Tribunal Criminal Tribunal for the Former Yugoslavia

Page 8718

1 Friday, 18 April 2008

2 [Open session]

3 [The accused entered court]

4 [The witness entered court]

5 --- Upon commencing at 9.00 a.m.

6 JUDGE MOLOTO: Good morning to everybody in court today.

7 Madam Registrar, could we please call the case.

8 THE REGISTRAR: Good morning, Your Honours, good morning

9 everybody in the courtroom. This is case number IT-04-83-T, The

10 Prosecutor versus Rasim Delic.

11 JUDGE MOLOTO: Thank you very much. Could we have appearances

12 for today, starting with the Prosecution.

13 MR. MUNDIS: Thank you, Mr. President, good morning to Your

14 Honours, to my learned colleagues from the Defence, to General Delic and

15 the witness, and to everyone in and around the courtroom. Daryl Mundis,

16 Aditya Menon for the Prosecution, assisted by Alma Imamovic our case

17 manager.

18 JUDGE MOLOTO: Thank you very much, Mr. Mundis.

19 For the Defence.

20 MS. VIDOVIC: [Interpretation] Good morning, Your Honours, good

21 morning to the colleagues from the Office of the Prosecutor, to everyone

22 in and around the courtroom. Vasvija Vidovic and Nicholas Robson for the

23 Defence of General Delic, with legal assistant Lejla Gluhic.

24 JUDGE MOLOTO: Thank you very much, Madam Vidovic.

25 Good morning to you, Mr. PW-9. We just have to call you that.

Page 8719

1 Good morning to you.

2 THE WITNESS: [Interpretation] Good morning.

3 JUDGE MOLOTO: Thank you. I just wanted you to remind that you

4 you're still bound by the declaration that you made yesterday to tell the

5 truth, the whole truth, and nothing else but the truth. Okay.

6 MR. MUNDIS: Thank you, Mr. President.


8 Further re-examination by Mr. Mundis: [Continued]

9 MR. MUNDIS: With the assistance of the usher, I would ask the

10 witness to be shown P02620. Again, Your Honours, I do have a hard copy

11 of this document in the original Arabic.

12 JUDGE MOLOTO: Can we get it again. Is it P02620?

13 MR. MUNDIS: Yes, Your Honour. It is P02620. I'd ask that this

14 be shown to the Defence, and then placed on the ELMO next to the witness,

15 please.

16 Q. Witness PW-9, do you see both the Bosnian version on the screen

17 in front of you and the original of this document on the machine to your

18 right?

19 A. I don't see the Bosnian version. I can only see the heading.

20 Perhaps we can see the entire document, if it can fit the page.

21 The Arabic version is quite illegible. Perhaps I can take the

22 piece of paper in my hand to have a good look at it.

23 Q. I think that's okay.

24 MR. MUNDIS: Is it not, Mr. President?

25 JUDGE MOLOTO: The piece of paper on the ELMO? Oh, indeed,

Page 8720

1 indeed.

2 MR. MUNDIS: He'd like to have a look.


4 THE WITNESS: [Interpretation] I'm sorry. I can't make out the

5 text in Arabic. It's quite illegible.


7 Q. Can you tell us, sir, the emblem in the upper right-hand corner

8 of this document. Can you tell us what that is, sir?

9 A. In the upper right-hand corner, there's something that resembles

10 the logo of the El Mujahedin Detachment.

11 Q. And can you tell us, sir, the stamped marking on the bottom

12 left-hand corner. Can you identify that, sir?

13 A. It resembles the stamp of the El Mujahedin Detachment.

14 Q. Now, Witness, can you tell us what this document is? What type

15 of document is this?

16 A. This was the template used by the El Mujahedin Detachment to

17 write orders.

18 Q. Can you tell us what you mean by "the template used to write

19 orders"?

20 A. I didn't say "orders." I said it was some sort of a memo that

21 the El Mujahedin Detachment used to write all sorts of documents, both

22 internal documents and the documents sent abroad or outside of the

23 detachment, and I'm referring to the original Arabic version. I haven't

24 even read the Bosnian version.

25 Q. And, sir, this document that you have before you, do you know

Page 8721

1 whether this would have been a document, as you described an internal

2 document, or a document sent abroad or outside of the detachment? Again,

3 I'm referring to the original Arabic.

4 JUDGE MOLOTO: Mr. Mundis, I thought the witness said he is

5 unable to read the Arabic because it is so illegible.

6 MR. MUNDIS: Your Honours, I believe, based on the witness's

7 answer concerning it being a template, if can he perhaps elaborate upon

8 that.

9 THE WITNESS: [Interpretation] Presumably, since it is in the

10 Arabic language, it was intended to be sent abroad. But if you give me

11 some time to go through the translation, I might be able to tell a bit

12 more.

13 Q. That's fine, sir, if you want to take a moment.

14 JUDGE MOLOTO: Yes, Madam Vidovic.

15 MS. VIDOVIC: [Interpretation] Your Honours, I will avail myself

16 of the opportunity, while the witness is reading the document, to ask the

17 Prosecutor to state exactly in what way the document and the questions

18 arise from yesterday's cross-examination.

