Tribunal Criminal Tribunal for the Former Yugoslavia

Page 12463

1 Thursday, 21 April 2005

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 2.22 p.m.

5 JUDGE ORIE: Good afternoon to everyone.

6 Madam Registrar, would you please call the case.

7 THE REGISTRAR: Good afternoon, Your Honours, this is case number

8 IT-00-39-T, the Prosecutor versus Momcilo Krajisnik.

9 JUDGE ORIE: Thank you, Madam Registrar.

10 Mr. Gaynor, are you ready to call your next witness?

11 MR. GAYNOR: We are, Your Honour.

12 JUDGE ORIE: Ms. Loukas.

13 MS. LOUKAS: Yes, Thank you, Your Honour. There's just two quick

14 matters I want to place on the record before we proceed. Firstly, I'd

15 like to thank the Prosecution and the Trial Chamber for allowing the

16 evidence in chief and the cross-examination to be split up in such a way

17 on Thursday and Friday and I do appreciate that in view of the timetable

18 I'm currently undertaking and I'd like to place that on the record.

19 Thank you for that indulgence, firstly.

20 And secondly, we have with us a part-time intern that we've had

21 for the last time, Mr. Kevin Afghani who is on his way back to Texas and

22 this is his last day with us and his present is coming to court today to

23 assist me, Your Honour.

24 JUDGE ORIE: Yes, Mr. Afghani that is therefore a welcome and

25 farewell occasion. Welcome in court.

Page 12464

1 Mr. Gaynor, next witness, protective measures in place are voice

2 distortion, face distortion, and pseudonym.

3 MR. GAYNOR: That's correct, Your Honour.

4 JUDGE ORIE: Yes. Mr. Gaynor, in view of the questions you are

5 going to put to the witness first, should we start in open session,

6 should we start in private session? I take it that the first exhibit

7 that you will present to him will be his pseudonym sheet and then ...

8 MR. GAYNOR: Yes, I suggest we begin in open session with some

9 preliminary matters and then the public summary and then we turn to

10 private session.

11 JUDGE ORIE: Yes, then Madam Usher, could you please escort the

12 witness into the courtroom.

13 Madam Registrar already assigns a number to the pseudonym sheet

14 which saves time later.

15 THE REGISTRAR: The pseudonym sheet will be Prosecution Exhibit

16 P635, under seal.

17 [The witness entered court]


19 [Witness answered through interpreter]

20 JUDGE ORIE: Good afternoon, Witness 132. From your response, I

21 understand that you can hear me in a language you understand.

22 THE WITNESS: [Interpretation] Yes.

23 JUDGE ORIE: Witness 132, we'll not use your name. We'll address

24 you by using this number, 132. Your face will not be visible for the

25 outside world and your voice will be distorted when your testimony will

Page 12465

1 be sent to the outside world. If there's any need, since your testimony

2 might deal with identifying data, we can turn into private session so

3 that even the content of your testimony under those circumstances will

4 remain unknown to the outside world.

5 I ask you to stand and -- before giving evidence in this court,

6 the Rules of Procedure and Evidence require you to make a solemn

7 declaration. The text is handed out to you now by Madam Usher. Could

8 you please make that solemn declaration.

9 THE WITNESS: [Interpretation] I solemnly swear that I will speak

10 the truth, the whole truth and nothing but the truth.

11 JUDGE ORIE: Thank you very much. Please be seated. You will

12 first be examined by Mr. Gaynor, counsel for the Prosecution.

13 MR. GAYNOR: Thank you, Your Honour.

14 Examined by Mr. Gaynor:

15 Q. Witness 132, in a moment we're going to show you a piece of paper

16 on which is written your name and your date of birth and I would be

17 grateful if you could confirm simply with yes or no that that is your

18 name and date of birth.

19 A. Yes.

20 MR. GAYNOR: I'd now request that the witness be shown his two

21 witness statements.

22 JUDGE ORIE: Yes, Madam Registrar, have you received them and

23 have...? Could you assign exhibit numbers.

24 First, to the ICTY witness statement of 26 of January, 1999.

25 THE REGISTRAR: The statement dated 26 January 1999 will be P636,

Page 12466

1 and the statement dated 29 April 2003 will be P637.

2 JUDGE ORIE: Both under seal.

3 MR. GAYNOR: Could I ask the usher just to move the ELMO a little

4 bit. Thank you.

5 Q. Sir, have you had an opportunity to carefully review those two

6 documents over the last couple of days?

7 A. Yes.

8 Q. And subject to some corrections which we'll make in the course of

9 the proceedings today, do you adopt those two documents for the purpose

10 of your testimony?

11 A. Yes.

12 MR. GAYNOR: Your Honours, I'd now like to read a short summary

13 for the public of the matters which are contained in those statements.

