Seselj, in 1991/92 as "ethnic cleansing".

10 On 19th May 1992, in an apparent effort to distance

11 itself from the Bosnian conflict, Belgrade ordered the division of the JNA

12 in Bosnia to the Serbian Army in Bosnia (later to be known as the army of

13 the Republika Srpska, or the VRS) and the Army of Yugoslavia, the VJ.

14 However, the VRS, the Republic of Srpska Army, was left largely intact,

15 with significant military equipment, including tanks, heavy artillery and

16 munitions. The only significant difference was that the new VRS, the

17 Republic of Srprska Army, was staffed by Serbians from Bosnia and the

18 non-Bosnian Serbs soldiers from Serbia were allowed to return to the rump

19 Yugoslavia.

20 However, despite the public statements, officers were not

21 encouraged to leave, but rather to stay and, as a result, the officers of

22 the VRS, the Republika Srpska Army, were in large measure the same ones

23 who had run the same units for the JNA. In addition, the direct support

24 of the VRS by the JNA and the Federal Republic of Yugoslavia continued,

25 including the payment of salaries to officers. The Republika Srpska Army

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1 received also direct logistical support at all levels. Accordingly, there

2 was still significant involvement in the Bosnian conflict by Belgrade

3 after the division of the army in May 1992.

4 Through the spring offensive of April/May 1992 by the

5 JNA, with Territorial Defence units and police forces and pro-Serb

6 paramilitary groups was planned, a systematic and co-ordinated attack.

7 Preparations for the offensive started in late 1991. The JNA supplied

8 paramilitary groups and Bosnian-Serb volunteers with weapons and munitions

9 and proceeded to disarm the non-Serb population.

10 In those areas where the Serbs were not in control of the

11 local administrations, including the police, every effort was made to

12 undermine their authority. In most of the occupied cities, the Serbs set

13 up "crisis Headquarters" which took over the control of the local

14 government including the Territorial Defence. In those places where this

15 occurred, the Serb population received advance notice -- the Bosnian-Serb

16 population received advance notice of what was about to occur. In those

17 cities where there was to be a Serbian attack either by the JNA,

18 paramilitary groups or both, a significant proportion of the Bosnian-Serb

19 population was evacuated before the attack commenced. This pattern

20 repeated itself in a consistent manner all over Bosnia.

21 Many Muslims tried to negotiate a resolution in the hope

22 of avoiding violence. As a consequence, the Muslims did little in

23 preparation for the Serbian attack.

24 The military operations by the JNA and the pro-Serb

25 paramilitary groups followed in a consistent pattern. Excessive amounts

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1 of artillery was used in the initial stages to shell non-Serb

2 neighbourhoods in order to discourage resistance, non-Serbs were expelled

3 from the area and where resistance occurred it was ruthlessly crushed.

4 The artillery attack by the JNA was usually co-ordinated with street

5 fighting by the paramilitary groups who were assisted by Serb irregulars

6 in street fighting and the rounding up of the non-Serbs of the district.

7 The paramilitary group operated right across Bosnia. The rounding-up of

8 the non-Bosnian-Serb population was a systematic and thorough operation,

9 with the paramilitary groups relying on local information and

10 identification of the non-Serbs by the local irregulars.

11 Once the non-Serb population had been collected together,

12 they were then sorted: Women, children and elderly men were separated

13 from the men of military age, although at times and in some places all men

14 were separated from the women and children, making the women much more

15 vulnerable to rape and mistreatment. Terror tactics such as killings,

16 rapes and tortures, were used apparently condoned by the paramilitary

17 commanders. The JNA, and the paramilitary commanders during the sweeps

18 through non-Serb neighbourhoods participated in this activity. The terror

19 served to intimidate and discourage resistance and to compel non-Serbs to

20 leave the area.

21 Following the military attack, the crisis headquarters

22 took over. These crisis headquarters worked closely with the military and

23 usually had military personnel represented on the committees. They

24 established curfews, restricted travel, dismissed non-Serbs from their

25 jobs and continued the process of identification and identification of the

Page 22

1 non-Serb population. During the attacks or following non-Serb cultural and

2 religious symbols such as mosques and Catholic churches were destroyed.

3 Non-Serb businesses and houses were also systematically destroyed.

4 In order to house the non-Serb population that had been

5 identified and collected by the military or crisis headquarters, the Serbs

6 established a series of camps throughout Bosnia. Conditions in the camps

7 were for the most part appalling. The camps were also classified

8 according to use. Some camps were used for the women and the children

9 where rapes and mistreatment were common. Other camps were used as

10 torture centres where men usually (but not always men) were savagely

11 beaten and killed. The brutal conditions in these camps were in

12 furtherance of a campaign of terror designated to persuade non-Serbs to

13 abandon their homes and leave the area, or for them to be otherwise

14 destroyed.

15 The events of this case are concentrated in the region of

16 north-west Bosnia known as Opstina Prijedor. The main city in Prijedor

17 bears the same name as the Opstina. But other significant towns to

18 feature in the evidence are Kozarac, Trnopolje, Omarska, Hambarine,

19 Kozarusa, Kamincani, Jaskici and Sivci, just to mention a few.

20 If your Honour pleases, I might ask the technician to put

21 on the screen map 2-21 which places Prijedor Opstina surrounded by the

22 Opstinas of Sanski Most, Banja Luka, Bosanski Novi and the others that one

23 can see on the screen.

24 Your Honours, Prijedor was significant to the Serbs

25 because it is strategically placed in a corridor that links the Serb

Page 23

1 dominated area in the Croatian Krajina to the west, with Serbia and

2 Montenegro to the east and the south. The Krajina Serbs have lived on

3 either side of the Bosnian border with Croatia for generations. During

4 World War II, this was the heart of the Ustasha territory where the Serbs

5 were subjected to the appalling torture. Before the war, the population

6 of Prijedor was almost evenly divided between Muslims and Serbs. But by

7 June 1993, of the nearly 50,000 Muslims living in the Opstina before the

8 war, all but about 1,000 had either left or been killed.

9 Although election results in 1990 suggested that the

10 local administration should be shared by Muslims and the Serbs, Bosnian

11 Serbs, the Bosnian Serbs who had previously dominated the local

12 administration resisted the Muslims taking control of local institutions.

13 By late 1991, the Serbs of Prijedor were instructed by the central

14 leadership of the Serbian Nationalist Party, the SDS, to prepare for the

15 taking over of all local institutions. The Serbian crisis headquarters of

16 Prijedor was in place immediately following the military takeover of the

17 region by the JNA on 30th April 1992.

18 The military situation in the Prijedor region was

19 dominated by the 5th Corps of the JNA, whose headquarters was in Banja

20 Luka. After 19th May 1992, the 5th Corps was designated the 1st Krajina

21 Corps of the Republic of Srpska Army, but it had the exact same Commanding

22 General and officer Corps. It was the 5th Corps which ordered the

23 deployment of artillery and troops on the hills surrounding the Kozarac

24 area, from where they looked down on the population below.

25 Television signals to Prijedor were mostly transmitted

Page 24

1 from a tower on Kozara mountain. However, in 1992, Prijedor residents

2 found that they were no longer able to receive television from Sarajevo or

3 from Zagreb, but only from Belgrade. Belgrade television broadcast

4 anti-Muslim and anti-Croat propaganda which escalated in intensity,

5 repeatedly accusing non-Serb extremists for plotting against the Serbs.

6 On the night of 30th April 1992, Serb forces seized the

7 town of Prijedor. There was no resistance. Non-Serb police surrendered

8 their arms. Serbs took over control of the civilian administration and

9 renamed the Opstina as "Srpska Opstina Prijedor". Over the next few

10 weeks, radio Prijedor repeatedly broadcast demands for the non-Serbs to

11 surrender their arms. Travel for non-Serbs was curtailed, and they were

12 dismissed from their jobs. Communications from Muslim villages were cut

13 off. On 22nd May 1992, during a confrontation at a Muslim checkpoint in

14 Hambarine, a predominantly Muslim village, two Serbs were killed. The

15 next day Serb forces launched an attack with artillery and tanks. The

16 village was destroyed and the population fled.

17 In about the centre of the Opstina Prijedor is the town

18 of Kozarac. There was nothing in particular to distinguish this town from

19 a multitude of other towns in Bosnia, except that the majority of the

20 population were Muslim. When the war came to Kozarac, it came with

21 particular ferocity. The usual hallmarks of the attack were present in

22 Kozarac, as they were right across Bosnia, where the JNA aided by the

23 paramilitary and irregular forces attacked the non-Serb areas. The

24 checkpoints were established, freedom of movement was restricted. A false

25 pretext was raised to justify the Serb attack, and the Muslims were

Page 25

1 generally ill-prepared for war.

2 When the JNA surrounded the area of Kozarac the Serb

3 military commander, Radmilo Zeljaja, demanded that the local Muslims

4 pledge loyalty to the Serb authority or face annihilation. The town of

5 Kozarac itself was a community of approximately 4,000 persons. Kozarac

6 was predominantly a Muslim village and of the population of 4,000 about

7 3,700 of them are Muslim. Kozarac was a centre for the surrounding

8 villages of Trnopolje, Kozarusa and Kamincani. The town had a school, a

9 medical clinic, a police station, a number of mosques, one orthodox

10 church, an ambulance station, a number of restaurants, hairdressers, mixed

11 businesses and the like. The major industry in the area was timber, with

12 a timber mill located on the outskirts of the town. In the main street of

13 the town, there were a number of bars and cafes where the local community

14 would regularly gather in order to socialise.

15 Up until the 1990s, the various ethnic groups socialised

16 freely with one another but, as the clouds of conflict began to gather,

17 signs of ethnic tension became more

18 and more visible in Kozarac.

19 One of the bars in the centre of the town diagonally

20 opposite the school on Marsala Tita Street was called the "Nipon" cafe.

21 This bar was owned by the accused, Dusko Tadic, also referred to as Dule

22 or Dusan Tadic. Tadic was born in Kozarac on 1st April 1995 (sic), the

23 son of a decorated Serbian World War II veteran, Ostoje Tadic,

24 and his wife, Staka. As a young man and after completion of his high

25 school studies, Dusko Tadic did his military service. He then went back

Page 26

1 to Kozarac where he was married.

2 Tadic had an enduring interest in Karate, where he

3 excelled, gaining the level of black belt. He set up a Karate school

4 which failed. He taught Karate at the local school in Kozarac across from

5 his house. He had a number of friends who shared his interest in Karate,

6 several of these friends were Muslims. As young men, they would often

7 measure the worth of their prowess in terms of their ability at Karate.

8 The cafe-bar was set up at the bottom of his house.

9 The accused Tadic appeared to get on well with the

10 Muslim population and among his close associates was one Emir Karabasic.

11 However, as the 1992 war approached, all this was to change. Tadic was to

12 exhibit staunch Serb nationalist sentiments and progressively adopt

13 anti-Muslim attitudes. He also became involved in politics, especially

14 with the emergence of the Serb Nationalist Party, the SDS.

15 In view of his known Serb nationalist preferences, Tadic

16 was relied upon by the Serb forces during the 1992 spring offensive

17 directed against Kozarac. Just prior to the attack on Kozarac on 24th May

18 1992, in full knowledge of what was about to happen, Tadic evacuated his

19 family from Kozarac so as to take them out of the line of fire of the

20 advancing Serb Army.

21 Tadic was willingly used by the advancing Serb forces as

22 an important source of intelligence and as a person capable of identifying

23 local Muslims, Croats and other persons disloyal to the Serb nationalist

24 cause. In all the traditions of the "fifth column", he skillfully

25 performed his task. During 1992, he rose from relative obscurity to a

Page 27

1 person of influence in the Kozarac area as a result of his new position in

2 the SDS. No doubt, his local knowledge and known reliability was of

3 considerable utility to the Serbian military and civilian administrations.

4 While the local community in Kozarac, mostly Muslims,

5 were desperately trying to negotiate a peaceful settlement of the crisis,

6 thereby avoiding bloodshed and destruction, the Serbs attacked. Tadic, to

7 the eleventh hour, endeavoured to present himself as a friend of the

8 Muslims of Kozarac. He attended negotiations between the Serbs and the

9 Muslims pretending to support the Muslims, but knowing full well at all

10 times that, in reality, he had not the slightest intention of advancing

11 their cause.

12 The shelling of Kozarac and the surrounding villages

13 commenced on 24th May 1992 and continued for two days. Tadic was now able

14 to emerge from his undercover role. Forewarned and according to plan,

15 Tadic as an aid to the Serb military surrounding the town, assisted the

16 artillery attack on Kozarac by firing flares in the air at night over his

17 preselected targets.

18 On 27th May 1992, the shelling of Kozarac ceased.

19 Defenceless and unable to negotiate a cease-fire, the terrified towns

20 folk, mostly Muslims and non-Serbs, desperately clinging to their white

21 flags emerged in their thousands from their hiding places, in basements,

22 under rubble and in creek beds. These people were not soldiers, they were

23 not armed, they were for the most part civilians, including women,

24 children and the elderly. They were the innocent citizens of this area.

25 Serbian soldiers and local armed citizens, including

Page 28

1 Tadic, who by now had armed himself with an automatic weapon, ordered

2 these unfortunate people to form into columns, to remain silent and to

3 keep their heads bowed. They were then marched through Kozarac, as the

4 trophy of war, to the taunts and curses of the Serb on-lookers. Some of

5 the Muslims and non-Serbs were pulled out from the line and beaten or

6 killed. The bodies of the dead were left beside the roads as the column

7 marched by. Mothers and fathers watched in horror as their military aged

8 sons were pulled out from the column and shot before their very eyes.

9 Marching in this column was Ismet and Ekrem Karabasic,

10 their brother's son, Seido Karabasic, 21 years of age, and Redo Foric.

11 None of these men were armed. They were of no military threat

12 whatsoever. They were all Muslims. They were with members of their

13 family. They all seemed to have been known by either Tadic or his

14 accomplice there that day, Goran Borovnica. Borovnica was a close friend

15 of Tadic before the war, and continued as a friend during the course of

16 the war.

17 On this particular day, Tadic and Borovnica were acting

18 in concert. As the column approached the centre of Kozarac in the

19 vicinity of a small bar which served grilled meat, Borovnica and Tadic

20 were calling out the names of the people in the column and ordering them

21 to leave the column. Nearby was a pile of corpses dressed in civilian

22 clothing, approximately 20 in number.

23 Tadic and Borovnica then called out Ismet, Ekrem and

24 Seido Karabasic and Redo Foric. These men were then forced to stand

25 against the wall, facing the wall, with their hands raised above their

Page 29

1 heads. They were then shot with bursts of fire from automatic weapons.

2 For the non-Serbs of Kozarac, their families were torn

3 apart. Loved ones were taken away and never seen again. Properties were

4 destroyed and hopes and dreams were shattered. A reign of unimaginable

5 terror had begun. Men were segregated from women and children. Some of

6 the men were taken to the Prijedor police station where many of them were

7 beaten. For a large number of these men this was the beginning of a

8 sustained campaign of beatings.

9 Most of the men ended up in camps in Omarska or Keraterm.

10 The others, including women and children, were sent to Trnopolje.

11 Conditions at all the camps were appalling, but Omarska and Keraterm stand

12 out as the camps where the most horrific of atrocities were committed.

13 There was evidence of co-ordination between these camps.

14 The three main camps in the Opstina, as I said, were

15 Omarska, which was a former mining complex, Keraterm, a former ceramics

16 factory, and Trnopolje, a former school. The towns where the camps are

17 located are indicated on a map that I might ask now be shown on the

18 screen, 2-22. Your Honours can see there the towns of

19 Kozarac, Trnopolje and down to the bottom right-hand corner of the screen,

20 Omarska. The camp at Keraterm is, in fact, part of the town of Prijedor

21 and is not referred to on the map. But one can see that these camps are

22 all in close proximity to one another and

23 all in close proximity to the town of Prijedor.

24 Omarska held those who were prominent in the Muslim

25 society, intellectuals, politicians and businessmen. A lesser number were

Page 30

1 held at this camp than at the other camps such as Trnopolje. Prisoners at

2 Omarska were systematically murdered, beaten or otherwise subjected to

3 terrible degradation.

4 The camp at Keraterm was located, as I said, in what was

5 previously a ceramics factory on the outskirts of the city of Prijedor.

6 The camp consisted of one

7 large building being divided into several separate rooms. There was no

8 heating or cooling and there was no cover on the concrete floors apart

9 from wooden pallets that

10 the prisoners had gathered for themselves in order to sleep. The toilet

11 facilities were totally inadequate, with people having to attend to their

12 daily needs in buckets. There was a fence around the camp, but for the

13 most part the inmates were kept in a shed

14 under armed guard.

15 There was one meal a day served in unsanitary conditions.

16 The food was often rotten or if it was soup it was so watered down that

17 it practically had no

18 nutritional value. When inmates had to go for their meals, they were

19 often forced to run through a cordon of guards who would beat them so

20 fiercely that often the victims

21 would forego their meals so as to avoid the further beating, thus further

22 reducing their physical condition.

23 Many of the inmates lost as much as half of their body

24 weight during the months that they were kept in the camps. Some just died

25 of malnutrition or as a consequence of their beating coupled with the

Page 31

1 malnutrition. The camp at its peak had a population of 1,500 inmates that

2 were processed through the camp on a continual basis. The camp was made

3 up almost exclusively of male inmates. It is anticipated that a great

4 many of the prisoners that were taken to this camp have lost their lives.

5 As I said, the camp at Omarska was on the fringe of a

6 small town that bore the same name. The camp was at the site of an iron

7 ore mine that had also ceased to function at this time. The camp was at

8 the headquarters of the mine. It consisted of

9 three main buildings which the witnesses refer to in the course of their

10 evidence as the "white house", the "Administration building", the "garage

11 or dumper" building. There is also a "small garage" but it is attached to

12 the Administration building itself.

13 In the centre of these buildings was a large concrete

14 slab about 17 metres by 30 metres in size which was referred to by the

15 prisoners as the "Pista". Many of the prisoners spent most of their time

16 in this camp on this concrete open slab. Conditions at this camp in terms

17 of food, hygiene and accommodation were much the same as at Keraterm, as

18 was the treatment of the prisoners that were kept there. The camp was

19 used to imprison mostly men, but again some women were kept there as

20 well. The camp also had a special accommodation and special treatment

21 meted out for leaders of the Muslim community, including professionals,

22 such as doctors, lawyers and police officers. At its peak, the population

23 of this camp had as many as 2,000 to 3,000

24 inmates, again who were processed through the camp on a continuous basis.

25 It is estimated that a great many of the prisoners at this camp also lost

Page 32

1 their lives.

2 Trnopolje is often regarded as the least brutal of the

3 three camps, but conditions at this camp were very bad as well. The camp

4 was made up of mixed sexes and children. The camp was located in the

5 village of Trnopolje, approximately three kilometres from Kozarac. It

6 changed its role from torture centre to detention centre on a number of

7 occasions throughout 1992, and this mostly depended upon whether the

8 International Committee of the Red Cross were about to visit or not.

9 Sometimes it was fenced, but at other times the fences were removed. Many

10 of the inmates could leave the camp with permission in order to get food

11 and other supplies, but this freedom of movement depended upon the

12 circumstances at the time.

13 In Trnopolje camp, the inmates often made their own

14 shelter out of plastic sheeting. Although conditions at this camp in

15 terms of beating and brutality were for many of the prisoners better than

16 Omarska and Keraterm, beatings, rapes, murders and other forms of abuse

17 were, nevertheless, meted out in significant proportions. This camp was

18 at the site of a school and the main prisoner accommodation was in a large

19 gymnasium. The accommodation for the guards was in a building across the

20 road from the camp, which the witnesses will also refer to as a "white

21 house". This "white house" is not to be confused with the "white house"

22 at Omarska.

23 All the camps had their own command structure and the

24 guards were specifically organised in shifts under shift bosses. There

25 was co-ordination between the camps, which were run by the civilian

Page 33

1 authorities with military co-operation, particularly with the brutal

2 interrogations. While some guards beat and killed prisoners from time to

3 time, particular local Serbs would enter the camp and beat or kill Muslim

4 inmates as they themselves had selected. The basis upon which these

5 particular Bosnian Serbs were chosen to have special rights, including the

6 rights of entry, is uncertain, but what appears is that the non-camp staff

7 were allowed into the camps in order to commit particularly brutal acts of

8 terror, presumably, in furtherance of the policy of ethnic cleansing.

