Tribunal Criminal Tribunal for the Former Yugoslavia

Page 731

1 Tuesday, 9 December 2003

2 [Open session]

3 --- Upon commencing at 2.15 p.m.

4 [The accused entered court]

5 JUDGE ANTONETTI: [Interpretation] Mr. Registrar, can you call the

6 case, please.

7 THE REGISTRAR: Yes. The case number is IT-01-47-T, the

8 Prosecutor versus Enver Hadzihasanovic and Amir Kubura.

9 JUDGE ANTONETTI: [Interpretation] Thank you very much. I shall

10 now ask for the appearances, please.

11 The Prosecution, you have the floor.

12 MR. WITHOPF: Good afternoon, Your Honours. Good afternoon,

13 Counsel. For the Prosecution, David Re, Ekkehard Withopf, and Kimberly

14 Fleming, as the case manager.

15 JUDGE ANTONETTI: [Interpretation] And the Defence, please.

16 MS. RESIDOVIC: [Interpretation] Good morning, Mr. President.

17 Good afternoon. I'm Edina Residovic, Defence counsel for

18 General Hadzihasanovic, and members of the team are Mr. Stephane Bourgon

19 and Mirna Milanovic, a member of the Defence team. Thank you.

20 MR. IBRISIMOVIC: [Interpretation] Good afternoon, Your Honours.

21 For the Defence of Mr. Kubura, Fahrudin Ibrisimovic, Mr. Rodney Dixon,

22 and our assistant Mr. Mulalic. Thank you.

23 JUDGE ANTONETTI: [Interpretation] Thank you.

24 The Trial Chamber would like to welcome the Prosecution, the

25 Defence, and the accused.

Page 732

1 If I understood you correctly, I think the Defence team would

2 like to take the floor before we bring the witness in. I shall therefore

3 give the floor to the Defence.

4 MS. RESIDOVIC: [Interpretation] Thank you, Mr. President.

5 The Defence wanted to raise three issues with you this afternoon.

6 The first has to do with the request made by the Prosecution filed

7 yesterday with regard to protective measures. We should like to inform

8 the Trial Chamber that the motion was filed by the Prosecutor yesterday

9 at 12.15 and the Defence was not in a position, therefore, to receive the

10 motion before it was discussed during the court session. We, however,

11 know that probably in the course of this trial we will have several

12 instances where the parties will not be able to send in their documents

13 to the opposite side on time, but we should like to make the Trial

14 Chamber aware of this and to ask both parties whenever possible - and I

15 think that this is possible in the majority of cases - to disclose the

16 request to the Defence, or if we are tabling the motion that we send our

17 motions in to the Prosecution, giving them and us enough time to be able

18 to have the opposite party prepare so as to be able to present the

19 relevant argumentation before the Trial Chamber, with respect to the

20 motion in question.

21 At the beginning of this trial, Mr. President - and that is why

22 we should like to raise certain procedural issues of this nature, which

23 we consider are of interest to the parties, precisely because we are

24 starting the trial; we're at the beginning of the trial, the initial

25 stages - the second question, which the Defence wish to raise, is quite

Page 733

1 simply a piece of information which we'd like to give to the Trial

2 Chamber. And we undertook this as an obligation on our part on Friday,

3 and we tabled a request to the Trial Chamber today with our proposals to

4 facilitate the Trial Chamber in resolving the question of the

5 impossibility the Defence has had in its access to documents and archives

6 of the European Monitors, observers.

7 As the Defence considers for its part that it should contribute

8 to a speedy and efficacious trial, although the Defence is fully aware

9 that this is exclusively the right of the Trial Chamber, in its motion

10 and request it also put forward a proposal according to which, according

11 to Rule 26 bis it reviewed whether a response to this motion requires 14

12 days or whether the Trial Chamber will modify that deadline.

13 Mr. President, yesterday we received a new list from the

14 Prosecution for the new exhibits and witnesses. We now ask permission

15 for those same reasons to speed up a ruling on this issue, for the Trial

16 Chamber to allow us today to state our views on that list; or, if the

17 Trial Chamber considers it to be more appropriate, to ask us to do so in

18 written form perhaps.

19 The list -- the newly compiled list from the Prosecutor is one we

20 received yesterday. Having considered it, we seem to feel that the list

21 contains certain exhibits which have not as yet been disclosed to the

22 Defence teams, and other exhibits which probably have been disclosed but

23 were not on the previous lists supplied to us by the Prosecution.

24 Second, we consider it to be very important that the Prosecutor, after

25 almost two and a half years since the accused first appeared before this

Page 734

1 Tribunal and after the pre-trial motion, should ensure a final and

2 complete list of exhibits, a comprehensive list, which they wish to use

3 in the course of this trial because we consider this to be indispensable

4 for the trial to evolve in just fashion. It is very important for the

5 Defence to have all the exhibits and evidence disclosed to it so that it

6 could take the necessary steps needed for it to investigate the

7 authenticity of the documents or to prepare itself for making proposals

8 or objections to these exhibits being tendered into evidence.

9 Now, may I turn to the list of witnesses disclosed to us by the

10 Prosecution. The Defence would like to point out that some of the

11 witnesses that have been added to this list, the additional witnesses,

12 will be called to testify, as far as we can see, from the witness

13 statements about the same facts and circumstantial evidence that some

14 other witnesses will be testifying to, witnesses who are already on the

15 Prosecutor's list. These additional witnesses will be testifying to the

16 same facts. Of course, it is up to the Prosecution to decide how many

17 and which witnesses to call and it is also up to the Trial Chamber to

18 agree in having these witnesses called or to perhaps decide which should

19 be called. We consider that, in view of our position, it would be a good

20 idea if we pointed out that some of these witnesses were testifying to

21 the same facts, just like the testimony of the witnesses on the list that

22 already existed.

23 Now, we don't object to this and this time we have ten or eleven

24 new witnesses. We don't mind. We consider that the Prosecution has

25 pursuant to Rule 65 ter and the Status Conference, he let us know and he

Page 735

1 said he would have an additional six to eight witnesses on that occasion.

2 However, we should like to point out that after the presentation of

3 evidence has got underway we can see now that the presentation of

4 evidence and the exhibits are not following the planned time limit and

5 schedule, so we would like to draw your attention to that. We should

6 like to draw attention of the Trial Chamber to that fact.

7 And the final proposal by the Defence, with respect to the motion

8 filed by the Prosecutor, is that we should like to prevail upon the Trial

9 Chamber to ask the Prosecution to send us a complete, comprehensive, and

10 final list and that any additional requirements and requests should be

11 put forward only under extraordinary circumstances, which should be

12 expounded upon by the Prosecution.

13 So that, briefly, Mr. President, are the proposals and -- that we

14 have to make, and we should like to ask the Trial Chamber to make a

15 ruling on them. Thank you.

16 JUDGE ANTONETTI: [Interpretation] Would the Defence counsel of

17 Mr. Kubura like to say something?

18 MR. IBRISIMOVIC: [Interpretation] Your Honours, this is a joint

19 proposal.

20 JUDGE ANTONETTI: [Interpretation] Thank you.

21 Before giving the floor to the Prosecution at this stage of the

22 proceeding, we will address the three items but in the reverse order.

23 The last point related to the list of witnesses as well as the

24 list of exhibits, the new list of exhibits. The Defence counsel has just

25 told us as regards the list of exhibits, there were some exhibits missing

Page 736












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13 English transcripts.













Page 737

1 that had been mentioned on this new list, and it seems like the Defence

2 team does not have these exhibits. So I would like the Prosecution to

3 contact the Defence team with a view to disclosing those missing exhibits

4 as quickly as possible. I assume this will not raise any technical

5 problem.

6 As far as a list of witnesses and exhibits are concerned, if the

7 Defence team accepts the fact or does not, they should send something in

8 writing, because this witness list was provided in writing and the

9 Defence team should also provide in writing something to the fact that

10 some of the witnesses on the previous list and the new list are

11 identical; therefore, there's no point in calling witnesses to say the

12 same thing, because in certain cases these are the same witnesses. As

13 far as the exhibits are concerned, if the Defence has any objections or

14 any issue to raise, then the Defence team should inform us in writing.

15 We will be calling these witnesses at the beginning of next year. If you

16 set a time limit which, let's assume, could be the 12th of January, that

17 would give you enough time to look into this at leisure and you could

18 then send us something in writing by the 12th of January. As you know,

19 the 12th of January marks the end of the winter recess.

20 In addition, you have also noted, I'm sure, that the Trial

21 Chamber was seized by the Prosecution and the report of the

22 General Reinhardt was filed. You therefore also have the possibility to

23 challenge the content of this report in due time, and you have up until

24 the 12th of January to do so.

25 As far as the second point is concerned - namely, the request

Page 738

1 you've filed pertaining to those exhibits relating to the European Union

2 - you were worried ahead of time by the fact that the Prosecution might

3 state its position two weeks beforehand. From what I understand with my

4 exchange with the Prosecution, I think they do not oppose any objection

5 on principle to your requests. So could the Prosecution let us know as

6 quickly as possible that this is not a problem so that we can draft this

7 decision and render it. So I think we should find a solution to this

8 point fairly quickly.

9 I shall now address the first point, which related to the fact

10 that you were surprised by the fact that you were not informed about

11 those protective measures to be granted to the witness we will be hearing

12 today. Admittedly, on reading Article 69 -- Rule 69 of the Rules of

13 Procedure and Evidence, it is mentioned that protective measures, when

14 they are requested by the Prosecution, are measures which should be

15 requested by the Prosecution. It is not stipulated that the Prosecution

16 has to inform the Defence team about this.

17 But if we turn to Article 75 and we combine the two articles, 75

18 and the previous, 69, we understand that the Trial Chamber on request of

19 one of the two parties order the appropriate measures if, and in the

20 event that these measures do not -- or that these measures are consistent

21 with the rights of the accused. We will therefore assume that the

22 Prosecution must avail itself of its position. So it's a combination of

23 the two Rules which apply here, and the Defence team and the Prosecution

24 need to discuss this. Maybe the Defence team, one day you will ask to

25 have protective measures; in that case, the Prosecution needs to be able

Page 739

1 to state its position also. So it would be desirable if in the future

2 the Prosecution, every time it wishes to request protective measures,

3 that they let the Defence team know in due time so that in the event that

4 the fundamental rights of the accused may be effected, that the Defence

5 team can stipulate this in writing, because the request of the

6 Prosecution is made in writing; the Defence has to, therefore, be made in

7 writing also.

8 If there are exceptional circumstances - which is the case,

9 because we have a very -- we are very limited by time - you could then

10 discuss this verbally and we shall render our decision. But it is, of

11 course, desirable that you get the information well ahead of time. And I

12 think this has to be discussed by both parties. And this is against the

13 backdrop of this exchange that this trial will go ahead in the best

14 conditions possible.

15 I hope this will be the case in the future also, and I understand

16 that both parties should by so doing reveal the truth as best as

17 possible. As regards this particular point, does the Prosecution wish to

18 take the floor? We will then pursue the hearing.

19 MR. RE: Very, very briefly. Thank you, Your Honours. Of

20 course, we note everything that Your Honour has just said. The

21 Prosecution will, of course, endeavour to avoid repetition in any

22 evidence that it calls.

23 The Prosecution informed the Trial Chamber and Defence, in

24 relation to those additional seven witness we propose tendering, we don't

25 propose tendering them immediately in January, by any stretch of the

Page 740

1 imagination. That would certainly be called midway through the trial,

2 maybe February, March. So the Defence should be assured that they will

3 have sufficient time to prepare in respect of that.

4 The -- just one other matter. That's in relation to the

5 confidential motion we filed on Friday, the 8th of December -- sorry,

6 Monday, Monday, the 8th -- the Prosecution's motion to amend its list of

7 witnesses and exhibits. As we've noted, and the only reason we filed it

8 confidentially was because there was some information in the body of the

9 motion relating to some information about the witnesses. We appended

10 General Reinhardt's report to that motion filed confidentially. We

11 actually should have written "partially confidential" on the -- on the

12 cover. I would ask Your Honours to lift the confidentiality in relation

13 to General Reinhardt's report so that's publicly available. There's no

14 reason why it should be filed confidentially.

15 JUDGE ANTONETTI: [Interpretation] I would like to ask

16 Mr. Registrar, who's reading the transcript, to bring in the witness,

17 please.

18 THE INTERPRETER: Interpreter's correction: It's the usher.

19 [The witness entered court]

20 JUDGE ANTONETTI: [Interpretation] Witness, can you hear what I am

21 saying? Can you hear the translation? Can you hear me?

22 Fine. Please sit down.

23 Before I give the floor to the Prosecution that will be

24 questioning the witness, I would like to ask the registrar whether those

25 protective measures, i.e. distortion of the face and voice, are still

Page 741

1 valid, please.

2 THE REGISTRAR: Yes, Your Honour, the protective measures are in

3 place.

4 JUDGE ANTONETTI: [Interpretation] Thank you very much.

5 Before hearing the witness, in order to gain time, pursuant to

6 Article 90(F)(i) feels that it is our duty to remind the witness and the

7 parties of a number of Rules contained in the Rules of Procedure and

8 Evidence. I should like to turn now to the witness and tell him the

9 following: You are a Prosecution witness. Your testimony is made under

10 oath. You have the duty, therefore, to tell the truth. If the Trial

11 Chamber feels that you have deliberately and voluntarily made a false

12 testimony, the Trial Chamber is entitled to launch a proceeding against

13 you. In the event that you would be proven guilty of a false testimony,

14 you would be liable for a fine of 100.000 Euros and a seven-year prison

15 term. I would also let you know that if you refuse to answer any one or

16 other question, despite the question put to you by the Chamber, you could

17 be liable for a contempt proceeding; in the event, the sentencing range

18 is exactly the same as for a false testimony.

19 I should like to remind you that before this Tribunal you are a

20 simple witness. You are not accused. You are entitled to refuse to say

21 anything which might go against your interests. And in that case, the

22 Trial Chamber can ask you to nevertheless answer this question, even

23 though you may feel it may incriminate you. In that case, the testimony

24 you would be making cannot be used as a piece of evidence against you

25 before this Tribunal, either in -- before this Tribunal, any other

Page 742

1 national jurisdiction, or in Bosnia. I am just saying this so that you

2 can testify freely before the Judges of this Tribunal and, given the fact

3 that protective measures have been granted, nobody knows who you are,

4 nobody outside this courtroom can actually see your face, and nobody can

5 hear your voice. Nobody can recognise your voice. This is what I wanted

6 to tell the witness.

7 As far as the parties are concerned, the Prosecution and the

8 Defence, the Trial Chamber would like to remind both parties that they

9 are in control of the examination-in-chief and cross-examination of the

10 witness so as to render the examination and the presentation of exhibits

11 in an efficient manner in order to reveal the truth. We are now talking

12 about Rule 99.

13 In addition, the Trial Chamber is in charge of the examinations

14 before this Court, with a view to avoiding any form of harassment or

15 intimidation whatsoever, pursuant to Article 75(D).

16 The Trial Chamber felt it was important to remind the parties of

17 the conditions in which this trial shall unfold. I hope this will be the

18 case in the future.

19 The witness is now informed about the fact that he can freely

20 testify. I shall therefore give the floor to the Prosecution. I think

21 the Prosecution still needs to ask the witness a number of questions.

