Tribunal Criminal Tribunal for the Former Yugoslavia

Page 8491

1 Tuesday, 26th November, 1996.

2 (10.00 a.m.)

3 Open session

4 THE PRESIDING JUDGE: Miss Hollis, let us see. I see that we have a

5 listing of distances and driving times. I had indicated

6 yesterday that I would ask you some questions regarding that.

7 When I have time to look at it, I will see whether they satisfy

8 all of my needs. My real concern was for distances from

9 Prijedor, but we will pass that for the moment.

10 I did have some questions regarding counts 5 through

11 11. I do not know that I can really ask you all of the

12 questions at this point, because we received the transcript for

13 the afternoon session rather late and I have not had a chance to

14 go through it thoroughly. But I did want to pose a few

15 questions to you at this time, not for you to answer at this

16 time, perhaps after we have had an opportunity to look at the

17 transcript, you may be able to either tell me that you told me

18 the answer to the question, or perhaps there will be more

19 questions.

20 The first question is as follows: did Ferid Mujcic

21 identify the accused as calling out Karabasic?

22 MISS HOLLIS: Your Honour, I can answer that. The answer to that is

23 he said that he saw the accused when Karabasic was called out.

24 THE PRESIDING JUDGE: He saw the accused when Karabasic was called

25 out. Then regarding Velic's testimony, comparing it with

26 Besic's testimony, Velic, I believe, describes the calling out

27 of Hrnic and he says, I believe, that he saw the accused after a

28 guard had opened the door. Besic, I believe, testified that he

Page 8492

1 saw the accused personally call out Hrnic. Now I may be

2 mistaken about that, but that is my understanding and that is

3 something I would like you to clear up.

4 The other question is, is there any evidence from any

5 of the eight, I guess, witnesses who testified that any of them

6 saw the beating of Mr. Alic?

7 The next question relates to Mr. Grozdanic. He

8 testified that he saw two bodies, but he also testified that he

9 saw Hrnic called out and I believe he testified that he saw

10 military police calling out for Hrnic.

11 MISS HOLLIS: Your Honour, his testimony in that regard was that as

12 he went back to his room, as he approached the room, he saw a

13 person he described as a military policeman outside the room and

14 Hrnic coming out of the room.

15 THE PRESIDING JUDGE: OK, but did not ----

16 MISS HOLLIS: Because as he came there, he actually saw Hrnic exit

17 the room. We will check that further, but my recollection of

18 his testimony, he did not say who had called him out but he saw

19 what he described as a military policeman at the door as he saw

20 Hrnic come out the door.

21 THE PRESIDING JUDGE: Then a question as it relates to Mr. Hodzic:

22 I believe he testified that Mr. Karabasic was called out when he

23 was close to him. They were in the same room and they were

24 upstairs.

25 MISS HOLLIS: His testimony, I believe, your Honour, was that Emir

26 Karabasic was about three people away from him and his regular

27 place in the room was about three people away from Husein

28 Hodzic.

Page 8493

1 THE PRESIDING JUDGE: In the upstairs room?

2 MISS HOLLIS: In the upstairs room, your Honour, in B14.

3 THE PRESIDING JUDGE: Then just by way of chronology, let me ask you

4 whether this fits with your understanding of the testimony in

5 terms of the victims being called out. First, Mr. Alic, Mehmed

6 Alic, was on his way from lunch and the accused was outside the

7 hangar on one side of the pista wearing a camouflage uniform.

8 Then, as it relates to Mr. Mujcic, as the accused

9 entered the hangar with the group wearing camouflage uniforms he

10 saw the accused. They were not camp guards but they came from

11 outside the camp.

12 Then Mr. Kenjar: the accused was on the floor of the

13 hangar wearing a camouflage uniform some time before the calling

14 out of the victims.

15 Then Mr. Besic: in the late afternoon the accused was

16 being -- he saw him as actually engaged in calling out Hrnic,

17 telling him to come out or the others in the room would be

18 killed. Then Mr. Mujcic saw the accused in a camouflage uniform

19 standing behind a guard who had opened the door of his room in

20 the hangar and was calling out Karabasic. We have talked about

21 that; and again by Velic who saw the accused momentarily in the

22 door of his room when Hrnic was called out. There the accused

23 was wearing a camouflage uniform; and by Halid Mujkanovic, at

24 the time of the beating of the three the accused was standing on

25 the floor of the hangar but not involved in the beating. Then

26 by Grozdanic, had seen the accused in the morning when he was

27 accosted and briefly questioned by the accused on the floor of

28 the hangar. Again the accused was wearing a camouflage uniform,

Page 8494

1 and he saw him sometime later while the accused was beating

2 unidentified prisoners on the hangar floor.

3 I guess that is rather confusing, but I have some

4 questions again about the calling out and where was the accused

5 at the time and whether there is any inconsistency between Velic

6 and Besic and Mr. Mujcic. Those are really the ones. We can

7 follow it up later, if you want.

8 MISS HOLLIS: Your Honour, as to Mehmed Alic, his testimony indicated

9 he was on his way to lunch when he saw the accused, as did

10 Husein Hodzic. They were on their way to get their one meal of

11 the day when they saw the accused. Armin Mujcic testified that

12 in the afternoon when he was seated on that bench, you will

13 recall he had dysentery and sat on the bench, he saw the accused

14 and the group coming into the hangar.

15 So as for those two, that is the testimony that they

16 provided. We will check the transcript and the other evidence

17 for the other questions that you have.

18 THE PRESIDING JUDGE: OK. Thank you. You may continue.

19 MISS HOLLIS: Your Honour, I would note in response also to your

20 discussion about those distances and times that we have shown

21 those to the Defence and they are in agreement with those. As

22 you will see, basically what we did was went back through the

23 transcript and the testimony and tried to pull out the distances

24 and times as the witnesses gave them.

25 One final note before I proceed to the next

26 counts ----

27 THE PRESIDING JUDGE: Let me talk to you then about the distances.

28 Do you have listed Prijedor to Kozarac, the distance?

Page 8495


2 THE PRESIDING JUDGE: Yes, Kozarac to Prijedor, and that would be

3 what, from 10 to 15 kilometres, 10 to 11, and 11 kilometres.

4 OK. Prijedor to Omarska?

5 MISS HOLLIS: Yes, your Honour.

6 THE PRESIDING JUDGE: Yes, 22. Prijedor to Banja Luka?

7 MISS HOLLIS: We have Kozarac to Banja Luka.


9 MISS HOLLIS: Yes, we do. Banja Luka to Prijedor, we have.

10 THE PRESIDING JUDGE: Where is that?

11 MISS HOLLIS: It would be the next one down from Banja Luka, the

12 distances. It is the very first entry.

13 THE PRESIDING JUDGE: Then Prijedor to Jaskici and Sivci?

14 MISS HOLLIS: Yes, Prijedor to Jaskici, that I do not believe we

15 have. We have Kozarac, we have Kozarac to Jaskici, but we do

16 not have ----

17 THE PRESIDING JUDGE: Jaskici is to the south east, is it -- south

18 west? I am trying to determine whether we could calculate that.

19 MISS HOLLIS: South east.

20 THE PRESIDING JUDGE: If you have from Kozarac to Jaskici?

21 MISS HOLLIS: I think you should, your Honour; there may be a more

22 direct route ----

23 THE PRESIDING JUDGE: That is what I was thinking anyway.

24 MISS HOLLIS: --- but you have Prijedor to Kozarac and then from

25 Kozarac to Jaskici is three to three-and-a-half kilometres.

26 JUDGE STEPHEN: The maps do not show any more direct route?

27 MISS HOLLIS: No, your Honour, and given the location of that very

28 small hamlet, there is basically a track that you took to get

Page 8496

1 there.

2 THE PRESIDING JUDGE: You have Kozarac to Jaskici?

3 MISS HOLLIS: Yes, your Honour.

4 THE PRESIDING JUDGE: OK. I have no further questions now regarding

5 distances. You may continue, unless you have something else

6 preliminary?

7 MISS HOLLIS: Thank you, your Honour. One additional matter: in

8 checking the transcript last evening, I noticed a one word

9 difference in what I thought I had said and what the transcript

10 indicated I had said. In my mind, it is a difference of

11 significance so I would like to clarify if I misspoke.

12 When I was discussing why this accused is criminally

13 liable for all of the crimes that were committed in the hangar

14 that day, what I had intended to say was that although the

15 evidence that you have does not establish that the accused was

16 the member of the group who ordered G to emasculate Fikret

17 Harambasic, he, nonetheless, was criminally liable for that

18 act.

19 The reason I make that difference is that on page 6593

20 of the transcript it says that he was not a member of the

21 group. To me that is a difference with some significance. So

22 I point it out to you. We do believe that there are facts in

23 the record that certainly establish that at the time he

24 continued to be a member of that group but, indeed, the evidence

25 does not establish he was the person who gave the order for that

26 emasculation to be carried out.

27 Your Honours, if I could turn to the next counts, and

28 here I will deviate from the order of the counts, and I want to

Page 8497

1 talk with you about the evidence concerning counts 12 to 14 and

2 21 to 23. I will speak first of counts 21 to 23 which allege

3 crimes by this accused in the beating of Hase Icic. Then

4 chronologically following that was the beating of Sefik Sivac

5 which is the subject of counts 12 to 14. So, to keep it in

6 chronological order, I wish to speak about 21 to 23 first.

7 These counts charge that by his acts he inflicted

8 great suffering or cruel treatment or committed an inhumane act

9 against these witnesses. As for the beating of Hase Icic, 21 to

10 23, the accused's act here was a part of the overall campaign of

11 terror and intimidation that began against this witness when

12 this victim and others were first brought to the White House.

13 At that time you will recall Hase Icic told you they were made

14 to lie on the floor with their hands out in the three finger

15 Serb salute position. They were then beaten and crosses were

16 carved into their clothing or, with some of them, into their

17 skin.

18 Later, Krkan (who was identified as a shift Commander

19 at the camp and one who took people out) came to the room where

20 Hase Icic was and told everyone in that room that they had to

21 give up their money and whatever valuables they had, and that

22 they had to write their names on a list and next to their name

23 they should write what valuables and what money they were

24 providing. He indicated that if they gave enough, then they

25 would be spared any further torture. The men in that room had

26 nothing to give, so they did, in fact, put their names on a list

27 but there was nothing next to their name to show any

28 contribution.

Page 8498

1 Krkan returned to the room and took the list and left

2 the room. That night, when the men were taken to a small room

3 at the end of the corridor and beaten, they were called out in

4 the same order their names appeared on the list.

5 THE PRESIDING JUDGE: We are missing the transcript. We do not have

6 a transcript.

7 MISS HOLLIS: That night, Icic heard men saying that the

8 "executioners" were coming. He was sitting by the door of his

9 room in the White House and saw the accused and five other men

10 all in uniform. Among the other five, in addition to the

11 accused, he knew a Serb named Kevic. He also recognised two men

12 that he had seen come to Keraterm while he was held there, men

13 that had been called Duca and Banovic. There was another man

14 with them that the executioners themselves called Babic when

15 they talked to him. Krkan, this shift Commander, was also with

16 the group.

17 The accused and the other Serbs set up lighting in the

18 hallway and it was with the assistance of this lighting that

19 Hase Icic was able to see what was happening in the hallway.

20 Then the Serbs began to bring out prisoners again in the same

21 order they had signed their names on that list they had made

22 earlier.

23 Icic observed as a man who would be called out and

24 taken to the small room at the end of the hallway, then he heard

25 sounds of beating but no screams or cries. Some time later Icic

26 would see the beaten prisoner brought back out of that small

27 room at the end of the hallway and then taken to another room.

28 After 10 or 15 men had been taken out and beaten in this

Page 8499

1 fashion, the beaters took a break. They went outside the White

2 House drinking and toasting and calling each other by their

3 names. They divided up tasks by their specialities. Then

4 refreshed, they came back in and continued with their task.

5 If you will look at the overhead monitor, this is a

6 photograph of the room at the end of the hallway to which these

7 men were taken and eventually to which Hase Icic was taken when

8 his turn came. When he entered that room, a noose was put

9 around his neck and tightened to the point that he had no air.

10 The accused and the other Serbs then savagely beat him, using

11 all types of objects. As a result of this beating, he lapsed in

12 and out of consciousness throughout, only regaining full

13 consciousness in the morning. At that time he was in a

14 different room with other beaten men. A guard came in to take

15 out the dead bodies and those that were unconscious and stepped

16 on Icic who cried out in pain. For that reason, because he had

17 evoked a response from Icic, Icic was not carried out with the

18 dead or unconscious.

19 Was it this accused who committed those acts? Hase

20 Icic saw the accused there with five other Serbs. Icic knew the

21 accused since Icic was in school. The accused in his group put

22 lighting in the hallway which enabled Icic to see the accused

23 and the others. The accused was face to face with Icic when

24 Icic was taken out into that small room and beaten.

25 When the accused and the other Serbs took a break,

26 they were outside the White House addressing each other by their

27 names, including "Dule". The evidence establishes that this

28 accused committed those crimes. Did the accused intend by his

Page 8500

1 acts to cause great suffering or serious bodily injury? Again

2 the acts that were committed can be used to prove this accused's

3 intent and looking at those acts his intent is clear. Taking

4 part in putting a noose around someone's neck, tightening it

5 until they cannot breathe, loosening it only so that they could

6 maintain consciousness to be more aware of the beating that was

7 inflicted on them, at the same time the victim is savagely

8 beaten with a whip, with an iron rod, with a wooden bat, with

9 special rubber sticks, all the time while this noose is tight

10 around their neck, this is intent to cause great suffering or

11 serious bodily injury.

12 In addition to that, as this victim continued to slip

13 in and out of consciousness, the beatings continued. Looking at

14 that beating itself, in the light of the conditions at Omarska

15 camp, the regular beatings that took place there, the other

16 beatings that this accused was involved in there, and

17 remembering what Krkan told the men, "If you give enough money

18 and other valuables, it will save you from further torture",

19 satisfies this requirement. There is proof beyond a reasonable

20 of the requisite intent.

21 Was great suffering or serious bodily harm caused?

22 The evidence proves this element as well. The beating caused

23 the victim to repeatedly lose consciousness. The next morning

24 he came to in a room of men who were either battered unconscious

25 or dead. The guard who came in to collect the dead stepped on

26 the accused, and when Icic responded with a cry of pain, the

27 guard noted that Icic was alive but not for long. The evidence

28 proves beyond a reasonable doubt that the accused is guilty of

Page 8501

1 counts 21 to 23.

2 As for counts 12 to 14, the beating of Sefik Sivac,

3 that beating resulted in Sefik Sivac's death, again the evidence

4 proves that the accused is guilty of this offence. Within one

5 or two days of the savage beating of Hase Icic, the accused

6 participated in the fatal beating of Sefik Sivac. This beating

7 also occurred at night.

8 Was it the accused who committed this beating? The

9 evidence proves that it was. Sivac was beaten one or two nights

10 after the accused and others beat Hase Icic. On that night,

11 before the accused and another man appeared outside the door to

12 Icic's room, Icic heard sounds of beating outside. When the

13 accused appeared in the White House that night, Icic was again

14 near the doorway to his room facing the door with his head and

15 shoulders partly on someone's else legs. The hallway was lit

16 with lighting from some source enabling Icic to see what was

17 happening in the hallway. Icic recognised the accused as one of

18 the two men who dragged Sivac to the room and then threw him in

19 a heap at Icic's feet.

20 In addition to that, if we look at the overall plan to

21 rid opstina Prijedor of non-Serbs through killings or otherwise,

22 the evidence proves it was the accused who committed this act

23 because the accused had a personal motive, had a personal

24 reason, to beat Sivac. The words that Icic heard the accused

25 speak become clear in that context, because he heard the accused

26 say, "you see, Sivac, you cannot touch a Serb or say anything to

27 a Serb".

28 Did the accused intend to cause great suffering or

Page 8502

1 serious injury? Again the acts themselves prove his intent to

2 do so. Husein Hodzic also gave you evidence of this intent

3 because he told you when he saw the body, the dead body, of

4 Sefik Sivac the next day, the clothes were all torn, the body

5 was bloody. It was a body but did not look like a body. The

6 nature of the injuries inflicted on Sefik Sivac also prove the

7 intent that was involved in this beating.

8 You will recall that when he was thrown into the room,

9 Hase Icic, because it was dark in the room, did not know who the

10 man was but he heard the man ask for water. When water was

11 given to him, he was in such a bad state he could not even drink

12 the water that he had been asking for.

13 In addition to that, the proof of intent is the words

14 that Icic heard from the accused when he threw the body into the

15 room: "You see, Sivac, you cannot touch a Serb or say anything

16 to a Serb". What was he talking about? He was talking about

17 the testimony you heard here of the incident before these

18 attacks began in opstina Prijedor when Sefik Sivac forced the

19 accused to leave his restaurant Deluxe after a heated political

20 argument. You recall he forced him to leave. He ejected him

21 from the restaurant. You will recall that when the accused was

22 leaving he told them what would happen: "There will be a

23 greater Serbia, it will be ours, and you will not be here any

24 more". Not only did he have the motivation of carrying out the

25 persecution that was ongoing in this opstina, he had the

26 personal motivation of revenge upon a person who threw him out

27 of a cafe or a restaurant. You recall Sofia Tadic telling you

28 this accused was quite willing and capable of carrying out

Page 8503

1 violence upon people with whom he had disagreements.

2 Was great suffering or serious injury caused? Again

3 the evidence proves that it was. The fact that he was unable to

4 drink, the fact that, in fact, he died of this beating, the

5 condition of his body the next day, all of this proves that, in

6 fact, great suffering, serious injury, was occasioned by this

7 beating.

8 The accused has presented no evidence to establish an

9 alibi for these offences. You will recall that Hase Icic told

10 you that he was brought to Omarska on either 7th or 8th July.

11 He was not sure about the date, he thought the 7th or 8th July.

12 If we look at the police schedule for July, Defence Exhibit 64C,

13 if it can be considered accurate at all, it shows that the

14 accused was not working the night of the 7th of July, the night

15 of 8th July, nor was he working the night of 10th July. On the

16 9th July he is shown to be working from 1900 hours to 0700 hours

17 the following morning.

18 That schedule does not preclude him from taking part

19 in the fatal beating of Sefik Sivac for the reasons I have

20 discussed earlier. The accused would have had no difficulty to

21 leave his post, to carry out his greater duties, that is, the

22 continuing persecution of non-Serbs in opstina Prijedor, with

23 the full support and participation of the police. This is

24 especially true when you recall there was a curfew in place from

25 2100 hours to 0600 hours and that curfew was in place every

26 night. His presence would not have been required at this

27 checkpoint where his only authority was over civilian vehicles

28 during hours when there would have been no civilian vehicles.

Page 8504

1 The evidence proves beyond reasonable doubt that the accused's

2 guilt of counts 12 to 14.

3 Now if I could turn to counts 15 to 17. You recall

4 these counts involve the infliction of great suffering, serious

5 injury, cruel treatment or inhumane acts arising from the

6 beating of Hakija Elezovic and others behind the White House at

7 Omarska. The evidence of Hakija Elezovic and Samir Hodzic prove

8 those counts beyond reasonable doubt. Their evidence is

9 consistent in all significant aspects. Both men place the

10 accused in Omarska at the White House when Salih Elezovic, Sejad

11 Sivac and others were killed.

12 They both tell of Serbs forcing them and other Muslim

13 men from their homes near Trnopolje on 9th July and being taken

14 in a column to Trnopolje. The column of Hakija and the column

15 of Samir joined up somewhere along the route. They both

16 testified to people being taken out of the column and killed.

17 Hakija watched as his younger son was shot a few metres from

18 where Hakija stood. Samir's uncle was taken out of the column

19 and a few metres later on Samir heard shots and he has never

20 seen his uncle since.

21 Both men were taken from Trnopolje to Omarska, then

22 from Omarska on to Keraterm because Omarska was full. They were

23 held at Keraterm about 10 days, Samir Hodzic tells you, until

24 about 20th July. Hakija told you about his interrogation there

25 at Keraterm by the director of the Kozarac National Park and

26 about the accused's presence during that interrogation and the

27 accused at that time also beating Hakija Elezovic.

28 Hakija Elezovic and Samir Hodzic were transferred

Page 8505

1 together to Omarska and were put in the same room there, that

2 small room at the end of the corridor in the White House, that

3 same small room that had been the room where Hase Icic and

4 others had been beaten. Upon arrival at Omarska, the men told

5 you they had to lean up against the wall with their fingers

6 raised in the three finger position and they were beaten at that

7 time.

8 While Hakija was at Omarska, he told you that he saw

9 his son once on the pista but was unable to talk to him. As to

10 the events of the day when Hakija and the others were beaten,

11 Hakija told you that he was taken for interrogation twice on

12 that day, and that he and Samir were still in the same room at

13 the White House, the small room at the end of the hallway.

14 Samir told you that on that day while they were both

15 in that small room at the end of the hallway he saw Hakija

16 Elezovic taken out for interrogation twice. He told you that

17 after Hakija was taken out the second time, he never saw Hakija

18 again.

19 Hakija told you that when he was called out for

20 interrogation, he was beaten when he first arrived so that he

21 had blood in his mouth. He was unable to talk. He was

22 eventually sent back to the White House. When he was sent back

23 the second time and came to the top of the stairs, the same man

24 who had interrogated him at Keraterm, Radakovic, was there and

25 that he and some military met Hakija at the top of those stairs

26 and Radakovic said, "Oh, you are back to get it" and hit Hakija

27 causing Hakija to fall down.

28 Hakija was then taken back to the White House, but

Page 8506

1 instead of being taken into the White House, he was taken around

2 to the back of the White House. As he turned to corner to the

3 back of the White House, the accused and several other Serbs

4 were there beating men who were behind the White House. Hakija

5 told you there were many men back there. Some of them looked as

6 though they were dead already. Others were being beaten.

7 Hakija saw his son behind the White House. As he

8 turned the corner the accused met him there and the accused

9 said, "Now you have come to the right place", and the accused

10 began to beat Hakija using those same kinds of kicks he had used

11 in Keraterm, the kicks that Hakija Elezovic described to you as

12 those master's kicks, the kind he had seen in judo and karate

13 movies.

14 As he was beating Hakija Elezovic, Hakija's son,

15 Salih, cried out to let his father alone. At that time the

16 accused then stopped beating Hakija and went after Salih with a

17 pistol and Salih fell. Then Hakija Elezovic told you that he

18 was struck a very severe blow and was knocked unconscious.

19 In the meantime, Samir Hodzic and his friend Zuhdija

20 Turkanovic were transferred from that small room at the end of

21 the corridor to another room in the White House and,

22 subsequently, Samir himself was called out for interrogation.

23 When he was brought back to the White House, a guard called him

24 over to the corner of the White House, the corner nearest the

25 restaurant building. The guard asked where Samir was from and

26 how old he was, and Samir told him. At that time Samir saw the

27 accused there with several other Serbs sitting in uniform,

28 sitting on a bench, leaning up against the side of the White

Page 8507

1 House.

2 Samir was then told to go and sit about 10 metres

3 away, sitting facing the accused and the other people at the

4 White House. As he was sitting there, the guard asked him again

5 where he was from and then took Samir Hodzic around the front of

6 the White House to the other side of the White House, the side

7 closest to the hangar, took him around to the rear side of the

8 White House there, and there Samir Hodzic saw four bodies piled

9 faced down, one on top of the other. The guard told him to turn

10 the bodies over. As Samir turned the bodies over, they fell off

11 each other in a row and Samir recognised the four men, Salih

12 Elezovic, Senad or Sejad Sivac, a veterinarian from Sivci who

13 had come to Samir's home, Redzep Causevic, whom Samir had met

14 during his detention, and a man named Arslanovic, a neighbour

15 and a friend of Samir Hodzic.

