1 Wednesday, 27th November 1996.

2 10.00 a.m.

3 THE PRESIDING JUDGE: Mr. Kay, would you like to continue?

4 MR. KAY: Thank you, your Honour. We are still on paragraph 4.1 of

5 the indictment. I have dealt with the allegations concerning

6 paragraph 11, which fit in within the time frame of 4.1 and

7 I have made my observations on those matters to the Court.

8 Looking still then at paragraph 4.1, there is the

9 further allegation of a beating of a number of Muslim males

10 seized and detained at Prijedor military barracks. One

11 observation we have to make about this is that it is outside

12 that time frame of 24th to 27th May that heads off this section

13 of paragraph 4.1 but, no doubt, those allegations fit elsewhere

14 within the framework of this case.

15 Again, if I may make this observation, that there are

16 two witnesses alone who give evidence of beatings at Prijedor

17 barracks, Uzeir Besic and Sead Halvadzic. The allegation

18 concerning Uzeir Besic is on 3rd June 1992 and amounts after his

19 beating in the corridor of the barracks to a man he says was

20 Dusko Tadic giving him a kicking whilst he was on the ground

21 after his interrogation. Again, we have made observations about

22 how people are able to make these allegations and this kind of

23 sighting, and we emphasise that the Court will have to consider

24 carefully whether this is just one more allegation thrown into

25 the pot or happened.

26 There does not seem to be in the context of this case

27 much other evidence that links Dusko Tadic with Prijedor

28 barracks. Our submission is that it is highly isolated and we

1 would say something that the Court should treat with extreme

2 caution, particularly when one considers the evidence of the

3 second witness, Sead Halvadzic, who was there on 8th June 1992

4 having been taken captive. This was one of the identification

5 witnesses who had not known Dusko Tadic before. His

6 identification of the defendant using the photospread on,

7 I believe, 14th June 1996, over four years later, a black and

8 white photograph, having resided in a country where the

9 newspaper that he claimed to have only looked at, [redacted]

10 we know from the media expert, Thomas Deichmann, who

11 gave evidence, had printed some 82 articles between February

12 1994 and October 1996 containing information about Dusko Tadic.

13 He had the peculiar observation about his desire to hunt down

14 war criminals, wherever they were.

15 Interestingly as well, within his evidence all his

16 allegations concerning his own beating and indeed people he came

17 across, if I can put it this way, refer to all the big names in

18 Omarska -- Meakic and others. We submit to the Court that his

19 evidence should be taken with extreme caution, particularly in

20 view of some four years later using the photospread as a means

21 of identification in circumstances when there had been a great

22 deal of publicity about this case throughout the world.

23 JUDGE STEPHEN: Mr. Kay, what did you say, that he claimed to have

24 only looked at [redacted]

25 MR. KAY: Yes.

26 JUDGE STEPHEN: That paper was then examined, was it ----

27 MR. KAY: Yes.

28 JUDGE STEPHEN: --- as to its contents?

1 MR. KAY: Yes. Your Honour, it is the biggest newspaper in

2 [redacted] Thomas Deichmann told us, and it contained 82 articles

3 in that period of time. One has to make this kind of

4 observation, people may not want to look at this kind of content

5 having experienced these horrific circumstances, but the fact of

6 the matter is when one walks past newsstands, when one switches

7 on the television, when one casually sees a newspaper within a

8 doctor's waiting room, these photographs are there and in a way

9 it is difficult to avoid.

10 Perhaps it affects the subconscious of this kind of

11 witness to put it in his memory bank, so to speak, so that when

12 that photospread is laid before him there is something there

13 that triggers a recollection. One has to be wary of this,

14 particularly when a gap of four years has existed between what

15 amounts to a fairly brief confrontation to a process of

16 identification.

17 Again, it is significant, we would submit, that in his

18 evidence he said that the name "Tadic" was being used, the

19 surname of the defendant. Quite why people would express

20 themselves in that way and in those circumstances is slightly

21 odd to imagine; quite why the name should be used at all is

22 difficult to conceive. But there we are. He said he did not

23 know this man, and claimed an identification many years later

24 through what, we would say, is a flawed process by them.

25 Moving from paragraph 4.1, because paragraph 12 which

26 is referred to within that section of the indictment exists as a

27 separate substantive count, and I will address the Court about

28 that at the end of the addresses relating to those substantive

1 counts on the indictment.

2 Therefore, at this stage, I turn now to paragraph 4.2

3 of the indictment which principally contains the allegations

4 that are contained within the substantive evidence, but at this

5 stage it is appropriate to look at the sightings of Dusko Tadic

6 on numerous occasions in the three main camps within opstina

7 Prijedor as the opening remarks of paragraph 4.2 of the

8 indictment set out.

9 I have made observations about sightings, but we say

10 it is significant here to consider the wide variety of uniforms

11 and, indeed, facial descriptions that have formed so much a

12 feature of this case. If an analysis of the evidence is

13 undertaken, in a period of some four days, 14th June to 18th

14 June, the wide variety of facial descriptions of the man alleged

15 to be Dusko Tadic is extraordinary. It ranges from having a

16 beard of 15 days to one month, as said by the witness Sakib

17 Sivac ----

18 THE PRESIDING JUDGE: Excuse me, Mr. Kay, do you have transcript

19 cites readily available as you are referring us to this

20 evidence?

21 MR. KAY: Your Honour, I do not have that on this particular material

22 here. I am sure it could be made available to the Court.

23 THE PRESIDING JUDGE: We have the transcripts and so we can locate

24 it.

25 MR. KAY: Yes. It ranges also on 14th June to an unkempt beard; the

26 16th June, 10 days's growth as described by Edin Mrkalj; a few

27 days growth on 17th June as described by Emir Beganovic; a beard

28 as described on 18th June by Elvir Grozdanic; also on 18th June,

1 Armin Mujcic, two days unshaven. The wide variety of facial

2 appearance in that short period of time and, indeed, spanning

3 throughout the whole history of these events from May to August

4 and even on to October 1992, we say, throws into this evidence

5 distinct reasons why the Court should be cautious and careful

6 about the alleged sightings of the accused.

7 Of course, people may make a mistake and describe

8 someone as being unshaven and having a beard, but the alarming

9 feature of 15 days to one month growth, to being unshaven to a

10 few days growth, shows such a variation that, in our submission,

11 this defendant is entitled to have this evidence considered with

12 great caution.

13 Uniforms are the same. Your Honour, Judge McDonald

14 referred yesterday to Professor Wagenaar's remarks on military

15 uniforms. We are not talking here about whether they are

16 huzzars or guards, Coldstream Guards. We are not talking here

17 about distinguishing between old army uniforms or new army

18 uniforms where people may have a picture of a soldier at the

19 back of their mind. We are talking here about clothing that

20 does not derive from any military stores department. We are

21 talking here about people being dressed in different clothing,

22 almost as similar to people wearing civilian clothes

23 differently. It is a wide variety of clothing.

24 We say that is significant for this defendant, because

25 it is out of that uniform category into clothing generally.

26 Again when one considers the wardrobe that he should have had

27 from May until even August, it is so different and so varied

28 even on the same day that there again is great need for caution

1 about the allegations concerning this defendant and the

2 reliability of the evidence concerned.

3 Again, just taking that period of 14th to 16th June,

4 on 14th June a new camouflage uniform with handcuffs on the belt

5 as described by Sakib Sivac; on 14th June camouflage uniform as

6 described by Draguna Jaskic. Zemka Sahbaz describes coffee and

7 pale or dark green and dark coffee with a hat like a shield with

8 a brim. Senija Elkasovic describes coffee and paler or greenish

9 and white coffee. Witness S, in mid June, a camo police top; on

10 16th June, Edin Mrkalj, a blue police jacket.

11 We have other occasions where he is described as

12 wearing a headband, a civilian suit that we discussed yesterday

13 that was like a camouflage uniform, with a white belt, without a

14 white belt, with sunglasses, with a cap with a kokarda, with a

15 giraffe jacket, in a black pilot's jacket and trousers and

16 headband, in June, as described by Dzemal Deomic, and blue

17 jeans and a dark blue t-shirt, as described by Hasiba

18 Harambasic.

19 This wide variety, we say, should cause this Court to

20 have caution about this evidence because the defence here is

21 that this defendant was not there at that time and it is the

22 defence of alibi. We ask the Court in their investigation of

23 these matters to bear these features very much in mind when one

24 looks at the accuracy of these allegations.

25 When one considers sightings in the camps, perhaps

26 Omarska is the best example to take, there are a number of brief

27 sightings, as I would put them, as described by Hamdija

28 Kahrimanovic, Sejad Jakupovic, Kemal Susic, Uzeir Besic, Husein

1 Hodzic, Nihad Haskic and Saud Hrnic. I have not included within

2 that the paragraph 6 witnesses. Then you have other witnesses

3 where there are circumstances about the identification that we

4 say should cause this Court to apply that caution we have asked.

5 The witness Dzemal Deomic being held in that garage

6 around the corner of the administration building in June 1992,

7 this was the witness who had the photograph put in front of him,

8 because he claimed he had seen Dusko Tadic arriving in a black

9 pilot's jacket with a headband on a motor bike. This witness

10 was convinced of this sighting.

11 It became clear in cross-examination that he was

12 actually using the photograph believing it was a photograph of

13 that particular time that he was there, and justifying this

14 sighting by reference to the van in the photograph that had been

15 taken in February 1996 and the puddle in the photograph,

16 justifying his memory by, "Oh, it had rained on that day that

17 I saw him", as though this was an image before this witness that

18 justified this occasion when that photograph was taken a long

19 while later, in February 1996, and not when he was there in June

20 1992.

21 It indicates to us the power of suggestibility of

22 witnesses who have been through this ghastly circumstance and

23 ghastly period within Omarska. It is tragic almost. It is

24 something that we have to bring to the Court's attention and

25 with respect to that poor victim, but it was there for all to

26 see that this was being justified in a way that was absolutely

27 impossible.

28 We have other sightings such as made also by this

1 witness in rooms of the White House where at one time there were

2 150 people in this small room at the back right-hand side of the

3 White House. He was in the far right corner, and in

4 circumstances which cannot have been of the easiest nor the best

5 claiming a sighting of Dusko Tadic.

6 In a way, many of the circumstances in which these

7 witnesses were held and the massive grouping of all these people

8 are something that the Court, we say, should have in mind in

9 relation to the accuracy of a number of those sightings.

10 There was the witness Kasim Mesic. He was there when

11 the man Kera who appeared, unfortunately, to have gone mad and

12 lost his senses and was shot by a guard on the pista when he

13 asked for more bread. He had been a witness who was stealing

14 glances sideways, lying down. We had cross-examination

15 concerning the flower tubs that boarded the pista on each side

16 and between which the men on that place were being held.

17 In those circumstances, his identification of the

18 defendant again four years later in June 1996 using the

19 procedure of the photospread, we say, should cause great concern

20 about the reliability of such evidence. It is a problem for the

21 Prosecution in producing evidence in that form with that degree

22 of delay before a witness is put through appropriate procedures.

23 Interestingly enough, the next witness who followed

24 Kasim Mesic was a man called Witness R and, for no apparent

25 reason, he told us that there was no problem with the flower

26 tubs. Quite why one witness following another should have had

27 that mind, we say perhaps is beyond coincidence and for some

28 reason he had been compelled to bring that to our attention.

1 Another sighting, which is connected to a beating,

2 comes through the witness of Mehmedalija Huskic. This is a

3 significant witness and one that we say gives great credence to

4 our submission of the way witnesses will, perhaps, allege

5 sightings against this kind of defendant before this Tribunal.

6 He was in the electrical workshop on 20th June 1992, two days

7 after the infamous events within the hangar. We know how many

8 people were in that electrical workshop, and many of them make

9 up the witnesses in relation to paragraph 6.

10 What he alleges on that day was that Dusko Tadic came

11 into that room, sat down in the room and started to beat

12 prisoners. One would have thought that all those other

13 witnesses relating to paragraph 6 or who have come before this

14 Court who were in the electrical workshop would have remembered

15 that, would have given the Court evidence about that, if it

16 happened.

17 Significantly on that day, Dusko Tadic was on duty at

18 the Orlovci checkpoint between 3.00 and 9 o'clock in the

19 evening, so from a 3 p.m. shift to a 9 p.m. shift during the

20 day. But there we have it. Here we have a witness who enters

21 the Court, gives this evidence, no doubt many would have felt,

22 "Well, that seems right, that has a flavour about it. After

23 all he has come here to make his complaint, and to give his

24 evidence and he can leave the Court room with that aura and

25 respect for a victim that one has". But it is not until you

26 piece together the whole of the case that you see the flaws in

27 this kind of evidence, and one is entitled to look at it with

28 criticism and caution when one bears in mind the actual context

1 in which the allegation takes place.

2 The electrical workshop by the hangar, Dusko Tadic

3 going into the room, sitting down, beating prisoners, not

4 concealing himself, being there, being seen, and we have other

5 witnesses from that place who gave evidence before this Court.

6 Edin Mrkalj who gave evidence of a beating on 16th

7 June ----

8 THE PRESIDING JUDGE: Excuse me, Mr. Kay.

9 MISS HOLLIS: Sorry to interrupt, your Honour, I have several

10 references for redactions.

11 THE PRESIDING JUDGE: We just handled two, I suppose, but four

12 different places?

13 MISS FEATHERSTONE: Perhaps can you do them for the record?

14 THE PRESIDING JUDGE: OK. Give us the cite to them.

15 MISS HOLLIS: For the record, your Honour, they will be 10.07.52,

16 that is one time, 10.09.08 as another and 10.09.20.

17 THE PRESIDING JUDGE: Excuse me, Mr. Kay. Mr. Mrkalj?

18 MR. KAY: A 16th June beating within the administration building of

19 Omarska. A witness whom Dusko Tadic knew as a police officer,

20 but for some reason asked him what his job was when he came

21 across him within the administration building before,

22 apparently, assaulting him. He conceded that Tadic looked

23 different on that day. It was something he had mentioned in a

24 statement, that his appearance had changed. Again, is this a

25 case (and it is for the Court to consider) of appearance of

26 people who might look familiar or seem familiar but are not the

27 same person within the context of how these four people were

28 kept prisoners, in fact, suggestion replacing fact and truth,

1 suggestion having a great power?

2 JUDGE STEPHEN: Mr. Kay, are you going to give us the names of the

3 other prisoners who were in the electrical workshop on 20th June

4 and did not speak of Tadic being there and beating prisoners,

5 because otherwise we will have to go through the entire

6 transcript and try to find it.

7 MR. KAY: Your Honour, I can do that at an appropriate time elsewhere

8 within the notes ----

9 JUDGE STEPHEN: Thank you.

10 MR. KAY: --- which I have now turned over!

11 At this stage I would like to make a point about the

12 so-called karate kick which the Prosecution have used as an

13 identifying feature. It seems to us that virtually every male

14 within opstina Prijedor undertook karate lessons. They all

15 seemed to have been on the courses and they all seem to know

16 about it. It may well be a feature of this society that that is

17 something that the young men undertake. But it is by no means a

18 rare occurrence for someone to have undertaken such lessons.

19 One considers other districts of the world and you think how

20 many people have had karate lessons within particular areas, it

21 seems to be very much a common feature of their society and what

22 young men undertook, perhaps even as part of their JNA

23 training.

24 In those circumstances, to give it a degree of

25 importance or identifying feature, it is by no means an

26 exclusive hallmark that could be applied. If Dusko Tadic was

27 the only karate exponent within the district, it would have far

28 greater significance than it, in fact, does.

1 THE PRESIDING JUDGE: Mr. Kay, can you help me with that? I do not

2 recall that line of testimony, that is, that taking karate was

3 something that young men typically did and perhaps even as a

4 part of their JNA training. If you can give me the names of

5 some witnesses or some clue as to how I can find it in the

6 transcript?

7 MR. KAY: Elvir Grozdanic went to karate classes, the karate classes

8 in Kozarac, many of whom as young men in their teens had passed

9 through the classes in Kozarac.

10 THE PRESIDING JUDGE: I recall that some witnesses testified that

11 they had taken lessons from Mr. Tadic.

12 MR. KAY: Yes.

13 THE PRESIDING JUDGE: But other than that, I do not remember. If you

14 can give us the citings, I would appreciate it.

15 MR. KAY: Yes. The mothers of some young men who said they took

16 their sons there for karate training. It is something that we

17 have noticed has been a thread throughout the case.

18 Hasiba Harambasic is another Omarska sighting that

19 deserves comment. This is a witness who said that she saw Dusko

20 Tadic in mid July and certainly he was on duty at Orlovci during

21 that time, so there is no way that we can tie down to see if

22 there is a contradiction between the sighting and where on the

23 face of it he was on duty. Significantly, an application has

24 been made by the Prosecution in the form of a motion concerning

25 an apparent inconsistency by this witness in relation to her

26 testimony of not knowing Dusko Tadic but saying to a journalist

27 that she did know -- that she did not know him.

28 So there we have it: Brief sightings, sightings in

1 difficult circumstances, a whole range of them, some with

2 apparent flaws, and yet it is easy to say until one looks at the

3 whole panoply of the case.

4 There is also Trnopolje, a number of single sightings;

5 one witness venturing some 20 plus sightings from the period of

6 September 29th to late November 1992. She was a witness, Advija

7 Campara, who was in the same building as the Jakupovics, Nasiha

8 and Adil, who knew Dusko Tadic so well and whom he visited on

9 one occasion at the camp in Trnopolje.

10 JUDGE VOHRAH: Mr. Kay, can I just interrupt you whilst you are

11 dealing with Trnopolje camp?

12 MR. KAY: Yes.

13 JUDGE VOHRAH: You referred us to the sightings in Omarska but,

14 according to my reckoning, there were actually 25 sightings.

15 MR. KAY: That is right.

16 JUDGE VOHRAH: But you have only referred to some of them. What

17 about the others?

18 MR. KAY: I was taking economically if I could, your Honour, because

19 I made the general point about circumstances which I did not

20 want to repeat on each particular witness. I was putting the

21 point before the Court and, in those circumstances, having made

22 the submission, hoping that the Court would apply those

23 observations that we have to the evidence.

24 JUDGE VOHRAH: Thank you.

25 MR. KAY: I could certainly go through each of them, and the material

26 has been prepared, but in a way it becomes repetitive because of

27 the circumstances and the briefness. I have highlighted there a

28 few with particular difficulties, that have problems, we say,

1 within the genuineness of the evidence.

2 THE PRESIDING JUDGE: Are you saying, Mr. Kay, that these witnesses

3 lied, that they did not see Mr. Tadic or are you saying that

4 they do not remember what he wore, because I am trying to

5 remember what I wore yesterday. I do -- I remember part of it.

6 It is difficult, is it not? So how should we look at this?

7 MR. KAY: It is difficult, your Honour, and in a way it is a

8 combination of things that we would say, there is mistake,

9 error, genuine error. I would say some are made up. I would

10 say in relation to particularly one of the witnesses who came

11 here who had claimed a number of sightings and then withdrew

12 them, the Prosecution said to him, to their own witness, "You

13 have made allegations of seeing Dusko Tadic on more than one

14 occasion and you now withdraw those?" That was a witness at

15 Keraterm, Sefik Kesic, and he stuck by one identification. He

16 said that he was less than sure about the others. He stuck by

17 one identification alleging a beating that took place at night,

18 with the lights of a vehicle down at the gate by Keraterm

19 shining behind the man, beating him and, in those circumstances,

20 stuck by an identification.

21 Perhaps claims that have been made, there has been a

22 need to stick by them having said something, having claimed to

23 be part of what happened and to have seen the defendant.

24 Perhaps there is a need to justify what one has said to a

25 certain degree, but not to the extent that is a great deal.

26 When I get to the evidence of Mehmed Alic, I will make

27 that particular point, we hope, forcefully. So, it is a

28 combination of things, your Honour, and we believe, for

1 instance, in that example I gave of Mehmedalija Huskic that that

2 is a classic example that the Court should be wary about.

3 THE PRESIDING JUDGE: Which one was that again?

4 MR. KAY: That is the electrical workshop on 20th June, a couple of

5 days ----

6 THE PRESIDING JUDGE: In Omarska?

7 MR. KAY: Yes. So it is a combination of matters that we say. It is

8 easy for these allegations to be made. Trnopolje itself is now

9 a difficult subject before the Court, because there is no

10 evidence of Dusko Tadic being in control of that camp or being

11 responsible for its running, as seemed to have been a feature of

12 the Prosecution case until the matters concerning Witness L were

13 exposed.

14 There is a witness who claims 20 plus sightings within

15 that same building that the Jakupovics are, who know him well

16 but only claim to have seen him once. Why she so specially

17 would have seen him so many more times than anyone else, we say,

18 is open to suspicion. A number of dotted around sightings of

19 Trnopolje, some of which the Defence, as the Court knows,

20 concedes, some five visits to the camp or just outside the camp

21 during the period between June to October or November 1992.

22 But, in the context of this case now, it is something

23 that we suggest has no great deal of significance in view of the

24 issues that the Court is trying and the allegations within the

25 indictment. Even if those sightings are right, where at the end

26 of the day does it leave the Court in terms of the indictment

27 and allegations at Trnopolje against this defendant, killings

28 and rapes that we were originally concerned with having gone?

1 JUDGE STEPHEN: Mr. Kay, does that mean that no other witnesses talk

2 of particular acts of violence by the accused at Trnopolje?

3 MR. KAY: That is right. That is right, your Honour.

4 JUDGE STEPHEN: But I suppose it would be said by the Prosecution to

5 the extent that he was at Trnopolje and there were acts of

6 violence committed by others, that he was in some way a

7 participant?

8 MR. KAY: That is insufficient, we say, because someone else commits

9 something on another day and no nexus has been made to this

10 defendant, we say, falls woefully short of evidence that the

11 Court should accept as active participation, participation in

12 any form, of any events that took part in Trnopolje.

13 Originally, we were concerned with those killings and rapes and

14 that is why it was such an important part, but there is no other

15 evidence of rapes that remain with this case and no other

16 evidence of killings at Trnopolje that remain in this case. But

17 we have these sporadic sightings alleged by witnesses. To be

18 frank about it, we say, well, where does that really take the

19 Court in relation to the allegations?

20 THE PRESIDING JUDGE: Mr. Kay, does it go to veracity, credibility?

21 Witness -- I do not remember his name; I can see him in my mind;

22 he became the Secretary of SDS after Mr. Tadic, I believe, in

23 Kozarac, Secretary of the Local Commune ---

24 MR. KAY: Yes.

25 THE PRESIDING JUDGE: --- he had come from Velika Kladusa.

26 MR. KAY: Dusan ----

27 THE PRESIDING JUDGE: He was a tall, thin, nice looking man.

28 MR. KAY: --- yes, Dusan Vajgic.

1 THE PRESIDING JUDGE: He testified, I thought -- of course, I do not

2 remember his name but I do remember the testimony -- that the

3 commune in Kozarac had no responsibility for Trnopolje, that

4 Trnopolje was a separate commune.

5 MR. KAY: Yes.

6 THE PRESIDING JUDGE: Witness Y, also from Velika Kladusa and then of

7 course moving to Kozarac, said that Mr. Tadic had not gone to

8 Trnopolje, that they had no business, that is, those policemen

9 in Kozarac had no responsibility over Trnopolje and no business

10 being in Trnopolje. Another witness also I think said that.

11 Of course, now Mr. Tadic has indicated in his alibi

12 notice that he had gone to Trnopolje I think once, and then I do

13 not recall the number of times that he told the German police

14 that he had gone to Trnopolje. Then, of course, he testified,

15 I think, five or six times going to Trnopolje. Then

16 Mrs. Campara then testified she sees him approximately 20

17 times.

18 Does it go to veracity, credibility, perhaps to all of

19 those witnesses?

20 MR. KAY: Yes, in his alibi notice Dusko Tadic has two occasions.

21 There is an issue here of where the camp begins and ends which

22 is something we had as a problem within the evidence. In

23 evidence he gave five occasions when he was at what would be

24 broadly called the camp, be it in the lane outside or by the

25 gate. To the German police five times was the occasion that he

26 gave.

27 The evidence of the witness Campara, we say, is so

28 much extraordinarily out on a limb in terms of the numbers when

1 you would have expected others to have seen him just as much as

2 her. For that reason, I particularly cite the Jakupovic's who

3 knew him and were there longer than she; that her every other

4 day I think she was eventually increasing it to, which would put

5 the figure at some 30 plus sightings, we say, is just something

6 being said by a witness perhaps not with the best of motives or

7 intentions in relation to this defendant.

8 But the role of Dusko Tadic at this time in relation

9 to the Local Commune in Kozarac which was supported by those

10 witnesses, I suppose they only go so far as their own

11 knowledge. They were not with him all the time, so when they

12 say he did not visit Trnopolje that is as far as they can say.

13 They cannot say any more than that. But they had great dealings

14 with him during this period of time and were aware of his

15 responsibilities and his jobs, and where those would have taken

16 him. But certainly, as far as the defendant is concerned, he

17 concedes going to Trnopolje.

18 The interesting feature is that when he goes with the

19 old man, Jovo Samardzija, he does not appear to go there with

20 any kind of authority or any kind of status to help that man

21 find his sister. He is just down there. He is not able to

22 order people to go looking for Samardija's sister or cause doors

23 to open or wheels to turn. He is just down there and waiting.

24 They are talking to people whom they obviously knew within the

25 camp. In our submission, that is an important feature of the

26 Defence case that the Court will have to weigh in opposition to

27 the allegations concerning Trnopolje.

