Tribunal Criminal Tribunal for the Former Yugoslavia

Page 10592

 1                           Wednesday, 15 October 2008

 2                           [Open session]

 3                           [The accused entered court]

 4                           [The witness entered court]

 5                           --- Upon commencing at 9.03 a.m.

 6             JUDGE ORIE:  Good morning to everyone.

 7             Mr. Registrar, would you please call the case.

 8             THE REGISTRAR:  Good morning, Your Honours.  Good morning to

 9     everyone in the courtroom.  This is case number IT-06-90-T, The

10     Prosecutor versus Ante Gotovina, et al.

11             JUDGE ORIE:  Thank you, Mr. Registrar.

12             Good morning to you, Mr. Hayden, as well.

13             THE WITNESS:  Good morning.

14             JUDGE ORIE:  May I remind you that you are still bound by the

15     solemn declaration that you gave yesterday at the beginning of your

16     testimony.

17             THE WITNESS:  Yes, Your Honour.

18             JUDGE ORIE:  Mr. Du-Toit.

19             MR. DU-TOIT:  Thank you, Your Honour.  Good morning.

20                           WITNESS:  WILLIAM CURTIS HAYDEN [Resumed]

21                           Examination by Mr. Du-Toit: [Continued]

22        Q.   Good morning, Mr. Hayden.

23             MR. DU-TOIT:  Mr. Registrar, can we please have again 65 ter

24     00769, and paragraph 4.1, please.  Thank you.

25        Q.   Mr. Hayden, as you can see on the screen when we adjourned

Page 10593

 1     yesterday we were talking about paragraph 4.1 of your report in front of

 2     you.  Do you see it there?

 3        A.   Yes.

 4        Q.   Now, in paragraph 4.1 you mentioned that you arrived at the Knin

 5     cemetery about 1530 and you were accompanied by the -- Cermak, the agent

 6     officer and also an unidentified colonel described as a -- as an

 7     information officer.  Now, this information officer, where did he come

 8     from; do you know?  Did he join you there, did he came with you from

 9     General Cermak's office or can you maybe assist the Court with that,

10     please?

11        A.   I'm not sure where he actually came from, but he joined the

12     liaison officer at the cemetery.

13        Q.   And as you indicated in your statements, you didn't get his name

14     although you made a sort of description of him.  Is that correct?

15        A.   That's correct.

16        Q.   Now, it is also clear from your statements that you -- at that

17     time and it appears it was sort of towards the end of your mission, that

18     you also had certain questions in your mind and in fact you asked this

19     information officer some questions.  Is that correct?

20        A.   That is correct.

21        Q.   Now, before we go to the specific questions that you put to him

22     at that stage, maybe if we can maybe just go back to your report that you

23     prepared just to maybe to highlight or clarify some issues before we deal

24     with the specific questions.

25             MR. DU-TOIT:  So if I can, please, Mr.  Registrar, ask you to go

Page 10594

 1     back to page 3 of the report, paragraph 1, please.

 2             And, Madam Usher, maybe required we provided you with copies of

 3     the statements and also the report.  Can it be provided to the witness if

 4     he requires them.  Thank you so much.

 5        Q.   Mr. Hayden, as can be seen from paragraph 1 of the report it

 6     appears that you made certain headings and discuss certain information

 7     that you were provided under these headings of the report.  Is that

 8     correct?

 9        A.   Yes.

10        Q.   Now, the first heading, as we can see, deals with systematic

11     burning and looting.

12             Now, if I can refer you and maybe just refresh your mind with

13     regard to paragraph 1.1 of this report it appears from the paragraph 1.1

14     that a lot of the information except the last sentence that I will deal

15     with was provided to you by other people.  Is that correct?

16        A.   Yes.

17        Q.   Now, if you look at the last sentence or the second-last sentence

18     of paragraph 1.1 it appears that on the 17th of August you in fact

19     visited the area of Kistanje as you pointed out there and it appears that

20     you personally witnessed some of these incidents.  Is that correct?

21        A.   Yes.

22             MR. DU-TOIT:  Mr. President, just for references purpose, it is

23     also referred to paragraph 10 of the statement of the witness P-987.

24             Now, if we can, Mr. Registrar, just move quickly to the next

25     page, paragraph 1.6, please, just because it is linked.

Page 10595

 1        Q.   Mr. Hayden, if you look at the first paragraph there,

 2     paragraph 1.6, the mission noticed in Kistanje that the only undamaged

 3     building was the orthodox church.

 4             Now when you witnessed that, was that also part of the mission

 5     that you went on, on the 7th of August?

 6        A.   Yes.

 7        Q.   And then, as a result of the information that you obtained during

 8     this mission, did you then, on the 19th, ask the colonel about that

 9     incident?

10        A.   Yes.

11        Q.   Now, what did you ask him and what was his reply?

12        A.   I myself did not ask the question.  One of my colleagues did.  I

13     was standing with him when the question was asked, and the question was

14     in regards to the undamaged church in the village of Kistanje.

15        Q.   And what was the answer?

16        A.   The colonel replied, We don't want to be seen like the Serbs.

17        Q.   And what did you sort of make from that?

18        A.   Well it was a curious response and --

19             MR. KEHOE:  Objection, Your Honour.

20             MR. DU-TOIT:  Mr. President, I think the witness was present when

21     this was --

22             JUDGE ORIE:  The witness may explain to us how he understood the

23     answer that -- first of all, what the answer was, and then, second, how

24     he, at the time, understood the answer.

25             MR. KEHOE:  My objection is pointed to any conclusions that he is

Page 10596

 1     going to articulate.

 2             JUDGE ORIE:  I'll ask -- we'll ask the witness how he understood

 3     at that time the answer, what came to his mind, how he interpreted that

 4     answer.  Whether that is a conclusion which has any merit is still to be

 5     seen but we want to know how he understood it at the time.

 6             Please, could you tell us.

 7             THE WITNESS:  In the context of what the mission had been doing,

 8     and what we had seen in the area, in and around Knin, I felt that the

 9     answer was indicative of sort of a public relations act.  The colonel was

10     informing us that, Look, we protected a religious building and prevented

11     it from being damaged.

12             However, all the other buildings in and around the church were

13     damaged, so we were concerned that not enough effort was being made in

14     regard to controlling or limiting or stopping the destruction of

15     buildings.

16             MR. DU-TOIT:

17        Q.   Thank you.

18             MR. DU-TOIT:  Mr. Registrar, can we go back to 1.2, please, on

19     the previous page.

20        Q.   Now, it appears from sort of the -- I would call the first half

21     of that paragraph, that you provide the reader with a lot of information

22     about the villages et cetera, et cetera.  Is that information that you

23     sort of personally obtained or was it -- or were you informed about it?

24        A.   A combination of both.  It was information received from UN

25     personnel, as well as our own visits to these various villages.

Page 10597

 1        Q.   If I can be maybe more specific if we move to sort of the -- the

 2     middle of that paragraph, where it begins with the words and I quote:

 3     "During movements through the area mission members witnessed numerous

 4     houses in the final stages of burning while driving through Knin to Drnis

 5     on 18th of August."

 6             Then I will skip and then you: " ... returned on the 19th of

 7     August?"

 8             Is that sort of an aspect of an area that you personally

 9     witnessed and observed as part of your mission?

10        A.   Yes.

11             JUDGE ORIE:  Mr. ...

12             MR. DU-TOIT:

13        Q.   Now, if we can move to paragraph 1.3 there, please, you indicate

14     there in the second sentence that in, and I quote:  "In movements through

15     the city by car and foot the mission saw that Knin had been

16     systematically and completed looted.  The majority of the damage was

17     caused by the looting."

18             Is this something that you also personally observed?

19        A.   Yes.

20        Q.   And can you maybe give us an indication as to when did that

21     happen.  Was that -- give a date, was it on the 17th or the 18th or the

22     19th.  Can you still recall?

23        A.   All three day, as we were in and around Knin.

24        Q.   Now, the last sentence on paragraph 1.3 you talk about the

25     preliminary assessment of damages to houses.  Is that also information

Page 10598

 1     that was provided to you?

 2        A.   Correct.

 3             MR. DU-TOIT:  Mr. President, just for the record, it appears that

 4     information may be emanating from P64.

 5             If we can move to the next page, please, paragraph 1.4.

 6        Q.   There you mention, and I go to the second line of the

 7     paragraph that the mission spoke with people in.  Can you -- can you

 8     perhaps inform us who these people were?

 9        A.   These persons were displaced individuals who had taken shelter at

10     the UN compound who we spoke with and who had been residents of Knin at

11     the time that the offensive took place.

12        Q.   And then the last sentence of paragraph 1.4, and I quote:

13     "Mission members saw on numerous occasions soldiers driving civilian

14     vehicles without licence plates loaded with goods from both houses and

15     stores.  "

16             Did you also personally observe this?

17        A.   Yes.

18             MR. DU-TOIT:  Mr. President, just for the record purposes,

19     further information on this appears in paragraph 14 of the witness

20     statement, P987.

21        Q.   Now, if we can move to paragraph 2 on that page.  It appears that

22     you in fact interviewed some of these people and the information that you

23     put down there, you received from these people.  Is that correct?

24        A.   Yes.

25             MR. DU-TOIT:  Next page please paragraph 5 -- page 5,

Page 10599

 1     paragraph 2.1.1.

 2        Q.   It also appears that you interviewed some people and then you put

 3     down the information that you received as the result of these interviews.

 4     Is that correct?

 5        A.   Yes.

 6             MR. DU-TOIT:  Next page, page 6, please, paragraph 3.

 7        Q.   There you talk about civilian casualties and missing persons and

 8     in paragraph 3.1 of the report you talk about that General Cermak gave

 9     you a full list.  Now, the lists that you are talking about, did you

10     receive them at the meeting that you had with him on the 19th of August?

11        A.   Yes.

12             MR. DU-TOIT:  Next page, page 7, please.

13        Q.   Now, you now deal with another topic, the mass grave in Knin

14     cemetery and we already dealt with that and you informed us about the

15     question that was put to this information officer.  Is that correct?

16        A.   Yes.

17             JUDGE ORIE:  Mr. Du-Toit, as far as the numbering of pages is

18     concerned, can we just look at the English at the bottom.

19             Madam Usher, could you assist us.  The page we're on, could we

20     see the bottom page numbering.

21             Yes, you're referring to pages which is apparently the sequential

22     numbering of the pages in the electronic document although the page

23     numbering in the hard copy is always one less.

24             MR. DU-TOIT:  That is so.  I thought -- you're absolutely right,

25     Your Honour.

Page 10600

 1             JUDGE ORIE:  No, just for the record.

 2             MR. DU-TOIT:  Okay.

 3             JUDGE ORIE:  So people do not start getting confused.

 4             MR. DU-TOIT:  Thank you.

 5             Can we then move to paragraph -- page 8, paragraph 5, please.

 6        Q.   There, Mr. Hayden, you refer back to basically three meetings

 7     that you had with -- with persons identified in paragraph 5.1, 5.2, and

 8     5.3.  Were you present during this interview and is this a fair

 9     reflection of what happened during these interviews?

10        A.   Yes.

11             MR. DU-TOIT:  Then if we could move to the next page, please,

12     page 9, paragraph 5.4, please.

13        Q.   This also indicates that you had discussions with UN personnel on

14     the 17th to the 19th of August, and there you inform the reader about the

15     conversations you had with these people.  Is that correct?

16        A.   Yes.

17             MR. DU-TOIT:  And can we move to the next page, please, page 10,

18     and specifically paragraph 5.4.6, the last sentence.

19        Q.   If I can just refer you to the last sentence, Mr. Hayden, and I

20     quote:  "The HV colonel stated that the intent of the shelling was

21     specifically to create a disorganised mass panic and exodus of Serbs."

22             Now, firstly, this HV colonel that you referred to, was that the

23     same person that you met on the 19th of August or was it a different

24     person?

25        A.   The same person.

Page 10601

 1        Q.   And who posed this -- the question to him; can you still

 2     remember?

 3        A.   I did.

 4        Q.   And what did you make from the answer?

 5        A.   Well, it confirmed the information received from the UN officer

 6     that we spoke with, the Senior Military Observer --

 7             MR. KEHOE:  Excuse me, Judge.

 8             JUDGE ORIE:  Yes, Mr. Kehoe.

 9             MR. KEHOE:  Objection to what we're talking about.

10             JUDGE ORIE:  Yes.  Did you, at that time, develop any thoughts on

11     what this answer would mean?  And, if so, please tell us what thoughts

12     you developed at that time.

13             THE WITNESS:  The HV colonel's answer was similar to other

14     answers I had received in conversations with people that we had

15     interviewed during that period of the 17th to the 19th.  And in addition,

16     it seemed to confirm information that we had come across prior to our

17     arrival through print and electronic media, and the impression that I

18     had, based upon this various information, was there had been a very

19     particular use of -- of artillery in the offensive, designed not so much

20     to destroy or damage but to cause a panic effect amongst the civilian

21     population.

22        Q.   Thank you.  And if we can just refer to paragraph 6 just lastly:

23     "Sector North Krajina."  This is information that you received after you

24     had sort of terminated the mission.  Is that correct?

25        A.   Yes.

Page 10602

 1             MR. DU-TOIT:  Mr. President, I request that this document be

 2     admitted into evidence, 65 ter 769, please.

 3             JUDGE ORIE:  Has a new version been uploaded in which any

 4     reference to Mr. Hjertnes is removed?  And has this been shown to the

 5     Defence?

 6             MR. DU-TOIT:  We haven't uploaded it yet, but we've discussed it

 7     with the Defence this morning, Your Honour, and we've agreed that regard

 8     to paragraph 5.4.6 everything will be redacted expect the last sentence

 9     that I just read out.

10             MR. KEHOE:  Yes, Your Honour.

11             MR. DU-TOIT:  If that is agreement.

12             MR. KEHOE:  I consulted with counsel prior to that time and I

13     think that in a review of the document that is agreeable.  So subject to

14     our prior objections on this, that's agreed.

15             JUDGE ORIE:  Yes.  You agree that the instructions of the Chamber

16     were followed by the Prosecution --

17             MR. KEHOE:  Yes.

18             JUDGE ORIE:  -- as far as redactions are concerned.

19             MR. KEHOE:  Yes, Your Honour.

20             JUDGE ORIE:  Now then where does it start, Mr. Du-Toit?

21             MR. DU-TOIT:  It will start --

22             JUDGE ORIE:  Where do we start reading?  You said from the

23     beginning so it is in a conversation with, that is where the redaction

24     starts, up to --

25             MR. DU-TOIT:  Up till the -- we thought, you know, up till the

Page 10603

 1     sort of the information officer which is inverted commas, until then.  It

 2     is sort of second --

 3             JUDGE ORIE:  Yes.

 4             MR. DU-TOIT:  -- third part of it.

 5             JUDGE ORIE:  I take it that you -- that sentence starts with:

 6     "His impression."  Now if you start there, it may be totally unclear who

 7     he is.

 8             MR. DU-TOIT:  That's what we discussed.

 9             JUDGE ORIE:  That's what you discussed.

10             MR. DU-TOIT:  Although it is in his statement also but we felt

11     maybe you know that -- you're quite right because the information was

12     confirmed and that is why the question was asked, as you can see.

13             MR. KEHOE:  My understanding is that if --

14             THE INTERPRETER:  Could Mr. Kehoe please speak in the microphone.

15     Thank you.

16             MR. KEHOE:  Yes.  My understanding on that paragraph was

17     everything out of there except the last sentence on paragraph 5.4.6.

18             JUDGE ORIE:  So what we then would -- what then would remain is

19     the HV colonel stated that the intent of the shelling ... that's where we

20     start reading again.

21             MR. KEHOE:  Yes, sir.

22             JUDGE ORIE:  And from the answer just given by the witness, we

23     understand that the HV colonel is the information officer which is

24     mentioned in the previous sentence, which is taken out, which is the same

25     person as he referred to earlier in his testimony.

Page 10604

 1             MR. KEHOE:  Yes, sir.

 2             JUDGE ORIE:  Then -- so then the redaction, with this

 3     clarification on the record, should be everything apart from the last

 4     sentence.

 5             MR. DU-TOIT:  Thank you, Your Honour.  We will do so.

 6             MR. KUZMANOVIC:  And, Your Honour, I would add that section 6

 7     deals with Sector North which is not part of the indictment, and I would

 8     suggest that that section be redacted as well.  I have no idea why it

 9     would need to remain in there.

10             MR. TIEGER:  Your Honour, I'm only rising because I dealt with

11     the objections yesterday.  I don't think they should be seriatim.  We

12     consulted with counsel this mourning with respect to the issues raised

13     yesterday and I would suggest that the document be tendered as it is.

14             MR. KUZMANOVIC:  Is it or is it not part of the indictment?

15     Sector North is not part of the document.  It should not be in the

16     document.  It is pretty simple.

17             JUDGE ORIE:  It is not as simple as that, Mr. Kuzmanovic, if

18     something is not part of the indictment.  Bosnia is not part of the

19     indictment either.  I mean, sometimes have you some background

20     information.

21             We'll look at, but I -- the Chamber will consider whether --

22     where it stops that we can add objections to documents that were

23     submitted on the 23rd of September.

