1 Wednesday, 18 May 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

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

9 JUDGE ORIE: Thank you, Madam Registrar.

10 Mr. Stewart, are you ready to --

11 MR. STEWART: Yes, Your Honour.

12 JUDGE ORIE: -- cross-examine the witness.

13 Mr. Stewart, I do understand that there are a few technical

14 matters in relation to the transcript that you'd like to draw the Chamber's

15 attention to.

16 MR. STEWART: Yes, Your Honour.

17 JUDGE ORIE: Madam Usher, I think you should try to find a

18 witness and I'll apologise for a second if he comes in.

19 Yes.

20 MR. HARMON: This will be very brief, Your Honour. With the

21 Court's permission, I reviewed the transcript, the LiveNote transcript, and

22 confirmed that there are two errors in the official transcript. If I can

23 direct the Court's attention to the two errors. I've discussed both errors

24 with Mr. Stewart, and he's prepared to enter into a stipulation as to the

25 corrections that I'm going to propose.

1 JUDGE ORIE: Yes.

2 MR. HARMON: The first appears on page 13030 at line 10.

3 JUDGE ORIE: What day is that, Mr. Harmon?

4 MR. HARMON: That's yesterday.

5 JUDGE ORIE: Yesterday, yes.

6 MR. HARMON: And the -- the error is the acronym UNTSO. I then

7 said the United Nations Truce Supervision Organisation. What is in the

8 record is "truth," instead of "truce."

9 JUDGE ORIE: Yes.

10 MR. HARMON: And Mr. Stewart will accept that that correction

11 should be made.

12 JUDGE ORIE: T-r-u-c-e rather than T-r-u-t-h.

13 MR. HARMON: Correct.

14 JUDGE ORIE: Yes.

15 MR. HARMON: The second error appears on page 13054 of

16 yesterday's transcript, line 16, in that General Wilson was describing the

17 types of heavy weapons that were available to the Bosnian Serbs.

18 JUDGE ORIE: Yes.

19 MR. HARMON: And it describes mortars of 160 millimetre.

20 JUDGE ORIE: Yes.

21 MR. HARMON: And it should be 120 millimetre. And Mr. Stewart -

22 - I've raised that issue with Mr. Stewart and he accepts that correction as

23 well.

24 JUDGE ORIE: Yes.

25 MR. HARMON: Thank you, Your Honour.

1 JUDGE ORIE: That is, then, on the record.

2 [The witness entered court]

3 JUDGE ORIE: Good afternoon, Mr. Wilson.

4 THE WITNESS: Good afternoon, Your Honour.

5 JUDGE ORIE: I'd like to remind you that you're still bound by

6 the solemn declaration you've given at the beginning of your testimony.

7 Defence counsel will now have an opportunity to cross-examine you.

8 THE WITNESS: Thank you.

9 WITNESS: JOHN WILSON

10 JUDGE ORIE: Mr. Stewart, please proceed.

11 Cross-examined by Mr. Stewart:

12 Q. Mr. Wilson, my apologies to those on the Internet in Australia

13 for depriving them of an opportunity of an all Australian tussle by not

14 having my co-counsel cross-examine you. You'll have to make do with me,

15 Mr. Wilson.

16 First of all, I would just like to clear up a couple of smallish

17 points about your own movements during the period in question. The -- in

18 the -- your final report after your tour of duty, which was P720. That's a

19 document.

20 MR. STEWART: If the witness might have that. That was his

21 report dated the 15th of November, 1992.

22 Q. You've set out on the second page under -- it's paragraph 4,

23 "Outline of movements," which is what it says. And then you've set out

24 your own movements. I just want to confirm with you: Under item, letter

25 (I), 29th of April to 9th of May, CMO, that's you, returns to UNTSO. So

1 that was -- that was where?

2 A. That was returning from -- sorry, wrong. I had left Sarajevo on

3 or about the 29th and returned to Jerusalem to pack up my wife and send her

4 back to Australia. She'd been left in Jerusalem while I'd been temporarily

5 deployed to Yugoslavia in January and February.

6 Q. Yes. That's what I wanted to clarify. So the where was to

7 Jerusalem. And then I think you must have come back from -- from the looks

8 of this, you must have come back from Jerusalem on about the 9th of May.

9 And then -- then you -- you returned to Belgrade and then made your way

10 from Belgrade back to Sarajevo. Is -- is that right? Because on the --

11 I'm going from the transcript yesterday where you said - this is page 24 of

12 that version of the transcript - where you said that you had travelled on

13 the 13th of May, you travelled from Belgrade to Sarajevo. So you went from

14 Jerusalem to Belgrade for a few days, did you, and then down to Sarajevo?

15 A. Yes, I did. And, in fact, it was the 13th of May that I

16 relocated. I have good reasons for remembering that date.

17 Q. And then as it appears from your report, then, you got back to

18 Sarajevo on the 13th. UNPROFOR itself, as an organisation, it relocated to

19 Belgrade but you stayed in Sarajevo, as you've indicated, but just until

20 the 25th of June.

21 A. 25th or 24th. I think this is slightly different to --

22 Q. But we're --

23 A. -- my statement. What was in my statement says the 24th. This

24 says the 25th. About the same.

25 Q. Mr. Wilson, if neither you nor the Trial Chamber are worried

1 about that one day, neither am I. So the -- thank you very much for that.

2 So the -- but the picture we have, then, is that, as you

3 described in your evidence yesterday, for the first few months of your tour

4 of duty the focus of your work was more towards Croatia than Bosnia, wasn't

5 it?

6 A. It was almost exclusively towards Croatia until about the 22nd of

7 March, when UNPROFOR deployed to Bosnia-Herzegovina and I accompanied that

8 deployment, and I then had to be concerned about the deployment of the

9 military observers to the two designated areas, which, as I said yesterday,

10 was UNPROFOR's only operational interest in Bosnia-Herzegovina at that

11 time.

12 Q. And you were on a -- whatever the steepness of the learning curve

13 that you found yourself on, it's not unfair to say that you, as far as --

14 as Bosnia and Herzegovina was concerned, you were in January/February 1992,

15 you were very far down towards the bottom of the curve in relation to

16 Bosnia at that time.

17 A. It's true to say in January/February I knew very little about

18 Bosnia-Herzegovina, although my -- my knowledge grew the longer I stayed in

19 the former Yugoslavia. And certainly by March I was beginning to develop a

20 -- an understanding of the -- the geography and events that were emerging.

21 Q. Because you said - and this was page 10 of yesterday's evidence -

22 you said that it had been pointed out to you that should the conflict

23 spread from Croatia to Bosnia-Herzegovina, it would be far more serious,

24 have much more impact than had been the case in Croatia, and you said this

25 surprised you at the time because you were unaware there was any likelihood

1 of the conflict spreading. Those conversations - and I think you indicated

2 that some of this information came from the Croat politicians, among others

3 - but that was -- the time period there is early 1992, is it,

4 January/February 1992 that you were hearing these things?

5 A. January/February. More likely February. But it was not from

6 Croat politicians, it was Croat military that I heard that.

7 Q. I beg your pardon.

8 Now, in your -- this same report that is in front of you, you

9 indicated that paragraph 6 was really concerned with Croatia and then

10 paragraph 7 in terms indicates, of course, that you're turning to Bosnia in

11 -- in this report. The -- you described -- Mr. Harmon asked you questions

12 about the -- the basis of your information here, and you said that it was -

13 - he said: "Was this based on your personal observations, your contacts

14 with leaders from the respective parties, based on reports that you'd

15 received from responsible third parties? What was it based on?" And then

16 you said, "All those elements." And then you said, "My observations from

17 almost 12 months in UNPROFOR, my personal contacts with the political

18 leadership at the highest level."

19 Now, when you're -- when you're talking about the 12 months with

20 UNPROFOR up to November 1992, that answer relates to not just Bosnia but to

21 Croatia and, of course, aspects of Serbia's involvement and Bosnia and

22 Herzegovina. So you're talking -- the personal contacts with political

23 leadership is all over that area, isn't it?

24 A. Yes, it is, and it also includes President Tudjman and President

25 Milosevic.

1 Q. And so far as your personal contacts with Mr. Krajisnik are

2 concerned, we can -- can we narrow it down to this, that first of all you

3 say that you came into contact with him just on one day of the Sarajevo

4 airport negotiations? Is that correct?

