Page 5085
1 Wednesday, 25 June 2008
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 9.05 a.m.
5 JUDGE ORIE: Good morning to everyone.
6 Mr. Registrar, would you please call the case.
7 THE REGISTRAR: Good morning, Your Honours, good morning to
8 everyone in the courtroom. This is case number IT-06-90-T, The
9 Prosecutor versus Ante Gotovina et al.
10 JUDGE ORIE: Thank you, Mr. Registrar.
11 The parties may have noticed that I did not give the usual
12 instruction at the end of yesterday's session to the witness.
13 Immediately after court I asked Mr. Registrar to convey this same
14 instruction to the witness.
15 Mr. Kehoe.
16 MR. KEHOE: Yes, it was conveyed to us by Mr. Monkhouse and
17 everything is fine as far as the Defence is concerned.
18 JUDGE ORIE: Mr. Tieger.
19 MR. TIEGER: Yes. With respect to that, of course, our position
20 is the same, Your Honour.
21 I just wanted to bring to the Court's attention, since it was
22 raised yesterday, the matter of the review of the six audio clips that
23 were played. As it turns out there are not -- at least as I now
24 understand it, full transcripts available for those or anything
25 approaching full transcripts available for those audiotapes. They
Page 5086
1 constitute a total of in excess of six hours, so I was unable to review
2 them and it will obviously take some time to do so. I don't anticipate,
3 as I think yesterday, there will be any objection to the excerpts
4 themselves but of course the Prosecution wishes to have an opportunity to
5 review the entirety of the transcripts to see if the additional portions
6 need to be admitted.
7 So I think given the length of those transcripts of the
8 audiotapes, I would ask for a week to -- or so to look them over. I
9 mean, I will not be able to do that today, obviously, or approach
10 completing it today.
11 JUDGE ORIE: We will see what the possible consequences are
12 because, of course, I'm aware that if any other portions of those
13 audiotapes would need attention, then of course the witness has gone by
14 then.
15 We'll then consider what to do understand those circumstances,
16 whether there would be any need to recall the witness. I'm not
17 suggesting to do that. But, at the same time, we'll have to see what
18 happens, what the positions of the Prosecution will be, and then we'll
19 act accordingly.
20 MR. MISETIC: Thank you, Your Honour. If I may.
21 I -- we have no objection to that, to let them review the audios,
22 obviously. If I can just clarify I -- then obviously misunderstood what
23 I was being asked yesterday. I thought I was being asked if the actual
24 portions that we were playing had been transcribed not that we had, as he
25 said, six hours of audio. We obviously don't have the resources to
Page 5087
1 transcribe audio, particularly audio that we aren't going to use in
2 Court. Our procedure essentially was what we do with videos, for
3 example, if we cut a certain portion of what is an otherwise a longer
4 video we, I think, have reached an agreement with the Mr. Tieger that we
5 will present the audio -- short clip and then give them the complete raw
6 footage, for example, so that they have the entire material which is how
7 I was proceeding yesterday was to give them the whole audio but to
8 transcribe the actual portion used in court.
9 JUDGE ORIE: Yes, I do see that. Of course, we should needless
10 transcribing. Perhaps, Mr. Tieger, if you could work on the basis of the
11 video and the audio material without transcripts to start with and then
12 to see whether the context reveals any important issues which should be
13 dealt with.
14 Yes. Thank you.
15 Mr. Kehoe, you're ready.
16 MR. KEHOE: Yes, Your Honour.
17 JUDGE ORIE: Then once the witness is in, you can start using
18 your one hour and seven minutes remaining.
19 MR. KEHOE: Thank you, Your Honour.
20 [The witness entered court]
21 JUDGE ORIE: Good morning, Mr. Galbraith. I'd like to remind
22 you, as I did yesterday, that you're still bound by the solemn
23 declaration you gave at the beginning of your testimony and Mr. Kehoe
24 will now continue his cross-examination.
25 You may proceed.
Page 5088
1 WITNESS: PETER WOODARD GALBRAITH [Resumed]
2 Cross-examination by Mr. Kehoe: [Continued]
3 Q. Good morning, Mr. Ambassador.
4 A. Good morning.
5 Q. Mr. Ambassador, I would like to shift subjects for one moment --
6 for a few moments if I may and show you a few documents and then ask you
7 a few questions about them. This relates to a normalisation agreement
8 between the FRY and the Republic of Croatia
9 1D33-0199 first.
10 As it states on the front page this is a letter dated
11 September 11th, 1996
12 United Nations addressed to the Secretary-General, and it's signed by
13 Mario Nobilo, Ambassador, permanent representative, and has to do with
14 the agreement on normalisation of relations between the Republic of
15 Croatia
16 If we could turn to the next page, it begins with the agreement
17 itself. And if we could go to yet the next page and focus on the Article
18 7, and Mr. Ambassador I'm not going to read the whole thing, but if at
19 any moment, Mr. Ambassador, you want to stop and read one particular
20 portion please let me know.
21 Article 7, paragraph 1: "The contracting parties shall ensure
22 conditions for the free and safe return of refugees and displaced persons
23 to their places of residence or other places and that they -- that they
24 freely choose. The contracting parties shall ensure to these persons the
25 return of their property or a adjust compensation.
Page 5089
1 "2. The contracting parties shall ensure full security to the
2 refugees and displaced persons who return. The contracting party the
3 shall assist these persons to ensure the necessary conditions for a
4 normal and safe life.
5 "3. The contracting parties shall declare a general amnesty for
6 all acts committed in connection with the armed conflicts except for the
7 gravest violations of humanitarian law having a nature of war crimes."
8 And if we can just follow up two more pages to the back of the
9 signature page. It is signed in Belgrade on 23 August 1996 by Mate
10 Granic for the Republic of Croatia
11 of Yugoslavia
12 If we could move to one more document, Mr. Ambassador, before we
13 ask a few questions in this regard. I would like to bring up 1D33-0458.
14 If you can blow that up a bit.
15 This is an Article by Chris Hedges of the New York times, 24
16 August 1996, and it discusses your comments, Mr. Ambassador, at the
17 middle of the page. You can see the middle of the page beginning with:
18 "This is a historic development said American ambassador to Croatia Peter
19 W. Galbraith, the Serb-Croat conflict was" --
20 A. I'm sorry. I was -- oh, there it is.
21 Q. I'm sorry. It's in the middle of the page, I apologise. It's
22 four lines down, four paragraphs down.
23 Are you with me sir?
24 A. I am, I am.
25 Q. Okay. "Serb-Croat conflict was at the root of the war in the
Page 5090
1 former Yugoslavia
2 countries that emerged from the former Yugoslavia is a significant factor
3 in the effort to achieve regional stability."
4 Moving to the bottom of that page, there's another comment by
5 you, Mr. Ambassador. The last line. It says: "There is lot in here
6 that is good for the ordinary Serb," said Mr. Galbraith."
7 Mr. Ambassador, just taking these two documents together, can you
8 discuss the process that went into the Republic of Croatia
9 entering into this accord?
10 A. This took place after the Erdut and Dayton peace agreement and
11 both countries had an interest in normalisation of relations, including
12 establishment of normal trade relations, so I think that is the
13 background to it.
14 On the issue of the return of refugees the commitment and
15 compensation, obviously there would have been political pressure in
16 Yugoslavia
17 Croatia
18 paper was the very intense pressure that the United States put on
19 Tudjman. We actually imposed sanctions on Croatia and were threatening
20 to cancel the MPRI licence, which was very important to them, unless they
21 agreed to the return of refugees and to the right of these Croatian
22 citizens as we saw them, to get their citizenship and to recover their
23 property.
24 So in effect on that point which is one you were drawing
25 attention to the agreement with Yugoslavia
Page 5091
1 a concession as part of that process but something that Croatia had been
2 forced to do particularly by United States pressure.
3 Q. And United States pressure, did that this also include this --
4 this amnesty provision that is set forth in paragraph 3, this general
5 amnesty that we just discussed for all acts committed in connection with
6 the armed conflict except for the gravest violations of international
7 humanitarian law having the nature of war crimes?
8 A. Amnesty was one of the things that we wanted to see for a number
9 of reasons. First, it was essential to the implementation of the Erdut
10 Agreement, because the idea behind the Erdut Agreement it was that the
11 territory would change hands from Serbian control to being a normal part
12 of Croatia
13 the men there could be indicted for rebellion or treason or a range of
14 other maybe more, you know, smaller crimes, then they would leave and
15 also people who may have committed these crimes would not be able to
16 return.
17 So that was -- certainly there was a very strong desire on our
18 part that crimes like treason and amnesty -- that there be an amnesty for
19 crimes like treason, rebellion against the Croatian state, which
20 incidentally is normal in many cases when wars end.
21 We were against amnesty in for war crimes and serious crimes like
22 murder and rape. And with regard to war crimes we -- we believed and
23 insisted that what we called the rules of the road would apply; namely,
24 that if there was somebody who was accused of a war crime, that case
25 would be referred to this Court which would then make a determination as
Page 5092
1 to whether was there prima facie case of it being a war crime, possibly
2 take jurisdiction here, and if they didn't and if they agreed that it was
3 a war crime, then it could be prosecuted domestically in either Croatia
4 The same rules applied to Bosnia and Herzegovina.
5 Q. If I may, Mr. Ambassador, just take a little break. I may just
6 discuss a couple of elements of your statement, the first being that, and
7 correct me if I'm wrong, it was never contemplated there would be an
8 amnesty for murders or rapes?
9 A. Well, we did not -- we the United States did not support an
10 amnesty for murders or rapes.
11 Q. I understand. But for lower-level crimes or in addition --
12 lower-level crimes with charging people coming back with burning or
13 looting, those are the types of crimes that you wanted an amnesty?
14 A. I don't actually remember our position on those crimes. What I
15 remember us being most focussed on was an amnesty for treason, rebellion,
16 those bigger crimes, and maybe some smaller crimes, but I don't know -- I
17 can't remember what position we might have taken on arson, for example.
18 Q. Well, ultimately, even with regard to war crimes, the United
19 States and the UN put pressure on Croatia to limit the prosecution of
20 Serbs coming back for war crimes to 25 people, did they not?
21 A. I don't recall. What I recall frankly were the rules of the
22 road; namely, that if somebody was to be charged with war crimes it would
23 be referred to this Tribunal which would make a determination and then
24 there could either be prosecution here or domestically. I don't recall
25 any notion of limiting it to numbers.
Page 5093
1 Q. You don't recall any number of 25 at all?
2 A. I don't at this point.
3 Q. But this amnesty law was designed to cover, barring serious war
4 crimes, was designed to cover all the people in the former Yugoslavia
5 the Republic of Croatia
6 agreement. Isn't that right?
7 A. You're referring now to the Croatia-Yugoslavia agreement.
8 Q. Yes, in paragraph 3 it was a general amnesty for everybody.
9 A. That -- that would have been an a bi-lateral agreement but it
10 wouldn't have actually implemented the amnesty. That would have
11 required, presumably, separate domestic legislation.
12 Q. But as far as the two countries were concerned, it was covering
13 everybody, that was what was contemplated? As we can see in the
14 paragraph there is no distinction between Serb or Croat or Muslim. It
15 says a general amnesty.
16 A. I would have to go back and look at that specific
17 paragraph again. I mean, did I read it but --
18 MR. KEHOE: We can return back. It is 1D33-0199. If we could go
19 to Article 7, paragraph 3.
20 Q. You see that, sir, it is just a general amnesty?
21 A. Yes. That is correct.
22 MR. KEHOE: Your Honour, at this time we will offer into evidence
23 1D33-0199 and 1D33-0458.
24 MR. TIEGER: No objection, Your Honour.
25 JUDGE ORIE: Mr. Registrar.
Page 5094
1 THE REGISTRAR: Your Honours, 1D33-0199 becomes Exhibit D412.
2 And 1D33-0458 becomes Exhibit D413.
3 JUDGE ORIE: D412 and D413 are admitted into evidence.
4 MR. KEHOE: Your Honour, just before I make one comment.
5 Q. Mr. Ambassador, there was a degree of pressure and you mentioned
6 a degree of pressure from the United States but also from the
7 international community to pass this amnesty law, was there not?
8 A. Yes. We -- we worked closely with our European allies and the
9 Russians and United Nations.
10 MR. KEHOE: Your Honour, we have a degree of documents that we'll
11 pass across the bar table, and naturally we'll give it to our colleagues
12 across the bar, concerning various international documents requesting
13 that this amnesty -- this amnesty law be passed. Of course, we won't
14 take up the time to go through it right now, but we will pass that there,
15 basically UN documents and UN Security Council documents so we can move
16 on to another subject, but I will consult with my colleague, Mr. Tieger,
17 before we pass those across the bar table.
18 JUDGE ORIE: Yes. And then we'll hear from Mr. Tieger whether
19 there are any objections.
20 MR. KEHOE: I'd like to -- I'm sorry, Your Honour.
21 Q. Mr. Ambassador, I would like to talk to you just a few brief
22 moments.
23 In paragraph 33, you are talking -- paragraph 33 of your
24 statement, if you will.
25 In paragraph 33, you note -- I'm sorry, sir, do you have it?
Page 5095
1 A. I do.
2 Q. "After the flight in August of Krajina Serbs, however,
3 President Tudjman was very much focussed and very clear that they should
4 not come back. He explained that the Serbs had opted out of being Croats
5 and that he had offered them a chance to stay and they left. Croatia
6 could not take this disloyal group back into the heart of Croatia."
7 Now, right after the Krajina war I think we talked yesterday
8 about the continuation of the war from August into September and October,
9 and I would like to present a document which is 1D33-0190. And, again,
10 Mr. Ambassador, I just want to show you a series of documents and some
11 other items before we entire into this area if we may?
12 A. Can I just comment. There is a typo there in 33. It should say,
13 "They had opted out of being Croatians," not "Croats."
14 Q. Oh, I'm sorry.
15 A. Needless to say --
16 Q. I understand, sir. Mr. Ambassador, this is a document. It is a
17 directive coming from Milan Martic, dated 4 September 1995, and it is the
18 formation of the RSK liberation army and coalescing into the combat
19 operations in the territory of the Republic of Srpska
20 suffice it to say, it's his order reforming the ARSK to join with the
21 forces of the Bosnian-Serb army, the VRS.
22 I know that you probably haven't seen this document before, sir,
23 I just wanted to bring it to your attention.
24 Before I begin this, I would like to turn to an individual which
25 is 1D330-188.
Page 5096
1 This a clip, Mr. Ambassador, of a movie called "The Fall of
2 Krajina" that was put together in Belgrade in 2006. The movie is called
3 the Red Berets.
4 [Videotape played]
5 MR. KEHOE:
6 Q. The last item that I would like to show you before we inquire is
7 one last document which is a seized VRS document, 1D33-0486. It has not
8 yet been released into e-court, so I would ask the Court's indulgence
9 with the court usher if we can hand a hard copy to this document to the
10 witness as well as the Court. It is a four-page document, Your Honours,
11 that has --
12 Mr. Monkhouse, I believe it's the other document, that is not
13 correct -- we can put it on Sanction, Your Honours.
14 [Videotape played]
15 Mr. Ambassador, this is a document that was seized after the fall
16 of the Krajina, as you can see in the back pages it -- it has a Cyrillic
17 type but it is an RSK document dated 1 January 1995.
18 A. Excuse me, the document I have has no Cyrillic type.
19 Q. No, if you can -- yours is the English. We're just going to deal
20 with the English if you look up the pages you can see the Cyrillic down
21 there but I gave you the translation.
22 A. All right. But you only me the two pages so there is nothing for
23 me to look at.
24 Q. That's fine. This is a document, an ARSK document that notes
25 available personnel for military service according to age and
Page 5097
1 qualification and it notes that the date on the document was 1
2 January 1995. And we'll just deal with the totals. The total available
3 personnel for military service, they note, various age categories in the
4 first column is 111.031. Do you see that sir?
5 A. I do.
6 Q. Now, with regard to the number of people who were available for
7 military service that had either been available or been in the ARSK,
8 would you agree with me that the Republic of Croatia
9 certain security concerns in bringing back a group of individuals they
10 had just been fighting against some two months prior. Would you agree
11 that that -- that the Republic of Croatia
12 security concerns?
13 A. No.
14 Q. At the particular time that -- I'm sure during this document in
15 January, but certainly after the war in the Krajina the war was still
16 going on certainly until sometime in October and thereafter, so during
17 those month the HV forces were continuing to fight with the joint forces
18 of the Bosnian-Serbs and the Krajina-Serbs, were they not?
19 A. Yes. I suppose some of them.
20 Q. So given the fact that they were still fighting these
21 individuals, is it still your position that the Republic of Croatia
22 should not have had security concerns, just bringing back people without
23 finding out who they were and what they had been doing?
24 A. Most of the people who left the Krajina were old, were women,
25 were children, were not combatants, and the Republic of Croatia
Page 5098
1 those people from returning, as well as able -- as well as military-aged
2 men. I don't think very many people who were intending to engage in
3 combat against Croatia
4 Q. Mr. Ambassador, then where did the 111.000 people available for
5 military service go?
