Tribunal Criminal Tribunal for the Former Yugoslavia

Page 13267

1 Friday, 28 January, 2000

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 9.05 a.m.

5 THE REGISTRAR: Good morning, Your Honours.

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

7 Kordic and Mario Cerkez.

8 MR. NICE: Your Honour, before we turn to the

9 expert witness, there's one other administrative matter

10 that I should deal with. It relates to the subpoena

11 witness who was due to attend this week. You said

12 you'd like the material in writing. I've checked with

13 your Registrar, and the position is that the original

14 report was filed and the material letter for this

15 witness, which is a letter dated the 31st of December

16 of 1999, is with your Registrar and will be copied and

17 made available to you today, and I have no material

18 beyond what is contained in that letter and in the

19 earlier reports touching on that witness for you to act

20 upon, and I'd ask you to act upon that.

21 JUDGE MAY: Yes. Well, the Registry has

22 heard that.

23 MR. NICE: As to the expert witness, as I

24 indicated yesterday, I'll let Ms. Somers deal with all

25 matters of detail that may arise, although the thing is

Page 13268

1 fully argued. I'd simply say these things: I think by

2 way of general introduction, he was notified as a

3 witness in the early witness list. His summary was

4 served, and when his report was served, there was

5 simply a notification that they desired to

6 cross-examine him. It may well be, although we've

7 responded to their skeleton argument in detail out of

8 courtesy, it's really far too early. This is a proper

9 case for the witness, who is plainly an expert and a

10 much respected man, who wrote his book on ethnic

11 cleansing in 1995, I think. He might well be a witness

12 in other cases.

13 It's far too early really to think about his

14 expertise. It's probably a matter for him to come here

15 and to be cross-examined, which is what would normally

16 happen.

17 The court will, I think, have already read

18 his report and will know that his evidence in chief

19 certainly wouldn't take very long, because it would be

20 an question of adopting his reports, with some

21 amplification.

22 But that's all I would say by way of general

23 introduction. Ms. Somers is available to deal with any

24 queries should you want them to be dealt with.

25 JUDGE MAY: No. It's not a matter of detail;

Page 13269

1 it's a matter of principle, on which I will be grateful

2 for your assistance, speaking for myself, and that is

3 to the extent to which those of us from common law

4 backgrounds call or know as the ultimate issue rule.

5 To what extent is this witness, in fact, drawing the

6 inferences which are for us to draw?

7 I have in mind a conclusion, which is

8 referred to merely as an example. I'm looking,

9 actually, at the Defence version, which is the one in

10 colour, since that helps one lay their argument.

11 If you have it at page 19. If you have

12 that.

13 MR. NICE: Yes, I have that.

14 JUDGE MAY: "Based on the evidence adduced

15 above, one can conclude that Kordic was the supreme HVO

16 and HDZ official in Central Bosnia, and he displayed

17 authority and power in both the traditionally military

18 and civilian areas of authority and responsibility.

19 This combination would have enabled him to control

20 significant events. Further, it can be concluded that

21 he acted in pursuit of concrete, previously planned

22 policies.

23 One can conclude that he encouraged a policy

24 of confrontation with the Bosniak community, a pattern

25 of activity in accord with his verbal statements,

Page 13270

1 policy preparations and orders to subordinates.

2 Given the range of his implied and actual

3 powers, the reasonable conclusion, based on the

4 available evidence, is that he would have been aware of

5 such activities, and his degree of involvement and span

6 of command responsibility extended over all significant

7 armed elements and their major actions."

8 Now, isn't that precisely what we have to

9 determine, whether that is so or not?

10 MR. NICE: Those final conclusions are indeed

11 issues that the Chamber will have to consider. They

12 are, in reality, an overall conclusion, because the

13 rest of his report leading up to that is expert

14 conclusion supported generally by the footnotes. In

15 fact, one of the characteristics of his report is that

16 the first short part of the report is substantially

17 conclusions; matters of pattern and similar topics are

18 dealt with, supported by the footnote material to which

19 complaint is made by the Defence. Then he comes to the

20 overall conclusion at the end.

21 Now, on whether you're allowed, these days,

22 to have an expert giving an opinion on the final issue,

23 we've addressed that argument or that topic in our

24 skeleton, as the Chamber will recall, and the present

25 position is that, of course, you are allowed, subject

Page 13271

1 to certain specific exceptions in some jurisdictions --

2 I think it's at paragraph 9 -- you are allowed to have

3 experts offering opinion based -- opinion on the final

4 issue.

5 The extent to which you do and the extent to

6 which you're affected by that is ultimately a matter

7 for the Chamber, but certainly that is now the position

8 and --

9 JUDGE MAY: Well, you say that, but I

10 question whether that really is the position. The fact

11 that it happens is usually overlooked, I suspect, but

12 I'm by no means satisfied that that is the normal

13 position.

14 The other thing is that -- does it help us?

15 These are the matters that we have to decide. This is,

16 in summary, your case.

17 MR. NICE: The very last paragraph

18 incorporates propositions that are indeed in part our

19 case, but Your Honour will want to be looking at the

20 supporting conclusions, which are elements within it

21 and elements that go to support it, and they are also

22 outside the -- they are the principle matters that are

23 outside the experience of the Chamber and upon which

24 expertise is vital and helpful. And in his survey of

25 and marshalling of the material and then applying his

Page 13272

1 analysis to reach the conclusions that precede the

2 final conclusion, he is doing the work of an expert and

3 not expressing final conclusions.

4 And so the Chamber is left in this position,

5 in our respectful submission, that the material leading

6 up to the final conclusions is material that must be

7 admitted and attended to, and the Chamber can decide

8 for itself the extent to which it wishes to attend to

9 those very last conclusions that Your Honour has read

10 out to me. We would invite you to say that it is

11 permissible and absolutely proper to have them in mind

12 in much the same way as juries and, indeed, judges,

13 trying cases alone, regularly now have opinions on the

14 final issue in mind in either many or nearly all

15 jurisdictions, always free to say to themselves, "But

16 an expert is only a witness and he's a witness I can

17 accept, accept in part, attend to to confirm my own

18 provisional judgements, attend to to check where I find

19 myself in disagreement with what the witness says, or

20 to reject totally." And that, of course, is something

21 easier done, it may be thought, by professional judges

22 than by jurors, but in fact these days it is done by

23 jurors.

24 Accordingly, the answer to Your Honour's

25 question is, yes, you may indeed attend and it would be

Page 13273

1 proper to have before you those final conclusions, but

2 it's the material that leads up to them that is perhaps

3 much more important and much more valuable to you.

4 If Your Honour would give me just one minute,

5 please, because I want to ask just one question of one

6 of my colleagues.

7 [Trial Chamber confers]

8 JUDGE MAY: Yes, Mr. Nice.

9 MR. NICE: Your Honour, I was just reminding

10 myself, because when you're looking for something in a

11 document, you never find it. I said it's paragraph 9.

12 It picks up at 10 on the question of the final issue,

13 and then it's 15 and 16 that you'll find the citations

14 for the final issue. Fundamentally, and unless

15 Ms. Somers wants to draw to my attention anything else,

16 it's all the work that precedes that that is of

17 critical value to the Chamber.

18 And if I may respectfully say so, to build on

19 what I said at the beginning about this being, in a

20 sense, quite a premature matter to raise at this stage

21 and a matter properly raised with the witness when he's

22 here, this is a case where the witness can attend,

23 explain again his methodology, if that's in issue, and

24 his expertise, and the Chamber can then decide how far

25 through his report it wishes to hear from him in

Page 13274

1 amplification or justification of his report. And if

2 it chose to stop short at all or some of the last

3 conclusions, that would be for the Chamber, but it's

4 proper to be dealt with with the witness.

5 The point is made by Ms. Somers, and I'm

6 grateful to her for it, building on what I said about

7 the potential of expert evidence on the final issue to

8 assist triers of fact in all the ways I outlined; with

9 that in mind, we've called the witness towards the end

10 or very nearly at the end of the case so that, indeed,

11 ways in which it matches and ways in which it doesn't

12 match, either provisional judgements or other evidence,

13 can be of maximum value to you. And that, indeed, is

14 how an expert witness in most litigation is of value,

15 because he typically comes at the end of a lot of other

16 evidence and it's possible to use him as a check, one

17 way or another, and especially when he's formed an

18 opinion at an earlier stage and so can't be said to

19 have been in any sense tailoring his evidence to what

20 comes in the course of the trial.

21 JUDGE MAY: If he gives evidence about the

22 command responsibility, which is probably a mixed issue

23 of fact and law, we would, in our judgement, presumably

24 have to accept or reject it. But it doesn't matter

25 what he says about command responsibility. That's our

Page 13275

1 decision.

2 MR. NICE: Yes. That's your decision, but

3 there is absolutely no prohibition against your

4 attending to the expert opinion of someone else on the

5 topic, and indeed throughout the evidence that you've

6 been hearing, witnesses have effectively been giving

7 evidence on that topic, either direct evidence, where

8 they speak of some direct command --

9 JUDGE MAY: Yes, of course, but this witness

10 saw nothing. All he did was gather together the

11 materials and come to an opinion.

12 MR. NICE: But he gathers together the

13 material with expertise that is not available to us.

14 This is a recognised and respected area of

15 expertise to which he's devoted some part of his life,

16 entirely neutrally gathering materials that aren't

17 available to us in their broad range and knowing where

18 to look, and that marks him out and it gives him a

19 particular insight and a particular value.

20 If I may respectfully say so, I think that

21 the traditional view well known to common lawyers of

22 concern about the expert expressing a final view has

23 been disappearing for years. I think its first noted

24 disappearance was probably in criminal cases with the

25 issues of diminished responsibility, and for many years

Page 13276

1 judges were anxious as to whether they could or should

2 allow the psychiatrist to express the final view or

3 not. That's now, I think, all clear. They can. And

4 as that was changing in criminal cases, of course, the

5 position was developing in civil cases as well and in

6 other jurisdictions.

7 JUDGE MAY: That is a particular form of

8 expertise, of course.

9 MR. NICE: Yes.

10 JUDGE MAY: But we could debate this -- yes.

11 JUDGE BENNOUNA: [Interpretation] Mr. Nice,

12 outside this business of general conclusions, the

13 "ultimate issue question," quote/unquote, in the

14 expert report and what you consider to be expertise:

15 We call the witness to court; are there elements that

16 we're not familiar with and which Mr. Cigar may bring

17 to us through his expertise? That is what is

18 important, if we leave aside the general conclusions,

19 which are up to the Chamber, of course, and regarding

20 which the opinion of this expert will not be of great

21 assistance.