14 In his statement, the witness refers to an SDS rally in Doboj in

15 August or September 1990, attended by Radovan Karadzic, Velibor Ostojic,

16 Nikola Koljevic, and other SDS representatives. At this rally, the

17 witness heard several speakers make references to the Serbs remaining on

18 their land and all Serbs living in one country.

19 At the end of 1991 and the beginning of 1992, weapons were

20 distributed to Serb civilians in villages all over Doboj municipality by

21 the JNA. The SDS established a Crisis Staff in Doboj. The SDS president

22 in Doboj was Milan Ninkovic.

23 In January and February 1992, Arkan's and Seselj's troops started

24 arriving in the area. Checkpoints were erected and manned by Serb

25 soldiers.

Page 12467

1 Prior to the takeover of Doboj by Serb forces, 10 to 15 non-Serb

2 shops and kiosks were destroyed. There were no attacks on Serb shops.

3 Some Muslims were killed.

4 On the 3rd of May, 1992, the Serbs took control of Doboj. The

5 Serb army and police occupied all government and public institutions.

6 Muslim policemen were arrested. The Serb Crisis Staff took control of

7 the municipality. Vehicles equipped with loudspeakers were driven around

8 the town; demands were broadcast from the loudspeakers that any Bosniaks

9 and Croats with weapons had to hand them in. The announcements also said

10 that Doboj had become Serbian Doboj and that Serbian liberation units had

11 freed Doboj.

12 During the takeover, Arkan's men, Seselj's men, JNA reserve

13 soldiers, and the local police were all involved in some way, for

14 example, by occupying buildings, setting up checkpoints, or standing

15 guard. The army had installed artillery positions in more than 10

16 positions around Doboj town. The witness and other Muslims decided to

17 leave the town.

18 That ends the summary. I request, Your Honour, that we go into

19 closed session.

20 JUDGE ORIE: We turn it to closed session -- private session.

21 [Private session]

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 12468











11 Page 12468 redacted. Private session.















Page 12469

1 (redacted)

2 [Open session]


4 Q. Witness as your evidence deals primarily with Doboj municipality,

5 I'm going to show you a couple of maps now. I would request that the

6 book of maps are placed on the ELMO at page 2.

7 Sir, I'd request you to point to the municipality of Doboj to

8 your right. If you look to your right on the ELMO.

9 A. [Indicates]

10 Q. Thank you. Now, in your statement, you've made several mentions,

11 this is in paragraph 2, that Doboj has been -- always been considered to

12 be a very important strategic location. Now, you mentioned the fact that

13 it's -- that there are a number of rivers that meet in Doboj. Are there

14 any other reasons why Doboj was considered to occupy a strategic

15 location?

16 A. Yes.

17 Q. Could you please give us some of those reasons.

18 A. Doboj was the largest railway junction in the former Yugoslavia.

19 Also, almost all roads running from the west towards the south and from

20 the south towards the east pass through Doboj. In times of war, for

21 example, in 1992, there is Mount Ozren dominating over the entire

22 territory of Doboj municipality.

23 Q. And what is the significance of Mount Ozren?

24 A. Mount Ozren is located between several municipalities in central

25 Bosnia. It's very important strategically in time of war. It was even

Page 12470

1 important in World War II because during 1945, the partisan units

2 liberated that area. It is still very important today in that part of

3 Bosnia and Herzegovina.

4 Q. Thank you. We're now going to show you a map of the city of

5 Doboj.

6 MR. GAYNOR: At this stage, I'd like to explain to Your Honours

7 that the witness has marked this map with a yellow line and in the course

8 of his testimony we'll come to the significance of this yellow line.

9 We're just bringing the map in at this stage for orientation reasons.

10 I'd request when the registrar has a moment, an exhibit number for this

11 map.

12 THE REGISTRAR: The map will be P638. Does it need to be under

13 seal, Mr. Gaynor?

14 MR. GAYNOR: It does not need to be under seal.

15 Q. Could you point out, just very briefly, the train station.

16 THE INTERPRETER: Could Counsel please switch off his microphone.

17 MR. GAYNOR: I'd request the usher to move the map up.

18 A. It's this part here.


20 Q. And do you know the locations of mosques in Doboj town?

21 A. Yes. One of the mosques is somewhere here. This is the upper

22 mosque here, and there's one here. There was a mosque here as well. And

23 there was another mosque in Orasje up here.

24 Q. We'll turn to a map a little later on in your testimony.

25 JUDGE ORIE: Mr. Gaynor, if the witness points a at something on

Page 12471

1 the map, you should describe where he points it because otherwise one

2 could not understand the testimony without consulting the videotapes.