24             We'll consider that.  Mr. Du-Toit, perhaps you wait a moment with

25     uploading so that the Chamber will first consider whether paragraph 6 of

Page 10605

 1     the report is in need of further redaction and then only then uploaded.

 2             Then we also will not decide on admission at this very moment

 3     because we would not know what we are admitting.  The document, the

 4     redaction in paragraph 5.4.6 is clear.  The Chamber will further consider

 5     paragraph 6 and for the time being, the document remains MFId.

 6             Please proceed.

 7             MR. DU-TOIT:  Thank you, Your Honour.

 8             Mr. Registrar, I was -- just brought to my attention will you

 9     also provide a number later or ...

10             JUDGE ORIE:  No.  I do agree that to have it marked for

11     identification it needs a number.  Otherwise there is no mark.

12             Mr. Registrar.

13             THE REGISTRAR:  Your Honours, that becomes exhibit number P988,

14     marked for identification.

15             JUDGE ORIE:  Thank you, Mr. Registrar.

16             MR. DU-TOIT:  Thank you, Your Honour.

17        Q.   Mr. Hayden, we just dealt now with this report that you prepared

18     dated the 25th of August, 1995.  Can you please inform the Court whether

19     this was the first sort of type of report that you prepared dealing with

20     aspects like this or did you had any other experience of preparing

21     similar reports dealing with other situations?

22        A.   Yes, I have had experience preparing other reports.

23        Q.   Can you perhaps enlighten the Court on that, please?

24        A.   Well, previous to this mission, I had been in Serbia where I had

25     been working with the Serbian Helsinki Committee on the question of

Page 10606

 1     Kosovo and spent several weeks there interviewing prisoners, Albanian

 2     Kosovar prisoners in Kosovo and preparing a report on their mistreatment

 3     by Ministry of Interior personnel.

 4             And prior to that, there had been work on the -- the conflict in

 5     Chechnya which included a fact-finding mission and in which -- in which

 6     we examined similar questions as we did in the report on the Krajina.

 7        Q.   Thank you.  Now, with the knowledge that you had in preparing

 8     this report that was just marked for identification, can I please take

 9     you back to the second statement that you made.

10             MR. DU-TOIT:  Mr. Registrar, it's Exhibit P987.  And can we

11     please move to paragraph 18 thereof.

12        Q.   Now, Mr. Hayden, can you just please have a look at paragraph 18

13     of your statement.  There you deal with observations and conversations,

14     et cetera.  And then it appears from the statement, first, that in

15     paragraph 18 and in paragraph 19, and paragraph 20, and then moving on to

16     the next page, that you basically provided four basic reasons why you

17     came to that conclusion that you mentioned in the beginning of

18     paragraph 18.

19             Is that correct?

20        A.   Yes.

21        Q.   Now, correct me if I'm wrong.  Is what you state in paragraph 18

22     to 20 a type of summary of your observations that you talked to us about,

23     what you observed and what others observed in the report that we just

24     had?

25        A.   Yes.

Page 10607

 1        Q.   Can I perhaps just ask you one question on paragraph 19 of your

 2     report -- of your statement, especially the first sentence thereof.  If

 3     can you just read that, please.

 4        A.   "Second, the fact that the initial artillery barrages focussed on

 5     a small number of targets rather than wholesale bombardments indicated to

 6     me that a strategy was sowing terror and intimidation was used rather

 7     than full military engagement with Krajina Serb troops or unlawful and

 8     wanton military acts against non-combatant civilians."

 9        Q.   Can you -- can you perhaps just explore with the Court what do

10     you --

11             JUDGE ORIE:  One second.

12             MR. DU-TOIT:

13        Q.   -- mean by that?

14             JUDGE ORIE:  Yes.

15             MR. DU-TOIT:  Sorry.

16             JUDGE ORIE:  Mr. Du-Toit, would you be so kind to check or find

17     out whether the French translation is finished because a small pause when

18     the translation is ongoing does not help the interpreters fully out.

19             MR. DU-TOIT:  I apologise.  I will do so.  All right.

20        Q.   Can you please answer that question, Mr. Hayden?

21        A.   Would you restate the question, please.

22        Q.   Can you perhaps elaborate on what you understood or what you

23     meant by this sentence that you just read out to the Court.

24        A.   What I understood was that the artillery barrage, barrages or the

25     artillery was not used to target whole areas, villages in particular, or

Page 10608

 1     civilian areas, buildings in these villages that we visited did not

 2     evidence the type of damage that would be caused by artillery shells or

 3     in fact any other kind of combat versus damage that would be caused by

 4     that, and it was readily apparent that the damaged buildings that we saw

 5     were destroyed after combat activity had ceased in these areas.

 6             The buildings exhibited, you know, all of the hallmarks of having

 7     been burned from the inside with some material other than having been

 8     first hit by an artillery shell, for instance.

 9        Q.   Now, in --

10             JUDGE ORIE:  Could I ask a clarification of this answer,

11     Mr. Du-Toit.

12             The line you read, the sentence you read was about the way in

13     which artillery was used and what the purpose of this use of the

14     artillery was.  Asked to explain this, you explained to us that houses

15     were apparently destroyed not through artillery.

16             Now, that doesn't explain much of what you read, because that was

17     about how artillery was used and for what purpose it was used.  So the

18     answer is maybe an impression you may have gained but has little to do

19     with what you read, isn't it?

20             THE WITNESS:  Well, maybe my answer -- my answer spoke to the

21     physical destruction that we witnessed, true.  As to --

22             JUDGE ORIE:  Yes.  But you are talking about, at least you read

23     in paragraph 19, in what way the artillery was used, and, therefore, I'd

24     like to hear from you rather an explanation of what you read than an

25     explanation of how you assessed the damaged apparently not inflicted by

Page 10609

 1     artillery.

 2             You said:  "Initial artillery barrages focussed on a small number

 3     of targets."

 4             Could you explain what targets and what the source of knowledge

 5     for this statement is.

 6             THE WITNESS:  Well, the information that I gained in my

 7     conversations with particularly UN personnel, military personnel, and

 8     information gained in pre-mission research and then the visual evidence

 9     that we saw on the ground all came together in a way to give me the

10     impression that the artillery had been used tactically not to destroy

11     physical structures.  Hence, it was used against limited selected

12     targets.  I may not -- I do not know exactly which targets.  They may

13     have been specifically military targets.  It could have been an open

14     field next to a village, but the intent of the use of the artillery was

15     to cause panic amongst the civilian population and even amongst the

16     military of the -- of the Serb authorities.

17             JUDGE ORIE:  Let me just try to understand your answer.

18             You include the possibility that the small number of targets were

19     military targets.  Yes?

20             THE WITNESS:  I do include that, yes.

21             JUDGE ORIE:  Yes.  At the same time, you apparently gained the

22     impression that this was to cause panic among the civilian population.

23             Could you explain to us how a focussed targeting of military

24     targets -- what makes you then believe that this was intended to -- to

25     cause panic among the civilian population?

Page 10610

 1             THE WITNESS:  Well, the -- not just military targets, but I think

 2     that military targets were included and non-military targets.  And --

 3             JUDGE ORIE:  Could you tell us more about what you know about the

 4     non-military targets.

 5             THE WITNESS:  Well, there were locations in Knin or in other

 6     areas where -- located adjacent to villages where the artillery shells

 7     had landed.

 8             JUDGE ORIE:  Could you give us an example where you -- did you

 9     observe that --

10             THE WITNESS:  No, I did not observe it but you could see the

11     holes left in the ground from the explosions.

12             JUDGE ORIE:  Yes.  Is there any place where you say, We saw not

13     one impact but artillery impacts close to villages where the village

14     itself was apparently not --

15             THE WITNESS:  Yes, we saw that in a couple of villages.

16             JUDGE ORIE:  Do you remember which villages?

17             THE WITNESS:  I don't remember which villages.

18             JUDGE ORIE:  Yes.

19             Please proceed, Mr. Du-Toit.

20             MR. DU-TOIT:  Thank you.

21        Q.   Can I just ask you a follow-up question regarding also

22     paragraph 18 of the report where you talk about that the burning and

23     looting were systematic and coordinated.

24             Can you perhaps enlighten the Court as to the basis for that

25     conclusion that you reached, please?

Page 10611

 1        A.   I and my mission members reached that conclusion based upon the

 2     scope and scale of burned buildings in the villages that we visited

 3     during the time of the mission.  In many cases an entire village would

 4     have been completely damaged by burning caused not by combat, and in

 5     certain cases, these -- when we looked inside these buildings we could

 6     see that they were completely emptied in many cases with nothing but the

 7     debris of the roof and some of the internal structure having fallen

 8     inside the building caused by the burning.

 9             Given that there were so many buildings that we saw exhibiting

10     this sort of damage, we could only come to the conclusion that there had

11     been an organised effort in which individuals were given the material

12     means to burn buildings as well as to take personal possessions out of

13     these -- these buildings prior to them being burned.  And the fact that

14     we saw a number of private vehicles, as indicated in the report, without

15     licence plates, and filled with various kinds of possessions being driven

16     by uniformed members of the Croatian military.

17             JUDGE ORIE:  Can I ask a few clarifications here.

18             Paragraph 18, you say that:  "Buildings that had been owned by

19     ethnic Serbs were marked for burning."

20             Could you tell us how they were marked?

21             THE WITNESS:  Yes, these buildings either had been marked with a

22     rough outline of the Serb Chetnik hand signed or had been spray-painted

23     or marked in such a way that indicated it was a Serbian house in -- to

24     distinguish it from the Croatian houses that had been marked with the

25     phrases mentioned in paragraph 18.

Page 10612

 1             JUDGE ORIE:  If the houses were completely burned, would it still

 2     be visible that they were marked with spray paint?

 3             THE WITNESS:  Many of the houses were not let's say completely

 4     burned to the ground given the common building materials.  But all of

 5     the -- in particular the wood components of the structure would have

 6     burned and collapsed inward, leaving exterior walls still standing in

 7     which you could see these words or images painted.

 8             JUDGE ORIE:  Yes.  Another question is:  How -- from the pattern

 9     of destruction, how can you conclude from that, that people were provided

10     with the material for burning?  I mean, how can I see from the level of

11     destruction that people were provided with material to cause this to

12     happen?

13             THE WITNESS:  Well, it seemed quite reasonable that in order to

14     undertake burning so many physical structures that you couldn't just walk

15     up with a box of matches in your pocket and -- and sort of arbitrarily go

16     to town.

17             These -- these buildings would have had to have been burned using

18     some sort of fuel or accelerant and given that -- given that fuel was of

19     short supply in that region, it would have required that persons who

20     conducted this either brought it with themselves from outside the region

21     or were given the materials to do this.

22             JUDGE ORIE:  Brought from outside or given to them.  There's a

23     lot of reasoning in --

24             Let me just -- let's just assume it was one or two litres of fuel

25     left in a house, in many houses.

Page 10613

 1             THE WITNESS:  Mm-hm.  That could be possible too.

 2             JUDGE ORIE:  That could be possible.

 3             THE WITNESS:  Yes.

 4             JUDGE ORIE:  That would completely undermine your conclusion,

 5     isn't it?

 6             THE WITNESS:  No, not necessarily.  It may have just made the job

 7     easier.

 8             JUDGE ORIE:  You say on the basis of the pattern of the

 9     destruction it must have been that they were provided with material.  You

10     even add to that that due to the shortage it may have come from outside

11     the area.  And then you say, Well, if there was fuel in the houses it may

12     have made it easier for them.  Now let's just assume that the shortage

13     caused that no one could provide them with any feel and that limited fuel

14     was found in the houses, would that not undermine your conclusions?

15             THE WITNESS:  I don't believe so.  I would think that, yes, if

16     there were additional fuel or fuel discovered, that would have made the

17     job easier.  But, again, I don't think these individuals took much time,

18     in terms of exploring the interiors, for instance, to find the fuel first

19     that might have been left behind or hidden away somewhere.

20             JUDGE ORIE:  And this is what you discussed with the -- your

21     sources?

22             THE WITNESS:  Yes.

23             JUDGE ORIE:  You would discuss with them how much time they took

24     and whether there would be fuel avail in the houses.

25             THE WITNESS:  Well, these are conjectures about how things would

Page 10614

 1     have taken place.  Thinking it out in terms of, well, if they -- if

 2     ex-Croatian personnel decided to burn this village, how would they go

 3     about doing A, B, and C, with what materials and in what time-frame.

 4             JUDGE ORIE:  Please proceed, Mr. Du-Toit.

 5             MR. DU-TOIT:

 6        Q.   Mr. Hayden, can we move to paragraph 7 of your statement, please.

 7     It's page 3.

 8             Last sentence there, Mr. Hayden, if you can just and I quote in

 9     inverted -- :  "Although I had heard about an evacuation plan organised

10     by the Croatian -- Krajina Serb political administration prior to the

11     offensive" --

12             JUDGE ORIE:  Mr. Du-Toit, did the Chamber not instruct you to

13     take out paragraph 7 in its entirety.

14             MR. DU-TOIT:  Mr. President, the version that we filed last night

15     in fact exclude parts of paragraph 7 and that was sort of the middle

16     portion of -- of paragraph 7.  That's not --

17             JUDGE ORIE:  I'm not asking what you did.  I'm asking what our

18     instructions were according to -- and I'll just check that in yesterday's

19     transcript.

20                           [Prosecution counsel confer]

21             JUDGE ORIE:  "Then in the 2004 statement, paragraph 7, in its

22     entirety, is not admitted into evidence."  That is what I see on page

23     10578, line 12.

24             Mr. Tieger.

25             MR. TIEGER:  Yes, Your Honour, I'm sorry.  And I'm not --

Page 10615

 1             JUDGE ORIE:  And the redactions would be in accordance with

 2     admission.

 3             MR. TIEGER:  Yeah.  My -- I -- I can't speak specifically to what

 4     communications were made with Chambers but what we noted was and had

 5     intended certainly to communicate it to Chambers that in the -- the

 6     suggested redactions were clearly focussed on a particular type of

 7     evidence and for a particular reason so we -- and we noted that the

 8     redactions suggested for the other statement focussed exclusively on the

 9     Hjertnes aspect and left intact the reference to an independent source

10     and we thought the same should be done with that and we had intended of

11     course to communicate that both to the Chambers and to counsel fully,

12     except the fact that the Court's specific instruction was with respect to

13     the entire paragraph but we thought that's because the Court simply

14     didn't see that one sentence in the midst of that paragraph.

15             JUDGE ORIE:  Well --

16             MR. TIEGER:  I'm not suggesting that gave us carte blanche to go

17     forward with the question but I think we had anticipated that it would in

18     fact be resolved so that the redaction would be consistent with the

19     source of the concern, which was the Hjertnes material.

20             JUDGE ORIE:  Yes.  The Chamber decided on paragraph 7 because

21     there was no such Hjertnes in the paragraph that we thought it better to

22     take it out, which of course does not prevent you from eliciting any oral

23     evidence which is not directly related to Mr. Hjertnes but since we

24     specifically said that the whole of paragraph 7 would be taken out, I

25     think it would not be good to ask the witness to read from it.

Page 10616

 1             MR. DU-TOIT:  As the Court pleases.

 2             JUDGE ORIE:  Please proceed.

 3             MR. DU-TOIT:  Just a moment.

 4                           [Prosecution counsel confer]

 5             MR. DU-TOIT:

 6        Q.   Mr. Hayden, can I just ask you that you also talked to people

 7     about whether there was or was not an evacuation planned.  Is that

 8     correct?

 9        A.   Yes.

10        Q.   And if I can show you, please, Exhibit D137, please.

11             Mr. Hayden, this is a document that you were shown yesterday and

12     it appears to be a document signed by Mr. Milan Martic dealing with

13     evacuation of people on the 4th of August at 1645 hours.  Do you see

14     that?

15        A.   Yes.

16        Q.   Have you got any comment on this document?

17        A.   Well, myself and mission members did not see this particular

18     document at the time that we were there.  We did receive, in the course

19     of our various interviews, information that seemed to indicate that there

20     were -- had been some sort of statements regarding by -- by Krajina Serb

21     authorities regarding an evacuation, an organised evacuation.  Senior UN

22     personnel that we spoke with stated that Krajina Serb authorities had

23     approached UN personnel and requested fuel and vehicles to aid in an

24     evacuation, but in the course of other interviews, it seemed to us,

25     myself and the other mission members, that a -- an organised evacuation

Page 10617

 1     did not actually take place.  That may have been because the Serbian

 2     authorities did not have the resources or materials to do so, and the

 3     timing in which the Croatian military offensive took place may not have

 4     given time for an organised evacuation, and, thus, we were left with the

 5     impression -- I was left with the distinct impression that the evacuation

 6     had been disorganised in large measure and -- and the Serbs resident in

 7     Knin and the other villages we visited were -- had to fend for themselves

 8     and to flee in any way necessary.

 9             MR. DU-TOIT:  Thank you, Mr. President.  That is all I have for

10     this witness.

11             And thank you, Mr.  Registrar.

12             JUDGE ORIE:  Thank you, Mr. Du-Toit.

13             Mr. Kay, you will the first to cross-examine Mr. Hayden.

14             MR. KAY:  Yes, that's right.

15             JUDGE ORIE:  Mr. Hayden, you will now be cross-examined by

16     Mr. Kay.  Mr. Kay is counsel for Mr. Cermak.

17             Please proceed, Mr. Kay.

18                           Cross-examination by Mr. Kay:

19        Q.   I just want to follow up on your last answer, Mr. Hayden, because

20     you were shown a document D137.