6 A. Well, I mean.
7 MR. TIEGER: Excuse me, Your Honour, I'm sorry.
8 I'm having some difficulty myself parsing through this particular
9 document in identifying precisely what it is supposed to indicate. It
10 was indicated as an ARSK document. It is the not clear it me --
11 JUDGE ORIE: I think it Mr. Kehoe said an RSK not ARSK.
12 MR. KEHOE: RSK.
13 JUDGE ORIE: Yes.
14 MR. TIEGER: Okay. And so I guess I'm only concerned then about
15 any conflation between the forces of the RSK and the former forces of the
16 ARSK in questions relate to the document.
17 MR. KEHOE: My question - and pardon me if I have conflated ideas
18 here and I try to parse it more finely - but as of January 1995 this
19 document reflects 111.000 individuals available for military service.
20 And the issue is if in fact a large percentage of the people left the
21 Krajina, where did these 111 [sic] people who were available for military
22 service go.
23 JUDGE ORIE: Mr. Tieger.
24 MR. TIEGER: I'm really sorry, and maybe it is my problem, but as
25 I understand the question, it -- it assumes that 111.000 of the people
Page 5099
1 who left were those available for military service, and I can't find the
2 basis for that in this particular document, which I understand is an RSK
3 document.
4 JUDGE ORIE: Let's -- let's try to get matters straight.
5 It appears that on the 1st of January, 1995, the RSK considered
6 111.000 people available for military service. Among them 26.000 over 45
7 years of age; 8.000 up to 22 years of age. The whole range we find in
8 here.
9 Now, the question where they would go, Mr. Kehoe, shouldn't we
10 first establish whether there's any knowledge on, first of all, whether
11 all these 111.000 would go, but also where they came from. I mean, they
12 could have been in barracks; they could have been farming; they could
13 have been in the industry; they -- so it's a very general question, and
14 it is a hypothetical question, very much. So before we put this question
15 to Mr. Galbraith, I think we should further explore what we know about
16 these people. For example, how many of the 111.000 were already engaged
17 in military activities, perhaps all of them, or just all being available;
18 whether where they came from. We have heard evidence that there was a
19 general call for mobilisation. We also know that a lot of people were
20 still on their farms.
21 So, therefore, to say where should they go or where would they go
22 is of a high hypothetical nature, and I think Mr. Galbraith should be in
23 a position to tell us what he knows about it and whether he has ever
24 developed any thoughts on this issue, rather than to put this question to
25 him now.
Page 5100
1 I don't know whether it comes as a comprise to Mr. Galbraith or
2 whether he has given thorough thought to this question.
3 Let's hear from Mr. Galbraith.
4 THE WITNESS: Well, the first point I'd make is that this
5 actually provides some interesting data in connection with the question
6 you asked at the end of the session yesterday about the population,
7 because if you look at this document, first, we need to subtract -- let's
8 look at the total on the upper left-hand corner, 111.000. We immediately
9 need to subtract the Vukovar total, 41.000, because that is in eastern
10 Slavonia
11 So we're talking about 70.000 men in the age range -- well, of --
12 what would be remotely described as military. I don't know what the
13 phrase "up to 22 means." I presume that that's not counting infants,
14 male infants, but anyhow. So, first, it would suggest that the -- if
15 there are 70.000 men of military age in the Krajina, that the population
16 that left would be in the range not of 100.000 but maybe in the range of
17 200.000. We believed it was probably about 180.000.
18 Second, I have no idea how they're counting people, but it's
19 almost -- I mean, I can't believe that they have 70.000 men under arms,
20 because to have 70.000 men under arms well, first, out of a population of
21 100.000 which is what Tudjman was saying, would be totally absurd, out of
22 a population of 200.000 would be impossible and it certainly didn't match
23 what we had observed.
24 So in some sense I think the number of troops is probably summed
25 up by the phrase "conscripts and soldiers." And the phrase "reserve
Page 5101
1 soldiers" and "reserve NCOs" may have be anybody who had ever served in
2 the military which I think would be consistent with the Yugoslav system,
3 but that doesn't mean that those people were ever mobilised, ever capable
4 of being mobilised. About this I simply don't know.
5 But surely, surely, many most of what were called reserve
6 soldiers which is the largest category, it's 91.000 out of 111.000, 90
7 per cent, those reserve soldiers would be men engaged in ordinary
8 civilian occupations, not a military threat to anybody. And I can also
9 tell you from observation that people in the Krajina region, it was a
10 pretty tough existence, so beyond a certain age these guys were not very
11 fit.
12 Q. Thank you, Mr. Ambassador.
13 MR. KEHOE: At this time I'd like to offer into evidence
14 1D33-0486.
15 JUDGE ORIE: Mr. Tieger.
16 MR. TIEGER: Your Honour, can I -- I just have a sort of a
17 conditional no objection to that, and simply I just want to consult, I
18 don't have any objection in principle. I would like to consult with my
19 colleagues afterwards just about, I gather this is -- I think it was
20 represented as a captured document, I just want to confirm that with him
21 afterwards.
22 But in principle no objection to this document.
23 JUDGE ORIE: Then have you an opportunity to come back to it.
24 Would that be within the next 24 hours, would that be sufficient?
25 MR. TIEGER: Yes, Your Honour. Thank you.
Page 5102
1 JUDGE ORIE: Then Mr. Registrar.
2 THE REGISTRAR: Your Honours, this becomes Exhibit D414, marked
3 for identification.
4 JUDGE ORIE: Yes. We haven't seen the original yet, but, I take
5 it that the original will be uploaded in e-court --
6 MR. KEHOE: Yes, Your Honour.
7 JUDGE ORIE: -- soon. With the proviso that if the original
8 would show something different or would raise certain questions that they
9 can be raised either by the parties or by the Bench. But as matters
10 stand now, the document, which still needs a number -- no, it is D414 is
11 admitted into evidence.
12 MR. KEHOE: Your Honour, I'd also like to tender the Red Berets
13 video 1D33-0188.
14 JUDGE ORIE: Mr. Tieger, the video.
15 MR. TIEGER: I do have an objection at this point Your Honour,
16 but I'm not -- I haven't had a chance to fully explore that, but I'm not
17 confident that that document relates precisely to the subject matter
18 which was at issue here. So if I could have some period, again 24 hours
19 should be more than sufficient to check on that.
20 JUDGE ORIE: We've looked at the video, Mr. Kehoe, is it
21 perfectly clear what we are looking at, who was who? I saw a person
22 clearly visible. Was it about ARSK soldiers returning to, I take it in
23 Bosnia and Herzegovina, who were under -- who were treated in a way where
24 they were not free to decide what they wanted to do and in connection
25 with the document you earlier showed, is it that they were more or less
Page 5103
1 forced to join the armed forces so as to create a joint -- joint armed
2 force.
3 MR. KEHOE: After the video is after Storm Krajina Serbs in
4 Belgrade
5 JUDGE ORIE: Belgrade
6 MR. KEHOE: -- and then being sent to Erdut in Slavonia to fight
7 against the HV.
8 JUDGE ORIE: Yes.
9 MR. KEHOE: Excuse me --
10 JUDGE ORIE: I don't know whether the video in itself says --
11 MR. KEHOE: -- it's in Eastern Slavonia.
12 JUDGE ORIE: -- that it was in Belgrade because you said that it
13 was Belgrade
14 these, of course, that happened yesterday a couple of times as well, that
15 the Chamber is not knowing exactly what it is looking at and therefore
16 that is, as far as you understand, what the video shows us and then we
17 have the video itself.
18 24 hours, Mr. Tieger?
19 MR. TIEGER: That's fine, Your Honour, and I appreciate that.
20 JUDGE ORIE: Yes, Mr. Registrar so the Chamber is in a position
21 to review or reconsider the decision that will be taken now.
22 Mr. Registrar it will would be number?
23 THE REGISTRAR: This becomes Exhibit D415, marked for
24 identification.
25 JUDGE ORIE: Yes D415 is admitted into evidence.
Page 5104
1 MR. KEHOE: And Your Honour, the other document is the formation
2 of the ARSK by Mr. Martic dated 4 September 1995, that's 1D33-0190.
3 JUDGE ORIE: Mr. Tieger.
4 MR. TIEGER: No objection, Your Honour.
5 JUDGE ORIE: Mr. Registrar.
6 THE REGISTRAR: Your Honours, this becomes Exhibit D416.
7 JUDGE ORIE: Thank you. D416 is admitted into evidence.
8 Mr. Kehoe, the Chamber has access to these documents on their
9 computers once they are admitted into evidence or marked for
10 identification. We have no access to the uploaded material which is not
11 yet tendered. So, therefore, in order to be able to go back to these
12 documents because often you used documents in a certain context together
13 with other documents, Chamber would appreciate if you move as quickly as
14 to possible having it assigned a number and at least getting a status so
15 that we can review them by ourselves.
16 MR. KEHOE: Yes, Your Honour.
17 JUDGE ORIE: Please proceed.
18 MR. KEHOE: Thank you, Your Honour.
19 Q. Just going back, Mr. Ambassador, to compound some of the problems
20 with bringing the refugees back, did you know that the RSK when they left
21 the Krajina took the records with them when they -- and records I'm
22 talking about personnel records, administrative records, and financial
23 records, police records, communication records, were you aware of that?
24 A. I'm certainly not aware of that now.
25 Q. And you were aware that during this time-frame, at least prior to
Page 5105
1 the normalisation of relations, there was no diplomatic relations and
2 certainly no consular authorities -- the Republic of Croatia
3 any consular authorities in Belgrade
4 A. There was a liaison office in Zagreb between the two countries.
5 I'm not -- I can't now remember when that was set up, and of course
6 people also had the possibility of trying to get documents in other
7 countries and were never allowed to.
8 Q. With the limitations on time we will hand across the bar table
9 the report of the Helsinki Committee for Human Rights in Serbia where
10 they discuss the lack of consular authorities in getting proper
11 documentation, but I am limited with time, Mr. Ambassador, so we will
12 hand those across the bar table at the appropriate time?
13 Let me bring a couple of pictures up for you, and if I can get
14 the numbers. First one is 1D33-0436, and if we can go to that one first.
15 And we go to the next one is 1D-- excuse me, before we go to
16 that, you do notice General Gotovina in the centre of that photograph
17 with American army officers, sir?
18 A. I'm sorry, the picture is not sufficiently good for me to
19 identify people, but if you tell me that's General Gotovina, I'll believe
20 you.
21 Q. Well, you did know that General Gotovina did attend the
22 International Military and Education Programme in Washington D.C.
23 September of 1996?
24 A. I suppose I'm sure I knew that at that time, assuming he attended
25 it, yes.
Page 5106
1 Q. Let us go to the next photograph. That's 1D33-0437.
2 If we can just blow that up a little bit. I'm sure you and I are
3 familiar with that location, General Gotovina being the centre individual
4 in the back.
5 Now, Mr. Ambassador during your term as the ambassador of
6 Croatia
7 three occasions: In September of 1996, April of 1997, and January of
8 1998. You were aware of that, sir?
9 A. I'm -- again, it's been, you know, many years, so I -- I really
10 can't recall the specifics of it, but what I can tell you is that if
11 General Gotovina went to the United States, and obviously he did, I
12 certainly knew about it, and if he went on a US programme I approved it.
13 With regard to January of 1998, if it was after January 3rd,
14 Ambassador Montgomery was the ambassador. I left that day.
15 Q. Well, in any event, taking this yet further, the United States
16 government keeps a list of people who are eligible to come into the
17 United States; is that right?
18 A. No.
19 Q. Well, can you explain -- let me take that a little bit further.
20 When a person, such as General Gotovina, asks to come into the
21 United States they request a visa, and in getting that visa coming from
22 Croatia
23 will give those visas to and who they will not; is that right?
24 A. No.
25 Q. Well, can you explain the scenario?
Page 5107
1 A. Somebody applies for a visa and then she or he -- application
2 will be considered in compliance with the immigration law which has a
3 number of grounds for exclusion. The most common of which being that we
4 think the person is going to be an intending immigrant. But there are
5 other grounds for exclusion as well.
6 Q. Now, going into your testimony in the Prlic case, the situation
7 come up with Mr. Mate Boban who was the President of the Herceg-Bosna; do
8 you recall that.
9 A. Yes, I recall it very well.
10 Q. And Mr. Boban was not given a visa to come to the United States
11 because he had been entered into the United States visa system as a war
12 criminal; is that right?
13 A. We don't have a list of people we -- that we -- that we permit to
14 come in, but we will have a list of people that we may exclude and the
15 consul general had entered Mr. Boban's name as a person suspected of war
16 crimes, yes, and so on that ground he was excluded.
17 Q. Okay. And by the way, just for frame of reference in the Prlic
18 case, this is page 6525 lines 15 to 20 -- 25.
19 Now, no such limitation had been placed on General Gotovina and
20 no such refusal to allow General Gotovina to come into the United States
21 was ever made, was it?
22 A. No.
23 Q. So for 1996, 1997, and I understand you weren't there after 1998,
24 to your knowledge, the United States had never listed General Gotovina as
25 a war criminal in their system, had they?
Page 5108
1 A. That statement is correct.
2 Q. Now, let me talk about a couple of issues as we end.
3 MR. KEHOE: If I can just have one moment, Your Honour.
4 [Defence counsel confer]
5 [Trial Chamber confers]
6 JUDGE ORIE: Please proceed, Mr. Kehoe.
7 MR. KEHOE: Yes, Your Honour, before I move on to the next
8 subject, and I know my time is very short, consistent with Your Honours'
9 instructions, I would like to move these two photographs into evidence,
10 1D33-0436 and 1D33-0437.
11 JUDGE ORIE: Mr. Tieger.
12 MR. TIEGER: No objection, Your Honour.
13 JUDGE ORIE: Mr. Registrar.
14 THE REGISTRAR: Your Honours, 1D33-0436 becomes Exhibit D417;
15 and 1D33-0437 becomes Exhibit D418.
16 JUDGE ORIE: D417 and D418 is admitted into evidence.
17 MR. KEHOE:
18 Q. Very briefly --
19 MR. KAY: Your Honour, if I can just intervene I heard Mr. Kehoe
20 was concerned about his time. I have no questions to ask of the witness
21 so it frees the Court timetable somewhat.
22 JUDGE ORIE: That's still to be seen, whether it's -- whether we
23 can compensate between one or the other. The Chamber is not limiting the
24 time because it would not grant sufficient time for cross-examination
25 but, of course, the Chamber looked at how the time was used.
Page 5109
1 Please proceed.
2 MR. KEHOE:
3 Q. Just covering two more topics briefly, Mr. Ambassador, on
4 paragraph 52 -- of your statement, you talk about some looting taking
5 place in Ripac. You say that "I visited Ripac sometimes later perhaps as
6 three weeks afterward."
7 Do you see that, sir?
8 A. Yeah. Yes, I do. I did not mean to imply that the looting took
9 place in Ripac. What I was describing was a trip that went through Ripac
10 from Ripac to Donji Lapac and the looting was in the area between Ripac
11 and Donji Lapac and then in Donji Lapac. Ripac, as I recall, is actually
12 in Bihac, in Bosnia
13 the control of the Bosnian government. So there wouldn't have been
14 looting there.
15 Q. And with regard to Donji Lapac, you don't know if that was an
16 area that was under the control of General Gotovina and his forces, do
17 you?
18 A. I do not.
19 Q. One last area. If I can -- and we talked a little bit about the
20 importance of Eastern Slavonia, and you were talking about your efforts
21 to bring Eastern Slavonia -- to reintegrate even Slavonia
22 that, sir?
23 A. Yes.
24 Q. And I think you talked about the fact that Eastern Slavonia was
25 one of the places where people in fact stayed; is that correct?
Page 5110
1 A. Yes.
2 Q. And that was -- was that part of the Erdut Agreement that you
3 executed?
4 A. That I negotiated.
5 Q. Yes, excuse me. I apologies.
6 A. Yes.
7 Q. The verb was wrong, that you assisted and negotiated?
8 A. Yes. I was the negotiator of that, the United Nations headed by
9 General Jacques Klein were the executors of it.
10 Q. And when did that agreement come into effect? When was it
11 signed, better still?
12 A. 12th November 1995.
13 Q. Let me show you a document, sir. That is a -- and it is
14 1D33-0440. And if we can bring this up.
15 While we're bringing this up, Mr. Ambassador, this is a report of
16 the OSCE mission to the Republic of Croatia
17 meeting international commitments since May 1998, and that document is
18 dated 8 September.
19 A. 8 September of what year?
20 Q. I'm sorry, of 1998. Just show the cover page here, sir. And if
21 we can go to page 6 of this document, which is paragraph 23.
22 In paragraph 23, Mr. Ambassador, it notes that "The UNHCR
23 estimates that between August 1996 and July 1998, some 16.000 of the
24 67.000 Serbs," and let me interject here, my math says that's 24
25 per cent. "16.000 of the 67.000 Serbs who were residents of the region
Page 5111
1 before the war have left the country mostly to the Federal Republic
2 Yugoslavia
3 trend since the May Progress Report."
4 Now the Danube
5 A. Yes, it is.
6 Q. And this document reflects that notwithstanding the agreement
7 that you assisted in bringing about, we still had an exodus of 24
8 per cent of the Serb population. Isn't that right?