19 Yesterday, I examined the witness in relation to the reports that

20 were quite clear in terms of where they came from and where they were

21 sent. I also asked about the combat reports relating to the battles at

22 Brdo Previja, Kajen Sopot, Pisana Jelika, Visoka Glava. Not a single

23 question had to do with Vozuca or this specific battle.

24 The fact that the Prosecutor testified yesterday as to the

25 possible importance of the document cannot be taken into consideration.

Page 8722

1 I want the Prosecutor to state for the record in no uncertain terms in

2 what way this arises from my yesterday's cross-examination.

3 JUDGE MOLOTO: Before Mr. Mundis stands up, you are interpreted

4 as saying, "the fact that the Prosecutor testified yesterday." Is that

5 what you said?

6 MS. VIDOVIC: [Interpretation] Your Honour, in relation to this

7 category of documents, the Prosecutor stated for the record that these

8 were intercepts, documents that were arrived at through intercepting

9 documents, and I believe that this was testimony, and it was not prompted

10 by anything.

11 Secondly, he wrote that same thing in the list you received; and,

12 again, it was not prompted by anything.

13 JUDGE MOLOTO: Mr. Mundis.

14 MR. MUNDIS: Again, Your Honours, I would ask that you be

15 permitted to respond in the absence of the witness.

16 JUDGE MOLOTO: May the witness please be excused.

17 Shall we please move into private session for the witness's exit.

18 [Private session]

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 [Open session]

24 THE REGISTRAR: Your Honours, we're in open session.

25 JUDGE MOLOTO: Thank you very much.

Page 8723

1 Yes, Mr. Mundis.

2 MR. MUNDIS: Your Honours, in a nutshell, the response is the

3 same response I gave yesterday when this issue arose; that is, the fact

4 that the Defence in re-cross-examination raised the issue of these

5 documents and where they were sent to and what the purpose of the

6 documents were and what was contained in the documents. I see the

7 objection of the Defence being that they discussed other documents

8 relating to other battles, if you will, in other locations. That is not,

9 in our respectful view, dispositive of the issue. Once the Defence has

10 opened the door and began to show the witness a number of these types of

11 reports, our position is that similar documents should be -- we should be

12 allowed to put similar documents to the witness just as we did yesterday.

13 With respect to my learned colleagues's reference to me

14 testifying, Your Honours will recall that was in specific response to a

15 question from the Bench as to the purpose for which we were showing these

16 documents to the witness.

17 That purpose remains as valid today as it was yesterday. I

18 will -- I will clearly indicate that we are tendering these documents

19 both for the truth of what might be contained in the documents as well as

20 to any possible issues concerning notice with respect to any of these

21 documents that the Prosecution asserts were intercepted. Again, I'm not

22 saying all of them were intercepted, but it is the Prosecution theory

23 that some of these documents were intercepted and served as part of the

24 notice in this ways.

25 I would respectfully ask that if this is -- if this issue is

Page 8724

1 going to continue to arise, that we fully address the issue now. There

2 are four -- well, after this document, there are three additional

3 documents in the same category. I think the most expeditious way of

4 going forward is to deal with it once and for all to deal with respect to

5 the four documents, the one on the ELMO now and the three remaining

6 documents, lest we have a situation where we're going to continuously

7 being forced to ask the witness to go out of the courtroom.

8 I don't think it is proper to be discussing the importance of

9 these documents or legal arguments concerning these documents in the

10 presence of the witness. With all due respect, I just don't think that

11 that is a proper course of action because of the sensitive nature of

12 these documents.

13 JUDGE MOLOTO: Yesterday, the Court gave a ruling on yesterday's

14 document that you tendered, Mr. Mundis; and I'm just trying to find out

15 whether the objection here is exactly the same as yesterday, because

16 yesterday's ruling would be applicable if it is the same. But I don't

17 know whether Madam Vidovic is coming up with new arguments with respect

18 to this document in particular.

19 Madam Vidovic is saying that, in the documents that she tendered

20 yesterday, no mention of Vozuca was made. Now, this seems to a slightly

21 different angle from which she comes. Now I would like you to address

22 that.

23 MR. MUNDIS: Well, Your Honours, I acknowledge that that's the

24 basis of the objection. What my learned colleague is objecting to is

25 that this document goes to a battle or combat operations that was not

Page 8725

1 raised by her in her cross-examination. My point is simply that what

2 we're talking about here are the -- the actual reports or documents or

3 these transmissions, these fax transmissions that were sent outside of

4 Bosnia; and the fact that the Defence have raised the issue of orders or

5 reports or bulletins or whatever - however you want to characterise these

6 faxes - that's the point here. Then having raised the issue of documents

7 being sent outside of Bosnia and Herzegovina by the El Mujahedin

8 Detachment, the fact that it is a similar type of document concerning

9 different battles is the basis upon which I'm proceeding at this point.

10 And, in my respectful view, the issue is not -- the issue from

11 the cross-examination is not necessarily what was contained in each and

12 every one of these documents. The issue is the fact that information was

13 being sent outside of Bosnia by way of these faxes. Having raised that

14 issue, the Prosecution position is that we should be allowed to put these

15 documents, similar documents that went outside of Bosnia, to the witness.