9 It would seem, however, that there is a category which

10 these Serb torturers appeared to fit; they either had anti-Muslim,

11 ethno-centric political dispositions which was conducive to the

12 performance of these deeds or, alternatively, they were sadistically

13 predisposed towards violence and took pleasure in inflicting tremendous

14 pain and suffering upon the helpless victims, and thus served as a useful

15 agent of the authorities.

16 Tadic, the accused, was not a camp guard. He was a

17 reserve policeman, but he was often seen entering the camps in the

18 Prijedor region with lists of the names of Muslims who had been singled

19 out for especially brutal treatment. When Tadic did enter the camps, he

20 did so beyond the ordinary duties required of him as a policeman.

21 Presumably, his reward for services rendered were special privileges, such

22 as housing rights and the like. Later, he was to receive special status

23 in the local administration

24 and of being in charge of the distribution of humanitarian aid, a position

25 of some importance and trust during these periods of shortages.

Page 34

1 Tadic seemed to be in a superior position to the camp

2 guards and possibly even the camp commanders, but that was not as a

3 consequence of any particular rank that he held in the Police Force but,

4 it would seem, as a consequence of his political authority. The evidence

5 will show that he was permitted to enter camps almost at random and to

6 carry out assaults, murders, rapes and sexual assaults on the prisoners

7 that he had selected. It seems that he was also permitted to bring his

8 accomplices with him in order to assist him with his rampage of violence

9 and terror. He, along with many others who performed these tasks, were

10 seen with lists of names in their hands, which lists they consulted before

11 calling out their victims especially selected for torture.

12 Reference to these lists will be made by the witnesses on

13 numerous occasions throughout the course of their evidence.

14 In the mid-afternoon on a day in June 1992, the accused

15 Tadic entered the Omarska camp with a group of Bosnian Serbs. They went

16 to the large garage building known as the "hangar". They proceeded to

17 call out the names of a number of people, including Emir Karabasic, Jasmin

18 Hrnic, Enver Alic, Fikret Harambasic and Emir Beganovic. These and the

19 other people called out were in a number of different rooms in the

20 building. These men were then subjected to the most horrific beating and

21 torture. Two other male prisoners were then called out forced to perform

22 oral sex on Fikret Harambasic and then to sexually mutilate him.

23 Karabasic, Hrnic, Alic and Harambasic died as a result of these assaults.

24 Tadic again entered the Omarska camp on or about 10th

25 July 1992. This time he went to the "white house" which was considered by

Page 35

1 all of the prisoners as the most dangerous place in the camp. Tadic was

2 with a group of visiting Serbs. Prisoners from the white house and

3 elsewhere were tortured outside the white house. When the Serbs were

4 finished, Tadic threw a battered and dying Sefik Sivac, a restaurant owner

5 from Kozarac and a former Muslim friend of Tadic, into a room in the white

6 house. Sivac died from the beatings.

7 Later, in July 1992, this time behind "the white house

8 building" in the Omarska camp, Tadic in company of other Serbs from

9 outside the camp severely beat and kicked Hakija Elezovic, Salih Elezovic,

10 Sejad Sivac and other prisoners. The guards were wearing camouflage

11 uniforms. They were using baseball bats and rubber sticks. One of them

12 was using a spanner as a weapon. 10 or more were doing these beatings.

13 The man who appeared to be in charge was Tadic. Tadic did not use any

14 weapons, only his feet in the Karate fashion. Salih Elezovic and Sejad

15 Sivac and other prisoners were found dead in the same spot later that day.

16 Towards the end of June, or the first part of July, 1992,

17 also near the "white house", Tadic and a group of Serbs from outside the

18 camp ordered a group of prisoners to drink water like animals from puddles

19 on the ground. They then jumped on their backs and beat them until they

20 were unable to move. The victims were then removed from the area in a

21 wheelbarrow. Tadic followed behind them and then forced the nozzle of a

22 fire extinguisher into the mouth of one of the victims.

23 On or about 8th July 1992, also in the white house, Tadic

24 and a group of Serbs from outside the camp called out prisoners

25 individually from one room in the "white house" to another room where they

Page 36

1 were beaten. One of the prisoners was Hase Icic. Hase Icic was taken to

2 the torture room where Tadic, assisted by his accomplices, beat

3 and kicked him until he was unconscious.

4 Not all Muslims, Croats and disaffected Serbs were

5 gathered up in the first round of ethnic cleansing after the Serb attack

6 on Kozarac and the surrounding areas of the Opstina Prijedor; some people,

7 especially old men, women and children, mostly Muslims, were permitted to

8 stay in their villages. They were under a curfew and were not allowed to

9 travel and as such were prisoners of the Serbs, albeit they did not have

10 to reside in the camps. This situation of virtual house-arrest was not to

11 last for long, because about 10 days after the initial sweep, these

12 remnants of Muslims had to confront their turn to be ethnically cleansed.

13 In the villages of Jaskici and Sivic, located southeast

14 of Prijedor town, on or about 14th June 1992, Tadic with a group of armed

15 Serbs came to the village in order to further the Serbian cause of ethnic

16 cleansing. Tadic and the other Serbs entered Jaskici, jumping fencing

17 like hunters chasing game. They yelled for all the people in the houses

18 to come out. Those inhabitants who were outside or who came out were made

19 to lie on the road.

20 Abaz Jaskic, born in 1942, and his son, Nijis Jaskic,

21 born in 1964, were killed in the village that day. The Serbs went to the

22 home of Sakib and Osme Elkasevic. They along with Alija Javor, who was

23 not a resident of the village, were also killed that day.

24 Salko Jaskic, Beido Balic and Sefik Balic were ordered

25 out of Salko's house by the Serbs and told to lie down on the road. Ismet

Page 37

1 Jaskic, Meho Kenjar, Adam Jakupovic and Nijas Elkasevic and Ilijas

2 Elkasevic were also driven down the road and ordered to lie down in front

3 of the house of Salko Jaskic.

4 While they were on the ground, the men were all beaten by

5 both the Serb groups who were using fence posts and other such weapons.

6 All of the Serbs, including the accused Tadic, appeared to be

7 participating. Some of the Serbs were walking on the back of the old man,

8 Meho Kenjar, as if to crush him.

9 None of these Muslim men were armed, nor did they offer

10 any resistance. Those that were not killed were taken away from this

11 place and have not been seen

12 since.

13 Throughout the most part of 1992, the Serb authorities

14 pursued a campaign of persecution of the non-Serbs of the Prijedor

15 Opstina. They persecuted the non-Serbs because they wanted the Opstina

16 completely free of Muslim or Croatian influence.

17 Tadic participated with the Serb forces in this

18 persecution which manifested itself in the attack, destruction and plunder

19 of Bosnian Muslims and Croat residential areas,

20 the seizure and imprisonment of thousands of Muslims and Croats under

21 brutal conditions in the camps at Omarska, Keraterm and Trnopolje, and the

22 deportation

23 and/or expulsion of the majority of the Muslim and Croat residents of the

24 Opstina by force or threat of force. During this time, Serb forces,

25 including Dusko Tadic, subjected Muslims and Croats inside and outside the

Page 38

1 camps to a campaign of terror and psychological abuse.

2 Tadic was actively involved, as I said earlier, in the

3 attack on Kozarac. His participation in the firing of the flares to

4 illuminate the village at night for the artillery and tank guns as the

5 village was being shelled and physically assisting in the seizure,

6 collection, segregation and forced transfer to detention camps of the

7 majority of the non-Serb population of the area is also evidence of his

8 participation.

9 Tadic also took part in the killing and beating of a

10 number of seized persons, including the killing of an old man and a woman

11 near the cemetery in "old" Kozarac, the beatings of at least two former

12 policemen from Kozarac at a road junction in the village of Kozarac and

13 the beating of a number of Muslim males who had been seized and detained

14 at the Prijedor military barracks.

15 The fact that Tadic physically took part in the killing,

16 torture, sexual assault and other beatings of many of the detainees at

17 Omarska camp and participated in the beating of detainees and looting at

18 the Keraterm camp is further evidence of his participation in this

19 campaign of persecution.

20 In addition to the above, and during the period 25th May

21 1992 to 31st December 1992, Tadic physically participated and otherwise

22 assisted in the transfer to and the unlawful confinement in Trnopolje camp

23 of non-Serbs in the Kozarac area. During the period September 1992 to

24 December 1992, in Trnopolje camp and in the adjacent areas, Tadic

25 physically took part or otherwise participated in the killing of more than

Page 39

1 30 detainees, including a group of mail detainees executed in a plum

2 orchard adjacent to the camp. Tadic also physically took part or

3 otherwise participated in the torture of more than 12 female detainees,

4 including several gang rapes, which occurred in the camp and at a "white

5 house" adjacent to the camp.

6 Concurrent with the attack and seizure of the non-Serb

7 populations in Kozarac and surrounding area, the Serb forces plundered and

8 destroyed the homes, businesses and properties of non-Serbs. The seizure,

9 transfer and detention of the non-Serb populations and the plundering and

10 destruction of their property continued throughout this campaign of

11 persecution of the non-Serb population.

12 Tadic was aware of the widespread nature of the plunder

13 and destruction of personal and real property of the non-Serbs and was

14 physically involved in this plunder and destruction himself. The

15 subjugation and persecution of prisoners at the camps was achieved in

16 similar ways. New prisoners were usually greeted with beatings upon their

17 arrival. This happened while the camp commander often looked on. On

18 other occasions prisoners were not fed for several days after their

19 arrival at the camp, and even after that they only received the most

20 meagre of daily rations.

21 At the height of summer, water was often withheld and, if

22 served, it was often contaminated. Toilet facilities and hygiene

23 conditions were inhuman. As if all this treatment were not enough, the

24 prisoners were then forced to sing or to listen to Serbian nationalist

25 songs. Almost all the prisoners were subjected to interrogation, which

Page 40

1 often meant beatings at the same time. Beatings were rampant, especially

2 at night and at meal times. Prisoners were killed almost every night,

3 with their corpses being stacked up awaiting removal by trucks in the

4 morning.

5 Most of the camp guards were from the villages near the

6 camps. However, the interrogation was often conducted by the local police

7 and school teachers. From time to time members of the special military

8 forces and some local civilians came to the camps and administered

9 particularly brutal beatings and other measures of torture.

10 In early August 1992, the international press and the

11 International Committee of the Red Cross were granted permission to visit

12 these camps. Immediately before the visits, most of the prisoners from

13 Omarska and Keraterm were transferred to Trnopolje and Manjaca. A large

14 number were put to death in one last attempt to wipe out the Muslim

15 population.

16 Those prisoners who survived the ordeal, and in most

17 cases only did so because the camps were exposed by the international

18 media and the International Committee of the Red Cross, were eventually

19 allowed to leave the camps provided they relinquished their property and

20 left the region. By this time, the Muslim leaders and intellectuals had

21 mostly been wiped out, their homes and mosques destroyed. The ones who

22 had survived had no jobs and what was once their home was now a hostile,

23 unprotected and foreign environment. A whole ethnic community had,

24 effectively, been destroyed in that area. Ethnic cleansing had been

25 achieved.

Page 41

1 In February 1994, Tadic was arrested in Munich, Germany,

2 by the German Police as a result of their investigation into the

3 activities of the accused. On 11th October 1994, in Munich, the accused

4 was questioned by the German Police in the Munich Standelheim prison.

5 Tadic was informed that he could either speak about the accusations made

6 against him or he could remain silent, and that he was entitled to the

7 assistance of a defence counsel of his own choosing. Defence counsel was

8 subsequently appointed for Tadic and his lawyer attended the Police

9 Station where he was interviewed by the Police.

10 The accused informed the German Police that in 1991 he

11 was appointed Chairman of the Election Committee in the Kozarac area or,

12 more particularly, one electoral district in the Kozarac area. Tadic said

13 that individuals who were appointed to their respective voting districts

14 were determined by the municipality of Prijedor upon the proposal of

15 existing parties. He said: "I was chairman along with three other Serbs

16 who had been appointed who were responsible for how the voting went on

17 there in organisational terms".

18 Tadic said that in May 1992 he was appointed a member of

19 the local Civic Forum, the role of which was to attempt to resolve the

20 tensions that had developed between the various parties in the Kozarac and

21 Prijedor regions. Tadic said that the Forum was composed of eight Muslims

22 and three Serbs. He also said that, as far as he could remember, the war

23 began in Kozarac on 24th May 1992.

24 He also said that he was never involved in the war and he

25 had moved out of Kozarac on 23rd May in 1992 and lived with his family in

Page 42

1 Banja Luka. The accused said that he lived with his family in Banja Luka

2 until 6th or 18th July 1992, when he was mobilized to Prijedor as a

3 reserve traffic policeman where upon he was subsequently assigned to the

4 village of Orlovci.

5 Tadic said that in October 1992 he was active on a

6 temporary basis in Kozarac as Secretary of the local authority, and on

7 21st December 1992 he was officially appointed to that office. He said

8 that the local SDS Committee was founded in October 1992, and that he had

9 acted only as a temporary Chairman until he was formally appointed in

10 December 1992. He said that at the end of 1992 he was appointed as an

11 intermediary or contact with the International Committee of the Red Cross.

12 In March 1993, he was appointed by the President of the Municipal

13 Assembly to arrange the "civilian life" in the Kozarac area. He goes on

14 to say that Kozarac at that time was practically dead, "... the village

15 had to be rebuilt". During this time he had an exemption from police and

16 military service.

17 He said that in August 1993, after encountering some

18 difficulties in the Prijedor region, he sent his wife and children to

19 Germany and he fled to Banja Luka

20 from where he subsequently went to Belgrade after unsuccessfully obtaining

21 refugee status. He said he came to Germany as a member of a Karate team

22 to attend a tournament in December 1993 where he was granted a short-term

23 residence visa.

24 Tadic denied that he had done anything to harm the

25 Muslims or that he was ever in the Omarska camp. "I have never set foot

Page 43

1 in that place".

2 He said that he was in Trnopolje camp five times, but this was

3 an open camp and people could move about freely, and that he also attended

4 this camp on humanitarian missions. Tadic admitted that in the Police he

5 was provided with an automatic rifle, a police baton, a cross-chest belt

6 which contained bullets and an undefined supply of ammunition, and that he

7 personally owned a pistol which he wore on duty sometimes, especially at

8 night-time, and he carried a knife with a 15 centimetre blade which he

9 used primarily at meal times, and all of this was worn while he was on

10 duty as a traffic policeman.

11 The record of the interview between the German

12 authorities and Tadic was recorded in writing, was read to him in his own

13 tongue and was approved and signed by both Tadic and his counsel.

14 Is that a convenient time, your Honour?

15 THE PRESIDING JUDGE: Mr. Niemann, how much longer do you think you need

16 for your opening statement? We had suggested to the parties, without

17 setting any firm time limits, that you would use not more than half a day.

18 MR. NIEMANN: I only have about half an hour.

19 THE PRESIDING JUDGE: I am not rushing you.

20 MR. NIEMANN: Half an hour at most, your Honour.

21 THE PRESIDING JUDGE: We will stand in recess until 11.45.

22 (11.30 a.m.)

23 (The hearing adjourned for a short time)

24 (11.50 a.m.)

25 THE PRESIDING JUDGE: Mr. Niemann, you may continue.

Page 44

1 MR. NIEMANN: Thank you, your Honour. If your Honours please, on 8th

2 November 1994 the Prosecutor of the International Criminal Tribunal for

3 the Former Yugoslavia presented to Chamber One of the Tribunal a request

4 that the Tadic investigation, then being conducted by the Federal Republic

5 of Germany, be deferred to the Tribunal pursuant to Rules 9 and 10 of the

6 Rules of Procedure and Evidence. The request was granted by the Chamber.

7 The Prosecutor presented an indictment against the accused for

8 confirmation on 8th February. The indictment was subsequently confirmed by

9 His Honour Judge Karibi-Whyte on 13th February 1995, and a formal request

10 for transfer to The Hague was sent to the German authorities. The accused

11 was transferred to The Hague on 24th April 1995 and attended his initial

12 appearance.

13 If your Honours please, the Prosecution will prove that

14 the accused, Dusko Tadic, also called Dule by friends and members of his

15 family, was born on 1st October 1955 in the village of Kozarac. His

16 father's name was Ostoje born in 1920 in the village of Babici. He died

17 in 1990. His motherís name is Staka born in 1920 in the village of

18 Veljko. She is currently living in Kozarac. He has three brothers:

19 Mladen, Stojan and Ljubomir and no sisters. He was married in 1979 and

20 has two daughters. His family was well known in the area, as his father,

21 two uncles and grandfather fought in World War II and his grandmother had

22 been incarcerated in camps during World War II.

23 Tadic commenced schooling at about the age of 7 and

24 attended primary school in Kozarac. He then attended secondary school in

25 Belgrade. At the completion of his schooling in 1976 and 1977 he carried

Page 45

1 out compulsory service in the JNA for a period of 14 months. In 1980 and

2 1984 he worked in Banja Luka as a construction worker and in 1984 he went

3 to Libya with the intention of obtaining employment. He returned in 1985.

4 On his return to Bosnia he worked in the town of Sisak in

5 Croatia in a private company installing carpentry works. He remained in

6 this employment until 1989 when he returned to Kozarac and commenced to

7 build a cafe bar which was to be called Nipon. In December 1990 he opened

8 a cafe bar and ran it until the commencement of the war in 1992. In

9 Kozarac the accused lived in Marsala Tita Street 36 in the area of Kozarac

10 known as the central commune.

11 The Prosecution will establish that in the latter part of

12 1990, possibly August, the accused first joined the Serbian Democratic

13 Party known as the SDS.

14 The Prosecution expects to call in excess of 80

15 witnesses. The evidence will be made up of segments of proof according to

16 the requirements of the charges. The special requirement associated with

17 international crimes will be dealt with in the evidence first. The

18 evidence will consist of a mixture of expert and special fact witnesses.

19 For example, the expert witnesses will opine on the question of the

20 international nature of the armed conflict, the widespread or systematic

21 nature of the crimes and the political and historical background of the

22 conflict. They will also give relevant evidence going to the status of

23 the victims vis-a-vis their aggressors.

24 The special fact witnesses will give evidence relevant to

25 the showing that the armed forces of the Serbs operating in Bosnia

Page 46

1 contained an international element, namely, participation in the Federal

2 Republic of Yugoslavia. They will also give evidence of the widespread or

3 systematic nature of the attack. In other words, this evidence will show

4 that the attack was not some isolated affair in Opstina Prijedor, but it

5 was a much wider, co-ordinated and well-executed a strategy across the

6 whole of Bosnia. The expert witnesses will give evidence of the political

7 makeup of the communities which is of special significance in

8 understanding the nature of the persecution of the non-Serb community.

9 The evidence of the special fact witnesses who will be

10 called following the evidence of Dr. Gow, of necessity will be detailed

11 because they will relate in a summary fashion the events which occurred to

12 them in another place, in another Opstina, but at about the same time.

13 Their evidence in scope is almost as wide as the evidence in scope as is

14 called in this case.

15 Then the witnesses will be called who will attest to the

16 particular charges in the indictment. These witnesses will present their

17 evidence, as much as it is possible, according to the chronological date

18 order of events; starting with the events of Kozarac in the early part of

19 the war, followed by the evidence of what happened to people taken to the

20 Prijedor barracks or to the camps. Then there will follow evidence of

21 what occurred at Omarska Camp, at the villages of Jaskici and Sivci, then

22 Keraterm Camp and then, finally, Trnopolje Camp.

23 The Prosecution case will conclude with a number of

24 investigation witnesses and medical and forensic expert witnesses. It is

25 the Prosecution case that all the evidence will be relevant to the charge

Page 47

1 of persecution. For some of the witnesses the recounting of what occurred

2 to them may cause them stress, more so than what one may ordinarily

3 encounter in a national forum. The recounting by a number of people of

4 the same events will reflect the horror and confusion of the occasion.

5 This may sometimes prevent the neat and orderly dovetailing of the

6 evidence, but such minor variations or descriptions will only serve to

7 reinforce the reliability and integrity of their evidence, because it is

8 almost beyond human capacity for two human beings to witness such

9 appalling scenes and to later recount them with identical descriptions of

10 what occurred.

11 There is also the issue of multiple languages and the

12 imprecision of the interpretation process. As has already been observed

13 in the pretrial stage, a great deal of accuracy is bound to be lost in the

14 translation process. There is no statement taken during the course of the

15 investigation that will be a verbatim report of what the witnesses say.