22 Let me remind you that it is now twenty to 3.00. We shall have a

23 break in an hour's time, around quarter to 4.00. We shall have a

24 20/25-minute break at quarter to 4.00 and resume after the break. Given

25 the time needed by the Prosecution and the time needed by the Defence for

Page 743

1 its cross-examination, I believe this witness will be with us until 7.00

2 p.m., unless we finish earlier, but this witness will certainly be with

3 us all afternoon and the other witness on the list will probably be

4 called tomorrow. This will depend, of course, how things unfold.

5 In order not to lose any more time, I shall now give the floor to

6 the Prosecution.


8 [Witness answered through interpreter]

9 Examined by Mr. Re: [Continued]

10 Q. Good afternoon, Witness BA [Resumed]. When we broke yesterday

11 you had a copy of the exhibit marked for identification, Exhibit P12.

12 MR. RE: Could that please be returned to the ELMO for the

13 witness.

14 Q. Yesterday you marked the line of your advancement from the

15 confluence of the Bosna and Lasva Rivers to Dusina, to the Muslim part of

16 town, where you stayed overnight. Yesterday I was asking you about

17 soldiers from your own company and others. I want to ask you whether you

18 know of a group called the Blue Falcons.

19 A. The Blue Falcons?

20 Q. Yes, that's what I said, the Blue Falcons, as in birds like

21 hawks, or eagles.

22 Witness BA, can you hear me?

23 A. Yes.

24 Q. All right. Did you hear my question? Did you know of a group

25 called the Blue Falcons, falcons like birds like hawks or eagles, in

Page 744

1 1993?

2 A. Yes.

3 Q. What were they?

4 A. They were a sabotage reconnaissance unit.

5 Q. Were they part of the 7th Muslim Mountain Brigade?

6 A. Yes, they were.

7 Q. And were they present in Dusina on either the 25th or 26th of

8 January, 1993?

9 A. Yes, they were.

10 Q. Where did you first see them in Dusina on the 25th or 26th of

11 January, 1993?

12 A. I don't remember exactly.

13 Q. A moment ago you told me that they were a sabotage reconnaissance

14 unit. Where were the members of the Blue Falcons from? What I mean is

15 -- by that I mean from where did the Blue Falcons recruit their members?

16 A. I don't understand your question.

17 Q. You are aware that throughout the armies in the former Yugoslavia

18 -- sorry, in Bosnia that various brigades and units recruited members

19 from different specific areas. I'm asking you where the Blue -- which

20 area the Blue Falcons recruited its members from; village, town,

21 municipality, or wherever.

22 A. I can't answer that question. I don't know.

23 Q. In January 1993, when you were in Dusina, who was commanding the

24 Blue Falcons?

25 A. Serif Patkovic.

Page 745

1 Q. And what was Serif Patkovic's position in the 7th Muslim Mountain

2 Brigade when you were in Dusina in January 1993?

3 A. I don't know exactly.

4 Q. Can I just get you to clarify the answer to the question, which

5 was "I don't know exactly." You used the word "exactly." What was your

6 knowledge of the position of Serif Patkovic within the 7th Muslim

7 Mountain Brigade?

8 A. The battalion was not complete, a full complement of it. There

9 were one or two companies. It wasn't a complete battalion. So I don't

10 know what position he occupied.

11 Q. A moment ago you said you couldn't remember exactly where you

12 first saw the Blue Falcons in Dusina. Where did you see them in Dusina,

13 if you can't remember exactly where you first saw them?

14 A. I don't want to give you incorrect information. If I say

15 something, I would like to say exactly what I know, what I saw, and

16 heard. Now, if that's not the case, then I would rather not answer the

17 question in an inexact way.

18 Q. You said you couldn't remember exactly where you first saw them.

19 I've moved on from there. I'm now asking you where you saw them in

20 Dusina, as opposed to when you first saw them. So can you just direct

21 your mind to seeing them in Dusina, as you said you did, and where it was

22 that you saw them.

23 A. A day before the conflict broke out, I think.

24 Q. And where was that that you saw them?

25 A. I saw them at the confluence in Lasva and Dusina.

Page 746

1 Q. And when you were in Dusina on the next day - that's the 26th of

2 January - were the Blue Falcons there as well?

3 A. Part of them.

4 Q. Which part of them?

5 A. They were divided in two groups.

6 Q. All right. We'll take them -- we'll take them one at a time.

7 Where was the group -- where did the group of the Blue Falcons that

8 wasn't in Dusina, where did they go?

9 A. As far as I remember, two captured members of those same Blue

10 Falcons were supposed to be liberated.

11 Q. Can you expand on that? What do you mean? Where were they?

12 A. In the Lasva settlement controlled by the Croatian Defence

13 Council and those two members just happened to be in the area before the

14 conflict actually broke out, and so those two soldiers were captured by

15 the Croatian Defence Council.

16 Q. Are you saying that one part of the -- one section of the Blue

17 Falcons went there to liberate them and another section went somewhere

18 else?

19 A. That wasn't the plan, to liberate them, nor was it an attack

20 plan.

21 Q. Two of the Blue Falcons required liberating from the HVO. You're

22 saying some of the Blue Falcons went to liberate them. Did your group --

23 did you or members of your group go with them to liberate the captured

24 Blue Falcon fighters?

25 A. Nobody went to free them. Quite simply they were deployed within

Page 747

1 the Muslim part of Lasva and at the confluence.

2 Q. All right. I'll take you back to being in Dusina and the -- on

3 the 26th of January and the Blue Falcons being divided into two groups.

4 I want you to tell the Trial Chamber what the two groups were and how

5 they were -- how they were divided, that is, where each of the two groups

6 went.

7 A. 4/8:47 The first night nobody was sent anywhere. All the members

8 of the Muslim unit were within the village. The only task was that if a

9 conflict should break out -- because the HDZ had already captured two

10 members of the 7th Muslim -- if a conflict were to break out, they were

11 to protect the Muslim population in the area.

12 Q. What I'm trying to ask you about, Witness BA, is what you said a

13 few moments ago, about the Blue Falcons being divided into two groups on

14 the 26th of January. So can you please concentrate on that part and tell

15 the Trial Chamber on the 26th of January how were they divided and where

16 did the two groups go.

17 A. I don't know exactly.

18 Q. How do you know they were divided into two groups? You said a

19 moment ago that you saw Blue Falcons there on the 26th of January.

20 A. Because at Dusina I just saw some six or seven members of the

21 Blue Falcons, which means they weren't all there.

22 THE INTERPRETER: Could the witness kindly be asked to speak up.

23 Thank you.

24 MR. RE:

25 Q. Witness BA, would you be able to speak a little bit more loudly

Page 748

1 in your answers so the interpreters can hear you a bit more clearly.

2 Would you be able to do that? Thank you.

3 Before we broke last night, we got to what happened in Dusina on

4 the morning of the 26th of January, 1993. Now, you've mentioned some

5 Blue Falcons there and you've mentioned your own group being there.

6 Where did your group go on the morning of the 26th of January, 1993?

7 When I say "your group," I mean your company, that is, the Musical

8 Company.

9 A. According to what the local population said, we received

10 information that the headquarters of the HDZ was at Brdo, and that's the

11 direction we took.

12 Q. Is that where you've marked on the map? Would you please just

13 look to the map to your right on the overhead projector there.

14 A. No.

15 Q. All right. Can you please mark with the same texter and please

16 draw a line with the same arrow to the next place you went in Dusina.

17 A. [Marks]

18 Q. At about what time did you get to Dusina on the morning of the

19 26th of January -- sorry, Brdo, on the morning of the 26th of January,

20 1993?

21 A. It was early in the morning.

22 Q. How early in the morning? Can you remember?

23 A. I don't remember exactly.

24 Q. Was it light when you got there? Do you remember that?

25 A. It was already daylight.

Page 749

1 [Prosecution counsel confer]

2 MR. RE:

3 Q. Why did members of your Musical Company go to Brdo in the

4 early -- after daylight on the 26th of January?

5 A. The intention was to negotiate, to have them release the two

6 captives.

7 Q. That is, negotiate with the HVO?

8 A. Yes.

9 Q. Was that to negotiate with the HVO commander?

10 A. Yes.

11 Q. Where did the negotiations occur?

12 A. Near the house, where Zvonko Rajic was put up.

13 Q. And who was Zvonko Rajic?

14 A. The commander of the HVO that was there.

15 Q. Who negotiated on behalf of the ABiH soldiers who negotiated with

16 Zvonko Rajic?

17 A. The commander of the company.

18 Q. And who was that?

19 A. Elvedin Camdzic.

20 Q. What happened when Elvedin Camdzic went to negotiate with Zvonko

21 Rajic?

22 A. They killed him.

23 Q. Who killed who?

24 A. The members of the HVO, the commander of our company.

25 Q. All right. Could you describe what happened so that the rest of

Page 750

1 us can imagine or have a picture of where you were and what you saw and

2 how the person was killed.

3 A. Part of the Musical Company went to negotiate with the HVO; that

4 means that the whole company didn't go, just part of it. Part of the

5 company remained behind in the Muslim section of Dusina. Quite simply,

6 they stayed behind, because they didn't want to shoot.

7 When the negotiations started -- or rather, when members of the

8 HVO were called to negotiate with our company commander, he went behind

9 the house. He didn't intend to shoot. His rifle was lowered, beside his

10 leg. But the members of the HVO started shooting nonetheless, and one

11 bullet hit him.

12 Q. What was the reaction of your side -- what did your side do in

13 response to your commander being shot?

14 A. Apart from the commander, we had two other wounded men, and then

15 we opened fire in order to be able to pull out the two wounded men.

16 Q. Where were the civilians of the village of Dusina and Brdo when

17 this exchange of fire was going on between the HVO and the 3rd Corps

18 soldiers?

19 A. In the two houses where, strictly speaking, there were no

20 civilians.

21 Q. Where was Zvonko Rajic at the time of this exchange of fire when

22 your commander was killed?

23 A. In the house from which the firing came.

24 Q. Did members of your company make contact with Zvonko Rajic in

25 that house?

Page 751

1 A. Yes, they did.

2 Q. All right. Can you describe to the Court how they did, how they

3 managed to contact him, and what, if anything, was said to him, and what

4 his response was.

5 A. I don't remember exactly how it happened. I don't remember which

6 words were used.

7 Q. I'm not asking you to use the exact words, obviously, so long

8 after the event, but doing your best of what you remember was the general

9 effect of what was said, please.

10 A. I don't want to make a mistake in uttering any words myself.

11 Q. Do you have any impression now of the content of any

12 communication, as opposed to the words used; that is, what they were

13 talking about?

14 A. Our company commander came out from behind a house. He went out

15 into an open space, and he called out to Zvonko Rajic. And when he was

16 called out to negotiate, the answer he got was a burst of gunfire as a

17 response.

18 Q. Following the burst of gunfire, what happened then? What was the

19 next thing that happened after you tried to negotiate with Rajic and

20 there was a burst of gunfire from their side?

21 A. Then there was an exchange of gunfire.

22 Q. How many HVO members were firing at your company?

23 A. Five or six of us.

24 Q. I'm sorry, your answer said "five of six of us." I was asking

25 you about how many HVO members were firing at your company.

Page 752

1 A. Five or six.

2 Q. Were they firing from the house where Zvonko Rajic was?

3 A. From the house they were in and from a position a little above

4 the house.

5 Q. Following this exchange of gunfire, did negotiations continue at

6 any point between the HVO side and your company?

7 A. After about an hour, an hour or two hours. I don't know exactly.

8 Q. Was Rajic still in his house when the negotiations recommenced?

9 A. Yes, he was.

10 Q. How were the negotiations conducted? By that I mean did someone

11 go into the house or was someone communicating with him from outside the

12 house?

13 A. They were in the house. We were outside, up by some other

14 houses. So it was mostly outside.

15 Q. What were the respective numbers of the soldiers? You said there

16 were five or six of them. How many of them -- how many of you, that is,

17 ABiH soldiers, were in the vicinity of the house -- of the area where the

18 HVO soldiers were?

19 A. About ten.

20 Q. You told us about negotiations with Rajic. Did you reach

21 agreement with Rajic?

22 A. After about two hours, after there was this exchange of gunfire

23 for about two hours.

24 Q. And what was the agreement that your side reached with the --

25 with Rajic and his HVO members?

Page 753

1 A. The agreement that was reached was that both of us should take

2 off our ammunition clips and move in the direction of Lasva to solve the

3 problem with the captives.

4 Q. That was the agreement. Did you in fact remove your magazine

5 clips?

6 A. Yes, we did.

7 Q. Did Rajic and the HVO people come out?

8 A. Yes.

9 Q. What happened to Rajic's and the HVO members' weapons when they

10 came out?

11 A. They carried them with them.

12 Q. Where did your group and Rajic and the other HVO members go?

13 A. We took the road towards Lasva.

14 Q. All right. What I want you to do now is to get the map again,

15 which is to your right, get the black texter, and mark where the road to

16 Lasva is -- mark the route you took from then.

17 A. [Marks]

18 Q. Thank you. Now, you said, I think, there were -- are you able to

19 tell us today the exact number of HVO soldiers that were accompanying you

20 along the road towards Lasva?

21 A. Five.

22 Q. And the five include Zvonko Rajic; is that correct?

23 A. Yes.

24 Q. I'm going to ask you again about civilians in the village after

25 or about the time of the exchange of gunfire between your group and the

Page 754

1 HVO and the successful negotiations for the HVO members to come out.

2 What can you tell the Trial Chamber about the presence of civilians in

3 that area over those few hours?

4 A. Near the house Zvonko Rajic was in, the civilians were brought,

5 the Croats.

6 Q. I'd like you to expand upon that. You said the civilians -- the

7 civilian Croats were brought. I want you to tell us how many Croat

8 civilians and who brought them to the house.

9 A. I don't know exactly how many civilians there were. I don't know

10 how many soldiers there were who brought them there. They didn't bring

11 them to the house but to near the house, where there was an exchange of

12 gunfire.

13 Q. All right. Which side were the soldiers from?

14 A. I'm not clear on what you mean.

15 Q. You said soldiers brought the Croat civilians to the house -- or

16 near the house. Were the soldiers HVO soldiers or ABiH soldiers?

17 A. Members of our unit.

18 Q. You said you don't know exactly. I want you to tell the Trial

19 Chamber roughly how many soldiers there were and how many soldiers there

20 were escorting roughly how many civilians. You don't need to be precise.

21 THE INTERPRETER: Could the witness please repeat his answer.

22 MR. RE:

23 Q. Witness BA, we didn't hear your last answer. Could you just say

24 it a bit more loudly so the interpreters can hear you.

25 A. Between 1 and 40.

Page 755

1 Q. I'm sorry, I don't quite understand that answer. Firstly can we

2 divide it into two. Approximately, roughly, how many civilians were

3 being escorted to the place near the house? Then I'll ask you about the

4 soldiers. I mean, was it less than ten, more than ten, less than five,

5 more than five, less than twenty, more than twenty? That's the sort of

6 information we're interested in.

7 A. I think more than ten.

8 Q. All right. Now, what about the soldiers? Again, less than five,

9 more than five, less than ten, more than ten, less than twenty, more than

10 twenty, or whatever.