21             MR. KAY:  Perhaps we could have it back on to the screen again.

22        Q.   Exhibit D137 was dated the 4th of August, 1995, and did you

23     appreciate who had signed that decision on that day?

24        A.   Milan Martic.

25        Q.   And who was he?

Page 10618

 1        A.   The so-called president of the Republika Serb Krajina.

 2        Q.   Now, this wasn't a document that you had seen in your

 3     fact-finding mission, is it?

 4        A.   No, it is not.

 5        Q.   But would I agree that it is an important document?

 6        A.   Certainly.

 7        Q.   And in the light of discovering new information, such as this, do

 8     you think you ought to reconsider the statement you made concerning the

 9     evacuation?

10        A.   No.

11        Q.   Why not?

12        A.   Well, for several reasons.  One, we did interview a number of

13     displaced persons from the area in the UN compound who stated that there

14     had been no resources available for them to flee or evacuate.

15        Q.   Can I just stop you there and we'll take it section by section.

16        A.   Certainly.

17        Q.   Those are of course the persons who remained?

18        A.   That is true.

19        Q.   And we know that this is some 800 or 900 people that remained in

20     the UN compound.  How many people went missing, left the area?

21        A.   I don't know the exact number.

22        Q.   Perhaps you -- of course you went on a fact-finding mission?  I

23     presume this is something that you would have considered.

24        A.   Well, I doubt at that time that the Croatian authorities or even

25     the UN personnel in the region had a clear appreciation of the number of

Page 10619

 1     displaced persons who had fled the area.

 2        Q.   Well, didn't you consider roughly how many people had left the

 3     area?  After all, you were looking at the village, you were touring, you

 4     were making judgements as to whether there had been an evacuation plan or

 5     not, whether it was organised or not.  Didn't you consider the numerical

 6     issues?

 7        A.   Certainly.  But, again, we had no knowledge of the total

 8     population of the villages or the town of Knin that we visited.  There

 9     were no documents that could have been provided, for instance, by Serb

10     authorities regarding a census of the number of individuals who lived in

11     these villages.

12        Q.   You didn't do any research on this matter [Microphone not

13     activated]?

14             THE INTERPRETER:  Microphone, please for Mr. Kay.

15             MR. KAY:

16        Q.   You didn't do any research on this matter?

17        A.   Well, not specifically as to determine the total population of X,

18     Y, and Z village.

19        Q.   I thought this was a fact-finding mission?

20        A.   Yes.  It wasn't a census.

21        Q.   No, no, but it was dealing with clear issues and you were making

22     judgements and writing a report about it.  Do you consider that on this

23     matter you had sufficiently informed yourself?

24        A.   I believe so.

25        Q.   If 150.000 people had left the area and you saw a collection of

Page 10620

 1     800, would that indicate a different set of circumstances to you?

 2        A.   Such as?

 3        Q.   Well, that there was a plan for people to evacuate the area.

 4        A.   Not necessarily, no.  I do recall in the preparation to the

 5     fact-finding mission seeing electronic -- excuse me, electronic media,

 6     television images of people fleeing into Bosnia from the Krajina region,

 7     and these people were on foot, on horseback, in trailers being pulled by

 8     tractors, but there certainly were no images of buses, for instance, or

 9     Serbian Krajina military trucks transporting people from the region into

10     Bosnia.

11        Q.   Why would you have to go in some form of public transport for it

12     to be part of an organised evacuation plan?

13        A.   Well, if a political authority is going to issue an evacuation

14     plan, and in particular reference to this document you referred to, it's

15     decided the evacuation shall be carried out in a planned manner according

16     to prepared plans along routes, that would seem to indicate that not only

17     is there a so-called plan with a map, but there would be additional

18     resources, such as vehicles, to execute that plan.

19        Q.   Where does it say that in the order?

20        A.   It does not, but one can read or infer that.

21        Q.   Thank you very much.  I'm going to ask you questions now about

22     your mission.

23             You went to the Knin area on the 17th and you left on the 19th.

24     Isn't that right?

25        A.   Correct.

Page 10621

 1        Q.   You called in your statement of course the Republic of Srpska

 2     Krajina, which is one place it wasn't.  Did you realize it was part of

 3     Croatia when you visited it?

 4        A.   Yes, I did.

 5        Q.   Why did you call it Republic of Srpska Krajina?

 6        A.   Well, because the political authorities who claimed to exercise

 7     authority was exercising their authority in the name of that political

 8     unit.

 9        Q.   Of Republic of Srpska Krajina?

10        A.   Yes.

11        Q.   Very well.  What time did you arrive in Knin on the 17th?

12        A.   In the early morning, around 9.00.

13        Q.   And where did you go when you arrived?

14        A.   Our first stop was at the UN compound.

15        Q.   And how long did you remain in the UN compound for?

16        A.   For a few hours, approximately.  We were there, we attended a

17     press conference and then had a variety of meetings with UN -- senior UN

18     personnel.

19        Q.   After those meetings at the UN compound where did you go?

20        A.   We then proceeded to try to make contact with Croatian

21     authorities in order to set up interviews.

22        Q.   And what else?

23        A.   And we began to move about the town of Knin, to visually see what

24     had taken place.  In the course of that, we would speak to, if we could,

25     people who we came in contact with.

Page 10622

 1        Q.   And were you staying in Knin?

 2        A.   No.

 3        Q.   Where were you staying?

 4        A.   We were staying in Split.

 5        Q.   What time did you leave -- Knin to go to Split?

 6        A.   We would leave approximately 5.00.

 7        Q.   Right.  So you spent the afternoon in Knin walking about?

 8        A.   No, not just walking about, but ...

 9        Q.   What else?

10        A.   Trying to set up other interviews.

11        Q.   Right.

12        A.   Moving about in Knin and in the outlying areas that we could

13     visit in our vehicle.

14        Q.   On that day, you went to outlying areas?

15        A.   Yes.  It is not a very big region so it's -- you can quickly move

16     from the town of Knin to some of the outlying villages.

17        Q.   Which outlying villages did you go to that day?

18        A.   I don't recall which ones I went to specifically that day.

19        Q.   You said you lost your notes about this visit in a flood.

20        A.   Yes, the notes were destroyed in a flood, unfortunately.

21        Q.   Did any one else have notes of this visit?

22        A.   Yes.  My other colleagues had their own personal notes.

23        Q.   And you could have asked for those notes?

24        A.   From those persons?  It is it not my responsibility to ask for

25     their notes.

Page 10623

 1        Q.   When you made your report did you just look at your own notes

 2     then?

 3        A.   No, not at all.  Each and every day that the mission members were

 4     working and we would return to our hotel in Split and spent several hours

 5     going through our notes, talking about what we had seen, discussing the

 6     implications of it and then making plans for the following day.

 7             In the course of drafting the report I relied upon my notes and

 8     my colleague's notes.

 9        Q.   Can you tell me anything more specific about the -- the 17th,

10     where you went, what you saw?

11        A.   Not specifically, other than what is detailed in the report.  We

12     moved about and we saw damage done to the buildings.  We noted that the

13     civilian population was nowhere to be found, other than those few hundred

14     people who had taken refuge inside the UN compound.  We noted that the

15     area was under the control of Croatian military and police authorities.

16        Q.   On the 18th, where did you go?  What time -- did you go to Knin,

17     first of all?

18        A.   Yes.

19        Q.   At what time did you arrive?

20        A.   Again, approximately 9.00 in the morning.

21        Q.   And what did you do then on the 18th, when you arrived?

22        A.   We continued with our work.  On that day, we met with the

23     displaced persons in the UN compound.

24        Q.   So you went back to the compound?

25        A.   That is correct, and we interviewed -- we spent several hours

Page 10624

 1     interviewing the displaced persons who were willing to come forward and

 2     speak with us --

 3        Q.   Yeah.

 4        A.   -- about their experiences.

 5        Q.   And one of those included Mr. Pupovac.  Is that right?

 6        A.   Yes.

 7        Q.   After speaking to the displaced persons in the camp what did you

 8     do next?

 9        A.   We had other meetings and then we went out and about again

10     through Knin and moved to other villages that we hadn't seen the day

11     before.

12        Q.   Just stopping you there with the meetings.  What meetings did you

13     have on the 18th?

14        A.   I don't recall specifically which meetings.  In a context such as

15     that, it's difficult to set up meetings.  You have you to, you know, try

16     to chase people down, and they may not be where they're at.  So it does

17     take a bit of time to do that.

18        Q.   So what time did you leave Knin to look at other areas around

19     Knin?

20        A.   I couldn't say exactly.  We did have a specific time-frame that

21     we could be out and about in that area, given the -- the regulations of

22     the Croatian authorities at the time.  You know, they were controlling

23     the movements of civilians, so we would need to be on the road and back

24     to Split on or before 5.00.

25        Q.   What regulations from the Croatian authorities were regulating

Page 10625

 1     your movements?

 2        A.   Well, we were under the impression that there was a curfew at

 3     night for civilians.

 4        Q.   Who told you that?

 5        A.   We had been told that by police at a check-point.

 6        Q.   What regulations were there preventing you going anywhere?

 7        A.   Please, again?

 8        Q.   What regulations were preventing you going anywhere you wanted.

 9        A.   Oh, well, there weren't any specific regulations preventing us

10     going anywhere.  We asked that question.  The authorities said that

11     during the daylight hours we could move about, and they did recommend

12     that we not go in certain places because they could not guarantee our

13     security.

14        Q.   In your report and in your statement, you refer to meeting

15     Mr. Pasic on the 18th.

16        A.   Let me just check my --

17        Q.   You can take it from me.  It's not something I'd make up.

18        A.   Yes, right, we met with Petar Pasic, the Croatian political

19     commissioner.

20        Q.   And at what time was that?

21        A.   It was in the afternoon.  I don't know exactly when that time

22     was.

23        Q.   And for how long did you meet him?

24        A.   Approximately 45 minutes.

25        Q.   And where did you meet him?

Page 10626

 1        A.   In his office.  What he was using as his office.

 2        Q.   So if that was in the afternoon, you weren't travelling very much

 3     around the area, if you'd been in meetings in the morning at the UN

 4     compound.

 5        A.   As I said earlier, the area is not that large, so if we had set

 6     up a time for -- a specific time for this meeting, we may have had time

 7     to also move about and possibly go to another village and return for that

 8     meeting.

 9        Q.   Did you do your visiting on the way back from Knin to Split?

10        A.   What do you mean by that?

11        Q.   Did you do your visiting of locations on the way back from Knin

12     to Split.

13        A.   Well, there were certain spots on the way, yes, that we could

14     stop.  In fact, there were -- one day when we were returning to Split

15     from Knin, there was a house that was in -- in the process of being

16     burned which hadn't been in the process of being burned when we passed

17     that way in the morning.  So our -- so we stopped and we took

18     photographs.

19        Q.   Did you have any other meetings on that afternoon of the 18th?

20        A.   I believe we -- we had -- we had some meetings with -- there was

21     a UN human rights officer that we met with for a period of time, both

22     before and after the interviews were conducted with -- with the displaced

23     persons in the UN compound.

24             JUDGE ORIE:  Mr. Kay, if would you not mind, you talked about

25     taking photographs.  Is this photographic material made available to --

Page 10627

 1             THE WITNESS:  The photographs and other documents aside from my

 2     notes would be in the archives of the International Helsinki Federation

 3     for Human Rights in Vienna, Austria.

 4             Unfortunately, the IHF is now closed due to the criminal

 5     activities of its accountant who over a period of several years was

 6     defrauding the IHF.

 7             JUDGE ORIE:  Yes, but he didn't take the photographs, did he?

 8             THE WITNESS:  No.  As I said --

 9             JUDGE ORIE:  No, no.  I see that it would be difficult to get

10     access.

11             THE WITNESS:  Yes, it would be difficult to get access to

12     photographs and documents.

13             JUDGE ORIE:  Do you remember whether dates and times were --

14     which is sometimes possible, whether dates and times were included in the

15     photographs?

16             THE WITNESS:  Were the images time stamped, do you mean?

17             JUDGE ORIE:  Yes.

18             THE WITNESS:  Yes, the images were time stamped.

19             JUDGE ORIE:  So if we would have a look at the photographs we

20     would know when they were taking if at least the clock in the camera

21     would be --

22             THE WITNESS:  I believe so, yes, yes.  It's been several years

23     since I have seen those photographs, over 13 so ...

24             JUDGE ORIE:  Have you any recollection on the number of

25     photographs you may have taken during these two days?

Page 10628

 1             THE WITNESS:  No, I do not, sorry.

 2             JUDGE ORIE:  If not a rough estimate whether 20, whether 200,

 3     whether ...

 4             THE WITNESS:  Well, we -- we took many photographs, I took many

 5     photographs, at least several rolls of film.  My colleagues also took

 6     photographs and so I can't give you an exact number, I'm sorry.

 7             JUDGE ORIE:  That was the time when you still needed rolls to

 8     make photographs.

 9             It may be clear to the parties why I'm asking these questions

10     because it might give an additional source of factual information,

11     whereas we are struggling with the factual basis for what sometimes seem

12     to be inferences, conclusions, and opinions.

13             Please proceed.

14             MR. KAY:  Thank you, Your Honour.

15        Q.   Would it the correct that the first Croatian personnel you

16     interviewed was Mr. Pasic?

17        A.   Yes.  Senior personnel, yes.

18        Q.   Did you interview any other Croatian personnel --

19        A.   Well, in the --

20        Q.    -- on that day on the 18th?  I'm just dealing with the 18th.

21        A.   The 18th.  I would have to refer to the report.  In one village

22     that we visited we encountered a group of Croatian soldiers who we spoke

23     with.

24        Q.   Yeah.

25        A.   And they gave us some information, basic information as to what

Page 10629

 1     they were doing and sort of the lay of the landscape and then they

 2     advised us just to be careful and that was the extent of that.

 3        Q.   Yeah.  I'm dealing with this on the basis of Croatian authorities

 4     which is the phrase you use in your report and your -- your statement --

 5        A.   Right.

 6        Q.   -- rather than conversations with people --

 7        A.   Right.

 8        Q.   -- on the ground.  So people who were in a position to give an

 9     explanation, if they could, Petar Pasic was the first.  Is that right?

10        A.   That is correct.

11        Q.   And did you speak to any other person like him who was

12     interviewed on that day?

13        A.   On the 18th, no.

14        Q.   He told you that the destruction was being carried out by

15     civilians taking revenge.

16        A.   That's correct.

17        Q.   On Mr. Du-Toit's numbering, that's number 8 of the report.

18     Number 7 in the bottom right-hand corner.

19             And this is an aspect in your report that you don't deal with

20     in -- in any detail.  About the civilians taking revenge.

21        A.   No, we didn't.  In the course of our movements, we didn't

22     encounter any civilians.

23        Q.   In the course of your movements, you didn't encounter any

24     soldiers looting and burning, as you said.  But this was a matter that

25     was brought to your attention but not something that you considered

Page 10630

 1     further?

 2        A.   Well, we considered it, but we ruled it out as, I think a

 3     distinct possibility, given that the only people we encountered were

 4     Croatian military or police or Croatian civilian authorities, and at that

 5     time, we understood that Croatian civilians, people who had let's say

 6     formerly lived in these areas were not being allowed in just yet.

 7        Q.   I'm sorry, I don't understand your answer because you said:

 8     "Well, we considered it but we ruled it out as I think a distinct

 9     possibility."

10        A.   Correct.  We ruled that out, that civilians were roaming around,

11     engaged in revenge burnings.

12        Q.   Forgive me for sounding a bit impertinent.  But who are you to

13     rule out anything on this?  You were on a fact-finding mission.

14        A.   Well, we had to exercise our judgment based on our professional

15     experience and the focus and intent of the mission.  We discussed this as

16     a possibility, given that certainly revenge killings or revenge burnings

17     were -- had taken place throughout the areas of the former Yugoslavia

18     that were areas of conflict, so we discussed that.  But because we

19     discussed it doesn't necessarily mean we agreed that it should be a

20     primary focus or that we would include it as an element of our report.

21        Q.   Well, I'm just referring to your statement, which you've put in

22     in evidence.  I'm looking at paragraph 9, page 4, and I'm looking at the

23     sentence there in the last -- the last sentence of that paragraph.

24             JUDGE ORIE:  Mr. Kay, if you would not mind, I'd like to seek

25     clarification of the last answer, just for me to understand.

Page 10631

 1             Do I understand you said:  "We discussed this as a possibility it

 2     being revenge burnings or killings also in this area at that time."  And

 3     then you said:  "But because we discussed it doesn't necessarily mean

 4     that we agreed that it should be a primary focus or that we would include

 5     it as an element of our report."

 6             Do I have to understand here that what you say, that we consider

 7     that this may have been the case but we didn't focus on that and we did

 8     not decide that it would be part of our report?