16 He saw injuries on the men. On Salih Elezovic, he saw

17 a wound below his chin either from a knife or a bullet. The

18 guard asked Samir Hodzic if he knew these men. Samir lied and

19 said he did not. At some point in this, he took the shoes off

20 the body of Salih Elezovic. He stepped back. He was told to

21 leave and he went to the White House. When he testified to you,

22 he said not once did he look behind the White House.

23 Sejad Sivac, the veterinarian from Sivci, had been in

24 the hangar with his good friend Ermin Strikovic when he was

25 taken out for the last time. Sejad had been beaten previously

26 and had just recovered from that beating when he was taken out

27 again. He gave his personal belongings to his friend Ermin and

28 Ermin saw him kicked in the chest as Sejad left the room. Ermin

Page 8508

1 knew he would not see his friend again and asked around to

2 determine the time and the date, and he noted 27th July, 1420

3 hours, as the time that Sejad Sivac was taken out.

4 Not long after Samir Hodzic had returned to his new

5 room in the White House, having seen these four corpses, his

6 friend Zuhdija Turkanovic was brought back into the room.

7 Zuhdija was in pain and Samir tried to comfort him, putting

8 Zuhdija's head on Samir's legs, trying to make him more

9 comfortable. Some minutes later, Zuhdija Turkanovic died.

10 Maybe 10 to 15 minutes after that, Zuhdija was taken out of the

11 room. Later that day, Samir heard the sound of a truck nearby.

12 Hakija Elezovic regained consciousness and saw Samir

13 Hodzic with Salih. He saw Samir take his son's shoes. Hakija

14 remembers that Samir was loading the bodies and that Samir took

15 Salih and Sivac. Hakija remembers that he told Samir he could

16 have Salih's shoes. He remembers Samir and another man taking

17 him back into the White House.

18 Hakija saw his son's body close to him and he saw the

19 bodies of others as well. He saw Sivac, the veterinarian, and

20 others he knew. As he remembers it, he saw the bodies piled on

21 top of each other. He also saw the body of Zuhdija Turkanovic.

22 He told you there were many bodies behind the White House. They

23 loaded a truck full of them.

24 When Hakija was taken from Omarska camp, when that

25 camp was closed, he was taken to Trnopolje. When Samir was

26 taken from Omarska camp, when that camp was closed, he was taken

27 to Manjaca.

28 The evidence of this count proves the accused's

Page 8509

1 guilt. Hakija Elezovic and Samir Hodzic corroborate each other

2 in every significant aspect -- up until what time? Up until the

3 time that Hakija Elezovic was struck that severe blow on the

4 back of his head knocking him unconscious.

5 Both Hakija and Samir say the accused was there at the

6 time of the incident. Both Hakija and Samir say that the

7 accused had on a camouflage uniform. Hakija says that he saw

8 the accused go after his son with a pistol. Samir says there

9 was a wound below Salih's chin either from a knife or a bullet.

10 Samir told you that he never looked behind the White House. So,

11 Hakija's testimony about other bodies there is not contradicted

12 by Samir.

13 So why the differences after Hakija is knocked

14 unconscious? As a result of the severe blow to the neck, Hakija

15 was in such a deep state of unconsciousness that he was stabbed

16 in the leg with no apparent reaction. He in his testimony

17 rightly attributes his state of unconsciousness to his ability

18 to survive the beatings and the murders that occurred there that

19 day. He was mistakenly left for dead. Because it is not

20 unusual, it is something you do not have to be a doctor to know,

21 that such a severe blow can cause disorientation, can cause

22 confusion about the timing of what you see and, put in that

23 context, it is clear that there is no significant deviation in

24 the testimony of Hakija Elezovic and of Samir Hodzic.

25 You recall Samir Hodzic told you that he had to turn

26 the bodies over, to turn them face up. Hakija Elezovic comes

27 out of consciousness for a time, what does he see? He sees

28 Samir Hodzic there turning the bodies over. He sees Samir

Page 8510

1 Hodzic take the shoes off. Is it not reasonable for him to

2 assume that he is turning the bodies over and going to load them

3 because they are dead, because later when he regains

4 consciousness he does see people loading bodies.

5 This is confusion caused by the severe blow to the

6 back of the head, the severe blow that occurred after Hakija

7 Elezovic saw the accused there, was beaten by the accused there,

8 saw the other men there, saw the accused beat his son Salih.

9 This, we suggest, is the reasonable explanation for where the

10 deviation occurs after the events Hakija Elezovic's testifies

11 to.

12 Hakija's recognition of the accused and how he came to

13 match the accused's face with the name is very reasonable and

14 very realistic, and indicates that indeed it was the accused

15 that inflicted this beating on Hakija Elezovic and on Hakija's

16 son. During testimony, Samir Hodzic was questioned about an

17 earlier statement in which he had given a description of the

18 accused. His explanation for that earlier statement was

19 reasonable as well, especially in light of the difficulties we

20 know exist when it comes to translation and interpretation.

21 Basically, what Samir Hodzic told you was he saw the

22 accused and when he saw the accused the accused was suntanned or

23 sunburned. He was darker than he had seen him before. When he

24 had seen him before, the accused was pale. This certainly would

25 be reasonable in light of the fact that during these activities

26 the accused has been engaged in during this hot summer, he has

27 been outside, he would be suntanned. He could very possibly be

28 sunburned.

Page 8511

1 Samir also told you that the accused's hair was dark,

2 going to dark, that it was lighter but it was going to dark,

3 lightened by the sun. That too is not an unreasonable

4 explanation. Samir told you in this courtroom, "I gave the same

5 definition, the same description, I am giving now". Again,

6 taken in context and taken in the light of what we know are

7 difficulties with interpretation, that is not an unreasonable

8 statement by this witness. It is not an incredible statement by

9 this witness.

10 When you review the evidence on this charge and you

11 review it in the light of the reasonable explanations, it is

12 unfortunate but true that Hakija was there that day to see his

13 older son beaten by the accused and to later see his son's

14 body. But perhaps these two witnesses got together and made up

15 this story. If they did, they did not do it so well in the

16 courtroom because they both testified in variance with each

17 other.

18 In addition to that, Samir Hodzic told you that from

19 the time Hakija Elezovic left that room he did not see him until

20 1996. They were not refugees in the same country. If Hakija

21 Elezovic wanted to make up his story, to hold this accused

22 guilty because Serbs had killed his sons, then why did he not

23 put the accused at the death of his earlier son as well? He

24 could have done that; it would have made it even more convincing

25 for you . They did not do that because they did not make up

26 their stories because they told you the facts as they witnessed

27 them, as they experienced them. The inconsistencies that are

28 there are inconsistencies that are understandable.

Page 8512

1 The Defence evidence offers no alibi for this crime

2 either. Ermin Strikovic again told you that it was on 27th

3 July, it was in the afternoon, when his friend was taken out for

4 the last time. Even if you accept the schedules as accurate,

5 Defence Exhibit 64 shows you that the accused was not working on

6 that date. On 26th and 28th, he was working from 1900 to 0700

7 hours which meant he was free during the day which is when this

8 incident occurred.

9 THE PRESIDING JUDGE: I think on 27th he went to work at 7.00 p.m.,

10 did he not? Let us see if we can find it. At least the

11 Defence's submission regarding the chronological schedule of

12 alibi indicates that he went to work at 1900.

13 MISS HOLLIS: Yes, your Honour, which leaves him free during the day

14 to commit these offences.

15 THE PRESIDING JUDGE: I understand that, but I did not understand

16 that that was the information that you gave.

17 JUDGE STEPHEN: I have some questions to ask you about these counts

18 or this count. The first one is the date of the occurrence; you

19 get that not from the evidence of the two main witnesses to it,

20 but from whose evidence?

21 MISS HOLLIS: Your Honour, that is the evidence of Ermin Strikovic

22 who was a very good friend of Sejad Sivac. When Sejad was taken

23 out that last time, he noted the time and the date because he

24 was certain that he would never see his friend again. It is

25 from that evidence that we get the 27th and the time. The other

26 witnesses were not aware of ----

27 JUDGE STEPHEN: No, they were not. I wonder if you can sometime give

28 me a page reference to that?

Page 8513

1 MISS HOLLIS: Yes, your Honour, and I believe that was also in the

2 materials that were given.


4 MISS HOLLIS: We will get that.

5 JUDGE STEPHEN: Very well. Then I wanted to ask you, you must surely

6 have come across the statement by Elezovic in cross-examination

7 in which he says, "In Keraterm it was Dusko who beat me, not in

8 Omarska". Have you any comments on that statement?

9 MISS HOLLIS: I think that was a question, as I recall, about

10 Radakovic and if Radakovic was involved in beatings. I think

11 that was in response to that question.

12 JUDGE STEPHEN: That is how you would explain it?

13 MISS HOLLIS: That is my recollection of that, your Honour.

14 THE PRESIDING JUDGE: And, what, "Dusko" is Radakovic's first name,

15 you suggest?

16 MISS HOLLIS: No, your Honour. "Dusko", he was talking about Tadic.

17 JUDGE STEPHEN: Yes. He says, "In Keraterm it was Dusko who beat me,

18 not in Omarska".

19 MISS HOLLIS: Yes, your Honour. I think again it was in response to

20 a question about Radakovic. I think that the witness's answer

21 was a confused answer because of the question. Hakija Elezovic

22 says throughout his testimony that, in fact, it was Dusko Tadic

23 who did beat him and he recognised him.

24 JUDGE STEPHEN: Yes, I know. Of course we have all the problems of

25 interpretation.

26 MISS HOLLIS: Of course.

27 JUDGE STEPHEN: Then the next thing I wanted to ask you about was

28 where Hodzic says that he would have seen anything behind the

Page 8514

1 White House, had there been anything there to be seen.

2 MISS HOLLIS: Yes, your Honour. Then the follow up question to that

3 is ----

4 JUDGE STEPHEN: He did not look behind.

5 MISS HOLLIS: The follow up question was something to the effect,

6 yes, "How long did you look behind? What did you see?" He

7 said, "I never looked behind the White House".

8 JUDGE STEPHEN: So this again is a matter of some interpretation.

9 MISS HOLLIS: Some interpretation, but I believe when he was asked

10 more specifically that he indicated he never looked there.

11 JUDGE STEPHEN: Then what about the curiosity that Hodzic says

12 nothing about hearing of what must have been very prolonged the

13 beating and killing of 50 or 60 men just behind the White

14 House?

15 MISS HOLLIS: It may not have been that prolonged. Some of them were

16 dead Hakija says when he went back there. Hakija had been taken

17 out for interrogation. The beatings were, perhaps, not heard.

18 You recall shortly after Hakija went out for interrogation,

19 Samir Hodzic was removed to another room in the White House.

20 JUDGE STEPHEN: But he was still in this small White House?

21 MISS HOLLIS: That is right. The fact that the beatings were

22 occurring back there and they did not hear them, I think is

23 perhaps in the context of so many things going on at Omarska at

24 the time that it would not necessarily have been something they

25 paid attention to until the shots, if there were shots fired and

26 people were killed. You will recall that Samir Hodzic was taken

27 for interrogation, and when he came back then he found the

28 bodies in place.

Page 8515

1 JUDGE STEPHEN: The four bodies?


3 JUDGE STEPHEN: Yes, thank you.

4 MISS HOLLIS: Your Honour, the page cite in the transcript for Ermin

5 Strikovic is 2872 to 73 where he talks about the time.

6 JUDGE STEPHEN: Thank you.

7 THE PRESIDING JUDGE: I think Mr. Hodzic, though, would put this time

8 as an estimate for July 20th, does he not?

9 MISS HOLLIS: No, your Honour. He says that is when they left

10 Keraterm.

11 THE PRESIDING JUDGE: That is when they left Keraterm?

12 MISS HOLLIS: Yes, your Honour.

13 THE PRESIDING JUDGE: Sorry, I misunderstood. When he was at

14 Keraterm, then that was Radakovic -- did he testify that he

15 though Mr. Tadic was his bodyguard?

16 MISS HOLLIS: Yes, your Honour.

17 THE PRESIDING JUDGE: Was that the beating that he was talking

18 about?

19 MISS HOLLIS: Yes, your Honour, and he said he thought he was the

20 bodyguard because he did not take part in the questioning. He

21 was there and he was the one who beat him


23 MISS HOLLIS: If I could now move on to counts 18 to 20? This is a

24 count that we have discussed in some detail earlier. This is a

25 count involving Elvir Grozdanic observing the accused shove the

26 fire extinguisher hose into the mouth of the man in the

27 wheelbarrow. As you will recall the facts of that incident in

28 brief, on that date Elvir Grozdanic had to perform duties when

Page 8516

1 he was in the hangar building at Omarska. One of the duties

2 that he and the other prisoners had to perform was to clean a

3 portion of the inside of the hangar and then to take the garbage

4 to the garbage container that was located by the kitchen.

5 As he left the hangar to take the garbage to those

6 containers, he saw a group of Serbs, including Dusko Knezevic,

7 in the area of the White House near the hangar entrance. The

8 Serbs had some prisoners there and they were beating and

9 harassing them, making them eat grass like goats. This was not

10 an unusual occurrence at Omarska. You will recall that Hakija

11 Elezovic told you he was made to act like a dog and Emir

12 Beganovic told you a similar story.

13 As the prisoners would be beaten to the point they

14 could no longer respond to the instructions they were given, the

15 prisoners were then put into a wheelbarrow and pushed away by a

16 young Muslim that Elvir knew. Elvir was watching this as he was

17 walking with the garbage toward the containers. As he passed

18 toward the other side of the White House, he saw the accused in

19 a camouflage uniform. The accused had a fire extinguisher in

20 one hand and a hose in the other. He watched as the accused

21 followed the wheelbarrow with the beaten man in it, and saw at a

22 point near the edge of the pista the accused come up to the man

23 and shove the hose of the fire extinguisher into the beaten

24 man's mouth.

25 He does not recall the date of this incident. You

26 will recall from the evidence that he was brought to Omarska on

27 29th May and he left when the great majority of prisoners were

28 taken away, and we know that date to be 6th August.

Page 8517

1 We have discussed one of the issues in this case, and

2 that deals with the issue of whether this victim was alive or

3 dead at the time this fire hose was shoved into his mouth.

4 There is another issue here, and that has to do with the

5 liability of the accused. You will recall that this victim was

6 being wheeled away after he had been beaten by this group by the

7 White House, and that then when the people could no longer

8 respond they would be put in a wheelbarrow and wheeled away.

9 We suggest that the evidence indicates that the

10 accused was there that day as a part of that group, aiding and

11 abetting that group, giving encouragement to that group and,

12 therefore, this was part of the group activity when he shoved

13 that fire extinguisher into this man's mouth. We cannot forget

14 in determining liability why this beaten man was in the

15 wheelbarrow to begin with. He was in there because of the

16 earlier beatings that had been inflicted upon him by this group

17 of Serbs, including Dusko Knezevic.

18 JUDGE STEPHEN: Where does that emerge, that this was a regular

19 practice of wheeling away in a wheelbarrow?

20 MISS HOLLIS: The testimony of Elvir Grozdanic, your Honour, was that

21 as these men were beaten to the point they could no longer

22 respond to the orders they were being given, then they were put

23 into wheelbarrows and wheeled away.

24 JUDGE STEPHEN: Yes, the transcript passage I am looking at, it is

25 just that he talks of this particular man being treated in that

26 way.

27 MISS HOLLIS: Yes, your Honour.

28 JUDGE STEPHEN: It must have been assumption on the part of the

Page 8518

1 witness, I suppose.

2 MISS HOLLIS: As he was coming out, your Honour, he did testify that

3 he saw a man being beaten as he was coming out. He saw the

4 entire thing.

5 JUDGE STEPHEN: Yes, certainly. But the reason why the man was in

6 the wheelbarrow must be an assumption on the part of Grozdanic?

7 MISS HOLLIS: We are looking for the exact reference.

8 JUDGE STEPHEN: It is page 2798 and 9 -- a very helpful summary.

9 I think you had the witness actually put some stickies on the

10 photograph ----

11 MISS HOLLIS: Yes, your Honour, we did.

12 JUDGE STEPHEN: --- which demonstrates where everyone was at the

13 time.

14 MISS HOLLIS: We have those here. We can put these on. What he

15 first said he saw when he first came out was, as he exited the

16 hangar, he saw the group with Knezevic. As you see, as you are

17 looking at the White House to the left in the front of the White

18 House, as he advanced up to about the sidewalk of the White

19 House, then saw the accused on the other side of the White

20 House. As he went further to the garbage containers, ultimately

21 he was near the garbage containers and he saw the accused

22 further up. That was at the point that he saw the accused shove

23 the fire hose into the victim's mouth.

24 JUDGE VOHRAH: Miss Hollis, how would you view the fact that in this

25 particular case the witness might have had a grudge against the accused

26 after that confrontation which he had in Marsala Tita Street?

27 MISS HOLLIS: There was nothing in this evidence, I believe, your

28 Honour, to indicate that the accused saw or recognised Elvir

Page 8519

1 Grozdanic when Elvir Grozdanic saw him. So I do not know that

2 the grudge at that point would be a factor in this description.

3 THE PRESIDING JUDGE: No, I think what Judge Vohrah means is,

4 perhaps, that is a reason for him not to tell the truth. Had he

5 not ----

6 MISS HOLLIS: For Elvir Grozdanic?


8 MISS HOLLIS: He had, your Honour. There had been --

9 JUDGE VOHRAH: The parking incident.

10 THE PRESIDING JUDGE: Yes, told him to ----

11 MISS HOLLIS: That is correct. You could certainly say that the

12 accused held a grudge against Elvir Grozdanic. You certainly

13 could also think that, perhaps, Elvir Grozdanic held a grudge

14 against the accused. If we go back to his other testimony about

15 seeing the accused in the hangar during the 5 to 11 counts, then

16 I would suggest that that shows he is testifying based on what

17 he saw because he is not the only one who saw the accused

18 there. Again, if he has a grudge and he wants to really get the

19 accused, why does he not do it much more directly? Why does he

20 not say, "I saw him there killing these men". He does not say

21 that. So he is either very subtle in the way he comes across

22 with his grudge, or he was telling you what he saw and what he

23 remembered. The same is true of this incident. Why does he not

24 say, "I saw him up close. I saw him shove this into the man's

25 mouth. I saw the man struggle". He does not come across with

26 facts that would make it easier for you to decide the accused is

27 guilty. He gives you the facts as he remembers them. I think,

28 perhaps, when you look at this count and you ask yourselves,

Page 8520

1 "What other facts would I like to have to make it easy for me

2 to determine that the accused committed the offences?" you will

3 know that this witness did not give you those facts, yet a

4 person with a grudge might very well do so.

5 THE PRESIDING JUDGE: We will stand in recess for 20 minutes and then

6 when we return we will continue with this discussion.

7 (11.04 a.m.)

8 (The court adjourned for a short time)

9 (11.25 a.m.)

10 THE PRESIDING JUDGE: Miss Hollis, you may continue.

11 MISS HOLLIS: Thank you, your Honour.

12 JUDGE STEPHEN: Are you leaving 18 to 20?

13 MISS HOLLIS: No, your Honour. As I had indicated earlier, the

14 evidence proves to you that this was not an isolated,

15 independent act of the accused on this date. He was in the area

16 where these beatings, where making these people act like pigs

17 were occurring. He was present there either to aid and abet in

18 that or to encourage in that or to participate in that himself

19 directly as the victim was taken away and, to add another insult

20 to the victim, he shoves the fire extinguisher hose in the

21 person's mouth. This cannot be said to be mere presence which

22 is such that it alleviates a person of any criminal

23 responsibility, rather, it is significant presence, especially

24 in the light of the other circumstances that we know, the fact

25 that this accused was frequently in Omarska, the conditions of

26 Omarska, the very purpose for which Omarska existed which was to

27 kill, to beat, to torture, non-Serbs which was to be an integral

28 means by which they would achieve the cleansing of opstina

Page 8521

1 Prijedor of non-Serbs.

2 Viewed in that context, we suggest to you that this

3 was not an isolated act and that, therefore, the accused cannot

4 escape culpability by saying, "But all I did was independently

5 on my own stick this fire hose into this man's mouth". We must

6 remember why, if he was dead, he was dead, and it was because of

7 the beating that was inflicted upon him by this group acting

8 against this group of prisoners at Omarska.

9 The accused, of course, does not justify his presence

10 there in any way. He says simply he was never there.

11 If you were to find that the accused's actions during

12 this incident were totally independent of the actions of the

13 group, then the issue becomes whether you can have a violation

14 of Article 5 upon a dead person. In many jurisdictions, of

15 course, alternatively, you could have the possibility of

16 determining if there was an attempt on this accused's part to

17 violate the counts as they are charged, because if, as the

18 evidence would reasonably infer, this accused believed that the

19 victim was alive and he were merely continuing to add to the

20 abuse of this person, then his act would be an attempt to cause

21 serious bodily harm or great suffering, an attempt to commit

22 cruel treatment.

23 Certainly in the condition this person was in in the

24 wheelbarrow, shoving this fire hose in his mouth, even though

25 under other circumstances may not be considered to cause great

26 suffering, certainly under those circumstances it would were the

27 victim alive.

28 Your Honour, Judge Stephen, you have indicated that,

Page 8522

1 according to the evidence, it was Elvir Grozdanic's assumption

2 that this was some sort of practice. Of course, looking at

3 2799, what Elvir Grozdanic said was that the person had been put

4 in a wheelbarrow, it was a beaten up man, in front of the White

5 House, who could no longer do what they had been asking him to

6 do. So, of course, it would have been an assumption, an

7 inference, on his part from what he saw. There is no direct

8 evidence of people being put in wheelbarrows routinely and taken

9 away, although there is evidence, of course, of unconscious or

10 dead people being taken away to various places in the camp.

11 We suggest that when you look at this evidence in

12 total you will conclude that the accused is guilty of the counts

13 alleged, because he is guilty with the group of what was

14 happening there. In the alternative, we suggest if you

15 determine that in this one instance he did act alone, it was,

16 nonetheless, a violation of Article 5, inhumane acts.

17 Are there any additional questions on 18 to 20?

18 THE PRESIDING JUDGE: I had one question. On page 2799 of the

19 transcript, line 13, we will go to line 12 first, the question

20 is: "What did you see after that?" This is Mr. Grozdanic

21 talking. Answer: "After that we returned back towards the

22 dormitory and Dusko Tadic -- Dusko Knezevic and Jovic continued

23 to harass, to beat, to ill-treat the inmates who had to grunt as

24 pigs and to pick the grass with their mouth".

25 The way that I read this is the witness testified

26 "Dusko Tadic --", the Court reporter put the dash in there,

27 "Dusko Knezevic. The way that I read that, he made a mistake.

28 He said "Dusko Tadic" and he did not say "I mean Dusko

Page 8523

1 Knezevic", but with the dash and understanding our translation

2 problems, that is how I interpret it.

3 MISS HOLLIS: Your Honour, as I interpret the testimony that was

4 given, what he was saying there at the time is that as he

5 returned back towards the dormitory, Dusko Knezevic and Jovic

6 continued to harass. I do not believe he was intending to say

7 that Dusko Tadic was involved in that activity.

8 THE PRESIDING JUDGE: Then on page 2800, line 5, the question is:

9 "As you walk toward the containers, you first saw Dule Tadic,

10 is that correct?" Answer: "We first saw Dusko Knezevic and

11 Jovic down there and not far that, as we were moving towards the

12 container, we saw that Muslim and that man driving in a

13 wheelbarrow and an inmate beaten up and Dule Tadic following

14 after them".

15 The way that I read the answer is that "that Muslim"

16 that he refers to is one of the persons who had been beaten by

17 Dusko Knezevic and Jovic when he is talking previously about

18 that incident. Is that the way you read it?

19 MISS HOLLIS: He testified, your Honour, that when he was moving

20 toward the containers he saw a Muslim man whom he recognised.

21 I believe he said the Muslim man's name was Asim (sic), who was

22 actually pushing the wheelbarrow that had the beaten man in it.

23 He saw the accused following behind that. So he saw three

24 people. He saw the man he knew, Asim, pushing the wheelbarrow,

25 the beaten man in the wheelbarrow and the accused following

26 along behind that.