22 MR. NICE: The answer to Your Honour's

23 question is, yes, that there are expert elements, as

24 I've said, and indeed as we've attempted to set out in

25 the argument we've presented. When I say "attempted,"

Page 13277

1 it's for this reason: We haven't slavishly gone to

2 Professor Cigar to ask him to justify, through our

3 words to you, that he is an expert and the way in which

4 he is an expert, given that this issue is raised. That

5 would be, perhaps, a somewhat unfortunate thing for us

6 to do.

7 We have established the areas of particular

8 expertise, and they are set out in the skeleton. We've

9 checked with him that it is appropriate for us to lay

10 those matters before you, and he confirms that it is,

11 in particular, the methodology of this particular

12 expert and expertise. And it would, in our respectful

13 submission, be quite wrong to exclude him on grounds

14 that he isn't an expert without seeing him and

15 attending to him. We say it's manifest that he is, not

16 only by his access to material and, indeed, by his

17 familiarity with matters of language and so on, but for

18 all the other reasons that we've set out in the

19 skeleton.

20 It may be on this topic that Ms. Somers could

21 be permitted a few words if it's troubling you, because

22 she's looked at this with more detail and indeed she's

23 been actively concerned in the preparation of this

24 witness. But I must emphasise that this witness,

25 although he appears now only in the Kordic case, may be

Page 13278

1 the sort of witness who is particularly valuable or

2 could be particularly valuable in these cases generally

3 and this particular witness. Therefore, exclusion in

4 advance and on paper would be, in our respectful

5 submission, quite wrong. He must be given a chance to

6 explain and to confirm what we say about the expertise

7 he has.

8 It's all -- not all too easy. It is easy

9 sometimes to think that what one reads in an expert

10 report is the mere collation of material. But indeed,

11 and we know that in these trials, the collation of

12 material by witnesses has been accepted as a proper

13 form of evidence, but we don't, and we set out some

14 reference to that in one of the much earlier cases.

15 But we don't seem to rely on that heavily for the

16 introduction of Professor Cigar's report, because we

17 say he's a proper expert. Indeed he is an expert -- I

18 don't think there's any doubt about that -- and a much

19 respected one, whose material will be able to assist

20 you, particularly in relation to patterns of

21 consistency and behaviour broadly, sourcing material

22 that simply isn't available to us.

23 But can Ms. Somers deal with this particular

24 part rather than her flood me with materials, and she

25 can respond to Your Honour's question.

Page 13279

1 JUDGE MAY: Judge Robinson has a point and

2 then we'll hear Ms. Somers briefly, please.

3 JUDGE ROBINSON: Mr. Nice, following upon the

4 President's concern about the question of the final

5 issue, this case is largely built on inferences. Isn't

6 that so?

7 MR. NICE: It is significantly built on

8 inferences, as I explained at the beginning. Indeed,

9 at the beginning, never knowing how much direct

10 evidence I would have, I made it quite plain that the

11 case could be made out completely on inferences. In

12 the event, as evidence has become available, there's

13 more direct evidence than I forecast, but, yes, it is

14 significantly more direct evidence of commands and so

15 on. But, nevertheless, Your Honour is quite right.

16 JUDGE ROBINSON: And I think the question of

17 command responsibility will be resolved substantially

18 on the basis of inferences which the Tribunal will be

19 able to draw from facts which have been testified to

20 during the hearing.

21 I think that the concern which is being

22 expressed is that ultimately it is for the Tribunal to

23 draw these inferences from the facts which we hear from

24 the live witnesses and other testimony, and to what

25 extent are we going to be helped by having a witness

Page 13280

1 give his view as to that ultimate question.

2 I think this is what concerns us, because

3 ultimately that is a matter which we have to decide on

4 the basis of the facts.

5 He's not coming to testify as to any

6 particular facts. He's coming to give his view as to

7 the level of responsibility of a particular accused

8 based on matters which have come to his knowledge

9 through, admittedly, as you say, his expertise, on the

10 basis of his expertise. But essentially that is a

11 matter for us to decide, and to what extent are we

12 going to be helped by it?

13 For example, does it advance your case

14 significantly more if you were able to -- if you, in

15 your submissions, made a presentation arguing that you

16 have presented sufficient facts which allow us to draw

17 inferences as to command responsibility? Does it

18 advance your case any more if you are to do that than

19 to have this witness come and give his view as to the

20 level of responsibility based on his expertise? I'm

21 not sure myself that it advances your case

22 significantly.

23 MR. NICE: First, it's helpful to have your

24 concerns so that I can address them. To some degree

25 I'll be repeating what I said, but I can recast what I

Page 13281

1 said in a way that I hope is helpful, and I'll give you

2 an analogy as well.

3 The answer to Your Honour's question is, yes,

4 it indeed can help you and can help you significantly.

5 And before I explain again why, can we underline one

6 feature of the expert, which is sometimes overlooked

7 when played out before Judges, is the adversarial

8 system. The adversarial system is thought to involve

9 selection and even strategic or tactical selection of

10 material. It's not the case with this Prosecution, but

11 it's often thought that's what happens. But even where

12 there is any tactical or strategic selection of fact

13 witnesses, and there hasn't been, even where there is,

14 the witness comes as an independent body.

15 Indeed, in England, and I expect elsewhere,

16 there is a growing practice or requirement that the

17 expert is actually the Court's expert. In some

18 settings now, I know in England, the Court appoints an

19 expert so that he comes absolutely neutrally. But

20 that's only a reflection of what his position has

21 always been.

22 So when Your Honour says, "Is it not for us,

23 the Judges, to draw the inferences from the raw facts?"

24 the answer to that question is no. It is the Court's

25 duty to draw the inferences or to make the findings

Page 13282

1 from all the evidence. The evidence includes facts

2 from which inferences are drawn, but it also includes

3 relevant expertise in the form of opinion to which it

4 can attend.

5 And I now go back to the way I presented it

6 at the beginning. Given that the material before the

7 Court is facts in the form of evidence of facts and

8 opinion, each of which we are entitled to lay before

9 you, the Chamber then has the advantage, with its

10 expert, of remembering that he is independent and not

11 partial. And indeed in this case, as we know, he's

12 published in various ways, well before this trial was

13 started or maybe even conceived of; conceived of, I

14 think. So he's a man whose views are of an integrity

15 and long-standing integrity.

16 So the Chamber is able then to attend to his

17 expertise and expert opinion either to support, to

18 check, or, indeed, as I've already said, to reject.

19 There's a whole range of approaches to an expert.

20 Is it helpful? Of course it is. Let us go

21 back to -- I know a particular example, remote from the

22 facts of this case but, nevertheless, the helpful one,

23 for diminished responsibility. Here it may be that I'm

24 speaking about a particular corner of United

25 Kingdom-based law that will not be immediately known to

Page 13283

1 His Honour Judge Bennouna, but if we go back to the

2 example of diminished responsibility, the Chamber will

3 know or recall that the diminished responsibility test,

4 which I think has some reflection here as well, is a

5 test little known to psychiatrists. It was a test put

6 together by lawyers to serve whatever the then

7 practical requirements of the legislature were, but

8 it's a test which, nevertheless, incorporates

9 psychiatric or quasi-psychiatric language.

10 The test is one that you might think a layman

11 or a juror could deal with himself, especially given

12 the fact that the terminology doesn't really fit within

13 the lexicon of the expert witness. And of course when

14 the jury is asked the questions on diminished

15 responsibility, it's asked to attend to all the

16 evidence. But typically, if not in all cases, it is

17 assisted by experts who come along and who look at the

18 same material, and sometimes, of course, additional

19 material in the form of psychiatric examinations. They

20 build on the material, ordinary and expert, and they

21 offer a conclusion. And the Judge says to the jury,

22 "Accept it, reject it, deal with it as you will, but

23 it's part of the evidence in the case."

24 JUDGE ROBINSON: As the Presiding Judge says,

25 that is a very particular case of legislation which

Page 13284

1 sets out a particular definition of diminished

2 responsibility. That's a very particular case. I

3 don't think it derogates from the general principle.

4 MR. NICE: In my respectful submission, it

5 may be a particular case, but neither does it in any

6 sense diminish the value of the approach, because the

7 approach there is -- and one can think of lots of other

8 examples where experts are typically led in evidence.

9 I can think of plenty of other cases where tests have

10 to be applied that might be in part legal, in part

11 factual. One can think of, I suppose, almost endless

12 examples, if one has the time, of factory accidents,

13 matters of that sort, where there are tests to be

14 applied either following on from rules and regulations

15 or from Statute or, alternatively, under the common

16 law, where there is a straightforward test to be

17 applied and in respect of which an expert will be

18 called, the expert opinion being part of the material

19 upon which the Tribunal of fact and law decides but not

20 being determinative of it.

21 Those experts, typically, if not always these

22 days, express a view on the final issue. Yes, there

23 was a breach. Yes, there was negligence. Those issues

24 are very close to issues of what was the nature of the

25 command structure, very close. And in those cases,

Page 13285

1 Judges do not deprive themselves of the advantage that

2 such experts can give them. At the end of the

3 exercise, they use the expert to check their

4 provisional judgement, to bolster their judgement, or

5 they reject it. But as professional Judges -- and

6 these are, of course, in England, always cases tried by

7 Judges alone -- they never have any difficulty in

8 dealing with the material. And we would invite Your

9 Honours to say that that is the approach that should be

10 taken here, and that it does actually fall fairly and

11 squarely within all of the other sorts of cases where

12 experts are typically admitted.

13 If that answers -- I hope it answers; at

14 least it deals with His Honour Judge Robinson's

15 questions. Then back to His Honour Judge Bennouna's

16 question. It may be that Ms. Somers can help you with

17 a few detailed matters.

18 JUDGE MAY: Yes.

19 MS. SOMERS: The earlier expert witnesses

20 were able to place for the chamber the facts and the

21 times that are at issue in this indictment in a

22 historical context and in a socio-cultural context.

23 They stopped where their areas of expertise stopped.

24 The context at which we must make sure is of record

25 before this Chamber is the political and military

Page 13286

1 context, which no one fact witness and indeed the other

2 experts could not necessarily or could of necessity had

3 to stop where their own natural limitations took over.

4 Because Dr. Cigar is, through his

5 professional expertise, able to, having collected,

6 assess, synthesise and then conclude in a very neutral

7 manner, roles of the different entities, all of which

8 had events happening simultaneously, and because he

9 looks at all the relationships of what's going on with

10 the Serbs, what's going on with the Bosniaks, what is

11 going on with the Croats, both within Croatia and

12 within Bosnia at any given moment during the time span

13 that this Chamber must bear in mind, it is extremely

14 helpful to know what he can show you with the other

15 relating events, because facts can be looked at

16 differently depending on context. It is essential and

17 must be presented to this Court the context of the

18 conflict.