16 The Prosecution case rests primarily on eyewitness

17 testimony. However, the case is not totally devoid of exhibits. For

18 example, the expert witness Dr. Gow and Greve in particular will refer to

19 a number of documents in support of their testimony. In addition to

20 documents, there will also be some video evidence referred to by these and

21 other witnesses. There will be a number of maps produced to explain where

22 and when things occurred. Dr. Gow, in particular, will give his evidence

23 almost entirely through documents which will be displayed on the

24 television monitor, which exhibits will be tendered by reference to what

25 one sees on the monitor. An index of these documents has been prepared

Page 48

1 and will be distributed to your Honours, to the Defence, the Registrar as

2 an aide memoir, so that helpfully we can follow the complex numbering

3 system which has been brought about by the intrusion of the computer

4 technology into the process.

5 There will also be a considerable number of photographs

6 introduced into the evidence. These photographs were taken by the

7 Tribunal investigators when they first visited Opstina Prijedor in January

8 of this year. We also expect that some of the witnesses may wish to

9 sketch plans or diagrams to assist them in the giving of their evidence.

10 If your Honour pleases, as most of the legal issues,

11 including the elements of the offence, have now been addressed in the

12 Prosecutor's pretrial brief and the Defence's responses thereto, it is not

13 my intention to recanvass these issues in my opening. However, I expect

14 that there will be much discussion on these legal issues at a later stage

15 in the proceedings.

16 Unless I can assist your Honours further, that is my

17 opening.

18 THE PRESIDING JUDGE: Thank you, Mr. Niemann. Will the Defence wish to

19 present an opening statement at this time?

20 MR. WLADIMIROFF: Your Honour, we prefer to deliver the opening statement

21 in the afternoon.

22 THE PRESIDING JUDGE: Pardon me?

23 MR. WLADIMIROFF: We would rather prefer to deliver our opening speech in

24 the afternoon.

25 THE PRESIDING JUDGE: Today?

Page 49

1 MR. WLADIMIROFF: Today.

2 THE PRESIDING JUDGE: Very good. Mr. Niemann?

3 MR. NIEMANN: I am in a position to call evidence, your Honour, but I do

4 not know whether that would be convenient, if Mr. Wladimiroff would

5 perhaps like to follow immediately after me.

6 THE PRESIDING JUDGE: We will proceed until 1 o'clock. So the question

7 now becomes what do we with this hour that we have? I gather you want to

8 present your opening statements so there will be continuity. How much

9 time do you expect you will need, Mr. Wladimiroff?

10 MR. WLADIMIROFF: I would say one hour, up to two hours, your Honour; one

11 hour, up to maybe two hours.

12 THE PRESIDING JUDGE: Mr. Wladimiroff, Rule 84 of our few Rules provides

13 that before presentation of evidence by the Prosecutor each party may make

14 an opening statement. The Defence may, however, elect to make its

15 statement after the Prosecutor has concluded his presentation of the

16 evidence and before the presentation of evidence for the Defence. The

17 rule really does not envision that the Prosecutor would present a portion

18 of its evidence and then the Defence begin its opening statement. You of

19 course may elect to wait to give your opening statement.

20 MR. WLADIMIROFF: I was under the impression that the Prosecution had

21 concluded its presentation.

22 THE PRESIDING JUDGE: Its opening statement, yes. It is now your turn to

23 present your opening statement or, if you wish, you may wait until the

24 Prosecution concludes the offering of its evidence. Now I understand your

25 position, you would rather begin your opening statement and just go right

Page 50

1 through without an interruption. We have interpreters present here and

2 their job, I think, is more difficult than anyone's job in the courtroom.

3 I do not know, we might share in some of the difficulties. So we really

4 could not continue to hear your opening statement in its entirety.

5 So what we suggest is that you begin your opening

6 statement now, if that is how you wish to proceed, or you may wait until

7 you wish to present your evidence on your case, as you wish. Then we will

8 recess at 1 o'clock as we normally do. We can certainly keep your opening

9 statement in context. We will not forget anything that has been said.

10 MR. WLADIMIROFF: I appreciate that, your Honour. Maybe we could

11 compromise on starting at an earlier time this afternoon, because I rather

12 prefer to do it in one presentation and not be interrupted by lunch.

13 THE PRESIDING JUDGE: I do not have a problem with it, but, as I say, we

14 have other persons who expect a recess at a certain time because of the

15 conditions under which they operate. Let me see what can be done.

16 MR. WLADIMIROFF: If we start at an earlier time then I think we will not

17 lose too much time.

18 MR. NIEMANN: If your Honours please ----

19 THE PRESIDING JUDGE: I think it is worked out. We are very flexible,

20 but in this age of technology and everything else we have to get

21 permission from other persons.

22 We have a solution. We will stand in recess then now for

23 an hour and a half rather than taking our lunch break at 1, and so we will

24 return at a few minutes after 1.30 and you will then begin your opening

25 statements, Mr. Wladimiroff. Is that acceptable?

Page 51

1 MR. WLADIMIROFF: Thank you very much.

2 THE PRESIDING JUDGE: Very good.

3

4 (12.08 p.m.)

5 (Luncheon Adjournment)

6

7 (1.30 p.m.)

8 THE PRESIDING JUDGE: Mr. Wladimiroff, you may proceed.

9 MR. WLADIMIROFF: Thank you, your Honours. Your Honours, in the 17th

10 century, the famous Dutch author on international law, Hugo Grotius, wrote

11 that where justice fails, war begins, in Latin: "Ubi iuditia deficiunt,

12 incipit bellum". Indeed, history has shown that in times of conflict the

13 civilised language of war and justice has been shouted down all over the

14 world by thunder of arms and violence over and over again. People,

15 leaders and states have so far not been able to administer basic rules of

16 humanitarian law under all circumstances.

17 Efforts of the international community to recognise

18 violations of humanitarian law, to create legal instruments to prevent

19 further violations and to establish bodies to prosecute such violations

20 did, however, not bring these violations to an end. Despite the

21 atrocities of the Second World War, people all over the world have

22 suffered from a lack of respect for humanitarian law and even today

23 countless people still suffer.

24 The establishment of the International Tribunal for the

25 Prosecution of persons responsible for serious violations of international

Page 52

1 humanitarian law committed in the territory of the former Yugoslavia is

2 intended to be an answer to the appeal of all those victims, named and

3 unnamed, who suffered and still suffer from the terrible consequences of

4 the violent breaking up of the former Yugoslavia. The establishment of

5 the Tribunal, however, could not end the misery of the common man. It was

6 the Dayton Agreement that silenced the weapons, perhaps creating a

7 platform for peace.

8 The importance of the Tribunal, though, is that it may

9 bring justice, if it will not only show that it will investigate and

10 prosecute all major violations without any prejudice to any party to the

11 conflict, but if it will also conduct uncompromised fair trials. A

12 failure to meet both an undisputable impartiality to the conflict and the

13 highest standard of fairness of trial will only fuel new hate, and further

14 retaliation.

15 You may wonder, your Honours, what this all has to do

16 with the case of Dusko Tadic, the individual who stands trial today. The

17 strength of the Defence in the Tadic case will be severely affected by the

18 weakness of the Tribunal itself. Therefore, the Defence has to start by

19 considering the inherent shortcomings of the Tribunal and only then will

20 be able to present its case in its proper context.

21 The grave and onerous task of bringing to justice those

22 who are suspected of committing the most heinous crimes in the course of a

23 long and bloody conflict will arouse great emotions from all sides during

24 the trial. But the professional participants in this court, listening to

25 the witnesses, must master the ability to separate truth from lies and

Page 53

1 human error. The Tribunal has not been established to satisfy the victims

2 only, but to bring justice to all, including the accused. The Tribunal

3 must be wary of the desires for revenge and a need for a scapegoat.

4 Bringing justice to all in this first case on trial

5 before the Tribunal requires that it should not respond to the perfect

6 pressure. It should disregard the public cry for a sentence of the first

7 accused to stand trial. On the contrary, it should without dispute

8 conduct a fair trial, whatever the outcome of this case may be.

9 Justice will only be satisfied with a conviction if there

10 is certainty beyond any reasonable doubt that the man who you see sitting

11 in the dock here is the same man who committed the crimes of which you

12 will hear in the weeks to come. If, as we maintain, it cannot be

13 sufficiently proved, and Dusko Tadic is innocent of these offences, then

14 the temptation to use the lack of clarity in the law to satisfy an

15 international community hunger for a verdict of guilty must be resisted at

16 all costs. The thirst for revenge must not be satisfied at the well of

17 polluted justice.

18 I would respectfully urgently enjoin you to keep in mind

19 at all times the importance of reaching the right verdict on the evidence

20 before you on the basis of a fair understanding of the law. In this

21 respect, we must keep in mind that this is the first case which the

22 Tribunal has to try. As an experiment, it should not be conducted at the

23 expense of the defendant. Where the law of the Tribunal is not clear on

24 vital issues, these issues should unquestionably be dealt with in favour

25 of the defendant; because in a fair administration of justice there is no

Page 54

1 room for experiments with a defendant as a guinea-pig. It is the

2 responsibility of the Tribunal to protect a defendant against vague laws

3 and vague procedures. If the law is not clear, the defendant should be

4 given the benefit of protection; protection against prosecution on the

5 basis of novelties yet to be sorted out; protection against an

6 unprecedented extension of a reasonable understanding of the law.

7 In avoiding and redressing unfair interpretations of new

8 law, you have the full support of the Defence. If this Tribunal is not at

9 all times vigilant to avoid the risk of speculative and, therefore,

10 wrongful convictions, it will be responsible for causing further wrongful

11 and unnecessary suffering. The Defence is confident that the Court shares

12 the same concerns and will serve the cause of justice at all costs.

13 Your Honours, the trial of our client started in

14 unfavourable circumstances. The prosecution of Dusko Tadic started while

15 the war in Bosnia Herzegovina was still going on.

16 It was only in January of this year that it was possible

17 to enter the area for a proper investigation of the case. As long as the

18 fighting was going on, large parts of Bosnia-Herzegovina could not be

19 reached. Both parties, the Prosecution as well as the Defence, have been

20 affected by these limitations; and the risk has arisen that the trial will

21 be conducted before all the facts are known.

22 This is even more serious as one of the parties is

23 affected more heavily by this limitation than the other. All the

24 Prosecution witnesses live now outside the area. All the Defence

25 witnesses live within the area. The Prosecution may have had its

Page 55

1 problems, but the Defence has been seriously handicapped in the

2 preparation of its case. The Defence is particularly handicapped in the

3 investigation of the facts.

4 Inherent to the first case before the Tribunal is the

5 fact that there is uncertainty how to apply the law. Here two issues

6 arise: As for the crimes, the Tribunal does not provide either party with

7 a complete certainty. The trial starts today, while only last Friday the

8 Judges told our client ,"We do not know which elements are necessary to

9 prove the offences charged"; neither can the Tribunal provide the parties

10 with clear procedural law. Rules have been developed that have not been

11 tested previously and which are incomplete. It is also unique that both

12 the suitability and the contents of the Rules have not been determined by

13 a legislator but by the Judges themselves.

14 The Tribunal cannot give any guarantees as to whether its

15 Rules will be applied in the area of the war or elsewhere. Parties have to

16 wait to see whether persons or authorities in the area or elsewhere will

17 co-operate with the Tribunal. Up to now this does not seem to have always

18 been the case.

19 The Statute and the Rules do not offer any structure

20 within which the parties can achieve their aims for case preparation

21 through states and individuals who have been involved in the war.

22 For example, unlike National Courts, the Tribunal has no

23 police force of its own to bring witnesses to the hearing. In this

24 respect, the Defence is affected more heavily by the absence of such

25 powers. Experience up to now has shown that the Prosecution, due to its

Page 56

1 official status as an organ of the Tribunal, has been able to obtain

2 co-operation from national authorities. Countries other than those which

3 used to make up Yugoslavia are, so it is said, co-operating well with the

4 Prosecution. The same cannot be said for the Defence.

5 The consequence of all these unfortunate circumstances is

6 that the trial against our client begins in an incomplete setting. This

7 is not without significance for the further course of this trial, and the

8 final question which has to be asked is whether a fair trial is possible

9 at all.

10 A further problem is the lack of clearly defined criteria

11 for the prosecution of the accused. Bearing in mind the fact that not

12 everyone who might be suspected would actually be prosecuted, it is

13 unfortunate that the Prosecution has not been clear as to what criteria it

14 is applying. Thus, it appears that the prosecution of those accused is

15 not based upon established guidelines, but on arbitrary consideration such

16 as the availability of data and suspects.

17 This gives rise to the question of whether Dusko Tadic

18 would ever have been prosecuted had not the Germans come across him by

19 accident in Munich; we shall probably never know. It is clear, however,

20 that the lack of defined and public criteria has blown the case against

21 Dusko Tadic out of all proportion. Already the danger seems evident that

22 the case is viewed as a symbol of everything that happened in the area,

23 and that Dusko Tadic has been portrayed as the prototype of a war

24 criminal. It requires little argument to show that this has a

25 disproportionate effect on the evidence in the case and it may influence

Page 57

1 the judgment of that evidence.

2 If the first persons suspected of being involved in war

3 crimes are tried and only later those responsible for causing the conflict

4 in the first place (and here I hold the politicians in all the parties in

5 the former Yugoslavia responsible), then there is the danger that the

6 judgment in this first case will be unbalanced. Individual responsibility

7 does not stand by itself, but should also be judged against the background

8 of the climate created by the political elite.

9 The Tribunal's task is, therefore, far from easy. There

10 are many circumstances that make it difficult to perform your task. With

11 limited legal instruments, limited possibilities for enforcement and

12 incomplete data, there is the danger of high media exposure and low

13 quality justice.

14 Where should then the limits be drawn? It has rightly

15 been said that without a proper defence a fair trial is impossible. Under

16 normal circumstances, it is not difficult to approve the working of the

17 machinery of justice as it applies to both the Prosecution and the

18 Defence.

19 This case, this trial, though, is not normal. The

20 circumstances under which the trial takes place are especially bad. I

21 have just shown which circumstances may prevent the Tribunal from

22 fulfilling its task properly. The question, to what extent the presence

23 of the Defence justifies the assumption that there is a fair trial, has

24 been an issue from the very beginning. The real issue here is whether we

25 are able to conduct a proper defence. For the Defence, the ultimate

Page 58

1 question is whether, under all these circumstances I have put to you, a

2 fair trial is possible at all.

3 The fact that this trial is starting today does not

4 provide us with a definite answer. It should be seriously considered that

5 the conditions required for a fair trial may ultimately not be fulfilled.

6 The reasons have already been given. Uncertainty as to whether at a

7 certain stage a point is reached at which the conclusion has to be that a

8 fair trial is no longer possible is a great, great cause for concern to

9 the Defence.

10 An important consideration for the Defence has been

11 whether the trial should be postponed. Since November last year, the

12 Defence has asked for a postponement since we were not ready for the

13 trial. But it should be remembered that our client has been in detention

14 on remand for over two years now, including the German time. In our

15 opinion, a further postponement of the trial in the hope of better days is

16 no longer justified.

17 Again, where are the limits? What conditions should be

18 fulfilled? What conditions should be fulfilled now? In the Defence's

19 opinion, these limits have been crossed if we are unable to call the

20 witnesses necessary for the presentation of our case to testify. On this

21 point, no arguments on the quality of the trial should be considered, even

22 though the Prosecution might say that a fair trial does not mean a perfect

23 trial. There is no scale with "a fair trial" at the bottom and "a perfect

24 trial" at the top. In the Defence's opinion, there is only one standard

25 here. The only possible trial is a fair trial and a fair trial is the

Page 59

1 only possible trial.

2 Thus, the question is not whether a few witnesses can or

3 cannot testify; every witness called by the Defence will be called after a

4 careful consideration as to how

5 the Defence should be conducted. We have carefully selected our alibi

6 witnesses. We have notified so far 36 witnesses. The Prosecution has

7 notified us of between 88 to 120 witnesses. We hope it has been as

8 careful. Every witness selected by the Defence is of, indeed, great

9 importance. The question is not whether one of them can or cannot come.

10 Even if the Tribunal is prepared to create the circumstances (as it now

11 has done to some extent) under which it will be possible to hear the

12 witnesses called by the Defence, there is the further issue as to whether

13 they will give, in fact, evidence and that is still to see.

14 At least after this morning's rulings some relief has now

15 been provided, but the further problem of subjective fear of the

16 witnesses has not been resolved yet. The people living in this area are

17 scattered, they are threatened, they are afraid and the local authorities

18 are answerable for that. Under such conditions it is very hard to conduct

19 a fair trial.

20 Should it appear that legal and factual circumstances

21 prevent the Tribunal from finding the truth, then, in our opinion, the

22 limit of fairness is exceeded. The intention to conduct a fair trial is

23 not sufficient; the point is that all conditions for a fair trial should

24 actually be fulfilled.

25 Your Honours, as is clear from previous remarks, the

Page 60

1 uncertainty as to the law poses a great problem. If we take into

2 consideration the indictment, then two questions will play a role during

3 the process: Firstly, the vagueness of the indicted offences and,

4 secondly, the manner in which they are described in the indictment.

5 In all civilised systems of criminal law, we find the

6 principle of legitimacy. There can be no offence without a precise

7 previous legal provision. In this case this requirement of criminal law

8 is at best insufficiently met.

9 The core of the problem is that this case, unfortunately,

10 does not involve offences clearly defined beforehand, but offences assumed

11 to be punishable without the exact content being determined. What is

12 punishable is thus not based on a legislative provision but on customary

13 law.

14 Your Honours, law covered by custom and subject to change

15 may be acceptable for the international relations between states. It

16 cannot be acceptable when applied to an individual charged with criminal

17 offences.

18 This problem is not only a cause of concern to the

19 Defence, but also to the Prosecution. They have made it clear, they too

20 are uncertain what exactly they will

21 have to prove. The Defence is of the opinion that in this case the

22 contents of a criminal provision are not predetermined. The Prosecution

23 should not decide to prosecute such undefined offences and thereby expose

24 an accused to the risk of speculative prosecution.

25 In the opinion of the Defence, this is not a usual

Page 61

1 discussion on the interpretation of a certain criminal provision. This,

2 your Honours, is about the fundamental questions of what elements

3 constitute criminal offences. Here as well the special circumstances

4 under which this Tribunal is operating play a role. Due to the mix of

5 common and civil law, the problem of legality has a different consequence

6 than in either one of these systems. Since the Tribunal relies mainly on

7 the common law's accusatory system, the absence of a jury causes a

8 systemic failure.

9 If there were a jury, the judge would, after the defence

10 has been put forward, inform them as to the law applicable and give a

11 decisive answer what elements constitute the criminal offence, for only

12 then can the jury be capable of reaching a verdict. In the jury system,

13 the fact that the judge determines what law is applicable after the

14 evidence has been put forward does not pose a problem since the question

15 of guilt is only resolved by the jury afterwards.

16 In this case, however, the Judges are also the jury; your

17 Honours will determine whether the accused is guilty or not. This at

18 least gives rise to the theoretical question at which moment you, so to

19 speak, instruct yourselves; and whether parties will know this assumed

20 instruction, so that it will become clear to us what criteria you are

21 using to determine the question of guilt. Also here we have two issues.

22 If we are to assume that the criteria applied by the

23 Trial Chamber are only to become clear in the verdict, then there is a

24 danger that in putting forward the evidence the Defence cannot anticipate

25 what your Honours might consider relevant to determine Dusko Tadic's

Page 62

1 guilt. Consistency in the proceedings becomes a severe problem, and the

2 accused is exposed to the risk of a speculative trial.

3 Moreover, the Defence believes that this situation should

4 be prevented to avoid diminishing trust in the Tribunal. It would be very

5 sad if people were to think or, even worse, if the accused thought that

6 the Judges are working the other way around, first determining guilt and

7 then explaining the law.

8 The problems relating to the principle of legality do not

9 stand alone, I am afraid. Matters are made worse by the way in which the

10 indictment has been drafted. The Defence has made it known on previous

11 occasions that it considers the time frame of the indictment too broad.

12 The Defence wishes to point out that we are concerned that in the weeks,

13 and maybe even months, to come evidence or witnesses will not clarify

14 this. The Defence fears that the optimism of the Prosecution that

15 everything shall become clear when their case is presented is not

16 justified.

17 Should this not be the case, then this would lay a

18 disproportionate burden on the Defence in establishing the alibi of the

19 defendant.