28 Moving still through 4.3 of the indictment, I have

1 referred to the beatings in Keraterm between 25th May and

2 8th August of which two witnesses gave testimony, Sefik Kesic

3 and Hakija Elezovic. This was the witness I have already

4 referred to your Honour Judge Vohrah about as being an example

5 that a witness gives an account and then withdraws a number of

6 allegations, but is sticking by one in circumstances ----

7 JUDGE STEPHEN: Mr. Kay, I thought you were still on 4.2. You have

8 been on 4.3 for some time, have you?

9 MR. KAY: Yes.

10 JUDGE STEPHEN: They seem to ----

11 MR. KAY: Your Honour, I am still on 4.2. Thank you. I must say

12 actually -- I only say this in my own defence -- there are a

13 number of repetitions within these paragraphs of the indictment

14 that can easily cause a mistake.

15 Yes, looking at 4.2 still, and I have made the point

16 about the beatings within Keraterm being only two occasions and

17 there are circumstances to doubt the accuracy of the Sefik Kesic

18 allegation. Hakija Elezovic is that important witness who gives

19 evidence in relation to count 8, charge 8, paragraph 8, of the

20 indictment, who claims to have been present when his son was

21 killed.

22 It does seem peculiar that at his interview in

23 Keraterm he names Dusko Tadic for some reason being present as a

24 bodyguard. Quite why and for what reason one does not know,

25 unless it is perhaps to pin this defendant. It may come down to

26 that, putting it bluntly, and your Honour, Judge McDonald, has

27 asked me about the motives or reasons why stories should be

28 given. Quite why he should be there if he is doing these other

1 things in the area as an attendant to the interrogator at this

2 man's interview, one wonders. It does not seem to be that he

3 was particularly important in any form or to any degree, if the

4 profile as presented by the Prosecution of Dusko Tadic is right,

5 to waste his time sitting in on the interview of this man. But

6 there we have it. It was an allegation made, an allegation

7 easily sold, perhaps, but one has to wonder about buying it.

8 Moving through ----

9 JUDGE STEPHEN: What date was that again?

10 MR. KAY: It is July.

11 JUDGE STEPHEN: 27th?

12 MR. KAY: 27th July. I think it is just before because he went to

13 Keraterm first and then Omarska.

14 THE PRESIDING JUDGE: I am sorry, I thought you were talking about

15 Keraterm.

16 MR. KAY: Yes.

17 THE PRESIDING JUDGE: I am sorry.

18 MR. KAY: It is mid July, I think about 20th July, as I remember.

19 JUDGE STEPHEN: Thank you.

20 MR. KAY: Still on 4.2, we make this point within the text of the

21 indictment, that there is no evidence of looting of belongings

22 of detainees in Keraterm between 25th May and 8th August 1992.

23 I have pointed out to the Court the four witnesses who give

24 evidence concerning Dusko Tadic's presence at Keraterm. There

25 is no evidence of looting, extorting, taking belongings from

26 those detainees.

27 The Court will have to consider whether the single

28 occasion outlined by Sefik Kesic when he was part of a group of

1 10 men lined up, for the purposes of this case and this kind of

2 trial, would also come within a category of mass beatings of

3 detainees in room 2 between that same period. Kesic claims to

4 have been part of 10 prisoners at night time with the lights of

5 the car behind them who were part of a group for some reason

6 individually beaten by Dusko Tadic, one after another, for no

7 apparent purpose or reason. Nothing was sought to be obtained.

8 They were just taken from the room, apparently, if this witness

9 is to be believed, and this man alone committed these acts, the

10 only man named. We say the reason why he is the only man named

11 is he was the only man, perhaps, at a certain time against whom

12 allegations were being made and who was in captivity. But the

13 Court will have to consider whether that qualifies for a war

14 crimes trial as evidence of mass beating.

15 I have now concluded 4.2, and move to 4.3 of the

16 indictment and will be able to proceed more rapidly through

17 these allegations, because in part they have been dealt with by

18 my submissions on 4.1. But the transfer to Trnopolje camp of

19 non-Serbs in the Kozarac area between the dates of 25th May and

20 31st December, this is largely the evidence of Nasiha Klipic and

21 Mehmed Alic, Zikina's and Limenka's on 26th and 27th May.

22 Again we say there is no evidence of Dusko Tadic being

23 responsible for the unlawful confinement of prisoners within the

24 camp. That would have held together if Witness L's allegations

25 had been pursued with, and perhaps it is a feature that I must

26 stress here because other than he who described him at one stage

27 as having authority within the camp, that does not seem to be

28 anything that has come through from the material of the

1 witnesses that we have heard.

2 I have to say a few words about Witness L here because

3 when your Honour, Judge McDonald, asked me about the reason for

4 making allegations, perhaps we have it in a microcosm in

5 relation to this witness who came into the Court, made these

6 allegations. At that stage, perhaps, people left the courtroom

7 believing him. Certainly the Prosecution would have believed

8 him, otherwise they would not have called him. I am not going

9 to ask anyone to put their hands up to confess whether they

10 believed him and found him a credible or acceptable witness, but

11 one must bear in mind that the power of giving evidence in a

12 Court such as this and speaking, perhaps, about horrific acts,

13 carries with it a specially resonant message and often the more

14 graphic -- we are all human beings -- we are often sympathetic

15 and receptive to such material and find ourselves in a position

16 more easily to believe, but we know because we went through this

17 process with great difficulty that he was exposed as a liar.

18 But that was possible in a way because that was within

19 our province, within our territory. We could investigate in the

20 area of Kozarac. We could get a form of co-operation. A lot of

21 it came out of chance and luck, but that was something that we

22 were able to get into and step by step and piece by piece put

23 this material before the Court. At the end of it, in our

24 submission, the Prosecution very honourably and quite rightly

25 took a pragmatic course in relation to those allegations.

26 But above all this case we say there should be almost

27 a sticker put up: "Don't forget Witness L, don't forget what

28 happened there". It serves as a reminder to us all and a

1 graphic illustration of what can happen and how easy it can be

2 to make allegations such as that and they, unfortunately, not be

3 the truth.

4 I will move now to 4.4 of the indictment. As I have

5 said, there is a great deal of repetition within count 1. We

6 have an example of that here with the participation in the

7 seizure and selection of individuals for detention in the camps

8 and transportation of Muslims and Croats who had been seized to

9 the camps for detention.

10 During the time he was engaged in this seizure,

11 selection and transfer of non-Serbs, Dusko Tadic was aware that

12 they would be deported. The principal witnesses here are Nasiha

13 Klipic, Mehmed Alic, whom I have dealt with in relation to the

14 26th and 27th May, and then we have the Sivci and Jaskici

15 collection of witnesses for 14th June 1992 that make up

16 paragraph 12 of the indictment. For that purpose, I will deal

17 with this evidence now so that the Court can have perhaps the

18 Omarska allegations dealt with as a whole and will conclude my

19 submissions before the Bench.

20 Paragraph 12 of the indictment that fits into this

21 section of the count 1 persecution count is 14th June, and

22 starts in Sivci as the population, the male population, is

23 rounded up. We had a video showing us the extent of the village

24 of Sivci, a long drawn out village with the Mekteb, with the

25 various farms, houses and the courtyard where a lot of the men

26 were collected, and nearby on the other side of the road what is

27 a stream or a brook flowing down the road and where there were

28 buses that the men were put on.

1 The one witness in relation to this matter was a man

2 called Sakib Sivac and he gave evidence that the population was

3 rounded up between 1 o'clock in the afternoon and 3 o'clock in

4 the afternoon. It must have been quite an operation as there

5 were quite a few hundred males involved. The Court will

6 remember evidence of the men moving down the street, being made

7 to go down on the ground, get up, run, go down on the ground,

8 get up, run -- obviously done as some kind of control, command,

9 over these people to exert a form of discipline.

10 Then the men were put in the buses that had arrived.

11 This particular witness was on the last bus, and he got in

12 through the rear doors and there claimed to have seen Dusko

13 Tadic and Dragolje Cavic. He said he looked into the eyes of

14 the man he knew as Dusko Tadic and claimed to have recognised

15 him wearing a new camouflage uniform without a cap, a rifle with

16 a folding butt which was something that he noticed, handcuffs on

17 the belt and a beard of 15 days to one month's growth.

18 The conclusion of this would have been around

19 3 o'clock, as he told the Court. He did not have access to any

20 sort of time piece, and that is his best estimate of the time.

21 Again we put this before the Court. If this man Dusko

22 Tadic was the man who was single-handedly running the cleansing

23 of Kozarac, if he was in positions of control and authority,

24 that the profile the Prosecution have presented to us is right,

25 it seems a bit peculiar that he is performing some menial,

26 unimportant role in relation to this operation, guarding the

27 back doors of the bus and not giving the orders, not telling

28 people what to do. It does not fit into that profile they have

1 presented.

2 But again this is one of those circumstances of a

3 recognition that is very hard for the Defence to get

4 underneath. But we also have side by side with these

5 allegations this 3 o'clock at Jaskici, the rounding up of the

6 male population within that hamlet nearby. We say there seems

7 to be an overlap of time here. 3 o'clock is, apparently, a

8 reliable time as one of the witnesses, Sena Jaskic, said she

9 recollected the news coming on the radio and that is how she was

10 able to pin point it. From the events that took place, that

11 seems to have been the first house that was entered by the

12 soldiers and where it was alleged a man was taken out and moved

13 up the lane.

14 Is Dusko Tadic in Sivci or Jaskici? Bear in mind

15 this. Those women who gave evidence described him being with a

16 group of soldiers, many of whom they described as being in

17 black, dressed up in black clothes. That may be a form of dress

18 that is particularly easy to remember.

19 JUDGE STEPHEN: But there is no definite time at which Sakib Sivac

20 says that he was in the first of the two villages.

21 MR. KAY: No.

22 JUDGE STEPHEN: So why do you say that there is a surprising

23 overlap?

24 MR. KAY: I do not think I used the word "surprising". There is an

25 overlap. I may have used the word "surprising".

26 JUDGE STEPHEN: It surprised me that you said it.

27 MR. KAY: Yes. There could well be here, is this yet another case of

28 multiple sightings of Dusko Tadic at the same time as we showed

1 in Kozarac for the morning of 26th May?

2 JUDGE STEPHEN: Because they are only 10 minutes apart walking, are

3 they not?

4 MR. KAY: Yes. When I throw in the other descriptions of that day,

5 this is why we say it comes clear, not both these places can be

6 right. Who knew him the better? On the Prosecution case, Sakib

7 Sivac or the ladies confronted with this extremely distressing

8 piece of history, because they describe the soldiers being in

9 black with Dusko Tadic, and that was not a feature of the Sivci

10 allegations.

11 So, looking at the whole of this, somewhere another

12 unit has come along of which he is suddenly now in control,

13 having previously been what amounts to an unimportant role as

14 guarding the back of the bus, quite why are there these two

15 different roles? They do not support that profile that we have

16 put before the Court as described by the Prosecution.

17 We have identification problems here of these

18 witnesses from Jaskici of, we would say, a serious nature.

19 Draguna Jaskic, who is the first recognition witness that gave

20 evidence, and the photospread and saying she did not recognise

21 anyone at the time. But we have the report of the investigator

22 who only undertook one of these particular procedures saying

23 that her eyes dilated, there was a sharp intake of breath, and

24 much later her saying that she had, in fact, identified Dusko

25 Tadic within that bundle of photos although, on the face of it,

26 at the time said, no. That would certainly fail one of

27 Professor Wagenaar's tests and, as he said, would not be a valid

28 identification.

1 Subha Mujcic is another witness who was the second to

2 give the recognition evidence, again describing soldiers in

3 black, two wearing masks, and giving the broadly same

4 description of a green camouflage uniform. But of all these

5 witnesses the one who had the longest period for identification

6 was the witness Zemka Sahbaz who Miss Hollis described yesterday

7 identifying while she was at the house, and then also looking up

8 the lane to see what was happening and then eventually under

9 fear going back into her house.

10 She describes a blond boy with a stick beating the men

11 taken prisoner. The previous witness had described Dusko Tadic,

12 Draguna Jaskic had described Dusko Tadic, as having a stick or a

13 pole and beating the men. Again if Sakib Sivac is right, that

14 did not appear to be something that he had with him when he was

15 seen in Sivci during the loading on of the men from Sivci on to

16 the buses. So where did this come from? How did that suddenly

17 appear with him?

18 That witness, Zemka Sahbaz, gives a description of a

19 uniform that varied in colour. The Court will remember the

20 evidence about this varying from blue, coffee and green, but the

21 great point (and a point that she was trying to evade under

22 cross-examination because she knew that she had said it before)

23 was that the hat as being worn by Dusko Tadic had a wide brim.

24 So where did he acquire that? He did not have a hat on in

25 Sivci. But this witness who saw him the longest, apparently,

26 said that he was wearing a hat with a wide brim.

27 Something such as that, a distinguishing feature,

28 throws, we say, this evidence into turmoil and causes us again

1 to question whether the unfortunate events that happened to

2 these people require a victim of a different sort now and that

3 is the man on trial.

4 The photospread that was put before her, Zemka Sahbaz,

5 who did not know Dusko Tadic, again has a serious flaw. It was

6 31st May 1996, almost four years later and after this trial had

7 started, but she describes the man with the stick or pole as

8 being a man with blond hair, and she described the man moving

9 the soldiers up the lane. The Prosecution have helpfully pieced

10 together those events of the afternoon with that helpful board

11 with the houses on and the progress up the road and where

12 everyone lived. It was one man who was in charge of these

13 soldiers moving the men up the road, the one said to be Dusko

14 Tadic, and this witness said wearing a wide hat, a hat with a

15 wide brim.

16 Further up the lane, we have a sighting by Senija

17 Elkasovic as she looked out of the window in what were fairly

18 perilous and risky circumstances, and she said seeing Dusko

19 Tadic in her courtyard and then moving across the yard. Again

20 there were colour changes in the uniforms.

21 So there we have it with those events on that

22 particular day. We ask this Court to have great caution about

23 the evidence because of this variance of the testimonies of the

24 witnesses, and not everyone can be right.

25 THE PRESIDING JUDGE: Mr. Kay, I will ask this question of the

26 Prosecution and I suppose it is just my thinking constantly

27 about different concerns, including the cause of the conflict,

28 now we are talking about identification. For the Prosecution

1 witnesses and the Defence witnesses, I do not recall a witness

2 ever saying, "I do not recall what he was wearing", and that

3 really surprised me. As I went through I heard -- I do not know

4 whether it was cultural thing -- witnesses from the Prosecution,

5 I heard witnesses from the Defence, describing in their mind

6 with exactitude what people were wearing. I found that rather

7 amazing, based on my prior experience. I just have not seen

8 it.

9 Maybe you can help me. You have been to the former

10 Yugoslavia. Is this something that people there attempt to make

11 an estimate of what people were wearing, where they were and

12 whether they had a hat on? Maybe I am just used to hearing

13 people say over and over, "I do not recall, I do not recall".

14 MR. KAY: Yes.

15 THE PRESIDING JUDGE: So maybe we have moved ahead in this Tribunal,

16 but everyone has an opinion. Help me.

17 MR. KAY: The majority of witnesses did, in fact, give descriptions

18 of clothing.

19 THE PRESIDING JUDGE: On both sides?

20 MR. KAY: Yes. Some witnesses, in fact, did say they could not

21 remember and there were those and did not attempt to give

22 dates. But ----

23 THE PRESIDING JUDGE: Yes, I was really talking more about

24 description.

25 MR. KAY: Yes. I am seeking here not to make distinctions between

26 olive green, coffee, pale and whatever. Of course, we lay those

27 before the Court for the Court's consideration, but I am seeking

28 here to point out single distinguishing features that, perhaps,

1 transcend clothing, that are part of the sight and the picture

2 of the man going up the lane. This is where we would say an

3 article of distinctive clothing that is not a description of

4 clothes, but what was being worn to that degree is so far out of

5 the norm and at variance with what one would generally allow for

6 margins of error that the Court should bear that in mind as,

7 perhaps, not being a matter that could be more easily moved over

8 when one confuses browns and olives and greens, which one can

9 understand mistakes like that being made. But you get such

10 significant descriptions of items of clothing that are outside

11 that broad brush of error, margins of error, that one would

12 permit.

13 For that purpose, we certainly draw those matters to

14 the Court's attention. Things like a headband or not a headband

15 is quite significant. Seeing a man with a headband is something

16 one, perhaps, remarks and notices. You do not see everyone

17 wearing headbands. I suppose it depends what district you live

18 in, but most people do not see in their areas many headbands and

19 it is a cause for observation.

20 THE PRESIDING JUDGE: These witnesses were, I think, all related or

21 certainly a goodly number of them were, all sisters,

22 sisters-in-law, widows, so when I heard them -- I will just tell

23 you what goes through my mind when I heard them coming in, I

24 said, "Well, they are all related. Let me listen very carefully

25 to this" because that is one of the things when I was talking to

26 Mr. Wladimiroff about cross-examination and what you show by

27 it.

28 MR. KAY: Yes.

1 THE PRESIDING JUDGE: Then, though, when I hear the different

2 descriptions, I say, "Well, my goodness, if they wanted to get

3 together, why did they not do a better job of all just reciting

4 in rote what he looked like?"

5 MR. KAY: Yes, if they all sat down at a meeting.

6 THE PRESIDING JUDGE: They all had the opportunity if they wanted to

7 make it up. I was listening to their testimony with caution and

8 understanding that they were all related, because I feel it is

9 something that I should do. But now I hear, you know, if they

10 really wanted to make it up, they would have.

11 MR. KAY: They may have been sent to the far corners of the globe and

12 be in different countries for all we know, and may be one or two

13 have spoken in terms of consistency. I asked Draguna Jaskic

14 over her non-identification or identification, as the

15 Prosecution would say, whether she had spoken to anyone else.

16 There is that tendency. One remark may influence another. But

17 it is impossible for us, given our access to these people and

18 the circumstances of the case, which is why -- I hope I am not

19 boring the Court with repeating this caution part of my

20 submission, because we are not in control of where they are. In

21 an ordinary jurisdiction -- let me just take London -- you

22 understand the area, you are able to go around the are, you are

23 able to perhaps piece together your defence and investigate

24 rather more satisfactorily. Because of the events that have

25 happened here, that is not possible. These people, as we know,

26 are flung around the globe. They are no longer still at the

27 site from which the allegations arise. So, the usual processes

28 that are possible for Prosecution and Defence to consider

1 matters such as that, your Honour, are not available. That is

2 why this trial is a very unusual trial, and we say great caution

3 has to be applied by your Lordships in looking at this evidence.

4 THE PRESIDING JUDGE: You are not boring me and maybe I am just

5 asking you to do my job for me, but I am just telling you what

6 my thought processes were. Of course, when you hear persons

7 testify who are related, then you have to keep in mind possible

8 bias. Then when I hear the discrepancies, I do not know whether

9 that helps or hurts, but I understand your position that there

10 are discrepancies in terms of their description of what

11 Mr. Tadic was wearing.

12 MR. KAY: Yes. One misidentification, of course, can cause a chain

13 reaction if reported and relied upon by others.

14 JUDGE STEPHEN: Mr. Kay, can I ask you this, and you may not know the

15 answer, but the curious uniform, black t-shirts, black trousers

16 and sinister gloves with the fingers protruding, does any of

17 that match any description that we have had of particular

18 paramilitary units?

19 MR. KAY: None are called to mind, but I think within (and going back

20 a long way now) the policy section of the Prosecution case there

21 may well have been a reference to groups who wear ----

22 JUDGE STEPHEN: Who wore black.

23 MR. KAY: --- that kind of uniform. Others may be better able to

24 advise the Court about that, but it may well be they were

25 connected with many of the Arkan groups or other names.

26 JUDGE STEPHEN: That is what I was wondering, whether you had any

27 knowledge of that. Thank you.

28 THE PRESIDING JUDGE: Did the witness testify it was in Prijedor?

1 Did he testify about people coming in dressed like that? Do you

2 recall? We will check.

3 JUDGE STEPHEN: We also had, did we not, some misunderstanding months

4 ago about wearing a mask ----

5 MR. KAY: Yes.

6 JUDGE STEPHEN: --- and that was simply a misunderstanding in

7 translation for camouflage.

8 MR. KAY: Yes. I accept that.

9 JUDGE STEPHEN: The mask that one witness speaks of the people in

10 Jaskici wearing, that is not a misunderstanding?

11 MR. KAY: That is a mask mask and not the camouflage mask. Certainly

12 we accept that there is this misunderstanding capable within the

13 language because of the phrases used. It is something that we

14 would not seek to put before the Court as being of importance.

15 Moving now to paragraph 4.5 of the indictment, which

16 is a series of allegations, first of all, expressing allegations

17 about the Serb forces, but most particularly concerning the

18 period between 23rd May and 31st August 1992 Dusko Tadic was

19 aware of the widespread nature of the plunder and destruction of

20 personal and real property for non-Serbs and was physically

21 involved and participated in that plunder and destruction,

22 including the plunder of homes in Kozarac and the looting of

23 valuables from non-Serbs as they were seized and upon their

24 arrival at the camps and detention centres.

25 This section of the indictment, we submit, needs

26 particular care in looking at by the Court. There is evidence

27 by the witness Minerva Kulasic, a rebuttal witness, page

28 6327, of the plunder of personal property. This concerns the

1 home that had been previously occupied by the Chief of Police

2 and her mother, sister and she are ejected from it. There is

3 evidence there before the Court of the plunder of that property,

4 if that witness is right.

5 The Defence case was slightly different, admitting the

6 taking of the property but saying that the goods were returned.

7 But there is no evidence of the physical involvement of Dusko

8 Tadic in the destruction of property of non-Serbs. There has

9 been no evidence about that at all before the Court.

10 There has also been no evidence of the physical

11 involvement in the plunder and destruction of houses in Kozarac

12 by Dusko Tadic. The nearest one could get to it, I suppose,

13 would be the firing of the flares on 24th May to enable the

14 shelling of the hospital. But the indictment specifically

15 says "physical involvement by him", so the allegation that we

16 say is being made to the Court is that he was destroying homes

17 by blowing them up or plundering them. I had to remind myself

18 what the word "plunder" meant not being a word that one comes

19 across regularly in terms of criminal law these days --

20 I suppose many centuries ago you did -- and its definition is

21 robbery, to rob.

22 There was also no evidence before the Court in

23 relation to this section of the indictment of the physical

24 involvement of Dusko Tadic in looting valuables from non-Serbs

25 that were seized upon arrival at Omarska, Keraterm and

26 Trnopolje. There has simply been no evidence about that. We

27 take issue with one of the legal concepts within this section of

28 the indictment concerning real property which, we say, cannot be

1 plundered. You cannot steal land. You can steal cars, you can

2 steal rings, wallets. You cannot take the land away with you.

3 There are other offences which take into account obtaining real

4 property by deception or other means, but within the

5 jurisdictions that we are familiar with, this concept of

6 plundering land, robbing a plot of land, is not something that

7 we say is possible and the Court should consider that as a legal

8 issue.

9 THE PRESIDING JUDGE: Just two questions. Was the hospital actually

10 shelled? I think a shell fell but nearby. Did it hit?

11 MR. KAY: I think there was later evidence that said it was hit.

12 Quite whether it was as a result of the flares, I do not know,

13 because the witness himself would not have been going back to

14 the hospital then as he was on his way down -- or did he

15 return? I am slightly lost there, your Honour, but, yes, your

16 Honour is right to make that observation.

17 THE PRESIDING JUDGE: My second question is regarding the plundering

18 of real property: would that not include the taking of homes

19 that belong to Muslims?

20 MR. KAY: It is a concept of stealing land, whether you can do that

21 in ----

22 THE PRESIDING JUDGE: I mean a home, a real property, a home affixed

23 to the land?

24 MR. KAY: Yes, that is real property.

25 THE PRESIDING JUDGE: Plundering would not include, then, the taking

26 of homes?

27 MR. KAY: No.

28 JUDGE STEPHEN: Is that so? Do you not constantly, well, in reading

1 histories, hear of the plundering of a city, and that means

2 going into the city and taking things from homes.

3 MR. KAY: Looting, yes.

4 JUDGE STEPHEN: Yes, plundering.

5 MR. KAY: Robbing, but the taking of the town hall ----

6 JUDGE STEPHEN: No, no, but going into the town hall and taking the

7 mirrors and the furniture ----

8 MR. KAY: Possible

9 JUDGE STEPHEN: --- is plundering.

10 MR. KAY: But you cannot plunder real property.

11 JUDGE STEPHEN: Yes, that is what you are doing. You are going into

12 the town hall and plundering.

13 MR. KAY: No, real property being realty, being land.

14 JUDGE STEPHEN: All the fixtures on the land.

15 MR. KAY: That is personalty, that is goods person ----

16 JUDGE STEPHEN: The building is personalty.

17 MR. KAY: The building is realty.

18 JUDGE STEPHEN: Yes, and you go into the realty and plunder it by

19 taking things from it -- no?

20 MR. KAY: But you take out the personalty and personalty is ----

21 JUDGE STEPHEN: I think this is -- yes, well.

22 MR. KAY: I must say I left my chancery law days some time ago.

23 I hope that is not being repeated on air! But, your Honour, I

24 have finished this particular section now.

25 JUDGE STEPHEN: Yes.

26 THE PRESIDING JUDGE: We will stand in recess for 20 minutes.

27 11.30 a.m.

28 (The Court adjourned for a short time)

1 11.50 a.m.

2 THE PRESIDING JUDGE: Mr. Kay, you may continue.

3 MR. KAY: Thank you, your Honour. Now I move to paragraph 6 of the

4 indictment and commence submissions on the remaining substantive

5 counts that deal with crimes within Omarska. Just while I am

6 here a matter your Honour Judge Stephen raised concerning other

7 witnesses who had been downstairs in the electrical workshop at

8 this period of time who would be able to provide evidence

9 concerning other matters that could have occurred in that room

10 concerning Dusko Tadic, Armin Kenjar, Muharem Besic, Elvir

11 Grozdanic, Emsud Velic, and Ferid Mujcic, all of whom are within

12 the paragraph 6 allegations concerning Omarska.