19 It is exactly that type of examination which

20 a political/military intelligence analyst, particularly

21 with the background of Dr. Cigar, brings to this

22 Court. The range of sources evidenced in the extensive

23 footnotes, which are, of course, only a fraction of

24 what this individual can bring to this Chamber,

25 indicates probably the most unique referencing of the

Page 13287

1 Croatian media, and indeed of the media of the former

2 Yugoslavia, that has ever been brought before this

3 Tribunal. It is critical to get an individual who is

4 trained to know the value of sources to come before the

5 Tribunal and get that information in. The ability to

6 look at events over a long period of time and find

7 patterns so as to be able to determine whether things

8 were random or policy is essential to the indictment.

9 Again, no one fact witness and perhaps even

10 all fact witnesses, even taken together, because of

11 their inherent limitations or the time during which

12 they served in theatre, can bring this.

13 The type of examination done by Dr. Cigar is

14 specifically geared toward presenting the context with

15 the fabric of what it means to be a political figure,

16 what it means to be a military figure in that political

17 and military structure. The issue has come up

18 repeatedly, as Mr. Nice has indicated, and to have the

19 correct person to address it is the thrust of our

20 bringing Dr. Cigar in.

21 Again, this conflict has presented facts and

22 information which are susceptible of many

23 interpretations, and all of us who have attempted to

24 keep current and understand them still have limitations

25 of either language or of just inability to scan or

Page 13288

1 peruse the entire span of this vast field of

2 information. As Mr. Nice rightly pointed out, it is

3 Dr. Cigar's responsibility to go to these sources which

4 address these issues that must be made part of the

5 record. There is only a benefit to be derived.

6 Rejection of certain findings is certainly

7 within the sound discretion of the Chamber. But to

8 complete and to show how things occurred, that they did

9 not occur in a vacuum but are susceptible of a

10 conclusion that there was policy, systematic, is

11 absolutely critical, and this is the type of witness,

12 clearly, who brings that information to the Chamber.

13 If there are any specific questions, I would

14 be very happy to address them.

15 JUDGE MAY: Thank you.

16 MR. NICE: I've got nothing else to say at

17 this stage, save to say that Mr. Guariglia reminds me

18 that in paragraph 10 there is reference to the Tadic

19 Trial Chamber and a witness who, I think, expressed a

20 view on the final question.

21 JUDGE MAY: I'm not sure that that's right.

22 I know who that witness was --

23 MR. NICE: Yes.

24 JUDGE MAY: -- because she gave evidence in

25 Kovacevic. She was a human rights historian or

Page 13289

1 compiler of a report in Prijedor, and I think that is

2 what she gave evidence about. I suspect that is what

3 she gave evidence about.

4 MR. NICE: The objection to her evidence, the

5 objection being overruled, was, indeed, as set out,

6 that her opinions were on matters that it was the

7 judgement of the Tribunal to supply, and the Tribunal

8 made the conclusion that, nevertheless, her evidence

9 should properly be admitted. I refer you to that for

10 your assistance.

11 JUDGE MAY: Thank you.

12 Yes, Mr. Stein.

13 MR. STEIN: Thank you, sir.

14 Let me start by debunking a myth. First,

15 Dr. Cigar is neither neutral nor an expert. In 1993,

16 having opined that Mr. Kordic was an inveterate

17 Muslim-hater, he doesn't come to this Court without his

18 sense of bias about him, and indeed he started his

19 project here for the Tribunal in 1996, having made that

20 statement -- I believe it's on page 134 of his book --

21 public. Moreover, he offers no expertise that the

22 Court doesn't already have.

23 His PhD, or Doctor of Philosophy, is in

24 Middle Eastern history and Arabic from the University

25 of Oxford. His thesis was Mohammed L. Khadar's Nashr

Page 13290

1 al Mathani, The Chronicles, which is a thesis about a

2 Moroccan historian, born on 14 April 1712, who

3 chronicled the struggle of various sultans. His

4 undergraduate degree is in French. He has a Masters,

5 of course, in international affairs and his M.S. in

6 strategic intelligence is in Soviet Union areas

7 studies.

8 The long and short of all this is I do

9 challenge what my opposition has said, and the bottom

10 line is he is no more expert than the Bench. His

11 graduate degrees versus our law training and our

12 background are identical, and he clearly, and Your

13 Honours clearly understand, he invades on your

14 province. He is the fourth judge. He is the

15 Prosecutor's closing argument, and he tries to make the

16 case for the Prosecution.

17 Indeed, I'm prepared, absent a showing of his

18 bias, which will take 15 minutes, to waive

19 cross-examination altogether if the Prosecution will

20 waive its closing statement, because that is what

21 Dr. Cigar is doing, and he's doing that in a fashion

22 that is most insidious.

23 I will pause only to mention that the

24 colour-charted examples that we gave you clearly

25 indicate what he does and doesn't do. His work is an

Page 13291

1 analysis of press accounts, OTP witness statements,

2 documents, videos and audiotapes, and other Tribunal

3 cases, and the colour-coding, of course, in the

4 skeleton argument is clear on that. It may not be as

5 clear relative to the footnotes. Our colour-coding

6 cites the various levels of hearsay. The reds show

7 one, two, or three levels; greens, one, two, or three

8 levels or evidence not in the record; and the blues and

9 dark blues show other levels of unreliability, and that

10 just may not be apparent.

11 The Prosecution concedes, in its response and

12 in its evidence or statements before the Tribunal

13 today, as follows: The issues before the Court are

14 complex and susceptible of obfuscation; page 4 of their

15 pleading. Experts trained to look at often ambiguous

16 facts, in light of their specialised knowledge and

17 training, present their analysis to the Court.

18 Paragraph 4. The exercise, in and of itself, benefits

19 the Tribunal by looking at facts and events in a manner

20 which otherwise may not, through no shortcomings of

21 their own, be apparent. And then finally at page 5,

22 paragraph 6, large amounts of evidence, which in one

23 context may appear to indicate certain things and in

24 another context brought to light by the expert's

25 training and experience, may indicate other things.

Page 13292

1 Now, what that all says is crystal clear.

2 The evidence on the record before the Court --

3 THE INTERPRETER: Could counsel slow down,

4 please.

5 MR. STEIN: The evidence before the Court is

6 ambiguous. It is susceptible to many interpretations,

7 but the only interpretations that count are yours.

8 The Prosecution has decided to hire an expert

9 to review not the record in this case but a shadow

10 case. He has reviewed not the transcript which is

11 available to him, he has not looked at the Defence

12 cross-examination, nor has he heard the Defence side.

13 He has instead looked at a variety of newspaper

14 documents, things supplied to him by the Tribunal from

15 witnesses, some of whom have appeared and some of whom

16 have not, and he has made his conclusion. The worst

17 part about his conclusion is he has made it -- and the

18 Prosecution mercifully conceded this in its papers --

19 he has made his conclusion having decided the

20 credibility and reliability of witness statements,

21 reports in news journals, accepted some and rejected

22 others. Indeed, on page 5 of their pleading, they

23 concede Cigar's report contains not only news articles

24 but a number of, quote, "open sources which have been

25 analysed with due regard to their reliability." "Open

Page 13293

1 sources" is apparently a word in the spy community of

2 which he comes from. He means statements of

3 witnesses. But the buzz words in this case is "with

4 regard to their reliability."

5 If I may be facetious, Judge Cigar has

6 decided who is reliable and who isn't, taking that

7 entirely from your hands, and presents to you his

8 analysis of the shadow case which I suggest.

9 Now, the Prosecution has suggested that we

10 need Dr. Cigar because he provides information

11 ordinarily outside the experience and knowledge of the

12 judges of the facts. Because you are professional

13 judges, experienced in international law, he adds

14 nothing to the mix. Indeed, at the close of the

15 evidence, although I do not know your process, I don't

16 know whether you meet jointly or individually, but you

17 have the evidence in front of you and you analyse it.

18 You look at what you believe and what you don't

19 believe, what was credible and what was not credible.

20 You look at the circumstantial evidence, the direct

21 evidence, and ultimately reach your conclusions.

22 Dr. Cigar invades that province, because he takes the

23 circumstantial case and he gives you his opinion on

24 it.

25 And the law, I believe, is clear that in

Page 13294

1 order to sustain a conviction beyond a reasonable

2 doubt, the Court, if it is to use circumstantial

3 evidence, must conclude that those presumed facts must

4 necessarily flow beyond a reasonable doubt to make the

5 proven facts. Cigar's insidious report, analysing a

6 case not before the Tribunal, essentially embarks on a

7 process of undermining the sanctity of the Court with

8 regard to that and injecting into the record, frankly,

9 irrelevancy.

10 His report is nothing more or less than the

11 summary, if you will, already ruled on in the Tulica

12 dossier. His report, with regard to the big picture,

13 is the same as the investigator's report with regard to

14 Tulica. And like the investigator's report with

15 Tulica, he takes those witness statements at face

16 value. He doesn't look at the cross-examination, and

17 I've already mentioned that.

18 Now, with regard to his method, and this

19 becomes important -- I won't discurse on the law, but

20 for two minutes I will discurse, if I may -- the method

21 that he employs is unintelligible and it is conceded to

22 be unintelligible by the opposition. Page 11,

23 paragraph 15, Dr. Cigar brings a methodology

24 of synthesis and deduction distinct to those who are

25 expert in this discipline. Then they go on to say at

Page 13295

1 page 9, paragraph 12, that this kind of discipline is

2 taught with a high degree of commonality between

3 courses. And at page 12, they concede, "The

4 intelligence process cannot be reduced to a

5 mathematical formula."

6 In short, Dr. Cigar cannot tell you his

7 method, except, "I look at it, I induce, I think

8 through it, I compare, I contrast. We learn this in

9 various schools. Indeed, there are various courses on

10 this. I may even teach those courses." That's nothing

11 that the Court can't do on its own.

12 JUDGE MAY: That, surely, is a matter for

13 cross-examination, and if there are matters about the

14 expertise, about the materials upon which the opinion

15 is based, about the method with which the witness came

16 to his conclusions, all that is the subject of

17 cross-examination and ultimately a question of weight,

18 isn't it?