11 A. I can't tell you about the soldiers. I don't know how many

12 exactly there were. You couldn't see them. Perhaps you could see two of

13 them. Now, any others that might have been there, you couldn't actually

14 see.

15 Q. All right. Well, the ones -- the soldiers you saw, were they

16 members of your company or of the Blue Falcons?

17 A. I don't remember exactly.

18 Q. Can you tell us whether you know of not the names but who any of

19 the civilians were in this group. I don't need the names, just if you

20 know the identity, as in their relationship to someone.

21 A. All I know is that Zvonko Rajic's wife was there.

22 Q. Zvonko Rajic's wife was in this group of civilians who were being

23 brought to a place near the house where he was; is that what you're

24 saying?

25 A. Yes.

Page 756

1 Q. Was Zvonko Rajic made aware of the fact during negotiations that

2 his wife was outside in the presence or company of armed ABiH soldiers?

3 A. Yes, he was.

4 Q. Was that one of the negotiating points?

5 A. I don't understand the question.

6 Q. Was the fact that Zvonko Rajic's wife was outside, in the

7 presence of armed ABiH soldiers, one of the points that was used when

8 your company negotiated with Zvonko Rajic to come out?

9 A. The sporadic shooting lasted about two hours, so Zvonko Rajic

10 didn't want to negotiate until the civilians were brought in and until he

11 realised that his wife was amongst them.

12 Q. How did he come to find out that his wife was outside amongst the

13 armed ABiH soldiers when he was inside?

14 A. Because our members informed him that she was there.

15 Q. Was that one of the factors that -- was that one of the things

16 that led him to come out, from what you saw?

17 A. At first he didn't want to go out. Then the negotiations

18 started, that both sides should take off their magazine clips from their

19 weapons.

20 Q. All right. Witness BA, I'm not asking you that. I'm asking you

21 about Zvonko Rajic's wife and the fact that your soldiers told him that

22 his wife was -- I'm sorry, I withdraw that.

23 My question is: How did you -- how did Zvonko Rajic become aware

24 that his wife was outside in the presence of armed ABiH soldiers? How

25 did he come to know that? Did he see it or did someone tell him or what?

Page 757

1 A. He was told. But I think he could also see it, because they were

2 brought quite close up to the house, so he could see that for himself.

3 That's what I think.

4 Q. All right. You said he was told. What I just want you to tell

5 the Trial Chamber is who told him and what did they say. Not using the

6 precise or exact words but the effect of what was said to him inside the

7 house.

8 A. Well, the effect was that he undertook to negotiate immediately

9 afterwards.

10 Q. Well, what was said to him about his wife being outside in the

11 presence of armed ABiH soldiers that led him to undertake to negotiate

12 immediately?

13 A. He didn't start to negotiate straight away, as I said a moment

14 ago. This went on -- the sporadic shooting went on for some time. And

15 it was only after some 50 minutes had gone by that he started to

16 negotiate.

17 Q. All right. If I can take you back to the map on which you drew

18 your route with Zvonko Rajic and the four other HVO members, back towards

19 the road to Lasva. You've just told us about some civilians -- some

20 contact with civilians when Zvonko Rajic was in the house. Did you have

21 -- did you meet anyone on the way? When I say "on the way," I mean on

22 the road, the route you've just -- you've marked from Brdo to Lasva.

23 A. No, we didn't. I don't remember, actually.

24 Q. Did you go straight to Lasva from Brdo or did you stop somewhere?

25 A. We stopped. So we were going from Brdo towards Lasva and we

Page 758

1 stopped some 2 to 3 hundred metres before Lasva.

2 Q. Why did you stop, Witness BA?

3 A. Because we received information that members of the HVO had set

4 up a barricade or, rather, an ambush.

5 Q. Can you recall how you got that information?

6 A. One of the locals told us.

7 Q. How did you react to this information?

8 A. We lost -- the members of the HVO who were with us -- actually,

9 we didn't think that they were keeping to their part of the agreement

10 with respect to the weapons in Lasva, so we took their weapons from them

11 and a part started to return.

12 Q. Return to Dusina?

13 A. No, back to Brdo.

14 Q. All right. What did Zvonko Rajic do on the way back to Brdo?

15 A. We took the road and after 1 or 2 hundred metres Zvonko Rajic

16 attempted to escape.

17 Q. How did he do that?

18 A. He just separated from his group and started running.

19 Q. Which direction did he run?

20 A. Across a meadow, in the direction of Lasva.

21 Q. What was the reaction of your group to Zvonko Rajic attempting to

22 escape?

23 A. We shouted out to him to stop. He paid no attention. And we

24 started shooting.

25 Q. When you say "we," how many of you fired at Zvonko Rajic -- I'm

Page 759

1 sorry. You said "shooting." In what direction did you shoot and how

2 many of you shot?

3 A. I think two or three.

4 Q. Were you one of the shooters?

5 A. Yes, I was.

6 Q. In which direction did you shoot?

7 A. In the direction of Zvonko Rajic.

8 Q. Was he still running when you shot at him?

9 A. As far as I remember, yes, he was.

10 Q. Did you hit him?

11 A. Yes, we did.

12 Q. Where was he shot? On which part of his body was he shot?

13 A. He was shot in several places, all in his lower extremities, the

14 bottom half of his body.

15 Q. Do you mean his legs?

16 A. Below his hips and in his legs.

17 Q. Did he fall to the ground as a result of being shot?

18 A. Yes, he did.

19 Q. Where were the four other HVO members when you shot Zvonko Rajic?

20 A. They were together with the rest of our members on the road.

21 Q. You just told us that you shot Zvonko Rajic and he was lying on

22 the ground wounded by shots to his lower extremities. What did your

23 group do?

24 A. I'm not quite clear. I'm not following the last thing you said.

25 Q. Zvonko Rajic was lying on the ground shot. What did you and the

Page 760

1 members of your company do then? Did you leave him there? Did you go to

2 him? Did you do something else?

3 A. We went up to him.

4 Q. What about the four HVO members? Did they go with you to Zvonko

5 Rajic?

6 A. We called them, yes.

7 Q. You called them over?

8 A. Yes.

9 Q. Did you ask them to do something?

10 A. Yes, we did.

11 Q. What did you ask the HVO members to do?

12 A. As he was wounded, we asked them to pick him up.

13 Q. And what did they do?

14 A. They took him up and took him.

15 Q. About what time of the morning was this when you shot Zvonko

16 Rajic?

17 A. Perhaps around 9.00. 9.00; perhaps a little later. I can't

18 quite remember.

19 Q. All right. Where did your soldiers and the HVO members who were

20 carrying Zvonko Rajic go then?

21 A. Well, they took the road back.

22 Q. Back where? Was it back to Brdo or back to Lasva?

23 A. Back towards Brdo.

24 Q. How far did you get?

25 A. Perhaps 200 metres. I really can't say.

Page 761

1 Q. Did you stop after about 200 metres or so?

2 A. Part of the unit withdrew, and the other part stayed in the lower

3 half to provide security. We lost our -- we were no longer certain what

4 we -- we weren't certain that the HVO wouldn't attack us, so part of the

5 unit stayed in that lower area.

6 Q. You've told us about the presence of Blue Falcon members in

7 Dusina on the 26th of January. Did you see any members of the Blue

8 Falcons on your way back to Brdo with the injured Zvonko Rajic and the

9 four HVO members?

10 A. No, I didn't.

11 MR. RE: Your Honour, could I just have a moment to consult the

12 transcript, please.

13 [Prosecution counsel confer]

14 Q. I've already asked you --

15 MR. RE: I thank Your Honours.

16 Q. I've already asked you about Serif Patkovic, who you said was the

17 commander of the Blue Falcons. Did you see him in Dusina when you were

18 with the injured Zvonko Rajic and the four HVO members?

19 A. No, I didn't.

20 Q. What about in Brdo -- or sorry, on the road towards Brdo?

21 A. I didn't.

22 Q. Where you did you take the injured Zvonko Rajic to?

23 A. I stayed providing security along the road should there be a

24 conflict, if there was shooting again. So I stayed on the road to

25 provide security there, I and four other members.

Page 762

1 Q. You were with Zvonko Rajic, who had been shot in the leg, and

2 four injured HVO members, and you were walking back with them towards

3 Brdo. You said you stopped. Why did you stop?

4 A. We stopped straight after Zvonko Rajic had been wounded, when he

5 started to flee. That's where we stopped, as Zvonko Rajic and four or

6 five others took the road, and I, as I said, stayed on the road to secure

7 the road there.

8 Q. Mr. -- sorry, Witness BA, you are aware of why you are giving

9 evidence before this Trial Chamber, aren't you?

10 A. Yes.

11 Q. You are aware that you're here to give evidence about the

12 shooting of Zvonko Rajic and an incident involving Serif Patkovic, aren't

13 you?

14 JUDGE ANTONETTI: [Interpretation] The Defence. Counsel, you have

15 the floor.

16 MS. RESIDOVIC: [Interpretation] The Prosecutor has just started

17 to cross-examine the witness, so that we object. In an

18 examination-in-chief, questions like that of the witness are improper.

19 MR. RE: I'm not cross-examining the witness. I'm asking the

20 witness if he knows why he's here in accordance with the summary that we

21 filed. And Your Honours have a copy of the summary. The witness can

22 answer yes or no; we can remind him of why he's here; we can move on. I

23 just don't want to waste the Trial Chamber's time.

24 JUDGE ANTONETTI: [Interpretation] I shall address the witness

25 directly, in the light of this difficulty.

Page 763

1 The witness is here to testify about what he has seen. Can the

2 witness answer this question, please.

3 THE WITNESS: [Interpretation] I know that.

4 JUDGE ANTONETTI: [Interpretation] Fine. The witness knows that

5 he must tell the truth, because you made a solemn declaration whereby you

6 were going to tell the truth.

7 THE WITNESS: [Interpretation] And precisely because of that

8 solemn declaration I am telling the truth.

9 JUDGE ANTONETTI: [Interpretation] As you are telling the truth,

10 answer either by saying yes or no or answer the question exactly, please.

11 We shall now adjourn and both parties will be able to have a rest

12 during this break. And we shall resume the examination-in-chief at five

13 minutes past 4.00. We shall have a 20-minute break.

14 --- Recess taken at 3.43 p.m.

15 --- On resuming at 4.05 p.m.

16 JUDGE ANTONETTI: [Interpretation] It is now five past 4.00. We

17 are resuming this hearing. We will have another break at half past 5.00,

18 have a 20-minute break and resume around ten to 6.00 or five to 6.00 and

19 finish at 7.00. Given this time frame, I don't know whether we can

20 complete the cross-examination during that time.

21 Can the Defence tell us how much time they will be needing -- the

22 Prosecution, sorry -- how much time the Prosecution will be needing for

23 the rest of its examination?

24 MR. RE: Unfortunately, I can't. Your Honours can see how slowly

25 it's going. I think Your Honours are aware of the scope of the evidence

Page 764

1 I'm trying to elicit and how long it's taking. We've gone way beyond our

2 estimate now. I just can't give a realistic estimate at the moment. I

3 apologise for that.

4 JUDGE ANTONETTI: [Interpretation] Well, under these

5 circumstances, if we haven't finished, the witness will have to come back

6 tomorrow.

7 So please proceed with your questions.

8 The Defence, you would like to take the floor.

9 MR. BOURGON: [Interpretation] Yes, very briefly. During the

10 break, the Trial Chamber -- just before the break, the Trial Chamber had

11 told the witness that the Prosecution could ask a question directly to

12 the witness, and the witness would be asked to answer either by saying

13 yes or no. We believe, Your Honour, that this procedure amounts to the

14 fact that the Prosecution will be entitled to ask leading questions. The

15 situation we are confronted with is the following: The Prosecution is

16 asking questions and does not get the answers it wishes to get; the

17 witness has been warned formally by the Trial Chamber and has been told

18 exactly what he was to do. He answered that he was telling the truth and

19 that he had understood that he had to tell the truth. Under these

20 circumstances, Your Honour, we believe that, A, the Trial Chamber should

21 maintain its decision taken last week - in other words, not allow the

22 Prosecution to refresh the memory of the witness as regards his

23 statement, and also not entitle the Prosecution to ask leading questions.

24 Thank you, Your Honour.

25 JUDGE ANTONETTI: [Interpretation] Yes. When we, the Trial

Page 765

1 Chamber, asked that the Prosecution ask questions and the witness answer

2 either by saying yes or no, these questions were not to be leading

3 questions, of course. That stands to reason.

4 So I shall give the floor back now to the Prosecution.

5 MR. RE:

6 Q. I want to show you a diagram, Witness BA. It's a diagram you

7 prepared on which you've marked a number of events and a diagram which

8 corresponds with the map on which you've drawn, which is P12 -- I'm

9 sorry, was it -- I haven't tendered it, but P12 MFI. It should be on the

10 screen in front of you now, Witness BA. Can you look down, please.

11 JUDGE ANTONETTI: [Interpretation] Just wait a minute, please.

12 Before giving the floor to the Prosecution, yesterday we were referring

13 to a document, P12, which had not officially been tendered into evidence.

14 This is not the document we have just been given. It was in effect the

15 map, which we have just seen on the ELMO. So this is yesterday's

16 document. This document has got nothing to do with it. I answered and

17 anticipated the question of the Defence. Am I right? So we are now

18 talking about this exhibit, P12, which had not been tendered into

19 evidence.

20 MR. RE: No, we're not. We're talking about the diagram which is

21 now being displayed on Sanction, which the witness has in front of him.

22 Q. Witness BA, in front of you is a diagram which you prepared on

23 which you have marked various locations which correspond with the map,

24 which is P12 on the --

25 JUDGE ANTONETTI: [Interpretation] Fine. Where does this diagram

Page 766

1 come from? What is the source of this document?

2 MR. RE: The witness. The witness drew a diagram, marking on it

3 very places. I can hand a translation in English to Your Honours. It's

4 location -- X1, location where commanding officer Camdzic was killed; 2,

5 where bullet was fired; 3, where Rajic was fired; 4 -- and so on.

6 JUDGE ANTONETTI: [Interpretation] The Defence, you have the

7 floor.

8 MS. RESIDOVIC: [Interpretation] As far as we understood it from

9 the documents we received from the Prosecution, this diagram is a

10 component part of the previous statement and cannot be used to refresh

11 the witness's memory of what he said in his previous statement or

12 testimony.

13 MR. RE: The Prosecution isn't attempting to do that. The

14 Prosecution is attempting to facilitate proceedings by rather than have

15 the witness draw in court the various things which he has described to

16 date to show him a document he prepared on which he has written the

17 various things and to use that as an aide-memoire for the proceedings and

18 to tender it at the appropriate stage. I'm not attempting to refresh the

19 witness's memory, and it's not a statement. It's a diagram he drew,

20 which if Your Honour looks Your Honour can see from the -- Your Honours

21 can see from the wavy lines, the road, it actually corresponds with P12,

22 which hasn't been tendered yet. And I have another document which the

23 witness marked out of court on which -- actually handing it up -- which

24 he has actually drawn in yellow on the map, which is an identical copy of

25 P12, to correspond to -- to correspond this with that. And I wish to use

Page 767

1 both as an aide-memoire to the witness in his evidence to facilitate

2 presentation of evidence before the Trial Chamber and to ensure that the

3 Trial Chamber has the most accurate and correct and truthful version of

4 events before it.