13 Many witnesses have claimed to know what happened on

14 that afternoon which more probably than not was 18th June 1992.

15 Some 14 witnesses claimed to have seen and/or heard some part of

16 the events that occurred on that fateful day. All of them

17 relate in graphic detail the horror that was experienced at the

18 time in the heart of what really was that spiritual darkness

19 within that hangar of the building in Omarska.

20 One of the problems as we see it facing this Court is

21 that this allegation has achieved such notoriety, has been

22 talked about so widely, perhaps relived so many times, that

23 perhaps the truth has become obscured and so that mistakes or

24 false statements that have been made are given the status of

25 truth that many witnesses have been willing to lend their names

26 to in support.

27 When witness G returned from the hangar -- and many

28 witnesses have told the Court about the mental instability of

1 that young man -- and he returned to the prisoners' area covered

2 in oil and in a highly emotional state, perhaps he hit a spark

3 that fired a rumour that swept through the rooms elsewhere

4 within the hangar. The rumour was that it was Dusko Tadic that

5 afternoon who was the man who caused him to commit an act of

6 unimaginable savagery on a fellow prisoner, and that was the

7 biting off of the testicle of a living man and he may well have

8 claimed far more besides.

9 The rumour in that camp almost spread like a forest

10 fire and all who heard them were, no doubt, convinced of the

11 truth of the rumour. But there was another participant in that

12 horrific scene who returned to the prisoners' rooms after G.

13 That witness had been in the hangar longer. He had been there

14 for more than an hour and he returned to tell the truth, as he

15 knew it to be, and perhaps by then was a small, still voice in a

16 situation that was not calm, and the truth about the man with

17 the beard who was giving orders was that it was not Dusko Tadic

18 but a man he did not know. By then no calming influence,

19 perhaps, would have been possible because of the horror that had

20 happened.

21 Already when he returned, people were asking him if it

22 was Dule, if it was Dusko Tadic, in other words. As he told

23 this Court, he told them that he was not there. He did not see

24 Dusko Tadic. He was an eyewitness and a participant. So we

25 must consider the reliability and whether his observation of

26 events is any better than any of the other witnesses. We are

27 setting eyewitness against others who were in the area at the

28 time.

1 This witness H had been ordered around the hangar. He

2 had been ordered to drag bodies up and down the hangar. He had

3 been ordered to lie down, stand up and do push ups. He had been

4 ordered to jump into the canal and drink oil. He had been

5 ordered to hold the head of Fikret Harambasic whilst he had been

6 sexually mutilated by G.

7 He had seen a young guard in a uniform when he had

8 asked for two volunteers and he had recognised that young

9 guard. He had seen a bearded man who selected him as a

10 volunteer, and witness G -- well, not witness G, as G as a

11 volunteer. He had seen that that man wore a green military

12 uniform. He had seen puddles of blood. He had seen the body of

13 Emir Karabasic. He had seen the body of Jasmin Hrnic. He had

14 seen the body of Eno Alic. He had seen where their bodies lay.

15 He had seen the soldiers had gathered around the garage door.

16 He had seen a guard called Bakar (who is important for another

17 reason that I will address the Court upon when I look at what

18 the witnesses say), this man with a scar on his face and whom he

19 and others knew.

20 He had seen the faces of the guards. He knew the

21 guards were from Krkan's shift, what has become known as the

22 notorious shift of guards. He had seen Fikret Harambasic naked

23 and with a battered body climb into the canal where he and

24 witness G were and he had seen witness G bite off Fikret

25 Harambasic's testicle during a fairly considerable period of

26 time. He had seen him spit that part of his body out and that

27 it went down a drain. He had seen where it went.

28 He had seen the guard who set him free. No matter how

1 the Prosecution have attempted to present before this Court a

2 witness blinkered, moving around the hangar unseeing, unknowing,

3 all that background of his participation and how he was involved

4 speaks against the presentation of his evidence in that way,

5 because, as he said, he did not see Dusko Tadic. So we must

6 look at what really happened on that afternoon and consider how

7 reliable witnesses are.

8 The only man to have his testicle bitten off by G was

9 Fikret Harambasic. That is an important feature relating to the

10 evidence on this matter. H, as the eyewitness, was able to tell

11 the Court about that because he and G moved out into that hangar

12 together. We say the litmus test of witnesses' evidence on this

13 matter to determine whether they saw or heard any part of this

14 sexual torture is whether they knew Fikret Harambasic was the

15 victim. That is an important feature of the events that

16 happened, was that for that to happen he was naked, and that is

17 the evidence about him getting into the canal. For this sexual

18 mutilation to take place, he had to be unclothed. He had to be

19 naked to enable it to occur as it did. There is no evidence of

20 those other victims, Karabasic, Alic or Hrnic also being naked.

21 Witnesses who identify the acts of G as being

22 performed on any of those three men are not victims or witnesses

23 who really knew what happened. That is why we say it is a

24 litmus test in relation to the reliability of these accounts,

25 because this Court is faced with the participant eyewitness

26 standing in contradiction to the other witnesses who claim to

27 have seen or heard either some of the events earlier, more

28 adjacent to the time, or just after it.

1 Witness H was familiar with Dusko Tadic with a beard

2 and without a beard. He had known him and was able to say he

3 was able to distinguish, he knew him in both forms of

4 appearance. He starts events in that position down at the

5 stairwell when he is near the door and he saw the guard who

6 called out Jasko Hrnic.

7 Again, a particular feature of this evidence that we

8 say is an important indicator for the Court is that the

9 name "Asko" was used not "Jasko". The evidence has been of the

10 friendship in the past between Hrnic and Tadic. "Asko" would

11 not have been a mistake that Tadic would have made. "Asko"

12 would not have been required to have been called by Tadic, but

13 "Jasko". Even if someone makes a mistake once, if Tadic was

14 there he would have corrected that to the man calling out the

15 names. "Jasko" is the name, the name that he knew so well.

16 Again, this is something that within the whole context of this

17 matter we attribute great importance to.

18 Witness H also saw Alic go past him, Meho Alic, and

19 then return with his son Enver. So there was no participation

20 of detainees in sexual mutilation until after those three had

21 gone out there into the hangar. It was Fikret Harambasic who

22 was the victim of that.

23 Importantly, he heard a prisoner being ordered to eat

24 a pigeon before he went out there. That is whilst he was still

25 down there in what I will call the stairwell, that section

26 behind the doors where the stairs take you to the upper rooms.

27 That was not an event that occurred whilst he was out there in

28 the hangar with G. Fikret Harambasic was not required to eat a

1 pigeon, neither was G, neither was H. That was an occasion

2 before he went out, but what he saw whilst he was down there.

3 We must take it that he would have been more likely to

4 have been at the forefront of any people in the stairwell,

5 because the volunteers, one would imagine, are the more

6 immediate people, and "volunteers" is an expression that has

7 been used but we know they were not really. So, he by those

8 doors would have had a good view of what was happening, calling

9 out Jasko Hrnic, the eating of the pigeon, the people out there

10 in the hangar before he entered that particular arena to play

11 his unfortunate and fateful part.

12 He knew he did not see Dusko Tadic during that period

13 before he had gone out into the hangar. He was taken out after

14 Karabasic, Hrnic and Alic had been beaten. Their bodies were

15 laying virtually lifeless on the ground by that stage.

16 Certainly he believed only one had the remnants of life

17 remaining. We have this ghastly scene of him dragging the

18 bodies of Hrnic and Alic around the hangar. Those were not the

19 bodies of men with any life left in them by that stage. That

20 had passed. They were not the bodies of men able to stand or

21 walk. They were just lying on the ground and he indicated to

22 the Court whereabouts in relation to the canals. He knew where

23 those bodies lay.

24 So, in the view of his evidence as an eyewitness,

25 giving, we would say, powerful testimony on this matter, we must

26 now look at the evidence of others who claim to have seen or

27 heard or been around when these events took place. Perhaps we

28 will start with Halid Mujkanovic, another from the stairwell

1 where he was selected. He did not identify Fikret Harambasic,

2 but he said it could have been a man who was Emir Karabasic that

3 he saw in a canal. He is obviously not clear about the identity

4 of any person he saw whilst he remained peeping through his

5 fingers and hiding himself, as he told us, at the bottom of the

6 stairwell.

7 We say, well, who would have had a better view of

8 these events, Halid Mujkanovic or witness H, one hiding himself,

9 peeping through fingers, the other a direct participant? It was

10 his claim that a pigeon was given to the man being mutilated by

11 G, so the pigeon after H says that happened. He said that Jasko

12 Hrnic was standing and being beaten, but when G and H left the

13 room we know that that was either a lifeless body or a virtually

14 lifeless body that had to be dragged in that barbaric way up and

15 down the hangar. He claims that in that position where he was,

16 which must have been a considerable distance away and in those

17 circumstances of fear, that he was able to see the incident that

18 happened right the other side of the hangar.

19 Interestingly enough, Bakar whom H identified as being

20 present, the man with the scar on his face whom H recognised, he

21 did not identify as being there. This particular guard, Bakar,

22 had demanded money and beaten Mujkanovic, and he knew his name

23 and was familiar with him; and yet for his apparent observation

24 of this incident this guard whom he knew and to whom H gave some

25 prominence because he was aware that he was there, he completely

26 missed out. Of the people there whom one would have expected

27 this witness to have seen, that would have been certainly one of

28 them.

1 Contrary to H, he did not recognise the guards as

2 being those from the infamous Krkan shift. The only name he

3 gave was of Dusko Tadic. We say that is because that name had

4 spread like a wild fire.

5 Armin Mujcic, the next witness I turn to, was sitting

6 on a crate in the hangar and he goes into the stairwell from

7 which G and H eventually emerge when the coloured ones arrive.

8 That must have been sometime later. But he rushes from that

9 area in great fear. I put this before the Court at this stage

10 because we seem to have many people wandering around the hangar

11 at this stage claiming to have seen various things, which is

12 rather contrary to the evidence that they were only allowed to

13 the lavatory at certain times. They had to ask permission and

14 guards were exercising such control that these men were often

15 frightened to leave their rooms. They were safer in the rooms

16 rather than at the mercy of these men outside.

17 But Armin Mujcic's description of the man he says was

18 Dusko Tadic is a man wearing sunglasses and a cap, so what

19 would, apparently, be a partially obscured face that he says was

20 Dusko Tadic. Of all the various guises and forms of clothing,

21 this is the only description in that form. He said it was a

22 correct shift on duty rather than the Krkan shift who gave him

23 this warning, and he just describes Dusko Tadic as arriving

24 within the hangar and does not describe any of the beatings of

25 the victims and omits, of course, from the three main victims of

26 Karabasic, Hrnic and Alic, Beganovic and Muslimovic who were

27 also part of this incident.

28 He says that after the events had taken place, G and H

1 returned up the stairs together whilst returning from the

2 hangar, that they returned to the rooms in the first floor of

3 these buildings within the hangar complex and that they came

4 together, but we know from H, and he told us, he returned later

5 after G. He was required to stay behind and he was near one of

6 the bodies. He believed that Jasko Hrnic had been the victim of

7 the sexual mutilation. Of course, we know it was Fikret

8 Harambasic. He had spoken to G. He had seen the Monika Gras

9 film which featured an interview with G and he did not speak to

10 H. We say there is every indication here of a misidentification

11 by that witness of Dusko Tadic.

12 The next witness I turn to is Husein Hodzic. This is

13 the witness upstairs in the room at the end of the corridor

14 where a large number of prisoners were being held. He had said

15 that Emir Karabasic at the time of the calling out had looked

16 out of the window -- the photograph has been produced before the

17 Court that there is one window that is not of opaque glass, but

18 one window of clear glass -- and in looking out had said, "Dule

19 has arrived, I'm finished."

20 This Court is asked to, first of all, rely upon the

21 reliability of that alleged sighting by the deceased Karabasic

22 as providing a vital connection, and for some reason the

23 specific name "Dule" is mentioned and yet there is no indication

24 certainly that there had been any previous confrontation between

25 Karabasic and Dusko Tadic within the camp. Why did he not, if

26 he knew what was going to happen to him, say, "They have

27 arrived"? Why should this particular victim have known that day

28 that his name was going to be called out, or is this,

1 unfortunately, a case where testimony is being given of almost

2 famous last words, some final departing statement which has been

3 lent to after the event? Because there are interesting reasons

4 why we should say that about this particular testimony.

5 He believed that Karabasic had been subject to, as he

6 describes it, that monstrous act. By that we would reasonably

7 imply the sexual mutilation which, of course, we know was

8 Harambasic and not Karabasic. In his previous statement that he

9 had given in July 1993, he had lent his name and authority to a

10 far more detailed and graphic description of the incident. In

11 that statement he claimed he had seen the whole incident,

12 including Karabasic, Hrnic, Alic and Fikret Harambasic with

13 witness G, but with no mention of H, the second man, perhaps by

14 that stage the still, small and forgotten voice within those

15 rooms upstairs in the hangar building.

16 He claimed to have seen many details of what happened

17 and when cross-examined about it said it was just a story that

18 he had given, an account of events as he understood them to be.

19 But the language of that statement, we submit, does not permit

20 him that interpretation. The word "seen", "I saw", and

21 description were not limited. They were being provided in

22 direct form by him, not in indirect form. The one matter that

23 he has called before this Court upon to provide the nexus

24 between Tadic and Karabasic he did not mention in that

25 statement, the last words of Emir Karabasic. He did not mention

26 in that statement Dusko Tadic at all. He did not mention that

27 he had been given this remark as that man walked out of the room

28 to provide the connection, and there is no evidence of other

1 witnesses within that room hearing the remark.

2 So, he had on a previous occasion claimed to see

3 things he had not, and did not mention these particular words

4 which must have a great degree of significance. They are

5 appealing as last remarks and last remarks can often be

6 scripted. He has, perhaps, given a little something in the

7 evidence in the case, but resiled from what he had claimed to

8 have seen before. There is every motive after what these men

9 had been through for them, unfortunately, to go down such a

10 route.

11 I now move to Elvir Grozdanic whose evidence, we say,

12 is rather peculiar in its form, that he was wandering around the

13 hangar as beatings were happening, perhaps in the Beganovic and

14 Muslimovic phase of the assaults that afternoon. He was

15 wandering around completely unseen and untouched, and when

16 apparently previously Dusko Tadic who had had a confrontation

17 with him over parking had, apparently, been looking for him and

18 wanted to know if he was a particular policeman. He claims to

19 have seen two dead bodies in the lavatories of the hangar

20 building, and to pass by in close proximity to Dusko Tadic as he

21 leaves those lavatories with a bloody stick.

22 It was raised during Miss Hollis's submissions to the

23 Court yesterday about the route, the apparent circuitous route,

24 that Dusko Tadic would have had to have taken if he is right,

25 moving down the hangar almost in a circle to get round to the

26 electrical workshop, as he would have described it, as he moved

27 from the lavatories down to that other end of the building. No

28 matter how slowly, carefully, he was creeping around, one would

1 have thought that he would have been presenting himself there as

2 a target.

3 As part of his evidence, because he must explain how

4 he got back into the electrical workshop, he claims to have

5 slipped through the door as Jasko Hrnic left, is quite clearly

6 his evidence, and he goes to Jasko Hrnic's place in the room.

7 None of those witnesses within that room have claimed anything

8 of the sort that they saw a prisoner, even if they did not know

9 his name, Elvir Grozdanic, that they saw a prisoner slipping

10 through at the same time back into the room and go to the seat

11 where Hrnic had been on that table in a recess that forms part

12 of the room.

13 Interestingly, he claims when he got there something

14 had happened which had still not occurred by then. Armin Kenjar

15 wrote the date 18/-6 an hour later, he had not written it then,

16 but this witness claims that when he got there having slipped in

17 through the door as Hrnic left, unseen by anybody, that he went

18 to that section of the wall and saw there already written

19 18/-6. Well, that had not happened there and then, and we must

20 take it that the man who admitted writing that on the wall and

21 giving his reasons for doing it, which perhaps would have been

22 after all the events had occurred, no one could say then that

23 these men were going to be killed. We know Beganovic and

24 Muslimovic survived. So he must be right about that, that he

25 after it happened wrote that on the wall, but Grozdanic claimed

26 that he saw it already there as he slipped through the door.

27 JUDGE STEPHEN: Mr. Kay, the evidence is that part of what is now

28 written from the photograph was written by Hrnic?

1 MR. KAY: Yes.

2 JUDGE STEPHEN: Then the actual date put on subsequently?

3 MR. KAY: By Armin Kenjar at 7 o'clock and he wrote it later.

4 JUDGE STEPHEN: Yes.

5 MR. KAY: It is the 18/-6 that this witness claimed to have seen when

6 he sat in this place.

7 JUDGE STEPHEN: Thank you.

8 MR. KAY: His statement given in Germany on a previous occasion was

9 again of a totally different picture. He claimed that he saw

10 Emir Karabasic, Fikret Harambasic, Eno Alic and Jasko Hrnic

11 being called out. Quite why a translator should insert this

12 into his statement we have difficulty understanding. It can

13 only be information and representations given by him. When it

14 was put to him that in that previous statement he said he saw

15 the Monika Gras film, he denied that in court. When he said in

16 his previous statement that he had spoken to G, he denied that

17 in court. Was this witness claiming to see things that he did

18 not, because as these events are taking place, which we know

19 start earlier than Hrnic and Alic, with Beganovic and

20 Muslimovic, would he really have been wandering around having

21 food in a part of the hangar where quite a large number of these

22 soldiers were gathering intent on committing torture? How was

23 it possible? Or is he lending his name to something almost as a

24 badge for Omarska? The Prosecution explanation relating to the

25 evidence of this witness and his progress around the hangar, we

26 submit with respect, defies belief.

27 Muharem Besic is the next witness I turn to. He

28 claimed that Dusko Tadic came to the door of the electrical

1 workshop to call out Jasko Hrnic, and that Hrnic opened the door

2 to let himself out. Again, the calling out of Hrnic is claimed

3 by other witnesses, and most particularly, H, to have been in

4 fact by a guard. The indicator of that is why Asko would have

5 been sent first and not Jasko. But there we have it. He was at

6 the back of the room, containing at that time in the electrical

7 workshop 200 people. Even if that is an overestimate, for such

8 a small space 100 people would be a lot, 50 people would be a

9 lot.

10 Again, as an indicator, we say, of this being a

11 witness lending his name to events afterwards, he clearly thinks

12 that the sexual mutilation took place on either Hrnic or

13 Karabasic or Alic because of those words of "bite" and "suck"

14 being spoken of as occurring at the time that they were

15 outside. They were not those victims of sexual mutilation.

16 They had probably just been beaten. He fails what we would say

17 is the Fikret/Harambasic case. Sitting where he was right at

18 the back of this room, why would he have any better view than

19 someone present at the scene being H or any closer to the door?

20 Emsud Velic was another one at the back of the electrical

21 workshop and I turn to him now. He claimed that Tadic came into

22 the door of the room and was looking all over the people for

23 some 10 to 15 seconds. So we have witnesses in contradiction

24 here, some saying a guard at the door with Tadic behind; others

25 saying Tadic at the door, such as he, casting his eye over the

26 people within; others saying the door only being opened to let

27 out Hrnic and then the door closing, that those behind the door

28 were concealing themselves; another witness who does not see

1 Elvir Grozdanic coming into the room, and we would say he fails

2 also the Asko test when that name was called out in that form.

3 So, again, another different story that is before this

4 Court. When he made his English statement in March 1996, and

5 this was a witness the Court may well remember as being the

6 witness who spoke in English. Right towards the end of the

7 Prosecution case, I think the fifth or sixth last witness in

8 August, he spoke in English and gave his evidence in English,

9 and spoke very well. But he had made a statement in March 1996

10 claiming Jasmin and Alic were called from that room at the

11 electrical workshop. His explanation was that he had been late

12 in working and that there was tiredness, or has his evidence

13 changed to fit an emerging picture that various people are

14 seeking to put as a tableau of what happened on that day? He

15 had spoken to G. In re-examination by Mr. Tieger he said that G

16 had told him it was Jasko and Karaba with whom he had been

17 involved. We know it was Fikret Harambasic. At the end of the

18 day that witness in that position, is he reliable? Is there a

19 consistency here, is there accuracy that the Court will need to

20 be certain in relation to these allegations?

21 Armin Kenjar is the next witness I turn to, and I have

22 already spoken briefly about him writing on the wall. He

23 claimed to have seen Dusko Tadic between the canals half an hour

24 before Hrnic was called out. He contradicts Emsud Velic and

25 others by putting a guard at the door and not Dusko Tadic when

26 Hrnic is called out. Asko again is the test that we say is

27 important in relation to his evidence. He gives all the

28 commands relating to sexual mutilation again at that stage when

1 Hrnic has just gone out of the room. So, crucially, in our

2 submission, failing that Fikret/Harambasic test. It is odd that

3 he just puts Dusko Tadic there in the area of the canals, which

4 is probably where he has received some information about events

5 taking place, not doing anything, but is able to identify him,

6 interestingly enough in that half an hour before not being

7 involved with Beganovic or Muslimovic and not identifying anyone

8 else. We say this, it is almost as if there is a sticker with

9 the image of Dusko Tadic and it has been put on the face of the

10 paper. It has that ring about it. We must be clear in our

11 assertions. Plainly, he was emotionally connected with Jasko

12 Hrnic because he is the man who writes 18th June on the wall.

13 Is he now putting that sticker on the picture in that form, not

14 in a detailed form but just as a scrap of information, to stick

15 this on Dusko Tadic?

16 Ferid Mujcic, another one down in the electrical workshop

17 whose evidence was discussed yesterday with the Prosecution and

18 he is also crucial in relation to the chicken kiosk killings,

19 was by the door. He claims that he saw Dusko Tadic behind a

20 guard when the door was opened and Karabasic called out, but

21 Karabasic of course was upstairs, not down in that room. Hrnic

22 was the one called out from that room, not Karabasic. So how

23 reliable is this witness? He told us about his frequent

24 beatings, being the plaything of a particular guard who bullied

25 him all the time and had bullied him on that day. Again, the

26 flavour of his evidence is that he thinks the sexual mutilation

27 victims were Hrnic, Karabasic or Alic, because that is when the

28 sexual language he claims to have heard took place. But we know

1 that the Fikret/Harambasic evidence in fact completely runs

2 contrary to that.

3 So why does a witness such as this give evidence like

4 that, believing or claiming he has seen something? Again, it is

5 the pressure of that room, the circumstances of these men that

6 can well, we say, lead to this kind of thing where a rumour is

7 given subsequently the force of truth. We say that H is far

8 more reliable than a witness such as this.

9 Mehmed Alic who was referred to by me at the time of

10 the leaving of Kozarac and being the only witness on 26th May to

11 see Dusko Tadic at Limenka after the evacuation of people from

12 the town. This is a witness who has the awful tragedy of

13 leading his son out to be mutilated and killed in a savage

14 beating, perhaps. He had to play that role in these events. It

15 is clear that he held back from saying he saw Dusko Tadic. He

16 could not go further than saying: "I know he was there." He

17 added "Dule don't, Dule brother" as being said by one of the

18 victims at the time he was there. In terms of description he

19 said: "I could not see them, who they were, what they were", so

20 he has held back from identifying Dusko Tadic at the scene but,

21 we say, has used for some reason these words as an identifying

22 feature, "Dule don't, Dule brother". Why would that be said

23 then? Is this another example of the nexus being provided in an

24 indirect way? He does that, we say, because he does seek to

25 give responsibility to hold people to account for these events.

26 Interestingly, he puts Dusko Tadic earlier in the day

27 sitting with the Commander of the camp, Meakic. The clear

28 implication to us is that he is trying to hold people

1 responsible for what happened. Interestingly, after he leaves

2 the hangar what was his evidence? It was one perhaps that

3 slipped by most of us as he gave it after he gave the

4 passage, "Dule don't, Dule brother", because he claims that he

5 was taken from the hangar, outside, across the pista to the Camp

6 Commander's office and the camp Commander is informed that Eno

7 Alic has been taken out and "What shall we do with him?" He did

8 not go into the room, so he is holding back from saying that.

9 He was outside and he could hear this being said, "Take him

10 away", meaning Meho Alic, and he is taken all the way back from the

11 administration building back to the red building, the hangar, and back to

12 his room upstairs. That passage is at page 2600 and well worth

13 reading, in our submission, because there is this odd feature of

14 Meakic coming into the account. Why would he be taken by the

15 guard to Meakic's office, the Camp Commander's office and

16 asked "What shall we do with him?" Why? Why would he then be

17 brought back?

18 THE PRESIDING JUDGE: I do not understand. What does this have now

19 to do with the incident?

20 MR. KAY: Our submission is that he is trying to hold people

21 responsible for his tragedy.

22 THE PRESIDING JUDGE: I mean this particular being taken to the

23 Commander's office, what does that have to do with the

24 incident?

25 MR. KAY: It is a very odd feature of his evidence. Our submission

26 is he did not hear "Dule brother" and "Dule don't", and that

27 what he is trying to do is to call people for account.

28 THE PRESIDING JUDGE: I understand that, well it is not important.

1 MR. KAY: It is odd within the context of these events that he should

2 be taken there and come back. Why would Meakic want to be

3 involved with him at that stage? Why would the guards think

4 that Meho Alic be taken to see the Camp Commander?

5 THE PRESIDING JUDGE: What I am saying is what does that have to do with

6 anything? Are you saying he made this up?

7 MR. KAY: Yes.

8 THE PRESIDING JUDGE: How does that help his position regarding the

9 incident? That is what I do not understand.

10 MR. KAY: That is he within the events that he certainly took part

11 in, the taking out of his son, the movement through the hangar,

12 that he is identifying two people and holding them responsible

13 within it.