19 MR. STEIN: The answer, sir, is respectfully

20 "no". The body of law on which Ms. Somers relies in

21 her work and which I, to some degree, do is the

22 respectful thought of our United States Supreme Court,

23 where they talk about junk science. That's the Daubert

24 opinion that Ms. Somers cites in her pleading. Daubert

25 essentially said that the courts are the gatekeepers of

Page 13296

1 that which should be kept from the triers of facts, the

2 jury, and make preliminary screenings. I think that's

3 a proper role. Everybody agreed with that. But to the

4 extent that they do was then set forth in an opinion

5 Ms. Somers ignored, and that is the March 1999 holding

6 in Kumho Tire versus Carmichael, and the reason it's

7 significant is because Justice Breyer of the Court, a

8 noted Harvard law professor before he took the Bench,

9 opined again on this very issue of what should be the

10 kinds of things that the trier of facts hear. Now, of

11 course, they make the dichotomy all the time between

12 jury and judge, the judge screening appropriate

13 expertise so the jury does or does not hear it, but in

14 this particular case there is truly no difference, and

15 in fact it goes even more, because you, as experienced

16 professional judges, don't need this kind of help.

17 So the modern view set out in the Kumho Tire

18 is that the Court should be very reluctant to introduce

19 junk science, expertise that doesn't show a methodology

20 that is capable of articulation, repetition, analysis

21 and peer review, and the role of the Court is to keep,

22 essentially, evidence which looks tantalising, and may

23 in fact be tantalising, out from the triers of fact

24 unless it is reliable and probative, and in this

25 particular case, since the method -- and that's what

Page 13297

1 I'm focusing on -- is not apparent, it's just

2 intelligence-gathering of open-source material, in

3 short it's one man's opinion.

4 Not only is it one man's opinion, Your

5 Honours, but the reason why -- and ultimately I'm going

6 to conclude on these two thoughts -- the reason why

7 it's so insidious and should not be injected into the

8 record is it's another death by a thousand cuts.

9 We've had tons of military witnesses in this

10 case. They've opined, based on on-the-ground

11 experiences, about a variety of issues, but they

12 haven't gone -- and some have gone so far on issues of

13 command of control and responsibility to give their

14 opinion. They were there. Appropriate.

15 This is someone who wasn't there, who is

16 taking evidence not before the Court, heard out of the

17 presence of Mr. Kordic, and opining on what the

18 conclusion is. And that's where I'd like to leave, not

19 yet discussed, the confrontation rights, because Judge

20 Cigar, and I am being facetious, Judge Cigar

21 essentially is judge and trier of fact of witnesses not

22 before the Tribunal, who you have not heard, and nor

23 has Mr. Kordic had an opportunity to confront. He

24 doesn't look at expert material, scholarly documents,

25 treatises. He's not like the other experts in this

Page 13298

1 case who at least made an attempt to read and review

2 the scholarly literature on this subject. He's

3 reviewed nothing but factual material.

4 JUDGE ROBINSON: Mr. Stein, are you saying

5 any of these three things or all of them; first, that

6 Mr. Cigar is not an expert? That would be a

7 preliminary issue. That would raise a question of

8 screening. If you are correct that he's not an expert,

9 then we shouldn't hear him. Secondly, are you saying

10 he's an expert but an expert who has gone about his

11 business in a poor fashion? That's not a screening

12 matter. That could be addressed in cross-examination.

13 Thirdly, are you saying that the subject matter on

14 which he is invited to testify is not one that is

15 proper for expertise? And that brings to mind the

16 issue raised initially by the Presiding Judge as to the

17 ultimate issue. That would also be a screening

18 matter.

19 MR. STEIN: Let me take them in order.

20 The only reason I challenge in this form, at

21 least, the qualifications of the expert is just because

22 apparently, unless you speak up, you're deemed to have

23 consented or admitted or waived. It is absolutely true

24 that the issue of whether he is an expert or not is a

25 screening matter. I only raise it because I didn't

Page 13299

1 want to be held silent.

2 The second question is his methodology. That

3 is where the rubber meets the road in the United

4 States, because if the expert's methodology is

5 inappropriate, the jury or trier of fact will never

6 hear it, and there are pre-trial hearings just like

7 this.

8 But the third and independent and separate

9 point is, yes, when all is said and done, and I

10 encourage you to read the report, it tells you how you

11 should rule and, consequently, is of no assistance to

12 the Chamber and isn't, therefore, a preliminary

13 matter -- it isn't an assessment matter, because the

14 report is going to be entered into evidence, it is his

15 opinion, he will be briefly examined for a few minutes

16 by the Prosecutor, and that's what the evidence will

17 be.

18 So I guess those are long answers to your

19 questions. I hope I have answered them. But the

20 reason we raise these things preliminarily is because,

21 frankly, if this kind of process is allowed to go on,

22 then we didn't need the first ten months of the trial.

23 We could have just put Dr. Cigar on the stand. He's

24 looked at a lot of literature out there, and you can

25 rely on him, and that's the end of the case.

Page 13300

1 If I hear right, Mr. Nice is essentially

2 saying, "Consider the ramifications of this for other

3 cases, because Dr. Cigar has been signed up for other

4 cases." I don't think that's an appropriate argument.

5 That's the floodgate argument, "You have to rule in our

6 favour or the floodgates will open up or close."

7 So Your Honours clearly -- and I was tempted

8 not to use the 45 minutes allotted, but I resisted the

9 temptation -- Your Honours clearly understand the nub

10 of the issue is the invasion of Your Honours'

11 particular province by a man who offers nothing more

12 than you already have.

13 Because I'm enormously sensitive, I like to

14 think, by training and bias to the issues of

15 confrontation, I raise that as well, because I think

16 that's important. So that's all I have to say on

17 that.

18 Frankly, other than pointing out one more

19 time that Dr. Cigar's report is hearsay upon hearsay

20 upon hearsay, unreliability upon unreliability upon

21 unreliability, and those things are set out perfectly

22 adequately in our papers, I will say no more, unless

23 the Court has any further questions.

24 JUDGE MAY: Thank you, Mr. Stein.

25 MR. STEIN: Thank you, sir.

Page 13301

1 MR. NICE: May I reply just on a couple of

2 points, please.

3 First of all, most of the points made by

4 Mr. Stein really are matters for cross-examination.

5 The challenges to expertise, the assertion of bias and

6 matters are of that sort are not matters that the

7 Chamber can deal with today.

8 His credentials are set out in his report,

9 and indeed further on page 11 of our argument. But

10 insofar as they are raised today, it is, as I venture

11 to say right at the beginning, simply too early.

12 The complaint about sources and about the use

13 of the word "reliability" doesn't reflect the fact that

14 the vast majority of the sources to which

15 Professor Cigar refers are quotations from newspaper

16 articles, and it is, no doubt, with that in mind that

17 he uses the word "reliability" in order to ensure that

18 he diminishes material that may be less reliable than,

19 for example, direct quotations from newspaper articles

20 or television broadcasts and matters of that sort.

21 On the question of whether he should have

22 reviewed the evidence or not, well, two points emerge.

23 Of course, if he sat here throughout the case reviewing

24 the evidence, then there would be the complaint that he

25 was invading your factual function. The second point:

Page 13302

1 Insofar as the evidence given by witnesses whose

2 statements he's looked at diverges -- normally it does

3 or it doesn't; normally they simply confirm what they

4 said, but insofar as there's divergence, that's a

5 matter that can be dealt with by way of

6 cross-examination.

7 Yes. I think I've made the point that they

8 are, for the most part, interviews. They're not

9 articles. And the interviews are not only with --

10 they're with a range of people, including Boban and

11 Kordic and other such people.

12 Again, I'm not going to be able to argue his

13 expertise for him. It's a matter that would require

14 his being here. But I understand that expertise of

15 this kind, these days, is some of the expertise that's

16 relied on when decisions are made by armies and by

17 politicians. It is reliable and it is the matter of

18 expertise, and it's the only way you can have the

19 fuller, wider context of this case, which may be of

20 value to you.

21 The suggestion that he should be brought at

22 the beginning is again unfortunate. It's for the very

23 reason that he's here as an assistance and a check but

24 not to substitute that he has been brought at the end.

25 I have to say we reject the unhappy and

Page 13303

1 somewhat extravagant criticisms of the witness, but in

2 any event, were they to be as well-founded as Mr. Stein

3 would like you to believe they are, they can be dealt

4 with by him in cross-examination.

5 So coming back to His Honour Judge Robinson's

6 three queries as to whether by distinguishing between

7 screening matters and other matters the evidence should

8 be excluded, it's our respectful submission that

9 there's absolutely no grounds for exclusion, because

10 it's either a preliminary matter expertise that's for

11 the witness to deal with, and it can't be dealt with on

12 paper; it's either a question of complaining about the

13 deployment of his expertise, again, as I think His

14 Honour was raising as a possibility a matter for

15 cross-examination and not a matter of preliminary

16 nature. And the other issue of real screening doesn't

17 arise, because this witness gives evidence of opinion

18 on the steps towards the final conclusions and the

19 final conclusions, all of which are properly

20 admissible.

21 I don't think I need go any further than

22 that. I repeat again that the evidence wouldn't take

23 very long certainly in chief, and that the Chamber

24 could itself -- I see Mr. Stein wants to say something

25 else, but before he does, I'm not encouraging the

Page 13304

1 Chamber to do this, but Chamber's ability to regulate

2 its proceedings means that it is not the case of the

3 witness coming in and I or Ms. Somers saying, "Is this

4 your report?" and that standing as the evidence, as the

5 Chamber can itself say to what degree, at that stage,

6 it's going to accept all of the report as evidence.

7 And it may be the case that the Chamber would, given

8 some of the concerns it's expressed this morning,

9 invite us, if the evidence is led, to deal with

10 particular topics before it then says, "Well, we will

11 incorporate those paragraphs into the evidence." And

12 that would be an exercise of discretion by the Chamber

13 well within its powers, because we don't suggest that

14 any right we have to call relevant evidence is a right

15 to impose on the Chamber all of that evidence. The

16 Chamber has its own powers.

17 I have one more note. Let me see what it

18 says. 94 bis does not contemplate the exclusion. It

19 only contemplates cross-examination. We've made that

20 point in the skeleton argument, and I said we don't

21 rely on it heavily, but it's not lacking in

22 importance. The contemplation is that experts will be

23 led if they're relevant. This one is an expert, this

24 one can show he is, and that there will be

25 cross-examination. That's all I wanted to say.

Page 13305

1 MR. STEIN: May it please the Court.

2 JUDGE MAY: Mr. Stein, we usually don't allow

3 continued debate. You've had your go.

4 MR. STEIN: They went first. I thought -- I

5 have two minutes, Your Honour.

6 JUDGE MAY: Well, the order is -- they went

7 first, and they have the right of reply. You don't

8 have one. We've heard enough. Thank you very much.

