Tribunal Criminal Tribunal for the Former Yugoslavia

Page 44186

 1                           Thursday, 28 November 2013

 2                           [Open session]

 3                           [The accused entered court]

 4                           [The witness takes the stand]

 5                           --- Upon commencing at 9.04 a.m.

 6             JUDGE KWON:  Good morning, everyone.

 7             Mr. Robinson, with respect to the two associated exhibits, the

 8     English translation of which were uploaded last night, the Chamber has

 9     reviewed them and is of the opinion that one of which could be admitted.

10     65 ter number 24780B, which is a VRS IBK original log-book, we can admit

11     two pages which were actually admitted in the Tolimir case.  So shall we

12     assign the number for that.

13             THE REGISTRAR:  Yes, Your Honour.  That will be Exhibit D4131.

14             JUDGE KWON:  As regards 1D29064, which is a chronology of events

15     of the BiH army, in light of the fact that witness stated that he could

16     not comment on that document, Chamber is of the opinion that it is not

17     dispensable and inseparable part of the transcript so we will not admit

18     it.

19             MR. ROBINSON:  Thank you, Mr. President.  And we hope that we

20     won't make you do any last-minute reviews of these untranslated documents

21     in the future.  Thank you.

22             JUDGE KWON:  Good morning, Ms. Edgerton.  Please proceed.

23             MS. EDGERTON:  Thank you.

24             If I may, Your Honours, I've just been updated with some

25     information from Mr. Reid.  The 65 ter number 24780B which Your Honours

Page 44187

 1     have just admitted, what we had noticed, and we will double check but

 2     I just wanted to put this on the record, we had noticed that the uploaded

 3     English translation didn't actually quite correspond with the dates that

 4     were discussed in the Tolimir case.  And overnight, we had that

 5     additional page translated so that the English translation actually does

 6     correspond now, and we've uploaded that as an English translation under

 7     24780B -- A.

 8             JUDGE KWON:  A.

 9             MS. EDGERTON:  A.  Apologies, Your Honour.

10             JUDGE KWON:  But I don't follow.  Additional pages?

11             MS. EDGERTON:  Well, what we saw was uploaded as the English

12     translation for that document didn't, in terms of the date entries in the

13     log-book, correspond with what was actually discussed in the Tolimir

14     case.  So what we did was have that additional page that corresponded

15     with the date of the 15th translated and uploaded, but that just happened

16     sort of at speed yesterday.  All that to say the English translation now

17     completely corresponds with what was discussed in the Tolimir case.

18             JUDGE KWON:  So we can use the A document?

19             MS. EDGERTON:  Correct.

20             JUDGE KWON:  Thank you.  That will be done.

21             MS. EDGERTON:  Thank you.

22                           WITNESS:  MILENKO TODOROVIC [Resumed]

23                           [Witness answered through interpreter]

24                           Cross-examination by Ms. Edgerton:

25        Q.   Good morning, Mr. Todorovic.

Page 44188

 1        A.   Good morning.

 2        Q.   Mr. Todorovic, today I'm going to ask you to have a look at some

 3     of your previous evidence that was recorded during your interview with

 4     the ICTY in 2010, and some of the evidence you gave earlier this week in

 5     the prosecution of General Mladic.

 6             Now, your interview, your audio-recorded interview with the ICTY

 7     in 2010, with respect to that, when you appeared earlier this week in the

 8     Mladic case, you were asked about that interview, whether at that time

 9     you told the truth.  And you said yes.  That's right, isn't it?

10        A.   Yes.

11        Q.   So maybe we could have a look at the transcript of that

12     interview.

13             MS. EDGERTON:  And it's 65 ter number 25602.  And once it's

14     called up, I'd like to go to page 33 in English and page 31 in B/C/S,

15     please.

16        Q.   So, Mr. Todorovic, when you were asked in your interview:

17             "Do you remember where you were when you received or when you got

18     information that Srebrenica fell?"

19             Which you see on the page in front of you, and you answered:

20             "At the corps command.  We had a daily briefing between 6 and

21     8 p.m., where what was done the previous 24 hours was discussed and also

22     what has to be done the following ..."