27 THE PRESIDING JUDGE: How was Asim involved in the previous incident,

28 that is, the one involving Knezevic and Jovic?

Page 8524

1 MISS HOLLIS: I do not believe he indicates in his evidence anywhere

2 that he saw Asim being beaten, but that Asim was there. When

3 the beaten man could no longer do what he was ordered to do, he

4 saw him put in a wheelbarrow and he saw Asim push him away.

5 THE PRESIDING JUDGE: Was the beaten man a part of the group that had

6 been beaten, jumped on and forced to act like pigs?

7 MISS HOLLIS: That is my understanding of the evidence, your Honour.

8 I believe that is what the evidence indicates, that there was a

9 group of prisoners there by the White House; that this group of

10 Serbs, Dusko Knezevic and the others, were there beating these

11 men; that they beat this man until he could no longer do what he

12 was being ordered to do. Then he was placed in the

13 wheelbarrow. He was pushed away by Asim and, as the witness

14 continued to walk toward the kitchen area where the garbage

15 containers were, then as he approached about at the sidewalk

16 level of the entry into the White House, he saw the accused.

17 Then he saw the accused follow Asim, pushing the wheelbarrow

18 with the beaten man in it. I am sorry the name was Amir. He

19 said Amir was from Prijedor and he thought he was a Muslim, and

20 that was the man pushing the wheelbarrow.


22 MISS HOLLIS: Again, your Honour, this is further evidence, of

23 course, of using prisoners to take away unconscious or dead

24 people. Many people have testified about that.

25 JUDGE STEPHEN: Miss Hollis, I wondered if there is anything that you

26 wanted to say in relation to particularly 18 to 20 -- it may

27 apply in other cases -- 18 to 20, we know nothing about the

28 date. The Defence is not only "I was never there", but it is an

Page 8525

1 alibi. Is there anything you want to say about the situation

2 when a defendant raises an alibi and yet the evidence of the

3 offence is not date specific at all.

4 MISS HOLLIS: Yes, your Honour. What I would say to that is that

5 that fact scenario does not in any way deny the accused a fair

6 trial, because there is nothing in the law that says you can

7 only prosecute crimes where a victim has a date specific as to

8 when the crime occurred. There is nothing in the law that says

9 an accused can say "I am going to raise an alibi defence" in a

10 situation where it is impossible to specify a date. So that a

11 witness who, under the circumstances, cannot give a date does

12 not deny the accused a fair trial. The specificity of the

13 allegations would preclude a second trial on the same charge.

14 That is really, we suggest, where the importance of having a

15 date or time period comes in. They have to be reasonably

16 specific so as to preclude a second charge for the same

17 offence.

18 Here the circumstances put this during the operation

19 of the Omarska camp while this witness was in the camp. We know

20 that he got there 29th May. He left there when most prisoners

21 left, and we know that was 6th August 1992. So it is specific

22 enough that he cannot be tried twice for the same offence. As

23 I said, there is nothing in the law which says you can only try

24 cases where the victim can give a specific date for it.

25 JUDGE STEPHEN: The other side of that submission, I suppose, is that

26 if somebody has what he, no doubts, regard as a perfectly good

27 defence by way of alibi, of course, it will be of no real

28 utility if you have a charge which does not have any date at all

Page 8526

1 attached to it other than a period of three months?

2 MISS HOLLIS: That is correct, unless the alibi was such that it

3 would show that the accused was not even in the area.

4 JUDGE STEPHEN: Was in the United States during that time, yes.

5 MISS HOLLIS: Exactly, your Honour, yes, but if it is less specific

6 than that, as we would have here with the suggested alibi

7 defence, less specific than that, then, no, it would not address

8 that.

9 JUDGE STEPHEN: So that is just misfortune on the part of the accused

10 that the witnesses have not been able to assign a date to the

11 offence?

12 MISS HOLLIS: What I suggest it is, your Honour, is that it is the

13 realities of situations. Again, no accused has the right to

14 raise any specific defence in a case and if the circumstances,

15 the facts, are such that would preclude raising a certain

16 defence for that, that is not unfair to the accused, that is not

17 a denial of fair trial. That is simply these are the facts we

18 have pertaining to this event.

19 JUDGE STEPHEN: Of course, I suppose an alibi defence is one that is

20 really thrust on an accused. If an accused says, "I was never

21 there", then he must have, in effect, an alibi, the two go

22 together?

23 MISS HOLLIS: He could certainly put on alibi evidence that would

24 strengthen his statement "I was never there". He would not be,

25 of course, forced to do that.

26 JUDGE STEPHEN: But unless the alibi takes him some great distance

27 away, it is not going to be useful because of the absence of a

28 date.

Page 8527

1 MISS HOLLIS: That is correct, your Honour, and then I suggest what

2 you have at that point is what you have without a specific alibi

3 defence, and that is what you are left to do is the task you are

4 about to perform.


6 MISS HOLLIS: That is, to evaluate the credibility of these

7 witnesses. One of the factors is what other evidence supports;

8 you do not have to have that in evaluating it. So you are

9 thrust back to an evaluation of the credibility of the witness.

10 JUDGE STEPHEN: So really you are saying that the defence in a case

11 such as this has two responses to the charge; first of all, his

12 denial and then a backup to that by way of the alibi ----

13 MISS HOLLIS: Or he has ----

14 JUDGE STEPHEN: --- and in this particular instance the backup does

15 not avail him but there is still the denial.

16 MISS HOLLIS: He has the denial and then to support that he has the

17 alibi and here that does not support him. We suggest that,

18 looking at the evidence as a whole, this supposed alibi defence

19 does not support him either. But certainly in this instance

20 where there is no specific date, he would not be able to avail

21 himself of that specific alibi evidence.

22 JUDGE STEPHEN: Yes. Thank you.

23 THE PRESIDING JUDGE: Just with regard to your last statement, it is

24 your position that the alibi does not support his position.

25 That, I guess, is because it is your position that even when the

26 spreadsheets indicate that Mr. Tadic was on duty, that it is

27 your position that he was free and had every ample opportunity

28 to engage in the higher duty, as you have referred to it, is

Page 8528

1 that what you are saying?

2 MISS HOLLIS: Yes, your Honour.

3 THE PRESIDING JUDGE: But we certainly could not find as we possibly

4 could find for counts 5 through 11, for example, where the

5 evidence shows that the incident occurred on June 18th and the

6 accused, according to the time sheets, did not go on duty until

7 9.00 p.m., we could not find for this count that the accused was

8 off duty, could we? How could we find that he was off duty?

9 MISS HOLLIS: For this count?


11 MISS HOLLIS: No, your Honour.

12 THE PRESIDING JUDGE: Because there is no date.

13 MISS HOLLIS: What I am saying is that, assuming that he had police

14 duties at the time, those would not avail him of an excuse, an

15 avoidance of criminal liability for the reason we have already,

16 and that is that the police were an integral part of what was

17 going on. If I could use an example from the United States, if

18 we were to have a person who was accused of beating up blacks in

19 the south in the 50s and the person's excuse was, "Well, I could

20 not do that because I had a job at the time", and then the

21 question was ----

22 THE PRESIDING JUDGE: I wish you would use another example.

23 MISS HOLLIS: --- "What kind of a job did you have?" and he said,

24 "Well, I worked for the Ku-Klux-Klan at the time", that would

25 not avail him of an alibi so as to excuse him from criminal

26 liability because, of course, as history shows, the Ku-Klux-Klan

27 was bound up inextricably with mistreating blacks during the

28 50s. The police in Prijedor were bound up inextricably with the

Page 8529

1 persecution that was going on there.

2 Mr. Prpos's testimony and the other policeman's

3 testimony simply is not credible when they say, "Of course not;

4 people had to be on these traffic checkpoints", even though

5 there was very little traffic, even though there was a curfew,

6 even though there was fuel rationing, "We had to have all these

7 people there, three civilian policemen just to check the

8 civilian vehicles at all times. But, of course, I know nothing

9 about all these other bad things that were going on. So all I

10 can tell you is my people did not get involved in it".

11 I suggest to you that when you look at the overall

12 circumstances here, No. 1, they did know what else was going on;

13 No. 2, they were certainly present when some of these things

14 happened and certainly with Mr. Prpos his traffic policemen were

15 involved in some of that. So it is not true that their

16 checkpoint duties precluded that.

17 JUDGE STEPHEN: Can I just better understand what you are saying?

18 Are you saying that the records that we have seen have been made

19 up in order to provide some defence for the accused?

20 MISS HOLLIS: I am saying that those records ----

21 JUDGE STEPHEN: Because if they have, of course, they have been a

22 great failure because over and over again they give the wrong

23 dates ----

24 MISS HOLLIS: That is right.

25 JUDGE STEPHEN: --- from that point of view.

26 MISS HOLLIS: I am not saying they have been made up.

27 JUDGE STEPHEN: Then what are you saying? Are you saying that they

28 bothered to fabricate these detailed records to give a cover for

Page 8530

1 other duties?

2 MISS HOLLIS: I am saying that what they did was, and what I believe

3 the evidence suggests to you, they used these, they would assign

4 people to checkpoint duties. No doubt, there were times when

5 they were at the checkpoints. I am not saying that at all.

6 What I am saying is that, even though they had those duties,

7 they were free to leave those checkpoints to carry out these

8 other taskings, because they were part of the police who were

9 part of this overall effort.

10 JUDGE STEPHEN: Yes, I follow that.

11 MISS HOLLIS: In regard to whether they were made up or not, I would

12 not suggest that. I say that, however, having made it clear at

13 an earlier time that we were never given the opportunity to even

14 look at these records first-hand to verify where they came out

15 of, what sort of record-keeping was kept. When we took our trip

16 to opstina Prijedor, Mr. Drljaca would not even deign to show us

17 records, let alone let us make copies of them. So we do not

18 know first-hand that they are accurate. It would appear,

19 though, as you say, that certainly I do not think they are made

20 up. I just think they are of no use because I think he could be

21 free to leave to do what he wished.

22 JUDGE STEPHEN: Yes, I follow that. Thank you.

23 THE PRESIDING JUDGE: The patrol records that relate to the times

24 that the accused is indicated to have served at Orlovci, those

25 are not in evidence, are they? The patrol records for the time,

26 or at least some of them, when he served as a policeman in

27 Kozarac are, because I think one of them was used in

28 cross-examination of Mr. Vujanovic, but there are no patrol

Page 8531

1 records for this time, are there?

2 MISS HOLLIS: No, your Honour, not in evidence. The patrol records

3 that we used, I believe, covered the 1st and 2nd September,

4 I think, the 3rd and 4th or 4th and 5th September and 5th and

5 6th.

6 THE PRESIDING JUDGE: Those would have been prepared by the shift

7 supervisor, I gather?

8 MISS HOLLIS: I believe that is correct or they were written out by

9 the people performing the duty and then verified.

10 THE PRESIDING JUDGE: OK, fine, thank you.

11 MISS HOLLIS: Your Honour, before turning to counts 24-28, are there

12 additional questions on 18 to 20? In regard to some of the

13 questions you had asked earlier, Judge McDonald, relating

14 to -- before I get to that, if I could go back to Judge

15 Stephen's questions about Hakija Elezovic and the context in

16 which he said "Keraterm, not in Omarska". Page 2892 of the

17 transcript, I think, gives the question and answer and the

18 exchange so you can see the context better. I believe that

19 actually looking at this he was confused about, "Was this the

20 time Dusko beat me in interrogation?" He says, "That was

21 Keraterm, not Omarska". The questions were basically as

22 follows, starting on line 24 of 2892, and the question was:

23 "Radakovic did not interview you in Omarska; he just happened

24 to be in the ---", and the answer is "No", "-- interrogation

25 centre" follows on. "He was in a first room as you came up the

26 stairs", is the answer. Question: "So you came across this man

27 in the two places, Keraterm and Omarska?" "Yes". "After you

28 had been interviewed, you then went to the White House but were

Page 8532

1 taken around the back of the White House where you have told us

2 you were badly beaten by Dusko. Is that right?" "In Keraterm,

3 it was Dusko who beat me, not in Omarska". I think again the

4 witness is still thinking about the interrogation incident. He

5 was beaten in interrogation at Keraterm. He was not beaten

6 during interrogation at Omarska. It was afterward.

7 JUDGE STEPHEN: Thank you.

8 MISS HOLLIS: Then if we can now, Judge McDonald, go back to some of

9 your questions, for example, Ferid Mujcic.

10 THE PRESIDING JUDGE: I had one question, excuse me, as 18 to 20.

11 Mr. Uzeir Besic testified -- I have not looked recently at the

12 transcript, but he was one of the earlier witnesses -- about

13 seeing Mr. Tadic jump on persons and beat them. Was he

14 referring to 18 to 20?

15 MISS HOLLIS: No, your Honour.

16 THE PRESIDING JUDGE: He was talking about Prijedor, was he?

17 MISS HOLLIS: No, your Honour, he said that when he was in Omarska

18 camp he was on the pista ----


20 MISS HOLLIS: --- and a day that he was on the pista, they were

21 sitting looking towards the restaurant building. He heard the

22 noises, the cries, the yells, from what appeared to be behind

23 the restaurant building. Then he looked and he saw the men, he

24 says, who had already come out. So it is not clear if he means

25 out of the restaurant or from around the back of the

26 restaurant. He saw them and the accused, and then everyone on

27 the pista was ordered to lie down.

28 So he lay down on his stomach on the pista. Then, as

Page 8533

1 he was lying there, he heard moans. He looked to the side where

2 the men whom he had seen at the restaurant building were now

3 lying next to him, close to him, on the pista. He looked over

4 there, saw these men lying there, and that is when he saw the

5 accused jumping on these men and beating these men. So it was

6 men lying near him on the pista that he saw.

7 THE PRESIDING JUDGE: So that is not involved in ... OK. You may go

8 ahead, 24.

9 MISS HOLLIS: I do not believe so, your Honour.

10 MISS HOLLIS: First of all, I asked you the questions you had

11 asked about 5-11, your Honour. As to Ferid Mujcic, he indicated

12 that he saw the accused. It was when Emir Karabasic was taken

13 out, and he said, "Do you know who it is that took out Emir

14 Karabasic?" This is on pages 1813 to 1815. He is asked, "Do

15 you know who it is that took out Emir Karabasic?" He said, "The

16 guard opened the door and called out his name". "When the door

17 was open, did you look out of the door?" "Yes". "When you

18 looked out of the door, what did you see?" "I looked through

19 the door and I saw Dusko Tadic standing behind the guard, and

20 with him another, slightly taller. They were standing about a

21 metre-and-a-half to two behind the guard". So he indicates it

22 was the guard, your Honour.

23 Muharem Besic ----


25 MISS HOLLIS: --- indicates that in response to a question, "The door

26 was opened when Jasko finally left the room?" "Yes, exactly.

27 Jasko opened the door. At the very door there was a lot of

28 people right around the door", and he is talking, your Honour,

Page 8534

1 about inside the door. "They were almost on top of each other

2 so that you could not just go straight to the door. You had to

3 walk and avoid people's feet or hands or heads". "Do you know

4 how long the door remained open after Jasko left?" "When Jasko

5 went out, you could see Dule clearly, and as he", meaning Jasko,

6 "was stepping over the doorstep, Dule cursed his mother and you

7 could hear a blow".

8 When he talks about hearing someone called out, he

9 says he heard the name and then he looked up and he saw that

10 Dule Tadic was there. He said he thought he recognised the

11 voice as Dule Tadic's, but he told you that he did not see the

12 person as the name was being called out.

13 THE PRESIDING JUDGE: So you are saying he did not see the person

14 while they were being called out, but did after the door was

15 opened?

16 MISS HOLLIS: Yes. He also said that he did not actually see a blow

17 delivered; he heard a blow after Jasko went out.


19 MISS HOLLIS: Emsud Velic ----

20 THE PRESIDING JUDGE: What page of the transcript was Besic's

21 testimony?

22 MISS HOLLIS: That was 2683, 2684. When Velic is talking, Velic says

23 on pages 3421 at line 22, when he is asked in part "Did you

24 recognise the guard that came to the door first of all?" "No".

25 "You told us that it was the guard who opened the door first of

26 all". "Yes". "Did the guard come into the room?" "No".

27 Then on 3423 he is being cross-examined, he said, "You

28 spent longer looking at the ground ---" He said, "I do not

Page 8535

1 think so". The end of the question was, "-- than you did at the

2 door?" He says, "I do not think so. I did not know. I spent

3 much time looking at the door than to the ground".

4 THE PRESIDING JUDGE: That is not inconsistent, Velic and Besic?

5 MISS HOLLIS: No, your Honour.

6 THE PRESIDING JUDGE: One sees Mr. Tadic, one sees a guard, open the

7 door?

8 MISS HOLLIS: No, because he sees that it was the guard who opened

9 the door, he said. He said that he saw a guard at the door. It

10 was a guard who came to the door, opened the door. That is what

11 got his attention when the door opened. Then he says that he

12 looks to the door, he sees the guard at the door and he sees

13 Tadic. This was the first time that Jasko was called out, the

14 time that he did not respond. Then the second time that Jasko

15 was called out when he did respond, Velic told you at that

16 time "I thought I saw him, but I am not 100 per cent sure",

17 "him" meaning "I thought I saw the accused again at the door

18 but I am not 100 per cent sure".

19 THE PRESIDING JUDGE: Then Besic then is talking about the second

20 time that he was called out?

21 MISS HOLLIS: He is talking about the time when Hrnic actually goes

22 out of the door.

23 THE PRESIDING JUDGE: And sees the accused?


25 MISS HOLLIS: In regard to Emsud Velic on that point, on 3410 he

26 begins to say on line 2: "While the door was opening and there

27 was one of the guards opening the door", and while he was

28 opening the door then Jasko was going to the door. I am sorry.

Page 8536

1 "As the guard opened the door, the guard was going with the

2 door, leaning on the door", and then he says that he saw the

3 guard and he saw Dusko Tadic in the doorway.

4 You will recall that Emsud Velic told you that he saw

5 Tadic looking at people, looking around at the people in the

6 room, but he also says that it was a guard there at the door

7 that he saw as well as Dusko Tadic.

8 THE PRESIDING JUDGE: What about Kenjar and Grozdanic in terms of the

9 calling out?

10 MISS HOLLIS: Yes, your Honour. Your Honour, before that, I do have

11 for Armin Mujcic again on pages 2762 and 2763, Armin Mujcic

12 indicates that he is, as I said, sitting on this bench or table,

13 low table, near room A15. He looks over and he sees the accused

14 and the group coming from the direction of the WC. He does not

15 in his testimony say that he actually saw them come in the door

16 into the hangar. He would not have been able to see that from

17 where he was. So he hears "The mottled ones are here". He then

18 hurries to try to get into the room. He looks back and he sees

19 the accused and this group coming in the direction of the WC.

20 In relation to Kenjar, what was your specific question

21 about him, your Honour?

22 THE PRESIDING JUDGE: What was his testimony regarding the calling

23 out of persons?

24 MISS HOLLIS: On page 2565 he begins that and he indicates that he

25 heard the name Jasko Hrnic called and he said first he was

26 called out Asko Hrnic. We understood that they were calling out

27 Asko Hrnic at that point. Then he is asked about Enver Alic and

28 he goes on. Down on line 32 on the page it says, "When Jasko

Page 8537

1 Hrnic was called out as Asko, did he go out right away? Did he

2 respond?" "No".

3 Then on 2566, the question is asked, "Was he called

4 out more than once?" "Yes, yes. We heard Jasko Hrnic being

5 called out, but I cannot remember. Perhaps it was several

6 times. We heard it once at that place where we were". "Did

7 Jasko finally respond or say anything to the calling out of his

8 name?" "Only when the door opened, Jasko said 'There is Jasmin

9 Hrnic here, there is no Asko'. Then the individual who was in

10 the doorway in front of the door said, 'It is you we need'."

11 Then he says, "From that position, were you able to see the

12 door?" Armin Kenjar says, "No", from his position he could not

13 see the door. So he is telling you what he heard.

14 Elvir Grozdanic, as you recall, was in the WC. He had

15 been taken there by his Serb friend, the guard at Omarska, and

16 was hiding there. When he came out, as he went to his room,

17 that was when he saw Jasko Hrnic. He did not indicate he heard

18 any of the people being called out from his hiding place in the

19 WC.

20 JUDGE STEPHEN: While you are dealing with counts 5 to 11, I am

21 missing page 36 of your very useful excerpts from the transcript

22 dealing with 5 to 11.

23 MISS HOLLIS: We will rectify that right now, your Honour.

24 JUDGE STEPHEN: Can you? Thank you very much.

25 MISS HOLLIS: I apologise for that. Your Honour, Judge McDonald, do

26 you have any additional ----

27 THE PRESIDING JUDGE: Did Ferid Mujcic identify the accused as being

28 called out?

Page 8538

1 MISS HOLLIS: I am sorry?

2 THE PRESIDING JUDGE: Did Ferid Mujcic identify the accused as being

3 called out?

4 MISS HOLLIS: The accused as being called out?

5 THE PRESIDING JUDGE: I am sorry. Did he identify the accused as

6 calling out Karabasic?

7 MISS HOLLIS: Your Honour, he did not indicate that. He said that

8 the guard called him out. Are there any additional questions on

9 5 to 11?

10 THE PRESIDING JUDGE: Is there any evidence that anyone saw Mr. Alic

11 being beaten?

12 MISS HOLLIS: Your Honour, I do not believe that we have -- we do

13 have evidence, I believe, from -- just a moment, your Honour.

14 Your Honour, Armin Mujcic indicated that he saw Eno Alic and the

15 others being beaten. You recall he said he had finally gotten

16 into A15. He was up on the landing. He said he saw them beaten

17 and it was by a group of Serbs. He said he thought it was the

18 group that the accused had come in with. He did not identify

19 the accused as being there with them when that beating he

20 observed was going on.

21 THE PRESIDING JUDGE: Is there any conflict, as you see it, or

22 inconsistency between Ferid Mujcic's testimony regarding the

23 calling out of Karabasic and Hodzic's testimony?

24 MISS HOLLIS: Yes, your Honour. Yes, your Honour. There is

25 certainly a contradiction in that Ferid Mujcic says that Emir

26 Karabasic is called out of room A17. Husein Hodzic says that

27 Emir Karabasic is called out of the room upstairs, B14.

28 I believe that that confusion is explained by the fact that Emir

Page 8539

1 Karabasic visited with Jasko Hrnic in that room and that, in his

2 recollection of those events, Mr. Mujcic confused an occasion

3 when he was in the room with that occasion when he heard the

4 name Armin Karabasic called out, because Emir Mujcic then does

5 tell you that he also heard and saw when Jasko Hrnic was called

6 out of the room.

7 THE PRESIDING JUDGE: And they were not in the same room?

8 MISS HOLLIS: They were not in the same room. Jasko Hrnic in A17 and

9 Emir Karabasic was upstairs in that big room, through the

10 stairwell room, up in B14 upstairs.

11 THE PRESIDING JUDGE: So he could not have seen both of them called

12 out of the same room?

13 MISS HOLLIS: No, your Honour.

14 THE PRESIDING JUDGE: Why do you say it can be explained by the fact

15 that Karabasic visited the room?

16 MISS HOLLIS: Because I think, your Honour, in his recollection he is

17 confused about seeing Emir Karabasic in that room. Jasko Hrnic

18 was in the room. He had been very badly beaten. He used that

19 table as his resting place. In Ferid Mujcic's testimony, he

20 said Emir Karabasic was there in the room up on the table

21 sitting there with Jasko Hrnic. No doubt, when Emir Karabasic

22 would come to visit Jasko in that room, he would sit up there on

23 that table. So I believe it was his seeing him there on earlier

24 occasions that led to his confusion about that day.

25 THE PRESIDING JUDGE: Could you hear persons being called out from

26 the upper room? As I recall ----

27 MISS HOLLIS: Yes, your Honour. It was very open.

28 THE PRESIDING JUDGE: --- there was testimony that persons would come

Page 8540

1 to the bottom floor, I thought, and call out.