16 JUDGE MOLOTO: Okay. Thank you very much.

17 Any reply, Madam Vidovic, and that's going to be the end of the

18 argument. Yes.

19 MS. VIDOVIC: [Interpretation] Thank you, Your Honour.

20 First of all, Your Honours, the nature of cross-examination is

21 such that it allows the party re-examining to move within the scope of

22 questions arising or put by the cross-examiner.

23 In the case at hand, the fact of the matter was not that the

24 documents were sent abroad, nor was this relevant. What is at stake here

25 are both factual and legal matters that are far more serious than the

Page 8726

1 Prosecutor has been portraying them here. The fact that a document is

2 similar to the one used by the Defence in their cross-examination does

3 not provide a foundation for re-examination at all, because then, Your

4 Honours, you could be shown hundreds of similar documents.

5 The fact is that, in my cross-examination, I was putting

6 questions in relation to documents which clearly indicate where they came

7 from and by whom they were received.

8 I asked the Prosecutor today, and I believe I'm entitled to do

9 so, to explain in what way this document arises from my

10 cross-examination. His response was that the document was similar, and

11 that the document was a report sent abroad.

12 Your Honours, I invite you to look at the document carefully, and

13 to deliberate upon this and disregard what the Prosecutor Has been

14 saying, because the Prosecutor has been testifying again. Look at the

15 document in the light of whether it supports any of the arguments put

16 forth by the Prosecutor. It was sent abroad and, therefore, apparently

17 it is similar. We cannot infer that it is a similar document because it

18 is written in Arabic. It could have been written in Arabic for a number

19 of different reasons. It could have been written in Arabic even in the

20 context when an Arab is sending a document to another Arab or group of

21 Arabs or an Arab superior to him in Bosnia-Herzegovina. That is the fact

22 of the matter.

23 Your Honours, I repeat, I am opposed to admitting such documents

24 under the garb of them being similar to the documents that I used in my

25 cross-examination. That is not a foundation. It does not arise from

Page 8727

1 cross-examination. We have a clear situation where the Prosecutor

2 omitted to show a document to the witness during his examination. A

3 similar document, though, admittedly was shown to the witness during the

4 examination-in-chief.

5 Now the Prosecutor is trying to have this document admitted into

6 evidence through this witness in contravention of Rule 85 and in

7 contravention of the Rules of Procedure and Evidence. He is trying to

8 have documents admitted that go to the establishment of guilt only in

9 this way, and I will be fighting to the end, until I ascertain that this

10 is the fact. I want this to be in the record.

11 I want the Prosecutor to tell us in what way this arises from

12 cross-examination, apart from the fact that it is a similar document,

13 that it was sent abroad, which in no way transpires from the document;

14 and I want to him to state the purpose for which he wants to use the

15 document. The Prosecutor stated yesterday that they want to reinforce

16 their case in relation to one of the elements of guilt, and that is

17 notice of the accused.

18 Your Honours, I assert that this goes beyond the scope of Rule

19 85, and that it violates the right of the accused to a fair trial.

20 Seemingly, the Prosecutor failed to understand that this was

21 re-examination. The document he gave us yesterday was a document he

22 should have sent to us earlier on, at least 48 hours before.

23 Very well, you decided that you would admit those documents on

24 condition that I might examine the witness in additional upon them. But

25 nothing can justify the fact that the Prosecutor is trying to have

Page 8728

1 documents admitted at this late stage in proceedings that go to some of

2 the crucial elements of the crime base. This sort of document could have

3 been shown by the Prosecutor to at least 20 witnesses. This is a

4 Prosecutor's attempt to introduce such documents through the back door.

5 Let me state one other thing. The accused was severely

6 prejudiced through such a late disclosure of documents that would have

7 been exculpatory to a very high extent and which the Prosecutor must have

8 known that he had them. We received your ruling which strives to rectify

9 this to a certain extent by allowing us to examine the witness

10 additionally. Their Honours have allowed us to examine the witness and

11 that's only natural.

12 Now, will the accused be punished by the fact that injustice will

13 be allowed to yield injustice, that you would allow the Prosecutor to

14 lead evidence as to the guilt of the accused in contravention of Rule 85.

15 Well, Your Honours, I want the Prosecutor to clearly state by not mincing

16 his words as to why he intends to do that. Then on the basis of the

17 Prosecutor's explanation, I will decide what further steps I will take.

18 [Trial Chamber confers]

19 JUDGE LATTANZI: [Interpretation] Ms. Vidovic, once again, the

20 issue related to the question of prejudice.

21 Now, the solution which was adopted yesterday could not solve the

22 issue of the prejudice you have mentioned; and as you have already told

23 us, this cannot settle the issue of prejudice.

24 Could you perhaps expand on this and tell us why the solution

25 provided yesterday by the Trial Chamber cannot settle the issue of the

Page 8729

1 prejudice incurred by the accused.

2 MS. VIDOVIC: [Interpretation] Honourable Judge Lattanzi and Your

3 Honours, yesterday, we discussed a situation that was different to that

4 of today.