5 A. That's correct.

6 Q. You then came into contact with him, as you've described, on a

7 number of occasions where you and he were both present in your different

8 capacities at the international conference, at meetings in early -- well,

9 the first half of 1993.

10 A. That's correct.

11 Q. Do you remember that you also did meet Mr. Krajisnik on an

12 occasion when you went to Pale and Mr. -- General Panic was also present on

13 that occasion? Do you have any recollection of that?

14 A. No, I don't. My recollection is that I met General Panic in

15 Lukavica and that he also came to the PTT building and that I transported

16 him to the Marsal Tito Barracks and left him there overnight and picked him

17 up again the next morning. I have no recollection of going to Pale, in

18 fact, at any time for a meeting; although, I do acknowledge that during

19 1993 I certainly -- wrong. Probably later in 1992 I visited some of the

20 Serb gun positions in the area of Pale that my observers were manning. So

21 in short, I -- I don't recall ever having a meeting in Pale.

22 Q. But there may be no big issue here, Mr. Wilson. If -- if Mr.

23 Krajisnik -- if Mr. Krajisnik should say that he -- he did on one occasion

24 meet you to whatever extent in Pale, you're not saying it wasn't so, are

25 you? You're just saying you don't remember.

1 A. I'm saying I don't remember it.

2 Q. But so we therefore have, if we do, for the sake of today's

3 purposes, we'd add such a meeting to the list. We're talking about three

4 categories of meeting; one of them the single meeting, airport

5 negotiations; the second category, as we've said, the international

6 conference; the third category, again, the single meeting, if Mr. Krajisnik

7 is right, in Pale. And that's it. There's no other occasion that you say

8 you ever met Mr. Krajisnik?

9 A. No. But I -- I did meet him while I was in the same area, in the

10 same room with him on many occasions in my role at ICFY, and not always in

11 Geneva, but on other occasions.

12 Q. Mm-hm. You -- you never actually sat down -- well, it doesn't

13 matter whether you sat down. You never actually had a conversation

14 yourself with Mr. Krajisnik, did you, Mr. Wilson?

15 A. No, I can't recall that I did.

16 Q. And if you had had a conversation, it would have had to be

17 through an interpreter because I take it you -- you did not at the time

18 anyway - whether you do now - you did not speak Mr. Krajisnik's language.

19 A. No, and nor to my knowledge did he speak English.

20 Q. You are correct about that, Mr. Wilson, just to make that clear

21 to you.

22 The -- the airport negotiations that you've described, then, the

23 last day that you say that Mr. Krajisnik came to those

24 discussions/negotiations, was that the same day that you recall an

25 agreement being signed?

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1 A. Yes, it is.

2 Q. Were you present at any actual signing?

3 A. I believe I was, yes.

4 Q. And who did you observe signed?

5 A. I believe it was Dr. Karadzic signed on behalf of the Serbs.

6 Q. On that final day -- and it was just that one day, according to

7 you, that Mr. Krajisnik was present - and I'm not challenging that there

8 was no other occasion, Mr. Wilson - on that last day, was there anything

9 significant which remained to be negotiated and resolved before the

10 signing?

11 A. I'm sorry, you'll have to rephrase that question. I mean, there

12 -- there were many items of detail that had to be sorted out by General

13 MacKenzie and Lieutenant Colonel Gray in terms of the implementation of the

14 plans. If you're talking about were there any further matters unrelated to

15 the plan, I'm not quite sure what you mean.

16 Q. I will rephrase it, then. I'll put it in a completely different

17 way, Mr. Wilson. On that day that you say Mr. Krajisnik was added to the

18 group and the same day -- that being the same day that the agreement was

19 signed, was there anything of significance remaining to be negotiated on

20 that day and resolved, as opposed to the signing of the agreement?

21 A. Well, the proposal in regard to Sarajevo at that time was that it

22 be demilitarised, and it was to happen, as I understood it, in two phases:

23 Phase one was the opening of the airport; phase two was the withdrawal of

24 heavy weapons out of range of the airport.

25 Mr. Thornbury came -- came down to Sarajevo with a brief that we

1 would concentrate on phase one and phase two, the demilitarisation of

2 Sarajevo, would be addressed at a later date.

3 The Bosnian Serb president from the Bosnian Presidency was very

4 keen to negotiate stage two at that time. So it was certainly a matter

5 that was yet to be resolved, even after the signing of the airport deal.

6 Does that answer your question?

7 Q. On the day that you've described that Mr. Krajisnik came and the

8 agreement was signed, did you and as far as you're aware other people

9 present at that meeting, turn up that day in the clear expectation that

10 there was going to be a signing because for practical purposes they got

11 agreement on that phase of the negotiations?

12 A. Actually, we were quite pessimistic when we turned up on that

13 day. The Serb side had been quite inflexible in the previous few days of

14 negotiation, and it was only on the evening before the last day when they

15 realised that it was not possible for them to retain practical control of

16 the airport, that they indicated that they might be prepared to in fact

17 hand over the airport, as had originally indicated. So when Mr. Koljevic

18 and Mr. Krajisnik were present on the last day, we took that as a very

19 positive sign.

20 Q. So the process you've just described, you -- you were pessimistic

21 but at some point on the evening before this -- this day you received some

22 indications that the Serb position was becoming more cooperative.

23 A. That's true.

24 Q. So that -- to just slightly reput the question: On the actual

25 day, having had that indication the evening before -- on the actual day,

1 you were turning up with a -- an expectation there was going to be a

2 signing that day.

3 A. Not necessarily, no. As I said, there was an indication of

4 greater flexibility on the evening before, but these things come and go in

5 negotiations in that part of the world. We really thought that on the 5th

6 of June that if -- if we couldn't get a - an agreement on that day, it was

7 all over and we would have to try at a later time. And as I indicated,

8 when we saw the expanded leadership there, we were then -- we then realised

9 after we had arrived that maybe we had a chance.

10 Q. Do you recall anything that was actually in dispute on that last

11 day and still the subject of active disagreement and negotiation?

12 A. No, I can't.

13 Q. The two phases or two stages, if you like, were these, weren't

14 they: That, first of all, the airport -- the agreement was reached that

15 the airport should be opened for humanitarian aid; and then the second

16 stage, that the airport was turned over to United Nations control?

17 A. That's not my understanding. My understanding was -- well,

18 perhaps there's some semantics here. But our --

19 Q. You explain it the way you -- you recall it, Mr. Wilson, please.

20 A. My understanding, that the offer was that the airport would be

21 handed over to the United Nations so that humanitarian aid can flow.

22 And secondly, when that had been achieved, there would be

23 negotiations about the demilitarisation and the withdrawal of heavy weapons

24 from around the Sarajevo area.

25 I can't envisage that -- that we would have negotiated on the

1 basis that humanitarian supplies would have gone through the airport and

2 been controlled and delivered by the Serbs. It would not have been

3 practical. I'd had numerous discussions with Mrs. Plavsic about the

4 possibility of road transport running humanitarian supplies into the city.

5 She and General Mladic had said this was logistically very difficult

6 because of the many different areas the transport would have to transit

7 before it got to Sarajevo. My recollection is that the proposal was the UN

8 would have the airport. It was the Serb position that they would retain

9 control of the airport, and this was unacceptable to the UN.

10 Q. Now, you -- you said a few moments ago -- I asked you whether you

11 could recall anything actually in dispute on that last day and still the

12 subject of active disagreement and negotiation, and you very fairly said

13 you couldn't. You had also given evidence - and this was at page 37 of

14 yesterday's transcript - that on that last day Dr. Karadzic had at some --

15 had at some point taken General Mladic out of the room, evidently to the

16 room next door, and one could hear a violent argument between the two of

17 them, and then when they came back into the room, Dr. Karadzic announced

18 that the Serb side was prepared to accept the agreement. Mladic no longer

19 raised any objections to it.

20 Now, the first question is: It appears to follow, but can you

21 confirm, then, that you -- you don't actually -- you don't actually know

22 the specific content of that argument that you overheard between Dr.