9 A. Yes, and that compares to close to 100 per cent from the Krajina.
10 Q. And despite the end of the war, despite the efforts of your --
11 that you made to bring back a resolution to this, we still had some
12 16.000 people leaving as the document reflects, Serbs leaving?
13 A. Look, our position was that people should have a free choice. If
14 they wanted to stay in Croatia
15 leave and another country was prepared to receive them, that was their
16 right. And those that had fled the Krajina should have the right to
17 return home and recover their property. Whether they did or not, frankly
18 that was not our concern. Our concern was simply that refugees have --
19 every refugee have the right to return. That was a fundamental principle
20 for us.
21 MR. KEHOE: Your Honour, at this time we'll offer 1D33-0440 into
22 evidence.
23 JUDGE ORIE: Mr. Tieger.
24 MR. TIEGER: No objection, Your Honour.
25 JUDGE ORIE: Mr. Registrar.
Page 5112
1 THE REGISTRAR: Your Honours, this is becomes Exhibit D419.
2 JUDGE ORIE: D419 is admitted into evidence.
3 MR. KEHOE:
4 Q. And one last question on this score, Mr. Ambassador.
5 During this time-frame, and we're talking August 1996 to
6 July 1998, this was still an UN-administered area, wasn't it?
7 A. No. The UN administration ran from January of 1996 until
8 January 15th of 1998.
9 Q. So certainly from the beginning of this until six months prior to
10 that it was administered?
11 A. For 18 months of the two-year period, yes.
12 Q. Mr. Ambassador thank you very much for your time. I appreciate
13 it. Your Honour, I have no further questions. I think my time has
14 expired.
15 JUDGE ORIE: You stayed fairly within the time limits I set. I
16 said one hour and seven minutes and that was one hour ago.
17 MR. KEHOE: Your Honour, you've got to cut me a little slack
18 here.
19 JUDGE ORIE: Yes. We understood that the Cermak Defence has no
20 questions. That has not changed meanwhile. Then the Markac Defence.
21 MR. KEHOE: Yes, Your Honour. I think that the Markac Defence
22 asked me if there was a possibility that they will just get a short break
23 while we coordinate here.
24 JUDGE ORIE: Yes, as a matter of fact, I was informed about that.
25 Perhaps we could have an earlier break, so as to make it possible for
Page 5113
1 you. Usually we have a break at 10.30.
2 Let's have an early break and then resume at 25 minutes to 11.00.
3 --- Recess taken at 10.09 a.m.
4 --- On resuming at 10.38 a.m.
5 JUDGE ORIE: Mr. Galbraith, you will now be cross-examined by
6 Mr. Kuzmanovic, who is counsel for Mr. Markac.
7 Mr. Kuzmanovic.
8 MR. KUZMANOVIC: Thank you, Your Honour.
9 Cross-examination by Mr. Kuzmanovic:
10 Q. Ambassador Galbraith, I wanted to follow up on something that you
11 were discussing towards the end of your testimony with Mr. Kehoe, and
12 that is the issue of return of Serbs from the Krajina and actually
13 from -- whether or not they lived in Krajina. The return of Serbs into
14 Croatia
15 prevented Serbs from returning into the Krajina after Operation Storm.
16 Is that accurate?
17 A. I think the most accurate way to say it would be that the
18 Croatian government attempted to make it impossible for Serbs to return.
19 Q. They did in fact return, did they not?
20 A. Very few -- well, in the period that we're talking about, very
21 few, eventually and because of US and European pressure, the -- the
22 prohibitions on return and the legal impediments to return were relaxed,
23 more people returned, and then after Tudjman died and a new president and
24 parliament elected, then Croatia
25 they sought to encourage returns.
Page 5114
1 Q. I'm looking at the issue of return in the period that you say
2 there were few if any returns. What period of time are you talking?
3 Given that Storm might have happened in August of 1995, and your mandate
4 ended in I believe you said January of 1998, correct?
5 A. That is correct and in that period there were relatively few
6 returns. There were more in 1997 than in 1996, and that was, again,
7 because of the pressure that we applied.
8 Q. Let's go to 1D -- I'm sorry, 3D00-1310, please. Actually, let's
9 go -- I'm sorry let's go to 3D00-1306. If we could get that up on the
10 screen, please.
11 And as it's coming up on the screen, I'll represent to you,
12 Ambassador Galbraith, that this is a report written in the year 2000 from
13 the Croatian government, a report that discussed the return of exiles,
14 refugees, and displaced persons into Croatia from those person who had
15 left Croatia
16 just an excerpt, this is a 64-page report in the year 2000, and if we
17 could take a look at the page on the right, if we could enlarge that a
18 little bit or make it full, please.
19 Page 49, we've had translated, talks about a return, and it said
20 in the beginning: "A mass return of Croatian displaced persons began in
21 late summer 1995," which was something that was expected, was it not,
22 Mr. Ambassador, a return of Croats from areas from which they were
23 ethnically cleansed between 1991 and 1995?
24 A. That was expected and very much desired.
25 Q. If -- I'm pausing here not for dramatic effect but for the
Page 5115
1 translators.
2 If you look at the second paragraph, that begins: "Total return
3 to Croatia
4 January 5 of 2000, 41.141 Serbian returnees from Yugoslavia and Bosnia
5 and Herzegovina
6 homes in Croatia
7 through the implementation of the programme of return, after June 26th of
8 1998.
9 Now, President Tudjman was president until when?
10 A. I think he died on or about December 14th, 1999.
11 Q. Okay. So at least as of this document, if you include the year
12 2000, a year after -- shortly after President Tudjman's death, the report
13 of 41.141 Serbian returnees is given for a total return to Croatia, is it
14 not?
15 A. Yes. I certainly wouldn't consider any great significance to it
16 as an indication of Croatia
17 Q. Well, nonetheless 41.000 people came back when you said that
18 there were relatively few that came back, correct?
19 A. No, that isn't quite what I said. What I said was that in the
20 period of -- that I was there, well, let be me precise about what I said.
21 What I said was when the Serbs left, Croatia took every legal means
22 possible to prevent their return prohibiting them from citizenship if
23 they did not come back within 30 days and confiscating their property if
24 they did not return in 30 days. Under US pressure that was extended to
25 90 days. Under US and European pressure, that barrier was -- those
Page 5116
1 prohibitions were eventually lifted.
2 Q. Mr. Galbraith, I understand that you said that, the numbers here
3 says 41.141 -- [Overlapping speakers]
4 JUDGE ORIE: Mr. Kuzmanovic.
5 MR. KUZMANOVIC: Sorry, Your Honour.
6 JUDGE ORIE: Is 10 percent relatively few? Is 40 relatively few?
7 Is 70 per cent relatively few? That depends on what you expect and what
8 would be the normally the case. Let's talk about numbers and then
9 we'll -- the Chamber will be able to decide whether it is a few or a lot,
10 and if you insist that Mr. Galbraith answers the questions in the sense
11 of what you apparently consider relatively few, then it's fully
12 understandable that Mr. Galbraith then starts explaining rather than
13 to -- to join or to contradict a judgement -- what would be a judgement
14 of what is relatively few or relatively a lot.
15 MR. KUZMANOVIC: I understand, Your Honour.
16 JUDGE ORIE: Please proceed.
17 MR. KUZMANOVIC:
18 Q. Mr. Galbraith, I'm not trying to get into an argument with you,
19 here. You said that 180.000 Serbs left the -- the Sectors North and
20 South after Operation Storm, roughly, correct?
21 A. Yes, that was our guess.
22 Q. And what was that guess based on, by the way?
23 A. It was based on our estimate of the population, it was based on
24 estimates from UNHCR, I -- at this stage I can't go into -- I can't
25 recall all the details, but I'm sure there is a fairly good documentary
Page 5117
1 record for this. And I must say incidentally, and I must say a bit to my
2 surprise, is consistent with that document which Mr. Kehoe submitted
3 which showed 70.000 men in the military-age range or what was very
4 generously described as the military-age range.
5 Q. Well, at least from the percentages you had earlier stated that
6 you expected at most 20 per cent of the population to return to Croatia
7 after Operation Storm. Correct?
8 MR. TIEGER: I think that is --
9 JUDGE ORIE: That is again the issue I raised earlier, that is
10 what was expected. Let's stick to the figures.
11 From this report I see that by 2000, 41.000, that's at least what
12 the report says, returned, and then out of these 41, that 23.147 returned
13 through the implementation of the programme of return after mid-1998.
14 That means until mid-1998 apparently some 18.000 returned, and in
15 relation to the numbers, the estimates given by Mr. Galbraith, that's 10
16 percent, and that after the 26th of June, 1998, apparently a higher
17 number returned, that is more than the total number that returned until
18 that moment. That's what the figures tell us.
19 We can -- what percentages are is just a matter of using your
20 calculator.
21 Please proceed.
22 MR. KUZMANOVIC: Thank you, Your Honour.
23 Q. Mr. Galbraith, nonetheless, not getting into any percentages
24 using the figures that are in this report, this number of people did come
25 back prior to President Tudjman leaving office. Correct?
Page 5118
1 A. According to this report, if it's correct.
2 Q. Yes.
3 A. And -- and incidentally there is -- it does not mean that all
4 those -- that the 41.141 were people who had been -- who had fled the
5 Krajina.
6 Q. Well, it talks about Serbian returnees from Yugoslavia and Bosnia
7 and Herzegovina
8 Croatia
9 A. That's how I read that, yes.
10 Q. Okay. Now --
11 MR. KUZMANOVIC: Your Honour, I would like to tender this
12 document, please.
13 JUDGE ORIE: Mr. Tieger.
14 MR. TIEGER: No objection, Your Honour.
15 JUDGE ORIE: Mr. Registrar.
16 THE REGISTRAR: Your Honours this becomes Exhibit D420.
17 JUDGE ORIE: D420 is admitted into evidence.
18 MR. KUZMANOVIC: Thank you, Your Honour.
19 Q. Next I'd like to call -- by the way, Mr. Ambassador, do you have
20 any information or figures that would -- that would contradict the items
21 in this exhibit that we just saw?
22 A. My mandate in Croatia
23 period when there were relatively fewer returns than the total here, as
24 Judge Orie has just pointed out.
25 And, second, I have not meant to suggest that there were no
Page 5119
1 returns. I have meant to testify that Tudjman didn't want any returns,
2 but I have also testified that the United States and European countries
3 put enormous pressure on Croatia
4 if they're correct, to my mind simply reflect the great success of
5 American and European diplomacy and so I'm very pleased to see those
6 numbers but that doesn't in any way contradict or diminish my point which
7 is that Tudjman did not want the returns, put every legal barrier in
8 front of it, and in my view permitted the destruction of the Serb
9 property in order to make it impossible for people to return.
10 Q. We've heard that, Mr. Galbraith, but that wasn't my question. My
11 question was, do you have any information or figures that would
12 contradict the items, the numbers in this exhibit that we just saw. Yes
13 or no?
14 A. No.
15 JUDGE ORIE: Mr. Kuzmanovic, may I point to you that when putting
16 the figures to the witness, you give your own interpretation, for example
17 the period after 26th of June, 1998, until 2000, you're talking about the
18 period when President Tudjman's still was alive. Of course we have no
19 figures on that, and you include in your question suggestions and that
20 confuses me, at least. And I will try to clarify this.
21 Mr. Galbraith, one question in relation to this. It's not a yes
22 or a no question. The programme of return of which I think we have not
23 heard much or anything at all until this moment, do you have any
24 knowledge of how that programme was developed or established.
25 THE WITNESS: Very little, because this took place after I left
Page 5120
1 Croatia
2 JUDGE ORIE: Yes. Very little. What do you know, if anything,
3 then please tell us.
4 THE WITNESS: No, simply that we had pushed during my time for
5 Croatia
6 there was such a programme. As to the mechanics and the degree of
7 success, I don't know. It was implemented after I left.
8 JUDGE ORIE: Yes. I'm not primarily talking about the content
9 but since you emphasised a couple of times that there was quite some
10 pressure upon Croatia
11 know much or if anything at all, whether this is to be linked in any way
12 to the pressure exercised.
13 THE WITNESS: I would say that it's a 100 percent certain that
14 this is a -- that the pressure that was applied by the United States
15 European partners was a major factor in Croatia's decision to have this
16 programme.
17 JUDGE ORIE: Thank you.
18 Please proceed, Mr. Kuzmanovic.
19 MR. KUZMANOVIC:
20 Q. I'd like to know the basis for that last statement. What's the
21 basis for the statement that United States pressure caused Croatia to
22 implement operation return?
23 JUDGE ORIE: Was a major factor Mr. Galbraith said.
24 MR. KUZMANOVIC:
25 Q. This was a parliamentary decision, was it not?
Page 5121
1 A. The -- the United States put enormous pressure on Croatia
2 starting in August 1995, that it had to have a policy in which it
3 permitted the return of all people who were eligible for Croatian
4 citizenship, and meaning in particular Serbs.
5 We did this in the form of public statements by US officials,
6 myself, the secretary of state, the State Department, the press
7 spokesman, I believe that we will find this in statements of President
8 Clinton
9 certain kinds of aid programmes on this issue. We threatened to cancel
10 the licence for the MPRI contract. We reduced our high-level contacts
11 with Tudjman. We began to isolate him. And all of these things were
12 things that the Croatian government did not want to see happen.
13 And in direct response to our diplomatic initiatives during my
14 time Croatia
15 extended the 30-day deadline to 90 days. In response to demands that I
16 presented on behalf of the US
17 meeting with Ambassador Bill Richardson and myself in Brioni, I think in
18 1996, President Tudjman issued a statement that we worked out with him,
19 that we -- I would almost say metaphorically twisted his arm to make --
20 which is that Croatia
21 This issue of international and US pressure became so great that
22 in the 2000 election campaign, after Tudjman died, the candidates
23 competed as to who would do the most to facilitate the return of Serbs
24 because they understood that this was a precondition for Croatia's
25 entry -- for Croatia
Page 5122
1 Union and into NATO.
2 So I think the record is overwhelming that it was in fact US and
3 European pressure that caused a change in policy from what it was in
4 August of 1995 to the initiation of this programme on return, and -- and
5 to a much more liberal policy after the election of President Mesic in
6 2000 and the election of a parliament controlled by the opposition in
7 2000.
8 Q. Could we please pull up 3D00-1212.
9 Now, Mr. Ambassador, you're familiar with the European Court of
10 Human Rights?
11 A. Yes, I am.
12 Q. This is an October 24 2006
13 Human Rights, and it specifically interprets the takeover act which was
14 the act initially which set a proposed deadline of 30 days which was
15 extended to 90 days and which was abolished later in subsequent
16 legislation.
17 If we go to page 3 of this decision, under Section B this case
18 discusses specifically the takeover act, and if we could go full page on
19 the English version, please. Page 3, Section B. Actually, page 3 of the
20 decision, I don't know if it's page three of the document but page 3 of
21 the decision. We're on page 4 of the decision.
22 Now, we need to go -- there we go. Thank you.
23 Highlight the Section B below, please. All right.
24 You were critical of the -- what's called the takeover act,
25 Ambassador Galbraith, and in this case it describes the takeover act as
Page 5123
1 providing the property situated in the previously occupied territories
2 and belonging to persons who had left Croatia should be in the possession
3 and under the control of the state, meaning the state of Croatia, and
4 that act also provided and allowed for persons who were displaced from
5 other areas to use those abandoned properties for lack of a better term,
6 during the absence of the owners of those properties. And if those
7 owners wanted the properties back, they would have filed a request for
8 repossession with the competent local authority.
9 On the second page -- or page 4, if we go to page 4, this act
10 also provided that "the ministry shall compensate the damage suffered by
11 the owner who has submitted a request for repossession of his property
12 prior to 30 October 2002
13 by that date."
14 Now, the complaint in this case claimed that this takeover act
15 and its amendments were "aimed at preventing people of Serbian origin
16 from returning to their homes in Croatia."
17 If we go to page 6 of this decision, second paragraph, it says:
18 "As to the conduct of the administrative authorities in ensuring the
19 repossession of the house in question to the applicant, the Court
20 observes, firstly, that the state," meaning Croatia, "had a legitimate
21 interest in housing displaced persons in the property left behind by
22 persons who left Croatia
23 allows such persons to remain in the occupied property before they have
24 been provided with adequate housing, is not in itself in contradictions
25 with the guarantees contained in Article 1 of Protocol 1 ..."
Page 5124
1 In -- two paragraphs later there is a discussion?
2 THE WITNESS: Your Honour, can I read the rest it?
3 JUDGE ORIE: Mr. Kuzmanovic, you stopped reading. It says:
4 "Providing that --
5 MR. KUZMANOVIC: "Providing that it ensures sufficient safeguards
6 for the protection of applicants's property rights. In this respect it
7 is crucial to note that the applicant has never instituted any
8 proceedings for compensation in respect of the use of his house by
9 occupants placed there by the state authorities."
10 And there is a discussion two paragraphs later about how the
11 proceedings in Croatia
12 circumstances.
