Tribunal Criminal Tribunal for the Former Yugoslavia

Page 14427

1 Thursday, 17 February 2000

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 9.33 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 JUDGE MAY: Yes, Mr. Nice.

9 MR. NICE: The next witness seeks limited

10 protection as set out at the foot of the second page of

11 the draft summary, and, indeed, as separately applied

12 for. He seeks face distortion and pseudonym. He does

13 so on the ground that he returns to the place of which

14 he will be speaking on a regular basis for work, more

15 significantly is planning to move back to his former

16 house with his family. His concerns are, I accept, of

17 the conventional type, and I don't have any particular

18 matters to draw to your attention beyond the fact that

19 he is returning to his house.

20 JUDGE MAY: Yes.

21 MR. NAUMOVSKI: [Interpretation] Your Honours,

22 the Defence of Mr. Kordic has nothing against these

23 protective measures.

24 MR. MIKULICIC: No objections, Your Honour.

25 JUDGE MAY: Thank you. Very well. We will

Page 14428

1 make the order as asked.

2 MR. NICE: Thank you. The only exhibit to

3 which this witness will be referring is the town map of

4 Zepce, 2284, which I'll ask to be placed on the ELMO.

5 I don't think the witness is, in fact, particularly

6 adept at dealing with maps, but I think that it will be

7 useful for pointing out some general features.

8 THE REGISTRAR: The pseudonym for the next

9 witness will be Witness AH.

10 MR. NICE: I'm sorry about the delay. The

11 former witness room for this court has now been

12 allocated to a member of the judiciary, and so the

13 witness room for this court is now the same as the

14 witness room for the small court, and it may be taking

15 the usher a little longer to find.

16 [The witness entered court]

17 JUDGE MAY: Yes. Let the witness take the

18 declaration, please.


20 [Witness answered through interpreter]

21 THE WITNESS: I solemnly declare that I will

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

23 truth.

24 Examined by Mr. Nice:

25 Q. You have been granted protection by the

Page 14429

1 Judges of this Court and will, for the purposes of your

2 evidence, be known as Witness AH.

3 Will you please look at the piece of paper

4 that the usher will give you. Don't read out the name

5 on the piece of paper, but simply say yes if that is

6 your name.

7 A. Yes.

8 Q. Witness AH, were you born in Zenica in 1972,

9 but lived your life thereafter, until the war, in

10 Zepce?

11 A. Yes.

12 MR. NICE: May the witness have on the ELMO

13 the map 2284. It may be better, actually, if the

14 witness has the one -- is that one black and white or

15 does it have blue on it? I'll hand mine in because

16 mine has actually got blue on it which helps with the

17 identification of the river. Thank you very much.

18 Q. The part of Zepce in which you lived was

19 called what?

20 A. Zenicki Put.

21 Q. Looking at the map, noticing, for example,

22 where the railway line crosses the map and where the

23 railway station can be seen, can you give a rough

24 indication, using the pointer, where Zenicki Put is.

25 A. [Indicates]

Page 14430

1 Q. Close to the railway station.

2 A. Yes, that's right.

3 Q. Did you join the Territorial Defence at the

4 start of the war?

5 A. Yes.

6 Q. How many members of the Territorial Defence

7 were usually on duty during the war, roughly?

8 A. About 50.

9 Q. How well-armed or otherwise were they?

10 A. Poorly. They weren't well-armed.

11 Q. What duties did the Territorial Defence

12 undertake in the war?

13 A. Mostly they held the points around the town,

14 access points to the town.

15 Q. Before the attack of the 24th of June, were

16 Croat families who had lived in Zenicki Put noted to be

17 moving?

18 A. Yes.

19 Q. Where were they moving to?

20 A. Mostly where there was a Croatian

21 population.

22 Q. Was there any one particular part of the town

23 that was noted for being Croatian?

24 A. There was a part of town, it was called

25 Varosiste, in the upper part of town, and that's where

Page 14431

1 the Croats mostly went, to their families.

2 Q. Can you point that to us on the map. We can

3 see something called Vasariste, which is rather similar

4 but may be different. Where is Varosiste?

5 A. Varosiste is next to the road but a little

6 further up.

7 Q. How long before the 24th of June,

8 approximately, were you aware of Croats moving?

9 A. The night before, the night before the

10 conflict.

11 Q. On the 24th of June, at what time were you

12 first aware of shooting or fighting?

13 A. In the morning, at 9.

14 Q. From which direction did the shooting come?

15 A. It came from the direction of Papratnica.

16 Q. Are you able, on the map, to point out that

17 place or the direction of that place, please? We can't

18 see it at the moment on the screen.

19 A. You can't see it on the screen, but it's

20 above Ljubna. Papratnica is above Ljubna.

21 Q. And that is therefore to the west of the town

22 of Zepce?

23 A. That's right.

24 Q. Did the resident Muslims of Zenicki Put

25 decide to attempt to defend their homes?

Page 14432

1 A. Yes, they did, they defended it.

2 Q. At that time in the morning, were you on or

3 off duty?

4 A. I was at home.

5 Q. Did you have any weapon in your possession?

6 A. No.

7 Q. To your knowledge, in turn, did the HVO have

8 troops at one or more than one location?

9 A. More than one location.

10 Q. Please list them.

11 A. The old post office, which isn't shown on the

12 map but it is below the railway station, below the

13 railway station, and the members of the military police

14 of the HVO were located there. The building of the

15 Balkan Hotel, once again this is not shown on the map,

16 but they were located -- that is to say, the HVO army

17 was located in that building as well. The members of

18 the Andrija Tadic Battalion were located in Tatat

19 Budzak.

20 Q. And Tatar Budzak is where?

21 A. Here it is, here on the map [indicates].

22 Have you found it?

23 Q. Yes, I have. Thank you. The old post

24 office, as we can see, is comparatively close to

25 Zenicki Put. To your knowledge, roughly how many

Page 14433

1 members of the military police were there, and by whom

2 were they commanded?

3 A. I don't know. About 20 of them. The

4 commander, their commander, was -- he is a native of

5 Teslic, Luka Babic.

6 Q. From your home, were you able to see

7 something of what was going on in detail, and in

8 particular were you able to see something of the family

9 of Osman Tukic?

10 A. Yes. I saw them being taken out and taken

11 off to the Lovacki Dom or hunting lodge, which is where

12 the military prison of the HVO was located, and they

13 were taken off in that direction.

14 Q. How many were there in the family?

15 A. Four family members of the Tukic family and

16 three of the Kahriman family.

17 Q. I think the Tukic family was man, wife, and

18 two sons, and Amir and Edin.

19 A. And two children. Edin, yes, that's right.

20 Q. Have any of those seven people been seen

21 since?

22 A. No.

23 Q. How long did the fighting in Zepce that

24 started on the 24th of June last?

25 A. In the old part of town, it lasted for about

Page 14434

1 seven days, whereas the settlement across from that, it

2 went on for about three months.

3 Q. In the old part of town, who won, and when

4 was there a surrender?

5 A. The HVO won in the centre of town, and there

6 was a surrender, yes.

7 Q. Do you know the date of the surrender?

8 A. The 30th of June, 1993.

9 Q. Were people killed in the fighting?

10 A. Yes.

11 Q. Which was the last area to give up

12 resistance?

13 A. The Zenicki Put area, so that they took

14 settlement by settlement and what was left was Zenicki

15 Put, and the people had stationed themselves there.

16 Q. Were a number of Muslims captured at that

17 stage and taken into detention?

18 A. Yes.

19 Q. How many?

20 A. One hundred and five.

21 Q. Were they taken to a series of places, and if

22 so, can you just give us the series without necessarily

23 finding them all on the map? Where were they taken

24 first and where subsequently?

25 A. First they were taken to the silos. The silo

Page 14435

1 isn't on the map, I can't see it on the map. After

2 that, they were taken from the silos to the hangars of

3 the Nova Trgovina, which is on the map, the new shop,

4 and the women and children were put up there.

5 When they saw that there was no room to take

6 us in, they transferred us to the PT hall of the

7 primary school, which is located in this area here

8 [indicates]. But that wasn't a gymnastics hall, it was

9 just a room, six by seven metres, where they put 105

10 people in for seven days without food, without water,

11 without anything, without any facilities at all; no

12 toilet facilities, nothing of that kind, just an

13 ordinary room.

14 And later they released us; that is to say,

15 seven days later, when it had been raining intensely,

16 they took us outside to drink some water, and we did

17 what we could on this polygon.

18 Q. What quantity of water was made available for

19 the 105 prisoners?

20 A. After five days, they gave us five litres of

21 water for the 105 individuals that were held there.

22 They gave us a canister of water. And then seven days

23 later, they let us go out, and people just drank water

24 from the ground.

25 Q. How did this period of detention for you end

Page 14436

1 or change? Where did you go from the gymnasium or from

2 the school?

3 A. We were transported to the silo.

4 Q. And how long were you detained in the silo?

5 A. I stayed there until the end of my detention,

6 until I escaped from the camp, in fact.

7 Q. Which was on what day or what month?

8 A. It was the 20th of November, 1993, up until

9 that date.

10 Q. Your detention in the silos was in what

11 accommodation?

12 A. They were cells, and the grain was loaded

13 there from the Nova Trgovina, and there would be 60

14 people to a cell. We slept on wooden pallets. There

15 were no toilet facilities or anything like that.

16 Q. How many cells altogether were occupied,

17 apart from the cell in which you were staying and

18 detained?

19 A. Ten cells.

20 Q. Do you know how many prisoners there were

21 kept in the other cells?

22 A. On an average, 60 to a cell.

23 Q. How big was each cell?

24 A. Perhaps about eight metres long and four

25 metres wide.

Page 14437

1 Q. During the detention at the silos, were those

2 detained taken to do any work for those who were

3 detaining them?

4 A. Yes.

5 Q. What work and where?

6 A. All kinds of work; digging trenches every

7 day.

8 Q. Whereabouts, if you can list the places, were

9 people taken to dig trenches?

10 A. To the front lines, Blagojevica Brdo, which

11 isn't on the map, Devila, Zovik, Varda, Kremen, and so

12 on.

13 MR. NICE: The Court will find those at

14 paragraph 13 rather than at paragraph 9.

15 Q. In the course of these forced labours, were

16 prisoners injured or killed, to your knowledge?

17 A. Yes.

18 Q. Do you know how many prisoners,

19 approximately, were killed?

20 A. Well, on an average, about a hundred people

21 were killed, perhaps more. About a hundred, maybe

22 more.