3 Let me just -- the witness first pointed close to where it's

4 indicated on the map one-third from above, approximately in the middle

5 where it says, "mosque"; then he pointed at a place just north of where

6 the map says "building"; and the third one -- and when I say "building,"

7 building 198M, 51M because there are more buildings on it; and then the

8 third one was a little bit east from that.

9 Certainly, if you are preparing such maps, it saves a lot of time

10 if you ask the witness to indicate with numbers where mosques are.

11 Please proceed.

12 MR. GAYNOR: Certainly. Thank you, Your Honours. This specific

13 map, just for everyone's attention has a legend on the right-hand side

14 which shows mosques and churches which is -- which will be helpful in

15 reviewing the witness's evidence.

16 JUDGE ORIE: Yes, but at the same time, the witness pointed at a

17 place where there was a mosque and where there's no mosque anymore as far

18 as I understand, where there's no indication of a mosque in accordance

19 with the agenda. So for mosques that have disappeared, it's hardly of

20 any use to look at the agenda.

21 Please proceed.

22 MR. GAYNOR: Thank you, Your Honour.

23 Q. We can put the map to one side now, thank you.

24 Sir, in your statement and this is at paragraph 8, you said that

25 you were aware of the policies of various political parties. You said

Page 12472

1 that the SDS platform was based on the establishment of a state where all

2 Serbs could live together. Now, how did you know that?

3 A. Well, as a deputy in the republican parliament of Bosnia and

4 Herzegovina, especially after the adoption of the memorandum, the letter

5 of understanding, and our decision to carry out a referendum in Bosnia

6 and Herzegovina, they said that the Serbs should all live together in one

7 state and so on and so forth.

8 MR. GAYNOR: I request that the witness be shown the exhibit,

9 please. And I'd request an exhibit number for this.

10 JUDGE ORIE: Madam Registrar.

11 THE REGISTRAR: This will be Prosecution Exhibit P639.

12 MR. GAYNOR: Now, as is -- can be seen, this is a set of

13 decisions by local communes in Doboj municipality. Some are dated the

14 13th of October, 1991; some are dated the 14th of October, 1991.

15 Q. Sir, you've had an opportunity to review these decisions before

16 today; is that right?

17 A. Yes.

18 Q. Can you explain to the Court what these decisions are about.

19 A. These decisions concern the demand of the Main Board of the Doboj

20 SDS to all municipalities that they should declare the territories of

21 their local communes an integral part of the state of Yugoslavia rather

22 than Bosnia and Herzegovina. What is very important to point out here is

23 that this document shows that the SDS, or rather its Municipal Board,

24 used the rights of the local communes because they were self-governing

25 bodies and they had to carry out only the decisions of the Municipal

Page 12473

1 Assembly, not those of a political party. And yet this applied to all

2 the local communes in Doboj municipality, as you can see from the stamps

3 here.

4 MR. GAYNOR: I'd now request that the witness be shown the next

5 exhibit, please. I'd request an exhibit number for that.

6 THE REGISTRAR: The exhibit number will be P640.

7 MR. GAYNOR: These are some of the decisions of the communes in

8 Doboj dated the 13th of October, 1991 and these include three that we've

9 just seen. The difference is that these bear a stamp of the SDS

10 indicating -- possibly indicating receipt by the SDS.

11 MS. LOUKAS: Your Honour, just in relation to that, this is a

12 matter in which Mr. Gaynor really shouldn't be giving evidence from the

13 bar table.

14 JUDGE ORIE: Ms. Loukas, are you opposing against Mr. Gaynor

15 saying that the stamp of the SDS appears or ...

16 MS. LOUKAS: Yes, Your Honour. I mean there really isn't a --

17 that is not in the nature of a question to the witness, that is in the

18 nature of an assertion by the questioner. And it is on that basis that I

19 object.

20 JUDGE ORIE: Ms. Loukas, that stamps appear on these documents

21 from the SDS is something even without any questions the Chamber could

22 deduce from the paper itself.

23 MS. LOUKAS: Precisely, Your Honour, it is a matter for the

24 Chamber and it's not a matter for editorialising in a question from the

25 Prosecutor. That's my point.

Page 12474












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Page 12475

1 JUDGE ORIE: Let's see what question then follows. If the

2 question is about the stamp then of course it might be wise to draw the

3 attention of the witness to the presence of the stamp.

4 Please proceed, Mr. Gaynor.

5 MR. GAYNOR: Your Honour, I think the best way to proceed is we

6 can move on to the next exhibit. Your Honours can draw which ever

7 inferences Your Honours wish from that exhibit. I would request

8 therefore that the next exhibit be shown to the witness.

9 JUDGE ORIE: Yes, and that would be, Madam Registrar, P641 -- no,

10 again I'm -- I leave it to you, Madam Registrar.

