Tribunal Criminal Tribunal for the Former Yugoslavia

Page 11948

1 Wednesday, 12th January, 2000

2 [Open session]

3 [The accused entered court]

4 [The witness entered court]

5 --- Upon commencing at 9.37 a.m.

6 THE REGISTRAR: Good morning, Your Honours.

7 Case number IT-95-14/2-T, the Prosecutor versus Dario

8 Kordic and Mario Cerkez.

9 JUDGE MAY: Yes, Mr. Sayers.

10 MR. SAYERS: Thank you, Mr. President.


12 [Resumed]

13 Cross-examined by Mr. Sayers:

14 Q. Mr. Van der Pluijm, good morning. My name is

15 Stephen Sayers. I'm one of the attorneys representing

16 Dario Kordic, and I would estimate having about 20 to

17 30 minutes of questions for you today.

18 The first one is this: As I understand it,

19 your tour of duty in Central Bosnia began on January

20 the 12th, 1993; it ended on April the 7th, 1993, with a

21 break for rest and recreation between February the 27th

22 and March the 16th.

23 A. Yes, that's right.

24 Q. So all in all, you spent approximately two

25 months total time in Central Bosnia; is that correct?

Page 11949

1 A. That's correct. I don't know exactly the

2 second date of my holidays. The 16th, you mentioned,

3 the 16th of March?

4 Q. I believe that's correct.

5 A. I don't know exactly. It's almost seven --

6 exactly seven years ago.

7 Q. Now, sir, you were present in Central Bosnia

8 at the time that the cease-fire negotiations occurred to

9 halt the fighting that occurred in the area of Busovaca

10 at the end of January of 1993; is that right?

11 A. That's right.

12 Q. And, indeed, the fighting was halted by a

13 negotiated cease-fire agreement, I believe.

14 A. Yes, it was.

15 Q. The agreement was dated January the 30th.

16 MR. SAYERS: Just for the Court's reference,

17 this agreement has already been marked as D54/1.

18 Q. And I believe, sir, and I can show you the

19 agreement if you do not recall, that the agreement was

20 negotiated by Franjo Nakic, who was the second in

21 command for General Blaskic for the Croats, and for the

22 Muslims, Colonel Dzemal Merdan, the second in command

23 of General Hadzihasanovic.

24 A. That's right.

25 Q. Also, this was in the presence of

Page 11950

1 Lieutenant-Colonel Stewart and Jeremy Fleming who also

2 signed the agreement on behalf of BritBat and the ECMM

3 respectively.

4 A. That's right.

5 Q. Is it right, sir, that Colonel Blaskic was

6 not involved in these negotiations because he had been

7 caught by surprise in Kiseljak and could not get to

8 Busovaca or Vitez without being escorted there by

9 UNPROFOR vehicles?

10 A. Yes, that's correct. He was always escorted

11 by ECMM or by BritBat.

12 Q. Do you recall, sir, that two days after the

13 agreement was signed, further high-level negotiations

14 occurred at the BritBat base in Nova Bila on February

15 the 1st?

16 A. Yes, I know that.

17 Q. And those negotiations were attended by

18 Lieutenant-General Morillon, the top soldier for

19 UNPROFOR; General Hadzihasanovic for the Muslim side;

20 Colonel Blaskic from the Croat side; and also attended

21 by Colonel Stewart.

22 A. Yes, that's right.

23 Q. As I understand it, sir, and we've looked at

24 these orders yesterday, they were marked as Exhibit

25 Z471, the implementing orders carrying into force that

Page 11951

1 ceasefire agreement were signed on February the 13th,

2 1993 in Kakanj, and they were signed on behalf of the

3 warring factions by Colonel Blaskic for the Croats and

4 by General Hadzihasanovic for the Muslims.

5 A. Yes, it was in Kakanj. The date I don't know

6 exactly.

7 Q. Those orders dealt with a wide variety of

8 subjects relating to things such as release of

9 prisoners, filling in of trenches, and a variety of

10 other things, and the orders speak for themselves; do

11 you recall that?

12 A. Yes, I do.

13 Q. All right. Now, it's true also that

14 Mr. Kordic was never involved in any of those cease-fire

15 negotiations, that he never attended any of them and

16 was never invited by anybody to attend, as far as you

17 know; isn't that correct?

18 A. Yes, that's correct.

19 Q. All right. In your statement, sir, that was

20 given to the investigators for the Office of the

21 Prosecution in December of 1996, February and March of

22 1997, you stated that there were times when you wanted

23 the top regional commanders present for discussions or

24 conversations at which commitments had to be made, and

25 there were times when you required Colonel Blaskic and

Page 11952

1 General Hadzihasanovic to be present. I'm just looking

2 at page 4.

3 You also stated that it sometimes caused

4 problems when the top ranking regional commanders sent

5 lower ranking persons such as Franjo Nakic or Colonel

6 Merdan; isn't that correct?

7 A. Yes, that's correct.

8 Q. And that was because the top ranking

9 commanders wanted to deal essentially with someone of

10 equal rank and they were not prepared to deal with

11 someone that they viewed as being lower rank to them;

12 isn't that correct?

13 A. Yes, that's right.

14 Q. Now, isn't it true that neither General

15 Hadzihasanovic, nor Colonel Merdan at any time, as far

16 as you're aware, ever insisted on negotiating with

17 Mr. Kordic or insisted that he be present at any

18 negotiations?

19 A. No, they insisted not on that.

20 Q. Nor did any other representative from the

21 Muslim side, as far as you're aware; isn't that

22 correct?

23 A. Yes, that's correct.

24 Q. You gave some testimony, Mr. Van der Pluijm,

25 concerning the purpose of the Busovaca joint

Page 11953

1 commission. As I understand it, it was to provide a

2 forum in which problems could be raised and resolved

3 between the various warring parties; correct?

4 A. Yes, that's right.

5 Q. To prevent problems like people's houses

6 being burned by both sides; correct?

7 A. Yes, correct.

8 Q. And to prevent the murder and harassment of

9 civilians, again by both sides; right?

10 A. Yes, right.

11 Q. The Busovaca joint commission, sir, was

12 originally located in the office -- actually, it was

13 originally located in an office within the Dutch

14 Transportation Battalion in Busovaca, was it not?

15 A. In the beginning, yes.

16 Q. And then ultimately it moved to Vitez, I

17 believe, according to page 1 of your statement, on

18 March the 20th of 1993.

19 A. Yes, and we had also a short period in a

20 house near the location of the transport battalion.

21 Q. In Busovaca?

22 A. In Busovaca.

23 Q. All right. Sorry for the delay, sir. I'm

24 just waiting for the interpreters to catch up.

25 Now, sir, the Busovaca joint commission, of

Page 11954

1 which you were for a time, I believe, the chairman, for

2 11 days from February 14th to February the 25th of

3 1993, --

4 A. Yes, that's right.

5 Q. -- this commission met every day at

6 approximately 8 a.m.; correct?

7 A. Yes.

8 Q. The commission meetings were chaired by an

9 ECMM representative?

10 A. Yes.

11 Q. Yes. And both warring factions were

12 generally represented by senior military

13 representatives on either side; is that right?

14 A. Yes, that's right.

15 Q. And routinely a representative from UNPROFOR,

16 the BritBat contingent of UNPROFOR, was also present

17 too?

18 A. Yes. We were supported by BritBat.

19 Q. All right. As I understand it, sir, the

20 initial meetings generally lasted from about 8 a.m.