23 Karadzic and General Mladic?

24 A. No, it was conducted in their language.

25 Q. But it was in some way obvious to you, was it, that General

1 Mladic was saying "no" to the signing of the agreement, was it, and that

2 Dr. Karadzic was saying "yes"? Was it -- was it as simple as that?

3 A. Throughout the whole negotiations, General Mladic had said no, he

4 couldn't hand over the airport. Serb forces had fought for it, lives had

5 been lost, and he wouldn't be able to convince his soldiers that they

6 should give up this hard-won territory. I think he continued that position

7 until this argument that I've related to the Court.

8 Q. But that's -- so that's the -- that's the most you can tell us

9 about that argument, its content, what it was about?

10 A. Indeed. I mean, during the negotiations, as I'd indicated

11 yesterday, the Serb position was to retain control of the airport while

12 there would be a -- a pseudo-presence of the UN, but in practical terms the

13 Serbs would retain the military advantage of holding that ground and

14 operating the airport. And they'd made many proposals, which on the

15 surface could appear to be quite innocent, but clearly though intended to

16 give them some sort of foot in the door to be able to maintain control.

17 Mr. Thornbury and I were quite insistent that the UN had to wholly control

18 that airport and the access to the airport, but there would be concessions

19 to both parties to make sure that the airport was used for that purpose and

20 that purpose alone and that the Muslims would not be able to exploit in a

21 military sense the fact that the Serbs had given up this territory.

22 Q. You described in your evidence - same page yesterday, page 37 -

23 how on a number of occasions from late May and through the airport

24 negotiations you had asked General Mladic whether he was subordinate to and

25 responsible and that -- and you said and responsive to the political

1 leadership.

2 The -- when you asked him, you're talking, are you, about asking

3 him in the course of these meetings either in the actual meeting or just

4 outside the meeting during a break; is that what you're talking about?

5 A. In both those situations. This had become almost a joke between

6 General Mladic and I because the frequency that I'd raised it during --

7 during May. I guess the thing that promoted these series of discussions

8 was Colonel Kadja [phoen] having wronged the Bosnians -- the Bosnian

9 Presidency brought an audiotape of General Mladic directing artillery fire

10 against Sarajevo, and they played it at one of the negotiating sessions for

11 the evacuation of the barracks. Colonel Kadja identified the voice as that

12 of General Mladic and indicated that General Mladic was out of control and

13 doing his own -- his own thing.

14 Q. So is this right, that the -- when you raised this issue with

15 General Mladic, it was raised in the context that you knew and he knew that

16 there were these concerns being expressed by JNA representatives that he,

17 General Mladic, was in some way out of control, acting independently and

18 irrationally? Is that correct?

19 A. I don't know what General Mladic knew about the attitude of the

20 JNA. I was not privy to -- to his knowledge or concerns in that regard. I

21 -- I simply raised them because there was this concern that maybe this man

22 was unstable and he was acting in -- in such a -- an erratic way or that

23 the conduct of the operation was being done in such a brutal way, such an

24 indiscriminate way. I was trying to get some sort of idea who was actually

25 running this operation against Sarajevo.

1 Q. Well, it's just that whatever -- whatever degree of -- or

2 whatever note of jocularity you managed to inject between you two senior

3 military men in the course of your discussions, the serious point must have

4 been, Mr. Wilson, when you raised this issue with General Mladic that he

5 was in some way acting out of control.

6 A. Absolutely. And I indicated to him that what he was doing was in

7 contravention of the Geneva Conventions at least once, if not more.

8 Q. So when he made it clear to you on -- these are your words in

9 your evidence yesterday. When he made it clear to you on a number of

10 occasions that he was responsible or responsive to his political

11 leadership, his assurances given to you were given in response to what must

12 have been understood as a -- some form of quite serious accusation about

13 his conduct.

14 A. Indeed, yes.

15 Q. And you -- you said in your evidence in relation to this same

16 topic - this is at the foot of page 42 yesterday - you said: "General

17 Mladic is a very strong personality," Mr. Wilson. That's not, I think,

18 going to be one of the issues in dispute in this case. "General Mladic was

19 a strong personality, a very strong personality, but nevertheless," you

20 said -- the bottom line is, "He did what his political masters told him to

21 do."

22 Now, you've given the Trial Chamber a description of that

23 particular incident on the last day of the airport negotiations, the

24 violent disagreement between Dr. Karadzic and General Mladic. Otherwise,

25 do you have yourself any firsthand knowledge of that bottom line operating

1 and doing what General Mladic doing what his political masters told him to

2 do?

3 A. Well, I think the -- the airport negotiations are a very stark

4 example of a military leader who would consistently, over a number of days,

5 hold a position which was contrary to that of the political participants in

6 the negotiations, suddenly changing his mind and -- and adhering to his

7 political masters. Other than that, one has to say that the operations of

8 the Bosnian Serb army conducted over a wide area were -- were quite a

9 sophisticated military set-up, well organised, required good command and

10 control, communications, direction. All of this was no accident. This was

11 a -- quite a professional military that was getting on with the job that

12 they had to do. And it appeared to be directed at achieving the political

13 aims that were quite clearly stated; that is, setting up separate Serb

14 territory. It's no accident that the military operations seemed to mirror

15 requirements of the political ambitions.

16 Q. Well, Mr. Wilson, that's an expression of view by you on what we

17 might call the -- the big issues in this case. My -- and ultimately

18 there's big issues really before the Trial Chamber to be resolved over a

19 period of about two years. But the specific question -- let's leave aside

20 the airport agreement and airport negotiations now. Do you have any

21 firsthand knowledge of that bottom line coming into operation and General

22 Mladic being told by his political masters, "You do this, Mladic"?

23 A. Well, there's the -- the barracks negotiations. Once again,

24 General Mladic's position on this was that there was to be no handover of

25 weapons. In the end, somebody told him that -- that there would be a

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1 handover of weapons. In fact, two semitrailer loads of small arms were

2 handed over on the road outside the PTT. It was part of the deal for the

3 evacuation of the Marsal Tito Barracks. Now, whether it was the JNA, in

4 the form of General Panic, or whether it was the Bosnian Serb political

5 leadership, I can't say. But here is another case of a man who

6 dramatically changed his position, and he'd expressed violent opposition to

7 a particular proposal.

8 There are also numerous times where relatively small

9 humanitarian activities were negotiated by Mrs. Plavsic and implemented

10 with the assistance, or at least the tolerance, of the Serb military. I

11 presume there'd been some communication between Mrs. Plavsic and General

12 Mladic on these matters.

13 Q. When you talk about the international conference meetings at

14 which you were an observer, as you've described, you said - and this is

15 page 47 of yesterday's transcript - you said, "Mr. Krajisnik didn't have a

16 lot to say." You assume this is because he didn't speak English. You say,

17 "Certainly he was very carefully consulted by Dr. Karadzic," -- by Mr.

18 Karadzic or Dr. Karadzic. "He sat at a central part of the table and he

19 seemed to be a very important member of the delegation."

20 Now, Mr. Wilson, you -- I take it you obviously knew what actual

21 official positions the various people concerned held at the time when they

22 attended these meetings.

23 A. By then I did, yes.

24 Q. Well, but you say "by then." When did you -- did you -- did you

25 know at the time of the airport negotiations precisely what Mr. Krajisnik's

1 official position was in Republika Srpska?

2 A. No, I didn't. The Republic -- Serb Republic was a new entity to

3 me, at least at that time. I can never recall having met Mr. Krajisnik

4 before that. I don't know that his -- his title was introduced at that

5 meeting. It was evident to me that he was simply a very important member

6 of the team who had been brought in to help make a decision on the airport.

7 I got to know his appointment later in UNPROFOR, probably saw it in various

8 pieces of paper. But I -- I don't recall, again, meeting Mr. Krajisnik

9 until Geneva.

10 Q. So when you got to know -- after the airport negotiations you got

11 to know of his appointment, what, then, did you learn was his appointment?

12 A. I understood he was the speaker of the Serb Parliament.

13 Q. And when he attended the international conference meetings, was

14 your understanding the same, that he -- he was -- well, he was there as a

15 member of the negotiating team, of course, but that the -- behind that, the

16 basis of his attendance was that he was speaker of the Republika Srpska

17 Assembly?

18 A. Yes, I understood that he retained that position.

19 Q. As an observer at that international conference, was it -- did

20 you have some knowledge and understanding of what would have to happen to

21 any agreement that was accepted by the Bosnian Serb leadership when they

22 went home?