11 THE REGISTRAR: That was correct, the next exhibit number is

12 P641.

13 MR. GAYNOR: This is a letter headed "Serb Democratic Party, BiH,

14 SDS Municipal Board, Doboj." And I'll ask the witness:

15 Q. Sir, could you explain what this document means.

16 MS. LOUKAS: Again, Your Honour, just in relation to this, this

17 is a document in relation to the evidence that is not the witness's

18 document; it is not in fact a document that he can, in reality, cast any

19 light on. The document speaks for itself. It's a document that the

20 Trial Chamber can deal with at the relevant time and draw whatever

21 inferences it wishes. But to question this witness on a document of this

22 nature does not, in my submission, assist the Trial Chamber.

23 JUDGE ORIE: Yes. Mr. Gaynor, could you first find out whether

24 the witness is familiar with this document, how he became familiar with

25 it, and whether he dealt with it in a way which would ask him to

Page 12476

1 interpret that. If it's just a matter of reading and -- then perhaps we

2 should put different questions to him.

3 MR. GAYNOR: There's one small procedural question. I would

4 request that we go into private session.

5 JUDGE ORIE: Yes, we will then turn into private session.

6 [Private session]

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

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23 (redacted)

24 (redacted)

25 [Open session]

Page 12477


2 Q. Witness, we're moving on to a new topic and that is the arming of

3 Serb civilians in Doboj. In your statement - there's no need to refer to

4 it, it's paragraph 16 for the rest of the Court - you said in your

5 statement at the end of 1991 and at the beginning of 1992, weapons were

6 distributed to Serb civilians in villages all over Doboj municipality by

7 the JNA from the central barracks. There's no need, sir, for you to

8 refer to your statement, it's quite all right. My question is: How did

9 you become aware that this distribution of weapons was taking place

10 across the municipality?

11 A. As I said in my statement, there was a local commune, Ritesic,

12 which was of mixed ethnicity. In one part there lived Serbs and Croats

13 lived in the other part. And the Serb representatives came to see me one

14 day from this local commune and they said, or rather the Croats came to

15 explain that weapons had been distributed only to the Serbs. The entire

16 council of this local commune came to see me.

17 Secondly, as I said, the president of Maglaj, a lady, also

18 personally asked that Cazim Hadzic, the commander of the garrison to

19 intervene because a day or two previously, she had seen in villages in

20 the Maglaj municipality that weapons were being distributed to Serb

21 civilians.

22 MR. GAYNOR: Your Honour, I would request that we go into private

23 session out of an abundance of caution.

24 [Trial Chamber confers]

25 JUDGE ORIE: We turn it to private session.

Page 12478

1 [Private session]

2 (redacted)

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5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

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Page 12479











11 Pages 12479-12505 redacted. Private session.















Page 12506

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20 [Open session]

21 JUDGE ORIE: Please proceed, Mr. Gaynor.


23 Q. Now, in your statement, you said that you saw - this is paragraph

24 23 - you saw Seselj's and Arkan's men during the takeover. Is it, in

25 fact, correct that you did see Seselj's men during the takeover but you

Page 12507

1 heard of the involvement of Arkan's men from other persons; is that

2 correct?

3 A. Yes.

4 Q. Now, in paragraph 24, you say, "Bijeljina, Visegrad, Foca,

5 Bratunac, and other towns in eastern Bosnia were already taken over by

6 Serbs. I knew what had happened in those places."

7 My first question is what was it you knew? What had happened in

8 those places?

9 A. The first attack on one of the Bosnian cities was on Bijeljina.

10 This was carried out by the Arkan's men, the paramilitaries. A few days

11 ago, there was a trial of a person or rather a person attended a trial.

12 He was a journalist who covered these developments along with Madam

13 Plavsic and others. We learned later on that it had been launched by

14 Arkan.

15 Later on, all the developments in towns where people were abused,

16 stories about this went around, people talked about it, and one could

17 also learn about this on the TV.

18 Q. Now, I want to focus there on specifically in the period prior to

19 the takeover of Doboj. You said that you could learn about it on the TV.

20 What, briefly, did you see on the television about events in eastern

21 Bosnia?

22 A. The Sarajevo TV that broadcast on several occasions, these were

23 reports made by our journalists who went out into the field to report on

24 what was going on. Many could not even reach these areas because there

25 was an exodus of people leaving Bijeljina who were eyewitnesses and they

Page 12508

1 were interviewed on the TV and they talked about how the Bosniaks had

2 been abused. Particularly memorable was an interview with a lady from

3 Bratunac who said that she saw in several houses in her street dead

4 bodies of her neighbours who had been killed and she had also heard that

5 all the residents living in that particular street had been killed in

6 their homes.