 9             THE WITNESS:  Right.  We considered the possibility of civilians.

10     But because of the one, for instance, the road traffic between Split and

11     Knin, which is the primary way to get there, there weren't civilians on

12     the road travelling back and forth and that the very few civilians that

13     we did see in -- in the area seemed to indicate to us that the burning

14     and looting probably was not being undertaken by civilians, Croatians who

15     may have previous lived there or were just going there for an afternoon

16     of fun.

17             JUDGE ORIE:  Yes.  What you're actually saying is that since we

18     considered it not likely that this was the case, we did not pay a lot of

19     attention to first explore that possibility, isn't it?

20             THE WITNESS:  No.  That is correct.

21             JUDGE ORIE:  Yes.  Now, I ask you this question in relation to

22     one of the questions that were put to you earlier, which was the question

23     by Mr. Kay whether you researched, and let me take you back.

24             You were asked about how many people had left, and then Mr. Kay

25     asked you whether you did any research on -- on how many people had left.

Page 10632

 1     He mentioned 150.000 compared to 800, as you may remember, and he said:

 2     "You didn't do any research on this matter."

 3             And then you said:  "Not specifically to determine the total

 4     population of X, Y, and Z village."

 5             Now what unspecific research, so apparently not to the level of

 6     detail that you mentioned, did you do on the population?

 7             THE WITNESS:  You're asking me what research we did?

 8             JUDGE ORIE:  Yes.

 9             THE WITNESS:  With respect to the population in the area?

10             Well, there was very little information available for one thing.

11     We relied at that time on information available through the media,

12     focussing specifically on the events within this time-frame that we were

13     looking at.  There was information that we received from UN High

14     Commission for Refugees operating in the area or the UN human rights --

15             JUDGE ORIE:  What information did you receive from them?

16             THE WITNESS:  Information regarding let's say that there are

17     large numbers of displaced persons who are moving and require assistant,

18     et cetera, et cetera, moving from Croatia into Bosnia.  But there were no

19     real exact numbers and I don't recall any specific numbers with respect

20     to either the population prior to Operation Storm, nor, at that

21     particular time when we were there, did we receive any specific numbers

22     regarding the population that was there or people who had left.

23             JUDGE ORIE:  Yes.  I'm asking these questions for the following

24     reason.  The reason that you more or less, although not formally excluded

25     for the possibility that civilians were looting is because as you said

Page 10633

 1     people had not returned, which of course leaves open how many people

 2     would have stayed in the area which did not have to return and were still

 3     civilians.

 4             Do you have any knowledge about that?

 5             THE WITNESS:  There were in fact -- there was one incident, I

 6     recall, that there was a --

 7             JUDGE ORIE:  No, no, I'm asking not about incidents.  I'm asking

 8     you what your knowledge was about Croatians which had continued to

 9     live --

10             THE WITNESS:  Well, as far as we knew there were no Croatians who

11     had continued -- you know, if we're talking about ethnic Croats versus

12     ethnic Serbs --

13             JUDGE ORIE:  Yes.

14             THE WITNESS:  -- we weren't aware of ethnic Croats who decided to

15     stick around.  As I said --

16             JUDGE ORIE:  Which means that all ethnic Croats according to your

17     information had left the area, well, let's say, somewhere between 1991

18     and 1995.

19             THE WITNESS:  As far as we understood I mean, many ethnic Croats

20     had been forced out of that region or left.

21             JUDGE ORIE:  Yes.  I'm not talking about whether many left or

22     not.  But I'm talking about whether and if so how many had remained.

23             THE WITNESS:  I can't answer that question.  It wasn't an area of

24     my focus for instance to understand how many ethnic Croats remained in

25     the Krajina region.

Page 10634

 1             JUDGE ORIE:  Yes.  Nevertheless, you draw far-reaching

 2     conclusions that civilians, Croat civilians out of revenge were not

 3     involved in looting because they could not have returned to the area.

 4             Now, that's the reason why I'm talking you to these details of

 5     the population because you -- if you do not know whether any remained and

 6     how many remained, it seems that your reasoning is registrar flawed,

 7     isn't it, because they could not have been involved because they had no

 8     opportunity to return is a flawed reasoning if there may have been

 9     Croatian civilians left in the area.

10             THE WITNESS:  Well, we didn't see too many.

11             JUDGE ORIE:  I'm not asking what you saw.  I'm asking whether you

12     agree with me that this is a considerable flaw in the reasoning.

13             THE WITNESS:  No, I do not agree.

14             JUDGE ORIE:  Please proceed, Mr. Kay.

15             Yes, I'm looking at the clock.  You're looking at the clock.

16             We will have a break, and we'll resume at 11.00.

17                           --- Recess taken at 10.32 a.m.

18                           --- On resuming at 11.06 a.m.

19             JUDGE ORIE:  Mr. Kay, you may proceed.

20             MR. KAY:  Thank you, Your Honour.

21             If we could go back to Exhibit P987, the statement made in

22     March 2004, and go to page 4 of that statement, which is the remainder of

23     paragraph 9.

24        Q.   And it's the last sentence of that first paragraph of the page.

25     "Therefore, it is my view that Croatian civilians or combatants dressed

Page 10635

 1     as civilians could have moved in following the primary phase of the

 2     offensive to undertake burning and looting operations in the area."

 3             Seeing that statement there in your statement, Mr. Hayden, in

 4     your mind, civilians were responsible, in part, for burning and looting

 5     operations in the area.  Isn't that right?

 6        A.   No.  The word I used is "could have," which means that it is open

 7     to continued investigation or corroboration based on new information, so

 8     it's not an assertion that Croatian civilians did do it but could have.

 9        Q.   So, therefore, if that is a possibility, it is also a -- an

10     aspect worthy of investigation by you and reporting by you in your

11     fact-finding report.  Isn't that right?

12        A.   It could have been but the fact-finding report had a specific

13     scope and a specific purpose.  Time-wise we did not have the luxury to

14     investigate many of the allegations or information that we received

15     during the fact-finding mission, and we left that to the Croatian

16     Helsinki Committee which continued after we left, their activities

17     throughout the regions of Croatia.

18        Q.   Just looking at that sentence again, it says:  "Croatian

19     civilians or combatants dressed as civilians ..."

20             What did you mean by that?

21        A.   Well, that would be the -- the old ploy of hiding your identity,

22     military personnel dressing as civilians in order to do something that

23     maybe they couldn't do if they were dressed in their military uniforms

24     with their insignia clearly attached.

25        Q.   So civilians dressed as combatants would be exactly the same

Page 10636

 1     ploy?

 2        A.   Yeah, it could have.  You could insert that in there as a

 3     possibility.

 4        Q.   Were you aware that there were a substantial number of reports at

 5     this time of civilians being dressed as combatants?

 6        A.   No, I was not aware of that.

 7        Q.   In writing "combatants dressed as civilians," do you think you

 8     made an error in your terminology?

 9        A.   No.

10        Q.   Could you assist me, then, as to where you found information of

11     combatants dressed as civilians?

12        A.   Well, there were two occasions that were relayed to us by UN

13     personnel, a UN civilian police officer and a UN military observer, who

14     said that they had seen Croatian military personnel engaged in the

15     process of burning or destroying civilian property after the offensive

16     had secured the area.

17        Q.   My question concerned combatants dressed as civilians.  That was

18     the question, and I'm interested in any information you could give the

19     Court on that.

20        A.   Well, that's a speculation on our part, based on what we

21     understood to be the limitations placed on civilian movement in the area

22     by the Croatian authorities.

23             JUDGE ORIE:  May I just seek to understand.

24             Are you telling us that if someone looked like a civilian, he

25     must have been a military person, because civilians were supposed not to

Page 10637

 1     be there?

 2             THE WITNESS:  No.  But we didn't see many civilians in the area

 3     at the time that we were there, and the civilians that we did see and we

 4     had the opportunity to approach, identified themselves as authorities.  I

 5     make reference to some civilians who were holding maps and we approached

 6     them and asked them what they were doing and who they were and they

 7     identified themselves as Croatian authorities.

 8             JUDGE ORIE:  Yes --

 9             THE WITNESS:  And we understood that civilians were not being

10     allowed in yet into the region because of security reasons and it was

11     still a war zone, and as we understood it, both from UN personnel we

12     interviewed and from the Croatian authorities we interviewed, that

13     civilians weren't being allowed to return as of yet until --

14             JUDGE ORIE:  Yes.  Now -- now you told us that you saw civilians

15     with maps and you considered them authorities, and now you're explaining

16     to us that civilians were, according to your information, were not

17     allowed to enter the area.

18             Did you see any people in civilian attire which were not using

19     maps?

20             THE WITNESS:  Not that I can recall, no.

21             JUDGE ORIE:  So everyone in civilian attire was -- having maps

22     and --

23             THE WITNESS:  No.  I'm --

24             JUDGE ORIE:  -- considered to be an authority?

25             THE WITNESS:  No.  I'm saying that there were very few civilians

Page 10638

 1     dressed in civilian clothes that we encountered.  And in fact in all the

 2     villages outside of Knin that we visited, which are listed in this

 3     report, the only one where we encountered civilians were these

 4     individuals who were holding maps and when we approached them, they

 5     identified themselves as civilian authorities.

 6             In other village there is was no one to be seen at all, other

 7     than check-points along the road or in the instance when we were in one

 8     village and we were approached by a squad of Croatian soldiers.

 9             JUDGE ORIE:  Yes.  Now after this explanation, could you come

10     back to the question that was put to you by Mr. Kay, that there were

11     combatants dressed as civilians, because from your explanation until now,

12     I -- from what you observed, apparently you say these were authorities,

13     civilian authorities, I take it, or would you except the persons dressed

14     as civilians having maps nevertheless being military or combatants or ...

15             THE WITNESS:  I'm not following the question, Your Honour.

16             JUDGE ORIE:  Then I will not insist on an answer.

17             Please proceed.

18             MR. KAY:  Thank you, Your Honour.

19        Q.   Let us just move to paragraph 11, where you refer to a VW

20     transporter and two men in civilian dress coming around the left side of

21     the house.

22             Civilians or combatants, in your understanding, Mr. Hayden?

23        A.   Well, it's hard to tell because one of them was armed.  And as we

24     know, the conflicts in the former Yugoslavia used a lot of irregular

25     unit, paramilitaries, who may or may not have had a uniform or operated

Page 10639

 1     solely in civilian clothes.  I had no clue.  I certainly wasn't going to

 2     approach that individual with the weapon.

 3        Q.   Was that something you -- you knew about, that the Croatian

 4     forces had paramilitary units when they took part in Operation Oluja?

 5        A.   I wasn't -- I would say no, I didn't know whether the Croatian

 6     military was using paramilitary units at the time.  I didn't see any

 7     information regarding the disposition of forces prior to Operation Storm

 8     or, let's say, the disposition of forces inside of the Krajina other than

 9     those that were referred to such as the 4th and 7th Brigades and the 6th

10     Reserve Brigade.

11             Now a reserve unit usually is comprised of civilians who, during

12     peacetime are engaged in civilian activities and they may be called up to

13     serve in a military capacity.  And so maybe these were reserve soldiers

14     who hadn't had the time or opportunity yet to put on a uniform or maybe

15     they were told not to wear a uniform.  I don't know.

16        Q.   Was it your view they went around the highways and byways

17     changing their clothes from civilian clothes to uniforms?

18        A.   I have no idea whether they did that or not.  I wasn't privy to

19     when and how they changed their clothes and what they put on.

20        Q.   Let's turn to paragraph 14.  The second sentence:  "However, I do

21     recall seeing several civilian vehicles loaded with stolen goods being

22     driven by uniformed men."

23             So, taking that, "civilian vehicle," could be a civilian dressed

24     as a combatant.

25        A.   It could be.  But the vehicle that I was referring to here was

Page 10640

 1     also loaded with stolen goods.  The licence plates were removed, and the

 2     individual with the uniform had identifiable markings although I couldn't

 3     identify what they were as he passed by and I recall that he passed by a

 4     group of other soldiers who were standing in the street and they all

 5     waved at each other and sort of cheered.  It was -- there was an

 6     atmosphere of, let's say, you know, we just won a football match.

 7             So I would assume that they may have known each other or have

 8     been possibly from the same unit but whether he was a civilian dressed as

 9     a combatant, I couldn't specifically answer.  Again, it could be a

10     possibility.

11        Q.   If I may just look at your answer, you refer to this being as

12     single occasion but the statement says "several civilian vehicles."

13             So several civilian vehicles is wrong?

14        A.   No.  When I made this statement in paragraph 14 I'm referring to,

15     yes, during the course of our time there we saw several civilian vehicles

16     being driven by persons in military uniform, and I just relayed in that

17     one anecdote my experience of observing one civilian vehicle with a

18     person dressed in military attire.

19        Q.   And how do you know the goods were stolen?

20        A.   Well, he didn't look like he had just come back from the grocery

21     store or the local Home Depot and it seemed to be stuffed full with a odd

22     variety of things.

23        Q.   What if he was a refugee who had been dispossessed in 1991,

24     returning to the area to equip the home that he had lost?

25        A.   As I understood it, again, those individual Croats who had been

Page 10641

 1     displaced from 1991 were not being allowed back in yet by the Croatian

 2     authorities.

 3        Q.   If you're wrong about that, that there weren't civilians entering

 4     this area at this time, would that cause you to reconsider your answers

 5     on that matter?

 6        A.   No, not necessarily.  You know, there are many ways to drive into

 7     the -- into the area besides the main road that we stayed on, and

 8     certainly we weren't everywhere at every time observing every place.

 9             So, yes, there is an possibility that civilians could have been

10     in some of these places, but I -- I do note, as earlier, that when we

11     were driving around outside of Knin in the villages outlying that we did

12     not encounter civilians who seemed to be returning to their homes.  As I

13     stated earlier, in the villages that we visited, they were completely

14     depopulated, and we did not encounter anyone trying to set up their

15     household.

16        Q.   Well, let us go further into paragraph 14 then, shall we,

17     second-to-last sentence:  "We speculate that the vehicles had probably

18     been abandoned by Krajina Serbs during the disorganised evacuation and

19     then appropriated and refueled by Croatian military, police, or

20     civilians."

21             Rather contradicts what you were saying that there were no

22     civilians in the area, doesn't it?

23        A.   Well, again, it -- it doesn't necessarily contradict.  It allows

24     for the possibility of that to be the case, because, as I said we weren't

25     everywhere at every place.  Let's say we saw one vehicle driven by one

Page 10642

 1     civilian or a person dressed in civilian clothes, one does not constitute

 2     many civilians returning to the area.

 3        Q.   It says civilians; it's plural?

 4        A.   Okay, it's two.  They were in the same car together.  It still

 5     doesn't infer that there were civilians about.  As I said we did not

 6     encounter in our movements around Knin or in the outlying villages any

 7     number of civilians just moving about, returning to their homes.

 8        Q.   Did you know if the train was running from Split into Knin?

 9        A.   No, I did not.

10        Q.   I want to turn now to paragraph 15 on page 5, so over the page,

11     and I'm looking at the last two lines of paragraph 15.  And it's this:

12     "The fact that the statements by the police that they tried to stop the

13     burning were inconsistent with my observations."

14             Well, first of all, what statements by the police that they were

15     trying to stop the burning?

16        A.   Well, in the -- in the report, in paragraph 5.3 interview with

17     the Croatian civilian police chief in Knin an officer Jukic.

18        Q.   Yeah, yes.

19        A.   The last sentence, "When we asked the police chief if he knew

20     about the five arson suspects the military were surveilling, he replied

21     that he heard nothing about them," and --

22        Q.   Excuse me, how is that relevant to that remark the statements by

23     the police that they tried to stop the burning?

24        A.   Not, not that they tried to stop the burning.  It's that they

25     made no efforts.

Page 10643

 1        Q.   No, your statement says:  "The statements by the police that they

 2     tried to stop the burning," and I'm asking you who said that and when and

 3     what were the circumstances?

 4        A.   And you're still referring to paragraph 15?

 5        Q.   Yes.

 6        A.   Yes.  So it says here:  "In conversations with the UN personnel

 7     who had witnessed such incidents and having spoken with the Croatian

 8     police about their efforts to stop the burning and looting, it appeared

 9     to me that no significant effort was being made."

10             So, again, I'm speaking not only about myself but my mission

11     members also, in the course of the work that we did.

12        Q.   You said it appears to you in conversations, it appears to you

13     that no significant effort was being made to intervene, stop,

14     investigate, or arrest persons involved in committing these crimes.  And

15     I want to know, because it seems that you were directly advised of this.

16        A.   Want to know what?

17        Q.   Who told that you the police, Croatian police, were attempting to

18     stop crime.

19        A.   No, there wasn't -- no -- no police officer or, for instance,

20     the -- the chief of police -- excuse me, the police chief and Officer

21     Jukic made any indication that they were doing anything about looting.

22     They referred to it as a military matter.

23        Q.   What about burning, because that was the --

24        A.   Burning, yes, burning or looting yes.

25        Q.   Part of the sentence.

Page 10644

 1        A.   Right.  Burning and looting.

 2        Q.   Yes, and so --

 3        A.   And so I understood that the police were deferring to the

 4     military since the region was under military control.

 5        Q.   Where did you get that from?

 6        A.   Well, speaking to the military officers we met.

 7        Q.   I have to say this, are you just making this up as you go along?

 8        A.   No.  Have you ever been in a war zone?

 9        Q.   I'm not here to answer questions.  You're the one who is being

10     questioned by me.