14 THE PRESIDING JUDGE: You are not following me. It is not important.

15 MR. KAY: Sorry, your Honour.

16 THE PRESIDING JUDGE: No, I do not understand. It is odd for him to

17 testify he was taken to the Commander's office. What does that

18 do, help his testimony or is that just something odd period?

19 MR. KAY: I think our submission is that it has been made up and he

20 is holding the Commander of the camp responsible as well and

21 giving him the knowledge.

22 THE PRESIDING JUDGE: I see.

23 MR. KAY: Sorry if it was not clear. Giving him the knowledge that

24 Eno Alic has been taken out, and pushing responsibility on him

25 in the same way that he has done it on Dusko Tadic by the use of

26 those phrases, "Dule don't, Dule brother." It is a curious

27 piece of evidence and that is our observation upon it. He just

28 said he knew Dusko Tadic was there. He did not see him, he just

1 knew, and he used those words. We say that these are steps

2 being taken by him to hold him responsible.

3 Two other people were involved in the beatings on that

4 afternoon, and I turn to them now, Emir Beganovic who had been

5 beaten several times, within an inch of his life by all

6 accounts, had suffered horrific injuries and was obviously a

7 very brave and strong man to survive what he had to go through.

8 He mentions Dusko Tadic as being part of the group that

9 assaulted him, but does not specifically say what he did. His

10 main attacker is identified as being a man called Dragan who had

11 beaten him on many other occasions, in fact two occasions, on

12 two previous occasions, and had been someone who had been

13 searching for him. In a way this may be significant evidence

14 because he says after he has finished with Beganovic, "Bring me

15 Senad Muslimovic". He is giving orders this man, Dragan. That

16 indeed is what happens, that second victim was brought down that

17 afternoon for the man Dragan and Senad Muslimovic is then

18 beaten, and obviously was specifically required by that person.

19 We have here a witness claiming that Tadic was part of

20 the group of people who took part in this assault, and that he

21 was kicked at the same time as a man called Jasko was also being

22 beaten. So he links these two events, Jasko Hrnic of the three

23 and himself being there at the same time. The Court again will

24 have to look at this evidence to see whether he is a reliable

25 witness. He described being kicked and it is here that the

26 karate kicks are given particular prominence. I have addressed

27 the Court about this feature that most of the witnesses seem to

28 have taken part in karate training, that it does not, on the

1 face of it, establish any particular hallmark by which one could

2 properly identify a person.

3 He was shown a photograph of the Defendant after this

4 trial had started on 9th May, and he did not know Dusko Tadic

5 before. Again, we have this flaw that we say took place in the

6 identification process, four years later after the trial had

7 started. I will not mention the place where he said he lived,

8 but it was discussed yesterday and one would have expected that

9 there had been certainly material from this case that he would

10 have seen and been aware of. Whilst he claims to have been out

11 there in the hangar and Jasko whom he described, with great

12 vividness by the Prosecution yesterday as being sliced by the

13 man in the photograph like chops, none of the calling out

14 process, none of the buildup process, is within his evidence.

15 He says he was being beaten, Tadic was there beating him, and

16 that at the same time as he was being beaten Jasko was being

17 sliced like chops. Well, that is not how those events occurred

18 on that afternoon. We say that this is an example of the rumour

19 mill and perhaps him identifying an assailant incorrectly, and

20 without accuracy that we say the Court should require in

21 relation to these allegations. There are too many flaws and

22 problems within the accounts given for the certainty to get to

23 that level, and that the evidence of H is more than a reasonable

24 doubt in the context of these witnesses. His small voice at

25 that time perhaps was left out in the heat of the desire for

26 revenge to what had happened to those unfortunate men.

27 Your Honour, I finish now with paragraph 6 of the

28 indictment and turn to paragraph 7. Noting the time and feeling

1 quite a dry voice, I wonder if the Court would permit a slightly

2 earlier rise?

3 THE PRESIDING JUDGE: We will stand in recess until 2.30.

4 12.55 p.m.

5 (Luncheon Adjournment)

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1 2.30 p.m.

2 THE PRESIDING JUDGE: We had set aside two days with a third day if

3 it was needed. Are we going to finish?

4 MR. KAY: We will certainly finish in the third day, your Honour.

5 THE PRESIDING JUDGE: Today is Wednesday.

6 MR. KAY: Is it? How time flies.

7 THE PRESIDING JUDGE: When you are having fun, as they say.

8 MR. KAY: Your Honour, I am certainly going to be about another 20

9 minutes and then Miss de Bertodano will probably be about an

10 hour.

11 THE PRESIDING JUDGE: And then Mr. Wladimiroff is going to tell us

12 about 7.1.

13 MR. KAY: Mr. Orie after that.

14 THE PRESIDING JUDGE: Mr. Orie -- sorry, Mr. Orie.

15 MR. KAY: Slightly under half an hour and then Mr. Wladimiroff to

16 wind up so ----

17 THE PRESIDING JUDGE: I have lost track of those hours now. Let us

18 see. I am trying to figure.

19 MR. KAY: About two hours left on this side of the Court.

20 THE PRESIDING JUDGE: What about rebuttal? Miss Hollis?

21 MISS HOLLIS: First of all, your Honour we do request that we be

22 allowed to give rebuttal. Secondly, we believe our rebuttal

23 would be no more than two hours, unless there are many questions

24 from the bench.

25 THE PRESIDING JUDGE: That will encourage me at least not to ask a

26 question, if you promise two hours! So we will then finish by

27 tomorrow at 1.00. Everyone is nodding their head yes, is that

28 right? Then we will finish at 1.00. Mr. Kay, would you like to

1 continue, please?

2 MR. KAY: Thank you, your Honour. I turn now to paragraph 7 of the

3 indictment and paragraph 10 of the indictment because the

4 witness to both these paragraphs is the same witness, Hase Icic,

5 and I will deal with paragraph 7, first of all, which is the

6 beating of a man called Sefik Sivac when he is thrown into the

7 room in the White House on to the floor and he dies at some

8 stage thereafter.

9 At the time this occurred, this witness claimed to

10 have recognised the throwing into the room of the battered body

11 of Sefik Sivac who died in the night. His evidence was that he

12 recognised Dusko Tadic. Obviously seeing someone is a far more

13 powerful form of identification than identification by hearing a

14 voice in respect of which a number of different cognitive

15 faculties are required.

16 This witness himself had been beaten soon after his

17 arrival at the White House. His evidence was that he could not,

18 in fact, recognise his old friend and cousin, Sefik Sivac, who

19 had been thrown into the room and was next to him until it was

20 light and daylight came into the room because, as we know, there

21 was no electricity in this room. His evidence was that Dusko

22 Tadic did not come into the room but was in the doorway and the

23 only lighting occurred outside that room from some form of

24 generator that had been rigged up to illuminate the hallway.

25 We point out to the Court that in his statement of

26 February 1993 he said that he did not identify the accused by

27 sight but by voice, and there has been a significant change in

28 the way he claims to have recognised this witness and come to

1 this Court to tell us about it. I repeat what I said about the

2 difference in recognition between voice and sight, one being, we

3 would say, far more accurate than the other.

4 During his evidence this witness had questions asked

5 of him by me concerning the name Dule. I raise this matter now

6 as it might also be a feature of evidence within paragraph 6

7 that the Court might like to consider, because he had made a

8 statement referring to one Dusan Knezevic or Dusko

9 Knezevic -- Dusan Knezevic -- and used the name "Dule" in

10 respect of him. We have heard of other Dule's in evidence.

11 I think the accused referred to Dule Jankovic, the deputy

12 Commander of police in Prijedor.

13 Charge 10, paragraph 10, of the indictment which

14 concerns his evidence as well is his own beating in the White

15 House where this room at the end of the corridor seems to have

16 been erected or used as some form of torture chamber or beating

17 chamber by guards in relation to people held in that building.

18 Again, he is the sole witness on the matter, but we do

19 point out to the Court that on 8th July 1992 this is an occasion

20 when the police duty states, the record of duty for Dusko Tadic

21 does have an impact upon one of the charges because it shows

22 that he was on duty at Orlovci between 7 o'clock in the morning

23 to 7 o'clock in the evening. That we can pray in aid here and

24 remarks will be addressed to you by Miss de Bertodano concerning

25 our view of that piece of the Defence evidence which reveals his

26 whereabouts as an essential part of his alibi. But a

27 significant feature we say about the unreliability of this

28 witness is the way he was prepared to change his evidence from

1 voice recognition which he had said in a statement to facial

2 recognition.

3 JUDGE STEPHEN: That statement was a very special sort of statement,

4 was it not? It was written by him almost on medical advice.

5 MR. KAY: Yes.

6 JUDGE STEPHEN: In order to clear his mind.

7 MR. KAY: That is right.

8 JUDGE STEPHEN: What, however, at the date when it was written was

9 known generally in the media or elsewhere about the name Tadic?

10 MR. KAY: I think we have had evidence that by that stage there had

11 already been a programme on German television at about that time

12 in 1993. Someone will correct me. It is something that I had

13 forgotten, he actually features in the film of Monika Gras, this

14 particular ----

15 JUDGE STEPHEN: Mr. Tadic does?

16 MR. KAY: --- witness himself -- no, this witness.

17 JUDGE STEPHEN: This witness, but does the Monika Gras post date or

18 ante date his statement?

19 MR. KAY: Can I make an enquiry about that, your Honour, as I cannot

20 recollect?

21 THE PRESIDING JUDGE: The statement was before the indictment was

22 issued, that is for sure. I think it was in January 1993.

23 MR. KAY: I am told it may well be later.

24 THE PRESIDING JUDGE: Which is later?

25 MR. KAY: The film.

26 JUDGE STEPHEN: Yes, thank you.

27 MR. KAY: It is something perhaps we can better check out by looking

28 at the evidence to assist the Court.

1 JUDGE STEPHEN: If you discover anything, you might let us know.

2 MR. KAY: We will, but it is an interesting move from sight in this

3 courtroom and previously the identification had been voice.

4 Whatever explanation one gives, it is the actual means of

5 recognition which is so very different, particularly given the

6 statement that the body in the room was not recognised by him

7 although it was his old friend and cousin. But there we have

8 it. There is this move, and it is another indicator to us of

9 where witnesses will be prepared to move in relation to the

10 quality of the evidence they give, as we say it, in an endeavour

11 to pin this defendant.

12 THE PRESIDING JUDGE: Did not Mr. Icic testify that he in a

13 statement -- he testified that he saw Mr. Tadic and another man

14 throwing in Mr. Sivac, and he could tell that because of the

15 light coming from the hallway. Then you are saying that the

16 statement that he wrote, and it was before the indictment, on

17 the advice of a physician because he had no one to talk to ----

18 MR. KAY: Yes.

19 THE PRESIDING JUDGE: --- in the area where he was. In the statement

20 he said that he heard Mr. Tadic and he testified, though, that

21 the reason that he recognised his voice is that he had heard him

22 the night before when he was being beaten when he walked in and

23 was face to face with Mr. Tadic. Is that not sufficient? He

24 also knew Mr. Tadic. Is that not sufficient identification, is

25 that your position, or is it your position that in addition to

26 the voice when he testifies he says that he saw him?

27 MR. KAY: It certainly can be. I am not saying that voice

28 recognition is impossible, but it is a move that the witness has

1 made. So if one accepts that he is not being frank with the

2 Court about the visual recognition, that it is a case of him

3 believing voice recognition, he has rather cut off that path by

4 denying that and moving that by preventing, perhaps, exploration

5 of those issues. That is where the unreliability of the

6 evidence, perhaps, is best to be seen.

7 THE PRESIDING JUDGE: He has cut off the path for visual

8 identification because he did not mention that when he wrote it

9 out?

10 MR. KAY: For voice recognition, why it was that he recognised the

11 voice. He is staying with visual recognition, and that is what

12 he maintained in this courtroom. One has to remember the

13 circumstances in which he was held and whether that would be

14 good enough with all those men and bodies in that room, the

15 throwing in of the body into the room, whether that would be

16 sufficient in those circumstances for which an accurate and

17 correct voice identification could be made.

18 THE PRESIDING JUDGE: When he testified, it was his position that he

19 heard him and saw him?

20 MR. KAY: Yes.

21 THE PRESIDING JUDGE: Do you recall how long that statement was? The

22 statement was not admitted but, as I read through the

23 transcript, he was on page 4. You asked him to go to page 4 to

24 look for his signature.

25 MR. KAY: Yes.

26 THE PRESIDING JUDGE: So can I assume it was a four-page statement?

27 MR. KAY: Your Honour is testing me here.

28 THE PRESIDING JUDGE: That is only because I have read it more

1 recently -- well, I do not know when you read it. I have read

2 it.

3 MR. KAY: There is a stamped page 200, but it was certainly not a 200

4 page statement.

5 THE PRESIDING JUDGE: No, I saw that too. No, he said that he had

6 written the statement out and it did not contain everything that

7 had happened to him but he just wanted to get some things off

8 MR. KAY: That is right.

9 THE PRESIDING JUDGE: So when you pointed him to page 4, I assumed it

10 was a four-page statement.

11 MR. KAY: Yes, it was more than a four-page statement.

12 THE PRESIDING JUDGE: As I said, you pointed him to page 4 to look at

13 his signature. Therefore, I assumed that if he saw his

14 signature on page 4 his statement could not have been any longer

15 than four pages. That was my only question. I think it is

16 correct because I read it last week. I am not relying on

17 something that happened four years ago.

18 MR. KAY: No, but he did identify the document with his signature on

19 which was, presumably, the purpose of that. He described, as

20 I recollect it, and what was put to him in that statement when

21 he used the word "Dule" in relation to Duca Knezevic as being a

22 slip of the pen.

23 Moving now to paragraph 8 of the indictment, this is

24 the killing of a number of named individuals but the most

25 particular one with which we are concentrating in relation to

26 evidence is Salih Elezovic. The 27th July 1992 has been

27 supplied as the date through the witness Ermin Strikovic and a

28 time of 14.20 p.m., because in his account someone told him that

1 time when that man left his room which was in the middle section

2 of the rooms on the first floor of the White House. To a

3 certain extent, we are relying on the accuracy of that other

4 person's timing and date and, if it is right, obviously,

5 whatever happened would have happened after that particular

6 time.

7 This was a particular day that Dusko Tadic was on duty

8 at Orlovci between 1900 hours and 7 o'clock in the morning of

9 the next day. This count really starts in its investigation

10 with the ownership of those shoes of Salih Elezovic which are a

11 key feature of the evidence. These were worn by Samir Hodzic,

12 one of the two witnesses to the material facts in relation to

13 the matters alleged here, because he took them off the body of

14 Salih Elezovic and to have done that he plainly had contact with

15 Salih Elezovic.

16 Our submission is the Court can accept that he would

17 have had dealings on that occasion with that body to come into

18 ownership and possession of the shoes. Any other explanation

19 would probably be unreasonable.

20 He was turning over those bodies, as the Court

21 discussed yesterday during the Prosecution submissions, for a

22 purpose of identification or whatever reason, but for some

23 reason he was turning them over, and in the collection of bodies

24 that he saw was this Salih Elezovic.

25 The other witness on the matter, Hakija Elezovic,

26 gives a very different account to Samir Hodzic to what had taken

27 place behind the White House and the interaction of these two

28 witnesses. Samir Hodzic gave evidence that on that afternoon,

1 although he was in the White House with Hakija Elezovic, before

2 he saw those bodies near the White House he was taken out and he

3 never saw Hakija Elezovic again after Hakija Elezovic had been

4 taken for interrogation. He did not see Hakija Elezovic behind

5 the White House, nor did he ask him if he could have the shoes

6 of his son Salih. As I said, Samir Hodzic had those shoes and

7 so it would be right to accept his explanation as to how he came

8 into possession of them, that he did take them off one of the

9 bodies.

10 So with the trail concerning the evidence starting

11 there, what does he say about the man he alleges was Dusko Tadic

12 who was present at the scene? He described him as having a

13 facial irritation, some form of sun tan, with no beard and light

14 hair which was high on his forehead. We say how could that

15 possibly be a right and accurate description of Dusko Tadic?

16 Hakija ----

17 THE PRESIDING JUDGE: Was that his testimony or was that the

18 statement?

19 MR. KAY: That was his evidence as well as in his statement.

20 THE PRESIDING JUDGE: OK, and he adhered to that.

21 MR. KAY: The reason why we mention it is because he was trying to

22 move from lightish to black and it simply did not make sense.

23 For whatever reason he was trying to give an explanation about

24 that. The Prosecution did not, in fact, ask him for this

25 description. It came through in cross-examination. It may well

26 be they were aware of the risks to them in relation to this

27 count. But Hakija Elezovic claimed to have seen Dusko Tadic at

28 the time of a mass beating and killing behind the White House at

1 which he saw Tadic beating his son and Tadic also beat him, but

2 for some reason he miraculously survived.

3 If the object was to kill those men, we say, well, it

4 seems odd that he was allowed to survive if the purpose was

5 killing and nothing was done about him. But he says that he saw

6 Samir Hodzic behind the White House with an Albanian loading

7 bodies and there were some 50 or 60 near lifeless or lifeless

8 bodies around, not the picture that Hodzic who got those shoes

9 describes. He described seeing Samir Hodzic take the shoes off

10 the body and he said to him that he could have them, and that

11 the two of them walked back together into the White House,

12 returned together and were in that building at the same time.

13 I point out to the Court that that is at great

14 variance with Hodzic's own evidence that he returned on his

15 own, he ran back to the White House because a guard told him to

16 scram, he was on his own and he was carrying the shoes in his

17 hand. The pictures between the two men are entirely different,

18 and this is a great problem in relation to this evidence. One

19 witness has had extreme misfortune and the loss of a son and

20 claims that he was there at the killing of that son by Tadic.

21 But the accounts are at great variance. Our submission is that

22 it may well have occurred from Samir Hodzic's misidentification,

23 as it was a misidentification, in his evidence and statement

24 about the description of the man he claimed was Tadic, that

25 somehow gave this connection to the other man Hakija Elezovic in

26 relation to the allegation.

27 JUDGE STEPHEN: I am sorry. I do not follow what you have just said;

28 would you rephrase it?

1 MR. KAY: Yes, I will try. These people left Omarska, they went to

2 various camps. Hodzic was a relative of Elezovic. Although he

3 claimed not to have seen him again, one thing is for sure, he

4 had those shoes and they came into his possession that way. It

5 may well be, as we say, that he made a misidentification that

6 fed itself back, either directly or indirectly, to the other man

7 and by that means he made the allegation that he saw Tadic

8 killing his son and he was there and described a scene that was

9 not the scene taking place.

10 Hodzic did not say that there were 50 or 60 bodies

11 behind the White House. There is the issue as to whether he

12 looked. His first answer to the Prosecution's question

13 was "I would have known what was behind the White House". He

14 was then asked, "Well, did you look?" and he said, no, but he

15 would have been aware. We are not talking here about a big

16 building, we are talking about a very small building, and him

17 particularly being on the side or towards the corner of it. 50

18 or 60 bodies would be hardly something you would miss behind

19 there. They would not all be stacked up out of his angle of

20 view, particularly if what was being described was happening as

21 the witness Elezovic said.

22 It is difficult for us to explain this, but there is

23 this enormous contradiction between the two witnesses. The

24 witness Elezovic also claims Tadic beat him during an

25 interrogation in Keraterm. The only allegation we have heard of

26 Dusko Tadic being present during an interrogation in Keraterm

27 comes from this witness, from his own interrogation which took

28 place, he said, with the questions being asked by a man called

1 Radakovic who was the director of the National Park of Kozara.

2 He, apparently, also interviewed him at Omarska.

3 Again it is a feature that has come through to us

4 rather like it did with the Meho Alic point that we made and we

5 ask the Court to consider, of this trying to make people

6 responsible for something. It seems odd to us that there would

7 be that same interrogator at Keraterm, meeting him at Omarska,

8 Tadic is also at Keraterm, Tadic is at Omarska. We say this is,

9 perhaps, an attempt to pin responsibility for what happened upon

10 this accused.

11 There are other contradictions. Elezovic says that a

12 man called Turkanovic was in the pile of dead, whereas Samir

13 Hodzic said quite clearly that he was alive when he returned to

14 the room in the White House, that that is where that person was,

15 and he died subsequently when he was taken out of the room.

16 THE PRESIDING JUDGE: Excuse me, Mr. Kay, did Mr. Hodzic know

17 Mr. Tadic prior to this incident? I do not recall. I have not

18 read that testimony for some time.

19 MR. KAY: Yes, he did.

20 THE PRESIDING JUDGE: Did he know, I mean, knew him -- what was the

21 relationship?

22 MR. KAY: He went to his cafe. He did not socialise with him, but he

23 knew him in Kozarac.

24 THE PRESIDING JUDGE: You say that Hodzic and Elezovic were related,

25 and if it was their goal to manufacture this and blame it on the

26 accused, well, why would Mr. Hodzic then give this

27 identification that you say is wrong, the light to dark?

28 MR. KAY: It is very difficult for us to explain that, why stories

1 are not straight and the same. They just come out as being

2 entirely different. We rely on Hodzic as telling the truth

3 about this. In our submissions we are not criticising him.

4 What we are saying is he has misidentified Tadic quite clearly

5 in that description and the key is the shoes. He has the

6 shoes. What he describes happening is very much at variance

7 with the father's account who has a miraculous survival in

8 relation to those events when it seems the object was the

9 killing of all the people.

10 THE PRESIDING JUDGE: What I meant -- I probably did not make myself

11 clear -- was if he knew what Mr. Tadic looked like and he is

12 attempting to hold Mr. Tadic responsible, why did he not

13 identify him more closely to what you would view of

14 identification in the statement. You cannot answer the question

15 but ----

16 MR. KAY: I simply cannot explain, but the fact of that remains. We

17 simply cannot explain why that would happen but it just has.

18 THE PRESIDING JUDGE: He identified him by name as well as describing

19 his hair colour?

20 MR. KAY: Yes, and the description, not only of the hair colour, but

21 the high forehead.

22 THE PRESIDING JUDGE: Of course, now the Prosecutor said, I believe,

23 in their closing argument that Mr. Elezovic had lost two sons

24 and that would explain his confusion about whether he had given

25 shoes to Mr. Hodzic and also whether he had actually seen

26 Mr. Hodzic load bodies, as opposed to just seeing him turn them

27 over. What do you say to that?

28 MR. KAY: A confused witness probably does not help their case and

1 that is a problem for them, because we need reliable witnesses

2 and in his confusion we say he is wrong about Dusko Tadic.

3 THE PRESIDING JUDGE: I have not read this recently but, as I recall,

4 Mr. Elezovic testified that he knew Mr. Tadic through his son;

5 it was one of his sons who really knew Mr. Tadic.

6 MR. KAY: That is right, yes.

7 THE PRESIDING JUDGE: I have not checked to see whether he actually

8 saw him, but my impression was that he kind of knew what he

9 looked like, but there had not been a close relationship. It

10 was one of his sons who was his associate.

11 MR. KAY: Yes. He said he knew him by sight and it was, in fact,

12 Salih who is dead and the subject of this charge was the one

13 that Dusko Tadic knew. But there is that feature, as I said, of

14 the interrogator being the same in the two places and Tadic

15 being present at his interrogation in Keraterm for no apparent

16 reason.

17 JUDGE STEPHEN: Before you leave the old fisherman Elezovic, he,

18 I think, is almost the only witness who tells us where north is

19 in relation to Omarska which, in fact, if one is going to ever

20 describe Omarska, is very important. Can you confirm that the

21 Omarska hangar runs north-south? That is my understanding from

22 Elezovic, but I do not know if you know of any other evidence as

23 to its position?

24 MR. KAY: I was trying to think whether we have a plan of Omarska

25 with north-south on.

26 JUDGE STEPHEN: I do not think so, not that I have seen.

27 MR. KAY: I cannot remember that, your Honour. Your Honour is quite

28 right when he referred to east, west, north south which, for the

1 rest of us, perhaps, took us by surprise in following which

2 direction he was talking about.

3 JUDGE STEPHEN: Yes, but I do see nods from the Prosecution. Can

4 I assume that it runs north-south?

5 MISS HOLLIS: Yes.

6 JUDGE STEPHEN: Thank you.

7 MR. KAY: I think that probably helps all of us.

8 THE PRESIDING JUDGE: While we are talking about Omarska, I

9 had looked on this list -- if you are finished with 15 through

10 17 -- and I do not think I see the distance from Omarska town to

11 the camp. Did we hear that it was three kilometres or two

12 kilometres? Can you at some point, the Prosecution and the

13 Defence, give us a stipulation or add it to this?

14 MR. KAY: I am sure we will; we have all done it.

15 THE PRESIDING JUDGE: It may be on here. I just need to spend more

16 time looking at this.

17 MR. KAY: We had difficulty trying to locate it on the map with

18 witnesses. He referred to the driving of the truck around when

19 Hodzic was there by the Albanian at the time of moving the

20 bodies -- at great variance with what Hodzic describes.

21 Now moving, in fact, to the last count that I have to

22 deal with on the indictment, and this is the count dealing with

23 abuse of prisoners and the fire extinguisher allegation, again a

24 single witness count being that of Elvir Grozdanic. The

25 description of his evidence given through the demonstrative aids

26 by the Prosecution during their closing address supports the

27 Defence contention that the abuse of the prisoners by asking

28 them to drink water from puddles, jumping on their backs and

1 beating them, which was taking place in front of the White House

2 involving the man Knezevic and Jovic, was actually not a feature

3 of the evidence in relation to this allegation that involved

4 Dusko Tadic. He was seen separately and further up towards the

5 administration building.

6 Your Honours may recollect the plan we looked at

7 yesterday where he had marked the various sightings and how, in

8 fact, Tadic on his account was walking away to where the bins

9 were in the direction of the administration building. So that

10 is the first point we make about this particular allegation.