20 The Defence would also like to point out that this

21 indictment puts the accused in a position of double jeopardy, a well known

22 principle in criminal justice systems, by alleging the general offence of

23 prosecution in count 1 and relying on the same allegations in counts 2 to

24 4 or, should I say now it has been withdraw, 5 to 34.

25 Finally, the Defence has a great fear of prejudice caused

Page 63

1 by the number of allegations. The Defence is concerned that separate

2 evidence on one count may be wrongly considered as evidence on another.

3 This mixture of allegations may be, if we do not take care, a recipe for a

4 miscarriage of justice.

5 Your Honours, I have already mention the problems

6 regarding accessibility and availability of evidence. The consequence of

7 this is that the Defence realises that this trial will probably not

8 provide an example of a successful search for the truth, but a very

9 limited attempt to do so.

10 The trial system developed by the Tribunal is based to a

11 large extent on an accusatory system in which both parties have the

12 opportunity to present their case.

13 This system presumes that each party is able to present

14 its case, and each party is able to do so to the same extent. As long as

15 the question of availability of witnesses has not been solved to

16 everyone's satisfaction, the Rules regarding presentation of evidence

17 seems arbitrary. At this stage, we should distinguish between the

18 pretrial proceedings and the proceedings before the Trial Chamber.

19 In the pretrial proceedings, the Defence has had to build

20 its case from that initial appearance onwards; whereas the Prosecution had

21 already built up a case before issuing the indictment. This head start is

22 a normal problem under normal circumstances, and I would not have

23 mentioned it in my opening speech had it not been for the problems which

24 have presented themselves within their proceedings.

25 The Rules provide specific provisions to enable the

Page 64

1 parties to ascertain the relevant facts. These are legal instruments

2 available other than the powers given to the Prosecution to force states

3 to co-operate in the pretrial investigation. The Defence has no power

4 whatsoever to enlist anyone's co-operation in providing relevant facts.

5 The Defence's activities preceding the trial depends solely upon the

6 voluntary co-operation of others.

7 The reality is that this Tribunal sits in North West

8 Europe. Any orders made would have no effect in the Republika Srpska.

9 The Dayton Agreement has had no effect on this situation. Article 29 of

10 the Statute is a dead letter too, since the Republika Srpska was not

11 officially recognised and the government in Sarajevo (who would formally

12 be the addressee of Article 29) did not exert any authority in the Serbian

13 parts of Bosnia-Herzegovina.

14 The Tribunal was aware of this at the pretrial stage. The

15 Prosecution was aware of this at the pretrial stage. The Defence have had

16 to bear the consequences at the pretrial stage. In other words, the

17 Tribunal and the Prosecution knew that the Defence would be working in a

18 procedural vacuum; that the Defence had to prepare a case without a single

19 legal instrument to support it.

20 Everything, therefore, that the Defence has been able to

21 achieve so far is the result of our own negotiations with authorities and

22 individuals and not of any provision of the Tribunal.

23 The pretrial proceedings have shown a serious inequality

24 of arms in that all the Prosecution's witnesses are outside the Srpske

25 Republic, and that all authorities except those of the Srpske Republic

Page 65

1 have fully co-operated with the Prosecution in this case. In the weeks

2 to come we shall see how this lack of equality of arms at the pretrial

3 stage affects the trial itself.

4 In addition, the Rules of evidence are so open that only

5 case law can determine their precise content. In these circumstances, the

6 Defence requests the Tribunal to apply principles of admissibility of

7 evidence based upon reliability.

8 Your Honours, the court will hear a great deal of

9 evidence from witnesses for the Prosecution about events which happened in

10 the long hot summer of 1992 in the Opstina of Prijedor. It is not

11 disputed that terrible things happened during the conflict in the area,

12 and particularly in the camp at Omarska. As a result of what happened,

13 all the Prosecution witnesses you will hear from have left the area and

14 are now living as refugees in other countries.

15 It is not for those of us who have not experienced such

16 things to say what effect they have on the heart and the minds of those

17 who have. It is neither the right nor the intention of the Defence to be

18 belittle the tremendous suffering about which you will hear. However, it

19 is both our right and our duty to defend Dusko Tadic against the

20 allegations made by these witnesses.

21 I have two very general observations to make, the first

22 is this: Ever since these camps were discovered by Western journalists in

23 August 1992, the international interest in events in this area in general

24 and in the camps, in particular, have been intense. There can be few who

25 failed to see and be deeply affected by the pictures of emaciated figures

Page 66

1 looking out from behind a wire fence at Trnopolje.

2 As a result of this interest, journalists have pursued

3 many of those who will be giving evidence in this court in attempts to

4 provide the world with news and stories for their readers and listeners.

5 It is our case that many witnesses have adopted the accounts of fellow

6 prisoners, having heard or read these in the media.

7 Also, when inmates of these camps were released or moved

8 on to other locations, they talked to each other about their experiences.

9 You will hear in the coming weeks and months that one witness, in

10 particular, has told his "story" concerning a notorious incident in

11 Omarska to well over half of the other witnesses claiming to have seen

12 those same events.

13 We do not require the assistance of a psychologist to

14 convince us of the importance and the power of suggestion. It is

15 something you come across in every day life. If several people witness

16 the same event, they do not all recall every detail, but when they discuss

17 the events together afterwards, a composite story emerges. Rumour becomes

18 truth. Rumour becomes truth. People convince themselves with ease that

19 they have seen and heard things which they did not and could not have seen

20 and heard. Their account is based on what others have told them. This

21 also can be a recipe for unreliability for which a miscarriage of justice

22 is made.

23 If this can happen in the most ordinary circumstances,

24 how much greater is the risk that it will happen in extraordinary ones?

25 The situation of which you will hear in the course of the Prosecution case

Page 67

1 is quite outside the experience and understanding of any ordinary person.

2 These witnesses had by their own account been forcibly evicted from their

3 homes in the course of a bloody conflict, had been separated from their

4 families and their friends, had seen many people who were close to them

5 killed by their aggressors. They were kept in appallingly cramped

6 conditions in the burning heat of a Bosnian summer with little food or

7 water, fearful at every moment of torture and death. It was in these

8 conditions that they witnessed the events of which they will come and tell

9 you at this trial. Such circumstances, your Honours, are able to provide

10 both the stuff of rumour and the need for a scapegoat.

11 It is not the fact of their suffering which is questioned

12 by the Defence, but the reliability of evidence obtained from people who,

13 apparently, witnessed the events under these conditions. Many people were

14 told, either at the time or afterwards, that Dusko Tadic had been

15 committing crimes in the camps. How many of these people have fitted

16 second-hand accounts into their own accounts, to fill gaps or identify a

17 person who they did not, in fact, see at all?

18 Your Honours, Dusko Tadic was a Serb, a Serb who lived in the

19 centre of the Muslim community of Kozarac, the community which was so

20 brutally expelled from its home during the summer of 1992. 18 months

21 later, Dusko Tadic himself went to Germany where many of his former

22 neighbours were now living. It is not difficult to imagine the reaction

23 of those people who had been forced from their homes to a neighbour who

24 was a Serb. They were Muslims, and the hatred which now existed against

25 Serbs within the Muslim community was such that to be a Serb was to be

Page 68

1 associated with a people against whom they would go at lengths to take

2 revenge.

3 The prejudice that exists in this case cannot be

4 underestimated. When

5 Dusko Tadic went to Germany in 1993, he offered himself up as an easy

6 victim to those who wanted revenge against the Serb people. It is

7 inconceivable that he would have gone to live amongst the very people he

8 is alleged to have persecuted, if their allegations were true. It is the

9 task of this court to see through the distorting glass of prejudice to

10 the truth which lies beyond. A witness who has suffered must be pitied

11 for his suffering, but he should not be believed because of his suffering.

12 It is nowhere argued that one who has suffered is for that reason more

13 likely to tell the truth; indeed, the reverse may often be the case.

14 This, your Honours, then is the Defence case, that the

15 witnesses who you will hear giving evidence against the defendant are

16 doing so, if not by inadmissible hearsay, as the result either of an

17 honest but distorted and false belief, or of prejudice against the Serb

18 people. Again, I say to you that Dusko Tadic stands charged as an

19 individual, and the crimes of others cannot and should not be laid at his

20 feet.

21 Your Honours, in presenting the Defence case, we will not

22 be presenting evidence relating to camps because it is not for the Defence

23 to dispute what happened in the camps. The Defence case is simply that

24 Dusko Tadic was not involved in the camps in any capacity. I will present

25 evidence that Dusko Tadic had no access to the camps and that he was not

Page 69

1 in a privileged position suggested by the Prosecution this morning.

2 In preparing the defence, we have struggled with the

3 hostility and suspicion with which the Tribunal is viewed in the Serb

4 Republic and, in particular, in the Prijedor area. Those in power in this

5 area have blocked avenues of investigation, not only to the Prosecution,

6 but also to the Defence. It might be thought that they would be eager to

7 help Dusko Tadic in his defence at this trial and treat him as one of

8 their own. This, your Honours, has not been the case. The Defence of

9 Dusko Tadic has been prepared with little or no help from the Prijedor

10 authorities, and there have been active attempts to prevent us from

11 obtaining evidence on behalf of our client to prove his innocence.

12 Witnesses in the area who held any police or military

13 authority have been barred from talking to the Defence.

14 False rumours have been promulgated about the desire of

15 the Tribunal to arrest anyone who came forward to give evidence. Our

16 activities have been closely monitored, and witnesses who are known to

17 have been co-operating with us have suffered threats to themselves and

18 their families. One high ranking official said, and I quote, "No one can

19 order me to allow the witnesses for the Defence to be investigated in my

20 area. No witness from my area can make a statement without my consent. I

21 can be replaced from my post as head, but in that case I will cede the

22 whole region to Croatia. We have over 4 million tonnes of iron ore in

23 storage which we will send to Sisak to be processed and we'll get the

24 money".

25 After having been asked whether the people of Krajina

Page 70

1 would agree to the succession, he said: "Who is asking the people? Fuck

2 the people!"

3 May I repeat the quote which has emerged from the lips of

4 the Prosecution in recent months: "A fair trial is not a perfect trial".

5 Your Honours, we have become aware, indeed, of the impossibility of

6 anything approaching a fair trial in such compromising circumstances. Our

7 aim has been to ensure that at least a fair trial would not be impossible

8 from the very beginning.

9 Despite the difficulties we have encountered and continue

10 to encounter, we have persisted and we have succeeded in building a

11 strong and convincing Defence case. We believe it will be impossible for

12 you to convict Dusko Tadic if we will be able to present the Defence case

13 to its full extent. We have done this to satisfy our determination that

14 Dusko Tadic will against all the odds have a fair trial which produces

15 what we believe is the only possible verdict in this case, a verdict of

16 not guilty.

17 Through our investigators, we have found some of the

18 witnesses who were genuinely with Dusko Tadic at the time these crimes

19 were committed. You will hear how Dusko Tadic avoided his military draft.

20 You will hear how he escaped from his home in Kozarac before 24th May

21 with his wife and family to stay in the relative safety of Banja Luka.

22 You will hear how the following month he secured a job in the traffic

23 police of Prijedor, and you will hear how he worked every day in regular

24 shifts together with others. You will hear how he then became involved in

25 the local commune whose task was assisting refugees and attempting to

Page 71

1 rebuild the town of Kozarac.

2 This evidence, your Honours, will be given to you by

3 ordinary people, those who worked with him, those who lived with him,

4 those who could see how he spent his time during the period in which this

5 trial is concerned. All this evidence will be supported by documentary

6 evidence such as duty lists to support the evidence given by witnesses for

7 Dusko Tadic's position in the reserve police. We will present evidence

8 that Dusko Tadic lived as a normal man alive as possible under these

9 difficult times, that he was on duty as a reserve policeman who was

10 engaged in the rebuilding of his scattered community throughout the time.

11 With regard to his community, the Defence will assert

12 that Dusko Tadic played no part whatsoever in rounding up and attacks on

13 civilians. Naturally, the Prosecution will say that this alibi does not

14 account for every minute of Dusko Tadic's time between May and December

15 1992; our answer to this is that no alibi could. To find an alibi to

16 cover a period of eight months is a difficult matter, but the Defence is

17 convinced that once the court has heard the accounts we will present of

18 what Dusko Tadic was really doing during these months, you will see that

19 we have provided impressive evidence to account for the whereabouts of

20 Dusko Tadic during this period.

21 The second limb of our defence will be the evidence of

22 witnesses who will testify as to the kind of person Dusko Tadic was. Here

23 they will tell you he was a man who had lived all his life in a Muslim

24 community -- one of few Serbs in a town with a population of some

25 thousands -- a man, they will tell you, who had many Muslim friends and

Page 72

1 who was distressed when people on both sides started displaying

2 nationalistic tendencies and shunning their former friends. The

3 Prosecution attempts to explain the fact that there is no evidence of any

4 animosity shown by Dusko Tadic to Muslim people before the conflict by

5 suggesting that he was some kind of spy or even fifth columnist. This,

6 your Honours, is a feeble smoke screen to cover the deficiencies in their

7 case.

8 Many of his countrymen, though, see Dusko Tadic as a

9 deserter who refused to fight for his country, and who left his village

10 when the going got tough.

11 The third limb of the defence is the evidence of those

12 who were involved in these camps and who can testify that Dusko Tadic was

13 not and could not have been there.

14 It is not hard to imagine why it has been difficult for

15 the Defence to obtain statements from people in this regard. These are

16 people who, whether or not they had any personal involvement in the crimes

17 that took place, are fearful for their own security, both from the

18 prosecution by this Tribunal and from reprisals at home if they give

19 evidence on matters which the authorities in the area wish to keep silent.

20 Through these witnesses, your Honours, the Defence can

21 present you with evidence which, we believe, will convince you that

22 although these camps existed, although they were places in which

23 unspeakable crimes occurred, these crimes were not

24 and could not have been committed by the defendant. It is not the

25 responsibility of the Defence to contest the political agenda of those who

Page 73

1 controlled the Opstina of Prijedor.

2 Your Honours, I told you of the problems under which the

3 Defence has laboured in order that the realities of the situation in the

4 Opstina Prijedor are clearly before you. If you have at any time any

5 problems arising from the Defence, you should resolve them by remembering

6 that for every witness we produce for you at this trial, we could tell you

7 of another 10 who could not or would not talk to us. In addition to the

8 factual evidence we will put forward, the Defence will present you with

9 evidence to support its view of the character of the conflict.

10 Your Honours, I have come to the end of the opening

11 statement of the Defence.

12 We have informed you of our grave concerns about the

13 proceedings of this trial. There are many problems which have not been

14 solved and, unfortunately, there are many indications that these problems

15 will not be solved.

16 We are, therefore, deeply concerned about the quality of

17 this trial. We fear that eventually it will not meet the demands for

18 justice.

19 We are standing, your Honours, on the edge of a fair

20 trial. Do not push us over that edge. Help us to stay on the right side

21 and to put forward our case. If you enable us, if you enable our

22 witnesses to testify, you will not convict Dusko Tadic.

23 Thank you.

24 THE PRESIDING JUDGE: Thank you, Mr. Wladimiroff. Mr. Niemann, are you

25 ready to present your first witness? I understand it is Dr. Gow.

Page 74

1 MR. NIEMANN: I am ready.

2 THE PRESIDING JUDGE: Mr. Niemann, then would you present your first

3 witness, please?

4 MR. NIEMANN: If your Honour pleases. I call Dr. Gow.

5 DR. JAMES GOW, called.

6 THE PRESIDING JUDGE: Dr. Gow, would you stand there, please? There should

7 be an oath in front of you. I will ask that you, please, take that oath.

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

9 truth and nothing but the truth.

10 (The witness was sworn)

11 THE PRESIDING JUDGE: Thank you. You may be seated.

12 Examined by MR. NIEMANN

13 Q. Dr. Gow, are you a political scientist with the positions of

14 Lecturer in the Department of War Studies, Kings College, London, and a

15 Research Associate of the Centre for Defence Studies in the University of

16 London?

17 A. I am.

18 Q. Formerly, were you a Research Officer at the Centre for Defence

19 Studies and before that a lecturer on Soviet and Eastern European Affairs

20 at the Hatfield Polytechnic in the United Kingdom?

21 A. Yes.

22 THE PRESIDING JUDGE: Let me just interrupt, if I may, for one moment.

23 Would you state your full name, please, just for the record, unless I

24 missed it.

25 THE WITNESS: I am Andrew James William Gow.

Page 75

1 THE PRESIDING JUDGE: Thank you. I am sorry, Mr. Niemann.

2 MR. NIEMANN: Do you hold the Degree of PhD, Doctor of Philosophy, from

3 the University of London where you prepared your doctorial thesis on

4 Yugoslavia at the School of Slavonic Studies and Eastern European studies?

5 A. That is true.

6 Q. For the past several years has your work been concentrated on former

7 Yugoslavia, particularly its military political affairs, and have you

8 written and lectured extensively about this area?

9 A. I have.

10 Q. Is your evidence based upon your personal knowledge and drawn from

11 your own work and that of other recognised scholars in this field?

12 A. It is.

13 Q. Have you published reports, military and civilian writings, speeches

14 and other official documents from the area of the former Yugoslavia?

15 A. I have used documents of those kinds in preparing evidence, yes.

16 Q. Do you have a knowledge of the relevant Yugoslav languages or the

17 languages used in the former Yugoslavia?

18 A. I have some knowledge of Serbo-Croat and some knowledge of Slovene.

19 Q. Have you based your -----

20 JUDGE STEPHEN: I am finding it very hard to hear.

21 MR. NIEMANN: I am sorry, your Honour.

22 JUDGE STEPHEN: I would wonder if the witness could speak up?

23 MR. NIEMANN: Dr. Gow, could you please raise your voice so that you are

24 heard.

25 THE PRESIDING JUDGE: The microphone is helpful, but it does not really

Page 76

1 help us too much in the courtroom, so you really have to raise your voice

2 even though you are speaking in the microphone.

3 MR. NIEMANN: Dr. Gow, have you based your research on conversations with

4 knowledgeable persons and witness statements and documents, some of which

5 were made available to you by the Office of the Prosecutor?

6 A. That is true.

7 Q. Since 1988 have you published numerous books and articles?

8 A. I have.

9 Q. Are the details of those books, monographs, articles and other

10 writings that you have published been presented in a schedule?

11 A. I believe so, yes.

12 Q. I would ask now that there be displayed on the computer screen the

13 computer reference 1/1 to 1/4. If your Honours please, as promised, I

14 have prepared for my friends in the Defence and for your Honours a copy of

15 an index of the documents that will be used and referred to by Dr. Gow

16 which may assist in following the exhibits as they are referred to. If I

17 may, I hand those documents. (Handed)

18 THE PRESIDING JUDGE: Mr. Niemann, now what we are receiving is an index

19 to the documents that Dr. Gow will be using?

20 MR. NIEMANN: Yes.

21 THE PRESIDING JUDGE: I am wearing glasses. They are relatively new

22 glasses. I am still having difficulty seeing the print on this monitor.

23 Is it possible that we could generate a hard copy of these at this time or

24 not?

25 MR. NIEMANN: I understand at a subsequent time, but we may be able to

Page 77

1 have it slightly increased in size.

2 THE PRESIDING JUDGE: That looks better, thank you.

3 MR. NIEMANN (To the witness): Dr. Gow, just looking at the document that

4 now appears

5 on your screen -- I would ask that this document be scrolled through

6 starting from the first page of it and slowly looking at it as we go

7 through but in enlarged form -- when you look at that, is this the

8 schedule that you just referred to a moment ago in your evidence relating

9 to the articles that you have published and other writings in relation to

10 former Yugoslavia? Perhaps you might do it a little more slowly, please?

11 Dr. Gow, could you just acknowledge that as we progress through?

12 A. This looks like the schedule to which I have just made reference.

13 Q. Is this the final page of the schedule?

14 A. I am afraid at the moment I do not see the schedule so ..... Yes,

15 excuse me, I had the wrong screen on.

16 THE PRESIDING JUDGE: Dr. Gow, I think you are asking the same thing that

17 we are asking for. We are asking for a hard copy of this document. This

18 has been marked for identification purposes as exhibit 1, I gather?

19 MR. NIEMANN: Yes, your Honour, we will be seeking to tender.

20 THE PRESIDING JUDGE: Does the Defence have a hard copy of it?

21 MR. WLADIMIROFF: Not yet.

22 THE PRESIDING JUDGE: Do you need one?

23 MR. WLADIMIROFF: No, your Honour, this is not quite disturbing in terms

24 we need to read every word of it.