21 to about 10 a.m. every day, followed by teams

22 composed of representatives of all sides who went out

23 into the field to investigate particular problems or

24 complaints that were raised that morning. Is that

25 correct?

Page 11955

1 A. That's correct.

2 Q. All right. And representatives of the HVO

3 forces and the ABiH forces would remain in the office,

4 along with the chairman, while the field investigations

5 were being carried out?

6 A. Yes, that's right.

7 Q. And then the teams would usually return by

8 late afternoon, 4 p.m., 5 p.m., and a debriefing

9 would then occur on the results of the investigations;

10 correct?

11 A. Yes, that's also correct.

12 Q. You yourself, sir, perceived a problem with

13 orders filtered down from the top level to the local

14 commanders or local contingents in the field on both

15 sides, did you not?

16 A. Yes, I did.

17 Q. And because of these problems, you decided to

18 take matters into your own hands and actually take

19 military representatives from both sides into the field

20 so that the local contingents, the local commanders,

21 could understand that these orders were coming directly

22 from the recognised regional local commander and that

23 those orders should be obeyed and recognised; correct?

24 A. Not quite it all. We had a meeting with

25 local commanders in the headquarters of DutchBat, local

Page 11956

1 commanders at platoon levels and higher.

2 Q. All right. This was something that you

3 instituted, though, and it actually was successful in

4 gaining a larger degree of co-operation with the local

5 forces receiving commands from higher authorities;

6 correct?

7 A. Yes, that's correct.

8 Q. And generally speaking, if you were, for

9 example, unable to get past a checkpoint, a call would

10 be placed either to Mr. Nakic or Colonel Merdan for

11 assistance, and they would give their assistance, and

12 if they were unable to procure a removal of the

13 checkpoint, then a call would be made to their

14 respective commanding officers, Colonel Blaskic or

15 General Hadzihasanovic, and the problem would then be

16 resolved quickly; correct?

17 A. It should be, yes.

18 Q. Throughout your association with the Busovaca

19 joint commission, sir, and before that, isn't it true

20 that both sides regularly accused each other of attacks

21 on civilians, murders, detentions, and keeping of

22 prisoners in poor conditions?

23 A. Yes, that's true.

24 Q. And you investigated these allegations, and

25 some were found to be true and some were found not to

Page 11957

1 be true on both sides?

2 A. Yes. We could not investigate all of those

3 incidents, but most of them.

4 Q. Both sides routinely claimed that any

5 wrongdoers would be apprehended and punished; isn't

6 that right?

7 A. Yes.

8 Q. And indeed accusations of ethnic cleansing

9 were made on both sides against each other; isn't that

10 right?

11 A. That's right.

12 Q. In fact, I think you described on page 4 of

13 your statement a few years ago that you recalled a

14 meeting on February the 5th and 6th at the Busovaca

15 joint commission where both Colonel Blaskic and Colonel

16 Merdan initially denied acts of ethnic cleansing and

17 then blamed them upon each other.

18 A. Yes, I know, but not the date exactly. But I

19 know that incident, yes.

20 Q. That's fine. Isn't it true, sir, that

21 Mr. Kordic never once attended any meetings of the

22 Busovaca joint commission, as far as you're aware?

23 A. I only met him once in a meeting in BritBat

24 in Vitez, but I don't know exactly when. We had no

25 contact in the negotiations, so I didn't recognise him

Page 11958

1 at that moment.

2 Q. The only point that I was making,

3 Mr. Van der Pluijm, was that he never actually attended

4 any of the Busovaca joint commission meetings, as far

5 as you're aware. Is that right?

6 A. Not in any Busovaca joint commission, no.

7 Q. You also told the Prosecution investigators

8 in your statement that most of the fighting in January,

9 February, and March of 1993 was carried out by

10 villagers themselves and people returning from actual

11 combat on the front lines with the Bosnian Serb army

12 forces, these people returning with their weapons. Do

13 you recall that?

14 A. Yes.

15 Q. And that remains your opinion today, sir, I

16 take it.

17 A. Yes.

18 Q. Thank you. You weren't aware of any regular

19 army units being used to carry out these combat

20 activities, were you, the fighting in January,

21 February, and March of 1993?

22 A. No.

23 Q. All right. You also gave some testimony

24 regarding a prisoner release that was arranged at the

25 Busovaca bus station, I believe, on February 8th of

Page 11959

1 1993. You said that prisoners on both sides appear to

2 have been maltreated. You also described a visit to

3 the Koanik prison facility, where you only saw

4 criminals kept. Let me just ask you one question in

5 connection with prisons and imprisonment, sir.

6 You thought there was actually good

7 compliance by both sides with the orders that were

8 agreed to by Colonel Blaskic and General Hadzihasanovic

9 on keeping detention conditions at a fairly humane

10 level; isn't that correct?

11 A. Yes, that's correct.

12 Q. All right. Now, sir, you also stated in your

13 statement of three years ago that you viewed,

14 throughout your time as an ECMM monitor,

15 Colonel Blaskic as a capable and effective military

16 commander who had good control over HVO forces in his

17 operational zone, which was Central Bosnia; correct?

18 A. Yes, but I don't know exactly my statement of

19 three years ago now. But it could be.

20 Q. But that remains your view today?

21 A. Okay, yeah.

22 Q. You viewed him as a professional military

23 person?

24 A. Yes, okay.

25 Q. And as the most senior HVO military commander

Page 11960

1 in Central Bosnia; correct?

2 A. Yes, that's correct.

3 Q. In fact, it was clear to you that in

4 connection with military matters, military operations,

5 it was Colonel Blaskic who gave the orders to his

6 troops?

7 A. Yes.

8 Q. In fact, you gave the opinion, sir, that it

9 would not be possible for troops under

10 Colonel Blaskic's command to move around the area or to

11 engage in operations without his knowledge and specific

12 consent; correct?

13 A. No, that's not correct. I -- and you

14 mentioned it before -- I had the impression that not

15 all the commanders at lower levels knew what to do, so

16 I arranged that meeting with the lower commanders in

17 Busovaca. So it is not correct that Colonel Blaskic

18 knew everything about happenings in the checkpoints or

19 in the field, not at that moment; maybe later on.

20 Q. Thank you, Mr. Van der Pluijm. I don't mean

21 to challenge you in any way, but in your statement, and

22 we can put it on the ELMO if you wish, I just read you

23 the following sentence at the top of page 8. It says:

24 "In my opinion --"

25 THE INTERPRETER: Could you slow down,

Page 11961

1 Mr. Sayers, please?


3 Q. "-- troops not under Mr. Blaskic's control to

4 move around the area without his knowledge or consent"?

5 A. Yes, but I did not understand that because I

6 heard another voice in my -- I didn't hear it.

7 MR. SAYERS: Sorry. Why don't we just put

8 this on the ELMO.

9 JUDGE MAY: Yes, put it on. And Mr. Sayers,

10 you're asked to slow down again.

11 MR. SAYERS: Yes, sir.

12 Q. The sentence that I read, Mr. Van der Pluijm,

13 and please feel free to give any observations or

14 qualifications that you wish, appears right at the top

15 of the page. It says:

16 "In my opinion, it would not have been

17 possible for regular troops not under Blaskic's control

18 to move around the area without his knowledge or

19 consent."

20 Does that remain your view today or --

21 A. Yes. The word "regular" is -- that's what I

22 mean, yes.