5 JUDGE ANTONETTI: [Interpretation] If the Trial Chamber has

6 understood you correctly, this document entitled "Exhibit P22" is a

7 document which the witness has drafted at the time he was being

8 questioned by the Office of the Prosecutor; in other words, sometime

9 ago. In other words, you want to use this document, which was part and

10 parcel of his former statement, together with a map, which we saw

11 yesterday and which he mentioned the events.

12 So this does pose the question: Can we include this document

13 marked P22, which is a document that goes back to his written statement,

14 in relation to the document he authenticated recently? The Defence seems

15 to challenge this, as it mentioned, because the witness can be asked

16 during the examination-in-chief, to be asked to indicate the itinerary on

17 the map. If he agrees, he does pinpoint the specific locations. Is that

18 the point of view of the Defence?

19 MS. RESIDOVIC: [Interpretation] Yes, Your Honour. If the

20 Prosecution so wishes, the witness can show and draw in the road that he

21 described and testified about before this Trial Chamber here today. If

22 the Prosecution wishes to ask him to do so, he can do so straight away

23 now. But the problem is that it is the component part of a statement --

24 of the previous statement. So it's not the diagram that's the problem,

25 it's that there's a text underneath and that contains what the witness

Page 768

1 wishes to tell the witness [as interpreted], to remind him of his

2 previous testimony and statement. And I don't think that is a proper way

3 ask that it can be tendered and introduced into the trial proceedings in

4 this way. Thank you.

5 MR. RE: As I've said, I'm not attempting to use it to refresh

6 the witness's memory. I'm using it to facilitate the calling of evidence

7 before the Trial Chamber. In the Prosecution's submission, I can -- I

8 should be able to show him this document, which he drew on yesterday, in

9 conjunction with one which he identified -- which he wrote on earlier.

10 We'll get to the same point.

11 JUDGE ANTONETTI: [Interpretation] Fine. Given the objection

12 raised by the Defence, the Trial Chamber feels that the witness can be

13 given a white sheet of paper. The witness will be asked to mention a

14 number of things pertaining to your questions. We shall now take this

15 document, P22, away. We shall give the witness a white sheet of paper.

16 So you may ask him your questions very quickly and ask him to

17 visualise or locate on this white sheet of paper those particular areas

18 you are interested in. The Prosecution, you can do this rather quickly,

19 I believe.

20 MR. RE:

21 Q. Witness BA, you heard what His Honour said. What we want you to

22 do is to draw on that piece of paper, draw a map marking the road to

23 Lasva, Brdo, Dusina, the road to Visjnica, the junction of the Lasva and

24 Bosna Rivers. Can you please draw those on as quickly as you possibly

25 can.

Page 769

1 A. [Witness complies

2 JUDGE ANTONETTI: [Interpretation] So it's taken us just under one

3 minute. So please put this document on the ELMO.

4 MR. RE:

5 Q. All right, Witness BA. I want you to mark on it with the same

6 pen the following thing, please: I want you to mark with an X1 where

7 Elvedin Camdzic was killed, please.

8 A. [Marks]

9 Q. Could you perhaps do a circle around that to make it a little bit

10 clearer.

11 A. [Marks]

12 Q. Okay. X2, I want you to mark the spot where you shot Zvonko

13 Rajic, please.

14 A. [Marks]

15 Q. All right. Can you mark -- I'm sorry, that was my fault. Can

16 you please put "X2" in fairly large letters next to that.

17 A. [Marks]

18 Q. Can you please mark the spot where Zvonko Rajic was killed,

19 please, with "X3."

20 A. [Marks]

21 Q. Can you please mark with "X4" the position where the people

22 captured from Dusina were brought to.

23 A. [Marks]

24 Q. Thank you. Can you please now write and sign your name on the

25 bottom of that piece of paper -- I'm sorry, don't, don't. My mistake.

Page 770

1 Would you please write "Witness BA" on the bottom of it.

2 JUDGE ANTONETTI: [Microphone not activated] .

3 THE INTERPRETER: Microphone, please, Your Honour. Microphone

4 for the President.

5 JUDGE ANTONETTI: [Interpretation] Yes. I was saying that as we

6 are not in private session, if you would like the witness to authenticate

7 his signature, you have to ask to have a -- to be in private session.

8 MR. RE: It will suffice if he just -- for Prosecution's purposes

9 if he just writes "Witness BA" on it, for the court record, and no one

10 will know who he is.

11 JUDGE ANTONETTI: [Interpretation] Is that all right with you, the

12 Defence team, "Witness BA"?

13 So Witness, please, can you just write at the bottom of this

14 sheet of paper "Witness BA," please.

15 THE WITNESS: [Witness complies]

16 MR. RE:

17 Q. Thank you. And can you please put the date on it as well.

18 [Trial Chamber and registrar confer]

19 JUDGE ANTONETTI: [Interpretation] Please proceed.

20 MR. RE: May that be tendered into evidence, please.

21 JUDGE ANTONETTI: [Microphone not activated]

22 [Trial Chamber and registrar confer]

23 MS. RESIDOVIC: [Microphone not activated]

24 JUDGE ANTONETTI: [Interpretation] Yes. "Svedok BA" is written on

25 here. I presume that in B/C/S "svedok" means "witness," does it?

Page 771

1 To make sure that this remains confidential, we shall -- Please,

2 Madam Registrar, could you give me a confidential exhibit number, please.

3 THE REGISTRAR: [Previous translation continues] ... P13, under

4 seal.

5 JUDGE ANTONETTI: [Interpretation] It's taken us all in all two

6 minutes. This was a much better solution.

7 Please proceed.

8 MR. RE:

9 Q. Thank you, Mr. -- sorry, Witness, Witness BA for marking that

10 diagram for us. On that diagram, you marked the position where Zvonko

11 Rajic was killed. I want to tell the -- to describe, please, to the

12 Trial Chamber how Zvonko Rajic was killed; that is, who killed him and

13 how.

14 A. I can't describe that, because I was present.

15 THE INTERPRETER: Could the witness repeat his answer, whether he

16 was or was not present. Thank you.

17 MR. RE:

18 Q. Witness BA, your last answer was "I can't describe that because I

19 was present." What I'm asking you to tell the Trial Chamber is to tell

20 it, tell Their Honours, how Zvonko Rajic was killed.

21 A. I said I was not present. I didn't say "present." I said "not

22 present."

23 [Prosecution counsel confer]

24 MR. RE:

25 Q. When you said "present," where were you when Zvonko Rajic was

Page 772

1 killed, Witness BA?

2 A. I stayed at a place some 2 or 3 hundred metres lower down, and I

3 marked it in the spot where I said "Zvonko Rajic, wounded."

4 Q. You've marked Zvonko Rajic -- the place where he was killed on

5 the map. Presumably that means that you know that he was in fact killed,

6 doesn't it?

7 A. After about an hour, I went up to the spot where Zvonko Rajic

8 was, and according to what I saw myself you couldn't actually say whether

9 he was dead, whether he'd already succumbed to his wounds, or not.

10 Q. On the map you haven't marked -- you didn't say he succumbed to

11 his injuries on that spot, but you marked on the map the spot where he

12 was, in fact, killed. I want you to tell the Trial Chamber how you were

13 able to mark on that map that that was the spot where he was killed, as

14 opposed to succumbed to his injuries.

15 JUDGE ANTONETTI: [Interpretation] The Defence has the floor.

16 MS. RESIDOVIC: [Interpretation] Once again we seem to be

17 cross-examining, and the Defence has noted that the witness did not say

18 whether he had been killed or not. The witness placed an "X" on the spot

19 he, the Prosecutor, suggested that he should say where the killing took

20 place. So this is the first time that the witness is actually telling us

21 what he knows about Zvonko Rajic's death and making that clearer.

22 JUDGE ANTONETTI: [Interpretation] I now turn to the Prosecution.

23 In the document marked P13, the witness indicated in which spot the man

24 was killed. The mere fact that he indicated in which spot that he was

25 present at the time, and he did say a while ago - I look at the

Page 773

1 transcript - he was 200 metres away from the spot where the body was, and

2 he discovered that Rajic was there. He didn't know whether the man was

3 alive or not. This is what he told us.

4 So you can ask further questions, but he tells us under oath that

5 he was not there at the time the man in question was killed.

6 MR. RE: Your Honours, I -- I intent to move on from the area of

7 Dusina at the moment. I may revisit it later at some point. I'll move

8 on to another topic.

9 Q. Mr. Witness BA, yesterday you gave some evidence to the Trial

10 Chamber about the fact that your company was stationed in the Zenica

11 Music School at the time of the attack on Dusina in January 1993. This

12 isn't the question; this is just to introduce it to you.

13 Your evidence was that at the time you were stationed in the

14 Zenica Music School the basement was used as a storage facility. When

15 your unit moved out of the Zenica Music School, who moved in or who took

16 control of the school?

17 A. The military police.

18 Q. Was that the military police of the 7th Muslim Mountain Brigade?

19 A. Yes.

20 Q. What was the 7th -- what were the military police using the

21 Zenica Music School for?

22 A. They were using it as a place where the members of the military

23 police were accommodated.

24 Q. What were they using the basement for -- for what -- I withdraw

25 that. No, I don't. What were they using the basement for after they

Page 774

1 moved in and you moved out?

2 A. As a prison.

3 Q. A prison for who?

4 A. For prisoners.

5 Q. Civilians or prisoners of war?

6 A. I don't know exactly.

7 Q. I'm going to ask you about something that happened in April 1993

8 near Zmajevac. Can you tell the Trial Chamber about meeting some people

9 in Zmajevac or near Zmajevac, which is in Zenica, in about April 1993.

10 A. Well, I couldn't refer to it as meeting.

11 Q. Well, tell the Trial Chamber what happened.

12 A. During the second conflict with the HVO - that means we were on

13 Zmajevac Hill - and in a house, civilians were sort of captured: Two

14 men, two women, and a child.

15 Q. Who captured them?

16 A. Our unit members.

17 Q. Were you one of them?

18 A. Yes, I was.

19 Q. What did you do with these people you captured?

20 A. From my co-fighters, I was told to take them out of the zone

21 where there was shooting.

22 Q. Where did you take them to?

23 A. In the direction of Tetovo.

24 Q. Where is Tetovo in relation to Zenica? There's a -- there's a

25 large map just behind you, if you wish to refer to that. It may assist.

Page 775

1 It's P1.

2 A. In this part here.

3 Q. All right. Can you just describe it. It's just above Zenica on

4 the map; is that correct? I'm sorry, I can't quite see from here. Can

5 you just describe what's immediately below where you were pointing to.

6 A. It's downstream from Zenica, so downstream, down the River Bosna

7 on the left-hand bank, near the Zenica iron works.

8 Q. All right. And on the map you just pointed to, it's just north

9 of Zenica; is that correct?

10 A. Here.

11 Q. For the record, you're indicating -- or you indicated on the

12 large map, P1, just below the words -- the large word "Zenica," in

13 between Zenica and where it's written "smokestack."

14 MR. RE: Thank you, Mr. Usher.

15 Q. Witness BA, you said you were told to take the witnesses --

16 sorry, the civilians in that -- towards Tetovo, which is where you just

17 showed us on the map. Where did you go to?

18 A. Yes.

19 THE INTERPRETER: Could the witness please repeat his answer.

20 THE WITNESS: [Interpretation] I reached the crossroads, in the

21 centre of Tetovo.

22 MR. RE:

23 Q. What happened when you reached the crossroads? What did you meet

24 -- who did you meet?

25 A. The battalion commander.

Page 776

1 Q. And was that Serif Patkovic?

2 A. Yes.

3 Q. And what did he tell you to do?

4 A. That I should let the two women and child go and take the two men

5 into the school --

6 Q. -- take the two men --

7 THE INTERPRETER: Could the witness please be asked to speak up.

8 Thank you.

9 MR. RE:

10 Q. Sorry. Witness BA, would you be able to speak up. I know you've

11 got a soft voice, but the interpreters have to be able to hear you.

12 We heard your answer to take them to -- into the school. Are you

13 referring to the Zenica Music School?

14 A. Yes.

15 Q. Did you take the two men to the Zenica Music School?

16 A. Yes.

17 Q. What did you do with the two men when you got to the Zenica Music

18 School?

19 A. I handed them over to the members of the military police at the

20 entrance.

21 Q. Were these two people you handed over -- sorry, what was the

22 ethnicity of these two men that you handed over to the military police?

23 A. I think one of them was a Croat and the other a Serb.

24 Q. Were they HVO members, VRS members, or civilians?

25 A. I don't know.

Page 777

1 Q. Whereabouts physically, in relation to the entrance to the music

2 school did you hand them over? I mean, was it inside the building,

3 outside the building; where?

4 A. At the entrance to the building.

5 Q. What did the military police do when you handed these two

6 prisoners over to them?

7 A. One of the military policemen started beating the two.

8 Q. How did he do that?

9 A. How? How you beat people.

10 Q. Well, what did he use to beat them with and where did he beat

11 them on their bodies?

12 A. Mostly on their backs. I don't remember him using any

13 instrument.

14 Q. How old were these prisoners?

15 A. One was I think 55 to 60 years old, and the other one was

16 younger, perhaps 35.

17 Q. What was your response to this military police officer beating

18 the prisoners you handed over to them?

19 A. Quite simply I said to one of the policemen that he should stop

20 beating the people. I can't explain. Probably I felt sorry for them.

21 It's as simple as that.

22 Q. You've just told us you visited the music school in April 1993 by

23 taking two prisoners there. Now, what about in June 1993? Did you visit

24 the music school and go inside?

25 A. Once.

Page 778

1 Q. You've told us about the use of the basement as a detention

2 centre during the war. Did you go to the basement?

3 A. Up to the entrance to the basement.

4 Q. All right. Could you describe the entrance to the basement to

5 the Trial Chamber.

6 A. You go down the stairs, and you come to a door.

7 Q. What sort of door was it?

8 A. I don't remember exactly what kind.

9 Q. Why did you go there in June 1993? What had you heard about the

10 music school that led you to go there?

11 A. Out of curiosity.

12 Q. What had fed your curiosity? What had you heard that made you

13 curious to go to the basement where the prisoners were being kept?

14 A. I don't remember exactly.

15 Q. Were there any prisoners in the basement when you went to the

16 basement door?

17 A. Yes, there were.

18 Q. How many prisoners were there?

19 A. I don't know exactly. I saw two or three from the entrance, but

20 I can't remember exactly.

21 Q. What was the ethnicity of the prisoners you could see there?

22 A. I don't know. I didn't ask them.

23 Q. Can you say whether they were POWs or civilians?

24 A. I don't know exactly.

25 Q. What, if anything, had you heard about the ethnicity of the

Page 779

1 prisoners in detention there?

2 A. I don't remember.

3 Q. What can you say about the reputation of the guards at the Zenica

4 Music School?

5 A. Well, what can you say? I don't know. I don't know in what

6 sense you mean.

7 Q. Well, I'm asking you whether you had heard anything about the

8 reputation. Did they have a reputation for anything that you had heard

9 of?

10 A. It's one thing what I heard and another what I saw. A moment ago

11 I said I saw them beat two of the men there. I can't say they beat all

12 of them when I didn't see it happen.