2 MISS HOLLIS: They called out and also because of the openness of the

3 upstairs, you were able to hear people called out. You recall

4 that people in room 15 told you they heard people called out.

5 Again this was a very open repair type facility with some

6 offices upstairs, but with this huge hangar area. Offices had

7 windows on to the hangar area, and you were able to hear from

8 there. People did testify that they did hear people being

9 called out. You are correct for room A15, for that entire huge

10 area which comprised A15 on the ground floor, the stairwell

11 going on up and the corridor upstairs and B14, the guards did

12 not go up there.

13 THE PRESIDING JUDGE: So could Mr. Mujcic have heard Mr. Karabasic

14 being called out?

15 MISS HOLLIS: Yes. He was on the ground floor in A17. He certainly

16 could have heard that. Again you are correct that the guards

17 did not go upstairs into that big room. It was too crowded.

18 They probably even in that setting would have felt somewhat

19 insecure trying to push their way through all those prisoners to

20 go upstairs. So for the A15 area, they went there and called

21 out and then people heard that upstairs as well as it was

22 relayed upstairs.

23 THE PRESIDING JUDGE: So he could have heard him being called out but

24 could not have seen him.

25 MISS HOLLIS: That is correct.

26 THE PRESIDING JUDGE: Thank you. I have no further questions

27 regarding that.

28 MISS HOLLIS: Your Honour, for this next portion of the argument at

Page 8541

1 some point I am going to ask that we go into closed session

2 because of the nature of the testimony one of the witnesses gave

3 in closed session. I do not know if it is going to take a few

4 minutes to do that or not? Five minutes.

5 THE PRESIDING JUDGE: How long do you expect it will take you to

6 present your closing for counts 24 to 28?

7 MISS HOLLIS: This is 24 through 28 and then 29 through 34.

8 THE PRESIDING JUDGE: You need a closed session for both or just 24

9 to 28?

10 MISS HOLLIS: No, just a portion of 24-28.

11 THE PRESIDING JUDGE: How long do you think you will need then for

12 the 24-28?

13 MISS HOLLIS: For the closed?

14 THE PRESIDING JUDGE: I thought that you would just need a portion of

15 the time for closed ----


17 THE PRESIDING JUDGE: --- for 24 to 28.

18 MISS HOLLIS: I am sorry, private session.

19 MR. WLADIMIROFF: May I just say just to the Court simply to switch

20 off the sound so we can proceed without having the curtains

21 down?

22 MISS HOLLIS: If both the sound and the feed from the overhead

23 projector is switched off, of course, we have no objection to

24 that. Again, if we are talking about perhaps, depending on

25 questions, five to 10 minutes, I would say.

26 THE PRESIDING JUDGE: It will be before lunch in any case. That is a

27 good suggestion then. Do you have any objection to proceeding

28 without the sound, and you were going to use the Elmo?

Page 8542


2 THE PRESIDING JUDGE: Do you have extra copies of what you were going

3 to use? Is that what would be necessary?

4 MISS HOLLIS: We do have extra copies and then perhaps we would not

5 have to use the Elmo either.

6 THE PRESIDING JUDGE: Mr. Wladimiroff, do you have any objection to

7 hearing this portion of the closing statement in closed

8 session?

9 MR. WLADIMIROFF: No, your Honour.

10 THE PRESIDING JUDGE: Thank you. Then you need to tell us when you

11 want to go into closed. Now?


13 THE PRESIDING JUDGE: OK. You give us the sign and then the

14 technician will take care of it.

15 MISS HOLLIS: Your Honour, turning now to counts 24 to 28, these

16 counts charge the accused with the killing of four men at the

17 Kalate junction in Kozarac on 27th May 1992. The evidence was

18 presented by three witnesses and the evidence proves the crimes

19 charged. The men taken out that day have never been seen since

20 that time.

21 THE PRESIDING JUDGE: Excuse me one minute. We will give the sign

22 when we need to go into closed. We are in open now.

23 MISS HOLLIS: The men taken out that day have never been seen since

24 that time. The evidence proves, in addition to the fact that

25 these men are dead, that the accused is the one who committed

26 the killings. On 27th May, you recall the testimony that a very

27 long and very large column of Muslims was surrendering from

28 various locations in the Kozarac area, including Brdjani and

Page 8543

1 Vidovici. In that column were Salko Karabasic and his son,

2 Sejdo, Sulejman Besic and Ferid Mujcic. Salko Karabasic,

3 Sulejman Basic and Ferid Mujcic were in different places in that

4 column.

5 Your Honour, as you had mentioned earlier, witness U

6 testified that on that date he was also in that column, but you

7 will recall also that he testified that he was at the head of

8 the column and that he actually reached the intersection of the

9 main road at 8.30 or 9 o'clock in the morning. This incident

10 occurred in the afternoon. So he was certainly in the very

11 forefront of that column, this very, very long column. He would

12 not have been in a position to see this incident.

13 As the column made its way from Brdjani toward the

14 Mutnik mosque, armed Serb soldiers were on the sides of the road

15 and there was a tank there as well. When the column reached the

16 intersection with the Marsala Tita Street at the Mutnik Mosque,

17 a Serb soldier directed the column to go left and go down

18 Marsala Tita Street toward the new Prijedor/Banja Luka highway

19 intersection.

20 People were sent on from there to separation points

21 where men and boys aged 15 and over were separated from women

22 and children. The column was indeed very long, and sometimes

23 spread out in spots, sometimes more bunched up and in other

24 areas very spread out.

25 As the portion of the column Salko, Sulejman and Ferid

26 was in came towards the Kalate intersection, each of them saw a

27 part of a crime that was committed there. All three men passed

28 by the location of the two kiosks on the corner of Marsala Tita

Page 8544

1 at the Kalate junction. The kiosk faced on to Marsala Tita

2 Street. Before they passed there, or as they were passing, all

3 three men saw Muslim policemen lined up against the kiosk there,

4 at least some of whom they all knew. All three men saw the

5 accused whom they knew there with Goran Borovnica whom they also

6 knew. All three men saw the accused and Borovnica armed.

7 As Salko Karabasic approached the intersection, he saw

8 the accused and Goran Borovnica there. If you will look at the

9 overhead, we have here a copy of the diagram that he created for

10 you during his testimony. You see that he marks where the

11 column was. On there he marks where he saw the accused and

12 where he saw Borovnica as he approached that intersection.

13 He told you that as he approached that intersection,

14 he saw his brother Ismet and Redzep Foric had already been

15 singled out of the column and were already at that chicken

16 kiosk. Then he saw the accused ordering Goran Borovnica to take

17 certain men from the column. Those men included Salko's brother

18 Ekrem and then his son Sejdo and a man that Salko Karabasic

19 referred to as Meho Mujkan. As the accused would order it,

20 Borovnica would do it. Then at that point Salko was forced to

21 go on with the column and he saw nothing of what had happened

22 after that.

23 Ferid Mujcic also saw the accused at that junction and

24 he also saw Goran Borovnica at that junction. Again if you will

25 look at the overhead, you will see the diagram that Ferid Mujcic

26 created for you showing where he saw these people. You will

27 recall that he told you he saw the accused there standing behind

28 Goran Borovnica. Goran Borovnica was standing behind the men

Page 8545

1 who had already been called out and men who had already been

2 placed up against the chicken kiosk.

3 The men that he recognised who were placed up against

4 the chicken kiosk were Ismet Karabasic, Ekrem Karabasic, Sejdo

5 Karabasic, Redzep Foric and a fifth person about whose identity

6 he was uncertain, telling you that perhaps it was Fikret Alic

7 but he was uncertain about that. He testified that he saw Goran

8 Borovnica strike one of the policeman, Ekrem Karabasic.

9 He testified that he saw Sejdo Karabasic, Redzep Foric

10 and this fifth man about whose identity he is uncertain being

11 taken across the front of the column to the other side of the

12 street. Then his portion of the column was again forced to walk

13 faster and he moved on. At this point, your Honour, we will go

14 into private session.

15 THE PRESIDING JUDGE: We will go into private session at this time.

16 The sound will be turned off as well as the connection to the

17 Elmo.












Page 8546

1 (Private Session)












13 Pages 8546 to 8553 redacted in Private Session
















Page 8554

1 (Open Session)

2 THE PRESIDING JUDGE: We are now in public session. Go ahead. You

3 may continue.

4 MISS HOLLIS: Thank you, your Honour. Turning now to counts 29 to

5 34, you recall these are the counts that arise from the rounding

6 up, beating and killing of the men ----

7 THE PRESIDING JUDGE: Do you need to go into private session on any

8 of these? Did we not receive some names on sheets of paper?

9 MISS HOLLIS: No, your Honour. Your Honour, I am going to refer to

10 that exhibit and the letters that were indicated on that exhibit

11 and that was Prosecution Exhibit 285. There were letters for

12 people who were killed and there were numbers for people who

13 were beaten and taken away.

14 Your Honours, you will recall that the evidence of

15 this incident is that on 14th June 1992 the accused and other

16 Serbs were involved in the rounding up and taking away of Muslim

17 men in the village of Sivci and the hamlet of Jaskici. You will

18 recall from the testimony that Jaskici can be reached from Sivci

19 by following a track that runs through the woods and forest, and

20 it can be reached if you are walking in about 10 minutes. So

21 the hamlet is basically behind Sivci. The evidence here proves

22 the counts beyond reasonable doubt.

23 As far as for the murders, the witnesses from Jaskici

24 established that the victims A through E are dead. They also

25 established that victims 1 through 14 were viciously beaten,

26 some of them passing out from the beatings and then taken away

27 never to be seen again, except for one man, Salih Softic, who

28 was later seen in Trnopolje camp. Six witnesses testified.

Page 8555

1 Five of them testified that the accused was the one who

2 committed the alleged offences. One of the six did not know the

3 accused. Four of the five who said that the accused committed

4 the offences knew the accused from before. The fifth person,

5 Zemka Sahbaz, recognised the accused when shown a photographic

6 lineup. All of these witnesses had the opportunity to see the

7 accused from a close distance during the day. One of the

8 witnesses reacted with relief when she saw the accused there,

9 thinking that since he knew her he must know some of the men in

10 that hamlet, so that perhaps the killings and other mistreatment

11 would not occur. The evidence in the case proves that her

12 relief was unwarranted.

13 On 14th June 1992 when the accused and these other

14 Serbs carried out this roundup they began in Sivci. At about

15 1.00 p.m. on that day Serb soldiers came to the home of Sakib Sivac

16 who lived in Sivci and took him from his home. They took him

17 and other Muslim males to another Muslim home in the village,

18 making them run, lie down, run again, lie down all the way.

19 They beat the men as they ran. Some of them were beaten quite

20 badly. When they arrived at a particular house they were kept

21 there in the yard until buses came, and then they were loaded on

22 to buses. Sakib Sivac got on to the rear door of the last bus.

23 He told you that as he was moving in this column toward the

24 buses the column was moving very slowly. He told you that

25 people were keeping their heads down trying not to look so as to

26 invite further abuse. He was keeping his head down, but when

27 the column slowed down he looked up to see what was going with

28 the column. He told you at that time he recognised the accused

Page 8556

1 and another person that Sakib Sivac knew, a person by the name

2 of Cavic.

3 He saw the two of them. He recognised the two of them

4 and then he continued moving on to get on to the bus. He told

5 you that he knew Cavic better than he knew the accused, that he

6 had socialised with Cavic, and that he continued to look at

7 Cavic, he told you possibly thinking that Cavic could help him.

8 He continued to look at him and his continued looking at Cavic

9 resulted in a push which moved him onward. When he got the push

10 he turned in the direction of the push. At that moment he saw

11 the accused wearing a camouflage uniform and carrying an

12 automatic weapon. So he saw them as he came up, and then as he

13 went past them he got the push and he turned and saw the accused

14 standing face to face, just a rifle's length away from him.

15 He also told you that he got on to the bus then. He

16 got on to the bottom step. He was facing outward through the

17 glass doors. He was able to see the accused and look at him

18 then as the bus was there, and then began slowly to move away.

19 He testified to you that he was taken from that village to

20 Keraterm camp.

21 Later that afternoon before 3.00 p.m. the accused and

22 other Serbs left Sivci and went to Jaskici, a hamlet of Muslim

23 families and one Catholic family. The Serbs went down that path

24 that runs between Sivci and Jaskici. The people in Jaskici that

25 day were in their homes, Sunday afternoon. When the accused and

26 the others got to the homes of Abaz and Nijaz Jaskici, the

27 houses near Sivci, the inference from the evidence is that they

28 called these men out as well. The two men there, Abaz and

Page 8557

1 Nijaz, were shot in the field behind the home of Ilijaz

2 Elkasovic. Sena Elkasovic told you when she looked out the

3 window she saw these men back in what she called her vegetable

4 garden area.

5 Several of the people in Jaskici first knew the Serbs

6 were coming and were there when they heard loud gunfire close at

7 hand. That was Sena and Senija who told you that. The evidence

8 also suggests that at that time the Serbs separated, some Serbs

9 going to Abaz and Nijaz, going to the bodies, and the accused

10 and others going on down the path to Jaskici. The accused and

11 one other went to the home of Huso Jaskic and called out his

12 son, Ismet Jaskic, and a relative who was there, Hasan

13 Jakupovic, one of the many refugees who was that day in the

14 village of Jaskici, having been driven from their homes in other

15 areas of the opstina.

16 While the accused was doing that, was bringing out

17 Ismet and Hasan, other Serbs went to the home of Salko Jaskic

18 and Draguna Jaskic and called all the people there out, men and

19 women included. When the people came out the men were placed

20 over by the garage or barn area, and the women and children were

21 put by the house steps. One of the soldiers in Draguna's house

22 fired in the house. While the people were outside the house

23 Draguna saw the accused bringing Ismet and Hasan from Huso's

24 house toward hers.

25 For your assistance we have prepared a demonstrative

26 aid based on her testimony to show you where it is she said she

27 first saw the accused as she stood outside her house. As you

28 look at the photo you can see at the very left corner what

Page 8558

1 appears to be the very bottom of her steps. She told you that

2 the women and children were there at that position, and that

3 when she saw the accused he was back over in the area where this

4 X is. He was coming down the road from Huso's house toward

5 her. She testified to you that when she first saw him with

6 Ismet and with Hasan, that she saw that he was coming along

7 behind Ismet, he was beating Ismet and that Ismet was bloody.

8 She told you that when she first saw the accused he was some 20

9 metres away from her, and that when he finally came to a stop in

10 this area where we have the circle that is straight across from

11 the white portion of the house across the road, that the accused

12 was about 10 metres away from her at that point.

13 With her that day was her sister Subha Mujic who also

14 testified here. She was outside that day. She also saw the

15 accused coming down the road with Ismet and with Hasan. Both

16 Draguna Jaskic and her sister had known the accused in passing

17 for many years, and both told you that they recognised him.

18 There was shooting, very loud and direct shooting, and

19 that shooting brought out Zemka Sahbaz who was another refugee

20 who had originally come from Jaskici and then when she married

21 moved away. She was now back in Jaskici because it was no

22 longer safe for her to be in her home. On that date she was in

23 the home of Ahmet Jaskic, the house that was directly across the

24 street from the home of Salko Jaskic and Draguna Jaskic. She

25 told you that on that date, hearing this loud gunfire, this din

26 and then very loud fire, very close, she came out of her yard to

27 see what caused that and she saw the accused, the man she later

28 identified as the accused, and another soldier bringing Ismet

Page 8559

1 and Hasan down the road. You will recall that she told you that

2 she basically saw them when they were near this shrub that is

3 marked here at the very end of the line of hedges there. That

4 is when she saw them.

5 When she first saw the accused she told you that he

6 was looking toward Draguna Jaskic's house.

7 JUDGE STEPHEN: That is the house from which the photograph is

8 taken?

9 MISS HOLLIS: Yes, your Honour, it is. She said that she saw the men

10 and the women out in the yard at Draguna Jaskic's house, and

11 that the accused was looking in that direction. She went on to

12 tell you that at some point then the accused noticed her and

13 turned toward her and ordered her back into Ahmet's house,

14 telling her to bring out the other people that were in that

15 house. She then went back, as she was ordered, into Ahmet's

16 house.

17 At this time Draguna and the others also went back

18 into Draguna's house, that is Draguna and the other women and

19 children. As they entered the house Draguna and her sister,

20 Subha, saw the men from her house taken to the road and beaten

21 when they got there. So as they were going into the house they

22 were able to see the men led out to the street and they were

23 able to see them being beaten as they were led out to the

24 street.

25 Then they entered the house. They had been ordered to

26 lie on the floor in the house, but Draguna and her sister could

27 not do so because of what they feared was happening to their

28 husbands, their relatives. So instead of going in and lying

Page 8560

1 down on the floor, they went into the room. If you will look at

2 the overhead we have the picture looking out the window of the

3 view they would have had that day. They went into a room and

4 instead of lying down, they went to the window and they looked

5 for a time to see what was happening. When they were in that

6 room looking out the window, what they saw was the accused about

7 12 metres away beating the men who were lying on the road.

8 Subha Mujic told you that when Draguna saw what was happening

9 there she said: "Look how Dule is beating our family." Her

10 sister Subha who was also seeing this replied: "Yes."

11 They also saw water thrown on the men when they passed

12 out, water taken from Draguna's well. They saw their father

13 tried to rise and the accused strike him down again, then

14 Draguna's son made her lay back down on the floor.

15 At this time the other Serbs who had split off and

16 gone to the bodies of Abaz and Nijaz continued their way to

17 Senija Elkasovic's house and there they came into the house and

18 they ordered the men of the house out of the house.

19 At this time we suggest to you that what the evidence

20 shows is that the accused then moved from his position on the

21 road to the next house over, that was Senija Elkasovic's house,

22 to stand there and supervise as the men from that house were

23 brought out. Senija Elkasovic looked out the window as the men

24 from her house were taken out, and she saw the accused there in

25 her yard in the place that is marked on this photograph, this

26 demonstrative aid. Again this is a demonstrative aid, we are

27 marking this from the transcript. It is not an exhibit which

28 the witness marked. She saw the accused standing in this area

Page 8561

1 and she saw him there looking toward her house waiting for the

2 men to come out. She recognised the accused. She saw the men

3 from her house come out and pass. It appears from her testimony

4 that when they passed they passed through what would have been

5 the left side of the accused as you see him there. He comes

6 out, they pass to the left and then the accused, we suggest,

7 then followed them back. What Senija Elkasovic told you was as

8 she saw them pass she then was ordered by a soldier in her house

9 to lie down on the floor. She just got this one look as she saw

10 the men coming out and walking past the accused.

11 The accused at this time went back to the men who were

12 lying on the road between the houses of Draguna and Ahmed Jaskic

13 and stood on the side of the road nearest Ahmet's house. At

14 this time Zemka and the others came out of Ahmet's house. She

15 told you that she came out first. They came out in a line, she

16 was in front, and when she came out for the entire time she was

17 out there she watched the accused. She told you she watched him

18 because he appeared to be the one who was in charge there giving

19 the orders. She indicated to you that she saw the accused nod

20 to another soldier, a blond soldier, and then that soldier began

21 to beat the men lying on the road, village men and refugees

22 whose names she did not know.

23 Then she and the others were ordered back into the

24 house, and ordered to go back into the house one at a time. As

25 she went in with her young son Jasmin, he was called out by the

26 accused. He was called to "come here". As her son went toward

27 the accused she followed him as she got near to the gate, and at

28 that time the accused came and she said he kicked on the fence

Page 8562

1 and said to her, "Bula, you have come to recognise someone?" At

2 that point in time her daughters came and took her back into the

3 house.

4 After the men were taken from Senija's house and she

5 and her family were lying on the floor at some point Senija told

6 you she heard, "Don't raise your head", then shots. Her mother

7 got up and looked out the window and said: "They are killing

8 them." We suggest to you that the evidence proves it was at

9 this time that the bodies seen on the road near Sead Elkasovic's

10 house, it was at this time that these men were killed.

11 When the mother stood up and looked out the window and

12 said, "They are killing them", the Serb soldier who was in the

13 house with them forced her mother to get back down on to the

14 floor. After a time Senija looked outside her house and saw the

15 men being taken away down the road in the direction of Kozarac.

16 At Draguna's house, Draguna and Subha also got up once again,

17 and when they got up they saw the accused beating Jasmin and

18 taking the men down from the village down the road in the

19 direction of Kozarac. When all was quiet the women went and

20 found the five dead bodies they identified for you on Exhibit

21 285. The women also identified for you 14 men who were taken

22 away that day, husbands, fathers, brothers, relatives, sons.

23 These men have never been heard from again, except for the one

24 man, Salih Softic, who was seen at Trnopolje camp.

25 After this occasion there were only three elderly men

26 left in that village, the others were dead or missing. Some

27 left the hamlet immediately that day to Trnopolje. Sena Jaskic

28 told you she went to a place called Kararici where later she was

Page 8563

1 forced to leave. Soldiers came and forced her to go to

2 Trnopolje, to the camp there. Others such as Senija Elkasovic

3 remained in the hamlet for a time, but were eventually also

4 forced to leave. Senija told you that they were also forced to

5 go to Trnopolje camp, to get permission to bury the dead men and

6 that eventually they got that permission and they took them to

7 Sivci and they buried them in a common grave in Sivci.

8 After the men were killed or taken away, Senija

9 Elkasovic told you that in the following days Serbs came to the

10 village and took away everything, saying such things as "This is

11 our place, not your's. You are going to Turkey. You are

12 leaving anyway. You won't need this tractor, this car". Serbs

13 from all over came and took away the possessions of the families

14 whose home had been Jaskici until there were no more inhabitants

15 left there.

16 Five witnesses told you about the crimes this accused

17 committed in Sivci and Jaskici on 14th June 1992. They all saw

18 them clearly and from nearby. Four of the five knew him from

19 before and Zemka Sahbaz picked him out of a photo lineup.

20 There has been some emphasis and certainly some

21 questions in cross-examination in this trial concerning the

22 showing of a photographic lineup book to Draguna Jaskic, the

23 woman who was so frightened for her family that you recall up

24 until the last minute she was going to be given protective

25 measures.

26 The Prosecution brought out the facts surrounding that

27 lineup and her reaction. Dr. Wagenaar in his testimony told

28 you, "Well, a reaction like that, we do not know what it is. It

Page 8564

1 should not be called an identification. It should be brought to

2 the court's attention". That is what was done. It was also

3 brought to the Defence's attention. They had that information

4 before the witness testified.

5 What do we make of the information concerning Draguna

6 Jaskic's viewing of the photospread identification? You will

7 recall that when she was shown that book, at the end of it she

8 was asked if she recognised anyone in that book and she said

9 "No". She did not equivocate. She said "No".

10 You will recall also that while she was viewing the

11 book, contrary to her later "no", when she came upon the

12 photograph of the accused there was an immediate intense

13 reaction. I suggest it was a reaction that all of us equate to

14 a reaction of recognition. What was the reaction? The reaction

15 was an immediate, drastic reaction. The eyes widened. She

16 moved back and forth. There was an expulsion of breath. All of

17 that is consistent with what, in our human experience? It is

18 consistent with a person seeing something that evokes an

19 anxiety, a fearful response.

20 Why would this witness see the accused and have a such

21 a frightened response evoked? Because it was the accused who,

22 in effect, ended her life as she knew it on 14th June in the

23 hamlet of Jaskici. That is not a reaction that lacks

24 understanding.

25 Dr. Wagenaar told you that the first reaction, the

26 first indication, to be recognition or not recognition, that is

27 what is decisive. That is that happened here. It was not a

28 verbal response, but it was a human, physical reaction we are

Page 8565

1 all familiar with, and that reaction said, "That is the man that

2 I am afraid of. That is the man that I have reason to fear".

3 That was a recognition.

4 You have the evidence before you. You have the

5 explanation. You must evaluate that. But we suggest to you

6 that when you evaluate it, you will determine that, in fact,

7 this was a fearful reaction to a man she recognised as the man

8 who committed the crimes in Jaskici on 14th June 1992.