23 Q. Yes, thank you. Thank you very much.

24 Just one other question in connection with

25 Colonel Blaskic and his relationship with General

Page 11962

1 Hadzihasanovic. These two, throughout their dealings

2 with you, treated each other very much as enemies; in

3 fact, they refused even to shake hands. Isn't that

4 correct?

5 A. Yes, I've never seen them shaking hands.

6 Q. They exhibited, in your view, a high level of

7 personal animosity towards one another and professional

8 animosity, if you like?

9 A. I think.

10 Q. Yes?

11 A. Yes.

12 Q. Thank you. Now, in connection with the

13 meeting that you described with Mr. Kordic, would you

14 agree that that meeting is not described in any ECMM

15 written report, as far as you're aware?

16 A. His representative note, but I don't know if

17 the report of that meeting especially was not reported

18 on higher levels. I don't know.

19 Q. The transcript is a little unclear,

20 Mr. Van der Pluijm. You referred to something that

21 says "his representative notes," but are you saying

22 that you took notes or that someone at the meeting with

23 Mr. Kordic took notes, or do you just not recall?

24 A. At the meeting at BritBat, notes were taken

25 by a British soldier, British captain.

Page 11963

1 Q. A British captain?

2 A. Yes.

3 Q. And you don't really have a recollection of

4 when this meeting occurred, other than sometime before

5 you went on vacation in February of 1993?

6 A. Yes.

7 Q. All right. You related a telephone call.

8 You actually do not know who Mr. Kordic reached on the

9 telephone call to give you the help that you'd asked

10 for; isn't that right?

11 A. At the incident with the checkpoint?

12 Q. Yes.

13 A. That's right.

14 Q. You do not know who he called; correct?

15 A. No.

16 Q. But he gave you the help for which you'd

17 asked.

18 A. Yes, he called in his office.

19 Q. Thank you very much, indeed, Mr. Van der

20 Pluijm.

21 MR. SAYERS: I have no further questions.

22 MR. KOVACIC: Your Honour, the Cerkez Defence

23 will not have any questions on cross. Thank you.

24 MR. NICE: Briefly.

25 Re-examined by Mr. Nice:

Page 11964

1 Q. Soldiers returning from the front lines, in

2 your experience, was there any particular significance

3 in their condition or in their attitude, these soldiers

4 returning from the front lines?

5 A. Yes. We often recognised a change in the

6 front line by shooting in the air by soldiers coming

7 back from the front line, and often they had -- they

8 were drunk.

9 Q. Did their attitude, in your judgement,

10 present problems for those commanding them and

11 controlling them?

12 A. I think so, yes. I'm sure.

13 Q. Second point. You'd been asked about a

14 passage of your witness statement.

15 MR. NICE: May he have the whole witness

16 statement before him, please. We looked at a passage

17 on page 8. If we could now put the bottom of page 7 on

18 the ELMO, please.

19 Q. What you were asked about was Blaskic's

20 control of the troops in the area, but what that

21 passage -- where that passage appeared was immediately

22 after a passage that dealt with the same general topic,

23 and at the foot of page 7, do we see this passage:

24 "Blaskic was the most senior HVO military

25 person in the area. The most senior political figure

Page 11965

1 was Dario Kordic and it appeared that Blaskic informed

2 Kordic of significant points before implementing them.

3 It seems to me that Blaskic was the extension of

4 Kordic. For military operations it was Blaskic who

5 gave the orders to his troops."

6 Then you say: "At the moment I left this

7 area in my opinion Blaskic was well informed about the

8 positions of his troops and the orders he gave reached

9 them. A great credit of what has been achieved by the

10 BJC was due to the successful efforts of the HVO and

11 ABiH representatives in the BJC to solve many problems

12 and convinced the low level commanders to follow

13 orders." And then the statement went on at the top of

14 page 8 to deal with what we've already heard about, the

15 possibility or otherwise of regular troops not under

16 Blaskic's control moving in the area.

17 But if we come back to the first passage at

18 the foot of page 7, does it remain your opinion that

19 Blaskic was an extension of Kordic?

20 A. No. I had the impression that Blaskic had to

21 investigate, to inform Kordic in Busovaca.

22 Q. When you spoke to us yesterday of the delay

23 in Blaskic being able to make final decisions because

24 of reporting to someone else, was it this that you had

25 in mind?

Page 11966

1 A. Yes. Not only this but also his military

2 commander.

3 Q. Third point -- thank you very much -- the

4 visit of the Dutch General that you cannot date, the

5 visit where the checkpoint was dealt with by Kordic by

6 the one telephone call, if it's material, do you think

7 the records will exist that will enable us to find the

8 date of that visit?

9 A. Yes. Your witness Colonel de Boer was at the

10 time commander of DutchBat, and he knows exactly when

11 many Generals came to his headquarters.

12 MR. NICE: That's all I ask. This witness is

13 retired and therefore it's a burden on him to ask him

14 to make inquiries of the Dutch military, but if my

15 friends want the date identified with clarity, I'll

16 take steps, if I can, through the Dutch authorities.

17 JUDGE MAY: Very well.

18 MR. NICE: That's all I ask.

19 JUDGE MAY: Mr. Van der Pluijm, that

20 concludes your evidence. Thank you for coming to the

21 International Tribunal to give it. You are released.

22 THE WITNESS: Thank you.

23 [The witness withdrew]

24 JUDGE MAY: Let me deal with something

25 immediately while I have it in mind. We have been

Page 11967

1 given the transcripts of Colonel Stewart's statement.

2 We also have a draft summary. Can you help us as to

3 this, to make sure that we understand it: There is

4 reference in the summary to page numbers in the

5 transcript.

6 MR. NICE: Yes.

7 JUDGE MAY: Now, as we understand it, there's

8 a correct transcript, as it were, a formal transcript,

9 and an informal one, and we have been given the formal

10 transcript, the formal Registry transcript. It's

11 clearly important that when the witness gives evidence,

12 we all work from the same pagination and the witness

13 has it too. Now, as I understand it, the plan is that

14 everyone will work from the official Registry

15 transcript.

16 MR. NICE: Yes.

17 JUDGE MAY: Which of the pages which are

18 referred to in the summary are references to the

19 official transcript?

20 MR. NICE: I hope that the ones in brackets

21 are, and I say that for this reason: I was in

22 discussions yesterday afternoon over the telephone with

23 your legal officer, and she told me where the numbers

24 began. I had the other version, as it were, the rough

25 version, before me, and I simply added on to the page

Page 11968

1 numbers I had identified by what appeared to be the

2 appropriate additional number of pages. But I haven't

3 yet had a chance to check the official version against

4 the numbers that I calculated, so those bracketed

5 numbers may need correction. I'll deal with it today.

6 JUDGE MAY: And if you would make sure a

7 message is sent through, or preferably a written

8 document, clarifying the point so that when we start

9 reading the transcript, we know what to look for.

10 MR. NICE: It should be the bracketed

11 numbers, and it should either be accurate or accurate

12 within one or two page numbers.

13 JUDGE MAY: Yes. Thank you.

14 I've been handed a letter today from

15 yourself, Mr. Nice, concerning the continuing

16 litigation about the binding orders.

17 MR. NICE: Yes.

18 JUDGE MAY: I don't know how much of that can

19 be dealt with today.