13 Q. No. But you've told the Trial Chamber that you went there in

14 April 1993 and you handed over two prisoners who were beaten at the door.

15 You then told us that you were curious and you went back there two months

16 later and had a look in the basement yourself. My question is: What had

17 you heard about the reputation of the guards or the place that led you

18 back, in view of your experience of seeing prisoners being beaten at the

19 door?

20 JUDGE ANTONETTI: [Interpretation] The Defence counsel for

21 Mr. Kubura is now taking the floor.

22 MR. IBRISIMOVIC: [Interpretation] The Defence of Mr. Kubura

23 considers that to be a leading question. The witness already answered

24 it. Asked and answered. He said he hadn't heard anything about the

25 reputation of the guards in the music school.

Page 780

1 MR. RE: He didn't say that, no. The transcript doesn't say

2 that. It says, "What can you say? I don't know. I don't know in what

3 sense you mean." I'm attempting to clarify it.

4 JUDGE ANTONETTI: [Interpretation] You may ask the question

5 again -- or the Trial Chamber will ask the question.

6 Have you heard on the part of -- or from people that were close

7 to you, people from outside, any comments about the guards in the music

8 school?

9 THE WITNESS: [Interpretation] I heard some comments, but the

10 comments were not essential, so I don't see what purpose it would serve

11 for me to say anything along those lines here.

12 JUDGE ANTONETTI: [Interpretation] Fine. So he is telling us that

13 he heard comments but these comments are irrelevant to him.

14 MR. RE: Could we move into private session for a moment, please,

15 Your Honours. It's an identity issue.

16 JUDGE ANTONETTI: [Interpretation] So we shall now go into private

17 session.

18 [Private session]

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 781

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 [Open session]

Page 782

1 THE REGISTRAR: We are in open session, Your Honour.

2 JUDGE ANTONETTI: [Interpretation] Please continue, Mr. Re.

3 MR. RE:

4 Q. Witness BA, are you able to say whether the guards had a

5 reputation for anything, as opposed to the place having a reputation?

6 And I mean by name.

7 A. I don't know, because I didn't see it. I didn't see any one of

8 them being harsher than the others.

9 Q. What was the Zenica KP Dom used for?

10 A. As a KP Dom.

11 Q. That mean correctional centre?

12 A. Yes.

13 Q. Were you aware of prisoners being transferred from the Zenica

14 Music School to the KP Dom?

15 A. All the prisoners who were captured were transported to the KP

16 Dom.

17 Q. I'm talking about prisoners being moved from the Zenica Music

18 School to the KP Dom. Were you aware of prisoners being captured, taken

19 to the Zenica Music School, and then being transferred to the KP Dom?

20 A. I knew that people were being held captive in the music school,

21 but I didn't escort anybody from the music school to the KP Dom, so I

22 don't know about that.

23 Q. Were you aware of things that prisoners from the Zenica Music

24 School were saying about the music school when they got to the KP Dom?

25 A. I don't know. I didn't have occasion to be at the KP Dom with

Page 783

1 them.

2 Q. Well, I'm not asking you that. I'm asking you whether you heard.

3 Did you hear from anyone at the KP Dom or anyone else about what

4 prisoners were saying?

5 A. May I ask a question?

6 Q. Are you seeking clarification of my question?

7 A. Yes.

8 Q. The question I'm asking you is not whether you were at the KP Dom

9 but whether you heard from other people what the prisoners who were

10 transferred to the KP Dom were saying about the Zenica Music School.

11 A. May I ask a question? I'm asking you again. With your

12 permission.

13 JUDGE ANTONETTI: [Interpretation] Yes. Witness, you may ask your

14 question.

15 THE WITNESS: [Interpretation] If I say that I heard something and

16 I don't know who I heard it from and I can't give you his name, then what

17 use would that be to the Court? Thank you.

18 JUDGE ANTONETTI: [Interpretation] Please proceed.

19 MR. RE: Thank you.

20 Q. Can you answer the question I'm asking you, and that is -- and it

21 seems implicit from the question you just asked me that you had heard

22 things. If that is the case, can you please tell Their Honours what you

23 had heard about what the prisoners were saying when they went to the KP

24 Dom.

25 MR. DIXON: Your Honour.

Page 784

1 JUDGE ANTONETTI: [Interpretation] Yes, you have the floor,

2 Mr. Dixon.

3 MR. DIXON: If I may raise an objection. Many of the questions

4 that the Prosecution has been asking the witness are, strictly speaking,

5 hearsay questions. It's not what the -- the witness himself has seen but

6 what somebody else might have seen, which the witness might have then

7 heard from that person. The jurisprudence before the Tribunal is that

8 yes, hearsay evidence may be admitted if it is relevant and reliable.

9 However, this last question is more than hearsay. It's in fact

10 double hearsay. It's what prisoners might have said to other people who

11 then might have said it to the witness. And in those circumstances, I

12 would object to this evidence being given, as that it's so far removed

13 from what might have happened. If there are witnesses who heard that

14 themselves or saw it themselves, they could always be called by the

15 Prosecution.

16 MR. RE: Your Honours, it goes directly to the question of

17 notice. It may at the moment seem slightly prefer the peripheral. But

18 as Your Honours are aware, the Prosecution case is of the accused having

19 notice or inquiry notice of what was occurring at the Zenica Music

20 School. Our case is that if this witness or other witnesses are able to

21 say -- no, members of the brigade were able to say what was going on.

22 That, in combination with documents and other elements that we intend to

23 lead, at the end of the trial will be sufficient to prove either actual

24 notice or inquiry notice.

25 In relation to the question of the admissibility of otherwise of

Page 785

1 hearsay before the International Tribunal, I'm quoting from Archbold's

2 "International Criminal Courts: Practice, Procedure and Evidence", the

3 authors of whom are Mr. Dixon himself and Mr. Karim A. Khan, Barrister,

4 and His Honour Judge May of Trial Chamber I: "There is no rule governing

5 the admissibility of hear evidence before the ICC, ICTY, ICTR or Special

6 Courts. The Trial Chambers of ICTY and ICTR have refrained from adopting

7 a practice to exclude all hearsay evidence. There is in effect no rule

8 declaring hearsay evidence per se inadmissible. The general scheme for

9 the admissibility of evidence is set out in Rule 89 for both the ICTY and

10 ICTR has guided the Chambers in their deliberations about hearsay

11 evidence."

12 The learned authors of this seminal text, the first text actually

13 gathering the procedural laws in detail for the International Criminal

14 Tribunals now in existence then go on to quote the Tadic Trial Chamber

15 decision on the motion of hearsay from 1996 and the Aleksovski Appeals

16 Chamber decision on the use that can be made of hearsay. I have copies

17 of this if Your Honours wish to see an extract. It's in English. I

18 can't produce a French version, a translation, at the moment.

19 Finally, I'd point out to Your Honours that the Prosecution is

20 obviously asking these particular questions of this witness for a reason;

21 that is, a reason based upon a statement or a proofing session. And we

22 wouldn't be going down this line if we didn't think we could make the

23 evidence relevant, if not now, at a later point when Your Honours come to

24 consider the evidence in its totality.

25 So in the Prosecution's submission, the evidence - although at

Page 786

1 the moment it may seem a little tangential - will ultimately prove to be

2 relevant and probative.

3 Do Your Honours wish me to hand up copies from the extract of

4 Archbold?

5 JUDGE ANTONETTI: [Interpretation] The Trial Chamber has noticed

6 the comments made by the counsel of Mr. Kubura, as well as the answer

7 provided by the Prosecution. Regarding this particular comment, it

8 hinges on the fact that the witness through hearsay may have been

9 informed about a number of things which would highlight the truth,

10 thereby providing some information to the Trial Chamber.

11 If I turn to the transcript, I realise that the question was put

12 to him, and he was asked whether he was present or not in this detention

13 centre, and he answered by saying that he had been there on one occasion

14 and that as far as he knew he did not know who was inside. He was then

15 asked a question about the relationship he may have had with someone in

16 this centre. He said that he had had no information from this person.

17 So to the various questions that were put to him, the witness may have

18 been in contradiction with what he stated beforehand. He states today

19 that he cannot provide any information thereof. This is where we stand

20 now.

21 I shall now ask him to tell us whether he has heard about the

22 detention conditions of the prisoners. Can the witness answer this very

23 simple question?

24 THE WITNESS: [Interpretation] Yes.

25 JUDGE ANTONETTI: [Interpretation] Fine. So you heard about this.

Page 787

1 Have you heard about this in vague or concrete terms?

2 THE WITNESS: [Interpretation] There was nothing precise that was

3 said.

4 JUDGE ANTONETTI: [Interpretation] Those people who are mentioned,

5 were these people actually working in this detention centre or are we

6 talking about other people?

7 THE WITNESS: [Interpretation] I heard it from a young guy working

8 in the KP Dom Zenica.

9 JUDGE ANTONETTI: [Interpretation] The man who was working at the

10 KP Dom in Zenica, did this man describe what he had seen with his own

11 eyes? Did he describe things in very clear terms or in vague terms to

12 you?

13 THE WITNESS: [Interpretation] In vague terms.

14 JUDGE ANTONETTI: [Interpretation] Did you feel that what he was

15 telling you was particularly important or not?

16 THE WITNESS: [Interpretation] No, I didn't.

17 JUDGE ANTONETTI: [Interpretation] So if I understand you well,

18 you can't tell the Judges anything about the detention conditions at the

19 KP Dom in Zenica.

20 THE WITNESS: [Interpretation] I can't, because I was never up

21 there.

22 JUDGE ANTONETTI: [Interpretation] Well, I have asked the witness

23 a number of questions. He has answered by saying that he cannot

24 contribute anything and that he cannot provide any information about

25 these events that occurred at the KP Dom in Zenica, and that according to

Page 788

1 him a guard would have mentioned this but in very vague terms to him.

2 Would the Prosecution wish to proceed? Would you like to change

3 the topic and move on to another one?

4 MR. RE: I just seek clarification. Maybe we're at

5 cross-purposes. Your Honour just asked questions about the KP Dom in

6 Zenica. I was actually asking about the Zenica Music School, about

7 prisoners who had been transferred from the music school to the KP Dom

8 and what the prisoners there had said about conditions in the Zenica

9 Music School. The answer Your Honour seems to have elicited, according

10 to the transcript, seems to relate to the KP Dom rather than to the music

11 school. That was what I was trying to clarify.

12 JUDGE ANTONETTI: [Interpretation] Fine. So if you wish to,

13 clarify this issue by asking a question about the fate of those people

14 that were at the music school and that were transferred to the KP Dom.

15 But I think he has already answered the question, but I think he didn't

16 know. But please ask him the question again, if you way.

17 MR. RE:

18 Q. Witness BA, my question is just this: What did you hear that

19 prisoners from the Zenica Music School who were transferred to the Zenica

20 KP Dom were saying about what had happened to them at the Zenica Music

21 School?

22 A. They didn't say that anything was happening to them specifically,

23 but it was just this worker in the KP Dom of Zenica that I heard that the

24 prisoners coming from the music school would say they had poor

25 conditions. Now, how far that was true or not, whether they exaggerated

Page 789

1 or not, I really can't say.

2 Q. Poor conditions? Meaning what?

3 A. That's what I heard. Poor conditions were referred to. I can't

4 say what those were. I don't know.

5 Q. All right. We'll move to another topic, and that is the ABiH --

6 or the combat between the ABiH and the HVO in the Ovnak, Susanj,

7 Grahovcici, Brajkovici area in June 1993. Your company, did it

8 participate on HVO manoeuvres in that area in 1993?

9 A. Yes.

10 Q. I'm going to show you a map, which is a larger copy of P1,

11 specifically in that area. What I want you to do is get the large black

12 texter and please mark, in a moment, starting with where your company was

13 and where it went to. Same thing; large line with arrows.

14 A. [Marks]

15 Q. You're indicating on the map from the area of Rebrovac in the

16 direction of Novo Selo. Does Novo Selo have another name?

17 A. We called it Ovnak.

18 Q. Ovnak, O-v-n-a-k. You can see Ovnak is not marked on the map.

19 Is Novo Selo another local name for what is also called Ovnak?

20 A. I think it is.

21 Q. All right. The arrow you have drawn goes just before Novo Selo.

22 Could that also be described as the Susanj area?

23 A. Susanj is on the right.

24 Q. Where did your unit go from the area you have marked on the map?

25 That's the Novo Selo/Ovnak area. Did you go into the village of Susanj?

Page 790

1 A. I'm not quite clear on the question.

2 Q. All right. I'll come to it -- I'll come back to it in a moment.

3 You can see below on the map is Grahovcici. Did other units from

4 the 7th Muslim Mountain Brigade attack Grahovcici?

5 A. I don't know exactly which unit attacked this place.

6 Q. Where were the civilians when your unit moved into Ovnak/Susanj

7 area?

8 A. Well, mostly there weren't any civilians there.

9 Q. Was the HVO there then when you moved into the village?

10 A. Mostly there was withdrawal.

11 Q. You've mentioned before that Serif Patkovic was the commander.

12 Was he there on that day leading the attack?

13 A. I don't remember exactly.

14 Q. Who was leading the attack?

15 A. Mostly the commanders of the platoons and so on.

16 Q. Who was your commander on the day?

17 A. I don't remember.

18 Q. When you entered Susanj, how many members of the 7th Muslim

19 Mountain Brigade, roughly, were in that area?

20 A. My unit entered Novo Selo. It didn't go to Susanj. And in that

21 combat position, you can't see all the units. Every unit is doing its

22 own job. Now, who was there, I can't say.

23 Q. You said a moment ago mostly there weren't any civilians in Ovnak

24 when you moved into it. Where were the civilians, or what did you see --

25 what civilians did you see?

Page 791

1 A. Mostly the civilians -- or rather, that was the members of the

2 HVO -- were in a mining area and were withdrawing towards Vitez from

3 there.

4 Q. Was UNPROFOR in the area; that is, the international

5 peace-keeping troops?

6 A. No.

7 Q. Were you given any orders in relation to UNPROFOR, to do anything

8 in relation to UNPROFOR?

9 A. Yes.

10 Q. What were the orders and who gave them to you?

11 A. We received orders to go down to a place that was lower towards

12 Zenica, not to allow anybody to pass through that way.

13 Q. I just asked you about UNPROFOR, and you said not to allow

14 anybody to pass through that way. Does your answer mean not to allow

15 UNPROFOR to pass through that way?

16 A. Not UNPROFOR or anybody else.

17 Q. Was it Serif Patkovic who gave you that order?

18 A. Not to me personally, no.

19 Q. Who did he give the order to?

20 A. I don't know.

21 Q. How do you know he gave the order?

22 A. I don't know.

23 JUDGE ANTONETTI: [Interpretation] Yes, you have the floor, the

24 Defence counsel.

25 MS. RESIDOVIC: [Interpretation] The witness has answered the

Page 792

1 question. The question was a leading one. He didn't say that Patkovic

2 issued the order, which the Prosecution suggested, but the witness did

3 provide an answer.

4 JUDGE ANTONETTI: [Interpretation] I did not hear the translation.

5 I'm sorry.

6 Could you repeat, please.

7 MS. RESIDOVIC: [Interpretation] I wanted to react to the question

8 posed by the Prosecutor because the witness -- he suggested to the

9 witness that he had said something earlier on which he didn't in fact

10 say. But there's no need for me to object and react because the witness

11 himself stated this clearly. He said he did not know that Patkovic ever

12 issued the order.