25 THE PRESIDING JUDGE: OK. Very good. You may proceed.

Page 78

1 MR. NIEMANN: Thank you, your Honour. Your Honours, I can produce a hard

2 copy after the break.

3 THE PRESIDING JUDGE: Very good.

4 MR. NIEMANN (To the witness): Dr. Gow, are you looking at the final page

5 of that document?

6 A. I am, yes.

7 Q. Does that refer to places where you have, in fact, delivered

8 lectures from time to time?

9 A. It does.

10 Q. I tender that document, your Honour, and give the undertaking that I

11 will provide a hard copy of the original.

12 THE PRESIDING JUDGE: Is there any objection from the Defence?

13 MR. WLADIMIROFF: No, your Honour.

14 THE PRESIDING JUDGE: Exhibit 1 will be admitted.

15 MR. NIEMANN: Dr. Gow, concerning the former Socialist Federal Republic of

16 Yugoslavia prior to 1991, can you tell the court about the political

17 composition of that federation?

18 A. The Socialist Federative Republic of Yugoslavia comprised six

19 republics and two autonomous provinces within the Republic of Serbia. The

20 Republic of Serbia was the largest of the six republics. The others were

21 Slovenia, Croatia, Bosnia and Herzegovina, Montenegro and Macedonia.

22 MR. NIEMANN: In the course of my opening this morning, your Honours, I

23 showed you a document which I will now ask Dr. Gow to look at. Might the

24 document No. 2 be shown on the screen, 2-1?

25 (To the witness): Dr. Gow, is that a map of the former Yugoslavia?

Page 79

1 A. This is a map of the territories of the former Socialist Federative

2 Republic

3 of Yugoslavia showing the boundaries of the republics and the boundaries

4 of the two autonomous provinces within Serbia.

5 Q. Was this map prepared under your instructions?

6 A. It was prepared at my instruction by the Office of the Prosecutor.

7 Q. Your Honours, I tender that map.

8 THE PRESIDING JUDGE: Is there any objection from the Defence?

9 MR. WLADIMIROFF: Noun whatsoever, your Honour.

10 THE PRESIDING JUDGE: Exhibit 2 will be admitted.

11 MR. NIEMANN (To the witness): Dr. Gow, could you tell the Trial Chamber

12 of the ethnic composition of the Socialist Federal Republic of Yugoslavia

13 prior to 1991?

14 A. The Socialist Federative Republic of Yugoslavia, if I may, SFRY, was

15 a complex mixture of populations. The largest groups were the Serbs, the

16 Croats, the Slovenes, Macedonians and the Bosnian Muslims. There were a

17 number of smaller groups usually classified as minorities, including

18 Hungarians, Slovaks, a series of others, Vlahs, and so forth.

19 Q. Dr. Gow, would you look at the map that will now be displayed on

20 your monitor, 2/2? Dr. Gow, what is this a map of?

21 A. This is a map showing the territories of the former SFRY, as was, and

22 on it is indicated

23 the single largest ethnic group in any particular area across the

24 territories of the republics of the SFRY. As indicating the single

25 largest group, it does not necessarily indicate an absolute majority, but

Page 80

1 simply the single largest group within any particular area.

2 Many parts of the territories of the SFRY had very mixed

3 populations, particularly in Bosnia and Herzegovina, so where it shows,

4 where the colour, for example, the blue indicates in this case the

5 presence, for example, of Muslim populations in Bosnia, that does not mean

6 that the Muslims were the absolute majority necessarily in those areas,

7 and the same for the other colour codings in the scheme.

8 Q. Dr. Gow, at whose direction was this particular map prepared?

9 A. This map was prepared at my direction. It was prepared by the Office

10 of the Prosecutor.

11 Q. From what was it compiled?

12 A. It was compiled from information derived from the 1981 census taken

13 throughout the territories of the SFRY.

14 MR. NIEMANN: I tender that map, if your Honours please.

15 THE PRESIDING JUDGE: Is there any objection to Exhibit 3?

16 MR. WLADIMIROFF: No, your Honour.

17 THE PRESIDING JUDGE: Exhibit 3 will be admitted.

18 MR. NIEMANN: Might the computer document 1/5 be now brought up on the

19 screen,

20 please? (To the witness): Dr. Gow, I would ask you to look at your

21 monitor now. You see that document, Dr. Gow? Can you tell me what it is?

22 A. It is a schedule indicating the share within the total population of

23 the SFRY of each of the main ethnic groups within the former Yugoslavia.

24 The first column is based on the figures from the 1981 census; the second

25 is based on the 1991 census. You will see that for the most part there is

Page 81

1 broadly no change in the period of 10 years, although I believe if you do

2 scroll down towards the bottom you will see that there was a noticeable

3 increase in the share of the proportion of Albanians within the total

4 population of the SFRY.

5 Q. At whose direction was this document prepared?

6 A. This document was prepared at my direction by the Office of the

7 Prosecutor.

8 Q. From what was it compiled?

9 A. It was compiled from the results of the 1981 and 1991 censuses in the

10 SFRY and was derived in this particular form from minutes of evidence

11 submitted to the House of Commons, Foreign Affairs Committee, in the

12 United Kingdom.

13 MR. NIEMANN: I tender that document, your Honour.

14 THE PRESIDING JUDGE: Is there any objection from the Defence?

15 MR. WLADIMIROFF: No, your Honour.

16 THE PRESIDING JUDGE: Exhibit 4 will be admitted.

17 MR. NIEMANN (To the witness): Dr. Gow, was any ethnic group wholly

18 contained in any one republic?

19 A. The SFRY was comprised of the six republics in the various

20 communities. No group was entirely contained within one single republic

21 of the SFRY, although the Republic of Slovenia was by far and away the

22 most homogeneous ethnically of the republics with something around 90 per

23 cent of the population being Slovene. In the other republics, in Serbia,

24 around two-thirds of the population were Serbs; in Croatia, around

25 three-quarters of the population were Croats; in Bosnia, the share was

Page 82

1 around 44 per cent Muslims, 30 or so, 33 per cent Serbs, 17 per cent

2 Croats. So you see that no single ethnic group was contained within the

3 boundaries of any one of the republics.

4 Q. Perhaps in conjunction with that, might document 1-6 be put on the

5 screen and perhaps the second half of that document might now be shown?

6 Going back to the first half, Dr. Gow, just looking at the document on

7 your screen, what is this document?

8 A. This document shows the percentage share of the population within

9 each of the republics of the single largest group in that republic on the

10 basis of data from the 1981 census. So you will see the first

11 indications, the Republic of Slovenia was 90.5 per cent Slovene,

12 reflecting, I think, the statement that I gave before; three-quarters of

13 the population of Croatia were Croats; if you move down to the lower part

14 of the schedule, you will see that around two-thirds of the total

15 population of Serbia were Serbs, but, of course, you will note that if

16 Serbia, taken without the two autonomous provinces, is looked at, the

17 proportion rises to 85.4 per cent. The figures I indicated, around 44 per

18 cent of the share of the Bosnian population were Muslims; that would be

19 according to the 1991 census data, but here on the 1991 data it was around

20 39.2 per cent.

21 Q. Again, Dr. Gow, was this document prepared at your direction?

22 A. It was.

23 MR. NIEMANN: I tender that, your Honour.

24 THE PRESIDING JUDGE: Any objection from the Defence?

25 MR. WLADIMIROFF: No objection, your Honour.

Page 83

1 THE PRESIDING JUDGE: Exhibit 5 will be admitted.

2 MR. NIEMANN (To the witness): Dr. Gow, I would ask you now to look at the

3 document

4 that will be displayed on your monitor. Might document computer No.

5 1-7 to 1-8 be displayed? Just holding it there for a moment. Dr. Gow, do

6 you recognise this document?

7 A. I do.

8 Q. What is it?

9 A. It is a copy taken from the minutes of evidence of the Foreign

10 Affairs Committee Report in November, I think in November 1991. I made

11 reference to it earlier in saying that some of the information in the

12 schedules was derived from this source.

13 Q. Perhaps the second half of the document could be now displayed for

14 the sake of completeness? Are these the schedules which you relied on

15 when you prepared the reports?

16 A. They are.

17 Q. Could you scroll through, please, to the next part of the document?

18 Yes. I tender that document, your Honours.

19 THE PRESIDING JUDGE: Is there any objection from the Defence?

20 MR. WLADIMIROFF: None whatsoever.

21 THE PRESIDING JUDGE: This is listed as 1/7-1/8. Will that become Exhibit

22 6?

23 MR. NIEMANN: 6, your Honour.

24 THE PRESIDING JUDGE: Should I refer to it as Exhibit 6 being admitted?

25 MR. NIEMANN: That is the better reference, your Honours. Perhaps I might

Page 84

1 just assist your Honour there; the numbers there are computer numbers

2 which, apparently, assists with them locating it within the computer. The

3 numbers 1/7 to 1/8 indicates the number

4 of pages.

5 THE PRESIDING JUDGE: Two pages, OK. Very good. These exhibits have been

6 exchanged, that is, you have provided the Defence with all of these

7 exhibits, of course?

8 MR. NIEMANN: Yes.

9 THE PRESIDING JUDGE: Very good. Exhibit 6 will be admitted.

10 MR. NIEMANN (To the witness): Dr. Gow, did the 1991 census show the

11 ethnic composition of the various republics in the Yugoslavia?

12 A. It did.

13 Q. According to that census, what was the population of Bosnia?

14 A. The population of Bosnia and Herzegovina was a little over 4 million,

15 I think about 4.1 million, and of that total population 44 per cent were

16 Slav Muslims, 31 per cent were Bosnian Serbs, and around 17 per cent

17 Bosnian Croats and there were small groups of others.

18 THE PRESIDING JUDGE: Is that according to this Exhibit that we are

19 looking at? Is that true?

20 MR. NIEMANN: Where do you basically derive that sort of information from,

21 Dr. Gow?

22 A. That information is derived from census returns. I am not sure if

23 they are included in the schedule here -- maybe if we could scroll back, I

24 could check -- but from other documents that we have. These are taken --

25 these figures seem to be purely for 1981. If you take the table -- I am

Page 85

1 not sure. There you have the comparative figures for the totals from 1991

2 with the reservation on the Albanians being expressed.

3 Q. This is the table 2 that appears on the screen now; is that right?

4 A. That is, yes.

5 Q. It provides a date, 1981, at the top and then there is above 1981 a

6 number in relation to the Serbs, that is 8.14, is it?

7 A. Yes.

8 Q. Is that the population?

9 A. That is the total number of Serbs within the territories of the SFRY,

10 according to that 1981 census, and in the right-hand column you have the

11 total figures for the 1991 census.

12 Q. Expressed beside that is the percentage; is that correct?

13 A. That is correct.

14 Q. Then it goes down through the various national groups. Dr. Gow, what

15 language or languages do the various ethnic groups speak in the former

16 Yugoslavia?

17 A. The principal language spoken on the territories of the former

18 Yugoslavia was known as Serbo-Croat, spoken by around 80 per cent of the

19 population. Two related but separate Slavonic languages were spoken,

20 Slovene by the Slovenes, Macedonian by the Macedonians. The Albanians in

21 the southern parts of the country, particularly in Serbia, spoke Albanian

22 and other groups, Hungarians, for example, would speak Hungarian, although

23 many of them would also speak Serbo-Croat as well.

24 Q. What, if any, are the regional variations in the languages of the

25 former Socialist Federal Republic of Yugoslavia?

Page 86

1 A. Although Serbo-Croat was regarded as a single language by

2 philologists, there were variations between the eastern and western

3 variants. For example, the Serbian part of the old Yugoslavia in the east

4 would use the Cyrillic script, whereas the western variant in Croatia

5 would use the Latin script; the Cyrillic script being like Russian or

6 Bulgarian and the Latin script being like French or Italian, the kind of

7 script that we would use in English.

8 There were also slight regional variations in the way

9 things were said and variations in vocabulary. This has led some people

10 to argue for the existence of separate languages on a socio-linguistic

11 language, I understand, although I am not an expert in linguistics.

12 Q. Turning to the question of religion, Dr. Gow, were there any

13 variations in the religious beliefs of the various ethnic groups in the

14 Socialist Federal Republic of Yugoslavia?

15 A. There were. The various groups were the Orthodox Church, the Serbian

16 Orthodox Church, also later the Montenegrin and Macedonian Orthodox

17 Churches, being again like the Greek Orthodox or Russian Orthodox Church

18 but with its own prelate. The western territories, in Croatia and in

19 Slovenia, Roman Catholicism was the dominant religion, and in some parts

20 of the country, in southern Serbia, among the Albanians in the Kosovo

21 province within Serbia and among the Slav Muslims in the border areas of

22 Montenegro and Serbia and in Bosnia and Herzegovina, Islam was taken as

23 the cultural and religious -- was the religious characteristic, the

24 dominant religion.

25 Q. Dr. Gow, earlier in your evidence you spoke of the population

Page 87

1 distribution of the Socialist Federal Republic of Yugoslavia.

2 Concentrating now more specifically on the Republic of Bosnia-Herzegovina,

3 are you aware of the variations in the population distribution of this

4 republic since 1991?

5 A. I am aware that there has been significant displacement of the

6 population in Bosnia and Herzegovina since 1991.

7 Q. Could you just look for a moment for me, please, at the document

8 that will now be displayed on the screen, 1-9, and perhaps the bottom half

9 of that could be shown in large form? Dr. Gow, what is this particular

10 document we are now looking at?

11 A. It is a table which indicates the change in the population

12 distribution within particular areas throughout Bosnia and Herzegovina

13 since 1991. You will see in the left-hand column a series of regions

14 indicated. In the second column, ethnicity is indicated. The third

15 column shows the 1991 census figures for each group, ethnic group, within

16 those particular regions. The final column shows the figures in 1994 for

17 the ethnic share within a particular region, and those figures are

18 derived, the 1994 figures are derived, from UNHCR reports.

19 Q. At whose direction was this document prepared?

20 A. This document was prepared at my direction by the Office of the

21 Prosecutor.

22 Q. We will just look at the bottom section of that document now, if we

23 could? Is any one particular region, the variation in numbers, more

24 significant than others, Dr. Gow?

25 A. I think you will see that in a number of the regions there has been a

Page 88

1 significant change. If you look, for example, in the schedule, the part

2 of the schedule that is being shown at the moment, second from the bottom

3 is northern Bosnia and you will see that in that area there has been an

4 increase of almost 100,000 of the Serb population in that area, but in the

5 same time there has been a very significant decrease in the Croat and

6 Muslim communities, the Croat community dropping, as you can see, from

7 180,000 to 30,000 and the Muslims in that area dropping from 355,000 to

8 40,000.

9 MR. NIEMANN: I tender that document, your Honour.

10 THE PRESIDING JUDGE: Any objection to the Exhibit 7?

11 MR. WLADIMIROFF: No, your Honour.

12 THE PRESIDING JUDGE: Exhibit 7 will be admitted.

13 MR. NIEMANN (To the witness): Dr. Gow, would you look at the next

14 document, please?

15 JUDGE STEPHEN: If I can ask a question? I am not quite clear how the

16 census was taken in the troubled times of 1994 as, apparently, it was.

17 Was it a complete census?

18 MR. NIEMANN: I will direct the question to the witness about that, your

19 Honour. I was about to move on to that, I think. Perhaps you heard what

20 His Honour has said, can you assist us in how those figures were derived?

21 A. If I may clarify, I believe I already said, but to be very clear, the

22 1994 figures are derived from UNHCR reports, not from censuses being

23 taken. So, the United Nations High Commissioner for Refugees, the agents

24 in the area all working with the communities and designating the number of

25 people from each community they were working with. This is not a census

Page 89

1 taken by State authorities.

2 JUDGE STEPHEN: Thank you.

3 MR. NIEMANN: I think following on from that, Dr. Gow, could you look at

4 the next document which is shown on the screen?

5 THE PRESIDING JUDGE: May I just follow up because the pre-war column on

6 Exhibit 7, you indicated, was 1991. I gather that was an official census?

7 THE WITNESS: That was the official census taken by the Federal

8 Statistical Office in Belgrade.

9 MR. NIEMANN: Might the next document be shown, 1-10 to 1-11, and could

10 the front page of that be expanded? Dr. Gow, firstly, just looking at the

11 front page of the document you see now on the screen, can you tell the

12 Chamber what the document is?

13 A. It is a document produced by the United Nations High Commissioner for

14 Refugees, and it is the kind of information that they produce from time to

15 time to inform people of their activities and of the situation in areas

16 where they are operating. This particular one is information on former

17 Yugoslavia from September 1994.

18 Q. Is it related to the previous exhibit that you referred to?

19 A. The information which we were just discussing on the basis of the

20 share of communities in particular regions was derived from this document.

21 Q. Perhaps you might go to the second page of this particular

22 document, 1/11? Dr. Gow, are these the population estimate variations

23 which you refer to?

24 A. These are.

25 MR. NIEMANN: I tender that document, your Honour.

Page 90

1 THE PRESIDING JUDGE: Is there any objection?

2 MR. WLADIMIROFF: No, your Honour.

3 THE PRESIDING JUDGE: Exhibit 8 will be admitted.

4 MR. NIEMANN (To the witness): Dr. Gow, would you please look at the next

5 document that I have displayed on the screen, document 2/3. What is that

6 a map of?

7 A. That is a map which indicates the directions in which large numbers

8 of people took flight from the territory of Bosnia and Herzegovina in the

9 course of 1992, you will see, going into the neighbouring states, into

10 Croatia, into Montenegro and into Serbia. The bulk of those people,

11 displaced people, were in three categories; those who were displaced

12 within Bosnia, those who moved into neighbouring states and those who went

13 into states further afield in western Europe and around the world.

14 Q. When you say it indicates that, is that indicated by the arrow that

15 appears there, various arrows, that you see?

16 A. That is the case.

17 Q. What does the green section that is highlighted there indicate?

18 A. The green section highlighted indicates areas under Serbian control

19 at that time within the Republic of Croatia.

20 Q. Dr. Gow, was this particular map prepared under your direction?

21 A. This map was prepared at my direction by the Office of the

22 Prosecutor.

23 Q. From what did you compile the information which you put on this

24 map?

25 A. The information was derived again from the UNHCR reports to which I

Page 91

1 made reference.

2 MR. NIEMANN: I tender that document.

3 THE PRESIDING JUDGE: Any objection with respect to 9?

4 MR. WLADIMIROFF: No objection.

5 THE PRESIDING JUDGE: May I ask you just a question with respect to 9? 9

6 will be admitted. There is no arrow, I gather, coming from Prijedor, is

7 that correct, unless I am to consider that the arrow to the right would

8 include Prijedor? I am sorry, Dr. Gow, help me.

9 THE WITNESS: You are correct to say that there is no arrow coming

10 directly from Prijedor. The arrows are meant to be indicative only; they

11 are not giving specific relation to any individual location, and people

12 from Prijedor were, indeed, moving out northwards into Croatia as the

13 arrow a little bit to the right would indicate.

14 MR. NIEMANN (To the witness): Dr. Gow, is there an electronic pencil

15 there that, perhaps, you might be able to assist Her Honour by referring

16 to things on the side of the computer? Perhaps you might just indicate

17 where the people of Prijedor generally would have moved out of the region?

18 A. As far as I am able to say, the people from Prijedor -- Prijedor is

19 there -- would have been moving northwards into Croatia. Many of them

20 also moved, I believe, westwards

21 toward the Bihac area which had a predominantly Muslim population, and

22 which remained that way throughout most of the war. I hope my little

23 arrows are of some clarification. If not .....

24 Q. Thank you.

25 THE PRESIDING JUDGE: So they would have moved -----

Page 92

1 THE WITNESS: So people would be moving for the most part in those

2 directions, I believe.

3 THE PRESIDING JUDGE: Who were you talking about?

4 A. These predominantly would be Slav Muslims who were the largest group

5 to move out of that area, as was indicated by my reference to the schedule

6 area earlier on. It would be unfair to say that only Slav Muslims were

7 moving from this area. People in all areas -- there were people of all

8 communities being displaced in most areas. The difference is the numbers

9 involved and the scale.

10 THE PRESIDING JUDGE: Thank you, Dr. Gow.

11 MR. NIEMANN: Dr. Gow, I would like you now, please, if you would, to

12 return to the historical political background of the former Yugoslavia.