5 Yesterday, you were deciding about whether to allow the

6 Prosecutor to show the documents to the witness, whether to use them in

7 relation to the witness, and you allowed that. Very well.

8 Today, however, the situation is different. I'm asking the

9 Prosecutor to show, to demonstrate in what way this arises from my

10 cross-examination. My position is that the questions put to the witness

11 and the document shown to the witness have nothing to do with my

12 yesterday's cross-examination.

13 Now, in what way does this prejudice the accused? I will explain

14 this to you quite simply in the following way: It will be the sort of

15 prejudice that cannot be remedied. We are nearing the end of the

16 proceedings. The Prosecutor should have used that same document with

17 this witness because he had the document before, and he could have used

18 the document with other witnesses.

19 We would then have been in the position to go far deeper in

20 exploring the crime base that has to do with this particular document or

21 we could have called some other witnesses. This is almost the end of the

22 trial and this makes no sense. Such situation cannot be remedied merely

23 through my examining this witness additionally.

24 Apart from that, there is one sort of other prejudice that is

25 quite evident. To have documents admitted at such a late stage in the

Page 8730

1 proceedings which go to the guilt of the accused is not allowed. That

2 was why Rule 85 was drafted in the first place, not only to regulate when

3 evidence can be led but also to safeguard the rights of the accused

4 against procedural abuse. It is done through that Rule in the provisions

5 which dictate upon the Prosecution when it is that they can lead

6 evidence.

7 I don't think that a couple of days can be enough for me to

8 answer the case that goes to the crime base. It is a very serious

9 matter, and it should have been dealt with by the Prosecutor during his

10 own case.

11 This cannot be done at the end of the proceedings and

12 particularly not through a witness that was brought here, that was called

13 here in order to rectify an earlier injustice. Should this witness be

14 the one that the Prosecutor would use to introduce documents through that

15 have nothing to it with why this witness was called in the first place.

16 Quite another matter is the fact that the documents go out of the

17 scope of my cross-examination, and the fact that the documents have to do

18 with the establishment of the guilt and should have therefore been used

19 by the Prosecutor earlier on, that would have allowed as the Defence to

20 know where our Defence case should be headed. No, Your Honours, this is

21 the end of the proceedings.

22 Another thing. I believe that the Prosecutor was not even

23 reprimanded for the fact that great injustice was done to the accused

24 because of the violation of Rule 68. The Prosecutor was not reprimanded,

25 and this sort of injustice now seems to be heading toward an even greater

Page 8731

1 injustice, which would be that of allowing the Prosecutor to have

2 documents admitted into the evidence which go to the notice of the

3 accused. This goes against all the principles of law, not only the ones

4 employed before this Court but others as well.

5 I'm invoking to the Delalic case decision of the 18th of August,

6 1998, which dealt with this matter and settled the matter and has been

7 used in the jurisprudence of the Tribunal ever since.

8 JUDGE HARHOFF: If I may put a question and I will do so in the

9 total innocence of all of this, because I wasn't here yesterday and was

10 not part of the decision, and I have not yet had time to review the CD of

11 the proceedings from yesterday.

12 But to address just one issue that you raise, Madam Vidovic, I

13 think the issue of the late disclosure of the Rule 68 material has been

14 dealt adequately by the Chamber, and you have been given a chance to have

15 a remedy towards that late disclosure. I think we have, in sufficiently

16 strong terms, scolded the Prosecution for its failure to ensure that

17 these materials were given to you earlier on.

18 But I wish to go back to the discussion relating to this document

19 because I'm not sure I understand fully the significance of it, and I

20 would take advantage of the fact that the witness is out of the courtroom

21 to ask this question.

22 The document on the screen seems to show that reports were sent

23 by the El Mujahedin Detachment to some institutions abroad, and my

24 question is: What is the significance of that? Why is the fact that the

25 EMD was communicating reports to institutions outside the country of

Page 8732

1 significance/importance to the guilt of the accused?

2 MS. VIDOVIC: [Interpretation] Your Honour, if you allow me, I'm

3 not really looking at the right document, and I really can't determine

4 what, on the face of this document, shows that this document was sent

5 abroad. I really can't see anything on this document that would indicate

6 that.

7 This is, Your Honour, what the Prosecutor has been doing

8 throughout the procedure, and I'm taking this opportunity to have this

9 entered in the transcript because there may be a point where I will

10 complain about the fairness of this trial.

11 Throughout the proceedings, the Prosecutor sent -- would send a

12 list to the Trial Chamber, such as the one yesterday, where it would just

13 say that this is an intercepted list from an intercepted conversation of

14 El Mujahid; and then the Prosecutor is on his feet, again repeating the

15 same thing. This, in fact inspires prejudice and you, too, must have

16 been prejudiced by what he has said, because nothing on this document

17 actually indicates that it has been intercepted.

18 So this is something that where the Prosecutor simply creates a

19 situation from which we are to infer something, and this is why I want

20 him now to tell us how this relates to my additional examination or

21 re-examination. I appreciate your decision to allow me to try and

22 re-examine this witness because this was the only way to actually right

23 the wrong. But what the Prosecutor is now doing is he is trying to

24 produce all those documents that did he not think of introducing before,

25 and he is now seeking to do it during re-examination outside of the scope

Page 8733

1 of what -- of my examination.