9 [Trial Chamber confers]

10 JUDGE MAY: We've considered this matter. We

11 do have in mind Rule 94 bis, of course, which

12 contemplates a procedure in relation to expert

13 evidence. However, it doesn't affect the Trial

14 Chamber's power to exclude evidence under Rule 89 or,

15 as in this case, 89(C), which allows the Chamber to

16 admit any relevant evidence which it deems to have

17 probative value.

18 Much of the complaint made by the Defence

19 about this witness is matter which is susceptible to

20 cross-examination and is a question of weight.

21 However, they raise a fundamental point, which is that

22 what this witness effectively is doing is to provide

23 evidence or provide opinion, more accurately, upon the

24 very matters upon which this Trial Chamber is going to

25 have to rule, and that, as they correctly point out,

Page 13306

1 invades the right, power, and duty of the Trial Chamber

2 to rule upon the issue. And matters have been raised

3 in argument about that, and I refer, in particular, to

4 the conclusions about command responsibility. But the

5 evidence of the witness which has been put forward

6 doesn't stop there. It is littered, if I may say, with

7 examples of conclusions, drawing inferences, drawing

8 conclusions, which it is the duty of this Trial Chamber

9 to consider and to draw if appropriate or to reject.

10 It's correctly pointed out that the witness

11 hasn't heard the evidence. We have, and we have to

12 decide the case. It's not a matter for him to decide.

13 It may be that in certain circumstances

14 experts are now permitted in jurisdictions, certain

15 jurisdictions, to give evidence about the ultimate

16 issue, but we don't think that this is such a case. We

17 also don't think, and this is a matter where Rule 89(C)

18 comes into play, that his evidence is going to assist

19 us very much. 89(C) says we may admit any relevant

20 material which it deems to have probative value.

21 Because it's dealing with the matters which

22 we have to deal with ultimately, drawing the

23 conclusions and inferences which we have to draw, we

24 think that it does not assist and is, therefore, not of

25 probative value. We have in mind, of course, all of

Page 13307

1 the evidence which we've heard over the last ten months

2 in so deciding.

3 Accordingly, we shall exclude the evidence.

4 MR. NICE: As Your Honour pleases. The next

5 witness is producing the video. I have yet to speak to

6 him. He wasn't around yesterday afternoon. I believe

7 the video is here and I believe he's outside. I don't

8 know if I could presume to suggest a short break now,

9 the overall consequence of which might be that we will

10 not only meet the 12.30 deadline but possibly even

11 finish before it, but I don't know.

12 JUDGE MAY: It's about the right time to take

13 the break. Twenty minutes.

14 MR. NICE: Thank you very much.

15 --- Recess taken at 10.15 a.m.

16 --- On resuming at 10.38 a.m.

17 [The witness entered court]

18 JUDGE MAY: Yes. The witness is here. If

19 you would take the declaration.


21 [Witness answered through interpreter]

22 THE WITNESS: I solemnly declare that I will

23 speak the truth, the whole truth, and nothing but the

24 truth.

25 JUDGE MAY: Thank you very much. If you'd

Page 13308

1 like to take a seat, Mr. Capelle.

2 Examined by Mr. Nice:

3 Q. Mr. Capelle, I think you were a

4 Lieutenant-Colonel in the French Army. You were in

5 Bosnia for several years at the time of the conflict,

6 and you are more recently working for the OTP as a

7 military analyst; is that correct?

8 A. Yes, it is.

9 Q. Just tell us a little bit about the time in

10 Bosnia so that you can explain how well you would have

11 known the area. How many years were you there?

12 A. The first time I worked in Bosnia in 1991

13 with the European committee as a monitor. Then I

14 returned in 1992 with the first mandate of UNPROFOR,

15 and I was with the headquarters in Sarajevo, and I was

16 Assistant Officer for the UNPROFOR. Then I returned in

17 1993, and I was military observer in Sarajevo. In 1994

18 I became the Liaison Officer with the HVO in Posusje.

19 And in late 1994 I was posted to the headquarters in

20 Zagreb as the Intelligence Officer with the UNPROFOR,

21 and I was with them until 1995. In 1995, I came back

22 to the Tribunal as the military analyst, and then I

23 went for a short time to Bosnia, and I stayed there

24 once again for about one year and a half.

25 Q. The video that we're going to be looking at

Page 13309

1 was made on what day?

2 A. This video was made on the 25th of May,

3 1996.

4 Q. You were involved in preparing the mission in

5 which the video was made, but you didn't, in the event,

6 travel in the helicopter while the video was being

7 taken?

8 A. Correct. I prepared that mission, which had

9 two stages. First, taking recordings on the ground

10 through the villages, and the second stage was the

11 video which I prepared.

12 THE INTERPRETER: Will the witness slow down,

13 please.

14 JUDGE MAY: A request that the witness slows

15 down, please.

16 MR. NICE: I know that the witness is indeed

17 bilingual. He's speaking French for various reasons.

18 He may find that he speaks at the speed more helpful if

19 he speaks in English. I expect he'll speak in both

20 languages.

21 Q. But whatever it is, can you do it fairly

22 slowly.

23 JUDGE MAY: Choose whichever language you

24 like, but slowly.

25 A. Yes. Very well. Thank you.

Page 13310

1 MR. NICE: [Previous translation

2 continues]... we're going to cover a lot of territory

3 very quickly. I can tell the Chamber that the video,

4 first of all, goes up the Lasva Valley and then comes

5 back again. It may not be necessary to go beyond the

6 first part of the trip, which will be a little under an

7 hour, I think.

8 I've raised with my learned friends whether

9 it would be helpful, subject to the Court's view, for

10 them to be allowed simply to ask that the video be

11 stopped at any points where they want to make points,

12 if that happens, rather than for the whole thing to be

13 rerun again for a second time. This may or may not

14 create difficulties for those taking notes; I don't

15 know. But subject to all those problems, I would

16 invite that as a possible --

17 JUDGE MAY: Mr. Stein and Mr. Kovacic, I mean

18 that seems a sensible course, unless you particularly

19 want to do it in some other way.

20 MR. STEIN: My sense is there may come a

21 time, but I doubt it, that we stop the video. At the

22 end, however, either through cross-examination or a

23 statement, we would like to address the Court as to,

24 frankly, what's not on the video.

25 JUDGE MAY: Well, if there is some point on

Page 13311

1 the video where either of you want to raise a point or

2 any counsel wants to raise a point, it might be

3 sensible to get it stopped then and there and we can

4 look at whatever it is that you want to be pointed

5 out.

6 MR. STEIN: Very good, sir.

7 MR. NICE: I think the witness will himself

8 ask that the tape be stopped from time to time just to

9 explain where we are, what we are doing.

10 I think the Chamber will, in particular,

11 probably want to have a look at Kaonik. Kaonik is

12 difficult to see from the road, but it is possible to

13 see it through the trees on the video.

14 If there's any view of the mountain road, and

15 Colonel Capelle thinks that there is, it might be worth

16 looking at that, because that is a different type of

17 terrain from the rest of the valley, which is low and

18 somewhat intimate. There may be other places at which

19 the witness will suggest we stop the video.

20 Subject to that, may the video, which is

21 Exhibit 2799, be played, and may I, with the Court's

22 leave, be seated except when I have to stand, as it

23 were?

24 JUDGE MAY: Yes, of course.

25 [Videotape played]

Page 13312

1 A. The video begins with a view of the village

2 of Tulica, which is 11 kilometres to the south-east of

3 Kiseljak.

4 MR. NICE: Without stopping the video, can

5 the witness, perhaps at a suitable time, select a place

6 to stop and point out where we see destroyed roofs or

7 destroyed buildings so that we can thereafter recognise

8 them more easily for ourselves.

9 A. Yes. We're reaching the area of destruction

10 of Tulica. One characteristic is that most roofs have

11 disappeared, which below them sometimes houses are

12 intact.

13 In parts of the video, one can see the areas

14 which are somewhat blackened, as houses which have been

15 set on fire, even though the roofs are still in place.

16 One sees here that the majority of roofs have

17 disappeared from the houses.

18 The helicopter is now flying over a zone

19 which was all criss-crossed with trenches in the area

20 of Tulica. This now appears quite clearly on the

21 screen. One can also see that there are several lines

22 of trenches, and that is what one finds on the ground

23 all the time, more than one line of trenches.

24 The helicopter has now turned towards

25 Kiseljak, that is, north-west, and is reaching the area

Page 13313

1 of Grahovci and Han Ploca. This village is along a

2 road which climbs up the hill to the crest which

3 dominates the road Kiseljak-Sarajevo. We see the

4 houses still have their roofs, but most of them are

5 destroyed.

6 Here we again see this net of trenches, and

7 down there is the village Han Ploca, Grahovci.

8 We are reaching the village of Rotilj, which

9 is to the north -- that is, to the west of Kiseljak to

10 south-west of Kiseljak, south-west of Kiseljak some two

11 kilometres.

12 Now you can see that the windows have mostly

13 disappeared from the houses, which is a sign, and then

14 a number of destroyed houses. Some of these houses do

15 not have roofs anymore.

16 MR. NICE:

17 Q. Without stopping the video, when you see an

18 example of roofs that can be distinguished sometimes

19 between Muslim and Croat roofs, will you just draw that

20 to the Chamber's attention, please.

21 A. Yes, I will do that.

22 Now we have reached Kiseljak, and we see in

23 the centre what was the Kiseljak mosque. Its minaret

24 has disappeared. The mosque was to the north of that

25 town, near the road between Kiseljak and Busovaca.

Page 13314

1 Now we're flying over the height of Kiseljak,

2 and it's reaching the HVO barracks in Kiseljak. These

3 barracks are to the south-west of the town and along

4 the route between Kiseljak and Kresevo.

5 The helicopter is now turning west of

6 Kiseljak, and this is the village of Visnjica, about

7 three and a half kilometres west of the town. The

8 helicopter follows the road then which leads to

9 Visnjica.

10 Could you -- stop, please, the film. Could

11 you stop the film? Now, on the hills beyond, one can

12 see that there are no more windows, and all these

13 houses are gutted out. And the majority of the houses

14 which were on the crest up here are destroyed.

15 You can proceed with the film. Yes, you can

16 proceed with the film.

17 We are now arriving at Visnjica, which I

18 should say is in a valley, and here almost all of the

19 houses were destroyed.

20 Now we see that these houses are along the

21 road, and we're passing over the mosque in Visnjica.

22 We are reaching the exit from the village of

23 Visnjica, and the helicopter will now fly over the

24 village. The houses that you see here were destroyed,

25 and in 1996 nobody lived there, and even the houses

Page 13315

1 which had the roofs on.

2 Here we are turning. We see the mosque now.

3 It will appear on your right.

4 The helicopter now arrived at Polje Visnjica,

5 which is along the Kiseljak-Busovaca main road. There

6 are destroyed houses. There are also intact houses

7 there in which the Croat population in the Kiseljak

8 region resides.