20 MR. NICE: I'm not sure which letter it is at

21 the moment. There's been quite a correspondence over

22 the adjournment since December. But I was going to

23 turn to that matter as one of a number of

24 administrative matters to deal with today, and I

25 thought I'd deal with all the small matters first,

Page 11969

1 identify what should probably be dealt with ex parte

2 and then deal with the question of representation

3 tomorrow and the binding order litigation last.

4 JUDGE MAY: Very well.

5 MR. NICE: I don't know if that would be

6 convenient. The witness I had hoped to attend today

7 was eventually located by the right telephone number

8 yesterday afternoon, and I'm, if not happy, at least

9 consoled to be able to tell you that he wouldn't have

10 been able to attend today in any event, and I can

11 explain to the Chamber that I started the process of

12 securing further witnesses before Christmas, or trying

13 to secure further witnesses for today, but it was

14 always going to be difficult simply to fill what, at

15 most, would be one day. I'm sorry about that.

16 Outstanding issues, apart from representation

17 tomorrow. We remain without an argument about the

18 admissibility -- an argument in skeleton form from the

19 Defence about the admissibility of the witness,

20 Professor Cigar, or Cigar. If it is still the

21 intention to challenge his status as an expert, I would

22 respectfully suggest that the sooner the skeleton is

23 available, the sooner we'll be able to argue the

24 point. Maybe the argument is no longer being pursued.

25 We were told it would be available, I think, this week

Page 11970

1 or before this week.

2 JUDGE MAY: Yes. Well, we'll turn to the

3 Defence to see what the position is on that.

4 Yes, Mr. Sayers.

5 MR. SAYERS: Mr. President, the position is

6 this: The status of Norman Cigar as an expert is being

7 challenged and we expect to be able to deliver to

8 Mr. Nice, as previously stated, our skeleton argument

9 perhaps by tomorrow; if not by tomorrow, then certainly

10 by Friday.

11 JUDGE MAY: When, at the moment, is it

12 proposed to call that witness? I mean, if you can't --

13 MR. NICE: I do have a note of that. Let me

14 just find out. He's currently not until the 21st of

15 February. It may be that this is an argument that

16 can't be disposed of, other than by a three-judge

17 court --

18 JUDGE MAY: I would anticipate that. There's

19 no immediate hurry for it.

20 MR. NICE: We can reserve the argument until,

21 at the earliest, the week after next.

22 JUDGE MAY: Yes.

23 MR. NICE: The second small point for

24 observation or assistance from the Chamber. There was

25 either the suggestion or the order or the requirement

Page 11971

1 that witnesses requiring protection should sign up to

2 that requirement, as it were, ahead of coming here.

3 You will notice from one or two of the summaries

4 prepared in respect of local witnesses, that is, local,

5 either here or in England, that I've been able to have

6 that done or I've done that myself and that witnesses

7 have signed, for example, a summary which sets out

8 where they require or seek protective measures.

9 It will not, I think, be possible to do that

10 in respect of any other, and there may not be many, any

11 other witnesses coming from the former Yugoslavia.

12 Logistically it won't be possible to go down and get

13 them to sign up requests and then bring those signed

14 requests here. In respect of those witnesses, although

15 we'll know perhaps in advance, and we hope we'll know

16 in advance, that they seek protection, I'm afraid it

17 probably won't be possible for any such remaining

18 witnesses to have signed requests available in

19 advance. I hope that the general flexibility will be

20 acceptable.

21 JUDGE MAY: Provided that is made clear that

22 that hasn't happened and an explanation is given, we

23 will obviously consider it at the time.

24 MR. NICE: Thank you very much. Included in

25 the documentary material served on the Defence are

Page 11972

1 several binders of material dealing specifically with

2 the issue of international armed conflict. That

3 material will, of course, be in addition to the very

4 considerable body of evidence from the witnesses that

5 already exists going to show the international nature

6 of the armed conflict. It may be that the Defence will

7 no longer be challenging that as an issue, although I

8 note the cross-examination that's gone on, and I

9 certainly invite them to reconsider their position.

10 The written material or the documentary

11 material is voluminous. To some degree, it requires

12 evidence from witnesses; (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted). We are loathe

18 to spend the Court's time and to burden the Court with

19 an excess of evidence on a topic that may ultimately

20 prove to be proved overwhelmingly.

21 Starting at the back, what we can't do -- we

22 can't very comfortably invite the Court to say it's had

23 enough evidence on a particular topic, although at

24 earlier stages the Court has indicated that it may say

25 in respect of particular topics, "Well, we're going to

Page 11973

1 stop you calling more evidence on that topic because

2 we've had enough already." What we would suggest is

3 that the Defence give further consideration to whether

4 this is really an issue or whether this is something

5 that can now be taken shortly, and if not, then we

6 would simply invite the Court at some stage to consider

7 whether this is one of those topics where it will be

8 able to say to us, "You've provided as much evidence as

9 it is appropriate for you to lead."

10 The second of those two names, apparently,

11 ought to be redacted, so I'm sorry about that.

12 Although he's been served, he still ranks as

13 confidential.

14 JUDGE MAY: I'm getting a reaction from the

15 Defence on this particular topic.

16 MR. SAYERS: I think there are three things

17 that require us to address, Mr. President.

18 The first is the position with respect to the

19 documents served on us supporting the Prosecution's

20 argument that there has been an international armed

21 conflict in the areas involved in this case. We will

22 certainly try to review those documents. The last set

23 was received late yesterday afternoon. There are three

24 sets of documents that have been served upon us so

25 far: one dealing with the position insofar as 1991 is

Page 11974

1 concerned; the second volume deals with 1992 and 1993;

2 and then the third volume that we received yesterday

3 deals with 1994.

4 I haven't done a head count of the documents,

5 but it seems to me that there are approximately a

6 thousand documents, individual documents, there. As

7 the Court can appreciate, that takes some time to comb

8 through. We'll do it as fast as we can, and we will

9 let the Prosecution -- and if the Court wishes, the

10 Court as well -- know what our position is with respect

11 to the admissibility of those documents. I can't give

12 a date by which that will be done, other than to say

13 that in good faith, we'll do it as soon as possible.

14 The second issue, it seems to me, is whether

15 the Defence concedes that there was an international

16 armed conflict in Central Bosnia from November of 1991

17 to March of 1994, which is the time period covered by

18 the amended indictment. I cannot speak for the Cerkez

19 Defence, but from the perspective of the Kordic

20 Defence, let me give you our preliminary views on that,

21 if I may.

22 As I understand, the Tadic Appeal Chamber

23 decision that was rendered, I think, on July the 15th

24 of last year, the inquiry is specific as to area.

25 There may be an individualised determination that there

Page 11975

1 was an international armed conflict in one area and yet

2 in another area there may be a determination that there

3 was not. The recent Aleksovski decision is a good

4 example of that, concluding that on the evidence

5 presented, there was no international armed conflict in

6 Central Bosnia at the time covered by the Aleksovski

7 indictment.