2 So, Your Honour, looking at this document, there is nothing to

3 indicate that it was sent abroad.

4 JUDGE HARHOFF: Thank you very much. Madam Vidovic. Let's here

5 him out.

6 Mr. Mundis.

7 MR. MUNDIS: Two points just very briefly from what my learned

8 colleague just said. At page 4, line 1, the witness, in response to my

9 question, just indicated that presumably this document was sent abroad

10 because it is in Arabic. So there's the evidence that the document was

11 sent abroad.

12 I do want also respond to the fact that my learned colleague

13 seems to be implying that somehow this Prosecution team has prejudiced

14 the Trial Chamber based on 65 ter description that accompanied the

15 exhibits. We do not believe that's the case. We do not believe that

16 this Trial Chamber is going to be biased or prejudiced in any way based

17 on arguments of counsel or documentation submitted by counsel. So I

18 would vehemently oppose that as well.

19 I am prepared to put on the record the Prosecution theory with

20 respect to these documents, but it seems that every time I've done that

21 in the past, I have been accused of testifying. So I am very loathe to

22 answer or to respond to that without it being absolutely clear that I'm

23 putting forward the Prosecution theory and not testifying as to what

24 the -- the these documents purport to be.

25 I can certainly make out an argument as to why they are relevant

Page 8734

1 and why the are important in this case; but, again, I will only do so if

2 I'm specifically asked to do so because I don't know want to be accused

3 of testifying. So at that -- I'll leave it at that unless and until I'm

4 specifically asked as to why these four documents that are on our list,

5 the remaining four documents, are important.

6 [Trial Chamber confers]

7 JUDGE MOLOTO: The objection is upheld.

8 MR. MUNDIS: I take it, then, Mr. President, Your Honours, that

9 that applies to all four of these documents.

10 JUDGE MOLOTO: If they are coming in on the same base, yes.

11 MR. MUNDIS: Thank you very much. We're prepared to move on.

12 JUDGE MOLOTO: May the witness please come in.

13 May the Chamber move into private session.

14 MR. MUNDIS: I'd ask while the witness is coming in that the

15 document that was just shown, P02620, be marked for identification.

16 JUDGE MOLOTO: Thank you.

17 THE REGISTRAR: Your Honours, we are in private session.

18 [Private session]

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 8735

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 [Open session]

17 THE REGISTRAR: Your Honours, we're in open session.

18 JUDGE MOLOTO: Thank you so much. I'm sorry about that,

19 Mr. Mundis. Maybe I want to put your question again.

20 MR. MUNDIS: Certainly, Mr. President.

21 Q. Yesterday, sir, in response to a question from my colleagues for

22 the Defence, you indicated that a report that you were shown points to

23 evidence that the detachment was not under the control of the Bosnian

24 army and that it refused many orders that came from the army command.

25 This was on page 8686, lines 9 through 24 yesterday.

Page 8736

1 Do you remember saying that, Mr. Witness?

2 A. Yes, I do.

3 Q. Can you tell us, sir, on how many occasions the detachment

4 refused orders that came from the army command?

5 A. I cannot tell you with certainty how many, but I could -- I

6 witnessed it myself at a meeting where they refused to participate in an

7 operation, and I know of another situation from earlier on where I was

8 not present personally. There were also a number of occasions where the

9 detachment refused to participate or to enter an operation at the given

10 time as ordered by the command of the 3rd Corps, and this deals with the

11 second and third operation where the detachment participated in the

12 Vozuca area.

13 Q. Sir, do you remember testifying in November about these

14 situations that you're referring to now?

15 A. Yes, I do.

16 MR. MUNDIS: Perhaps, Mr. President, if the usher could lower the

17 arm on the ELMO. It is a bit distracting.

18 JUDGE MOLOTO: Thank you, Madam Usher.


20 Q. Sir, on page 5729 line 3 through page 5730 line 21 of your

21 testimony on 16 November 2007, you told the Trial Chamber that the

22 El Mujahedin Detachment refused to participate in an operation to seize

23 Visoko Glava and Pisana Jelika. Do you remember that?

24 A. Yes, I do remember that. That was the situation where I was

25 personally present when they refused.

Page 8737

1 Q. And you also told us, as reflected on page 5730, lines 12

2 through 21 of the 16 November 2007 transcript, that there was a situation

3 concerning the second operation at Vozuca that the detachment requested a

4 postponement, because of intelligence the detachment had. Do you

5 remember that, sir?

6 A. Yes, I remember.

7 JUDGE MOLOTO: Sorry. Your microphones are not on, Mr. Witness.

8 Can somebody help, please. Which one is he using?

9 [Trial Chamber and registrar confer]

10 JUDGE MOLOTO: My apologies.


12 Q. Now, sir, other than this operation to seize Visoko Glava and

13 Pisana Jelika, and this situation where there was a postponement

14 concerning the second Vozuca operation, can you recall a specific

15 instance, or instances, where the detachment refused to carry out an

16 order?