13 MR. RE:

14 Q. Witness BA --

15 MR. RE: I'll move on.

16 Q. Witness BA, where do you go on that day when you were ordered to

17 stop anyone entering the village? What other places did you go to?

18 A. Cajdras.

19 Q. What about the next day? Where did you go then?

20 A. The next day I was in Novo Selo.

21 Q. Were other members of the 7th Muslim Mountain Brigade in Novo

22 Selo the next day, that is, Ovnak?

23 A. Yes.

24 JUDGE ANTONETTI: Yes, Mr. Bourgon, you have the floor.

25 MR. BOURGON: [Interpretation] Thank you. Your Honour, I would

Page 793

1 just like to clarify something. I have just read the transcript and the

2 question raised by the Prosecution; to that question, the witness

3 answered that he had been ordered and that the UNPROFOR had told them

4 that nobody should be able to go that way and that they should bar the

5 route. And when another question was put to him, the Prosecution said or

6 insinuated that he had been given the order that nobody should enter the

7 village, which is not what the witness said. I would just like to

8 clarify this and make sure that it's put on the record correctly. Thank

9 you, Your Honour.

10 JUDGE ANTONETTI: The Trial Chamber did see that, pertaining to

11 the question which was asked, the question relating to UNPROFOR. The

12 witness answered, without us being able to understand whether his answer

13 related to UNPROFOR forces or some other event. Therefore, we cannot

14 draw the conclusion that his answer was directly connected with the

15 presence of UNPROFOR. So we need to clarify this point, I believe -- if

16 this question is relevant, of course, and the Trial Chamber does wonder

17 whether it is relevant or not.

18 So I shall give the floor to the Prosecution. If the Prosecution

19 wishes to ask that question again on the presence of UNPROFOR forces in

20 that area and how the group of the witness and UNPROFOR operated or not.

21 THE INTERPRETER: Microphone, please, Your Honour.

22 JUDGE ANTONETTI: [Interpretation] I was saying that the Trial

23 Chamber has noted the Defence's position. The Defence wishes to see this

24 point clarified. You can ask your question again, but I would like to

25 say that we shall be stopping in ten minutes to have our break.

Page 794

1 MR. RE: I wasn't seeking clarification, in light of the answer

2 the witness gave in relation to Serif Patkovic. I wasn't going to take

3 it any further.

4 Q. Witness BA, a moment ago I got to the point where --

5 MR. RE: Excuse me. I've just got to find the transcript again.

6 Q. The question was: The next day, were other members of the

7 7th Muslim Mountain Brigade in Novo Selo or Ovnak? And you answered yes.

8 What were they doing the next day in Ovnak, or Novo Selo?

9 A. They were mostly deployed there, because you can't fight in one

10 place and then withdraw the very next day.

11 Q. The civilians had gone and the soldiers were there; is that

12 right?

13 A. Yes.

14 Q. What were the soldiers doing in relation to the civilians' houses

15 and their property?

16 A. Some of the belongings from the houses were collected together in

17 one spot.

18 Q. What sort of belongings? Describe them, please.

19 A. Mostly household appliances, technical goods.

20 Q. You said were collected together in one spot. Who collected them

21 and put them in that spot?

22 A. Soldiers.

23 Q. Is that soldiers of the 7th Muslim Mountain Brigade?

24 A. Soldiers of the 7th Muslim.

25 Q. What about other brigades?

Page 795

1 A. I don't know.

2 Q. And what was the spot where they were collected together?

3 A. The church at Brajkovici.

4 Q. Were you one of the people collecting these goods?

5 A. No.

6 Q. Did you go into the church in Brajkovici?

7 A. Once.

8 Q. What did you see?

9 A. Some of the thing things that had been collected there.

10 Q. You just described mostly household appliances. What other

11 things, other than household appliances, did you see in the church? And

12 approximately how full was the church of these things?

13 A. Well, there was quite a lot of them. There were quite a lot of

14 them.

15 Q. All right. The other part of the question was: What else

16 besides household appliances did you see there?

17 A. Mostly technical goods.

18 Q. You mentioned household goods and appliances and technical goods.

19 What about vehicles, motor vehicles?

20 A. Some.

21 Q. Where were they and how many were there?

22 A. Mostly they were used for the requirements of the army. I don't

23 know how many.

24 Q. And where were they parked?

25 A. As far as I remember, two or three in front of the church and

Page 796

1 others had been driven off by the soldiers.

2 Q. And how long did your unit remain in Novo Selo/Ovnak area?

3 A. I don't know exactly. Perhaps three days, three or four days.

4 Not more than that.

5 Q. Who was in charge of gathering all these -- all the civilian

6 property that was in the church?

7 A. I don't know. What do you mean by "in charge," "who was in

8 charge"?

9 Q. Who was guarding the church, if anyone?

10 A. The whole settlement was being guarded, Ovnak, Brajkovici.

11 Q. Where did the contents of the church, that is, the civilian

12 property, go from there? I mean, what happened to it all? Who received

13 it?

14 A. Part of it went to the brigade. Whether everything went, I don't

15 know; and who got the goods ultimately, I don't know.

16 Q. Part of it went to the brigade. The brigade, was it then

17 stationed at Bilmiste?

18 A. Yes.

19 Q. Are you saying part of the property that was in the church in

20 Brajkovici was taken back to brigade headquarters in Bilmiste?

21 A. Yes.

22 Q. Where was it stored -- or where was it taken to in brigade

23 headquarters in Bilmiste?

24 A. As far as I remember, in some premises that were designated as a

25 warehouse.

Page 797

1 MR. RE: It's 5.30, Your Honour.

2 JUDGE ANTONETTI: [Interpretation] It is now 5.30. We shall

3 resume at five minutes to 6.00.

4 MR. WITHOPF: [Microphone not activated] Your Honours.

5 --- Recess taken at 5.30 p.m.

6 --- On resuming at 5.54 p.m.

7 JUDGE ANTONETTI: [Interpretation] [Microphone not activated]

8 Before I give the floor to the Prosecution, I would like to know whether

9 in the time that we have left you will be able to finish your line of

10 questioning, or would you wish to continue tomorrow.

11 MR. RE: I'm very hopeful we should be able to continue -- finish

12 tonight, Your Honour.

13 JUDGE ANTONETTI: [Interpretation] Fine. So I give you the floor.

14 Please proceed.

15 MR. RE:

16 Q. Witness BA, before the break, you were telling the Trial Chamber

17 about the storing of the civilian property from Ovnak/Susanj area in

18 brigade headquarters in Bilmiste. Yesterday you told the Trial Chamber

19 that the 7th Muslim Mountain Brigade headquarters were in an educational

20 facility or a school in Bilmiste. What I want you to do is to draw a

21 diagram for the Trial Chamber of the facility in Bilmiste, please. If

22 you'd just -- I think you said that there were three buildings. Can you

23 please draw the three buildings, a cross-sectional view, if you can.

24 A. [Witness complies]

25 Q. You've drawn three buildings. Can you please put numbers on

Page 798

1 them, 1, 2 -- sorry. First of all, how many floors did each of these

2 buildings have?

3 A. I think three each.

4 Q. Can you please just draw lines on the buildings to indicate the

5 floors, which I think means putting two lines on each building.

6 A. [Marks]

7 Q. The building on the left.

8 THE INTERPRETER: Could the witness repeat his answer, please.

9 MR. RE:

10 Q. Could you please repeat your last answer. The interpreters

11 didn't hear it. So please, again, Witness BA, could you please speak up

12 as loudly as you comfortably can.

13 A. That's the sports hall.

14 Q. All right. Where was the -- well, what I want you to do is to

15 put a "1," "2," and " 3" on each -- above each of these buildings,

16 please, starting from the left.

17 A. [Marks]

18 Q. 1 was the sports hall. Can you please write "sports hall" next

19 to "1."

20 A. [Marks]

21 Q. The building which you have marked number 2 has three floors;

22 building number 3 also has three floors. What was the commander's

23 office? Can you please mark that with a -- an "X."

24 A. [Marks]

25 Q. You've marked it on the second building. Could you please draw

Page 799

1 an arrow from that leading to above the "2" and write in "commander's

2 office," please.

3 A. [Marks]

4 Q. Now, with a circle, can you please mark the places where the

5 goods from Ovnak/Susanj area were stored.

6 A. [Marks]

7 Q. All right. And can you just on the diagram, say in the bottom

8 left-hand corner, put in the "O" and put an "=" and just write in where

9 goods were stored.

10 A. [Marks]

11 Q. Could you please put in an "=" between the "O" and the "M."

12 A. [Marks]

13 Q. You also mentioned earlier some cars. Were cars taken back to

14 the brigade headquarters as well?

15 A. Some.

16 Q. Are you able to mark on that particular diagram where the cars

17 were taken to?

18 A. [Marks]

19 Q. Can you please just write under those six squares you have drawn

20 "cars."

21 A. [Marks]

22 Q. Can you also -- don't write but just point on that diagram to

23 where the entrance to the brigade headquarters was.

24 A. [Marks]

25 Q. All right. Are you indicating that it was around the corner in

Page 800

1 the part we can't see on building number 2?

2 A. Yes.

3 Q. All right. Can you just draw a curved arrow to where you say the

4 entrance was and just write next to it "brigade headquarters entrance."

5 A. [Marks]

6 Q. And what's the approximate distance between those parked cars

7 you've indicated there on the map and the brigade headquarters entrance

8 in metres?

9 A. 20, 25 metres perhaps.

10 Q. All right. Would you just be able to draw a line with an arrow

11 on each end and write "20m" for 20 metres on the arrow. You know, the

12 way to indicate the distance between two points. That is, between the

13 parked cars and the entrance door.

14 A. [Marks]

15 Q. Thank you.

16 MR. RE: So that this can remain public, would it be if okay if

17 the witness could write "BA" on the map, Your Honours. The Prosecution

18 doesn't consider that would identify him.

19 JUDGE ANTONETTI: [Interpretation] So the initials "BA"?

20 Could you initial this drawing, please, below the drawing.

21 MR. RE: And please also mark the date on, which is the 9th of

22 December, please.

23 THE WITNESS: [Marks]

24 MR. RE:

25 Q. What were the top two floors of building 3 used for, Witness BA?

Page 801

1 A. For the accommodation of the 2nd and 3rd Battalion.

2 Q. All right. Could you please do an arrow to each of the two

3 floors and write in "accommodation 2nd Battalion and 3rd Battalion." If

4 you could just do that on the right of building 3.

5 A. [Marks]

6 Q. Could you please write in -- you've written "II and III

7 Battalion." Could you just write in something to indicate that's where

8 they were accommodated. And by "accommodated," do you mean as in

9 billeted?

10 A. Yes.

11 Q. Could you write something in to indicate that's where the

12 soldiers were billeted, please.

13 A. [Marks]

14 Q. What was the top floor of the second building used for, Witness

15 BA?

16 A. [No interpretation]

17 Q. Witness BA, the interpreters didn't catch your last answer. My

18 question was: What was the top floor of the second building used for?

19 Can you just repeat your answer, please, loudly.

20 A. [No interpretation]

21 THE INTERPRETER: Sorry, we can't hear the witness.

22 MR. RE:

23 Q. They can't hear you.

24 A. The units attached to the staff.

25 Q. You mean the corps -- sorry, the brigade command staff?

Page 802

1 A. No. That's not what I mean.

2 Q. Well, what do you mean?

3 A. The logistics platoon, the cooks, part of the artillery, that

4 kind of thing.

5 Q. All right. Can you just please indicate on that map as well,

6 just draw an arrow going out and up, and just put in who was housed

7 there.

8 A. [Marks]

9 Q. And what was building number 1, the sports hall, used for?

10 A. For sports activities, and sometimes it was used for some

11 celebrations.

12 MR. RE: May that diagram be tendered into evidence.

13 JUDGE ANTONETTI: [Interpretation] Yes. Usher, could you show

14 this document to the Defence team, as well as to the accused, please.

15 Madam Registrar, could you give us a number, an exhibit number,

16 please.

17 THE REGISTRAR: This will be Exhibit P14.

18 MR. RE: May the diagram that the witness marked of the area of

19 Novo Selo, Ovnak, Susanj also be tendered into evidence.

20 Do Your Honours wish the witness to mark that so it doesn't get

21 lost along the way, if he puts his initials and the date on it, in case

22 other witnesses at some point mark a similar document?

23 JUDGE ANTONETTI: [Interpretation] I would like the witness to

24 initial this document, to sign by using the initials "BA" and to write

25 the date in, please.

Page 803

1 MR. RE:

2 Q. Witness BA, could you perhaps use the larger black marking pen

3 rather than the smaller one. It's a black-and-white copy. And just make

4 it a little bit larger than the last one.

5 A. [Witness complies]

6 JUDGE ANTONETTI: [Interpretation] Fine.

7 Could you show this document to the Defence again, the document

8 that has just been initialled.

9 Madam Registrar, could you give us an exhibit number, please.

10 THE REGISTRAR: The exhibit number is P15.

11 JUDGE ANTONETTI: [Interpretation] The exhibit is therefore P15.

12 Please proceed.

13 MR. RE:

14 Q. Witness BA, I'm going to show you some photographs now that will

15 be shown on the screen in front of you. I'm going to show you four

16 photographs. I'm going to ask you to identify, if you can, each of them.

17 MR. RE: Then I'll ask them to be moved into evidence. And

18 copies are actually on their way.

19 Q. I'm showing you photo 0124-9067. Witness BA, what is that a

20 photograph of?

21 A. Part of Novo Selo and I think Brajkovici.

22 Q. And could you just tell the Trial Chamber for the record where

23 your unit was when it came -- from which direction your unit came into

24 Novo Selo in June 1993.

25 A. From the left-hand side, to the left of the road.

Page 804

1 Q. And can you just describe to the Trial Chamber where your unit

2 went to in Novo Selo on that photograph.

3 A. It came from this side here, and it was there in Novo Selo.

4 Afterwards, I was transferred to the checkpoint here at Ovnak, and I

5 spent three or four days there.

6 Q. Witness BA, we can't see what you're pointing at. Can you just

7 describe where in the photograph you were pointing to by some identifying

8 feature?

9 A. The unit came, as I said, from the direction, from the left here,

10 the left area of the road.

11 Q. You're indicating at the very bottom of the photograph towards

12 the road, which is running on the left side. Where did you move to then?

13 MR. RE: I apologise. My case manager was actually moving it. I

14 thought by some magic you were able to.

15 Q. Can you just describe the area in the middle in which you

16 actually -- the area you actually went to. Just describe it for the

17 court record as you look at the photograph. Where was it? Top, bottom,

18 middle?

19 A. You can't see it on the photograph, the place I went to. It's

20 not shown.

21 Q. All right.

22 MR. RE: Can the witness please be shown the next photograph,

23 which is 0124-9070. That's the ERN.

24 Q. What's this a photograph of?

25 A. This is the peak of Ovnak and Novo Selo, the top.

Page 805

1 Q. The third photo is 0124-9079. What is -- what does that depict?

2 A. I can't find my way around on this photograph, I'm afraid.

3 Q. All right. We'll move to the next one, which is 67 -- sorry,

4 01396760, ERN 01248907. In your evidence before, you mentioned a church

5 in Brajkovici.