9 Would you stop the film, please? Could you

10 stop the tape? Now you can see, to the right and

11 above, and it is relatively clear -- will you please

12 stop the tape? Could we go slightly back, please? We

13 missed that. You can see here roofless houses, and we

14 can see very clearly some houses which do have roofs

15 but the interior of which has been burned or otherwise

16 destroyed. Yes, I think we passed those pictures.

17 Yes, we can move on.

18 Now we are following the road between

19 Kiseljak-Busovaca, passing over Hercezi Duhri, flying

20 over the mosque. And here we are still in the same

21 area near Visnjica and about two or three kilometres

22 away from Kiseljak.

23 We are still in the same area. One can see

24 very clearly the mosque in the centre or, rather, to

25 the left and to the centre. Then we cross the road

Page 13316

1 Kiseljak-Busovaca and turn to the north-east in the

2 direction of Gomionica, and indeed the destruction here

3 is much more evident. Almost all of the houses are

4 without roofs.

5 Behrici is a village adjacent to Gomionica.

6 These villages are on the slope facing the

7 Kiseljak-Busovaca road. We are making a circle and

8 turning towards Gomionica.

9 Would you stop there? Could you stop the

10 tape, please? Here again -- yes, thank you. Once

11 again, we see a group of houses which were all

12 destroyed, all of them. One sees, for instance, houses

13 to the right and closer to us that still have roofs,

14 but one can see that the interior of all those houses

15 was destroyed, and the same holds true of the houses

16 which are behind those in the front.

17 You can move on.

18 We are still flying over Gomionica. We have

19 made a circle, in fact. We are now going towards

20 Svinjarevo, a little bit to the north of Gomionica. We

21 are still following the Kiseljak-to-Busovaca road.

22 This is Svinjarevo that I spoke about a

23 moment ago, a village adjoining Behrici and Gomionica.

24 JUDGE MAY: Is this a valley that we're going

25 up?

Page 13317

1 A. Yes, indeed we're going up a valley. The

2 villages that we're going to see are on the slopes of

3 that valley, on the slopes of the hills. And I think

4 that the river flowing through that valley is the Mlava

5 River. We're still not in the Lasva Valley. We're

6 south of Busovaca, the Mlava Valley.

7 JUDGE MAY: Is it sometimes referred to as

8 the Kiseljak Valley, or is that somewhere else?

9 A. There are several valleys around Kiseljak,

10 and I don't think this can be called the Kiseljak

11 Valley. But the axis to the north of Kiseljak, going

12 towards Busovaca, goes along a valley up to the zone

13 where we are now. So we are in a valley.

14 JUDGE MAY: Can we go on, please.

15 [Videotape played]

16 A. Could you stop the camera. What appears more

17 clearly now on the screen is the mosque on Svinjarevo

18 and the roof. However, the quality of the picture

19 doesn't allow to us see the details, but the roof has

20 been partially destroyed. And as in the case of most

21 mosques that we saw in the area, the minaret has been

22 destroyed by explosives. It has been mined.

23 We can play the tape now.

24 [Videotape played]

25 A. Can we stop the tape, please. What we see on

Page 13318

1 the screen now is the helicopter is leaving the area of

2 Svinjarevo and we are also leaving the zone of

3 Kiseljak.

4 Actually, you had a question regarding this

5 valley. Yes, we went along a valley, and we saw a

6 certain number of villages situated on one and other

7 side of that valley going from Kiseljak. We saw those

8 villages up to Svinjarevo, which are to the right and

9 left of the road that follows the valley, and we are

10 now going to another area, the area of Busovaca. These

11 areas were separated by a corridor controlled by the

12 Bosniak forces during the conflict. So the next

13 pictures will be of villages to the south of Busovaca.

14 There's an entire area known as the Kacuni corridor,

15 which will be shown on the screen now.

16 [Videotape played]

17 A. The first village we're going to see now to

18 the south of Busovaca is the village of Dosnici

19 [phoen], situated to the south-east of Busovaca. We're

20 still in Svinjarevo. We can see the trenches now on

21 the high ground above Svinjarevo.

22 Here again we have houses with roofs, but it

23 is quite clear that the houses have been destroyed

24 nevertheless.

25 MR. NICE:

Page 13319

1 Q. Will you remember to comment on the shape of

2 the roofs when you find an opportunity.

3 A. Yes. The majority of Muslim houses had roofs

4 with four slopes, as you can see, as opposed to houses

5 that we're going to see in Croatian villages. Most

6 Muslim houses have roofs with four slopes.

7 Now we are in the area of Busovaca already,

8 and we are two or three kilometres south of Busovaca.

9 This area is on the hills overlooking the

10 Busovaca-to-Kiseljak road.

11 The area here is covered and, unfortunately,

12 many of the pictures taken from the helicopter does not

13 fully display the relief of the terrain. Here the

14 destruction is also very clear, even when there are

15 parts of roofs remaining, as we see on the screen now.

16 We're still in the same area; that is, flying

17 over the hills south of Busovaca.

18 We have now reached the Draga camp to the

19 south of Busovaca, a camp located in a narrow valley,

20 just before the entrance to the town. And we are now

21 above the Busovaca-to-Kiseljak road. To the left is

22 Kiseljak, to the right is Busovaca.

23 The building there is a building occupied by

24 HVO forces.

25 We are leaving the camp and heading towards

Page 13320

1 Busovaca. We're flying over the town of Busovaca.

2 Here too we can see some destruction of houses, some

3 houses without roofs, when that is very clear, but

4 others with roofs, when the interior has been

5 destroyed. The destruction we have just seen were on

6 the periphery of the town, to the north, on the

7 outskirts of the town.

8 Here is an indication of the Busovaca mosque

9 that we're going to see on the screen.

10 Now we're overflying the northern suburbs of

11 the town.

12 A few kilometres from Busovaca is Kaonik, the

13 Kaonik camp, and you can notice that the buildings of

14 this camp are surrounded by trees, and it is virtually

15 impossible to see it. We see the road to the left, and

16 it is almost impossible to see the buildings of Kaonik

17 camp, which is concealed by the vegetation and which is

18 on a hill. We're only two kilometres -- two and a half

19 kilometres from Busovaca. We're still flying over the

20 buildings of the camp.

21 The helicopter is now leaving Kaonik camp and

22 is heading to the west, to the villages of Strane and

23 Merdani. These villages are in the Lasva Valley.

24 We're passing Strane now, where the

25 destruction is quite evident.

Page 13321

1 We are two or three kilometres to the west of

2 Kaonik camp and close to the road of the Vitez-Kakanj

3 or Vitez-Zenica road.

4 The helicopter is now going to cross the

5 Lasva Valley to go to the north of the valley and fly

6 over the villages of Putis, Jelinak, and Loncari.

7 That's where we are now.

8 To the left you can see the hills which are

9 part of the Kuber range. When we visited these

10 villages, they were already in the process of

11 reconstruction. As you will be able to see, some of

12 the roofs are completely new.

13 And now we see that this area is far more

14 open than the area around Busovaca.

15 Here we see on the screen that some of the

16 roofs are new and a great deal of damage is evident.

17 We're in the same area to the south of the

18 Kuber range, and we're flying over now Gravrino Kuce.

19 We're only some eight kilometres away from

20 Vitez, which is a maximum ten-minute drive from Vitez.

21 "The mosque at Putis" is written on the

22 screen, but you can't see it at all. A large number of

23 houses in Putis were already repaired or in the process

24 of repair when we visited.

25 On the screen, it says that the area we are

Page 13322

1 flying over is not really known. In fact, it could be

2 the hamlet of Bakiye, which is situated between Loncari

3 and Putis at the top of a hill.

4 We are still in the same area south of the

5 Kuber range, a very important area, from the strategic

6 point of view, for the freedom of action along the

7 Busovaca-Vitez route, and we're going to leave that

8 area now to approach Vitez and fly over Nadioci and

9 Ahmici.

10 We have now arrived in Nadioci in the Lasva

11 Valley, and we are flying over the Vitez-Busovaca

12 road.

13 We're now approaching the location of a

14 bungalow, what was called the Bungalow in Nadioci.

15 Here almost all of the houses in Nadioci were

16 destroyed.

17 So the helicopter is now flying over Nadioci

18 hills and is approaching Ahmici, and here again this

19 village is against the range which -- mountain range

20 or, rather, the hill range which is very important,

21 because it controls the road.

22 So now we are overflying the location of the

23 Bungalow. We passed it by, and it was destroyed

24 meanwhile.

25 We are now coming to Ahmici from the south.

Page 13323

1 We see the Vitez-Busovaca road in front of us now, and

2 one can distinguish in the centre the road which leads

3 to Ahmici.

4 We are now on the other side of the road and

5 overflying Ahmici. We are overflying the part which is

6 the closest to the Vitez-Busovaca road, and almost all

7 the houses -- practically all the houses here were

8 destroyed. There are only a few intact houses, and

9 these are inhabited by Croats.

10 Now we can see in the centre of the screen

11 the mosque in the lower part of Nezirovici. It

12 disappears down on the monitor, but we shall see it now

13 in the centre.

14 Now we are going up Ahmici and then moving to

15 the Upper Ahmici. Here we are above Ahmici, in the

16 upper part of Ahmici. And here, because the roofs are

17 there, one might think that the houses are intact, but

18 they are, nevertheless, destroyed. I'm referring to

19 the houses that we can see on the screen.

20 We are still in the upper part of the village

21 of Ahmici, and this is the mosque in Upper Ahmici.

22 This is the mosque in Lower Ahmici. Its

23 minaret was broken, and it fell on the roof of the

24 mosque.

25 We see the Vitez-Busovaca road.

Page 13324

1 Now the helicopter turns, and we see -- at

2 the bottom, we see that we are now coming to Vitez,

3 about five minutes from the town.

4 Now we are flying along the road and coming

5 to Santici, which adjoins the village of Ahmici as one

6 approaches Vitez, and we can see the range which

7 dominates the valley and then Kuber in the background.

8 Here we are about two and a half kilometres from

9 Vitez.

10 Now we have reached the area of Pirici, and

11 we see the roofs which had been repaired. It is quite

12 clear on the house which has just disappeared from the

13 screen. That roof had been rebuilt.

14 And it says here all the area that one can

15 see from the helicopter, that we saw, and the area that

16 we are flying over, that is, the whole area that we saw

17 formally. And now all this area is strewn with mines,

18 so that one could not move on foot very much and enter

19 all the villages.

20 We are still flying over the north part of

21 the Vitez-Busovaca road, and this is still the area of

22 Pirici. But this time we're flying near the trenches.

23 It was impossible to go to this high ground at the time

24 because of the mines.