9 Zemka Sahbaz was shown a photo lineup and she also

10 picked the accused. In her testimony, like the others who had

11 been shown photo lineups, she was asked whether she watched

12 television, whether she had media exposure. She told you in the

13 country she was she did not have a satellite dish. That country

14 did not really carry those programmes. She told you, "My

15 husband was in three camps. We do not watch television. We do

16 not watch violence. If I want to watch something, it is not

17 violence. I do not want to be reminded of what happened

18 there".

19 Some people may be sceptical of that response, but

20 again, based on your knowledge of human nature, it is a human

21 response to a catastrophe that has changed their lives, changed

22 their lives irrevocably. That is an understandable

23 explanation. That is a credible explanation.

24 There is no direct evidence in this case that the

25 accused shot and killed the men who were murdered in Jaskici on

26 that date, but he is, nonetheless, guilty of those murders. He

27 was acting in concert with these others on that date. He was

28 participating in this rounding up of the Muslims in that

Page 8566

1 village. This was a single transaction. Parts of it were

2 killing them, parts of them were beating them, parts of it were

3 taking them away.

4 There is no evidence at all to indicate any type of

5 affirmative or decisive removal of himself from this ongoing

6 activity so as to alleviate him of responsibility for those

7 deaths. He is guilty of the murders as well as of the beatings

8 that occurred there in that hamlet on that day.

9 There has been some discussion before we began this

10 trial about the issue of intent when it comes to wilful killing

11 or murder. We suggest to you that in these counts, as well in

12 the other counts alleging murder, the issue of intent that was

13 raised before the trial began is not an issue here, because that

14 issue was if the evidence were to show a person had the intent

15 to commit serious bodily harm, and the facts show that the

16 victim died, would that intent to cause serious bodily harm of

17 itself be sufficient to sustain a murder conviction?

18 These facts that you have before you in each one of

19 these scenarios where the accused participated in murders, the

20 intent shows, the intent to kill, either a premeditated intent

21 or the intent to kill that can be inferred from the fact that we

22 assume a person intends the natural and probable consequences of

23 their act. So the issue concerning intent only to do serious

24 bodily harm, we suggest, is not raised by this evidence.

25 THE PRESIDING JUDGE: Are you saying then that the accused must have

26 had a homicidal intent, which is the position of the Defence? I

27 do not think that is what you are saying.

28 MISS HOLLIS: I am saying I do not think the issue arises under these

Page 8567

1 facts.

2 THE PRESIDING JUDGE: Are you saying then -- why?

3 MISS HOLLIS: Because I believe that, looking at the evidence before

4 you, the only reasonable conclusion to draw from that evidence

5 is that either, No. 1, there was a premeditated intent, if you

6 will, or No. 2, that there is intent under what some

7 jurisdictions would call second degree murder or unpremeditated

8 murder, in that the acts that occurred that day were acts of

9 which the natural and probable consequence was the death of the

10 victims, so that the intent to kill can be inferred from that.

11 There is no indication at all that the only thing that could

12 possibly have happened here was serious injury to these victims,

13 not in the light of all circumstances that we know.

14 THE PRESIDING JUDGE: So the intent then, you would say, that you

15 have shown is an intent to commit more than a serious injury?

16 MISS HOLLIS: We believe the facts show that.

17 THE PRESIDING JUDGE: We will stand in recess for lunch until 2.30.

18 I was wondering whether you were completed, but you will

19 complete when we return.

20 (1.00 p.m.)

21 (Luncheon Adjournment)








Page 8568

1 2.30 p.m.


3 MISS HOLLIS: Thank you, your Honour.

4 THE PRESIDING JUDGE: I can hear you without seeing you. Go ahead.

5 MISS HOLLIS: Your Honour, the evidence the Prosecution has presented

6 to you in this case meets the burden of proof required. The

7 Defence evidence does not introduce reasonable doubt. The

8 accused testified in these proceedings. His testimony is not

9 credible. He, of course, has the most obvious reason to be

10 untruthful and he has been. Of course, he had full knowledge of

11 what the Prosecution and Defence witnesses had said when he

12 testified. He could match his testimony to the story he thought

13 best suited his needs.

14 The Defence also called the accused's wife, his

15 brother, his sister-in-law and a witness who is the accused's

16 wife's cousin. Those relationships of themselves do not mean

17 the witnesses are unbelievable, but the relationships must be

18 considered in evaluating credibility.

19 I have discussed the relative significance of the work

20 schedules, the police work schedules, both the degree to which

21 they can be relied upon as accurate and the relative likelihood

22 that, even if accurate, they disclose the accused's whereabouts

23 or actual duties at any particular time. Even if the accused

24 worked for an organisation which maintained records of

25 unimpeachable accuracy (which is not true), or even if he had

26 worked for an organisation which was not itself an integral part

27 of the ethnic cleansing of Prijedor, rather than the opposite,

28 these records would have little impact on this case because the

Page 8569

1 times listed simply do not preclude his commission of the crimes

2 in this case. He may have had a job but his work with the

3 police did not prevent him from committing these crimes.

4 The accused has, however, presented to you an

5 additional argument. He has painted himself as the type of

6 person who would never become involved in inter-ethnic

7 conflict. At page 6062 of the transcript the accused includes

8 himself in "We, simple, ordinary people did not know much about

9 things at that time". He has attempted to convince the Court

10 that he was a simple, ordinary man, a common man without any

11 interest or involvement in politics, someone who did not even

12 know, according to his testimony, whether the Serbian

13 authorities in opstina Prijedor intended the creation of

14 Republika Srpska. In short, the accused has painted himself as

15 the last person to be involved in crimes such as the ones

16 charged. His attempt to paint himself in this manner in the

17 face of compelling evidence to the contrary reveals to you both

18 his willingness to lie to this Court and his awareness of the

19 implications of that evidence.

20 Was the accused, indeed, a simple, ordinary person

21 with no involvement in national politics? To answer that, you

22 need look no further than the work report, the report he

23 prepared about his work on behalf of the SDS. That answers that

24 question. The man who did not know whether the SDS was

25 interested in the creation of Republika Srpska emphasised to

26 those same authorities in his report his credentials as "an

27 earnest SDS member and enthusiastic supporter of the idea of

28 creating Republika Srpska".

Page 8570

1 In the report he complained about his treatment by

2 Prijedor authorities, "After all I had done since 1990, only

3 wishing to contribute to the creation of our common country even

4 when it implied risking my life and my family's safety". His

5 activities to achieve that goal included joining forces with

6 fellow SDS activist, Milos Radulovic, and trying to organise

7 assignments to be implemented which, as arranged, were to come

8 into effect should fighting start, trying to persuade Serbs not

9 to serve on sentry post duties with non-Serbs; repeatedly

10 attempting to obtain information about the number and nature of

11 weapons that may exist in the Kozarac reserve police; working

12 with Vaso Radonjic, the secretary, and resignation of the shoe

13 factory, in trying to get weapons which were stored at the

14 Prijedor barracks. This is not even a simple ordinary SDS

15 member, much less a simple, ordinary, uninvolved, common man.

16 In his efforts to falsely depict himself as a simple

17 man uninvolved in SDS activities, the accused has attempted to

18 falsely characterise the plebiscite. He told this Court that

19 the plebiscite was not conducted at the behest of the Serbian

20 authorities, but on behalf of the entire opstina at the behest

21 of the local Municipal Assembly, despite the fact the document

22 which appointed him is stamped on it by the SDS and is

23 headed "Plebiscite of Serb people".

24 He also said this despite the fact that the plebiscite

25 ballot (which is Exhibit 97) shows that it was conducted by

26 the "Assembly of the Serbian people". He says this, despite the

27 fact that he boasts in his work report of having

28 been "entrusted" with the task of conducting the plebiscite by

Page 8571

1 the main board of the SDS.

2 Of course, Judge Stephen, you are correct when you say

3 that the accused's responsibilities were local. It is also

4 true, however, that the plebiscite was extremely important to

5 the Serb leadership because it was this plebiscite that served

6 as the basis for the declaration of a Serbian Republic of Bosnia

7 and Herzegovina, and responsibility for conducting the

8 plebiscite, as you heard from witness P, was greater in a

9 predominantly non-Serb area such as Kozarac.

10 More to the point, the significance of the plebiscite

11 can be gauged by the accused's false characterisation of its

12 nature and source. We can also appreciate its significance to

13 the Serbs by noting that the accused is able to denounce Serbs

14 in his work report for failing to vote in that plebiscite.

15 Such efforts at masking the accused's true character

16 and activities are not limited to the accused himself. Mira

17 Tadic and Ljubo Tadic were, of course, well aware of the

18 accused's views and activism, but they also painted him as a

19 completely uninterested man who had no interest in politics or

20 nationalism.

21 In considering their testimony, however, we ask you to

22 remember that Mira Tadic was an SDS member who, with her

23 husband, organised that plebiscite. We also ask you to remember

24 that Ljubo Tadic was an SDS member who railed against the jihad,

25 the holy war, that Muslims had allegedly launched against all

26 Christians, not just orthodox, and which supposedly justified

27 the destruction of Kozarac.

28 The blatant attempt of all three to match their

Page 8572

1 stories to provide the accused a defence is seen in areas other

2 than in support of his alleged political non-involvement. For

3 example, regarding his mobilization. In his record of

4 interview, the accused described his mobilization as follows,

5 that he was in Banja Luka on 15th June and he discusses in

6 detail the people he saw and was with on that date. He tells

7 you that on 16th June he travelled to Prijedor with his brother

8 Ljubo. He saw police officials and was accepted into the

9 traffic police. He was told he was free to leave and did not

10 report for duty that day. As he was leaving, he was given his

11 military book in which that day, June 16th 1992, had been

12 recorded. He and Ljubo spent some time at a cafe called Aero Club

13 with an acquaintance ----

14 JUDGE STEPHEN: Is this his evidence or ----

15 MISS HOLLIS: This is from his oral.

16 JUDGE STEPHEN: --- a prior statement?

17 MISS HOLLIS: This is from his ICTY record of interview. He tells

18 you that he and Ljubo spent time at this club, this cafe, Aero

19 Club, and that Ljubo left about 1 o'clock. He then went on to

20 name the people he saw during the rest of the day. He told you

21 that he spent that night in the home of Radovan and Dusanka

22 Vokic. In that oral lie, he tells you that the next day, the

23 17th, he went to the police station in the morning with Vokic

24 and he was on duty at Orlovci for the first time that day, the

25 17th. After he finished at the checkpoint, he indicated that he

26 went to Pecani; discusses who he was with and again indicated

27 that he spent the night at the home of Radovan Vokic.

28 In that oral lie, he said that the next day, the 18th,

Page 8573

1 he stayed around Prijedor and he names the people he was

2 allegedly with. Mira Tadic was not one of the people he

3 included as seeing or being with that day. The accused

4 described these events as related both in May and then again in

5 December in those records of interview. He related the events

6 in great detail and volunteered that he remembered very well the

7 dates and events.

8 But then at this trial Mira Tadic came to testify and

9 her version was quite different. According to her, the accused

10 left Banja Luka for Prijedor by himself, not with Ljubo, on 15th

11 June. He came back to Banja Luka the next evening wearing a

12 police uniform. He spent the night in Banja Luka, not in

13 Prijedor at the Vokic home as he said in his record of

14 interview. She testified that the two of them went to Prijedor

15 together the next day, the 17th, and that night they spent at

16 the home of Martin and Mileva Dzaja, not in the Vokic home alone

17 as the accused indicated in his record of interview. She

18 testified she left some time the next day for Banja Luka.

19 Then when the accused testified, having of course

20 heard his wife's testimony, he changed from his story in the

21 oral lie and he told you his wife's story. Now it was his

22 version that he left Banja Luka on Monday 15th by himself; that

23 he talked with police officials on that day; that his first day

24 at Orlovci was 16th; that he returned to Banja Luka to fetch

25 Mira and spent the night with her at the home of Martin and

26 Mileva Dzaja on the second night of his duty which would be the

27 17th. In short, having heard her testimony he gave the same

28 story.

Page 8574

1 When asked on cross-examination about this revision,

2 the accused accused Mr. Reid, saying that Mr. Reid had insisted

3 on the dates. But when asked if Mr. Reid had also insisted that

4 the accused tell him on more than one occasion "I remember very

5 well", the accused said maybe he did not insist that much. In

6 fact, it was the accused in these interviews who insisted to

7 Mr. Reid that Mr. Reid provide dates for allegations. Then it

8 was the accused who responded with specific information about

9 his alleged whereabouts on those dates.

10 Now, when this excuse failed, instead of blaming

11 Mr. Reid, the accused tried to excuse the change in his version

12 by saying that he knew that there would ultimately be documents

13 with the exact dates. Again this excuse was false.

14 In fact, the accused had with him in December

15 documents which listed the exact dates. When pressed about

16 this, the accused admitted it, but said, "I just skimmed it and

17 did not pay much attention to the details". Again this was

18 another example of the accused's dissembling.

19 In fact, he did use those documents in formulating his

20 answers. No example could be clearer than this. He stated to

21 Mr. Reid that he was not on duty on July 20th 1992 and was in

22 the centre of town. At that time his lawyer pointed out the

23 document with the dates on it to Mr. Tadic and showed it to

24 Mr. Reid. The accused then stated that on 20th July he was on

25 duty in Orlovci from 7.00 a.m. to 7.00 p.m.. The cites of the

26 references that I have just made, your Honours, is in the

27 December record of interview, pages 41 and 42.

28 These were lies to cover an earlier lie to cover an

Page 8575

1 even earlier lie and, ultimately, to cover the biggest lie of

2 all, that the accused was not involved in these events in

3 opstina Prijedor as charged in the indictment.

4 As I indicated, this attempt to conform their stories

5 appears throughout the testimony of the Tadic's, from the

6 characterisation of his attitudes and political involvement to

7 the stories of his alleged whereabouts to the unbelievable story

8 of the certificate issuing him his automatic rifle and

9 ammunition, a certificate he first denied having any knowledge

10 of, although it was presented to him by German authorities, then

11 later attributed to a man in Prijedor. Then, when his brother

12 attempted to cover for it, by claiming that he, Ljubo, had given

13 it to the accused, the accused asserted that it was one of two

14 documents that had been issued. Even in this, however, he and

15 his brother were widely off as to the dates when his brother

16 Ljubo supposedly provided this information to him.

17 When you examine the alleged information provided by

18 Mira and Ljubo Tadic, you must remember it is all a piece with

19 the accused by family members determined to bolster each other's

20 accounts. Are these insignificant details inconsistencies that

21 can be attributed to the effect of the passage of time, to

22 different ways of remembering, or are these deliberate lies told

23 to protect this accused from criminal liabilities for his crimes

24 during 1992? Your examination of the evidence and the

25 reasonable inferences to be drawn from that evidence, we

26 suggest, will show you that these were deliberate lies.

27 When you evaluate all the evidence in this case, you

28 will conclude that the credible evidence in the case proves the

Page 8576

1 accused was an integral part of the crimes that were committed

2 against non-Serbs in opstina Prijedor from May 1992 until

3 December 1992. He was there in Kozarac at the beginning of the

4 military attack on that town, helping to ensure that the

5 shelling would hit designated targets. He was there when the

6 town surrendered as part of the Serb forces rounding up the

7 non-Serbs and forcibly expelling them from the town.

8 He took part in calling out Muslim policemen and other

9 Muslim men and killing them on 26th and 27th. He took part in

10 separating out the men to be sent to various camps. He took

11 part in the cleansing of villages around Kozarac, Sivci and the

12 hamlet of Jaskici. He committed numerous offences in Keraterm

13 and Omarska. He was frequently in these camps whose only

14 purpose for existence was to beat, to torture, to kill, to

15 terrorize non-Serbs. Most frequently, he was seen in the death

16 camp at Omarska. His presence there is also proof of his

17 continuing involvement in the ongoing persecution of non-Serbs.

18 As he was there at the beginning of it all at the

19 attack in Kozarac, so too was he there at the camp that was the

20 end of it all for many non-Serbs. Trnopolje was the forced

21 deportation centre for non-Serbs. His recurring presence there

22 is further proof of his participation in, of his aiding and

23 abetting of, of his encouragement and support of the persecution

24 that occurred in opstina Prijedor in 1992.

25 The Prosecution has met its burden in this case and in

26 some instances, such as proof of widespread or systematic

27 attack, has even gone beyond its burden in this case. Justice

28 will be served in this case by finding the accused guilty as

Page 8577

1 charged.

2 Thank you, your Honour.

3 THE PRESIDING JUDGE: Thank you. You may be seated, Miss Hollis.

4 Who will go forward with the Defence? I think you are pointing

5 to whom, Mr. Wladimiroff? I think they are finished. I was

6 trying to ask the interpreter whether they want a break, but

7 I think they have told me to go forward. You may begin.

8 MR. WLADIMIROFF: Thank you, your Honour. Your Honours, all

9 members of the Defence will argue portions of our closing

10 argument. As an introduction, I will submit to you some general

11 observations about the case, and by doing so I hope to pave the

12 road for the heart of the matter, the evidence in this case. It

13 is Mr. Kay who will analyse the Prosecution evidence and Miss

14 de Bertodano who will put forward the Defence case. Our

15 arguments or evidence will be followed up by legal matters.

16 Mr. Orie will discuss the character of the conflict with regard

17 to the counts under Article 2 of the Statute. I will finally

18 deal with the indictment, the scope of some crimes and the

19 criminal responsibility and submit to you our overall

20 conclusions.

21 Now let me for my opening return in time to the first

22 day of the trial. In their opening statements, your Honours, on

23 May 7th, the Prosecution full of confidence stated that they had

24 built up a very strong case against Dusko Tadic. Mr. Niemann,

25 as Miss Hollis has done yesterday and today, gave a description

26 of Tadic's conduct in 1992. It is a story of a man who, like a

27 fanatic, is involved in all kinds of atrocities one after the

28 other. What I noticed in May was the unrealistic picture that

Page 8578

1 was given of Tadic, and that feeling did not change when

2 Prosecution witnesses gave evidence. Miss Hollis confirmed this

3 picture again yesterday and today. I wonder where that picture

4 originated from. Is it the stereotypical bloodthirsty Serb as

5 pictured so many times in war-crime stories by the other parties

6 in the Bosnian conflict? I also wonder why this picture is so

7 easily adopted by the Prosecution.

8 We suggest, your Honours, that this picture has not

9 been obtained from thorough and independent investigation on

10 location. Apart from some sporadic visits to the locations

11 where the camps used to be, the Prosecution did not carry out

12 any investigation in the region itself. That was, apparently,

13 not possible in 1994 and 1995. It was not until 1996 that the

14 Prosecution was able to develop a number of general activities

15 in the region. I still recall their complaints that in this

16 respect they were in an even worse position than the Defence.

17 So the Prosecution did not talk to any witness on the

18 spot. They did not talk to people who were involved in the

19 attack on Kozarac. They did not talk to people who were

20 involved in the ethnic cleansing in the region. They did not

21 speak with people who were involved in setting up and running

22 the camps. In other words, the Prosecution did not hear any

23 person who now lives in the region and who can tell what

24 happened in 1992, not a single person.

25 Who are the people then to whom the Prosecution

26 talked, apart from the policy witnesses? What could be the

27 force of the Prosecution's case against Dusko Tadic? The source

28 has become very clear. It is exclusively the people who

Page 8579

1 suffered as victims in the conflict between the ethnic groups in

2 Bosnia.

3 Exclusively? No, not quite, because apart from all

4 Bosniacs, there was only one Serb who served as a source for the

5 Prosecution's allegations. I will talk about this man

6 separately at a later stage.

7 So again, the Prosecution based their case against

8 Dusko Tadic -- a member of one group involved in the Bosnian

9 conflict -- on sources that originated more or less exclusively

10 from the other party to the conflict. Listening to Mr. Niemann

11 in May and to Miss Hollis yesterday and today, I do not get the

12 impression that the Prosecution has given any thought to the

13 consequences of this one-sided basis of their investigation and

14 prosecution. For instance, I have not heard any indication that

15 their own witnesses were tested with regard to their

16 truthfulness. I have heard no indication whatsoever that the

17 Prosecution carried out any investigation into the possibility

18 that Dusko Tadic is not guilty of the charges in the

19 indictment.

20 On the contrary, the choice of witnesses that were

21 eventually called to testify indicates that the Prosecution had

22 only one thing in mind, that these witnesses alone were capable

23 of telling the truth.

24 But what about documentary evidence then? Nothing!

25 Not a single investigation was carried out into written items of

26 evidence that could shed some light on the accusations. The

27 Prosecution only had at their disposal the documents that were

28 seized in the Tadic's house in Munich. But these documents have

Page 8580

1 no relevance to the question of guilt, which is the key issue in

2 this procedure.

3 So, there was not a full investigation to find out the

4 most important matter in a criminal case, namely, the truth.

5 Only the "other party" was heard and subsequently called. What

6 is more, the Prosecution accepted that on this one-sided and

7 shaky basis they could take a decision about the prosecution of

8 Tadic. On this basis solely they have presented their case, and

9 this is the basis of their assessment today that Dusko Tadic is

10 guilty of all charges.

11 One could, of course, argue that the Prosecution did

12 not have the possibility to gather other probative material in

13 addition to the evidence provided by witnesses, because again in

14 1994 and in 1995 they were unable to get into the region. In

15 1996, the local authorities were not cooperative, were they? We

16 heard, indeed, today again about Simo Drljaca.

17 That is correct, yes, but the conclusion does not

18 alter: the Prosecution solely based its case on witnesses of

19 the "other" party who were, indeed, available and they accepted

20 this without sufficient backing up with documents as a

21 sufficient basis for far-reaching conclusions about Tadic's

22 guilt with respect to very serious crimes.

23 Such a prosecution that is one-sided and incomplete is

24 doomed to failure if this Court takes its task seriously, as we

25 are confident it does. Because, let us be honest about it,

26 matters like the one in issue are easy to solve. If you simply

27 decide, as the Prosecution has, to believe the Prosecution

28 witnesses, you can sentence Dusko Tadic for just about

Page 8581

1 anything. The moment that one is mentally convinced that he did

2 it and simply is looking for evidence that substantiates this,

3 then it might technically not be difficult to convict Tadic, but

4 we are confident you will not.

5 Let us face it, did the testimony of witness L not

6 sound very convincing? Did his statement not fit neatly into

7 the Prosecution's picture? Was his statement not effectively

8 corroborated by the Prosecution with all sorts of exhibits? Was

9 this not the perfect final witness in the Prosecution's case?

10 Did his evidence not paint a picture of the perfect

11 stereotypical war criminal of whom we have all read?

12 The Prosecution must have been firmly convinced by

13 witness L with his stories of horrific, ethnically motivated

14 crimes, otherwise they would not have called him to testify and

15 would certainly not have saved him up to be the "final member of

16 the show".

17 That is the picture, your Honours. The Prosecution

18 believed all its witnesses without query. That is what the

19 Prosecution's case is: no clear investigation, but the

20 gathering of accusations of members of the other ethnic group in

21 the conflict.

22 Does this mean that the Defence considers this other

23 ethnic group -- in this case non-Serbs -- to be unworthy of

24 belief or unreliable? No, that is certainly not the case. The

25 fact that a witness comes from one or other ethnic group is as

26 such no indication of their reliability. It is the specific

27 circumstances of a group of people who have become victims of

28 this terrible war which causes questions to be raised as the

Page 8582

1 reliability as witnesses in a case where a member of the

2 victorious group, their oppressors, is on trial. We have seen

3 in the Demjanjuk case to what unjust and dramatic consequences

4 this can lead.

5 In my opening statement, I pointed out to you that

6 there are witnesses who have adopted the accounts of their

7 fellow prisoners or of friends or relatives. When inmates of

8 the camps were released or moved to other locations, they talked

9 to each other and their families and friends about their

10 experiences. I also pointed out that we do not require the

11 assistance of a psychologist to convince us of the importance

12 and the power of suggestion. It is something you come across in

13 everyday life. If several people witness the same event, they

14 do not all recall every detail, but when they discuss events

15 together afterwards, a composite story emerges. Rumour becomes

16 truth.