23             When you gave that answer, that was true, right?

24        A.   Yes.

25        Q.   Thank you.

Page 44189

 1             MS. EDGERTON:  I'll go through a number of pages of this

 2     transcript, Your Honour, and then just deal with them all at once, if

 3     I may.

 4             JUDGE KWON:  Yes, please go ahead.

 5             MS. EDGERTON:

 6        Q.   Now, in your testimony in the Mladic case yesterday, which, if we

 7     want to look at the pages in English, is 65 ter number 25704, and pardon

 8     me, not yesterday, earlier this week, in your testimony in the Mladic

 9     case at transcript page 19821, you were asked how long after that corps

10     command meeting where you heard about the fall of Srebrenica you received

11     the order to prepare for the prisoners.  And I'll read this to you very

12     slowly.  You said:

13             "Looking back to that time, it's difficult for me to say if it

14     was 1900 hours, 2000 hours of the day, or in the morning of the following

15     day.  At any rate, soon.  There was an order that followed, or the order

16     that followed soon thereafter."

17             And then the question came:

18             "So when you refer to 1900 hours or 2000 hours, you're referring

19     to the evening of the corps command meeting when you learned of the fall

20     of Srebrenica?"

21             "A.  Yes, I meant that day.  Actually, it could only have

22     happened at the time the briefing ended and when I went to my office,

23     which was about 100 metres from the briefing room, and that was when the

24     telegram could have been on my desk.  It could have been 2100, 2200, or

25     perhaps at some point the following day."

Page 44190

 1             So when you gave those answers to those questions earlier this

 2     week, in front of another Chamber of this Tribunal, you were telling the

 3     truth, right?

 4        A.   Yes.

 5        Q.   And to go back to your interview -- and we will just go back and

 6     forth between those two documents for a sec.  To go back to your

 7     interview again - 65 ter number 25602, English page 36, and B/C/S

 8     page 33 - in your interview, with respect to your task, you explained:

 9             "The point was that we were supposed to prepare the hangars for

10     that many people who were about to arrive the following day."

11             So when you said that, you were telling the truth; right?

12        A.   Yes.  On the following day, or the following days.  It depends on

13     how it was translated.  In any case, it was a little while later.

14        Q.   Well, in fact, you told the Mladic Trial Chamber on Monday of

15     this week that the order was urgent.  And at transcript page 19821, the

16     page we just saw, you said:

17             "Preparations had to be done as soon as possible because they

18     would follow soon after in a day or two," referring to the prisoners.

19             So what you told the Mladic Trial Chamber was true; right?

20        A.   Yes.

21        Q.   Thank you.  Now, just staying on your interview --

22             MS. EDGERTON:  If we could go over to page 41 in English and

23     page 39 in B/C/S, please.

24        Q.   So here, in your interview, when you were asked where you

25     contacted General Tolimir, you said it was at the Main Staff by phone via

Page 44191

 1     a three-digit number.  That's true; right?

 2        A.   Yes.

 3        Q.   Thank you.

 4        A.   May I?

 5             JUDGE KWON:  Yes, Mr. Todorovic?

 6             THE WITNESS: [Interpretation] At that time, I said that the

 7     number was possibly 317.  However, later on, I was shown a document with

 8     a different number.  This refreshed my memory that the numbers were

 9     actually 165 and 168.

10             JUDGE KWON:  Thank you.

11             MS. EDGERTON:

12        Q.   Now, we've just talked about how you told the Mladic Chamber

13     earlier this week that the matter of the arrival, the prospective arrival

14     of the prisoners at Batkovic was urgent.  But it's also correct - and if

15     you like, we could look at the page in the Mladic transcript, which is

16     19826 - it's also correct that despite the urgency, guard reinforcements

17     at Batkovic were never requested, were they?

18        A.   I said this, with this regard:  Some of the preparations were

19     completed, or actually they were on the way.  The cereals were taken out

20     and the hangar was emptied, and the rest of the preparations would ensue.

21     Amongst that was water supply, toilet facilities, security, however that

22     was interrupted.

23        Q.   That's right.  What I'll do to help you is I'll tell you what you

24     told -- I'll remind you what you told the Trial Chamber in the Mladic

25     case.  You were asked the question, could military policemen be engaged

Page 44192

 1     without your proposal to the corps commander, and your answer was this:

 2             "In principle, I was supposed to make that proposal, but in

 3     urgent situations or when things are developing quickly, the camp warden

 4     could request a reinforcement of 20 to 30 soldiers.  But we never

 5     actually got to that point because all activity was halted in that

 6     regard."