17 A. I heard from someone else, so I wasn't a witness, that there was

18 one or two operations in the Vitez area while the clash with the HVO was

19 still on, but I cannot tell you for certain what operations these were.

20 Q. Sir, do you -- based upon your experience with the detachment, I

21 asked you this before in November, and I'd like to ask you this question

22 again. This is on page 5769 through page 5770 line 7.

23 Based on what you have told us, sir, would it be a fair

24 characterisation to depict the El Mujahedin Detachment as some kind of

25 rogue force that went where it wanted, when it wanted? And my question

Page 8738

1 to you today, having seen these documents he were shown yesterday by the

2 Defence, if you could answer that question.

3 A. The detachment was not a rogue force --

4 MS. VIDOVIC: [Interpretation] Your Honour, this is a leading

5 question. This is a witness of the Prosecution, so he cannot lead the

6 witness in this manner.

7 JUDGE MOLOTO: Mr. Mundis.

8 MR. MUNDIS: Let me rephrase the question.

9 Q. Mr. PW-9, can you tell us the relationship between the

10 El Mujahedin Detachment and the 3rd Corps of the ABiH?

11 A. I think that I testified to this, too, in my previous evidence.

12 The best way to describe this is that this was cooperation, a

13 relationship of cooperation in a fight against a common enemy.

14 Q. And, sir, where did the El Mujahedin Detachment receive its

15 orders from?

16 A. I have already said this, in my earlier testimony, that there

17 were no direct orders. There were requests by the 3rd Corps to have the

18 detachment participate in certain operations, and this was agreed in

19 meetings that I did not attend.

20 Q. Let me ask you, sir, can you tell us during the period 1993

21 through 1995 which armed force or army you were a member of?

22 A. I was a member of the BH army.

23 Q. Now, sir, let me just ask you whether or not you are aware of a

24 publication called Ljiljan?

25 A. Yes, I'm aware of it.

Page 8739

1 Q. Can you tell us the Trial Chamber what that publication is,

2 please.

3 A. Ljiljan was a weekly political magazine that was -- that existed

4 until two years ago -- or I believe from 1992 until two years ago when it

5 was extinguished.

6 MR. MUNDIS: I ask that the witness be shown P01714. If we could

7 please go to page 3 in the Bosnian version, please, and page 3 in the

8 English version as well.

9 Q. Now, sir --

10 MR. MUNDIS: We need to go to the very bottom right-hand corner

11 in Bosnian, and we need to go to the bottom of page three in the English.

12 Q. Sir, there's a question that begins in bold right at the bottom

13 on this page in the right-hand corner, and I would ask you to read that

14 question to yourself.

15 MR. MUNDIS: We need to be at the bottom of page 3 in English,

16 please, the next page.

17 JUDGE MOLOTO: Yes, Madam Vidovic.

18 MS. VIDOVIC: [Interpretation] Your Honour, perhaps the witness

19 [as interpreted] can tell us what the basis for his putting in connection

20 this witness, to this document. So what is the connection between this

21 witness and this document?

22 JUDGE MOLOTO: Mr. Mundis.

23 MR. MUNDIS: Your Honours, I'm simply going to ask the witness to

24 read this question and answer contained in this interview, and I would

25 like to ask him to comment upon it, based upon his previous answers.

Page 8740

1 JUDGE MOLOTO: You may proceed. I see, Madam Vidovic.


3 Q. And the question, sir, continues on the top of the next page in

4 both the B/C/S and English pages. So if you have seen that portion, we

5 can go to the next page.

6 MS. VIDOVIC: [Interpretation] Your Honour, I have to ask again:

7 How is this connected at all to my re-examination? The Prosecutor had

8 opportunity to put these questions during his examination-in-chief, and

9 he should have done this in accordance -- pursuant to Rule 90 (H). This

10 is not a renewed examination-in-chief, and I have an objection to his

11 examining the witness.

12 JUDGE MOLOTO: Mr. Mundis.

13 MR. MUNDIS: Again, I think it is not appropriate for me to

14 respond in the presence of the witness. I don't want to keep doing this,

15 Your Honours. But the document, on its face, seems to contradict

16 something that the witness has testified about, and I would simply like

17 to ask the witness to comment upon what is contained in this question and

18 answer in this document.

19 JUDGE MOLOTO: Does it relate to something that the witness

20 mentioned in his testimony under cross-examination.

21 MR. MUNDIS: It can certainly be -- definitely inferred from the

22 cross-examination; and, again, I can elaborate upon that --

23 JUDGE MOLOTO: Don't elaborate. Just answer me yes or no to my

24 question. Does it relate to an issue that arose during Madam Vidovic's

25 cross-examination.

Page 8741

1 MR. MUNDIS: It relates, yes.

2 JUDGE MOLOTO: And for what purpose is it going to be tendered,

3 if it is tendered at all?

4 MR. MUNDIS: Impeachment.

5 JUDGE MOLOTO: Thank you.

6 MS. VIDOVIC: [Interpretation] Your Honour, did I hear this right,

7 that the Prosecutor will use this document for impeaching his own

8 witness. Is that what the Prosecutor has just said?