13 And then -- on the next page, the court ends up dismissing the
14 claim because the applicant didn't seek the enforcement order to be
15 carried out, didn't seek compensation, and that the national judicial
16 authorities did not show that there was any issue to be considered by the
17 Court as a violation of the protocol.
18 Now, this is just one of the cases involved in interpreting the
19 takeover act.
20 Now are you critical of the takeover act but at least in this
21 case the European Court of human rights does not grant any sort of
22 judgement or give any sort of remedy to the applicant for a violation,
23 does it?
24 A. First, before I would wish to comment on this, naturally I would
25 wanted to read the entire case and the entire decision. But I can say in
Page 5125
1 superficially looking at this document, a few points.
2 First, it refers to the takeover act and the amendments made in
3 2002. I have no idea what those amendments are or how they affected it.
4 Second, this concerned proceedings that were initiated, as best I can
5 tell, again, from the very superficial chance I have had a chance to look
6 at this, proceedings initiated in 2003. I have already testified that
7 after Tudjman died and after Mesic became president and after Racan
8 became prime minister that Croatia
9 And so I can completely understand that the European court might find
10 proceedings that were undertaken in 2003 at a time when there was a
11 different government and a different attitude, did not violate the
12 relevant human rights statutes.
13 What I was testifying to was the takeover act and actions as
14 applied in 1995. And at that time the plan, Tudjman's plan, was to
15 confiscate property after 30 days unless people returned and he did
16 everything possible to make it physically impossible for people to
17 return.
18 Furthermore in that period, when some people did return and did
19 try to recover their property, the court proceedings and procedures were
20 structured -- and local authorities were structured in a way and acted in
21 a way that made it impossible for people to return to recover their
22 property.
23 And so it was in that period, 1995, 1996, 1997, the laws were not
24 administered -- there was no justice there was effectively -- it was very
25 difficult, if not impossible for people to recover their property and in
Page 5126
1 numerous trips I made to the Krajina region I talked to people who could
2 not get their property back.
3 Q. Let's look at --
4 MR. KUZMANOVIC: Your Honour, if I haven't done so I would like
5 to move to tender that document.
6 JUDGE ORIE: Mr. Tieger.
7 MR. TIEGER: No objection, Your Honour.
8 JUDGE ORIE: However, Mr. Kuzmanovic, usually decisions by courts
9 are not introduced into evidence. I have no problem with it, but if all
10 the case law will be tendered as evidence this is public decision by a
11 court.
12 MR. KUZMANOVIC: Certainly. I understand that, Your Honour.
13 A. I have a couple --
14 JUDGE ORIE: But I do not, if you think it assists us, of having
15 it in evidence rather than to, as we usually do, just to consult the case
16 law. Our attention has been drawn to it and it saves half a wood, if we
17 would refrain from that, so I ask you whether you still persist.
18 MR. KUZMANOVIC: Well, Your Honour, what I will do is I'll refer
19 to the cases so the court will know and I won't need to tender them if I
20 refer to the specific cases involved because I have a couple of other
21 cases as well.
22 JUDGE ORIE: Yes, if you -- then please proceed and -- yes.
23 MR. KUZMANOVIC:
24 Q. Before can he get on to the next case, Mr. Galbraith, I'd like
25 the registrar to pull up 65 ter 00956.
Page 5127
1 JUDGE ORIE: Perhaps already for the record this is a decision of
2 the European Court on Human Rights, first section, application number
3 35670-03 the case of Ceratlic [phoen] against Croatia dated the 24th
4 October 2006.
5 Please proceed.
6 MR. KUZMANOVIC: Thank you, Your Honour.
7 Q. This is the decree that you were critical of, which was
8 promulgated on the 31st of August, 1995. It is a decree on the temporary
9 takeover on administration of certain properties.
10 Article 10, which is on page 4, provides for the 30-day time
11 period that you are critical of.
12 I'd like to you take a moment and read this document and please
13 tell me where in this document you find the words "confiscation" or
14 "stripping persons of Serb nationality of their citizenship," and feel
15 free to take your time to take a look.
16 JUDGE ORIE: Could the parties agree on whether these words
17 appear in this document or not. I mean, apart from that I would be
18 highly surprised to find such language at all in such kind of decisions,
19 but it's --
20 MR. KUZMANOVIC:
21 Q. Well, Mr. Galbraith --
22 JUDGE ORIE: Should we really ask Mr. Galbraith to read this
23 whole document to find out the words, as you just explained, and do not
24 appear in this document, because that's what you're inviting him to do.
25 MR. KUZMANOVIC:
Page 5128
1 Q. Well, you would agree with me, Mr. Galbraith, that the words
2 confiscation of property and stripping persons of Serbian nationality of
3 citizenship are not contained in this decree, are they?
4 A. If you want me to read the decree you will have to provided me
5 the entire decree and I will read it and tell you whether those words
6 appear or not, but I'm not going to agree or disagree if I haven't read
7 it.
8 MR. KUZMANOVIC: If the Prosecutor is willing to stipulate to
9 that we'll stipulate, otherwise we'll have Mr. Galbraith read the
10 document. It is a little more than four pages long.
11 MR. TIEGER: Your Honour, unfortunately I'm not in a position to
12 do anything more than the court in this instance; and that is to say, I
13 would also be surprised if that precise language appeared in there, but I
14 wouldn't be candid if I suggested that I could say with certainty that --
15 none of those words appear.
16 MR. KUZMANOVIC: Well, the testimony was that Mr. Galbraith said
17 this decree was the -- provides for the confiscation of Serbian property.
18 JUDGE ORIE: Yes, but that's a different matter, Mr. Kuzmanovic,
19 isn't it. Whether that same words appear in the document, that's totally
20 different question. I mean, when you summarize the gist of a document
21 you don't necessarily use the exactly same words as you find in the
22 document. I mean, this is a useless exercise. I take it of course if
23 you insist, I will read all the four pages and then see whether these
24 words appear. Again, I would be highly surprised.
25 Let's go to the core of what the evidence is. If there are
Page 5129
1 certain portions of this document where you say, No. You see that that
2 is not what the document says, then please do so. But let's not enter
3 into a semantic discussion.
4 Please proceed. Again, I do not oppose at all against looking at
5 this document, but let's do it by such questions that assist the Chamber
6 and that's not whether exactly these words appear and that was your
7 question.
8 Please proceed.
9 MR. KUZMANOVIC: Well the statement was that the government
10 passed a decree that provided for the confiscation.
11 JUDGE ORIE: Mr. Kuzmanovic, of course, I explained it to you, if
12 you didn't get it, then just perhaps follow my guidance that could you go
13 to what really is the issue at stake.
14 Please proceed.
15 MR. KUZMANOVIC:
16 Q. Do you know what the discussion of the Croatian parliament was in
17 relation to this decree, Mr. Galbraith?
18 A. I don't now recall what the discussion was.
19 Q. If you don't know what the law is, what is the basis that you
20 have for making the claim that it confiscates property?
21 A. Let me restate this. The effect of this decree was to confiscate
22 property that -- and of Croatian actions was to confiscate property of
23 people who did not return in 30 days and then it would be settled, the
24 plan was that this would then be settled as part of the overall
25 settlement of claims between Croatia
Page 5130
1 these Croatian citizens who, in Tudjman's words were optansi, had opted
2 out the Croatia
3 settled as part of an overall settlement which, in effect, would give
4 them nothing.
5 Our view was that what Croatia
6 the property of Serbs who had left and that Croatia was making it
7 impossible for those people to return to claim their property by having a
8 short deadline. We didn't think any deadline would apply or should
9 apply.
10 Q. And what is what ended up happening --
11 A. Because of our pressure, yes.
12 Q. That's what ended up happening in early 1996 was that there ended
13 up being no deadline. Correct?
14 A. Because of United States pressure, yes, that was the end result.
15 I consider that a success of our diplomacy.
16 Q. Well, I didn't ask you whether it was because of the United
17 States pressure, did I?
18 A. I informed you that it was.
19 Q. The amendment, first amendment in September of 1995, 65 ter 3497,
20 extended that deadline which was a decree, I'll rephrase the question.
21 The law which was passed in September of 1995, which was 65 ter
22 3497, was the parliament's law. Correct?
23 A. The -- yes, that's how laws are passed in Croatia.
24 Q. And the parliament opted for a deadline different from what the
25 government decree was. Correct?
Page 5131
1 A. Well, Tudjman's party controlled the parliament. It was a pliant
2 institution of Tudjman. So the change in date was a change that the
3 Tudjman government made and that the parliament enacted.
4 Q. Well, Article 11 of the document, 65 ter 3497, provides the
5 90-day extension. Correct?
6 A. I don't know that. I mean, I would have to see the document.
7 MR. KUZMANOVIC: If we go to Article 11, please.
8 Q. You can see that in the second sentence it provides for the 90
9 days. "From the date of the entering of this law into force."
10 A. Well, let me please read this.
11 Can we see Article 5?
12 Q. Sure.
13 Article five provides for the temporary possession for displaced
14 persons and refugees in those abandoned properties. And those people
15 would eventually, the people meaning the owners, would eventually have a
16 right to have those people evicted when they came back to claim the
17 properties.
18 A. In any event, it would appear, although I would have to read the
19 whole document, but I will accept the premise of your question, that
20 the -- the Article 11 does change the date from 30 days to 90 days.
21 MR. KUZMANOVIC: I would like to tender 65 ter 00956 and 03497.
22 MR. TIEGER: No objection, Your Honour.
23 JUDGE ORIE: Mr. Registrar.
24 THE REGISTRAR: Your Honours, 65 ter 00956 becomes Exhibit D421.
25 65 ter --
Page 5132
1 JUDGE ORIE: Yes, I'm sorry, please proceed.
2 THE REGISTRAR: And 65 ter 03497 become Exhibit D422.
3 JUDGE ORIE: D421 and D422 are admitted into evidence.
4 MR. KUZMANOVIC: Thank you.
5 Mr. Registrar, please pull up 65 ter 00781.
6 Q. If you will take a look, this is an amendment in January of 1996,
7 to Article 11, which puts it in line with the agreement on normalisation
8 of relations between Croatia
9 eliminates any deadline within this particular law.
10 A. I just want to make clear that this does not put it in line with
11 the agreement of normalisation because this is six months before the
12 agreement on normalisation.
13 Q. It says: "It will be regulated." Meaning that -- in the future.
14 A. Well ... I can't see how it could be regulated by an agreement
15 that doesn't yet exist. Perhaps regulated by a agreement.
16 Q. Well, nonetheless, 65 ter 3059 --
17 MR. KUZMANOVIC: If could you pull that up, please.
18 Q. This act of parliament rescinds the law on temporary confiscation
19 and control, does it not?
20 A. Well, that's what the title says.
21 Q. Did you know that there was a decision -- before I get into
22 that --
23 MR. KUZMANOVIC: Your Honour, I would like to tender 65 ter 00781
24 and 3059.
25 JUDGE ORIE: Mr. Tieger.
Page 5133
1 MR. TIEGER: No objection, Your Honour.
2 JUDGE ORIE: Mr. Registrar.
3 THE REGISTRAR: Your Honour, 65 ter 00781 becomes Exhibit D423
4 and 65 ter 03059 becomes Exhibit number D424.
5 JUDGE ORIE: D423 and D424 are admitted into evidence.
6 Please proceed, Mr. Kuzmanovic.
7 MR. KUZMANOVIC: Thank you, Your Honour.
8 Q. Were you aware of a constitutional court decision in September of
9 1997, a Croatian constitutional court decision, in which it upheld the
10 takeover law but eliminated the deadline and added a compensation aspect
11 to the law?
12 A. Again, I'm sure I was aware of the decision in 1997. In 2008 my
13 memory of it is a little vague.
14 MR. KUZMANOVIC: Well, could you please pull up 3D00-1203. Just
15 for reference I think it should be 3D00-1203 I think -- thank you.
16 Q. Now, I have only taken out excerpts in the translation of the
17 entire document, Mr. Galbraith. But you can see there's a discussion of
18 Article 11 in the second paragraph -- fourth paragraph which would be
19 page 6 of the original. And that the court deems portions of the law
20 unconstitutional. And if you go to the second page of the translation,
21 if you're still reading just let me know and I will let you read through.
22 A. I just read that paragraph. Did you want me to read the whole
23 page?
24 Q. Only if you need to, otherwise I'll direct your attention to the
25 second page. I don't want to prevent you from reading anything?
Page 5134
1 JUDGE ORIE: The problem, Mr. Kuzmanovic, read it if you need to
2 read it is a rather confusing instruction.
3 MR. KUZMANOVIC: I'm sure he doesn't want to read it and I
4 probably wouldn't want to read it either.
5 JUDGE ORIE: Please proceed.
6 MR. KUZMANOVIC: We'll go to the second page of the document.
7 Q. Again, it discusses the fact that Article 11, subsection 1 of the
8 disputed laws determines that the question of returning into possession
9 and usage of property will be regulated by the agreement on normalisation
10 of relations between Croatia
11 Is it your recollection there was no such agreement in 1997, at
12 this time?
13 A. No. The -- I previously testified that in January of 1996 there
14 wasn't such agreement but we've already looked at a document which I
15 believe was from the summer of 1996 on the normalization of relations.
16 I'd like to make a point, though, about this, which is that our
17 view was that the right of Croatian citizens to their property in --
18 was -- was and could in no way be regulated by an agreement between
19 Croatia
20 the jurisdiction of Yugoslavia
21 excuse that the Croatian authorities used with us, but in our view the
22 rights of these people should have fallen strictly within the rubric of
23 the Croatian constitution and European human rights standards.
24 Q. Well, you've got the decision with respect to no deadline,
25 correct?
Page 5135
1 A. Well, the no deadline came from January of 1996, yes.
2 Q. Right. And you've got an extension in this particular
3 constitutional court decision which basically says you can't, as we say
4 in American parlance, there is no taking without just compensation,
5 meaning that they provide for a mechanism to be reimbursed for their
6 property in this constitutional court decision, does it not?
7 A. The issue on -- on compensation, what we felt that people should
8 have the right to recover their property and if the property had been
9 damaged, then have the same right to compensation that other people had,
10 particularly Croats, had to get assistance or compensation for a property
11 that might be damaged.
12 We did not believe that compensation was an appropriate response
13 in a case where the property had been taken and given to somebody else.
14 And, incidentally, it wasn't just a displaced people, that is, people who
15 had been displaced from the fighting in 1991 who had been given this
16 property. Tudjman was inviting Croats from the diaspora. He was hoping
17 they would come from Australia
18 real effort to change the population of the Krajina, that had nothing to
19 do with housing displaced people.
20 And the idea that people would be paid for property because it
21 had been taken to give to somebody else we thought that was unacceptable
22 and a violation of human rights.
23 Q. I think the decision doesn't state that whoever temporarily
24 occupied the property would be able to stay there and that they would
25 just pay off the owner as a result. The law contemplated, did it not, at
Page 5136
1 least as it is written, that people who were temporarily occupying those
2 properties would be potentially evicted, the people who wanted their
3 properties back would get them back, and if there was damage to the
4 property or if there was property that was being used by that particular
5 temporary occupant the owner should be compensated for it.
6 Do you know that? I don't want to try and trick you.
7 A. Well, you know, I would have to read through all these documents.
8 Again, the scheme that, really, have I been focussed on, was the initial
9 scheme, which was to confiscate the property that belonged to the optansi
10 [phoen] and after 30 days and extend it to 90 days, and that would be the
11 end of the story with those people compensated as part of this bilateral
12 agreement between Croatia
13 impediments were made less severe and eliminated.
14 MR. KUZMANOVIC: Can we have 3D00-1223 tendered, please.
15 JUDGE ORIE: Mr. Tieger.
16 MR. TIEGER: No objection.
17 JUDGE ORIE: Mr. Registrar.
18 THE REGISTRAR: Your Honours, this is becomes Exhibit D425.
19 JUDGE ORIE: D425 is admitted into evidence.
20 MR. KUZMANOVIC:
21 Q. Now the issue of refugees, for example, of placing refugees in
22 abandoned properties, Croatia
23 August of 1995, a significant refugee crisis, was it not? Even after the
24 Serbs of the Krajina had left, there were Croats coming in from Banja
25 Luka and in -- from other areas that were being pushed out as a result of
Page 5137
1 the ongoing fighting, correct?
2 A. There were some additional refugees, but by and large the Croat
3 refugees' problem was one that had taken place earlier. Obviously in
4 Croatia
5 MR. KUZMANOVIC: Can we please pull up 1D -- that's 1D33-0105.
6 Q. And before we get into the document, Ambassador, while it's
7 coming up, would you agree with me that post-Operation Storm roughly
8 about 80 per cent of the people who may have owned property in Sectors
9 North and South would have fled and abandoned their property?
10 A. Well, I mean, in some sense the figure would have been much
11 higher if you included Croats who been expelled in 1991, but because, as
12 you know, many of the people who owned property in Sectors North and
13 South were Croat, but if you want to talk about just the Serb --
14 Serb-owned property, 80 per cent or maybe a higher figure. I don't know.
15 Q. Nonetheless it was a substantial number of people?
16 A. Oh very substantial. 80 per cent I think would be low.
17 Q. This document is a transcript of a government of Croatia meeting
18 of the 23rd of August which discusses this decree and eventual law, and
19 I'd like to direct your attention to -- my pages are not numbered,
20 unfortunately, so let me count them off from the front page.