23 A. Are you talking about selling it politically to the population,

24 or are you talking about military implementation?

25 Q. Well, let's take just the first and then see whether it's

1 necessary to go to the second. So yes, talking about political

2 implementation.

3 A. Well, clearly politicians on all sides would have had to sell the

4 settlement to their respective populations. Yes, I understand --

5 understood that the delegation would have to sell it to their own

6 population.

7 MR. STEWART: I have no more questions, Your Honour.

8 JUDGE ORIE: Thank you, Mr. Stewart.

9 Mr. Harmon, any need for re-examination?

10 MR. HARMON: May I just have one moment, Your Honour?

11 JUDGE ORIE: Yes.

12 MR. HARMON: No, Your Honour, I have no additional questions.

13 Thank you.

14 [Trial Chamber confers]

15 JUDGE ORIE: Mr. Wilson, I would have a few questions for you in

16 relation to your testimony of yesterday. Let me first try to find the

17 exact words.

18 Questioned by the Court:

19 JUDGE ORIE: Yesterday you were asked whether at the

20 negotiations where Lord Owen was in charge, whether there were any claims

21 expressed of ethnic cleansing committed by the Serbs in Bosnia, and your

22 answer said -- in your answer, you said, "Yes, there were." And then you

23 explained how Lord Owen on occasions when negotiations were not progressing

24 smoothly would sometimes lecture the participants on their conduct and on

25 their failure to respect human rights.

1 Ethnic cleansing and violation of human rights is, of course,

2 not the same. How should I understand your answer that -- should I

3 understand you yes, to be that specifically ethnic cleansing was then

4 mentioned, or should I understand your answer to be that Lord Owen was

5 mainly lecturing them on violation of human rights in more general terms?

6 I would like to add to that question: You said that he was

7 rather blunt in his expression. Perhaps you could give an example -- well,

8 could you please answer my question and perhaps if you could illustrate it

9 by some of the language as used by Lord Owen. I would highly appreciate

10 that.

11 A. Your Honour, Lord Owen spoke about both ethnic cleansing and

12 human rights. He was talking about things like prisoner of war camps or

13 detention centres. He was talking about the physical process of ethnic

14 cleansing of areas. He was talking about military operations conducted

15 against civilian populations. He was covering the broad gambit of

16 activities, not only by the Serbs but also certainly by the Croats and to a

17 lesser extent by Presidency forces.

18 JUDGE ORIE: Yes.

19 A. I'm afraid I can't recall a particular sentence, but I mean,

20 there was absolutely no doubt. You know, he was talking in the most direct

21 language, that you people are doing this and you're going to be held

22 accountable for it, that you're clearing out these areas, you are murdering

23 people. These were -- it's the sort of words. He was not using abusive

24 language, per se, but certainly very direct language.

25 JUDGE ORIE: Yes.

1 A. More so where -- Mr. Eagleburger who I think was a former US

2 Secretary of State at a plenary -- at a central session. Once again, he

3 spoke in the most direct terms to all of the parties about the nature of

4 their activities in the former Yugoslavia. And he also said that they

5 would be held accountable. And that was certainly translated to everybody

6 present. There's no doubt in my mind that the leaders of all of the

7 delegations who attended, ICFY, were well aware of the co-chairman's

8 position and the international community's position on the conduct of

9 operations down there.

10 JUDGE ORIE: Yes. Would that include, just to say it as

11 clearly, would that include specific reference to driving out civilian

12 population from the area where they lived?

13 A. Yes, sir. Yes.

14 JUDGE ORIE: Yes. And then I take it civilian population of the

15 other ethnicity, since you were talking about Croats and Bosnian Serbs and

16 to a lesser extent Muslims, but that would mean Serbs against non-Serbs,

17 Croats against non-Croats, I take it, Muslims against non-Muslims?

18 A. Yes. Although, I -- to be honest, I think the -- the Muslim

19 activities were probably more directed in military areas of their control.

20 Whether it was ethnically motivated, I don't know. But clearly on the

21 Croat and Serb side there were ethnic issued involved.

22 JUDGE ORIE: Yes. You were asked yesterday about the positions

23 the Serbs took in respect of living -- the ability to live with non-Serbs.

24 And then you said that they indicated that it was no longer possible for

25 the three nations to continue to live together in harmony in Bosnia and

1 Herzegovina, and it was necessary to physically and politically separate

2 the nations.

3 What did you mean exactly by "physically separate the nations"?

4 A. My understanding of their position was that they needed a

5 separate political entity, a separate republic, that they were not

6 interested in the sharing of power with other nationalities to run that

7 republic, and that the -- the territory of that republic should be

8 ethnically pure Serb.

9 JUDGE ORIE: Does this understanding include, in terms of

10 physical separation, that where the areas would be of mixed ethnicity that

11 the non-Serb population could not remain there?

12 A. That's true, Your Honour. During the negotiations in Geneva,

13 territories which were under Serb control but which still had other

14 nationalities residing in them, during negotiations these were identified,

15 and it was generally agreed by all of the parties, all three parties, that

16 if necessary those non-Serb people or, depending on the territory, would be

17 relocated, physically relocated as part of the settlement. It seemed to be

18 an accepted norm by the three parties that in -- if it had to be a division

19 and it did involve the physical removal of people who were still residing

20 there in 1993, then that would be the case.

21 JUDGE ORIE: Thank you. This brings me to my next question, but

22 again in order not to misquote you, I'd rather find the literal text.

23 You suggested, "There was never any really denial of facts on

24 the ground that areas had -- that longer," and I understood that to be no

25 longer, "had their original population, that there had been already in the

1 process of the war ethnic cleansing or relocation of population." You said

2 "ethnic cleansing or relocation." What exactly is the difference for you?

3 A. There is no difference. Just a redundancy in that statement.

4 JUDGE ORIE: Yes. Would that mean that the relocation you are

5 talking about at that moment, which you now say was equal to ethnic

6 cleansing, was done by force? Is that an element of ethnic cleansing for

7 you?

8 A. I was really referring to ethnic cleansing. There was no need

9 for me to use the words "or relocation."

10 JUDGE ORIE: Now but --

11 A. Simply redundant words.

12 JUDGE ORIE: Yes. But does that include force or threat?

13 A. "Ethnic cleansing" does -- does in my definition--

14 JUDGE ORIE: Yes.

15 A. -- include force or the threat of force.

16 JUDGE ORIE: Then I have one or two questions also on the

17 negotiations on the airport agreement. You were asked whether there was

18 anything left to negotiate after that day when you at least saw some

19 optimism. I'll try to carefully understand what you've said, and if I'm

20 not mistaken, you said that at the evening before they said that they might

21 give up - which they had refused until that moment - the control over the

22 airport. You also said that the next day there was not much to negotiate

23 anymore or -- but was it then already clear that they would give up the

24 control of the airport, or was that still to be negotiated during the next

25 day; the fact whether, and under what conditions?

1 A. Your Honour, the -- the last day of the negotiations started with

2 little change in the -- in the Serb position, although they had indicated

3 the night before that there might be some flexibility. Principally General

4 Mladic was still saying he -- he wouldn't comply, would not hand over the

5 airport. And it was a restatement of the Serb position that they would

6 like to retain these control positions so it would allow them to retain

7 effective control.

8 I can't recall the exact words now, but at some point in time it

9 was clear that Mr. Thornbury said to them, Look, if this is where -- where

10 we are and we can't make any ground, then I have to pack up and go back to

11 -- to Belgrade.

12 JUDGE ORIE: So the core issue was still there to be settled on

13 that final day; is that a correct understanding?

14 A. The issue was the control of the airport.

15 JUDGE ORIE: Yes. And did the Federation still insist on

16 including the second stage, the demilitarisation to be dealt with at the

17 same time, or --

18 A. The Presidency, Your Honour.

19 JUDGE ORIE: The Presidency, yes.

20 A. Yes, they did. In fact, it was quite late in the day before Mr.

21 Ganic and President Izetbegovic finally agreed and did so very reluctantly.

22 It may have even been in the evening.

23 JUDGE ORIE: Yes. Thank you for those answers.

24 Is there any need to put further questions to the witness, any

25 issue triggered by questions of the Bench?

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1 MR. HARMON: None on behalf of the Prosecution, Your Honour.