9 Then, Your Honour, the procedure is a bit different.

10 JUDGE MOLOTO: What is your position, Madam Vidovic? Are you

11 objecting for that purpose or are you not objecting, if it is tendered

12 for that purpose? Your objection, does it still stand, in other words?

13 MS. VIDOVIC: [Interpretation] Your Honour, my earlier objection

14 still stands, and I have no position on this issue, the fact that the

15 Prosecutor wants to impeach his own witness. I have no stand on that.

16 JUDGE MOLOTO: Which earlier objection are you referring to,

17 Madam Vidovic?

18 MS. VIDOVIC: [Interpretation] Your Honour, I think it goes

19 outside of the scope of my examination. This witness has nothing to do

20 with this document, and I mean all the earlier objections that I made

21 when he tried to show him.

22 JUDGE MOLOTO: Madam Vidovic, please let us not go to earlier

23 objections. We have dealt with those. We have ruled on those. We are

24 dealing subjection now. There is a completely different basis here. The

25 basis is not for the truthfulness of the content of the document but for

Page 8742

1 impeachment, number one. Number two, I want to know from you what your

2 position is where this document, whether or not the witness has anything

3 to do with it, do you have an objection to it being used for the purpose

4 for which Prosecutor wants to use it?

5 MS. VIDOVIC: [Interpretation] No, Your Honour.

6 JUDGE MOLOTO: Thank you very much.

7 You may proceed, Mr. Mundis.

8 MR. MUNDIS: Thank you.

9 Q. Witness PW-9, have you now had a chance to read this portion of

10 this article?

11 A. Yes. If can I just see the bottom of the page, so I can read the

12 answer through.

13 JUDGE MOLOTO: Mr. Mundis, I would like to know what the witness

14 is being asked to read. First of all, on the English, I see what looks

15 part of a question. I don't see the whole question.

16 MR. MUNDIS: That was on the preceding page, Your Honour.

17 JUDGE MOLOTO: Well, I didn't know what to look at on the

18 preceding page because it has been shifting all over; and even on the

19 preceding page, I had not been directed specifically to a portion to

20 read.

21 MR. MUNDIS: In the English, if we could go back to the previous

22 page where the question begins in bold and then it continues.

23 JUDGE MOLOTO: Okay. Right at the bottom.

24 Okay. We can go to the next page. Okay. Then you want the

25 witness to read the answer?

Page 8743

1 MR. MUNDIS: To himself, and I have a question about part of it.

2 JUDGE MOLOTO: Okay. Please proceed.

3 MR. MUNDIS: Thank you, Your Honour.

4 Q. Sir, have you now had an opportunity to read this question and

5 answer?

6 A. Yes, I have.

7 Q. I would like to direct your attention to a couple of sentences

8 that appear in the middle of the screen in the Bosnian language and a

9 little bit below the middle of the page in the English, where the

10 response begins "Speaking about foreign citizens."

11 Do you see that part?

12 A. Yes. I can see it and I have read it.

13 Q. My question, sir, is there's a statement here that says:

14 "Speaking about foreign citizens, their number is so small that their

15 influence is not relevant on any battlefield or in any brigade's area of

16 responsibility."

17 The next -- well, I'm specifically interested, sir, where it

18 says: "Those men are also in the system of subordination and

19 coordination, and they cannot act independently."

20 Can you comment on that, sir?

21 A. I think that this tallies with what I said both in my evidence

22 earlier on and now. I clearly said, and I remember that quite clearly in

23 November, that the El Mujahedin Detachment - if this, indeed, refers to

24 that detachment, although it is not specified here - did not operate and

25 could not operate alone on any front line. I explained why that was the

Page 8744

1 case, because it was operating in the area of responsibility of the

2 3rd Corps, and there were other units deployed. You cannot just go to a

3 front line, attack wherever you want, pull out from any area you want.

4 So I don't see why you think this is contrary to what I said in my

5 earlier evidence.

6 As for coordination and subordination, that is not the same

7 things as the command and control system in the army.

8 Q. Can you explain that to us, this concept of coordination and

9 subordination being different than command and control?

10 A. Of course. In the command and control system, units carry out

11 specific orders they receive from their superior commands. When we're

12 talking about coordination and subordination, they cooperate, they work

13 together in the execution of a joint task.

14 Q. This concept of coordination and subordination, what units did

15 that notion apply to?

16 A. Well, I don't know whether it applies to any other units apart

17 from the El Mujahedin Detachment. I don't know about that. I'm not

18 aware of it.

19 Q. Thank you, sir.

20 MR. MUNDIS: The Prosecution has no further questions. This

21 document can be marked for identification.

22 JUDGE MOLOTO: Thank you very much.

23 [Trial Chamber confers]

24 JUDGE MOLOTO: Yes, Madam Vidovic.

25 MS. VIDOVIC: [Interpretation] Your Honours, I do apologise. This

Page 8745

1 is one of the documents that were also discussed to us belatedly, as you

2 will recall, with the whole group of documents. We received it yesterday

3 just before the trial began. I would like to ask you to allow me to just

4 ask a couple of quick questions relating to this document because I had

5 not had an opportunity to go through it earlier, so I was unable to ask

6 questions about it in my cross-examination.