21 It's page 7 of the English version, which includes the cover
22 page. That's it.
23 And this is a discussion, and I'll refer you to the centre of the
24 document, in the -- the long paragraph that starts: "I think Mr. Prime
25 minister..."
Page 5138
1 If we could go about a third of the way down, the sentence on the
2 right begins: "One of the ..."
3 It is it blocked off on the screen. There you go.
4 Can we enlarge that, please, so it can be readable. Thank you.
5 We'll start, if can enlarge this section, there we go.
6 The discussion is -- is about the temporary accommodation of
7 returns and it says: "One of the important and most important tasks
8 right now is the temporary accommodation of the returnees regardless of
9 whether they are our returnees or the displaced persons from our
10 neighbour country, Bosnia and Herzegovina. I believe that you discussed
11 this matter at the meeting of the inner circle of the cabinet and that
12 you have come to the agreement that it was a matter of the law on the
13 temporary use of abandoned property.
14 "I think that if we cannot wait for the procedure, which we
15 shouldn't, we should adopt a decree today, in order to provide for
16 quality activities and make it possible for the personnel to take care of
17 the people, to establish who will be coming where, how they will be
18 coming, so we can avoid an even greater devastation than we experienced
19 at the very beginning."
20 And I will skip the next sentence.
21 "From all these conclusions it is evident that the most
22 important thing is to maximally coordinate the civilian authorities, the
23 military, and the police in securing persons and property and in this
24 respect the county prefects shall have the obligation to cooperate with
25 the Ministry of Defence and the Ministry of Interior as regards the
Page 5139
1 establishment of joint control in these areas, including any passing
2 check-points."
3 And if we go further into the document, and I will do it -- it's
4 the fifth-last page, because there is an substantial discussion in
5 between.
6 A. I'm sorry, who is speaking here?
7 Q. Dr. Ivan Majdak who is a minister in the government at the time.
8 A. Sorry, minister for what?
9 Q. He is just identified as Minister Majdak, and I can't tell you
10 off the top of my head what he was a minister of at the particular time.
11 The discussion in the middle paragraph starts with: Speeding up
12 the procedure -- and I'll find it for you who is speaking here, this is
13 the Prime Minister Nikica Valentic speaking her, Mr. Ambassador.
14 "Speeding up the procedure of solving citizen issues, the
15 ministry of administration should speed up the procedure as much as
16 possible, of course the social and health care, as we have arranged, have
17 to be intensified in the areas where people live, regardless of their
18 nationality. Special care has to be provided to the Serb population.
19 There is no need to mention how important this issue is today in both
20 political and humanitarian terms, and it has to be outspoken that all the
21 liberators who are liberating for the third time, those are the worst,
22 they must be prevented. After the army had passed and the war is
23 virtually over, some fake heros emerged who are the most dangerous for
24 Croatia
25 And then it goes on to talk specifically about the decree in the
Page 5140
1 next paragraph.
2 "The decree concerning the property is very significant. We are
3 all aware of all the constitutional restrictions. You are familiar with
4 my position. We will not allow any violence but we have to do something.
5 It is better it find a preliminary solution than to allow anarchy, we
6 will find a constitutional and formal way to find a solution, a
7 preliminary solution, which will lead to us a final solution of that
8 issue. No one can keep it under control. We do not have sufficient army
9 and police to keep under control 30 or 40.000 apartments."
10 Now, it seems to me, and you can disagree if you'd like,
11 Mr. Ambassador, that at least in this session of the government, in
12 discussing the decree concerning property, the gist of this was to
13 protect this property from destruction, irrespective of whose nationality
14 that property was.
15 Would you agree with that?
16 A. It's -- it's hard for me to interpret the document without seeing
17 the full -- the full document and the discussion. So I mean -- no, you
18 have read what you have read and it say what is it says.
19 Q. Well, your contention is that this decree is a way to try to
20 strip -- confiscate Serbian property and deprive Serbian people of
21 Croatian citizenship of their citizenship.
22 A. My contention is that President Tudjman and his close circle did
23 not want the Serbs from the Krajina to return. He viewed them as
24 strategic threat, a cancer on Croatia
25 confiscation of property was part of a strategy that was aimed at
Page 5141
1 preventing the return of the Serbs, and I've already testified to the
2 other elements of it.
3 Q. Well, this is his prime minister speaking in this particular
4 session, is it not? Nikica Valentic?
5 A. Yes.
6 Q. He would be considered someone in the inner circle, would he not?
7 A. Actually, not necessarily. He would have in a formal sense been
8 a part of the inner circle, but he would not necessarily have been one of
9 Tudjman's intimate advisors; for example, Mate Granic who is also clearly
10 in the inner circle also did not share Tudjman's view on how this problem
11 should be handled. And Valentic may not either.
12 MR. KUZMANOVIC: Your Honour, I would like to tender that
13 document, please.
14 JUDGE ORIE: Mr. Tieger.
15 MR. TIEGER: No objection, Your Honour.
16 JUDGE ORIE: Mr. Registrar.
17 THE REGISTRAR: As Exhibit D427 Your Honours.
18 JUDGE ORIE: Thank you, Mr. Registrar. We are coming close to a
19 moment where we would or -- no, I'm.
20 MR. KUZMANOVIC: Normally about 12.30, wouldn't we.
21 JUDGE ORIE: No, we were -- we have still some time to go. I'm
22 just a bit confused by not following our usual schedule.
23 MR. KUZMANOVIC: I'm sorry, Your Honour?
24 JUDGE ORIE: No, I'm just a bit confused by not following our
25 usual time schedule in the morning.
Page 5142
1 MR. KUZMANOVIC: Okay. I will continue.
2 THE REGISTRAR: Sorry for the interruption, Your Honours,
3 document 1D33-0105 is Exhibit D426, not D427.
4 JUDGE ORIE: Then it is D426 which is admitted into evidence.
5 When we are talking about numbers anyhow, Mr. Kuzmanovic, I do
6 understand that you tendered D421 and D423 and that they were admitted
7 into evidence, and although the Chamber is not yet in a position to check
8 that, I am informed that they are among the bar table exhibits.
9 MR. KUZMANOVIC: They are Your Honour. And I hadn't seen that
10 they had received a number yet so ...
11 JUDGE ORIE: Yes. So, therefore, I suggest that the -- we vacate
12 the numbers D421 and D423 because they will be listed in the --MR.
13 KUZMANOVIC: That's fine.
14 JUDGE ORIE: Yes. Then.
15 MR. KEHOE: Your Honour.
16 JUDGE ORIE: Yes, Mr. Kehoe.
17 MR. KEHOE: I know my words are near and dear to the court's
18 heart, but in line 6 of page 54 it has me making that presentation when
19 in fact it's Mr. Kuzmanovic.
20 JUDGE ORIE: Yes. That's -- usually if there is any need to make
21 a correction to the transcript, then of course, sometimes mistakes are
22 made, then if you write it down on a tiny little piece of paper and give
23 it to madam transcriber.
24 MR. KEHOE: Yes, sir.
25 JUDGE ORIE: -- then it will be taken care of. Meanwhile,
Page 5143
1 Mr. Kuzmanovic, I am trying to catch up with your speed.
2 When you earlier dealt with the issue of compensation, I
3 understood this to be compensation for property that someone would have
4 not anymore as a result of the legislation.
5 MR. KUZMANOVIC: Yes or the loss of use as well, Your Honour.
6 JUDGE ORIE: Loss of use as well. Because in one of your
7 questions you said the constitutional court decision, you said which
8 basically says you can't, as you say in American parlance, there's no
9 taking without just compensation, meaning that they provide for a
10 mechanism to be reimbursed for their property in this constitutional
11 court decision, does it not.
12 And then the witness did not exactly focus on the court decision.
13 MR. KUZMANOVIC: I will --
14 JUDGE ORIE: Yes -- no, I'm not concerned about the answer.
15 I'm -- I'd like you to tell us exactly where we find this compensation
16 mechanics concerned view of the loss of property in the document, as you
17 presented it to the witness. Limitations of use, fine, but conversation
18 for the loss of the property.
19 MR. KUZMANOVIC: Of course, now, Your Honour, when you put me
20 under the gun it escapes me. But I will find it.
21 JUDGE ORIE: If you find it during the break and then after the
22 break we'll give you an opportunity to ...
23 MR. KUZMANOVIC: We'll do that. Thank you, Your Honour.
24 JUDGE ORIE: Please proceed.
25 MR. KUZMANOVIC: Can we please call up 3D00-0903.
Page 5144
1 Q. While that is coming up you had asked about Mr. Majdak. He is
2 listed in the minutes, Ambassador, as one of the ministers in the
3 government, just for your knowledge.
4 MR. KUZMANOVIC: And thanks to Mr. Mikulicic, if you look in the
5 translation on 3D -- on D425, which is the constitutional court case, in
6 the partial draft translation, it says, on the lower third: "According
7 to Article 8 subsection 1 and 5 of the disputed law, ownership rights are
8 limited but free of charge."
9 And then the case goes on to discuss the fact that it taken in to
10 consideration the goal of disputed law is not a foot hold for the
11 aforementioned limitation of ownership rights.
12 JUDGE ORIE: My question was specifically about the loss of
13 property. This is about limitation of property rights to be compensated
14 for. Whereas you in your question you suggested that this decision would
15 deal with compensation, including, as I said before, for the loss of
16 property, and I could not find that.
17 MR. KUZMANOVIC: I will find that Your Honour.
18 JUDGE ORIE: Yes.
19 MR. KUZMANOVIC: Okay. We'll go back to the document currently
20 on the screen, Mr. Ambassador.
21 Q. This is the government's explanation, Croatian government's
22 explanation, as to why the law on temporary takeover administration of
23 specific properties is necessary. And, of course, it's a fairly long
24 document and we translated just a portion of that document, but you will
25 see in the very beginning of the document it discusses the fact that
Page 5145
1 many -- Croatian citizens of Serbian nationality left now liberated
2 territory of the Republic of Croatia
3 on occupied territory of Croatia
4 territory of Serbia
5 It discusses the inability, it says specifically understandably
6 with all efforts made the Republic of Croatia
7 efficiently protect such properties and that way protect owners'
8 interests, interests of possible creditors, or the interest of the
9 Republic of Croatia
10 And that dove-tails somewhat with what prime minister Valentic
11 was talking about the previous exhibit.
12 It also discusses the reasoning behind the allowance of other
13 persons who don't own the property to be able to temporarily occupy the
14 property.
15 In the second paragraph -- the third paragraph puts the onus on
16 the Croatian administration to possess the property temporarily and
17 prescribe the owners limits in disposal of the property, meaning the
18 owner in this case, mostly, would be people who had fled which would be
19 Croatian citizenships of Serbian nationality, and would provide
20 conditions, strict conditions under which, according to this law, the
21 owner who left the territory of the Republic of Croatia
22 they can claim back the property to use and possess.
23 So, at least in the formal explanation for the reasoning behind
24 why this law was undertaken, there is no discussion or written intent on
25 depriving Serbian citizens of either their property or their citizenship,
Page 5146
1 is there?
2 A. There is not in the excerpts that you've read to me.
3 Q. Okay.
4 MR. KUZMANOVIC: Your Honour I would like to move 3D00-0903 into
5 evidence.
6 JUDGE ORIE: Mr. Tieger.
7 MR. TIEGER: Your Honour, just two matters. Number one I see
8 a -- I saw earlier a signature. I was just wondering if we can have any
9 indication of what body or to whom this is an explanation.
10 MR. KUZMANOVIC: Sure. This is -- I can provide it because that
11 particular portion was not translated. This is a letter from the prime
12 minister Nikica Valentic, to the Croatian Sabor on the 31st of August of
13 1995, presenting this proposal to the Croatian parliament for its
14 consideration and explaining the reasoning behind the need for this
15 particular law.
16 If you look at the very first page, which is signed by Mr.
17 Mihanovic, this is his presentation to the members of the parliament of
18 the information provided by Mr. Valentic and the proposed law -- actually
19 it should be the proposed decree.
20 You can see the letter from Mr. Mihanovic is dated, and we can
21 see it on the Croatian version on the screen, is dated the 7th of
22 September, and the Prime Minister Valentic's letter is dated the 31st of
23 August.
24 And if you want during the break, counsel, we can --
25 MR. TIEGER: And Your Honour, I take it the -- I don't know what
Page 5147
1 the portions -- or the translated portions of the document are what
2 intended to be tendered. If so we would like an opportunity to review
3 entire document, otherwise if the entire document is going in and we need
4 to review to see what additional portions may need be to translated, kind
5 of amounts to the same thing, but I think the Court understand the caveat
6 under these circumstances.
7 MR. KUZMANOVIC: Your Honour, I have no problem with that. I'd
8 like to tender the whole document for the sake of completeness.
9 Obviously we did not get the whole document translated because we didn't
10 use the whole document.
11 JUDGE ORIE: Then I suggest to the parties that we mark this
12 document for identification, that it is the expectation that it will be
13 replaced by the document or, as a matter of fact, two documents from what
14 I now understand, one being a letter offering the other document to
15 parliament, that it therefore will be replaced by the two documents, and
16 that once the Prosecution has reviewed the document in its entirety, that
17 we will then decide on the admission of the entire document.
18 MR. KUZMANOVIC: Sure. And Your Honour just to be perfectly
19 complete in terms of what the document is: There are two letters, there
20 is the bill, and then will is the explanation behind the need for the --
21 for the decree, I should say.
22 JUDGE ORIE: Yes. And would that include an explanation on the
23 individual provisions of the bill as well or just the general.
24 MR. KUZMANOVIC: Yes. It would be the general -- it is actually
25 explaining the various individual provisions of the bill. The B/C/S
Page 5148
1 version of the document is six pages long in terms of the --
2 JUDGE ORIE: Yes. So it is more or less the explanatory note of
3 a project of legislation with accompanying correspondence.
4 MR. KUZMANOVIC: Yes.
5 JUDGE ORIE: So then we will mainly then, in order to assign a
6 number to the document, have it marked for identification as it is now,
7 but it will be replaced by the complete set of documents introducing this
8 bill to parliament --
9 MR. KUZMANOVIC: Yes, Your Honour.
10 JUDGE ORIE: -- as an explanatory note.
11 MR. KUZMANOVIC: And I think if it would please the court we will
12 endeavour to get the whole things translated so the court can have a full
13 record of --
14 JUDGE ORIE: Yes. We will not admit it into evidence until it is
15 translated.
16 MR. KUZMANOVIC: Okay. Thank you, Your Honour.
17 JUDGE ORIE: Mr. Registrar.
18 THE REGISTRAR: This becomes Exhibit D427, marked for
19 identification.
20 JUDGE ORIE: And it keeps that status for the time being.
21 Mr. Kuzmanovic, it is time for a break.
22 One second, please.
23 [Trial Chamber and registrar confer]
24 JUDGE ORIE: Mr. Kuzmanovic, you used until now 1 hour and 21
25 minutes. I would encourage you that if we resume at 20 minutes past
Page 5149
1 midday
2 cross-examination certainly not later than -- by the end of the session
3 today.
4 MR. KUZMANOVIC: I will do my best to finish today, Your Honour.
5 JUDGE ORIE: Yes. We resume at 20 minutes past 12.00.
6 --- Recess taken at 12.02 p.m.
7 --- On resuming at 12.22 p.m.
8 JUDGE ORIE: Mr. Kuzmanovic.
9 MR. KUZMANOVIC: Thank you, Your Honour.
10 JUDGE ORIE: By the way, just to inform the parties that the
11 words included in your question do not appear in the document, the
12 four-page document, stripping, confiscation, it does not appear. Yes?
13 So it save you perhaps reading -- you may have read them already.
14 MR. MIKULICIC: [Microphone not activated]
15 JUDGE ORIE: Well, adjudicated means that the Chamber decides.
16 Thank you. Please proceed.
17 MR. KUZMANOVIC: Thank you, Your Honour.
18 Q. My lead counsel Goran Mikulicic and Mr. Tieger had a slight
19 discussion regarding the cases, and we thought it might be appropriate
20 for us just to perhaps put them all together. For the benefit of the
21 Court I will go over some of them now and mark them as an exhibit simply
22 because the Court will have them all in one spot then for easy reference?
23 JUDGE ORIE: Again, if you provide the Court with case law and
24 hard copies of it, that's fine. But then of course they do not have to
25 be filed through the registry, et cetera, et cetera. So providing --
Page 5150
1 assisting us in a practical way does not necessarily need to make case
2 law an exhibit because if it -- but of course we would be very happy
3 because otherwise our staff starts printing out and everything and so
4 that's --
5 MR. KUZMANOVIC: We'll kill more trees for you, Judge.
6 JUDGE ORIE: Yes.
7 MR. KUZMANOVIC: Thank you.
8 Q. Ambassador Galbraith, I wanted to direct your attention to 65 ter
9 02706.
10 And this is the -- the parliament law, Croatian parliament law on
11 the programme for return and care of expelled persons, refugees and
12 displaced persons that we were talking about before, passed in June of
13 1998.