11        A.   Right, right.

12        Q.   And you have answered that and said you haven't made it up.  Why

13     isn't it in your statement?

14        A.   Well, my statement was an elaboration or expansion on certain

15     questions that emerged when the -- the Tribunal was looking at this

16     report.  Not everything that we contained in our notes or looked at was

17     incorporated into the report, and this 2004 statement -- yes, I might not

18     have focussed on that.  But I have stated that the area was under control

19     by the military, and in talking with the political commissioner, Petar

20     Pasic, Mr. Pasic certainly left us with the -- the impression that, you

21     know, the civilian authorities weren't in control of the situation.

22        Q.   Do you think he was in charge of the police?

23        A.   Really, there was no clear chain of command, so ...

24        Q.   Did you know what his job was?

25        A.   Well, from what I understood, he said he was the civilian

Page 10645

 1     political commissioner and he's there to handle the political side of

 2     whatever affairs arose.

 3        Q.   So what he had to say might have been important?

 4        A.   Yes.  And he made a variety of different statements.

 5        Q.   But you just chose to reject what he said?

 6        A.   Did I?

 7        Q.   Yes.

 8        A.   How so?

 9        Q.   You didn't follow up what he said about civilians committing

10     crimes.  You made no research, you didn't see whether he was right or

11     wrong.

12        A.   Yes, I think we did, because we -- you know, we posed these

13     questions again.  You know, we can do nothing -- he said, I can do

14     nothing.

15             Let's see ... General Cermak said that well, you know, we've got

16     five persons under surveillance and he left it at that.  Seemed to

17     indicate that they weren't expending much effort in doing anything.

18             UN civilian authorities either military or the UN authorities,

19     whether military observers or civilian, you know, they didn't think in

20     the course of conversations that I had with them or my mission members

21     had with them that there was any significant effort being made in that

22     regard.

23        Q.   You see, in your trip, you didn't see any looting or burning by

24     the Croatian military or the police yourself, did you?

25        A.   That is correct.

Page 10646

 1        Q.   So even given that premise, when you're on a fact-finding mission

 2     for three days, didn't you think that that was something worthy of

 3     investigation?

 4        A.   Oh, of course.

 5        Q.   Did you?

 6        A.   Investigate it?

 7        Q.   Yes.

 8        A.   Well, as I stated, we were there from the 17th to the 19th.  My

 9     colleague from the IHF offices in Vienna returned to Vienna and then the

10     continued field work was carried on by the Croatian Helsinki Committee so

11     follow-up investigations into these allegations, and we drafted the

12     report with what we understood to be the appropriate qualifying language.

13     I mean, we weren't preparing this for -- as a legal document.  This was a

14     document that we were directing at the OSCE in order to urge the OSCE,

15     through its various mechanisms, to place pressure on the Croatian

16     government to address these issues.

17             So of course many of the things that are contained in this report

18     do require continued investigation, and one can't come to a final

19     concrete conclusion in a matter of three days in an insecure war zone in

20     which your movement is limited and your access to information is

21     primarily through oral interviews with the people that you're able to

22     meet there on the ground so --

23        Q.   I'm sorry.  I anticipate the translation is going on, but ...

24             JUDGE ORIE:  I wasn't following the French but they have

25     finished.

Page 10647

 1             MR. KAY:  Right.

 2             THE WITNESS:  I'll slow down.  Sorry.

 3             MR. KAY:

 4        Q.   So are you saying your document, then, was a political document

 5     to encourage those people within the OSCE to -- to take a part or play a

 6     role?

 7        A.   Correct.  Can I add to that question -- statement?

 8        Q.   Of course.

 9        A.   Just to clarify that the IHF is a non-governmental organisation

10     whose primary purpose is to serve as the Human Rights watch dog of the

11     OSCE and its participating member states of which Croatia was a member

12     state, and in being a member, Croatia had obligated itself to abide by

13     specific documents within the framework of the OSCE as well as its

14     international legal obligations as signatories to the Geneva Conventions

15     or the other human rights documents.

16             So given that our primary purpose was to serve as the human

17     rights watch dog of the OSCE we work very closely with the OSCE and its

18     participating states to address issues of concern and so when we prepare

19     a report such as this, we try to do as best we can under the

20     circumstances and then work further to continue addressing these issues

21     in consultation with other colleagues.

22        Q.   And you would agree that Croatia would be entitled to have a

23     properly researched report, if it's a member of that organisation.

24        A.   It's not entitled.  The IHF is not obligated to give anything to

25     the Croatian government.

Page 10648

 1        Q.   Thank you.  Can we just go to paragraph 18, and it's the second

 2     sentence there, where you -- we've already heard your explanation about

 3     systematic and coordinated but the sense:  "First, the extent of the

 4     burning indicated that whole villages were selectively burned or at least

 5     all buildings that had been owned by ethnic Serbs were marked for

 6     burning."

 7        A.   Yes.

 8        Q.   How did you know that?  You didn't go to all the villages.

 9        A.   Well, we're basing that from what we saw in the visits to the

10     numerous villages in and around the Knin area and so we certainly could

11     make a logical inference that if those villages were substantially

12     damaged through burning and looting, then other villages in the occupied

13     area could have befallen the same fate.  We left that up to our Croatian

14     colleagues at the Croatian Helsinki Committee who were doing field work,

15     investigating these issues throughout the region, the Krajina region.

16        Q.   It's the statement:  "All buildings that had been owned by ethnic

17     Serbs were marked for building."

18             And would you agree that that is not a remark that you were in a

19     position to make?

20        A.   Certainly I'm in a position to make that remark.

21        Q.   How many buildings did you see with markings on them?

22        A.   Well, there were a number of buildings, as I mentioned earlier

23     where --

24        Q.   How man?  Sorry.  How many was the question, not a number, how

25     many?

Page 10649

 1        A.   I don't know and since I do not have possession of my rough

 2     notes, I couldn't actually tell you that number.

 3        Q.   So from your answer, we're to take it that all the Serb houses in

 4     the villages that you went to, every Serb house was marked in that way.

 5     Is that what you're saying?

 6        A.   No.  I think I was clear earlier in stating that some houses had

 7     markings on them, including houses that had markings that said, you know,

 8     this is a Croatian house, don't touch.

 9             So, in answer to your question, no, not every building I saw had

10     some specific marking on it, but many did.

11        Q.   And then just that sentence also in this paragraph, paragraph 18:

12     "I think it also highly probable that local Croatians who had been

13     displaced during the 1991 fighting were employed in the arson effort."

14             Leave the word "employed" for the moment because the focus of the

15     question is this issue of "highly probable that local Croatians who had

16     been displaced during the 1991 fighting."  By that did you mean

17     civilians?

18        A.   It could be civilians; that's probable.  They could be

19     reservists; that's probable.

20             But I think our main focus was attention to the systematic and

21     thorough nature of what had taken place.  So even if civilians had

22     ultimately been responsible, theoretically, it still would have been the

23     Croatian military authorities to put a stop to it.  They would have been

24     obligated, legally, obviously, to do so.

25        Q.   You don't need an accelerant such as gasoline or diesel to light

Page 10650

 1     a fire, do you?

 2        A.   Not necessarily, no.

 3             JUDGE ORIE:  Mr. Kay, if you would not mind, I'm seeking

 4     clarification of one of the previous answers.

 5             MR. KAY:  Yes.

 6             JUDGE ORIE:  You said it was highly probable that local Croatians

 7     who been displaced during the 1991 fighting, that they were involved

 8     in -- that they were employed in the arson effort.

 9             Now, I come back to the issue that we have dealt with before.  On

10     the one-hand side, you say civilians had not returned, were not allowed

11     yet to return; and, at the same time, you say that you find it probable

12     that they were employed in the effort for arson.

13             How can I reconcile this probability with, at the same time, your

14     testimony that there were not yet back?

15             THE WITNESS:  And, yes, Your Honour, I understand your question,

16     and there is an distinction between the two, the distinction being that

17     if civilians, civilian Croats were employed to do the burning that infers

18     or implies that their employment, their use, was at the knowledge of or

19     instigation by the authorities in control of the area.

20             JUDGE ORIE:  But that is a different matter.

21             THE WITNESS:  Well --

22             JUDGE ORIE:  That's a different matter.  You said they could not

23     have been involved in looting because they had not yet returned and they

24     were not allowed yet to return; and now you say they may have been

25     returned but they must have done it under the authority of A, B, or C.

Page 10651

 1             You also understand my problems with -- in reconciling your

 2     answers.

 3             THE WITNESS:  Are you, Your Honour, lumping all civilians into

 4     this group of displaced persons who then all of a sudden came back?

 5             JUDGE ORIE:  No.

 6             THE WITNESS:  Or maybe there were groups of -- there were

 7     individual civilians who because of their political beliefs or their

 8     desire to take revenge, for instance, may have been approached or they

 9     themselves approached the authorities or had been used by the

10     authorities?  I don't know.  These are all speculations or inferences

11     that required investigation either by the Croatian authorities or, let's

12     say, by the OSCE in the framework of the role it plays in the region.

13     So --

14             JUDGE ORIE:  We now have several options:  Either those who were

15     displaced had not returned; or they had returned and you say it's

16     speculation that it might have been with the assistance or under the

17     authority of the Croatian authorities; and the third possibility is that

18     they returned just by themselves, spontaneously and nevertheless you draw

19     all kind of conclusions in whether they could or could not have been

20     involved in looting, arson, et cetera.

21             THE WITNESS:  Well, I think you will see, Your Honour, throughout

22     the report and my additional follow-on statements I don't necessarily

23     infer or state that, you know, displaced persons returned without the

24     knowledge of the Croatian authorities to engage in burning and looting

25     and then leave.

Page 10652

 1             In the villages that we visited there was no one there.  Now, if

 2     these displaced persons had intended to come home to their own homes, and

 3     if their homes were in this village where we counted all the buildings

 4     burned, it seems highly improbable that they would return just to burn

 5     down their own house and then leave.

 6             JUDGE ORIE:  Yes.

 7             Please proceed.

 8             MR. KAY:  Thank you, Your Honour.

 9        Q.   Your conclusion, "I think it is also highly probable that local

10     Croatians who had been displaced during the 1991 fighting were employed

11     in the arson effort" --

12        A.   Yes.

13        Q.   -- the use of the word "employed" is based on what evidence?

14        A.   Well, I'm using it first and foremost just as a verb.  You know,

15     to employ, not necessarily in a paid position.

16        Q.   I've just asked you what your evidence was, rather than any

17     grammatical explanation --

18        A.   Right.

19        Q.   -- just what your evidence was?

20        A.   Just based on what I had seen and the information that we came

21     across, and again I state it is highly probable.  It is probability.

22     It's not a fact.  I don't assert fact that this has happened and I have

23     X, Y, and Z documents to back me up.  But based on what we have seen,

24     what we have learned, both before and afterwards and again I make -- I

25     made these statements in 2004, so certainly additional information may

Page 10653

 1     have come my way in the intervening ten years.  But, again, I merely say

 2     "highly probable."  It's highly probable, that, you know, local Serbs

 3     before they left burned those houses, I don't know.

 4        Q.   Well, what information could have come your way in the last ten

 5     years?

 6        A.   Well, while I was with the IHF it could have been information

 7     obtained by our Croatian colleagues at the Croatian Helsinki Committee

 8     who made -- who undertook tremendous efforts to engage in field work and

 9     obtained quite a bit of information in the process to follow up on these

10     events.

11             So some of that information I was aware of, but the great bulk of

12     it I was not.  So you would have to refer to that the Croatian Helsinki

13     Committee.

14        Q.   Well, I'm sorry, you're the one giving evidence and you're the

15     one that has used the word, and I'm asking you to give me the

16     information, if have you it.  If you don't have it and you don't know,

17     it's much easier, Mr. Hayden, just to say if you don't know something.

18        A.   Well, I still don't know.

19        Q.   After a certain point in time I went on to different things

20     pursuing my professional career.  I didn't sit here and focus on this

21     thing for the last 13 years.

22             JUDGE ORIE:  Mr. Hayden, may I seek clarification of one of your

23     previous answers.

24             You told us about the probability of Croats being employed in the

25     arson, and then you said and I did not fully understand that.  You said:

Page 10654

 1     "But it's highly probable that, you know, local Serbs, before they left,

 2     burned those houses.  I don't know."

 3             Did you consider this a probability, a high probability?

 4             THE WITNESS:  No.  We did not consider it.

 5             JUDGE ORIE:  But then I have difficulties in understanding this

 6     line it's highly probable that, you know, local Serbs, or did you say

 7     improbable?

 8             THE WITNESS:  No, I was just merely drawing a distinction in

 9     terms of probability versus fact and I'm only referring to the statement.

10             So you know many things can happen in the realm of probability.

11             JUDGE ORIE:  Well, probability means, to me, that it is certainly

12     more likely than not.  That's what probability apparently -- so,

13     therefore, if we say it is probable that Croats were employed in it and

14     it is probable that Serbs may have burned the houses before they left,

15     that's, for me, inconsistent if you say probability means more likely

16     than not, because it can't be more likely than not that the Croats and,

17     at the same time, be more likely than not that the Serbs did it.

18             THE WITNESS:  War does funny things to people, but again I'm just

19     referring to the -- as the attorney is to the defence, to that statement,

20     highly probable.

21             JUDGE ORIE:  Please proceed, Mr. Kay.

22             MR. KAY:  Thank you, Your Honour.

23        Q.   Turning to paragraph 20, the first sentence of the statement:

24     "Third, the fact that no or little effort was being made by the Croatian

25     authorities to intervene or halt the burning strongly indicated that

Page 10655

 1     senior military and civilian officials had knowledge of or were directly

 2     involved in ordering and coordinating the burning and looting."

 3             Did you make any inquiry as to what efforts and attempts the

 4     Croatian authorities were making to stop burning, looting, and crime in

 5     the region?

 6        A.   Yes.

 7        Q.   And what steps did you take to find out that?

 8        A.   Well, asking persons that we interviewed, and for instance,

 9     General Cermak said that they had five people under surveillance, they

10     were watching them because they believed that these five individuals were

11     responsible for all that burning and looting.

12        Q.   You're exaggerating that.  He did not say that five individuals

13     were responsible for all the burning and looting.  That's not right, is

14     it?

15        A.   No, about these incidents he admitted that they were happening

16     and that he had five suspects under surveillance, so yes, I'm being a bit

17     ironic but at the time we heard this information, it leads one to think

18     hmm, how could five individuals be responsible for all of that?

19        Q.   That is not what General Cermak said, is it?

20             JUDGE ORIE:  I think that the witness answered that question

21     already that that was not what Mr. Cermak said.

22             Please proceed.

23             MR. KAY:  Sorry, Your Honour.

24        Q.   The three people you spoke to, Mr. Pasic, General Cermak, and the

25     police chief whose name you don't know, none of them denied that crimes

Page 10656

 1     were happening.  That's right, isn't it?

 2        A.   That's correct.

 3        Q.   Dealing first with the police chief, did you ask him what

 4     measures the Ministry of Interior, the MUP, had taken to try and assist

 5     him in relation to preventing crime happening in the region?

 6        A.   I don't believe I asked him a question regarding to preventing

 7     crime in the region.  I don't recall that.  I may have, but ...

 8        Q.   Well, why not?

 9        A.   Well, I think that at this point we were interested in several

10     other questions and towards the end we did get to discussing the arson,

11     and the most important thing was that we felt when we added this into the

12     report was that he had no knowledge about the suspects that the military

13     was currently surveilling and that he seemed to lack awareness about any

14     efforts to address the issue, because he certainly wasn't doing it.  His

15     focus was -- I'm not quite sure what his focus was at that time.  I think

16     maybe he was trying to determine that himself.

17        Q.   Well, did you appreciate there's civil police and military

18     police?  Did you appreciate that there was civil police and military

19     police?

20        A.   Well, certainly yes.

21        Q.   Did you appreciate that what the military police may be doing

22     could be different from the civilian police?

23        A.   Certainly.

24        Q.   Is that a matter that you took into account?

25        A.   No.  That wasn't a focus at that particular time.

Page 10657

 1        Q.   You came to Mr. Pasic in the afternoon on Tuesday, the 18th, and

 2     by that time, you were biased against the Croatian authorities, weren't

 3     you?

 4        A.   No.

 5        Q.   And isn't that the reason why you did not complete inquiries and

 6     make research in relation to the background that the Croatian authorities

 7     could have explained to you?

 8        A.   I don't believe so.

 9        Q.   Were you aware of many orders being issued by the Ministry of

10     Interior directing police administration chiefs and police chiefs to take

11     measures to prevent burning and looting in the area?

12        A.   I wasn't privy to those and the police chief never showed me any

13     of those or our mission members any of those orders.

14        Q.   How long did you see the police chief for?

15        A.   Well, let's see.  Probably half an hour at most.  These people

16     were all busy doing their various duties and it's not like we could sit

17     down with them for several hours at a time.  I could appreciate, as you

18     asked me earlier, that they had responsibilities to attend to and sitting

19     down and meeting with us was not necessarily high on their list.