7 MR. MUNDIS: Your Honours, I don't object to asking the

8 questions, but I do note that this document bears PT number 1714 and was

9 certainly disclosed to the Defence approximately 18 to 24 months ago. So

10 this is not a new document. I do want to put that on the record that

11 this is not part of the exculpatory material or anything that was late

12 disclosure. This was on the original 65 ter list and has a been in the

13 possession of the Defence since well before the trial started.

14 But I have no objection to her putting any further question.

15 MS. VIDOVIC: [Interpretation] That's correct, Your Honours. But

16 this document is in the category of the documents that the Prosecution

17 was supposed to disclose to the Defence 48 hours earlier, because

18 Mr. Mundis was not in a position to cross-examine this witness. I was

19 cross-examining this witness, and he re-examined the witness.

20 So he conducted the examination-in-chief. That was his role, and

21 your guidance was quite clear. This is the jurisprudence before this

22 Tribunal. This document was supposed to be disclosed or notified 48

23 hours before the session, not just before the session started. Had I had

24 this document 48 hours earlier, I would have been able to go through it

25 and use it in my cross-examination.

Page 8746

1 So let us not go into this whole issue. This has nothing to do

2 with the 65 ter list. What it has to do with is the fact that the

3 Prosecution is under an obligation to submit to the Defence documents

4 that it intends to rely on 48 hours in advance. That's what I'm talking

5 about.

6 JUDGE MOLOTO: Madam Vidovic, Mr. Mundis indicated that he didn't

7 have any objection to you asking any further questions. You said there a

8 few. I hope they will be, indeed, a few. You may please proceed.

9 MS. VIDOVIC: [Interpretation] Your Honours, I really have two or

10 three short questions that pertain to this document that you've just

11 seen.

12 Further cross-examination by Madam Vidovic:

13 Q. {Interpretation] I would like to ask you the following: This was

14 an interview published in a newspaper, and you did not attend when this

15 interview was given. Is that right?

16 A. No, I was not.

17 Q. You don't know whether the person that actually gave this

18 interview actually did so?

19 A. Well, of course I don't know that.

20 Q. I do apologise. So you don't know whether the person actually

21 authenticated this interview?

22 A. I don't know that.

23 Q. From the text that you read, you are unable to draw any

24 conclusions as to what unit is actually referred to in the interview.

25 Isn't that so?

Page 8747

1 A. Well, one can only guess.

2 Q. Thank you.

3 MS. VIDOVIC: [Interpretation] I have no further questions.

4 JUDGE MOLOTO: Thank you.

5 [Trial Chamber confers]

6 JUDGE MOLOTO: Thank you very much, Witness. This brings us to

7 the conclusion of your testimony; and, once again, we thank you for

8 coming and coming a second time. We appreciate that it is inconvenient

9 to you to be called up here, but I hope you do understand that, in trying

10 to resolve these problems, we do need to get the evidence and to get it

11 as fully as we possibly can. We apologise that you had to come a second

12 time.

13 Let me also apologise for the fact that we have been sending you

14 out of the court and what have you. It is not really proper and I don't

15 think you feel good about it, but we apologise for that.

16 Travel well back home. You are now excused. You may stand down.

17 THE WITNESS: [Interpretation] Thank you.

18 JUDGE MOLOTO: Just before he moves out, can we move into private

19 session for that purpose of exiting.

20 [Private session]

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 8748

1 [Open session]

2 Mr. Mundis, I suspect you are going to ask that we get an MFI

3 number for this, and we are going to do that. Can we please give an

4 exhibit number to PO1714.

5 THE REGISTRAR: Your Honour, Document P1714 becomes Exhibit

6 number 1397, marked for identification.

7 JUDGE MOLOTO: Thank you very much.

8 Madam Vidovic, before we take the break, are you able to let us

9 know the status? Are we going to hear the next witness today?

10 MS. VIDOVIC: [Interpretation] Your Honours, our next witness is

11 due to testify on Monday afternoon. Unfortunately, it was very

12 difficult, or rather, complicated to arrange for the rival of this

13 witness to The Hague, and it was impossible to arrange it, indeed, before

14 Monday afternoon.

15 JUDGE MOLOTO: I will just ask you so that we don't come back

16 from break only to be told that.

17 So you want us to adjourn to Monday?

18 I beg your pardon.

19 MR. MUNDIS: Your Honours, perhaps we could briefly respond

20 orally to the Rule 70 motion that had been filed --

21 JUDGE MOLOTO: Yes, please.

22 MR. MUNDIS: -- with respect to the witness for Monday.

23 We need probably to go into private session in order to do that.

24 JUDGE MOLOTO: May the Chamber please move into private session.

25 [Private session]

Page 8749











11 Pages 8749-8751 redacted. Private session.















Page 8752

1 (redacted)

2 (redacted)

3 --- Whereupon the hearing adjourned at 10.18 p.m.,

4 to be reconvened on Monday, the 21st day of April,

5 2008, at 2.15 p.m.