17 People convince themselves with ease that they have

18 seen and heard things which they did not and could not have seen

19 and heard. Having heard the evidence, we have good reason to

20 believe that many people were told, either at the time or

21 afterwards, that Tadic had been committing crimes in the camps.

22 We have heard evidence about the impact of the Monika Gras

23 film. People who have come across these rumours have fitted

24 second-hand accounts into their own accounts to fill gaps or

25 identify a person whom they did not, in fact, see at all.

26 Meanwhile, we have heard the testimonies of the

27 Prosecution witnesses and the fears I expressed in my opening

28 statement have been realised. The witnesses you have heard

Page 8583

1 giving evidence against Tadic have told stories, if not by

2 hearsay, as a result either of an honest but distorted and false

3 belief, or of prejudice against the Serb Dusko Tadic.

4 In one case, the facts were proven to be even worse.

5 witness L's false testimony was deliberately fabricated by

6 the Bosnian authorities with no other objective than to secure

7 the conviction of the Serb Dusko Tadic. When witness L

8 finally confessed that he had lied, it became clear that

9 information and video material exists which enables a

10 non-witness to testify as though he had been there. His initial

11 evidence was convincing to the extent that the Prosecution

12 believed it without query.

13 Witness L confessed that he had been set up by the

14 Bosnian authorities after he was captured as a member of the

15 Bosnian Serb Army. After being interviewed by the military and

16 police officers about his own behaviour, he was transferred to

17 (redacted). There at a security centre (that, as we now know

18 turned out to be the building of the secret service of the

19 Bosnian government) he was compelled to co-operate with the

20 Bosnian authorities in testifying against Dusko Tadic.

21 Witness L said that he was trained for a

22 substantial length of time. They showed him all kinds of

23 documents and maps, instructed him on the basis of the

24 statements of others and showed him video tapes of Trnopolje

25 camp and about Dusko Tadic. They instructed him to give

26 statements while he was watching the video tapes. At the

27 conclusion of the training, they gave him three prepared

28 statements to sign. These statements were handed over to the

Page 8584

1 Prosecution of the Tribunal. On the basis of this material,

2 witness L gave evidence in Court, in closed session, as the

3 anonymous Witness L.

4 Further, it has become clear that the Prosecution did

5 not in any way check whether witness L's statements were

6 correct. This is in spite of the fact that for more than a year

7 the man was at the Prosecution's disposal in the UN detention

8 unit here in The Hague. It was not until we discovered, by

9 coincidence, during our investigation on location information

10 which indicated that witness L was not telling the truth,

11 that the Prosecution reluctantly started to verify his

12 statements. However, the Prosecution continued to the end to

13 deny the results of the defence's investigation and to obstruct

14 the Defence's attempts to expose witness L as a liar.

15 Your Honours, experienced lawyers are always aware

16 that the essential characteristic of the criminal procedure is

17 that judges, prosecutors and defenders were not present at the

18 indicted incidents and that, consequently, to answer the

19 question as to whether a person is guilty they totally depend on

20 the probative material presented. It is because of this that

21 only the most reliable evidence is admissible to serve as a

22 basis for justified decisions.

23 So the issue in this case is the reliability of the

24 probative material. It is your court that will have to decide

25 whether or not probative material is reliable. There is no such

26 thing as "partially reliable". The reliability of probative

27 material is not a question of compromises. Probative material

28 is reliable or not.

Page 8585

1 For a proper International Criminal Tribunal, the

2 issue is not how to satisfy the victims of violations of

3 International Humanitarian Law, but to test whether the

4 Prosecution has discharged itself of its burden of proof of the

5 indictment.

6 Miss Hollis, dealing with paragraph 9, stated that a

7 reasonable inference could be made that the victim was alive at

8 the time of alleged inhumane treatment, thereby reducing the

9 standard of proof. We disagree. Beyond reasonable doubt

10 requires more; it requires you to be sure, to be certain, that

11 the evidence leaves no room for any doubt. A doubt raised not

12 being speculative but reasonable makes the Court less than

13 certain.

14 It is this standard that is the standard to apply to

15 the evidence adduced in support of the Defence alibi. We have

16 nothing to prove. I submit to you that our evidence is not

17 speculative but reasonable and sufficiently casts doubt upon a

18 significant number of the Prosecution's allegations.

19 Returning to the burden of proof of the Prosecution,

20 I would like to address briefly the standard of sufficiency of

21 proof. In the common law jurisdictions, uncorroborated evidence

22 of a single witness may be sufficient to believe that a charge

23 is proven beyond reasonable doubt. We have been discussing this

24 standard in the context of the Defence motion on dismissal. You

25 may remember that in civil law jurisdictions statutory

26 provisions or case law take a different position. Some kind of

27 independent causal corroboration is required there. These

28 jurisdictions refer to this requirement with the so-called unis

Page 8586

1 testis, nullius testis rule.

2 The Tribunal works under the Rules of Procedure and

3 Evidence, which rules are viewed to be a mixture of common law

4 and civil law elements. That does not address this topic of the

5 unis testis rule. The question therefore is ----

6 JUDGE STEPHEN: I wonder if you would translate the Latin? You

7 pronounce it in a continental fashion which is strange to me.

8 MR. WLADIMIROFF: I appreciate that, your Honour. It means one

9 witness makes no proof.

10 JUDGE STEPHEN: Thank you.

11 MR. WLADIMIROFF: As I said, the question now is raised whether the

12 common law approach of uncorroborated evidence is a part of the

13 international customary law. We submit that this is not the

14 case.

15 Under the circumstances of a trial with only witnesses

16 that are personally involved as being parties to the conflict,

17 it seems appropriate to the Defence not to accept the common law

18 approach of non-corroboration, but instead to accept the civil

19 law standard of sufficient corroboration.

20 This argument has more weight since this trial is not

21 a jury trial with a panel of 12 citizens, but a bench trial.

22 The sufficiency of probative material is not a

23 question of compromises. We submit that in a fair trial the

24 standard of sufficiency of available material should not be

25 manipulated to fit the need for a verdict. It is the duty of

26 this criminal court to the international community to meet fair

27 and settled standards of proof and not to develop ad hoc

28 standards to enable it to convict.

Page 8587

1 If the reliability of some probative material is

2 affected by other information, that material must be

3 disregarded. If there is any information that can affect the

4 reliability of probative material, the Judges will have to

5 convince themselves that it does not affect it, if they are to

6 use that material as a basis for reaching a decision. If the

7 Judges are unable to exclude the possibility that certain

8 probative material is not reliable, they should dismiss that

9 material from their minds. There must be no question of

10 allowing unreliable material to prejudice the defendant in any

11 way.

12 So what is the information that affects the reliability

13 of evidence? I already mentioned the most important factor in

14 this case, the risk of prejudice of the Prosecution witnesses as

15 members of the "other" ethnic group. This is the risk of

16 hearing witnesses who were the victims of the conflict in

17 Prijedor in which the Serbs were the aggressors and the victors;

18 a conflict in which many or all of them lost family members,

19 relatives and friends, as well as their homes and their

20 livelihoods; and a conflict in which most of them were

21 themselves imprisoned in camps.

22 Can you exclude the possibility that the witnesses

23 called by the Prosecution were prejudiced? I am afraid that you

24 cannot.

25 THE PRESIDING JUDGE: Excuse me, Mr. Wladimiroff, if we are to

26 consider that non-Serb witnesses, because of their ethnic

27 background, are biased, then should we not also apply that

28 standard to Serb witnesses?

Page 8588

1 MR. WLADIMIROFF: I will deal with that, your Honour. I am not

2 saying that being a member of the "other" ethnic group as such

3 is a sufficient criteria. It is the matter of being imprisoned

4 and attached by the conflict, having lost family members or

5 having lost your homes or having been driven out of the area.

6 That makes them a risk.

7 As I said, can you exclude, your Honours, the

8 possibility that the witnesses called by the Prosecution were

9 prejudiced? I am afraid you cannot.

10 Moreover, it is important to realise that many of the

11 them talked to each other about the traumas of 1992, not only in

12 the camps themselves, but also thereafter. What also played a

13 role is that many of them subsequently lived in the same region

14 after they had left former Yugoslavia. This was exacerbated by

15 the fact that soon after 1992 the media began to play its role

16 in relaying stories about what had happened in opstina Prijedor

17 all over the globe. It is an established fact that the events

18 of 1992 and, in particular, the alleged activities of Dusko

19 Tadic were discussed both publicly and among the witnesses who

20 have come to give evidence at his trial.

21 Against the background of the evidence given by

22 Mr. Reid showing that most -- it is about 45 per cent, if

23 I remember well -- of the Prosecution witnesses live in Germany,

24 Mr. Deichmann's testimony has made clear to what extent this

25 case was publicised in Germany since 1992. It is hard to resist

26 the conclusion that the extensive media coverage was simply

27 unavoidable for those witnesses at least.

28 I return to the basic principle concerning reliability

Page 8589

1 of evidence which I stated a few moments ago. Can one exclude

2 the possibility that these witnesses were affected by all the

3 publicity and by all those stories within their own circles?

4 I draw the Court's attention to, for example, the pictures as

5 shown by Mr. Deichmann during his evidence, Exhibit D102B. I am

6 afraid that no one can exclude this, and this leads to serious

7 questions as to whether the evidence of these witnesses can be

8 reliable. It is our submission that it cannot be, and is not.

9 Does this mean that the Defence contends that all the

10 Prosecution witnesses are lying? In witness L's case, this

11 was proved to be so certainly. In many other cases, we have

12 good reason to believe that witnesses were not telling the

13 truth, and that they adjusted their accounts of their

14 experiences to fit the Prosecution's case.

15 Time after time we have shown that witnesses had given

16 previous statements which were totally at variance with the

17 accounts they gave in Court. It may be that there were also

18 witnesses who were honest but mistaken and that their honest

19 mistakes led to the fabrication of others. The motivation to

20 call someone to account for the loss of a friend or members of a

21 family is great.

22 THE PRESIDING JUDGE: Excuse me, Mr. Wladimiroff, will you tell us

23 which witnesses you consider have given testimony at variance or

24 will Mr. Kay do that?

25 MR. WLADIMIROFF: Mr. Kay will do that.

26 THE PRESIDING JUDGE: He will be handling the Prosecution case, OK.

27 MR. WLADIMIROFF: The Prosecution, your Honours, has suggested that

28 inconsistencies of the witnesses might be caused by

Page 8590

1 interpretation problems. We do not believe so. The

2 professional interpreters have shown to be very capable. The

3 difficulties we have witnessed were of a very minor character

4 and did not affect the substance of the testimony. We have not

5 witnessed any relevant misinterpretation.

6 Interpreters may misinterpret a word, but it is highly

7 unlikely that they would insert a passage in a statement which

8 bears no relation to anything a witness said, as Elvir

9 Grozdanic, for example, alleges. Another example is the

10 Prosecution alleging that in incidents such as the chicken kiosk

11 incident where Sulejman Besic gave a statement which did not

12 mention the accused, there also is an interpretation problem.

13 It certainly is an interpretation problem; the interpretation

14 being where the witness is telling the truth or not. Anyhow, we

15 submit to the Court that there is not a proper showing of

16 relevant misinterpretations as alleged by the Prosecution.

17 As I already said, your Honours, all these details

18 will be discussed at length by Mr. Kay when he is dealing with

19 the evidence in detail. We will submit that these indications,

20 together with the probable contamination of the testimony, will

21 lead you to the conclusion that the evidence of the Prosecution

22 witnesses is insufficiently reliable to provide the basis for a

23 conviction.

24 More generally, I have already pointed out that,

25 against the background of Mr. Deichmann's testimony, it is

26 highly improbable that almost none of the Prosecution witnesses

27 watched television or saw newspapers during the past years. The

28 fact that the huge majority of them denied in evidence that they

Page 8591

1 had received any information from the media is an indication

2 that the witnesses feel that they need to boost their own

3 credibility.

4 With respect to the Defence witnesses, this was not

5 the case. Almost all Defence witnesses stated honestly that

6 they had seen reports about this case in the newspapers and on

7 television.

8 The impact of these unreliable statements of the

9 Prosecution witnesses about their knowledge of the media

10 coverage is even more significant where it concerns the four

11 witnesses who identified Tadic on the basis of the photospread.

12 For the differences between relevant identification and the

13 meaningless recognition, I refer to the testimony of Professor

14 Wagenaar.

15 The identification witnesses are Senad Muslimovic,

16 Zemka Sabhaz, Kasim Mesic and Sead Halvadzic and not, as

17 Miss Hollis submitted yesterday, Witness S -- Witness R.

18 Witness R admitted that he knew Dusko Tadic.

19 Then we also have Draguna Jaskic. What do we make out

20 of that? What do we make from her statement regarding this

21 witness and what do we make with her reactions to the

22 photospread or, should I say, her alleged reactions to the

23 photospread, because the only information we have about that is

24 her own statement about how she reacted, and we have additional

25 information about that from a witness who was an inexperienced

26 law enforcement officer. I say inexperienced because he had

27 never performed a photo test before.

28 We submit that the position of the Prosecution

Page 8592

1 regarding this witness is speculative when they say that her

2 reaction may be understood as a positive identification.

3 Professor Wagenaar made it clear that her reactions were

4 insufficient to accept this witness as a positive identification

5 witness.

6 With regard to the four others, the evidence given by

7 them as to their lack of knowledge of the image of Tadic was not

8 an impressive indicator of their reliability, not only because,

9 as was shown by the evidence given by Mr. Reid, the four tests

10 were made after the highly publicized start of the trial, just

11 before the person in question was about to testify before the

12 Court, but also because no strict, flowed procedures were used;

13 procedures that fundamentally breached the basic rules that

14 ought to apply to a photo identification if it is to be regarded

15 as reliable.

16 The Prosecution contends that the photo array was

17 approved by Professor Wagenaar. That is not exactly what

18 Professor Wagenaar wrote in his letter and what he told us in

19 evidence. I refer to Exhibit D90. Hence, that he made a

20 reservation as to the ethnic background of the foils. Mr. Reid

21 told us that nine out of 13 were from the former Yugoslavia, but

22 he did not tell us where from the former Yugoslavia. Were they

23 from Macedonia, from Slovenia, from Croatia, from Bosnia, from

24 Serbia, from Montenegro? We simply do not know.

25 The testimony of Professor Wagenaar shows that people

26 might think that ethnic differences are not relevant, but they

27 might be wrong about this simply because, so witness Professor

28 Wagenaar, they are not aware of their ability to recognise the

Page 8593

1 ethnic differences of foils of a photospread.

2 The Prosecution also contends that no gross

3 deficiencies have occurred. We disagree. Let us focus then on

4 these persons who say they identified Dusko Tadic:

5 Senad Muslimovic claims that he saw Tadic in the

6 context of paragraph 6 in the hangar of Omarska camp. This

7 witness left the area ----

8 THE PRESIDING JUDGE: Excuse me. May I just interrupt you? Are you

9 moving now away from the four who looked at the photospread or

10 are you continuing?

11 MR. WLADIMIROFF: I am talking about the four.

12 THE PRESIDING JUDGE: OK, excuse me.

13 MR. WLADIMIROFF: Senad Muslimovic is one of them, your Honour.

14 THE PRESIDING JUDGE: OK. Go ahead. Do not let me interrupt you.

15 MR. WLADIMIROFF: The witness left the area after the conflict and

16 lived in Slovenia, in Austria and elsewhere in Europe before he

17 emigrated to [redacted]. Where he now lives you will

18 find in evidence on page 6431 up to 6432.

19 He claims that he did not know Dusko Tadic before the

20 war. Despite all the publicity in the countries where he lived,

21 he denies having read about Tadic in newspapers or having seen

22 his picture on television. However, we know that he was fully

23 aware of the trial when he was shown the photospread. We have

24 that in evidence by the statement of Mr. Reid.

25 This witness was interviewed by Mr. Ackheim of the

26 Office of the Prosecutor on 26th March of this year. On 9th May

27 of this year, two days after the actual trial started with full

28 publicity around the world (and in this context, seeing the

Page 8594

1 place where the man lives, I specifically mention the daily

2 coverage by [redacted] Mr. Safer showed him the book of

3 photographs.

4 Mr. Safer may have had written instructions, that may

5 follow from the evidence of Mr. Reid, but these instructions

6 were not produced so we know nothing about it. A brief

7 description of these instructions is in evidence. I will come

8 back to that. As the witness was aware of the trial, Mr. Safer

9 varied the instructions. That is in evidence too. We do not

10 know how. Mr. Reid could not tell us. The notes, if any, of

11 Mr. Safer were not produced and no recording of times was made.

12 THE PRESIDING JUDGE: Excuse me, before you go on, Mr. Wladimiroff,

13 Mr. Muslimovic, is that the gentleman who was from [redacted]

14 [redacted]

15 MR. WLADIMIROFF: [redacted], your Honour, now you mention

16 it -- I tried to avoid it.

17 THE PRESIDING JUDGE: OK. The reason I was asking was that I wanted

18 to know about [redacted]. We have our 30 minutes that we

19 can work on. Go ahead.

20 MR. WLADIMIROFF: The next one, your Honour, is Zemka Sahbaz. She

21 claims that she saw Dusko Tadic in the context of paragraph 12

22 in Jaskici. This witness also left the area after the conflict

23 and lives now in a (redacted) country, which country you will

24 find on page 3018. The witness claims not to have known Tadic

25 before the war, and she totally denies reading newspapers at all

26 or watching television at all.

27 JUDGE STEPHEN: Can I interrupt you now? She comes from one of the

28 two villages?

Page 8595


2 JUDGE STEPHEN: Yes, thank you. It is your pronunciation.

3 MR. WLADIMIROFF: Yes, my pronunciation is always a problem, your

4 Honour. Sometimes I even do not understand myself! But,

5 nevertheless, I hope you were able to follow my argument.

6 This witness, your Honours, was interviewed by

7 Mr. Ackheim of the Office of the Prosecutor on 31st May of this

8 year. The book of photographs was shown to her by Mr. Ackheim

9 on the same day, after the trial had been broadcast worldwide on

10 a daily basis for about three weeks.

11 Also, in this case we only have a global description

12 from Mr. Reid of the way the photo test was generally applied.

13 We do not know how it was applied to this witness. The test was

14 not applied according to a protocol. No notes were made and

15 there was no recording of times.

16 The next witness here is Kasim Mesic. This witness

17 claims that he saw Dusko Tadic in the context of paragraph 4 in

18 Omarska. This witness left the area and his present residence

19 is kept secret from the Court and the Defence. The Prosecution

20 refused to release to the Defence in confidence the town and

21 country in which the witness lives.

22 According to the evidence of Mr. Reid, though, this

23 witness may live in [redacted]. Page 6411. The witness

24 claims that he did not know Tadic and he also denies having read

25 about Tadic in newspapers or having seen his picture on

26 television. After his interview by the Office of the Prosecutor

27 in January of this year, he was shown the book of photographs by

28 Mr. Ackheim during the trial on 12th June of this year.

Page 8596

1 Here too we only have a global description from

2 Mr. Reid of the way the photo test was generally applied. We do

3 know, however, some details of how it was applied to this

4 witness. I quote from the transcript, pages 6408 to 6409.

5 Question: "When he first handed you the book, what

6 did he tell you to do when he first handed you the book?"

7 Answer: "Well, whether I recognised here in the book who was

8 that Tadic whom I recognised". Question: "When he handed you

9 the book, did he tell you to look for the man Tadic? Is that

10 what he told you to do? Did he use that name?" Answer: "No.

11 No. No, only 'Do you recognise that picture and which you

12 thought was Tadic?' I do not remember exactly. No, he asked me

13 to recognise among, to try to identify him among all those men

14 who was the man". May I emphasise, your Honours, "which you

15 thought was Tadic".

16 We further know from the hearsay evidence or

17 second-hand information given by Mr. Reid, because he was not

18 present during the test, that the test was not applied according

19 to a protocol, no notes were made and there was not a recording

20 of times.

21 The last witness of these four is Sejad Halvadzic.

22 This witness claims that he has seen Dusko Tadic in the context

23 of paragraph 4 in the military barracks of Prijedor.

24 Also this witness left the area and his present

25 residence is also kept secret from the Court and the Defence, as

26 I outlined earlier. According to the statement of Mr. Reid, the

27 witness may live in [redacted]. Page 6411.

28 The witness claims that he did not know Tadic before

Page 8597

1 the war and again we heard the familiar story. He did not read

2 newspaper reports about Tadic. He did not see his picture on

3 television.

4 After interview by the OTP on 4th May last year, the

5 book of photographs was shown to the witness by Mr. Ackheim

6 during the trial on 14th June this year.

7 Once again, we only have a global description from

8 Mr. Reid on the way the photo test was generally applied. We do

9 not know how it was applied to this witness. However, we know,

10 as in the previous cases, the test was not applied according to

11 a protocol. No notes were made and no recording of times.

12 From what we know about the photo test, we submit that

13 you must find that the procedure was not carried out in

14 accordance with the basic rules that ought to be applied to a

15 reliable photo identification. It has become abundantly clear

16 that the procedures used were fatally flawed and we further

17 submit that you cannot be certain, indeed, that it is highly

18 unlikely, that at the time of these tests the witnesses had not

19 been exposed, consciously or unconsciously, to the image of

20 Dusko Tadic.

21 After Professor Wagenaar's extensive comments, it is

22 also unnecessary to stress that the so-called dock IDs have no

23 significant evidentiary meaning. Those who knew Tadic have

24 indicated that they still know him. It does not say anything

25 about the correctness of their other statements.

26 THE PRESIDING JUDGE: Excuse me, Mr. Wladimiroff, with respect to the

27 four, are you finished with the four now?

28 MR. WLADIMIROFF: Yes, your Honour, I am.

Page 8598

1 THE PRESIDING JUDGE: As I recall Dr. Wagenaar's testimony (and I do

2 not have a transcript cite with me), he testified that even if

3 the 50 rules that he talked about, if the rules had been

4 violated, that would not invalidate the test but would only make

5 it of less value. That is how I recall his testimony. Can you

6 help me in that regard?

7 MR. WLADIMIROFF: As a general statement, that is a fair

8 representation of what he told us. But I may also draw your

9 attention to those portions of the evidence where he explained

10 that flawed procedures may lead to unreliable evidence in this

11 matter. Because if, for example, the photos were shown by

12 someone who is aware who is the accused, the evidence shows that

13 the one who is showing, the officer who is administering the

14 photo test, might indicate, therefore, to the witness to whom

15 the test is applied who might be in the photospread as a

16 relevant person.

17 So he gave more examples where the procedure, if not

18 correctly administered, might result in unreliable evidence. So

19 here the issue is, again as what I have said before, is evidence

20 reliable or are there reasons to believe that you cannot exclude

21 that the evidence was obtained in a way that makes it

22 unreliable?

23 I am arguing here that you cannot exclude that,

24 because we have no firm evidence provided by the Prosecution

25 that these procedures were correct and no faults, no mistakes,

26 were made. On the other hand, we have suggested to you, not

27 speculative but to a reasonable standard, that we have good

28 reason to believe that they were not correctly administered.

Page 8599

1 Therefore, there is room for doubt whether these pieces of

2 evidence are reliable. We believe they are not.

3 THE PRESIDING JUDGE: Yes, I just thought that he was here to testify

4 with respect to the validity of the test, and that that was his

5 expertise. I was really trying to recall what his conclusion

6 was. At first, his conclusion was that he could not say that

7 the procedures used by the Prosecutor were not valid because he

8 did not know the procedures.

9 MR. WLADIMIROFF: He could not tell whether it was valid or invalid.

10 THE PRESIDING JUDGE: I understand that, because he did not know.

11 Then he gave us 50 rules that we went through very carefully.

12 Though after we went through them, I thought it was his

13 conclusion that, even if they had been violated as to these

14 four, it would not invalidate the test but would just make it

15 of "less value", as I recall the exact words. Those were for

16 the four. Then for the others, he had no challenge to the ID,

17 the other dock identifications. Is that how you recall it?