23 Q. For what period of detention were you forced

24 to dig trenches?

25 A. Throughout the time I was there, five months.

Page 14438

1 Q. Whose trenches were you digging, whose

2 positions were you digging trenches for?

3 A. Both for the HVO and for the Serbs.

4 Q. Can you explain how it came about that you

5 were digging trenches for the Serbs?

6 A. Yes, I can. Well, I don't know exactly, but

7 I think it was sometime in July that the Serbs came

8 with trucks, 110-type trucks, military ones. They

9 loaded us up 20 to a truck under the awning. We didn't

10 see where we were going, and the journey took three

11 hours.

12 We came to a place -- when we crossed the

13 Bosna River, the pontoon bridge -- between Maglaj and

14 Zavidovici, there was a pontoon bridge erected and we

15 crossed that, and we saw -- they took the tarpaulin

16 off, and we saw that it was the Serbs who were taking

17 us somewhere.

18 We continued our journey by truck towards

19 Ozren, and that's where we started digging above the

20 Serb positions. I was there for about 20 days with no

21 facilities whatsoever. We slept in some kind of

22 garage. It was a room three-by-five metres, and we

23 spent 20 days there.

24 Q. So the trenches you were digging were for the

25 Serbs at a front line between the Serbs and whom?

Page 14439

1 A. Between the BH army, towards Maglaj.

2 Q. When you were made available to the Serbs by

3 your captors, was there any suggestion that they were

4 being compelled to make you available, or did it appear

5 that this was happening by consent and agreement?

6 A. By agreement, yes. Everything was done by

7 agreement with the Serbs, the fall of Zepce and

8 everything else.

9 Q. When you'd finished your trench-digging for

10 the Serbs, where did you go? By whom were you taken?

11 A. The Serbs took us back again to the HVO

12 police, who then took us over and took us then back

13 again to the silo.

14 Q. In the course of your detention, were you

15 aware of prisoners being taken to Novi Seher.

16 A. Yes.

17 Q. Were you one of those prisoners or was this

18 something you learned of from others?

19 A. I was there.

20 Q. What happened at Novi Seher?

21 A. They took us there to work, to loot houses,

22 bring things out. We also demolished some houses which

23 were in their way, and they were taking away whatever

24 they could lay their hands on. Plundered everything,

25 set fire to things.

Page 14440

1 Q. What ethnic community, if there was an

2 ethnicity to the community, had Novi Seher been?

3 A. The centre of the town was mostly Muslim, and

4 Croats lived around that.

5 Q. Did you know whose houses you were being

6 instructed to loot? What ethnicity were the owners of

7 the houses?

8 A. Yes.

9 Q. Namely?

10 A. Muslim.

11 Q. In the course of your detention in the silos,

12 was there something that happened to somebody called

13 Jasmin, whose name you may not know in full but whose

14 position you can tell us about?

15 A. Jasmin, yes. I don't know his last name.

16 Yes, it did happen.

17 Q. Who was he? What happened to him?

18 A. He was a member of a military unit in Zepce,

19 I don't know what that was called, and what came to

20 pass to him, well, they took him out in the evening,

21 around 12, from cell number 6. He was called out,

22 "Jasmin, come out," and he did. I could not see

23 because it was nighttime, and the cells were such that

24 you couldn't really see anyone. They were very tall;

25 there were no windows or anything. They were beating

Page 14441

1 him, we could hear that, until he fell down, I believe,

2 and subsequently he succumbed to that battering,

3 because they beat him all that evening.

4 Q. And he died?

5 A. Yes. He was killed.

6 Q. Was that the only example of maltreatment at

7 night, or was there other evidence to suggest people

8 being dealt with at night in the silos?

9 A. No, that was not the only such case.

10 Q. What other examples can you give us of things

11 heard or seen at night?

12 A. Similarly, they would come in the evening

13 hours, call out, beat with whatever they could find.

14 Q. Was there an occasion before your release

15 when you were at the Previla front line, and when you

16 saw something happening --

17 A. Previla.

18 Q. -- and you saw somebody happening to somebody

19 called Senaid Mujetekic.

20 A. Mujetekic, Senaid Mujetekic, yes.

21 Q. Tell us about that.

22 A. I can, yes. We were digging trenches there.

23 There were three of us, and two of us were sent to go

24 down to the village, which was a little lower, to bring

25 some boards, wooden boards for the trenches, and when

Page 14442

1 we came back, he was lying there dead. The HVO

2 soldiers said that he was about to flee, and that was

3 how he was shot. He was hit in the back and the exit

4 wound was in his chest.

5 Q. Tell us, this front line was the front line

6 between whom and whom?

7 A. The HVO and the BH army.

8 Q. When you were taken trench-digging, what sort

9 of food, if any, were you provided with?

10 A. We were, but it was of very poor quality.

11 Two meals at times, but very poor quality.

12 Q. What sort of liquid were you provided?

13 A. Water.

14 Q. In plentiful supply or limited? Explain,

15 please.

16 A. Well, at times, it was adequate; at times, it

17 wasn't. It depended on the site that you were sent to

18 work at.

19 Q. What percentage, if you can help us, of the

20 time of your detention between July and, I think,

21 November of 1993 were you forced to work for your

22 captors?

23 A. Throughout, all those five months.

24 Q. When people died in the course of

25 trench-digging, can you explain, in general terms, how

Page 14443

1 it was that they died? What was the circumstances of

2 their being killed?

3 A. Well, mostly along the front line, as they

4 were digging trenches. Naturally, because you are in

5 front of the front line, you're digging a trench, and

6 you simply get killed, and then they say, "Well, it's

7 your own folk who killed you."

8 Q. While people were digging trenches, exposed

9 to the people on the other side, where were the captors

10 and how exposed were they?

11 A. Could you repeat the question, please?

12 Q. Yes. While you were digging trenches,

13 exposed to the risk of being killed, where were the

14 captors, the people who brought you there, either the

15 HVO or the Serbs?

16 A. They were behind us, behind our backs.

17 Q. Were they better protected than you were?

18 A. Of course they were.

19 Q. Yes. You saw something of some graves in the

20 Zepce cemetery. Tell us about that, please. Paragraph

21 9.

22 A. Yes.

23 Q. What can you tell us about that, and were

24 you, indeed, involved in some of the acts of burial?

25 A. Yes, I also participated in the burial of

Page 14444

1 people who had been killed at the front lines. Some

2 were taken to the cemetery and some were buried -- or,

3 rather, simply covered with some earth on the spot.

4 Q. Was one man, indeed, killed working beside

5 you in Pazaric?

6 A. Yes.

7 Q. Did you see his burial or not?

8 A. He was buried right there, in Pazaric.

9 Q. Very well.

10 A. No, no. At Pazaric, near Maglaj.

11 Q. Back to Zepce, how many graves did you see or

12 count in Zepce that related to people killed at the

13 front lines trench-digging?

14 A. Around 70.

15 Q. Thank you. You'll be asked some further

16 questions.

17 MR. NAUMOVSKI: [Interpretation] Thank you,

18 Your Honours.

19 Cross-examined by Mr. Naumovski:

20 Q. Witness AH, allow me to introduce myself.

21 I'm Mitko Naumovski, a lawyer from Zagreb, and I'm one

22 of the Defence team for Mr. Dario Kordic. I will now

23 ask you a few questions. However, before we begin, the

24 routine remark, will you please pause before you

25 answer, after you've heard my question, so as to give

Page 14445

1 the interpreters time to interpret.

2 Witness AH, if I understood you properly, you

3 were a member of the Territorial Defence, sometime

4 since April or May 1992; is that so?

5 A. Yes.

6 Q. And you stayed with the Territorial Defence

7 even after the 319th Mountain Brigade of the Army of

8 Bosnia-Herzegovina was founded, didn't you?

9 A. Yes.

10 Q. Was it the regular defence in the town of

11 Zepce? Because if I understand properly, it had three

12 companies.

13 A. No.

14 Q. You made a statement to the investigators on

15 the 27th of July, 1996, and then you said that after

16 the 319th Mountain Brigade was founded, the Territorial

17 Defence in Zepce was left with three companies, "and I

18 was a member of one of them."

19 A. Three companies were not in the town itself,

20 they were on the front lines against the Serbs. In the

21 town itself, there were only two units, each 50 men

22 strong, and they were simply guarding individual

23 facilities, checkpoints. But in the town, there were

24 no three companies there because the Zepce municipality

25 is not only a town. You know what a municipality is.

Page 14446

1 Q. Very well. So of those three TO companies, a

2 company of some 100 strong was stationed in the town

3 itself, wasn't it?

4 A. Yes.

5 Q. Tell me, please, will you agree with me that

6 in addition to this one TO company, in the town of

7 Zepce was also the headquarters of the so-called Green

8 Berets. We might describe it as a special unit.

9 A. Like Andrija Tadic's, is that it?

10 Q. Well, I should say, a special unit.

11 A. You mean like the one of Andrija Tadic's?

12 Q. I am asking that question, Witness AH. Will

13 you agree with me that in the town of Zepce, a Green

14 Beret unit was stationed.

15 A. Yes, that is so, but they were under the

16 army.

17 Q. But will you agree with me that their

18 headquarters was in the pensioners' home in the town?

19 A. I do.

20 Q. Will you agree with me that the command of

21 the Territorial Defence was first in the secondary

22 school and then moved over to the silo?

23 A. No, not to the silo, next to the silo, sir.

24 That was the seat of Nova Trgovina, and that is where

25 their headquarters were. The silo was kept by the HVO

Page 14447

1 because it was from the silo that the command of the BH

2 army was attacked.

3 Q. Right. But we agree that they were next

4 door.

5 A. Yes, they were next-door neighbours.

6 Q. In the town, apart from the Green Berets,

7 were there any special task forces of the army of

8 Bosnia-Herzegovina?

9 A. No.

10 Q. Witness AH, as a member of a TO company, you

11 were deployed in the town, you did not leave the town.

12 A. That is right.

13 Q. Most of the time while you were a member of

14 the TO, you manned the checkpoint at the entry to a

15 town called Carsija?

16 A. Called na petlji, yes. It was right at the

17 entry into the centre of the town.

18 Q. That was a checkpoint manned by the army of

19 Bosnia-Herzegovina.

20 A. Three members of the army were killed by the

21 HVO at that checkpoint -- no, two; one was wounded --

22 because they were bothered by that checkpoint.