20        Q.   In your records of the report, you show that your meeting with

21     General Cermak commenced at 1500.

22        A.   No.  It seems that the meeting with General Cermak commenced at

23     1430 --

24        Q.   1430.

25        A.   -- and lasted half an hour and then we met with the Croatian

Page 10658

 1     police chief for half an hour.

 2        Q.   Can you just stop there.  What time was the meeting with the

 3     police chief?

 4        A.   In the notes, it states 19 August at 1500 hours.

 5        Q.   Can I just get this timing right as it may be material as to your

 6     position.

 7        A.   Mm-hm.

 8        Q.   We know from your report at 5.2, or Mr. Du-Toit's numbering, page

 9     8 that the meeting with General Cermak was at 1430.

10        A.   That's correct.

11        Q.   We know from your report on the same page at 5.3 that your

12     meeting with a Croatian civilian police chief in Knin and Officer Jukic

13     was at 1500.

14        A.   Correct.

15        Q.   Those meetings did not take place in the same building, did they?

16        A.   I believe we met the Croatian chief, police chief, not in the

17     same building as General Cermak but outside that building.

18        Q.   And by that you mean you met him in the police station where the

19     appointment was booked?

20        A.   I can't exactly remember.  I know that the meeting with General

21     Cermak at 1430 hours did not take the entire time.  General Cermak

22     was busy; we appreciated that.  We asked him some questions and then he

23     had to get on.  And he then -- he also was kind enough to extended the

24     assistance of his liaison officer and another to go and visit the Knin

25     cemetery and on the way out of the office to go there, I believe that's

Page 10659

 1     when we ran into the civilian police chief because we had been trying to

 2     set up a meeting and before going into the meeting with General Cermak I

 3     don't believe we had had a time but just the confluence we met, as we

 4     were leaving, he was coming in and we had an opportunity to speak briefly

 5     about some matters and then we got into our vehicles and drove no more

 6     than a few minutes up the street to the cemetery.

 7             So the distances were very short.

 8        Q.   And the meeting with General Cermak was under half an hour?

 9        A.   I believe so, yes.  We weren't there that long, so ...

10        Q.   And did you give him the impression that you were from the

11     International Commission of the Red Cross?

12        A.   Not at all.  That would have been a subterfuge and an

13     embarrassment.  We clearly identified ourselves as members of the

14     International Helsinki Federation for Human Rights and the Croatian

15     Helsinki Committee for human rights.  Whether he took that to mean

16     something else, I don't know.

17        Q.   One of your -- were you speaking Croatian to General Cermak?

18        A.   No, I was not.  My Croatian colleague was serving as a

19     translator.  And my IHF colleague, who spoke fluent Croatian, was not

20     speaking Croatian in the context of the interview, so that we could --

21     the mission members could confer later in terms of translation.

22        Q.   So you don't know what was said?

23        A.   Well, based on the -- yes, I do know what was said based upon the

24     translation of my colleagues.

25        Q.   Was it translated for you in the room?

Page 10660

 1        A.   Yes, yes, it was.

 2        Q.   Sorry, I thought you were giving a different circumstance.

 3        A.   No, no, no.  So I would ask a question, my colleague would relay

 4     it to General Cermak in Croatian, he would ponder an answer, he would say

 5     his answer and then my colleague would translate the answer for me.

 6        Q.   So who was the translator for you?

 7        A.   That would have been Petra Klein.

 8        Q.   And did General Cermak have a translator?

 9        A.   I don't believe so, no.  But we, you know, let him know that

10     in -- in introducing ourselves here is my Croatian colleague and she will

11     translate for me, for us.

12        Q.   And was the man you called I think Captain Dondo, was he there in

13     the meeting with you?

14        A.   Yes.

15        Q.   And in that period of time you were with him, he treated you

16     perfectly civilly.  Is that right?

17        A.   Yes, he did.

18        Q.   He wanted to help you to see whatever you wanted to see?

19        A.   Yes, that was my impression.

20        Q.   He did not put any obstacles in your way or try to stop you?

21        A.   No.

22        Q.   And as you said, you wanted to see the graveyard and he sent you

23     Mr. Dondo with you to take you there?

24        A.   Correct.

25        Q.   The four reports that you said he -- he provided you, which were

Page 10661

 1     to detail deaths in the area and where people were located or -- or

 2     buried, can you identify those reports more specifically, as to what

 3     documents they were?

 4        A.   They were lists with names and locations of where the body was

 5     found and where the body was buried.

 6        Q.   And was that provided to help you to inform you?

 7        A.   Yes.  The lists were given to us because General Cermak stated

 8     that these were -- these were lists of the individuals who were interred

 9     in the mass grave in the Knin cemetery.

10        Q.   Well, you didn't know whether it was a mass grave or not, did

11     you?

12        A.   Well, no, we didn't.  I mean, it looked like a mass grave.

13        Q.   Well --

14        A.   But we did not know what was inside of it.  We were relying upon

15     the information that we had received from UN personnel, who referred to

16     the grave site, and Croatian authorities who had referred to the grave

17     site and ...

18        Q.   Was this another example of you having preconceived ideas about

19     the Croatian authorities and developing a bias against them because you

20     believed there was a mass grave?

21        A.   No.  We were following up on the fact that we had learned that

22     there was a mass grave in the Knin cemetery.  So of course we would like

23     to investigate further and try to understand, and so when we arrived at

24     the cemetery you could see what appeared to be a mass grave, fully

25     dressed with crosses arrayed on either of the longitudinal sides of a

Page 10662

 1     rectangular area that was quite long.  So one can then say, hmm, this is

 2     a mass grave.  Now -- I'm not -- well, I tried to go into this with as

 3     neutral a position as possible in order to try to do the work

 4     appropriately.  If I came in there with the attitude that I was -- that I

 5     disliked General Cermak or the Croatians, that would certainly prejudice

 6     my work, but did I not.  I don't take sides, except for, you know,

 7     civilian victims, people who don't deserve to be harmed or have their

 8     human rights violated.

 9        Q.   I hear what you say, but I'm interested in the issue of -- of

10     your believing there was a mass grave because nowhere do you ever suggest

11     that it was alleged to be a mass grave or something that you yourself had

12     no knowledge about.  You just assumed it was a mass grave.  Isn't that

13     right?

14        A.   We asked about the mass grave.  It's a legitimate question, and

15     General Cermak stated that there was a grave that had, as it is stated

16     here in section 5.2 of the report, stated that at the time of our meeting

17     there were 120 victims, 108 of those being members of the Republika

18     Srpska Krajina army and that the rest were civilian casualties of the

19     shelling.

20             So if it is a mass grave General Cermak himself verified that to

21     the -- to our satisfaction and then proceeded to provide us with lists

22     that would help us understand that yes, this was a mass grave and these

23     are the bodies that we found that are placed in that grave, and then when

24     we --

25        Q.   Can I ask you a question first because -- let's take this in

Page 10663

 1     stages.  First of all he never said to you that there was a mass grave.

 2     That's right, he never said that to you, did he?

 3        A.   I can't recall whether or not he used that specific phrase.

 4        Q.   Well, it makes a difference, Mr. Hayden.  It makes a difference,

 5     doesn't it?

 6        A.   Not necessarily because if let's say I asked him about, we

 7     understand that this is a mass grave in the Knin cemetery, what do you

 8     know?  And then he proceeded to tell us about the mass grave.  Now, when

 9     you put more than one body in a grave site typically it's just called a

10     mass grave.  It is a generic term but -- I'm not using it prejudicially

11     to, you know, accuse General Cermak of something.

12        Q.   So if you could just give us your definition of a mass grave so

13     that we know what you're talking about and others may make a decision

14     whether you are right or wrong.  But if you could just give your

15     definition.

16        A.   Well, I would say my definition of a mass grave is a hole in the

17     ground that has more than one body in it and then is covered up.

18        Q.   So a single hole?

19        A.   Yes, a single hole but the single hole could be of a small size

20     or a large size.  So, you know, that would -- how big that mass is

21     certainly would be predicated by how big the hole is, I guess.

22        Q.   So if I chose to be buried with my wife, would I be in a mass

23     grave?

24        A.   Well, I would say typically you wouldn't be called a mass grave

25     but we understand that in a war type situation when you have something

Page 10664

 1     such as that with more than one body in it, you may not know how many

 2     bodies are in it, that was the big question, that we would refer to as a

 3     mass grave.

 4        Q.   Did you appreciate that your comments and remarks about there

 5     being a mass grave were very insensitive and caused a great deal of upset

 6     to people?  Did you appreciate that?

 7        A.   Well, I didn't witness any of that.

 8        Q.   Did you appreciate that to Croatian people, when you're making an

 9     allegation that there was a mass grave and that they might disagree with

10     you, that you had to be sure of your facts?

11        A.   That seems to be an unusual question, but I was speaking about

12     what appeared to be a mass grave.  What do you know about it.  I can't

13     control whether someone is going to get upset about the question.

14        Q.   So in the short period of time that you saw Mr. Cermak.  You came

15     in with allegations against the Croatian authorities and not seeking

16     explanation.  Isn't that right?

17        A.   That is incorrect.

18        Q.   What allegations did you make?  Shall we just have a look at

19     that.

20        A.   I made no allegations.

21        Q.   Well --

22        A.   I didn't go into General Cermak's office and stand up and point

23     my finger at him and say, You have done this and you have done that, no.

24     We went in and exchanged information.  We asked questions about the

25     situation on the ground.  There were more specific questions regarding

Page 10665

 1     burning, arson and looting.  We wanted to understand what General Cermak

 2     understood.  We wanted to get a -- the position of the ranking military

 3     authority there.

 4             So when we asked or I asked the question about the mass grave it

 5     wasn't standing up and alleging.  It was, we understand that there is a

 6     mass grave in the Knin cemetery, what can you tell us about that.  And

 7     that seems to be a perfectly reasonable question and General Cermak

 8     didn't seem upset at all.  In fact, he reasonably answered and provided

 9     us information and assistance to go and learn more about it.

10             JUDGE ORIE:  M. Kay, may I ask one or two questions.  It appears

11     that you have done with the details with the graveyard.

12             Mr. Hayden, I'm taking you back to your answers page 69 where you

13     are dealing with the information you received from General Cermak.  You

14     said we asked about the mass grave it is a legitimate question and

15     General Cermak stated that there was a grave that had, as it is stated

16     here in section 5.2 of the report, stated that at the time of our

17     meeting, 120 victims, 108 of those being members of the Republic of

18     Serbian Krajina army, and that the rest were civilian casualties of the

19     shelling.

20             You say so if it is a mass grave, General Cermak himself verified

21     that and then provided you with lists.

22             Now, what you said there about the 120 victims, 108 being members

23     of the Republic of the Serbian Krajina, I understood that as referring to

24     the persons buried.

25             Is that correct?

Page 10666

 1             THE WITNESS:  Yes.

 2             JUDGE ORIE:  Now, let me then take you to the report, 4.3.  There

 3     were two rows of crosses.  The mission counted 86 crosses, which is the

 4     number of bodies claimed by General Cermak to be interred in the grave

 5     site.  Cermak claimed, it reads one line further down, that there were 84

 6     military buried, 74 of them Bosnian Serb army soldiers killed during a

 7     counterattack, and two civilians who allegedly died at Knin hospital.

 8             Now, this seems to be the details Mr. Cermak gave you about those

 9     who were buried, whereas in 5.4, I think, it is not about -- oh, no, it

10     was not 5.4; it was 5.2.  "In response to our questions concerning

11     civilian casualties, General Cermak stated that at the time of our

12     meeting, there were 120 victims, 108 of those ARSK soldiers.  He stated

13     that the rest were civilian casualties of the shelling in Knin."

14             Are you mixing up, at this moment, the information General Cermak

15     gave you about the graveyard and about casualties?

16             THE WITNESS:  Yes, Your Honour, obviously, I -- I confused the

17     two numbers and which sections they are at.

18             So, yes.  5.2 refers to civilian casualties or our question

19     regarding that, whereas the information in section 4 regarding the mass

20     grave, 4.3, refers to the information that General Cermak gave us

21     regarding numbers and the lists.

22             So just confusing the two.

23             JUDGE ORIE:  May I urge you to be very precise on the factual

24     basis of your answers.

25             Please proceed, Mr. Kay.

Page 10667

 1             MR. KAY:

 2        Q.   When you saw the chief of police, could you recollect what his

 3     actual position was?  Chief of Croatian police can refer to a number of

 4     different jobs.

 5        A.   Well, as we understood, as I understood, he was the police chief

 6     in Knin.  So he would be the ranking local police officer.

 7        Q.   And when you saw him, did you ask him what -- what measures he'd

 8     been taking to -- to stop crime?

 9        A.   I don't -- I don't recall if I asked him.  Maybe one of my

10     colleagues did, but I didn't ask him specifically about stopping crime.

11     Our primary concern was the detention centre, which the local police were

12     operating, and the detainees, and to find out some specifics with respect

13     to that.

14        Q.   So your statement, in paragraph 20, that they'd made little or no

15     effort to intervene or halt burning, is actually based on no information

16     that you sought from the Croatian authorities.

17        A.   Well, I think we did speak with the police chief regarding the

18     burning, and included at the end what we thought was the important

19     statement.  Again, I'd have to refer to my notes which I unfortunately do

20     not have, or my other colleagues' notes to determine whether or not we

21     asked that question, but I don't recall asking or discussing crime at

22     large, you know like everyday crime, shoplifting or stealing a cow or,

23     you know, drunken driving.

24        Q.   How can you go on a fact-finding mission and not ask key facts

25     such as that?  You must recognise that that's a failure in your work.

Page 10668

 1        A.   No.  Why should it be?  Again, if he's the local police chief I

 2     doubt he was really in a position to exercise his full authority, given

 3     that it was a military zone so the military and the Ministry of Interior

 4     would be responsible for that.  So maybe that's information we decided

 5     not to include in here, given that we were concerned about the detention

 6     centre.

 7        Q.   Did you appreciate that the police chief came under the Ministry

 8     of Interior?

 9        A.   Yes, I understood that, you know, most law enforcement in Croatia

10     falls under the Ministry of Interior.

11        Q.   Did you appreciate this in fact was not a military zone?

12        A.   I couldn't appreciate it.  I understood it as being a military

13     zone.

14        Q.   Where did you get that impression from?

15        A.   Well, the way that the military was in control of the area.

16        Q.   You're just making this up as you go along, aren't you?

17        A.   Are you inferring that I'm lying?

18        Q.   Yes.

19        A.   Well, you're completely wrong.

20        Q.   Did you know that people were pouring into this region --

21        A.   No.

22        Q.   -- at this time?

23        A.   I did not.

24        Q.   Trains coming in --

25        A.   I didn't see --

Page 10669

 1        Q.   -- buses?

 2        A.   -- people pouring in.  If they were pouring in they certainly

 3     would have been evidence of them pouring in in Knin at the train station

 4     or buses, and likewise as I said earlier, we did not see any civilians,

 5     let's say, persons who were returning to their homes in the outlying

 6     villages.  They were empty and we didn't see buses on the roadways.

 7        Q.   Unless of course you failed to go a sufficient number of places

 8     and to do adequate research.  Isn't that right?

 9        A.   No, not necessarily.

10        Q.   Thank you.

11             MR. KAY:  I have no further questions.

12             JUDGE ORIE:  Thank you, Mr. Kay.

13             Mr. Kuzmanovic, you're next, but let's first have a break, I

14     think that would be ...

15             Could I get an assessment of the time you would need and then

16     from the Gotovina Defence.

17             MR. KUZMANOVIC:  Your Honour, I hope to be finished by the end of

18     the day's session, Your Honour.  I will press to finish today.

19             JUDGE ORIE:  And then Gotovina Defence.

20             Mr. Kehoe.

21             MR. KEHOE:  Your Honour, may I have one moment just to consult

22     with my client about an issue and just tell you when we come back after

23     the break and I will have a direct assessment then.

24             JUDGE ORIE:  That's fine.  Because it will have no impact on

25     today's course of events.

Page 10670

 1             MR. KEHOE:  Yes.

 2             JUDGE ORIE:  We will have a break and resume at quarter to 1.00.

 3                           --- Recess taken at 12.26 p.m.

 4                           --- On resuming at 12.49 p.m.

 5             JUDGE ORIE:  Mr. Kuzmanovic.

 6             MR. KUZMANOVIC:  Yes, Your Honour, I'm ready.

 7             JUDGE ORIE:  Yes, I would like to have at the end of this session

 8     five minutes for further scheduling purposes.

 9             Mr. Kehoe, if you could give us already an answer on the question

10     I put to you before the break.

11             MR. KEHOE:  Yes, Your Honour, I have no questions of this

12     witness.

13             JUDGE ORIE:  Yes.  Then, Mr. Kuzmanovic, you may proceed.

14             Mr. Hayden, you will now be cross-examined -- apparently have you

15     a problem hearing me.

16             THE WITNESS:  No.

17             JUDGE ORIE:  You will now be cross-examined by Mr. Kuzmanovic,

18     who is counsel for Mr. Markac.

19             Mr. Kuzmanovic.

20             MR. KUZMANOVIC:  Thank you, Your Honour.

21                           Cross-examination by Mr. Kuzmanovic:

22        Q.   Good afternoon.  If we could go to P986, please, first -- first

23     page of the statement.