2 MR. STEWART: No, nor of the Defence, Your Honour.

3 JUDGE ORIE: Thank you.

4 Mr. Wilson, this, then, concludes your evidence in this Court.

5 I'd like to thank you for coming and having answered questions, both of the

6 parties and of the Bench, and I wish you a safe trip. In your career

7 saying "a safe trip home" might not -- where your home is might not always

8 be that clear, but at least a safe trip wherever you go at this moment.

9 You're excused.

10 THE WITNESS: Thank you, Your Honour.

11 JUDGE ORIE: Madam Usher, please escort Mr. Wilson.

12 [The witness withdrew]

13 JUDGE ORIE: Mr. Harmon it's clear that your next witness will

14 not be called until tomorrow, as far as I understand.

15 I inform the parties that we'll have a late start tomorrow in

16 the afternoon due to scheduling problems. One of the Judges of this Bench

17 has to attend a Status Conference. So we assume that we'll start at 3.30.

18 But, of course, I cannot give a guarantee that it could not be a little bit

19 later.

20 I'd like to use the time. First of all, we have to deal with

21 the exhibits in relation to Mr. Wilson.

22 Madam Registrar.

23 THE REGISTRAR: Exhibits P720, P721, and P722.

24 P720 and P722 still require B/C/S translations.

25 MR. HARMON: Your Honour, when those are available to us, we

1 will submit them.

2 JUDGE ORIE: Yes. I didn't hear any objections until now. The

3 Defence, of course, will have an opportunity to object as soon as the

4 translations are there.

5 P720 to 722 are admitted into evidence, provisionally to the

6 extent that translations are still expected.

7 Then I'd like to spend some time on procedural issues. First of

8 all, is there any observation to be made by the parties, perhaps briefly at

9 this moment, on the guidance the Chamber gave yesterday on how to deal with

10 expert reports?

11 Mr. Stewart, do you have any observations?

12 MR. STEWART: Only this, Your Honour: We -- we have, I confess,

13 hadn't had an opportunity to gather on the Defence side to -- to consider

14 it in any depth. We -- we should just say they are guidelines, we

15 understand, that expressly any submissions as to particular material going

16 in will be listened to and considered and so on. So on that basis, nothing

17 is shut out if it actually does turn out to be of significance.

18 And, Your Honour, we -- we certainly support the notion of not

19 having absolutely hundreds and hundreds of documents and having them

20 churned through hour by hour as we're in court. So, Your Honour, we don't

21 really have any -- any further observations than that, on the basis that

22 there's always that flexibility, and if the material is needed it -- it

23 will go in. We don't have anything further to observe now.

24 JUDGE ORIE: Yes. Of course, the main reason for suggesting

25 this is that if the supporting material would not allow for the opinion and

1 the conclusions drawn by the expert, that then they should be on our table

2 and we should be able to identify any deficiencies in the way the expert

3 worked. And at the same time, we want to avoid that just for -- as a

4 matter of not missing one, to have 500 documents on our table because we

5 are afraid that we might need one of the 500 at a later stage and therefore

6 identify them in an early stage.

7 MR. STEWART: We understand that, Your Honour, and perhaps, as

8 an example, if an expert says or assumes that a particular decision was

9 minuted on a particular day and it is minuted and there isn't challenge as

10 to the authenticity of the minute, then that may be that that piece is

11 paper is --

12 JUDGE ORIE: Yes.

13 MR. STEWART: -- just not worth Your Honours having. We

14 understand that's an illustration of what Your Honours had in mind.

15 JUDGE ORIE: Yes. If the conclusions of the expert are not

16 supported by the material he claims that supports his conclusion, then we

17 should look at that material.

18 MR. STEWART: Indeed, yes.

19 JUDGE ORIE: I also add to that that in our experience we have

20 also seen that we get the minutes of a specific meeting, which is 100 or

21 120 pages, and we need only one or two pages of that meeting. So under

22 those circumstances, if one of the parties would like to tender this

23 relevant portion of that meeting, we could try to find a solution by

24 saying, This is the cover page, this is the first page which says those and

25 those are present, parties do agree that those present did not leave

1 halfway or that not others came in. And then we concentrate on, well,

2 let's say, the page -- the relevant page and perhaps the page prior to that

3 and the page after that, but not necessarily have six times copied 120

4 pages where we actually are in need only of three, four, or five pages at

5 the most.

6 Mr. Harmon, I should have given you an opportunity first before

7 I commented on what Mr. Stewart said.

8 MR. HARMON: Well, I appreciate being given the opportunity,

9 Your Honour.

10 I will say that at first blush this causes the Prosecution some

11 concerns, and we are interested in reaching practical solutions. We

12 appreciate the Court's views. The Court always takes a pragmatic approach

13 to these issues. And we are interested in finding solutions that address

14 our needs and the Court's needs.

15 Let me give you an example of what concerns us: We have a

16 limited amount of time in dealing with the experts in their testimony.

17 Some experts four hours. But their expertise covers an area of subjects

18 that is quite broad. There may be a number of documents, for example, in

19 the expert's testimony or in the expert report that are not controversial,

20 that are not in any way at all an issue but which are significant evidence

21 for us. We want to be able to rely on that evidence that has not been

22 exposed in the limited four hours or six hours of examination allotted to

23 the Prosecutor's Office that is not controversial, and we don't want it

24 excluded, for example, under the possibility, as articulated in the

25 position -- in point number 5. So there's that concern for us.

1 The expert reports rely on a significant number of footnotes. I

2 was looking, for example, earlier today at Ewan Brown's expert report. It

3 had, I think, 800-plus footnotes. Many of those footnotes had been already

4 -- the documents contained in those footnotes have already been introduced

5 elsewhere. In Patrick Treanor's expert report, for example, references to

6 the Assembly session meetings. Those are already in evidence. Those are

7 not going to be at issue in any -- or not going to be brought out

8 necessarily or at great length in the testimony of Mr. Brown.

9 However, in the final arguments, in the final trial brief, we

10 want to be able to cite two documents that do support Mr. Brown's

11 conclusions. And because we don't bring them out during the course of the

12 examination, the four hours, for example, that we have with the expert, or

13 because they are not in controversy, we fear the possibility of the

14 evidence being excluded that we wouldn't necessarily address during our

15 examination of the witness but that we may want to rely upon and cite to

16 the Court during the final trial brief, during the final submissions to the

17 Chamber. So that's what concerns us, the exclusionary aspect of this.

18 I don't think the Court intends to be unduly restrictive. I

19 think the Court will be open and flexible. And I want to reiterate that

20 we're certainly more than willing to sit down with counsel to try to

21 identify in expert reports what issues are in controversy so we can hone in

22 on those. I will make that proposition to Mr. Stewart later. If we could

23 somehow reach an agreement on how to identify those issues, we'll focus on

24 those issues.

25 But I think it's important for the Court to be able to have

1 during its deliberations essentially the archive of material that's

2 available to the expert to support certain positions. I may not in the

3 course of the examination of the witness make accurate assessments as to

4 what could be of interest to the Trial Chamber. It may well be that in

5 deliberations the Trial Chamber says in its deliberations, Let's consider

6 this particular point. What is there to support that point? I'd like to

7 see what supports the expert's view on that.

8 If during the course of the examination of the expert that

9 hasn't been touched upon and if under point 5 that would be excluded, then

10 it seems to me that the Court may potentially be handicapped in its

11 deliberations on particular points that were not identified by the parties

12 during the course of the examination of the expert.

13 Therefore, our view -- our concerns, Your Honour - and as I say,

14 we're willing to sit down and try to work this out in practical means - is

15 that exclusion could be detrimental both to the parties and to the Court in

16 its ultimate deliberations. I agree with the Court that a 170-page

17 document that has two pages of relevant information is what's important to

18 be considered by the Court, and we will take steps, and affirmative steps,

19 to identify those materials so as to make the tasks of the parties and the

20 Court sufficiently focussed on the issues and the matters that are at

21 issue.

22 Those are the views that we have and our -- and those are the

23 principal concerns that we have about the proposal. We understand that

24 it's only a proposal. My suggestion is that we consider this over the

25 upcoming days and deal with those, try to work these matters out with the -

1 - with the parties.