23 Q. Will you allow me to ask you my questions,

24 and then the Prosecution can later on ask you some more

25 questions. We shall agree that this checkpoint was

Page 14448

1 manned by the army of Bosnia-Herzegovina.

2 A. Yes.

3 Q. Witness AH, will you agree with me that in

4 the town, and one might say in the municipality of

5 Zepce, the mistrust between the HVO and the army of

6 Bosnia-Herzegovina began to mount after the conflict

7 broke out between the Croat and Muslim population in

8 the area of Central Bosnia?

9 A. It could be, because the Croat rear was

10 protected by the Serbs. They were joined with us,

11 allied with us, and yet they were in collusion with

12 Serbs.

13 Q. But you would agree with me that the

14 provocation was not one-sided, that Muslim forces were

15 also provoking Croat forces in the town.

16 A. Well, yes, some might say that there were

17 provocations on both sides.

18 Q. I meant, in the first place, the provocations

19 caused in the town by the members of the Green Berets

20 from time to time.

21 A. Could be, but I wasn't a member of that unit

22 so I wouldn't really know, would I?

23 Q. But you must have heard about that.

24 A. Well, we've all heard this or that rumour,

25 that is quite true. I mean, everybody knew about

Page 14449

1 things.

2 Q. Very well. Thank you. So we shall agree in

3 principle, to round off this subject, that in

4 principle, in the town of Zepce, there were two armies,

5 if I may put it that way, with two separate commands.

6 A. Well, they were not really separate because

7 there was cooperation between the army of BH and the

8 HVO until shooting started. They cooperated, but a

9 third party was also involved in this matter too.

10 Q. Witness AH, that particular day, the 24th of

11 June, is the day of Sir John the Baptist, and Catholics

12 always mark it.

13 A. Sir, do you know --

14 Q. No. Will you please answer this: Are you

15 aware of that Catholic holiday?

16 A. I am. But may I tell you something?

17 Q. No, you may not. Will you please just answer

18 my questions, just let me ask you questions.

19 JUDGE MAY: Let's deal with this in an

20 orderly way. What's the relevance of the holiday,

21 Mr. Naumovski?

22 MR. NAUMOVSKI: [Interpretation] We already

23 discussed it once. I merely wanted to see whether the

24 witness was aware whether the Croat Catholics, not only

25 Croat Catholics but all Catholics, whether they mark

Page 14450

1 that particular day, whether this is a holiday.

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

3 JUDGE MAY: I want to know what the relevance

4 of this is. That's the question. Why are you asking

5 this question? What's the point of it?

6 MR. NAUMOVSKI: [Interpretation] This was an

7 introduction to my second question, who launched the

8 attack on that day.

9 JUDGE MAY: What is the relevance of the

10 question whether it's a holiday or not?

11 MR. NAUMOVSKI: [Interpretation] Because, Your

12 Honour, the Croats could not have launched an attack on

13 that day; they were attacked. They were getting ready

14 for the holiday.

15 JUDGE MAY: They were on holiday and they

16 didn't launch the attack; that's the point, is it?

17 MR. NAUMOVSKI: [Interpretation] They did not

18 launch an attack.

19 JUDGE MAY: Well, we'll put that to the

20 witness. Just don't interrupt.

21 Witness AH, you've heard it suggested that

22 the Croats were on holiday that day and didn't launch

23 the attack; is that true or not? You can deal with it

24 briefly.

25 A. No. No, that is not true. I don't know

Page 14451

1 about the holiday, but they were getting ready, the

2 Croats were getting ready for that day. Perhaps they

3 were not planning to attack on that particular day, but

4 it turned out that they did. They were digging

5 trenches in the town before the conflict, they were

6 already building up their defenses, and whatever

7 facility they held, it was surrounded by trenches. I

8 mean, there is no doubt about that. Perhaps he knows

9 because they attacked on that day. Perhaps they should

10 have attacked on a Friday, when our people go to the

11 mosque.

12 MR. NAUMOVSKI: [Interpretation] Thank you,

13 Your Honour.

14 Q. Witness AH, do you know anything, and will

15 you agree with me that on the 24th of June, 1993, that

16 situation that we talked about culminated; that is, a

17 subversive group of the BH army entered the area of

18 Gornji Papratnica, in the area of Krnak, and killed two

19 HVO soldiers there.

20 A. No, I don't know. I was at home at the

21 time. I know nothing about that.

22 Q. Do you know, perhaps -- and if you don't, of

23 course, that is an answer too -- what happened in Begov

24 Han on that same day?

25 A. No, I don't, because I wasn't up there.

Page 14452

1 Q. Very well. Thank you. Today you talked

2 about how you had organized your defence, and if I

3 understood you properly, in defending your part of

4 town, it was you, members of your company, who

5 participated, those who were on duty; that is, some 50

6 of you.

7 A. I was at home at the time. I got up at

8 around 9, and then I heard the gunfire. So

9 evidently I had to defend my home. I couldn't leave

10 it, I couldn't leave my home. I never went to attack

11 your home. I was standing by my home. Sir, I had no

12 weapons or anything. What could I defend it with; a

13 shovel?

14 Q. Right. But you will agree with me -- I'm

15 sure you will agree with me that the fighting went on

16 for almost a whole week, I mean fighting between the

17 HVO and the army of BH, for seven days in the town

18 itself.

19 A. But it went on for over three months across

20 the river.

21 Q. So since you were fighting for seven days,

22 one might infer from that that, militarily speaking,

23 you were not inferior, were you?

24 A. No. I was at home, naturally.

25 Q. But you will agree with me that the majority

Page 14453

1 of houses in Zepce were damaged during that week of

2 fighting?

3 A. Yes, and three mosques were destroyed and put

4 fire to, and I believe there is evidence to that effect

5 in -- as a matter of fact, four of them, four, during

6 the fighting.

7 Q. Tell us, please, will you agree with me that

8 those 105 men who were with you, were they all

9 able-bodied men?

10 A. No. There were also civilians over 60 years

11 old and elderly.

12 MR. NAUMOVSKI: [Interpretation] I have no

13 more questions, Your Honours. Thank you. Thank you,

14 Witness.

15 MR. MIKULICIC: [Interpretation] The Defence

16 of Mr. Cerkez has no questions for this witness, Your

17 Honours.

18 MR. NICE: About four questions arising.

19 Re-examined by Mr. Nice:

20 Q. The four mosques that were destroyed, do you

21 know if, in the course of the fighting, they were used

22 by your side as military installations? Do you know

23 how they were destroyed?

24 A. I think that mosques are not military

25 installations. We know what mosques are for; for

Page 14454

1 prayers, like any other religious buildings.

2 Q. Do you know how they were destroyed?

3 A. The one in town was set on fire, the one up

4 there near Trzanska, or was mined and ruined to the

5 ground. Just the walls are left standing. The other

6 one in Prijeko, that too was destroyed. Now it has

7 been repaired. And there is another small one in

8 Mahala, an old wooden mosque. That too was burned

9 down.

10 Q. It's been suggested to you that your side

11 started the fighting. Was there any truth in that, to

12 your knowledge?

13 A. No, no, I don't know. I know that we were

14 together with the HVO. Until the very conflict itself,

15 we were allies, until the 24th. With our neighbours,

16 we cooperated normally. Everything was fine. There

17 were no problems.

18 Q. When your neighbours left the area in which

19 you lived on the day before, was there any explanation

20 given by them for why they were doing that?

21 A. No, no, they didn't explain anything. We

22 just saw them going, taking things out. That was a

23 sufficient indication that something was in the offing,

24 but we didn't know anything.

25 Q. And in the course of the time when you were

Page 14455

1 taken out by the HVO to go trench-digging, was it ever

2 suggested to you that you were in some way the authors

3 of your own misfortune because you had started this

4 attack?

5 A. No, no one said anything like that.

6 Q. Finally, you said that the checkpoint at

7 Naputa, on the outside of the town, was of particular

8 importance and it bothered them. Can you just explain

9 what you meant by that?

10 A. They wanted it removed probably because -- I

11 don't know. We held that checkpoint because two or

12 three months before the conflict, two of our members

13 were killed at night. They were on duty, and they were

14 killed. I don't really know how. Anyway, it was at

15 night with a hand-held rocket launcher. I don't know

16 exactly.

17 MR. NICE: That's why I ask. But I note that

18 the trench-digging itself and the circumstances hasn't

19 been challenged.

20 JUDGE MAY: Witness AH, that concludes your

21 evidence. Thank you for coming to the International

22 Tribunal to give it. You are released.

23 THE WITNESS: [Interpretation] Thank you.

24 [The witness withdrew]

25 MR. NICE: There's one further witness for

Page 14456

1 this week whom Mr. Scott is dealing with at the

2 moment. I'm not sure whether the witness is yet ready

3 to start giving evidence. If not, then we can perhaps

4 deal with some of the administrative matters, but each

5 of those would also benefit from the attendance of

6 Mr. Scott, and he can always complete dealing with the

7 witness in a break, if the witness isn't ready now.

8 I've asked Mr. Scott to come, and I hope he'll be here

9 imminently, if you'll indulge me with just a few

10 minutes until he does.

11 I can tell the Chamber, while waiting, that

12 the position for next week and the witnesses is as

13 gloomy as I forecast, subject, of course, to any

14 subpoenas being answered.

15 The position is that there is one witness, I

16 think, who is going to attend. I'm just trying to find

17 the name. But it seems to me possible, with

18 cooperation, that we could take the issue of Mr. Elford

19 and his map next week, and rather than simply go into

20 the matter in the absence of the witness, the proper

21 course might be for him to come to explain who he is

22 and what he's done, in general terms, and then such

23 arguments as may follow can be addressed.

24 There's also the witness Spork, an

25 investigator, who I think will be available next week,

Page 14457

1 possibly more for Tuesday than Monday, who can give

2 evidence in relation to the Viteska Brigade exhibits,

3 in particular.

4 By bringing those two witnesses up the list,

5 we will make better use of next week and may free up

6 the following week for any other witnesses who, it may

7 be, have to be called as a result of applications made

8 and discussed today.

9 JUDGE MAY: Looking at the latest list, I

10 think, in front of us, the 4th of February, two of the

11 witnesses for next week have been called. The last

12 witness for this week, I take it, is about to come, and

13 he is number 8 on the list.

14 MR. NICE: I may be now looking at a

15 different list from Your Honour. I'm sorry about

16 that. I'll see if I can find the right list. I'm not

17 sure that I have that list with me, but --

18 JUDGE MAY: It doesn't matter. But I've got

19 a list here. Two of whom are said to be subject to

20 subpoena. One was sick and unwilling. Another one was

21 unwilling, and only two remain there. Have you, in

22 fact, got any other witnesses besides those that you've

23 mentioned to call?