11 The account given by Grozdanic, who again was a

12 witness who believed that Tadic was looking for him but around

13 and about in this area at the time, we say, because we criticise

14 his testimony, cannot be right if that was so; that if Tadic was

15 looking for him, given what he says about him, that he would

16 have been in great peril then.

17 There is this issue over whether the inhumane

18 treatment can apply to a corpse. There is no evidence that the

19 recipient of the fire extinguisher was alive or dead. It is

20 with no satisfaction that we make observations on allegations

21 such as this, but we are bound to do it. He described the body

22 as being finished with and past its use from abuse that had

23 taken elsewhere. In those circumstances, with the body being

24 put in the wheelbarrow, we say there is more of an indication

25 that that was a corpse being wheeled away than a human being in

26 living form.

27 THE PRESIDING JUDGE: Mr. Kay, there is no evidence, as I recall,

28 that the fire extinguisher was discharged. The indictment in

1 paragraph 9 charges that it was discharged. Does that make a

2 difference? So that if there is no proof that it was discharged

3 and the only proof is it was put in someone's mouth, what does

4 that mean?

5 MR. KAY: I am just looking up my trial notes on the point, your

6 Honour, and I thought he did give evidence that it was

7 discharged -- oh, he did not.

8 THE PRESIDING JUDGE: I have not read it recently.

9 MR. KAY: "Putting the fire hose into the mouth of the man being

10 wheeled away", that was how it was put. The Court will

11 obviously be considering this particular allegation within the

12 framework, whether it does come up to that level as required

13 legally to constitute ----

14 THE PRESIDING JUDGE: That is my question.

15 MR. KAY: --- the offence.

16 THE PRESIDING JUDGE: My question really is a matter of the law.

17 When it is charged that the fire extinguisher was discharged,

18 and that is at variance with the evidence, what is the

19 consequence of that, from your point of view?

20 MR. KAY: Just putting it in, not sufficient, we would say, in the

21 context of this kind of case. Perhaps a more grave form of the

22 discharging of it would certainly be if it was on a living

23 person. The release of the foam from the fire extinguisher

24 would, obviously, be an abuse of prisoner. Putting it into the

25 mouth as he described ----

26 JUDGE VOHRAH: I think what he said was that it was shoved into the

27 mouth of the .....

28 THE PRESIDING JUDGE: You are still not answering my question. My

1 question is, if it is charged that it was discharged and there

2 is no evidence (and I am not certain; my recollection is that

3 there was no evidence of that), is that a significant variance?

4 What is the legal consequence, if you can ---

5 MR. KAY: Oh, it is.

6 THE PRESIDING JUDGE: --- tell me that?

7 MR. KAY: Sorry, your Honour.

8 THE PRESIDING JUDGE: OK. Say it if you feel that way.

9 MR. KAY: I am grateful for your Honour spotting something

10 that certainly I had not, because I was working off the words of

11 the indictment and it had not come certainly to me -- probably

12 to others but not to me -- about just the shoving in of the

13 mouth. That is not sufficient, in our submission, to constitute

14 sufficient abuse in relation to this count; discharging would

15 and the evidence has not come up to proof on that feature. So,

16 the round of our submission is that legally none of it satisfies

17 this particular charge on the indictment.

18 I do not know whether your Honours have any further

19 questions of me? I have been 45 minutes instead of half an

20 hour, but that is the full extent of my submissions upon the

21 Prosecution case.

22 JUDGE VOHRAH: Much has been said by Prosecution witnesses about the

23 fear which the name "Dule" inspired and by the presence of Tadic

24 apparently in the camp. Can you explain why there was this

25 fear?

26 MR. KAY: It could well derive from that spark that we say was hit by

27 G in June, on 18th June, and that is why we say rumour began to

28 give the form of truth. That was certainly the most horrific

1 day that we have heard about in the evidence. Until that time

2 days were bad enough, but what we have heard on that particular

3 day taking place after the camp had been opened, let us say,

4 some 20 days, and if he hit that spark that caused that rumour,

5 one is not surprised that there would be that fear and

6 trepidation. The problem is if he is wrong. Thank you, your

7 Honour.

8 JUDGE STEPHEN: Just taking up that very interesting question from

9 Judge Vohrah, nothing that we have heard of the accused's time

10 before the war in Kozarac would give rise to any fear of him at

11 all, I imagine.

12 MR. KAY: No.

13 JUDGE STEPHEN: Therefore, when you do hear of this fear, one has to

14 see some reason for it as at the time that it is expressed. One

15 finds that only in actions after the war, presumably in the

16 camps.

17 MR. KAY: Yes, there are other Dule's, as I pointed out earlier this

18 afternoon in my submission. Dule is not an exclusive badge of

19 this defendant. When I opened my address to the Court,

20 I referred to the bogey man figure that Tadic seemed to have

21 become. Perhaps he was a powerful man, a big man, from a

22 traditional family with a father held in a certain esteem. But

23 there was that bogey man feature that was there, we would say,

24 before the conflict and that continued which is why we chose

25 that phrase in the camp.

26 There were other Dule's. There is no doubt about

27 that. But once rumour goes round these unfortunate places and

28 the pressure and intensity by which these people passed their

1 lives, we can understand what would happen in relation to a

2 misidentification becoming gradually stronger and stronger.

3 People lend their names eventually to sign up to these matters.

4 THE PRESIDING JUDGE: Did we not have testimony -- at least I think

5 the Prosecution made reference to testimony from one witness who

6 said that Emir Karabasic had said that, "If Dule finds out I am

7 here, then I am in trouble because I know too much"?

8 MR. KAY: Yes.

9 THE PRESIDING JUDGE: Is that a possible reason, if you accept that,

10 for there to be fear at least in Emir's mind or Mr. Karabasic's

11 mind?

12 MR. KAY: That was the witness Seferovic, the man with the birds, the

13 orchard, and the sleighing of the two policemen, Osman and Edin

14 Besic. It is a rather interesting remark because it rather

15 implies that Tadic had not been in the camp before that day, if

16 that is so, so it does not quite fit the matrix of the

17 Prosecution case. One would have expected from the profile they

18 presented that he would have known that he was there if he was

19 part of the selecting of police officers or targeting

20 individuals, he would certainly have known where, if that was

21 the case, that there was to be this conflict and killing of

22 Karabasic, that would have been something he would have known

23 about before.

24 THE PRESIDING JUDGE: I wanted to ask you whether the evidence

25 indicated what date Mr. Karabasic was placed in Omarska?

26 MR. KAY: I do not think we have had evidence about that other than

27 the fact that the policemen formed the head of the convoy from

28 Kozarac.

1 THE PRESIDING JUDGE: I do not remember any. My last question that

2 relates to these questions is what effect do you feel the

3 intensity, if that is the word to use for these events, the

4 horrific nature, as you have described them, of these events,

5 what effect does that have on a person's ability to recall with

6 precision some of the details as opposed to identifying the

7 person?

8 MR. KAY: Some say that it is for ever printed on your memory.

9 THE PRESIDING JUDGE: The identity of the person or what happened?

10 MR. KAY: The events that you never forget. We certainly do not have

11 consistencies of account.

12 THE PRESIDING JUDGE: We should have asked Dr. Wagenaar that

13 question.

14 MR. KAY: Yes.

15 THE PRESIDING JUDGE: That would have been one that would have helped

16 us, at least his opinion.

17 MR. KAY: Yes. Can I deal with your Honour's earlier point about

18 Karabasic? He had been in for some time. You will recollect

19 that he was known within that end room on the first floor and

20 that he had been there for some time. He had already been

21 interrogated and beaten. I think we can take it he had been

22 there for quite some time. He was not a fresh arrival or

23 anything like that; the evidence indicates otherwise.

24 THE PRESIDING JUDGE: Do you recall what is the first date of an

25 allegation that Mr. Tadic was in the Omarska camp? This would

26 have been the first of the substantive counts, but there may be

27 a date in count 1.

28 MR. KAY: As I recollect it, early June on the pista but, your

1 Honour, if I can just check this?

2 THE PRESIDING JUDGE: Before June 18th?

3 MR. KAY: Yes. I think, in fact, it is 29th May and it is Hamdija

4 Kahrimanovic, and I am right on this. It is not a question of

5 "think", it is right. 29th May, 4.00 to 5 o'clock, when he was

6 on the pista.

7 JUDGE STEPHEN: What was the name of the witness?

8 MR. KAY: Hamdija Kahrimanovic, pages 2100 to 2138. He was in

9 Omarska for a short period of time from 27th May to 5th June and

10 he claims to have seen him as well on 4th to 5th June at about

11 midday in the same place. To put him in context, he was one of

12 the League of Peace delegation from Kozarac.

13 THE PRESIDING JUDGE: Thank you, Mr. Kay.

14 MR. KAY: Thank you, your Honour.

15 THE PRESIDING JUDGE: Miss de Bertodano, you may proceed.

16 MISS DE BERTODANO: Thank you. Your Honour, I am to address you on

17 the Defence case. The way I intend to do it is to first go

18 through the alibi and then make some observations on the

19 previous statements made by Mr. Tadic both in his interviews and

20 in the work report which he wrote.

21 Before I start, there are two very general points that

22 I would like to make about the difficulties that have been

23 attendant on this defence. The first one was mentioned already

24 yesterday which is that this defence relates to a period of over

25 six months and we are providing an alibi defence. This is not

26 an alibi which says, "I was in the United States of America

27 during this time". It is an alibi which says, "I was living in

28 the area but I did not do the offences with which I am

1 charged".

2 The difficulty about that is that one is never going

3 to get to a situation where you have witnesses who can cover

4 every minute of what the defendant was doing over this kind of

5 period of time and, although some of the allegations in the

6 indictment are linked to specific dates, many of them have

7 really no date at all. So that is a difficulty in this kind of

8 case, and one which is not of the defendant's making.

9 The second difficulty (which I will not dwell on and

10 which you know of already) is the difficulty we have had in the

11 course of our investigations. First, in finding the people who

12 will speak to us and, secondly, even if they do speak to us, in

13 persuading them to come and give evidence before this Tribunal,

14 whether by video link or in The Hague. I think we can safely

15 say that we have not had all the witnesses that we would like to

16 have had appearing for the Defence.

17 However, what we have produced is a series of

18 witnesses who have spoken about their dealings with Dusko Tadic

19 over this period of some six months and who have confirmed, we

20 say, as far as is reasonably possible the story that he has

21 given right from the start. In general, people spend a great

22 deal of time with their family, so it is of no surprise that the

23 witnesses Mira Tadic, Dusko Tadic's wife, and his brother

24 Ljubomir cover substantial parts of this alibi.

25 On top of this, we have managed to produce concrete

26 documentary evidence which supports again the story given by the

27 defendant right from the start showing that he worked in the

28 police during the months of June, July, August up to September,

1 and these documents confirm what he has always said to be the

2 case. Moreover, they do give what we would not otherwise have,

3 specific times at which he was at a certain place. I shall say

4 more about these later.

5 We are not required to prove our alibi in any way.

6 What we are required to do is to cast reasonable doubt on the

7 Prosecution evidence. In our submission, we have succeeded in

8 more than doing that.

9 We have provided the Court with a detailed

10 chronological schedule of alibi which takes the Court through

11 day by day as to what Dusko Tadic was doing, and which witnesses

12 back this up. I do not intend to go through this page by page

13 or day by day. What I intend to do is take you through the

14 general story and look at the witnesses who have come to give

15 evidence in support of that story.

16 The history of the accused's movements at this time

17 starts in April when his family move from Kozarac, as do other

18 families in the town, because of the rising tensions in the

19 area. The Tadic family, we have heard, left the town for a

20 substantial part of April and went to stay in Kozice. Dusko

21 himself, however, returned to live and work in Kozarac. The

22 family returned just before the end of the month in the belief

23 that the situation had calmed down. Ironically, soon after that

24 Prijedor was taken over by the Serbs and the family then had to

25 leave again.

26 It has been alleged by the Prosecution that this was

27 no coincidence, that this can be seen as evidence that Dusko

28 Tadic knew that the takeover of Prijedor was going to happen.

1 We say the opposite is the case. Had he known, why would the

2 family immediately afterwards have left again? In any case, had

3 he known, surely, it would have been obvious to anyone that if

4 Prijedor was taken over by Serb control, the situation in

5 Kozarac, the Muslim stronghold, was likely to get more difficult

6 and more tense rather than less so.

7 In any case, as the defendant remarked to his brother

8 Ljubo at the time, it was a case of "Here we go again" and off

9 the family went to Banja Luka in the car of the local priest.

10 Having arrived in Banja Luka, they obtained the house in

11 Starcevica. We have seen photos of it in Exhibit 62. They

12 obtained this with the help of Ljubo's friend, Nedim Alic.

13 So begins nearly two months of residence in Banja

14 Luka. Dusko Tadic, of course, did not stay in Banja Luka during

15 this time. He still had his business in Kozarac to run. So,

16 having settled his family in, he then returned to Kozarac to

17 look after the cafe.

18 At about this time as well, and we suggest with even

19 greater irony in view of the allegations that are being made,

20 Ljubomir opens up a new business in Kozarac, a discount drinks

21 store, right next to Dusko Tadic's cafe. He only opens it up at

22 the beginning of May. He receives a substantial delivery of

23 beer on 21st May, only to find on 22nd that he can no longer

24 return to Kozarac.

25 We suggest, of course, that had Dusko Tadic known

26 anything of what was going to happen, he would have at least

27 suggested to his brother that this was not the time to be

28 starting up a business and certainly would have told him to stop

1 receiving deliveries at a time when the Prosecution allege Dusko

2 Tadic knew exactly what was going to happen on 24th May.

3 On 23rd May, after the blockade of Kozarac had

4 started, Dusko Tadic leaves Kozarac, and he leaves in the car of

5 Trivo Reljic who has come to give evidence. Again it has been

6 suggested that he left on 23rd because he knew what was going to

7 happen. Mr. Kay touched on this yesterday. Everyone knew that

8 something was going to happen. All the Serbs were leaving

9 Kozarac. Many Muslims who had the opportunity to leave were

10 leaving as well. We have heard from Kemal Susic that he himself

11 said to Sejad Cirkin on 23rd May, "There is no way out for us",

12 meaning of the conflict, "There is no way of escaping that", and

13 he added in his evidence, "And we all knew that." The cite for

14 that is page 2186.

15 So, what we have here is a situation where everyone

16 knew, everyone had heard, everyone saw what was happening. One

17 did not have to be told of the plans by those who intended to

18 attack Kozarac to decide that the best option was to leave. So,

19 we have a picture of this family who is not a family privy to

20 any special knowledge about what is going on at this stage. It

21 is a family which is fleeing, not fighting.

22 THE PRESIDING JUDGE: Excuse me, but if everyone knew that this was

23 going to happen, then Mr. Ljubomir Tadic perhaps made the

24 decision to go ahead in the face of that information.

25 MISS DE BERTODANO: I am not saying, your Honour, that everyone knew

26 there was going to be a massive shelling of Kozarac, only that

27 everyone could see ---

28 THE PRESIDING JUDGE: That it was coming to a head.

1 MISS DE BERTODANO: --- the situation was becoming untenable.

2 THE PRESIDING JUDGE: Sure. You had April 29th -- was it April 29th

3 -- that Prijedor was taken over.

4 MISS DE BERTODANO: April 30th that Prijedor was taken over.

5 THE PRESIDING JUDGE: April 30th it was taken over, so that was a

6 month before.

7 MISS DE BERTODANO: Yes.

8 THE PRESIDING JUDGE: It is becoming awfully close.

9 MISS DE BERTODANO: We suggest this was a period when tensions were

10 building up. We have the meetings of the Peace League which

11 Kemal Susic and Hamdija Kahrimanovic had talked about as well as

12 Dusko Tadic. I think that Kemal Susic's remarks were made in

13 the light of the situation that the Peace Council was seen to

14 have failed, that until that time, I believe (although I am

15 saying this off the top of my head), the second meeting of the

16 Peace League was somewhere about May 20th, until that time it

17 may be that there was still considerable hope that fighting in

18 Kozarac could be averted.

19 After this, we get into the serious ultimatums being

20 made and we have heard that from 22nd May there was actually a

21 blockade of Kozarac. That was the situation which everyone saw

22 themselves in. This had not happened before 22nd May, so to

23 leave first thing on 23rd May does not seem to me to be an

24 extraordinary coincidence.

25 We have heard also from Prosecution witnesses --

26 I mention Husein Hodzic -- that Dusko Tadic left on that day.

27 I think there is little dispute that that happened. We have

28 heard from Jelena Gajic that he came to her apartment in

1 Prijedor before taking a train to Banja Luka. Then we have

2 heard from Ljubo Tadic that he arrived in Banja Luka that

3 afternoon. More importantly, perhaps, we have heard evidence

4 from witness X who is the [redacted] who came to give

5 evidence. She said that when the Tadic family arrived in Banja

6 Luka, they came to her house that evening and she was very

7 specific that it was that evening and they stayed the night in

8 her house.

9 The Prosecution suggested yesterday that it is very

10 unlikely that someone would remember that with such certainty

11 after all this time. Our submission is that it is not at all

12 unlikely because one of the reasons why witnesses remember dates

13 or remember specific incidents is because they link them with

14 other important incidents. Witness X testified that she heard

15 soon after about the attack on Kozarac. It seems clear to me

16 that, being a friend of Dusko Tadic, having seen him on the

17 night that he fled from Kozarac, that would be linked very

18 clearly in her mind with hearing that the day after that Kozarac

19 was shelled.

20 Having arrived in Banja Luka, Dusko Tadic stays in

21 that house in Starcevica until 15th June. We have many

22 witnesses who have testified that they saw him regularly in

23 Banja Luka during that time. We have heard from Dragoje Balta

24 who was his next door neighbour in Koste Jarica Street. He came

25 and gave evidence that Dusko had been his neighbour during this

26 time; that they had met several times and, indeed, that they had

27 spent a considerable amount of time in each other's company.

28 This man was an ordinary locksmith. He did not know

1 Dusko Tadic. He was not an old friend of his. He has no

2 apparent reason for coming to The Hague and giving that

3 evidence, unless it is true. I recall when he was giving the

4 testimony in cross-examination that there were some attempts to

5 paint him in a sort of sinister light because he had been part

6 of a rather, well, perhaps you could call it a sort of Dad's

7 Army guarding some buildings nearby for a purpose which he said

8 he had never found out. We would suggest that that was

9 laughable.

10 We then heard from Nikola Petrovic. He said that he

11 saw the accused on 24th May and every two to three days

12 thereafter. We have heard from Borka Rakic, Witness X, again

13 testifying they had seen Dusko Tadic often during this period.

14 Witness D testified that when she first saw the family in

15 Prijedor afterwards, they told her that they had been in Banja

16 Luka all that time.

17 So, although during this period we cannot give

18 concrete evidence of every date, we cannot say he had lunch with

19 so and so on that day and supper with so and so. What we can

20 provide is a body of witnesses all of whom saw him often in

21 Banja Luka dressed in civilian clothes behaving in an ordinary

22 manner.

23 During this period until 15th June we have heard that

24 Dusko Tadic left Banja Luka on three occasions. The first time

25 we have heard is about 1st June when, having heard that the

26 fighting is more or less over in Kozarac, he goes back with his

27 brother Ljubo to see that his property is still intact. He goes

28 on a similar visit on 8th or 9th June and on this occasion he

1 stays the night. On both these occasions he travels by train to

2 Omarska.

3 He walks to the house of Milenko Timarac, his friend

4 and former waiter. Milenko Timarac provides the transport for

5 them to go to Kozarac. On each of these occasions they stay in

6 Kozarac for no more than a couple of hours. On the second

7 occasion they hire a truck to get them back because they are

8 taking their possessions with them.

9 The third occasion on which he left Banja Luka was on

10 6th June when he and Jovo Samardzija visited the collection

11 centre at Trnopolje. We have heard from Jovo Samardija. He

12 said that Dusko Tadic was asked by him to go with him to help

13 him find his sister, Dara, whom he thought might be in Trnopolje

14 camp.

15 We have heard that Dusko Tadic was reluctant to go,

16 but that he agreed because this was an old man, he could not go

17 alone and he needed help. We have heard they travelled by train

18 to Trnopolje. They stayed for some two hours in the area of the

19 camp. Their search having been unsuccessful, they returned to

20 Banja Luka that afternoon.

21 It was suggested yesterday that the evidence of Jovo

22 Samardzija was in conflict with that of Dusko Tadic; that Jovo

23 Samardzija said that Dusko Tadic spent his whole time with the

24 guards and did not talk to the prisoners. If one checks the

25 transcript of that, that is a misrepresentation of what was, in

26 fact, said.

27 It is certainly true that Mr. Samardzija said that

28 Dusko Tadic talked to the guards. He made no comment on whether

1 he talked to the prisoners or not. But what he did say was, "We

2 were together the whole time". It seems to me that the

3 suggestion from that is that if Mr. Samardija was among the

4 prisoners and he and the defendant were together the whole time,

5 there is no conflict with the story of Mr. Tadic that he spoke

6 to the prisoners as well perhaps as to the guards.

7 I think Mr. Kay mentioned yesterday that this we see

8 as an important recorded visit. It is one that the accused has

9 always said that he made, and it is one in which there is no

10 indication that he had any powers in Trnopolje, that he had any

11 status, that he could order anyone to do anything. He simply is

12 taken along as someone younger, stronger and fitter who can

13 assist this old man in finding his sister.

14 These three are the only occasions on which Dusko

15 Tadic left Banja Luka during this period. Both his brother

16 Ljubomir and his wife Mira, whom we say are the only people in a

17 position to say this, say that he did not leave at any other

18 time. His more casual acquaintances may or may not know that,

19 but the evidence of his brother and his wife is that these are

20 the only visits he made. In each of these cases we have heard

21 from the companion he was with at the time as to exactly what

22 happened on these visits.

23 If I move on now to 15th June, this is the date at

24 which Dusko Tadic returns to Prijedor to join the traffic

25 police. We have heard that he worked there from 16th June up

26 till early August. During this time he stayed first with his

27 cousin Radovan Vokic, then with a Croat family, Martin and

28 Mileva Dzaja, and on a couple of occasions when his duties

1 permitted it he returned to stay with his family in Banja Luka

2 where he still had all his possessions and was still,

3 essentially, based at the time.

4 On 27th June the family moved into a flat in the

5 Pecani apartment blocks and they lived there for the remainder

6 of 1992.

7 THE PRESIDING JUDGE: Excuse me. Let me ask you a question before

8 27th. In your alibi, the chronology of alibi, you say that from

9 June 15th -- 16th is the first night that Mr. Tadic spends with

10 the Dzaja's, is it?

11 MISS DE BERTODANO: That is right, yes, that was the evidence that on

12 the night of 15th.

13 THE PRESIDING JUDGE: Oh, 15th.

14 MISS DE BERTODANO: Sorry, I am in July.

15 THE PRESIDING JUDGE: No, June 15th.

16 MISS DE BERTODANO: On the night of 15th he stayed with Radovan

17 Vokic. Then from 16th he stayed with the Dzaja's.

18 THE PRESIDING JUDGE: No, he goes home and he spends the night with

19 his wife.

20 MISS DE BERTODANO: I am sorry, yes, and then we have him staying

21 with the Dzaja's after that.

22 THE PRESIDING JUDGE: So my question is you have him staying with the

23 Dzaja's for several nights, the 17th, 18th, 19th ----

24 MISS DE BERTODANO: Yes, that is right, the nights which he was not

25 in Banja Luka ----

26 THE PRESIDING JUDGE: --- 20th, 21st. OK. I went to the transcript

27 that you cited and, as I recall, Mr. Tadic said that he spent

28 several nights. I remember he begins a discussion on the

1 left-hand side of the page. That is all I know and I do not

2 know the page. It is 2000 something. What is it? Anyway, he

3 does not give dates. He does not say that he spent every night

4 that he was in Banja Luka with the Dzaja's. He says that the

5 first night he spent with his wife on the 17th, he said

6 Mrs. Tadic, his wife, spent the night with him. The other

7 nights he spent on his own, but earlier he just said "several".

8 I do not see ----

9 MISS DE BERTODANO: The implication being still with the Dzaja family

10 and this is confirmed in some of the interviews as well. Where

11 he has not said otherwise ----

12 THE PRESIDING JUDGE: You assume he spent the night?

13 MISS DE BERTODANO: That is the implication. When he says "alone",

14 he was not sleeping on the streets. He was still staying with

15 the Dzaja family and he is saying "alone" in relation to Mira

16 being there.

17 THE PRESIDING JUDGE: My question really went to whether there is any

18 indication in the transcript that Mr. Tadic said that every

19 night that he was in Banja Luka before they moved into the house

20 on 27th he spent with the Dzaja's. That was really my question.

21 MISS DE BERTODANO: I am not sure that he said that in terms, but he

22 says -- in fact, I have it here -- "I slept at Martin and Mileva

23 Dzaja's place" -- this is 6001 -- "for a couple of nights. I do

24 not remember exactly how many. The first time with my wife when

25 we came to Prijedor. After that I spent several nights at their

26 place on my own". That is the bit that you were referring to.

27 We hear later that he moves into Pecani on 27th, but he does not

28 give any other place that he stayed. So we assume that the

1 "several nights" refer to the nights when he is not in Banja

2 Luka.

3 THE PRESIDING JUDGE: OK.

4 MISS DE BERTODANO: I might remind the Court that the Dzaja's are two

5 of the witnesses whom we were unable to get to come to The Hague

6 to give evidence.

7 THE PRESIDING JUDGE: I heard several times that they were old and

8 sick. I thought that was reason.

9 MISS DE BERTODANO: That is right, yes. I was not suggesting that it

10 was for political reasons.