2 I know, for example, that considerable work has already been

3 done on structuring examinations of experts already that this report --

4 this proposal makes us go back to the beginning of that and try to take all

5 these concerns in, and it is a Herculean task to try to restructure these

6 testimonies in light of this proposal.

7 Those are my remarks, Your Honour.

8 MR. STEWART: Your Honour, may I -- may I --

9 JUDGE ORIE: May I first say one thing exactly, because we were

10 confronted with a similar Herculean task, that we came with it at least not

11 at the very -- at the eve before the experts would testify; therefore, we

12 tried to come with it a bit more in advance.

13 Mr. Stewart.

14 MR. STEWART: Well, Your Honour, a lot of what Mr. Harmon says,

15 in our submission, demonstrates what we respectfully suggest is the

16 considerable sense of the guidelines indicated by the Trial Chamber.

17 Mr. Harmon says, for example, that it may well be that in its

18 deliberations the Trial Chamber says, Well, let's consider this particular

19 point. What is there to support that point? I'd like to see what supports

20 the expert's view on that. We -- we understand paragraph 5 of the Trial

21 Chamber's guidelines to cover exactly that situation, among others. The

22 Trial Chamber then requests that information, because it does come to the

23 conclusion that there is a point there which really does require the

24 supporting material to be produced on reflection and could therefore ask

25 for it. So that's -- in a sense, that's -- that's not the biggest point.

1 The biggest -- or the bigger issue is this: That when Mr.

2 Harmon says that - and I'm paraphrasing here - he's really reluctant to

3 have this material put on one side because the Prosecution may, then, want

4 to refer to it in closing arguments. This is exactly the problem which, to

5 some extent, the Trial Chamber but certainly the Defence faces - and

6 perhaps the Prosecution would face it the other way round, although frankly

7 the Defence's rather more limited resources do give us rather less

8 opportunity - but Your Honours would have seen that we're faced sometimes

9 with an overwhelming amount of material, and then the Prosecution makes a

10 selection of items to actually bring forward for specific presentation to

11 the Trial Chamber. And the coincidence between what the Prosecution

12 actually brings up in the course of the witness's evidence and what might

13 subsequently be relied upon as being important is not always completely

14 clear.

15 And what the Trial Chamber's guidelines would achieve is that

16 the Prosecution then - and it will apply to us when it comes to our turn -

17 but the Prosecution then will be brought to focus on the important items

18 which it wishes to rely upon at the right stage, which is when the witness

19 is giving his evidence. So the Defence, then, are put in a fair position

20 to cross-examine on the specific focussed issues, and this stuff is not

21 left on one side buried in a -- a mountain of -- of paper to be unearthed

22 later.

23 JUDGE ORIE: Yes. Let one thing be clear: What the Chamber

24 intends is to find out where exactly the conclusions or opinions of the

25 expert ask for further exploration of the supporting factual material. Let

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1 me just give you an example: If a witness would say, In all municipalities

2 on from a certain moment bakeries were now called cafes in the future. And

3 if in the footnote he gives six decisions of municipal organs, then if

4 neither of the parties presents these documents, the Chamber on the basis

5 of the expert opinion could take into account that on from that moment

6 bakeries, at least in a number of municipalities, were called cafes.

7 If, however, one of the parties would say, Well, these

8 decisions say just the other way around, all cafes were now called bakeries

9 for the future, then of course we would have to look to that.

10 So, therefore, we want to identify when the witness appears what

11 factual supporting material -- because experts are not always best

12 qualified to establish underlying facts. It will very often be on the

13 basis of documents. We'd like to know at that early stage where this

14 material would need to be looked at in further detail before we could form

15 an opinion on -- we could assess whether or not we could accept the expert

16 opinion.

17 And, of course, if you'd say, Mr. Harmon, at the very end you'd

18 like to rely on that material, the whole exercises for trying to do that at

19 an early stage -- and I can imagine that the parties would just say, Well,

20 I might overlook one or two, so we'll give each other a margin of 10 or 20

21 sources that could be additionally - without, of course, any further

22 comment - but to give 10 or 20 of these sources to be made available if

23 need be. But we should take care that the remedy is not worse than the

24 illness. And if the remedy is let's put everything in because we might

25 miss one item, then the remedy has become worse.

1 I suggest to the parties that we'll have a break of half an

2 hour, that I'll then read a couple of decisions still pending, and that the

3 Chamber waits until further talks between the parties may have resulted in

4 suggestions on how to proceed further with the expert evidence.

5 We'll adjourn until five minutes past 4.00.

6 --- Recess taken at 3.32 p.m.

7 --- On resuming at 4.09 p.m.

8 JUDGE ORIE: I'll deliver a couple of decisions on behalf of the

9 Chamber. Prepare yourselves. There might be some five or six.

10 The first is a decision on motions for admissions of evidence

11 pursuant to Rule 92 bis in the cases of Witness Selak and Witness 665.

12 This is a decision on two Prosecution motions regarding the

13 evidence of two witnesses, Witness Selak and Witness 665.

14 The first motion is the so-called sixth motion for admission of

15 evidence pursuant to Rule 92 bis. One of the witnesses put forth in that

16 motion is Osman Selak. He has now been incorporated in what we now call

17 the fifth batch of 92 bis witnesses. The Chamber has now decided to treat

18 this case separately from the witnesses in the fifth batch because we have

19 been informed by the Prosecution that it would be possible to have Mr.

20 Selak scheduled to testify in the near future, if the Chamber would decide

21 to require him to be present.

22 The Chamber has considered the Defence's remarks on Selak, as

23 well as the Prosecution's reply. The Defence does not oppose admission on

24 the condition that there is an opportunity for cross-examination. The

25 Prosecution, as I have suggested already, does not object to cross-

1 examination. The Chamber is of the opinion that Selak's evidence meets the

2 92 bis admissibility requirements, but it is not fully admissible without

3 cross-examination. The Chamber will therefore admit the evidence, except

4 for the Tadic transcripts, which I'll treat separately, and on the

5 condition that Mr. Selak appears for cross-examination.

6 As for the Tadic transcripts, the Chamber does not find them

7 relevant. If the Prosecution -- and perhaps I should say that a bit more

8 precisely. That major portions of it, such as the military booklet of Mr.

9 Tadic, which has been dealt with extensively, we do not find that relevant,

10 and the Prosecution has made no selection, as the Defence has clearly

11 indicated. If the Prosecution would like to come back with a specific

12 request about portions of the Tadic transcripts, the Chamber is willing to

13 consider them.

14 In preparation for the hearing of the witness, the Prosecution

15 is requested to provide the Chamber with the exhibit marked P1582 in the

16 Brdjanin case. Lastly, the Chamber requests the Prosecution, prior to

17 handing the witness over for cross-examination, to examine the witness on

18 the meaning of the sentence at page 13069 of the Brdjanin transcript, lines

19 5 to 7.

20 I now turn to the motion concerning Witness 665. On the 22nd of

21 April, 2005, the Prosecution requested the admission into evidence of

22 certain excerpts of the witness's testimony in the Milosevic case, as well

23 as around 200 pages of transcripts from the Brdjanin trial, along with

24 certain exhibits. The Defence was late in responding. It first

25 communicated its position on the 12th of May, explaining that the lead

1 counsel had inadvertently overlooked the deadline. The Defence filed its

2 formal submission on the 17th of May, together with a motion for acceptance

3 of the late submission. The Chamber accepts the lead counsel's assurances

4 that this was an exceptional oversight and has therefore considered the

5 Defence's reply to the Prosecution's motion.

6 The Chamber accepts the Defence's position that the two portions

7 of the Brdjanin text, as identified by the Defence, are not appropriate for

8 92 bis admission and must therefore be redacted. This evidence is to be

9 elicited orally by the Prosecution when the witness attends, if the

10 Prosecution wishes to do so.

11 The Chamber, however, does not agree with the Defence's further

12 point that certain portions of the Milosevic text, as identified by the

13 Defence, constitute submissions by counsel and therefore are not evidence.

14 That text, in the Chamber's view, is admissible.

15 In conclusion, the Chamber decides to allow the Prosecution's

16 motion in relation to Witness 665, with the two exceptions mentioned above,

17 and on the condition that the witness is called for cross-examination.