14 Now, this particular law, on page 2 -- actually, we'll start at
15 page 1. I apologise. The very first provision states that Croatia
16 acknowledges the inalienable right of the return of all citizens of
17 Republic of Croatia
18 as refugees.
19 So at least on the face of this document it applies to all
20 citizens, including those citizens of Serbian nationality.
21 Would you agree with me, Mr. Ambassador?
22 A. Yes. And in that sense it is a very dramatic change from
23 Tudjman's view that is correct these were optansi, opted out from
24 Croatia
25 Q. And this is June of 1998 when President Tudjman was still
Page 5151
1 president of Croatia
2 A. It is yes.
3 Q. The third paragraph on the second paragraph or paragraph -- point
4 number 3 on the second page, to be more precise, at the top, it says:
5 "Use of right to return, organised or spontaneous depends exclusively on
6 the will of a person to return."
7 Now I wanted to ask you some questions about that and it sort of
8 relates to reasons why people may have left Croatia, those of Serbian
9 nationality.
10 Now you would agree with me, would you not, that many people, or
11 a substantial group of people, left during Operation Storm simply because
12 they didn't want to live in a Croatian state. That's why the Republika
13 Srpska Krajina was created, because they didn't want to live in a
14 Croatia
15 A. Certainly there were people in that category, yes.
16 Q. And as a matter of fact, their leadership made it pretty clear
17 that they didn't want to live in a Republic of Croatia
18 A. With the exception of Milan Babic, I think the answer to that
19 question is yes.
20 Q. The issue pertaining to people who had left, would you agree with
21 me that the people who lived in that part of Croatia before they left,
22 all voted or the majority of them voted in a referendum to form the RSK,
23 and become a separate entity apart from Croatia?
24 A. I think that's correct, yes.
25 Q. And it is pretty safe to say, is it not, that the people who did
Page 5152
1 not want to live in a -- the Republic of Croatia
2 laws there were or whether they would get their property back, they
3 simply didn't want to live in the Republic of Croatia
4 circumstances?
5 A. On the contrary. I think that they cared deeply that they get
6 their property back. Many of them -- I mean this was something that was
7 valuable. Many of them were very poor people, their land and their
8 animals and their homes would have been all they had. And even if they
9 didn't want it live in Croatia
10 so as to be able to sell it.
11 Also, how people felt in 1995 in a time of war was going to be
12 different, and we understood this, from how they might feel in 1998 or
13 years later, and it may that be those people would reconsider and decide
14 that in fact, yes, they wanted to live in Croatia, especially we didn't
15 think that the Tudjman government and the kind of nationalism that it
16 represented was going to last forever. And in fact it didn't last. It
17 disappeared in 2000.
18 Q. As a matter of fact the Tudjman government brought about this act
19 of parliament for the return and care of expelled persons, refugees a
20 displaced persons, did it not, in June 1998?
21 A. Yes. But as I explained it did so very reluctantly, whereas its
22 successors, in 2000, embraced the idea of return.
23 Q. Now, this particular document, the programme for return and care
24 of expelled person, refugees and displaced persons outlined a framework
25 for which people could make claims for their property, if they decided
Page 5153
1 not to come back, did it not?
2 A. You're referring to this 1998 document?
3 Q. Yes.
4 A. Again, this was passed after I left as ambassador to Croatia
5 I really haven't had a chance to study it.
6 Q. Okay. Let's go to page 5. At the bottom, the pages are marked
7 in this English translation.
8 It outlines procedures for return in paragraph 1, regarding
9 persons who hold Croatian documents. And in paragraph 2 it has a
10 procedure for return for person who do not have Croatian documents.
11 There are various categories of persons. If you go on to the next page,
12 regarding homes that are either occupied or homes that are unoccupied and
13 the various categories of person who is are trying to get their property
14 back.
15 There is no distinction in this particular section between
16 nationalities is there?
17 A. I have not had a chance to study this document, and --
18 Q. Fair enough.
19 A. I think you're almost asking me to be an expert witness, which I
20 guess I would be prepared to do given my background, but I would have to
21 study the document and check the translations and talk to people.
22 Q. All right.
23 MR. KUZMANOVIC: Your Honour, I would like to move 65 ter 02706
24 into evidence.
25 JUDGE ORIE: Mr. Tieger.
Page 5154
1 MR. TIEGER: No objection, Your Honour.
2 JUDGE ORIE: Mr. Registrar.
3 THE REGISTRAR: As Exhibit D428.
4 JUDGE ORIE: D428 is admitted into evidence.
5 Please proceed, Mr. Kuzmanovic.
6 MR. KUZMANOVIC: Thank you, Your Honour.
7 Mr. Registrar, please call up 3D00-1337.
8 Q. I have a couple of more of these cases to go through with you,
9 Mr. Ambassador, from the European Court of Human Rights. This particular
10 case is application number 69265/01, for purposes of the record. It is a
11 January 8th, 2004
12 lodged on May 2nd.
13 The second page of that document --
14 MR. KUZMANOVIC: If we could turn to page 2. And if we could
15 focus under Section A.
16 Q. There is a discussion of the facts of the case, and I won't go
17 into too much detail, but at least this facts section briefly outlines
18 the laws that parliament passed up to and including the programme for
19 return. This particular persons home was -- he left his home due to
20 Operation Storm, August of 1995, and someone had occupied his home and he
21 wanted that person evicted. The eviction order was granted by a Croatian
22 court. The person who was living there temporarily refused to leave, and
23 throughout the process, which went on quite a few years, at least three
24 years, he came to the European Court of Human Rights for relief.
25 A. Can I see what happened on the 19th of January?
Page 5155
1 Q. Sure.
2 A. At the bottom of the page.
3 Q. Just let me know when you're done and we'll move on.
4 A. Just so I understand, in 1999 the Housing Commission --
5 Q. Annulled.
6 A. Annulled the decision -- okay. Okay go ahead.
7 Q. It is a little bit confusing.
8 JUDGE ORIE: Before we move to the second page, could we move up
9 right to the top of this page. What is there --
10 MR. KUZMANOVIC: Your Honour, that is my note.
11 JUDGE ORIE: I wondered what was there to be checked.
12 MR. KUZMANOVIC: That is my note, Your Honour, that can be
13 ignored.
14 JUDGE ORIE: Yes.
15 MR. KUZMANOVIC: It is not part of the case.
16 JUDGE ORIE: That's fine. Please proceed.
17 MR. KUZMANOVIC:
18 Q. The procedural history continues on the third page. And through
19 more attempts by the person who was temporarily occupying the house who
20 didn't want to leave and was using all means necessary not to leave,
21 we'll move on to the fifth page where the applicant complained that his
22 right to peaceful enjoyment of possession meaning his home in Petrinja
23 was violated and so far he had been prevented from repossessing his house
24 and that the particular -- that he complained that he was discriminated
25 against on the basis of his Serb origin.
Page 5156
1 And if we go to page 6 in the middle of the page where it says:
2 "In 1998 parliament adopted," meaning the Croatian parliament, "a
3 programme for return of refugees and displaced persons which guaranteed
4 the return of their possessions to persons who had left Croatia
5 However, temporary occupiers were to be placed at a state-owned
6 accommodation."
7 And that "the government argued this programme was adopted in
8 order to protect public interest; namely, to secure repossession of
9 property to persons who had left Croatia
10 given for temporary use to other persons but at the same time to protect
11 refugees who were placed in houses owned by the previous group of
12 persons."
13 Now, if we go to the last page, page 7, this particular applicant
14 in section 2 complained that he was discriminated against on the basis of
15 his Serbian origin alleging that no single eviction order this had been
16 carried out in the Petrinja area where the owner of the house was a
17 person of Serbian origin.
18 In the paragraph following the indented quote, the government of
19 Croatia
20 that the court noted a little further down, meaning the Court of European
21 -- the European Court of Human Rights noted that "the programme for
22 return equally applies all person who return to Croatia irrespective of
23 their ethnic origin and that there is no indication that the applicant
24 was discriminated against in any respect."
25 Now, the programme of return in 1998 was the start, was it not,
Page 5157
1 of a more -- maybe not necessarily efficient but at least a more
2 procedural manner of trying to get people back in Croatia, was it not.
3 A. The start -- the start of a more procedural manner?
4 Q. It is a confusing question. This case, specifically the Kostic
5 case, notes that this particular programme is not discriminatory in its
6 application, meaning that applies equally to all citizens meaning that
7 this person in this particular case who was of Serb origin was not
8 discriminated against.
9 Would you agree me that this 1998 law better streamlined and gave
10 Serbia
11 better opportunity to return to Croatia
12 A. I think I will agree with you that it gave Serb -- Croatian
13 citizens of Serb nationality better opportunities to return to Croatia
14 and that is very much consistent with my testimony, that things got
15 better.
16 Without looking at the law and -- and going through it and going
17 through these cases, I can't -- I don't feel I can testify as to whether
18 it is streamlined procedures or did other things, but I would say that
19 it -- it did make things better.
20 Q. Okay.
21 MR. KUZMANOVIC: Your Honour, I have and I will I guess just
22 announce 3D numbers of the remaining cases that I have here, and I will
23 not go through the remaining cases with Mr. Galbraith, that discuss this
24 issue, and if the Court would rather have me submit it in written form I
25 will do that, but there are four other cases that I have here that
Page 5158
1 specifically relate to this issue.
2 JUDGE ORIE: I think as a matter of fact it is -- this is
3 published case law.
4 MR. KUZMANOVIC: Yes, Your Honour.
5 JUDGE ORIE: If you provide some hard copies, not too many, just
6 enough for the Judges --
7 MR. KUZMANOVIC: For the Chamber.
8 JUDGE ORIE: For the Chamber and perhaps for Mr. Tieger one as
9 well, please.
10 MR. KUZMANOVIC: I will. I will do so.
11 They are in our exhibit Ringtail reports so Mr. Tieger should
12 have them already.
13 JUDGE ORIE: Yes, Mr. Tieger. Then one thing you said that the
14 court referred to statistics, were you referring to where the document
15 says that where the applicant said that there was no case known that the
16 government of Croatia
17 that is four years, that there had been 15 such proceedings and that in
18 eight of these proceedings the owners had repossessed their houses.
19 Is that the statistics?
20 MR. KUZMANOVIC: Yes, Your Honour.
21 JUDGE ORIE: Yes. I always learned that with statistics you need
22 at least a certain number in order to make it available for statistical
23 analysis.
24 Mr. Tieger.
25 MR. TIEGER: Just a small point, but just hopefully to clear the
Page 5159
1 record slightly. In a predicate to the question Mr. Kuzmanovic noted
2 that the case noted that the particular programme is not discriminatory
3 in its application. Again, it's a small point, I think the case as read
4 out indicated that the programme applies equally to everyone. I take
5 that to mean the difference between the document on its face and the
6 manner in which it was --
7 JUDGE ORIE: Of course it's clear, it came into my mind as well
8 that if you say in its application it could mean the way in which the
9 regulation is formulated. That means that it applies to everyone.
10 That's a kind of application, of course. Another matter is whether in
11 its practical application whether there is any discrimination. Of course
12 the European Court on Human Rights here limited itself to looking at the
13 document.
14 MR. KUZMANOVIC: And at that particular case.
15 JUDGE ORIE: Yes. And at this particular case and denied the
16 objection that no case against a Serb was successful for that Serb
17 because there were eight in four years out of 15.
18 MR. KUZMANOVIC: Right. And I think, Your Honour, maybe I should
19 have just read the section that I highlighted here at the end of the
20 decision where it says: "The Court notes that the programme for return
21 equally applies to all persons who return to Croatia, irrespective of
22 their ethnic origin and that there is no indication that the applicant
23 was discriminated in any respect."
24 JUDGE ORIE: Yes, we've seen that --
25 MR. KUZMANOVIC: Just for the sake of clarity in the record, Your
Page 5160
1 Honour.
2 JUDGE ORIE: No, we don't have to admit it. We get hard copies.
3 Please proceed.
4 MR. KUZMANOVIC: Thank you, Your Honour.
5 Q. Mr. Galbraith, I'd like to have the registrar please call up
6 3D00-1310.
7 Before we get to this document, I just wanted to ask you a
8 question, Ambassador, I'm sorry, about the initial decree that you were
9 critical of, the 31st of August of 1995, which had -- it was a 30-day
10 time-limit which was eventually amended and changed.
11 The constitutional court that decided some significant issues
12 relating to the constitutionality of portions of this law, what, in your
13 opinion based on your observations of the Croatian government, was this
14 constitutional court decision the result, do you think, of American
15 pressure or was it the result of Tudjman's influence, if you can answer
16 that.
17 A. You only give me two choices.
18 Q. I get to ask the questions here, so ...
19 A. It might have been neither.
20 Q. Okay.
21 A. Well I -- I can't speak to what was motivating the constitutional
22 court.
23 Q. I guess maybe we could take them one at a time.
24 American pressure didn't influence the constitutional court's
25 decision in that regard, is that pretty clear?
Page 5161
1 A. No, that's not clear.
2 Q. Was there any American pressure on the constitutional court of
3 Croatia
4 A. There was very significant American pressure on Croatia
5 pressure was covered in the newspapers. It was known in government
6 circles. And whether it influenced the thinking of the court, I can't
7 say. What I can say is that the way -- what we stressed and we were
8 joined with our European allies, we stressed fundamental principles of
9 human rights as well as treaty obligations that Croatia had, and courts
10 often do think about human rights treaties, they do think about human
11 rights standards, so I can't say whether that influenced the court
12 decision or not.
13 Q. Do you know whether or not President Tudjman had any influence
14 one way or the other on the Croatian constitutional court, from your
15 recollection?
16 A. Well, my recollection, and I -- I may not be entirely correct on
17 this --
18 Q. I don't want to you guess but ...
19 A. But the court was a institution, as I recall, that was set up as
20 part of the constitutional structure of Croatia which was controlled by
21 Tudjman's party, so I would guess that he had probably had some influence
22 on who became judges and their views.
23 I don't think we thought of the Croatian judiciary as a
24 completely independent institution.
25 Q. Now, compared to the -- the United States did stress makes the
Page 5162
1 same kind of pressures and arguments -- maybe not necessarily you, but
2 the government on Serbia
3 frequent basis in that time-frame, did it not?
4 A. Yes.
5 Q. What kind of success rate did you have with them compared to what
6 you had with Croatia
7 A. We had very substantially more influence on Croatia
8 on Serbia
9 dependant on the United States for the events that led to the recovery of
10 the occupied territory, the -- the Erdut Agreement, the end of the
11 Muslim-Croat war, because Tudjman and the Croatian people saw that their
12 future was linked to the west, and they wanted the support of the United
13 States for Croatia
14 European Union. And Serbia
15 The United States had imposed sanctions on Serbia along with the
16 rest of the United Nations. It had used air power against Serbia -- or
17 Bosnian-Serb forces in 1994 and 1995, and then, of course, you had the
18 build up to the Kosovo war in 1999.
19 So very different situation.
20 Q. Mr. Ambassador, you had said that Croatia had become fairly
21 dependant on the United States in many instances for what had transpired
22 during that time-frame. Would you agree with me also that the United
23 States to some extend had become very dependent on Croatia as well given
24 the fact that Operation Storm led to the relief of Bihac and the
25 continued military operations in Bosnia led to eventually Dayton
Page 5163
1 A. I think that Operation Storm and the subsequent campaign in
2 Bosnia
3 But, no. I would not say that the United States was dependant on
4 Croatia
5 to the United States. Our national survival did not depend on it. We
6 very much wanted to end the war, and we saw that Croatia was the key to
7 ending the war, and this really goes back to 1993 when we began to work
8 to negotiate an end to the Muslim-Croat war to create the Federation. We
9 saw that Croatia
10 and I think it was a success of our diplomacy that we got Croatia and the
11 Bosnian government on the same side, and we got Croatia to set aside some
12 of Tudjman's more nationalist impulses to bring about a positive result.
13 But I do not believe that the United States was dependent on
14 Croatia
15 Q. Well, you would agree with me that the Croatian military was the
16 military that undertook this undertaking, not NATO, not the American
17 military, not the UN, correct?
18 A. Well, NATO began a major bombing campaign on the 30th of August,
19 1995, that --
20 Q. In Bosnia
21 A. Yes. And that's what -- and it was in that period that the
22 Croatian army and the army of Bosnia-Herzegovina made the major military
23 advances.
24 NATO was not the Federation air force. That wasn't the role.
25 The bombing was a response to the Sarajevo
Page 5164
1 had the effect of -- of inflicting great damage on the Bosnian-Serb
2 military and particularly on the command and control, and then there were
3 forces on the ground that were able to take advantage of it.
4 Q. Let's go to the document on the screen, Mr. Ambassador.
5 This document is dated December 2nd of 2006 and it is a
6 subsequent statistical chart or table documenting returns of displaced
7 persons and minorities to the various counties of Croatia, and this
8 document can be read, if you split the middle of document after the total
9 returnees in the centre, the left portion of that document are people
10 that have actually returned. And if you look at the bottom of the
11 document you have various totals, and the second column are returnees
12 from Yugoslavia
13 fourth column are returnees from essentially Sector East, and at least
14 according to this document as of December 2nd, 2006, slightly more than
15 90.000 returnees came back to Croatia
16 Now that would indicate to me, to some extent, that most if not
17 all of those returnees were Serbian returnees would, it not?