13 When was the entity known as Yugoslavia first proclaimed?

14 A. It was proclaimed on 1st December 1918.

15 Q. I now wish to take you through a series of documents, a series of

16 maps, in connection

17 with the development of the Federal State of Yugoslavia. The first

18 document I would ask you to look at is document 2-4, if you would, please?

19 Dr. Gow, firstly, what is this a map of?

20 A. This is a map showing the territories which went to make up the

21 kingdom of Serbs,

22 Croats and Slovenes when it was formed on 1st December 1918, although I

23 should also point out that that formation was not formally consolidated

24 for another three years. If you read the map, you are able to see the

25 evolution of the kingdom of Serbs, Croats and Slovenes, later renamed

Page 93

1 Yugoslavia.

2 If I may try to make use of this gadgetry: First, there

3 was roughly for most of a period of 500 years a dividing line between two

4 empires which I will broadly indicate there. To the west and north was the

5 Austro-Hungarian Hapsburg Empire; to the east and the south was the

6 Ottoman (Turkish) Empire.

7 Q. Thank you. I tender that.

8 A. If I may continue, but I was being beaten by the gadgetry. Thank you.

9 In the course of the 19th century, there were some changes. First, the

10 border between the two Empires moved from being the border between --

11 along the River Drina between Bosnia and Herzegovina and Serbia indicated

12 there, broadly.

13 Q. Perhaps you might show us again on that?

14 A. I will indeed.

15 Q. The River Drina, you were just referring to?

16 A. Here. The border changed from being roughly the border between the

17 River Drina forming the border between Serbia and Bosnia-Herzegovina to

18 being the borders between Bosnia and Herzegovina and present-day Croatia.

19 In 1878, Austria took up occupation of Bosnia and

20 Herzegovina and so, therefore, it was transferred from what formally in

21 1908, but de facto in 1878, from one Empire to the other.

22 In the course of the 19th century, Serbia began to become

23 independent from the Turkish Ottoman Empire. Serbia, you see, the

24 coloured areas indicated on the right-hand side of the map. Between 1814

25 and 1878, narrow Serbia, indicated by the darker green and by the line I

Page 94

1 am now trying to draw, became independent de facto in 1878 wholly from the

2 Ottoman Empire.

3 In the course of the Balkan Wars of 1911 to 1913, the

4 territory of Serbia expanded to include the areas which now form Kosovo

5 and Macedonia to the south and west and at the same time the area of

6 Montenegro which had been independent more or less throughout the whole

7 of this period also expanded to form a common border with Serbia.

8 Those were the territories which went to make up the

9 kingdom of Serbs, Croats and Slovenes when it was proclaimed in 1918.

10 Q. Was this map prepared under your direction and supervision?

11 A. It was.

12 MR. NIEMANN: I tender this map.

13 THE PRESIDING JUDGE: Is there any objection?

14 MR. WLADIMIROFF: No objection, your Honour.

15 THE PRESIDING JUDGE: Exhibit 10 will be admitted. Perhaps now would be a

16 good time for us to take a recess. We will stand in recess until 4

17 o'clock.

18 (3.20 p.m.)

19 (The court adjourned for a short time)

20 (4.00 p.m.)

21 THE PRESIDING JUDGE: Before Dr. Gow begins again, we were discussing how

22 we might handle some of the exhibits, particularly the exhibits that Dr.

23 Gow puts markings on. I understand that with our technological system that

24 when the markings are put on they can be made permanent.

25 MR. NIEMANN: Yes, your Honour.

Page 95

1 THE PRESIDING JUDGE: So, in some instances, the Judges are interested in

2 having those exhibits on which there has been a marking made, made an

3 additional exhibit. So, for example, the one where Dr. Gow drew the

4 arrows reflecting where persons went from Prijedor, that was Exhibit 5,

5 was it -- no.

6 MR. NIEMANN: Exhibit 9, I think, your Honour.

7 THE PRESIDING JUDGE: Yes, yes, map of routes. That was one that was

8 helpful to us. So could you then make that the one with the markings 9A

9 or how would you suggest it be handled?

10 MR. NIEMANN: If your Honours have no objection, I think probably the

11 easiest way is to make it part of the exhibit, if that is OK, and we call

12 it just part of Exhibit 9. What I will do now is that every time Dr. Gow

13 makes a marking, I just have to request the technician people to make a

14 copy of that and incorporate it as part of the exhibit.

15 THE PRESIDING JUDGE: The only possible objection -- I do not know; I will

16 hear from the Defence -- is that you have received a copy of Exhibit 9 and

17 I am sure you have discussed that and perhaps you may not have any

18 objection. But now once there has been marking on Exhibit 9, you have not

19 had an opportunity to cross-examine as to that. Would you have any

20 objection to it coming in as 9 and then you would deal with the

21 cross-examination later or how?

22 MR. WLADIMIROFF: So far we have no problem with that, so we will not

23 object to it. It may change during the process of examination, but so far

24 there is no problem here.

25 THE PRESIDING JUDGE: OK. So we will handle it -- if there is no

Page 96

1 objection to the modification that has been made of the exhibit, we will

2 keep the same number, in this instance, it is 9, and that 9 will have the

3 markings of Dr. Gow. If there is an objection made to the markings, then

4 you will have to give it a different number ---

5 MR. NIEMANN: Different number.

6 THE PRESIDING JUDGE: -- perhaps and I do not know how we will handle the

7 "a".

8 MR. NIEMANN: Perhaps, your Honours, just when thinking about it for a

9 moment, though, it may be better if I give them an alphabetical number so

10 every time there is a document that is marked, make it 9A, 9B and 9C, and

11 that way it will be reflected in the transcript as well. The document can

12 be marked that way. It might be easier.

13 THE PRESIDING JUDGE: I think so. So 9 then will be the original map of

14 the routes of population. The marking then would be 9A.

15 MR. NIEMANN: Yes.

16 MR. WLADIMIROFF: We join in that idea; we think it is very practical

17 indeed.

18 THE PRESIDING JUDGE: Very good. So now what we have admitted is 9, it is

19 listed as

20 2/3 on your list; then we have 9A which would be the 9 with the markings

21 of Dr. Gow.

22 MR. NIEMANN: Your Honours, I might just, if I may, go back to Exhibit 9

23 and ask Dr. Gow to do it again and request that it be marked by him.

24 THE PRESIDING JUDGE: OK. I think there was one other exhibit that the

25 Judges were considering.

Page 97

1 JUDGE STEPHEN: That was 11 -- no, 10.

2 JUDGE VOHRAH: Exhibit 10, the last one.

3 MR. NIEMANN: We will go to back.

4 THE PRESIDING JUDGE: So we will start back at 9 and let us create 9A and

5 then 10, we are also interested in the markings being made a part of a

6 separate exhibit. Fine.

7 MR. NIEMANN (To the witness): Dr. Gow, just looking at Exhibit 9A, I

8 should say 9, looking at Exhibit 9 now displayed on your screen, would you

9 please with the electronic pen mark there, as you did earlier in your

10 evidence, the general directions or routes that were followed by people

11 that were refugees from the Prijedor region?

12 A. First, I will mark Prijedor again for the record. I will give a

13 general indication of directions which people may have taken. I would

14 stress that all of this is not a matter of individual documentary record;

15 it is simply a matter of general movements. Without wishing to pre-empt

16 anything else, I would point out that in a number of cases they were given

17 a certain kind of assistance to make these movements.

18 MR. NIEMANN: I tender that document, your Honours, and might a hard copy

19 be made and it be given the number Exhibit 9A?

20 THE PRESIDING JUDGE: Is there any objection to Exhibit 9A?

21 MR. WLADIMIROFF: No, your Honour.

22 THE PRESIDING JUDGE: Fine. Exhibit 9A will be admitted.

23 MR. NIEMANN (To the witness): Dr. Gow, could you look at the next

24 document that I show you, Exhibit 10? Dr. Gow, looking at that exhibit

25 that you see there now, earlier on in your evidence you have made some

Page 98

1 markings on the exhibits in relation to division of the two Empires, the

2 Austro-Hungarian Empire and the Ottoman Empire. Would you mind doing that

3 again for us on a copy?

4 A. I suggested that, among other places, the border between the two

5 Empires -- maybe if I try some kind of shading here down here, along the

6 River Drina, the border between Serbia and Bosnia and Herzegovina formed

7 the border between the two Empires for the greater part of a period of 500

8 years, 400 or 500 years.

9 But, in 1878, under the auspices of the Congress of

10 Berlin, Austria annexed Bosnia and Herzegovina, so the border between two

11 Empires de facto became this border here, the border between present-day

12 Bosnia and present-day Croatia. That border was confirmed in 1908 when

13 Bosnia and Herzegovina was fully transferred legally to the

14 Austro-Hungarian Empire just following the de facto annexation in 1878.

15 Q. Dr. Gow, do you think, if the technology permits it, could you just

16 write in the date against the two lines which might assist in separating

17 them?

18 A. I will try. I am afraid this is not so easy! Here was -- it is like

19 being back at school, infants school. I hope that will clear it up for

20 your Honours.

21 MR. NIEMANN: Thank you. Your Honours, I would ask that that be tendered

22 as Exhibit 10(A).

23 THE PRESIDING JUDGE: Is there any objection?

24 MR. WLADIMIROFF: No, your Honour.

25 THE PRESIDING JUDGE: Exhibit 10A will be admitted.

Page 99

1 MR. NIEMANN (To the witness): Dr. Gow, while that exhibit is on the

2 screen, is there anything else that you wish to draw our attention to in

3 relation to it?

4 A. If I may -----

5 Q. Perhaps you might clear the screen, so that if you are going to mark

6 it again we can make it 10B.

7 A. Before the recess, I was indicating the way in which during the

8 course of the 19th century Serbia gained independence, first of all, in

9 the area of narrow Serbia -- of narrow Serbia, the dark olivey green area

10 marked on this map. If I could ask for some technical assistance? I keep

11 trying to get the maker for the line and the screen rolls up. I have it

12 now, thank you.

13 The line marked by the dark olivey green on which

14 "Serbia" is written, this was the line of Serbia as it became independent

15 between 1814 and 1878. Independence was confirmed in 1878. I went on to

16 say that in the course of the Balkan Wars between 1911 and 12, the

17 territory of that independent Serbian state was expanded to include the

18 territories marked in the buff colour, most of which today form the areas

19 of Kosovo and Macedonia.

20 Q. So, for the record, that is the lighter orange colour that you have

21 just drawn around?

22 A. Yes, indeed, I have referred to it as buff. Yes, the area around

23 which I have just drawn the line on which the towns of Pristina and Skopje

24 are marked.

25 THE PRESIDING JUDGE: Excuse me, Mr. Wladimiroff, I do not think Mr. Tadic

Page 100

1 has his earphones on.

2 MR. WLADIMIROFF: Yes, I see that, but as long he does not make a problem,

3 we have no problem with that.

4 THE PRESIDING JUDGE: Very good.

5 MR. NIEMANN: Yes, continue.

6 THE WITNESS: I also indicated that Montenegro, which remained more or

7 less independent through the whole of this period and was never part of

8 the Ottoman Empire in this same period and which also expanded its borders

9 in this area marked with yellow on the map, so that it came to have a

10 common border prior to the First World War with Serbia and Montenegro.

11 Q. Perhaps you might draw an arrow to that section you have just

12 referred to?

13 A. The area there marked in yellow, or slightly greeney yellow, colour

14 on the map, Montenegro is indicated by the label in the Adriatic sea and

15 the line running into the territory of Montenegro. Is it all right if I

16 were to clear this screen now?

17 Q. I would ask that that exhibit be preserved. Might it be given No.

18 10B, if your Honours please?

19 MR. WLADIMIROFF: No problem.

20 THE PRESIDING JUDGE: Exhibit 10B then will be admitted.

21 THE WITNESS: May I continue?

22 MR. NIEMANN: Yes, please.

23 A. Finally, just as a point of reference for your Honours for later

24 discussions, I would also indicate that you will see that the areas marked

25 on the map that were within the Austro-Hungarian Empire, after 1878, the

Page 101

1 territories of Bosnia and Herzegovina and the areas marked as

2 Croatia-Slavonia and Dalmatia as well as the territory which came to be

3 Slovenia marked in the north where you see the town of Ljublijana marked,

4 those territories, the delineation of territories that you see there is

5 almost -- in almost all cases is the same as the delineation of the

6 territories which were to form the states of Bosnia and Herzegovina and

7 Croatia after 1991, and the independence from the Socialist Federative

8 Republic of Yugoslavia. You will see that Croatia-Slavonia and Dalmatia

9 are treated as separate territories. This is because, although they

10 formed part of one realm of Croatia-Slavonia and Dalmatia, they were also

11 part of two separate principalities, one within the Hungarian sphere of

12 influence in the Hapsburg Empire and the other, Dalmatia, within the

13 Austrian sphere of influence. Bosnia and Herzegovina was a principality

14 within that Empire. Thank you.

15 MR. NIEMANN: Your Honours, as that map has not been interfered with or

16 marked in any way by Dr. Gow, I would not seek to tender that one. (To

17 the witness): Might you now look at the map, document 2/5 -----

18 THE PRESIDING JUDGE: Is this 10?

19 MR. NIEMANN: Your Honours, this one that was just on the screen was 10,

20 but Dr. Gow did not make any markings or alterations on it.

21 THE PRESIDING JUDGE: 10 has already been admitted?

22 MR. NIEMANN: It has been admitted.

23 THE PRESIDING JUDGE: OK.

24 MR. NIEMANN (To the witness): Looking at 2/5, in relation to the

25 historical and political development of Yugoslavia, what can you tell us

Page 102

1 about this particular map?

2 A. This map shows the territories which went to form the kingdom of

3 Serbs, Croats and Slovenes in 1918. You will see the territory of Serbia

4 is marked in the two colours as before; the darker colour indicating

5 Serbia as it had been, narrow Serbia, during the course of the 19th

6 century, the 1800s, and the area known as southern Serbia marked in the

7 lighter brown colour.

8 You will see also, as I indicated on the previous map,

9 the territories of Montenegro, Bosnia and Herzegovina, Croatia-Slavonia

10 and Dalmatia. In the northern part of that territory you will see you

11 have, if I may indicate with a cross, you see the territories which were

12 to become Slovenia.

13 You will also note that the border here is not the same

14 as -- the border with Italy was not the same as the border which was later

15 to be formed in the Socialist Federative Republic of Yugoslavia which

16 would be further to the west. The area marked in the lighter colour was

17 known for the purposes of the first three years of the kingdom of Serbs,

18 Croats and Slovenes until the elections of 1921 as Southern Serbia, and it

19 is in that area that elections -- within these administrative areas that

20 elections and censuses and so forth, administrative tasks, were carried

21 out.

22 Q. Dr. Gow, was this map prepared at your direction?

23 A. It was.

24 Q. Thank you. Your Honours, I tender that, if I may, as Exhibit 11 and

25 I would ask that the original with the markings on it be preserved.

Page 103

1 THE PRESIDING JUDGE: Is there any objection to 11?

2 MR. WLADIMIROFF: No.

3 THE PRESIDING JUDGE: 11 will be admitted and no markings will appear on

4 it. Is that what you are saying?

5 MR. NIEMANN: Your Honours, we do not need to create two because he made

6 the markings on this one and we can preserve this as Exhibit 11.

7 THE PRESIDING JUDGE: OK. Exhibit 11 then will be admitted.

8 MR. WLADIMIROFF: As marked.

9 THE PRESIDING JUDGE: Yes, as marked. So it is a little different than 11

10 as originally presented. You are not going to offer 11A as marked? Good.

11 That is fine. I will do whatever the two of you want me do. 11 will be

12 admitted as marked.

13 MR. NIEMANN (To the witness): Dr. Gow, I would now ask you to look at the

14 next map that is shown on the screen, 2/6. Again, can you tell us, Dr.

15 Gow, what does this map indicate?

16 A. This map indicates the administrative areas of the kingdom of

17 Yugoslavia after the name was changed in 1929 and after the then King

18 Alexander attempted to create a new administrative structure within the

19 country which would in some way move away from the territories with

20 historical identifications.

21 Q. At whose direction was this map prepared?

22 A. The map was prepared at my direction at the Office of the Prosecutor.

23 Q. Thank you. Is there anything else that you can tell us in relation

24 to this map that you wish to refer to in evidence?

25 A. I would simply direct, I would draw attention to the way in which the

Page 104

1 boundaries of the internal structure of the kingdom of Yugoslavia were

2 different from the boundaries of either the territories which went to

3 make up the kingdom of Serbs, Croats and Slovenes in 1918 before the name

4 change to the kingdom of Yugoslavia in 1929, and were different again from

5 the territories which were to be formed as the state republics within the

6 Socialist Federal Republic of Yugoslavia, the federal state which

7 dissolved in 1991.

8 Q. Is there any particular reason for that variation?

9 A. The then king, Alexander, was trying to promote an idea of

10 Yugoslavism, was trying to break with the traditional, historical,

11 cultural identities of territories, I believe, and the change in

12 administrative structure was one way of trying to break what might be I

13 may call an historical mould.

14 Q. And the historical traditional boundaries?

15 A. That is indeed the case, yes.

16 Q. I ask that that be admitted into evidence, if your Honour pleases,

17 and may it be marked Exhibit 12?

18 MR. WLADIMIROFF: No objection.

19 THE PRESIDING JUDGE: Exhibit 12 will be admitted and without objection.

20 MR. NIEMANN (To the witness): Would you look please, Dr. Gow, at the next

21 map I show you, No. 2/7? Again, doctor, can you tell us what that map

22 represents?

23 A. This map represents an arrangement made in 1939 under which a

24 banovina, an area of large -- a largely autonomous area of Croatian rule

25 was established. This, you will recall the previous map, indicated

Page 105

1 boundaries, administrative boundaries, of 1929. The kingdom of

2 Yugoslavia, and before that the kingdom of Serbs, Croats and Slovenes, as

3 it was, was a state which was politically troubled. It had a series of

4 political ethno-national difficulties to deal with. The 1929 arrangements

5 were one attempt to deal with them. They were largely unsuccessful.

6 There was strong Croatian disaffection in some ways with

7 the state and an accommodation was reached in 1939 by which this Croatian

8 autonomous area, the banovina, indicated by the green lines on the maps,

9 was established. So this map shows the arrangement of the Croatian

10 banovina after 1939.

11 Q. Thank you. Was this map again prepared at your direction?

12 A. It was.

13 MR. NIEMANN: I tender that map, if your Honours please?

14 THE PRESIDING JUDGE: Any objection?

15 MR. WLADIMIROFF: No problem.

16 THE PRESIDING JUDGE: Exhibit 13 will be admitted.

17 MR. NIEMANN (To the witness): Dr. Gow, would you now look at the next map

18 I show you, 2/8? Dr. Gow, can you tell us by looking at that map what it

19 represents?

20 A. This map indicates areas on the territories of the former Yugoslavia

21 as they were affected by the Second World War following the invasion of

22 Nazi Germany in 1941 and of Italy. You will see the map indicates, if I

23 may use the pen again, an Italian zone and a German zone, broadly.

24 The territories, some of the territories indicated in

25 green were transferred to Italy, the dark green; some areas in the paler

Page 106

1 green were transferred to Italian control; some areas in red were

2 transferred to German control and areas in yellow were transferred to

3 Hungarian control. Down in the bottom right-hand corner you will see the

4 pale blue areas which were transferred to Bulgarian control.

5 The territories of the kingdom of Yugoslavia were broken

6 up following the Axis invasion. Some of the allies of Germany, as I

7 indicated, were rewarded with territory, and in other areas indicated on

8 this map, largely by the white area, the independent state of Croatia was

9 created. This was ruled by a group known as the Ustasha headed by a man

10 called Ante Pavelic. He had been harboured in Italy during the 1930s and

11 sponsored by the Italian leader, Mussolini, in taking over control of the

12 independent state of Croatia. It was, in a sense, a Nazi puppet state and

13 it was responsible for -- and the areas you will see included large parts

14 also, not only of Croatia, but of Bosnia and Herzegovina. Within that

15 independent state of Croatia, you will see, as I was indicating, the two

16 crosses, there was a German zone of influence and an Italian zone of

17 influence.

18 Q. Dr. Gow, can you give us an approximate time frame in terms of years

19 when this division between the German zone and the Italian zone took

20 place?

21 A. The division took place following the invasion of the Axis powers in

22 1941, in April 1941, and, in a sense, lasted until the end of the Second

23 World War in 1945, although control of certain parts of territories

24 shifted in the course of the war in Yugoslavia.