24 MR. NICE: For next week, no, we've only got

25 the one at the moment. On the list, it's number 4 and

Page 14458

1 the initials are M.D., but they may be differently

2 numbered.

3 We don't, of course, know what is going to be

4 the response of witnesses to the latest subpoenas

5 issued by the Court. We can be hopeful, but we can't

6 necessarily be optimistic.

7 We've made every inquiry to try and advance

8 the dates of the witnesses of the week of the 28th, and

9 they are apparently all immovable, although we're

10 having a last try at one of them, number 2, to see if

11 he can come earlier, but so far the news is not

12 encouraging.

13 For that week, the week of the 28th, witness

14 number 3, at least on the list I have, which is

15 initials A.H., has now been discovered to have

16 particular problems. The witness lives in another

17 country. We've been notified very recently that he has

18 no travel document and is of a status that makes the

19 obtaining of a travel document for a short period of

20 time virtually impossible. Again, that matter is being

21 pursued vigorously. We've only just been informed of

22 the travel difficulties that that witness may face.

23 JUDGE MAY: Perhaps we could have an

24 up-to-date list when you can produce it, because

25 clearly I haven't got this one.

Page 14459

1 MR. NICE: Well, I'll get Ms. Bower to print

2 off the up-to-date list this morning, and then we can

3 all speak from the same document.

4 JUDGE MAY: The other matter it may be that

5 we can attend to next week is this: that we, the Trial

6 Chamber, would find it helpful in the case of the

7 transcript witnesses -- I was going to deal with this

8 when we came to it -- to know the passages in the

9 transcript upon which the parties rely.

10 MR. NICE: Yes, certainly.

11 JUDGE MAY: And that exercise will take a bit

12 of time.

13 MR. NICE: Certainly.

14 JUDGE MAY: We can possibly go through it

15 next week, both sides pointing out what it is they say

16 is important.

17 MR. NICE: That's one exercise that would be

18 very usefully done next week, and there's another that

19 I think can be done next week, which is to deal with

20 the outstanding exhibits.

21 There has been a comprehensive reply given,

22 indicating what are objected to and on what grounds,

23 and Mr. Lopez-Terres is leading the work responding to

24 that, but there are bound to be some outstanding

25 issues. Dependent on the resolution of those issues,

Page 14460

1 then there will be a witness to be called to deal with

2 production of exhibits to ask them, through us, to the

3 Court. But the first exercise is to see what's

4 properly challenged and what can be dealt with by way

5 of agreement. Probably quite a lengthy exercise, first

6 between the parties and second involving the Court, but

7 no way around it, if the Court is to have the library

8 of documents that we want it to have.

9 I'm sorry that Mr. Scott doesn't appear, as I

10 had rather hoped he would have done. It would be very

11 early to take the break now, I realize. It would be

12 very early to take the break now.

13 We could, if this wasn't too inconvenient to

14 the staff, take my ex parte, which is mostly a matter

15 of notification of developments to the Court and, to

16 some degree, a request for action, we could possibly

17 take that.

18 JUDGE MAY: Yes. Unless there are any

19 matters the Defence want to raise, that would seem a

20 sensible way of dealing with things. We'll take the ex

21 parte and then we'll take the break. So half past

22 11.00, at the earliest, we'll sit again. If some other

23 time, we'll notify you.

24 I think we've all got to rise.

25 [Trial Chamber confers]

Page 14461

1 JUDGE MAY: We will rise and we will

2 reconvene in ex parte session.

3 --- Whereupon the hearing was suspended

4 at 10.38 a.m. for an Ex Parte Hearing








12 [Ex Parte pages 14462-14477]














Page 14478

1 --- On resuming at 11.43 a.m.


3 MR. NICE: On the transcripts, I think the

4 last document that we all shared was the 24-page

5 document which had been, I think, initially prepared by

6 Mr. Scott and then made available in electronic form

7 for the Defence to put their comments on. I think

8 that's right. I think the Chamber was going to see if

9 it could find the time to look at that, rather than for

10 us going through them slavishly one by one.

11 JUDGE MAY: I'm not sure it's going to be

12 possible to do it without going through the point -- I

13 just make the few general points.

14 MR. NICE: Yes.

15 JUDGE MAY: The first is this: that of

16 course the Tulica decision dealt partly with

17 transcripts, and summarizing the finding, the holding,

18 it was that witnesses who had given evidence in this

19 trial, their transcripts could not be admitted. The

20 transcripts of those who have not given evidence was

21 held admissible, subject to a Defence application to

22 cross-examine on the ground that significant relevant

23 matter wasn't covered by the cross-examination in

24 Blaskic. So that, no doubt, is the test that we would

25 apply.

Page 14479

1 MR. NICE: Yes.

2 JUDGE MAY: There is a -- looking at the

3 Defence document, which may be a convenient one to

4 start with, there are references in some cases to

5 evidence being duplicative our cumulative. That, of

6 course, is a matter for the Trial Chamber, to determine

7 what is cumulative and what isn't, and what is

8 therefore unnecessary.

9 There are also points about admissibility

10 which, speaking for myself, I think it very often goes

11 more to questions of weight, as we have been tending to

12 rule here; objections on hearsay grounds, that sort of

13 thing.

14 I must say some evidence does seem to be

15 cumulative, and in some cases there is evidence

16 directly about the accused. And again speaking for

17 myself, it may be that those are witnesses who may have

18 to be called in due course if they give direct

19 prejudicial evidence.

20 But having said that, what course are you

21 inviting us to take?

22 MR. NICE: First of all, I think Your Honour

23 has pretty well identified the general topics that are

24 covered by the objections. There are one or two other

25 specific requirements by the Defence for documents that

Page 14480

1 may have been available to the witnesses when they were

2 giving evidence but aren't available to the Prosecution

3 now, for one reason or another; diaries and cables and

4 so on.

5 There are a couple of occasions where it

6 seems to be said that witnesses lied in evidence. I

7 haven't yet been able to go through all of those

8 chapter and verse, but the answer to that is, of

9 course, that if the lies revealed on the document

10 itself in the transcript, why, then that goes to

11 questions of weight.

12 There is a reference to two other general

13 topics as a ground for exclusion; one, the elaboration

14 of Kordic's role and, second, the absence at the time

15 of the transcribed evidence of further milinfosums that

16 are now available. But, of course, if they are now

17 available and have, indeed, been produced in evidence,

18 then their value has already been placed before the

19 Chamber and it's hard to see why it's necessary for

20 them to be gone through with other witnesses beyond the

21 witnesses with whom they've already been explored.

22 So it's our respectful submission that there

23 are no particular -- there is no particular strong

24 objection to be found in any of the generic objections

25 that are raised, and it may be that, indeed, it would

Page 14481

1 be appropriate to go through them, however unhappy an

2 exercise in one way, one by one where any objection is

3 stated.

4 Before I invite the Court, subject to any

5 observations by my friends opposite, before I invite

6 the Court to do that, we have in mind what His

7 Honour -- Your Honour, I think, said first thing this

8 morning about selecting the relevant pages to be read.

9 That will be a fairly extensive exercise, but of course

10 it will be done.

11 I think our expectation was, in any event,

12 for transcribed witnesses, that where they were going

13 to be admitted in general terms, they would be admitted

14 but the Chamber wouldn't be expected to sit down and

15 slavishly read them because the evidence would be there

16 for consideration and the parties could draw on

17 whatever passages they wanted in argument, bearing in

18 mind that each party effectively has the right to

19 comment on the other side's selection in the process of

20 written and verbal arguments made either at half-time

21 or at the end of the case. But, of course, that

22 exercise will be gone through at some stage, and if the

23 Chamber requires it to be done immediately or next

24 week, then it could certainly be done as soon as may

25 be.

Page 14482

1 JUDGE MAY: I think it would be helpful to

2 have the passages relied on. I'm not suggesting they

3 be read out but simply that reference is made to

4 them --

5 MR. NICE: Yes, sir.

6 JUDGE MAY: -- so that we know what the

7 parties say about a particular witness.

8 MR. NICE: That may be somewhat difficult

9 particularly with, say, village witnesses, where their

10 whole evidence is a narrative account, but we will, of

11 course, do whatever we can.

12 I suppose there's one other general point to

13 be made. The question of whether selected passages can

14 be relied upon is something that has occurred in

15 relation to Blaskic and his evidence, and on that we

16 see that the Defence says, at page 24, last entry,

17 "Nothing prohibits the Prosecution from calling this

18 witness live." Not, of course, something we are likely

19 to do, given the probable similarity or identity of

20 interests of the defendants in certain or many areas.

21 However, if we only wish the witness's transcript in

22 relation to, for example, the phone calls that he

23 acknowledges making and about which he was capable of

24 being cross-examined, and if it's only those passages

25 but all of them that go in, then the question of

Page 14483

1 calling the witness lies simply shouldn't arise unless,

2 on that narrow topic, there is genuinely some

3 additional cross-examination beyond the

4 cross-examination already conducted that should be made

5 and could be identified.

6 So, in short, General Blaskic falls into the

7 same category of any other witness, notwithstanding his

8 particular status, subject to the fact that, of course,

9 he's not a witness who we would want to call live and

10 expose to general cross-examination. That would be

11 quite inappropriate.

12 Having said that, I don't know if it would be

13 helpful and realistic to see how many we can get

14 through to seek the judgement of the Court on

15 outstanding objections. It's seemed to us, with

16 respect and in light of the Tulica decision, that the

17 onus is substantially on the Defence to justify, by

18 reason of identification of additional

19 cross-examination, why witnesses cannot be taken as

20 read.

21 JUDGE MAY: Yes. Is there anything the

22 Defence want to say?

23 MR. SAYERS: Just one general matter for the

24 record, Your Honour.

25 We are concerned about the impact of

Page 14484

1 wholesale import of testimony from other cases into

2 this case and its adverse impact upon the public trial,

3 if you like, given that about 40 per cent of the

4 witnesses have sought, in some form or another,

5 protective measures, and I do not think that we have

6 necessarily objected to that. But I have to say that I

7 do have a lot of concern about the wholesale

8 importation of about 48 transcripts, which by our

9 count, anyway, amount to some 12,300 pages of

10 testimony, from witnesses that the Trial Chamber will

11 never have the opportunity to see, whom our client will

12 never have the opportunity to confront, and whose

13 credibility, obviously, the Trial Chamber will have no

14 opportunity at all to assess.