18 A. I think that's a likely -- I think that's likely correct, yes.
19 Q. So within -- from the year 2000 to the year 2006, if I recall the
20 number correctly, it went from roughly 41.000 returnees to a little over
21 90.000 returnees at least just from Yugoslavia to Croatia
22 A. Yes, that appears to be correct.
23 Q. Now we've got areas divided up specifically by county and you can
24 see that on number 15 on the left is Sibenik Knin, which is part of
25 Sector South, over 21.000 returnees to that area from Yugoslavia alone by
Page 5165
1 the year 2006, correct?
2 A. My eyes went there right away and, yes, I noticed that figure.
3 Q. On the right portion of the document, Ambassador Galbraith, I
4 guess the total number of returnees, before going to the right portion of
5 the document, where the number 342.701 sits, are returnees both of
6 displaced persons and minorities, which is immediately to the left, the
7 total minority return being 123-some thousand people.
8 When you go to the right side of the document, under people left
9 to return, under these categories, those are people in the process of
10 either planning for or organising a return to Croatia and, again, we have
11 people from the Sibenik-Knin area which has quite a few numbers 1332
12 additional people, and when you total that it comes to another 11.000 or
13 12.000 people who planned to return from either Yugoslavia or Bosnia
14 Croatia
15 Now, this is a fairly good number, is it not, when you look at
16 the number of returns?
17 MR. TIEGER: Sorry.
18 JUDGE ORIE: Mr. Tieger.
19 MR. TIEGER: I'm having trouble between distinguishing between
20 returns and people who plan to return.
21 MR. KEHOE: [Overlapping speakers] ...
22 JUDGE ORIE: Mr. Kuzmanovic, I'm a bit lost, as a matter of fact,
23 not because you're doing something which -- but I'm perhaps just too
24 slow.
25 MR. KUZMANOVIC: No, you're not, Judge.
Page 5166
1 JUDGE ORIE: Now, if you take a bit more time to say this column,
2 that number there, so that I can follow it.
3 MR. KUZMANOVIC: I will.
4 JUDGE ORIE: I have really difficulties in.
5 MR. KUZMANOVIC: I will. We will look at the left hand side of
6 the document first, Your Honour, where if you go to the bottom of the
7 document where the number is 332.701, everything in the columns to the
8 left of that are total returnees in various categories as of
9 December 2nd, 2006
10 And if you look at the total number of returnees, Croatian
11 returnees as well minorities, the total number is almost -- a little over
12 340.000, 342.701.
13 And just so we're clear, Your Honour, the returnees,
14 Mr. Galbraith, from the HP, which is basically Sector East, is it not?
15 Hrvatska Podonarje [phoen] the former Sector East.
16 A. Yes. I mean if you tell me that that's what it is, and what
17 HP -- I mean I understand what the words mean, but if you tell me that
18 that's the former Sector East I will take your word for it.
19 Q. Yes. In that particular there 23.584 persons total who have
20 returned and from the HP into Croatia
21 coming from the HP into Croatia
22 nationality?
23 A. Yeah. I mean that logically would be correct, yes.
24 Q. So if we add up the citizens of primarily of Serb nationality who
25 have come back to Croatia
Page 5167
1 with the column of those who have returned from Yugoslavia, which is
2 roughly a little over 90.000 or almost 91.000 refugees, you've got
3 roughly 110, 111.000, people who have come back by 2006 primarily of Serb
4 ethnicity. Correct? If these numbers are accurate.
5 A. Yes. But wouldn't you also include the returns from Bosnia
6 Q. I would, and I was going to ask but that next. Those would
7 primarily Serbs as well. Correct?
8 A. Given that the government of Croatia would treat Croats as not as
9 minorities and presumably there wouldn't be very many Muslims, I would
10 think that that number would also be included and of course Serb refugees
11 did go to Republika Srpska, part of Bosnia
12 Q. So at least as of 2006 if these numbers are accurate we've got
13 close to 120.000 Serbs that have returned to the Republic of Croatia
14 A. Plus another 10.000 that are -- seem to want to return and are
15 part of the process.
16 Q. Okay.
17 A. Yes, I think that looks right.
18 Q. You are correct, Ambassador.
19 MR. KUZMANOVIC: Your Honour I'd like to move -- tender this
20 document, please.
21 JUDGE ORIE: Mr. Tieger.
22 MR. TIEGER: I don't have any objection, Your Honour, to the
23 document in principle, just I want to check with counsel on the
24 provenance of it.
25 MR. KUZMANOVIC: Sure.
Page 5168
1 JUDGE ORIE: Mr. Registrar, may it be admitted into evidence with
2 a possibility for the Prosecution to invite the Chamber to reconsider its
3 decision.
4 THE REGISTRAR: Your Honour, this becomes Exhibit D429.
5 JUDGE ORIE: D429 is admitted into evidence.
6 MR. KUZMANOVIC: If you wanted to add something go ahead.
7 A. Thank you. I think there is something else that is interesting
8 about this chart, which is if you look at the counties that are in the
9 former sectors north and south, the figures.
10 Q. Sisak?
11 A. Actually, I was look the at Lika Senj.
12 Q. Yes.
13 A. Zadar.
14 Q. Yes.
15 A. Sibenik Knin. Oh, yeah. And what else should I -- oh would --
16 Karlovac would be there, and Sisak would be there. So you could -- if
17 you looked at the minorities there, 32 -- excuse my doing the math here.
18 47.
19 Q. That's why I became a lawyer.
20 A. 57. Well, I get about 81.000 returns out of a population that --
21 of 180.000 that left. That's -- to me, a very encouraging figure.
22 Q. Thank you, Mr. Ambassador.
23 MR. KUZMANOVIC: Your Honour, I'd like to -- or Mr. Registrar
24 please bring up D214.
25 JUDGE ORIE: Before we continue, could I try to understand
Page 5169
1 exactly, because the title doesn't give that much information. Let me
2 just try to understand.
3 The county are the names of the counties to which the persons
4 returned; is that correct?
5 MR. KUZMANOVIC: Yes, Your Honour.
6 JUDGE ORIE: And that you includes, for example, unknown
7 counties? Did any people return to unknown counties? Yes,
8 understandable, but Bosnia-Herzegovina, not many, but I'm just trying to
9 understand what -- looking at the table what it really tells us.
10 Returnees ex-displaced persons.
11 MR. KUZMANOVIC: I think that number, Your Honour, refers to
12 Croatian citizens who were displaced during the course of the war who are
13 returning to those areas.
14 JUDGE ORIE: Yes. Okay. Then I at least understand how you
15 interpret this. And then the minorities return --
16 MR. KUZMANOVIC: Which is essentially three columns.
17 JUDGE ORIE: Yes. So we see from where they came to where they
18 went.
19 MR. KUZMANOVIC: Yes.
20 JUDGE ORIE: And then the total minority is just adding all this.
21 Total returnees adds the ex-displaced persons --
22 MR. KUZMANOVIC: Correct.
23 JUDGE ORIE: -- and then the minority returns, and then people
24 left to return.
25 MR. KUZMANOVIC: I think people who are left who are going to
Page 5170
1 return. That's how I interpret that, Your Honour.
2 JUDGE ORIE: Yes. And I do understand. And that is then claims
3 for returning.
4 MR. KUZMANOVIC: Yes, Your Honour.
5 JUDGE ORIE: Yes. And then we have refugees. What's that
6 category.
7 MR. KUZMANOVIC: Those are refugees, people who are don't have
8 any particular citizenship status, but are simply refugees from a certain
9 area of -- not necessarily Croatia
10 refugees from that part of former Yugoslavia
11 JUDGE ORIE: These are quite considerable numbers so just
12 refugees?
13 MR. KUZMANOVIC: Yes.
14 JUDGE ORIE: Coming from where? Going where?
15 MR. KUZMANOVIC: Kosovo or other places within former Yugoslavia
16 JUDGE ORIE: Yes. Could that also mean refugees, people
17 considered to be refugees who left Croatia.
18 MR. KUZMANOVIC: It could be Your Honour. I think -- I think
19 that could be a category or a -- people included in that category.
20 JUDGE ORIE: Yes. And then we have settlers. Those coming in
21 from where?
22 MR. KUZMANOVIC: From anywhere.
23 JUDGE ORIE: From anywhere. And then the total of persons adds
24 just all the categories is that --
25 MR. KUZMANOVIC: That's correct. All the categories on the right
Page 5171
1 half of that table, Your Honour.
2 JUDGE ORIE: At least now I understand how you interpret this
3 table what it tell us and it's February 2006.
4 THE WITNESS: If I could just add just another observation on the
5 settler category.
6 MR. KUZMANOVIC: Actually, it's December, Your Honour, December
7 2006.
8 JUDGE ORIE: Yes, yes. It's the American way rather than the
9 European way.
10 MR. KUZMANOVIC: Yes. Sorry.
11 THE WITNESS: Which is the settlers, I believe, just looking at
12 where people were gone were people who were probably are Croats that
13 Tudjman wanted to bring to settle in in the Krajina in the place of the
14 Serb population, and I say that because I -- the counties where we
15 settled largely include the former Sectors North and South. What's
16 striking, of course, is how few people wanted to go and actually settle
17 in those places.
18 JUDGE ORIE: Yes.
19 And now just for my information, the Knin area now is which
20 county.
21 MR. KUZMANOVIC: Your Honour, it is category 15.
22 JUDGE ORIE: 15. Yes. Sibenik-Knin, yes, I see it. You
23 referred to it earlier.
24 Yes, I think I now understand what it is about. Thank you.
25 MR. KUZMANOVIC: Thank you, Your Honour.
Page 5172
1 JUDGE ORIE: Although of course you're not supposed to give
2 evidence, I take it, Mr. Tieger, that such an explanation of a table does
3 not meet any objection.
4 MR. TIEGER: No, no. Certainly not in respect of
5 Mr. Kuzmanovic's faith in that information. That goes to -- that goes to
6 my -- to the information I wanted to elicit what this document is about,
7 is it part of a large, where the information that elucidated the document
8 and so on.
9 JUDGE ORIE: Yes. And I limited myself to what I see on the
10 document.
11 MR. KUZMANOVIC: We will get that to you, counsel.
12 JUDGE ORIE: Yes.
13 MR. KUZMANOVIC: Your Honour, or, Mr. Registrar, please D214.
14 Q. While it is it coming up on the screen, Mr. Ambassador, this is a
15 closed session of the government of the Republic of Croatia
16 on the 5th of October of 1995. You can see the prime minister is at this
17 session, Dr. Granic, who is the minister of foreign affairs, is at this
18 session, and you have Minister Jarnjak, the minister of internal affairs,
19 Dr. Hebrang, who is the minister of health, and several other ministers
20 and deputy prime ministers.
21 We've got an agenda on the second page and this is the specific
22 issue I want to refer to. I'm showing you the agenda first and then I
23 will go to the minutes themselves. The agenda talks about the
24 information on the killing of nine civilians in the village of Varivode
25 which we've heard something about at this trial.
Page 5173
1 Are you familiar with that at all Mr. Ambassador?
2 A. With what happened at Varivode?
3 Q. Yes.
4 A. Certainly I was at the time, and we raised this issue in a very
5 strong way with the Croatian government.
6 Q. If you look on page 8 or, actually, of the partial draft of the
7 translation, at least in terms of the summary, and I will give you the 3D
8 number on the bottom right. It is 0696.
9 And before I get to the actual transcript, I'll just give you a
10 little synopsis of what the transcript is about so you can get some
11 context, Mr. Ambassador. Here the minister of internal affairs is
12 reporting about this incident, and on the measures taken by the Ministry
13 of Internal Affairs, after a discussion which took place which was led by
14 Prime Minister Valentic.
15 MR. KUZMANOVIC: Your Honour, I would like to move -- well, D214
16 is already in.
17 We'll go to D215. And we'll go to 0681.
18 Q. Again, I will stress there was a closed session. So there is no
19 public hearing, there is no newspapers to see, there is no grandstanding
20 in front of the television cameras here, to give you the context. This
21 is a closed meeting within the parliament of these particular people that
22 were listed in the agenda.
23 The paragraph above the prime minister is Mr. Jarnjak talking at
24 the end of essentially that he hopes in a few days: "We will have
25 information. So very soon we will be able to publicly release the names
Page 5174
1 of the persons who even perpetrated this act."
2 So he is basically advising the group present about what he is
3 doing, and the prime minister of Croatia talks on the following few
4 pages, and I think it is very important, given the fact that is a closed
5 session --
6 MR. KUZMANOVIC: Go ahead, counsel.
7 MR. TIEGER: Sorry, just before we leave that page I noted that
8 an aspect of the paragraph above the one that was read out bears on a
9 comment made earlier by the witness in connection with -- with the
10 Varivode incident, and I thought it might be helpful for the witness to
11 see it or for it to be read out.
12 MR. KUZMANOVIC: Sure. Relates to the accusations made by the
13 Croatian Helsinki Committee regarding this incident. And perhaps the
14 politization one way or the other of what was going on in Varivode in
15 relation to the investigation.
16 A. Well, I think the just before what you read is actually more
17 relevant, which is "I'm saying The pressure from the public, from the
18 international public on all sides is exceptionally great, and this is an
19 attempt. We released a statement on yesterday -- on Monday, we released
20 a statement yesterday, renewing the statement given a broad response to
21 the accusations made by the Croatian Helsinki Committee because this is
22 now certainly conducive to this climate and the election campaign
23 activities which have commenced. And everybody is trying to transform
24 this to suit their own sphere of influence of interest." That's a little
25 hard to follow.
Page 5175
1 Q. Translation.
2 JUDGE ORIE: Yes. It's our experience, Mr. Galbraith, that once
3 you start reading, speed of speech goes up. The translation has caught
4 up.
5 Please proceed, where I invite you to slow down or to stop.
6 THE WITNESS: I think that statement is a little confusing to
7 understand, but I think what's important here and what is very consistent
8 with my observations is that phrase, "I am saying the pressure from the
9 international public on all sides is exceptionally great." That was
10 their concern.
11 MR. KUZMANOVIC:
12 Q. Well, let's see what the prime minister's discussion in the
13 bottom of that page and in the following page says.
14 At the bottom of the page, the prime minister talks about, and I
15 will start in the middle: "But above all I want to say here for the sake
16 of the minutes and for the sake of my own accountability, a state in
17 which civilians are killed regardless of whom is in question, thus the
18 state cannot intervene ... "
19 And we'll go to the next page. "Where it cannot protect
20 civilians, that state has no chance of achieving those objectives for
21 which we are fighting. I understand entirely that there is a little of
22 everything, vengeance, and greed, and violence, but we have to accord the
23 greatest importance to this. I spoke about this with the utmost gravity
24 with the president of the country who is the only one with the
25 possibility because he has authority over the army's Chief of Staff where
Page 5176
1 the government has no normal nor de facto, for that matter, authority, so
2 I therefore personally, and I will say this on every occasion, I will not
3 remain at ease as a person until we find this perpetrator and until he is
4 punished.
5 "This is significant to everyone who lives in this state. Nobody
6 can kill anybody, particularly not innocent elderly people, and for this
7 to be on behalf of higher purposes. There are no higher purposes for
8 which this may be considered justified, but this cannot by any means be
9 simply forgotten. Another important thing to say, events of this nature
10 cause great damage to us, political and economic. Croatia cannot join
11 the council of Europe
12 financial institutions. Those of you now going to Washington will see -
13 tomorrow I am going to Warsaw
14 which we will be confronted here -- there."
15 The statement goes on in very strong language on the rest of this
16 page and continues into the next page, if we could go to the next page.
17 At the last paragraph. He ends with - that's Prime Minister Valentic -
18 ends with: "Therefore, this is very serious. And I am telling you my
19 views as a person and as the prime minister, and I repeat that I am aware
20 that in a such a horrible situation in which hundreds of thousands of
21 people are displaced, refugees, and killed that all kinds of things
22 happen. But it is the test of the state -- but the test of the state
23 lies in the fact of whether we can stop this or not. To speak of a
24 market economy, to speak of democracy where people are killed, ladies and
25 gentlemen, this simply does not exist. Let us introduce military
Page 5177
1 administration, police administration there, anything, let us set up
2 camps, put up barbed wire, but we cannot have cowboys going around and
3 killing people."
4 Now that sounds like something you would have said,
5 Mr. Ambassador.
6 A. If I could have said it as eloquently as Prime Minister Valentic
7 said it, but I've testified before on this point but I will repeat it.
8 There were many decent people in the government of Croatia who did not
9 like what was going on. I already spoke about Foreign Minister Granic.
10 I didn't interact as much with Valentic, but clearly it is a sing of --
11 strong statement from him and a sign that he was a person of integrity.
12 Q. Does the tone of this discussion, given in a closed session, by
13 the prime minister of the country, sound to you like this was a
14 government that had no desire to prevent this sort of thing from
15 occurring?