7 Q. What ethnicity --

8 MS. LOUKAS: Your Honour, just in relation to the sort of

9 evidence we're receiving at the moment, I do object to further questions

10 on what was seen on TV. I think this witness is here to tell us about

11 what he knows about Doboj and it's not particularly helpful to the Trial

12 Chamber to learn secondhand what this man saw on TV.

13 JUDGE ORIE: Ms. Loukas, what people saw on the television at

14 that time, whether it was the truth or whether it was a manipulation of

15 media certainly may have influenced the behaviour of people at that time.

16 So I do agree that -- with you that you if you see something on

17 television, then that's not true for that reason; but at the same time,

18 what people saw on television -- to see something on television is a

19 fact.

20 MS. LOUKAS: Oh, indeed, Your Honour, and I don't disagree with

21 that but if we spend a lot of time dealing with --

22 JUDGE ORIE: Well Mr. Gaynor is not going to spend a lot of time

23 on it, I take it.

24 Mr. Gaynor, I take it that the general impression would do on the

25 basis of what I said because if I see something on television to happen,

Page 12509

1 then it does not necessarily mean that it's true.

2 MR. GAYNOR: That's correct, Your Honour.

3 JUDGE ORIE: And other evidence of course in terms of Bijeljina

4 have been presented. And so therefore, I take it that Mr. Gaynor is

5 leading this evidence in order to find out whether the behaviour of

6 persons in other municipalities might have been influenced by they saw on

7 television and therefore it's important to know what approximately they

8 saw on television.

9 MR. GAYNOR: Yes, Your Honour. I'd just like to add that one of

10 the issues in dispute is the extent to which the commission of crimes was

11 publicly known and reflected in the media.

12 MS. LOUKAS: Your Honour, perhaps this is not a matter that

13 should be dealt with whilst the witness is present.

14 JUDGE ORIE: I -- as a matter of fact, I would allow Mr. Gaynor

15 within the limits I gave, and of course having heard the last line he

16 spoke, to continue.

17 Please proceed.

18 MR. GAYNOR: Thank you, Your Honour.

19 Q. Sir, you have referred there briefly to a broadcast of a woman in

20 Bratunac. Could you clarify the ethnicity of that woman.

21 A. She was a Muslim.

22 Q. Did you hear on the radio or did you read in any newspapers prior

23 to the 3rd of May, 1992 any reference to killings of Muslims or

24 destruction of Muslim property of any kind?

25 A. Doboj was attacked on the 3rd of May. Before that, those towns

Page 12510












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Page 12511

1 that I mentioned in eastern Bosnia had already fallen. There were

2 residents leaving those areas just as the residents of Doboj were leaving

3 the area after the takeover and of course they were not leaving of their

4 own free will or going on vacation, they were driven out of there and

5 they talked about it. Fortunately, Doboj did not suffer as much as a

6 town as did others in Bosnia and Herzegovina.

7 If this was the case of just one person watching this on the TV

8 or just watching one person leaving, then this might be disputed;

9 however, if you have 15.000 people leaving an area, then it is quite

10 clear what we are talking about. The alternative for these people was to

11 be put away in camps as was the case in some other towns.

12 MS. LOUKAS: Your Honour, this is the problem with that sort of

13 generalised question about reading newspapers and what have you.

14 Your Honour, this sort of evidence in relation to what was going

15 on in other parts of Bosnia is a matter for the Trial Chamber and is not

16 going to be assisted by the witness giving this sort of evidence.

17 JUDGE ORIE: Mr. Gaynor.

18 MR. GAYNOR: Thank you, Your Honour.

19 JUDGE ORIE: I wondered whether you would like to respond to

20 that.

21 MR. GAYNOR: Yes. First of all there's two very clear points

22 here. One is knowledge of the accused, did he know the crimes were being

23 committed.

24 MS. LOUKAS: Your Honour, this is just not an appropriate matter

25 to be discussed in the presence of the witness.

Page 12512

1 JUDGE ORIE: Mr. Gaynor, of course it's not. We are not going to

2 present in the presence of the witness what the real issues are.

3 Ms. Loukas, let me say it in a different way. You may object to

4 any question put by Mr. Gaynor if you think fit to do so. You said that

5 this evidence was problematic which is not an objection.

6 Mr. Gaynor, you may proceed but at the same time, you now are

7 aware of what Ms. Loukas finds problematic so therefore, try to avoid

8 that she has to object.

9 Please proceed.

10 MR. GAYNOR: Thank you, Your Honour.

11 Q. Now, sir, in your statement, you said, "To avoid destruction, I

12 advised the Bosniak --" at this point, I request that we go into private

13 session, please, Your Honour.