18 This concludes the Chamber's decision on these two matters.

19 I will now turn to --

20 MR. STEWART: Could I just ask a question on that, Your Honour.

21 JUDGE ORIE: Yes.

22 MR. STEWART: Is it -- on that last point -- I'm not in effect

23 appealing the decision, but on that --

24 JUDGE ORIE: You wouldn't need anyhow.

25 MR. STEWART: Of course, Your Honour. I understand. I'd appeal

1 to somewhere else anyway.

2 It's only, perhaps, for clarification. Is it that -- did I make

3 a mistake somewhere in submitting that that material was not, in fact, part

4 of the witness's testimony or -- or is the Trial Chamber saying that it was

5 --

6 JUDGE ORIE: If you want to say that the words that appear there

7 are not words spoken by the witness, at least for the vast majority, then

8 it certainly must have been a mistake.

9 MR. STEWART: All right, Your Honour. I'll double-check that.

10 Yes.

11 JUDGE ORIE: Unless we made a mistake in reading it.

12 MR. STEWART: It is -- we all make mistakes, and I certainly am

13 not immune from that process.

14 JUDGE ORIE: Yes.

15 MR. STEWART: But I'd really thought I had identified the

16 witness as being part of the testimony but --

17 JUDGE ORIE: The witness will be called for cross-examination

18 anyhow.

19 MR. STEWART: Yes.

20 JUDGE ORIE: If you'd like to make any further submissions in

21 that respect on the basis that you might have been mistaken.

22 MR. STEWART: Well, that's certainly possible, Your Honour.

23 It's happened before, and it will probably happen again.

24 JUDGE ORIE: Yes. Then I now move to the decision on the

25 Defence's application for further cross-examination of Witness Bjelobrk.

1 For the sake of clarity, I will recall briefly the context in

2 which this submission was made. On the 9th and the 10th of November, 2004,

3 the Prosecution examined Mr. Bjelobrk for approximately three and a half

4 hours using the 89(F) procedure. On the 11th of November, the Defence

5 cross-examined the witness for approximately three hours. Before

6 commencing its cross-examination, the Defence informed the Chamber that it

7 had not had enough time to take full instructions from the accused and to

8 fully prepare the cross-examination.

9 At the end of the hearing on the same day, the Defence requested

10 the Chamber to recall Mr. Bjelobrk for further cross-examination if the

11 Prosecution did not agree to redact certain paragraphs of his statement.

12 The Chamber reserved its decision in order for the parties to have an

13 opportunity to discuss a possible redaction of the statement.

14 On the 28th of February, 2005, the Prosecution submitted a

15 redacted version of the statement to the Chamber and to the Registry, but

16 at the same time indicated that some areas of disagreement between the

17 parties remained. On April 6th, the Chamber declared that while it was not

18 inclined to allow further cross-examination, it would wait to hear further

19 from the Defence.

20 On the 11th of April, the Defence made its submissions through

21 the legal staff of the Chamber, arguing that Mr. Bjelobrk should be

22 recalled mainly because there remained significant unredacted paragraphs of

23 the witness statement on which the Defence had not had an opportunity to

24 cross-examine. Moreover, counsel for the Defence had been asked by the

25 accused to confront the witness with around 50 documents relating to

1 crucial parts of the witness's statement.

2 By e-mail dated the 13th of April, the Prosecution informed the

3 Chamber that while it considered that the Defence had sufficiently cross-

4 examined Mr. Bjelobrk, it was not opposed to the witness being recalled.

5 The Chamber has taken note of the fact that the Prosecution is

6 not willing further to redact the statement of the witness. The Chamber

7 has reviewed the paragraphs in dispute among the parties and the extent to

8 which the Defence has already cross-examined the witness on those

9 paragraphs. On this basis, the Chamber finds that further cross-

10 examination of Mr. Bjelobrk may assist with the determination of issues

11 central to the case as well as with the assessment of the credibility of

12 the witness.

13 The Chamber therefore grants the request, but limits further

14 cross-examination to a maximum of one hour and a half.

15 The Defence is requested to submit to the Chamber all documents

16 it intends to present to the witness three days prior to the scheduled date

17 for the continuation of cross-examination.

18 This concludes the Chamber's decision on the matter of Mr.

19 Bjelobrk.

20 The next decision is a decision on Defence motions to strike

21 evidence from the record.

22 This is a decision on two separate Defence motions to strike

23 portions of the testimony of Witness 73 from the public record.

24 One motion, made in court on the 18th of April, is a request to

25 strike from the record that portion of Witness 73's testimony in which the

1 witness asserted that the word - and I quote - "Momo", which came up in two

2 intercepts, was a reference to Momcilo Krajisnik. The transcript

3 references for that portion of testimony are pages 12250, line 2, to page

4 12269, line 17.

5 The Defence based its submissions on the prejudicial nature of

6 the evidence and its lack of probative value. It suggested that the

7 evidence be struck from the record with the provision for it to be placed

8 back on the record should corroborative evidence emerge. The Prosecution

9 did not respond to the submissions of the Defence on probative value but

10 suggested that the Chamber should reserve its ruling on the matter in the

11 event that evidence going to corroborate Witness 73's assertion should

12 emerge at a later stage.

13 In a second motion, made in court on the 14th of April - perhaps

14 I should call that the first motion - the other motion made in court on the

15 14th of April, the Defence requested that Witness 73's testimony on

16 transcript pages 12127 to 12130, concerning the issuance of firearm permits

17 over a ten-year period from 1981 to 1991, be struck from the record. The

18 Defence submitted that as no reference was made to any particular year

19 within that period and given that the SDS party was not formed until 1990,

20 the evidence was entirely irrelevant to the issues before the Chamber.

21 I will now briefly consider the law applying to motions of this

22 kind.

23 As the parties are aware of, there exists a distinction between

24 the admissibility of evidence and the Chamber's assessment of the weight

25 that should be given to that evidence. A decision to strike testimony from

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1 the record amounts to a decision that the testimony is inadmissible. The

2 standard for admissibility is found in Rule 89(C), which states that the

3 Chamber may admit any relevant evidence which it deems to have probative

4 value. The combination of relevance and probative value means that, to be

5 admissible, evidence must, on its face, have a tendency to advance the

6 proof of a factual allegation which is in issue.

7 On the other hand, in accordance with the opinion of Judge

8 Shahabuddeen in the Musema Appeal Judgement, the Chamber considers that

9 there is no requirement that evidence be shown to be reliable before it is

10 admitted. Rather, the reliability of evidence is a factor which goes to

11 the weight given to that evidence. Questions of weight are deferred to the

12 end of the case when the Chamber can assess the credibility, reliability,

13 and relevance of any one piece of evidence in light of all the evidence it

14 received.

15 I hasten to add to this that nothing in what I have said

16 excludes a finding at the admissibility stage that evidence is inadmissible

17 where it's so patently unreliable that it can have no probative value

18 whatsoever.

19 In applying the aforementioned legal principles to the first

20 motion, the Chamber considers that the evidence in question cannot be

21 considered entirely irrelevant to the determination of a factual allegation

22 in issue in this case, nor is the evidence to patently unreliable that it

23 is devoid of any probative value. The two specific points raised by the

24 Defence, namely, Witness 73's credibility on this issue and his alleged

25 failure to provide an adequate justification for his assertion regarding

1 Mr. Krajisnik, are clearly matters going to the weight that the Chamber

2 should give to this portion of Witness 73's testimony when it is assessed

3 in light of all the evidence received. They do not go to admissibility as

4 such.

5 The Chamber considers that this motion can be distinguished from

6 a previous decision of this Chamber to exclude a portion of the evidence of

7 Witness Music under Rule 89(D), which provides that evidence may be

8 excluded if its probative value is substantially outweighed by the need to

9 ensure a fair trial. In that case, the Defence was not in a position to

10 cross-examine Mr. Music on the portion in question due to the very late

11 disclosure by the Prosecution of evidence going to the core of the case and

12 due to the Defence having insufficient time to consult with the accused

13 about that evidence.