18 MR. WLADIMIROFF: As to the four, what I recall, he did not make an

19 assessment of the four, whether specific mistakes would lead to

20 the reliability or unreliability of the evidence. He was simply

21 not in a position to make an assessment on that matter. What we

22 do here is give our assessment which fits in his evidence where

23 he told us that if certain mistakes are made, then it will

24 affect the reliability of the evidence. We suggest to you that

25 these mistakes may have been made or we have good reason to

26 believe that they have been made.

27 THE PRESIDING JUDGE: I understand. OK. Yes, Miss Hollis, are you

28 standing not to interrupt Mr. Wladimiroff but for a redaction?

Page 8600

1 MISS HOLLIS: That is correct, your Honour.

2 THE PRESIDING JUDGE: I think we have accomplished that redaction.

3 MISS HOLLIS: I have several, if I could perhaps tell you which ones

4 I have? It is page 6695 line 7; 6696 lines 1, 2 and 3; 6697

5 line 10; 6698 line 12. These are all locations, your Honour.

6 I apologise for interrupting.

7 THE PRESIDING JUDGE: Go ahead, Mr. Wladimiroff.

8 MR. WLADIMIROFF: Thank you, your Honour. To summarise it, it is our

9 position that the Prosecution failed to show that the procedures

10 in these four cases were without any mistake. On the contrary,

11 we have argued that there are good reasons to believe that

12 mistakes were made.

13 From the evidence of Mr. Reid, your Honours, we know

14 that out of nine persons eight persons made a positive

15 identification and one did not. The Prosecution prefers,

16 however, to produce only four of the witnesses. Therefore, we

17 do not know anything about the quality of identification of the

18 four others. We were not able to cross-examine them.

19 Apparently, they were not very convincing otherwise the

20 Prosecution would certainly have called them to testify.

21 We submit, therefore, that these witnesses invalidly

22 identified a person who the Prosecution claim to be Dusko

23 Tadic. Alternatively, the procedure of the photo test was so

24 poor that the Prosecution preferred not to produce that kind of

25 flawed evidence.

26 From the second-hand information of Mr. Reid, we may

27 assume that the witnesses have been shown the photospread during

28 an average time of three minutes. Actually we do not know how

Page 8601

1 much time in reality the four presented witnesses saw the photo

2 array. Professor Wagenaar explained that the time of showing is

3 relevant for the reliability of the test.

4 I may add to this that the assumption of the

5 Prosecution that prior exposure of Tadic will not harm the

6 identification is totally speculative and certainly contrary to

7 the evidence of Professor Wagenaar. It is not a matter of

8 choice to be made by the witness or the Prosecution to proclaim

9 that seeing Mr. Tadic's image on television or in the media does

10 not invalidate a claim of seeing him before at the scene of the

11 crime.

12 The truth is that we simply do not know, and that

13 prior exposure raises substantial or at least reasonable doubt

14 about the reliability of the identification on the basis of the

15 photospread. We simply do not know ----

16 JUDGE STEPHEN: Mr. Wladimiroff, can you tell me, why do you assume

17 that the Prosecution proceeds on that basis, that prior exposure

18 will not have a deleterious effect?

19 MR. WLADIMIROFF: I heard Miss Hollis arguing that even if Dusko

20 Tadic had seen -- I mean, the four witnesses may have seen the

21 image of Dusko Tadic before, that such a circumstance will not

22 affect their identification.

23 JUDGE STEPHEN: I see. I had not picked that up. Thank you.

24 MR. WLADIMIROFF: As I said, the truth is that we simply do not know

25 how long each of the photospreads were shown to the witness, and

26 we do not know whether they have seen him before, though we have

27 good reasons to believe that they have seen Dusko Tadic before.

28 I explained to you that such a circumstance casts doubt, at

Page 8602

1 least reasonable doubt, about reliability of the identification

2 on the basis of the photospread.

3 We simply do not know whether ----

4 JUDGE STEPHEN: I am sorry, but can we just discuss that for a

5 moment? Are you saying that previous exposure converts what

6 would be an identification into a recognition?


8 JUDGE STEPHEN: Or does it merely make it a poor quality

9 identification?

10 MR. WLADIMIROFF: We need more to make that .....

11 JUDGE STEPHEN: You need to know the extent of exposure, I suppose.

12 MR. WLADIMIROFF: Yes, exactly, so from the simple, the mere

13 circumstance that he might have seen or has seen him does not

14 enable us to make assessment whether he is a recognition witness

15 or a kind of crippled identification witness. We simply do not

16 know.

17 JUDGE STEPHEN: Yes. Thank you.

18 MR. WLADIMIROFF: But the main message here, the important message,

19 is, though, that you cannot rely on this evidence to place the

20 accused on the scene of the crime.

21 I was going to say that we simply do not know whether

22 the witness identifies an image he has seen before from the

23 newspapers or television or, as he claims, from the scene of the

24 crime. The truth is that he simply does not know or that he is

25 not aware from where he knows the image. Therefore, we need

26 more information to make an assessment and we cannot.

27 Another issue raised by the Prosecution is the

28 reasoning of the Prosecution witnesses who claim not to have

Page 8603

1 watched television or to have read newspapers or magazines. The

2 Defence is not convinced by the argument that these witnesses

3 simply explained this by saying they were "not interested by

4 what happened in the former Yugoslavia".

5 We suggest that all Prosecution witnesses were quite

6 willing to testify because they were very motivated to talk and

7 that, therefore, they were fully aware of what happened in the

8 former Yugoslavia. They were certainly not naive persons with

9 no idea of the present reality. They were very well informed

10 witnesses who, in almost all cases, were personally involved and

11 well motivated to testify.

12 In addition to comments on the one-sidedness and

13 other shortcomings in the Prosecution's case, I should like to

14 make a general observation about the questions raised with

15 regard to the reliability of the Prosecution witnesses during

16 cross-examination.

17 Witness by witness you have been able to form an idea

18 about the aspects that could affect the reliability. That

19 applies also, of course, to the cross-examination of the Defence

20 witnesses.

21 However, there is a significant difference. As

22 regards the Prosecution witnesses, the Defence during

23 cross-examination mainly focused on the description of the

24 incident about which the evidence was given. This

25 cross-examination showed that there are many contradictions or

26 discrepancies. We will address this subject in detail when we

27 discuss the evidence.

28 On the other hand, the Prosecution's cross-examination

Page 8604

1 was mainly directed at the unrelated activities of the Defence

2 witness himself, or his family and personal circumstances. The

3 substance of what the witness said in support of the alibi was

4 not, on the whole, undermined by cross-examination.

5 THE PRESIDING JUDGE: Mr. Wladimiroff, do you think perhaps that

6 might be explained by the fact that the Trial Chamber denied the

7 Prosecution access to Defence witness statements? Of course,

8 you had the witness statements which Mr. Kay used very

9 effectively throughout. When I say "effectively", continuously

10 throughout the testimony.

11 MR. WLADIMIROFF: I am not discussing here the whys of things in this

12 context ----

13 THE PRESIDING JUDGE: I know you are not.

14 MR. WLADIMIROFF: --- your Honour, and may I point out again that we

15 had access to the German file and that enabled us to use prior

16 statements. That was a different position to a disclosure

17 obligation of the Prosecution.

18 THE PRESIDING JUDGE: You are correct. You have not said why. I am

19 suggesting why, and asking you whether there was any other

20 attack that was made by the Defence on the substance of the

21 Prosecution testimony other than statements. As I recall it, it

22 was repeated use of statements. I could be wrong.

23 MR. WLADIMIROFF: Your Honour, what I am arguing here is what

24 I argued at the very beginning, whatever the reasons might be

25 for not being able to conduct a full, thorough and independent

26 investigation in this matter, the fact is that the Prosecution

27 did not. As I indicated at the very beginning of my closing

28 argument, they were not able to go into the area. They did not

Page 8605

1 speak to people. That is the reality. Whatever the reasons

2 might have been, it is the reality that they did not. Here too

3 it is reality.

4 THE PRESIDING JUDGE: This is true, but they did attempt to talk to

5 your witnesses before. We made every effort to encourage the

6 two of you to get together, of course. Your witnesses, as they

7 have the right to, chose not to talk with the Prosecutor. So,

8 in terms of the substance of what the Defence witnesses would

9 testify to, that is something that they did not have access to

10 by way of statement or in terms of just talking with the

11 witnesses before. But I think you are correct. Why is not

12 important. It is a fact, but I think it is just a fairer

13 presentation of it, if that is made clear.

14 MR. WLADIMIROFF: If we are going to discuss that again, your Honour,

15 I may recall that we, or at least Mr. Kay and Miss de Bertodano,

16 were always on their feet even in cases where we only had a two

17 or three line proverb. We always examined on the issue, on the

18 incident, not on the person.

19 THE PRESIDING JUDGE: Cross-examination, however you lawyers wish to

20 handle it, there are books written on cross-examination;

21 sometimes you use a prior statement, sometimes you use motive,

22 you use whatever. Mr. Kay probably knows because he is the

23 expert in cross-examination.

24 MR. WLADIMIROFF: Absolutely.

25 THE PRESIDING JUDGE: But, in any case, we will hear from him about

26 the inconsistencies and I will ask him what is the basis.

27 MR. WLADIMIROFF: Thank you, your Honour. As I was dealing with the

28 substance of what the Defence witnesses were saying in support

Page 8606

1 of the alibi and that, as a whole, the substance of that

2 evidence was not undermined by cross-examination of the

3 Prosecution.

4 I have mentioned the word or the term "alibi". Since

5 I have mentioned that, I should point out that the Defence,

6 indeed, succeeded in gathering objective documentary evidence,

7 the duty rosters. It is significant that neither in

8 cross-examination nor in rebuttal the reliability of these

9 documents was seriously doubted.

10 I emphasise, for example, that the rebuttal witness,

11 Fikret Kadiric, was not even asked about Exhibit D66, in spite

12 of the fact that he himself co-operated in preparing of the book

13 and his name was signed at the bottom of one of the pages.

14 In my opening statement I said that the Prosecution of

15 Dusko Tadic started under unfavourable circumstances. The war

16 in Bosnia-Herzegovina was still going on at that time. It was

17 not until this year that the Defence was able to conduct an

18 investigation into the extremely scanty and unreliable

19 documentary information that had become available in the

20 beginning of 1995. It was not until this year that we got

21 access to the actual duty rosters administration and that we

22 could receive "redacted" copies. It was not until October,

23 during the video link, that we could obtain the complete

24 copies. We produced all that material.

25 It was not until this year that we were able to

26 actually carry out an effective investigation. However, a large

27 number of constraints still remained. For instance, due to lack

28 of co-operation on the part of authorities, it remained a

Page 8607

1 problem to trace witnesses. It was difficult to find people

2 willing to disclose information to the Defence. It was even

3 more difficult to persuade people to actually testify as witness

4 before the Tribunal. There were too many cases in which the

5 authorities forbade witnesses to speak with us or forbade

6 witnesses to testify. I may remind you of the ban issued by

7 Simo Drljaca and sustained by the Minister of Home Affairs.

8 Taking into account the attitude of the Prijedor

9 authorities and, more generally, the way in which the Tribunal

10 is regarded in Republic Srpska, we admire the people who showed

11 the courage to come to The Hague and to testify or to come on

12 the video link and to testify. Without them, a fair trial would

13 not have been possible.

14 But, the Court must bear in mind at all times that we

15 were only able to hear a limited number of witnesses. We were

16 unable to persuade many witnesses whom we considered crucial for

17 the Defence case to testify. For instance, it appeared to be

18 impossible to hear within the framework of the Tribunal vital

19 evidence from the people who actually worked in Omarska and

20 Keraterm. There were still many other parts of the indictment

21 that required further investigation, but in respect of which it

22 appeared impossible without the necessary legal tools to talk to

23 the persons concerned or to persuade them to testify.

24 We have come to realise that important information has

25 been withheld from your Court. It must be said that this is

26 inherent to the legal foundation for this Tribunal. You,

27 Judges, cannot do anything upon your own powers, the Defence

28 even less. In this respect, everybody depends entirely on the

Page 8608

1 co-operation of states.

2 I still remember the discussion within the framework

3 of the jurisdiction concerning the question as to whether

4 Republika Srpska is, indeed, a state. Here we are confronted

5 with the fact that a non-existing state cannot be expected

6 to give its co-operation. The negation of Republika Srpska had

7 a very negative effect on the Tadic case, both for the Defence

8 and for the Prosecution.

9 This brings us back to square one and to the reason of

10 the one-sidedness of the evidentiary material of the Prosecution

11 case. Let me, therefore, conclude my introduction with the

12 statement that this trial took place under unfavourable

13 circumstances. There were insufficient possibilities to

14 fundamentally investigate the truth, neither by the Prosecution,

15 nor by the Defence. You will have to make do with the witnesses

16 who press charges on account of their personal involvement,

17 whilst the Defence is limited as regards the possibilities to

18 provide counter evidence.

19 But I stress from the outset that any inadequacies

20 must not be used to the prejudice of the defendant. It must

21 always be at the forefront of your minds that it is for the

22 Prosecution to discharge itself of the burden of proving that

23 the defendant committed the crimes alleged. It cannot be held

24 against Dusko Tadic that evidence crucial for his defence was,

25 through no fault of his own, unavailable to this Court.

26 Your Honour, it seems to be an appropriate moment

27 because I will now beg you to allow Mr. Kay and

28 Miss de Bertodano to analyse the evidence.

Page 8609

1 THE PRESIDING JUDGE: Thank you. Just one question -- I will ask you

2 this before the recess -- you indicated that you would speak to

3 criminal responsibility.

4 MR. WLADIMIROFF: That is right.

5 THE PRESIDING JUDGE: We had asked counsel to address in their

6 submissions Article 7.1 and we have not received anything from

7 the Defence. Are you going to speak orally to criminal

8 responsibility under 7.1?

9 MR. WLADIMIROFF: I will deal with that matter orally.

10 THE PRESIDING JUDGE: Is that after Mr. Kay speaks, because

11 I understand you have finished?

12 MR. WLADIMIROFF: After Mr. Kay's analysis of the Prosecution case,

13 Miss de Bertodano will deal with the Defence case, as I said,

14 and Mr. Orie will discuss the character of the conflict. Then

15 I will finally deal with the indictment, criminal

16 responsibility, and all that kind of legal matters.

17 THE PRESIDING JUDGE: Very good, I will wait until then and expect

18 that you will address Article 7.1. We will stand in recess for

19 20 minutes.

20 4.00 p.m.

21 (The Court adjourned for a short time)

22 4.20 p.m.

23 THE PRESIDING JUDGE: Mr. Kay, would you like to begin?

24 MR. KAY: Thank you, your Honour. Let us start, first of all, with

25 some background allegations that have been made concerning the

26 character of Dusko Tadic before the conflict in Kozarac. In

27 many respects, the Prosecution have presented certain incidents

28 that happened in the period from 1989 to 1992 as revealing the

Page 8610

1 character of a man who was, putting it bluntly, anti-Muslim or

2 ill-disposed to those Muslim residents within Kozarac and with

3 whom he had lived, apparently contentedly, for many years.

4 The first feature of this evidence is the so-called

5 threatening letter. Curiously, this was a document that I do

6 not think was produced during the trial. It seems to have been

7 received by Mr. Tadic at a time when there was, perhaps, rising

8 ethnic consciousness in the region and in the former Yugoslavia,

9 and at a time when for the first time people were identifying

10 themselves with political parties which, ironically, all appear

11 to have split under ethnic lines, SDS being mainly

12 representative of the Serb people, SDA being mainly

13 representative of the Muslim people, and following and

14 supporting their aspirations.

15 One wonders at this time in 1989 what possible reason

16 that Dusko Tadic would have had in writing this letter himself

17 and sending it to a newspaper in Belgrade. At this time there

18 is no evidence that he was a member of the SDS. There is no

19 evidence that he had become involved in politics, and to try to

20 inspire in some way antipathy to himself as a Serb living in

21 Kozarac, we suggest has no possible foundation and no reasonable

22 support as an idea.

23 JUDGE STEPHEN: Mr. Kay, I notice you say "and sending it to

24 Belgrade". I know the suggestion that he wrote it himself, but

25 I had thought that the leaking of the letter was not attributed

26 by anyone to the accused.

27 MR. KAY: It was said in evidence at one stage, and I hope the Court

28 forgives me for not remembering the passage exactly, that it was

Page 8611

1 printed in a newspaper ----

2 JUDGE STEPHEN: Yes, indeed.

3 MR. KAY: --- in Belgrade and ----

4 JUDGE STEPHEN: But it was not suggested ----

5 MR. KAY: --- in that way achieved prominence.

6 JUDGE STEPHEN: --- that he had a hand in that, was it?

7 MR. KAY: I think it was in one passage of evidence.

8 JUDGE STEPHEN: I see, thank you.

9 THE PRESIDING JUDGE: I thought that the suggestion was that

10 Mrs. Tadic had written it.

11 MR. KAY: We have had both suggestions, that Mrs. Tadic wrote it,

12 Mr. Tadic wrote it and, in those circumstances, it seems almost

13 as though those who did not like him or felt that there was an

14 explanation that was required to be given were reversing the

15 situation to the recipient of the letter: "Oh, that is nothing

16 to do with us, our people did not write that letter. He

17 probably wrote it himself".

18 That is a curious way of approaching such a problem,

19 in this curious way that this letter was supposedly something

20 that he was to have produced. But there we have it. It seems

21 to have been something that was a feature within Kozarac life

22 and Kozarac society. Everyone knew about it.

23 We believe that the presentation of this particular

24 evidence in this form as being a way of presenting Dusko Tadic

25 in a bad light is unfair and has no logical support, because one

26 then considers the other aspect of his standing in the local

27 community which was his cafe that he opened and built. One

28 wonders why someone opening a business in the middle of Kozarac,

Page 8612

1 which was a 95 per cent Muslim dominated area, and the evidence

2 has it that the centre was particularly dominated by the Muslim

3 community, would seek to potentially upset and turn away all his

4 potential customers. Again, there is no logic in that.

5 These assertions that he ran a cafe that made certain

6 people within the community unwelcome, in our submission, is

7 wrong. There was a suggestion somewhere in the evidence that,

8 in fact, perhaps local Muslims boycotted it. Again this is an

9 example of a turning around of something that was happening

10 within Kozarac, and an unfair interpretation being put on

11 people's own behaviour against this man that has been stressed

12 within the evidence that does not do him justice?

13 There was no doubt that at the time of the beginning of

14 1992 people were passing through Kozarac as the troops were

15 being drawn from the Croatian front, and military personnel were

16 obviously in the area in far greater numbers than they had been

17 before. But one wonders why, if this was a cafe that excluded

18 so many people or made them unwelcome, so many of the

19 Prosecution witnesses seem to have frequented it, and so many

20 seem to have been the only Muslim who would go into the cafe.

21 Clearly, in our submission, there is an attempt here to paint

22 the picture of a man who was in conflict with those people who

23 were Muslims in his local community that does him less than

24 justice.

25 We now turn to politics and his membership of the SDS

26 which the Prosecution have presented as a key feature of his

27 standing in terms of the ethnic cleansing of the Kozarac area,

28 and his able to take up positions of power later on in the

Page 8613

1 year. It is quite clear from the evidence that the SDS had no

2 party base or effective power base within Kozarac until much

3 later, in August and September 1992 does a local party start to

4 become organised.

5 It is quite clear that the referendum that was

6 established in November 1991 was not a well-run, efficiently

7 organised affair. There were just over 100 voters who voted in

8 it on the polling day. It is quite clear that there is no

9 access here by Dusko Tadic at a very local level to the

10 organisation that one might expect that the main party in

11 Prijedor could have given him.

12 The fact that he is chosen to be the returning officer

13 or supervise the referendum on that day, in our submission, does

14 not provide a full enough picture of the political fanatic that

15 the Prosecution have attempted to explain him as being when one

16 considers the bare facts.

17 We listened to much evidence concerning the political

18 philosophy of the SDS and publications by various of their

19 advisers or gurus, if I can call them that, but none of that in

20 any way has been connected to Dusko Tadic. There is no

21 indication that he was either learned or active in the SDS

22 beyond a very local level, and at a level that is contrary to

23 how the Prosecution are presenting his image as someone who

24 would be prepared fanatically to pursue and implement their

25 policy of the ethnic cleansing of the area.

26 In absolute contrary distinction of this, we have his

27 role in the so-called League of Peace in May 1992 when various

28 citizens, not connected with political parties, deliberately

Page 8614

1 banded themselves together to go to Prijedor to negotiate on

2 behalf of the people within Kozarac to try to get a peaceful

3 solution to the problems that were manifesting themselves as

4 between Prijedor and Kozarac after the Serb takeover of power on

5 April 29th.

6 It is interesting that the local citizens chose Dusko

7 Tadic, one would have thought not because he was going to be a

8 destructive influence, but that Kemal Susic who knew him well

9 thought that it would be a positive role that he could play.

10 One of the other members of that group chose, perhaps, to

11 criticise his role later, and say that he did not provide the

12 local priest and get him back into Kozarac. But again is this

13 an example of blame being put on this man for something that he

14 was not in a position to achieve?

15 The simple fact of the matter remains that that group

16 of citizens chose to use him and he went along with their

17 attempt at reconciliation to a degree that shows, in our

18 submission, that this was not a man embarking on a conflict

19 against those people he had lived with for so many years, but a

20 man trying to achieve the best solution to Kozarac that was the

21 place that he had grown up in, that he loved greatly and where

22 his business was.

23 That is, in many respects, a significant point for the

24 Defence, that he was to a degree popular within Kozarac. He did

25 have himself a great commitment to the life of the town. If he

26 was aware of what was going to happen to Kozarac, one wonders

27 why he permits his brother to open up a business at the

28 beginning of May and have a delivery of alcohol only two or

Page 8615

1 three days before the conflict started and, in those

2 circumstances, put finances, goods, at risk. It just does not

3 fit the picture.

4 To say he was going to be aware of the conflict on

5 May 24th is, in fact, not looking at this evidence closely

6 enough to see what he had at stake within the town and to see

7 what his own conduct and behaviour was like. It was tried to be

8 said against him that he was aware that something was going to

9 happen. Many of those Muslim residents and citizens of Kozarac

10 were aware that something was going to happen. Kemal Susic said

11 that himself in his evidence. Everyone had a feeling that

12 something was going to happen. Hence, Muslims as well as Serb

13 families were seeking to leave the region to avoid what was

14 going to eventually occur. I dare say no one expected things to

15 turn out quite as they did, but there was this great feeling

16 that something was going to happen.

17 Citing disputes in cafes between two men, complaints

18 about young men being involved in sexual relations with the

19 niece as being examples of extreme behaviour, provocative

20 behaviour, against Muslim residents, or having a dispute over

21 some parking ticket as a reason for embarking upon most extreme

22 behaviour possible in relation to that community, in our

23 submission, shows rather the bottom of the barrel being scraped

24 rather than hard and substantial evidence being put before this

25 court of behaviour that one would expect would fit the profile

26 that the Prosecution have attempted to build.

27 Again, when one looks at his later behaviour in the

28 year of being involved with the Red Cross, of work within

Page 8616

1 Kozarac and the Local Commune, that implies a man helping his

2 town and behaviour that is consistent with the way he had led

3 his life for so many years.

4 The church incident that was supposed to have happened

5 at some stage round about March, maybe April 1992, derives from

6 the evidence of Witness Q, and about him I will tell the Court

7 more later. We have a problem here as to the reliability of

8 this evidence. Young children who had been standing guard duty

9 near the Serb Orthodox church coming to complain to Witness Q

10 and fellow people on checkpoint duty near the hospital at a time

11 when it was almost midnight, and the adult who had been down

12 there near the church on guard duty himself not coming to inform

13 Witness Q over what happened, one wonders why, if this was

14 right, and not excited imaginations running riot, young people

15 out too late doing something that, perhaps, they were not suited

16 to do in an area where there is a lot of anxiety and there are

17 tensions and their imaginations get the better of them, one

18 wonders why they did not go down to the police station, why they

19 happened to go to see Witness Q.