 7             That's true, what you told the Mladic Trial Chamber, isn't it?

 8        A.   Yes.  This is precisely what I was going to tell you but then you

 9     interrupted me and read it out to me.

10        Q.   Now, if we could go back over to your interview, in

11     February 2010, and look at page 46 in English --

12             JUDGE KWON:  Just a second, Ms. Edgerton, your question was --

13     previous question was whether it's correct guard reinforcements at

14     Batkovic were never requested.  Were you referring to this paragraph?

15             MS. EDGERTON:  Yes, I was.

16             JUDGE KWON:  Thank you.  Please continue.

17             MS. EDGERTON:  If we could -- yes.  Page 46 in English, 44 B/C/S.

18        Q.   Now, in your interview, you were asked, and you see it on the

19     page in front of you, why General Simic would call the brigade commander

20     from a different corps instead of calling the corps commander, and that

21     was after finding out that prisoners weren't coming, and you said:

22             "Well, the relationships at that time were not all perfect or

23     professional, so that was the time when the commander of the Drina Corps

24     was to be replaced.  So Zivanovic was supposed to step down and Krstic

25     was supposed to become the commander of the Drina Corps.  So the

Page 44193

 1     relationships were not that great."

 2             So that answer is also true, the answer you gave in

 3     February 2010; right?

 4        A.   Yes.  That was my assumption as to why things were the way they

 5     were.  Pandurevic and the Zvornik Brigade were the unit adjacent to the

 6     East Bosnia Corps, our first neighbours, as it were.

 7             JUDGE KWON:  I'm not clear about this situation.  What is this

 8     event referring to?  If you could clarify with the witness.  Simic

 9     calling from where to who.

10             MS. EDGERTON:  Absolutely.  Your indulgence for just one second,

11     Your Honour.

12             JUDGE KWON:  Yes.

13             MS. EDGERTON:

14        Q.   In your --

15             MS. EDGERTON:  If we could go over to English page 38 of the

16     interview, and unfortunately I don't have the B/C/S corresponding page

17     reference handy.

18        Q.   At this page in the interview, Mr. Todorovic, you gave evidence

19     that you were instructed by your commander, Simic, to check with Tolimir

20     about when prisoners were going to arrive.  And you called and had the

21     conversation with Tolimir that I just asked you about, which you said --

22     when you said you spoke with him at the Main Staff and Tolimir instructed

23     you to stop the preparation.  Now, you said:

24             "Maybe that same night or in the morning of the following day,

25     General Simic called the commander of the Zvornik Brigade, Pandurevic,

Page 44194

 1     and asked him if he had any captured people in this area, so -- and if

 2     so, he could send them to me, to Batkovic."

 3             That's true; right?

 4        A.   Yes, yes.

 5        Q.   Now, if we flip back over to page 46, you were asked why Simic

 6     would call the brigade commander, and you offered that, at that time, the

 7     commander of the Drina Corps was to be replaced.  So Zivanovic was

 8     supposed to step down and Krstic was supposed to become the commander of

 9     the Drina Corps.  That happened on 13 July 1995, didn't it?  The

10     handover?

11        A.   About that time.  I'm not sure of the date because it happened in

12     a different unit, but in any case, that was approximately the time when

13     that happened.

14        Q.   And this telephone call between General Simic and Pandurevic

15     happened the same day you received -- you made the telephone call to

16     Tolimir at the Main Staff, didn't it?

17        A.   Yes.  After I informed General Simic that the prisoners would not

18     arrive, although they had been announced, he had a problem, and he had

19     the idea to do what he did.  He called Pandurevic, perhaps five minutes

20     or perhaps an hour, two hours, after he had received that information.

21     It's very difficult to be sure about the timing of events after such a

22     long time.

23        Q.   Thank you.  Now I'm just going to ask you one last question --

24             JUDGE KWON:  Just a second.  When you said, Mr. Todorovic,

25     General Simic called Pandurevic, do you mean say that General Simic

Page 44195

 1     talked to Pandurevic in person or he called just Zvornik Brigade command?