25 I would just add that the red area to the right-hand side

Page 107

1 of the map where it says "Serbia occupied by Germany", this was a Serbian

2 protectorate under -- a German protectorate of Serbia under a local

3 Serbian administration.

4 Q. Dr. Gow, was this map again prepared under your supervision and

5 direction?

6 A. It was.

7 MR. NIEMANN: Your Honours, might the map shown on the screen be preserved

8 because of the markings and could it be given the exhibit No. -- I tender

9 it, your Honour.

10 THE PRESIDING JUDGE: Is there any objection to 14?

11 MR. WLADIMIROFF: No, your Honour, no objection.

12 THE PRESIDING JUDGE: OK. Exhibit 14 will be admitted.

13 MR. NIEMANN (To the witness): Dr. Gow, what does the word "Yugoslav"

14 mean?

15 A. "Yugoslav" means "South Slav". The Serbo-Croatian word for "south"

16 is "jug".

17 Q. What was sought to be achieved by the formation of Yugoslavia?

18 A. The formation of Yugoslavia, at the time the kingdom of Serbs, Croats

19 and Slovenes, in 1918 was thought to be a way of bringing all these

20 different peoples who had much, apparently, in common to live together in

21 one state.

22 Q. What are the major geographical, topographical features of

23 Yugoslavia?

24 A. The geography of Yugoslavia is almost as diverse as its population

25 groups. There are a number of different distinct areas, the plains, the

Page 108

1 Pannonian plains, to the north and east; a series of mountain ranges,

2 alpine and non-alpine in the north and in the west, and the Adriatic

3 coastal area which is a Mediterranean type area.

4 Q. Perhaps to assist you with that, might the document 2/9 be put on

5 the screen, please? Firstly, can you tell me what is this primarily a map

6 of?

7 A. This is a map showing topographical features on the territories of

8 the former Yugoslavia. The map, as originally prepared, was for the

9 purposes of indicating military terrain and was prepared by the general

10 staff of the Ministry of Defence in the United Kingdom.

11 Q. Perhaps could you take us to the various geographical and

12 topographical features that you just described a moment ago in your

13 evidence in relation to this matter?

14 A. As I indicated, the degree of variation in the north eastern part of

15 the country, you have a large plain.

16 Q. You have drawn that through the area where Belgrade appears up to

17 Novi Sad?

18 A. Yes. The whole of that area in the north eastern part; some of that

19 also stretches to the west through parts of Croatia to a lesser extent.

20 The alpine mountains I mentioned are in the north west on the territory of

21 Republic of Slovenia. Dinaric mountains are found through parts of Bosnia

22 and Herzegovina and Montenegro.

23 Q. Now you are marking down towards the area where Sarajevo appears; is

24 that right?

25 A. I am marking to the left or to the west of Sarajevo, the area in the

Page 109

1 deeper brown colour on this map, running through into parts of Montenegro.

2 This area is not only with high mountains, but also deeply wooded.

3 Finally, I mentioned the area of the Adriatic coast with its Mediterranean

4 climate. This is the area there, the coastal area with many islands.

5 MR. NIEMANN: I tender that map, if your Honours please.

6 THE PRESIDING JUDGE: Is there any objection?

7 MR. WLADIMIROFF: No objection, your Honour.

8 THE PRESIDING JUDGE: Exhibit 15 will be admitted as marked.

9 MR. NIEMANN (To the witness): Dr. Gow, has the geographical features of

10 the former Yugoslavia had any impact on its historical and cultural

11 development?

12 A. May I clear this map and use it again?

13 Q. Yes, perhaps there may be a better map that I could take you to.

14 Perhaps Dr. Gow could be shown document 2/10?

15 A. If I may, I could begin with map 2/9 and move to this, that would be

16 .....

17 Q. Perhaps Exhibit 15 could be put back on the screen?

18 A. Thank you very much. As far as it is possible to say something of

19 this kind, the geographical features, as indicated on this map, have meant

20 that an area such as Bosnia and Herzegovina with its heavily wooded high

21 mountains and the areas on the borders of Serbia and Montenegro as well

22 have made them natural barriers in terms of military matters throughout

23 history. This is one of the reasons why that area became the frontier

24 area between the two Empires. It was an area in which it was either

25 difficult to make progress or difficult from which to be removed, but by

Page 110

1 no means impossible. A consequence also, I suspect, may be, although I am

2 by no means an ethnologist, maybe that it created small communities in

3 particular isolated areas within valleys within that mountain, highly

4 mountainous areas. If I may move on ---

5 Q. Yes.

6 A. -- and the map 2-10 that you showed me before?

7 Q. Now perhaps we could move on to the map 2-10. Just looking at this

8 particular map, Dr. Gow, what is it a map of?

9 A. It is a map which shows the spread of orthodox populations throughout

10 the territories of the former Yugoslavia prior to the formation of

11 Yugoslavia. The kind of natural, historical, geographical boundaries I

12 was indicating have led to a situation, as you see, in which you have a

13 large orthodox population, that is, the orthodox church as the Serbian

14 Orthodox Church and, as I said, the Greek or Russian orthodox churches,

15 which, as indicated on this map, in the areas in the pale brown colour

16 were in a majority and in the areas marked by green were present as part

17 of mixed populations. This is a little simplified of course. In all

18 areas they would be mixed, but one indicates the majority and one a

19 relative majority population.

20 Those areas were of historical significance as Serbia

21 became independent in the course of the 19th century because there was an

22 aspiration to able to bring all the orthodox within the boundaries of one

23 state.

24 Q. Again who prepared this map?

25 A. The map was prepared by the Office of the Prosecutor at my direction.

Page 111

1 MR. NIEMANN: I tender that document.

2 THE PRESIDING JUDGE: I just have a question, if I may? You say

3 "historical boundaries"; what period of time are you talking about?

4 THE WITNESS: I will make use of the light pen again. As I suggested, the

5 boundary for most of that period -----

6 Q. What period?

7 A. I am sorry, the period of approximately 400 or 500 years between the

8 two, the Turkish Ottoman and the Austro-Hungarian Hapsburg Empires that I

9 mentioned from the mid 14th century through to approximately, well,

10 through to the end of the First World War. As I indicated earlier, the

11 boundary moved from the being boundary between -- the boundary was the

12 boundary between -- I am having some difficulty getting the line to draw.

13 THE PRESIDING JUDGE: Let me ask you this, the one we are looking at now

14 which is 16, is that correct?

15 MR. NIEMANN: Yes, your Honour.

16 THE PRESIDING JUDGE: This then, you say, would be the historical, natural

17 boundaries by religion ---

18 A. What I am -----

19 Q. -- for a certain period of time?

20 A. What I am seeking to indicate is that through that period of a few

21 hundred years, you had orthodox populations primarily within the Ottoman,

22 within the eastern side of the divide of the Empires, although there were

23 some orthodox populations to the west in the territories of Bosnia and

24 Herzegovina and in the Dalmatian hinterland in Croatia, in parts of

25 Croatia. But, as the border changed after 1878, many of those populations

Page 112

1 became -- the border moved from the border here along the River Drina. I

2 hope you can see that; it is difficult for me to see.

3 MR. NIEMANN: You are indicating on the map an area of approximately about

4 a centimetre and a half from Sarajevo?

5 A. Yes.

6 THE PRESIDING JUDGE: I thought that what you were trying to do was to

7 explain the difference between historical, natural boundaries by religion

8 for a certain period of time, you say, from the 14th century then until

9 the end of World War I, and then compare that with the boundaries that

10 were created at a later point in time. Is that or am I missing? I

11 understand these pieces, and I am not asking you to tell me where you are

12 going, but it just seems to me that the boundaries are in a certain way

13 based on religion, and then we see from an earlier map, which would have

14 been the one where you showed the division of Bosnia-Herzegovina between

15 Italy and Germany, and then in an earlier map you showed the ---

16 MR. NIEMANN: That is exhibit 14.

17 THE PRESIDING JUDGE: -- way that it eventually was divided and,

18 basically, there is little correlation between the way it was divided and

19 the religious boundaries, if I may say that. Does that sound very

20 disjointed? I understand what you are telling me about this map -- I can

21 look at it and I hear you -- but I am trying to put it in my own mind in a

22 context.

23 THE WITNESS: I think what you said about the map for the period 1941/45

24 would be accurate. What I am seeking to indicate by using this map is

25 that the mixture of geographical and historical, political and military

Page 113

1 factors which created the division between the two Empires was also a

2 factor in creating a division which would broadly, if somewhat

3 simplistically, be put as a division between western Roman Catholicism on

4 one side of the dividing line and the eastern orthodoxy and Islam on the

5 other side of the dividing line; Roman Catholicism being on the northern

6 and western side within the territories of the Hapsburg Empire, the

7 territories which went to form Slovenia and Croatia, and orthodoxy and

8 Islam being on the territories that were part of the Turkish Ottoman

9 Empire to the south and east.

10 THE PRESIDING JUDGE: I just do not see that because you have a whole

11 orthodox population right there, a mixture of orthodox and Catholic and

12 Muslim.

13 THE WITNESS: That is true. I am not seeking to say that the whole of the

14 population in this area was orthodox. I mean, there was an orthodox

15 population present, but in some of these areas in Bosnia the population

16 was mixed, and that part of the factor, one part of this is the historic

17 division between the two parts of the eastern and western parts of the

18 Christian church going back to, I think, the 4th century.

19 Another part of it is the Turkish Ottoman occupation of

20 the territories over

21 a period of four or five centuries, and a further part is the area that it

22 was -- it was an

23 area in which there was movement and dispute and which, in the 19th

24 century, moved from one Empire to the other, giving rise to a mix -- all

25 of these factors giving rise both to the presence of an orthodox

Page 114

1 population in these territories as part of the frontiers of the two

2 Empires, but also giving rise to a very mixed population in the

3 territories of a country such as Bosnia-Herzegovina.

4 MR. NIEMANN: Might that document now on the screen be tendered, your

5 Honour, 2/10?

6 THE PRESIDING JUDGE: Any objection then to Exhibit 16?

7 MR. WLADIMIROFF: No, your Honour.

8 THE PRESIDING JUDGE: Exhibit 16 will be admitted.

9 MR. NIEMANN (To the witness): Dr. Gow, was the impact of these

10 geographical, cultural and historical features more pronounced in any one

11 particular area of Yugoslavia?

12 A. As I was just indicating in the previous answer, the impact of this

13 was more pronounced

14 in Bosnia and Herzegovina where this mixture of factors over history

15 created a very mixed population, predominant groups being the Slav Muslims

16 who were Slavs who converted to Islam during the period of Turkish

17 occupation, and those of the orthodox faith and those of the Roman

18 Catholic faith who had been inhabiting the territories previously.

19 Q. Against this background of diversity that I think you have been

20 speaking of, where then did the concept of a unified Yugoslavia come from?

21 A. The idea of a Yugoslav state, a state for the South Slavs, developed

22 in the territories of the Hapsburg South Slavs, that is, primarily among

23 Croatian intellectuals or among some others as well. That was the idea

24 that the South Slavs would be able to gain some kind of self-determination

25 within the framework of a common South Slav state, that the peoples had a

Page 115

1 sufficient degree of common features that they would be able to come

2 together and to form a state in which they would all live together.

3 Q. Was this the only national ideal that played a role in the formation

4 of the unified state?

5 A. No, it was not. Again as this idea, as this Yugoslav idea developed

6 among some Hapsburg intellectuals, South Slav intellectuals, in the course

7 of the 19th century, similarly an idea was developed on the other side of

8 this historic dividing line in Serbia as it was getting independent, and

9 that was the idea of an enlarged Serbia or a great Serbia as it was

10 commonly put, one which would embrace the orthodox, the Serb populations

11 in those areas outside narrow Serbia. It may be useful if I could ask to

12 go back to the map which I think was the first of the maps we were looking

13 in this section of the map showing the situation prior to 1949.

14 Q. Perhaps Exhibit 10 which is 2-4.

15 A. If you recall, I said that in the course of the 19th century Serbia,

16 indicated by the darker brown colour on this map, gained its independence.

17 The idea of a great Serbia was to incorporate the areas to the south,

18 marked in the pale brown colour on this map, and also to unify with the

19 territories of Montenegro. In addition, if I may go back to 2-10 which we

20 just had, this is just to indicate the movement to the south and to the

21 southwest. If I may go back to map 2-10, please?

22 Q. Perhaps we might go back to 2-10 which is Exhibit 16 for the record,

23 if your Honour pleases.

24 A. May I continue?

25 Q. Yes, please.

Page 116

1 A. The idea was not only to incorporate the areas to the south and west

2 and also some areas to the north, but also if you look at the orthodox

3 population as it spreads into parts of Bosnia and Herzegovina and Croatia,

4 in the areas I shall try to indicate here broadly and down here, you will

5 see these were areas which were thought could become part of the expanded

6 Serbian state. Some ideas might also have seen it including the whole of

7 the territories of Bosnia and Croatia. The essential idea was to create a

8 state in which all

9 the Serbs, all the orthodox Serbs would live together.

10 Q. They are in the two areas which you have outlined in the red pen?

11 A. That is the case, yes.

12 THE PRESIDING JUDGE: When was this, Dr. Gow, that this idea was

13 formulated?

14 A. This as an idea which was being developed by Serbian intellectuals

15 and by Serbian politicians, by the Serbian Ministry of the Interior, Ilija

16 Garasanin, during the 19th century, at the same time as the Yugoslav idea

17 was being developed by Hapsburg South Slavs in the Austrian-Hungarian

18 empire.

19 MR. NIEMANN: Your Honour, might the marked version of Exhibit 16 be

20 preserved and tendered as Exhibit 16A?

21 THE PRESIDING JUDGE: Is there any objection ----

22 MR. WLADIMIROFF: No objection.

23 THE PRESIDING JUDGE: --- to Exhibit 16. It will be admitted as marked

24 without

25 objection.

Page 117

1 MR. NIEMANN: Dr. Gow, what was the basis of the alternative national

2 ideal?

3 A. I beg your pardon?

4 Q. Perhaps I might go back a question. You mentioned a moment ago to

5 Her Honour in answer to her question what the basis of the Serbian

6 national ideal was.

7 A. Yes.

8 Q. I would ask you now what was the basis of the alternative to this

9 national ideal?

10 A. The basis for the Yugoslav idea was that all the southern Slavonic

11 peoples either spoke

12 the same language or a variant of the same language or closely related

13 languages, and that they should have enough in common with each other that

14 they would gain strength by forming a common state together, a state which

15 would be called Yugoslavia or in some period was thought of as an Ilyira

16 idea. In doing this the people who were

17 thinking about these ideas among the south Slavs in the Hapsburg lands

18 also looked to independent Serbia in some way as an indication of how

19 self-determination might be gained and how strength might be gained

20 through all the south Slavs joining together.

21 Q. What, if any, impact did the First World War have on the formation

22 of the Yugoslav

23 state?

24 A. The First World War created a context in which the formation of such

25 a state, which was probably quite unlikely at the beginning of the First

Page 118

1 World War, was achieved by the end of the First World War. It was

2 achieved because the context was created in which the two ideas could come

3 together, but the particular circumstances at the end of the First World

4 War meant that the Yugoslav state which was created, that is known at that

5 time as the Kingdom of Serbs, Croats and Slovenes, was formed largely as

6 an extension of the existing Serbian kingdom. The Serbian Monarchy was

7 extended to the territories of the kingdom of Serbs, Croats and Slovenes

8 and initially the parliamentary structures were continued but extended.

9 Q. What were the major political developments or events that occurred

10 between the First and the Second World Wars?

11 A. The kingdom of Serbs, Croats and Slovenes was renamed the Kingdom of

12 Yugoslavia in 1929. In part this reflects the difficulties which this

13 state was facing. The difficulties were a series of political, economic,

14 social and particularly ethno-national crises. Some of the non-Serbian

15 peoples, particularly the Croats or elements of the Croatian population,

16 certainly political parties, had never been happy with the way in which

17 the state was formed, continued to protest. There were a series of

18 incidents, including shootings in parliament, in 1929 when the name of the

19 kingdom was changed. Also there was a royal dictatorship declared as a

20 way of trying to take control of this

21 situation. Internal problems, of course, continued as I indicated by

22 reference to one of the maps earlier. An accommodation was sought through

23 the creation of the Croatian Banovina, but again if this was to be a

24 solution it came too late in the history of the first Yugoslavia for the

25 success to be proved. So the first Yugoslav state, the kingdom of Serbs,

Page 119

1 Croats and Slovenes, later the Kingdom of Yugoslavia, was always

2 economically weak, socially and politically in difficulty and, in

3 particular, was characterised by strong political conflict of an

4 ethno-national character.

5 Q. What was the condition of the unified state of Yugoslavia on the eve

6 of the Second

7 World War?

8 A. It was in a very weak condition and this is what made it easy for the

9 axis powers to invade, to occupy parts of the country and to dismember it

10 in the way that it was indicated on the map for the period 1941 to 1945.

11 Q. What were the main features of the impact of the Second World War

12 on Yugoslavia?

13 A. The Second World War in Yugoslavia was a complex war. In part it was

14 a civil war between different Yugoslav groupings, assuming that you regard

15 the whole area of the territory of Yugoslavia as being one territory for

16 this purpose. It was a revolution being conducted by the communist led

17 partisans and it was also a war of national liberation from the occupying

18 axis forces. This complex war gave rise to a series of intra-Yugoslav

19 conflicts as well as Yugoslav versus occupying power conflicts.

20 Q. Who were the major participants, what was the name given to some of

21 the major participants in this period during the Second World War?

22 A. There were many different groups involved in different areas on the

23 territories of the former Yugoslavia during the period 1941 to 1945.

24 There were three or usually there were regarded as being three principal

25 groups. These are Ustasha, the forces of the government of the

Page 120

1 independent state of Croatia, a strongly nationalist Croatian government,

2 as I said before, put in place by the occupying powers; the loyalist

3 Chetniks, these were primarily a Serbian organisation loyal to the old

4 Serbian Monarchy and were run by Colonel Drazo Mihailovic who was taken to

5 the Minister of Defence of Royal Yugoslav government in exile; and the

6 third group were known as the partisans and these were led by a man Josip

7 Broz known as Tito and the communist led partisans were to emerge as

8 victors in this multi-faceted war.

9 Q. When you speak of the Ustasha and the axis powers, you speak in

10 combination of both Italy and Germany or was the Ustasha more the

11 establishment of one or the other?

12 A. The Ustasha movement was a terrorist organisation was involved in

13 organising the killing of the King Alexander in 1934 in Marseille,

14 although this was done in conjunction with a Macedonian terrorist

15 organisation who actually carried out the act. It was nurtured in

16 Mussolini's Italy, but the Ustasha regime was put in place by the

17 occupying German powers in conjunction with the Italian forces.

18 Q. Was ethnic persecution adopted by any of the participants as a

19 feature of their campaign during the Second World War?

20 A. Ethnic persecution was a central feature of the Ustasha programme on

21 the territories

22 given to the independent state of Croatia, to a lesser extent, possibly a

23 lesser extent, it

24 was a feature of some of the Chetnik activities in parts of southeastern

25 Bosnia against Muslims, but the primary focus for any discussion of this

Page 121

1 kind would be the Ustasha campaign, particularly in the border areas of

2 Bosnia and Croatia, areas in fact close, I would say, to Prijedor where

3 the Ustasha sought to eliminate, ostensibly to eliminate one-third of the

4 Serbian population, physically to eliminate another third by expelling it

5 and to convert a further third to Roman Catholicism.

6 Q. In reference to that, might there be placed on the screen document

7 1-12 through to 1-17, but if we could just have the first page, please.

8 Just looking at the first page, are you familiar with this document, Dr.

9 Gow?

10 A. I am.

11 Q. Can you just tell me what it is?

12 A. It is the first two pages of an article written in the journal

13 Foreign Affairs in the summer of 1993 I believe. I think it should be

14 indicated at the bottom of the page if it is enlarged. Maybe I can

15 enlarge.

16 Q. Perhaps you might enlarge the bottom of the page, please.

17 A. Yes, it is from Foreign Affairs in the summer of 1993.

18 Q. Are you aware of the professional reputation of the authors of this

19 article?

20 A. I am not aware in particular of the professional reputation of this

21 author, although I note that he is working at Boston University in the

22 United States and I would certainly regard the journal in which this

23 appears as being a reputable journal.