8 Our position is that about 99 per cent of the

9 evidence, as far as I can see from the 1.000 exhibits

10 or so that have been assembled by the Prosecution, deal

11 with the allegations of involvement by the Croatian

12 army in Herzegovina, Southern Herzegovina, in the

13 Prozor-Jablanica regions. Our position is that our

14 client had nothing to do with anything that occurred in

15 Herzegovina. He did not visit Herzegovina, as far as

16 I'm aware, at any time in 1993 and could not because of

17 the wartime conditions. I do not believe that any

18 serious argument can be made that Mr. Kordic had any

19 degree of political influence in Herzegovina, and it

20 certainly cannot be contended in good faith that he had

21 any military influence in Herzegovina at all. It

22 cannot be contended, I believe, that he could be

23 reasonably argued to have any responsible for detention

24 conditions in Herzegovina in places such as the

25 Heliodrom or Gabela, and I do not believe that it can

Page 11976

1 be reasonably contended that he had any role whatsoever

2 in the conduct of military operations there, which was

3 in a completely separate operative zone, the Northwest

4 Herzegovina Operative Zone.

5 JUDGE MAY: Mr. Sayers, I'm going to

6 interrupt you because there's no need at this stage to

7 argue the point. You are not conceding that there was

8 an international armed conflict in Central Bosnia at

9 the relevant time; is that the position?

10 MR. SAYERS: I think that's the position, and

11 you've said it far more economically than I have. Let

12 me move on to the third argument, the transcript

13 witnesses.

14 With the Court's permission, what I would

15 like is simply the weekend to review the transcripts of

16 the public witness and the confidential witness, and I

17 will provide the Trial Chamber, on Monday, with our

18 position with respect to that.

19 JUDGE MAY: That will be a matter which will

20 have to be dealt with by the full Trial Chamber, so you

21 can take an extra week, if that's convenient.

22 MR. SAYERS: I appreciate that. Thank you

23 very much indeed, Your Honour.

24 JUDGE MAY: Yes, Mr. Kovacic.

25 MR. KOVACIC: Your Honour, in order to be

Page 11977

1 economical with the time, I really don't want to be

2 impolite, but I have to point out that during the

3 opening speech, the Prosecution clearly said that this

4 is not a documentary case, that this Court would be

5 hearing a lot of witness testimony, which it indeed

6 does. But this statement that it is not a documentary

7 case now appears to be very different. We are

8 receiving a bunch of documents. I'm not mentioning the

9 disclosures we already received in the eve of the

10 beginning of the trial, during the first months of the

11 trial. But in addition to all that, only in the last

12 about three weeks, it was shortly before Christmas

13 vacation and despite a tacit agreement that there won't

14 be too much papers exchanged during the Christmas

15 holiday, we did receive boxes of documents, and

16 altogether I guess that in the last three weeks --

17 those documents related to international war conflict

18 and some other documents -- there was as much as, I

19 counted, 1.400 pages of documents.

20 We are a small Defence. We are still working

21 on just entering the papers in database, let alone

22 analysing those documents, so obviously it is a

23 documentary case. And we will deal with those

24 documents, and we don't necessarily need for every

25 document a witness who will then explain what it's all

Page 11978

1 about in the documents, because then those are not the

2 documents. If the documents cannot speak by itself,

3 then we don't need that document. But anyhow, it will

4 be a burden to the Court and to the Defence as well,

5 and we will cope somehow with that.

6 As per international war conflict, and a lot

7 of documents are coming on that subject, we also

8 believe that there was no international war conflict

9 where we are talking, when we are talking about

10 Muslim-Croat conflict in middle Bosnia. And probably

11 there will be a lot of discussion which evidence from

12 the Blaskic case we can use in our case in some

13 economical way, because there was a lot of evidence

14 tendered on that subject.

15 That is about everything I wanted to say,

16 Your Honour.

17 JUDGE MAY: Thank you. Just one moment,

18 Mr. Nice, please.

19 [Trial Chamber confers]

20 JUDGE BENNOUNA: [Interpretation] Mr. Nice, I

21 believe that our Chamber is not going to open an

22 in-depth debate here on the question of the

23 characterisation of the conflict. That question

24 regarding the character of the conflict, was it an

25 international or internal one, is a question which is

Page 11979

1 in dispute between the parties. Mr. Sayers has just

2 told us that.

3 We also know that there is the Tadic

4 determination and that the characterisation of the

5 conflict goes parallel with the presentation of the

6 case. As you present your case as the Prosecutor, you

7 at the same time provide evidence, and in the course of

8 the presentation of evidence you introduce the

9 character of the conflict, that is, the external

10 interference in the conflict in this case in the Lasva

11 Valley. Therefore, in our opinion, we should not open

12 any kind of discussion on the actual character of the

13 conflict in itself, but this should be done in the

14 course of the presentation of the case.

15 You may also make a synthesis, a summary.

16 When you summarise your case, you will also give us a

17 characterisation of the conflict based on the evidence

18 that you have presented in the course of the

19 presentation of evidence, and the nature of the

20 conflict is a part of the Prosecution file as it has

21 been presented, and it will also be a part of the

22 Defence case as it is presented through the evidence

23 and in the closing statement, and it will be up to the

24 Chamber to make its determination. I think that is our

25 view of the nature of the conflict and bearing in mind,

Page 11980

1 of course, the jurisprudence of our Tribunal. There

2 has to be a certain degree of coherence in the

3 interests of justice, because justice requires

4 coherence and consistency and it must be clear to all

5 that justice has been served in a consistent manner.

6 JUDGE MAY: Mr. Nice, if I could add to that,

7 it may be sensible that the Prosecution, understanding

8 what the current position is, that is, that this is a

9 matter which is in dispute and is not going to be

10 conceded, to review their evidence upon this topic, to

11 put the matter, as His Honour says, coherently and

12 concisely before the Trial Chamber, for instance, to

13 review the documentation which you have presented to

14 the Defence, and really get out of it the really

15 relevant parts.

16 MR. NICE: I think we're going to do that in

17 any event, and our position will be made not easier but

18 clearer when we know whether and, if so, which

19 transcripts are going to be taken as evidence in the

20 case. Then we can, I think, provide a guide through

21 the voluminous material of international armed conflict

22 documentation.

23 JUDGE MAY: I think there is a point, as

24 Mr. Kovacic said, that one does not want to overburden

25 a court with a lot of documents in this or any other

Page 11981

1 case.

2 MR. NICE: Absolutely. The reason why I

3 first started this small part of today's debate is I

4 was concerned that you may indeed be overburdened, and

5 I wanted to find ways of reducing it. But --

6 JUDGE BENNOUNA: [Interpretation] Mr. Nice,

7 regarding documents, the documentation, as you know as

8 well as me, do not speak for themselves. A document

9 does not speak for itself always, and it is up to you

10 to put it in context. We cannot provide rough

11 documents, as such, because that could indeed present

12 certain extreme constraints on the Defence and the

13 Court. You present a document within the framework of

14 your own strategy, defining clearly the relevance that

15 you attach to it. You cannot simply have a pile of

16 documents and distribute them. I don't think that this

17 is useful for anyone. And it is up to you, when

18 presenting a document, to give it meaning. I think, of

19 course, that the same applies to the Defence, and it is

20 up to us here to rule when there is dispute between the

21 two parties on the meaning to be given to such

22 documents.

23 MR. NICE: One moment, please.

24 [The Prosecution confers]

25 MR. NICE: I think Your Honour has been

Page 11982

1 saying no more than to reflect how the case has already

2 been conducted.

3 As to documents speaking for themselves or

4 otherwise, many documents do speak for themselves, and

5 that's one of the reasons why I'm anxious to have the

6 authenticity of documents admitted rather than

7 slavishly approved in advance and to save the

8 expenditure of time on that as a free-standing issue.