14 JUDGE ORIE: We turn it to private session.

15 [Private session]

16 (redacted)

17 (redacted)

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Page 12513











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Page 12539

1 (redacted)

2 (redacted)

3 [Open session]

4 JUDGE ORIE: Ms. Loukas, any need to put further questions to the

5 witness raised by questions of the Bench?

6 MS. LOUKAS: Well, Your Honour, there are two points that I need

7 to make. And firstly, it's in relation to Your Honour's questions. I

8 want to make this point first.

9 JUDGE ORIE: Ms. Loukas, I would first like to know from you

10 whether you will put any questions to the witness because if not, you can

11 make whatever observations you'd like to but then the witness could be

12 excused and could --

13 MS. LOUKAS: Certainly, Your Honour, then in that case, I can

14 indicate that no, I do not propose to ask the witness any further

15 questions; and my second point is to raise these other matters for Your

16 Honour. But I'm happy for Your Honour to bring the witness back in,

17 excuse him, and then I can place the matters on the record that I need to

18 place on the record.

19 JUDGE ORIE: That's exactly what I had in mind.

20 [Trial Chamber confers]

21 JUDGE ORIE: Ms. Loukas, the situation is even more complicated

22 since Judge Canivell has one more question for the witness. So Madam

23 Usher, could you please escort the witness into the courtroom.

24 Ms. Loukas, may I take it that the question -- questions by Judge

25 Canivell would make you reconsider your position as to not further put

Page 12540

1 your questions to the witness that you report to me without asking, yes.

2 MS. LOUKAS: Indeed, Your Honour.

3 [The witness entered court]

4 JUDGE ORIE: Welcome back, Witness 132. Judge Canivell has one

5 or more questions for you.

6 JUDGE CANIVELL: Thank you, Mr. President.

7 JUDGE ORIE: Judge Canivell doubts whether he took the wrong

8 channel but...

9 JUDGE CANIVELL: I was hearing in French.

10 JUDGE ORIE: Everything is fine now, again.

11 JUDGE CANIVELL: I'm going to address you in English. And my

12 point is the next. You said in your statement that those paramilitary

13 forces, Arkan's and Seselj's forces, arrived to stay in Doboj in

14 January/February 1992. Nevertheless, the takeover of the town by the

15 Serb forces didn't happen until May the 3rd, 1992.

16 Can you tell me what were doing those paramilitary people, that

17 is at the moment that you said they were 500 strong, why they were

18 staying there because the only -- the only thing we know, we have been

19 told for sure is that the Seselj's people were going to the army barracks

20 for their meals but for the rest, they were remain in -- what were they

21 doing during these three months March, April, perhaps you said that they

22 began arriving on January, these three months, what they were doing there

23 besides this activity of maintaining themselves in life?

24 A. It wasn't the 3rd of March but the 3rd of May, 1992, up to the

25 3rd of May. There was already a war theatre in Podnovlje, some 20

Page 12541

1 kilometres away from Doboj. And the JNA, even from the Tuzla area, would

2 come there and send soldiers off to war. This is illustrated best by the

3 fall of Bijeljina. Bijeljina was completely occupied by Arkan's units

4 alone and this was before Doboj fell.

5 As for Seselj's men, 500 of them probably did not arrive all at

6 once. They were seen sleeping in the Serbian church in Doboj and it was

7 only some 15 days before the attack on Doboj that they expelled the

8 people in the weekend cottages in the area of Ankare and there they

9 encamped themselves waiting for the 3rd of May. On the 3rd of May, they

10 attacked together with the regular army of the Bosnian Serbs which was

11 still called the JNA at the time but had been ethnically cleansed of all

12 other ethnicities but the Serbs.

13 JUDGE CANIVELL: Perhaps -- may we understand that those people

14 began arriving on January/February but not the 500 of them and they

15 arrived later on or what was that? Because I don't understand what so

16 many people were doing stationed there without moving only except for

17 they went to have meals in a different location. Perhaps they were --

18 you said that they were in Bijeljina. But if they were in Bijeljina,

19 they were withdrew or they were so many as to be -- quite a few in

20 Bijeljina and 500 more are still in Doboj? How can you explain this

21 situation? I would like to know better about that.

22 A. When I said starting in January, that's when groups of Seselj's

23 men were first observed in houses in Serb local communes. I don't know

24 what they were doing. Were they going off to fight in the Podnovlje

25 area, down there, I don't know. But on the 3rd of May in Doboj, they did

Page 12542

1 participate in the takeover of Doboj.

2 JUDGE CANIVELL: Thank you.

3 JUDGE ORIE: If there are no further questions, I'd like to thank

4 you, Witness 132 to come to The Hague. The Defence will not

5 cross-examine you, they have no questions for you. That means that this

6 concludes your testimony in this Court.