24 Q. I would ask you, if you would, to look at a particular page of this

25 particular article, page 116 and it is 1-15, if that may be brought up on

Page 122

1 the screen. Perhaps, Dr. Gow, in

2 relation to the issue of the Ustasha, is there a reference there to the

3 point you were marking about the operations of the Ustasha during the

4 period of the Second World

5 War?

6 A. There is.

7 Q. Could you perhaps enlarge the section that you wish to take us to on

8 page 115 of the Exhibit? You might underline that part, if you would.

9 A. If I may just mark it down the edge of the page. You see I have

10 marked against the edge

11 of the page the quotation: "One third of the Serbs we shall skill, another

12 we shall deport, and the last we shall force to embrace the Roman Catholic

13 religion and thus meld them into Croats." This is a statement made by Mile

14 Budak who is not named here and who is here designated as Croatian

15 Minister of Education but was also deputy leader of the Ustasha regime -

16 at an event on I think 22nd June 1941, although the precise date is not

17 indicated here. My memory is that it was 22nd June. This is an

18 indication of the programme that the Ustasha had for clearing the Serbian

19 orthodox population on the territories of the independent state of

20 Croatia, and this was a policy which they were to carry out, or attempt

21 to carry out, in the border areas between Croatia and Bosnia in

22 particular.

23 Q. I would ask that that particular section be preserved, and might the

24 two documents be admitted, your Honours, as Exhibit 17 and the second

25 document with the marking on it as Exhibit 17A?

Page 123

1 THE PRESIDING JUDGE: Is there any objection?

2 MR. WLADIMIROFF: No objection, your Honour.

3 THE PRESIDING JUDGE: Exhibits 17 and 17A will be admitted.

4 MR. NIEMANN: Dr. Gow, what were the policies adopted by Tito and his

5 followers during the Second World War ----

6 THE PRESIDING JUDGE: Before you move on, Dr. Gow, if you can, I have

7 been trying to follow the exhibits and the maps, so before you get us

8 beyond the ethnic cleansing could I ask you just a couple of questions

9 about your testimony thus far, so that I can try to understand it in its

10 proper perspective?

11 You began, I suppose, or you did not really begin but at

12 one point you had pointed us to a map that I gather showed the progress of

13 the Ottoman empire. Is that not so? You got us to Bosnia Herzegovina and

14 you spoke about natural boundaries there and the terrain, and that would

15 explain why in terms of the Ottoman empire it did not go any further. Was

16 that your testimony or not?

17 I suppose I would ask you to take us back to the

18 beginning. You are trying to show us the development and you are trying

19 to show us the development of religious differences, groups within

20 Yugoslavia, and you have mentioned the 14th Century. Then, of course, we

21 are now to 1993 I suppose. In the process we have been referred to

22 different maps and I am not sure that we have followed you

23 chronologically. Is it possible for you, even without the maps, to tell

24 us, starting from the beginning and taking us to the end, the changes in

25 terms of the ethnic composition in different areas, but beginning from the

Page 124

1 14th Century? Is that possible for you to do? Maybe you do not even

2 understand my question because I am not much of an historian, although I

3 actually majored in history. That was many, many years ago, but American

4 history. So there is the 14th Century.

5 A. I am not necessarily an historian either. I would, if I may, point

6 out first of all that I do not think we have reached 1993. Although this

7 document was published in 1993, the reference is to 1941.

8 THE PRESIDING JUDGE: You are right I am sorry..

9 A. Overall I think the purpose of the evidence that I am attempting to

10 give is to set the events of 1991 and afterwards in their military-

11 political context. In order to do that I have been reviewing some of the

12 factors which went to create the Yugoslav states which dissolved in 1991,

13 and that has meant making reference to not only the 14th Century but the

14 4th Century, but I hope in both as cursory a way but also as useful a way

15 as is possible to give a sense of the way in which the territories which

16 went to make up the federation which dissolved came to be.

17 Q. Maybe you could tell us without even the maps.

18 A. Yes.

19 Q. If you can tell us starting with the 14th Century. I think you can

20 do it because ----

21 A. Yes, I think I can make an attempt.

22 Q. Tell me, take us back to the 14th Century and subject, of course, to

23 cross-examination, just tell us in your own words based upon basically

24 what you have told us with these maps. Take us back to the 14th Century.

25 JUDGE STEPHEN: And tell us what you are trying to do.

Page 125

1 THE WITNESS: I think I was saying I was trying to indicate, the purpose

2 of my evidence is to give the military-political context of the events

3 from 1991 and afterwards. I am seeking in giving this evidence now to

4 give the court a sense of the way in which the state which dissolved which

5 gave rise to the armed conflict which is under discussion came to be.

6 THE PRESIDING JUDGE: You are doing a good job, but we are just following

7 the differences. I want you to just talk, if you can, talk to us and tell

8 us, take it from the 14th Century. We are going now to get to the time of

9 the Ustasha.

10 THE WITNESS: OK. If you do not mind I will go back to the 4th Century

11 and go through the whole thing chronologically.

12 THE PRESIDING JUDGE: You may if you want to.

13 A. There was a division between he eastern and western branches of the

14 Christian church, the Roman Catholic church. The dividing line for that

15 division ran through the area of the former Yugoslavia. It was broadly

16 the area between Bosnia and Serbia. I would not go to the point of saying

17 precisely, but this dividing line between the two empires, between the two

18 parts of the Christian orthodox church, was later to become the dividing

19 line between the Islamic, Turkish, Ottoman empire and the Roman Catholic

20 Western Austro-Hungarian empire.

21 Q. To one side whatever it is, to the eastern side?

22 A. To the north and west was Roman Catholicism, Austro-Hungarian,

23 Hapsburg empire. To the south and east was the eastern orthodox part of

24 the Christian church and then later the Turkish Ottoman empire with the

25 Islamic, with the Islamic faith. For a period of most of 500 years there

Page 126

1 was a division between those two areas, between Hapsburg,

2 Austro-Hungarian, Roman Catholic to the north and west and Turkish Ottoman

3 to the south and east, territories which also included orthodox

4 populations, people, a faith which was there before the Turkish occupation

5 of the area. The Turkish empire attempted to stretch further than the

6 areas of Bosnia and Herzegovina, and there were periods in which they

7 indeed went as far as Vienna, but they were not able to hold those

8 territories. The areas where they were able to hold the empire were on

9 the borders of Bosnia and Croatia.

10 Q. Not getting west of the border of Bosnia and Herzegovina going into

11 Croatia?

12 A. No, not into those areas of Croatia. If I may interrupt myself just

13 for a moment. My mental recollection of the map on which I marked the

14 boundaries, the change of boundaries in 1878, a flash just came into my

15 mind that I actually wrote on them the wrong way round. So, if somebody

16 could find a record of that map I would like to just to check it and to

17 correct. Maybe a source of some of the lack of clarity in what I have

18 been doing, if memory is accurate.

19 Q. So the Ottoman empire from 14th Century to?

20 A. Until the end of the Second World War.

21 Q. OK.

22 A. Well, in some areas -- sorry, now I correct myself, until 1913 which

23 is when Serbia took the areas known as southern Serbia presently known as

24 Kosovo and Macedonia, but the Turkish forces remained in that area, and

25 the Ottoman empire, the Turkish empire, disintegrated at the end of the

Page 127

1 First World War. So the end of the Turkish empire was 1918, but the end

2 of the Turkish presence on these territories was 1913.

3 The territory of Bosnia and Herzegovina formed part of

4 the Ottoman, the Turkish, empire until 1878. In 1878 Austria annexed the

5 territory of Bosnia and Herzegovina and, de facto, that area was

6 transferred to the Austro-Hungarian Hapsburg empire. In 1908 that

7 transfer was legally confirmed and it became legally as well as de facto

8 part of the Austrian-Hungarian empire.

9 Q. So then when you get to 1908 then you have an area in Bosnia and

10 Herzegovina actually belonging to the Austrian-Hapsburg empire from

11 middle, Bosnia-Herzegovina west, and from Bosnia-Herzegovina east then

12 that was what?

13 A. From 1918 until the Balkan wars which began in 1911 part of it was

14 the independent kingdom of Serbia and part of it was part of the Ottoman

15 Turkish empire. In the course of the wars of 1911 and 1913 Serbia

16 occupied the territories which were part, which in

17 1908 were held by Turkey. So by 1913 the whole of the territories in that

18 area had become part of -- sorry, by the end of 1913 there was no longer

19 an Ottoman Turkish presence on the territories of what went to make

20 Yugoslavia, but the Ottoman empire became the boundary of the Ottoman

21 empire which continued until 1918.

22 Q. Then of course World War I. Then with World War I, basically what

23 resulted after

24 World War I was, you said, a creation really of the Serbian Kingdom, is

25 that not so?

Page 128

1 A. After ----

2 Q. Or was created as an extension of the Serbian Kingdom.

3 A. After the First World War the kingdom of Serbs, Croats and Slovenes

4 was created. The structures and the character of that country were,

5 broadly speaking, an extension of the independent Serbian kingdom

6 established in the course of the 19th Century through to 1878 when it

7 became fully and properly independent from the Turkish empire and the

8 kingdom of Serbia, as it was expanded, as its borders were expanded in the

9 course of the wars of 1911 to 1913, so that kingdom which at the beginning

10 of the First World War included the areas on the maps I showed marked both

11 as Serbia and the areas marked

12 for southern Serbia of which control was taken in the period 1911/13, all

13 were part of

14 the Serbian kingdom. The structures of that country were broadly those

15 which were extended into the kingdom of Serbs, Croats and Slovenes when it

16 was formed at the end of the First World War. The name "Serbs, Croats and

17 Slovenes" was used in part to suggest the presence of the Croats and of

18 the Slovenes, as other Slavonic peoples, in this state to reflect

19 something of the Yugoslav idea and, in particular, to reflect an

20 accommodation with the Hapsburg South Slavs who on 18th October 1918 as

21 the First World War was coming to an end and as the Austro-Hungarian

22 empire began to dissolve, had declared something called a state of

23 Slovenes, Croats and Serbs to embrace the territories of the

24 Austro-Hungarian empire, the South Slavs territories in the

25 Austro-Hungarian empire. This was of course a weak state. It was faced

Page 129

1 with the prospect of Italian annexation at the end of 1918 and it was for

2 this reason that the Hapsburg South Slavs wanted to join Serbia in a broad

3 Yugoslav state. I use the term "Yugoslav" only for reference.

4 Q. They were not very happy about this, I suppose. There were still

5 ethnic divisions among Croats and Serbians even at that time.

6 A. Yes.

7 Q. When joined together. They joined together because if they had to

8 choose, I suppose, they would go with the greater Serbia. There were

9 still grumblings underneath.

10 A. They chose to join Serbia rather than to be occupied by Italian

11 forces. They looked to the relative strength of Serbia as one of the

12 First World War allies to give them protection against another of the

13 First World War allies, Italy, and in doing so they joined a state in

14 which they had to make an agreement which was largely on the terms offered

15 by the Serbian government, which is why some of the groups, particularly

16 the Croats, would go on being unhappy with that country through the period

17 between the two world wars.

18 Q. Where were now at this point in time, where were the majority of the

19 Muslim population in Bosnia-Herzegovina?

20 A. The Slav Muslims -- I should point out that there are two types of

21 Muslim population on the territories of former Yugoslavia. One, for the

22 most part the Albanian population is Muslim, although a significant

23 element of the Albanian population is also Roman Catholic. The Slav

24 Muslims were primarily located in Bosnia and Herzegovina and in the border

25 areas of Serbia and Montenegro, the area known as Sandzak, running down

Page 130

1 from the border of Bosnia and Herzegovina towards the border with Kosovo

2 and the border with Albania.

3 Q. Were they then neither part of greater Serbia or the Croatian

4 Hapsburg area?

5 A. They were living in that area which had been part of the Ottoman

6 empire until 1878. The reason -- I do not believe there is any single

7 specific explanation for the presence of the Slav Muslims. There are many

8 put forward. In general, the easiest and simplest thing that can be said

9 is that these were people who had either previously been Serbian orthodox

10 or Croatian Roman Catholics who had converted to Islam during the period

11 of the Turkish empire for the purpose of getting some special status,

12 giving them access to particular jobs or particular positions within

13 society, particular titles. By no means all of them, but this is one of

14 the reasons people in general converted to Islam perhaps to have an easier

15 life.

16 Q. Was that area then part of greater Serbia?

17 A. These territories were part of areas which would have formed part of

18 a great Serbian state in terms of their development of ideas of a great

19 Serbia. This was necessarily the case because the territories were mixed.

20 If you wanted to form a great Serbian state which would have the Serbian

21 orthodox population all living within boundaries of one state, and if

22 those orthodox populations were living in mixed areas in Bosnia and

23 Herzegovina, then necessarily it would incorporate the Muslim, the Slav

24 Muslims who were living on those territories as well. I might point out

25 that many Serbian and, indeed, Croatian nationalists have traditionally

Page 131

1 regarded the Slav Muslims as really being either Croats or Serbs who, by

2 chance, have adopted the Islamic faith and, therefore, are not proper

3 Muslims but genuinely Serbs or genuinely Croats. In this context,

4 therefore, I would suspect that perhaps many of the Serbian nationalists

5 thinking about a great Serbian

6 state, would simply have regarded Slav Muslims as being Serbs who

7 converted to a different religion and there would be no problem in making

8 them part of this great Serbian state.

9 Q. So this continued then until 1929 when the Kingdom of Yugoslavia was

10 created, is that not so, or established?

11 A. The Kingdom of Serbs, Croats and Slovenes had its named changed to

12 the Kingdom of Yugoslavia in 1929.

13 Q. Was that then still, the Kingdom of Yugoslavia, under the

14 predominant control of

15 Serbia?

16 A. It was still the same -- it was an attempt to rectify some of the

17 problems with the state as it had been formed and consolidated in the

18 period between 1918 and 1921.

19 Q. Because of the concerns of Croats?

20 A. Because of the concerns of the King, for the problems which were

21 creating difficulty inside the country and, in particular, because there

22 had been an incident in Parliament where the leader of the Croatian

23 Peasant Party had been shot and killed. It was a very difficult situation.

24 This is why the Royal Dictatorship was declared in 1929. The change of

25 the name was an attempt I think to renew the state and the change to the

Page 132

1 internal administrative boundaries which occurred at the same time which

2 was indicated by one of the maps we showed, I think it might have been map

3 2-4 but I reserve my position on that.

4 Q. But, in any case, it is the Kingdom of Yugoslavia. Now we get to

5 World War II and then there is a significant change, is that not so, in

6 terms of boundaries?

7 A. Yes.

8 Q. OK.

9 A. In 1941 following Axis invasion the territories of Yugoslavia are

10 distributed either between allies of Nazi Germany or are taken under the

11 control of Germany. Some are put under the control of Italy, and perhaps

12 the most significance feature is that the fascist Ustasha organisation

13 which had been nurtured in Mussolini's Italy was brought in to rule the

14 so-called independent state of Croatia within the boundaries that were

15 indicated on the map I used for the period 1941 to 1945.

16 Q. I guess this is where we were in Exhibit 17.

17 MR. NIEMANN: That is right, your Honour.

18 THE PRESIDING JUDGE: You were referring to ethnic cleansing by the

19 Ustasha of Serbs, is that not so, in the Foreign Affairs magazine?

20 THE WITNESS: I was referring to the Ustasha programme. I had not used

21 the term "ethnic cleansing" but I was referring to the Ustasha programme.

22 THE PRESIDING JUDGE: I thought the article was called ----

23 JUDGE STEPHEN: The article is called that.

24 A. The article is called that. The article is described as a history of

25 ethnic cleansing and part of its history is to show what happened in the

Page 133

1 Second World War which certainly could be characterised as ethnic

2 cleansing in the terms used in the 1990s.

3 THE PRESIDING JUDGE: OK. I am sorry.

4 MR. NIEMANN: Now moving from the Ustasha, what were the policies adopted

5 by Tito and his followers during the Second World War?

6 A. Tito and the partisans were a communist led movement, but were not

7 purely communist. But the aim of the leadership was essentially to

8 conduct a communist revolution on the territories of Yugoslavia, to take

9 power, to install a communist regime after the Second World War had

10 finished. The policies they adopted were first one of the so-called

11 brotherhood and unity, the idea that they could offer a way which was not

12 exclusively the preserve of any one of the national groups, so it would

13 not be purely Croatian, it would not be purely Serbian. You will recall I

14 mentioned two other main groups, the Ustasha which was Croatian

15 nationalist and the Royalist Chetniks who were Serbian nationalist,

16 although in their own terms I suppose they would say loyal to Yugoslavia,

17 but it was primarily a Serbian movement.

18 The partisans offered a non-exclusivist view of a new

19 Yugoslavia, one in which the problems of the first Yugoslavia might be

20 rectified and part of that was the idea of brotherhood and unity. But

21 another part of it was the promise of some kind, the formation of some

22 kind of federal state after the war. This would offer something to all

23 the different national groupings. So the creation, for example, of a

24 Croatian state would be part of this federation and would be a way of

25 bringing support from Croatian communities into the partisan movement.

Page 134

1 The strength of the partisans it should be pointed out was the Serbs in

2 the areas on the borders of Croatian and Bosnia, the people who had most

3 been suffering from the Ustasha campaign who turned to the partisans

4 because they were prepared to fight and joined in that fight with the

5 partisans, but still the partisans were a broad-based movement seeking to

6 appeal to all national communities and offered this structure of a

7 potential federation as a solution to the problems of the first

8 Yugoslavia. In doing so, as they liberated territories during the course

9 of the war, they also began to establish a system of government using

10 regional councils and these regional councils became the proto-formations

11 for the republican structures after the Second World War.

12 Q. This was progressive during the period of the war; they started to

13 do it progressively as the war went on?

14 A. That is the case. This was something, activity which the partisans

15 undertook in the course of the war between 1941 and 1945. In particular

16 the decision to create this kind of structure was taken at the two

17 meetings at the anti-fascist Council of National Liberation of Yugoslavia

18 (AVNOJ) in 1942 and in 1943 at Bihac in Jajce.

19 Q. Did the Second World War continue to have an influence on Yugoslavia

20 after the war, in the postwar period?

21 A. I think it is fair to say that the Second World War did continue to

22 have some impact on Yugoslavia. On one level obviously it had an impact

23 in the sense that the federal structure of republics was created, the

24 organisational framework for the state, but I think also it created, it

25 necessarily must have had some impact, memories of the war continued into

Page 135

1 the postwar era and no doubt continued to influence people in the period

2 after 1945. I mean, for example, in particular I think we cannot exclude

3 the possibility that many of the partisans who were Serbs from the areas I

4 mentioned within the territory of the independent state of Croatia where

5 the Ustasha was present and were carrying out the campaign to rid the

6 territories of Serbs, many of them joined the partisans and either were

7 still part of the Yugoslav People's Army in 1990/91, they joined as

8 teenagers and were still there, or were the descendants of people who had

9 been part of the partisan army or of families who had suffered at the

10 hands of the Ustasha.

11 Q. Dr. Gow, what constitutional measures were adopted by the communists

12 after the Second World War?

13 A. The communist regime adopted a federal structure for their new

14 Yugoslavia embracing the six republics that I mentioned right back at the

15 beginning which were to be part of the Socialist Federal Republic of

16 Yugoslavia after 1974. In 1946 the state was named the Federal Peoples

17 Republic of Yugoslavia and was given this federal structure of six

18 republics, and within that there was an autonomous region and an

19 autonomous province within the Republic of Serbia.

20 MR. NIEMANN: Might that be a convenient time, your Honour?

21 THE PRESIDING JUDGE: Exhibits 17 and 17A, have you offered that?

22 MR. NIEMANN: Yes, your Honour.

23 THE PRESIDING JUDGE: No objection to 17 and 17A? They are admitted maybe

24 twice then, I perhaps missed it.

25 We are going to adjourn for the day at 5.30, it is almost

Page 136

1 5.30. On Thursday of this week we have another matter to consider at

2 4.30, so we will have to adjourn early on Thursday. So we will adjourn at

3 4 on Thursday. Tomorrow we will begin at 10 and go until 5.30 with our

4 usual noon recess from 1 until 2.30 with a 15-minute break in the morning,

5 a 15-minute break in the afternoon. That will be for tomorrow, but on

6 Thursday again we will begin at 10 but we will have to stop at 4 because

7 of another matter that has to be taken up in this courtroom at 4.30. So

8 we will adjourn until tomorrow.

9 (The court adjourned until the following day).

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