15 JUDGE MAY: We have the opportunity of

16 reading the transcript and assessing -- from the

17 cross-examination or the examination, it can make an

18 assessment of credibility. What we won't have done, of

19 course, is to have seen the demeanour of the witness.

20 But that apart, it could make an assessment.

21 MR. SAYERS: Quite so, Your Honour. I

22 readily acknowledge that. But there is a certain

23 advantage to seeing the manner of delivery. That

24 doesn't require any elaboration on my part. You're

25 professional judges. You well know the advantage of

Page 14485

1 that.

2 The second point that I would like to make,

3 and I won't reiterate it, is the arguments I've already

4 made regarding the Aleksovski case, the unusual

5 circumstances that were presented in that case, the

6 indisputable probative value that the evidence was

7 found to have, and the procedural stage at which the

8 application was made in that case. I've already made

9 all those points, and there's no point in repeating

10 them.

11 Insofar as two small matters that the

12 Prosecution raised are concerned, one deals with

13 matters available to counsel in prior cases but not

14 available to us; for example, diplomatic cables

15 regarding one witness, a diary that was used in

16 redirect examination from another witness, Mr. Ashdown,

17 which we have requested. It's not been provided to

18 us. We've requested the diplomatic cables. They've

19 not been provided to us. It seems peculiar, to use a

20 fairly understated term, that material that was

21 available to the Defence which actually cross-examined

22 the witness is not available to us in order for us to

23 be able to determine whether an effective job of

24 cross-examination was done.

25 And so insofar as those witnesses are

Page 14486

1 concerned, there is an objection, and I think it's a

2 well-taken one.

3 Finally, with respect to General Blaskic's

4 testimony, I do not think that there is --

5 JUDGE MAY: He may be in a separate

6 category. We'll have to have argument on that when we

7 get to it.

8 MR. SAYERS: Yes, sir. Thank you.

9 JUDGE MAY: Yes, Mr. Mikulicic.

10 MR. MIKULICIC: [Interpretation] Your Honours,

11 as my colleague Kovacic is responsible for addressing

12 this problem and unfortunately he's not today in the

13 courtroom because we did not think that it would be on

14 the agenda, I can only more or less repeat or say

15 something along the lines of Mr. Sayers' statement.

16 If we remember how much transcripts from

17 other cases were used in the Aleksovski case, then we

18 can indeed see that those were some outstanding

19 circumstances, that is, things that were really far

20 from ordinary.

21 Here we hear that the Prosecution is

22 proposing to produce 48 transcripts. We heard our 93rd

23 witness today, and that seems to indicate, at first

24 glance already, that here we're not dealing with the

25 same circumstances as in the Aleksovski case, so that,

Page 14487

1 in principle, we do not think that it can be something

2 that would make Mr. Cerkez' Defence very happy.

3 However, of course, certain circumstances may

4 be agreed upon, but we are dealing here with details,

5 and I believe that that will be -- the discussion about

6 that is scheduled for next week and Mr. Kovacic will be

7 back here, so he will be able to tackle the issue. At

8 the moment, he is precisely very busy studying all

9 these documents.

10 JUDGE MAY: Well, this is unsatisfactory,

11 because it was made plain that we were going to discuss

12 these transcripts at a fairly early date, as I

13 recollect, and it's unsatisfactory that he is not here

14 to deal with it. Is he in The Hague or is he

15 elsewhere?

16 MR. MIKULICIC: [Interpretation] Mr. Kovacic

17 is in his office here, and he could be here in 15

18 minutes' time. So if you so decide, he can be here in

19 the afternoon and say what he has to say.

20 [Trial Chamber confers]

21 JUDGE MAY: Mr. Scott, I think the position

22 is you're not ready with your witness, are you,

23 because --

24 MR. SCOTT: Unfortunately, Your Honour,

25 almost but not quite.

Page 14488

1 THE INTERPRETER: Mr. Scott, microphone,

2 please.

3 JUDGE MAY: Yes, thank you.

4 [Trial Chamber confers]

5 MR. SCOTT: Your Honour, if I can make one

6 suggestion that might help.

7 Of course, there is a number of these

8 witnesses who have no bearing on Mr. Cerkez at all; for

9 instance, witnesses from Kiseljak would have absolutely

10 no bearing on the case against Mr. Cerkez, or Vares,

11 for that matter.

12 JUDGE MAY: There are some cases where he

13 apparently has no objection.

14 MR. SCOTT: That's correct.

15 JUDGE MAY: It may be that we could look at

16 those. Let's try and get some, at least, out of the

17 way.

18 The witnesses where there are no objections,

19 as I understand it, are 5 and 6.

20 MR. NICE: Number 16, I think, may come

21 next.

22 JUDGE MAY: Number 16.

23 MR. NICE: Number 23.

24 MR. SCOTT: Number 22.

25 MR. NICE: Number 22, I beg your pardon, and

Page 14489

1 43.

2 JUDGE MAY: Yes. I also, reading the

3 document, found that there were other areas where there

4 was apparently no objection. That was on behalf of

5 Mr. Kordic. Number 25, 29, 34, and 39. What we could

6 do is this: We can deal with some of the matters on

7 which apparently there is no objection on behalf of

8 Mr. Cerkez, and, Mr. Mikulicic, would you please have

9 Mr. Kovacic here at 2.30 so that we can go through

10 the -- or soon thereafter so that we can have his input

11 into the matter.

12 MR. NICE: Your Honour, one other point to

13 make. I entirely agree with Mr. Sayers that we must

14 not overlook the needs for a public hearing so far as

15 possible. The Court made reference to that this

16 morning. I'm sure that once transcripts are -- it's

17 decided what transcripts are in, a summary of the

18 material can be read in to the record quite shortly, if

19 that would be appropriate --

20 JUDGE MAY: Yes.

21 MR. NICE: -- and, of course, arguments and

22 judgements, insofar as they rely on witnesses, can,

23 subject to measures of protection, give chapter and

24 verse.

25 [Trial Chamber confers].

Page 14490

1 JUDGE MAY: Well, the position is

2 unsatisfactory. We will do what we can without

3 Mr. Kovacic. I mentioned, and Judge Bennouna mentions

4 to me that it may be sensible to look at this matter

5 from the point of view of categories. I've mentioned

6 various categories.

7 THE INTERPRETER: Microphone, please.

8 JUDGE MAY: I'm not on-air. I've mentioned

9 various categories, and Judge Bennouna points out that

10 it may be helpful to look at some of these transcripts

11 in terms of categories. We'd be sensible to look, at

12 least to start with, at some of those where it appears

13 that Mr. Cerkez has no objection, but on behalf of

14 Mr. Kordic there is an objection.

15 I have in mind number 3, Mr. Ashdown, who

16 gives evidence about a conversation with Dr. Tudjman.

17 The objection is, apparently, that it was a

18 conversation when drink had been taken at a dinner. I

19 recollect at the time that the evidence was given that

20 it got some publicity, and there was extensive

21 cross-examination on precisely this point, as to how

22 much they'd had to drink. Now, what weight we give to

23 it is a matter for us, but the matter was covered in

24 cross-examination. And then there's a reference to a

25 diary. Again, that's a matter for weight, isn't it?

Page 14491

1 MR. SAYERS: If I can articulate Mr. Kordic's

2 position. Actually, it should be a conditional

3 objection. The only thing that we wanted to see was

4 what was produced to Defence counsel in the Blaskic

5 case, and it may well be that upon review of the diary,

6 Your Honour, the objection would be withdrawn. But we

7 felt that we had to make the objection, since some

8 material was available to Defence counsel in the

9 Blaskic case which has not been made available to us,

10 and that's really the position, simply stated.

11 JUDGE MAY: Where is the diary?

12 MR. NICE: The diary wasn't made an exhibit.

13 We've made every effort to see if we can find a copy of

14 it here in the building. We've not been able to do

15 that. If the diary has any particular significance, no

16 doubt it will have been referred to in argument in

17 Blaskic and/or will appear in the judgement, if it's

18 got any significance. We will continue to try and find

19 a copy of the diary, if one exists here. We've,

20 indeed, I think, asked assistance already through one

21 of the ministries in London. If it's produced, it can

22 be made available, and we would, of course, have no

23 objection to any reliance by the Defence on what may

24 emerge in any judgement in Blaskic in relation to this

25 topic.

Page 14492

1 While I'm on my feet, and I think Mr. Scott

2 and I will deal with them some and some, can I

3 respectfully invite the Chamber to consider this as the

4 solution or a solution to the public hearing point: If

5 and when the Chamber decides that a transcript is to be

6 taken in evidence, it may be that the existing short

7 summary on the left-hand side could simply be read,

8 because we're in public session, to identify the

9 witness and the general topic covered, and if the

10 summary given there isn't sufficient, then a further

11 summary could be read, but it may well be in most cases

12 that that summary would take care of the problem. It

13 would let the public know the general category of

14 material being relied upon, subject to chapter and

15 verse being spoken of later.

16 JUDGE MAY: Very well. Four is the next one,

17 the inhabitant of Gomionica. The objection appears to

18 be that he gave inconsistent testimony and that he

19 testified to a sniper attack without any personal

20 knowledge.

21 Again, at first blush, it appears to me that

22 those are matters entirely within the Trial Chamber's

23 ability to deal with. A point was obviously made in

24 the transcript, and it's a matter for argument. But

25 I'll hear what anybody says about that.

Page 14493

1 MR. SAYERS: I do not have any further

2 argument, Your Honour. I think it's a matter for the

3 Court.

4 JUDGE MAY: Yes. Thank you. Number 5,

5 there's no objection. Number 6, there's no objection.

6 Number 7, again, no objection on behalf of Mr. Cerkez.

7 This is a witness from Rotilj. Again, the objection is

8 that the testimony is inconsistent, and a point is made

9 about the timing of some words which were seen

10 written.

11 Again, is there anything to be added to

12 that?

13 MR. SAYERS: Just the point under the basis

14 for the objection, Your Honour, and that is that not

15 all of the exhibits referred to in the transcript have

16 been provided to Defence counsel in this case. It

17 seems to me that just in view of fundamental fairness,

18 in order to be able to evaluate the whole impact of the

19 testimony, we should be entitled to see the exhibits.

20 That's all.

21 JUDGE MAY: What's the Prosecution's position

22 with regard to the exhibits?