 2             THE WITNESS: [Interpretation] I was not there.  I was not present

 3     during that conversation.  After that conversation, General Simic asked

 4     me to come to his office and he told me the following:  "I have just

 5     spoken with Pandurevic," he said, "And he told me that in his area of

 6     responsibility, there were people and they were members of the BiH army

 7     who could be taken prisoners because they were withdrawing in the

 8     direction of Tuzla."  And then General Simic ordered me to do what you

 9     can read in the transcript, and that was to convey his order to the

10     battalion commander, the commander of the battalion of the military

11     police, to send a dozen or so of military policemen and the necessary

12     number of lorries with tarpaulins who would receive prisoners and bring

13     them back to Batkovici.

14             JUDGE KWON:  Do you by any chance know where Pandurevic was at

15     the time?

16             THE WITNESS: [Interpretation] I didn't see it and I didn't know.

17     I suppose in the area covered by his unit.

18             JUDGE KWON:  Thank you.  Please continue.

19             MS. EDGERTON:  Thank you.

20        Q.   One last question related to the evidence you gave to

21     Mr. Stojanovic during your cross-examination in the Mladic case, and

22     that's at transcript page 19872.  You were asked whether you were at any

23     moment, regarding General Mladic, whether you were at any moment under

24     the impression that General Mladic, and this was referring to 1995, had

25     any kind of ambition to carry out a putsch.  And your answer was:

Page 44196

 1             "I never had that impression.  Quite the contrary.  He was modest

 2     and carried out his duties in a strictly military fashion."

 3             That's also true; right?

 4        A.   Yes.

 5             MS. EDGERTON:  I have no further questions, then, Your Honours.

 6             Thank you, Mr. Todorovic.

 7             JUDGE KWON:  Thank you, Ms. Edgerton.

 8             Yes, Mr. Karadzic, do you have any re-examination?

 9             THE ACCUSED: [Interpretation] Well, just one, Your Excellency.

10                           Re-examination by Mr. Karadzic:

11        Q.   [Interpretation] Do you remember, witness, Colonel, whether in

12     the end of July, there were any exchanges of prisoners from Srebrenica?

13             MS. EDGERTON:  Your Honours, I didn't ask a single question about

14     exchanges whatsoever.

15             THE ACCUSED: [Interpretation] Thank you.  Then I withdraw it.

16     I won't insist.  I'll deal with it through someone else.  Thank you, I

17     have no further questions.

18             THE WITNESS: [Interpretation] The chairman of the commission for

19     exchanges can give you a precise answer about that.  I don't know

20     exactly.

21             JUDGE KWON:  Thank you, Mr. Todorovic.

22             Well, that concludes your evidence, Mr. Todorovic.  On behalf of

23     the Chamber, and the Tribunal as a whole, I would like to thank you for

24     your coming to The Hague to give it.  Now you are free to go.

25             THE WITNESS: [Interpretation] Thank you very much for your

Page 44197

 1     expediency.  Thank you very much.  I wish you pleasant holidays that are

 2     upcoming.

 3             MS. EDGERTON:  And if I could just deal with the exhibits,

 4     Your Honour.

 5             JUDGE KWON:  Yes.

 6                           [The witness withdrew]

 7             MS. EDGERTON:  If we could add, please, pages 33 in English and

 8     31 in B/C/S to the transcript pages that were exhibited as associated

 9     exhibits, I'm sorry, there was likely a provisional P number or D number

10     assigned to those pages.

11             JUDGE KWON:  You're referring to the interview?

12             MS. EDGERTON:  Yes, correct.

13             JUDGE KWON:  Yes.  Any objection?

14             MR. ROBINSON:  No, Mr. President.

15             JUDGE KWON:  Unless the parties have agreed which pages should

16     have -- should be admitted from the interview, which were dealt with in

17     the transcript?