7 I'd like to thank you for -- usually I say having answered

8 questions of both parties, but at least to have answered all questions

9 put to you in this courtroom and I wish you a safe trip home again.

10 THE WITNESS: [Interpretation] Thank you very much.

11 JUDGE ORIE: Madam Usher, could you please escort the witness out

12 of the courtroom.

13 [The witness withdrew]

14 JUDGE ORIE: Yes, Ms. Loukas. You would like to put something on

15 the record. Please do so.

16 MS. LOUKAS: Yes. Thank you, Your Honour. As I foreshadowed,

17 it's in relation to Your Honour's questions and as Your Honour is aware,

18 I've placed on the record before that of course this is a hybrid system

19 and the Judges asks questions in a way that is not the usual practice in

20 a common-law system but nevertheless we are in a hybrid system and as a

21 result matters that I would normally object to at a judge asking

22 questions are taken with a somewhat greater level of discretion because

23 the test that has been enunciated is only in exceptional circumstances as

24 Your Honour as indicated, only in exceptional circumstances.

25 Now, Your Honour, in relation to -- of course, the background

Page 12543

1 being that leading questions are -- on critical areas, are prohibited as

2 a general rule because the fact is the court requires the evidence from

3 the witness and there's a danger in suggesting answers to a witness.

4 That the much is clear and that much is abundantly clear to everybody in

5 the courtroom. But when a question is asked in a leading fashion or

6 suggestive of an answer with the imprimatur of the Judge, a fortiori it's

7 an even more exceptional situation.

8 Now in relation to the questions that were asked of this witness,

9 I would indicate the vast bulk of them being questions of an open nature,

10 I have no submission or objection to make in relation to them. But

11 specifically in relation to a question that appeared on page 62 of the

12 transcript, Your Honour, and this was this question of the meals and what

13 have you, and the witness very clearly gave his answer on page 19 and 20

14 of the transcript in his evidence in chief on this issue. Then Your

15 Honour picked up the issue in your questions and very specifically here,

16 on page 62, Your Honour has indicated in your question: "But at least

17 some people in the regular forces must have known."

18 Now, Your Honour, it's specifically that that I object to. And

19 with the greatest of respect, Your Honour, that suggestion in the

20 question is what I object to because the temptation for the witness to

21 agree with a suggestion with the imprimatur of the Judge is overwhelming.

22 And Your Honour will notice the different in the answers of this witness

23 initially in evidence in chief, the series of questions prior to Your

24 Honour asking this question, and then Your Honour's question with that

25 suggestion of "must have known." And Your Honour, I very clearly and

Page 12544

1 specifically do place any objection in relation to questions that contain

2 that sort of suggestion in them from the Bench.

3 That's the matter I wish to place on the record.

4 JUDGE ORIE: Thank you, Ms. Loukas.

5 Mr. Gaynor, is there any procedural issue you'd like to raise?

6 MR. GAYNOR: We have no submissions, Your Honour.

7 JUDGE ORIE: No submissions at this point.

8 Ms. Loukas, I've got one question for you at this moment. You

9 ask a specific matter to be struck from the record whereas some follow-up

10 questions came up which might, to some extent, have changed your view.

11 I'm trying to find it. I don't know whether you remember that you asked.

12 MS. LOUKAS: At what page of the transcript?

13 JUDGE ORIE: I'm just finding it because I was on the right page

14 but then I wanted to go to the page that you mentioned so I'll find it

15 quickly. Yes. It is on page 23. Some questions were put, as a matter

16 of fact, you responded to the answer of the witness -- just in relation

17 to that last answer, you said, "A portion of that second-last answer was

18 not actually a specific answer to the question and he was also Serb and

19 they probably did not want to shed any light on --"

20 MS. LOUKAS: Yes, that's a quote from -- that probably should be

21 in a quote, actually, Your Honour.

22 JUDGE ORIE: But apart from that, you wanted that part to be

23 struck whereas Mr. Gaynor did put some follow-up questions which gave it

24 at least a context.

25 MS. LOUKAS: I'm just reading the further questions and answers,

Page 12545

1 Your Honour, just to place it in context.

2 JUDGE ORIE: The witness said that they probably did not want to

3 shed any light on these incidents and of course what he then did at a

4 later stage was giving a lot of explanation what gave him reasons to even

5 if put in the form of conclusion, to believe that no serious attention

6 was paid to the investigation of such matters.

7 MS. LOUKAS: Indeed, Your Honour, and there was a series of

8 questions that were also asked there by His Honour Judge Hanoteau in

9 relation to the issue.