16 A. There were people in the government who did not want this to
17 occur, but I think I have to call your attention to something that Prime
18 Minister Valentic said earlier in that statement, and if you go back to
19 the previous page, I'll --
20 Q. Sure. Yes, near the top regarding the president.
21 A. Is that -- yes. "I spoke with utmost gravity with the president
22 of the country who is the only one with the possibility because he has
23 the authority over the army's Chief of Staff where the government," the
24 government meaning the prime minister and his cabinet, "has no formal nor
25 de facto for that matter authority." And under the Croatian system as it
Page 5178
1 existed under Tudjman, the president was in charge of national security
2 and of the Ministry of Defence and foreign affair, not the prime
3 minister.
4 Q. You would agree with me that not just Prime Minister Valentic and
5 Foreign Minister Granic that there were significant numbers of people
6 within the Croatian government that detested this and wanted to have it
7 stopped at all possible costs?
8 A. Yes, there were others, absolutely. And I think you see this.
9 This is one reason why I believe our pressure was effective because we
10 actually had allies within the Croatian government, among the Croatian
11 public, among the non-governmental organisations, and I think the
12 Croatian people, and you see this very clearly in 2000 when the elections
13 took place and they voted overwhelmingly for a president and prime
14 minister who made possible the returns that we looked at in that
15 paragraph chart.
16 Q. I'd like to show you a very short video-clip, Mr. Ambassador. It
17 is probably less than 15 seconds.
18 MR. KUZMANOVIC: This is an transcript. It is two people and it
19 is about four lines and the booth does have it.
20 [Videotape played]
21 MR. KUZMANOVIC:
22 Q. This particular snippet was a snippet from General Mladic who
23 talked about the potential of what would happen at Bihac, similar to what
24 happened at Srebrenica and Zepa, and that was a very real fear and you've
25 talked about that fear, correct?
Page 5179
1 A. Yes. It was a very real fear. Seeing him gives me a certain
2 chill to think about what would have happened had he succeeded in taking
3 Bihac.
4 MR. KUZMANOVIC: Your Honour I would like to move that short
5 snippet into evidence. It's 3D00-1356.
6 JUDGE ORIE: Mr. Kuzmanovic the text does not appear in the
7 transcript. It just says "videotape played." These were only a couple
8 of lines.
9 MR. KUZMANOVIC: There were four lines.
10 Why don't we just play it again, Your Honour, and maybe hopefully
11 it will get picked up in the transcript. It is short enough for it.
12 JUDGE ORIE: Can the booth work with the transcript provided and
13 the transcript reflect the English translation of the words spoken by the
14 persons appearing in the individual.
15 Could we play it again, yes.
16 [Videotape played]
17 "REPORTER: Mr. General, will the Muslims from Bihac continue to
18 provoke the Serb defence in the area of Ribic and there on much longer?
19 "RATKO MLADIC: Yes, they will until they have been completely
20 defeated as they were in Srebrenica and Zepa."
21 MR. KUZMANOVIC: Did that remedy it, Your Honour.
22 JUDGE ORIE: I noted that we have it now on the transcript,
23 question and answer. I heard it being translated into French as well and
24 I think the original is on the audio.
25 Let's proceed.
Page 5180
1 MR. KUZMANOVIC:
2 Q. Mr. Ambassador were you aware of an operation that the ARSK was
3 going to conduct in conjunction with the Bosnian Serb army called
4 Operation Mac during this time-frame?
5 A. The code-name right now doesn't -- I can't think of what it was,
6 but I knew that the ARSK and the Bosnian Serb army were together
7 attacking Bihac.
8 Q. I just like Your Honour -- we have -- go ahead counsel?
9 MR. TIEGER: I just notice that after Mr. Kuzmanovic moved the
10 snippet of the video into evidence, the concern was raised about the
11 translation, so it --
12 JUDGE ORIE: Yes.
13 MR. TIEGER: -- never connected that process.
14 JUDGE ORIE: Thank you for reminding me, Mr. Tieger. May I take
15 it that this is to say that you have no objections?
16 MR. TIEGER: Your Honour, yes, that's completely correct. That
17 looks like the same video we have seen before. I just want to confirm
18 that we have it in its entirety and can --
19 MR. KUZMANOVIC: Yes. That was the snippet shown in opening
20 statement that the Gotovina had done.
21 JUDGE ORIE: Yes.
22 MR. TIEGER: And we have -- it looks like the same interview that
23 was shown in other contacts, so as long as we have the entire interview,
24 I'm satisfied.
25 MR. KUZMANOVIC: Yes, you do have the entire interview.
Page 5181
1 MR. TIEGER: Thank you.
2 JUDGE ORIE: Is the entire interview in evidence?
3 MR. KUZMANOVIC: I don't believe so, Your Honour. I think we've
4 seen various clips from it.
5 JUDGE ORIE: Various clips, separate portions. Then
6 Mr. Registrar, this part would be...
7 THE REGISTRAR: Your Honours, this becomes Exhibit D430.
8 JUDGE ORIE: D430 is admitted into evidence.
9 Please proceed.
10 MR. KUZMANOVIC: Thank you, Your Honour.
11 I'd like to call up a document regarding Operation Mac,
12 3D00-0773. And we've asked for this document to be translated into
13 English, Your Honour, quite some time ago. It has not been translated
14 and I was going to ask my counsel -- my colleague Goran to read just a
15 portion of this document in Croatian, and it will be translated and then
16 I will ask Mr. Galbraith a question about it.
17 JUDGE ORIE: Yes. Although it is it not the task for the
18 interpreters to provide translations, but if very small portions are read
19 that doesn't meet usually such objections that we couldn't do it.
20 MR. KUZMANOVIC: It is small, Your Honour, and we put in for a
21 while ago, actually.
22 JUDGE ORIE: Yes, please proceed.
23 MR. KUZMANOVIC: If we could pull that document up, too so it
24 could be followed along even despite it's only a B/C/S document.
25 MR. MIKULICIC: So this document is an information from the main
Page 5182
1 headquarters of the Republika Srpska army department of security, and it
2 has been titled as realisation of the task from the operative action
3 called Mac, which means Sword 1, and I will seed it in original, just a
4 small portion of this document.
5 It says like this: [Interpretation] "In the beginning of the
6 month of July this year, the command of the Main Staff of the Serbian
7 army of Krajina wrote a directive on the execution of Operation Mac,
8 Sword, which relates to active operations against the 5th Corps with the
9 objective of crushing it completely.
10 "Operation Sword should have, according to plan, begun on the
11 15th of July, year 1995 as is meant in the title, in the early morning
12 hours. The operation engages the forces of the Command Pauk, as well as
13 parts of the forces of the 21st and 39th Corps. In the framework of this
14 operation (during preparations), the commander of the Serbian army of
15 Krajina decided to use biological means, namely the method of poisoning
16 consumer articles, (flour, sugar, oil, liquid detergents for
17 dish-washing), and sell in illegal trade these to the 5th Corps, thus
18 causing massive disease among fighting men and disabling them.
19 Incubation lasts from five to seven days," I'm reading a footnote, "a
20 normal dose has been tested on the illegal -- illegally defected member
21 of the Ustasha, Goran Marijanovic, by injecting into a liquid meal of
22 which humanitarian international organisations knew nothing. Within
23 three days the above mentioned symptoms occurred that lasted six days.
24 Medical assistance was given to him which probably shortened the duration
25 of the response.
Page 5183
1 "This pharmaceutical is in the form of powder produced in
2 Republika Srpska. If taken in larger quantities and depending on the
3 resistance powers of a particular individual, they can cause death.
4 Otherwise, the side effects of normal use are stomach conditions,
5 diarrhea, headache, and stomach cramps. As of the 22nd July 1995 we have
6 not registered any cases of disease. Securing these articles for sale to
7 the 5th Corps and injecting them into food in order -- and other articles
8 in order to disable manpower was done by the intelligence centre from the
9 intelligence administration of the Main Staff of the army of Yugoslavia
10 located in Topusko, in which -- which action involved Colonel Nikola
11 Zimonja and Lieutenant-Colonel Milan Krgovic. Also engaged was a
12 self-employed businessman, Nenad Misevic from Glina."
13 MR. KUZMANOVIC: Thanks for your patience in listening to that,
14 ambassador.
15 Does this particular Operation Mac, does that refresh your
16 recollection at all as to whether or not you knew -- had any idea of that
17 operation being contemplated by the joint Bosnian-Serb RSK?
18 A. Well, I did know about a -- as I testified on a number of points
19 about a joint operation of the army ARSK and the Bosnian-Serb army
20 intended to take Bihac, which is obviously the same as what we're talking
21 about here when they speak of crushing the 5th Corps.
22 Now as to the other part of this document which relates to trying
23 to poison the 5th Corps, of that I had no information, at least as best I
24 can recall and it is pretty dramatic.
25 MR. KUZMANOVIC: Your Honour, I'd like to move that -- tender
Page 5184
1 that document into evidence please.
2 JUDGE ORIE: Mr. Tieger.
3 MR. KUZMANOVIC: We can MFI that if necessary... [Overlapping
4 speakers] translation.
5 MR. TIEGER: That's probably more prudent, but I'm at Court's
6 disposal for that. I think -- sorry I'm looking at the translation which
7 I don't think corresponds to this. But again, in general, no objection,
8 but if it is going to be independently translated then I suppose that
9 should be reviewed.
10 JUDGE ORIE: At the same time, Mr. Kuzmanovic, what now happened
11 is a part from a small portion of crushing the 5th Corps, that we get a
12 long story about the use of poison, where the witness says, I have got no
13 idea about it. That is of course not an appropriate way of proceeding.
14 You should have asked the witness first, in relation to such an
15 operation, were you aware of any reports about poison being used to
16 eliminate opponents and you might have given one or two details in order
17 to refresh his memory, but now it becomes a demonstration.
18 MR. KUZMANOVIC: Your Honour, had I had the translation that's
19 probably what I would have done and I apologies for taking up a little
20 bit more time than --
21 JUDGE ORIE: It's not only about time, Mr. Kuzmanovic. I think
22 that you understand. I'm not blaming you for taking two minutes. I'm
23 blaming you for reading a long story about horrible things intended where
24 the witness says, I've got no idea, and you should have first explored
25 whether we could expect any evidence of this witness on these matters.
Page 5185
1 Otherwise, it is just a demonstration and which we have seen more in this
2 case that we get a long explanation on who was successful in what -- who
3 was horrible person, horrible units. I'm not talking about one party or
4 another.
5 MR. KUZMANOVIC: I will keep that in mind Your Honour.
6 JUDGE ORIE: But let's try not to create devils and angles
7 whoever the devils and angels may have been apart from focussing on the
8 facts.
9 MR. KUZMANOVIC: I will do so, Your Honour.
10 JUDGE ORIE: And this is not by the way addressed just to you but
11 is addressed to all the parties, Prosecution and all Defence parties.
12 And Mr. Kuzmanovic, I'm looking at the clock and I see that we
13 have two minutes left.
14 MR. KUZMANOVIC: I'm on my last section, Your Honour.
15 JUDGE ORIE: Your on your last section, how much time will that
16 take you?
17 MR. KUZMANOVIC: Maybe five extra minutes if they --
18 JUDGE ORIE: Five extra minutes. I will risk the blame by my
19 colleague who supposed to sit in the afternoon.
20 MR. KUZMANOVIC: Blame me, Your Honour.
21 JUDGE ORIE: Well, that doesn't help, Mr. Kuzmanovic.
22 Please proceed.
23 MR. KUZMANOVIC: Thank you.
24 JUDGE ORIE: Thank you for the offer anyhow.
25 MR. KUZMANOVIC:
Page 5186
1 Q. Mr. Ambassador, you had said that these attacks on Bihac in large
2 part were occurring from the territory of the Republic of Croatia
3 correct?
4 A. No. No. I said that they occurred from the territory of the
5 Republic of Croatia
6 Bihac were by the Bosnian Serb army.
7 Q. Okay. Nonetheless the Croatian territory was being used in part
8 to attack Bihac. Correct? At the safe area of Bihac? Because as you
9 said Croatia
10 A. I was just waiting for the translation.
11 Q. Oh. I'm sorry.
12 A. Before I answered your question with yes.
13 Q. Okay. Thank you. And Mrksic, of course, was a JNA general who
14 was using Sector South in conjunction with Mladic in and around Bihac,
15 correct?
16 A. General Mrksic was the commander --
17 Q. I'm sorry.
18 A. General Mrksic was the commander of the army of the Republika
19 Srpska Krajina who was installed by Milosevic and there therefore was in
20 command of the ARSK forces that were attacking Bihac.
21 Q. Okay. I wanted to ask you just a couple of other questions
22 relating to Bihac, specifically related to the UN presence in
23 Sector South.
24 General Forand was the commander of Sector South based there
25 Knin, we you aware of that, Canadian general?
Page 5187
1 A. Yes, I'm sure I was aware of that.
2 Q. He testified here a few weeks ago and at various points in his
3 transcript on page 4401, lines 10 to 17, and 4402, and 03, lines 20 to 25
4 and line 1, and I cite that for the benefit of the record, he was unaware
5 that Bihac was an UN safe area. The question I wanted to ask you was:
6 You dealt extensively with the UN over the course of time you were
7 ambassador in Croatia
8 that the commander of Sector South does not know that Bihac is a
9 protected area?
10 MR. TIEGER: It is difficult to -- sorry Your Honour, difficult
11 to imagine how that kind of inquiry is anything other than speculative
12 and can assist the Court.
13 MR. KUZMANOVIC: If he doesn't know, he can tell me.
14 JUDGE ORIE: I was listening to the French translation so just
15 catch up. Yes, the question what are you going at, the reference to a
16 lot of transcript pages, and then the question I do not see. But if you
17 understood the question, if you can simply answer that question,
18 Mr. Galbraith, you're invited to do so.
19 THE WITNESS: All I can say is that I would be very surprised and
20 dismayed, to be honest, if the commanding general of the UN forces did
21 not know that Bihac was a safe area. But I can't answer your question as
22 to how it is -- as to, first, whether he didn't know, because I don't
23 know, and how it's possible that he didn't know.
24 MR. KUZMANOVIC:
25 Q. The last area I'd like to talk to you about or the last question
Page 5188
1 would be -- would you agree with me that, in terms of the overall
2 solution to the problem, both in Croatia
3 part of the solution and was not part of the problem?
4 A. Croatia
5 1993, it became part of the solution in 1995 and then became part of the
6 problem in the immediate aftermath of military operations and eventually
7 in the late 1990s and certainly after the change of government in 2000
8 has been very much a part of the solution.
9 MR. KUZMANOVIC: That's all I have, Your Honour. Thank you.
10 JUDGE ORIE: Thank you, Mr. Kuzmanovic.
11 MR. KUZMANOVIC:
12 Q. Thank you, Mr. Ambassador.
13 MR. KUZMANOVIC: Your Honour, did we get a D number for that --
14 JUDGE ORIE: Do we get a D number for that, we get a --
15 MR. KUZMANOVIC: MFI.
16 JUDGE ORIE: D number but it should be MFIed for the time being
17 because there is no translation yet and Mr. Tieger has not finally taken
18 position.
19 Mr. Registrar.
20 THE REGISTRAR: Your Honours, this is document 3D00-1310 and it
21 becomes Exhibit D341 marked for identification.
22 JUDGE ORIE: Thank you, Mr. Registrar.
23 MR. KUZMANOVIC: Thank you, Your Honour.
24 Could you give us an indication, Mr. Tieger, and since I know
25 Mr. Galbraith is listening as well, how much time you need to re-examine
Page 5189
1 the witness in taking that still the Cermak Defence has no questions for
2 the witness.
3 MR. TIEGER: Well, we certainly finish in the -- unless the Court
4 would have extensive questions we would finish in the first session
5 tomorrow.
6 JUDGE ORIE: First session is re-examination or the whole of it?
7 MR. TIEGER: No, I would not need all of that, and I think --
8 JUDGE ORIE: How much would you need?
9 MR. TIEGER: I'm estimating 45 minutes to an hour right now, but
10 I'll work on that this evening.
11 JUDGE ORIE: Over night the need for time grows, doesn't it.
12 MR. TIEGER: Actually, it can go in either direction, Your
13 Honour.
14 JUDGE ORIE: Yes, that's good.
15 Could I get an indication from the Defence teams.
16 Mr. Kehoe.
17 MR. KEHOE: Yes, Your Honour. Naturally, if there is any further
18 commentary on redirect examination, that would be all we would have.
19 JUDGE ORIE: Yes, of course. It is difficult to give an
20 estimate --
21 MR. KUZMANOVIC: The same Your Honour.
22 JUDGE ORIE: Same. At least, Mr. Galbraith, this could make you
23 confident that we'll finish tomorrow, hopefully not too late in the
24 morning, because we'll -- we will adjourn, but not until after I have
25 instructed you not to speak with anyone about the testimony whether
Page 5190
1 already given or still to be given. And we adjourn until tomorrow
2 morning, 9.00 and I think it's Courtroom II, Mr. Registrar.
3 Mr. Registrar is nodding yes.
4 So it is Courtroom II.
5 --- Whereupon the hearing adjourned at 1.52 p.m.
6 to be reconvened on Thursday, the 26th day of June,
7 2008, at 9.00 a.m.
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