11 THE PRESIDING JUDGE: So on 16th, though, he goes home, is that

12 correct? He spends the night at home on 16th?

13 MISS DE BERTODANO: In Banja Luka, that is correct.

14 THE PRESIDING JUDGE: Then he comes back on 17th ----

15 MISS DE BERTODANO: Yes.

16 THE PRESIDING JUDGE: --- on the train with his wife?

17 MISS DE BERTODANO: That is right, yes.

18 THE PRESIDING JUDGE: That was at 6 o'clock.

19 MISS DE BERTODANO: He takes the early train.

20 THE PRESIDING JUDGE: What time did that leave?

21 MISS DE BERTODANO: He may say in evidence.

22 THE PRESIDING JUDGE: 6 o'clock.

23 MISS DE BERTODANO: But I think he said it was 6.00 or before 6.00 --

24 6 o'clock rings a bell -- and then is on duty on an early shift.

25 THE PRESIDING JUDGE: He is supposed to start at 7 o'clock.

26 MISS DE BERTODANO: That is right, yes.

27 THE PRESIDING JUDGE: But the train ride is an hour-and-a-half,

28 according to the witness, we heard. So he must have been late

1 then to work on 17th.

2 MISS DE BERTODANO: I am trying to find the place in the transcript

3 where he speaks of this.

4 THE PRESIDING JUDGE: I think he said he left at 6 o'clock and then

5 the other witness, the gentleman who testified via video link,

6 had said that the train ride was an hour and a half.

7 MISS DE BERTODANO: Yes, but the cite I have here simply says: "So

8 we arrived very early by train from Banja Luka" and does not

9 give a specific time.

10 THE PRESIDING JUDGE: I think it was Mrs. Tadic who testified that it

11 was 6 o'clock.

12 MISS DE BERTODANO: That it was the 6 o'clock train.

13 THE PRESIDING JUDGE: So, really, if he arrived at 7.30, then he was

14 on duty at 7.00, and then I went back and looked at the

15 spreadsheet to see if it had indicated that he was late and it

16 did not.

17 MISS DE BERTODANO: What I would say is that her getting perhaps the

18 train time wrong by a few minutes or half an hour, it may be

19 that the train left earlier than 6 o'clock. I would have

20 thought it unlikely that she could remember at this stage the

21 exact time at which the train left. What we do not have in

22 evidence ----

23 THE PRESIDING JUDGE: She remembered a lot of dates so, I mean .....

24 JUDGE STEPHEN: I thought she said before 6.00 but I may be wrong.

25 MISS DE BERTODANO: I have 6.00 in my mind; whether she said before

26 6.00 or at 6.00.

27 THE PRESIDING JUDGE: We do not want to use a lot of time. We will

28 recess for 20 minutes and then we can check the transcripts.

1 Yes, Miss de Bertodano, you may continue.

2 MISS DE BERTODANO: I am sorry, I thought you said we would recess

3 NOW.

4 THE PRESIDING JUDGE: I said we would recess at 4.00 and we will have

5 20 minutes to look at the transcript and then we can come back

6 and talk about it.

7 MISS DE BERTODANO: Just touching then briefly on this flat in Pecani

8 that they moved into, we have had a lot of people, well, a lot

9 of remarks, might I say then, made by the Prosecution that this

10 was a very luxurious flat to get. It is the flat of the old

11 police Commander, Hasan Talundzic.

12 In the context of that, I would like to draw the

13 Court's attention to the photo we have in evidence at D67 of the

14 outside view of the flat where we can see -- this was shown to

15 us by Nada Vlacina who also lived in Pecani -- it actually

16 occupies one window of the third floor of this apartment block,

17 and that the rebuttal witness who was the relation of Talundzic

18 and spoke about the flat said that it had two bedrooms.

19 So just to keep this in perspective, we are not

20 talking about a palatial apartment. We have also had evidence

21 that it was sparsely and poorly furnished from Nada Vlacina.

22 I am turning now to the police duties, and until 1st August

23 which covers a crucial period of this evidence and a period in

24 which the most serious allegations have been made, Dusko Tadic

25 was working almost every day at the traffic checkpoint at

26 Orlovci. On 3rd August, also in the traffic police, he worked

27 one shift as Most Na Sani.

28 The Court has heard the evidence of many witnesses who

1 saw him regularly at this checkpoint; to mention some, Nada

2 Vlacina, Radoslavka Lukic, Dragolje Jankovic, Rajko Karanovic

3 and Zeljko Maric. Many of these witnesses are ordinary people

4 with nothing to hide, no reason for saying that he was there if

5 he was not. So there can be no doubt that he was, in fact, a

6 reserve policeman at the Orlovci checkpoint.

7 THE PRESIDING JUDGE: May I ask you a question with respect to

8 Mr. Jankovic? He testified that he saw Mr. Tadic on duty at the

9 Orlovci checkpoint before Mr. Tadic delivered the goods to his

10 home for storage and that was in May. How could he -----

11 MISS DE BERTODANO: No, no, the goods were delivered to his home

12 sometime in July. I have forgotten the exact date. There are

13 two goods deliveries; the first one on 15th June to the house of

14 Sava Vokic and the second one to the house of Dragolje

15 Jankovic. That is at some date in July.

16 THE PRESIDING JUDGE: Maybe we can check the transcript.

17 MISS DE BERTODANO: I will check that over the break, your Honour.

18 THE PRESIDING JUDGE: I remember asking him when he delivered the

19 goods. He was talking about the attack on Kozarac. We got into

20 a long discussion as to whether or not it was during the

21 shelling or after the shelling. He finally agreed that it was

22 May, I thought, when the goods were delivered the first time.

23 MISS DE BERTODANO: I remember the unclarity and my memory of it was

24 it being clarified.

25 THE PRESIDING JUDGE: Then I asked him, "Well, when did you see

26 Mr. Tadic?" He said, "Before the goods were delivered". So you

27 can check the transcript.

28 MISS DE BERTODANO: I will check that over the break, your Honour.

1 THE PRESIDING JUDGE: Is there an indication in the transcript of

2 what hours Miss, what is her name, Vokic, the relative?

3 MISS DE BERTODANO: Mrs. Lukic.

4 THE PRESIDING JUDGE: Is there an indication in the transcript what

5 hours she worked? I know she worked at the hotel.

6 MISS DE BERTODANO: Yes. She was the witness who spoke of a curfew

7 at 9 o'clock in the evening, so we are talking of a time before

8 that, before the curfew. But again I do not recall whether she

9 said exactly what her hours were. My recollection is that she

10 had more than one job during this period and the hours may have

11 differed, but again I can check.

12 THE PRESIDING JUDGE: OK. I thought that she had travelled through

13 the checkpoint on her way to the hotel. I have not gone back to

14 check, but I was just wondering what her hours would have been

15 so we could determine when she would have seen Mr. Tadic in

16 terms of his assignment. The other question relates to

17 Mrs. Vlacina: did she testify that she saw him more than once

18 after the first half of June or just during the first half of

19 June?

20 MISS DE BERTODANO: She said several times within that period. I do

21 not think she was absolutely specific as to what period, but she

22 had family who lived in Orlovci and whom she went to visit.

23 That is the connection in which she came in contact with him.

24 THE PRESIDING JUDGE: I am trying to remember. I suppose I am asking

25 you for transcript cites so I will not have to re-read the

26 entire 6,000 pages. We will stand in recess for 20 minutes.

27 4.00 p.m.

28 (The Court adjourned for a short time)

1 4.20 p.m.

2 THE PRESIDING JUDGE: Mr. Kay, before I forget the references that

3 you made to the transcript during your presentation ----

4 MR. KAY: Yes, your Honour.

5 THE PRESIDING JUDGE: --- would you please provide citations for us?

6 MR. KAY: Yes, your Honour.

7 THE PRESIDING JUDGE: You will get the transcript and then as soon as

8 you can get those to us?

9 MR. KAY: Yes, if I can look at the transcript to do it as I cannot

10 carry it in my head.

11 THE PRESIDING JUDGE: No, after you get it back, if you can, as

12 quickly as possible. Miss de Bertodano?

13 MISS DE BERTODANO: Your Honour, to clear up the three matters that

14 we were discussing before the break, the first time being the

15 time that the Tadics arrived in Prijedor on 16th ----

16 THE PRESIDING JUDGE: I was asking what time they had left, and I had

17 thought it was 6 a.m. but you tell me.

18 MISS DE BERTODANO: That is right. In the evidence of Mira Tadic,

19 she says, "On the day after, on 17th, we left for Prijedor

20 together". Question: "What time did you leave for Prijedor?"

21 "Early in the morning, 6 o'clock, I think. I think our train

22 left at 6 o'clock". She does not then give a time of arrival

23 and that is at page 4887. But to cross-reference that with the

24 evidence of Dragoljub Savic, who was the station master, when he

25 was going through the lists of trains he cited one which arrived

26 in Prijedor at 6.42 a.m. That was for 23rd May, but we heard

27 from his evidence that the timetables were regular, so I would

28 suggest that that would be the train that was referred to.

1 THE PRESIDING JUDGE: I thought that he had said it was an

2 hour-and-a-half trip, but I have not gone back to his testimony.

3 MISS DE BERTODANO: This simply says it arrives at Prijedor railway

4 station at 6.42. I cannot trace when it leaves Banja Luka, but

5 in any case the page reference is 5350 for that.

6 THE PRESIDING JUDGE: Thank you.

7 MISS DE BERTODANO: The second point related to the evidence of

8 Dragolje Jankovic and time when the goods were left at his

9 flat. Your Honour was quite right in her recollection that when

10 asked, "Do you recollect when that was?" he says, "I do not

11 remember the exact date but it was in May". That is at page

12 5526.

13 There is then some further questions to pin down this

14 time in relation to the conflict in Kozarac. He says this is

15 while the conflict was still ongoing. It then becomes clear,

16 turning over to 5527, that when he talks of the conflict he is

17 not talking about the shelling which he says lasted for three

18 days at the beginning of the conflict, but talking, apparently,

19 about that whole time period. That is at page 5527. That has

20 come back to in re-examination at 5534. The depositing of goods

21 is said to be at a time after he was in the police. That is the

22 closest we can get on his evidence to giving it a date.

23 It is not entirely satisfactory for the Defence

24 purposes, but it is clear from his evidence it was while what he

25 calls the conflict was going on, not three days, but the ensuing

26 events. He says that is sometime in May. We know that cannot

27 be right. He is not specific about a date, but he does say that

28 it was after Dusko Tadic started working at Orlovci checkpoint.

1 That is well documented as being 16th June. So I am afraid that

2 is all the assistance I can give on that point.

3 THE PRESIDING JUDGE: I thought that he had testified that there were two

4 instances regarding goods and the second time he was not there.

5 When he was referring to what he saw, that was the first

6 delivery, and that was in May, or it may have been the picking

7 up of the goods when he was not at home but his parents, because

8 I can remember cross-examination talking about that and he said,

9 "No, you can ask my mother".

10 MISS DE BERTODANO: Because she was there at the time, yes, I recall

11 that.

12 THE PRESIDING JUDGE: Right, so that is the second time. The first

13 time still I thought was in May.

14 MISS DE BERTODANO: I think that that was cleared up by the reference

15 to the conflict and it was clear that there was some confusion

16 in this witness's mind as to, firstly, what the conflict

17 consisted of. We talk of it as the three day shelling of

18 Kozarac. He is talking about a much longer period of time.

19 Secondly, the timing of it, because he is clearly saying it is

20 after the shelling in Kozarac and after the police duties

21 started. But, further than that I cannot take it.

22 THE PRESIDING JUDGE: How long did the conflict last? Was it still

23 going on?

24 MISS DE BERTODANO: The shelling lasted three days, but he appears to

25 be referring to the whole time when these events were going on

26 in Prijedor so he could be referring up to sometime in August or

27 even later.

28 THE PRESIDING JUDGE: What was his relationship to Mr. Tadic or

1 Mrs. Tadic once again?

2 MISS DE BERTODANO: He was related but not closely. I think he was

3 some kind of cousin, but there was not a close family

4 relationship.

5 The third point was the question of Radoslavka Lukic

6 and her working hours. The cite for this is page 4567. I will

7 quote directly from the question: Question: "What were your

8 working hours?" This is from 20th June. "I worked from

9 7 o'clock to 3 o'clock for a while every day for some time, and

10 subsequently there would be such shifts one whole day, one day

11 off, and that is how we worked depending on the needs". Further

12 question: "Did you work in other shifts too?" to which the

13 answer is: "I did. For a while I worked from 7.00 to 3.00,

14 then I worked the whole day or, rather, from 7 o'clock in the

15 morning until the evening hours, that is, 8.00 or 9 o'clock".

16 She then mentions the curfew.

17 THE PRESIDING JUDGE: That is 4567?

18 MISS DE BERTODANO: 4567.

19 THE PRESIDING JUDGE: Does that indicate around that transcript cite

20 when she started? Did she start on June 10th or June 20th?

21 MISS DE BERTODANO: June 20th, and that is indicated on the same

22 page.

23 THE PRESIDING JUDGE: June 20th or thereafter?

24 MISS DE BERTODANO: That is right, yes.

25 Your Honours, I want now to move on to the checkpoint

26 books, the duty lists. The Defence has provided two pieces of

27 very concrete evidence about Dusko Tadic's work in the traffic

28 police. You will recall that the first (which are Exhibits 63

1 to 65) are the duty lists. These were filled in daily after the

2 shifts had been worked and they were filled in by Zoran Cvijic

3 who, for reasons we have heard, was not able to come and give

4 evidence.

5 In addition for this period, we have the checkpoint

6 book, D66, also written by Zoran Cvijic. This is written the

7 day before the shifts take place and in a different format from

8 the duty lists. We could not persuade Zoran Cvijic to come and

9 give evidence, but we did hear in rebuttal from Fikret Kadiric,

10 a Prosecution witness, who confirmed that Zoran Cvijic even at

11 his time was working in the administrative section of his

12 department.

13 We have also heard evidence from those who knew what

14 Dusko Tadic's duties were, because they were with him in the

15 traffic police. The first traffic policeman we heard was

16 Miroslav Brdar who produced these books. He testified, as is

17 borne out by the books, that he worked with Dusko Tadic and

18 Miroslav Cvijic on all the shifts and how they never left the

19 checkpoint during the shifts.

20 We also heard evidence from Duro Prpos, Commander of

21 the traffic police at the time, who supervised the work of Dusko

22 Tadic and his colleagues. Duro Prpos was, in our view, an

23 extremely important witness. We were very disappointed, as the

24 Court is aware, that he could not come to The Hague to give

25 evidence. He wish to do so. He was prevented from doing so,

26 and it cannot be said in the light of that that his evidence is

27 of any lesser value because it was given by video link. He

28 confirmed that the duty lists were accurate, that they were kept

1 according to a system and that he had supervised Zoran Cvijic

2 who wrote the lists.

3 He also gave evidence that, in his position as

4 Commander, he would check the policemen on duty at irregular

5 intervals, sometimes more than once during a shift, to ensure

6 that everything was working properly and that everyone was at

7 their post. I recall Judge Stephen asking him if they could be

8 sure once he had checked that he would not return and he replied

9 that, no, they could not and part of his duties was to make sure

10 they never knew when he was coming.

11 He also obtained and produced at the request of the

12 Court the unredacted versions of these lists which we had been

13 unsuccessful in securing. When these exhibits were produced in

14 their unredacted versions, there was no flaw in their content.

15 We suggest these are genuine working documents. They were in

16 existence at the time of Fikret Kadiric and his own entry,

17 indeed, is in the checkpoint book.

18 We say that it is inconceivable that these two

19 different types of written record are anything apart from what

20 they purport to be. They are records made at the time showing

21 hour by hour who was working where. They agree with each

22 other. The Prosecution, in our submission, has produced no

23 evidence undermining the accuracy of these records, although

24 there has been some speculation on their accuracy. We suggest

25 that the Defence in producing the witnesses who can speak to

26 them has produced overwhelming evidence that they are, in fact,

27 correct.

28 For the second period when Dusko was in the Prijedor

1 police, we also have records. We have heard from Mirko

2 Vujanovic who compiled these records. They cover a period from

3 the 7th August until 9th September when Dusko Tadic moved to the

4 Kozarac police station. During this time Dusko Tadic was no

5 longer working in the traffic police. He was working for the

6 central police station in a security capacity. As with the very

7 similar records from the traffic police, these are written up a

8 day after the shift was worked.

9 Mr. Vujanovic testified that each entry was written in

10 his own hand and that it was taken from the daily schedules

11 drawn up by the shift Commander. He testified that if a

12 policeman had been absent from duty that would have been noted

13 on the schedules, and he would not then have registered him in

14 the book as being present.

15 The Prosecution in their second cross-examination of

16 this witness produced evidence intended to show that these books

17 were unreliable. The first piece of evidence they produced were

18 some patrol reports from the Kozarac police station which relate

19 to the period at the beginning of September and which, to some

20 degree, conflict with the hours in the duty stats.

21 The witness when presented with these said that he had

22 no knowledge of them. He did not know about the workings of the

23 Kozarac police station. He did not even know who the Commander

24 was. He knew nothing about what went on there. He simply could

25 not comment beyond saying that he knew his own station, his own

26 system, and he knew that his own books were accurate.

27 So the situation we have is that we have these patrol

28 reports. We have heard no evidence relating to them. As the

1 Court is aware, we were unable to secure the attendance of

2 witnesses from the Kozarac police station who could have

3 testified on this matter, and who could have explained their

4 provenance and talked about their reliability or lack of

5 reliability. They are simply documents which stand on their own

6 and, in assessing the comparative weight to be given to these

7 and to the duty stats for whom we have had the compiler in Court

8 explaining the system, explaining how it worked, this must be

9 borne in mind.

10 The second piece of evidence that the Prosecution

11 produced was a daily schedule of the type that was referred to

12 by Mr. Vujanovic from which he took the duty lists. This is the

13 daily schedule which is dated 21st August, but which I think was

14 established actually refers to 12th August. We established by

15 looking at other names on the list and we found that everyone,

16 including Dusko Tadic, tied up with the times on 12th August.

17 This was mentioned yesterday by the Prosecution. The

18 theory on it was that although this might have referred to

19 12th August, this gave some indication of the poverty of the

20 system used and that, perhaps, all the reports were simply

21 written up at the end of the month and these got shuffled

22 somewhere at that stage.

23 I would like to remind the Court that when

24 Mr. Vujanovic gave evidence, having said that the date might

25 have been transposed (and that had, in fact, been found out to

26 be likely), he said (and this is page 5439) that the note at the

27 top of the schedule which includes the date (and which I will

28 read out to the Court) would not have been on the schedule at

1 the time. The note says: "The following is page 5 of the daily

2 schedule of shifts at the police station (1) for 21st August

3 1992 with a note that the daily schedules of the police

4 employees were regular". It is signed and stamped.

5 This is the piece of information which Mr. Vujanovic

6 said would not have been on the list at the time. It appears,

7 on the face of it, a very odd piece of information to be on a

8 daily working document. It says that it is page 5 of the daily

9 schedule. It is likely that a date, if there, would have

10 perhaps been on page 1 of that schedule.

11 This piece of material was not on the lists when

12 Mr. Vujanovic wrote them out. It was put on at a date

13 afterwards. He does not know when. It may be that it was for the

14 purposes of this Court. The mistake that was made about the

15 date must have been made at that stage and not at the earlier

16 stage when the lists were being compiled. So I suggest that the

17 confusion which the Prosecution said might have occurred could

18 not have occurred.

19 To talk briefly about the police records in general,

20 it was suggested yesterday that even if they are not actually

21 fabricated for the purpose, which I think is beyond question

22 that they are not, it is very likely that they would be

23 inaccurate, that they have a very questionable value.

24 Firstly, I would suggest that for the fact we have two

25 books, separate books, from the Orlovci checkpoint at least,

26 containing the same information, suggests that they are not

27 inaccurate. It is far less likely that two books would have the

28 same inaccuracies than it is that one would be inaccurate.

1 It is further suggested that even if they are not

2 actually inaccurate, they have very little relevance because

3 policemen could be posted to other places without this being

4 noted. This is supposedly in part substantiated by the fact

5 that the witness, Radoslavka Lukic, said there was a curfew

6 after a certain time and so there would be no vehicles for them

7 to check. I would have thought that if there was a curfew

8 during some or all of this period, you would still need to man

9 the checkpoints to ensure that the curfew was enforced. It is

10 no good laying down a curfew and then sending all the police

11 home.

12 It is further said that the police were all engaged in

13 cleansing activities anyway. It may be true that many of the

14 regular police were engaged in these activities. There is no

15 evidence that this is true on any large scale of the traffic

16 police. If we look at the evidence that we have about members

17 of the traffic police, Duro Prpos, we heard in rebuttal, that a

18 witness had seen him at the SUP in Prijedor on a day when he was

19 taken there with a bus load of other prisoners.

20 We have heard that Zeljko Maric was seen when

21 prisoners were being separated and taken to the camps. Mr. Reid

22 told us that one of the names which appeared on the unredacted

23 list -- I believe the name was Bosko Grabez -- was a person

24 about whom statements had been made in connection with

25 atrocities.

26 What about the rest of these policemen? We have had

27 no witness, including Mr. Reid, who perhaps we can assume would

28 have told us about these things if he had read about them in

1 statements since he told us about Bosko Grabez, who said that

2 any other of these traffic policemen who are relevant to our

3 case had been involved in these events.

4 In particular, let us look at the two colleagues of

5 Dusko Tadic, Miroslav Brdar, who came to the Court, Miroslav

6 Cvijic. They have not been associated in this trial with any of

7 the events in any way and they were the ones who saw Dusko Tadic

8 day by day and worked with him day by day. What were they

9 doing? Were they staying at their checkpoint and holding the

10 fort while Dusko Tadic went off to the camps, or did they

11 perhaps go along with him and nobody happened to see them

12 there? Or is it more likely, in fact, that they were entirely

13 unconnected with these atrocities and that is why we have heard

14 nothing about them? They were unconnected with these

15 atrocities, as was their colleague Dusko Tadic.

16 That is all I intend to say on the police books,

17 unless your Honours have any questions?

18 THE PRESIDING JUDGE: I have one question and it relates to

19 Mr. Prpos's testimony. As I recall, he testified that the first

20 book was filled out by his deputy, and that he said it was done

21 with some rhythm, one day on two days off.

22 MISS DE BERTODANO: That is right.

23 THE PRESIDING JUDGE: Is that a mistake on his part?

24 MISS DE BERTODANO: There is a rhythm to the shifts in that once one

25 has --- what he said, I think, was that once had seen how the

26 shifts work for a few days, one can carry on in the same

27 pattern, because if someone is working say, 7.00 to 3.00 one

28 day, then they will be on the 3.00 to 9.00 shift the next day

1 and the 9.00 to 7.00 shift the following day, that is the sort

2 of pattern that is followed. At some stage they then change to

3 12 hour shifts which they rotate, so that they have 12 hours on

4 and 24 off. So there is some kind of pattern to it.

5 THE PRESIDING JUDGE: But it is not the rhythm that he described, one

6 day on, two days off?

7 MISS DE BERTODANO: That is not right, and I do not remember him

8 saying it in those words, unless he was simply giving an

9 illustration of how patterns occur. But since he had the books

10 in front of him, I think it is unlikely that he would have got

11 that wrong knowing that these books were in front of him, that

12 he had just been looking through them and that they clearly did

13 not say one day on, two days off, although there was a rhythm.

14 THE PRESIDING JUDGE: If he did say that, then what should I conclude

15 from that, if he did say that?

16 MISS DE BERTODANO: If he did say that, I would suggest he is using

17 that as an example of the sort of rhythm that can be set up, the

18 sort of method that can be set up, but not the method that was

19 actually used there.

20 THE PRESIDING JUDGE: OK. I do not have the transcript cite and it

21 is just something that I recall actually from my notes.

22 The other question relates to the uniforms or the

23 uniform that Mr. Tadic wore. Mrs. Tadic testified that he came

24 home on 16th wearing his blue uniform.

25 MISS DE BERTODANO: Police uniform.

26 THE PRESIDING JUDGE: Yes, and Mr. Brdar or officer Brdar testified

27 that he wore, as I recall, the uniform from before the war,

28 light grey uniform, he, Mr. Brdar, and Mr. Tadic wore a

1 camouflage uniform. Let me see if I can remember the concerns

2 that I had. Mr. Maric also testified that the policemen at the

3 checkpoint wore grey uniforms before June or July, and after

4 that they got camouflage uniforms. The gentleman who was

5 delivering food for the 43rd Brigade testified that he saw

6 Mr. Tadic in a blue uniform. I thought Mr. Tadic testified that

7 he typically wore a camouflage uniform, unless his other was in

8 the cleaners.

9 What should I try to draw from these uniforms, if

10 anything? Just people were mistaken or what? You tell me, if

11 it is as I suggest it is.

12 MISS DE BERTODANO: Mr. Tadic's evidence was that he had a camouflage

13 type of uniform given to him by his brother ----

14 THE PRESIDING JUDGE: I understand ----

15 MISS DE BERTODANO: --- and that he only had one police uniform.

16 I think it was the other way round, that he wore the police

17 uniform when he could and when it needed to be laundered he

18 would wear the camouflage uniform. There are different types of

19 police uniform, police camouflage and the plain police uniform.

20 I think his evidence was that he was wearing the plain police

21 uniform or his brother's camouflage uniform.

22 THE PRESIDING JUDGE: What about, if I am correct, about Mr. Brdar?

23 I may have that backwards too. If he testified that Mr. Tadic

24 testified wore a camouflage but he wore a light grey, and if

25 Mr. Maric testified that they wore light grey until June or July

26 and then they got camouflage, what do I do with that? Do

27 I accept their testimony?

28 MISS DE BERTODANO: What I would say is that they each remembered one

1 of the uniforms that Tadic wore rather than both of them, rather

2 than the fact that he had two different ones. It is likely,

3 I suppose, after this time that a witness may not remember that

4 he had seen Dusko Tadic in two different uniforms, but only

5 called to mind one of the ones that he had seen him in.