9 Once we know, by the exchange of documents and by the

10 response of the Defence, which documents are accepted

11 for what they are, it will again be easier for us to

12 provide you with a synthesis of the material.

13 Mr. Scott, who has been involved in the very

14 labour-intensive business of dealing with documentation

15 recently and throughout the case, reminds me that in

16 Blaskic three binders of international armed conflict

17 material were presented, I think with guidance from

18 counsel as to their significance at an oral

19 presentation. And the process of distributing

20 international armed conflict material for this trial,

21 Mr. Scott and Mr. Lopez-Terres have been pruning the

22 bundles substantially in order to eliminate what is, in

23 our judgement, surplus or not helpful material. So one

24 way or another, we'll, I hope, provide both the

25 material, ensure that it's not challenged as to its

Page 11983

1 authenticity so that where necessary it can speak for

2 itself, and then provide you with a guide.

3 A couple of other small points.

4 The tape, just to keep people up to date on

5 that, we are finding out how long it's going to be

6 before a transcript of the whole tape is provided. The

7 witness statements producing it, which will, I think,

8 show that Mr. Stein's concerns on Monday can be met,

9 are also going through the process, and we are

10 accelerating, we hope, the processing of all the

11 material so that it can be available to the Defence as

12 soon as possible.

13 There are two issues that I identify as

14 issues likely to turn up soon, and it may be worth our

15 minds thinking about them.

16 First, the continuing difficulties about

17 producing affidavits or formal statements. The Rule

18 has been amended, we know. Even as amended, it's

19 pretty nearly going to be impossible of performance in

20 Bosnia, not for want of trying, we're trying everything

21 we can, but to get formal statements that don't involve

22 the active participation of another judge calling on

23 parties to come and cross-examine witnesses and so on,

24 it seems to me an insuperable problem. The same does

25 not apply, of course, to witnesses in England, Canada,

Page 11984

1 and elsewhere where they have an affidavit system in

2 place.

3 In addition, the new requirements of 94 ter,

4 if they apply to this case, can probably be

5 requirements we can never meet because the various

6 requirements either just aren't practical for a case of

7 this size or, in any event, weren't in place at the

8 time all this started.

9 I wrote, amongst other things over the

10 adjournment, to the Defence, inviting them to say,

11 bearing in mind what His Honour Judge Bennouna

12 explained as the purpose behind the new Rule, what form

13 of written statement they would, in principle, accept,

14 subject to arguing the admissibility of each and every

15 one, inviting them to indicate what form they would

16 accept, met His Honour Judge Bennouna's helpful

17 analysis of what was the intention of the Plenary

18 session. So far, we haven't had any positive response

19 to that, simply in relation to all the documents that

20 we are producing, a warning that we can't or don't meet

21 the requirements of 94 ter.

22 Now, in relation to village binders and

23 following on the argument of the binder on Tulica, it

24 may be that the Chamber left open -- in fact, the

25 Chamber did leave open the possibility that individual

Page 11985

1 statements, whether witness statements or statements in

2 writing or whatever else, can be admitted because they

3 are simply a species of hearsay, and in presenting the

4 village binders and matters of that sort, we are not

5 necessarily restricting ourselves to having documents

6 admitted under 94 ter, with all its conditions and

7 difficulties so far as Bosnia is concerned, and we may

8 be seeking to have material admitted as hearsay in

9 accordance with the general potential for hearsay being

10 admitted to this Court.

11 That's a problem that's coming up, and so far

12 it appears there may be, on the Defence arguments,

13 simply no statements from the former Yugoslavia that

14 will ever qualify for 94 ter, and if that's the case,

15 if they're right in that argument and if they persist

16 in it, then let me make it plain: We will be seeking

17 the admission of statements in due course as hearsay,

18 as we explained in the Tulica application, and have

19 advanced as a proposition for us to take generally.

20 A second matter that I simply identify now

21 because I want to have -- as we are reaching the end of

22 our case, I want to make sure that we don't leave

23 things outstanding that will extend the case beyond the

24 adduction of evidence which is the time that I would

25 like to end the case really. Another problem relates

Page 11986

1 to transcripts in other cases, and in particular to the

2 transcript of evidence of the defendant Blaskic in his

3 case. There are two competing positions here, and if I

4 identify them, again it may help people to think about

5 them.

6 JUDGE MAY: You're seeking to adduce the --

7 MR. NICE: Well, can I explain the problem?


9 MR. NICE: If you take, for example, the

10 problem with the tape that we seek to adduce in

11 evidence which speaks of communications between Blaskic

12 and Kordic by telephone, in the Blaskic case, Blaskic

13 himself gave a lot of evidence and no doubt was

14 cross-examined as much as anyone wanted to on that

15 particular topic and spoke of a lot of telephone

16 conversations.

17 Now, it may be that in due course we would

18 seek this Chamber to know about and to take account of

19 what Blaskic said in relation to those phone calls,

20 bearing in mind in particular that he was

21 cross-examined as much as anybody wanted to

22 cross-examine him on that topic. It's, as it were, a

23 complete and free-standing topic. We would not, I say

24 "not" of course, we would not, of course, want to

25 adduce all of Blaskic's evidence on the grounds that it

Page 11987

1 is a truthful account. I would be surprised if we did,

2 given that properly he would have been probably a

3 co-defendant in a joint trial. But nevertheless we

4 might want the Chamber to have in mind, on the grounds

5 that it would be unrealistic not to, free-standing

6 passages of his evidence where it will be helpful.

7 The Defence, I think, would say that there

8 can be no selection, and if a transcript goes in at

9 all, it goes in altogether. Now, it may well be that

10 this matter will fall for argument and discussion in

11 due course because neither side would want to put -- to

12 call the witness, neither side would necessarily want

13 to have the evidence accredited to their side as

14 evidence put in for its truth, but each side would want

15 the Chamber to take account of some of what Blaskic

16 said in evidence.

17 JUDGE MAY: Well, Mr. Nice, it seems a novel

18 proposition but then there may be many novel

19 propositions here which we have to deal with.

20 MR. NICE: Yes.

21 JUDGE MAY: We'll hear the argument.

22 MR. NICE: I thought if I mentioned it now,

23 it's worth thinking about. I don't believe it's

24 covered by the jurisprudence yet. There is an analogy

25 that's worth having in mind, although it's

Page 11988

1 distinguishable from the facts of this particular case,

2 and the analogy is, of course, what would happen in a

3 joint trial? In a joint trial, a co-defendant giving

4 evidence would have his evidence there for

5 consideration in all cases, subject to various warnings

6 in different jurisdictions and so on. So to some

7 degree, it makes sense to think in terms of Blaskic's

8 evidence being available in this case, the two cases

9 plainly being cases that could and maybe even should

10 have been heard together, at least in other

11 circumstances. The difference is, and of course it is

12 a difference, the difference is that there would have

13 been in this case no cross-examination of Blaskic on

14 behalf of Kordic, so there's the difference, and,

15 indeed, no cross-examination of Blaskic by the

16 Prosecution prosecuting Kordic or Cerkez. So there are

17 similarities and an obvious distinction.