23 MR. SCOTT: Your Honour, I have not -- I have

24 to say that, in fairness, I have not looked at those

25 two exhibits that are referenced here, if I understand

Page 14494

1 well, D122 and D123, which were apparently Defence

2 Exhibits. As a matter of principle, I wouldn't think

3 we would have a general objection with those being

4 disclosed, subject to whatever protections they may

5 have been given from the earlier case and again, Your

6 Honour, with the proviso that I have not specifically

7 seen them recently.

8 JUDGE MAY: I notice that the same point may

9 be made in relation to the next witness.

10 MR. SCOTT: Yes, 372, I suppose. Again, I

11 have no reason to object to that. I'm sure that that

12 was apparently a Prosecution exhibit, and there again,

13 Your Honour, I have no reason to think that we would

14 have reason not to disclose that.

15 JUDGE MAY: Very well.

16 Anything further you want to say about

17 number 8?

18 MR. SAYERS: No, Your Honour.

19 JUDGE MAY: Thank you.

20 Number 9, I understand, is no longer relied

21 on. Number 10, now, this is one of the witnesses who

22 does give direct evidence about Mr. Kordic; speaks of

23 close contact between Colonel Blaskic and Mr. Kordic

24 and other individuals, as well as the special purpose

25 units. It's pointed out there's no objection from

Page 14495

1 Mr. Kordic but there is an objection in relation to

2 Mr. Cerkez.

3 What's the position here?

4 MR. SAYERS: With respect to Mr. Kordic, Your

5 Honour, as you can see, we do not object to the

6 testimony of this witness; indeed, we think the witness

7 gives significant testimony. But we do object to the

8 summary, and that's the problem. The last sentence is

9 just not accurate.

10 JUDGE MAY: Well, that's a separate matter.

11 MR. SAYERS: Yes.

12 JUDGE MAY: If it were to be read out, of

13 course, it would have to be accurate. But at the

14 moment, it doesn't matter.

15 MR. SAYERS: Yes.

16 JUDGE MAY: But there is an objection,

17 apparently, in relation to Mr. Cerkez. Although

18 Mr. Kovacic isn't here, what is the Prosecution

19 position about this witness?

20 MR. NICE: In relation to number 10, the

21 Cerkez objection is -- I'm sorry. I missed the point,

22 because my form still says "no objection" -- oh, I see,

23 yes, it does. I was just reading it.

24 It's possible that we could delete the Cerkez

25 passages if they are challenged and let the balance go

Page 14496

1 in.

2 JUDGE MAY: Yes. Well, perhaps you could

3 talk to Mr. Kovacic about that.

4 MR. NICE: Yes. Alternatively, we could come

5 to some other compromise on that issue, yes. I'm sorry

6 to be misreading the document; my mistake.

7 JUDGE MAY: Number 11, the objection seems to

8 be that it concerns events outside the period of the

9 indictment and is irrelevant. Well, again, that's a

10 matter of admissibility, isn't it?

11 MR. SAYERS: Absolutely, Your Honour. I

12 think that's within the province of the Court to decide

13 whether that should be admissible or not.

14 JUDGE MAY: Number 12, we don't have

15 Mr. Kovacic's position. There's a query about the

16 credibility. Well, that's a matter, again, which we

17 can weigh or not. But I see, according to the summary,

18 this witness gives some direct evidence about these

19 two, the two accused.

20 Does anyone wish to say anything about that?

21 MR. NICE: It doesn't appear from the

22 objections made that there's necessarily any challenge

23 to the evidence about the accused. In those

24 circumstances, there is no ground for believing there's

25 additional cross-examination required, because the

Page 14497

1 other matters, insofar as they are made out, are

2 matters of weight.

3 MR. SAYERS: Speaking for Mr. Kordic's

4 Defence, all of this witness's testimony is

5 challenged.

6 JUDGE MAY: Yes. This witness was the

7 commander of the Territorial Defence in Vitez, so

8 clearly a significant participant in events. Speaking

9 for myself, this is the sort of witness who I think

10 maybe should be called.

11 Let me just say something to the legal

12 officer.

13 [Judge May confers with legal officer]

14 JUDGE MAY: Number 13?

15 MR. NICE: Number 13 is one of the witnesses

16 I think we've deleted.

17 JUDGE MAY: Number 13 is deleted, is it?

18 MR. NICE: Yes. Likewise, 14.

19 Your Honour, before we move on, which I think

20 we're going to be moving on to 15, I should tell you

21 that so far as number 12 is concerned, our last

22 understanding was that he is probably not willing to

23 cooperate any further with this Tribunal, although he

24 gave evidence in Blaskic, and therefore he may have to

25 be added to another list for an application in another

Page 14498

1 way. But --


3 MR. NICE: -- we'll deal with that when we

4 establish the final position of these witnesses. There

5 may be applications for subpoenas, and we'll have to

6 see what happens.

7 JUDGE MAY: Very well. Number 15, no

8 objection on behalf of Mr. Cerkez; objection on

9 Mr. Kordic's part. A substantial portion of closed

10 session testimony has not been disclosed to the

11 Defence.

12 MR. NICE: I understand that material was

13 served yesterday.

14 MR. SAYERS: I have not had the opportunity

15 to review it, but we'd be more than happy to provide

16 the Trial Chamber with our updated position tomorrow

17 morning, if that's acceptable.

18 JUDGE MAY: Thank you.

19 Number 16, no objection. Number 17, no

20 objection from Mr. Cerkez. This is the description of

21 an attack on Svinjarevo on the 18th of April; this is

22 then a village witness. Objection is made to the

23 inconsistent testimony and the weight to be attached to

24 the evidence. More significant, again, no closed

25 session testimony received or all the exhibits.

Page 14499

1 Can the Prosecution help with that, please?

2 MR. SCOTT: Yes, Your Honour, we can provide

3 those items listed in those two columns of the chart.

4 JUDGE MAY: Can you do that today or --

5 MR. SCOTT: I would think so, Your Honour,

6 yes.

7 JUDGE MAY: -- over the next 24 hours,

8 please.

9 Number 18, this is a witness again about the

10 fighting in the Vitez area. It's a BritBat witness.

11 There is a question about the relevance; again, that's

12 a matter for the Trial Chamber. Also about its

13 probative value; again, for the Trial Chamber.

14 Important videotape evidence, it says, requires direct

15 questioning.

16 Can you assist, Mr. Sayers? Is there

17 anything else you want to add to that?

18 MR. SAYERS: I believe the videotape was

19 actually taken in Ahmici on the 16th of April, as the

20 British Battalion units were patrolling not just one

21 part of the village, as has been testified to by

22 several witnesses, but actually all over the village;

23 the lower part, the upper part, all along the road that

24 joins the lower part and the upper part. I think that

25 this witness could throw some light upon the progress

Page 14500

1 of the fighting that actually took place in the village

2 on that day.

3 I would also point out that, as the Trial

4 Chamber obviously knows, it's been difficult for us to

5 determine exactly what happened in Ahmici, and I know

6 that it's been the subject of extensive findings in

7 other cases and discussions in other cases, but I think

8 the final chapter on what actually happened in that

9 village on that day has yet to be written, and it's

10 important for us to be able to conduct some examination

11 of the people who were actually there and who actually

12 saw the fighting. Unless my memory fails me at this

13 point, I do not believe that anybody has actually

14 testified to that in this Trial Chamber to date. So

15 this would be one witness, not necessarily the best

16 witness, but really one witness who could throw some

17 light on that subject.

18 I would also point out, Your Honour, that

19 many of the witnesses testified to the same thing, and

20 there comes a point at which the additional probative

21 value of cumulative testimony is really approaching

22 zero.

23 JUDGE MAY: That's, I think, again for the

24 Trial Chamber to decide.

25 This videotape, did this witness produce it,

Page 14501

1 or is it a totally separate document, exhibit, which

2 you would like to ask him some questions about?

3 MR. SAYERS: Yes. Dredging the recesses of

4 my memory, I think that he did produce it, that the

5 videotape footage was actually shot by him, or soldiers

6 under his command.

7 JUDGE MAY: Moving on to number 19, another

8 BritBat witness, what does this witness add? The point

9 is made that it's cumulative. What would he add?

10 MR. SCOTT: Just one moment, Your Honour.

11 [Prosecution counsel confer]

12 MR. SCOTT: Your Honour, I will have to defer

13 somewhat to Mr. Lopez-Terres on this, but this one we

14 think is -- when we reviewed these again, at the

15 Court's request, and when we eliminated four --

16 actually, more than four ultimately, there are aspects

17 of this witness's -- it doesn't go just to Ahmici,

18 which everyone is quick to say there's plenty of

19 evidence perhaps, but to other areas of the Vitez

20 municipality and Stari Vitez.

21 Frankly, Your Honour, it's not sufficient for

22 the Defence to say on some of these witnesses that the

23 evidence is just entirely cumulative, because obviously

24 sometimes that varies from village to village. And

25 based on our second review, we felt that this

Page 14502

1 additional testimony was needed.

2 JUDGE MAY: Very well. Similarly, number 20,

3 and presumably the same arguments apply, 19 and 20. We

4 can see what the --

5 MR. SAYERS: With respect to witness number

6 20, Your Honour, I do recall reading this witness's

7 testimony, and there really isn't anything upon which

8 Major Hunter throws any additional light that hasn't

9 been testified to by many witnesses in this case.

10 It seems that the principal -- at least

11 speculating for the Prosecution's reason why he would

12 be included, the principal reason would be to throw

13 some light upon what happened at Stupni Do, but we've

14 already heard from at least two witnesses who were

15 present at, I think, the security checkpoint that seems

16 to be referred to at the end of this summary. So I

17 don't really think that he adds anything at all,

18 subject to being corrected by the Prosecution,

19 obviously.

20 MR. NICE: He may fall into a different

21 category from the witness before, who does, indeed,

22 provide a lot of detail, some of which may not be

23 duplicated elsewhere, and unless either of my learned

24 friends draws my attention to something that's

25 additional, Mr. Sayers' point might be valid,

Page 14503

1 particularly bearing in mind that there's going to be,

2 I hope, another witness on Stupni Do who's coming the

3 week after next and who's going to deal with matters

4 relating to Vares and, to some degree, to Stupni Do in

5 rather more detail.

6 JUDGE MAY: So for the moment, we can strike

7 that one out.

8 MR. NICE: I think that we could concede that

9 that one could go, yes, for the moment.