24             Mr. Hayden, do you have the hard copies of statements in front of

25     you?

Page 10671

 1        A.   Yes.

 2        Q.   This is 15 May 1996.  This was something in written form that you

 3     wrote in response to a request from the ICTY.  Correct?

 4        A.   Correct.

 5        Q.   And in paragraph 1.1, you note that:  "The duration of my mission

 6     to the Krajina was from 15 to 20 August 1996.  The 15-16 were spent in

 7     Zagreb and Split."

 8             Now, correct me if I'm wrong, but Zagreb and Split are not in

 9     Krajina; they are in the Republic of Croatia.  Correct?

10        A.   Correct.

11             MR. DU-TOIT:  Sorry, Mr. President, to interrupt, but I think we

12     may have just the wrong statement on the screen.

13             JUDGE ORIE:  It seems that we have the 2004 statement on the

14     screen at this moment rather than the --

15             MR. KUZMANOVIC:  1996.

16             JUDGE ORIE:  Six, yes.

17             MR. KUZMANOVIC:  If I gave the wrong exhibit number I apologise.

18     I had it written down as P986.

19             THE INTERPRETER:  Could all unnecessary microphones be switched

20     off, please.  Thank you.

21             MR. KUZMANOVIC:  Mr. Registrar, is this P986 or did I incorrectly

22     identify it?

23             THE REGISTRAR:  This is P986.

24             MR. KUZMANOVIC:  Thank you.

25        Q.   Just I'll repeat again.  Section 1.1 when you refer to your

Page 10672

 1     mission to Krajina you refer to two days spent in Zagreb and Split and

 2     Zagreb and Split are in Croatia.  Correct?

 3        A.   They are in Croatia, that's correct.

 4        Q.   And the 20th when you returned back to Zagreb again, Zagreb is

 5     not part of the Krajina; it's Croatia, correct?

 6        A.   That's true.

 7        Q.   Now you said the 15th and 16th were spent in Zagreb and Split.

 8     Please tell what you did in Zagreb on the 15th.

 9        A.   In the 15th it was meeting our colleagues at the Croatian

10     Helsinki Committee.  We also met with members of the UN human rights team

11     and discussed information that we had received from them prior to our

12     mission, any updates that they wanted to give us and then we arranged for

13     our air flight travel and some other logistics issues and then flew to

14     Split.

15        Q.   So I take it when you were in Zagreb you did not speak with or

16     meet with any members of the Croatian government?

17        A.   No.

18        Q.   Why was that?

19        A.   It was not possible.

20             THE INTERPRETER:  Please slow down for the interpreters.  Thank

21     you.

22             Kindly slow down for interpretation.  It is impossible to

23     interpret this rate.

24             JUDGE ORIE:  [Previous translation continues] ... Mr. Kuzmanovic

25     as well to make short pauses between question and answer and answer and

Page 10673

 1     question.

 2             Please proceed.

 3             MR. KUZMANOVIC:  Just put a sign on me, Judge.  I have to

 4     remember that every time.  I apologise for that.

 5             THE WITNESS:  So in answer to your question, no, we were unable

 6     to meet with members of the Croatian government.

 7             MR. KUZMANOVIC:

 8        Q.   On the 16th, I take it you were in Split?

 9        A.   Correct.

10        Q.   And what did you do on the 16th in Split?

11        A.   Let's see, we arranged for a vehicle and staying at a hotel and

12     planning the -- the period of the 17th and through the 19th.

13        Q.   Okay.  So if I'm correct the first two days that were in Croatia,

14     you did not meet with any members of the Croatian government or Croatian

15     authorities.  Correct?

16        A.   Correct.

17        Q.   Then on the 17th, in the morning, you left for Knin?

18        A.   Yes.

19        Q.   And then you would return to Split that evening?

20        A.   Yes.

21        Q.   And the same thing on the 18th?

22        A.   Yes.

23        Q.   And again the same thing on the 19th?

24        A.   Yes.

25        Q.   Did you leave on the 19th for Zagreb?

Page 10674

 1        A.   We left that -- that night.

 2        Q.   And then on the 20th, you were in Zagreb?

 3        A.   Yes.

 4        Q.   And you had a press conference there, did you not?

 5        A.   Correct.

 6        Q.   And at that press conference, you announced, among other things,

 7     that you had thought there was a presence of a mass grave.  Correct?

 8        A.   Yes.

 9        Q.   Would it be fair to state, Mr. Hayden, that the objective of your

10     trip was to put political pressure on Croatia?

11        A.   An objective of our mission was to relay information to the OSCE

12     and urge the OSCE through its various mechanisms to address these issues

13     with the Croatian government.

14        Q.   It's true, is it not, Mr. Hayden, that if you had gone on this

15     trip and had concluded that the Croatian authorities were doing the best

16     they could under the circumstances, it would have defeated the whole

17     purpose of sending you down there in the first place, would it not?

18        A.   No.

19        Q.   And why not?

20        A.   Well, there's still so much that was unknown or not understood,

21     and we certainly just couldn't leave it up to our hopes that these issues

22     or concerns that had arisen prior to our mission would be taken care of

23     by the Croatian government, by -- as the best they could do.

24        Q.   As a matter of fact, in answer to a question posed by Mr. Kay

25     during his cross-examination of you, at page 54, your answer in part, was

Page 10675

 1     that:  "The document we were directing at the OSCE," meaning your report:

 2     "In order to urge the OSCE through its various mechanisms to put pressure

 3     on the Croatian government."

 4             You hadn't had a written report at the time of your press

 5     conference.  Correct?

 6        A.   No, we did not.

 7        Q.   The -- P986 again, on page 3 of that report and it's section 7.

 8             Just waiting for it to get up on the screen, Mr. Hayden.

 9             First sentence of section 7 states:  "Since I did not actually

10     witness any HV troops or Croatian police engaged in the act of burning or

11     looting, I would have been unable to witness any HV troops or Croatian

12     police attempting to prevent such actions."

13             So it's fair to state that in terms of what you saw, you did not

14     see any looting or burning yourself.  Correct?

15        A.   That is correct.

16        Q.   Now, you mention again in your statement, P986, in paragraph 12

17     on page 4:  "The number of HV troops and Croatian police in and around

18     the Knin area were more than sufficient to have mounted an effort to stop

19     the burning and looting of Krajina Serb property."

20             Now, you earlier stated in your report that you did not see any

21     acts of burning and looting.  So, please, can you tell me what the

22     significant of paragraph 12 is to you, since you did not see that

23     occurring?

24        A.   Paragraph 12 is an answer to a question posed by Thomas Elfgren.

25     He sent me a fax with a list of questions and I answered those questions.

Page 10676

 1     I don't recall what the question was, so -- that would have led me to

 2     frame my answer in the way that I did.  So I'm assuming he asked me what

 3     I thought about that, and so if that was the case, I gave him my answer

 4     that I thought it was -- there were sufficient number of troops and

 5     police in and around the Knin area, there were --

 6        Q.   What is a sufficient amount of troops and police?

 7        A.   Well, there were troops -- I can't give you an exact number,

 8     let's say, but when we would drive into Knin there were check-points,

 9     there were personnel on the streets.  When we drove out into the villages

10     we encountered numerous check-points on roads leading into villages.

11        Q.   I guess that would have been appeared to be working since you saw

12     no burning and looting, correct?

13        A.   No, all burning ing and lotting predominantly occurred prior to

14     our arrival.  It was one of the, let's say, instigators for the mission

15     was information we had been receiving through our Croatian colleagues and

16     seeing in the media.

17        Q.   Do you know what efforts the Croatian government, specifically

18     the police or the Ministry of Interior, took to try to control, stop the

19     burning and looting that was going on?

20        A.   No one seemed able to give a clear answer on that.

21        Q.   Do you know, though?

22        A.   No, I do not know.

23        Q.   Did you take any independent efforts to speak with anyone from

24     the Ministry of Interior to find out what efforts were being undertaken?

25        A.   At that time we made an effort to interview -- try to set up

Page 10677

 1     meetings with the Ministry of Interior in Zagreb but were unable to,

 2     given the time-frame, and follow-on activities were to be undertaken by

 3     our Croatian colleagues.

 4        Q.   Did you give us an indication of how much experience you have to

 5     tell us how many HV troops and Croatian police were more than sufficient

 6     to have mounted an effort to stop the burning and looting?

 7        A.   Well, having served six years in the military, I had some

 8     understanding of -- of the military and its function and being -- having

 9     worked in these zones, seeing how troops could be deployed or the --

10     Ministry of Interior forces could be deployed, it would seem that if they

11     were deployed similarly as when we saw them, particularly at those

12     check-points that were located in and around villages that we passed

13     through, they certainly would have seen burning buildings taking -- and

14     could have taken some sort of action.

15        Q.   It's true, though, you didn't even ask the appropriate

16     authorities what steps were being taken by them to stop the looting and

17     burning because none of those questions or answers are contained in your

18     statements or report.  Correct?

19        A.   Well, we spoke with General Cermak who we understood as being a

20     military authority, and Petar Pasic who we understood as being the

21     civilian authority.

22        Q.   I understand that you spoke with them, but I'm asking you

23     specifically you did not ask these people, Mr. Cermak, or Mr. Pasic, or

24     anybody, what steps are you taking.  Correct?

25        A.   Yes.  We asked what are they doing to address this or what did

Page 10678

 1     they do to address it since most of the burning -- most of what we saw

 2     had already taken place prior to our arrival.

 3        Q.   But none of that is contained in your statements or in your

 4     report to the OSCE.  Correct?

 5        A.   No, we make reference to it in -- you know, for instance,

 6     Mr. Pasic, we asked what measures he was taking to stop these civilians

 7     and I said, I can do nothing.

 8        Q.   I asked specifically, though, about the Ministry of Interior

 9     earlier.

10        A.   Well, I didn't meet with anyone from the Ministry of Interior.  I

11     would assume that maybe Mr. Pasic had been appointed by the Ministry of

12     Interior.  He didn't necessarily give me his credentials and detail those

13     so ...

14        Q.   If you could go to page 3 -- I'm sorry.

15             So what roles -- I guess what roles people had, for example, like

16     Mr. Cermak or Mr. Pasic or anyone in the area, you weren't completely

17     certain about, correct?

18        A.   Not absolutely certain about but we were taking at face value the

19     information these individuals gave us or the information that the UN

20     authorities gave us in terms of directing us to who we needed to speak

21     to.

22        Q.   So you asked the UN about that and you didn't ask the Croatian

23     government about that?

24        A.   Again, as I said, when we were in Zagreb we did not have the

25     opportunity to meet or else we would have posed those questions among

Page 10679

 1     many others.

 2        Q.   When did you decide to come to Zagreb?

 3        A.   I think -- I'm not actually sure.  Probably several days

 4     beforehand as we were discussing it at the IHF and deciding how to go

 5     about doing this and what resources we had available, et cetera, and the

 6     timing as it fit within our other obligations.

 7        Q.   Mr. Hayden, when you are coming to a country on presumably a

 8     fact-finding mission, don't you think that it is imperative for you as a

 9     fact-finder before arriving at a place like Zagreb or Knin to set up

10     meetings with the appropriate Croatian governmental authorities,

11     especially in Zagreb?

12        A.   Certainly.

13             MR. KUZMANOVIC:  I'd like to go to P987, please, which is your

14     March 15th, 2004 statement.  Paragraph 5.

15        Q.   At the bottom of paragraph 5 the sentence begins:  "The facts on

16     this report are based on rough notes prepared by myself, along with the

17     other members of the fact-finding mission."

18             Now you have already told us that your notes were lost as a

19     result of a flood.  Were you asked by anyone to contact other members of

20     your fact-finding mission to get their notes?

21        A.   No.

22        Q.   You had mentioned that you had taken rolls of photographs in the

23     time that you were in Knin.  Correct?

24        A.   Yes.

25        Q.   Have you made any attempt to try to track down those photographs?

Page 10680

 1        A.   No.

 2        Q.   Has anyone from the Office of the Prosecutor asked to you try to

 3     try to track down those photographs?

 4        A.   No.

 5             MR. KUZMANOVIC:  If we could put D137 on the screen, please.

 6        Q.   You were asked some questions about this, Mr. Hayden, in

 7     cross-examination earlier, D137, being the evacuation order signed by

 8     Milan Martic of the RSK.

 9             Now, the order itself, you said you saw during your proofing?

10        A.   Correct.

11        Q.   And were you aware that the -- were you made aware that the

12     primary evacuation route from Sector South was through Otric towards Srb

13     and Lapac as noted in the evacuation order, point 3?

14        A.   No, I did not know that.

15        Q.   Were you made aware that UNMO reports, specifically a report of

16     August 14th, noted that through the Jordanian battalion position there

17     were over 70.000 people that had gone through that evacuation route as of

18     the 14th of August?

19        A.   Yes, I was aware that a number of people had gone through that.

20        Q.   And that to you is not an indication of a planned, organised

21     evacuation, that 70.000 people go through the same route, through the

22     same check-point?

23        A.   Well, it was -- I guess that it was a principal route in the

24     direction away from the Croatian military forces.

25        Q.   Into Bosnia.  Correct?

Page 10681

 1        A.   Right.

 2        Q.   Were you aware that the -- for the evacuation that the ARSK

 3     actually sought the help of UNPROFOR command as noted in section 3 of the

 4     evacuation order?

 5        A.   Yes.

 6        Q.   And they actually asked for fuel.  Correct?

 7        A.   That's correct.  I make note of it -- it's made note of in the

 8     report that the authorities -- the RSK authorities had approached the UN

 9     authorities for assistance.

10        Q.   I'd like to refer to P988, which is your report, Mr. Hayden,

11     please, the first page of the report with the heading Introduction.

12             You had earlier said during either direct or cross-examination,

13     I'm not sure which, that you weren't certain of the number of people or

14     that you didn't have a figure or estimate of the number of people that

15     left Sector South.

16             In this particular -- or in the Krajina region, actually.

17             In this particular introduction you note in the third, fourth

18     line:  "The Croatian government claims that it welcomes back to Croatia

19     the 154.079," then it says an estimate as of 21 August 1995, "Croatian

20     Serbs who fled in the face of the offensive from the Krajina."

21             Now, where did you get the number the estimate of 154.079?

22        A.   I believe we came across that in an article in the International

23     Herald Tribune.

24        Q.   And I note that you put here who fled in the face of, not as a

25     result of.  Correct?

Page 10682

 1        A.   Yes, just a choice of words, mm-hm.

 2        Q.   Chose of words are very important, aren't they?

 3        A.   Fled in the face of or as a result of, I say, would seem to be

 4     not too divergent.

 5        Q.   Fleeing in the face of something is something that happens before

 6     something occurs, does it not?

 7        A.   Or as it occurs.

 8        Q.   And it notes that some of these people are being resettled in

 9     other parts of the FRY, meaning the former republic of Yugoslavia and it

10     is noted there, Kosovo, Vojvodina and Sandzak, correct?

11        A.   Correct.

12        Q.   All those are all areas in which there were few or much smaller

13     Serbian populations.  Correct?

14        A.   Correct.

15        Q.   Was it your knowledge that the Federal Republic of Yugoslavia was

16     trying to resettle some of these people to boost Serbian populations in

17     those areas?

18        A.   We didn't know if that was a particular plan at this point in

19     time.  At that particular point in time when this report was drafted, I

20     should say.

21        Q.   By the way, earlier we had mentioned getting fuel from the United

22     Nations, correct, that the ARSK and/or Serb civilians got fuel from the

23     United Nations.  Correct?

24        A.   That they had approached.

25        Q.   They did get fuel from the UN, too, didn't they?

Page 10683

 1        A.   Well, let's see here.

 2        Q.   Or do you know?

 3        A.   From what I understood was that the authorities approached the UN

 4     and asked for fuel and vehicles and that the UN was unable to fully

 5     satisfy their request.

 6        Q.   You worked extensively in Kosovo, did you not, after this

 7     fact-finding mission?

 8        A.   Yes.

 9        Q.   You did learn later that the Federal Republic of Yugoslavia was

10     settling Serbs in Kosovo who came from the Krajina area.  Correct?

11        A.   That is correct.

12        Q.   On the bottom of page 1 you say:  "The short duration of the

13     mission and the limited range of motion in the Krajina forced the team to

14     focus on Knin, the so-called capital city of the Krajina," and then you

15     continue on:  "The IHF would like to," and then you continue on, on the

16     second page:  "Emphasise that because of restrictions of access to the

17     rest of the Krajina, the fact-finding mission was unable to visit other

18     areas of Krajina where reports of violations have been made ... "

19             And I'll stop right there.

20             And if we go down to the footnote, you note that:  "The Croatian

21     authorities did not forbid the IHF team to move beyond certain areas

22     outside Knin but, at the same time, said they could not guarantee our

23     security or that we would not be turned back."

24             Now, the limited range of movement was, to some extent,

25     self-imposed by your group.  Correct?

Page 10684

 1        A.   To a degree, yes.

 2        Q.   And the Croatian government did not say, you can't go in this

 3     area or we're preventing you from going in this area.  Correct?

 4        A.   In and around Knin.

 5        Q.   Well, they didn't prevent you from going outside of Knin, did

 6     they?