6 THE PRESIDING JUDGE: Well.

7 MISS DE BERTODANO: Does that answer your question?

8 THE PRESIDING JUDGE: Yes, it does. I can assume that they just did

9 not recall. But, I mean, I heard Mr. Kay talk at length about

10 statements where a person said one thing and they did not say

11 the second thing so, therefore, you can assume, you know, that

12 maybe they were lacking in candour.

13 MISS DE BERTODANO: I would think that this is not a problem of

14 candour but merely of recollection, that there is evidence that

15 he had both of these uniforms and these witnesses, well,

16 Mr. Brdar would have seen him in both and Mr. Maric might not

17 have seen him in both, or had simply forgotten that he had the

18 second one. I would not think that there is a problem about

19 their honesty on that.

20 THE PRESIDING JUDGE: Mr. Maric testified that he worked with him but

21 most often he said they were on different shifts.

22 MISS DE BERTODANO: That is right.

23 THE PRESIDING JUDGE: In fact, he never worked with him if you look

24 at this spreadsheet.

25 MISS DE BERTODANO: That is right. I think he was wrong on that,

26 that it was just the takeover of shifts.

27 JUDGE STEPHEN: Before you leave, can I ask you two questions? The

28 first one is, is there any evidence at all about traffic police

1 on duty at checkpoints anywhere going off on so-called higher

2 duties?

3 MISS DE BERTODANO: There is no evidence in this trial of that

4 happening at all. I stand corrected if I have missed something.

5 THE PRESIDING JUDGE: Except for Maric, if you accept the

6 Prosecution's and Mrs. Klipic's testimony?

7 MISS DE BERTODANO: That is right. There has been that suggestion

8 that he was sorting out people, but this may not have been while

9 he was doing traffic duties, we do not know, because that was

10 considerably earlier.

11 JUDGE STEPHEN: Is there any explanation in the evidence of why you

12 had three grown men undertaking the day in, day out, the

13 checkpoint duty?

14 MISS DE BERTODANO: There is no evidence on that and I think the

15 question was not asked. I can merely speculate that it was felt

16 that there was a dangerous situation in the area.

17 JUDGE STEPHEN: But there is no evidence about it?

18 MISS DE BERTODANO: There is no evidence. The question was not put.

19 JUDGE STEPHEN: Thank you.

20 THE PRESIDING JUDGE: I thought that the three police officers would

21 check licences and look for weapons, was it, or was it, and then

22 the two military, normally there were two military also, so

23 there were five people ----

24 MISS DE BERTODANO: That is right because they dealt with military

25 vehicles and the traffic police dealt with civilian vehicles.

26 THE PRESIDING JUDGE: But there did not appear to be a lot of

27 traffic. I heard each of the witnesses who served at the

28 checkpoint say they never saw the transporting of detainees or

1 bus loads of people. I also wonder what they were doing.

2 MISS DE BERTODANO: It may be that there was less traffic at the

3 time, but that it was potentially of a more dangerous nature in

4 a conflict situation, but I can only speculate because this was

5 not actually in evidence.

6 THE PRESIDING JUDGE: You are going to move to another area?

7 MISS DE BERTODANO: Yes. I am now going to move on to the hours

8 between these police duties. We have accounted for the hours in

9 the book. What about the time when he was not on duty? We have

10 heard evidence from Mira Tadic that during that time he lived in

11 the apartment at Pecani after they had moved into it on 27th.

12 We have heard evidence, importantly, from Mr. Brdar

13 who said (and the cite for this is page 4469) when policemen

14 were on duty they had to be at home or at least contactable in

15 case they were needed in an emergency. They were not allowed to

16 travel around without permission.

17 We have heard evidence from Nada Vlacina who visited

18 the family in Pecani regularly. She also lived in Pecani, a

19 near neighbour of theirs, and also of Witness D who said she saw

20 him several times a week in Prijedor during this period. Jelena

21 Gajic saw him often after about mid June in Prijedor. There is

22 also evidence such as the visits of Ljubo Tadic to the family in

23 Pecani. The Prosecution’s witnesses, Adil and Nasiha Jakupovic,

24 saw him in Prijedor on occasions when he was not on duty.

25 We have several sources of information from people,

26 particularly Nada Vlacina, Witness D, normal women who had no

27 connection with events, no reason to lie about this. Naturally,

28 they cannot testify to every minute that he was not on duty. It

1 would be unnatural if they could. That can only be done by his

2 close family, and that is what Mira Tadic says.

3 So we would suggest that the evidence that Dusko was

4 working in the police, was living in Prijedor during this

5 period, is very strong evidence and, in particular, that his

6 recorded hours of work are a substantial counter to the

7 allegations that have been made regarding this period.

8 I am going to move on to events after September 9th

9 when Dusko Tadic moved to Kozarac to begin his work there. We

10 have heard that he worked part-time for the police there until

11 19th November. We have heard evidence from Dusan Vajagic and

12 Witness Y who were his colleagues there. But we have also heard

13 that during the autumn of that year he was increasingly engaged

14 in works in the locality, in particular, in the Local Commune of

15 which he was Secretary.

16 We have heard evidence from Witness A, from Stojan

17 Smoljic, as to the work he did there bringing back life to

18 Kozarac. He also became President of the Kozarac branch of the

19 SDS. These two jobs, Secretary of the Local Commune, President

20 of the SDS, are closely linked to each other. These two

21 institutions are working hand-in-hand. They are housed in the

22 same premises, and it appears that in both the Party and the

23 Local Commune the priority in this locality is the

24 reconstruction of Kozarac as a viable place to live.

25 THE PRESIDING JUDGE: May I ask you a question? Did Mr. Tadic work

26 as a police officer until November 19th?

27 MISS DE BERTODANO: November 19th, I think, is the date that he gave

28 as the end of his police duties in Kozarac.

1 THE PRESIDING JUDGE: So then from September 9th through November

2 19th he would have a regular assignment as a police officer?

3 MISS DE BERTODANO: That is right, but the work was part-time rather

4 than full-time.

5 THE PRESIDING JUDGE: What do you mean by that? That was really my

6 question.

7 MISS DE BERTODANO: We do not have evidence, your Honour, in this

8 court.

9 THE PRESIDING JUDGE: Do we not have spreadsheets?

10 MISS DE BERTODANO: Not for Kozarac, only for Prijedor.

11 THE PRESIDING JUDGE: OK, so we do not have.

12 MISS DE BERTODANO: But we do know that he was very much engaged in

13 the work of the Local Commune and SDS and that as the year went

14 on this took up more and more of his time.

15 THE PRESIDING JUDGE: Did the gentleman Y, I think, not testify that

16 he worked with him as a police officer until November?

17 MISS DE BERTODANO: That is right, and Dusan Vajagic.

18 THE PRESIDING JUDGE: Not full-time, you are saying.

19 MISS DE BERTODANO: Not full-time in that he was also doing all this

20 other work as well.

21 THE PRESIDING JUDGE: How can we determine then how much time he did

22 for both?

23 MISS DE BERTODANO: We only have the evidence of witnesses. We do

24 not have documentary evidence with regard to this. We were not

25 able to get Goran Babic, his Commander, to come and give

26 evidence.

27 THE PRESIDING JUDGE: Mr. Dasic, was it -- who is the gentleman in

28 charge? He testified that from October until December Mr. Tadic

1 left Prijedor with him in the morning and then spend the day

2 inventorying housing, is that correct?

3 MISS DE BERTODANO: That is right, your Honour. That was a sort of

4 commission of three people which sometime in October was started

5 up.

6 THE PRESIDING JUDGE: Until December 1st or 2nd?

7 MISS DE BERTODANO: Again some date in December.

8 THE PRESIDING JUDGE: Was it his testimony that Mr. Tadic would leave

9 with him from Prijedor 8.30 in the morning usually, 8.00 or

10 8.30.

11 MISS DE BERTODANO: It was not every day. It was not every day, but

12 when they did work that was the sort of hours that they would

13 work. That is as I recall his testimony.

14 THE PRESIDING JUDGE: I was thinking that it was every day because

15 Judge Stephen, I think, asked if he had some records. Of

16 course, that does not mean that it is every day that he worked.

17 Mr. Smoljic, what was his testimony regarding Mr. Tadic? Do you

18 remember him? He testified via video.

19 MISS DE BERTODANO: That is right, your Honour. He was the witness

20 who had moved as a refugee to Kozarac on October 27th, if

21 I recall it rightly, with his family. He said that Dusko Tadic

22 had helped him to find somewhere to live and that Dusko Tadic

23 had helped him by giving him some work in the Local Commune. He

24 talked about Dusko Tadic's work in the Local Commune.

25 So, President of the SDS, Secretary of the Local

26 Commune, and both these institutions being very closely linked.

27 Indeed, we have heard from Jozo Popovic, a refugee from Velika

28 Kladusa, who succeeded him in both positions so that the

1 position of Secretary of the Local Commune and President of the

2 SDS is still in the same hands. We have heard what kind of work

3 these jobs involved.

4 The Prosecution case is that Dusko Tadic was heavily

5 politically involved during this time. If we look to what Jozo

6 Popovic says on this, he agrees that the SDS was a political

7 party but he gives no evidence of it engaging in any political

8 as opposed to practical activity. I quote at transcript cite

9 5459: "The SDS is a political party which means that it is

10 engaged in political activity". Then he says: "Within that

11 scope it proposed certain personnel solutions for the Local

12 Commune. It assessed the political situation and through its

13 representatives in the executive bodies of the Local Commune it

14 would implement that policy". He goes on to talk about the

15 implementation of that policy, and this involves the examples he

16 gives, such things as accommodating people, setting up education

17 and health services, organising supplies of water and

18 electricity and giving humanitarian aid.

19 These are not heavily political activities to be

20 involved in. This is why I say that the two institutions are

21 very closely linked. What they are both doing is, in fact,

22 bringing help to Kozarac.

23 We have also heard evidence from Witness Y, also a

24 refugee. He was a member of the local board of the SDS. He

25 told the Court he was not interested in politics. He had only

26 become a member of the SDS in August 1992. He said that Dusko

27 Tadic did not make political speeches. He said at page

28 4700: "All we were interested in was work, nothing else. All

1 we wanted to do was to bring life back to the Local Commune of

2 Kozarac". Again, practical, not ideological. He said as the

3 reason that Dusko Tadic was chosen for these positions was

4 "because I did not know these people. He knew everyone from

5 before so he was most suitable to deal with them, to have all

6 the right contacts. He knew the people, knew the area and that

7 is why he was elected as chairman". That is at page 4703.

8 There was some attempt in cross-examination to make

9 Witness Y say that Dusko Tadic was very closely connected with

10 the SDS in Prijedor. These attempts were unsuccessful and he

11 simply repeated that they needed someone as President who was

12 familiar with the area.

13 We also heard evidence from Dusan Vajagic who has been

14 mentioned earlier today, also a refugee from Velika Kladusa,

15 also joined the SDS for the first time when he got to the area.

16 Indeed, he became the Secretary of the SDS some month after he

17 arrived. This gives some counter to the suggestion that these

18 posts were handed out to people who had been active in the

19 conflict in the area.

20 THE PRESIDING JUDGE: What was his name again?

21 MISS DE BERTODANO: Dusan V-A-J-A-G-I-C. He was the rather tall and

22 thin man with glasses.

23 THE PRESIDING JUDGE: That was the man that I was remembering, but

24 I do not see the name. That is what I am looking for. Go

25 ahead.

26 MISS DE BERTODANO: He gave evidence right next to Witness Y on the

27 list, if that is of assistance.

28 THE PRESIDING JUDGE: Thank you. I am sorry. Go ahead.

1 MISS DE BERTODANO: He said at page 4723: "I joined the SDS so that

2 I could help the population who had moved there in the first

3 place, to have a contact with Prijedor, because somebody had to

4 represent that population or ask for something on behalf of the

5 population in Kozarac". Again he talks about SDS meetings,

6 building the local community.

7 Of course, there was contact with these organisations

8 and authorities in Prijedor, but there is nothing sinister in

9 that connection. There was no money in Kozarac. The only help

10 that they could get was from Prijedor. So the fact that they

11 had to have contact with Prijedor, to ask them for aid, does not

12 automatically show that this was an organ which was in the hands

13 of the Prijedor authorities. Indeed, we have heard much

14 evidence that Prijedor was very resistant to the whole aims of

15 rebuilding Kozarac.

16 So we have three witnesses here, two of them achieved

17 positions in the SDS, one in the Local Commune, who do not fit

18 with the Prosecution profile of people who were given such jobs,

19 that is, people who have been active in the conflict and are

20 being rewarded for their activity. The Prosecution have said

21 only a person who was absolutely loyal to the Serb people could

22 have held such positions. I put before you in that context

23 Dusan Vajagic who had only joined the SDS in August 1992 and was

24 almost immediately made Secretary.

25 These three witnesses, we submit, are ordinary

26 people. They are refugees. Certainly, Dusan Vajagic and

27 Witness Y took no interest in politics. Their only reason for

28 being in the SDS was that they wanted to rebuild Kozarac which

1 has constantly been asserted.

2 THE PRESIDING JUDGE: Mr. Vajagic, was he not an officer in the SDS

3 in Velika Kladusa before he came? That is a different person.

4 MISS DE BERTODANO: That was Mr. Popovic, your Honour, whom

5 I mentioned first.

6 THE PRESIDING JUDGE: But he was an officer of the SDS, President,

7 was it?

8 MISS DE BERTODANO: That is right, in Vela Kladusa.

9 THE PRESIDING JUDGE: Then he came to Kozarac in August or os?

10 MISS DE BERTODANO: That is right, your Honour.

11 JUDGE STEPHEN: Apart from these refugees, do we have any information

12 about how many people were living in the unfortunate town of

13 Kozarac at this stage?

14 MISS DE BERTODANO: I do not know that we do. I cannot think of it

15 offhand. There have been certain ----

16 JUDGE STEPHEN: I mean, the pictures make it look like utterly

17 desolate.

18 MISS DE BERTODANO: That is right. There are some surrounding areas

19 included in this and, in fact, these refugees did not actually

20 live in Kozarac proper.

21 JUDGE STEPHEN: No.

22 MISS DE BERTODANO: Many of the villages around are less devastated

23 than the centre of Kozarac which you have seen so many pictures

24 of.

25 JUDGE STEPHEN: Yes, I suppose that is it, thank you.

26 MISS DE BERTODANO: We have spoken already of the commission

27 recording the deserted houses, heard extensive evidence from

28 Mr. Dasic on this. We have heard that Dusko Tadic was not even

1 head of this commission reviewing properties, this three-person

2 commission. So where is all this power that is supposedly

3 invested in him?

4 Again during this time he has remained living in

5 Prijedor. The same witnesses have said they continued to see

6 him. Mr. Dasic has said, as your Honour pointed out, that he

7 was taken from Prijedor to Kozarac. Mr. Smoljic gave evidence

8 that he saw Dusko Tadic arriving by bus from Prijedor. Again,

9 it has been made clear to the Court by both those witnesses as

10 well as others that he had no means of transport at this time.

11 THE PRESIDING JUDGE: Did Mrs. Tadic testify that he took the bus

12 also and would come back either by bus or hitch a ride, come

13 back with Babic, rather, or hitch a ride.

14 MISS DE BERTODANO: I think that she did, although I cannot give you

15 the cite for it, but I think that is what she said. Certainly

16 the transport situation was talked of. I forget her exact

17 answer on how he travelled, but it was certainly made clear that

18 he had no car.

19 THE PRESIDING JUDGE: Did she mention Mr. Dasic or did she say he

20 travelled by bus?

21 MISS DE BERTODANO: I do not recall her mentioning Mr. Dasic in

22 evidence.

23 That covers the period in question. Just a few more

24 words on the two members of his family who covered so much of

25 this period. Firstly, his wife, Mira Tadic, who was with him

26 throughout this time has confirmed the details of his alibi; his

27 brother Ljubo who has given evidence relating particularly to

28 those days in Banja Luka before he returned to Kozarac when the

1 two Tadic brothers were constantly in each other's company.

2 It is easy to say that because these two witnesses are

3 so close to the defendant they would, of course, support his

4 alibi, and their evidence is in some way tarnished by this

5 relationship with the defendant. It is a difficulty for the

6 Defence that in many cases of alibi the person that the

7 defendant spends the most time with is a member of his family.

8 This suggestion by the Prosecution is a very easy one to make in

9 any of these kinds of cases, but I would suggest that after

10 cross-examination of these witnesses their evidence has remained

11 largely intact, and that their evidence should be seen for what

12 it is, strong evidence supporting Dusko Tadic's case.

13 Of course, they have a great interest in supporting

14 him, no one could possibly deny that. It would be unnatural if

15 they did not have that interest. But while the fact that they

16 are such close members of his family must be taken into account,

17 we suggest that it cannot alone show in any way that they have

18 been lying in the evidence that they gave before this Court.

19 All this evidence is a strong support for Dusko

20 Tadic's alibi, for his assertion that he did not commit the

21 crimes during this period, that he was involved in a large

22 number of other activities which consumed his time and his

23 energy, and that even had he had the means of transport, which

24 he did not, to roam around the countryside, go to Omarska, go to

25 the camps, he was, in fact, living, working and occupied

26 elsewhere when these crimes were committed.

27 I would like to turn finally to the letters and

28 interviews which Dusko Tadic made earlier before he gave

1 evidence. We have heard a bit from the Prosecution about the

2 contradictions between what he said previously and what he says

3 now.

4 THE PRESIDING JUDGE: Excuse me. Before you go into that subject,

5 how much additional time do you need?

6 MISS DE BERTODANO: 20 minutes.

7 THE PRESIDING JUDGE: Mr. Wladimiroff and Mr. Orie, tell me again how

8 much time you need?

9 MR. ORIE: Your Honour, I think I need approximately half an hour.

10 THE PRESIDING JUDGE: Mr. Wladimiroff?

11 MR. WLADIMIROFF: I have been shortening while listening -- I have

12 limited it down to three quarters of an hour.

13 THE PRESIDING JUDGE: If we go until 6.30 will you be able to

14 complete? That will be an hour and 15 minutes? Half hour, you

15 said 20 minutes, that is less than an hour.

16 MISS DE BERTODANO: But there is the half hour, the 20 minutes and

17 the three-quarters of an hour.

18 THE PRESIDING JUDGE: What does that add up to? The interpreters can

19 add it up real well! An hour and a half. Can we finish in an

20 hour and a half?

21 MISS DE BERTODANO: We could try.

22 THE PRESIDING JUDGE: Can we go -- you cannot go?

23 MISS FEATHERSTONE: They are saying until 6.00.

24 MR. ORIE: Your Honour, I would have to make phone calls since my

25 children are waiting to celebrate my birthday that was last

26 Saturday. I will do this.

27 THE PRESIDING JUDGE: Tell them to come over here and we will all

28 celebrate together. Happy birthday. 6 o'clock. If we go to

1 6.00, I do not know whether we are going to finish tomorrow.

2 Let us do what we can. I do not want to rush you, but I do not

3 know when we will have time to finish this. Tomorrow we will be

4 adjourning at 1.00. Friday afternoon is the only time.

5 MISS DE BERTODANO: I will be as brief as I can. I hope to finish by

6 5.30.

7 THE PRESIDING JUDGE: No, I do not want to rush you. No, take your

8 time, take your time. We have spent months so let us not rush

9 it. I am just telling you the schedule. We need to adjourn at

10 1.00. We will not be here on Thursday. We cannot use the

11 courtroom on Friday morning. When can we begin to use it on

12 Friday?

13 MISS FEATHERSTONE: Probably about noon.

14 THE PRESIDING JUDGE: Noon, perhaps noon.

15 THE PRESIDING JUDGE: So that is the schedule. You may go ahead.

16 MISS DE BERTODANO: Your Honour, I was just talking about the

17 allegations that Dusko Tadic has made many contradictory

18 statements about his movements during this time. I suggest to

19 the Court that when they read the interviews and the letters at

20 their leisure, that what is in fact striking is not the minor

21 deviations which could be expected in this kind of covering of

22 six months, but the overall broad consistency of what he said

23 not only from the German interviews onwards but right back as

24 far as his work report written in 1993, long before he could

25 have known that he was going to need to produce this kind of

26 evidence.

27 JUDGE STEPHEN: I was going to ask you in any event what comments

28 you had to make on the work report. I would like to hear you on

1 that and I would like to suggest that it is not really right, is

2 it, to say that at the time that he prepared the work report,

3 which was in the second half of '93, he already had been

4 interviewed by the woman who made the German film, had he not?

5 MISS DE BERTODANO: He had not been interviewed by her, although she

6 had made a film and taken shots of him at that time.

7 JUDGE STEPHEN: Allegations had been made in the film about him.

8 MISS DE BERTODANO: What I suppose I am saying is he could not have

9 possibly have known that he was going to be arrested in

10 connection with anything that had gone on at this time. Nobody

11 else from the area had been threatened or arrested and, as it

12 happens, none of them have to this date. He could not have

13 known at that time what was going to happen in Munich, although

14 it is true that he may have had some knowledge of the

15 allegations made against him.

16 If I may I will deal with that last, because I think

17 that is how it fits in the best.

18 JUDGE STEPHEN: Yes, thank you.

19 MISS DE BERTODANO: So our suggestion is that it is not the defendant who

20 has tailored his story to fit the evidence available as it comes

21 in. This is a defendant who, right from the beginning, has

22 wanted to speak, has been eager to speak, eager to clear his

23 name, has requested that people interview him. It is of course

24 a daunting task to recollect six months worth of dates and

25 times, and I would suggest that no one could do it with absolute

26 accuracy. What he has done is piece together his movements over

27 that period as accurately as possible, and evidence has come up

28 which has enabled him to be more accurate. So, for example,

1 when we got the duty stats, the police reports, confirming he

2 started work on 16th June rather than 17th June that was

3 something that he was then able to say, "That is right, I did

4 get the date wrong." We would suggest that that is not a

5 defendant tailoring his evidence. It is quite understandable

6 that one gets a date slightly wrong and then, when presented

7 with documentary evidence, can correct that.

8 From the start the story has been the same. We have

9 the family leaving Kozarac in April and May mentioned in the

10 work report, in the first Prosecution interview, in the way it

11 was told in evidence. The same names in the Prosecution

12 interview are mentioned: Trivo Reljic, Jelena Gajic. We have

13 Dusko Tadic's escape from Kozarac, 23rd May. Work report, he

14 says, "One day before fighting I left for Banja Luka", so on with

15 the German interview, both Prosecution interviews and in

16 evidence.

17 In all his three interviews, and I refer to one German

18 and two Prosecution interviews, he speaks of visiting Kozarac to

19 his family house. He is hazy about the times which this has

20 happened. He has cleared this up in evidence. We suggest there

21 is nothing sinister about that. These are not dates on which

22 major allegations are made. He has not tailored his evidence to

23 fit the dates of indicted incidents. There is no indicted

24 incident in these early days of June. It is simply that, over

25 time, his recollection has become clearer as to what his

26 movements were.

27 The start of his work in Prijedor I have already

28 alluded to. He started, he says, on 17th June in many of his

1 interviews. Only in evidence does he say it was 16th June. I

2 would like to remind the Court that, despite what the

3 Prosecution has said, we did not have the duty stats at the time

4 that he last was interviewed by the Prosecution. We had simply

5 the letter from Simo Drljaca which was written on a single sheet

6 of paper listing his apparent duties. It appears from the

7 transcript of the interview that at the time he was asked about

8 it, Dusko Tadic was not actually looking at the letter. In any

9 case, he said in evidence that he had scant regard for this

10 document and, knowing what we do about the person who signed it,

11 I think that we can understand that he may have felt that this

12 was not a proper official document or one to which he could

13 attach great weight.

14 We have heard from the Prosecution about the different

15 things he said when he arrived in Banja Luka: where he stayed,

16 who he was with. He has said throughout in all three interviews

17 that he spent either the first or the first two nights with

18 Radovan Vokic, scarcely a substantial difference. He spent the

19 next nights with Martin and Mileva Dzaja when he was not in

20 Banja Luka. They are not clear about the dates when he was in

21 Banja Luka. There may be some lack of clarity. The broad

22 picture remains the same.

23 We have heard in his German interview and his first

24 Prosecution interview him say he went to Trnopolje camp, five

25 times he says in his German interview, four in his Prosecution

26 interview. Right from the beginning in Germany he admits he

27 went to that camp five times. There is no attempt to avoid this

28 even from the beginning. Each time he has named the time that

1 he went with Jovo Samardzija. He could not possibly have known

2 that Jovo Samardzija would come and give evidence to that unless

3 it was true.

4 We have talked early today about the uniforms again.

5 He talks about them in all three interviews. In each one we

6 hear about the camouflage clothes given by Ljubo. He says in

7 his German interview: "I did not own a camouflage uniform."

8 This does not necessarily exclude those clothes. We have heard

9 in evidence he did not consider it proper uniform. They were

10 simply clothes that you wore over your ordinary clothes. He

11 talks as well of the police uniforms that he wore.

12 We have heard about the two uniforms or the one

13 uniform from Milan Kusota. They were given in a bundle with the

14 rifle. Well, whether there was one or two I would suggest is

15 irrelevant. The defendant has said that he never wore them.

16 They were too small for him. He never used them. He may have

17 forgotten there were two, there was one. I suggest it does not

18 matter.