20 About this incident, one wonders how on earth they

21 were able to see a man coming to the back of the church with a

22 canister of petrol. The Court has heard evidence about the

23 lighting at the front of the church. The witness himself had to

24 concede that there were no lights at the back of the church. We

25 have also heard evidence about the state of the lighting, what

26 it was like. In many respects, this incident, as described by

27 Witness Q, was rather making Dusko Tadic into the bogey man of

28 Kozarac that these young people were, perhaps, imagining and

Page 8617

1 giving such a report if, indeed, it was true or accurate.

2 THE PRESIDING JUDGE: Excuse me. Mr. Kay, I recall that testimony

3 because I remember that that was our first discussion back and

4 forth about hearsay -- if it was not the first, it certainly was

5 a long discussion -- but I also seem to recall that there was an

6 adult who confirmed that incident other than Q. Am I mistaken?

7 MR. KAY: There was a man called Besic and he was on duty at the

8 time, but Q confirmed to me he did not actually speak to Besic.

9 He spoke to another adult who, I think, was the parent or father

10 of one of the children. That is as far as the evidence got.

11 The sighting was by the children who were on this guard duty.

12 I am much obliged, your Honour.

13 If we turn now to the indictment, Witness Q, who has

14 been spoken of by me in relation to the background, is really

15 the Prosecution witness who kicks off these allegations within

16 the indictment because of the lighting of the flares on 24th May

17 between 8.00 to 9 o'clock in the evening during the attack on

18 Kozarac.

19 Paragraph 4.1 of the indictment largely reflects many

20 of the allegations made by this particular witness. It is

21 curious for this reason: how did Dusko Tadic get into Kozarac

22 during the shelling of the town? What on earth would he be

23 doing lighting flares in an area between the hospital and his

24 own house which would have every chance of getting his own house

25 bombed as much as the shelling of the hospital? It is very odd

26 that during the shelling of Kozarac when there are no other

27 reports of any form of insurgency by the military who are

28 conducting this operation that for some reason he with one

Page 8618

1 other, named as Bosko Dragicevic, would enter the town and do

2 something such as this. It is also ----

3 JUDGE STEPHEN: I am sorry, you say "no other reports of

4 insurgency"?

5 MR. KAY: Yes.

6 JUDGE STEPHEN: What do you mean by that?

7 MR. KAY: Going into the town and taking part in the conflict during

8 this period. Our first report of troops appear to be 26th May,

9 I think.

10 JUDGE STEPHEN: Yes, that is right.

11 THE PRESIDING JUDGE: Did not Mr. Tadic testify he saw a tank earlier

12 and went with the priest to see about it? That was before they

13 left.

14 MR. KAY: And that is before the attack on Kozarac. This is a

15 planned military operation. There is no doubt about it. The

16 shelling happens at 2 o'clock in the afternoon and then the

17 troops go in later, which is a classical movement, but there is

18 no evidence of any other form of insurgency during this period.

19 One wonders why you would be sending people in in this way and

20 putting themselves at risk of being hit by shells.

21 You also wonder why on earth the artillery would not

22 have had the correct sighting from where they were firing these

23 shells if they wanted to bomb the hospital or bomb any other

24 building within Kozarac. Perhaps the lack of sophistication in

25 this passage of Witness Q's testimony rather exposes it for what

26 it is.

27 We suggest to the Court that it was a made-up story.

28 There is every indication of it being made up because of the

Page 8619

1 contradiction of his evidence in this Court with what he had

2 said previously in a statement. I will remind the Court of what

3 he said in his previous statement, that the shelling started

4 after he had had his lunch, that he took cover and in the

5 evening went up to the hospital and saw the incident relating to

6 the flares. No electricity, of course, in Kozarac at this

7 time. It must have been a very dark place, but still he claims

8 to have seen this.

9 His evidence before the Court was that he went up to

10 the hospital after he had had his lunch. He was on duty at the

11 hospital from that period until that time between 8.00 to

12 9 o'clock in the evening, and then walked down from the hospital

13 to return to his home to see what was happening within Kozarac

14 town. We have heard a lot of talk about the value of

15 inconsistent statements, the problems with interpretation, but

16 this is a completely different picture, completely different

17 periods and passages of time.

18 One account has him leaving home at night and seeing

19 it; the other has him leaving the hospital and coming back to

20 the home and seeing it. There are a number of other unanswered

21 questions about this testimony, because the next identification

22 of Dusko Tadic in the region, coincidentally also by Witness Q,

23 is the morning of 26th May. So one wonders what he was doing

24 during this period of time from 24th May, having allegedly lit a

25 flare so that the hospital could be bombed, until that period of

26 26th May, some 36 plus hours. Where was he? What was he

27 doing? Why would he be there? Or has this statement, which we

28 suggest is fabricated, been put before this Court for emotive

Page 8620

1 reasons, and the fact that Dusko Tadic's house is quite near the

2 hospital is, perhaps, an inconvenience for this particular

3 witness, but the hospital has such emotive connotations it is

4 guaranteed to bring horror to those listening to evidence, to

5 those listening to his account, that it can instinctively invoke

6 prejudice.

7 There are other examples of this within this witness's

8 testimony. A man stabbed so that he was stuck against the door

9 of a house, a child killed by a pitchfork, another gruesome

10 killing in some particular way of which I will just remind

11 myself now -- a head on a bayonet. If one looks at the context

12 of this witness's evidence with these extreme allegations,

13 regretfully, we submit to this Court, that this is not a witness

14 helping this Court with the truth and the facts. This is a

15 witness who is trying to prejudice the Court, to prejudice the

16 Court and anyone else who will listen, against the Serbs and

17 against Dusko Tadic who was a Serb.

18 That statement of his about 24th May and the firing of

19 the flares just does not make sense. The flaws that I have put

20 before the Court concerning the fact that the artillery you

21 would have thought would have been able to hit the hospital if

22 they had wanted to, the fact that he has given inconsistent

23 statements and the fact that this witness claims to have seen

24 all this in a state of darkness, and when there is a great gap

25 in time, we suggest, puts his evidence into that category that

26 the Court should reject.

27 As I said, the next sighting is, indeed, by Witness

28 Q. In relation to this matter, there is a further example that

Page 8621

1 he is prepared to make up stories within his testimony if it

2 suits his purposes to try to bolster his credibility. This

3 concerns the morning of 26th May down at the triangle at the

4 bottom of Marsala Tita Street, and the allegation which is set

5 out in the indictment here of the beating of two policemen. In

6 fact, in his evidence he only gave evidence of one beating of

7 one policeman and, in our observations on the indictment, we

8 made this point to the Court for them to note in relation to any

9 findings that there may be.

10 He is down in the centre of Kozarac in that morning of

11 26th May with a kalashnikov rifle dressed in a military uniform

12 as the convoy of people had come down Marsala Tita Street, the

13 troops had moved in, and the Court has a great idea of the

14 number of troops that there were and what they were doing in and

15 around the Marsala Tita Street on that day, and yet he claims

16 that he was able to move around unseen and to see Dusko Tadic at

17 the triangle with Goran Borovnica assaulting one of the

18 policemen held there, a policeman called Alic.

19 How do we test the reliability of his evidence?

20 Again, we can go back to his previous statement where he claimed

21 that Goran Borovnica hit the particular policeman with a rifle.

22 Again, we can look at what he described as what was happening

23 down at the triangle. He claimed that people were being

24 diverted to Prijedor and Trnopolje, but we have other evidence

25 that, in fact, that was all happening elsewhere than at the

26 triangle, but at the Limenka bus station further down on the new

27 Banja Luka/Prijedor highway.

28 If he was able to move around Kozarac with a

Page 8622

1 kalashnikov dressed as he was and avoid detection by the

2 military that were taking over Kozarac at that time, that would

3 be very surprising, being so close to the centre of that town.

4 How did he manage it? We submit that again he has not told the

5 truth about this, but he is linking himself to certain

6 incidents.

7 When cross-examined, and these flaws in his evidence

8 were pointed out to him concerning the account he had given

9 previously, he claimed to have seen another incident elsewhere

10 in Kozarac where beatings were taking place by Dusko Tadic of

11 other policemen. Is this a witness who is prepared on his feet

12 to make up a story to serve his own ends? We submit that that

13 was a classic example of him doing that.

14 There were a number of exaggerations and we would say

15 he is, perhaps, a fantasist concerning his evidence. He

16 described himself as part of an armed brigade escaping capture;

17 that he was destroying checkpoints with a Captain Cirkin. They

18 had plans to liberate Trnopolje. I have also given the examples

19 of extreme killings concerning a child pierced with a rake, a

20 man against a door with a knife and the head on a bayonet.

21 We ask the Court to look with great care at this

22 witness's testimony, and the flaws that have been exposed within

23 it, we submit, provide a considerable doubt as to the basis of

24 his account and the logic of what he is saying does not follow.

25 But there we are. He came to give evidence, and this is one of

26 the problems that Professor Wladimiroff has stressed in his

27 opening, people will be prepared to come to this Court to give

28 accounts. This is a very unusual case and unusual trial. It

Page 8623

1 does not happen in ordinary circumstances, and the emotions and

2 the loss to many are so great that, perhaps, there may almost be

3 a compulsion for certain witnesses not to assist this Court with

4 genuine evidence.

5 This witness also -- I will deal with him now in

6 relation to two other matters -- claimed to have seen Dusko

7 Tadic at Keraterm. It is interesting that, in fact, there were

8 only four witnesses in this whole case who claimed to have seen

9 Dusko Tadic at Keraterm, and he was one of them in a room of 572

10 people. His usual place was the far right-hand corner of

11 room 2. He claimed, in those circumstances, to have been able

12 to have seen Dusko Tadic at some considerable distance away.

13 Perhaps the flavour of his evidence can be taken from

14 the fact that he said he went into a van that was taking

15 prisoners, not on the Banja Luka road, but to Kozarac and

16 Omarska. That may, indeed, give a flavour of this witness and

17 perhaps the way he is prepared to paint a picture in a certain

18 way. There is no way he would have known a van was going to

19 Omarska. He gave no explanation for why he should say that.

20 The van would be going on the Banja Luka road if his evidence

21 was to be taken, perhaps, to be right.

22 His second sighting, and it is difficult for the

23 Defence to deal with sightings without dates. It is quite

24 apparent it is easy for anyone to say they have seen someone and

25 maybe you can say, "No, you did not", maybe they can say, "Yes,

26 I did", but it is difficult with sightings to try to pierce into

27 that evidence. We submit the Court will have a very heavy task,

28 a tough task, in relation to evidence such as this in having to

Page 8624

1 weigh up whether it is genuine testimony or not. But it is

2 interesting that of the sightings in Keraterm (of which there

3 were only four witnesses) it also includes Witness Q.

4 Moving on back to Kozarac and the attack on Kozarac,

5 paragraph 4.1 of the indictment deals with this period between

6 24th to 27th May. After the incident at the triangle when it

7 was alleged that Dusko Tadic beat one of the policemen standing

8 there at the same time as Goran Borovnica, the next sighting is

9 by the witness Azra Blazevic in the afternoon of that day. The

10 Court will remember her testimony well -- I think she has been a

11 witness often referred to here -- and what amounts to a brief

12 fleeting glance of a lady standing one side of the triangle

13 observing a figure passing the other side of the triangle for a

14 short period of time which she is convinced, because of a remark

15 made at the time, was Dusko Tadic. We ask the Court to consider

16 those matters relating to identification evidence and whether

17 this evidence is reliable or not and the particular sighting,

18 the circumstances, the period of time to judge whether this is

19 indeed a correct sighting or what we submit has all the

20 capability of being a mistaken sighting. We say that because of

21 the vast range of activity that Dusko Tadic was supposed to be

22 undertaking on 26th May within Kozarac. I will come to those

23 details in a moment. On 26th May he is also seen at

24 Keraterm ----

25 THE PRESIDING JUDGE: Excuse me Mr. Kay before you leave that, the

26 Defence offered a photograph, a group of photographs from

27 Mr. Popovic?

28 MR. KAY: Petrovic.

Page 8625

1 THE PRESIDING JUDGE: Was that designed to relate to this instance?

2 MR. KAY: Yes.

3 THE PRESIDING JUDGE: It was the photographs from the pastry shop

4 across the triangle?

5 MR. KAY: Yes, and the progress across that triangle. The photograph

6 was taken from the position where she would have been according

7 to her testimony. Also on this day, and the Prosecution in

8 their closing address through Miss Hollis said that this

9 involved a part of the preparatory conduct of Dusko Tadic before

10 he went to Kozarac, but Witness S on whom they seem to place

11 great reliance apparently saw this man, Dusko Tadic, in the

12 morning of 26th May at Keraterm. Again, one sets that against

13 the alleged sighting by Witness Q of the morning of 26th May,

14 and one wonders quite how this Defendant was supposed to have

15 achieved so much on one day, given what the Court will

16 appreciate must have been a military operation with people with

17 specific tasks and duties that would have been controlled by

18 captains or lieutenants or colonels and people having a job to

19 do. But there it is. On the morning of 26th May Witness S puts

20 the Defendant Dusko Tadic at Keraterm. Witness Q puts him at

21 the triangle on the morning of 26th May.

22 So we move from there with those matters to the

23 witness Seferovic who gave evidence about the church killings on

24 the morning of 26th May. As he had come back into the town and

25 fed his birds and moved through the back gardens of various

26 houses, he claimed, to get to the orchard and to peer through

27 the bushes and, as he alleged, see Dusko Tadic with part of a

28 group of military men slitting the throat of the chief of police

Page 8626

1 of Kozarac, Osman, and also of another policeman called Adem

2 Besic.

3 At some stage I suppose sightings stop, but this is

4 all on the morning of 26th May, given these numbers of people

5 moving around Kozarac and in a military situation. This Court

6 is in a dilemma, we submit. The Prosecution put reliance on

7 Witness S and the Keraterm sighting. Quite what was he doing

8 there, what was his role, what was his function? They have also

9 called the evidence of Seferovic, the man with the birds, as

10 well as Witness Q. If Seferovic had seen what he saw, the

11 slitting of men's throats from the front, one would have

12 expected Dusko Tadic to have been soaked in blood on that day.

13 There has been no mention of that from the witnesses. When that

14 witness Seferovic went to feed his birds, went down to his

15 brother's house not far from the church and proceeded through

16 the backs of the houses, why was he going there? What was he

17 doing? What was the purpose? The previous periods he had left

18 Kozarac, everyone knew Kozarac was a danger. He left Kozarac.

19 He went away. He only made fleeting visits into that town. Why

20 was he going further down into trouble? He was not going to go

21 to a collection centre, he was not going to give himself up, if

22 he is telling the truth about what he saw, or is this a made-up

23 story by a man perhaps who knew the relatives and family of the

24 victims, and is trying to do his bit for them?

25 Certainly, if all these witnesses are to be believed

26 about these sightings, someone somewhere cannot be right about

27 that morning of 26th May. Someone has to be making it up within

28 the Prosecution case. The Defence case is Dusko Tadic was not

Page 8627

1 there, that he did not do those things.

2 The other sighting on 26th May within Kozarac itself

3 was as I referred to, the triangle and Azra Blazevic seeing him

4 there in the afternoon and I have addressed the Court on that

5 matter. There is the further sighting by the witness Mujic of

6 Dusko Tadic being on a tank in Marsala Tita Street. He did not

7 give a time for it. He gave an account which varied with a

8 previous statement, which claimed that Dusko Tadic was riding a

9 tank through Kozarac, perhaps in very dramatic fashion. This

10 account that he gave before the Court was that he was just on

11 the tank and, for some reason, one knows not why, he said that

12 he hit a small boy on the head or cuffed him on the ear. Quite

13 why and for what purpose one does not know, and there was no

14 explanation about that.

15 Also during this period, slightly outside Kozarac but

16 probably still part of it, there is the Limenka bus station

17 sighting by Mehmed Alic who gives evidence also on paragraph 6.

18 He had gone from the place where he lived with his daughter, not

19 Nasiha Klipic who gave evidence but another daughter, and his

20 wife. He thought it was probably in the morning, but he went to

21 Limenka and that was where there was division of prisoners at

22 that place, some being sent to Prijedor, some to Trnopolje. He

23 claimed to have seen Dusko Tadic there. Yet another job. Yet

24 another function. Yet another role. We submit again that this

25 may well be a fabricated account. I say that with great respect

26 to a man who has suffered the losses that he has, but we have

27 our job to do on behalf of the Defence to point out matters in

28 evidence to the Court and sometimes we cannot do it other than

Page 8628

1 in a blunt way. Anything less may be taken as being less than

2 convincing.

3 But it is interesting that he claims that sighting at

4 Limenka on 26th May where people are being divided, because on

5 27th May his daughter Nasiha Klipic also claims that she saw

6 Dusko Tadic, not at Limenka but at Zikina's being part of the

7 forces taking people on to the buses for them to be taken to

8 either Prijedor, Trnopolje or elsewhere. She had also claimed a

9 sighting before Zikina's whilst on her way, whilst travelling in

10 the convoy down the new Banja Luka/Prijedor highway. That was

11 when she claimed she saw Dusko Tadic in a car being driven by a

12 policeman called Brane Balte, probably not far from Limenka's

13 where the father claims to have seen Dusko Tadic on that day on

14 26th May. It does seem an odd coincidence that these two

15 witnesses who are related see, apparently, Dusko Tadic on

16 different days at the various bus stations where they are sent

17 off. Of all the witnesses passing through Limenka and Zikina's

18 on this day of 26th/27th May they are the only ones who claim

19 sightings there. Many other witnesses have been called to give

20 evidence, and I will give the Court some of the names for 26th

21 May: Hamdija Kahrimanovic, Kemal Susic, Halid Mujkanovic,

22 Muharem Besic, Husein Hodzic, Ermin Strikovic. On 27th May

23 passing through Limenka or Zikina's were Ferid Mujcic, Salko

24 Karabasic, Sulejman Besic, Sefik Kesic, Adil Jakupovic, Nasiha

25 Jakupovic, Bahrija Denic, Eniz Besic and Witness H.

26 JUDGE STEPHEN: Mr. Kay, I understand the latter part of your very

27 reasoned submission. I do not understand why it is an odd

28 coincidence that father and daughter should see at slightly

Page 8629

1 different places the accused performing a similar task.

2 MR. KAY: Our submission is it is an odd coincidence that it is these

3 two witnesses who are related.

4 JUDGE STEPHEN: And no one else?

5 MR. KAY: And no one else who see this, and so many people pass

6 through and do not refer to Dusko Tadic being there.

7 Conversely, if they are right and he was part of the group

8 separating people down at the Limenka and Zikina's on these

9 days, what else was he doing? One has reasonably to draw the

10 line in relation to all these functions and jobs that he is

11 doing on 26th May 27th May which is surprisingly of a very

12 different nature.

13 JUDGE STEPHEN: So the coincidence that you are pointing out is not

14 so much that father and daughter see him, but that they say they

15 see him and no one else does?

16 MR. KAY: Yes.

17 JUDGE STEPHEN: Yes, I follow. I am sorry.

18 MR. KAY: I am using irony there perhaps which sometimes works,

19 sometimes does not.

20 THE PRESIDING JUDGE: I understood you!

21 MR. KAY: Yes. Also on that day of 27th May, and I am moving to that

22 date now having touched on the sightings of Nasiha Klipic at

23 about 4.00 p.m. on the afternoon of that day, Witness S again

24 apparently sees Dusko Tadic at Keraterm. He gave his evidence

25 about that. So again it is not only one day where these

26 apparent division of roles, multiplicity of tasks, we say, call

27 into question the reliability of this evidence; it is also the

28 next day.

Page 8630

1 I will turn now to Nasiha Klipic's evidence. The

2 Court may remember her account of coming down in this poor

3 bedraggled convoy from Vidovici through Kozarac, down on to the

4 new highway, and whilst on a cart she described seeing a car

5 being driven by the man Brane Balte with Dusko Tadic in the

6 front passenger seat, someone else in the back of the car, but

7 going in the opposite direction from the way she was travelling;

8 going towards Kozarac. The next account that she gives is

9 arriving at Zikina's tavern and seeing Dusko Tadic there

10 directing or being part of the group of soldiers separating

11 people into buses. Again, how on earth, if he is travelling one

12 way, would he have got back to the site at Zikina's? Unless she

13 had missed him in the traffic or something like that, but she

14 gave particular evidence that she was looking out for police

15 officers because her husband had been a policeman and she felt

16 that on that particular day someone in the police might help her

17 in her unfortunate circumstances. These two areas of Zikina's

18 and Limenka's bus stops are not far apart.

19 THE PRESIDING JUDGE: Mr. Kay, was there not evidence given as to the

20 time though that she had seen him, both when he passed her and

21 also when she saw him at the bus station? I thought that the

22 Prosecution had specifically asked for times on that and the

23 length of the column, I thought, I guess I would have to go back

24 to the transcript ----

25 MR. KAY: I think it actually came from cross-examination, your

26 Honour. I was asking about the times and she arrived at

27 Zikina's at 4.00 p.m. She was at the front of this column that

28 had come down from Vidovici or near the front, and that is how

Page 8631

1 she remained. There was a series of questions from me which may

2 have been painful for the Court at the time and I was conscious

3 I was taking time and no one might have appreciated what I was

4 doing, but it was this front of the column that was moving down

5 and she remained near the front throughout the whole of this

6 journey she undertook.

7 THE PRESIDING JUDGE: I thought it was from another witness, but

8 I will have to go back and check. Excuse me.

9 JUDGE STEPHEN: The actual location of the place where they were

10 sorting out the men and the women, was that near Susici or not?

11 MR. KAY: That is right, your Honour.

12 JUDGE STEPHEN: Which is, according to my notation on Exhibit 280, on

13 the old road, but it was in fact on the new road?

14 MR. KAY: It is on the new road, the asphalt road as they call it.

15 JUDGE STEPHEN: Of course, one immediately imagines that the accused

16 might have gone back on the old road, but there does not seem to

17 be any cross-over between the two. I do not really know where

18 the locations are, the two that you have been talking about.

19 MR. KAY: We have heard testimony that ----

20 JUDGE STEPHEN: They are not shown on the map.

21 MR. KAY: --- Zikina's was about -- no -- was about one and a half

22 kilometres from where the head of the Kozarac Marsala Tita

23 Street joins the ----

24 JUDGE STEPHEN: Intersection.

25 MR. KAY: --- intersection. We are not talking great distances at

26 all. We put this before the Court as a curious dilemma. If he

27 going one way, presumably to do something or to be involved in

28 something, how is it that when she arrives he is already

Page 8632

1 involved in doing something, which is apparently the separation

2 of the people? For what it is worth, and I am not making a big

3 point on this, in her previous statement she had said that Dusko

4 Tadic was giving the orders to people, but in her evidence she

5 said another man was giving the orders and Dusko Tadic was one

6 of those who was accepting the orders, dividing people and

7 putting them on the various buses. But this is a problem within

8 the Prosecution case, because there must be some logic to what

9 is going on on this day which would have been planned and which

10 the military people appeared to know what they were doing. How

11 on earth could he be in two different places at the same time?

12 I will turn now to the other important allegation on 27th

13 May, which will have to go into closed session with the sound

14 turned off. I do not know if your Honour wants me to start that

15 tomorrow?

16 THE PRESIDING JUDGE: Yes, would you please turn off -- any objection

17 from the Prosecution, Miss Hollis?

18 MISS HOLLIS: No, your Honour.

19 THE PRESIDING JUDGE: Fine. We will turn off the sound please and we

20 will go into closed session.









Page 8640

1 (Private Session)












13 Pages 8633 to 8640 redacted in private Session.













26 5.40 p.m.

27 (The hearing adjourned until the following day)