18             MR. ROBINSON:  Yes, Mr. President.

19             JUDGE KWON:  Shall we assign the number for now?  The number has

20     been -- yes --

21             MS. EDGERTON:  That we could add these pages to it.  Thank you.

22             JUDGE KWON:  We will admit it.

23             THE REGISTRAR:  As Exhibit D4134, Your Honours.

24             JUDGE KWON:  So page 33 will be added.

25             MS. EDGERTON:  And page 46 in English and 44 B/C/S.

Page 44198

 1             JUDGE KWON:  Yes.

 2             MS. EDGERTON:  Those two pages, please.

 3             JUDGE KWON:  That will be done.

 4             MS. EDGERTON:  Thank you.

 5                           [Trial Chamber confers]

 6             JUDGE KWON:  In the circumstances, the hearing is adjourned.  We

 7     will resume tomorrow at 9.00, or shall we -- can we begin with the

 8     examination-in-chief?

 9             MR. ROBINSON:  Well, the problem is that the witness has to be

10     brought from the Detention Unit and his lawyer has to be also rounded up.

11     I don't think that we will have time for that.  I also think the

12     examination-in-chief will consist only of the -- bringing his statement

13     into evidence, nothing more, so we wouldn't save that much time.

14             JUDGE KWON:  Yes, Mr. Tieger?

15             MR. TIEGER:  I wasn't going to rise on this point, but as

16     I indicated to Mr. Robinson yesterday, it was my understanding of the

17     courtroom practice that when the -- when there are substantial

18     last-minute additions to the statements, that that evidence is normally

19     led live so that may add to the time involved.  That's been the practice.

20     It appears to me that the -- well, I don't think there is any way to

21     argue against the fact that these additional 12 pages or so represent

22     something much more than an insubstantial addition.  So I think we have

23     that issue to deal with as well.

24             MR. ROBINSON:  Mr. President, I think that would be useful to

25     deal with that issue right now so that we don't waste time tomorrow

Page 44199

 1     because, first of all, those additions are adjudicated facts that were

 2     laid out to the witness and the witness rebutted them.  And it's not been

 3     our practice, as far as I know, that we are required to lead live

 4     additions to the statements made during the proofing with Dr. Karadzic,

 5     and we would consider that to be an unfair penalty that would implicate

 6     the equality of arms.  So we would prefer, if the Prosecution was

 7     genuinely not ready to cross-examine tomorrow, that the cross-examination

 8     of the witness take place at a time when you believed they have had a

 9     reasonable time, not penalise us by depriving us of calling other

10     witnesses by wasting court time leading things live.

11             JUDGE KWON:  Wherever we may be heading but the Chamber is

12     concerned about the last-minute change of the statement.  Please bear

13     that in mind in the future.

14             Yes.  Mr. Tieger, would you like to add anything?

15             MR. TIEGER:  First of all, I don't think there is any

16     implications to the equality of arms.  I think it applied across the

17     board.

18             Secondly, Mr. Robinson may want to characterise it as some kind

19     of penalty, but I think the point was that there are rules for the

20     92 ter submissions, and if there is a failure to -- and in some respects

21     an ongoing failure -- to fulfil those terms, then the answer is to resort

22     to the normal way of presenting evidence.  I think that's the way the

23     Court's viewed it.  And clearly no, in our submission, equality of arms

24     issues.  Actually, my recollection is that the Court was and certainly

25     would have been as concerned with -- had -- to the extent a similar

Page 44200

 1     approach was used or misused by the Prosecution.

 2             So I think it's -- the question is whether or not the rules have

 3     been fulfilled and that's always available to the Defence.  I also note

 4     that this witness was asked about adjudicated facts before, so it's not

 5     as if this was something that only occurred to the Defence or only could

 6     have occurred to the Defence at the last minute.  The draft statement

 7     that existed before addressed adjudicated facts.

 8             JUDGE KWON:  Before the Chamber rises to consider the issue but

 9     I'd like to know whether, just in case, the examination-in-chief could

10     start sometime today?

11             MR. ROBINSON:  Yes, Mr. President.  But I would like to be heard

12     on this issue, if you -- so that you have a full picture.