18 Having dealt with that, can I turn to the

19 matters that I suggest are properly now dealt with ex

20 parte, and if there's no challenge to that, then I can

21 deal with the representation tomorrow as the last

22 topic. I wish to deal with the enforcement of witness

23 attendance in respect of witnesses who have not

24 responded to subpoenas --

25 [Trial Chamber confers]

Page 11989

1 JUDGE BENNOUNA: [Interpretation] Mr. Sayers,

2 could you assist the Chamber, of course my question is

3 also addressed to the Defence of Mr. Cerkez, regarding

4 this question of affidavits. A question has been

5 raised by the Office of the Prosecutor regarding the

6 implementation of the new Rule. What could be accepted

7 from Bosnia in the form of affidavits? What could be

8 acceptable to the Defence? Could we have your

9 assistance on this point.

10 MR. SAYERS: Yes, Your Honour. But let me

11 just say, perhaps the answer best comes from people

12 more familiar with the procedure for taking affidavits

13 or giving formal statements in Bosnia-Herzegovina. But

14 as I understand it, there is no procedure for an ex

15 parte affidavit that is approved of under the law of

16 Bosnia-Herzegovina. For a formal statement to be taken

17 of a witness, there has to be a presiding judge and

18 both parties have to be present and ask whatever

19 questions they wish of the witness. That is a

20 procedure that appears to be unpalatable to the

21 Prosecution. They do not want any presence of Defence

22 counsel at that procedure which, as I understand it, is

23 required under the law of Bosnia-Herzegovina.

24 Our position is relatively simply. Rule 94

25 ter, as I see it, is relatively clear, a clearly

Page 11990

1 articulated Rule. For an affidavit or a witness

2 statement to come into evidence, ignoring for a minute

3 the other procedural requirements of Rule 94 ter, the

4 affidavit or witness statement has to comply with the

5 law of the state where the statement is taken, and

6 that's our position. I mean, I don't see how we can

7 articulate it any clearer than that, Your Honour. If

8 the statement complies or the affidavit complies with

9 the law of the state that it was taken, then it would

10 appear to comply with Rule 94 ter. If it doesn't, then

11 it doesn't comply with Rule 94 ter.

12 I hope that's sufficiently clear, Your

13 Honour. Maybe I'll yield the floor to Mr. Kovacic who

14 can, no doubt, give the Court a clearer explanation of

15 the law of Bosnia-Herzegovina. Thank you.

16 JUDGE BENNOUNA: [Interpretation] Mr. Kovacic

17 or Mr. Mikulicic.

18 MR. MIKULICIC: [Interpretation] Your Honours,

19 speaking as an attorney practising in the former

20 Yugoslavia and familiar with the regulations of the

21 area, I can say the following: The rules in the

22 territory of Bosnia-Herzegovina do not recognise an

23 affidavit statement in the form and in the way it is

24 recognised in common law countries and even certain

25 countries that apply continental law. So there's

Page 11991

1 simply no analogy.

2 The only kind of statement which would, in

3 essence, and I underline "in essence," correspond to

4 the concept of an affidavit statement is a statement

5 made before a competent court in the territory of

6 Bosnia-Herzegovina, observing the rules of procedural

7 law that apply to the taking of such a statement. That

8 means for a witness statement which would, in essence,

9 correspond to the requirements of an affidavit, it

10 would have to be given before a competent court and

11 both parties would have to be present when such a

12 statement is being made, which means both the Defence

13 and the Prosecution.

14 In our understanding, that is the only form

15 of statement that would correspond in essence to such

16 affidavit statements. Speaking at least on behalf of

17 the Cerkez Defence, the Defence would accept such a

18 statement on condition that the Defence be enabled to

19 be present when such a statement is being given. Any

20 other form of written statement cannot be acceptable to

21 the Defence, the reason being, first, that the domestic

22 law does not provide for such a statement and,

23 secondly, because only a statement given in court

24 corresponds to the criteria of an affidavit; that is,

25 the possibility of taking an oath and the possibility

Page 11992

1 of criminal prosecution in the case of any false

2 testimony being given. Only such a statement would

3 correspond to our rules.

4 That would be the position of the Defence of

5 Mario Cerkez. If Your Honours have any further

6 questions, I shall be glad to answer them.

7 JUDGE BENNOUNA: [Interpretation] No,

8 Mr. Mikulicic, not a question, but perhaps a point of

9 clarification. You said that the statement had to be

10 made before a competent court and in the presence of

11 both parties. What is the role of the parties in such

12 a case? A person is going to appear before a court,

13 he's going to make a statement under oath, he's going

14 to take an oath, make the statement, and the two

15 parties are present. What would be the role of those

16 two parties? Does that mean that the person would be

17 questioned in the presence of the judge and

18 cross-examined later, or is he limited to making a

19 statement on a particular subject? Because if we have

20 an examination-in-chief and a cross-examination, then

21 it is the same as a deposition statement which is

22 envisaged by our Rules. That is my question.

23 MR. MIKULICIC: [Interpretation] I understand,

24 Your Honour, and I shall do my best to respond.

25 The domestic law does not envisage the

Page 11993

1 examination of a witness without the presence of the

2 interested parties. In this case, it would be the

3 Prosecution and the Defence. However, it is up to the

4 Prosecution and the Defence whether they will examine

5 or not, but it is the obligation of the Court to enable

6 their presence precisely for the reason as to enable an

7 interested party to put questions if they wish to do so

8 in the course of the making of the statement. Of

9 course, this is a right that applies to both parties,

10 the Defence and the Prosecution.

11 It is, in effect, a kind of cross-examination

12 but not in the same scope as a cross-examination during

13 a hearing because, according to domestic law, such a

14 taking of statements is most frequently done before an

15 investigating judge of the local court who acts

16 according to the rules of provision of international

17 criminal assistance. So it would be the same procedure

18 as if, for instance, a regular criminal court in

19 Germany would request such and such a witness to be

20 heard and examined in Sarajevo. Such a request is sent

21 through the channel of international legal assistance,

22 and the investigating judge decides about it, who calls

23 the witness, as well as the attorneys in the case to be

24 present.

25 JUDGE MAY: Is it possible to admit any other

Page 11994

1 witness statement in a domestic court which hasn't been

2 taken in this way?

3 MR. MIKULICIC: [Interpretation] I am not

4 aware of any other form of witness statement apart from

5 the one I have just described. There is no other

6 form. There is a possibility for a certain witness to

7 have made a statement on a subject that may be

8 interesting for us in this case in another criminal

9 case, for instance, before a court in

10 Bosnia-Herzegovina. That would be a statement given

11 under oath in a court of law, and so on, but that

12 statement may be interesting for another case and not

13 for this one. That statement could perhaps provide

14 some guidelines, but it would not limit the right to

15 cross-examination in a specific case, in our particular

16 case.

17 However, if we were to try to obtain such a

18 statement that we need for this case, then this is the

19 only possible procedure, as far as I'm aware. There is

20 no other way of obtaining such a statement.

21 [Trial Chamber confers]

22 JUDGE MAY: Mr. Nice, our recollection is,

23 our distinct recollection is that in other cases before

24 this Tribunal documents have been admitted, not on the

25 basis that they were sworn to as the accuracy of the

Page 11995

1 statement but sworn to as being the person who actually

2 signed the document. Now, how far that meets the

3 criteria I don't propose to go at the moment, but they

4 have been admitted in other cases, the legal officer

5 reminds us, and it is my recollection too that that has

6 happened.

7 MR. NICE: This is Bosnian witnesses?

8 JUDGE MAY: Yes. It may be that you could --

9 rather than debating this now, the better course may be

10 for you to research with some of your colleagues as to

11 what has happened elsewhere and you can then pursue the

12 matter.