10 JUDGE MAY: Number 21, this witness speaks of

11 Mr. Kordic coming to inspect the prisoners. The

12 Defence say they want to cross-examine about that.

13 MR. SAYERS: To be specific with respect to

14 this witness, Your Honour, the implication, I think,

15 emerges from the summary that Mr. -- well, it's not

16 clear from the witness's testimony, but it's the

17 Kiseljak barracks that this witness is talking about.

18 I think, as we read his testimony, he implies that

19 Mr. Kordic was seen supposedly in the Kaonik facility,

20 but we contest that. We think that's not correct, and

21 we think the witness was actually detained for a short

22 time in the police station actually in Busovaca, not in

23 the Kaonik barracks. So that's what we would seek to

24 elucidate with this witness on cross-examination, and

25 it has, I suppose, some significance on those issues.

Page 14504

1 MR. NICE: Your Honour, if that's the narrow

2 issue between the parties, it may be that we can

3 negotiate an excision of the relevant part of the

4 evidence, particularly if, as I believe the position

5 is, this witness may now be an unwilling witness. So

6 perhaps we can arrange to negotiate with that one.

7 JUDGE MAY: And with Mr. Kovacic too.

8 MR. NICE: Yes, and then the balance may be

9 admitted, subject to the excision of that or correction

10 of it.

11 JUDGE MAY: Number 22, there seems to be

12 agreement. Number 23, an attack on -- a village

13 witness again, an attack on Gromiljak. A point is

14 taken about the testimony about the number of people

15 having died and said that there is no basis for it.

16 Again, this is a weight point, isn't it,

17 admissibility/weight?

18 MR. SAYERS: Yes, Your Honour, it is.

19 JUDGE MAY: And again it's a village

20 witness.

21 Number 24, the objection here is, from

22 Mr. Kordic, is that this is an expert and should be

23 subject to the expert procedure. Has the Prosecution

24 got anything to say about that?

25 MR. NICE: I think we are more concerned to

Page 14505

1 have the value of his evidence on factual findings

2 about destruction of religious properties rather more

3 than to rely on any reliance and dependence on

4 expertise, and it may be possible to negotiate an

5 agreement about that. But I see the objection is very

6 wide-ranging. Perhaps it would be helpful to hear what

7 the full scope of the objection is.

8 MR. SAYERS: Speaking for Mr. Kordic, Your

9 Honour, we really question the incremental utility of

10 yet more expert testimony in this case on points which

11 seem to be, at least to me, peripheral in a case which

12 is a war crimes case, essentially.

13 He did testify as an expert in Blaskic, I

14 believe, and now the Prosecution says that his factual

15 testimony is all mixed in with the expert testimony. I

16 don't know how you would go about separating one from

17 the other, in all candour.

18 We do point out if he is an expert, then the

19 Rules address how expert testimony is to be put on,

20 should the Court deem it to be necessary, which we do

21 not believe it to be, and we would merely point out

22 that there has been noncompliance with the applicable

23 Rule, 94 bis.

24 Thank you.

25 MR. NICE: Perhaps I could just add to that

Page 14506

1 one or two things.

2 The Chamber has itself, in its Tulica

3 decision, made clear that it's able, with material, to

4 distinguish between conclusions and factual findings.

5 It will remember in relation to the reports that it

6 allowed in on post-mortems and whatever it was that

7 said, "Well, insofar as the report is based on

8 judgement, we will disregard it, we will just look at

9 it for the factual findings," and it may be possible to

10 take the same approach in relation to this. There is,

11 I think, no other expert evidence on this topic that

12 we've presented.

13 The Chamber will recall the line between

14 expertise and non-expertise delineated by the Defence

15 in relation to Mr. Cigar, and it may well be that a

16 great deal of his evidence on that test would fall the

17 factual side of expertise.

18 I'm reminded, I'm sorry, to rise again.

19 According to my friend, his evidence was

20 simply in the form of an UNESCO report rather than as

21 expert testimony. Whether he was formerly categorized

22 as an expert or not, I'm not sure. So it may be

23 another case of the Defence asserting that someone is

24 an expert when, in fact, he gave evidence in fact.

25 We'll have to check that.

Page 14507

1 JUDGE MAY: Number 25, a detainee in Vitez.

2 No objection from Mr. Sayers. We'll check the position

3 with Mr. Kovacic.

4 Number 26 gives direct evidence apparently

5 about Mr. Kordic. Now, having said what I have about

6 that, what is the Prosecution position about this

7 witness?

8 MR. NICE: I'm not sure that there's any

9 expressed challenge to the evidence, which is what she

10 saw of him and how he was portrayed and what her belief

11 was. The objection seems to be, in part, to the

12 summary and relates to something under the

13 cross-examination of Mr. Nobilo that I'm afraid I don't

14 fully understand.

15 JUDGE MAY: The objection apparently is to

16 the cross-examination. That may be a matter which you

17 could discuss.

18 MR. NICE: Yes, certainly.

19 JUDGE MAY: Number 27 is another BritBat

20 witness. Again, is that adding anything to what we've

21 already heard?

22 MR. SCOTT: Your Honour, I can only respond

23 again generally. Our list is now the product of two

24 separate reviews, and it was our judgement that there

25 were details on items that were good reasons for

Page 14508

1 including the witness's transcript. In all honesty, I

2 can't stand here and tell you exactly what those

3 details were now, but this list is the product of at

4 least two separate reviews in which we did eliminate

5 some transcripts.

6 JUDGE MAY: Number 28, what is the objection

7 here, Mr. Sayers? Number 28.

8 MR. SAYERS: This witness, Your Honour,

9 testified for about five days relatively early on in

10 the Blaskic case, and a huge quantity of ECMM documents

11 that apparently was not available to the Blaskic

12 Defence has now become available in this case, although

13 obviously not all of them. But nonetheless, the

14 documents that have come available would enable us to

15 test this witness's recollection and version of certain

16 things.

17 I would point out that this witness -- I

18 don't know whether the Court has it in mind, but this

19 witness gave a witness statement that spoke, for

20 example, to the Zenica shelling on the 19th of April,

21 and the chronology of events recited in his statement

22 is substantially at odds with the testimony of others,

23 and we would propose to cross-examine him about that.

24 But this is a witness who pretty much spans

25 the spectrum and gives evidence that's specific to

Page 14509

1 Mr. Kordic as well, and we would like to cross-examine

2 him about that.

3 MR. NICE: Although our original intention

4 was to have him dealt with by way of transcript, and if

5 appropriate, he still could be. We have, in fact,

6 listed him as a witness for the last week of the case,

7 in light of the Defence objection, and I believe he's

8 available. I'm not sure. We would take him, I have to

9 say, as shortly as we possibly and sensibly can, but he

10 is currently listed to attend.

11 JUDGE MAY: Number 29, no objection as far as

12 Mr. Kordic is concerned. We have yet to hear from

13 Mr. Kovacic. Perhaps, Mr. Nice, it would be helpful if

14 during the adjournment you had a chance to talk to

15 Mr. Kovacic about this to see what remains in dispute.

16 MR. NICE: Certainly. I'll perhaps meet him

17 here, if I possibly can, about half an hour before we

18 sit.

19 JUDGE MAY: Number 30, objection that it's

20 cumulative.

21 MR. SAYERS: Yes, Your Honour. As far as I

22 can see, this witness adds absolutely nothing to the

23 numerous witnesses who have already testified and

24 Colonel Landry, who apparently is going to testify, who

25 works for the same organization and his testimony

Page 14510

1 covers precisely the same things in the same periods.

2 So it absolutely escapes me, why this testimony would

3 be necessary or what point upon which it is offered to

4 prove. I really don't know.

5 JUDGE MAY: Number 31, what's the objection

6 there? You say his evidence is inconsistent with other

7 evidence. You can point that out.

8 MR. SAYERS: That's correct, Your Honour. I

9 think that's the sum and substance of our position, and

10 there's no point in beating a dead horse. Thank you.

11 JUDGE MAY: Yes. Number 32, I'm not sure I

12 follow quite what's happening with 32. It's described

13 in the Defence document as "OTP error." Is this still

14 a witness?

15 MR. SAYERS: Yes, it is, Your Honour. The

16 summary was actually for another witness, I think,

17 Mr. Mladen Veseljak. We have objected because we have

18 not been supplied with closed-session testimony and

19 some exhibits. I believe the Prosecution, some days

20 ago, did supply us with those missing items that were

21 referred to in this document, and accordingly we would

22 like to change the objection to no objection.

23 MR. NICE: We were prepared to delete this

24 one. That's why I'm standing.

25 JUDGE MAY: You were prepared to delete it?

Page 14511

1 MR. NICE: Yes.

2 JUDGE MAY: Very well. If you are prepared

3 to delete it, then let us.

4 MR. NICE: And likewise 33, because that

5 topic is going to be covered by someone else.

6 JUDGE MAY: Number 34, there's no objection

7 as far as Mr. Kordic is concerned. We need to hear

8 from Mr. Kovacic. Again, it might be helpful if the

9 Prosecution might negotiate and see what the position

10 is there.

11 Number 35 is another BritBat witness.

12 Objection is made about the cumulative nature of that.

13 Again, I take it there's nothing to add to that.

14 MR. SCOTT: Your Honour, we just add on that

15 particular item, and again I just caution -- if the

16 Court will allow me just to caution the Court a bit on

17 these because again there may be arguably -- there may

18 be some argument about conceding the ultimate position

19 about cumulative on some items but not entirely. For

20 instance, this is not only about Ahmici but it touches

21 upon Stari Vitez and Donja Veceriska, about both of

22 whom, in the Prosecution's views, there's substantially

23 less evidence in the record currently than on some of

24 the other items. So I would just caution the Court not

25 to throw the cumulative net too broadly.

Page 14512

1 JUDGE MAY: Number 36, the position seems to

2 be there is now an objection where there wasn't

3 before. The summary refers to some direct evidence

4 against Mr. Kordic. Anything you want to say about

5 that, Mr. Sayers?

6 MR. SAYERS: I regret to say, Your Honour, I

7 was not the attorney that reviewed the testimony of

8 this witness, and the attorney who did review it is now

9 in the United States, Mr. Stein. But I do recall

10 discussing with him the fact that this witness does

11 give testimony that's specific as to Mr. Kordic, about

12 a television program that supposedly this witness saw

13 the night before. But we -- like many of these

14 recollections of events many, many years ago, there is

15 no videotape of this apparently, and apparently the

16 witness gave inconsistent versions of it on

17 cross-examination from those which she had testified to

18 on direct.

19 Other than that, I can't really -- I'm not in

20 a position to add anything beyond what's stated in our

21 papers here.