13             JUDGE KWON:  Yes.

14             MR. ROBINSON:  So you may recall that at some point Dr. Karadzic

15     was -- decided that he wanted these adjudicated facts to be in these

16     statements so that we could clearly rebut adjudicated facts, and when the

17     Chamber was making its deliberations, it would know clearly what

18     adjudicated facts we were rebutting.  And we started that practice of

19     doing that here in The Hague because the investigators hadn't included

20     adjudicated facts in the statements that they take in the field, and we,

21     at the same time, gave instructions to the investigators to start to

22     incorporate adjudicated facts into the statements and they started doing

23     that and, in fact, they did that with this witness.  But unfortunately,

24     what they did with this witness was they only asked him about the

25     adjudicated facts for Prijedor and didn't ask him about the adjudicated

Page 44201

 1     facts for Omarska which is where most of his information comes from.  So

 2     when we saw that, it was necessary to improve that by asking him those

 3     questions when he arrived in The Hague.  He's incarcerated and we don't

 4     have free access to him in Bosnia.  So that's why it was done.

 5             But the issue about equality of arms is that we have

 6     investigators in the field who are essentially policemen who are doing

 7     the job that they do and we don't have the kind of -- we have maybe

 8     20 per cent of the staff that the Prosecution has.  If you look at the

 9     Prosecution's witness interviews that form the basis of 92 ter statements

10     they were always at least one, sometimes two lawyers, present during

11     those interviews to take the statements, make them the way they want to.

12     For us, we can't do that.  We don't have the resources to send lawyers

13     like myself to the field and take statements like the Prosecution does,

14     and as a result, the product that we get from our investigators isn't

15     always as good as what the Prosecution is able to produce.  And so that's

16     what I meant by equality of arms.  So I think that we deserve some

17     flexibility and consideration for that.  And we are very concerned that

18     if we have to lead things like that live, let's say it takes half an hour

19     or 45 minutes, we could call two other witnesses in that time and we are

20     being deprived of that, unless you want to give us additional hours for

21     our Defence case.

22             So for all of those reasons, we would prefer that if the

23     Prosecution is genuinely found by the Chamber to be unable to begin its

24     cross-examination based on this new material, that the remedy be that

25     they be given more time to prepare.  Just like the remedy for all their

Page 44202

 1     disclosure violations was to give us more time to prepare, not to cost

 2     them any additional hours in their case or to exclude any evidence.

 3     Thank you.

 4             JUDGE KWON:  Yes?

 5             MR. TIEGER:  I really don't want to have the last word but I just

 6     feel like this is something that needs to be said.  To assert that the

 7     failure to ask the commander of the Omarska camp about adjudicated facts

 8     related to Omarska is an equality of arms issue is not correct.  It's

 9     simply an issue of attention and care in the most simple, simplistic way.

10     So I don't want to rub it in, but I think that's really an assertion that

11     can't stand.

12             JUDGE KWON:  We will rise for 15 minutes.

13                           --- Recess taken at 9.45 a.m.

14                           --- On resuming at 10.03 a.m.

15             JUDGE KWON:  The Chamber has reviewed the statement, revised

16     statement, and is now of the view that the addition is so substantial and

17     significant, and as a consequence, following our practice, the added part

18     should be led live by the Defence.  So I'll ask the Registry how quickly

19     the witness, next witness, could be brought in.

20                           [Trial Chamber and Registrar confer]

21             MR. ROBINSON:  Excuse me, Mr. President.

22             JUDGE KWON:  Yes, Mr. Robinson.

23             MR. ROBINSON:  Something that might influence the timing, I think

24     we will not lead those paragraphs live.  We have other witnesses from

25     Omarska, we will have those witnesses rebut the adjudicated facts, and we

Page 44203

 1     will give more time to the Prosecution for cross-examination on those

 2     issues that way, so --

 3             JUDGE KWON:  And then there is no need to bring in the witness

 4     today.

 5             MR. ROBINSON:  It seems like that would probably be correct.

 6             JUDGE KWON:  Do you have any observation, Mr. Tieger?

 7             MR. TIEGER:  I don't at the moment, Mr. President.

 8             JUDGE KWON:  Are we confident that we can finish his evidence

 9     tomorrow?

10             MR. ROBINSON:  Well, you've given three hours for

11     cross-examination which would leave another hour and a half for redirect

12     and some direct.  We can make provisions to sit until 3.00, just to be

13     sure.

14             JUDGE KWON:  Very well.

15             In the circumstances, the hearing is adjourned for today.

16                           --- Whereupon the hearing adjourned at 10.06 a.m.,

17                           to be reconvened on Friday, the 29th day of

18                           November, 2013, at 9.00 a.m.