13 MR. NICE: We'll certainly do that. I have

14 to say that the research has been going on within the

15 office for a long time because we've been trying to get

16 round this thorny problem for months, or indeed over a

17 year, I think, and none of us is immediately aware, and

18 we've contacted, of course, all the case, at the moment

19 of that type of statement. We'll, of course, go into

20 it again, and any chapter and verse that can be

21 provided to us will be of assistance in tracking that

22 down. But our independent inquiries of the judicial

23 process in Bosnia doesn't lead to radically different

24 conclusions from those advanced on behalf of the

25 Defence as to the state of the law there.

Page 11996

1 I remember at one stage I asked of someone,

2 firstly myself and then someone else, what would

3 happen, for example, in a commercial case where you

4 might want to produce commercial documents. I can't

5 believe that in those circumstances there's no process

6 whereby a notary is not able to attest in some way to

7 the accuracy of a document. I can't believe that in a

8 shipping case in Dalmacija that they have to call each

9 and every witness to prove each and everything live,

10 but maybe I'm wrong. Mr. Mikulicic may tell me that I

11 am wrong. But we've looked at all possibilities so far

12 and haven't been able to find any.

13 Before I part from it on the promise to

14 conduct the further inquiry, the Chamber will have

15 observed the practical difficulties that are facing us

16 in relation to Rule 94 because of the involvement of a

17 whole new judicial process which is not, I think, what

18 the Plenary Session ever intended. But it's not just

19 practically difficult, probably difficult to the point

20 of being practically impossible, but it's impossible

21 for other reasons, including the fact that the

22 judiciary in the former Bosnia divides on Croat/Muslim

23 lines like everything else, and a Muslim witness of the

24 type who might be seeking protection here simply would

25 not have any confidence in appearing before a

Page 11997

1 non-Muslim judge. It's a pretty unattractive

2 proposition that we've got not only to go to some other

3 judicial process for its intervention but then be

4 selective about the judiciary to whom we go.

5 JUDGE MAY: I think rather than go through

6 this, it's getting on towards the time for a break

7 anyway --

8 MR. NICE: Yes.

9 JUDGE MAY: -- I suggest you look at those

10 other cases --

11 MR. NICE: Certainly we will and I'll report

12 back.

13 JUDGE MAY: -- yes, and see what was

14 admitted. I suspect it wouldn't have been very

15 controversial evidence but it may come within the

16 criteria of corroborative evidence which is what the

17 Rule speaks of.

18 MR. NICE: Yes.

19 JUDGE MAY: Perhaps I could say this to the

20 Defence: I understand the position which you take, but

21 on the other hand some degree of flexibility may be

22 helpful when it comes to your own cases and you may

23 want to produce statements too when it comes to it.

24 What else is outstanding?

25 MR. NICE: First of all, I was going to

Page 11998

1 identify as material for an ex parte application the

2 question of the enforcement of witness attendance. It

3 may be that the fact that that should be dealt with ex

4 parte and in private is not controversial, in which

5 case we can put that back.

6 Then there's the whole question of

7 representation at tomorrow's hearings which we have

8 raised, and it may be that that was one of the things

9 dealt with in the letter of mine that you referred to

10 right at the beginning of the session. That will take

11 a few minutes, certainly, to expand upon --

12 JUDGE MAY: On which --

13 MR. NICE: -- in the presence of the

14 Defence.

15 JUDGE MAY: On which topic, while I have it

16 in mind? We were promised a summary for tomorrow's

17 hearing.

18 MR. NICE: Yes, it's here. I say it's here.

19 It is here. It's in tabulated form. Mr. Scott has

20 worked very hard, I know, to get it in a form that's

21 readily available, and it can probably be distributed

22 for you now if you're going to take a break. It's not

23 a document that goes to the Defence at this stage, of

24 course, but it's a document you can have now.

25 JUDGE MAY: So that will be the first

Page 11999

1 issue to be dealt with, the question of representation

2 tomorrow?

3 MR. NICE: Yes.

4 JUDGE MAY: That presumably has to be heard

5 in private session.

6 MR. NICE: Private session, yes, but with the

7 Defence present.

8 JUDGE MAY: Of course. Are there any other

9 issues before the final point about the witnesses?

10 MR. NICE: No. No, that's it.

11 JUDGE MAY: Are there any matters which the

12 Defence want to raise?

13 MR. SAYERS: None from the Kordic Defence,

14 Your Honour, at this point. As I understand it,

15 there's going to be a Status Conference next Thursday

16 when we are going to raise preliminary matters, I

17 thought of the type that are being raised here, but

18 we'll raise them at that time.

19 JUDGE MAY: Yes.

20 MR. KOVACIC: Your Honour, I just wanted to

21 add, not to make things complicated. As per the

22 authentication of the documents in front of a notary

23 public or something, there is no problem. We are not

24 talking about that.

25 By the way, as you probably very well

Page 12000

1 noticed, so far there was no incident in which we would

2 challenge the authenticity of the document. We don't

3 insist on the form. If there is a document, we don't

4 see any need that these documents should be

5 authenticated via some witness or somebody or a notary

6 public. That's up to them. If they want to have

7 documents with nice red stamps and ribbons and

8 everything, I don't care. But so far there is no

9 incident in which we've said, "That is a false

10 document." Of course, we presume that because it's the

11 attorneys, nobody would do that because that's a

12 criminal act, and of course if anybody would come with

13 a document which is suspicious, we will have the

14 opportunity to ask about it a little bit and discover

15 if it is not a correct document.

16 So if the Prosecution needs those affidavits

17 only to authenticate the documents, then I think we are

18 really wasting our time.

19 JUDGE BENNOUNA: [Interpretation] Indeed.

20 Mr. Kovacic, this distinction that you remind us of is

21 very important. They are documents which need to be

22 authenticated and there is a problem of knowing how to

23 have testimony by affidavit which has to be done before

24 a judge, as you have told us, according to the

25 legislation at present in force in Bosnia. So there is

Page 12001

1 a problem of authentication of documents which is

2 something completely different from a person who is

3 about to make a statement, who is about to give a

4 testimony, and which has to be done before a court of

5 law.

6 That is why I'm turning again to Mr. Nice

7 because we keep after him, asking him for more

8 information, and I therefore wish to say that the

9 Prosecutor's office should also consider the

10 possibilities of judicial co-operation. We were

11 talking about bilateral co-operation between such and

12 such a country, whether it be Germany or Bosnia, but

13 perhaps we should talk about the judicial co-operation

14 between the Tribunal and the courts which form part of

15 the judicial system in other parts concerned, notably

16 in Bosnia.

17 So perhaps through the Judges we could do

18 something, and the Judges perhaps could do (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted). So I believe we should also

24 investigate the possibility of co-operation between

25 courts of law, and perhaps that could advance our

Page 12002

1 cause. Thank you.

2 MR. SAYERS: If I may, Your Honour. It may

3 be that the name that you just mentioned should be

4 redacted from the transcript since that was a

5 confidential witness.

6 JUDGE MAY: Very well. We'll adjourn now.

7 Twenty minutes. Half past.

8 --- Recess taken at 11.10 a.m.

9 --- On resuming at 11.37 a.m.

10 [Private session]

11 (redacted)

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14 (redacted)

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17 (redacted)

18 (redacted)

19 (redacted)

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10 --- Whereupon the hearing adjourned at

11 12.25 p.m., to be followed by an

12 Ex Parte














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