 7        A.   As I said, in and around Knin.

 8        Q.   But if -- you could have gone to Donji Lapac if you had wanted

 9     to.  Correct?

10        A.   Yes.

11        Q.   And you could have gone do Vrlika and Gracac and other areas

12     within Sector South without any restriction of movement by the Croatian

13     government.  Correct?

14        A.   I'm not sure about that.  Those were a little further out.

15        Q.   Well, no one prevented you from going there.  Correct?

16        A.   No, but we did have to take into consideration the fact that the

17     Croatian military said that the areas were not ultimately -- they

18     couldn't guarantee our safety in that area and that we would not maybe

19     encounter Serb forces that might be hiding in the woods or something like

20     that, hiding in the hills.

21             So we had to weigh practically what we could achieve, where we

22     could go based on the security on the ground and whatever information we

23     were able to obtain.

24        Q.   Now, you were not prevented from going anywhere in Knin, were

25     you?

Page 10685

 1        A.   No, we were not.

 2        Q.   On page 3 of your report, section 1.4, fourth line from the

 3     bottom of that section, you say here in your report:  "A UN

 4     representative alleged that the second wave of looters was comprised of

 5     civilian police and 'special police' units."

 6             What UN representative told you that?

 7        A.   It was one of the UN representatives we met.

 8        Q.   You don't recall who that was?

 9        A.   Well, that person asked us not to include their name in the ...

10        Q.   Do you know what special police units are referred to as?

11        A.   Referred to as what?

12        Q.   Yes, do you know what they are?

13        A.   Special police units?

14        Q.   Yes.

15        A.   I don't know.  Special police is sort of a broad term, I guess.

16        Q.   But in this instance you have no idea what that is?

17        A.   Yes, we have no idea, so we're taking the information that we

18     gave and I'm just putting it down as a journalist, for instance, would in

19     writing an article, we received this information and we include it as we

20     received it.

21        Q.   Okay.  But did you no independent investigation to determine, for

22     example, whether the special police were even in Knin after the first 31

23     hours of Operation Storm.  Correct?

24        A.   Again we were focussed on certain elements here and other aspects

25     of it, as I -- we note that this -- in our introduction is not a

Page 10686

 1     comprehensive report and that further investigation would have to be

 2     undertaken and that was left to the purview of the Croatian Helsinki

 3     Committee.

 4        Q.   So at least far as you're concerned there was no further

 5     investigation of what these special police units, for example, were?

 6        A.   Not in the time-frame of this ...

 7        Q.   On page 1. -- on section 1.5, again, there are four special

 8     police members mentioned.  How did you know that they were special

 9     police?

10        A.   Well, they identified themselves as Ministry of Interior.

11        Q.   What were they wearing?

12        A.   They were wearing a camouflage-type uniform.  They also were

13     wearing, as far as I recall, a -- they had a Ministry of Interior-type

14     patch.  I didn't take photographs of them, for instance.  They came out

15     of the woods or up the road.

16        Q.   They had camouflage uniforms on with a Ministry of Interior

17     patch?

18        A.   Yes.

19        Q.   What kind of head gear did they have?

20        A.   I don't recall head gear.

21        Q.   And they -- they identified themselves to you?

22        A.   Yes, they identified themselves and asked us what we were doing,

23     and we told them what we were doing and talked to them briefly, and they

24     said, you know, you need to be careful in this area and they suggested

25     that we leave, and we did shortly thereafter, after looking around a bit

Page 10687

 1     more.

 2        Q.   And you saw them -- these four people who you term special police

 3     members, they were not engaged in anything nefarious or improper that you

 4     could see?

 5        A.   Not that I could see, no.

 6        Q.   I'd like to go further into your report.  Actually, I'm done with

 7     your report.

 8             I'd like to back to your statement, your second statement, P987,

 9     on page 6.

10             I'm going to show you, Mr. Hayden, and appreciate you're going to

11     have to be patient with me because it involves dealing with three

12     separate documents.  The first is your statement here, P987 which was

13     March of 2004, paragraph 25.  Just for your reference to tell you where

14     I'm going, the second document is going to be back to your report at 988

15     and the third document will be an UNMO report which is P119.

16             MR. KUZMANOVIC:  So for the registrar's reference those are the

17     three documents I'm going to refer to.  And for the Chamber's reference.

18        Q.   At paragraph 25 you note:  "In the Kistanje area civilian dressed

19     'officials' with maps was observed pointing at houses, later some

20     buildings were seen to be burning."

21             And you note here WCH, those are your initials.  Correct?

22        A.   Correct.

23        Q.    "These were the persons who were dressed in civilian dress and

24     were interacting with the uniformed officers."

25             Now I'd like to take you back to P988, which is your report, at

Page 10688

 1     section 1.1.1.

 2             And in your report, you note:  "There is direct evidence of

 3     systematic burning and looting of civilian homes and community property,

 4     including businesses by the HV, civil police and 'special police units'

 5     after the first 31 hours of Operation Storm."

 6             Now, later in this paragraph, you note, you say:  "On two

 7     separate occasions on or around 17/18 August, UN observers saw 'arson

 8     teams.'"

 9             Now, the second arson team you refer to here is in the Kistanje

10     area civilian dressed 'officials' with maps.  That is what you refer to

11     in your second statement, correct?

12        A.   Right.

13        Q.   Now, you were told this by the UN people that talked to?

14        A.   Correct.

15        Q.   Let's go to P119.

16             If we could go to the fourth page of P119.  And if we could

17     scroll down to where it says:  "The PTL observed ..."

18             Here it says this is an UNMO report from the UN Military

19     Observers.  It says the patrol observed at whatever time it is stated

20     there.

21        A.   Mm-hm.

22        Q.   "In Kistanje, civilian official looking people with maps, looking

23     and pointing at houses," and your report says these are civilian

24     officials.  There's a big difference there, isn't there?

25        A.   Civilian official.

Page 10689

 1        Q.   Looking.

 2        A.   Looking people.  Just a difference of -- of how it's written.

 3        Q.   Well, it's a big difference, isn't it?

 4             JUDGE ORIE:  Mr. Du-Toit.

 5             MR. DU-TOIT:  Your Honour, I think it should be also pointed out

 6     that the report is dated 14th of August, 1995.  That is now on the

 7     screen.

 8             MR. KUZMANOVIC:  It's another example of how wrong the report is

 9     but he can go into that, I'm going to go into that, Your Honour.

10             JUDGE ORIE:  Please proceed.

11             MR. KUZMANOVIC:  Thank you.

12        Q.   There's nothing here that mentions anything about any people in

13     uniform, correct, in this P119 which is in front of you.  Correct?

14        A.   Well, it doesn't, but I wasn't -- wasn't privy to this report,

15     never saw it, and that may not have been the -- the UN official that I

16     spoke with who prepared the report.

17        Q.   Well, I will submit to that you that is the only report that

18     refers to "civilian official looking people or civilian official" in the

19     entire UN and UNMO dossier.

20             So would you agree at least that as of the P119 report, it is

21     different from what it's stated in your report, correct?

22        A.   Well, the choice of terms is different.  Civilian official

23     looking people or civilian dressed officials and number two is referring

24     to UN observers who saw.  So when we spoke with these UN observers, this

25     is what they were telling us, so I didn't have the opportunity to

Page 10690

 1     corroborate it by access to this particular sitrep.

 2        Q.   Nonetheless, those are two difference versions, correct?

 3        A.   They could be.

 4        Q.   I'd like to ask you --

 5             MR. KUZMANOVIC:  Or I'd like to have called up, please,

 6     3D01-0383.

 7             And, Your Honour, just for your reference my last series of

 8     questions will relate to this document and another document, and I will

 9     leave time for the Bench.

10        Q.   Mr. Hayden, this is a letter from the ICTY to you dated

11     April 19th of 1996.  It is asking you to provide, in the second

12     paragraph, detailed witness statement from what you have personally

13     observed and witnessed during your fact-finding mission to the Krajina

14     area last August.

15             Now, would you agree with me, Mr. Hayden, that the statement you

16     gave for the most part contains anecdotes of observations of others

17     rather than facts that you personally observed?

18        A.   I agree.

19        Q.   On the second page of this particular document, there is under a

20     section called definition on war crime, I'm assuming it should be

21     definition of, there's a laundry list of crimes which is given to you in

22     this letter.  Would you agree with me that other than perhaps extensive

23     destruction and appropriation -- extensive destruction, that you did not

24     personally observe any of the other items listed in this particular list?

25        A.   No, I did not personally observe.

Page 10691

 1        Q.   You were asked several questions and you replied that you had

 2     given answers to those questions in your first statement.  One of the

 3     questions is to you why did the civilians leave, did they receive

 4     official instructions to do so or did they leave for personal safety

 5     reasons.

 6             Can you answer that question?

 7        A.   Well, some people that we spoke with, particularly those

 8     individuals who were in the UN compound, did note that there had been

 9     information relayed about evacuation or leaving and others didn't make

10     reference to that and stated that they left for their personal safety.

11        Q.   Okay.  So it was a combination of both?

12        A.   It was a combination of both.

13        Q.   Now --

14             JUDGE ORIE:  Mr. Kuzmanovic, could I seek clarification of the

15     last answer.

16             You said a combination of both.  Now I can imagine two

17     situations.  One is that citizen A leaves his house because he had heard

18     about plans and is following the suggested plans or the ordered plans and

19     another one is leaving because he feels unsafe.

20             Another scenario is that people hear about evacuation plans or

21     guidance or whatever and feel unsafe and for the two reasons leave their

22     homes.

23             Now if you say it's a combination, what do you mean?  That you

24     found both or that you found with the same person knowledge of plans,

25     guidance, et cetera, for evacuation and, at the same time, fear which

Page 10692

 1     made them leave their homes?  I'm -- the term "combination" is not

 2     entirely clear to me.

 3             THE WITNESS:  I would say that based on the interviews that we

 4     had with the displaced persons, again, that there were some who knew or

 5     had heard of an evacuation order and were afraid also of what was taking

 6     place and presumably made the rational decision to evacuate and others

 7     who may have not heard about the order or seen the order but nevertheless

 8     knew there was some military operation going on and fled out of fear of

 9     their personal safety.

10             JUDGE ORIE:  Yes.  And at least a third category, those who just

11     followed what was told without any personal fear.

12             THE WITNESS:  [Overlapping speakers] ...  I didn't speak to

13     anyone who mentioned that, but ...

14             JUDGE ORIE:  Thank you.  Please proceed.

15             MR. KUZMANOVIC:  Thank you, Your Honour.

16             The last document I would like to pull up is 3D01-0386.  And

17     before it pops up --

18        Q.   Mr. Hayden, I will tell you that this is the second document you

19     received from the ICTY.  There it is.  It's dated April 29th of 1996.

20     And it's directed to you, Mr. Hayden, and to a Bjorn Engesland?

21        A.   Engesland.

22        Q.   Do you know why it was also directed to Mr. Engesland?

23        A.   It was directed to Mr. Engesland because he was a member of the

24     mission and was also with us in the Krajina, and he is the executive

25     director of the Norwegian Helsinki Committee.

Page 10693

 1        Q.   Did he give a statement as well?

 2        A.   I'm not sure, but based on this I would assume maybe he did give

 3     a statement.

 4        Q.   Now, you were both asked here, it says dear sirs, I kindly ask

 5     you to include in your statement the identity of the following persons

 6     and it lists the people who were in the report who were listed as

 7     unidentified.

 8             You obviously could not identify that person, correct?

 9        A.   Correct.  Not by name.

10        Q.   Now, I note that the date of your statement is May of 1996.

11     Where is the first statement that you sent that the April 29th fax is

12     seeking some clarification to?  Because I'm assuming that you received

13     that April 19th which was the previous document the request for a

14     statement, then you gave a statement, and then on April 29th you were

15     asked please identify in your statement the following persons if you can.

16             Where is the first statement.

17        A.   Well, this is the only statement that I gave.  I don't recall

18     making any other statements other than this statement here from 1996 and

19     then the 2004 statement, so I'm unclear as to the dating of that.  I

20     don't have any other statements in my records and I have kept everything

21     since I was first contacted by the Tribunal in a file which included the

22     faxes from Mr. Elfgren.

23        Q.   Okay.

24             MR. KUZMANOVIC:  Your Honour, with that I would just like to move

25     these two documents into evidence.  The April 19th letter, 3D01-0383.

Page 10694

 1             MR. DU-TOIT:  No objection.

 2             JUDGE ORIE:  Mr. Du-Toit.

 3             Mr. Registrar.

 4             THE REGISTRAR:  Your Honours, this becomes exhibit number D870.

 5             JUDGE ORIE:  Two together under one exhibit number.  D870 is

 6     admitted into evidence.

 7             MR. KUZMANOVIC:  Your Honour, the other document is 3D01-0386.

 8             JUDGE ORIE:  Yes, I moved too quickly.  I thought it was included

 9     already, which it was not.

10             Mr. Du-Toit, also no objection.

11             MR. DU-TOIT:  No objection.

12             JUDGE ORIE:  Mr. Registrar.

13             THE REGISTRAR:  Your Honours, this becomes exhibit number D871.

14             JUDGE ORIE:  D871 is admitted into evidence.

15             MR. KUZMANOVIC:

16        Q.   One final question, Mr. Hayden, your fact-finding report, is

17     it -- it's a fair assessment, is it not, that the vast majority of

18     material in your report was based on what you heard from others?

19        A.   That is correct.

20        Q.   Thank you.

21             MR. KUZMANOVIC:  I have no other questions.  Thank you, Your

22     Honour.

23             JUDGE ORIE:  Thank you.

24             Gotovina, no questions.

25             Mr. Du-Toit.

Page 10695

 1             MR. DU-TOIT:  No questions.

 2             JUDGE ORIE:  No questions.

 3                           [Trial Chamber confers]

 4             JUDGE ORIE:  I have one question for you.

 5             When you visited the Krajina with your team, did you always stay

 6     together or did you move separately.

 7             THE WITNESS:  There were a couple of occasions when we were in

 8     Knin where we separated in order to try to set up meetings.

 9             JUDGE ORIE:  Yes.  Thank you for that answer.

10             Since I have no further questions for you, this concludes your

11     evidence, Mr. Hayden.  I'd like to thank you very much for coming to

12     The Hague and for having answered questions put to you by the parties and

13     by the Bench, and I wish you a safe trip home again.

14             THE WITNESS:  Thank you very much.

15             JUDGE ORIE:  Madam Usher, could you please escort the witness out

16     of the courtroom.

17                           [The witness withdrew]

18             JUDGE ORIE:  The first procedural issue I intended to raise was

19     how to proceed with this witness, but that is not -- there is no need

20     anymore for that.

21             Then tomorrow there will be a witness who will testify through

22     videolink.  Could I receive estimates on timing because the Chamber needs

23     some time as well.

24             MR. TIEGER:  Your Honour, the Prosecution expects approximately

25     45 minutes to an hour.

Page 10696

 1             JUDGE ORIE:  45 minutes.

 2             Could I hear from Defence.

 3             MR. MISETIC:  Your Honour, we expect about an hour.

 4             JUDGE ORIE:  An hour.

 5             Mr. Kay.

 6             MR. KAY:  I have no questions scheduled at the moment.

 7             JUDGE ORIE:  Mr. Mikulicic.

 8             MR. MIKULICIC:  Me neither, Your Honour.

 9             JUDGE ORIE:  That leaves us time because there is a small pile of

10     oral decisions and my chamber staff is making us a bit nervous because

11     they're ready, but we didn't find time until now to deliver them, so

12     we'll do that, tomorrow there will be sufficient time.

13             There is another matter, the Prosecution has informed the Chamber

14     and the parties that there are unable to schedule witnesses for 27th and

15     28th of October.  Now, Mr. Mikulicic, from the e-mail I took it that you

16     wanted even a month in addition to that.

17             MR. MIKULICIC:  I will appreciate that, but unfortunately, that

18     was my mistake.

19             JUDGE ORIE:  Yes, there was a mistake.  You wanted to know

20     whether we would sit on the 27th and the 28th of October and you are

21     prepared to resume, I do understand, on the 29th of October.  Not of

22     November.

23             This is to confirm that we will not sit on the 27th and the 28th

24     of October.  I immediately add to that that, of course, that it is of --

25     not only of some concern, of concern to the Chamber, that we just lose

Page 10697

 1     two days in court.  I take it there must be very compelling reasons that

 2     we will not sit but of course the Chamber is not in a position to -- to

 3     find the witnesses the Prosecution could not find.

 4             It is it, however, a matter which we might further discuss with

 5     the parties briefly, the further scheduling of the case, in the weeks and

 6     I rather speak about weeks than about months to come, but we'll leave

 7     that for another moment.

 8             Are there any other procedural matters?  There's -- yes, there is

 9     one thing but I think the parties were informed already that on the 27th

10     of November - Mr. Mikulicic, as we are in November now - that we would

11     swap from morning to afternoon.  I take it that the parties are informed

12     about that, I take it.

13             Any other matter that could not wait until tomorrow?

14             Then we will adjourn for the day and we resume tomorrow, the 16th

15     of October, 9.00 in this same courtroom, number I.

16                           --- Whereupon the hearing adjourned at 1.44 p.m.,

17                           to be reconvened on Thursday, the 16th day of

18                           October, 2008, at 9.00 a.m.