14 The portion of Witness 73's evidence that is now in question

15 arose from a question put to the witness by the Chamber. The Defence

16 subsequently availed itself of the opportunity to fully cross-examine

17 Witness 73 on his identification of "Momo" as Momcilo Krajisnik.

18 In relation to the other motion we are dealing with here, the

19 Chamber agrees with the Defence that evidence regarding firearms permits

20 issued between 1981 and 1992 -- 1991, I should say, without further

21 specific reference to any period within those ten years, is not likely to

22 be of much assistance to the Chamber. However, the threshold for the

23 admissibility of evidence is a low one. The indictment period covers the

24 second half of 1991. Again, therefore, this is not a case in which the

25 evidence concerned can be considered entirely irrelevant to the

1 determination of a factual allegation in issue. The fact that the witness

2 testified generally about permits issued over a ten-year period is a

3 question going to the weight that the Chamber should give to the evidence

4 at the end of the case. It does not render the evidence inadmissible.

5 The Chamber wishes to remark that striking evidence from the

6 record is an extreme measure which is not to be undertaken lightly. It was

7 developed in the context of jury trials, where such measures may be

8 necessary to prevent jurors from considering evidence that is unfairly

9 prejudicial. In the present circumstances, however, there is no reason to

10 believe that the accused will suffer prejudice if the relevant portions of

11 Witness 73's testimony are allowed to remain on the record for the Chamber

12 to evaluate in due course and in light of all the evidence. I do wish to

13 emphasise again that mere admission of evidence gives no hint of the final

14 weight, if any, that the Chamber will give to it.

15 Both motions to strike evidence from the record are therefore

16 denied. The parties are invited in future to consider such motions as a

17 measure of last resort, to be invoked only when evidence is patently devoid

18 of any relevance or probative value, or when admission of the evidence

19 would impact negatively on the fairness of the trial.

20 This concludes the Chamber's decision and also guidance on this

21 matter.

22 Before I proceed with the next one --

23 [Trial Chamber and legal officer confer]

24 JUDGE ORIE: I now continue with the statement of the reasons

25 for the oral grant of protective measures to Witness 101.

1 On Monday, the 9th of May, the Chamber granted an oral request by

2 the Prosecution to have Witness 101 testify in closed session.

3 In its submission, the Prosecution observed that the witness was

4 in a unique position in relation to a large-scale incident. The

5 Prosecution submitted that the nature of the witness's evidence would

6 therefore lead to his identification if he were to testify with protective

7 measures less restrictive than closed session.

8 The Prosecution also informed the Chamber that, after testifying

9 with a pseudonym and face and voice distortion in another trial in this

10 Tribunal, both the witness and a relative of his were subjected to threats

11 of a serious nature. The witness twice received threatening telephone

12 calls, including one directly related to his prior testimony at this

13 Tribunal. On one occasion, a valuable asset belonging to the witness was

14 stolen with an accompanying threat that if he came to collect it he would

15 likely be killed.

16 The Prosecution further informed the Chamber that the witness's

17 family continues to reside in Bosnia-Herzegovina. Persons implicated by

18 the witness in serious crimes continue to reside in the same area.

19 The Defence did not oppose appropriate measures of

20 confidentiality for a portion of Witness 101's evidence concerning the

21 incident in question which the Prosecution proposed to tender under Rule

22 89(F). However, the Defence submitted that evidence concerning background

23 events, which the Prosecution proposed to lead viva voce, would not lead to

24 the witness's identification in and of itself. The Defence proposed that

25 the Prosecution proceed with appropriate caution, leading this portion of

1 Witness 101's evidence in open session, under pseudonym, with voice and

2 facial distortion.

3 The standard applied by this Chamber to requests for protective

4 measures is by now very well settled. The party seeking protective

5 measures must demonstrate the existence of an objectively grounded risk to

6 the security or welfare of the witness or the witness's family should it

7 become known that the witness gave evidence. It's usually sufficient for a

8 grant of protective measures if a party can show that a threat was made

9 against the witness.

10 The Chamber considers that the Prosecution established the

11 existence of an objectively-grounded risk in the case of Witness 101.

12 After an explanation by the Prosecution of the topics on which it proposed

13 to lead viva voce evidence from Witness 101, the Chamber was also satisfied

14 that measures less restrictive than closed session would not have dealt

15 adequately with the legitimate security concerns of the witness. In the

16 opinion of the Chamber, that evidence was likely to be of a sufficiently

17 detailed and distinctive nature, particularly regarding alleged

18 perpetrators of crimes and locations mentioned, to expose Witness 101 to a

19 risk of identification should he testify in open session.

20 This concludes the reasons for that decision.

21 The next decision I will read is an order for the lifting of

22 confidentiality on the testimony of Witnesses 73 and 239. This is a

23 decision concerning the private- or closed-session testimony of two

24 witnesses.

25 On the 18th of April, 2005, the parties undertook to identify

1 portions of the private-session testimony of Witness 73 which could be made

2 public. Moreover, on the 20th of April, they undertook to do the same with

3 respect to Witness 239. The parties forwarded the results of their

4 discussions by e-mail to the Chamber.

5 The Chamber has reviewed all of the portions of testimony

6 identified by the parties in respect of the two witnesses and considers

7 that they can be safely released to the public.

8 The Chamber therefore orders the lifting of private-session

9 confidentiality for the excerpts of Witness 239's testimony, as shown in a

10 handout which will be distributed by Madam Registrar. I kindly ask Madam

11 Registrar to file the handout when she has an opportunity to do so.

12 In relation to Witness 73, the Chamber received a list

13 identifying dozens of excerpts of private-session testimony that can be

14 made public, as shown in that same handout just distributed. In the

15 interest of giving effect to the agreement of the parties, the Chamber

16 orders the lifting of private session for all those excerpts. However,

17 with respect to future agreements on portions of private-session testimony

18 that may be released to the public, the Chamber invites the parties to

19 consider the value of releasing portions of transcript that amount to no

20 more than a few lines concerning technical or procedural matters and which

21 make no sense at all in isolation. A good example, or perhaps I should say

22 an extremely bad example, of one such portion identified by the parties in

23 respect of Witness 73 comes at page 12265 of the transcript. The parties

24 have asked the Chamber to release to the public the following line. I

25 quote: "Would there be any copies available? Yes."

1 This concludes the Chamber's decision and guidance in this

2 matter.

3 I cannot resist to add to that that it seems that at least the

4 one who proposed this - and I think it was from the Prosecution side - had

5 more time available than was good for him or her at that time. That's just

6 one example. I think the English Queen would have said that she would not

7 be amused by it.

8 Then I come now to the last decision I'll deliver today, and

9 that's the order for the lifting of confidentiality on the testimony of

10 Witness 60.

11 On the 21st of March, 2005, the Chamber directed the Prosecution

12 to review the private-session testimony of Witness 60 in order to identify

13 excerpts which could be released to the public. This was done on the 23rd

14 of March, and the Chamber issued its decision on the 27th of April at the

15 last housekeeping session. At the same time, the Chamber invited the

16 Defence to apply for further disclosure if it considered that other

17 portions could be safely released to the public.

18 The Defence made its application by e-mail dated the 6th of May,

19 and the Prosecution responded on the same day. The Defence replied on the

20 7th of May.

21 The parties are now in agreement that lines 11 to 19 on

22 transcript page 10837 should be released to the public. The Chamber has

23 reviewed the material and agrees that nothing in those lines identifies the

24 witness.

25 With respect to the portion of the text running from page 10871,

1 line 9, to page 10873, line 1, the Chamber has reviewed the parties'

2 submissions as well as the material. The Chamber is of the view that the

3 text on transcript page 10872, line 21, beginning with - and I quote -

4 "What I would like to know ..." and running to transcript page 10873, line

5 1, up to and including - I quote - "... young adult in that same village,"

6 can be safely released to the public. I note that this text is of little

7 interest, since it does not contain any evidence.

8 The Chamber therefore requests the Registry to release to the

9 public the portions of the transcript identified above.

10 This concludes the Chamber's decision on Witness 60's testimony.

11 It's unnecessary to say that not the whole portion suggested was released

12 to the public, but only part of it.

13 This concludes this decision.

14 We might find time tomorrow and the day after tomorrow to deal

15 with a few other procedural matters as well, for example, thinking about

16 the Brcko dossier. But for the day, we'll conclude.

17 We'll adjourn until tomorrow, half past 3.00 in the afternoon in

18 this same courtroom.

19 --- Whereupon the hearing adjourned at 4.46 p.m.,

20 to be reconvened on Thursday, the 19th day of

21 May, 2005, at 3.30 p.m.

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