19 We have the weapons, in particular the rifle

20 certificate. In each interview he said that he had had the same

21 weapon, the automatic rifle and the pistol. The rifle

22 certificate was discussed in the German interview. His answer

23 to the question about it was: "I did not receive any weapons

24 from the staff of the Territorial Defence." Dusko Tadic says

25 that the certificate was not shown to him at that time. The

26 statement that he was making was true. On the evidence now he

27 did not receive weapons from the staff of the Territorial

28 Defence. The Prosecution have produced a witness, whose name

1 I forget, to say that he was at the interview and there was some

2 question with him about whether documents had been produced.

3 His answer was, "They were always produced", but he was not

4 specific about this case.

5 THE PRESIDING JUDGE: Did Mr. Tadic actually testify that that

6 certificate had not been shown to him?

7 MISS DE BERTODANO: That that certificate had?

8 THE PRESIDING JUDGE: Had not been shown to him.

9 MISS DE BERTODANO: That is what he said, yes. He said in the German

10 interview it was not shown to him.

11 THE PRESIDING JUDGE: He said that in the German interview or did he

12 say it in court when referring to the certificate that it was

13 not shown to him?

14 MISS DE BERTODANO: I have not actually got it down. I know he said

15 it either in a later interview or in evidence that it was not

16 shown to him at the time. My recollection is that he said it in

17 evidence. I may be wrong on that.

18 THE PRESIDING JUDGE: You can move ahead and look for the citation.

19 MISS DE BERTODANO: I will find you the cite on that.

20 THE PRESIDING JUDGE: I did not think it was that clear. I thought

21 I had asked Mr. Tieger that question, and then they produced the

22 German officer who said it was shown to him. I do not remember

23 one way or the other because it was not clear to me, that is why

24 I had asked him.

25 MISS DE BERTODANO: All I can say I recall is the discussion coming

26 up, whether it was in evidence or in other interview I cannot

27 recall, but I shall look that up. Then we have the question of

28 where the certificate comes from. He said he had two

1 certificates, one from Slobodan Bokan in Prijedor and the one we

2 have in court which is from his brother Ljubo Tadic. It is

3 clear that the one we have in court cannot come from Prijedor

4 because it says at the top: "Territorial Defence, Banja Luka".

5 So, I suggest that when he was shown the original certificate he

6 took it to be something that it was not, a document that he had

7 got from Prijedor. He did not read it carefully or he could not

8 have said that it came from Prijedor when it very clearly

9 said "Banja Luka". He then said in evidence that he got it from

10 Ljubo and filled it out himself, and that it was a separate one

11 that he had got from Prijedor. He gets some details wrong. He

12 gets some dates wrong. Who would not? Dusko Tadic in evidence,

13 and I quote at page 6137: "I may be wrong about the dates, that

14 is true, I may be wrong about some description, whether a sleeve

15 was blue or whether a uniform was blue or yellow, but I know

16 where I was all my life. I cannot forget that and I cannot be

17 wrong about whether I was in some location where I had never

18 been in my life."

19 If I now turn finally to the work report, there was a

20 lot of discussion about this document. There was a list of

21 people it was to be sent to, including President Karadzic. It

22 was apparently not sent to him or any of the other people on the

23 list, apart from being given to the authorities in Prijedor. We

24 have had a lot of quotes from that document put to the

25 defendant. We have heard a lot about what he said about other

26 people, what he said about the authorities. Our suggestion

27 about this is that it is a rather pathetic document. It is

28 self-aggrandizing, it makes this defendant out to be important,

1 and it shows a great degree of self-importance in the document.

2 We must recall the context in which the document was

3 written. At this stage Dusko Tadic felt that he was being

4 hounded out of Prijedor. He had been arrested or had attempts to

5 arrest him several times. He had been sent to the front at

6 Gradacac. He was having enormous problems with the authorities

7 who clearly did not want him around. He saw himself as being

8 someone who had been wronged, and he gives this long list of

9 grievances against all the persons who wronged him. We suggest

10 that the main point of the document is not that, that that can

11 be explained by his situation at the time and, think what you

12 might of it, it does not make him a war criminal whatever it

13 says about his feelings and his character at that time. We

14 suggest the main point of it is what it says about where he was

15 during these events in Prijedor.

16 Now this is a document intended for those in authority

17 in Republika Srpska, including President Karadzic, at least at

18 the time that he wrote it, even if it was never sent. It is not

19 sent to people who would find much to condemn had he

20 said, "I have taken part in these events". On the contrary,

21 even if he were not going to say, and it would be, we concede,

22 unusual to say that he had actually committed atrocious acts in

23 the camps, it would surely have helped his cause to say that he

24 had taken part in what the people he wrote it to clearly saw to

25 be a commendable conflict. He was being sent to the front to

26 join the war effort.

27 On the Prosecution evidence he had done a great deal

28 for the war effort already. Why did he not say that? Even if

1 he was not going to talk about significant events, which the

2 Prosecution have alleged, why did he not say that he helped with

3 the fighting in Kozarac? Why did he not say that he helped in

4 the camps? We suggest the reason that he did not say this was

5 because it is the truth, that he was not there. He is not at

6 this stage providing an alibi for himself. He is providing a

7 true account of those events.

8 The quote that I would read to you from it which, we

9 suggest, is the significant part of that letter, is on pages 7

10 to 8 of that report in which he says: "Fighting in Kozarac

11 started on 25th May 1992. One day before that I had left for

12 Banja Luka where my family lived as refugees in an abandoned

13 house living off our last savings. I never took part in the

14 attack on Kozarac because, despite everything, when I had been

15 living among these people for 35 years I still did not see why

16 I should have to shoot at my former neighbours when surely

17 things would change with time, because truth will out and

18 because I did not see why all that had to end with destruction

19 and devastation in setting up camps and looting other people's

20 property disregarding who the previous owner was."

21 THE PRESIDING JUDGE: Does it say in that work report that the

22 fighting started on 25th and he had left the day before?

23 MISS DE BERTODANO: It does, your Honour.

24 JUDGE STEPHEN: That is what makes it so important, in my view, to

25 know to what extent, if any, the accused was at that time of

26 writing aware of allegations that he had committed war crimes,

27 so that it might be said that he was, in effect, writing that in

28 the light of those sorts of allegations and very carefully

1 avoiding any suggestion that he had done what he had done?

2 MISS DE BERTODANO: I do not recall whether he was asked in evidence

3 whether he knew about the allegations at the time. I also do

4 not recall the date of the Monika Gras film. I do not know if

5 I can get assistance from the other side of the room there.

6 JUDGE STEPHEN: I think we know that that was early in '93. There

7 was also, I think, some evidence from the accused of sitting in

8 a cafe in Banja Luka and joking with a friend over ridiculous

9 allegations of war crimes by Tadic.

10 MISS DE BERTODANO: That was evidence not by the accused but by

11 Nikola Petrovic who said he had been ----

12 JUDGE STEPHEN: He had been with the accused?

13 MISS DE BERTODANO: That is right, and the accused was not asked

14 about that in evidence.

15 THE PRESIDING JUDGE: Also someone testified that an article had

16 appeared in the Zagreb paper, I do not think a date was given

17 though, regarding Mr. Tadic.

18 JUDGE STEPHEN: That was the article that they were joking about.

19 MISS DE BERTODANO: Yes, that is right, that is the one. I think the

20 context in which it was put was that they were saying how

21 ridiculous it was that these allegations were being made. There

22 is then some evidence that he knew something about these things

23 at the time. No evidence that he was in any fear that anything

24 would be done about any of the events in Republika Srpska, let

25 alone to him in Prijedor.

26 That is all I have to say, unless there are further

27 questions.

28 THE PRESIDING JUDGE: Thank you.

1 MISS DE BERTODANO: There is just one transcript cite. On page 6124

2 of Dusko Tadic's evidence he talked of the document, the rifle

3 certificate, and he says: "I did not see that document in Munich

4 during the interview", and it carries on after that.

5 THE PRESIDING JUDGE: Thank you. Mr. Orie?

6 MR. ORIE: Thank you, your Honour.

7 THE PRESIDING JUDGE: Mr. Orie, we will adjourn tonight at 6.00, but

8 you take your time. We have tomorrow morning.

9 MR. ORIE: Yes. Your Honour, I will address to you the issue of the

10 character of the conflict internal or international. The

11 Appeals Chamber has given us some guidance regarding the

12 character of the conflict. On the question of the existence of

13 an armed conflict as such, a clear answer has been given by the

14 Appeals Chamber. Both the intensity requirement and the

15 relationship requirement were met in the Prijedor region in

16 Bosnia and Herzegovina in the summer of 1992; pages 37 and 38 of

17 the decision of the Appeals Chamber. This of course is a global

18 assessment, and does not say anything about a nexus between the

19 alleged specific acts of the accused and the conflict. The

20 Prosecution and the Defence seem to agree that it will be

21 necessary to establish such a nexus as well in order to reach

22 the decision that Mr. Tadic would be guilty.

23 Unfortunately, I am not capable in explaining to you

24 anything about whether any acts were committed for pleasure or

25 for whatever other reason. I am only asking you to look at this

26 very cautiously. You will understand that I cannot give you any

27 help on that because my client was not there. So, what was in

28 his mind at that moment I cannot explain to you.

1 Of course, the Appeals Chamber did not hear any

2 evidence of fact necessary to establish such a nexus. It only

3 demonstrates that the ----

4 THE PRESIDING JUDGE: I think the transcript has stopped. No, it has

5 not. You may continue.

6 MR. ORIE: Once again, your Honour, the decision of the Appeals

7 Chamber only demonstrates that the events in the Prijedor area

8 were not separated in time or geographically from the armed

9 conflict that existed at that time in Bosnia and Herzegovina.

10 But then the main question that still needs to be answered is

11 whether the acts of the indictment took place in the context of

12 an international armed conflict. I will very much concentrate

13 on what I consider to be the relevant time, that is on from

14 mid-May, and I will especially pay a lot of attention to what

15 happened after 19th May, the date of the withdrawal, the

16 announced withdrawal, of the JNA. I will pay no attention to

17 the applicability of international humanitarian law under the

18 agreements of the conflicting parties, since the Appeals Chamber

19 correctly indicated that the defendant has not been charged with

20 any acts committed in violation of such agreements.

21 I quote the Appeals Chamber: "To the extent that the

22 conflict in which the alleged crimes were committed have been

23 limited to clashes between Bosnian government forces and Bosnian

24 rebel forces, they have been of an internal character, unless

25 direct involvement of the Federal Republic of Yugoslavia could

26 be proven." That means, your Honours, that it would have to be

27 established that the Bosnian Serbs were acting not as a

28 rebellious entity, but as organs or agents of another state,

1 again the wording of the Appeals Chamber. They were not.

2 Apart from the absurd outcome placing the Bosnian

3 Serbs at a substantial disadvantage vis-a-vis the central

4 authorities in Bosnia and Herzegovina, I submit that the

5 evidence presented by the Prosecution does not justify the

6 conclusion that the Bosnian Serbs were acting as organs or

7 agents of the Federal Republic.

8 As you may remember, in the early stages of the

9 procedure we had the authority of Mr. Fenrick at that time

10 saying that the conflict in Bosnia and Herzegovina was of an

11 internal character on from 19th May. He later changed his mind

12 because he had new information, as he told us, but it was never

13 explained to us what the old information was and what had been

14 added since then.

15 THE PRESIDING JUDGE: Was that not when he was with the Commission of

16 Experts and now that he is wearing his Prosecution hat maybe

17 that is ----

18 MR. ORIE: If that is the only additional information, your Honour,

19 I would not say that it is very relevant for us.

20 THE PRESIDING JUDGE: As I recall it, it is a long time ago but as

21 I recall it, that was when he was with the Commission of

22 Experts, not that that makes any difference I guess.

23 MR. ORIE: I do agree but he never gave us any reason what he more

24 afterwards when he changed his mind. We also of course have the

25 authority of the International Red Cross, and we see that the

26 Appeals Chamber is paying a lot of weight to it. Also the

27 International Red Cross at that time came to the conclusion that

28 it was an internal conflict.

1 The Prosecution has presented evidence that the split

2 up of the JNA has resulted in a very confusing situation, but of

3 course it is no surprise to the Defence that there was no time

4 at that moment available to order the issuing of entirely new

5 uniforms. Of course, it would not be possible at that moment to

6 search for new suppliers abroad, other than those already

7 contracted in earlier days.

8 If one manages what that would have meant under these

9 circumstances, it is quite obvious that the Bosnian Serbs would

10 use the channels they were used to, and that they were using the

11 uniforms and equipment that were left behind. Quite some

12 officers of the former JNA became officers in the VRS, the new

13 army of the Serbian Republic.

14 JUDGE STEPHEN: I am sorry, can I interrupt you for a moment just to

15 see if I understand where you are going? Am I right in thinking

16 that the Appeals Chamber concluded that there was an

17 international armed conflict created by the invasion of Croatia

18 and of Slovenia?

19 MR. ORIE: When I just was quoting the Appeals Chamber I think it was

20 only on the part of the clashes between the Bosnian government

21 forces and Bosnian rebel forces.

22 JUDGE STEPHEN: Did they not say there was both an international

23 conflict and also an internal conflict?

24 MR. ORIE: Well, they say that to make this part of the conflict in

25 Bosnia and Herzegovina an international conflict we first would

26 need proof of a direct involvement of the federal government in

27 Belgrade. They were very specific on that.

28 JUDGE STEPHEN: Yes, surely, but what I am trying to see is what your

1 response is to this. My understanding is that it has been said

2 certainly there was an international conflict. They also,

3 I think, said that international conflicts extend to the

4 totality of the countries in question. Then they say, but the

5 particular conflict here may have been internal and not

6 international. What do you say to the coexistence within the

7 one territory of an international conflict and an internal

8 conflict? Does one absorb the other? Is there a merger?

9 MR. ORIE: I think it depends. I do not think it ----

10 JUDGE STEPHEN: Or can you have the two coexisting?

11 MR. ORIE: I think you can have the two coexisting but not at the

12 same place.

13 JUDGE STEPHEN: It must be in the same place because the

14 international extends over the totality of the territories.

15 MR. ORIE: I can imagine that, for example, there is still some

16 combat going on in one part of the country with a foreign

17 neighbour, and in another part of the country you have an

18 internal conflict. But as we pointed out already, and I think

19 the Prosecution did more or less the same, the decision of the

20 Appeals Chamber in this respect is rather confusing. I think we

21 both expressed that. But specifically on this part of the

22 conflict the Appeals Chamber says to make this an international

23 conflict, and they are also drawing consequences out of that,

24 I just told you that they would say that if it would have been

25 an international conflict, clashes within Bosnia and Herzegovina

26 between rebellious forces and the central government forces,

27 that this would lead to an absurd outcome. That indicates,

28 I think, what they feel about this aspect.

1 THE PRESIDING JUDGE: Mr. Orie, the Defence filed a motion to dismiss

2 the Article 2 allegations in the indictment, contending that

3 Article 2 applies only if there is an international conflict and

4 there was not one. The Appeals Chamber denies the motion to

5 dismiss, do they not? They uphold the Trial Chamber's denial.

6 So, how can the Appeals Chamber uphold the denial of a motion to

7 dismiss when it should have been dismissed if it was not an

8 international conflict ongoing?

9 MR. ORIE: Your Honour, I think that if the Appeals Chamber indicates

10 that still some facts would have to be established before you

11 finally can come to the conclusion whether this was an

12 international conflict or not, they could not possible at that

13 moment already decide that the motion would be granted.

14 THE PRESIDING JUDGE: So perhaps what they are doing is looking at

15 the indictment and kind of treating it like a motion to dismiss

16 in my system, that is, assuming that all of the allegations are

17 true, then it would be an international conflict or no, without

18 finding finally that it is an international conflict?

19 MR. ORIE: One of the allegations is ----

20 THE PRESIDING JUDGE: Finding that if the Prosecutor proves what it

21 alleges, then it would be an international conflict, but they

22 have not gone so far as to say it has been proven.

23 MR. ORIE: One of the allegations is that it all happened in an

24 international conflict, so that still has to be proven. I think

25 that is what the Appeals Chamber indicates, that at least quite

26 some facts still have to be established before you can finally

27 reach the conclusion whether these acts were committed at that

28 time in an international conflict.

1 Your Honours, it has become clear that the state of

2 confusion I just referred to still influences the wording used

3 by several experts and witnesses. If, for example, Mr. Tihic

4 tells the Court that JNA soldiers used to wear the uniforms that

5 we all knew from the previous JNA, that is page 8976 (?), it is

6 clear that he refers to some kind of new JNA different from that

7 of the previous JNA, and that is in fact the VRS, but he still

8 calls them JNA soldiers. I will give you later another example

9 of using the word "JNA", Dr. Gow used that word, when it

10 actually means the remaining part of the JNA, then the VRS, on

11 the territory of Bosnia and Herzegovina.

12 The JNA had been a federal army of a Federal

13 Republic. There is no legal reason to assume that only the

14 Belgrade government was exclusively entitled to take possession

15 of all the equipment, and to keep in command of all the officers

16 and soldiers of the federal army. Bosnia-Herzegovina, and

17 especially, I must admit that, the Bosnian Serbs, were taking

18 part in the organisation and the operations of the JNA until the

19 withdrawal of the JNA was ordered. The central government in

20 Sarajevo did also claim the full control of any remainder of the

21 JNA on their territory, as Dr. Gow testified in

22 cross-examination. They would not accept anything less,

23 however, than full control.

24 Although the constitutional system had collapsed in

25 Bosnia and Herzegovina, and I refer to the lengthy statements of

26 Professor Hayden, already in 1991 and although it was clear that

27 the Bosnian Serbs were not participating in the new

28 constitutional order and would not do so either, having

1 established their own Serbian Republic of Bosnia and

2 Herzegovina, after having held their own plebiscite, the central

3 government was still claiming full control of all forces on

4 Bosnia and Herzegovina territory. The Serbian Republic tried on

5 its part to take control over the JNA materiel and people that

6 were left behind in those areas where there was a Bosnian-Serb

7 majority.

8 Much attention has been paid to the comparison between

9 the withdrawal of JNA of Croatia and the withdrawal of the JNA

10 of Bosnia. One would easily overlook, however, the differences

11 of the situation. Croatia had sought its dependence as a state

12 of Croatians. The amendments of the constitution of Croatia had

13 already illustrated the prominent place of the Croatian people

14 in that state prior to its independence. It was therefore that

15 the JNA only left equipment there where there was no Croat

16 majority.

17 Bosnia and Herzegovina, however, was a multi-ethnic

18 state. Serbs were a constituent part of the people of Bosnia

19 and Herzegovina, representing one third of the people. It is

20 easily understood that the Belgrade government was not very much

21 inclined to facilitate the Croatians, who were their enemies at

22 that time, in providing them with equipment, although it might

23 have been fair from a federal point of view to do so. In Bosnia

24 and Herzegovina the Serbian population was the same ethnic

25 origin. I think it hardly can be denied that there may have

26 been common aspirations among Serbs, whether living in Serbia

27 proper or in the Serbian majority part of Bosnia and

28 Herzegovina.

1 So, they were of the same ethnic origin as the

2 majority of the population of what would become the Federal

3 Republic of Yugoslavia. Therefore, there was no reason for the

4 Belgrade government whatsoever to frustrate the aspirations of

5 the Bosnian Serbs. The central government of Bosnia and

6 Herzegovina would not accept, however, anything else than full

7 100 per cent control of the JNA remainders, which they did not

8 achieve to obtain.

9 Many posts in the JNA in Bosnia and Herzegovina were

10 held by Bosnian Serbs. Non-Bosnian Serbs that were holding

11 posts like officers could decide whether they would return to

12 the territory of the federation or would stay in the Serbian

13 Republic of Bosnia and Herzegovina. Most of them perhaps

14 stayed. Non-Bosnian Serbs were already a minority in those

15 parts of the JNA that were found on Bosnia and Herzegovina

16 territory. For often very personal reasons a number of Serbs,

17 not of Bosnian origin, decided to stay. I refer to the

18 testimony given by Colonel Selak, page 1257.

19 Although financial support from Belgrade does not

20 alter the conflict, the internal conflict in an international

21 one, I will spend a few words on this financial support. As

22 Colonel Selak has testified on page 1274, the officers of the

23 former JNA were still paid by Belgrade after 19th May 1992.

24 I am not talking about pension, because I think it is

25 self-explanatory that a former employer is under an obligation

26 to pay these pensions independent of any subsequent new function

27 the former employee has taken. First of all, one should take

28 into account that the administrative system could not easily be

1 changed under the circumstances of 1992. That would be a major

2 operation in itself even under peaceful circumstances, but even

3 if these payments would indicate a financial support for the

4 Bosnian Serbs, this would not make the Bosnian Serbs organs or

5 agents of the federal government in Belgrade.

6 Just to give you an example, the Dutch government has

7 paid for many, many years the salaries of those officers in the

8 new Surinam Army, which was former colony of the Netherlands,

9 those salaries of those officers who used to serve in the Dutch

10 army before the independence of that colony. This does not make

11 the Surinam Army an organ or agent of the Dutch government.

12 The financial support of the United States government

13 may have played even a decisive role in the Nicaraguan

14 conflict. This, however, did not make the Contras agents or organs

15 of the US government.

16 The decisive question as we will see from now on is

17 whether the Belgrade government actually exercised such a degree

18 of control in all fields, I emphasise that, as to justify

19 treating the Bosnian Serbs as acting on behalf of the Belgrade

20 government. The wordings I use are the wordings from the

21 International Court of Justice in the Nicaragua case. Of course

22 I changed the "Nicaraguans" to "Bosnians".

23 So the issue is not whether the army of the Serbian

24 Republic of Bosnia and Herzegovina, the VRS, used equipment and

25 armament that used to belong to the JNA or that a former JNA

26 official continue their duty in the VRS, but whether this army

27 acted as an organ or an agent of the federal government of the

28 Federal Republic in Belgrade. That would require actually

1 exercising a degree of control in all fields, as I just

2 explained to you.

3 In the Nicaragua case the International Court of

4 Justice, and we are using the same authority, both the

5 Prosecution and the Defence, the International Court of Justice

6 had to determine whether or not the relationship of the Contras

7 to the United States government was so much one of dependence on

8 the one side and control at the other, I also emphasise that

9 because I have heard a lot on dependence and I have heard not

10 very much of control ----

11 JUDGE STEPHEN: You keep referring to agent or organ.

12 MR. ORIE: Organ or agent, yes.

13 JUDGE STEPHEN: Does that wording come from the Nicaragua case? Is

14 the criterion?

15 MR. ORIE: It is the same wording as you find in the Appeals Chamber

16 decision and in the Nicaragua case.

17 JUDGE STEPHEN: So that is the criterion?

18 MR. ORIE: Yes, but then they work it out in the Nicaragua case by

19 saying such a degree of control, etc., etc.

20 JUDGE STEPHEN: I do not understand how that equates agent or organ?

21 MR. ORIE: But that is ----

22 JUDGE STEPHEN: It is all a question of degree of control, is it?

23 I mean there is a great difference between being an organ of

24 something and being an agent.

25 MR. ORIE: Yes, I think they mainly thought of being an agent and

26 then you especially need this level of control, this degree of

27 control. I do not think -- well, at least in my opinion, it is

28 not a matter of being an organ, but rather of whether or not

1 they were acting as agents.

2 THE PRESIDING JUDGE: Mr. Orie, I think we know what Nicaragua held,

3 but do you not see a difference though? First of all, we are

4 not talking about state responsibility.

5 MR. ORIE: I will come to that later, your Honour.

6 THE PRESIDING JUDGE: But let me talk about other factual

7 differences. You do not have the same identity of ethnicity, as

8 you have already admitted, between Americans, most Americans,

9 or the United States of America and the Contras. You do not have

10 the same goals, ideological goals between the United States and

11 the Contras, but you do have that kind of relationship between

12 Bosnian Serbs and Serbs from the Federal Republic. You do

13 not -- I was getting ready to say you did not have the presence

14 of the army in the United States Army in Nicaragua, but I think

15 I will pass on that. But there are some differences, are there

16 not?

17 MR. ORIE: Yes, there are some differences, your Honour. I will come

18 to what exactly there was of the United States in Nicaragua

19 later. If you say, well, they are not of the same ethnic

20 background, would that actually that mean if you have common

21 political aspirations with someone who is of a different ethnic

22 background, that then it would not create state responsibility,

23 and if it is of people of the same ethnic background that then

24 you would be responsible for it?

25 THE PRESIDING JUDGE: No, I am not saying you have to have the

26 similarity of the ethnicity. I am pointing out the absence of

27 what I consider to be important differences. I do not think the

28 Contras in the United States were trying to join together as one

1 state. I do not think United States was particularly interested

2 in having Nicaragua. I do not know. Nicaragua, I do not know,

3 was particularly interested in becoming a part of the United

4 States. But I see a lot of factual differences.

5 MR. ORIE: At the time of the history I think that the Bosnian

6 Republic first of all wanted to be independent from Sarajevo,

7 and whether they would like to join Serbia proper later that

8 also came in a later stage in the history. Of course, I do

9 agree with you that there must have been some common goal

10 between the Contras and the US, because otherwise I could hardly

11 imagine why they did, as I will explain to you, what the United

12 States government.

13 Let me first continue because ----

14 THE PRESIDING JUDGE: We need to adjourn at 6.00. Do you want to

15 wrap up now or would you like to begin again, I do not mean at

16 the beginning but begin at this phrase?

17 MR. ORIE: I will tomorrow summarise in three lines what I have said

18 today and then continue.

19 THE PRESIDING JUDGE: Very good. Tomorrow we are going to begin at

20 9 o'clock and will go from 9.00 until 1.00. If we are not able

21 to complete, then we will then continue on Friday afternoon, it

22 will be in the afternoon but at a time to be determined.

23 So we will adjourn until 9 o'clock tomorrow.

24 6.00 p.m.

25 (The court adjourned until the following day).

26

27

28