25 We are now in the upper part of Sivrino Selo,

Page 13325

1 and we are approaching, slowly, Vitez. Sivrino Selo,

2 as I mentioned, is just north of Dubravica in the

3 outskirts of Vitez, a suburb of Vitez.

4 The helicopter has now reached Stari Vitez

5 and is about to fly over the chemical plant. Here we

6 are, the first building. So this is the chemical plant

7 making explosives, and it went on working for the

8 duration of the conflict.

9 We're now approaching Gacice, which is to the

10 west of Vitez, near the chemical plant, and moving on

11 to Veceriska, also in the vicinity of Vitez. We are

12 now two kilometres from Vitez. We can see here that

13 the hills above the factory, all this area, the

14 buildings there and in Gacice were destroyed.

15 Q. Please remember, if you get a sighting of the

16 mountain road to Zenica, to stop the video and point it

17 out to us.

18 A. At the moment, we are not in the area of that

19 road. We are to the south/south-west of Vitez now, and

20 the road that you are talking about is to the

21 north/north-west.

22 We are still over the area of Gacice, close

23 to the chemical plant, and still west of Vitez. In

24 point of fact, one can see the plant on the left-hand

25 side of the screen.

Page 13326

1 We are still in Gacice, but now this is a

2 close-up and this is the north view.

3 Now we are coming into Vitez or, rather,

4 Stari Vitez, approaching Stari Vitez. We are still

5 overflying the plant.

6 Now the helicopter heads south of Vitez to

7 the area of Kruscica, but we are still close to the

8 plant; that is, still near Veceriska and Gacice. As a

9 matter of fact, this is Veceriska that we can see.

10 JUDGE MAY: We've seen quite a lot of the

11 chemical works. Maybe we can speed it up.

12 A. Yes. We are about to arrive in Kruscica.

13 MR. NICE:

14 Q. I think we're probably approaching the time

15 when the helicopter returns, and at that point we can

16 stop the video. It's possible we can accelerate it and

17 go fast-forward if the Chamber has had enough of this

18 particular passage.

19 A. There are several interesting images,

20 perhaps, and these are of the quarry which is to the

21 north-west, where there was the civilian headquarters

22 of the HVO, and also some interesting images of

23 Kruscica. But we are in Stari Vitez, and here again we

24 can get an idea of the destruction of Stari Vitez. A

25 large number of these houses have already been

Page 13327

1 repaired, or some are being repaired.

2 So we -- the helicopter is overflying Stari

3 Vitez and the area where the victims of Ahmici were

4 buried.

5 We are overflying the road which leaves

6 Vitez; that is, the road leading north of Vitez,

7 leading to Travnik. We enter Vitez from north. To the

8 right of the screen, we can see Vitez Hotel and the HVO

9 headquarters. Excuse me. On the left-hand side of the

10 screen, we see the Vitez Hotel, on the left-hand side.

11 And up in the upper part to the right is the cinema.

12 It had disappeared from the screen, but we

13 are now moving to the southern part of Vitez. And

14 there is some buildings destroyed, which are gradually

15 disappearing from the screen.

16 Now the helicopter is making a circle and

17 turning back to the northern part of the town. We

18 shall shortly see the Vitez school, and I believe we

19 will see the cinema once again.

20 Here we are there. The cultural centre was

21 to the left. We can't see it anymore. But to the left

22 at the top of the screen we see the school, and it

23 reappears on the screen on the left-hand side.

24 So we see the distance from the centre of the

25 city and the Hotel Vitez -- rather, the headquarters.

Page 13328

1 It is only about a hundred metres. This building is a

2 municipal hall of Vitez; that is, the administrative

3 centre.

4 If you could now move fast-forward. Can you

5 speed it up, please? Yes, you can slow it down now.

6 You can slow it down now.

7 We are reaching Kruscica, which is to the

8 south of Vitez. This was the zone controlled by

9 Muslims during the conflict.

10 You can fast forward now, please, again,

11 because the helicopter is about to once again fly over

12 the northern part of Vitez and the quarry in the north

13 of Vitez.

14 So the helicopter goes back to Vitez.

15 Q. Have we reached the place where the

16 helicopter is about to return?

17 A. Not yet. It will be after we overfly the

18 quarry, and I think we're about to reach it.

19 Q. Unless there's anything in the remaining film

20 that you think we should look at, we'll perhaps

21 terminate it there.

22 A. Yes. We're once again flying over the area

23 that we saw, and the only different thing which one can

24 see here is the quarry before, and it may be

25 interesting, but otherwise we do not see here any

Page 13329

1 footage of destruction.

2 Q. We'll just have a look at the quarry, because

3 it does feature in the evidence, if it doesn't take us

4 too long to get there. We didn't find anything along

5 the mountain road, but we can see in general the size

6 of the mountains to the north of Vitez.

7 As we were flying over Busovaca, I don't know

8 if you're aware of the road to Tisovac, but it was

9 barely visible, although the wooded area in which it

10 passes could be seen.

11 A. Now it crosses to Grbavica, and we are about

12 to come to the quarry. We're about to -- we can see

13 Grbavica, the village, which was destroyed, on the hill

14 which is now disappearing to the right. We see

15 destroyed houses.

16 Now we can see the quarry. Slow down,

17 please. We're some three kilometres, three and a half

18 to the north of Vitez.

19 Q. The "Nora" referred to on the screen refers

20 to what?

21 A. It is an HVO gun, an HVO cannon, and it was

22 in this area, positioned in this area, in the quarry.

23 As one comes down from the quarry, there is

24 an area which was quite -- an area where it was quite

25 possible and easy to position various artillery

Page 13330

1 pieces.

2 Now we're in the quarry. We see what it

3 looks like now, and that is rather surrounded and,

4 therefore, it offered good protection for whatever

5 materiel was there.

6 And now we're leaving the quarry. I don't

7 know if you want to follow to the end of the film.

8 We're going back to Vitez. We have the Lasva Valley in

9 front of us.

10 Q. I think --

11 JUDGE MAY: It's been ended.

12 MR. NICE: It seems to have been edited,

13 making the decision for the witness. So there we are.

14 Nothing else I want to ask of Colonel Capelle. I'm

15 grateful to him for his commentary as we've been going

16 along.

17 Cross-examined by Mr. Naumovski:

18 MR. NAUMOVSKI: [Interpretation] Thank you,

19 Your Honours.

20 Q. I have a few questions for you, Witness, of a

21 principal nature. My name is Mitko Naumovski. I'm

22 Defence attorney from Zagreb, and I am one of the

23 lawyers defending Mr. Kordic.

24 Tell me, please, how long you spent in the

25 Central Bosnia area, if you can. Approximately.

Page 13331

1 A. I did not live in Central Bosnia, but I

2 passed through the area on several occasions. I had to

3 pass through to go to the headquarters in Kiseljak, to

4 travel between Sarajevo and Kiseljak, to go to Gornji

5 Vakuf, to travel between Gornji Vakuf and Vitez, to

6 travel between Posusje, Gornji Vakuf, Vitez, Zepce. So

7 so I went through this area on a number of occasions

8 quite frequently, but I never actually stayed in

9 Central Bosnia.

10 Q. Tell us, please, do you know -- were we --

11 were you told which municipalities belonged to the area

12 of Central Bosnia?

13 A. Yes, but I didn't take notes about it. Yes.

14 I was told about the municipalities of Central Bosnia,

15 yes.

16 Q. If I understood you correctly, sir, you drew

17 up the plan for the filming but were not present when

18 the filming was done, but you did make a plan for that,

19 you did plan it all.

20 A. For this mission I was given a list of

21 villages which the investigative team should visit.

22 The time given to us was quite short, so we had to do

23 it in logical manner, to identify the co-ordinates which

24 would allow the people accompanying us, that is the

25 SFOR people, to work in convenient conditions with us,

Page 13332

1 and I acted as more of a topographer then than as an

2 historian or geographer, as you seem to indicate. I

3 was not concerned with the municipalities in which the

4 villages were situated, for instance.

5 Q. Tell us, please, who assigned this task to

6 you? Who told you what should be filmed?

7 A. I didn't make the film myself, so I wasn't

8 told what should be filmed. If I had been in the

9 helicopter, I would have made a different film, there's

10 no doubt.

11 I am not a video technician. I was simply

12 told to make a plan to cover these villages. First, to

13 inspect the villages and make a photographic report.

14 After that, I was asked to make a plan of the flight

15 over this area, which I did on a number of occasions.

16 Q. That's not what I had in mind. Perhaps I

17 wasn't precise enough. What I wanted to know is who

18 gave you a list of places to be filmed? That is what I

19 wanted to ask, in fact.

20 A. The person who provided me with the list was

21 the responsible person of the investigation working for

22 the Prosecutor, and this responsible person gave me the

23 list and told me what he wanted to do. This person was

24 in the helicopter, and that is why I saw that Ahmici

25 was overflown twice, for reasons that the investigator

Page 13333

1 himself knows. It was not something that I was told to

2 do.

3 Q. If I understood you correctly, then it was

4 somebody from the Office of the Prosecutor; is that

5 correct? Could you give us his name, please, the name

6 of that person?

7 JUDGE MAY: What does it matter,

8 Mr. Naumovski, what the name of the person was?

9 Indeed, what does it matter what the instructions

10 were? The only point of this evidence is to show us

11 what the scene was in 1996, and in the absence of any

12 visit to the area, to give us some idea of what the

13 countryside looks like. That's the only point.

14 There's nothing else to be gained from it. So whoever

15 instructed it or anything of that sort is irrelevant.

16 MR. NAUMOVSKI: [Interpretation] Yes. That is

17 precisely my next question. This was the groundwork

18 for that question that I was about to ask. So if I may

19 go ahead.

20 JUDGE MAY: [Previous translation

21 continues] ... next question.

22 MR. NAUMOVSKI: [Interpretation] Yes. That's

23 precisely what I wanted. Thank you, Your Honour.

24 Q. I noticed, Witness -- and that is why I

25 started asking you along these lines, questions along

Page 13334

1 these lines -- that a whole series of villages are

2 lacking on the film and the tape that has been played

3 to us.

4 Let me give you an example. You moved from

5 the Kiseljak municipality area, the film passes over

6 there. The last place was Svinjarevo. Then the first

7 place in the Busovaca municipality is Ocehnici. There

8 are a series of villages that are not shown, for

9 example, between Bilalovac and Kacuni. There we have a

10 series of Croatian villages, Oseliste, Gusti Grab,

11 Nezirovici, and so on. So can you, please, tell us why

12 those particular villages were not filmed?