6 A. Yes.

7 Q. Do you recognise the church in that photograph?

8 A. Yes.

9 Q. Thank you.

10 MR. RE: Your Honours, I regret to say the copies of these

11 photographs haven't arrived in -- we were trying to get colour copies.

12 They haven't arrived in time. We had ordered them. So could these just

13 be virtually marked, so to speak, the four numbers I've read onto the

14 record. And we will tender, assuming there's no objection, the four

15 photos when they actually get here, either later this afternoon or

16 tomorrow. It shouldn't make any difference, in my submission.

17 JUDGE ANTONETTI: [Interpretation] Well, I find it difficult to

18 give a virtual number here, on the basis of photographs which are virtual

19 photographs, because we can only see them on a screen. Tomorrow morning

20 you can tender these photographs into evidence. We'll leave this on

21 standby for the moment, and we shall tender these photographs into

22 evidence tomorrow, unless the Defence feels that these can already be

23 tendered here and now.

24 MR. RE: Except, of course, the third one, which the witness

25 couldn't identify. I don't tender that. It's 1, 2, and 4.

Page 806

1 MS. RESIDOVIC: [Interpretation] The Defence just had a remark to

2 make with respect to the photograph that wasn't recognised by the

3 witness. But as the Prosecutor has already said he's not tendering that

4 one into evidence, thank you. That would be what I had to say.

5 JUDGE ANTONETTI: [Interpretation] Fine. So you will provide

6 these three photographs tomorrow, the beginning of the afternoon, and we

7 shall then give an exhibit number.

8 That said, only three out of the four photographs will be

9 tendered into evidence. So please proceed.

10 MR. RE:

11 Q. I want to take you, Witness BA, to combat operations between the

12 HVO and the ABiH in the municipality and town of Vares in November 1993.

13 I don't understand there to be any dispute between the party that is

14 there was in fact -- there were in fact combat operations at that time,

15 although we have not yet reached agreement on these latter actions.

16 MR. RE: No movement from the Defence.

17 Q. Witness BA, did you participate in combat operations in Vares

18 against the -- sorry, against the HVO in November 1993?

19 A. No, I did not.

20 Q. Was your unit present in Vares in November, early November 1993?

21 A. I wasn't a member of the 7th Muslim at the time.

22 Q. Were you in Vares in early November 1993?

23 A. No.

24 [Prosecution counsel confer]

25 MR. RE:

Page 807

1 Q. Mr. Witness BA, what can you tell the Trial Chamber about what

2 happened in Vares in November 1993?

3 MR. IBRISIMOVIC: [Interpretation] Your Honours, Mr. Kubura's

4 Defence team has an objection to make. The witness has already said he

5 wasn't a member of the 7th Muslim Brigade during that period of time and

6 that he wasn't in the region of Vares at all.

7 JUDGE ANTONETTI: [Interpretation] Yes. Before I give the floor

8 back to you, can the witness tell us at what date exactly he left the

9 7th Muslim Mountain Brigade? Because it seems like in November he was no

10 longer a member of this brigade.

11 MR. RE: Before the witness answers that, can I remind Your

12 Honours of the witness's evidence yesterday morning -- yesterday about

13 him being in the brigade 1993, 1994, and 1995.

14 JUDGE ANTONETTI: [Interpretation] Fine. Can the witness tell us

15 at what time he -- at what moment he left this brigade.

16 THE WITNESS: [Interpretation] Yesterday I just mentioned 1992 and

17 1993, when I first testified. I don't remember of what date exactly at

18 the end of 1993 I ceased to be a member of the 7th Muslim Brigade.

19 JUDGE ANTONETTI: [Interpretation] And why did the witness cease

20 to be a member of the 7th Muslim Brigade? Did he leave voluntarily or

21 was he asked to leave? What happened exactly?

22 THE WITNESS: [Interpretation] As I was unemployed at the time, I

23 managed to find a job, and that's why I left the brigade, to take up this

24 new job.

25 JUDGE ANTONETTI: [Interpretation] Could you tell us exactly when

Page 808

1 this occurred. Was it in July, August, November? What months exactly?

2 THE WITNESS: [Interpretation] I think it was soon after the

3 operation at Ovnak. Perhaps a month later, at the most, when I left the

4 brigade. I can't be sure of the exact date.

5 JUDGE ANTONETTI: [Interpretation] Fine. I give the floor back to

6 the Prosecution. The witness has just told us that he left the

7 7th Brigade because he had found a job and that, therefore, in the month

8 of November he was not in Vares. And if he had said yesterday -- or said

9 yesterday that he was a member in 1992, 1993, and 1994, he qualifies this

10 and says that he was a member in 1992 and 1993. In any event, he was no

11 longer a member in the month of November.

12 MR. RE: Your Honours, can I just apologise. I wrongly

13 intervened. I've just re-checked the transcript. I shouldn't have been

14 so hasty. I should have just asked Your Honours to hold off for a moment

15 while I checked the transcript. It didn't say 1994 and 1995 and I

16 apologise for my incorrect intervention. It was something that was in my

17 mind.

18 Q. Witness BA, I have another question. If you could just wait a

19 moment.

20 Witness BA, you've told the transcript about property from those

21 villages -- of Susanj, Ovnak, and so on -- being taken back to brigade

22 headquarters and stored in the spot you've indicated on the diagram,

23 which is now P14. What happened to that property when it got back to

24 brigade headquarters?

25 A. As far as I remember, some of the property was divided up among

Page 809

1 the members of the 7th Muslim Brigade. What exactly and how this was

2 done, I don't know.

3 Q. Did you receive any property?

4 A. No, because I left the brigade right after that.

5 Q. Witness BA, you said that it was divided among the members of the

6 7th Muslim Mountain Brigade. As you know, the brigade was composed of

7 officers, ordinary soldiers, commanders and so on. Was it divided -- how

8 was it divided amongst the various components in the brigade?

9 A. I don't know exactly.

10 Q. We spoke yesterday, and you gave some evidence about the

11 Mujahedin having a training camp at Arnauti. What do you know about the

12 Mujahedin having houses in the Central Bosnian area?

13 A. All I know is that they didn't stay in the brigade. So if they

14 came to the brigade, they spent a day or two there and then left.

15 Q. I'm asking you specifically about houses, Witness BA. What do

16 you know about houses in which the Mujahedin stayed in Central Bosnia?

17 JUDGE ANTONETTI: [Interpretation] The Defence.

18 MS. RESIDOVIC: [Interpretation] Your Honour, yesterday the

19 witness testified that he knew about the camp at Arnauti, in which he

20 underwent training. As to other questions pertaining to Central Bosnia,

21 he said he had no personal knowledge of that.

22 JUDGE ANTONETTI: [Interpretation] The Trial Chamber has noted

23 your comment.

24 Please proceed. The Prosecution, please.

25 MR. RE: Thank you.

Page 810

1 Q. Are you able to answer the question, Witness BA, that is, about

2 houses in which the Mujahedin were staying in Central Bosnia? Do you

3 have any knowledge of it?

4 A. I knew about one house which they purchased and where they lived.

5 Q. And where was that?

6 A. In Zenica.

7 Q. Yesterday you told us that the emir of the brigade was called

8 Emir Karalic. And you also spoke about a break between the Mujahedin and

9 the 7th Muslim Mountain Brigade. Were you aware of any dispute between

10 the Mujahedin and Emir Karalic?

11 A. I heard about a dispute, a quarrel, which I was not present at.

12 Q. What did you hear the dispute was about between Emir Karalic and

13 the Mujahedin?

14 A. I don't know exactly.

15 Q. Yesterday you told us that there were several hodza in the

16 brigade. Can you tell us their names.

17 A. You mean the names you want?

18 Q. Yes, please.

19 A. I don't remember their names.

20 Q. What do you know about the Mujahedin -- El Mujahedin unit or

21 detachment within the ABiH 3rd Corps?

22 JUDGE ANTONETTI: [Interpretation] The Defence has the floor.

23 MS. RESIDOVIC: [Interpretation] The witness has already said that

24 he left the 7th Muslim Brigade at the end of June.

25 And the second point: Yesterday, in response to your question,

Page 811

1 he said loud and clear - and you repeated it - that he didn't know much

2 about the structure of the corps and brigades.

3 And third, the witness is being suggested that the Mujahedin was

4 within the frameworks of the 3rd Corps, although that particular fact has

5 not been mentioned or confirmed by anyone thus far. So for those three

6 reasons I consider that these questions do not merit an answer.

7 JUDGE ANTONETTI: [Interpretation] As far as the Defence comment

8 is concerned, what does -- what is the Prosecution's position, in the

9 light of the fact that the witness provided no information yesterday on

10 the -- on the integration of the 7th Muslim Brigade to the 3rd Corps?

11 MR. RE: I'm just asking based upon some thing which is are in

12 his statement and which the witness has told me and other prosecutors in

13 proofing and is not necessarily related to anything my learned friend,

14 Mrs. Residovic, is saying at the moment. There is a purpose for me

15 asking this question based upon his statement, irrespective of whether he

16 could tell us about the formal structure of the 3rd Corps yesterday. The

17 two are completely unrelated. I'm asking him what is his knowledge of

18 the El Mujahed detachment. He may have a different date to that the

19 Defence has in mind. As there's no agreement, it appears, on the date of

20 formation, I should be able to ask this witness was what he knows about

21 the formation, as he was a member of the brigade at a possibly pertinent

22 point during 1993. It's relative and probative, in my submission.

23 JUDGE ANTONETTI: [Interpretation] Yes. At this stage of the

24 proceeding, the witness can answer this question which was put to him

25 concerning this particular unit; did he know about it or did he not.

Page 812

1 I shall ask him the question directly.

2 Questioned by the Court:

3 JUDGE ANTONETTI: [Interpretation] Witness, when you were a member

4 of the 7th Brigade, did you know is that another unit called El Mujahedin

5 unit existed?

6 A. As far as I know, that unit never existed, while I myself was a

7 member of the 7th Muslim Brigade.

8 JUDGE ANTONETTI: [Interpretation] This unit, therefore, did not

9 exist at the time you were a member of the 7th Brigade. That, in effect,

10 is what you are telling us.

11 A. Yes.

12 JUDGE ANTONETTI: [Interpretation] Yesterday you told us that at

13 one stage you had been trained at Arnauti, at a training camp, together

14 with a number of other people who, according to you, were strangers.

15 Which unit did these people belong to? Or were you talking about

16 civilians?

17 A. I don't know which unit they belonged to.

18 JUDGE ANTONETTI: [Interpretation] How much time did you spend at

19 this training camp?

20 A. As far as I remember, about 20 days.

21 JUDGE ANTONETTI: [Interpretation] Was this a military training

22 camp or were you being taught how to cook? Could you tell us a little

23 bit, whether you were being taught to shoot, close combat -- were you

24 being taught close combat operations? What were you being taught? Or

25 were you being taught how to sew?

Page 813

1 A. Military training.

2 JUDGE ANTONETTI: [Interpretation] Fine. And you spent 20 days

3 with your fellow trainees. You did not talk to them. You did not

4 exchange views or opinions with these people?

5 A. Little.

6 JUDGE ANTONETTI: [Interpretation] Therefore you had no contact

7 whatsoever with these people.

8 A. All the contact I had was through the training sessions.

9 JUDGE ANTONETTI: [Interpretation] And you didn't ask them where

10 they came from, what they were doing there, and why they were there,

11 basically?

12 A. I don't know where they came from exactly. I think the initial

13 -- during the initial training, I think they were from Turkey. Mostly

14 the military training was the kind that we needed, so nobody asked many

15 questions. Nobody asked anybody anything, in actual fact. So the object

16 of the training was to learn something about weapons, to get some

17 preparatory training and preparation.

18 JUDGE ANTONETTI: [Interpretation] How many of you were there,

19 then? Were you 10, 20, or 30? How many trainees were there in this

20 camp?

21 A. Perhaps 20, 25, thereabouts.

22 JUDGE ANTONETTI: [Interpretation] And out of these 25, how many

23 were locals of the region, compared with other people who did not come

24 from that region?

25 A. There were about 20 or 25 of us. I don't remember; perhaps 3 or

Page 814

1 4.

2 JUDGE ANTONETTI: [Interpretation] Well, the witness tells us that

3 he doesn't know anything about this unit, and the three or four people

4 that were with him are people he was literally not in contact with.

5 Please proceed your line of questions. We have 20 minutes left.

6 MR. RE: Your Honour, there's some clarification. I wasn't

7 actually asking him about the training in 1992 in Arnauti, whatever it's

8 called - I can't remember - I was asking him about the formation of a

9 detachment called El Mujahed sometime in 1993. The two are unrelated.

10 Q. Witness BA, I want to ask you about the accused Amir Kubura over

11 there. Was the accused Amir Kubura based at the educational facility in

12 Bilmiste when you were there?

13 A. I don't know exactly.

14 Q. Did you ever see the accused Amir Kubura at Bilmiste, Witness BA?

15 A. Once or twice.

16 Q. And when was that?

17 A. I don't remember exactly.

18 Q. What was his position when you were there in 1993?

19 A. I didn't understand your question.

20 Q. When you were at Bilmiste in 1993, what was Amir Kubura's

21 position within the 7th Muslim Mountain Brigade?

22 A. As to what position, Amir Kubura knows more about that -- or

23 rather, I know from the press or from the -- this trial. I didn't notice

24 the man at all at the time. I just saw him once or twice. I don't know,

25 as I said in my statement.

Page 815

1 Q. Who was the commanding officer of the 7th Muslim Mountain Brigade

2 in 1993? You must know that, Witness BA.

3 A. At that time you mean?

4 Q. In 1993, who was the commanding officer of the 7th Muslim

5 Mountain Brigade?

6 A. In 1993, in our brigade, as far as I remember, and as far as I

7 know, it was said that Mr. Amir Kubura was abroad. Now, whether that was

8 the right information, I really can't say.

9 Q. I'm going to ask you about President Izetbegovic. Did he have

10 any relationship with the 7th Muslim Mountain Brigade that you were aware

11 of?

12 JUDGE ANTONETTI: [Interpretation] Yes, the Defence has the floor.

13 MR. IBRISIMOVIC: [Interpretation] Your Honour, the Defence

14 counsel of Mr. Kubura would like to object. It is quite obvious that

15 Witness BA was an ordinary soldier, and he knows nothing about the

16 relationship of Mr. Izetbegovic and the command staff, commanding

17 officers, and his relationship with the 7th Muslim Brigade. He cannot

18 know that as an ordinary soldier.

19 MR. RE: Well, how can he not know that as an ordinary soldier?

20 He was there. With great respect to my learned friend, I'm asking him

21 what his knowledge was. Either he knows or he doesn't know. And if he

22 does know, he might be able to tell us.

23 JUDGE ANTONETTI: [Interpretation] As far as this issue is

24 concerned, I feel we can ask this question to a soldier, a man in the

25 army, ask him whether the acting president in the state in which he lives

Page 816

1 is someone whom he knows and whether this president - in this particular

2 case, Mr. Izetbegovic - whether he ever saw him. And the question is a

3 very banal one. This does not prejudice anybody in any way. We are just

4 asking the witness whether the name Izetbegovic is a name which he has

5 heard and whether he ever met the president.