22 MR. NICE: Your Honour, on that, the

23 inconsistency goes to weight and it's available to the

24 Defence to argue that the evidence would be valuable on

25 the general topic of what Mr. Kordic said on the

Page 14513

1 television the night before and thereabouts. It's

2 unlikely that there's going to be any difference in her

3 overall position were she to come live. There's no

4 specific challenge to the evidence, and this is really

5 a question of weight, whether the Chamber will be able

6 to be addressed, if so advised, by parties on one side

7 and the other as to the totality of her evidence.

8 JUDGE MAY: Number 37, I think, is another

9 witness from the villages, using that term loosely.

10 We've got all the arguments except that that

11 closed-session testimony is missing. Again, is that

12 provided, to be provided?

13 MR. SCOTT: Yes, Your Honour.

14 MR. NICE: I'm informed by --

15 THE INTERPRETER: Microphone, Mr. Nice.

16 MR. NICE: I'm informed by Ms. Verhaag that

17 all the closed-session testimony was provided

18 yesterday, although, of course, they may not have had a

19 chance yet to consider it. There may be some

20 outstanding closed-session exhibits.

21 Can I endorse what Mr. Scott said about the

22 approach to the village witnesses. We haven't yet gone

23 through the exercise with these witnesses of

24 identifying precisely where there's a village that may,

25 for example, be overlooked. Some of the villages are

Page 14514

1 very small, we know that, but they are specified in the

2 indictment and it's obviously important for us to

3 ensure that in the interests of the overall case and,

4 indeed, in the interests of the people living there,

5 that all the individual places which can be identified

6 as being attacked are the subject of appropriate

7 evidence.

8 JUDGE MAY: Number 38, was this a witness who

9 you were going to call?

10 MR. NICE: Yes, this was the one who I was

11 going to call and said I wasn't going to call a week or

12 so ago. He adds to the general picture, but he does

13 give -- and I think he's the only person to give

14 evidence, over at page 19 of the schedule, he's the

15 only person I think to give evidence on the village of

16 Kazagici. It may well be that that is not challenged,

17 and it's for that reason that his evidence would be

18 required.

19 JUDGE MAY: Well, is that a matter which you

20 could discuss?

21 MR. SAYERS: I see no reason why that should

22 not be discussed, but I do want to draw the Court's

23 attention to the last point on our objections, which is

24 that he testified in Blaskic to a meeting with

25 Mr. Kordic, and that's inconsistent with the witness

Page 14515

1 statement that he gave to the Prosecution's

2 investigators, and it would be that upon which we would

3 request cross-examination. If that can be excised from

4 the transcript, then we may reconsider our position

5 relating to this witness.

6 MR. NICE: My recollection of that account of

7 the meeting is that it's not particularly significant

8 one way or the other and probably can be excised.

9 JUDGE MAY: Very well. To be discussed.

10 Number 39, no objection as far as Mr. Kordic

11 is concerned; we have yet to hear -- again, if you

12 could ask Mr. Kovacic, please, about this, Mr. Nice.

13 MR. NICE: Yes, certainly.

14 JUDGE MAY: Number 40, no objection on behalf

15 of Mr. Cerkez. It's another village witness. Comments

16 are made about the reliability of the evidence.

17 MR. NICE: It's a matter of weight, and again

18 this relates specifically to the attack on Visnjica and

19 may be important for that reason.

20 JUDGE MAY: Likewise, 41. Number 42, another

21 witness about the villages.

22 MR. NICE: Number 42, we've, I think,

23 deleted.

24 JUDGE MAY: Yes.

25 MR. NICE: Number 41 doesn't appear to be the

Page 14516

1 subject of any specific outstanding challenge, and

2 inconsistencies are a matter of weight, if there are

3 such inconsistencies.

4 JUDGE MAY: Number 42 is deleted?

5 MR. NICE: Yes.

6 JUDGE MAY: Number 43, there's no objection.

7 Number 44?

8 MR. NICE: It's an Ahmici-describing

9 witness. I think I probably better defer to the

10 Defence who will explain their position.

11 MR. SAYERS: This is a potentially important

12 witness relating to what actually happened in Ahmici,

13 Your Honour. This gentleman -- this officer, I

14 believe, was one of the first officers to arrive on the

15 scene at Ahmici, at 11 a.m., on the 16th of April,

16 1993, while fighting was still going on, and he

17 testifies that the fighting actually increased in

18 intensity during his sojourn in the village. I believe

19 he spent four hours in the village altogether on the

20 16th -- actually, not altogether. Four hours on his

21 first sojourn, and he actually came back to the village

22 in the evening and assisted with the collection of

23 bodies and piling them up at the Catholic cemetery.

24 So in terms of Ahmici being one of the

25 seminal events in this entire case, it seems that it

Page 14517

1 would be helpful to the Trial Chamber, at least it

2 seems to me, that it would be helpful to have testimony

3 from a direct eyewitness to the events that occurred on

4 the 16th of April.

5 JUDGE MAY: Very well.

6 MR. NICE: Nothing to add, save to say that

7 no further cross-examination seems to have been

8 identified.

9 JUDGE MAY: Number 45?

10 MR. SAYERS: I believe, Your Honour, that the

11 position is as stated. We do not object to the

12 introduction of this testimony provided it's all

13 introduced, all of the direct examination, all of the

14 cross-examination, and the exhibits to which the

15 witness referred.

16 JUDGE MAY: Again, Mr. Kovacic hasn't made

17 his position known. I would be grateful if the

18 Prosecution would talk to him. I see that seems to be

19 a matter which is capable of resolution.

20 MR. NICE: Yes.

21 JUDGE MAY: Number 46, again, this deals with

22 a series of meetings which are not of central issue in

23 this case. Again, what is the objection?

24 MR. SAYERS: The objection is precisely that,

25 Your Honour, the meetings referred to are not of any

Page 14518

1 importance, we would submit, to any issue in this

2 case. But the principal objection is that there were a

3 number of diplomatic cables that were provided to

4 counsel for General Blaskic which we have not had the

5 opportunity to scrutinize, and so we're not in a

6 position to be able to evaluate whether a fully

7 effective job was done on cross-examination.

8 I will say, knowing counsel that represented

9 General Blaskic, an effective job of cross-examination

10 was probably done. But I would just simply like to

11 verify that for myself by looking at the cables, and I

12 would predict that once we do look at the cables, we

13 will conclude that no additional cross-examination

14 would be necessary and that our objection will be

15 withdrawn.

16 MR. SCOTT: Your Honour, on that point -- and

17 I'm not going to refer to this witness by name because

18 it is a confidential witness, with Rule 70 issues,

19 among others -- I will say, Your Honour, in terms of

20 the diplomatic communications that are referred to,

21 we've made this request to the United States

22 government. They, like many governments, are reluctant

23 to give up sensitive diplomatic communications,

24 especially absent a showing of real need, and I think I

25 have faithfully conveyed the Defence position to the

Page 14519

1 United States government.

2 Their position simply is -- they understand

3 what the Court's practice or what the Court has said

4 about these matters, that they believe that this

5 witness testified before; that they felt that they were

6 fully cooperative with the Tribunal in making this

7 witness available before; that he was fully

8 cross-examined; that these particular communications

9 were made available in a very limited way: they were

10 not exhibits, they were allowed to be reviewed by one

11 Defence counsel at the United States embassy, and they

12 were never copied or disclosed. And when they asked

13 me, Your Honour, frankly, why wasn't the

14 cross-examination full or complete in the Blaskic case,

15 I could give them no good reason, or why an additional

16 disclosure of these sensitive communications could be

17 made when there's no indication it's likely to result

18 in any significant new or additional

19 cross-examination.

20 So they are reluctant, Your Honour, to

21 disclose these sensitive communications, again, when

22 there's been no specific showing whatsoever that it

23 would result in new cross-examination.

24 JUDGE MAY: Thank you. That deals with the

25 first batch of witnesses, all but the evidence of

Page 14520

1 General Blaskic and a photographer. Clearly, General

2 Blaskic is in a different category and will have to be

3 separately considered.

4 The Trial Chamber will consider the

5 position. We would be grateful if counsel would carry

6 out such negotiations as have been suggested and

7 perhaps report back tomorrow, and we'll try and resolve

8 all matters tomorrow.

9 MR. NICE: Well, with Mr. Kovacic here this

10 afternoon at half past two and Mr. Scott taking the

11 next witness, it may be possible for he and I to

12 negotiate outside, perhaps.

13 JUDGE MAY: And perhaps Mr. Sayers too.

14 MR. NICE: I know that there's one other --

15 apart from Blaskic himself, there's one other witness

16 that's been the subject of a notice, and perhaps

17 Mr. Scott, in a minute, can just tell you what that's

18 about. There's one other witness as well that we've

19 dealt with that's only recently come to light. I think

20 there's an application before you.

21 JUDGE MAY: This is a -- yes. This was a

22 witness you were intending to call.

23 MR. SCOTT: It's a witness that we intend to

24 offer by transcript, Your Honour. It may be most

25 helpful on this particular one if we can just go to

Page 14521

1 private session for a moment, because I think it will

2 be somewhat artificial, perhaps, to talk about it in

3 the abstract.

4 [Private session]

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Page 14525

1 --- On resuming at 2.38 p.m.

2 [Open session]

3 MR. NICE: Before the witness is called, I'm

4 in a position to report on discussions with Mr. Kovacic

5 about transcripts, if that's helpful, although it's

6 true to say that we haven't yet reached a concluded

7 position.

8 The position is that we've been able to agree

9 on certain matters, and Mr. Kovacic requires time to

10 consider the others. I don't know if you would rather

11 have a partial update or whether you would rather put

12 it back until whenever he's going to be able to

13 complete his work.

14 JUDGE MAY: Well, rather than have a partial

15 update, it may be convenient to deal with it sometime

16 tomorrow morning, when you will have had slightly more

17 time to finish. Yes, thank you.

18 Yes, Mr. Scott.

19 MR. SCOTT: May it please the Court, Your

20 Honour. We're ready to proceed with the next witness,

21 but there is an application for protection. We can do

22 that part in private session, if the Court pleases.

23 JUDGE MAY: Yes.

24 Mr. Kovacic, there's no need to remain if you

25 want to go and go on with your transcripts.

Page 14526

1 MR. KOVACIC: Thank you very much, sir. I

2 appreciate that.

3 [Private session]

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22 --- Whereupon the hearing adjourned at

23 4.05 p.m., to be reconvened on Friday,

24 the 18th day of February, 2000, at

25 9.30 a.m.