13 A. I'm not able to tell you why those villages

14 were not filmed, because I was asked to undertake a

15 technical assignment, to prepare an itinerary for

16 people who had to make the photographs. At the level

17 of preparation, neither I, nor the video technicians,

18 nor the photographers, made the choice of villages that

19 needed to be photographed or filmed. Therefore, the

20 choice was not mine. I was given a list, and on the

21 basis of the list I made the plan.

22 JUDGE BENNOUNA: [Interpretation]

23 Mr. Naumovski, bearing in mind what has just been said

24 by my colleague Judge May, do not feel obliged to make

25 a cross-examination regardless of the situation. This

Page 13335

1 was simply a presentation of a certain number of

2 places. If you wish to add, through the Prosecutor --

3 if you think that you need to visit certain places that

4 do not appear on this film, you can mention it for the

5 record, but there is no need to extend the

6 cross-examination in an artificial way.

7 You have a technician here who carried out a

8 job assigned to him by the Prosecutor. It is up to you

9 to tell us if something is lacking, and then we can

10 proceed much more quickly.

11 MR. NAUMOVSKI: [Interpretation] I absolutely

12 agree with you, Your Honour. I just wanted to ask that

13 by way of information, not by way of a

14 cross-examination. I think that we have agreed that

15 this witness has answered precisely the question that I

16 wanted to tell the Court, and that is to say that a

17 series of places have not been included in the film.

18 So we agreed on that point, and I have just one more

19 question.

20 Q. I think, Witness, that we agree; that is to

21 say that you did not film any of the places in the

22 Travnik and Novi Travnik area. We agree on that point,

23 don't we? And those municipalities are also within the

24 composition of Central Bosnia.

25 A. That is true. I was not asked to do that. I

Page 13336

1 was not asked to plan anything on villages belonging to

2 Novi Travnik or Travnik, rather, those municipalities.

3 MR. NAUMOVSKI: [Interpretation] And my last

4 question, if I may, with Your Honours' permission.

5 Q. Witness, a moment ago you mentioned the

6 village of Bakir, between Putis and Loncari. It is a

7 very small village, a hamlet, and you said that houses

8 had been burnt there.

9 A. That is true.

10 Q. Can we agree that you, in fact, do not know

11 exactly which part of the village or which actual

12 village belongs to the Croats, where the Croats lived

13 and were the majority population or where the Muslims

14 were the majority population; that is to say, which

15 section of the village was destroyed and which was

16 not? You do not know that in precise terms, do you,

17 Witness?

18 A. No. I don't know which part of the Bakir

19 village was inhabited by Croats and which part was

20 inhabited by Muslims.

21 Q. Thank you, Witness.

22 MR. NAUMOVSKI: [Interpretation] And I thank

23 the Trial Chamber as well.

24 MR. KOVACIC: Your Honour, to be frank, I'm a

25 little bit confused. [Interpretation] If I may

Page 13337

1 continue in Croatian.

2 I seem to feel that this video has the

3 function, as Judge Bennouna has just stated, of giving

4 us a better understanding of the locality itself, the

5 one that we have been discussing here since April. And

6 so I don't know whether this is a classical

7 cross-examination, especially in view of the role of

8 the witness in this regard. But if we exclude this as

9 evidence for our client, I'd like to ask three simple

10 questions, if I may.

11 Cross-examined by Mr. Kovacic:

12 Q. The first question is: Please tell us,

13 sir -- you explained to us the signs on houses which

14 showed that something happened to houses or didn't

15 happen to them. Tell us, please, from these pictures

16 of all the houses destroyed that we have seen, are we

17 able to conclude from them at all that a house was

18 destroyed in the course of direct combat activities,

19 for example, if it was targeted by the opposite army,

20 or whether it was a criminal incident like somebody

21 planting a bomb and moving forward? So can you say,

22 for any of these cases, the reason for which this

23 house -- one particular house was destroyed?

24 A. In some cases, the causes of destruction are

25 evident for me, as a military man and as an artillery

Page 13338

1 man, and who knows rockets, anti-tank rockets, and is

2 familiar with various ammunitions. In some cases, it

3 is evident I was able to see that destruction was

4 caused by ammunition, by explosives. An example: On

5 the film that we have just seen, it is evident that the

6 minaret of the Ahmici mosque, the Lower Ahmici, that

7 the minaret was destroyed by explosives. It is true

8 that, in some cases, it would be necessary to undertake

9 a technical investigation, with the help of ballistics

10 experts and explosives experts, to know the exact cause

11 of destruction.

12 What I wanted to tell you is that in the

13 course of this mission, which took place in May 1996,

14 we saw hundreds -- I say hundreds of destroyed houses

15 in six days, and the purpose was to prepare a

16 photographic report and a film report to see the

17 destruction. In the course of that mission, we did not

18 undertake a technical study into the causes of

19 destruction.

20 Q. I understand, yes. But the circumstances

21 under which these houses were destroyed; correct?

22 A. That was not the purpose of the mission.

23 Regarding the circumstances, we would have to know --

24 we would have to have ballistic experts, experts in

25 explosives, but also to undertake a historical study, a

Page 13339

1 specific study of the events that took place in the

2 area under review.

3 Q. Witness, in determining the plan for the

4 filming, did you have the co-operation of local people

5 who could tell you that a certain village, Village X,

6 for example, and a portion of Village X is called

7 such-and-such, has a particular name, and that it is

8 not found topographically on the map under that name,

9 that they were local names given to parts of villages

10 and it is only the local people who knew that a village

11 was called in one way or another? Did you have the

12 expert co-operation of locals of this kind?

13 A. In the course of the mission in 1996, the

14 only persons who participated in the mission were

15 technicians, photo/video technicians, investigators

16 from the Office of the Prosecutor, and people from

17 SFOR, military men from SFOR. I do not think that

18 there is any doubt regarding the localisation of the

19 villages that we mentioned because, on the one hand, we

20 have detailed maps and, on the other hand, we have

21 technical means which allow us, in a very precise

22 manner, to verify the localisation of the places we

23 visited.

24 Actually, we did not use the assistance, if I

25 understood your question well, the assistance of local

Page 13340

1 people to possibly familiarise ourselves with the

2 names, but we covered the villages that are clearly

3 indicated on the maps.

4 Q. Thank you, thank you. So in determining the

5 plan, you made use of the actual names introduced on

6 the maps and which exist on the maps; is that correct?

7 A. That is correct.

8 Q. Sir, did you perhaps ever ascertain that in a

9 standard edition of the military map, main military map

10 used for the area, that there is an error, in fact,

11 which once -- and my eyes were watery when I looked at

12 it. There is, from Pirici and Vidovici, there is a

13 place there near Sivrino Selo. Did you notice?

14 A. To answer your question, I'm going to tell

15 you that if, indeed, we use the standard map for the

16 technical work, there are other aspects. There is the

17 security aspect, there's the question of access to the

18 various areas we accessed, and there were other maps

19 provided by SFOR. So I didn't rely exclusively on what

20 you call standard maps with a standard scale.

21 It may occur rarely, but it is possible that

22 certain maps have errors regarding the names of places,

23 and then they are compared with other maps drawn up by

24 other bodies in a different manner.

25 Q. Thank you. And perhaps just one more

Page 13341

1 question.

2 I think you'll agree with me that on the

3 video we did not see a single image -- and if you would

4 just like to take up the map that you had. Could you

5 look at the map that you were using? As I said, I

6 think you will agree that we did not see a single image

7 which would be more northerly to the Sadovace, Jardol,

8 Krcevine and Sivrino Selo villages, so all this is

9 parallel -- runs parallel to the main road in the Lasva

10 Valley north of Vitez, and on that line you never

11 showed us an image which was more northerly to this

12 region?

13 A. No, there were no sequences on the northern

14 slopes, as you have mentioned. The sequences covered

15 the villages on the slopes of the hills bordering the

16 Lasva Valley but certainly not the heights that you

17 have mentioned. That is correct.

18 Q. And my last question: You explained to us

19 how the project came into being, but was the link

20 mentioned in any way of the locations with the

21 positions in which the Vitez Brigade was active?

22 A. No. When we were working on this, there was

23 no question of making any military localisations. We

24 just had to cover villages and hamlets, and no

25 comparison was made regarding military deployment or

Page 13342

1 any historical events. This was a purely technical

2 undertaking.

3 MR. KOVACIC: [Interpretation] Thank you very

4 much.

5 MR. NICE: Just one thing for the witness, if

6 I may, or two.

7 Re-examined by Mr. Nice:

8 Q. You spoke of a photograph record that you

9 took as part of the same exercise. Does that record

10 still exist in library form, that is to say, all of the

11 photographs gathered together?

12 A. I didn't make any research into those

13 photographs, but I assume that they are at the disposal

14 of the Office of the Prosecutor, who were the party

15 that ordered this mission.

16 Q. And did you similarly restrict photographs to

17 the villages that were viewed from the helicopter or

18 may some of those photographs have covered other

19 villages, perhaps the villages which the Defence may

20 have an interest in?

21 A. I didn't bring here the list of all the

22 villages. I know that some of the villages we

23 inspected were not flown over by the helicopter,

24 because we had to pass through villages which need not

25 necessarily have been indicated on this videotape.

Page 13343

1 Photographic work was done parallel, and it

2 doesn't entirely coincide with the video that you saw

3 today.

4 MR. NICE: Your Honour, if Colonel Capelle

5 gives me the list and if the Defence tell me what

6 villages they have an interest in, we'll see if we can

7 find the photographs.

8 JUDGE MAY: Very well.

9 MR. NICE: I think, Colonel Capelle, the

10 position is that whoever instructed you in relation to

11 these matters, those people, in the nature of things in

12 this institution, have now been replaced by others.

13 THE WITNESS: [Interpretation] I should

14 like -- I should like to be precise regarding the last

15 question put to me regarding places north of the

16 Vitez-Busovaca road. We did not undertake a visit of

17 those villages either on the ground or by helicopter.

18 We did not cover that zone, definitely, as the Defence

19 asked. There was a problem.

20 One must know that the crest dominating the

21 Lasva Valley is what is known during the conflict as

22 the confrontation line, and that for reasons of

23 security, it was not possible to go there on foot or in

24 a vehicle because the areas were still considered by

25 some to be polluted by mines.

Page 13344

1 JUDGE MAY: Very well.

2 Colonel, thank you very much for coming and

3 giving your evidence. You are released.

4 [The witness withdrew]

5 JUDGE MAY: We will adjourn now until Monday

6 morning, half past 9.

7 --- Whereupon the hearing adjourned at

8 12.20 p.m., to be reconvened on Monday,

9 the 31st day of January, 2000,

10 at 9.30 a.m.