6 MR. RE: My question actually, Your Honour, is: Are you aware of

7 any relationship between the 7th Muslim Mountain Brigade and

8 President Izetbegovic? And again, I'm asking it, as the Defence knows,

9 based on the witness's statement.

10 THE WITNESS: [Interpretation] All I know is that

11 President Izetbegovic visited on several occasions the 7th Muslim

12 Brigade, just as he visited the corps. He would tour all the units.

13 Now, if you can extract something from that kind of relationship, I don't

14 know.

15 MR. RE:

16 Q. I want to ask you about discipline within the 7th Muslim Mountain

17 Brigade. And obviously I'm only asking you as an ordinary soldier what

18 you knew about discipline within the brigade, to head off any possible

19 objections to this line of questioning. The 7th Muslim Mountain Brigade,

20 you've told us, had military police. What did the military police do and

21 were they used to enforce discipline and how did they do so? Can you

22 please give me an answer to that.

23 A. Discipline in the 7th Muslim Brigade was set at the start. When

24 you came to the 7th Muslim, there was no mistreatment of any kind. You

25 just lived that way, according to Muslim customs, and the conduct of each

Page 817

1 and every member of the Muslim Brigade was linked to that.

2 Q. Were you aware of any soldiers, apart from the instances you

3 described yesterday of soldiers being detained at the correctional

4 facility for theft and also for alcohol, drinking alcohol, were you aware

5 of any soldiers in the 7th Muslim Mountain Brigade being prosecuted for

6 criminal offences such as those against the Geneva Conventions and the

7 Laws of War you told us that you were told about yesterday, in your time

8 at the brigade?

9 A. I don't know.

10 MR. RE: That completes the examination-in-chief.

11 Your Honours, I have an application I wish to make in the absence

12 of the witness in relation to his evidence.

13 JUDGE ANTONETTI: [Interpretation] Fine.

14 I must tell the witness that he needs to come back tomorrow at

15 quarter past 2.00. I would kindly ask him to be here at 2.00, an

16 tomorrow the Defence counsels of the two accused will ask him questions.

17 Can the Defence team tell us approximately how much time they

18 will need tomorrow?

19 MS. RESIDOVIC: [Interpretation] Your Honours, the

20 cross-examination by General Hadzihasanovic's Defence will not be

21 lengthy, but I just have to consult today's testimony, the transcript of

22 it, and I assume that it might take half an hour.

23 JUDGE ANTONETTI: [Interpretation] Fine. Thank you very much.

24 Mr. Kubura's counsel now, you have the floor.

25 MR. IBRISIMOVIC: [Interpretation] Your Honours, about the same

Page 818

1 time for the Kubura Defence team.

2 JUDGE ANTONETTI: [Interpretation] Fine. So we'll need an hour.

3 And the Prosecution may wish to re-examine the witness. The

4 Trial Chamber may also wish to ask the witness a number of questions.

5 So, Witness, you shall now be leaving the courtroom and you shall

6 be returning here at 2.00, 2.00 p.m. And I believe that at around 4.00

7 you will be able to return home and the flight has been organised for

8 you. So see you again tomorrow.

9 [The witness stands down]

10 JUDGE ANTONETTI: [Interpretation] The Prosecution, you have the

11 floor.

12 MR. RE: Thank you, Your Honours. The Prosecution has -- I have

13 an application which we reluctantly make, and I'm sure Your Honours have

14 some inkling of what I'm about to say.

15 Your Honours, the Prosecution -- the Prosecution provided Your

16 Honours with a copy of the witness's statement some weeks ago for Your

17 Honours' pre-trial-preparation purposes. Your Honours this morning

18 reminded the witness of his rights under Rule 89(E) in relation to

19 self-incrimination. The witness's testimony in some significant regards

20 has been at odds with the -- with both the statement the witness provided

21 to the Prosecution, which was signed last year, and in two proofing

22 sessions we had on Sunday and Monday. The Prosecution confirmed with the

23 witness on both Sunday and Monday that the information contained in his

24 statement was in fact correct. The Prosecution, pursuant to Your

25 Honours' ruling last week, provided the witness with a copy of his

Page 819

1 statement to take home and make any changes that he felt were necessary

2 in B/C/S -- in his own language -- to the statement. The witness the

3 next day came back and had a proofing session, which he made several

4 minor corrections to the statement. He didn't write on the statement,

5 but he marked on the edges of the statement those bits of the statement

6 which he considered to be slightly incorrect. One, for example, was a

7 translation of "Blue Falcons," which was translated as "blue hawks" into

8 Bosnian, which is why it was in fact corrected.

9 I attempted to lead evidence from the witness in accordance with

10 his statement, given to the Prosecution, and what he had told me and an

11 investigator and two different translators on Sunday and Monday of this

12 week which, as far as the Prosecution was concerned up until at least

13 midday, when we bid him farewell yesterday, was in fact a correct version

14 of the evidence he was going to give.

15 The witness has departed from his evidence -- from his statement

16 and the instructions he gave the Prosecution yesterday in several

17 significant, very significant features. Your Honours will of course

18 appreciate from the summary the most significant is the witness told the

19 Prosecution yesterday and in fact signed a statement to the effect that

20 he had directly witnessed the death of Zvonko Rajic and that Serif

21 Patkovic, the commanding officer of the 2nd Battalion, his commanding

22 officer, had in fact shot Zvonko Rajic.

23 The witness has made a number of other, in evidence -- has also

24 substantially changed other parts of his evidence. There are quite a

25 few, and I don't have the time at the moment to go right through them.

Page 820

1 The application is this, Your Honour: The Prosecution seeks the

2 Trial Chamber's leave to cross-examine the witness in relation to

3 inconsistencies between the statement he provided and the evidence he has

4 given. The Prosecution isn't in a position tonight to outline each and

5 every one of those inconsistencies, because we have to go back and look

6 at the transcript and compare it to the relevant portions of his

7 statement and his evidence.

8 The Prosecution very reluctantly makes this application because

9 we were hoping that the witness would give evidence that was truthful in

10 all respects, and of course the Prosecution is very mindful of the way

11 Your Honours have approached it and the fact that the witness has given

12 evidence on his oath about various things.

13 However, there is a precedent -- there are several precedents in

14 the Tribunal for allowing the Prosecution to treat a witness as adverse

15 or hostile to the common-law method of dealing with the witness of a

16 party, and I can refer Your Honours directly to two Trial Chamber

17 rulings; one of Trial Chamber I and one of Trial Chamber II. The first

18 one is in the Brdjanin and Talic trial, a ruling of His Honour Judge

19 Agius on the 23rd of January, 2002 at page 677 of the transcript, where

20 the Trial Chamber ruled on the application of the Prosecution that the --

21 a party producing a witness could ask the permission of the Trial Chamber

22 to treat that witness as adverse or hostile - I'm just paraphrasing - and

23 you would be able to put to him prior out-of-court statements and

24 cross-examine him as to what he said before and what he said in court and

25 to try and elicit the truthful version, which one is true.

Page 821

1 The second one was in relation to a motion the Prosecution filed

2 in October this year. That was on the 20th of October this -- sorry, the

3 16th of October in the case of Blagojevic and Jokic. That was Trial

4 Chamber I. And the motion is headed "Prosecution's motion for leave to

5 ask leading questions of adverse witnesses if necessary."

6 His Honour Judge Liu ruled on the motion on the 20th of October

7 2003, granting the Prosecution motion. In granting the Prosecution

8 motion, the -- His Honour Judge Liu said - and this is at page 3102 and

9 3103 of the transcript - "As a practice all proceedings should be

10 conducted in accordance with the normal way, that is, try to avoid the

11 leading questions by examination-in-chief. But anyway, if the

12 Prosecution finds that there is any inconsistency with the previous

13 statement of the witness -- or sorry, or the witness tries to avoid the

14 -- to answer the questions, the Prosecution should refer to matter to the

15 Chamber and the Chamber will decide whether to allow this witness to

16 answer that question. And at some occasions we might go to the private

17 sessions to hear the answer of that witness. By saying so, the motion of

18 the Prosecution is granted."

19 I note the time, Your Honours. It's one minute to 7.00. This

20 is a fairly important issue in respect of this witness's evidence and the

21 summary we provided. Could I ask Your Honours to allow me to complete

22 addressing you on this point tomorrow morning, or if the legal officer

23 from Chambers would like you to provide us with anything in writing or

24 any decisions -- any other decisions we can find. We haven't been able

25 to find anything from the Appeals Chamber, but we have looked.

Page 822

1 JUDGE ANTONETTI: [Interpretation] Fine. The question you are

2 raising before the Trial Chamber is to understand whether the Trial

3 Chamber can authorise you to question the witness, given the fact that

4 the witness has made statements which are contrary to what he has said

5 before.

6 This is an important case, and these questions can only be put if

7 you file a request in writing so that the Defence team can state its

8 position. We shall render a decision pursuant to the request, and in the

9 event that you request the witness again. In that case, the witness has

10 to be brought back again.

11 But I would like to remind you Rule 39 of the Rules of Procedure

12 and Evidence means that the Prosecutor can question witnesses, but this

13 Rule stipulates that there is a clear distinction between the witnesses,

14 the victims, and the suspects. Now, as far as the suspects are concerned,

15 when this examination is being conducted you should stipulate to the

16 witness that he or she has a number of rights so that the person has the

17 right to remain silent, has the right to be defended by a counsel, and

18 when the suspect wishes to remain silent, then the procedure is quite

19 special.

20 Here, as regards Witness BA, we face a particular situation.

21 This witness is not suspect. He's being examined and questioned as a

22 simple witness. He makes statements which are made in -- as the

23 procedure unfolds, which are less stringent than those mentioned in

24 Article 49. It so happens that his answers do not tally with what he has

25 said previously. So as you know, these are oral proceedings; what counts

Page 823

1 is what the witnesses actually tell us when they are being called and

2 when they answer the questions put to them by the Prosecution and when

3 they answer the questions put to them by the Defence teams. According to

4 the Rules of Procedure and Evidence, nothing seems to prevent a simple

5 witness, an ordinary witness, to make a statement in a given period of

6 time and to adopt a different position at a different time. What counts

7 is what he tells us under oath.

8 Let me remind you that pursuant to Rule 39 he does not make the

9 solemn declaration -- he is not made to make a solemn declaration. The

10 conditions of this questioning is something which is out of the control

11 of the Trial Chamber, and the potential rights of the witness is not

12 something that he is aware of, even though he were in the position to be

13 a suspect witness, he may turn around and say, "I have nothing to say."

14 And you raise, therefore, an important question which deserves a request

15 in writing and a response by the Defence.

16 On two occasions you say that this Tribunal was -- ruled on these

17 two points, and we can only answer your question in writing. If we feel

18 that the witness can be questioned again, then we'll have ample time to

19 bring -- to call the witness back again.

20 As things stand today, we ask you to file a request in writing in

21 which you are asked to spell out the most important points and then we

22 will proceed with the cross-examination.

23 MS. RESIDOVIC: [Interpretation] Mr. President, just one more

24 minute. Since the Prosecutor has said that he has completed the

25 examination-in-chief of the witness, I should like to ask the Trial

Page 824

1 Chamber to confirm that we start the cross-examination of this witness

2 tomorrow, and after that we shall decide on the proposals made by the

3 Prosecution. Have I understood you correctly?

4 JUDGE ANTONETTI: [Interpretation] Yes, quite.

5 MS. RESIDOVIC: [Interpretation] Thank you.

6 JUDGE ANTONETTI: [Interpretation] Mr. Kubura's Defence team,

7 anything to add?

8 MR. IBRISIMOVIC: [Interpretation] Your Honours, that is the

9 identical position of the Kubura Defence as well.

10 JUDGE ANTONETTI: [Interpretation] Tomorrow --

11 MR. RE: Your Honour, I was in error. I apologise. I was in

12 error when I said I completed my examination-in-chief. Whey meant to say

13 was subject to Your Honours' ruling on that point.

14 The Prosecution does not consider its examination-in-chief

15 finished until that important point is resolved. And as Your Honour

16 quite rightly says, it's something on we should file written submissions

17 and it should be responded to.

18 So could I propose a practical solution, and that the Prosecution

19 be allowed not to close its case with that witness for the moment,

20 because, as I've said, it's a very important issue and there are other

21 Trial Chamber decisions on this point.

22 We have other witnesses here at the moment waiting to give

23 evidence. They've been brought here at Tribunal expense. Could Witness

24 BA be allowed to return home and -- Your Honours, we will file something

25 fairly soon in relation to that. We obviously have to go through the

Page 825

1 evidence and the statements and compare the two and put proper reasons in

2 writing -- allow him to go home and allow the Prosecution to call the

3 other two witnesses tomorrow?

4 The reason I say this is because it may impact upon the

5 cross-examination of the Defence. If we call other evidence in relation

6 to the matters I outlined, it may have some impact on the way the Defence

7 cross-examines Witness BA. So my -- the Prosecution proposes that we

8 adjourn BA's evidence and continue with other witnesses.

9 JUDGE ANTONETTI: [Interpretation] You raise another question.

10 You ask us to interrupt the examination-in-chief so that we can answer

11 your question in writing, which makes the witness situation rather

12 difficult. He would then need to go home, could -- might find it

13 difficult in such a situation, whereas he is here now.

14 Also, the Trial Chamber, if seized with this matter, early

15 tomorrow morning can render a decision in writing. But the difficulty

16 arises because the Defence must respond in writing and the Defence will

17 undoubtedly not be ready. Given that you have all night to prepare your

18 submission in writing, tomorrow morning we can be seized with this

19 matter, but the Defence team will not be able to respond because the

20 hearing resumes tomorrow at quarter past 2.00.

21 So if you feel that the examination-in-chief is completed and

22 that the Defence team can proceed with its cross-examination, I think it

23 would be better that you call the witness back afterwards. But as things

24 stand today, we cannot ask the witness to go home now and you will come

25 back in a few months' time because, as regards their testimony, I think

Page 826

1 we will not be quite sure about the way in which this testimony was

2 conducted. He is testifying today and is not under any pressure

3 whatsoever.

4 This is what I suggest, which I think is the wisest solution,

5 which is very much in line with the Rules of this Tribunal: I think we

6 should proceed with the cross-examination tomorrow. You can ask him

7 further questions tomorrow. And Prosecution, you can re-examine the

8 witness if you so wish. And in that case, you can file your submission

9 and the witness can be re-examined at a later stage. We find ourself in

10 the situation where a witness is not suspect; he has made a number of

11 statements that have been taken in which he was not -- it was not made

12 known to him that he had any kind of rights. He was not asked to make

13 these statements under oath. And today the witness is taking up a

14 position which is not in line with what the Prosecution expected. So as

15 you know, we have different -- witnesses come and go. And what is

16 important to us and what he says under oath. He has said a number of

17 things today under oath.

18 So therefore, we shall resume tomorrow at quarter past 2.00. You

19 can, of course, file your written submission and inform the Defence about

20 this and tell them what this submission contains so that they -- the

21 Defence can respond.

22 The court stands adjourned. We shall resume tomorrow at quarter

23 past 2.00.

24 --- Whereupon the hearing adjourned at 7.10 p.m.,

25 to be resumed on Wednesday, the 10th day of

Page 827

1 December, 2003, at 2.15 p.m.