10 In view of the fact that there have been those various follow-up

11 questions and the matter has been explored, I now withdraw my application

12 to strike that particular portion because the matter was explored in a

13 way that it needed to be explored subsequently.

14 JUDGE ORIE: So that we don't have to decide on that.

15 It also learns that one thing: That requests to have parts of

16 the evidence struck from the record very often should not be decided on

17 that very moment, that sometimes you would first have to see what context

18 it get, what other evidence is presented because only at a totally

19 different stage you could really come to conclusions as to whether that

20 evidence is totally useless.

21 MS. LOUKAS: Of course, Your Honour. As with everything, it's

22 something of a balancing exercise and of course, Your Honours, we've had

23 situations where Your Honour has in fact struck something from the record

24 and it was very appropriate at the time.

25 JUDGE ORIE: I'm not saying it's never appropriate but very often

Page 12546

1 -- I mean, if you want to balance things, sometimes you first need to

2 have something on both scales and to wait for a while to see whether

3 there will be any weight on the other part of the scale.

4 MS. LOUKAS: Your Honour, I guess I always have an instinctive

5 reaction to speculation.

6 JUDGE ORIE: Yes. Then this brings me to a second observation.

7 Once you also objected to a question put by Mr. Gaynor and before the

8 answer was given, you knew already that the answer would be secondhand

9 hearsay whereas from the answer, it appeared that it was just firsthand

10 hearsay. Of course firsthand hearsay is still hearsay, but I think that

11 sometimes it's wise to just wait a second and see what happens. I think

12 that usually the results of taking a bit more time are less dramatic

13 before a professional bench as they would have been before a jury.

14 Mr. Gaynor, a similar matter for you. You asked extensively on

15 the 15.000, how it was composed, whether there were -- and the witness

16 said that they came from Derventa, they were refugees, they were Muslims,

17 they were Croats. If you had looked 10 pages earlier, you would see that

18 you put exactly the same questions to the witness and that the witness

19 gave exactly the same answers. For your guidance, that was on page 14,

20 line 17.

21 Are there any -- oh, yes, and one final thing, Ms. Loukas. You

22 made on objection and -- about question asked, question answered. And it

23 will not take more than two minutes since we have this time, let's use it

24 to see whether we can improve our court performance. You raised an issue

25 of question asked and question answered. I invited you to tell me

Page 12547

1 exactly where that specific question was asked; then you pointed at the

2 question which was a more general question on the same subject. I then

3 gave a decision of the Chamber that Mr. Gaynor was entitled to put a

4 follow-up question asking whether the reasons given were the exclusive

5 reasons or whether they were more and then you said, "Yes that's the

6 point, that's a leading question."

7 I try not only to study the hybrid system but I also try to get

8 as good as I can acquainted with the common-law tradition. I must say,

9 but you will certainly assist me if it's different, I did not find

10 anywhere until this moment how an objection of question asked, question

11 answered undergoes a change of character and that at the end of an

12 objection introduced under this heading, this Chamber would have to

13 decide on leading questions which is, of course, a totally different

14 matter.

15 MS. LOUKAS: I see Your Honour's point. I will make one comment

16 in relation to that. In fact, as often there is with many objections,

17 there's a main point of the objection and there's a subsidiary point and

18 in the interests of brevity I went for my main point but that doesn't

19 mean that there may not be a -- there are questions, of course, Your

20 Honour, that have a number of bases that they can be objected to and one

21 tends to take the headline or the one that you think is the most

22 pernicious aspect of the question asked.

23 JUDGE ORIE: Which unfortunately was without factual basis.

24 MS. LOUKAS: [Microphone not activated]... and it reminds me

25 that of course that I must always accept Your Honour's judgement on that.

Page 12548

1 JUDGE ORIE: We will adjourn until -- exhibits still to be dealt

2 with.

3 Madam Registrar, we do indeed, we have the -- yes, we just go

4 through the numbers, you mentioned numbers and we'll give a decision on

5 admission.

6 THE REGISTRAR: P635 to P637, under seal. P638 to P641.

7 JUDGE ORIE: Yes. And then Mr. Gaynor, as far as P638 is

8 concerned, -- no, 639, you have described it as a set of decisions dated

9 the 14th but that should be the 13th or the 14th, I take it.

10 MR. GAYNOR: That's correct, Your Honour.

11 JUDGE ORIE: Yes. So Madam Registrar, I take it that you will

12 make the set consisting of two dates rather than of one. No objections.

13 The P635 up until and including 641 are admitted into evidence.

14 If there are no further procedural issues, we'll adjourn until

15 next Monday morning in this same courtroom at 9.00.

16 --- Whereupon the hearing adjourned at 6.26 p.m.

17 to be reconvened on Monday, the 25th day of April,

18 2005, at 9.00 a.m.